Delhi District Court
State vs . Gajender Kumar on 4 March, 2017
State vs. Gajender Kumar
IN THE COURT OF SH DHARMENDER RANA
Additional Chief Metropolitan Magistrate02, Central, THC, Delhi
State Vs. Gajender Kumar
N Case N0: 290289/16
FIR N0. : 128/07
U/S : 338 IPC
PS : Roop Nagar
J U D G M E N T
a) Sl. No. of the case : 976/ST/07
b) Date of commission of offence : 21.03.2007
c) Date of institution of the case : 05.12.2007
d) Name of the complainant : Sh. Ved Prakash Sharma
e) Name & address of the : Gajender Kumar S/o Sh.
accused Uday Ram,
R/o H.No. 227/F, PocketI,
Mayur Vihar, Delhi.
f) Offence complained off : 338 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 04.03.2017
i) Final order : Acquitted
FIR No. 128/07 1
State vs. Gajender Kumar
j) Date of Judgment : 04.03.2017
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, the case of the prosecution is that on 21.03.2007 at about 5.15 PM, complainant Ved Prakash Sharma (PW1) was purchasing fruits from fruit vendors in front of house no. 19/4, Shakti Nagar, Delhi. He has barely moved after purchasing the fruits, when he heard people shouting that a tree is falling. He turned back and noticed that a tree fell on a wall and the wall alongwith the tree fell upon him. The complainant fell on the road. At the pertinent point of time, accused Gajender Kumar was indulged in felling of the tree. Consequently, upon the complaint Ex.PW1/A, FIR Ex.PW3/A was registered and investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A formal notice for the offence U/s 290/338 IPC was served upon the accused on 12.12.2008 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined nine FIR No. 128/07 2 State vs. Gajender Kumar witnesses.
4. Complainant PW1 Sh. Ved Prakash Sharma has testified that in the month of March 2007 at about 5.15 PM, he was purchasing fruits from a Rehri wala on the road at 19/4, Shakti Nagar, Delhi. He heard people crying "Bacho Bacho" (save yourself
-2). He tried to escape, but a tree fell upon him causing injuries upon his person and he was crushed under the wall. He saw the accused with a saw and Mr. and Mrs. Thaper instructing him to cut the tree but the complainant was not removed by anyone of them. He has proved his statement Ex.PW1/A. He has specifically alleged that the incident happened due to the negligence of accused.
5. Sh. Manoj Kumar Gupta (PW2) has testified that on 21.03.2007, he informed the owner of house no.23/1, who in turn informed the landlord of house no.19/4, about a leaning tree from house no.19/4. On the said intimation, accused came at the spot and they informed him about the said tree and a crack of boundary wall. Accused called 3-4 labourers at the spot and started cutting the tree with a saw. In the process of cutting the tree, tree alongwith the boundary wall fell on the complainant Ved Prakash Sharma, who was trapped under the debris of the wall and the tree.
FIR No. 128/07 3State vs. Gajender Kumar Complainant sustained injuries. Sh. Manoj Kumar Gupta alognwith another Rehri vendor Ganesh took the injured to Parmarth Hosptial. He has proved the arrest memo Ex.PW2/A and personal search memo Ex.PW2/B.
6. HC Parvesh Tyagi (PW3) is the Duty Officer, who has registered the FIR Ex.PW3/A and proved the endorsement on the rukka Ex.PW3/B. He has also proved the DD entry no.27A Ex.PW3/C.
7. Sh. Ganesh (PW4) is a fruit vendor, who has testified that on 21.03.2007 in front of house no. 19/4, Shakti Nagar, Delhi, he noticed accused calling some labour to cut a tree hanging upon the road from the wall of the abovesaid house. When the labour was cutting down the tree, it fell on the wall and the wall collapsed and fell on complainant Ved Prakash, who sustained injuries. The injured was taken to the hospital.
8. HC Vinod Kumar (PW5) is a police official, who accompanied the IO in the investigation of the instant case. He got the FIR registered in the present matter upon the instructions of the IO. He has identified his signatures upon the arrest memo FIR No. 128/07 4 State vs. Gajender Kumar Ex.PW2/A and personal search memo Ex.PW2/B. He has also proved the photographs of spot marked P1 to P4.
9. Dr. Raman Khurana (PW6) is Radiologist, Nulife Hospital, who has proved his report Ex.PW6/A to Ex.PW6/D.
10. Dr. M.L. Monga (PW7) is consultant (Ortho) Surgeon, Parmarth Mission Hospital, who has proved the MLC Ex.PW7/A.
11. Dr. Anil Raheja (PW8) is consultant (Ortho) Surgeon, Nulife Hospital, who has proved his opinion Ex.PW8/A.
12. Ms. Kamla (PW9) is the Administrative Officer, Civil Line Zone, who has proved the house tax receipts dated 09.06.2006 Ex.PW9/A and its relevant issuance register entry Ex.PW9/B.
13. Upon completion of P.E., statement of accused U/s 313 Cr.P.C was recorded on 02.03.2017 wherein accused has pleaded innocence. He has opted not to lead any defence evidence.
FIR No. 128/07 514. I have heard the rival submissions and carefully perused the record.
15. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
16. Prosecution has alleged the commission of offence u/s 290 IPC which is reproduced herein as under:
Section 290 in The Indian Penal Code
290. Punishment for public nuisance in cases not otherwise provided for.--Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to two hundred rupees.
Section 290 IPC enshrines the punishment for commission of the offence of public nuisance.
FIR No. 128/07 6State vs. Gajender Kumar Section 268 IPC defines the offence of public nuisance here as under:
Section 268 in The Indian Penal Code
268. Public nuisance.--A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.
17. In order to bring home a charge for offence u/s 290 IPC, it is incumbent upon the prosecution to prove that the accused is guilty of some culpable act or omission causing injuries, danger or annoyance. It has been observed by the Hon'ble Apex Court in the matter of FIR No. 128/07 7 State vs. Gajender Kumar Suhelkhan Khudyarkhan & Anr vs State Of Maharashtra & Ors (CRIMINAL APPEAL NO.1039 OF 2005 D.O.J on 15 April, 2009) that:-
Public nuisance' or `common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the `IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity.
18. In the case at hand, there is not even an iota of evidence to connect the accused with the alleged public nuisance. The tree, which is at the root of the entire dispute, was admittedly protruding out from house no. 19/4, Shakti Nagar, Delhi. It is an admitted case of the prosecution that accused Gajender Kumar was not the owner of house no. 19/4, Shakti Nagar, Delhi. Prosecution witnesses have themselves admitted that the house belongs to one Sh. S.K. Thapar. PW9 Ms. Kamla has also testified before the court that as per the property records, the house belongs to one Sudesh Thapar. Prosecution has failed to bring on record any evidence to prove that FIR No. 128/07 8 State vs. Gajender Kumar accused Gajender Kumar was liable to take care of house no. 19/4, Shakti Nagar, Delhi. In the absence of any evidence to the contrary, it cannot be presumed that accused was liable for commission of any public nuisance attributable to the abovesaid tree protruding out of the said house. Thus, in my considered opinion no culpable act or omission cannot be attributed against the accused, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. Thus, I have no hesitation in holding that the charge for commission of offence u/s 290 IPC against the accused is bound to fail.
19. Now, I move on to analyze the material available on record to ascertain the guilt or innocence of the accused for commission of the offence u/s 338 IPC. The element of rashness or negligence is sine qua non for offence u/sec. 338 IPC and same is required to be conclusively established on record and cannot be presumed. In the case of B. C. Ramachandra v. State of Karnataka 2007 Cri. L. J. 475, the Court relied upon a number of decisions of the Apex Court and concluded that in criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur.
FIR No. 128/07 920. The case of the prosecution hangs upon the testimony of complainant Ved Prakash Sharma (PW1), Sh. Manoj Kumar Gupta (PW2) and Sh. Ganesh (PW4).
21. Sh. Ved Prakash Sharma (PW1) has simply that accused was negligent without describing the mode and manner of the alleged negligence. He has simply testified that a tree fell upon him inflicting injuries upon him. He has testified that he saw the accused with a saw in his hand and Mr. & Mrs Thapar instructing him to cut the tree. However, he has failed to throw any light as to how come the accused was guilty of culpable rashness or negligence.
22. On the contrary, Sh. Manoj Kumar Gupta (PW2) and Sh. Ganesh (PW4) have testified that people were told to stay away from the area as at the pertinent time a tree was being cut. Sh. Ganesh (PW4) has categorically testified that he specifically informed the injured that the tree was about to fall. Sh. Manoj Kumar Gupta (PW2) and Sh. Ganesh (PW4) have further testified that in spite of warning the complainant paid no heed and continued to walk upon the pavement wherein the tree was about to fall. Further, both of them have also testified that the tree was in a dilapidated and a bad shape FIR No. 128/07 10 State vs. Gajender Kumar and it was in fact desirable to cut down the tree to avoid any greater danger. The prosecution has failed to bring on record that what act or omission in cutting the said tree was attributable to the accused to indict him of culpable rashness or negligence.
23. Straight, J. in Empress of India Vs. Idu Beg, (1881) 3 Allahabad 776 which has been referred with approval by the Supreme Court in Bhalchandra Waman Pathe Vs. The State of Maharashtra, Crl.A. No.62 of 1965 decided on 20.11.1967 and again in S.N. Hussain (supra), which reads as under :
"Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted."FIR No. 128/07 11
24. The prosecution has failed to bring on record any hazardous or dangerous act or omission attributable to the accused. The prosecution has equally failed to establish on record any gross and culpable neglect or want of any care and precaution on the part of the accused. Rather to the contrary, the circumstances suggests that the accused was trying to remove a tree which was in a dangerous state and the incident whereby the complainant sustained injuries was on account of an unfortunate accident or misfortune. Thus, considering the totality of the circumstances, I am of the opinion that it would not be safe to convict the accused upon the solitary allegation of the complainant that the accused was negligent.
25. As a cumulative effect of the aforesaid discussion, I am of the opinion that prosecution has failed to prove the charges levelled against the accused. Accused stands acquitted for the charges U/s 290/338 IPC levelled against him. Ordered accordingly.
Announced in the open court
on 04.03.2017 (Dharmender Rana)
ACMM-02/Central/
Delhi /04.03.2017
FIR No. 128/07 12