Delhi District Court
State ...........Prosecution vs . on 26 April, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 157/2016
Police Station J. P. Kalan
Under Section(s) 288/337/304A IPC
Cr. Case no. 24957/2018
CNR no. DLSW020261722018
IN THE MATTER OF:
State ...........Prosecution
Vs.
Surender
S/o Sh. Tek Ram
R/o H. no.473, Manohar Panna,
Kair Village, New Delhi ............Accused
1. Name of complainant : SI Ram Niwas
2. Name of accused : Surender
3. Offences complained of : Under Sections 288/337/
304A of The Indian Penal
Code, 1860
4. Plea of accused : Not guilty
5. Date of commission of offence : 12.08.2016
6. Date of institution of case : 03.07.2018
7. Date of reserving judgment : 23.03.2023
8. Date of pronouncement : 26.04.2023
9. Final judgment : Acquitted
State Vs. Surender CNR no. DLSW020261722018 Page no.1/12
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.04.26
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offences punishable under Sections 288/337/304A of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity).
2. Shorn of unnecessary details, the case of prosecution is that on 12.08.2016 at about 04:20 PM, at the plot of Surender @ Sunder at Kail Village, New Delhi, the accused knowingly or negligently omitted to take such order with the boundary wall at that plot as is sufficient to guard against any probable danger to human life, as he did not provide for safety equipment, thereby causing simple injuries to the worker Bhagat (hereinafter, 'injured') and death of another worker Avdesh (hereinafter, 'deceased') not amounting to culpable homicide. After the registration of FIR, IO recorded the statements of witnesses under Section 161 Cr. P. C., prepared the site plan and got the site inspected by crime team. The accused was arrested and later, released on bail. After the culmination of investigation, chargesheet was filed against the accused.
3. Cognizance was taken of offences under Sections 288/337/304A of IPC and accused was summoned to face trial for the said offences. Upon his appearance, the copy of chargesheet was supplied to him in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. Based on the material filed along with chargesheet, State Vs. Surender CNR no. DLSW020261722018 Page no.2/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 notice of accusation under Sections 288/337/304A of IPC was served upon the accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR no. 157/16 dated 12.08.2016 PS J.P. Kalan alongwith certificate under Section 65B of Indian Evidence Act as Ex.A1 (colly), DD no.21A dated 12.08.2016 as Ex.A2, DD No.60B dated 27.08.2016 as Ex.A3, postmortem report as Ex.A4, statement of Manoj S/o Bhaiya Lal as Ex.A5, MLCs as Ex.A6 and Ex.A9, death summary as Ex.A7 and xray report as Ex.A8, under Section 294 of Cr. P. C.
5. During prosecution evidence, PW1 Suresh Kumar proved the statement vide which he identified the dead body of deceased as Ex.PW1/A and the dead body handing over memo as Ex.PW1/B. The witness was not crossexamined despite grant of opportunity. PW2 Bhagat deposed that on 12.08.2016, he along with his father, i.e. deceased, were constructing the boundary wall at the plot of accused. It started raining suddenly and they waited for the rain to stop. Thereafter, the deceased told him that they would not be doing further work due to bad weather. When they went near the wall to take their instruments, the wall suddenly collapsed on them due to which they sustained injuries. They were rushed to hospital. The incident happened as the accused had got the said wall constructed in an improper manner. The lower 4 to 5 layers of brick construction was done with sand and the top portion of the was constructed with cement due to which the lower portion of the wall succumbed to the weight of State Vs. Surender CNR no. DLSW020261722018 Page no.3/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 the upper cement construction. He correctly identified the accused present in the court and the spot of incident through photographs Ex.P1 (colly).
6. As PW1 Bhagwat did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of crossexamination, wherein he stated that there was bharat at the plot but the same was insufficient and they were also using sand from it for construction purposes. He admitted that the wall collapsed as there was no proper support and this fact was told to him by his father. He could not tell if the accused was pressurizing them to continue the construction work. In his crossexamination by accused, he admitted that he never went to the spot of incident. One Manish had taken them to the hospital but he could not recall the names of other persons. He stated that the plot was duly having bharat as per the photographs. He further admitted that there was heavy storm on the date of alleged incident. At the time of incident, the wall had reached about 810 layers of brick above the DPC and DPC was constructed with cement. He also admitted that construction was going on with the help of phatas / ballies, which were installed in a proper manner. He admitted that the accused helped his father in his medical treatment.
7. PW3 Ct. Mukesh Kumar had accompanied the IO to the spot upon receiving information about the alleged incident. In his crossexamination, he stated that IO had prepared the site plan in my presence on his own. IO had enquired the neighbors State Vs. Surender CNR no. DLSW020261722018 Page no.4/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 present at the spot, but did not serve any notice upon them to join the investigation. The IO did not click the photographs of spot in his presence. He could not recall if there were wooden planks or ballies at the spot or not. PW4 HC Praveen joined the investigation along with IO on 02.09.2016, when the IO arrested the accused vide arrest memo Ex.PW4/A and personally searched him vide personal search memo Ex.PW4/B.
8. PW5 Retired SI Ram Niwas (IO) deposed that upon receipt of DD no.21A regarding the incident, he went to RTRM Hospital along with Ct. Mukesh where the victims were found admitted and declared unfit for statement vide applications Ex.PW5/A1 and Ex.PW5/A2. Thereafter, they proceeded to the spot where he clicked the photographs of the spot and prepared tehrir Ex.PW5/A. After getting the FIR registered through Ct. Mukesh, he prepared the site plan Ex.PW5/B. On 27.08.2016, he received information vide DD no.60B from DDU Hospital that the victim Avdesh had died. He got his postmortem conducted and handed over the dead body to his relatives/son. He prepared brief report regarding the death of deceased Ex.PW5/C. He then interrogated the accused, arrested him and released him on police bail. He also received the medical documents of both victims during investigation vide application Ex.PW5/D. In the cross examination, PW5 stated that he met many public persons/villagers when he reached at the spot but no one agreed to join the investigation and no notice was served upon any of them. He did not issue any certificate U/s 65B Indian Evidence State Vs. Surender CNR no. DLSW020261722018 Page no.5/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 14:52:58 +0530 Act qua the photographs. He did not file any documentary proof regarding the alleged ownership of the plot in favour of accused and got to know about the same from the workers. There was no wooden plank or wooden rod when he went to the spot. He admitted that the photographs on record did not bear any date. He did not know whether there was any agreement between the owner of the plot and the injured qua the construction of boundary wall. He stated that the collapsed boundary wall could not be seen in the photographs.
9. On account of the admission made by accused under Section 294 Cr.P.C. qua the genuineness of FIR no. 157/16 dated 12.08.2016 PS J.P. Kalan alongwith certificate under Section 65B of Indian Evidence Act as Ex.A1 (colly), DD no.21A dated 12.08.2016 as Ex.A2, DD No.60B dated 27.08.2016 as Ex.A3, postmortem report as Ex.A4, statement of Manoj S/o Bhaiya Lal as Ex.A5, MLCs as Ex.A6 and Ex.A9, death summary as Ex.A7 and xray report as Ex.A8, PWs Manoj Kumar, Dr. Uttam Kanola, Dr. Marothia Dayavir, Dr. Suman Tiwari and DO/HC Prem Kumar, were dropped from the list of prosecution witnesses and formal proof of these documents was dispensed with.
10. Thereafter, the prosecution evidence was closed and separate statements of accused persons were recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused persons in evidence were put to them. The accused controverted all the allegations State Vs. Surender CNR no. DLSW020261722018 Page no.6/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 14:53:06 +0530 levelled against him and stated that he had been falsely implicated. The accused opted not to lead evidence in his defence. Thus, the defence evidence was closed and the matter was taken up for final arguments.
11. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The testimony of witnesses has remained unshaken on the point that the incident happened due to the negligence of accused. The MLC and PM report of deceased is also proved and there is no material discrepancy occurring in the prosecution evidence. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused be convicted of alleged offences.
12. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on various grounds. It is contended that it is not established beyond all reasonable doubts that the incident happened due to the negligent act of accused. The investigation has been done in mechanical manner and the testimony of the main witness is not reliable to prove the allegations against the accused.
13. Arguments heard. Record perused. Considered.
14. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would State Vs. Surender CNR no. DLSW020261722018 Page no.7/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 14:53:17 +0530 necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
15. Before delving into merits, it is pertinent to give a brief outline of offences for which the accused has been tried. Section 288 IPC prescribes punishment for knowingly or negligently omitting to take such order with the building as is sufficient to guard against any probable danger to human life from the fall of that building, while pulling down or repairing that building. Secondly, the provision of Section 337 IPC prescribes punishment for causing hurt to any person by such rash or negligent act and further, Section 304A makes punishable the causing of death due to such act.
16. At the outset, the fact that the deceased had died and injured had received simple injuries in the alleged incident due to collapsing of wall is not disputed by the accused. The MLCs and postmortem report stand duly proved in that regard. The cause of death has been opined in the postmortem report as the septicaemia due to unhealed infected wounds following blunt force trauma, which is possible in the manner as alleged by prosecution.
17. Having said that, the entire prosecution case now State Vs. Surender CNR no. DLSW020261722018 Page no.8/12 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.04.26 14:53:28 hinges on the testimony of PW2 i.e. the injured, who is the only witness stated to have seen the manner of falling of wall as he was one of the labourers working at the site along with deceased. However, as shall be discussed hereinafter, copious inconsistencies and contradictions have emerged in his testimony, and such as would fail to prove that accused had acted rashly or negligently while getting the boundary wall repaired.
18. Now, PW1 testified in his examinationinchief that the wall had collapsed as it was not got constructed by accused properly, as sand was used in the lower portion and cement in the upper portion. Nonetheless, the premise of prosecution case, as structured on the statement of PW1 given during investigation, is that accused was coercing them to finish the work expeditiously despite the fact that bharat was not done and material of wall was still wet. As per the prosecution story, the accused was negligent as he had not provided the safety equipment like phattas and ballies and wall did not have support. Not even once did the prosecution highlight that the lower portion of wall was made with sand which led to the unfortunate incident.
19. In fact, in his crossexamination, PW1 stated that he was not certain if the wall was not having proper support or if the accused was pressurizing them to continue doing the construction work of wall. He further admitted that phattas and ballies were duly installed with ropes at the site. Moreover, he admitted that bharat had been done at the plot as per the photographs. In this manner, the version of PW1 is wholly incoherent with the case State Vs. Surender CNR no. DLSW020261722018 Page no.9/12 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.04.26 initially set up by prosecution against the accused.
20. Furthermore, the story narrated by PW1 in his court testimony is not supported with any other material on record. No investigation has been conducted by IO with regard to the fact that sand was used in any part of the wall, or if the proportion of sand and cement was as per the prescribed norms or not. The IO also failed to send the material of wall to FSL for examination of its quality. Moving further, PW1 further stated that there was heavy storm when the incident happened. Neither this fact has been revealed in the chargesheet nor any enquiry as regards the intensity of the storm was conducted by the IO. There are glaring loopholes in the investigation on material facts, which raise reasonable doubts over the cause of the collapse of wall on the date of alleged incident. As such, it is not clear as to how the boundary wall at the plot of accused fell. Likewise, there is ambiguity as to in what aspects the accused was negligent or failed to exercise precautions to guard against any probable danger.
21. Besides, the IO stated in his crossexamination that he prepared the site plan on the basis of his own observations, The perusal thereof shows that point A is depicted to be the spot where the incident happened. No other detail of the spot is depicted in the site plan, which attenuates the veracity of this piece of evidence. The IO further stated in his crossexamination that there was no wooden plank or rod used for construction at the spot, which is contrary to the deposition of PW1 that there State Vs. Surender CNR no. DLSW020261722018 Page no.10/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 were phattas and ballies at the spot.
22. Even the collapsed boundary wall is not visible in the photographs allegedly clicked by IO when he proceeded to the spot after the incident. No document, whatsoever, has been produced on record that the particular land belonged to the accused or if any contract was given by him for the construction of said wall. All these factors shrouds doubt over the fact that IO had visited the spot on the date of incident and the possibility that the case was framed against the accused at the police station, without unearthing the correct state of affairs, could not be ruled out.
23. There is no other evidence, ocular or documentary, to show that accused had a legal duty to take such order with the wall, which had fallen, as is sufficient to guard against any probable danger. Similarly, there is nothing concrete on record to show as to how the accused was negligent in not taking order with the wall. Criminal liability cannot be fixed on accused on the basis of conjectures and surmises. The laxity shown on the part of IO to gather substantive evidence by conducting fair and proper investigation speaks volume about the partiality in inquiry undertaken by him, the benefit of which must accrue to the accused.
24. The upshot of the foregoing discussion is that prosecution has not adduced evidence, both oral and documentary, of such formidable nature as to deduce that the accused was liable to take order with the building as is sufficient State Vs. Surender CNR no. DLSW020261722018 Page no.11/12 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 to guard against any probable danger to human life from the fall of that building, and that by failing to do so, he conducted himself in such rash or negligent manner as to imperil human life and personal safety of others. The prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. As the basic ingredient of rashness or negligence has not been proved by prosecution so as to attract the offences of Sections 288/337/304A IPC, the inescapable conclusion is that the accused is entitled to benefit of doubt.
25. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Surender S/o Sh. Tek Ram R/o H. no.473, Manohar Panna, Kair Village, New Delhi is hereby acquitted of the offences punishable under Sections 288/337/304A of The Indian Penal Code, 1860.
Pronounced in open court in the Digitally signed by BHARTI presence of accused on 26.04.2023. BHARTI GARG GARG Date:
2023.04.26 14:54:08 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/26.04.2023 It is certified that this judgment contains twelve pages and each page has been signed by the undersigned.
BHARTI Digitally signed
by BHARTI GARG
GARG Date: 2023.04.26
14:54:17 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/26.04.2023
State Vs. Surender CNR no. DLSW020261722018 Page no.12/12