Delhi District Court
State vs . Pramod on 30 July, 2018
IN THE COURT OF Ms. DEEPIKA SINGH
METROPOLITAN MAGISTRATE, DELHI
Unique I.D. R0301102009
New Case No.70880/16
FIR No.633/03
PS : Uttam Nagar
u/s 304 A IPC
State vs. Pramod
Kumar Girdhar and
Vijay Aggarwal
JUDGMENT :
a. Sl. No. of the case : 1592/4
b. Date of Commission of offence : 21.07.2003
c. Name of complainant : HC Jai Prakash
d. Name of the accused, his parentage :(1) Mr. Pramod Kumar
Girdhar
S/o Sh. Harichand,
R/o B-3/20, Janak Puri,
Delhi.
(2)Mr. Vijay Aggarwal
S/o Sh. Chaman Lal
R/o 18/5, Shakti Nagar,
Delhi.
e. Offence complained of or proved : u/s 304 A IPC
f. Plea of the accused : Pleaded not guilty.
g. Final Order : Convicted
FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 1 of 47
PS Uttam Nagar
h. Date of such order : 30.07.2018
Brief statement of the reasons for the decision :
1. Briefly stated, the case of the prosecution is that on 21.07.2003 at 40 feet road, Chanakya place, DDA Market, Uttam Nagar, both the accused persons namely Mr. Pramod Kumar Girdhar and Mr. Vijay Aggarwal while digging a nala for laying cables of electricity, failed to put sufficient rope or any other signals of warning to warn the human being from falling inside the nala and due to which one boy namely Master Ramzan, son of Mr. Rehman fell inside the said nala and died due to drowning. After completion of investigation, the charge sheet was filed in the court.
2. Notice was served upon the accused persons for the offence under section 304 A IPC, to which they pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined total 6 witnesses i.e. PW-1 Ct. Virender, PW-2 Dr. Uday Kumar, PW-3 Sh. Desraj, PW-4 Retd. SI Bal Kishan and PW-5 ASI Jai Prakash and PW-6 IO FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 2 of 47 PS Uttam Nagar Inspector Tejpal.
4. PW-1 Ct. Virender deposed that on 21.07.2003 he was posted at PP East Uttam Nagar, police station Uttam Nagar, on receipt of DD no.9 he along with HC Jai Prakash reached at 40 foota road, Chankyapuri where one boy about 12 years was lying in unconscious condition and uncle of the aforesaid boy namely Azad met them. IO sent the said boy along with his uncle to DDU Hospital. He further deposed that at the spot there was no indicator that there was a pit. He further deposed that IO prepared rukka and handed over the same to him and he got the case registered from the police station and after registration of FIR he went back to PP East Uttam Nagar and handed over the copy of FIR and original rukka to SI Tejpal and he along-with SI Tejpal came at the spot.
Witness was cross examined by Ld. defence counsel wherein he deposed that he reached at the spot for the first time along with IO at about 12/12.15 noon and there were about twenty to thirty people were at the spot. The body of the boy was lying at FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 3 of 47 PS Uttam Nagar the spot and he had carefully seen the boy lying over there. He did not notice if the skin on the hand of the boy had a shrinkage due to pit. He cannot tell the depth of the pit and there was no red warning tape affixed at the spot. He cannot tell the length of the work where digging was going on as the water was filled all around. They had come in pursuance of the PCR call of electrocution and they carried out the investigation from the people present at the spot. He was shown two photographs and on seeing them he stated that one of the photograph which is Mark A is of the spot and the other photographs which were Mark B and Mark C, he stated that he cannot tell whether the same are of the spot or not. He further deposed that where the body was lying there was no caution tape or board. He remained at the spot for one hour when he visited the spot for the first time. He had visited the spot two times and on his second visit to the spot that he was accompanied with IO SI Tejpal Singh.
5. PW-2 Dr. Uday Kumar deposed that on 22.07.03 he was working as Medical Officer in Forensic Department at DDU Hospital and on FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 4 of 47 PS Uttam Nagar that day one body of deceased Ramzan aged about 12 years male was brought for postmortem examination with alleged history of drowning. After examination, he conducted the postmortem of deceased Ramzan vide postmortem report no.714/03 dated 22.07.03 and the same is Ex.PW2/A and the cause of death was drowning which was anti-mortem in nature.
Witness was cross examined by Ld. defence counsel wherein he deposed that the investigation officer would have requested with the history of drowning. He further deposed that remark/observation at point A of Ex.PW2/A by saying shrinkage of skin on palmer, aspect of hand and sole of foot was given by him after examination of the body. He denied the suggestion that shrinkage was due to electrocution. The lungs were congested on dissection as stated in his report and there was no water in the lungs. He denied the suggestion that death did not take place due to drowning or that death had taken place due to electrocution. He denied the suggestion that his report was false and was prepared under the infuence of police. He denied the suggestion that none of the observations in Ex. PW2/A directly / indirectly concludes the FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 5 of 47 PS Uttam Nagar cause of death drowning. He admitted the fact that as per his report the water was not found in the lungs. He denied the suggestion that he was deposing falsely in order to support his report.
6. PW-3 Sh Deshraj deposed that he was working as record clerk since the year 2000 in DDU Hospital and he had been deputed by M S DDU Hospital to identify the handwriting and signatures of Dr. Renu Sehgal for the MLC no. 13290 of patient namely Ramjan. Dr. Renu Sehgal had left the services of the hospital and her present address is not available. He is acquainted with the signatures of Dr. Renu Sehgal as he had seen her writing and signing during the due course of his duties. The patient Ramjan was examined in DDU Hospital on 21.07.2003 at about 1.05 PM vide MLC no.13290 and the said MLC was in the handwriting and signatures of Dr. Renu Sehgal.
Witness was cross examined by Ld. defence counsel wherein he deposed that he had no personal knowledge regarding the examination of patient and he was deposing on the basis of FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 6 of 47 PS Uttam Nagar hospital record and he did not have any personal knowledge regarding the MLC.
7. PW-4 Retd. Balkishan deposed that on 21.07.2003 he was posted as Duty Officer at PS Uttam Nagar and his duty timings were 5.00 PM to 01.00 AM. At about 5.20 PM Ct. Virender came with a DD entry no.15 A which was sent by HC Jai Prakash, on the basis of the said DD entry he registered the FIR bearing no.633/03 and made endorsement on the rukka and handed over copy of FIR and original rukka to Ct. Virender . This Witness was not cross examined by the counsel for the accused despite grant of opportunity.
8. PW-5 ASI Jai Parkash deposed that on 31.07.2003 he was posted at PP - East Uttam Nagar, PS- Uttam Nagar, Delhi as Head Constable and on that day he was on emergency duty and at about 11:40 he received DD. no. 9 regarding the death of child at 40 foota road, chankya place. DD. no. 9 is Ex. PW 5/A. He alongwith Ct. Virender reached at the spot and found that the boy FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 7 of 47 PS Uttam Nagar was lying unconscious beside the dig on the road filled with the water and there was no safety measure was adopted around the dig and there was no indication and signed board for caution was placed. The name of the injured was came to be known as Ramjan and one person namely Azad who disclosed him the uncle of the injured met with him . Thereafter, he send the injured to the hospital alongwith Azad and Ct. Virender and he searched the eye witness but they were not found and he proceeded to DDU hospital. He collected the MLC of injured Ramjan who was declared as brought dead. He searched the eye witnesses at the hospital but none of the eye witnesses was found. Thereafter, he came at the spot and no eye witnesses was found. Thereafter, on the basis of DD. no. 9 he prepared the Rukka Ex. PW 5/B and handed over the same to Ct. Virender for registration of FIR and he went to the police station alongwith the copy of rukka and he came at the spot after registration of FIR alongwith SI Tej pal who conducted the further investigation of the case. SI Tej Pal prepared the site plan in his presence which is Ex. PW5/C. He further deposed that his statement was recorded and he left the spot. FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 8 of 47 PS Uttam Nagar
9. Witness was cross examined by the Ld. defence counsel wherein he deposed that there was no red ribbon was tide around the dig. He denied the suggestion that there was ribbon and other safety measure was being adopted around the dig when he reached at the spot. IO Tej pal reached at the spot after one and half hour after he reached at the spot. He did not carry out any investigation except to know the name of the deceased and uncle Azad. He remained at the spot for about 15 minutes after coming of SI Tej pal who conducted the further investigation of the case. It is mentioned as Aggarwal sweet in the site plan Ex. PW 5/C. He cannot say whether any Aggarwal sweets was existing at the spot or not. He did not know that if any shop in the name of Jagdamba sweet exists or not. He denied the suggestion that no proceedings was conducted by him and IO at the spot. He further denied that site plan was prepared at the police station.
10. PW-6 IO Inspector Tejpal deposed that on 21.07.2003, he was posted as SI at PP East Uttam Nagar PS Uttam Nagar and on that day, DD No.9 was handed over to HC Jai Prakash who FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 9 of 47 PS Uttam Nagar reached on the spot i.e. Chankya Place along with Ct. Virender. Thereafter, he also reached at the spot on the said information and he found HC Jai Prakash was present at the spot and he told him that one boy namely Ramzan died due to drowning in the pit/nala which is dug by BSES Ltd. HC Jai Prakash has already sent the dead body to hospital and HC Jai Prakash endorsed on the DD and sent Ct. Virender to register the FIR. After registration of FIR, the investigation was handed over to him and he made a local inquiry. Then he prepared the site plan which is already Ex. PW5/C bearing his signature at point-A and he took the photograph on the site with his personal camera. Nine photographs with negatives were shown to the witness and after seeing the photographs and negatives witness identified to be the same which were taken at the spot. Out of 9 photographs, three photographs are already marked as mark-A, mark-B and mark-C which are now exhibited as PW6/A (colly.) Remaining 6 photographs are collectively Ex.PW6/A1 and negatives are collectively Ex.PW6/B. He further deposed that thereafter, he recorded the statement of witnesses. On the next day, the Postmortem on the FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 10 of 47 PS Uttam Nagar body of deceased was conducted in DDU Hospital on his request and the dead body was identified by the relatives vide identification statement of Mr. Azad and Mr. Dilkash Ex.PW6/C. After the postmortem, the dead body was handed over to Mr. Azad vide handing over memo Ex.PW6/D. Thereafter, he inquired from the BSES Office about the contract given for this work in Chankya Place and the company provided the contract details between BSES and High Tension Erector Company. According to documents provided to him, accused Mr. Pramod Girdhar and Mr. Vijay Aggarwal, were found to be the owners of High Tension Erector Company which was doing the digging work in Chankya Place, Uttam Nagar, Delhi. He collected the photocopy of the documents i.e. work order, terms and conditions and partnership deed which are marked as mark-X (colly.). He further deposed that one letter was also given to him along with photocopy of the documents by Engineer D.C. Gupta dated 24.07.2003 and the same is Ex.PW6/E. The accused Mr. Pramod Girdhar and Mr. Vijay Aggarwal were arrested on 28.08.2003 vide arrest memo of accused Mr. Pramod Girdhar is Ex.PW6/F and accused Mr. Vijay FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 11 of 47 PS Uttam Nagar Aggarwal Ex.PW6/G. He further deposed that their personal search was taken vide personal search memo of accused Mr. Pramod Girdhar Ex.PW6/H and accused Mr. Vijay Aggarwal is Ex.PW6/I bearing his signature at point-A. Both the accused persons are present in the court on the day of his deposition and were correctly identified by him. The postmortem report was collected which is already Ex.PW2/A. He recorded the statement of witness. After completion of investigation, he prepared the challan and filed accordingly.
Witness was cross examined by the Ld. defence counsel wherein he deposed that both the accused were interrogated when they were arrested. He did not record any disclosure statement of the accused in this case. The three photographs which were earlier marked as mark-A, B and C and are now exhibited as Ex.PW6/A (colly.) are a part of the nine photographs taken by him by his camera at Chankya Place i.e. Job work place. He voluntarily deposed that it was a long stretch. He inquired from the public persons and relatives of deceased and they told that the said trench was dug by the contractors of BSES Rajdhani Pvt. Ltd. He FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 12 of 47 PS Uttam Nagar recorded the same in the statement of public witnesses recorded u/s 161 Cr.P.C.
On specific question put to the witness that whether there was barricading and caution tape affixed on the spot, he deposed that at the actual site of incident there was no barricading and tape and other precautionary measures. However, at some other places the barricading and caution tape existed and he had thoroughly inspected the site. He did not notice that the illegal electricity was erected through unauthorized wiring taken from the electricity pole by jhuggi/clustor dwellors and he did not notice that the postmortem report showed the shrinkage of skin from the hand and the bottom of the foot. He was further asked whether he recorded the statement of any eye witness who has seen the incident to which, he replied that he recorded the statement of Mr. Azad, Mr. Dilkash and Mr. Jagat Singh. He was further asked that none of, Mr. Azad, Mr. Dilkash and Mr. Jagat Singh witnessed the occurrence of drowning of the deceased, to which he replied that he did not remember. He was further asked that if they came at the spot subsequently, to which he replied that when he reached there FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 13 of 47 PS Uttam Nagar he found Mr. Azad, Mr. Dilkash and Mr. Jagat Singh at the spot.
He admitted the fact that the witness Azad and Dilkash are the relatives of deceased Sh.Jagat Singh was a public witness and he did not record the statement of any shopkeepers or resident at the spot as they were not available due to heavy rain and full of water on the road. He denied the suggestion that the death of deceased occurred due to electrocution and not because of drowning. He denied the suggestion that the accused were not responsible for the digging as the photographs showed the barricading and the sign of caution. He cannot say as if the postmortem report shows the shrinkage of skin on palm and sole of foot and there is cutting of electrocution in the postmortem report because it was prepared by the doctor. He admitted that it is mentioned in DD No. 9 Ex.PW5/A that the death of a child had occurred due to electrocution and the FIR already exhibited as Ex.PW4/A was registered on the basis of DD No.9 stated above. He denied the suggestion that the accused persons are responsible for negligence and death of deceased. He denied the suggestion that the death of the deceased occurred due to FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 14 of 47 PS Uttam Nagar electrocution. He denied the suggestion that the place of incident there was barricading and there were caution tape around the same. He denied the suggestion that a live wire had broken, which was unauthorizedly installed by the jhuggi dwellers for illegal extraction of electricity from the electricity pole and the death of the deceased occurred due to the current from the live wire. He denied the suggestion that he did not record the statement of any eye witnesses. He deposed that at the time of preparing of the site plan and the recording the statement of witnesses, at the spot, it was not raining and at that time, he did not find any public persons. He deposed that he remained there for 3-4 hours. He deposed that the place of occurrence is situated on a road called 40 feet road and there were houses but not all around. He deposed that he did not make any inquiry from the said houses and he did not inquire from the passerby and did not record the same in his case diary. He deposed that when he reached at the spot there were not many people at the spot. He denied the suggestion that the place of occurrence is situated at a thickly populated place and he did not record the statement of the persons who were neighbours and he FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 15 of 47 PS Uttam Nagar did not make any such inquiry from them. He further denied the suggestion that he was deposing falsely being the police official.
11. After conclusion of the prosecution evidence, statement of accused persons were recorded separately and all the evidence against them was put to them but they denied allegations against them and opted to lead evidence in their defence. Accused persons examined five witnesses in their defence namely DW-1 Dr. Sumit Singh, DW-2 Sh. Kirpal Singh, DW-3 Ms. Manju Sharma, DW-4 Mr. Sonu Jain and DW- 5 Ms. Baljeet Kaur.
12. DW-1 Dr. Sumit Singh deposed that he was working as RMO in Mata Roop Rani Maggo Hospital, near Uttam Nagar, New Delhi and he had seen the post mortem report Ex. PW2/A. As per postmortem report there was no water in the lungs of the deceased and there is shrinkage of skin of one hand and foot and there is hemorrhage in the brain. He further deposed that on the basis of all these he was of the opinion the death of the deceased caused due to electric shock.
The Witness was cross examined by the Ld. APP for the FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 16 of 47 PS Uttam Nagar State wherein he deposed that he is having a B.A.M.S. degree and he was not having any specialized degree in forensic. He further deposed voluntarily that he had studied forensic at his second prof. of his education and he had never conducted any postmortem. He denied the suggestion that since he was not having any specialization in forensic therefore he cannot opine on postmortem. He denied the suggestion that he was deposing falsely at the instance of accused.
13. DW-2 Sh. Kirpal Singh deposed that he is doing the business of manufacturing RCC Slab Since 2001 at Naglipuna Delhi and he used to supply the RCC Slab to High Tension Erector office at Janakpuri. He further deposed that he also supply the RCC Slab to BSES and Tata Powers Ltd since 2001.
He further deposed that he know the accused persons present in the court being owner of High Tension Erector as he supplied RCC slab to them since 2001 and the slab in question is used to place on high tension cable which is layed under ground. He also supplied RCC slab to the accused company in the year 2003. He further deposed that in the month of July 2003, he went FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 17 of 47 PS Uttam Nagar to Chankya place Bindapur 40 foota road to deliver the RCC slab for BSES by tempo loaded with RCC slab and at about 11-12 noon he had seen public person collected there at Chankya place in mud and saw that one boy was lying in the mud. He had seen one broken electric wire was hanging near the boy and the public persons were talking that the boy died due to the electrocution by the broken wire. There were other wires on the electric pole besides the wall. There were number of wires of jhuggi dwellers at electric pole who were drawing the electricity from the electric pole illegally. In the meantime police official came at the spot and they had taken the dead body of boy from the spot. The trench for cable line was dug about 100 meters away from the dead body was lying. There was red cautioned tape of BSES was put around the trench and thereafter he loaded RCC slab from the tempo and left the spot. Presently he is not supplying the RCC slab to the accused persons. He had brought his original voter I card (OSR) and photocopy of the same is Ex DW2/A. The same is taken on record.
Witness was cross examined by the Ld. APP for the State wherein he deposed that he cannot produce any of the FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 18 of 47 PS Uttam Nagar document/bill regarding for supplying the RCC slab to the accused persons. He did not use to raise any bill against the supply of RCC slab to the accused persons. He supplied RCC Slab to the accused persons about 25 times and he personally had not gone to the spot for supplying RCC slab except on the day of incident. He cannot tell the exact dates on which the RCC slab was supplied to the accused persons except the month of incident i.e. July 2003. He was not having any documents regarding manufacturing of RCC slab in the year 2003 as the company was only registered in the year 2005. On the day of incident he delivered RCC slab to chowkidar of the company of the accused person called as Pandit Ji. He never apprised the fact to the police that boy died due to the electrocution. He denied the suggestion that he never visited at the spot on the day of incident and he was deposing falsely at the instance of accused persons. He further denied the suggestion that he did not bring or produce any documents regarding supply of RCC slab to the accused persons as he never supplied the same to the accused persons.
FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 19 of 47 PS Uttam Nagar
14. DW-3 Mrs. Manju Sharma deposed that in the year 2001, she was running a ladies boutique shop in the name and style of Kashish Creations at 40 Foota Road, Near Jagdamba Sweet, Chankya Place, Near Janakpuri, New Delhi. She further deposed that she started the business on 21 st July 2001 and closed the same by the end of 2004 and on 21 st July, 2003 as they had a hawan on the start of the 3rd year of their boutique, lot of people were found assembled near their shop, herself and Ms. Baljeet Kaur who was doing the business of boutique with her, went to the said place and they found that a boy was lying in the mud and some broken electricity wire was hanging there. People were telling that the boy had died because of the electric current flowing from the said broken wire. They remained there for some time and came back because they had to attend the guests at their shop, as they had just finished the hawan. The shop was taken on rent and the rent was paid at the rate of Rs.1500/- per month. She did not know the complete name of the landlord but they used to call him Jain Sahab. She did not issue any rent receipts and there were other shops also around. The broken wire was hanging from the pole and FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 20 of 47 PS Uttam Nagar there were other wires where illegal electricity was extracted by Jhuggi Dwellers. She did not know Mr. Pramod Girdhar and Mr. Vijay Aggarwal. They approached her 5-6 days ago to give evidence in this case and Mr. Pramod Girdhar has come to her house. The detail of the case and court number was informed by him. She has not been accompanied by him and traveled to a cab from her house. She further deposed that she came alone to give evidence in this case and she had brought her Election Identity card. (OSR).
Witness was cross examined by the Ld. APP for the State wherein she deposed that she did not have any documentary proof for running shop in the name and style of Kashish Creations except a bill book. She admitted that there was a trench of BSES at Chankya Place but trench was little away from the place of incident. The boy was lying in the mud but not in trench. She cannot tell the day of incident but it was about 10.30-11.00 am. She did not lodge any complaint regarding broken wire from electric pole. She can only say that death was caused due to electrocution as people gathered there were narrating that the boy FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 21 of 47 PS Uttam Nagar died due to electrocution and the police never inquired about the incident. She never went to police to lodge the complaint that the boy died due to electrocution in the mud. She denied the suggestion that the boy was died due to drowning in the trench dug by BSES Rajdhani and there was no safety measure followed by contractor. She cannot say that the trench was dug at the instance of accused persons. She denied the suggestion that she was deposing falsely at the instance of the accused persons.
15. DW-4 Mr. Sonu Jain deposed that he has a kabari shop at L- 103, Chankya Place, 40 feet road, New Delhi-59 and he was doing the business in the said shop for the last 5 years. The said shop is owned by his father and his house is at a distance of about 100 meters from the shop. He had been living there for the last 20 years and it was around 10.00 am or so when a lot of people had gathered near their shop, in the year 2003. It was rainy season but date and month he do not remember and he went to the place where people had gathered. He noticed a boy lying in the mud and people were saying that the boy had died because of electric FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 22 of 47 PS Uttam Nagar current. He had noticed a broken electric wire hanging from the pole and there were other wires also. He cannot tell as to who had connected the said wires and he remained present there for 10-15 minutes and thereafter he left. A boutique was being run by the two ladies at that time and he cannot tell the name of the boutique. He further deposed that he had brought his election card (OSR) and the copy of which is submitted in the court.
Witness was cross examined by the Ld. APP for the State wherein he deposed that at the time when he heard noise regarding incident he was present at his house. The distance between the place of incident and his house is about 100 meters. He cannot tell the name of those persons who gathered at the place of incidence and some of them were locality people and some of them were outsiders. The trench was dug for cable laying by BSES at Chankya Place and the warning tape existed near the trench. He further deposed that the boy had not fallen in the trench and was lying in the mud outside the trench. He further deposed that he did not lodge any complaint in the electricity department regarding the broken wire. He further deposed that police neither FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 23 of 47 PS Uttam Nagar asked him regarding the death of the boy by electrocution nor he ever told the police regarding the same. He denied the suggestion that the boy had died due to drowning in the trench dug by the accused persons and not due to electrocution. He further denied the suggestion that there was no safety measures around the trench. It is wrong to suggest that he was deposing falsely at the instance of the accused persons.
16. DW-5 Ms. Baljeet Kaur deposed that she was doing the business of sale of ready-made suits of women and she was doing the said business for the last several years. In the year 2001 she was running a boutique along with one Mrs. Manju Sharma in the name and style of Kashish Creations, at Bindapur, Chankya Place at 40 foota road and they were running the said boutique since the year 2001 till 2004. She had brought a bill book bearing sl. no.801 in respect of stitching of ladies suits and sale thereof.
Thereafter, original bill book was produced by the witness, copy of first 10 pages of the bill book were placed on record by the witness and original bill book seen and returned. FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 24 of 47 PS Uttam Nagar She remember that a boy had died near their boutique, due to electrocution on 21.07.2003 and she remember the said date because they had performed a hawan in the morning on that date being the start of third year of the boutique. She further deposed that they were distributing the prasad after hawan and it may be about 10.30 or 11.00 am when people had gathered near their boutique, at a small distance. They had guests in their shop and they went to the place of incident and found that one boy was lying in the mud and a broken electric wire was hanging from the pole. Several people had gathered there, who were saying that the boy had died due to electrocution. There was a sweet shop near the place of incidence and there were jhuggis near the place of incidence and the jhuggi dwellers had installed illegal wires to extract electricity and one such wire was lying broken hanging from the pole. They remained at the place of incident for about 5-7 minutes and they came back and she had brought her Election Card of the previous address at Toda Pur, where she was earlier living on rent and presently she was living in Inder Puri in a rented house.
FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 25 of 47PS Uttam Nagar Witness was cross examined by the Ld. APP for the State wherein she deposed that except the Bill Book, she had not brought any other document in respect of the running of boutique business namely Kashish Creations and she admitted that except the first bill, the name of Kashish Creation is not printed on the subsequent pages of the bill book. She voluntarily deposed that the subsequent pages are the counter foil of the original, which was given to the customer and the name is printed only on the customer copy. The first bill, being the original customer copy, shows the existence of the name of the boutique and the place of incident may be at a distance of about 100 meters from their boutique. She admitted that a trench was dug by BSES at Chankya Place, through accused persons as contractors and the boy was lying in the trench. She voluntarily deposed that the boy was lying in the mud away from the trench. Police official did not come at the place of incidence in her presence but she came to know later when the police official came. She cannot say where boy was taken by the police officials and she was not inquired by the police. She did not lodge any complaint either to the police or any FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 26 of 47 PS Uttam Nagar authorities regarding hanging of broken electric wire from electric pole. She further deposed that there was caution tape around the trench dug by BSES. She did not know the name of the persons who collected at the place of incident. She denied the suggestion that the boy died due to drowning in the trench dug by BSES Rajdhani as there was no safety measure followed by contractor who are the accused persons present in the court. She further denied the suggestion that she was deposing falsely at the instance of the accused persons.
17. I have heard the final arguments from both the sides and have perused the evidence on record led by the prosecution and defence carefully. I have also gone through the written submissions filed by the Ld. Counsel for the accused persons.
18. Ld. APP for the State has submitted that testimony of prosecution witnesses has proved the case of the prosecution beyond reasonable doubt which not only remains unshaken even during the cross- examination but also supported by other witnesses and documentary FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 27 of 47 PS Uttam Nagar evidence. It is, therefore, prayed that the accused persons may be convicted accordingly.
19. Ld. Counsel for the accused has argued that the arguments advanced by the Ld. APP for the State are fallacious, merely based on suppositions and based on a wrong and misconceived premise. Ld. Counsel for the accused has submitted that the testimony of PW- 1,PW2, PW-5 and PW-6 are unreliable and the testimonies of other witnesses are also full of loopholes and contradictions and defence witnesses brought by the accused establish the innocence of the accused persons. Hence, it is prayed that the accused persons may be acquitted in the interest of justice.
20. For deciding the present matter, it will be appropriate to take a look at offence u/s 304 A IPC. The relevant sections are reproduced below for ready reference.
Section 304 A IPC reads us under:-
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 28 of 47 PS Uttam Nagar punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
21. It is a cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
22. On the careful perusal of the material on record, it is revealed that the prosecution has proved its case beyond reasonable doubt. The work of digging of trenchs for laying off cables was assigned to M/s Hi-tensions Erectors by the work order marked as Mark- X and Ex. PW6/E. The accused persons were partners in the firm i.e. M/s Hi-Tension erectors. The accused persons have admitted that they had been assigned the work of laying off cables, digging of trench at the scene of incidence i.e. 40 foota road, Chankya place, FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 29 of 47 PS Uttam Nagar Bindapur within the jurisdiction of PS Uttam Nagar. All the prosecution witnesses have proved that the trenches were being dug at the site of alleged incidence i.e. 40 foota road, Chankya place, Bindapur within the jurisdiction of PS Uttam Nagar, at the behest of the accused persons being contractors of the said work.
23. The prosecution witness no.2 Doctor Uday Kumar has categorically opined the cause of death to be drowning and has also observed " Mud Particles present in the Trachea" vide post- mortem report Ex.PW2/A.
24. Admittedly, the work of the digging of trench for laying of cable was assigned to M/s Hi-tension Erector by the work order mark-X and Ex. PW6/E. The accused persons have not denied that they were not connected with the firm i.e. M/s Hi-tension Erector. If we carefully examine the testimony of all the witness and their cross examination, no question has been put the PWs that accused persons were not granted the work of digging the trench, meaning thereby, it is an admitted case that they were in the control of FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 30 of 47 PS Uttam Nagar digging the trench.
25. It is crystal clear that accused persons were the contractor of digging the trench in the place of incident. Now, the prosecution has to prove, whether the death of the boy Master Ramzan has actually happened due to the drowning. Admittedly, the body has been found near the trench in the mud. At this stage, postmortem report that is Ex.PW2/A becomes significant. Perusal of Ex.PW2/A shows that cause of death has been due to drowning which is ante mortem in nature. Whole defence's case rest on the plea taken by the accused persons that death has actually happened due to electrocution. One DW-1 Dr. Sumit has been bought in evidence by the accused persons who has deposed that the reason for death was infact electrocution. However, this witness does not possess any experience regarding the conducting of the postmortem as he had done only BAMS degree and not the MBBS degree. He admitted in his cross examination by Ld. APP for the State that he had only BAMS degree and he has never conducted any postmortem. Since Dr. Sumit does not possess any requisite MBBS FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 31 of 47 PS Uttam Nagar degree and specialization in forensic science, his testimony fails to inspire the confidence of the court. No credence can be given to his testimony in absence of requisite degree and specialization. The other Dws like DW-2 Sh. Kirpal Singh, DW-3 Mrs. Manju, and DW-DW-4 Mr. Sonu Jain and 5 Ms. Baljeet Kaur deposed that illegal extraction of electricity was going on by the cluster dwellers and the boy died due to electrocution. They heard people saying who gathered at the spot, regarding death by electrocution meaning thereby, their testimony is based upon the hearsay only. None of the Dws have actually seen the actual incident which resulted into the death of the child Master Ramzan. They have all deposed to the effect that when they reached at the place where the body was lying, they heard people talking that the child has died due to electrocution. Thus, their testimony is just the heresay only, and it is inadmissible in the court of law. The Ld. APP for the State has cross examined the defense witnesses and they deposed that they never lodged any complaint with regard to the broken electricity wires. It is beyond the comprehension of the court, as what stopped these witnesses to lodge any complaint to FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 32 of 47 PS Uttam Nagar the police or to inform the police or other authorities that death has occurred due to some other reason other than drowning. DW-3 Ms. Manju deposed that accused persons approached her 5-6 days ago to give evidence in this case. DW-2, SH. Kripal Singh deposed that he used to supply RCC slab to the accused persons. The aforesaid circumstances show that the defence witnesses have given evidence at the behest of the accused persons and their testimony does not inspire any confidence to this court.
26. On the other hand, PW-2 Dr. Uday Kumar has opined emphatically on oath that the cause of the death is drowning and also "mud particles present in the trachea" and congestion in lungs on dissection. He has also deposed in the cross examination that there was shrinking of skin on palm, aspect of hand and sole of foot which was not due to electrocution. He emphatically deposed on oath that death has actually taken place due to the drowning. He has denied the suggestion that death has taken place due to electrocution.
FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 33 of 47 PS Uttam Nagar
27. In view of the aforesaid discussion, this court is of the opinion that prosecution has proved the fact that the death of boy Ramzan was due to drowning.
28. Coming now to the aspect of the negligence on the part of the accused persons which resulted into the death of Master Ramzan, PW-1 Ct. Virender has deposed that at the spot there was no indication on the pit. In the cross examination, he has deposed that no red warning tape has been affixed at the spot. PW-6 IO Inspector Tejpal in his cross examination, deposed that there was no barricading and tape and other precautionary measure at the place of incidence.
29. It would be appropriate to discuss the term negligence for deciding the present matter. Negligent act means failure to take proper care and precautions jeopardizing the lives of other persons. It means omissions to do some thing which a reasonable and prudent person guided by the consideration which ordinarily regulate human affairs would do or doing something which a FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 34 of 47 PS Uttam Nagar prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one, it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se to the court, or conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing that one ought to do can constitute negligence. It is amply clear from the above that negligent act has to be examined in the light of the facts and circumstances of a given case. If fact is incapable of being construed or seen in isolation, it must be examined in light of attendant circumstances.
30. The IO has shown the photographs of the spot, which clearly show that no caution, ribbon, tape, signboard or barricading existed at the site of the alleged incidence. Though, some photographs do show that red tape/ caution men at work existed but IO specifically FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 35 of 47 PS Uttam Nagar denied that such warning tapes were not there at the site of accident.
31. The fact of the matter remains that the accused persons were required to take all necessary precautions at the time of digging of pits, trench and laying of cables. It was enjoined upon the accused to take all necessary measures, so as to prevent any mishappening with the reasonable foresight, care and caution. There existed no warning tape, barricadding or erection of tin-walls or red ribbons etc. to prevent mishappening. Since no proper care and precautions were taken, this resulting into the death of an innocent child of 12 years namely Master Ramzan. In view of the aforesaid discussion it is crystal clear hat death has actually resulted from the gross negligence on the part of the accused persons. Accused persons has also left the place unattended in an area where people reside. Leaving a trench unattended at a residential area shows the reckless attitude of the accused persons. Further there was no tape covering the whole area. In view thereof, it is clear that accused persons were negligent towards the safety of people, and FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 36 of 47 PS Uttam Nagar negligence is proved beyond reasonable doubt.
32. Another defence taken by the Ld. counsel for the accused is that the work which was being performed by the accused persons is very much essential for the development of the society. In development works like digging of pits, laying of cables, some risks is always there, and accused persons took all the necessary safety measures. To this argument of Ld. defence counsel, this court would like to say that, of course for the development of the society, digging of pits, laying of cables and other ancillary activities are essential for the development of the society, yet, the safety measures are also required to be taken. Otherwise such development shall be antithetical to the life of the people of nation in which innocent people may risk loosing their lives for no fault on their part.
33. Another defence taken by the Ld. defense counsel is that the boy Ramzan died by falling in a "guddha", which is not the trench dug by the accused and Dws deposed that child was lying in the FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 37 of 47 PS Uttam Nagar mud, not the trench. To this arguments, this court would like to say that a mishappening took place and some body might have tried to save the child and taken the child out from the trench, and consequently the child was out of the trench but he could not be saved since the child died due to drowning,. Hence, this argument does not hold any water that the boy was not actually found in trench where the police came.
34. Ld counsel for the accused persons has also relied upon certain judgments as Kali Ram Vs. State of HP, AIR 1973 SC 2773, Nallabothu Ramulu Vs. State of AP, AIR 1974 SC 1567 and Ghurey Lal Vs. State of UP, SC Criminal Appeal no.155 of 2006. This court has highest regards for the case-laws cited on behalf of the accused, but the same has been pronounced in different context and is of no help to the accused. This court is enlightened by Hon'ble Supreme Court of India, in case entitled "Goan Real Estate & Construction Ltd & Anr. Vs. Union of India (2010) 5 SCC 388", it has been observed in para 31 "....it is well settled that an order of a court must be construed having regard to the test and contest in FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 38 of 47 PS Uttam Nagar which the same was passed. For the said purpose, the judgment of this Court is required to be read in its entirely, A judgment, it is well settled, cannot be read as a statute. Construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observation were made. Observation made in a judgment, it is trite, should not be read in isolation and out of context...."
35. Coming now to the arguments of Ld. defence counsel that no public persons have been examined by the prosecution and witnesses examined are only police officials. IO SI Tejpal had deposed that he had recorded statements of Mr. Azad, Mr. Dilkash and Mr. Jagat Singh as witnesses u/s 161 Cr.P.C., the public witness namely Mr. Jagat Singh, Mr. Dilkush and Mr. Azad have remained unserved despite several efforts, made through IO as well the DCP. They have not been examined by the prosecution.
36. It is a common knowledge that some people in Delhi who come FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 39 of 47 PS Uttam Nagar for work from the ad-joining States are floating population. They remain at particular place till the time, they have job and leave once they get work opportunity at another place. Such people do not have permanent residence in Delhi and live on rent. Hence, non- examination of the public witnesses Mr. Azad, Mr. Dilkash and Mr. Jagat Singh is not fatal to the case of the prosecution. However, there is sufficient material on record which brings out the actual reasons for the death of the child Master Ramzan.
37. Ld. Defence counsel has also argued that the testimony of PW SI Tej pal, PW Ct. Virender, PW SI Balkishan and ASI Jai Prakash should not be believed in as they are the police officials only. However, it is well settled law that the testimony of police witnesses is on equal footing with the testimony of any other witness, if their testimony is clear, coherent and reliable. To address this issue, this court would like to refer to the following judgment of the Hon'ble Supreme Court of India. In State Government of NCT of Delhi Vs. Sunil and another (2001) 1 SCC 652, it has been observed:
"In this context we may point out that there is no requirement FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 40 of 47 PS Uttam Nagar either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. Vs. S. Sardar Ali & Ors. (1983 SC 1225). Following observations of Chinnappa Reddy J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 41 of 47 PS Uttam Nagar the course of the seizure for the obvious reason that all those things are seized not separately but as part of vehicle itself. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any articles it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But, if no witness was present or if no person had agreed to affix his signature on the document, if is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. we feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post- independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 42 of 47 PS Uttam Nagar it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
38. It is abundantly clear from the aforesaid judgment that there is no rule of law which enjoins upon the Court, not to rely upon the testimony of the police officials in the absence of any independent/public witness. The only concern is to be more cautious and circumspect before placing any reliance on their testimonies. In other words, their testimony is to be subjected to careful scrutinization and assessment as compared to the testimony of any other public person. On the touchstone of these principles, I am of the considered opinion that in the instant case, there is no ground not to believe the testimonies of all the police personnels.
39. It is also argued by the Ld. Defence counsel that there are certain discrepancies in the testimony of all the prosecution witnesses. However, in my opinion, the discrepancies, if any, are FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 43 of 47 PS Uttam Nagar minor in nature and they do not hit the root of the case. The PWs have struck on their stand that no red-ribbon, barricading and other safety measures were taken by the accused to prevent any mishappening. To bolster my view, I would like to rely upon the judgment of the Hon'ble Supreme Court in the case titled as Lal Bahadur and ors Vs State of NCT of Delhi 2013 IV AD (SC)
416. Para 19 of the said judgment is relevant which is as follows:-
" So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses as pointed out by the counsel for the appellants , are concerned, we have gone through the entire evidence and found that the evidence of the witnesses can not be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses can not be ground to discard the testimony of the eye witness who is none else but FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 44 of 47 PS Uttam Nagar the widow of the one deceased . Further, relationship can not be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs Naresh & Others (2011) 4 SCC 324, the Court observed:-
" 30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence can not be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 45 of 47 PS Uttam Nagar
40. It has been argued by the Ld. Defence counsel that that police has falsely implicated the accused persons in the present case. However, there is nothing on record to show that they have lodged any police complaint or filed any complaint regarding false implication of the accused in the present case. If, it is the plea of the accused persons that they have been falsely implicated in the present case by the police, then why they had not taken any recourse in law, which was available to them. The accused persons have also failed to bring on record the motive for which the PWs would falsely implicate them. Even the accused persons failed to bring any reliable evidence which could falsify the case of prosecution.
41. The prosecution witnesses have deposed empathetically on oath that at the site of accident, where child was lying dead in the pit and there were no safety measures adopted by the accused persons to prevent any mishappening. The testimony of police witnesses and doctor witness in the present matter is quite cogent, coherent, probable, reliable and trustworthy for the offence u/s 304 FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 46 of 47 PS Uttam Nagar A IPC. Accused persons namely Mr. Pramod Girdhar and Mr. Vijay Aggarwal have admitted that they were awarded the contract of work vide work order dated Mark X and Ex.6/E. The case of the Prosecution has remained unrebutted and the prosecution has proved its case beyond reasonable doubt through examination of witnesses and medical evidence.
42. In view of the facts, circumstances and discussion held above, this court is of the opinion that the prosecution has proved its case beyond reasonable doubt and the accused persons are liable to be convicted for the offence u/s 304A IPC. Consequently, accused persons namely Mr. Pramod Kumar Girdhar and Mr. Vijay Aggarwal are convicted for the offence punishable u/s 304A IPC.
43. Let the convicts be heard on the point of quantum of sentence.
44. Copy of the judgment be given free of cost to the convicts against acknowledgment.
Announced in open court on 30.07.2018. (Deepika Singh) MM-06(West) THC, Delhi Certified that this judgment contains 47 pages and each page bears my signature.FIR no.633/03 St. Vs. Pramod Kr. Girdhar & Ors Page 47 of 47
PS Uttam Nagar