ORDER : RADHAKISHAN AGRAWAL, J. 1. This Criminal Revision filed under Section 397 of the Cr.P.C. is directed against the Order dated 13.06.2012 passed by the State Industrial Court, Raipur in Criminal Appeal No.26/CGIRAct/IV/2011 whereby the Industrial Court dismissed the appeal while affirming the judgment dated 21.11.2011 passed in Criminal Case No.811/FA/2006/Factories Act/Fatal by the J.M.F.C-cum-Labour Court, Durg convicting the applicants under Section 92 of the Factories Act, 1948 (hereinafter referred to as the Act, 1948) and sentencing them till rising of the Court with fine of Rs.1,00,000/- each and in default thereof, further they shall suffer SI for three months each. 2. Brief facts of the case of the prosecution are that at the relevant time, the applicant No.1 was working as Executive Director (Works) and was in-charge of Sintering Plant Factory whereas the applicant No.2 was working as Deputy General Manager and was also in-charge of Sintering Plant-1 in Bhilai Steel Plant (in short, the B.S.P.). It is alleged by the prosecution that on 22.07.2006 the accident occurred, in which, one Kirtanlal Gond has died and during inspection of the Plant, Shri K.K.Dwivedi, Factory Inspector found that an accident had occurred at the Plant’s premises on 22.07.2006 in absence of proper safety measures. It was also found by him that the accused persons violated Section 7A(1) of the Act, 1948 as it is their responsibility to ensure the safety of every worker employed in the Factory and on the date of incident, no protective cover was installed on either side of moving end pulley of conveyor belt No.C-1, as result of such lapse on their part, Kirtanlal Gond, who was employed on that particular date, died after becoming entangled in the conveyor belt, which is also in violation of Clause vi (b) of Section 21(i) of the Act, 1948 and hence the applicants failed to perform their duties to ensure the safety of their workers. After such inspection, statements of the witnesses were recorded and then the applicants were issued show-cause notices on 25.07.2006, to which, both the applicants submitted their replies. 3. Not being satisfied by their replies, P.W.1 K.K.Dwivedi registered a case against them and consequently, a charge-sheet under Section 105 of the Act, 1948 was filed in the Court of J.M.F.C-cum-Labour Court, Durg. The applicants abjured their guilt and prayed for trial. 3. Not being satisfied by their replies, P.W.1 K.K.Dwivedi registered a case against them and consequently, a charge-sheet under Section 105 of the Act, 1948 was filed in the Court of J.M.F.C-cum-Labour Court, Durg. The applicants abjured their guilt and prayed for trial. During course of trial, the prosecution has examined only one witness, namely, K.K.Dwivedi, Factory Inspector, Industries and Safety (P.W.1) in support of its case whereas, the applicants examined one Manager K.K.Yadav as D.W.1 in support of their defence. Statements of the applicants were also recorded under Section 313 of Cr.P.C. 4. After appreciation of evidence, both oral and documentary, the learned J.M.F.C. recorded the finding of conviction and sentence, which the Industrial Court upheld, as mentioned in opening paragraph. Hence, this revision. 5. Learned counsel for the applicants submits that the finding of conviction and sentence recorded by the trial Court and affirmed by the Industrial Court, without appreciating the evidence available on record, is erroneous. He further submits that both the learned Courts have failed to appreciate the evidence of defence witness K.K.Yadav, Shift Manager, who was aware of the safety arrangements and in his cross-examination, he had clearly stated that there were properly employed safety and security measures and that, there was emergency switch too for stopping the conveyor belt and apart from such measures, there were rods attached to the tail end pulley for fencing and that, such rods were installed in such a way that they can be removed for cleaning, therefore, the possibility that there were no safety measures is denied. He further submits that the deceased worker Kirtan Lal Gond was working in the plant for the last 12 – 13 years and he was well aware of the safety measures and that, the accident occurred due to own fault and negligence of the deceased worker himself and not on the part of the applicants alone. On these premises, it is prayed that the finding of conviction and sentence recorded by the trial Court and affirmed by the Industrial Court may be set aside and the applicants be set at liberty. Reliance is placed on a decision of this Court rendered in the matter of R.B.Singh vs. State of Chhattisgarh reported in 2009 (4) CGLJ 255 . 6. On the other hand, learned Government Advocate for the State supported the impugned orders passed by both the learned Courts. 7. Reliance is placed on a decision of this Court rendered in the matter of R.B.Singh vs. State of Chhattisgarh reported in 2009 (4) CGLJ 255 . 6. On the other hand, learned Government Advocate for the State supported the impugned orders passed by both the learned Courts. 7. I have heard learned counsel for the parties and perused the record carefully. 8. To appreciate the arguments, first of all, I shall focus on the statement of P.W.1 K.K.Dwivedi, Factory Manager. As per his statement, accident occurred on 22.07.2006, on which date, the fittings and safety guards on both sides of the moving pulley of conveyor belt No.C-1 were not properly fitted. During inspection, he also found that the center that had fallen from the conveyor belt while it was running was being repositioned by workers on the moving conveyor belt as needed and not resorting to implement proper safety and security measures is in violation of Section 7A(1) and Section 21(1)(iv)(b) of the Act, 1948, therefore, on account of such lapse on the part of the applicants, the deceased worker has died. In cross- examination, he admitted that a ladder is provided to reach the moving platform of conveyor belt C-1 and approximately two meters from the last step on the platform, there is a part of the moving pulley of conveyor belt and after descending the ladder, a path is made to reach the moving pulley, which is 3 to 4 feet wide. It also transpires from his statement that on the date of accident, he was not present and visited the Plant on 24.07.2006 and thereafter conducted inspection. He also admitted that the deceased worker is a regular employee and his job was to watch the material on the moving belt and apart from this, he was also engaged to watch whether the material put on the conveyor belt is being moved or not without any pause and whether the bridge is moving properly on its plane or not and further admitted that conveyor belt stops only when the moving belt is moving. Likewise, he admitted that he did not have any knowledge that on the date of accident, why did the deceased worker go to moving pulley and further voluntarily admitted that there were rods installed to protect the moveable pulley. Likewise, he admitted that he did not have any knowledge that on the date of accident, why did the deceased worker go to moving pulley and further voluntarily admitted that there were rods installed to protect the moveable pulley. It is also admitted by him in his cross-examination that by standing near the moveable pulleys, one can determine whether the conveyor belt is running or paused. He also admitted that inspection could be done even during course of moving conveyor belt and at work place there is no need to cross the rods installed there because there is already path way. It is also admitted by him that the rods installed adjacent to moving pulley are for the safety of the workers. 9. Except P.W.1 K.K.Dwivedi, Factory Inspector the prosecution has not examined any other witness. Although the prosecution has cited many employees working over there as its witness but they have not been examined by the prosecution. As regards the evidence of defence witness K.K.Yadav, Manager (D.W.1), he has stated on oath that he has been working in Bhilai Steel Plant since 1999 and at the time of incident he held the position of Manager in the Projector Department and in July, 2006, he was employed as Shift Manager in Sintering Plant No.1 and on the date of incident, the deceased worker was working under his supervision and duty of deceased worker was to monitor whether conveyor belt was working or pausing and there was 10 feet underground near the sintering plant and also there were stairs from three sides to descend. According to him, pulley is located 8 – 10 feet away from the last step of ladder, through which the conveyor belt moves and there is path from the last step to the tail end pulley is 5 – 6 feet wide and that too, there is emergency switch near the ladder, which stops the belt and after it stops, the worker enters and that the pulley is enclosed for security purposes as it is fenced with rods and it can be checked from the upstairs whether the belt is moveable or not and one can descend only after it stops. As per his statement, he acquainted the deceased, who was working in the Plant for the last 12 – 13 years. As per his statement, he acquainted the deceased, who was working in the Plant for the last 12 – 13 years. In his cross-examination, he admitted that the rods installed as fencing from three sides to cover the tail end pulley are upto the height of waist and the rods were installed in such a way that they can be removed for cleaning and in this way, there were three rods installed. 10. A bare perusal of statement of P.W.1 K.K.Dwivedi does not make out any case against the applicants/accused as this witness was not present on the date of accident and after the accident, he visited the Plant and on the basis of statements of employees working there, he made the report and submitted the same. Even as per his statement, there were safety measures installed near work place of labourers/workers. On the other hand, the evidence of defence witness D.W.1 K.K.Yadav, Manager shows that the deceased worker was also working there following the safety and security measures. Moreover, he was working as Shift Manager at Sintering Plant No.1 on 21.07.2006 till 22.07.2006 and his duty was from 10:00 pm to 6:00 am of next day and during course of his duty he checked every nook and corner and ensured that safety measures are followed by the workers. It is expected from the worker/labourer, who is working over there for the last 12 – 13 years, to be careful during working hours and when the switch board for stopping the conveyor belt is provided and also there were fencing rods installed for not moving the same and even conveyor belt would be checked from the ladder, without going over there, then in such a situation, the concerned worker should have used such facility provided by the management. 11. Sections 7A (1) and 21(1) (iv (b) of the Factories Act read as under: “7A. General duties of the occupier.--- (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.” xxxx xxxx xxxx xxxx xxxx 21. 11. Sections 7A (1) and 21(1) (iv (b) of the Factories Act read as under: “7A. General duties of the occupier.--- (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.” xxxx xxxx xxxx xxxx xxxx 21. Fencing of machinery.---- (1) In every factory the following, namely:--- (i) xxxx xxxx xxxx xxxx (ii) xxxx xxxx xxxx xxxx (iii) xxxx xxxx xxxx xxxx (iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely:--- (a) xxxx xxxx xxxx xxxx (b) every part of transmission machinery: and (c) xxxx xxxx xxxx xxxx 12. In the matter of R.B.Singh (supra), it is held in para 10 as under :- “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 declared hostile. Merely on the basis of statement of Mahesh Kumar Agrawal who was working as Inspector of Factories and Deputy Director of Industrial Health and Safety, Durg, the applicant / accused cannot be convicted.” 13. In the light of above decision, this Court is also of the opinion that for proving any case against the applicants/accused, the burden was on the prosecution to lead proper evidence. Except sole testimony of K.K.Dwivedi (P.W.1) on record, there is no other evidence against the applicants/accused. Record would clearly indicate that there is no evidence of other prosecution witnesses to corroborate the evidence of P.W.1. Had the prosecution examined more witnesses to show the negligence on the part of the applicants, the things would have been different. There is absolutely no clinching and cogent evidence against the applicants/accused. It is also pertinent to mention here that there is no evidence on record to show as to in what manner the applicants/accused were negligent. In absence of above material, the applicants/accused cannot be held guilty of the aforesaid offences. There is absolutely no clinching and cogent evidence against the applicants/accused. It is also pertinent to mention here that there is no evidence on record to show as to in what manner the applicants/accused were negligent. In absence of above material, the applicants/accused cannot be held guilty of the aforesaid offences. In the light of above discussion and further considering the statement of D.W.1 K.K.Yadav, Shift Manager and that, the prosecution has failed to prove it s case beyond reasonable doubt, I am of the considered view that the conviction and sentence recorded by both the learned Courts is erroneous, therefore, such finding is liable to be set aside. 14. In the result, the impugned order dated 13.06.2012 passed by the Industrial Court is set aside. The Criminal Revision is allowed. The applicants are acquitted of the said charge. Fine, if paid, shall be refunded.