Delhi District Court
State vs Ajay Bhalla on 16 October, 2019
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL, MM07 (West)
TIS HAZARI COURTS, DELHI
FIR No. :454/2013
PS :Tilak Nagar
Offence Complained of : 288/338 IPC
Date of commission of Offence : 11.09.2013
Unique Case I.D. No. : 61891/2016
STATE VS AJAY BHALLA
Ajay Bhalla S/o Late Sh. Roshan Lal
R/o WZ 15 D/1, Gali No. 12, Krishna Park,
Tilak Nagar, New Delhi
......................Accused
ASI Dharampal
PS Tilak Nagar, Delhi.
................Complainant
Date of Institution : 24.03.2015
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 28.09.2019
Date of pronouncement : 16.10.2019
Final order : Acquitted
Brief reasons for the decision of the case:
1.In brief, the story of the prosecution is that on 11.09.2013 at 8.40 A.M, a DD No.34 was recorded at PP Tilak Vihar upon information being received FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 1 of 15 Date of Decision:16.10.2019 that one Sh. Mohd. Anish had been admitted in Balaji Action Hospital, in an injured condition, after having fallen while working in a building. When ASI Dhrampal went to the spot for enquiry, it was found by him that Anish Ansari was working at house no. 15D/13, Gali No.12, Krishna Puri, Tilak Nagar, belonging to the accused Ajay Bhalla. While working in the said house, the injured had fallen from 2nd Floor. The injured was found unfit for statement and admitted in ICU in the hospital. ASI Dharampal prepared a rukka on the basis of said DD entry. Accordingly, the present FIR was registered at PS Tilak Nagar under Sections 288/337 of Indian Penal Code, 1860 (IPC).
2. During investigation, the injuries of Mohd. Anish were found to be grievous in nature, so after completion of investigation, charge sheet was filed against the accused for offences punishable under Sections 288/338 IPC on 24.03.2015 and cognizance of offence was also taken on the same date.
3. The matter was also referred for mediation between the parties, but the same was unsuccessful and the case reverted to this Court. Notice of accusation under Section 251 of Code of Criminal Procedure, 1973 (Cr.P.C.) was served upon the accused for offences punishable under Sections 288/338 IPC on 05.12.2018 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined six witnesses.
5. PW1 is ASI Mange Ram. He has deposed that he was the Duty Officer at PS Tilak Nagar on 12.09.2013 and his duty hours were 12.00 AM till 08.00 AM. He received a copy of rukka sent by ASI Dharampal through Ct. Raj Singh, at about 12.10 AM, on the basis of which he got FIR No. 454/13 registered. The FIR was registered by using computer system and specially designed software installed at PS, which does not allow for any alteration or FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 2 of 15 Date of Decision:16.10.2019 deletion subsequent to the feeding of data. True print of FIR is Ex.PW1/A. He handed over a copy of the FIR to Ct. Raj Singh and made an endorsement, Ex. PW1/B, on the tehreer.
6. PW2 is Ct. Raj Singh. He has deposed that on 11.09.2013, he was posted at PP Tilak Vihar on emergency duty from 08.00 PM to 08.00 AM, as Constable. On the said date, a DD entry No. 34PP was made in respect of complainant falling from a building while working and had been admitted in Balaji Action Hospital vide MLC No. 4176/13. It was marked to ASI Dharampal for further action. Thereafter, he alongwith ASI Dharampal went to Balaji Action Hospital to meet the injured, who was found not fit for statement. Thereafter, they went to the place of incident but did not find any eyewitness. Thereafter, IO (ASI Dharampal) prepared the tehreer on the basis of DD No. 34PP which was given to him (this witness) for the registration of FIR. He took the same to PS Tilak Nagar and got the FIR registered. Thereafter, he took the copy of FIR to the place of occurrence and handed over the same to the IO. Thereafter, they returned to the police station.
7. PW3 is Dr. Prashant Chaudhary, who is the Neurosurgeon at Balaji Action Hospital. He has deposed that injured Mohd. Anish was admitted in the hospital on 11.09.2013 vide MLC No. 4176 and was admitted in the NeuroSurgery Department after being referred by the Emergency Department. The patient was treated by multiple specialities as he had suffered polytrauma alongwith head injury. He had operated upon the injured for head injury on 13.09.2013 and patient was discharged on 28.09.2013. The patient had suffered grievous injuries and his report is Ex. PW3/A.
8. PW4 is Mohd. Anish, who is the injured in the present case. He has FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 3 of 15 Date of Decision:16.10.2019 deposed that on 05.09.2013, the accused took him from Tilak Nagar Chowk to Krishna Puri, for labour work at his house at H. No. 15D/1, Gali No.12, Krishna Puri, at the rate of Rs.300/ per day. There was no railing on the stairs for support and there was nothing for the safety of the labourers. He (this witness) started working at the said house as a labourer from 05.09.2013. On 11.09.2013, he was transferring the debris from the third floor to the ground floor. The son of the accused scolded him and told him to be fast because of which he became afraid and started coming down fast. Due to this, he fell down on the ground floor from the third floor and sustained injuries on his head and other body parts. His leg got fractured and he became unconscious.
9. The witness further deposed that when he regained his consciousness after about three days, he found himself in Balaji Action Hospital, Paschim Vihar and came to know that he was operated upon. The accused had deposited around Rs.1,40,000/ in the Hospital. Total expenses incurred by him in his treatment was around Rs.5,00,000/ (original bill of treatment is PW4/A). His statement was recorded by the police official on 13.11.2013. The witness alleged that the incident happened due to the fault of accused as he did not take proper care and appropriate measures to arrange safeguards. He further stated that his treatment was still continuing and his life became miserable due to accused. The witness correctly identified the 12 photographs of the place (Ex. P1 colly). He also correctly identified the accused.
10.PW5 is ASI Kapoor Singh. He has deposed that on 11.09.2013, he was posted at PP Tilak Vihar PS Tilak Nagar as Head Constable and was working as DD Writer from 08.00 PM to 08.00 AM. On that day, at about 08.40.AM, SI Ashish from PS Tilak Nagar informed him telephonically that Anish S/o Mohd. Hanif R/o Harijan Basti, Tilak Vihar, had fallen from a FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 4 of 15 Date of Decision:16.10.2019 building while working, regarding which MLC No. 4176/13 was prepared at Balaji Action Hospital, Paschim Vihar, after the admission of Anish at the said hospital. He made a DD Entry No. 34PP (Ex. PW5/A) regarding the same and handed it over to ASI Dharampal for investigation.
11.PW6 is SI Dharampal, who is the IO in the present case. He has deposed that on 11.09.2013, he was posted as ASI at PP Tilak Vihar, PS Tilak Nagar and was on emergency duty and present at police post. At about 8.40 PM, DD No. 34 was received by him regarding fall of a person namely Anish while working in a building. He, along with Ct. Raj Singh, reached Balaji Action Hospital, Paschim Vihar, where the injured (complainant) was admitted vide MLC NO. 4176/13. He was declared unfit for giving statement. Thereafter, he went to the spot, i.e. 15D/1, Gali No, 12, Krishna Puri, Tilak Nagar. He did not find any eyewitness at the spot and therefore, he prepared rukka on the basis of DD Entry No. 34PP Tilak Vihar, Ex. PW6/A. He prepared tehreer and handed over the same to PW2 for the registration of FIR. PW2 went to the PS, got the FIR registered and returned to the spot with the copy of the FIR and the original rukka and handed over the same to him. From the spot, he returned to the PS with PW2. On the next day, he again visited the said hospital to record the statement of injured but he remained unfit for statement.
12.The witness has further deposed that during investigation, the photographs Ex. P1 of the spot were taken different angles by the Ct. Photographer. He also prepared the site plan, Ex.PW6/B. On 22.09.2013, the injured was declared fit for statement and his statement was recorded on 13.11.2013 by him (this witness). On the same day, accused was arrested vide arrest memo (Ex. PW6/C) and the personal search of accused was conducted vide memo Ex. PW6/D. Then the disclosure statement of the accused was recorded and he was released on police bail. Charge of Section 338 IPC was added FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 5 of 15 Date of Decision:16.10.2019 after the injuries of Anish were opined to be grievous in nature. He obtained all the documents and prepared and submitted the chargesheet in court. The witness correctly identified the accused in court.
13.The accused did not disputed the MLC of injured vide his statement recorded u/s 294 Cr.P.C., hence the examination of remaining doctor was dispensed. Thereafter PE was closed. Statement of accused u/s 313 Cr.P.C r/w Sec 281 Cr.P.C, was recorded on 27.07.2019 wherein accused stated that he had not employed Anish but rather he had hired one Rajjab Shah @ Rajat for plumbing work on 04.09.2013. He had hired one Arjun as helper. Thereafter he left for Ludhiana on 05.09.2013 as his elder brother was not well. On 11.09.2013, he was at Haridwar for last rites of his brother, who had expired. As no work was going on, on 11.09.2013, Rajab Shah had called him and asked permission to remove his plumbing equipments. Mohd. Anish being relative of Rajab Shah, had gone to his house to collect equipments. Accused alleged that when he asked Rajab Shah to return Rs.1,40,000/ spent by him (accused) on the treatment of Anish, on the request of Rajab Shah, they falsely implicated him in this case.
14.In defence evidence, led by accused, three witnesses were examined.
15.DW1 is accused himself. DW1 is accused himself. He deposed that there was some seepage in his house in the year 2013. He engaged one plumber namely Rajab Shah for repair and changing of pipe lines at his house in September 2013, for charges of Rs.31,000/. Rajab Shah gave him a list of articles which were required for change of pipe lines. Copy of the same was Mark A. Thereafter he started the work at the house. In view of the nature of the work, he (this witness) alongwith his family shifted to his another house at K89, first floor, Krishna Park Extension, New Delhi18.
FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 6 of 15Date of Decision:16.10.2019
16.The witness further deposed that on 04.09.2013, he received a phone call from his nephew Raj Kumar who resided at Ludhiana that their elder brother Late Nand Kishore, was seriously ill. On 05.09.2013, he went to Ludhiana through train and reached Ludhiana at around 12.00 noon. However, at about 3.30 P.M, his elder brother got expired. The Copy of his death certificate was Ex. DW1/A. The witness further deposed that when he informed his family members about the death of his elder brother, they immediately left for Ludhiana and reached Ludhiana in the midnight. His elder brother was cremated on the next day in the morning. Copy of certificate of cremation ground was Mark B.
17.The witness further deposed that he informed Rajab Shah on 06.09.2013 to stop the work since there was death in the family. Then they returned back to Delhi on 07.09.2013 in the night. The ashes of his elder brother was to be immersed in Haridwar in Holy Ganga river, for which his nephew asked him (this witness) to accompany him to Haridwar on 11.09.2013. Hence, he went back to Ludhiana on 10.09.2013 and accompanied him to Haridwar on 11.09.2013. His train ticket of travelling to Ludhiana on 10.09.2013 was Mark C (printout of eticket was produced without certificate u/s 65B of Indian Evidence Act). As per the witness, they had gone to Haridwar on a Tempo traveller from Ludhiana. The certificate regarding immersion of ashes in Ganga River Haridwar was Mark D.
18.The witness further deposed that on 11.09.2013, in the afternoon at about 12.00 12.30 P.M, he got a call from Rajab Shah that since the work in his house was not in progress, he wanted to take away his tools to do work at some other place. He permitted Rajab Shah to take away his tools and also informed his wife, who was at Delhi at the other house, to hand over the keys of the house in case Rajab Shah comes to take away his tools. Rajab FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 7 of 15 Date of Decision:16.10.2019 Shah collected the keys from his house in the evening. At about 4.30 P.M, he got a call from Rajab Shah that one of his labour had got injured and he wanted some help from him. He (this witness) agreed to help him for a sum of Rs.20,000/ and Rajab Shah assured him that he will adjust the said amount from the charges of the repair work/change of pipe which he had already done and the future work which he would do as and when the work was started. Hence he asked his wife to give Rs. 20,000/ to Rajab Shah which she did. The witness further deposed that Rajab Shah got the injured admitted in Action Balaji Hospital, Paschim Vihar, on his own. The medical documents of the injured also shows this fact being mentioned. In the night, he got a call of Rajab Shah once again and he asked him for further financial help stating that the injured was required to be immediately operated upon. He initially refused Rajab Shah stating that the work done by him was not of that amount which he was asking however, Rajab Shah assured him that he would repay the amount and pleaded for help stating that injured was his covillager. Hence he (this witness) asked his sonin law Pankaj Dhingra to go to the hospital and advance money which he deemed fit. Then his soninlaw went to the hospital and paid Rs.50,000/ through his credit card at the hospital, on asking of Rajab Shah. Thereafter further amount was also paid at the hospital at the request of Rajab Shah. The copy of the invoices of the hospital are Ex. DW1/B (colly). The invoices also bear the reference mobile number of Rajab Shah. As per the witness, a total of Rs.1,40,000/ was paid on the asking of Rajab Shah and he was not aware till that time, as to how and where the injured suffered his injuries.
19.The witness further deposed that he returned back in the night of 12.09.2013. On 14.09.2013, he donated blood to the injured alongwith Rajab Shah. He also called his relatives to donate blood to the injured. On FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 8 of 15 Date of Decision:16.10.2019 15.09.2013, he paid a further sum of Rs.40,000/ in cash to Rajab Shah since he assured him that he will bring EWS card and no further amount would be required to be paid in the treatment of injured. The injured was shifted to EWS ward and no further payment was made. Then on 22.09.2013, he came to know that the injured was discharged from hospital.
20.The witness further alleged that later on, Rajab Shah started demanding more money from him stating that if money was not paid, he will falsely implicate him in a false case. However, this time, he refused to make any further payment to Rajab Shah since he had already made payment of a huge amount in treatment of injured. Later on, he received a call from PS in November 2013 that he had been falsely implicated in the present case.
21.DW2 is Onitya Bhalla, the son of accused. DW2 is Onitya Bhalla, the son of accused. He deposed that he was doing CA Articleship in the year 2013 under Chartered Accountancy Firm namely VHP & Co. having office at C 1, lower ground floor, Kirti Nagar, New Delhi15. On 11.09.2013, he had gone to the office of the above firm having left the home at around 9.15 A.M in the morning and returned back to his then home at K89, First Floor, Krishna park Extension, New Delhi, at about 7.15 P.M in the evening. Photocopy of the Certificate issued by the Firm regarding the same was Mark X. The original was handed over to IO ASI Dharampal at the time of investigation.
22.The witness further deposed tha one Ram Badahi was working in their factory. In September 2013, his younger brother namely Arjun had brought Rajab Shah for doing the plumbing work at their house at Krishna Puri. The statement of Arjun and Rajab Shah was also recorded at the P.S. in this regard somewhere in October 2013, the copy of which was Mark Y and Z FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 9 of 15 Date of Decision:16.10.2019 respectively. He also deposed that on the date of incident, he was not present either at his house at Krishna Puri or at Krishna Park Extension, since he was at his office between 10.00 A.M. to 6.30 P.M.
23.DW3 is Ashok Kumar, the brother of accused. He deposed that on 04.09.2013, he had received a call from his brother( accused) and he informed that their elder brother namely Nand Kishore @ Ramesh Kumar was seriously ill at Ludhiana. He (this witness) expressed his inability to go to Ludhiana on that day. On the next day, i.e. 05.09.2013, he received a call from accused at about midnight that Nand Kishore had expired. Accused was at Ludhiana at that time. On the next day, he (this witness) alongwith the family members of accused went to Ludhiana on a tempo traveller. They remained there till 07.09.2013 and also attended the cremation of Nand Kishore.
24.The witness further deposed that on 14.09.2013, he went to hospital, i.e. Balaji Action Hospital for blood donation to injured (Anish). Thereafter, his son Sanjeev donated blood to the injured. The relevant document in this regard was Ex.DW3/A.
25.Thereafter DE was closed. Final arguments were addressed on behalf of both the parties. Ld. Counsel for accused prayed for acquittal of accused arguing that no case was made out against the accused.
26.I have given thoughtful consideration to the arguments addressed before the court and have also carefully perused the evidence on record. The accused is charged with offences under Sections 288 and 338 IPC which read as under:
288. Negligent conduct with respect to pulling down or FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 10 of 15 Date of Decision:16.10.2019 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.
338. Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing 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 two years, or with fine which may extend to one thousand rupees, or with both.
27. At the outset, it is pertinent to mention that the accused had not disputed the nature of injury suffered by Anish as his MLC is not in dispute, which shows that the nature of injury suffered by Anish was grievous. So the prosecution is merely required to prove the alleged culpable negligence of accused in causing injury to Anish, while carrying out repairs/renovation in the house of accused, by omitting to take the necessary and sufficient safeguards, against probable danger to the life of Anish. Even the conviction of accused u/s 338 IPC is dependent on prosecution first proving the above facts.
28. Having duly appreciated the evidence on record, in my considered opinion, the prosecution has failed to prove its case for the following reasons :
a) As per the testimony of PW4, he had been independently employed by accused on contract basis, on wages @ Rs. 300/ per day and had been doing the work of transferring the debris from the third floor to the ground floor, in the house of accused since 05.09.2013 uptill 11.09.2013 (date of the incident). He has alleged that there was no railing on the stairs for support and there was nothing for the safety of labourers. However the prosecution has not led any evidence suggesting that the FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 11 of 15 Date of Decision:16.10.2019 premises was unsafe for the said work or that sufficient guard against danger to human life due to fall, was not taken by the accused. PW4 himself has stated that the house was underconstruction/repair. Even the exhibited photographs (Ex. P1) of the spot show that the construction of the house was incomplete. Under such circumstances, all the railings in or around the stairs house cannot be expected to be installed before the construction / repair of the house is complete. Infact the photographs of the spot also show that the railings are duly installed at some places though at the same time, there are no railings at other places. Hence, in a house under construction/repair, there might be staircases, which are not guarded from both sides, however, the same cannot be termed as being unsafe for construction/repair, while the work is still underway. It is further not the case of the prosecution that the site was modified on the day of the incident that rendered it unsafe.
b) Secondly, PW4 has alleged that the son of accused had scolded him to work fast and due to this, he became afraid and started coming down the stairs very fast and in the process, he fell down to the ground floor from the third floor. So as per PW4, the son of accused was the abettor in the offence. Though, the son of accused was examined as DW2 wherein he produced of his CA Articleship firm's Certificate Mark X, as per which he was at Kirti Nagar office of his Firm, on the alleged date and time of the accident but the same has not been duly proved as per law. However, even otherwise, there is nothing on record to prove the presence of son of accused in the said house, on the date of alleged offence. Even the testimony of IO, who was examined as PW6, is silent in this regard. Further the son of accused had also not been cited as coaccused despite the fact that he was allegedly getting the work done on behalf of accused.
c) Moreover, there is no other eyewitness cited by the prosecution, who FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 12 of 15 Date of Decision:16.10.2019 witnessed the fall and injuries suffered by the accused, even though as per PW4 as stated by him in his crossexamination, 34 people were working in the house at the time of incident, who were installing bricks in the house. These coworkers were among most material witnesses to not only prove the manner in which injury was caused to PW4 but also to prove whether the premises was unsafe for work or whether sufficient safeguards were not provided by the accused. However for reasons best known to the prosecution, they are not cited as witness, if one treats the testimony of PW4 to be correct.
d) As per PW6, the injured i.e. PW4 was fit for statement on 22.09.2013 but he denied to give his statement. The statement of PW4 was recorded by him only on 13.11.2013. This in itself creates a doubt on the testimony of PW4 as the possibility of afterthought cannot be ruled out. The delay ought to have been sufficiently explained by the prosecution which has not been done.
e) If one peruses the MLC of injured (undisputed document), the injured had been brought to the hospital by one Rajat as is being contended by the accused himself however, the IO i.e. PW6 even does not know who the said Rajat @ Rajab was. Infact this Rajat may have been the eye witness of the case and may have thrown light on the prosecution case but no enquiry has been made from him despite his mobile no. being mentioned in the MLC. The mobile number of Rajab @ Rajat is also mentioned in the cash receipts of hospital Ex. DW1/B qua Anish. The accused alleges that the said Rajab @ Rajat had been engaged by him for plumbing work and Anish was relative of Rajab. So in the facts and circumstances of this case, the contention of accused appears to be highly probable.
f) The presence of accused in Delhi on the date of alleged incident is also not proved though PW4 contends that accused was in Delhi on the date FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 13 of 15 Date of Decision:16.10.2019 of incident. Accused examined himself as DW1 wherein he produced document Ex. DW1/A as per which he was at Haridwar on 11.09.2013, attending the last rites of his deceased brother. Infact the cross examination of accused as DW1 by Ld. APP, corroborates the contention of accused that he was at Haridwar on the date of incident. So it is clear that the alleged incident happened at the back of accused.
g) Another allegation on the part of prosecution was that the safety gear was not provided to PW4 for doing his work which led to injuries being suffered by PW4. It is worth noting that the complainant had been doing the same work on the same site for about 5 days before the incident and he had not raised any objection regarding there being any danger to his safety due to lack of safety equipments. There is nothing on record to suggest whether any safety equipment was ever demanded by PW4 and not provided by the accused.
h) Infact as per prosecution's own version, PW4 was a contract labourer. So, the prosecution fails to explain as to what compelled PW4 to continue to work for accused despite the premises being unsafe and appropriate safety equipment not being provided by the accused. PW4 could have easily refused to work for accused under such circumstances instead of risking his life. PW4 was under no compulsion to work for the accused but he appears to have voluntarily agreed to work for accused under his free will despite being fully aware of the working conditions at the premises.
i) Further the prosecution also fails to explain what exactly were the safety equipments which were required to be provided by the accused to his workers, to enable them to safely work in the premises in question under the prevailing physical state of premises, at that point of time as it was under repairs.
29. It is the prosecution's own version that PW4 fell from the stairs due to being FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 14 of 15 Date of Decision:16.10.2019 in rush and trying to do the work fast. Hence it appears that the fall of PW4 while coming down the stairs, was due to purely accidental slip. Accordingly, it is apparent that the prosecution has been unable to prove the alleged culpable negligence on the part of the accused in taking requisite safeguards, which resulted in injury to PW4 Anish. Hence the ingredients of Section 288 IPC have not been satisfied so as to make the accused liable under it. For the same reason, even though grievous injury has been caused to PW4, the accused cannot be held liable for having caused the same. So even offence punishable u/s Sec 338 IPC is not attracted in the present case.
30. In view of above observations and findings, the prosecution has been unable to prove its case against accused Ajay Bhalla. Accused is hence, acquitted from the offences punishable under Sections 288/338 IPC.
Ordered Accordingly. File be consigned to Record Room as per rules.
Announced in open court on Dated:16.10.2019 (ATUL KRISHNA AGRAWAL) MM07(West)/THC/DELHI FIR No.454/13 PS Tilak Nagar State Vs Ajay Bhalla Page 15 of 15 Date of Decision:16.10.2019