Delhi District Court
State vs . Babita Saini on 2 December, 2021
IN THE COURT OF MS. CHARU ASIWAL
METROPOLITAN MAGISTRATE-04/CENTRAL: DELHI
STATE VS. BABITA SAINI
FIR No. 224/2013
Case No. 286181/2016
P.S. : Sarai Rohilla
U/s 288/336 IPC
Date of institution of case : 09.12.2013
Date on which case reserved for judgment : 08.11.2021
Date of judgment : 02.12.2021
JUDGMENT :
a) Date of offence : 01.06.2013
b) Offence complained of : U/s 288/336 IPC
c) Name of complainant : Meenakshi Sharma
d) Name of accused and her : Babita Saini
parentage D/o Late Sh. Vidya
local & permanent residence : Bhushan
: R/o 48-C, DDA Flats,
Gulabi Bagh, Delhi
e) Plea of accused : Pleaded not guilty
f) Final order : Acquitted
FIR No. 224/2013 State Vs. Babita Saini Pages 1
BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 01.06.2013, at time unknown at House no. A800/9, Shastri Nagar, Delhi within the jurisdiction of PS Sarai Rohilla on the complaint of Ms. Meenaxi w/o Madan (since deceased) it was revealed that the accused who is owner of property no. A800/9, Shastri Nagar, Delhi is not constructing her house in a safe manner and without following a site plan authorized by the concerned civic body. Complainant also stated that due to irresponsible and illegal construction by the accused, it has caused cracks and fissures in the house of the complainant as well as in the neighbouring houses. She also complained that concerned municipal officers be also informed against such illegal construction. Accordingly, a letter dt. 02.06.2013 was written to J.E MCD SP Zone to inspect the site in question. Accordingly, JE MCD inspected the site in question and opined that the above mentioned house is being constructed in a dangerous manner. Consequently MCD officials demolished the dangerous construction of property no. A800/9 Shastri Nagar on 03.06.2013. Hence, charge-sheet were filed u/s 288/336 IPC.
2. On the basis of material filed along with the charge-sheet, notice u/s 288/336 IPC was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 8 witnesses.
FIR No. 224/2013 State Vs. Babita Saini Pages 2
4. PW1 Smt. Gyatri Devi has stated in his examination that in the year 2013, accused Babita Saini started raising the construction at her premises but she do not remember the municipal number of the premises of accused Babita Saini. Accused Babita Saini used old pillars for further constructions and she raised construction upto fourth floor. She request the accused Babita Saini to raise construction properly as her aforesaid house was an old construction. Due to the construction of the accused, her house got damaged. Accused Babita Saini was correctly identified by the witness.
5. PW2 Smt. Laxmi has stated in her examination that In the year 2013, accused Babita Saini started raising the construction at her premises. Due to the construction of the accused Babita Saini, no damage was caused to her aforesaid premises. Accused Babita Saini was correctly identified by the witness.
6. PW3 WSI Vedwati has stated in her examination that on 03.06.2013, she was posted at PS Sarai Rohilla as a ASI and working as a duty officer. Her duty hours were from 09:00 am to 05:00 pm. On that day at about 01:05 pm constable Manoj produced one rukka before her sent by SI Sushil. On the basis of the same, she registered the present case FIR through computer operator which is Ex.PW3/A. She also made the endorsement on the rukka which is Ex.PW3/B. After registration of the FIR, she handed over the copy of FIR and original rukka to Ct. Manoj for further handing over the same to SI Sushil for investigation FIR No. 224/2013 State Vs. Babita Saini Pages 3
7. PW4 Sh. Harjit Singh, J.E Civil MCD, Civil Line, Delhi has deposed in his examination that he was posted as a Junior Engineer building department at MCD SP Zone, Delhi. Some persons had made a complaint to Deputy Commissioner (DC), SP Zone Delhi regarding a building being dangerous. The said building was situated at A-Block, Shastri Nagar, Delhi, but he do not know the address of the said building. The said building was inspected by DC and after inspection of the said building, DC directed Executive Engineer, building department, SP Zone to take immediate action and demolish the dangerous portion of the said building. He was not accompanied with DC and Executive Engineer, while they were conducting the inspection of the said building. He accompanied Executive Engineer and Assistant Engineer during the demolition of the dangerous portion of the said building.
8. PW5 Mrs. Shanti Devi has stated in her examination that accused Babita Saini used to reside at C-148, DDA flats Gulabi Bagh, Delhi. On 01.06.2013, accused Babita Saini put lantar on the forth floor of the property bearing no. A9/1, Shastri Nagar which was adjacent to her property i.e R/o A- 835/56, Shastri Nagar, Delhi. She requested accused not to put lantar on the fourth floor but accused did not paid any heed to her request. When the shuttering of the said lantar was opened, her aforesaid property got damaged. Meenakshi called 100 number, police came at the spot. Police registered FIR against the accused and recorded statement of witnesses. Accused was correctly identified by the witness.
9. PW6 HC Manoj has stated in his examination that on 2/3.06.2013 he was posted at PS Sarai Rohilla as a Constable. On that day he was on FIR No. 224/2013 State Vs. Babita Saini Pages 4 emergency duty alongwith the IO/SI Sushil Kumar. On that day he alongwith the IO went to a house no. A-800/56 Shastri Nagar Delhi, on reaching there we found that MCD staff were present there. He recorded statement of the complainant Meenakshi at the spot and prepared Rukka and same was handed over to him for registration of FIR from PS. Accordingly, he went to the PS and got the FIR register and returned back to the spot alongwith copy of FIR and original Rukka and same were handed over to the IO. IO recorded his statement.
10. PW7 Constable Rachna stated that on 10.06.13 he was posted as constable at PS Sarai Rohilla. On that day, IO SI Sushil Kumar joined me in the investigation of the case. Thereafter, he alongwith the IO went to house of accused Babita Saini i.e. C-48, DDA Flat, Gulabi Bagh, Delhi. At the above said address they met accused Babita Saini who handed over a photocopy of the documents related to above said property. Thereafter, IO inquired with accused regarding the incident and arrested her vide memo Ext. PW-7/A. Thereafter, IO release the accused on police bail. Thereafter, they returned back at the PS. IO recorded his statement and discharge him.
11. PW8 SI Sushil Kumar stated in his examination that on 01.06.2013, he was posted as SI at PS Sarai Rohilla, Delhi. On that day, he received DD no. 23A regarding unauthorized construction at A-800/55, Shastri Nagar near Lal Piau. Thereafter, he alongwith Ct. Manoj reached at the spot and met Smt. Meenakshi. She stated that at property no. A-800/9, Shastri Nagar a construction is going on and the owner of the said property was not doing the construction in lawful manner and without plan. She is also requested to inform the same to the concerned MCD. On 02.06.2013 vide letter no. 1712 dt. 02.06.2013, he sent a request to the Engineer MCD, SD Zone Delhi regarding visit of the above said FIR No. 224/2013 State Vs. Babita Saini Pages 5 property. His letter is Ex.PW8/A. On next day i.e 03.06.2013, he again went to the spot for the investigation of the case. At the spot, he recorded the statement of Meenakshi in which she stated that accused Babita Saini are resident of Gulabi Bagh and she is doing construction at property no. A-800/9, Shastri Nagar for some time. She also suggested her to complete the construction by taking all the safety manners. She also stated that accused Babita Saini to reimburse the loss occurred during the construction of the building if any. On 01.06.2013, a sound has been heard from the construction in the said property and the complainant had observed that she had got cracks in her house. When she came out from her house she came to know that her neighbours also got cracks in their houses. The said cracks was caused at the time of removal of shuttering of the Lanter in the said property. In the meantime, the officers of MCD also came at the spot. They had inspected the property and the under construction going on in the property. After the inspection, the MCD officers had stated to him that the under construction property as dangerous. Thereafter, he prepared a rukka upon her statement. The rukka is Ex.PW8/B. Thereafter, he handed over the rukka to Ct. Manoj for registration of FIR. Ct. Manoj went to PS and got the FIR registered. He also prepared the site plan at the instance of complainant PW8/X. Ct. Manoj came back at the spot and handed over the rukka and copy of FIR to him. Thereafter, MCD officer started the demolition of the under construction property. The demolition took place for about 2-3 days. He recorded the statement of Junior Engineer namely Harjinder Singh. During investigation, he served notice to accused Babita Saini for the production of documents regarding the ownership of property no. A-800/9, Shastri Nagar, Delhi. The notice is Ex.PW8/C. On 10.06.2013, accused handed over the photocopied documents regarding the ownership of the above-said property. He arrested accused Babita on 10.06.2013 and released her on police bail after her FIR No. 224/2013 State Vs. Babita Saini Pages 6 personal bond and surety bond. The arrest memo of the accused is Ex.PW7/A. Thereafter, he prepared the challan and submitted before the court. Accused Babita Saini was correctly identified by the accused.
12. After conclusion of prosecution evidence, statement of accused recorded u/s 313 r/w 281 Cr.P.C was recorded by this court on 23.03.2021 in which accused claimed her innocence and stated that all the prosecution witnesses have falsely deposed against her. She denied the prosecution evidence in its entirety.
13. No DE was led by the accused.
14. I have heard ld. Counsel for the accused and perused the record.
Appreciation of Evidence
15. For the above purpose, I find it imperative to refer to the relevant provision of law.
16. 288. Negligent conduct with respect to pulling down or repairing buildings.--Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
17. 336. Act endangering life or personal safety of others.--Whoever FIR No. 224/2013 State Vs. Babita Saini Pages 7 does 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 three months, or with fine which may extend to two hundred and fifty rupees, or with both.
18. A combined reading of above stated provision would reveal that, in order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned U/s 288/336 IPC:
(a) The accused was pulling down or repairing the building;
(b) The accused omitted to take such order with that building as was sufficient to guard against probable danger to human life from the fall of the building or any part thereof;
(c) The omission complained of was due to negligence or with the knowledge of such probable danger.
(d) Accused did some act;
(e) He did act rashly or negligently; and
(f) Such act endangered human life or personal safety of others.
19. In the present case, the complainant Ms. Meenaxi Sharma could not depose before this court as she passed away before her evidence could be recorded. Therefore to prove its case prosecution relied on other residents of the locality in question.
FIR No. 224/2013 State Vs. Babita Saini Pages 8
20. PW-1 Gayatri Devi is one such resident, residing at A-800/55 Shastri Nagar, during her examination she had stated that, because of the ongoing construction activity at accused's house, her house suffered damage; during her cross examination the witness stated that she does not remember if any photographs were taken by her when the damage occurred in her house. Supposed, photographs of the house of PW-1, however, was brought on record by PW-8 which are identified as Ex.P1 (Colly.), the probative value of such photographs shall be discussed in the later part of this judgment. Witness simply stated that her house suffered damage, however, if the construction of her house was new or old, or what kind of damage her house suffered has not been stated by her.
21. For the sake of succinctness, I shall be discussing the deposition of PW-2 and PW-5 together. Both witnesses are residents/occupants of the locality where the house of the accused is situated. It is inescapable to note both above stated prosecution witnesses were also cross examined under section 154 Indian Evidence Act, by the prosecution. PW-2 went on to state that the construction activity in the house of the accused did not cause any damage in her house. During the examination of PW-5, she identified and described the property of the accused wrongly, she stated that the construction activity if any by the accused took place in property bearing no. A9/1 instead of property number A-800/9, however she did state that property of the accused did get demolished by MCD officials, and that her property bearing no. A-800/56 got damaged due to the construction activity by the accused. In its entirety both witnesses were found to be unreliable to bring home the guilt FIR No. 224/2013 State Vs. Babita Saini Pages 9 of the accused, as they neither supported version of prosecution nor any part of their testimony found to be relevant to satisfy the ingredients required under section 288 and 336 of Indian Penal Code.
22. PW-4 is a Junior Engineer Civil, MCD, who in the facts of the present case could have been a material witness, however this witness as well was cross examined by the State under section 154 of Indian evidence Act. PW-4 stated that a complaint was made to office of Deputy Commissioner about a dangerous building, however, the witness stated that he was not aware of the address of the building, or who the owner of the building was and that the IO never interrogated him, during the entire investigation; this witness also went on to state that he was not present when the inspection and consequent direction of demolition of dangerous construction was made by the Deputy Commissioner, however this witnesses testified that he was present at the spot when the demolition took place.
23. At this stage, it is relevant to note, that the demolition of building in question is not a matter of contest but an admitted fact. Further what is interesting to note that the inspection report of the construction that took place at the accused's property, as to how the building/construction was found dangerous, is not part of the record, for reasons best known to the prosecution, none of the witnesses tendered such report in evidence. Witness PW-4 merely stated, "the building was lean towards front park side when we reached there to demolish the same"(sic). However, in the entire evidence attention of this court has not been brought to any photographs/videography or report that could corroborate this statement of the witness. Furthermore, during cross examination, PW-4 also stated that, no notice of impending demolition was FIR No. 224/2013 State Vs. Babita Saini Pages 10 ever sent to the accused. Further, in addition to the inspection report, the entire evidence is also conspicuously silent as to the demolition report and the photographs taken by the MCD officials during such demolition.
24. PW- 3, PW-6 and PW-7 are only formal witnesses, and therefore their testimonies are not being discussed.
25. PW-8 is the Investigating Officer of the present case, he has narrated the version of the prosecution as per the contents of charge-sheet. However, during his cross examination, he went on to state that, since he is not an expert in the field, he is not aware if the building in question was being constructed dangerously. In his examination in chief PW-8 had stated that he had taken 11 photographs of the cracks that occurred in the houses of the neighbours, however all the photograph in question have been taken on 03.06.2013 i.e. on the day of the demolition and as per own admission of the witness, no photographs were taken on 01.06.2013, i.e. the day of complaint when the cracks were reported to have occurred. All the 11 photographs have been exhibited as Ex. P1(colly.). I have perused the entire set of photographs, all the photographs appear to show cracks and fissures in walls, however these photographs do not sufficiently prove to which house/building such photographs belong, there are no identification marks available to associate these cracks with the construction of the house of the accused, i.e it does not even sufficiently prove if such walls/houses in question belongs to the same locality as that of the accused. Furthermore, theses photographs have not been supported by a certificate under section 65-B of Indian Evidence Act, even for the sake of arguments, if it is assumed that objection as to admissibility of such photographs have been waived by defence, the relevancy & probative FIR No. 224/2013 State Vs. Babita Saini Pages 11 value of these photographs still remains weak, for reasons stated above. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
26. It is the cardinal principle of the criminal law is that the accused is presumed to be innocent till she is proved guilty. The prime burden of the prosecution in the present case was to establish that the construction activity carried out by the accused was so rash and negligent to cause any probable danger. As discussed above PW-2 and PW-5 did not support the version of prosecution, hence placing reliance on their deposition shall be futile. As far as PW-1 is concerned, she did state that cracks in her house occurred due to the construction activity in accused's house, however her deposition is not enough to conclude beyond reasonable doubts that such cracks occurred due to lack of sufficient care and safety measures on the part of the accused. Admittedly in the present case, MCD which is civic body, entrusted with the responsibility to ensure proper safety measures during construction activities in Delhi, demolished the alleged dangerous portion of the property in question, but surprisingly enough, their inspection report which is a pre-requisite for any such demolition activity, is not part of evidence, neither any of the concerned official who witnessed such inspection or drew the inspection report was brought to depose. In fact the demolition report is also not part of evidence. The entire evidence of the prosecution appears to have been based on bland testimonies. In such circumstances, accused cannot be convicted on presumptions or surmises, rather, all the ingredients including rash or negligent act as mentioned U/s 288/336 IPC are required to be established.
FIR No. 224/2013 State Vs. Babita Saini Pages 12
27. The findings given by Hon'ble Apex Court in case titled as B.C. Ramachandra Vs. State of Karanataka, 2007 Cri. L.J 475. are relevant and re- produced as under:
"In criminal proceedings, the burden of proving negligence as an essen- tial ingredient of the offence lies on the prosecution. The said ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur"
The IO has failed to properly and comprehensively investigate this case as to what exact precautions or steps, the accused persons ought to have taken for averting the accident/incident.
The possibility of the occurrence of the incident on account of miscalculation, human error or error of judgment cannot be ruled out. There is not even an iota of incriminating evidence against the accused to fix her liability U/s. 288/336 IPC. The prosecution has failed to prove its case by not leading convincing and cogent evidence and thus have failed to discharge the onus placed upon it. Hence, the accused is entitled to benefit of the doubt.
In light of above discussion, accused namely Babita Saini is acquitted for the offence punishable U/s 288/336 IPC.
Bail bonds surety bonds already available on record stands extended for a further period of six months in terms of section 437A Cr.P.C File be consigned to record room. Digitally signed CHARU by CHARU ASIWAL ASIWAL Date: 2021.11.29 16:27:54 +0530 PRONOUNCED IN THE OPEN COURT (CHARU ASIWAL) TODAY ON 02th DECEMBER, 2021 MM-04 (CENTRAL), DELHI FIR No. 224/2013 State Vs. Babita Saini Pages 13