Delhi District Court
State vs . Shashi Prakash Tripathi on 20 January, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. SHASHI PRAKASH TRIPATHI
FIR No. 432/04
PS: MOTI NAGAR
U/S: 287/337/304-A IPC
JUDGMENT
Sr. no. of the case : 741/2/10
Unique Case ID no. : 02401R1257052005
Date of commission of offence : 15.08.2004
Date of institution of the case : 21.02.2006
Name of the complainant : Sh. Riasuddin
Name of accused and address : Shashi Prakash Tripathi
s/o Late Sh. Gaya Prasad
r/o G-3,/124, Sector-XI,
Rohini, Delhi.
Offence complained of or proved : U/s 287/337/304-A IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date reserved for judgment : 05.01.2016
Date of judgment : 20.01.2016
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. Brief facts of the case are that on 15.08.2004 at about 03:15 PM at MCD Park, Moti Nagar near Kumar Dairy, victim/deceased Manoj Kumar and witness Riasuddin got injured (skin burns) due to spark in the transformer installed in that park. Initially both the witnesses stated that no one is responsible for the incident, however on 19.08.2004 deceased Manoj expired due to the burn injuries. Thereafter, statement FIR No. 432/04, PS Moti Nagar Page 1/13 of witness Riasuddin was recorded wherein he stated that they were injured due to the spark from electricity transformer which was without fencing. On investigation, it was revealed that present accused namely Shashi Prakash Tripathi was JE in the NDPL and was responsible to look after that transformer. It was found that present accused was negligent in maintaining the transformer due to which the accident had taken place as he had not taken sufficient measures to guard against any probable danger to human life. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served upon the accused for trial of offence U/s 287/337/304-A IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses.
4. PW1 Ravi Kathuria identified the dead body of deceased Manoj at Mortuary DDU Hospital vide dead body identification memo Ex.PW1/A and after postmortem same was handed over to PW1 vide handing over memo Ex.PW1/B. In his cross-examination it is stated by him that deceased used to work in the shop of a scrap dealer. It was also stated by him that he had taken deceased Manoj on his scooter as pillion rider to DDU Hospital from Acharya Bikshu Hospital as he was not being attended property at Acharya Bikshu Hospital.
5. PW2 HC Suresh Kumar deposed that on 19.08.2004 he was posted at PS Moti Nagar as Duty Officer from 04:00 PM to 12:00 mid night and at about 10:05 PM rukka was handed over to him by SI Mahipal Singh for registration of case FIR Ex.PW2/A. It is stated that he also made endorsement on the rukka Ex.PW2/B.
6. PW3 Dr. Uday Kumar Singh medically examined the injured on 15.08.2004 at about 04:00 PM and prepared the MLC Ex.PW3/A.
7. PW4 ASI Suresh Chand deposed that on 10.11.2004 the FIR No. 432/04, PS Moti Nagar Page 2/13 investigation of the present case was marked to him and he obtained the report of Electrical Inspector and placed the same on the case file. It is stated that he had given a notice to Mr. Yogesh Luthra, Senior Manager of NDPL to fix the responsibility of the occurrence as the transformer belonged to NDPL. It is further stated that it was disclosed by Sh. Yogesh Luthra that the present accused was responsible for the maintenance of sub-station where the transformer was fixed. It is stated that the letters of NDPL placed on record are Mark A (colly). It is stated that the charge sheet was prepared without arrest of accused and was filed in the Court.
8. PW5 Sh. Riasuddin deposed he was working in a barber shop at Moti Nagar. It is stated that on 15.08.2004 after cleaning the shop, he alongwith his friend Manoj went to MCD Park and when they were passing by the electric transformer (installed there) suddenly a blast took place in the said transformer due to which it generated sparks and the said sparking were fell on him and his friend Manoj and they received burn injuries due to the sparking in the said transformer. It is further stated that the said transformer was not properly fenced and only steel net was placed around the said transformer and it was opened from all the four corners. It is further stated that immediately thereafter, the owner of the said barbar shop came and rushed them to the hospital where they were admitted. It is stated that police came in the hospital. It is stated that the police recorded his statement Ex.PW5/A in his house after he got little recovered from the burn injuries. It is further stated that the incident occurred due to the fault on the part of the NDPL, which was responsible for maintaining the said transformer and they had instead left the said transformer opened. In his cross-examination, he denied the suggestion that he had consumed liquor on the day of the incident. He denied the suggestion that he and his friend deceased Manoj were entered the transformer unauthorizedly under the influence of liquor. He further denied the suggestion that they broke opened the door of the switch room and entered into the same.
9. PW6 Sh. Pradeep Kumar also identified the dead body of deceased FIR No. 432/04, PS Moti Nagar Page 3/13 Manoj at Mortuary DDU Hospital vide memo Ex.PW6/A.
10. PW7 Dr. L. K. Baruah deposed that on 20.08.2004 he conducted postmortem on the body of Manoj and prepared PM report no. 818/04 and same is in his handwriting and is Ex. PW7/A. It is stated that as per the postmortem report the cause of death was due to toximia associated with septicemia following burn injuries.
11. PW8 Sh. Yogesh Kumar Luthra, Additional GM, NDPL, deposed that during the course of investigation of the case he received notices from the IO and he sent replies dated 02.03.2005, 11.03.2005, 19.03.2005, 16.05.2005, 14.09.2005 and 12.08.2005. It is stated that replies bear his signatures and are Ex. P1 to P7. It is stated that in his reply dated 12.08.2005 he had stated to IO that accused was the official responsible for the maintenance of the substation in MCD park, Moti Nagar.
12. PW9 SI Mahipal Singh deposed that on 15.08.2004 he was posted at PS Moti Nagar and on that day on receipt of DD No.13A, he alongwith Ct. Shiv Pal went to DDU Hospital and collected MLC of Manoj and Riasuddin. That he made efforts to record their statements, but on that day both the injured did not make any statements to him and accordingly DD was kept pending. That on 19.08.2004 an information was received from the hospital that victim Manoj has succumbed to injuries. On that, he went to the house of another victim Riasuddin and recorded his statement, on the basis of which rukka (Ex.PW9/A) was prepared and case was registered. That on 20.08.2004 he got conducted the postmortem on the body of deceased Manoj. The request letter for postmortem is Ex.PW9/1. The brief facts prepared by him is Ex.PW9/2 and the death report is Ex.PW9/3. After postmortem, he recorded the statement of relatives of deceased and handed over the body to the relatives vide receipt Ex.PW1/B. On 22.08.2004 he prepared site plan Ex.PW9/B and took the photographs of the place of occurrence with his own camera. The photographs are Ex.PW9/C (colly. 7) and negatives are Ex.PW9/D (colly). It is stated by him that on 02.09.2004 he wrote an application (Ex.PW9/E) to Inspector FIR No. 432/04, PS Moti Nagar Page 4/13 of Factories for inspecting the place of occurrence. It is stated by him that Sh. Manoj Nagar, AEI inspected the place of occurrence. In his cross-examination it is accepted by him that he had written in the rukka that both the injured refused to give any statement despite the fact that they were fit to give statement. It is also stated by him that injured apprised him that no one was responsible for the incident. It is stated by him that the site plan was prepared by him that the site plan was prepared at the instance of injured Riasuddin.
13. PW10 Sh. Manoj Nagar, AEI and Sh. Satpal Singh, Electrical Overseer, went to the place of occurrence and inspected the place of occurrence in the presence of SI Mahipal Singh and Sh. S.K. Sharma, Zonal Manager. It is stated that after inspection, Sh. Manoj Nagar prepared a detailed report, which is Ex.PW10/A. In his report he gave the details of the inspection carried out by him. It was found by him that the provisions of Indian Electricity rules have not been complied by the NDPL Staff i.e. the electrical installation of the said sub-station installed at MCD Park, Moti Nagar, Delhi had not been found protected, worked and maintained in such a manner to ensure the safety of human being etc. in contravention of the provisions of rules 29(1). It is stated that the live parts at the rear side of the said Oil Circuit Breaker found so exposed and accessible as to cause danger in contravention of the provisions of Rules 50(1) (f) of the rules. In his cross-examination, he could not tell name of the photographer who had taken photographs of the spot. It is stated by him that none provided the keys of the sub-
station to him as the same was not found locked at the time of inspection. It is accepted by him that a person can be electrocuted and can suffer the injuries even from the distance of 2-3 inches from the exposed live feeder/bus bar. It is stated by him that the iron fences were provided to the sub-station in question. It is stated by him that the danger board was not displayed on the sub-station in question, otherwise he would have mentioned the same in his report. It is accepted by him that the distance between sub-station and fencing are generally kept/maintained larger than the prescribed/recommended FIR No. 432/04, PS Moti Nagar Page 5/13 safe distance for ensuring the effective safety. It is stated by him that the distance between the fencing and the probable place of electrocution from the live feeder/bus bar was approximately 1 meter. It is accepted by him that such distance cannot be less than 1 meter in any sub-station. It is accepted by him that only the authorized person from the concerned department can get the excess in the fencing portion of the sub-station. It is voluntarily stated by him that only the authorized person should enter the fencing portion of the sub-station.
14. PW11 Sh. Satpal Singh, Deputy Electrical Inspector also deposed on the same lines as PW10. It is further stated by him that at the site they observed that a three way ring main unit was found installed in a metallic kiosk which was having no locking arrangement. In his cross- examination it is stated by him that the flash over distance in the present case was about one meter. It is accepted by him that there was provision for locking the kiosk, however, he denied the suggestion that kiosk was locked. It is stated by him that a person can be injured only when he enters into the flash over distance. It is accepted by him that the kiosk was in order and sufficient protection was provided by the NDPL to avoid any kind of accident. It is also accepted by him that kiosk was erected near the sub-station to avoid entry of any unauthorized person. It is accepted by him that originally the rear end covers of all the three OCBs (Oil Circuit Breaker) were installed but were found to be missing at the time of inspection. It is stated by him that he cannot say when those covers were removed. It is stated by him that he cannot comment on the status/condition of the sub-station and the OCBs on the day of alleged accident. It is accepted by him that as a result of inspection he cannot conclusively say as to how the accident had taken place.
15. No other witness was left to be examined, hence, PE was closed.
THE DEFENCE :
16. Statement of accused was recorded U/s 313 Cr.P.C wherein he pleaded innocence and stated that the deceased and Riasuddin were FIR No. 432/04, PS Moti Nagar Page 6/13 drinking at the spot and even had broken the lock of sub-station to commit theft. It is further stated that he is not responsible for incident in question. He opted to lead defence evidence and have examined three witnesses in his defence.
17. DW-1 Sh. Prashant Kulshretha, Sr. Manager HR from Tata Power Delhi, Distribution Ltd. Exhibited on record the job description of ZRDMO, ZSO and ZM as Ex. DW1/A, DW1/B and DW1/C.
18. DW-1 Sh. Nikhil Pathak (wrongly mentioned as DW1), HOG (Contracts), TPDDL exhibited on record the Maintenance agreement dated 07.05.2004 between NDPL and the Imperial Electric Company, which is Ex.DW1/A.
19. DW-3 Sh. Sudesh Sharma stated that he is posted as AGM, MMG, TPDDL. It is stated that in the year 2004 he was posted as Zonal Manager in Zone 1301 of TPDDL. The company has hired outsource agencies for maintenance, up keep and safety of its installations like transformers, sub station and LT/HT/Street Lights. It is further stated that in the year 2004 he was the incharge of entire Moti Nagar and Kirti Nagar area. The installations mentioned above in the area of Moti Nagar were also outsourced. It is stated that he has seen the agreement Ex.DW1/A and confirmed that the said agreement was relevant for the said period mentioned therein. As per the terms and conditions the complete safety of the workmen, workers/public and equipments etc. were the responsibility of the outsource agency.
THE ARGUMENTS:
20. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 287, 337 and 304-A IPC are proved beyond doubt.
21. On the other hand, Ld. counsel for accused has argued that there is no legally admissible evidence against the accused. It is stated that the only eye witness has not supported the case of prosecution. Hence, accused deserves to be acquitted.
FIR No. 432/04, PS Moti Nagar Page 7/13THE FINDINGS:
Offence U/s 287, 337 and 304-A IPC:
22. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
23. The prosecution in this case had to prove the following:
1. Firstly, that the accused was in possession of the machinery or the machinery was under his care;
2. Secondly, the accused had omit to take such order with any such machinery as is sufficient to guard against any probable danger to human life from such machinery; and
3. Thirdly, death of the deceased and injuries to the injured were caused due to the rashness or negligence of the accused in omission to take such order with the machinery.
24. In the present case, injured PW5 Sh. Riasuddin has stated that a sudden blast took place in the transformer which generated spark and the said sparking fell on him and the deceased due to which they sustained burn injuries. It is further stated by him that the said transformer was not properly fenced and only steel net was placed on the said transformer. PW10 Assistant Electrical Inspector has mentioned in his report that electrical installation of the sub-station had not been found protected and maintained in such a manner to ensure safety of human being. It is also stated by him that at the rear side of the installation the OCB were found so exposed and assessable to cause danger. It is stated by PW8 Sh. Yogesh Kumar Gupta, the then Senior Manager (D), Moti Nagar, NDPL stated that in his letter dated 12.08.2005, he apprised the IO that the present accused was the official responsible for maintenance of the sub-station in MCD Park, Moti Nagar. However, testimony of these witnesses are not sufficient enough to prove the allegations against the accused beyond reasonable doubt due to following reasons:-
a). From the testimony of PW10 Sh. Manoj Nagar, it is apparent that electrical installation at the sub-station were inside the fence/kiosk FIR No. 432/04, PS Moti Nagar Page 8/13 (steel net). It is also stated by him that flash over distance of the live feeder/bus bar is approximately one meter. It is also accepted by him that the fence should be placed at least at a distance of one meter from the live feeder/bus bar. In the present case there was iron fence around the sub-station and as per the prescribed limit same should have been installed at a distance of one meter as that is the approximate area of flash over. Now two questions arise whether the injured were outside the fence or inside the fence. If the injured were outside the fence then two question arise whether the fence were at a distance of one meter or not. If the fence were not at a clear distance of one meter then it would be the responsibility of the officials under whose supervision the fence were installed at the service station as he failed to put the fence at a safe distance from the live feeder/bus bar and in such situation present accused cannot be held responsible. Similarly, if the injured who were major and sound minded person himself came inside the fence and sustained injuries then again the present accused cannot be held responsible as the accident would have taken place due to the contributory negligence on the part of the injured persons. Further if the fence was installed at a distance of one meter from the live feeder and still the spark had gone outside the sub-station then such situation would have been an extraordinary situation, thus even in such situation present accused cannot be held liable for the injuries sustained by the injured persons as such situation was outside the purview of reasonable danger.
b). The present incident had taken place on 15.08.2004. It is stated by PW9 IO/SI Mahipal Singh that on 15.08.2004 itself he met both the injured, who were in fit state to make statement but both of them refused to give any statement and stated that no one was responsible for the incident. It was only after the death of injured Manoj that FIR in the present case was registered. The fact that injured persons were not willing to give any statement on the day of incident raises a doubt that they might themselves were negligent and due to their negligence the incident in question had taken place. It is to be noted that at the time of FIR No. 432/04, PS Moti Nagar Page 9/13 incident both the injured persons were under influence of alcohol as observed in their MLCs.
c). The fact that both the injured persons were under the influence of alcohol and deceased Manoj was employed with a scrap dealer makes the defence of the accused probable that both the injured persons unauthorizedly entered into the fence and were touching the parts of sub-station in order to steal some valuable parts which may be sold as scrap. This defence of the accused also gets strength from the fact that initially the injured were not willing to give statement regarding the incident in question.
d). In the present case the sub-station was inside a kiosk which was erected to avoid entry of any unauthorized person. Even if it is presumed that the kiosk was unlocked at the time of incident in question and due to which the injured persons entered into the sub-
station still it is not a fault on the part of the accused which may held him to be liable for commission of offence U/s 287/304-A IPC as the injured persons were not kids rather they were major and sound minded persons. A major and sound minded person can be presumed to be aware that it is dangerous to unauthorizedly enter inside a sub-station. From the photographs of the sub-station, it is also apparent that a "danger" sign was installed there despite that the injured persons had taken risk of entering into sub-station. It has already been observed that if the injured had not entered the sub-station then the incident would fall under the category of extraordinary as in the present incident the spark had traveled beyond one meter from the live feeder which is improbable.
e). The only document to connect the present accused with the accident in question is the letter dated 12.08.2005 Ex.P7 wherein it was stated by Sh. Yogesh Kumar Luthra that present accused was responsible for maintenance of the sub-station. However, the same witness PW8 Sh. Yogesh Kumar Luthra in his earlier letters which are also on record as P1 to P6 mentioned that none of the official of NDPL was responsible for the incident. In his defence evidence, the accused FIR No. 432/04, PS Moti Nagar Page 10/13 examined DW1 Prashant Kulshreshtha, who proved on record the job description of ZRDMO, ZSO and ZM on record. It is to be noted that present accused was ZRDMO at the time of accident in question. As per the job description all three of them were responsible for maintenance of electrical equipments in the zone. There is no evidence on record to show why the present accused has been singled out and held to be solely responsible for maintaining the sub-station in question.
f). DW Nikhil Pathak and DW3 Sudesh Sharma, both proved on record an agreement between NDPL and Imperial Electric Company as Ex.DW1/A. The agreement was executed on 07.05.2004 and the same was in respect of Moti Nagar district. As per the agreement Imperial Electric Company was responsible to undertake the full responsibility in respect of works of the preventive, predictive, break-down execution work for rectification and routine maintenance for HT and LT network, sub-stations feeder pillars, street light maintenance etc. From this document, it appears probable that Imperial Electric Company was responsible for the work of maintenance of the sub-station and not the present accused.
g). It is accepted by PW11 Satpal Singh, Deputy Electrical Inspector that the kiosk in question was in order and sufficient protection was provided by the NDPL to avoid any kind of accident. It is also accepted by him that kiosk was erected near the sub-station to avoid entry of any unauthorized person. It is also accepted by him that originally the rear end covers of all the three OCBs were installed but were found to be missing at the time of inspection. From these facts the defence of the accused that certain unauthorized public persons used to steal salable parts of the service station and the covers of OCBs may also be stolen by any such person appears to be probable.
h). It is to be noted that concept of "negligence" in civil law is different from the culpable negligence punishable as an offence. In order to hold a person guilty under Section 304-A IPC, rash or negligent act must be direct or proximate cause of death. The offence cannot be presumed merely because of an unfortunate incident. Question whether the FIR No. 432/04, PS Moti Nagar Page 11/13 conduct of an accused amounts to culpable rashness and negligence depends upon as to what amount of care and circumspection which a prudent and reasonable man would consider it sufficient in the circumstances of the case. In order to establish criminal liability, the facts must be such that the negligence of the accused prima facie show utter disregard to life and safety of others so as to amount to crime. On the other hand in the present case if the spark from the live feeder had traveled beyond one meter i.e. outside the fence then it cannot be held that accused has failed to take such amount of care and circumspection as required, as even the electrical inspectors PW10 and PW11 have agreed that fences are put at a distance of one meter as that is generally the area to be guarded from flash over. Putting fence at a distance of one meter is the sufficient care and circumspection which a prudent and reasonable man would consider in a case of a sub-station and in the present case such fences were erected around sub-station, hence the rashness or negligence if any on the part of the present accused cannot be termed as culpable negligence.
25. In view of the above stated discussion it can be safely held that the prosecution has failed to prove beyond reasonable doubt that present accused was responsible for the maintenance of the sub-station and he negligently omitted to take such care with the sub-station as sufficient to guard against any probable danger to human life. The fact that both the injured persons were under the influence of liquor and initially they were not blaming anyone and not willing to initiate any proceedings against anyone also raises a serious doubt that the injured persons themselves were negligent in their conduct due to which the accident in question had taken place.
26. At this stage it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit FIR No. 432/04, PS Moti Nagar Page 12/13 whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
27. Thus, in the considered opinion of this Court, the prosecution could not prove beyond reasonable doubt the guilt of the accused. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused Shashi Prakash Tripathi is hereby acquitted of all the charges in the present case.
28. Accused has furnished fresh bail/surety bonds in terms of Section 437-A Cr.P.C. The same has been accepted. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 20.01.2016 MM-04 (WEST)/DELHI
Containing 13 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 432/04, PS Moti Nagar Page 13/13