Rajendra Uttamrao Jagdale vs The State Of Mah. Thr. Pso Wardha
2017 Latest Caselaw 3799 Bom

                                                                                                 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
...........................................................................................................................
           None for the  appellant 
           Mr. V.P. Maldhure, Additional Public Prosecutor for respondent-State
............................................................................................................................

                                                     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 :

CRI.APPEAL.2.04

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

CRI.APPEAL.2.04

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

CRI.APPEAL.2.04

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

CRI.APPEAL.2.04

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

CRI.APPEAL.2.04

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

CRI.APPEAL.2.04

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

CRI.APPEAL.2.04

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