Delhi District Court
State vs . Nitin Chakravarthy on 21 November, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. NITIN CHAKRAVARTHY
FIR No. 288/04
PS: MOTI NAGAR
U/S: 288/338/304-A IPC
JUDGMENT
Sr. no. of the case : 993/2/10
Case ID no. : 64677/16
Date of commission of offence : 26.05.2004
Date of institution of the case : 02.02.2005
Name of the complainant : Sh. Raj Kumar s/o Sh.
Satya Prakash.
Name of accused and address : Nitin Chakravarthy s/o Sh.
Tara Pandey Chakravarthy
r/o D-36A, Sudershan Park
Moti Nagar, New Delhi-
110015
Offence complained of or proved : U/s 288/338/304-A IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Reserved for judgment on : 08.11.2016
Date of judgment : 21.11.2016
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. Brief facts of the case are that accused Nitin Chakravarthy was FIR No. 288/04, PS Moti Nagar Page 1 of 9 constructing his house. On 26.05.2004, unfinished wall of his house fell down on the roof of his neighbour namely Raj Kumar due to which two persons sleeping on the roof of his neighbour's house got injured. One of them namely Sh. Anil died due to the injuries sustained by him and other one namely Shiv Pujan received grievous injuries. Accordingly, after conducting the investigation charge sheet was filed.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served upon the accused for trial of offence U/s 288/338/304-A IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses.
4. PW-1 Sh. Jai Prakash and PW2 Sh. Harshpal exhibited on record the dead body identification memo qua dead body of deceased Anil as Ex.PW1/A and Ex. PW2/A, dead body handing over memo as Ex.PW1/B and their statements recorded by the IO regarding identification and handing over of the dead body as Ex.PW1/C and Ex.
PW2/B.
5. PW3 Sh. Raj Kumar stated that he has constructed a room on the second floor of his house in the year 2004. It is stated that the said room was covered with cement sheets. It is stated that in May'2004 he had given that room on rent to Anil Kumar. It is stated that in the intervening night of 25-26.05.2004, Anil Kumar and Shiv Pujan went to the terrace for sleeping. At about 02:00-02:30 AM while he was sleeping he heard a loud noise, on which he went upstairs and saw that the back side wall of his neighbor's house had fallen on his cemented terrace, due to which Anil Kumar and Shiv Pujan had sustained injuries. It is stated that the house, the back wall of which had fallen on his roof belongs to accused Nitin Chakravathy bearing house no.37 or 36 A. It is FIR No. 288/04, PS Moti Nagar Page 2 of 9 stated that the cemented sheets of his room were also broken. It is stated that he took both the injured to ESI Hospital from where they were referred to Safdarjung Hospital. It is stated that Anil Kumar had expired in the morning whereas Shiv Pujan remained admitted in the hospital for about 20 days. It is stated that the wall had fallen due to the rain and storm and accused was not responsible for the same. It is stated that he made complaint to the police on 26.05.2004, which is Ex.PW3/A. It is stated that police arrested accused. In his cross- examination by Ld. APP for State it is stated by him that Ex.PW3/A was written by the police official. The police official had listened to him firstly thereafter prepared his statement. It is again clarified by him that he did not stated to the police that he asked the accused not to raise the wall or that accused did not pay heed to his requests or continued to construct the wall in illegal manner, he also denied that accused did not fill the pillars and constructed the wall by making unauthorised construction. It is stated by him that he had stated to the police that wind storm had taken place and responsible for fall of the wall. He denied the suggestion that accident had taken place due to negligence of the accused.
6. PW4 HC Rajbir Singh was the Duty Officer, who exhibited on record copy of FIR as Ex.PW4/A (OSR), endorsement on the rukka as Ex.PW4/B and DD no.32A regarding admission of injured in ESI Hospital as Ex.PW4/C.
7. PW Dr. P.K. Jain exhibited on record MLC of patient Shiv Pujan as Ex.PW4/A.
8. PW5 Dr. Rabi Shanker Singh gave opinion regarding the nature of injuries sustained by Shiv Pujan as grievous.
9. PW6 Dr. G.A. Sunil exhibited on record postmortem report no.774/04 of deceased Anil prepared by Dr. Deepak Mathur as Ex.PW6/A. He identified the signatures of Dr. Deepak Mathur at point A on Ex.PW6/A. FIR No. 288/04, PS Moti Nagar Page 3 of 9
10. PW7 Sh. Shiv Pujan stated that he is not mentally fit and some times he forgets the past incident, this is happening since the incident. It is stated by him that in that incident house of his neighbour i.e. accused had fallen on his house. This witness correctly identified the accused. It is stated by him that he was sleeping on the roof of his house at the time of incident. There was one other person namely Anil with him. It is stated by him that on the day of the incident he was sleeping with Anil in his room. It is stated by him that he does not remember by which things the roof was made of. It is stated by him that due to fall of the building he received injuries and Anil died. He could not tell who took him to the hospital. He could not tell how the adjacent building had fallen. In his cross-examination by Ld. APP it is accepted by him that he was living on ground floor and Anil was living on second floor and he was sleeping with Anil in his room. He accepted that wall of the nearby house had fallen on the roof of his house which was cemented which had fallen on him. It is stated by him that his landlord was Raju. It is accepted by him that wall of the house of the accused had fallen down as the pillars were not properly filled while making of wall. In his cross examination by accused, it is stated by him that he had seen the wall while it was under
construction however, he does not remember whose wall it was. He could not tell if any pillar was filled properly in that wall or not. It is stated by him that accused used to run a factory in the adjoining house. It is stated by him that his brother Lal Chand had apprised him that accused Nitin Chakravarthy was the one who was constructing the wall.
11. PW8 Ct. Ashok Kumar exhibited on record the personal search memo of accused as Ex.PW8/A and arrest memo as Ex.PW8/B.
12. PW10 Ct. Pramod took the photographs of the spot and he exhibited the negatives of the said photographs as Ex.P1.
13. PW11 SI Suresh Chand stated that on 24.05.2004 he was posted at PS Moti Nagar as ASI. On that day, on receipt of DD no. 32A regarding accident he along with Ct. Dharmender reached at ESI hospital, where he collected MLC of injured Shiv Pujan and injured/deceased Anil FIR No. 288/04, PS Moti Nagar Page 4 of 9 Kumar. The MLC of injured Shiv Poojan is Ex.PW4/A. After receipt of MLC of both the injured persons it transpired in the hospital that both the injured persons had been shifted to Safdurjung Hospital. It is stated that thereafter he went to Safdurjung Hospital. It is stated that on reaching there an application for recording the statement of both the injured persons were moved, to which doctors stated on MLC that both the injured were unfit for statement. It is stated that in the hospital complainant/owner of the house met them and his statement was recorded, which is Ex.PW3/A. It is stated that on the statement of Raj Kumar rukka was prepared and the same was handed over to Ct. Dharmender for the registration of FIR. It is stated that from the hospital he went to the spot. After registration of FIR Ct. Dharmender returned at the spot and handed over original rukka and copy of FIR to him. Thereafter, crime team was called for the inspection as well as photography of the spot. On reaching at the spot photographs of the spot were captured by the officials of crime team. It is stated that in the meantime he got information that injured Anil had expired in the hospital and on that he went to the SGM Hospital. On the same day, the postmortem of the injured/deceased Anil was conducted in SGM Hospital and after his postmortem dead body was handed over to his relative namely Jai Prakash vide handing over memo Ex. PW1/B. It is stated that thereafter he recorded the statement of witnesses. On 31.05.2004, accused was arrested vide arrest memo Ex. PW8/B and personal search of accused was conducted vide memo Ex. PW8/A. On production of surety accused was released on bail. It is stated that after collecting all the medical reports of injured/deceased he filed the charge sheet in the Court. In his cross examination, he could not tell whether in the night of alleged incident there was a big storm or not, however, it is stated by him that one resident of the locality apprised him that due to a big storm the alleged wall had fallen down. It is accepted by him that he has not placed on record positives of the photographs of the spot. It is accepted by him that he had not collected any material from the spot for lab testing. He could not tell if he had placed on record any proof of FIR No. 288/04, PS Moti Nagar Page 5 of 9 ownership regarding the house wherein wall was under construction.
14. PW-9 Ct. Dharmender deposed on the same lines as that of PW-11 SI Suresh Chand.
THE DEFENCE :
15. Statement of accused U/s 281 r/w 313 Cr.P.C was recorded. In the statement of accused it was stated by him that he has been falsely implicated in this case as he is not the owner of the house for which the case has been registered against him. It is stated that the wall had fallen down due to the rain and storm. It is stated that he is not responsible for the same. Accused opted not to lead any defence evidence.
THE ARGUMENTS:
16. Ld. APP for state has argued that the witnesses have supported the prosecution and their testimonies remained unrebutted. That on a combined reading of prosecution witnesses testimonies, offence U/s 288/338/304 A IPC are proved beyond doubt.
17. On the other hand, Ld. Counsel for the accused had argued that prosecution has failed to prove that accused was the owner and has undertaken the construction of the wall which had fallen down. It is further argued that from the evidence of prosecution witnesses itself it is apparent that the wall had fallen down due to a huge storm and there was no negligence on the part of any person in falling down of the wall.
THE FINDINGS:
Offence U/s 288/338/304-A IPC:
18. Arguments adduced by Ld. APP and Ld. Defence Counsel have been heard. Evidence and documents on record are also carefully perused.
19. The prosecution in this case had to prove the following :
i. Firstly, that accused Nitin Chakravarthy was the owner of the house wherein construction work was going on and he has FIR No. 288/04, PS Moti Nagar Page 6 of 9 undertaken that construction work being owner of that house.
ii. Secondly, that the accused knowingly or negligently omitted to take such order with aforesaid building while constructing the wall as is sufficient to guard against any probable danger to human life and;
iii. Thirdly, the accident has taken place due to rash and negligent act of the accused resulting into death of the victim Sh. Anil and grievous injuries to Sh. Shiv Pujan.
20. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
21. The testimonies of alleged eye witnesses are evaluated as under:
a) PW-3 Sh. Raj Kumar has himself stated in his examination in chief that the wall had fallen down due to the rain and storm and there was no mistake of its owner. It is again stated by him in his cross examination on behalf of state that he has apprised the police that wall has fallen down due to the wind storm. It is also stated by him that he never asked the accused not to raise the wall. IO PW11 SI Suresh Chand has also stated in his cross examination that a resident of the locality apprised him that the wall has fallen down due to a huge storm. Thus, testimonies of these witness are of no help to the prosecution rather, the same are showing that there was no fault or negligence on the part of FIR No. 288/04, PS Moti Nagar Page 7 of 9 the accused.
b) PW7 Sh. Shiv Pujan had stated in his examination in chief and cross by Ld. APP for the state that wall of the house of the accused had fallen down on them as the pillars were not properly filled. However, in his cross examination on behalf of accused it is stated by this witness that he does not remember if any pillar were properly filled or not. He could not even tell who was the owner of the house wherein construction was going on. It is stated by him that his brother Lal Chand had apprised him that accused Nitin Chakravarthy was the one who was constructing the wall. From the testimony of this witness it is apparent that he is not a reliable witness as he is taking shifting stands. The testimony of this witness is not a reliable piece of evidence and the same cannot form the basis to convict the accused. As even from his testimony it cannot be confirmed if accused Nitin Chakravathy was the one responsible for constructing the wall. Further, even negligence or rashness on the part of the accused could not be proved from the testimony of this witness.
22. From the analysis of the testimonies of the public witnesses it cannot be held that the accident had taken place due to rashness and negligence on the part of the accused. It is apparent from the testimony of PW3 Sh. Raj Kumar as well as PW11 SI Suresh Chand that there occurred a huge storm in the night due to which the wall had fallen down. IO did not get the site of incident inspected by any government Engineer to clarify if there was any fault in construction of the wall. It is to be noted that rashness and negligence on the part of the accused is a sine-qua-non for commission of offence u/s 288/338/304A IPC. Further more, no witness has been examined from MCD or any other government department to prove that accused Nitin Chakravarthy was the owner and responsible for raising the wall which had fallen down on the victim.
FIR No. 288/04, PS Moti Nagar Page 8 of 923. Thus, in the considered view of this Court, the prosecution could not prove beyond reasonable doubt that the accused has knowingly or negligently omitted to take such order with the building while constructing it as is sufficient to guard against any probable danger, further the prosecution has also failed to prove that the accused was acting negligently or rashly while carrying on the construction. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused namely Nitin Chakravarthy s/o Sh. Tara Pandey Chakravarthy is hereby acquitted of all the charges in the present case.
24. Fresh bail/surety bonds have been furnished by the accused in compliance of section 437-A Cr.P.C. Same is accepted.
25. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 21.11.2016 MM-04 (WEST)/DELHI
Containing 9 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 288/04, PS Moti Nagar Page 9 of 9