Delhi District Court
State vs . : Mohd. Julfan & Anr. on 15 July, 2016
IN THE COURT OF DR.JAGMINDER SINGH:
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Mohd. Julfan & Anr.
FIR No : 102/2013
U/s : 288/304-A IPC
P.S. : Dwarka South
JUDGEMENT
1. Sl. No. of the Case : 02405R-025370-2013
2. Date of commission of offence : 13.04.2013
3. Date of institution of the case : 06.09.2013
4. Name of the complainant : ASI Satbir Singh
5. Name of accused, parentage & : 1) Mohd. Julfan Khan
address S/o Mohd. Mumkim, R/o RZ-
G/0 Nanda Block, Mahavir
Enclave, Dabri, New Delhi
and 2) Mohd. Ahsaan
S/o Mohd. Islam,
R/o RZG10, Nanda Block,
Mahavir Enclave, Dabri,
New Delhi.
6. Offence complained off : u/s 288/304-A IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved: Not reserved
9. Final order : Acquitted
10. Date of final order : 15.07.2016
Brief statement of reasons for decision :-
1. In the present case allegations against both the accused persons are that on 13/04/2013, at about 09.30 AM, under Flat No.2, Subh Lakshmi Apartments, Plot No.13-B, Sector-6, Dwarka, they while working as Project Manager and Supervisor failed to provide appropriate support to the labour and to pay appropriate steps to secure their safety while certain Sariyas were being carried to 8th floor of the said apartment from the outside due to which a small wall broke down and some bricks fell down upon the head of deceased Sh. Virender and caused his death. Present case registered on the complaint made by ASI Satbir Singh on the basis of DD entry and after completion of the investigation, charge- sheet was filed against both the accused persons for the offence u/s 288/304-A IPC.
2. Both accused persons were summoned. Copy of charge sheet were supplied to them. On the basis of prima-facie evidence on record notice served upon the accused persons for offence punishable u/s 288/304-A/34 IPC to which they pleaded not guilty and claimed trial.
3. In order to substantiate the notice, prosecution has filed the list of 22 witnesses and examined 19 witnesses.
4. PW1 Sh. Nand Kishore stated that on 13/03/2013, he was working at Subh Lakshmi Apartments, Sector-6, Dwarka under the Thekedar/accused Julfan Khan where Iron Sariyas were shifted manually from ground floor to 8th floor with the help of many labourers who were present on each floor under the supervision of both accused persons. He (PW1) was on 3rd floor. He handed over Sariya to another labour Arvind who was at 4th floor. After that when he looked down he saw that labour Virender received injury on his head. He could not see as to how Virender received injury. He cannot say as because of whose negligence, Virender sustained injuries. Police inquired him but he cannot say whether they recorded his statement or not.
5. PW2 Sh. Babu Lal was also working as labour and at the time of incident he was at 2nd floor. He also stated identically as of PW1 regarding sustaining injury by labour Virender due to fallen of bricks from upper floor. He further stated that after the incident, he along with accused, Mohd. Ahsaan & one Ankur took the injured to the hospital. He further stated that he do not remember anything else.
6. PW3 Sh. Ankur stated that he was site engineer on the site at the time of incident. He stated that after the incident, he along with Gayaddin, Manoj & Lucky Chand took the injured to the hospital.
7. PW4 Sh.Ram Jung, PW5 Sh. Dharmender, PW7 Shree Prakash, PW8 Sh. Arvind, PW9 Sh. Rampal, PW13 Sh. Gayaddin, PW16 Sh. Om Parkash, PW17 Sh. Ganga Ram were also working as labour at the spot at the time of incident and they deposed identical version as deposed by PW1 & PW2.
8. PW6 Sh. Ram Kumar stated that he was working as labour at the site but he do not remember anything about the incident as he was on the backside of the building.
9. PW10 Sh. Surender Singh was Officiating President of Subh Lakshmi Apartments CGHS Managing Committee at the time of incident. He brought the record i.e. sanction of DDA, sanction of contractor, sub- performance notice, agreement between Subh Lakshmi CGHS and Hadico Construction, Minutes of AGM of Subh Lakshmi CGHS, appointment of contractor for construction, Map of working drawing. The photocopy of documents are Ex.PW10/B (Collectively).
10. PW11 Ct. Anil stated that on 13/04/2013, he along with crime team went to Subh Laxmi Apartments and took 9 photographs of the spot which are Ex.PW11/A1 to Ex.PW11/A9 and Negatives of the said photographs are Ex.PW11/B.
11. PW12 Sh. Santosh & PW14 Sh. Vijay Kumar identified the dead body of deceased Virender Singh at DDU Hospital as their brother-in-law (Saala) and brother respectively vide memo Ex.PW12/A & PW14/A respectively. After postmortem, dead body was handed over to them vide memo Ex.PW12/B.
12. PW15 Mohd. Israf is the Managing Director of M/s Hadiso Constructions Pvt. Ltd. stated that he came to know about incident from his Supervisor Ankur. He instructed Ankur to take the injured to nearest hospital. After some day, IO took copy of Master Roll, Appointment Letter of Supervisors, Memorandum of Article of Company, attendance register etc. The same were seized by IO vide memo Ex.PW15/A. He further stated that he do not know that exactly IO recorded his statement or not.
13. PW18 SI Khazan Singh stated that on 13/04/2013 he along with Ct. Anil Kumar, ASI Kulbhushan Bisht & Driver Naresh Kumar went to spot where ASI Satbir met them along with other staff. At that time some bricks & blood was lying on the ground floor and deceased was already taken to hospital. Ct. Anil clicked the photographs of the spot. He inspected the spot and prepared report Ex.PW18/A.
14. PW19 ASI Bhagwan Das stated that o n 13.04.2013, at about 01.30 pm, he got a call from DDU Hospital regarding a person, who had fallen from building in Sector-6, Dwarka and he reached at DDU Hospital at about 02.00 pm. He gave an application Ex.PW19/A to doctor on duty for taking statement of injured Virender. The doctor wrote on application that the patient had expired on 12.20 pm. He again said, it was 12.40 pm. Ankur had got admitted Virender in the hospital. At around 04.00 pm, ASI Satbir Singh came to hospital as further investigation was marked to him and he told to ASI Satbir Singh about all circumstances and handed over the application Ex.PW19/A. He along with ASI Satbir Singh, tried to find out the family members, particulars of accused but they could not find out. They reached at the spot for further investigation, where they found some bricks, a broken yellow helmet and blood. At around 07.05 pm, ASI Satbir Singh prepared Rukka Ex.PW19/B and got the FIR registered through him. ASI Satbir Singh seized the broken bricks, the broken yellow helmet, vide seizure memo Ex.PW2/B. The blood sample was also taken into two plastic containers vide memo Ex.PW19/C. They returned at PS and deposited the case property in Malkhana. On 14.04.2013, they went to office of construction company, whose proprietor was Mr. Ashraf. ASI Satbir Singh took photocopy of all relevant documents and seized the same vide memo Ex.PW15/A. On the next day, they went to DDU Hospital and got conducted the postmortem of the deceased and also seized the blood sample of the deceased vide memo Ex.PW19/D. He (PW19) along with ASI Satbir went to spot in Subh Laxmi Apartments. Where they met with Retired Col. Surender Singh. ASI Satbir Singh enquired Retired Col. Surender Singh, who presented some documents, which were seized by ASI Satbir Singh vide seizure memo Ex.PW10/A. Retired Col. Surender Singh called accused Mr. Zulfan and Ehsan, who were the supervisors of Construction Company. ASI Satbir interrogated and arrested and personally searched both persons vide arrest memos Ex.PW2/C, Ex.PW2/D and Ex.PW2/E, Ex.PW2/F respectively. Both were released on bail. He along with ASI Satbir returned at PS.
15. No other PW was examined. Both accused persons admitted the MLR No.9007 Ex.C2, the postmortem report Ex.C3 vide their separate statement. Thereafter, PE closed. Statement of both accused persons recorded under Section 281 Cr.P.C. in which they denied all the allegations leveled against them. Accused persons had not opted for DE. Thereafter, final arguments were heard.
16. I have heard Ld. APP for State and Ld. counsel for accused persons and perused the record carefully. Ld. APP for State argued that the prosecution had proved the case beyond reasonable doubts against the accused persons and they are liable to be convicted and for maximum punishment. He further stated that the public witnesses deliberately not supported the prosecution case but accused persons are the actual culprit. On the other hand Ld. counsel for accused persons stated that no any offence was committed by any of the accused. He stated that accused were not responsible in any manner for the alleged incident. No any negligence can be attributed to the accused persons and the said incident was not occurred because of their fault. Statements of the witnesses are contradictory. None of the alleged eye witness supported the prosecution case. Accused are implicated falsely in this case by the police. Accused are facing the trial of this false case since last about 03 years, therefore, they are liable to be acquitted.
17. In this matter, the allegations against the accused persons are that they omitted to take proper care and caution at the site being Supervisor and Manager of the constructing site and because of their negligence, the brick from a small wall fell down from upper floor and hit upon the head of the deceased. To prove its case, prosecution produced 11 eye witnesses of the incident who were also working as labour where the incident occurred who are examined as PW1, PW2, PW4, PW5, PW6, PW7, PW8, PW9, PW13, PW16 & PW17. However, during their examination before the Court, none of them supported the prosecution story and turned hostile. All these witnesses did not state in their whole statement anything incriminating against the accused persons. During cross-examination they denied the suggestion given by Ld. APP that during construction work, the accused persons had not taken any precautions or not provided any safety measures to the labours.
18. Only one witness i.e. PW16 during his cross-examination by Ld.APP admitted the fact mentioned in his statement u/s 161 Cr.P.C. that some of his friends, neighbour told to Supervisor/Accused Ahsan that the iron Saria should be shifted to 9 th floor through stair or lift as the manner by which the said Saria was shifted was dangerous, but he refused and instructed them to shift the Saria to the abovesaid manner. However, during cross-examination by Ld.Defence Counsel, he stated that he came to know about the incident after reaching at ground floor from 7 th floor where he was working. He further stated that he did not see any substance or material fallen from 5 th floor. In his chief-examination also he stated that he heard a noise and thereafter came down and saw the deceased lying on the ground after the happening of the incident. Therefore, statement of PW16 suggested that he is not eye witness of the event or the cause because of which the incident occurred and the manner with which the alleged brick fell down and hit upon the head of the deceased. The other eye witnesses denied the suggestion that they had told to their supervisor that the manner by which iron Sarias were taken to 8th floor was risky and could harm to any labour.
19. There is no any other witness produced by the prosecution who can narrate the manner by which the accident occurred.
20. All other examined witnesses are only formal procedural witnesses. They are neither eye witnesses nor their evidence is sufficient to link the happening of the incident with any negligence or omission on the part of accused persons. There is no any scientific or circumstantial evidence of such a nature by which it can be ascertained that the incident in question was occurred only because of negligence or any kind of omission on the part of accused persons. The medical evidence are sufficient to prove the injuries sustained by the deceased and cause of death but are not sufficient to link the said injuries with the rashness or negligence of the accused persons.
21. It is held by Hon'ble High Court of Delhi in State Vs. Dharmender Singh Mehta and anr. 2012 V AD (Delhi) 108 that "it is now very well established that in all criminal cases, the prosecution has to establish the guilt of the accused beyond reasonable doubt through unimpeachable evidence".
22. It is also held by Hon'ble High Court of Delhi in Abdul Subhan Vs. State (NCT of Delhi) 133 (2006) DLT 562 that in the absence of any material record or any statutory exception, criminality of the accused cannot be presumed.
23. In view of the aforesaid discussion, Court comes at the conclusion that the chain of evidence produced by the prosecution against the accused is not complete due to which prosecution has failed to prove the essential ingredients of the offence alleged against both the accused persons beyond reasonable doubt. Benefit of doubt goes to accused persons as per principal of criminal justice. Therefore, both accused persons namely Mohd. Julfan Khan S/o Mohd. Muqeen & Mohd. Ahsaan S/o Mohd. Islam stands acquitted of the offence punishable u/s 288/304-A/34 IPC in present case FIR No. 102/2013, PS: Dwarka South.
24. Accused persons are directed to furnish bail bond and surety bond under Section 437-A Cr.P.C. and are also directed to furnish latest passport size photographs of their as well as of their surety along with their latest residential proof.
Announced in open court on 15.07.2016 (Dr. Jagminder Singh) Metropolitan Magistrate-04/ Dwarka Delhi/15/07/2016 Note: This judgment contains Eleven (11) pages and having my signature on each page.
(Dr. Jagminder Singh) Metropolitan Magistrate-04/ Dwarka Delhi/15/07/2016