Delhi District Court
State vs . Mohd. Ayyub on 7 December, 2019
IN THE COURT OF MS. RAJAT GOYAL, METROPOLITAN
MAGISTRATE08, SOUTH EAST DISTRICT, SAKET COURTS,
SAKET, NEW DELHI
State Vs. Mohd. Ayyub
FIR No : 78/2010
P. S. : Jamia Nagar
U/s : 288/337/304 A IPC
A Sl. No. of the case : 85862/2016
B Date of commission : 14.03.2010
C Date of institution of the case : 13.03.2013
D Name of complainant : SI Ram Manohar
E Name of accused persons and : Mohd. Ayyub, S/o Mohd. Yakoob,
R/o House no. 71, Gafoor Nagar,
their parentage.
New Delhi.
F Offence complained of : 288/337/304 A IPC.
G Plea of accused : Not guilty
H Orders reserved on : 27.11.2019
I Final order : Accused is acquitted for offence
punishable u/s 288/337/304 A IPC.
J Date of judgment : 07.12.2019
JUDGMENT:
1. Briefly stated, case of the prosecution is that on 14.03.2010, at about 1.15 pm, near gali infront of house no. B 155/2, Shaheen Bagh, New Delhi, within the jurisdiction of PS Jamia Nagar, accused failed to take such order as was sufficient to guard against probable danger to FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 1 of Page 10 human life during construction of property bearing no. C41, Shaheen Bagh, Jamia Nagar, New Delhi, resulting in fall of one labour Raghunath Patra from upper story of the said property and that one passerby Abdul Wahab was crushed under Raghunath Pathra, leading to simple injuries on the person of Raghunath Patra and death of Abdul Wahab. On the basis of information received by the police, present FIR was registered. After registration of FIR, investigation was conducted and after completion of the investigation, IO filed the chargesheet for offences punishable u/s 288/337/304 A IPC.
2. Cognizance was taken in the present matter vide order dated 13.03.2013 and accused was summoned. After compliance of provisions of section 207 Cr.P.C., matter was fixed for consideration on charge. On the basis of material on record, charge u/s 288/337/304 A IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution has examined 5 witnesses. PW1 was one Abdul Majid, son of deceased Abdul Wahab, who stated that on 14.03.2010, he was informed that his father had been injured due to fall of one labour and that he went to the spot and his father was taken to the hospital, where he was declared brought dead. He also stated that he identified body of his father vide statement Ex.PW 1/A and that the said body was handed over to him vide memo Ex.PW 1/B. He also stated that he later on came to know that accused was responsible for getting construction of the building in question. PW2 was one Rizwanul Hassan, who stated that one collaboration agreement was executed between him and owner of property in question in the year FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 2 of Page 10 2009 and that he had made a further contract with M/s Insa Electrical, Raj Kumar and Naeem and documents Ex.PW 2/A, Ex.PW 2/B and Ex.PW 2/C were executed in this regard. PW3 was Raghunath Patra, who stated that while doing labour work, his leg slipped and he fell down and lost consciousness. He further stated that he does not know as to who was the concerned contractor and does not even remember the exact date of the incident. He was cross examined by Ld. APP for the State on the ground that he was resiling from his earlier statement. PW4 was Inspector Ram Manohar, who stated that he reached the spot on receipt of DD no. 17 A on 14.03.2010 and found two injured persons at the spot, who were both sent to the hospital. He also stated that he took photographs of the spot and identified the said photographs as Ex.P1 (Colly) and further stated that he then went to AIIMS Trauma Centre, where he came to know that injured Abdul was declared 'brought dead'. He also proved Tehrrir Ex.PW 4/A and stated that during inquiry it was revealed that accused was the contractor of the said house. He also proved site plan Ex.PW 4/D, arrest memo Ex.A5 and seizure memo Ex.PW 4/E and correctly identified the accused in the court. PW5 was ASI Ved Prakash, who stated that he reached the spot on 14.03.2010 along with SI Ram Manohar and found that two persons had been injured, who were taken to AIIMS Trauma Centre. He also correctly identified photographs of the spot and stated that during inquiry, it was revealed that contractor of the building in question was accused Mohd. Ayyub.
4. Thereafter, statement of accused under section 313 Cr.P.C. was recorded, wherein he stated that he had been falsely implicated in the present case and that he has no concern with the property in question FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 3 of Page 10 and that he was neither its owner nor contractor or developer. Matter was thereafter fixed for defence evidence. Accused did not lead any evidence in his defence and opportunity of the accused to lead defence evidence was closed vide order dated 27.11.2019 and final arguments were heard.
5. Ld. APP for the State has argued that case of the prosecution stands fully established and testimony of various prosecution witnesses establishes that incident in question occurred due to rashness and negligence of the accused and that he failed to exercise due caution while constructing the property in question. On the other hand, it has been argued by Ld. Counsel for the accused that prosecution has not been able to prove its case beyond reasonable doubt that benefit of doubt must be given to the accused. I have heard the arguments and perused the record.
6. Accused has been charged under sections 288/337/304 A IPC on the allegation that he was the contractor of construction work being carried out in property bearing no. C41, Shaheen Bagh, Jamia Nagar, New Delhi and that due to his negligence, one labour Raghunath Patra fell down from the said building during construction and crushed one passerby Abdul Wahab, who succumbed to his injuries. In order to prove the said charges against the accused, prosecution was required to prove that accused was responsible for carrying out the construction activity that was being conducted in the property in question. I shall first discuss charge under section 288 IPC. Under the said section, liability is fastened upon a person who fails to take order and care to guard against probable danger to human life from fall of a building or any part thereof. It is also FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 4 of Page 10 an essential ingredient of section 288 IPC that such caution and safeguard must be taken during pulling down or repairing of a building and that such safeguard must be against danger from fall of the said building or its part. In the instant case, it is not the case of prosecution that any part of the building in question had fallen during its repair and that accident in question occurred due to such fall of the building or its part. It is the case of prosecution that incident in question occurred when one of the labour (Raghunath Patra) had fallen from the building in question. The said incident whereunder one of the persons working on construction of the building in question slipped and fell from building in question does not come within the ambit of 'fall of that building, or of any part thereof', as provided under section 288 IPC. Culpability under Section 288 IPC can be fastened only if caution is not exercised to avoid fall of a building or its part during its repair. Fall of a labour engaged in repair of a building, and one passerby being crushed under such labour, and such labour himself suffering injuries during such fall is no doubt a very unfortunate sequence of events. However, in the instant case, there is nothing on record to show that such labour fell due to negligence of any person associated with repair work being conducted in the building in question or due to lack of adequate safeguards. Even otherwise, it is not the case of prosecution that any part of the building in question had also fallen along with the labour. Thus, incident in question is most definitely not covered under section 288 IPC as neither the entire building in question, nor any part thereof fell during the incident. Person or labour working in a building cannot be equated to 'part of a building'. Thus, charge under section 288 IPC cannot be sustained against the accused.
FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 5 of Page 10
7. I shall now discuss charge under section 337 IPC and 304A IPC. Insofar as Section 304A IPC is concerned, it deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of Section 304A IPC is limited to rash or negligent acts which cause death, but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304A IPC is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A IPC are :
(a) death of a human being;
(b) fact that accused caused the said death; and
(c) that death was caused by the doing of a rash or negligent act by the accused, though it did not amount to culpable homicide of either description.
8. In the instant case, it is an undisputed fact that death of a person Abdul Wahab has occurred. As per postmortem report Ex.A7, cause of death of the said Abdul Wahab was shock due to antemortem injuries to spinal cord produced by blunt force impact. It has not even been argued by the accused that death of Abdul Wahab has not occurred due to the accident or that it has been caused by any other extraneous or intervening circumstance. Thus, there is absolutely no manner of doubt that death of Abdul Wahab has occurred due to the accident in question.
9. It was next required to be proved by the prosecution that the said accident which resulted in death of Abdul Wahab and injuries to Raghunath Patra was caused by rash or negligent act of the accused. It FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 6 of Page 10 has been alleged by the prosecution that accused was responsible for looking after construction work in the building in question and that since he failed to provide adequate safety measures at the construction site, one of the labours Raghunath Patra working at the site slipped and fell down on a passerby Abdul Wahab resulting in death of said Abdul Wahab and also resulting in injuries to labour Raghunath Patra. The fact that labour Raghunath Patra suffered injuries stands proved from MLC Ex. A9. I shall now discuss as to whether it has been proved that it was the accused who was responsible for carrying out construction work in the building in question. It is an undisputed fact that accused was neither the owner nor the resident of the building in question. It is also an undisputed fact that accused was not the contractor to whom construction work had been awarded by the owner. Developer of the said building is claimed to have been one Rizwanul Hassan, who was examined as PW2. It was stated by PW2 that he had entered into contracts for construction of the said building vide 3 agreements. The said documents are Ex. PW2/A, Ex.PW 2/B and Ex.PW 2/C. As per the said documents Ex.PW2/B and Ex.PW 2/C, contract for construction was given by Rizwanul Hassan to one Raj Kumar and contract for electrical work was given by Rizwanul Hassan to Mohd. Khalid. Name of accused has not been mentioned in any of the said two documents. Thus, as per the said documents Ex.PW 2/B and Ex.PW 2/C, Raj Kumar and Mohd. Khalid were assigned with the task of construction being carried out in the building in question and to carry out electrical work. Prosecution has not been able to prove that construction work was further sub delegated by any of the said contractors to the accused. It has been argued by Ld. APP for the State that it was stated by PW2 during his cross examination that he had appointed the accused to look after the construction work.
FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 7 of Page 10
However, apart from bare oral averment of PW2, there is nothing on record to substantiate averment made by PW2 in this regard. It has not been shown by the prosecution as to why and in what capacity had PW2 engaged and appointed the accused to look after the construction work being carried out in the building in question. Prosecution has also neither explained nor established the scope of responsibility of the accused regarding the construction work and whether he was assigned the duty to take adequate safeguards with respect to the construction. Also, as already mentioned above, there are documents Ex. PW2/B and Ex.PW 2/C vide which work was assigned by PW2 Rizwanul Hassan to Raj Kumar and Mohd. Khalid. Given this fact, it appears hard to believe that Rizwanul Hassan would entrust the accused with the work of looking after the construction without executing some sort of written document. Also, though it was stated by PW2 that he had appointed the accused to look after the construction, he never stated that it was the duty and responsibility of the accused to ensure that adequate safety measures are adopted at the construction site. Further, if accused was indeed appointed by PW2 to look after the construction, then it is only logical to presume that he must have paid some remuneration to the accused. However, no investigation was conducted into this aspect and there is not even an iota of evidence to establish that any consideration had passed from PW2 to the accused regarding the construction work. Hence, prosecution has miserably failed to prove that accused had anything whatsoever to do with the building in question or the construction work being carried out therein. It has been argued by Ld. APP for the State that as per document Ex. PW1/A, it stands proved that contract for shuttering work in the building in question was given to the accused and that he was responsible for the same. However, there is no FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 8 of Page 10 merit in this argument. Document Ex. PW1/A says that shuttering work pertaining to the building in question had been assigned to one Naim by the accused. However, surprisingly, the said document has not been executed between the said Naim and accused. Instead, it has been executed between the said Naim and PW2 Rizwanul Hassan. Also, the said document is not the agreement vide which shuttering work had been allegedly assigned by the accused to Naim. Rather, the said document merely makes a reference in this regard. The said Naim was never examined by the prosecution to prove that any such work had been allotted to him by the accused. Going a step backwards, prosecution has not produced any document vide which shuttering work had been assigned to the accused himself. There is no evidence in this regard. In the absence of any such evidence, it has not been proved that accused himself was the contractor of shuttering work at any point of time. Thus, there is no question of him subletting the said work to Naim or any other person. It is also very pertinent to note here that document Ex. PW1/A states that responsibility for work at the construction site shall be of Naim. Thus, even if document Ex. PW1/A is considered, liability for accident in question cannot be fastened upon the accused.
10. Before concluding, I shall also discuss the aspect of rashness and negligence. As already stated above, the incident in question is no doubt an unfortunate one. However, it has not been proved by the prosecution that the said incident occurred due to rash or negligent act of the accused or of any other person associated with the construction work. There is nothing on record from which it can be inferred that incident in question could have been averted if adequate or additional safety measures were adopted at the construction site. It has not been FIR No.78/2010 State Vs Mohd. Ayyub PS Jamia Nagar Page 9 of Page 10 explained by the prosecution as to what was the omission on part of the person responsible for carrying out the construction due to which the incident in question had occurred. It has not been proved from the material on record that labour Raghunath Patra fell from the construction site due to any rash or negligent act, either of the accused, or of some other person. Thus, even element of 'rash or negligent act' has not been proved by the prosecution in the instant case.
11. In view of the above discussion, I am of the opinion that prosecution has not been able to prove its case beyond reasonable doubt. Hence, accused Mohd. Ayyub is hereby acquitted for the offences punishable u/s 288/337/304 A IPC.
RAJAT Digitally signed
by RAJAT GOYAL
Announced in the open court GOYAL Date: 2019.12.09
16:20:22 +0530
(Rajat Goyal)
on 07.12.2019 Metropolitan Magistrate08,
South East, Saket, New Delhi
07.12.2019
FIR No.78/2010 State Vs Mohd. Ayyub
PS Jamia Nagar Page 10 of Page 10