Delhi District Court
State vs . Shyam Bihari on 17 January, 2020
1
IN THE COURT OF SH. FAHAD UDDIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.116/08
PS Maurice Nagar
State Vs. Shyam Bihari
U/s 287/304A/174A IPC
Unique Case ID No. 303207/16
(a) Sr. No. of the Case 303207/16
(b) Date of offence 24.08.2008
(c) Complainant Montu Mahaldar
(d) Accused Shyam Bihari
(e) Offence 287/304A/174A I PC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted for the offence u/s
287/304A IPC.
Convicted for the offence u/s 174A
IPC
(h) Date of Institution 25.06.2009
FIR no.116/08
Maurice Nagar page no.1 of 28
State Vs.Shyam Bihari
2
(i) Date when 09.01.2020
judgment was
reserved
(j) Date of judgment 17.01.2020
FIR no.116/08
Maurice Nagar page no.2 of 28
State Vs.Shyam Bihari
3
JUDGMENT
Facts:
The present chargesheet has been filed against the accused Shyam Bihari for the offence U/s 287/ 304 A IPC as well as U/s 174 A IPC.
1. It is the case of the prosecution that on 24.08.2008, the complainant Montu Mahaldar and his brother Tapan Mahaldar were working at underground Metro site in a Metro Rail Project near Khalsa College DU. The Mixer machine was installed on the road and the prepared mixer was being carried downside through an iron pipe.
Around 12:05 am , the iron pipe got blocked and the supervisor Shyam Bihari called the deceased Tapan Mahaldar and his brother Montu Mahaldar for removing the blockage despite their protest to do so. When the deceased Tapan Mahaldar tried to open blocked pipe with the help of labour , the same got hit against the chest of the deceased Tapan Mahaldar due to which he fell down and blood started oozing out from his mouth and nose and the deceased was then taken to Nulife hospital for medical treatment and police was informed about the incident on 100 no. The brother of the complainant namely Tapan Mahaldar was declared brought dead and in this manner the accused is alleged to have committed the offence U/s 287/304 A IPC. Further there are allegations against the accused that the warrants were issued against him, which could not be executed as he absconded and concealed himself and a written proclamation was issued directing him FIR no.116/08 Maurice Nagar page no.3 of 28 State Vs.Shyam Bihari 4 to appear on 25.04.2011 before the Court, however, the accused did not comply with the same and thus committed an offence U/s 174 A IPC.
2. Cognizance of the said offences was taken and after compliance of the provisions of section 207 Cr.P.C , Charge U/s 287/304 A IPC as well as U/s 174 A IPC was framed against the accused on 07.08.2012. Accused pleaded not guilty and claimed trial.
Prosecution Evidence:-
3. To prove the case against the accused person, the prosecution relied upon the following documents:-
(i) FIR bearing no. 116/08 U/s 287/304 A IPC as Ex.PW-1/A, Endorsement on tehrir as Ex.PW-1/B.
(ii) Arrest memo of accused Ex.PW-2/A and his personal search memo as Ex.PW-2/B.
(iii) Complaint Ex.PW-3/A, receiving memo of dead body Ex.PW-3/B and identification of the dead body vide memo Ex.PW-3/C.
(iv) Post Mortem Report on the dead body of the deceased as Ex.PW- 4/A.
(v) Detailed inspection report by Labour Enforcement officer as Ex.PW- 8/A.
(vi) Photographs of spot/case property as Ex.PW-9/A (Colly).
(vii) DD No. 05 A as Ex.PW-11/A, Rukka Ex.PW-11/B , Site Plan Ex.PW-
11/C, dead report from Nulife hospital Ex.PW-11/D, identification memo FIR no.116/08 Maurice Nagar page no.4 of 28 State Vs.Shyam Bihari 5 as Ex.PW-11/E , Inquest report Ex.PW-11/F and offending machine Ex.P-
1.
(viii) Preliminary Inquiry report by Senior Additional GM, Delhi Metro as Ex.PW-13/A, Detailed final report regarding the cause of incident as Ex.PW-13/B (Colly).
(ix) Kalandra U/s 41.1 (c ) Cr.P.C Ex.PW-14/A, arrest memo of accused Ex.PW-14/B and personal search memo as Ex.PW-14/C.
(x) DD No. 23-A as Ex.PW-15/A.
4. To prove the guilt of the accused person, the prosecution got examined 15 witnesses.
5. PW-1 is Retd. SI Mohan Lal, who deposed that on 24.08.2008, he was posted at PS Maurice Nagar as duty officer. His duty hours were from 12:00 midnight to 08:00 am. He received a rukka sent by SI Ranbir Singh through Ct. Yogender at abut 7:15 am on the basis of which he got present FIR registered. The FIR was registered by using the computer systems and specially designed softwar installed at PS which did not allow any alteration or deletion subsequent to the feeding of data. The true print out of the FIR is Ex.PW-1/A. He further certified that during the period the FIR was registered the computers installed at PS were under his lawful control and Ex.PW-1/A is a computer output based upon the information fed into the computer in ordinary course of the activities and is free from any error on account of failure or malfunctioning of the computer. He handed over the copy FIR no.116/08 Maurice Nagar page no.5 of 28 State Vs.Shyam Bihari 6 of FIR to Ct. Yogender and made an endorsement Ex.PW-1/B on the tehrir to this effect. No other material fact was deposed to by PW-1 . Despite opportunity given PW-1 was not cross examined on behalf of the accused.
6. PW-2 is HC Narender Singh who deposed that on 25.08.08 , he was posted at PS Maurice Nagar as Ct.. On that day, he joined the investigation of the present case. In his presence IO/SI Ranbir Singh arrested the accused Shyam Bihari at Metro Site near Khalsa College, Delhi University vide memo Ex.PW-2/A and conducted his personal search vide memo Ex.PW-2/B. IO recorded his statement U/s 161 Cr.P.C. No other material fact was deposed to by PW-2 . Despite opportunity given PW-2 was not cross examined on behalf of the accused.
7. PW-3 is Mantu Mahaldar who deposed that he alongwith his brother Tapan Mahaldar was working at under ground place Metro Site but he did not remember the exact place. Construction material was being taken to underground place with the help of machines. The pipe through which construction material was taken to underground place got jammed. Suddenly, the pipe got removed and hit his brother due to which he sustained injuries. Thereafter his brother was taken to hospital. Thereafter he expired. PW-3 stated that 'no one is responsible for the death of his brother'. He put his signatures at point FIR no.116/08 Maurice Nagar page no.6 of 28 State Vs.Shyam Bihari 7 A on complaint Ex.PW3/A. He also received the dead body of his brother vide memo Ex.PW3/B. He also identified the dead body of his brother vide memo Ex.Pw3/C.
8. During his examination PW-3 was crossed examined by Ld. APP for the State as he was resiling from his earlier statement. In his cross examiantion by Ld. APP for the State PW-3 stated that it is correct that on 23.08.2008, he alongwith hs brother Tapan Mahaldar went to the Metro Site situated near Khalsa College, Delhi University at about 6:00 pm. It is correct that construction material was prepared through one machine. PW-3 denied the suggestion that about 12:05am (night) when the abovesaid pipe got jammed, he alongwith his brother Tapan was called by the supervisor Shyam Bihari. He further denied that supervisor/accused Shyam Bihari asked them to remove the blockage of the pipe. He denied that he alongwith his brother asked him "yeh kholna khatarnak ho sakta hai" and that the supervisor/accused Shyam Bihari insisted them to remove the blockage and thereafter he alongwith his brother and other labourers opened the pipe. He further denied that in that process, the pipe hit his brother on the chest and that when his brother sustained injuries, he asked accused "yeh aapne kya kara diya jo supervisor/accused ne kaha aisa ho gaya to kya hua, agar tum naukri karoge to yeh khatre jhelne hi padenge". PW-3 was confronted with his statement from point A to A and from point B to B on Ex.PW3/A and he denied making of the statement. PW-3 further FIR no.116/08 Maurice Nagar page no.7 of 28 State Vs.Shyam Bihari 8 denied the suggestion that death of his brother occurred due to rash and negligent act of the accused and that accused is responsible for the death of his brother. He further denied the suggestion that he has been won over by the accused. No other material fact was deposed to by PW-3 . Despite opportunity given PW-3 was not cross examined on behalf of the accused.
9. PW-4 is Dr. Akash Jhanjee, Specialist Forensic Medicine, Aruna Asif Ali Govt. Hospital, who deposed that on 24.08.2008, he was working as a junior specialist at the said hospital. On that day he conducted the postmortem on the body of Tapan Mahaldev and his detailed report in this regard is Ex.PW-4/A. No other material fact was deposed to by PW- 4 . Despite opportunity given PW-4 was not cross examined on behalf of the accused.
10. PW-5 is Ct. Yogender, who deposed that on 24.08.08, he was posted as a Ct. at PS Maurice Nagar. On that day, he joined investigation wth IO/SI Ranbir Singh. He alongwith hm reached at NULife hospital, Mukherjee Nagar, Delhi. One dead body of Tapan Mahaldar was lying in the hospital and IO obtained the report from the doctor. IO recorded the statement of Mantu Mahaldar and prepared the rukka and handed over the same to him for registration of case. After registration of case, he came back and handed over the copy of FIR and original rukka to the IO. He deposited the dead body in subzi Mandi mortuary. Thereafter postmortem was conducted on the dead FIR no.116/08 Maurice Nagar page no.8 of 28 State Vs.Shyam Bihari 9 body and it was handed over to the relatives of deceased. No other material fact was deposed to by PW5. Despite opportunity given, PW5 was not cross examined on behalf of accused.
11. PW 6 is Lilu Mahaldar, who deposed that he did not know anything about the present case. His statement was not recorded by the IO.
PW-6 was cross examined by Ld. APP for the State as he was resiling from his earlier statement wherein he denied that his statement mark X was recorded by the IO. He denied that on 23.08.2008, he alongwith Mantu and Tapan Mahaldar was working in the project of Metro near Khalsa College, Delhi University. He denied that Mantu told him that on 23.08.2008, he alongwith Tapan went to above said site. He further denied that Mantu further told him that he alongwith Tapan Maldar were working at the site in the underground project and suddenly, the iron pipes got jammed due to the material and that he further told him that the supervisor Shyam Bihari called both of them and pressurized them to clear the blockage of the pipes and under pressure, they cleared the blockage. He further denied that he further told him that after the blockage of the pipe, one pipe stuck against the chest of Tapan due to which Tapan sustained injuries and he became unconscious. He further denied that he further told him that thereafter, he took Tapan to the hospital and some one made a call at 100 number. He denied that thereafter, Tapan was taken to NU Life hospital where he was declared dead. He denied that he stated to FIR no.116/08 Maurice Nagar page no.9 of 28 State Vs.Shyam Bihari 10 the police officials that the death of Tapan happened due to rash and negligent act of accused Shyam Bihari. Statement from mark X to X was read over and explained to the witness but he denied making of the statement. He denied the suggestion that he has been won over by the accused. No other material fact was deposed to by PW-6 . Despite opportunity given PW-6 was not cross examined on behalf of the accused.
12. PW7 is Sontu Mahaldar, who deposed that he did not know anything about the present case. His statement was not recorded by the IO.
PW-7 was cross examined by Ld. APP for the State as he was resiling from his earlier statement wherein he denied that his statement mark Y was recorded by the IO. He denied that on 23.08.2008, he alongwith Mantu, Lilu Maldar and Tapan Maldar was working in the project of Metro near Khalsa College, Delhi University. He denied that on 23.08.2008, Mantu alongwith Tapan went to above said site and that Mantu alongwith Tapan Maldar were working at the site in the underground project and suddenly, the iron pipes got jammed due to the material. He denied that the supervisor Shyam Bihari called both of them and pressurized them to clear the blockage of the pipes and under pressure, they cleared the blockage. He denied that after the blockage of the pipe, one pipe stuck against the chest of Tapan due to which Tapan sustained injuries and he became unconscious and that thereafter, he took Tapan to the hospital and FIR no.116/08 Maurice Nagar page no.10 of 28 State Vs.Shyam Bihari 11 someone made a call at 100 number. He denied that thereafter, Tapan was taken to metro site and thereafter, to NU Life hospital where he was declared dead. He denied that he stated to the police officials that the death of Tapan happened due to rash and negligent act of accused Shyam Bihari. Statement from mark Y to Y was read over and explained to the witness but he denied making of the statement. PW-7 further denied that he has been won over by the accused. No other material fact was deposed to by PW-7. Despite opportunity given PW-7 was not cross examined on behalf of the accused.
13. PW-8 is Tej Bahadur who deposed that on 20.02.2009, he was posted as Labour Enforcement Officer (Central) Delhi. On that day at about 4.00 pm he visited the spot at the request of SHO, PS Maurice Nagar and inspected the place of incident. His detailed inspection report is now exhibited as Ex. PW-8/A. No other material fact was deposed to by PW-8 . Despite opportunity given PW-8 was not cross examined on behalf of the accused.
14. PW-9 is HC Sanjay Kumar who deposed that on 24.08.2008, he reached at the spot at the instruction of the IO,i.e. at metro site , near Khalsa college, Delhi University, ring road. He clicked 8 photographs form various angles which are collectively Ex.PW9/A(Colly) along with negative. No other material fact was deposed to by PW-9 . Despite opportunity given PW-9 was not cross examined on behalf of the accused.
FIR no.116/08Maurice Nagar page no.11 of 28
State Vs.Shyam Bihari
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15. PW-10 is Retired SI Mahavir Singh who deposed that on 20.01.2009. he was posted as SI at PS Maurice Nagar. On that day, investigation of the present case was assigned to him by the direction of the then SHO. Accordingly, he received the case file of the present case from MHCR. After receiving the file, he conducted the investigation of the present case and received the inspection report of Labour and Postman Officer. After completion of investigation, he prepared the challan and filed the same before the Court. No other material fact was deposed to by PW-10 . Despite opportunity given PW- 10 was not cross examined on behalf of the accused.
16. PW-11 is Retd. SI Ranvir Singh who deposed that on 24.07.2008, he was posted as SI. On that day, he was on emergency duty and his duty hours were from 8:00 pm to 8 am. On that day, DD No. 05-A regarding accident was assigned to him through Ct. Joginder. Attested copy of the DD No. 05-A is already on record which is Ex. PW-11/A. After receiving the DD, he alongwith Ct Joginder went to Nulife Hospital, Mukharjhee Nagar, where injured Tapan Mahaldar was found admitted and he was declared brought dead by the doctor. Complainant Montu Mahaldar was also present there. He told him the entire incident and IO recorded his statement already Ex. PW-3/A. Thereafter, he prepared the rukka Ex. PW-11/B and handed over the same to Ct. Joginder with direction to get the FIR registered. He accordingly went to the PS along with original ruuka. Thereafter, PW-
FIR no.116/08Maurice Nagar page no.12 of 28
State Vs.Shyam Bihari
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11 went to the spot along with the complainant and prepared site plan at the instance of complainant Ex. PW-11/C .He also called the photographer and got the photographs of the spot and the offending machine got clicked. In the meantime, Ct. Joginder came back at the spot along with original rukka and copy of FIR handed over the same to him for further investigation. Thereafter, he along with the complainant and Ct. Joginder went to the hospital Nulife Hospital and obtained the dead body of the injured and brought the dead report from Nulife hospital which is Ex. PW-11/D and the dead body was shifted to Subji Mandi Mortuary. The dead body was identified by the relatives of the deceased vide identification memo already Ex. PW-3/C and Ex. PW-11/E . He prepared the inquest report Ex. PW-11/F and requested the Dr. at Subji Mandi Mortuary to conduct postmortem on the dead body of deceased. After postmortem the dead body of deceased was handed over to the relatives of deceased vide handing over memo already Ex. PW-3/B .Thereafter, they returned back to the PS. He recorded the statements of witnesses. Thereafter, on the next day i.e. on 25.08.2008 he along with Ct. Narinder went to the spot and arrested the accused vide arrest memo already Ex. PW-2/A and conducted his personal search vide memo already Ex. PW-2/B and the accused was released on police bail. Accused was correctly identified by the witness. PW-11 recorded the statements of witnesses. Thereafter, after some days, he collected the postmortem report of the deceased. He also requested the Labour Commissioner, K.G. Marg, to conduct the inspection of the offending machine at the spot. Thereafter, the case FIR no.116/08 Maurice Nagar page no.13 of 28 State Vs.Shyam Bihari 14 file of the present case was handed over to the MHC(R). PW-11 was shown 8 photographs available on the judicial file. Witness correctly identified the photographs belonging to the spot. Witness also identified the offending machine. Photographs already Ex. PW-9/A (colly). The offending machine is Ex. P-1.
In his cross examination by Ld. Counsel for the accused PW-11 denied the suggestion that he never joined the investigation of the present case and all the proceedings were carried out by him while sitting in PS. No other material fact was deposed to by PW-11 .
17. PW-12 is Dr. Harish Kumar, MD, Nulife Hospital, Delhi who deposed that on 24.08.2008 he was posted as Medical Director Nulife Hospital. On that day, one patient namely Tapan Mahaldar was brought to the Hospital with alleged history of RTA. He had medically examined the patient. The patient was having severe injury marks on left side of face and bleeding from nose and mouth and left eye and the patient was brought dead. He prepared the report of the same already Ex. PW-11/D bearing his signature at point A. No other material fact was deposed to by PW-12 . Despite opportunity given PW- 12 was not cross examined on behalf of the accused.
18. PW-13 is Devender Gill, Senior Additional GM, Delhi Metro Rail Corporation, Delhi, who deposed that he was working with DMRC since August 2007. In the year 2008, he was posted as Deputy GM at DMRC. On the intervening night of 24-25.08.2008, he received the information FIR no.116/08 Maurice Nagar page no.14 of 28 State Vs.Shyam Bihari 15 regarding the accident at Metro Construction Site at Vishvidyala Metro Station. After receiving the information, he reached at the spot and came to know that labourer Tapan Mahaldar received injuries and had been taken to hospital and declared brought dead by the doctors. He conducted local enquiry at the spot and prepared the preliminary report in this regard and the copy of the same is Ex. PW-13/A. The site was under the supervision of Shyam Bihari at surface level. Thereafter, he carried out detailed investigation of the matter and submitted his detailed report in this regard. Same is Ex. PW-13/B (colly). As per report, his observation regarding the cause of incident is mentioned at point X. Out of which one of the cause was that the competence of the site supervision had been acquired through experience of working for years and not by/through formal training/qualification.
19. In his cross examiantion by Ld. Counsel for the accused PW-13 stated that it is correct that his inquiry was fact finding and was not for fault finding. The incident in question had occurred approximately 4 to 5 meters below the surface level in the shaft. Mr. Manoj Dutt Gautam was supervising the concreting at the track level. Mohd. Aarif Khan was the Sr. Site Engineer at the site. It is correct that whatever facts were found by him in his inquiry were mentioned by him in his reports.
20. PW-14 is HC Ashish Nain, who deposed that on 19.03.2012, he was posted as Ct. at PS Maurice Nagar. On that day, at about 6:20 pm, FIR no.116/08 Maurice Nagar page no.15 of 28 State Vs.Shyam Bihari 16 he along with the IO HC Ram Dutt went to the spot i.e. Vijay Nagar Bus Stand, Near NDPL Office where one secret informer informed the IO by pointing towards one person who was declared proclaimed offender by the court in case FIR No. 116/08, Under Section 287/304-A IPC PS Maurice Nagar vide order dated 03.10.2011. Thereafter, he along with the IO apprehended the said person. On inquiry said person disclosed his name as Shyam Bihari and correctly identified by the witness. Thereafter, the IO prepared the Kalandara under Section 41.1 (C ) Cr.P.C which is Ex. PW-14/A and accused was arrested vide arrest memo Ex. PW-14/B. Personal search of the accused was conducted vide personal search memo Ex. PW14/C. IO recorded his statement.
21. In his cross examiantion by Ld. Counsel for the accused PW-14 denied the suggestion that no investigation was joined by him and that all the investigation procedure was followed and prepared while sitting in the police station.
22. PW-15 is ASI Ram Dutt, who deposed that on 19.03.2012, he was posted as HC at PS Maurice Nagar. On that day, at about 6:20 pm, he along with the Ct. Ashish Nain was on patrolling duty for searching P.O. and went to the spot i.e. Vijay Nagar Bus Stand, Near NDPL Office where one secret informer informed him by pointing towards one person who was declared proclaimed offender by the court in case FIR No. 116/08, Under Section 287/304-A IPC PS Maurice Nagar vide order FIR no.116/08 Maurice Nagar page no.16 of 28 State Vs.Shyam Bihari 17 dated 03.10.2011. Thereafter, he along with the Ashish Nain apprehended the said person. On inquiry said person disclosed his name as Shyam Bihari and correctly identified by the witness. Accused also told that he was deliberately not appearing before the court and is P.O. in the above case. Thereafter, he prepared the Kalandara under Section 41.1 (C ) Cr.P.C which is already Ex. PW-14/A and accused was arrested vide arrest memo already Ex. PW-14/B. Personal search of the accused was conducted vide personal search memo already Ex. PW14/C. He also prepared DD No. 23-A on the same day which is Ex. PW-15/A. Thereafter, he prepared the supplementary challan under Section 174-A IPC and file the same before the court.
23. In his cross examaintion by Ld. Counsel for the accused PW-15 denied the suggestion that accused was apprehended or arrested from his house Shahbad Mohammad Pur, Sector-8, near Dwarka Metro Station.
24. Thereafter after examination of all the prosecution witnesses, prosecution evidence was closed on 29.07.2019 and the matter was fixed for recording of statement of accused U/s 313 Cr.P.C.
Statement of Accused:
25. On 25.10.2019, statement of the accused U/s 313 Cr.P.C was recorded whereby all the incriminating evidence was put to the FIR no.116/08 Maurice Nagar page no.17 of 28 State Vs.Shyam Bihari 18 accused . In his statement recorded U/s 313 Cr.P.C, the accused stated that the company officers had told him that the case was finished and no litigation was pending against him that is why he had not appeared before the Court. All the documents are matter of record. The prosecution witnesses have deposed against him in discharge of their official duties and they are interested witnesses. The present case is a false case and he has been falsely implicated in the present case. Accused did not wish to lead any DE and hence the opportunity to lead DE was closed on 25.10.2019.
Final Arguments:
26. Thereafter final arguments were addressed by Ld. APP for the State as well as Ld. Counsel for the accused. In the final arguments addressed by Ld. APP for the State, the Ld. APP for the State submitted that on the basis of oral as well as documentary evidence adduced before the court, the prosecution has been able to prove its case against the accused beyond reasonable doubt and the accused be convicted for the offence U/s 287/304 A IPC and 174 A IPC for causing the death of deceased Tapan Mahaldar by rash and negligent act and for not appearing before the court despite proclamation issued against him. On the other hand Ld. Counsel for accused has submitted that the prosecution has miserably failed to bring home the guilt of the accused. The accused persons was not negligent as alleged by the prosecution. The incident occurred due to negligence of the FIR no.116/08 Maurice Nagar page no.18 of 28 State Vs.Shyam Bihari 19 victim/deceased himself and the accused did not appear before the court as he was informed by the company officials that the case was finished against him and no litigation was pending and hence the accused be acquitted of the offence U/s 287/304 A IPC as well as 174 A IPC .Arguments Heard. Record Perused.
Findings:
27. In the present case the allegations against the accused Shyam Bihari are that on 24.08.2008, the complainant Montu Mahaldar and his brother Tapan Mahaldar were working at underground Metro site in a Metro Rail Project near Khalsa College DU. The Mixer machine was installed on the road and the prepared mixer was being carried downside through an iron pipe. Around 12:05 am , the iron pipe got blocked and the supervisor Shyam Bihari called the deceased Tapan Mahaldar and his brother Montu Mahaldar for removing the blockage despite their protest to do so. When the deceased Tapan Mahaldar tried to open blocked pipe with the help of labour , the same got hit against the chest of the deceased Tapan Mahaldar due to which he fell down and blood started oozing out from his mouth and nose and the deceased was then taken to Nulife hospital for medical treatment and police was informed about the incident on 100 no. The brother of the complainant namely Tapan Mahaldar was declared brought dead and in this manner the accused is alleged to have committed the offence U/s 287/304 A IPC. Further there are allegations against the accused that FIR no.116/08 Maurice Nagar page no.19 of 28 State Vs.Shyam Bihari 20 the warrants were issued against him, which could not be executed as he absconded and concealed himself and a written proclamation was issued directing him to appear on 25.04.2011 before the Court, however, the accused did not comply with the same and thus committed an offence U/s 174 A IPC.
The said sections may be reproduced as under:-
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.
304 A:-Causing death by negligence.- Whoever causes 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.
FIR no.116/08Maurice Nagar page no.20 of 28
State Vs.Shyam Bihari
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[174A. Non appearance in response to a proclamation under section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure , 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.] To bring a case of homicide under section 304 A IPC, the following conditions must exist,
(i) There must be death of the person in question;
(ii) The accused must have caused such death and
(iii) That such act of the accused was rash or negligent and that it did not amount to culpable homicide.
The requirements of section 304 A are that the death of the person, must have been caused by doing only a rash or negligent act and that there must be a direct nexus between the death of a person and the rash and negligent act of the accused. But if death is not the direct result of a negligent act on the part of the accused, section 304 A IPC will not apply. To impose criminal liability under section 304 A IPC, it is necessary that the death should have been the direct result of rash and negligent act of the accused and that such act must be the proximate and efficient cause , without the intervention of another's FIR no.116/08 Maurice Nagar page no.21 of 28 State Vs.Shyam Bihari 22 negligence. It must be the causa causans (the immediate or operating cause), it is not enough that it may have been the causa sine qua non (a necessary or inevitable cause).
28. A rash act is primarily an over hasty act . It is opposed to a deliberate act. The term 'rash act' denotes the want of proper care and caution. It connotes an overt act. In other words rashness means doing an act with the consequence of a risk that evil consequences will follow but with the hope that they will not happen. Negligence, on the other hand is a breach of duty imposed by law. Negligence may be either civil or criminal negligence depending upon the nature and gravity of the negligence. Criminal negligence is gross and culpable , neglect, or failure to exercise 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 duty of the person to have adopted. In criminal cases, the amount and the degree of negligence are the determining factors. There must be mens rea in criminal negligence also. That is to say in order to establish criminal responsibility the facts must be such that the negligence of the accused went beyond a mere matter of comprehension and showed such disregard for the life and safety of the other as to amount to a crime. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without intention to cause injury or FIR no.116/08 Maurice Nagar page no.22 of 28 State Vs.Shyam Bihari 23 knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.
29. If the aforesaid legal principles are applied to the facts and circumstances of the present case, this court is of the view that the prosecution has failed to prove any rash or negligent act on behalf of the accused Shyam Bihari resulting into the death of the deceased Tapan Mahaldar so as to fasten criminal liability on the accused. Even though , the accused Shyam Bihari has been charged for the commission of offence U/s 287/304 A IPC for causing the death of deceased Tapan Mahaldar by rash and negligent act, being supervisor and contractor of metro project at Metro site near Khalsa College Delhi University by not taking proper care at the time of getting the blockage cleared from the pipe of the mixture and due to negligence of the accused the pipe fell on the chest of the deceased Tapan Mahaldar and blood started oozing out from the mouth and nose of the deceased which resulted in his death. However, the facts and circumstances of the case and the evidence on record do not suggest the same.
30. PW-1 Retd. SI Mohan Lal has deposed regarding registration of FIR Ex.PW-1/A and endorsement on the tehrir Ex.PW-1/B in his FIR no.116/08 Maurice Nagar page no.23 of 28 State Vs.Shyam Bihari 24 examination. PW-2 HC Narender has deposed regarding arrest of accused and conducting his personal search vide memos Ex.PW-2/A and Ex.PW-2/B. PW-3 Mantu Mahaldar who is the complainant in the present case and is the brother of the deceased Tapan Mahaldar stated in his examination that he alongwith his brother Tapan Mahaldar was working at under ground place Metro site, construction material was being taken to underground place with the help of machines. The pipe through which construction material was taken to underground place got jammed. Suddenly the pipe got removed and hit his brother due to which he sustained injuries. Thereafter his brother was taken to hospital and he got expired. PW-3 stated that no one is responsible for the death of his brother. In his cross exmaiantion by Ld. APP for the State PW-3 denied that supervisor/accused Shyam Bihari asked them to remove the blockage of the pipe and that the supervisor/accused Shyam Bihari insisted them to remove the blockage and that he alongwith his brother and other labourers opened the pipe and in that process, the pipe hit his brother on the chest. PW-3 further denied making the statement Ex.PW-3/A. He further denied that the death of his brother occurred due to rash and negligent act of the accused and that the accused is responsible for the death of his brother. PW-4 Dr. Akash Jhanjee stated that he conducted the postmortem of body of deceased Tapan Mahaldar and his detailed report in this regard is Ex. PW-4/A. PW-6 Lilu Mahaldar stated in his examination that he did not know anything about the present case. His statement was not recorded by the IO. In FIR no.116/08 Maurice Nagar page no.24 of 28 State Vs.Shyam Bihari 25 his cross examination by Ld. APP for the State he denied that on 23.08.2008, he alongwith Mantu and Tapan Mahaldar was working in the project of Metro site near Khalsa college, Delhi University. He denied that he was told that accused Shyam Bihari called both of them and pressurized them to clear the blockage of the pipes and under pressure they cleared the blockage. He further denied that he was told that after the blockage of the pipe, one pipe stuck against the chest of Tapan (deceased) due to which he sustained injuries and he became unconscious. He denied that he stated to the police officials that the death of Tapan happened due to rash and negligent act of accused Shyam Bihari. PW-6 denied making of the statement from mark X to X. PW-7 Sontu Mahaldar also deposed on the same lines and he also denied that he stated to the police officials that the death of Tapan happened due to rash and negligent act of accused Shyam Bihari. PW- 7 also denied making of the statement from mark Y to Y. PW-8 Tej Bahadur stated in his examination that he visited the spot at the request of SHO PS Maurice Nagar and inspected the place of incident. His detailed inspection report is Ex.PW-8/A. In the said report it is mentioned that "no machine was found available at the time of enquiry nor his office was competent to conduct the inspection of the machine as the same was of technical in nature." PW-9 HC Sanajy Kumar stated about clicking the photographs of the spot which Ex.PW- 9/A (Colly). PW-11 is Retd. SI Ranvir Singh who deposed that the complaint Montu Mahaldar told about the incident and his statement Ex.PW-3/A was recorded by the IO. He prepared rukka Ex.PW-11/B on FIR no.116/08 Maurice Nagar page no.25 of 28 State Vs.Shyam Bihari 26 the basis of which FIR was got registered, site plan was prepared Ex.PW-11/C. In his further examination he has talked about how the investigation was conducted in the present case and he identified the offending machine as Ex.P-1 and photographs of the same already Ex.PW-9/A. In his cross examination he denied that he never joined the investigation of the present case and that all the proceedings were carried out by him while sitting in PS. PW-12 Dr. Harish Kumar stated that on 24.08.2008 , he was posted as Medical Director Nulife hospital. On that day , one patient namely Tapan Mahaldar was brought to the hospital. He had medically examined the patient. The patient was having severe injury marks on left side of face and bleeding from nose and mouth and left eye and the patient was brought dead . He prepared the report of the same already Ex.PW-11/D. PW-13 Devender Gill, Senior Additional GM, Delhi Metro Rail Corporation, stated that he conducted local enquiry at the spot and prepared the preliminary report Ex.PW-13/A. The site was under the supervision of accused Shyam Bihari at the surface level. His detailed investigation report is Ex.PW-13/B. He stated that one of the cause of the incident was that the competence of the site supervision had been acquired through experience of working for years and not by/thorugh formal training/qualification. In his cross examination he stated that it is correct that his inquiry was fact finding and not fault finding. Sh. Manoj Dutt was supervising the concreting at the track level. Mohd. Arif Khan was the Sr. Site Engineer at the site. Perusal of Ex.PW-13/A reveals that in the preliminary report it is mentioned by PW-13 that immediate FIR no.116/08 Maurice Nagar page no.26 of 28 State Vs.Shyam Bihari 27 causative factors are that "the concrete pipe was going down the stair shaft and had two 90 degree bends at the entrance level and few more at the bottom of the stairs. The pipe joint couplers failed due to the hammering by the deceased or due to excessive pressure and loosening because of vibrations due to improper grouting of pipe line." In the final report of PW-13 i.e. Ex.PW-13/B the same reasons have been cited including the following factors:-
(i) Improper routing of concrete pipe.
(ii) The control and supervision of the concrete work was not competent as the staff supervising the work at the time of accident had no formal training/qualification.
(iii) The contractors construction team and safety organization was not adequately manned.
31. Thus in view of the testimony of the aforesaid prosecution witnesses, it cannot be said that the death of the deceased Tapan Mahaldar occurred solely due to the rash and negligent act of the accused Shyam Bihari. No doubt he was the supervisor at the surface level but as per testimony of PW-13 Devender Gill Sr. Addl. GM, Sh. Manoj Dutt was supervising the concreting at the track level. Mohd. Arif Khan was the Sr. Site Engineer at the site. The incident occurred due to all the reasons cited above and the unfortunate death of the deceased Tapan Mahaldar ensued for which only the accused Shyam Bihari cannot be held liable . Further PW-3 Mantu Mahaldar has clearly stated in his examination that " no one is responsible for the death of his brother." He further denied the suggestion in his cross examination by FIR no.116/08 Maurice Nagar page no.27 of 28 State Vs.Shyam Bihari 28 Ld. APP for the State that death of his brother occurred due to rash and negligent act of the accused and that the accused is responsible for the death of his brother. Hence, the charge U/s 287/304 A IPC is not made out against the accused Shyam Bihari and he stands acquitted for the said offence in the present case for the aforementioned reasons.
32. However, perusal of case record shows that accused Shyam Bihari was declared PO vide order dated 03.10.11 in the present case. Testimony of PW-14 HC Ashish Nain reveals that accused was apprehended by him and the IO. A kalandra was prepared U/s 41.1 (C ) which is Ex.PW-14/A, Accused was arrested vide arrest memo Ex.PW- 14/B. His personal search was conducted vide search memo Ex.PW- 14/C. PW-15 SI Ram Dutt has also deposed the same. He further stated that he also prepared DD No. 23-A on the same day which is Ex.PW- 15/A. Thereafter he prepared the supplementary chargesheet U/s 174 A IPC and file the same before the Court. Consequently, the offence U/s 174 A IPC is made out against the accused and he stands convicted for the offence U/s 174 A IPC.
Judgment pronounced in open Court.
Necessary BB u/s 437A CrPC furnished and accepted.
Put up for order on sentence on 24.01.2020 FAHAD Digitally signed by FAHAD UDDIN UDDIN Date: 2020.01.24 17:22:07 +0530 Announced in the open court (FAHAD UDDIN) today itself Metropolitan Magistrate-01 (Central), Tis Hazari Courts, Delhi/17.01.2020 FIR no.116/08 Maurice Nagar page no.28 of 28 State Vs.Shyam Bihari