Delhi District Court
State vs . Sanjay Chaudhary on 26 July, 2014
State vs. Sanjay Chaudhary
IN THE COURT OF SH AJAY GARG
Addl. Chief Metropolitan Magistrate, South, New Delhi
State Vs. Sanjay Choudhary
FIR N0. : 410/11
U/S : 287/338 IPC
PS : IGI Airport
J U D G M E N T
J U D G M E N T
a) ID No. of the case : 02405R0209832012
b) Date of commission of offence : 11.09.2011
c) Date of institution of the case : 06.09.2012
d) Name of the complainant : Nadeem Khan
e) Name & address of the : Sanjay Chaudhary
accused S/o Sh. Karan Pal Singh
R/o. E13/34 DLF City ,
PhaseI, Gurgaon
f) Offence complained off : 287 & 338 IPC
g) Plea of the accused : Pleaded not guilty and claimed
trial
h) Arguments heard on : 26.07.2014
i) Final order : Acquitted
j) Date of Judgment : 26.07.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
FIR No. 410/11 Page 1 of 14
State vs. Sanjay Chaudhary
1.Briefly stated, the case of the prosecution is that on 11.09.2011 at 11.30 pm at Bay No. 22 B, IGI Airport, New Delhi, accused Sanjay Chaudhary being the head of the maintenance department/ workshop containing ground handing equipments knowingly or negligently omitted to provide safety measures which were sufficient to take guard against any probable danger to human life and due to this negligent act and conduct, Nadeem Khan (complainant) who was working on the LDL FMC machine of which the censor was not working but he was made to work on that machine and due to lack of supervision of accused and proper maintenance of machine, the complainant Nadeem Khan received grievous injuries on his person. On these allegations, an FIR was registered. The investigation was carried out.
2. After conclusion of investigation the instant chargesheet U/sec. 287 & 338 IPC was filed for judicial verdict.
3. After taking cognizance accused was summoned and a formal notice for the offence punishable U/s 287& 338 IPC was framed against the accused vide order dt. 03.04.2013 to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined ten witnesses.
(i). PW1; Dr. Ruchi Mishra, CMO stated that the injuries received by injured Nadeem Khan were in multiple fracture of proximal phalanx little finger, middle finger and distal phalanx left thumb and middle phalanx index finger and the injuries opined as grievous vide MLC Ex. PW1/A. FIR No. 410/11 Page 2 of 14 State vs. Sanjay Chaudhary During her cross examination, she deposed that after primary treatment the injured Nadeem Khan was referred to Ortho department and the nature of injuries as grievous was opined after receipt of radiological report.
(ii). Complainant Nadeem Khan has been examined as PW2. He deposed about the factum of incident and injuries received by him but did not impute any allegation upon the accused. Hence, he was cross examined by the Ld. APP for the State. During his cross examination on behalf of State, though he admitted informing his seniors about the faulty machine but did not reveal the identity of the seniors. He further denied the suggestion that he has stated to the police to take action against the Cambata Aviation Officers and volunteered that he had given his complaint in writing which is not on record.
Further, in his cross examination by the Ld. Defence counsel, he admitted that the FMC machine was loading machine and it was not his job to operate that machine and Sandeep was operating the said machine on the day of incident. He was informed by DO Mukesh for the repairing of the machine 57 minutes prior to the incident i.e. 11 PM. The machine was attached with the aeroplane for loading the cargo in Aircraft. He admitted that he was working as an electrician. He denied the suggestion that there was no electrical defect in the machine. He verbally informed to his seniors. He denied the suggestion that he did not inform his seniors because there was no defect in the machine at any point of time. He admitted that on the date of incident, he was the senior most electrician of the electric field in the third shift and he had informed to the DO Mukesh. He admitted that the machines were properly getting repaired within time.
FIR No. 410/11 Page 3 of 14
(iii). Sandeep Kumar, Machine Operator in Cambata Aviation Pvt. Ltd has been examined as PW3. He stated that on the day of incident he was operating the LDL FMC machine which is used for loading and unloading the cargo from Air craft and he had already unloaded the cargo from the Air craft with the help of that machine. At the time of loading the cargo, the platform of that machine suddenly stopped working and he informed about it to the Incharge, Mr. Mukesh Kumar. The Incharge, asked him not to work on that machine and also said that he is sending the another LDL FMC machine. The complainant, Mr. Nadeem Khan, Electrician was on duty at that time and when he started checking the machine as well as censor, the platform suddenly came up and his hand came in the machine and crushed his fingers. He further submitted that he had only stated to duty officer that platform was not coming up and except this he had not stated anything else.
Since the witness was resiling from his previous statement, he was cross examined by the Ld. APP for the State.
He denied that he had stated to the police that the censor of FMC Machine started working suddenly due to which hand of complainant Nadeem Khan came in the machine. He also denied that he had stated to the police that earlier also the problems arose in the said machine several times.
During his cross examination by the Ld. Defence Counsel he admitted that maintenance of said FMC Machine used to take place time to time. He further admitted that on the date of incident the unloading by the machine was carried out properly. He admitted that on the date of incident the censor of the said machine was properly working and the problem was in the platform only. FIR No. 410/11 Page 4 of 14
State vs. Sanjay Chaudhary He stated that the height of the platform of the machine was around 6½ feet. He further stated that the machine is normally repaired in the work shop and not on the spot. He pleaded ignorance as to the fault of the injured Nadeem himself resulting into the injuries.
(iv). Dr. Rajeev Mahajan, MD, Radiologist has been examined as PW4. He proved the X Ray report of complainant Nadeem Khan which was prepared by him as Ex. PW 4/A and Ex. PW 4/B both bearing his signatures at point A.
(v). W/ASI Sunil Yadav has been examined as PW5. She proved the FIR No. 410/11 recorded by her on the basis of rukka vide Ex. PW 5/A and entry on rukka vide Ex. PW 5/B.
(vi). Ct. Lalit has been examined as PW6. He stated that on the intervening night of 11/12.09.2011, at about 1 AM in the night, he alongwith IO reached in the Spinal Hospital where the injured was found admitted and he was declared unfit for statement. He further stated that IO prepared rukka and sent him for the registration of FIR. He took the same to the Police station and after getting the present case registered, came back at the hospital and handed over the copy of FIR and tehrir to IO. Then they both came back at the spot of occurrence i.e. Bay no. 22 B, IGI Airport. The spot was got photographed.
Since witness was resiling from his previous statement he was cross examined by Ld. APP for the State. He stated that his statement was recorded by IO. He admitted that he had stated in the statement that due to heaviness of the machine, it was not taken to the police station and it was sealed at the spot. He FIR No. 410/11 Page 5 of 14 State vs. Sanjay Chaudhary could not state this fact earlier due to lapse of memory.
During his cross examination by the Ld. Defence counsel, he stated that he had seen the machine but he could not tell the colour and size of the machine. He denied the suggestion that he had not joined the investigation and not visited the hospital. He also denied that he did not visit the spot with the IO or that the machine was not sealed in his presence.
(vii). Kaushik Chandra Sadhukhan, Inspector of Factories has been examined as PW7. He inspected the machine and proved his report as Ex. PW7/A and photograph of machine as Mark A1 (collectively). He stated that though the censor of that machine was not working but injured was made to work on that machine. He further stated that lack of proper maintenance on the machine may be the cause of accident.
During his cross examination, he stated that the machine was kept in the open area in uncovered condition but it was sealed. The machine was de sealed by him and then he inspected the machine while their operator was operating. He could not tell as to in what manner the machine was sealed. He desealed the machine as he had gone there for the inspection of the machine. He stated that he did not seek any permission because it was not required. He stated that the machine in question was used for the purpose of loading and unloading and the machine in question was hydraulic operated machine.
He denied that the machine was not electrically operated. He further stated that he had not gone through the operation manual of the machine before conducing the inspection of the machine in question and volunteered that it was not provided. He denied the suggestion that there was no censor installed in the FIR No. 410/11 Page 6 of 14 State vs. Sanjay Chaudhary machine. He volunteered that the censor of the machine was not working. He further denied that there was only one censor installed in the machine. He stated that he did not take the photographs during the inspection of the machine. He could not distinguish the parts of the machine on the basis of photographs mark A1 collectively as same was not visible from the photographs. He was further cross examined by the Ld. Defence Counsel and stated that he has not inspected such type of machine in his carrier prior to the inspection of machine in question. He had not studied the technical manual of that machine before the inspection and first of all, the machine was started by the operator provided by the company and witness stated that he found that after certain level, the machine did not stop due to non service of the censor. He did not notice as to how many censors were in that machine.
He pleaded ignorance to the fact that there were only switches in the machine to operate it. He further stated that since he was only a mechanical engineer and electrical terms might differ and it might be explained by the electrical engineer.
It was put to the witness that the machine was kept in open condition and was uncovered and due to this reason, the electrical fault came in the machine. However, he stated that when he inspected the machine, it was not functioning properly. He admitted that the electrical switches were sensitive and there are bleak chances of electrical switches getting rust due to open condition/environment. He also admitted that if such type of electrical switches remained in open condition, they might get damaged.
(viii) PW8 SI Inder Lal has proved the rukka prepared by him vide Ex. FIR No. 410/11 Page 7 of 14
State vs. Sanjay Chaudhary PW8/A. He stated that after getting the present FIR registered, he went to the spot at Bay no. 22 B at IGI Airport but the machine was already removed from the spot to the vacant parking area of machine. As the machine was heavy in weight, so it was impossible to shift that machine to the PS and therefore, the machine was sealed from all four sides with the seal of IL at the spot itself. He proved the seizure memo of machine vide Ex. PW 8/B. During his cross examination, he admitted the documents i.e notice u/s 160 Cr.P.C, its reply dated 19.09.11, notice dated 28.12.11 for production of documents, it s reply dated 05.1.12 and proved them as Ex. PW8/D, PW8/E, Ex. PW8/F, Ex. PW8/G (OSR). He denied that Nadeem Khan had informed him that in case of minor fault while in operation he used to repair the minor fault, however, in case of major fault, the machine is sent to the nearby workshop within the IGI Airport. He further denied the suggestions put by the defence counsel.
(ix). PW9 Mr. Gaurav Pathak pleaded ignorance about the instant case except the factum of incident and he was cross examined by the State. Despite his cross examination, nothing material could be elicited in his cross examination by the State.
(x). PW10 Mr. Mukesh Kumar is the duty officer in the operation department of Cambata Aviation P. Ltd, who went to the spot alongwith the injured/ electrician and mechanic and asked the electrician to remove the machine and left for arrangement of the substitute machine. He admitted in his cross examination that in case any fault is detected during flight operation their priority is to substitute the machine due to paucity of time and in the instant case also he asked the FIR No. 410/11 Page 8 of 14 State vs. Sanjay Chaudhary injured Nadeem Khan to do so with the help of mechanic and operator.
5. Statement of accused U/s. 313 Cr. PC recorded, wherein he denied the prosecution case. Accused submitted in his statement that such incident occurs due to human error because as per the instructions only minor technical faults can be attended on the machine itself, if it is align to the aircraft otherwise it has to be removed to the workshop for repair. He further submitted that in the instant case also injured was asked to remove the machine from the spot and without any further instructions, he himself tried to fix up the machine negligently without taking any precaution and due to his own fault, his left hand got crushed in the said machine. He further submitted that the incident took place due to the negligence of the injured himself.
6. Arguments advanced by both the parties heard.
Ld. APP for the State argued that the accused was the Supervisor/ Incharge for the maintenance of the machine in question and he failed to exercise the due care and safety measures resulting into the incident in question duly proved by the testimonies of the prosecution witnesses and therefore, prosecution has established its case beyond reasonable doubts.
On the other hand, Ld. defence counsel has argued that in the instant case prosecution has failed to establish any negligence or omission of the due care on the part of the accused and therefore, accused deserves to be acquitted. Ld. defence counsel contended that accused being the maintenance incharge was responsible to take reasonable precautions and due care for the maintenance of the machines and for the same the company has employed the FIR No. 410/11 Page 9 of 14 State vs. Sanjay Chaudhary electricians and technicians and imparted requisite training. Injured Mr. Nadeem Khan was himself a senior electrician who was employed for taking care of the electrical faults and was neither asked to nor permitted to fix the technical snag /fault occurred in the machine in question and only directed to remove the same from the spot. But he himself tried to fix up the FMC Machine without taking any precautions and thus the injuries suffered by him are due to human error and no negligence can be imputed upon the accused in this regard. He further contended that injured was not an operator or an ordinary man rather the expert who was their to cure the defects and the injuries suffered by him are due to his own negligence. He also contended that the snag occurred while the machine was in operation all of a sudden which can not be perceived before hand and therefore, the incident is a result of an error of judgment only. He also contended that though the IO sought the entire record in respect of the FMC Machine in question and the company provided the same to the police explaining the entire procedure of maintenance but the same was not placed on record by the IO in order to falsely implicate the accused in this case. Lastly, Ld. Counsel for the accused also argued that the incident in question is not a direct cause of the negligence, if any, of the accused rather a remote cause for which accused can not be held liable solely.
Considered. Record perused.
7. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to FIR No. 410/11 Page 10 of 14 State vs. Sanjay Chaudhary be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
In B. C. Ramachandra v. State of Karnataka 2007 Cri. L. J. 475, that " In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur."
8. To bring home the guilt U/s. 287 & 338 IPC to the accused, the following ingredients need to be proved by the prosecution that too beyond any reasonable doubt. The essential ingredients are as follows: (1) The accused had in his possession or under his care some machinery; (2) He omitted to take such order with the machinery as was sufficient to guard against any probable danger to human life from such machinery; (3) Such omission was negligent or with knowledge of the probable danger. (4) Grievous hurt was caused in consequence of such act.
Negligence: Negligence in common parlance means and implies "failure to exercise due care, expected of a reasonable and prudent person". It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act.
Negligence is defined in a very lucid manner by the Hon'ble Apex Court in the case of Prabhakaran vs. State of Kerala, (SC) reported in 2007 FIR No. 410/11 Page 11 of 14 State vs. Sanjay Chaudhary (3) R.C.R. (Criminal) 605 : wherein it is held : "A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it.
It is further held in para 6 of the abovesaid judgment : "Culpable negligence lies in the failure to exercise reasonable and proper circumstances of each case. Rashness means doing an act with the hope that it will not. Negligence is a breach of duty imposed by law. 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 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."
9. In the instant case the prosecution has examined ten witnesses in support of their case out of which the testimony of PW2 the complainant, PW3 Sandeep Kumar, PW09 Mr. Gaurav Pathak , PW10 Mukesh Kumar and PW07 Mr. Kaushik Chandra Sadhukhan, Inspector of Factories are relevant to impute negligence on the part of accused.
PW02 is the complainant/injured Nadeem Khan himself, who did not impute any allegation upon the accused. Rather he submitted that it was his FIR No. 410/11 Page 12 of 14 State vs. Sanjay Chaudhary responsibility to take care of the said machine. Even in his cross examination he did not utter any single word against accused herein specifically and only admitted that the incident in question is caused due to negligence of his seniors however, the identity of those seniors were not revealed by him before the court. Further in his cross examination on behalf of accused he admitted that the faulty machines are properly repaired well within the time. He simply stated that he informed his senior about the malfunctioning of the machine in question and they did not take any action due to which incident in question happened. But prosecution failed to show whether it is the present accused to whom he conveyed the information or to somebody else.
PW03 Sandeep Kumar is an eye witness who though reiterated the factual matrix of the instant case but did not impute any negligence on accused. Rather in his cross examination he admitted that on the date of the incident the censor of the said machine was working properly and the problem occurred in the platform only. He also admitted that the machine is normally repaired in the workshop not at the spot. PW09 Mr. Gaurav Pathak turned hostile to the prosecution and pleaded ignorance about material facts as to how the injured sustain injury and as to who is responsible for the same. He even denied his presence at the spot at the time of the incident. Testimony of PW10 Mukesh Kumar also negated negligence on the part of the accused.
Further testimony of PW7 is relevant to the extent that machine in question was not functioning properly at the time of inspection. However, he also failed to prove that the fault occurred in the machine was due to negligence on the part of the accused or all of sudden. Though he is an expert but his testimony in entirety is not sufficient to impute any responsibility on the part of FIR No. 410/11 Page 13 of 14 State vs. Sanjay Chaudhary the present accused. Remaining witness deposed on procedural aspects.
10. On the basis of above discussion, I am of the considered opinion that all the material witnesses examined by the prosecution failed to proved any direct negligence or omission on the part of the accused which is "sine qua non"
for establishing charges against the accused. Further the complainant himself did not utter even a single word against accused or anybody else. Rather as per record he himself exceeded his authority without instructions at his own risk and therefore, no one else can be held liable for his act. Hence, the accused Sanjay Chaudhary is acquitted from all the charges levelled against him. Ordered accordingly.
Announced in the open court
on 26th July, 2014 (Ajay Garg)
A.C.M.M.01/New Delhi.
This order contains 14 pages and each paper is signed by me. FIR No. 410/11 Page 14 of 14