CRIMINAL APPEAL
IN THE COURT OF THE DISTRICT & SESSIONS JUDGE
AT PUNE
Criminal Appeal No.
/2003
Shri _ N __ S _ P_
)
Age 36 years, occupation - service, )
Resident of Mehetre Vasti, Chikhali, )
Taluka Haveli, District - Pune.
)
Versus
The State of Maharashtra )
(Notice to be served on the )
District
Government Pleader, )
Pune 411 005 )
Appellant
(Original Accused)
Respondent
(Original Complainant)
CRIMINAL APPEAL U/S 374 OF THE CODE OF CRIMINAL PROCEDURE 1973
MAY IT PLEASE YOUR HONOUR
(I) Brief History of the Case is as follows:
1. That the appellant was charged with and tried for the offence
punishable u/s 304(A) of the Indian Penal Code and was
sentenced to suffer SI for one month and also to pay a fine of
Rs. 500/- I/d to suffer further SI for seven days.
2. That the said order of punishment has been passed by the
Hon'ble Judicial Magistrate, First Class, Vadgaon Maval, in
S.T.C.C. No. 1100/2000.
3. That the said judgment and order of punishment have been
passed by the Hon'ble Trial Court on 7.3.2003.
4. That the Hon'ble Trial Court was pleased to hold the appellant
guilty for the said offence u/s 304(A) of the Indian Penal Code.
That the alleged incident took place in the property bearing
Gat No. 1426, Mehetre Vasti of the revenue village Chikhali,
Taluka Haveli, District Pune, where the appellant was
constructing a new house for the residence of his family, while
the appellant himself is working in Mumbai, and he occasionally
and during holidays visits his family residing at the place
where he has constructed a new house.
5. That the said work of construction of the house was assigned
to a contractor, and the father of the appellant; who is old
enough, used to visit and supervise the construction work
from time to time.
6. That the appellant being in regular service at Mumbai could
not visit or supervise or look after the construction activity of
the said work, and had hardly paid any attention to the same
personally.
7. That the prosecution has examined in all eight witnesses, but
no witness on behalf of the accused was examined, and the
appellant is so unfortunate that while recording the statement
of the accused u/s 313 of the Code of Criminal Procedure, despite an enquiry made by the Hon'ble Lower Court as to whether he had to examine any defence witness, the accused being totally ignorant and completely innocent did not avail of the opportunity offered to him, and therefore, no witness
on his behalf or at his instance could be examined.
8. That the appellant respectfully submits that with a view to
meeting the ends of justice, there should have been, at least,
one witness, i.e. the father of the accused-appellant, who
used to attend to and supervise the work of construction
personally, should have been examined on behalf of the
defence, but this did not happen, and for the same, the whole
blame goes to none but the defence only.
9. That even though the said accident took place between 16.30
hours and 20.30 hours on 17.6.2000, the
panchnama
was
drawn two days thereafter on 19.6.2000.
(II) BEING AGGRIEVED BY AND DISSATISFIED WITH the judgment and
order, dated 7.3.2003, passed by the Hon'ble Judicial Magistrate,
Vadgaon Maval, in S.T.C.C. No. 1100/2000, the present appellant prefers this memo of appeal on the following amongst the other
grounds of objections thereto :
1. That the Learned Lower Court has not followed proper procedure,
and this has resulted into miscarriage of justice.
2. That the orders passed by the Learned Lower Court are
violative of the principles of justice, equity and good conscience.
3. That the orders passed by the Learned Lower Court are
contrary to the provisions of law and the principles of natural
justice.
4. That the Learned Lower Court has failed to consider the
evidence on record in a judicious manner.
5. That the findings arrived at by the Learned Lower Court are
not supported by the evidence on record.
6. That the necessary issues of law and the facts have not been
framed and answered by the Learned Lower Court,
7. That the Learned Trial Court ought to have acquitted the
accused-appellant for the benefit of doubt for the great many
controversies committed in the evidence adduced by almost
all the prosecution witnesses.
8. That the Hon'ble Lower Court ought to have taken into
account the very fact that there was a glaring mistake on the
part of the prosecution to the effect that when the said
accident actually took place on 17.6.1998, in the Final Report/
Charge-sheet submitted by the Investigating Officer, Dehu
Road Police Station, on 18.8.2000, the date of offence is
shown to be 10.6.2000, which is totally incorrect.
9. That the Hon'ble Lower Court ought to have rightly held that
it was, merely an accident, and not an offence.
10. That there was a great mistake in lodging the FIR on 8.8.2000,
which should give the benefit of doubt for acquittal of the
accused.
11. That the appellant respectfully submits that while framing
charge, on 7.4.2001, the date of the offence is shown to be
10.6.2000.
12. That the Hon'ble Lower Court ought to have held that the
evidence given by the PW No. 5, Shri MKK, who had undertaken
the work of construction as a contractor, to the effect that the
said water tank was covered by wooden planks and tin sheets,
and as admitted by the PW No. 3, Shri GVJ, that theft is a
common instance in the area, and hence, the same must have
been stolen away by the thieves, leaving the water tank
unprotected.
13. That it was not correct and proper on the part of the Learned
Lower Court to conclude that the said water tank was uncovered,
because the PW No. 3, Shri GVJ, the PW No. 5, the concerned
contractor, as well as the PW No. 8, Shri DDK, supported, said
and reiterated that the three sides of the tank were closed by
a wall and protected by a wire fencing,-there was no access
to the construction site, and the said witness, Shri Kale, also
added that the accused never visited the construction site
during the work, and that the plot is fenced by wire fencing.
14. That the Hon'ble Trial Court ought to have considered the fact
that registering an offence against the accused-appellant was an afterthought, for, as per the version of the PW No. 7, Shri
MHC, ASI, who admitted that prior to the FIR, the incident
was registered as an accidental death.
That the Hon'ble Trial Court ought to have taken into
15.
consideration that when the PW No. 6, Shri GRM, says that
the incident took place on 8.8.2000, it means that such a
mistake on the part of the prosecution could be accepted only with a view to giving the benefit of doubt to the accused, and
not otherwise.
16. That the Hon'ble Trial Court ought to have considered that the
prosecution failed to prove any offence on the part of the
appellant.
17. That the Hon'ble Lower Court ought to have considered that
the appellant was not responsible for the death of the deceased
boy - Abhishek, who was found drowned in the water tank
which was constructed by the contractor engaged by the
appellant for the purpose of construction of a house for him.
18. That the Hon'ble Lower Court ought to have held that the
drowning of the deceased boy was caused only on account of
an accident for which the appellant was not at all responsible.
19.
That the Hon'ble Trial Court was at an error in holding that
the said offence was committed by the appellant by a rash and
negligent act on his part.
20. That the Learned Lower Court was wrong to have come to a
tacit conclusion that it was due to a rash and negligent act on
the part of the appellant that the death of the deceased boy
was caused.
21. That the Hon'ble Trial Court ought to have held that there was
neither
mens rea
on the part of the appellant to cause death
nor any knowledge that the act done in all probability will
cause death.
22. That the Hon'ble Lower Court ought to have considered that
the appellant did no act, which could be termed as a rash or
negligent act and is directly the immediate cause of death of
the deceased boy.
23. That the Hon'ble Trial Court also ought to have held that there
was, in fact, no criminal intent on the part of the appellant, which was an essential ingredient to constitute an offence.
24. That the appellant respectfully submits for the kind and
sympathetic consideration of this Hon'ble Court that there
was no rash or negligent act on the part of the accused-
appellant which could have been the direct or proximate
cause of the death of the deceased boy.
25. That the accused-appellant respectfully submits for the
favourable consideration of this Hon'ble Court that the Learned
Lower Court ought to have determined that the accused
cannot be held to have the knowledge that he was likely by
such act to cause the actual result, but the appellant has been
so unhappy that the dangerous consequences have been
unfortunate.
26.That the Learned Trial Court ought to have held that the act
of the accused-appellant in its nature is not at all criminal,
and hence, only on that merit, the accused-appellant deserves
a clear exoneration.
27. That the Hon'ble Lower Court ought to have rightly held that
the section under which the accused-appellant was tried for
the offence does not apply to the instant case where the death
has arisen, not from the negligent or rash mode of doing the
act, but from some result supervening upon the act which
could not have been anticipated.
28. That this appellant fervently submits that proper care and
due precaution to guard against an injury either to the public
generally or to an individual in particular was taken by the
appellant by putting wooden planks and tin sheets for
covering the water tank, which was then dry and empty.
29. That this appellant submits that the said water tank was
empty and dry, for the construction work was already stopped
for want of funds as well as on account of shortage of water
supply in the month of May 2000, that is the beginning of the
summer season.
30. That the appellant submits and brings to the kind perusal and
consideration of this Hon'ble Court the very fact that when the
rainy season started only in the first week of June 2000, the
said empty and dried tank was filled in with rainy water, and
by the time, all the wooden planks covering the said tank were
also found already removed away and stolen by the unknown
persons, because the same could be very useful as firewood
which is normally used by the population residing in the
nearby vicinity.
31. That the Learned Lower Court ought to have decided that the
accused -appellant had taken a sufficient precaution to prevent
any untoward happening.
32. That the Hon'ble Lower Court ought to have taken into
consideration the very provision of law that there must be
mens rea
in the criminal negligence also, and since the same
is absent in the instant case, it cannot be termed as an
offence.
33. That the appellant respectfully submits for sympathetic
consideration of this Hon'ble Court that the circumstances
under which the deceased boy was drowned were beyond the
control of the appellant, and hence, he is not guilty of such
an offence.
34. That there was a factual mistake to say that the said tank in
which the deceased boy was drowned was uncovered and
unprotected, for it is admitted by the witnesses that the said
tank was under a stare case.
35. That the Learned Lower Court was wrong to hold that the P.W.
No.l, Shri GSD, who is the father of the deceased boy, was
present when the dead body was taken out.
36. That it was a totally wrong decision of the Learned Lower
Court that the said water tank was uncovered and unprotected
and also that even the construction site was accessible and was not fenced.
37. That the Hon'ble Trial Court erred in arriving at a tacit
conclusion that it was an illegal omission on the part of the accused.
38. That even though the said accident took place between 16.30
hours and 20.30 hours on 17.6.2000, the
panchnama
was drawn two days thereafter on 19.6.2000, and hence, the
Hon'ble Trial Court must have considered this issue in favour
of the accused.
39. That the appellant fervently submits that he deserves kind
and sympathetic consideration, and accordingly he prays for
the mercy of this Hon'ble Court, at least, on humanitarian
grounds.
40. That the order is dated, 7.3.2003, while its certified copy was applied for and delivered the same day, and hence, the appeal
filed today is well within limitation.
41. That certified copies of the judgment and order, dated 7.3.2003.
in S.T.C.C. No. 1100/2000, and the other proceedings are
filed herewith.
42. That the necessary court fee is paid herewith.
43.
That the appellant, therefore, prays that -
(i) For the reasons stated above and as may be argued at
the time of hearing, this appeal may kindly be allowed;
(ii) The record and proceedings in S.T.C.C. No. 1100/2000
in the court of the Hon'ble Judicial Magistrate, First
Class, Vadgaon Maval, be called for;
(iii) The order under appeal be set aside and quashed, and
orders deemed just and proper be kindly passed;
(iv)The appellant be kindly acquitted from the offence punishable u/s 304(A) of the Indian Penal Code 1860;