Delhi District Court
3.Title State vs . Prakash Ashwani on 26 April, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 589/1998, PS Bhajanpura
2.Unique Case no. 464193/15
3.Title State Vs. Prakash Ashwani
3(A).Name of complainant SI Praveen Kumar
3(B).Name of accused Prakash Ashwani
S/o Paras Ram Ashwani
R/o H. No. B-33, Pocket F, Phase II
Mayur Vihar, Proprietor of M/s. Pranav
Nirman, Delhi
4.Date of institution of 23.02.2001
chargesheet
5.Date of Reserving judgment 18.04.2023
6.Date of pronouncement 26.04.2023
7.Date of commission of offence 24.09.1998
8.Offence complained of U/s 304 A IPC
9.Offence charged with U/s 304 A IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted U/s 304 A IPC
12. Date of receiving of judicial 23.02.2001
file in this court
Argued by :-1. Ms. Deepika Singh, Ld. APP for the State.
2. Sh. Navdeep Dev Singh, counsel for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, SI Praveen Kumar stating that on 24.09.1998 at about 01.20 p.m., while he was posted at PS Bhajanpura, he received State Vs. Prakash Ashwani Page 1 of 24 FIR No. : 589/1998 intimation through wireless from ASI Jagat Singh (PCR) that wall of Khajuri Electric Power House had fallen down, due to which two people are injured. On reaching the spot, he found that around 03.00 a.m. on 24.09.1998, the boundary wall of the aforesaid KV Sub station had fallen down which subsequently resulted in the death of Mashroor and Tavrej. On the basis of the complaint, FIR bearing no. 589/98 PS Bhajanpura was registered u/s 304 A IPC. During investigation, police collected copies of the contract whereby it was found that contract for boring of pile for Foundation in the said Sub Station was awarded to accused Prakash Ashwani. Further, it was found that as per the clause 19 G of the said agreement, accused was bound to provide residential huts to the labours at the site but the same had not been provided by him due to which they were forced to live in a polythene tent near the wall of the said sub station. Thereby it was alleged by the prosecution that the act of not providing the residential huts/house as per clause 19G of the agreement was criminally negligent on the part of accused which on the collapse of the wall resulted in the death of deceased Mashroor and Tavrej. After completion of investigation, chargesheet was filed u/s 304 A IPC.
2. On 23.02.2001, cognizance was taken and accused was supplied the copy of the chargesheet. On 05.01.2002, charge was framed against the accused for the offences punishable u/s 304 A IPC to which he pleaded not guilty and claimed trial. Accused preferred revision petition against the said order. However, the same was dismissed by Ld. Sessions Judge on 08.05.2002. Hence, the matter was notified for prosecution evidence.
3. Prosecution had named 18 witnesses in the chargesheet. However, PW Khurshid expired during the proceedings and therefore, he was dropped vide order dt. 28.09.2019. Further, ASI Jagat also expired and he was dropped vide order dt. 28.10.2022. Further, PW Mohd. Rehman remained State Vs. Prakash Ashwani Page 2 of 24 FIR No. : 589/1998 untraceable and therefore, he was dropped vide order dt. 28.09.2019. Only 15 witnesses were examined by the prosecution.
4. Ct. Dev Dutt was examined PW 1. He is the witness of arrest of accused Prakash Ashwani and has deposed that on 17.03.2000, accused was arrested by the IO vide arrest memo Ex. PW1/A. He was not cross examined by the accused.
5. Dr. Mukta Rani was examined PW 2. She has deposed that she conducted autopsy of deceased Mashroor Khan and per post mortem report is Ex. PW2/A. Her opinion is at point B on the said report. She was not cross examined by the Ld. Counsel for the accused.
6. ASI Beena was examined as PW3. She is the Duty Officer and she has proved the FIR No. 589/98 which is Ex. PW3/A and deposed that the same was registered on the basis of rukka sent by SI Praveen through Ct. Virender at about 03.15 p.m. on 24.09.1998. She was not cross examined by the other party.
7. HC Virender was examined as PW 4. He deposed that on receipt of DD no. 36 B, he alongwith SI Praveen Kumar went to under construction substation in area of Jamuna Khader Khajoori. There they found a damaged wall with railing and two labours trapped inside the debris. He further stated that IO tried to find out eye witnesses but no eye witness was found there. Thereafter, IO had prepared rukka which he took to PS for registration of the case. After registration of the case, he came at spot and handed over the copy of FIR and original tehrir to IO. In the meantime, photographer was also called by the IO. Thereafter, other injured were examined by the IO. The injured persons came later on when rukka was already dispatched by the IO. Ct. Karan Singh took dead body to mortuary alongwith IO and his statement was recorded to this effect by the IO. He State Vs. Prakash Ashwani Page 3 of 24 FIR No. : 589/1998 further stated that no arrest was made in his presence nor any articles was seized from the spot. He was cross examined by counsel for accused wherein he stated that DD entry was received at about 01.20 p.m. He further stated that he had taken the rukka. He further stated that he did not join the investigation after the said date.
8. Ct. Karan Singh was examined as PW 5. He had deposed that on 24.09.1998, he was posted at PS Bhajanpura. He further stated that after receipt of DD no. 36 B on that day, he alongwith IO SI Praveen Kumar went to the spot i.e. Wazirabad Road, 220 KV Electric Sub Station (under construction). He further stated that on reaching the spot, they found, that the wall of said sub station had fallen and two dead body of labours were lying there. IO called photographer at the spot and photographs mark A to A9 were taken. Dead body was removed to GTB hospital mortuary. IO had also recorded the statement of PWs. He further stated that IO prepared rukka and thereafter case got registered through Ct. Virender. He further stated that on the next day, postmortem of both dead body was conducted and dead body was handed over to their relatives vide handing over memos Ex. PW5/A. He stated that his statement was also recorded by the IO. He was cross examined by the counsel for accused wherein he stated that dead boy were lying about 5 feet away from the collapsed wall. He further stated that the name of deceased persons were disclosed by the labourers living in the tents nearby. He conceded that the wall which had fallen belonged to DVB and it was a government wall.
9. Mohd. Manzoor Alam was examined as PW 6. He had deposed that the incident took place about 12 years back and therefore, he does not remember the date of incident. He is the eye witness of the incident and has stated that on the date of incident, he alongwith deceased Tabrej, Khurshid, Abbas and other labourers were sleeping inside the tent which State Vs. Prakash Ashwani Page 4 of 24 FIR No. : 589/1998 was installed by the side of the wall of the transformer of Power House. He further stated that it was raining heavily and at about 12.00 midnight/01.00 a.m., the wall of the aforesaid transformer fell down and as a result of which the aforesaid Tabrej and other person (whose name he could not recollect) died at the spot. He also stated that he also suffered injuries in the aforesaid incident. Thereafter, Ld. APP for the State sought permission to examine the witness as he was resiling from his previous statement. In his cross examination by the Ld. APP for the State, he stated that he cannot tell if the incident occurred on 23/24.09.1998. He admitted that he was working at the 220 KV Electric Sub Station, South Wazirabad road at the time of incident for a period of two months. He admitted that the name of Thekedar/Contractor was Prakash Ashwani and correctly identified the accused present in the Court. He further admitted that the tents were installed by accused person present in the court. He further admitted that said tents were installed by accused by the side of the wall of DESU. He also further admitted that he and other labourer several times asked the accused to install the aforesaid tents some distance away from the aforesaid wall as they had stated to him that it was rainy season and the aforesaid wall may collapse. He further admitted that on the date of incident, at about 03.00 a.m. heavy rain/storm (Aandhi Toofan) came and as a result of which DESU wall fell down and Masroor and Tabrej died at the spot. He also conceded that if accused had installed the tent away from the aforesaid wall, then the labourers would have been saved. He stated that due to the negligence of accused, the aforesaid labourers died. He denied that suggestion that he had asked the accused to construct packa jhugi for them. ( He was confronted with his previous statement Mark X from point A to A where it is so recorded.) He was thereafter cross examined by the counsel for accused wherein he stated that the aforesaid tent was 1 ½ to 2 meters away from the wall. He further stated that they State Vs. Prakash Ashwani Page 5 of 24 FIR No. : 589/1998 went to sleep at about 10.30 p.m. in the tent and cannot tell the exact time of incident as they woke up when the wall fell down. He further stated that he had not demanded the construction of permanent jhuggis from the accused. He also stated that he cannot comment as to whose negligence, the wall fell down. He admitted that he did not see the accused demolishing the wall.
10. Mohd. Abbas was examined as PW 7. He is also the eye witness of the incident. He had deposed that on the date of the incident, there was heavy rain. The wall collapsed around 2/3.00 a.m. and fell on the Jhuggi/tent due to which, Mashroor and Tavrej died at the spot. He also stated that another labour Khurshid sustained grevious injury and labourers Manzoor, Tasleem, Sakit also sustained injuries. He was also cross examined by the Ld. APP for the State as he was resiling from his previous statement wherein he had admitted that accused Prakash Ashwani was their contractor and he had installed their jhuggi/tents near the wall. He also stated that he alongwith other labourers had several time requested to accused to install their jhugg is away from the wall but the accused did not give heed to their requests. He stated that had the jhuggi been away from the wall, labourers would have been saved. Thereafter, he was cross examined by the counsel for accused. He stated that Jhuggi and tent means the same thing to him. He further stated that jhuggi was installed by the labourers at the directions of the accused. He also stated that he did not anticipate that the wall would collapse but thereafter stated that he had apprehension that the wall would collapse as heavy grill and 200 to 250 drums were kept on one side of wall due to which, it was heavily loaded. He stated that the jhuggi tent was 50 cms away from the wall.
11. Inspector Parveen Kumar was examined as PW 8. He has deposed that on 24.09.1998, he was posted at PS Bhajanpura. On that day, on receipt of State Vs. Prakash Ashwani Page 6 of 24 FIR No. : 589/1998 DD no. 36 B, he alongwith Ct. Virender went to 220 KB Electric Sub Station, South Wajirabad, Road. There he saw the building was under
construction and there was tent under the railing of a wall. He further stated that he saw that the wall and the iron grill had fell down on the tent and two persons i.e. Mashroor and Tavrej had expired on the spot. He searched the eye witness but could not found any on the spot. Thereafter, he called the private photographer Vijay and got the photographs of the spot. He had correctly identified the said photographs in court which were already marked as Mark A to A9. Thereafter, Ct. Karan Singh, SHO and ACP concerned came at the spot. He then prepared the rukka Ex. PW8/A and got the present case registered through Ct. Virender. Thereafter, one eye witness Mohd. Abbas came on the spot and he prepared site plan Ex. PW8/B at the instance of Mohd. Abbas. He also recorded statement of Mohd. Abbas. He then left the Ct. Virender on the spot and gave directions to him to guard the spot. He alongwith Ct. Karan Singh took the dead body of both deceased to GTB Hospital. Thereafter, he came back on the spot. Then, he stated that two eye witnesses Mohd. Manzoor Alam and Mohd. Khursheed met him and thereafter he recorded their statements as well as statement of Ct. Virender. He then came back to the PS. Thereafter, on the next day i.e. 25.09.1998, he got conducted the post mortem of both deceased and completed necessary formalities for the same. He also handed over the dead bodes after the post mortem to their relatives and recorded the statement of witnesses under Section 161 of Cr. PC. Thereafter the investigation of case was transferred to SI Tejram. In his cross examination, he stated that he did not find any witness at the spot prior to sending of the rukka. He stated that as per his investigation, he came to the conclusion that accused was responsible for the incident. He stated that the tent was situated at a distance of 1 to 2 feet from the wall. He conceded that he had not obtained any document regarding the State Vs. Prakash Ashwani Page 7 of 24 FIR No. : 589/1998 ownership of the collapsed wall. But he stated that as per the investigation, the wall belongs to DESU.
12. Sh. Naresh Kumar, Lab Assistant/Record Incharge, UCMS and GTB Hospital, Delhi was examined as PW 9. He has proved the PM of deceased Tavrej and stated that the concerned doctor opined that the cause of death of Tavrej was shock because of head injury produced by blunt force impact. He has identified the signature of Dr. S. Ghorai on the basis of record of his signature and post mortem report of deceased Ex. PW9/A. He was not cross examined by the Ld. Counsel for the accused.
13. SI Tej Ram Meena was examined as PW 10. He has deposed that on 03.03.2000, investigation of the present case was marked to him. During investigation, he had received copy of tender and contract papers from S. K. Verma, executive engineer, Delhi Vidyut Board and he recorded his statement. He had also arrested the accused in the present case vide memo already Ex. PW1/A. After completion of investigation, he prepared charge sheet and filed the same before the Court. He was cross examined by the counsel for accused wherein he stated that FIR was lodged on 24.09.1998 and he had arrested the accused on 17.03.2000 from his house.
14. Vijay Kumar was examined as PW 11. He is the photographer and has deposed that on the date of incident, he had taken 10 photographs which are already marked as Mark A to A9 and the same were then Ex. PW11/A (colly.). He also stated that he handed over the negatives of the same to the police. He was cross examined by the Ld. Counsel for the accused wherein he stated that he was called by the police officials though he does not remember the name of the police official.
15. Sh. S. K. Verma was examined as PW 12. He has deposed that in the year 2000, he was posted as Executive Engineer (Civil) VI with DVB. He State Vs. Prakash Ashwani Page 8 of 24 FIR No. : 589/1998 stated that contract regarding boring of pile for the foundation for installation of various equipments at 220 KV Sub station, South of Wazirabad was awarded to M/s. Ashwani Construction Company which is owned by accused Prakash Ashwani. He stated that due to long time, he is not able to recall the exact name of the company. He further stated that the site under construction was under the control of Assistant Engineer and Junior Engineer though he too visited the site on periodical basis. He further stated that as per clause 19 G of the contract which is Ex. P1 (colly.
43) (OSR), contractor company was bound to construct proper huts for the residents of the labourers at the site. (vide order dt. 25.01.2017, the State was permitted to bring the original agreement on record though the same was not filed at the time of chargesheet). On periodical inspection of the site, violation of clause 19 G of the aforesaid contract was found and verbal instructions were given to the site Engineer as well as contractor Prakash Ashwani for compliance of clause 19 G. Accused however did not comply with the same. Temporary tents/tamboos were installed adjacent to the wall of the said site. He further stated that the wall was constructed long back by one M/s. Sharma Construction. He deposed that the adjoining wall collapsed due to which two labourers died though he could not recall the date and month of the incident. He stated that he had handed over the detailed agreement to the police vide handing over memo Ex. PW12/A. He stated that the name of the company of accused was M/s. Pranav Nirman of accused Prakash Ashwani. In his cross examination, he stated that incident occurred on 23/24.09.1998 and he got the information from the JE. He stated that he does not remember if he had made any complaint regarding the violation of 19 G. He further conceded that he does not have any personal knowledge regarding the person who had constructed the wall. He admitted that the construction of wall was quite old. He denied the suggestion that there is no violation of clause 19 G of the agreement.
State Vs. Prakash Ashwani Page 9 of 24 FIR No. : 589/1998
16. Masood Alam was examined as PW 13. He is the brother of deceased Mashroor Alam and stated that he had identified the dead body of his brother Mashroor Alam vide statement already Ex. PW8/J. He was not cross examined by the Ld. Counsel for the accused.
17. HC Indu was examined as PW 13 (Inadvertently two witnesses have been examined as PW13). She is the DD writer and has deposed that on 24.09.1998, at about 01.20 p.m., she received information from PCR through ASI Jagat Singh regarding death of two persons at Rajori Electric Power House due to fall of wall and she made the DD entry no. 36 B in DD register. The duplicate DD entry was Ex. PW13/A. She was not cross examined by the Ld. Counsel for the accused.
18. Imtiyaz Alam was examined as PW 14. He is the brother deceased Tavrej and stated that he had identified the dead body of his brother Tavrej vide statement already Ex. PW8/G. He was not cross examined by the Ld. Counsel for the accused.
19. Thereafter statement of accused was recorded under Section 313 Cr. PC r/w Section 281 Cr. PC on 09.12.2022 as all the prosecution witnesses had been examined. Accused stated that he has been falsely implicated in the present matter and that the wall was constructed by some other contractor due to which death of two labourers was caused.
20. Vide order dt. 08.02.2023, accused was permitted to lead defence evidence. Accused sought to summon record from Delhi Transco Limited and Labour Department regarding the incident but the concerned Record Clerk stated that the record was no longer available with them and filed their reports i.e. Ex. DW1/1 and Ex. DW2/1 (OSR) in this regard. They were not cross examined by the State. Thereafter, accused chose to State Vs. Prakash Ashwani Page 10 of 24 FIR No. : 589/1998 examine himself as a defence witness by moving application under Section 315 Cr. PC. He examined himself as DW 3 and stated that the wall which fell down was the responsibility of Delhi Vidyut Board. He further stated that as per the contract, obstruction free land was to be provided by him for carrying out the necessary construction. However, the same was not provided and therefore, huts could not be constructed as per the agreement.He further stated that cable Drum, transformer oil in barrels, JCB machine, fork lifter machine, trucks and other heavy machinery was used at the spot and therefore, there was not space for the allotment of huts. In his cross examination by the State, he stated that the tents were 20 feet away from the wall. Further the tents were movable so that they could be shifted whenever there was passage of trucks and other heavy machinery. He denied the suggestion that he was responsible for the construction of the wall.
21. Thereafter, matter was fixed for final arguments. I have heard submissions of both the parties and perused the material on record. While Ld. APP for the State has argued that the State has discharged its burden and proved that accused is responsible for the death of victim Mashroor and Tavrej by rash and negligent act, counsel for accused has submitted that there are various discrepancies in the case of the prosecution and State has failed to show that accused is the direct cause of the death of the victims.
22. Before proceedings further and considering the contentions of both the parties, I wish to refer to the relevant provisions of law:
Section 304A: 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.
State Vs. Prakash Ashwani Page 11 of 24 FIR No. : 589/1998
23. From the abovesaid provisions, it is clear that one must first understand meaning of the rashness and negligence. Distinction between Rashness and negligence was explained by a three-judge bench in the celebrated case of Bhalachandra Waman Pathe v. State of Maharashtra, 1968 Mah LJ 423 wherein it was observed:
"There is a distinction between a rash act and a negligent act}A 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 precautions 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 if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. In the instant case the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. But he was undoubtedly guilty of negligence. He had a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car he was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore guilty of offence under S. 304A."
24. Kuldeep Singh v. State of Himachal Pradesh 2008 Cri.L.J. 3932 is another important case, where the Hon'ble Apex Court dealt with Section 304A IPC. It was observed by the Supreme Court:
"...7. Section 304-A IPC applies to cases where there is no intention State Vs. Prakash Ashwani Page 12 of 24 FIR No. : 589/1998 to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows :
State Vs. Prakash Ashwani Page 13 of 24 FIR No. : 589/1998 "Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted :
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where State Vs. Prakash Ashwani Page 14 of 24 FIR No. : 589/1998 it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word `negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' `gross' or `culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself."
11. "Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin, (1978)2 All ER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care"
"reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
State Vs. Prakash Ashwani Page 15 of 24 FIR No. : 589/1998
12. In Syed Akbar v. State of Karnataka, (1980)1 SCC 30, it was held that "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. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions, (1937)(2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved.
Probably, of all the epithets that can be applied 'reckless' most nearly covers the case. "
13. According to the dictionary meaning `reckless' means `careless', `regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs, (1977)1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
14. In R. v. Caldwell, (1981)1 All ER 961, it was observed that :-
"Nevertheless, to decide whether someone has been `reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused State Vs. Prakash Ashwani Page 16 of 24 FIR No. : 589/1998 would not be described as `reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not he deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to `reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as `objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
15. The decision of R. v. Caldwell (Supra) has been cited with approval in R v. Lawrence, (1981)1 All ER 974 and it was observed that :
"--- Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting `recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it".
16. The above position was highlighted in Naresh Giri v. State of M.P., 2007(4) RCR(Criminal) 1038 : 2007(6) RAJ 237 : [2008(1) SCC 791].
State Vs. Prakash Ashwani Page 17 of 24 FIR No. : 589/1998
17. The evidence of PWs 1, 3 & 4 clearly show that the vehicle was being driven at a very high speed. Evidence on record show that more than 50 persons were there in the truck and the appellant was driving the same at a very high speed. One of the witnesses has stated that the truck was being driven as if it was an aeroplane. Therefore, the conviction as recorded cannot be faulted ...."
25. Similarly, in Prabhakaran v. State of Kerala 2007(3) R.C.R.(Criminal) 605 it was observed by the Hon'ble Supreme Court:
5. Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately.
Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 AC 576 observed as under:
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be State Vs. Prakash Ashwani Page 18 of 24 FIR No. : 589/1998 proved before the felony is established. Probably of all the epithets that can be applied `recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for `recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
6. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
7. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross State Vs. Prakash Ashwani Page 19 of 24 FIR No. : 589/1998 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.
8. The distinction has been very aptly pointed out by Holloway, J. in these words:
"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 precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mschievous 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 immutability arises from the negligence of the civic duty of circumspection." (See in re:
Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)
26. Hence, prosecution must prove the following facts:
a) Accused was under duty or obligation to construct residential huts for the labourers
b) Omission to do so was due to indifference towards the conse-
quences or reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would have not omitted to do so.
c) The said omission was direct cause of death of Masroor and Tavrej.
27. The prosecution has relied on clause 19 G of agreement Ex. P1 (colly.
43) (OSR) to prove that accused owed a duty of care towards the labourers for constructing the residential huts. The accused has not denied the clause State Vs. Prakash Ashwani Page 20 of 24 FIR No. : 589/1998 and therefore it is not in dispute that he owed a duty of care towards the deceased but argued that the permanent structures could not be constructed as obstruction free land was not provided by the DVB. Accused has also deposed that heavy machinery was used for construction and therefore for the passage of machinery, only temporary tents could be constructed so that they could be shifted as per need so that the machinery could move through the space. Hence, there was no violation of the agreement and contract was completed by him only. Here it is pertinent to note the testi- mony of PW12, the executive engineer incharge of the construction has deposed that only verbal instructions were issued to the site engineer and contractor/accused for compliance of clause 19 G of the agreement. It is not in dispute that the contract was completed by the accused only and not terminated for any violation. No explanation has been put forth by the prosecution in this regard and whether the construction of the permanent huts was feasible or not. Hence, it cannot be held that non construction of huts was such an omission that with done recklessness or indiffer- ence as to the consequences by the accused.
28. Next we need to see if the failure to construct huts is failure to exercise that degree reasonable and proper care to guard against injury towards tavrej and masroor, which having regard to all the circumstances, it was the imperative duty of the accused person to have adopted. However there is no consistency in the prosecution version to determine if the fall of the wall could have been anticipated by a reasonable person. PW6 Mohd Man- zoor Alam has deposed that the wall fell down due to heavy rain, and the labourers had requested the accused to shift the tent away from the wall as it was rainy season since they had apprehended the felling of the wall. Per contra the other witness PW7 Mohd Abbas has deposed that that he along- with other labourers had several time requested to accused to install their jhuggis away from the wall as they had apprehension that the wall would State Vs. Prakash Ashwani Page 21 of 24 FIR No. : 589/1998 collapse as heavy grill and 200 to 250 drums were kept on one side of wall due to which, it was heavily loaded. Thus, there is no consistency in the version of the prosecution regarding the reason of fall of wall. Further, PW7 has stated that the jhuggi tent was 50 cms away from the wall and PW6 has stated that aforesaid tent was 1 ½ to 2 meters away from the wall. The benefit of said contradictions must go in favour of accused espe- cially since the prosecution has not filed any material on record for es- tablishing the cause of fall of wall. In fact no material has been brought on record regarding the the period when the said wall was constructed. Even the basic details of the material of which the said wall was con- structed or what was its height or breadth have been brought by the prose- cution in evidence. There is no specific evidence regarding the reasons for its fall and the prosecution witnesses have made different conjectures with- out giving any basis for their opinion. PW 12 Sh. S. K. Verma who is the only prosecution witness with technical qualifications as he was posted as Executive Engineer (Civil) VI with DVB in the year 2000, and could have elaborated the reasons for fall of wall, has also remained silent on this ma- terial aspect. He has simply stated that the construction of the wall was quite old. Here it is pertinent to note that he has conceded that the wall was not constructed by the accused and that the accused was not re- sponsible for the maintenance of the wall. In Bodh Raj V. State of Jammu & Kashmir AIR 2002 SC 3164, Apex Court held that circumstan- tial evidence can be a sole basis for conviction provided the conditions as stated below are fully satisfied:
a) The circumstances from which guilt is established must be fully proved;
b) That all the facts must be consistent with the hypothesis of the guilt of the accussed;
c) That the circumstances must be of a conclusive nature and tendency State Vs. Prakash Ashwani Page 22 of 24 FIR No. : 589/1998
d) That the circumstances should, to a moral certanity , actually ex-
clude every hypotheis expect the one proposed to be proved
29. But in the present case, there are material holes in the prosecution story and therefore, the benefit of doubt must go in favour of accused. It is a set- tled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prose- cution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the ac- cused. It is for the prosecution to travel the entire distance from the ac- cused "may have" to accused "must have" committed the offence. But in the present case prosecution has failed to prove that the aforesaid omission on the part of the accused in providing permanent huts was cause causans of the death of victims Tavrej and Masroor. In "Kishan Chand v. State of Haryana", 1971 P.L.R. 191 it was held by the Supreme Court that act must be the proximate and efficient cause without the intervention of another's negligence i.e. it must be the cause causans. But in the present matter proximate and efficient cause of death deceased Tavrej and Masroor is the felling of the wall. It is not in dispute that the wall was not constructed by the accused. Perusal of testimony of PW 8 Inspector Praveen shows that the wall not constructed by the accused. Even PW 5 has deposed that wall belonged to Delhi Vidyut Board. The said fact has also been admitted by PW 12 Sushil Kumar Verma who stated that the wall was constructed by one M/s. Sharma Construction. Further, he stated that the wall fell down due to heavy rain. The argument that there was heavy load against the wall which caused it fall has remained unproved as no evidence has been led by the prosecution to show the reasons of fall of the State Vs. Prakash Ashwani Page 23 of 24 FIR No. : 589/1998 impugned wall. Though PW 7 has stated that he had apprehension regarding falling of the wall as heavy grill and about 200-250 drums had been kept on one side of the wall, but no investigation have been conducted on the aforesaid aspect. Per contra PW6 and PW12 has stated that the wall fell due to heavy rain. The concomitant of the aforesaid discussion is that the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt as prosecution fails to prove that negligence of accused was the direct cause of fall of wall. As a cumulative effect of the above said discussion, I hold that the prosecution has failed to prove the ingredients of either criminal negligence or criminal rashness on the part of the accused or that he was cause causans of the death victims Tavrej and Masroor.
30. In view of the aforesaid discussion and findings, accused is acquitted for the offence punishable under section 304A IPC. His bail bond stands cancelled and surety stands discharged. File be consigned to the Record Room as per rules. Copy of judgment be provided to the accused Digitally signed by RUPINDER RUPINDER SINGH DHIMAN SINGH DHIMAN Date: 2023.04.26 17:04:31 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 26.04.2023 Metropolitan Magistrate-01 KKD Courts, Delhi It is certified that this judgment contains twenty four (24) pages and each page bears my signature. RUPINDER Digitally signed by RUPINDER SINGH SINGH DHIMAN Date: 2023.04.26 DHIMAN 17:04:38 +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi State Vs. Prakash Ashwani Page 24 of 24 FIR No. : 589/1998