Delhi District Court
State vs Kapil Kadiyan on 20 April, 2024
IN THE COURT OF Ms. VIJAYSHREE RATHORE, METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET COURTS, DELHI
STATE VS. Kapil Kadiyan
FIR No. : 538/2016
PS : Hauz Khas
U/s : 338 IPC
JUDGMENT
A. Sl. No. of the Case 2039214/2016 B. Date of Commission of offence 07.06.2016 C. Date of FIR 15.06.2016 D. Date of charge-sheet 14.10.2016 E. Name of the complainant Ali S/o Babu
F. Name of the accused persons, their Kapil Kadiyan S/o Ranvir Singh Kadiyan R/o parentage and residence Bajan Kalan, Purkahs, PS Gannor, Sonipat, Haryana.
G. Offence complained of or proved 338 IPC
H. Date of framing of charges 03.07.2018
I. Date of commencement of evidence 10.01.2019
J. Plea of the accused Not guilty
K. Date on which judgment is reserved 18.03.2024
L. Final Order Acquitted
M. Date of Judgment 20.04.2024
State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas
U/s 338 IPC Page no.1 of 13
Brief facts of the present case
1. The case of the prosecution is that on 07.06.2016 at about 02.30 pm, the complainant was doing some repairing work for RDB company alongwith his wife at AIIMS hospital, hostel no. 2 on 2nd floor. At that time another company namely Globe company was also engaged in some work on floor above the 6th floor and 10th floor. On that day he had gone at 3rd floor to bring water for melting sand and when he came down from stairs, two/three iron pipes fell on his head from 6th and 7th storey due to which he fell down, his safety helmet was cracked and he sustained injury on his head and forehead due to hitting the stairs. Thereafter, his wife and brother took him to AIIMS hospital for treatment and he was discharged on same day. Then RDB company admitted him to Holy Family hospital where he remained for 12-13 days. Thereafter, complaint was filed against accused Kapil Kadiyan who was safety officer of Globe Company. On the basis of complaint FIR was registered. Statement u/s 161 Cr.P.C were recorded. MLC of victim was collected wherein he was found to have suffered grievous. After completing the investigation, charge-sheet was filed against accused. Cognizance of the same was taken.
Framing of Notice
2. After compliance of Section 207 Cr.P.C., vide order dated State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.2 of 13 03.07.2018 notice was framed against accused for the offence u/s 338 IPC to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
3. In support of its case, the prosecution had examined seven witnesses. PW1 is Ali, PW2 is Savina, PW3 is Ct. Narayan Singh, PW4 is SI Chhagan Lal, PW5 is ASI Devender Nath, PW6 is Dr. Nikhil and PW7 is Rajesh
4. PW1 Ali had deposed in his testimony that on 07.06.2016 at about 2.30 pm he was doing repairing work alongwith his wife Shabina at AIIMS hospital on 2nd floor at hostel no. 2. He had further deposed that he had gone at 3rd floor to bring the water for melting the sand. He had further deposed that when he came down from the stairs with water there were 2-3 iron pipes fell on his head from 6th and 7th storey of the hostel no. 2 due to which he fell down and his safety helmet was cracked down and he sustained injury on his head and forehead through hitting the stairs. He had further deposed that his wife called his brother Chulbaaz and took him to AIIMS hospital for his medical treatment. He had further deposed that he was discharged in the evening time. He had further deposed that thereafter RDB constructions company under whom he was working at the abovesaid site had admitted him in Holy Family hospital where he was medically examined by his employer company. He was State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.3 of 13 remained in the holy family hospital for about 12-13 days. He had further deposed that after discharge from the said hospital, he had come to hostel no. 2 where he used to reside and his statement is Ex.PW1/A. Witness had correctly identified the accused and the case property is Ex.P1. He had further deposed that IO prepared the seizure memo vide Ex.PW1/B.
5. PW2 Savina who is wife of victim Ali had also deposed the same in line of PW1 Ali.
6. PW4 SI Chhagan Lal deposed in his testimony that on 15.06.2016 at about 7.45 pm Ct. Naryan Singh came to him and produced the rukka which was sent by the SI Devender Nath. He had further deposed that thereafter he endorsed the rukka which is Ex.PW1/A and lodged the FIR Ex.PW4/A and original rukka were handed over to Ct. Naryan Singh.
7. PW6 Dr. Nikhil Chandran had deposed in his testimony that on he was working as a Junior Resident at Jai Prakash Naryan Apex Centre, New Delhi since May 2016 to July 2016. He had further deposed that MLC no. 564485 Ex.PW5/1 was prepared by him. He had further deposed that the injuries as per the MLC are laceration 4x1 cm on the scalp, multiple abrasion over the face.
8. PW7 Rajesh Trehan had deposed in his testimony that he was State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.4 of 13 working as a Manager at Globe Civil Projects Pvt Ltd from 2011 to 2020. He had further deposed that the incident of the present FIR took place in the year 2016. He had further deposed that the IO served notice u/s 91 Cr.P.C. dt. 21.06.2016 and 30.06.2016 to produce relevant documents of Globe Civil Projects Pvt Ltd. In the reply of the abovesaid notices he on behalf of Globe Civil Projects Pvt ltd. replied to IO concerned and the reply dt. 06.07.2016 Ex.PW7/A. He had further deposed that the IO recorded his statement u/s 161 Cr.P.C.
9. PW5 retired ASI Devender Nang had deposed in his testimony that on 07.06.2016 he was present at PP AIIMS at about 4.50 pm he received a DD NO. 45A which Ex.PW5/A regarding assaulting by the iron rod. He had further deposed that thereafter he along with HC Narayan Singh went to the spot i.e. Hostel no. 2 AIIMS where he did not find injured as well as victim/complainant. He had further deposed that thereafter they went to the AIIMS Trauma centre where he came to know that injured had already left the hospital after treatment. He had further deposed that thereafter he kept the aforesaid DD no. pending. He had further deposed that during the investigation, he came to know that injured was admitted in the Holy Family hospital. He had further deposed that thereafter he along with HC Narayan Singh went to the Holy Family hospital at Jamiamilia where the injured Ali was admitted in the hospital. He had further deposed that he recorded the statement of Ali and prepared the rukka Ex.PW1/A on the basis of the same and handed over to HC State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.5 of 13 Naryana for registration of FIR. He had further deposed that thereafter they went to the PS and he went to the spot. He had further deposed that after registration of FIR HC Narayan Singh came at the spot and handed over the copy of FIR and original rukka to him. He had further deposed that at the time they met the one eye witness/caller namely Sonu at the spot. He had further deposed that he recorded his statement and he also recorded the statement of one lady Sabina wife of Ali at the spot. He had further deposed that he prepared the site plan at their instance Ex.PW5/B. He had further deposed that he recovered the two iron rods, one tin dabba and one broken yellow color helmet and seized the same vide seizure memo Ex.PW1/B. He had further deposed that he gave the notice u/s 91 Cr.P.C. to Globe Company and BRD Company regarding the employment document of the victim Ali. He had further deposed that the concerned persons of the Globe company replied on his notice u/s 91 Cr.P.C. that the construction work was going on in the supervision of the accused. He had further deposed that he called to the accused and he came at PP AIIMS on 15.07.2016 and he arrested the accused vide arrest memo Ex.PW3/A. Witness had correctly identified the accused as well as the case property i.e. 2 iron folding pipes and the bottoms of pipes affixed with the iron blades, one broken yellow color helmet and one tin dabba Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively. He had further deposed that he obtained the MLC report from victim and he also obtained the medical documents of Holy Family Hospital and placed the same on record. PW3 HC Narayan Singh had deposed the same in his testimony.
State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas
U/s 338 IPC Page no.6 of 13
Statement of accused
10. The examination of accused u/s 313 r/w section 281 Cr.P.C. was recorded in which accused had stated that there was work of two companies i.e. RDB and Globe Civil Project going on where the incident took place. Where from ground floor to fifth floor RDB was working and from fifth floor to tenth floor Globe Civil Project was working. He work as a painter in Globe Civil Project. No working from their side was going on at the outer side at the spot. The incident took place at the ground floor at the work site and he was on the 7th floor at that time. They also put a net on the 5th floor. He came to know about the incident when the police came and took the victim to the hospital. (after lunch). The injury which victim had suffered from their own mistake and the work was done by their company. He has nothing to do with the present incident. He is innocent. He has been falsely implicated in the present case.
11. Accused led defence evidence in his favour and examined himself as DW1 in the case. In his defence he had retierated his plea made in his statement u/s 313 Cr.P.C.
12. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
13. Section 338 IPC prescribes "Whoever causes grievous hurt to any State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.7 of 13 person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both".
14. Rashness or negligence are two different terms. In the case of 1953 All LJ 689 : (AIR 1954 All 186) it was held:
"Rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness, and, In order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking hazard knowingly that the hazard was of such a degree that Injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences, criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances. It was the imperative duty of the individual to take. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such consequences may not follow. The criminality lies in not taking the precautions to prevent the happening of the consequences in the hope that they may not happen. The law does not permit a man to be State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.8 of 13 uncautious on a hope however earnest or honest that hope may be."
15. Main issue to be dealt in the present case is whether the iron rod fell from 6th or 7th floor of the site where Globe Company was undertaking the construction work? And also whether accused being the safety officer of Globe company at that time had been rash or negligent in maintaining the safety due to which grievous hurt was caused to the victim?
16. As per the case of prosecution accused was incharge of construction work and he kept folding pipes rashly and negligently and thereby caused injury to complainant/victim Ali. In his testimony PW1 Ali had deposed that on 07.06.2016 at about 02.30 pm he was doing repairing work alongwith his wife Shabina at AIIMS hospital on 2 nd floor at hostel no. 2 and his wife was working as separating the concrete from the sand. He had gone to 3 rd floor for bringing the water for melting the sand. When he came down from the stairs with water, 2-3 iron pipes fell on his head from 6 th and 7th storey at hostel no. 2 due to which he fell down and his safety helmet was cracked down and he sustained injuries on his head through hitting the stairs. Admittedly, victim Ali was working under RDB construction company. He had admitted in his cross- examination that when he was working in hostel no. 2, the same was at 6 th storey and during the incident RDB construction company was carrying finishing work at 6th floor. He had further admitted that upto 6 th floor, RDB company was doing the finishing work and above the 6 th floor to 10th floor State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.9 of 13 Globe Company was constructing the building. The version of the complainant shows that he was on stairs at 3rd floor while the incident had taken place. His wife was also on the 2nd floor at the time of incident. Thus, this shows that he had not actually seen from which floor the iron pipe fell and due to which he met with the accident. His version also shows that the construction work was going below the 6th floor and also above the 6th floor by the two companies RDB and Globe Company. Neither the complainant Ali, nor his wife Savina had seen from which floor the rod fell. It maybe possible that the pipe must have been kept at any other floor rather than 6th or 7th floor. None of the witness has been examined to show from which floor the iron pipes had actually fell. No investigation has been conducted by the IO in this case as to from which floor the iron rod fell. Thus, it is not clear from the record whether the iron rods fell from 6th or 7th floor where Globe Company was undertaking the construction work.
17. It is also pertinent to mention that complainant PW1 Ali himself admitted in his cross-examination that he filed case against his company RDB in the Labour Court and where from he was awarded compensation. If the case was filed against RDB company in the Labour Court, it also creates doubt as to involvement of Globe Company.
18. IO PW5 ASI Devender had deposed that he received DD no., 45A Ex.PW5/A regarding assaulting by iron rod. Thereafter he alongwith HC State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.10 of 13 Narayan Singh went to the spot. He had also deposed that he recovered two iron rod, one tin dabba and one broken yellow color helmet and seized the same vide seizure memo Ex.PW1/B. He also deposed that he gave notice us/ 91 Cr.P.C. to Globe company and BRD company regarding the employment, document of victim namely Ali. The concerned persons of Globe company replied on the notice that construction work was going under the supervision of the accused. In his cross-examination IO ASI Devender has stated that he showed the case property to the engineer Rajesh of M/S Grover Company who told him that the said case property belongs to the employer of the accused. He admitted in his cross-examination that he did not verify any document in respect of the ownership of the case property to come to the conclusion that the same pertained to the employer of the accused. The version of IO ASI Devender in cross-examination shows that he did not verify the documents of ownership of case property whether it actually belonged to Globe company or not. IO had merely verified the same from M/S Grover company. Whether M/S Grover company was working at the site at the time of incident is not evident from the record as the version of victim is that only two companies i.e. RDB Constructions and Globe Company was working on the site. Why IO verified the ownership of iron rods from M/S Grover Company when the same was not present on site cannot be understood. The very fact that IO had not verified the ownership of the case property i.e. iron rods due to which injuries was caused to the victim, it cannot be said that the rod belonged to Globe company. It cannot be also said that injuries were sustained to victim Ali due to the State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.11 of 13 negligent act of employee of Globe Company. As per the defence of the accused, he had placed the net on stairs of 5th floor. IO had also not done any investigation regarding whether there was any net placed on the stairs of 5 th floor as to maintain the safety of workers working beneath the 5 th floor. If the accused had taken safety measures as per his defence plea, he could not be responsible. Though PW Rajesh Trehan had stated in his testimony that in reply to notice u/s 91 Cr.p.C. 21.06.2016, on behalf of Globe Civil Projects Pvt Ltd, he replied to IO vide Ex.PW7/A that accused was incharge of construction work at the site, however, as the ownership of the iron rods/case property is not verified, it cannot be said that accused was negligent in supervising the construction work at the site due to which injuries were sustained to the victim Ali.
19. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are no cogent material available on record to suggest that accused being incharge of construction work, kept folding pipes rashly or negligently and due to the same they fell on the victim Ali as a result of which he sustained grievous injuries. The allegations against the accused are not proved in the present case.
State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas
U/s 338 IPC Page no.12 of 13
Conclusion & Decision
20. In these circumstances and in view of the aforementioned discussion, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubts. Accused Kapil Kadiyan is accordingly acquitted for offence u/s 338 IPC.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 20.04.2024 MM-06, SOUTH/SAKET DELHI State Vs. Kapil Kadiyan FIR No. : 538/2016 PS Hauz Khas U/s 338 IPC Page no.13 of 13