Delhi District Court
State vs . Ram Avtar on 25 August, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
FIR NO. : 191/04
PS : Preet Vihar
Offence complained of : 304 A IPC
Date of commission of offence : 17.04.2004
Unique Case ID No. : 02402R0143282006
STATE Vs. Ram Avtar
S/o Sh. Ramesh Chand
R/o H. No. 19C, Pocket B, Siddharth Extn., PSSun Light Colony, Delhi.
.............. Accused
SI Pati Raj, PSPreet Vihar, Delhi.
............. Complainant
Date of Institution : 02.03.2006
Plea of accused : Pleaded not guilty
Date of reserving judgment/ order : 25.08.2012
Date of pronouncement : 25.08.2012
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 17.04.2004 at about 3:00 PM at
DDA Income Tax Building, Distt. Centre, Laxmi Nagar, Delhi, falling within the
jurisdiction of Police Station Preet Vihar, accused Ram Avtar being a contractor of
the construction work being carried out at the aforesaid building, failed to take
FIR No. 191/04 State Vs. Ram Avtar Page No. 1 / 13
proper care and precaution as he failed to provide strong rope for removal of
shuttering, because of which one worker namely Sarful came under the shuttering
and received injuries, which ultimately resulted into his death. Thus, accused Ram
Avtar is alleged to have committed an offence punishable under section 304 A IPC.
FIR
On the basis of the said allegations and on the complaint of the
complainant SI Pati Raj an FIR bearing number 191/04 under section 304A IPC
was lodged at Police Station Preet Vihar on 17.04.2004.
CHARGE
After investigation, chargesheet under section 173 Cr.P.C was filed
on 02.03.2006.
The accused was summoned to face trial and he was supplied the
copy of charge sheet as per section 205 Cr.P.C.
On the basis of the chargesheet, a notice for the offence punishable
under section 304A IPC was framed against accused Ram Avtar and read out to
the said accused, to which the accused pleaded not guilty and claimed trial on
09.05.2011.
JUDICIAL RESOLUTION To bring home the guilt of causing injuries by negligence, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows: (1)That the incident actually took place.
(2)That the incident took place due to rash and negligent behaviour of the accused as he failed to take proper care and precaution. (3)That the accused was the person who was responsible for the incident directly i.e., there is direct nexus between the incident and FIR No. 191/04 State Vs. Ram Avtar Page No. 2 / 13 the negligence of the accused.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks 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.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
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Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows:
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2005 A.I.R. (SC) 1064.
"Section 304A 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 304A. 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. 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 FIR No. 191/04 State Vs. Ram Avtar Page No. 4 / 13 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.
As noted above, " Rashness " consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR 119)".
In order to prove the above said allegations, the prosecution has cited 9 witnesses, of which material witnesses/ eye witnesses are Mohd. Tuka, who has FIR No. 191/04 State Vs. Ram Avtar Page No. 5 / 13 been examined as PW1 and Hajibul Rehman, who has been examined as PW2. All the other witnesses cited by the prosecution are all formal witnesses and none of them is a witness to the incident and sufficient only to prove that deceased received injuries, which ultimately resulted into his death and that an FIR with respect to the said incident was lodged on the same day at PS Preet Vihar vide FIR bearing No. 191/04.
PW - 1 Mohd. Tuka and PW 2 Hajibul Rehman both are the material witnesses in the present case but they did not support the story of the prosecution in their examinationinchief and also in their crossexamination conducted by Ld. APP at length.
PW - 1 Mohd. Tuka deposed that "8 years and 9 months ago I along with other labours was working at 5th floor on a construction site under accused Ram Avtar. Suddenly we had heard the noise that someone had fallen. I reached there along with the labours. I had seen that he was Sarphool, my brotherinlaw. I cannot say how he had fallen. Wooden planks were being thrown by the labours above and the same were being gathered by the deceased together. Accused Ram Avtar is present in the Court today (correctly identified)."
From the examination in chief it is clear that this witness made no mention of any negligence on the part of the accused, rather, he did not speak anything about any rope being provided by the accused to the deceased for bringing down wooden planks/ shuttering.
The witness was crossexamined at length by Ld. APP for the state, however, the witness did not support the prosecution story as he stated : "I cannot say whether any rope provided by Ram Avtar to the labours for bringing down the shuttering plates at ground floor. Vol. I had not seen any rope. I had not FIR No. 191/04 State Vs. Ram Avtar Page No. 6 / 13 stated to the police that a rope was provided to us to bringing down the shuttering plates, which was very weak and we objected for the same but accused Ram Avtar insisted us to use the same and when the labours were using the said rope to bring down the said plates it broke and the plate fell on the head of Sarphool ............. Vol. I had never given any statement to the police".
The witness was also crossexamined by Ld. Defence Counsel in which the witness stated that immediate supervision of the work at the construction site was done by Munshi/ Supervisor and that contractor did not come daily at the work place. His crossexamination in this regard is : "It is correct that the articles/materials are provided by the Munshi at the work place to labour. It is correct that the contractor does not come daily at the work place ..................... The supervisor/munshi controls our work. It is correct that the contractor was not present at the spot on the day of incident. The said work was being controlled by supervisor/munshi only. The attendance is marked by Munshi only and salary was distributed by the Munshi."
From the testimony of this witness it is clear that the said witness has failed to support the prosecution story and besides this the only witness who could bring home the charge to the accused is PW2 Hajibul Rehman. However, this witness also failed to support the prosecution story and he stated in his examination in chief that : "Nearly 8 yeas and 9 months ago I was working in a house at Laxmi Nagar of about 10 storeyed. Many labours were working there. Contractor of the said construction site was Ram Avtar who is present in the Court today (correctly identified). On the relevant date planks used in shuttering were being removed by a rope, suddenly which broke and the planks fell down and Sarphool who was standing away suddenly came and planks fell down on him. There was no mistake of Ram Avtar."
FIR No. 191/04 State Vs. Ram Avtar Page No. 7 / 13
From the examination in chief it is clear that this witness made no mention of any negligence on the part of the accused, rather, he categorically stated that there was no mistake of Ram Avtar. This witness supported the prosecution story at least to the extent that he stated that a rope was being used for the purpose of bringing down planks used for shuttering.
The Ld. APP for the state crossexamined this witness at length to bring on record something that may support the prosecution story but failed in his attempt as the witness stated : "It is wrong to suggest that the materials being used on the site were provided by accused Ram Avtar. It is wrong to suggest that the rope was provided by accused Ram Avtar. It is further wrong to suggest that I had stated to the police that the rope was provided to us by accused Ram Avtar and the said rope was very weak and when we objected for the same, accused Ram Avtar did not pay any attention and insisted to us to use the said rope and when the labours were using the said rope to bring the said plates, it broke and plates fell down on the head of Sarphool who was working there ........................ Vol. the said rope was taken by the labours on their own from godown and guard was present at godown. Vol. I had never given any statement to the police".
This witness was also shown the rope which was seized in the present case, however, he stated that the rope shown to him was not the same which was being used on the date of incident.
The witness was also crossexamined by Ld. Defence Counsel in which he stated : "It is correct that the supervisor/Munshi supervises the daily work at the work place. It is correct that the labour does work on the instruction of the Munshi. It is correct that the materials at the site are provided by Munshi. It is correct that contractor Ram Avtar does not come daily at the site. It is correct FIR No. 191/04 State Vs. Ram Avtar Page No. 8 / 13 that he was not present on the day of incident. Vol. He came at the spot after 8 days from the incident. It is correct that no role of accused Ram Avtar in the said incident. It is correct that he has no fault in the said incident".
From the testimony of these two witnesses, nothing has come on record to establish the negligence on part of accused Ram Avtar, rather, both the witnesses stated that accused was not at fault and had no role in the unfortunate incident that occurred on 17.04.04.
The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses and none of the remaining witnesses is an eye witness to the incident.
The case is at the stage of PE, however, in view of testimony of eye witnesses, prosecution can never prove that the accused provided the rope which was being used by the accused for brining down the planks used in shuttering and that the incident dated 17.04.04 occurred due to his negligence. None of the other witnesses cited by prosecution are competent enough to prove even collectively that the accused was negligent. Thus, there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
The facts of the present case are not such that the principle of res ipsa loquitor may apply to the same.
In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings qua offences u/s 304A IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 FIR No. 191/04 State Vs. Ram Avtar Page No. 9 / 13 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. FIR No. 191/04 State Vs. Ram Avtar Page No. 10 / 13 Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 :
1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a FIR No. 191/04 State Vs. Ram Avtar Page No. 11 / 13 bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3057 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a sevenJudge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings.FIR No. 191/04 State Vs. Ram Avtar Page No. 12 / 13
Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 304A IPC to make the ends of justice meet.
Final Order In the light of testimony of PW1 and PW2 i.e, eye witnesses and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused person to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against the accused Ram Avtar qua offences u/s 304A IPC in the present summons police case and hereby releases the accused Ram Avtar under sections 304A IPC, which shall have the effect of acquittal.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 25.08.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/ KKD/ 25.08.2012 Certified that this judgment contains 13 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/ KKD/ 25.08.2012 FIR No. 191/04 State Vs. Ram Avtar Page No. 13 / 13