Delhi District Court
State vs . Ashwani Kumar Page No.1 Of 12 on 15 December, 2016
State Vs. Ashwani Kumar Page No.1 of 12
IN THE COURT OF DR.JAGMINDER SINGH:
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Ashwani Kumar
FIR No : 161/2010
U/s : 304-A IPC
P.S. : Sector-23 Dwarka
JUDGEMENT
1. Sl. No. of the Case : 02405R-013796-2011
2. Date of commission of offence : 22.05.2010
3. Date of institution of the case : March, 2011
4. Name of the complainant : DD No.3, PP Dwarka Court Complex, dated 23/05/2010
5. Name of accused, parentage & : Ashwani Kumar address S/o Sh.Surender Kumar, R/o R/o WZ-306C, Palam Village, Mohalla Chotiyal, Palam, New Delhi.
6. Offence complained off : u/s 304A IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved: Not reserved
9. Final order : Acquitted
10. Date of final order : 15.12.2016 Brief statement of reasons for decision :
1. In the present case, allegations against the accused FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.2 of 12 are that on 22/05/2010 at about 09.15 p.m. at Pump House, Swimming Pool, Indraprastha School, Sector-10, Dwarka, New Delhi, he being proprietor of M/s ADI Enterprises having the contract of maintenance of the Swimming Pool and Pump House had acted negligently and rashly with the said pump house and swimming pool of IP School which ultimately caused electrocution to the Shashank Kumar Shau and caused his death not amounting to culpable homicide. On receiving of DD No.3, PP Dwarka Court Complex, dated 23/05/2010, SI Satish Kumar reached at Ayushman Hospital where deceased was declared brought dead and on the basis of facts & circumstances, the present case registered and after completion of the investigation, charge-sheet was filed against the accused for the offence u/s 304-A IPC.
2. Accused was summoned. Copy of charge sheet was supplied to the accused. On the basis of prima-facie evidence on record notice served upon the accused for offence punishable u/s 304-A IPC to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the notice, prosecution has filed the list of 14 witnesses and examined 8 witnesses.
4. PW1 HC Sukhdev Singh registered the FIR of present case, copy of which is Ex.PW1/A and his endorsement on Rukka in FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.3 of 12 this regard is Ex.PW1/B.
5. PW2 Sh.Sarat Kumar Shau & PW3 Sh.Sanjay are relative and brother of the deceased Shashank Kumar Shau respectively. They identified the dead body of the deceased and received the same after postmortem vide memo Ex.PW2/A.
6. PW4 Sh.Vishwajeet Pusti stated that at the time of incident, he was working as Pump Operator at IP School, Swimming Pool, Dwarka. Deceased Shashank Shau was working with him as helper. On the day of incident at about 08.45 PM, the last shift was over and they closed the plant and he went to his room for cooking. He went outside for natural call. After sometime the security guard informed him that his helper Shashank Shau was lying in Park adjacent to swimming pool. He immediately reached there and called Shashank Shau but he did not respond. Thereafter, he called the accused and told him regarding the incident. Accused came at the spot within 5 minutes and took Shashank Shau to hospital. Thereafter, he came back to his room.
7. PW5 A.S. Rana is the chairman of IP School, Sector-10, Dwarka. He had submitted the photocopies of documents of swimming pool in the school i.e. Mark-A1 to A7 which were seized vide memo Ex.PW5/A. He had also submitted return submission FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.4 of 12 Ex.PW5/B written by him to the Incharge PP Sector-10, Dwarka Court Complex, being authorized signatory.
8. PW6 HC Kalu Ram stated that on 22-23/05/2010, he was posted at PP Dwarka Court Complex and was on emergency duty. On receipt of DD No.3 i.e. Ex.PW7/A regarding death of one boy due to electrocution at IP School, he along with Ct.Belas reached at Ayushman Hospital, where the doctor had declared that body had brought dead. Meanwhile, SI Satish Kumar also reached there and conducted further investigation. The dead body was sent to mortuary through Ct.Belas. He along with SI Satish Kumar went to the spot, where crime team inspected the spot. No eye witness was found at the spot. IO prepared Tehrir and got the case registered through him.
9. PW7 Insp. Satish Kumar stated that on 22-23/05/2010, he was posted as Incharge, PP Dwarka Court. On receipt of DD No.3 Ex.PW7/A, he reached at Ayushman Hospital, he collected MLC of the deceased who was declared brought dead due to electrocution. The dead body was sent to DDU Hospital through Ct.Belas along with request letter Ex.P1 to preserve the dead body in the mortuary. He along with HC Kalu Ram went to spot.
Crime team inspected the spot. No eye witness was found there. He prepared Rukka Ex.PW7/B and got the case registered through FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.5 of 12 HC Kalu Ram. At about 04.00 AM, one Vishwajeet Pusti i.e. Pump Operator, Swimming Pool came at the spot who was eye witness of the incident. He recorded his statement and prepared site plan Ex.PW7/C at his instance. On 24/05/2010, he prepared inquest papers Ex.P2 (Colly) and got conducted the postmortem of the deceased and handed over the dead body to relatives. On 24/05/2010, he sent request letter to the Director, FSL Rohini Ex.PW7/F for conducting the spot inspection. On same day, Sh.Prashuram, Sr.Scientific Officer (Physics) along with his team inspected the spot. On 31/05/2010, the report of the inspection Ex.PW7/G was received. He gave notice Ex.PW7/H to the owner/Director of IP School, Sector-10, Dwarka to join the investigation. On 01/06/2010, Mr.A.S. Rana, Chairman of IP School came to the police post and handed over the documents i.e. Mark-A1 to A7 and Ex.PW5/B. These documents were seized vide memo Ex.PW5/A. On 11/06/2010, the accused Ashwani Kumar joined the investigation. He was arrested and personally searched vide memos Ex.PW7/I & PW7/J respectively. After completion of investigation, he filed the charge-sheet.
10. PW8 Sh.Prashuram Singh the Asstt. Director (Physics), FSL, Rohini, New Delhi stated that on 24/05/2010, a request letter for expert team was received in their office for inspection of the FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.6 of 12 spot, the same was marked to him. He along with Sh.S.S. Badwal, SSO (Physics), Sh.Ravikant Gaur, Technician (Electrical) & Sh.Saurav Pathak (Scientific Associate) went to spot. They had inspected the spot. After examination/inspection of scene, they gave their opinion. According to their opinion, the exact point of leakage of electric current could not be ascertained, however, in view of the observations, possibility of leakage of current to Mattel frame cannot be ruled out. His report is Ex.PW7/G.
11. No other PW was examined. Accused admitted the genuineness of MLC of deceased Ex.MX & PMR of deceased Ex.P1 vide his separate statement. Thereafter, PE closed. Statement of accused recorded under Section 281 Cr.P.C. in which he denied all the allegations leveled against him. Accused did not opt for DE. Thereafter, final arguments heard.
12. I have heard the arguments of Ld. APP for State and accused and perused the record carefully. Ld.APP for State argued that the prosecution had proved the case beyond reasonable doubts against the accused and accused is liable to be convicted and for maximum punishment. Ld.APP further stated that the eye witness has deliberately not spoken the true facts. On the other hand accused stated that no any offence was committed by him. There was no any fault on his part in the incident in question. The FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.7 of 12 deceased was not died or electrocuted because of his rashness or negligence. He is implicated falsely in this case by the police. He further stated that he is facing the trial of this false case since last more than 5 years, therefore, he is liable to be acquitted.
13. Let us first discuss basic legal propositions of law on penal provisions of Section 304-A IPC. Section 304-A Says:
"Whoever cause the 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"
14. The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash, or negligent act of the accused. In Kurban Hussain Mohd. Rangawalla V/s State of Maharashtra AIR 1965 SC 1616 - "It was observed that Section 304-A by it's own definition totally exclude the ingredients of Section 299 and 300 of IPC. In order to attract the Section 304-A, death must be direct result of rash and negligent act of accused and the act FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.8 of 12 must be efficient cause without the intervention of another's negligence. It must be the 'causa causans, it is not enough that it may have been the causa sin qua non. Thus where death is not the direct result of rash and negligence act on the part of the accused and was not proximate and sufficient cause without the intervention of another negligence, then offence under Section 304-A IPC not established".
15. In the present case, prosecution had produced only one eye witness of the incident. The case of prosecution is based solely on the deposition of the said eye witness i.e. Sh.Vishwajeet Pusti who is examined as PW4.
16. As per the prosecution story, PW4 was present at the spot at the time of incident and he had seen the deceased when he was electrocuted on touching of iron door of the pump room. However, when PW4 was appeared before the Court, he turned hostile and not supported the prosecution case. During his examination-in-chief, he stated that at the time of the incident, he was not present there as after closing the plant he had already went to his room, where he was informed by the security guard that deceased was lying in the park adjacent to the swimming pool. The said security guard as stated by PW4 was neither cited nor examined as a witness by the prosecution. PW4 had also not FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.9 of 12 stated that the said guard had seen the occurrence.
17. PW4 was cross-examined at length by Ld.APP for the State. During cross-examination, PW4 specifically denied the suggestion that he had seen the deceased came in the pump room in wet condition and when he touched the iron gate, he was electrocuted. According to his statement Ex.PW4/PX1 given to the police, he (PW4) also suffered electric shock when he tried to rescue the deceased from electrocution, but he completely denied this fact before the Court. There is no any medical document or other evidence showing any injury regarding the electric shock allegedly suffered by PW4. PW4 also denied the suggestion that in the pump house, the electric wires were not properly connected. Therefore, in whole statement of only eye witness PW4, nothing incriminating against the accused came on record.
18. Other important evidence produced by the prosecution is the FSL report prepared by the experts Ex.PW7/G which is proved by PW8. According to the report Ex.PW7/G, inside the pump there were many naked wires found in disconnected and hanging condition. It is also mentioned in the report that control panels and other electrical utilities were not earthed. However, in the opinion no any exact leakage point was ascertained by the FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.10 of 12 experts as the opinion reads as "Exact point of leakage of electric current could not be ascertained however in view of above observations possibility of leakage of current to metal frame cannot be ruled out." The incident was occurred on 22/05/2010 at about 09.15 PM and the inspection by FSL Experts was conducted on 24/05/2010 at about 02.20 PM. Nothing is stated by the IO that during the period i.e. from occurrence till examination, the spot was sealed. There is no evidence that anybody remained at the spot to look after the spot. Therefore, prosecution failed to establish that the scene of crime was remained intact or that the articles including electrical items at the spot were remained untampered till the examination of the spot by the FSL team. According to the prosecution story, the deceased was electrocuted when he touched the iron gate of the pump house, but there is no evidence placed on record by the prosecution to show that whether and how the alleged iron gate was having electric current. According to IO/PW7, the photographs were also taken by the crime team but no any photographs of the spot are placed on record by the prosecution during evidence.
19. Further the accused was charge-sheeted that he being proprietor of M/s ADI Entreprises and was having the contract of maintenance of the swimming pool and the pump house, is guilty FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.11 of 12 for rash and negligent act as he had not took the pump house in proper order. During evidence, the prosecution had not placed on record any such original document pertaining to the alleged agreement/contract between the IP School where the incident occurred and the M/s ADI Entreprises. There is also no original document placed on record establishing any connection between M/s ADI Entreprises and the accused. Moreover, because of un- supportive evidence of only eye witness and un-certained expert report, the evidence produced by the prosecution cannot be considered as sufficient to held the accused guilty.
20. All other examined witnesses are only formal procedural witnesses. They are neither eye witnesses nor their evidence is sufficient to link the happening of the incident with any negligence on the part of accused. The police officials reached at the spot when the incident had already been occurred. The medical evidence are sufficient to prove the injuries sustained by the injured and cause of his death but are not sufficient to link the said injuries with the rashness or negligence of the accused.
21. It is also held by Hon'ble High Court of Delhi in Abdul Subhan Vs. State (NCT of Delhi) that in the absence of any material record or any statutory exception, criminality of the FIR No.161/2010 PS : Sector 23 Dwarka State Vs. Ashwani Kumar Page No.12 of 12 accused cannot be presumed.
22. Hence, Court comes at the conclusion that the prosecution has failed to prove the essential ingredients of the offence alleged against the accused beyond reasonable doubt due to lack of evidence. Therefore, accused Ashwani Kumar S/o Sh.Surender Kumar stands acquitted of the offence punishable u/s 304-A IPC in present case FIR No. 161/2010, PS: Sector 23 Dwarka.
23. Accused is directed to furnish bail bond and surety bond under Section 437-A Cr.P.C. and is also directed to furnish latest passport size photographs of himself as well as of his surety along with their latest residential proof.
Announced in open court
on 15.12.2016 (Dr. Jagminder Singh)
Metropolitan Magistrate-04/ Dwarka
Delhi/15/12/2016
Note: This judgment contains Twelve (12) pages and having my signature on each page.
(Dr. Jagminder Singh)
Metropolitan Magistrate-04/ Dwarka
Delhi/15/12/2016
FIR No.161/2010 PS : Sector 23 Dwarka