Delhi District Court
State vs . on 25 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 77392/2016
Unique Case ID No. -: DLSH020015282012
FIR No. -: 11/2010
Police Station -: Harsh Vihar
Section(s) -: 287/288/304A IPC
In the matter of -
STATE
VS.
1.GORI SHANKAR S/o Attar Chand R/o H. No. D-203, Vivek Vihar, Delhi.
2. RAM BALI S/o Dineshwar Singh R/o H. No. 13, Gali no. 2, Tahirpur, Delhi.
.... Accused
1. Name of Complainant : Prem Prakash
2. Name of Accused persons : Gori Shankar and Ram Bali Offence complained of or
3. : Section 287/288/304A IPC proved
4. Plea of Accused : Not Guilty Date of commission of
5. : 15.01.2010 offence
6. Date of Filing of case : 05.10.2010
7. Date of Reserving Order : 23.08.2023
8. Date of Pronouncement : 25.08.2023
9. Final Order : Acquitted Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 1 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:36:44 +0530 Argued by -: Sh. Nadeem, Ld. APP for the State.
Sh. T. N. Puri, Ld. counsel for the accused Gori Shankar.
Sh. Vinesh Kumar, Ld. Counsel for accused Ram Bali.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
1. Briefly stated, the allegations of the prosecution are that on 15.01.2010, the complainant Prem Prakash was working as a supervisor in the factory of the accused Gori Shankar, where the work on aluminium scrap was being done. On that day, it is alleged that the accused Rambali was driving a crane which was doing the work of loading and unloading of aluminium bundles. It is alleged that there was a wall inside the factory, which was under huge pressure on account of stacking of the aluminium bundles by its side. On the fateful day, the driver of the crane had unloaded certain aluminium bundles by the side of the wall, due to which the wall fell, and a labour Suraj Mukhi, who was working on the other side of the wall, got buried under the debris, and lost her life. It is alleged that the accused owner Gori Shankar as well as the driver Ram Bali were informed about the fact that the wall is very weak and despite the same, no action was taken by the accused persons. As such, it is alleged that the accused committed the offences punishable under Section 287/304A of Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 11/2010 was registered at the Harsh Vihar Police Station, New Delhi.
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 2 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:36:52 +0530 taking cognizance of the offence, the accused were summoned to face trial.
3. On appearance of the accused persons, copy of the chargesheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding of a prima facie case, notice of accusation under Section 287/304 IPC was served upon the accused Ram Bali, being the driver of the crane and a separate notice under Section 288/304A IPC was served upon the accused Gori Shankar, being the owner of the factory.
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW 1 : Prem Prakash Singh (complainant) Nandji Upadhayay (husband of PW 2 :
deceased)
SI Manohar Lal Dhyani (Mechanical
PW 3 :
Inspector)
PW 4 : SI Jai Bhagwan (IO)
PW 5 : SI Om Pal Singh (accompanied IO)
PW 6 : ASI Chander Bhan (formal)
PW 7 : Dr. Amit Srivastava (doctor)
DOCUMENTARY EVIDENCE
Mark A : Statement of complainant
Mark X : Statement
Mark X2 : Statement
Mark X3 : Statement
Mark P1 to P8 : Photographs
Ex. PW2/A : Post mortem request form
Mark X3 : Receiving memo
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.25
15:36:59 +0530
Ex. PW3/A : Mechanical inspection report
Mark A : Statement
Ex. PW4/A Site plan
Ex. PW4/B : Seizure memo
Ex. P1 : Photographs
Ex.PW4/C and
: Arrest memos
Ex. PW4/D
Ex.PW4/E and
: Personal search Memos
Ex. PW4/F
Ex. PW 4/G : Handing over memos
Ex. PW4/H Seizure memo
Ex. PW4/D1 : Statement
Ex. PW5/A : Documents
Ex. PW7/A : MLC no. C201/10
ADMITTED DOCUMENTS
Ex. A1 : PM report
Ex. A1 : FIR
5. Prem Prakash (PW1) is the complainant, who has deposed that on the date of incident, he was working as a supervisor in the factory of the accused Gori Shankar. He stated that the bundles of aluminium used to be loaded and unloaded in the factory and weight of the bundles used to vary from hundred kilograms to 1 tonne. He deposed that the crane was being used to load and unload the bundles. He deposed that on the date of incident i.e., 15.01.2010, a crane of accused Ram Bali was being used to unload the aluminium in the factory of the accused. The deceased Suraj Mukhi used to pick scrap from outside the factory and she was not working in the factory. He deposed that the crane hit the middle wall with great force and the walls collapsed. Since the deceased Suraj Mukhi was picking scrap from the other side of the wall, she got injured on Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 4 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:37:08 +0530 account of the collapse of the wall and thereafter, she was taken to GTB Hospital, where she was declared dead. The witness deposed that his statement was not recorded by the police and his signatures were obtained by the IO on certain blank papers. He identified the accused persons from the dock.
5.1. In cross-examination, Prem Prakash (PW1) denied the suggestion of the Ld. APP that he had informed the accused that the wall was very weak and it could not bear the pressure of the heavy load. He stated that he had asked the accused Ram Bali as to why he was driving the crane very fast. He stated that the wall was cemented and was very strong, being constructed by cement. He accepted the suggestions of the Ld. APP that the crane was being driven negligently by the accused Ram Bali, which resulted in the collapse. He denied the suggestion that the owner of the factory was also negligent. He denied the preparation of the site plan at his instance and did not identify the photos being shown to him. He also admitted in his cross-examination by the defence that the wall was a concrete wall and could not fall unless struck by force. He stated that the IO had forcibly obtained his signatures on some blank papers. He admitted that the deceased did not do any work in the godown and stated that there was no negligence on part of the owner of godown i.e. accused Gori Shankar. He admitted that the crane was being called on rent from outside.
6. SI Jai Bhagwan (PW4) is the IO in the present matter, who has stated that on 15.01.2010, he was posted at PS Harsh Vihar and was on emergency duty. He received a DD entry and went to the hospital, where he found out that the patient was brought dead to the Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 5 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:37:34 +0530 hospital. He met the eyewitness i.e. the complainant and recorded his statement. Thereafter, he deposed about the fact that he went back to the spot and found a broken wall as well as the crane. He enquired from the workers on the factory and then prepared the site plan. He deposed about seizure of the crane, arrest of the accused, getting the postmortem of the deceased conducted, getting the medical conducted, getting the mechanical inspection of the crane done etc. He identified the accused persons from dock. 6.1. In cross-examination, SI Jai Bhagwan (PW4) stated that he has not got his arrival and departure entry lodged on that day.
He stated that he did not meet any other public witness in the hospital except the complainant. He stated that he did not check the identity papers of the husband of the deceased. He stated that the crane was inside the factory and the wall of the factory collapsed from the inner side. He admitted that he did not take any documentary proof regarding the employment of the deceased in the factory of the accused. He stated that he did not record the statement of any worker in the factory. He admitted that the site plan does not mention the location of the aluminium bundles and he further admitted that he did not take any sample of the wall which collapsed. He could not depose whether the wall was cemented or not. He admitted that he did not collect any evidence regarding the fact that the complainant was working as a supervisor in the factory.
7. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
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CHAUDHARY Date: 2023.08.25
15:37:49 +0530
8. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against them, separate statements of the accused persons were recorded without oath under Section 281 read with Section 313 CrPC. In the statement, accused Ram Bali has stated that he used to work for Rampal prior to the year 2008 and then, was at his home till the year 2010. He stated that one day, Som Pal had called him and asked him to park the crane near the police station and when he did so, the police officials asked him to handover the documents of the crane and thereafter, he was falsely implicated in the in the present case. He denied his involvement in the incident. Similarly, accused Gori Shankar stated that he had no connection with the alleged death of the deceased and stated that she was not connected to his factory. He stated that he has been falsely implicated on the basis of the ulterior motives of the IO. He also stated that he does not wish to lead any defence witness.
9. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the learned APP for the State that all the ingredients of the offences are fulfilled in the present case. He has argued that the factum of incident is proved. Further, the eye- witness has deposed about the incident in detail and the other documentary evidence on record has corroborated the version of the prosecution witnesses. It is argued that the evidence of the complainant cannot be brushed off in its entirety. He contends that Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 7 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:37:58 +0530 the prosecution has proved the offences beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
11. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel for the accused Gori Shankar has argued that there is nothing on record against him and the offence under Section 288 IPC is even otherwise not attracted in this case. Learned counsel for the accused Ram Bali has argued that apart from the fact that the case of the prosecution suffers from various inconsistencies, there is nothing on record to prove the commission of the offences beyond reasonable doubt. As such, it is prayed that the accused be acquitted for the said offences.
ANALYSIS -
12. The accused has been charged for the offences negligent conduct with respect to machinery (S. 287 IPC), negligent conduct with respect to pulling down or repairing buildings (S. 288 IPC) and causing death by a rash or negligent act (S. 304A IPC) in the present case.
13. Thus, the gravamen of the offences under Section 287/288/304A IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 8 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:38:08 +0530 towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A 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. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and 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."
Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 9 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:38:23 +0530 ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries.
14. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
15. At the outset, it is noted that the present case has been registered on the statement of the complainant Prem Prakash (PW1). In the statement forming basis of the present FIR, Mark A, the com- plainant has stated that inside the factory of the accused Gori Shank- ar, there was a wall which was under pressure as aluminium bundles used to be stacked against it. He has narrated that he had informed the owner of the factory i.e. accused Gori Shankar as well as the driver of the crane i.e. accused Ram Bali regarding the fact that the wall was weak. With regard to the incident dated 15.01.2010, he has stated in his complaint, that on the date of incident, the driver of the crane had negligently stacked many bundles of aluminium against Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 10 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:38:33 +0530 the wall, and as a result, the wall fell upon the deceased Suraj Mukhi.
16. However, the version of the complainant PW1 is totally different before the Court. When he entered into the witness box, he deposed that on the date of incident, the work of unloading was be- ing done inside the factory. In his version before the court, he stated that on the date of incident, the work of unloading was being done. Regarding the incident, the version of the complainant is that the crane had hit the middle wall of the godown with a great force and the walls had collapsed. However, as noted above, this is not the version of the complainant regarding the incident, in the initial state- ment which is also the FIR. Further, the complainant has categoric- ally deposed that his statement was not recorded by the police and he has stated that his signatures were obtained on blank papers by the police officials.
17. Regarding the role of both the accused persons, the complainant has stated that there was no negligence of the factory owner Gori Shankar in the incident. On cross-examination by ac- cused Gori Shankar, he stated that the accused Gori Shankar has been falsely implicated by the IO. However, there is no explanation as to how the witness is aware about this fact. This prosecution wit- ness has deposed in favour of his employer, the accused Gori Shank- ar. Regarding the other accused, he stated that he had asked the ac- cused Ram Bali as to why he was driving the crane very fast. The witness denied the suggestion put to him that the wall inside the factory was very weak and it could not bear the pressure of heavy load. He denied informing either of the accused the said fact that the Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 11 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:38:41 +0530 wall was very weak. In his cross-examination, he stated that the wall was strong and constructed with cement. He also admitted the sug- gestion of the learned APP that the accused Ram Bali drove the crane negligently, which resulted in collapse of the wall.
18. However, it is seen that the version of the complainant before the Court is a material improvement of his version before the police in the FIR. There is no assertion in the FIR to the effect that the wall was damaged on account of an impact due to the crane hit- ting it. However, in his deposition before the Court, he has stated differently. There is no mention in his statement before the Court that the bundles of aluminium were being stacked against the wall on the date of incident. Therefore, the narration of the witness with regard to the incident cannot be relied upon beyond reasonable doubt. Further, it is observed that the crane, due to which the incid- ent had occurred, has not been identified by the complainant. He has not identified any of the photographs of the spot. Moreover, in view of the fact that the witness has stated that his signatures were ob- tained on blank papers by the IO, it would be unsafe to place reli- ance solely on his statement in the present matter.
19. No other witness has been examined by the prosecu- tion in order to prove the offence. In the testimony of PW1, it is mentioned that along with the accused Ram Bali, there was a con- ductor, Sardar, of the crane, who was present with him on the date of incident. Being the eye-witness, the said person would have been the best witness to corroborate the case of the prosecution. However, no such witness has been produced to the stand by the prosecution and there is no mention of any conductor in the whole investigation Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 12 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:38:49 +0530 done by the police. Further, it is pertinent to note that in his testi- mony, PW4 IO SI Jai Bhagwan has stated that when he reached the spot, he found a crane in question inside the factory premises, and the broken wall. He has deposed that he had found workers of the factory on the spot and had enquired from them. However, no other worker of the factory has been brought to the stand by the prosecu- tion. Further, in his cross-examination, the IO stated that he did not record statement of any other worker in the factory. He has specific- ally admitted that around 8 to 10 workers were working in the fact- ory on that day, while also admitting in the same breath that he did not examine any of the workers regarding the incident. No explana- tion was offered in this regard by the IO. PW5 who had accompan- ied the IO on the date of incident, has also admitted that his pres- ence the IO did not record statement of any of the factory workers. Therefore, despite availability, no other independent person was brought to the stand by the prosecution, which throws a doubt on the case of the prosecution.
20. PW2 is the husband of the deceased, whose testimony does not implicate the accused in any manner. He has only deposed that his wife had died as wall of the factory had fallen over her. Fur- ther, the mechanical inspector PW3 has also been examined by the prosecution and he has stated that on inspection of the crane in ques- tion, no damage was found on the same. In this regard, it is the diffi- cult to believe that if the crane had hit the wall with such a force, as deposed by PW1, it would not get even a minor scratch. Therefore, the testimony of this witness also does not help the prosecution.
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21. During cross examination, the IO was unable to com- ment as to whether the wall was cemented or not. He also admitted that he had not collected any evidence regarding the employment of the deceased in the factory. Further, in his cross-examination, the IO has admitted that he did not collect any evidence to show that the complainant was working in the factory as a supervisor. He also ad- mitted that no evidence was collected to show that the incident took place due to negligence of the crane driver. As such, the IO has not made any effort to collect cogent evidence regarding the incident. At this juncture, it is pertinent to note that in present case, the photo- graphs of the spot were produced in evidence. However, already noted above, PW1 has failed to identify the photographs from the dock. Further, there is no mention by the IO as to who had clicked the photographs of the site. Therefore, the same cannot be relied upon.
22. The other document on record is the site plan Ex. PW4/A. In this regard, the complainant has deposed that the site plan was not prepared at his instance. The site plan also does not bear signatures of any other person except the IO. In the site plan, it is depicted that point A is the place where the crane was found parked and point B is the spot where the deceased was working. The IO has admitted that the site and does not mention the location of the aluminium bundles. Therefore, this document is also not reli- able.
23. Further, it is an admitted case that on the date of incid- ent, the work regarding loading and unloading of aluminium bundles was going on the in factory. However, the offence charged Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 14 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:39:08 +0530 against the accused Gori Shankar, inter alia, includes Section 288 IPC, which only applies whenever negligence is involved in the pro- cess of "pulling down" or "repairing" any building. There is not an iota of evidence in the present case that the accused Gori Shankar was involved in any of the said activities, on the date of incident. As such, in the present matter, the evidence on record is insufficient to prove the guilt of the accused persons, beyond any reasonable doubt.
CONCLUSION -
24. To recapitulate the above discussion, in the present matter, it was incumbent upon the prosecution, to prove that on ac- count of rashness and negligence of the accused persons, the wall fell in the factory of the accused Gori Shankar, and the victim lost her life. Even after appreciating the testimony of all the prosecution witnesses, there is nothing on record to prove the offence beyond any reasonable doubt. The complainant is the sole witness of the in- cident, who cannot be relied upon beyond reasonable doubt. The other material on record neither singularly nor jointly proves the commission of offence by the accused persons. No other public wit- ness has been brought to the stand, despite admitted availability. In- adequate investigation done by the IO only weakens the case of the prosecution. As such, this court has no hesitation to hold that the prosecution has failed to prove the offence at the required threshold.
25. Resultantly, the accused GORI SHANKAR son of Attar Chand and RAM BALI son of Dineshwar Singh are entitled to benefit of reasonable doubt and are hereby found not guilty. They Cr. Case No. 77392/2016 State Vs Gori Shankar & Anr. Page 15 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.25 15:39:15 +0530 are hereby ACQUITTED of the offences under Section 287/288/304A of the Indian Penal Code, 1860.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date: 2023.08.25
15:39:22 +0530
Announced in Open (DEV CHAUDHARY)
Court in presence of Metropolitan Magistrate - 07
accused.
Shahdara District, KKD
This judgment
contains 16 signed New Delhi, 25.08.2023
pages.
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