Delhi District Court
State vs . Rajendra Pal Singh on 3 December, 2019
IN THE COURT OF MS. RICHA SHARMA METROPOLITAN
MAGISTRATE ROHINI COURTS, DELHI
FIR No. 45/12
U/s 337/304A IPC
PS: BHALASWA DAIRY
State vs. Rajendra Pal Singh
Date of Institution of case:10.07.2014
Date of Judgment reserved: 03.12.2019
Date on which Judgment pronounced:03.12.2019
JUDGMENT
Unique ID no. : 5289076/16
Date of Commission : 19.03.2012
of offence
Name of the : HC Gyasuddin No. 284/NW
complainant
Name and address of : Rajender Pal Singh S/o Sh. Nathu Singh
the accused persons R/o H. No. 9, Sarai Peepal Thala, Adash
Nagar, Delhi.
Offence complained : 337/304A IPC
of
Plea of accused : Not guilty
Date of order : 03.12.2019
Final Order : Acquitted
BRIEF FACTS OF THE CASE:
1. The case of the prosecution shorn of unnecessary details
is that on 19.03.2012, at about 11:37 AM, at D Block, Gali No. 6, Near Bajrang Chowk, Shradhanand Colony, Bhalaswa Dairy, Delhi State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 1 of 27 within the jurisdiction of PS Bhalaswa Dairy accused omitted to take care in maintaining his house in a fit condition so as to avoid the danger to the public on his part and by omitting so negligently in the said manner, the same resulted into the death of Smt Kamlesh and thereby accused committed an offence punishable u/s 304A IPC.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
Notice
4. A prima facie case under Sections 304A IPC, was found to be made out against the accused. Notice was framed upon the accused accordingly, on dated 21.05.2015. The accused pleaded not guilty and claimed trial.
List of witnesses and documents proved
5. In order to prove its case, prosecution has examined State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 2 of 27 following witnesses and produced the following documents in its documentary evidence :
Sl PW No. Name Document proved Ex. No.
No.
1. PW1 Sh. Gaya Prasad
2. PW2 Sh. Lokesh Dead body of Ex.PW2/A
deceased
Handing over Ex, PW 2/B
memo of deceased
3. PW 7 Retd. SI Jai Identification of Ex.PW7/A
Bhagwan dead body of
deceased Kamlesh
identified by its
relatives
Inquest paper of
dead body of Ex. PW 7/B
deceased vide
memo
Arrest and
personal search of Ex. PW7/C
the accused vide and Ex.
memo PW7/D
Inspection report
of spot by GE, Ex. PW7/E
MCD
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 3 of 27
4. PW8 ASI Gyasuddin Tehrir prepared by Ex. PW8/A
ASI Gyasuddin
Site plan on the
date of incident Ex. PW8/B
Letter to MCD
Ex. PW8/C
Photographs taken
by ASI Gyasuddin Ex. D1 to D4
Katta
P1
5. PW 9 HC Narender Seizure memo of Ex. PW9/A
plastic bag
6. In order to prove its case prosecution examined the following witnesses:
7. PW1 Sh. Gaya Prasad deposed that the incident had not taken place in his presence as he was at his native village on that day. He came to know that one women had died due collapse of a house and its debris fell upon that women. He deposed that the house belong to accused. Witness correctly identified the accused in the court. He did not know the number of that house. PW1 further deposed that the said house was not in a damaged condition and he further could not tell. He can not tell on whose negligence said house collapsed. Police official met him when he came back from his village and made inquiry from him. Ld. APP for the State cross examined the witness as witness was resiling from his earlier State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 4 of 27 statement. He was also cross examined by Ld. Defence counsel.
8. PW2 Sh. Lokesh had deposed that on 26.03.2012 he went to mortuary of BJRM hospital and he identified the dead body of his mother vide memo Ex. PW2/A, bearing his signature at point A. After postmortem, dead body of his mother was handed over to his father vide memo Ex. PW2/B, bearing the signature of his father at point A. He was cross examined by Ld. Defence counsel.
9. PW3 Smt. Pushpa deposed that she does not remember the date, month or year of the alleged incident as she is illiterate but stated that on the fateful day in the morning she was inside her house and she heard the noise which appeared as if some vehicle had overturned. She immediately came out and saw that a part of house of accused had collapsed and one women came under the debris of the house. She did not know the number of that house. She deposed that the said house was not in damaged condition. She further could not tell on whose negligence the house collapsed. Police officials met her and made inquiry from her. Ld. APP for the State cross examined the witness as witness was resiling from her earlier statement. She was also cross examined by Ld. Defence counsel.
10. PW4 Smt. Kamla had deposed that she did not remember the date, month or year of the alleged incident as she is illiterate but on the fateful day she had gone to her native village. After coming back, she came to know that one lady came under the debris of the State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 5 of 27 collapsed house which was situated in front of her house. She did not know the number of that house. She also did not know as to who is the owner of the said house. She further deposed that the said house was not in damaged condition. She could not tell on whose negligence the house had collapsed. Police officials met her and made inquiry from her. Ld. APP for the State cross examined the witness as witness was resiling from her earlier statement. She was also cross examined by Ld. Defence counsel.
11. PW5 Shri Lakhan Singh deposed that he did not remember the date, month or year of the alleged incident as at that time, he had gone to his work. After coming back he came to know that one lady came under the debris of the collapsed house which was sitauatd at a distance of about five houses from his house. He did not know the number of that house. He did not know as to who was the owner of the said house. The said house was not in damaged condition as per PW5. He could tell on whose negligence the house collapsed. Police officials met him and made inquiry from him. Ld. APP for the State cross examined the witness was witness is resiling from his earlier statement. He was also cross examined by Ld. Defence counsel.
12. PW6 Geeta had deposed that on 19.03.2011, she was living in gali No. 5 in front of house which collapsed but the said house had not collapsedin her presence. She came to know about the incident from her children when she came to her home in the State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 6 of 27 evening that one lady had suffered injuries in the said incident. Police official came to her and recorded her name and address . She further deposed that her statement was not recorded by the police. Ld. APP for the State cross examined the witness as witness was resiling from her earlier statement. She was also cross examined by Ld. Defence counsel.
13. PW7 Retd. SI Jai Bhagwan had deposed that on 26.03.2012 she was poseted as SI at PS Bhalaswa Dairy. He alongwith HC Gyasuddin went to mortuary JNP hospital where dead body of deceased Kamlesh was identified by her relatives vide Ex. PW7/A, bearing his signature at point A. Thereafter, he prepared inquest papers of dead body of deceased vide memo Ex. PW7/B, bearing his signature at point A. Doctor conducted postmortem over the body of deceased. The dead body was handed over to the husband of the deceased Mohan vide memo already Ex. PW2/B, bearing his signature at point B. On 25.04.2012, he arrested and personally searched the accused vide memo Ex. PW7/C and Ex. PW7/D, bearing his signature at point A in the presence of HC Mukesh. Thereafter, accused was released on police bail on production of surety. He recorded statement of HC Mukesh. He pursued the letter sent to MCD by HC Gyasuddin and obtained the inspection report of spot by GE, MCD which is Ex. PW7/E, bearing his signature at point A. Thereafter, he was transferred to PS NSP and the investigation was marked to another IO. He was cross examined by Ld. Defence counsel.
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 7 of 27
14. PW8 ASI Gyasuddin had deposed that on 19.03.2012, he was posted as HC at PS Bhalaswa Dairy. On receipt of DD No. 29B, regarding falling of heave, he wet to spot i.e. Gali No. 6, DBlock, Shardhanand Colony, where beat Ct. Narender met him. At the spot debris of home was lying in the street and injured had been shifted to PCR Van. Thereafter, he alongwith Ct. Narender went to BJRM hopsital. He obtained MLC of injured Kamlesh who was declared unfit by the doctor. He further stated that he prepared tehrir on the basis of DD No. 29B which is Ex. PW8/A, bearing his signature at point A and sent Ct Narender to PS for registration of FIR. Thereafter,he came back to the spot. He made search of witnesses and seized some of the debris of heave and recorded the statement of 56 neighbours He further deposed that he made the search of the owner but he could not be found. He came back to the PS and deposited the case property in the malkhana. He further deposed that on the next date he visited house of accused Ravinder Pal Singh at Sari Pipal Thala. Witness correctly identified the accused in the court. Thereafter, he prepared the site plan on the date of incident Ex. PW8/B and got the photographs which is Ex. D1 to D4. Thereafter, he forwarded the information regarding the accident to SDM, MCD and STF in written. His letter sent to MCD as Ex. PW8/C. He further deposed that on 25.03.2012 injured had expired. The investigation was marked another IO on the death of injured. On 26.03.2012 he alongwith SI Jai Bhagwan went to Mortuary JNP hospital, where IO got the postmortem of the dead body and same State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 8 of 27 was handed over to his relative. Thereafter, case property i.e debris of heave in plastic katta with seal of GS was produced by MHCM. Witness correctly identified the case property. Katta is Ex. P1. PW 8 was duly cross examined by Ld. Defence counsel.
15. PW9 HC Narender had deposed that on 19.03.2012, he was posted as Ct in PS Bhalaswa Dairy. On that day, on receipt of copy Of DD No. 29B, he alongwith IO went to spot i.e. Gali No. 6, D Block, Bajrang Chowk, where they came to know that one woman was injured due to falling of heave. He came to know that injured had been taken to hospital by PCR van. Then, he alongwith IO went to hospital. IO obtained MLC of injured Kamlesh who was unfit for settlement. IO made endorsement on DD No. 29B and sent him to PS for registration of FIR. Thereafter, he went to spot and handed over copy of FIR and original rukka to IO. He further deposed that IO seized plastic bag vide memo Ex. PW9/A. He further deposed that IO recorded the statement of some public person and then they came back to PS. Photographs of the spot are Ex. D1 to D5. PW 9 was duly cross examined by Ld. Defence counsel.
16. PW10 was SI Mukesh, who had deposed that on 25.04.2012, he alongwith IO SI Jai Bhagwan joined the investigation in the present case. He further deposed that he alongwith IO reached at Sarai Peepal Thala, Adarsh Nagar, Delhi where IO enquired from the accused Rajnder Pal. IO arrested the accused vide arrest memo Ex. PW7/C and personal search memo Ex. PW7/D, both bearing his State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 9 of 27 signature at point B. Witness correctly identified the accused in the court. PW 10 was cross examined by Ld. Defence counsel.
17. Statement of accused Rajender Pal Singh was recorded u/s 294 Cr.P.C. on 04.05.2016, in which genuinty of GPA i.e. Ex. D1, copy of computerized FIR i.e. Ex. D2, PM report i.e. Ex. D3 and MLC Ex. D4 were admitted by accused.
18. Thereafter, prosecution evidence was closed vide order dated 23.08.2019.
Statement under section 313 Cr.PC
19. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused did not opt to lead evidence in his defence and accordingly the same was closed.
Arguments
20. On the basis of the above oral and documentary evidence on record, learned APP requested for conviction of the accused and severe punishment as per law.
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 10 of 27
21. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt as prosecution has as such failed to establish the rashness and negligence on part of the accused in the present case. Accordingly, he prayed for the acquittal of the accused.
22. Before delving into the merits of this material issue, it becomes necessary to understand the emote of the term criminal negligence as defined by the Hon'ble Supreme Court of India in Bala Chandra Vs. State of Maharashtra 1968 SC1319 "Criminal Negligence 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. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness". In deciding the question as to whether the accused was guilty of rash or negligent act within the scope of above sections, the court has to judge as to the amount of care and circumspection which a prudent and reasonable man is said to be having regard to all the circumstances of the case.
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 11 of 27
23. The Hon'ble Supreme Court of India in case titled as Kurban Hussein v. State of Maharashtra, AIR 1965, 1616 , has held as under: " To impose criminal liability U/s 304A IPC, it is necessary that the death should have been a direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of anothers negligence. It must be the cause causans; it is not enough that it may have been the cause sine qua non".
This view has been followed by various High Courts in India.
24. At this stage, court also deem it fit to state that the Hon'ble Supreme court of India in the case titled as Suleman Rehiman Mulani and another v. State of Maharashtra, AIR 1966 Supreme Court 829, has held as under:
7. "The principal question for decision is whether on the facts found, appellant 1 was rightly convicted U/S 304 A IPC. On the material on record, it is not possible to find out under what circumstances the accident took place. The High Court in its judgment specifically says that,' there are no witnesses whose evidence can establish rash and negligent driving on the part of accused No.1'.
25. As an add on to the above discussion, this court further deems it fit to discuss the findings made by the Hon'ble Supreme State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 12 of 27 Court of India in the case titled as Mohd. Aynuddin @ Miyam v. State of Andhra Pradesh, 7 SCC 72.
'5. What is the culpable negligence on the part of the bus driver in the above accident?' A passenger might fall down from a moving vehicle due to one of the following causes : it could be accidental, it could be due to negligence of the passenger himself:
it could be due to negligent taking of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rare side.
6. A driver, who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backwards.
7. It is wrong proposition that for any motor accident, negligence of the driver should be presumed. An accident of such a nature as would primafacie shows that it cannot be a counted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely, because a passenger fell down from the bus while boarding the bus, no presumption can be drawn against the driver of the bus."
26. In the light of above case laws and applying them to the facts of the present case, it becomes imperative to analyse the testimony of witnesses examined by the prosecution in the present case. At the outset, it is pertinent to mention that the identity of the State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 13 of 27 deceased is not disputed as PW2 Sh. Lokesh stated that he is the son of deceased Kamlesh and on 26.03.2012, he went to mortuary of BJRM Hospital and identified the dead body of his mother vide memo Ex.PW2/A, bearing his signatures at point A. He further deposed that after postmortem, dead body of his mother was handed over to his father vide memo Ex.PW2/B, bearing the signatures of his father, at point A. His father could not step into the witness as he had expired and the said fact was duly stated by PW2 in his deposition in the court.
28. The identity of the deceased is not disputed and the only material question which is now left to be examined by this court is that, if the death of deceased Smt. Kamlesh was caused as a result of rashness and negligence on part of the accused. It is imperative to mention at this stage that of all the witnesses examined by the prosecution in the present case, there is no eye witness to the alleged incident that took place. In the absence of any eye witness to the alleged incident, the burden upon the prosecution becomes all the more strong to establish the guilt of the accused beyond reasonable doubt. In order to ascertain whether the prosecution has been able to establish the guilt of the accused or not, it becomes apposite to anatomize the testimony of various witnesses examined by the prosecution. To begin with PW1 i.e. Sh. Gaya Prasad, categorically deposed that the incident had not taken place in his presence as he was at his native village on the fateful day and it was only later on that he came to know that one woman had died as one house had State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 14 of 27 collapsed and its debris fell upon her. Thus, from this very statement of PW1 it can be safely culled out that the deposition made by PW1 qua the said incident is nothing more than the hearsay evidence as neither has he seen the house collapsing in his presence nor has he seen the deceased coming under the debris of the fallen house . It is further material to mention that PW1 also deposed that he does not know the number of the house in question and further went on to say that the house was not in a damage condition. Another crucial aspect which needs to be paid heed to is that PW1 stated in his examinationinchief that he cannot tell on the basis of whose negligence the said house collapsed. It is further material to mention that PW1 was crossexamined by the Ld. APP for the State as the said witness was resiling from his earlier statement and upon said cross examination being conducted by Ld. APP for the State PW1, further stated that the house was not in a dilapidated condition. Ld. APP for the State also had put the statement of PW1 unrecorded during investigation to him and read over the same to the witness but witness outrightly stated that he had not made any such statement to the police officials. Thus, from the crossexamination of PW1 conducted by the Ld. APP for the State it can be inferred that PW1 outrightly negated that he made any statement marked as Mark A and read over to him, implying thereby that the deposition made by PW1 in the court has to be given importance as the witness has totally denied to making of any statement during investigation as the one read to him during his crossexamination. It is further imperative to mention that the PW1 was crossexamined by the Ld. State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 15 of 27 Defence Counsel and in his crossexamination he averred that the house in question was constructed after 45 years of the construction of his house and the latter was constructed in the year, 2002, implying thereby that as per PW1's version, the house in question was constructed somewhere in the year, 2007 by the previous owner. It is also material to mention that PW1 stated that no alteration/construction was made by the accused in the said house and further deposed that the house in question was fit for residence. He further stated that from looking at the condition of the house in question it cannot be said that any such incident could have taken place. PW1 further deposed that the accused used to regularly visit the house for looking after it. Another crucial aspect which need appreciation is that PW1 though stated in his crossexamination that there was a chajja in the said house but as he had never visited the house in question from the first floor so, he could not say about the exact location of the toilet at the first floor. He further stated that said toilet was not situated at the chajja. Thus, from the entire deposition of PW1 it can be safely deduced that the element of rashness and negligence on part of the accused cannot be imputed merely from the testimony of PW1 as:
firstly, he was not the eye witness to the incident; secondly, the entire deposition made by him regarding the alleged incident was a mere hearsay;
thirdly, he has not seen the house from inside so, he was not in a position to depose regarding any kind of illegal construction upon the chajja.
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 16 of 27
29. Apart from PW2 another witness examined by the prosecution is PW3 i.e. Smt. Pushpa. At the outset, it is pertinent to mention that even PW3 was not the eye witness to the said incident as when the said incident occurred she was inside her house and after hearing the noise she rushed out and subsequently saw that a woman had come under the debris of the house. It is further apropos to state that PW3 neither remembered the date, month, year of the incident nor did she remember the number of the house in question. She further deposed that the house was not in damaged condition and she further stated that she cannot depose as to on whose negligence the said house collapsed. Ld. APP for the State cross examined the said witness as she resiled from her statement and in her crossexamination her statement recorded during the investigation was read to her to which she declined making any such statement. It is further apposite to state that though PW3 stated in her crossexamination that there was on chajja in the said house but she denied regarding the construction of any toilet on the chajja projecting towards the street. In addition to this, PW3 deposed on the same lines as that of PW1 and totally negated any kind of construction and alteration being made by the accused in the said house. She further deposed that the house in question was fit for residential purposes and merely by looking at the house no one could infer that any such overt incident could have taken place with regard to the said house.
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 17 of 27
30. Another witness exmined by the prosecution was PW4 i.e. Smt. Kamla, who in her examinationinchief stated that she does not remember the date, month and year of the incident and further she was not the eye witness to the said incident and had gone to her native place and only after coming back from her village she was told about the said incident, implying thereby that the deposition made by PW4 regarding the said incident was merely an hearsay evidence. Further, PW4 was also crossexamined by Ld. APP for the State and in his crossexamination she stated that the house was not in a dilapidated condition and she further denied making any statement during investigation . PW4 further denied construction of any kind of toilet on the chajja projecting in the street. In her crossexamination conducted by the Ld. Defence Counsel, PW4 stated that the construction in the said house was done by the previous owner and that the house was fit for residential purposes.
31. In addition to this, another witness examined by the prosecution was PW5 i.e. Sh. Lakhan, who is again not the eye witness to the said incident and neither did he know as to who is the owner of the house in question nor did he remember the date, month, year of the incident or the number of the house in question. It is further apposite to state that PW5 in his crossexamination outrightly denied making any statement during the investigation and further denied the statement Mark D being read over to him during his crossexamination as being made by him. At the cost of brevity it is being stated that PW 5 also deposed on the same lines as that of State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 18 of 27 the earlier prosecution witnesses regarding no construction and alteration being made in the house in question by the accused and further deposed that the house was fit for residential purposes.
32. Another witness examined by the prosecution was PW6 i.e. Smt. Geeta, who categorically deposed that on 19.03.2012,when the said incident happened, she was not present at the spot and the house did not collapse in her presence as she had gone for work. She further deposed that when she returned her children informed her about the said incident. In addition to this she stated that no statement of her's was recorded by the police and even in her cross examination conducted by the Ld. APP for the State she stated that she does not know as to who is the owner of the said house and further stated that statement mark X being read over to her was never given by her to the IO. She further denied the construction of any toilet on the heave projected in the street. Apart from this PW6 further deposed in her crossexamination conducted by the Ld. Defence Counsel that the accused had purchased the said house around four months before the incident and that he used to come to said house regularly for taking care. In addition to this she further deposed that 10 days prior to the incident a major earthquake had taken place but nothing happened to the said house as the said house was properly constructed. Thus, from the testimony of PW6 also it can be deduced that nothing material is averred by her for the purpose of attributing any kind of rashness and negligence upon the accused.
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 19 of 27
33. Another crucial witness examined by the prosecution was PW8 i.e. ASI Gyasuddin, who deposed that on 19.03.2012, he obtained the MLC of injured Kamlesh and on that day he found no eye witness in the hospital. He further said that he made search of the witnesses at the spot and recorded the statement of 56 neighbours and thereafter, he came back to PS and deposited the case property in the malkhana. He further deposed that he had prepared the site plan on the date of incident which is Ex.PW8/B and had got the photographs clicked through his mobile which is Ex.D1 to Ex.D4. But perusal of the record shows that the site plan placed on record and exhibited as Ex.PW8/B depicts the condition of the house prior to the incident actually taking place and the said site plan does not pertain to the actual incident post its occurrence as neither does it show the dead body of the deceased nor does it show the fallen portion of the house . It is further imperative to mention that the site plan was not made by PW8 at the instance of the relative of complainant or any of the eye witnesses or the neighbours and this per se brings the authenticity of the site plan under scanner. It is further imperative to mention that though PW8 states in his examinationin chief that he seized some of the debris of the heave but the said debris was not sent for any sample testing despite it being seized for the purpose of identifying and evaluating the age of the building and the quality of the concrete material and bricks being used therein. It is further imperative to mention that PW8 states in his crossexamination that he reached the spot at 12:00 noon and State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 20 of 27 found public persons present there but despite public persons being present there, PW8 did not record the statements of the witnesses at that time and no plausible explanation for not doing the same is adduced by PW8. This per se lends credence to the deposition made by all the other independent public witnesses examined by the prosecution, who stated that they had not made or given any statement to the police as put to them during their crossexamination by Ld. APP for the State. It is further paramount to mention that PW8 states in his crossexamination that he had obtained the signatures of the witnesses on their statements but there is already a court observation on record during the crossexamination of PW8 to the effect that the statement of witnesses U/S 161 CrPC does not bear their signatures. It is further pellucid to state that PW8 had not written any letter to the MCD or to the concerned authorities for the purpose of assessing whether the house in question was authorised or unauthorised or if, it was in a dilapidated condition. Moreover, PW8 had not made any inquiry about the date of the construction of the house. It is also material to mention that though PW8 states in his crossexamination that he came to know from people that the house in question was more than 15 years old but neither has he recorded the statement of any witness testifying the said fact nor has any witness examined by the prosecution deposed on these lines. On the contrary the witnesses have stated that the accused has not made any alteration or construction in the said house. It is also pertinent to mention that PW8 states in his crossexamination that he had collected the documents regarding the purchase of the house by the State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 21 of 27 accused and as per same the date of purchase of the house in question was 03.11.2011, implying thereby that the accused had purchased the house only 34 months prior to the incident and in order to assess the actual construction of the house the IO i.e. PW8 had not served any notice upon the previous owner as he categorically stated that, " I had not issued any notice upon the previous owner of the house to know the actual date of construction of the said house".
34. Another material discrepancy that can be seen is with regard to the photograph placed on record as PW8 states that he got the photographs clicked by his mobile but PW9 i.e. HC Narender states in his crossexamination that the photographs of the spot were taken by the IO by calling one photographer and he further deposed that the photographer clicked 23 photographs after seizing of debris from the spot. This per se leads to a logical corollary that the photographs placed on record are disputed as neither 65 B certificate pertaining to the same is placed on record nor any independent photographer has been examined in light of the deposition made by PW9 to prove the said photographs. Further, bare perusal of the photographs shows that none of the photographs were taken from the roof in order to evaluate if at all, any projection or illegal construction was made on the chajja/ heave of the house. PW9 further stated in his crossexamination that the photographer did not click photographs from the roof of the house and all the photographs were taken while standing in the gali and in this scenario the factum of manipulation of the photographs cannot be negated. State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 22 of 27
35. Thus, on the basis of the above observations and findings, it can be safely deduced that ;
firstly, the prosecution has miserably failed to examine any eye witness to the alleged incident and all the witnesses examined are merely witnesses of hearsay evidences, as none of them have seen the incident actually taking place with their naked eye; secondly, the witnesses examined by the prosecution have outrightly negated the fact of their statements being recorded by the police during investigation and further this fact stands duly testified by the deposition made by PW8 in his crossexamination whereby he stated that he had obtained the signatures of the public witnesses on their statements recorded during investigation but the same is contrary to the record as no signatures were appended on the statement recorded U/S 161 CrPC.
thirdly, the prosecution has miserably failed to explain that why despite the IO reaching at the spot at 12:00 noon and the public witnesses being present there, their statements were not recorded and there at the relevant point of time;
fourthly, the prosecution case further stands punctured at the point that though the debris was seized vide seizure memo at the spot in presence of public witnesses but neither the seizure memo bears the signature of any of the public witnesses nor was the same sent to any of the forensic team for sample testing for the purpose of adjudging the age of the building or for that matter the quality of the material/ bricks used in the construction. Non obtaining the signature of the State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 23 of 27 present public witnesses on the seizure memo as well as non sending of the debris for sample testing also raises question mark with regard to the debris actually belonging to the collapsed building; fifthly, the photographs placed on record remained unproved as neither they are appended with 65 B certificate nor is the concerned photographer examined to prove the same;
sixthly, the photographs placed on record does not contain even a single photograph depicting the construction of any alleged toilet on the roof of the collapsed building in order to lend credence to the version and the case of the prosecution;
seventhly, no official from the MCD or any concerned authority has been examined to prove that the building in question was unfit for habitation and was falling within the ambit of dangerous building' as per the MCD rules to by laws;
eigthly, no ocular or documentary evidence is furnished by the prosecution to prove that the MCD had served notice regarding the eviction of the house in question on account of it being dangerous for human habitation or for that matter it being in dilapidated condition;
Ninethly, the prosecution has not examined the previous owner/ owners of the building to establish the actual year of construction or the age of the building.
Thus, on the basis of the above findings, in the considered opinion of this court , it is culled out that merely because building/ house belonged to a particular person/ owner ( accused in this case), this per se does not attribute the rashness and negligence on his part State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 24 of 27 as these elements aspects have not been cogently established by leading independent, fair, untainted and corroborative evidence by the prosecution.
36. Therefore, in the light of the above observations and findings, it can be categorically stated that of all the witnesses examined by the prosecution in the present case, there is no eye witness examined to throw light on the aspect of what exactly happened on the alleged day of the incident. Further, there are inter se glaring and material contradictions in the testimony of prosecution witnesses and the prosecution has miserably failed to discharge the burden placed upon it to establish the guilt of the accused beyond reasonable doubt. The elements of rashness and negligence on the part of the accused remains unproved. Moreover, it is a settled law that in a case of rash and negligent act, the duty of the prosecution does not end merely by proving that the accused was rash or negligent but what has to be cogently established is the fact that on account of the rashness and negligence on part of the accused, the alleged incident took place, resulting in consequent injury or death. Merely on suspicion, the culpability cannot be attributed upon the accused. It is paramount to mention that the requirement of Section 304A is that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of a person and the rash and negligent act of the accused. As State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 25 of 27 discussed above, there is no evidence in the present case to show that it was on account of the rash or negligent act of the accused that the death of the deceased took place. Moreover, it is a settled principle of criminal jurisprudence that, where two views are possible, one favouring the accused has to be adopted.
37. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
38. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 26 of 27 examined by prosecution.
39. Therefore in view of the aforesaid comprehensive discussion, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Rajinder Pal is acquitted for commission of the offences punishable U/S 337/304A IPC.
40. Previous Bail bond cancelled and surety discharged. Endorsement if any, be cancelled and documents if any, be returned, against acknowledgment after due verification. File be consigned to Record room after necessary compliance.
Digitally signedAnnounced in open Court RICHA by RICHA
SHARMA
SHARMA Date: 2019.12.04
on 03.12. 2019. 11:15:31 +0530
(RICHA SHARMA)
MM8(North)Rohini Courts:Delhi
State v. Rajendra Pal Singh FIR No. 298/18 PS Bhalswa Dairy Page No. 27 of 27