Delhi District Court
State ...........Prosecution vs . on 7 April, 2022
IN THE COURT OF Ms. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 56/13
Police Station Domestic Airport
Under Section(s) 287/338 IPC
Cr. Case no. 423122/2016
CNR no. DLSW020011022015
IN THE MATTER OF:
State ...........Prosecution
Vs.
1. Jai Kant Mishra
S/o Bimbal Kant Mishra
R/o 16A, Badiyal, Palam Village,
New Delhi
2. Bibhuti Bhagat
S/o Kunj Bihari Bhagat
R/o RZ668/38, Gali no.18C, Sadh Nagar,
Delhi ......Accused persons
1. Name of complainant : Usha Devi
2. Name of accused persons : 1. Jai Kant Mishra
2. Bibhuti Bhagat
3. Offences complained of : Under Sections 287/338 of
The Indian Penal Code, 1860
4. Plea of accused persons : Not guilty
Digitally
4. Date of commission of offence : 31.07.2013 signed by
BHARTI BHARTI
Date:
GARG
GARG 2022.04.07
16:06:17
+0530
State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.1/21
5. Date of institution of case : 29.06.2015
6. Date of reserving judgment : 11.03.2022
7. Date of pronouncement : 07.04.2022
8. Final judgment : Both accused persons
acquitted.
JUDGMENT:
1. The present case pertains to prosecution of accused persons in respect of offences punishable under Sections 287 and 338 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity).
2. The facts of present prosecution case lie in a narrow compass. On 01.08.2013, upon the receipt of DD no.16 from Constable Bani Singh, ASI Ramjit reached the ESI Hospital, Basai Darapur where he found that the injured/complainant Usha Devi was admitted vide MLC no.C44181 and under treatment. As she was declared by the doctor unfit to give statement on that day, the IO Mukesh Baliyan went to the hospital on 07.08.2013 along with Ct. Somveer and collected the MLC of injured. Thereafter, the complaint of injured was recorded. The injured alleged in her complaint that she was employed at Lion's Services Ltd. as housekeeping staff and was deployed for night duty on 31.07.2013 from 08:00 pm to 08:00 am. On that day, her supervisor Jai Kant Mishra (hereinafter, accused no.1) directed her to operate Tiger Machine Jolly Scooter (hereinafter, Machine) for cleaning despite her resistance as she was not skilled to run the Machine. Then, she immediately complained to her manager Bibhuti (hereinafter accused no.2), however, paying no heed to her grievance, he threatened her to leave the job if she could not operate the Machine. She was also not provided with security equipment despite her request. Left with no Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.07 16:06:28 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.2/21 choice, she proceeded to operate the Machine. At about 8.30/9.00 PM at Ferry Corridor near DIAL office/IB office, the Machine toppled and fell on her left leg causing injuries thereupon. The injured fell unconscious and was rushed to hospital wherein she was treated and operated for leg injury.
3. On the basis of MLC and statement of injured, the FIR was registered under Sections 287/337 IPC alleging negligence on the part of accused persons.
During the course of further investigation, the IO obtained the result on the nature of injuries which the doctor opined as grievous and Section 337 IPC was replaced by Section 338 IPC. The Machine was seized and got mechanically inspected. The statements of witnesses were recorded under Section. 161 Cr.P.C, site plan was prepared and relevant documents of employment of injured were collected. The accused persons were arrested and subsequently released on police bail. After the culmination of investigation, the chargesheet was filed against the accused persons in court.
4. Cognizance was taken of offences under Sections 287 and 338 of IPC and the accused persons were summoned to face trial for the said offences. Upon their appearance, the copy of chargesheet was supplied to accused persons in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
5. On the basis of material filed along with chargesheet, notice of accusation u/S 287 and 338 of IPC was served upon the accused persons to which they pleaded not guilty and claimed trial. The accused persons admitted the recording of DD No.16 dated 01.08.2013 and MLC of injured under Section 294 of Cr. P. C. Consequently, PW Dr. Gaurav Kumar Basoya was dropped from the list of witnesses and the MLC was marked as Ex.P/A/1. BHARTI Digitally signed by BHARTI GARG GARG Date:
2022.04.07 16:06:43 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.3/21
6. To demonstrate the guilt of accused persons, the prosecution examined seven witnesses in all. PW1 Usha Devi (the injured/complainant) deposed substantially on the lines of her police complaint which is tendered Ex.PW1/A. She stated that she was working as housekeeping staff at Lion's Services Ltd. on 31.07.2013 when the incident happened and had been employed there for about two months. On duty, both the accused persons forced her to operate the Machine for mopping the floor although she protested to same as she was not competent to use the said Machine. After five minutes of operating the Machine, she lost control thereof while taking turn, as a result of which, the Machine fell on her left leg and her leg was cut at the left side above the ankle.
7. PW1 Usha Devi was crossexamined at length. In her cross examination, she stated that accused no.2 had introduced her at the company.
She admitted that any worker who was asked to operate the machine used to operate the same and no training was imparted to any worker for that purpose. She further admitted that she was bound to obey the directions of Managing Official per her service condition mentioned in appointment letter Ex.PW1/D1. She denied the suggestion that she operated the Machine on her own without any direction of accused persons. She further denied that she falsely implicated the accused persons to extract money from them.
8. PW2 SI Ram Jeet deposed that on 01.08.2013, the duty officer handed over to him DD no.16 Ex.PW2/A regarding admission of injured at ESI Hospital where he went and met the doctor who told him that injured was unfit for making statement. Finding no other witness of incident at the hospital, he came back to police station and DD no.16 was marked to some other police Digitally signed by BHARTI BHARTI GARG Date:
State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.4/21 GARG 2022.04.07 16:06:57 +0530 official. In his crossexamination, he admitted that the DD entry no.16 was lodged after about 12 hours of the incident.
9. PW4 Saroj Bala testified on oath that she was also employed as housekeeping at Lion's Services and on 31.07.2013, had duty inside the corridor at washroom. She heard the screams of injured that she had fallen down as she was working on the Machine. She then rushed to the spot and the injured told her that that she had started working on the Machine for convenience. Thereafter, she accompanied the injured to hospital.
10. As PW4 Saroj Bala did not support the prosecution case, the Ld. APP was permitted to crossexamine the said witness. In crossexamination by Ld. APP, she admitted that she was on duty on 31.07.2013 on the same floor as the injured, but clarified that her duty was outside Airline office corridor area. She denied the suggestion that accused persons had mounted pressure on the injured to run Machine for cleaning the floor area as no operator was present. She further denied that accused persons threatened to terminate the job of injured if she did not run the Machine. She stated that the injured voluntarily used the Machine. She further denied that she was present at the spot or witnessed any negligence on the part of accused persons. She was not crossexamined by accused persons despite opportunity.
11. PW5 Laxmi also deposed that she was also employed as housekeeping at Lion's Services and on the day of incident, she had a duty to clean the corridor area with mop and the injured was on duty in some other area. At around 9.00 PM, she heard a noise and on rushing to the spot, she got to know that complainant had got injured due to Machine and was taken to Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.07 16:07:05 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.5/21 hospital. There was blood on the floor but she expressed ignorance about further cause of injury to injured. She stated that she did not know whether accused persons were present at the spot when incident happened.
12. Again, as PW5 Laxmi did not support the prosecution case, the Ld. APP was permitted to crossexamine the said witness. In crossexamination by Ld. APP, she denied the suggestion that injured was pressurized by accused persons to operate the Machine as she stated that she was not present at the spot of incident and came there only after she heard the screams. She was confronted with her previous statement Mark A but she denied having made any such statement. She was also crossexamined by the accused persons wherein she admitted that accused no.2 was not present on the day of incident. She further admitted that accused persons never gave direction to female staff to operate the Machine at night. It was further stated that she and Saroj Bala were called to police station where their particulars were noted down.
13. PW3 Jasvinder Kaur tendered in evidence the following documents: Pay slips of injured Usha Devi Ex.PW3/A (colly), attendance sheet of the house keeping staff for the month of July 2013 Ex.PW3/B and Ex.PW3/H, job details and responsibilities of manager Ex.PW3/C, copy of picture of the Machine Ex.PW3/D, responsibilities of supervisor Ex.PW3/E, job description of supervisor and letter of appointment Ex.PW3/F, ESIC ID certificate of Usha Devi, Duty Roster of supervisor for July 2013, attendance sheet and register of wages Ex.PW3/G, and photographs of Machine Ex.PW3/I (colly). She was not crossexamined by accused persons despite opportunity.
14. PW6 HC Ramanand deposed that on 07.08.2013 at about 04.50 PM, Digitally signed by BHARTI BHARTI GARG Date:
GARG 2022.04.07
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State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.6/21 the IO presented the rukka on the basis of which he registered the present FIR Ex.PW6/A and also made an endorsement Ex.PW6/B on rukka. In his cross examination, he admitted that there is no certificate under Section 65B in respect of present FIR.
15. PW7 Inspector Mukesh Baliyan (the IO of present case) deposed that DD no.16 was marked to him on 06.08.2013. On 07.08.2013, he along with Ct. Sombir went to the hospital where the injured was admitted. After doctor declared the injured fit for making statement vide letter Ex.PW7/A1, he recorded her statement and collected her MLC. He prepared the tehrir Ex. PW7/A and got the present FIR registered. Thereafter, he seized the Machine vide seizure memo Ex.PW7/B and made request letter Ex.PW7/C for mechanical inspection of the Machine. He arrested the accused persons vide arrest memos Ex.PW7/D and Ex.PW7/E and released them on police bail. The accused persons were personally searched vide personal search memos Ex.PW7/F and Ex.PW7/G. The notice under Section 91 Cr.P.C Ex.PW7/G1 was served to procure the documents regarding the nature of duties of injured and accused persons. He prepared the site plan Ex.PW7/G2. The opinion of doctor regarding the nature of injuries was obtained vide request letter Ex.PW7/H.
16. In his crossexamination, he stated that there was no delay in recording the statement of injured as the DD no.16 was received by him on 06.08.2013. He admitted that the site plan did not bear the signatures of injured. He further stated that despite requesting for CCTV footage, it could not be provided as it was not available due to lapse of time. He admitted that the request letter regarding the CCTV footage was not filed along with chargesheet. However, he clarified that the said request letter and its reply were on the police Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.04.07 16:07:24 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.7/21 file which are Ex.PW7/D1 (OSR) and Ex.PW7/D2 (OSR) respectively. He denied the suggestion that he had falsely implicated the accused persons in connivance with the injured.
17. Thereafter, the prosecution evidence was closed and statements of both accused persons were recorded separately under Section 281 read with Section 313 Cr. P. C. All the incriminating circumstances appearing against the accused persons in evidence were put to them. The accused persons controverted all the allegations levelled against them and stated that they had been falsely implicated as they never forced the injured to operate the Machine. The accused no.2 additionally stated that he was on leave on the date of incident and got to know about the incident only at about 01.00 AM in the intervening night of 31.07.2013/01.08.2013. The accused persons chose not to lead defence evidence, whereafter, defence evidence was closed and the matter was taken up for final arguments.
18. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused persons beyond reasonable doubts. The testimony of injured has remained unshaken on the point that the accused persons were present on duty and had forced her to operate the Machine despite her ineptness. The MLC of injured is unrebutted and there is no material discrepancy occurring in the prosecution evidence. Therefore, it is prayed that the accused persons be convicted of alleged offences.
19. Per contra, the Ld. Counsel for accused persons has strenuously urged for acquittal of accused persons on multiple grounds. He has argued that the evidence of injured is not reliable beyond reasonable doubts. The document of muster roll relied upon by the prosecution itself records that accused no.2 was Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.04.07 16:07:43 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.8/21 absent from office on the date of incident. It is contended that no other witness supported the case of prosecution except the injured herself as she intends to extort undue benefits from accused persons by lodging false case against them. Further, the FIR was registered with considerable delay. Lastly, it is asserted that the injury suffered by the injured was owing to her fault as she operated the Machine on her own and nobody forced her for the same.
20. Arguments heard. Record perused. Considered.
21. Before embarking upon the appreciation of evidences, it would be apposite to reproduce the provisions for which the accused has faced trial: "287. Negligent conduct with respect to machinery.--Whoever does, with any machinery, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
"338. Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."Digitally signed by BHARTI
BHARTI GARG GARG Date:
2022.04.07 16:07:53 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.9/21
22. The question that falls for determination is whether the accused persons did any act with the machinery in a rash or negligent manner so as to endanger human life, or knowingly or negligently omitted to take such order with machinery in their possession or care as is sufficient to guard against nay probable danger to human life from such machinery, and by reason thereof caused grievous hurt to the injured.
23. At the outset, the fact that the injured suffered grievous injury on her left leg due to the overturn of Machine while she was operating it on 31.07.2013 is duly proved on record. The testimony of PW1 Usha Devi on that facet has remained unshaken in her crossexamination. No suggestion rebutting this fact is made to the witness. A bare glance at photographs of the Machine Ex.PW3/I (colly) reflects that it is a oneseater scooter like looking equipment.
The MLC dated 31.07.2013 Ex.P/A/1 is admitted by accused persons under Section 294 Cr.P.C and there appears no reason to doubt its truthfulness. The MLC records the fact of injury on the left leg of injured and the nature of such injury is opined as grievous, which corroborates the oral evidence of PW1 Usha.
24. Having said that, the core issue remaining to be adjudicated is as to whether the accused persons had compelled the injured to operate the Machine beyond the ambit of her duties despite her reluctance expressed to accused persons as she was not skilled for it and further, if such act of accused persons amounted to negligence or rashness on their part and such as to be the cause of the grievous injuries suffered by injured.
25. Notably, both PW4 Saroj Bala and PW5 Laxmi negated the version of prosecution as regards the imputed act of the accused persons. Both of them stated that they did not witness the accused persons pressurizing the injured to Digitally signed by BHARTI BHARTI GARG State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.10/21 GARG Date:
2022.04.07 16:08:03 +0530 work with the Machine. Therefore, the only crucial witness on whose testimony the veracity of prosecution story hinges is the injured herself, i.e. PW1 Usha Devi. The Ld. counsel for accused persons has argued that the testimony of injured cannot be made the sole basis for conviction as no other independent witness has deposed in consonance with the injured and her complaint is actuated with the motive to extort money from accused persons.
26. Now, the court is cognizant of the wellsettled proposition that it is no rule of law that the evidence of injured witness must always be corroborated with independent evidences and further, that conviction can proceed from solitary statement of such witness if it inspires confidence. However, in the instant case, finding itself in agreement with the Ld. counsel for accused persons, this court is of the considered opinion that the testimony of PW1 Usha Devi is bristled with material inconsistencies visàvis the other evidence brought on record by the prosecution and thus, not sufficient to fasten criminal liability on accused persons.
27. First and foremost, the perusal of document of muster roll Ex.PW3/B, which contains entry as to attendance of staff at duty on the date of incident, reveals that accused no.2 was absent from duty on the said date. The accused no.2 also stated in his statement under Section 281 read with Section 313 Cr.P.C that he was on leave on that day. The muster roll is maintained in the regular course of duties and nothing is on record to discredit that document. On the other hand, PW1 Usha Devi stated that accused no.2 had forced her at duty to work with the Machine. In this manner, the testimony of PW1 Usha Devi is substantially incongruous with the document Ex.PW3/B, thereby warranting a closer scrutiny of her evidence.
Digitally signed by BHARTI BHARTI GARG
GARG Date:
2022.04.07
16:08:11 +0530
State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.11/21
28. Furthermore, the document Ex.PW3/B was collected by the IO/PW7 Inspector Mukesh Baliyan himself during investigation and thereafter, filed along with chargesheet. He stated in his crossexamination that as per the statement of eyewitnesses, accused no.2 was present on spot. He further stated that he had requested for CCTV footage of the spot but same could not be provided due to lapse of time. Now, PW4 Saroj Bala and PW5 Laxmi have not supported the prosecution case. The CCTV could not be procured due to delay on the part of IO. Faced with the documentary proof showing the absence of accused no.2 from duty, fair investigation demanded more efforts on the part of IO to unravel the correct state of affairs and render probable explanation about the blatant inconsistency between the oral statement of injured and the attendance sheet qua the presence of accused no.2 at the spot.
29. The investigation in present matter is abound with other material defects as well. The incident is stated to have happened on 31.07.2013 at about 8.30/9.00 PM, however, the DD no.16 Ex.PW2/A was recorded on 01.08.2013 at about 10.30AM, i.e. after a long gap of 12 hours. Apparently, the DD no.16 was given by one Constable Bani who has not been cited by prosecution in evidence. Such an inordinate delay in reporting the matter to police station has, least to say, remained unaccounted and goes on to dent the veracity of prosecution case.
30. Besides, there is an inherent contradiction between the testimony of PW1 Usha Devi and the MLC Ex.P/A/1, which further impeaches her credibility. PW1 Usha Devi stated in her evidence that she had fallen unconscious as soon as the incident happened with her. However, the MLC records that she was conscious and oriented and that the alleged history of the Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.04.07 16:08:19 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.12/21 incident was narrated by herself and Saroj Bala.
31. The court is fortified in its inference in view of the fact that there is an unexplained delay in registering the FIR in present case. Although DD no.16 was received on 01.08.2013, the statement of injured Ex.PW1/A came to be recorded only on 07.08.2013 on which basis the FIR was registered on that day. There was a delay of about six days in registering the FIR. Now, it is well settled that no hard and fast rule can be applied to determine the effect of delay in filing the FIR and the court would see whether the explanation afforded is plausible enough in the given facts and circumstances. In Ram Jag Vs. State of U.P (1974) 4 SCC 201, it was held by Hon'ble Supreme Court that: "Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution."
32. Adverting to present case, PW2 ASI Ramjit stated that on receiving the DD no.16 on 01.08.2013, he went to the hospital and met the doctor who told him that the injured was unfit for statement. Thereafter, he returned to police station and DD was marked to some other police official. On the contrary, the MLC Ex.P/A/1 records that the injured was conscious and oriented on 31.07.2013 when she was brought to hospital and as noted hereinabove, she herself disclosed the alleged history. Additionally, the report of doctor to the effect that injured was unfit for statement is not placed on record. These factors not only injure the reliability of PW2 ASI Ramjit but also make it difficult for the court to believe that PW1 Usha Devi was not fit for statement on that day or Digitally signed by BHARTI BHARTI GARG Date:
State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.13/21 GARG 2022.04.07 16:08:32 +0530 that she was so declared by any doctor.
33. The IO stated in his crossexamination that there was no delay in registering the FIR as he had received the DD no.16 in late night of 06.08.2013 and he immediately went to hospital the next day and recorded the statement Ex.PW1/A of injured after seeking declaration of her fitness from the doctor vide request letter Ex.PW7/A1. However, nowhere it is mentioned in the chargesheet that the IO received the DD no.16 on 06.08.2013. Even if assumed to be true, the fact of delayed marking of DD after six days creates a gaping hole in the prosecution story and does not buttress its veracity in any manner. Accordingly, the delay in recording the statement of injured, and consequently in registering the FIR, has not been sufficiently explained by the prosecution. In other words, as the FIR was not promptly registered, there was ample opportunity to concoct and deliberate with the injured to file an embellished report. On that touchstone, it would be unsafe to accept the recitals of FIR to be truthful version of the incident and the possibility of injured conniving with investigation agency to falsely implicate the accused persons cannot be ruled out.
34. Moreover, the site plan Ex.PW7/G2 is not prepared at the instance of injured or any other witness present at the site; rather, by the IO himself. Thus, it is not clear as to on what basis the IO drew and depicted the place of incident in the site plan. Another important piece of evidence seems to have been botched by the IO, making the prejudice in investigation more evident. Hence, the glaring loopholes in investigation coupled with the unreliable and testimony of injured loom large in the mind of this court to not believe the prosecution case beyond the shadow of reasonable doubts without there being Digitally signed by BHARTI BHARTI GARG Date:
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any other corroborative evidence on record.
35. Moving further, even if the fact that the injured operated the Machine under the pressure of accused persons, were assumed to be true, it would fall short of satisfying the ingredients of Sections 287 and 338 IPC in the absence of any cogent material on record to establish the proximate nexus between the alleged act of accused persons and the injury caused to the injured. At this juncture, a brief understanding of the meaning of expressions 'rashness' and 'negligence' contemplated under criminal law would aid better comprehension of their applicability, or otherwise, to the facts of present case. The Hon'ble Supreme Court observed in Alister Anthony Pareira Vs. State of Maharashtra (2012) 2 SCC 648 as hereinunder: "37. In Empress of India v. Idu Beg ILR (1881) 3 All 776, Straight J., explained the meaning of criminal rashness and criminal negligence in the following words:
"...criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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."
The above meaning of criminal rashness and criminal negligence given by Straight, J. has been adopted consistently by this Court."
36. In view thereof, it is clear that in order to label the rash act of Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.07 16:08:57 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.15/21 accused as criminal, it should be of such nature as would imply complete recklessness or indifference towards the hazardous consequences which may ensue, i.e. the imputability arises from acting despite consciousness. Similarly, a negligent act would be culpable in criminal law if there has been a gross neglect in duty of exercising reasonable care. Furthermore, the rashness and negligence must necessarily be established by the prosecution to be the causa causans, i.e. immediate cause, of the resulting injury and not merely to be the sine qua non. Reliance may be placed on Sushil Ansal Vs. State through CBI (2014) 6 SCC 173 wherein the Hon'ble Supreme Court has held that: "81. Suffice it to say that this Court has in Kurban Hussein's case (supra) accepted in unequivocal terms the correctness of the proposition that criminal liability under Section 304A of the IPC shall arise only if the prosecution proves that the death of the injured was the result of a rash or negligent act of the accused and that such act was the proximate and efficient cause without the intervention of another person's negligence.
A subsequent decision of this Court in Suleman Rahiman Mulani v. State of Maharashtra AIR 1968 SC 829 has once again approved the view taken in Omkar Rampratap's case (supra) that the act of the accused must be proved to be the causa causans and not simply a causa sine qua non for the death of the injured in a case under Section 304A of the IPC. To the same effect are the decisions of this Court in Rustom Sherior Irani v. State of Maharashtra 1969 ACJ 70;
Balchandra @ Bapu and Anr. v. State of Maharashtra AIR 1968 SC 1319; Kishan Chand v. State of Haryana (1970) 3 SCC 904; S.N Hussain v. State of A.P. (1972) 3 SCC 18; Ambalal D. Bhatt v. State of Gujarat (1972) 3 SCC 525 and Jacob Mathew's case (supra).
82. To sum up: for an offence under Section 304A to be proved it is not only necessary to establish that the accused Digitally signed by BHARTI BHARTI GARG State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.16/21 GARG Date:
2022.04.07 16:09:05 +0530 was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the injured.
83. As to what is meant by causa causans we may gainfully refer to Black's Law Dictionary (Fifth Edition) which defines that expression as under:
"The immediate cause; the last link in the chain of causation."
37. It is significant to note that the present case does not fall within the first part of Section 287 IPC as it is not the case of prosecution that the accused persons themselves did any act with the Machine, let alone rashly or negligently. The second part of Section 287 IPC would be applicable only if it is proved that they were in charge of the possession or care of the Machine, and that by forcing the injured to work with the Machine, they knowingly or negligently omitted to take such order with Machine as is sufficient to guard against any probable danger to human life.
38. Admittedly, accused no.1 was the supervisor of injured and accused no.2 was her manager at Lion's Services Ltd. Being in such capacity visàvis the injured, it can be said that the accused persons were in possession of the Machine at the time of incident. Nevertheless, there is no convincing material on record to show that the accused persons acted in such a rash or negligent manner, apart from the fact that they had directed the injured to work using the Machine despite her hesitation.
39. The bare fact that the injured expressed her inability to use the Machine is not sufficient to drive home the guilt of accused persons beyond reasonable doubts. It is not brought on record as to what made the injured Digitally signed by BHARTI BHARTI GARG Date:
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incapable of using the Machine as it is not shown if any specialised skill or training was required before using the Machine. In fact, PW1 Usha Devi admitted in her crossexamination that no training was imparted at the company for operating the Machine. It is not one of those cases where any mechanical defect was there in the Machine which made it dangerous to operate with.
40. Moreover, the element of 'proximate cause' is also not substantiated. PW1 Usha Devi stated in her court testimony that after operating the Machine for about five minutes, she could not control it while turning, resulting in the unfortunate event with her. Barring that, no other detail of the accident has come to surface. As per the prosecution case, the injured was also not provided with the safety gear, however, she did not mention anything about the nonprovision safety equipment in her court testimony. The grievance raised against the accused persons is quite vague. Clearly, the incident does not constitute as the direct cause of the directions of the accused persons. It cannot be said in unequivocal terms that the incident could not have happened but for such directions of accused persons once the injured sat on the Machine. The circumstances surrounding the injured when she was operating the Machine are conspicuous by their absence on record. It is difficult to link the accident with the act or omission of the accused persons. In any case, the omission cannot be termed of such gross nature as to entail a penal liability on accused persons.
41. As a corollary, the basic constituents of Section 338 IPC are also not made out. It cannot be said that by giving directions to the injured to operate the Machine, the accused persons did any act rashly or negligently so as to cause grievous hurt to her. Again, no direct causation is manifest. As regards the omission to take order with Machine, the same is not proved on the grounds Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.07 16:09:21 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.18/21 discussed hereinbefore. It also needs to be emphasized that an omission would be covered within the offence of Section 338 IPC only if it is illegal, i.e. there is a failure to do legal duty. Elaborating the same in the case of P.B.Desai Vs. State of Maharashtra & Anr. (2013) 15 SCC 481, the Hon'ble Supreme Court held that: "31. Liability for an omission requires a legal duty to act; a moral duty to act is not sufficient. The duty may arise either from the offence definition itself or from some other provision of criminal or civil law. A duty arises from the former when an offence is defined in terms of omission. This is the situation where the legislature has made it an offence. A legal duty to act may also be created by a provision of either criminal or civil separate from the offence charged. For example, a duty under the Maharashtra Medical Council's Code of Ethics and Maharashtra Medical Council Act, 1965.
32. Since there is no moral difference between (i) a positive act and (ii) an omission when a duty is established, it is to be borne in mind that cases of omissions, the liability should be exceptional and needs to be adequately justified in each instance. Secondly, when it is imposed this should be done by clear statutory language. Verbs primarily denoting (and forbidding) active conduct should not be construed to include omissions except when the statute contains a genuine implication to this effect. Thirdly, maximum penalties applied to active wrongdoing should not automatically be transferred to corresponding omissions; penalties for omissions should be re thought in each case."
42. In light of the aforementioned observations, it was imperative for prosecution to show by way of cogent evidences that the accused persons had any legal duty, imposed by way of any law or contract, to oversee the operation of Machine by any person or in any particular manner. Nothing is produced on Digitally signed by BHARTI BHARTI GARG Date:
State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.19/21 GARG 2022.04.07 16:09:31 +0530 record to the effect that this was within the domain of duties of accused persons. Criminal liability cannot be fixed on accused persons on the basis of conjectures and surmises. The various loopholes in investigation coupled with the uncorroborated testimony of injured loom large in the mind of this court to not believe the prosecution case beyond the shadow of reasonable doubts.
43. The upshot of the foregoing discussion is that the prosecution evidence, both oral and documentary, including the surrounding circumstances is not of such sterile quality so as to lead to the only conclusion that the incident could not have happened but for the fault of accused persons only. The circumstances in which the incident happened have not been elaborated in a way so as to irresistibly call it as a proximate cause of the directions passed on by accused persons to injured. The investigation in the present case has been mostly shoddy. The testimony of injured witness does not inspire confidence so much as to believe her in the absence of corroboration. The prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. Several reasonable doubts have emerged in the narrative put forth by prosecution as analysed hereinabove. The basic ingredient of rashness or negligence has not been proved by prosecution so as to attract the offences under Sections 287/338 IPC in the instant case. The inescapable conclusion is that the accused is entitled to benefit of doubt.
44. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused persons, both the accused persons
1. Jai Kant Mishra S/o Bimbal Kant Mishra R/o 16A, Badiyal, Palam Village, New Delhi and 2. Bibhuti Bhagat S/o Kunj Bihari Bhagat R/o RZ 668/38, Gali no.18C, Sadh Nagar, Delhi are hereby acquitted of the offences Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.07 16:09:39 +0530 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.20/21 punishable under Sections 287/338 of Indian Penal Code, 1860.
Pronounced in open court in the presence of accused persons Digitally signed on 07.04.2022. BHARTI by BHARTI GARG GARG Date: 2022.04.07 16:05:55 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/07.04.2022
It is certified that this judgment contains twenty one pages and each page Digitally signed has been signed by the undersigned. BHARTI by BHARTI GARG GARG Date:
2022.04.07 16:06:03 +0530 Bharti Garg) MM09/South West District Dwarka Court/New Delhi/07.04.2022 State Vs. Jai Kant Mishra and Anr. CNR no. DLSW020011022015 Page no.21/21