Delhi District Court
State vs Ajay Verma on 14 May, 2025
FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 42143/2016
Unique Case ID No. -: DLND020024512015
FIR No. -: 28/2014
Police Station -: Sagarpur
Section(s) -: 288/304A IPC
In the matter of -
STATE
VS.
AJAY VERMA
S/o Sh. Ram Nath Sharma
R/o RZ C-75, Dabri Extn., New Delhi.
.... Accused
1. Name of Complainant : ASI Yad Ram
2. Name of Accused : Ajay Verma
Offence complained of or
3. : 288/304A IPC
proved
4. Plea of Accused : Not guilty
5. Date of registration of FIR : 27.01.2014
6. Date of Filing of chargesheet : 30.03.2015
7. Date of Reserving Order : 06.05.2025
8. Date of Pronouncement : 14.05.2025
9. Final Order : ACQUITTAL
Page no. 1 / 18
FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Amit Sharma, Ld. Counsel for accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:
1. Briefly put, the case of the prosecution is that on 27.01.2014, at about 11 am at H. No. D5/60, Vashisht Park, New Delhi, within the jurisdiction of PS Sagarpur, the accused being the authorised representative/ authorised person on behalf of Rohtash Kumar Sharma, being incharge to look after the affairs of the construction work, knowingly or negligently omitted to take care /order with regard to the building under construction as was sufficient to guard against any probable danger to human life from the fall of such building and such negligent conduct of the accused, led to the death not amounting to culpable homicide, of a worker namely Bilochan and thus, the accused committed offences u/s 288/304A IPC of the Indian Penal Code. (hereinafter "IPC").
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused person Ajay Verma was filed u/s 288/304A IPC. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, copy of charge-sheet were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice under sections u/s 288/304A IPC was served upon the accused Ajay Verma.
4. During the course of trial, statement under Sec. 294 CrPC was recorded for the accused, wherein he admitted the genuineness of the documents including Post-mortem report no. 15/2014 dated 29.01.2014 of the deceased Bilochan, MLC No. 1036 dated 27.01.2014 of the deceased Bilochan and 12 photographs of the Page no. 2 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur spot, pursuant to which, the formal examination of prosecution witnesses mentioned at serial no. 4, 5 and 10 was dispensed with.
PROSECUTION EVIDENCE
4. In order to prove its case against the accused, the prosecution examined 7 witnesses. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
4.1. PW3/Rohtash Kumar Sharma deposed that he entered into an agreement (Ex. PW1/A) dated 16.01.2014 regarding construction of his house situated at D5/16, Vashisht Park, Pankha road, New Delhi, with accused Ajay Verma, at the labour rate of Rs. 145/- per square feet. He deposed that as per the agreement, all precautions regarding the construction of building on the abovesaid plot, was the responsibility of the accused Ajay Verma. He stated that the construction/building material including bricks, concrete, sand, cement etc. were provided by him to the accused. He stated that he was not present at the spot when the incident happened. He further deposed that when he returned, no labourer or contractor was there at the spot. He stated that he was told by a neighbour that some soil slipped from the site, and accordingly, the labourers left with the contractor and the injured. He stated that despite his instructions, the contractor Ajay Verma failed to provide any safety equipment/measure including helmet to the labourers. He correctly identified the accused before the Court.
He was duly cross-examined by the counsel for the accused.
4.2. PW1/Sudhir Kumar and PW2/Paramjit Kumar Sharma are attesting witnesses to the document Ex. PW1/A and proved the execution of the document (Ex. PW1/A) between Rohtash Kumar Sharma and accused Ajay Verma, for construction of the house situated at D5/16, Vasisth Park, Pankha road, New Delhi.
No cross-examination of PW1/Sudhir Kumar and PW2/Paramjit Page no. 3 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur Kumar Sharma was conducted, despite opportunity granted to the accused.
4.3. PW4/1st IO SI Yad Ram was examined who deposed that on 27.01.2014, upon receiving DD no.19A (Ex.PW4/A) pertaining to the present incident, he along with Ct. Anil reached to DDU Hospital, where he found that one Sh. Bilochan was declared brought dead vide MLC No. 1036/14, pursuant to which he along with Ct. Anil reached to the spot i.e. house no. D-5/16. Vashisht Park, New Delhi, where the crime team was called and photographs of the spot were taken. He stated that no eye witness was found at the spot on that day. He deposed that he prepared the rukka (Ex.PW4/B) at the spot, which was sent to the PS for the registration of FIR via Ct. Anil. He stated that pursuant to the registration of FIR, he prepared the site plan (Ex.PW4/C). He stated that during the course of investigation, he seized the agreement for construction (Ex.PW1/A) from the accused, vide seizure memo (Ex.PW4/D). He proved the arrest memo (Ex.PW4/E), personal search memo of accused (Ex.PW4/F). He stated that since the offences were bailable, therefore, the accused was released on police bail. He proved the dead body identification memo (Ex.PW4/G, Ex.PW4/H, Ex.PW4/I) of the deceased. He also proved the dead body handing over memo (Ex.PW4/J). Thereafter, he collected the photographs Ex.PW3/A (colly) of the spot from the crime team. He proved the scene of crime report prepared by ASI Pradeep Kumar (Ex. PW4/K). He stated that during investigation, he recorded the statements of the witnesses u/s 161 Cr.P.C., pursuant to which he was transferred. He correctly identified the accused.
He was duly cross-examined by the counsel for the accused.
4.4. PW5/HC Mahender Kumar proved the registration of FIR [Ex. PW5/A (OSR)], the certificate under Sec. 65B, Indian Evidence Act (Ex. PW5/B) and endorsement on the rukka (Ex. PW5/C).
No cross-examination of PW5/HC Mahender Kumar was conducted, despite opportunity granted to the accused.
Page no. 4 / 18FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur 4.5. PW6/2nd IO Inspector Chetan Mandia was examined, who deposed that the present file was marked to him for investigation on 16.02.2015. He stated that he recorded the supplementary statement of the owner of the premises in question on 17.03.2015. He stated that since the investigation was over, therefore, he prepared the charge-sheet and submitted the same before the Court on 30.03.2015.
He was duly cross-examined by the counsel for the accused.
4.6. PW7/HC Anil Kumar is a witness to the investigation and deposed on similar lines as PW4/1st IO SI Yad Ram.
He was duly cross-examined by the counsel for the accused.
At request of Ld. APP for the State, prosecution evidence was closed on 30.04.2025, after PW/ASI Pradeep was reported to have passed away.
STATEMENT OF ACCUSED
5. After the conclusion of prosecution evidence and before the start of defence evidence, the statement of the accused Ajay Verma was recorded u/s 313 Cr.PC on 01.05.2025, wherein he denied the case of the prosecution and stated that he has been falsely implicated in the present case. Since the accused chose to lead evidence in his defence, therefore, matter was listed for defence evidence.
DEFENCE EVIDENCE
6. In his defence, accused examined himself as DW1 pursuant to moving application under Sec. 315 CrPC. His testimony is discussed in brief as follows:
DW1/Ajay Verma deposed that he was working at another place on the date of incident and he got call from one co-labourer working with his brother (since deceased) that his brother, who was working in Raghu Nagar, Street No. 10, Page no. 5 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur had met with an accident. He stated that he rushed to the hospital, where he had given the said information to the police official present in the DDU Hospital, who made the call in his presence to the concerned police station. He stated that he was present at DDU Hospital with other workers, when IO reached the hospital and that he informed him about the place of incident which is also mentioned in DD No. 19A, Ex.PW4/A. He stated that the name of his brother (since deceased) was Shiv Karan and his nick name was Bilochan. He stated that two days after the incident, IO called him to the police station and upon the pretext of providing compensation to the family, he asked him to sign some blank sheets paper and some printed paper, however, he could not understand what was written on the said papers. He stated that the contract was made by the IO on the pretext of providing compensation to the family of the deceased, who was in fact his younger brother. He stated that his nick name is Ajay Verma and that his actual name is Jai Karan and that he is one of the family members of the deceased, who identified the dead body of the deceased vide dead body identification memo Ex.PW4/G. He produced original ration card bearing no. 124319 [Ex.DW1/A (OSR)] which includes the name of Shiv Karan (deceased) and Jai Karan. He also produced original PAN Card bearing no. FBKPS8488E [Ex.DW1/B (OSR)] and Adhaar Card bearing no. 517083092715 [Ex.DW1/C (OSR)], both in the name of Jai Karan, against which his photograph was affixed.
He also produced one election ID card bearing no. IDF0324699 [Ex.DW1/D (OSR)] in the name of Shiv Karan S/o Sh. Ram Nath. He stated that he alongwith, his brother Brijesh and his father, Ram Nath Verma identified the dead body of his younger brother Bilochan @ Shiv Karan and his father Ram Nath Verma collected the body of the deceased. He stated that he has been falsely implicated in the present matter.
He was duly cross-examined by the Ld. APP for the State.
ARGUMENTS
7. I have heard the learned APP for the State and learned counsel for the Page no. 6 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur accused at length. I have also given my thoughtful consideration to the material appearing on record.
8. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the witnesses have supported the case of the prosecution and the offence is proved by the State at the requisite threshold.
9. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. He has further argued that the version of the prosecution suffers from inherent contradictions, which makes it unreliable. He has argued that the prosecution has failed to lead any direct or scientific evidence pointing towards the guilt of the accused. It is his submission that even the place of incident has not been sufficiently proved by the prosecution and the accused has been falsely implicated in the present case. As such, it is prayed that the accused be acquitted for the said offence. To buttress his submissions, Ld. Counsel for the accused has placed reliance on judgments titled as Kunju Mohammed @ Khumani & Anr. Vs. State of Kerala (SC) decided on 11.08.2003. State Vs. Parveen Ram (Delhi District Court) decided on 13.04.2023.
ANALYSIS AND REASONS FOR THE DECISION
10. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish an offence under Section 288 of Indian Penal Code, the prosecution must fulfil all the essential ingredients of the offence. Section 288 of Indian Penal Code, is reproduced for ready reference-
"Section 288. Negligent conduct with respect to pulling down or re- pairing 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 Page no. 7 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur 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."
11. The scope and applicability of the section was discussed by the Hon'ble High Court of Bombay in the case of Vinayak Laxman Vartak, Consulting Engineer v. Laxmidas Vithaldas Ganatra and another 1991 SCC OnLine Bom 360, wherein it was held as follows:
"4. A close reading of the section would show that the starting point of the offence is the pulling down of a building or part thereof or repair- ing the same. It is while the pulling down or repairing is in process that the offence contemplated by the section can take place. The offence lies in the puller down or repairer knowingly or negligently omitting to do certain things. What the section requires the puller down or the re- pairer to do is "to take such order with that building". These words im- ply no more than the taking of such steps with reference to the build- ing. The purpose of taking the said steps is, "to guard against any prob- able danger to human life". The need to guard against the probable danger to human life is from "the fall of the building or any part thereof". Once the section is split up, it would be clear that the offence can be committed only while the building is being pulled down or re- paired. Once the pulling down or repairing is completed, the offence cannot be committed regardless of the deficiencies in the carrying out of repair."
12. Moving forward, it is pertinent to note the other provisions of law involved in the present case. Section 304A IPC provides for the offence of causing death by negligence or a rash act. It reads as under:
Section 304A. Causing death by rash or negligent act- Whoever causes the death of any person by doing any rash or negligent act not amount- ing to culpable homicide, shall be punished with imprisonment of ei- ther description for a term which may extend to two years, or with fine, or with both.
13. Thus, the gravamen of the offence under Section 304A IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of Superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 Page no. 8 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, 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."
14. Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173 . The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. 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. Unlike rashness, where the Page no. 9 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur 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."
Thus, there is a slight distinction between a rash act and a negligent act. Rashness conveys the idea of recklessness , i.e., doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed in the fact situation ought to take, in order to avoid injuries. Further, a direct link between the act of rashness or negligence of the accused and death of the victim, must be established by the prosecution to prove its case under Sec. 288/304A IPC.
15. It is alleged by the prosecution that the failure of contractor Ajay Verma to provide any safety equipment/measures including helmet to the labourers, leading to death of injured Bilochan, amounts to both "rashness" as well as "negligence" as the accused failed to provide measures despite instructions of the owner or the consciousness that such failure may result into injuries and that the accused also breached the duty of care owed by him towards the labourers, which included providing them with safety gear and such breach of duty led to fatal injuries being caused to labourer Bilochan. However, before recklessness or lack of duty to take care, can be imputed upon the accused, it is essential for the prosecution to establish that labour work was carried out in dangerous conditions or that the structure was unfit/likely to be dilapidated, requiring extra care.
16. In this regard, is seen that PW3/Rohtash has also deposed that despite his instructions, the contractor Ajay Verma failed to provide any safety equipment/measure including helmet to the labourers, which led to the present incident. However, there is no independent corroboration of the testimony of PW3/Rohtash to the above extent. This is because, PW3/Rohtash himself admits that Page no. 10 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur he was not present at the time of the incident and that, even when he returned, no labourer was present at the site. He has deposed that he was told by a neighbour that some soil slipped from the site, and accordingly, the labourers left the site with the contractor and the injured. However, no such neighbour or co-labourer who may have witnessed the alleged incident, has been cited by the prosecution, let alone be examined. Thus, it is safe to say that the prosecution has failed to examine any eyewitness to the alleged incident, who may depose as to the manner in which the accused was negligent in omitting to take order as was sufficient to guard against probable danger to human life.
17. Additionally, prosecution has also failed to even lead any scientific evidence to prove the same. In this regard, the Scene of Crime Report (Ex.PW4/K) is crucial for discussion. Although, the report mentions the collapse of wall at the property i.e., D-5/16, Vashishth Park, however it does not reflect any exhibit procured from the site. No blood sample or sample of debris, which could have been a crucial proof to opine upon the overall condition of the wall so collapsed, was even lifted as an exhibit by the prosecution, let alone be examined by experts. Neither any concrete quality test was conducted, nor any expert opinion was sought by the IO to determine the reason for the falling of the wall. No civil engineer was made a part of the crime investigation team either. Even the photographs Ex. PW3/A (Colly.) do not show traces of blood, if any.
18. Ideally, a report of expert/civil engineer, after due analysis of the debris of the broken wall, would have at least been indicative of factors such as the cementing properties of the debris, or as to quality of its mortar, to determine the age of such wall- as to whether it was built recently by the accused or was old. However, the prosecution has not brought any such scientific evidence as aforementioned to prove that the boundary wall at the property i.e., D-5/16, Vashisht Park collapsed upon the labourer, under the supervision of contractor Ajay Verma.
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19. Moving further, the prosecution has examined PW3/Rohtash, owner of the property at D-5/16, Vashishth Park, who has proved execution of an agreement (Ex. PW1/A) dated 16.01.2014 between him and the accused Ajay Verma regarding construction of his house situated at D5/16, Vasisth Park, Pankha road, New Delhi, at the labour rate of Rs. 145/- per square feet, which is also proved by attesting witnesses PW1/Sudhir and PW2/Paramjeet Singh. He has deposed that as per the agreement, all precautions regarding the construction of building on the abovesaid plot, was the responsibility of the accused Ajay Verma.
20. Thus, the prosecution has placed reliance upon the execution of agreement (Ex. PW1/A) dated 16.01.2014 between PW3/Rohtash and the accused Ajay Verma, to prove that it was Ajay Verma alone who was responsible for knowingly or negligently omitting to take such order as was sufficient to guard against any probable danger during the pulling down or the repair of the building, however, from the photographs Ex. PW3/A (Colly.) placed on record by the prosecution, it is rather clear that incident, if any, is alleged to have occurred during the demolition of the property at D5/16, Vasisht Park, Pankha road, for which the accused was never engaged in the first place by PW3/Rohtash. This is because, as per the agreement (Ex.PW1/A) executed between Rohtash Kumar and the accused, the accused was tasked to carry out only the construction work at the property i.e. D- 5/16, Vashisht Park, Pankha Road. However, the fact that no construction work was going on at the property in question, at the date and time of the incident is also affirmed by PW3/Rohtash in his cross-examination. Under such circumstances, the presence of Ajay Verma at the site of occurrence on the date and time of the incident remains doubtful. Though PW3/Rohtash in his cross-examination has stated that the accused had also lent his labour for the demolition work at D5/16, Vasisth Park, Pankha road, for which the labourers took daily wages from PW3/Rohtash, however, he has failed to produce proof of wages, if any, paid to the labour for such Page no. 12 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur demolition or any written contract for demolition awarded to the accused, which would make the accused wholly responsible for any untoward incident like the one at hand.
21. Though Ld. APP for the State has argued that once the accused has admitted the genuineness of photographs Ex. PW3/A (Colly.) in his statement under Sec. 294 CrPC, he cannot relegate back to questioning the content of such photographs, such as whether the photographs depict construction or demolition activity, however, the said argument of the prosecution is not tenable and deserves to be rejected. The admission of documents under Sec. 294 CrPC is only with respect to the genuineness of documents, for such documents to be read in evidence without their formal proof. The question of truthfulness or correctness of such documents still remains open for challenge. The contention of the accused to the extent that photographs Ex. PW3/A (Colly.) placed on record by the prosecution reflect demolition instead of construction activity which does not directly implicate the accused, assumes larger significance in a situation where even the most crucial prosecution witness PW3/Rohtash, has affirmed, in his cross-examination that, the photographs placed on record by the prosecution Ex. PW3/A (Colly.) do not belong to his plot D5/16, Vashisht park, Sagarpur. Such an admission by PW3/Rohtash serves as a fatal blow to the case of the prosecution, making it unreliable.
22. At this point, it is safe to state that even the place of incident has not been sufficiently proved by the prosecution. In this regard, it is pertinent to note that DD no. 19A dated 27.01.2014 (Ex.PW4/A) was, in fact the first hand information that launched the criminal procedure in motion and the investigation was marked to ASI Yad Ram. A careful perusal of DD no. 19A dated 27.01.2014 (Ex.PW4/A) reveals that an injured namely Bilochan, brought from site of accident at Gali no. 10, Raghu Nagar by his brother Jai Karan, was declared brought dead at DDU Hospital. However, in the rukka (Ex. PW4/A) prepared by ASI Yad Ram, the place Page no. 13 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur of incident has been mentioned to be D-5/16, Vashisht Park, Delhi, which is completely different from the one reported via DD no. 19A dated 27.01.2014 (Ex.PW4/A). It is rather ironical that despite mentioning in his rukka that he did not meet any eye witness in the hospital, PW4/IO SI Yad Ram has stated that there were lots of people present at the hospital, who informed him about the actual place of incident, however such individuals have not been cited as witnesses, let alone be examined. Though the IO has admitted the presence of general public/persons residing in neighbourhood, at the spot ( D-5/16, Vashisht Park, Delhi) at the time of investigation, however it is both apparent and surprising that no independent witness was made to join the investigation by the police.
23. The importance of joining public persons in the recovery proceedings has time and again been emphasised by Judicial pronouncements. At this juncture, reference is made to the judgment of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.
5. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have noted down their names and addresses etc. and would have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the pubic is an after thought Page no. 14 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
24. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well- settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
25. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of PW4/IO SI Yad Ram suggests that sincere efforts were made by him to involve independent witnesses in the investigation process. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100 (4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
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26. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgment of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
27. In the present case, it stands admitted even by PW4/IO SI Yad Ram and PW6/HC Anil that Vashisht Park, Dabri Extension and Raghu Nagar are different places. No sufficient reason has been cited by the prosecution as to circumstances under which the place of incident was changed by the IO and no witnesses, who allegedly updated the IO regarding the change of the place of incident, have been examined in this regard either, as discussed above. Additionally, the case of the prosecution suffered yet another fatal blow by the testimony of PW3/Rohtash, who has stated in his cross-examination that no incident ever took place on 27.01.2014 at his house bearing number D5/16, Vashisht park, Sagarpur. Under such circumstances, the argument of the Ld. Counsel for the accused that the accused has been falsely implicated cannot be ruled out.
28. Lastly, Ld. Counsel for the accused has argued that the accused has been falsely implicated by the IO, as the accused Ajay Verma @ Jai Karan, is the brother of the deceased Bilochan @ Shiv Karan, who took the latter to the DDU hospital on 27.01.2014 and was present when the IO/ASI Yad Ram arrived pursuant to DD no. 19A dated 27.01.2014 (Ex.PW4/A). He stated that although the correct place of incident was informed to the IO to be Gali no. 10, Raghu Nagar, however still he was called to the police station and upon the pretext of providing compensation to the family, he was asked to sign some blank sheets paper and some printed papers, which he could not understand due to want of knowledge. To prove Page no. 16 / 18 FIR No.28/2014 (State vs. Ajay Verma) PS Sagarpur his identity as Jai Karan, he has produced original ration card bearing no. 124319 [Ex.DW1/A (OSR)] which includes the name of Shiv Karan (deceased) and Jai Karan. He also produced original PAN Card bearing no. FBKPS8488E [Ex.DW1/B (OSR)] and Adhaar Card bearing no. 517083092715 [Ex.DW1/C (OSR)], both in the name of Jai Karan, Karan, against which the photograph of the accused was affixed.
29. The failure of PW4/IO SI Yad Ram in examining brother of the deceased (Jai Karan), who accompanied him to DDU hospital, and whose presence at the hospital is verified from the MLC on record, also makes the case of the prosecution suspicious, in view of the inconsistencies pointed out herein above, particularly with respect to the place of incident. At this stage, reference may be had to the judgment in the case of S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) wherein, the following observations were made by the Hon'ble Supreme Court held:
"..... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution."
30. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
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31. For proving the offence under sec. 288/304A IPC, prosecution was required to prove that while pulling down or repairing the building, the accused negligently or knowingly omitted to take such order as was sufficient to guard against probable danger and while so doing, he caused fatal injuries to Bilochan. The prosecution has failed to prove its case against the accused beyond reasonable doubt on the following counts - firstly, no eye-witness to the incident who may have proved the presence of the accused at the time of the incident or the alleged failure of the accused to provide safety gear to the injured, or the alleged collapse of the wall upon the injured, who eventually succumbed to the injuries, has been examined by the prosecution; secondly, the prosecution has failed to prove the place of incident beyond reasonable doubt; thirdly, the prosecution has failed to lead any scientific evidence or expert opinion that may point towards the involvement of the accused in the present case. In the present case, the evidence available on record is not sufficient to help the prosecution. No other independent eyewitness of the incident has been cited by the prosecution. There is no other circumstance or clinching piece of evidence such as CCTV footage, mentioned in the chargesheet, that points towards the guilt of the accused. The testimony of all the witnesses together, is insufficient to prove the allegations against the accused qua offence u/s. 288/304A IPC.
CONCLUSION
32. In view of the discussion hereinabove, the accused namely Ajay Verma S/o Sh. Ram Nath Sharma is hereby found not guilty and is ACQUITTED of the of-
fences under Sec. 288/304A IPC. Digitally signed ISHA by ISHA SINGH Date: Announced in open court SINGH 17:21:43 2025.05.14 +0530 in the presence of the accused (Isha Singh) JMFC-03/PHC/NDD/14.05.2025
Certified that this judgment contains 18 pages and each page bears my signa-
Digitally signedISHA by ture.
ISHA SINGH Date:
SINGH 2025.05.14 17:21:48 +0530 (Isha Singh) JMFC-03/PHC/NDD/14.05.2025 Page no. 18 / 18