Rajasthan High Court - Jodhpur
Giri Raj vs State on 14 July, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
<p align="center"><b><font face="verdana" size="2">Case No. CRLA - 407 of 1997</font></b></p><br /> <p align="center"><textarea id="textfield" name="textfield" rows="27" cols="100"> IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : (1) S.B.CRIMINAL APPEAL NO. 407/1997 Giri Raj vs. State of Rajasthan (2) S.B.CRIMINAL APPEAL NO. 416/1997 Surendra Kumar vs. State of Rajasthan DATE OF JUDGMENT: 14th JULY, 2016 P R E S E N T HON'BLE MR.JUSTICE ARUN BHANSALI Mr.Suresh Kumbhat, ] Mr.Vineet Jain, ]for the appellants. Mr. Rajesh Bhati, Public Prosecutor. BY THE COURT:
These appeals have been filed by the accused appellants aggrieved against the judgment dated 13/8/1997 passed by the Additional Sessions Judge, Rajsamand in Sessions Case No.89/96, whereby, the appellants have been convicted for the offence under Section 304 Part II IPC and Section 286 IPC and have been sentenced as under:-
Under Section 304 Part II IPC - 03 years R.I. and fine of Rs.2000/- and in default of it two months imprisonment.
Under Section 286 IPC - 06 months R.I. and fine of Rs.1000/- and in default of it one month imprisonment.
The facts in brief may be noticed that one Arjun Lal gave statement to the Sub Inspector of Police Station, Nathdwara in an inquiry under Section 174 Cr.P.C. in which it was stated that Arjun Lal had purchased a 2 kg Gas Cylinder from a trader at Delhi Bazar Nathdwara and that Gas Cylinder was got refilled through appellant Giri Raj 2-3 times; on 24/8/1994 the Gas Cylinder was got filled from Giri Raj and when Stove with the said Cylinder was sought to be operated, it was not working properly, the informant, thereafter, went to the temple and when he came back and cooking was started on coal stove, at that time, the gas which had leaked into the room caught fire and inmates of the house received burn injuries and were admitted to the hospital. Thereafter, four persons died due to said mishap. A case under the provision of Section 286 and 304 IPC was registered and investigation was commenced.
After the completion of investigation, a challan was filed against the two appellants for the aforesaid offence; charges were framed against the appellants, who pleaded not guilty, as such, trial was started and the prosecution examined 08 witnesses. The accused in their statements under Section 313 Cr.P.C. controverted the evidence of the prosecution but did not choose to lead any evidence.
At the conclusion of the trial, the trial court found that Surendra Kumar had sold the Gas Cylinder and that the burner which was attached to the Gas Cylinder was defective and that Gas Cylinder has been negligently refilled, therefore, there was a leakage of gas which resulted in the said mishap, trial court also came to the conclusion that the first informant himself was negligent in handling the Gas Stove and that the appellants were in full knowledge that their act could endanger human life and, therefore, they were convicted and sentenced as indicated hereinbefore.
It is submitted by the learned counsel for the appellant Surendra Kumar that the trial court committed an error in convicting the appellant for the offence in question as the prosecution has failed to establish the guilt, the FIR was lodged after seven days of the incident, the name of the appellant was not included in the FIR, which makes the story of the prosecution suspicious. The prosecution failed to connect the sale of Gas Stove/Cylinder with the appellant. The conviction under Section 286 IPC cannot be sustained as it cannot be said that the appellant had dealt with any explosive substance as the Gas Cylinder in question was sold without any gas which is proved from the statement of P.W.4 Arjun Lal. The connecting evidence is also totally missing, even as per the prosecution story the Gas Stove was used for a long time and Cylinder was got refilled three times by Arjun Lal and, therefore, it cannot be said that there was any manufacturing defect and at best the same was only mishandling on the part of first informant. He submitted that the finding of guilt against the appellant is not supported by any evidence.
Learned counsel for the appellant Giri Raj submitted that there is no evidence worth the name that the appellant had refilled the Cylinder in question, there was no evidence available on record to show that the Cylinder was negligently refilled. The case in hand is only of mishandling of Gas Stove. The Gas Cylinder in question was seized by the police but the same was not examined scientifically so as to show that the Cylinder was defectively filled, therefore, the prosecution has failed to establish the appellant's guilt in any manner. Further submissions were made that no case for conviction either under Section 286 IPC or Section 304 Part II IPC is made out and, therefore, the judgment impugned deserves to be set aside.
Learned Public Prosecutor duly supported the judgment of the trial court. It was submitted that the dealing with Gas Cylinder and its sale by the appellants has resulted in death of four innocent persons and appellants were dealing with the Cylinder/Gas without any licence, therefore, they were liable to be punished for the offences for which they have been convicted and, therefore, the judgment passed by the trial court does not call for any interference.
I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.
On behalf of the prosecution 08 witnesses were examined and the crucial witness has been P.W.4 Arjun Lal, who is first informant also. Arjun Lal in his statement indicated that he used to live along with his sisters Lalita & Radha, brothers Khumbhal Das & Rajendra, father Bhanwar Lal and mother Chandu; 22 months before the date of incident, he purchased Gas Stove for preparing tea, the Gas Stove was purchased from Suresh Katharia for a sum of Rs.110/-, the Gas Stove was of 2 kg, bill was not given to him; the cylinder was got filled from Giri Raj for Rs.40/-, which was checked and was informed to be OK and, whereafter, the cylinder was got refilled, which lasted for 10-15 days, and was again got refilled, which last for 20-25 days, whereafter, lastly the cylinder was got refilled and he took it to his house and when put to use, the same started with big flame and thereafter dimmed and he closed it, whereafter, he went to temple and returned back after 30-45 minutes and again lit the match stick for starting the Coal Stove, which resulted in fire in the room. Complainant, his mother Chandu, sisters Lalita and Radh and younger brother Khumbhal Das caught fire, who were taken out of the room and were taken to Nathdwara hospital. His mother Chandu, sisters Lalita and Radha and brother Khumbhal Das died. The fire took place when match stick was ignited. In cross examination he stated that he got the gas filled from Giri Raj three times; he did not know the name of shopkeeper from whom the cylinder was purchased but now he knows him. Shopkeeper has given him empty cylinder.
Further, Bhanwar Lal-P.W.5, father of Arjun Lal, stated that the deceased died because of burn injuries from the Gas Cylinder. The Gas Stove did not work and, therefore, coal stove was lit, which resulted in fire. He was not present at the site.
P.W.7-Surendra Lal Soni is the Investigating Officer, who stated that he had seized the Gas Cylinder from the site, during investigation the house of Surendra Kumar was searched from where two cylinders of 5 kgs and 1 kg were found. In cross examination, he stated that the incident occurred on account of lighting the coal stove.
The trial court in its impugned judgment, came to the conclusion that there was leakage from the Gas Cylinder, which fact indicates that when the burner was removed for refilling the gas and when it was replaced, there was some mistake and the burner was not properly placed and the gas was filled without proper implements and from the statement of Arjun Lal it is proved that while filling the gas in the cylinder there was negligence and Arjun Lal got it filled from Giri Raj. Accused have failed to show any other business and, therefore, they have failed to prove that they were involved in any different business; there was no reason for treating the statement of Arjun Lal as false. The trial court also assumed that if during the use of coal stove, the gas got leaked, the same would have caught fire then itself and, therefore, the gas caught fire when an attempt was made to lit the Gas Stove which proved that the cylinder was not properly refilled and burner was not properly placed and, therefore, Giri Raj committed negligence in filling the cylinder. Giri Raj had no licence to fill the gas. Accused Surendra Kumar also had no licence to sell the Gas Cylinder and from the material available on record, it was proved that accused Giri Raj gave defectively filled Gas Cylinder to Arjun Lal negligently and he was aware that by filling the gas defectively the same may result in an accident and cause danger to human life and as the intention of accused was not to cause death but they were aware that this may result in some accident, therefore, based on the said findings convicted the accused under Section 286 and 304 IPC.
A bare perusal of the entire material available on record, clearly indicates that it is only the version of Arjun Lal, which is relevant. Arjun Lal has specifically stated about getting the Gas Cylinder filled three times and, thereafter, on the last occasion when the cylinder was got filled and was being used the same did not work properly and was, therefore, closed down and he went out for about 45 minutes and after returning back when the coal stove was tried to be lit up, on account of leakage of the gas from the Gas Stove, the fire occurred resulting in death of four persons. It is an admitted fact that the Gas Cylinder in question was seized by the Police Officer from the site, however, the same was not got examined scientifically by the police and no evidence worth the name was led indicating that the Gas Stove/Cylinder was defective, which resulted in leakage of gas. However, as noticed hereinbefore, the trial court assumed large number of things i.e. that the burner was not properly fixed by the accused Giri Raj after filling the gas, which resulted in leakage of gas and ultimately it caught fire. Such an assumption made by the trial court is based on surmises and conjectures inasmuch as no such statement was either made by Arjun Lal nor by the Investigating Officer nor was there any material available on record for reaching to the said conclusion.
The trial court based on its findings that accused were dealing with the Gas Cylinder/filling of Gas Cylinder unauthorizedly has assumed things and based on that has convicted the appellants. Nowhere from the material available on record, any requirement of taking licence for selling of Gas Stove and empty Cylinder has been indicated and in fact there is no charge regarding violation of any provision requiring licence in this regard. Further, there was no occasion for the trial court to come to the conclusion that the gas burner was not properly fixed after refilling the gas third time. The statement of Arjun Lal indicates that he got the cylinder refilled three times and on two occasions the cylinder was used for about 15-20 days time and, therefore, the said aspect clearly indicates that as such there was no defect in the Gas Stove and the same was working properly, however, third time when Arjun Lal dealt with the Gas Stove and tried to lit the same and when the same did not lit properly, he went out and returned back after 45 minutes and tried to lit the coal stove instead of gas stove and during that period of 45 minutes the gas allegedly leaked. The fact as to whether the gas leaked on account of any defect while refilling the gas and/or by mishandling of the Gas Stove, there is apparently no material available on record and it was upto the prosecution to prove the said aspect beyond reasonable doubt. However, the prosecution has miserably failed to place any evidence in this regard. It is surprising that when so many members of the family were available in the room and the gas had leaked for over 45 minutes, how those who were there in the room did not smell the said leaked gas as it is a common knowledge that LPG gives a very foul smell.
In those circumstances, it cannot be assumed that the leakage occurred on account of defective Stove/faulty refilling of Cylinder and not the outcome of mishandling of the gas implement.
Further the conviction of the appellants under Section 286 IPC also appears to be doubtful as Section 286 deals with negligent conduct with respect to explosive substance and the term 'explosive substance' can only be given the meaning as defined under the Explosive Substances Act, 1908 and the Cylinder as such, apparently does not fall within the definition of explosive substances, which reads as under:-
2.Definitions. In this Act,-
(a) the expression explosive substance shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing , or aiding in causing any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;
Further, Section 304 IPC provides punishment for culpable homicide not amounting to murder and culpable homicide is defined in Section 299 IPC, wherein, it is clear that if the death is caused by doing an act with the intention of causing death, or with the intention of causing bodily injury as is likely to cause death, or with the knowledge that death is likely to be caused then the act would amount to culpable homicide and may lead to conviction under Section 304 IPC.
Whether in the present circumstances, it can be assumed that the appellants knew that Gas Cylinder sold by them and gas filled in the said cylinder was likely to cause death of the consumer, there does not appear to be any evidence attributing such knowledge to the appellants or any one of them. The trial court has only emphasized that appellant has sold the Gas Cylinder and death has occurred on account of leakage of gas from the Gas Cylinder. The said assumption is not sufficient for the order of conviction of the appellants in respect of offence punishable under Sections 286 and 304 IPC.
In view of the above discussion, this Court is satisfied that the prosecution has failed to establish guilt of the appellants beyond reasonable doubt and the trial court committed an error in convicting the appellants and the same is liable to be set aside.
Accordingly, the appeals are allowed and conviction of the appellants Giri Raj and Surendra Kumar for the offence under Section 286 and 304 IPC are set aside. The amount of fine, if paid by the appellants, may be refunded back.
(ARUN BHANSALI), J.
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