Delhi District Court
State vs . : Ram Prakash And Ors. on 1 September, 2012
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN
MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS, NEW
DELHI
State Vs. : Ram Prakash and Ors.
FIR No : 290/96
U/s : 285/337/304 A IPC
PS : Okhla Industrial Area
Date of Institution: 04.02.1998
Date of Judgment reserved for: 13.08.2012
Date of Judgment: 01.09.2012
Brief details of the case
A. Sl. no. of the case 1521/2/98
B. Offence complained of
or proved U/s 285/337/304 A IPC
C. Date of Offence 09.05.1996
D. Name of the complainant Niranjan Tirky
s/o Sh Jahlu Tirky, r/o
504/2, Devli Gaon, Delhi
E. Name of the accused (1) Ram Prakash
s/o Sh Shiv Vansh
r/o J30, Okhla Railway
Crossing, New Delhi110020
(2) Krishan Kumar
s/o late Sh Raghuvir Singh
Verma, r/o A181, Defence
Colony, New Delhi110024.
(3) Durga Prasad
s/o Sh Hem Lal
r/o C26, Harkesh Nagar,
New Delhi (PO)
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 01.09.2012
Judgment
On the accusation of knowingly or negligently omitting to
FIR no. 290/96 1/13
take such order with a combustible matter as is sufficient to guard
against any probable danger to human life from such combustible
matter, accused Krishan Kumar, Ram Prakash and Durga Prasad were
sent up to face trial for committing offences punishable under Section
285/337/304A IPC. Their omission resulted in an accident wherein a worker of the factory lost his life while 8 other workers sustained multiple burn injuries.
Brief facts as unfolded during the trial
2. The matrix of the facts as unfolded during the trial is that accused Krishan Kumar was the owner of factory no 13, OIA, PhIII, New Delhi (hereinafter referred to as the 'factory') while accused Ram Prakash and Durga Prasad were employed by him as supervisors. The factory was involved in manufacturing of plastic sheets which called for heating of liquid acrylic at a high temperature. On 09.05.1996, during the absence of Ram Prakash, the workers at the factory were trying to place a drum containing heated chemical in cold water. The drum fell on the ground and the heated chemical spilled which caused fire at the factory. 9 workers, including Brahm Pal Singh (PW2), Shiv Lal Yadav (PW3) and Niranjan Tikri (PW4) sustained burn injuries. The information about the accident received at the police station, OIA, was recorded as DD number 9 dated 09.05.1996 and SI Bal Kishan, HC Surender Pal and Ct Arun Kumar reached the spot. The injured workers FIR no. 290/96 2/13 were taken to Safdarjang hospital where a worker Lal Bahadur succumbed to his injuries on the next day. In the said back ground, the present FIR bearing no 290/96 under Section 285/337/304 A IPC was registered at PSOIA.
3. The necessary investigation was carried out and requisite documentation was done. On completion of the investigation, chargesheet was put to the Court. The copies of the chargesheet were supplied to the accused persons and notice under Section 285/337/304 A IPC was framed against him to which they pleaded 'not guilty' and claimed trial.
Witnesses examined
4. In order to substantiate the charges against the accused, prosecution examined seven witnesses.
PW1 Rajbir Singh (Fire Officer, Janak Puri fire station) mentioned that he reached the spot on a fire brigade and extinguished the fire. He stated that he noticed that a drum containing chemical was burning and injured workers were lying on the ground. He deposed that the factory was found completely equipped with fire fighting instruments and fire extinguishers.
PW2 Brahmpal Singh, PW3 Shiv Lal Yadav & PW4 Niranjan Tirky (Injured workers/eye witnesses of the incident) have narrated the entire episode. Each one of them gave an account of the incident and the FIR no. 290/96 3/13 injuries sustained by him.
PW5 Ct Mahender Singh (Police Official who initially reached the spot alongwith the IO) has mentioned that injured persons were taken to Safdarjang hospital.
PW6 Ct Sanjeev Kumar (Police official) stated that he is not aware about the facts of present case.
PW7 HC Arun Kumar (Police official) mentioned that he reached the spot alongwith Ct Mahender and saw that a fire brigade was trying to extinguish the fire. He took the rukka to the police station and got the FIR registered.
5. Both the accused in their statements under Section 313 Cr. PC pleaded innocence and claimed that they have been falsely implicated. Although, Krishan Kumar admitted that he was the owner of the factory but stated that he was not negligent. He mentioned that he had provided adequate safety guards to all the workers and the supervisor Ram Prakash was fully competent to handle the chemical substance. Similarly, Ram Prakash also admitted the accident but denied his presence at the spot. He stated that Durga Prasad was supervising the work at the time of incident and he was having the requisite expertise to handle the chemical substance. None of them chose to examine any witness in defence.
6. Accused Durga Prasad remained absent during the trial and FIR no. 290/96 4/13 he was declared proclaimed offender vide order dated 21.08.2004 passed by the Ld Predecessor.
Arguments
7. I have heard the Ld. APP for State and Ld. Defence Counsel and have carefully gone through the entire material available on record.
8. Ld. APP has contended that prosecution has proved its case to the hilt. He contended that the testimony of eye witnesses establish that accident resulted due to rashness and negligence of the accused persons. He has argued that accused Krishan Kumar, being the owner of the factory, was under an obligation to employ a competent person having the requisite expertise to handle chemical substance at the factory. He has submitted that there is a close nexus between the said omission of Krishan Kumar and the resultant accident.
9. On the other hand, Ld. Defence Counsel has argued that there is no evidence to establish rash and negligence act of the accused. He has submitted that Krishan Kumar had provided adequate safety guards at the factory and the accident resulted due to circumstances which were beyond his control. He has argued that neither Krishan Kumar nor Ram Prakash was present at the spot and no negligence can be attributed to them.
Brief reasons for the decision
10. I have considered the entire evidence in the light of aforesaid FIR no. 290/96 5/13 contentions.
11. The evidence on record primarily constitutes of the testimony of three eye witnesses viz. PW2 Brahm Pal Singh, PW3 Shiv Lal Yadav and PW4 Niranjan Tirky. All these witnesses were employed as workers in the factory and each one of them sustained burn injuries in the accident. Let us peruse their testimony in chronological order.
12. Brahm Pal Singh (PW2) has deposed that accident took place in the absence of Ram Prakash. He stated that Ram Prakash kept the chemical for heating in a drum and thereafter left the factory for taking meals. He has narrated the manner in which the accident took place. He stated that Durga Prasad, who was also working as a helper in the factory, waited for about half an hour for the return of Ram Prakash and thereafter he put the chemical drum into boiling water. He mentioned that after heating the chemical, Durga Prasad tried to put the drum containing chemical in cold water for the purpose of cooling it. He stated that the chemical substance, instead of becoming cooler, started boiling and caught fire from an electric heater which was lying near the drum. The witness has mentioned about the injuries sustained by him and other workers. He stated that accident resulted due to negligence of Durga Prasad and the chemical substance was highly flammable. Brahm Pal stated in his crossexamination that he was doing the job of pasting papers on the plastic sheets manufactured at the factory. He gave a FIR no. 290/96 6/13 description of the factory stating that there were separate rooms for each stage of production. He mentioned that the chemical was stored in a separate portion of the factory which was separated from the portion from where he was working. He stated that at the time of incident, he was doing pasting job in a separate portion of the factory.
13. Shiv Lal Yadav (PW3) has also stated that accident took place in absence of Ram Prakash. He stated that the task of handling chemical substance used to be performed under the supervision of Ram Prakash. He mentioned that accident took place because other workers were handling chemical instead of the expert person who was assigned the task. He admitted in his crossexamination that a temperature indicator was installed on the furnance meant for heating the chemical drum but gave a different version about the absence of Ram Prakash. He mentioned that Ram Prakash was on leave and due to the said reason, Durga Prasad was handling the chemical substance.
14. Niranjan Tirky (PW4) has given an altogether different version of the incident. He stated that the drum containing heated chemical fell on the ground and caught fire. However, he has also mentioned that incident took place in the absence of Ram Prakash. He stated that except Ram Prakash no other person was possessing the requisite expertise to handle chemical substance. He mentioned that no safeguards were provided at the factory to avoid such an incident. This FIR no. 290/96 7/13 witness was examined on 21.02.2008 but his crossexamination was deferred.
15. Ld APP has vehemently argued that the testimony of the eye witnesses establish that accident occurred because a person who was not possessing expertise was handling highly inflammable chemical substance. He has argued that the omission of the owner of the factory (accused Krishan Kumar) in failing to ensure the presence of an expert at the time when the workers were handling the chemical substance has resulted in accident. He has argued that the absence of Ram Prakash from the spot makes him also liable for the accident. He has contended that accident would not have occurred, in case, Ram Prakash would have performed his duty and remained present at the spot at the time when the workers were handling the chemical drum. On the force of the said arguments, Ld APP has submitted that both the accused should be convicted for committing offences punishable under Section 285/337/304 A IPC.
16. I am not impressed with the arguments advance by the prosecution. There are inherent short comings in the arguments. In order to establish charge under Section 304 A IPC, the prosecution is duty bound to establish the rash and negligent act of the accused. This rashness and negligence must be proved on record by leading independent and cogent evidence. There is no scope of raising any FIR no. 290/96 8/13 presumption merely because a person has sustained injuries or died in an accident. In a prosecution for an offence under Section 304 A IPC, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another does not established that death was the result of rash or negligent act or that any such act was the proximate and efficient cause of the death. The prosecution has to establish high degree of rashness and negligence and not mere ordinary lapse and to establish direct connection between the act of the accused and death of the deceased. It was observed by Sir Laurence Jenkins in Emperor V Omkar Rampratap, (1902) 4 Bom LR 679 that the act causing the deaths "must be the cause causans, it is not enough that it may have been the causa sine qua non" This view has been adopted by this court in several decisions.
17. In Kurban Hussain Mohammedali Rangwala Vs State of Maharashtra, 19652 SCR 622: (AIR 1965 SC 1616), the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304 A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. In Suleman Rahiman Mulani Vs State of Maharashtra, (1968) 2 SCR 515 : (AIR 1968 SC 829) the accused who was driving a FIR no. 290/96 9/13 car only with a learner's licence without a trainer by his side, had injured a person. It was held that by itself was not sufficient to warrant a conviction under Section 304A IPC. It would be different if it can be established as in the case of Bhalchandra Vs State of Maharashtra, (1968) 3 SCR 766: (AIR 1968 SC 1319) that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans.
18. Bearing this principles in view, what has to be seen is ; (1) Whether the accused persons were rash and negligent? (2) whether the accident was the direct outcome of their alleged rashness and negligence? and (3) whether there is a close proximity between the injuries sustained by the victims and the alleged negligence of the accused persons? On appreciation of the record, I am of the considered opinion that even if the prosecution's case is taken at it's best, still, it cannot be concluded that the accused persons acted in a rash or negligent manner. Admittedly, Krishan Kumar was not present at the factory at the time when the incident took place. It is the prosecution's own case that Krishan Kumar had employed supervisor Ram Kumar, who was possessing the requisite expertise to handle chemical at the factory. FIR no. 290/96 10/13 Once the owner of the factory has employed an expert for carrying out a typical task at the factory then it is not expected from him that he would always remain personally present at the factory or that he would personally supervise the work at the factory.
19. Rajbir Singh (PW1) has stated that after reaching the factory, he observed that there was proper arrangement of fire fighting instruments and fire extinguishers for dealing with any eventuality. The testimony of this witness goes on to show that the owner of the factory had taken abundant precautions to avoid any injury or mishappening at the factory. Nothing more was called from him. Although, a contradictory version has come on record regarding the absence of precautionary measures but the said version is incomplete. PW4 Niranjan Tirky has stated that no precautionary arrangements were provided at the factory to avoid such type of incident. However, the testimony of this witness is incomplete as he has not withstood the test of crossexamination. It has been held by the Hon'ble Supreme Court in the case of Mr. Ripen Kumar Vs. Department of Customs 2001 (1) JCC (Delhi) 47 that where a witness has not been cross examined, his statement cannot be read in evidence. In view of the said proposition of law as propounded by the Hon'ble Apex court, incomplete testimony of Niranjan Tirky is of no consequence and the same is to be discarded. In case, the statement of this witness is discarded then there is no other FIR no. 290/96 11/13 material to prove that Krishan Kumar omitted to provide any safeguards at the factory or the accident resulted due to any such alleged omission.
20. Now let us see whether the negligence of Ram Prakash has been proved. It is the prosecution's story that Durga Prasad started handling the chemical drum in the absence of Ram Prakash. All the spot witnesses have unanimously mentioned that Ram Prakash was not present at the spot. Brahmpal (PW2) has stated that after Ram Prakash left the factory for taking meals, Durga Prasad waited for half an hour and thereafter, he started handling the chemical drum on his own with the help of Jung Bahadur. Shiv Lal Yadav (PW3) has also given this version. It is not the version of the witnesses that Ram Prakash failed in his duty or that he allowed Durga Prasad to handle chemical in his absence. The witnesses have nowhere stated that Durga Prasad was acting on the directions of Ram Prakash or the owner of the factory. Brahm Pal has mentioned that Durga Prasad was only a helper of the factory and he was not possessing the requisite expertise to handle chemical. In case, Durga Prasad acted on his own volition and started handling the chemical drum in the absence of the supervisor, then no negligence can be attributed for his act to the supervisor Ram Prakash.
21. The record further shows that the investigating officer has not been examined by the prosecution. Whether the factory was inspected by him to see the safety guards provided at the factory? FIR no. 290/96 12/13 whether the drum was seized? What was the nature of the chemical? What was the chemical compound of the chemical substance? All these questions have remained unanswered. In the present circumstances, the examination of the IO was very material and his non examination is fatal for the prosecution's case. The nonexamination of the IO by the prosecution further makes the version doubtful. Reference in this regard can be made to Balwant Singh Vs State of Haryana 2007 (4) CC Cases (High Court) P&H 447.
22. In view of the discussions made in the abovesaid paras, I am of the considered opinion that prosecution has miserably failed to prove charges against either of the accused. The accused Ram Prakash and Krishan Kumar stand acquitted of the charges under Section 285/337/304 A IPC.
23. Bail Bonds stand cancelled. Sureties stand discharged. Endorsement placed on the documents of the sureties be cancelled and the same be returned to them, if retained on record.
24. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik)
on this day of 01.09. 2012. Metropolitan Magistrate
Saket Courts, Delhi
FIR no. 290/96 13/13
FIR no. 290/96 14/13