Delhi District Court
State vs . : B N Nagpal & Ors. on 7 January, 2023
IN THE COURT OF MS. KRATIKA CHATURVEDI:
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : B N Nagpal & Ors.
FIR No : 130/2011
U/s : 336/34 IPC
P.S. : Dwarka South
Unique case ID : DLSW020009712012
1. Date of commission of offence :01.05.2011
2. Date of institution of the case :20.01.2012
3. Name of the complainant :Sh. Sunil Kumar Verma
Sh. C. N. Sharma
4. Name of accused, parentage &
address :(i) Sh. B N Nagpal,
R/o B-911, Nav Nirman
Apartment, Plot no. 6,
Sector 2, Dwarka, New
Delhi.
(ii)Col. H K Lakhera,
R/o 197, Type V, Sector
5, R K Puram, New
Delhi.
(iii)Dr. Kalpana Barua,
R/o Flat No. A-210, Nav
Nirman Apartment, Plot
No. 6, Sector 2, Dwarka,
New Delhi.
(iv)Raghu Sudan,
FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 1 of 27
R/o Flat No. A-710, Nav
Nirman Apartment, Plot
No. Sector 2, Dwarka, New
Delhi.
5. Offence complained of :336/34 IPC
6. Plea of the accused :Pleaded not guilty
7. Final order :Acquittal
8. Date of final order :07.01.2023
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr.Sanjeev Sahe, Ld counsel for accused
persons.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 01.05.2011 at 5:30 p.m. at Nav Nirman CGHS Ltd., Plot no. 6, Sector-2, Dwarka, New Delhi, a fire was caused at the society as the fire system was not in a working condition and due to the rash and negligent act of the members of the management committee of the said society who had the responsibility for keeping the fire-fighting system in a working condition had failed to maintained the same. As such, it is alleged that the accused persons, Sh.
B.N. Nagpal, Sh. Raghu Sudan, Col. H.K. Lakhera and Dr. Kalpana Barua, being the members of the management committee had committed the offence punishable under section 336/34 of the Indian Penal Code (hereinafter referred to as "IPC"), for which FIR no. 130/11 was registered at the Police Station, Dwarka South.
FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 2 of 27INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigation Officer (hereinafter referred to as the "IO") undertook investigation and on culmination of the same, the chargesheet was filed against the aforementioned accused persons. After taking cognizance of the offence, the accused persons Sh. B N Nagpal, Sh. Raghu Sudan, Col. H.K. Lakhera and Dr. Kalpana Barua were summoned to face trial vide order dated 28.04.2012.
3. On appearance of the accused, a copy of chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). After finding a prima facie case against the accused persons, notice for offence under section 336/34 of the IPC was framed against the accused persons on 23.02.2013. The accused persons pleaded not guilty to the aforesaid charge and claimed trial.
PROSECUTION EVIDENCE:
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sh. Malay Chakrabarty PW-2 HC Sunder Sehrawat PW-3 Sh. S.P. Bharadwarj PW-4 HC Rakesh PW-5 W/SI Suman PW-6 Sh. C.N. Sharma PW-7 Sh. Sunil Kumar PW-8 Si Dinesh Kumar FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 3 of 27 PW-9 Sh. Udaiveer Singh PW-10 Sh. Karamjit Singh, Deputy Director Planning, Building section, DDA PW-11 Sh. P.S. Dahiya (Retd. as ADO) PW-12 Retd. Inspector Ghasi Ram DOCUMENTARY EVIDENCE Ex. PW-1/A Photographs of the spot Ex. PW-5/A Copy of FIR Ex. PW-5/B Endorsement on rukka Ex. PW-6/A Personal search memo Ex. PW-6/B Site plan Ex. PW-7/B Receipt no. 264 for Rs.45,000/- Ex. PW-7/C Receipt no. 165 for Rs.35,000/- Ex. PW-8/A Copy of DD no. 50B Ex. PW-9/A NOC dated 25.01.2005 (OSR) Ex. PW-9/B Copy of fire report Ex. PW-9/C Copy of inspection report (OSR) Mark PW-9/1 Copy of Delhi Fire Service Act, 2007 and Delhi Fire Service Rules, 2010 Ex. PW- 9/D Show cause notice issued to President of Nav (OSR) Nirman Society Ex. PW- 9/E Copy of reply to show cause notice (OSR) Ex. PW- 9/F Copy of compliance report (OSR) Ex. PW- 9/G Copy of show cause notice dated 21.02.2013 (OSR) Ex. PW- 9/H Copy of compliance report (OSR) Ex. PW- 9/I Letter issued by Delhi Fire Service regarding (OSR) compliance Mark PW- Complaint regarding non-operational fire 9/2 protection system Ex. PW- 9/J Letter dated 27.12.2016 Ex. PW10/A NOC for PPC/OC (provisional) (OSR) Mark X1 Seized documents (colly) FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 4 of 27 Ex. PA1 True copy of DD No. 30A Ex. PA2 Photographs Ex. PA3 Documents alongwith the complaint
5. PW-1, Sh. Malay Chakravarty, has deposed that he was residing in the Nav Nirman Apartment since 15.08.2010. He has deposed that in May, 2011 at about 5.30 to 6.30 PM, he was going with his family then he suddenly saw the fire in the parking of 4th block and it was increasing very rapidly. Thereafter, he immediately spoke to the accused B N Nagpal and told him that his car is about to catch fire and subsequently, he called 100 number. He further deposed that many people from the society gathered there and tried to douse the fire with the help of buckets and pipes from their bathroom. Thereafter, the fire brigade came and doused the fire. In his cross- examination, he has stated that he never met the police officials to record his statement and never spoke to them on 24.05.2011. He further stated that he never told the IO that he was living in the society in this flat for the last five years i.e., 24.05.2011 as the allotment of the flat took in May, 2009. He further stated that on 01.05.2011 members of the society had passed a resolution to contribute Rs.5,000/- towards installation of new fire-fighting system and there was fire-fighting system installed in the society and that the fire-fighting system was upgraded. He further stated when the flat was allotted, all the members had passed a resolution dated 17.05.2009 whereby they had FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 5 of 27 agreed to take the allotment on as it where is basis. He also stated that Sh. C. N. Sharma and Sh. Sunil Verma were not paying the maintenance charges. He further stated that he had not made any allegations against the accused persons. In re-examination by Ld. APP for the State, he has deposed that police did not come immediately when he called 100 number. He also stated that the fire extinguishing system was not upgraded as the upgradation could not be done for the last 4-5 years before allotment as there was no one in the society. He further stated that the fire took place in the society due to non-upgradation of the fire extinguishing system (however, the same has been objected to by the Ld counsel for the accused persons on the point the same does not pertain to statement u/s 161 Cr PC of the witness). In his cross examination by Ld. counsel for accused, he stated that accused persons had taken all the steps for the upgradation of the fire extinguishing system before the fire took place and he cannot tell the reason due to which the fire was caused. He further stated that the upgradation of the system, the resolution has been passed by all the members of the society and not merely by the management.
6. PW-2 HC Sunder Sehrawat, has deposed that on 01.05.2011 he was working as Incharge at Fire Station, Sector 6, Dwarka. At about 3.49 PM, they received the call through Fire Control Room, CP that Nav Nirman Society Sector 2, Plot No. 6 A, Dwarka have met with fire.
FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 6 of 27Thereafter, he along with the staff and fire brigade vehicle reached at the spot where he found that in the ground floor i.e., parking, some wooden /iron boxes were lying there and there was burning due to the fire. He further stated that few society members were trying to control the fire and he parked his water tanker 44 and controlled the fire with the help of water. After controlling the fire, they came at the fire station where IO recorded their statements. The witness has correctly identified the photographs of the spot at the time of incident. In his cross-examination by the Ld. Counsel for the accused, he has deposed that he does not have the copy of statement given to the IO and that he did not carry out any investigation at the site of the fire as his only duty was to control the fire. He has stated that he does not have any personal knowledge with regard to the allegations made in the present case and that he cannot recognize the accused persons by their name.
7. PW-3 Sh. S P Bhardwaj, has deposed that on 01.05.2011 he was performing his duty in Fire control room and on that day, he received an information at 3.49 PM regarding the fire at Plot No. 6 A, Sector 2, Dwarka, Nav Nirman Society. The witness has correctly identified the photographs of the tractor tanker. Thereafter, PW2 had already extinguished the fire at the said spot. When they reached at the spot, PW2 was already present there and was trying to control the fire. Some boxes were lying on the ground floor and they were burning and they tried to FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 7 of 27 control the fire with the help of fire tender. In his cross- examination, he has stated that every time they get a call with regard to any fire emergency and a report is submitted to fire control room. In the present case, a report was made. He has also stated that after preparation of report, the same is uploaded on the official website on Delhi Fire services. He also stated that he had nowhere in the evidence he had attributed that the said FIR was caused due to the negligence of the accused and that he cannot comment whether the fire took place due to the negligence of the accused or not as same is not the part of their duty.
8. PW-4, HC Rakesh has deposed that on 24.05.2011, DO had handed over rukka and FIR to him and thereafter, he went to the Sector 2, Dwarka, Nav Nirman Society where he handed over the same to SI Ghasi Ram.
9. PW-5 WSI Suman, (DO) has deposed that on 24.05.2011 her duty hours were from 8.00 AM to 4.00 PM. At about 12.00 noon SI Ghasi Ram gave one rukka for registration of FIR for which FIR No. 130/11 was registered vide Ex.PW5/A. Thereafter, he made the endorsement on original rukka and handed over the copy of FIR and original complaint to PW4 to be handed over to SI Ghasi Ram.
10.PW-6 Sh. C. N. Sharma has deposed that Nav Nirman CGHS was drawn on 06.05.2009 and after draw, Sh. Raghu Sudan, the then Vice President of the management committee demanded Rs. 50,000/- for maintenance of the FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 8 of 27 society from all the members of the society. They paid that money to the society and started living from 15.08.2009. The fire system of the society was not operating till date and he was asking for possession certificate from the President, however, he told him that they had got the NOC from the fire system and hence, they cannot give him the possession certificate. After some time, they issued the possession certificate but the fire system was not operating. He further deposed that on 01.05.2011, in Block No. 4 i.e., car parking area at about 6.40 PM, a major fire had occurred there. The parking area was fully loaded with the wooden blocks for more than 6 months prior to the incident and at that time also the fire system was not working. Some people were trying to control the fire by throwing water through bucket. Thereafter, somebody informed the fire brigade which came after ½ hour to 1 hour. After midnight, the management committee went to the door to door for demanding money Rs.5,000/-. He deposed that the incident had occurred due to negligence of the accused members which are the members of the management committee i.e., the then Vice President B N Nagpal, Secretary H K Lakhera, the then Treasurer Dr Kalpana Barua and the then member Raghu Sudan, who had been correctly identified by the witness. Witness has also correctly identified the photographs. He gave a written complaint to the police who prepared the site plan at his instance. He also deposed that day by day they FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 9 of 27 started repairing the fire system and demolished the fire well and when the management committee came to his floor, he did not let them do the same and got a stay from the court on that. In his cross-examination, he has deposed that he lost the elections in the year 2010 and he has refused to answer the question put up by the opposite counsel that whether his candidature for the post of Vice President was rejected by the returning officer for the election held on 17.03.2013 and that whether he had lodged a complaint against the society by making allegation of misappropriate and siphoning of funds and that the case titled as "C.N. Sharma v. Nav Nirman CGHS Ltd." , civil suit bearing no. 157/12 for injuncting the society from carrying out repairs work w.r.t. fire-fighting system was dismissed by the Civil Court. The witness was also confronted by the complaint made by him vide Mark- A with the police regarding the allegations against the society members harassing him and his family and the same was found to be false and baseless vide report dated 27.04.2012. He has further stated that Delhi Fire Services vide its letter dated 25.01.2005, has issued a NOC w.r.t. fire safety system which was installed in the society. He has stated that he was not part of the resolution passed by the Management Committee that Rs.5,000/- be collected from every flat for the purpose of upgradation of fire system and that the said resolution was passed after the incident. The witness was also confronted with the FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 10 of 27 unattested photocopy of the NOC dated 25.01.2005 given by the Govt. of GNCT of Delhi HQ obtained in a reply to RTI alongwith RTI reply dated 03.11.2015 by GNCT, DFS vide Mark 1. He has also stated that he had not taken any action against the previous management committee. He had also stated that he cannot say that the fire had occurred in the wooden boxes, belonged to Sanyukta Prausthi, Flat no. A-312 and that he never complained against Sanyukta for keeping the boxes in stilt parking.
11.PW-7, Sh. Sunil Kumar Verma, has deposed that after first draw of plot, first fire was burnt and he gave a written complaint dated 13.09.2010 to Chief Fire Officer. He has further deposed that on 01.05.2011, in the block 4, i.e., the car parking area, at about 6:40 p.m., a major fire was occurred there. The parking area was fully loaded with the wooden blocks and vehicles, cars and two wheelers for more than 6 months prior to the incident. After the draw of plots, the fire system was not working. At that time, he was present at his floor and after he came downstairs, he called 100 number. He alongwith other people were trying to control the fire by throwing water through bucket in that. He also informed the fire brigade. After about 1½-2 hours, fire brigade controlled the fire. Then the police came at the spot. He further deposed that due to aforesaid fire, ground floor of B Type area in 4th floor block totally damaged and plaster was broken and flat no. B-111 and B-211 were also damaged from the smoke of fire and one two-wheeler was FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 11 of 27 damaged. He deposed that after midnight, the management committee went to the residence door to door for demanding money of Rs.5000/-. He has deposed that the incident occurred due to the negligence of Management Committee as they did not get the fire system operated despite many complaints and three-four such incidents prior to the incident in question. The witness had correctly identified all the accused persons. He gave a written complaint to the police and thereafter, about 10-15 people including accused came to him and threatened him and asked to vacate the said flat in the society premises. One show cause notice was also given to the president of the society. Photographs of the spot have been correctly identified by the witness. In his cross-examination, he has deposed that he is a lawyer by profession. He deposed that he had paid Rs.5,000/- in view of resolution dated 01.05.2011 vide Ex.PW7/D1 for the upgradation of fire- fighting system, however, the said resolution is arbitrary and illegal as the quorum of the management committee was not complete. He has stated that fire-fighting system, house pipe over a fire tank, fire alarm system, fire motor in their society was not upgraded on that day. He also admitted that as per Delhi Fire Guidelines, the department is of the opinion that providing the fire-fighting system does not guarantee that there will be no fire. However, he has stated that in the provisional occupancy certificate issued by DDA clearly mentions that in any mishappening FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 12 of 27 like fire, the management committee is responsible for this as also stated by PW-10. Sh. Karmjit Singh. He has stated that allotment of flats of the said society could not take place between 2004 and 2009 because cases were pending in the High Court under section 24(2) of DCS Act and Rules. He has stated that he does not know whether several systems of society including electric, water became defective due to passage of time and does not know whether on 17.05.2019 and extraordinary GBM was called where all the members agreed that the allotment of flats can take place as is and where basis. He had denied the suggestion that any civil suit was filed alongwith CN Sharma for restraining the management committee from installing the fire-fighting system. He stated that the fire well L Type wall installed in each floor, then the management committee had demolished this fire well and that they had filed a civil suit to restrain the committee from demolishing the same, however he does not know about the status of that case.
12.PW-8, SI Dinesh Kumar, has deposed that on 01.05.2011, after receiving DD No. 30A, he alongwith Ct. Rajesh went to the spot where many people had gathered there and staff of fire brigade was also there. He asked Mrs. Sanyukta Paruthi as to whose articles were burnt in the fire and other persons but nobody was ready to give any statement. In his cross-examination, he has stated that Smt. Sanyukta Paruthi in her statement has stated that the fire was an FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 13 of 27 accidental fire and that she had no complaint against anyone. He also stated that he found out that the fire was not caused due to the fault of any of the accused persons and that is the reason DD no. 50A was closed.
13.PW-9, Udaiveer Singh, Asst. Divisional Officer, Delhi Fire Service, Wazirpur Fire Station, New Delhi has deposed that he has placed on record the NOC issued on 25.01.2005 and copy of the fire report of the incident. In his cross-examination, he has stated that the category of fire was mentioned as small and as per office record, there was no loss of any human life in the incident. The fire department had not conducted any survey regarding the loss of article, property, etc. because of the incident in question and that there is no such record.
14.PW-10, Sh. Karamjit Singh, Deputy Director Planning, Building Section, DDA has placed on record the orginal NOC for Permanent Power Connection/Occupancy Certificate (Provisional) which was issued from his office. In his cross-examination, he has stated that from his records, he can state that there is clearance from CFO, Delhi Fire Services vide letter dated 25.01.2005.
15.PW-11, Sh. P.S. Dahiya (Rtd. as ADO), has deposed that on 03.12.11, he visited the said society and during the course of inspection, he found some shortcomings which were communicated to the President of the society. In his cross-examination, he has stated that since the fire- fighting system was installed in a good working condition FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 14 of 27 in the society so an NOC was issued by Delhi Fire Service. He has also stated that as per his inspection report vide Ex.9/C, fire extinguishers were provided in the society.
16.PW-12, Retd. Inspector Ghasi Ram, has deposed that on 08.05.2011, he received a complaint alongwith certain documents and photographs from Chhidanand Sharma and Sunil Verma that on 01.05.2011, fire broke out in the building in question. He registered a FIR on 24.05.2011 and made an endorsement on the complaint and prepared the site plan. On 3.12.2011, the team of fire brigade physically inspected the fire system installed at the Navnirman society and seized the list of the management committee. He prepared the true copy of DD No. 30Aand DD No.50B. In his cross-examination, he has stated that he has not placed on record any notice under section 160 CrPC or section 91 CrPC which was served upon the complainant or any other witness. He stated that he had not recorded the statement of the persons whose articles were burnt in the said fire. He stated that he did not find any burnt articles at the site of the alleged incident. He further stated that he made the DD entry no.50A regarding the statement of SI Dinesh Kumar that no doubt was raised by any person and that nobody was found involved in the matter and no action was needed was made the part of the judicial file. He has stated that he had not checked whether all the fire extinguishers and other fire safety devices were installed in the society and that he has not seized any FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 15 of 27 photographs of the site incident and that he has not taken certificate under section 65B of the Evidence Act. He has stated that he had not enquired the reason for fire and that it was the first IO who had inquired about the same. He also stated that he made only those accused persons whose names were given by the complainant.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
17.Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused persons were recorded on 26.11.2022 without oath under section 313 CrPC, wherein they stated that they are innocent and has falsely been implicated in the present case. They further stated that there was a retired army officer who had shifted in that building at Flat A312, who had kept some wooden empty boxes in the parking area and that there was no electrical point at the place where those wooden boxes were kept, however, it seemed that someone threw a matchstick which caused fire. The fire was very small and it was doused by the members of the society even before the fire tender reached at the spot. All the members of the society including the accused persons were helping in dousing the fire and removing the car from the spot. The three accused out of the four are the resident of the same tower while Sunil Kumar and CN Sharma were clicking photographs FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 16 of 27 and created obstructions. They further stated that these two persons had lost elections against them and hence they had a political/personal vendetta against them. They had also lodged several complaints including u/s 70 DCS Act before the RCS and same was dismissed and an appeal against the same was also dismissed. When they took over the management of the society and tried to install the fire extinguisher, they filed the injunction suit which was also dismissed. They were persistent defaulter and did not pay maintenance to the society and had lodged a false complaint, despite the fact that the IO reached at the spot soon after the fire and had given a closure report after inquiry. Pursuant thereto, they stated that they does not wish to lead defence evidence.
18.However, the accused had relied upon the following documents while confronting the prosecution witnesses, i.e., Resolution dated 01.05.2011 vide Ex.PW1/D1, Resolution dated 17.05.2009 vide Ex.PW1/D2, Resolution dated 27.03.2011 vide Ex.PW1/D3, complaint regarding frivolous complaints vide Ex.PW-1/D4, copy of the complaint dated 16.03.2012 vide Mark A, Copy of the closure report vide Mark B, Resolution dated 04.12.2011 vide Mark PW-6/D2, Copy of order dated 01.02.2011 where case under section 70 DCS Act was dismissed vide Mark PW-6/D3, Complaint vide Mark PW-6/D4, No due certificate vide Mark PW-7/D2, Copy of order vide Ex.PW-7/X-1, copy of DD no. 50A vide Ex.PW8/D1 FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 17 of 27 ARGUMENTS
19. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
20. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
21. Per contra, the Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
22.The accused persons have been charged for the offences of committing an act endangering life or personal safety of others punishable under section 336 of the IPC. The FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 18 of 27 relevant section is reproduced as under, Section 336- Act endangering life or personal safety of others: "Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both."
23.Thus, the gravamen of the offence under Section 336 IPC is the act of the accused, done with "rashness" or "negligence" which endangers human life or personal safety of others. The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what the amount of care and circumspection is which a prudent and FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 19 of 27 reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
24.Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC
173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an 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 prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
25.Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 20 of 27 on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE
26.In the instant case, it is not in dispute that on 01.05.2011 at about 6:40 p.m., the fire had taken place in the car parking area of block 4 of Nav Nirman CGHS. However, the issue which arises for consideration in the instant case is that whether the fire could not be doused due to rash or negligent act of the accused persons, being the members of the management committee, and whether they were under the responsibility for keeping the fire system in a working condition and due to that, huge losses were caused to the building because of the said fire resulting into endangering the human life and personal safety of others. In order to prove the case of the prosecution, the State is firstly required to prove that due to the rash or negligent act of the accused persons, the fire-fighting system was not in a working condition and secondly that due to the same, huge losses were caused to the building due to the said fire endangering human life and personal safety of others.
FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 21 of 2727.The case of the prosecution hinges upon the testimonies of PW-6 and PW-7 that the incident had occurred due to the negligence of the management committee. They have deposed that at the time of the fire incident, the parking area was fully loaded with wooden boxes and when the fire arose, the fire system was not operated despite many complaints and three-four incidents prior to the incident in question. However, it has come on record that the wooden boxes belonged to Smt. Sanyukta Praushthi who had shifted to Flat No. A312 in the said society and had kept the empty boxes in the parking area. Also, no complaint has been made against her for keeping the said boxes in stilt parking. From the perusal of the testimonies of the prosecution witnesses, it is not clear as to how the said fire had taken place. Moreover, PW-1 has also deposed that he cannot tell as to how the fire had taken place. Thus, it is clear that the cause of the fire is still unknown. While the accused persons in their statement recorded under section 313 CrPC has stated that there was no electrical point at the place where wooden boxes were kept and that someone might have thrown matchstick and caused mischief by causing fire.
28.PW-1 in his re-examination has admitted that fire took place in the society due to non-upgradation of the fire extinguishing system while in his cross-examination has stated that there was a fire extinguishing system at the time of allotment of the flats in the society and that the accused FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 22 of 27 persons had taken all the steps for the upgradation of the fire extinguishing system before the fire took place and for the said upgradation, the resolution has to be passed by all the members of the said society and not merely the management. Thus, PW-1 has nowhere deposed the fire was caused due to the negligence or rashness act of the accused persons while has imposed the liability on all the members of the society for the upgradation of the fire- fighting system. Moreover, it has also come in the testimony of PW-7 that as per Delhi Fire Guidelines, the department is of the opinion that providing the fire- fighting system does not guarantee that there will be no fire. Further, PW-2 and PW-3 have also not deposed that the fire was caused due to the negligence or rash act of the accused persons. While PW-5 is the DO who has merely deposed about the registration of the FIR.
29.It is worthy to note that PW-8, SI Dinesh Kumar has deposed in his cross-examination that Ms. Sanyukta Paruthi had stated in her statement which was recorded by him that it was an accidental fire and that she had no complaint against anyone and that no fire was caused due to the fault of any of the accused persons and then the DD no. 50A was closed. Also, PW-9 has deposed that as per the fire incident report vide Ex.9/B, the category of the fire is mentioned as small. He has also deposed that there was no loss of any human life in the incident and that the fire department had not conducted any survey regarding the FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 23 of 27 loss of article, property because of the incident in question. PW-10, has also deposed that there is a clearance from CFO, Delhi Fire Services vide letter dated 25.01.2005. He also stated that there is no document which suggest that the fire safety system of Nav Nirman CGHS Ltd. was not working. PW-11 has also deposed that since the fire- fighting system was installed in a good working condition in the society so a NOC vide Ex.PW-9/A was issued by the Delhi Fire Service. He has also stated that as per the inspection report vide Ex.PW-9/C, fire extinguishers were provided in the society. It is pertinent to note that PW-7 in his testimony has stated that due to the fire, ground floor of B Type area in 4th block was totally damaged from the smoke of the fire and one two-wheeler was totally damaged. However, PW-12 being the IO in the instant case has stated that he had not found any burnt articles at the site of the alleged incident. Also, it has come on record that the IO had not checked all the fire extinguisher and other fire safety devices which were installed in the society and that he has not seized any photographs of the site incident. Further, no certificate under section 65B of the Evidence Act has been placed on record with the photographs which have been provided with the complaint. In light of the judgment of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal 2020 7 SCC 1, the photographs of the spot in the absence of certificate under section 65B of the Evidence Act is FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 24 of 27 inadmissible. He has also stated that no one has made any complaint regarding the alleged personal losses or injury etc.
30.It is also pertinent to note from the testimonies of PW-6 and PW-7 that multiple complaints have been filed by them including complaint under section 70 DCS Act before the RCS which was dismissed and thereafter the appeal was also dismissed against the said accused persons and that PW-6 and PW-7 had lost elections in the year 2010 against the accused persons, so the possibility of political or personal vendetta against the accused persons cannot be ruled out in the absence of any other incriminating evidences against the accused persons. It has also come on record from the testimonies of the prosecution witnesses that PW-6 and PW-7 had filed a civil suit for bearing No. 157/12 titled as CN Sharma v. Nav Nirman CGHS interalia praying that the society be injuncted from carrying out the repair works with regard to the fire-fighting system which shows the animosity between the complainant and the accused persons. The Ld. Counsel for the accused persons argued that the complainant had filed the complaint only against the 4 members out of 7 members against whom he and his group had lost the election which clearly shows the motive for filing the instant complaint.
31.The prosecution has firstly failed to prove that the fire was FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 25 of 27 caused by the accused persons and that the accused persons had failed to take necessary steps for installation of the fire-fighting system at the spot. It has come from the testimonies of the other independent prosecution witnesses that the fire-fighting system was installed at the society and the same was also upgraded and that is the reason, a NOC was issued by Delhi Fire Service. The prosecution has secondly failed to prove that the act of the accused persons had endangered any human life or personal safety of others as evident from the testimonies and documentary evidence on record.
CONCLUSION
32.It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
33.To recapitulate the above discussion, to bring home the guilt of the accused persons, the prosecution was required to prove the ingredients of the offence punishable under FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 26 of 27 section 336/34 of IPC beyond reasonable doubt. The prosecution has failed to prove that fire was caused due to the rash or negligent act of the accused persons. There is no evidence to link the accused persons with the crime charged against them.
34.Resultantly, the accused persons, Sh. B.N. Nagpal, Sh. Raghu Sudan, Col. H.K. Lakhera and Dr. Kalpana Barua are hereby found not guilty and are hereby acquitted of the offence under Section 336/34 of IPC.
Announced in the open court on 07.01.2023 in the presence of the accused persons.
(Kratika Chaturvedi) Metropolitan Magistrate-04, Dwarka, Delhi/07.01.2023 Note:- This judgment contains 27 pages and each page has been signed by me.
FIR No. 130/2011, P.S. Dwarka South State vs. B.N Nagpal & Ors. Page 27 of 27