Govindan Sasi vs State of Kerala

S. Marimuthu, J.—This revision has arisen challenging the confirmed conviction and sentence delivered by the VIth Addl. Spl. Sessions Judge, Thiruvanan the apuram in Crl. A.No. 301 of 1991. The revision petitioner was charge sheeted under Secs. 427 and 304A IPC and Sec. 3 of the Explosives Substances Act, 1908 (hereinafter referred to as "The Act") by the Sub Inspector of Police, Nemom. The 1st Addl. Asst. Sessions Judge, Thiruvananthapuram, who conducted the trial, found the revision petitioner guilty under Secs. 304A and 427 IPC and thereby sentenced him to undergo rigorous imprisonment for one year under each section and the sentences were to run concurrently. The above conviction and sentence was confirmed by the Sessions Judge in the above said Crl. Appeal, Crl. A. No. 301 of 1991. With regard to the conviction and sentence of the lower appellate court, the submission of the Learned Counsel for the revision petitioner would be that even a shallow consideration of the oral testimony projected by the witnesses would satisfy this Court that Secs. 304A and 427 IPC are not attracted. When that be so, the conviction rendered by the court below has to be necessarily set aside by this Court. The learned Public Prosecutor, on the other hand, would advance an argument on the ground that the revision petitioner was charge sheeted under Sec. 3 of the Act also. But, however, as there was no reliable evidence with reference to the punishment under Sec. 3 of the Act, the revision petitioner was found guilty only under Sec. 304A and 427 IPC and the conclusion of the court below in finding the accused guilty under the above two sections of the IPC is proper and they need no interference by this Court, in this revision.

No doubt, it is well settled proposition of law that when concurrent findings have been rendered by the courts below, normally, this Court need not interfere into those findings under Sec. 482 Cr.P.C. However, when there is a glaring infirmity and flaw in the discussion of evidence even with reference to the facts and on that basis when a wrong conclusion has been recorded by the courts below this Court can rightly invoke its power under Sec. 482 Cr.P.C. In that view of the proposition of law, I will look into the evidence adduced by the prosecution whether they have brought home guilt against the revision petitioner under Secs. 304A and 427 IPC.

The accident admittedly had occasioned on 19-3-1985 in the crackers manufacturing shed of the revision petitioner. The victim in the accident was an employee of the revision petitioner. Due to the accident not only the shed of the revision petitioner was completely burned but also some damage to the residential building of P.W. 1 was occurred who according to the prosecution, lodged the first information to the police. According to the prosecution case, the Sub Inspector of Police, soon after the accident was over, received a phone message and on receipt of the same he rushed to the spot and he did some work. The Investigating Officer has completely forgotten the statutory provision of Sec. 154 Cr.P.C. Admittedly, no case was registered on receipt of the phone message. Therefore, it can be rightly stated that the case was not registered at the time of receiving the first information by the Sub Inspector through phone. The suppression of material aspects as well settled, a shadow of doubt shall fall on the prosecution case and that alone is sufficient to set the accused or the revision petitioner at large.

According to the prosecution the Sub Inspector after examining P.W. 1 and after visiting the scene of accident returned to the station, received a complaint from P.W. 1, the neighbour and registered a case in Crime No. 48 of 1985 of the Nemom Police Station under Secs. 427 and 304A IPC and Sec. 3 of the Act read with Sec. 34 IPC. After investigation PW. 10, the Sub Inspector of Police, lodged the final report before the Magistrate under Secs. 427 and 304A IPC and Sec. 3 of the Act. The final report would disclose that the revision petitioner was running the crackers manufacturing business without validly obtained licence. P.W. 10 in the witness box before the trial court has unambiguously deposed that the revision petitioner has obtained licence to run the business of manufacturing crackers from the Addl. District Magistrate, Thiruvananthapuram. It is also his further version that he has seized the papers relating to the licence from the revision petitioner and has kept them in the police station. When that be the crystal clear evidence of P.W. 10 in respect of the licence, I do not understand how he made such an allegation in the final report that the revision petitioner was running the crackers manufacturing business without licence.

Section 3 of the Act is as follows:

Punishment for causing explosion likely to endanger life or property:-- Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished who transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added.

The above Section is obviously clear that explosion caused is likely to endanger life or property the punishment comes under it. As per this section the punishment care be awarded with transportation for life for any shorter term to which fine may be added, etc, when a self contained penal section is provided in the Act, there is no necessity to include the penal section of the IPC.

However, the courts below found the revision petitioner guilty under Secs.427 and 304A IPC. No punishment was awarded under Sec. 3 of the Act by the trial court on account of the fact that consent was not obtained by the prosecuting agency to proceed under the Act, as provided in Sec. 7 of the Act. The prosecution in this context deserves a comment by this Court. The prosecution cannot take two penal sections from two separate enactments for the same offence. In the instant case, as I have pointed out above, Sec. 3 of the Act is a self contained section to render punishment on commission of any of the offences under the said Act. When that is so, there is no necessity on the part of the prosecution to invoke the parallel section from the IPC, namely Sec. 304A. Probably, it appears that incase of their failure under the Act in not getting consent from the Government concerned to proceed the prosecution they would take shelter under the penal section of the IPC. As a matter of fact that tactics had been played by the Investigating Officer in this case. Such tactics of the Investigating Officer would not be countenanced by a chit of this Court. On the other hand, that is a matter to be deprecated.

For a sake of alternative discussion and deliberation, taking the charge under Sec. 427 and 304A IPC is proper, I can look into the evidence of the prosecution whether they are reliable and sufficient to fasten the criminal liability on the revision petitioner under Sec. 427 and 304A IPC.

Revision petitioner, no doubt, has given an answer while he was examined under Sec. 313 Cr.P.C. that he and his wife are not possessing any licence. On the above answer given under Sec. 313 Cr.P.C, no conviction can be based upon without substantial evidence on the side of the prosecution beyond reasonable doubt. In other words, the statement or the answers of the accused under Sec. 313 Cr.P.C. is not a substantial piece of evidence and as per law, the accused is examined under the above said section after the conclusion of the trial to know what were the materials placed by the prosecution against him during the trial and what was his understanding and reply to those incriminating circumstances placed by the prosecution. It is a defence of the revision petitioner that he is not directly responsible for any rash or negligent act. The Supreme Court is clear in a judgment reported in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, that to bring an accused person under Sec. 304A IPC, he ought to have taken a direct part in the commission of the rash and negligent act. In the absence of it, he cannot indirectly brought into Section 304A IPC. It is also the ditty of the prosecution as per the verdict of the Supreme Court that the accident has occurred without interference of any third agency and that has occurred only due to the direct act of the accused. In the instant case, the evidence of PW.10 alone is sufficient to throw away the prosecution case. For, it is his version that he did not investigate in that one, namely, whether the accident was due to electric short circuit or some other defect in the electric connection. When that be his version, the submission of the Learned Counsel for the revision petitioner that the accident might have been occurred due to the electric defect cannot be ruled out. And indeed, such suspicion raised by the Learned Counsel for the revision petitioner-accused should be expelled by the prosecution by proper investigation. Yet another submission of the Learned Counsel for the revision petitioner would be that even apart from the direct control and supervision of the manufacturer, herein the revision petitioner, due to some defect in the explosives or act of the victim the explosion might be caused and to expel such doubt, the examination of the Explosive Expert is an essential one. For this suspicion raised by the Learned Counsel for the revision petitioner there is also no answer from the Investigating Officer to root out such suspicion. On the other hand, he very casually deposed that he did not examine any Explosive Expert. Such answer has also to be, not only disapproved but also to be condemned. On account of the above evidence of P.W. 10 alone (Investigating Officer)without any hesitation a finding can be recorded that the prosecution has miserably failed to bring home the guilt under Secs. 427 and 304A IPC.

In the result, the revision petition is allowed by setting aside the affirmed conviction and sentence recorded by the VIth Addl. Special Sessions Judge, Thiruvananthapuram. The revision petitioner is set at liberty.