Delhi District Court
Pramod Kumar Kushwaha vs State Of Nct Of Delhi on 5 September, 2018
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,
SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CA No. 265/2017
FIR No. 14/03
Pramod Kumar Kushwaha
S/o Sh. Sidh Gopal Kushwaha
R/o 245/6, Gali No. 7
School Block, Mandawali
Delhi. ...Appellant
Vs.
State of NCT of Delhi ...Respondent
Instituted on : 14.12.2017
Arguments concluded on : 17.08.2018
Decided on : 05.09.2018
Appearances: Sh. Rajesh Ridla, Ld. Counsel for the appellant.
Sh. Manish Rawat, Addl. PP for State.
Judgment
1. The present appeal is directed against the judgment dated 29.06.2017 passed by Ld. Metropolitan Magistrate against the appellant Pramod Kumar Kushwaha convicting him for the offence u/s 304 A IPC and also against the order on sentence dated 24.11.2017.
2. According to the prosecution, the incident had taken place on 09.01.2003 at about 10.50 p.m at ground floor, Page 1 of 16 Minto Road Hostel, Block No. 1, Delhi, within the jurisdiction of PS Kamla Market, where two employees of Bharat Bijli Ltd, namely Pramod Kumar Kushwaha (accused/appellant) and Indermani Sharma (deceased) were deputed to rectify the defective lift no. 1. During the process, Indermani Sharma (deceased) remained at the ground floor to check the lift and accused Pramod Kumar Kushwaha went to machine room situated at 12th Floor of the hostel building and while the deceased was checking the electrical contact points, the lift suddenly started moving upwards and deceased Indermani Sharma got trapped in between car of moving lift and the front wall of lift hoistway at ground floor. The lift operator of the hostel namely Ram Mehar, who was also present at the spot, switched off the main switch from the fire room and he went upstairs to inform accused Pramod Kumar Kushwaha that Indermani had got trapped in the lift but accused came down and fled from the spot. The lift operator Ram Mehar then called Fire Control Room and with the help of fire brigade lift was brought down and injured Indermani Sharma was taken Page 2 of 16 to the hospital. The injured Indermani Sharma was declared brought dead vide MLC Ex.PW4/A at LNJP hospital and thereafter postmortem was conducted. The first information report was lodged as per statement of lift operator Ram Mehar. The accused Pramod Kumar Kushwaha was arrested and after completion of investigation charge-sheeted vide FIR No. 14/03 for the offence punishable u/s304 A IPC.
3. The accused pleaded not guilty to the accusations explained to him u/s251 CrPC and claimed trial.
4. The prosecution examined 19 witnesses during the trial and important witnesses examined are as follows :
PW-1 Ram Mehar has been the lift operator at the hostel and eye witness to the incident in question. He has given detailed narration of the incident whereby deceased Indermani Sharma got struck in between the lift and the wall of the upper floor and received fatal injuries. He proved his statement Ex.PW1/A whereupon FIR was registered.
5. PW-4 Dr. Chaman Prakash, has proved the medical Page 3 of 16 record of deceased Indermani Sharma Ex. PW4/A.
6. PW5 Dr. Mukta Rani has deposed about post mortem report Ex.PW5/A.
7. PW6 K. L. Grover, Retired Inspector Electrical & Lifts has conducted inspection of the lift and the site on 11.01.2003 with Avinash Aggarwal Asstt. Electrical Inspector (PW7). PW6 has given his detailed report vide Ex.PW6/A.
8. PW8 Rajender Atwal, Station Officer, Fire Service, visited the spot on receipt of call about one person having been trapped in the lift. He deposed that lift was brought down to the ground floor with the help of lift operator Ram Mehar and the person who was trapped was removed to LNJP hospital where he was declared brought dead.
9. PW9 S. S. Tuli, Assistant Divisional Officer, posted at Connaught Place fire station has also given similar statement as given by PW8.
10. PW12 HC Shambu Dayal reached the spot on Page 4 of 16 receipt of information about the incident. He recorded statement of lift operator Ram Mehar and got the FIR registered.
11. The photographs of the spot of incident had been taken by PW-13 Ct. Shiv Raj.
12. PW-15 SI Harender Singh is the Investigating Officer of the case.
13. PW-16 Naveen Bhushan Batla was working as Manager with Bharat Bijli Ltd, he confirmed that deceased Indermani Sharma and accused Pramod Kumar Kushwaha were sent for repairing the lift at Minto Road hostel, block no. 1, Delhi whereby the incident had taken place and Indermani Sharma had expired.
14. PW-17 Ct. Jagdale has joined the investigation with IO/SI Harender Singh. He deposed that accused was apprehended at the instance of complainant Ram Mehar and was arrested vide memos Ex. PW1/B & C.
15. Prosecution witnesses have been cross examined Page 5 of 16 on behalf of defence.
16. After the closure of prosecution evidence, accused was questioned u/s313 CrPC wherein he pleaded innocence and false implication. Although, he admitted having visited the spot for the purposes of repairing the lift but stated that he asked Indermani Sharma not to go inside the lift and to remain at a distance and not to allow any other person to enter the lift. He himself went upstairs to machine room and manually moved the lift upwards. After ten minutes, lift operator Ram Mehar came to him and told him about Indermani Sharma having been trapped in the lift. According to the accused, he came downstairs and found the lift door closed and even there were no blood stains and he asked security guard about Indermani Sharma who pointed his finger outside the building. Accused then went to Gopal Dass Bhawan and waited for Indermani Sharma but he did not come. It is further contended by accused that his company did not provide any communication tool for the purposes of communication. No action was taken by his company about the incident.
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17. In defence, accused examined DW1 who has also been employee of Bharat Bijli Ltd. He has given the details of the procedure to be adopted for repairing the lift and further deposed that no communication device was provided to the employees by the company. The person who was on 12th floor at the time of moving of the lift could not have communicated with the person at the ground floor.
18. Accused Pramod Kumar examined himself as DW2 wherein he admitted having visited the site along with deceased Indermani Sharma for the purposes of repairing the lift. He further deposed that gate of lift was open and its power supply was disconnected; Inder Mani Sharma asked Ram Mehar to switch on the power of the lift; the said switch was installed in front of the lift in fire room; Ram Mehar switched on the power supply and lift came into the movement. Indermani Sharma asked him to go to the machine room to check power supply of landing gate and also directed him that in case there is no power supply in landing gate, to switch off the power Page 7 of 16 supply of the control panel and to take the lift upside upto 2-2½ feet by using machine brake. He further stated that he requested Inder Mani to sit at the main gate of the building and not to enter in the lift nor allow any other person to eaten therein. He further stated that as per the directions of Indermani, he went to 14 th floor of the building; there was no power supply in the landing door; he switched off the power supply in control panel and thereafter took the lift upwards by using manual brake for about 2-2½ feet. He further stated that no power supply was re-activated in machine; after 10-15 minutes, lift operator Ram Mehar came and told that person had got injuries. He further deposed that he came downstairs; Ram Mehar was shouting that a person had got injuries; he came to ground floor and saw nobody was present in front of the gate of the lift nor there were any blood stains. He further stated that he asked the security guard about his colleague Indermani Sharma, who told him by indicating that he had gone outside the building and he thought that Mr. Sharma had gone intentionally and he became helpless. He came to Page 8 of 16 market and telephoned to Mr. N. B. Batla, Maintenance Manager, who ordered him to go to Gopal Das Bhawan and wait for Indermani Sharma. He further stated that on next morning Mr. N. B. Batla told him that Mr. Sharma had expired; he reached at the office and narrated all the facts to Mr. N. B. Batla. Accused has been cross examined on behalf of prosecution.
19. Vide the impugned judgment Ld. Magistrate appreciated the facts and evidence of the case and came to the conclusion that there is sufficient evidence against the accused and prosecution has been able to bring home the guilt of accused beyond reasonable doubt. The accused has been held guilty for the offence u/s 304A IPC.
20. The order on sentence was given on 24.11.2017 whereby appellant /accused Pramod Kumar Kushwaha has been sentenced to simple imprisonment for a period of two years for the offence u/s304 A IPC. Accused has further been ordered to pay compensation amounting to Rs.1,40,000/- in default simple imprisonment for a period Page 9 of 16 of six months.
21. The appeal has been filed on the grounds that trial court has failed to appreciate the facts and circumstances of the case in a proper and legal manner. The death of deceased was accidental and not the result of rash and negligent act of the accused/appellant. The evidence of PW6 K. L. Grover has not been specific and it is not disclosed as to what kind of mal-operation was done by the appellant. Also the lift was inspected by PW6 on 11.01.2003 i.e. after two days of the incident. PW-1 complainant Ram Mehar could not tell the fault in the lift and it is clear that he was not aware about the operational mechanism of the lift. PW1 has not been the expert witness to point out the mal-operation in the lift. It is asserted that admittedly no communication device was available with the accused and therefore accused was not in a position to communicate with the deceased. The accused has deposed true and correct facts about the incident and he has to be relied upon being the competent witness.
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22. I have heard submissions as advanced by Sh.
Manish Rawat, Ld. Addl. PP for the State and by Sh. Rajesh Ridala, Ld. Counsel for the appellant. I have given due consideration to the rival contentions and also examined the trial court record.
23. In support of his case, Ld. Counsel for appellant has relied upon the following judgments :-
i). Jai Bhagwan Vs. State 2012 (1) JCC 314,
ii). State Vs. Kaptan Singh, 2008 Cr L.J. 1458,
iii). A. P. Raju Vs. State of Orissa, 1994 Law Suit (SC) 227,
iv). State Vs. Intezar, 2014 (8) LRC 255 (Del),
v). Sujit Biswas Vs. State of Assam, 2013 (5) LRC 133 (SC).
24. The charge against the applicant has been that he caused death of deceased Indermani Sharma as he has been negligent while processing the repairs of the lift at ground floor, Minto Road Hostel, Block No. 1, Delhi. It is an admitted position that accused Pramod Kumar Kushwaha and deceased Indermani Sharma have been Page 11 of 16 colleagues and were working for the same company Bharat Bijli Ltd. They both were deputed for the purposes of repairing the lift at the ground floor, Minto Road Hostel, Block No. 1, Delhi on 09.01.2003 and both of them went there together. It is also an admitted position that Indermani Sharma got trapped in the lift and due to the injuries he lost his life.
25. The issue remains as to whether accused has been negligent in handling the lift mechanism thereby causing the death of the deceased. It is evident from the facts and circumstances of the case duly proved on record that accused went upstairs to the machine room whereas deceased Indermani Sharma remained at the ground floor and while the deceased was checking the electrical contact points, the lift suddenly started moving upwards due to which deceased got trapped in between car of moving lift and the front wall of lift hoistway at ground floor. The statement of lift operator Ram Mehar has been clear and categorical and he is the crucial witness of the prosecution having directly witnessed the incident. The testimony of Ram Mehar clearly proves on record that Page 12 of 16 accused has been negligent as he started the lift from the 12th Floor from the machine room without giving prior intimation to the deceased. The accused was required to be careful and vigilant and had the responsibility to ensure that no one was present inside or near the lift when the same was being moved/started. The stand taken by accused that there were no means to communicate would not be justified to exonerate the accused from such serious act of negligence. The accused had the onus to properly coordinate with the deceased before moving the lift from the machine room. PW-6 K. L. Grover, has been an expert on the subject. He inspected the spot and the lift after the incident and gave his report Ex. PW6/A. According to his opinion, the accident had taken place because of mal-operation of the lift from the machine room by accused Pramod Kumar Kushwaha.
26. The prosecution evidence has been sufficient and cogent to prove the circumstances of the matter. Despite cross examination, defence has not been able to impeach the evidence of the prosecution. All the Page 13 of 16 witnesses examined by the prosecution are natural, probable and independent witnesses and no motive can be attributed to them for giving false evidence or to create false record against the accused. The prosecution witnesses have no reason to falsely implicate the accused.
27. I have also considered the defence pleas taken by accused. There appears no substance particularly when accused has failed to show any justification whereby he left the spot after the accident without even helping his colleague who got struck in between the lift and the wall. The plea taken by the accused that he came down and security official pointed out towards the gate meaning thereby that deceased had left, has no justification. The conduct of the accused in fleeing the spot of occurrence further shows that he committed gross negligence in handling the lift mechanism and did not even make effort to save the deceased.
28. The prosecution evidence is clear consistent and credible. The case of the prosecution stands established Page 14 of 16 beyond reasonable doubt.
29. On examining the impugned judgment, I find that judgment is well written and supported with due reasoning. The facts and evidence have been appreciated in a proper and logical manner. There is no reason to interfere with the judgment of Ld. Magistrate. I therefore, uphold the judgment of conviction dated 29.06.2017.
30. Coming to the issue of sentence, the appellant/accused has been awarded imprisonment for a period of two years besides compensation. Considering that appellant/accused is 46 years of age, sole bread winner of his family consisting of his wife and two children, and that he has already faced ordeal of trial for a period of 14 years, I feel that it would meet the ends of justice, if sentence of imprisonment is reduced and accordingly I reduce the sentence of imprisonment to one year. The amount of compensation would remain the same as also the period of imprisonment in case of default.
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31. The appeal is disposed of in aforesaid terms. The appellant is taken into custody to serve out the sentence. The conviction warrants be prepared accordingly.
32. Copy of this judgment be given to convict and be also sent to trial court along with record and be also sent to jail superintendent.
33. Appeal file be consigned to record room. ANNOUNCED IN THE OPEN COURT ANJU BAJAJ CHANDNA on 05.09.2018 Special Judge-CBI (PC Act)-06 Tis Hazari Courts/Delhi Page 16 of 16