Delhi District Court
State vs Ashok Kumar Malhotra on 24 March, 2025
IN THE COURT OF SH. NAVJEET BUDHIRAJA,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET, NEW DELHI
CNR NO. DLST01-005646-2018
Session Case No. 516 of 2018
In the matter of :
State
Versus
Ashok Kumar Malhotra
S/o Late Sh. M. L. Malhotra
R/o House No. 167, Western Avenue,
Sainik Farm, New Delhi.
FIR No. : 75/2018
Police Station : Neb Sarai
Under Section : 304-II/304A IPC, Section
3(1)(j) of the SC & ST
ACT and Section 9 of the
Prohibition of Employment
as Manual Scavengers and
their Rehabilitation Act,
2013
Date of Institution : 23.06.2018
Date of Committal : 21.08.2018
Reserved for Judgment : 24.03.2025
Date of decision : 24.03.2025
Decision : Acquitted
JUDGMENT
The vignette of the prosecution story is that on receipt of Daily Diary (DD) No. 28A dated 18.02.2018 regarding Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra 2025.03.24 Pg No. 1 of 15 17:29:23 +0530 death of one person by falling in septic tank, Sub Inspector (SI) Ranbir Singh along with Head Constable (HC) Harender reached at Kothi No. 167, Western Avenue, Sainik Farm, New Delhi where caller Manish met SI Ranbir and informed that his brother Munna (deceased) was inside the septic tank and his cousin brother Yogender was also with Munna and he had gone to inform the other relatives at Sangam Vihar. The owner of the mansion, Mr. A.K. Malhotra S/o Late Shri Malhotra was also present and SI Ranbir went inside the kothi and inspected the spot. On entering the kothi, there was a room about 50 meters to the right and there was a septic tank hatch below the room which was covered with an iron lid which allows movement into the septic tank. After removing the lid and looking inside the septic tank with the help of mobile light, a man was found unconscious and drowned in water. His name was revealed as Munna. Fire brigade also reached the spot within a short time. With the help of fire brigade, Munna was taken out of the safety tank. Meanwhile, on being informed by SI Ranbir, Mobile Crime Team, South District also reached the spot to inspect the spot of incident. SI Ranbir along with HC Harendra proceeded to AIIMS Hospital in a government gypsy where Munna was medically examined vide Medico Legal Case (MLC) No. 1437/2018 and he was declared brought dead by the doctor. SI Ranbir had preserved the dead body of deceased Munna in AIIMS Hospital Mortuary. After preserving the dead body, SI Ranbir along with HC Harendra came to Police Station.
2. After some time, complainant Yogendra S/o Ram Digitally SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra signed by Pg No. 2 of 15 NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.03.24 17:29:37 +0530 Kishan @ Makhan came to the Police Station and SI Ranbir Sahib recorded his statement wherein he stated that he did the work of collecting garbage and cleaning and belongs to Balmiki caste. On 18.02.2018, at about 10:30 AM, when he was present at Bandh Road Sangam Vihar, Munna Lal met him and told that there was a job of cleaning the blocked sewer drain in a bungalow in Sainik Farm. Thereafter, he along with Munna went to Kothi No. 167, Sainik Farm, where they met the owner A. K. Malhotra, who told them that there was a septic tank in a room inside the bungalow and the drain of the septic tank was blocked. Munna opened the lid of the septic tank which was about 12 feet deep and was filled with water up to 3-4 feet. There was no pipe for air in the septic tank. Munna told A. K. Malhotra that the septic tank was dark and there was no air outlet in it and that there could be gas in the safety tank and entering it was life threatening. Upon this, A. K. Malhotra told that he used to get this septic tank cleaned for the last many years and nothing had happened ever and further told that if you people will not do this work then who will do it, this is your work and by saying this A. K. Malhotra left. Thereafter, Munna started entering inside the septic tank with the help of stairs and as soon as he entered, Munna fell down from the stairs into the water. Munna's screaming voice was also not heard and when Munna did not move for some time, complainant looked inside the tank and saw that Munna was lying unconscious in the water. Thereafter, complainant started shouting loudly then A.K. Malhotra came there, he also saw Munna drowned. Complainant informed his family members through phone and Munna's real brother Manish SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 3 of 15 who had reached the house after some time of his call, called the police on 100 number. Before the police came at the spot, complainant Yogender went to Sangam Vihar to inform his relatives about Munna. Complainant also stated that accused A. K. Malhotra was responsible for the death of his brother Munna and legal action should be taken against him.
3. On the back of the afore-said statement of the complainant and MLC, offence under Section 304 of the Indian Penal Code, 1860 (IPC), Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and Section 3(1)(j) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC & ST Act) was found to be committed. SI Ranbir made endorsement on the above-said statement of complainant Yogender and after registration of the present First Information Report (FIR), further investigation of this case was handed over to Assistant Commissioner of Police (ACP) Rajender Singh Pathania.
4. During the investigation the IO/ACP had prepared site plan at the instance of complainant Yogender. IO also seized the rope and ladder with the help of which deceased Munna had entered inside the septic tank. IO also seized the mud water which was taken out from the septic tank. Thereafter, IO made inquires from accused Ashok Kumar Malhotra in respect of the present case and arrested him in the present case and also conducted his personal search.
SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 4 of 15
5. On 19.02.2018, IO collected the postmortem report no. 229 dated 19.02.2018 of deceased Munna. On the same day, accused Ashok Kumar Malhotra was produced in the Court and he was granted bail. On 20.02.2018, Dr. Shweta Sharma from RFSL Chanakyapuri, New Delhi was called at the spot and she inspected the spot and the exhibits which were lifted from the spot by the RFSL team were handed over to the IO and same were seized by the IO. During further investigation, IO also got verified the caste of deceased Munna, complainant Yogender as well as accused Ashok Kumar Malhotra and as per the report of SDM Saket, deceased and complainant belonged to Scheduled Caste category and accused Ashok Kumar Malhotra belonged to General category. IO also obtained the PCR Form along with certificate under Section 65B of the Indian Evidence Act. Viscera of the deceased was preserved in order to rule out concomitant poisoning or intoxication. IO also collected the fire report details as well as the crime team report and photographs clicked by crime team on the day of incident. Thereafter, exhibits were sent to RFSL Chanakyapuri.
6. Predicated on the afore-mentioned investigation, statement of the complainant and other witnesses under Section 161 Cr.P.C., charge-sheet for the offence punishable under Section 304 IPC, Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and Section 3(1)(j) of the SC & ST Act against accused Ashok Kumar Malhotra was prepared. Thereafter, charge-sheet was filed in the Court of Ld. MM-03 (South) on 23.06.2018, however, SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 5 of 15 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.03.24 17:29:44 +0530 cognizance was not taken as only Special Designated Court has the power to take the cognizance and, accordingly, the charge- sheet was received in the Court of Sessions on 21.08.2018. On 25.02.2018, the cognizance was taken and accused Ashok Kumar Malhotra was summoned.
7. Vide Order dated 08.05.2023, charge for the offence under Section 304-II IPC alternatively 304A IPC Section 3(1)(j) of the SC & ST Act and Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 was framed against accused Ashok Kumar Malhotra, who pleaded not guilty and claimed to be tried.
8. The framing of charge against the accused culminated into prosecution examining three witnesses which are as under:
A. PW1 Sh. Yogender, who is the complainant in the present case, deposed that on the day of incident, deceased Munna took PW1 to Sainik Farm in the house of Kapil Malhotra for cleaning the drain (naali). Munna told PW1 to clean the backside drain and that he would clean the front side drain. He further deposed that when he came in the front side, he saw that Munna was lying inside the septic tank and he was dead. PW1 called his cousin brother, namely, Manish, who was real brother of deceased Munna, and told him about the above-mentioned fact. Manish also reached there and called the police at 100 number. Police officials got removed the body of deceased SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 6 of 15 Munna from septic tank and he was found dead. Ambulance also reached at the spot and took the dead body of deceased to the hospital. This witness was declared hostile and was cross examined on behalf of the State. However, despite opportunity, this witness was not cross-examined on behalf of the accused.
B. PW2 Sh. Ram Kishan @ Makhan deposed that he used to pick up garbage from the area of Sainik Farm House and when he went to his native village i.e. Badayun, Uttar Pradesh, he asked his nephew Munna Lal to pick up garbage in his absence. He received a call from his children who informed that Munna Lal had expired. After receiving the said call, PW2 reached at Delhi and the last rites of Munna Lal was performed. He correctly identified accused Ashok Kumar Malhotra in the Court as he used to pick up garbage from his house. This witness was declared hostile and was cross examined on behalf of the State. However, despite opportunity, this witness was not cross- examined on behalf of the accused.
C. PW3 is Retired ACP Rajender Singh Pathania who deposed that on 19.10.2016, after registration of the case, same was marked to him for further investigation. He deposed about various aspects of the investigation and got marked documents i.e. site plan as Ex. PW3/A, seizure of ladder and rope as Ex. PW3/B, seizure memo of mud water as Ex. PW3/C, dead body identification memos as Ex. PW3/D and Ex. PW3/E, application for postmortem as Ex. PW3/F, seizure of exhibits handed over by the doctor as Ex. PW3/G, seizure of mud water collected from Digitally signed SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok KumarNAVJEET Malhotra Pg No. 7 of 15 by NAVJEET BUDHIRAJ BUDHIRAJ Date: 2025.03.24 17:29:50 +0530 two septic tanks and earth control as Ex. PW3/H, application for verification of caste of deceased and accused as Ex. PW3/I, verification report of caste as Ex. PW3/J (Colly), application for calling report from fire brigade as Ex. PW3/K, fire brigade report as Ex. PW3/L, application for inspection of septic tank as Ex. PW3/M. Despite opportunity, this witness was not cross- examined on behalf of the accused.
9. Accused did not oppugn the genuineness of some of the formal documents i.e. FIR No. 75/2018 (Ex. PA-1), certificate under Section 65B of the Indian Evidence Act (Ex. PA-2), PM Report No. 229/18 of deceased (Ex. PA-3), scaled site plan (Ex.
PA-4). PCR Form - I along with certificate under Section 65B of the Indian Evidence Act (Ex. PA-5 Colly), crime Team report (Ex. PA-6), twenty photographs clicked by crime team (Ex. PA-7 Colly), FSL Report No. RFSL 2018/C - 267 dated 27.12.2018 (Ex. PA-8), caste verification report of SDM Saket (Ex. PW3/J (Colly) and fire report along with reply dated 02.04.2018 already (Ex. PW3/L (Colly). His statement under section 294 Cr.P.C. in this regard was recorded on 24.03.2025.
10. During the course of the trial, PW Manish, who was real brother of deceased Munna was also summoned, however, before he could turn up in the witness box to depose, he had expired.
11. Prosecution evidence stood closed vide order dated 24.02.2025. Statement of accused under section 313 Cr.P.C. was SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Digitally Pg No. 8 of 15 signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.03.24 17:29:55 +0530 dispensed with in view of Section 232 Cr.P.C as there was no incriminating evidence against accused Ashok Kumar Malhotra
12. Ld. Counsel for accused sought his absolution from the charges as the complainant has failed to remain embedded in his initial complaint wherein he leveled allegations against the accused in relation to the death of the deceased. Ld. Counsel further pointed out that PW2 Ram Kishan @ Makhan has also not buttressed the case of the prosecution and did not attribute any inculpatory role upon the accused.
13. Ld. Additional Prosecutor for the State also submitted that one prosecution witness namely Manish got expired during the trial and could not be examined and remaining two witnesses namely Yogender and Ram Kishan @ Makhan, who earlier supported the case of the prosecution, recanted from their earlier statement and failed to depose anything against the accused.
14. I have bestowed my thoughtful consideration to the record of the case.
15. Accused has been charged for the offences under section 304-II/304A IPC, 3(1)(j) of SC/ST Act and 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. The case of the prosecution was rested upon the complaint of Yogender who is examined as PW1 before the court, but he failed to toe the line of the prosecution in so far Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date: 2025.03.24 17:30:00 +0530 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 9 of 15 as fixing the liability of the accused is concerned, though he described the manner in which his deceased brother Munna got injured and eventually died. The deposition of PW1 Yogender is to the effect that the deceased Munna was his cousin brother and he used to do the work of cleaning the septic tank. On the day of incident, deceased Munna took him to Sainik Farm in the house of Kapil Malhotra for cleaning the drain (naali). His deceased brother Munna told him to clean the backside drain and he would clean the front side drain. He further told PW1, 'jab main patti maaruga aur paani aayega toh mujhe bata dena'. After 15 minutes, PW1 came in the front side and saw that his cousin brother Munna was lying inside the septic tank and he was dead.
Thereafter, PW1 immediately called his cousin brother, namely, Manish, who is real brother of deceased Munna, and told him about the above-mentioned fact. Manish also reached there and he called the police at 100 number. Police officials got removed the body of deceased Munna from septic tank and he was found dead. Ambulance also reached at the spot and took the dead body of deceased to the hospital.
16. It is clear from the above that though PW1 spoke about the work being carried out by deceased Munna at the house of Kapil Malhotra, but he has not testified to the effect that it was at the instance of the accused Ashok Kumar Malhotra that the deceased Munna went to clean the septic tank.
17. PW1, having not identified the accused nor stating anything about the recording of his statement by the police, was NAVJEET Digitally signed by NAVJEET BUDHIRAJ BUDHIRAJ Date: 2025.03.24 17:30:05 +0530 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 10 of 15 cross examined on behalf of the state but in vain. The extract of his cross examination is reproduced herein under:
"I have not stated to the police in my complaint now exhibited as Ex.
PW1/A that on 18.02.2018, at about 10:30 AM, my cousin brother came to me and he told me that we have to clean a sewage / naali in a kothi at Sainik Farm. (Confronted with portion A to A1, where it is so recorded.) I have not stated to the police in my complaint Ex. PW1/A that I along with cousin brother reached at Kothi No. 167, Sainik Farm where owner of the said kothi i.e. accused A. K. Malhotra met us and he told us that one septic in the room of the above-
mentioned kothi and drain of the said septic tank was blocked.
(Confronted with portion B to B1, where it is so recorded.) I have not stated to the police in my complaint Ex. PW1/A that my cousin brother Munna went there and he opened the cover of the septic tank and it was around 12 feet deep which was filled with water upto 03-04 feet and there was no pipe for air.
(Confronted with portion C to C1, where it is so recorded.) I have not stated to the police in my complaint Ex. PW1/A that my cousin brother Munna told accused A. K. Malhotra that the septic tank was dark and there was no space for air and he further told accused that, 'iske andar ghusne mein jaan ka khatra hai', upon this accused replied that he was getting the septic tank clean for last so many years and nothing was happened to anyone. NAVJEET (Confronted with portion D to D1, BUDHIRAJ where it is so recorded.) Digitally signed I have not stated to the police in my by NAVJEET BUDHIRAJ complaint Ex. PW1/A that accused Date: 2025.03.24 17:30:10 +0530 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 11 of 15 told me and my brother that, agar yeh kaam tum log nahi karoge toh kon karega, yahi tumhara kaam hai' and, thereafter, accused left from there. (Confronted with portion E to E1, where it is so recorded.) I have not stated to the police in my complaint Ex. PW1/A that my cousin brother tried to go inside the septic tank through stairs and all of sudden, my cousin fell into the septic tank and I did not listen the voice / cry of my cousin brother. (Confronted with portion F to F1, where it is so recorded.) I have not stated to the police in my complaint Ex. PW1/A that when I noticed that Munna was not doing any movement, I peep into the septic tank and saw that Munna was lying inside the septic tank in an unconscious condition, on seeing him, I started crying and accused A. K. Malhotra also reached there and he also saw my cousin brother Munna lying inside the septic tank. (Confronted with portion G to G1, where it is so recorded.) I have not stated to the police in my complaint Ex.
PW1/A that accused A. K. Malhotra was responsible for the death of my cousin brother Munna. (Confronted with portion H to H1, where it is so recorded.) At this stage, arrest memo and personal search memo of accused A. K. Malhotra are shown to the witness, after seeing the same, witness states that he has not put any thumb impression on these memos.
Arrest memo and personal search memo are now exhibited as Ex.
PW1/B and Ex. PW1/C respectively. It is wrong to suggest that IO did not NAVJEET BUDHIRAJ prepare the site plan at my instance. It is wrong to suggest that I have Digitally signed by NAVJEET BUDHIRAJ been won over by the accused. It is Date: 2025.03.24 17:30:15 +0530 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 12 of 15 wrong to suggest that I am suppressing the true facts deliberately in order to save the accused. It is wrong to suggest that I am deliberately and intentionally not identifying the accused as I have been won over by the accused. It is wrong to suggest that I am deposing under pressure in order to save the accused. It is wrong to suggest that I am deposing falsely."
18. PW2 Ram Kishan @ Makhan deposed being belonging to Balmiki caste which falls under the scheduled caste category. He used to pick up garbage from the area of Sainik Farm House. He went to his native village i.e. Badayun, Uttar Pradesh and he asked his nephew Munna Lal to pick up garbage in his absence. He received a call from his children who informed him that Munna Lal had expired, however, he did not remember the exact date, month and year when he received the said call. Deceased Munna Lal was his nephew. At that time, he was present in his native village in Badayun Uttar Pradesh. After receiving the said call, he reached at Delhi and the last rites of Munna Lal was performed. He did not know more about the present case. He further claimed that police did not inquire him in the present case and did not record his statement. PW2 knew accused Ashok Kumar Malhotra as he used to pick up garbage from his house.
19. PW2 was also cross examined on behalf of the State but he denied having stated to the police that he came to know that his nephew Munna along with his son Yogender went to the Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.03.24 17:30:21 +0530 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 13 of 15 house of accused to clean the septic tank and while cleaning the septic tank, his nephew fell in the septic tank and died. He further denied that he has been won over by the accused and suppressing the true facts deliberately in order to save the accused.
20. Investigating Officer, the then ACP was examined as PW3 who deposed about various aspects of the investigation but his testimony in itself is not sufficient enough to prove the charges against the accused.
21. Further, statement on the part of the accused having admitting the documents i.e. FIR No. 75/2018 (Ex. PA-1), certificate under Section 65B of the Indian Evidence Act (Ex. PA-2), PM Report No. 229/18 of deceased (Ex. PA-3), scaled site plan (Ex. PA-4). PCR Form - I along with certificate under Section 65B of the Indian Evidence Act (Ex. PA-5 Colly), crime Team report (Ex. PA-6), twenty photographs clicked by crime team (Ex. PA-7 Colly), FSL Report No. RFSL 2018/C - 267 dated 27.12.2018 (Ex. PA-8), caste verification report of SDM Saket (Ex. PW3/J (Colly) and fire report along with reply dated 02.04.2018 already (Ex. PW3/L (Colly) under section 294 Cr.P.C also would not be sufficient to infer the act on his part which purportedly led to the death of the deceased Munna.
22. The foregoing elucidation goes on to show that the prosecution witnesses failed to pin point that at the instance of the accused Ashok Kumar Malhotra that deceased Munna went for cleaning to septic tank where he fell and died, thus, the Digitally signed NAVJEET by NAVJEET BUDHIRAJ BUDHIRAJ Date: 2025.03.24 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 14 of 15 17:30:36 +0530 charges against the accused cannot be said to be substantiated. Therefore, accused Ashok Kumar Malhotra stands acquitted of all the charges which were framed against him. He is set at liberty. File be consigned to record room. PRONOUNCED IN OPEN COURT ON Digitally signed THIS 24th DAY OF MARCH 2025 by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.03.24 17:30:41 +0530 (Navjeet Budhiraja) ASJ-02, South District Saket Courts, New Delhi 24.03.2025 Certified that this Judgment contains 15 pages and each page bears my signatures. Digitally signed NAVJEET by NAVJEET BUDHIRAJ BUDHIRAJ Date: 2025.03.24 17:30:44 +0530 (Navjeet Budhiraja) ASJ-02, South District Saket Courts, New Delhi 24.03.2025 SC No. 516/2018 FIR No. 75/2018 PS Neb Sarai State Vs Ashok Kumar Malhotra Pg No. 15 of 15