The State Of Mah. Thr. Pso Akola vs Layakali Kadarkhan And Another
2017 Latest Caselaw 7220 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                     NAGPUR BENCH : NAGPUR.

                                          Criminal Appeal No.640 of 2003

                The State of Maharashtra,
                 through Police Station Officer, 
                Police Station Ramdas Peth, Akola.                              ....  Appellant.

                                                            -Versus-
             1]         Layakali Kadarkhan,
                        Aged 40 years, Occ.-Service,
                        R/o.-Ramdas Peth Police Lines, Akola.

             2]         Smt. Pushpabai Dadarao Raibole,
                        Aged 35 years, Occ.-Service,
                        R/o.- Police Station Ramdaspeth, Akola.            ....  Respondents.
             --------------------------------------------------------------------------------------------------
             Mr. S.B. Bissa, Additional Public Prosecutor for appellant/State.
             Mr. S.G. Joshi, Counsel for respondents.
             --------------------------------------------------------------------------------------------------
                                                              Coram : Mrs. Swapna Joshi, J.

th Dated : 15 September, 2017.

ORAL JUDGMENT

This appeal has been preferred by the appellant/State

against the judgment and order passed by the learned Judicial Magistrate

First Class, Court No.6, Akola in Regular Criminal Case No.454 of 1999

delivered on 02-08-2003, whereby the learned trial Judge had acquitted

the respondents (hereinafter will be referred as 'the accused') for the

offences punishable under Section 304-A of the Indian Penal Code and

Section 42 of the Indian Electricity Act.

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             2]                I   have   heard   Mr.   S.G.   Joshi,   the   learned   counsel   for   the 

respondents/accused and Mr. S.B. Bissa, the learned Additional Public

Prosecutor for the appellant/State. With their assistance, I have carefully

gone through the record of the prosecution case.

3] The facts leading to prefer this appeal can be summarised as

under :-

On 16-06-1998, Ramdaspeth Police Station, Akola, received

an information from Main Hospital, Akola in respect of death of Ajinkya

Ramesh Wankhade aged about 6 years, resident of Ramdaspeth Police

Quarters, Akola. The accidental death was registered on receipt of the

said information by the Police. On the dead body of the deceased,

autopsy was conducted. Police received the post mortem report

(Exhibit-38). On 27-07-1998, Police registered an offence under Section

304-A of the IPC against Layakali (accused no.1). The viscera of the

deceased sent to the Chemical Analyser's office for examination. The

Police recorded the spot panchanama (Exhibit-79) and inquest

panchanama (Exhibit-78). The Police recorded the statements of the

witnesses after about more than 1 month of the incident. An expert from

the M.S.E.B. office visited the place of incident and submitted his report.

After completion of the investigation, chargesheet was submitted in the

Court of learned JMFC. The learned trial Judge framed the charge and

on conducting the trial, on appreciation of the evidence and on hearing

both the sides, the learned trial Judge was acquitted both the accused as

aforesaid. Hence, this appeal.

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             4]                I have heard both the sides.   I have carefully perused the 

record. It is noticed that the prosecution has examined in all 17 witnesses.

However, the prosecution heavily placed reliance upon the evidence of

witnesses; PW-1-Manohar, PW-5-Ratna, PW-7-Prakash, PW-8-Shubhangi

and PW-14-API-Pramod Kale. The testimony of PW-5-Ratna, who is the

mother of deceased shows that, her son Ajinkya (deceased) was aged

about 7 to 8 years old at the time incident. He went to play with his

bicycle with his sisters Shubhangi and Supriya in front of the house of

accused no.1. At that time, the bicycle of Ajinkya mingled with earthing

wire lying in front of the house of accused no.1 and he fell down. The

bicycle was lying on his person. Sister of Ajinkya namely Shubhangi tried

to remove the bicycle. She sustained electric shock and she shouted

loudly. PW-5 was in the bathroom at the relevant time. She rushed to the

spot and she noticed that upper end of the earthing wire was fixed at the

house of accused no.1 and Ajinkya had sustained the shock due to the

said wire. The another end of that earthing wire was inside the earth.

During cross examination PW-5 categorically stated that, her statement

was recorded on 19-06-1998 in which she had stated about the accidental

death of her son. She further admitted that the Public Works Department

used to maintain the Police quarters and stated that in the said lane there

is an electric pole which is situated in the backside of the Police quarters.

She admitted that she had not seen personally as to how Ajinkya

sustained the shock. Thus, the testimony of PW-1 does not throw much

light on the point of incident as she was not present at the place of

4 Judg 150917 apeal 640.03.odt

incident.

5] The testimony of PW-6-Ramesh, who is the father of

deceased reveals that, the said witness had not witnessed the incident

and he admitted that he had not lodged any complaint in the Police Station

on 16-06-1999.

6] PW-7-Prakash, who was the neighbour of the complainant

and accused no.1 stated that, at the time of incident he was present in the

compound of his house. One electric earthing wire was connected to the

wall of the Police quarters between the gap of two quarters. Child Daddu

touched the said wire and fell down on the spot. The wife of Police

Constable Anant Patil took that child from the grandmother of the child.

According to him, he was inside his quarter and he had not seen as to

what happened later on. After taking the bath he noticed that, earthing

wire was connected with the thorny fencing. He further stated that the

Police recorded his statement one month after the incident and prior to

recording his statement he was pressurised by the Police Officers. His

entire testimony is doubtful, in the light of the fact that his statement was

recorded by Police about one month after the incident, PW-7, submitted

that he had filed report in the Ramdaspeth Police Station with regard to

the alleged incident, however, he had orally reported the matter to the

Police. He specifically stated that his oral report is not recorded by the

in-charge of the Police Station. He categorically stated that for the first

time he had disclosed the incident to ASI Subhankhan. PW-7 further

stated that ASI-Subhankhan has not recorded his statement. According to

5 Judg 150917 apeal 640.03.odt

him, he informed the said incident to PI-Rudhe. He had also not recorded

his statement. The testimony of PW-7 shows that he had visited Police

station many a times prior to recording his statement by Police. The said

version of PW-7 goes to the root of the prosecution case and makes the

entire testimony of this witness doubtful.

7] PW-7 had made an improvement in his statement that there

was thorny fencing covered surrounding to the said earthing wire. It

appears that the thorny fencing was covered and surrounded to the

earthing wire as a sort of protection so that nobody can touch it. In view

of the fact that his statement was recorded by Police at belated stage

although he was from Police department, his testimony does not inspire

confidence as such.

8] The testimony of PW-8-Shubhangi, who is the sister of

deceased reveals that, one earthing wire was under the ground and the

other earthing wire was above the ground. Ajinkya touched the wire and

he fell down and the tricycle was overturned upon his body. As soon as

she touched Ajinkya and his tricycle, she sustained electric shock. She

further stated that the wire was coming out from the house of accused

no.1 who resides in front of her house. PW-8 fairly admitted that her

statement was recorded by the Police after two and a half months of the

incident. It is not clear as to why her statement was not recorded by the

Police earlier. It has come on record that the First Information Report

was registered one month after the incident.

             9]                As far as the medical evidence is concerned, according to 





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PW-9- Dr. Avinash Thote, on 16-06-1998, he conducted the post mortem

of Ajinkya and issued the post mortem report. However, he failed to state

in the post mortem report that as to what was the cause of death.

According to him, there was palm injury. He clarified that in case of

electric shock to the body it causes entrance wound and also exist wound

and there was no such exist wound seen over the dead body. PW-9

admitted that there are also reasons for resulting cardio respiratory arrest

and electric shock can also result into hemorrhages. In view of the said

evidence of the Medical Officer it cannot be unequivocally stated that the

cause of death of the victim was due to electrocution.

10] The testimony of all the witnesses indicates that they had

seen one earthing wire coming out of the house of accused no.1 and one

end of that wire touched above the earth and one wire was inside the

earth. Significantly, as per the provisions of the Indian Electricity Act,

1956, definition of 'earthed' or 'connected with earth' means connected

with the general mass of earth in such manner as to ensure at all times an

immediate discharge of energy without danger. Thus, the earthing wire is

prima facie a safety wire.

11] As discussed above, on 16-06-1998 an accidental death in

respect of Ajinkya was reported to the Police and the post mortem report

(Exhibit-38) does not disclose the cause of death. The C.A. report also

does not assist the prosecution case. The CA report simply depicts that

no poison was found in the viscera. The medical certificate (Exhibit-39)

was issued by the Medical Officer without any fresh data available in

7 Judg 150917 apeal 640.03.odt

respect of Ajinkya with him. It would be noted here that in case of death

by electric current, viscera should be analysed to know whether the

victim was impaired at the time of incident. In this case, the prosecution

failed to seize clothes worn by Ajinkya at the time of death. Normally, in

case of electric current, the clothes are usually burnt or torn at the point

of entrance and exist. It is already discussed above that, the Medical

Officer has not found entrance wound or exist wound over the body of

Ajinkya, even assuming that the electric current was due to the earthing

wire also, it was the duty of the MSEB Office to take care of the said wire.

The Medical Officer has not specifically recorded his opinion about the

cause of death and he has not stated how the injuries were caused to the

deceased. Even the injuries were not detected at the time of preparation

of post mortem report. In view of above, it is difficult to come to the

conclusion that the cause of death was due to electric shock. In this case

the link is missing that the prosecution has not examined the technical

person or an expert from MSEB office and the case of the prosecution is

not that the said wire was bare wire or live wire. The case of the

prosecution is of earthing wire and for that the prosecution is required to

prove how earthing wire turned dangerous. In view thereof, it is difficult to

come to the conclusion that, due to the electric wire Ajinkya received

shock, caused injury and due to which he died.

12] I have carefully gone through the evidence of PW-14-Pramod

Kale who is the Investigating Officer. According to him, during the course

of investigation he found that the accused nos. 1 and 2 have

8 Judg 150917 apeal 640.03.odt

unauthorizedly taken the electric connection in their residence. The

testimony of Investigating Officer does not throw any light on the aspect of

electric wire coming out from the house of accused no.1 to the place of

incident.

13] I do not find any illegality or perversity in the judgment

passed by the learned learned Sessions Judge. It is well settled principle

of law that in exercise of its appellate jurisdiction particularly in appeal

against acquittal, it is not open to this Court to substitute its own view with

a view taken by the lower Court, unless the view taken by the lower Court

is illegal, perverse or against the principle of law.

14] There are no sufficient grounds made out by the

appellant/State to interfere with the impugned judgment and order. In

these circumstances, the appeal deserves to be dismissed and

accordingly it is dismissed.

JUDGE

Deshmukh