IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 Crl.Rev.Pet.No. 741 of 2000() ----------------------------- CRA.27/1999 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.480/1995 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER: ------------------ V.P. CHANDRAN, S/O. MOOTHORAN, KUNIYIL LAKSHAM VEEDU CHATHAMANGALAM, CHENNOTH DESOM, KOZHIKODE BY ADV. SRI.C.K.ABDUL RAHIM RESPONDENTS: ------------- STATE OF KERALA, BY THE SUB INSPECTOR OF POLICE, KUNNAMANGALAM, KOZHIKODE (CR. NO. 165 0OF 2994) BY PUBLIC PROSECUTOR SRI.K.C. SANTHOSH KUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 741 of 2000 * * * * * * * * * * * * * * * * * * Dated, this the 30th day of July 2008 ORDER The petitioner who was the 2 nd accused in C.C. No. 480 of 1995 on the file of the J.F.C.M., Kunnamangalam for an offence punishable under Sec. 304 A I.P.C. challenges the conviction entered and the sentence passed against him for the aforementioned offence. 2. 2. The case of the prosecution can be summarised as follows: On 2-12-1994 at about 1 p.m. the 2 nd accused who was working as a blaster under the first accused in the granite quarry by name Laila Small Scale Industries, Chennoth at Chathamangalam Village, without taking any precaution and in a rash and negligent manner blasted rock using explosives and suddenly one piece of rock flew and hit on the head of Pushpalatha who was taking her lunch in the quarry. Crl.R.P. No. 741 of 2000 -:2:- Pushpalatha succumbed to the injuries sustained to her head. The accused have thereby committed an offence punishable under Sec. 304 A I.P.C. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 18 witnesses as P.Ws 1 to 18 and got marked 8 documents as Exts. P1 to P8 and 2 material objects as MOs. 1and 2. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, acquitted the first accused who is the owner of the quarry but convicted the revision petitioner/2 nd accused of the offence punishable under Sec. 304 A Crl.R.P. No. 741 of 2000 -:3:- I.P.C. and sentenced him to simple imprisonment for six months and to pay fine of Rs. 1,000/- and on default to pay fine to suffer simple imprisonment for one month. On appeal preferred by the revision petitioner as Crl.Appeal No. 27 of 1999 before the Sessions Court, Kozhikode the learned II Addl. Sessions Judge as per judgment dated 7-4-2000 confirmed the conviction entered against the revision petitioner but modified the sentence by reducing the simple imprisonment to three months. the lower appellate court did not interfere with the fine portion of the sentence imposed. Hence, this Revision. 6. I heard both sides. 7. Out of the 9 witnesses cited by the prosecution as Pws 1 to 9 to prove the incident P.Ws.3 and 5 alone supported the prosecution whereas PWs 1,2,4, and 6 to 9 turned hostile to the prosecution. All of them are employees in the very same quarry. Even P.Ws 1, 3 and 5 who allegedly supported the prosecution did not clearly depose about any act of negligence on the part of the revision petitioner who was the blaster at the quarry. P.W.3 Crl.R.P. No. 741 of 2000 -:4:- is a relative of the deceased. According to her, the quarry is situated about 150 metres to the east of the office building and herself and P.Ws 1,4 and the deceased were taking their lunch from a place about 8 metres to the north of the office building. She further deposed that they used to have their lunch at the same spot which was considered to be a safe place for having food . She does not say about any act of negligence on the part of the accused except that a piece of rock suddenly came and fell on the head of Pushpalatha and she was rushed to the Medical College Hospital from where she succumbed to the injuries. The only other witness was P.W.5. He was a mechanic and employee in that quarry . All that he stated was that it was on account of the carelessness in blasting rocks that the occurrence took place. What exactly was the carelessness has not been spoken to by him. More over, this witness was not cross-examined by the accused. It is true that after the examination-in-chief of this witness the defence counsel prayed for time to cross-examine P.W.5 and the said request was turned down by the Court. Eventhough it was Crl.R.P. No. 741 of 2000 -:5:- contended before the lower appellate court that the accused was not permitted to cross-examine the witness and his application for the same was turned down by the trial court, the lower appellate court would say that no application could been seen seeking the recalling of P.W.5 and therefore his unchallenged testimony would support the prosecution case. Apart from the fact that P.W.5 has only deposed that the occurrence took place on account of the careless blasting of the rock by the accused and he did not mention about the act of carelessness, the accused had filed an application before the trial court as Crl.M.P. 4332 of 1997 under Sec. 311 Cr.P.C. seeking permission to cross- examine the witness. The said application was rejected by the trial court and that is why P.W.5 was not cross-examined. But even from the unchallenged testimony of P.W5 no specific act of negligence is attributed against the revision petitioner. But the testimony of P.W.1 shows that the piece of rock fell on the head of Pushpalatha after she heard a siren which means that the accused had sounded the siren before blasting the rock. Without Crl.R.P. No. 741 of 2000 -:6:- proving the rash and negligent act the prosecution cannot succeed in bringing home the guilt of the accused in a prosecution under SEc. 304 A I.P.C. When P.W.3 says that they used to have food from that spot which was considered to be a safe place for taking food , the occurrence was a sheer accident for which the revision petitioner cannot be held guilty unless there was any act of negligence and rashness proved against him. Merely because the mishap resulted in the death of an employee it does not follow-that the act was committed without any care and caution. The conviction recorded by the courts below overlooking these vital aspects cannot,therefore, be sustained. The revision petitioner is accordingly acquitted of the offence punishable under Sec. 304 A I.P.C. He shall be set at liberty. This Revision is accordingly allowed. V.Ramkumar, Judge. Crl.R.P. No. 741 of 2000 -:7:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 741 of 2000 * * * * * * * * * * * * * * * * * * Dated, this the 30th day of July 2008 ORDER