Madhya Pradesh High Court

Surendra Singh vs The State Of Madhya Pradesh on 6 April, 2021

Author: Vivek Rusia

                                   - : 1 :-
                                                CRR Nos. 1369/2016 & 1372/2016



     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
       (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                        CRR No. 1369 of 2016
                   (Surendra Singh. V/s. State of M.P.)

                        CRR No. 1372 of 2016
 (Girjashankar @ Pappu & 2. Peeru Singh Lodhi V/s. State of M.P.)

          ________________________________________
                Ms Seema Sharma learned counsel for the applicant in
                 Cr. Revision No. 1369/2016.
                Shri A.S. Rathore learned counsel for the applicants in
                 Cr. Revision No. 1372/2016.
                Shri Valmik Sakargayen learned Govt. Advocate for
                 respondent/State.

_______________________________________

[ORDER PASSED ON 06.04.2021]

The applicants have filed the present revisions u/s. 397 and 401 of the Cr.P.C. against the judgment dated 8.12.2015 passed by Additional Chief Judicial Magistrate, Indore whereby they have been convicted under section 304-A of the IPC and sentenced to 2 years' RI with fine of Rs.500-500/- and judgment dated 20.10.2016 passed by Sessions Judge in Criminal Appeal Nos.976/2015 and 1005/201, Indore, whereby the conviction under section 304-A I.P.C. has been upheld but the sentence has been reduced from 2 years RI to 1 year RI with fine of Rs.500/-.

2. Prosecution case, in nutshell, is as under :

(i) That on 4.5.2010, Manish Rajani aged about 16 years 6 months visited "Tarun Pushkar", Mhow Naka, Indore for swimming and died due to drowning in the pool. Damodar Joshi Incharge Inspector posted at "Tarun Pushkar" - took him to the District Hospital, Indore where he was declared dead. Assistant Sub Inspector S.V.S. Parihar

- : 2 :-

CRR Nos. 1369/2016 & 1372/2016

posted in Police Station Chhatripura, Indore registered a 'Merg' No.16/2010 under section 74 of the Cr.P.C and started the investigation, which resulted in the registration of FIR ,vide Crime No.163/2010 for the offence u/s. 304-A of I.P.C. against unknown person..

(ii) Vide letter dated 6.5.2010, Indore Municipal Corporation informed the Incharge of Police Station that the Indore Municipal Corporation had established the swimming pool in the name of "Tarun Pushkar" for swimming activities available to the members and their guest on charges . The bylaws framed by the Indore Municipal Corporation for availing the facility of the swimming pool were collected by the police vide Exh. P/14. As per bylaws, any person aged between 10 to 18 years can become a member with the prior consent of parents. The power has been given to the Municipal Corporation to permit any person for one day use on payment of charges as a guest member. The police have also collected the information about the employees posted in "Tarun Pushkar" at the time of the incident and vide letter dated 6.5.2010 information was given to the effect that, apart from the other staff Shyam Tiwari and Surendra Singh were posted as a trained swimmer; Girijashankar and Peerusingh were posted as "Jeevan Rakshak. On the basis of the aforesaid information, four persons viz. 1. Shyamprasad Tiwari, 2. Surendra Singh, 3.Girijashanker Tiwari and 4. Peerusingh Lodhi were made accused in FIR arrested. Thereafter, the investigation was completed.

(iii) After the investigation, the police filed the Final Report ( Chalan) on 19.10.2010 against all the accused of the offence punishable under section 304-A and 34 of the IPC. Learned Chief Judicial Magistrate has framed the charges u/s. 304-A and 304-A/34 of the I.P.C. against 1. Shyamprasad Tiwari, 2. Surendra Singh,

- : 3 :-

CRR Nos. 1369/2016 & 1372/2016

3.Girijashanker Tiwari and 4. Peerusingh Lodhi. They denied the charges and pleaded for trial.

(iv) To prove the above charges the prosecution has examined Jitendra Wadhwani as P.W.1 who deposed that on 4.5.2010 near about at 7.30 am. he along with his brothers Kamlesh and Chirag and cousin - Rajendra went to "Tarun Pushkar" for swimming. He also took his cousin brother Manish Rajani and Rajendra Rajani as one day guests. Sharad Tiwari and Pandey Ji took their swimming test. After swimming, he came out from the swimming pool along with Kamlesh, Chirag and Rajendra and Manish Rajani was inside the pool. Later Manish Rajani came out of the pool but due to the water moss outside the pool, he fell in the pool and thereafter he was not seen. He immediately gave the alarm to the employees of the Municipal Corporation and they jumped into the pool and took out the body of Manish Rajani. They tried to squeeze the water from the stomach of Manish Rajani. There was no doctor available and no other life-saving facility was there to save him. Similar evidence was given by Rajendra (P.W.2); Kamlesh (P.W.3) and Chirag (P.W.4).

(v) The prosecution also examined Damodar Joshi as P.W.5 who was posted as Incharge of "Tarun Pushkar" on 4.5.2010. According to him, Girijashankar and Peerusingh were deputed as "Jeevan Rakshak" but their substantive post was "Beldar" and according to him, if any person is found drowning in the swimming pool, it is the duty of the "Jeevan Rakshak" to save him. He has further deposed that he was not definite that the deceased died because of the negligence of any employee of the Indore Municipal Corporation accordingly, he was declared hostile. In examination-in-chief, he has admitted that because of the negligence of Surendra Singh, Girijashankar and Peerusingh, Manish Rajani died in the pool. In para 10 of his cross-examination he has admitted that on the date of

- : 4 :-

CRR Nos. 1369/2016 & 1372/2016

the incident, the water of the swimming pool was muddy so that he was unable to see inside the pool.

(vi) The prosecution has examined Amanulla Khan as P.W.6 who was posted as Horticulture Officer and he stated that Damodar Joshi (P.W.5) was Incharge of the Swimming Pool and Shyam Tiwari and Surendra Singh were posted as a trainer. According to him, Shyam Tiwari was on leave on 4.5.2010. Dr. Bharat Bajpai, Medical Officer posted in District Hospital, Indore was examined by the prosecution as P.W.7 and he confirmed that Manish Rajani died because of the drowning in the swimming pool. The prosecution also examined S.V.S. Parihar, Assistant Sub Inspect who investigated the case.

In defence, the accused did not examine any witness and pleaded that they were falsely implicated in the case.

(v) After appreciating the evidence that came on record, the learned Chief Judicial Magistrate concluded that the prosecution has proved beyond all reasonable doubt that due to the negligence on the part of accused persons, Manish Rajani died. Vide judgment dated 8.12.2015, the learned trial Court has applicants convicted and sentenced the applicants, as stated above, but acquitted Shyam Tiwari from the charges because he was on leave on the date of the incident.

2. Being aggrieved by the aforesaid judgment of conviction and sentence the applicants preferred appeals and vide judgment dated 20.10.2016, learned Sessions Judge has affirmed the conviction u/s. 304-A of the IPC but reduced the sentence from two years' RI to one year RI and maintained the fine amount. Hence, the present revisions before this Court.

3. Ms. Seema Sharma, learned counsel appearing for the applicant - Surendra Singh, has argued that there was unexplained delay in lodging the FIR because the incident took place on 4.5.2010

- : 5 :-

CRR Nos. 1369/2016 & 1372/2016

and the FIR was lodged on 8.5.2010 , hence prayed that on this ground alone, the conviction is liable to be set aside. She has submitted that Manish Rajani was permitted to enter into the swimming pool as a guest member and as per bylaws (Exh. P/14) the Commission of Municipal Corporation or its employees are not responsible for any accident that taken place while swimming in the swimming pool. Therefore, there is protection available to the present applicant from prosecution. As per the evidence of P.W.1 to P.W.4, deceased Manish Rajani was a good swimmer. It has also been admitted by them that vide Exh. D/1 Manish Rajani paid the charges and he was permitted to enter the swimming pool. In the receipt also, it was specifically mentioned that the guest would be responsible for any accident. None of the witnesses took the name of the applicant, responsible for the accident to the police. The applicant has been made accused only because he was posted in the swimming pool as a trainer without there being any negligence on his part. P.W.4 has deposed in the court that the safety devices like tubes and ropes were available in the swimming pool. The deceased died due to an unavoidable accident for which no one can be held responsible, hence the conviction and sentence passed by both the courts below are liable to be set aside.

4. Shri A.S. Rathore, learned counsel, appearing for the applicants - Girijashanker and Peerusingh, has added in the above submission that the substantive post of the applicants was "Beldar" and they were not posted as "Jeevan Rakshak" in the swimming pool. They were never trained as swimmer or"Jeevan Rakshak", therefore, they cannot be held responsible for the accident occurred on 4.5.2010. They had no swimming certificate and they were never appointed under the sports quota. The employees who were responsible for the maintenance of the swimming pool have been

- : 6 :-

CRR Nos. 1369/2016 & 1372/2016

made as witnesses in this case and the present applicants were made accused as the scapegoat, therefore, they are liable to be acquitted. Learned counsel has further submitted that the Municipal Corporation can be held responsible under the tortuous liability under civil law, but there is no culpability attached with the said incident. As per the bylaws, it was made clear to the visitors and members that the Commissioner or the employees of Municipal Corporation can be held responsible for any accident. Therefore, the applicants cannot be punished under section 304-A of the IPC. In support of his contention, he has placed reliance over the judgment passed by this Court in the case of B.P. Ram & others V/s. State of M.P.: 1991 Cr.L.J. 473. He has also placed reliance on the judgment passed by the High Court of Madras in the case of Narender Bir Singh V/s. State: 2010-1-LW(Cri.) 626 in similar facts and circumstances, where the President and Manager of the Hotel were made accused on account of death in the swimming pool. The High Court of Madras has quashed the charge u/s. 304-A of the IPC on the principle that 304-A applies to the cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. Section 299 of IPC includes culpability of mind whereas Section 304-A excludes culpability of mind menrea plays a major role to distinguish both. Knowledge of the person that his act would directly result in causing death is culpability. If the person does not intend even to cause harm but the act resulted in causing death then culpability is absent. A similar view has been taken by the High Court of Karnataka in the case of Melvin Kumar V/s. K.S. Harisha : 2019 (3) KCCR 2353 in which it has been held that in order to fasten the criminal liability for offence u/s. 304 of IPC, the prosecution is required to prove that the act of the accused was the proximate and immediate cause of death and that the death was caused without the

- : 7 :-

CRR Nos. 1369/2016 & 1372/2016

intervention of another person's negligence. Learned counsel further submitted that at the time of the accident, as many as 200 members and guests were inside the swimming pool and due to the unfortunate accident, Manish Rajani died, therefore, it cannot be said that the applicants were negligent in the death of Manish Rajani or there was any lack of infrastructure or safety devices in the swimming pool. Similarly, the accident cannot attract the culpability of the present applicants for the offence u/s. 304-A of the IPC. Hence, the impugned conviction and sentence is liable to be set aside and the applicants are liable to be acquitted.

5. Shri Valmik Sakargayen, learned Govt. Advocate appearing for the State has argued in support of the impugned judgments passed by learned Chief Judicial Magistrate as well as by Sessions Judge and submits that the scope of interference by the revisional court is very limited. Both the trial courts as well as the appellate court have considered the evidence that came on record and rightly convicted the applicants as they were responsible for the accident that took place on 4.5.2010 in which Manish Rajani died. There was no proper maintenance of the swimming pool. The applicants were not alert when the members and guests were swimming in the swimming pool. Had they been alert, they could have saved the life of Manish Rajani. It is not disputed that the applicants were on duty on 4.5.2010 in the "Tarun Pushkar".

I have heard the learned counsel for the parties at length and perused the record of both the trial courts as well as the appellate court.

6. There is no challenge to the cause of death of Manish Rajani on 4.5.2010 due to drowning in the swimming pool in these Criminal Revisions. Admittedly deceased Manish Rajani visited the swimming pool as a guest on 4.5.2010 by paying the charges and got

- : 8 :-

CRR Nos. 1369/2016 & 1372/2016

a ticket (Exh. D/1) in which it was printed that if any accident takes place, a guest would be responsible for the same. Therefore, it is not required to re-appreciate the evidence for the cause of the death of Manish Rajani in the incident that took place on 4.5.2010.

7. The Municipal Corporation has established the complex of swimming pool in the name of Tarun Pushkar for use of the public subject to the terms and conditions prescribed in the bylaws. P.W.1 to P.W.4 visited the swimming pool on 4.5.2010 as members and they brought Manish Rajani as a guest by paying the charges, therefore, they all were bound by the provisions of the bylaws. In the bylaws, it was made known to everyone that the Indore Municipal Corporation and its employees shall not be responsible for any accident that takes place while swimming.

8. The word "negligence" has not been defined in the IPC, the Supreme Court of India in the decision given in Mahadev Prasad Kaushik v. State of U.P. and Others [(2008) 14 SCC 47], has held that "though the term negligence has not been defined in the Code, it may be stated that the 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 reasonable and prudent man would not do. There can be negligence or gross negligence on the part of the Municipal Corporation in the maintenance of the swimming pool and providing safety measures in it, in order to avoid any accident. It is not the case of the prosecution that the pool was not properly maintained by the Municipal Corporation or by the applicants or there were no safety measures provided in the pool. The negligence can attract civil as well as criminal liability both. Therefore, based on evidence collected by the prosecution, in this case, it has to be seen as to whether the applicants were negligent in

- : 9 :-

CRR Nos. 1369/2016 & 1372/2016

causing the death of Manish Rajani on 4.5.2010 ? So far as Girijashankar and Peerusingh are concerned, as per the prosecution, they were appointed as "Beldar" in the Municipal Corporation but deputed as "Jeevan Rakshak" in the swimming pool. One can be appointed as "Jeevan Rakshak" subject to fulfilling the qualification who must be trained in swimming so that he could save any person from drowning in the pool. They being Class-IV employees were posted as "Jeevan Rakshak" by the higher officers of the Municipal Corporation despite any training and qualifications. Therefore, applicants cannot be held responsible for any accident. The higher officers of the Municipal Corporation were responsible for posting untrained and unskilled persons as "Jeevan Rakshak" despite knowing that they did not possess any qualification for the said post. The "Beldar" could have been posted for maintenance, cleaning, etc. but not as a "Jeevan Rakshak". Therefore, making them as accused in this case was only an eyewash to save the real culprits. Hence, their conviction and sentence are wholly unjustified in this case. Accordingly, the revision petition filed by applicants - Girijashanker and Peerusingh is allowed and their conviction and sentence are hereby set aside.

9. So far as applicant - Surendra Singh is concerned, he was posted as a trainer and at the time of the accident, he was very much present in the complex of the swimming pool. But, at the time of the entry of Manish Rajani into the swimming pool, he was not informed as to whether the deceased was a trained swimmer or he came to learn the swimming. It was the duty of the guest or the member i.e. P.W.-1 to P.W.-4 to inform the trained swimmer that the deceased came to learn the swimming or to enjoy the swimming. At that time number of swimmers/ members/ guest were present in the pool, then it was not possible for a trainer to keep eye on every swimmer.

- : 10 :-

CRR Nos. 1369/2016 & 1372/2016

According to P.W.1 to P.W.5, Manish Rajani was a trained swimmer, therefore, the applicant was not supposed to attend and watch each and every swimmer. After swimming, P.W.1 to P.W.-4 came out from the pool but Manish Rajani could not come out, immediately one of the trainers jumped in the pool and took him out. He was given primary treatment to squees water from his stomach and thereafter he was taken to the hospital. It is not the case of the prosecution that the number of members and visitors were present at a time beyond the capacity of the pool or there was any defect in the design of the pool that resulted in the accident.

10. To attract Section 304-A I.P.C. the prosecution must establish that the accused has caused the death of any person by doing any rash and negligent. Culpable homicide is defined in Section 299 of the IPC and according to which, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 299 includes culpability of mind whereas Section 304-A of I.P.C. excludes culpability of mind.

It is settled that criminal liability under Section 304-A I.P.C. can be fastened when the prosecution proves beyond reasonable doubt that the death of the victim was the result of a rash and negligent act of the accused and the act must be the immediate and proximate cause of the death. The Supreme Court of India in the case of Kurban Hussein Mohamedalli Bangawalla v. State of Maharashtra (AIR 1965 SC 1616) and Suleman Rahiman Mulani and Another v. State of Maharashtra (AIR 1968 SC 829) has said that "To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result

- : 11 :-

CRR Nos. 1369/2016 & 1372/2016

of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have been the causa sine qua non."

11. In the case in hand, it is not the case of the prosecution that the applicant Surendra Singh had any intention to cause harm to Manish Rajani which has resulted in his death, hence culpability of mind is absent. Had the applicants been informed that Manish Rajani is not a trained swimmer and he had to watch him while swimming and he did not keep eye on him, then the negligence could have been inferred. But it is not a case of the prosecution that Manish Rajani or P.W.1 to P.W.5 had ever informed the applicant - Surendra Singh that Manish Rajani is a newcomer and he cannot swim without the help of a trainer. When at a time number of members and guests were swimming in the pool, then for the singular accident, the trainer cannot be held responsible to accuse him u/s. 304-A of the IPC., hence conviction of Surendra Singh is also liable to be set aside.

12. In view of the foregoing discussion, these revisions filed by the applicants - Surendra Singh, Girijashanker Tiwari and Peerusingh deserve to be and are hereby allowed and the impugned judgment dated 8.12.2015 passed by learned Addl. Chief Judicial Magistrate and judgment dated 20.10.2016 passed by Sessions Judge, Indore both are hereby set aside. The applicants are acquitted from the charge u/s. 304-A of the IPC.

Records be sent back to the concerned court forthwith. Let a photocopy of this judgment be retained in the connected revision.

( VIVEK RUSIA ) JUDGE Alok/-