Pularu Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- [b.p. sinha, c.j.,; j.r. mudholkar,; k.c. das gupta,; n. rajgopala ayyangar, jj.] the appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening the provisions of the mines creche rules, 1946, under which the owner of every mine employing women was required to construct creches for the use of the women employees and also to appoint a "creche-in-charge" for the supervision of the creches. their contentions mainly were (1) that the mines creche rules, 1946 stood repealed as the mines act, 1923 itself under which those rules were framed were repealed by the mines act of 1952 and (2) that the said rules having been framed under s. 30(bb) of the mines act, 1923, could not be deemed to be rules made under the corresponding s. 58(d) of the 1952 act the requirements of which were different from those of s. 30(bb) of the 1923 act. on behalf of the manager a further contention was raised that he was not liable for the contravention of r. 7(1) under which he had no duty to perform and no question of his omission to appoint a creche-in-charge arose. held, per sinha, c. j., s. k. das, das gupta and ayyangar, jj., that the regulations framed tinder s. 30 of the mines act, 1923, survived the repeal of that act. criminal appeals nos. go to 106 of 1959, followed. the mines creche rules, 1946, framed under s. 30(bb) of the mines act of 1923 covered a part of the ground that was covered by the provisions of s. 58(d) of the mines act of 1952, and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of s. 24 of the general clauses act and operate as rules under the 1952 act. contravention of r. 7 of the mines creche rules, 1946, was in law contravention of a rule under s. 58(d) of the 1952 act within the meaning of s. 73 of the act. under s. 18(1) of the mines act, 1952, the manager, the agent and the owner are responsible for observance of the mines creche rules which form part of the conditions of employment of female labour engaged in "mining operations" and under subs. (2) of s. 18 each of them shall be deemed to be guilty of the contravention of any rule by "any person whosoever", unless he proves that he took all reasonable means to prevent such contravention. the manager in the present case not having proved that he took all reasonable means to prevent the contravention of r. 7 by the owner even though the rule in terms laid no duty on him, must be deemed to be guilty of the contravention. state government, m. p. v. deodatta diddi, a.i.r. (1956) nag. 71, held inapplicable. g. d. bhattar v. state, a.i.r. (1957) cal. 483, the view making the manager liable to be approved. per mudholkar, j.-in the mining industry a "mining operation", as contemplated under s. 18 of the mines act, is understood to mean an operation undertaken for the purpose of mining minerals and cannot be extended to mean "management of mines" such as employment of labour and providing amenities to employees etc. the manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his own duty under r. 7(1) of the mines creche rules. sub-s. (2) of s. 18 would also absolve the manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention". but there is nothing in the act or the rules which empowers the manager to enforce the performance by the owner of his duty under sub-r. (1) of r. 7 of the mines creche rules and the manager was therefore not liable for the breach of that rule.     - the accused were arrested and at their instance some weapons like tabbies and lathis were recovered. 1, 3 and 5 and held that they are the residents of the same village to whom the accused was well known and held that their evidence to the extent that the appellant was the first to open the attack and inflicted the fatal injury could be relied upon and, therefore, he could be convicted under section 302, i. khanduja, learned counsel for the appellant submits that the trial court has rightly held that it was dark and when the witnesses have implicated as many as eight accused and when their evidence was rejected in respect of seven of them it could be highly unsafe to convict the appellant on the same evidence.1. this appeal is filed under the provisions of the supreme court (enlargement of criminal appellate jurisdiction) act for offences punishable under sections 148, 302, 302 read with 149, i.p.c. the trial court acquitted all the accused. the state preferred an appeal. the high court acquitted a-2 to a-8 but convicted the appellant under section 302, i.p.c. and sentenced him to undergo imprisonment for life.2. the prosecution case is as follows:the deceased. suddhu kurmi and all the accused and material witnesses p.ws. 1, 3 and 5 belong to village bhathlokale. the deceased had two houses one old and the other new. the houses of the accused were located quite closely. the further case of the prosecution is that there was some misunderstandings between the deceased and the accused families and on 22-11-78 at about 7 p.m. the deceased was going from his new house to old house and when he covered a distance of five paces the accused came there armed with tabbal and lathis. the appellant before us who was armed with a tabbal opened the attack and hit the deceased with the tabbal on his head. thereafter it is alleged that the other accused surrounded and assaulted the deceased. the occurrence was witnessed by p.ws. 1, 3 and 5 who were also related to each other. the deceased died and the report was given by p.w. 1 at police station lormi on the next day. the doctor p.w. 9 who conducted the post-mortem found only two external injuries; one was an incised wound 8' x 1' on the head which resulted in the fracture of skull bones and the other injury was only a lacerated wound. the investigation was completed and the charge-sheet was laid. the accused were arrested and at their instance some weapons like tabbies and lathis were recovered.3. the prosecution mainly relied on the evidence of p.ws. 1, 3 and 5 who are direct witnesses and the medical evidence. before the trial court it was urged that the occurrence time was 7.20 p.m. and it was highly impossible for anybody to identify the assailants, as has been spoken by p.ws. 1, 3 and 5. the trial court looked into the almanac and came to the conclusion that at 7. p.m. it must have been dark and, therefore, it would not have been possible for the witnesses 'to identify the assailants. mainly in that view of the trial court acquitted all the accused.4. in the appeal the high court considered the evidence of p.ws. 1, 3 and 5 and held that they are the residents of the same village to whom the accused was well known and held that their evidence to the extent that the appellant was the first to open the attack and inflicted the fatal injury could be relied upon and, therefore, he could be convicted under section 302, i.p.c.5. in this appeal shri s. s. khanduja, learned counsel for the appellant submits that the trial court has rightly held that it was dark and when the witnesses have implicated as many as eight accused and when their evidence was rejected in respect of seven of them it could be highly unsafe to convict the appellant on the same evidence.6. we have examined the evidence of p.ws. 1, 3 and 5 direct witnesses. merely because it was 7 p.m. , it cannot be said that they could not have been able to identify the assailants when the occurrence took place in the open air. that apart all the three eye- witnesses have consistently deposed that it was the appellant who first came forward and attacked the deceased. therefore, that provided a clear opportunity for the three eyewitnesses to have identified the appellant. the medical evidence to that extent corroborates the evidence of three eye-witnesses. therefore, the high court, in our view, was right in holding that the appellant dealt a single blow on the head which unfortunately resulted in the fracture of the bones.7. that takes us to the nature of the offence. all the three eye-witnesses have spoken that the appellant dealt only one blow with the implement. having regard to the time and the surrounding circumstances it is difficult to hold that he intended to cause the death of the deceased particularly, when he was not armed with any deadly weapon as such. as an agriculturist he must have been having a tabbal in his hands and if in those. circumstances he dealt a single blow it is difficult to convict him by invoking clause (1) or (3) of section 300, i.p.c. it cannot be said that he intended to cause that particular injury which unfortunately resulted in the fracture of bones. therefore, the offence committed by him would be one amounting to culpable homicide punishable under section 304, part-ii, i.p.c. we accordingly set aside the conviction of the appellant under section 302, i.p.c. and sentence of imprisonment for life awarded thereunder. instead we convict him under section 304, part-ii, i.p.c. and sentence him to undergo rigorous imprisonment for seven years. the appeal is partly allowed to the extent indicated here-inabove.