Delhi District Court
State vs . Dinesh & Another on 27 June, 2007
1
IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE:KARKARDOOMA COURTS:
SHAHDARA, DELHI .
FIR NO. 214/00
P.S. Gandhi Nagar
U/s 304A/34 IPC
State Vs. Dinesh & another
1. Sl. No. of the case : 24/2
2. Date of institution : 25.01.02
3. Name of the complainant : State through SI
Kailash Singh Bisht
4. Date of commission of offence : 24.08.2000
5. Name of accused : 1) Dinesh
S/o Sh. Ram Swaroop
R/o. Village Basti
Paharpur, P.O. Kanta
Gunj, PS Toostpur,
Distt. Sultanpur,U.P.
1) Sudarshan Kumar
S/o Sh. Vinod Kumar
R/o.A61, Preet Vihar,
Delhi.
6. Offence complained of or proved: 304A/34 IPC
7. Plea of guilt : Accused persons
State vs. Dinesh & another FIR No.214/00 BR
2
pleaded not guilty
8. Date of reserving the order : 26.06.07
9. Final order : Acquittal
10. Date of such Order : 27.06.2007
J U D G M E N T
1. In brief, it was alleged against the accused Dinesh s/o. Sh.
Ram Swaroop and Sudershan Kumar that on 24.08.2000 at shop no.9/6679, Janta Gali, Gandhi Nagar, that within the jurisdiction of P. S. Gandhi Nagar the accused Sudershan, being the owner of the shop and accused Ram Swaroop, being the contractor of the shop in furtherance of their common intentions installed the generator in the shop and on account of running of the generator, the labourer Om Prakash who was working in the shop and was sleeping there died on account of negligent act for which no safety measures were taken by the owner & contractor of the premises for avoiding the culpable homicide not amounting to murder of the deceased and thereby committed offences punishable under State vs. Dinesh & another FIR No.214/00 BR 3 section 304A/34 IPC within the cognizance of this court.
2. For the above stated allegations of the prosecution, vide order dt.23.08..2005, the predecessor court of Sh. Rajneesh Kumar Gupta, the then Ld.Metropolitan Magistrate served upon a notice u/s.251 Cr. P. C . for offences punishable under section 304A/34 IPC, to which both the accused persons pleaded not guilty and claimed trial and thus the trial has commenced.
3. For proving its case, the prosecution has examined a total number of seven prosecution witnesses.
Out of these seven prosecution witnesses, PW1 Naresh Kumar, PW5 Amar Singh Chauhan and PW6 Munni Lal were the alleged eye witnesses and the public witnesses who could prove the occurrence of the cause of death of the deceased and were the material prosecution witnesses on whose shoulders the case of the prosecution rests but unfortunately all these three witnesses State vs. Dinesh & another FIR No.214/00 BR 4 could not support the prosecution case at the time of trial.
Whereas, PW2 constable Rajesh Kumar and PW7 inspector H. R. Meena were the police officials who proved the photographs of the scene of the occurrence and the negatives were proved as Ex.P1 to Ex.P8 by constable Rajesh Kumar and positives photographs were proved by inspector H. R. Meena . Thus, these two witnesses were formal as they came to the witness box to prove the photographs only.
Further, PW3 HC Jagmohan Singh was the first investigating person who participated in the the investigation with SI Kailash Bisht who on entrustment of the investigation prepared rukka and this witness went for registration of the case to PS. Then this witness could prove only the factum of registration of the case and nothing else.
Whereas, PW4 Dr. Satish Kumar Rao was the medical witnesses who proved the MLC No.379/00 as Ex.PW4/A and second MLC No.379B/00 as Ex.PW4/B and testified that the State vs. Dinesh & another FIR No.214/00 BR 5 injured was medically examined by him. Thus, this witness was necessary medical witness to prove the medical record but nothing to say about the guilt of the accused.
In this case, during trial, IO was not examined . That is all for the prosecution evidence.
4. Statement of accused persons was recorded under section 281 Cr.P.C. wherein when accused were examined for the allegations and incriminating evidence, they denied all the allegations and evidence on record against them and submitted that they were falsely implicated in connivance with the police to succeed the registration of the case when reported to the police on the death of the deceased but they both did not lead any defence evidence.
5. Ld. APP for the State has submitted that the case of the prosecution has been proved through the ocular evidence with the State vs. Dinesh & another FIR No.214/00 BR 6 supporting documents and the medical witness to show the cause of death and that the eye witnesses being the colleague labourers and employees of the accused persons have been won over. However, Ld. defence counsel Sh. S. S. Singh has vehemently countered the prosecution case submitting that the public witnesses who were the alleged eye witnesses of the occurrence have not supported the prosecution case and were declared hostile and that the remaining evidence is not sufficient to connect the accused persons with the commission of offence and on this account benefit of doubt be given to the accused persons.
6. On careful perusal of record placed with the file, consisting of ocular as well as documentary evidence, in the light of contentions of both the parties, it is observed that only case of the prosecution was for the offences of negligence on the part of the accused persons being the employer and contractor of the shop in which the deceased was working as a labourer and it was State vs. Dinesh & another FIR No.214/00 BR 7 alleged against them that they were under the obligations to provide safety and guards to avoid any probable danger to human life or injuries to any of the persons employed in the work and it was also the allegations of the prosecution that due to such negligence in providing safety the deceased Om Prakash has died due to suffocation of the generator under the supervision of the accused persons that he had expired due to such cause in such occurrence. Thus, the prosecution had to prove following three important ingredients for proving the offences alleged against the accused persons :
i) that the occurrence had taken place at the relevant date, time and place due to the fault on the part of the accused persons;
ii) that the accused was rash and negligence in providing safety measures to avoid such probable danger to human life;
iii) that the deceased had expired due to the cause and negligence in such occurrence and that is also due to the rash and negligent act on the part of the accused State vs. Dinesh & another FIR No.214/00 BR 8 These factors were to be proved by the prosecution CuasaCausans that is these three facts are mutually dependent on each other.
7. Further, it was observed that during trial all the three public witnesses PW1 Naresh Kumar, PW5 Amar Singh Chauhan and PW6 Munni Lal did not support the prosecution case despite the fact that they were the alleged eye witnesses of the prosecution and they resiled from their previous statement given to the police and were declared hostile by the State and despite their lengthy crossexamination by State none of these three witnesses admit even recording of their statements by the police at the time of investigation.
Further, it is appreciated that when their statements were put to them they denied all contents and all these three witnesses did not support prosecution case even a bit. Thus, through the ocular evidence of the eyewitnesses cannot prove even the State vs. Dinesh & another FIR No.214/00 BR 9 occurrence, what to talk about the fault on the part of the accused persons. The plea of winning over of these witnesses was not substantiated by the State through any substantive evidence to prove otherwise.
8. Further, it is observed that during trial, through the ocular evidence of PW3 HC Jagmohan Singh, only registration of the case could be proved that could not connect the accused persons with the offence. However, through the testimony of PW2 constable Rajesh Kumar and PW7 inspector H. R. Meena the scene of occurrence after the death of the deceased were proved that could also be not connected with the guilt of the accused in any manner and the ocular evidence of PW4 Dr. Satish Kumar Rao could prove the death of the deceased and the cause of death but in any manner it could not be connected that the cause of death was related act committed by the accused persons.
State vs. Dinesh & another FIR No.214/00 BR 10
9. Similarly is the case with supporting documents proved on record as no connecting documentary evidence could be produced to connect the accused persons with the occurrence neither the manner to prove the guilt of the accused. Thus, the hostility of the three eye witnesses have collapsed the prosecution case absolutely.
10. Further, out of the list of sixteen prosecution witnesses only seven witnesses were examined and several witnesses were kept aback though some were the police officials who might have been available and their nonexamination leads to an adverse inference that incase of their production for examination in the Court they may not support the prosecution case, if they could have been examined.
In this regard the reliance is placed on the observations made in a case cited as AIR 1975 SC 1453 wherein it was observed that :
State vs. Dinesh & another FIR No.214/00 BR 11 "It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case"
11. It is further observed that the medical record (MLCs) was exhibited in the Court to prove the cause of death as suspected of poisoning through carbon mono oxide but the prosecution could not produce the medical witness to exhibit the post mortum report to prove that the death of the deceased and that it was due to failure of safety measures to be taken by the accused persons to avoid such incident. Thus, during trial even the cause of death could not be proved to connect the death of the deceased with the occurrence.
12. Thus, none of the above three mentioned ingredients could be proved by the prosecution during trial against both the State vs. Dinesh & another FIR No.214/00 BR 12 accused persons and nonexamination of IO is fatal, in these circumstances, to the prosecution case.
13. Therefore, on the above observations on law and facts, the court is of the considered view that the prosecution could not prove, all the ingredients beyond reasonable doubt for any of the offences punishable u/s.304A/34 IPC on the basis of evidence produced during trial, against both the accused persons.
Thus, on the basis of principles of criminal justice system, a benefit of doubt is given to both the accused persons Dinesh and Sudershan Kumar and both the accused persons Dinesh and Sudershan Kumar are acquitted from the charges levied against them for the offences punishable u/s.304A/34 IPC.
ANNOUNCED IN THE OPEN COURT
ON 27th Day of June 2007
(DR. ARCHANA SINHA)
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
State vs. Dinesh & another FIR No.214/00 BR
13
FIR NO. 214/00
P.S. Gandhi Nagar
U/s 304A/34 IPC
State Vs. Dinesh & another
27.06.07
Present: Ld. APP for the state.
Accused Dinesh and Sudershan Kumar are on bail with counsel Sh.S. S. Singh, for both the accused persons. Vide Separate order/judgment both the accused persons Dinesh and Sudershan Kumar are acquitted from the charges levied against them for the offences punishable under section 304A/34 IPC. Their bail bond/surety bond be discharged.
File be consigned to Record Room.
MM/27.06.07 State vs. Dinesh & another FIR No.214/00 BR 14 State vs. Dinesh & another FIR No.214/00 BR