Delhi District Court
State vs . : Roshan Lal on 3 April, 2012
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN
MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS, NEW
DELHI
State Vs. : Roshan Lal
FIR No : 175/01
U/s : 304A IPC
PS : Okhla Industrial Area
Date of Institution: 24.04.2002
Date of Judgment reserved for: 03.04.2012
Date of Judgment: 03.04.2012
Brief Details of the Case
A. Sl. no. of the case 253/2/02
B. Offence complained of
or proved U/s 304A IPC
C. Date of Offence 28.03.2001
D. Name of the complainant Sh Raju Prasad
s/o Sh Kishan Thakur
r/oJhuggi no665,
Mazdoor Kalyan Camp,
Okhla PhII,New Delhi
E. Name of the accused Roshan Lal
s/o Sh Ambika
r/o Jhuggi No S31/138,
Mazdoor Kalyan Camp,
Okhla PhII, New Delhi
F. Plea of the accused Pleaded not guilty.
G. Final order Convicted
H. Date of Order 03.04.2012
Judgment
The case of the prosecution is that on 28.03.2001, at around
5 pm, accused Roshan Lal @ Munshi acted in a rash and negligent
manner by omitting to take proper care and precautions with naked live
FIR no. 175/01 1/13
electric wires lying in front of his jhuggi number W4, Okhla Industrial
Area (OIA) PhaseII, New Delhi. His said omission resulted in death of a
five year boy namely Munna, who accidentally touched the wire while
playing and got electrocuted.
Brief Facts as unfolded during the trial
2. The accused Roshan Lal was an authorised single point contractor appointed by BSES Rajdhani Power Limited for supplying electricity at Majdoor Kalyan Camp, OIA PhII, New Delhi. He was transmitting/supplying the electricity at the Camp from his jhuggi bearing number S31/138, Majdoor Kalyan Camp, Okhla PhII, New Delhi. He had purchased another jhuggi adjacent to his premises where he had installed an electric motor for cutting thermocol. The machine was connected with the main connection installed at jhuggi no S31/138. The connecting wires were not insulated and certain live naked wires were lying in front of his jhuggi. On the abovesaid date and time, a boy Munna Kumar, while playing in front of the jhuggi, accidentally touched a live wire and died on the spot after receiving an electric shock. The matter was reported to the police and the present FIR bearing no 175/01 under section 304A IPC was registered at PSOIA.
3. The necessary investigation was carried out and requisite documentation was done. The postmortem was conducted at AIIMS hospital and the statement of witnesses were recorded. The spot FIR no. 175/01 2/13 inspection was carried out by an electrical inspector and on completion of the investigation, chargesheet was put to the Court. The copies of the chargesheet were supplied to the accused and notice under Section 304A IPC was framed against him to which he pleaded 'not guilty' and claim trial.
Witnesses Examined
4. In order to establish the charge, prosecution examined eight witnesses. The brief gist of their testimony is as under:
PW1 HC Ombir Singh (Duty Officer) has deposed about the registration of the FIR. He mentioned that on 29.032001, at around 5.20 pm, Ct Sibin T.M. brought the rukka sent by ASI Karambir Singh and the present FIR was registered. The FIR is Ex PW1/A. PW2 Dr T.Milo (Senior Department of Forensic) has deposed that he conducted the postmortem on the dead body of Munna Kumar. His report is Ex PW2/A wherein he has opined that Munna Kumar died to cardiac failure caused by electrocution.
PW3 Ct Vivekanand (DD Writer) has mentioned that information about the incident was received and recorded by him as DD number 22. The copy of the DD entry is Ex PW3/A. PW4 Raju Prasad (Father of the deceased/Eye Witness) has deposed that accused Roshan Lal was his neighbourer. He mentioned that various live electricity wires were lying in front of the jhuggi of FIR no. 175/01 3/13 Roshan Lal. He stated that he had requested the accused to take necessary precautions but he did not pay any heed. He mentioned that accused had installed an electric machine in front of his jhuggi for cutting thermocol and the connecting wires were lying naked. He has given a detailed account of the incident. He stated that his son Munna Kumar, while playing in the street, accidentally touched a naked wire and sustained electric shock. He has deposed that his son died on the spot itself. He stated in his cross examination that he used to work in the night shift and at the time of the incident, he was present at the spot. That at the time of incident, accused Roshan Lal was operating the machine with the help of three other workers. That the width of the street was around 68 feet and the length of the machine was 3 feet. That his statement was recorded by the police and site plan was prepared at his instance. That the jhuggi of Roshan Lal is filled with thermocol and the machine was installed outside the jhuggi. That the photographs of the spot were taken by the police officials.
PW5 Ct Sibin T M (Police Official, who reached the spot alongwith the IO) has mentioned that after reaching the spot, he saw that dead body of Munna Kumar was lying on the ground. He has mentioned about the investigation part. The site plan prepared by the IO is Ex PW4/B while the photographs of the spot are Ex P1 to P4. He stated in his cross examination that he remained at the spot for around FIR no. 175/01 4/13 34 hours. That he took the rukka to the police station and got the FIR registered. That public persons were found present at the spot but their names and addresses were not noted down by the IO.
PW6 S.K.Saxena (Assistant Vice President, BSES) has mentioned that accused Roshan Lal was appointed as an authorised single point contractor for supplying electricity at Majdoor Kalyan Camp. The certificate issued in this regard bearing his signature is Ex PW6/A. PW7 Amar Gulani (Assistant Electric Inspector) has mentioned that he visited the spot on 04.04.2001 and prepared the electrical inspection report. He stated that it was found during inspection that accused had installed a thermocol cutting machine in front of his jhuggi. He has given specifications of the machine and stated that it was kept on a wooden frame which was about 3 feet height. He has given a report that live metallic nails used as end terminals of the heating element on the machine were found exposed. He stated that supply to the machine was not being controlled by a linked switch or circuit breaker of the requisite capacity. His detailed report is Ex PW7/A. PW8 Sh Rajender Singh (Witness of dead body identification) has mentioned that he identified the dead body of his nephew Munna Kumar vide identification statement Ex PW8/A.
5. Accused in his statement under Section 313 Cr. PC pleaded innocence and claimed that he has been falsely implicated. He submitted FIR no. 175/01 5/13 that although he had installed a thermocol cutting machine in front of his jhugi but he was not negligent. He admitted that Munna Kumar died on the spot after receiving an electric shock. He mentioned that electricity wires connected with the machine were properly insulated. He has put forward a defence that death of Munna Kumar was an accident and he was not responsible for the same.
Arguments
6. I have heard the Ld. APP for State and Ld. Defence Counsel and have carefully gone through the entire material available on record.
7. Ld. APP has contended that prosecution has proved its case to the hilt. He contended that testimony of the eye witness is fully convincing and there is no reason to doubt his version. He argued that evidence on record has established that accused ommitted to take necessary precaution with electricity wires installed at his premises and the accident was the direct outcome of his said omission.
8. On the other hand, Ld. Defence Counsel has argued that testimony of the eye witnesses is not reliable. He has argued that there are material discrepancies in the testimony of the eye witness and the police officials. He has argued that death of Munna Kumar was a pure and simple accident. He stated that there is no evidence to establish negligence of accused and there is no scope of raising any presumption about negligent merely because a person has died.
FIR no. 175/01 6/13
9. I have considered the entire evidence in the light of aforesaid contentions.
Brief Reasons for the Decision
10. In order to establish the charge under Section 304A IPC, the prosecution has to establish in the first place that accused acted in a rash or negligent manner. Secondly, it has to establish that the said act or the said negligence on the part of accused has resulted in an accident and thirdly, it has to establish that the said accident has caused death of a person. The proximity between the alleged negligence and the death of a victim is to be established by leading cogent evidence. Let us examine the record to see whether all these facts have been proved?
11. The accident and the resultant death of Munna Kumar is not disputed. The accused has admitted the said fact in his statement recorded under Section 313 Cr PC. He has admitted the accident but stated that he was not responsible. He mentioned that it was a pure and simple accident. Let us examine the evidence to see whether rash or negligent act of the accused has been established. The evidence on record primarily constitutes of the testimony of complainant Raju Prasad (PW4) and electrical inspection report Ex PW7/A. The prosecution has also relied upon the site plan Ex PW4/B purportedly made by the IO/ASI Karambir Singh at the instance of the complainant. The photographs of the spot are Ex P1 to P4.
FIR no. 175/01 7/13
12. Let us peruse the testimony of Raju Prasad. He has given a detailed account of the incident. He mentioned that he was immediate neighbourer of the accused. He stated that accused had installed an electrical machine in front of his jhuggi and he was using it for cutting thermocol. He stated that the connecting wires of the machine were naked and his son touched the naked wires while playing in the street. He has made referrence to his statement which was recorded by the police. He stated that police officials recorded his statement Ex PW4/A, which bears a signature at point X. He mentioned that site plan Ex PW4/B was prepared by the IO at his instance. He has deposed that he had repeatedly requested the accused to remove the naked electric wires but he did not pay any heed.
13. Raju Prasad (PW4) has given the specification of the machine which was installed by the accused outside his jhuggi. He stated that the height of the machine was around 3 feets and the length was also of the same dimension. He stated that width of the street was around 68 feet. The record shows that Raju Prasad has been cross examined at length by the Ld defence counsel but his testimony about the manner in which the accident took place has remained unshaken. Rather, he has reiterated in his cross examination that accused had connected the thermocol cutting machine with naked electric wires. Although, there are some minor discrepancies in his statement but the same are inconsequential. His FIR no. 175/01 8/13 testimony about the naked live wires and installation of the machine in the street has remained unimpeached. His testimony finds support and corroboration from the electrical inspection report.
14. Sh Amar Guliani (PW7) has mentioned that he visited the spot on 04.04.2001 and carried out the site inspection. He has supported the observations made by him in the inspection report Ex PW7/A. He stated that during the inspection, it was found that terminals of the machine were exposed and no switch was provided to control the supply of electricity. The witness has not been cross examined on these aspects. His testimony about the exposed terminals and the absence of any switch to control the supply of electricity has gone unrebutted. The observations made by the witness during the site inspection demonstrates that accused had not taken any precautions while connecting electricity wires with thermocol cutting machine.
15. It has been proved on record that accused was an authorised single point contractor who has appointed by BSES for supplying electricity at Majdoor Kalyan Camp. Sh S.K.Saxena, Assistant Vice President has stated so. The certificate of authorisation is Ex PW6/A. The accused has not disputed the said fact. The photographs of the spot are Ex P1 to P4. Raju Prasad has mentioned that police officials arrived at the site and took photographs. Ct Sibin T. M (PW5) has also mentioned about the said photographs. The accused in his statement FIR no. 175/01 9/13 recorded under section 313 Cr PC admitted that the photographs Ex P1 to P4 were taken by the IO. The said photographs give an idea about the manner in which the electricity wires were connected from the main source. It can be seen very clearly that terminals of the wires were completely exposed and the wires have not been insulated. The wires were lying scattered with exposed terminals.
16. Negligence and rashness are mandatory elements of an offence under section 304 A IPC. Culpable negligence lies in the failure to exercise reasonable and proper care and caution incumbent upon a person in a given set of circumstances. Whereas rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that they will not. A rash and negligent act is a reckless act which means 'regardless' or heedless of the possible harmful consequences of one 's acts. The question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case.
17. In the judgment titled as "Rathnashalvan Vs State of Karnataka reported as 2007 (3) SCC 474 AIR 2007 SC 1064" the Hon'ble Supreme Court held:
"Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and FIR no. 175/01 10/13 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"
18. Judicial precedents have also described a 'rash and negligent ' as a ' reckless ' act. In the judgment titled as "Kuldeep Singh State of Himachal Pradesh" reported as 2008 CRI L J 3932 (SC) the Hon'ble Supreme Court quoted R.V.Caldwell (1981) 1 AII ER 961, wherein it has been observed that:
" Neverthless, to decide whether someone has been ' reckless ' whether harmful consequences of a par ticular kind will result from his act, as distinguished from his actually intending such harmful con sequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent in dividual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility: nor, if the risk of the harmful consequences was so light that the ordinary prudent individual on due consid eration of the risk would not be deterred from treat ing it as negligible, could the accused be described as reckless in in its ordinary sense, if, having con sidered the risk, he decided to ignore it. (In this con nection the gravity of the possible harmful con FIR no. 175/01 11/13 sequences would be an important factor. To en danger life must be one for the most grave)...."
19. Adverting to the fact of the present case, PW4 has mentioned that accused was using naked electricity wires for supplying electricity to thermocol cutting machine installed by him in front of his jhuggi. The accused was appointed as a contractor for supplying electricity to the area of Majdoor Kalyan Camp. The electrical inspection report demonstrates that accused has not taken any precautions for connecting the electricity wires from the main terminal. There is no calibrated instrument of definite precision which could give a clear arithmetical result so as to establish rashness or negligence. On facts of the present case, the accused had failed to take any precautions while connecting the electricity wires with his machine. It cannot be disputed that a person has to remain cautious while dealing with electric current. Every prudent man and for that matter even a lay man understands that in case, a live electric wire is lying naked then there is a clear risk that a person may touch the wire and receive an electric shock. The accused, who was an appointed contractor for supplying the electricity was well aware of the consequences of not taking proper precautions while transmitting electricity. Raju Prasad has mentioned that he had drawn the attention of accused towards naked wires of electricity but he did not pay any heed. The accused did not bother to take necessary precautions and resultantly, a child got electrocuted and died on the spot. This act of the FIR no. 175/01 12/13 accused was manifestly and indubitably fraught with rashness and negligence. The conduct of the accused does not appear to be the conduct of an ordinary prudent man.
20. The accused himself has not disputed the death of Munna Kumar. Dr T.Milo (PW2) has opined in post mortem report that deceased died because of cardiac failure caused by electrocution. Thus, the proximity between the death of Munna Kumar and the rash and negligent act of the accused stands established. The prosecution has successfully established the charge beyond reasonable doubt. Accordingly, the accused Roshan Lal stands convicted for committing an offence punishable under Section 304A IPC.
Announced in open Court (Sudhanshu Kaushik)
Dated 03.042012 Metropolitan Magistrate
Saket Courts, Delhi
FIR no. 175/01 13/13