Delhi District Court
State vs . Phool Chand on 15 January, 2020
IN THE COURT OF Ms. RICHA GUSAIN SOLANKI, METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI. FIR No. : 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Date of Institution of case: 05.08.2017 Date of Judgment reserved: 23.11.2019 Date on which Judgment pronounced:15.01.2020 JUDGMENT
Unique ID no. : 6325/17
Date of Commission of offence : 29.05.2014
Name of the complainant : Sadhu Ram
s/o Sh. Siya Ram
Name and address of the accused : Phool Chand
persons s/o Sh. Babu Lal
r/o B28, Gali No.4, Prem Nagar,
Najafgarh, New Delhi
also at, Village Ramuapur, Post
Bhatpurva, PS Ekona, Tehsil Sarvasti
Behraich, UP
Offence complained of : Under Section 288/338 IPC
Plea of accused : Not guilty
Date of order : 15.01.2020
Final Order : Acquitted for offence under Section
288/338 IPC
BRIEF REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 29.05.2014, DD No 38A was received by SI Rajesh Kumar upon which he alongwith Ct Rajesh went to the spot FIR No.: 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Page 1 of 6 of incident, that is, shop no.3, main Dhansa Road, near Suraj Cinema where they found a crowd. They found that there were jack under the four walls of the shop. No eyewitness was found. In the meantime, DD No 40A was received from RTRM Hospital that the injured was admitted there. Ct Rajesh was left at the spot and SI Rajesh went to the hospital where he collected the MLC of the victim Sadhu Ram. The patient was opined to be unfit for statement. The call was kept pending and later the injured was shifted to DDU Hospital. There also he was opined to be unfit for statement. It was found that Sadhu Ram was working as labour in the shop of Suresh Kumar and his contractor was Phool Chand. It was found that the contractor was negligent in the lifting of the shop. On the basis of aforesaid facts, present case FIR No.330/14, P.S.BHD Nagar was lodged for the offences under Section u/s 288/337 IPC.
2. During investigation, the injuries of the victim were opined to be grievous and hence offence u/s 338 IPC was added to the FIR.
3. Arguments were heard and notice for the offences u/s 288/338 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
4. Prosecution examined four witnesses:
4.1. PW1 Sadhu Ram entered the witness box on 22.06.2019 and deposed that he was working as labour for accused Phool chand. He stated that accused took him and one more labour to repair a shop near a cinema. He stated that accused told him that the shop had to be repaired and elevated from the foundation to the roof with the help of jack. He stated that accused told him that he had taken a contract for repair of the same. He stated that he, accused and the other labour started lifting the base of the shop by taking out the mud from the four sides and the bricks of the foundation. He stated that they started fitting the channels but he told the accused that the shop has to be welded before being lifted. He stated that accused refused saying that it was a very small shop and there was FIR No.: 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Page 2 of 6 no need for welding. He stated that they continued with the work and on next day, the angle was moved and thrown away, when they tried to lift the shop. He stated that due to this, the terrace and the wall of the shop came upon him and he got injured. He stated that the incident took place due to negligence of accused because he did not do proper welding and did not provide proper safety measures to him. He stated that before starting the work, he had told accused that the shop was in a bad condition and could fall at any time. He identified the accused.
4.2. PW2 Ashok Kumar entered the witness box on 22.06.2019 and deposed that he was the allottee of shop no.3 and that he was suggested by accused to get the shop elevated. He stated that contract mark Pw2/1 was executed for the same. He stated that after 34 days of work, one day, he was at Shahdara when he got a call that the shop had fallen down. He stated that he was informed that one of the labour was hurt and was in hospital. He stated that he had given Rs.1,000/ of the total consideration amount of Rs.8,000/ to accused before the work began.
In his crossexamination, he stated that till the day of incident, there was no evident problem in the work. He stated that MCD never want him that the shop was unfit/dangerous for use.
4.3. PW3 Ct Rajesh entered the witness box on 31.08.2019 and deposed that he was with IO on the day of incident. He deposed on the lines of chargesheet. He stated that the tools Ex P were seized by IO vide seizure memo Ex PW3/A. 4.4. PW4 SI Rajesh Kumar entered the witness box on 31.08.2019 deposed on the lines of chargesheet. He stated that he prepared tehrir Ex PW4/A and site plan Ex PW4/B. He stated that he moved applications Ex PW4/C, PW4/D and Ex PW4/E for recording the statement of victim but he was unfit for statement. He stated that he gave notice Ex Pw4/F and Ex PW4/G to the shop owner and FIR No.: 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Page 3 of 6 collected documents Ex PW4/H from MCD. He stated that he arrested accused vide memo Ex PW4/I, conducted his personal search vide memo Ex PW4/K and recorded his disclosure statement Ex PW4/J. 4.5.PW5 ASI Bachchu Singh entered the witness box on 30.09.2019 and deposed that he filed the chargesheet in the court. In his cross examination, he stated that he asked about the photographs from SI Rajesh but he did not gave any satisfactory reply.
5. Statement of accused u/s 294 Cr.PC was recorded wherein he admitted the Ddno.38A dated 29.04.2014 as Ex A1, present FIR and its certificate as Ex A2, DD no. 40A dated 29.05.2014 as Ex A3 and MLC of victim as Ex A4.
6. Statement of the accused was recorded u/s 281 r/w 313 CrPC wherein he denied all the allegations made against him. He chose not to lead evidence in his defence.
7. I have heard both the sides and perused the record.
8. To prove offence u/s 288/338 IPC prosecution had to prove that the accused was negligent in taking such order in pulling down or repair of any building as is sufficient to guard against probable danger to human life from fall of that building or part thereof. Further, prosecution had to prove that by doing so accused caused shop no. 3 to fall down on victim Sadhu Ram causing grievious hurt to him.
9. Prosecution examined PW2 to prove that the work of repair and elevation of the shop was given by Pw2 to accused. Although the original contract mark PW2/1 was never produced or proved in the court, accused did not question the deposition of the witness in this regard. No negative suggestion was put to Pw2 to the effect that the work of repair and elevation of the shop had not been given to accused. Therefore, it is undisputed that the work of repair and elevation of shop no.3 was given to accused. It is also not disputed that during such repair work and elevation, the shop collpased on 29.05.2014.
10.Pw1 has deposed that when the shop collpased, he got burried under and FIR No.: 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Page 4 of 6 suffered injuries. This deposition of Pw1 was also not challanged by the accused. The MLC of Pw1 Ex A4 is an admitted document. Hence, it is proved that PW1 had suffered grievous injuries due to collapse of the shop no.3.
11.It is for the prosecution to prove that the shop had collpased because accused knowingly or negligently ommitted to take such precautions to guard against the fall of the shop.
In this regard prosecution examined PW1, who deposed that the shop fell down because accused refused to weld the shop before elevating it. PW1 deposed that the angle moved when they lifted the shop with the help of jack and this caused the roof and the walls to collapse. However, this is entirely different version from the statement of victim which was recorded by the IO during investigation. Earlier PW1/victim had deposed that the shop had fell down because it was a week structure. There was no mention of any welding job in the earlier statement of the victim. Per contra, it has been admitted by PW2/ shop allottee that he was never want by MCD that the shop was not fit for use. Rather Pw4/H which was collected by IO from MCD shows that after the incident, an application was moved before SDMC seeking permission for renovation of the said shop and the permission was granted on 04.07.2014. One expects that if the shop had really become dangerous for use, a mention thereof would have been made in such permission or the permission would have been refused. However, the permission letter does not mention anything of that sort.
12. It is also difficult to point out the negligence of the accused in the absence of inpsection of the said shop by an expert. Only a person having knowledge of such constructions could have inspected the site and informed if the renovation/elevation was not proper. No such report has been sought by the IO in this case. So much so even the photographs of the spot of incident have not been taken to enable the court to understand what exactly went wrong at the shop.
FIR No.: 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Page 5 of 6 While PW4 claimed that he had got photographs of the spot taken but no such photographs are on the file. Even second IO/PW5 deposed that PW4 did not give any satisfactory reply about the photographs.
13.Thus prosecution has not been able to fasten negligence or rashness on the accused in respect to the repair/elevation work.
14.Consequently, prosecution has not proved its case beyond reasonable doubt. Accused Phool Chand is acquitted for offences u/s 288/338 IPC.
Announced in open court today (Richa Gusain Solanki) on 15th January 2020 Metropolitan Magistrate07 Dwarka District Court/Delhi Digitally signed by RICHA RICHA GUSAIN GUSAIN SOLANKI SOLANKI Date:
2020.01.15 16:45:57 +0530 FIR No.: 330/2014 U/s : 288/338 IPC P.S : BHD Nagar State Vs. Phool Chand Page 6 of 6