1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No. 359 of 2010 Order Reserved on : 05/05/2025 Order Delivered on : 09/05 /2025 1. Shabbir Hussain, S/o Masir Hasan, aged about 34 Years, 2. Shamim Khan, S/o Dilsan Khan, aged about 36 Years, Both are R/o Village Telaidhar, Police Station Sitapur, District Surguja, Chhattisgarh, 3. (Deleted) Mashroor Alam, S/o Abid Khan (Died) as Per Honble Court Order Dated 21/10/2022 and 27/01/2023. ... Applicants versus • State of Chhattisgarh Through Station House Officer, Police Station Sitapur District Surguja, Chhattisgarh, ... Respondent For Applicants : Ms. Shriya Jaiswal, Advocate on behalf of Ms. Anubhuti Marhas, Advocate For State/Respondent : Ms. Smita Jha, Panel Lawyer Hon'ble Shri Justice Radhakishan Agrawal CAV Order 1. The present applicants have preferred this criminal revision under Section 397 read with Section 401 of Cr.P.C. against the order dated 24.07.2010 passed by the Fourth Additional Sessions Judge (Fast Track Court) Ambikapur, District - Surguja, Chhattisgarh, in Criminal Appeal No.43/2009, whereby the learned Appellate Court dismissed PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.05.09 15:44:04 +0530 2 the appeal, while affirming the judgment dated 30.04.2009 passed in Criminal Case No.448/2007 by the Judicial Magistrate First Class, Sitapur, District – Surguja, Chhattisgarh, convicting the applicants under Section 304-A of Indian Penal Code (for short, 'IPC') and sentencing them to undergo rigorous imprisonment for six months each and fine of Rs.400/- each, in default thereof, to undergo additional imprisonment for two months. 2. Case of the prosecution, in brief, is that on 05.05.2004, the accused persons/applicants had installed a thresher machine for their wheat crop which was to run on electric current. It is alleged that the applicants had called one Shahjahan (deceased) of the village and asked him to climb over the electric pole and connect the thresher wire stating that they have spoken to the lineman of Sitapur who has disconnected the electric current on the line and further told that the line would be reconnected at about 3:00 – 4:00 PM. While Shahjahan was working on the pole, the electric line was started as a result of which he came in contact with the electric and got burnt and fell down from the pole. Thereafter, he was taken to Hospital at Sitapur. Subsequently, when he was being taken to Raipur on the advice of the doctor, he succumbed to injuries at about 11:00 PM on the way. Mansoor Khan (PW-01) who is the brother of the deceased along with Izrail Khan and Akhbar Khan (PW-05) lodged merg intimation (Ex.P-1) on 06.05.2004 and FIR was lodged vide Ex.P-4. Inquest proceedings were conducted vide Ex.P-2 and the dead body of the deceased was sent for postmortem vide Ex.P-3 which was conducted by the doctor who gave the report vide Ex.P-07 and opined that the death of the 3 deceased was caused due to cardio-respiratory arrest and spinal shock. 3. During investigation, spot map was prepared vide Ex.P-5 and the statements of the witnesses were recorded under Section 161 of Cr.P.C. 4. After completion of investigation, charge sheet has been filed against the present applicants before the Court of Judicial Magistrate First Class, Ambikapur. The accused persons / applicants abjured their guilt and prayed for trial. 5. After appreciation of oral and documentary evidence available on record, the Court of learned JMFC and the Appellate Court, convicted and sentenced the applicants as mentioned in the paragraph one of this order. Hence, this revision. 6. Learned counsel for the applicants would submit that the Court of JMFC as well as Appellate Court, without properly appreciating the evidence available on record, were not justified in convicting and sentencing the applicants for the aforesaid offence. She would further submit that there are material inconsistencies in the statements of prosecution witnesses and their statements are not duly corroborated with each other. There is no eye witness to the alleged incident and the prosecution witnesses are hearsay witnesses. This apart, the name of applicant No.2 – Shamin Khan is not mentioned in the merg intimation (Ex.P-1) which was lodged by brother of the deceased Mansoor Khan (PW-01). She would further submit that Mansoor Khan, in his cross- examination has clearly admitted the fact that the deceased was not an electrician but he was a mechanical worker. Thus, the prosecution has 4 failed to prove its case beyond reasonable doubt. On these premises, it is prayed by counsel for the applicants that the applicants be acquitted of the charge leveled against them. Reliance has been placed upon the judgment passed by the Hon’ble Supreme Court in the matter of Nanjundappa and Another Vs. State of Karnataka reported in 2022 SCC Onlinei SC 628. 7. On the contrary, learned counsel for the State, while supporting the impugned judgments, submits that the Court of JMFC as well as Appellate Court have rightly convicted and sentenced the applicants and there is no illegality or infirmity in the same warranting interference by this Court. 8. I have heard learned counsel appearing on behalf of the parties and perused the record. 9. Mansoor Khan (PW-01) in his statement has stated that on the date of incident, he was in Sitapur and he has not seen the incident. He was informed by Akhtar Hussain (PW-02) that the accused persons had called his brother (deceased) to connect thresher wire and while he was connecting the wire in the electric pole, he got electrocuted and fell down and sustained injuries, thereafter, he was taken to Sitapur hospital for treatment. Upon such information, when this witness went to see his brother to Sitapur hospital, the deceased told him that he made a mistake in believing the accused persons. However, this witness in his cross-examination has admitted that his brother (deceased) was not an electrician and used to do mechanical work. Thus, from the statement of this witness it appears that this witness is a hearsay witness and that deceased was not pressurized by the 5 accused persons to connect the wire to the thresher machine. Moreover, this witness, while lodging the merg intimation (Ex.P-1) has not specifically mentioned the name of applicant No.2 – Shamim Khan and it also appears that the deceased was not an electrician. 10.Akhtar Hussain (PW-02) in his statement has stated that he has not seen the incident. This witness in his cross-examination has admitted that he did not know how the deceased got electrocuted. He further admitted that the deceased was an adult and a sensible person. He further admitted that generally, every person knows that one should not climb the electricity pole or otherwise it may have fatal consequences. 11.Israfil Khan (PW-03) in his examination-in-chief has stated that on being told by wife of the deceased, he went towards the house of Ijajul where the deceased was lying in a cot and when he asked about the incident, the deceased told him that accused Shabbir and Akhtar had told him to connect wire in the electric pole and when he climbed the electric pole, at that time he came in contact with the electricity and got electrocuted. However, Mansoor Khan (PW-01) who lodged the merg intimation (Ex.P-1) has not stated that the deceased has informed about the alleged incident to this witness (Israfil Khan). 12.Akhbar Khan (PW-05) who accompanied Mansoor Khan (PW-01) to lodge the merg intimation (Ex.P-1) has stated that on the date of incident he was in his house, at that time his grandson Asif Khan informed him that deceased Shahjahan has got electrocuted and admitted in the Sitapur Hospital. After that, this witness went to Sitapur Hospital to see the deceased but the deceased did not tell him about the alleged incident and except this he did not know about the alleged 6 incident. However, this witness in his statement (Ex.P-6) has stated that when he had gone to Sitapur to see the deceased, at that time the deceased was conscious condition. Further, Asif Khan who informed him about the incident has also not been examined by the prosecution. Thus, a perusal of above evidence, it appears that all the above witnesses are not eye witnesses and their evidence does not connect the death of the deceased by negligent act caused by the accused persons, more so, the above witness has turned hostile and not supported the case of the prosecution. Similarly, Naim Khan (PW-06), Sejan @ Sejam Khan and Rojan Khan (PW-07) have also not supported the case of the prosecution as they also turned hostile. 13.In order to constitute the death by negligence, the prosecution has to firstly prove negligence and then establish direct nexus between the negligence of the accused persons and death of the deceased. In this regard, Section 304-A of the IPC is relevant and is reproduced hereunder: “304A. Causing death by negligence. - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 14. In Kurban Hussen Mohamedalli Rangawalla Vs. State of Maharastra reported in 1964 SCC Online SC 162, the Supreme Court, while dealing with the rash and negligent act, took reference of the judgment in the case of Emperor V. Omkar Rampratap (1902) IV Bom LR 679 wherein interpretation of Section 304-A IPC has been held. Para 3 is relevant which reads as under: 7 “3. We may in this connection refer to Emperor v. Omkar Prampratap where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows: “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 the cause causans; it is not enough that it may have been the cause sine qua non…..” 15. Besides above, in Nanjundappa (supra), the Supreme Court while dealing with the applicability in an action for injury by negligence has held that there should be direct nexus between the negligence of the accused and the death of the deceased. Paragraphs 8, 9, 11 and 12 are relevant for the purpose are reproduced hereunder: “8. Even the evidence of PW15 is circumstantial in nature, who stated that as per the job sheet, the Appellants were working at the Police quarters; however, there is no eye witness to say conclusively that the Appellants were infact executing the work at the place alleged.” 9. Here it would be useful to advert to the dictum in the case of Syad Akbar v. State of Karnataka (1980) 1 SCC 30: 1979 Cri LJ 1374 in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar (supra), this Court opined: “29. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, Including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other 8 hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his Innocence, and inferentially exclude all reasonable doubt about his guilt." “11. Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the Courts below were not justified in convicting the Appellants of negligence under Section 304A read with Section 34 IPC.” “12. For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim. Perusal of the record reveals that out of various witnesses arrayed by the prosecution, there are no eye witnesses. Any evidence brought on record is merely circumstantial in nature. We are constrained to repeat our observation that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact and when such current passed through the Television set, it did not blast and melt the wiring of the entire house. It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions. The Appellants therefore are entitled to be given the benefit of doubt; more so, when there is no report of a technical expert to corroborate the prosecution story.” 16.Thus, when the present matter is examined in the light of above referred case by the Supreme Court, it is quite vivid that the death of deceased was wholly of his own negligent act. This apart, as per the evidence of Mansoor Khan (PW-01), brother of the deceased, the deceased was not aware of the electrical work and was aware of doing mechanical works and in that view of the matter, had the deceased not aware of the electrical relating works, then why he himself climbed the electric pole to connect the wire and, thus, it appears from the record that the deceased himself was involved in doing such negligent work. It is pertinent to mention here that the deceased was an adult and a sensible person and was very well aware about the risk of the electrical 9 work, so it was expected of him that he would not do such act which would be harmful for his life and if he did so, then he himself is responsible for it. Further, the prosecution has utterly failed to prove its case beyond reasonable doubt that the deceased died because of the act of the accused persons/applicants. In that view of the matter, this Court is of the opinion that the accused persons/applicants are entitled for acquittal. 17.Accordingly, the impugned judgment of conviction and sentence passed by the Court of JMFC dated 30.04.2009 and that of the Appellate Court dated 24.07.2010 are liable to be and are hereby set- aside and the applicants are acquitted of the charge under Section 304-A of the IPC. 18. In the result, the criminal revision is allowed. 19.Since the applicants are reported to be on bail, therefore, their bail bonds shall remain in force for a period of six months from today in view of provision of Section 437-A of Cr.P.C. Sd/- (Radhakishan Agrawal) JUDGE Prakash