Delhi District Court
State vs . Rahul Aggarwal, Fir No. 329/08, Ps : ... on 3 December, 2013
STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV, (DISTRICT NORTH), ROHINI COURTS, DELHI. FIR NO. 329/08 PS: MODEL TOWN U/S: 288/304A IPC STATE VS. RAHUL AGGARWAL JUDGMENT
A. SL. NO. OF THE CASE : 67/09/08
B. COMPUTER ID. NO. : 02404R012193009
B. DATE OF OFFENCE : 02.10.2008
C. DATE OF INSTITUTION : 25.04.2009
D. NAME OF THE COMPLAINANT : Sh. Dharmender Kumar Mandal
S/o Sh. Rajender Mandal
E. NAME OF THE ACCUSED : Rahul Aggarwal
S/o Sh. Ram Bilas
F. OFFENCE COMPLAINED OF : U/s 288/304A IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquitted.
I. DATE OF SUCH ORDER : 03/12/2013
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from the chargesheet are that on 02.10.2008 at H.No. 159, SBI colony, Delhi, the accused, being the contractor, was renovating the said house belonging to Sh. P.C. Malik through his labourers. However, he did not provide sufficient safe guard to demolish/renovate the wall of the kitchen of the said house and due to the above said negligent omission of the accused, the said kitchen wall abruptly fell on the said date at 12:15 pm. One labour namely Sh. Ashok Kumar Singh S/o Sh. Naresh Page no. 1/5 STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
Mandal was trapped under the bricks/rubble of the said demolished wall of the kitchen and due to said impact he sustained fatal injuries. On the basis of the complaint of Sh. Dharmender Kumar, the present FIR u/s 288/304A IPC was lodged at PS Model Town. On conclusion of investigation, the challan under the aforesaid sections was filed against the accused.
2. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to the accused Rahul Aggarwal. Prima facie charge U/s. 288/304A IPC was made out against the accused. Accordingly, on 08.06.2010, the charge was framed by the predecessor of this court. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In the instant case, the prosecution has examined only two witnesses for substantiating its case.
4. HC Suraj (PW1) has deposed that on 02.10.2008 he was posted at PS Model Town as DO. He has further deposed that on that day on receipt of rukka from Ct. Sri Bhagwan, he registered the present FIR no. 329/08, U/s 288/304A IPC. He has proved the copy of this FIR as Ex. PW1/A and endorsement made on the rukka as Ex. PW1/B.
5. Sh. Dharmender Kumar (PW2) wrongly numbered as PW1 is the eyewitness and the complainant. He has deposed that on 01.10.2008, he alongwith his neighbour namely Ashok were working at the house bearing no. 159, SBI colony, Model Town, Delhi of Sh. Prakash Chand Malik. He has further deposed that on that day they were doing renovation work under the supervision of mason. He has further testified that he met accused Rahul Aggarwal once only. He has further deposed that the mason present at the site asked Ashok to demolish the wall of kitchen. He has further deposed that Ashok started demolishing the wall and suddenly the wall fell down on Ashok and some bricks fell over his head, due to which he sustained injuries. He has further testified that he pulled him out and informed the owner of the house and they took him to Sunder Lal Jain Hospital. He has further testified that someone called at 100 number and police arrived and recorded Page no. 2/5 STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
his statement. He has further deposed that IO prepared site plan at his instance. He has proved the dead body receiving memo as Ex. PW1/B. The said witness was resiling from his earlier statement, therefore, he was cross examined by the Ld. APP for the state after seeking permission from the court. But despite that, nothing incriminating against the accused could be extracted from the said witness as he persisted that accused Rahul Aggarwal is not responsible for the said incident of the collapse of the Kitchen wall.
6. In the instant case, the complainant Sh. Dharmender Kumar Mandal (PW2) and Sh. P.C. Malik are the only alleged eyewitnesses of the incident, who were likely to give incriminating evidence against the accused. Sh. P.C. Malik had expired before he could appear in the court for his deposition. The other eyewitness i.e. PW2 Sh. Dharmender Kumar Mandal has deposed nothing incriminating against the accused, even though he was cross examined by the Ld. APP for the state. The remaining witnesses are either police officials or formal witnesses, who are admittedly not the eye witness to the incident and thus, their testimonies were not likely to substantiate the culpability of the accused. Therefore, no fruitful purpose would have been served by examining the said remaining witnesses. Hence, PE was closed.
7. Statement of the accused u/s 313/281 Cr.P.C. was separately recorded. He has submitted that he is innocent and he was not negligent in providing the safeguard to demolish the wall of the kitchen. He preferred not to lead evidence in defense. Thereafter, the matter proceeded for final arguments.
8. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have carefully perused the case file.
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
10. In order to prove the guilt of the accused the prosecution Page no. 3/5 STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
is required to prove the following ingredients as mentioned U/s 288/304A IPC:
(i) The accused was pulling down or repairing the building;
(ii) The accused omitted to take such order with that building as was sufficient to guard against probable danger to human life from the fall of the building or any part thereof;
(iii) The omission complained of was due to negligence or with the knowledge of such probable danger; and
(iv) Death of a person was caused on account of aforesaid culpable omission /negligence of the accused.
11. In the present case, the prosecution has examined only one alleged eyewitness to the incident i.e. the complainant Sh. Dharmender Kumar Mandal (PW2). However, he has not only failed to identify the accused to be the perpetrator of the present offence, but he has even failed to testify that the kitchen wall of the aforesaid house fell on account of negligence /omission of any person. He has not attributed the fall of the aforesaid kitchen wall to the fault of the accused. The said witness is vita/material/crucial witness for proving the prosecution version as the entire case of the prosecution is based upon the foundation laid down by the statement given by him. The nonsupporting testimony of the said witness has proved fatal to the prosecution case, as in absence of his indispensable testimony, the prosecution case cannot be substantiated. Therefore, the prosecution version has remained unproved.
12. If, for the sake of arguments, it is assumed to have been established that the deceased labourer Ashok Kumar sustained fatal injuries on account of fall of the kitchen wall of the aforesaid house, in that case also it cannot be inferred that the accused negligently failed / omitted to take appropriate precaution, unless the said mens rea i.e. guilty intention is proved by the prosecution beyond any reasonable doubt. The accused cannot be convicted on presumptions or surmises, rather, all the ingredients including rash or negligent act as mentioned U/s 288/304A IPC are required to be established. But in the instant case, the prosecution witnesses have not Page no. 4/5 STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
uttered even a single word against the accused regarding the alleged rash and negligent omission. The prosecution has also failed to lead any evidence to suggest the precaution, which the accused ought to have taken to prevent the fall of the kitchen wall in the alleged dangerous manner. Therefore, it cannot be held with certainty that the fall of the kitchen wall of the aforesaid house was merely an accident or it dangerously fell due to culpable omission on the part of the the accused.
The findings given by Hon'ble Apex Court in case titled as B.C. Ramachandra Vs. State of Karanataka, 2007 Cri. L.J 475. are relevant and reproduced as under:
"In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. The said ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur"
13. There is not even an iota of incriminating evidence against the accused to fix his liability U/s 288/304A IPC. The prosecution has failed to prove its case by leading convincing and cogent evidence and thus, it has failed to discharge the onus placed upon it. Hence, the accused is entitled to benefit of doubt.
14. In the light of the above discussion, the accused namely Rahul Aggarwal is acquitted for the offences punishable U/s 288/304A IPC. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bond and surety bond be extended for the next six months. The said request is allowed and they are accepted for next six months.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN COURT (DHEERAJ MOR) today i.e. 03.12.2013. METROPOLITAN MAGISTRATEIV (DISTRICT NORTH) ROHINI COURTS: DELHI Page no. 5/5 STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
Page no. 6/5STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
FIR NO. 329/08 PS: MODEL TOWN U/S: 288/304A IPC STATE VS. RAHUL AGGARWAL 03.12.2013 Present: Ld. APP for the State. Accused Rahul Aggarwal on bail with counsel. No PW is present.
In the instant case, the complainant Sh. Dharmender Kumar Mandal (PW2) and Sh. P.C. Malik are the only alleged eyewitnesses of the incident, who are likely to give incriminating evidence against the accused. Sh. P.C. Malik had expired before he could appear in the court for his deposition and his name was deleted from the list of witnesses on 11.11.2013. The other eyewitness i.e. PW2 Sh.
Dharmender Kumar Mandal has deposed nothing incriminating against the accused, even though he was cross examined by the Ld. APP for the state. The remaining witnesses are either police officials or formal witnesses, who are admittedly not the eyewitness to the incident and thus, their testimonies are not likely to substantiate the culpability of the accused. Therefore, no fruitful purpose will be served by examining the said remaining witnesses. Hence, PE is closed.
Statement of the accused u/s 313/281 Cr.P.C. is separately recorded.
He has submitted that he does not want to lead evidence in defence.
Final arguments heard. Case file is perused.
Page no. 7/5STATE VS. RAHUL AGGARWAL, FIR NO. 329/08, PS : MODEL TOWN, U/S : 288/304A IPC.
2 Vide separate judgment of even date, the accused namely Rahul Aggarwal is acquitted for the offence punishable U/s 288/304A IPC. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bond and surety bond be extended for the next six months. The said request is allowed and they are accepted for the next six months.
File be consigned to record room after due compliance.
(Dheeraj Mor) MMIV/North/Rohini/Delhi 03.12.2013 Page no. 8/5