Delhi District Court
State vs Dheeraj Kumar on 22 September, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 3603/2017
Unique Case ID No. -: DLSW020115692017
FIR No. -: 171/2016
Police Station -: BHD Nagar
Section(s) -: 337 IPC
In the matter of -
STATE
VS.
1) DHEERAJ KUMAR
S/o Late Geeta Prasad Singh,
R/o RZ-22A, Jai Vihar, Phase-II,
Gali no. 2, Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Ravi
2. Name of Accused : Dheeraj Kumar
Offence complained of or
3. : 337 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 29.05.2017
offence
6. Date of Filing of case : 12.05.2017
7. Date of Reserving Order : 15.09.2023
8. Date of Pronouncement : 22.09.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 1 of 23
BRIEF STATEMENT OF REASONS FOR THE
DECISION :
"A reasonable doubt is nothing more than a doubt for which reasons can be given" Lord Hailsham.
Accused was tried on the allegation that his negligence or rashness led to injuries to the complainant, and his family members. By cross-examining prosecution witnesses, and leading evidence in the affirmative, accused successfully perforated the prosecution version, leading to reasonable doubt that the injuries were not a result of his rashness or negligence. Resultantly, he stands acquitted of the charges levelled against him. FACTUAL MATRIX-
1. Accused Dheeraj Kumar is facing trial for the offences punishable under Section Section 337 Indian Penal Code, 1860 (hereinafter, the IPC).
2. It is the case of prosecution that a wall was being constructed in the house of the accused. The construction was raised negligently, and the said wall was not sufficiently supported with pillars etc. Due to this, on 29.05.2017, at about 08.15 PM, at RZ 22A Jai Vihar, Phase-II, Gali no. 2, within the jurisdiction of PS BHD Nagar, the said wall collapsed, and fell on the roof of the adjoining house bearing no. 22/25 situated at gali no. 3, Jai Vihar, Phase-II, Najafgarh, Delhi. The aforesaid roof also collapsed. Same resulted in simple injuries to Smt. Shanti Devi, Smt. Rekha, Ms. Pooja and Ms. Neha. Accordingly, instant FIR was registered against the accused.
Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 2 of 233. Upon culmination of investigation, subject chargesheet was filed against accused under Sections 288/337 IPC, and he was summoned to face trial. When the accused appeared before this Court to face trial, in compliance of Section 207 CrPC, copy of chargesheet was supplied to him.
4. After consideration of material on record, and hearing arguments of both sides, notice under Section 337 IPC was served upon the accused Dheeraj vide order dated 18.07.2017. Accused Dheeraj was discharged for the offence punishable under Section 288 IPC, however. He pleaded not guilty to the offence alleged against him, and claimed trial.
PROSECUTION EVIDENCE-
5. The matter was then fixed for recording of prosecution evidence/PE. In support of its version, prosecution examined a total of twelve witnesses-
5.1 Prosecution examined the complainant Sh. Ravi Shankar as PW1. He avouched on oath that on 29.05.2016, between 08.00-08.15 PM, when he was present in the courtyard (verandah) of his house, he noticed that a stone piece (Tukri) fell upon his shoulder. He further deposed that when he went upstairs, he discovered that roof of his house had fallen down , because of the wall of house of accused Dheeraj Kumar collapsing on top of it. He deposed that there was debris (Malba) on the first floor of their house, as the roof of second floor had fallen down. He further deposed that accused Dheeraj was constructing his house, and in that process, after the construction Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 3 of 23 of first floor was complete, 4" inch walls were constructed on the second floor, without any beam or pillars. He testified that the said wall was very weak because of absence of any beam or pillars in the wall, and it being only 4 inches thick. He further deposed that he had asked accused Dheeraj several times to rectify the same, but he never paid heed to his request and instructions. He testified that on the day of incident, he rescued his mother Shanti Devi, his elder sister Rekha, and her two daughters- namely, Neha and Nisha and his younger sister Pooja, who were trapped under the debris. He testified that his father Sh. Bholey Shankar also suffered injuries because of stone piece(Tukri) falling upon him. By that time, some neighbours also came to rescue them, and took them to Nirmala Hospital, but the hospital staff denied to treat them as their condition was serious. Thereafter, his father and younger brother took them to RTRM Hospital for treatment. He deposed that police came on the spot after sometime. He further deposed that his sisters Pooja and Rekha, and his niece Neha suffered injuries on their heads in the incident, and all others suffered injuries on their bodies. He relied upon his statement Ex PW-1/A, and photographs of house Ex PW-1/B(colly.)(five photographs) in his testimony. He was duly cross examined and discharged.
Pertinently, the witness was recalled for recording of his testimony under Section 311 CrPC, when his application in this regard was allowed. He brought on record a conversation between the accused and his brother pertaining to the date of the incident, and which got recorded on his phone. Even at this stage, he was duly cross-examined, and discharged.
Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 4 of 235.2 Thereafter, prosecution examined injured Ms. Pooja as PW2. She deposed that on the date of incident, at about 8.15 p.m, she was present at her house and watching T.V at first floor., when the roof of their house fell. She deposed that she came under the debris, and sustained injuries on her back and head. She further deposed that despite requests made by her family members, accused did not take proper care while constructing a wall in his house, which consequently fell on the roof of their house. She also deposed that the wall fell down because of sub-standard construction material used by the accused in constructing it. She further stated that her brother and father took her to RTRM hospital for treatment. She relied upon the photographs of the spot, Ex. PW1/B in her testimony. She was also cross examined at length before being discharged as a witness.
5.3 Injured Ms. Rekha was examined as PW3. She deposed that on 29.05.2016, she was inside her house along-with her whole family, when the roof of their house fell, because of wall of house of accused falling on it.The witness also testified that the wall fell due to negligence in its construction. She further testified that as a result thereof, injuries were sustained by her mother Shanti Devi, sister Pooja, her daughter Neha, besides herself. She was also duly cross examined and discharged.
5.4 Next prosecution witness which was examined was injured Ms. Shanti Devi, PW4. She corroborated the version of PW3 and PW4, and also testified that roof of their room collapsed because wall of house of accused fell on it, and the cause of fall of wall was negligence of accused in its construction. She was also duly Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 5 of 23 cross examined and discharged.
5.5 Prosecution further examined PW-5 Ct. Dharamveer Singh. He asserted on oath that on the day of incident, he alongwith SI Jagmohan, were on emergency duty, and at about 08.40 pm, a call was received regarding the wall of a house situate in Jai Vihar falling. He deposed that they then reached the spot, and found that a wall had fallen down and some persons had also sustained injuries because of the same, and they had already been shifted to a hospital. Meanwhile, they received another call regarding shifting of injured persons to the RTRM hospital. He testified that IO SI Jagmohan went to the hospital, while he remained at the spot. He testified that IO returned to the spot after a while, recorded statement of complainant on the basis of which subject FIR was registered, and called Crime Team to the spot, which clicked photographs Ex. PW1/B. He was duly cross examined and discharged.
5.6 Prosecution thereafter examined PW6 HC Suraj Bhan. He deposed that after receiving call from the Control Room, he reached at the spot ie. H. no. 22/25, Gali no. 3, Jai Vihar, Phase- II, Najafgarh and saw that one wall of the house had fallen down. He testified that he clicked the photographs of the spot as per the direction of IO SI Jagmohan. He also produced the negatives of the photographs, Ex. P1, and identified the photographs Ex. PW1/B in his testimony. He was also duly cross examined, before being discharged.
5.7 Prosecution next examined PW7 ASI Krishan Kumar. He deposed that on 16.01.2017, he received the case file from Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 6 of 23 MHCR for conducting further investigation into the matter. He deposed that he obtained the final result on the MLC no.2901 and 2904. He further deposed that on 15.03.2017, he examined the victim namely Shanti Devi. He further deposed that he then prepared the chargesheet, and filed the same before the Court. He was also cross examined and then, discharged.
5.8 Prosecution further examined PW8 ASI Deepak Roy. He deposed that on 29.05.2016, one PCR call was received regarding a roof collapsing, and the said DD entry Ex. PW8/A (OSR) was marked to SI Jagmohan for further action. On the same day, one DD entry regarding five injured persons was also received i.e. DD no. 41A being Ex. PW-8/B (OSR). He avouched on oath that on the same day, at about 10.25 pm, one telephone call from RTRM hospital was received regarding preparation of MLCs of Shanti Devi, Rekha, Neha and Pooja, and the said DD entry was also marked to SI Jagmohan for further action. The said DD entry no. 50A was exhibited as Ex. PW-8/C (OSR). The witness was not cross-examined despite opportunity.
5.9 PW9 Dr. Priyanka testified that she medically examined injured Shanti Devi, Rekha and Pooja vide MLCs no. 2901,2902 and 2903 being Ex PW-9/A, Ex PW-9/B and Ex PW-9/C respectively. She was not cross examined despite opportunity.
5.10 IO SI Jagmohan took the witness stand as PW10. He deposed that on 29.05.2016, a PCR call DD no. 40A Ex. PW-8/A was received at around 8.45 pm, that a roof had collapsed and few persons were injured. He deposed that he, alongwith Ct. Dharamvir, reached the spot and found that wall of one house Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 7 of 23 had collapsed over the roof of its adjacent house, due to which the roof of the said adjacent house had also collapsed. He deposed that at around 10.30 pm, another call vide DD No. 50A Ex. PW8/C was received at the Police station, as per which few injured had been admitted to RTRM hospital. He deposed that he collected MLCs of all the all victims Ex. PW-9/A, Ex. PW-9/B, Ex. PW-9/C ,Ex. PW-10/A. He deposed that he then reached the spot, and met eye witness Ravi. He deposed about codal formalities conducted by him. He relied upon rukka Ex. PW10/B, site plan Ex. PW10/C, arrest memo Ex. PW-10/D, bail bonds furnished by accused Ex. PW-10/E in his testimony. He further deposed that he was then transferred from the PS concerned. He was cross-examined at length before being discharged as a witness.
5.11 Prosecution examined one Shankar (mason) as PW11. He testified that in the year 2016, he had done the work of construction of wall in the house of accused. He further stated that the wall was constructed on support of lanter which was already-constructed, and the pillars which were to be raised on the next day of construction of wall could not be raised, as on the same night, a thunderstorm (Tuffan) had come, and due to that, the wall collapsed. He further stated that mother of accused Dheeraj had hired his services for the said construction. He also deposed that when construction is raised on upper floor of a building, generally, first the wall is constructed, and later pillars are raised to support the same. The witness was duly cross examined and discharged.
Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 8 of 235.12 Prosecution lastly examined PW-12 Sh. Kulwant Singh. Record regarding unauthorized construction work at the house of accused Ex. PW-12/A (colly)(OSR) was brought by the witness. He was also cross-examined, and then discharged.
6. The remaining documents i.e. FIR no. 171/16 Ex. P-1, MLC no. 2904/16 Ex. P2, and MLC no. 2901 of injured Shanti Devi Ex. PW9/A ,were put to the accused, and were admitted by him under Section 294 CrPC. Accordingly, the remaining witnesses were dropped from the list of prosecution witnesses.
7. No other witnesses were examined by the prosecution, and PE was accordingly closed.
8. Separate statement accused under Section 313/281 CrPC were recorded on 02.05.2019. His additional statement were recorded on 24.10.2019 and 23.05.2023 as well. The crux of his submission was that he has been wrongly implicated in the present case, and the incident occurred due to a natural calamity. He also opted to lead evidence in the affirmative. Proceedings accordingly progressed to the stage of DE.
9. At the stage of DE, accused examined four witnesses in total- 9.1 Accused took the witness stand as DW1, after his application under Section 315 CrPC was allowed. He stated that on the date of incident, he was out of station, and due to heavy wind storm and rain, the newly constructed wall in his house, which was about 3-4 feet high, collapsed and fell down on roof of his Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 9 of 23 neighbour's house. He further stated that he is not the owner of the property he resides at, and had nothing to do with the construction work going on therein. He further testified that his mother had given the contract of construction of the property to one Sh. Shankar, and he has been wrongly implicated in the case. He was cross-examined at length, and then discharged. 9.2 Accused next examined Ahlmad in the court of Ld. ADJ-03, Dwarka courts as DW2. He produced the original court file of Civil Suit No. 17695/16 titled 'Bhole Shankar Vs. Varun & ors.', as well as the copy of memo of parties, Ex. DW2/A(OSR). He was cross examined before being discharged. 9.3 Accused examined Ram Avtar Singh, Meteorologist, as DW3. He brought the MMR register depicting the daily observation report of the weather of the day of incident from 08:30 AM to 05:30 PM, and copy of the observations for 29.05.2016, Ex. DW3/A (OSR). Further, the tabulation report for May 2016, which was prepared on the basis of the said observation was also brought on record by the witness, being Ex. DW3/B(OSR). He identified the signatures of the officials who had prepared the said report, Ex. DW3/C. He was discharged after being being duly cross-examined.
9.4 Accused next examined HC Sachin as DW4. He proved on record PCR call register dated 29.05.2016. He further stated that on the date of incident, total eight PCR calls were made with regard to bad weather condition and said calls were registered vide DD no. 38 A, 39A, 40 A, 41 A, 45A, 44A, 47A and 51 A Ex. DW4/A (colly) within the jurisdiction of PS BHD Nagar. He testified that out of same, DD no. 40A and 41 A were made from Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 10 of 23 Jai Vihar. The witness was also duly cross examined, and then discharged.
10. No other witnesses were examined by accused, and D.E was accordingly closed. Proceedings then progressed to the stage of final arguments. Final arguments have been heard. Record perused. Considered.
FINDINGS
11. Before proceeding further, it would be apposite to delineate the relevant provision of law. Section 337 IPC provides that, "Whoever causes hurt to any person by doing 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 six months, or with fine which may extend to five hundred rupees, or with both."
12. For a successful prosecution against the accused, the prosecution had to prove a commission of an act rash or negligent by the accused, and as a consequence to such rash or negligent act, causation of injuries to the injured persons. Negligence, simply, is the breach of duty to take care. It is the failure of a person to behave with a level of care expected from a reasonable person. Rashness, on the other hand, is a wanton act which is dangerous, and done with the knowledge that such act is wanton or dangerous, but without intending that such dangerous consequences would follow the act. This, succinctly, is the legal position, as culled out from decisions of Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 11 of 23 Superior Courts.
13. Now, certain facts emerge as admitted facts in the case:-
a) That the wall of the house of accused persons fell on the date of the alleged incident.
b) Due to the wall of the house of the accused persons falling, the property of the complainant was also damaged, and the roof of the house of complainant also fell, and caused injuries to the complainant as well as his family members.
14. Against the case of prosecution that the wall fell down due to negligence of accused, defence of accused has been that he was not responsible for the construction of the wall, and in any event, the same fell down not due to any negligence, but because of the supervening event of thunderstorm. What remains to be proved by the prosecution is that the act that resulted in injuries to the complainant and his family members was caused by the accused, either acting rashly or negligently. Evidence to establish 'rashness' or 'negligence' beyond any reasonable doubt had to be brought on record by prosecution. The points of determination that arise in the case are-
(i) Whether the accused can be held liable for the construction of the wall, that later collapsed?
(ii) Whether the cause of the wall of the house of accused collapsing was his negligence or rashness?
(iii) Whether the thunderstorm on the date of incident can be attributed as a reason of the wall collapsing?
15. Qua Point of Determination no. (i).
Prosecution ought to have proved that the accused was responsible for getting the wall constructed in his house, which Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 12 of 23 later collapsed. Concept of vicarious liability is unknown to criminal law, and liability for the collapse of the wall and the resultant injuries to the complainant as well as the other injured persons cannot be affixed upon him merely because he was the resident of the premises in which the wall was being constructed. It is seen that no evidence was brought on record by prosecution to prove that the wall was being constructed under the instructions of the accused. PW1-PW4 merely testified that they had asked accused to get the construction properly done, but failed to unambiguously testify that it was indeed the accused who was responsible for getting the wall constructed. They did not testify categorically that it was the accused who had engaged labourers to get the wall constructed. No assertion was made as to who was the actual owner of the property, and in what manner the complainant came to the conclusion that it was the accused who was handling the construction activity that was going on in his house. Mason who had actually constructed the wall was examined by the prosecution, and while deposing as PW11, he testified that he was working under the instructions of the mother of the accused. This portion of the testimony punches a loophole in the prosecution version itself. Further, accused testified as DW1 that his mother had hired a contractor for getting construction work done in their house, and it was her who was making payments to the contractor. This portion of his testimony was not shaken by the prosecution in any manner. He also examined DW2., who brought on record the trial court record of civil suit instituted by the complainant against the said contractor, inter-alia, to claim compensation for the loss sustained by them.
Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 13 of 2315.1 When the complainant was aware of the fact that there was indeed a contractor that had been engaged by the accused person, why PW1 to PW4 still consistently deposed that there was no contractor who had raised the construction and it was the accused who was directly responsible for getting it constructed from daily wage labourers is unclear. This further discredits the credibility of the witnesses. It also brings on record the fact that the responsibility for constructing a wall which was weak and was constructed with substandard construction material cannot be affixed upon the accused. As such, it cannot be held to be proved beyond reasonable doubt that the accused was responsible for getting the construction of the wall done.
15.2 Prosecution also examined PW12 Kulwant Singh from the Building department, SDMC, Najafgarh, who brought on record the documents Ex. PW12/A, being record of all the notices issued for unauthorised construction being raised at the house of the accused. The said witness also admitted that neither of the notices have been issued in the name of the accused, which substantiates the defence of the accused that neither was he the owner of the property, nor responsible for getting the construction raised therein. However, none of the notices particularly pertain to the construction of the wall that collapsed and led to the injuries to the complainant and his family members in the present case. Even otherwise, merely proving the fact that accused was raising unauthorized construction does not ipso facto prove the fact of negligence. It is not the case of prosecution that the wall fell because it was being raised in an unauthorised manner, but that it fell because of being poorly Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 14 of 23 constructed. The report of this official was insufficient to prove the same.
16. Qua Point of Determination no. (ii).
The wall that fell on the house of the complainants, causing damage to their property as well as injury to them, had been constructed on the date of the incident itself. The initial complaint filed by the complainant, Ex. PW1/A, mentions that the complainant Dheeraj was raising the construction of a wall of his second floor in his property, and multiple requests were made to him to ensure that pillars are constructed to properly support the wall. PW2 Pooja, being one of the injured, testified in her cross examination that the wall was constructed on the same day in the morning, and fell down in the evening. She testified that because of this fact, she could deduce that the wall was not constructed properly. Even PW11, being the mason who had constructed the said wall in the house of the accused persons, testified that the wall was constructed on the same date on which it fell. He testified that pillars would have been constructed to support the wall on the day following that of the construction of the wall, but before the same could be constructed, in the intervening night, the wall collapsed. Testimonies of these witnesses is sufficient to reach the conclusion that the wall raised in the house of the accused persons collapsed on the same date on which it was built.
16.1 To establish that the cause of the collapse of the wall was the negligence of accused, all four injured persons PW1 to PW4 , testified on similar lines to the effect that they had been Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 15 of 23 requesting the accused that he may get pillars constructed to support the newly constructed wall, and that they apprehended that the wall would fall if the same is not done. Now, it is not the case of prosecution that accused Dheeraj had the technical know- how to adjudge how the wall had to be constructed. No evidence has been brought on record to show that the accused was supposed to be in the knowledge that any wall that is constructed should have been supported by pillars, and it was an incorrect way of construction that the wall be first constructed and then pillars to support the same be raised later. As such, the tenor of entire testimony of the prosecution witnesses, if the liability of the accused had to be established, should have been different. It being the consistent defence of the accused that the wall fell because of a supervening event, i.e. a thunderstorm, if the prosecution witnesses had indeed deposed that weather conditions for a few days around the time that the construction was being raised was not right, and that they had been requesting the accused to stop the construction of the wall, fearing that it will collapse because of bad weather conditions, the liability of the accused could have been established. The prosecution would then have been able to prove that the accused was negligent in not following his duty of care towards his neighbours in taking the decision to continue the construction of the wall, despite bad weather conditions. However, the entire tenor of the prosecution witnesses instead was that the construction of the wall itself was not done properly. At the cost of reiteration, the accused was not supposed to have any technical knowledge of how the wall had to be constructed. If indeed the cause of the collapse of the wall Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 16 of 23 was not any supervening event, but the fact that the wall had not been constructed properly, either the prosecution should have brought on record sufficient evidence to prove that the contractor or the masons who were constructing the wall had requested the accused to provide them with sufficient good quality building material, which he refused to do, and therefore did a rash act in allowing the construction of the wall, knowing fully well that it can collapse because of substandard construction material. No such evidence was brought on record by the prosecution. In fact, the mason that was examined, being PW11, testified on oath that he had prepared the construction material of the wall in proper proportion to ensure that the wall which is constructed is sturdy. Testimony of the witness to this effect was not discredited in any manner by the prosecution. No material was brought on record by the prosecution to prove that the construction material used in the wall was of substandard quality. The testimonies of PW1 to PW4 to the effect that good material was not being used for the construction of the wall, which led to the collapse of the wall cannot be considered to be sufficient to affix liability on the accused herein. This is in view of the fact that PW1 to PW4 are not expert witnesses of any kind, and anyway, they have not specified clearly in what manner the construction material was substandard. In any event, their testimony even if it, arguendo, establishes that the construction material was substandard, does not establish that the accused had deliberately provided the contractor or the mason with such substandard material, which could have led to the collapse of the wall. Absent such testimony, liability for poor construction could not been affixed against the Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 17 of 23 accused.
16.2 It stands admitted by the injured, during final arguments, as well as during the trial, that they had initiated proceedings in Civil court of competent Jurisdiction for compensation for their loss, which was caused due to the wall falling down. In the said proceedings, the contractor who had raised the construction has also been made a party. Despite the same, in the case at hand, the prosecution sought to affix liability for the collapse of the wall only upon the accused, on the ground that he was responsible for getting the construction raised in his property. No evidence has been brought on record by the prosecution that the construction was not being properly raised, and if it was being properly raised, the accident would not have occurred. In fact, PW 11 testified that when walls are constructed on the upper floors of the building, it is a usual practice that they are constructed first, and thereafter the pillars to support the wall are raised. This portion of testimony of PW11 completely detracts from the prosecution version that the reason of the collapse of the wall was the negligence of the accused.
16.3 All in all, even if it is conceded that accused was responsible for getting the construction work done, no material on record is available to reach the conclusion that the incident occurred because of his rashness or negligence. 16.4 PW10 IO/SI Jagmohan also testified that he had reached the spot after receiving the call of the collapse of the wall and information that a few people had been injured because of the same. In his entire testimony, PW10 did not specify exactly in what manner was the accused responsible for the collapse of the Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 18 of 23 wall. In fact, in his cross-examination, he admitted that there was a thunderstorm on the date of the incident. This fact detracts from the prosecution version, in as much as the star witnesses of its case had otherwise deposed on oath that there was no thunderstorm on the date. The IO further deposed that he could not say if the collapse of the wall was due to heavy rains or because of it being built with insufficient quality construction material. In this manner, PW11 also does not add any weight to the case of prosecution.
16.5 Testimonies of other prosecution witnesses also do not help the case of the prosecution. PW5 Ct. Dharambir testified that he had received an emergency call on the date of the incident regarding the collapse of the wall, after which he visited the spot. He testified that he, along with the IO, did local enquiry at the spot, after which the IO left for the hospital to record the statement of the injured persons and he remained at the spot. PW5 testified that the crime team was called and photographs of the spot were taken in his presence. As neither the factum of the collapse of the wall nor the fact that injuries were caused through the complainant and his family members has been disputed in the facts of the case, testimony of PW5 does not benefit the case of prosecution in any manner. Photographs of the spot were proved by PW6, and his testimony also does not forward the case of prosecution in any manner. Similar is the fate of testimony of PW7 ASI Krishan Kumar who testified that he had obtained the MLCs of the injured from the hospital, before preparing the subject charge sheet and filing the same in court. Testimony of PW8 to the effect that he had recorded DD entry Ex. PW8/8A Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 19 of 23 regarding the collapse of the wall also does not support the case of prosecution in any manner. Testimony of PW9 Dr Priyanka who came on record to prove the MLCs Ex. PW9/A Ex. PW9/B and Ex. PW9/C also does not further the case of prosecution in any substantial manner. It merely proves that injuries were indeed sustained by the injured, but does not prove that the cause of the same was negligence on part of the accused.
17. Qua Point of Determination no. (iii).
It has been the consistent defence of the accused that the reason for the collapse of the wall was bad weather conditions subsisting on the day of incident. It is his case that the wall collapsed due to the supervening event of thunderstorm. This version of the accused was supported by prosecution witness PW11, who deposed in his examination in chief itself that before pillars to support the wall that was constructed in the house of the accused could not be raised as a thunderstorm had come on the same night, which led to the collapse of the wall. Accused could probabilize this version also by examining DW3 Ramavatar Singh, Meteorologist, from Regional Meteorological Center, New Delhi. He brought on record the weather report for the date of the alleged incident Ex. DW3/A, to establish on record the fact that there was indeed a thunderstorm on the date of the incident. Now, it is seen that all injured persons had consistently deposed that there was no thunderstorm or bad weather condition existing on the date of the incident. This report categorically sets at naught their testimonies, and punches a loophole in the credibility of the said witnesses. This witness / DW3 testified on Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 20 of 23 oath that wind speed on the date of the alleged incident was more than usual, and there was indeed a thunderstorm. When cross- examined by Ld. APP for the State, the witness also testified that the wind-speed as mentioned in the weather report may have been sufficient to lead to the collapse of the wall. This testimony of the witness further probabilizes the defence of the accused that the collapse of the wall was not due to the wall having been constructed with inferior material, but due to natural causes. Even if the weather report does not show that the windspeed was 100 kmph as claimed by the accused persons, it does show that the wind speed was more than usual, even when compared to the wind speed of a few days preceding and succeeding the date of the incident as mentioned in the said report. Testimony of DW3 is also to be considered with testimony of DW4, who brought on record numerous DD entries registered on the date of the incident. This witness testified in his cross examination that aside from the DD entries pertaining to the collapse of the wall of the accused, one other DD entry was also registered on the same date pertaining to collapse of a building. Even this testimony probabilizes the case of the accused that the reason of the collapse of wall was the supervening event of bad weather, for it led to similar other incidents as well. This can be considered as the final nail in the coffin for prosecution case. 17.1 A transcript of the phone conversation between the accused and his brother Bittu was also brought on record by the complainant by way of an application under section 311 CrPC, at almost the fag end of the trial. The record of this conversation Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 21 of 23 also proves that there was indeed a thunderstorm on the date of the incident. Besides that, accused is seen to be conversing with his brother, who is reassuring him that even if his liability is affixed for the fall of the wall, he shall only be punished for a period of six months maximum, and he need not be worried for the injuries that have been caused to the complainant and his family members. This conversation can by no means be considered to be an admission of the accused of his guilt in the present case.
18. Qua (i) point of determination, it is concluded that prosecution could not prove beyond reasonable doubt that accused was responsible for the construction of the wall. Qua point of determination no (ii), it is concluded that no negligence on part of accused in getting the construction done could be established by prosecution, and in fact, referring to point no (iii), it is concluded that the thunderstorm was a probable cause of the collapse of the wall. Axiomatically, it is held that prosecution has miserably failed to prove that the cause of the collapse of the wall in the house of the accused was the negligence or rashness of the accused. In view of the same, even though it is a matter of record that injuries were indeed sustained by the complainant and his family members, no criminal liability can be affixed upon the accused. Accordingly, accused Dheeraj Kumar, S/o Late Geeta Prasad Singh, stands acquitted for the offence punishable under section 337 IPC.
Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 22 of 2319. File be consigned to Record Room after due compliance with section 437 A Cr.P.C.
Pronounced in open court on 22.09.2023 in presence of accused person.
This judgment contains 23 pages and each page has been signed by the undersigned.
Medha Digitally signed by Medha Arya Date: 2023.09.23 Arya 17:21:16 +0530 (MEDHA ARYA) Metropolitan Magistrate-07 South-West District, Dwarka Courts, New Delhi, 22.09.2023 Cr. Case No. 3603/2017 State vs. Dheeraj Kumar Page 23 of 23