Delhi District Court
State vs . Hari Ram on 2 November, 2012
IN THE COURT OF SH. SHARAD GUPTA, MM-06 SOUTH WEST , DWARKA,
DELHI
STATE Vs. Hari Ram
JUDGEMENT
(a) The FIR No. of the case : 17/08
(b) The date of commission of : 18.01.2008
offence
(c) The name of complainant : HC Ved Prakash
(d) The name, parentage etc. of : Hari Ram s/o Sh. Chhote Lal
accused R/o D53, PartIII, Gali No. 49,
Mahavir Enclave, Uttam Nagar,
New Delhi.
(e) The offence complained of/ : 288/337/304 AIPC
proved
(f) The plea of accused : Pleaded not guilty
(g) The date of institution : 18.12.2009
(h) The final order : Acquitted
(i) The date on which order was : 26.10.2012
reserved
(j) The date of such order : 09.11.2012
k) Brief statement of the reasons
for the decision
1. The case of the prosecution against the accused is that on 18.1.08 at about 1 p.m. while repairing constructing house bearing no. V 126 Bhagwati Vihar the accused rashly or negligently omitted to take such care with regard to said building as was sufficient to guard against any probable danger to human life from fall of said building and by his rash and negligent act death of one Durga Prasad was caused. For the said offence FIR no. 17/08 was registered and after usual investigation charge sheet was filed against the accused in court.
2. From the material on record Charge was framed against the accused for the offence U/s 288/304 A IPC vide order dated 03.12.2010, to which he pleaded not guilty and claimed trial.
3. To support its case the prosecution has examined as many as eight witnesses. PW1 HC Harphool assisted the first IO in investigation of the case. PW 2 Rajesh Nigam was the owner of House no. V126 Bhagwati Vihar and gave contract for construction of the house to the accused for construction of two rooms. PW 3 ASI Rajender Singh registered FIR no. 17/08 being the duty officer. PW 4 ASI Ved Prakash is the first IO of the case. PW 5 Rakesh Kumar Medical Record Clerk Mata Channan Devi Hospital proved the MLC of the accused and decased. PW 6 HC Ramesh Kumar DD writer recorded DD 12 A and 17 A. PW 7 Rakesh Kumar Medical Record Clerk Mata Channan Devi Hospital proved the death summaryof deceased Durga Prasad. PW8 SI Siri Kishan is the second IO of the case.
4. The version of the prosecution as adduced in its evidence is that PW2 Rajesh Nigam had given theka for construction of his house V 126, Bhagwati Vihar to the accused for construction of two rooms and the first floor. That the material was to be purchased by the accused and was to be used by him in construction of the house. PW2 told the accused that cement was not in appropriate quantity and was of inferior quality. On 18.1.08 PW2 was informed that chhaja of the first floor of the house had tilted towards down side and two persons had received injuries. PW2 Rajesh Nigam came to the house and saw that chhaja of his house had tilted down and bricks were lying in the street. That on 18.1.2008 PW4 ASI Ved Prakash was on emergency duty from 8 a.m to 8 p.m. On receiving DD No. 12 A Ex.PW12/A, he alongwith PW1 Constable Harphool went to the spot where they found that the injured had been taken to Mata Chanan Devi Hospital. The accused was found fit for statement. However, injured Durga Pd. Was declared dead. PW4 prepared tehrir Ex.PW4/A and sent the same for registration of FIR through constable Harphool. Further investigation was handed over to PW8 SI Siri Kishan who went to the spot and prepared site plan Ex.PW2/B. Dead body of deceased was handed over to his relative vide memo Ex.PW 8/A after due identification vide memos Ex.PW 8/B and Ex. PW8/C. On 18.5.08 the accused was arrested on identification of Rajesh Nigam vide memo Ex.PW2/D and was personally searched vide memo Ex.PW8/D. MLC of deceased has been proved as Ex.PW5/B whereas death summary of deceased has been proved as Ex.PW7/A. DD No. 17A has been proved as Ex.PW6/B. After completion of investigation, charge sheet was filed in court. However, during recording of prosecution evidence, PW 2 Rajesh Nigam did not support the version of the prosecution regarding his knowledge that the accused was using inferior quality cement and factum of arrest of accused at his identification and he was accordingly declared hostile.
5. After completion of prosecution evidence, the accused was examined U/s 281 Cr PC and all the incriminating evidence coming on record was put to the accused. The accused submitted that he is innocent and has been falsely implicated in this case. The accused choose not to lead any DE and the matter was accordingly posted for final arguments.
6. I have heard the Ld. APP for State and the Ld Counsel for the accused and have perused the material on record. In the present case, the prosecution was required to prove beyond reasonable doubt that on 18.1.08 at about 1 p.m. while repairing constructing house bearing no. V 126 Bhagwati Vihar the accused rashly or negligently omitted to take such care with regard to said building as was sufficient to guard against any probable danger to human life from fall of said building and by his rash and negligent act death of one Durga Prasad was caused.
7. Before proceeding any further, it would be germane to have a look at the settled proposition of law on the point. The expression "Rash and Negligent Act"
occurring in section 304 A has been elucidated and elaborated in a catena of judicial pronouncements. It is the settled law that 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 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. 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. 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 precaution 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 that, if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. Illegal omission is "act" under this section and may constitute an offence if it is negligent. Death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans, it is not enough that it may have been the cause sine qua non. Thus, "rash or negligent act" referred to in the section means the act which is the immediate cause of death and not any act or omission, which can at most be said to be a remote cause of death. To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little trip of mistake that will make a man so liable. The act or omission impugned must also be the direct cause of the death/damage. In 2007 CRI. L. J. 486 "B. E. Chandrashekar v. State of Karnataka" it was held as under:
It is to be noticed that the rash and negligent act referred to Section 304A means an act which is an immediate cause of death and not an act which can, at best be said to be remote cause of death. No doubt, the act of negligence would be to the driving of any vehicle in a rash and negligent manner as to endanger human life or likely to cause harm or injury to hurt a person where no harm has actually been caused. The requirement is that the death of any person must have been caused by the accused by any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of the person and the rash and negligent act of the accused.
8. Similarly, in the case of Ambalal Bhat v. State of Gujarat reported in AIR 1972 SC 1150 the Apex Court, while dealing with the applicability of Section 304A has held that the act causing the deaths "must be the causa causans". Elaborating the said observations, following the observation made in the case of Emperor v. Omkar Rampratap reported in (1902) 4 Bom LR 679 has held that the act causing the deaths "must be causa causans; it is not enough that it may have been the causa sine qua non". It has been held in 1991 CRI. L. J. 473 "B. P. Ram v. State of Madhya Pradesh" that the "rash or negligent act" means the act which is the immediate cause of death and not any act or omission, which can at most be said to be a remote cause of death. To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little trip of mistake that will make a man so liable.
9. In this case the prime allegation against the accused are of rashness or negligence in omitting to take sufficient guard during constriction of house No. V126 Bhagwati vihar. The prosecution has alleged that the accused used inferior cement and also used lesser quantity of cement in the construction of the said house due to which linter and chhaja of the said house fell down and caused death of Sh.Durga Prashad. To discharge its onus, the prosecution has examined inter alia examined PW2 Rajesh Nigam who was the owner of house No. V126, Bhagwati Vihar. PW2 Rajesh Nigam has deposed that he gave contract of construction of his house at the said plot by the accused. That the material was to be purchased by the accused and was to be used by him. That initially, he had told the accused that the cement was not being used in appropriate quantity and thereafter, the accused increased the quantity of cement in the mixture used by him for construction. That on 18.01.2008 he came to know about the incident and at his instruction his wife took the injured accused and deceased Durga Prashad to Mata Chanan Devi Hospital where PW Rajesh Nigam also reached. PW2 Rajesh Nigam was cross examined by the ld. APP for the state after declaring him hostile. In his cross examination, PW2 has stated that he came to see construction of his house and saw that the accused was not mixing appropriate quantity of cement. However, he denied the suggestion that inferior quality of cement was being used in construction of the house. Further in his cross examination by the accused, PW2 Rajesh Nigam unequivocally stated that he did not know about the proportion in which sand and cement is mixed for laying down linter. It is thus apparent from the testimony of PW2 Rajesh Nigam that he was unaware about the quality of the cement used. No evidence has been brought on record by the prosecution to show that in fact inferior quality of cement was being used in the construction. PW2 Rajesh Nigam has stated in his cross examination that he had earlier also got work done from the accused at B 608, Binda Pur, DDA Flats.
10. In the present case, no samples of the cement being used were obtained by the IO for establishing that in fact, inferior quality of cement was being used in the construction. Thus there is no evidence on record to show that in fact, inferior quality of cement was being used by the accused. Further more, contention of the prosecution is that lesser quantity of cement was being used in the construction. In this regard, PW2 Rajesh Nigam undoubtedly stated that the accused was using lesser quality of cement but he has himself also stated that after saying so, the accused started using more cement in the construction. Further more, PW2 was not the expert witness and could not say anything about the proportion that how much sand , badri and cement was to be mixed for laying down linter and he has deposed to this effect in his cross examination. In these circumstances, no inference can be drawn from the testimony of PW2 that in fact lesser quantity of cement was being used in the construction when he himself was not aware about the exact quantity of the cement to be used in the mixture for construction of the said house. There is no allegation against the accused in the entire charge sheet that he was negligent or rash in putting up scaffolding at the spot or that there was any structural flaw in the design of the house. Thus, there is no material on record to show how the accused was rash or negligent in construction of house at the spot.
11.It can now be seen that whether the manner of happening of the incident itself would be indicative of any rashness or negligence on part of the accused. Refernece might be had here to the doctrine of res ipsa loquitur. It has been held in 1979 CRI. L. J. 1374 "Syad Akbar v. State of Karnataka" SC that the doctrine of Res Ipsa Loquitur is not applicable to criminal trials. It has been held: The primary reasons for nonapplication of this abstract doctrine of res ipsa loquitur to criminal trials are : Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent, until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof, in Civil and Criminal proceedings. In Civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in Criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
12.Thus, the principle of res ipsa loquitur can not be used in the facts of the instant case where there is precious little on record to show how and in what manner the incident took place and the only evidence in that respect direct or hearsay is that the death took place due to falling of the linter and chajja of the house under construction. There is no allegation attributing any rash or negligent act or omission to the accused on record. The testimony of PW2 Rajesh Nigam only establishes that the accused was incharge of construction at the said house bearing number V 126 Bhagwati Vihar. However, the said averment is not sufficient to hold the accused liable under section 304A IPC. To establish its case under section304 A IPC, the prosecution has to establish that the accused acted rashly or negligently and that the death occurred as a direct result of the rash and negligent act/omission. As observed earlier, the prosecution has only been able to establish that the death occurred as a result of falling of the chajja and linter of the house under construction and that the accused was in charge of construction at the said house. The prosecution has not been able to establish any negligence on part of the accused. The prosecution has not been able to establish that in fact lesser quantity of cement or inferior quality of cement was used in construction of the said house. There is no allegation against the accused in the entire charge sheet that he was negligent or rash in putting up scaffolding at the spot or that there was any structural flaw in the design of the house. It thus appears that prosecution has not been able to establish a direct nexus between the factum of the accused being the site in charge and the death of the deceased.
13. It is a settled proposition of law that the prosecution has to bring home the guilt of the accused beyond reasonable doubt. However, the accused cannot be convicted on the basis of conjectures and surmises. Accordingly, the accused is acquitted from the charges u/s 288/337/304 AIPC. His bail bonds/surety bonds stand cancelled. Surety is discharged. File be consigned to record room after compliance of section 437A CrPC.
ANNOUNCED IN THE OPEN COURT
TODAY on 9th November , 2012 (SHARAD GUPTA)
MM-06/DWARKA/DELHI