Delhi District Court
State vs . Ram Kumar & Others on 28 February, 2012
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE,
OUTER05, ROHINI COURTS, DELHI
State Vs. Ram Kumar & others
FIR No. : 315/2002
P.S. : Kanjhawala
U/s.: 304A/34 IPC
Unique ID no. 02404R0364722010
Date of institution of the case : 17/10/2003
Date of reserving judgment: 24/02/2012
Date of Judgment: 28/02/2012
JUDGMENT
1. S. No. of the Case : 408/03/2000
2. Date of Commission of Offence : 25/12/2002
3. Date of institution of the case : 17/10/2003
4. Name of the complainant : Shri Bindeshwar Yadav
5. Name of the accused, parentage & address : (1) Ram Kumar S/o Shri Bharat Singh
R/o H. No.136, Village Jonti,
Delhi.
(2) Paras Ram (abated vide 08.02.08)
S/o Shri Surat Singh R/o C578,
Saraswati Vihar, Delhi.
6. Offence complained or proved : U/s 304A/34 IPC
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 28.02.2012
FIR No. 315/2002 PS Kanjhawala
1
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the present case are that the accused Paras Ram and Ram Kumar have been sent up to face trial for the offence U/s 304A/34 IPC with the allegations that on 25.12.2002 at 12:00 noon at Village & Post Office Jonti, both the accused persons hired four labourers Ram Sagar, Pankaj, Gannu and Complainant Bindeshwar Yadav for digging a well and did not provide them proper safeguards and as such acted rashly and negligently due to which one labourer Pankaj died by falling of heap of mud upon it and the accused persons hereby committed the offence U/s 304A/34 IPC by rash and negligent act not amounting to culpable homicide.
2. The investigation was completed and the charge sheet was filed in context of the present FIR against the accused U/s 304A/34 IPC.
3. The cognizance was taken and provisions of Sec. 207 Cr. P.C. were complied with.
4. After hearing arguments, the notice was served upon the accused persons U/s 304A/34 IPC on 17.09.2007 to which the said both the accused pleaded "Not Guilty" and instead claimed trial.
5 To substantiate the prosecution case, 07 witnesses were examined by the prosecution.
6. PW1 HC Nafe Singh proved the recording of FIR No.315/2002 which is Ex.PW1/A.
7. PW2 Dharam Pal deposed that on the fateful day he was posted as ADO, Wazir Pur Fire Station and he received a call regarding falling of a person in a well in the field FIR No. 315/2002 PS Kanjhawala 2 of Paras Ram. He reached at the spot alongwith the staff members where the dead body was taken out from the well and was shifted to the hospital. He further deposed that photographs of well which are Ex.P1 to P5.
8. PW3 Bindeshwar Yadav is the complainant in the present case. He deposed that he was working as labourer and Ram Kumar came to him and asked for digging a well at his field. He further deposed that he alongwith other labourers Ram Sagar, Pankaj and one other labourer reached at the field of Ram Kumar and started digging the well which continued for four days and on the fifth day when labouer Pankaj was digging the well and he alongwith other labourer were removing the mud, then at about 10/11:00 AM suddenly the heap of mud fell upon Pankaj and Pankaj was pressed under the mud. He further deposed that Pankaj was removed with the help of public persons and was taken to hospital where he was declared brought dead. He proved the case property i.e. tat bori as Ex.P1 and sting Ex.P2. He further deposed that he had told the police that on the fateful day Ram Kumar told them to do the work by saying that the mud was deeply pressed and there is no scope of its being fallen. He further deposed that the said incident happened due to the negligence of Ram Kumar. He proved his statement made to Police as Ex.PW3/A.
9. PW4 Shri Sarvender Pal Singh Patwari deposed that on 19.07.2003 he was posted in DC Office, Kanjhawala and on the said date he prepared the khatoni pamish which is Ex.PW4/A. He stated that presently the khasra NO.383/03 is in the name of Narender Vats, Vijender Vats both S/o Shir Paras Ram in equal share. The copy of khatoni is Ex.PW4/B. FIR No. 315/2002 PS Kanjhawala 3
10. PW5 Jia Nand deposed that on 25.12.2002 he was posted at PS Kanjhawala and on receiving the DD NO.14A he alongwith ASI Ram Kishan reached the spot where he met Fire Brigade Officials and some villagers who told them that one person Pankaj was digging the well and suddenly a lot of mud fell upon him due to which he became unconscious. He further deposed that the person Pankaj was taken out from the well and he alongwith IO/ ASI Kishan took him to SGM Hospital through CATS Van A28 but he was declared brought dead by the doctors. The IO got the post mortem conducted on the next day and his statement was recorded by the IO.
11. PW6 HC Narender Singh deposed that on 25.12.2002 he was posted at PS Kanjhawala and on that day IO/ ASI Ram Kishan called him to SGM Hospital and on reaching there he was handed over rukka for getting the case registered. He took the rukka to the PS and got the case registered and came back to the spot where the original rukka and FIR was handed over to the IO. He further deposed that IO seized the rope and one bori with the seal of RK vide seizure memo Ex.PW6/A. His statement was recorded by the IO. He proved the bori as Ex.P1 and rope as Ex.P2.
12. PW7 Dr. Samir Pandit deposed that on 26.12.2002 he conducted the post mortem of Pankaj who was brought with the alleged history of being buried under the load of mud while digging the well. He proved the post mortem report as Ex.PW7/A and opined that the cause of death as asphyxia due to suffocation caused by inhalation of earthing dust particles into respiratory passage as being buried under being load of earth.
13. The proceedings against accused Paras Ram were abated vide order dated FIR No. 315/2002 PS Kanjhawala 4 08.02.2008 due to the death of the accused Paras Ram.
14. The prosecution evidence was closed vide order dated 09.06.2011 considering the old pendency of the case and the fact that sufficient opportunities have been granted to the prosecution for leading evidence.
15. The accused Ram Kumar was examined U/s 313 Cr.PC on 24.02.2012 where he pleaded false implication. At that stage, another application was moved by Ld. APP for the State for summoning the prosecution witnesses however, the application was turned down by order of even date.
16. This court has heard the final arguments from Ld. APP for the state and counsel for the accused and has perused the judicial record.
17. In order to prove the offences U/s 304A/34 IPC, the prosecution was required to prove beyond reasonable doubt by leading reliable and cogent evidence that the accused persons acted in a rash and negligent manner which is the cause of death of deceased Pankaj.
18. The only eye witness to the incident is PW3 Bindeshwar Prasad. He is the only star prosecution witness. It is the case of the prosecution that the accused persons employed four labourers for digging a well in the field and one of the labourer namely Pankaj died due to the rash and negligent act of the accused persons. The allegations by the prosecution are that the accused persons failed to take necessary precautionary measures and safeguards due to which the labourer Pankaj got pressed under the heap of mud which fell down upon him while digging the well. Despite giving several opportunities to the prosecution, the prosecution was not able to examine any other FIR No. 315/2002 PS Kanjhawala 5 labourer or eye witness to support their case. The prosecution has relied only on the ocular evidence of PW3 Bindeshwar Yadav. In the examination in chief he deposed that accused Ram Kumar came to him and asked for digging a well at his field and consequent to which he alongwith other labourer went to the field of Ram Kumar and starting digging a well. He further deposed that on the fifth day while digging the well, the heap of mud fell upon the deceased Pankaj due to which he died. Initially PW3 raised no allegations against the accused persons regarding the rashness or negligence but on cross examination by Ld. APP for the State, he admitted the suggestions given by Ld. APP for the State regarding the negligence of accused Ram Kumar. He deposed in cross examination by Ld. APP that it was accused Ram Kumar who told them to do work on the fateful day by saying that mud was deeply pressed and there is no scope of its being falling down. In his cross examination by the Counsel for the accused has stated that the work contract was taken by him and he engaged three more labourers to work with him. It is further admitted by him that he used to do work on their own and in the evening they used to take part payment for their daily needs. He also admitted that the accused persons did not visit the spot regularly and that on the fateful day none of the accused persons were present at the spot.
19. PW4 Sarvender Pal Singh Patwari has proved the khatoni Ex.PW4/B with respect to khasra No.383/03 Village Jonti and stated that the aforesaid property is in the name of Gajender Vats and Bijender Vats who are the sons of Shri Paras Ram. Also the original tehrir and FIR mentions the place of occurrence as field of Paras Ram. Thus, this fact does not dispute it that the place of occurrence where the well was being dug belongs to FIR No. 315/2002 PS Kanjhawala 6 the accused Paras Ram and not Ram Kumar. It is the case of the prosecution that accused Ram Kumar asked the labourers to dig the well in his field however, admittedly the field does not belong to Ram Kumar. Even if this assumed that accused Ram Kumar asked the labourers to dig the well and visited the spot irregularly it cannot be said that he acted rashly and negligently causing death of labourer Pankaj. Section 304A IPC reads as follows: " whosoever 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"
20. In a plain and lucid wordings of Section 304A IPC, a person can be held liable U/s 304A IPC only when rashness or negligence on his part is proved against him. It is not every act or omission for which a person can be held liable but only the act or omission which is direct or proximate cause of death leads to culpability of the accused. In the present case, the prosecution has not been able to prove as to what act the accused Ram Kumar has committed which can be classified as rash and negligent. Nor any omission to this effect has been proved on record. The prosecution has not been able to prove as to what safeguards or precautionary measures was to be taken by accused Ram Kumar which he has not taken. It is not proved as to what statutory or moral duty accused Ram Kumar failed to discharge. PW3 Bindeshwar Yadav himself admitted that he has taken the work contract of digging the well and he has engaged three more labourers to do the work. Nothing has been proved on record to show that accused Ram Kumar gave instructions to the labourers about the manner in which the well was to be dug. The FIR No. 315/2002 PS Kanjhawala 7 labourers were left on their own to dig the well. Moreover, admittedly the accused persons were not even present when the incident happened. At this juncture, this court would like to refer the judgment of Hon'ble High Court of Madras in Public Prosecutor, Vs. Pitchaiah Moopanar alias Pitchaiah Pillai 1970 Crlj 705 wherein it was observed:
9. "It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance of the masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime mortar in proper proportions, the respondent could not be made liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a layman. He, therefore, cannot be liable for the negligence of the persons who actually constructed the building which negligence is the causa causans for the collapse of the building."
10."In Mohd. Rangawalla V. Maharashtra State, AIR 1965 SC 1616, it is held that death must be direct result of the rash or negligent act of accused and the act must be efficient cause without intervention of another's negligence, and it must be the causa causans, and it is not enough that it may have been the causa sine qua non."
21. This court would also like to refer the judgment of Hon'ble High Court of Delhi in Baldev Raj Vs State, 2009 Crlj 1418 wherein it was referred:
22."Petitioner being an owner of the property and a layman cannot be fastened with the liability of having caused death of the workers by his rash and negligent act. There is no evidence to indicate direct nexus between the petitioner and the alleged rash and negligent act without the intervention of another's negligence which caused death of six workers and bodily injuries to eight workers. Rather negligence is attributed to coaccused Mohd. Kaif."
FIR No. 315/2002 PS Kanjhawala 8
27. "In the present case petitioner happened to be owner of the property, a layman and had not given any instructions to the labour and the masons who were working there. There is no prima facie evidence to indicate that the petitioner had been visiting the place oftenly specially a day or two earlier to the date of the incident. It cannot be said that there was any direct nexus between the petitioner and the rash and negligent act killing six workers and injuring eight workers due to collapse of the building. Therefore, under the circumstances of the case even the ingredients incorporated in Section 304A IPC are not made out against the petitioner."
22. In the light of above, observations, discussions and precedings this court is of the considered view that there is no rashness or negligence on the part of accused Ram Kumar which has led to the death of labourer Pankaj. The prosecution has miserably failed to prove the case against accused Ram Kumar beyond the shadow of reasonable doubts. The accused Ram Kumar is entitled to be exonerated from the charges of Section 304A/34 IPC and accordingly, he is hereby acquitted.
23. The Bail Bonds & Surety Bond of the accused are cancelled. The original documents of their sureties, if any on record, be released to the said sureties after cancellation of the endorsements thereupon as and when so applied.
24. File be consigned to record room after due compliance. Announced in the open court on 28th day of February, 2012. ( Sushil Anuj Tyagi ) Metropolitan Magistrate, Rohini Courts: Delhi (GN) FIR No. 315/2002 PS Kanjhawala 9