Delhi District Court
State vs . Ashwani Kumar & Ors. on 23 June, 2018
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IN THE COURT OF SHRI DEEPAK KUMAR1
MM02: WEST: TIS HAZARI COURTS : DELHI
FIR No. 283/2008
PS: Rajouri Garden
U/s. 287/304A IPC
State vs. Ashwani Kumar & Ors.
Date of Institution of case: 29.01.2009
Date of Judgment reserved: 06.06.2018
Date on which Judgment pronounced: 23.06.2018
JUDGMENT
Unique ID no. of the case : 67656/16
Date of commission of offence : 25.05.2008
Name of complainant : Mr. Neeraj Srivastava
Name and address of accused : 1. Ashwani Kumar
S/o Sh. Surender Kumar
R/o WZ306, Palam, Delhi.
2. Sanjeev Kumar
S/o Sh. Satya Narain
R/o H.No.165, Coco Bagai,
VPO Karala, Delhi.
3. Ajay Kumar Chawla,
S/o Karam Chand
R/o A126, Hari Nagar, Delhi.
Offence complained of : 287/304A/34 IPC
Plea of accused : Pleaded not guilty
Date of order : 23.06.2018
Final order : Acquitted
FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
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BRIEF REASONS FOR DECISION
Brief facts
1. All three accused persons have been sent to face trial under Section 287/304A/34 of Indian Penal Code (hereinafter called as IPC), on the allegations that on 25.05.2008 at about 4.30 am at Swimming Pool, Sports Complex, Hari Nagar, all accused persons being responsible for the maintenance of an electric machine knowingly/negligently omitted to take such order with above mentioned machine in their possession as is sufficient to guard against probable danger to human life from such machinery. It is further alleged that all accused persons failed to take proper care of aforesaid electric machine and due to such rash or negligent act on their part one Mr.Rajesh got electrocuted which resulted in his death. On the basis of the above allegations, the present FIR No.283/2008 was registered at police station Rajouri Garden and the accused persons have been charged with the above offence.
Trial
2. After investigation, charge sheet was filed against the accused persons. Copies of charge sheet were supplied to them in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and charge U/s. 287/304A IPC was framed against accused persons on 19.05.2011, to which they pleaded not guilty and claimed trial.
FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
3/173. In support of its case, the prosecution examined eleven witnesses. Thereafter, statement of accused persons recorded under Section 313 Cr.P.C in which accused persons did not opt to lead defence evidence. Hence DE was closed.
Appreciation of evidence in the light of settled legal propositions.
4. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused and also perused the record carefully.
5. PW1 Sh. Neeraj Srivastava deposed that in the year of 2007 08, his uncle namely Rajesh got electric shock in a swimming pool at Hari Nagar, Delhi and consequently he expired. Witness claimed that he does not know anything more about the present case.
This witness was crossexamined by Ld. APP with permission of the Court. During crossexamination by Ld. APP, attention of the witness was drawn towards his signature on the complaint of witness. Witness admitted his signature at point A. The complaint is Ex. PW1/A. Witness further stated that at that time he was in the condition of shock and due to which he had signed the documents without going through its contents. PW1 stated that he does not know whether the accused Ashwani, Sanjiv and Ajay were contractor at sport complex or not. He had never seen accused persons before. At that the time of FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
4/17incident, PW1 was in his room. When he reached there he came to know about the death of his uncle. Witness identified his signature at point A on the arrest memos and personal search memos. Arrest memos of accused persons are Ex. PW1/B, Ex. PW1/C and Ex. PW1/D. Personal search memos of accused persons are Ex. PW1/E, Ex. PW1/F and Ex. PW1/G. Witness further stated that at that time he was in the condition of shock and due to which he had signed the documents without going through its contents. Witness denied the suggestion of Ld. APP that they were doing the work under the supervision of accused persons.
6. PW2 Pushottam Srivastav deposed that his brother namely Sh. Rajesh had expired in swimming pool somewhere near Rajouri Garden. PW2 stated that he is not familiar with places in Delhi and does not remember the date of death of his brother Rajesh. It was about 45 years ago. He had identified his deadbody and obtained the same after postmortem.
7. PW3 Dinesh deposed that he came to Delhi for doing work 5 6 years ago. He was in search of work and then somebody informed him that there is some work to clean the swimming pool, in DDA sports complex, Hari Nagar. Then he alongwith Rajesh (Deceased) and Neeraj went there. After making entry with the Security Guard, they entered into the sports complex. At the swimming pool, one person was standing. PW3 could not identify the said person nor could tell his name as he worked FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
5/17there only for one day. The said person asked all of them to clean the swimming pool at the daily wages of Rs.150/ per day. The swimming pool was full of water. They all started doing the cleaning work. After sometime, at about 6 am, the said person asked him to bring some food from outside the complex. Accordingly, he went outside. At about 77.30 am, he came back and then he came to know that Rajesh had already expired due to electrocution. He alongwith other person took Rajesh to DDU Hospital on a vehicle. The Doctor declared him brought dead. At the time of doing work, he alongwith other person Rajesh and Neeraj were given hand gloves and legs gloves. The water in the swimming was dusty and they had no idea that there may be some electric leakage.
8. PW4 Constable Suresh Kumar deposed that on 25.05.2008, he was posted as constable at Mobile Crime Team West District. On that day, on receipt of call, he alongwith ASI Gulshan Nagpal Incharge Crime Team went to Swimming Pool, DDA Sports Complex, Hari Nagar. There he took four photographs of the spot. The photographs are Ex P1 to P4.
9. PW5 Shri C.P. Kanojia, AE, Electrical Division 12, Sector 5, Dwarka, New Delhi deposed that in the year 2008, he was posted as JE Electrical Division 12, Sector 5, Dwarka, New Delhi. The DDA Sports Complex of Hari Nagar gave contact of the operation and maintenance to the Secretary who used to remain on duty in the complex itself. Their staff used to check the electrical installation in the swimming pool. This FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
6/17surprise checking was done by their field staff. In case of any mishandling by the operators / workers any mishap could occur. All the three accused persons namely Ashwani Kumar, Sanjay Kumar present before the court today were the same persons to whom the contract for operation of the swimming pool was awarded by the director sports. PW4 was not able to recollect the third accused. Again said, contract was awarded in the name of accused Ashwani Kumar only but other two accused persons were present before the court were associated with accused Ashwani Kumar but he does not know as to in which capacity they were associated with him. The responsibility of the maintenance of the electricity is with the accused to whom contract was awarded. The name of firm of accused Ashwani Kumar is M/s Adhi Enterprises. Police recorded his statement in the present case.
10. PW6 HC Subhash Singh deposed that on 25.05.2008, he was posted at PP MIG Flats, PS Rajouri Garden, Delhi as constable. On that day, ASI Kanhaiya Lal received DD No.9 and he along with him went to the DDU Hospital. There, IO collected MLC of deceased Rajesh Kumar and dead body of deceased Rajeseh Kumar had already been sent to mortuary. IO collected other documents and went to the spot along with complainant Neeraj Srivastava. IO recorded the statement of complainant, inspected the spot and prepared site plan. IO prepared Tehrir and same was given to PW6 for registration of FIR. Accordingly, at about 10.45 AM, he went to PS, got FIR registered and came back to the spot along FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
7/17with original rukka and copy of FIR at about 12.00 Noon. IO arrested the accused Ajay and Sanjeev and released them on bail at the spot. IO also seized one electricity motor, trolley, cable and pipe. Case property was deposited at malkhana.
On 26.05.2008, accused Anhwani Kumar was arrested at the instance of the complainant Neeraj Srivastava and he was released on bail.
The accused persons were arrested vide arrest memos already Ex. PW1/B, Ex. PW1/C and Ex. PW1/D and personal search was conducted vide memos Ex. PW6/A, Ex.PW6/B and Ex. PW6/C. Seizure memo is Ex. PW6/D. All the accused persons were correctly identified by the witness in the Court.
Witness correctly identified the case property i.e electric motor with trolley, plastic pipe, cable and starter shown in photographs already Ex. P1 to P4.
11. PW7 Satpal Singh Deputy Electrical Inspector, Labour Department posted at Labour Welfare Centre, FBlock, Karam Pura, New Delhi, Government of NCT of Delhi deposed that he inspected the electrical installation of water transfer pump fitted on a trolley with the help of 500 volts (magger) in the presence of Sh. Kanhiya Lal ASI PS Rajouri Garden on 24.c07.2008 at Malkhana PS Rajouri Garden, New Delhi and complete leakage of current was observed in the electrical FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
8/17installation of water transfer pump. Further, it was observed that the frame of the said motor with which the said accident have occurred had not been earthed. Due to this leakage of current, the metallic frame of motor as well as trolley on which the said motor was fitted became electrically alive. His detailed inspection report is Ex. PW7/A (running into two pages) bearing his signature at point A on each page.
12. PW8 Colonel Y.V.Bakshi (retired) deposed that in year 2008, he was posted as Secretary, Hari Nagar, Sports Complex, DDA. During investigation of the present case, he received notice from the police to produce documents pertaining to the contract of maintenance of swimming pool situated in the complex and he replied the same vide letter dated 19.08.2008 which is Ex.PW8/A bearing his signature at point A. The copy of enclosed documents is collectively Ex.PW8/B (running into 9 pages) bearing his signature at point A on each page. The tender for running, maintenance and operation of filtration plant and DG set of swimming pool including toddlers pool at the aforesaid complex was issued to M/s Aadi Enterprises for period 01/04/2008 to 30/09/2008. PW8 stated that as he has left the services of DDA in year 2011, he cannot produce the original documents.
13. PW9 SI Kanhaiya Lal deposed that on 25.05.2008, he was posted at PP MIG Flats, PS Rajouri Garden as ASI. On that day in morning hours, he received DD no.9, copy of which is mark X1 and he FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
9/17along with Ct. Subhash went to DDU Hospital where he collected MLC No.9148/08 of Rajesh in which patient was declared brought dead with alleged history of electrocution. Dead body of Rajesh had already been shifted to Mortuary. Neeraj Srivastav, nephew of deceased Rajesh met him at the hospital and he along with him and Ct. Subhash came to Hari Nagar Sports Complex. There he recorded statement of Neeraj and called crime team at the spot. He prepared rukka which is Ex.PW9/A and got FIR registered through Ct. Subhash. He prepared site plan Ex.PW9/B at instance of Neeraj. Crime Team inspected the spot and took photographs. He seized electric motor with trolly, starter, plastic pipe and electric cable from the spot vide seizure memo already Ex.PW6/D. He recorded statement of witnesses and deposited the case property in maalkhana. On the same day, he arrested the accused persons Sanjeev Kumar and Ajay Kumar vide arrest memo already Ex.PW1/B and Ex.PW1/C and their personal search was carried out vide memo already Ex.PW6/A and Ex.PW6/B. Accused persons were released on bail. On 26.05.2008, he got conducted PM examination of dead body of deceased Rajesh at DDU Hospital and dead body was handed over to relative of deceased. On the same day, he arrested the accused Ashwani Kumar at Hari Nagar Sports Complex vide memo already Ex.PW1/D and his personal search was carried out vide memo already Ex.PW6/C. He was released on bail. IO recorded statements of witnesses. During investigation, IO made application for electrical inspection of the case property and on 24.07.2008, Inspector Satpal Singh inspected the case property at PS Rajouri Garden. IO had also collected the documents pertaining to FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
10/17running, maintenance and operation of plant and DG set of swimming pool at Hari Nagar, Sport Complex from Secretary of Sports Complex and same are already Ex.PW8/B. IO collected PM report from DDU Hospital and electrical inspection report of case property. IO recorded statement of witnesses who participated in investigation. The photographs of the case property are already Ex.P1 to P4. IO made interrogation of Ashwani Kumar, Sanjeev Kumar and Ajay Kumar accused persons in the present case on the basis of documents and statements of the witnesses. IO had also recorded the statement of Ramesh Kumar, Security Guard in sport complex and Puroshautam Das and Dinesh, cleaner at Swimming Pool.
All the three accused persons were correctly identified by the witness in the Court. Witness also correctly identified the case property in photographs along with negatives which are already Ex.P1 to P3. The documents required to be proved have already been proved in the testimony of PW11 as Ex.PW11/A to Ex.PW11/F.
14. PW10 Dr. Purendra Pratap Singh, JR, Department of Forensic Medicine, DDU Hospital, Delhi deposed that he was deputed by MS, DDU Hospital to verify the signature and handwriting of Dr. Sumit Saini on PM report no.484/08 dated 26.05.2008. PW10 could identify signature and handwriting of Dr. Sumit Saini as he had seen her signing and writing during work. As per PM report on 26.05.2008, Dr. Sumit Saini conducted PM examination on the dead body of deceased Rajesh FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
11/17Srivastava and prepared PM report Ex.PW10/A bearing signature of Dr. Sumit Saini at point A. As per report, the cause of death is respiratory failure subsequently electrocution. All injuries were antemortem and were of same duration.
15. PW11 Sh. Harbans Khurana, Assistant, Hari Nagar Sports Complex, DDA , New Delhi deposed that he had brought the summoned record i.e original agreement and other documents pertaining to the award of work for running, maintenance and operation of filtration plant and D.G.Set of Swimming pool at Hari Nagar Sports Complex. The copy of agreement dated 01.04.2008 is Ex. PW11/A (OSR), Copy of letter dated 26.3.2008 to M/s Aadi Enterprises is Ex. PW11/B (OSR), tender application form alongwith additional terms and conditions running into seven pages are Ex. PW11/C (OSR). He had also brought the original record pertaining to award of the work for running maintenance and operation of Deck area services of Swimming pool including toddler pool at Hari Nagar Sports Complex.
The copy of agreement dated 30.03.2009 is Ex. PW11/D (OSR), Copy of letter dated 24.03.2009 to M/s Aadi Enterprises is Ex.PW11/E (OSR), tender application form alongwith additional terms and conditions running into eleven pages are Ex. PW11/F (OSR).
16. For the offence under section 304A IPC, it is essential that death must have been caused by the rash and negligent act of the accused.
FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
12/17The prosecution has to establish beyond reasonable doubt that the accused had acted rashly and negligently. In the present matter, at the very outset, it assumes significance and relevance to first discuss here that negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law.
17. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
13/17having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
18. In the present case, it appears pertinent to examine and appreciate the legal duty of accused persons to guard against the injury either to the public generally or to an individual in particular. The allegation against the accused persons are that on 25.05.2008 at about 4.30 am, accused persons being responsible for the maintenance of an electric machine at Swimming Pool, Sports Complex, Hari Nagar knowingly/ negligently omitted to take such care with above mentioned machine in their possession as sufficient to guard against probable danger to human life from such machinery and due to which one Mr.Rajesh got electrocuted and expired. However, no material of probative value was brought on record to prove if the accused persons namely Sanjeev Kumar and Ajay Kumar Chawla were responsible even remotely for the maintenance of the Swimming Pool in question. Except the fleeting remark of PW5 C.P. Kanojia, AE Electrical, there are no evidence against the said accused persons namely Sanjeev Kumar and Ajay Kumar Chawla. PW 5 stated that the contract of maintenance of electricity was awarded to the firm of accused Ashwani Kumar i.e. M/s Adhi Enterprises. He further asserted that the other two accused persons were also associated with accused Ashwani Kumar. However, he added to have no knowledge under what capacity, these two accused persons were associated with accused Ashwani. He further stated that the responsibility of the maintenance of FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
14/17the electricity was with the accused Ashwani Kumar to whom the contract was awarded.
19. After discussing the role of accused persons namely Sanjeev Kumar and Ajay Kumar Chawla, now coming to the role of accused Ashwani Kumar who was alleged to be responsible for maintenance of electricity at Swimming Pool, Sports Complex, Hari Nagar. In the present case, PW1 Neeraj srivastava and PW 3 Dinesh have been projected as eye witness by the prosecution. Their depositions were material for the just decision of the case. However, both the above witness failed to support the case of the prosecution in its material particulars. PW3 deposed to have been provided the safety gloves at the time of doing of work. PW1 categorically denied the suggestion of Ld. APP that he was working under the supervision of accused persons. During his crossexamination, PW 5 C. P Kanojia AE Electrical Division stated that he had visited thrice in a week for inspection of the swimming pool and on every occasion he found it was properly maintained.
20. Moreover, there is hardly any material on record of unimpeachable nature and irreversible character to draw conclusion that accused was even remotely responsible in not taking adequate precautionary/safety measures or being rash and negligent in taking care of his legal duty resulting into the death of the deceased. No evidence of credible nature has come on record to suggest if any naked wire was FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
15/17hanging or there was some leakage of current, or some defective or substandard electric devices or switch board panels were there which resulted into the unfortunate death of the deceased. There is hardly anything in the deposition of prosecution witnesses to show the negligent or rash act of the accused persons. Prosecution witnesses are silent on the point of precautions or safety measures which ought to have been taken care of by the accused.
21. In negligence, the test of causation not only requires that the accused was the cause in fact, but also requires that the loss or damage sustained by the claimant not too remote. It has nowhere come in the prosecution evidence as to whether the deceased received the electric shock on account of the fact that electric installation was defective or insecurely assembled or some substandard parts were used or some naked wire was hanging or there was any escape of electric current.
22. The deposition of PW7 Satpal Singh Deputy Electrical Inspector is of no avail to the case of the prosecution as he deposed to have inspected the electric installation of water transfer pump fitted on a trolley on 24.07.2008 whereas the incident is of 25.05.2008. No immediate inspection of the electric installation was carried out which resulted into the substantive reduction of quality of evidence. The immediate inspection of the electric installation before its removal could have been instrumental in bringing forth the true facts of the case. However, there is substantial gap of around two months from the date of incident to the inspection of FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
16/17the electric installation. Further, as per the deposition of PW7, electric installation was not in sealed condition during inspection which further erodes the very credibility of entire exercise and thus weakens the case of the prosecution. Moreover, the electric installation was already deposited in Malkhana and during its shifting/transfer the possibility of wire being loosened or unsecured or devices getting disheveled can not be entirely ruled out.
23. It appears also relevant to acknowledge and appreciate the fact that criminal conviction entails enigmatic and stigmatic experiences and exposures for the accused and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature. From the above discussion and findings, in my considered view accused persons deserve to be given benefit of doubt.
24. In view of the forgoing discussions, it is held that prosecution has failed to prove its case against the accused namely Ashwani Kumar, Sanjeev Kumar and Ajay Kumar Chawla beyond reasonable doubt. Accordingly, they are acquitted for the all the offences charged against them.
25. Bail bond in terms of Section 437 A Cr.P.C has already been obtained from the accused persons (since acquitted) in compliance of the judgment of the Hon'ble High Court in State Vs. Virender Yadav & FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.
17/17 Digitally signed Anr. 2014 I.A.D (Del.) 389. by DEEPAK DEEPAK KUMAR KUMAR Date: 2018.06.23 13:58:45 +0530 Announced in open Court on (DEEPAK KUMARI) 23.06.2018 (17 pages) M.M.02(West)/THC, Delhi/23.06.2018 FIR No. 283/08 PS Rajouri Garden State Vs. Ashwani Kumar & Ors.