Delhi District Court
State vs Parveen Kumar .......... Accused No on 29 March, 2016
IN THE COURT OF SH. ARVIND KUMAR,
ADDL. SESSIONS JUDGE-01:(CENTRAL)/THC:DELHI.
SC No. 48/12, 75/14 & 126/15
ID No.: 02401R0277362012, 02401R0083512014 &
02401R0718582015
FIR No. 60/12
PS : Prasad Nagar
U/S.: 323/325/308/304/34 IPC
State
Versus
1. Parveen Kumar .......... Accused No. 1
2. Rama Nand .......... Accused No. 2
3. Prakash Chand Arya .......... Accused No. 3
4. Dinesh Thekedar @ Dev Raj .......... Accused No. 4
(Declared PO vide order dt. 10.02.2014)
(29.03.2016)
(Order on the point of Charge)
Heard counsels for the parties on the point of charge and
perused the material of record. Before dealing with the contentions of the
counsels for the parties it will be appropriate to set out the brief facts.
(1) Briefly, stating prosecution case is that accused Rama Nand
is the owner of the plot measuring 15 sq yards bearing No. 16/1109, E
Tank Road, Karol Bagh, Delhi whereas accused Parveen Bansal was a
builder and brother-in-law (sala) of accused Rama Nand. It is alleged that
SC No. 48/12, 75/14 & 126/15 Page no. 1 of 11
accused Parveen Bansal had taken a contract from accused Rama Nand to
construct the building in question on the said plot under his supervision.
During investigation, it was further revealed that accused Parveen Bansal
had given the contract of labour to one Dinesh @ Dev Raj contractor at the
rate of Rs. 150 sq. ft. Accused Dinesh @ Dev Raj is absconding. However,
the said building, which was under construction, had collapsed on March
31, 2012 and four labours died and other three labours sustained injuries
while they were sleeping in the said building. On checking the spot,
investigating officer noticed that there was moisture in the lanter and
basement had also been dug. Investigating officer filed the charge-sheet
U/s 323/325/308/304/34 IPC against both the accused persons alleging that
they were raising construction in haste, without permission and sanction
plan, there was no beam to support the lanter and they were using inferior
quality of material in raising the construction and they had not made
separate arrangement for the workers to stay in night. The IO conducted
further investigation pursuant to the order of Sh. Naveen Gupta dated
07.06.2012 and the supplementary charge-sheet U/s
323/325/304/308/34/120B & 201/218/466/193/120B IPC is filed against
accused Prakash Chand Arya, JE (B)/KBZ, as he failed to take action
against the unauthorized construction even after receipt of written
information from local police of Prasad Nagar Police Station.
(2) The FSL report shows that the mixture used in the lanter was
in the ratio of 1:29:20 i.e. one portion of cement like material 29 portion of
sand and 20 portion of coarse material. Similarly, material used in the pillar
was in the ratio of 1:26:22 i.e. one portion of cement like material, 26
portion of sand and 22 portion of coarse material. Report dated 17.04.2013
of SHRIRAM INSTITUTE FOR INDUSTRIAL RESEARCH revealed that
ratio by volume of concrete mixture of column is 1:2.0:2.5 while the ratio by
volume of concrete mixture of beam is 1:3.0:4.0. and the inadequate
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Reinforcement in the columns and Beams of the building has lead to the
collapse of the buildings. Further Dr. Shashank Bisnoi, Associate Professor,
IIT, Delhi opined that main causes of the collapse of the building were, the
inadequate structural design and insufficient strength of concrete used.
Thereafter, opinion was also sought from Sh. Naresh Kumar, MD, M/s
Sheltera Consultant Pvt. Ltd., who vide his report received on 09.07.2013
opined that inadequate reinforcement in the columns and beams of the
building has led to the collapse of the building.
(3) It is further alleged that local police of PS Prasad Nagar had
lodged a complaint with MCD control room on 09.03.2012 regarding
aforesaid unauthorized construction and another complaint was lodged on
10.03.2012 with LG and intimation was also given in writing to the Deputy
Commissioner of MCD, Karol Bagh Zone, Delhi vide letter dated
13.03.2012. It is also alleged that SHO Prasad Nagar gave a complaint on
14.03.2012 to Deputy Commissioner, Karol Bagh Zone regarding the said
unauthorized construction and the said complaint was marked to Executive
Engineer (B) on 15.03.2012 and was further marked to AE (B) on
19.03.2012 and subsequently the said complaint was marked to JE (B) on
21.03.2012.
(4) It is further alleged that as per different guidelines and
instructions given in office order no.D/458/Addl.CM (E)/2001 dated
04.07.2001 and office order no.D/476/Addl.PM (E)/2001 dated 20.08.2001,
it was the duty of the Junior Engineer to check the unauthorized
construction, to inspect the site, scrutinize the plan, compare the building
with the sanctioned plan and to submit its report to AE within 15 days, to
calculate the penalty leviable, if any. It is further alleged that JE Prakash
Chand Arya was responsible for taking prompt action against unauthorized
construction at his own in accordance with sec 343 & 344 DMC but he
SC No. 48/12, 75/14 & 126/15 Page no. 3 of 11
failed to take any action to stop the unauthorized construction on plot No.
16/1109-E, Khalsa Nagar, Karol Bagh being carried out by the accused
Praveen Kumar Bansal and others, even after receipt of written intimation
from local police of PS Prasad Nagar, Delhi and from the office of Hon'ble
LG/Delhi, resulting in collapse of under construction building in the
intervening night of 30/31 March-2012 in which four persons died and
several others sustained injuries including grievous injuries.
(5) Ld. Counsel for accused Rama Nand and Praveen contended
that no offence is made out against the accused persons as they had no
knowledge that the said construction would collapse and result into the
death of the labourers nor the accused had intention to cause death. Ld.
Counsel has further contended that the building was being constructed by
co-accused Dinesh Thekedar, who was responsible for use of substandard
material and defective designing which led to the said incident. It is further
contended by Ld. Counsel for accused persons that merely because the
accused did not get sanction plan, will not make them liable for the offence
under section 304/325/323/308 IPC.
(6) Ld. Counsel for accused Prakash Chand Arya submitted that
no charges are made out against the accused as there has been no lapse
on the part of the accused and he has been made scapegoat by the higher
officials in order to save their skin. Ld. Counsel for accused submitted that
the accused came to know about the aforesaid illegal construction on
21.03.2012 and he went to serve the notice on 30.03.2012 and the incident
had occurred later on.
(7) The law is well settled that while framing charges, the Court is
required to evaluate materials and documents on record to decide whether
facts emerging therefrom, taken on their face value would disclose
SC No. 48/12, 75/14 & 126/15 Page no. 4 of 11
existence of ingredients constituting the alleged offence. At this stage it is
not required to delve deep into the probative value/intrinsic worth of the
materials on record. What is to be seen by the Court is whether there is a
ground for presuming that the accused has committed the offence. If there
is a grave suspicion against the accused persons, the Court must frame
charges against them.
(8) Now the first question arises whether under the facts and
circumstances 304 II IPC is attracted. Here it will be relevant to reiterate the
observations made by Hon'ble High Court of Delhi in the judgment Baldev
Raj Kapur v. State. Hon'ble High Court of Delhi observed:-
10. "The trial Court went wrong in
interpreting the provisions contained in Sections
299 and 300, IPC. Section 299, IPC defines
culpable homicide which may amount to murder
within the meaning of Section 300, IPC or may
amount to culpable homicide not amounting to
murder inviting the penal provisions of Section
304, IPC. All murders are culpable homicide but it
is not vice-versa as culpable homicide in the
scheme of the Penal Code is genus and murder is
its specie. Therefore, culpable homicide, in the
absence of special characteristics of murder
tantamounts to culpable homicide not amounting
to murder. In this case, the trial Court has taken
cognizance or culpable homicide based on
presumptive knowledge of the petitioner,
punishable under Part (II) of Section 304, IPC.
11. Under section 304 Part II of IPC the
degree of knowledge required is, knowledge of the
likelihood of death. To make out a case against an
accused of culpable homicide under Section 304
Part II of IPC, the prosecution has to show prima
facie that the act complained of was done with the
knowledge, with the awarness of the accused
about the consequence of death or grievous injury
of such kind as would result in death. In the crucial
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aspect, therefore, the state of mind i.e. Intention or
knowledge of the consequence, proof of such
intention or knowledge has to be of high order and
all other hypothesis of innocence of accused have
to be ruled out. Direct nexus between the death of
a person and the act of the accused is essential to
attract the provisions of Section 304 Part II, IPC.
12. The material placed on record and
relied upon before the trial Court by the
prosecution for framing a charge under Section
304 Part II, IPC, as discussed above, in my view
cannot support such a charge unless it indicated
prima facie that on that fateful day when the
building collapsed it was being constructed under
the direct supervision of the petitioner or on his
instructions and it was within the knowledge of the
petitioner that such construction was likely to
cause death of human-beings.
13. It is not the case of the prosecution that
petitioner had inflicted any injuries on the person
of the deceased labourers or demolished the
building knowing it well that it was likely to cause
the death of the labourers on whom the debris
might fall. The knowledge as inferred by the trial
Court while proceeding against the petitioner for
offences under Section 304 Part II of IPC and
Section 308, IPC is derived from the petitioner
being the owner and not on the basis of any
evidence available on the record to indicate that
petitioner had the knowledge that by doing an act
of raising a particular construction in the building,
he was likely to cause death of the manson and
other labourers working therein or, such
construction likely to cause injuries dangerous in
nature on their persons, attracting the provisions
of Sections 304/308, IPC. To attract the provisions
of Sections 304 Part II/308, IPC, presence of the
petitioner and his direct nexus with the act of
causing death of six labourers and causing injuries
on the person of eight labourers is required to be
shown.
14. An offence of the like nature, at the
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best can be termed as rash and negligent act on
the part of the contractor who was getting the
building constructed, by employing the deceased
persons, injured persons and other labourers at
the relevant time when work of stones, electricity,
sanitary and construction work was going on."
(9) It is clear from the aforesaid judgment that to bring the
particular act within the ambit of section 304, part-II, the prosecution has to
show prima facie that the act complained of was done with the knowledge
that such act would result in death and the knowledge should be of high
degree and all the other hypothesis of innocence of the accused has to be
ruled out and the direct nexus of the death of persons and the act of the
accused is necessary to attract the provisions of S. 304 part-II.
(10) There is nothing on record to show that it was within the
knowledge of the aforesaid accused persons that such construction was
likely to cause death of human being. It cannot be said that accused
persons were having knowledge that by raising of the construction on the
aforesaid site, they were likely to cause death of Masons and labourers
working therein or such constructions is likely to cause such injury to the
resulting in death of said person. There is also nothing to point out that any
of the accused had intention or knowledge that by there act death would be
caused. There is no direct nexus between the act of the accused persons
and the death of the persons to attract Section 304 IPC. Therefore, it is
clear that accused persons are not liable to be charged U/s 304 IPC. There
is also nothing on record to suggest that accused had intention to cause
bodily injury to any of those labourers and masons. In view of the aforesaid
discussions, I am of the opinion that section 323/325/308/34 IPC are also
not attracted in the present case and accused are not liable to be charged
for the offences punishable of U/s 323/325/308/34 IPC against the accused
persons.
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(11) Having observed that section 304/325/323/308/34 IPC are not
attracted under the facts and circumstances of present case, the next point
to be considered is whether charges can be framed under section
304A/337/338 IPC against the accused persons.
(12) It is revealed from material on record that accused Parveen
Bansal used to visit the spot daily to supervise the construction work, while
co-accused Rama Nand used to visit his under construction house once or
twice in a week to check the progress of the work/construction. It is further
alleged that accused Praveen Bansal was not technically competent to
carry out/supervise construction work and was constructing a multistoried
building. It is alleged that both these accused did not take due precautions
or proper building material and was in hurry to finish the construction which
was being carried out by him illegally, without any sanctioned plan or
permission from the authority concerned. He was objected/suggested
several time by the neighbours in this regard. It is clear that aforesaid
persons were getting the construction done without sanction plan and the
accused no.1 and 2 were visiting the site regularly, they must have been
aware that the material used in the said construction was of very
substandard quality and designing of the house was defective. Therefore
under the facts and circumstances accused Praveen Bansal and
Ramanand are liable to be charged under section 304A IPC as well as
under section 337/338/34 IPC.
(13) In the judgment State v. Rajesh Gupta @ Titu Hon'ble High
Court of Delhi observed that:-
9. "Suffice would it be to state that the
municipal building by-laws require a municipal
sanction to be obtained and the building to be
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constructed under the supervision of an architect.
Law requires a structural consultant/ engineer to
be associated with reference to the working
drawings pertaining to the structural loads.
Admittedly, the respondent had nothing of that
sort of way to him. The principle of resipsa loquitur is attracted on the facts of the instant case."
10. Under the circumstances we hold that the respondent is guilty of the offence punishable under Section 304-A IPC i.e. Of being rash and negligent."
(14) Now turning to the last question, whether Prakash Chand Arya is liable to be charged under section 304A/337/338 IPC. It is well settled that to bring a particular act within the ambit of section 304A IPC there should be criminal negligence and death should be the direct result of the rash and negligent act of the accused. The death of the person must be the direct or proximate result of the act. There must be direct nexus between the death of the persons and rash and negligent act of the accused.
(15) Although as per the allegations, the accused Prakash Chand Arya was aware of the unauthorised construction being carried on the premises but it cannot be said that the accused Prakash Chand Arya was having knowledge that the material used in the said construction was of substandard quality and the designing of the house was defective or that there was dangerous construction at the premises and the masons and labourers used to sleep under the roof of the said house. It is also not the case of the prosecution that the building was constructed under the supervision of the said accused. No doubt it was the duty of the accused Prakash Chand Arya to book the property after being informed that illegal construction was going on and the said accused failed to perform his duty, but same cannot be termed as rash and negligent act on the part of the SC No. 48/12, 75/14 & 126/15 Page no. 9 of 11 said accused to bring it within the ambit of section 304A/337/338 IPC.
(16) Further allegations against the accused Prakash Chand Arya are that certain over writings, obliterations and cutting in the dispatch register on 29.03.2012 and 30.03.2012, were apparently made by accused with a view to create defence. There is no material on record to show that these over writings, cuttings and obliterations were done by accused Prakash Chand Arya in his hand writing. A letter dt. 30.03.2012 bearing No. D/A(B)/KBZ/2012/880 (against dispatch no. 880) was written by Assistant Engineer (Building), Karol Bagh of SHO PS Prasad Nagar on 30.03.2012, received in Police station on 02.02.2012. The accused Prakash Chand Arya is not the author of the said letter. Ld. Addl. PP for the State failed to explain how these cuttings, obliterations and over writing would help the accused Prakash Chand Arya.
Charge-sheet has been filed against accused Prakash Chand Ayra adding sections 201/193/466/218/120B IPC without there being any material on record but only on the presumption that cuttings, obliterations and over writings were made by the accused Prakash Chand Arya. It is also not clear from the charge-sheet who conspired with accused Prakash Chand Arya to commit the offence punishable under aforesaid sections. Charge-sheet is totally silent on these points. In the absence of any evidence to prima facie show that aforesaid offence has been committed by the accused Prakash Chand Arya, the accused is not liable to be charged for the offences punishable U/s 201/193/466/218/120B IPC.
In view of the aforesaid observations, the accused Prakash Chand Arya is discharged.
(17) It has already been observed that there is sufficient material on record to make out a charge U/s 304A/337/338/34 IPC against the accused Rama Nand and accused Praveen Bansal.
SC No. 48/12, 75/14 & 126/15 Page no. 10 of 11 (18) The offence punishable U/s 304A/337/338/34 IPC is triable by
Ld. MM. Hence, matter be sent back to Ld. CMM for assigning the same to appropriate Court.
Announced in the open Court [ARVIND KUMAR ]
on this 29thof March, 2016 Additional Session Judge-01
Central/THC/Delhi
SC No. 48/12, 75/14 & 126/15 Page no. 11 of 11
Item No. 03, 04 & 05
SC No. 48/12, SC No. 75/14 & SC No. 126/15
29.03.2016
Present: Sh. R. K Tanwar, Addl. PP for the State.
All accused are in person on bail except accused Dinesh Thekerdar, who is PO vide order dt. 10.04.2014.
Sh. Md. Saleem, Advocate, counsel for accused Prakash Chand Arya.
Vide separate order passed on the point of charge, accused Prakash Chand Arya is discharged.
Charge U/s 304A/337/338/34 IPC are made out against the accused Rama Nand and accused Praveen Bansal.
The offence punishable U/s 304A/337/338/34 IPC is triable by Ld. MM. Hence, matter be sent back to the Court of Ld. CMM, Central for assigning the same to appropriate Court.
Accused persons are directed to appear before the Court of Ld. CMM, Central on 04.04.2016 at 2 PM.
Ahlmad is directed to send the complete file to the Court of Ld. CMM, Central well in advance.
( ARVIND KUMAR )
Addl. Sessions Judge -01
Central, Delhi/29.03.2016/pt
SC No. 48/12, 75/14 & 126/15 Page no. 12 of 11