IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 673 of 1996 Judgment reserved on: 14.05.2010 Date of decision: 17.06.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Romesh Garg and others. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 Yes. ____________________________________________________________ For the appellant: Mr. P.M. Negi, Deputy Advocate General. For the respondents: Mr. Dinesh Kumar Sharma, Advocate. ____________________________________________________________ V.K. Sharma, J . The state is in appeal against the acquittal of the respondents, who shall hereinafter be referred to as the accused (denoted as 'A1', 'A2', 'A3', and so on and so forth), pursuant to their trial for the offences under Section 36 of the H.P. Aerial Ropeways Act, 1968 ('the Act') and Sections 338 and 304-A of the Indian Penal Code by the learned Sessions Judge, Solan, vide the impugned judgment dated 05.06.1996. 2. Brief facts of the case may be stated thus. The Hotel Timber Trail is situated on National Highway number 22 at Parwanu, District Solan (H.P.). The hotel is in two parts. One 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... part of the hotel and restaurant named 'Timber Trail Resorts' is situate across Kaushlya rivulet. There is no road to the Timber Trail Resorts across the hillock above Kaushlya rivulet known as Bansar Hill. The two wings of the hotel are connected by aerial ropeway which was commissioned on April 15, 1986 with the sanction and approval of the Government of Himachal Pradesh. There were two cabins in the aerial ropeway (one each side) for transporting the tourists or customers desirous of going across the hillock to Timber Trail Resorts / heights. 3. Eleven tourists/passengers including one child alongwith one attendant, Shri Gulam Hussain, boarded the cabin car on 13th October, 1992, at 3:30 P.M. for going to the Timber Trail Resorts. The tourists were Shri Devashish Khatri, Shri Devinder Singh Komal, his wife Smt. Gurprit Komal, Smt. Sonia Chhabra, her husband Shri Sanjiv Chhabra, Smt. Harmesh Kaur, her husband Shri Harit Bajaj, Smt. Malti Tondon, her husband Shri Pankaj Tondon and the child. 4. The Cabin car took of from Hotel Timber Trail at 3:30 P.M.. When it reached on the top of the hillock both the haulage wires of the ropeway snapped. The cabin car slided back towards Timber Trail Hotel. It halted over the rivulet. It remained suspended in the air with the passengers/tourists waiting to be rescued. The cabin remained suspended in the air for about 42 hours with all the tourists stranded inside. The passengers could not be rescued till rescue operation was launched with the help of ...3... Army requisitioned from Chandimandir. The tourists were rescued finally on 15.10.1992 by using air force helicopter. 5. The cabin attendant, Shri Gulam Hussain and one of the tourists/passengers, Shri Davashish Khatri fell down from the cabin car. Whereas the former died, the latter suffered grievous injury. The injured was taken to P.G.I. Chandigarh for treatment. 6. The accident was reported to the police at P.S. Parwanu on the basis of which FIR No. 78/92, dated 13.10.1992 was registered. 7. It was revealed during investigation that the mishap was on account of the negligence on the part of the accused, namely Romesh Garg, Prem Dass Kainth, General Manager, Kulwant Singh, Maintenance Assistant, Gulam Mohammad, Ropeway Mechanic, Bhag singh, Welder, Jwala Datt, Darshan Singh, Raj Kumar and Harish Chand as they did not get the twin hauling ropes of the aerial ropeway tested and checked after 15.4.1989 from any reputed and authorized company. Besides this, in the year 1990-91, the management of the Timber Trail Resorts got transported besides tourists/passengers, steel, cement, sand and concrete for carrying out building construction work at the Timber Trail heights. The management of Timber Trail Resorts had used substandard haulage ropes in the aerial ropeway which also contributed to the taking place of the mishap. 8. On completion of investigation, the accused were sent up to face trial. On being charged, they did not plead guilty and ...4... claimed to be tried. The prosecution evidence followed. It has examined as many as thirty witnesses. 9. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein they pleaded that they are innocent and have been falsely implicated in this case. However, they did not lead any evidence in defence. 10. After hearing the parties, the learned trial court proceeded to acquit all the accused, as already noticed. 11. We have heard the learned Deputy Advocate General for the appellant-State, the learned counsel for the respondents- accused and perused the record. 12. Whereas, the State has laid challenge against the impugned judgment dated 05.06.1996 on two fold grounds, firstly, that the learned trial court has not properly appreciated the provisions of Section 36 of the Act and secondly, the prosecution evidence has been wrongly rejected, the accused have supported the same. 13. In order to appreciate the first contention raised on behalf of the State, it shall be appropriate to notice the provisions of Section 35 of the Act being the substantive-cum-penal provision and thereafter Section 36 of the Act as the latter provision is itself based on the former, though graver in nature. “35. Unlawfully interfering with aerial ropeways. - If any person, without lawful excuse, the burden of proving which shall lie upon him, willfully does any of the following things, namely : - ...5... (a) interferes with, removes or alters any part of an aerial ropeway or of the works connected therewith; (b) does anything in such manner as to obstruct any carrier traveling on an aerial ropeway; (c) attempts to do or abets within the meaning of the Indian Penal Code, 1860 (Central Act 45 of 1860) the doing of anything mentioned in clause (a) or clause (b); he shall, without prejudice to any other remedy which may be obtained against him an a civil court, be punishable with fine which may extended to two hundred rupees. 36. Punishments for acts or attempts tending to endanger safety of persons traveling or being upon aerial ropeways – If any person does anything mentioned in clause (a), clause (b) or clause (c) of Section 35 or does, attempts to do, or abets, withing the meaning of the Indian Penal code, 1860 (Central Act 45 of 1860), the doing of any other act or thing in relation to an aerial ropeway with intend, or with knowledge that he is likely to endanger the safety of any person traveling or being upon the aerial ropeway, he shall be punishable with imprisonment for a term which may extend to fourteen years.” 14. A bare perusal of Section 36 of the Act would go to show that it comprises of two parts. The first part relates to the eventualities visualized under sub-clauses (a), (b) and (c) of Section 35 of the Act, none of which is attracted in the facts and circumstances of the present case. Even as per prosecution, there is no allegation that the accused 'interfered with, removed or altered any part of the aerial ropeway or of the works connected ...6... therewith; did anything in such a manner as to obstruct any carrier traveling on the ropeway or attempted to do or abet within the meaning of the Indian Penal Code, the doing of anything mentioned in clause (a) or clause (b) of Section 35 of the Act.' The second part of Section 36 of the Act relates to 'any person doing, attempting to do, or abetting, within the meaning of the Indian Penal Code, the doing of any other act or thing in relation to an aerial ropeway with intent, or with knowledge that he is likely to endanger the safety of any person traveling or being upon the aerial ropeway' (emphasis supplied). Apparently, the present case falls within the ambit of the second part of Section 36 of the Act, which refers to 'with intent, or with knowledge'. Thus the act falling within the mischief of second part of Section 36 of the Act can either be intentional or within the knowledge of the offender. 15. The natural corollary of the above discussion is that the gravamen of charge against the accused under Section 36 of the Act was essentially with reference to 'doing, attempting to do or abetting, within the meaning of the Indian Penal Code, 1860 (Central Act 45 of 1860), the doing of any other act or thing in relation to an aerial ropeway with intent, or with knowledge that they were likely to endanger the safety of any person traveling or being upon the aerial ropeway'. Such 'other act or thing' in the facts and circumstances of the present case can be construed only to mean that as per prosecution, the accused were criminally negligent in maintaining the ropeway in accordance with the ...7... prescribed standards and thus the 'knowledge' ingredient of the second part of Section 36 of the Act can be ascribed to them. 16. However, the learned trial court, wittingly or unwittingly, over emphasized the 'intention' ingredient of the second part of the provision embodied under Section 36 of the Act and forgot the other ingredient of the same under which 'knowledge' can be ascribed to the offender. To this extent the first contention raised on behalf of the State has force in it. However, for the reasons to be recorded hereinafter this aspect of the matter shall have no bearing on the overall result of this appeal. 17. There is no denying the fact that the accident under reference had occurred owing to snapping of the haulage rope of the cabin car of the aerial ropeway. However, the evidence on record would also go to show that the cabin attendant, Shri Gulam Hussain and Shri Devashish Khatri, one of the tourists/passengers had fell down/jumped from the cabin car out of panic after its door was opened by the former and as a result whereas he had died, the latter suffered grievous injury. This aspect of the matter is also born out of questions No. 6/7/8 of the respective statements of the accused, recorded under Section 313 Cr.P.C., which they have admitted to be correct. PW-28 Dr. Radha Chopra, has proved the postmortem report, Ex. PA, in respect of deceased Gulam Hussain. However, neither the injured, Devashish Khatri has appeared as a witness nor any medical expert has been examined to prove the injury(s) said to have been suffered by him in the ...8... accident. 18. Now, we shall advert to the second contention raised by the State regarding wrongful rejection of the prosecution evidence by the learned trial court. The evidence adduced by the prosecution to bring home guilt against the accused comprises of three sets, viz., 1. tourists/passengers traveling in the ropeway at the relevant time, 2. residents of nearby villages and 3. experts, which shall be discussed hereinafter one by one. 1. Tourists/Passengers traveling in the ropeway at the relevant time. 19. Out of the tourists/passengers traveling in the cabin car at the time of the accident, the prosecution has examined PW-2 Smt. Sonia Chhabra, PW-3 Shri Sanjeev Chhabra, PW-5 Shri Harit Bajaj and PW-30 Shri Pankaj Tandon. They have stated about the factual matrix about the accident. In the estimation of PW-2, Smt. Sonia Chhabra, the accident had occurred due to the following reason: “Since the rope wire was broken, so I think that no proper arrangements were made by the management earlier for the maintenance of the aerial rope way. Had the proper maintenance been made, the accident could have been averted.” 20. Similarly, PW-3, Shri Sanjeev Chhabra, has the following version to state: “According to me the cause of the mishap can be some technical/mechanical defect in the operation of the trolley.” 21. The cause of accident has been stated thus by PW-5, Shri Harit Bajaj thus: ...9.... “The accident took place as the trolley has never been designed for carrying passengers and there were no safety measures and even the water which was in the cable car was so stale that after consuming the same one lady whose name I do not remember fell ill immediately and had loose motions and vomitting.” 22. According to PW-30, Shri Pankaj Tandon: “the incident did take place on account of negligence of the management of the hotel." 23. A combined and harmonious reading of the depositions of the aforesaid eye-witnesses would go to show that the same, insofar as these relate to the cause of the accident, are based on their personal opinion and thus in a way hypothetical in nature and cannot as such be made the sole basis for returning a finding of guilt against the accused. It being so, their testimonies have been appreciated by the learned trial court in the right perspective and no fault can be found with the same. 2. Residents of nearby villages. 24. One of the allegations levelled by the prosecution to fasten guilt against the accused is that apart from transporting tourists/passengers in the ropeway, the management of Timber Trail Resorts have been carrying building materials therein, which greatly contributed to the happening of the mishap. To substantiate this allegation, the prosecution has examined PW-9 Shri Hardev Singh, President, Gram Panchayat Banasar, PW-10 Shri Hari Krishan, PW-11 Shri Kiru Ram and PW-14 Shri Hari Ram. All of them except PW-11 Shri Kiru Ram turned hostile and did not support the prosecution version to this effect. They were ...10... permitted to be cross-examined by the learned Public Prosecutor, but nothing tangible could be extracted out of them to substantiate the above allegation even during cross-examination, rather PW-9 Shri Hardev Singh and PW-14 Shri Hari Ram admitted during cross-examination on behalf of the defence that a separate aerial ropeway has been installed by the management of Timber Trail Resorts for carriage of goods. 25. The sole surviving testimony of PW-11 Shri Kiru Ram with regard to transportation of building materials in the ropeway by the management of Timber Trail Resorts cannot be safely taken on its face value for the reason that the same is based on hearsay, as he has categorically admitted in the opening lines of cross- examination that “I have heard from villagers about carrying of building material in passenger ropeway.” The further cross- examination would go to show that earlier he was also an employee of Timber Trail Resorts. Though he has feigned ignorance “whether allegation of theft was levelled against me by TTR Management and on the basis of the same I had been terminated from services”, yet he has admitted that “it is correct to suggest that my son was employed at TTR Heights who was removed from services”, albeit the fact that he has volunteered to state that “there was no dispute”. 3. Experts. 26. In the category of experts the prosecution has examined PW-12 Mr. F. Kropivnik, a professional Ropeway ...11... Designer, PW-17 Shri R.P. Chakroborty, PW-18 Shri S.P. Chawdhari and PW-19 Shri J.C. Gosh, Ex-scientist/scientists from Central Mining Research Institute, Dhanbad. PW-23 Shri R.S. Gupta, being the Secretary to the Enquiry Officer, was examined to prove the enquiry report, Ex. PW-28/A, submitted by Shri P.T. Wangdi, Financial Commissioner-cum-Secretary to the Government of Himachal Pradesh, Shimla, who was appointed to enquire into the accident under reference. PW-29 Shri R.C. Sharma, the then Superintendent Engineer(Mechanical) Circle H.P.P.W.D. Shimla was appointed by the State Government to provide technical assistance to the Enquiry Officer, Shri P.T. Wangdi. The learned trial court has dealt with the evidence of the experts in quiet detail vide paras 25 to 27 of the impugned judgment dated 05.06.1996. A combined and harmonious reading of the depositions of the expert witnesses and the reports submitted by them and the Enquiry Officer, Shri P.T. Wangdi, would go to show that whereas neither the report Ex. PL submitted by PW-12 Mr. R. Kropivnik nor his testimony is conclusive in nature, report Ex. PL, submitted by Shri P.T. Wangdi, which concludes at para 71 of the report that “Therefore, it can perhaps be concluded that the mishap was as a result of various omissions and commissions on the part of above referred agencies” can also not be taken to be indicting the accused and the accused alone for the above mishap. A perusal of report, Ex. PP, submitted by the Central Mining Research Station, Dhanbad, also can not be said to be conclusive in nature ...12... to fasten criminal negligence against the accused in maintaining the ropeway. 27. Above all, PW-1 Mr. Gulam Navi, an attendant attached to the ropeway at the relevant time, has stated as under in the last lines of cross-examination: “The rope-ways are thoroughly checked by the management daily under the supervision of Shri Sood who is an Engineer. The rope ways and cable cars are daily checked mechanically from 7 a.m. To 9 a.m.” 28. In view of the above discussion, the inescapable conclusion that emerges is that the prosecution was not able to establish any of the offences alleged against the accused under Section 36 of the H.P. Aerial Ropeways Act, 1968 and Sections 338 and 304-A of the Indian Penal Code beyond reasonable doubt, as held by the learned trial court, though on somewhat different premises with which we do not entirely agree as already indicated. Consequently, the appeal fails and is accordingly dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 17th June, 2010 (virender)