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CASE NO.: Appeal (crl.) 34  of 2001         Special Leave Petition (crl.)   2435     of 2000

PETITIONER: RAM KUMAR LAHARIA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ANR.

DATE OF JUDGMENT:       08/01/2001

BENCH: M.B.Shah, S.N.Variava

JUDGMENT:

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     J U D G M E N T S.  N.  VARIAVA, J.

     Leave granted.  Heard parties.  This Appeal is against an  Order  dated 29th March, 2000 by which an order  framing charges  under  Sections  302 and 304 of  I.P.C.   has  been quashed.   By the impugned Order the prosecution is directed to  be  proceeded  only under Section 304-A of  I.P.C.   and Section  39  of the Indian Electricity Act.  Briefly  stated the  facts are as follows:  2nd Respondent was possessing  a field  by the side of Shankar river.  2nd Respondent used to take  water  from  the  river to his  field  for  irrigation purposes.   2nd Respondent did not have electric connection. It  is claimed by the prosecution that he was taking illegal electric connection.  On 2nd May, 1999 a boy, named Santosh, who  was aged about 11 years, died due to electric shock  by coming  in  contact  with the live wire  through  which  2nd Respondent  was illegally taking electric connection.   Some persons  have given statements that the boy was swimming  in the  river  and the wire accidentally broke and fell in  the water  resulting  in  the boy being electrocuted.   On  this basis,  by the impugned Order prosecution is directed to  be proceeded  with  only for offences under Section 304  I.P.C. and  Section 39 of the Indian Electricity Act.  However, two eye witnesses, by name Haribai aged about 12 and Sandhya bai aged  about  7, have given statement to the police that  2nd Respondent  had  called the deceased Santosh to him and  had given  electric shock to the deceased on his chest and other parts of the body with the help of other accused.  The story given  by  the  two  eye witnesses is  that  thereafter  2nd Respondent  and other Accused have thrown the body into  the river  along  with the live wire.  It must be  mentioned  at this  stage that 5 burn injuries have been found on the dead body.   The  Trial  Court after considering  the  facts  and material framed charges under Sections 302 and 304 of I.P.C.@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ and  Section  39  of the Indian Electricity Act.   The  High@@ JJJ Court,  in  Criminal  Revision, by the  impugned  Order  has proceeded  to disbelieve the evidence of the eye  witnesses. The  High Court has noted that, at this stage, the  evidence

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was  not  to  be weighed by the Court.  But the  High  Court holds that the Court could still assess the improbability or absurdity  of the statement of the eye witnesses.  The  High Court holds that the statements of the two witnesses Sandhya bai  and  Hari  bai were so absurd and  improbable  that  no prudent person could ever reach a just conclusion that there was sufficient ground for proceeding against the accused for offences  under Section 302 or Section 304 of the I.P.C.  In our  view, the High Court has committed a patent error.   As noted  by  the High Court itself, at this stage, it was  not open  for the Court to weigh or assess the evidence.  It was not  possible  for  the Court, at this stage, to come  to  a conclusion  that  this  evidence was  absurd  or  inherently improbable.   Prima  facie  at  least the  5  burn  injuries support the case that the boy was not just electrocuted by a live  wire  falling in the river in which he  was  swimming. They  prima facie suggest direct contact with the live wire. In  this  view  of the matter, we are of the view  that  the Order  of  the High Court cannot be sustained and it is  set aside.   The Appeal is accordingly allowed.  The Trial Court is  directed  to  proceed  with the trial on  the  basis  of charges framed by it.