Delhi District Court
State vs Purshottam & Ors. on 22 January, 2019
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No.397/2006
PS Rohini
State Vs Purshottam & Ors.
Date of Institution: 24.05.2007
Date of Judgment: 22.01.2019
JUDGMENT
(a) Serial Number of the case : 520427/16
(b) Date of commission of offence : 30.04.2006
(c) Name of the complainant : Sh. Anil S/o. Sh Ramesh
(d) Name of Accused, their : 1.Purshottam parentage & residence S/o Sh. Balbir Singh, R/o I-1308, Jahangir Puri, Delhi-33.
2.Desh Raj, S/o Late Sh. Ram Singh, R/o H 4-1802, Jahangir Puri, Delhi-33
3.Virender, S/o Late Sh. Sehdev Prasad, R/o A-877, Jahangir Puri, Delhi -33.
(e) Offence complained of : Under Section 287/337/304A IPC (f) Plea of Accused : Pleaded not guilty (g) Final Order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Purshottam, Desh Raj and Virender have been sent to face trial for the commission of offences under Sections 287/337/304A of the Indian Penal Code (IPC) upon the allegations that on 30.04.2006, at about 3.30 p.m, in front of H.No. E-6, Main Road, Vijay Vihar Phase II, Sector 4, Rohini, Delhi, in furtherance of their common intention, they FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 1 of 13 knowingly and negligently omitted to take such order with the machinery in their possession and under their care as was sufficient to guard against any probable danger to human life from such machinery and due to said negligence, one labourer Suraj and complainant Anil received simple injuries and one labourer Bharat expired.
2) After completion of investigation, chargesheet was filed in the Court, cognizance of the offences was taken, the accused were summoned and after they entered appearance, copy of chargesheet and the documents were supplied to them in compliance of Section 207 of the Code of Criminal Procedure (CrPC).
3) After consideration of the submissions made on the point of notice, notice was served upon the accused Purshottam, Desh Raj and Virender for offences under Section 287/337/304A of Indian Penal Code by the Ld Predecessor to which the accused persons pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 11 witnesses as PW Kripal Singh, PW Rajesh Verma and PW Suraj were dropped since they remained unserved even through the office of DCP and PW HC Ravi Dutt was not examined since he had expired and the prosecution closed its evidence without examining PW HC Ram Pal.
5) PW1 Rajpal did not support the case of the prosecution and was duly FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 2 of 13 cross examined by the Ld. APP for the State wherein he admitted that on accused Deshraj and Virender had taken a contract to install electricity pole in Vijay Vihar, Phase-II, Sctor 4, Rohini, Delhi but denied the statement Mark X in toto. He was not cross examined on behalf of the accused despite opportunity.
6) PW2 Mohan Ram being the father of the deceased Bharat and PW4 Sh Bhaale Ram being the uncle of the deceased, testified as to having identified the dead body of Bharat on 01.05.2006 vide his statement Ex. PW2/A and PW4/A. They were not cross examined by the Ld Counsel for the accused despite opportunity.
7) PW3 Retd. ASI Triloki Nath (ASI/Technical as he then was) being the Mechanical Inspector testified as to having mechanically inspected the vehicle bearing no. HR-38M-0454, Omega Crane on 03.05.2006 on the request of IO SI Panna Lal and proved his report Ex. PW3/A. He was not cross-examined on behalf of the accused despite opportunity.
8) PW5 Anil being one of the injured testified that on 30.04.2006, installation work of electricity pole in the area was with the help of crane number HR-38M-0454. He further testified that he was going to Sector 4 for some urgent work on Sunday and when he reached near Sky Land Public School, the driver of the crane was lifting the electricity pole with the help of wire as the same was to be installed in front of E-16. He further testified that he noticed that the wire and FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 3 of 13 kunda/clip which was tied with electricity pole and crane was slightly broken and defective and that he told about the said fact to the crane driver as well as to the contractor present but they did not pay heed to his request even though some other persons also told them about the same and started doing their work due to which the wire broke and the said electricity pole fell down due to which PW5/Anil sustained injury on his right hand while Suraj and Bharat came under the pole and they were then shifted to BSA Hospital. PW5/Anil further testified that the incident was caused due to negligence of the accused persons and that the police recorded his statement Ex. PW5/A, FIR was registered and the police also prepared the site plan at the instance of PW5. PW5 further testified that the accused Purshottam was arrested and personally searched vide memo Ex. PW5/B and Ex.PW5/C and later on, the contractors namely Deshraj and Virender were also arrested at his instance. PW5 correctly identified all three accused persons in the Court and also identified the photographs of the injured, crane, electricity pole,broken wire and clip in the Court through photographs Ex. P1 to P7. He was initially not cross examined by accused despite opportunity, but subsequently vide order dated 19.04.2017, upon an application under Section 311 of CrPC, the accused was permitted to cross-examine the witness subject to deposit of cost but thereafter the presence of the witness could not be secured for cross-examination as he remained unserved even through the office of DCP.
9) PW6 ASI Ram Kishan testified as to having gone to the spot i.e., H. FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 4 of 13 No. E-6/20, Vijay Vihar II, near Sky Lab School on 30.04.2006 with SI Panna Lal, upon receiving DD No. 24 PP Vijay Vihar where they found one crane bearing no. HR-38M-0454, one broken kunda with wire and they came to know that injured had already been taken to BSA Hospital. He further testified that the IO had left him at the spot and went to the hospital returning after one hour with one Anil. PW6 further testified that the IO handed over the rukka to him and he got the FIR registered returning to the spot with the original rukka and copy of FIR. PW6 further testified that the IO seized the crane with key, wire with broken Kunda vide seizure memo Ex. PW6/A, IO prepared the site plan at the instance of PW Anil, IO recorded the statement of Anil and PW6, the case property was brought to PS by them and deposited into Malkhana.
10)PW6 further testified that on 01.05.2006, he went to NDPL office, Sector 4, Rohini, with SI Panna where the IO arrested and personally searched the accused Virender and Deshraj vide memo Ex. PW6/B to Ex.PW6/E identifying his signatures thereon. He further testified that on 08.05.2006, he was present at PP Vijay Vihar with the IO, Anil came with one more eye-witness who correctly identified the accused Purshottam and the IO arrested and personally searched the accused Purshottam vide memo Ex. PW5/B and Ex.PW5/C. He correctly identified the accused in the Court and also identified the photographs of the spot, of the injured, of the crane, of the electricity pole, of the broken wire and clip in the Court Ex. P1 to P7. He was duly cross examined by the Ld Counsel for the accused.
FIR No. 397/2006PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 5 of 13
11) PW7 Dr. Anita, (the then CMO, BSA Hospital) testified as to having medically examined one patient Bharat on 30.04.2006 vide MLC No. 2127/06 Ex. PW7/A who was brought to casualty by Ram Babu with alleged history of fall of ladder over head (as told by attendant) and the patient was declared brought dead. She further testified that on the same day two patients Suraj and Anil were also brought to the casualty with alleged history of fall of ladder over head as told by attendant and patient himself whom she examined and prepared MLC No. 2129/06 ie Ex PW7/C and 2128/06 ie Ex. PW7/B respectively. She was not cross examined by the accused despite opportunity.
12) PW8 Ishwar Singh being the photographer testified as to having clicked the photographs Ex. P1 to P7 of the spot on 30.04.2006 on the instructions of the IO and further testified as to having handed over the same to IO after getting them developed. He was also not cross examined by accused despite opportunity.
13) PW9 Dr. Manoj Dhingra, Incharge, Mortuary Sanjay Gandhi Memorial Hospital testified as to having conducted the postmortem on the body of deceased Bharat on 01.05.2006 with alleged history of fall of ladder over head and he also proved his detailed report Ex. PW9/A testifying that the cause of death was coma as a result of head injury. He was not cross examined by the accused despite opportunity.
FIR No. 397/2006PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 6 of 13
14) PW10 Dr. Jitender, Specialist Surgeon, BSA Hospital having been deputed by concerned Medical Superintendent, identified the signatures of Dr Mohit Anand on MLC no. 2127/07 dated 30.04.2006 of patient Bharat Ex. PW7/A at point A and B and writing on the same Ex. X to X1 testifying that the concerned doctor had left the hospital and his present whereabouts were not known. He was also not cross examined by the Ld Counsel for the accused despite opportunity.
15) PW11 Retd. SI Panna Lal being the investigating officer testified that on 30.04.2006, upon receiving DD No. 24 Ex. PW11/A regarding fall of one electricity pole near SkylAb School and H No E-6/20 Vijay Vihar Phase-II by one crane used by NDPL personnel in which one person had died and 2-3 persons were injured, he went to the spot with Ct Ram Kishan where they found one crane bearing no. HR-38M-0454, one pole and one broken iron kunda. He further testified that at the spot, they came to know that injured had already been taken to BSA Hospital upon which he left Ct Ram Kishan at the spot and went to the BSA Hospital where he collected the MLC of deceased Bharat who had been declared dead at the hospital as well as MLC of the other injured Suraj and Anil who had sustained simple injuries. He further testified as to Anil having told him that he was present at the spot at the time of incident and PW11 alongwith Anil reached at the spot where he recorded the statement of PW Anil Ex. PW5/A, seized the crane with key, and the broken iron Kunda vide memo Ex. PW6/A, prepared the tehreer Ex. PW11/B and got the FIR registered through Ct Ram Kishan who returned to the spot FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 7 of 13 with the original tehrir and copy of FIR upon which IO went in search of accused who were not found so PW11 went to the hospital.
16) PW11 further testified as to having prepared the site plan Ex PW11/C at the instance of complainant Anil and as to having recorded the statement of witnesses and getting the spot photographed. He further testified that the dead body of the deceased Bharat had been preserved in the mortuary and on 01.05.2006, after post mortem, the dead body of deceased was handed over to his relatives after recording their statement Ex. PW2/A and Ex.PW4/A. He further testified that on the same day, the accused Desh Raj and Virender were arrested and personally searched vide memo Ex. PW6/B to Ex.PW6/E. He further testified that on 03.05.2006, he got the crane bearing no. HR-38M-0454 mechanically inspected vide request Ex. PW11/D and obtained the mechanical inspection report Ex. PW3/A.
17) He further testified that he also served notice upon Harpal Singh under Section 133 MV Act on 03.05.2006 and on 08.05.2006, received the reply of the same vide Ex. PW11/F stating that the accused Purshottam was driving the crane at the time of the accident. He further testified as to having arrested the accused Purshottam and personally searched him vide memo Ex. PW5/B and Ex PW5/C at which time of arrest the complainant Anil was present with injured Suraj who identified the accuse Purshottam. He further testified as to having seized the DL of Purshottam vide memo Ex. PW11/G. He further testified as to having FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 8 of 13 recorded the statement of photographer on 08.07.2006 and correctly identified all three accused in the Court. He also identified the crane as well ass to the spot in the Court through photographs Ex. P1 to P7. He also testified as to the accused Purshottam being the driver while accused Deshraj and Virender were contractors and went on to testify that he had obtained the terms and conditions of the contract executed in the name of Virender and Desh Raj Construction Company Ex PW11/H. He further testified that he had also recorded the statement of PW Raj Pal Ex PW11/I which was the true version of the statement given by the witness which was recorded by PW11 and also read over to the witness. PW11 was duly cross examined by Ld Counsel for the accused at length.
18) After prosecution evidence was closed, the statement of accused were recorded under Section 281 read with 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused who maintained their innocence but chose not to lead any defence evidence.
19) Final arguments have been advanced on behalf of the State as well as by the Ld. Counsel for the accused which have been carefully considered along with the evidence on record.
20)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, co- gent and convincing evidence and it is for the prosecution to ensure that FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 9 of 13 its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the ac- cused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
21)Since the accused have been charged with having committed an offence under Section 287/34 of Indian Penal Code, 1860, it was for the State to prove that in furtherance of their common intention, the accused knowingly or negligently omitted to take such order with the machinery in their possession ie the crane bearing number HR 38M 0454 and under their care as was sufficient to guard against any probable danger to human life from such machinery.
22) Further to prove the offences under Section 338/304A/34 of the Indian Penal Code, 1860, it was also for the prosecution to prove that due to said negligence, one labourer Suraj and complainant Anil received simple injuries whereas one labourer Bharat expired.
23) To prove its case, the prosecution has heavily relied upon the testimony of PW5 Anil from whose testimony it transpired that on 30.04.2006, when installation work of electricity pole in the area was with the help of crane number HR-38M-0454, and when Anil reached near Sky Land Public School, the driver of the crane was lifting the electricity pole with the help of wire as the same was to be installed in front of E-16 and Anil noticed that the wire and kunda/clip which was tied with FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 10 of 13 electricity pole and crane was slightly broken and defective which fact he told to the crane driver as well as to the contractor present but they did not pay heed to his request even though some other persons also told them about the same and started doing their work due to which the wire broke and the said electricity pole fell down due to which PW5/Anil sustained injury on his right hand while Suraj and Bharat came under the pole. PW5 Anil has relied upon statement Ex. PW5/A recorded by the police and he also relied upon the site plan, FIR was registered and the police also prepared the site plan at the instance of PW5. However, the veracity of the testimony of Anil could not be tested through cross-examination as he remained unserved even through the office of DCP.
24) Be that as it may, the prosecution has also relied upon the MLC ExPW7/B to prove the injuries sustained by the injured Anil. However, the MLC Ex PW7/B does not corroborate the oral testimony of PW5 Anil as to the manner in which he sustained injury as much as it is recorded in the MLC itself that the alleged history was of fall of ladder at around 3.00pm as told by the patient himself. It is not the case of the prosecution that there was any error in the MLC in recording the manner in which the injury was sustained by Anil nor explanation has been brought on record by the prosecution to explain the discrepancy in the oral testimony of PW5 Anil and the MLC Ex PW7/B as to the manner in which the injury was sustained by the injured Anil ie as to whether the same was caused due to fall of ladder or due to fall of FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 11 of 13 electric pole, which raises a doubt, the benefit of which necessarily accrues to the accused.
25) Further, the presence of the injured Anil at the spot has not been corroborated even by the other evidence led by the prosecution as even in the site plan Ex PW11/C, the exact position where the injured Anil allegedly sustained injury has not been reflected and in the absence of thereof, the Court cannot resort to conjectures, assumptions and probabilities to ascribe negligence to the accused and it also renders it unsafe to rely solely on the testimony of PW5 Anil to convict the accused.
26) No other eye-witness/injured could be produced by the prosecution to prove the factum of presence of any negligence/omission to take care by the accused in respect of the crane or as to the injury having been sustained by the inured Anil or even Suraj or as to the death of Bharat due to such negligence/omission.
27) The remaining witnesses being formal in nature could only prove the investigation carried out in this case but could not prove the factum of negligence/omission of the accused in respect of the machinery ie the crane.
Decision
28) In view of the above discussion, the prosecution has failed to prove its case beyond reasonable by leading cogent evidence. Accordingly, the FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 12 of 13 accused 1.Purshottam S/o Sh. Balbir Singh, 2.Desh Raj, S/o Late Sh. Ram Singh and 3.Virender, S/o Late Sh. Sehdev Prasad are given the benefit of doubt and are hereby acquitted of the offence under Section 287/337/304A IPC in the FIR no.397/06 PS Rohini.
29) The accused are directed to furnish personal bond in a sum of Rs.
10,000/- with one surety each in like amount in compliance of provi- sions of Section 437A of the Code of Criminal Procedure and are di- rected to be present before the Ld. Appellate Court as and when notice is served upon them.
30) File be consigned to Record Room after due compliance.
Announced in the Open Court Digitally signed
on 22.01.2019 POOJA
by POOJA
AGGARWAL
AGGARWAL Date:
2019.01.22
13:21:13 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 13 pages and each page bears my signature. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2019.01.22 13:21:18 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 397/2006 PS Rohini U/s 287/337/304A IPC State Vs Purshottam & ors. Page No. 13 of 13