Delhi District Court
State vs Dinesh Tokas on 19 September, 2024
IN THE COURT OF SH. ARIDAMAN SINGH CHEEMA, JMFC-05, SED, SAKET
COURTS, DELHI
DLSE020006752011
Cr. Case No. -: 92396/2016
FIR No. -: 121/2010
Police Station -: Sarita Vihar
Section(s) -: 304-A IPC
STATE
VS.
DINESH TOKAS
1.Name of Complainant :- Retired SI Joginder Singh S/o Sh. Sher Singh
2. Name of Accused Person :- Dinesh Tokas S/o Sh. Trilok Singh
3. Offence complained of or :- 304-A IPC proved
4. Plea of Accused Persons :- Not guilty
5. Date of Commission of :- 21.04.2010 offence
6. Date of Filing of case :- 29.06.2011
7. Date of Reserving Order :- 16.07.2024
8. Date of Pronouncement :- 19.09.2024
9. Final Order :- Acquitted Digitally signed by Aridaman Aridaman singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 1 Of 22 singh cheema Date:
2024.09.19 16:41:41 +0530 RIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly, facts of the prosecution case are that on 21.04.2010 at about 08:00PM at Swimming Pool, Netaji Subhash Sport Complex, Jasola Vihar, New Delhi, accused being the proprietor of M/s WMM Enterprise, contractor of aforesaid Swimming Pook, negligently omitted to take precautions regarding safety/ guard of the said pool due to which one individual namely Adil Iqbal Sunk / drowned in the pool and later died.
2. On this complaint after initial inquiry police registered the FIR on 121/2010 PS Sarita Vihar u/ 304-A IPC. On 29.06.2011 chargesheet was filed against the accused for commission of offence u/s 304-A IPC.
3. After the completion of necessary formalities, charge sheet was been filed in this court. Cognizance of the offence was taken and the accused was summoned.
Copy of all necessary documents were supplied in compliance of Section 207 Code of Criminal Procedure, 1973 (hereinafter, CrPC). Charge for commission of offence under Section 304-A IPC India penal Code, 1860 (hereinafter IPC) was framed against the accused separately to which the accused pleaded not guilty and claimed trial.
4. To prove its case prosecution examined 07 witnesses. 4a. PW-1 is HC Manoj Kumar, he has stated that he had brought the original FIR register having FIR no.121/10, PS Sarita Vihar. Copy of FIR is Ex.PW1/A (OSR). The FIR registered the DO/ASI Gurcharan Singh. He could not identify signatures of DO/ASI Gurcharan Singh. He was cross-examined on behalf of accused and stated Aridaman singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 2 Of 22 Digitally signed by Aridaman singh cheema Date: 2024.09.19 16:41:47 +0530 that he does not have any personal knowledge about the aforesaid FIR as he was not posted at PS Sarita Vihar at the time of registration of FIR.
4b. PW-2 is Lt. Col. (retired) Sh.P.B. Pathak (then secretary/NSSC/DDA). He stated that in the year 2010, he was posted at Jasola Vihar, Netaji Subhash Sports Complex, DDA as Secretary. On 21.05.2010, he forwarded some documents to IO on his request vide his letter no. F5(III)/NSSC/MISC./DDA/10/1862 dated 21.05.2010. Letter alongwith 16 copies of documents mentioned in above mentioned letter is Ex.PW2/A (colly, running into 16 pages) on the letter as well as on all papers which were attested by him.
Original receipt book having receipts bearing no.1801 to 1900 for entry in swimming pool was also handed over to IO by him. On receipt no. 1818, the name of one Adil as guest is mentioned. Original receipt book is now Ex.PW2/B (colly) and receipt no. 1818 is Ex.PW2/B1. He also handed over to IO original agreement for maintenance and operation of swimming pool at Netaji Subhash Sports Complex with M/s WMM Enterprises, House No. 119, Munirka Village, New Delhi. The agreement is Ex.PW2/C (colly, running into 15 pages).
He was cross examined on behalf of accused by his Ld. Counsel Sh. Anil Tomar. In his cross-examination he stated that IO did not record his statement. The morning timings of the swimming pool as on 21.04.2010 were from 06:30 am to 09:00 a.m, and evening timings were from 06:30 p.m to 08:30 p.m/ 09:00 p.m, however, he did not exactly remember the timings. ( he voluntarily stated that the timings are duly prescribed in the agreement). He admitted that he does not have any personal knowledge about the alleged incident and he was deposing only on the basis of aforesaid documents handed over by him to the IO.
He denied the suggestion that the entry register allegedly showing the entry of Adil vide receipt no.1818 was manipulated by DDA. He admitted that entry register was maintained by DDA staff. (he voluntarily stated that one counterfoil of the Digitally signed by Aridaman Aridaman singh singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 3 Of 22 cheema Date:
2024.09.19 16:41:52 +0530 receipt was handed over the guest/member which was checked by the Life Guards of the contractor and it was only after checking the receipt that the guests/member were permitted to use the swimming pool.
4c. PW-3 is Sh. Zafar Iqbal. He stated that on 21.04.2010, his son namely Adil Iqbal went to spot complex Jasola Vihar for swimming. Where, he came to know that his son drowned during swimming due to which he was admitted in Apollo hospital for treatment. His son was treated in Apollo hospital from 21.04.2010 to 02.05.2010. His son was declared dead by treating doctors on 02.05.2010. Thereafter, dead body of his son Adil Iqbal was shifted to AllMs mortuary. He identified dead body of his son, where from dead body of his son was handed over to him after post mortem on 03.05.2010.
He was not cross examined on behalf of the accused despite opportunity given.
4d. PW-4 Sh. Danish Ali. He deposed that on 21.04.2010, his friend Adil Iqbal called him around 5.30PM from his office which was in Gurgaon. He requested him to accompany to the swimming pool. However, since on that day, IPL Semi Final Match was scheduled hence, he denied initially but he insisted and came to pick him on his bike near his home around 7.45PM near Jamia University. Thereafter, they both went to Subhash sport complex, Jasola Vihar for swimming. They paid daily entry fees and started swimming at 8.00PM. Generally they allowed swimming for 45 minutes as they both did not know how to swim and were only beginner, hence, they both were trying to swim in three feet deep portion of swimming pool. They did swimming till 8.45PM. At about 8.45PM, Adil went towards slightly deeper portion of the pool. Subsequently, he heard the whistle which was a sign to indicate that their swimming time was over. Hence, he came out of the pool and then he wanted to call Adil out of the pool. However, he could not see him, hence he went inside changing room but he was not there. Then he again ran towards the pool to call him. When he tried to Digitally signed by Aridaman Aridaman singh STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 4 Of 22 singh cheema cheema Date:
2024.09.19 16:41:57 +0530 search he found his body lying inside the pool and then he shouted for help as no safety guard was present near the pool. Thereafter, some people came and took the body of Adil out of the pool. Thereafter, some person took Adil to Apollo hospital through his private car. One person from pool staff and he also accompanied them to the hospital in the same car.
He further stated that there was insufficient lighting near the pool area and also life guard was available near the pool.
In his cross examination on behalf of accused he stated that at that time, he was working at Okhla Industrial Area Phase-3, as an HR Executive. He was not member of that swimming pool. He voluntarily stated that anybody can pay and to have access to the pool. He had paid some amount to the authority to have access to the pool. However, he did not remember whether any receipt was issued to him or not. He denied the suggestion that neither he had paid any amount towards his entry nor he had gone to swim with deceased Adil that is why he was unable to provide the receipt.
There was a court question put to the witness "What time did you go to the swim and was there other persons present in the Pool?"
To which he replied "There used to be 45 minute slots. I had gone there at about 8.00pm when there was many other swimmers in the pool. We had taken entry one of such slots."
He could not tell as to who from the crowd had taken them to the hospital. He denied the suggestion that he was not present at the spot and that is why he cannot tell the make and model of the vehicle in which the victim was taken to the hospital. He denied the suggestion that he was deposing falsely.
4e. PW-5 is Sh. Farhat Abbas. He deposed that on 21.04.2010, his nephew Adeel Iqbal (Bhanga) drowned at Sports Complex, Jasola Vihar. Thereafter, he was taken to Apollo Hospital for Treatment where he died on 02.05.2010. On 03.05.2010, he Digitally signed by Aridaman Aridaman singh STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 5 Of 22 singh cheema cheema Date:
2024.09.19 16:42:03 +0530 identified the dead body of his bhanja at AIIMS Mortuary. IO recorded his statement. Same is Ex.PW5/A. In his cross-examination he admitted that he was not present at the spot at the time of incident. He did not remember whether IO had recorded any other statement at AIIMS Mortuary in his presence. As per his knowledge, Deceased Adeel was member of the said Sports Complex. He denied the suggestion that he had not given the statement Ex.PW5/A in manner as stated by him. He denied the suggestion that his statement was recorded at the Police Station. He denied the suggestion that he was deposing falsely.
4f. PW-6 is retired SI Joginder Singh. He deposed that on 21.04.2010, he was posted as SI at PS Sarita Vihar. On that day, on receipt of DD No.41A, he alongwith Ct. Balwan Singh went to Apollo Hospital, where one person namely Adil Iqbal was admitted as he drowned in a swimming pool, Jasola Sport Complex. No eye witness was found present at the hospital and abovesaid Adil Iqbal was declared unfit for statement. Thereafter, he alongwith Ct. Balwan went to Jasola Sports Complex, where incident had taken place. He inquired there but no eyewitness were found there. Thereafter, he prepared rukka which is Ex- PW6/A, on abovesaid DD entry and same was sent to PS through Ct. Balwan for registration of FIR. After registration of FIR, Ct. Balwan returned back to Sport Complex Jasola and handed over the copy of FIR alongwith original rukka to him. Thereafter, they returned back to PS. On 22.04.2010, at about 10.00AM, he alongwith Ct. Balwan again visited the abovesaid Complex. He met Danish at Jasola Sport Complex who claimed himself to be an eyewitness. He recorded statement of Danish u/s 161 CrPC. He also prepared site plan at his instance which is Ex-PW6/B. On 02.05.2010, the abovesaid Adil Iqbal was declared dead by treating Doctor at Apollo Hospital Delhi.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 6 Of 22 cheema Date:
2024.09.19
16:42:09
+0530
On 03.05.2010, ASI Suraj Singh got conducted postmortem of deceased Adil Iqbal at AIIMS Mortuary. During investigation, he recorded statement of witnesses and also collected the relevant documents from Jasola Sport Complex. He received relevant documents from Lt. Col. (Retd.) P.B. Pathak Secretary/ NSSC/ Jasola Vihar, Delhi vide already Ex-PW2/A. The abovesaid documents include relavant pages of entry register for the month of April 2010, receipt book, contact agreement of swimming pool and terms and condition of tender with respect to said swimming pool (Ex- PW2/A (colly containing 23 pages). During investigation, he interrogated the accused Dinesh Tokas (who was present in the court that day and correctly identified by the witness). Thereafter, he arrested and personally searched accused Dinesh Tokas vide memo EX-PW6/C and D. He also recorded his disclosure statement and prepared pointing out memo at his instance as PW6/E and F, respectively.
In his cross examination he stated that after receiving of DD NO.41A, he reached at the Apollo Hospital at about 9.40PM. Family member of Adil were present at the hospital but he could not recognize their identity. (he volutarily stated that Father and one of the lawyer were present there alongwith other family members and relatives). He admitted that he did not record the statement of any of the family member of the Adil Iqbal no one present there was acquainted with the facts and circumstances of the present case. He remained at the hospital for about 40 minutes. He admitted that during this period, he had not prepared any documents. It was around 11.30PM, when he alongwith Ct Balwan reached at the spot. He found that the sport complex was closed and no one was found. Site plan was prepared in the presence of abovesaid Danish. He admitted that he did not obtain signature of Danish on site plan. He denied the suggestion that he prepared the site plan at PS. He denied the suggestion that witness Danish was not present at the spot at the time of preparing site plan at the spot. He admitted that the witness Danish stated in his statement that Digitally signed by Aridaman Aridaman singh singh cheema cheema Date:
STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 7 Of 22 2024.09.19 16:42:15 +0530 when he raised alarm after noticing that Adil Iqbal has drowned in the pool, some life guard came there and lift Adil Iqbal who was lying inside swimming pool and taken him out of the swimming pool. (He voluntarily stated that during investigation, it was found that no record of life guard was maintained at said swimming pool. He admitted that the deceased was breathing when he was taken to the hospital. He admitted that deceased Adil Iqbal was not a member of the sport Complex. (He voluntarily stated that he made his entry in the same pool after paying daily fee for guest member). He denied the suggestion that said Adil Iqbal had died due to negligence of the treating doctors. He denied the suggestion that Adil Iqbal had not died due to negligence on the part of the accused. He further denied the suggestion that there were many life guards to take guards in emergency situation. He denied the suggestion that deceased Adil had died due to his own negligence. He denied the suggestion that he was deposing falsely. When he reached the sports Complex on 22.04.2010 many persons including DDA Staff were present at the spot. He could not recall whether he inquired those public persons or not. Even he cannot the name of the DDA Officials who were present at the spot on 22.04.2010. He denied the suggestion that he had not carried out the investigation in manner as stated by him.
He denied the suggestion that all the seizure memos were prepared at police station.
4g. PW-7 is Dr. Ramniwas Yadav. He deposed that in 2010, he was posted in AIIMS hospital as Jr. Resident. He was trainee 1 st year at the relevant time. He prepared the MLC of the deceased (he does not remember the name of the deceased person due to lapse of time), which is Ex. PW7/A. He opined that in this case cause of death is shock due to hypoxic encenphalopathy which is a complication of asphaxia due to drowning. Thereafter, he submitted this aforesaid MLC in the Forensic Medical Department, AIIMS, New Delhi.
In his cross examination he admitted that he had not done any treatment of the deceased. He does not know who gave the treatment to the deceased. He could not Digitally signed by Aridaman Aridaman singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 8 Of 22 singh Date:
cheema 2024.09.19 16:42:20 +0530 say whether any test was recommended by any doctor of the deceased. He joined the training from January 2009 to May 2010. He could not say on which date the deceased was admitted to the hospital or for how many days he remained admitted in the hospital. He denied the suggestion that he had prepared the MLC in mechanical manner without seeing the diagnostic history of the patient. He denied the suggestion that he was not in capacity to prepare the MLC as he was a trainee. He could not say whether the death was caused due to the medical negligence of the doctors. He denied the suggestion that he was deposing falsely.
5. It is pertinent here to mention that PW Ct. Balwan was dropped during the trial from the list of witnesses vide order dated 16.02.2018.
6. After completion of prosecution evidence all the incriminating material were put to accused and his statement was recorded U/s 313 Cr.P.C separately. He denied his liability and he stated in their defence that he had not committed any offence and had been falsely implicated by police officials. The victim was not member of the complex and on that day the life guards were in the changing room. There was no negligence on his part/firm. The witnesses had deposed against him as they were interested witnesses. The accused chose to lead DE.
7a) DW-1 Dinesh Tokas, he deposed that on 21.04.2010, he was at swimming pool of Saket DDA Sports Complex, New Delhi. At about 08:00 PM, he received a call from my life guard namely Jagjit stating that one person has drowned in the swimming pool at Netaji Subhash Sports Complex Jasola, New Delhi and they are going to Apollo Hospital with drowned person with the company car make Honda City (DL4CAH2988) which was usually available at swimming pool at Jasola, for the staff. Later, when he reached the hospital, he came to know that the name of the victim was Adil. Immediately, he rushed towards the hospital, when he reached Digitally signed by Aridaman Aridaman singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 9 Of 22 singh Date:
cheema 2024.09.19 16:42:27 +0530 Apollo Hospital his lifeguard Jagjit, medical attendant namely Avinash, attendant Ravinder and one lifeguard namely Joginder met him there. Parents of the drowned person and one Danish were also met him in the Apollo Hospital. Drowned person had already been admitted in the hospital by the lifeguard and others. The doctor told me that the condition of the drowned person is fine and they had already given treatment to him. He remained in the hospital overnight. He used to visit daily to know the condition of the drowned person and also used to meet his parents. After 11 days the treating doctor told him that he is no more.
He was cross-examined on behalf of the State in which he stated and admitted that that the incident of drowning did not occur in his presence. He reached the hospital after receiving the call in around 30-40 minutes. He denied the suggestion that he was deposing falsely to save himself. He denied the suggestion that the drowning occurred due to his negligence for not taking proper precautions as there was no lifeguard deputed by him. He denied the suggestion that he was deposing falsely.
Court question was put to the DW-1 regarding who was the proprietor of WMM Enterprise to which he stated that he was the propritor of WMM.
Another court question was put up to him as to who had the contract of maintenance and operation of Netaji Subash Sports Complex swimming pool, Jasola Vihar. DW-1 answered there are two types of contracts, one is running maintenance of filteration plant and one of deck area service. Deck area service contract was with me.
Another court question was put up him as what is covered in deck area service contract to which he answered only provision of manpower such as lifeguard, manager, medical attendant and other attendants. Remaining work is looked after by the DDA.
Aridaman singh cheema Digitally signed by STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 10 Of 22 Aridaman singh cheema Date: 2024.09.19 16:42:33 +0530 Another court question was put to him as what was the operating time of the swimming pool on 21.04.2010 to which he answered morning 06:00 AM to 11:00 AM and evening 03:00 PM to 09:00 PM. Vol. One person can access the pool for only 45 minutes and remaining 15 minutes are for changing etc. Another court question was put to him stating that on 21.04.2010, between 07:30 PM to 09:00 PM, was lifeguard and medical attendant present at the swimming pool. To which he answered yes, they were present. Joginder and Jagjit were the lifeguards and Avinash was the medical attendant. 04 lifeguards and 01 medical attendant, 02 lady attendant and 02 male attendants and 01 manager was present at the swimming pool. Only the lifeguards and attendants were present at the main area of the swimming pool.
Another court question was put to him stating what were the dimensions of the swimming pool. To which he answered 25 x 12.5 metres approx (length x breadth) Another court question was put up to him stating if there was the entry of visitors to the swimming pool regulated by WMM Enterprises. To which he answered no. The same was regulated by DDA.
8b) DW-2 Sh. Jogender. He deposed that during the relevant time, he was working as life guard. Presently also, he was working as life guard at DDA Sports Complex, Pitampura, Delhi. On 21.04.2010, he was working as life guard at DDA Sports Complex, Jasola. On 21.04.2010 between 07.00 PM to 07.45 PM, he was on duty as life guard, and had ensured that all members who were swimming and present in the concerned swimming pool, had left the swimming pool. At 07.45 PM, the swimming pool was empty. Thereafter, in the 15 minutes slot before the next shift, our duty is at the gate. He was standing at the gate, when one boy came running towards us. He told him"mera ek friend andar doob raha hai ". Thereafter, he blew the whistle and he ran to the swimming pool. Jagjeet and Ravinder, the other two life guards, who were also standing at the gate, came with him to the pool. Jagjeet and he jumped into the Digitally signed by Aridaman Aridaman singh STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 11 Of 22 singh cheema cheema Date:
2024.09.19 16:42:37 +0530 pool and they brought out the boy, who was drowning in the pool. Our medical attendant, Anil came to the spot and provided first aid in the form of pumping of chest to the said boy. Anil also put oxygen mask on the said boy. Thereafter, they took the boy to the Apollo hospital with the company car. They also informed the accused, as soon as they reached Apollo hospital. That day, he had brought a photocopy of two life guard awards and and his certificate are Mark DW2/A and Mark DW2/B. He further stated that this was his true and voluntary statement.
He was cross-examined on behalf of the state and stated that on the day of the incident, his duty hours were 06.00 AM to 11.00 AM in the morning and 03.00 PM to
09.00 PM in the night. The record of the number of visitors who are attending the swimming pool was maintained/kept by the DDA. In this regard, the officials of DDA sit at the gate of the swimming pool and maintain the register of entry and exit. When the visitors use the swimming pool, there were four guards who stand surrounding the swimming pool. When the shift gets over, they make sure that all the visitors come out of the pool. He admitted that it was the duty of the life guard to ensure that the pool was empty once they blew the whistle. He admitted that when they blew the whistle after vacating the pool and stood by the gate, one person still came out of the pool. He admitted that despite vacating the pool, there were two visitors who were still in the pool. He voluntarily stated that the distance between the pool and the gate where they were standing was about 10 feet. He admitted that when he alongwith life guard Jagjeet went back to save the deceased, he was still in the pool and was trying to save himself by struggling to move his hands in the water.
He denied the suggestion that that the life guards were not vigilant enough while getting the swimming pool vacated, i.e., why two persons were still left behind in the pool. He denied the suggestion that due to the negligence of the staff members present and negligence of the management, the accident happened. He denied the suggestion that drowning happened due to the negligence of the accused persons as they had not provided adequate safeguards at the site.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 12 Of 22 cheema Date:
2024.09.19
16:42:43
+0530
8c) DW-3 Sh. Jagjeet. He deposed that on 21.04.2010, he was working as a life
guard at Netaji Subhash Sports complex, Jasola. He was on duty on the said date from 06.00 AM to 11.00 AM and 03.00 PM to 09.00 PM. When the shift of 07.00 PM to 08.00 PM, ended at 07.45 PM (since they remove all swimmers from the pool 15 minutes prior to the shift ending time, as the said time was then used for showering and change of clothes), he alongwith Joginder and two other life guards came outside and were getting the entry of the members of the next shift at the gate. At the said time, one boy came running to us and said "mera dost paani mein kood gaya hai". Upon hearing this, he blew the life guard whistle and Joginder and he rushed to the pool. They saw "ek ladka doob raha hai". Both Joginder and he entered the pool and got the boy out. Once the boy was removed from the pool, they called the medical attendant namely Anil, who gave the boy CPR and also put oxygen support. Thereafter, they rushed the boy to the Apollo hospital. Thereafter, Joginder called the accused (was present in the court and correctly identified by the witness) over the phone and asked him to come to the hospital. They got the boy admitted in Apollo hospital and his family members reached at the hospital. That day, he had also brought the photocopy of the training certificate issued by YMCA to him for acting as life guard. Copy of the same is Mark DW3/A. In his cross-examination by Ld. APP for the State he stated that the record of the visitors attending the swimming pool was kept by DDA officials. He does not know the name of the boy who had come running to them and informed him regarding the victim. It was around 07.55 PM, when the boy informed them of the victim. He admitted that at 07.45 PM, the pool was empty. He admitted that no visitors were allowed to enter the pool after 07.45 PM. He voluntarily stated that the next shift started at 08.00 PM. He denied the suggestion that the boy had drowned in the pool after 08.00 PM and since they were not available for our duty, he was deposing falsely to save himself and the accused from liability. The pool area was well lit. He denied the suggestion that at the time of incident, the pool area was dimly Aridaman singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 13 Of 22 Digitally signed by Aridaman singh cheema Date: 2024.09.19 16:42:48 +0530 lit and that he was aware that relevant/required light was not available and that is why to save accused from liability, he was deposing falsely that day. He admitted that he had not produced the original certificate issued by YMCA that day. He stated that he can produce the same. He admitted that in the said photocopy of the certificate, there was no mention of his employment at Netaji Subhash Sports Complex or at any other stage. He admitted that document Mark DW3/A is only a proof of training and not of employment. He denied the suggestion that the entry and exit of visitors was monitored by the life guards of the contractor. He denied the suggestion that no one can enter the premises without verification/checking of the receipts of guests or members permitted to use the swimming pool. He denied the suggestion that the name of the medical attendant on duty on the relevant date was Avinash. He does not know the name of the victim who had drowned on the date of incident. He denied the suggestion that he does not know the name of the victim or the name of the medical attendant as he was not present at the time of incident and now he was deposing falsely in connivance with the accused. He denied the suggestion that he was deposing falsely at the behest of the accused.
9. I have heard Ld. APP for State and Ld Defence Counsel for both the accused persons. Ld. APP for the state has stated that PW-4 has stated in his examination in chief that the deceased was with him when they went for swimming and he drowned as there was no life guard present there. It is a clear cut case of negligence on behalf of the agency maintaining the swimming pool and the fact of death has been confirmed by the PM Report. Ld. APP for the state has further stated that in the cross-examination of defence witnesses, DW-1 had admitted the contract of Deck Area of Netaji Subhash Sports Complex swimming pool, Jasola Vihar is with him. He has further stated that accused was negligent in maintaining the swimming pool.
Digitally signed Aridaman by Aridaman singh cheema singh Date: cheema 2024.09.19 16:42:53 +0530 STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 14 Of 22
10. Per contra, Ld. Counsel for accused has stated that PW-4 Danish Ali had stated that they were given 45 minute slot and the same was over as he heard a whistle which was a sign to indicate the swimming time is over. Further, he stated that PW-4 came out of the pool and could not see deaceased Adil and he went inside the changing room to locate deceased Adil but he was not there as well. When PW-4 came back he found the body of deceased Adil in the pool. Ld. Counsel for accused has further stated that PW-4 had given contradictory statement as previously in his examinaton-in-chief he had stated that there was no life guard but later on in his examinaton-in-chief on the same date he had stated that there were life guards present. Further, Ld. Counsel for accused had stated that the deceased Adil and PW-4 had made an entry as a guest on behalf of some member and that member has not been made prosecution witness. He has further stated that prosecution is unable to prove that on whose membership the deceased was swimming. He had further stated that there are contradictions between the statement of PW-4 and PW-5. PW-4 Danish had stated that they were not the members of the said Sports Complex, whereas PW-5 Farhat Abbas had stated that deceased Adil was member of the said Sports Complex. He has further stated that there is no rash and negligent act on part of accused.
11. Ld. Counsel for accused had relied upon the judgement of Hon'ble High Court of Madhya Pradesh CRR NO. 1369 of 2016 titled as Surendra Singh Vs. The State of Madhya Pradesh on 06.04.2021:
"..............She has submitted that Manish Rajani was permitted to enter into the swimming pool as a guest member and as per bylaws (Exh. P/14) the Commission of Municipal Corporation or its employees are not responsible for any accident that taken place while swimming in the swimming pool. Therefore, there is protection available to the present applicant from prosecution. As per the evidence of P.W.1 to P.W.4, deceased Manish Rajani was a good swimmer. It has also been admitted by them that vide Exh. D/1 Manish Rajani paid the charges and he was permitted to enter the swimming Digitally signed by Aridaman Aridaman singh STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 15 Of 22 singh cheema cheema Date:
2024.09.19 16:42:58 +0530 pool. In the receipt also, it was specifically mentioned that the guest would be responsible for any accident. None of the witnesses took the name of the applicant, responsible for the accident to the police. The applicant has been made accused only because he was posted in the swimming pool as a trainer without there being any negligence on his part. P.W.4 has deposed in the court that the safety devices like tubes and ropes were available in the swimming pool. The deceased died due to an unavoidable accident for which no one can be held responsible, hence the conviction and sentence passed by both the courts below are liable to be set aside....."
4. .............Learned counsel has further submitted that the Municipal Corporation can be held responsible under the tortuous liability under civil law, but there is no culpability attached with the said incident. As per the bylaws, it was made clear to the visitors and members that the Commissioner or the employees of Municipal Corporation can be held responsible for any accident. Therefore, the applicants cannot be punished under section 304-A of the IPC. In support of his contention, he has placed reliance over the judgment passed by this Court in the case of B.P. Ram & others V/s. State of M.P.: 1991 Cr.L.J.
473. He has also placed reliance on the judgment passed by the High Court of Madras in the case of Narender Bir Singh V/s. State: 2010-1-LW(Cri.) 626 in similar facts and circumstances, where the President and Manager of the Hotel were made accused on account of death in the swimming pool. The High Court of Madras has quashed the charge u/s. 304-A of the IPC on the principle that 304-A applies to the cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. Section 299 of IPC includes culpability of mind whereas Section 304-A excludes culpability of mind menrea plays a major role to distinguish both. Knowledge of the person that his act would directly result in causing death is culpability. If the person does not intend even to cause harm but the act resulted in causing death then culpability is absent. A similar view has been taken by the High Court of Karnataka in the case of Melvin Kumar V/s. K.S. Harisha :
2019 (3) KCCR 2353 in which it has been held that in order to fasten the criminal liability for offence u/s. 304 of IPC, the prosecution is required to prove that the act of the accused Digitally signed by Aridaman Aridaman singh singh cheema cheema Date:
STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 16 Of 22 2024.09.19 16:43:04 +0530 was the proximate and immediate cause of death and that the death was caused without the intervention of another person's negligence......"
12. Ld. Counsel for accused had further relied upon the judgement titled as Ashok Kumar Nayyar Vs. The State on 01.05.2007 passed by Hon'ble High Court of Delhi:
"...........16. No doubt some judgments such as State of Maharashtra Etc. v. Som Nath Thapa Etc. JT 1996 (4) SC 615 have indicated that in charges of rape etc. the Court should avoid embarking on detailed consideration of the probative value of materials. The decision in Rajbir Singh's case is also to that effect. However, in my opinion these do not detract from the basic time tested norm that the Court has to form a reasonable opinion about existence of grave suspicion, regarding commission of the offence. Equally if two versions are possible, the one supporting the accused has to be preferred. In this case the entire materials before the Court are in the form of statements. There is a clear conflict about the facts alleged. Besides the informant there is no one speaking about the incident as alleged by her. The police constable who was admittedly on the spot, stated that there was no quarrel as described by her and the two independent witnesses again admittedly present, gave a completely different picture pointing to the informant starting a quarrel with them. They clearly state that the petitioner did not threaten, assault or abuse the informant...."
13. In a case involving death by drowning punishable u/s 304A of IPC the prosecution is required to prove the following essential ingredients:
(i) Death due to drowning,
(ii) Identity of the accused,
(iii) Rash or negligent act of the accused which would lead to drowning of deceased.
Digitally signed by Aridaman Aridaman singh singh cheema cheema Date:
2024.09.19 16:43:08 +0530 STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 17 Of 22
13. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
14. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of " S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
15. To understand the concept of rash or negligent act under Section 304(A) of IPC, it would be proper to refer to the decision of Hon'ble Supreme Court in the case of Prabhakaran v. State of Kerala, (2007) 14 SCC 269 : (2009) 1 SCC (Cri) 873 at page 271, wherein the Hon'ble Supreme Court proceeds to hold that only culpable negligent act and rashness amounts to an offence. The relevant para is culled out as follows:
"7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will Digitally signed by Aridaman Aridaman singh singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 18 Of 22 cheema Date:
2024.09.19 16:43:14 +0530 always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused." (Emphasis supplied) And Was Not The Proxinate And ... vs And The Factum Of Death. Thirdly ... on 18 November, 2020
16. Further it would be apt to quote another decision Hon'ble Apex Court in the case of Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra , (1965) 2 SCR 622 : AIR 1965 SC 1616 : (1965) 2 Cri LJ 550 wherein, after referring to a pre−independence judgment, the yardstick for proving the criminal negligence act under Section 304(A) of IPC is held to be such that it must be proximate and efficient cause without the intervetion of a third party. The relevant para no.3 is reproduced below:
"3. We may in this connection refer to Emperor v. Omkar Rampratap [(1902) IV Bom LR 679] where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows:
"To impose criminal liability under Section 304-A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of Section 304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, Digitally signed by Aridaman Aridaman singh singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 19 Of 22 cheema Date:
2024.09.19 16:43:19 +0530 would not be enough to make him liable under Section 304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was therefore in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proxinate and efficient cause without the intervention of another's negligence. The appellant must therefore be acquitted of the offence under Section 304-A." (Emphasis supplied)
17. In the present case, PW4 had failed to speak anything with regard to the rash or negligent act of the accused person apart from a simple naration that there was no life guard near the swimming pool which he had later on contradicted on the same date by stating that there was insufficient lightening but life guard was available near the pool. The other witnesses PW-2, PW3 and PW-5 are the witnesses who were not present at the spot. In the present case PW-4 is the witness of the spot of incident. He had stated in his examination-in-chief that PW-4 and deceased Adil were beginners in swimming and they were swimming in the area depth of only 3ft. but later on deceased Adil went towards slightly deeper portion of the pool. Nowhere in his testimony, PW-4 had stated any reason that why deceased Adil went towards the deeper portion of the pool when both of them were beginners in swimming. There is no allegation regarding any wrong doing against the deceased or PW-4 by the accused person.
18. An act of homicide under section 304 A IPC is punishable only if the same is done either negligently or rashly. Such act must also be the immediate cause of death. Any act or omission which can be said to be remote cause of death is not criminal in terms of section 304A IPC. In the present case, the deceased died due to drowning when he was swimming in the pool. The accused is alleged to have been given the maintenance work regarding the deck area of the swimming pool. Further, the register entries and the payment receipts does not mention any time during which the deceased and PW-4 went for swimming.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2024.09.19
16:43:24
STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 20 Of 22 +0530
19. 24. Admittedly, the deceased died due to drowning in the pool and there is no doubt about this fact. But there is hardly any evidence to show that the death of the deceased took place due to any immediate act or omission on the part of the accused which may amount to culpable rashness or negligence. Indeed, no connection has been established by the evidence between the death of the deceased and any act of the accused. The only eye witness PW-4 have given contradictory statements regarding the presence of lifeguards at the spot of incident. To attract the provisions of section 304A, the rash or negligent act of the accused must be the proximate cause of death.
20. In Kurban Hussain vs. State AIR 1965 SC 1616, it has been held by the Hon'ble Supreme Court that in order to sustain conviction under section 304A IPC, the death should have been the direct result of as rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another's negligence.
21. In the present case, other persons were also present at the spot at the time of accident. As per the testimony of PW-4, one person had blown the whistle to signal that the time period of swimming is over and PW-4 came out but he could not locate deceased Adil and PW-4 later on came to know that deceased Adil is still in the swimming pool. In the present case, the cause of death as per the testimony of PW-7 Dr. Ramniwas Yadav is shock due to hypoxic encenphalopathy which is a complication of asphaxia due to drowning.
22. Thus by applying the above decisions to the present case in hand, inorder for the prosecution to prove the ingredients of Section 304(A) of IPC, there should be clear and cogent evidence to show that the death has taken place due to the direct rash Digitally signed by Aridaman Aridaman singh singh cheema STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 21 Of 22 cheema Date:
2024.09.19 16:43:30 +0530 or negligent act of the accused. Secondly, there should be proximaty between the rash or negligent act of accused and the factum of death. Thirdly and more importantly, there should not be a third party intervention or contributory negligence.
23. In order to hold a person guilty of an offence u/s 304-A IPC, it is of paramount importance to establish that the act must be caused in rash and negligent manner. In the present case, from the testimony of the PWs, this court is of the view that the prosecution is unable to prove the case beyond reasonable doubt. Though, one precious life has been lost in an accident, however, same cannot be ground for convicting the accused.
24. In view of the above discussion and in light of above-mentioned case laws, the court is of the view that the prosecution has failed to prove its case against the accused. The prosecution has failed to prove that the death of Adil was caused due to the act of accused in rash and negligent manner.
25. The accused is entitled to the benefit of the deficiencies and doubts in the case of prosecution. In view of the same, the accused Dinesh Tokas S/o Sh. Trilok Singh is acquitted for the offence u/s 304-A IPC.
Copy of digitally signed Judgment be placed on the case file.Aridaman Digitally signed
by Aridaman
singh cheema
Decided on 19.09.2024 singh Date:
cheema 2024.09.19
Announced in open court. 16:43:37 +0530
(Aridaman Singh Cheema)
JMFC-05/SED/Saket Courts/ 19.09.2024
This judgment contains 22 pages and all pages bears my digital signatures. Digitally signed by Aridaman Aridaman singh singh cheema Date: 2024.09.19 cheema 16:43:43 +0530 (Aridaman Singh Cheema) JMFC-05/SED/Saket Courts/ 19.09.2024 STATE VS. Dinesh Tokas. FIR No. 121/2010 Page no. 22 Of 22