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2010 DIGILAW 700 (PNJ)

Budh Ram v. State Of Haryana

2010-01-28

KANWALJIT SINGH AHLUWALIA

body2010
Judgment 1. The present revision has been filed by Budh Ram son of Rula Ram. He was sent for trial in case FIR No.293 dated 28.9.1989 registered at Police station Gharaunda under Sections 304-A, and 379 IPC and 39 of the Electricity act, 2003. 2. The Court of Judicial Magistrate Ist Class, Karnal, found the petitioner guilty of offence under Sec.304-A IPC and sentenced him to undergo rigorous imprisonment for one year. Aggrieved against the same, petitioner had filed an appeal. The same was also dismissed. 3. The FIR Ex. PW.5/b was registered on basis of statement Ex. PA made by hem Raj. In the FIR, it was stated that the complainant was engaged in the agricultural work. He had taken four acres of land belonging to Ram Kishan on lease. The land of Budh Ram accused adjoin the land taken by the complainant on lease. Budh Ram had installed tube-well in his field but he had not built any kotha and had not obtained any electricity connection. Budh Ram used to commit theft of electricity directly from the electric pole. The complainant had restrained Budh Ram on a number of times and had also complained to Ram Lal, Sarpanch. Ram Lal had also gone to Budh Ram and had made him understand not to do the illegal act. It was also found that at number of places electric wires were cut. On 28.9.1989 at about 4.30 P. M. , wife of the complainant had gone to the field. The complainant and his son Sher singh were present in adjoining field. The wife of the complainant had touched the wires and she was electrocuted. She raised cries. With the help of lathi, the complainant had removed the wires and his wife died due to electric shock. A grievance was made by the complainant that his wife died due to rash and negligent act of petitioner Budh Ram, who indulged in the theft of electricity to energize his tube-well, by obtaining electricity connection directly from the electric pole. The above said FIR was investigated and report under Section 173 Cr. P. C. was submitted. 4. The petitioner was charged for offence under Sec.304-A IPC by the court of Judicial Magistrate, Karnal, on 9.4.1990. The above said FIR was investigated and report under Section 173 Cr. P. C. was submitted. 4. The petitioner was charged for offence under Sec.304-A IPC by the court of Judicial Magistrate, Karnal, on 9.4.1990. The charge stated that on 28.9.1989, in the area of village Peer Baroli, accused had left the electric wires alive for stealing the energy on public place and thereby negligently had caused death of Smt. Dhanpati Devi. The petitioner pleaded not guilty and claimed trial. Hem Raj, complainant, appeared as PW.1. He reiterated what was stated in the FIR. In cross-examination, complainant stated that his son Sher Singh was from the deceased smt. Dhanpati Devi, however, name of his second wife is Sheelawanti. He further stated that accused was committing theft of electricity from the last one and a half years. He had not submitted any complaint to the Lineman. Diwan Chand appeared as PW.2. He stated that he learnt in the village that Dhanpati Devi wife of Hem Raj had died. He had identified the dead body. This witness has attested the inquest. Ram Lal, Sarpanch, appeared as PW.3. He stated that 10-15 days before the occurrence Hem Raj had complained that Budh Ram illegally draw electricity from the electric pole. He had refrained the accused not to commit theft of electricity as it may cause harm to somebody. Later, he learnt that smt. Dhanpati Devi wife of Hem Raj had died due to electrocution. 5. Pw.4 Bishan Dass stated that at 5.00 P. M. , he was working in the field when he heard shriek of Smt. Dhanpati Devi. He was attracted to the spot and Smt. Dhanpati Devi had died due to electric shock. PW.5 Radhey Sham, assistant Sub Inspector, had investigated the case and deposed regarding various aspects of the investigation. 6. Rakesh Kumar, Photographer, appeared as PW.5 and proved photographs ex. Pw.6/a to Ex. PW.6/b. He also proved negatives Ex. PW.6/d to Ex. PW.6/f. 7. Thereafter, prosecution has closed its evidence. Statement of accused was recorded under Sec.313 Cr. P. C. He denied all incriminating circumstances and pleaded innocence. No witness was examined in the defence. 8. Mr. John Kumar, Advocate, appearing for the petitioner, has submitted that the statement of accused under Sec.313 Cr. P. C. was recorded on 2.6.1997. He was then 54 years of age. Statement of accused was recorded under Sec.313 Cr. P. C. He denied all incriminating circumstances and pleaded innocence. No witness was examined in the defence. 8. Mr. John Kumar, Advocate, appearing for the petitioner, has submitted that the statement of accused under Sec.313 Cr. P. C. was recorded on 2.6.1997. He was then 54 years of age. An argument was raised before the trial Court that in the present case prosecution has miserably failed to prove the cause of death. It was submitted that no Medical Officer was examined and post Mortem Report was not exhibited. No opportunity was afforded to the accused to cross-examine the doctor and bring on record that cause of death was not electrocution but the deceased had died natural death. The trial Court came to conclusion that merely because of Post Mortem Report has not been proved, it cannot be concluded that Smt. Dhanpati Devi had not died due to electric shock. The trial Court relied upon oral testimony of PW.1 Hem Raj and PW.4 Bishan Dass to conclude that Smt. Dhanpati Devi had died due to electric shock even though post Mortem Report has not been proved on the file. The Post Mortem Report showing the cause of death has neither been proved nor exhibited. 9. The lower Appellate Court had also relied upon the oral testimony of PW.1 Hem Raj and PW.4 Bishan Dass to determine the cause of death and further held that since the accused had given suggestion to the witnesses that the deceased had died due to electric shock, therefore, death on account of electric shock is proved. I have heard counsel for the parties. This Court is of the view that it is imperative for the prosecution to prove the cause of death. In the present case, where witness stated that deceased had died due to electric shock, it was incumbent, that the doctor, who had conducted post mortem, should have been examined and an opportunity should have been afforded to the accused, to cross-examine the doctor and dispel that cause of death was not electric shock. There was no reason for the prosecution to withhold the medical evidence. In case, the medical Officer who was not available, Post Mortem Report could have got exhibited from any other official of the hospital who was acquainted with the handwriting of the Medical Officer. There was no reason for the prosecution to withhold the medical evidence. In case, the medical Officer who was not available, Post Mortem Report could have got exhibited from any other official of the hospital who was acquainted with the handwriting of the Medical Officer. Thus, there was a vital lapse on the part of prosecution. 10. In the present case, occurrence had taken place in September 1989. A period of more than 21 years is going to elapse. Therefore, for this reason, this Court is of the view that to remand the matter to the trial Court below will not serve any useful purpose and it will also cause prejudice to the accused who has already suffered a protracted trial of more than two decades. 11. Accordingly, the present revision petition is accepted and conviction and sentence awarded upon the petitioner is set aside and the petitioner is acquitted of the charges.