Delhi District Court
State vs . Naveen Diwan on 2 January, 2010
FIR NO. 184/99
U/S 287/304 A IPC
PS: Narela (Bawana)
State Vs. Naveen Diwan
IN THE COURT OF SH. DEEPAK WASON,
METROPOLITAN MAGISTRATE:ROHINI COURTS:DELHI
FIR NO. 184/99
U/S 287/304 A IPC
PS: Narela (Bawana)
State Vs. Naveen Diwan
Date of Institution of case:05.02.00
Date of Judgment reserved:02.01.2010
Date of which Judgment pronounced:02.01.2010
JUDGMENT
Sl. No of case :1090/2
Date of commission of offence :07.07.99
Name of the complainant :Sh. Ashok Yadav
Name and address of accused :Naveen Diwan
S/o Lt. Sh. Bijender
Kumar Diwan
R/o H. No. B-60,
Pushpanjali Enclave,
Pitampura, Delhi.
Offence complained of :287/304 A IPC
Plea of accused :Pleaded not guilty
Date of order :02.01.2010
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
The accused Naveen Diwan S/o Sh. Bijender Kumar Diwan has been sent up for the trial for the offence U/S 287/304 A IPC on the ground that he didn't take any Pg no. 1 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan precaution/safety measures for the general public, due to which one Om Prakash was electricuted while working on the machine in the said factory and died & he thereby committed the offence punishable U/S 287/304 A IPC and on the basis of which FIR no. 184/99 was registered at PS Narela (Bawana).
2. After investigation, chargesheet was filed against the accused & after supplying the copies to him in compliance of Section 207 Cr.P.C, a notice U/S 304 A IPC was served upon accused on 02.03.07, to which the accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined 10 witnesses. PW1 Dr. Rajesh Gupta, PW2 Ct. Shammi Kapoor, PW3 Shashi Bhushan, Executive House Keeping, Jaipur Golden Hospital, PW4 W/HC Saroj Bala, PW5 Sh. Radhey Shayam, PW6 Sh. Ashok Yadav (complainant in the present case), PW7 Sh. Shambhu Chaudhary, PW8 Sh. Narender Kumar, PW9 Sh. Munna Singh & PW10 SI Bansi Lal, IO in the present case.
4. PW1 is Dr. Rajesh Gupta and he has deposed that on 08.10.99, he was posted at Civil Hospital, Mortuary, Subzi Mandi as CMO and on that day he conducted the post mortem on the body of deceased Om Prakash, aged about 25 Pg no. 2 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan years, male, which was sent by ASI Bansi Lal and was identified by Ct. Shammi Kapoor. The detailed post mortem report is Ex. PW1/A. It was opined by the Doctor that electric current mark was anti-mortem and death was due to electrocution and the time since death was about 12 hours. He was not cross examined.
5. PW2 is Ct. Shammi Kapoor and he has deposed that he did not remember the exact date and month but it was in the year 1999 & he was posted at PS Bawana as a Constable. He had joined the investigation in the present case and had accompanied IO ASI Bansi Lal to Prahladpur Industrial Area, where they came to know that a worker had died due to electrocution. He further deposed that he did not know anything about this case. This witness was declared hostile and on the request of Ld. APP, he was cross examined. In his cross examination, he admitted as correct that he had joined the investigation in this case on 07.07.99. He didn't know whether he had accompanied IO to Jaipur Golden Hospital or not or whether some pullandas were handed over by the IO to the doctor concerned at Jaipur Golden Hospital or not. Perhaps, at the hospital, statement of one Ashok Yadav was recorded b the IO. He didn't know whether he had taken rukka to the PS or not or accused Naveen Diwan Pg no. 3 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan was arrested in his presence or not. Seizure memo regarding pullandas Ex. PW2/A, arrest memo Ex. PW2/B, personal search memo Ex. PW2/C, identification statements regarding identification of dead body Ex. PW2/D and Ex. PW2/E and handing over memo of dead body to legal heirs Ex. PW2/F were shown to this witness and he admitted as correct that all the above said exhibits bore his signatures at pt. A but he could not say, where he had signed the same. He denied the suggestion that he had won over by the accused.
6. He was cross examined by Ld. counsel for accused and in his cross examination he deposed that he denied the suggestion that dead body of the deceased was seen by him for the first time in the Jaipur Golden Hospital. He volunteered that he had seen the dead body of the deceased at the place of occurance of death. He could not say at what time he saw the dead body of the deceased in factory premises. He denied the suggestion that he never saw the dead body in the said premises. He admitted as correct that Ex. PW2/A to Ex. PW2/F were signed by him through the IO at one point of time only. He admitted as correct that the said accident did not take place in his presence. He didn't know who is Ashok Yadav. He even cannot say whether Pg no. 4 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan Ashok Yadav had given any statement in his presence or not.
7. PW3 is Shashi Bhushan and she has deposed that she is working as an Executive House keeping in Jaipur Golden Hospital since October'96 and she had brought the record pertaining to MLC no. 3963 and the said MLC was prepared by Dr. K.R. Dhar, who had left the services of the Hospital. The said MLC bears the signatures of Dr. K.R. Dhar at pt. A. She identified the signature of Dr. K. R. Dhar as she had seen her writing and signing in course of her duty. She was not cross examined.
8. PW4 is W/HC Saroj Bala, the Duty Officer, who registered the FIR in the present case. She is formal in nature. She was not cross examined.
9. PW5 is Radhey Shayam and he has deposed that he is a photographer by profession and runs a photo studio in the nae of Happy Photo Studio at Village Prahalad Pur. He did not remember the exact date, month and year but in the year 1999, he was called in Wire Factory at Village Prahladpur by police official of PS Bawana and as per the directions of the IO, he took photographs of the machines and wires etc. Photographs alongwith negatives are collectively Ex. PY.
10.He was cross examined and in his cross examination he Pg no. 5 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan deposed that he didn't know the name of the police official, who asked him to take the photographs. One police official was present with him, when he took the photographs however the accused, the owner and manager of the building were not present there. He could not say whether the photographs Ex. PX pertains to the premises belonging to the accused or not. He denied the suggestion that he deposed falsely.
11. PW6 is Sh. Ashok Yadav, he is also a material witness and he has deposed that in the year 1999, he was working in a factory at Village Prahlad Pur & his brother Om Prakash was also working in the same factory. On 07.07.99 while working on a machine, 'Pataka' of the machine broke down upon which his brother tried to repair & suddenly his brother received an electric shock and fell down. Thereafter, one Munna Singh informed Naveen, the owner of the factory upon which he came to the factory and took his brother to the Hospital. On the next morning at about 8:00 a.m, police met him and recorded his statement Ex. PW6/A. His brother expired in the Hospital. After post mortem, dead body of his brother was handed over to him. Identification statement & handing over memo of dead body in this regard is Ex. PW2/E & Ex. PW2/F respectively. On the same day, police visited Pg no. 6 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan the factory and took photographs & no further proceedings were done by the police in his presence. This witness was declared hostile and on the request of Ld. APP, he was cross examined. In his cross examination, he has deposed that he told the foreman that there was some defect in the machine but he had not complained about the same to the owner of the factory. He denied the suggestion that accused was arrested by the police in his presence. Personal search memo of accused Ex. PW2/C was shown to the witness bearing his thumb impression and he stated that his thumb impression might have been obtained by the police at the factory but he was not a ware about the contents of the document and nothing was told to him by the police before obtaining thumb impression.
12. He was cross examined by Ld. counsel for accused and in his cross examination he admitted as correct that the place, where his brother was working was a big hall. He also admitted as correct that there were many electric point/socket in the hall. He admitted as correct that the work on three machines were going on at three different points. He admitted as correct that the job of his brother Om Prakash was to make 'Jalli'. He admitted as correct that his brother was not capable of repairing machine/patta or Pg no. 7 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan any other accessories. He admitted as correct that Munna Singh, foreman was the competent person deployed by the owner for repair of machines or electric instruments/installations. His brother was working at the instance of foreman Munna Singh. He admitted as correct that accused Naveen Diwan was not present in the factory, when the patta of the machine was broken. He also admitted as correct that the owner/accused never asked any worker to carry out any kind of repair in the machine or electrical installations. He didn't know whether his brother got electric shock while repairing the patta or not. He admitted as correct that his brother should have called the foreman Munna Singh for repairing the patta, when it broke down. He had no knowledge whether there was any fault in the installation of any kind of electric shock installation. He could not say whether his brother sustained injuries due to his own fault or not. He didn't know whether the factory premises was taken on rent by Sh. Naveen Diwan or not or accused was negligent and committed the offence. He admitted as correct that that contents of the documents were not read over or explained to him, on which documents his thumb impressions were taken by the police. He admitted as correct that accused/owner had given a compensation of Pg no. 8 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan Rs. 40,000/- to the widow of his brother Om Prakash.
13. PW7 is Sh. Shambhu Chaudhary and he has deposed the he did not remember the exact date, month and year but 10 years back, he used to work in a factory at Village Prahlad Pur. One Om Prakash also work in the factory with him. On that night, when he was sleeping in the factory, the brother of Om Prakash awoke him and told him that Om Prakash received an electric shock. Thereafter, he called foreman Munna Singh, who was sleeping in a room. Thereafter, Munna Singh called the factory owner Naveen Diwan & Om Prakash was taken to Hospital, where he got expired. Police visited the factory and recorded his statement. He deposed that he had not seen the accident and was sleeping at the time, when incident took place. This witness was declared hostile and on the request of Ld. APP, he was cross examined. In his cross examination by Ld. APP, he deposed that statement mark 'A' was shown & explained to this witness from pt. A to A1. He admitted as incorrect to suggest that he had never made any such statement to the police. He denied the suggestion that he had seen the accident or that he had told accused Naveen Diwan to remove defects in the machine. He also denied the suggestion that he had been won over by the accused.
Pg no. 9 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan
14. He was cross examined by Ld. counsel for accused and in his cross examination he has deposed that the hall, in which Om Prakash was working was very big and there were 8 different electric point/sockets & all the electric installations were working in safe condition. He admitted as correct that repairing of machine/pata and electric installation was the work of foreman Munna Singh. He also admitted as correct that Munnna Singh was sleeping on the roof of the building, when accident took place. He also admitted as correct that Om Prakash was not capable of repairing machine/patta or electric installation & the owner had never authorized Om Prakash to repair the machine/patta in case it fails to work. Om Prakash & he used to work on contract basis and used to get the money on the basis of job executed by them. He also admitted as correct that Om Prakash sustained injuries and died subsequently due to his own mistake and the owner/employer was not at fault or negligent in any manner for the accident. He also admitted as correct that he had given his signatures/thumb impressions under the pressure of police. He also admitted as correct that the owner/employer had given compensation of Rs. 40,000/- to the widow of Om Prakash.
15. PW8 is Narender Kumar and he has deposed that accused Pg no. 10 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan Naveen Diwas was the tenant in his house and used to pay Rs. 2,000/- per month as rental charges and the charges of electricity and water were paid by the accused himself. Accused Naveen Diwan was running a factory in Prahlad Pur in the name of Swabhawik Factory. On 6/07.07.99, he came to know that one person had died in the said factory due to electric shock. Police recorded his statement but he did not remember, what was written on the statement recorded by the police officials.
16. He was cross examined & in his cross examination, he deposed that when he let out the premises to accused, it was without electrical fittings. However, he had given one electric meter to the accused for consumption of electricity & no agreement in writing had taken place. The work in the premises was done by the labourers. He volunteered that which were brought by the accused. He could not say whether accused Naveen Diwan personally do any work in the factory or not. Volunteered, he never entered into the factory. He came to know about the incident in the morning. He could not say whether accused was present at the time of incident in the factory or not. He denied the suggestion that he is deposing falsely.
17. PW9 is Sh. Munna Singh and he has deposed that he was Pg no. 11 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan working as a technician at Swastik Wire Factory at Prahlad Pur. He did not remember the exact day or month but in the year 1999, he alongwith Om Prakash and his brother were working in the said factory and after completing his work he had gone at the adjacent room of the factory and at about 2:30 a.m, someone raised alarm upon which I came to the factory and saw one boy, who was in an unconscious condition & came to know that the said boy was doing the work of electricity, which was not his job. Thereafter, I called my owner Naveen Diwan, who came at the factory immediately & took the injured to the Jaipur Golden Hospital in his own car. Ld. APP requested to put a leading question with respect to negligence of the accused, which request was allowed and it was asked from this witness that whether he had stated in his statement given to the IO that the accident had happened due to rash and negligent act of the accused by which the deceased got electrocuted, to which reply comes in negative.
18. He was cross examined by Ld. counsel for accused and in his cross examination he admitted as correct that the work was being done by the labourer on the contract basis. The accused had no supervision over the work, which was being executed by the labourer in the said premises at the relevant Pg no. 12 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan time and since there was electricity problems during day hours, labourers were executing the work in night hours. He admitted as correct that at the time of incident, accused was in his house and the distance between the house of accused and factory is more than 4 kms. The person, who had died due to electrocution didn't have the knowledge of electrical work or qualified to handle electrical equipments and there was no complaint with regard to electrical installation in the factory and even no complaint was made by any worker regarding the defects in the electrical installation prior to the said incident. He did not remember whether the owner have compensated the family of the deceased or not. He admitted as correct that accused was not at fault for the death of the deceased at relevant time. The electric wires alongwith sockets and plugs were in good working condition at the time of installation. The statement of the witness Ex. PW9/DX1 is read over and he had replied that he had not stated these facts to the IO as recorded in his statement. He denied the suggestion that he deposed falsely.
19. PW10 is SI Bansi Lal and he has deposed that on 07.07.99, he was posted at PS Bawana, PP Shahbad Dairy and on receiving DD no. 2 at about 7:15 a.m, he alongwith Ct. Shammi Kapoor reached at Jaipur Golden Hospital, where Pg no. 13 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan he collected the MLC of deceased Om Prakash and met brother of the deceased Sh. Ashok Yadav, who narrated the whole incident. He recorded the statement of Ashok Yadav and prepared rukka Ex. PW6/A and handed over the same to Ct. Shammi Kapoor for registeration of FIR & he himself alongwith complainant Sh. Ashok Yadav came at the spot and called the private photographer, who took the photographs of the machine Ex. P1 to P4 and prepared site plan at the instance of the complainant Ex. PW10/A. Thereafter, he recorded the statement witness Shambhu at the spot. In the meantime, Ct. Shammi Kapoor came at the spot with original rukka and copy of FIR and handed over the same to him. Thereafter, he arrested accused Naveen Diwan vide memo Ex. PW2/B & conducted his personal search vide memo Ex. PW2/C. Accused was released on bail producing surety. Thereafter, he alongwith Ct. Shammi Kapoor and complainant went to Jaipur Golden Hospital, where he met Dr. K.R. Darr, who handed over to him the death certificate, death report and some clothes of the deceased and the said clothes were put into a black polythe and sealed the same with the seal of hospital i.e JGH. Thereafter, he removed the dead body to mortuary, Tis Hazari, Delhi & prepared inquest paper of deceased Ex.
Pg no. 14 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan PW10/C. On 08.07.99, the complainant Ashok and Shambhu identified the dead body of the deceased and after recording statement in this regard is Ex. PW2/D & Ex. PW2/E, the dead body was handed over to his brother Sh. Ashok Yadav. He recorded the statement of witnesses. Thereafter, he obtained the post mortem report of the deceased and after completion of investigation, he prepared the challan and handed over the same to SHO for filing the same in the court for Judical verdict.
20. After the completion of prosecution evidence, statement of accused was recorded U/S 313 Cr.P.C, in which the accused has submitted that he has not committed any crime & no negligence can be attributed to him & he is innocent.
21. I have heard counsel for accused as well as Ld. APP for the State. Record Perused.
22. In the present case, accused has been charged U/S 304 A of IPC. Hence, it would be relevant to go through Section 304 A of IPC. Section 304-A IPC is read as under:
Causing death by negligence-Whoever causes 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.
Pg no. 15 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan
23. A bare perusal of above section shows that if a person causes the death by rash or negligent manner (act not amounting to culpable homicide) then he can be punishable U/S 304 A IPC.
24. The word rash and negligent has not been defined in IPC or Cr.P.C, they have to be gathered from the facts & circumstances of each case & have to be interpreted & appreciated from the evidence, which has come on record as rash and negligent is always a subjective concept & depends upon facts and circumstances of each case.
25. Now, coming to the facts of the present case, it is only the evidence through which it can be appreciated that whether deceased Om Prakash died due to some rash and negligent act of accused or not.
26. It is not in dispute that deceased Om Prakash was working in the factory of accused as admitted by accused in statement recorded U/S 313 Cr.P.C.
27. It is also not in dispute that deceased Om Prakash died due to electric current as stated by PW1 Dr. Rajesh Gupta in his deposition & his post mortem report is Ex. PW1/A & he was not cross examined by the accused.
28. PW6 Sh. Ashok Yadav is very material witness on whose complaint, the present FIR was registered but he has not Pg no. 16 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan supported the case of prosecution. In his deposition, he has nowhere stated that there was some rash and negligent act on part of the accused. He has deposed that his brother died due to electric shock while repairing the 'pataka'. He was also cross examined by Ld. APP but Ld. APP could not get anything from the mouth of PW6 in favour of prosecution.
29. PW6 Sh. Ashok Yadav was also cross examined by Ld. counsel of the accused. In his cross examination, he has categorically deposed that job of his brother Om Prakash was to make 'Jali' & he was not capable of repairing machine/patta & for that purpose competent person named Munna Singh was deployed by the owner. PW6 has further deposed that accused was not present at that time & accused has never asked any kind of the worker to carry out any kind of repair in the machine or electrical installations.
He further deposed that his brother should have called the foreman Munna Singh for the repair of patta, when it was broken.
30. Deposition of PW6 clearly speaks about the fact that accused was not negligent in any manner. Rather he had deployed one person Munna Singh, foreman for the purpose of electric repair & deceased Om Prakash should have called Pg no. 17 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan the foreman but he himself tried to repair the machine/patta & thereafter died due to electric current.
31. PW7 Sh. Shambhu Chaudhary is another witness, who has also not supported the case of prosecution & he has also deposed in the line of PW6 Sh. Ashok Yadav. He has specifically depposed that work of repairing of machine/patta & electrical installation was that of foreman Munna Singh & Munna Singh was sleeping on the roof of the building at the time, when the accident took place. PW7 has specifically deposed that owner/employer was not at fault or negligent in any manner of the accident.
32. PW9 Munna Singh is also important witness, who has also not supported the case of prosecution. A leading question was asked to this witness by the Ld. APP regarding the rash and negligent act of the accused to which this witness answered in negative.
33. In his cross examination, he has specifically deposed that the person who had died due to electrocution was not knowing about the electrical work or qualified to handle electrical equipments. He has categorically deposed that there was not complaint with regard to electrical installation in the factory any time prior to the said incident. PW9 has specifically deposed that electric wires alongwith sockets & Pg no. 18 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan plug were in good working condition at the time of installation.
34. Accused has relied upon the judgment of the Hon'ble High Court of Delhi titled "Bishan Swaroop Sharma Vs. State & anr. 119 (2205) Delhi Law Times 509. It is held by the Hon'ble High Court of Delhi in the aforesaid judgment that for bringing negligence culpable U/S 304 A IPC, the death has to be direct result of the rash and negligent act.
35. The fact in the present case are also of similar nature.
36. Keeping in view the evidence available on record, I thus hold that prosecution has failed to prove the guilt of the accused for which he has charged. Hence, accused Naveen Diwan is acquitted of the said offence U/S 304 A IPC. His bail bond is cancelled and surety is discharged. Documents, if any be returned to him after cancellation of endorsement. File be consigned to Record Room.
(DEEPAK WASON) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e on 02nd January, 2010 Pg no. 19 FIR NO. 184/99 U/S 287/304 A IPC PS: Narela (Bawana) State Vs. Naveen Diwan Pg no. 20