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Himachal Pradesh High Court · body

2017 DIGILAW 1072 (HP)

State of H. P. v. Mahender Singh

2017-09-15

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. Facts, as emerge from the record are that complainant namely Kamal Kumar (PW1) got his statement recorded under Section 154 Cr.PC Ext.PW1/A, on the basis of which, an FIR Ext.PW6/A came to be registered on 6.7.2011, in the police station Dehra, District Kangra, H.P., alleging therein that he used to work with Chopra Electric Works, Kotwali Bazar, Dharamshala. It was further alleged that on 7.4.2011, Foreman of aforesaid company had to do work of sagging of high tension electricity line, which was laid one day before and in this regard, electricity supply was required to be shut down from the main source. As per complainant, he on 7.4.2011, at 10:30 am, made a telephonic call through his mobile to lineman of HPSEB requesting him to shut down the supply of electricity of the place called Rasuhi. Shri Sita Ram, official of HPSEB informed the complainant that he has been assigned some other duty by the Junior Engineer at some other place and as such, he will send some other person. Complainant further alleged that accused lineman telephonically informed him that supply of electricity has been stopped and further advised the complainant to inform when their work is complete. After having received aforesaid telephonic call from the accused, complainant climbed the pole for taking the measurement of pipe of G.O. Switch and wire for earthing but unfortunately, he got his hand touched with high tension line, as a result of which, he sustained forceful electric shock and fell down. The complainant was taken to Tanda Hospital, from where he was shifted to PGI, Chandigarh and unfortunately, his left arm was amputated due to injuries sustained by him in the unfortunate incident. On the basis of aforesaid allegations, which were made part of FIR Ext.PW6/A, police visited the spot and prepared spot map Ext.PW6/E. During investigation, police also moved an application to the Medical Officer, FRU Dehra, seeking opinion as to whether injured/complainant was able to make statement or not. Police also procured MLC of complainant Ext.M-1 and treatment summary Ext.M2 and Ext.M-3 to Ext.M-5 from PGI, Chandigarh. Senior Executive Engineer HPSEB Dehra also made available copies of posting order Ext.PA and Ext.PB. Police also procured MLC of complainant Ext.M-1 and treatment summary Ext.M2 and Ext.M-3 to Ext.M-5 from PGI, Chandigarh. Senior Executive Engineer HPSEB Dehra also made available copies of posting order Ext.PA and Ext.PB. After completion of investigation, police came to conclusion that on 7.4.2011, accused switched of the electric line rashly and negligently so as to endanger human life and personal safety of others, as a result of which, complainant sustained simple as well as grievous injuries and accordingly, presented challan in the competent Court of law under Sections 336, 337 and 338 IPC. 2. Learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P., on being satisfied that prima-facie case exists against the respondent-accused put notice of accusation to him for having committed offence punishable under Sections 336, 337 and 338 IPC, to which he pleaded not guilty and claimed trial. Respondent-accused in his statement recorded under Section 313 Cr.PC, denied all incriminating evidence led on record against him by the prosecution and claimed himself to be innocent. It also emerge from the record that accused vide his separate statement dated 13.2.2017, tendered document Exts.DX to DZ and thereafter, closed his evidence. 3. Learned court below on the basis of material adduced on record by the prosecution, acquitted the respondent-accused of allegation contained in notice of the accusation for offences punishable under Sections 336, 337 and 338 IPC. In the aforesaid background, appellant-State has approached this Court by way of instant proceedings, seeking therein conviction of the respondent-accused after setting aside judgment of acquittal recorded by the learned court below. 4. Mr. P.M. Negi, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the court below, strenuously argued that the impugned judgment passed by the learned court below is not sustainable in the eye of law as the same is not based upon the proper appreciation of evidence and as such, same deserves to be quashed and set-aside. Mr. Negi, further contended that bare perusal of impugned judgment clearly suggests that learned court below failed to appreciate the evidence in its right perspective, as a result of which erroneous findings have come on record and respondent-accused has been acquitted on very flimsy grounds. With a view to substantiate his aforesaid arguments, Mr. Mr. Negi, further contended that bare perusal of impugned judgment clearly suggests that learned court below failed to appreciate the evidence in its right perspective, as a result of which erroneous findings have come on record and respondent-accused has been acquitted on very flimsy grounds. With a view to substantiate his aforesaid arguments, Mr. Negi, made this Court to travel through the evidence led on record by the prosecution to demonstrate that prosecution successfully proved beyond reasonable doubt that complainant suffered simple as well as grievous injuries because of rash and negligent act of the accused so as to endanger the human life and personal safety of others. Learned Additional Advocate General, further contended that it has specifically come in evidence that the complainant climbed the pole for taking measurement of pipe of G.O. Switch as well as wire for earthing after having received telephonic call from the accused that he has stopped the electricity supply and as such, there was no occasion for the learned court below to conclude that there was no rashness and negligence on the part of the accused. While concluding this arguments, learned Additional Advocate General, forcefully contended that it stands duly proved on record that PW1 suffered simple as well as grievous injuries on his person and in this process, he lost his one arm. Mr. Negi, further contended that learned court below while acquitting the respondent-accused gravely erred in not taking note of overwhelming evidence adduced on record by the prosecution suggestive of the fact that respondent-accused was rash and negligent in switching off the electricity and as such, he endangered life and personal safety of the complainant. With the aforesaid submissions, Mr. Negi, contended that respondent-accused be convicted of having committed offence punishable under Sections 336, 337 and 338 IPC, after setting aside the judgment of acquittal recorded by the court below. 5. Mr. K.D. Sood, learned Senior Advocate duly assisted by Mr. Sanjeev Sood, Advocate, representing the respondent-accused refuted the aforesaid submissions having been made by the learned Additional Advocate General and contended that there is no illegality and infirmity in the impugned judgment. Mr. 5. Mr. K.D. Sood, learned Senior Advocate duly assisted by Mr. Sanjeev Sood, Advocate, representing the respondent-accused refuted the aforesaid submissions having been made by the learned Additional Advocate General and contended that there is no illegality and infirmity in the impugned judgment. Mr. Sood further contended that bare reading of impugned judgment of acquittal passed by the learned court below suggests that each and every aspect of the matter has been dealt with very meticulously and there is no mis-reading , misappreciation and misconstruction of evidence as alleged by the appellant-State. While referring to the evidence led on record by the proseuciton, Mr. Sood forcefully contended that none of the prosecution witnesses supported the version put forth by the complainant. Rather, PW1 in his cross-examination himself admitted that accused had not told him anything and after that, he left from there with another foreman. He further stated that he had no knowledge whether Mahender Singh (accused) had shut down or not. Mr. Sood further contended that there is no illegality and infirmity in the impugned judgment of acquittal passed by the court below, rather same is based upon correct appreciation of evidence and as such present appeal deserves to be dismissed being devoid of any merits. 6. I have heard the learned counsel for the parties and carefully gone through the record. 7. In nutshell, case of the prosecution, as emerge from the record, is that on 7.4.2011, Firm namely Chopra Electric Works had to do the work of sagging of high tension electricity wires at a place called Rasuhi and in this regard, complainant, who was a worker of electricity firm, telephonically asked the lineman of HPSEB to shut down the electricity for Rasuhi. Since Lineman (Sita Ram) was somewhere out, he informed the complainant that he will send some other person. Accused (Mahender Singh) telephonically informed the complainant that line has been shut down and accordingly, complainant climbed on the pole for taking measurement of pipe of G.O. Switch but unfortunately he suffered electric shock and fell down. With the aforesaid allegations of rashness and negligence on the part of the accused while switching off electricity wires, case under Sections 336, 337 and 338 IPC, came to be registered against him. 8. With the aforesaid allegations of rashness and negligence on the part of the accused while switching off electricity wires, case under Sections 336, 337 and 338 IPC, came to be registered against him. 8. Hon’ble Apex Court in case titled as Bhalchandra v. State of Maharashtra, AIR 968 SC 1319, has specifically held that “Culpable rashness arises from acting despite the consciousness of the consequences. Negligent means breach of duty caused by omission to do something which a reasonable man guided by those consideration which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. Criminal act is the gross and culpable neglect or the failure to exercise that reasonable and proper care and precaution to guard against injury either to the public or to an individual particular which having regard to all the circumstances out of which the charge has arisen which was the imperative duty of the accused-person to have adopted.” 9. It is well settled that prosecution is required to prove that some act was done; that the act was rash and negligent; that such act endangered human life or personal safety of others. Though in the instant case, as is clearly evident from the medical evidence led on record by the prosecution, complainant sustained simple as well as grievous injuries on his person and unfortunately, his one arm was amputated, but this Court needs to determine on the basis of evidence available on record that whether unfortunate accident took place due to rash and negligence of the accused or not? 10. In the case at hand, prosecution with a view to prove its case beyond reasonable doubt examined as many as eight witnesses. 11. PW1 (complainant) Kamal Kumar while deposing before the court below reiterated his allegations, which were made part of FIR Ext.PW6/A. But aforesaid witness, in his cross-examination admitted that he had only heard voice of Mahender Singh (accused) on phone and he had not seen him personally and no conversation had taken place between them. Apart from above, this material witness admitted in his cross examination that he had not asked Mahender Singh accused to shut down telephonically, rather he had asked Sita Ram. He further stated that even earlier, he used to call Sita Ram and Sita Ram used to shut down. 12. Apart from above, this material witness admitted in his cross examination that he had not asked Mahender Singh accused to shut down telephonically, rather he had asked Sita Ram. He further stated that even earlier, he used to call Sita Ram and Sita Ram used to shut down. 12. PW2 Jatinder Kumar, who was also engaged alongwith complainant in the work of sagging of wire, also stated that accused never visited on their site, rather Sita Ram used to visit the site of their work. He further stated that they were not concerned with Mahender Singh because Sita Ram used to switch off and switch on the electricity and in this regard, their foreman i.e. PW1 used to talk with him. Most importantly, this witness in his cross examination admitted that complainant had stated that he fell down from the pole due to electric shock and he had not seen the complainant while receiving electric shock. He in his cross examination further admitted that if someone had received electric shock from the pole, there had to be current in the entire pole. 13. PW3 (Sita Ram) deposed that one day, Kewal or Kamal(complainant) called him for shut down but since he was engaged on some other place as assigned by Junior Engineer, he asked him to give his phone number and to talk with Foreman. He further stated that he had given mobile number of Mahender Singh to the complainant. However, he specifically feigned ignorance with regard to the conversation allegedly took place between accused and the complainant. He further stated that accused Mahender had not told him anything and thereafter, he left from there with other foreman. This witness further stated that since they had left from there, it was accused, who had to shut down. This witness specifically stated that he had no knowledge as to whether Mahender Singh had shut down or not. 14. PW4 Narender Kumar was declared hostile as he failed to support the case of prosecution. 15. PW5, Manoj Kumar, who happened to be Supervisor on the spot with the complainant also stated that he has no knowledge as to how the complainant fell down from the pole. He also stated that at that time, Sita Ram (PW3) was dealing with the complainant. He also admitted that accused present in the Court is a Foreman. 15. PW5, Manoj Kumar, who happened to be Supervisor on the spot with the complainant also stated that he has no knowledge as to how the complainant fell down from the pole. He also stated that at that time, Sita Ram (PW3) was dealing with the complainant. He also admitted that accused present in the Court is a Foreman. This witness further stated that conversation qua switching off the line used to take place with lineman Sita Ram and Sita Ram used to switch off and switch on the line. 16. Conjoint reading of statements having been made by the aforesaid prosecution witnesses, clearly suggests that it was Sita Ram (lineman), who used to switch off and switch on the electricity line at the request of complainant (Kamal), who was Foreman at Chopra Electric Works. Kamal Kumar (PW1) in his cross-examination categorically admitted that he had not asked Mahender Singh to shut down telephonically, rather he had asked Sita Ram to shut down. He further admits in his cross-examination that he had only heard voice of Mahender and had not seen him personally and no conversation had taken place between them. It is quite apparent from the aforesaid admission having been made by the complainant that he never issued instructions to accused Mahender Singh to shut down the electricity line, rather request, if any made by him in this regard was to Sita Ram, who further gave him contact number of Mahender Singh-accused. Similarly, PW2 also stated that Sita Ram used to switch off and switch on the electricity line on the asking of their foreman namely Kamal (PW1). This witness further stated before the Court below that he did not see the complainant while receiving the electric shock. Most importantly, PW3 Sita Ram, who was asked by the complainant to shut down the electricity in his statement stated that he was on some other duty at some other place at that relevant time and as such, he had given mobile number of Mahender Singh to the complainant. It has nowhere come in his statement that after having received telephonic call from the complainant, he had further instructed Mahender Singh, who was a Foreman to switch off the electricity line. It has nowhere come in his statement that after having received telephonic call from the complainant, he had further instructed Mahender Singh, who was a Foreman to switch off the electricity line. Rather, it clearly emerge from the statement of this witness that he after having received telephonic call from the complainant, asked him to contact Mahender Singh, who also gave him his telephone number. PW1 in his cross examination has categorically admitted that he had not asked Mahender Singh to shut down telephonically, meaning thereby, there is no evidence made available on record by the prosecution suggestive of the fact that respondent-accused despite having received instructions from the complainant failed to shut down electricity, as a result of which, complainant suffered electric shock. 17. This Court was unable to lay its hand to any evidence led on record by the prosecution, suggestive of the fact that respondent-accused was asked by the complainant or for that matter, anyone from the Company to shut down the electricity line to enable the complainant to do the work of sagging of wire. None of the prosecution witnesses has stated that complainant had asked respondent accused to shut down the electricity line and accused after having received aforesaid request reverted back to the complaint intimating therein that electricity line has been switched off. 18. True, it is that in the unfortunate incident, complainant lost his one arm, but there is no evidence available on record suggestive of the fact that complainant suffered injuries on account of rash and negligent act, if any, of the respondent accused, who was otherwise, not associated with the work of switching off and switching on of electricity line. 19. Leaving everything aside, this court was unable to lay its hand to any evidence led on record by the prosecution to prove the negligence, if any on the part of the petitioner-accused. It is well settled by now that for the purpose of criminal law, high degree of negligence is required to be proved before the felony is established. But in the instant case, there is hardly any evidence suggestive of the fact that the petitioner accused was negligent at the time of alleged accident. Prosecution with a view to prove negligence, if any, on the part of the petitioner accused ought to have proved on record gross negligence on the part of the accused-petitioner. But in the instant case, there is hardly any evidence suggestive of the fact that the petitioner accused was negligent at the time of alleged accident. Prosecution with a view to prove negligence, if any, on the part of the petitioner accused ought to have proved on record gross negligence on the part of the accused-petitioner. In such like cases, there should be evidence to prove on record the amount of recklessness or negligence and same should be more than normal or ordinary. Hence, this Court has no hesitation to conclude that prosecution has failed to prove negligence on the part of the petitioner accused. A person cannot be held criminally accountable for his rashness and negligence merely because evil consequences flow from his act, rather rashness must be such as to endanger human life or personal safety of others. Similarly, for criminal liability, the rashness or negligence must show a disregard for human life or personal safety of others. Question whether an act is criminally rash or negligent is question of fact depending upon the circumstances of particular case and as such, needs to be elucidated minutely and with certain degree of precision. But in the instant case, prosecution was unable to prove beyond reasonable doubt negligence, if any, on the part of the petitioner-accused. 20. Apart from above, there is another aspect of the matter, which creates doubt with regard to correctness of the story put forth by the prosecution. Admittedly, as per own case of the prosecution, accident took place on 7.4.2011 but interestingly, FIR Ext.PW6/A, came to be registered at police station Dehra on 6.7.2011 i.e. approximately after three months. Investigation in the instant case, commenced only after 6th July, 2011, whereafter police visited the spot and prepared spot map Ext.PW6/E. It is not understood what investigation police carried out on the spot after three months of alleged incident. There is no explanation worth the name placed on record by the prosecution, especially complainant with regard to the delay in lodging of FIR save and except that he remained admitted in PGI, Chandigarh and as such, was unable to register the FIR. But perusal of discharge and follow up card Ext.M4 suggests that the complainant was discharged from the hospital on 30.4.2011 i.e. after 25 days of accident, but even there is no explanation that why he could not lodge FIR till 6th July, 2011. But perusal of discharge and follow up card Ext.M4 suggests that the complainant was discharged from the hospital on 30.4.2011 i.e. after 25 days of accident, but even there is no explanation that why he could not lodge FIR till 6th July, 2011. There is also no explanation available on record that what prevented the complainant from lodging FIR after his discharge from the hospital i.e. on 30.4.2011. It also emerge from the perusal of the application Ext.PW6/D that medical officer vide his separate note, had opined that patient is fit for giving the statement. But it is not understood that despite there being aforesaid opinion rendered by the medical officer, why police failed to record statement of the complainant and thereafter, register FIR against the accused. 21. By now it is well settled that delay in lodging FIR, if not explained, it always creates suspicion and doubt with regard to correctness and genuineness of the contents of FIR. Since, FIR in the instant case, came to be registered after three months, this Court sees substantial force in the argument of learned senior counsel for the accused that FIR was lodged after due deliberation that too with a view to obtain claim/compensation from the contractor as well as electricity department. PW1 in his cross examination categorically admitted that he filed compensation case against the Chopra Electric works as well as electricity department. 22. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon’ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that “no man is guilty until proved so”, utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon’ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Reliance is also placed on Judgment passed by the Hon’ble Apex Court in C. Magesh and Ors. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Reliance is also placed on Judgment passed by the Hon’ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC 645 , wherein it has been held as under:- “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” 23. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgment passed by the learned court below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and the same is upheld. Accordingly, the appeal is dismissed being devoid of any merits.