Delhi District Court
State vs Satya Prakash on 8 May, 2024
Cr Case No. 536589/2016
FIR No. 279/2004
PS Shalimar Bagh
State vs. Satya Prakash
IN COURT OF METROPOLITAN MAGISTRATE 07,
(NORTH-WEST DISTRICT) ROHINI COURTS, DELHI.
Presided over by: Ms. Ritika Kansal, DJS.
Cr. Case No. : 536589/2016
Case ID No. : DLNW02-000268-2004
FIR no. : 279/2004
Police Station : Shalimar Bagh
Section(s) : 279/304A of Indian Penal Code, 1860
In The Matter of :
STATE
Vs
SATYA PARAKSH
S/o Sh. Bal Kishan
R/o House No. 297,
First Floor, Shalimar Bagh Village,
Delhi ...Accused
1. Name of Complainant Pratap Singh
2. Name of Accused Satya Prakash
3. Offence complained of U/s. 279/304A of Indian Penal Code,
1860
4. Date of Incident 01.04.2004
5. Date of Institution of case 13.10.2004
6. Plea of Accused Not Guilty
7. Date of Reserving Order 27.04.2024
8. Date of Pronouncement 08.05.2024
9. Final Order Acquittal
FACTUAL MATRIX
1. On the morning of April 1st, 2004, around 09:00 a.m., at MCD Waste House No. 32/7, near the office of the Registrar, Service lane, RU Block, Pitam-
Page 1 of 22 Cr Case No. 536589/2016 FIR No. 279/2004PS Shalimar Bagh State vs. Satya Prakash Pura, Delhi, (hereinafter referred "MCD waste house") an unfortunate incident occurred resulting in the death of Nand Kishore (hereinafter also referred as "deceased"). Deceased was running a tea stall behind wall of MCD waste house. He was fatally injured when he became trapped under the collapsed wall of the MCD waste house. According to the prosecution, at the time and place of the incident, the accused, Satya Prakash, was present and operating a JCB bearing registration number DL1M0126 (hereinafter referred to as "the JCB loader machine" or "the JCB"). Alongside the accused, another individual, Pratap Singh, was also present with his dumper. The accused was engaged in loading garbage into the dumper using the JCB. It is alleged that during this operation, the accused, operating the JCB at a high speed, lost control of the machine, causing its blade to strike the wall, which led to the collapse of the MCD wall onto the other side. As such it has been alleged that accused Satya Prakash has committed offences punishable under section 279/304A of Indian Penal Code, 1860 (hereinafter also referred to as "IPC").
2. Conversely, the defence contends that the wall was already in a severely dilapidated condition and collapsed independently of any action by the accused. The defence maintains that there are no eyewitnesses to the incident, and emphasizes that the Municipal Corporation of Delhi (MCD) had been already aware about the wall's precarious state through a complaint; however, MCD failed to take any corrective measures. Additionally, it is argued that no damage to the JCB was observed during its mechanical inspection post-incident.
3. Case of the prosecution unfolded through the charge-sheet filed u/section 173 of Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.") is as under:
(a) The information regarding the incident was conveyed by Ct. Lalu (belt no. 1726/PCR) to the Police Station (PS) vide a PCR call.Page 2 of 22 Cr Case No. 536589/2016 FIR No. 279/2004
PS Shalimar Bagh State vs. Satya Prakash Same was registered at the Police Post (PP), Pitampura at around 09:10 a.m., vide Daily Diary (DD) No. 14 dt. 01.04.2004.
(b) The DD No. 14 was marked to SI Gyan Chand, who along with Ct.
Parama Ram reached at the spot. Upon reaching at the spot, they found JCB loader machine, noticed that the wall had collapsed on the other side, and the deceased was trapped under the collapsed wall.
(c) The deceased was immediately moved to the Babu Jagjivan Ram Hospital, Jahangir Puri through PCR vehicle.
(d) SHO also reached at the spot. It was found that the accident had occurred due to the negligent handling of the JCB loader machine and due to its blade having struck against the MCD waste house wall. It was found that driver did not take enough care to remove the persons near the waste house before operating the JCB.
(e) Driver was found present at the spot. He disclosed his name as Satya Prakash. No eye-witness was found at the spot.
(f) Thereafter, leaving behind Ct. Param Ram at the spot, SI Gyan Chand, the Investigating Officer (hereinafter as "IO"), proceeded to BJRM Hospital. In the hospital, he collected the MLC No. 14685/03. The deceased was found unfit for the statement. No eye- witness was found at the hospital.
(g) IO prepared rukka on the basis of scene of crime as observed by him. It was handed over to Ct. Parma Ram for registration of FIR. Constable Parma Ram left the spot at around 11:30 a.m. with rukka and FIR against the accused was registered at 11:50 a.m. with his name mentioned in column no. 7. FIR was registered by Page 3 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash Duty Officer/HC Subhash Chand. Constable Parma Ram came back to the spot, he handed over the copy of the FIR and original rukka to the IO.
(h) Thereafter, one eye witness, namely Pratap Singh was found at the spot. The eye witness narrated the incident. IO recorded his statement. As per his statement the incident had occurred due to negligent driving of the JCB by the accused and its blade having struck the wall, which was already weak. Upon his instance and identification, the accused was arrested.
(i) In the meanwhile, vide DD No. 31 dt.01.04.2004, an information was received that the injured Nand Kishore has succumbed to his injuries. IO added section 304A IPC during investigation.
(j) The post-mortem of the deceased got conducted. After the postmortem, his dead body was handed over to his relatives. IO collected documents regarding the duty of accused by the MCD. The JCB and the material underneath collapsed wall were seized.
4. After completing the investigation, accused was charge-sheeted for having committed offences punishable u/sections 279/304A of IPC.
AT THE STAGE OF TRIAL
5. Accused was summoned to face trial. On his appearance, in compliance of section 207 of Cr.P.C., accused was supplied with a copy of the charge-sheet. Vide order dt. 23.05.2007, accused was given a notice u/section 251 Cr.P.C. for having caused death of Nand Kishor by driving the JCB loader machine in a rash and negligent manner on a public way, punishable u/sections 279/304A of IPC. Accused pleaded his innocence and the trial commenced.
Page 4 of 22 Cr Case No. 536589/2016 FIR No. 279/2004PS Shalimar Bagh State vs. Satya Prakash PROSECUTION EVIDENCE
6. The prosecution had examined as many as 10 witnesses and relied upon various documents to establish the guilt of the accused. It had cited 17 witnesses in its list of witnesses. Examination of Duty Officer/HC Subhash Chand, Dr Nirupama, Dr Rajesh Maurya and Dr. Deepak was dispensed with in view of the statement (dt. 13.11.2018) of the accused recorded under section 294 Cr.P.C. Further, serval witnesses remained untraceable. PW Anup Kumar was reported to have retired from MCD and was not found. Similar report was received with respect to PW ASI Satvir and PW Sadhana. All the said PWs were again summoned through DCP office and they were again reported unserved. Considering the reports, their names were dropped from the list of witnesses vide order dated 03.01.2024. The witnesses examined during trial and documents relied upon by prosecution to bring home the guilt of the accused as followings:
ORAL EVIDENCE PW-1 :- Ct. Parma Ram (Accompanied IO & Rukka Carrier) PW-2 :- Pratap Singh (Eye-Witness) PW-3 :- Sanjay Soni (Relative of deceased) PW-4 :- Retd. ASI/Tech Devender (Expert Witness) PW-5 :- Dr. Neeraj Chaudhary (Expert Witness) PW-6 :- Inspector Gyan Chand (IO) PW-7 :- Retd. Sanitary Inspector Satveer Rana (Eye-Witness) PW-8 :- Retd. SI K.P. Singh (2nd IO) PW-9 :- ASI Rakesh Singh (Formal Witness) PW-10 :- Nanak Chand (Photographer) Page 5 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash DOCUMENTARY EVIDENCE
1. Ex. PW-1/A & Rukka Ex. PW-6/A (two different identification number given to same document)
2. Ex. PW-1/B Photograph of the spot
3. Ex. PW-1/C Photograph of the spot
4. Ex. PW-1/D & Arrest Memo of Accused Ex. PW-2/A (two different identification number given to same document)
5. Ex. PW-1/E Seizure Memo of JCB Loader Machine
6. Marked "A" Statement u/section 161 of Cr.P.C of Pratap Singh
7. Ex. PW-2/B Personal Search Memo
8. Ex. PW-3/A Dead Body Identification Memo
9. Ex. PW-3/B Dead Body Handing Over Memo
10. Ex. PW-4/A Request Letter from IO for mechanical Inspection of JCB
11. Ex. PW-4/B Mechanical Inspection Report
12. Ex. PW-5/C MLC No. 14685
13. Ex. PW-6/B Seizure Memo of Driving Licence
14. Ex. PW-6/C Seizure Memo of Articles found under collapsed wall
15. Ex. PW-6/D Site Plan
16. Ex. PW-6/E Movement Register of the JCB in MCD Record Page 6 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash
17. Marked- "X" Statement u/section 161 of Cr.P.C of PW-7 DOCUMENS ADMITTED U/SEC 294 Cr.P.C.1. Ex. PX-1 DD No. 14 2. Ex. PX-2 DD No. 31
3. Ex. PX-3 FIR
4. Ex. PX-4 MLC No. 14685
5. Ex. PX-5 PM Report of deceased.
7. Upon submission of Ld. APP for the state, the prosecution evidence was closed vide order dt. 14.03.2024. Thereafter, the accused was given an opportunity to explain the incriminating facts and circumstances against him in the present case and his statement u/section 313 Cr.P.C. was recorded separately. Accused has chosen not to step into the witness box. Upon statement of accused to the effect that he doesn't wish to lead defence evidence; the defence evidence was closed vide order dt. 08.04.2024 Final arguments have been addressed by Ld. APP for the state and Sh. S.S. Sachdeva, Ld. Counsel for the accused.
TESTIMONIES OF WITNESSES
8. Before proceeding further, it would be apt to briefly glance through testimonies of prosecution witnesses.
FORMAL WITNESSES
9. Sanjay Soni who identified the dead body of the deceased has been examined as PW-3. Dr. Neeraj Chaudhary who had identified the signatures of Dr. Nirupama on the MLC of the deceased has been examined as PW-5. The factum that the death of the deceased is result of injuries suffered by him during Page 7 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash collapsing of the wall is not in dispute. Retd. SI K.P. Singh has been examined as PW-8. He is the second Investigating Officer of the case; he recorded the statement of one photographer and filed the charge sheet in the present case. ASI Rakesh has been examined as PW-9. He had accompanied the IO to the mortuary. One Nanak Chand, who was called to prove the photographs of the spot, has been examined as PW-10. All the above-mentioned witnesses except PW-10, have not been cross-examined by the defence despite opportunity. Their testimonies have no bearing on the question of guilt or innocence of the accused. Hence, no discussion is warranted upon their testimonies. As far as PW-10 is concerned, the said witness has been examined after around 20 years of the incident. Quite naturally, during his chief-examination, PW-10 didn't talk about getting the photographs of the spot clicked. Ld. APP for the State also didn't take proactive steps and PW-10 was not confronted with the photographs on record or with any previous statement. During his cross examination, PW-10 admitted that he had no personal knowledge of the case.
MATERIAL WITNESSES
10. Ct. Parma Ram, who accompanied the IO at this spot during investigation has been examined as PW-1. He testified that he was posted as Constable at Police Post, Pitampura and was on emergency duty from 08:00 a.m. to 08:00 p.m. He received information vide DD No. 14 and, along with IO/SI Gyan Chand, he had proceeded to the spot. Upon reaching at the spot, he found one JCB loader machine and one dumper. He also noticed that the wall of the MCD Waste House was in broken condition and deceased Nand Kishore was trapped under the said wall. The injured was immediately moved to the hospital through PCR van. SHO and ICPP also arrived at the spot. The driver of the dumper was found present who identified himself as Pratap Singh. Pratap Singh narrated that during loading of the garbage, the wall of the MCD Page 8 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash Kudaghar (Waste House) was hit by JCB, which was being operated by accused, resulted in collapsing of the wall. IO prepared rukka. Same was handed over to him (PW-1) for registration of FIR. After the registration of FIR, PW-1 returned to the spot. IO called a photographer who clicked the photographs of the spot. IO arrested the accused at instance of Pratap, seized the JCB loader machine and recorded his (PW-1) statement. The witness identified the accused and the spot during trial. The said witness was crossed-examined by the Ld. APP for the state and leading questions were put to the witness. PW-1 then acknowledged that Pratap Singh arrived at the site post FIR registration, correcting his earlier testimony where he mistakenly claimed to have met the witness before the FIR was registered. He conceded that MCD officials were at the site and their statements were recorded by the IO. During cross-examination by the defence, PW-1 stated that he arrived at the scene within 5-7 minutes and stayed for approximately an hour. He affirmed that the eyewitness's statement was recorded in his presence whom he met after registration of FIR and also acknowledged the absence of plaster on the wall that had collapsed.
11. Pratap Singh, portrayed as an eyewitness by the prosecution, was examined as PW-2 but he did not fully support the prosecution on critical aspects of the case. He testified that he works as a driver for the Municipal Corporation of Delhi (MCD) and had parked his dumper, registered as DL-1G- 1803, near the incident site at about 8:30 a.m. to load garbage. He then left to get tea at a nearby stall while MCD officials were present with the JCB machine. Upon returning, he observed that the wall of the MCD Waste House had collapsed, also bringing down a tea stall situated behind the wall. He noted that the JCB was operated by the accused at that time. After the collapse, MCD officials and the public gathered to rescue the injured, who was still alive and subsequently taken to the hospital. PW-2, however, could not recall who Page 9 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash transported the deceased to the hospital. During cross-examination by the Ld. APP, PW-2 confirmed that his statement had been recorded by the police and read back to him. He acknowledged that the accused was operating the JCB but clarified that he did not witness the wall's collapse since he was away drinking tea. He could not specify the speed at which the JCB was operating. When confronted with extracts from his earlier statement Marked as "A," he denied seeing the wall collapse or participating in the rescue efforts. He also refuted claims that he frequented the same tea stall crushed by the wall. Furthermore, PW-2 testified about the subsequent arrest of the accused, including his personal search and the preparation of the arrest memo and personal search memo, identifying his signatures on these documents as an attesting witness. He confirmed the injured was transported to the hospital by ambulance, identified the accused during the trial. Despite suggestions to the contrary, he denied being untruthful or influenced by the accused. During his cross-examination by the defence, PW-2 mentioned that he had tea at the nearby Dhaba Sardar Ji and upon returning, saw the ongoing rescue efforts. He admitted to not witnessing the accident itself and professed ignorance about the nature of the documents signed by him, and that he has no knowledge regarding the speed of JCB machine.
12. Retired ASI/Tech Devendra Kumar has been examined as PW-4, being the expert witness, who mechanically inspected the JCB loader machine. In his report, no fresh damages were found on the said vehicle. The witness was not cross examined by the defence despite opportunity.
13. Another important witness is Inspector Gyan Chand, who is the first Investigating Officer of the present case. He has been examined as PW-6. He had deposed on similar lines as PW-1 Ct. Parma Ram. He further testified about seizing the driving license and the other documents; seizing the articles found Page 10 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash under the collapsed wall; meeting eye witness, namely Pratap Singh; arresting accused at behest of PW-2/Pratap; preparation of site plan at instance PW-2/ Pratap; depositing the case property in the Malkhana; releasing the accused on bail; receiving information regarding death of Nand Kishore; getting the dead body of deceased preserved in the BJRM hospital; the post-mortem of the deceased; handing over the dead-body to the relatives of the deceased, and JCB being mechanically inspected by PW-4. He also testified about the collecting record of the movement of the JCB from the MCD officials and about recording statement of the witnesses. PW-6 identified the accused, the place of incident and also testified that he can identified the JCB loader machine. During his cross-examination by defence, PW-6 admitted that he is not the eye witness of the case. He denied suggestions of false implication of the accused and culpability of accused in the accident in question.
14. Retired Sanitary Inspector, Satveer Singh Rana, who was also purportedly present at the spot at the time of the incident have been examined as PW-7. The said witness has not supported the prosecution version. He testified about his presence, that of Pratap Singh with the dumper and of accused with one JCB machine. He testified having seen the accused picking garbage from waste house and putting it in dumper. He recounted hearing a noise that the wall had collapsed, prompting him and some bystanders to rush towards the spot. He denied having witnessed the incident in question and testified that somebody had called at 100, police arrived at the spot and the injured was taken by PCR van. The witness identified the accused and stated that he can identify the JCB loader machine. PW-7 was cross examined by the Ld. APP for the state. During his cross-examination, PW-7 was confronted with his previous statement Marked "X" which was shown to the him and read over to him. PW-7 denied having made any such statement. He denied that Nand Kishore was running a tea stall near MCD Waste House or that he knew the deceased prior to Page 11 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash the incident. He further denied that accused drove the JCB fast speed to enter MCD waste house or that due to fast speed, accused lost control over JCB or that the blade of the JCB hit against the wall, which collapsed over deceased Kishore. He denied that accused being apprehended in his presence. He admitted that the dumper was filled with garbage and on his instructions, same was sent to the dumping site. During his cross-examination by the defence, the PW-7 stated that he was about 10-12 meters away from the spot. He admitted that the accident had not occurred in his presence and that he had not signed on the personal search memo of the accused. He admitted that the JCB was operated without any rashness and denied that the accident resulted due to accused's negligence.
STATEMENT U/SECTION 313 CR.P.C.
15. The accused has chosen not to step into the witness box. During his statement under section 313 CRPC, he acknowledged his presence at the scene and confirmed that he was operating the JCB; he also acknowledged the presence of Pratap with a dumper at the location. However, he denied that the accident was a result of his negligence. He explained that the wall collapsed spontaneously without any interference from him shortly after he had started operating the JCB. He further stated that the wall was already unstable, that Satveer Singh Rana had previously reported this issue to the MCD, but no remedial actions were undertaken. He conceded awareness of the deceased and his tea stall situated behind the wall. He confirmed remaining at the site after the incident until the police arrived. He denied any responsibility for the incident, asserting that he was made a scapegoat.
CONTENTIONS & ARGUMENTS
16. It is argued on behalf of accused by Ld. defence counsel that in this case accused is falsely implicated. It is also argued that there is no eye-witness of the Page 12 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash incident, material witnesses have not supported the prosecution version. It is also argued that the wall was already in dilapidated condition which has fallen without any intervention by the accused, fact which stands substantiated from the mechanical inspection report which don't mention any damages on the JCB. It is argued that admittedly accused remained at the spot even after the accident which also points towards his innocence. It is also argued that there are many material inconsistencies in prosecution's version. Hence, it is prayed that accused is entitled to be acquitted in this case.
17. Per contra, Ld. APP has argued that prosecution have been able to establish identity of accused, his presence, presence of JCB machine, presence of PW-2 and PW-7 at the spot. The factum of death of Nand Kishor having occurred due to injuries suffered during incident has not been questioned by the defence and hence same also stands proved. It is argued by the prosecution that the sequence of events, location of JCB on one side of the wall and wall collapsing on the other side- clearly demonstrate negligence and rashness of accused. It is also argued that notwithstanding PW-2 and PW-7 turning hostile, all the ingredients of offences charged are fulfilled and that the inconsistencies pointed out by the Ld. Counsel are only minor and doesn't undermine the prosecution's case.
RELEVANT LEGAL PROVISIONS
18. Before proceeding further, it is pertinent to refer to relevant sections:
Section 279. Rash driving or riding on a public way-
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may Page 13 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash extend to six months, or with fine which may extend to one thousand rupees, or with both."
304A. Causing death by negligence-
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
19. A bare perusal of section 279 r/w section 304A IPC reveals that to establish the guilt of person accused of said offences, following needs to be proved:
a. That the accused was driving a vehicle on a public way and;
b. That the said vehicle was being driven by him in a rash and negligent manner and;
c. That rash and negligent driving has resulted into death of victim.
20. In simpler words, it needs to be proved that rash and negligent driving on part of accused is the direct and proximate cause of death of victim. Thus, first and foremost the identity of accused and offending vehicle is to established. Thereafter, prosecution is also required to establish the manner of driving and eventually establish causation between manner of driving and death of victim. As far as identity of accused and offending vehicle is concerned, same can be proved by eye-witness account and/or by traffic surveillance footage/CCTV Camera. Similarly, manner of driving can also be proved in manner aforesaid and additionally also with aid of damage assessment of offending vehicle (in form of mechanical inspection report). Causation of death can be established Page 14 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash with aid of MLC and PM report of deceased and injuries mentioned therein should align with nature of accident as described by the eye-witnesses.
EVALUATION
21. Admittedly, there is no CCTV footage is available with prosecution. From the perusal of record, it is evident that certain facts are not in dispute which are as follows: firstly, the time and place incident i.e. 09:00 a.m. at MCD waste house no. 32/7, RU Block, Pitampura; secondly, the factum of deceased victim losing his life as result of collapsing of wall; thirdly, the presence of accused, JCB machine, dumper at the spot; fourthly, recording of FIR against the accused; and lastly photographs of the spot. Not only that, the identity of accused as the driver of the JCB has stands admitted by accused himself.
22. As far as the manner of driving is concerned, there is no direct evidence of that.
23. PW-7 have denied having witnessed the accident. He denied giving any statement to the IO. But he admitted his presence near the spot. His presence near the spot has not been challenged by the defence. No negative suggestions were put to the said PW. Thus, his presence near the spot stands proved from the record. The said witness had testified about police arriving at spot, him rushing to spot to help injured, injured being taken by PCR van but he hadn't said a word about recording of his statement by police or any steps taken by police after the accident. IO in his testimony is silent on meeting PW-7 or recording his statement. PW-1 is also silent about meeting about PW-7 at the spot. Signature of said witness are not reflected on any documents relied upon by the prosecution. Record is silent regarding time of disappearance of PW-7 from the spot and time & place of recoding of his statement. Hence, from record, testimony of PW-7 appears to be creditworthy.
Page 15 of 22 Cr Case No. 536589/2016 FIR No. 279/2004PS Shalimar Bagh State vs. Satya Prakash
24. PW-2 have testified about his presence at the spot before and after the accident. On this aspect, his testimony stands corroborated from the testimony of PW-7, PW-6 and PW-1. Accused himself had admitted presence of PW-2 at the spot. PW-2 admitted having given a statement to police, but he denied having witnessed the accident. When confronted with portions of his previous statement (wherein he purportedly stated that JCB was operated negligently by accused, who drove it at fast speed, lost its control and blade of JCB struck against the wall causing it to fall on the other side), he denied that portion of statement but didn't offer any explanation for changing his stance. No explanation was sought from him by ld. APP for the State. The testimony of PW-2 is silent on the sequence of events after deceased was taken to the hospital i.e. whether & for how long he remained at the spot, when he returned at spot and when and where his statement came to be recorded by the police. As per PW-7, since the dumper driven by PW-2 was full with garbage, he had directed it to be removed to the pit. If his testimony is to be believed, dumper shouldn't have been found at the spot. Further, though PW-2 admitted having signed the arrest memo and personal search memo, during his cross- examination, he professed his ignorance on the nature of the documents signed by him. Given his prior acquittance with the accused and MCD officials being a MCD driver, the possibility of a motivated statement and testimony cannot be ruled out. Thus, on material aspect, i.e. having witnessed the accident, the PW-2 is found to be unreliable.
25. There is ambiguity in the record with respect to availability to any other eye-witness at the spot. PW-6 and PW-1 have testified that they had reached at the spot within 5-7 minutes of incident, had met PW-2 after registration of FIR, who narrated as to how accident had occurred and implicated the accused. In rukka (a document which is prepared prior to FIR), it has been mentioned that no eye-witness was found at the spot, though in the rukka it has been mentioned Page 16 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash that the JCB was driven negligently due to which its blade struck against the wall. PW-1 and PW-6 have not stated that anywhere that when they reached at the spot, blade of JCB was struck in the debris of collapsed wall or the debris of collapsed wall were found on the JCB blade. PCR call form is not on record. PCR caller has not been examined. Thus, if PW-2 was absent from the spot when PW-1 and IO/PW-6 had arrived, there is no explanation for the conclusion reached upon by the IO in the rukka.
26. It is to be seen whether the fact that the JCB was operating in close proximity to wall just before it collapsed, awareness of accused about wall's condition and presence of deceased behind the wall, collapsing of wall on the other side, taken together are sufficient enough to draw a presumption of rashness or negligence of the accused. It has been held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as Page 17 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash a logical conclusion rather than providing an outright demonstration thereof.1 In Ravi Kapur (supra), the Hon'ble Court stated the following elements of this doctrine:
• The event would not have occurred but for someone's negligence.
• The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
• The accused was negligent and owed a duty of care towards the victim.
27. In Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh2, it was held by Hon'ble Supreme Court that the principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. In a similar elucidation of the doctrine of Res Ipsa Loquitur, Hon'ble Supreme Court in one of its earlier judgements3 made following observations:
"19. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may 1 Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 2 AIR 2000 SC 2511 3 Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 Page 18 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which "tell their own story" of being offsprings of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on collision on the wrong side of the road."
"29 However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences under Section 114, Evidence Act, from the circumstances of the particular case, including the Page 19 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favor of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability, as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence.
30. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt."Page 20 of 22 Cr Case No. 536589/2016 FIR No. 279/2004
PS Shalimar Bagh State vs. Satya Prakash
28. Coming to the facts of the case, it is clear that the accused had control over the JCB. However, besides that prosecution was also required to prove that the wall's collapse was directly due to the JCB's operations and was not result of other factors like the possible pressure from garbage or the inherent instability of the wall. For said purpose, the prosecution could have led evidence to establish that the wall's collapse is an event that ordinarily does not happen without negligence. Here, expert witnesses (who might have been called to inspect the site) could have provided crucial insights and clarified whether the type of damage to the wall was consistent with being hit by a heavy machine or could have resulted from other factors like inherent structural weaknesses. However, no such person has been cited witness by prosecution. Further, no fresh damages were reported on the JCB. The mechanical inspection report is also silent whether any residual debris from the wall were found on the JCB blade. Had the JCB blade hit the wall, it was natural that some debris must have been deposited on the blade. In absence of any such material, it cannot be said that wall would not have collapsed except due to actions of accused. Thus, rashness or negligence on part of accused can not be implied making use of the doctrine of Res Ipsa Loquitur.
CONCLUSION:
29. It is to be borne in mind that criminality cannot be presumed. The same has to be established by the prosecution based on cogent material. Here, it is pertinent to refer to the observations of the Hon'ble Supreme Court given in the case of death in a road accident.4 The relevant part of the judgment is reproduced hereinafter below for ready reference:
"...In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused 4 State of Karnataka v. Satish, (1998) 8 SCC 493 Page 21 of 22 Cr Case No. 536589/2016 FIR No. 279/2004 PS Shalimar Bagh State vs. Satya Prakash always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence"
could be drawn by invoking the maxim "res ipsa loquitur"...."
30. In light of the legal principles and facts discussed above, this court is of the opinion that the prosecution failed to discharge the burden of proof beyond a shadow of a reasonable doubt. There is dearth of sufficient material against accused. Hence, he is entitled to benefit of doubt. Resultantly, the accused, SATYA PRAKASH S/o Bal Kishan, is hereby ACQUITTED of the offences punishable under Section 279/304A of the Indian Penal Code, 1860.
Pronounced in the open Court on this 08.05.2024 (Ritika Kansal) MM-07 (North West) Rohini Courts, New Delhi.
It is certified that this judgement contains total 22 each page signed by me.
(Ritika Kansal) MM-07 (North West) Rohini Courts, New Delhi.
08.05.2024 Page 22 of 22