Delhi District Court
State vs . Bijender Singh Chima on 11 April, 2019
IN THE COURT OF SH. VIRENDER SINGH: METROPOLITAN
MAGISTRATE-07 : NORTH WEST DISTRICT:ROHINI COURT:
DELHI
STATE Vs. Bijender Singh Chima
FIR No. 761/07
P.S. Rohini
Date of institution of case : 25.05.2008
Date on which case reserved
for judgment : 10.04.2019
Date of judgment : 11.04.2019
JUDGMENT :
a) Date of offence : 07.08.2007 b) Offence under Sections : 288/304-A IPC c) Name of complainant : Sh. Sanjeev Chauhan S/o Sh. Prabhu Chauhan d) Name of accused, his parentage, : Bijender Singh Chima S/o Sh. Fouza Singh R/o B-578, Raghubir Nagar, PS Rajouri Garden, New Delhi. e) Plea of accused person : Pleaded not guilty. f) Final order : Acquitted.
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
Vide this judgment, this Court shall decide the present FIR No. 761/07 State Vs. Bijender Singh Chima 1/8 PS Rohini case instituted on the charge-sheet filed on 25.05.2008 in the present FIR No. 761/07 of PS the then Rohini u/s 288/304-A IPC against accused Bijender Singh Chima.
1. Brief facts of the case are that on 07.08.2007 at about 10:00 am the complainant and deceased Lal Babu Chauhan and some other workers were doing the work of fitting AC through welding machine. The contractor is Bijender Singh Chima under whose supervision the work was being done. The complainant and other 5/6 workers were doing work on one floor, the deceased was doing work while standing on an iron stand of about 6 feet height. The complainant and other workers used to ask the contractor Bijender Singh Chima to provide plastic or wooden ladder at the place of iron ladder. On 07.08.2007 also the deceased made similar request to the contractor and he also requested that while doing electric work he should be provided with big plastic shoes and rubber gloves but the contractor told him that the work has to be done in the similar manner and otherwise he need not to come for work from tomorrow onwards. Thereafter the deceased went on and started the work of fitting AC with welding machine and then suddenly he got electrocuted and he fallen down. He became unconscious and thereafter he was fetched to Jaipur Golden Hospital where he was declared dead. Thereafter the FIR was registered. Investigation was concluded and final report was filed u/s 288/304-A IPC.
2. The cognizance was taken and the accused was FIR No. 761/07 State Vs. Bijender Singh Chima 2/8 PS Rohini summoned. Chargesheet was supplied to the accused. Notice for offence u/s 288/304-A IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. The prosecution examined six witnesses. They were duly cross examined by Ld. defence counsel. The PW Narayan Chauhan and HC Chattarpal Singh were dropped. The MLC No. 8378/07 was admitted and therefore PW Dr. Pradeep Dua was also not examined.
4. The PW1 i.e. the complainant has proved his statement as Ex.PW1/1. The PW2 has proved the post mortem report as Ex.PW2/A. The PW3 ASI Pawan Kumar has proved arrest memo and personal search memo of accused as Ex.PW3/A and Ex.PW3/B. PW4 has proved the purchase / work order as Ex.PW4/A. PW5 has proved dead body identification memo and receiving memo of dead body as Ex.PW5/A and Ex.PW5/B. The IO has proved the investigation done by him and the documents Ex.PW6/A to Ex.PW6/C (copy of DD No. 16A, rukka and site plan), Ex.X7, Ex. PW1/1, Ex.PW1/2A, Ex.PW5/A to Ex.PW5/B and Ex.PW3/A to Ex.PW3/B.
5. The prosecution evidence was closed. The accused was examined u/s 313 CrPC by putting all incriminating evidence to him to which he pleaded his innocence. He did not produce any defence evidence.
FIR No. 761/07 State Vs. Bijender Singh Chima 3/8 PS Rohini
6. The Ld. APP and Ld. Defence counsel have argued the matter at length.
7. I have considered the submissions of both parties and gone through the judicial file.
8. The definition of offence u/s 288 IPC is as follows:-
"Negligent conduct with respect to pulling down or repairing buildings - Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof shall be punished with imprisonment of either description for a term which may extend six months, or with fine which may extend to one thousand rupees, or with both".
9. The definition of offence u/s 304A IPC is as under :-
" whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both".
FIR No. 761/07 State Vs. Bijender Singh Chima 4/8 PS Rohini Thus to prove the offence under section 288 IPC and 304-A IPC the prosecution has to prove that the accused knowingly or negligently omits to take such order with the building as is sufficient to guard against any probable danger to human life from the fall of that building or any part thereof and further that the accused committed culpable homicide not amounting to murder respectively.
APPRECIATION OF EVIDENCE
10. As per the case of the prosecution, the witness Sanjeev Chauhan is star witness. He has deposed as PW1. Though he deposed on the lines of prosecution but in addition to that he deposed in his cross examination that the deceased was working on the third floor and he was working on 2 nd Floor. He has further deposed that on the day of incident he reached at the spot as he was told by helper Bhoolan that Lal Babu Chauhan had suffered electric shock by welding machine and he also deposed that the entire incident was explained to him by Bhoolan, who was brother of deceased. Thus during trial it is revealed that the witness Sanjeev Chauhan is not an eye witness and the incident did not occur before him.
11. PW3 ASI Pawan Kumar has deposed that he alongwith IO / SI Jagdish went to Jaipur Golden hospital where the deceased was declared brought dead. No eye witness was found at the spot. The IO / SI Jagdish also deposed that no eye witness was found at Jaipur Golden Hospital. However, as per the version of the FIR No. 761/07 State Vs. Bijender Singh Chima 5/8 PS Rohini prosecution, the complainant Sanjeev Chauhan was working with the deceased at the spot. Witness Sanjeev Chauhan has also deposed that police officials took him to the police station and Bhoolan remained with the dead body. Thus, if the incident was witnessed by the complainant Sanjeev Chauhan or by Bhoolan, then as per the evidence of Sanjeev Chauhan, he and Bhoolan were available in police station and hospital respectively. Thus, the statements of witnesses Sanjeev Chauhan and Bhoolan could be recorded on the same day, however, the statement of complainant Sanjeev Chauhan was recorded only on 08.08.2007 and the incident took place on 07.08.07 in morning. Further, the police officials have not even recorded statement of witness Bhoolan who as per the version of PW Sanjeev Chauhan is eye witness of the incidence. These facts raised serious doubts on the version of the prosecution as well as on evidence of PW Sanjeev Chauhan.
12. As per the case of the prosecution the deceased was working on iron ladder with welding machine but during entire investigation of the matter no iron ladder or welding machine has been seized by the police. Therefore, prosecution has failed to prove that any iron ladder or welding machine was used by the deceased or that while using the same he was electrocuted.
13. As per the version of the complainant Sanjeev Chauhan, Bhoolan is brother of the deceased. If he was available on the spot or he had gone from spot due to any reason, then the police FIR No. 761/07 State Vs. Bijender Singh Chima 6/8 PS Rohini officials could record his statement lateron but as per record he was never examined by the IO during the investigation.
14. Further, the complainant Sanjeev Chauhan has specifically deposed at one place that he was not present at the spot and at another place he deposed that accused himself took them to the spot. At another place in his evidence he admitted that accused did not allot the work to them on the day of incident. Thus the witness Sanjeev Chauhan has deposed contradictory facts during his examination, therefore, he is not reliable witness.
15. PW4 Naresh Kumar Bhola has only proved purchase / work order given by their company to accused in respect of premises where the incident took place. But this fact does not prove beyond reasonable doubts that death of deceased took place only due to negligent act of the accused, specifically in view of the fact that the complainant has deposed that the work on the day of incident was not allotted to them by the accused.
16. PW3 ASI Pawan Kumar has inter aila deposed that he did not visit the spot of incident, however, as per the evidence of the IO he visited the spot with him. Thus, even the police officials have not corroborated their evidence with each other. PW5 Nand Lal Chauhan is only formal witness who identified dead body of deceased. Thus, he does not have any knowledge that due to whose negligence deceased expired. PW6 is the IO of the case. He has proved the investigation done by him. He is also only a formal FIR No. 761/07 State Vs. Bijender Singh Chima 7/8 PS Rohini witness and he also did not witness the incident.
17. In view of the aforesaid considerations, appreciation of evidence and discussions, the prosecution has failed to prove beyond reasonable doubts offences u/s 288/304-A IPC against the accused. Therefore, the accused Bijender Singh Chima is acquitted for offences u/s 288/304-A IPC.
Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2019.04.11 17:54:28 +0530 ANNOUNCED IN THE OPEN (VIRENDER SINGH) COURT ON 11.04.2019. MM-07(NW), Rohini Courts, DELHI. FIR No. 761/07 State Vs. Bijender Singh Chima 8/8 PS Rohini