Delhi District Court
State vs Tuntun on 10 October, 2023
IN THE COURT OF SH. DEVANSHU SAJLAN, METROPOLITAN
MAGISTRATE-07, WEST DISTRICT, TIS HAZARI COURTS,
NEW DELHI
Cr. Case No. -: 63550/2016
Unique Case ID No. -: DLWT020001252009
FIR No. -: 327/2008
Police Station -: Tilak Nagar
Section(s) -: 304A IPC
In the matter of
STATE
VS.
TUNTUN & ANR.
.... Accused
1.Tuntun
1. Name of Accused :
2. Dharmender Pal Offence complained of or
2. : 304A IPC proved
3. Plea of Accused : Not guilty
4. Date of registration of FIR : 29.08.2008 Date of filing of
5. : 24.02.2009 chargesheet
6. Date of Reserving Order : 20.09.2023
7. Date of Pronouncement : 10.10.2023
8. Final Order : Acquitted Argued by -: Sh. Dhirendra Kumar Yadav, Ld. APP for the State.
Sh. A.K. Bharti, Ld. Counsel for both accused.
Digitally signed by DEVANSHUDEVANSHU SAJLAN SAJLAN Date:
2023.10.10 16:34:11 +0530 Cr. Case No.63550/2016 State v. Tuntun & Anr. Page 1 of 10 BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. The case of the prosecution is that on 29.08.2008 at about 10:30 AM, at Pole No.811, near H.No.11/1A, Guru Nanak Nagar, Tilak Nagar, Delhi within the jurisdiction of PS Tilak Nagar, both accused persons, being the contractor and in-charge of the work of changing the electricity wire at the said pole, did not take proper care at the time of changing electricity wire and due to their negligent act to the extent of not shutting down electric current before asking the labourer (deceased Satish Gupta) to climb up the electricity pole, the labourer Satish got electrocuted and fell down on the ground and died. Accordingly, both accused persons are alleged to have committed offence punishable u/s 304A IPC.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against both accused, notice under sections 304A IPC was served upon accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and Digitally signed by DEVANSHU DEVANSHU SAJLAN Cr. Case No.63550/2016 State v. Tuntun & Anr.SAJLAN Date: 2023.10.10 16:34:24 +0530 Page 2 of 10 documentary evidence against the accused persons to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Sh. Sachin Gupta PW-2 : SI Nand Kishore PW-3 : ASI Krishan Kumar PW-4 : HC Manoj PW-5 : SI Ramesh Chand PW-6 : ASI Gurmukh Singh DOCUMENTARY EVIDENCE Ex. PW-1/A : Statement of complainant Ex. PW-1/B : Site plan Ex. PW-1/C : Statement identifying the body of victim Ex. PW- 1/D : Handing over memo of the dead body Ex. PW-2/A : FIR (OSR) Ex. PW-2/B : Endorsement on Tehrir Ex. PW-3/A : Handing over memo Ex. PW-4/A-D : Personal search memos and arrest memos Ex. PW-4/E : Seizure memo of the contract Ex. P1-P2 (colly) : Photographs of place of occurrence STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
5. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. Both accused stated that they have been falsely implicated in the present case and they were just another labourer like the deceased Satish. They further stated that they were not the contractor/thekedar and they were working on salary given by the contractor S.K. Das. Thereafter, the accused persons submitted that they do not wish to lead DE Digitally signed by DEVANSHU SAJLAN DEVANSHU Date: Cr. Case No.63550/2016 State v. Tuntun & Anr. SAJLAN 2023.10.10 16:34:33 Page 3 of 10 +0530 and accordingly, matter was listed for final arguments.
ARGUMENTS -
6. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
7. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the statement of eye-witness Sachin Gupta has established the offence beyond reasonable doubt. It has been further argued that the testimony of PW Sachin Gupta also establishes that the accused persons were the contractor and foreman and hence, they had a duty to ensure that the electricity power is shut down before asking the deceased to climb the electricity pole.
8. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel for the accused has argued that both accused have been falsely implicated in the present case. The specific arguments taken by the accused are mentioned below:
(i) It has been submitted that the complainant Sachin Gupta was himself the supervisor and the accused persons were merely labourers.
(ii) It has been further submitted that the contract was executed between BSES and contractor S.K. Das and both accused persons were earning a salary while working as labourers under the contractor S.K. Das. In this regard, reliance has been placed upon Ex. PW-4/E, which is the contract in favour of the contractor namely S.K. Das (on behalf of M.K. Power Tech. Pvt. Ltd.).
(iii) It has been further argued that both the accused persons are illiterate and they never executed any kind of sub-contract with the contractor S.K. Das.Digitally signed by DEVANSHU
DEVANSHU SAJLAN SAJLAN Date:
Cr. Case No.63550/2016 State v. Tuntun & Anr. 2023.10.10 16:34:41 +0530 Page 4 of 10 DISCUSSION OF THE OFFENSES INVOLVED -
9. Section 304A IPC provides for the offence of causing death by negligence or a rash act. It reads as under:
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 dine, or with both.
10. The gravamen of the offence under section 304A IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India v. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan v. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... 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 it 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.
8. 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 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." Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date:
2023.10.10 16:34:48 +0530 Cr. Case No.63550/2016 State v. Tuntun & Anr. Page 5 of 10
11. Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal v. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
12. Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed in the fact situation ought to take, in order to avoid injuries.
13. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
14. Keeping the aforesaid legal standard in mind, the role of the accused persons and their culpability have been discussed hereinafter.
FINDINGS -
15. The case of the prosecution hinges on the testimony of the star witness, PW1 Sachin Gupta, who stated that both the accused persons were the contractor and foreman and they had instructed the deceased Satish Gupta to climb Digitally signed DEVANSHU by DEVANSHU Cr. Case No.63550/2016 State v. Tuntun & Anr. SAJLAN SAJLAN Date: 2023.10.10 Page 6 of 10 16:34:55 +0530 the electricity pole without ensuring that the electric current had been shutdown. He has further deposed that the deceased Satish Gupta had specifically asked the contractor Tuntun whether the electric current had been shutdown or not, to which he had specifically replied that the electric current has been shutdown. He has further deposed that once the deceased climbed the electricity pole and started working, he got electrocuted and fell down. It has been further deposed that the deceased Satish Gupta eventually passed away on 31.08.2008 in the hospital (two days from the date of incident).
16. However, the testimony of the star witness Sachin Gupta is not sufficient to establish that the accused persons were working as contractors. In this regard, it is pertinent to note that a contract/scope of work dated 25.05.2008 executed between M.K. Power Tech. Pvt. Ltd. and the contractor S.K. Das is on record. The said scope of work makes it evident that the concerned contractor was S.K. Das. It is the case of prosecution that the contract in relation to the concerned area was taken by M.K. Power Tech. Pvt. Ltd. from BSES which had appointed S.K. Das as a contractor. The said scope of work/contract specifically mentions in Clause 19 that the contractor cannot sublet the contract without the consent of the concerned company. The said contract is duly exhibited as Ex. PW-4/E during prosecution evidence. Therefore, the prosecution itself has exhibited on record a contract which makes it evident that the contractor was Suman Kumar Das/M.K. Power Tech. Pvt. Ltd. and the accused persons were not the contractors.
17. The witness/PW-1 Sachin Gupta has also admitted in his cross- examination that he was working under Suman Kumar Das who was giving him a salary of Rs. 4,000/-. He has further deposed in his cross-examination that the wife of the deceased (sister in law of PW-1) received a compensation amount of Rs. 3- 3.25 lakhs from M.K. Power Tech. Pvt. Ltd. Further, he has deposed in his cross- examination that electric equipments were supplied by BSES to Suman Kumar Digitally signed by DEVANSHU DEVANSHU SAJLAN Cr. Case No.63550/2016 State v. Tuntun & Anr. SAJLAN Date:
2023.10.10 16:35:01 +0530 Page 7 of 10 Das. Most importantly, PW-1 Sachin Gupta has deposed in his cross-examination that "it is correct that Suman Kumar Das was contractor". Therefore, based on the document Ex. PW-4/E and the testimony of PW-1/Sachin Gupta during his cross- examination, it is evident that the relevant contractor was S.K. Das/M.K. Power Tech. Pvt. Ltd. and not the accused persons.
18. At this stage, Ld. APP has submitted that the self acknowledgment letter Mark-X and Mark-Y specifically mentions that the accused Tuntun had taken the contract work of the concerned area from S.K. Das on 06.06.2008. Therefore, it has been argued that accused Tuntun and Dharmender Pal were the real contractors on the date of incident.
19. I do not agree with the aforesaid submission for the simple reason that it was specifically mentioned in the contract Ex. PW-4/E that the concerned contract/scope of work cannot be sublet. Therefore, the concerned contract could not have been sublet to the accused Tuntun and Dharmender to start with based on the specific condition in the main contract (Clause 19).
20. In any case, I have grave doubt on the authenticity of the self acknowledgment letter Mark-X and Mark-Y since the same is a merely typed document without any notarization/stamping and only bears the signature of the accused Tuntun which has been done in Hindi. No witness was called to prove the said Mark-X. If the IO had verified that the contract was sublet by S.K. Das to accused Tuntun, the least the IO ought to have done was to make the said person S.K. Das a witness in the present matter. However, no statement u/s 161 Cr.PC was recorded by the IO of the concerned person during investigation. The IO never verified from BSES as to who was the actual contractor in relation to the concerned work/area. The IO has specifically admitted the same in his cross-
examination where he has deposed that he did not enquire from BSES Officers regarding who is the contractor and lineman. Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date:
2023.10.10 16:35:08 Cr. Case No.63550/2016 State v. Tuntun & Anr. +0530 Page 8 of 10
21. Therefore, there is a serious lapse in investigation in the present matter where the accused Tuntun and Dharmender have been made an accused on the ground that they were the contractors in relation to the concerned work without actually verifying from BSES as to who was the contractor. The IO has not even bothered to verify the document Mark-X and no witness has been cited to establish the execution of Mark-X. The Ex. PW-4/E was staring the IO right in his face which specifically records that the concerned work was given to M.K. Power Tech.
Pvt. Ltd./S.K. Das but the IO conducted no investigation in this regard (for reasons best known to him). Therefore, based on the aforesaid discussion, the prosecution has been unable to prove that the accused Tuntun and Dharmender were the contractor/foreman. In absence of the said proof, the basis of the case of the prosecution falls flat since the accused persons were arraigned on the ground that they committed supervisory lapse while undertaking the work in question on the date of incident. Since the prosecution has failed to prove that the accused persons were supervisors/contractors/foremen, no supervisory lapse can be attributed to them since the accused persons had no such duty to supervise the work in question to start with.
22. No other eyewitness/ injured has been examined by the prosecution. Therefore, based on the aforesaid reasons, prosecution has not been able to prove its case beyond reasonable doubt against the accused persons and they are entitled to benefit of doubt since the prosecution has failed to establish essential element of rashness or negligence and hence, merely establishing the factum of accident (death by electrocution) is not sufficient to convict the accused persons.
CONCLUSION -
23. To recapitulate the above discussion, to bring home the guilt of the accused persons, the prosecution was required to prove the offence beyond Digitally signed by DEVANSHU Cr. Case No.63550/2016 State v. Tuntun & Anr. DEVANSHU SAJLAN SAJLAN Date:
2023.10.10 Page 9 of 10 16:35:15 +0530 reasonable doubt. In view of the above discussion, I am of the considered view that the prosecution has failed to establish the act of rashness of negligence on the part of accused persons since the prosecution has failed to establish that the accused persons were the contractors who were supervising the work in queston. There is a serious lapse in investigation on the part of IO who did not conduct any investigation in relation to the Ex. PW-4/E which specifically mentions that the concerend contractor was M.K. Power Tech. Ltd./S.K. Das and not the accused persons. Hence, benefit of doubt must be given to the accused persons and the accused persons namely Tuntun S/o Arjun Mukhiya and Dharmender Pal S/o Bacchan Singh are hereby found not guilty. They are hereby ACQUITTED of the offence under Section 304A IPC.
24. Accordingly, file be consigned to record room.
25. Bail Bonds accepted at the stage of trial are accepted for the purpose of section 437A CrPC.
Pronounced in open court on 10.10.2023 in presence of both accused. This judgment contains 10 pages, and each page has been signed by the undersigned.
Digitally signed by DEVANSHU DEVANSHU SAJLAN
SAJLAN Date: 2023.10.10
16:35:24 +0530
(DEVANSHU SAJLAN)
Metropolitan Magistrate-07, West, THC
New Delhi, 10.10.2023
Cr. Case No.63550/2016 State v. Tuntun & Anr. Page 10 of 10