Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 1492 / PS / 2018
(Judgment)
MHMM190055562018
Received on :- 02/05/2018,
Registered on :- 02/05/2018,
Decided on :- 01/04/2025,
Duration :- 06 Y. 10 M. 30 D.
Exh. :- P -
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS,
RAILWAY MOBILE COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY NILESH V. BANSAL)
(a) The serial No. of the case; : 1492/PS/2018
(b) The date of commission of
the offence;
: 12/02/2018
(c) The name of the
complainant (if any);
: The State (Oshiwara Station in
C. R. No. 95/2018).
(d) The name of the accused
person and his parentage
and residence;
: Jignesh Shantilal Patel,
Age :- 49 Years, Occ. :- Private Job,
R/o. :- 802 / Avighna Residency, Haji
Bapu Road, Malad (East), Mumbai
400 097
(e) The offence complained of
or proved ;
: Under Section 304-A of the Indian
Penal Code.
(f) The plea of the accused and
his examination (if any);
: The accused pleaded not guilty.
(g) The final order; : The accused is acquitted.
(h) The date of such order; : 01/04/2025,
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2 C. C. NO. 1492 / PS / 2018
(Judgment)
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Mr. A. B. Kamble, APP for the State.
Mr. H. Singh, Advocate for the accused.
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J U D G M E N T
(Delivered on 01/04/2025)
1. The accused is prosecuted for the offence punishable under
Section 304-A of the Indian Penal Code.
2. In brief, it is the case of the prosecution that informant
Ashokkumar Nishad has given F.I.R. at police station Oshiwara on
13/02/2018 that he worked as a labour with Umila Traders and Company
since two years under Labour Contractor Shivkumar Porate. He is working
along-with his nephew deceased Bhuvaneshwar Prasad since two years on
the construction site of Sevasadan Society, SRA, opposite City
International School, Adarsh Nagar Jogeshwari (East), Mumbai along-with
15 to 20 workers. On 12/02/2008 at about 9.00 a.m. he went with
deceased Bhuvaneshwar Prasad and other workers for work and as per
instructions of supervisor deceased Bhuvaneshwar Prasad alongwith
Rajender and Sukcharan were working on 13th floor on the construction
site. They were given work to collect the waste material and send it by lift
on the ground floor.
3. At about 4.30 p.m. when he was working on the ground floor,
he heard a sound of something fallen near the crane lift. At the same time
there was an alarm by someone, he alongwith workers on the site went on
the direction of the sound and has seen that Bhuvaneshwar Prasad was
lying injured. Bhuvaneshwar Prasad was working on 13th floor and it was
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(Judgment)
gathered that he fall down while working. Bhuvaneshwar Prasad has
sustained injuries over his head, waist and other parts of the body as he
fall down he fall unconscious. He alongwith other workers has taken
Bhuvaneshwar Prasad by ambulance to Siddharth Hospital. Doctor has
examined him and has declared him dead on 5.40 p.m.
4. Umila Traders and supervising working for them has not
provided safely measures helmet, safety belt, safety net and safety
measures were not provided, due to their negligence Bhuvaneshwar
Prasad died as he fall down from 13th Floor. Hence, this F.I.R.
5. On the basis of the report given by the informant, crime no.
95/2018 came to be registered against Jignesh Shantilal Patel, who was
working as a supervisor of Umila Traders and Company of the the accused
for the above said offence at police station Oshiwara and investigation was
started by Investigating Officer API Vilas Mote. He visited to the spot of
incident, prepared spot panchanama, prepared inquest panchanama,
recorded statement of informant and witnesses, collected postmortem
report of the victim and as there is incriminating evidence against the
accused, he filed charge-sheet against the accused.
6. The particulars of the offences were read-over and explained
to the accused. He pleaded not guilty and claimed to be tried. The
prosecution has examined total seven witnesses. The statement of the
accused under Section 313 of the Code of Criminal Procedure came to be
recorded at Exh.P-15. The defence of the accused is that victim
Bhuvaneshwar Prasad falls as his own mistake as his leg was slipped.
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(Judgment)
7. The points for determination alongwith my findings thereon
as under :-
POINTS FINDINGS
1] Does the prosecution prove that the accused
failed to provide safety measures i.e. safety
belt, helmet in respect of construction work
and also not provided safety net to the said
building and due to which worker fell down
from thirteenth floor, resulting into his death
and such act in the capacity of site supervisor
was rash and negligent not amounting to
culpable homicide ?
No
2] What order ? The accused is
acquitted.
REASONS
AS TO POINT NO. 1 :-
8. The prosecution has examined the informant Ashok Kumar
Nishad (P. W. 1), he has referred F.I.R. (Exh. P-06) in his evidence before
the Court. Workers working with victim / Bhuvaneshwar, Rajendra Sidhar
(P. W. 2), Shivkumar Porate (P. W. 3), Sadhuram Jagat (P. W. 4) has
deposed the incident as per submission in F.I.R. Gist of the evidence of
these witnesses is that victim Bhuvaneshwar Prasad working on 13th floor
and sending waste material by lift trolley. Both of the lift trolley was
suddenly broken and he directly fall down on the ground floor. During
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(Judgment)
cross-examination they further clarified that victim Bhuvaneshwar Prasad
from the said trolley as his own mistake as his leg was slipped.
9. Prosecution has examined Pankaj Mehta (P. W. 5) who
appears to be witness on spot panchanama. He has not supported the case
of the prosecution. Prosecution has also examined Narayan Potdar
(P.W.6), he is also witness on spot panchanama. He has proved spot
panchanama (Exh. P-12) in his evidence before the Court. Prosecution has
examined Investigating officer – API Vilas Mote (P. W. 7), he has referred
Inquest panchanama (Exh. P-14), Spot panchanama (Exh. P-12) in his
evidence before the Court. In cross-examination he admits that he has not
taken any photographs and video of the construction site.
10. Perusing spot panchanama (Exh. P-12), Investigating Officer
API - Mote has visited the spot at about 12.45 p.m. on the next day.
Construction site is a twenty-second floors building having a lift and a
shed in a site of building which is having cement in it. Other-than this
spot panchanama (Exh. P-12) does not bears any contents about what
safety measures are provided by the supervisor etc. It is also brought on
record that no photographs or video was taken by the Investigating officer
at the time of preparation of such panchanama. Upon general perusal of
spot panchanama, it is incomplete to define the negligence as expected in
such cases.
11. It was the duty of the Investigating officer to describe the
negligence of the accused in detailed before forwarding charge-sheet
against the accused before the Court. In present case Investigating officer
has recorded incomplete spot panchanama which was the best evidence to
prove absence of the safety measures. Spot panchanama bears nothing
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(Judgment)
about what the Investigating officer has seen on the 13th floor and what
safety measures were present or what was required to avoid such incident.
Even statement recorded by Investigating officer are incomplete that
supervisor has not provided safety belt, helmet and other things. There is
nothing before me to consider that these things were not provided by
accused / supervisor. Investigating officer has not collected the best
evidence for the reasons best known to him. Due to want of evidence, it is
not proved that accused / supervisor has not provided safety measures
which resulted in accident and death of victim Bhuvaneshwar. Hence, I
answer point no. 1 in the negative.
AS TO POINT NO. 2 :
12. The prosecution failed to prove guilt of the accused.
Therefore, the accused is liable to be acquitted. In the result, in answer to
point no. 2, I pass the following order.
ORDER
1 The accused is acquitted of the offence punishable under Section
304-A of the Indian Penal Code vide Section 255 (1) of the Code
of Criminal Procedure.
2 The bail bond of accused stands cancelled and he be set at liberty.
3 The accused to execute P. R. Bond of Rs. 15,000/- vide Section
437–A of the Code of Criminal Procedure for appearance before
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(Judgment)
the higher Court, if such court issues notice to him for his
appearance.
Place :- Mumbai.
Date :- 01/04/2025
(Nilesh V. Bansal)
Judicial Magistrate First Class,
Railway Court, Andheri, Mumbai.
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