Delhi District Court
State vs . Kamal Prasad Chauhan on 13 September, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
State Vs. Kamal Prasad Chauhan
FIR No. 309/2008 ANUBHAV
PSOIA JAIN
U/s 338 IPC
JUDGMENT Digitally signed by
ANUBHAV JAIN
A. SL. NO. OF THE CASE : 403/2/09 Date: 2018.09.14
22:15:45 +0530
B. DATE OF INSTITUTION : 27.06.2009
C. DATE OF OFFENCE : 19.07.2008
D. NAME OF THE COMPLAINANT : SI Ashok Giri
E. NAME OF THE ACCUSED : Kamal Prasad Chauhan
S/o Munshi Chauhan
F. OFFENCE COMPLAINED OF : U/s 338 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 13.09.2018
Brief Statement of Reasons for Decision :
1.Accused present before the Court who stand trial for the offences punishable u/s 288/338 IPC.
2. In brief, facts of the case as per prosecution are that on 20.07.2008 at about 12.55 am, DD No. 69B was received by SI Ashok Giri upon which he reached at Batra Hospital wherein he was informed 2 that one person namely Mohd. Faiyaz received injuries by falling down from the second floor of construction site of hotel i.e. M/s Today Hotel. Further injured was declared unfit for statement and IO reached at the construction site of Hotel Today. As the MLC shows grievous injuries an FIR u/s 288/338 IPC was registered. IO prepared site plan and arrested the accused. After completion of investigation, IO filed the chargesheet in the Court.
It is pertinent to state in here that Sh. Ashok Kumar was put in column no. 12 in the charge sheet by IO, however the said accused was never summoned by Ld. Predecessor Court.
3. Accused Kamal Prasad Chauhan appeared before the court on 27.06.2009 and copy of chargesheet was supplied to him u/s 207 CrPC. Thereafter, accused was charged u/s 338 IPC by the Ld. Predecessor court vide order dated 26.11.2013 to which the accused pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case has examined following witnesses :
4.1 PW1 Mohd. Fayaz deposed that in the year 2007/2008 he was working as Sariya fitter at Today Hotel and on 2021 day of 2007/2008 he alongwith one person as setting iron rods on the staircase and in the said process one of the iron rod broke down and due to the impact of breaking force he fell down from the staircase and sustained injuries. He further deposed that the company had failed to provide safety measures including net, shoo and light etc. in order to avoid the 3 said fall from staircase. He further deposed that the name of company was Skyline Construction Pvt. Ltd. and he was working under the supervision of accused Kamal Prasad Chauhah. He correctly identified the accused in the court.
4.2 PW2 Mohd. Mohib deposed that on 19.07.2008 he alongwith Faiyaz and other workers were working at Today Hotel and Faiyaz Alam was doing the work of iron rod at the stairs on the second floor and during the said work he was bending the iron rod and due to sudden break of the said iron rod he fell down from second floor. He further stated that no safety belt was provided by Company Skyline.
4.3 PW3 Ct. Kamlesh Kumar deposed that in the intervening night of 1920.07.2008, he was posted as Ct. at PS OIA and on that day, he was on emergency duty with SI Ashok Giri from 8.00 pm to 8.00 am.
He further deposed that at around, 12.55 am (night) SI Ashok Giri received an information regarding the admission of injured in Batra Hospital from hotel today, OIA vide DD no. 69B upon which he alongwith SI Ashok went to Batra hospital where IO met with the injured and collected MLC no. 5623/08 of the injured from the hospital. He further deposed that the concerned doctor opined that the patient was unfit for statement. He further deposed that no eye witness was found in the hospital and thereafter, he alongwith SI Ashok Giri went to the spot i.e Today Hotel, OIA Phase I where ASI Ashok Giri requested the employees of the hotel to join the investigation but they did not join the same due to fear. He further deposed that Ashok Giri prepared the Tehrir and the same was handed over to him for registration of FIR and after registration of FIR, he returned to the spot with original tehrir and copy of FIR and the same were handed over to IO/SI Ashok Giri. He further 4 deposed that IO prepared the site plan on his own and took the photographs of the spot with the help of his camera. He further deposed that one person namely Mohin who was working with Mohd. Fayaz met them and narrated the facts to the IO and the IO recorded his statement.
4.4 PW4 HC Manbir Singh proved the FIR Ex. PW4/A. 4.5 PW5 HC Ram Chander deposed that on 01.12.2008, he was posted Ct. at PSOIA and on that day, he was on emergency duty from 8:00am to 8:00 pm. He further deposed that on that day, he alongwith ASI Sakhi Ram were present at PS when accused Kamal Prasad Chauhan came and stated that he was DGM of under construction Today Hotel and the construction work of Today Hotel was going under his supervision and during the construction work one person namely Faiyaz fell down. He further deposed that IO arrested the accused vide arrest memo Ex. PW5/A and conducted the personal search vide personal search memo Ex. PW5/B and IO released the accused on bail. He correctly identified the accused in the court.
4.6 PW6 SI Sakhi Ram stated similar facts as that of PW5 and same is not being reiterated here for the sake of brevity.
4.7 PW7 SI Ashok Giri deposed that on 20.07.2008 he was posted at PSOIA and on receiving the DD No. 69B he alongwith Ct. Kamlesh rushed to Batra Hospital and found one Mohd. Faiyaz admitted and upon the MLC the doctor opined the nature of injuries as grievous and declared the injured unfit for statement. He further deposed that no eyewitness was found at the hospital and he alongwith Ct. Kamlesh returned back to the spot and no eyewitness gave any statement at the spot. He further deposed that he prepared rukka Ex. PW7/A and handed over the same to Ct. Kamlesh for registration of FIR and during the 5 course of investigation he prepared site plan Ex. PW7/B, recorded statement of witnesses and gave notice to company Skyline Ex. PW7/C. 4.8 PW8 Dr. Abhijit CMO, ESI Hospital proved the MLC of Mohd. Faiyaz Ex. PW8/A. 4.9 PW9 Nikhil Kinna deposed that he was working with Today Hotel in the year 2007 to 2010 as a legal manager. He proved the agreement between the contractor and company Ex. PW9/B.
5. Statement of accused u/s 313 C.r.P.C. was recorded on 14.08.2018 upon which accused denied all the allegations as levelled against him by the prosecution and stated that he has been falsely implicated in the present case. It is stated by the accused that they have provided with all the adequate safeguards and that he was not on the spot on that day and it was the duty of Sukhvir Singh to look after the work of safety. Accused choose not to lead any DE and matter was fixed for final arguments.
6. I have heard the arguments lead by Ld. APP for the State and counsel for the accused and perused the case file carefully.
7. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond reasonable doubts. It is the case of the prosecution that injured Faiyaz while, by falling, working at the construction site of hotel Today India received grievous injuries as the contractor failed to supply safety equipments i.e. safety nets etc. to the workers working in the site. As such it was for the prosecution to prove 6 that:
1) There was an act on part of the accused
2) Said act was rash or negligent to endanger the human life
3) Because of the said Act grievous hurt was caused to Faiyaz
8. As per the case of prosecution M/s Today Hotel have entered into a construction contract with M/s Sky Line Engineering Contracts India Pvt. Ltd. regarding the construction work to be conducted at the site of M/s Today Hotel. In order to prove the same the prosecution has placed on recored the copy of agreement entered into between Today Hotel and M/s Sky Line Engineering Contracts India Pvt. Ltd. Nikhil Kinna who appeared as PW9 prove the fact that he had handed over the said contract to investigation agencies. Although there is no witness brought forth by the prosecution to prove that the said contract was entered into between Hotel Today and Skyline Engineering Contracts India Pvt. Ltd., however execution of same is not denied by the accused. Furthermore, accused in his statement u/s 313 Cr.P.C admitted the execution of said contract between M/s Today Hotel and M/s Sky Line Engineering Contracts India Pvt. Ltd.
Perusal of contract reveals that as per the safety rules, the contractor is liable to comply with the safety of labour and welfare rules and all the safety equipments are to be provided by the contractor.
9. As such it was for the prosecution to prove that the construction work was carried under the supervision of accused Kamal Prasad 7 Chauhan and further that accused was entrusted by the M/s Sky Line Engineering Contracts India Pvt. Ltd. with the safety gears to be provided to the workers working at the construction site of M/s Today Hotel.
10. Accused Kamal Prasad Chauhan was named by injured Faiyaz as well as by one Sh. P. Bahel in their statement u/s 161 Cr.PC wherein they have stated that Kamal Prasad Chauhan was DGM in M/s Sky Line Engineering Contracts India Pvt. Ltd. and construction work was being carried out under his supervision. Injured Faiyaz also during the deposition in the court have stated that he was working under the supervision of Kamal Prasad Chauhan and despite repeated request for providing of safety gears to him, no heed was paid upon his request.
11. It is pertinent to state in here that said Sh. P. Bahel who in his statement u/s 161 CrPC have stated that accused Kamal Prasad Chauhan was working in M/s Sky Line Engineering Contracts India Pvt. Ltd. at the post of DGM and construction work at the site was being carried out under his supervision was never summoned as prosecution witness in order to prove the said act. Furthermore no other authorised representative or the owner of M/s Sky Line Engineering Contracts India Pvt. Ltd. has been summoned as a prosecution witness to prove the abovesaid fact.
It is further pertinent to state in here that no other document or appointment letter of accused Kamal Prasad Chauhan is placed on record and proved in order to show that his job in M/s Sky Line 8 Engineering Contracts India Pvt. Ltd. was to conduct supervision of the construction work or M/s Today Hotel.
Furthermore, PW2 Mobin during the course of his testimony did not depose with regard to the fact that he was working under the supervision of accused Kamal Prasad Chauhan and that it was the duty of accused Kamal Prasad Chauhan to provide with safety gears to the workers working at the construction site.
12. The only evidence so brought forth by the prosecution against the accused Kamal Prasad Chauhan in order to establish his liability for providing of safety gears to the workers working at the construction site of M/s Today Hotel was deposition of injured himself namely Mohd. Faiyaz. The injured Mohd. Faiyaz during the course of his cross examination have stated that he was working under the contractor Majibul Khan and not under M/s Sky Line Engineering Contracts India Pvt. Ltd. and Majibul Khan used to pay him for the work done by him.
13. Be that as it may, considering the fact that none has been summoned by the prosecution from M/s Sky Line Engineering Contracts India Pvt. Ltd. in order to affix the liability of accused which could have been the best evidence in the present case, the prosecution has failed to show that the construction work at the site of M/s Today Hotel was being carried out under the supervision of accused herein and that he was liable to provide safety gears to the workers working at the construction site.
914. Even if for the sake of arguments, it is believe that the work was being carried out under the supervision of accused herein, it was for the prosecution to show that there was such a gross negligence on the part of the accused so as to attract criminal liability. For the same, I may gainfully refer to the observation made by Hon'ble Apex Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 :
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law.
For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
This court further placed on reliance upon the judgment Abdul Kalam v. State, 2006 SCC OnLine Del 526 passed by Hon'ble High Court of Delhi where upon similar facts observed by Hon'ble High Court of Delhi as under :
4. The learned Counsel for the petitioner further submitted that even the ingredients of Section 338 are not satisfied and, therefore, even if the allegations against the petitioner are taken to be true, no offence under Section 338, IPC is made out. Section 338, IPC reads as under:
"338. Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal 10 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."
5. A reading of the said section would clearly indicate that there must be some act done by the accused and that act must be done so rashly or negligently as to endanger human life or the personal safety of others. The petitioner had merely engaged the services of the said Mohd Shamshad for carrying out plastering work in residential premises. Apart from this, he did not do any act which could be regarded as rash or negligent so as to endanger human life. Therefore, in my opinion, the ingredients of Section 338 are not made out even if the statement of the said Mohd Shamshad is taking to be entirely true and correct. There is no nexus between the petitioner engaging the services of the injured and the injury being caused to him. The petitioner had no hand in setting up the scaffolding.
15. Admittedly, in the present case injured Faiyaz fell down while he was trying to bend the iron rod and the same suddenly broke down. It was observed by the Hon'ble Apex Court in the abovesaid judgment that the work negligence in order to attract criminal liability must be gross and there must be element of mens rea in the same. In the present case in hand where the injured received injuries resulting from the fall due to the break of iron rod while the injured was trying to bend the same, cannot by any stretch of imagination be considered as gross negligence on the part of the accused herein.
16. Considering the law and facts discussed above, prosecution has failed to prove the case beyond reasonable doubts and accused is acquitted for the offence punishable u/s 338 IPC for which he was 11 charged.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 13.09.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 11 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI