Chakkravarthy vs State

N. Arumugham, J.—The accused before learned Assistant Sessions Judge, Tirupattur, North Arcot District in S.C.97 of 1992 for the

offences under S.304(A) Indian Penal Code and Ss.39,44 of 46 of the Indian Electricity Act, who was convicted and sentenced to undergo

rigorous imprisonment for a period of six months and also to pay a fine of Rs.3,000/- in default to suffer rigorous imprisonment for 2 months under

S.304(A) Indian Penal Code and to pay a fine of Rs.300/- in default to suffer R.I. for one month under S.39 of the Indian Electricity Act and to

pay a fine of Rs.150/- in default to suffer R.I. for one month under S.44 of the Indian Electricity Act and also to pay a fine of Rs.75/- indefault to

suffer R.I. for one month under S.46 of the Indian Electricity Act, since lost the appeal preferred by him before learned Additional Sessions Judge,

Vellore, North Arcot District in C.A.158 of 1992 dated 29.1.1993, has come forward with this present revision assailing the impugned judgment

rendered by the Additional Sessions Judge, Vellore, confirming the conviction and sentence rendered by the trial Judge.

The deceased by name Boopathy is the son of P.W. 2 and they are the agriculturists, residing in Mambakkam Village, within the jurisdiction of

Tirupattur Taluk Police Station. On 20.12.1991 at about 5.00 a.m., Boopathi left his house for irrigating his lands. But, he did not return till about

noon on that day. Therefore, P.W. 2 along with his another son had been to these lands and found Boopathi lying dead in the land of one

Muthialagan, with burn injuries on his right hand. P.W. 2 gave a complaint to P.W. I on that date. Having endorsed the said complaint, P.W. I, the

Village Administrative Officer sent the complaint to Tirupattur Taluk Police Station. P.1 and P.2 were registered in Tirupattur Police Station in

Crime No. 815 of 1991 under S.304(A) Indian Penal Code, and the printed first information report, Ex. P. 10 was prepared. P.W. S Junior

Engineer attached to the Tamil Nadu Electricity Board, on 21.12.1991 at about 9.00 a.m. received a complaint from P.W. 2 stating that Boopathi

died by electrocution. Therefore, he reached the scene where the dead body was found at about 11.00 a.m. on that day and he saw the dead

body lying there. He also saw holes in the field for planting sticks. He has stated further that he stopped electricity supply on that day and the wire

put up in the fuse carrier in the board was found removed and another wire was found inserted. Then he gave a report Ex. P.7 to the police, in

furtherance of the investigation, prepared the observation mahazar Ex. P.3 and they brought sketch Ex. P.1l. M.O.I sticks, and M.O.2 plough

were recovered near the scene under Ex. P.4 mahazar and inquest was conducted and Ex. P.12 inquest report was prepared. Then, the dead

body was despatched to the Government Hospital, Tirupattur for autopsy along with requisition and accordingly, Dr. Selvaraj who was examined

as P.W. 6 conducted the post-mortem examination on the dead body and he issued Ex. P.9 post-mortem ''''examination certificate, in which he

opined that the deceased would have died due to electrocution. At about 5.00 p.m. on 22.12.1991, the accused/revision petitioner was arrested

by the Inspector of Police. Following the voluntary confession statement given by the accused, which was reduced into writing in the presence of

witnesses, thee admissible portion of which was marked as Ex. P.6, the police and the attestors to the mahazar were taken by the accused to his

house from where he took and produced iron rod and copper wire kept in a gunny bag M.Os.3 to 5 which were recovered under the cover of

mahazar Ex. P.5. It is, thus, having examined all the witnesses and completed the investigation, final report against the accused, for the offences

above referred to, was filed by the police before the Court of law.

When the accused was questioned under S. 313 of the Code of Criminal Procedure, on the basis of the incriminating portion of the evidence

appeared against him, he has denied his complicity in the crime in toto.

Having recorded oral testimony of nine witnesses, viz., P.Ws.1 to 9 and twelve documents viz., Exs. P.1 to P.12 besides M.Os.1 to 6, learned

trial Judge has held that the prosecution has established the guilt of the accused beyond all doubts sand accordingly, found the accused guilty for

the offences with which he was charged and consequently, convicted and sentenced him as above referred to. Aggrieved at this, the accused has

preferred on appeal before learned Additional Sessions Judge, Vellore in C.A. 158 of 1992 and thereby canvassed the correctness and legality of

the judgment rendered by the trial Court. After having reappraised the entire evidence, materials placed before him and the rival contentions on the

established facts learned appellate Judge rejected the appeal by confirming the verdict rendered by learned trial Judge. Questioning the propriety

and legality of the same, the accused has come forward with this revision.

I have heard the Bar for the revision petitioner and in contra, Mr. A.N. Rajan, learned Government Advocate on behalf of the respondent.

The very fact is that the deceased Boopathy was found dead by P.W. 2 at the first instance followed by P.W. 3, as corroborated by the

medical evidence, P.W. 6 doctor who did autopsy. As per the post-mortem examination certificate and the evidence of the doctor and Ex. P.1,

there cannot be any doubt or dispute about the fact that the deceased Boopathi one of the sons of P.W. 2 died on 20.12.1991 due to

electrocution. P.W. 2 is the person who saw the deceased lastly, before the deceased left the house and who saw the deceased at first when he

was found lying dead. But the question remains to be seen is as to who caused the act for the death of the deceased Boopathi, in other words to

say, whether the accused was responsible for any negligent and rashness act causing the death of the deceased, as contemplated under S.304(A)

Indian Penal Code or any provisions of the Indian Electricity Act, as has been established in this case, so as to mulct the accused with criminal

liability, the concurrent findings given by both the Courts below is that the prosecution has established the guilt of the accused for the offences with

which he was charged and accordingly, the accused was convicted and sentenced as above referred to. Mr. Karthic, Learned Counsel appearing

for and on behalf of the petitioner dwelt his attack on four folds, which are as follows:

(1) No materials or evidence were made available by the prosecution to show that the land in which the deceased was found lying dead belongs to

the accused or the accused had any nexus or reason or onerous duty for causing the death of the deceased by electrocution. (2) No iota of

evidence was made available by the prosecution to involve the accused in this case to mulct with the criminal liability. (3) There was no legal

evidence making the accused involved in this case in any manner. (4) The investigation claimed to have been done in this case is so shabby and not

upto the extent contemplated by the law of procedure. By stressing these four points, Learned Counsel has strenuously and valiantly submitted that

the prosecution had virtually and deliberately failed to establish the guilt of the accused for all the charges and that therefore, the impugned

judgment lacks legality and propriety and as such it is liable to be set aside.

I have heard learned Government Advocate who controverted each and everyone of the said contentions raised on behalf of the petitioner and

justified the impugned judgment rendered by learned trial Judge, as confirmed by the lower Appellate Judges. In short to say, learned Government

Advocate justified the consensus of the two Courts below in convicting and sentencing the accused.

In the context of the above rival position, the only question that stands before m to consider is whether the impugned judgment under this

revision is vitiated with any illegality and impropriety, warranting the interference of this Court. In the context of the rival position above referred to,

on the admitted facts, I have meticulously pursued the case records in its entirety. Particularly, I have gone through the observation mahazar and

rough sketch as well as the mahazar for recovery of the material objects. The very fact that the deceased Boopathy was found dead in the field

belonging to Meyyalagan due to electrocution cannot be suspected or disputed as claimed by the prosecution. But, the questions remain that as to

how, in what manner and what mode, when and where and from which service connection, electricity was taken and as to how the deceased was

electrocuted resulting in his death and they are all a mystery and unraveled by the police or by prosecution witnesses. It is uncommon and unusual

that holes for planting sticks were found in the cultivable land and it is unusual to claim that the holes were found for erecting sticks. Even it is

assumed that the said holes were found in the field of Meyyalagan for erecting sticks, I am rather surprised to note the fact that the sticks were

found connected with electric wires, probably for purpose of getting electric energy from some other place. Even assuming further that the sticks

were planted or erected under such circumstances in and around the place where thee dead body was found lying as claimed by P.W. 5, what was

the source of energy and from which place the electricity was taken illegally were not made clear. The evidence of P.W. 5 does not render any

help to the prosecution case. Everything in this regard remains as a mystery. The prosecution has not come forward with a real and true case about

the occurrence that happened.

Admittedly, there was no eye-witness in this case. None claimed to have seen the occurrence. What was claimed was that the dead body of the

deceased was found lying covered with coconut leaves at about 2:30 p.m. on the date of occurrence, with some burn injuries on the right hand.

There was no materials on records placed or recorded by the police Officer to show that in whose place the dead body was found lying. The

inquest report merely contains the reference only on he basis of conjecture and surmise which cannot at all be accepted for any reason. The only

conjecture on the basis of which the prosecution dwells its entire theory was that the accused used to work in the field of Meyyalagan and that

therefore, he would have been responsible for causing the death of the deceased. Mere suspicion however strong it may be, cannot at all be

deemed to be a legal evidence which would mulct the accused with criminal liability, the every foundation of criminal justice system is that the

prosecution must come forwards with all materials to be placed before the Court of law and thereby establish the guilt of the accused beyond the

realm of doubt and it is the only way in which a person can be attributed with criminal liability. Otherwise, if there are two views possible on the

materials available or the evidence placed, the benefit of doubt should necessarily be subscribed to only in favour of the accused and the above

position has become by now well settled.

Pertinent at this stage for me to point out one important aspect, viz., the investigating agency claims to have recovered M.Os.1 to 3 pursuant to

the voluntary confession statement given by the accused in this case. After registering the case, inquest was conducted. The inquest report reveals

the fact that the accused was involved and the deceased would have died due to electrocution. If the accused was found responsible, then the

investigating agency should have made a total search of the house and other places under the custody of the accused immediately. For the obvious

reasons, they did not do anything. But the unfortunate thing is, as claimed by the investigating agency, that they arrested the accused on the next

day and recorded his statement, the admissible portion of which is marked as Ex. P.6, and recovered M.Os.1 to 3 from the house of the accused

which is at a distant place from the scene of occurrence. The way in which the investigating agency investigated the case seems to be rather

amusing. In this context, if the facts of the instant case, as spoken to by the prosecution witnesses, is looked into, I fail to understand as to how the

learned trials Judge as well as the Appellate Judge has come to the conclusion that the prosecution has made out the case. But the converse is that

there is a deliberate and total failure of the prosecution in this legal exercise, as clearly established in this case. The next scope for the accused is

that in breadth and length the offence had not been spoken to or established. In short to say, no iota of evidence, worthy of any credit, has been

placed before the Court to prove the guilt of the accused. In other aspects, expect the mere conjecture and surmise, nothing has been placed

before the Court to involve the accused in this case. If at all the accused had got any source to get electricity connection, as claimed by the

prosecution, then we can attribute rashness and negligence on his part so as to attract the offence punishable under S. 304(A) of the Indian Penal

Code. The very origin or the source from which the electricity energy has been taken illegally or unlawfully has not been identified either by the

investigating agency or by the staff of the electricity department. If that is so, I am at every difficulty to understand the sustainability of the

prosecution case, even coming to the subsequent aspects, if electric energy was allegedly tapped elsewhere, it is rather amusing to see as to how

the accused was made involved for the alleged criminal activity for which the no iota of evidence is made available against the accused in this case.

Simply because some urge prevailed in the minds of panchayatars who allegedly took part in the inquest, the investigating agency had made the

accused involved as per the verdict of the panchayatdars. In short to say, the findings given by either the trial Judge or the Appellate judge is purely

based on mere imaginary things, conjectures and surmise and certainly not on the basis of any bit of legal evidence. In fact, learned Judges of both

the Courts below in more than one occasion, in their judgments have pointed out that there was no adequate evidence to prove the complicity or

nexus of the accused for the offences charges and tried. If that being so, it is rather amusing to note as to how they come to the conclusion of

convicting the accused on the basis of mere surmise and conjectures. I can say that the impugned judgment is lacking every of legality and

propriety and it is perverse in the sense of legal exercise and the whole evidence adduced by the prosecution has not been assessed and analysed

in its legal perspective, as held and decided by the Apex Court as well as High Courts in more than one case. The settled principle of law has not

at all been adhered to by both the Courts below. For the sake of brevity on the above observation. I do not propose to traverse each and every

one of the aspects adverted to by learned Judges of both the Courts below. I am fully satisfied to hold that the impugned judgment is lacking all

propriety and legality and as such it is liable to be set aside.

In the result, for all the foregoing reasonings, the revision succeeds and accordingly, it is allowed. Consequently, the judgments rendered by

both the Courts below above referred to are hereby set said and the accused is acquitted and set free. The fine amount paid if any, is hereby

directed to be refunded to the accused.