Delhi District Court
Criminal Case/59/2009 on 21 December, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Naveen Kumar
FIR No. 59/2009
Police Station : Chhawla
Under Section : 287/338 IPC
Unique Case ID Number: 02405R0116072012
Date of institution : 20.07.2009
Date of reserving : 21.12.2013
Date of pronouncement: 21.12.2013
JUDGMENT
a) Serial number of the case : 127/1/12
b) Date of commission of offence : 15.02.2009
c) Name of the complainant : Sh. Rakesh Kumar,
S/o Chedi Bhandari,
R/o Village Dankora, Post
Hatha, Police Station
Chakam Issi, District Samas-
tipur, Bihar.
d) Name, parentage and address : Sh. Naveen,
of the accused S/o Sh. Kishan Chand,
R/o Village and Post Office,
Khaira, New Delhi.
e) Offence complained of : Section 287 read with Section
338 IPC
State v. Naveen Kumar
FIR No. 59/2009 P.S.: Chhawla Page 1 of 17
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted of the offences pun-
ishable U/s 287 read with
Section 338 IPC
h) Date of final order : 21.12.2013
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused is being acquitted of the offences punishable under Section 287 read with Section 338 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 59/2009 Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 15.02.2009, at about 03.00 pm, at Pankaj Building Material, Village Khera, New Delhi within the jurisdiction of Police Station Chhawla, the accused directed his servant Rakesh Kumar to open a tyre of truck bearing No. HR 55D 7264 by using a jack which was not in sound working condition and while Sh. Rakesh Kumar was opening the tyre of the truck using the said jack as instructed by the accused, the front portion of the truck fell on Sh. Rakesh Kumar as a result of which he sustained grievous injuries. It is further the case of the prosecution that the accused had knowingly or negligently omitted to take such order with the aforesaid jack, which was under his care, as was sufficient to guard against any State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 2 of 17 probable danger to human life from the said jack.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed.
4. The case was received by way of transfer by this Court on 10.04.2012.
5. The prosecution failed to ensure service upon PW Naushad Khan, despite multiple opportunities granted for the said purpose and summons also having been sent through the investigating officer and Assistant Commissioner of Police concerned. Accordingly, vide order dated 20.03.2013, the opportunity of the prosecution to examine PW Naushad Khan was closed.
ACCUSATION AGAINST THE ACCUSED
6. Vide order dated 20.09.2010 passed by the learned predecessor of this Court, notice of accusation under Section 251 Cr.P.C. for the offences punishable under Sections 287 and 338 of the I.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
7. The prosecution in all examined six witnesses.
8. PW-1 Sh. Puran Chand is the mechanical inspector who had mechanically inspected the truck bearing No. HR 55D 7264 vide his State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 3 of 17 report Ex.PW1/A. PW-2 Sh. Rakesh Kumar is the complainant as well as injured in the present case. PW-3 Retired Assistant Sub Inspector B. P. Singh is the duty officer who had recorded the FIR No. 59/09, Ex.PW3/A and made his endorsement Ex.PW1/B on the rukka. PW-4 Head Constable Sri Krishan is the investigating officer of the case. PW-5 Sh. Narender Pal Singh, AAO, Safdarjung Hospital, New Delhi is the person deputed to depose on behalf of Dr. Mahesh Kumar, who had medically examined the injured Rakesh vide MLC No. 23063/09 Ex. PW5/A. He identified the handwriting and signatures of Dr. Mahesh Kumar on the MLC Ex.PW5/A having seen him write and sign during the course of his official work. He also identified the handwriting of Dr. Mahesh Kumar in the endorsement regarding nature of injuries, Ex.PW5/B. PW-6 Constable Arvind had joined investigation with the investigating officer.
STATEMENT / DEFENCE OF THE ACCUSED
9. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he was not present at the spot at the relevant time. He stated that the driver of the truck namely Naushad had asked the injured Rakesh to remove the tyre of the truck. He stated that the accident/incident in question happened due to the negligence of the injured himself as he removed both the front tyres of the truck at the same time by inserting a jack in the center/middle. He stated that had the injured Rakesh removed one tyre at a time, he would not have sustained injuries. He stated that the only eye-witnesses to the incident in question were the State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 4 of 17 driver of the truck namely Naushad and the driver of the JCB which was working at the spot namely Shashi, who had rescued the injured by lifting the front portion of the truck. He explained that there is a lock in every hydraulic jack and if the same is not properly fixed, the jack is bound to fall (come down). He stated that the injured was negligent as he was fixing the jack by positioning himself under the truck. He further stated that before fixing the jack, the injured did not apply handbrake and also did not place any aut (stopper) behind the tyres to ensure that the vehicle does not move backward.
EVIDENCE OF THE ACCUSED
10. In his defence, the accused only examined himself as a DW-1. He deposed that on 15.02.2009 at about 05.00 pm, while he was in Pandwala village, he received a telephonic message from building material site at Khaira village that someone had been injured and had been taken to Safdarjung hospital. He stated that he reached Safdarjung hospital where he met his driver Naushad, who informed him that someone had come under a truck and received injuries. He deposed that he gave a sum of Rs.25,000/- to his driver Naushad and returned to Khaira village. He deposed that after 10-15 days of the aforesaid accident, some police officials came to his residence and informed him that a case in respect of the accident in question had been registered against him being owner of the truck. He deposed that on the day of the incident, the truck in question was under the supervision of the driver Naushad. He stated that he had not asked the driver of the truck to change its tyre. He deposed that he did not know State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 5 of 17 anything about the present case.
ANALYSIS AND FINDINGS
11. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Jagmal Singh, learned counsel for the accused have been considered.
I. Charge under Section 287 I.P.C.
12. In order to bring home the guilt of the accused persons in respect of the offence punishable under Section 287 I.P.C. charged against them, the prosecution was required to prove the following:
i) The machinery (jack) in question was in the possession of or under the care of the accused;
ii) There was an omission on part of the accused in taking such order with such machinery (jack) in question as is sufficient to guard against any probable danger to human life from such machinery; and
iii) The omission was either with knowledge or negligence.
13. As per the prosecution story, at the relevant time the injured Rakesh was working as a helper in respect of the truck in question which was owned by the accused, who runs a business of building material at Khaira village. It is alleged that on the date of the incident in question, the accused had directed the injured to remove the front tyres of the truck bearing No. HR 55D 7264, which was not in working order, using the jack in question. It is further alleged by the prosecution that State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 6 of 17 the injured had informed the accused that the jack in question was defective and was not in proper working condition, however, the accused maintained that the jack was not defective and assuring that nothing untoward would happen, the accused insisted that the injured removed the tyres using the jack in question that nothing untoward would happen. The prosecution has alleged that the accused had not taken due order with the jack, which was not in proper working condition, and, therefore, when the injured removed the tyres of the truck after fixing the said jack underneath the front portion of the truck in question, the jack suddenly collapsed causing the front portion of the truck to fall upon the injured Rakesh, who got trapped under it and sustained injuries.
14. One of the ingredients of Section 287 I.P.C. is that the machinery in question was in the possession of or under the care of the accused. In the instant case, the prosecution has alleged that the accused is the registered owner of the truck in question and the jack in question was in his possession and/or under his care. Perusal of the record, however, reveals that the prosecution has failed to lead any positive evidence to prove the said alleged fact. No documentary evidence has been brought on record to establish the ownership or possession of the accused in respect of the jack in question. The only public witness examined by the prosecution is the complainant/injured PW-2, who has not deposed anything to support the allegation that the jack in question was in the possession of or under the care of the accused at the relevant time. Merely because as per the testimony of PW-4 the jack in question was produced by the accused, that too much after the date of State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 7 of 17 the alleged incident, does not in any manner prove the fact that the same was in the possession of or under the care of the accused at the relevant time. Thus, the prosecution has failed to establish that first ingredient of the offence punishable under Section 287 IPC.
15. To show that the jack in question was not in proper working order at the relevant time or that the accused had failed to take such order with respect to the jack in question as was sufficient to guard against any probable danger to human life from such jack, the prosecution has examined the complainant PW-2. As admitted by the complainant/injured PW-2 in his cross-examination, he neither had any qualification in motor mechanics nor in handling a jack. Thus, the opinion of the complainant PW-2 that the jack was not in proper working condition, as had been allegedly communicated by him to the accused, is of little value to establish that the accused had failed to take such order with respect to the jack in question as was sufficient to guard against probable damage to human life from it. Besides PW-2, to establish the aforesid ingredient of Section 287 IPC, the prosecution has examined PW-1 Sh. Puran Chand who had allegedly conducted the mechanical inspection of the jack in question. As per his report Ex.PW1/A, the jack had failed due to leakage of pressure. The said report further states that the lever pin was missing. However, there is nothing in the report from which it can be inferred that the pressure of the jack had leaked or the jack had failed due to any omission on part of the accused in properly maintaining the jack to guard against any probable danger to human life from the same. The jack is a machine and defects in machines may occur instantly. There is nothing in the State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 8 of 17 report Ex.PW1/A of the mechanical inspector to suggest that the defect, i.e. leakage of pressure or lever pin having gone missing, due to which the jack is alleged in the report to have failed, had not or could not have occurred while the same was being used by the complainant/injured. Moreover, while the incident pertains to 15.02.2009, the jack in question was seized by the investigating officer only on 02.03.2009, i.e. after lapse of more than fifteen days. The mechanical inspection of the jack in question was got conducted only thereafter, i.e. on 03.03.2009. There is nothing on record to rule out the possibility that the defect, if any, noted in the mechanical inspection report had occurred during the period intervening the date of the alleged incident and the mechanical inspection of the jack. Thus, the prosecution has failed to establish beyond reasonable doubt that there had been an omission on part of the accused in taking such order with respect to the jack in question as was sufficient to guard against any probable danger to human life from it.
16. Since the prosecution has failed to establish that first two ingredients essential for constituting the offence punishable under Section 287 IPC, there is no need to discuss the third ingredient as stated above.
17. In view of the aforesaid, the prosecution has failed to prove the essential ingredients for proving the charge under Section 287 I.P.C. as stated above. Besides the aforesaid, there are other factors too for doubting the prosecution version.
State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 9 of 17 Re: Other factors for doubting the prosecution version
(i) Lapses in the testimony of the sole eye witness
18. The only eye-witness examined by the prosecution is the injured Sh. Rakesh himself. Though the injured PW-2 Sh. Rakesh deposed in support of the prosecution case, for the reasons discussed hereunder, his testimony is found insufficient to hold the accused guilty of the offence punishable under Section 287 I.P.C.
19. While it is the case of the prosecution that at the relevant time the injured Rakesh was working as a helper in respect of the truck in question which was owned by the accused, the accused took the defence that the complainant/injured had never worked for the accused as a helper for his truck. In his cross-examination, PW-2 stated that at the time of the incident he had been working for the accused for about 5-6 months and used to receive a sum of Rs.4,850/- as remuneration from the accused. He, however, stated that he did not put his signatures on any revenue stamp after receiving the said remuneration.
20. In the complaint Ex.PW2/A, the complainant has alleged that the accused had directed him to remove the front tyres of the truck bearing No. HR 55D 7264, using the jack in question. However, in his testimony in court, the complainant/PW-2 stated that the accused had asked him to remove only one tyre of the aforesaid truck. Thus, there is contradiction in the version of the complainant in the complaint Ex.PW2/A and his testimony in court.
21. While it is the version of the complainant/PW-2 that the accused State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 10 of 17 had directed him to remove the front tyre(s) of the truck in question, he admitted in his cross-examination that both the front tyres of the truck in question were in working condition. Neither the complainant/PW-2 nor the prosecution have explained as to why the accused would have directed the complainant to remove the front tyre(s) of the truck as alleged, if the said tyre(s) was/were in working condition.
22. Further, as per the complaint Ex.PW2/A, the truck in question was not in working order. In his testimony in court, however, the complainant has not stated anything to that effect. Moreover, if the truck itself was not in working order, as alleged in the complaint, it has not been explained by the complainant or the prosecution as to why the accused would have directed the complainant to merely remove the tyre(s) of the truck in question.
23. In his cross-examination, PW-2 admitted that he had not undergone any course in motor mechanics and did not possess any diploma in handling a jack. Accordingly, the opinion of the complainant/injured PW-2 that the jack in question was not in proper working condition cannot be relied upon more so since he has not explained any basis for holding such an opinion.
24. Perusal of the complaint as well as the testimony of the complainant/injured PW-2 reveals that as per the complainant, the accused had directed him to open the front tyre(s) of the truck in question by using the jack in question. Ordinarily, for removing one or more tyres of a vehicle, one is required to fix a jack underneath the vehicle and adjust it so as to lift the vehicle to such a height that the State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 11 of 17 tyres can be easily removed. The same does not require one to place himself below the vehicle especially after the jack has been fixed. In the instant case, however, as per the complaint Ex. PW2/A as well as the testimony of the complainant/injured PW-2, the jack had collapsed and the truck had fallen upon the complainant/injured Sh. Rakesh after he had already removed the tyre(s) by fixing the jack underneath the front portion of the truck. PW-2 has clearly stated, "I put the jack below the truck and lifted the truck with the help of jack and tried to open the tyre. I opened the tyre and again went below the truck. The truck all of a sudden fell on me..." In his cross-examination, PW-2 admitted, "It is correct that when the jack is used a person has to sit outside the truck". The complainant/injured PW-2 has failed to explain as to for what purpose he had gone below the truck after having completed the task allegedly assigned to him by the accused i.e. removal of the front tyre(s). The fact that, even after completion of the task allegedly assigned to him by the accused, the complainant/injured went under the truck which had been lifted with the help of the jack in question, which the complainant/injured had believed not to be in proper working condition, is a circumstance that takes away from the guilt of the accused in respect of the charge against him.
ii) Delay in lodging of FIR
25. As per the complaint Ex.PW2/A, the incident pertained to 15.02.2009, however, the said complaint was made on 28.02.2009 i.e after a delay of about thirteen days. The said delay in lodging of the complaint has, however, not been satisfactorily explained by the State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 12 of 17 complainant/PW-2. It is stated by the complainant in the complaint Ex. PW2/A that he had not made the complaint on the day of the incident as his family members had not arrived from Bihar. Further, the investigating officer PW-4 Head Constable Sri Krishan deposed that on 15.02.2009 when he went to Safdarjung hospital and met the injured, the injured refused to give his statement on the ground that he would give his statement in the presence of his family members. Vide a letter filed along with the police report, though not exhibited, the investigating officer Head Constable Shri Krishan had sought permission from the doctor on duty EOT, Safdarjung Hospital, New Delhi for recording the statement of the complainant/injured. As per endorsement of the doctor on the same, the patient, i.e. complainant/injured herein, was fit to give statement as on 15.02.2009 at 09.30 pm. In such circumstances, it is not understood as to why the injured Sh. Rakesh waited for a period of thirteen days before making a complaint to the police. The reason that he wanted to make his statement in the presence of his family members is not deemed to be a cogent ground for the refusal/failure of the complainant/injured to make his statement to the police on the day of the incident or without considerable delay. The same casts doubt on the truth of the prosecution story.
26. Reliance is placed on the decision in Bhajan Singh v. State of Haryana, 2011 (4) JCC 2401 (SC) cited on behalf of the accused persons. In paragraph 9 of the aforesaid decision, the Hon'ble Apex Court observed as under:
"Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 13 of 17 regarding its true version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In such case of delay, it also cannot be presumed that the allegations were an after thought or had given a coloured version of events. The court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with mala fide intentions or with ulterior motive of wreaking vengeance. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law. (Vide : Sahib Singh v. State of Haryana, AIR 1997 SC 3247; G. Sagar Suri and Anr. v. State of U.P and Ors., 2000 (1) JCC (SC) 158 : AIR 2000 SC 754; Gorige Pentaiah v. State of A.P. and Ors., 2008 (4) JCC 2277; (2008) 12 SCC 531; and Kishan Singh (dead) thr. Lrs. v. Gurpal Singh and Ors., 2010(4) JCC 2447: AIR 2010 SC 3624)."
27. In the instant case, there had been a delay of about thirteen days in lodging of the complaint. Neither the prosecution nor the complainant have satisfactorily explained as to why the complainant did not lodge a complaint with the police promptly after the alleged incident. The delay in lodging of the complaint appears deliberate. Accordingly, there are chances that the allegations are result of an after-thought or give a coloured version of events.
State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 14 of 17
iii) Absence of independent witnesses
28. The prosecution has only examined one eye-witness, i.e. the complainant/injured PW-2 Sh. Rakesh. Besides the complainant/injured PW-2, the prosecution had cited one eye-witness Sh. Naushad as a prosecution witness. However, during trial, the prosecution was unable to trace the said witness and ensure service of summons upon him. Sh. Naushad, i.e. the only independent eye-witness cited by the prosecution, was, therefore not examined in the present case.
29. In his cross-examination, the injured PW-2 stated that at the time of the incident, besides him four labourers and one driver were also present at the spot. He further stated that the driver and two labourers had also accompanied him to the hospital. Though the prosecution had cited the said driver namely Sh. Naushad as a prosecution witness, none of the aforesaid labourers who were eye-witnesses to the alleged incident have either been examined or even cited by the prosecution. Further, no effort on part of the investigating officer been shown to have been made to join any such labourer as a witness. In fact though the investigating officer PW-4 deposed that when he went to the spot at about 09.00 pm on 15.02.2009 he met four to five labourers, he stated that he did not record the statement of any labourer on the spot. The same tends to render the prosecution story under a cloud of doubt.
iv) Contradictions in testimony of prosecution witnesses
30. There are material contradictions in the statements of the prosecution witnesses which create a reasonable doubt as to prosecution version.
State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 15 of 17
31. In the complaint Ex.PW2/A, the complainant has alleged that the accused had directed him to remove the front tyres of the truck bearing No. HR 55D 7264, using the jack in question. However, in his testimony in court, the complainant/PW-2 stated that the accused had asked him to remove only one tyre of the aforesaid truck.
32. While as per the complainant PW-2, both the front tyres of the truck in question were in working condition, as per the testimony of the investigating officer PW-4, the front tyre of the truck in question was punctured.
33. In view of the aforesaid detailed discussion, the accused is, in the considered opinion of this Court, entitled to the benefit of doubt and to be acquitted of the offence punishable under Section 287 I.P.C.
II. Charge under Section 338 I.P.C.
34. For bringing home the charge under Section 338 I.P.C., the prosecution was required to prove that (1) grievous hurt had been caused to the injured/complainant, and (2) the same was caused by the accused by doing an act so rashly or negligently as to endanger human life, or the personal safety of others.
35. As already discussed above, the prosecution has failed to establish beyond reasonable doubt that the accused had omitted to take such order in respect of the jack in question as was sufficient to guard against any probable danger to human life from the same of that such omission was with knowledge or negligence. Further, the prosecution has also not established beyond reasonable doubt that the State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 16 of 17 accused did any act so rashly or negligently as to endanger human life, or the personal safety of others.
36. Thus, the accused is allowed the benefit of doubt and is acquitted of the offence punishable under Section 338 I.P.C.
CONCLUSION
37. Accordingly, the accused is acquitted of the offences punishable under Section 287 I.P.C. as well as Section 338 I.P.C.
38. File be consigned to record room.
Announced in open Court on 21.12.2013 (MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 21.12.2013 State v. Naveen Kumar FIR No. 59/2009 P.S.: Chhawla Page 17 of 17