Delhi District Court
State vs Virender Pal Singh S/O Sh. Gurcharan ... on 22 October, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
Presided by: Sh. Nitesh Goel
State Vs Virender Pal Singh s/o Sh. Gurcharan Singh
FIR No. 781/15
PS Vikas Puri
U/S 288/338 IPC
Date of institution : 27.09.2016
Date of reserving : 14.10.2022
Date of pronouncement : 22.10.2022
JUDGMENT
a) C.C. Number 432546/16
b) Date of commission of offence 17.08.2015
c) Name of the complainant Smt Indu Nagpal
d) Name, parentage and address Virender Pal Singh s/o Sh.
of the accused Gurcharan Singh r/o H. no. C
538 NRI Omaxe City PNB
Bank Greater Noida U. P.
e) Offence complained of Section 288/338 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 22.10.2022.
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix of the present case is that on 17.08.2015 at about 5:30 pm at Flat No. 1 D(back side balcony), Navyug apartment, Vikas Puri within the jurisdiction of PS Vikas Puri while getting repair work done of the abovesaid bal- cony of the aforesaid flat accused knowingly omitted to take such order with the State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 1 balcony as was sufficient to guard against any probable danger to human life. Fur- ther, on the abovesaid date, time and place while repairing the back side balcony, complainant Smt. Indu Nagpal slipped on the balcony due to broken floor and re- ceived grievous injuries. Accused is alleged to have committed offence U/S 288/338 IPC.
2. Chargesheet was filed by the IO against accused and copy of the same was supplied to him as per mandate of u/S 207 Cr.P.C. Vide order dated 03.02.2017 accused Virender Pal Singh was discharged for offence u/s 288/338 IPC and to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined nine witnesses.
4. PW-1 Sh. Balbir Singh has deposed that in the year 2015, he was the President of RWA of the abovesaid apartment. Their Management company served notices to the resident of all the residents of above said apartment for repair/strengthening the balconies and roof top as the condition of the balconies were very deteriorated. The cost of repair was burdened by the owner of the flat. The flat No. 1D belongs to accused. He further deposed that the flat was given on rent to Dr Nagpal by accused with agreement. He further deposed that accused started the work of construction of balcony of his flat by himself and the contract was given to Sh. Sharafat Ali, contractor. The construction/repair work was started by the contractor with the consent of accused, (the consent letter is mark X) who did not give any advance payment as well as payment for the construction. As the accused V. P. Singh did not make the payment of construction, the construction work was stopped in between by the contractor. A letter given to the police by the management is Ex. PW1/A where in it is mentioned that the construction work was started by accused and RWA association was not linked and responsible for any construction/repair work of any flat of aforementioned apartment. The repair/con- struction work is still pending as accused did not pay the amount to the contractor State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 2 and contractor stopped the work. Circular dated 19.08.2015 for strengthening of balcony is mark X1 . Circular dated 20.5.2015 for strengthening the balcony with specifications and schedule of payment is mark X2. Witness correctly identifies the photographs of the spot. Same are Ex. PW 1/B (Colly) Witness was cross examined by Ld. LAC for the accused. He deposed that the contractor Sharaf Ali was hired by the RWA to carry out the repair work of the balcony work of the flat of the accused with his consent. He deposed that vide circular dated 19.08.2015 marked X1 the work of repairs was to start after 19.08.2015.
5. PW 2 HC Vinod Kumar has deposed that he joined the investigation. During investigation IO prepared site plan at the instance of complainant Ex. PW 2/A. He was cross examined by Ld. counsel for accused.
6. PW 3 Dr. Sham Sunder Nagpal is the husband of complainant. He deposed that his wife got slipped while watering the plan in balcony on 18.08.2015 due to uneven floor of balcony due to which she got fractured in both bones of her left hand. He correctly identified the photographs Ex. PW 1/B/ He was cross examined by Ld. counsel for accused.
7. PW 4 HC Satender has proved the copy of FIR Ex. PW 4/A ( OSR), endorsement on rukka Ex. PW 4/C and certificate u/s 65B of Indian Evidence Act regarding feeding the information of FIR in computer, same is Ex. PW 4/C. Witness was cross examined by ld defence counsel.
8. PW 5 Ms. Indu Nagpal deposed that she is Dr. by profession. She was residing at 1-D Navyug Adarsh Aparment Vikaspuri since 2001, as tenant. The owner of said premise is Virender Pal Singh. Prior to two months of August 2015 State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 3 accused had destructed the balcony of back side of flat. Grill was also removed from balcony. She further deposed that she do not know the date of incident however it was occurred in mid of the August 2015. She further deposed that she was watering the plants in morning time. In the meanwhile her leg got slipped due to which she fell down and she sustained fracture injury in her left hand. At that time, the surface of balcony was uneven. The reason of falling on floor was uneven surface due to which her leg got entangled. She was taken to DDU hospital by her husband. Later on police met her and recorded her statement. She further deposed that she had many time orally complaint to accused regarding uneven condition of surface of balcony but accused had not pay attention on her complaint. Statement to police is Ex. PW5/A. Witness correctly identified the accused.
She was cross examined by Ld defence counsel. She deposed that since she has settled all her disputed with accused now she do not have any grievance with accused. She deposed that she lodged the complaint against accused in anger. Even now she cannot tell who was at fault for causing of the said incident. She further deposed that she used to water the plants regularly from the month of June, 2015 till the date of incident. She do not know whether she made any complaint to accused regarding the uneven condition of balcony or that she had requested him to get it repaired. She do not know as to when the accused had come to her house to receive the rent. She do not know whether the balcony was demolished by the society members for the purpose of repairing. She do not know whether any contract regarding the demolition and repair of balcony of all flats in society. She do not know whether balconies of other flats were also demolished at the relevant time. She do not remember the exact date when she received the injuries. Although it was in the mid of August 2015. She do not know whether she made complaint to police on same day or later on. She do not remember whether any Civil Suit was filed by accused for vacating the said premises.
9. PW 6 Ram Kumar record clerk proved the signature of Dr G.V. Joshi on the MLC no. 7307/15 vide Ex. PW 6/A State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 4
10. PW 7 SI Satyawan Singh was the IO of the present case. He exhibited the rukka vide Ex. PW 7/A. The notice already on record was exhibited as Ex. PW 7/B. Witness identified the documents already on record marked as PW 7/A Colly. Witness also exhibited the arrest memo and personal search memo vide Ex. PW 7/C and Ex. PW 7/D. He deposed regarding the investigation conducted by him in the present.
He was cross examined by Ld. Counsel for accused.
11. PW 8 Dr Vineet Kumar stated that he does not have any role in preparation of MLC. He was posted as CMO in the DDU Hospital on 22.08.2015.
He was cross examined by Ld. Counsel for accused.
12. PW 9 Dr. Vineet Arora came on behalf of Dr. G. V. Joshi who prepared the MLC. He has identified the signature of Dr. G. V. Joshi on the MLC Ex. PW 6/A. He was cross examined by Ld. Counsel for accused.
13. No other witness has been examined by the prosecution. Prosecution evidence was closed.
14. Statement of accused was recorded u/S 313 Cr.P.C wherein all incrimi- nating evidence were put to him but he denied the entire evidence and pleaded that he is innocent and has been falsely implicated in this matter. However, accused did not opt to lead defence evidence and the matter was posted for final arguments.
15. I have heard the submissions of learned Assistant Public Prosecutor for State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 5 the State and Sh. Naveen Arya Ld. defence counsel and perused the record carefully.
16. Ld. APP for the State has submitted that the accused is liable to be convicted for the offence u/S 288/338 IPC on the basis of depositions made by various witnesses and hence prosecution has proved its case against the accused beyond reasonable doubt. Therefore, accused is liable to be convicted.
17. On the other hand, ld. defence counsel submits that accused is innocent and has been falsely implicated in this matter. He submits that no public person was made witness by the IO despite presence of public persons at and around the place of occurrence. He further submits that accused be acquitted as the prosecution has failed to prove its case against the accused beyond reasonable doubt.
18. I have given my considerable thoughts to the submissions made by ld. APP for the State and ld. Defence counsel. Keeping in view the material available on record.
19. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
20. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 6 presumed to be innocent till charges against him are proved beyond reasonable doubt.
In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377 wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
21. In the present matter the accused was charged u/s 288/338 IPC.
The essential ingredients of Section 288 IPC are :-
(1) The accused was pulling down or repairing any
building; and
(2) The accused omitted to take sufficient precaution to
guard against the probable danger to human life from
the fall of that building or any part thereof.
22. Let us come to see that whether the ingredients u/s 288 IPC is satisfied or not. From the first reading of bare provision of Section 288 IPC the intention of the legislature is inferred that Section 288 is only applicable when the accused is pulling or repairing any building, however in the present case the repairing work in the balcony was stopped by the accused, due to which no repairing or pulling down work on the building was taking place.
Secondly, the prosecution has failed to show as to which precaution the accused was supposed to take which he has failed to guard against the probable danger to the fall of the human life.
23. Thirdly, for the purpose of bringing the accused guilty u/s 288 IPC the State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 7 prosecution has to prove that the building has fallen due to the omission on the part of the accused to take sufficient precaution to guard against the probably danger to human life. In the present matter the building has not fallen rather the injury has been suffered by the victim due to the slip of the leg due to the uneven surface of the balcony.
Therefore, essential ingredients u/s 288 IPC are not satisfied.
24. Now lets come to the offence u/s 338 IPC. In the cross examination of PW 5 the victim has stated that she has settled all the disputes with the accused and she has further stated that she has lodged the complaint against the accused in anger. Perusal of the file reveals that the parties have entered into a settlement agreement vide order dated 15.04.2017, of mediation center Dwarka Courts, in which it has been stated that the matter had got settled between the parties.
25. Since, the offence u/s 338 IPC is compoundable in nature and the victim herself has stated in the cross examination that she has settled the dispute with the accused and lodged the complaint at that time in anger. Although there is a mediation agreement tagged in the file however the statement of the victim compounding the matter has not been placed on record before the court. But the absence of the compounding statement on record does not make it justifiable to convict the accused u/s 338 IPC despite the admission of the victim in cross examination that the matter has been settled.
26. The upshot of the above discussion is that ingredients u/s 288 IPC has not been satisfied and further on the basis of testimony of victim stating that she has settled the matter with the accused Virender Pal Singh, the accused is acquitted of the offence u/s 288/338 IPC.
27. Bail Bonds u/s 437A Cr. PC already on record.
State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 8
28. File be consigned to record room.
Announced in open Court on 22.10.2022 Nitesh Goel Metropolitan Magistrate-05 (South-West)-
22.10.2022 State Vs Virender Pal Singh FIR No. 781/15 PS Vikas Puri U/S 288/338 IPC 9