Delhi District Court
Ignou Road vs State Of Delhi on 15 January, 2015
Page No. -1- FIR No. 49/10 U/s. 304A / 337 IPC PS Neb Sarai Date : 15.01.2015 ORDER
Present : Ld. APP for State ld counsel for complainant with complainant.
Vide this order, I shall decide whether case for summoning of the proposed accused is made out or not.
In brief the facts of the case are that on 22.02.2010 at 65/2 IGNOU Road, Saidullajab, New Delhi, one Tania was working as clinical assistant. She was provided residence at servant quarter by her employer and protest petitioner Shabana was also residing with the deceased Tania. It is alleged that there was no window or ventilator and there was blast on 21.02.2010 at 7:15 AM at the servant quarter due to accumulation of the gas which caused fire in the servant quarter and due to which slabs & bricks fallen down on her forehead. Police registered a case u/s 304A/337/338/285 IPC on the direction of court u/s 156(3) CrPC and filed the untrace report. In protest petition, it was stated that IO did not try to trace the cause of blast and no forensics expert was called.
In untrace report, it is stated that one of the occupants of the room ignited the gas stove probably for making tea in the morning, which caused leakage of gas resulting into blast. During investigation, IO got the postmortem of the injured/deceased and also recorded statement of one Raj Kishore and one Urmila Devi, who stated that they were sleeping and when they opened their eyes they found Page No. -2- themselves under the debris.
My Ld. Predecessor vide order dated 5.7.2012 refused to order further investigation and directed the complainant to lead pre summoning evidence.
During presummoning evidence protest petitioner produced six witnesses including herself.
In her complaint made to the court u/s 200 CrPC, complainant had stated that servant quarter is made up of raw material and deceased was sleeping in the servant quarter at the time of incident. Complainant examined herself as CW1 and deposed on line of her complaint. CW2 is Nand Kishore, who proved that no sanction for construction on the premises in question was taken. CW3 is Aditya Swaroop, who proved the MLC of the deceased Ex. CW3/A . CW4 is HC Vinod Kumar, he proved the complaint which was made to the police. CW5 is Dinesh Kumar who is record keeper of fire head quarter, who proved the computerized generated report of fire no. 2010123190. CW6 is HC Banwari Lal, he proved the DD no. 53 dt. 21.2.2010.
Thereafter, u/s 202 CrPC court further examined the complainant. The photographs which was taken during investigation were filed by IO with untrace report. As per postmortem report the cause of death is head injury. In protest petition, complainant has stated that there was a structural defect in the building and employees were forced to stay in small rooms which attributed to the gravity of the situation .
Ld counsel relied upon two judgments i.e Israt Ara Vs. State of Delhi, 2012[3] JCC 1694 & Vinod Raghuvanshi Vs. Ajay Arora and Ors, 2013[4] JCC 2782.
Page No. -3-
Ld counsel stated that in Israt Ara Vs. State of Delhi, on similar ground court summoned the accused, but from the perusal of this judgment I could not found such direction by Hon'ble High Court of Delhi. This judgment deals with power and duty of the court to compensate the victim by way of fine and etc. In this case the issue before Hon'ble High Court was something different . The facts were also different. Therefore, no reliance can be placed on this judgment. Second judgment also does not deal with subject matter. It merely states what court has to see at the stage of summoning.
In order to determine whether or not proposed accused is liable for the incident and can be summoned u/s. 304A IPC, this court has to satisfied itself as to whether the ingredients of section 304A IPC are fulfilled i.e.
1. That the proposed accused was negligent or rash ;
2. That due to rashness or negligent incident took place causing injury to deceased ;
3. That the deceased ultimately died because of his injuries. Negligence and rashness are mandatory elements of an offence under section u/s 304A IPC or section 337/338 IPC. Culpable negligence lies in the failure to exercise reasonable and proper care and caution incumbent upon a persons in a given set of circumstances. Whereas Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. A rash and negligent Act is a reckless act, which means 'regardless' or Page No. -4- heedless of the possible harmful consequences of one's acts. The 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.
In the judgment titled as Rathnashalvan v. State of Karnataka reported as 2007(3) S.C.C. 474 : A.I.R. 2007 SC 1064 the Hon'ble Supreme Court held:
"........"Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. 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, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted...."
Thus, it is the duty of the complainant to prima facie show that Page No. -5- there was negligence or rashness act on the part of the proposed accused and death took place due to direct result of that rashness or negligence.
It is pertinent to note here that causasinequanon would not be sufficient to charge the accused with any criminal liability.
Merely, if the construction was raised without taking any permission from the concerned authority i.e., in violation of MCD laws that by itself is not sufficient to charge the proposed accused for offence u/s. 304A IPC or 337 or 338 IPC. There has to be proximity between the alleged act and result.
As per the case of complainant / protest petitioner the incident took place because there was leakage of gas from the cylinder which could not find the way to escape from room due to lack of ventilation and which resulted into the blast of the cylinder.
In order to substantiate her claim protest petitioner appeared herself and deposed that here was no ventilator or window in the servant quarter & there was leakage of gas which could not pass due to lack of ventilation & the accumulation of gas caused blast in the cylinder and due to blast the kuccha structure fell down and caused death of her sister and also caused injury to her. She further relied upon report of Delhi Fire Service which is based on occurrence book. Page No. -6- As per occurrence report, it was reported that "there was LPG blast".
As far as her claim that accumulation of gas was the cause of blast is not substantiated by any other evidence. There is no expert report as no forensic team was called. Further, she admitted during her further examination u/s. 202 CrPC that she was sleeping at the time when incident took place and did not felt any gas.
Ld counsel could not satisfy the court as how complainant came to this conclusion. Further, other injured person were not examined by the complainant during her PSE. However, IO during investigation had recorded their statements during investigation and they had given in writing that they do not know as to how incident happened as they were sleeping at that time and when they opened their eyes they found themselves under the debris.
Reliance is also placed on fire report. However, this fire report is based on occurrence report only. Fire department under this report has disclaimed about authenticity of information, sequence etc. Further, occurrence report is not based on scientific conclusion. Perusal of same shows it is based on information being given and containing only details of sequence. Further, merely because there was prior blast in the cylinder, it cannot be presumed that there was leakage of gas as blast in cylinder may take place in two situations ;
Page No. -7-
1. If there was prior leakage and the gas comes into the connection fire / electricity etc ;
2. If there is already fire and due to heat the inner gas of cylinder will become so much hot that it is unable to find way to move out then it may also lead into the blast of cylinder ; In 2nd situation even if there is no prior leakage and room is airy the blast in cylinder may take place. Blast in gas cylinder may in such situation can take place even if cylinder is lying in open. The lack of ventilator or window will not make any difference in the 2nd situation.
Now, there is no forensic report or other evidence to show how incident actually taken place. Furthermore, it is the case of the complainant that her sister was provided with servant quarter to reside, but as to whether or not she was allowed to cook in the servant quarter and the factum of cooking at servant quarter was within the knowledge of employer is not mentioned. Furthermore, from where the cylinder was purchased i.e. whether the cylinder was purchased from the authorized vendor or not is also not mentioned. Further who had brought the cylinder is also not mentioned. Further the quality / make of company of cylinder is also not mentioned. If the cylinder was not purchased from authorized vendor and was not of prescribed standard then for leakage or blast the owner of premises cannot be Page No. -8- held responsible.
Further, it is alleged that the construction was of a very poor quality and it looked like a kucha construction. The annexed photographs, however show a different story and show that the construction was not kaccha construction. From perusal of same it appears the constructed premises was made of brick and was pukka construction. Further there is no report of any structural engineer as to whether the construction was kuccha or pakka. Further the photographs show that in the premises there was at least one window.
Ld counsel had further argued that in all such circumstances, liability should be fixed upon the owner who had provided the premises as owner should have presumed the consequences while providing such kind of building to his servant to reside. But, I disagree with the submissions of the ld counsel. The mere fact that proposed accused allowed the deceased to reside and the building was not sanctioned, it would not be enough to make the proposed accused liable for the offence u/s. 304A IPC. To charge the proposed accused for the offence u/s. 337/338 or 304A IP , it had to be shown that injury or death was the direct result of rash or negligent act. Indirect or remote cause would not be sufficient to charge the proposed accused for offences mentioned above.
Page No. -9-
As no one saw as to how incident actually took place and there is lack of scientific evidence too, it cannot be said that proposed accused is liable for rashness or negligence by merely providing the accommodation to the deceased and her sister.
A line has to be drawn in cases where the victim does not have knowledge or control over the premises where incident took place and cases where all the facts within the knowledge of the victim and she could have herself were avoided the situation by taking certain steps or avoiding certain things. In public places like malls, theaters, parks etc., if fire broke out and necessary safeguards and safety norms are not followed in that situation the management is certainly responsible for rashness or negligence & consequences which where result from it, but in a situation where the complete control is given to the victim and all the situations which could have been presumed by the owner, was also within the knowledge of the victim, it cannot be said that the owner should be made responsible for the consequences.
In the present case, admittedly control of damaged portion was given to the victim and other injured persons. They were having full knowledge about the whole circumstance. They could have refused to live if the construction was of such poor quality.
It has not stated anywhere in the evidence that owner forced the Page No. -10- deceased or her sister or other injured persons to live in the building.
Thus, in view of the above discussions, I feel that proposed accused cannot held responsible for injury or death. Even, if she violated some laws i.e. did not took necessary permission then also it cannot be said that death or injury was direct result of violation of certain building laws. Possibility of intervening reasons cannot be ruled out. Hence, I have no hesitation to say that protest petition has failed to establish even prima facie the ingredients of section 337/338/304A IPC. Further, section 285 IPC deals with negligent conduct with fire or combustible matter. As discussed above there is no material against the alleged that she was negligent with respect to fire or combustible matter nor even there is such allegations. Accordingly, protest petition as well as compliant is dismissed u/s. 203 CrPC.
File be consigned to record room.
(Ankit Singla) MM03/ South Distt.
Saket / 15.01.2015