CRI.APPEAL.2.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 2/2004
Rajendra s/o Uttamrao Jagdale
Aged about 38 years, occu: Cultivator
Resident of Tona, Tah. Arvi
Dist. Wardha. .. APPELLANT
v e r s u s
The State of Maharashtra
Through the Police Station Officer
Arvi, Tah:Arvi, Dist.Wardha. .. RESPONDENT
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None for the appellant
Mr. V.P. Maldhure, Additional Public Prosecutor for respondent-State
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CORAM: MRS. SWAPNA JOSHI, J.
DATE OF RESERVING : 19.06.2017
DATE OF PRONOUNCEMENT: 30.06.2017
JUDGMENT:
This Appeal has been preferred by the appellant/accused against the judgment and order dated 24th December, 2003 in Sessions Trial No. 8/2002 by the learned Ad-hoc Additional Sessions Judge,Wardha, thereby convicting the appellant for the offences punishable under Section 304 Part-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-, in default, to suffer R.I. for a period of one moth.
2. The prosecution case can be summarized in nutshell, as under : ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 :::
CRI.APPEAL.2.04 2 On 16.08.2001, complainant-Vasant Rangrao Alaspure, received an information that dead bodies are lying in the field of appellant-Rajendra. Accordingly, he rushed to the said field along with few persons. Those dead bodies were lying in the field of the appellant on the electric wire. The field of the appellant was surrounded by iron wire compound. The complainant, accordingly, recorded the report (Exh.21), on the basis of which Accidental Death No.71/2001 was registered. PSI - Vasant Shende (PW 7) recorded the spot panchnama (Exh.16) and Inquest Panchnamas (Exh.18 &19 respectively) in the presence of Panchas. PSI Shende took charge of twenty wooden stumps and 1500 grams of iron wire from the said spot vide seizure memo Exh.17. The dead bodies were sent for post-mortem for examination. The Medical Officer opined the cause of death of both the deceased as 'cardio respiratory arrest due to electric shock'. PSI Shende made enquiries with MSEB and he received the reply accordingly. On the basis of the report of MSEB and the post-mortem reports of the deceased, PSI Shende (PW 7) lodged his complaint (Exh.42) against the appellant. On the basis of the said report, he registered the offence vide Cr. No. 188/2001 u/s. 304 of the I.P.C. PSI Shende conducted the investigation. The iron wire and rope were taken charge of from the cattle-shed of the appellant, at his instance, vide seizure memo Exh. 65. After completion of investigation charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, Arvi. Charge was framed by the learned Sessions Judge u/s. 304 of the I.P.C. The learned trial Judge after ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 ::: CRI.APPEAL.2.04 3 recording the evidence and hearing both the sides, convicted the appellant, as aforesaid.
3. The appellant and his counsels were absent. Heard learned A.P.P. for the respondent-State. I have carefully gone through the entire record of the case and the impugned judgment and order with the assistance of learned A.P.P. The learned A.P.P. contended that the trial Judge has rightly passed the order and no illegality or perversity has been noticed in the order passed by the learned trial Judge.
4. In order to bring home the guilt of the appellant/accused, the prosecution has examined in all nine witnesses. PW 1-Gunvanta Bansod is the panch witness, on the point of spot panchnama, seizure memo (Exh. 17) and inquest panchnama; PW 2-Vasanta Alaspure is the complainant, PW 3- Harish Barara is the panch witness on the point of seizure of rope and wire, at the instance of the appellant; however he was a hostile witness; PW 4-Arun Pohnekar is the revenue Inspector, PW 5-Anil Uikey, who found the wire- fencing around the field of the appellant and also a neutral wire lying in the compound; PW 6-Manohar Alaspure who found two dead bodies lying on the spot in the field of the appellant; PW 7-Vasant Shende is the Investigating Officer; PW 8-Subharao Jadhav is the Assistant Electrical Inspector, whereas PW 9-Ravindra Khodke is the Deputy Executive Engineer of MSEB.
5. It is not disputed that the death of Asifkhan and Mukhtar Ahmed was caused due to cardio-respiratory arrest,consequent upon severe electric shock ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 ::: CRI.APPEAL.2.04 4 as depicted in the post-mortem report. It indicates that the death of both the deceased was caused due to electrocution. The spot panchnama (Exh. 16) indicates that it was a field of the appellant where moong crops were standing. There was a compound of wire around the field. There were two pieces of wires lying in the field of the appellant - one of 200 ft. and other of 400 ft. and its ends were in rubbed condition and black in colour. At a distance of about 180 ft. from those broken wires, the dead bodies were lying. The distance of both the dead bodies was five-and-a half feet. One LT line of MSEB was passing through the field of the appellant. One electric pole was also there on the spot. Considering the post-mortem report and the spot panchnama, it appears that the death of Asifkhan and Mukhtar was caused due to electrocution. It is also not disputed that the field was belonging to the appellant where the said incident of electrocution had taken place. It is thus clear that the death of Asifkhan and Mukhtar had taken place due to electrocution.
6. The question therefore arises as to whether it was an accidental death or homicidal death.
7. I have gone through the entire evidence on record. Admittedly there is no eye witnesses to the incident of electrocution which caused death of Asifkhan and Mukhtar. It is, therefore, not clear as to whether it is an accidental death or homicidal death. There is absolutely no iota of evidence on record, except the fact that it was the field of the appellant where the ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 ::: CRI.APPEAL.2.04 5 incident had taken place, to connect the appellant with the death of Asifkhan and Mukhtar. Admittedly, there was no animosity between the appellant and the deceased. There is absolutely no evidence on record in that regard. It is,therefore, to be carefully examined, whether it was the appellant who caused the homicidal death of deceased. In this regard, it would be advantageous to go through the testimony of PW 8-Subharao Jadhav. According to PW 8, he was working as an Assistant Electrical Inspector and had answered the queries made by the Investigating Officer of Arvi Police Station. Significantly, PW 8 was asked whether after breaking of neutral wire from LT line and falling on an iron fencing, electric supply could be passed through it. An interesting answer was given that the LT line at the place of incident was in vertical formation and hence neutral wire is earthed, as such, fencing wire cannot get electrified by falling of neutral wire. The said answer indicates that the wire which was found near the fencing was connected to the overhead wire, was a neutral wire having no current. It therefore clarifies that from the said neutral wire no current could be passed from the overhead wire to the wire fencing of the field of the appellant. It was further asked to PW 8 that an incident occurred on 16.08.2001 and information was received on 17.08.2001, the enquiry about the said accident was made on 17.08.2001 and, on that day, no unauthorised electric installation was found at the spot. No evidence was found that on 16.08.2001 at the time of accident, unauthorised electric supply was taken. PW 8 could not answer the said query as the query ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 ::: CRI.APPEAL.2.04 6 was itself an answer. The said query itself indicates that at the time of incident no unuathorised electric supply was noticed at the place of the incident. It was further asked as to from where the owner of the field had taken an electric supply and transmitted through the wire of fencing. PW 8 answered that, it was found that no unauthorised electric supply was taken and it could not be stated as to from where and how it was taken. It is opined that by putting a hook on the wire of MSEB, an electric supply could be passed through the wire of fencing. It is worthy to note that nowhere hook was found with the wire of the MSEB, so that the electric supply can be taken from the overhead wire and passed to the fencing wire. In fact, there was no evidence on record to show that there was any connection between the overhead wire and the fencing. As stated above, there is evidence on record to show that the connecting wire which started from overhead wire and which was found lying in the field was a neutral wire. Admittedly, there cannot be any electric supply from the neutral wire to the wire of fencing of the field of the appellant.
8. It is surprising to note that the learned Judge relied upon the evidence of PW 5 who stated that electrical energy might have illegally used by the person who was possessing the field, by putting iron hook on the LT line although there is no evidence on record to show that there was any iron hook found to the LT line. Thus, the testimony of PW 8 does not throw any light on the aspect of electric connection between the overhead wire and the wire ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 ::: CRI.APPEAL.2.04 7 fencing of the field of the appellant. In the absence of any concrete evidence that there was a live wire which was connecting the overhead wire and the wire fencing of the appellant, one cannot assume or presume that there was any electric connection between the overhead wire and the wire fencing of the appellant and the deceased received current at that particular place. No doubt, the deceased died due to the electrocution. However, the prosecution has miserably failed to show that the said electric shock was received by the deceased from the wire fencing of the field of the appellant and the electric current was passing in the wire fencing, due to the connectivity between the wire fencing and the overhead wire which was passing through the field of the appellant. If the said factor goes then there is no question of the appellant keeping the overhead wire and the wire fencing of his compound with live wire by connecting the wire fencing with a hook.
9. Interestingly, the letter (Exh.34) produced by PW 5-Anil Uikey, who was working as a Sub-Engineer at Arvi, which was received by him from the Deputy Executive Engineer, stipulates that the broken wire of MSEB which was lying suspended on the wire fencing of the field of the appellant, was a neutral wire and the said wire was connected to the earthing. There was no electric supply in the said wire. It was mentioned in the said letter that the wire fencing to the said field was done for prohibiting the animals from entering into it and, therefore, there is possibility that said fencing might be electrified by passing an electric current through it, by illegal means. On going ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 ::: CRI.APPEAL.2.04 8 through Exh. 34, it appears that the learned trial Judge has presumed that the appellant had electrified the said wire fencing of his field by passing an electric current through it by illegal means, so that it may cause death of deceased-Asifkhan and Mukhtar.
10. On careful scrutiny of the entire evidence on record and the judgment and order passed by the learned trial Judge, it cannot be remotely said that the appellant had caused the death of Asifkhan and Mukhtar and he had knowledge that due to the act of electrification, it would cause death of Asifkhan and Mukhtar by encircling his field by live electrical wires. The judgment and order passed by the learned trial Judge certainly needs interference at the hands of this Court, in as much as there is an apparent illegality and perversity on the face of the record.
11. For the reasons aforesaid, the judgment and order of the learned trial Judge needs to be set aside and the Appeal deserves to be allowed. Hence the following order :-
ORDER
(i) Criminal Appeal No. 2/2004 is allowed.
(ii) The impugned judgment and order is quashed and set aside.
(iii) The bail bonds of the appellant shall stand cancelled.
JUDGE sahare ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:34:21 :::