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Judgment
This Criminal appeal under Section 378(III) of Cr.P.C. has been filed against the judgment and order of acquittal dated 27.11.2015 passed in Criminal Case No.5681/2007 (State of M.P. vs. Ataulhaq) by the learned Judicial Magistrate First Class, Sagar (M.P.), whereby the respondent (hereinafter referred to as 'the accused ) has been acquitted of the offence under Section 304 -A of IPC.
Briefly stated, the prosecution case is that The prosecution case in brief is that on 10.08.2007 at 09:45 AM, work on the wall of an under-construction drinking water hut was going on at Platform No. 2 towards Katni. Due to the collapse of the under-construction drinking water hut wall, two girls got trapped under the said wall. One girl died. Information of the incident was given at that time by the on-duty G.R.P. staff and Sub-Station Manager, West Central Railway Sagar to the Police Station G.R.P. The other child was taken to the hospital After being taken to the hospital, she died during treatment, information of which was given to Gopalganj Police Station by District Hospital Sagar.On that basis, Marg No. 43/07 and 44/07 were registered and investigation was conducted under Section 174 Cr.P.C. During the investigation it was found that the place of occurrence, the platform, is a public place where the general public comes and goes.Near the under-construction drinking water hut there was no indicator, board signaling construction work, nor any barricading or fencing around the under-construction site. For the construction of the under-construction drinking water hut, the authorized contractor Ata Ul Haq, Civil Side Engineer P.R. Patil, Railway Engineering Officer, showed such negligence by the authorized contractor for the construction of the under-construction drinking water hut, Ata Ul Haq, Civil Side Engineer P.R. Patil, Railway Engineering Officer, a case was registered against them and other railway officials. Statements of witnesses were recorded, the accused persons were arrested, and after complete investigation, the chargesheet was submitted in the court.
After completion of investigation, charge-sheet was filed in the court.
4 . The learned trial Judge on going through the evidence available in the charge sheet framed charges against appellant for the offence punishable under Section 304A of IPC, which he denied and claimed for trial.
5 . In order to bring home the charges, the prosecution has examined as many as 12 witnesses, namely, Majhar Khan (PW-1), Beni Bai (PW-2), Pappu Bansal (PW-3), Punabai (PW-4), Gopal (PW-5), Ramkumar Shrivastava (PW-6), Rani (PW-7), Mahesh Bansal (PW-8), R. K. Dixit (PW-9), Dr. Subhash Jain (PW-10), Bhumeshwar Tripathi (PW-12) and placed Ex.P/1 to P/21, the documents on record. In defence, the respondents/accused did not choose to examine any witness.
The learned Trial Court having analyzed and marshalled the testimonies of witnesses and the evidence available on record found that the prosecution has failed to prove its case beyond all reasonable doubts and eventually acquitted the accused of the charges under Section 304 -A of IPC. Hence, this appeal.
It is submitted by the learned counsel for the State that, earlier at the first instance, learned Judicial Magistrate First Class has convicted the accused for the offence under Section 304 A of IPC but in appeal, the appellate Court remanded the matter to the trial Court and trial Court again passed the judgment, which is impugned judgment, whereby, the accused has been acquitted on the ground that the offence could not be proved by the prosecution. However, the prosecution has examined Bhuwneshwar Tripathi (P.W.12) who has proved the documents Exhibit P/19, Ex. P/20 and Exhibit P/21 which clearly reflects that the accused was negligent in supervision and therefore, accident took place. Therefore, the offence under Section 304 A has clearly been established against the respondent. In view of the aforesaid, it is contended that the judgment of acquittal passed by the learned trial Court is erroneous and unsustainable in law. Accordingly, it is prayed that the present appeal be allowed, the impugned judgment of acquittal be set aside and the respondent/accused be convicted and sentenced in accordance with law.
I have heard the learned counsel for the appellant and perused the record meticulously.
At the outset, it was incumbent upon the prosecution to establish that the accused contractor was responsible for the accident which allegedly occurred at the construction site in terms of the agreement executed with the Railways. In this regard, the prosecution examined Bhuvneshwar Tripathi (P.W.12), who merely exhibited documents Exhibit P/19, Exhibit P/20 and Exhibit P/21. Exhibit P/19 reveals that Item No.11 of the special conditions of the agreement provides that, for execution of the work, the contractor was required to appoint a Graduate Engineer and that site supervision was to be carried out by such Engineer. Item No.17 further stipulates that the contractor was obliged to take all necessary precautions for the safety and security of the structure and, for that purpose, to appoint skilled personnel and experienced supervisors. The said document also mentions that the entire responsibility for the under-construction structure would lie upon the contractor. However, Exhibit P/19 is stated to be based upon the agreement containing the aforesaid special conditions and relevant clauses, but it is pertinent to note that neither the agreement itself nor the alleged special conditions and relevant clauses thereof were exhibited by the prosecution before the trial Court. Consequently, the defence was deprived of a proper opportunity to effectively cross-examine the witness on these material aspects. Further, Exhibit P/21 is merely a forwarding/covering letter through which an enquiry report was allegedly submitted by the Assistant Divisional Engineer, Sagar to the Station Incharge, GRP, Sagar. Significantly, the enquiry report itself has not been exhibited before the Court. Mere exhibition of the covering letter, in absence of the substantive enquiry report, is wholly insufficient to establish the guilt or liability of the accused contractor.
1 0 . Bhuvneshwar (P.W.12) was declared hostile by the prosecution. During his examination, he admitted the suggestion put forth by the prosecution that the contractor had appointed Dashrath Prasad as Engineer for site supervision and that Junior Engineers A.K. Borewal and Krishna Murari had been assigned to supervise the construction work. The witness further admitted that, had the water stand been secured by a proper boundary, the alleged incident would not have occurred. However, he voluntarily clarified that a boundary wall constructed with bricks had in fact been erected around the site, but the same had subsequently been removed by passengers. In his cross-examination, he categorically admitted that the construction site had been protected by a brick wall and barricades. The aforesaid admissions made by the witness clearly indicate that adequate safety measures and necessary precautions had been taken by the accused in respect of the construction work.
The observation of the learned Trial Court in the impugned judgment of acquittal is not found to be perverse, illegal. It is well-settled that an appellate Court ought not to interfere with an order of acquittal unless the findings recorded by the trial Court are perverse, manifestly erroneous, or wholly unreasonable.
In H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
(Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"20.Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] has held : (SCC p. 415, para 7)
“7.The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.”
21.This Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"12.No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-
"42.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as :
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive — inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court."...
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground for interference with the findings of the trial Court.
Consequently, the criminal appeal stands dismissed.