Delhi District Court
State vs . Ram Gopal on 23 November, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE02, DISTRICT
EAST, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Ram Gopal
FIR No. 350/07
PS. Geeta Colony
U/s. 290/304A IPC
JUDGMENT
1) SI No. of the case : 10345/16
2) The date of commission of offence : 21.09.2007
3) The name of the complainant : Rajender Kumar
4) The name & parentage of accused : Ram Gopal
S/o Sh. Panna Lal
5) Offence involved : 290/304A IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 23.11.2019
Date of Institution : 23.06.2008
Judgment reserved on : 23.11.2019
Judgment announced on : 23.11.2019
THE BRIEF REASONS FOR THE JUDGMENT:
FIR No. 350/07 State Vs. Ram Gopal Page no. 1 of 18
1. The instant FIR No. 350/07 was registered at PS Geeta Colony under section 290/337 IPC on the basis of DD No.31A dated 21.09.2007 and the consequent rukka/tehrir of SI Rajender Kumar. It is mentioned in the rukka/tehrir that on the receipt of the said DD No.31A the SI with Ct. Dayaram went to the street opposite H.No.4/49 and found a broken electric pole. On inquiry local residents informed that due to a storm which came on that day a tree of MCD Primary school fell on electric line leading to the tilting the said electric pole. That the employees of BSES who came to remove the said tree proceeded to do so without providing any support to the pole and without taking any step to keep away the persons nearby. That due to negligence of the officials of BSES the pole broke down and fell on a person who was already taken to the hospital. That no eyewitness or any employee of BSES was found present at the spot. It is further mentioned in the rukka that SI had also received a telephone call from the Duty Officer that the injured admitted to the GTB Hospital upon which Ct. Dayaram was instructed to remain at the spot for its preservation and the SI went to the hospital. There one Bishamber Nath s/o Sh. Gopal Dass was found admitted and under treatment vide MLC No.B4218/07 and the doctor stated him to be not fit for statement. That no eyewitness was also found in the hospital.
2. Since, during the investigation the victim succumbed to his injuries, the chargesheet in the matter was filed for commission of the FIR No. 350/07 State Vs. Ram Gopal Page no. 2 of 18 offences punishable under section 290/304A IPC. It is stated in the chargesheet that the accused Ram Gopal was the Assistant Manager of the breakdown team of the BSES which was responsible for the repair at the site and that it is due to the negligence of the accused that the incident had taken place. After taking cognizance of the said offences the accused was summoned. The notice stating the substance of the accusation was given to the accused and he pleaded not guilty to the accusation and claimed trial.
3. In order to establish its case the prosecution has examined ten witnesses.
4. PW1 Mr. Ramesh is the brother of the deceased victim and he deposed that on 21.09.2007 a tree grown in the MCD school outside their tree fell on electric line due to rainstorm. That some officials of BSES came to remove the tree and the witness was present at that time. He stated that the officials did not instruct the members of the public to remove themselves on the spot and they also did not provide any support to the electric pole which had bent due to fall of the tree. That the pole broke down and fell on his brother Bishamber Nath upon which the officials of BSES fled from the spot and the injured was taken to the hospital by the neighbours. He stated that his brother succumbed to his injuries after remaining admitted in the hospital for 67 days. That FIR No. 350/07 State Vs. Ram Gopal Page no. 3 of 18 he had identified the body of his brother vide memo Ex.PW1/A and the same was handed over to his nephew vide Ex.PW1/B.
5. PW2 Sh. Deepak Kumar is the son of the victim. He deposed that on 21.09.2007 he was present at the spot and had witnessed a tree falling on the live electric line. He stated that the accused Ram Gopal without issuing any warning to the residents and without caring for the safety of the road users had shaken the tree due to which electric pole fell down. The pole broke away and fell on his father. The witness identified the accused Ram Gopal in the court. That he shifted his father to the hospital. That he had given his statement to the police. That seizure memo Ex.PW2/Aof the clothese of his father and the body identification and handing over memo Ex.PW2/B and Ex.PW1/B respectively had his signatures. Both these witnesses were cross examined by the Ld Defence counsel.
6. PW3 Ct. Data Ram sated that on 21.09.2007 he had accompanied IO SI Rajender to house no.4/49 Geeta Colony where an electric pole was found in a position that it was liable to fall down. That they found that the injured had already been taken to the GTB Hospital and the IO leaving him at the spot went to the hospital. That after some time the IO returned to the spot and gave rukka/teherir to him on the basis of which he got the FIR registered at PS Geeta Colony.
FIR No. 350/07 State Vs. Ram Gopal Page no. 4 of 18
7. PW4 Ct Jai Prakash stated that on 27.09.2007 on receipt of DD NO.18A he alongwith SI Rajender went to Saroj Hospital and took the body of the deceased victim to the mortuary, Subzi Mandi. That the clothes of the body were seized vide memo Ex.PW2/A by the IO. That on 13.11.2007 he went to the office of BSES for obtaining the list of breakdown teams present at the spot at the time of the incident. That he had provided his information to the BSES and returned.
8. PW5 Sh. Jogender Singh is a neighbour of the deceased. He stated that on 21.09.2007 a tree due to heavy rainstorm fell on the electric line. That he was having dinner when he went to the spot after hearing noises. He found the victim Bishamber Nath who had sustained injuries from the electric pole was lying down. That he alongwith 3 friends had shifted the victim to the Goyal Nursing Home, Krishna Nagar in a borrowed car and from there to the GTB Hospital. That upon being informed by the staff of the hospital regarding non availability of required facility, they took the injured to a hospital in Rohini in a private ambulance and then they returned to their house. He stated that he was not present at the time of the incident. The witness was cross examined by the Ld APP for the State on the ground that he was resiling from his earlier statement given to the police. In such cross examination he stated that no official of BSES was there at the spot in his presence. He could not tell anything about the manner in which the pole had fallen.
FIR No. 350/07 State Vs. Ram Gopal Page no. 5 of 18
9. PW6 Mr. Subhash is the telephone operator of the BSES office and he stated that on 06.10.2007 on the asking of the IO he had provided the record regarding relevant entries of the complaint register which was seized vide memo Ax.PW6/A. He identified the handwriting of the author of the record namely Chhavi Lal. The witness was cross examined by the Ld Defence counsel.
10. PW7 Mr. Sanjeev Jain is the Assistant Personal Officer, BSES and he denied not providing any document to the police and he stated that the signatures on the memo mark PW7/A were not his. The witness was cross examined by the Ld APP but nothing incriminating to the accused came in such cross examination.
11. PW8 Mr. Mukesh Kumar is the Line Man, BSES and he stated that on 21.09.2007 on receipt of complaint no.196182 about disruption in the supply of the electricity he went at about 7.25 PM to Kanchana Apartment, DESU Office and saw a tree branch falling on electric lines and breaking one of the lines. Thereafter he narrated the situation to the telephone operator who might have further informed the breakdown team. This witness was cross examined by the Ld APP on the ground that he was not disclosing the complete facts. In such cross examination he denied going to the spot on 21.09.2007. He denied that he had concluded his inability to maintain the line on his own or that he FIR No. 350/07 State Vs. Ram Gopal Page no. 6 of 18 had informed the accused Ram Gopal. He denied that the accused went with the breakdown team to the spot. He further denied the accused committing any act or making any omission leading to the incident at the spot.
12. PW9 Mr. Murari Lal stated that on 21.09.2007 he alongwith Vinod (Line Man) and Moti Lal (Mazdoor) on asking of their superior Sh. Ram Gopal (accused in the present case and correctly identified by the witness) had gone to attend a complaint to Geeta Colony. Sh. Ram Gopal remained in the office. That he did not remember the specific location of the spot where they had gone for the redressal of the complaint. Upon reaching the location they found a branch of a tree in contact with the electric line as a result of which the electric supply was disrupted. Due to disruption the local residents gathered at the spot and they gheraoed them. That they asked them to keep away due to fear of electric shock. That the local residents tried to remove the branch of the tree despite their warnings and opposition and they ultimately moved the said branch. He stated that due to their attempt in moving the branch the concrete electric pole fell down and one of the aged local residents who was present there came in contact with an iron angle which is used to support the electric line on the pole. That he sustained injuries due to the fall of the iron angle. He stated that his persons did not sustain any electric shock as the supply was not there in the line. He stated that the FIR No. 350/07 State Vs. Ram Gopal Page no. 7 of 18 local crowd which gathered at the spot increased in number and the family members of the injured also gathered at the spot and took the injured to the hospital. That after some time police arrived at the spot.
The witness was cross examined by the Ld APP for State on the ground that the witness was not disclosing the correct and complete facts. In such cross examination the statement Mark PW9/A (statement u/s 161 Cr.PC) was read over to the witness but he stated that he did ont give such statement to the police. He denied that the accused had accompanied them to the spot. He further denied that the accused who was present at the spot had not exercised diligence and caution as he did not warn the locals gathered at the spot to remain at a distance from the pole. He further denied that the accused knowing the requirement of a support to the pole before removing the branch did not arrange any such support. He further denied that the accused who was present at the spot was aware that the electric wires could have fallen on someone during the process of removal of branch. He further denied that the police recorded his statement on 01.12.2007. He further denied that he was not deposing correct facts as he had worked under the accused.
13. PW10 SI Rajender Kumar stated that on 21.09.2007 he received DD no.31A Ex.PW10/A regarding breaking of an electric pole. That upon receipt of the same he alongwith Ct. Daya Ram went to the spot i.e. 4/49, Geeta Colony. That they found an electric pole damaged FIR No. 350/07 State Vs. Ram Gopal Page no. 8 of 18 and fallen on the ground. The local residents present at the spot informed that in the process of removing the branch of a tree which had fallen on the electric line due to heavy wind, the BSES officials got the pole broken and a person had got injured on head due to the said pole. He stated that they were informed that the BSES officials had escaped from the spot. He was informed that the injured had been taken to the GTB hospital. That he went to the hospital leaving Ct. Daya Ram at the spot and there he found Bishamber Nath S/o Sh. Gopal Dass under treatment vide MLC No.4218/07. That he was not fit for statement. He stated that he obtained the MLC but no eyewitness was found at the spot or at the hospital. That thereafter he got the FIR registered through Ct. Daya Ram by making an endorsement Ex.PW10/B on the copy of DD entry itself. That in the meanwhile the son and brother of Bishamber Nath namely Sh. Deepak and Sh. Ramesh reached the spot and claimed themselves to the eyewitnesses. They told him that BSES officials while removing the branch from the pole did not ask the local residents to remain away from the spot despite the fact that the pole was already tilted. That they could not provide any support to the already tilted pole. That while the branch was being removed from the electric line, the wires got entangled in the branch and the pole fell down on Bishamber. That his neighbours had taken him to the hospital. The son and brother of the injured told that they had gone to arrange money for the treatment of Bishamber and had returned to the spot after FIR No. 350/07 State Vs. Ram Gopal Page no. 9 of 18 making such arrangements. He stated that he prepared the site plan Ex.PW10/C at the instance of Deepak. He further stated that on the next day he visited the hospital but the injured was still not fit for statement. On that day he recorded the statements of two witnesses who were the neighbours of the injured and who had brought him to the hospital. On the subsequent day as well the injured was not fit for statement. That thereafter the injured was taken to Saroj Hospital for treatment by his family and there during the treatment he succumbed to his injuries on 27.09.2007. He stated that upon receiving the information of demise he went to the hospital, got the body preserved for the purpose of postmortem. That he also seized the clothes blood stained which the deceased was wearing at the time of the incident vide seizure memo already Ex.PW2/A. That he then got the postmortem conducted in the mortuary, Sabzi Mandi and thereafter he got the body haded over to the relatives of the deceased. He further stated that during further investigation he went to the Consumer Complaint Center of the BSES and obtained the copy of the complaint which was got registered on 21.09.2007 vide seizure memo Ex.PW6/A. That he then went to the BSES office at 18 Block and questioned Mukesh who informed that after inspecting the spot he had informed the position to the Breakdown team which was headed by the accused Ram Gopal. He then obtained the list Ex.PW10/D of the Breakdown Team of the BSES. That he called all the four members (Assistant Manager Ram Gopal, Jr. Line Man Vinod and FIR No. 350/07 State Vs. Ram Gopal Page no. 10 of 18 two workers Murari and Moti Lal) of the Team to the PS. Vinod, Murari and Moti Lal disclosed themselves to be working under Ram Gopal and they further told that they had cautioned Ram Gopal of the possibility of falling down of the pole but he did not pay any attention to it. That due to the negligence of the accused Ram Gopal the incident had taken place. Thereafter the accused was arrested and personally searched vide memos Ex.PW10/E and Ex.PW10/F and subsequently released on bail as the offences were bailable. That on 26.03.2008 accused Ram Gopal provided the copy of the document tittled procedure/safety guidelines of BSES and he seized the same vide seizure memo Ex.PW10/G. The witness was cross examined by the Ld Defence counsel in detail.
14. It is relevant to mention that on 03.10.2019 the accused in presence of his counsel has made a statement admitting the factum of preparation of MLC No.4218/07 Ex.PX1 and of the death summary and the postmortem Ex.PX2 and Ex.PX3 respectively. He had also stated that he shall not be disputing the preparation of these documents during the trial.
15. Thereafter the statement of the accused under section 313 Cr.P.C was recorded wherein the incriminating evidence surfaced against the accused was put to him. The accused denied its veracity and correctness. The accused opted not to lead any defence evidence.
FIR No. 350/07 State Vs. Ram Gopal Page no. 11 of 18
16. Thereafter the court has proceeded to hear the respective arguments of the Ld. APP and of the Ld. Counsel of the accused. I have heard the arguments and have also perused the record.
17. It has been argued by the Ld APP for State that in view of the testimony of PW1 Sh. Ramesh, PW2 Sh. Deepak Kumar, of PW5 Jogender Singh and of the police witnesses as well as in light of the fact that the accused was admittedly the Assistant Manager of the breakdown team of BSES, it has been established by the prosecution that he was responsible for the safe maintenance of the electric line. That it has been established by the prosecution that the accused without taking sufficient precautions had permitted the repair of the electric line and he did not take care to remove the local persons from the sphere of danger during such repair. That it has been also proved that since the accused did not provide necessary support to the electric pole before carrying out the repair leading to the fatal injuries to the victim. It is stated that the prosecution has successfully established the guilt of the accused and as such the accused deserves to be convicted.
18. On the other hand, the learned defence counsel has prayed for acquittal of the accused stating that none of the witness of the prosecution has been able to establish before the court that the accused in any manner was responsible for the unfortunate incident leading to FIR No. 350/07 State Vs. Ram Gopal Page no. 12 of 18 the demise of the victim. That a presumption of the guilt of the accused cannot be drawn merely for the fact that he was the Assistant Manager of the breakdown team. It is submitted that the witnesses i.e. the brother and the son of the deceased victim have been planted by the police and they did not witness the incident and as such the accused cannot be convicted on the basis of their testimonies which otherwise are also insufficient to lead to the conclusion of guilt of the accused.
19. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused but, the golden rule of the criminal jurisprudence is that the case of the prosecution has to stand on its own legs.
20. Section 290 IPC provides for punishment for committing a public nuisance in any case not otherwise punishable under IPC. Section 268 IPC defines public nuisance and it reads as follows:
Public Nuisance - A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is FIR No. 350/07 State Vs. Ram Gopal Page no. 13 of 18 not excused on the ground that it causes some convenience or advantage.
21. Section 304A IPC reads as follows:
Causing death by negligence - 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.
22. In the present case, it is alleged against the accused Ram Gopal that he being the Assistant Manager of the breakdown team of BSES did not take sufficient caution and did not provide safety measure and support against electric pole which had fallen on victim causing fatal injuries to him. The only witness of the prosecution who has deposed regarding the presence of the accused at the spot is PW2 Deepak Kumar, the son of the deceased victim. As per the facts of the case, the events which led to the unfortunate incident are as follows:
A heavy rainstorm occurred on 21.09.2007 due to which a tree grown in the MCD Primacy school, Geeta Colony fell on the electric line passing nearby. The concerned electricity distribution company i.e. the BSES was called. It has been alleged that the accused was the Assistant Manager of the breakdown team and he did not take sufficient FIR No. 350/07 State Vs. Ram Gopal Page no. 14 of 18 caution while removing the said tree and maintaining the electric supply as a result of which one of the poles which had already been tilted due to the weight of the tree fell over the victim causing fatal injuries to him.
23. The prosecution has sought to base its case on the testimony of PW1 Sh. Ramesh and of PW2 Deepak Kumar respectively the brother and son of deceased victim. They both have claimed themselves to be eyewitness of the incident. PW1 has not mentioned about the accused in his evidence. He has although stated the officials of BSES had arrived at the spot in his presence in order to remove the tree and during such removal they did not direct the public persons to keep themselves away nor had they provided support to the electric pole. That the pole fell on the victim and the officials of BSES fled away from the spot. PW2 Deepak Kumar has stated that he had witnessed the tree falling on the electricity line. That the accused without issuing any warning and without caring the safety of the road users had shaken the tree leading to the fall of the electric pole and fatal injuries to the victim. He had stated that he took his father to the hospital.
24. The present proceedings have emanated from the rukka/tehrir Ex.PW10/B which is the first record of the incident as made by SI Rajender Kumar. He had stated therein that upon receiving DD no.31A he reached the spot and found a broken electric pole. He was informed FIR No. 350/07 State Vs. Ram Gopal Page no. 15 of 18 by the locals that the BSES workers had carried the repair works without cautioning the passerby and without providing any support to the pole and a person had sustained injuries due to fall of the pole on him. He had stated that no eyewitness was found at the spot. That upon being informed that the injured had been taken to the hospital he went to the hospital but there also no eyewitness was found. The injured was unfit for statement. The prosecution has also examined PW5 Sh. Jogender Singh, a neighbour of the deceased victim. The said witness inter alia had stated that he alongwith his three friends had taken the victim to Goyal Nursing Home and from there to the GTB Hospital in a car borrowed from neighbourhood. The MLC Ex.PX1 does not mention the name any relative or friend of the victim. When the contents of the rukka/tehrir, in which presence of no eyewitness at the spot or in the hospital is recorded and the contents of MLC, are considered with the testimony of PW5, the presence of both the PW1 and PW2 at the spot becomes suspicious. There has been furnished no explanation by these witnesses as to when they were present at the spot why they did not call the PCR. It has not been explained as to why either of these witnesses did not accompany take the injured to the hospital. In view of the same the court is of a view that it is not prudential to rely on the testimony of the said witnesses. Apart from them no witness or document mentions the presence of the accused at the spot.
FIR No. 350/07 State Vs. Ram Gopal Page no. 16 of 18
25. The next question which warrants consideration is the fact that since the accused was the Assistant Manager of the breakdown team, whether he was in any manner responsible for the fall of the electric pole.
26. As per the case of the prosecution the electric pole was already tilted/bent by the time the BSES officials had arrived at the spot. It happened on account of heavy rainstorm which came earlier that day. There has been placed no material before this court in the form of the opinion of any person expert on the issue of maintenance of electric line and electric poles from which the court could reasonably assume that a particular action was required to be taken by the accused or by the officials of BSES which they failed to take and as such had conducted themselves negligently or rashly. The only thing produced before the court is the allegations to the effect that the accused being the Assistant Manager of the breakdown team did not warn the passerby about the repair work nor did provide any support to the electric pole. In the opinion of this court the said allegations without any corroborating material is not sufficient to convict the accused. Even the electric pole which allegedly had fallen on the victim has not been produced before the court and it apparently has not even been seized. In such circumstances, this court could not find any material in the nature of any act or illegal omission on the part of the accused leading to the incident FIR No. 350/07 State Vs. Ram Gopal Page no. 17 of 18 in question. The prosecution has failed to prove the allegations against the accused.
27. In view of the aforesaid discussion, this court is of a conclusion that the accused is entitled to acquittal as the prosecution has failed to prove his guilt beyond reasonable doubt. Hence, accused Ram Gopal is acquitted for the offences punishable u/s 290/304A IPC.
Ordered accordingly.
Digitally signed JITENDRA by JITENDRA
PRATAP SINGH
PRATAP Date:
SINGH 2019.11.24
16:33:59 +0530
Announced in open court (JITENDRA PRATAP SINGH)
on 23rd day of November, 2019 MM2/East/KKD Courts
Delhi
FIR No. 350/07 State Vs. Ram Gopal Page no. 18 of 18