The State Of Madhya Pradesh vs Harivallabh
2021 Latest Caselaw 302 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                         M. Cr. C. No.38038/2020
                  (State of M. P. Vs. Harivallabh and Another)
                                     -1-

Indore, dated 27/02/2021

         Shri Sameer Verma, learned Panel Lawyer for the applicant /

State.

         The present M.Cr.C. is filed under Section 378(3) of Cr.P.C.

seeking leave to file appeal against judgment of acquittal dated

15/10/2019 passed by Judicial Magistrate, First Class, Shajapur, Distt.

Shajapur in Criminal Trial No.901184/2013, whereby the respondents

accused persons have been acquitted in the offence registered

Section 285, 304(A) and 3337 of the IPC.

02- The respondent No.2 Manohar Pandey is the owner of the

Petrol Pump Shrinath Front Carrier, A. B. Road, Maksi. On 15/01/2013

a tanker bearing registration number MP-14-GB-1108 loaded with

petrol came to the Petrol Pump. Tanker was driven by respondent

No.1 Harivallabh and Peerulal was there as a Cleaner. The driver of

the tanker has directed Peerulal to immediately open the valve for

unloading because he has to go for second trip. Peerulal went inside

the Fuel Station and came up with a bucket for taking petrol for testing

purpose. The moment he opened the valve, the tanker got fire.

03- Harivallabh immediately ran away from the Petrol Pump and the

entire tanker got burnt and due to which Peerulal sustained burn

injuries. Immediately Police Fire Brigade were called. Because of the

said incident Peerulal and other employee of the Petrol Pump

Devnarayan suffered burn injuries. They were taken to hospital where HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. Cr. C. No.38038/2020 (State of M. P. Vs. Harivallabh and Another)

the Peerulal succumb to the burn injuries. Accordingly the police has

registered a case under Section 285 and 337 of the IPC against the

respondents and after death of Peerulal offence under Section 304(A)

has been added and filed a Challan before the competent Court. The

respondents pleaded absurd the guilt and pleaded for trial. They were

tried under Section 285, 304(A) and 337 of the IPC.

04- In support of the charges prosecution has examined as many as

18 witnesses and got exhibited the documents filed along with the

charge sheet. In defense the respondents did not examined any

witnesses and pleaded that they have been falsely implicated in the

crime.

05- After appreciating the evidence came on record the learned

JMFC has held that the prosecution has failed to prove the charges

against the respondents and vide judgment dated 15/10/2019 has

acquitted the same. Hence, present M.Cr.C. before this Court.

06- I have heard Shri Sameer Verma, learned Panel Lawyer for the

respondent / State and perused the record of the trial Court. The

accident dated 15/01/2013 at 12:00 noon is not in dispute. All the

witnesses have supported the case of the prosecution that tanker

came near about between 12:00 noon to 01:00 PM in Shrinath Front

Carrier, Maksi for unloading the Petrol and at the time of opening of

the valve petrol got fired and cleaner and other employees sustained

burn injuries. The driver of the tanker Harivallabh ran away from the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. Cr. C. No.38038/2020 (State of M. P. Vs. Harivallabh and Another)

spot.

07- The issue is whether the respondents are liable to be

prosecuted for the offence under Section 285, 304(A) and 337 of the

IPC. The case of the prosecution is that after tanker reaches to the

Filling Station for unloading, the driver and cleaner had to wait for at

least 20 minutes to unsettle the gases formed during transportation

and thereafter, the valve was liable to be opened and the sample was

to be taken in a glass and not in a bucket. Since, the driver has

instructed the cleaner to immediately open the valve and the owner of

the Petrol Pump has provided the bucket for taking sample, therefore,

they are responsible for the accident and liable to be punished.

08- So far as the aforesaid case of the prosecution that driver and

cleaner had to wait for 20 minutes before opening the valve of the

tanker and the sample is liable to be taken in a glass is concerned, no

guidelines issued by the Oil Company or the Petroleum Department,

Government of India has been produced before the Court. No expert

from Oil Company has been examined in the trial to establish the

aforesaid procedure before the trial Court. All the witnesses are eye-

witnesses or the employees of the Petrol Pump, who have stated on

the basis of their general knowledge gathered by way of practice.

09- Section 285 says that whosoever does with the fire, acting in a

rashly and negligent manner as to endanger the human life or likely to

cause hurt or injury to any other person or knowingly or negligently HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. Cr. C. No.38038/2020 (State of M. P. Vs. Harivallabh and Another)

omits to take such order with the fire shall be punished with an

imprisonment of 06 months and fine and therefore, under Section 285

the conduct should be knowingly and negligently. Likewise Section

304-A causing death by a negligence. Whosoever causes the death of

any person by doing any rash or negligent act does not amount to

culpable homicide. Section 337 deals with a situation where

whosoever cause hurt by doing any act so rashly or negligently as to

endanger human life or the personal safety of others.

10- In all the aforesaid three of charges, the respondents are liable

to be punished if the prosecution has established that they have acted

in a rashly and negligently manner while dealing with an inflammable

substance. Loading and unloading of a tanker at Petrol Pump is a

routine work throughout hour. The owner of the Petrol Pump cannot

said to be negligent because he will not put his Petrol Pump and life of

his employee into danger in order to deviate the settled prescribed

procedure by the Oil Companies.

11- The only allegation against the driver is that he has directed the

cleaner to open the valve immediately without waiting for 20 minutes.

The only allegation is that he has directed the deceased cleaner to

open the valve immediately but as held by the trial Court no such

settled guidelines have been produced which requires 20 minutes

waiting before opening the valve of the tanker, therefore, it cannot be

said that by opening the valve immediately, the fire took place. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. Cr. C. No.38038/2020 (State of M. P. Vs. Harivallabh and Another)

12- There is no exact timing available in respect of reaching tanker

in the Petrol Pump and exact timing of opening the valve. None of the

witness has given any fixed time about the aforesaid two facts in order

to come to conclusion that they did not wait for 20 minutes. CCTV

footage has been kept to establish the timing between reaching tanker

in Petrol Pump and opening of the valve, therefore, the allegation of

the negligence which is based on three charges have not been

established.

13- Hence, the trial Court has not committed any factual as well as

legal error in discharging the respondents. I do not find any ground to

allow the leave to appeal. The same stands dismissed.

Certified copy as per rules.

(VIVEK RUSIA) JUDGE Tej Digitally signed by Tej Prakash Vyas Date: 2021.02.27 17:56:58 -08'00'