Delhi District Court
State vs . Akhleshwar on 6 January, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Akhleshwar
FIR NO: 740/06
P. S. Ambedkar Nagar
U/s 304 A IPC
Unique ID no. 02403R0650892007
JUDGMENT
Sl. No. of the case : 977/2 (15.12.2010) Date of its institution : 24.3.2007 Name of the complainant : Moharram Ali Date of Commission of offence : 27.9.2006 Name of the accused : Akhleshwar Singh Offence complained of : Section 304 A IPC Plea of accused : Not Guilty Case reserved for orders : 6.1.2014 Final Order : ACQUITTED Date of Judgment : 6.1.2014 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Akhleshwar pursuant to a charge sheet filed by the Police Station Ambedkar Nagar under section 304A Indian Penal Code, 1860 (for short IPC) subsequent to the investigation carried out by them in FIR no. 740/06.
State Vs. Akhleshwar 1/13 FIR no. 740/06
2. The broad essential facts as put forth by the prosecution are that on 27.9.2006 at about 11.15 am at D35, Jawahar Park, New Delhi accused got conducted construction/renovation work of his home in a rash and negligent manner and while the work was going on, the wall had fallen down, consequent to which one Sattar had died, thus committed an offence u/s 288/304 A IPC.
3. After the criminal law was set in motion, the investigating agency commenced the investigation and in the course of investigation prepared site plan, arrest and personal search memo of accused, recorded the statement of witnesses and after completion of other formalities laid the charge sheet for the offences punishable u/s 304A IPC.
4. Accused was formally charged under section 304 A IPC to which he pleaded not guilty and claimed to be tried.
5. To substantiate the charges, the prosecution examined as many as twelve witnesses. The prosecution exhibited number of documents which included, statement of complainant Mark A, rukka Ex.PW2/B, DD no. 6 Mark D1, site plan Ex.PW12/A, arrest and personal search of accused Ex.PW12/B and Ex.PW12/C respectively.
6. PW 1 HC Ved Prakash deposed that 27.9.2006 he was posted at PS Ambedkar Nagar and on receiving of DD no. 6 he reached the spot alongwith Ct. Bhagirath and found that one wall fallen down at the spot and one person was being taken out from the collapsed wall. He came to know at the spot that one injured was already removed to hospital. He conducted photograph of the spot from a private camera Ex.PH1 to PH6 with negatives. He sent dead body of deceased at AIIMS mortuary through Ct. Bhagirath. He went at AIIMS in search of the injured where no one was found. Then he came back at police post where complainant alongwith other persons had already reached, he recorded statement of complainant Moharram Ali, prepared rukka on the statement Ex.PW1/A, sent Ct. Hari Ram for registration of FIR, prepared inquest report of deceased and got the dead body identified. He was cross examined by Ld. Counsel State Vs. Akhleshwar 2/13 FIR no. 740/06 for the accused persons. He was cross examined by Ld. Counsel for the accused.
7. PW 2 HC Durvesh proved the FIR as Ex.PW2/A upon rukka Ex.PW2/B. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
8. PW 3 Smt. Raj Kumari deposed that she does not remember the exact date, month and year of the incident. She does not know about the facts of the present case but some police officials had come and taken photocopy of the ownership documents of property of D35A, Jawahar Park. She became hostile and was cross examined by Ld. APP for the State wherein she stated that she had not stated to the police in her statement mark X that on dated 27.9.06 the constructions work was going on at D35A and whole of the responsibility of construction work was lying with her son in law i.e accused Akhileshwar confronted with the portions A to A1 in her statement u/s 161 Cr.PC where it is not so recorded. She was not cross examined by Ld. Counsel for the accused despite according opportunity.
9. PW 4 Sh. Shamim deposed that on 27.9.06, he was engaged by Akhileshwar, the owner of H.no. D35/A, Jawahar Park to carry out the construction/repair work at the aforesaid house as a mason. Beside him, one Moharram, Sattar Naushad, Mangu Rukhi were also working as labourer with him. When they were repairing the wall of one of the rooms of the said house and were to put the column for the foundation, in the meantime, the wall of the said house collapsed and few labourers came under the debries of the wall due to which they sustained injuries. In the said incident, the labourer Sattar died. Thereafter, the police was informed who came to the spot. The injured persons have already been removed to the hospital in an ambulance. The said Sattar thereafter, died in the hospital. The police inquired about the incident from him and recorded his names and addresses. The wall collapsed on its own and there was no fault on the part of anyone including the owner of the said house. The accused is the son in law of the owner of the said house. The accused had never asked them to State Vs. Akhleshwar 3/13 FIR no. 740/06 carry on the construction work at the site nor he had made any payment for the construction work to them. He was cross examined by Ld. APP for the State wherein he stated that the police have not recorded his statement. He denies having stated that due to the rash and negligent act of the accused Akhileshwar who had awarded the contract for construction/repairing work at the site as despite their repeated request and declining not to demolish the walls of the house as the walls were very weak and it may fall down if the same is broken and despite our refusal to demolish the wall, the accused asked us to carry on the work to demolish the wall which resulted into the fall of the said wall in which the deceased Sattar had died and some other labourers had sustained injuries (confronted with the statement of the witness Mark A from portion A to A wherein it is so recorded). He denied the suggestion that that he is deposing falsely as he is won over by the accused. He further denied that he is deliberately not identifying the accused as the owner of the said house or that accused used to pay the daily wages to him and other labourers for the said work. He was cross examined by Ld. Counsel for the accused.
10. PW 5 Sh. Rukhi Mian deposed that he does not remember the date and month but it was about 56 years ago when he was doing the work of labour in a house at Jawahar Park. He does not know the number of the said house as he is illiterate and also due to the lapse of time. Apart from him Sh. Moharram, Sattar and Naushad were also working with him as labourer. On that day, when they were removing the plaster of the wall, in the meantime, the wall of the said house collapsed as the bricks of the said wall have been removed on which the wall was based. This work was asked them to carry on by the owner of the said house. The accused was also one of the family members of the owner of the said house who also used to remain present at the spot many times and he had told them to carry on this work, due to which the wall collapsed. He sustained injuries on his left leg. In the said incident, one Sattar also came under the State Vs. Akhleshwar 4/13 FIR no. 740/06 wall and sustained injuries. Thereafter, they have been taken to the hospital by the police. The deceased Sattar died on the spot. The police did not inquire about the incident from him. He was cross examined by Ld. Counsel for the accused.
11. PW 6 Sh. Imamddin proved the dead body identification memo of deceased as Ex.PW1/C. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
12. PW 7 Sh. Rojadin proved the dead body identification memo of deceased as Ex.PW1/B. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
13. PW 8 Sh. Moharam Ali deposed that he does not remember the date but it was sometime in the month of September, 2006 when he was working under the supervision of the contractor Shamim at D35A, Jawahar Park, Ambedkar Nagar who called me to do the work there as some construction work was going on. When they were working there, one wall which was already erected in the said building got collapsed as its foundation was very weak and in the said fall of wall, one Sattar who was also working as beldar died as the entire wall fell on him. He also sustained injuries in the said falling of the wall. Apart from him, one Naushad, Nasruddin and Mansoor were also doing the work as labourer. He was cross examined by Ld. APP for the State wherein he admitted that his LTI was taken by the police which is appearing at point A on document Mark A but at the time of putting his LTI, it was blank. He denies having made any such statement that the owner of the said building one Akhileshwar had hired him on a daily wages of Rs.100/ to work as a labourer in the construction site i.e D35A, Jawahar Park where during the work, one wall collapsed and fell on the deceased Sattar who was also working as a labourers apart from other labourer. He denied that on 27.9.2006, incident had taken place due to the rash and negligent act of the owner of the said building who insisted us to continue with the work State Vs. Akhleshwar 5/13 FIR no. 740/06 of construction despite being caution to him by the mason Sh. Shamim (confronted with the portion A to A where it is so written). He denied the suggestion that he is deposing falsely as he is won over by the accused. He further denied the suggestion that the incident had taken place due to the rash and negligent act of the accused who asked us to continue with the construction work despite being warned by all of them that the foundation of the said wall is very weak and there is no support to resist the said wall. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
14. PW 9 Sh. Nasruddin deposed that he does not remember the date but it was sometime in the month of September, 2006 when he was working under the supervision of the contractor Shamim at D35A, Jawahar Park, Ambedkar Nagar who called him to do the work there as some construction work was going on. When they were working there, one wall which was already erected in the said building got collapsed as its foundation was very weak and in the said fall of wall, one Sattar who was also working as beldar died as the entire wall fell on him. He also sustained injuries in the said falling of the wall. Apart from him, one Naushad, Nasruddin and Mansoor were also doing the work as labourer. He was cross examined by Ld. APP for the State wherein he denied that his statement was recorded by the police. He further denied having made any statement Mark B that the owner of the said building one Akhileshwar had hired him on a daily wages of Rs.100/ to work as a labourer in the construction site i.e D35A, Jawahar Park where during the work, one wall collapsed and fell on the deceased Sattar who was also working as a labourers apart from other labourer. He denied that on 27.9.2006, incident had taken place due to the rash and negligent act of the owner of the said building who insisted them to continue with the work of construction despite being caution to him by the mason Sh. Shamim (confronted with the portion A to A where it is so written). He denied the suggestion that he is deposing falsely as he is State Vs. Akhleshwar 6/13 FIR no. 740/06 won over by the accused. He further denied the suggestion that the incident had taken place due to the rash and negligent act of the accused who asked them to continue with the construction work despite being warned by all of them that the foundation of the said wall is very weak and there is no support to resist the said wall. He further denied the suggestion that that the accused has asked them to continue for the work despite being warned to him. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
15. PW 10 Sh. Naushad deposed that he does not remember the date but it was sometime in the month of September, 2006 when he was working under the supervision of the contractor Shamim at D35A, Jawahar Park, Ambedkar Nagar who called him to do the work there as some construction work was going on. When they were working there, one wall which was already erected in the said building got collapsed as its foundation was very weak and in the said fall of wall, one Sattar who was also working as beldar died as the entire wall fell on him. He also sustained injuries in the said falling of the wall. Apart from him, one Naushad, Nasruddin and Mansoor were also doing the work as labourer. He was cross examined by Ld. APP for the State wherein he denied that his statement was recorded by the police. He further denies having made any statement Mark C that the owner of the said building one Akhileshwar had hired him on a daily wages of Rs.100/ to work as a labourer in the construction site i.e D35A, Jawahar Park where during the work, one wall collapsed and fell on the deceased Sattar who was also working as a labourers apart from other labourer. He denied that on 27.9.2006, incident had taken place due to the rash and negligent act of the owner of the said building who insisted them to continue with the work of construction despite being caution to him by the mason Sh. Shamim (confronted with the portion A to A where it is so written). He denied the suggestion that he is deposing falsely as he is won over by the accused. He further denied the suggestion that the incident had taken State Vs. Akhleshwar 7/13 FIR no. 740/06 place due to the rash and negligent act of the accused who asked them to continue with the construction work despite being warned by all of us that the foundation of the said wall is very weak and there is no support to resist the said wall. He further denied the suggestion that the accused has asked them to continue for the work despite being warned to him. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
16. PW 11 Sh Mansoor deposed that he does not remember the date but it was sometime in the month of September, 2006 when he was working under the supervision of the contractor Shamim at D35A, Jawahar Park, Ambedkar Nagar who called them to do the work there as some construction work was going on. When they were working there, one wall which was already erected in the said building got collapsed as its foundation was very weak and in the said fall of wall, one Sattar who was also working as beldar died as the entire wall fell on him. He also sustained injuries in the said falling of the wall. Apart from him, one Naushad, Nasruddin and Mansoor were also doing the work as labourer. He was cross examined by Ld. APP for the State wherein he denied that his statement was recorded by the police. He further denies having made any statement Mark D that the owner of the said building one Akhileshwar had hired him on a daily wages of Rs.100/ to work as a labourer in the construction site i.e D35A, Jawahar Park where during the work, one wall collapsed and fell on the deceased Sattar who was also working as a labourers apart from other labourer. He denied that on 27.9.2006, incident had taken place due to the rash and negligent act of the owner of the said building who insisted them to continue with the work of construction despite being caution to him by the mason Sh. Shamim (confronted with the portion A to A where it is so written). He denied the suggestion that he is deposing falsely as he is won over by the accused. He further denied the suggestion that the incident had taken place due to the rash and negligent act of the accused who asked State Vs. Akhleshwar 8/13 FIR no. 740/06 them to continue with the construction work despite being warned by all of us that the foundation of the said wall is very weak and there is no support to resist the said wall. He further denied the suggestion that the accused has asked them to continue for the work despite being warned to him. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
17. PW 12 SI Harsahay deposed that on 27.9.06, he was posted at PS Ambedkar Nagar and on that day after the registration of the FIR on the statement of one Moharram Ali, the further investigation was marked to him. During the course of investigation, the first investigating officer HC Ved Prakash handed over copy of the original rukka and FIR. Thereafter, he alongwith the complainant Moharram Ali reached the spot i.e H.no. D35A, Jawahar Park, Ambedkar Nagar, New Delhi and prepared the site plan at his instance being Ex.PW12/A. Thereafter, he searched for the accused and at about 6 pm he was arrested from his residence i.e D35A, Jawahar Park in presence of complainant vide memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. He recorded the statement of witnesses including some labourers who were present at the spot at the time of incident on 28.9.2006. Thereafter, the further investigation was marked again to HC Ved Prakash. He was cross examined by Ld. Counsel for the accused.
18. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 19.12.2013.
19. The accused was examined under the provision of section 313 Criminal Procedure Code, 1973 (for short 'the Code') and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated and has nothing to do with the construction work that was being carried on at the spot on the date of the incident. He, however, did not choose to lead defence evidence.
20. It is argued by the Ld. APP for State that the case of the prosecution has been duly State Vs. Akhleshwar 9/13 FIR no. 740/06 proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
21. On the other hand, it is canvassed by Ld. Counsel for the accused that he has been falsely implicated which is evident from the fact that most of the prosecution witnesses have not supported the case of the prosecution.
22. I have heard the learned Assistant Public Prosecutor and the learned Advocate for the accused at length and carefully perused the record in extenso.
23. Accused Akhleshwar is indicted for offence punishable u/s 304 A IPC. The said provision is reproduced below.
304A Causing death by negligence Whoever caused 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.
24. For bringing home the guilt of the accused, it was incumbent upon the prosecution to have proved that death of deceased Sattar was caused by the direct rash or negligent act of the accused and the act must be sufficient cause without intervention of another's negligence. There must, therefore, be a direct nexus between death of a person and a rash and negligent act of the accused.
25. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the 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 in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. The hazard must be of such a State Vs. Akhleshwar 10/13 FIR no. 740/06 degree that injury was most likely to be occasioned thereby.
26. Before I proceed to give my finding on the abovesaid aspects, it is pertinent to note that Ld. Counsel for the accused has not oppugned the factum death of Sattar on the given date. The same stands also established by the testimony of PW 6 Sh. Imamuddin and PW 7 Sh. Rojadin who have proved the dead body identification statement as Ex.PW1/C and Ex.PW1/B respectively. Post mortem report is also admitted by the accused as Ex.A1.
27. In order to prove the second aspect of rashness or negligence on the part of the accused, prosecution has examined number of witnesses who were stated to be employed as labourers on the place and at time of incident in question but to the dismay of the prosecution most of the witnesses have not supported its case. Witness PW 4 Shamim has claimed to be working with the deceased labourer Sattar on 27.9.2006 at H.no. D35A, Jawahar Park to carry out the construction/repair work but in the latter part of his examination in chief, he ruled out any negligence on the part of the accused by deposing that the wall collapsed on its own. Consequently, he was cross examined by Ld. APP for the State wherein he denied making any statement to the police regarding the negligent act of the accused Akhleshwar. He denied that he or any other labourer had refused to demolish the wall and despite that, they were compelled to carry on the work of demolishing the wall. In his cross examination, he also ruled out the presence of the accused at the place of occurrence on the fateful day.
28. Similarly, witnesses PW 8 Sh. Mohram Ali, PW 9 Nasruddin, PW 10 Naushad and PW 11 Mansoor have all denied giving any statement to the police that accused had hired them on daily wages in the construction site i.e D35A, Jawahar Park to carry out the construction work where the wall collapsed leading to the death of deceased Sattar. They have also denied that the incident had taken place due to the rash or negligent State Vs. Akhleshwar 11/13 FIR no. 740/06 act of the owner of the said building who insisted upon carrying on the work of construction despite their objection to the same.
29. Now turning to the testimony of PW 5 Sh. Rukhi Mian who to some extent has supported the case of the prosecution. Although, he did not remember the date and month of the incident but he has deposed that on that day he alongwith other labourers were doing the work of labour on the house at Jawahar Park where accused was also present being one of the family members of the owner of the said house and who had told them to carry out the construction work. At that time, the wall collapsed leading to injuries on his left leg and Sattar also came under the said wall who then died due to severe injuries. In his cross examination, he categorically stated that the repair work was being done at the instance of the owner of the said house. He has also deposed that accused is neither the owner of the said house nor has ever made any payment to them for the construction work. In the latter part of his cross examination, he has also gone to the extent of deposing that there was no fault of anyone in the collapse of the wall and the wall collapsed on its own while the plaster of the said wall was being removed.
30. From the testimony of the above discussed prosecution's witnesses, it can be said that there is no incriminating evidence against the accused to connect him with the death of deceased Sattar. It has not been proved beyond the shadow of reasonable doubt by the prosecution that accused was the owner of the said house where the construction work was being carrying out or that accused was at the helm of the affairs of the said construction work or that due to his direct act of rashness or negligence, the wall of the said house collapsed leading to the death of one Sattar who came under it.
31. Rest of the witnesses/documents are formal in nature which certainly cannot warrant conviction of the accused. Accused was examined u/s 313 of the Code wherein he denied all the allegations against him and stated that he has been falsely implicated in State Vs. Akhleshwar 12/13 FIR no. 740/06 the present case as he was neither the owner of the said house nor had instructed the deceased to carry out any construction work. In the facts and circumstances of the case, it is clear that prosecution has not been able to produce any witness who could support the case of the prosecution in so far as involvement of accused Akhleshwar is concerned. Resultantly, accused Akhleshwar stands acquitted for the offence u/s 304 A IPC. He is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 6.1.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Akhleshwar 13/13 FIR no. 740/06