Delhi District Court
State vs . Vijay Adlakha & Anr. on 17 December, 2015
State Vs. Vijay Adlakha & Anr.
IN THE COURT OF MS. SHREYA ARORA MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Vijay Adlakha & Anr.
FIR No.: 640/1997
U/s : 288/304A IPC
PS: Mehrauli
JUDGMENT
1 Serial No. of the case : 372/2/11
2 Date of commission : 07.11.1997
3 Date of institution of the case : 12.11.1998
4 Name of complainant : Mr. Subhash Kumar
5 Name of accused : (1) Vijay Adalkha S/o Mr.
Radhey Shyam Adalkha
R/o H. NO. 583/9, Near
Colony Jameedr ,
Ballabhgarh, District
Fariabad, Haryana
(Proclaimed Offender)
(II) Sunil Bhalla S/o Late
Sh. Raj Kumar Bhalla, R/o
W3/2, Western Avenue,
Sainik Farm, New
Delhi110062
6 Offence complained of : 288/304A IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 17.12.2015
9 Final order : ACQUITTED
10 Date of judgment : 17.12.2015
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State Vs. Vijay Adlakha & Anr.
Brief facts and reasons for the decision of the case
1. Succinctly the facts of the present case are that on 07.11.1997 at about 08.45 am at Farm Roz, Gadaipur New Delhi within the jurisdiction of PS Mehrauli, the accused while getting the building constructed knowingly or negligently omitted to take such order with respect to the building as was sufficient to guard against probable danger to human life from the fall of the building. Further, on the abovesaid date, time and place while getting the building constructed in negligent matter the fall of building material / shuttering caused the death of Chander Mandal not amounting to culpable homicide. Hence, the accused Vijay Adlakha and Sunil Bhalla are facing trial for the offences punishable under Section 288/304A/34 of the Indian Penal Code, 1860.
2. The FIR was registered. Thereafter, the investigation was completed and charge sheet was filed under Section 288/304A/34 of the Indian Penal Code, 1860. Cognizance was taken against the accused persons and provision of Section 207 Cr.PC was complied with after appearance of the accused persons. After hearing arguments, a notice under Section 251 Cr.PC for the offences under Section 288/304A/34 of the Indian Penal Code, 1860 was served FIR No. 640/1997 PS: Mehrauli 2 of 9 State Vs. Vijay Adlakha & Anr.
on 31.03.2001 against the accused persons to which they plead not guilty and claimed trial.
3. Thereafter the matter was put up for prosecution evidence. The prosecution has examined four witnesses namely PW1 HC Prem Singh who aided the IO, PW2 HC Virender Singh who was the Duty Officer, PW3 Arun Kumar Yadav who is the public witness and PW4 W/HC Harvinder Kaur who was posted at police control room. The evidence of each of the prosecution witnesses is relevant and is analyzed and discussed later at appropriate places. Prosecution evidence was closed on 26.08.2015. It is pertinent to mention that vide order dated 17.07.2013, the accused Vijay Adlakha was declared Proclaimed Offender by the Ld. predecessor of this court. The trail continued qua the other accused Sunil Bhalla. On 26.08.2015, the accused Sunil Bhalla admitted the genuineness of MLC No. 167423/97 dated 17.11.1997 Ex. A1 and PM report bearing No. A1953 dated 18.11.1997 Ex. A2 in terms of Section 294 Cr.PC. Statement of the accused was recorded on 01.09.2015 and all the incriminating evidence was put to him and the accused stated that he does not wish to lead any defence evidence.
FIR No. 640/1997 PS: Mehrauli 3 of 9 State Vs. Vijay Adlakha & Anr.
4. Final arguments were advanced by the Ld. APP and the counsel for the accused and the matter was reserved for judgment.
5. It is argued by the prosecution that on 17.11.1997 at about 08.45 am at farm No. 2, Gadaipur, New Delhi within the jurisdiction of PS Mehrauli, the accused was getting the building constructed and knowingly or negligently omitted to take such order with respect to the building as was sufficient to guard against any probable danger to human life from the fall of the building and while getting the building material/ shuttering the accused caused the death of Chander Mandal not amounting to culpable homicide.
6. The court must first examine if the prosecution has proved that the accused committed the offence under Section 288 of the Indian Penal Code, 1860 or not. Section 288, of the Indian Penal Code, 1860 provides for the punishment for negligent conduct with respect to pulling down or repairing buildings. Section 288 provides as under:
"Negligent conduct with respect to pulling down or repairing buildings whoever, in FIR No. 640/1997 PS: Mehrauli 4 of 9 State Vs. Vijay Adlakha & Anr.
pulling down or repairing any building, knowingly or negligently omits to take such order with that buildings as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
7. The essential ingredient of the offence under Section 288 of the Indian Penal Code, 1860 are as follows: (i) the accused was pulling down or repairing the building; (ii) the accused omitted to take such order with that building as was sufficient to guard against probable danger to human life from the fall of the building or any part thereof; (iii) the omission complained of was due to negligence or with the knowledge of such probable danger".
8. Further, the accused has also been charged offence under Section 304A of the Indian Penal Code, 1860, which read as under:
"Causing death by negligence.Whoever FIR No. 640/1997 PS: Mehrauli 5 of 9 State Vs. Vijay Adlakha & Anr.
causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
9. For proving the commission of this offence, it must be proved that: a) the accused must have caused the death of a person; and b) the death should have been caused by a rash and negligent act not amounting to culpable homicide.
10.Most importantly the prosecution must prove that the accused Sunil Bhalla was responsible in pulling down or repairing the building at farm No. 2 Gadaipur, New Delhi. The prosecution mainly relied on the testimony of PW3 Mr. Arun Kumar Yadav who on 09.05.2014 deposed that in the year 1997 he was residing at Gadaipur, Mehrauli, New Delhi and was working as Raj Mistri. PW3 deposed that the deceased Chander Mandal was also working as a Raj Mistri. PW 3 Mr. Arun Kumar Yadav stated that on the day of incident the deceased was working on the other side and upon hearing noise, PW3 went to the spot and FIR No. 640/1997 PS: Mehrauli 6 of 9 State Vs. Vijay Adlakha & Anr.
found that Chander Mandal was under the malwa of the broken wall. The accused Vijay Adlakha was the engineer and the accused Sunil Bhalla was the builder of the site and the incident occurred due to the negligence of both accused persons. In his cross examination, PW3 Mr. Arun Kumar Yadav deposed that the accident did not took place in his presence and he did not know how did it happen.
11. Apart from PW3 Mr. Arun Kumar Yadav the prosecution failed to examine the other public witness cited in the list of witnesses i.e. Mr. Subhash Kumar Dass, Mr. Dev Kumar Chaudhary, Mr. Ashu @ Shalu and Mr. Sunil Kumar, being untraceable despite service of summons through the office of DCP (South). The prosecution even failed examine IO SI Jagdish Prasad of the present matter, who was dropped vide order dated 09.12.2014 as stated to have been expired.
12. PW3 Mr. Arun Kumar Yadav in his testimony deposed that the accused Sunil Bhalla was the builder of the site. However, nothing has been brought on record by the prosecution as to establish how the accused Sunil Bhalla was implicated and arrested. No document whatsoever FIR No. 640/1997 PS: Mehrauli 7 of 9 State Vs. Vijay Adlakha & Anr.
has been placed on record by the prosecution to show that the accused Sunil Bhalla was the builder. The examination of the IO would have thrown light on the same but as stated aforesaid the prosecution failed to examine the IO. Further, the alleged incident did not happen in the presence of PW3 Mr. Arun Kumar Yadav and it cannot be construed whether it was the fault of the deceased or of the accused. Therefore, it cannot be construed that the accused knowingly or negligently omitted to take such order as is required under Section 288 of the Indian Penal Code, 1860.
13.There can be number of probabilities in which the accident may have occurred. In absence of any cogent evidence against the accused, he cannot be convicted of the said offence, least on the basis of a mere presumption. Hence, the offence under Section 288 of the Indian Penal Code, 1860 is not made out against the accused.
14.Further, to secure conviction under Section 304A of the Indian Penal Code, 1860 the prosecution is also required to prove that death of victim was the direct result of negligent act of the accused without intervention of another's negligence. It has to be shown that the accident FIR No. 640/1997 PS: Mehrauli 8 of 9 State Vs. Vijay Adlakha & Anr.
which resulted due to negligence of the accused was causa causans and not sine qua non for the death of the victim. As the offence under Section 288 of the Indian Penal Code, 1860 could not be established, the offence under Section 304A of the Indian Penal Code, 1860 is also not attracted in as much as the same flows from the former.
15.Hence, the accused Sunil Bhalla is acquitted for the offences under Section 288/304A/34 of the Indian Penal Code, 1860. Put up for furnishing of bail bonds in compliance of Section 437A of Cr.P.C on 22.12.2015.
Announced in the open (SHREYA ARORA MEHTA) court on 17.12.2015 MM5 (South), Saket Courts, New Delhi Certified this judgment contains nine pages and each page bears my signatures.
(SHREYA ARORA MEHTA)
MM5 (South), Saket Courts,
New Delhi/17.12.2015
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