Delhi District Court
State vs . : Gulshan Arora on 22 January, 2016
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, SAKET, NEW DELHI
FIR No. : 391/2004
U/s : 288/336 IPC
PS : K.M. Pur
State Vs. : Gulshan Arora
JUDGMENT
a The Sl. No. of the case : 93/1/14
b The date of commission : 24.08.2004
c The date of Institution of the case : 24.08.2006
d The name of complainant : Mahipal
e The name of accused Gulshan Kumar Arora S/o Sh. Asa
Nand, R/o 70 National Park,
Lajpat NagarIV, New Delhi.
f The offence complained of : 288/336 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 18.01.2016
i The final order : Acquitted.
j The date of judgment : 22.01.2016
BRIEF STATEMENT OF REASONS FOR DECISION:
1 The aforesaid accused has been sent for trial on the allegations that on
24.08.2004 at about 09:00 am ( hereinafter date and time of incident) at property No. 360, New Subhash Market Kotla Mubarakpur,( hereinafter spot of incident) within the jurisdiction of PS K.M. Pur, he being the builder ( alongwith one Pratap since not chargesheeted) of the aforesaid building knowingly or negligently omitted to take such order with that building as was sufficient to guard any probable danger to human life from the fall of that building or any part thereof and he thereby committed offence punishable u/s 288/336 IPC. After completion of investigation, IO has filed the chargesheet in the court on FIR No. 391/2004 1 of 7 24.08.2004.
2 Notice for commission of offences punishable u/s 288/336 IPC was framed upon the accused on 26.11.2011 to which he pleaded not guilty and claimed trial. 3 In support of its case prosecution examined 10 witnesses.
PW1 is Mahipal, who being the complainant/material witness has deposed that on 24.08.2004 he went to the roof of his house and saw crack at the bottom of wall of the building pertaining to his neighbour Gulshan Arora and one Pratap, constructed behind his house. In the meanwhile the said building collapsed upon his building and the building of his neighbouring house got damaged. It is further deposed by PW1 that at the time of incident his wife was also with him and after the incident they both jumped on the roof of his neighbour's building. Thereafter they came down and got vacated the premises as his family members and tenants were residing in his building. His building was two storeyed building and the collapsed building was 6 storeyed building. Thereafter police reached there, he went to police station and made a complaint Ex. PW1/A to this effect. He identified the accused in the court during recording of his statement. He has also stated that the material including saria used in the building by the accused was not proper. One pillar was in the sewer and the pillar was collapsed as there was no support except pillars of said building. Accused was getting repaired said building from top to bottom. It is further deposed by PW1 that on 09.06.2004 he had made a complaint against accused in the police station regarding damage of wall by pouring water negligently and another complaint on 14.06.2004 regarding constructing of wall in the night. Accused has constructed the building in negligent manner and illegally constructed one wall on his wall and even today sewerage water is oozing out in his premises. The witness has also correctly identified the 22 photographs pertaining to the collapsed building and the same FIR No. 391/2004 2 of 7 alongwith its negatives were exhibited as Ex. P1 to P23.
Pw2 is Raman Bhardwaj, who being the other independent witness has deposed that police neither recorded his statement nor interrogated him regarding this case. However he deposed that accused was constructing a building at plot No. 360 and 361 which was collapsed during construction which was again constructed on the said plot. There is no dispute between him and accused. The witness was thereafter cross examined by Ld. APP who in said examination has admitted that the due to collapse of building his house was also damaged and the same was got repaired by the accused.
PW3 is Jagat Singh, who being another independent witness has showed his ignorance about case in question. Thereafter the witness was cross examined by Ld. APP, wherein he also failed to support case of the prosecution.
PW4 is Smt. Triveni, who is also an independent witness who in her testimony has deposed that in the month of August, a building pertaining to Gulshan Arora during construction collapsed and derbies thereof fell down on his house due to which his building was also damaged. At the time of incident she alongwith her family members were inside the house. Thereafter, on being putting a leading question by Ld. APP has admitted that the incident took place on 24.08.2004, accused Gulshan Kumar was the builder of said building and said building was collapsed as the raw material which was being used in constructing the building was not of good quality.
PW5 is Arun Kumar, who being another eyewitness has deposed that on 24.08.2004 he has received a telephonic message that building i.e. 359, 360 and 361 which was being constructed by Gulshan Arora collapsed. He rushed to said place and found the his clinic which was also got damaged due to debris of the aforesaid collapsed building. Police reached there. He has also told to the FIR No. 391/2004 3 of 7 builder that he was not using good raw material for constructing the building and due to which it might be collapsed.
PW6 is HC Amit Kumar, who being deputed alongwith the IO has deposed about the investigation done by IO in the present case and exhibited the documents i.e seizure memo pertaining to cement and pieces of saria collected from the spot vide Ex. PW6/A and PW6/B. PW7 is HC Rampal, who being the photographer deputed in the Crime Team, South District has deposed about taking photographs of the spot and has exhibited 22 photographs vide Ex. P1 to P22 and their negatives vide Ex. P23(collectively).
PW8 is SI Neeru, who being deposed as Duty Officer has deposed about registration of FIR in the present case vide Ex. PW8/A. PW9 is Mahesh Ahuja, who being the another photographer has also deposed about clicking 22 photographs of the spot from different angles and has exhibited the same vide Ex. P1 to P22 and their negatives vide Ex. P23 (collectively).
PW10 is SI George Masih, who being the IO of the case has deposed about the investigation done by him in the present case and apart from the aforesaid documents he has also exhibited the documents like preparation of rukka and site plan vide Ex. PW10/A and Ex. PW10/B, arrest and personal search memo of accused vide Ex. PW10/C and PW10/D. Further the IO apart from the aforesaid photographs and negatives has also exhibited the case property i.e. iron saria and pieces of cement vide Ex. P24 and Ex. P25.
It is pertinent to note that the accused in his statement recorded u/s 294 Cr.P.C has admitted the genuineness of the CFSL report in the present case vide Ex. PA4.
FIR No. 391/2004 4 of 7 4 Statement of accused was recorded U/s 313 Cr.P.C., wherein he has denied
all the allegation made against him. He has also deposed that it is a false case registered against him. The accused has preferred to lead evidence in his defence but failed to examine any such witness in his defence.
5 I have heard Ld. APP for the State and Ld. defence counsels appearing on behalf of accused. I have also gone through case file very carefully. 6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
7 Ld. Defence Counsel appearing on behalf of accused, on the other hand has argued that the accused is being wrongly associated with the offence in question and as such the is entitled to acquittal in the present case. 8 I have perused the case file very carefully and have duly considered the respective arguments.
9 It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that 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, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
10 In my view the accused is entitled to acquittal for the following reasons.
The allegations in brief against the accused are that he committed FIR No. 391/2004 5 of 7 negligence while constructing the building at the spot of incident due to which the building collapsed and such collapse caused danger to human life. In this regard PW1, PW4 and PW5 all of whom are neighbours living in the close vicinity have deposed that due to the poor quality of material i.e. Saria, Cement etc. used by the accused, the building collapsed and due to said reason, not only their house were damaged but also such collapse caused danger to human life. The IO also took samples from the spot of incident and also got photographs Ex. P1 to P22 showing the fall of the building. The samples of iron Saria are Ex. P24 and that of pieces of Cement are Ex. P25. The CFSL report pertaining to the said sample is Ex. PA4 duly admitted by the accused u/s 294 Cr.P.C. As per the said report the steel bars of diameter 8 mm, 10 mm and 20 mm were exhibited as 2/1, 2/2 and 2/3 by the CFSL and the concrete sample weighing about 4 Kg. stated to be taken from the pillar and roof has been exhibited as Ex. 1 by CFSL. The result of examination of the concrete sample has been given and that of the steel has been given as per which steel bar Ex. 2/1 and 2/3 have been found by the CFSL as per IS specifications and Ex. 2/2 has not been found as per the specification.
However, neither the statement of the said witnesses that material used in the construction was of poor quality has been corroborated by all the witnesses as PW2 and PW3 who are also neighbours in the vicinity have turned hostile nor any expert has been examined regarding the meaning of the report of the concrete sample alleged to be taken from the pillar and roof nor any expert has been examined regarding the exact cause of the collapse of the building and also the IO is in contradiction to the observation in the CFSL that concrete sample has been taken from the pillar and roof. The IO in cross examination dated 18.01.2016 has contradicted this statement of CFSL that he picked up the samples from the pillar and the roof. IO has in fact stated that he picked up the samples FIR No. 391/2004 6 of 7 from the material lying on the earth and that he had not cut pieces from the erected structure. The CFSL does not base its finding on independent observation that the samples were taken from the pillar and roof but only states that such samples have been stated to be taken from pillar and roof. It appears that such statement has been made by CFSL in its report on the basis of the stand taken by the IO while referral of the material to CFSL. Also the IO should have called an expert at the crime scene to assess the probable cause of the fall of the building by securing crime team for observation of expert and his report. Nowhere during the whole prosecution case the fall of the building could be blamed on the accused and he cannot be held to be culpable in the fall of the building. 11 Hence, in view of the above discussion, the accused stands acquitted to the allegation leveled against him. His bail bond cancelled and his surety is also discharged. File be consigned to record room after due compliance of section 437 A Cr.P.C.
Announced in the open (Ashok Kumar)
Court on 22.01.2016 MM(South East)07,
Saket, New Delhi.
FIR No. 391/2004 7 of 7