Delhi District Court
State vs Subhash Bansal on 16 December, 2024
IN THE COURT OF MS. AAKANKSHA, JMFC-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
DLWT02-002476-2014
AAKANKSHA
CNR No. DLWT02-002476-2014
Digitally signed
by AAKANKSHA Cr. Case No. 65337/2016
Date: 2024.12.16 FIR No. 42/2013
03:54:36 +0530 PS Nangloi
State Vs. Subhash Bansal
JUDGMENT
(a) Sr. No. of the case 65337/2016
(b) Date of offence 06.02.2013
(c) Complainant Lal Chand S/o Sh. Mulla Ram R/o
Dani Chhipli, Village-Tejala, P. S.
Toda, Tehsil Neem Ka Thana, Sikkar,
Rajasthan.
(d) Accused person Subhash Bansal S/o Sh. Mohan Lal
R/o H. No.BC-21, Block-BC, HB
Society, Mianwali Nagar, Delhi.
(e) Offences Under Section 288/304A IPC
(f) Plea of accused Pleaded not guilty.
(g) Final Order ACQUITTAL
(h) Date of institution 03.01.2014
(i) Date of judgment 16.12.2024
FIR No.42/2013 State V. Subhash Bansal Page No. 1 / 14
PS Nangloi
BRIEF STATEMENT OF THE REASONS FOR DECISION
1. The prosecution story, in brief, is that on 06.02.2013 at around 12 noon at Plot No. 16, Ratan Park, in front of a government school, Nangloi, Delhi complainant's brother Shiv Pal died due to electrocution. Both complainant Lal Chand and his brother Shiv Pal (deceased) were employed by accused to complete the demolishing work of the remaining portion of said building and accused ensured them repeatedly that the electricity line has been disconnected. On the basis of said information, the present FIR bearing number 42/2013 was registered under Section 288/304-A Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. Investigation was carried out and charge sheet was filed u/s 173 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') in the Court on 03.01.2014. Cognizance of the offence was taken on 25.07.2014.
3. Upon compliance of Section 207 Cr.P.C., notice was framed against the accused for offence punishable under Section 288/304A IPC on 18.09.2015 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the trial.
4. In order to prove its case, the prosecution has examined total 09 witnesses i.e.(1) ASI Krishan Pal, (2) Lal Chand/complainant, (3) HC Sanjeev, (4) Dr. Munish Wadhawan, (5) ASI Abhay Singh, (6) Inspector Pawan, (7) SI Rajbir Singh, (8) Jogender Singh Lather and (9) Avarar FIR No.42/2013 State V. Subhash Bansal Page No. 2 / 14 PS Nangloi Abbas. In brief, the deposition of prosecution witnesses is reproduced as below:
4.1. PW-1/ASI Krishan Pal deposed that on 06.02.2013 he was posted as duty officer when Ct. Sanjeev handed him rukka, he registered FIR Ex.
PW-1/A on the basis of tehrir, he made endoresemtn on rukka Ex. PW-1/B, he handed over original rukka and copy of FIR to Ct. Sanjeev to be handed over to SI Pawan for further investigation. The witness was duly cross-examined.
4.2. PW-2/Lal Chand deposed that on he with his brother was working as demolition of building with help of drilling machine, prior also he worked for accused, but some work was pending for which accused talked to him, on 02.06.2013 he went with his brother at the spot with tractor, he inquired from the owner whether electric current was running in the building and owner said that electricity has already been cut, they saw white colored pipe with some wires and again they asked accused to call electrician to cut the power supply but accused stated that there was no current in the wires, while they were doing the work his brother was electrocuted by the wires and drill machine fell down, he took his brother to Sonia Hospital, they were sent to SGM Hospital, he called at 100 number at the time of electrocution, his statement was recorded by police official Ex. PW-2/A, site plan was prepared Ex. PW-2/B at his instance, police official seized the drilling machine vide seizure memo Ex. PW-2/C, he identified dead body of his brother vide Ex. PW-2/D and received the body vide Ex. PW-2/E, he got the drill machine released on FIR No.42/2013 State V. Subhash Bansal Page No. 3 / 14 PS Nangloi superdari vide superdarinama Ex. PW-2/F. The witness correctly identified the accused, photographs of machine and tractor and of the spot (Ex. P-1 colly.). The witness was duly cross-examined.
4.3. PW-3/HC Sanjeev deposed that on 02.06.2013 he was posted as constable when Dd No. 20 A was received by HC Abhay, they went to SGM Hospital, SI Pawan prepared site plan and seized tractor and compressor machine, he prepared rukka and sent to PS to get Fir registered, he returned back to the spot after registration of FIR and handed it over to SI Pawan. Accused was then arrested. IO also seized drill machine. Case property was dpeosited at Malkhana. The witness also placed on record summoned record i.e. Register qua DD no.20A dated 06.02.2013 (Ex. PW-3/A). the witness correctly identified the accused and photographs (Ex. P-1) of the spot. During cross-examination by the State the witness corrected himself stating that the date of incident was 02.06.2013. The witness was duly cross-examined.
4.4. PW-4/Dr. Munish Wadhawan deposed that on 07.02.2013 he with Dr. Manoj Dhingra conducted post-mortem examination on body of deceased Shiv Pal, the PMR is Ex. PW-4/A, it was opined that cause of death was due to shock as a result of ante-mortem electrocution. The witness was duly cross-examined.
4.5. PW-5/ASI Abhay Singh deposed that on 06.02.2013 he was posted on emergency duty when he received DD No. 20A (Mark P-5/1) regarding non admission of injured in Sonia Hospital. He went with staff FIR No.42/2013 State V. Subhash Bansal Page No. 4 / 14 PS Nangloi to the said hospital from where injured was transferred to SGM Hospital, he collected MLC of deceased (Mark P-5/2) and forwarded information to police station, SI Pawan Kumar came to the hospital to whom MLC was handed over. Electric inspector visited the spot on 12.02.2013 at direction of IO who carried out the inspection of machine. The witness was not cross-examined despite opportunity.
4.6. PW-6/ Inspector Pawan deposed that on 06.02.2013 he was posted as PSI at PS Nangloi when DD No. 29A (Mark P6/1) was received by him, he reached Sanjay Gandhi Memorial Hospital and collected MLC (Mark P5/2) of deceased, he went to the place of incident with complainant and HC Abhay and took photographs of the site (Ex. PW-6/A), he recorded statement of complainant (Ex. PW-1/B), handed over the rukka Ex. PW-6/B to Ct. Sanjeev, Ct. Sanjeev got the Fir registered, he prepared site plan Ex. PW-2/B at the instance of complainant, took drill machine and compressor machine into possession vide seizure memo Ex. PW-3/B and PW-2/C, arrested accused vide arrest memo Ex. PW-3/A. The next day he went to SGM Hospital with Ct. Sanjeev for autopsy of deceased, he recorded statement of family members of deceased, he filed application Ex. PW-6/C for conduct of autopsy, after autopsy dead body was handed over to relatives of deceased. He moved an application Ex. PW-6/D to electric expert for examination of case property. Then he was transferred form the police station. The witness correctly identified the photographs of case property Ex. PW-6/A. The witness was duly cross-examined.
FIR No.42/2013 State V. Subhash Bansal Page No. 5 / 14PS Nangloi 4.7. PW-7/SI Rajbir Singh deposed that on 30.03.2013 he was posted as ASI at PS Nangloi when investigation of the present case was handed over to him, initial investigation was carried out by IO SI Pawan, report of electrical inspector as Mark P7/1, investigation was completed by first IO, he recorded statement of owner of building and documents of building were collected which are Ex. P7/2, thereafter he filed charge- sheet. The witness was duly cross-examined.
4.8. PW-8/Jogender Singh Lather deposed that on 17.06.2013 he was posted as Assistant Electrical Inspector at Labour Department, he forwarded inspection report dated 17.06.2013 in regard to fatal accident case of one Shivpal, report was prepared by Avarar Abbas and is Ex. PW-8/A. The witness was not cross-examined despite opportunity.
4.9. PW-9/Avarar Abbas deposed that upon receiving letter for inspection, he visited the premises on 12.02.2013 in presence of HC Abhay Singh, he prepared synopsis of inspection, later he prepared report Ex. PW-8/A, as per report electric installation was not found maintained safe by the owner, the blue conductor was accessible and exposed. The witness was not cross-examined despite opportunity.
4.10. Pursuant to recording of statement of accused u/s 294 Cr.P.C., PW/Dr. Brijesh was dropped from the list of witnesses.
5. Statement of accused was recorded u/s 313 r/w 281 Cr.P.C. on 12.10.2023 wherein all the incriminating evidence was put to accused, to FIR No.42/2013 State V. Subhash Bansal Page No. 6 / 14 PS Nangloi which he asserted his innocence and stated that he has been falsely implicated in the present case to save the owners of the building with connivance of complainant and police officials, owners are Mahesh Bajaj, Vinod Mukhija, Sunil Garg and Rajender Chaudhary, he never met the complainant and deceased, neither he talked to them for demolition of building nor was present at the time of demolition of building, in facthe was with owner of the building namely Mahesh Bajaj at his office which was at a distance of 100 meters from the building, after hearing noise he came with Mahesh Bajaj outside the building, at that time public persons were already present there, then deceased was taken to the hospital by someone and he came back home, in the evening the police officials came at his house and took him to police station, they took his signatures on blank papers. The accused chose to lead evidence in his defence.
6. At the stage of defence evidence, accused examined one witness i.e. Satish Kumar/Assistant Personal Officer, BSES, Mundka as DW-1 who placed on record the documents pertaining to the building where incident occurred. The witness was duly cross-examined.
7. At the stage of final arguments, Ld. APP for State submitted that prosecution has been able to successfully prove its case against accused beyond reasonable doubt and hence prayed that accused be convicted for the offences he is charged with.
8. Per contra, it was vehemently argued by Ld. defence counsel that prosecution has been unable to prove the negligence of accused, there are FIR No.42/2013 State V. Subhash Bansal Page No. 7 / 14 PS Nangloi serious contradictions regarding the date of incident in the charge-sheet and in the testimonies of prosecution witnesses, it is deposed by PW-2 that the owner assured that electricity line was disconnected but accused is not the owner of the building, GPA is on record qua the ownership of the building, accused has no connection with the building but only knows the owners, PW-2 also deposed that he does not know the name of owner, no receipt has been filed, no document has been filed to show that PW-2 is the brother of deceased, there were 15-20 labourers working in the building but no independent witness has been examined, even IO has admitted that accused is not the owner of the building and prayed to acquit the accused.
9. After hearing arguments and perusal of record, the appreciation of evidence and finding of this Court is as follows:
10. It is settled proposition of law that the prosecution has to prove beyond any reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. In the present case, accused Subhash Bansal has been charged with commission of offence u/s 288/304-A IPC.
FIR No.42/2013 State V. Subhash Bansal Page No. 8 / 14PS Nangloi
11. Before appreciating evidence, it would be pertinent to mention the relevant provisions:
Section 288 IPC. 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 the building, or of any part thereof, shall be punished with im- prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304A IPC. Causing death by negligence. --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.
12. In the present case, the eye-witness Lal Chand/PW-2 who is also the brother of the deceased Shiv Pal is the crucial prosecution witness. PW-2, in brief, deposed that he along with his brother (deceased) was asked by the accused to complete the demolishing work of the building, as he was earlier also employed by accused. They asked the owner of the building whether the electric current was running in the building and the owner assured that the electricity has been cut and that they should complete the work fast, then they saw a white colored pipe having some wires, he and his brother asked accused to call the electrician and cut the power supply on which accused said that there was no current, but his brother was electrocuted with that wire. He made a call at 100 number. At the SGM Hospital his brother was declared dead due to electrocution. In cross-examination, PW-2 deposed, in brief, that he does not know the FIR No.42/2013 State V. Subhash Bansal Page No. 9 / 14 PS Nangloi name of the owner of the building but accused employed him at that plot, they were working on daily wage with accused and used to take Rs. 2000/- to Rs. 2500/- daily from accused, no receipt/document was executed while receiving daily wage, they were paid in cash, the date of incident is 02.06.2013, 15-20 labours were working at that time, no written agreement was executed between him and accused but it was oral agreement, they started working at the site on the day of incident only, accused was not arrested in his presence.
13. In the deposition of PW-3/HC Sanjeev, it came on record that the witness did not check the ownership documents but upon enquiry came to know that premises belong to accused and construction work was being carried out by accused. The witness further clarified that the date of incident is 06.02.2013 and not 02.06.2013. Even otherwise, the mere confusion about date of incident being deposed as 02.06.2013 does not affect the merits of the case, in as much as the date of death of Shiv Pal and his MLC (Mark P5/2) dated 06.02.2013 and post-mortem report (Ex. PW-4/A) dated 07.02.2013 is not in dispute. Further, accused has not disputed work being carried out by complainant and his brother at the building on 06.02.2013, in fact in his statement u/s 313 Cr.P.C. accused has explained in his defence that he only knew the owners of the building where demolition work was being carried out and he was not the owner of the building nor employed complainant and his brother to work there.
FIR No.42/2013 State V. Subhash Bansal Page No. 10 / 14PS Nangloi
14. PW-6/Inspector Pawan also deposed that accused is not the owner of the building where incident occurred. PW-7/SI Rajbir Singh deposed that he recorded the statement of owner of the building and collected the documents produced by owners which is Mark P7/2. Mark PW-7/2 is electricity bill of godown at plot no. 9. 10, 11, 12, 12 khasra 36/8/2, 36/8/8, 36/4, Beena Enclave Narain Park in the name of Vinod Kumar, who is stated to be partner of the owners (as can be seen from statement u/s 161 Cr.P.C. of Mahesh Bajaj). Ex. PW-8/A is the inspection report prepared by PW-8/Jogender Singh Lather, Electrical Inspector, Labour Department and PW-9/Avarar Abbas, Assistant Electrical Inspector, Labour Department. As per the report, electric installation was not found maintained safe by the owner, the blue conductor was accessible and exposed.
15. With respect to ownership of the building where the incident occurred, PW-2/complainant deposed that he does not know the owner of the building but was employed by accused to work there. PW-3/HC Sanjeev deposed that he did not check the ownership documents but upon enquiry came to know that premises belong to accused and construction work was being carried out by accused. PW-6/Inspector Pawan also deposed that accused is not the owner of the building where incident occurred. PW-7/SI Rajbir Singh deposed that he recorded the statement of owner of the building and collected the documents produced by owners which is Mark P7/2. Further, in defence DW-1/Satish Kumar, Assistant Personal Officer, BSES brought on record few documents of the building i.e. GPA, agreement to sell, affidavit, receipt (Ex. DW-1/A colly.). The FIR No.42/2013 State V. Subhash Bansal Page No. 11 / 14 PS Nangloi application form with indemnity bond to obtain electricity connection is Ex. DW-1/B (colly.). Acknowledgment for new connection is Ex. DW-1/C(colly.). But during cross-examination the witness/DW-1 admitted the fact that the documents brought by him does not show who is the owner of the building on the date of incident.
16. Ld. Counsel for accused has vehemently argued that accused was not the owner of the building and thus prayed to acquit him. However, Section 288 IPC does not fasten the liability upon owner of the premises which were being pulled down or repaired. The said provision nowhere uses the term 'owner', in fact the word employed is 'whoever'. Meaning thereby that any person who was directly responsible to take such order with the building which was sufficient to guard against probable danger to human life from fall of the building or its part, but knowingly or negligently fails to take such order shall only be held liable for the offence u/s 288 IPC.
17. Although no concrete proof of ownership of the building has come on record, but from the testimony of prosecution witnesses particularly that of PW-6 it is clear that accused was not the owner of the said property. Now in a case where accused is not the owner of the building where incident occurred, prosecution must show in what capacity was accused directly responsible to ensure safety of the labours working to pull down a part of the said factory. Only the testimony of PW-2/complainant brings to light the fact that he was employed by accused to work in that building. But again he failed to place on record FIR No.42/2013 State V. Subhash Bansal Page No. 12 / 14 PS Nangloi any agreement of him and deceased being employed by accused for the date of incident or even prior thereto. Apart from the oral testimony of PW-2 unsupported by any cogent evidence, there is nothing on record even remotely connecting accused with the said building. Even in the statement u/s 161 Cr.P.C. of the owner of the building namely Mahesh Chand, he merely stated that the bills of the building are in name of his partner Vinod. But no statement was made by even the owner as to the role of accused in the present case. Furthermore, it is admitted by the complainant that there were 15-20 more labours working in the building, yet no such labourer was examined by prosecution to prove the involvement of accused. Thus, based on the evidence on record which suggests that accused was not the owner of the building, prosecution has miserably failed to prove in what capacity was accused responsible for any mishap that occurred while pulling down the building.
18. Further objection taken by Ld. Counsel for accused is that no document has been filed by complainant to prove that deceased was his brother. The said objection is dismissed for mere reason that a criminal proceeding can be set in motion by any person and an offence is stated to have been committed against State and not against a particular individual. Thus, there is no requirement in law for complainant to prove his relation with the deceased in order to prove the charge u/s 288/304-A IPC.
19. In criminal jurisprudence, an accused is presumed to be innocent, until proven guilty, and the burden of proving the guilt of accused solely rests upon the prosecution by leading positive evidence. The guilt of accused is not to be proved by mere preponderance of probabilities but it FIR No.42/2013 State V. Subhash Bansal Page No. 13 / 14 PS Nangloi has to be proved beyond all reasonable doubts. Suspicion, howsoever grave, cannot take the place of proof. In the present case, the evidence apparent on record is insufficient for bringing home the guilt of the accused and the prosecution story suffers from material infirmities, as already observed hereinabove.
20. Accordingly, accused Subhash Bansal S/o Mohan Lal Bansal is held 'not guilty'. Accused is thus acquitted of the charges levelled against him u/s 288/304-A IPC.
Announced in open Court on 16th day of December, 2024 Digitally [AAKANKSHA] signed by Judicial Magistrate First Class-05(West)/ AAKANKSHA THC/Delhi/16.12.2024 AAKANKSHA Date:
2024.12.16 03:54:49 +0530 FIR No.42/2013 State V. Subhash Bansal Page No. 14 / 14 PS Nangloi