Delhi District Court
State vs Kuldeep & Ors on 6 February, 2016
State v/s Kuldeep & ors
FIR No.226/10
PS Palam Village
IN THE COURT OF Dr. PANKAJ SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
FIR No.226/10
PS: Palam Village
U/S 336/34 IPC
State V/S Kuldeep & ors
C No. 230/02
U.ID No 02405R0607802010
Date of Institution: 30.09.2011
Name of the Complainant SI Kailash Chand
No. D3767
PS Palam Village
Name and address of accused persons (1) Kuldeep
(already convicted vide plea
bargaining proceedings
dt. 08.02.2013)
(2) Vijay @ Vicky
s/o Sh. Ram Kumar
r/o RZG1/46, Mahavir Enclave,
New Delhi.
(3)Vishal
s/o Sh. Ram Kumar
r/o RZG1/46, Mahavir Enclave,
New Delhi.
Charge framed against accused u/s 336/34 IPC
Plea of accused persons Pleaded not guilty
Case No. 230/2
UID No. 02405R0607802010 Page no. 1 of 13
State v/s Kuldeep & ors
FIR No.226/10
PS Palam Village
Final Order Acquitted
Date for announcing the orders 06.02.2016
JUDGMENT
The brief facts and pre trial procedure
1. Charge u/s 336/34 IPC was framed against the accused persons that "on 12.11.2010 at H.No. RZF1/343, Gali No. 3, Mahavir Enclave, Palam Colony, New Delhi within the jurisdiction of PS Palam Village all accused persons were in furtherance of their common intention constructing the said building without approval of Map from MCD and without having permission to build five storey building and the said building was curved due to new construction beside the said building as endanger the life of the person residing in neighbourhood and therefore they were charged for the above mentioned offence to which they pleaded not guilty and claimed trial".
Trial
2. To prove the charges, prosecution has cited seven witnesses in the list of prosecution witnesses and examined five witnesses out of them and thereafter Prosecution Evidence was closed on 04.02.2016.
It is pertinent to mention here that inadvertently two witnesses have been examined as PW3. Henceforth DO shall be read as PW3A.
3. PW1 Shanti Devi deposed that on 03.10.2009 she entered into a collaboration agreement with Vijay and Vishal to construct a five storey building out of which there was parking on the ground floor and Case No. 230/2 UID No. 02405R0607802010 Page no. 2 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village first and the top floor were to be owned by her and the second and third floor were to be owned by the accused persons. The accused persons completed the construction in six months and they started living in the said building from 10.06.2010. She along with her family were residing at the first floor and they had given the top floor to one Mr. David on rent before 15 days of the incident. The second and third floor were sold by the accused persons to one Ashok Choudhary and Arun Sahay respectively. Ashok Choudhary was living along with his family on the second floor and the third floor was vacant. On 12.11.2010 the said building slanted as one Mr. Kuldeep who owned the plot adjacent to this building had dug deep base (neev) as he was about to raise the construction on the said plot. Due to the digging work, there were cracks on the floor and walls of her building and building slanted towards the plot of Kuldeep Singh. Due to the digging work by Kuldeep Singh a pit had developed at the parking at the ground floor and the building slanted and there was danger to their lives. The base (neev) of the Kuldeep Singh was five feet deep and their base (neev) was three feet and there was no beam on the base and only soil was there due to which the building slanted. One Pritam Singh her neighbourer made a call to the police and police came and the building was vacated. The incident took place due to the fault of both i.e Kuldeep Singh and accused Vijay and Vishal as Kuldeep Singh dig deep base and her builder Vijay and Vishal did not lay proper base (Neev). They were stranded on road for fifteen days and were left homeless. Police investigated the matter from her.
Case No. 230/2UID No. 02405R0607802010 Page no. 3 of 13
State v/s Kuldeep & ors
FIR No.226/10
PS Palam Village
In cross examination she denied the suggestion that she had executed a sale deed in favour of Arun Sahare for third floor. She denied the suggestion that accused persons never sold any flat to Ashok Chaudhary and Arun Sahare at any point of time. She affirmed that she did not file the complaint against Vishal and Vijay to the DPC, rather it was against Kuldeep and Joginder for causing damages to her property. She voluntarily stated that she has filed separate complaint against Vijay and Vishal. She affirmed that document mark D2 is the same document which he had given to the DCP as well as IO of this case. She affirmed that the signature of Vijay are not there on collaboration agreement. She denied the suggestion that she got constructed five floors on her property in order to sell out the flats to innocent buyers and to gain wrongful consideration. She further denied the suggestion that she filed the complaint against accused persons in order to extort money from them.
4. PW2 Girish Kumar deposed that the property bearing no. RZF1/343 was purchased by her mother Smt. Shanti Devi in 1993. The property consists of 60 square yards. His mother had given on contract to raise the building on the said plot/property to Vijay and Vishal, in the year 2009, who are the builders and carrying their business in the name of Sai Builders. As per the agreement, the first and fourth floor were to be owned by them and second and third floor would be owned by the builders. The builders constructed the building in six/seven months. They started living in the first floor on 10.06.2010. They were Case No. 230/2 UID No. 02405R0607802010 Page no. 4 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village living at the first floor for the six months. In the second floor one Mr. Ashok Benick was residing and at the third floor was owned by one Arun Saharey but he had not occupied the third floor. The fourth floor was given to one Mr. David on rent by them. About15 days before tilting of the building, one Mr. Kuldeep Singh who owned the plot no. 342 adjacent to our building started digging work in his plot, to raise the construction there. Kuldeep Singh had dug about 5.5ft when their building tilted towards the plot of Kuldeep Singh. Their neighbourers had made complaint to the police and they had also complained to the police later on as they were confused and have to vacate the building. Their builders Vishal and Vijay had not raised their building on the proper foundation as it was only 3ft deep although the material used to construct the building was good. PW2 correctly identified the accused persons in the Court.
In cross examination, he affirmed that the building which got tilted is the same in which they are residing. He further affirmed that the building was declared dangerous after the incident in question. He affirmed that 21/2 storied building existed on the property of Kuldeep when their building was constructed and handed over to them by the builders. He affirmed that the said structure on Kuldeep's plot was demolished and then foundation was dug in the same by Kuldeep. He denied the suggestion that he has no knowledge about contents of agreement as deposed by her in her chief examination. He affirmed that two floor in the said building were sold by her mother. He denied the suggestion that the material used for construction of the building Case No. 230/2 UID No. 02405R0607802010 Page no. 5 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village was of top quality. He voluntarily stated that same was of reasonable quality. He affirmed that their building tilted when Kuldeep Singh started digging foundation in his plot which is adjacent to their building. He affirmed that Kuldeep Singh had dug foundation on his plot measuring about 521/2 feet in length at once. He denied the suggestion that Kuldeep Singh had used electric hammer for demolishing structure on his property. He denied the suggestion that accused persons did not construct the building in question. He affirmed that the building material has never been checked by any competent authority. He affirmed that there was submersible pump installed by Kulddep Singh in his plot. He affirmed that the building tilted due to submersible work in the plot of Kuldeep Singh as the water was going in foundation of their plot.
5. PW3 Pritam Singh deposed that the building in question is situated leaving one house and is having number 1/343, which belongs to Smt. Shanti Devi. The said building when constructed in the year 2010 was five storeyed. On 12.11.2010, the said building had tilted in the direction of his house at around 8.30/8.45PM. There was chaos and many persons had gathered there and he apprehending danger to his house had made the call to the police on 100 number. The building had tilted due to the digging work at the adjacent plot to the tilted building and also the foundation of the tilted building was also not that deep to sustain it.
In cross examination, he affirmed that several persons may be Case No. 230/2 UID No. 02405R0607802010 Page no. 6 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village coming to the building in question. He further affirmed that on the date of incident the foundation of building in question was filled with water the source of which was from the construction/digging foundation carried on at the relevant time by Kuldeep Singh. He affirmed that Kuldeep Singh demolished the structure of 2 stories on his plot.
6. PW3A SI Shanti Prakash deposed that he was the Duty Officer at the relevant time who proved the FIR no. 226/10 as Ex. PW3A/A and he also made his endorsement Ex. PW3A/B on the rukka.
7. PW4 Ashok Banik Chowdhary was residing at the propoerty in question at the second floor along with his family for six months prior to the tilting of building on 12.11.2010. He deposed that the building was constructed by the builders Vishal and Vijay @ Vicky, both brothers. He purchased the second floor (first floor as per registry) from the builders Vishal and Vijay for Rs. 20,00,000/ and the registered sale deed was done with the owner Smt. Shanti Devi. On 12.11.2010, he had gone to his office and at around 5.45 PM, he received telephone call from his family that building had tilted towards one side and they had evacuated the floor. After half an hour, he also received call from Vijay and he told him to meet him. When he came back from his office, he saw the building had tilted towards one side around one and half feet. He also met with Vijay and he had assured him that building will be in a right position. They were rendered homeless due to the tilting of Case No. 230/2 UID No. 02405R0607802010 Page no. 7 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village building as it was dangerous to live in the same. PW4 deposed that Vijay had provided an alternative accommodation to his family. The rent of the alternative accommodation was paid by Vijay for 56 months. Thereafter, the rent was paid by him. They were assured by the builder Vijay and Vishal that they will construct the parking and upper ground floor and Kuldeep who had dug adjoining plot had promised that he will construct the two upper floors. Builders Vijay and Vishal also started the work but they did not fulfill their promise and PW4 pressurized Kuldeep as he was raising construction on his plot. Thereafter, Kuldeep gave them compensation/money and they somehow raised the construction themselves. When he came back from his office and saw the building tilted, it was found that the foundation was not laid properly and was not deep enough to hold the building. Also the building material used in the foundation was sub standard and poor quality. Also the building plan was not sanctioned from the appropriate authority and same was without any sanctioned plan. When he started living in the building, he noticed within 34 months a major crack developed in the parking from front to back and same was visible. Shanti Devi informed both the accused about the crack and its repercussions and following this one of the agent of accused persons visited the property but no action to correct the faulty construction was taken by accused persons.
In cross examination he affirmed that a submersible pump was fitted in the adjacent plot belonging to Kuldeep. He affirmed that correct that the water from the pump was diverted to the plot of Case No. 230/2 UID No. 02405R0607802010 Page no. 8 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village Kuldeep and some time it was spill out in the back lane or plot.he denied that when the foundation was dug in the plot of Kuldeep same was filled with water. He denied the suggestion that he never made a complaint against accused Vishal in the police station. He denied the suggestion that accused Vishal is innocent and he is deposing falsely. He further denied the suggestion that no agreement to sell was entered with accused Vishal and him. He denied the suggestion that he has never made payment to accused Vishal. He affirmed that when he entered into sale and purchase with accused persons his floor was not constructed. He affirmed that their building tilted due to poor quality material used by the accused persons. He denied that the suggestion that his building tilted solely for the reason of digging work along side our wall by Kuldeep in the adjacent plot. He further denied the suggestion that he never named Vijay and Vishal in his complaint to police in writing.
8. PW5 SI K.C. Meena deposed that on 12.11.2010, during night Emergency duty, he received DD No. 70B (Ex.PW5/A) regarding the tilting of house/building in front of RZF1/347, Gali No. 3, Mahavir Enclave, New Delhi. He along with Ct. Deepak reached at the spot i.e. House No. RZF1/343, Gali No.3, Mahavir Enclave, New Delhi, where he noticed that five storeyed building at RZF1/343, constructed on 60 square yards plot having front 11.5ft and having length 52.5ft had tilted towards the left side about one feet. On the left side of the said tilted building, there is plot of 100 square yards having the property No. Case No. 230/2 UID No. 02405R0607802010 Page no. 9 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village RZF1/342, Mahavir Enclave, in which deep foundation was dug and pillars were raised. On inquiry, it was found that the same belonged to one Kuldeep. The foundation was completely filled with water. On inquiry it was revealed that the tilted building was constructed by the builders Vicky @ Vijay and Vishal on the plot of Smt. Shanti Devi w/o Nathu Ram and there was collaboration agreement between them for raising the building which was constructed around six months back. Residents of said building were vacated and the residents residing in the adjoining buildings were also vacated. He made his endorsement(Ex.PW5/B) on DD No. 70B. He sent Ct. Deepak with tehrir to the PS for registration of FIR. After registration of FIR, Ct. Deepak returned back to the spot and handed over to him the original tehrir and computerised copy of FIR Ex.PW3/A. Shanti Devi and her son Girish had gone away due to fear and they had returned after some time and he prepared the site plan Ex.PW5/C at the instance of Girish. Photographs of the building and adjoining plot were taken through private photographer. The gali was blocked as there was danger of falling of the building. ACP and SHO along with staff had also reached at the spot. ACP had informed MCD officials of Najafgarh Zone in the night but no MCD official came at the spot at that time. On the next day, MCD officials visited the spot on the written request of SHO and MCD staff demolished the whole building. As the matter was reported in the print and electronic media, alleged accused persons Vicky @ Vijay, Vishal and Kuldeep had gone underground. He had got clicked the photographs of the site. On 19.05.2011, he arrested accused Case No. 230/2 UID No. 02405R0607802010 Page no. 10 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village Kuldeep vide arrest memo Ex.PW5/D, which bears my signature at point A. He conducted the personal search of accused Kuldeep vide memo Ex.PW5/E. On 25.06.2011, accused persons namely Vijay @ Vicky and Vishal had surrendered before the Court and both the accused persons were formally arrested by him in the present case vide arrest memos Ex.PW5/F & Ex.PW5/G. Personal search of both the accused persons were conducted vide memos Ex.PW5/H & Ex.PW5/I. He interrogated accused Vijay @ Vicky and his disclosure statement was recorded by him vide Ex.PW5/J. During his investigation he recorded the statement of witnesses and prepared the challan and filed the same in the Court.
In cross examination he affirmed that Vijay and Vishal were responsible for tilting of the building of the complainant. He further affirmed that collaboration agreement does not bear the name of Vishal as any of the party. He affirmed that complainant had given a complaint to his senior officers against the accused Vijay @ Vicky and Vishal. He further affirmed that he has knowledge about involvement of accused Vishal and Vijay @ Vicky only on the basis of statement of complainant and others i.e. Girish(son of complainant), Ashok Banik.
After recording of prosecution evidence, PE was closed on 04.02.2016 and the matter was fixed for Statement of accused persons u/s 313Cr.P.C.
Conclusion
9. In this case notice of accusations was given to all the accused persons for offence u/s 336/34 IPC, wherein accused Vijay @ Vicky & Case No. 230/2 UID No. 02405R0607802010 Page no. 11 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village Vishal faced allegations that they constructed house No. RZF1/343, Gali No.3, Mahavir Enclave of complainant Shanti Devi and the base of the house was three feet deep which was endangering life of the persons residing in the neighbourhood and the said construction was without due approval from MCD. During the trial, PW1 appeared before the Court and stated that Kuldeep who is one of the accused in this case owned a plot adjacent to her building and he dug base(neev) to raise the construction of the said plot and due to digging work cracks developed on the floor and the wall of her building and thereafter building started slanting towards the plot of Kuldeep Singh. She further stated that the base of her building was three feet deep which constructed in collaboration with Vijay and Vishal and they did not lay proper base(neev). In her cross examination, she stated that she did not find any fault or defect in the construction work done by Vijay and Vishal and the building slanted only after six months of her possession and when Kuldeep started digging work on the adjacent plot. PW2 also stated that builder of their house Vijay and Vishal has not raised construction of their building on proper foundation and dug it up to three feet, although the material used to construct the building was good. PW3 was neighbour and PW4 was the resident of the same building of the complainant and in cross examination he stated that foundation laid by Vijay and Vishal was about 3.5feet deep which is seen from his eyes.
Conclusion
10. All prosecution was required to establish in this case that the Case No. 230/2 UID No. 02405R0607802010 Page no. 12 of 13 State v/s Kuldeep & ors FIR No.226/10 PS Palam Village act of the accused persons was so rash and negligent which could endanger human life or personal safety of others. The facts presented by the prosecution show that Kuldeep who owned adjacent plot and was constructing a building their, dug his base(neev) to five feet deep and left water running on the portion along side of the plot of the complainant which became the reason for slanting of the building of complainant. The allegations in the prosecution case regarding rash and negligent act by accused Vijay and Vishal have not been substantiated by any evidence whatsoever and neither the testimony of witnesses supported the same. Whatsoever evidence has come up do not show any incriminating evidence against accused Vijay and Vishal. To substantiate the allegations against accused Vijay and Vishal the prosecution was required to bring forensic evidence by collecting samples of the material used or by examining any expert in the field of construction who could have deposed before the Court that 03 or 3.5 feet deep foundation was the cause of slanting of building which could have endangered the life of inhabitants of the building and the neighbours. In the absence of any incriminating evidence against accused Vijay and Vishal both the accused are acquitted for the offence charged for. Bail bond in terms of Section 437A of Cr.P.C. furnished by both the accused persons.
File be consigned to the record room.
Announced in the Open Court (Dr. PANKAJ SHARMA)
on this 6th day of February, 2016 MM01: Dwarka : Delhi
Case No. 230/2
UID No. 02405R0607802010 Page no. 13 of 13