Ram Karan vs State (Delhi Admn)
2009 Latest Caselaw 4987 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRIMINAL REVISION PETITION No.496/2001

                                    Reserved on            : 02.12.2009

%                                   Date of decision : 04.12.2009


            Ram Karan                                  .......   Petitioner.

                        Through Mr.Rajesh Mahajan, Advocate.

                        Versus

            State (Delhi Admn)                    ......    Respondent.

                        Through Mr.Manoj Ohri, Advocate.

            CORAM

            HON'BLE MS.JUSTICE INDERMEET KAUR

             1. Whether Reporters of Local papers may
                be allowed to see the Judgment?

             2. To be referred to the Reporter or not?                    Yes

             3. Whether the judgment should be                            Yes
                reported in the Digest?

Indermeet Kaur, J.

1. On 20.10.1989, at about 9.00AM at house no.10/117

Patel Street, Vishwas Nagar, Shadhara a construction was being

raised under the contractor ship of the petitioner Ram Karan. The

owner of this property was one Gopal Kishan PW-6.

Criminal Revision Petition No.496/2001 Page 1 of Page 10

2. Malba and iron rods were thrown at the construction

site pursuant to which Rama Kant, a labourer sustained injuries

and he scummed to his death.

3. Ram Karan, the petitioner was charge sheeted under

Section 304A of the IPC; before the Trial Court nine witnesses

have been examined; of whom the star witness of the prosecution

was Santosh Kumar PW-9, an eye-witness. He had deposed that

he was working as a Mason in the adjoining factory at Patel Gali,

Vishwas Nagar being factory no.10/34; the factory was 2-3

houses away from the house under construction; demolition work

was going on; the petitioner i.e. Ram Karan was asked not to

carry out demolition because some mishappening may take place.

He has further deposed that although the petitioner had been

asked to stop the work, he replied that it was his work and he

knew how to do it. Malba fell upon Rama Kant, pursuant thereto

he slipped into a nali and sustained injuries. He was removed to

the hospital where he was declared brought dead. The FIR had

been recorded on the statement of PW-9; the said statement is

Ex.PW-10/A.

4. In his cross-examination PW-9 has admitted that Rama

Kant was also at fault because he was standing below the house

Criminal Revision Petition No.496/2001 Page 2 of Page 10 despite being asked by Gopal (PW-6) to move aside. It has been

reiterated that the incident had taken place because of the

negligence of the petitioner Ram Karan.

5. The owner of the house has been examined as PW-6,

namely, Gopal Kishan. As per his version he was not present at

the spot when the incident had occurred. He had removed the

injured to Dayanand Hospital. The police had brought the

contractor to the Police Station in the afternoon; the police had

asked the name of the contractor, whose name had been

disclosed by PW-6 as Ram Karan; thereafter PW-6 was allowed to

go.

6. The post-mortem on the deceased was conducted by

Dr.L.K. Barua, PW-7. Vide his report PW-7/A the injuries were

opined as anti-mortem and death was caused due to blunt force

impact ie. rubbing against road surface; shock and coma had led

to the death of the victim resulting from the facture of the cervical

vertebrae and the cerebrum. The other witnesses are by and

large formal.

7. In his statement under Section 313 of the Cr.P.C., the

accused had pleaded innocence; in defence he had produced one

witness; DW-1 has stated that the petitioner was not present at

Criminal Revision Petition No.496/2001 Page 3 of Page 10 the spot at the time when the incident had occurred; the work

was not being done under his supervision.

8. The Trial Court on the basis of the evidence adduced

before it had disbelieved the version of defence; the case as set

up by the prosecution had been accepted; the petitioner had been

convicted under Section 304A of the IPC. Vide order of sentence

dated 12.3.2001, he had been sentenced to undergo RI of 9

months and to pay a fine of Rs.1000/-; in default of payment of

fine to undergo RI for one month.

9. In appeal before the Additional Sessions Judge, while

maintaining the conviction the sentence was modified and the

petitioner was directed to be released on probation for a period of

two years on his furnishing a personal bond in the sum of

Rs.10,000/- with one surety of the like amount. He had been

directed to pay Rs.50,000/- as compensation to the heirs of the

deceased as also costs of Rs.1000/-.

10. This was vide judgment dated 28.7.2001; which has

now become the subject matter of this present revision petition.

11. Before this Court the judgment of two fact finding

Courts below has been assailed on three points :-

(i) the prosecution has failed to prove that the

Criminal Revision Petition No.496/2001 Page 4 of Page 10 petitioner was the contractor who was supervising the

construction of the building owned by PW-6. No documentary

evidence had been proved to this effect and besides the version of

PW-6 and PW-9, there is no other evidence with the prosecution

to establish this averment;

(ii) the Investigating Officer has not been examined;

this has caused prejudice to the accused as crucial documents i.e.

the site plan and rukka have remained unexhibited;

(iii) contributory negligence qua the deceased cannot be

ruled out. Attention has been drawn to the testimony of PW-9

wherein in his cross-examination he has admitted that :-

"Rama Kant was also at fault because he was standing below the house despite being asked by Gopal to move aside".

12. This Court is sitting in revision. Powers of a Revisional

Court are limited. There are two concurrent findings of fact by

two Courts below. What this Court has to appreciate or go into is

only on the legality, correctness or the proprietary of the finding,

order or sentence which is under challenge.

13. On this touch stone, the arguments addressed by the

learned defence counsel have to be tested.

14. PW-9 is an eye-witness. He is an independent entity; no

Criminal Revision Petition No.496/2001 Page 5 of Page 10 ulterior purpose or motive has been attributed to him as to why

he would falsely implicate the petitioner for any reason

whatsoever. He has categorically deposed that the house under

construction was in the process of being demolished; the

petitioner i.e. Ram Karan had been asked not to carry out the

demolition because some mishap could take place but he did not

accede to their request; incident had occurred at 9.00AM; the

petitioner inspite of this warning had replied that it was his work

and he knew how to carry out it.

15. Incident had occurred at 9.00AM in the morning hours

in a busy area i.e. in the Patel Gali of Vishwas Nagar. Petitioner

did not exercise the due care and precaution expected of a

prudent man in carrying out this work; even lay persons like PW-9

had noted that there was a danger and a hazard attached to this

demolition work; warning to the said effect had been given to the

petitioner but to no avail.

16. PW-6 was the owner of the house on which the

demolition work was being carried. He had disclosed the name of

the contractor i.e. of Ram Karan, the present petitioner. Ram

Karan had thereafter been apprehended and brought to the police

station and only then PW-6 was allowed to leave. PW-6 has also

Criminal Revision Petition No.496/2001 Page 6 of Page 10 on oath deposed that while the construction work of his house

was going on he had asked his contractor i.e. Ram Karan to stop

the work because public was coming and going but Ram Karan

inspite of this replied that his labour was doing the work properly

and PW-6 should not worry. PW-6 has attributed the incident to

the fault of the contractor i.e. the petitioner.

17. In his statement under Section 313 of the Cr.P.C., the

petitioner has nowhere made any denial that he was not the

contractor carrying out the work at site; his version is a simple

and bald denial.

18. In defence DW-1 has deposed that Ram Karan was not

present at the spot at the time of the incident. This fact is not in

dispute. The witness of the prosecution have also not testified to

this effect; yet the petitioner cannot wriggle out from his

responsibility. It was under his supervision that this work of the

demolition of the house of PW-6 was being carried out. Inspite of

repeated warnings and caution notes having been given by PW-6

and PW-9, the petitioner did not pay any heed and continued the

work without care and the caution which ought to have been

exercised by a reasonable and a prudent person. This is

especially so keeping in view the fact that the incident had

Criminal Revision Petition No.496/2001 Page 7 of Page 10 occurred in the morning hours i.e. at 9.00AM in a busy area; the

demolition involved the breaking of the house structure which

included concrete malba and iron girders falling down; in these

circumstances the possibility that any person could have been

struck or hit pursuant thereto could not have been excluded. The

rash and negligent act of the petitioner appears to be writ large.

19. The non-examination of the Investigation Officer has

not prejudiced the accused; rukka and the site plan not having

been proved would not create a dent in the version and testimony

of the eye-witness PW-9 who has given a clean, cogent and a

categorical version; his version is corroborated by the testimony

of PW-6.

20. In 83 (2000) DLT 476 Ambika Prasad and Anr. Etc. vs.

State (Delhi Administration, Delhi) the Supreme Court in a case

under Section 304A of the IPC had held that the non-examination

of the Investigating Officer would not have any bearing on the

appreciation of the evidence of the eye-witness; it being

unfortunate that Investigating Officer has not stepped into the

witness box without any justifiable ground but the conduct of the

Investigating Officer could not be a ground for discarding the

evidence of the eye-witness whose presence on the spot is

Criminal Revision Petition No.496/2001 Page 8 of Page 10 established beyond reasonable doubt.

21. The contributory negligence by the deceased as has

been argued by the defence counsel, in view of the version of

PW-9 is also not made out. The rule of contributory negligence

may be a good defence in a civil action but it has little place in an

indictment for criminal negligence. Once it is established that the

accused has caused the death of the person by his negligent act

not amounting to culpable homicide, contributory negligence on

the part of the deceased is irrelevant. The act of the petitioner

was an act showing an utter disregard for the life and safety of

others; it goes beyond a mere matter of compensation.

22. Conviction of the petitioner calls for no interference.

The sentence which has been imposed upon the petitioner is also

on the lesser side, he has been given the benefit of probation.

The compensation of Rs.50,000/- which had been directed be paid

by him was vide order dated 28.7.2001, i.e. more than 8 years

from today. The said compensation has to be paid to the heirs of

the deceased for the loss of a precious life of a close member of

their family by the rash and negligent act of the petitioner. The

said sentence calls for no interference.

Criminal Revision Petition No.496/2001 Page 9 of Page 10

23. Revision petition is without any merit. It is dismissed.

December 04, 2009                             (Indermeet Kaur)
`ns'                                               JUDGE




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