Delhi District Court
State vs . Kamal Prasad Chauhan Anubhav Jain on 13 September, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN
MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 461/08
PS OIA Digitally
U/s 304A IPC signed by
ANUBHAV
State Vs. Kamal Prasad Chauhan ANUBHAV JAIN
JAIN
JUDGMENT Date:
2018.09.15
22:29:41
+0530
A. SL. NO. OF THE CASE : 1389/2/10
B. DATE OF INSTITUTION : 22.05.2009
C. DATE OF OFFENCE : 22.10.2008
D. NAME OF THE : Ajay Singh
COMPLAINANT S/o Sh. Kedar Singh
E. NAME OF THE ACCUSED : Kamal Prasad Chauhan
S/o Munshi Chauhan
F. OFFENCE
COMPLAINED OF : U/s 304A IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 13.09.2018
Brief Statement of Reasons for Decision :
1.The accused person is produced before the court to stand trial for the offences u/s 304A of IPC.
2. In brief facts of the case are that on 22.10.2008 ASI Vinod received a DD No. 20A upon which he reached at Hotel Today, OIA Phase1 and at the site he found HC Ram Kishore and Ct. Vinod. ASI Vinod also found complainant namely Ajay at the spot who stated that 2 deceased Surender Kumar was his relative and was working at the construction site of M/s Today Hotel as Asst. Store Keeper. He further stated that the construction work of Today Hotel is being carried out by Skyline Engineering Construction Pvt. Ltd. and that the job of deceased was to check the material at the site. He further stated that deceased Surender Kumar has several time asked the owners of Today Hotel as well as contractor of Skyline Engineering Construction Pvt. Ltd. regarding providing of safety equipments, torch, stick belts etc. however no heed was paid by the owners of the said Hotel or the contractor upon the said demands of deceased Surender Kumar. Complainant further stated that deceased Surender Kumar reached at the construction site at 5.00 am for checking of goods and he fall down from the second basement to zero basement because of which he expired. He further stated that death of Surender Kumar is caused due to rash or negligence act on the part of M/s Today Hotel as well as contractors.
Upon the said complaint, an FIR u/s 288/304A IPC was got registered and crime team was called at the spot which took the photographs of spot. Further IO got the dead body preserved at AIIMS Mortuary and seized the attendance register, prepared the site plan and got the postmortem of dead body conducted. IO further obtained the agreement for construction entered into between Today Hotel and Skyline Engineering Construction Pvt. Ltd. and arrested the accused person. After completion of investigation, IO filed charge sheet against the accused.
Further the contractor of M/s Today Hotel namely Arun Nayyer and major shareholder of Skyline Engineering Construction Pvt. Ltd.
3namely Ashok Kumar were also named in the charge sheet and they were kept at column no. 12 as suspects.
3. Ld. Predecessor Court vide order dt. 22.05.2009 took the cognizance of the offence and accused appeared before the court on 11.09.2009 and copy of charge sheet was supplied to him as per Section 207 of Cr.P.C. Separate charge u/s 304A IPC was framed against the accused Kamal Prasad Chauhan by the Ld. Predecessor Court on 17.01.2013 to which accused pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case has examined following witnesses :
4.1 PW1 Ajay Singh deposed that in the year 2008, his brotherinlaw Surender Kumar was working in the company Skyline Engineering Construction Pvt. Ltd. as a junior store keeper and Skyline Engineering Construction Pvt. Ltd. took a contract to construct Today Group Hotel at Okhla. He further deposed that his brotherinlaw was on day night duty at the said construction site for checking and issuing the constructions material and in the month of October 2008, he received a call of his elder brotherinlaw namely Sh. Rajesh Kumar from Allahabad who informed him that his brotherinlaw Surender Kumar has expired at the construction site. He further deposed that thereafter he went to the said construction site and saw the dead body of his brotherinlaw was lying in the basement of the said building. He further deposed that his brotherinlaw Surender Kumar told him before the incident that the said company did not provide any safety measure 4 for the work. He further deposed that on enquiry it was revealed that during duty in the night his brotherinlaw was fell down from the second floor and he found that there was no railing on the second floor of the said building. Police persons who were already present at the spot recorded his statement at the PS Ex. PW1/A. He further deposed that on the next day he went to mortuary of AIIMS Hospital and identified the dead body of his brotherinlaw and after postmortem the same was handed over to him vide handing over memo Ex. PW1/B and PW1/C. He further deposed that the incident occurred due to the negligence of the officials of the company Skyline Construction Pvt.
Ltd. as they did not provided safety measures to the workers and company forced their employees to stay in the said company for whole day and night for working.
4.2 PW2 Raju Mishra deposed that on 23.10.2008 he took photographs near Today Hotel on instruction of police and after 23 days he handed over the developed photos alongwith negatives to police officer.
4.3 PW3 ASI Jawahar Singh proved the FIR Ex. PW3/A. 4.4 PW4 HC Ram Kishor deposed that on 22.01.2008, he received a PCR call when he was in PSOIA, the said PCR call was made as DD entry no.20A. He further deposed that he and Ct. Vinod reached at the place of occurrence i.e Hotel Today which was under
construction where he found the dead body kept in a room covered by tin and on enquiry the name of the deceased was disclosed as Surender Kumar, who was working as a store keeper of sky line company. He further deposed that at 7:45 AM, ASI Vinod Kumar came at the spot and he apprised him about the facts of incident. He further 5 deposed that on enquiry he came to know that deceased Surender Kumar fell down from second to Zero basement and he also came to know that the staff of company firstly took deceased to hospital and then, brought him to the spot. He further deposed that after sometime the brotherinlaw of deceased came at the spot, ASI Vinod Kumar, recorded his statement and got registered FIR through Ct. Vinod Kumar. He further deposed that ASI Vinod Kumar, prepared site plan of a spot at his instance, and called a private photographer and crime team who took photograph of spot and crime team inspected the spot at the instance of ASI Vinod Kumar. He further deposed that ASI Vinod Kumar recorded the statement of private photographer, crime team incharge and photographer of crime team. He further deposed that thereafter, ASI Vinod Kumar, seized blood of deceased lying at the spot and earth control and also seized one blood stained piece of mat on which dead body of deceased was kept. He further deposed that ASI Vinod Kumar sent the dead body for postmortem through Ct. Vinod Kumar and IO prepared seizure memos and obtained by signature. He further deposed that sponge sheet in cream colour with blood stains of deceased was seized vide seizure memo Ex.PW4/A and blood stain earth control was seized vide seizure memo Ex.PW4/B. He further deposed that the attendance register was seized vide seizure memo Ex.PW4/C. He correctly identified the accused in the Court.
4.5 PW5 HC Kapil deposed that on 22.10.2008 he was posted as constable / photographer at mobile crime team, South Dist and after receiving the information from police control room, he alongwith Incharge Nafe Singh, Mobile Crime Team and other staff reached at 6 the spot i.e. Today Hotel, near Gole Chakkar, OIA and took the photographs of the spot.
4.6 PW6 HC Ram Chander deposed that on 22.10.2008 he was posted at MHCM at PSOIA and on instruction of IO / ASI Vinod Kumar he deposited 5 sealed pullanda with the seal of VK. He further deposed that he sent the said 5 sealed pullanda to FSL, Rohini vide RC No. 370/21/08 and on 29.10.2009, the said 5 pullanda alongwith result were deposited in Malkhana.
4.7 PW7 Ashok Kumar Shukla deposed that he received a call from his village by the father of deceased who told him that his son got injuries and he was told to reach at Today Hotel at OIA Phase1. He further deposed that he went to Today Hotel where he found a police gypsy of 100 number and police officials informed him about the incident and he had seen the dead body of deceased Surender.
4.8 PW8 SI Vinod Kumar deposed that on 22.10.2008, he was posted as ASI at PSOIA and on that day, he received DD no.20A regarding falling of a person from height at Today Hotel, OIA upon which he went to the spot and met HC Ram Kishore and Ct. Vinod over there. He further deposed that he found a dead body of a male lying on the ground floor of the under construction building of Today Hotel and he recorded statement of complainant namely Ajay and endorsed the said complaint and preached a rukka Ex.PW8/A and handed over to Ct. Vinod and got the present FIR u/s 288/304A IPC lodged at PSOIA. He further deposed that name of the deceased was revealed as Subhash and he called crime team and photographer at the spot who inspected the spot and took the photographs of the spot.
He further deposed that he prepared the site plan Ex.PW8/B and dead 7 body was shifted to mortuary of AIIMS and postmortem of deceased was got conducted at AIIMS. He further deposed that after postmortem, dead body of deceased was handed over to his relatives and he gave notice to the authorities of Today Hotel. He further deposed that he came to know that the Manager and the contractor of the said building was Kamal Chauhan and he further came to know that he was responsible for his death. He further deposed that thereafter, he arrested the accused Kamal Prasad Chauhan vide arrest memo Ex.PW8/C and his personal search was conducted vide search memo Ex.PW8/D. Thereafter, investigation was transferred to ATO/Inspector Kishore Kumar, PSOIA. He correctly identified the accused in the court.
4.9 PW9 ACP Kishore Kumar deposed that on 02.12.2008 he was posted as Insp. at PSOIA and on that day he was entrusted with the investigation of this case. He further deposed that he recorded the statement of witnesses and sent the exhibits of case to FSL and later on he collected the report from FSL and submitted charge sheet.
4.10 PW10 Insp. Nafe Singh deposed that on 22.10.2008 he was posted as Incharge, Mobile Crime Team, South Dist. and on that day on receipt of call regarding fall from height, he alongwith his team reached at the spot i.e. under construction Today Hotel, OIA Phase1, Anandmayee Marg where he met IO ASI Vinod, HC Ram Kishore and Ct. Vinod. He further deposed that in a tin shed temporary room, dead body was lying on a sponge sheet and photographer Ct. Kapil took photographs of the deceased as well as at spot. He prepared his report Ex. PW10/A. 4.11 PW11 Nikhil Kinha deposed that he was working with 8 Today Hotels New Delhi Pvt. Ltd. in the year 2007 to 2010 and he was working as Legal Manager in the company. He further deposed that the company was establishing 5 Star hotel site at Okhla and that one labour accident was happened during his tenure of working with this company. He further deposed that after receiving notice u/s 91/160 CrPC, he had submitted vide covering letter dt. 30.10.2008 & 03.11.2008 Ex. PW11/A & PW11/B and the copy of agreement between contractor and company to SHOPSOIA with informing director of company and Incharge on Okhla site at that time.
4.12 PW12 Dinesh Kumar, JMRO AIIMS proved the postmortem report no. 1077/18 of deceased Surender Kumar Ex. PW12/A. 4.13 PW13 Jugnu deposed that on 22.10.2008 he was working as a time keeper at Skyline Engineering Contracts India Pvt. Ltd. at Today Hotel, OIA Phase1 and on that day he received a call from the gate that somebody has fallen down while working. He further deposed that at about 55.30 am when he reached at the gate he found that Surender was brought to the gate by the guard. He further deposed that they noticed that blood was coming out from the ears of Surender and he alongwith some persons took Surender to hospital which is near at the left hand of Okhla Gole chakkar to Kalkaji. He further deposed that Surender was declared brought dead by the doctor and thereafter they brought back dead body of Surender to hotel and police was informed and investigation was conducted by the police. He further deposed that IO seized the copy of attendance register vide seizure memo Ex. PW4/C which was presented by him to IO and left the job. He correctly identified the accused in the Court.
95. Statement of accused u/s 313 Cr.P.C. was recorded on 14.08.2018 wherein it is stated by the accused that he was working as Deputy Project Manager at the site and there is a separate safety supervisor namely Sukhvir who used to look after the work of safety. He further stated that deceased Surender has no work at the site and he was sleeping at the site on the alleged date despite the fact that no material was received on the same day. He further denied all the allegations as levelled against him. Further accused chooses not to lead DE and matter was listed for final arguments.
6. I have heard Ld. APP for the state and Ld. counsel for the accused person and perused the case file carefully.
7. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond all reasonable doubts. It is the case of prosecution that on 22.10.2008 accused was working as Deputy Project Manager of Skyline Engineering Construction Pvt. Ltd. and was supervising the work of construction at the site and he failed to provide adequate safety guards to the workers who carried out the work of construction at the site because of which Surender Kumar fell down and died. As such it was for the prosecution to prove that:
1) There was an act / omission on part of the accused
2) Said act was rash or negligent to endanger the human life
3) Because of the said act Surender Kumar fell down from the second floor of the site and succumbed to the injuries.10
8. As per the case of prosecution M/s Today Hotel have entered into a construction contract with M/s Sky Line Engineering Contracts India Pvt. Ltd. regarding the construction work to be conducted at the site of M/s Today Hotel. In order to prove the same the prosecution has placed on recored the copy of agreement entered into between Today Hotel and M/s Sky Line Engineering Contracts India Pvt. Ltd. Nikhil Kinna who appeared as PW11 prove the fact that he had handed over the said contract to investigation agencies. Although there is no witness brought forth by the prosecution to prove that the said contract was entered into between Hotel Today and Skyline Engineering Contracts India Pvt. Ltd., however execution of same is not denied by the accused. Furthermore, accused in his statement u/s 313 Cr.P.C admitted the execution of said contract between M/s Today Hotel and M/s Sky Line Engineering Contracts India Pvt. Ltd.
Perusal of contract reveals that as per the safety rules, the contractor is liable to comply with the safety of labour and welfare rules and all the safety equipments are to be provided by the contractor.
9. As such it was for the prosecution to prove that the construction work was carried under the supervision of accused Kamal Prasad Chauhan and further that accused was entrusted by the M/s Sky Line Engineering Contracts India Pvt. Ltd. with the safety gears to be provided to the workers working at the construction site of M/s Today Hotel.
10. Accused Kamal Prasad Chauhan was named by the witness Jugnu (Jagnu), S/o Kishan Lal in his statement u/s 161 CrPC wherein he has stated that he was working as Time Keeper with M/s Sky Line 11 Engineering Contracts India Pvt. Ltd. and that he and deceased Surender have asked Kamal Prasad Chauhan several times to put a railing at the place from where the deceased has fallen down, however he did not pay any heed to their request. He further stated that Kamal Prasad Chauhan did not use to provide any safety gears to the staff members at the construction site.
11. It is pertinent to state in here that said Sh. Jugnu who deposed as PW13 did not support his statement u/s 161 CrPC and stated that he has never given any such statement to police officers.
It is further pertinent to state in here that no other document or appointment letter of accused Kamal Prasad Chauhan is placed on record and proved in order to show that his job in M/s Sky Line Engineering Contracts India Pvt. Ltd. was to conduct supervision of the construction work or M/s Today Hotel.
Furthermore, PW1 Ajay Singh during the course of his testimony has stated that the incident occurred due to the negligence of M/s Sky Line Engineering Contracts India Pvt. Ltd. as they did not provide with safety gears to the workers working at the construction site, however said Ajay Singh never deposed with regard to the fact that Kamal Prasad Chauhan was liable for the said incident as the construction work at the site was being carried out under the supervision of accused Kamal Prasad Chauhan and that he was responsible to provide safety gears to the workers working at the construction site.
1212. Be that as it may, considering the fact that none has been summoned by the prosecution from M/s Sky Line Engineering Contracts India Pvt. Ltd. in order to affix the liability of accused which could have been the best evidence in the present case, the prosecution has failed to show that the construction work at the site of M/s Today Hotel was being carried out under the supervision of accused herein and that he was liable to provide safety gears to the workers working at the construction site.
13. Even if for the sake of arguments, it is believe that the work was being carried out under the supervision of accused herein, it was for the prosecution to show that there was such a gross negligence on the part of the accused so as to attract criminal liability. For the same, I may gainfully refer to the observation made by Hon'ble Apex Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 :
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law.
For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304A IPC has to be read as qualified by the word "grossly".
13This court further placed on reliance upon the judgment Abdul Kalam v. State, 2006 SCC OnLine Del 526 passed by Hon'ble High Court of Delhi where upon similar facts observed by Hon'ble High Court of Delhi as under :
4. The learned Counsel for the petitioner further submitted that even the ingredients of Section 338 are not satisfied and, therefore, even if the allegations against the petitioner are taken to be true, no offence under Section 338, IPC is made out. Section 338, IPC reads as under:
"338. Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
5. A reading of the said section would clearly indicate that there must be some act done by the accused and that act must be done so rashly or negligently as to endanger human life or the personal safety of others. The petitioner had merely engaged the services of the said Mohd Shamshad for carrying out plastering work in residential premises. Apart from this, he did not do any act which could be regarded as rash or negligent so as to endanger human life. Therefore, in my opinion, the ingredients of Section 338 are not made out even if the statement of the said Mohd Shamshad is taking to be entirely true and correct. There is no nexus between the petitioner engaging the services of the injured and the injury being caused to him. The petitioner had no hand in setting up the scaffolding.
14. Admittedly, in the present case deceased Surender Kumar was a store keeper and not a worker / labourer at the construction site. It is not clear from the evidence so brought by the prosecution as to what 14 he was doing on the second floor at 5.00 am in morning. The deceased is stated to have been fallen down from the second floor of the construction site. There is no evidence brought forth by the prosecution with regard to the fact as to the reasons of his fall from the second floor. It was observed by the Hon'ble Apex Court in the abovesaid judgment that the work negligence in order to attract criminal liability must be gross and there must be element of mens rea in the same. In the present case in hand deceased Surender Kumar expired due to fall from the second floor of construction site and the same, cannot by any stretch of imagination be considered as gross negligence on the part of the accused herein.
15. Considering the law and facts discussed above, prosecution has failed to prove the case beyond reasonable doubts and accused is acquitted for the offence punishable u/s 304A IPC for which he was charged.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 13.09.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 14 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI