Delhi District Court
State vs . Naresh Walecha on 12 March, 2013
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN
MAGISTRATE04, SOUTH DISTRICT, NEW DELHI
STATE VS. Naresh Walecha
FIR NO: 362/99
P. S. Sriniwas Puri
U/s 304 A IPC
Unique ID no. 02403R0028432000
JUDGMENT
Sl. No. of the case and : 298/2 (18.7.2000) Date of its institution : 18.7.2000 Name of the complainant : ASI Murari Lal Date of Commission of offence : 11.7.1999 Name of the accused : Sh. Naresh Walecha Offence complained of : Section 304 A IPC Plea of accused : Not Guilty Case reserved for orders : 4.2.2013 Final Order : ACQUITTED Date of Judgment : 12.3.2013 State Vs. Naresh Walecha 1/11 FIR no. 362/99 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Naresh Walecha pursuant to a charge sheet filed by the Police Station Sriniwas Puri under section 304 A Indian Penal Code, 1860 (for short IPC) subsequent to the investigation carried out by them in FIR no. 362/99.
2. The prosecution case against the accused is this: On 11.7.1999 at about 12.30 am at shop no. 17, Siddharth Extention, New Delhi, accused left a joint of electric wire naked of the lead of fridge cum freezer installed outside the shop due to which one Raj Kumar got electric shock and expired, thus committed an offence u/s 304 A IPC.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused and the accused was indicted on charges under section 304 A IPC. He pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, twelve witnesses were examined. PW 1 Sh. B.L. Talweja deposed that on 13.7.99, he was posted as Assistant Electrical Inspector at Labour Welfare Centre, Giri Nagar, Kalkaji. ASI Murari Lal had informed him regarding electrocution of Raj Kumar in FIR no.362/99 and requested him to inspect site of accident. He went alongwith him at DDA shopping centre, Siddharth Extension shop no. 17. During investigation in the presence of Murari Lal and Naresh Walecha, it was reported that on 10.7.99 Sh. Raj Kumar who happened to come in contact with electrical supply lead of fridge cum freezer installed at abovesaid address. At the time of inspection, it was observed that the site of accused is shop no. 17, DDA shopping centre, Siddharth Extention. A fridge cum freezer was found installed outside the shop and supply (electric) to this freezer was taken from 15 ampere power socket installed inside shutter of the shop and number of naked and accessible joints were observed in the electric supply leads of the fridge cum freezer. It was further observed that no State Vs. Naresh Walecha 2/11 FIR no. 362/99 earth conductor was provided to the socket as such the freezer had not been found earthed. The installation under the control of owner/occupier had not been maintained in safe condition in the following respect:
"A number of naked and live joints were observed in the electric supply lead of the fridge cum freezer. The frame of the freezer had not been found earthed which contravenes the rule 61 (3) of the Indian Electricity Rules, 1956". He also proved his report as Ex.PW1/A. He was cross examined by Ld. Counsel for the accused.
5. PW 2 is Sh. Satpal Chanderbhan who proved the dead body identification statement as Ex.PW2/A. He was cross examined by Ld. Counsel for the accused. He was cross examined by Ld. Counsel for the accused.
6. PW 3 is Dr. T Millo who proved the post mortem report of the deceased as Ex.PW3/A. He was cross examined by Ld. Counsel for the accused. He was cross examined by Ld. Counsel for the accused.
7. PW 4 is Devender who took the photographs of the place of incident and proved them as Ex.PW4/P1 to P10. He was cross examined by Ld. Counsel for the accused. He was cross examined by Ld. Counsel for the accused.
8. PW 5 Sh. Dinesh Kumar Walecha proved the dead body identification statement as Ex.PW5/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
9. PW 6 Ct. Kaptan Singh, PW 7 Ct. Om Prakash and PW 10 Ct. Ram Dhari proved their involvement in the investigation. He was cross examined by Ld. Counsel for the accused.
10. PW 8 HC Surender Kumar proved the FIR as Ex.PW8/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
11. PW 9 Ct. Chander Shekhar proved the DD no. 32 as Mark A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
State Vs. Naresh Walecha 3/11 FIR no. 362/99
12. PW 11 Bhuvesh Kumar proved the MLC of injured as Ex.PW11/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
13. PW 12 Retd. SI Murari Lal proved his i nvestigation in the present case. His testimony is to the effect that on 11.7.99 on receiving of DD no.32 PP Sun Light Colony, same is Mark A, he alongwith Ct. Ramdhari reached at AIIMS hospital. On 11.7.99, he received DD no.32, PS Shriniwas Puri in which it was conveyed that Naresh Valecha had taken his servant to AIIMS hospital. He alongwith Ct. Ramdhari on receipt of this information went to AIIMS hospital and sent Ct. Kaptan Singh on the spot of incident. On reaching the hospital he obtained MLC no. 5800 at about 10.45 pm from AIIMS hospital. In the MLC, it was mentioned that the injured was declared dead. Thereafter, he prepared rukka Ex.PW12/A and sent Ct. Ramdhari to the police station for registration of FIR and preserved the dead body. Thereafter he went to the spot of incident which was Shop no.17, Siddhartha Extension. He prepared the site plan Ex.PW12/B of the incident and got the site inspected from an inspector from DESU. He seized an electric wire from the spot of incident which was cut from both the sides vide seizure memo already Ex.PW7/A. It was black in colour and its length was 11 ½ feet. He also seized the iron lock bearing no. AA88 from the shop in which the incident occurred at the time when the deceased was trying to close the shop and put a lock in it when he came into contact with the live electric wire. He attempted to trace the accused but in vain and then came back to the police station. On the next day i.e 12.7.99 he went to the hospital again and recorded the statement of the relative of the deceased and handed over the dead body to them vide handing over memo Ex.PW2/A. Thereafter he made efforts to trace the accused Naresh Walecha but could not succeed and later on investigation was assigned to Naresh Solanki. He was cross examined by Ld. Counsel for the accused.
14. The statement of the accused under Section 313 of the Criminal Procedure State Vs. Naresh Walecha 4/11 FIR no. 362/99 Code, 1973 (for short, `the Code') was recorded. He asserted that he was innocent and had been falsely implicated. He denied having any relation with the shop in question where the deceased is allegedly electrocuted. Further, he chose to lead defence evidence.
15. DW 1 is Sh. Inderjeet Walecha who deposed that he is working as a Chartered Accountant. He is running his office at 8, Sanjay Market, R Block, GK, Part I, New Delhi. The shop of the accused, who is his brother, is one shop away from his office. The visiting card of his brother is Ex.DW1/C. Accused Naresh Walecha is his real brother. He is in the business of property dealing since the year 1994 at 6, Sanjay Market, R Block, Greater Kailash, PartI, New Delhi48. He is running the property business in the name and style of M/s Jai Property Dealers. Accused Naresh Walecha is the sole proprietor of M/s Jai Property Dealers. A telephone was installed on 28.2.1995. The copy of the installation of the telephone is Ex.DW1/A (OSR). The latest bills pertaining to July, 2011 in the name of M/s Jai Property Dealers is Ex.DW1/B. He is paying income tax since the year 1995 in respect of the said property dealer business running at the abovesaid shop. Acknowledgment of income tax receipt is Mark A (colly) running in four pages. He has only been doing property business and nothing beyond this. He was cross examined by Ld. APP for State.
16. I have heard the learned Assistant Public Prosecutor and the learned Advocate for the accused at length and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt.
17. Per contra, learned defence counsel has canvassed that prosecution has not been able to prove satisfactorily that accused was the owner/occupier of the shop in question in which the deceased was working and suffered electrical shock. It is also urged that there are discrepancies between the statement of electrical inspection State Vs. Naresh Walecha 5/11 FIR no. 362/99 before the Court and in his written report Ex.PW1/A. Lastly, it is submitted that investigating officer did not care to seize the shop in question as soon as the incident happened and the inspection was also conducted almost three days after the date of the alleged incident, which induces the possibility of tampering with the material found at the place of occurrence. The accused deserves acquittal in this case.
18. Accused has been indicted for committing offence u/s 304 A IPC i.e for causing death by rash or negligent act not amounting to culpable homicide. The prosecution's story is that the accused was the owner/occupier of the shop no. 17, Siddharth Extension, New Delhi and on 11.7.99 at about 12.30 am, he left the joint of electric wire naked of the lead of fridge/freezer that was installed outside the shop due to which one Raj Kumar got electric shock and expired. It is desirable to highlight that accused has not disavowed the death of the victim Raj Kumar. The same is also proved from his MLC Ex. PW11/A.
19. Now in order to prove the guilt of the accused, prosecution was bound to prove that accused was the owner/occupier of the said shop and that the alleged rash or negligent act of the accused had culminated into death of deceased Raj Kumar or in other words, the alleged act of the accused had directly resulted into the victim Raj Kumar getting electric shock leading to his death.
20. Insofar as the first aspect of the case is concerned, prosecution has relied upon the testimony of brother of the deceased i.e PW 2 Satpal and the testimony of PW 12 SI Murari Lal. PW 2 Satpal had deposed that on 10.7.99, his brother went for his duty in shop no. 17, Siddharth Extension but did not return. Thereafter, he came to know through one Dinesh that his brother was electrocuted and has been taken to AIIMS. Thereafter, police informed him that his brother Raj Kumar had died in AIIMS following which he went there and identified the dead body which was handed over to him on 11.7.99 vide memo Ex.PW2/A. In the cross examination, he stated that the deceased State Vs. Naresh Walecha 6/11 FIR no. 362/99 used to stay with him in Delhi. He further stated that the owner of the said shop was one Mr. Ahuja previously but when his brother died, Naresh Walecha was the owner of the said shop. He also stated that he came to know through his brother that Naresh had purchased the said property. He also gave the statement that he cannot contradict that the said shop was purchased by one Ram Lal and not by Naresh. He stated to have never visited the house of Naresh. The testimony of PW 2 Satpal cannot be relied upon to arrive at the conclusion that accused Naresh was the owner/occupier of the said shop. He has deposed the abovesaid fact on the statement of his deceased brother. He admitted that earlier one Mr. Ahuja was the owner of the said shop. He had also stated that his brother had worked for 78 years with the previous owner Mr. Ahuja. His testimony seems to be ambiguous insofar as the question of proving the ownership/occupancy of the said shop.
21. Now adverting to the testimony of PW 12 SI Murari Lal who deposed that on 11.7.99 on receiving DD no. 32, he alongwith Ct. Ramdhari reached at AIIMS hospital. He came to know about the incident in question from accused Naresh Walecha who accompanied the deceased to AIIMS hospital. Regarding the ownership of the said shop, the testimony of the investigating officer is as follows;
"....I have inquired about the ownership of the shop in question but I was unable to ascertain who is the real owner of this shop. I have obtained the copy of the electricity bill from the house of accused Naresh Walecha from some lady who was found at the house of Naresh Walecha. I have not recorded the statement of that lady. I am aware that electricity bill Mark B does not carry the name of Naresh Walecha. I had investigated about the person whose name was mentioned in the electricity bill but I could not find him. I have not given him any notice u/s 160 Cr.PC or publication or filed any application before the Court for the same. I have not written any letter or issued any notice to DESU about the fact that who is the registered consumer of that electricity bill or about the present address of the person whose State Vs. Naresh Walecha 7/11 FIR no. 362/99 name was mentioned in the bill. It is correct that I have not written any letter/issued any notice to Sub Registrar to inquire about the real owner of this shop. It is correct that I have not investigated the fact that the wiring in the shop was done by previous owner or its current owner at that time...."
22. From the abovesaid testimony of the investigating officer, it is amply clear that he had acted in a callous and perfunctory manner by not properly carrying out the investigation regarding the ownership of the said shop. Although, he has placed on record one electricity bill i.e Mark B in respect of the said shop but the said bill bears the name of one Santosh and R. Ahuja. He has claimed to have obtained the said bill from some lady who was found at the house of accused Naresh Walecha but he did not record the statement of the said lady. He also did not bother to verify the ownership of the said shop from the SubRegistrar's office nor did he inquire from the neighbourers of the said shop. There is no documentary evidence on record to show that accused Naresh Walecha was the owner/occupier of the said shop. In order to fix criminal liability upon the accused, it was incumbent upon the prosecution to have proved satisfactorily that accused Naresh was at the helm of affairs of the said shop and was responsible for the maintenance/care of the said shop. Accused has advanced a defence that he had no concern with the said shop and he was never the owner/occupier of the said shop. No other prosecution witness has been examined or even cited who could depose about the ownership/occupancy of the said shop. In the absence of any oral or documentary evidence in respect of the ownership/occupancy of the said shop, it is very difficult to connect the accused with the alleged rash or negligent act.
23. Another aspect that needs discussion is the inspection report Ex.PW1/A submitted by PW 1 Sh. B.L. Talweja, Assistant Electrical Inspector in respect of place of the occurrence. It is his observation in the report that installation of a fridge cum State Vs. Naresh Walecha 8/11 FIR no. 362/99 freezer under the control of owner/occupier of the said shop has not been maintained in the safe condition and the owner/occupier has contravened rule 61 (3) of the Indian Electricity Rules, 1956. This report has a direct bearing on the owner/occupier of the said shop but since it is clear from the discussion hereinabove that prosecution has not been able to satisfactorily prove that the accused was not the owner/occupier of the said shop, there is no need to embark upon the inspection report in detail. However, I deem it fit to bring on record the circumstances in which the said inspection was got done by the investigating officer in as much as the said inspection also failed to inspire confidence of this Court.
24. It is the testimony of PW 1 Assistant Electrical Inspector that on 13.7.1999, he was posted as Assistant Electrical Inspector at Labour Welfare Centre, Kalkaji and he inspected the site of the accident on the request of the investigating officer where it was observed that a fridge/freezer was found installed outside the shop and supply (electric) to this freezer was taken from 15 ampere power socket installed inside shutter of the shop and number of naked and accessible joints were observed in the electric supply leads of the freeze cum freezer. It was also observed that no earth conductor was provided to the socket. In his report Ex.PW1/A also, it was observed by him that number of naked and accessible joints were observed in the electric supply leading to the fridge cum freezer. However, in his cross examination by Ld. Counsel for the accused, he changed his version by stating that the wire found at the spot was connected to the freezer had the joint at only two places and there was electric tape at both the places. This statement of PW 1 in his cross examination is contrary to his report wherein he had stated that there were naked joints in the said wire. Furthermore, he has stated that the whole socket and the board had been removed from the spot before he came to the shop for inspection. This fact brings in the possibility of tampering with the materials found on the place of occurrence.
State Vs. Naresh Walecha 9/11 FIR no. 362/99
25. The testimony of investigating officer is also ambiguous insofar as the seizure of the said shop is concerned. The incident took place on the night of 10.7.99 whereas the Assistant Electrical Inspector came to inspect the shop on 13.7.99 in the morning i.e more than two days after the date of the incident. It seems from the testimony of PW 12 SI Murari Lal, investigating officer that he did not seize the said shop so as to rule out any possibility of tampering with the installation material on the spot. In his testimony, he has stated that on 13.7.99, when they reached the spot, the shop was lying open. Then very next moment, he said that the shop was closed at that time and he called the father of the accused Naresh Walecha to open the shop who then came and opened the said shop. He has also not recorded the statement of his father in this regard.
26. PW 4 Devender is the photographer who photographed the place of the incident and has stated that when he went to take the photographs of the site, he found the plate of the electrical switches in a completely broken condition and the other half of the plate was still hanging on the wall. He has also noticed that electrical tape was there in the wire leading to the freeze/freezer. It is clear from the discussion in the preceding paragraph and from the testimony of the photographer and from the photographs on record that the investigating officer was not cautious and circumspect enough to seize the said shop before the same was inspected by the electrical inspector. Ideally, as soon as he came to know about the accident in question and reached the spot, he ought to have seized the said shop and called the electrical inspector as expeditiously as possible to inspect the said shop. Since, no such course has been adopted by the investigating officer, therefore, possibility of tampering with the place of incident cannot be ruled out.
27. In the backdrop of the above discussion, the factual position that has come on record is that the prosecution has miserably failed to prove its case against the State Vs. Naresh Walecha 10/11 FIR no. 362/99 accused. The callous and perfunctory approach of the investigating officer in conducting the investigation proceedings is writ large in the present case. Prosecution has not been able to prove its case beyond the shadow of reasonable doubt that the accused is the owner/occupier of the said shop and was responsible for the installation and maintenance of fridge cum freezer which was instrumental for the electric shock to the deceased leading to his death. All this coupled with the fact that the said shop was inspected almost two days after the date of the alleged incident without the said shop being seized or cordoned off by the investigating officer, it would be very difficult to convict the accused for the alleged rash or negligent act. Rest of the testimonies and documents are formal which alone cannot warrant conviction of the accused. Resultantly, accused Naresh Walecha stands acquitted for the offence u/s 304 A IPC. He is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 12.3.2013 Metropolitan Magistrate04,
South, New Delhi
State Vs. Naresh Walecha 11/11 FIR no. 362/99