Delhi District Court
State vs Kamlesh Kumar on 8 January, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Kamlesh Kumar FIR NO. : 182/2003, U/s 287/304A IPC PS : Seelampur A. CIS No. of the Case : 460567/2015 B. FIR No. : 182/2003 C. Date of Commission of Offence : 19.06.2003 D. Name of the complainant : SI Satender Mohan E. Name of the Accused, his : Kamlesh Kumar S/o Shiv Parentage & Addresses Baran, R/o 215, Gali no.5, Chabra Gali, Ambedkar Basti, Maujpur, Delhi F. Offence complained of : U/s 287/304A IPC G. Representation on behalf of : Ms. Amandeep Kaur, Ld. APP State H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 21.11.2023 J. Date of Order : 08.01.2024 K. Final Order : Acquitted
Brief Statement of Reasons for Decision of the Case
1. Briefly stated the case of the prosecution is that on receipt of DD no.2A dated 20.06.2003 regarding death of person by FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.1 of 14 electrocution. SI Satender Mohan and Ct. Subodh reached at the spot i.e. H. No.215, Gali no.5, Chabra Gali, Ambedkar Basti, Maujpur, Delhi. Deceased Virender at the sticker making factory with burnt marks on his left thigh. No eye witness was found at the spot. FIR was registered under section 304A IPC. During investigation, eye witness Bijender Prasad Yadav was found who informed that the accident has occurred due to negligence of factory owner Kamlesh Kumar who despite reminders did not get the faulty machines repaired. IO also recorded disclosure statement of the accused. The accused was charge-sheeted for offence punishable under Section 287/304A IPC.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/SI Satender Mohan filed the charge sheet against the accused.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. was supplied to him.
4. Charge was framed vide order dated 25.04.2005 for the offence punishable Under Section 287/304A of the IPC against accused by the learned Predecessor of this Court, to which, the accused pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 06 witnesses in support of its case. The eye witness to the incident Bijender could not be examined as a witness before this Court as he did not appear before this Court despite services of summons and BWs.
FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.2 of 14 Accordingly, vide order dated 14.08.2019, the said witness was dropped from the list of witnesses. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Shyam Sunder Prasad is the father-in-law of deceased Virender. He has deposed that his son-in-law was working at the factory of accused situated at H. No.215, Gali no.5, Chabra Gali, Ambedkar Basti, Maujpur, Delhi. In the said factory label which is pasted on under garments was prepared and his son-in-law used to work at machines. On 20.06.2003 he came to know that his son-in-law had died due to electrocution while working on the machines of the factory. He went to the factory, where police officials had sealed the room of the said factory with the seal of SM and had taken into possession pliers and scissor. Police recorded statement of one Vijender Prasad and took them to mortuary to GTB hospital where he identified the dead body of his son-in-law. Postmortem of the deceased was conducted. The witness was not cross examined by the accused despite being given an opportunity.
(ii) PW2 Mukesh Gupta on 23.06.2003 he was posted as electrical overseer at the office of Asstt. Electrical Inspector, Labour Welfare Centre, Vishkarma Nagar, Jhilmil, Colony, Delhi.
On that day at the request of IO/SI Satender he visited the place of incident i.e. H. No. 215, Chabra Gali no.5, Ambedkar Colony, Maujpur, Delhi to find out the cause of accident. Four power loom machines were found installed at the premises and the room was sealed. He inspected the power loom machines with which the accident had been reported and found connected half HP Single Phase electric motor. The insulation resistance of the electrical installation was tested with 500 Watts and complete FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.3 of 14 leakage of current was observed and as a result the mettalic body of the machine was became electrically charged. He prepared detailed inspection report and submitted it to B. L. Talreja, the then Electrical Inspector, Delhi for signature. In his cross- examination by Ld. counsel for accused, he has stated that he received the request from IO to inspect the machine on 23.06.2003. He inspected the said premises with the IO at about 01:15-01:20 pm. IO did not take any photographs of the machine in his presence.
(iii) PW3 B. L. Talreja was the Asstt. Electrical Inspector and on 23.06.2003 at the request of IO had deputed Mukesh Gupta to inspect the place of incident i.e. H. No.215, Chabra Gali no.5, Ambedkar Colony, Maujpur, Delhi. Mukesh Gupta submitted his report and after going through the same he signed it. In his cross- examination he has stated that no one accompanied Mukesh Gupta to the spot. The report Ex. PW2/A prepared by Mukesh Gupta does not bears his signature. No file maintained at the labour office with regard to the present incident was given to the police.
(iv) PW4 ASI Rattan Singh was the photographer and on directions of IO conducted photography of the spot on 20.06.2003. In his cross-examination he has stated that he reached the spot at about 08:30 am. IO alongwith other police officials were present at the spot. No public persons were found at the spot. He conducted photography of the body of the deceased alongwith the machinery. He left the spot within ten minutes of his arrival.
(v) PW5 ASI Subodh on 20.06.2003 he received DD No.2A in respect to the present incident and went to spot i.e. Chabra Gali FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.4 of 14 no.5, Maujpur, Delhi alongwith the IO wherein the dead body of the deceased Virender was found inside the factory at the spot and FIR in the present case was registered through him. He again arrived at the spot alongwith copy of FIR and original tehrir and handed it over to the concerned IO. One employee Bijender was found at the spot at whose instance a site plan was prepared by the IO. The relatives of the deceased Virender also arrived at the said spot. The room containing the dead body of the deceased was sealed with the seal of SM alongwith plier and pair of scissor by the IO. Statement of Bijender was recorded by the IO in his presence. Thereafter, he alongwith the IO and the relatives went to GTB hospital mortuary wherein the dead body was deposited. IO recorded statements of relatives of deceased. Thereafter, they arrived at the PS and deposited the case property to the maalkhana. He alongwith IO again went to the spot to find accused Kamlesh who was found at the spot. Formal interrogation was conducted, he was arrested by the IO and his personal search was conducted. He was granted bail. The witness correctly identified the pliers/screw drivers and pair of scissor produced by the MHC(M) in the Court. In his cross-examination he has stated that they left the PS at about 07:15 am and reached the spot at about 07:30 am. He could not tell the number of machines installed at the factory. No other worker was present at the spot except Bijender. There was a burnt mark on the thigh of the deceased. The statement of relatives of deceased was recorded at the mortuary of GTB hospital or not at the spot of incident. No attendance register of the factory was found at the spot. No statements were recorded by the police officials in my presence. He denied the suggestion that he was deposing falsely FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.5 of 14 at the behest of the IO.
(vi) PW6 Mr. Mehfooz Alam identified the handwriting and signature of the Dr. Yogesh Tyagi who had prepared the postmortem report of deceased Virender. In his cross- examination he has stated that the postmortem report was not prepared in his presence, however, postmortem was conducted in his presence.
6. PE was closed on 20.09.2023 and on 25.10.2023 statement of accused under Section 313 Cr.P.C. read with 281 Cr.P.C. was recorded. Accused did not wish to lead DE and matter was fixed for Final Arguments.
7. Final arguments were advanced on behalf of accused. Heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. In the present matter the accused has been charged with offence punishable under section 287/304A IPC. They read as follows:
"287. Negligent conduct with respect to machinery.--Whoever does, with any machinery, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.6 of 14 with both."
10. In Shri Suren Gurung v. State of Sikkim, Crl. Rev. P. No. 03 of 2017 passed by Hon'ble Sikkim High Court has observed that :
"17. To fall within the mischief of Section 287 IPC an accused must have done, with any machinery, any act so "rashly and negligently" as to endanger human life, or to be likely to cause hurt or injury to any person. Section 287 IPC also makes the "knowingly or negligently" omitting to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery an offence. The first part of Section 287 IPC thus deals with the "rash and negligent" act with the machinery endangering human life or to be likely to cause hurt or injury to any person. The second part of 287 IPC deals with "knowingly and negligently" omitting to take such order with the machinery in his possession or under his care. Section 287 IPC thus deals with negligent conduct with respect to machinery.
18. In re: Mohri Ram v. Emperor1 cited by Mr. S. K. Chettri, the Lahore High Court dealt with the provision of Section 287 IPC in this manner:
"....... I am of opinion that both these petitioners are liable to be punished under S. 287 I. P. C. because they were in possession of and had the care of the flour mill and consequently of the belting which was the cause of this accident, and it is obvious that they omitted to take care of such machinery negligently as was sufficient to guard against probable danger to human life. They should have known that by leaving the belting protruding outside the building and without fencing there was danger to persons who might be passing near the belting. I alter their conviction to S. 287, I. P. C. and reduce their sentences of fine to Rs. 250/- in the case of Mohri Ram and Rs.150/- in the case of Munshi Ram; in default of payment of fine they will both suffer rigorous imprisonment for three months each."
[Emphasis supplied]
19. A reading of Section 287 IPC and the judgment of the Lahore High Court in re: Mohri Ram (supra) makes it clear that the word "order"
FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.7 of 14 in the phrase "omits to take such order" used in the second part of Section 287 IPC would also imply arrangement and thus the failure to make adequate arrangement with the machinery would also fall within its mischief if the failure is done "knowingly" or "negligently".
Thus, in order to make the omission to take such order with any machinery liable for punishment under this part of Section 287 IPC it must necessarily be proved that the accused had failed or omitted to take such order or make such arrangement with the machinery "knowingly or negligently" as is sufficient to AIR 1930 Lahore 453 guard against any probable danger to human life from such machinery. "
11. Further, section 304A IPC reads as under:
"304A. 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."
11. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic requirement of the said Section i.e. "Rash or Negligent Act" with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death; and
3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide."
12. In Rathnashalvan vs. State of Karnataka : AIR 2007 SC 1064 , the Apex Court observed that:
"5. Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.8 of 14 negligent and are directly cause of death of another person. 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. 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.
6. As noted above, "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.
13. Section 304A which deals with unintentional death caused by doing any rash or negligent act of the offender. The applicability of this Section is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. To bring an offence within the ambit of Section 304A, the prosecution is required to bring on record that the act was done by an accused and the death was caused due to rash and negligent act.
FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.9 of 14
13. In other words, to seek conviction of the accused under the charged Sections, cogent evidence has to be led to establish "rashness"/"negligence" on the part of the accused.
"A rash act is primarily and over-hasty act and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences." (Page no. 321 Ratan Lal & Dhiraj Lal, The Indian Penal Code 28th Edition Reprint 2002). Further, a negligent act "involves blameworthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caution ought to avoid". (Page no. 322 Ratan Lal & Dhiraj Lal, The Indian Penal Code 28th Edition Reprint 2002). Either of these ingredients have to be proved by affirmative evidence and cannot be presumed res ipsa loquitur. Reliance is placed upon State of Karnataka Vs. Satish (1998) 8SCC 493"
14. The prosecution also has to establish beyond reasonable doubt that the direct and proximate cause of death of the victim was the rash and negligent act of the accused.
15. Thus, now this Court proceeds to appreciate the evidence brought on record by the Prosecution.
16. In the present case, no eye witness has been examined by the prosecution. The co-worker Bijender Prasad Yadav, though named as prosecution witness could not be examined as a witness before this Court as he had expired. Nothing has been brought on record by the prosecution to show any negligence on part of the accused or any omission by the accused in order to safe guard the machinery in his possession/take due care against any FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.10 of 14 probable danger to human life. Though, PW2 who examined the machinery has filed his detailed Ex. PW2/A perusal of which shows that the power loom on which the victim was working had a leakage of current, in the absence of any other deposition it cannot be established that the same was due to the rashness or negligence of the accused was due to his failure in taking proper duty of care.
17. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. The prosecution has failed to prove that in the given circumstances it was the rashness or the negligence of the accused wherein he failed to take proper care of his machinery which caused the death of Virender. As discussed above, for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences and a negligent act involves blameworthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caution ought to avoid. Either of these have to be proved by positive evidence. The proof of the prosecution cannot be discharged by presumptions.
18. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.11 of 14 "Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
19. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
20. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.12 of 14 Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
21. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
22. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences and a negligent act involves blameworthy heedlessness on the part of the accused which a normal prudent FIR No.182/03 State vs. Kamlesh Kumar PS Seelampur Page No.13 of 14 man exercising reasonable care and caution ought to avoid. Either of these have to be proved by positive evidence.
23. Thus, in view of the above discussion, the prosecution has not been able to establish beyond reasonable doubt that the direct and proximate cause of death of the victim was the rash and negligent act of the accused or his failure to take due care, therefore, accused Kamlesh Kumar is found not guilty in the present case and resultantly, he stands acquitted in the present case.
24. Accused is directed furnish bail bond and surety bond in the sum of ₹10,000/- each u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by
VIPUL VIPUL SANDWAR
SANDWAR Date: 2024.01.08
15:53:17 +05'30'
Announced in the open (VIPUL SANDWAR)
Court on 8 th January, 2024 MM-02/NE/KKD COURTS
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