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Judgment
Appellant herein has filed this appeal challenging judgment and order dated 29.08.2005 passed by Sessions Court, Akola (Trial Court) in Sessions
Trial No.42/2005, whereby the appellant was convicted under Section 304 of the Indian Penal Code (IPC) and he was sentenced to suffer rigorous
imprisonment for 5 years and to pay a fine of Rs.500/Â.
The prosecution case was that; early in the morning on 12.01.2005, one Ashok Barde along with Samadhan Meshram had gone to the agricultural
field bearing Gat No.12 situated at village Kasarkhed, Taluka Murtizapur, District Akola, which was owned by one Dilip Bhatkar, for manufacturing
illicit liquor. It was the case of the prosecution that when the said Ashok Barde had gone to fetch firewood, he came in contact with a live wire in
the field and died on the spot due to electrocution. The said wire was said to have been used for illegally taking electricity from a high voltage 11
KV. electric cable passing above the said agricultural field. The case of the prosecution was that although the said field was owned by Dilip
Bhatkar, it was in possession of the appellant, who was carrying on agricultural operations therein. On this basis, it was alleged that the appellant
was responsible for causing death of said Ashok Barde.
The incident was reported to the police by Bhaskar Bhatkar (PW3), but the oral report was submitted by one Gautam Barde (PW1), on the basis of
which, First Information Report (FIR) was registered on 02.01.2005 itself. Investigation was undertaken by Kailash Pundkar (PW8), investigating
officer who recorded statements of various persons including the Police Patil and the owner of the field and on the basis of the material collected
during investigation, he filed the chargeÂsheet. It was claimed that record of rights (7/12 extract) pertaining to the said agricultural field, produced
by the owner Dilip Bhatkar (PW6), demonstrated that the appellant was in cultivating possession of the field when the said incident took place. The
appellant was charged with having committed the said offence under Section 304 of the IPC.
In order to prove its case, the prosecution examined 8 witnesses and the material witnesses were; Gautam Barde (PW1) the complainant who
submitted the oral report leading to registration of the FIR against the appellant; Bhaskar Bhatkar (PW3) Police Patil; Samadhan Meshram (PW5), an
eye witness to the incident; Dilip Bhatkar (PW6), owner of the field; Gangadhar Bhusari (PW7), Electrical Inspector and PSI Kailash Pundkar
(PW8), investigating officer.
The trial Court found that the evidence of these witnesses demonstrated that the appellant was indeed in cultivating possession of the said field on
02.01.2005, when the said incident took place. It was found that the record of rights (7/12 extract) demonstrated that while Dilip (PW6) was owner
of the field, the appellant was in cultivating possession for about one year. On the basis of the evidence of Police PatilÂAshok (PW3), the owner
of the fieldÂDilip (PW6) and the Electrical InspectorGangadhar (PW7) read with the record of rights (7/12 extract), the trial Court came to the
firm conclusion that the appellant was indeed in cultivating possession of the field when the incident took place. On this basis, the trial Court
convicted and sentenced the appellant under Section 304 IPC.
Mrs. Kirti Satpute, learned counsel appearing on behalf of the appellant, submitted that while there was evidence to show that the deceased Ashok
died because of electrocution in the field owned by Dilip (PW6), there was no reliable evidence on record to show that the appellant was in cultivating
possession of the said field. It was submitted that the record of rights (7/12 extract) was received from the office of Talathi and that in the absence
of Talathi being examined as a witness, the said document could not have been relied upon by the trial Court for convicting the appellant. It was
pointed out that there was no document prior to the date of the incident demonstrating that the appellant was in cultivating possession of the field. It
was further submitted that the Police Patil had no authority to depose on the question as to whether the appellant was in cultivating possession of the
field and that his evidence was rendered unreliable because it had come on record that he was cousin of the owner of the field i.e. Dilip (PW6) and
that he may have given evidence in support of the owner, in order to save him from liability. Similarly, the evidence of the Electrical InspectorÂ‐
Gangadhar (PW7) was also not reliable on the question as to whether the appellant was in cultivating possession of the field. On this basis, it was
submitted that when there was no reliable evidence to connect the appellant with the field where the incident took place, the trial Court could not have
convicted the appellant.
Per contra, Mrs. Geeta Tiwari, learned A.P.P. appearing for the respondentÂState submitted that the record of rights (7/12 extract), was sufficient
to prove that the appellant was in cultivating possession of the field at the relevant time and that Police PatilÂBhaskar (PW3), Samadhan (PW5),
owner of the fieldDilip (PW6) and Electrical InspectorÂGangadhar (PW7), had all stated in unison that the appellant was indeed in cultivating
possession of the field at the relevant time. It was submitted that the said evidence of the prosecution witnesses read along with the record of rights
(7/12 extract), proved the case of the prosecution against the appellant. On this basis, it was submitted that the appeal deserved to be dismissed.
Having heard learned counsel for the parties, the crucial question that arises for determination in this appeal is as to whether the prosecution was
able to place on record cogent oral and documentary evidence to connect the appellant with the aforesaid agricultural field where the incident took
place on 02.01.2005, resulting into death of Ashok. If the said connection was established by the prosecution, it was clear that the appellant was
indeed liable for being convicted under Section 304 of IPC. As noted above, in the present case, the main document on which the prosecution has
relied, is the record of rights (7/12 extract) dated 04.01.2005, wherein it is recorded that Dilip (PW6) was the owner of the field and that the appellant
was in cultivating possession thereof. This document was produced by Dilip (PW6) himself. Apart from this document and the oral evidence of
Dilip (PW6), the above mentioned prosecution witnesses had all stated that appellant was cultivating the field on the date when the incident
occurred. The facts of the present case, as they emerge from the material on record, show that the owner of the field i.e. Dilip (PW6) was clearly
interested in deflecting the liability that would have fallen on his head regarding the death of the said Ashok. There was no dispute about the fact
that the said Dilip (PW6) was owner of the field. In the absence of showing that some other person was in cultivating possession, the liability would
entirely fall on the head of the said witness Dilip (PW6). Therefore, when he produced the aforesaid document i.e. record of rights (7/12 extract), it
should have been accepted by the trial Court with some circumspection. The trial Court ought to have looked for corroboration. Apart from this,
the said document was admittedly dated 04.01.2005, which was after the incident had taken place. Its evidentiary value, therefore, stood
considerably weakened because it was a document that came into existence after the incident had taken place. This aspect also seems to have
slipped the mind of the trial Court.
The other material factor in the present case was that the author of the said document i.e. Talathi was not examined by the prosecution. In order
to prove the veracity of the said document, it was only the Talathi, who could have deposed before the Court. But, for the reasons best known to
the prosecution, he was not examined. A perusal of the evidence of the investigating officer (PW8) shows that in crossÂexamination, he has
admitted that he did not issue any letter to Talathi for obtaining information regarding cultivating possession of the field in question. This is a reason
given by him for not recording statement of Talathi. Although, the said witness had volunteered to state that he had issued a letter to Tahsildar but he
further went on to say that he did not get 7/12 extract from the Tahsildar. The investigating officer was expected to follow up the matter further
because there was necessity of an independent witness to depose before the Court in respect of the said document i.e. the record of rights (7/12
extract), particularly when it was a document that came into existence after the incident had occurred. This was a fatal flaw in the prosecution
case.
The other witnesses could not have vouched for the veracity of the said document pertaining to the record of rights. Police PatilÂBhaskar (PW3)
had deposed in favour of the claim that the appellant was in cultivating possession but it came on record that he was a cousin of the owner of the field
i.e. Dilip (PW6). There was every possibility that Police PatilÂBhaskar (PW3) was deposing in order to save the skin of his own cousin, although he
denied the said suggestion given to him in the crossÂexamination. The Electrical Inspector had no authority to depose on the question as to who was
in cultivating possession of the field.
Therefore, there was lack of cogent evidence on record to show that the appellant was indeed in cultivating possession of the field in question on
02.01.2005 when the incident took place. The prosecution, apart from examining the Talathi who was the author of the document, could also have
examined owners of the agricultural fields that were adjoining the field in question. The prosecution could have examined the persons in cultivating
possession of the said adjoining fields. But, no such effort was made by the investigating officer, either due to sheer negligence or because an effort
was being made to shield the owner of the field, Dilip (PW6) or some other person who may have been in cultivating possession of the field in
question. Once such serious doubt was created about the basic fact connecting the appellant with the incident in question, benefit ought to have
been given to the appellant.
But, the trial Court failed to appreciate this aspect of the matter and it proceeded on the basis that the said record of right (7/12 extract) was the
clinching proof of the appellant being in cultivating possession of the field. The absence of independent witnesses to prove the said fact was not
taken into account by the trial Court while passing the impugned judgment and order. This has rendered its findings against the appellant, perverse
and unsustainable.
In the light of the above, the instant appeal is allowed. The impugned judgment and order of the trial Court is set aside and the appellant is
acquitted of the offence for which he was charged. Bail bonds of the appellant stand cancelled.