Delhi District Court
State vs Jai Bhagwan Bansal on 27 January, 2024
IN THE COURT OF MS RAJANI RANGA, CMM (NORTH-WEST),
ROHINI DISTRICT COURTS, DELHI.
JUDGMENT
CNR No.NW020126822017 Case No. : 3422/2017 FIR No. : 363/16 U/s. : 287/304A IPC P.S. : Ashok Vihar State Vs. : Jai Bhagwan Bansal
1.Date of institution of the case : 27.06.2017
2.Date of the commission of : 31.07.2016 the offence :
3.Name of the accused : Jai Bhagwan Bansal S/o Prithvi Bansal R/o H.No. 32, Ground Floor, Samrat Enclave, Pitampura, Delhi
4.Name of the complainant : Sh. Amar Singh
5.Offence complained of : 287/304-A IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquittal
8.Date of such order : 27.01.2024 FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 1 of 16 CMM/NW, Rohini Courts, Delhi
1. Vide this judgment, I shall decide the final outcome in the instant FIR no 363/2016, registered at PS: Ashok Vihar, for the alleged commission of offences punishable U/s 287/304A of The Indian Penal Code, 1860 (shall be referred to as IPC hereinafter).
PROSECUTION CASE
2. The case of the prosecution, in brief, is that on 31.07.2016, at around 3:45 pm, a PCR call was received from Ct. Poonam at PS Ashok Vihar, informing that Dr. Anand has declared one Shri Baccha Yadav as brought dead vide MLC No.218/16 in ESI Hospital, Sector 15, Rohini, Delhi, and the said information was registered vide DD no. 11PP, and was marked to SI Kalicharan for taking necessary action. On the receipt of said DD, SI Kalicharan along with Ct. Firoz Khan reached at the said Hospital and collected the said MLC. The body of the deceased was sent to the BJRM Hospital through Ct. Firoz Khan for the purpose of post mortem. SI Kalicharan went to the Factory No. A-85/3, WPIA, which was being run in the name and style of M/s Metal Fabricaters, where the deceased was working and the incident leading to the death of Sh. Baccha Yadav. However, no eye witness was found. The rukka was prepared and the instant FIR was registered as from the Post Mortem Report, the commission of the offences punishable U/s 287/304A IPC was disclosed. Investigation was carried out. The crime team and the photographer were called at the said Factory. The crime scene was photographed and the CD was prepared. Statements of eye witnesses, namely Mithlesh (Supervisor) and Shri Amar Singh (Helper) were recorded and as stated by them, the said machine was jerking since so many days before the alleged incident which was reported FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 2 of 16 CMM/NW, Rohini Courts, Delhi to the owner of the factory and was not paid any heed. Site plan was prepared at the instance of Supervisor. The machine was inspected and was sealed with the seal of 'K.C' on the spot as it was heavy. After post mortem, the body was handed over to the family members. The factory was got mechanically inspected by the Mechanical Inspector. The license to the factory and the attendance register were collected. The Mechanical Inspection Report and Post mortem Report were collected. As per the MLC report, it was opined that "The Deceased died due to haemorrhage, secondary to the injury to the heart by a sharp cutting/stabbing instrument. The injury is sufficient to cause death in ordinary course of nature". The accused, namely, Jai Bhagwan Bansal, the owner of the said factory, was arrested and subsequently was released on police bail. Upon completion of the investigation, charge-sheet was filed in the Court on 27.06.2017 against accused for the alleged commission of offences punishable U/s 287/304A.
3. Cognizance was taken and accused was summoned. The accused put in appearance in the Court. The copy of charge-sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter shall be referred to as CrPC.). Notice was framed against the accused to the alleged commission of offences punishable under Section 287 and 304A IPC to which the accused pleaded not guilty and claimed to be tried.
STATEMENT OF THE ACCUSED UNDER SECTION 294 CrPC
4. The accused did not dispute the genuineness of the statement of PW/Ct. Trilok Chand recorded under Section 161 Cr.P.C Ex. A1, DD No.11 PP, FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 3 of 16 CMM/NW, Rohini Courts, Delhi Ex.A2 (A), MLC, Ex.A3, Post Mortem Report no. 860/16, Ex.A4, Dead body identification statements of PW/Shri Raj Kumar and Ans Ex. A5 (A), FIR, Ex.A6, and Contents of register no. 19, Ex.A7. Therefore, the examination of PW who were required to prove these documents was dispensed with in terms of Section 294 CrPC.
WITNESSES EXAMINED BY THE PROSECUTION
5. During evidence, the prosecution examined Shri Amar Singh as PW1, Shri Dipesh Bansal as PW2, Shri Mithilesh as PW3, ASI Kuldeep as PW4 and Shri Dal Chand as PW-5. The PE was closed on 26.08.2023.
STATEMENT OF ACCUSED PERSON
6. The statement of accused in terms of provisions of Section 313 Cr.PC was recorded. He stated to the effect that there was no negligence on his part and he had provided all the safety measures to all the employees including deceased, however, deceased himself worked on the machine without wearing the safety measures. That the incident took place due to negligence on the part of deceased himself. The Inspector did not inspect the entire premises where the safety measures were lying on and prepare the report to falsely implicate the accused at the instance of IO. Photographs were not taken in the proper manner. That he has been falsely implicated to secure the compensation for the family of the deceased. That all the witnesses are interested witnesses. He pleaded innocence. He opted not to lead evidence in defence. DE was closed on 04.10.2023.
FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 4 of 16 CMM/NW, Rohini Courts, Delhi
7. I have heard the submissions made by the Ld. APP for the State and the Ld. Counsel for the accused. I have also perused the record and the material available on record.
FINAL SUBMISSIONS
8. It is submitted by the learned APP for the State, in crux, that the prosecution has been able to successfully prove its case that the accused only is solely responsible for the death of the deceased. It is further argued that there is sufficient material on record for sustaining the conviction of the accused u/s 287/304-A IPC.
Per Contra, the Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present case and did not cause any negligent act. It has also been submitted that the omission, if any, was not on the part of the accused and there is no material to indicate that the accused omitted to do something knowingly or negligently. Negligence in a penal statute has been held to mean gross negligence, which has neither been alleged nor has any material come. Therefore, it is submitted that no offence under Section 287 of the Indian Penal Code can be said to be made out against the Accused.
9. Before proceeding further, let take a brief account of the testimony of the witnesses examined by the Prosecution.
PROSECUTION EVIDENCE
10. As testified by Shri Mithilesh as PW-3, on 31.07.2016, he was working in the said factory as Supervisor. The deceased was working on cold machine and was provided all the safety measures i.e. Neck sheet, Chest Sheet and FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 5 of 16 CMM/NW, Rohini Courts, Delhi Culf Sheet. The deceased was working wearing all the safety equipments, however, in the second shift i.e. post lunch he took-off all the safety equipments as he was feeling hot and started working on the machine and got injured. The accused was not in Delhi but in Mount Abu. He along with other employees rushed to the deceased and found him sustaining injuries on his chest and therefore, they took him to the Nursing Home, situated in Ashok Vihar, and from there he was shifted to BJRM Hospital. He correctly identified the accused in the Court.
He was examined by ld. APP (Substitute) for State with the permission of the Court submitting that he has resiled from his statement before the police. During the said examination, he stated that his statement was recorded by the Police in the factory after the registration of the FIR. He was confronted with the statement, Mark A, which was recorded by the Police. He denied the contents of the same in totality. He denied as below:
- that the machine on which the deceased was working was giving shock for the last so many dates since before the date of incident and volunteered to state that the machine was working properly.
- that the deceased had requested the accused to get repair the said machine,
- that no safety guard/equipment was provided by the accused to the deceased or to any other employee,
- that even on the day of alleged incident, the deceased had requested the accused to provide the safety measures FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 6 of 16 CMM/NW, Rohini Courts, Delhi to him which was not considered by the accused and accused had threatened him of firing him from the job,
- that accused was working in the machine under compulsory circumstances to earn his livelihood.
- that he deliberately did not disclose the true facts as he had been won over by the accused being his employee. During his cross-examination by the ld. Counsel for the accused person, he stated that he showed the police all the safety equipments lying on the spot. He was well aware of the proper working of the machine. He provided all the safety guards to the workers. The machine was in proper working condition.
11. As testified by Shri Amar Singh as PW1, on the day of alleged incident, the deceased was working in the said factory on the said machine without wearing the safety guards of the chest. All the workers told the deceased to wear the chest guard but he did not pay any heed to their request and started working on the said machine without wearing the chest guard and while he was so working, one piece of steel sheet struck into his chest and as an impact, he died. He correctly identified the accused in the court.
He was examined by ld. APP (Substitute) for State with the permission of the Court submitting that he has resiled from his earlier statement. During the said examination, he denied that deceased and Shri Mithlesh/PW1 were working on the said machine and the machine was jerking for many days and the deceased told the accused to get it repair to which no heed was made by accused and deceased died due FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 7 of 16 CMM/NW, Rohini Courts, Delhi to defect in the machine as machine was not having any safety guard. He was confronted with his previous statement, Mark A , where the same was found so recorded.
During his cross-examination by the ld. Counsel for the accused person, he admitted that the accused was at Mount Abu on the date of the alleged incident.
12. As deposed by PW4/SI Kulbir on 31.08.2016, he arrived on the spot ie.
the said factory as he was called by IO/SI Kalicharan from whom he received Tehrir and went to the police station. He got the instant FIR registered and returned to the spot along with copy of FIR and original Tehrir. He handed over the same to the IO.
13. Shri Dal Chand as PW5 testified that he clicked the photographs of the machine installed at the said factory at the instructions of one police officials who had taken him from his photography shop to the said factory on motorcycle. He clicked 12 photographs, Ex.P1(colly), of the machine and the gate of the said factory at the instance of police officials. He also prepared a CD, Ex.P2, of the photographs clicked by him and handed over the same to the police officials.
14. As deposed by Sh. Dinesh Bansal as PW2, he deposed that he inspected the premises of the said factory and the machine, which was sealed by the IO, at the directions of Chief/Deputy Chief Inspector of the factory in the presence of the IO on 05.08.2016, at around 5:20 pm. The said machine was a cold re-rolling machine. He found that the said machine was not having any safety guards and the deceased was not provided with safety FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 8 of 16 CMM/NW, Rohini Courts, Delhi guards while working on the machine and if the same would have been provided by the employer or the machine would have the safety guards, the deceased would not have died. He prepared his Inspection Report and identified the same as Ex.PW2/A. He also filled in the Factory Inspection Form, original of which was on judicial file at Karkardooma Courts where the criminal proceedings were initiated by the Chief Inspector of factory and identified the copy of the same as Mark A(colly). During inspection, he also recorded the statement of Shri Mithlesh, Mark B, the original of the same was also lying on the judicial file at Karkardooma Courts. At the time of inspection, accused was also present in the factory. He identified the accused in the Court. He produced the Form No.4 of the factory, Ex.PW2/B, according to which, the said factory was holding the valid licence for running the same and was issued in the name of the accused who was the sole proprietor of the said factory. The said licence was got renewed from time to time as per rules.
RELEVANT LAW AND PROVISIONS NEEDS TO BE CONSIDERED
15. In the present mater, the accused has been charged for the offences punishable under sections 287 and 304A IPC.
Section 287 IPC: Whoever does, with any machinery, any act so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 9 of 16 CMM/NW, Rohini Courts, Delhi which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Causing death by negligence.
Section 32. Words referring to acts include illegal omission. In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
Section 33. 'Act', 'Omission'. - The word 'act' denotes as well a series of acts as a single act: the word 'omission' denotes as well a series of omissions as a single omission.
16. Section 287 IPC deals with negligent conduct with respect to machines and is in two parts, the first part deals with an act done with any machinery so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, whereas the second part deals with a situation where the accused knowingly or negligently omits to take such order with any machinery in his possession or under his care, as is sufficient to guard against any probable danger to human life from such machinery.
17. What comes out from Section 287 IPC is that it imposes a legal duty with respect to the use of machines i.e. to guard against probable danger with FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 10 of 16 CMM/NW, Rohini Courts, Delhi respect to use of machinery. The basic ingredients of the offence punishable under Section 287 IPC are as below:-
i. The accused did an act with a machinery that endangered or was likely to endanger, life or was likely to cause hurt or injury.
ii. That such act was done with machine. iii. That such act was done rashly and negligently. iv.That the accused had in his possession or under his care some machinery.
v. That he omitted to take such order therewith as was sufficient to guard against a probable danger to human life therefrom.
vi. That such omission was negligent or with knowledge of such probable danger.
18. In order to attract this section 287 IPC, the accused need not be the owner of the machinery, mere his possession or machinery being put under his care is sufficient to attract criminal liability under this section, if other ingredients are present. Section 287 IPC, by definition includes an omission also, if other ingredients of the offence are attracted. Further, the provisions of Section 287 is punishable irrespective of any actual hurt.
19. Section 304A of IPC punishes negligence which is culpable or gross and not negligence merely based on an error of judgment. "Criminal negligence" is the failure to exercise duty with reasonable and proper care FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 11 of 16 CMM/NW, Rohini Courts, Delhi and precaution guarding against injury to the public generally or to any individual in particular.
20. In the case of Andrews v. Director of Public Prosecutions (1937) (2) All ER 552 Lord Atkin held that a simple lack of care will constitute civil liability, and is not enough for liability under the criminal law for which a very high degree of negligence is required to be proved. This observation was quoted by the Hon'ble Supreme Court in the case of Syed Akbar v. State of Kamataka, (1980) 1 SCC 30. "Culpable rashness" lies in running the risk of doing an act with recklessness and with indifference as to the consequences (Ref. Kuldeep Singh Vs. State of H.P. S.L.P. Crl. No.1944 of 2008 decided on 16 July 2008).
21. The conditions to be fulfilled to bring home the guilt of the accused under Section 304A IPC are as follow:
(I) There must be death of a person, (II) The accused must have caused such death, and (III) Such act of the accused was rash and negligent and it did not amount to culpable homicide.
22. All these three conditions are required to be established together by the prosecution as in the absence of any one of them, the accused cannot be held guilty.
EXAMINATION OF MATERIAL INCLUDING THE EVIDENCE AVAILABLE ON RECORD FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 12 of 16 CMM/NW, Rohini Courts, Delhi
23. The facts of this case, do not fall within the first part of Section 287 IPC. To sustain the conviction of the accused in the present case, the Prosecution was required to categorically and convincingly prove beyond reasonable doubt that the accused had omitted to take such order/precaution qua said machine as was sufficient to avoid the alleged incident leading to death of the deceased.
24. As per the case of the Prosecution, Sh. Amar Singh examined as PW1 and Sh. Mithlesh examined as PW3, are the eye witness to the alleged incident. The other witnesses examined by the prosecution are formal witnesses as their role came into the picture after the occurrence of the alleged incident leading to the death of the victim. Thus, the testimony of PW1, PW2 and PW3 is important to decide the guilt or innocence of the accused person.
25. As alleged, the alleged incident leading to the death of the victim took place because of the malfunctioning of the said machine as the same was jerking and the same accelrated as the safety guards were not provided by the accused, who is the owner of the said factory.
26. The Inspection Report, Ex.PW2/A, says that neither suitable arrangements were made nor Personal Protective Equipments such as face-shield, neck- shield, aprons were provided to the workers working in the said factory to prevent accidents due to flying chips from the said machine in the process of re-rolling of steel.
27. As comes out from the deposition made by PW1 and PW3, safety guards were provided to all the workers including the deceased and the deceased FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 13 of 16 CMM/NW, Rohini Courts, Delhi inspite of request made by other workers to him did not put on the chest safety guard and got injured while working on the said machine.
28. The testimony of PW1 and PW2 coupled with the Inspection Report, Ex.PW2/A, considered as a whole indicate that Personal Safety Guards such as chest-shield, neck-shield etc. were necessary to be put on by one while operating the said machine to guard against any probable danger to human life like from flying chip from said machine in the process of re- rolling of steel as there existed the risk in operating the said machine without such safety guards. Accordingly, the accused was under legal duty as imposed by Section 287 IPC to take the necessary order i.e. to provide the said Personal Safety Guards such as chest-shield, neck-shield etc. to his employees working in his said factory to guard against any probable danger to human life from the said machinery.
29. Now, it is to be examined if the Prosecution has been able to prove beyond reasonable doubt that the accused had knowingly or negligently omitted to provide Personal Safety Guards such as chest-shield, neck-shield etc. to the deceased and that the the said machine was jerking which allegedly was reported to the accused and was not paid any heed by him to guard against the alleged incident leading to the death of victim.
30. Significantly, none of the eye witnesses examined by the prosecution, PW1 and PW3, testified that the said machine was jerking or that the requisite safety guards were not provided by the accused. The PW1 and PW3 did not support the case of the prosecution and as come out from their testimony, the victim was provided all the safety equipments like neck-sheet, face-
FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 14 of 16 CMM/NW, Rohini Courts, Delhi sheet, chest-sheet and culf-sheet which the victim was also putting-on, however, in the second shift i.e. post lunch, he took-off all the safety equipments as he was feeling hot and inspite of requesting by the other workers, he did not put-on the safety equipments and started working on the said machine and got injured as an impact of which he died. The PW1 and PW3 were also examined by the Ld. APP for the State, submitting that they have resiled from their previous statement. During said examination by Ld. APP also, nothing incriminating could be elicited from their mouth which could point out towards the guilt of accused.
31. Further, the Inspection Report, Ex.PW2/A, pertinently is silent on the point i.e. if the said machine was jerking or in any way was malfunctioning leading to the occurrence of the alleged incident.
32. In view of the above examination and discussion, it is observed that the witnesses examined by the prosecution did not support its case. From the evidence and material produced by the Prosecution on record, the Prosecution has failed to prove and establish its case beyond reasonable doubt that the accused knowingly or negligently omitted to take such order with the said machinery i.e. to provide the requisite Personal Safety Equipments to the deceased and to get the said machine repaired which was malfunctioning/jerking which was reported to him as alleged to guard against the alleged incident leading to the death of the victim and thus, the essential ingredients of Section 287/304A IPC.
33. It is cardinal principle of law that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 15 of 16 CMM/NW, Rohini Courts, Delhi the guilt of the accused, exclusively lies on the prosecution and the case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
34. As observed above, the prosecution has failed to prove its case beyond reasonable doubt that the accused person committed the offences of which he faced the trial. Considering the aforesaid examination and keeping in view the lack of evidence to substantiate negligent aspect/ingredients and non supporting of the case of the prosecution case by the eye witnesses Accordingly, accused, Jai Bhagwan Bansal, is given benefit of doubt and acquitted of the offences punishable under Sections 287 and 304A IPC of which he faced the trial.
35. Bonds accepted in terms of provision of section 437A Cr.P.C, 1973, shall remain in force for six months from today.
36. File be consigned to record room after due compliance as per rules.
Announced in the open court on 27.01.2024 (RAJANI RANGA) CMM: North-West Rohini: Delhi/27.01.2024 FIR No. 363/16 State Vs. Jai Bhagwan Bansal Page No. 16 of 16 CMM/NW, Rohini Courts, Delhi