Delhi District Court
State vs Mahesh Chand Aggarwal on 29 August, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH-WEST, DWARKA COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 165/2015
PS Palam Village
U/S : 338 Indian Penal Code, 1860
State V/s Mahesh Chand Aggarwal
Cr.C No. : 427752/2016
CNR No. : DLSW02-004934-2016
Date of Institution : 04.01.2016
Name of complainant : SI Raghuveer
PS Palam Village, New Delhi
Name of accused, parentage and address : Mahesh Chand Aggarwal
S/o Late Gyarshi Lal
R/o WZ-306, Gali No.7,
Sadh Nagar Palam Colony,
New Delhi
Offence complained off : 338 IPC
Plea of accused : Not guilty
Final order : Aquitted
Date of Judgment : 29.08.2022
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Argued by: Sh. Manish Sharma, Ld. APP for the State.
Mr. Kuldeep Singh, Ld. Counsel for accused
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JUDGMENT
FIR No.165 of 2015; P.S. Palam Village Pages 1 of 8 State v. Mahesh Chand Aggarwal
1. The SHO, Police Station Palam Village has presented this charge-sheet against above named accused for initiation of trial under Section 338 IPC.
2. The prosecution story is that on 19.03.2015 DD No.28A was received that one labour has fallen from the roof and on receipt of the information, SI Raghuveer Singh reached C-111, Solanki Chowk, Sadh Nagar, New Delhi, however the informant was not found. SI Raghuveer noted that on the spot at C- 111 there is one shop of utensils and infront of it there were numerous pipes placed vertically which was close to an electric pole which had alot of uncovered live wires hanging. On coming to known that victim has been shifted to Ameda Hospital, SI Raghuveer alongwith Ct. Kunwar Pal went to Ameda Hospital and there they got MLC No. 08/15 of victim Atul. The victim was conscious however could not narrate the incident and the doctor informed SI Raghuvir that the victim was brought with history of electrocution while performing labour duty. SI went to the spot and found the vertically placed wires, however found no eye-witness. Based on the MLC, present FIR was registered under Section 337 IPC and during investigation it was revealed that the owner of the shop at C-111 was accused Mahesh Chand Aggarwal and he was getting finishing work done of his front side wall and as such had employed Atul as labourers to remove the pipes used as scattering/support to finish the work. SI Raghuvir made site plan and on 20.03.2015 recorded statement of victim Atul who stated that one contractor had brought him to C-111 where he met accused Mahesh and he asked him to remove the pipe scattering. Victim Atul further stated that he asked accused Mahesh to employ one more personnel as there were live wires close to the scattering, however accused refused and stated that said scattering was fixed by one person alone and only one person can remove it. Victim further stated that his wages were fixed and he started working when at about 3:30 PM, he lost his balance and one of the pipe touched live wire as a result of which he was electrocuted and fell to the ground FIR No.165 of 2015; P.S. Palam Village Pages 2 of 8 State v. Mahesh Chand Aggarwal sustaining injuries. SI Raghuvir then obtained medical opinion and since injuries were opined to be grievous, Section 338 IPC was added and after completing investigation, chargesheet was filed against the accused Mahesh. Copies of same were supplied to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.). Thereafter, formal notice was framed under Section 338 IPC against accused Mahesh on 10.03.2016, to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined four witnesses (herein after referred to as 'PW'). Thereafter, statement of accused u/s 313 CrPC was recorded on 31.01.2019. Accused opted to lead evidence in his defence and on his application under Section 315 CrPC, he was allowed to depose as defence witness.
4. PW3 Atul Kumar S/o Ranbir Singh reiterated the prosecution story in its entirety and specifically stated that he asked accused Mahesh to employ one more labourer for the work and risk involved but it was denied by accused. PW3 also stated that he asked to provide safety belt, helmet, shoes and gloves, etc, however same were refused and further stated that accused Mahesh assured him to take care of him in case of any accident. PW3 agreed he could identify the accused if shown to him, however the identity of the accused was not disputed by the defense as recorded in deposition dated 11.09.2017. PW3 was cross examined and he answered that he met contractor at labour chowk in Noida, but he did not his name. PW3 could not recall the time of the incident and admitted that there was no force or pressure upon him to do the said work, however voluntarily stated that accused told him that his day will be wasted if he does not do the work as agreed. PW3 could not recall if he has mentioned in his police statement about refusal by accused to provide safety equipment.
FIR No.165 of 2015; P.S. Palam Village Pages 3 of 8 State v. Mahesh Chand Aggarwal
5. PW1 HC Rajpal who was working as duty officer on 19.03.2015 and he deposed about receipt of original rukka Ex.PW1/A and identified his endorsement at Ex.PW1/B. PW1 also exhibited certificate under Section 65B Evidence Act. PW2 Ct. Kanwar Pal deposed that he was on emergency duty on 19.03.2015 and on receipt of DD no.28A Mark A1 he accompanied SI Raghuvir at the spot C-111, Solanki Chowk, Sadh Nagar where no eye-witness or complainant was found. PW2 further deposed that SI Raghuveer went to the hospital and he was left at the spot. PW2 further stated that after sometime SI Raghuveer came back to the spot and handed him the original rukka, which he took to the police station for registration of FIR. After sometime, he came back to the spot and handed over the copy of computerised FIR to SI Raghuveer at the spot. PW2 further stated that thereafter he went to hospital with SI Raghuveer and there statement of victim Atul was recorded and thereafter his statement was recorded by the IO. PW2 was cross examined and he answered that before leaving for hospital, IO remained with him for 10-15 minutes and during that period no documentation was done by the IO. PW3 further answered that IO came to the spot at 5 PM, he went to police station for registration of FIR at 7 PM and after registration of FIR he came back to spot at 7:30 PM. PW2 admitted that no public witness was present, but could not tell if he signed his statement recorded by the IO or if IO prepared site plan.
6. PW4 is the investigating officer SI Raghuveer who supported the prosecution case. PW4 exhibited rukka as Ex.PW4/A, site plan as Ex.PW4/B, arrest memo as Ex.PW4/C and copy of GPA, Agreement to Sell, receipt as Mark X (Colly). During cross examination, PW4 answered that DD No.28A was received at 3:40 PM and he reached spot within 15 minutes and then remained at the spot till 8 PM. PW4 admitted he didnot click any picture of the spot. PW4 also admitted that sketch of electric pole and wire in the site plan were not made and stated that he prepared the site plan on his own. PW4 admitted he was not FIR No.165 of 2015; P.S. Palam Village Pages 4 of 8 State v. Mahesh Chand Aggarwal present at the spot, no eye witness deposed about the incident and there was no documentary proof of employment of victim Atul by accused Mahesh.
7. To prove the MLC incharge in Ameda Hospital was summoned, however the said hospital was found to have been closed and since no name or stamp was present on the MLC, no doctor could be called in evidence to prove the MLC.
8. Statement of accused under Section 313 CrPC was recorded and accused persons defended that he has been falsely implicated in this case. Accused chose to lead defence evidence and examined himself wherein he sought to prove his alibi that he was not present at the spot, he didnot engage the victim and also that he was falsely implicated. During cross examination by the ld. APP for the State, accused as DW1 admitted that electricity pole is two shops away from his shop. DW1 pleaded ignorance if his son took victim Atul to the hospital.
9. This Court has thoughtfully considered the material on record and arguments advanced.
10. Now before proceeding further, it is true that MLC is not proved. Neither same was exhibited by the IO who obtained it nor by the doctor who prepared it. Infact the MLC does not even contain the name of the doctor or his official capacity to make the MLC. Only statement of PW3 is on record to prove show that he was electrocuted and fell to the ground. The MLC on record shows injuries as well as name of the victim of the same date as of incident, however the same were never proved by the prosecution. As regards the defence of alibi, same must fail. DW1 himself stated that on his shop mostly his son Sachin sits, however at times he also sits at the said shop. However, victim PW3 specifically mentioned his name who engaged him as labourer and further when PW3 assured to identify the accused, his identity was not disputed by the accused side, thus taking away valid opportunity for the prosecution to establish identity FIR No.165 of 2015; P.S. Palam Village Pages 5 of 8 State v. Mahesh Chand Aggarwal in the Court and the consequences of which is that accused cannot now be allowed to dispute identity.
11. To prove the present case, the prosecution was required to prove that the accused Mahesh accused grievous hurt to victim Atul by doing an act so rashly or negligently as to endanger human life or the personal safety. Thus the actus reus is causing grievous hurt and the mens rea is rash or negligent act. The actus reus has been deposed by PW3 that he was electrocuted and his falling to the ground as a result of pipes touching the live wire. The hurt caused being grievous or simple has not been proved by the prosecution as the MLC has not been exhibited. PW4 IO Raghuveer deposed to have inquired from Doctor who attended the victim, however no name of Doctor was disclosed or no statement under Section 161 CrPC of the doctor is on record. The very first ingredient of injury has thus not been established.
12. As regards the second ingredient i.e. mens rea. The prosecution has relied on the testimony of the victim PW3 that he was denied safety equipment by accused Mahesh on assurance that he would not get any work that day if he does not do the work given by accused Mahesh. PW3 during cross examination however stated that he was no pressurised to do the work. PW3 further stated that he did not know if the above statement was made before the police. Defense has taken this testimony to argue that victim PW3 made material improvement in his statement as no such fact of refusal of safety equipment was mentioned by the victim before police and it was only stated in Court. Further, defense has extensively relied on the 'volunti non fit injuria' maxim, that victim at him own free will accepted to perform the task, however there was no coercion or pressure on victim to perform the task.
FIR No.165 of 2015; P.S. Palam Village Pages 6 of 8 State v. Mahesh Chand Aggarwal
13. Reliance is placed on judgment passed by the Hon'ble High Court of Delhi in Abdul Kalam v. State, 2006 SCC OnLine Del 526 : 2006 Cri LJ 3071 wherein it was held that -
"5. A reading of the said section would clearly indicate that there must be some act done by the accused and that act must be done so rashly or negligently as to endanger human life or the personal safety of others. The petitioner had merely engaged the services of the said Mohd Shamshad for carrying out plastering work in residential premises. Apart from this, he did not do any act which could be regarded as rash or negligent so as to endanger human life. Therefore, in my opinion, the ingredients of Section 338 are not made out even if the statement of the said Mohd Shamshad is taking to be entirely true and correct. There is no nexus between the petitioner engaging the services of the injured and the injury being caused to him. The petitioner had no hand in setting up the scaffolding."
14. In view of the above discussion, there is neither any act or omission by the accused Mahesh which could be said to be rash and negligent to endanger human life. Further, there is no public witness examined and even the actus reus essential to prove the allegation is not established.
15. There is greater burden of proof on the prosecution and any lacunae or doubt in the case, surely benefits the accused. The accused only has to cast a little shadow of doubt in the prosecution case and he deserves acquittal for lack of evidence.
16. It is the basic canon of criminal jurisprudence that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be FIR No.165 of 2015; P.S. Palam Village Pages 7 of 8 State v. Mahesh Chand Aggarwal presumed innocent until proved guilty. The burden is not just establishing pre- ponderence of probabilities but to establish the guilt of the accused beyond reasonable doubts. The prosecution is under bounden duty to prove the case by leading cogent, convincing and reliable evidence. The accused is entitled to any benefit of doubt in the prosecution version. In the present case, the prosecution has failed to actus reus as well as mens rea required to be proved to bring home the allegation beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof. It is unflinchingly concluded that the prosecution has miserably failed to prove the case against the accused persons and therefore, the accused are entitled to be exonerated.
ORDER: ACQUITTED
17. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused persons, who are entitled to be exonerated of the charge against them in the present case. Accordingly, accused Mahesh Chand Aggarwal are hereby acquitted of the offence punishable under Section 338 IPC.
Announced in Open Court (Paras Dalal)
on this August 29, 2022 MM -01, South West
Dwarka Court, New Delhi
FIR No.165 of 2015; P.S. Palam Village Pages 8 of 8 State v. Mahesh Chand Aggarwal