Delhi District Court
State vs 1. Bijender Singh on 27 February, 2015
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT& SESSIONS JUDGE (EAST)
KARKARDOOMA COURTS, DELHI
SC No.10/13
Unique Case ID No.02402R0091302013
FIR No. 394/12
PS New Ashok Nagar
U/s 288/336/338/304/34 IPC
State Versus 1. Bijender Singh
S/o Sh. Gyan Chand
R/o H. NO.18, East Azad Nagar,
Krishna Nagar, Delhi96.
Permanent Address:
Village Dallupura, Delhi96.
2. Bhanwar Singh
S/o Lt. Sh. Dharam Singh
R/o Usha Ka Makan,
New Defence Colony Near
Santoshi Dharam Kanta, Bhopura,
Sahibabad, Ghaziabad, UP.
Permanent Address:
Village Bada Gaon, PS Falawada
District Meerut, UP.
SC NO. 10/13 State Vs. Bijender Singh etc. Page 1 of 18
Date of Institution : 03.04.2013
Date of order reserved : 12.02.2015
Date of order : 27.02.2015
JUDGMENT
In brief, the case of prosecution is that on 12.12.12 on receipt of intimation, police officials reached at the spot at Bijender Ka Makan, Village Dallu Pura, Delhi and came to know that injured have been taken to LBS Hospital. Statement of complainant Sunita was recorded, who stated that she alongwith her family was residing in a room owned by Bijender. Owner of the plot was getting the boundary wall of the plot constructed which was quite high without any supporting pillar and this work was executed by Contractors Bhanwar Singh and Sunil. About one week ago, there was a crack in the wall as the required quantity of cement was not used. All the tenants including the complainant had informed the Owner and the Contractor that the boundary wall might fall any time and people may loose their lives but they did not listen. In the morning at about 9.00/10.00 am, one JCB machine was filling the earth in the said plot and few children of the tenants were playing alongside the boundary wall which was about 2025 high, without any SC NO. 10/13 State Vs. Bijender Singh etc. Page 2 of 18 supporting pillar and when the filling of earth was being done, on the other side, the wall fell down and many children came under the debris. Owner of the plot and Contractor alongwith labour and JCB machine ran away from the spot. Rescue efforts were made and it was found that few children have died and others were still alive who were taken to Hospital in police vehicles. After recording the statement, IO reached in the Hospital. He collected the MLCs of 5 dead and 1 injured child but the names and parentage of children were not shown in the said MLCs. After investigation in the Hospital itself, names of dead children came to the knowledge of IO as Aditya, Baby, Amit, Kanchan and Ankit and of injured as Saraswati. FIR was registered u/s 304/288/336/338/34 IPC. Investigation was carried out. Nothing was found against Sunil who was initially named in the complaint. So, charge sheet was filed against accused Bijender Singh and Bhanwar Singh.
2. Charges were framed against the accused persons on 04.05.13 U/s 288/336/338/304/34 IPC to which they pleaded not guilty and claimed trial.
3. Prosecution examined 32 witnesses, after which, the entire evidence against the accused persons was put to them in the SC NO. 10/13 State Vs. Bijender Singh etc. Page 3 of 18 form of statement of accused on 23.08.2014. No witness was examined in defence.
4. I have heard the final arguments and gone through the Court record.
5. PW1 is the complainant Sunita who has turned hostile and has stated that she neither knew the name of her landlord nor is able to identify him. However, she stated that wall of the house fell down on 12.12.12 at about 9.30 am and she had also sustained injuries on her leg. Some other children also sustained injuries who were residing in the same premises. The reason for falling of the wall was that there was heavy rain in the previous night. This witness was cross examined by the Ld. Addl. PP with the permission of the Court, where she denied that she had made the statements to the police Ex.PW1/B or Ex.PW1/C. In cross examination by the Counsel for accused Bijender, she stated that she cannot read or write Hindi and English languages and she did not know the contents of her statements Ex.PW1/A, Ex.PW1/B and Ex.PW1C. She admitted that accused persons were shown to her by the IO outside the Court. In cross examination by the Counsel for accused Bhanwar Singh, she stated that IO had shown accused Bhanwar Singh to her today and she SC NO. 10/13 State Vs. Bijender Singh etc. Page 4 of 18 had never seen accused Bhanwar Singh before that day.
6. PW2 is Sh. Lok Nath who states that he did not know anything about the case and he did not know any of the accused persons as he had not seen them earlier. In cross examination, he denied his statement U/s 161 Cr.PC Ex.PW2/A. He further denied that accused Bijender Singh was his landlord.
7. PW3 is Sh. Sadan Haldar who also states that he did not know anything about the case. He denied making statement Ex.PW3/A to the police at any point of time. As per him, he was tenant of one Ram Pal Bhati and not of accused Bijender Singh.
8. PW5 is Sh. Tuntun Singh who states that in the last month of 2012, there was heavy rain in the previous night and wall raised near his house had fallen down in the morning and his son Azad Kumar, aged 2 years had died. His daughter Saraswati, aged 5 years also sustained injury due to fall of wall, who was treated in the Hospital. He had received the dead body of his son vide Identification Memo Ex.PW5/A. Police made enquiries from him and recorded his statement Ex.PW5/B but he did not know any of the accused namely Bijender Singh and Bhanwar Singh, present in the Court. In cross examination by the Ld. Addl. PP, PW5 stated that he could not say if SC NO. 10/13 State Vs. Bijender Singh etc. Page 5 of 18 the name of owner of the building was Bijender and name of the contractor, who constructed the wall, was Bhanwar Singh, but it was recorded so in his statement Ex.PW5/B. He denied making statement to the police that accused Bijender had given contract for construction of the wall to accused Bhanwar Singh and the construction was carried out without raising any pillar or beam and by using material of inferior quality. He also denied further contents of his statement or blaming accused Bijender and Bhanwar Singh for the death of his son and for causing injuries to her daughter. He received the dead body of his son vide receipt Ex.PW5/C. He denied the suggestion that he came to the Court with accused Bijender and he was influenced or won over by the accused persons.
9. PW6 is Sh. Satish. He states that in the last month of 2012, there was heavy rain in the previous night and a wall raised near his house had fell down in the morning and in the said incident, his son Ankit, aged 5 years and daughter Baby, aged 3 years had died. He came to know about the incident when he came back from his work. He reached in the Hospital where he found that his son Ankit and daughter Baby had died due to fall of a wall. His statements regarding the identification of dead bodies were recorded as SC NO. 10/13 State Vs. Bijender Singh etc. Page 6 of 18 Ex.PW6/A and Ex.PW6/B. He received the dead bodies of his children vide receipts Ex.PW6/C and Ex.PW6/D. Police recorded his statement Ex.PW6/E but he did not know any of the accused or anything else about the case. In cross examination by Ld. Addl. PP, he stated that he could not say if the name of owner of the building was Bijender and name of the contractor, who was constructing the wall, was Bhanwar Singh. He denied that the boundary wall was being constructed over the big plot where his house was situated and he was living with other tenants and their children. He denied having made any statement to the police implicating the present accused persons. He further denied that he was influenced or won over by the accused persons.
10. PW7 is Sh. Manoj Kumar, who states that his daughter Kanchan had died due to fall of a wall in the tenanted premises in the last month of 2012. There was heavy rain in the previous night and the wall raised there fell down in the morning causing death of his daughter. He came to know about the incident later on after coming back from his work of rag picking and he reached LBS Hospital. His statement regarding the identification of dead body of his daughter is Ex.PW7/A and he received the dead body vide receipt Ex.PW7/B. SC NO. 10/13 State Vs. Bijender Singh etc. Page 7 of 18 Police recorded his statement Ex.PW7/C. He did not know accused Bijender and Bhanwar Singh. In cross examination, he had denied the contents of the statement made to the police Ex.PW7/C. He further denied that he was won over by the accused persons.
11. PW8 is Sh. Subhash who states that he lived in the house of one Azad since beginning. He was not present at the time of incident. He did not know any of the accused and nothing happened in his presence. This witness was cross examined by Ld. APP. He states that he did not know if Azad is the son of accused Bijender. He had not seen accused Bijender at the premises. He denied contents of his statement to the police Ex.PW8/A with which he was confronted. He denied having witnessed the incident or he being won over by the accused persons.
12. PW9 is Sh. Subhash who also states that the he did not know anything about this case. This witness was confronted by the Ld. Addl. PP with his statement U/s 161 Cr.PC Ex.PW9/A. He denied the suggestion that he was won over or influenced by the accused persons.
13. PW10 is Sh. Parashanjeet. He has also not supported the stand of prosecution in his examinationinchief as SC NO. 10/13 State Vs. Bijender Singh etc. Page 8 of 18 well as in crossexamination by Ld. Addl. PP, although he was confronted with his statement U/s 161 Cr.PC Ex.PW10/A.
14. PW11 is Ram Kumar, who also stated that he did not know anything about this case. He denied his statement to police Ex.PW11/A.
15. PW12 is Sh. Mool Chand, who states that he did not know either of the accused persons and police had not recorded his statement. He was confronted by the Ld. Addl. PP with his statement U/s 161 Cr.PC Ex.PW12/A but he denied the contents of the same.
16. PW13 Abdul Hamid who is a rickshaw puller. He states that he did not know anything about this case. This witness was also confronted with his statement U/s 161 Cr.PC Ex.PW13/A (wrongly mentioned as PW12/A in the evidence). He has denied the contents of said statement.
17. PW14 is Sh. Sunil Kumar, who states that his wife Kalpana Singhal had entered into a rent agreement with one Bijender Singh for taking a plot for running the business of soft drinks. Copy of the agreement is Ex.PW14/A. He states that he could not identify accused Bijender as he had not ever met him. This witness was cross SC NO. 10/13 State Vs. Bijender Singh etc. Page 9 of 18 examined by Ld. Addl. PP in which he states that police had asked about the rent agreement and his statement was recorded. He denied the contents of said statement Ex.PW14/A and has also denied that he was won over by the accused persons.
18. PW15 is Smt. Kalpna Singhal W/o Sh. Sunil Kumar, who states that her husband was running a depot of soft drinks under the name and style of M/s S. K. Drinks and she did not know anything more. She denied the suggestion of Ld. Addl. PP in her cross examination that she had entered into an agreement for taking a plot consisting of 6 rooms on rent at a monthly rate of Rs. 1,11,000/ or she had paid Rs.3,50,000/ as an advance or accused Bijender had assured to construct the rooms and tin shed over his plot at his own risk and cost. She stated that she was not won over by the accused persons.
19. PW4 is HC Satyevir, who was the Duty Officer on 12.12.12 from 8.00 am to 4.00 pm. On receipt of rukka, he registered case FIR No.394/12 U/s 304/288/336/338/34 IPC and handed over the investigation to SI Mohd. Rizwan. His endorsement on the rukka is Ex.PW4/A and copy of the FIR is Ex.PW4/B.
20. PW16 is Sh. Pramod Kumar Tomar, Executive SC NO. 10/13 State Vs. Bijender Singh etc. Page 10 of 18 Engineer, PWD. He stated that as per specifications of CPWD, minimum strength of cement mortar for brick masonry is 1 part cement and 6 part sand for normal building and if the requirement is of more load bearing, where more strength is required, richer mortar is required i.e. 1 part cement X 4 part sand or 1 part cement X 3 part sand but it cannot be leaner than 1 part cement X 6 part sand in government construction. In cross examination by the Counsel for accused Bhanwar Singh, this witness states that he had not inspected the site or spot of the present case.
21. PW17 is SI Narender Singh. On the day of incident, he was posted as Probational Sub Inspector on emergency duty from 8.00 am to 8.00 pm at PS New Ashok Nagar. He was entrusted with a call at 9.52 am regarding collapse of a wall behind Dharamsheela Hospital vide DD no.21A. He reached at the spot where he came to know that some construction was going on in a plot which belong to one Bijender. He saw that one wall had collapsed and came to know that injured children had been removed to LBS Hospital. Statement of complainant Sunita was recorded in his presence by SI Mohd. Rizwan. He reached the Hospital and collected 6 MLCs and handed over the same to SI Mohd. Rizwan. On 5 MLCs, SC NO. 10/13 State Vs. Bijender Singh etc. Page 11 of 18 the children were declared as "brought dead" and one girl Saraswati was under treatment. He was with IO during the investigation. He identified the bricks and mortar as Ex.P1. In cross examination by the Counsel for Bhanwar Singh, this witness states that he found JCB machine in the plot where incident took place. He did not see any fresh mixture of cement and sand for the purpose of construction. He could not say if any labourer was present amongst the public persons at the spot. He admits that in the case property, two bricks were fixed with each other with the mixture of cement and sand. In cross examination by the Counsel for accused Bijender, he states that number of the property and name of the owner has not been shown in the photographs Ex.PW17/A1 to Ex.PW17/A4.
22. PW18 is Sh. Ajay Kumar who was the Incharge of CATS Ambulance. On receipt of wireless message, he reached at the spot. He took an injured girl, aged 3 years, to Hospital.
23. PW19 is HC Sandeep who had joined the investigation with the IO SI Rizwan on 13.12.12. In his presence, accused Bijender was interrogated and his disclosure statement Ex.PW19/A was recorded and thereafter, accused was arrested and his personal search was taken vide memos Ex.PW19/B and SC NO. 10/13 State Vs. Bijender Singh etc. Page 12 of 18 Ex.PW19/C.
24. PW20 is HC Kiran Pal who was on PCR duty on the day of incident and on receipt of wireless message, he reached the spot and took out 3 children from the debris of the wall with the help of public and had taken them to LBS Hospital.
25. PW21 is HC Harbir. He was also on PCR duty in another PCR Van and had reached the spot.
26. PW22 is Ct. Daya Ram who was posted in PS New Ashok Nagar and had reached at the spot at about 10.00 am on receipt of the message and came to know that a wall had collapsed and injured children had been taken to LBS Hospital. Police officials reached in his presence and statement of complainant was recorded. He was left at the spot when police officials moved to LBS Hospital. He had taken the Rukka to Police Station, got the FIR recorded, returned back and handed over the original Rukka and copy of FIR to the IO. Certain exhibits were seized in his presence. He identified the bricks with mixture of cement as already exhibited as Ex.P1.
27. PW23 is Insp. Sanjeev Kumar who had reached at the spot with his staff and found SI Rizwan and other police officials present there. SI Rizwan had conducted the investigation in his SC NO. 10/13 State Vs. Bijender Singh etc. Page 13 of 18 presence. He gave necessary directions to SI Rizwan in this regard.
28. PW24 is HC Iqbal Hussain who was also on PCR duty in another PCR Van. He had also taken one injured child to LBS Hospital and got him admitted there.
29. PW25 is HC Suraj Mal. He was posted as MHC(M) in PS New Ashok Nagar where SI Rizwan had deposited three Pulandas. He exhibited the the entry as Ex.PW25/A. He sent the exhibits to FSL, Rohini through Ct. Munesh.
30. PW26 is Ct. Munesh who had taken the exhibits to FSL, Rohini and deposited the same there.
31. PW27 is Dr. B. N. Acharya, who was the Medical Officer in LBS Hospital. He had conducted the post mortem on the dead bodies of 5 children. Post mortem reports are Ex.PW27/A to Ex.PW27/E. He had received the inquest papers from the IO before conducting the post mortem.
32. PW28 is Sh. S.S. Badwal, Senior Scientific Officer (Physics), FSL, Rohini. He had visited the spot on the direction of his higher officer. Scene of crime was inspected by him and he submitted the Crime Scene Report mentioning therein that the lengthy brick wall could have collapsed due to insufficient mortar material used in SC NO. 10/13 State Vs. Bijender Singh etc. Page 14 of 18 the construction and without proper support of pillars. His report is Ex.PW28/A. He examined the exhibits sent to him, containing mortar material and bricks and had submitted his report Ex.PW28/B.
33. PW29 is Sh. Inderjeet, Patwari. He had brought the revenue record of Khasra No.325 of Village Dallupura. The size of said Khasra is about 2 bighas 5 biswa which was earlier belonging to one Beghraj S/o Chandan and Khillu, Pyare, both sons of Umrao. Said land was acquired by the Government on 09.03.1983 but possession was not taken over. He filed relevant Khasra Girdawaris on record as Ex.PW29/A.
34. PW30 is Dr. B. D. Singh. He had examined and treated an unknown injured girl, aged 3 years vide MLC Ex.PW30/A. He had also examined 5 other children and declared them dead vide MLCs Ex.PW30/B to Ex.PW30/F.
35. PW31 is Sh. David Kumr, who was the photographer and as per directions of SI Rizwan, he had taken photographs of the spot Ex.PW17/A1 to Ex.PW17/A4. He had taken 5 photographs of the dead bodies of the children after their post mortem, which are Ex.PW31/A1 to Ex.PW31/A5. CD containing the original photographs is Ex.PW31/A. SC NO. 10/13 State Vs. Bijender Singh etc. Page 15 of 18
36. PW32 is the Investigation Officer SI Mohd.
Rizwan who has narrated the entire incident. He had recorded the statement of complainant and his endorsement is Ex.PW32/A. He prepared the site plan Ex.PW32/B. IO prepared the the inquest papers Ex.PW32/C1 to Ex.PW32/C5 for getting the post mortem done on the dead bodies of children. He seized the exhibits from the spot. He arrested accused Bhanwar Singh and conducted his personal search vide memos Ex.PW32/D and Ex.PWE32/E. Disclosure statement of accused Bhanwar Singh is Ex.PW32/F. He seized the rent agreement and Khasra Girdawaris vide seizure memo Ex.PW32/G. Thereafter, he concluded the investigation and filed the challan. In cross examination, IO admits that he had not verified the owner and driver of the JCB machine as mentioned in the FIR. He could not trace them. He admits that name of the accused Bijender is not shown in the Khasra Girdawari and Khatoni. He further admits that no agreement between accused Bijender and accused Bhanwar Singh came to his notice during the investigation. He denied the suggestion that he was told by the complainant that there were two contractors namely Bhanwar Singh and Sunil. He admits that identification of accused Bhanwar Singh was not got done from any witness. He did not find SC NO. 10/13 State Vs. Bijender Singh etc. Page 16 of 18 any JCB machine at the spot when he reached there but during investigation, he came to know that work was being done with JCB machine also.
37. After going through the statements of witnesses and exhibits on record, it is clear that there is nothing on record which connects both the accused persons with the incident. Prosecution has failed to bring on record anything to show that accused Bijender was the owner of the property in question where the alleged construction of wall was going on or accused Bhanwar Singh was the contractor who was constructing the said wall at the relevant time. All the public witnesses, including complainant Sunita (PW1), have denied their knowledge about association of accused persons with the plot in question and construction being carried out there. Even parents of the children, who had died in the incident, have also denied knowing the accused persons, although they admitted the fact regarding death of their respective children in the unfortunate incident.
38. Under these circumstances where all the public witnesses have turned hostile and even during their cross examination by Ld. Addl. PP and after confronting them with their statements U/s 161 Cr.PC, nothing positive has come on record to connect the SC NO. 10/13 State Vs. Bijender Singh etc. Page 17 of 18 accused persons with the alleged incident, it is not possible for prosecution to prove its case. All the formal/government witnesses have deposed about the incident, which even otherwise, is not disputed by the public witnesses. Moreover, the evidence of formal witnesses including the Patwari could not connect the accused persons with the incident. Investigation Officer did not investigate the aspect of JCB Operator being involved in the incident which resulted in collapse of wall, killing of 5 children and injuring few others.
39. Under these circumstances, I have no other option but to acquit both the accused persons. Both the accused persons Bijender Singh and Bhanwar Singh are hereby acquitted from the charges U/s 288/336/338/304/34 IPC.
Announced in the open Court ( TALWANT SINGH )
Dated: 27.02.2015 District & Sessions Judge (East)
Karkardooma Courts : Delhi
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