(By Mr. Nand Lal Thakur vs Resident Of Village Samana
2021 Latest Caselaw 3913 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT
                     SHIMLA




                                                 .
         ON THE 13th DAY OF AUGUST, 2021





                    BEFORE





      HON'BLE MR. JUSTICE ANOOP CHITKARA
         CRIMINAL APPEAL No. 233 of 2010
Between:-

                 r      to
STATE OF HIMACHAL PRADESH


(BY MR. NAND LAL THAKUR, ADDITIONAL
                                         ....APPELLANT

ADVOCATE GENERAL WITH MR. RAM LAL
THAKUR & MR. SUNNY DHATWALIA, ASSISTANT
ADVOCATES GENERALS)



                 AND
(1)   JAI RAM, SON OF SHRI NARAYAN SINGH




      RESIDENT OF VILLAGE SAMANA
      TEHSIL AND POLICE STATION SUJANPUR





      DISTRICT HAMIRPUR, H.P

(II) VINAY KUMAR, SON OF SHRI JAI RAM





     RESIDENT OF VILLAGE SAMANA
     TEHSIL AND POLICE STATION SUJANPUR
     DISTRICT HAMIRPUR, H.P
                                 ..RESPONDENTS.

(BY MR. DIVYA RAJ SINGH, ADVOCATE FOR
RESPONDENT NO.1
MS. KIRAN KANWAR, ADVOCATE, LEGAL AID
COUNSEL, FOR RESPONDENT NO.2.)




                                ::: Downloaded on - 31/01/2022 22:52:29 :::CIS
                                  2

     This appeal coming on for orders this day, the Court passed
the following:
                          JUDGMENT

.

FIR NUMBER 62/2006 dated 16.5.2006, Police Station Lambagaon, District Kangra under

Section 285, 336, 337, 338, 304A, IPC and Sections 3-4 of Explosive Substance Act, 1908

TRIAL COURT 24-K/VII/2007, decided on 13.10.2009, CASE NO. by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala.

         CHARGES & TRIAL COURT'S VERDICT

    Accused      Sections 3-4 of the Explosive Acquitted


    Jai Ram      Substance Act, 1908
                         &
                 Sections 304A, 336, 337, 338, IPC




    Accused      Sections 3-4 of the Explosive Acquitted
    Vinay        Substance Act, 1908





    Kumar                &
                 Sections 304A, 336, 337, 338, IPC





                 read with Section 109, IPC

Challenging the acquittal of the accused for offences of causing death due to rash and negligent act by handing over gelatin for blasting, the State has come up before this Court.

2. On 16.5.2006 at 11.45 a.m., the Police Post Thural, District Kangra received a telephonic information from an unknown person. The informant said that in village Jas falling

.

in Gram Panchayat Balakrupi, one labour has died due to blast and another has injured. The said information was reduced into

writing in Daily Diary Register, extracts of which are Ex.PW- 17/A. Subsequently, the police team led towards the spot. On reaching the spot, the police officials noticed a dead body lying

there and palette signs of a blast at the digging site.

3. At the spot, the investigator recorded statement of

Joginder Singh, PW/2 under Section 154 (PW17/B). The

informant told the police officials that on 16.5.2006, he alongwith the contractor Jai Ram (A/1) had reached the spot at

11.30 a.m.. The contractor was doing a contractual job of digging a water tank on the banks of Neugal Creek (Khad). In

the said work, apart from Joginder Singh PW/2, Pawan Kumar

(PW/3), Ramesh Chand (PW/4) and Bishamber were also working. After some time of his reaching at the site of work,

contractor Jai Ram (A/1) reached there. He told the workers to use gelatin with a view to weaken the rocks and expedite the digging work. Subsequently, Bishamber and Ramesh Chand (PW/4) started deploying gelatin in the rock. The informant Joginder Singh alongwith contractor Jai Ram (A/1) and Pawan

Kumar (PW/3) took shelter at a distant place. In the meantime, a blast took place and they were afraid because Ramesh Chand and Bishamber had not taken any shelter. After that, they rushed

.

to the spot and noticed that face and skull of Bishamber had blasted and he had died. Ramesh Chand (PW/4) was lying there

in an injured condition. After that, all three of them took the injured to Sujanpur Hospital. Informant Joginder Singh (PW/2) also stated that this incident had taken place due to rash and

negligent act of contractor Jai Ram (A-1). Based on this information, the police registered the FIR (EX.PW17/D) mentioned above.

4. During investigation, the investigator obtained post- mortem report of Bishamber (EX.PW5/A) and MLC of Ramesh

Chand (EX.PW1/B).

5. After collecting the residues of the blast site, the

same were sent for testing to Central Forensic Science

Laboratory at Chandigarh. Vide report EX.PA, the Laboratory noticed ions of potassium, nitrate, carbon, sulphate and

ammonium from the residues. The doctors, who had conducted post-mortem and examined the injured, has also opined the cause of death and injuries as gelatin, which was corroborated by the Laboratory. The Investigator obtained sanction for prosecution under Section 7 of Explosive Substance Act, 1908

from District Magistrate Kangra vide sanction letter EX.PW13/B. After completion of the investigation, the Officer Incharge of the Police Station, Lambagaon launched prosecution

.

against accused Jai Ram (A-1) and also Vinay Kumar (A-2) in whose names Irrigation and Public Health Department had

awarded the tender for digging of tank.

6. Vide order dated 1st May 2009, learned Additional Sessions Judge framed charges against accused Jai Ram for

commission of offences punishable under Sections 3 and 4 of the Explosive Substance Act, 1908; 304-A and 336,337 and 338

of IPC. Similarly, same charges were framed against accused

Vinay Kumar but those were read with Section 109 of IPC. The accused did not plead guilty and claimed trial.

7. During the trial, the prosecution examined all the spot witnesses and also the SDO of Irrigation and Public Health

Department. In the statement under Section 313 Cr.P.C, Jai Ram

(A-1) denied all the circumstances against him. Vinay Kumar (A-2) also denied the evidence, however, offered explanation

that he had given a sub contract of the aforesaid work to Ramesh and Bishamber. However, the accused did not lead any evidence in defence.

8. Vide above captioned judgment, learned Sessions Court dismissed the prosecution and acquitted both the accused

from all charges. Challenging the said acquittal, the State has come up by way of an instant appeal.

.

ANALYSIS AND REASONINGS.

9. The prosecution has been able to prove that the cause

of death of Bishamber was due to gelatin blast as Dr.Vinay Mahajan (PW-5), who had conducted post-mortem proved this aspect. Similarly, Ramesh Chand (PW-4) had sustained injuries

due to gelatin blast and this aspect was also proved by Dr. Chaman Lal (PW-1). Furthermore, the evidence collected at the

spot was sent to the Laboratory and the CFSL, Chandigarh vide

report Ex.PA found ammonium, potassium and nitrate ions in the residues collected from the site, which established blast of

gelatin. It is also proved through the evidence of injured Ramesh Chand (PW-4) and other labours Joginder Singh (PW2) and

Pawan Kumar (PW-3) that gelatin was fixed by Bishamber and Ramesh Chand and it did not go as planned and subsequently

blasted killing Bishamber at the spot and injuring Ramesh

Chand (PW-4). The question before this Court is the role and involvement of accused in procurement and installation of the said gelatin and the consequent blast.

10. The Irrigation and Public Health Department had awarded the contract to dig a water tank at the banks of Neugal Creek (Khad). Shri Jaimal Singh Bhatia (PW-11), who was

posted as SDO in the IPH Department testified that he was monitoring the aforesaid construction work. He proved the tendered document (EXPW11/A), per which the work was

.

awarded to Vinay Kumar (A-2). He further testified that the Department had neither handed over any explosive material to

the contractor nor had authorized the contractor to use explosive in the work.

11. Shri Jaimal Singh, SDO (PW-11), in his cross

examination stated that he was regularly visiting the site to supervise the work but Vinay Kumar (A-2) never met him at the

spot. He further stated that work was going on as per the

specifications. He further explained that at the spot whenever he would ask from the persons, who met him on the spot, about the

contractor, then those persons told him that they had taken the work from contractor on sub contract and such persons revealed

their names as Bishamber and Ramesh.

12. There is specific admission by the Sub Divisional Officer who was supervising the work that Ramesh and

Bishamber were working as sub contractors of contractor Vinay Kumar (A-2). In the statement under Section 313 Cr.P.C explanation offered by Vinay Kumar (A-2) is also similar that he had handed over the work on a sub contract to Ramesh and Bishamber.

13. PW-2 Joginder Singh did not support the case of the prosecution and was declared hostile. Even in the leading questions put by the prosecutor, he did not support the case of

.

the prosecution. In his cross examination, he testified that on the date of blast, he had reached at the spot at 11.30 a.m. and

contractor Jai Ram (A-1) had reached after an hour afterthat and by that time, blast had already taken place.

14. Another spot witness Pawan Kumar (PW-3) also did

not support the case of the prosecution and was declared hostile. In his cross examination, he stated that the blast had not taken

place in his presence.

15. Injured Ramesh Chand (PW-4) supported the case of the prosecution. He also admitted that Bishamber had already

made a hole in the stone on the previous date. Thus, the steps to use gelatin were already taken by Bishamber and Ramesh on

15.5.2006, i.e, a day prior to the blast.

16. Given above, the plea of injured Ramesh Chand (PW-

4) that they had resorted to the blasting at the instance of Jai

Ram (A-1) is incorrect, even on its face value and analysis of the entire evidence reveal that Bishamber (deceased) and Ramesh Chand, PW-4 (injured) had already taken steps to use blasting material on 15.5.2006, i.e, a day prior to the blast. Statement of spot witness, Joginder Singh (PW-2) also reveals that Jai Ram

(A-1) had reached at the spot after the blast. Coupled with this, the statement of PW-11, Jaimal Singh Bhatia, SDO of IPH further clarifies that the original contractor Vinay Kumar had

.

given this work to Bishamber and Ramesh. Furthermore, the investigator did not conduct any investigation that who procured

the gelatin and from whom. This is a material defect in the investigation, which also weakens the case of the prosecution. Thus, the prosecution has failed to prove beyond reasonable

17.

r to doubt the role and involvement of accused in the usage of blasting material, which led to the injuries and death.

I have gone through the impugned judgment of

acquittal, which is well reasoned and does not call for any interference.

18. Given above, there is no merit in this appeal, which is dismissed. Bail bonds, if any, furnished by the accused are

cancelled and discharged. Pending application(s), if any, shall

also stand disposed of.

                                              (Anoop Chitkara)
August 13, 2021(mamta)                              Judge