Delhi District Court
In Re: State vs Bheeka Ram on 3 February, 2016
IN THE COURT OF GAURAV RAO: ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SOUTH DISTRICT:SAKET COURTS : NEW DELHI
In Re: STATE VERSUS BHEEKA RAM
FIR No: 237/15
U/s 288 & 336 IPC
P.S. Saket
Date of Institution of Case : 13.08.2015
Judgment Reserved for : 03.02.2016
Date of Judgment : 03.02.2016
JUDGMENT:
(a) The serial no. of the case : 124/2/15
(b) The date of commission of offence : 20.02.2015
(c)The name of complainant : Ashok Verma s/o Sh. Amar
Singh
The name, parentage, of accused : Bheeka Ram s/o Late Sh.
Sunder Lal
R/o S74/134, Harijan Camp,
Khanpur, New Delhi.
Present Address : As above
FIR No. 237/15 St. Vs. Bheeka Ram 1/10
(e) The offence complained of : U/s 288 & 336 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Accused acquitted
(h) The date of such order : 03.02.2016
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 20.02.2015 at about 01.20 p.m. at D189, Saket, New Delhi within the jurisdiction of PS Saket, accused being the contractor responsible for pulling down and repairing the wall of House no. D188 knowingly or negligently omitted to take such order with that building/wall as was sufficient to guard against any probable danger to human life from the fall of that wall due to which the said wall situated between house no. D189 and D188 fell/gave way and thus thereby accused committed offence punishable U/s 288 & 336 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 09.11.2015 charge U/s 288 & 336 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. So far the prosecution has examined one witness only.
FIR No. 237/15 St. Vs. Bheeka Ram 2/10 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW01 Ashok Verma deposed that he has been living in the above said house for the last 15 years and it is very old construction sometime in 197374. He deposed that a stone from the adjoining building i.e. D188, fell down on his wall which was very old and dilapidated and might have got crashed since it was old. He deposed that he asked the owner / builder of the said house to repair the same, but he did not pay any heed. He deposed that he does not know how exactly the wall fell, but it must have been fallen down due to the fault of the owner / builder or may be because it was very old wall. He deposed that he does not remember anything else regarding this case. Thereafter this witness was cross examined by Ld. APP for the State after declaring him hostile.
5. During his cross examination conducted by Ld. APP for the State he admitted that complaint Ex. PW 1/A bears his signature at point A. He admitted that in his said complaint he had told to police that construction activity was going on in H.No. D188 and that the same was being carried out without complying with municipal bylaws. He voluntarily stated that he later on came to know that they have got the Sanctioned Building Plan, however, the labour used to make a lot of nuisance and the building material was dumped on the main road and by lane. He admitted that he had told the police that the wall fell due to the FIR No. 237/15 St. Vs. Bheeka Ram 3/10 carelessness / negligence of the builder. He voluntarily stated that had extra care / protection been taken, the wall would not have fallen down, but he cannot tell as to exactly what was the negligence / carelessness because of which the wall fell. He denied the suggestion that he was deposing falsely. He denied the suggestion that IO recorded his supplementary statement MarkA. He voluntarily stated that apart from his complaint as was recorded on 20.02.2015, he did not give any other complaint to police. He denied the suggestion that he was deposing falsely.
6. During his cross examination conducted by Ld. Defence counsel he admitted that he does not know how the wall fell. He admitted that he cannot tell what was the negligence / carelessness of the accused which led to the present incident / falling down of the wall.
7. This so far is the prosecution evidence in the matter.
8. I have perused the records and after going through the records I am of the opinion that in view of deposition of PW01 as recorded today no purpose shall be served with further continuation of trial in the present case.
9. In order to prove its case and establish the guilt of the accused, the prosecution has to prove that the incident dated 20.02.2015 occurred as the FIR No. 237/15 St. Vs. Bheeka Ram 4/10 accused knowingly or negligently omitted to take such order while pulling down the wall in question i.e. the wall separating the house no. D188 and D189 as was sufficient to guard against probable danger to human life from the fall of that wall as a result the wall fell/gave way.
10. To prove the case against the accused, the prosecution was heavily relying upon the testimony of complainant i.e. PW01 Ashok Verma. However, he turned hostile and did not support the prosecution story on any material count. His testimony instead of helping the prosecution case casted serious doubts upon the prosecution story.
11. The relevant portion of the testimony of PW1 which threw serious doubts upon the prosecution case is reproduced hereunder: " ............ I do not know how exactly the wall fell, but it must have been fallen down due to the fault of the owner / builder or may be because it was very old wall. I do not remember anything else regarding this case."
12. During his cross examination by Ld. APP he stated as under:
"............... Vol. I later on came to know that they have got the Sanctioned Building Plan, however, the labour used to make a lot of nuisance and the building material was dumped on the main road and by lane............ Vol. Had extra care / protection been taken, FIR No. 237/15 St. Vs. Bheeka Ram 5/10 the wall would not have fallen down, but I cannot tell as to exactly what was the negligence / carelessness because of which the wall fell.......... It is wrong to suggest that IO recorded my supplementary statement MarkA. Vol. Apart from my complaint as was recorded on 20.02.2015, I did not give any other complaint to police."
13. During cross examination conducted by Ld. Defence counsel he stated as under: "It is correct that I do not know how the wall fell. It is correct that I cannot tell what was the negligence / carelessness of the accused which led to the present incident / falling down of the wall. "
14. So not only the deposition of PW1 who was the star/material witness of the prosecution case proved to be of no help to the prosecution and thus proved fatal/sounded death knell for the prosecution case but the witness also disowned his supplementary statement which is on record as Mark A. Furthermore a bare glance at the complaint/ statement of PW1 i.e. Ex. PW1/A coupled with the deposition recorded today would reveal that no offence u/s 288/336 IPC is made out against the accused. In his complaint Ex. PW1/A the witness had stated "Jo aaj mere maakan D189 weh D188 Saket ke beech ki karib 3 foot unchi deewar gir gayi..........yeh deewar thekedar ke laparwahi ke kaaran giri hai.......". Hence in his above statement he had merely stated that the wall fell down and the same fell down due to the negligence of the contractor. He FIR No. 237/15 St. Vs. Bheeka Ram 6/10 did not explain what was the negligence on the part of contractor which led to the wall giving way/falling down. Not only was the same not explained in Ex. PW1/A but even in Statement Mark A, which otherwise the witness disowned in toto, did he explain what was the negligence on the part of contractor which ultimately led to the falling of wall and as discussed above in his deposition he claimed that he did not know how exactly the wall fell down and went on to state that it may be it fell down as it was very old.
15. No doubt the witness claimed that the wall might have fallen because of the fault of the owner/builder or that had extra care been taken the wall would not have fallen down but he could not explain as to what was the fault or the negligence of the contractor/accused or what extra care should have been taken by him/he was bound to take which would have prevented the wall from fallen. In the absence of proof of any negligence whatsoever or a deliberate act which led to the falling of wall no liability either u/s 288 or 336 IPC can be fastened upon the accused. The complainant i.e. PW1 as well as the prosecution have miserably failed to prove any negligence or overt act on the part of the accused which led to the falling down of the wall. Furthermore not only was the structure pretty old, almost 40 years old as stated by the complainant himself but even otherwise during construction or demolition of a structure certain untoward incident do take place and there cannot be always of full proof mechanism to prevent any untoward incident/mishappening. It is only if any negligence or overt FIR No. 237/15 St. Vs. Bheeka Ram 7/10 act is proved on part of a particular individual which led to mishappening/incident that a liability can be fastened upon him but not otherwise.
16. Prosecution had proposed to examine 7 witnesses in all and apart from the complainant the remaining witnesses proposed to be examined are formal/official witnesses who came into the picture only after the alleged incident had occurred and information in this regard was received by them. As far as PW Sanjay Goel whose name appear at Sl. No. 4 is concerned he is the builder who had sub contracted the work of demolition to the accused. Role of PW Harbans Singh is confined only to proving the fact that he had given the contract of construction of building to Sanjay Goel. Remaining witnesses are police officials. None amongst them is the eye witness of the incident. Same has been conceded by Ld. APP for State during the course of arguments today. Accordingly their deposition shall not be sufficient to nail the accused and there shall always be shadow of doubts upon the prosecution story.
17. Hence continuation of trial shall be a exercise in futility with no prospect of a result in favour of the prosecution. In all likelihood prosecution case shall fall flat. PE is accordingly closed. SA is accordingly dispensed with as prosecution could not bring any worthy incriminating material on record against the accused.
FIR No. 237/15 St. Vs. Bheeka Ram 8/10
18. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R. (Criminal) 662).
19. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
20. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
FIR No. 237/15 St. Vs. Bheeka Ram 9/10
21. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 03.02.2016 ACMM (SD)/Saket/New Delhi
FIR No. 237/15 St. Vs. Bheeka Ram 10/10
FIR No. 237/15
PS Saket
03.02.2016
Present: Sh. Narender Yadav, ld. APP for the State.
Accused is on bail present today with counsel Sh. Neeraj Anand. PW Ashok Verma is present and he has been examined, cross examined and discharged as PW1.
No other PW is present today.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Accused is directed to furnish fresh bail bonds U/s 437A Cr.P.C. within one week from today.
His previous bail bonds stand canceled. Surety is discharged. Endorsement upon document if any, be canceled. Original document if any, be returned to its rightful claimant against receiving.
File be consigned to Record Room.
(Gaurav Rao)
ACMM/South/Saket/03.02.2016
FIR No. 237/15 St. Vs. Bheeka Ram 11/10