Delhi District Court
State vs . Sangeeta on 7 January, 2017
IN THE COURT OF SH. KAPIL KUMAR, MM-06,
(NORTH)ROHINI COURTS, DELHI
State Vs. Sangeeta
PS. Adarsh Nagar
1. FIR No. : 180/04
2. Date of Offence : 17.05.2004
3. Name of the complainant : SI Ishwar Singh
4. Name, parentage and Address : Sangeeta
of the accused W/o Sh Jagpal Singh
R/o H. No.8, Kewal Park,
Extension, Azad Pur,
Delhi.
5. Offences complained of : 304 A IPC.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 13.12.2016
8. Sentence or final order : Acquitted
9. Date of order : 07.01.2017
10.Unique ID No. : 02401R5709732004
JUDGMENT
1. The case of the prosecution against the accused is that on 17.05.2004 at about 11:15 AM at H. no. A-8 Kewal Park Extension Adarsh Nagar, Delhi accused committed rash or negligent act by not taking precautions by not erecting wall to restrict the accessibility to the high tension wires which were going from top of the roof of the premises of the accused. This rash or negligent act of the accused resulted into the death of one boy aged 12 years namely Ramesh S/o Sh Ram Swaroop.
2. After investigation, charge-sheet was filed against the accused. The copy of charge-sheet and annexed documents were supplied to accused in compliance of Section 207 Cr. P.C. Thereafter notice under Section 304A IPC was served upon the accused to which she pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 15 witnesses. PW-1 is Dr A.K Kesari, PW-2 is ASI Ram Pal, PW-3 is HC Usha Rani, PW-4 is ASI Rajender, PW-5 is Sh Bunty Kumar, PW-6 is Sh Balbir Singh, PW-7 is Ct Jaswant Singh, PW-8 is JE Roshan Lal, PW-9 is SI Ishwar Singh, PW-10 is Ram Samuch, PW-11 is Sh Nakhru, PW-12 is Sh Ram Kewal, PW-13 is Sh Manish Kumar, PW-14 is Ram Sudhar and PW-15 is Dr Rishi Solanki.
4. After conclusion of prosecution evidence, statement of accused was recorded. Accused opted not to lead DE.
5. I have heard Ld. APP for State and Ld Counsel for accused. It is submitted by the Ld APP for the State that the case of prosecution stands proved as the accused was the incharge of the premises in which the deceased died due to electrocution. It is submitted that it was the duty of the accused to take necessary precautions to avoid any untoward accident. Per Contra, Ld Counsel for accused submits that the accused was not the owner of the house in which the alleged accident took place and accused at that time was not the incharge of that premises. It is submitted that the accident did not take place due to rashness or negligence on the part of the accused.
6. The testimonies of prosecution witnesses are being touched upon in brief as follows:-
Eye witness/Public Witnesses 6.1 PW-11 Sh Nakhru deposed that in the year 2004 he was residing in H. No. A-8 Kewal Park, Delhi. He deposed that son of his brother-in-law namely Ramesh came to him for excursion and was staying with him. He deposed that on 17.05.2004 i.e the day of incident he was present at his tea stall situated in Mandi and he was informed that Ramesh expired due to electrocution. He further deposed that the accused was asked to raise the height of the wall of the roof so that accessibility to the high tension wire got restricted. He deposed that he cannot tell as to by whose fault deceased got electrocuted.
6.2 PW-12 Ram Kewal deposed that on 17.05.2004 he was present in Mandi and came to know that Ramesh who used to reside with Nakhru got electrocuted. He deposed that in the year 2004 he was residing at H. No. A-
8, Kewal Park but had not asked the accused to provide safety from the high tension wire or to raise the height of the wall. He deposed that Ramesh got electrocuted due to low height of electric wire.
6.3 PW-13 deposed that on 17.05.2004 he was standing at the corner of the street in which the house in question is situated and he saw child aged 2-2 ½ years was going to roof after taking bath. He deposed that child came in contact with wire and got electrocuted. He deposed that he took that child in the PCR Van to the hospital and child expired on the way. 6.4 PW-14 Sh Ram Sudhar deposed that on the day of incident he was in mandi and came to know that boy aged 14-15 years got electrocuted with the wire which were going above the house in which he was residing. He deposed that a aged person known as Tau used to collect rent from them.
Witnesses to the investigation 6.5 PW-7 Ct Jaswant that on 17.05.2004 after receiving DD no. 8A he along with SI Ishwar Singh went to the place of incident where he came to know that injured has been shifted to the hospital. IO left him at the spot and went to BJRM Hospital. After coming back at the spot IO prepared the rukka and got the FIR registered. He deposed that he seized one pair of slippers lying on the roof vide seizure memo ExPW7/A. 6.6 PW-9 SI Ishwar Singh deposed that on 17.05.2005 after receiving DD no. 8 A he along with Ct Jaswant went at the spot where he came to know that a boy got electrocuted and shifted to BJRM Hospital. He went to BJRM hospital and thereafter came back at the spot, prepared rukka and got FIR registered. Spot was got photographed. Site plan was prepared. Slippers lying at the spot was seized. Thereafter on the next day he received the information vide DD no. 26 A regarding the death of injured boy. Postmortem of deceased boy was got conducted. JE of NDPL was summoned to examine the spot who gave his report as ExPW8/A. Inquiry was made about the ownership of the house and he came to know that accused is collecting rent from the tenants residing at the house. Accused was arrested and thereafter released on bail.
Doctor 6.7 PW-1 Dr A.K Kesari deposed that on 17.05.2004 he examined one patient namely Ramesh who suffered 90 percent burns injury due to electric shock. He proved his report as ExPW1/A. 6.8 PW-6 Sh Balbir Singh Record Clerk from Lok Nayak Hospital brought the death summary of deceased Ramesh prepared by Dr Nupur which is ExPW6/A. 6.9 PW-15 Dr Rishi Solanki proved the postmortem report of deceased Ramesh as ExPW15/A. He deposed that the cause of death was shock consequent upon burn injuries due to electrocution and all injuries were ante motem in nature.
Formal Witness 6.10 PW-2 ASI Ram Pal deposed that on 18.05.2004 at about 5:15 AM he received a wireless call from JPN Hospital regarding the death of a person due to electrocution which was reduced in writing vide DD no. 26 A ExPW2/A. 6.11 PW-3 HC Usha Rani deposed that after arrest of accused she personally searched the accused on 06.06.2004.
6.12 PW-4 ASI Rajender deposed that on 17.05.2004 at about 2:45 PM he registered the present FIR ExPW4/A on the basis of rukka sent by ASI Ishwar Singh through Ct Jaswant.
6.13 PW-5 Sh Bunty Kumar deposed that on 17.05.2005 at the instruction of the IO he took photographs of the spot. Photographs were proved as ExP1. 6.14 PW-8 Sh Roshan Lal JE NDPL deposed that on 17.06.2004 he examined the spot and found high tension wire crossing over the roof corner of the house in question and gave his detailed report as ExPW8/A. 6.15 PW-10 Sh Ram Samuch deposed that he received a call from Sh Nakhru that his son expired due to electrocution. He identified the dead body of his son vide ExPW9/D and received the dead body after postmortem vide memo ExPW9/A.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused persons beyond reasonable doubts. No matter how weak the defence of accused but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. The accused was put to trial for the offence U/s 304 A IPC which deals with causing death of a person by negligence. This section requires the causing of death of a person by a rash or negligent act of other person not amounting to culpable homicide. The present case relates to the death of child aged about 12 years namely Ramesh who used to reside with PW-11 Sh Nakhru who was tenant in the H. No. A-8 Kewal Park, near Power House, Delhi.
9. The prosecution has to prove specifically the rashness or negligence on the part of accused which resulted into the death of Ramesh. It is not disputed that Ramesh died due electrocution. The testimony of PW-1 Dr A.K Kesari who proved his report as ExPW1/A, testimony of PW-6 who proved the death summary of deceased as ExPW6/A and testimony of PW-15 Dr Solanki who proved the postmortem report of deceased as ExPW15/A went unchallenged and unrebutted. I found no reason to disbelieve their testimony Thus it came on record that deceased Ramesh died expired due electrocution.
10. Now, the posers are as to by whose negligence the deceased got electrocuted and whether the accused has any nexus with that rashness or negligence. It is not disputed that high tension electric wire were going above the roof of H. no. A-8 Kewal Park Extension, Delhi which is house in question. On the roof of this house the deceased came in contact with the live electric wire and got expired. It is deposed by the IO SI Ishwar Singh that he got the spot inspected through Junior Engineer of NDPL. PW-8 Roshan Lal Junior Engineer of NDPL deposed that on 17.06.2004 he inspected the spot and found that high tension wires were crossing over the roof corner of the house and gave his detailed report which is ExPW8/A. ExPW8/A is a hand written document in which it is mentioned that the electric wires which were going over the house in question were of 33,000 volts and as per Section 80 of Indian Electricity Act 1956 the vertical clearance should be 3.7 meters and horizontal clearance should be 2 meters. He further stated that the 33,000 volt line was passing over the house in question and around 30 more houses which is very dangerous to human life. It was not investigated by the IO as to whether the roof of the house was constructed after the installation of wire or prior to that. If the wires were installed after the construction of roof then it was the duty of the NDPL to issue notices to the owner of the houses over which the high voltage line would pass but no such notices has been placed on record. If the house was constructed after the installation of electric lines then it was also the duty of MCD or any competent authority to stop the construction of the building. How the dangerously situated building was got constructed is not clear. The connivance of the MCD and police officials in the construction of dangerously situated building under the high tension wires cannot be ruled out. Further IO has deposed that Junior Engineer of NDPL issued notices to the accused to erect the wall near the high tension wire. No such notice has been placed on record by the prosecution. The reason of not placing those alleged notices on record is not explained by the prosecution. These notices were best evidence for the prosecution to prove the negligence on the part of owner of building. Further nothing of this sort has been deposed by the official of NDPL when he was examined in the court as PW-8. If the concerned authority allowed the construction of the building under the high tension wires then there is a negligence on the part of authority also.
11. Further, the accused could be linked to the alleged rash or negligent act by not erecting a wall on roof to restrict the accessibility to the high tension wires provided it be proved by the prosecution that accused was the incharge or was responsible for the building in question. IO himself admits in his examination-in-chief that house in question is registered in the name of father-in-law of the accused Sangeeta. IO further stated that father-in-law and husband of the accused Sangeeta already expired and accused Sangeeta was in occupation of house and was collecting rents from the tenants. Thereafter IO admitted in the cross-examination at the time of incident in question the accused Sangeeta was residing at Bharat Pur. There is one brother-in-law of the accused also namely Shailender. IO states that he made inquiry from the Shailender but not recorded his statement. It is not clear as to why IO has not made the brother-in-law of the accused Sangeeta as accused in the present case as the property also devolves upon him. IO has taken the stand that though accused was residing in the Bharat Pur at the time of incident but she used to collect rent from the tenants residing in the building. No rent receipt or any document has been placed on record by the prosecution to prove that accused Sangeeta was collecting rent from the tenant. PW-11 deposed that he took the room in question on rent from one Pappu and not from the accused. PW-12 Sh Munesh deposed that he never saw the accused residing house in question. PW-14 deposed that one aged person commonly namely as Tau used to collect rent from them. PW-14 specifically deposed that accused never collected rent from him. It is not proved by the prosecution that it was the accused who charging rents from the tenants and thus she was the incharge of the building. On the other hand it came on record that accused used to reside at Bharatpur at the time of accident. The duty to take care could be imposed upon the accused if it is proved by the prosecution that the accused was the owner of the house or that she was collecting rent. It is not proved by the prosecution that the accused was acting as a landlord for tenants residing in the building in question. Thus it is not proved by the prosecution that it was the responsibility of accused take care of the building to avoid any untoward accident.
12.PW-11 Sh Nakhru deposed that on the day of incident he was present at his tea stall situated in Azad Pur Mandi and he received the information that Ramesh got electrocuted with the wire which were going above the roof of the house in which he was residing. He was not coming up with entire fact and was cross examined by Ld APP. In the cross-examination he deposed that he cannot tell as to by whose fault Ramesh was electrocuted. He deposed that he asked many times to the accused to raise the height of the wall of the roof.
13. PW-11 Sh Nakhru was one of the important witness of the prosecution as the deceased boy was used to reside with the house in question with Nakhru. Perusal of testimony of PW-11 reveals that he is not the eye witness of the incident and he received the information regarding the electrocution by some third person. He specifically deposed in the cross-examination by Ld APP that he cannot tell as by whose fault the electrocution took place. He again deposed in cross-examination by Ld Defence Counsel that there was no fault of anyone in the death of deceased Ramesh. The incriminating alleged fact which came in the testimony of PW-11 qua the accused is that he deposed that he asked accused many times to raise the height of the wall of the roof. This is the vague deposition of PW-11. It is not specifically mentioned by PW-11 nor any efforts were made on behalf of prosecution to bring on record the exact time span in which the accused was called by PW- 11 to raise the height of the wall. If the accused neglected to raise the height of the wall of the roof to restrict the accessibility to the high tension wires then what steps taken by PW-11 is not mentioned. In the cross-examination he took different stand and deposed that he took the room in question from one Pappu and made complaint to Pappu regarding the electric wires on the roof. This shows that PW-11 is deposing contradictory things as to whom he had informed regarding the electric wires going from the roof. The testimony of PW-11 is not helpful for the case of prosecution.
14. PW-12 and PW-14 also deposed on same lines of PW-11 and their testimony is hearsay qua the accident in question. It is not come in the testimony of PW-12 and PW-14 also that accused was the land lady of the building in question. The testimony of PW-13 is not reliable as he told the age of deceased as 2-2 ½ years. The age of victim was around 12 years. A boy of 12 years by no means can look like 2 ½ years. This testimony does not instill faith of this court.
15. It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgment titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharastrra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharasthra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
16. Thus in view of above discussion, there are several gaps in the case of prosecution and the prosecution is not able to discharge its burden of proof. Accused is entitled to benefit of doubt. She is hereby acquitted from the present case.
Bail Bonds U/s 437 A Cr. PC furnished by the accused.
File be consigned to Record Room after due compliance.
Announced in the open court (KAPIL KUMAR)
on 07.01.2017 Metropolitan Magistrate-06
North District, Rohini Court