Delhi District Court
State vs Hemraj Sharma on 22 November, 2014
IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN MAGISTRATE-06
CENTRAL DISTRICT, TIS HAZARI COURTS
DELHI
FIR No. 71/2000
State V/s Hemraj Sharma
U/S 337/304 A IPC.
PS Partap Nagar
CC No. 47/2G
U. ID No.0240IR0076162000
Date of Institution :06.12.2000
Date of commission of offence :15.04.2000
Name of the complainant : SI Sudhir Singh
Name and address of accused :Hemraj Sharma S/o Lekhraj Sharma
:R/o 36, Partap Vihar, Part-II, Gali no. 2,
:Karari Extension, Nangloi, Delhi
Offence charged with :304 A IPC.
Plea of guilt : Pleaded not guilty.
Final Order :Convicted u/s 304 A IPC.
Date on which order has been reserved : 22.11.2014
Date of pronouncement of Judgment : 22.11.2014
JUDGMENT
1 The Prosecution has filed the charge sheet against the accused Hemraj Sharma. The case of the prosecution in brief is as under:-
That on 15.04.2000 at CSA Colony, Chander Shekhar Azad Colony, within the jurisdiction of PS Pratap Nagar, deceased Lallan Kumar was electrocuted while the work of change of cable wires were in progress under the accused's contractorship and the accused acted rashly or negligently by not FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 1/19 providing necessary means to the said labour Lallab Kumar against the possible hazards and his death was caused due to electrocuted not amounting to culpable homicide.
2 After investigation, charge sheet was filed against the accused for the offence u/s 337/304 A IPC. Accordingly, charge for the offence punishable u/s 304 A IPC was framed against the accused on 18.02.2002, to which he pleaded not guilty and claimed trial.
3 Prosecution examined eleven witnesses in support of its case:-
4 PW 1 Dinesh Tiwari has deposed that about 3/4 years ago, he was sitting in his office i.e zone 421, Bagh Kare Khan, DVB. It was afternoon, suddenly he heard the noise of blast. At that time, A.E, R. K. Singhal was also sitting in the office alongwith him. After hearing the noise of blast, he ran towards the voice. He saw that this was the blade due to short circut in trench and one person was struck between the trench and other person was trying to pull him out. He also helped him to bring that person out of trench. The person who was struck in trench was the labour of Thekedaar Hemraj Sharma. Many persons also reached on the spot after hearing the noise. The other staff members including R. K Singhal, A. E., took the injured to hospital. Under the trench main line of 11000 K.V was going on in which the current was flowing. He further stated that incident was of 15.04.2000 at 1.35 PM.
5 PW 2 Sandeep Sharma, has deposed that on 15.04.2000 on the direction of IO, he took photographs of the road of the transformer. He took four photographs which he proved as Ex. P1 to P4 while the negatives are Ex. P5 to P8. After completion of the photographs he handed over the same to IO.
FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 2/19 6 PW 3 HC Narender Singh has deposed that on 15.04.2000, he was posted at PS Pratap Nagar, Delhi. On that day, he alongwith SI Sudhir and Ct. Subhash were on patrolling duty in the area of PP Andha Mughal. At about 1.35PM, DD writer Ct. Rajender Singh gave information through wireless that he has received information through Duty Ct. Manoj Kumar at HRH that one Lallan Kumar has received electric shock and was admitted in Hindu Rao hospital by Asstt. Engineer RK Singhal. Thereafter, he alongwith SI Sudhir and Ct. Subhash reached HRH, where they met HC Shyam Bir and Ct. Amar Pal who told that injured Lallan Kumar has been taken to LNJP hospital. Duty Ct. Manoj handed over MLC no. 4526 of Lallan Kumar to SI Sudhir. Thereafter, they reached LNJP hospital and from there SI Sudhir obtained MLC no. 28787 of Lallan Kumar. At about 3.50 PM Doctor opined on the MLC that injured was unfit for statement. By that time, Astt. Engineer R. K Singhal left the hospital. Thereafter, SI Sudhir prepared a rukka and handed over the same to Ct. Subhash for getting the FIR registered. Thereafter, he alongwith SI Sudhir came at the spot i.e CSA Colony , Andha Mughal, Kishan Ganj, Delhi. Ct. Subhash came back at the spot and handed over the original rukka and copy of FIR to IO SI Sudhir. IO got the spot photographed and prepared site plan.
7 PW 4 R. K. Singhal has deposed that on 15.04.2000, he was posted as AE in zone no. 421, DSKM, Delhi. On that day, he was present at his office at CSA colony and in DVB sub-station office work of shifting of cables was being done by the contractor Jayna. At about 1/1.30 PM, a blast occurred and on hearing the noise of the blast he came out of his office and saw one labour Lallan Kumar, received electric shock while he was changing the cable and thereafter he fell in the trench. Thereafter, he alongwith another labour Rajesh took the injured Lallan Kumar to Hindu Rao hospital, where the Doctor had opined that it was a burn case and referred the patient to LNJP hospital. In the meanwhile C. D Sharma, JE also reached at Hindu Rao hospital. Thereafter FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 3/19 they took the injured to LNJP hospital and got him admitted in the burn ward. Brother of injured namely Prabhu Kumar also reahced the hospital. Thereafter, he left the hospital. On 18.05.2000, he came to know that injured Lallan Kumar had succumbed to the injuries received due to electric shock on 15.04.2000. On 18.05.2000, he received a notice u/s 91 Cr. PC. The said notice was replied by him in which he had stated that contract regarding the changing cable was given to M/s Jyna contractors and proved the reply as Exh. PW4/A. He handed over the contract award papers to the police officials which were seized vide seizure memo Ex. PW4/B. 8 PW-5 K. K. Jain has deposed that by profession, he is a contractor and used to work for the DVB as a Contractor. He had taken contract of changing the cables at CSA colony, DESU Sub station office vide agreement Mark X. He further delegated the contract work to Contractor Hemraj Sharma vide an agreement dated 27.08.1999 Exh. PW5/A. It was a running agreement for all the work issued to M/s Jyna Contractors by DVB. The said agreement was handed over to the police officials by him which was seized vide seizure memo Ex. PW5/B. He also gave written reply Ex. PW5/C to Chowki Indcharge PP Andha Mughal.
9 PW-6 Doctor Veenta Jaiswal has deposed that on 15.04.2000 at about 1.35 PM, one patient Lallan S/o Raghu was brought by Inspector C.D Sharma from DESU who was examined vide MLC no. 28787 by him and proved the MLC as Ex. PW6/A. During the examination, it was revealed that the patient had suffered electric burns on his back thighs, abdomen and arms. He was suffering from 60-65% approximately burns and was referred to burn emergency.
10 PW-7 ASI Duli Chand, has deposed that on 15.04.2000 he was working as duty officer at PS Pratap Nagar. On that day, at about 5.05PM, he had FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 4/19 received one rukka from Ct. Subhash sent by SI Sudheer Singh, on the basis of which he had registered the FIR in the present case and proved the same as Exh. PW7/A while the endorsement made by him on the rukka is Exh. PW7/B. 11 PW-8 Ct. Subhash has deposed that on 15.04.2000, he was posted at PS Pratap Nagar and was on patrolling duty with SI Sudheer Singh and HC Narender. At about 1.35 PM they received an information through DD writer Ct. Rajender on wireless set that Ct. Manoj had informed from HRH hospital that one Lallan Kumar has been admitted in hospital in injured condition due to electric shock. SI Sudheer Singh directed HC Shyam Vir Singh and Ct. Amar Pal to reach at hospital. He alongwith SI Sudheer Singh also reached at hospital, where Ct. Manoj handed over him the MLC of injured Lallan Kumar and stated that Lallan Kumar has been referred to LNJP hospital. Thereafter, he alongwith IO HC Narender went to LNJP hospital. There doctor declared the injured unfit for statement vide MLC no. 28787. SI Sudheer Singh prepared the therir and handed over the same to him for registration of FIR. After registration of FIR at police station, he returned at the spot and handed over the original tehrir and copy of FIR to IO. His statement was recorded by the IO. The injured Lallan was declared dead and his postmortem was got conducted on 19.04.2000 from MAM College and his dead body was handed over to Pappu Jha vide receipt Ex. PW8/A. On 24.05.2000, he accompanied the IO in the investigation of the present case. IO had seized reply to notice U/s 91 Cr.PC alongwith contract award with M/s Jayna Contractors vide seizure memo Ex. PW4/B. On 01.06.2000, IO had seized some other documents including letter on the letter head of Jayna Contractors and the photocopy of agreement. It was pointed out by Sh. K. K Jain in the said letter that the responsibility to look after the spot and the electric appliances/wires was of Hem Raj Sharma. The said documents were seized vide seizure memo Ex. PW5/B. Thereafter, on 03.06.2000 accused Hem Raj sharma was arrested vide arrest memo Exh. PW8/D while his personal FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 5/19 search was conducted vide memo Exh. PW8/E. 12 PW-9 Sh. K. V Singh, Medical Record Clerk from Hindu Rao Hospital has deposed that MLC no. 4526 of injured Lallan Kumar, aged 19 years, male dated 15.04.2000 was prepared by Dr. R. Kothari,who has since left the services of the hospital and his present whereabouts were not known. However, he has seen Dr. R. Kothari while writing and signing in the general course of his duty and proved the MLC as Ex. PW9/A. 13 PW 10 Sh. Prabhu Kumar has deposed that on 15.04.2000 he alongwith his younger brother Lallan was working as a labourer under the contractor ship of accused Hemraj Sharma. His younger brother was doing the work of changing the electricity wires under the contractor ship of accused. On the day of incident, one person had told him that accused was calling him at the spot, where his brother Lallan used to work. He reached at the spot and saw that burnt clothes were lying there. Public persons told him that one person met with an accident while changing the wires and he was taken to the hospital. Thereafter, he came back to his residence and later, came to know that the person who had met with the accident was his brother Lallan. Thereafter, he went to the hospital and came to know that the said hospital had referred his brother to some another hospital near ITO then he reached there and found his brother Lallan in burnt condition/semi unconscious condition. After two-three days, his brother had expired. IO recorded his statement regarding the dead body identification Ex. PW8/B. He received the dead body of his brother vide receipt Ex. PW8/A. He further stated that the place of incident is Chander Shekher Azad Colony, DESU Office, Pratap Nagar and that initially his brother was taken to Hindu Rao Hospital and then to LNJP.
14 PW-11 Dr. Sreenivas M., Associate Professor, Maulana Azad Medical FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 6/19 College has deposed that on 19.04.2000, he was posted as Junior Resident, Department of Forensic Medicine, MAM College, Delhi. On that day, he had conducted the postmortem of the deceased namely Lalan Kumar S/o Raghav aged about 19 years Male. The dead body was brought by SI Sudhir Singh of PS Pratap Nagar. On external examination, he found the following injuries:-
(1) Electric entry wound 5 cm x 3cms on the palm of the right hand in the form of a crater which was bone deep (2) Superficial to deep burn injuries on the right half of the face and neck , front of abdomen, back of chest , front of both arms and forearms, front and back of legs below of the level of thighs. All burn injuries were infected and covered with dirty green foul smelling pus at places . Approximate area of burns:- around 60% of total body surface area.
He further stated that, he had opined the cause of death as Septicemia consequent upon 60% burn injuries caused by electrocution. All the injuries were ante mortem in nature and were caused by passage of electric current and proved his report as Ex. PW 11/A. 15 After conclusion of prosecution evidence, statement of the accused u/s 313 was recorded by the court. The accused claimed false implication in the case. He has further submitted that the DESU had called the deceased Lallan Kumar without obtaining any permission/intimation to him and the deceased was not his employee.
16 I have heard the Ld. APP for the state and Ld. counsel for the accused and perused the record carefully. For ready reference the relevant sections are reproduced herein below:-
Section 304 A IPC reads as under:-
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 7/19 homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
17 To prove its case against the accused Hemraj Sharma, the prosecution has to prove that the death of deceased labour Lallan Kumar was due to rash or negligent act of the accused. To bring home the guilt of the accused, the prosecution has examined PW1 Sh. Dinesh Tiwari, PW4 Sh. R.K. Singhal, PW5 Sh. K.K. Jain and PW10 Sh. Prabhu Kumar, as the main witnesses to the present case.
18 It is the story of the prosecution that the labour Lallan Kumar was working under the Thekedaari of accused Hemraj Sharma, who did not take the reasonable care in changing of cable/wire work and due to this failure of not taking the reasonable care, the Thekedaar Hemraj Sharma acted in rash or negligent manner and made the labour Lallan Kumar to work under such circumstances, which caused his death and therefore, the accused Hemraj Sharma is guilty for the offence punishable u/s 304-A IPC.
19 PW1 Sh. Dinesh Tiwari has deposed that on the date of incident when he was sitting in his office, he heard a noise of blast. He came outside and saw that it had occurred due to short circut in the Trench and that one person was struck in between the Trench and the other person was trying to pull him out. He also deposed that the person, who was struck in the Trench, was a labour of accused Hemraj Sharma. He also identified the accused in the Court that day. He also deposed that under the Trench, main line of 11000 K.V was going on in which current was flowing.
In the cross-examination by Ld. APP for state the PW1 Sh. Dinesh Tiwari has admitted that it is correct that if the electric supply has been off before doing FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 8/19 the job of digging, then no blast would be taken place.
In his cross-examination the PW1 Sh. Dinesh Tiwari has deposed that he has stated to the police that labours of Hemraj were working on the spot, on the advise of the IO. He further stated that it is correct that police had recorded his statement on their own and that the same was not as per his statement. However, in the re-examination by the Ld. APP for state, he again deposed that it is correct that he had previously seen the accused and he has also the knowledge of the fact that the accused was the contractor of the labour Lallan Kumar. He also admitted that the labour Lallan Kumar was doing the work at the spot with the permission and at the instance of the contractor.
20 PW4 Sh. R.K. Singh has deposed that on the date of incident, the work of shifting of cable wire was going on under the Jayna Contractor and at about 1.30 PM he had heard a noise of the blast and when he came out, he saw that one labour Lallan Kumar was fallen in the Trench after receiving the electric shock while he was changing the cable. He was also served with the notice u/s 91 Cr.P.C to which he had given the reply Exh. PW4/A, in which he has stated that the contract regarding changing of cable was given to M/s Jyna Contractors. He also deposed in the cross-examination by Ld. APP for the state that the contractor was responsible for laying down the cable or changing them. He further deposed that it is also correct that the contractor was responsible for checking the cable wire if there was any current or not, before initiating the work. He has further admitted that the electric shock suffered by the deceased was because of the contractor's negligence and the contractor was responsible for the same.
21 PW5 Sh. K.K. Jain deposed that he was the contractor and he had delegated the contract work to Hemraj Sharma vide agreement dated 27.08.1999 Exh. PW5/A. It was a running agreement for all the work issued to FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 9/19 M/s Jyna Contractors by DVB. The said agreement was handed over to the police officials by him and the same was seized vide seizure memo Exh. PW5/B. PW10 Sh. Prabhu Kumar has deposed that his brother was working under the contractor ship of accused Hemraj Sharma. He also identified the accused present in the Court that day.
22 It is argued by the Ld. defence counsel that the testimony of PW1 Sh. Dinesh Tiwari should not be believed in as in the cross-examination he has deposed that he had stated the name of the contractor as Hemraj Sharma on the advise of the police and even his statement was not according to his own version and the same was written by the police on their own. However, again perusal of the record reveals that he has also supported the case of the prosecution in his re-examination dated 05.10.2011 by deposing that he was having the knowledge of the fact that the accused was the contractor of the labour Lallan Kumar and it is correct that the deceased labour was doing the work at the spot at the instance/permission of the contractor i.e accused, present in the Court that day.
23 Perusal of the testimony of PW1 Sh. Dinesh Tiwari shows that it contains discrepancies. It is well settled law that to arrive at the conclusion, the Court has to consider the testimony of the witness, even though if he has turned hostile or the testimony contain certain discrepancies. To bolster my view, I would like to rely upon the judgment of the Hon'ble Supreme Court in the case titled as Lal Bahadur and ors Vs State of NCT of Delhi 2013 IV AD (SC) 416. Para 19 of the said judgment is relevant which is as follows:-
" So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses as pointed out by the counsel for the appellants , are concerned, we have gone through the entire evidence and found that the evidence of the witnesses can not be brushed aside merely because of some FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 10/19 minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses can not be ground to discard the testimony of the eye witness who is none else but the widow of the one deceased . Further, relationship can not be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs Naresh & Others (2011) 4 SCC 324, the Court observe:-
" 30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,namely , errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence can not be safe to rely upon. However, minor contradictions , inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Mere marginal variations in the statements of a witness can not be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
24 As noticed above, those minor discrepancies would not go to the root of the case and shake the basic version of the witnesses when as a matter of FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 11/19 fact important probabilities, factor, echoes in favour of the version narrated by the witnesses. It has also been held by the Apex Court in case of Bharwada Bhoginbhai Hirjibhai Vs State of Gujrat (1983) 3 SCC 217 held that much importance cannot be attached to minor discrepancies on the following reasons:-
" (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(1)Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(2) The powers of observation differ from person to person. What one may notice, another may not.An object of movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(3)By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(4)In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 12/19 reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(5)Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused , or mixed up when interrogated lateron.
(6)A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- Perhaps it is a short of a psychological defence mechanism activated on the spur of the moment.".
25 Also in the case titled as Leela Ram (dead ) through Duli Chand Vs State of Haryana and Anr., (1999) 9 SCC 525, the Court observed:-
The Court shall have to bear in mind that different witnesses react differently under different situations;whereas some become speechless some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that wrong should be remedied. As a matter of fact, it depends upon individuals and individuals.
FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 13/19 There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
26 It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. It this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however, in the absence of the same.
27 Keeping the aforesaid law into consideration, testimony of PW1 Sh. Dinesh Tiwari cannot be rejected in toto and it is the duty of the Court to sift the chaff from the grain and find out the truth from the testimony of the witnesses. PW1 Sh. Dinesh Tiwari has deposed emphatically on oath that he had heard the noise and when he came out, he saw that one person was struck in between the Trench and the other person was trying to pull him out. Therefore, it is crystal clear from his testimony that the deceased Lallan Kumar had fallen in the Trench and such kind of incident had taken place.
29 Coming now to the question whether the accused was the Thekedaar/contractor or not. Ld. Defence counsel has argued that accused was not the contractor and PW1 though has deposed in his testimony that the deceased Lallan Kumar was the labour of the contractor Hemraj Sharma, he has not supported the case of the prosecution in the cross-examination. However, in the re-examination he again deposed that the contractor was accused Hemraj FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 14/19 Sharma and the labour was doing the work at his instance.
30 I have discussed earlier that, the testimony of PW1 Sh. Dinesh Tiwari cannot be rejected in toto and it is the duty of the Court to separate the grain from Chaff. In the examination-in-chief the PW1 Sh. Dinesh Tiwari has deposed that the deceased Lallan Kumar was the labour of the Contractor and in the re- examination by the Ld. APP for state, he has also again supported the case of the prosecution that he had seen the accused prior from the court and the deceased Lallan Kumar was working under him. Further, there is ample evidence on record which proves that accused Hemraj Sharma was the contractor of the aforesaid cable/wire changing work. PW4 Sh. R.K. Singhal has deposed that the contract was given to M/s Jyna Contractors. PW5 Sh. K.K. Jain has emphatically deposed on oath that they had delegated the contract work to accused Hemraj Sharma. He has also proved the agreement dated 27.08.1999 Exh. PW5/A, which clearly shows the same. It was the running agreement for all the work issued to M/s Jyna Contractors by DVB. PW10 Sh. Prabhu Kumar also deposed that his younger brother was a labour under the contractor ship of accused Hemraj Sharma. Therefore, in view of the testimonies of above mentioned witnesses, the prosecution has proved that accused Hemraj Sharma was the Thekedaar of cable/wire changing work at the time of incident.
31 Coming now to the question whether the accused was rash or negligent and the death of deceased Lallan Kumar was the direct result and consequence of the rash or negligent act of the accused. I have already discussed that the testimony of PW1 Sh. Dinesh Tiwari cannot be rejected in toto and help can be taken from the same. PW1 Sh. Dinesh Tiwari has deposed that it is correct that if the electricity supply was off before doing the job of digging, then no incident would have taken place. He further admitted that at the time of incident, current was flowing in the line. PW4 Sh. R.K. Singhal also deposed in his cross-
FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 15/19 examination by the Ld. APP for state that it is correct that the contractor was responsible for laying down the cable or changing the same and that the contractor was responsible for checking the cable wires whether there was any current or not. It is also correct that for the electric shock suffered by the deceased Lallan Kumar, the contractor was responsible as he was negligent. It is argued by the Ld. Defence counsel that accused was not acting in rash or negligent manner.
32 Let us first discuss as to what amounts to rash or negligent act:
Rash or negligent act-- A rash act is primarily an overhasty act and is thus opoosed to a deliberate act, but also includes an act which, though it may be said to be deliberate, is yet done without due care and caution. (Nga Myat Thin (1898)PJLB 426 Mohd. Aynuddin AIR 2000 SC 2511: 2000 Crl LJ 3508 (SC): (2000) 7 SCC 72: 2000 SCC (Cri) 1281: (2000) 8 JT 317: (2000) 3 Crimes 119 (SC). Illegal omission is 'act' under this section and may constitute an offence if it is negligent. (D'Souza Vs. Pashupati Nath Sarkar (1968) Cri LJ 405 (Cal). A rash act can be deliberate act in the sense that it was done without due care and caution. (Mohd. Aynuddin, supra).
Criminal rashness "is hazarding a dangerious or wanton act with the knowledge that is is so and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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." (Idu Beg (1881) 3 All 776, 779, 780. Bhalchandra AIR 1968 SC 1319: (1968) Cri LJ 1501(SC)Smith (1925) 53 Cal 333).
FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 16/19 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. (Per alderson, B. in Blyth Vs. Birmingham Waterworks Company (1856) 11 Ex 781, 784). The Supreme Court has observed to the same effect. (Bhalchandra AIR 1968 SC 1319: (1968) Cri LJ 1501 (SC). In order to establish criminal liability the facts must be such that the negligence of the accused goes beyond a mere matter of compensation between citizens and shows such disregard for the life and sfety of others as to amount to a crime against the State and conduct deserving punishment. (Chhotey Lal (1944) ALL 674, 677: Tika Ram (1950) ALJ 96: (1950) 51 Cri LJ 865: Lazarus A W Air 1953 All 72: (1953) Cri LJ 324(All).
33 Taking into consideration the aforesaid principles of law and applying the same to the present case, the Thekedaar, who was undertaking the wire changing work should be careful enough that electricity current is not going on in the wires, before initiating the work. However, in the present case we see that it was not so, due to which the deceased Lallan Kumar received the shock and then he fallen down in the trench. Testimonies of PW6 Dr. Veenta Jaiswal and PW11 Dr. Sreenivas M, have become important at this stage. PW6 Dr. Veenta Jaiswal has deposed that she had prepared the MLC No. 28787 Exh. PW6/A of patient Lallan and during examination it was observed that the patient had suffered electric burns on his back thighs, abdomen and arms. He was suffering from 60-65% burns. PW11 Dr. Sreenivas M has deposed that he had conducted the postmortem on the body of deceased Lallan Kumar. He has opined that the cause of death of Lallan Kumar as Septicemia consequent upon 60% burn injuries cause by electrocution. All the injuries were ante mortem in nature and were caused by passage of electric current. Therefore, it is clear that the death has occurred due to electrocution.
FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 17/19 34 The testimony of PW4 Sh. R.K. Singhal and PW1 Sh. Dinesh Tiwari is clear on the aspect that the incident would not have occurred if there could have been reasonable care regarding checking that no electricity current was flowing in the line. However, it was not done so by the Thekedaar and without even checking, he made the deceased Lallan Kumar to do the work of changing the cable/wire. PW4 Sh. R.K. Singhal has deposed emphatically on oath that it is correct that the contractor is responsible for checking the cable wires whether there was any current or not, before initiating the work and it was due to the negligence of the contractor that deceased had received the electric shock. In view of the same, the present Court is of the opinion that the accused Hemraj Sharma was negligent towards not taking the reasonable care before getting the work of changing cable wires, initiated. His act of sending the labour/decesed Lallan Kumar to do the work of changing the cable wires, without checking that electricity current was not flowing, was also a highly rash and negligent act on his part.
35 In the statement u/s 313 Cr.P.C, the accused has deposed that the DESU had called the deceased Lallan Kumar without obtaining any permission/intimation from him and that the deceased Lallan Kumar was not his employee and that he has been falsely implicated in the present case. However, accused has failed to substantiate the same on the record. Accused has also stated that all the PWs are interested witnesses and they have falsely implicated him in the present case. No motive has been brought on record as to why the PWs would falsely implicate the accused. Absolutely nothing has been brought on record to discredit the testimony of the PWs. Therefore, reliance can be placed upon their testimonies.
36 Hence, in view of the above said discussion , prosecution has proved its FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 18/19 case beyond reasonable doubt against the accused Hemraj Sharma making the accused liable for conviction u/s 304 A IPC. Consequently, accused is convicted for the offence punishable u/s 304 A IPC.
Announced in the open court Today on 22.11.2014.
(Ambika Singh) Metropolitan Magistrate-06 Central District : Tis Hazari Courts: Delhi FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 19/19 IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN MAGISTRATE-06 CENTRAL DISTRICT, TIS HAZARI COURTS DELHI FIR No.: 71/00 State V/s Hem Raj U/S: 304-A IPC PS: Partap Nagar 17.01.2015 ORDER ON SENTENCE Present : Ld. APP for the state Convict in person alongwith counsel The convict has been convicted for the offence punishable u/s 304-A IPC IPC vide judgment announced on 22.11.2014.
Ld. APP for the state seeks for imposition of maximum imprisonment. On the contrary the convict prays for a lenient view. It is submitted by the convict that he is about 50 years of age and is the sole bread earner of his family, consisting of his wife and two children. He belongs to a poor family.
I have given my thoughtful consideration to the pleas put forth on both sides. In view of the submissions and the nature of the offence, I am not inclined to release the convict on Probation of Good Conduct. Moreover, in view of the judgment of Hon'ble Supreme Court of India in Dalbir Singh Vs State of Haryana AIR 2000 Supreme Court 1677(1) the convict is not entitled to the relief of benevolent provisions of Probation of Offenders Act, 1958. In view of the facts and circumstances of the case, I am not inclined to grant the benefit of probation under the Probation of Offenders Act to the convict. However, in view of the FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 20/19 submissions and the facts of the case, the interest of justice would be met if, the convict Hemraj is sentenced to undergo rigorous imprisonment for a term of one year as punishment for offence u/s 304 A IPC with fine of Rs. 5000/-, in default SI for one month. Benefit of Sec. 428 Cr.P.C, if any be awarded to the convict.
A copy of the judgment dated 22.11.2014 and order on sentence be provided dasti to the convict, free of cost.
Announced in the open court Today on 17.01.2015 (AMBIKA SINGH) MM-06(C)/THC/Delhi FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 21/19 FIR No. 71/00 State V/s Hemraj Sharma U/S: 304-A IPC.
PS: Partap Nagar
17.01.2015
Present: Ld. APP for the state
Convict in person with counsel
Arguments heard.
Vide my separate order of even date, the convict Hemraj is sentenced to undergo rigorous imprisonment for a term of one year as punishment for offence u/s 304 A IPC with fine of Rs. 5000/-, in default SI for one month. Benefit of Sec. 428 Cr.P.C, if any be awarded to the convict.
A copy of the judgment dated 22.11.2014 and order on sentence be provided dasti to the convict, free of cost.
An application for bail u/s 389 Cr.P.C has also been filed. Heard.
Convict is admitted to bail on his furnishing a P/B and S/B in the sum of Rs.10,000/- . Bail bonds furnished and accepted.
File be consigned to Record Room.
(AMBIKA SINGH) MM-06(C)/THC/Delhi 17.01.2015 FIR No. 71/2000 PS Pratap Nagar State Vs. Hemraj 22/19