Delhi District Court
State vs . Suresh Prasad on 29 April, 2019
IN THE COURT OF MS. SNIGDHA SARVARIA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State Vs. Suresh Prasad
FIR No. 187/10
PS: GTB Enclave
U/s 287/304A IPC
a. Comp. ID No. of the case : 76223/2016
b. Date of commission of offence : 02.08.2010
c. Date of institution of the case : 24.12.2011
d. Name of complainant : Sh. Suraj Pal Singh
S/o Sh. Pana Lal
e. Name of accused : Suresh Prasad
S/o Sh. Ram Udhar Prasad
R/o H. No. 459, Village Tahirpur,
Delhi.
f. Offence complained of : U/s 287/304A IPC
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 15.03.2019
i. Final order : Acquittal
j. Date of judgment : 29.04.2019
FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 1 of 16
JUDGMENT
FACTS IN BRIEF :
1. Briefly stating, the case as per prosecution is that on 02.08.2010 at H. No. 1488, Second Floor, Janta Flat, GTB Enclave, Delhi, accused Suresh Prasad was working as contractor for polishing the floor and employed Dhruv Mandal for carrying out the polish of the floor and accused knowingly or negligently omitted to take care/provide the machine in a proper order as is sufficient to guard against probable danger to human life and safety from the machine and as a result of electrocution on the above said date Dhruv Mandal working on the polish machine expired and thus, committed offence punishable U/s 287/304A IPC.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 287/304A IPC was framed on 30.08.2012. Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined twelve witnesses. PW1 is complainant Suraj Pal Singh, PW2 is Pradeep Kumar, owner of the house, PW-3 is SI Mariyamm, PW4 is Prahlad Mandal, elder brother of deceased, PW-5 is brother of deceased/Kapil FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 2 of 16 Dev Manal, PW-6 is Alok Verma, Electrical Mechanical Expert, PW-7 is MHC(M)/ ASI Naresh, PW-8 is photographer/HC Sanjay Kumar, PW-9 is In-charge Mobile Crime Team/Inspector U. Balashankaram, PW-10 is Ct. Sunil Kumar, PW-11 is Ct. Irfan Ahmed, and PW-12 IS Retd. SI Sudesh Pal.
4. Statement U/s 294 Cr.P.C. of accused was recorded on 07.12.2017 whereby he did not dispute MLC of deceased Dhuruv Mandal (Ex. A1) and PM report of deceased Dhuruv Mandal (Ex. A2). Thus, the witnesses for said documents were not summoned.
5. Statement of accused u/s 313 Cr.P.C was recorded on 25.01.2019 wherein accused deposed that he was not working as a contractor and deceased was not working under my employment and allegation which have been levelled against him are incorrect. Accused further stated that it is a false case and registered against him at the instance of IO without any proper investigation and he has been falsely implicated by the IO. He stated that IO came to his locality at Tahirpur and asked the accused to give information to the deceased's native place and accused accordingly gave intimation to the deceased's family at his native place in Village Tariya, PS Saharghat, Distt. Madhubani, Bihar and without any investigation he has been implicated. Accused opted not to lead defence evidence. Thus, defence evidence was closed and final arguments were heard.
FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 3 of 16
6. I have heard the arguments of Ld. APP for the State as well as of ld. Counsel for accused. I have also gone through the evidence on record.
7. At this juncture it is relevant to consider the relevant provisions of law, which are as under:
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 with both.
304-A IPC, says:
"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".
8. The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash, or negligent act of the accused. To prove the charge under Section 304A IPC, it is necessary to establish that the accused, acted in a negligent manner in not taking reasonable care while getting the work of floor polish done from the deceased Dhruv Mandal through machine and FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 4 of 16 caused the death of deceased due to electric shock.
9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
10. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not.
11. Lord Atkin in Andrews v. Director of Public Prosecutions (1937) AC 576 at p.583 : 2 All ER 552) observed as under:
FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 5 of 16 "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death, caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
12. "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. (AIR 2009 SUPREME COURT 1621 "State of Karnataka v. Muralidhar")
13. In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it was held that :
"where negligence is an essential ingredient of the offence, the negligence to be established by the FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 6 of 16 prosecution must be culpable or gross and not the negligence merely based upon an error of judgment."
14. In Kuldeep Singh v. State of Himachal Pradesh-AIR 2008 SUPREME COURT 3062 , it was held as under:
7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 7 of 16 result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows :
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted :
FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 8 of 16 "Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' 'gross' or 'culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself."
11. "Negligence", says the Restatement of the Law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 9 of 16 Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
12. In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it was held that "where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) All ER 552 simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case."
13. According to the dictionary meaning 'reckless' means 'careless', 'regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs (1977) 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 10 of 16 the act but nevertheless continues in the performance of that act.
14. In R. v. Caldwell (1981) 1 All ER 961, it was observed that :-
"Nevertheless, to decide whether someone has been 'reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not he deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
15. The decision of R. v. Caldwell (supra) has been cited with approval in R. v. Lawrence (1981) 1 All ER 974 and it was observed that :
"...... Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 11 of 16 consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it".
16. The above position was highlighted in Naresh Giri v. State of M.P. [2008(1) SCC 791].
15. PW1 Suraj Pal Singh stated that he had given contract to accused Suresh Prasad for furnishing of floor and he later came to know that a labour became unconscious due to fault of machine. He denied that police had recorded his statement. He stated that work was settled with the accused for Rs. 10,000/- and PW1 gave Rs. 500/- as advance to the accused. He stated that he had told accused that work shall be his responsibility and accused accepted it. He stated that the accused had brought deceased for furnishing tiles at the 7 th floor in the room in the presence of PW1 and his son PW2 Pradeep Kumar. He deposed that deceased told accused that 'yeh khatre ka kaam hai. Current bhi aa sakta hai.' To which accused said 'aisa kuch nahin hota, rozana he kaam karta hai.' He denied that deceased had asked for some safety like rubber shoes, hand gloves etc from the accused. He denied that his son Pradeep PW2 was present to supervise the work and was present at the spot. He stated that another thekedaar Badri was working on the ground floor and affixing tiles on the wall. He FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 12 of 16 deposed that deceased died due to electrocution resulting from rash and negligent act of the accused. PW1 was declared hostile by the prosecution. The testimony of PW1 can always be used against the prosecution.
16. PW2, son of PW1, has deposed that when after deceased was given work by the accused to furnish tiles of the room on the II floor he had gone to the ground floor of the house where thekedaar Badri was putting tiles on the wall, whereas in this regard PW 1 had stated contrary. Similarly, there is contradiction with respect to deceased asking for safety equipments rubber shoes and gloves from the accused in the testimonies of PW1 and PW2.
17. Apart from the testimony of PW1 and PW2 there is nothing on record to show that accused was a thekedaar. Why thekedaar Badri was not examined or made a witness by the IO is not comprehensible and raises serious doubts with respect to the testimony of prosecution witnesses especially PW1 and PW2 since it cannot be ruled out that the construction and furnishing work was going on in their premises and thus they are interested witnesses.
18. Thekedaar Badri, who was working on the ground floor of the same building as the spot of incident should have been examined to prove that deceased was working for the accused as according to the FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 13 of 16 testimony of PW4 Prahlad Mandal, brother of the deceased, who had deposed that his brother/deceased Dhruv Mandal was working independently and was not connected with anyone. Why any independent witness to prove that accused was called by complainant as thekedaar or as to whether accused works as thekedaar/contractor/nature of job of accused has not been examined by the prosecution has not been explained especially since accused in his statement under S. 313 CrPC has denied that he was working as a contractor and deceased was his employee at the relevant time.
19. Also, If rubber gloves and shoes were not provided then deceased could have denied to work as he was working independently as per his brother PW4.
20. Further, PW6 proved his inspection report of the machine as Ex PW6/B wherein he has opined that on electrical inspection of machine Ex P1 'motor check karne par earth pai gayi jisse pathak ghisayi karnewali puri machine mien current paya gaya machine body make win right colour orange'. The IO has done no investigation with respect to ownership of machinery. Also, how the defect in machine Ex P1 is attributable to accused is not explained by the prosecution.
21. As per post mortem report 1088/10 of deceased Dhruv Mandal Ex A2 the opinion regarding cause of death was reserved until FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 14 of 16 the report of the visceral chemical analysis report from forensic science laboratory. The Forensic Science Laboratory Report of the viscera sent for examination was filed alongwith the supplementary chargesheet but was not tendered in evidence. As per the said Forensic Science Laboratory Report, which was given on the basis of post mortem report of deceased Dhruv Mandal; MLC no. 3526/10 of GTB Hospital and FSL report no. 2010/C-4676 has been 'After analyzing the above said documents the final opinion to the best of my knowledge is 'inconclusive'. The deceased had sustained 6 external injuries and the intense congestion of the organs was suggestive of poisoning. Even though vide FSL report no. 2010/C-4676 no common poisons were detected the possibility of poisoning by 'rare components' cannot be ruled out.' This opinion in itself is contrary to the case set up by the prosecution and demolishes the entire case of the prosecution. The very fact that this FSL report and opinion were not brought/tendered in evidence by the prosecution raises an adverse inference with respect to the case set up by the prosecution and can be used against the prosecution since have been filed by the prosecution on record with the supplementary chargesheet.
22. In view of the foregoing discussion, the accused deserves benefit of doubt.
23. In the facts and circumstances of the case, clearly, FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 15 of 16 prosecution has failed to prove that any act of the accused was rash and negligent resulting in the death of deceased Dhruv Mandal and thus, it is held that prosecution has not been able to establish its case beyond reasonable doubt against the accused with respect to offences punishable under S. 287/304-A IPC. Accordingly, accused Suresh Prasad stands acquitted of the offences punishable under Section 287/304A IPC.
24. Previous Bail bond is cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned. File be consigned to record room after due compliance.
Digitally signed by SNIGDHA SNIGDHA SARVARIA
SARVARIA Date: 2019.04.29
15:45:43 +0530
Announced in the open (SNIGDHA SARVARIA)
Court on 29.04.2019 Metropolitan Magistrate-01
Shahdara District, Karkardooma
Courts, Delhi
Judge Code: 0530
FIR No.187/10 PS GTB Enclave State V. Suresh Prasad 29.04.2019) Pg No. 16 of 16