Delhi District Court
State vs . Pawan Kumar on 11 April, 2013
1 FIR No:25/2002
State Vs. Pawan Kumar
IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR NO: 25/2002
PS: Dabri
U/s 287/338 IPC
State V. Pawan Kumar
Date of institution of the case : 29.11.2004
Date on which Judgment was reserved : Not Reserved
JUDGMENT
a) S. No. of the case : 258/2
b) Date of commission of offence : 08.01.2002
c) Name of the Complainant : Sh. Bijender Singh
S/o Sh. Jumna Yadav
R/o H.No.539/405,
Gali No.15, Shiv Puri,
West Sagar Pur, New Delhi.
d) Name of accused and address : Pawan Kumar
S/o Sh. Nagar Mal
R/o 214/313, Gali No.4,
Geetanjali Park, Sagar Pur,
New Delhi.
2 FIR No:25/2002
State Vs. Pawan Kumar
e) Offence complained of : u/s 287/338 IPC
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 11/04/2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. The present case was registered at the complaint of complainant Sh. Bijender Singh in which he stated that he was working in Pawan Printer Factory at Gali No.4 Geetanjali Park, New Delhi. He was working on a machine which was not running well since 56 days and he had also informed in this regard to the owner of the factory Pawan Kumar to get repair the said machine. But he did not give attention. On 08.01.2002 when he was working on the said machine, then break of the machine failed and he sustained injury on his left hand fingers. At his complaint, the present case was registered and after completion of 3 FIR No:25/2002 State Vs. Pawan Kumar investigation the charge sheet was filed against accused Pawan Kumar for the offence u/s 287/338 IPC.
2. Accused was summoned and notice was served upon the accused for the offence u/s 287/338 IPC to which he pleaded not guilty and claimed trial and trial started.
3. Prosecution has filed list of Ten witnesses and has examined Six witnesses.
4. PW1 ASI Suraj Bhan recorded the FIR of the present case Copy of FIR is Ex.PW1/A and his endorsement on rukka in this regard is Ex.PW1/B.
5. PW2 Sh. Bijender Kumar who is the complainant deposed that 4 FIR No:25/2002 State Vs. Pawan Kumar on 08.02.2002 he was operating a machine in the Pawan Printers. The break of machine was failed due to which his hand crushed into the machine and he sustained injury on his hand. Thereafter, he was taken to Shakuntala Nursing home by the brother of the accused where police recorded his statement Ex.PW2/A. Site plan was prepared by the police at his instance Ex.PW2/B. He further stated that he was asking the owner for the last 810 days prior to the incident to get the machine repaired but they did not do so. The incident took place due to break failure of machine.
6. PW3 ASI Dilbagh Singh received the case file on 05.03.2012 for further investigation and he submitted the file on 12.07.2012 with the MHC(R). He had not conducted any effective investigation of the case.
7. PW4 HC Dhan Raj deposed that on 30.07.2012 he received the file of the case for further investigation. He went to office of Inspector of 5 FIR No:25/2002 State Vs. Pawan Kumar Factories PWD building Karam Pura to get the inspection report and thereafter Anil Kumar inspector factories told him that the report has already been sent to SHO, PS:Dabri. Thereafter, he collected the report Ex.PW4/A from SHO PS:Dabri in which it was stated that it was not possible for him to inspect the said machinery as the same was not covered under Factories Act 1948. Thereafter, he completed the investigation and filed the challan.
8. PW5 J.R. Dhami brought the original record of MLC of the injured from Shakuntala Nursing Home. He stated that on 08.01.2002 Dr. Vishal Sharma examined the patient Bijender and prepared report Ex.PW5/A. The patient was operated by Dr. A.K. Jain and Dr. Mohit Garg. He opined the injuries as grievous in nature vide is opinion Ex.PW5/B. He further stated that Dr. Vishal Sharma had left the services of the hospital and his whereabouts were not known. He identified his handwriting and 6 FIR No:25/2002 State Vs. Pawan Kumar signatures as he had worked with him and seen him signing and writing during his official course of duties.
9. PW6 SI Sri Bhagwan stated that on 08.01.2002 on receipt of DD No.88B he along with Ct. Virender reached Shakunatla Nursing Home where injured Bijender was admitted. He collected his MLC. His statement could not recorded due to his unfitness. On next morning he again went there and recorded the statement of injured and got the case registered through Ct. Virender. Then they reached at the spot and at the instance of complainant, he prepared the site plan Ex.PW2/B. He called the photographer and took photographs of the printing machine. On 15.01.2002 he arrested the accused Pawan Kumar and conducted his personal search vide memo Ex.PW1/C and Ex.PW1/D.
10. No other witness examined by the prosecution despite several 7 FIR No:25/2002 State Vs. Pawan Kumar opportunities. Thereafter, PE closed. Statement of accused recorded u/s 313 Cr.P.C. in which he denied all the allegations against him and stated that he want to lead evidence in his defence.
11. Accused examined only 1 defence witness i.e DW1 Sh.Shiv Narain record keeper, Department of Trade and Taxes, Vyapar Bhawan GNCT of Delhi, who brought the record pertaining to Printing Press in the name and style of Pawan Printers. As per record available with the department, the printing press registered in the name of M/s. Pawan Printers and its sole proprietor is Sh. Nagar Mal Sharma. The attested copy of registration certificate of Pawan Printers is Ex.PW1/A. No other defence evidence produced and thereafter DE closed. Matter fixed for final arguements.
12. I have heard the arguments of both the parties. Ld. APP for the 8 FIR No:25/2002 State Vs. Pawan Kumar State has argued that the accused is actual culprit who omitted to take proper care on the offending machine because of which hand of complainant crushed in the machine and he sustained injuries. On the other hand Ld. Counsel for accused stated that accused is having no connection with the said machine. He was neither owner of printing press nor he was posted there in a position to supervise the machine. He never asked the complainant to do work on the said machine. He had committed nothing wrong. Story of the prosecution is concocted one. He is falsely implicated in the present case and is liable to be acquitted. I have gone through the oral and documentary evidence on record and analyzed the statement of witnesses.
13. In the present case the allegations against the accused are that he omitted to take proper care and caution on the machine sufficient to guard against any probable danger and further deputed the complainant to 9 FIR No:25/2002 State Vs. Pawan Kumar work on the said machine and as a result of this rash and negligent act of accused, complainant sustained grievous injuries.
14. The facts which has to be established by the prosecution are that the accused was having control over the machine or he was in the capacity of owner of the factory or otherwise supervising the functioning of the said machine, he deputed the complainant on the said machine and did not take proper care on the said machine rashly and negligently because of which complainant sustained injuries.
15. Complainant who is examined as PW2 is the only material witness regarding the facts of the case. Perusal of his whole statement reflected various contradictions. PW2 stated that accused Pawan Kumar was the owner of the said factory whereas owner of the said factory was Sh. Nagar Mal Sharma as proved by DW1. PW2 when cross examined by 10 FIR No:25/2002 State Vs. Pawan Kumar Ld.APP after his turning hostile, stated that for about 8 days after the incident he was unconscious whereas his statement was recorded on next day of the incident. In his cross examination by Ld. Defence counsel he further admitted that he did not read any statement before signing the same and he was completely aware about the contents of whole statement. He further stated that some of contents of his statement were written by him and some were got written by his brother. In his chief examination he clearly stated that accused was not arrested in his presence. Whereas arrest memo of accused Ex.PW1/C and his personal search memo Ex.PW1/D do contain his signatures. As per his statement and as per the version of IO, site plan was prepared at the instance of complainant. But perusal of site plan Ex.PW2/B which was prepared on 09.01.2002 i.e. next day of incident is not having name or signatures of the complainant as a witness showing his presence there. Further it is stated by complainant himself that he remained unconscious for about 8 days and was not well from the date of 11 FIR No:25/2002 State Vs. Pawan Kumar incident. It is also admitted by complainant in his cross that he went to press i.e. at the spot after 8 days of his discharge from the hospital. Therefore, investigation of the case is having various material contradictions.
16. Now it is to be seen that whether accused was actually having control over supervision over the said machine or was having any liability to put the said machine in proper order. It is proved by DW1 along with document Ex.DW1/A that accused was not the owner of the said factory i.e. Pawan Printers as its owner was Sh. Nagar Mal Sharma. It is further stated the PW2/complainant in his cross examination that he was appointed by the father of the accused as a labour. He further clearly admitted in his cross examination that on the day of incident neither accused Pawan Kumar nor his father were present in the factory. It is also his admitted case that he was having the knowledge for last 56 days that the machine was out of 12 FIR No:25/2002 State Vs. Pawan Kumar order. Therefore, it is evident that accused had not appointed the complainant, accused was not present at the factory on the day of incident to compel him to work on the machine, there is also no evidence that accused was supervising the functioning of the said machine and complainant was having knowledge about defect of machine, if any, for last 56 days. So it cannot be said that complainant sustained injury due to negligence on the part of accused.
17. There is no report regarding mechanical inspection of the said machine showing any mechanical defect in the machine. It is also admitted by the IO that he did not get conducted the mechanical inspection of the said machine which is required to see whether the defect was due to negligence part of any human being or it was merely an accident.
18. The other examined witnesses are official formal witnesses. 13 FIR No:25/2002
State Vs. Pawan Kumar PW1 only recorded FIR, PW3, PW4 and PW6 completed the investigation. PW5 proved the medical documents regarding the injury of the complainant. These all witnesses are not having direct knowledge about the facts of the incident.
19. There is also no any documentary or circumstantial evidence came on record showing that at the time of incident, the accused rashly and negligently omitted to take proper care and caution regarding the said machine and because of his rash and negligent act, complainant sustained injuries.
20. The above said discussion shows that the prosecution miserably failed to establish any ingredients of the offence alleged against the accused due to lack of evidence. Hence, accused Pawan Kumar S/o Sh. Nagar Mal is hereby acquitted in the case FIR No.25/2002 for the offence u/s 287/338 14 FIR No:25/2002 State Vs. Pawan Kumar IPC. Bail bond of the accused shall remain in force for the period of six month starting from today in accordance with section 437A Cr.P.C as no fresh bail bonds furnished by the accused. File be consigned to record room after due compliance.
Announced in the open court on this 11th day of April' 2013 (Dr. JAGMINDER SINGH) This judgment contains 14 pages METROPOLITAN MAGISTRATE which bears my signatures at DWARKA COURTS/DELHI each page.
15 FIR No:25/2002
State Vs. Pawan Kumar FIR NO: 25/2002 PS: Dabri U/s 287/338 IPC State V. Pawan Kumar 11/04/2013 Present: Ld. APP for the State.
Accused is present on bail with Ld. Counsel Sh. R.C. Bhardwaj.
Final arguments heard.
Vide separate judgment pronounced and dictated in the open court, accused Pawan Kumar is acquitted for the offence u/s 287/338 IPC. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI