Delhi District Court
State vs . Gurbaksh Singh & Ors. on 16 December, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 198/2013
U/s : 288/336/427/34 IPC
P.S. : Mianwali Nagar
State Vs. Gurbaksh Singh & Ors.
JUDGMENT:
a) CNR No. : DLWT02-001273-2014
b) Sl. No. of the Case : 62457/2016
c) Name & address of the : Deepak Gupta S/o Lt. Sh. V.C. Gupta,
complainant R/o RZ-9, Subhash Park Extension,
Rajapuri Road, Uttam Nagar, Delhi.
d) Name & address of : 1- Gurbaksh Singh @Lucky,
Accused persons S/o Late Sh. Joginder Singh,
B-4/42, Paschim Vihar, Delhi.
2- Sandeep Kumar,
S/o Sh. Gurbaksh Singh,
R/o H.No. B-4/42, Paschim Vihar,
Delhi.
3- Ashish Mendiratta,
S/o Sh. Naresh Kumar,
R/o B-100, Ashok Vihar,
Phase-I, Delhi.
4- Anshu Mendiratta,
S/o Sh. Naresh Kumar,
R/o B-100, Ashok Vihar, Ph-I, Delhi.
5- Neeru Arora,
W/o Sh. Rajesh Kumar Arora,
R/o H.No. 256, Ashok Vihar,
Phase-I, Delhi.
FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 1/23
e) Date of Commission of : 26.07.2013
offence
f) Offence complained off : u/S 288/336/427/34 IPC
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 16.12.2022
j) State represented by : Sh. Abhishek Pandey, Ld. APP.
k) Accused persons : Sh. Nitin Sehgal, Ld. Counsel
represented by
Date of Institution : 10.12.2014
Final arguments heard on : 21.11.2022
Judgment Pronounced on : 16.12.2022
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 26.07.2013 at about 06:50 PM at D-12, Udyog Nagar, Main Rohtak Road, Delhi within the jurisdiction of PS Mianwali Nagar, accused persons namely, Gurbaksh Singh @Lucky, Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora in furtherance of their common intention being the owners of above stated property were carrying out excavation of the basement of the aforesaid premises and while doing so knowingly or negligently omitted to FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 2/23 take sufficient measure to avoid crumbling the wall of the adjoining plot a earth beneath the same (as they carried the excavation without giving a gap of 4 meters from the wall of the adjoining building) and to guard against any probable danger to human life and thereby accused persons committed an offence u/S 288/34 IPC. Secondly, on the aforesaid date, time and place, the accused persons in furtherance of their common intention were excavating the basement of the aforesaid premise so rashly or negligently as to endanger human life or the personal safety of others and the accused persons namely, Gurbaksh Singh @Lucky, Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora thereby committed an offence punishable u/S 336/34 IPC. Alternatively, on the aforesaid date, time and place, the accused persons in furtherance of their common intention damaged the wall of the adjoining building by excavating the basement in their plot and thereby they all committed an offence punishable u/S 427/34 IPC.
2. After investigation, challan for offence u/S 288/336/427/34 IPC was filed. Compliance of Section 207 Cr.P.C was done. FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 3/23
3. Charge for committing the offence punishable under Section 288/336/427/34 IPC was framed against accused persons namely, Gurbaksh Singh @Lucky, Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora on 23.04.2016 to which they pleaded not guilty and claimed trial.
4. To substantiate its case, the prosecution examined four witnesses.
5. PW-1 Ct. Rajinder Singh, PIS No. 28071209, 3 rd Batallion, Vikaspuri, Delhi, is the witness in the present case, who deposed that on 26.07.2013 he was posted at PS Mianwali Nagar as Ct. On that day at about 07:45 PM he alongwith SI Balwinder Singh were on patrolling duty in the area of PS Mianwali Nagar. During patrolling duty at above stated time they reached at D-12, Udyog Nagar, Peeragarhi, where they found that some public persons were gathered there. On reaching there it transpired that the basement digging work was in progress at D-12 Udyog Nagar, Peeragarhi. At the same time, it was also found that the wall which was belonging to D-11, (Symphony Banquet Hall) Udyog Nagar fell FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 4/23 down due to digging work which was in progress at D-12. At that time one person namely Deepak Gupta, who was the manager of D-11 met them and apprised that due to construction work by the owner namely Gubaksh @Lucky of D-12, the wall of his banquet hall fell down due to digging basement work. At the same time the above stated manager handed over to IO a written complaint and also apprised that one of his security officer namely Gopal Shara received injuries due to fall of wall of D-11 because of digging work at D-12. It was also revealed as the same fact was apprised by complainant namely Deepak Gupta that injured namely Gopal Sharma had been removed to Navjeewan Hospital, Pitampura, Delhi. Thereafter, IO prepared rukka/tehrir on the statement of complainant and the same was handed over to him for registration of FIR. On receipt of original rukka/tehrir, he went to PS where the present case FIR was got registered. After registration of FIR he returned at the spot and handed over original rukka/tehrir and copy of FIR to IO. Thereafter, he alongwith IO went to Nav Jeewan Hospital to get the information regarding admission of injured Gopal Sharma. In the hospital IO recorded the statement of injured Gopal Sharma. Thereafter, he alongwith IO returned at PS and in that FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 5/23 regard his statement u/S 161 Cr.P.C. was recorded by the IO.
In his cross-examination, witness stated that it was correct that they reached at the spot on their own without any call, they reached on general patrolling duty at the spot. 15-20 persons were gathered at the spot. They did not inquire from any public persons gathered at the spot about the incident. Nor any statement of any such public persons were recorded by them. They also did not note down the name and address of such public persons gathered at the spot. It was correct that he had seen some digging work at the spot. It was also correct that labour was working for such digging work at the spot. There were also supervisor/thekedar over such labour who was doing job at the spot. They had not inquired or recorded any statement of any such labour/thekedar/supervisor, who was working at the spot regarding the said digging work. No instrument/machine was seized from such labours/thekedar in connection with the digging work at the spot. The spot in question is D-12, Udyog Nagar, Peeragarhi, Delhi. No owner of D-12 Udyog Nagar was present at the spot as per their inquiry. The digging work was done under the supervision of one supervisor and thekedar. No building was already constructed at the spot, it was plain ground on which FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 6/23 digging work was going on. No survey was done by them as to why the wall of D-11 had fallen. When they reached the spot, digging work was going on. No photographs were clicked at the spot in his presence. He and Balvinder Singh reached at the spot at about 7:45 PM and they remained at the spot for about half an hour, in between the IO recorded the statement of one Deepak Gupta. No verification of the name and designation of Deepak Gupta was done by them before recording his statement. He returned from PS after about half an hour. Thereafter, again they remained at the spot for about 15-20 minutes. No documentation/paper work was done by the IO at the spot after he returned from the PS with the FIR in his presence. Thereafter, he alongwith SI Balwinder went to the hospital. No public person accompanied them to the hospital. He never came back to the spot regarding that case ever. His statement was recorded on the same day at the spot before he went to the PS. It was wrong to suggest that he had not joined the investigation in the present case. It was wrong to suggest that he was a dummy witness. It was wrong to suggest that he was deposing falsely at the instance of the IO of the present case. It was wrong to suggest that he did not know anything about the present FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 7/23 case.
6. PW-2 Amit Mittal, S/o Late Sh. Ashok Mittal, R/o 189, Top Floor, Pocket-12, Sec-24, Rohini, Delhi, is the witness in the present case, who deposed that on 26.07.2013, he was working as a manager at Symphony Celebrators Pvt Ltd banquet hall at D- 11, Udyog Nagar, Main Rohtak Road, Delhi. On that day partition wall between the plot no D-11 and D-12 was collapsed at about 06:30 PM and at that time it was raining. Due to the collapse of the wall, alarm was created in the inmates of the aforesaid banquet situated at D-11. The owner of the D-12 plot was Gurbaksh Singh @Lucky, who was present in the court and correctly identified by the witness. The excavation for the double basement was going on at D-12 plot at that time.
At that stage, Ld. APP for the state sought the permission of the court to cross-examine the witness u/S 154 IE Act and it was heard and allowed by the court. It was correct that accused Gurbaksh Singh did not make any arrangement for the safety measures for building the double basement in his plot.
In his cross-examination, witness deposed that M/S FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 8/23 Symphony celebrations was a Pvt Ltd Company. It was correct that M/S Symphony Celebrations had many directors. He only knows one Mr. Sanjay Gupta and did not know about the other persons of M/S Symphony Celebrations. He did not know whether M/S Symphony Celebrations had not given any authority letter in the present case to file the complaint. He did not know whether the company M/S Symphony Celebrations also had not issued any authority letter or passed any memorandum regarding any damage or loss in reference to the present case. On the day of incident it was raining throughout the day. On that day of incident the labour was working even though it was raining throughout the day. Vol. The workers would start working when it would stop raining. He only knew that there was some labour working in D-12 but he did not know under whose supervision the labour was working at D-12. It was correct to say that he was not in touch or in communication with any labour, supervisor, thekedar, architect or the owner of D-12. It was wrong to suggest that he was not working as a Manager with M/S Symphony Celebrations Pvt Ltd at that time. It was correct to say that the police had not collected any document or ID from him in reference to his service with M/S Symphony FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 9/23 Celebrations. It was wrong to suggest that the excavation for the double basement was not going on at D-12 at that time. It was wrong to suggest that he was deposing falsely.
7. PW-3 SH Amrit Singh, S/o SH. Sohan Singh, R/o B-8/10 & 11, Sector-5, Rohini, Delhi, is the witness in the present case, who stated that on 26.07.2013, he was working as manager at Symphony Celebrators Pvt Ltd. Banquet hall at D-11, Udyog Nagar, Main Rohtak Road, Delhi. On that day partition wall between the plot no. D-11 and D-12 was collapsed at about 06:30 PM and at that time it was raining. Due to the collapse of the wall, alarm was created in the inmates of the aforesaid banquet situated at D-11. The owner of the D-12 plot was Gurbaksh Singh @Lucky, who was present in the court and correctly identified by the witness. The excavation for the double basement was going on at D-12 plot at that time and accused Gurbaksh Singh did not make any arrangement for the safety measures for building/excavation of the double basement in his plot.
In his cross-examination, witness deposed that police did not ask him to provide any document in regard to his employment FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 10/23 with M/S Symphony Celebrators. It was wrong to suggest that he was not working with M/S Symphony Celebrations at the time of incident. He thinks M/S Symphony Celebrations was private limited company, as per his knowledge one Mr. Sanjay Gupta was the Director of M/S Symphony Celebrations. He did not know about any other directors. On 26.07.2013 labour and machinery was working at the site of D-12.
Court question was asked to the witness that what was the machinery and he answered it was a JCB machinery.
He did not remember the exact time when police came at the site. It might have been about 07:00 to 07:30 PM, when police came. He did not remember at present if that day police made any enquiries from him. It could have been the next day when inquiry was made from him. He did not remember whether on 26.07.2013 police made any inquiries/record any statements/ prepare any documentation regarding other persons before him as he was busy in his own work. After the incident he was busy in his own work so he did not know regarding any supervisor/architect/thekdedar of D-12 . After the incident, he got busy in his own work at their own banquet hall and so he did not know police inquired any labour or FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 11/23 not. He did not remember whether he had visited police station in reference to that case ever. He did not remember that police inquired or done any investigation or prepared any documentation in reference to this present case even after the date of incident. His statement was recorded by the police but he did not remember when and where police recorded his statement. It was wrong to suggest that excavation of the double basement was not going on at D-12. He did not know under whose supervision the construction work of D-12 was going on. It was correct that he was not having any personal knowledge about the construction work going on at D-12. It was wrong to suggest that he was deposing falsely.
8. PW-4 SI Omprakash, PIS No. 28862042, PS Safdarjung Enclave, is the witness/ 2nd IO in the present case, who deposed that he was the second IO of the case. The case was handed over to him for further investigation on 14.11.2014. He had prepared the chargesheet and submitted before the Hon'ble Court.
In his cross-examination, witness/IO deposed that when he was handed over the file of the case by the 1 st IO, he was handed over some photographs by the 1 st IO and the first IO also handed FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 12/23 over to him some documents pertaining to this case but he did not remember what were those documents. He had not done any investigation in the present case except preparing chargesheet. He had also not verified the photographs and the documents handed over to him by the 1st IO. It was incorrect to suggest that he never met any witness of this case. However, he did not remember the name and particulars of the witness he met pertaining to this case. It was correct that he did not know the contents of the case. Again said he know the facts of the case. It was incorrect to suggest that he had received the documents from the 1st IO and as it is he filed the same without going into the details of the case. It was incorrect to suggest that he was deposing falsely.
9. The accused persons admitted FIR No. 198/2013 dated 26.07.2013 and endorsement on rukka vide Ex.A1 - Ex.A2 u/S 294 Cr.P.C respectively.
10. I have heard Ld. APP for the State, Ld. Counsel for accused persons namely, Gurbaksh Singh @Lucky, Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora and have carefully FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 13/23 gone through the material on record.
11. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of 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 on to the accused persons. Also it is a settled proposition of criminal law that accused persons are entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
12. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused persons namely, Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora are entitled to be acquitted for the charges, however accused Gurbaksh FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 14/23 is liable to be convicted for the charge u/S 336 IPC.
13. Section 288 IPC provides the offence of negligent conduct with respect to pulling down or repairing buildings.--Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building 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.
14. Firstly, it is noticed that as per testimony of PW-1, the witness has admitted in cross-examination that no building was constructed at the spot and that it was a plain ground on which digging work was going on. Similarly, neither PW2, PW3 and PW4 have given any deposition so at to attract Section 288 IPC. From the testimonies of witnesses, it is categorical that digging work/excavation work was going on qua basement in plot D-12 Udyog Nagar and there was nothing regarding pulling down or repairing any building or any knowing or negligent omission with FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 15/23 respect to taking sufficient guard against any probable danger to human life from the fall of that building or any part thereof. It is settled principle of law that penal statutes should be strictly interpreted, i.e. if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty. From the evidence of PW1, it is clear that wall belonging to D-11 plot, wherein Symphony banquet hall fell down due to digging work in progress at D-12 plot belonging to the accused/owner Gurbaksh Singh @Lucky. In these circumstances, Section 288 IPC is not made out as digging work was going on on plain ground and there was no pulling down of building or any repair work qua building being conducted by the accused persons at the plot. Accordingly, accused persons are acquitted for the charge under Section 288/34 IPC.
15. Section 425 IPC provides that whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 16/23 destroys or diminishes its value or utility, or affects it injuriously, commits mischief.
16. The offence of mischief requires intent to cause destruction of any property or any change in such property so as to diminishing its value or requires knowledge that the accused knew that he was likely to cause wrongful loss or damage to the property of the public or any person. From the facts and circumstances as ascetained from the testimony of the witnesses, it is clear that none of the accused persons had any intent to cause mischief or by their conduct and actions they could be imputed knowledge that they were likely to cause loss or damage to the public or any person qua property. From the evidence of PW1, who reached the spot about 1 hour after the incident was told to him by complainant Deepak Gupta (since expired on 05.03.2015) who had lodged complaint on behalf of M/S Symphony Celebrations Pvt Ltd that Gurbaksh Singh @Lucky had caused the wall of D-11 plot to fall down due to digging of basement work on D-12 plot. Whereas PW2 and PW3 deposed that owner of the D-12 plot was Gurbaksh Singh @Lucky, who was causing excavation of double basement at D-12 plot and had not FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 17/23 made arrangement for safety measures for building the double basement. It is pertinent to note that no thekedar or labourer was made accused, who were actually performing the excavation of the basement nor were they cited as a witness by the IO. PW1 admitted that police made no inquiries or recorded any statement of labour/thekedar/supervisor regarding the digging work. In my view Section 427 IPC is not made out against any of the accused persons as from the evidence they cannot be imputed either intent or knowledge to cause mischief. In Sarwan Singh Ratan Singh Vs. State of Punjab AIR 1957, SC 637, it was observed by the Hon'ble Supreme Court that "considered as a whole the prosecution story may be true, but between "may be true" and "must be true"
there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted." It is in evidence that digging work was going on on plain ground by labour and JCB machinery as per evidence of PW3, however the element of intent or knowledge to cause mischief is not made out, since intent requires mens rea, whereas knowledge is the awareness of the consequences of the act but there is no direct evidence in this FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 18/23 regard as the IO failed to record the statements of the thekedar/labourers present at the spot. In these circumstances, accused persons are acquitted for the charge under Section 427/34 IPC.
17. Section 336 IPC provides that whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
18. The term negligence has been defined by the Supreme Court in Mahadev Prasad Kaushik Vs. State of UP, 2009 2SCC CR 834 as the omission to do something, which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. Besides, such negligence as would justify a verdict of conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. Rashness can be summed up FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 19/23 as an act which is reckless or is done in a manner which is dangerous to public life.
19. It was submitted by the Ld. Counsel for the accused persons that the prosecution has not been able to prove the offence of Section 336/34 IPC beyond reasonable doubt against any of the accused persons as IO did not examine any eye witnesses of the incident nor examined the thekedar or the labourers present nor seized any JCB machine used for digging nor the cause of felling of wall was established by any survey report nor the damaged bricks were seized by the IO of the wall, which allegedly fell down. Ld. Counsel submitted that PW2 and PW3 were interested witnesses as they were working for the complainant i.e. M/S Symphony banquet hall and their testimony was not reliable.
20. Having bestowed my careful attention to the evidence available, I am unable to agree with the submissions of the Ld. Counsel for accused persons. PW2 and PW3 have given categorical statements that partition wall between plot no. D-11 and D-12 collapsed at about 06:30 PM as owner of the D-12 plot, who was FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 20/23 Gurbaksh Singh @Lucky and was correctly identified by the witnesses was causing excavation of the double basement at his plot without making any arrangements for the safety measures or taking due precautions. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury either to the public or to any individual in particular, which having regard to the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. The shortcomings in the investigation conducted by the IO cannot grant any benefit to the accused person where there is sufficient evidence against the accused to otherwise convict him for the charge. The evidence of PW2 and PW3 cannot be discredited just because they were working in the adjoining plot whose wall fell down during the incident. They cannot be called interested witnesses. There is FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 21/23 nothing to suggest any previous enmity or grudge between the witnesses and the accused. In my view, PW2 and PW3 would not spare the actual culprit, who caused the incident leading to the collapse of the wall. Both PW2 and PW3 have blamed accused Gurbaksh Singh @Lucky for the double basement excavation being conducted rashly and negligently without regard to human life or personal safety of others as they blamed accused Gurbaksh Singh @Lucky for not taking safety measures and precautions for building the double basement at his plot. In my view, accused Gurbaksh Singh @Lucky is liable to be convicted for the offence u/S 336 IPC. Whereas the remaining accused persons, Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora are entitled to be acquitted due to lack of evidence.
21. Keeping in view the aforesaid facts and circumstances of the present case, it is held that the prosecution has succeeded in proving its case against accused Gurbaksh Singh @Lucky for the offence u/S 336 IPC, whereas the remaining accused persons Sandeep Kumar, Ashish Mendiratta, Anshu Mendiratta and Neeru Arora are acquitted for the charged offences. Accordingly, FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 22/23 Gurbaksh Singh @Lucky stands convicted under Section 336 IPC.
Copy of the judgment is served free of cost on the convict Gurbaksh Singh @Lucky.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 16th of December, 2022 16.12.2022
FIR No: 198/2013 State v. Gurbaksh Singh & Ors. Page 23/23