Delhi District Court
State vs Amit Kumar Vasisth Ors on 22 February, 2024
IN THE COURT OF MS. KRATIKA CHATURVEDI
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Amit Kumar Vashisth & Anr.
FIR No : 673/2015
U/s : 285/304 A IPC
P.S. : Dwarka South
1. CNR No. of the Case : DLSW020027762016
2. Date of commission of offence : 31.08.2015
3. Date of institution of the case : 19.03.2016
4. Name of the complainant : Mr. Vicky @ Vivek
Kumar Solanki (since
deceased)
5. Name of accused, parentage &
Address : (1) Amit Kumar
Vasishth s/o Sh. VK
Sharma R/o Gali No.1,
Dev Nagar,
Bahadurgarh, District
Jhajjar, Haryana.
(2) RK Sharma s/o Sh.
MR Sharma R/o
H.No.17, Himgiri
Apartment, Vikas Puri,
Delhi.
6. Offence complained of : 285/304 A IPC
7. Plea of the accused : Pleaded not guilty
FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 1 of 29
8. Final order : Convicted
9. Date of final order : 22.02.2024
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr. Kuldeep and Mr. Rajesh Kuahisk, Ld. Counsel
for accused RK Sharma.
Mr. Abhuday Kumar, ld counsel for accused Amit.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX:
1. Briefly stated, the case of the prosecution is that on 31.08.2015 at about 11:05 p.m. at Ganga Petrol Pump, near Welcome Hotel, Sector-10, Dwarka, the accused persons, Amit Kumar Vashishth, being the manager and R.K. Sharma, being the owner of Ganga Petrol Pump negligently omitted to take the care of electric wire so as to guard against any probable danger and due to such negligent omission, the victim Vivek Solanki @ Vicky was electrocuted and fell down from the roof of Ganga petrol pump and sustained injuries and due to which he died. As such, it is alleged that the accused persons have committed the offence punishable under section 285/304-A of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 673/2015 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSONS:
2 After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed.FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 2 of 29
The Ld. Predecessor of this court took the cognizance against the accused persons and summons were issued to the accused persons. On their appearance, a copy of the chargesheet was supplied to the accused persons in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, notice under section 285/304A of IPC was framed against the accused persons on 24.10.2016. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sh. Ankit PW-2 Sh. Dinesh Saini PW-3 Sh. Tapesh Solanki PW-4 Dr. RC Mathuria PW-5 HC Janam Raj PW-6 Ct. Lodhi Ram PW-7 Ct. Rakesh PW-8 Sh. Krishan Pal Singh PW-9 SI Omkar Mal PW-10 Sh. Kishan Swaropp Solanki PW-11 HC Dal Chand DOCUMENTARY EVIDENCE Ex. PW3/A & Identification memo of dead body Ex. PW4/A Ex. PW5/A FIR No.673/15 Ex. PW5/B Endorsement on the rukka Ex. PW8/A Postmortem report Ex. PW9/A Application Ex. PW9/B Rukka Ex.PW9/C Statement of witness Ankit FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 3 of 29 Ex.PW9/D Site plan Ex.PW9/E Statement of Vicky Ex.PW9/F Panchnama of dead body Ex.PW9/G Application Ex. PW9/H Form 25.35 Ex.PW9/I Arrest memo of accused Amit Ex.PW9/J Disclosure statement of accused Amit Ex.P-1 (colly) Photographs of petrol pump ADMITTED DOCUMENTS Ex.A-1 MLC No.7700/15 alongwith X-ray report Ex.A-2 DD No.19PP Sector 10 Dwarka Ex.A-3 DD No.19PP Sector Dwarka dated 18.10.2015
4. PW-1 Sh. Ankit, has deposed that on 31.08.2015, Vicky telephoned him at about 6.00 pm and Vicky asked him that they were required to go to petrol pump. Thereafter, he alongwith Vicky went to Ganga Petrol Pump, Sector-10, where they met the owner of the said petrol pump and he explained the work of installing lightings/ladi to them, which was supposed to be done.
They told him that it was night time and they would do the said work on the next day but he insisted and said that it was urgent and needed to be done immediately. Thereafter, they had a chat with the Manager of the said pump on the issue of payment of the work. The payment was fixed at Rs. 2500/- for the aforesaid work. Thereafter, they went to the roof of said petrol pump for installing lights/ladi, where they noticed number of electric wires. Upon seeing this, they informed both the accused persons about the lying of the electric wires on the roof, to this, they stated that they had disconnected electricity/power supply to the aforesaid wires lying on the roof. On the said assurance, they started their work at the roof. During the work of installing ladis, his friend Vicky received an electric shock and due to the said FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 4 of 29 impact, he fell off the roof on the ground. Thereafter, he immediately climbed down by using stairs and picked up Vicky and he noticed that blood was oozing out from the head of Vicky. Upon seeing this, he asked the accused persons to shift his friend Vicky to hospital but they did not help him. Thereafter, he placed his friend Vicky on battery e-rickshaw and rushed him to the Ayushman Hospital but Ayushman Hospital did not allow the admission of his friend Vicky and refused to admit. Thereafter, he hired ambulance and took Vicky to DDU Hospital. Vicky died due to the negligence of both accused persons. In his cross- examination, he has stated that he knew Vicky for about 2-3 years prior to the incident. He worked as an electrician with Vicky for about one year. He alongwith Vicky reached the Ganga Petrol Pump for the work of Ladi at about 7.30pm. Vicky was having an electric shop in the name and style of 'Vicky Electrical Fittings' at Bharat Vihar, Rajapuri, New Delhi. He knew the brother of Dinesh Saini @ Ravi but he does not remember his name. The lights at the Ganga Petrol Pump were functioning when they reached there and started working. He told about the incident to the family members of Vicky and one of his friends Guru at about 9.00-9.30 pm when they were being taken from Ayushman Hospital to DDU Hospital. As Vicky and he were in the electric work, they were having all the essential equipment/tools with them. He knew Dinesh Saini @ Ravi since he started working with Vicky. Dinesh Saini @ Ravi had telephoned Vicky for the work of Ladi at the Ganga Petrol Pump. They worked for about one hour at the Ganga Petrol Pump prior to the incident. The police recorded his statement at DDU Hospital on 31.08.2015. He does not remember the time of FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 5 of 29 recording of his statement by the police.
5. PW-2 Sh. Dinesh Saini has deposed that he was working as a decorator in marriage parties. On 31.08.2015, Manager of Petrol Pump Ganga Petrol, Sh. Amit called him for decorating ladi. Thereafter, he told him that he was not working as decorator of ladi (electric ladi). Thereafter on his request, he sent his friend Vicky to the said petrol pump for the same. His friend Vicky went there and informed him that due to night time, he does not wish to work there but the owner of petrol pump namely Ravi Kant Sharma forced him to finish the ladi work. Thereafter, he went to roof and started the work of ladi. At that time, he talked to him through phone, then, he asked him to call him, when the said work is finished. After about half an hour, a boy who was working with Vicky informed him that Vicky had fallen down from the roof due to electrocution. He called Ravi Kant Sharma but he did not pick his phone. He also called Manager Amit, who told him that he had sent one boy to hospital for the help of Vicky but neither Amit nor anybody reached at the hospital from the petrol pump. In his cross-examination, he stated that he was working as a decorator for the last 7 years. He does not know the name of the person who accompanied Vicky to the Petrol Pump for the work of ladi but he knew him. He then stated that the name of said person was Ankit. He knew Ankit for about two years from the date of the incident. He for the first time met Ankit in the hospital on 01.09.2015 at DDU Hospital. Thereafter, he met Ankit at Hari Nagar at the time of giving evidence. Thereafter, he never met Ankit. He received a call from the Manager Amit for the work of ladi at about 1.30 to 2.00 pm. He FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 6 of 29 gave the phone number of Vicky to the Manager Amit and vice versa. The Manager Amit and Vicky talked to each other immediately at 2.00pm. Vicky reached the petrol pump at about 05.00 pm. He called Vicky at about 05.30pm. Vicky had reached the petrol pump at about 05.30pm. Vicky himself called him at about 7.00pm. Again said, Vicky had not called him but Ankit called him at about 7.00-7.30 pm from the mobile phone of Vicky and told him about the incident. After receiving the news about the incident, he did not go to the spot as he was at Chirag Delhi but his brother Abhimanyu was present there at the spot i.e. the petrol pump. Half decoration work of balloon at the petrol pump was done by his brother, Abhimanyu at his instance. Vicky was doing the electrical work since childhood. He was in regular touch with his brother, Ankit and Amit after the incident. He reached the DDU Hospital on the next day of the incident i.e., on 01.09.15 at about 11.00 am. Police did not take his statement on the day he visited the hospital. The police took his statement after a week of the incident. He does not remember the place, where his statement was taken by the police.
6. PW3 Sh. Tapesh Solanki has deposed that on 19.10.2015, he went to Mortuary DDU Hospital, where he identified the dead body of his younger brother, Sh. Vivek Kumar Solanki @ Vicky, who expired due to electrocution at petrol pump. Despite opportunity given, no cross-examination was conducted by the accused persons.
7. PW-4 Dr. RC Mathuria, has deposed that on 19.10.2015, he went to Mortuary DDU Hospital, where he identified the dead body of his nephew, Sh. Vivek Kumar Solanki FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 7 of 29 @ Vicky, who expired due to electrocution at petrol pump. After postmortem, dead body was handed over to them. Despite opportunity given, no cross-examination was conducted by the accused persons.
8. PW-5 HC Janam Raj, has deposed that on 01.09.2015, he was posted at P.S Dwarka South as a DO from 12.00 am to 08.00 am. At about 01.15 am, Ct. Lodhi Ram brought one rukka for registration of FIR which was sent by ASI Omkar Mal. Thereafter he registered present FIR. Thereafter, he made his endorsement on the original rukka and handed over the copy of FIR and original complaint to Ct. Lodhi Ram to be handed over to ASI Omkar Mal for investigation. In his cross-examination, he stated that at about 1.15 to 1.20 am, he handed over the original rukka and copy of FIR to Ct. Lodhi Ram.
9. PW-6 Ct. Lodhi Ram, has deposed that on 31.08.2015, he was posted at PP Sector 10, PS Dwarka South. On that day, he alongwith ASI Omkar Mal were on emergency duty. On that day, ASI Omkar Mal received DD no. 19. Thereafter, he alongwith IO went to DDU Hospital, where IO gave an application for recording statement of injured to doctor but doctor declared the injured unfit for statement. Then they returned back to spot, where, IO prepared rukka upon the said DD and handed over to him and sent him to PS for registration of FIR. After registration of FIR, he returned back to spot alongwith copy of FIR and original rukka, which he handed over to IO where he recorded his statement. In his cross-examination, he stated that on that day, they were on night emergency duty. At about 11.05 pm, he FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 8 of 29 received DD no. 19. They reached at hospital within 25 minutes and remained there for 30-45 minutes.
10. PW-7 Ct. Rakesh has deposed that on 19.10.2015, he was posted as Constable at PS Dwarka South. He alongwith ASI Onkar Mal went to the mortuary of DDU Hospital and postmortem of dead body was done at mortuary. After postmortem, identification statement of Tapesh Solanki and RC Mathuria were recorded by the IO. The dead body was handed over to Tapesh Solanki and then he went back to the PS. In his cross-examination, he stated that he does not remember the exact time when he reached the mortuary alongwith IO. They remained there for about one and half hour. His statement was also recorded by the IO at the DDU Hospital. He does not remember whether he had signed on the statement u/s 161 Cr.PC or not.
11. PW-8 Sh. Krishan Pal Singh, has deposed that he has been deputed by HOD of the DDU Hospital, Dr. Komal Singh on being summoned by the Hon'ble Court for the purpose of identification of signatures of Dr. Parth Joshi, Jr. DDU Hospital with original postmortem report no.1421/15 as she has left the services of the hospital and her whereabouts were not available. In his cross-examination, he stated that he could neither tell the period of working nor the date when she left the services of Dr. Parth Joshi of DDU. He had never worked with her at any point of time during his services with the hospital but he was working as a record clerk during the said period and he has seen his signatures and writing during the course of his duty.
FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 9 of 2912. PW-9 SI Omkar Mal, has deposed that on 31.08.2015, he was posted as ASI at PP Sector 10, Dwarka court, PS Dwarka South. On that day, he received a DD No.19PP regarding admission of Vicky at DDU Hospital because of fall of ceiling at Indian Petrol Pump, Sector 10 Dwarka, New Delhi. Thereafter, he left for DDU Hospital and he reached there at about 11.30 PM. There he found Vicky admitted. He received the MLC. He sought the opinion for recording the statement of Vicky from doctor and the doctor opined that victim was not fit for statement. He searched for the eye witness in the hospital but could not find anyone. Thereafter, he returned to the spot i.e. Indian petrol pump, Sector 10 Dwarka at about 12.30 AM. At that time, the petrol pump was got closed and no eye witness was found there. He clicked the photographs at the spot and thereafter, he returned to the PP, Sector 10 Dwarka. On the basis of MLC and DD entry, he prepared rukka and handed over the same to Ct Lodhi Ram for registration of FIR at PS Dwarka South Sector 9 and Ct. Lodhi Ram went to the PS and after getting the FIR registered and came back to the PP Sector 10 and handed over to him the copy of FIR and original rukka. On 01.09.2015, he recorded the statement of one witness namely Sh. Ankit. He prepared the site plan. On 02.10.2015, he recorded the statement of Vicky @ Vivek. On 18.10.2015, he received an information through DD No. 19PP regarding death of Vicky @ Vivek at his house. Thereafter, he alongwith Ct Rakesh reached at the house of the Vicky @ Vivek i.e. V-12/A, Bhagwati Vihar, Sector D, near Gulam Masjid, Uttam Nagar, Delhi where he prepared the panchnama of the dead body. Thereafter, he got the dead body preserved at the DDU Hospital Mortuary for postmortem. He filled the form FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 10 of 29 25.35 and got the postmortem done at the hospital. The body of deceased got identified by Sh. Tapesh Solanki and Sh. R C Mathuriya. The dead body of the deceased was handed over to Sh. Tapesh Solanki and Sh. RC Mathuriya. On 21.11.2015, the accused Amit Vashisth came at the PP Sector 10 and he formally arrested the accused. He recorded the disclosure statement of accused Amit. He also made inquiry regarding the other accused namely Sh. R K Sharma. He recorded the statement of witnesses during investigation. In his cross-examination, he stated that the deceased was engaged by Amit through one Ravi for the purpose of decoration of the petrol pump. He had not verified that the deceased was the proprietor of Vicky Electrical Fittings. He does not know whether the deceased had any other shop or not. After receiving DD entry, he found the workers of the petrol pump on reaching the spot. After registration of the FIR, the rukka and the FIR was handed over to him by Ct. Lodhi Ram at the Petrol pump at around 2.00 a.m. He did not seize the CCTV footage of the date of incident from the spot and the same did not capture the incident. The deceased was taken to the hospital by the accused Amit and one another person who was accompanying the deceased for the decoration job at the petrol pump. He could not tell the name of the said person who was accompanying the deceased for the purpose of decoration job of the petrol pump. The deceased came to the petrol pump for the decoration purpose when called by one Ravi. The name of the deceased was Vicky @ Vivek Kumar Solanki.
13. PW-10 Sh. Kishan Swaroop Solanki, has deposed that on 18.10.2015, his son Vickey @ Vivek died at his above-mentioned FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 11 of 29 house. Panchnama of the dead body of his son was prepared in his presence. Despite opportunity give, cross-examination was not conducted by the accused persons.
14. PW-11 HC Dal Chand, has deposed that on 21.11.2015, he was posted as Ct at PS Dwarka South. On that day, he joined the investigation in the present matter. On that day, he alongwith IO ASI Omkarmal reached at Ganga Petrol Pump, Sector 10 Dwarka and where they met the manager namely Amit Kumar Vashisth. IO interrogated the accused. IO recorded the disclosure statement of accused. IO also arrested the accused Amit Kumar Vashisth. In his cross-examination, he stated that on that day his duty hours were from 08.00 AM to 8.00 PM. Only IO and he had gone to the Ganga Petrol Pump at Sector 10 Dwarka on bike whose registration number was DL-16557. He does not remember the time when he visited the petrol pump. It was a noon time, however, he could not tell the exact time. Interrogation of the accused was done at the petrol pump as well as PP Sector 10 Dwarka. He does not remember what questions were asked by the IO to the accused Amit Kumar. At the petrol pump no documents were prepared by the IO in his presence. Arrest memo and disclosure memo were prepared at PP Sector 10, however, he does not remember the time of arrest.
STATEMENT OF THE ACCUSED PERSON AND DEFENCE EVIDENCE:
15. Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 12 of 29 of the accused persons was recorded on 27.02.2023 without oath under section 281 r/w Section 313 CrPC, wherein they have stated that they are innocent and has falsely been implicated in the present case. They further stated that they wanted to lead defence evidence.
16. DW-1 Mr. RK Sharma has deposed that he was the owner of the Ganga Petrol Pump near Welcome Hotel, Sector 10, Dwarka. Mr Amit Kumar was working at their petrol pump in the year 2015 as Manager and he was looking after all the affairs of the petrol pump. He seldom used to visit petrol pump as he was involved in other works also. On 31.08.2015, he received a phone call from the Manager Mr. Amit Kumar (accused) and told him that some decoration had to be done as it was annual day of the Indian Oil Corporation on 01.09.2015. They used to celebrate the annual day of Indian Oil Corporation every year on first September. He told Amit Kumar that the said decoration should be done by Ravi Balloon wala who was doing the decoration in their petrol pump since then and he also instructed Amit Kumar to get this work done in the noon time only. He was told by Amit Kumar on the phone on the night of 31.08.2015 that one person (Vicky) who was sent at his petrol pump by Ravi balloon wala and he climbed up on the ladder and slipped. He fell down on the ground and sustained injuries and he was immediately taken to the hospital by the employees of petrol pump. He helped in his treatment. They managed blood for him and also helped him financially so that he could be recovered from injuries. Thereafter, he was shifted to some private hospital and after some time he was discharged from the hospital and returned to his house. After two-three months, he came to know that the said FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 13 of 29 person namely Vicky @ Vivek expired. In his cross- examination by the Ld. APP, he stated that Amit Kumar left the petrol pump three years ago. He had not made any written agreement with the then Manager Amit Kumar in which terms and conditions his work were laid down. He does not have the guidelines of the IOC and Explosive Department wherein the condition of no loose wiring at the petrol pump is mentioned. He stated that the said guidelines /conditions are available on the IOC website. He opened the petrol pump in the year 2005. He does not remember whether any terms/condition sheets were provided to him at the time of opening of the petrol pump regarding the electric wiring at the petrol pump. The incident took place at night. Amit Kumar who was the then Manager could not disobey his directions. The company had constructed the petrol pump and electric wiring was also done by them. He might be having the copy of project work.
17. DW-2 Mr. Rahul Ranjan, has deposed that he has been working as accountant at Ganga Petrol Pump near Welcome Hotel, Sector 10, Dwarka since April, 2014. The contract of decoration on eve of annual day of Indian Oil corporation on 01.09.2015 was given to one person namely Ravi balloon wala. The whole work was being supervised by Amit Kumar who was the then Manager of the petrol pump. They told Ravi not to perform any decoration at night. In his cross-examination, he stated that no I-card was issued by the owner of the Ganga petrol pump to him regarding his work profile at the said petrol pump. There is no written agreement of employment between the owner and him. However, he stated that he had the proof of his employment as salary and member service history of provident FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 14 of 29 fund organization was credited in his account by the Ganga petrol pump. Statement of bank account in which the salary was credited was produced by the witness along with certificate u/s 65B of IEA and provident fund account. His duty hours were from 10.00 AM to 6.00 PM at the petrol pump. Amit Kumar gave the contract to Ravi on 01.09.2015. He does not have any personal knowledge regarding the amount at which the contract was finalized. Ravi came at their petrol pump alone in the morning only. He sent some labours for the decoration purpose. The labours reached at the spot at about 6 PM -7.00 PM. The whole work at the petrol pump was being supervised by Amit Kumar. The owner of petrol pump is Ravi Kant Sharma. All the employees including Amit Kumar and him worked under the directions of the owner. The final call regarding every event at the petrol pump is taken by the owner of the petrol pump. No work at the petrol pump can take place without permission of the owner.
18. DW-3 Mr. Sayed Inamulhaq, has deposed that he has a shop of repairing of tyre puncture near the exit of Ganga Petrol Pump near Welcome Hotel, Sector 10, Dwarka since the year 2005. He had seen one labour who slipped off the ladder when he was climbing it up. Thereafter, he called Manager. In his cross- examination, he stated that he opened his shop at 8.00 am and close it around 10.00 PM daily. At the time of incident, he was filling the air in the tyre of the vehicles. The distance between the place where he was filling the air and the ladder was about 6-7 meters. The incident took place at night. He was filling the air in the front tyre of motorcycle and he does not remember the registration number of the said bike.
FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 15 of 2919. DW-4 Mr. Amit Kumar, has deposed that he was Manager of Ganga Petrol Pump, Sector 10, Dwarka from 2006 till 2020. They celebrate Indian Oil Corporation Day on 01st September of every year. On 31.08.2015, he received a call from the owner that decoration work is to be carried out at a petrol pump who told him that one Ravi Kumar who used to do decoration work every year for the IOC day, would come. He had talked with Ravi that decoration work is to be performed at the petrol pump. Ravi Kumar told him that he would send someone for the decoration work as he was busy at some other place. Thereafter, in the evening, Ravi Kumar sent one Vicky Kumar for the decoration work but he told that person to come for the decoration work next day as it was already late evening. But Vicky after having talk with Ravi told him that decoration work would be finished within an hour as it is their routine work and no problem would arise. Thereafter, despite being requested to carry out the work the next day, Vicky started the decoration work. He went to perform his other duties. After few minutes, the employees of petrol pump told him that Vicky had fallen from the ladder while climbing. He rushed to the spot and informed the owner about the same. Thereafter, they took Vicky to the Ayushman Hospital but hospital told them to take him to some government hospital. Thereafter, they took Vicky to the DDU Hospital. They provided blood and some financial assistance to Vicky. Vicky was operated successfully and later on he was discharged after 2-3 days. After 2-3 months, Ravi (the contractor who had sent Vicky for decoration work) came to the petrol pump and informed them that Vicky has expired. As per the manual of the Indian Oil Corporation governed by Government FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 16 of 29 of India, safety measures are put in place by the IOC itself. The employees of IOC used to visit every IOC petrol pump including the Ganga Petrol Pump, Sector 10 Dwarka whereby they used to perform and check every safety measures. They used to check whether any electricity wire is naked or not because as per the guidelines of IOC mentioned in para 6.3 page no.15 of manual, all electricity wires/cables shall be neatly dressed, clamped and tagged and they shall be sealed to prevent entry of water. In his cross-examination, he stated that he does not have any employment agreement with Ganga Petrol Pump, Sector 10 Dwarka. He does not have any ID card which shows that he was working as Manager at the Ganga Petrol Pump in the year 2015. He stated that PF amount used to be deducted by the owner. Ravi came at their petrol pump in the evening. He again said that Ravi did not personally come at the petrol pump instead he sent one person namely Vicky at their petrol pump for decoration work. Indian Oil Corporation has not given anything in writing to celebrate Indian Oil Corporation Day on the first day of September of every Calendar year. IOC had instructed them on phone to celebrate the same and to make the decoration at the petrol pump to celebrate it. The expense regarding the same is borne by the owner of the petrol pump. He does not know when the Ganga petrol pump became functional. No electric fitting was ever done at the petrol pump in his supervision or his presence. The incident happened when Vicky was climbing up the ladder at the petrol pump for decoration work. He told Vicky not to carry out any decoration work at petrol pump on the night of 31.08.2015. Vicky was climbing up on the ladder without his permission. He was not present near the ladder when the incident FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 17 of 29 took place. The ladder was lying at the petrol pump and Vicky lifted the ladder and put the same on the wall of the petrol pump to climb up on the roof of the petrol pump. Nobody can perform any work at the petrol pump if he asked any person not to perform the said work. He stated that he asked Vicky not to perform any decoration work and thereafter he left the place for some other work at the petrol pump and ladder was lifted by Vicky without his permission and in his absence. One person namely Ankit also accompanied Vicky for decoration work.
ARGUMENTS:
20. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
21. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
22. Per contra, the Ld. Counsel for the accused persons had argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 18 of 29 such, it is prayed that the accused persons be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
23. The accused persons have been charged for the offences of negligent conduct with respect to the naked electric wires lying at the roof of the petrol pump under section 285 IPC and causing death by a rash or negligent act under section 304A IPC in the present case. Whereas under Section 285 IPC, the factum of negligent conduct of the accused person is in itself the offence, while under Section 304A IPC, death of the victim due to such negligent act. In order to bring home the guilt of the accused persons, the prosecution has to prove that the accused persons, Amit Kumar, being the manager of the petrol pump and R.K. Sharma, being the owner of the petrol pump were negligent by omitting to take precautions with respect to the electric wires lying at the roof of the petrol pump which they were under the obligation to guard against any probable danger to human life from such matter.
24. In order to prove the guilt of the accused persons the prosecution is required to prove the following ingredients as mentioned U/s 285/304A IPC as under:
(i) The deceased was installing the lights at the petrol pump belonging to the owner and managed by the manager;
(i) The accused persons omitted to take such order with the wires as was sufficient to guard against probable danger to human life from them which were lying on the roof of the petrol pump;
(ii) The omission complained of was due to negligence FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 19 of 29 or with the knowledge of such probable danger; and
(iii) Death of a person was caused on account of aforesaid culpable omission /negligence of the accused persons.
25. Thus, the gravamen of the offences under Section 285/304A IPC is the act of the accused, done with "negligence" or "rashness". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-
"7. .... 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 the amount of care and circumspection is 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. 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 FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 20 of 29 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."
26. Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an 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 person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
27. Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 21 of 29 by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE:
28. In order to prove the case of the prosecution, the state is required to prove the four ingredients of the offence as laid down under section 285/304A of the IPC as discussed aforesaid. Firstly, the prosecution is required to prove that the accused was installing the lights/ladi at the Ganga petrol pump which was being managed by the accused Amit Kumar and owned by the accused R.K. Sharma. In the instant case, it is not in dispute that the accused Amit Kumar was the manager of the petrol pump while the accused, R.K. Sharma was the owner of the petrol pump. It is the case of the prosecution that being the manager and the owner of the petrol pump, the accused persons had a duty to care for the safety of the deceased who had come at the petrol pump to install lights at the spot, the duty which was grossly neglected. It is worthy to note that the Hon'ble Supreme Court in the case of Sushil Ansal vs State through CBI 2014 (6) SCC 173 has relied upon the common law decision regarding occupier's liability to visitors in the case of Mclenan v. Segar (1917) 2 KB 325, wherein it has been observed as under, "Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them."
FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 22 of 2929. In the instant case, it was the duty of the accused persons who were at the spot to ensure that the petrol pump was safe enough for the deceased victim to install lights at the spot. From the testimony of PW-1, Ankit who was the eye-witness to the incident had deposed that he along with the deceased victim had met the accused R.K. Sharma at the spot who explained the work of installing the lights and had also insisted upon completing the work immediately. He had further deposed that he had also met the accused Amit Kumar regarding the issue relating to the payment of work. His testimony is also corroborated by PW-2, Dinesh Saini who has deposed that he got a call from the accused Amit Kumar for installing lights and that at the request of the accused Amit, he sent his friend, Vicky (deceased) to the petrol pump. Moreover, DW-1, R.K. Sharma cannot absolve himself from the liability that he was not looking into the affairs of the petrol pump and the same was looked after by the accused, DW- 4, Amit Kumar. Even from both the testimonies of the defence witnesses, it is clear that the both the accused persons had knowledge that the deceased had come at the petrol pump for installing lights. Therefore, it is an established fact that the deceased was at the spot and was installing lights/ladi at the petrol pump on the date of the incident. Thus, first ingredient stands proved.
30. Now secondly, the prosecution is required to prove that the accused persons omitted to take such care with the electric wires which were lying on the roof as was sufficient to guard against probable danger to human life and thirdly that the omission complained of was due to negligence or with the knowledge of such probable danger. It is worthy to note that PW-1 in his FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 23 of 29 testimony has deposed that that the incident had happened due to the negligence of the accused persons as they had told him and the deceased that the electric/power supply of the electric wires which were lying on the roof have been cut off from which the deceased had received electric shock. He also deposed that no iron grill was installed at the edge of the roof for protection. Now, the degree and the nature of care expected of the accused persons be such as would ensure the safety of the worker against all foreseeable dangers and harm. In the instant case, it was the duty of the accused persons to ensure that electric wires should not have been laid upon the roof and that too with the electric supply and it was also the duty of the accused persons to ensure enough safety measures when they asked the deceased to install lights at the roof as it is clear from the testimony of PW-1 that no iron grill was also installed at the edge of the roof. The contentions of the ld counsel for the accused persons that as per the IOC manual, no open wires can be found at the petrol pump is not tenable in view of the fact that the accused persons had failed to lead any evidence to show as to when people from IOC had come to inspect the petrol pump.
31. Having proved the responsibility of the accused persons and the accident taking place due to their negligent conduct, the prosecution is required to prove that the act of the accused persons was causa causan. To hold the accused persons guilty, it must be proved on the record that the act of the accused persons was the proximate cause of the death of the deceased and not the remote cause. The cause of the death has been duly established by the prosecution through postmortem report vide Ex.PW8/A and MLC of the deceased vide Ex. A-1 (colly). Perusal of the FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 24 of 29 post mortem report reveals that the cause of the death is due to cervical injury subsequent to fall from the height and as per the MLC report, the deceased had fallen from the height after electrocution which is of the date of the incident. Therefore, in the considered opinion of the court, the prosecution has sufficiently proved on the record that the proximate cause of the death of deceased was due to the injuries received by him in the incident which were caused due to the negligent conduct of the accused persons. Thus, for an offence under Section 304-A to be proved, it is not only necessary to establish that the accused persons were either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim. As to what is meant by causa causans, one may gainfully refer to Black's Law Dictionary (Fifth Edition) which defines that expression as under: "The immediate cause; the last link in the chain of causation." The same view has been reiterated in numerous judgments including Suleman Rahiman Mulani v. State of Maharashtra AIR 1968 SC 829 where it has been observed that the act of the accused must be proved to be the causa causans and not simply a causa sine qua non for the death of the victim in a case under Section 304-A of the IPC.
32. Moreover, PW-5, HC Janam Raj has deposed that he had registered the FIR in question. To that extent, he stuck to his version. In his examination, he gave details of his duty hours and had also deposed that the FIR was registered on the rukka brought by PW-6, Ct. Lodhi Ram. So, there was nothing improbable, in his testimony and thus, the same is trustworthy and reliable. PW-6 has deposed that he alongwith PW-9, ASI Omkar Mal reached DDU Hospital after receiving DD No.19 FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 25 of 29 where the doctor declared the patient unfit for statement. He deposed that he alongwith IO went to the spot and prepared the rukka and then accordingly, the FIR was registered. PW-9, SI Omkar Mal has also deposed similarly to PW-6. He further deposed that he had clicked the photographs of the spot and prepared the site plan. PW-9 has also deposed that he had recorded the statement of the deceased on 02.10.2015 vide Ex.PW-9/E which shows that the statement of the deceased is similar to the deposition made by PW-1. Even otherwise there is nothing on record to make the testimony of the IO unbelievable and unreliable. Thus, his testimony stands proved. There was no improbable fact, which accused could cull out from their testimony. Therefore, their testimony is found to be trustworthy and reliable.
33. The Ld. Counsel for the accused has stated that there are material contradictions in the testimonies of the prosecution witnesses and that the benefit of doubt be given to the accused persons. However, the same in the opinion of this court are barely material if viewed in the backdrop of the otherwise strong and coherent case of the prosecution. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 26 of 29 not corrode the credibility of a party's case, material discrepancies do so."
34. The Ld. Counsel for the accused persons have submitted that the police officials have not conducted the investigation in a fair and proper manner. It is contended that the deceased was not the employee of the accused persons and that one Ravi had called the deceased to install lights. It is also argued that no case property has been seized in the instant matter and that as per the IOC guidelines, no open wiring can be there at the petrol pump and that there was regular inspection by the IOC, so it cannot be the case of the prosecution that the accused persons had left the open wires at their petrol pump. However, these defects cannot be a ground to give the benefit of doubt to the accused when the prosecution has proved its case otherwise. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 27 of 29 omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
35. Thus, it cannot be said that the accused persons had not left the wiring at the roof of the petrol pump even though there was regular inspection as per the manual of IOC guidelines as the accused persons had not placed any record showing the inspection reports and at what date the inspection was actually conducted at the spot. Further, the defence of the accused persons that the deceased was not working at the petrol pump is also not tenable as PW-1 in his testimony and the deceased himself in his statement recorded under section 161 CrPC vide Ex. PW-9/E have stated that they started the work at the roof after assurance was received from the accused persons regarding the disconnection of power supply to the electric wires lying at the roof. Further, the testimony of DW-3 Mr. Syed Inamulhaq cannot be relied in entirety as he has himself deposed that he was feeling the air in the tyre of the vehicle and he was not present at the spot from where the deceased had fallen. In nutshell, the accused persons failed to show the degree of the care which was expected of them which they failed due to their negligent conduct and as a result, the victim had succumbed to the injuries which he received after falling from the height due to electrocution.
36. Consequently, the prosecution has proved its case against the accused persons namely, Amit Kumar and R.K. Sharma beyond reasonable doubt that they knowingly or negligently omitted to take such care or precautions with respect to the wires with power supply which were lying at the roof of the petrol pump and had also failed to take measures with respect to the FIR No. 673/2015, PS Dwarka South State vs. Amit Kumar & Anr. Page 28 of 29 iron grill or any other object which should have been installed at the edge of the roof for protection of the victim. Thus, it is proved that the causa causans in the case at hand was the wires with the power supply due to which the victim had fallen from the roof of the petrol pump.
CONCLUSION:
37. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused beyond reasonable doubt. The testimony of the witnesses is coherent and directly implicates the accused persons. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
38. Resultantly, the accused, Sh. Amit Kumar and Sh. R.K. Sharma are hereby found guilty for offences under section 285/304-A of the Indian Penal Code, 1860 and are convicted accordingly. Let the convicts be heard separately on sentencing.
Announced in the open court on 22.02.2024 in the presence of the accused persons.
(Kratika Chaturvedi) Metropolitan Magistrate-04, Dwarka, Delhi/22.02.2024 Note:- This judgment contains 29 pages and each page has been signed by me.
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