Delhi District Court
State vs Sanjeev Jayaswal @ Sonu on 22 December, 2023
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, NEW DELHI.
FIR No.: 437/2014
Offence U/s 287/338 IPC
Police Station: Anand Parbat
Cr. Case No. 69352/2016
CNR No. DLWT02-007647-2015
In the matter of
STATE
Vs.
SANJEEV JAYASWAL @ SONU .......ACCUSED
1.Name of the Informant: Ajay Kumar Gautam 2. Offence Complained Section 287/338 IPC of: 3. Date of Commission of 24.08.2014 Offence: 4. Name of Accused: Sanjeev Jayaswal S/o Sh. Dwarka Prasad, R/o House no. 27, Village Poorapandey, PS Atraulia, Distt. Azamgarh, U.P. 5. Plea of Accused Not Guilty 6. Date of institution of 23.05.2015 case: 7. Date of pronouncement 22.12.2023 of Judgment: 8. Final Order: Acquittal. Argued by: Sh. Arvind Dahiya, Learned APP for the State.
Sh. Kaushal Kishore Mishra, Learned Counsel for the Accused.
FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
1/24 2023.12.22
16:29:40 +0530
A. BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly put, the facts of the case as per Prosecution are that on 24.08.2014 at around 10:00 A.M. at J-82, Taaliwali Basti, Gali no. 10, Anand Parbat, Delhi, within the jurisdiction of PS Anand Parbat, accused had knowingly or negligently omits to take such order with machinery installed in his factory which is sufficient to guard against any probably danger to human life for such machinery and by the abovesaid negligent act accused caused grievous injury on the person namely Atul. Thereafter, FIR was registered under Section 287/338 IPC and after completion of the investigation, chargesheet was filed in the Court. This Court then took cognizance of the offences and the accused was summoned accordingly. The copy of the charge-sheet and annexed documents in compliance of Section 207 CrPC was supplied to the accused.
2. The Charge was framed against the accused for offence punishable under Section 287/338 IPC on 07.03.2017 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the trial.
PROSECUTION EVIDENCE
3. In Prosecution evidence, the Prosecution has examined 09 witnesses. Accused did not dispute the registration of FIR Ex. AD-1 alongwith certificate u/s 65-B of Indian Evidence Act and FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed SHUBHAM by SHUBHAM 2/24 DEVADIYA DEVADIYA Date: 2023.12.22 16:29:48 +0530 endorsement on rukka Ex. AD-2, statement u/s 164 Cr. P.C. in respect of Atul Ex. AD-3 without admitting the contents therein u/s 294 Cr.P.C. The testimony of witnesses is being reproduced as follows:
(a) PW-1/Sh. Ajay Kumar Gautam (complainant) was examined and deposed that he did not remember the date of incident but it was 3-4 years ago. The day was Sunday. On that day, his son went outside the house for pee. After going pee, when his son was going backside the house, accused called his son and asked him for some work but his son Atul refused to do. Thereafter, accused Sanjeev Jayaswal pushed his son and due to which his left hand three fingers crushed in the power press machine. He correctly identified the accused. It is further submitted that his daughter namely Sindhu called him and told him about the incident. He further submitted that he came to know about this incident after two hours as his shop was at a long distance from the place of incident. Thereafter, he went to the RML Hospital where treatment of his son was going on. The said witness further deposed that his wife told him that police officials had visited the hospital and made enquiries. He was cross-examined by Ld. APP for State. During his cross-examination, said witness stated that Police officials did not record his statement. He admitted that he made a complaint at police station Anand Parbat on 30.08.2014. He further admitted that the date of incident was 24.08.2018. He further admitted that his wife Sumitra and one lady Radha had taken his son to Hospital. Vol. Smt. Radha was the landlady of the factory. He FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA 3/24 DEVADIYA Date:
2023.12.22 16:29:58 +0530 further admitted that the accused is the owner of the factory where the incident happened. He further admitted that the power press machine was owned by accused. He further admitted that his son had become permanent disable as his three fingers of left hand are crushed in the abovesaid machine. He denied that accused had switched on his power press machine with intention to kill my son as a result his three fingers of left hand crushed in the machine on account of negligent act of accused. He admitted that police officials seized / sealed the power press machine Ex.PW1/A bearing my signature at point A. He denied that the site plan was prepared at the instance of me and my son. He further denied that accused was arrested and released on police bail. He admitted that the factory was taken on rent from Radha Devi by accused. He further admitted that he had given complaint Ex.PW1/B. He was duly cross-examined by Ld. defence counsel. During his cross-examination, the witness stated that he does not know whether the fact that accused called his son and asked him for some work which his son refused to do and therefore, accused pushed his son and due to which his three left hand fingers crushed in the power press machine is mentioned in his complaint or not. He denied the suggestion that accused Sonu @ Sanjeev had nothing to do with the injuries allegedly caused to his son. He further denied the suggestion that accused had never called his son to his factory. He admitted that he had not seen the incident. He denied the suggestion that the machine was not seized in his presence. He denied the suggestion that accused had not pushed his FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA 4/24 DEVADIYA Date:
2023.12.22 16:30:06 +0530 son.
(b) PW-2/Master Atul (son of complainant). The witness stated that around seven years back, one Rakesh Bhaiya called him at Hawan in the Factory in the Gali in which they reside and he went to the factory alone. The witness pointed out the accused Sonu @ Sanjeev Jaiswal and correctly identified him and told that one known person of accused asked him to lift some articles in the factory and when he refused to lift the articles lying in the factory, the said person which was known to accused Sonu @ Sanjeev Jaiswal pushed him on the Power Press Machine, due to which his hand came in the Machine and his three fingers were chopped in that.
Thereafter, he started crying and on hearing his voice, his mother came to him and had taken him to the hospital. He got medical treatment in the hospital. His mother was asked to sign some documents in the hospital. The witness was crossexamined by Ld. APP for State. During his crossexamination by Ld. APP, the witness admitted that he had came to Court to give his statement before the Magistrate in the year 2014 which is MarkA. He does not remember the exact month or year in which he sustained injuries. Accused Sonu did not ask him to come at the factory and it was only the person known to accused who called him in the factory. He denied the suggestion that the accused Sonu alongwith the other known persons of him called him at the factory. He voluntarily FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed 5/24 by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:30:14 +0530 stated that accused Sonu was not present at the time when the said known person of accused Sonu pushed him on the machine. He denied the suggestion that he came to know that the hand of one other child had also came in the machine.
The witness was duly crossexamined by Ld. defence counsel. During his crossexamination, he stated that police officials did not take him to the spot after the incident. He admitted that accused Sonu was not present at the place where the incident took place. He further admitted that accused Sonu did not push him. He denied the suggestion that his fingers were cut while playing in the Gali where he resides. He denied the suggestion that the place where his fingers were cut, is not a factory.
(c) PW-3/Sh. Pinkesh Kumar, Deputy Director. He stated that on 23.09.2014, a request letter was received from HC Lokender Kumar with regard to the inspection of Power Press Machine at Factory No. J-82, Taliwali Basti, GaliNo. 10, Anand Parbat.
Thereafter, again a request letter was received on 18.11.2014 with regard to the inspection of the Power Press Machine at the above stated factory. He further stated that the said letter was marked to him by Chief Inspector on 25.09.2014 and 18.11.2014. He went to the factory on 24.11.2014 for the inspection of the Power Press Machine. He had inspected the Power Press Machine and gave his written report to the SHO PS Anand Parbat on 02.12.2014. He stated FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed 6/24 by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:30:22 +0530 that there was no safety cover around the gears on the machine and dye and punch. The safety covers are required as the component has to be taken out from the machine by hands and if by mistake the pedal is pressed, then the machine will stop only when the entire cycle of the machine is completed and the safety cover comes into action at that time in order to stop the fingers of the labour from going inside the machine. The letter received on 23.09.2014 and 18.11.2014 are Ex.PW3/A and Ex.PW3/B respectively. The report prepared by him is Ex.PW3/C. The witness has also identified the photographs of the Power Press Machine which are Ex.P-1 (Colly).
The witness was duly cross-examined by Ld. defence counsel.
(d) PW-4/Ms. Lakshmi. She stated that she had been deputed to depose on behalf of Dr. Sahil and Dr. Vijay, who had left the services of the hospital and their present whereabouts are not known. She can identify their handwriting and signatures as she had worked under them. She had seen them writing and signing during the course of her duty. As per their record, patient namely Atul was examined vide MLC No. 02455 by Dr. Vijay initially. MLC is Ex.PW4/A, bearing signature of Dr. Vijay at point A and signatures of Dr. Sahil at point B. The witness was duly cross-examined by Ld. defence counsel.
(e) PW-5/Smt. Radha Devi. She is the landlady of factory which was given on rent to the accused. The testimony of said witness does FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
7/24 2023.12.22
16:30:36
+0530
not appear to be relevant to prove the allegations against the accused.
The witness was duly cross-examined by Ld. defence counsel.
(f) PW-6/SI Jagroop Singh. The said witness is formal witness who proves endorsement on the complaint which is Ex. PW-5/A. The witness was duly crossexamined by Ld. defence counsel.
(g) PW-7/Sh. Ravinder. He stated that he used to live in a room which was adjacent to the room in which accused Sanjeev Jayaswal used to run his factory. On 24.08.2014, he was sleeping in his room. He heard screaming voice of children and on hearing the voice, he came out of the room and saw that one child namely Atul was having injury in his fingers. Accused Sanjeev Jayaswal was also present in the factory at the time when he reached there. No other person was present except him, Atul and accused. After sometime, he left the place and went in his room. Witness has correctly identified the accused.
He was duly cross-examined by Ld. APP for State. During his cross-examination by Ld. APP, witness stated that he knew Sanjeev @ Sonu but he does not know any person in the name of Ajay Gautam. Atul used to live in the room adjacent to his room. He admitted that the name of the mother of Atul is Sumitra. Sumitra was present in her house. Radha is the landlady of the plot in which the factory was running. He denied that Sanjeev @ Sonu and Ajay Gautam were present at the place where the incident happened. FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
8/24 2023.12.22
16:30:42 +0530
Accused Sanjeev Jayaswal is a resident of his village. He knew accused prior to the incident. He admitted that accused used to run power press machine in the room in which he runs factory. He does not remember whether Sumitra and Radha were present at the place of incident when he reached there. He was confronted with the statement u/s 161 CrPC where it is recorded that Sanjeev @ Sonu, Radha and Sumitra i.e. mother of child Atul were present at the place of incident when he reached there. On seeing his statement, the witness stated that he does not remember whether Sumitra and Radha were present at the place of incident when he reached there. He was confronted with the statement Ex.PW7/A from point A to A1 where it was so recorded. He denied the suggestion that he is deposing falsely as accused is known to him and resident of his village. He denied the suggestion that he is deposing falsely or that he has been won over by the accused.
He was duly cross-examined by Ld. defence counsel. He deposed that he used to work in a factory in Shahzada Bagh, Delhi. He used to go factory at 9:00 A.M. On the day of incident, he did not go to factory as he was on leave. He does not remember the reason of taking leave. Injured child sustained injuries on his left hand fingers but he does not remember the exact finger. He does not remember on how many fingers the child sustained injuries because it was covered with cloth. He had not seen the fingers of the child because it was covered with cloth. He had not said this fact to the police officials in my statement. IO had told him that he has to FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA 9/24 DEVADIYA Date:
2023.12.22 16:30:49 +0530 depose whatever written in the statement. IO had not shown the statement to him. He denied the suggestion that IO had shown the statement to him outside the Court room. He further denied the suggestion that he is deposing that Sonu was present at the place of incident only at the instance of the IO.
(h) PW-8/HC Mehtab Singh is a formal witness who accompanied the IO and deposes on the same line as that of the IO/PW-9.
The said witness was duly cross-examined by Ld. defence counsel.
(i) PW-9/ASI Lokender Kumar. He deposed that on 14.09.2014, he was posted at PS Anand Parbat as HC. On that day, Duty Officer handed over copy of FIR and original rukka to him for further investigation. He further deposed that on 15.09.2014, he alongwith Const. Mehtab went to the spot i.e. J-81-82, Taliwali Basti, Gali No. 10, Anand Parbat, Delhi. He met the complainant alongwith injured son at his house. He prepared site plan at the instance of complainant which is Ex.PW8/A. The injured child had shown him the machine from which the incident happened. Thereafter, he sealed the machine with the seal of APRVT-III. He seized the machine vide seizure memo already Ex.PW1/A. Thereafter, at the instance of the child accused Sanjeev Jayaswal was arrested and personally searched vide memos Ex.PW8/B and FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA 10/24 DEVADIYA Date:
2023.12.22 16:30:57 +0530 Ex.PW8/C. Accused Sanjeev Jayaswal was released on police bail as the offence was bailable. He recorded the statement of the witnesses u/s 161 CrPC. He further deposed that on the next day, he had deposited the MLC in RML Hospital for opinion with regard to the nature of injury. On 22.09.2014, he sent a letter to the Labour Inspector for inspection of the factory premises J-82, Taliwali Basti, Gali No. 10, Anand Parbat, Delhi which is already Ex.PW3/A. He further stated that on the next day i.e. 23.09.2014, he collected the rent agreement from the landlord Radha Devi and seized the same vide seizure memo Ex.PW9/A. He recorded statement of Radha Devi u/s 161 CrPC. On 30.10.2014, he collected the MLC and as per the MLC the nature of injury was opined as grievous. Thereafter, he apprised the facts to the senior officers and after discussions, Section 338 IPC was added in the FIR. On 24.11.2014, the Labour Inspector visited and inspected the spot. After the inspection, the power press machine was desealed with the seal of APRVT-III. The machine was again seized vide Ex.PW9/B. On 29.11.2014, he got recorded the statement u/s 164 CrPC of the victim / injured Atul. On 10.12.2014, he received the inspection report of machine and filed the same on record. On 29.01.2015, the case property i.e. machine was released on superdari. On 10.04.2015, he had recorded the statement of witness Ravinder. During investigation, he placed on record the relevant documents. He concluded the investigation and submitted the chargesheet before the Court. Photographs were taken at the time when the case property was released on superdari. He can identify FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2023.12.22 11/24 16:31:03 +0530 the case property, if shown to him. Ld. Defence counsel was not disputing the identity of case property. Photographs of case property are Ex.P-1 (Colly.). Accused Sanjeev Jayaswal was correctly identified by the witness.
He was duly cross-examined by Ld. defence counsel. During his cross-examination, witness stated that he had recorded the statement of the complainant at the time when accused was arrested. The complainant had given supplementary statement u/s 161 Cr.P.C. but he did not give his statement u/s 161 CrPC with regard to the fact mentioned in his complaint. He voluntarily stated that the complainant had told him that his statement is the same which is mentioned in his complaint and he refused to give his statement with regard to the fact mentioned in the complaint. He had taken the photographs of the machine before the machine was released on superdari. He voluntarily stated that photographs were also taken at the time when it was released on superdari. he was present along with the labor inspector at the time when the power press machine was inspected. He does not remember whether the labor inspector had checked the machine by operating it. He had taken the injured child to the spot at the time when accused was arrested and the machine was sealed. He denied the suggestion that the complainant had got the FIR registered by putting pressure upon the police officials. He further denied the suggestion that accused was falsely implicated in the present case. He further denied the suggestion that he had not visited the spot or that he had prepared all the documents FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA 12/24 DEVADIYA Date:
2023.12.22 16:31:11 +0530 while sitting at PS.
4. After the Prosecution evidence was closed, the statement of accused under Section 281 r/w 313 Cr.P.C. was recorded on 04.01.2023. Accused stated that he was not present at the spot at the alleged time. The injury suffered by the victim has not been caused in the alleged factory and he may have suffered the same at some other place and that all PWs have deposed falsely against him. Accused did not opt to lead the defense evidence. Thereafter final arguments were heard in details. I have given thoughtful consideration to the submissions of the accused and the State.
FINAL ARGUMENTS
5. Ld. APP submitted that Prosecution has been successful in proving guilt against accused beyond reasonable doubt and the testimony of Prosecution witnesses establishes the act rash and negligent act of the accused which has resulted in alleged injuries to the victim and accordingly, he submitted that the accused deserves to be convicted in the present case.
Per contra, Ld. defence Counsel submitted that Prosecution has failed to prove the guilt against the accused beyond all reasonable doubts as the case of the Prosecution is based on presumption and surmises and that the prosecution witnesses have not been able to depose anything against the specific act of the accused which can be termed as rash and negligent and their FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed SHUBHAM by SHUBHAM DEVADIYA 13/24 DEVADIYA Date: 2023.12.22 16:31:19 +0530 testimony cannot be the sole basis of conviction against the accused. He further submitted that the accused has been falsely implicated in the present case and that he was not present at the alleged spot and he had no role in causing any injuries to the victim. Therefore, as argued, he deserves to be acquitted in the present case.
APPRECIATION OF LAW.
6. In the present matter, the accused has been charged for the offences U/s. 287/338 IPC. In order to prove the guilt of the accused, the Prosecution was required to establish the following ingredients as mentioned U/s 287/338 IPC.
Section 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. Section 338 IPC 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 FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM 14/24 SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:31:29 +0530 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.
7. Thus, the Prosecution, by way of clear and reliable evidences, was required to show that the accused had knowingly or negligently omitted to take such order with machinery installed in his factory which is sufficient to guard against any probably danger to human life for such machinery and by the abovesaid negligent act accused caused grievous injury on the person namely Atul.
8. Under the Indian criminal jurisprudence an accused is presumed to be in innocent until proven guilty. It is a settled law that the Prosecution has to stand on its own legs to substantiate the allegations as set out in the FIR. The Prosecution is also required to prove the case against the accused beyond all reasonable doubts. The charge of accusation of offence of Section 287/338 IPC cannot be imposed upon the accused merely on the basis of an accident. The Prosecution must prove by way of clear and reliable evidences that alleged accident took place due to rash and negligent driving of the accused. Thus, the witnesses are required to expound upon the manner in which the vehicle was being driven. The element of the rashness and negligence on the part of the accused is to be proved by leading cogent evidence to that effect. A mere deposition to the effect FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM 15/24 SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:31:35 +0530 that the vehicle was being driven in a rash and negligent manner would not suffice.
9. Before proceeding further, it is imperative to understand as to what constitute the rash and negligent act in terms of the legally settled position. The Hon'ble Supreme Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, (2000) 7 SCC 72 defined the term "rash and negligent driving". It was held that:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and caution"
The Apex Court while drawing the distinction between rash act and negligent act in Bhalachandra Waman Pathe Vs. The State of Maharashtra, 1968 ACJ 38, held as under:
"An offence under Section 304A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM 16/24 SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:31:41 +0530 observed by straight, J. in Idu Beg's case 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. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case, a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection."
FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by 17/24 SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:31:51 +0530 APPRECIATION OF FACTS AND EVIDENCES.
10. To prove its case u/s 287/338 IPC against the accused, the Prosecution was required to prove the following ingredients:
a). That the accused had the actual control over the machine by which alleged injuries were caused to the victim;
b). That the victim suffered injuries from the machine as alleged to be under the control of the accused;
c) That owing to the rash and negligent act of the accused the victim namely Atul suffered grievous injuries.
11. The first ingredient under section 287/338 IPC stands proved as accused has not disputed the ownership of the machine in question. The 2nd ingredient qua the fact of injury also stands proved by PW-4 who proved the record relating to MLC bearing no. 02455 of victim which is Ex.PW4/A. the accused has also not disputed the suffering of injuries by the victim but has rather stated that injuries suffered by the victim were caused at some other place and not in his factory. Thus, the first and second ingredients stands established.
12. Now, the next question that comes into mind is that whether it was the rash and negligent act of the accused owing to which the victim namely Atul suffered grievous injuries as alleged by the Prosecution.
13. The Prosecution has examined PW1 to PW5 and PW7 to prove its case against the accused for the alleged offence u/s 287/338 FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:31:58 18/24 +0530 IPC. Rest of witnesses of the Prosecution are formal witnesses whose testimony proves the formal part of the investigation.
14. The testimony of PW-1, PW5 and PW7 appears to be based on hearsay as they are not the eye witnesses and have been basing their version of alleged incident upon the information being provided by third person. Their testimony otherwise also does not appear to be of any help for the case of the Prosecution as they are only proving the fact of injury suffered by the victim/PW2 which already stands established as discussed above. Further, the PW-2 who is the victim and the only eyewitness of the alleged incident has specifically stated that the alleged date of incident, he was called by a person namely Rakesh at the factory of the accused and he was asked by one person known to the accused to lift some articles in the factory and when he refused to do so, he was pushed by the said person due to which his hand came in the machine and his fingers were chopped and he sustained alleged injuries. His statement was recorded u/s 164 Cr. P.C. before the Ld. Magistrate concerned which is Mark A clearly reflects that he was pushed by some other person into the power press machine on account of which his hand came in the machine and he sustained alleged injuries. He has specifically stated that accused Sonu did not ask him to come to his factory and it was only the person known to the accused who had called him in the factory in question. He denied the suggestion of Ld. APP for State that accused Sonu had called him at the factory. He has voluntarily stated that FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
19/24 2023.12.22
16:32:04 +0530
accused Sonu was not present at the time of incident when he was pushed by the person known to the accused. Hence, considering the testimony of PW-1 to PW-3, PW-5 and PW-7 it does not appear that there was any act or omission on the part of the accused for the purpose of considering the same as a rash or negligent act which could render him liable for the acts alleged by the Prosecution. Though, PW-3 who is Inspector of Machine and has conducted inspection of Power Press Machine in question, the report of which is Ex. PW-3/C, has stated that there was no safety cover around the gears on the machine and dye punch which are required for avoiding accidents, however, it does not appear that the Prosecution has proved as to by which machine the alleged incident in question has occurred as none of the PWs have identified the machine in question before the Court. In fact, the identity of the alleged Power Press Machine does not appear to have been established at all by the Prosecution. The witnesses especially PW2 have not stated anything qua the identity of the machine by which the alleged injuries have been suffered. In the instant case, the victim/PW-2 was called at the factory of accused by one person namely Rakesh as stated by PW-2 himself and the victim/PW-2 was pushed by one person known to the accused whose name has not been revealed by any of the Prosecution witnesses, therefore, it appears that the allegations of the Prosecution against the accused is based on presumption and surmises. Since the victim/PW-2 was not called and pushed by the accused himself, FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM 20/24 SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 16:32:10 +0530 therefore, it does not appear that accused had any role in the alleged incident.
15. The testimony of PW-6, PW-8 and PW-9 is merely formal in nature as they prove only the formal part of investigation and they do not prove the allegations as put forth against the accused.
16. Further, the alleged incident is stated to have occurred on 24.08.2014, however, the complaint for the same has been given to the PS concerned on 14.09.2014, hence, it appears that there is a delay of around 20 days in the registration of FIR of the present case and no plausible explanation has been put forth by the Prosecution in this regard. The explanation provided by PW-6 who is the first IO of the present case does not appear to be satisfactory as he is merely stated that upon marking of DD no. 19A for investigation, he did not conduct the police investigation as the mother of the victim had told him that she does not want any action in this regard. No other explanation has been advanced by the Prosecution to explain the delay in registration of the FIR and accordingly, the delay in the FIR casts a serious doubt upon the veracity of the story of the Prosecution. The Hon'ble Supreme Court in various cases has held that the delay in lodging in FIR without any plausible explanation can be fatal to the case of the Prosecution. The Hon'ble Supreme Court in Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393, FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA 21/24 DEVADIYA Date:
2023.12.22 16:32:16 +0530 emphasising the necessity of explaining the delay in lodging FIR, has held as follows:
"12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained...."
The Hon'ble Supreme Court in Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775 with regard to the effect of delay in lodging FIR has held as under:
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA 22/24 Date:
2023.12.22 16:32:22 +0530 such delay. In absence of such an explanation, the delay may be fatal.The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the Court should carefully examine the facts before it for the reasonthat a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the Court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case..."
Therefore, the delay in registration of FIR by the PW-6 who is the 1 st IO, even after the facts and circumstances disclosing the commission of cognizable offence, casts a serious doubt on the whole story of the Prosecution, and is fatal to the case of the Prosecution.
FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2023.12.22 23/24 16:32:28 +0530 CONCLUSION.
17. Therefore, in view of the above discussions, it can be safely, said that the Prosecution has miserably failed to bring home the guilt of the accused u/s 287/338 IPC. In these circumstances, it may be safely concluded that the essential ingredients of Section 287/338 IPC are not established against the accused and the case of prosecution is not proved against him beyond all reasonable doubts.
Therefore, accused Jayaswal @ Sonu is hereby acquitted of the offences under Section u/s 287/338 IPC.
18 This Judgment contains total 24 pages and have been digitally signed by me.
Digitally signed by SHUBHAMSHUBHAM DEVADIYA DEVADIYA Date: 2023.12.22 16:32:36 +0530 Announced in open Court (SHUBHAM DEVADIYA) on 22th day of December, 2023 Metropolitan Magistrate West-05, Delhi FIR No. 437/2014 State Vs. Sanjeev Jayaswal @ Sonu PS Anand Parbat 24/24