Delhi District Court
State vs Sarfudeen Etc. (6-B) (Oldest Case) on 24 December, 2024
IN THE COURT OF ADDL. SESSIONS JUDGE-03, (CENTRAL): TIS
HAZARI COURTS, DELHI
PRESIDED BY: SH. SANJAY SHARMA-II, DHJS
SC No. : 27671/2016
FIR No. : 208/2004
Under Section : 304/308/34 IPC
PS : Sadar Bazar
CNR No. : DLCT01-000074-2006
State Versus (1) Sarfuddin
S/o Mr. Abdul Karim
R/o Village Agras, PS Fatehganj
District Bareilly, U.P.
(2) Mohd. Umar
S/o Mr. Abdul Rashid
R/o Bartan Market, Sadar Bazar
Delhi
(3) Karan Kumar Arora
S/o Mr. Kasturi Lal Arora
R/o AD-108B, Pitampura, Delhi
(4) Jagdish Chander
S/o Late G.R. Arya
R/o B-141/2, DDA Flats, East of
Kailash, New Delhi
(5) Qaiser Javed
S/o Mr. Azizullah Siddiqui
R/o I-59, Batla House
Jamia Nagar, New Delhi-110025
(6) Satya Narain (now deceased)
S/o Mr. Lachhi Ram
R/o 419, Deepali, Pitampura
Delhi
Date of Institution : 20.10.2007
Date of Arguments : 27.07.2024
Date of Judgment : 24.12.2024
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 1 of 51
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that in April and May, 2004, the accused Sarfuddin and Mohd. Umar carried out construction on 1st and 2nd floor of Building No. 5079-81, Rui Mandi, Sadar Bazar, Delhi (In short 'the said building') in such a manner and under such circumstances that they had the knowledge that such construction was highly dangerous and likely to cause death or grievous injury to human beings and consequently, 1st and 2nd floor of the said building collapsed on 03.05.2004 leading to death of (1) Manoj S/o Mr. Badri Shah, (2) Abdul Mazid S/o Mr. Per Bux, (3) Anil S/o Mr. Sarju Rana, (4) Murari S/o Mr. Sanudas, (5) Rameshwar @ Kameshwar S/o Mr. Somdas, (6) Daneshwar Pandit S/o Mr. Sobran Pandit and (7) Ram @ Singh @ Itwari S/o Sh. Tahal Shah and grievous injury to Surender S/o Mr. Gurdayal Pandit and as such, they committed offences punishable under Section 304 Part II and 308 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. It is further case of the prosecution that the accused Satya Narain (now deceased) was a caretaker / real owner of the said building and he entrusted construction of the said building to the accused Sarfuddin and Mohd. Umar without obtaining sanction plan from Municipal Corporation of Delhi (MCD) and failed to periodically inspect construction work and ensure proper safety measures and consequently, the said building collapsed on 03.05.2004 on account his negligent act and omission leading to death of the said 7 persons and grievous injury to the said person. As such, he committed offences punishable under Section 304A and 338 IPC.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 2 of 51
3. It is further case of the prosecution that the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed, MCD Officials, committed acts and omissions to prevent unauthorized construction in the said building despite having knowledge that the said construction was highly dangerous and could result in death of human beings and consequently, 1st and 2nd floor of the said building collapsed on 03.05.2004 leading to death of the said 7 persons and grievous injury to the said person. As such, they committed offences punishable under Section 304A and 338 IPC. THE CHARGE-SHEET:
4. On 03.05.2004 at about 03.15 p.m., an information was received, through Police Control Room (PCR), that Building No. 5084-86, Rui Mandi, Sadar Bazar, Delhi had collapsed and five labors were buried under debris. On being instructed, SI Rajbir Singh, Division Officer alongwith Ct. Surender reached at the place of incident. Insp. R.S. Adhikari, SHO, PS Sadar Bazar with his staff was also present there. The contractor was raising construction without permission of MCD with sub-standard building material with knowledge that it could cause loss of life of labors. 2nd and 3rd floor of the said building had completely collapsed. The accused Sarfuddin, sub-contractor, was present at the place of incident. However, the accused Mohd. Umar, contractor, had absconded from there. The place of incident was inspected. ASI Jai Bhagwan collected MLCs of the deceased persons and injured and handed over them to SI Rajbir Singh. No eye witness was found at the place of incident. Crime Team and Photographer also reached there. Officials from Delhi Fire Service, Disaster Management, SDM, Sadar Bazar and MCD reached there and started search and rescue operation.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 3 of 51
5. On the basis of DD No. 14A, MLCs and spot inspection, SI Rajbir Singh prepared rukka and pursuant thereto, a case under Section 304/308/34 IPC was registered. SI Rajbir Singh investigated the case. Officials from Forensic Science Laboratory (FSL), Rohini, Delhi inspected the place of incident.
As instructed by them, SI Rajbir Singh seized exhibits from debris of the collapsed building on 04.05.2004. During search and rescue operation, two more dead bodies were recovered from debris on 05.05.2004 and they were sent to Aruna Asaf Ali Govt. Mortuary, Subzi Mandi, Delhi for post-mortem. SI Rajbir Singh recorded statement of injured Surender and other persons. He prepared unscaled site plan. He arrested the accused Sarfuddin.
6. On 03.06.2004, investigation was transferred to Anti Homicide Section, Crime Branch, vide PHQ Order No. 27578- 83/C&T (AC-III) dated 26.05.2004. On receipt of file, Insp. Ajay Sharma visited the place of incident. He found that collapsed premises was 'Property No. 5079-81, Rui Mandi, Sadar Bazar, Delhi' instead of 'Property No. 5084-5086' as mentioned in PCR call and rukka. He inspected the place of incident. He observed that fresh construction on old brick walls was carried out up to third floor which could not sustain the load and collapsed and the construction work was done rashly and hurriedly with sub- standard material, and the constructed pillars were of bricks and there was no RCC work and therefore, the pillars could not sustain weight of fresh construction and roofs of the said three storeyed building and collapsed. The wall adjacent to the mosque was partly extended outside the old existing wall to adjust ' Burj' of the mosque and a gap between the mosque and the wall of the said building could be seen.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 4 of 51
7. The charge-sheet further stated that the contractor had kept unwanted and extra material on the structure which was bound to collapse and he had not availed service of qualified engineer to supervise the construction work. The construction work had been done in a very short span of period without observing safety measures. The contractor had not obtained permission from MCD and the construction on upper floor continued without allowing construction on first floor to dry. The girders were placed on brick pillars and they were not welded together. The contractor was attempting to complete construction within shortest possible time with sub-standard material without observing safety measures as there was no sanction to raise the construction.
8. During investigation, it revealed that Sh. Bakshish Singh was carrying construction in adjacent Building No. 5082, Rui Mandi, Sadar Bazar, Delhi and Sardar Jaswinder Singh was carrying construction in Building No. 5083-84. However, the said buildings did not collapse. It further revealed that the said building and adjoining buildings were 2-3 storeyed since many decades. The said building was owned by Smt. Savita Rani and Smt. Kamlesh Gupta. However, the accused Satya Narain was carrying business in the name and style ' M/s. Lachchhi Ram & Sons' on its ground floor since two decades.
9. During investigation, it surfaced that on 10.04.2004, SI Rajbir Singh, Division In-Charge had visited the place of incident pursuant to a complaint filed by maulvi regarding unauthorized construction in the said building who found that the construction in the said building had just started whereas construction in the adjoining premises was in its nascent stage.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 5 of 51
10. The charge-sheet further stated that SI Rajbir Singh met the accused Mohd. Umar who stated that he had applied for permission to carry out construction work and he would be obtaining it shortly. SI Rajbir Singh placed report regarding unauthorized construction in the said building before Insp. R.S. Adhikari, SHO, PS Sadar Bazar on 10.04.2004 who sent the report to MCD on 12.04.2004. On 19.04.2004, the accused Karan Kumar Arora had received the said report.
11. On 29.04.2004, SI Rajbir Singh again visited the said building and found that 1st and 2nd floor had already been constructed and construction work on 3 rd floor was in full swing. He immediately reported the matter to Insp. R.S. Adhikari, SHO, PS Sadar Bazar who sent a reminder to MCD on 30.04.2004. The said reminder would have reached MCD after 03.05.2004 as the intervening days were Saturday and Sunday.
12. The charge-sheet further stated that the accused Mohd. Umar was the contractor and the accused Sarfuddin was sub-contractor. The accused Mohd. Umar was raising construction in the said building for an amount of Rs. 12,00,000/-. On 15.04.2004, the accused Satya Narain paid an amount of Rs. 5,00,000/- to him. The accused Mohd. Umar surrendered on 04.05.2005 after dismissal of his application for pre-arrest bail by Hon'ble High Court of Delhi on 04.05.2005.
13. The charge-sheet further stated that it is evident from the statements of SI Rajbir Singh and ASI Jai Bhagwan that the accused Mohd. Umar had started dismantling old existing structure on 1st floor of the said building and there was no construction in the said building on 10.04.2004 and 11.04.2004 and the debris of old structure was being removed.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 6 of 51
14. The charge-sheet further stated that initially, the accused Mohd. Umar carried out construction in a phased manner i.e. breaking of 1st floor, raising of pillars and plastering / removal of old walls / roof of 1st floor. The construction activity was carried out round the clock in four shifts involving 35 - 40 labors who were paid 1½ wages. The brick pillars were erected from the roof of the first floor instead of from the ground floor. The building material was kept on newly constructed roof of the said building for construction of upper floors and he did not allow fresh construction to dry. The accused Mohd. Umar used cement and sand in the ratio of 1:10. The mason and labors warned him that such sub-standard material may cause collapse of the building. However, the accused Mohd. Umar scolded them.
15. As regards the accused Satya Narain, the charge-sheet stated that he was owner-cum-caretaker of the said building and he had entered into a verbal agreement with the accused Mohd. Umar and paid an amount of Rs. 5,00,000/- in advance for raising construction. However, the accused Mohd. Umar had shown him a forged written permission of MCD. There was no incriminating material against the accused Satya Narain and he was kept in Column No. 2 of the charge-sheet.
16. The charge-sheet stated that the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed were Junior Engineer (JE), Assistant Engineer (AE) and Executive Engineer (EE) respectively in Building Department, S.P. Zone, MCD and they were responsible to prevent unauthorized constructions in the said area. Pursuant to information qua unauthorized construction, the accused Qaiser Javed and Jagdish Chander issued direction to take immediate necessary action and place ATR within 3 days, vide note dated 15.04.2004.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 7 of 51
17. However, the accused Karan Kumar Arora visited the place of incident on 19.04.2004 and reported that ' on inspection, no building activity was seen in premises No. 5085- 5086, Rui Mandi, Sadar Bazar, Delhi and Property No. 5084 was an old existing building and renovation work was found in progress on 1st floor which is not actionable under 6.4.1 of Building Bye-laws of MCD'. The accused Jagdish Chander issued written instruction to keep strict watch on the said building and take all possible necessary action, as per DMC Act, if any unauthorized construction was raised by the owner / builder. On 26.04.2004, the accused Karan Kumar Arora again visited the place of incident and inspected the Property No. 5085- 86 and reported that no building activity was seen there. On inspection of Property No. 5081-84, the accused Karan Kumar Arora stated that only renovation work was in progress as intimated already and owner of Building No. 5079-80 had carried out repair work on ground floor and 1 st floor which was not actionable, as per Building Bye-laws.
18. The charge-sheet further stated that Junior Engineer, Assistant Engineer and Executive Engineer were instructed to inspect the area in 7 days, 15 days and 30 days respectively, as per 'Manual of Instructions on Unauthorized Constructions', vide letter No. D/476/Addl. Com. (E)/2001 dated 20.08.2001. The unauthorized construction in the said building had taken place during tenure of the said officials who had to visit the construction site on the days, as stated above. The said officials should have expedited their visits to the place of incident and take action to stop / seal / demolish the ongoing construction, in accordance with provisions of DMC Act.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 8 of 51
19. The charge-sheet further stated that the accused Mohd. Umar accelerated unauthorized construction due to non- visit of the said officials and it was an act of negligence on their part. However, no direct evidence surfaced during investigation to connect them with offences in question. Therefore, they are placed in Column No. 2 of the charge-sheet.
20. A Board of Building Experts comprising Mr. M.M. Das, Supt. Er. (B), HQ and Mr. H.K. Sharma, Exe. Er., PWD-II was constituted by Govt. of NCT of Delhi to identify the reasons of collapse of the said building and other aspects related to its construction. The said experts inspected the said building on 26.05.2005.
21. Insp. Ajay Sharma obtained report from CFSL, Chandigarh regarding quality of building material wherein it was opined that ratio of cement and sand was 1:10 in the mixture used for construction of the said building. He collected report from experts from FSL, Rohini regarding inspection of the said building conducted on 04.05.2005. According to the report, the ground floor and 1st floor of the said building appeared to be old whereas 2nd and 3rd floor of the said building appeared to be newly constructed / under construction and the roof of 2nd and 3rd floor was made of 'flat stones' and 'steel beams' which was supported by two brick pillars each on right and left side.
22. On the basis of report of SI Rajbir Singh and CFSL, Chandigarh and statement of the witnesses, Insp. Ajay Sharma concluded that the accused Mohd. Umar was proceeding with construction with sub-standard material in undue haste to save time and money leading to collapse of the said building and death of seven persons and grievous injury to one person.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 9 of 51
23. Insp. Ajay Sharma charge-sheeted the accused Mohd. Umar and Sarfuddin under Section 304/308/34 IPC. However, he placed the accused Karan Kumar Arora, Jagdish Chander, Qaiser Javed and Satya Narain for want of sufficient evidence in Column No. 2 of the charge-sheet. COMMITTAL PROCEEDINGS:
24. Vide order dated 05.10.2007, Jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
25. Vide order dated 06.04.2009, the accused Mohd. Umar and Sarfuddin were charged for committing offences punishable under Section 304 Part II and 308 IPC and the accused Karan Kumar Arora, Jagdish Chander, Qaiser Javed and Satya Narain were charged for committing offences punishable under Section 304A and 338 IPC to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
26. The prosecution examined 46 witnesses, as under:
The witnesses Description of the witnesses PW-1 Surender The injured PW-2 Rajender Kumar Neighbor PW-3 Jai Prakash Husband of Smt. Savita Rani, co-owner of the said building PW-4 Mahavir Singh Clerk of the accused Satya Narain PW-5 Hem Chand Neighbor PW-6 Smt. Kamlesh Gupta Co-owner of the said building PW-7 Sameer Chawla MCD Contractor PW-8 Pradeep Kumar MCD Contractor PW-9 Gajender Kumar UDC, MCD, Paharganj Zone, Delhi PW-10 Hanuman Employee of the accused Satya Narain PW-11 Triveni Saw Mason / Brother of the deceased Itwari Saw PW-12 Smt. Savita Co-owner of the said building FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 10 of 51 PW-13 Hari Om Gupta Neighbor PW-14 Balvinder Singh Iron and steel supplier PW-15 Rajeev Arora Building material supplier PW-16 Dr. B.K. Sharma Autopsy Surgeon PW-17 Dr. Akash Jhanjee Autopsy Surgeon PW-18 Ram Kishan UDC, Property Tax Department, MCD, Sadar Bazar, Paharganj Zone, Delhi PW-19 Parsu Ram Singh Sr. Scientific Officer (Physics), FSL, Rohini PW-20 SI Hukam Singh DD Writer, PS Sadar Bazar PW-21 SI Dharampal Singh Duty Officer, PS Sadar Bazar PW-22 SI Jai Bhagwan Reached at the place of incident on receipt of PCR Call and collected MLCs PW-23 HC Sanjeev Kumar DD Writer, PS Sadar Bazar PW-24 Kewal Krishan Duty Constable at Hindu Rao Hospital PW-25 Ct. Lakhwinder Photographer, Crime Team (North District) PW-26 Ct. Manik Sathe Accompanied ASI Jai Bhagwan PW-27 SI Saket Kumar Got post-mortem conducted PW-28 HC Omender Pal Accompanied SI Saket Kumar PW-29 Ct. Surender Taken rukka to PS for registration of FIR PW-30 HC Rakesh Kumar Seizure witness qua building material PW-31 Ct. Vijay Kumar Conducted videography PW-32 K.C. Meena Executive Engineer (Building), Sadar, Paharganj Zone PW-33 Desh Raj Singh Sub-Registrar-III, Asaf Ali Road, Delhi PW-34 Charanjit Singh Sub-Registrar-I, Kashmere Gate, Delhi PW-35 HC Radha Krishnan Deposited sealed parcels with CFSL PW-36 HC Sonu Kaushik Draftsman, Crime Branch, PHQ PW-37 Insp. Rajbir Singh 1st Investigating Officer PW-38 Insp. R.S. Adhikari SHO, PS Sadar Bazar PW-39 Insp. Sudhir Singh Arrest witness qua the accused Mohd. Umar PW-40 HC Sri Bhagwan Collected sealed parcels from CFSL PW-41 M.M. Das Member of Expert Committee PW-42 H.K. Sharma Member of Expert Committee PW-43 Durga Prasad Junior Scientific Officer (Physics), CFSL PW-44 A.C. Garg Off. Executive Engineer, Sadar Bazar Zone PW-45 Insp. Ajay Sharma 2nd Investigating Officer PW-46 Dr. M.K. Panigrahi Proved post-mortem reports FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 11 of 51 LIST OF PROSECUTION DOCUMENTS:
27. The prosecution relied on the documents, as under:
Exhibit Description of the documents
Ex.PW9/A Forwarding letter alongwith requisite information Mark
PW9/A sent by MCD to Insp. Ajay Sharma
Mark PW9/A Manual of Instructions of Unauthorized Construction Ex.PW9/B Information regarding tenure of the accused persons Qaiser Javed, Jagdish Chander and Karan Kumar Arora Ex.PW16/A Post-mortem report qua the deceased Dhaneshwar Ex.PW17/A Post-mortem report qua Ram Singh @ Itwari Ex.PW18/A Information furnished by MCD regarding recorded owners of Property No. 5079-81, 5082 and 5083-84, Rui Mandi, Sadar Bazar, Delhi Ex.PW19/A Crime Scene Visit Report prepared by FSL, Rohini, Delhi Ex.PW20/A DD No. 14A dated 03.05.2004 at 03.15 p.m. Ex.PW20/B DD No. 15A dated 03.05.20004 at 03.55 p.m. Ex.PW20/C DD No. 17A dated 03.05.2005 at 04.55 p.m. Ex.PW21/A FIR No. 208/2004 under Section 308/304/34 IPC registered on 03.05.2004 at 07.30 p.m. at PS Sadar Bazar Ex.PW22/A Personal search memo of unknown deceased Ex.PW22/B Personal search memo of unknown deceased Ex.PW23/A DD No. 47B dated 03.05.2004 at 05.45 p.m. Ex.PW25/1 Photographs of the place of incident to Ex.PW25/8 Ex.PW25/9 Negatives of photographs of the place of incident to Ex.PW25/16 Ex.PW27/A Dead body handing over memo qua the deceased Ram Singh Ex.PW27/B Identification of dead body of the deceased Ram Singh Ex.PW27/C Dead body handing over memo of the deceased Dhaneshwar Ex.PW27/D Identification of dead body of the deceased Dhaneshwar Ex.PW27/E Identification of dead body of the deceased Dhaneshwar Ex.PW27/F Request letter for post-mortem of the deceased Dhaneshwar Ex.PW29/A Arrest memo of the accused Sarfuddin Ex.PW29/B Personal search memo of the accused Sarfuddin Ex.PW29/C Spot seizures dated 03.05.2004 Ex.PW30/A Spot seizures dated 04.05.2004 (after visit of FSL, Rohini) FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 12 of 51 Ex.PW31/A CD of videography of the place of incident Ex.PW32/A Forwarding letter regarding action taken by MCD against unauthorized construction in Property No. 5079 to 5081, Rui Mandi, Sadar Bazar, Delhi Ex.PW32/B Certified copy of file pertaining to action taken against unauthorized construction in Property No. 5079 to 5081, Rui Mandi, Sadar Bazar, Delhi Ex.PW33/A Reply of Sub-Registrar-III, Asaf Ali Road, Delhi regarding owner of Property No. 5082, Rui Mandi, Sadar Bazar, Delhi Ex.PW33/B Certified copy of sale deed qua Property No. 5082, Rui Mandi, Sadar Bazar, Delhi Ex.PW34/A Forwarding report of Sub-Registrar-I, Kashmere Gate dated 10.06.2004 qua Property No. 5082, Rui Mandi, Sadar Bazar, Delhi Ex.PW34/B Forwarding report of Sub-Registrar-I, Kashmere Gate dated 11.06.2004 qua Property No. 5079-81, Rui Mandi, Sadar Bazar, Delhi Ex.PW34/C Certified copy of sale deed qua Property No. 5079-81, Rui Mandi, Sadar Bazar, Delhi Ex.PW36/A Scaled site plan of the place of incident Ex.PW37/A Rukka Ex.PW37/B Rough sketch of the place of incident dated 03.05.2004 Ex.PW37/C Rough sketch of the place of incident dated 11.05.2004 Ex.PW37/X Dead body handing over memo qua the deceased Manoj Ex.PW37/X1 Dead body handing over memo qua the deceased Murari and Kameshwar Ex.PW37/X3 Dead body handing over memo qua the deceased Anil Ex.PW37/X4 Dead body handing over memo qua the deceased Ram Singh Ex.PW37/X5 Identification of the deceased Abdul Karim, Manoj, Murari, Anil and Rameshwar Ex.PW37/X6 Identification of the deceased Abdul Karim, Manoj, Murari, Anil and Rameshwar Ex.PW37/Y Identification of the deceased Kameshwar Ex.PW37/Y1 Identification of the deceased Kameshwar Ex.PW37/Y3 Dead body handing over memo qua deceased Kameshwar Ex.PW37/Y4 Identification of the dead body of the deceased Manoj Ex.PW37/Y5 Dead body handing over memo qua the deceased Manoj Ex.PW37/Y6 Identification of the dead body of the deceased Abdul Majid Ex.PW37/Y7 Dead body handing over memo qua deceased Abdul Majid Ex.PW37/Y8 Identification of the dead body of the deceased Abdul Karim FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 13 of 51 Ex.PW37/Y9 Identification of the dead body of the deceased Abdul Karim Ex.PW37/Y10 Identification of the dead body of the deceased Murari Ex.PW37/Y11 Identification of the dead body of the deceased Murari Ex.PW37/Y12 Dead body handing over memo qua the deceased Murari Ex.PW38/A Intimation dated 10.04.2004 by SHO, PS Sadar Bazar regarding unauthorized construction in Property No. 5084, 5085 and 5086, Rui Mandi, Sadar Bazar, Delhi Ex.PW38/B Reminder dated 29.04.2004 sent by SHO, PS Sadar Bazar regarding unauthorized construction in Property No. 5080 to 5086, Rui Mandi, Sadar Bazar, Delhi Ex.PW39/A Arrest memo of the accused Mohd. Umar Ex.PW39/B Personal search memo of the accused Mohd. Umar Ex.PW39/C Disclosure statement of the accused Mohd. Umar Ex.PW41/A Report of inquiry conducted by Board of Experts Ex.PW41/B Forwarding letter qua report of Expert Committee Ex.PW43/A Report of CFSL, Chandigarh Ex.PW44/A1 Record pertaining to demolition charges qua Property No. to 5079-81, Rui Mandi, Sadar Bazar, Delhi Ex.PW44/A8 Ex.PW44/B1 Demand of demolition charges qua Property No. 5081-84, to Rui Mandi, Sadar Bazar, Delhi Ex.PW44/B3 Ex.PW44/C Office order dated 20.02.2004 regarding posting of the accused Jagdish Chander in Ward No. 122 Ex.PW44/D1 Demand of demolition charges qua Property No. 5081-84, to Rui Mandi, Sadar Bazar, Delhi Ex.PW44/D3 Ex.PW44/E Office order dated 11.08.2003 regarding posting of the accused Karan Kumar Arora in Ward No. 122 Ex.PW45/A Letter written to Sub-Registrar, Kashmere Gate to provide sale deed qua Property No. 5082, Rui Mandi, Sadar Bazar, Delhi Ex.PW45/B Letter written to Sub-Registrar, Kashmere Gate to provide sale deed qua Property No. 5079-81, Rui Mandi, Sadar Bazar, Delhi Ex.PW45/C Letter written to Sub-Registrar, Kashmere Gate to provide details of attorney holders qua Property No. 5083-84, Rui Mandi, Sadar Bazar, Delhi Ex.PW45/D Letter written to Sub-Registrar, Kashmere Gate to provide sale deed qua Property No. 5083-84, Rui Mandi, Sadar Bazar, Delhi FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 14 of 51 Ex.PW45/E Letter written to MCD to provide information qua officials responsible to prevent unauthorized construction in Sadar Bazar, Delhi Ex.PW45/F Letter written to MCD to provide details of owners of Property No. 5079, 5080, 5081, 5082, 5083 and 5084, Rui Mandi, Sadar Bazar, Delhi Ex.PW45/G Pointing out memo qua shop from where the accused Mohd.
Umar purchased iron Ex.PW45/H Pointing out memo qua shop from where the accused Mohd.
Umar purchased building material Ex.PW45/I Letter written to DCP (HQ) for constitution of Board of Experts for inspection of the collapsed building Ex.PW45/J Letter written to GNCT of Delhi for constitution of Board of Experts for inspection of the collapsed building Ex.PW45/X1 Photographs of the place of incident to Ex.PW45/X30 Ex.PW45/Y1 Negatives of photographs of the place of incident to Ex.PW45/Y30 Ex.PW46/X1 Post-mortem report qua Rameshwar @ Kameshwar Ex.PW46/X2 Post-mortem report qua Manoj Ex.PW46/X3 Post-mortem report qua Abdul Majid Ex.PW46/X4 Post-mortem report qua Anil Ex.PW46/X5 Post-mortem report qua Murari Ex.CD-X1 to MLCs of the deceased Rameshwar and four unknown Ex.CD-X5 persons Ex.CD-X6 MLC of the injured Surender EXAMINATION OF THE ACCUSED PERSONS:
28. Incriminating circumstances appearing in evidence were explained to the accused persons, under section 313 Cr.P.C.
They denied each and every circumstance appearing in evidence against them. They stated that they have been falsely implicated in this case. They stated that the prosecution witnesses have falsely deposed against them. They pleaded innocence.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 15 of 51 PLEA OF DEFENCE:
29. The plea of the accused Sarfuddin is that he was not a sub-contractor. His plea of defence is, as under:
"Q. 58: Why this case is made against you? Ans: It is a false case. On the day of incident, I was having tea at a restaurant near the place of occurrence. On coming to know regarding the fact of collapse of a building, I went to the spot as one of my known persons from my village namely, Abdul Karim son of Peer Baksh was working as a labourer there. When I went there, I tried to rescue the people buried under the debris including the abovesaid Abdul Karim. In the meantime, police came there and apprehended me. I told the above facts to the police but still I was falsely implicated in the present case. I do not know any of the accused persons prior to the start of trial in this case. I had no connection whatsoever with accused Mohd. Umar. I never worked in any capacity with accused Mohd. Umar at any point of time."
30. The plea of the accused Mohd. Umar is that the accused Sarfuddin was not a sub-contractor. He stated that he never worked as a contractor at any point of time. He stated that he had surrendered at the office of Crime Branch, Prashant Vihar and thereafter, he was arrested in the present case. He stated that police had taken him on remand.
31. His plea of defence is, as under:
"Q. 66: Why this case is made against you? Ans: It is a false case. I have nothing to do with the construction of the collapsed building. I never worked as a building contractor and I do not have any nexus with the persons involved in the construction of the collapsed building. On the day of incident, I was in occupation as a tenant in property No. 5083 and 5084, Rui Mandi, Sadar Bazar, Delhi and was running a business / shop in the name and style of Umar and Sons wholesaler and retailer of Foodgrains. I was a tenant of Radha Raman and Sri Krishan R/o Shahdara who were the owners of property No. 5083-84, Rui Mandi, Sadar Bazar.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 16 of 51 SI Rajbir Singh I.O. of the present case was enjoying very cordial relations with Radha Raman and Sri Krishan. Said Radha Raman and Sri Krishan wanted me to vacate the property and therefore, SI Rajbir Singh in connivance with abovesaid Radha Raman and Sri Krishan fabricated the documents and information in order to falsely implicate me. My thumb impressions / signatures were obtained on various blank and printed papers which have later on been fabricated as various documents to falsely implicate me in this case. I had nothing to do with the alleged incident."
32. The plea of the accused Karan Kumar Arora is that he was put under suspension and later on, after detailed departmental enquiry, he was exonerated from all charges. He stated that complaint Ex.PW38/A was received in his office and accordingly, he did needful and submitted report. He stated that complaint Ex.PW38/B was not received in his office and more particularly, by him. He stated that the police, after detailed investigation, placed him in Column No. 2.
33. His plea of defence is, as under:
"Q. 10: Do you want to say anything else? Ans: I am innocent. I was given the additional charge of this area and on number of occasions, I requested to my senior officers that the work assigned to me was beyond control. The area assigned to me was congested and large and it was very difficult to inspect each and every lane / gali of the area."
34. The plea of the accused Jagdish Chander is that he was put under suspension and still facing the departmental enquiry. He stated that complaint Ex.PW38/A was received in his office and accordingly, he did needful. He stated that complaint Ex.PW38/B was not received in his office and more particularly, by him. He stated that the police, after detailed investigation, placed him in Column No. 2.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 17 of 51
35. His plea of defence is, as under:
"Q. 10: Do you want to say anything else? Ans: I am innocent. I was posted in Maintenance Division. However, I was also given the additional charge of Building Deptt. of this zone whereas as per the official record, three Asstt. Engineers were required to be posted and on number of occasions, I requested to my senior officers that the work assigned to me was beyond control. The area assigned to me was congested and large and it was very difficult to inspect each and every lane / gali of the area."
36. The plea of the accused Qaiser Javed is that complaint Ex.PW38/A was received in his office and accordingly, he did needful and marked it to A.E. for taking necessary action and report. He stated that complaint Ex.PW38/B was not received in his office and more particularly, by him. He stated that the police, after detailed investigation, placed him in Column No. 2.
37. His plea of defence is, as under:
"Q. 10: Do you want to say anything else? Ans: I am innocent. I was posted in Building Deptt. of this zone. There was shortage of staff of AE and JE in our deptt. for looking after the complete area and in this regard on number of occasions, I made oral and written requests to my seniors. The area assigned to me was congested and large and it was very difficult to inspect each and every lane / gali of the area."
38. The plea of the accused Satya Narain was that contract for construction with material and other necessary permission from MCD of the collapsed building was given to the accused Mohd. Umar. He stated that after assignment of contract, he rarely visited the place of incident. He stated that after investigation, he was placed in column No. 2. He stated that he was running a shop at ground floor of the said building. He stated that he made part payment of Rs. 5,00,000/- to Mohd. Umar. FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 18 of 51
39. His plea of defence was, as under:
"Q. 68: Do you want to say anything else? Ans: I have been falsely implicated. I am innocent. After the detailed investigation, police filed the challan and I was put in Khana No. 2 with the observation that during the investigation, no evidence is available against me. The property bearing No. 5079-81 belongs to Smt. Kamlesh Gupta and Smt. Savita Rani and they are / were the owner. I was running a shop at the ground floor of the premises for sale and purchase of grains. The contract for construction was given to builder Mohd. Umar with material and necessary permission for competent authority like MCD and as a part payment Rs. 5 lacs were paid to him. The Hon'ble Delhi High Court on its own motion (writ petition (C) No. 7836/2004 issued notice to the builder Mohd. Umar, the owners of the premises no. 5079-81, 5082, 5083-84. MCD officials, Delhi Govt., police and various other competent authorities. That all collectively on humanitarian ground deposited Rs. 21 lac with Hon'ble High Court without admitting any negligence in action, wrong or tortuous act or crime and the and the same was disbursed to the decedents / relatives of the deceased."
DEFENCE EVIDENCE:
40. The defence examined following witnesses:
Sl. No. Description Deposition
1. DW-1 D.S. Dutta He is father of friend of the accused Mohd. Umar. He deposed that the accused Mohd. Umar was running a grain shop in Rui Mandi, Sadar Bazar, Delhi and he was not involved in any construction business.
2. DW-2 Prem Singh, He brought order No. 655/Vigilance/ Asstt. Vigilance Officer, 13938-44 dated 11.12.2008 Ex.DW2/A DDA, INA, New Delhi qua JE K.K. Arora.
3. DW-3 Nahar Singh, He brought register pertaining to Asstt. Dir., Horticulture, booking of marriage park in Pitampura MCD Zonal Office, for 02.05.2004 by the accused K.K. Sector-5, Rohini, Delhi Arora Ex.DW3/A.
4. DW-4 Om Prakash, LDC, He brought letters Ex.DW4/1 to Bldg. Deptt., Sadar, Pahar Ex.DW4/10 written by EE[B]/SPZ Ganj Zone, MCD, Delhi from 22.08.2003 to 28.04.2004.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 19 of 51
5. DW-5 K.K. Arora He deposed that he had informed his senior officers that the area assigned to him was quite large. He relied on letters Ex.DW4/1 to Ex.DW4/9.
6. DW-6 Tilak Raj Luthra He is elder brother of friend of the accused Mohd. Umar. He deposed that the accused Mohd. Umar was engaged in sale of rakhi, pichkari etc. and earlier, he was carrying business of food grains from a shop in Sadar Bazar
7. DW-7 Qaiser Javed He relied on letters Ex.DW4/1 to Ex.DW4/9 and letters Ex.DW7/A to Ex.DW7/E. ABATEMENT OF PROCEEDINGS QUA THE ACCUSED SATYA NARAIN:
41. The accused Satya Narain expired on 29.11.2017.
Proceedings were abated qua him, vide order dated 06.03.2018. APPEARANCE:
42. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. Mukesh Kalia, Ld. Counsel for the accused Sarfuddin and Mohd. Umar, Mr. S.N. Khan, Ld. Counsel for the accused Karan Kumar Arora and Jagdish Chander, and Mr. Javed Hashmi, Ld. Counsel for the accused Qaiser Javed, and examined the evidence, oral and documentary, and perused written arguments filed by the accused persons. CONTENTIONS OF THE PROSECUTION:
43. Ld. Addl. PP for the State contended that the prosecution has adduced cogent and credible evidence to prove the charges against the accused persons. He contended that the prosecution proved that the accused Mohd. Umar and Sarfuddin were contractor and sub-contractor respectively and they were raising construction in the said building. He contended that the prosecution proved that the accused Satya Narain paid part payment of Rs. 5,00,000/- to the accused Mohd. Umar.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 20 of 51
44. Ld. Addl. PP for the State contended that the accused Mohd. Umar and Sarfuddin were raising construction on 2nd and 3rd floor of the said building on an old existing structure with sub-standard material without a sanction plan. He contended that the accused Mohd. Umar and Sarfuddin had employed around 35 / 40 labors working in four shifts in order to complete the construction in shortest possible time. He contended that the accused Mohd. Umar and Sarfuddin were not allowing fresh construction to dry and kept building material on the roof of the new construction He contended that old brick walls could not sustain the weight of fresh construction up to 3 storey thereon and consequently, the said building collapsed. He contended that the accused Mohd. Umar and Sarfuddin were raising the said construction on pillars made of bricks and not of RCC and the said pillars could not sustain the load of fresh construction leading to collapse of 1st to 3rd floor of the said building. He contended that the accused Mohd. Umar and Sarfuddin did not avail service of any qualified engineer to supervise the construction. He contended that the accused Mohd. Umar and Sarfuddin did not use any safety measures / gears to protect the labors employed in construction. He contended that construction in the neighboring buildings i.e. 5082, Rui Mandi, Sadar Bazar, Delhi and 5083-84, Rui Mandi, Sadar Bazari, Delhi was in progress. However, the said buildings did not collapse. He contended that PW-37 SI Rajbir Singh visited the site on 10.04.2004 in response to a complaint filed by Mr. Abdul Karim, a maulvi of the neighboring mosque and the accused Mohd.
Umar was found present at the site who had stated that he would be obtaining sanction for the said construction.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 21 of 51
45. Ld. Addl. PP for the State contended that PW-38 Insp. R.S. Adhikari, SHO, PS Sadar Bazar sent a complaint to MCD regarding unauthorized construction in the said building on 12.04.2004. He contended that the accused Karan Kumar Arora visited the site of construction. However, he reported that only renovation work was in progress. He contended that PW-38 Insp. R.S. Adhikari sent reminder to MCD, vide letter dated 29.04.2004 Ex.PW38/B. He contended that 2nd and 3rd floor of the said building were constructed within short span of time and it shows that the construction was being raised in haste without observing structural norms and safety of the labors. He contended that report of CFSL Ex.PW43/A proved that the ratio of cement to sand was 1:10 by weight. He contended that Crime Scene Visit Report Ex.PW19/A would prove that ground and 1st floor of the said building was old and 2 nd and 3rd floor of the said building were newly constructed and the roofs of 2 nd and 3rd floor were made of 'flat stones' and 'steel beams' which were supported by two brick pillars each on right and left side. He contended that photographs of the place of incident would show that the building was being raised on the brick pillars erected from roof of 1st floor instead of ground floor. He contended that the accused Mohd. Umar and Sarfuddin had the requisite knowledge that the said construction raised in such a manner was highly dangerous and it was done with the knowledge that it was likely to cause death and in fact, 7 persons died and one person sustained grievous injury due to collapse of the said building. He contended that the accused Mohd. Umar and Sarfuddin should be held guilty for committing offences punishable under Section 304 Part II and 308 IPC.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 22 of 51
46. As regards, the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed, Ld. Addl. PP for the State contended that the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed were Junior Engineer, Assistant Engineer and Executive Engineer of the area and it was their prime and foremost duty to prevent unauthorized construction in their jurisdiction. He contended that PW-37 SI Rajbir Singh informed PW-38 Insp. R.S. Adhikari regarding unauthorized construction in the said building and pursuant thereto, PW-38 Insp. R.S. Adhikari, SHO, PS Sadar Bazar intimated MCD regarding unauthorized construction, vide complaint dated 10.04.2004 Ex.PW38/A. He contended that the said complaint was received by Bldg. Section, SP Zone, MCD on 12.04.2004 and thereafter, the accused Karan Kumar Arora visited the site on 19.04.2004 and reported that only renovation work was found in the said building. He contended that the said report is ' on its face' inaccurate. He contended that the accused Karan Kumar Arora neither visited the said building thereafter nor taken any action against unauthorized construction. He contended that PW-38 Insp. R.S. Adhikari again sent reminder notice Ex.PW38/B. However, the said accused persons neither stopped the construction nor taken any action and resultantly, the said building collapsed leading to loss of 7 persons and grievous injury to one. He contended that the accused persons demonstrated total rashness or negligence in taking appropriate action against the said unauthorized construction. He contended that the said accused persons had knowledge that the said construction was being raised in such a manner and under such circumstances it could lead to death of human beings.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 23 of 51 CONTENTIONS OF THE DEFENCE:
47. Mr. Mukesh Kalia, Ld. Counsel for the accused Sarfuddin and Mohd. Umar contended that there is no evidence that the accused Sarfuddin and Mohd. Umar had any connection with construction of the said building. He contended that the prosecution failed to establish cause of collapse of the said building. He contended that the prosecution witnesses, particularly, PW-41 M.M. Das and PW-42 H.K. Sharma, members of the expert committee, deposed that heavy rains and weather condition could contribute to collapse of a building. PW-45 Insp. Ajay Sharma deposed that there was heavy rain and wind storms before the incident. He contended that the prosecution has failed to establish proximity between the cause of death and act attributed to the accused persons. He contended that there was no public witness to seizure of building material from the site. He contended that PW-37 SI Rajbir Singh seized building material from the site in violation of settled norms. He contended that the prosecution neither explained delay in sending seized material to FSL nor established complete chain of custody from seizure to examination of the said material. He contended that climate conditions have important role on quality and strength of the building material. He contended that the prosecution witnesses, particularly, PW-2 Rajender Kumar, PW-3 Jai Prakash and PW-10 Hanuman are interested witnesses and they falsely involved the accused Mohd. Umar. He contended that number of collapsed building was 5084-86, Rui Mandi, Sadar Bazar, Delhi in DD No. 14A whereas the actual number of the said building was 5079-81, Rui Mandi, Sadar Bazar, Delhi.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 24 of 51
48. Mr. Mukesh Kalia, Ld. Counsel for the accused Sarfuddin and Mohd. Umar contended that the accused Mohd. Umar was a tenant in Building No. 5083-84, Rui Mandi, Sadar Bazar, Delhi and he was carrying a business of grain from there. However, his landlords, namely, Radha Raman and Shri Krishan had cordial relation with PW-37 SI Rajbir Singh and he involved them at their instance to get the premises vacated. He contended that the injured witness, namely, PW-1 Surender did not support the case of the prosecution. He contended that the prosecution has failed to prove most essential ingredient of Section 304-II IPC i.e. knowledge and proximity / nexus between the act and death of people. He contended that there is no money trail, no recovery of any amount, no video / photograph to show that the accused Mohd. Umar was the contractor of the said construction. He contended that the defence witnesses categorically proved that the accused Mohd. Umar was not a contractor and he was engaged in the sale of rakhi, pichkari from a neighboring shop. In that regard, he referred evidence of DW-1 D.S. Dutta and DW-6 Tilak Raj Luthra. He contended that the accused persons deserves to be acquitted.
49. Ld. Counsels for the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed contended that the prosecution has failed to prove that the said accused persons had any role in collapse of the said building. They contended that the accused Karan Kumar Arora had inspected the site immediately on receipt of complaint Ex.PW38/A marked to him by the accused Jagdish Chander and Qaiser Javed and he did not find any unauthorized construction there and he had noticed renovation work at the site.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 25 of 51
50. Ld. Counsels for the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed contended that the accused Karan Kumar Arora was exonerated, vide order dated 11.12.2008 Ex.DW2/A. They contended that the accused Jagdish Chander was also exonerated. They contended that the accused Qaiser Javed was exonerated in OA No. 4228/2014 titled as ' Qaiser Javed vs. Lieutenant Governor of Delhi & Ors. ', vide order dated 26.07.2016 and the said order was affirmed by Hon'ble High Court of Delhi in W.P. (C) 616/2017 decided on 27.02.2017 and by Hon'ble Supreme Court of India in Civil Appeal No(S). 9433/2019 decided on 12.09.2022. They contended that Investigating Officer categorically stated that there was no evidence against the said accused persons and he placed them in column No 2. They contended that the accused persons deserves to be acquitted from the charges framed against them. POINTS FOR DETERMINATION:
(a) Whether the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed committed offences punishable under Section 304A/338 IPC?
51. Section 304A IPC is, as under:
"304A. 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."
52. Section 338 IPC is, as under:
"338. Causing grievous hurt by act endangering life or personal safety of others Whoever causes grievous 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 two years, or with fine which may extend to one thousand rupees, or with both."
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 26 of 51
53. In Sushil Ansal vs. State through CBI, Crl. Appeal No. 597/2010 decided on 05.03.2014, Hon'ble Supreme Court of India held, as under:
"48. The terms 'rash' or 'negligent' appearing in Section 304A extracted above have not been defined in the Code. Judicial pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v. Idu Beg, ILR (1881) 3 All 776, where Straight, J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term 'rash' by the High Court of Madras in In Re: Nidamarti Negaghushanam, 7 Mad HCR 119, where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression 'rash', have broadly met the approval of this Court also as is evident from a conspectus of decisions delivered from time-to-time, to which we shall presently advert. But before we do so, we may refer to the following passage from "A Textbook of Jurisprudence" by George Whitecross Paton reliance whereupon was placed by Mr. Jethmalani in support of his submission. Rashness according to Paton means "where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act".
49. In the case of 'negligence' the Courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 27 of 51 Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection.
66. To sum up, negligence signifies the breach of a duty to do something which a reasonably prudent man would under the circumstances have done or doing something which when judged from reasonably prudent standards should not have been done. The essence of negligence whether arising from an act of commission or omission lies in neglect of care towards a person to whom the defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the property or the person of the victim. The existence of a duty to care is thus the first and most fundamental of ingredients in any civil or criminal action brought on the basis of negligence, breach of such duty and consequences flowing from the same being the other two. It follows that in any forensic exercise aimed at finding out whether there was any negligence on the part of the defendant/ accused, the Courts will have to address the above three aspects to find a correct answer to the charge.
(iv) Difference between negligence in civil actions and in criminal cases:
67. Conceptually the basis for negligence in civil law is different from that in criminal law, only in the degree of negligence required to be proved in a criminal action than what is required to be proved by the plaintiff in a civil action for recovery of damages. For an act of negligence to be culpable in criminal law, the degree of such negligence must be higher than what is sufficient to prove a case of negligence in a civil action. Judicial pronouncements have repeatedly declared that in order to constitute an offence, - negligence must be gross in nature.....
73. There is no gainsaying that negligence in order to provide a cause of action to the affected party to sue for damages is different from negligence which the prosecution would be required to prove in order to establish a charge of 'involuntary manslaughter' in England, analogous to what is punishable under Section 304A, IPC in India.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 28 of 51 In the latter case it is imperative for the prosecution to establish that the negligence with which the accused is charged is 'gross' in nature no matter Section 304A, IPC does not use that expression. What is 'gross' would depend upon the fact situation in each case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has been considered to be gross negligence in a given situation.
79. To sum up: for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim. As to what is meant by causa causans we may gainfully refer to Black's Law Dictionary (Fifth Edition) which defines that expression as under:
"The immediate cause; the last link in the chain of causation."
80. The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines Causa Causans as follows: "the immediate cause as opposed to a remote cause; the 'last link in the chain of causation'; the real effective cause of damage"
54. Adverting to the facts of the case, the case of the prosecution is founded on a complaint dated 10.04.2004 Ex.PW38/A sent to MCD by PW-38 Insp. R.S. Adhikari pertaining to unauthorized construction in 'Property No. 5084, 5085 and 5086, Rui Mandi, Sadar Bazar, Delhi ' on the information of PW-37 SI Rajbir Singh. However, PW-37 SI Rajbir Singh has not stated anything, in his evidence, regarding his visit to the said properties and new construction in the said properties. He merely stated that he had recorded statement of one maulvi regarding unauthorized construction of a building by Mohd. Umar. However, the prosecution has also not examined the said maulvi. Therefore, there is no evidence regarding the status of construction in the said properties as on 10.04.2004, except complaint Ex.PW38/A. FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 29 of 51
55. The said complaint Ex.PW38/A was received by Bldg. Section, SP Zone on 12.04.2004. Pursuant thereto, the accused Qaiser Javed issued direction 'to take immediate necessary action as per law and put up ATR within 3 days ', vide note dated 15.04.2004. Thereafter, the accused Jagdish Chander issued direction 'to immediately inspect and take necessary action as per law and put up report within 3 days to place before authorities', vide note dated 15.04.2004. In compliance of the said directions, the accused Karan Kumar Arora inspected the property No. 5081-86, Rui Mandi, Sadar Bazar, Delhi on 19.04.2004 and reported, as under:
"I inspected the property No. 5081-86 today on 19.04.2004 and found that there was no building activity seen at site. On inspection of the property No. 5084, I found that it is old existing building only, renovation work found in progress at 1st floor which is covered under 6.4.1 of building bye-laws. It is not actionable. AE (B)/EE(B) may see the site and report submitted for information and necessary action."
56. Vide note dated 19.04.2004, the accused Jagdish Chander issued direction to 'keep strict watch on the properties and take all possible necessary action as per DMC Act, if any, unauthorized construction is raised by occupier / builder'.
57. Therefore, there was no reason for the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed to take any action against any construction in the said building, as on 19.04.2004.
58. As regards reliance of the prosecution on the reminder dated 29.04.2004 Ex.PW38/B, it is relevant to note that there is nothing on record that the said reminder was ever received by MCD, on or before the date of incident.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 30 of 51
59. The accused Karan Kumar Arora again visited Property No. 5079 to 5086, Rui Mandi, Sadar Bazar, Delhi on 26.04.2004 and reported, as under:
"I inspected the property No. 5085-86 and found that there is no building activity seen at site. On inspection of property No. 5081-5084, I found that only renovation work is in progress as earlier indicated, which is not actionable.
On inspection of property No. 5079-5080, it is found that owner of property has carried out repair work at G.F & F.F. and is not actionable as per Building Bye- laws.
Submitted for information and n.a. Pl.
AE (B)/882 26/4/04
JE (B)/SPZ"
60. On the basis of the said report, the accused Jagdish Chander directed the accused Karan Kumar Arora 'to keep strict watch on the properties and take necessary action, if any, unauthorized construction is raised by owner / builder', vide note dated 26.04.2004.
61. Therefore, there was no occasion for the accused Qaiser Javed and Jagdish Chander to take any action against the construction in the said building, as on 26.04.2004.
62. The prosecution has not led any evidence that the said accused persons had any connection with the accused Mohd. Umar.
63. It would be relevant to note that PW-1 Surender, injured, did not support the case of the prosecution. He merely stated that he had worked as mason for 2-3 days when the said building was under construction. He has not stated anything regarding the status of construction, as on 26.04.2004. He even denied that he sustained injury on account of collapse of the said building.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 31 of 51
64. The prosecution examined PW-2 Rajender Kumar, a neighbor to prove that the said building was being constructed 'in haste' and the construction continued even during rain. His examination-in-chief is, as under (verbatim):
"I have been doing the business of food grains trading at Sadar Bazar, Delhi. There is a proprietorship firm in the name of Luchi Ram owned by Sh. Satya Narayan which is situated by the side of our shop. The accused Satya Narayan is present in the court today (correctly identified by the police). The premises no. 5079-81, Rui Mandi, Sadar Bazar belongs to accused Satya Narayan. Since 15,20/04/2004 construction work was going on at the second floor of the said building. The labourers were completing the construction work in haste. On 3.05.2004, the said building collapsed due to the reason being constructed in haste and also due to the effect that at that time it was raining now and then and the construction work continued even during the raining. The debris of the building also fell at our shop no. 5078 and the persons present there fortunately were not injured. The building was being constructed under the supervision of thekedar accused Mohd. Umar, the accused is present in the court today (correctly identified). About 4 or 5 persons died due to the collapse of the said building. After the building collapsed, the MCD officers and the police persons visited the said premises and not before that. I also heard that permission from the MCD for the said construction was obtained by accused Mohd. Umar. I cannot say anything regarding the quality of the building material which was being used for construction but the work was being done day and night continuously. Police had interrogated me in this regard and I had told said facts to the police."
65. Relevant part of cross-examination of PW-2 Rajender Kumar is, as under:
".....As far as I know about 12-15 persons were working during the construction. I never went to the upper floors of the property while the construction was going on.....I can say that the work was in progress at fast pace since everything was quite visible and open to be seen by all....."
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 32 of 51
66. From analysis of evidence of PW-2 Rajender Kumar, it is evident that his evidence is quite general in nature. He never visited the said building at the time of construction. Moreover, there is nothing in his evidence regarding the status of construction of the said building, as on 26.04.2004.
67. As regards reminder dated 29.04.2004 Ex.PW38/B, it would be relevant to refer examination-in-chief of PW-38 Insp. R.S. Adhikari, SHO, PS Sadar Bazar, as under:
"On 29.04.04, I had given the reminder to the Dy. Commissioner MCD SP Zone regarding the unauthorized construction of the same property. The said reminder alongwith copy of Ex.PW38/A was sent, vide Diary No. 1260/SHO/Sadar Bazar dated 29.04.04. The attested true copy of the same already placed on the record is Ex.PW38/B bearing my signatures at point A. The copy of the same also sent to the Executive Engineer {Bldg.} SP Zone and the noting of the same is made at point X in Ex.PW38/B."
68. In his cross-examination, PW-38 Insp. R.S. Adhikari stated, as under:
"It is correct that on Ex.PW38/B, it is nowhere mentioned that the said complaint was received by MCD. I cannot say whether the dispatch register having dispatch number 1260/SHO/Sadar Bazar dated 29.04.04 is available with police station Sadar Bazar or not.....All the documents such as dispatch register and peon book related to the case were handed over to crime branch for further investigation. I can try to trace the dispatch register bearing No. 1260 and peon book related to the dispatch in this case in PS Sadar Bazar. (Vol. As per standing order, diary register and peon book are destroyed after every two years. Hence, I am not in a position to say as to whether the said records are available in the police station or not)..... "
69. Therefore, the prosecution has failed to prove that the reminder dated 29.04.2004 Ex.PW38/B was ever dispatched or received by MCD.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 33 of 51
70. Therefore, this Court is of the considered opinion that there is no evidence that the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed committed any ' rash' or 'negligent' act or omitted to take appropriate action in order to prevent unauthorized construction in the said building leading to death of 7 persons and grievous injury to one.
71. Accordingly, the prosecution failed to prove charges under Section 304A and 338 IPC against the accused Karan Kumar Arora, Jagdish Chander and Qaiser Javed.
(b) Whether the accused Sarfuddin and Mohd. Umar committed offences punishable under Section 304 Part II/308 IPC?
72. The case of the prosecution is that the accused Mohd. Umar, contractor and the accused Sarfuddin, sub- contractor were constructing the said building with sub-standard material without sanction of MCD and observing precautions / safety measures to prevent loss of life and injury to limb. It is further case of the prosecution that the accused Mohd. Umar and Sarfuddin had knowledge that the said building was likely to collapse and cause death of human beings.
73. Section 304 IPC is, as under:
"304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, ans shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 34 of 51
74. Section 308 IPC is, as under:
"308. Attempt to commit culpable homicide. - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
75. Under Section 304 Part II IPC the degree of knowledge required is, knowledge of the likelihood of death. To make out a case against an accused of culpable homicide under Section 304 Part II IPC, the prosecution has to show prima facie that the act complained of was done with the knowledge, with the awareness of the accused about the consequence of death or grievous injury of such kind as would result in death. Therefore, the state of mind i.e. intention or knowledge of the consequence, proof of such intention or knowledge has to be of high order and all other hypothesis of innocence of accused have to be ruled out. Direct nexus between the death of a person and the act of the accused is essential to attract the provisions of Section 304 Part II IPC.
76. As regards contention of the defence that there is no evidence that the accused Mohd. Umar was a contractor and the accused Sarfuddin was a sub-contractor, this Court is of the opinion that the said contention is without any merit.
77. The complaint dated 10.04.2004 Ex.PW38/A is a contemporary document. This document came into existence before the date of incident. The said document is an official document which was received by MCD on 12.04.2004.
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78. It is categorically stated in complaint Ex.PW38/A that the name of the contractor was 'Umar'. Though the property numbers are different as '5084, 5085 and 5086, Rui Mandi, Sadar Bazar, Delhi'. This discrepancy was also crept in rukka Ex.PW37/A. However, it could only be ascertained during the course of investigation that the correct building number which has collapsed was '5079-81, Rui Mandi, Sadar Bazar, Delhi'.
79. In this regard, PW-2 Rajender Kumar, neighbor categorically stated, as under:
".....The building was being constructed under the supervision of thekedar accused Mohd. Umar, the accused is present in the court today (correctly identified)....."
80. In his cross-examination, he categorically deposed that he knew Mohd. Umar since 2004 and he had seen him twice or thrice in 2004. His evidence remained unchallenged, on this aspect.
81. PW-3 Jai Prakash is husband of Smt. Savita, co- owner of the said building. He categorically deposed that the accused Satya Narain entrusted construction work of the said building to the accused Mohd. Umar and he had paid him an amount of Rs. 5,00,000/-. Relevant part of his examination-in- chief is, as under:
".....In the month of March, 2004, my brother Satya Narayan, the accused present in the Court today, told me that he was negotiating with accused Mohd. Umar for construction of the said premises besides arrangement regarding building material. In the month of April, 2004, I visited premises no. 5079-81 where I saw accused Mohd. Umar, my brother Satya Narayan sitting along with two other accused persons to whom I did not know. My brother Satya Narayan the accused told me that he had given Rs .5 lakh to accused Mohd. Umar for construction work at the said premises.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 36 of 51 In my presence, my brother Satya Narayan the accused engaged accused Mohd. Umar for the construction work, including procurement of building material for such construction besides taking appropriate permission from the MCD.
On that day, the accused Mohd. Umar also showed us one official paper regarding having obtained permission from the MCD for construction. It was demanded by my brother but he said that he would hand over the same after the receipt of the sanctioned site plan."
82. Relevant part of his cross-examination is, as under:
".....I visited the premises no. 5079-81 on or about 20th April, 2004 at about 3.00 pm and accused Mohd. Umar, my brother Satya Narayan and two other persons to whom I do not know were sitting in the office at that time. My brother accused Satya Narayan is income tax assesse and he had told me that he had given Rs. 5 lakh to accused Mohd. Umar in cash from his firm Satya Narayan Jai Prakash.....Such contracts are executed based on trust and faith and very rarely written documents are executed. No written agreement was executed between accused Satya Narayan and accused Mohd. Umar for the alleged construction work....."
83. PW-10 Hanuman was employed in the firm of the accused Satya Narain. He categorically stated that the accused Satya Narain had given Rs. 5,00,000/- as advance to the accused Mohd. Umar in his shop and thereafter, construction work started. He categorically stated that the accused Sarfuddin was looking after construction work. His statement is, as under:
"I was working with Seth Sat Narain at his firm in the name of Lacchi Ram at Sadar Bazar as a Beldar since 1971. In the month of April 2004, Seth Sat Narain had talked with accused Mohd. Umar, present in the court toady (correctly identified) for construction of his building at the First floor. For the said purpose, Seth Sat Narain had given Rs. 5 Lacs advance to accused Mohd. Umar at this shop and the construction work started thereafter. Accused Sarfuddin, present in the court today (correctly identified) was also looking after the construction work and he used to come there now and then. My statement was recorded by the IO."
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84. In his cross-examination, he stated, as under:
".....Accused Mohd. Umar was not known to me prior to April, 2004. I am unaware about the parentage and address of accused Mohd. Umar. I do not remember the exact date on which the payment of Rs. Five Lacs was made by Seth Satnarain to accused Mohd. Umar. (Vol. But it was month of April). The payment of Rs. 5 lacs was made in cash and not by cheque. I did not observe if any receipt was given by accused Mohd. Umar to Seth Satnarain for the said payment of Rs. 5 lacs to him....."
85. Therefore, there is sufficient evidence on record, as stated above, to infer that the accused Mohd. Umar was the contractor and the accused Sarfuddin was a sub-contractor.
86. As regards the contention that the said witnesses are interested, it can be stated that the defence has failed to show that the said witnesses had any enmity or animosity or any reason to falsely implicate the accused Mohd. Umar and the accused Sarfuddin. In the absence of any material that the witnesses would derive any benefit from implication of an accused, the said witness cannot be termed as an interested witness. The said witnesses are independent witnesses and they had no reason to depose against the accused Mohd. Umar and Sarfuddin. Evidence of DW-1 D.S. Dutta and DW-6 Tilak Raj Luthra is quite general sans any material and it is wholly unreliable.
87. As regards contention that there is no documentary evidence pertaining to any agreement between the accused Mohd. Umar and Satya Narain for raising construction in the said building, it can be stated that absence of any documentary evidence on this aspect cannot lead to any inference that the accused Mohd. Umar was not the contractor and he was not raising the said construction.
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88. The case of the prosecution against the accused Mohd. Umar and Sarfuddin that they were constructing the said building without a sanction plan with sub-standard material on old existing walls of the ground floor on brick pillars in haste without allowing fresh construction to dry and placed construction material on the roofs of upper floors is founded on five planks, as under:
(a) The said building was constructed without a sanction plan;
(b) Complaint dated 10.04.2004 Ex.PW38/A written by PW-38 Insp. R.S. Adhikari to MCD regarding unauthorized construction in the said building;
(c) Crime Scene Visit Report Ex.PW19/A prepared by FSL, Rohini, Delhi;
(d) CFSL Report Ex.PW43/A; and
(e) Inquiry Report of Expert Committee Ex.PW41/A.
89. As regards the case of the prosecution that the said building was constructed without a sanction plan, it can be stated that an inference that the said building collapsed as it was constructed without a sanction plan cannot be raised. In case a building is constructed without a sanction plan, it may invite appropriate action under the provisions of 'The Delhi Municipal Corporation Act, 1957'. However, it cannot lead to the inference that the said building was constructed with the knowledge that such construction may cause collapse of the said building and result into loss of life and injury to human beings.
90. As regards complaint dated 10.04.2004 Ex.PW38/A, it can be stated that the said complaint does not state anything regarding the status of construction of the said building. It merely stated 'New Construction' in 'Premises No. 5084, 5085 and 5086, Rui Mandi, Sadar Bazar, Delhi'.
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91. Pursuant thereto, the accused Karan Kumar Arora inspected the said building on 19.04.2004 and reported that renovation work was in progress on 1 st floor which is covered under 6.4.1 of building bye-laws and not actionable. It is relevant to note that PW-38 Insp. R.S. Adhikari sent complaint Ex.PW38/A on the basis of information given by PW-37 SI Rajbir Singh. However, the prosecution has not filed the said information. Moreover, PW-37 SI Rajbir Singh has not stated anything regarding his visit to the said building on 10.04.2004 and furnishing information to PW-38 Insp. R.S. Adhikari regarding unauthorized construction thereon, on 10.04.2004. Admittedly, PW-38 Insp. R.S. Adhikari neither visited the said building nor observed construction in the said building. He premised the said complaint on the basis of the information given by PW-37 SI Rajbir Singh. Therefore, besides the fact that PW-38 Insp. R.S. Adhikari sent complaint dated 10.04.2004 Ex.PW38/A, on 12.04.2004 to MCD regarding ' New Construction' in 'Premises No. 5084, 5085 and 5086, Rui Mandi, Sadar Bazar, Delhi', the prosecution could not prove the status of the construction in the said building, as on 10.04.2004.
92. The relevant part of Crime Scene Visit Report Ex.PW19/A is, as under:
"The undersigned along with Dr. V.K. Goyal, Director In-charge and Sh. Parshuram Singh (S.S.A) visited the scene of occurrence i.e. Plot No. 5084- 5086, Rui Mandi, Sadar Bazar, Delhi on 04.05.04. One four storied building which was found collapsed was examined. The ground floor and first floor of the building appears to be old where as the second and third floors were appears to be newly constructed / under construction. The roofs of second and third floors were found made of flat stones and steel beams, which were supported by the brick pillars two on left side and two on right side."
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93. Crime Scene Visit Report Ex.PW19/A merely stated the nature of the construction on 2nd and 3rd floor and that roofs of 2nd and 3rd floor were supported by brick pillars, two on left side and two on right side. It did not state that there was any structural and / or architectural flaw in the said building and that the said building was constructed in the manner and with the knowledge that it may collapse. The said report would not advance the case of the prosecution in any manner.
94. As regards the contention that the said building was being constructed in undue haste with 35 / 40 labors without allowing fresh construction to dry and construction material was placed upon roof of newly constructed floors leading to collapse of the said building, it can be stated that there is no evidence on this aspect.
95. PW-1 Surender, mason, who sustained grievous injury has not supported the case of the prosecution. He stated that as long as he worked there, the said building did not collapse. He stated that he sustained injuries in the stampede when he visited the said building after it collapsed.
96. PW-2 Rajender Kumar, a neighbor, stated that the construction work was going on 2nd floor of the said building since 15 or 20/04/2004 and the labors were completing the construction in haste. He stated that on 03.05.2004, the said building collapsed as it was being constructed in haste and there was raining now and then and construction work continued even during raining. He stated that the construction work was carried out day and night continuously. However, in his cross- examination, he stated that about 12-15 persons were working during the construction of the said building.
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97. PW-2 Rajender Kumar stated that he never went to upper floor of the said building while the construction work was going on. He stated that he cannot state as to when the rain started and stopped.
98. From his evidence, it is evident that PW-2 Rajender Kumar never visited the said building at the time of its construction. He made a statement on the basis of general observation made by him regarding the construction of the said building. He even did not state the exact date when the construction had started. He even did not state anything regarding construction of 3rd floor. His evidence is quite general in nature. From his evidence, this Court cannot raise any inference that the said building was being constructed in undue haste without allowing fresh construction to dry.
99. PW-4 Mahavir Singh, an employee of the accused Satya Narain, PW-5 Hem Chand, a neighbor, PW-11 Triveni Saw, a mason and PW-13 Hari Om Gupta, a neighbor have not supported the case of the prosecution on this aspect.
100. As regards contention regarding the quality of building material, the prosecution examined PW-7 Sameer Chawla and PW-8 Pradeep Kumar. They stated that they are registered MCD contractors. They stated that they have 20 years experience of construction of buildings. They stated that the ratio of cement and sand used for building construction must be 1:5. They stated that if the said ratio is more than 1:6, then the mortar would be not fit for construction. However, they have not placed anything on record that they are registered MCD contractors and they have 20 years experience in construction of buildings.
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101. The Court cannot place reliance on such general statement made by any person claiming himself as a registered MCD contractor.
102. The prosecution heavily relied on CFSL Report Ex.PW43/A to contend that the ratio of cement and sand in the building material seized from the said building was found to be 1:10.
103. For the sake of reference, it would be appropriate to refer relevant part of the said report is, as under:
"6. Description of the parcel(s), exhibit(s) and seals:
Received five sealed plastic gunny bag, sealed with the seal impression corresponding with the specimen seal impression forwarded. They contained the exhibits.
Parcels Description
1 It contained a mortar sample weighing about
4 kg, stated to be collected from the debris of collapsed building. It was marked as the exhibit-1 in the laboratory.
2 It contained 2½ burnt building bricks of the make "B N" and "M B C", stated to be collected from the debris of collapsed building. They were marked as the exhibit-2 in the laboratory.
3 It contained a mortar sample weighing about 4 kg, stated to be collected from the debris of collapsed building. It was marked as the exhibit-3 in the laboratory.
4 It contained four burnt building bricks, two "asha" make and two "M K P" make, stated to be collected from the debris of collapsed building. They were marked as the exhibit-4 in the laboratory.
5 It contained sample of cement, stated to be used in the construction of building which collapsed. It was marked as the exhibit-5 in the laboratory.
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7. Purpose of reference: For examination and report.
8. Date(s) of examination: 18.08.2004 to 20.10.2004.
9. Results of Examination:
On the basis of physico-chemical examination of the exhibits 1, 2, 3, 4 and, 5 it has been observed that; i. the exhibits 1 and 3 (mortar samples) contained the cement and sand in the ratio about 1:10 by weight, ii. the size (Length, Width, Height) and other physical requirements (Crush strength, Water absorption, Efflorescence) of the exhibits 2 & 4 (bricks) have been found as per IS specifications for them, and iii. the exhibit-5 has been found to be Ordinary Portland Cement.
10. After the examination, the parcel(s) containing the exhibit(s)/remnants of the exhibit(s) has / have sealed with the seal impression as per specimen provided below."
104. According to CFSL Report Ex.PW43/A, bricks were as per 'IS specifications' and cement was 'Ordinary Portland Cement'. Moreover, PW-45 Insp. Ajay Sharma, Investigating Officer stated that the building material was of goods quality, as under:
".....During the investigation, it was revealed to me that Balvinder Singh had supplied the building material of 'A' grade and was of good quality and the same facts were revealed by witness Rajeev Arora, who had supplied bricks and other material....."
105. The prosecution failed to establish that the building material was seized from the said building and it was properly preserved in malkhana and there was no undue delay in examination of seized building material.
106. PW-37 SI Rajbir Singh seized building material on 03.05.2004, vide seizure memo Ex.PW29/C. However, the said building material was not sent for forensic examination.
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107. PW-37 SI Rajbir Singh seized building material at the instance of Dr. V.K. Goyal, Director In-Charge, PW-39 Parshuram Singh, SSA and Dr. Swaroop Vedanand, SSO (Physics), FSL, Rohini, Delhi on 04.05.2004, vide seizure memo Ex.PW30/A. However, the sealed parcels were neither signed nor sealed by the said officials of FSL, Rohini, Delhi. PW-37 SI Rajbir Singh or PW-39 Parshuram Singh, SSA have not deposed anything regarding the exact location from where the said building material was seized. In this regard, PW-37 SI Rajbir Singh stated that he had taken samples of raw material kept outside the said building and inside the said building. However, he has neither stated in seizure memo Ex.PW30/A the exact location from where he seized material nor deposed in his evidence. Relevant part of his cross-examination is, as under:
".....The some of the sample was taken from outside the collapse building, where raw material was being kept and some portion was from inside the collapse building. In the seized articles, bricks were taken from the collapse building....."
108. The prosecution has not examined In-Charge, Malkhana to prove the chain of custody of seized building material. The seized building material was sent to CFSL, Chandigarh for forensic examination on 12.07.2004, through PW-35 HC Radha Krishnan. CFSL, Chandigarh examined the said material on 25.10.2004. The prosecution has not explained the delay of more than two months in sending seized material to CFSL for forensic examination. There is delay of more than five months in examination of seized material. The prosecution has also not explained further delay of more than three months in examination of seized material by CFSL, Chandigarh.
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109. Such delay can affect the accuracy of ratio of cement and sand in the seized building material.
110. In this regard, it would be relevant to refer cross- examination of PW-3 Durga Prasad, as under:
".....It is correct that atmospheric condition, where cement is stored play an important role to analysis of the quality and strength of the cement. I have not received any history of the exhibits, the place and the conditions where the same were kept. I did not consider the aspect with regard to the atmospheric condition and the place, where the exhibits were kept before it was sent to me for the purpose of its examination. In the absence of the unavailability of that history, I cannot say that how much that atmospheric condition had influenced the character / strength of the exhibits examined by me....."
111. Therefore, the prosecution failed to prove that the building material was seized from the said building. The prosecution also failed to prove the chain of custody of the seized building material. The prosecution has also failed to explain undue delay in sending seized building material for forensic examination. The prosecution has also failed to prove that the seized building material was properly preserved from the time of seizure till it was sent to CFSL for forensic examination. Therefore, CFSL Report Ex.PW43/A regarding the ratio of cement and sand cannot be relied upon.
112. As regards the case of the prosecution that the accused Sarfuddin and Mohd. Umar did not avail service of a qualified civil engineer for construction of the said building, it can be stated that PW-7 Sameer Chawal and PW-8 Pradeep Kumar, MCD contractors, have not stated that they did possess any qualification of building construction. They stated that they have experience of building construction for more than 20 years.
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113. PW-41 M.M. Das, Superintendent Engineer (B), HQ, MCD stated, in his cross-examination, as under:
".....We have our own nominated contractors to whom we assign work of MCD as per their eligibility and tendering process. There is no educational qualification required for a person to qualify as a nominated contractor of MCD....."
114. Moreover, PW-45 Insp. Ajay Sharma stated that there is no requirement of any qualification for construction of any building. In that regard, he has deposed, as under:
"There is no such requirement of having any qualification for a person, who is raising / constructing any building. As there is no need of having any qualification for a person to construct a building, hence I did not investigate on this aspect whether the accused was having any qualification to raise any construction or not."
115. The prosecution relied upon Inquiry Report of an Expert Committee Ex.PW41/A comprising PW-41 M.M. Das, Superintendent Engineer (B), HQ and PW-42 H.K. Sharma, Executive Engineer, PWD-II, as under:
"To sum the following factors can be attributed for collapse of building:
1. Wall towards Masjid being eccentric and not raised to true plumb falling over the freshly laid roofs.
2. Excessive sagging of girders resulting in loss of bearing due to dead load of stored materials, labour working or a result of wall adjoining Masjid falling over the roof.
3. Inadequacy of design of structural members.
4. Inferior quality of material used i.e. a very low percentage of cement was used while making mortar for the walls.
5. Work having been raised in great hurry; might have been raised within 3-4 days; thus not giving enough time for the cement mortar used in the work to gain adequate strength to enable masonry to with stand lateral stresses. The problem might have been got compounded as a result of rains during the construction period."
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116. Relevant part of Report Ex.PW41/A is, as under:
".....While inspecting the first floor it was observed that one column existed in the central span and four columns only on the left side of the building. There might be other columns also in the center to reduce the span but at the time of inspection, since debris had already been removed, these could not been seen but evidence in the shape of plaster bearing is there. While raising second and third floor, four columns on left and four columns on the right hand side of the buildings were raised along with the central columns. As all the girders placed for laying the roof were not available for inspection at site, but size could be visualized from the photographs obtained from the police and from the few girders still existing at site. Existing T-Iron sections are of the size 70 mm x 70 mm x 07 mm and main girders would have been of the size 200 mm x 100 mm x 07 mm.....
The probable cause of failure might have been that work was carried in great hurry giving no time for the brickwork to gain strength. Another reason for brickwork to loose strength can be attributed to rain falling during the duration of construction. As the brick work could not gain strength and girders placed over it were not secured by welding with cross bracings, these girders lost their bearing as a result of excessive load due to material stack over the freshly laid roofs and large labour force working to complete the work quickly. This might have resulted in collapse of the building.
Another, probable reason of collapse could be collapse of wall towards the side of Masjid. As can be seen at the site that there is clear gap between the wall of building in question and that of Masjid wall above IInd Floor level. The wall raise was eccentric from the supporting wall at second floor of the building and might have not been raised truly in plumb as a clear gap between the two walls can be seen even now. Any wall not raised in plumb having eccentric loading over the wall below is likely to fall especially when the brick work has not gained proper strength and further problem compounded as a result of rains. If this wall would have resulted in falling this might have fallen on the roof of building under construction, thereby causing excessive loading over the roofs and vibrations, which might have resulted girders leaving their bearings and ultimate collapse of whole structure.
FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 48 of 51 .....There is all the possibility that materials for construction might have been stored over the roof of first floor or may be over the second floor roof, which resulted in excessive loading resulting in sagging of girders and ultimate collapse."
117. The date of incident was 03.05.2004. However, the said inquiry committee inspected the site of the said building on 26.05.2005. The debris of the said building had already been removed. Therefore, the Expert Committee examined the photographs obtained from the police. However, the Expert Committee has not annexed the said photographs with the report. The Expert Committee opined 'probable causes of collapse'.
118. The probable causes of collapse that the work was carried out hurriedly and building material was placed over the roof of 1st floor or 2nd floor could not be substantiated by the prosecution, as already discussed.
119. The only structural fault opined by the Expert Committee was regarding absence of plumb between the wall of the said building and adjoining mosque. There is no evidence that the said flaw was solely responsible for collapse of the building.
120. Further, it was a 'probable cause' and not a 'certain cause'.
121. Expert Committee opined that one of the reasons for brickwork to loose strength can be attributed to rain falling during the duration of construction.
122. PW-45 Insp. Ajay Sharma stated, in his cross- examination, that there was heavy rains and wind storms before the collapse of the said building, as under:
".....During the course of investigation, it was revealed to me that there was heavy rains and windstorms prior to when the building had collapsed."
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123. PW-42 H.K. Sharma, Executive Engineer, PWD-II stated, in his cross-examination, as under:
"During our visit at the site after making enquiries it was revealed to us that the collapsed building in question had been constructed during raining season and it was raining during that time. It is correct that even in case of a strong construction and construction being done while following the standard norms and precautions may collapse because of rain or heavy windy condition during the course of its construction / erection. I have specifically mentioned in my report that rain and windy condition may contribute for a building to collapse....."
124. PW-41 M.M. Das, Superintendent Engineer (B), HQ, MCD stated, in his cross-examination, as under:
".....It is correct that even in case of a strong construction and construction being done while following the standard norms and precautions may collapse because of rain or heavy windy condition during the course of its construction / erection....."
125. Therefore, the immediate cause of collapse of the said building could be heavy rains and wind storms.
126. Therefore, the prosecution has failed to prove its case beyond reasonable doubt that the accused Sarfuddin and Mohd. Umar were constructing the said building in the manner and with the knowledge that it was likely to collapse and cause loss of life and grievous injury to limb of any human being.
CONCLUSION The accused persons Sarfuddin and Mohd. Umar are acquitted from offences punishable under Section 304 Part II and 308 IPC. The accused persons Karan Kumar Arora, Jagdish Chander and Qaiser Javed are acquitted from offences punishable under Section 304A and 338 IPC.
Announced in the open Court SANJAY SHARMA-II th on this 24 December, 2024 DJ (Commercial Court)-03 (Shahdara) KKD Courts, Delhi FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 50 of 51 State vs. Sarfuddin & Ors.
CNR No.: DLCT01-000074-2006 SC No. 27671/2016 FIR No. 208/2004 Under Section 304/308/34 IPC PS Sadar Bazar 24.12.2024 Present : Mr. Amit Dabas, Ld. Addl. PP for the State (through Video Conferencing).
The accused persons Mohd. Umar, Karan Kumar Arora, Jagdish Chander and Qaiser Javed are present.
The accused Sarfuddin is absent.
Vide separate judgment announced in the open Court, the accused persons Sarfuddin and Mohd. Umar are acquitted from offences punishable under Section 304 Part II and 308 IPC. The accused persons Karan Kumar Arora, Jagdish Chander and Qaiser Javed are acquitted from offences punishable under Section 304A and 338 IPC. The accused persons already furnished bail bonds, as required under Section 437A Cr.P.C. Bail bonds shall remain in operation for a period of six months from the date of judgment. The accused persons are informed to appear before the appellate Court, as and when any notice is received by them. File be consigned to record room.
Sanjay Sharma-II DJ (Commercial Court)-03 Shahdara, KKD, Delhi 24.12.2024 FIR No. 208/2004 State vs. Sarfuddin & Ors. Page No. 51 of 51