Delhi District Court
Criminal Case/138/2009 on 21 August, 2012
IN THE COURT OF METROPOLITAN MAGISTRATE-12
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Sanjay & Ors.
FIR No. 138/2009
Police Station : Chhawla
Under Section : 288/338 IPC
Unique Case ID Number: 02405R0096332012
Date of institution : 23.11.2009
Date of reserving : 07.08.2012
Date of pronouncement: 21.08.2012
JUDGMENT
a) Serial number of the case 194/01/12
b) Date of commission of 13.06.2009
offence
c) Name of the complainant Ms. Rani D/o Sh. Braham
Singh R/o D-758, Qutub Vihar
Phase-II, Goyla Dairy, New
Delhi
d) Name, parentage and (1) Sh. Sanjay Gupta
address of the accused S/o Sh. Ram Kishan Gupta
R/o D-758, Qutub Vihar
Phase-II, Goyla Dairy, New
Delhi.
State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 1 of 24
(2) Sh. Mukesh S/o Sh. Ram
Khiladi, R/o C-186, Qutub
Vihar, Phase-II, Goyla Dairy,
New Delhi
e) Offence complained of Section 288/338 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 21.08.2012
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused persons are being acquitted of the offence punishable under Sections 288/338 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 138/2009 Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. In nutshell, the case of the prosecution is that on 13.06.2009 at about 07.15 p.m. at house No. 758, Qutub Vihar, Phase-II, Goyla Dairy, the accused persons acted negligently by compelling the labourers to hastily raise a four inch wide wall, which collapsed during its construction causing grievous injury on the person of the complainant Ms. Rani.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 2 of 24173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed and the accused persons were consequently summoned.
4. The case was received by way of transfer by this Court on 01.05.2012.
CHARGE/ACCUSATION AGAINST THE ACCUSED PERSONS
5. Vide order dated 04.06.2010 passed by the learned predecessor of this Court, notice under Section 251 Cr.P.C. for the offence punishable under Sections 288/338 I.P.C. was served upon the accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. The prosecution in all examined seven witnesses.
7. PW-1 Ms. Rani, complainant/injured in the present case, deposed that accused Sh. Sanjay Gupta, who is her neighbour, had started construction at his house in the year 2009 and in the month of June 2009, construction of the second floor of his house was going on. She stated that on the second floor of his house, adjacent to the complainant's house, the accused Sh. Sanjay Gupta had constructed a wall only 04 inches in width and without any support. She stated that the said house was constructed by a contractor, who is father of the accused Sh. Mukesh. She stated that the accused Sh. Mukesh was working with his father in the house of the accused Sh. Sanjay Gupta. She deposed that in the morning of 13.06.2009 she went to the roof of her house and heard the accused Sh. Sanjay Gupta directing the State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 3 of 24labour to complete the work of construction of the aforesaid wall by all means on that day itself. She stated that she again went to the roof of her house at about 04.00 p.m. on the said day and at about 07.15 p.m. the aforesaid wall constructed by accused Sh. Mukesh on the direction of accused Sh. Sanjay Gupta fell upon her and as a result thereof she sustained injuries on her head and back. She deposed that she became unconscious and her younger sister namely Ms. Rita took her to a room at the ground floor of her house. She deposed that on 14.06.2009 she was taken to Ayushman hospital, Dwarka, New Delhi. She deposed that prior to the aforesaid accident, her parents had requested the accused Sh. Sanjay Gupta to construct the wall with atleast 09 inches width and with the support of some pillar, however, the accused Sh. Sanjay Gupta did not pay heed. She correctly identified both the accused persons in court.
8. PW-2 Ms. Rita, sister of the complainant/injured, supported the testimony of the complainant/injured. She stated that their neighbour accused Sh. Sanjay Gupta was raising construction at his house and in the month of June he had constructed a wall, 04 inches in width on the second floor of his house adjacent to their house. She deposed that in the morning of 13.06.2009 she alongwith her sister Ms. Rani (injured) went to the roof of their house and heard the accused Sh. Sanjay Gupta directing the labour to complete the work of construction of the aforesaid wall on the same day by all means. She deposed that thereafter the labour raised the wall of about 12 feet height in a hasty manner. She stated that in the evening while she was in the kitchen, her sister (complainant) went to the roof to collect dry clothes. She State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 4 of 24stated that she heard a noise and ran to the roof, where she saw her sister under the bricks of a collapsed wall. She stated that blood was oozing out from the head of her sister, who had become unconscious. She stated that she tried to remove the bricks from the body of her sister and asked the labour for help. She stated that in the meantime the mother of the accused Sh. Sanjay Gupta came to the spot and stated that nothing had happened to the complainant and instead it was them who had suffered loss due to the collapse of the wall. She stated that the labour and the mother of the accused Sh. Sanjay Gupta refused to help her. She deposed that thereafter she came down and asked for help from one Sh. Raje, who is their neighbour, and removed the complainant to the ground floor with the help of Sh. Raje. She deposed that thereafter she called the doctor, who gave stitches to her sister (complainant). She further deposed that when she came out she saw the mother of the accused Sh. Sanjay Gupta asking the labour to remove the rubble, which had fallen into her (Rita's) house. She stated that the labour entered their house and quickly removed the rubble. She stated that she did not know the name of the contractor who was employed by accused Sh. Sanjay Gupta for construction of the wall. She correctly identified the accused Sh. Sanjay in the Court.
9. PW-3 Sub-Inspector Narender Kumar is the duty officer. He stated that on 23.06.2009 at about 10.10 p.m. he received a rukka through Constable Kulbir sent by Sub-Inspector Surender Sharma and on the basis of the said rukka he registered FIR No.138/09 Ex. PW3/A and made endorsement Ex. PW3/B on the rukka.
FIR No. 138/2009 P.S.: Chhawla Page 5 of 2410. PW-4 Constable Kulbir stated that on 23.06.2009 on receipt of DD No. 21 A by Sub-Inspector Surender Sharma, he along with Sub-Inspector Surender Sharma went to Ayushman hospital, where the investigating officer Sub-Inspector Surender Sharma recorded statement of injured Ms. Rani, prepared a tehrir and handed over the same to him for registration of FIR. He deposed that he went to the police station, got the FIR registered and thereafter returned to the spot and handed over the original rukka and copy of the FIR to the investigating officer, who recorded his statement.
11. PW-5 Sh. Raj Kumar is the brother of the complainant/injured Ms. Rani. He deposed that on the day of incident, i.e. 13.06.2009, he alongwith his family had gone to the house of their relative at Rajpur. He stated that at the time of the incident only the complainant/injured and his sister namely Ms. Rita were present at their house. He stated that the wall in question did not fall in his presence. He deposed that he returned to his house at about 01.30 a.m. on 14.06.2009 on receipt of a telephone call. He stated that on 14.06.2009 the accused Sh. Sanjay Gupta came to his house and told him that he would get the complainant Ms. Rani treated in the hospital and would bear the expense thereof. He stated that he had taken photographs of the wall, which had been got repaired by the accused Sh. Sanjay Gupta on the intervening night of 13.06.2009 and 14.06.2009. He identified the photographs Ex. P-1 and Ex. P-2 as the photographs taken by him. He stated that the entire wall had been repaired and reconstructed in their absence while they were running around in the hospitals.
FIR No. 138/2009 P.S.: Chhawla Page 6 of 2412. PW-6 Sub-Inspector Surender Sharma is the investigating officer. He deposed that on 23.06.2009 on receipt of DD No. 21 A he alongwith Constable Kulbir reached at Ayushman hospital, where he met injured Ms. Rani, who had been admitted on 14.06.2009 vide MLC No. 1369/09. He stated that he recorded the statement Ex. PW1/A of the injured and got the present case registered through Constable Kulbir. He stated that he collected the MLC on which opinion as to injuries was 'grievous'. He deposed that he prepared site plan Ex. PW6/B, recorded statements of witnesses, arrested the accused Sh. Sanjay Gupta vide arrest memo Ex. PW6/E and accused Sh. Mukesh vide arrest memo Ex. PW6/F and collected photographs Ex. P-1 and P-2, which had been clicked by the brother of the injured.
13. PW-7 Dr. Rachna Gupta deposed that the injured Ms. Rani had been admitted in Ayushman hospital on 14.06.2009 at 10.20 p.m. and she was examined by Dr. B.N. Pati, however, at that time MLC had not been prepared as parties had agreed to settlement. She deposed that on 22.06.2009, at request of the attendant of the injured, she prepared MLC No. 1369/09 of the injured Ex. PW7/A. She stated that she did not examine the injured Ms. Rani on 22.06.2009 before preparing MLC and prepared the same on the basis of history recorded in the file by Dr. B.N. Pati. She stated that as per the MLC the nature of the injuries is grievous.
STATEMENT / DEFENCE OF THE ACCUSED
14. In their statements recorded under Section 313 Cr.P.C., the accused persons denied the entire evidence put to them. The accused State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 7 of 24Sh. Sanjay Gupta categorically stated that the allegations against him are false and have been leveled to extort money from him. He further stated that as per his information the complainant had fallen from stairs due to heavy wind/storm. The accused Sh. Mukesh specifically stated that he had never undertaken any construction job at the house of the accused Sh. Sanjay Gupta as alleged. The accused persons led evidence in their defence.
EVIDENCE OF THE DEFENCE
15. The accused persons examined one witness in their defence. DW-1 Sh. Balram Soni, Scientific Assistant, Regional Meteorological Centre brought a meteorological report dated 13.06.2009 Ex. DW1/A. He stated that as per the said report on 13.06.2009 the maximum wind speed was 40 KMPH from East direction at 1952 IST and there was weather phenomenon of thunder.
ARGUMENTS
16. Addressing final arguments, Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State, submitted that the complainant/PW-1 and her sister PW-2 had identified the accused persons and had supported the prosecution story. He contended that the prosecution has successfully established the charge against the accused persons. He submitted that by way of the testimony of PW-7 grievous injuries have been proved to have been caused to the complainant. He urged that the prosecution has accordingly successfully established its case warranting conviction of the accused persons.
FIR No. 138/2009 P.S.: Chhawla Page 8 of 2417. On the other hand, Sh. K.K. Sharma, Advocate, learned counsel for the accused contended that the prosecution had failed to establish its case inasmuch as there are multiple and material contradictions in the testimony of the prosecution witnesses. He argued that the complainant had sustained injuries due to fall in the staircase and the accused persons had been falsely implicated on account of pre-existing disputes between the accused Sh. Sanjay and the complainant's family who are neighbours. He urged that the prosecution has failed miserably in proving its case against the accused persons, who deserve to be acquitted. In support of his submissions, learned defence counsel relied upon the decisions in:
(i) State of Karnataka v. Venkatesh, 1992 Cri LJ 707; and
(ii) Khedu Mohton & Ors. v. State of Bihar, [1971] 1 SCC 839.
ANALYSIS AND FINDINGS
18. The record has been thoroughly and carefully perused. The respective submissions of the learned Assistant Public Prosecutor for the State and learned counsel for the accused persons have been considered.
I. Charge under Section 288 I.P.C.
19. In order to bring home the guilt of the accused persons in respect of the offence punishable under Section 288 I.P.C. charged against them, the prosecution was required to prove the following:
i) The accused persons were either pulling down or repairing a building;
ii) There was an omission on part of the accused persons in State v. Sanjay & Ors.FIR No. 138/2009 P.S.: Chhawla Page 9 of 24
taking such order with such building as is sufficient to guard against any probable danger to human life from the fall of that building or any part thereof; and
iii) The omission was either with knowledge or negligent.
20. As regards the first of the aforesaid ingredients, as per the prosecution story, the accused Sh. Sanjay Gupta was raising construction at his house and at the relevant time construction of the second floor of his house was in progress. In her examination-in-chief, the complainant/PW-1 stated, "And he had started construction in the year 2009 in his house and construction was going on in the month June 2009 at the second floor of his house. Accused had constructed a wall on the second floor of his house which adjacent to our house. The said wall he had constructed without any support and the wall was only four inch in width." Thus, it is clear that the wall in question which had allegedly fallen on the complainant/injured was either in the process of being raised/constructed or had recently been raised/constructed. It is not the case of the prosecution that the said wall or the building in question was either being pulled down or being repaired as is required for attracting the provisions of Section 288 I.P.C. Rather it is the clear case of the prosecution that the house of accused Sh. Sanjay, including the wall in question, was being freshly constructed. The same is the direct opposite of the expression 'pulling down' and is not even covered within the meaning of the expression 'repairing' as used in Section 288 I.P.C. Thus, the provisions of Section 288 I.P.C. cannot be said to be attracted in the present case. Learned Assistant Public Prosecutor for the State submitted that such a view ought not to be taken as else State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 10 of 24there is no other provision in the Penal Code under which the present case could be said to be covered. The said argument can hardly be sustained as it is trite that a penal statute ought to be strictly interpreted and accordingly 'pulling down or repairing' cannot be read as inclusive of 'constructing or raising'.
21. In view of the aforesaid, there is no need to examine the case with respect to the remaining two essential ingredients for proving the charge under Section 288 I.P.C. as stated above. However, besides the aforesaid, there are other factors too for doubting the prosecution version.
Re: Other factors for doubting the prosecution version
i) Delay in lodging of FIR
22. As admitted by the complainant/PW-1 in her cross-examination, the police was not called when the incident took place. No explanation was forthcoming from the complainant/PW-1 or even her sister PW-2 or brother PW-5 as to why they did not report the incident immediately.
23. PW-1 stated in her cross-examination that her brother informed the police about the incident on 14.06.2009. However, no satisfactory proof of any such information given to the police on 14.06.2009 by the complainant's brother has been adduced before the Court. Instead, as per material placed on record, the incident was reported to the police for the first time vide DD No. 21 A dated 23.06.2009 by the brother of the complainant.
24. While the incident complained of is dated 13.06.2009, as per the State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 11 of 24statement of the complainant Ex. PW-1/A, the said statement was recorded and FIR registered only on 23.06.2009, i.e. after a delay of ten days from the date of the alleged incident. The delay of about 10 days in reporting of the offence/filing of the complaint and consequently in the registration of FIR in a case of this nature throws a great deal of doubt on the prosecution story. It was the duty of the prosecution to explain the delay satisfactorily. The delay has, however, not been sufficiently explained. The failure of the prosecution to do so undoubtedly is a circumstance of considerable importance and same tends to cast a cloud of doubt over the prosecution story.
ii) Delay in taking the injured to the hospital
25. As per the statement of the complainant Ex. PW-1/A as well as the testimony of the complainant/PW-1, the alleged incident took place on 13.06.2009 at about 07.15 p.m. However, as per the statement Ex. PW1/A, the complainant/injured/PW-1 was taken to the hospital on 14.06.2009. Perusal of the MLC Ex. PW-7/A of the injured reveals that as per the same she arrived at the hospital on 14.06.2009 at 10.20 p.m. Thus, there was a delay of more than 27 hours in taking the injured/complainant to the hospital.
26. While there is no such assertion either in the statement Ex. PW-1/A of the complainant or even in her testimony recorded in Court, as per the testimony of PW-2, who is sister of the complainant, after removing the injured/complainant to the ground floor, she had called a doctor, who gave stitches to the injured. No name of other particulars of the said doctor have, however, been furnished either by State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 12 of 24PW-2 or any other prosecution witness. As stated by PW-2 in her cross-examination, no prescription had been taken from the said alleged doctor, who came to give stitches to the injured. No details of the number of stitches and the body part on which the same were received by the injured/complainant have been mentioned either by PW-2 or any other witness. In the above circumstances, the version of PW-2 that a doctor had been called immediately after the incident and he gave stitches to the injured/complainant is highly unbelievable. Thus, it is clear that the first medical aid, if any, was provided to the injured/complainant only on 14.06.2009 at or after 10.20 p.m., i.e. after about 27 hours from the time at which injuries were allegedly sustained by her.
27. If the complainant had in fact sustained such serious injures as alleged, she would have been immediately rushed to the hospital. Even if there was none available at the relevant time to rush her to the hospital, she could have been taken to the hospital at least when her brother and other family members returned home at around 01.30 a.m. on 14.06.2009. Further, even if not during night time, the injured could at least have been taken to the hospital in the morning on 14.06.2009. However, the family of the injured preferred to wait until the night of the day following the incident to take her to the hospital. Such conduct cannot be regarded as normal and, therefore, tends to cast doubt on the truth of the allegations.
28. There was considerable delay in taking the injured to the hospital and the delay in question has not been explained by the prosecution.
FIR No. 138/2009 P.S.: Chhawla Page 13 of 24The said circumstance throws doubt on the prosecution case.
iii) Absence of independent witnesses
29. Besides the police officials and doctor, the only witnesses cited and examined by the prosecution are the injured/complainant herself and her sister and brother. The witnesses PW-1 and PW-2, who spoke of the occurrence are both interested witnesses and it is unsafe to place reliance on their testimony.
30. No independent public witness to the alleged incident has either been examined or even cited by the prosecution. As per the testimony of PW-2, when upon hearing a noise she ran to the roof, saw her sister (complainant) under the bricks of the collapsed wall and tried to remove the bricks from over the body of the complainant, the labourers were merely watching and she also asked them for help, however, they refused to help her. Thus, it is evident from the testimony of PW-2 that at the time of the alleged incident certain labourers were present at the spot and would have either witnessed the incident or at least seen the complainant lying under the bricks after the collapse of the wall. However, neither has any of the said labourers been cited or examined as a witness by the prosecution nor has any effort on part of the investigating officer been shown to have been made to locate and join any such labourer as a witness. The same tends to render the prosecution story under a cloud of doubt.
iv) Lapses in the testimony of individual witnesses
31. PW-1 stated in her cross-examination that she did not remember State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 14 of 24the time when she went to the roof in the morning. While in her statement Ex. PW1/A she stated that on the day of the incident at about 07.00 p.m. her sister was present alongwith her on the terrace, in her cross-examination, she denied having stated so to the police. Further, she did not remember the time of her admission to the hospital. While PW-1 averred that her brother had informed the police on 14.06.2009, there is no evidence available on record in support of the same.
32. PW-2, in her examination-in-chief, stated, "Thereafter I came down and asked Raje who is our neighbourer for help." However, in her cross-examination, she stated, "I do not know where Raje lives. Volunteer he was sitting in a house of our neighbour." While in the first instance Raje had been referred to by PW-2 as a neighbour, later on she stated that she did not even know where he stayed and, without naming such neighbour, she simply volunteered that Raje was sitting in the house of a neighbour. The said Raje is a person introduced in the prosecution story for the first time in the testimony of PW-2. He has neither been cited nor examined as a witness. He has not even been referred to by PW-2 in her statement under Section 161 Cr.P.C.
33. In her statement recorded under Section 161 Cr.P.C., PW-2 stated that after the wall fell on her sister the accused Sh. Sanjay and Sh. Mukesh stated, "koi khaas chot nahi hai va jaldi jaldi eetein samaint lo...". However, in her examination-in-chief, PW-2 stated that while she was asking the labourers for help in removing bricks from the body of her sister, the mother of accused Sh. Sanjay Gupta came there and said that nothing had happened to the complainant and rather they State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 15 of 24had suffered losses due to fall of the wall. There is nothing in her testimony to suggest that at the time of or immediately after the fall of the wall in question either of the two accused persons was present at the spot. Thus, the testimony of PW-2 is contradictory to her statement under Section 161 Cr.P.C. on the above aspect.
34. Further, while there is no such assertion in her statement recorded under Section 161 Cr.P.C., in her examination-in-chief, PW-2 stated that after removing the complainant to the ground floor, she called the doctor, who gave stitches to the complainant. However, there is no mention in the MLC Ex. PW-7/A of any such stitches having been present on the person of the complainant at the time of her admission in the hospital on the following day. Thus, the averment of PW-2 as to a doctor having been called by her immediately after the incident appears to have been concocted, perhaps with a view to fill up lacunae in the prosecution story.
35. In her cross-examination, PW-2 stated that she did not object to the removal of rubble from her house at the direction of the mother of the accused Sh. Sanjay Gupta. It does not appear to be reasonable behaviour on part of PW-2 not to have objected to the removal of rubble when the same clearly constituted important evidence of the incident which resulted in the alleged injuries to her sister.
36. In his examination-in-chief, PW-5 stated that the entire wall was repaired by the accused Sh. Sanjay Gupta on the night intervening 13.06.2009 and 14.06.2009 and that it was reconstructed in their absence while they were running around in the hospitals. However, in State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 16 of 24his cross-examination, he stated that they had gone to the hospital on 14.06.2009 at 4/4.30 p.m. there is inherent contradiction in the statements of PW-5 in his examination-in-chief and cross-examination.
37. Further, while in his examination-in-chief, PW-5 stated that he took photographs of the repaired wall on the night intervening 13.06.2009 and 14.06.2009, in his cross-examination, he deposed that he took photographs on 14.06.2009 at 10/10.30 a.m.
38. In view of the aforesaid, the aforesaid prosecution witnesses, i.e. PW-1, PW-2 and PW-5, who are the prime witnesses, are found to be unreliable.
v) Contradictions in testimony of prosecution witnesses
39. There are material contradictions in the statements of the prosecution witnesses which create a reasonable doubt as to whether in fact the incident as alleged had even taken place.
40. In the statement Ex. PW-1/A of the complainant it is stated that on 13.06.2009 at about 07.00 p.m., when the complainant alongwith her sister was present at the terrace, the accused Sh. Sanjay, who was standing in his house, was scolding the labourers and asking them to quickly raise the wall and howsoever finish the said work on the same day itself. However, as per the testimony of PW-1, it was when she went to the roof of her house in the 'morning time' on 13.06.2009 that the accused Sh. Sanjay Gupta was directing the labour to quickly raise the wall and complete the work of its construction on that day itself. Thus, there is contradiction in the two statements of the complainant as State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 17 of 24to the time at which the accused Sh. Sanjay Gupta gave the aforesaid direction to the labour as alleged.
41. While as per the statement of complainant Ex. PW-1/A, at 07.00 p.m. the complainant's sister was also present at the terrace alongwith her, in her testimony in Court, the complainant/PW-1 did not mention that her sister had accompanied her to the terrace when she went there at 07.00 p.m. or that her sister was either already present there or arrived later on. Further, as per the testimony of PW-2, while in the morning of 13.06.2009 she had gone alongwith her sister (complainant) to the roof of their house, in the evening her sister (complainant) had gone to the roof to collect dry clothes and PW-2 had herself ran to the roof only on hearing a noise. Thus, there is contradiction as to whether PW-2/sister of the complainant was present at the terrace/roof of the complainant's house at the time of the alleged incident or not.
42. While, in her examination-in-chief, PW-1 stated that on the evening of 13.06.2009 she again went to the roof of her house at about 07.00 p.m. and the wall fell on her at about 07.15 p.m., in her cross- examination, she stated that she had gone to the roof at about 06.30 p.m. on that day and was present there for 10-15 minutes. Thus, not only is there contradiction in the testimony of PW-1 as to the time at which she had allegedly gone to the roof of her house in the evening, but there is also a doubt as to whether she was even present at the roof at the alleged time when allegedly a wall fell upon her.
43. The statement Ex. PW-1/A of the complainant records that on 13.06.2009 at about 07.00 p.m. the complainant was present at the State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 18 of 24terrace of her house alongwith her sister namely Rita. However, in her cross-examination, PW-1/complainant denied having told the police that on the day of the incident she was present on the roof with her sister Ms. Rita.
44. While as per the MLC of the complainant Ex. PW-7/A, the complainant/injured had arrived at the hospital on 14.06.2009 at 10.20 p.m., PW-5 stated that they went to the hospital on 14.06.2009 at 4/4.30 p.m.
45. While as per PW-4, he alongwith the investigating officer/PW-6 had gone to Ayushman hospital on 23.06.2009 at about 08.30 p.m. and he had handed over the rukka to the duty officer at the police station at about 09.30 p.m., PW-6 though did not remember the time when they had left the police station for Ayushman hospital, stated that he prepared the rukka in the afternoon. As per DD No. 21 A dated 23.06.2009 Ex. PW6/A, the same was received at the police station at 07.40 p.m. If that be so, the rukka could not have been prepared in the afternoon as stated by the investigating officer PW-6. Thus, there is contradiction in the statements of PW-4 and PW-6.
vi) Complicity of accused Sh. Mukesh
46. As regards accused Sh. Sanjay Gupta there are allegations to the effect that he was owner of the house adjacent to that of the complainant and had instructed the labour employed for construction in his house to quickly complete the work of construction of the wall in question on the same day by all means. The relevant portion of the testimony of the complainant/PW-1 in this regard is as under:
State v. Sanjay & Ors.FIR No. 138/2009 P.S.: Chhawla Page 19 of 24
"Accused Sanjay Gupta today present in the court is our neighbour. And he had started construction in the year 2009 in his house and construction was going on in the month of June 2009 at the second floor of his house. Accused had constructed a wall on the second floor of his house which adjacent to our house. The said wall he had constructed without any support and the wall was only four inch in width. ... On 13.06.2009 in morning time I went at the roof of my house and at that time accused Sanjay Gupta was giving the direction to the labourer that "Aaj ye diwar ka kaam pura ho jana chahiye and jaldi jaldi chinai karo" and also directed that "mujhe nahi pata tum kaise karoge"."
47. However, as regards the accused Sh. Mukesh, the relevant portion of the testimony of PW-1 is as under:
"The said house was constructed by the contractor the father of accused today present in court, on asking his name came to know Mukesh. Accused Mukesh was working with his father in the said premises."
48. Thus, as per aforesaid portion of the testimony of the complainant/PW-1, who is the star witness of the prosecution, the contractor in respect of the construction in the house of the accused Sh. Sanjay was the father of the accused Sh. Mukesh and the accused Sh. Mukesh was merely working in the premises in question with his father, who has neither been made an accused in the present case nor has been cited or examined as a witness. There is no evidence, other than the aforesaid oral averment of the complainant, to show that the father of accused Sh. Mukesh was the contractor in respect of the construction in the house of accused Sh. Sanjay, much less to show that accused Sh. Mukesh had any role to play in the construction being State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 20 of 24so raised.
49. Besides the aforesaid extract from her testimony, the only other portion of the testimony of PW-1 where the name of the accused Sh. Mukesh finds mention is as under:
"...on the same evening I again went at the roof of my house at about 7.00PM and about 7.15PM the said wall constructed by the accused Mukesh on the direction of Sanjay Gupta fell down upon me, as result of that I sustained injury on my back and head."
50. It is in the aforesaid portion of the testimony of PW-1, that for the first and only time an allegation had surfaced against the accused Sh. Mukesh to the effect that he had constructed the wall in question on the direction of accused Sh. Sanjay. In this regard, it is neither the case of the prosecution that accused Sh. Mukesh was a labourer at the site, nor is it the version of PW-1 that accused Sh. Mukesh was the contractor. Merely because accused Sh. Mukesh is the son of the contractor, does not make him liable for the offence in question, more so since it is not even averred that he was present at the site on the relevant date and time. The complaint Ex. PW-1/A also does not mention the name of the accused Sh. Mukesh or even that construction was being raised by a contractor.
51. Moreover, in her cross-examination, PW-1 stated as under:
"I do not remember that there was any contract being done with thekedar. It is wrong to suggest that the accused Mukesh was the thekedar. Accused Mukesh being the thekedar did not construct the said wall of Mr. Sanjay Gupta's house."
52. Thus, the complainant herself exculpated the accused State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 21 of 24Sh. Mukesh from the alleged offence.
53. Further, there is not a single averment in the entire testimony of PW-2/sister of the complainant to even suggest that accused Sh. Mukesh had any role to play in the construction of the wall in question, let alone that he was in any manner guilty of commission of the offence in question.
54. Similarly, there is nothing in the testimony of PW-5, brother of the complainant, to suggest complicity of the accused Sh. Mukesh.
55. In view of the aforesaid, the prosecution has miserably failed to establish the complicity of accused Sh. Mukesh in the commission of the offence under Section 288 I.P.C.
56. In view of the aforesaid detailed discussion, the accused persons are, in the considered opinion of this Court, entitled to the benefit of doubt and to be acquitted of the offence punishable under Section 288 I.P.C.
II. Charge under Section 338 I.P.C.
57. For bringing home the charge under Section 338 I.P.C., the prosecution was required to prove that (1) grievous hurt had been caused to the injured/complainant, and (2) the same was caused by the accused by doing an act so rashly or negligently as to endanger human life, or the personal safety of others.
58. As already discussed above, the prosecution has failed to establish beyond reasonable doubt that the accused Sh. Mukesh had State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 22 of 24any role to play qua the construction of the wall in question or that the accused Sh. Sanjay had directed the labour to raise the alleged wall in a hasty manner or even that any such wall was in fact raised as alleged. Further, the prosecution has also not established beyond reasonable doubt that the accused persons did any act so rashly or negligently as to endanger human life, or the personal safety of others.
59. Further, in order to prove the injuries sustained by the complainant, the prosecution was required to prove the MLC Ex. PW-7/A beyond reasonable doubt. For the said purpose, the prosecution examined PW-7 Dr. Rachna Gupta, who stated that she had prepared the said MLC and identified her signatures on the same. However, she stated in her examination-in-chief itself, "Patient was admitted on 14.06.2009 at 10.20 PM and examined by Dr. B.N. Pati, Orthopaedic surgeon but at that time MLC of injured was not prepared as parties agreed to settlement. But later on, on 22.06.2009 at the request of the attendant of patient the MLC was prepared by me. However, I had not examined the patient on 22.06.09 before preparing the MLC". Further, in her cross-examination, PW-7 stated, "The patient was not admitted in the hospital in my presence. I had not treated the patient. I have no personal knowledge about the present case. No settlement was arrived at between the parties in my presence." Thus, the very contents of the MLC are questionable as neither the patient was admitted in the presence of PW-7 nor was she ever examined, let alone treated, by PW-7, who prepared the MLC. No reason as to why the MLC was not prepared by Dr. B.N. Pati, who is stated to have examined the complainant, has been shown. Further, while PW-7 State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 23 of 24stated that she had prepared the MLC on the basis of history recorded in the file by Dr. B.N. Pati, no such file has been produced on record.
60. Also, while the complainant was admitted in the hospital on 14.06.2009, the MLC was prepared only on 22.06.2009, i.e. after a delay of about eight days. The explanation furnished in this regard by PW-7 is that the parties had agreed to a settlement which had, as admitted by PW-7, not been arrived at in her presence. There is no mention of any such settlement in the testimony of any of the other prosecution witnesses.
61. In view of the aforesaid, the MLC Ex. PW-7/A is not reliable in the opinion of this Court.
62. Thus, the accused persons are entitled to be allowed the benefit of doubt and to be acquitted of the offence punishable under Section 338 I.P.C.
CONCLUSION
63. Accordingly, both the accused persons are acquitted of the offence punishable under Section 288 I.P.C. as well as Section 338 I.P.C.
64. File be consigned to record room.
Announced in open Court on 21.08.2012 (MANIKA) Metropolitan Magistrate-12 (South-West), Dwarka Courts, New Delhi 21.08.2012 State v. Sanjay & Ors.
FIR No. 138/2009 P.S.: Chhawla Page 24 of 24