B.K. Ray, J.
1. This appeal is direct, ed against an order of the learned Sub-diyi. sional Judicial Magistrate, Rayagada acquitting the respondents of the offences under Sections 21(1)(iv)(c) and 22(1)(b) of the Factories Act.
2. The case of the prosecution may briefly be stated thus : On 21-8-73 Y. Nag, a casual mazdoor along with G N Rao, operator were engaged to clean the cotton linters and other materials thrown out from the belt in motion at the D. Duster No. 2 in the rag plant. In the said plant, cotton and sunhemps are fed in a chute from one end and those materials pass through the rag cutter where they are cut into smaller pieces. They are then further carried by an inclined conveyor belt to D. Duster Section over a roller drum which is placed at a height of 9 feet from the ground. The roller drum has inside dia of about 20 inches with 4 arms which rotate clock-wise. No platform is provided at the place and the end of the roller drum is left unguarded. The roller drum is driven by an electric motor. There h a space of 6 inches between the end plate of the motor side of the drum. Some thrown out rags used to be collected in the said space and unless the space is periodically cleaned the motor is likely to be jammed. Y. Nag was cleaning the cotton linters from the said space of 6 inches after climbing a supporting structure and by placing his legs on two verticle stands and holding a bracing with his right hand while the motor and the roller drum with the belt were in motion. While so engaged, he got his left hand entangled in roller drum as a result of which his hand was twisted and severed. Y. Nag lost control of himself fell down on the ground and sustained injuries on his forehead. The Inspector of Factories, Rayagada got the accident report from the respondent-Manager on 25-8-1973 The inspector visited the factory thereafter On enquiry a report was sent by him saying that the respondents who were the occupier and Manager had violated the provisions of Sections 21(1)(iv)(c) and 22(1)(b) of the Factories Act. Accordingly, a prosecution report was launched against the respondents.
3. The defence taken by the respondents is that the roller drum is adequately guard-ed by its position which is at a height in accessible to a man standing on the ground as wel as by its construction so as to make it safe to every person employed in the factory. The plant was designed and directed by Messrs. J.M. Voith of West Germany, a reputed firm for the process of rag cutting. Any further additional guard would have affected the process and would not provide safeguard against negligence. The accident in question took place due to negligence of Y. Nag and without the knowledge, consent and connivance of the respondents,
4. Only two witnesses have been examined in the trial Court-one for the prosecution and one for the defence.
5. P.W. 1, the Inspector-of Factories say on the receipt of the report (Ex. 1) from the respondent-Manager about the accident he visited the premises of J.K Paper Mills and found that the cotton and linters were being canveyer from the rag cutter to the D. Duster by an inclined conveyor belt over a drum of 20 inches diameter. The find of this drum was left unguarded. The drum was driven by an adjacent electric motor fixed on a supporting structure leaving a space of 6 inches between the end plate of the motor side and the drum. Some thrown out rags used to be collected in the said space and unless they were periodically cleaned, the motor was likely to be jammed. According to this witness, this was a dangerous part of a moving machine and this part had not been fenced. P.W.I further says that Y, Nag was a casual mazdoor and was directed to throw out rage collected in between the motor and the drum while the belt was in motion on 21-8-73. Y Nag, while cleaning the space with his left hand, had climbed up a supporting structure, put his legs on two vertical stands and caught hold of a bracing with his right hand During cleaning, the left hand of Y. Nag got entangled inside the drum which was moving at a speed of 100 R.P.M. As a result of this, his hand was twisted and severed. Y. Nag lost control of himself, fell down on the ground and sustained injuries on his forehead. P W 1 asserts that the end of the drum should have been securely fenced and the machine should have been stopped while Y. Nag was cleaning the space. It is further asserted by this witness that a portable platform should have been provided for Y. Nag on which ho could sit while cleaning the space. The accident report (Ex. 1) given by the respondents-Manager does not tally with the evidence of P.W. 1 and his (P.W.l) report. P.W. 1 admittedly it not a witness to the occurrence. P.W . 1. though admits to have examined the operator G.N. Rao and the Supervisor P K. Patnaik, the prosecution has not chosen to examine the two persons. According to P.W.I, the roller drum is driven by an electric motor fixed on a supporting structure. 1 here is a space of only 6 inches between the end plate of the motor side and the drum. Some thrown out rags are collected in the said space and unless the space is periodically cleaned, the motor is likely to be jammed. The said portion is a dangerous part of a moving machine. The term 'dangerous part' is not defined in the Factories Act. Therefore, these words have to be understood according to the meaning given to them in common parlance. Merely because an accident had occured, it cannot be said that that part of the machinery which was responsible for the accident is a dangerous part. In considering whether a machine is dangerous the contingency of carelessness on the part of the workman in charge and the frequency with which the contingency is likely to arise are matters for consideration. A part of the machinery would be called dangerous if it is possible to cause injury to anybody while acting in a way in which a human being may reasonably be expected to act in normal circumstances. The test whether a part of the machine is dangerous or not is objective. The question to be answered for determining as to whether a particular part of the machine is dangerous or not is whether the part of the machinery is in such a position and the method of operation is such that in ordinary course of human affiairs danger may reasonably result from its use if it is not fenced. The law on the point is the same in India as it is in England. In a case reported in All England Law Reports 1950 (Vol II), 987 Burns V. Joseph Terry & Sons Ltd a machine was guarded by a rail about four feet above the floor of a factory occupied by the defendants, but a pulley wheel, shaft and pinion. were above this rail. A circular wire mesh guarded the pulley wheel shaft and pinion but only from a frontal approach leaving the sides open and there was a shelf about nine inches above the top of the pulley wheel. The plaintiff, a boy of seventeen employed by the defendants, placed a ladder against a rotating shaft which was at the top of the machine and above the shelf and climbed up it to collect any material there might be on the shelf. The ladder began to slip sideways, and in trying to clutch some means of support, the plaintiff received injury owing to his hand being crushed be ween the pulley wheel and the pinion. He claimed damages from his employers for breach of their statutory duty to fence the machine securely. It was held that the test whether machinery was 'securely fenced' within the meaning of Section 13(1) was whether it was so fenced as to give security from such dangers as might be reasonably expected. Applying this test it was held in that case that the machinery was securely fenced, It is revealed from the evidence of P.W. 1 us well as of D.W. 1 that in the rag plant there is a conveyor belt which moves over the roller drum. The roller drum is moved by a motor fixed to it. The said drum is at a height of about 9 feet from the floor. The bottom portion of the conveyor belt is provided with guards. There is a projection plate called scrapper guard shadowing the end view of the roller. There is a hood made of iron plate over the roller drum which is called the drum guard. There is a coupling guard in between the motor and the roller drum and the drum guard is seen above the coupling guard. There is a space of about sis inches in between the drum and the coupling guard and this area is not fenced. It is not disputed that the other portions of the drum roller and the electric motor have been properly fenced. The space between the drum and the coupling guard which is not fenced is a dangerous pan of the moving machinery according to P W. 1. D.W. 1 who is an engineer having sufficient experience in rag plant states that the said space is so provided to enable the excess materials from the conveyor belt to fall on the ground through the said space. At times this space requires cleaning by the operator standing on the ground with the help of a thin bamboo stick. D.W. 1 further says that the said part cannot be fenced or guarded as in that case it cannot be cleaned. If it is not cleaned, due to accumulation of cotton linters the motor shall get jammed and the entire machinery will stop. P.W. 1 admits that he had no idea if the rag plant in question is first in India. He admits that during his term of service he came across the rag D. Duster for the first time in the instant case. The Court below had observed that P.W. 1 does not appear to have any experience or to have possessed sufficient idea about the rag plant D. Duster. Merely because P.W. 1 says that the space in between the roller drum and the coupling guard is a dangerous part of a moving machine and requires to be fenced, his statement cannot be accepted. The moving roller drum is. no doubt, exposed at that place, but is fixed at a height of about 9 feet from the ground which is inaccessible to a man standing on the floor. It is admitted that no mobile or fixed platform has been provided there to enable a man to go upon it for the purpose of cleaning the space. Obviously, therefore, the man engaged to clean the space cannot reach it with his hand from the floor, and so, there is no possibility of his hand coming in contact 'with the roller drum. That being so, the defence case that the man engaged to clean the space has to do it by means of a bamboo stick while standing on the floor seems acceptable. If a guard plate is placed to guard the space, the space will be closed. Automatically, there will be accumulation of cotton linters which will jam the motor resulting in. stopping the entire portion of the machine. There is also possibility of the cotton linters getting in between the roller drum itself. It appears that the space has been left open and exposed in order that the excess cotton linters will automatically fall down on the ground. It also seems that the said part of the machinery is fixed at a height of 9 feet in order to make it inaccessible to a man standing on the floor. If a platform is provided there for the purpose of enabling the man to clean the space by standing over the platform, the chance of the men coming In contact with the roller drum becomes greater It is for this reason no platform has been provided there and the open space as well as the roller drum have been made inaccessible for a man standing on the ground P.W. 1 admits that Y. Nag was cleaning the exposed portion with a stick. It is thus clear that the open space has been deliberately kept inaccessible to a man standing on the floor and the man who is required to clean the space has to do it by means of a stick while standing on the floor. If Y Nag instead of cleaning the space with a stick while standing on the floor climaxed up the supporting structure to approach the space, the responsibility was his. The respondents could not reasonably foresee that Y. Nag would climb up the supporting structure to approach the roller drum to clean the space. According to law, if on account of its position any dangerous part of the machinery is beyond the reach of the man working it there would be necessity to fence it. The roller drum being at a height of 9 feet from the ground and there being no platform, by its own position it would not require any fencing. By its position and construction it has been made safe. It appears from the inspection report and evidence of P.W. 1 that Y. Nag along with the operator G N. Rao and the Supervisor P.K. Patnaik were working at the rag plant during the period in question. P.W. 1 has not cared to verify the different charts of the workers. He has not examined Y, Nag. It is not known whether at the direction of the operator or the Supervisor or without their knowledge Y. Nap climbed up the structure and approached the roller drum to clean it. It is the positive case of the respondents that the job of Y. Nag was to clean the cotton linters falling on the ground and not to handle the machine. P.W. 1 admits that it might be that G.N. Rao was to clean the space in question and that he was trained for it. He also admits that the duty of Y. Nag was to collect the thrown out rags from the conveyor belt within the safe zone.
6. From the aforesaid discussion of law and evidence my conclusion, therefore, is that the six inches space between the motor and the drum is not a part of the machinery since there is no substantial probability that accident will over result from the use of the machinery in view of the fact that the space is meant to be cleaned by a stick and not by human hand. The possibility, there fore, of a human hand coming in contact with that part of the machinery while doing normal work is almost nil. Since danger cannot reasonably be anticipated, the space in question being at a height of 9 feet from the floor, the machine cannot be said to be dangerous.
7. In the result, therefore, in agreement with conclusion of the trial Court I held that the prosecution has not been able to prove its case. Accordingly, I do not find any merit ii> this appeal which is dismissed.