Delhi District Court
State vs . Pradeep Mittal on 21 June, 2019
STATE VS. PRADEEP MITTAL
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No.75/2006
PS : Anand Vihar
U/S 304A IPC
State vs. Pradeep Mittal
a) ID No. of the case : 81110/2016
b) Date of Institution : 02.12.06.
c) Date of commission of offence : 05.05.2008
d) Name of complainant : SI Bashir Ali
e) Name of the accused, and : Pradeep mittal
parentage and address S/o Sh. Hari Kishan
R/o B.D8, Vishakha
Enclave, Pritampura,
Delhi.
f) Offence complained of : U/S 304 A IPC
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : 21.06.2019
i) Final order : Acquittal.
j) Date of such Order : 21.06.2019
JUDGEMENT
1. The accused Pradeep Mittal is facing trial with respect to offense under section 304A of Indian Penal Code the notice of which under section 251 of Code of Criminal Procedure was given to the FIR NO.75/2006, PS Anand Vihar Page 1/14 STATE VS. PRADEEP MITTAL accused on May 5th 2008. The allegations against the accused was that on February 8, 2006 at about 4:30 PM behind East End Club, CBD ground the accused did not take reasonable care or precaution while executing the work of construction of boundary wall at the said property the construction work being awarded by Guru Govind Singh Indraprastha University, left a pit which was filled with huge quantity of water; unattended without any fence /boundary as would have been sufficient to guard against any probable danger to human life and due to the rash and negligent manner in guarding the said pit a child, namely Rohit fell down and drowned in the pit and died.
2. The case of the prosecution is that on February 8, 2006 the investigating officer; SI Bashir Ali received DD no. 17 A after which the investigating officer along with Constable Hakim Khan reached at the spot that was behind East End Club, CBD ground. There investigating officer found that the construction work was going on and the investigating officer also came to know that a child had fallen in the pit filled with water who had already been taken to hospital by a PCR van. The investigating officer did not find any eyewitness at the spot. Thereafter the investigating officer along with Constable went to Dr. Hedgewar hospital but there also the investigating officer did not find any eyewitness. The FIR NO.75/2006, PS Anand Vihar Page 2/14 STATE VS. PRADEEP MITTAL investigating officer collected the MLC of the deceased Rohit who was declared as brought dead by the doctor. The investigating officer prepared the rukka and got the case FIR registered under section 304A of Indian Penal Code and initiated the investigation into the case. The investigating officer got the pit in which the deceased Rohit had drowned measured and found that the pit was fully filled with water at that time and there was no boundary wall around the pit. The investigating officer recorded the statement of the witnesses including the person who had made the call to PCR on telephone number 100; got the photograph of the site clicked got the postmortem of the dead body of the deceased Rohit conducted. The investigating officer also investigated with respect to the construction work which was going at the spot and found that the construction of the boundary wall of the account of Guru Govind Singh Indrapastha University was going on at the spot and that the construction of the said boundary wall was awarded to affirm that was Messrs. Jyoti Swaroop Mittal by the executive engineer of the said University. The investigating officer met the executive engineer collected the necessary documents and came to know that it was the accused who was the main person of the firm which was constructing the boundary wall of the University. The investigating officer completed the investigation and filed the FIR NO.75/2006, PS Anand Vihar Page 3/14 STATE VS. PRADEEP MITTAL chargesheet against the accused.
3. In order to prove the allegation against the accused the prosecution has examined the following witnesses; i. Shri Surender Kumar as PW1 who was the security guard deputed by the University where the construction of the boundary wall was going on at the date of the incident. ii. Shri Raju Shahi as PW2 who was the father of the deceased Rohit.
iii. Shri Naresh Chaudhary as PW3 who was the person who had made the telephone call to the police at telephone number 100 person to which the police had come at the spot where the deceased Rohit had drowned in the pit. iv. ASI Birju Singh as PW4 who was the duty officer on the date of incident that is February 8, 2006 and had registered the case FIR on the basis of rukka which was sent by the investigating officer SI Bashir Ali exhibited as Ex. PW4/A. v. Shri SK Sharma as PW5 who was the executive engineer of Guru Govind Singh Inderprastha University who had executed the agreement person to which the construction work of boundary wall on the University campus, Surajmal Vihar, near CBD ground was awarded to Messrs. Jyoti Swaroop Mittal.
FIR NO.75/2006, PS Anand Vihar Page 4/14STATE VS. PRADEEP MITTAL vi. Dr. Akash Jhanee as PW6 who had conducted the postmortem of the dead body of the deceased Rohit And proved the postmortem report as PW6/A. vii. Shri Gautam Kumar Saxena as PW7 who was the photographer and had taken the photographs of the site where the deceased Rohit had drowned in a pit on the instructions of the investigating officer SI Bashir Ali.
viii. ASI Hakim Khan as PW9 who was the police official who had gone at the site after the receipt of the DD giving information regarding the burning of a child in a pit and had taken some part in the initial investigation of the case and by the investigating officer SI Bashir Ali. ix. Shri Gautam Kumar Saxena has again been examined as PW10 who was early examine as PW7.
x. Retired SI Bashir Ali as PW11 who was the investigating officer in the present case and had filed the chargesheet.
4. After all the witnesses of the prosecution were examined the statement of the accused was recorded under section 313 of Code of Criminal Procedure wherein all the incriminating evidence which had come on record during the deposition of the witnesses of the prosecution were put to the accused and the accused was asked FIR NO.75/2006, PS Anand Vihar Page 5/14 STATE VS. PRADEEP MITTAL for his explanation. The accused denied all the incriminating facts and stated that the accused had been falsely implicated. That the accused was not even present at the spot where the deceased Rohit had fallen pit. The accused also stated that it was the duty of the security guard appointed by the Guru Govind Singh Indrapastha University to look after the property. That the firm of the Accused namely Messrs. Jyoti Swaroop Mittal had sub contracted the work for construction of the boundary wall to Messrs. NK Builders represented by Mr. Kamal Suri on September 9, 2005 and since then it was Mr. Kamal Suri who was in charge of the work of construction of boundary wall and was present at the site throughout thereafter. The accused also stated that the pit in question was not dug either by the firm of the accused or the sub contractor of the accused NK Builders. As per the accused, the pit in question was naturally formed by depressions over the property and the water had filled due to rain in the pit. That the water of the pit was never used for the construction of the boundary wall either by the accused or his sub contractor. As per the accused the deceased had surreptitiously entered upon the site in question and the death of the deceased was due to the accident/misadventure and not due to any rash or negligent act of either the firm of the accused or by Messrs. NK Builders. The accused further stated that Guru FIR NO.75/2006, PS Anand Vihar Page 6/14 STATE VS. PRADEEP MITTAL Govind Singh Indrapastha University had only awarded the contract for the purpose of the construction of boundary wall whereas the entire property was of around 1015 acres and the same was in possession of the University as their office was also running on the said property and the property was having many depressions naturally formed and that the firm of the accused was not given any contract to fill up the plates on the property. As per the contract awarded by Guru Govind Singh Indrapastha University the firm of the accused was only required to take precautions safety measures etc. only with respect to the area where the construction of the boundary wall was in progress and not with respect to the entire property. On behalf of the accused no witness in his defense has been examined.
5. I have heard the arguments and perused the record.
6. The deceased Rohit who at the time of his death as per the MLC Ex. D3 was about 8 years and as per the deposition of father of the deceased Shri Raju Shahi examine as PW2 the deceased who was handicapped by one hand along with other children had come to CBD ground for playing and that PW2 was informed by someone that the deceased had fallen in the pit and drowned. As per examination in chief of PW2 the pit in which the son of PW2 had drowned, "...dug to store the water and thereafter water was taken FIR NO.75/2006, PS Anand Vihar Page 7/14 STATE VS. PRADEEP MITTAL out for the purpose of making constructing materials".
7. In the present case in order to prove the offense under section 304A of Indian Penal Code against the accused the prosecution is required to prove that the pit in which the deceased had drowned and died was dug by the accused; that it was the accused who left the pit filled with huge quantity of water unattended without any fence /boundary wall and that it was the duty of the accused to put fence/boundary wall around the pit; that the accused was either rash or negligent in taking safety precautions with respect to the because of which the deceased Rohit had fallen in the pit and died by drowning.
8. No witness of the the prosecution has proved the fact that it was the accused/or on his instructions or for his benefit that the pit in which the deceased had drowned was dug by the accused or was used for the purpose of boundary wall on the property of the Guru Govind Singh Indrapastha University. Except, that it was PW2 who was the father of the deceased who deposed that the pit was dug to store water and the same was used for the purpose of making construction materials however without any corroboration it would be unsafe to rely upon the said testimony when from the cross examination of PW2 it has come on record that certain money was paid to the father of the deceased and that the father of the FIR NO.75/2006, PS Anand Vihar Page 8/14 STATE VS. PRADEEP MITTAL deceased had demanded from one Mr. Kamal Suri who was the subcontractor of the accused 10 rickshaws indicating that PW2 is an interested witness and has motive to depose against the accused. In fact PW5 Shri SK Sharma, executive engineer who had awarded the work with respect to the construction of boundary wall to the firm of the accused stated that the site where the firm of the accused had to undertake the construction of boundary wall had the natural topography and that, "The place where the incident had occurred was having a natural sloping which could shape of form of saucer at the time of grant of award to Messrs. Swaroop Mittal. If water flows on the same, it could come late over there". There is no reason to doubt the deposition of PW5 and it may further be stated that the father of the deceased PW2 deposed that prior to the day of incident there had been rain in the area. The fact of rain taken with the deposition of PW5 that there was natural slope at the spot which could have been filled by water it is probable that the pit where the deceased had drowned was not dug by the accused for any purpose relating to the construction of the boundary wall.
9. As per the agreement executed between PW5 on behalf of Guru Govind Singh Indrapastha University and the firm of the accused exhibit PW5/A there is no clause with respect to digging/filling of FIR NO.75/2006, PS Anand Vihar Page 9/14 STATE VS. PRADEEP MITTAL any pit and from clause 5 of the said contract it appears that all and any construction work which the firm of the accused had to do was with respect to the construction work which the firm of the accused was to carry and not with respect to the entire property of Guru Govind Singh Indrapastha University.
10.When it has not been proved by the prosecution that the pit in which the deceased had drowned was dug by the accused it cannot be said that there was any duty upon the accused to construct any safety structure around the pit. It may further be stated that the spot where the deceased had drowned was not a public throughway but it was the private property of Guru Govind Singh Indrapastha University and if anybody went on that property without the permission of the University it would have been trespass and as per law the owner of the property though cannot consciously make the property dangerous/lifethreatening for the trespasser but at the same time the owner of the property does not owe any duty of care qua the trespasser. If the trespasser commits the trespass the trespasser commits it at his own risk.
11.The Ld. Addl. PP for the State has referred to the judgment of the Hon'ble Supreme Court in Cherubin Gregory v. State of Bihar AIR 1964 SC 205 to argue that trespasser is not an outlaw and the owner of the property is supposed to take care in a such manner FIR NO.75/2006, PS Anand Vihar Page 10/14 STATE VS. PRADEEP MITTAL that death is not caused even to the trespasser. The facts of the Cherubin Gregory (supra) is distinguishable from the facts of the present case; in the said case the owner of the property knowingly had put the naked electricity wire with the knowledge that the people were using his latrin because of which one person who had trespassed into his property had died. In the present case there is nothing on record to prove that it was the firm of the accused which had dug the pit or the pit was dug in order to deter people from using the property.
12.From the deposition of PW3 in his crossexamination it appears that the pit was existing near the route/rasta for going to the park through the property of the group Govind Singh University and it is probable that the deceased along with other children was going to the park through the said route and might have fallen in the pit because the route could have been slippery here it may be stated that exactly what was the manner in which the accident/falling of the deceased in the pit had occurred has not been deposed to by any of the witnesses of the prosecution. Further if any person is doing any legitimate work in his property which might be dangerous or hazardous and without the knowledge and the person of such person any person trespass into such property and dies; to prosecute or to punish the owner of the property for rash and FIR NO.75/2006, PS Anand Vihar Page 11/14 STATE VS. PRADEEP MITTAL negligence would be too preposterous.
13.The gravamen of allegation under section 304A of Indian Penal Code is in the rashness or negligence in driving a vehicle. In other words doing of a rash or negligent act, which causes death, is the essence of section 304 Indian Penal Code. Under section 32, Indian Penal Code, the act includes 'illegal omission'. Therefore, if an illegal omission occurs as a result of negligence, which results in death, then this section will apply'
14.The term; 'negligence' as used in this section does not mean mere carelessness. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the Indian Penal Code provides; 'nothing is an offence which is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and caution'. Section 304A of Indian Penal Code does not punish for mere accident, misfortune or error of judgment. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this section.
15.In order to impose criminal liability under section 304A of Indian Penal Code, it is essential to establish that death is the direct result of the rash and negligent act of the accused. It must be causa FIR NO.75/2006, PS Anand Vihar Page 12/14 STATE VS. PRADEEP MITTAL causans the immediate cause, and not enough that it may be causa sine qua non proximate cause. (Ref. Suleman Rahiman Mulam v. State of Maharashtra AIR 1968 SC 829; Ambalal D Bhatt v State of Gujarat AIR 1972 SC 1150)
16. In the present case how the accused was either rash or negligent with respect to the pit in which the deceased had drowned has not been proved by the prosecution. The prosecution has not been able to prove that it was the accused/or his firm which had the pit dug for the construction of boundary wall over the property of the Guru Govind Singh University or that the accused or his firm had any duty to fence/construct boundary wall around the pit in which the deceased had drowned.
17. From the materials on record it appears that the pit was a natural formation in which because of the rain on the previous day what had got filled. The deceased along with her children and public was using the thoroughfare going towards the park taking away to the property of Guru Govind Singh Indrapastha University which was near the pit and the deceased might have fallen in the pit and being handicapped was not able to protect/save himself from drowning. The investigating officer or to have examined the other children who as per deposition of PW2 had gone along with the deceased so that clear picture could have come before the court. Be that as it FIR NO.75/2006, PS Anand Vihar Page 13/14 STATE VS. PRADEEP MITTAL may, on the basis of the deposition of the witnesses examined by the prosecution and discussion herein above the court is of the opinion that the prosecution failed to prove beyond reasonable doubt that the accused was either rash or negligent because of which the deceased Rohit had expired by drowning in a pit filled with water. Accordingly the accused is hereby acquitted for the offense as charged. The case of the legal heirs of the deceased Rohit is recommended for compensation as per the provisions of applicable compensation scheme. VIJAY Digitally signed by VIJAY KUMAR JHA KUMAR Date: 2019.06.26 JHA 12:41:55 +0530 Dictated & Announced in the Open Court (VIJAY KUMAR JHA) on 21.06.2019 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.75/2006, PS Anand Vihar Page 14/14