BHAKTA BANDRE SAHU Vs. THE STATE

JUDGEMENT

(1.) THIS application in revision is directed against an appellate order of the Additional Sessions Judge, Cuttack, upholding the conviction of the Petitioner under Section 304 -A, Indian Penal Code and the sentence of fine of Rs. 1000/ - imposed on him. The Petitioner was a contractor under the P.W. D. for doing repair work to a part of the road from Pallahara to to Deogarh. For this purpose the P.W. D. placed at his disposal a hand roller weighing about 2 tons for use on the road. It is said that he had been given the oral instructions to take necessary precautions at the time of drawing the hand roller on the road. On 15 -11 -64 the Petitioner engaged 10 persons to take the road roller to a certain point on the road where its use was considered to be necessary. While the roller was being taken down a slope on the road it ran over one of the labourers and he died. On these allegations a case under Section 304 -A, Indian Penal Code was started against the other labourers, and the Petitioner was cited as a witness in this case. At a subsequent stage of the trial the Petitioner was arrayed as one of the accused and the case proceeded against the Petitioner and the other labourers. All of them were convicted in the trial Court under Section 304 -A, Indian Penal Code and each of the labourers was sentenced to pay a fine of Rs. 50/ - and in default to undergo R.I. for 15 days each. The learned Magistrate convicted the Petitioner under Section 304 -A, Indian Penal Code and sentenced him to pay a fine of Rs. 1000/ - and in default to undergo R.I. for 6 months. The Magistrate further ordered that after the fine is realised, compensation of Rs. 1000/ - should be paid to the dependant of the deceased. The Petitioner alone appealed, but it was dismissed by the learned Additional Sessions Judge.

(2.) THERE is no eye -witness to the occurrence and as such there is no reliable "evidence to show how exactly this unfortunate incident took place. In the circumstances the lower Courts in convicting the Petitioner relied entirely on circumstantial evidence and particularly on the oral testimony given by P. Ws. 6 and 7. P.W. 6 is the S.I. of Excise, Pallahara. At about 2 P.M. on the date of occurrence he saw the roller being dragged by the labourers on the road near a place called Batisuan. According to him, the roller was being drawn with some speed and he advised them to drag it carefully. At that time the roller was being dragged down a slope on the road and according to the witness, 2 or 3 persons were on the front side of the roller while rest were behind. This was 4 to 5 hours before the occurrence. He was however unable to say whether the deceased was one of the three persons who were proceeding in front of the roller. In cross -examination it was put to him that while he was examined by the police he did not make any statement that the roller was moving with some speed and that some labourers were proceeding in front of the roller. He denied the suggestion. But the prosecution has not examined the Investigating Officer in this case with the result it was not possible for the accused to bring on record the contradiction between the statements made by P.W. 6 in the court and before the police. In the circumstances no reliance can be placed on the above statement made by P.W. 6. PW. 7 is the Section Officer, P.W. D. and he stated that the roller was supplied to the Petitioner and he had been instructed to employ 10 persons for dragging the roller and to take the roller carefully down any slope. There is evidence to show in this case that 10 persons were actually employed by the Petitioner to take the roller. It appears from the evidence of P.W. 8 who was present when the Petitioner engaged the labourers that the latter stated that as they were accustomed to drag the roller they would do so carefully.

(3.) FOR the reasons and circumstances stated above, the conviction of the Petitioner cannot be sustained. Accordingly 1 allow this application, set aside the conviction of the Petitioner and the sentence imposed on him and direct that the fine, if paid, should be refunded.