Delhi District Court
State vs . Nishar on 31 October, 2012
1/11 FIR No.149/2005
IN THE COURT OF ANKUR JAIN
METROPOLITAN MAGISTRATE
KARKARDOOMA COURT, DELHI
FIR No. 149/2005
State Vs. Nishar
U/s. 288/304A IPC
PS. Welcome
1. Sl. No. of the case 368/2007 dated 12.09.2007
2. Date of commission of offence 14.04.2005
3. Date of Institution 09.11.2005
4. Name of the complainant Salim S/o Sh. Kallu
R/o Bada Moharram, Nai
Basti, Shambal (U.P) at present
H.No.209, Janta Colony, Delhi.
5. Name of the accused Nishar S/o Sh. Buddhan Khan,
R/o H.No.H209, Janta Colony,
Delhi.
6. Offence Complained or proved U/s 288/304A IPC
7. Plea of the accused Pleaded not guilty
8. Arguments heard /Order reserved on 28.09.2012
9. Date of such order 31.10.2012
10.Final Order Acquitted
2/11 FIR No.149/2005
J U D G M E N T
1. Brief facts of the prosecution case are that on 14.04.2005 SI Lal Chand, IO was posted at P.S. Welcome. On that day on receipt of DD No.33A copy of which is Ex.P.W.9/A, he along with Ct. Narender reached at H.No.H 209, Janta Colony, Delhi. There he came to know that injured had already been removed by PCR Van to GTB Hospital. He left Ct. Narender at the spot and went to GTB hospital where he obtained MLC Ex.P.W.6/A of injured Saleem, on which doctor declared him fit for statement. He recorded statement Ex.P.W.9/B of injured Saleem to the effect that he resided at Bada Moharram, Nai Basti, Shambhal, U.P. and for the last six months he had been doing the work of steam press at H.No.H209, Janta Colony, Delhi belonging to his owner Nishar. He had requested several times to his owner to change the boiler of steam press as the same was in bad condition and it could burst at any time. But his owner did not pay any heed to his request. Today, i.e., on 14.04.2005 the boiler of steam press had bursted due to which the door of the front house had broken and wall of the factory where the boiler was installed had also broken. Due to bursting of boiler, he had also sustained injuries on mouth, chest, back and feet and boiled water also fell down on him and he also received burn injuries. This accident had occurred due to negligence of his owner and due to nonarrangement of proper safety. On this statement of Saleem, IO prepared rukka Ex.P.W.9/C on the basis of which FIR No.149/2005 was recorded.
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2. During investigation, IO summoned the crime team who came at the spot and inspected the spot and took photographs which are (collectively) Ex.P.W.7/A and its negatives are (collectively) Ex.P.W.7/B. IO prepared site plan Ex.P.W.9/D. Accused namely Nishar was arrested vide arrest and personal search memos Ex.P.W.4/A and Ex.P.W.4/B and produced the accused before learned court and accused was sent to J.C. On 19.04.2005 on receipt of DD No.6B Ex.P.W.9/E regarding death of injured Saleem, IO went to GTB Hospital and made a written request Ex.P.W.9/F for postmortem and the death report is Ex.P.W.9/F1. IO received the postmortem report Ex.P.W.9/G and the death summary Ex.P.W.9/H of injured. After postmortem, deadbody was handed over to family members of deceased and he recorded statements of family members with regard to identification and handing over of dead body. IO recorded statements of witnesses and after completion of investigation, he filed the charge sheet U/s 288/304A IPC in the court for trial.
3. Accused put his appearance in the court. Copies of challan were supplied to him. On 06.12.2006, charge was served upon the accused for the offence U/s 287/304 A IPC to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined as many as 10 witnesses. P.W.1 is Sahana, mother of deceased Saleem and P.W.2 is Mohd. Wazid, cousin of deceased who are formal witnesses and have identified the dead body of deceased Saleem. They were not crossexamined despite opportunity afforded to accused.
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5. P.W.3 is Ct. Satish who is also a formal witness. He has stated that on 19.04.2005 on the basis of DD No.6B regarding death of Saleem, he along with SI Lal Chand, IO reached at GTB Hospital where dead body of deceased was taken and sent to mortuary for post mortem. The dead body after postmortem was handed over to legal heirs of deceased in his presence. He was not crossexamined despite opportunity afforded to accused.
6. P.W.4 is Ct. Narender Kumar who has stated that on 14.04.2005 he was posted at P.S. Welcome. On that day at about 5 a.m. on receipt of DD No.33B from duty officer by IO, he along with SI Lal Chand, IO reached at H.No.H209, Janta Colony, Delhi. There they came to know that injured had already been removed by PCR Van to GTB Hospital. He remained at the spot and IO went to GTB hospital. After about 11½ hours, IO came back at the spot. IO prepared rukka and he was sent to P.S. with rukka on the basis of which FIR in the present case was registered. IO made search of accused Nishar but he was not available there. After about 2 hours, accused Nishar appeared on the spot and IO arrested accused Nishar vide personal search and arrest memos Ex.P.W.4/A and Ex.P.W.4/B. In his crossexamination, he denied that he was deposing falsely.
7. P.W.5 is ASI Asgar Ali, Duty Officer who has recorded and proved FIR No.149/2005 copy of which is Ex.P.W.5/A. He was not cross examined by learned counsel for the accused despite opportunity afforded to him.
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8. P.W.6 is Dr. Banarshi who has stated that on 14.04.2005, he was posted as CMO at GTB Hospital. On that day at around 5 A.M. they examined one patient Saleem aged 22 years, Male and prepared MLC Ex.P.W.6/A. He was not crossexamined by accused despite opportunity afforded to him.
9. P.W.7 is Ct. Sajeev Benwal, Photographer, Mobile Crime Team, NE who has stated that on receipt of a call, the mobile team reached at the spot at H.No.H209, Janta Colony, Welcome. He took 8 photographs of the spot on the direction of Incharge, Crime Team and IO. The said photographs are (collectively) Ex.P.W.7/A. He proved the negatives of the same as Ex.PW7/B. He was not crossexamined by learned counsel for accused despite opportunity afforded to him.
10. P.W.8 is Inspector Suman Kumar Sharma, Incharge, Crime Team/NE who has stated that on 14.04.2005 on receipt of information from SI Lal Chand of P.S. Welcome, he along with his crime team reached at H.No.209, Janta Colony, Welcome where he inspected the spot at about 6.20 to 6.40 a.m. Thereafter, Ct. Sanjeev Beniwal, Photographer, Crime Team took 8 photographs of the spot which are (collectively) Ex.PW7/A and negatives are (collectively) Ex.P.W.7/B. He was not crossexamined by learned counsel for the accused despite opportunity afforded to him.
11. P.W.9 is SI Lal Chand, IO who has stated that on 14.04.2005 he was posted at P.S. Welcome. On that day on receipt of DD No.33A copy of which is Ex.P.W.9/A, he along with Ct. Narender reached at H.No.H209, Janta Colony, Delhi. There he came to know that injured had already been removed 6/11 FIR No.149/2005 by PCR Van to GTB Hospital. He left Ct. Narender at the spot and went to GTB hospital where he obtained MLC Ex.P.W.6/A of injured Saleem, on which doctor declared him fit for statement. He recorded statement Ex.P.W.9/B of injured Saleem and prepared rukka Ex.P.W.9/C on the basis of which FIR No.149/2005 was recorded. During investigation, he summoned the crime team who came at the spot and inspected the spot and took photographs which are (collectively) Ex.P.W.7/A and its negatives are (collectively) Ex.P.W.7/B. IO prepared site plan Ex.P.W.9/D. Accused Nishar was arrested vide arrest and personal search memos Ex.P.W.4/A and Ex.P.W.4/B and he produced the accused before learned court and accused was sent to J.C. On 19.04.2005 on receipt of DD No.6B Ex.P.W.9/E regarding death of injured Saleem, he went to GTB Hospital and made a written request Ex.P.W.9/F for postmortem and the death report is Ex.P.W.9/F1. He received the postmortem report Ex.P.W.9/G and the death summary Ex.P.W.9/H of injured. After postmortem, deadbody was handed over to family members of deceased and he recorded statements of family members with regard to identification and handing over of dead body. He recorded statements of witnesses and after completion of investigation, he filed the charge sheet in the court for trial. In his crossexamination by learned counsel for the accused, he has stated that he did not remember on whose pointing out site plan was prepared by him. He admitted that the writing on Ex.P.W.9/B was not his writing. He denied that the statement of injured Saleem was fabricated by him and other police officials to implicate the accused in this case. He admitted that after going through the photographs 7/11 FIR No.149/2005 (collectively) Ex.P.W.7/A, it cannot be established that the same are of H.No.209, Janta Colony, Delhi. He had not seized any article to prove that there was any boiler or any other machine or steam press installed there. He did not remember whether he had recorded statement of any of the neighbourers regarding the installment of any boiler or any other instrument or steam press in the house of the accused or regarding any incident happened there. He arrested the accused on 14.04.2005 but he did not remember the time of his arrest. He even did not recollect whether it was morning time, noon time or evening time or night time. He did not remember when he received the information regarding the death of injured. He denied that accused Nishar was falsely implicated in this case after concocting a false story or that the accused was never running any boiler or steam press or any other machine, etc. He denied that he was deposing falsely.
12. P.W.10 is Dr. Arvind Kumar, Assistant Professor, Department of Forensic Medicines, GTB Hospital, Delhi who has stated that on 19.04.2005 he was posted as Senior Demonstrator at GTB Hospital. On that day at around 2 p.m. he conducted post mortem on the body of Saleem aged 22 years, Male, on the request of SI Lal Chand of P.S. Welcome. He proved his detailed report as Ex.P.W.9/G. In his post mortem report, he opined the time since death 6 hours and cause of death was septicemic shock due to antemortem infected burns (scalds) involving 60% of the toral burnt area. He was not crossexamined by learned counsel for accused despite opportunity afforded to him. 8/11 FIR No.149/2005
13. Thereafter, vide order dated 31.07.2012 the prosecution evidence was closed as all the material witnesses as per prosecution list stood examined.
14. Statement of accused was recorded on 27.08.2012 wherein he denied all the incriminating evidence put to him and claimed to be innocent.
15. I have heard Ld. APP, Shri Praveen Choudhary, learned counsel for the accused and perused the entire evidence on record.
16. Before adverting to the facts of the case, it is important to note the legal position. As per the judgment of the Hon'ble Supreme Court in State of Karnataka Vs. Muralidhar SC AIR 2009 1621, it was held that " Section 304A speaks of causing death by negligence. This section applied to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This Section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a 9/11 FIR No.149/2005 prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately . Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will.
Further, in para 7 it is held that " Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. 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 10/11 FIR No.149/2005 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 to be sufficient considering all the circumstances of the case.
17. Keeping in view of the above position of law, the same has to be applied to the facts of the present case. Firstly, in this case the statement of injured cannot be treated as dying declaration because IO in his cross examination has stated that the writing on Ex.P.W.9/B was not his writing. Therefore it is not proved on record that as to who was the author of the statement of deceased. Hence, statement Ex.P.W.9/B and LTI of deceased Saleem on the same remains unproved on record. Hence, the same cannot be treated as dying declaration and cannot be relied upon to convict the accused. Secondly, the IO has admitted in his crossexamination that after going through the photographs Ex.P.W.7/A, it cannot be established that the same are of H.No.209, Janta Colony, Delhi. Moreover, IO has stated that he did not remember on whose pointing out site plan was prepared. This creates a doubt in the prosecution story as alleged. It could not be proved on record that the accident occurred due to bursting of the boiler and that there was negligence 11/11 FIR No.149/2005 on the part of the accused. Thirdly, no independent witness particularly the owner of the house whose wall was broken in the accident has been joined in the investigation.
18. In view of the above discussion, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt that accused has negligently omitted to take due care with the boiler of steam press which was his duty and that caused the death of deceased Saleem. In view of the facts and circumstances of the case, accused is acquitted of the offences U/s 287/304A IPC. Bail bond and surety bond of the accused are treated as ones U/s 437 (A) Cr. P.C. File be consigned to Record Room.
ANNOUNCED IN THE
OPEN COURT ON 31.10.2012 (ANKUR JAIN)
METROPOLITAN MAGISTRATE,
KKD COURTS, DELHI