Delhi District Court
Mahesh Chand Joshi vs State on 29 April, 2019
IN THE COURT OF MS. SUNENA SHARMA, ADDL. SESSIONS
JUDGE-03(SOUTH), SAKET COURTS, NEW DELHI
CA No.256/18
Mahesh Chand Joshi
S/o Sh. Khem Chand Joshi
R/o 266 P/50A, Ward No.2,
Mehrauli, New Delhi-110030
..... Appellant
Vs.
State ..... Respondent
Date of institution of appeal : 28.06.2018
Arguments heard on : 29.04.2019
Date of Judgment : 29.04.2019
JUDGMENT
1. Present appeal has been preferred by the appellant Mahesh Chand Joshi for assailing the judgment dated 30.10.2017 and the order on sentence dated 29.05.2018 passed by Ld. Trial court in FIR No.313/08, PS Mehrauli. Vide impugned judgment, the appellant/convict was held guilty for the offence punishable u/s 304A IPC and vide impugned order on sentence, he was sentenced to undergo SI for six months for the offence punishable u/s 304 A IPC. He was further directed to pay compensation of Rs. 1,50,000/- to legal heirs of deceased.
2. Brief facts of the prosecution case as emanating from the trial court record and the present appeal are that on 18.06.2009, on receipt of DD no.20A regarding accident due to electrocution at H. No.266P/50A, Garhwal Colony, Mehrauli, New Delhi, SI Sushil Kumar alongwith Ct. Shiv Kumar reached at the spot where they came to know that injured had already been taken to Safdarjung hospital by CA No.256/18 Mahesh Chand Joshi Vs. State Page No.1/15 PCR van. No eye witness was found at the spot. Thereafter, SI Sushil Kumar alongwith Ct. Shiv Kumar reached to Safdarjung hospital but there also, no eye witness was present. IO collected MLC no.24576 of injured Triveni Pandit upon which, doctor had opined the nature of injury as dangerous. The said DD was kept pending. On the next date i.e. on 19.06.2008, injured Triveni Pandit expired and upon said information, IO got conducted the postmortem of deceased and received the report from hospital. Thereafter, he got the spot inspected through Department of Electricity and collected the report. On the basis of said report, he prepared rukka on said DD no.20A and got the present FIR registered against the accused.
3. During investigation, IO arrested the accused, got the spot photographed, prepared the site plan, recorded statement of witnesses. After completion of investigation, he filed the chargesheet before trial court upon which cognizance was taken by the trial court and appellant/convict was summoned vide order dated 24.03.2011. Vide order dated 21.11.2011, notice u/s 251 Cr.PC was framed against appellant for the offence punishable u/s 304-A IPC to which he pleaded not guilty and claimed trial.
4. During trial, prosecution examined as many as six witnesses. PW1 Guddan Pandit & PW2 Ramesh Pandit are the brothers of deceased and they are cited as eye witnesses of incident. PW3 ASI Babu Lal is the formal witness who, on 19.06.2008 recorded present FIR No.313/08 vide Ex. PW3/A and made his endorsement Ex. PW3/B on the rukka. PW4 Mahesh Kumar Sharma is the Assistant Electrical Inspector who inspected the place of incident on 23.06.2008 and proved the technical report prepared by him as Ex. PW4/A. PW5 CA No.256/18 Mahesh Chand Joshi Vs. State Page No.2/15 Retired SI Sushil Kumar is the investigating officer while PW6/HC Shiv Kumar had accompanied the IO during investigation. Trial record further shows that certain documents like MLC No.54720 dated 18.06.2008 Ex. A-1 of deceased and PM report dated 20.06.2008 Ex. A-2 of deceased were admitted by the defence u/s 294 Cr.P.C.
5. After completion of prosecution evidence, statement of convict/appellant u/s 313 Cr.P.C. was recorded wherein, he denied all the incriminating evidence as incorrect and came up with the defence that he has been falsely implicated. He further stated deceased was not working at his house and he (accused) was not under any liability to take any precautions to avoid the deceased being electrocuted. He further stated that he was not the owner of premises where alleged incident took place and therefore, he was not liable for the alleged offence. The convict/appellant did not chose to lead any evidence in defence.
6. The trial court after hearing the arguments from both the sides passed the impugned judgment dated 30.10.2017 convicting the appellant for the offence punishable u/s 304A IPC and further sentenced him for said offence vide impugned sentence order dated 29.05.2018.
7. The present appeal has been preferred by convict/ appellant mainly on the ground that the impugned judgment and sentence order are illegal, erroneous and not in accordance with law; that the impugned judgment is based upon surmises and conjectures; that Ld. Trial court failed to appreciate that there is no rash or negligent act on the part of the accused because as per prosecution CA No.256/18 Mahesh Chand Joshi Vs. State Page No.3/15 case, deceased died by receiving electric shock from the naked wire of transformer of BSES Rajdhani Power Ltd. whereas, transformer is neither the property of accused nor the same was installed in his property; that Ld. Trial court failed to appreciate that the negligence was on the part of BSES Rajdhani Power Ltd. only and not that of accused as it was the duty and responsibility of BSES Rajdhani Power Ltd. to ensure that the transformer and connected wires were properly insulated; that Ld. Trial court failed to appreciate that Ex. PW4/A clearly establishes the negligence on the part of BSES Rajdhani Power Ltd.; that Ld. Trial court failed to appreciate that accused had no control or authority upon the transformer owned by BSES Rajdhani Power Ltd.; that Ld. Trial court failed to appreciate that none of prosecution witnesses have alleged any negligence on the part of accused as such, the prosecution has failed to establish any case u/s 304 A IPC; that Ld. Trial court failed to appreciate that there are vital defects and material contradictions in the prosecution case as prosecution has miserably failed to prove the ownership of accused in respect of property no. 266-P/50A, Ward no.2, Mehrauli and also failed to prove that deceased was working under accused's instruction and that Ld. Trial court erred in relying upon the testimony of alleged eye witnesses as they were neither working at the aforesaid property at the time of incident nor they even accompanied the deceased to hospital. On the aforementioned grounds of appeal, appellant/convict has prayed for setting aside of both the impugned judgment as well as the order on sentence.
8. The arguments of counsel for the appellant is more or less on the lines of grounds of appeals as cited above. In addition, it is further urged that Ld. Trial court has fallen into grave error by CA No.256/18 Mahesh Chand Joshi Vs. State Page No.4/15 completely ignoring the inspection report which apparently shows that electricity pole from the wires of which, deceased got electrocuted was installed in the street outside the house in the balcony of which, deceased was allegedly working and accused was not at fault.
9. On the other hand, Ld. Addl. PP rebutted the arguments by submitting that merely on account of some minor discrepancies in the testimony of eyewitnesses, the otherwise consistent testimony of said witnesses cannot be discarded. The rest of the arguments of Ld. Addl. PP are on the lines of the reasoning given by Ld. Trial court in the impugned judgment and it is urged that same does not call for any interference by this court.
10. I have given my thoughtful consideration to the submissions made by counsel for appellant as well as Ld. Public Prosecutor for the state and also perused the entire trial court record.
11. As per trial court record, the allegations are that on 18.06.2008, at about 12:15 pm, the deceased was working at the house of the accused at H. No.266P/50A Garhwal Colony, Mehrauli, New Delhi and accused failed to take appropriate steps/precaution to prevent electrocution from high tension transformer/electric wire installed in front of his house as a result of which, the deceased who was employed to carry out masonry work by the accused at his aforementioned house, got electrocuted and died by said rash and negligent act not amounting to culpable homicide and accused caused death of the deceased.
CA No.256/18 Mahesh Chand Joshi Vs. State Page No.5/1512. I have carefully examined the deposition of two eye witnesses namely Ramesh Pandit and Guddan Pandit examined as PW2 and PW8 respectively. As per deposition of PW8, incident occurred in the year 2008 and on the date of incident, he alongwith his two brothers i.e. PW2 Ramesh Pandit and Triveni Pandit i.e. deceased were carrying out plastering work at the house of accused Mahesh Joshi situated at Garhwal Colony, Mehrauli. PW8 was working on the lower most floor of the house of the accused while his two brothers were working at the first floor of the house. During working on the lowermost floor, PW8 heard noise from the balcony of the first floor and rushed to the first floor immediately and there he saw that his younger brother namely Ramesh Pandit was dragging his elder brother Triveni Pandit inside from the balcony. He further deposed that there was a transformer installed in front of the house of the accused and one of its hook was found protruding inside the balcony of the house of the accused.
13. In his cross-examination, he deposed further that he was standing in the street at the time of incident. He did not go with his deceased brother to the hospital nor he did call at 100 number. He however, went to the hospital after 10 minutes. He denied the suggestion that he was not working at the house of the accused or that accused was not residing at the place of incident or that there was no construction work going on in the house of accused.
14. PW2 Ramesh Pandit is the another eye witness who was allegedly working at the same floor where the deceased was working at the time of incident. As per his version, on 28.08.2008, he alongwith his two brothers namely Triveni Pandit and Guddan Pandit CA No.256/18 Mahesh Chand Joshi Vs. State Page No.6/15 were working at the house of the accused at Mehrauli. He deposed that suddenly, due to short circuit electricity current fell on his deceased brother Triveni Pandit and the deceased fell down in the balcony. He deposed further that when they reached near the deceased, they found that deceased had got electrocuted but deceased was breathing at that time. Further that, police came and thereafter, took the deceased to Safdarjung hospital.
15. The perusal of the examination of PW2 further shows that he was cross-examined by Ld. PP with the permission of the court as he was residing from his earlier statement. In the cross examination by Ld. Addl. PP, PW2 admitted the suggestion that deceased died due to electric shock sustained by the wire coming from the pole falling in the house of the accused and that the incident had taken place as the pole was not un-installed by the accused and accused asked them to work at that time.
16. In his cross-examination by the defence counsel, PW2 admitted that he had visited the hospital only on the next date. He however, denied the suggestion that he was not present in Delhi on the date of incident and had reached Delhi only on the next day. He denied the suggestion that no work was being carried out at the house of the accused by his brother or any other person as stated by him. He further denied the suggestion that no construction work was going on in the house of the accused.
17. From the deposition of both above witnesses, it is clear that at the time of incident, deceased was working in the balcony of first floor of the house of the accused and he got electrocuted while CA No.256/18 Mahesh Chand Joshi Vs. State Page No.7/15 he was present in the balcony. Though, from the cross-examination of PW2 conducted by Ld. Prosecutor, the prosecution appears to have set up a case that the electric pole was inside the house of the accused and the deceased got electrocuted from said electric pole inside the house of the accused. However, in this regard, I would like to refer to the inspection report of PW4 Assistant Electrical Inspector which is available on record as Ex. PW4/A. Said report was prepared by PW4 after inspecting the place of incident. The report Ex. PW4/A reflects that during the course of investigation, it was reported to PW4 that the deceased Triveni Pandit, a meson while carrying out some plastering work at House no.P-266/50A. Ward No.2, Garhwal Colony, Mehrauli, Delhi, happened to come in contact with live parts of the High voltage distribution system installed on tubular metallic pole in front of the said house and received burn injuries which proved fatal.
18. The report further reveals that at the time of inspection on 23.06.2008, electric pole supporting a 25 KVA transformer (6.6KV/230V, single phase) was found installed in front of the house no. P-266/50A, Ward No.2, Garhwal Colony, Mehrauli, New Delhi. A high voltage D.D. fuse assembly alongwith 25 KVA transformer was mounted at the top of the metallic pole. The top of high voltage DD fuse assembly was found protruding inside the balcony of said house, rendering the live parts exposed and accessible from the balcony of first floor of the said house. The horizontal clearance between the live parts of HT bushing of said transformer and the building was found to be 0.54 meters and also the live parts of the HT bushing were not fully covered with insulating material. As such the live parts of the HT bushing were rendered exposed and accessible from the building. The CA No.256/18 Mahesh Chand Joshi Vs. State Page No.8/15 conductor connecting the DD fuse and HT bushing of 25 KVA transformer was running at a horizontal distance of 0.35 meters from the building, whereas it should not be less than 1.2 meters. Also flashover marks were observed on the top end of the DD fuse, wall of the house and the conductor connecting the DD fuse and HT bushing of the Transformer.
19. As per report, at the time of inspection, the following provisions of the Indian Electricity Rules, 1956 were found to have not been complied with:-
1. Adequate precautions had not been taken to ensure that no live parts are so exposed as to cause danger, in contravention of the provisions of rule 50 (1) (f) of the said rules in the following respect:-
(a) The horizontal clearance between the live parts of HT bushing 25 KVA transformer and the building was found to be 0.54 meters and the live parts of the HT bushing were not fully covered with insulating material. As such the live parts of the HT bushing were rendered exposed and accessible.
(b) The live parts of high voltage fuse were found exposed and accessible from the first floor balcony of the said house.
2. The horizontal clearance of the conductor connecting the DD fuse and H.T bushing of 25 KVA transformer from the building was found to be 0.35 meters., in contravention of the provisions of rule 80 (2) (a) of the said rules.
20. Before adverting to the respective contentions of the parties, I also deem it appropriate to discuss the relevant law concerning the issue in question i.e. whether the accused acted rashly and negligently and thereby caused death of deceased, not CA No.256/18 Mahesh Chand Joshi Vs. State Page No.9/15 amounting to culpable homicide. In Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1, it was held by Hon'ble Apex Court that in order to hold the existence of criminal rashness or criminal negligence, it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such act with recklessness or indifference to the consequences.
21. The law laid down by Straight, J. in the case Reg vs. Idu Beg (1881) 3 ALL.776 has been held good in cases and noticed by three judge bench of Hon'ble Apex Court in Bhalchandra Waman Pathe vs. State of Maharashtra, 1968 MH.L.J. 423; wherein, it has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstance out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
22. In Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra, (1965) 2 SCR 622 Hon'ble Apex Court, while dealing with Section 304A of IPC cited the following statement of law laid down by Sir Lawrence Jenkins in Emperor vs. Omkar CA No.256/18 Mahesh Chand Joshi Vs. State Page No.10/15 Rampratap 4 Bombay LR 679 wherein it was held that:
"To impose criminal liability under Section 304-A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sina qua non."
23. In Prabhakaran vs. State of Kerela 2007 14 SCC 269 Hon'ble Apex court while dealing with Section 304A IPC, defined 'rashneas' and 'negligence' as under:-
"8. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
24. I have carefully examined the entire evidence adduced on record and also carefully perused the entire trial court record. In the impugned judgment, Ld. Trial court has noted that in order to convict the accused u/s 304A IPC, the prosecution has to establish a) there must be death of the person; b) the accused must have caused such death; c) such act of the accused was rash and negligent and that it does not amount to culpable homicide. Ld. Trial court also drew the distinction between rash and negligent act from the judgment of CA No.256/18 Mahesh Chand Joshi Vs. State Page No.11/15 Hon'ble Apex Court in Cherupin Gregory vs. State of Bihar AIR 1965, SC 205 wherein, it was held that the voltage of the current passing through the naked wire being high enough to be lathal, there could be no dispute that charging it with current of that voltage was a rash act done in reckless disregrd of the serious consequences to people coming into the contact with it for which the accused is solely responsible under Section 304A."
25. However, it appears that while noting the law laid down in the aforementioned judgment, the trial court completely ignored the distinct facts of said case wherein, the accused had fixed up an electrically charge copper wire at the back of his house with a view to prevent entry of intruders into his latrine. Whereas, in the instant case, the deceased got electrocuted when he was plastering inside a building near a window and accidentally came in contact with a live part of high voltage fuse and HT bushing over the electric pole installed just in front of the house, where he was allegedly working. And same is also evident from the alleged history given in the MLC of the deceased, available on record as Ex. A1. Even the photographs of the place of incident P-1 and P-2 shows that the electric pole supporting a transformer and DD fuse assembly mounted at the top was installed outside the house of the accused and the top end of the DD fuse assembly was protruding inside the balcony of said house. Same is the observation given by Assistant Electrical Inspector who inspected the spot on 23.06.2008 and filed the inspection report dated 08.06.2009 Ex. PW4/A. In said report, it has been further observed that on account of said protrusion of top end of DD fuse assembly inside the balcony of house no. 266-P/50A, rendered the live parts exposed and accessible from the balcony of first floor of CA No.256/18 Mahesh Chand Joshi Vs. State Page No.12/15 said house. Further that, horizontal clearance between the live part of HT bushing of transformer and the building was found to be 0.54 meters and the live parts of HT bushing were not fully covered with insulating material. Further, in view of above condition of the electric pole, transformer, HT bushing, DD fuse assembly contraventions of provisions of rule 50 (1) (f) and rule 80 (2) (a) of Indian Electricity Rule, 1956 was found to have been made.
26. Here, I may also refer to relevant Electricity Rule, 1956 which are as under:
Rule 50 (1) (f):- Supply and use of energy -
(1) The energy shall not be supplied, transformed, converted or used or continued to be supplied, transformed, converted or used unless provisions as set out below are observed:-
(f) adequate precautions shall be taken to ensure that no live parts are so exposed as to cause danger.
27. From the aforementioned inspection report and the photographs of the place of incident lying on record, it is apparently clear that an electric pole belonging to electricity department was lying installed outside the house of the accused and at the time of alleged incident, deceased was plastering inside the house near the window in the balcony of the first floor and since the high tension live parts of transformer and DD fuse, were protruding towards the balcony of the house and the same were not properly insulated, it appears that the deceased got electrocuted when he accidentally happened to touch the live parts of the transformer which were exposed and accessible from the balcony of the accused's house. It is nowhere the case of the prosecution that the accused was indulging CA No.256/18 Mahesh Chand Joshi Vs. State Page No.13/15 into any unauthorized extraction of electricity from the live wire of the electric pole installed outside his house. In view of the circumstances when the electric pole having uninsulated high tension parts of transformer and DD fuse were protruding towards the balcony of the house where the deceased was allegedly doing the work of plastering, the rashness and the negligence is purely attributable to the concerned inspector of the electricity department who was in charge of the area and failed to take necessary precautions. Even the inspection report clearly mentions that there was clear non compliance of Rule 50 (1) (f) and Rule 80 (2) (a) of Indian Electricity Rule, 1956 as neither the live parts were properly installed nor there was required horizontal clearance between the live parts of HT bushing of transformer and the building.
28. Despite there being apparent negligence on the part of concerned officials of BSES Rajdhani Power Ltd., who was in charge of that area, the IO made the owner of the house as an escape goat. Surprisingly, even the trial court turned blind eye to such an apparent flaw in the charge sheet and held the accused guilty by attributing rashness and negligence on his part. As surfaced from the material on record, the deceased had got electrocuted on account of his having accidentally touched the high tension (live) parts of transformer and HT bushing which were protruding towards the balcony of accused's house. The said transformer and HT bushing were mounted on the top of the electric pole installed by electricity department without caring about the proper insulation of exposed and accessible live parts and without ensuring the minimum horizontal clearance between said parts and the building.
CA No.256/18 Mahesh Chand Joshi Vs. State Page No.14/1529. Having regard to aforementioned discussion, I am of the view that prosecution has miserably failed to prove the rashness or negligence on the part of the accused in causing the death of the deceased. Hence, trial court has fallen into grave error in fixing the responsibility on the accused and holding him guilty. The impugned judgment is totally illegal and incorrect and same is liable to be set aside. Accordingly, the appeal stands allowed. Appellant stands acquitted. Impugned judgment and sentence order are hereby set aside.
30. In view of setting aside of judgment of conviction, appellant/accused is directed to furnish personal bond in the sum of Rs.20,000/- with one surety each of the like amount in terms of Section 437-A Cr.P.C. before Ld. Trial Court within 7 days.
31. TCR be sent back alongwith copy of this judgment.
32. Appeal file be consigned to record room.
Announced in open Court on 29.04.2019 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2019.05.02 11:32:23 +0530 CA No.256/18 Mahesh Chand Joshi Vs. State Page No.15/15