i'sK^SR^'sawS^'^S^SS^^Wf^swr^wefW^:: ••'i""i*MiT»"• • ••ii(*iCi»'i*'itiiN'i-ir~<h*nn'lhi . '.^Tt;».'" 'i^«'lhiia-»ht• ' •v:afi£. ~lBj. is:!f? W- CoriBnueus B^a a^t Nant, BKiiaij; IfERfrttfr ^KW^H-^^^efats ity s*»* SsSa <rf [tabotir FE i-^-\ -^ l^!(!|cl HIGH COURT OF CHHATTISGARH AT BILASPUB Criminal Revision No.55 of 2005 versus R.B.Sinah Stats of Chhattisaarh Shri Manindra Shrivastava, Senior Advocate assisted by Shri Ashish Shrivastava, Advocate for the applicant. Shri Praveen Das, Deputy Government Advocate and Shri Pankaj Shrivastava, Panei Lavvyer for the State/respondent. ADDJication under Section 397 ofthe Code of Criminai Procedure O RD E R (23-11-2039) This revisson is directed against the impugned order dated 24- 11-2004 passed in Criminal Appeal No.6/M.P.I.R.Act/IV/2003 by Industrial Court, Raipur arising out of the judgment dated 28-11-2002 passed by Judicial Magistrate First Ciass, Labour Court, Durg in Criminal Case No.372/Factories Act/99. By judgment dated 28-11 - 2002 the learned Magistrate has acquitted the applicant/accused of the offence under Section 92 of the Factorles Act, 1948 whereas by the impugned order dated 24-11 -2004 while reversing the judgment of the tearned Magistrate the learned industrial Court has convicted the applicant/accused under Section 92 of the Factories Act, 1848 and sentenced him to pay flne of Rupees One Lakh, in defauit of payment of fine the applicant/accused to undergo rigorous imprisonment for 6 months. 2. Brief facts of the case are at the relevant time the applicant/accused R.B.Singh was workihg as Factory Manager in -2.- Continuous Casting Shop, Bhitai Steel Plant, Bhilai. it is alleged that on 4-6-1999 when one Budharu was operating the crane and he was iifting last two heat slabs of a stacK; 16 heat slabs stacked nearby toppied due to jerk and one of the 16 heat siabs fell on the deceased Dharam Singh who was working as Yard Assistant and his duty was to give signai to the crane operator for shiftlng ths slabs to a particular piace. After the incident, a case was registered against the applicant/accused on the ground that on the relevant date as he was working as factory manager it is he who was responsible Tor the entire act. 3. in support OT its case the prosecution has examined 2 wtnesses nameiy Mahesh Kumar Agrawal, snspector of Factories and Deputy Director of Industria! Health and Safety, Durg and Budharu the crane operator. After recording evidence of these two witnesses, the learned Magistrate vlde his judgment dated 28-11-2002 has acquitted the appiteant/accused by hoiding that the slab fell because of jerk. The learned Magistrate has held that the prosecution has faited to prove its case against the applicant/accused beyond all doubts. ft has been furthsr held by the ieamed Magistrate that Budharu, the crane operator has not supported the prosecution case and, therefore, merely on the basis of the evidence of Mahesh Kumar Agrawa!, the applicant/accused cannot be convicted. 4. The judgment dated 28-11-2002 has been reversed by the appellate Court vide (mpugned order dated 24-11-2004 passed in the crlminal appeai preferred by the State Government. Hence this revlsion. ,.^" ^,^ ff ('f' °:'.^v^y '";:~s-3s».^' -I- 5. it has been argued by learned Senior Counsel for applicant/accused that even if the entire evidence is taken ss it is, the applicant/accused cannot be held liable for the unfortunate accident tich had taken p!ace on 4-6-1999. The iearned Senior Counsei submits that the crane operator Budharu has exptained as to how the accident had taken place and according to him after receiving signal from the deceased Dharam Singh when Budharu was lifting tast two heat slabs of a stack, 16 heat slabs stacked nearby toppled due to jerk and one of the 16 heat slabs fell on the deceased Dharam Singh. Learned Senior Counsel further submlts that this witness has not made any allegation whatsoever against the applicant/accused. He further submlts that in fact, as per the statement of this witness, the accident took piace on account of giving wrong slgnal by the deceased Dharam Singh and immediateiy after giving signal, it was expected frcm the deceased Dharam Singh to leave the spot and to maintain distance of 8 to 10 feet. He further submits that instead of doing so the deceased was standing there only and unfortunately one heat slab fell on him and the accident took place. Learned Senior Counse! also refers the statement of Mahesh Kumar Agrawal. As per the statement of this witness, there is no aitegation against the applicant/accused because it has not been brought on record as to what was the duty assigned to the apptteanVaccused and in what manner he was negligent. Learned Senior Counsel further submlts that admittedly the applicant/accused was not present on the spot at the time of the occurrence and the accident was mereiy reported to the applicant/accused. According to him, when no roie was assigned to the applicant/accused and it has /'}•' ..•-^'.^ %. ^-^•sSSSs S '• •^y-J^ ••:^ ,y -4- not been brought on record as to in what manner the applicant/accused was negligent and failed to perform any particular act, the applicant/accused cannot be convteted as has been done by the learned appellate Court. It has been argued by teamed Senior Counsel that the judgment of acquittal passed by the leamed Magistrate is a well-reasoned and speaidng judgment and the learned Magistrate has arrived at a particuiar conclusion after due appreciation of evidence and, therefore, whlle entertaining the appeal against acquittal the learned Industriai Court ought to have been vigilant and aware of the basic principtes governing the law of appeai against acquittal. According to learned Senior Counsel; the enth'e evidence has been re-appreciated by the ieamed appeliate Court whteh is not permissible under law. Lastly, it has been argued by learned Senior Counsel that the applicant/accused has already retired from his service and on account of the impugned order, which has put a stlgma on the applicant/accused; the applicant/accused has suffered a lot and the benefrt of his retirat dues has been adversely affected. 6. On the other hand, supporting the impugned order passed by ttie Industrial Court, it has been argued by Shri Praveen Das, iearned Deputy Government Advocate and Shri Pankaj Shrivastava, learned Panel Lawyer for the State/respcndent that the accident had taken place as the crane operator was not vigllant while shifting the heat slabs from one place to another piace and the slabs were not kept in order as required. It has been further submitted that the applicant/accused cannot shirk from his liability being the factory manager as per Section 41 ofthe Factories Act, 1948 and Rule 73-F of •5'- the Madhya Pradesh Factories Rules, 1962. It is the appiicant/accused alone who is responsibie for the accident. 7. I have heard tearned counsel for the parties and perused the material availabte on record including the impugned judgment passed by the iearned Magistrate with utmost circumspection. 8. Witness Budharu, the crane operator has stated that when he was lifting iast two heat slabs of a stack with the help of the crane, the heat siabs stacked nearby toppled on account of jerk which crajld be caused due to pressure and one of them fell on the deceased Dharam Singh. The evidence of the crane operator Budharu further shows that the deceased Dharam Singh was the person who was giving signai to the crane operator Budharu as to whether the slabs were being rightly picked by the crane operator or not and then where they were to be shifted. His statement further reveals that after giving signal, jt was required from the deceased Dharam Singh to shift himself from his place and to maintain distance of at least 8 to 10 feet. However, instead of moving from his place he was standing on the very spot and unfortunately the slab felt on him. The statement of Mahesh Kumar Agrawal gives an entirely different story where the stacking of the stabs was not properiy done, as a result of which, one of the slabs fell on the deceased Dharam Singh causing his death. Even this witness has not stated anything against the applicant/accused but has stated that had the factory manager put the slabs on a ptane land in a proper and safe manner maintaining a proper distance, the slabs wouid not have toppled and wouid not have caused any injury to the deceased Dharam -^- Singh. The entire statement of this witness does not make out any case against the applteanVaccused. 9. Section 73-F of the Madhya Pradesh Factories Rules, 1962 reads as under: "73-F. Stacking and storing of materials, ete.—No material or equipment shall be stacked or stored in such a manner as to cause risk of bodiiy injury." 10. For establishing any case against the applicant/accused burden was on the prosecution to lead proper evidence. Except the statement of crane operator Budharu there is no other evidence against the applicant/accused and Budharu has been deciared hostile. Merely on the basis of statement of Mahesh Kumar Agrawal who was working ss Inspector of Factories and Deputy Director of industrial Health and Safety, Durg, the applicant/accused cannot be convicted. The finding as arrived by the learned appellate Court cannot be justified because the evidence has not been led by the prosecution to that effect. Had the prosecution examined more witnesses to show the negligence on the part of Budharu and further negligence on the part of the applicant/accused, the things would have been different. There is absolutely no evidence against the applicant/accused and he has been made accused simply because he was working as factory manager. There is no evidence on record to show as to in what manner the applicant/accused was negligent, what was the duty assigned to the appiicant/accused, what was his nature of work, who were the other persons working in the department/area where the accident had taken place, what were the instructtons issued by the applteant/accused and ^:^ 1 j ./^' ff 'SS"'" ,6* -7- what he was required to do. In absence of any such material, the applicant/accused cannot be held liable for the unfortunate death ofthe deceased Dharam Singh. Moreover, while reversing the judement of the learned Maglstrate, the learned appellate Court has given a different finding and has ignored the fact that the judgment of acquittal passed by the learned Magistrate was the result of one of the plausible views and the same cannot be interfered with uniess the same is perverse. It Is already said that it was an unfortunate accident where the deceased Dharam Singh died but there is no material on record to convict the applicant/accused on the basis of evidence adduced by the prosecution. This Court is of the view that the impugned order cannot stand. 11. tn the result, the impugned order dated 24-11-2004 passed by the Industrial Court, Raipur, convicttng the applicanVaccused under Section 92 ofthe Factories Act, 1948 and sentencing him to pay fine of Rupees One Lakh, is set aside. The criminal revision is ailwved. The appllcant/accused is acquitted of the charge under Section 92 of the Factories Act, 1948. Fine, if paid, shali be refunded. , - - SA^^^t ^et O-ViN^ ^<ul^^ !3i?&a!