Delhi District Court
State vs . Anil Kumar Dabas on 22 December, 2011
State vs. Anil Kumar Dabas
IN THE COURT OF SH DHARMENDER RANA
Metropolitan Magistrate, West, Delhi
State Vs. Anil Kumar Dabas
FIR N0. : 441/95
U/S : 336/337/304A IPC
PS : Rajouri Garden
J U D G M E N T ;
a) Sl. No. of the case : 1471/2
b) Date of commission of offence: 03.07.1995
c) Date of institution of the case : 18.12.1995
d) Name of the complainant : Sh. Ramesh Kumar
e) Name & address of the : Anil Kumar Dabas
accused S/o Sh. Ramesh Chand Dabas
R/o Village Madanpur,
Delhi.
f) Offence complained off : 336/337/304A IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 28.11.2011
i) Final order : Convicted
j) Date of Judgment : 09.12.2011
FIR No. 441/95 1
State vs. Anil Kumar Dabas
BRIEF STATEMENT OF REASONS FOR DECISION:
1 "The case at hand immediately brings into mind two stanzas
(14 and 18) of the eighth chapter of Manu Samhita dealing with role of
witnesses. They read as follows:
Stanza 14
"Jatro dharmo hyadharmena
Satyam Jatranrutenacha
Hanyate Prekshyamanam
Hatastrata sabhasadah"
(Where in the presence of judges "dharma" is overcome by "adharma"
and "truth" by "unfounded falsehood," at that place they (the judges)
are destroyed by sin.)
Stanza 18
"Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
Pado rajanmruchhati"
(In the adharma flowing from wrong decision in a court of law, one
fourth each is attributed to the person committing the adharma,
witness, the judges and the ruler)."
( Hon'ble Justice Sh.Arijit Pasayat, in the matter of Zahira
FIR No. 441/95 2
State vs. Anil Kumar Dabas
Habibullah Sheikh; (5) vs State of Gujarat (2006) 3 S.C.C.
374 :MANU/SC/1344/2006)
2 Truth and Justice are the two most reverent values
apotheosized by Mankind since time immemorial. Law acts as a
conjunction between the two aforementioned venerable streams of
human values. However, in a criminal trial there are situations when
Truth seems to be obscure and Justice appears to be obfuscated
under the mist of chicanery and mendacity. The pensive reiteration
from the scriptures by the Hon'ble Apex Court in the matter of
Zaheera Sheikh (supra) is to remind the courts of their sacrosanct
duty to purge the sublime values and vindicate the triumvirate of
Truth ,Law and Justice.
3 The case at hand is a sordid saga of inscrutable indolence
of the authorities, nihilistic quiescence of the victims yet intensely
eloquent silence of the circumstances.
4 Succinctly stated: Complainant Ramesh (PW7) was
employed as a labourer along with his fellow labourers in the
construction of a Rain Basera (Night Shelter) in front of Rajdhani
College; Delhi. On 03.07.1995, at about 04:0004:15 p.m., he along
with one Munna (deceased), Santosh, Pooran and a few other
labourers was engaged in laying Tukdiyan ( stone slabs) over the roof
FIR No. 441/95 3
State vs. Anil Kumar Dabas
of the aforementioned Rain Basera, under the supervision of accused
Anil Dabas. As many as 14 stone slabs were already laid and Munna
(deceased), Santosh, Pooran were busy arranging them. Upon the
directions of accused Anil dabas more bricks and material (Malba)
was laid over the sheets. Accused was cautioned not to add any
further weight as the stone slabs/roof was susceptible to collapse.
However,accused paid no heed to the warnings and kept on adding
further weight upon the roof and consequently the Tukdiyan ( stone
slabs) collapsed and Munna, Santosh and pooran were injured.
Complainant Ramesh escaped with minor scratches. They were taken
to ESI Hospital where the poor fellow Munna succumbed to injuries
and Santosh and Pooran sustained injuries.
On the basis of the complaint Ex.PW7/A, F.I.R. No.441/95
was registered with Police Station Rajouri Garden and investigation
was assigned to S.I.Ram Chander (PW10).
5 Upon completion of investigation charge sheet U/s 173
Cr.P.C. was filed on behalf of the IO and the accused was
consequently summoned. A formal notice for the offence U/s
336/337/304A IPC was served upon the accused on 12.03.1998 to
which he pleaded not guilty and claimed trial. The Offence under
Section 337 IPC qua complainant Ramesh was disposed off as
FIR No. 441/95 4
State vs. Anil Kumar Dabas
compounded on 30.03.2001.
6 In order to substantiate the allegations, ten witnesses have
been examined on behalf of the prosecution.
7 PW1; ASI Prem Lal is the Duty Officer who has registered
FIR Ex. PW1/A on the basis of rukka sent by SI Ram Chander. The
Defence has chosen not to crossexamine the witness.
8 PW2; Dr. Sudheer Kumar Chaudhary has medically
examined injured Munna Lal, Santosh and Pooran Lal vide MLC no.
25364, 25363 and 25362 respectively. He has proved MLC of Munna
Lal Ex. PW2/A, MLC of Santosh Ex. PW2/B and MLC of Pooran Lal
Ex. PW2/C. The Defence has chosen not to crossexamine the
witness.
9 PW3; Dr. L. T. Ramani has conducted postmortem of
deceased Munna Lal. He has proved postmortem report Ex. PW3/A
(inadvertently mentioned as PW1/A in the testimony). He has opined
that injuries were anti mortem and were caused by Vehicular
accident. The death was deposed to be caused due to shock and
hammeorage consequent to pelvic injury. The witness was not cross
examined either by the prosecution or by the defence.
10 PW4; HC Tanwar Sain is a police official who joined the
investigations with IO SI Ram Chander. He has deposed that he
FIR No. 441/95 5
State vs. Anil Kumar Dabas
along with IO SI Ram Chander went to Rain Basera opposite Shivaji
College as the roof of the Rain Basera has fallen. He has further
testified that the three injured persons were reported to be already
shifted to ESI Hospital. He has deposed that IO collected MLC of
injured persons from hospital and recorded the statement of the
injured Ramesh Kumar whereupon the rukka was prepared. He went
to the police station and got the case registered. He has proved
personal search memo of accused Ex. PW4/A. He has also proved
identification memo of deceased Munna vide Ex. PW4/B. The witness
remained firm on his stand during the crossexamination by the
Defence.
11 PW5; Ct. Prem Singh is another police official who
accompanied the IO to the spot. He has deposed that IO left him at
the spot and went to ESI Hospital for further investigations. The
Defence has chosen not to crossexamine the witness.
12 PW6; Sh. Om Pal Malik is the J.E, who joined the
investigations and produced documents, copies in respect of the
construction of temporary nigh shelter at Raja Garden which includes
Acceptance/ Award letter Ex. PW/6A and schedule of quantities Ex.
PW6/B. He has deposed that all the responsibilities of the
construction site were of accused Anil Dabas, being the contractor of
FIR No. 441/95 6
State vs. Anil Kumar Dabas
the said Site. He has further testified that during the course of
working/ construction at the aforesaid night shelter, some of the
laboureres suffered injuries and one of the labourers namely Munna
Lal died. He has deposed that all the labourers were working at the
site on the directions of accused and under the supervision of
accused. He has proved seizure memo of documents Ex. PW6/C.
The testimony of Sh. Om Pal Malik has remained un
challenged and uncontroverted on record.
13 PW7; Sh. Ramesh Kumar is the complainant who has
adopted a vacillating stand in the witness box.
In his examination in chief recorded on 06.09.2008 he has
deposed that on 03.07.1995, he was working at a site in Delhi along
with few other coworkers hailing from his neighbouring villages. He
has deposed that at about 45 p.m a newly constructed wall had fallen
and three persons sustained injuries. He has categorically deposed
that accused Anil Dabas being the contractor was responsible for the
work at construction site. However, he has failed to reveal the
reasons/ manner of its fall. He has proved his statement Ex. PW7/A
and admitted his signatures thereupon.
However, upon crossexamination by the Ld. APP he has
specifically deposed that " It is correct that accused Anil Dabas,
FIR No. 441/95 7
State vs. Anil Kumar Dabas
present in Court today, was present at that time on the spot and
under his supervision we were doing the aforesaid work at about
4/4.15 pm. It is further correct that about 14 stones sheets
(tukadainan) we had laid on the roof and Munna, Santosh and Puran
were arranging the aforesaid sheets (tukadainan). The accused at
that time got laid bricks and malba on the aforesaid sheets in huge
quantity. It is correct that we all asked the accused, present in the
Court, at that time, not to lay so much weight on the sheets
(tukadaian) as they could not bear the weight and the sheets could be
broken down; or that it can result in any untoward incident. It is
correct that accused inspite of warning, got laid the aforesaid material
in excess on the roof as a result of which the sheets broken down and
all the three aforementioned coworkers namely Munna, Santosh and
Puran also fell down with the sheets, who were working while sitting
on the sheets and became unconscious. It is correct that all the three
aforesaid injured were shifted to ESI hospital. It is correct that the
aforesaid incident occurred due to the rash and negligent and non
using of any safety measures by the accused." He has also
volunteered that he had forgotten the facts due to lapse of time.
He was thereafter crossexamined by the Ld. Defence
Counsel in the matter on 06.09.08. In his crossexamination by the
FIR No. 441/95 8
State vs. Anil Kumar Dabas
Ld. Defence Counsel he remained firm on his stand. He has
categorically deposed that the laying work of sheets (tukdiyan) was
accomplished to the extent of half portion of the roof. He went on
further to testify that the laying work of malba (mud) upon the sheets
(tukdiyan) was going on simultaneously at the time when laying work
of sheets was carried out and the half of the entire portion was also
covered with the malba. He has categorically denied the suggestion
that some contractor other than accused Anil Dabas was exclusively
responsible for the labourers. However, on 06.09.2008 his cross
examination could not be concluded due to paucity of time and the
same was deferred.
His remaining crossexamination was concluded on 10.02.2010
wherein he has taken a Uturn and has deposed that accused was
not present at the spot on the day of the incident. He has also
deposed that the entire responsibility of the work was of one Jugal
Kishore.
In his reexamination by the Ld. APP he has refused to
impute any culpable rashness/ negligence against the accused.
14 PW8; Sh. Santosh is one of the injured in the instant case.
He has not supported the prosecution version in the witness box.
Even despite elaborate crossexamination by the Ld. APP nothing
FIR No. 441/95 9
State vs. Anil Kumar Dabas
material could be elicited out. However, he has admitted that they
were taken to ESI Hospital and one labourer Munna succumbed to
the injuries.
In his crossexamination by the Ld. Defence Counsel he
has admitted the suggestion that a wall collapsed as it was
constructed with the help of mud material.
15 PW9; Sh. Pooran is the other injured in the instant case.
He has also not supported the prosecution version in the witness box.
The Ld. APP was not able to elicit anything material even despite
elaborate crossexamination. However, he has also admitted that they
were taken to ESI Hospital and one labourer Munna succumbed to
the injuries.
In his crossexamination by the Ld. Defence Counsel he
has admitted the suggestion that a wall collapsed as it was
constructed with the help of mud material.
16 PW10; Inspector Ram Chander is the IO of the instant
case. He has deposed that he was assigned the investigations of the
instant case. He has deposed that he along with Ct. Kanwar Sain and
Ct. Prem visited the spot i.e Rain Basera which was under
construction where they saw that some bricks/ cement blocks were
fallen on the ground. He has deposed that they came to know that
FIR No. 441/95 10
State vs. Anil Kumar Dabas
34 labourers sustained injuries and they were shifted to ESI hospital.
He visited ESI hospital and collected the MLCs of injured persons. He
has testified that eyewitness Ramesh was found at the hospital and
he made the complaint Ex. PW7/A. He has proved endorsement on
rukka Ex. PW10/A. He has deposed that accused Anil Dabas was
arrested in the instant matter and his personal search was carried out.
He has proved DD no. 28 regarding the death of injured Munna Lal
Ex. PW10/B.
In his crossexamination he has admitted that he has not
taken any photographs of the site. He has denied the suggestion that
he has falsely implicated the accused in collusion with MCD officials.
He has admitted in response to a Court question that he has not
seized any construction material and he has even failed to obtain any
expert opinion regarding the construction material used by the
accused.
17 Upon conclusion of P.E., statement of accused U/s 313
Cr.P.C was recorded on 30.07.2011, wherein accused has pleaded
innocence and has categorically deposed that he has successfully
completed the entire project and he was even issued the Completion
Certificate Ex. D1 in this regard. He has also claimed that the
department has even refunded his security deposits vide Ex. D2. He
FIR No. 441/95 11
State vs. Anil Kumar Dabas
has claimed that he was not present at the spot at the time of the
accident and he is not even aware as to how the incident took place.
He has admitted that a slab or two might have fallen down but he
was not present at the spot. He has specifically claimed that he is a
qualified Engineer and there was no negligence on his part. He has
claimed that he has successfully discharged his duties as a contractor
at the pertinent point of time.
18 There were quite a few startling facts about the evidence
led on record and thus the Court was required to exercise its power
U/s 311 Cr.P.C whereby three witnesses were summoned as Court
witnesses.
19 CW1; Sh. O.P. Arora is Retired Executive Engineer,
Slum and J.J. Department, MCD, who has issued the certificate of
successful completion of construction work i.e temporary night shelter
at Raja Garden to accused Anil Dabas and has deposed as under:
"I have issued certificate Ex. D1 on the request of
the contractor. Generally, we issue these kind of
certificate to the contractor upon their request on
the basis of record. I am not aware about any
provision regarding issuance of such certificate,
however, there is a practice in the department to
issue these certificate to the contractor ."
FIR No. 441/95 12
State vs. Anil Kumar Dabas
20 Dr. L.T. Ramani who has conducted the
postmortem of deceased Munna Lal has deposed that the
injuries were caused by vehicular accident. Regretfully the
prosecution has opted not to crossexamine Dr. L.T. Rmani
regarding his opinion which apparently was in absolute
contradiction with the prosecution case. Thus Dr. L.T. Ramani
was also summoned for clarifications U/s 311 Cr.P.C. However,
Dr. L.T. Ramani was reported to be not traceable and thus vide
order dated 03.09.2011 the concerned Chief Medical Officer
was directed to depute a qualified doctor who can assist the
Court in deciphering the postmortem report of deceased Munna
Lal. Consequently CW2; Dr. Sunder R.S. Murgan, Orthopedic
Surgeon, ESI Hospital was deputed by the Chief Medical
Officer to assist the Court who has deposed here as under :
"I am M.B.B.S. and PG diploma in orthopaedics. I had
been practising medicine since 1989.
Court Question:
Q. Sir, can you assist the court if it is possible with the aid
of medical science to distinguish the injuries inflicted in a
vehicular road traffic accident and injuries inflicted during
a building collapse?
Ans. It is very much possible today to distinguish between
the injuries inflicted in a vehicular road traffic accident
and injuries inflicted during a building collapse.
FIR No. 441/95 13
State vs. Anil Kumar Dabas
There would be external injuries in vehicular road
traffic accident. The bones are at times exposed due to
the vehicular road traffic accident. There might be other
symptomatic feature like vomiting or systemic collapse.
We also look for tyre marks. Glasco coma scale is also
used for assessing the level of injury on the basis of motor
level and the verbal level and the conscious level.
Usually, the glasco coma scale readings finds a mention
in the postmortem report. In case of fall from building or
an injury under the fall of building generally there is no
external injury. In case of vehicular accident the patient is
generally unconscious due to shock and invariably there
is spinal injury in case of vehicular road traffic accident. In
case of building collapse injuries the injuries are invariably
direct regional injuries. In case of vehicular accident there
is excessive external bleeding where as in case of
building accident bleeding is usually internal.
Generally, the attendant accompanying the
patient comes with the history of the patient indicating the
road traffic accident.
Q. Can you kindly assist the court after going through the
postmortem report Ex. PW3/A that what are the specific
symptoms/indicators visible in the said report?
At this stage, witness is asked to go through the
postmortem report Ex. PW3/A and he answers as follows:
Ans. The cause of the death in the instant case was due
to haemorhagic shock due to hypovolemic shock i.e.
excessive internal bleeding consequent to a localized
pelvic bone injury alongwith internal complete urinary
bladder rupture.
Q. There are some puncture wounds reported in the
postmortem report Ex. PW3/A. Can you kindly assist us in
FIR No. 441/95 14
State vs. Anil Kumar Dabas
analysing those wounds?
Ans. The puncture wounds are also consequent upon the
injuries upon the pelvic bones.
Q. Whether any tyre marks or other prominent feature
related to the vehicular road traffic accident is evident in
the instant case?
Ans. In this case no tyre marks or other prominent feature
related to the vehicular road traffic accident is evident.
It certainly is not a case of vehicular road traffic
accident. As per medical science the instant case appears
to be a case involving injuries of the whole left pelvis
leading on to major urinary bladder injury causing
excessive internal blood loss, more than 23 litres of the
blood, leading on to hypovolemic and in turn leading on
to haemorhagic shock which produces
peripharal/systemic circulatory collapse which in turn lead
on to cardio vascular collapse and the patient succumbed
to injuries. The symptoms unambiguously points towards
a case of building collapse leading to the collapse of the
victim."
He has remained firm on his stand during the
crossexamination by the Ld. Defence Counsel. He has
admitted that he was not a forensic expert, however, he has
claimed that he was eligible to conduct postmortems. He has
specifically claimed that it is not essential in every case that a
forensic science expert can give an opinion over the opinion
given by an orthopedic surgeon. He has admitted that he had
neither seen the deceased nor conducted the postmortem and
FIR No. 441/95 15
State vs. Anil Kumar Dabas
he has testified on the basis of record available.
21 CW3; Sh. N.H. Sharma, Executive Engineer, Delhi
Urban Shelter Improvement Board, Government of NCT, has
produced the record pertaining to the construction of temporary
night shelter at Raja Garden. On the basis of the record he has
deposed that the entire record is silent if the Department has
carried out any vigilance inquiry.
In response to a court query he has deposed that
after going through the record he could certainly testify that the
night shelter was constructed as per the original site plan. He
has further deposed that the building is in proper shape since
05.10.1995 after it was constructed by the accused.
He has admitted in his crossexamination by the Ld.
Defence counsel that the record did not reflect any mishap at
the site and the timely payments were made to the accused as
per routine.
22 Upon conclusion of the remaining evidence, the
incriminating material was once again put to the accused and
his statement was recorded U/s 313 Cr.P.C on 05.11.2011.
The accused has once again pleaded innocence and has
claimed that he was not negligent at all. The accused has
FIR No. 441/95 16
State vs. Anil Kumar Dabas
opted not to lead any Defence Evidence.
23 I have heard the rival submissions and carefully
perused the record.
24 The offence of Section 304A IPC includes within its
ambit the offence Under Section 336 and Section 337 IPC,
therefore, I propose to test the guilt of the accused for the
offence U/s 304A IPC upon the anvil of evidence available on
record.
25 The offence of Section 304A IPC is reproduced
herein for ready reference:
Section 304 A. Causing death by negligence:
"Whoever causes the death of any persons by
doing any rash or negligent act not amounting to
culpable homicide, shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine, or with both".
26 In order to bring home the charge for the offence U/s
304A IPC, it is obligatory upon the prosecution to prove the
following essential ingredients:
(i) There was the death of the person in question.
(ii) The accused caused the said death.
(iii)Act of the accused causing the death was rash or
FIR No. 441/95 17
State vs. Anil Kumar Dabas
negligent but it did not amount to culpable homicide.
27 The death of deceased Munna Lal is not in dispute.
The postmortem report Ex. PW3/A conclusively establishes the
death of poor Munna Lal.
28 Now, I move on to the second ingredient of the
offence U/s 304A IPC.
29 Sh. Ompal Malik (PW6) has categorically deposed
that:
"During the course of working/ construction at the
aforesaid nigh shelter, some of the labourers suffered
injuries and one of the labour namely Munna Lal died.
All the responsibility of the construction site was of the
contractor namley Anil Kumar Dabbas who is present in
the court today, correctly identified by the witness. All
the labourers were working on the site on the directions
and under supervision of accused, present in the court
today on 3.7.95 at the time of incident. Accused was on
3.7.95 was acting as contractor given the aforesaid
construction award/ work to the accused award No. WA
4222/50/EES CD1 (S)/94/95 D323 dated 24.2.95."
The testimony of Sh. Ompal Malik has remained
unchallenged and uncontroverted on record. The testimony of
FIR No. 441/95 18
State vs. Anil Kumar Dabas
Sh. Ompal Malik conclusively establishes on record that Sh.
Munna Lal died during the course of construction of the night
shelter at Raja Garden. It also conclusively establishes on
record that all the responsibilities of the construction rested
upon accused Anil Kumar Dabas.
30 However, an important void appears in the prosecution
version regarding the cause of death of Sh. Munna Lal and the
same needs a deeper analysis.
31 Admittedly Dr. L.T. Ramani (PW3) who has conducted
the postmortem of deceased Munna Lal has categorically
deposed that the cause of death was vehicular accident. It has
been contended by the Ld. Defence Counsel that Dr. L.T.
Ramani has conducted more than 20,000 postmortems and his
name finds a mention in Guinness Book of World Records. It
has been further highlighted by the Ld. Defence counsel that
even the prosecution has opted not to crossexamine the
witness and thus the unchallenged testimony of Dr. L.T. Ramani
deserves to be accorded due credence.
On the contrary, the Ld. APP has vehemently argued that
there is no irrebuttable presumption that a doctor is always a
witness of truth and the evidence of a doctor is to be
FIR No. 441/95 19
State vs. Anil Kumar Dabas
appreciated like the evidence of any other witness. It is
contended by the Ld. APP that in case of contradiction between
two experts the one favouring the ocular evidence needs to be
given primacy. The Ld. APP has placed heavy reliance upon
the testimony of Dr. Sh. Sunder R.S. Murgan (CW2) wherein Dr.
R.S. Murgan has categorically deposed that the death in
question is certainly not a case of vehicular road traffic accident
and the symptoms unambiguously points towards a case of
building collapse leading to the collapse of the victim.
32 I am in complete agreement with Ld. Defence counsel
that the prosecution ought to have crossexamined Dr. L.T.
Ramani. I further agree that the deposition of Dr. L.T. Ramani
cannot be brushed aside lightly as he had the opportunity to
physically observe the deceased. However, having said so, I
cannot travel any further with the Ld. Defence Counsel that a
medical expert is a super human being who is infallible and
whose testimony cannot be subjected to scrutiny. I concur with
the Ld. APP that the opinion of a doctor or a medical expert is
not to be treated as a gospel truth. The opinion of a medical
witness merely acts as an aid for the Court to formulate an
opinion regarding the issue under consideration. Whenever
FIR No. 441/95 20
State vs. Anil Kumar Dabas
there is a glaring inconsistency between the opinion of the
medical witness and the attendant circumstances the opinion of
the medical witness is to be tested by the Court.
33 It has been observed by the Hon'ble Apex Court in the
matter of Mayur Panabhai Vs. State of Gujrat; AIR 1983
SUPREME COURT 66 :
"Even where a doctor has deposed in court, his
evidence has got to be appreciated like the
evidence of any other witness and there is no
irrebuttable presumption that a doctor is always a
witness of truth".
34 It has been further observed by the Hon'ble Apex Court
in the matter of State of Haryana Vs. Bhagirath and others;
AIR 1999 SUPREME COURT 2005 :
"17. The opinion given by a medical witness
need not be the last word on the subject. Such
opinion shall be tested by the court. If the opinion is
bereft of logic or objectivity, Court is not obliged to
go by that opinion. After all opinion is what is formed
in the mind of a person regarding a fact situation. If
one doctor forms one opinion and another doctor
forms a different opinion on the same facts it is open
to the judge to adopt the view which is more
objective or probable. Similarly if the opinion given
FIR No. 441/95 21
State vs. Anil Kumar Dabas
by one doctor is not consistent with probability the
Court has no liability to go by that opinion merely
because it is said by the doctor. Of course, due
weight must be given to opinions given by persons
who are experts in the particular subject".
35 After close scrutiny of the material available on
record the Court is of the opinion that the opinion of Dr. Sunder
R.S. Murgan (CW2) deserves to be given credence over the
opinion of Dr. L.T. Ramani (PW3). Dr. Sunder R.S. Murgan has
vividly laid down the foundation for the basis of his opinion. He
has specifically highlighted the prominent distinctive features in
the injuries inflicted in a vehicular road traffic accident and
injuries inflicted during a building collapse. Whereas Dr. L.T.
Ramani has failed to highlight the basis of his opinion.
36 The perusal of postmortem report Ex. PW3/A reveals
that the report begins with the case history of deceased Munna
Lal reflecting the words "alleged to have died at ESI Hospital
on 03.07.1995 at 06:30 p.m. with history of RTA (road
traffic accident)". The aforesaid history appears to have
caused Dr. L.T. Ramani to have erred in his opinion. The time
of the incident, as reflected from the statement of complainant
Ex. PW7/A and the endorsement of the IO on rukka Ex.
FIR No. 441/95 22
State vs. Anil Kumar Dabas
PW10/A, is conclusively established on record to be 4.00 4:15
p.m. Even the Defence is not disputing the time of the incident.
The unrebutted testimony of Sh. Ompal Malik (PW6) has
conclusively established on record that deceased Munna Lal
has sustained injuries during the course of construction at the
night shelter. MLC Ex. PW2/A of deceased Munna Lal reflects
that the deceased was brought to hospital at about 04:30 p.m.
Therefore it is evident that within 15 minutes of the mishap the
deceased was brought to the hospital. It is an admitted case
that thereafter the deceased succumbed to the injuries in the
hospital. The postmortem report Ex. PW3/A records the time of
the death to be 06:30 p.m. in ESI Hospital. Even the defence is
not disputing that the deceased expired in the hospital itself.
Therefore, it is only a hiatus of about 15 minutes i.e the time
taken in bringing the deceased to the hospital, which separates
the cause of death from the alleged injuries sustained during the
course of construction at the night shelter. The MLC of
deceased Munna Lal Ex. PW2/A also reveals that the deceased
was brought to the hospital by accused Anil Dabas himself.
Now after sustaining injuries at the construction site, if the
deceased has met with any vehicular road traffic accident
FIR No. 441/95 23
State vs. Anil Kumar Dabas
during the aforesaid 15 minutes, it is a fact within the special
knowledge of accused himself.
As per provisions of Section 106 of Indian
Evidence Act the burden of proving any fact especially within
the knowledge of any person is upon that person only. In the
absence of any evidence to the contrary the only inescapable
conclusion that can be drawn is that the deceased Munna Lal
sustained injuries at the construction site only. Thus it is
evident that the alleged history of vehicular road traffic accident,
as narrated to Dr. L.T. Ramani, has been deliberately misfed,
which caused Dr. L.T. Ramani to erroneously opine that the
cause of death was due to vehicular road traffic accident.
37 Besides, the external injuries suffered by deceased
Munna Lal as revealed from Postmortem report Ex. PW3/A are
here as under :
(i) Abrasions on left and right elbow.
(ii) Abrasions 1 ¼ " X ½ " with small puncture wounds ½ " X
¼ " skin deep on the upper part back of left thigh.
The postmortem report further reveals that there was
massive blood clot in anterior pelvic wall and retro peritonial
tissues. Both supra pubic rami are fractured. Urinary bladder is
FIR No. 441/95 24
State vs. Anil Kumar Dabas
extensively bruised.
38 Therefore it is evident that the deceased has received
severe internal injuries. Whereas the external injuries are
reflected to be superficial in nature. It appears highly
improbable that a victim would have met with a road traffic
accident with such ferocity that he has sustained extensive
internal injuries in his pelvic region and even his bones are
fractured but he escapes with superficial external injuries on
elbow portion and left thigh portion. It is evident that there is no
external injury sustained by the victim upon his pelvic region.
Furthermore, it is also noteworthy to mention here that there is
abrasion mark and puncture wound ½ " X ¼ " skin deep over
the left thigh where as no bony injury to the left thigh bone is
reported to have been sustained by the victim. Evidently there
are no tyre marks, external bleeding or any other prominently
distinctive injury sustained by the deceased which could be
attributed to a case of road traffic accident. On the contrary, a
person sitting on his haunches, while laying down stone slabs,
is likely to sustain injuries upon his elbow, thigh and pelvic
region in case of any building collapse where heavy object falls
upon the pelvic region of the victim.
FIR No. 441/95 25
State vs. Anil Kumar Dabas
39 It has been observed by the Hon'ble Apex Court in
the matter of Purna Palai Vs. The State 1987 CRI. L. J. 1406:
"Direct evidence, if satisfactory and reliable, cannot
be rejected on hypothetical medical evidence. If
there is conflict in the opinions of two medical
witnesses, the opinion of that medical witness which
supports the direct evidence is ordinarily to be
accepted."
40 It has been further observed by the Hon'ble Apex
Court in the matter of Piara Singh and others Vs. State of
Punjab AIR 1977 SUPREME COURT 2274:
"It is well settled that the positive evidence in the case
is that of the eyewitnesses who had seen and
narrated the entire occurrence. The evidence of a
medical man or an expert is merely an opinion which
lends corroboration to the direct evidence in the case.
Where there is a glaring inconsistency between direct
evidence and the medical evidence in respect of the
entire prosecution story, that is undoubtedly a
manifest defect in the prosecution case. This
however is not the position here. There is no
inconsistency between the direct and the medical
evidence. What has happened is that two experts,
namely, Dr. Jatinder Singh and Dr. Parmjit Singh had
differed in their opinions. The High Court rightly
observed that in view of difference of opinion
FIR No. 441/95 26
State vs. Anil Kumar Dabas
between the two experts the evidence of Dr. Jatinder
Singh must be preferred as it is supported by the
evidence of the eye witnesses whose evidence is
both reliable and trustworthy and is also supported
by other circumstances proved in the case. It seems
to us that where there is a conflict between the
opinion of two experts the court should normally
accept the evidence of the expert whose evidence is
corroborated by direct evidence of the case which
according to the court is reliable. In the case of The
Queen Vs. Ahmed Ally, (1869) 11 Suth WR (Crl) 25 a
Division Bench of the Calcutta High Court in a
somewhat similar situation observed as follows:
"Dr. Duncan may have given his evidence like an
intelligent man, but it is not the proper way to try a
case to rely on mere theories of medical men, or
skilled witnesses of any sort against facts positively
proved."
"The evidence of a medical man, or other skilled
witness, however eminent, as to what he thinks may,
or may not have taken place under a particular
combination of circumstances, however confidently
he may speak, is ordinarily a more fallible. Human
knowledge is limited and imperfect."
6. We find ourselves in complete agreement with
the observations made by the Calcutta High Court in
the aforesaid case and hold that where the opinion of
a medical witness is contradicted by another medical
witness both of whom are equally competent to form
an opinion the opinion of that expert should be
accepted which supports the direct evidence in the
FIR No. 441/95 27
State vs. Anil Kumar Dabas
case.
41 Therefore guided by the observations of the Hon'ble
Apex Court in the matter of Piara Singh and Others Vs. State
(Supra), this court finds the testimony of Dr. Sunder R.S.
Murgan (CW2) to be more cogent and credible and would prefer
to adopt his opinion that the deceased expired due to a mishap
in the construction of night shelter.
42 In light of the aforesaid discussion it has been
conclusively established on record that deceased Munna Lal
has expired due to a mishap / building collapse during the
construction of night shelter which was constructed under the
supervision of accused Anil Kumar Dabas.
43 Now the only contentious issue that remains to be
considered is whether the act of the accused was rash or
negligent to bring home a charge for the offence U/s 304A IPC.
44 The case of the prosecution to prove the alleged
culpable rashness and negligence hinges upon the testimony of
injured Santosh (PW8), Pooran (PW 9) and complainant
Ramesh Kumar (PW7).
45 Now I proceed to test the probative value of the
material witnesses of the prosecution.
FIR No. 441/95 28
State vs. Anil Kumar Dabas
46 Injured Santosh (PW8) and Pooran (PW9) have
admittedly not supported the prosecution version in the witness
box. Both of them have deposed on exactly similar lines. The
prosecution has not been able to elicit anything material from
the crossexamination of the said witnesses. Surprisingly the
injured have hibernated in a state of absolute negation.
In their examination in chief both of them have
categorically deposed that accused Anil Kumar was not present
at the spot. However, in their cross examination by the Ld. APP
they have acknowledged the presence of the accused at the
spot but have feigned ignorance about the reasons of his
presence at the spot. During their examinationinchief they are
not even coming forth with the fact that any incident at all has
happened at the said night shelter on 03.07.1995. They are
even not willing to reveal if they had sustained any injuries on
the said date. They have simply deposed that they were taken
to ESI hospital. Whereas IO Inspector Ram Chander has
categorically deposed that when he went to hospital he found
Pooran and Santosh under medical treatment. The said fact
had not been disputed by the Defence. Even Dr. Sudhir Kumar
Chaudhary (PW2) has proved the MLC of injured Santosh Ex.
FIR No. 441/95 29
State vs. Anil Kumar Dabas
PW2/B and MLC of Pooran Ex. PW2/C whereby they were
medically examined in ESI hospital. Even the testimony of Dr.
Sudhir Kumar Chaudhary has not been challenged by the
Defence. The injured persons appear to have adopted an
attitude of nihilistic quiescence in their examinationinchief
whereas in their crossexamination they promptly accepted the
suggestion of the Ld. Defence Counsel that a wall has collapsed
as it was constructed with the help of mud material. The
reasons are not difficult to fathom and the injured witnesses
appears to have been won over by the Defence.
47 In view of the aforesaid tainted nature of the testimony
of Santosh (PW8) and Pooran (PW9) we are left only with the
testimony of complainant Ramesh Kumar (PW7). Even
complainant Ramesh Kumar has not been consistent in his
stand in the witness box.
48 Ld. Defence counsel has attacked the testimony of the
complainant Ramesh Kumar by arguing that considering its
inconsistent nature the same deserves to be discarded. It has
been argued that the complainant was declared hostile and his
testimony cannot be acted upon.
On the contrary Ld. APP has argued that the legal
FIR No. 441/95 30
State vs. Anil Kumar Dabas
maxim falsus in uno falsus in omnibus is not applicable in India.
It is thus argued that the testimony of a hostile witness cannot
be effaced completely off the record.
49 This Court finds force in the submissions of the Ld.
APP that simply because a witness has been declared hostile
his testimony cannot be discarded in toto.
50 In the case of State of U.P. Vs. Anil Singh AIR
1988 S.C. 1998, it has been observed by the Hon'ble Apex
Court that:
"It is also experienced that invariably the witnesses
add embroidery to prosecution story, perhaps for the
fear of being disbelieved. But that is no ground to
throw the case overboard, if true, in the main. If
there is a ring of truth in the main, the case should
not be rejected. It is the duty of the Court to cull out
the nuggets of truth from the evidence unless there
is reason to believe that the inconsistencies of
falsehood are so glaring as utterly to destroy
confidence in the witnesses. It is necessary to
remember that a Judge does not preside over a
criminal trial merely to see that no innocent man is
punished. A Judge also presides to see that a guilty
man does not escape. One is as important as the
other. Both are public duties which the Judge has to
perform."
FIR No. 441/95 31
State vs. Anil Kumar Dabas
51 In light of the aforesaid observation of the Hon'ble
Apex Court it would be worthwhile to test the intrinsic value of
testimony of complainant Ramesh Kumar.
52 Admittedly, Sh. Ramesh Kumar (PW7) in his
examinationinchief recorded on 06.09.2008 has not supported
the prosecution version initially. However, upon cross
examination by the Ld. APP he has admitted the entire
prosecution version. The relevant portion of the testimony is
reproduced herein as under
" It is correct that accused Anil Dabas, present in
Court today, was present at that time on the spot
and under his supervision we were doing the
aforesaid work at about 4/4.15 pm. It is further
correct that about 14 stones sheets (tukadainan) we
had laid on the roof and Munna, Santosh and Puran
were arranging the aforesaid sheets (tukadainan).
The accused at that time got laid bricks and malba
on the aforesaid sheets in huge quantity. It is
correct that we all asked the accused, present in the
Court, at that time, not to lay so much weight on the
sheets (tukadaian) as they could not bear the
weight and the sheets could be broken down; or
that it can result in any untoward incident. It is
correct that accused inspite of warning, got laid the
aforesaid material in excess on the roof as a result
of which the sheets broken down and all the three
aforementioned coworkers namely Munna,
FIR No. 441/95 32
State vs. Anil Kumar Dabas
Santosh and Puran also fell down with the sheets,
who were working while sitting on the sheets and
became unconscious. It is correct that all the three
aforesaid injured were shifted to ESI hospital. It is
correct that the aforesaid incident occurred due to
the rash and negligent and non using of any safety
measures by the accused."
53 Complainant Ramesh Kumar (PW7), even before
his crossexamination by the Ld. APP,has testified to have
made the statement Ex. PW7/A and has admitted his signatures
thereupon. The FIR Ex. PW1/A in the instant matter was
recorded upon the complaint Ex. PW7/A of the complainant.
54 It is true that the first information report is not a
substantive piece of evidence but the FIR being the first version
of the incident, the statement made therein must be given due
weight. Reliance is placed upon Kalyan Vs. State of U.P.
(2001) 9 SCC 632. FIR in a criminal case is a vital and valuable
piece of evidence for appreciating the evidence led by the
prosecution in the trial.
The statement of the complainant which forms the subject
matter of the instant FIR can be used for the purpose of
corroboration of the witness as per Section 157 of the Indian
Evidence Act. The statement Ex. PW7/A in the instant matter
FIR No. 441/95 33
State vs. Anil Kumar Dabas
was recorded in the hospital at about 07:00 p.m. The alleged
incident took place at about 4.00 4:15 p.m. The FIR in the
instant case is an embryonic document which leaves no scope
for embellishment and rules out the possibility of any
concoction. The statement Ex. PW7/A very elaborately
describes the entire incident and duly corroborates the
testimony of the complainant elicited out of his cross
examination by the Ld. APP. Moreover, the complainant has
duly explained in his crossexamination by the Ld. APP that
due to lapse of time he was not able to recollect the entire
details. The entire testimony of the complainant remained
intact on 06.09.2008 and defence was not able to dislodge the
credibility of the complainant.
Regretfully, he took a Uturn in his crossexamination
recorded on 10.02.2010. In his examinationinchief recorded
on 06.09.2008 he has categorically deposed that the accused
was the contractor of the construction site in question. He has
specifically deposed that the accused was responsible for the
whole work. In his crossexamination by the Ld. APP on the
same date he has admitted that accused Anil Dabas was
present on the spot at the time of the incident. Whereas
FIR No. 441/95 34
State vs. Anil Kumar Dabas
surprisingly in his crossexamination by the Ld. Defence
Counsel on 10.02.2010 he has taken a Uturn and has admitted
the suggestion of the Ld. Defence Counsel that accused was
not present on the spot on the day of the incident. He has also
attempted to defend the accused by claiming that the entire
responsibility of the work was of one Jugal Kishore. The
complete Uturn by the witness leads us to an inescapable
conclusion that he was won over by the Defence in the
intervening period and on 10.02.2010 he was not forthcoming
with truth before the Court. However, the Court would be failing
in its duties if it does not penetrates through the negotiated
silence of the complainant. The detailed narration about the
incident in his examinationinchief duly corroborated with the
first information report Ex. PW1/A goes to show that the
subsequent attempt of complainant Ramesh Kumar to disown
his statement Ex. PW7/A, while admitting his signatures
thereon, is a shift from truth for reasons best known to the
complainant himself.
55 It has been observed by the Hon'ble Apex Court in
the matter of Khujji @ Surendra Tiwari vs. State of Madhya
Pradesh Criminal Appeal No. 413 of 1982 decided on
FIR No. 441/95 35
State vs. Anil Kumar Dabas
16.07.1991 while examining the testimony of Ramesh Chand
(PW4) who has lodged the FIR that
"It is true that the first information report is not
substantive evidence but the fact remains that
immediately after the incident and before there was
any extraneous intervention PW4 went to the police
station and narrated the incident. The first
information report is a detailed document and it is
not possible to believe that the investigating officer
imagined those details and prepared the document
Exh. P3. The detailed narration about the incident
in the first information report goes to show that the
subsequent attempt of PW4 to disown the
document, while admitting his signature thereon, is
a shift for reasons best known to PW4. We are,
therefore, not prepared to accept the criticism that
the version regarding the incident is the result of
some fertile thinking on the part of the investigating
office. We are satisfied, beyond any manner of
doubt, that PW4 had gone to the police station and
had lodged the first information report. To the
extent he has been contradicted with the facts
stated in the first information report shows that he
has tried to resile from his earlier version regarding
the incident."
56 In light of the aforesaid observation of the Hon'ble
Apex Court in the matter of Khujji @ Surendra Tiwari Vs. State
of M.P. (Supra), I have no hesitation in holding that the
testimony of the complainant to the extent corroborated by
FIR No. 441/95 36
State vs. Anil Kumar Dabas
statement Ex. PW7/A can be safely acted upon. Once arriving
at such a conclusion it would not be wrong to infer that the
conduct of the accused in adding mud / malba upon the roof, in
excess of its bearing capacities, was grossly negligent. My
opinion regarding the negligent conduct of the accused is
further bolstered by the suggestion of the Ld. Defence counsel
to injured Santosh (PW8) and Pooran (PW9) which was duly
endorsed by the said witnesses. Interestingly, the Defence has
itself suggested to the injured witnesses that a wall collapsed as
it was constructed with the help of mud material(gara). The
contractor herein is a qualified Engineer and thus he was
required to be cautious while analyzing the load capacity of the
roof or while selecting the material used for construction of a
wall. Opting to choose to construct a wall with simple mud
(gara) points towards the poor quality of the intrinsic worth of
the construction material used in the construction of the wall.
Now in these circumstances it would not be wrong to infer that
the question whether the roof collapsed or simply a wall
collapsed has become insignificant, for invariably in case of roof
collapse the wall underneath also collapses and vice versa. In
either case the collapse was consequent upon the negligence of
FIR No. 441/95 37
State vs. Anil Kumar Dabas
the accused.
57 Besides, there can be another approach to converge
at the same conclusion. There can be no second thought about the
golden principle that in a criminal trial burden rests upon the
prosecution to prove its case beyond a reasonable shadow of
doubt. However the pristine rule should not be taken as a fossilised
doctrine as though it admits no process of intelligent reasoning. In
a criminal trial there are situations when the prosecution is able to
conclusively establish on record the existence of circumstances
which unerringly points towards the guilt of the accused. The legal
maxim 'Res Ipsa Loquitur' as a ratiocinative aid in assessment of
evidence is not alien to the criminal jurisprudence of the country.
Reliance is placed upon Raghubir Singh vs State Of Haryana
1974 AIR 1516, 1974 SCR (2) 799 where in a three Judge Bench of
the Honble Apex Court has recognised the applicability of the
principle of 'Res Ipsa Loquitur' in criminal trials.
58 In light of the aforesaid legal position let us now
analyse the case at hand. There can be end number of reasons for
a collapse of a building. However, collapse of a building under
construction leaves little scope for imagination. Except for sabotage
or act of God,which is not the case here,an under construction
FIR No. 441/95 38
State vs. Anil Kumar Dabas
building can only collapse if the builder is attempting to execute an
impossible design or the construction is shoddy.
59 In the case at hand it has been conclusively
established on record by the uncontroverted testimony of Sh.
Ompal Malik (PW6) that during the course of working/ construction
at the aforesaid nigh shelter, some of the labourers suffered injuries
and one of the labour namely Munna Lal died. All the responsibility
of the construction site was of the contractor namely Anil Kumar
Dabbas. Even the Defence has suggested in the cross examination
of material witnesses i.e. Complainant Raj Kumar (PW7), injured
Santosh (PW8) and injured Puran (PW9) that a freshly constructed
wall constructed with mud(gara) has collapsed. The testimony of
CW3 Sh. N.H. Sharma has conclusively established on record that
the night shelter was subsequently constructed as per the original
site plan and is in proper shape till date. Therefore, it is evident that
the accused was not required to execute an impossible design. In
these circumstances, the only plausible inference that can be drawn
on the basis of established circumstances is that the building/wall
could not have collapsed unless the construction was shoddy. In
these circumstances it would not be legally impermissible to invoke
the legal maxim Res Ipsa Loquitur, which shifts the onus upon the
FIR No. 441/95 39
State vs. Anil Kumar Dabas
accused to exculpate himself by rebutting the presumption that he
was negligent.
60. The facts of the case at hand are akin to a recent case
decided by a Division Bench of the Hon'ble Delhi High Court in
Crl.L.P.No.129/2009 State vs Rajesh Gupta @ Titu Date of
Decision : 16th March, 2010.
In the case of State vs Rajesh Gupta (supra), accused
Rajesh Gupta was the owner of a plot of land bearing municipal No.
125, Village Badhola and without any sanction from the Municipal
Authorities he commenced construction on a building on his
property which collapsed at around 1:00 PM on 12.03.2000
resulting in injuries being caused to Smt.Bimla, Smt.Manju, Arun,
Sunil, Suraj and Rahul. Golu son of Bimla died. The learned trial
Judge has acquitted the respondent holding that the testimony of
Sh. Rajesh Batra PW 14 and the report Ex.PW14/A through the medium of which the State intended to prove that the structure erected by the respondent was weak, did not inspire confidence for the reason that the author of the report was J.K.Bhardwaj but the same was intended to be proved through the testimony of Rajesh Batra who had never visited the spot and had not examined the structure. The Hon'ble Delhi High Court has set aside the judgment FIR No. 441/95 40 State vs. Anil Kumar Dabas of the Ld.Trial Court holding that the principle of Res Ipsa Loquitur is attracted on the facts of the instant case and the respondent was held guilty for the offence u/s 304A IPC.
61 In light of the aforementioned case, there remains no doubt that it was incumbent upon accused Anil Kr. Dabas to rebut the presumption that he was negligent and that the collapse could not have been averted despite his vigilance. In his examination under section 313 Cr.P.C.the accused was specifically questioned that the circumstances points to the fact that he was negligent in the construction of the building and thus building collapse took place. However, the accused has failed to discharge the onus placed upon him. He has simply claimed that he was not negligent.
62 In Trimukh Maroti Kirkan Vs. State of Maharashtra,II (2006) DMC 757 (SC)=IV (2006) CCR 169 (SC)= VII (2006)SLT453 = 2006(10)SCC 681, the Supreme Court has held as under: In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes FIR No. 441/95 41 State vs. Anil Kumar Dabas an additional link in the chain of circumstances to make it complete."
63 Considering the totality of circumstances, there remains no doubt that on 3.7.1995 at about 4.004.15 p.m, Santosh (PW8) and Puran Lal (PW9) sustained simple injuries and poor Munna Lal expired due to the rash and negligent conduct of the accused in construction of the night shelter. 64 The Ld. Defence counsel has feebly attempted to defend the accused by arguing that the IO has failed to get the spot photographed and has further failed to collect any construction material from the site. Admittedly, it would have been better that the IO of the instant case should have get the site photographed and should have collected the construction material. However, the defence cannot claim to have earned any vested benefit on account of follies / omissions of the IO. Reliance is place upon State of West Bengal Vs. Mir Mohd. Omar & Ors. (2008) 8 Supreme Court cases 382.
65 As a cumulative effect of the aforesaid discussion, I am of the opinion that the accused deserves to be convicted for the offence U/s 336/337/304A IPC levelled against him. Ordered accordingly.
66 The Court is appreciative of the sacrosanct principle of FIR No. 441/95 42 State vs. Anil Kumar Dabas natural justice. However, the Court would be failing in its duties, if the inscrutable indolence of the authorities is not highlighted. Before parting, this Court would like to bring on record its disappointment because of the lackadaisical attitude of the authorities in the instant case.
67 Dr. L. T. Ramani (PW3) has very callously conducted the post mortem and has opined that the death was caused by vehicular accident. Surprisingly, the prosecution has opted not to cross examine the witness. Furthermore, the IO has also failed to discharge his duties with due diligence. The most painful is the conduct of officials of construction division no. 1 J.J. Colony, MCD Shivaji Enclave, Slum & JJ Department. Sh. O. P. Malik; the concerned JE has deposed on oath before the Court regarding the aforementioned mishap, however, the incident is conspicuous by its absence in departmental records. Surprisingly, instead of levying any penalty over the delinquent, the concerned officials have ensured timely payments to the contractor. The state of slumber of the concerned Executive Engineer and the concerned Asst. Engineer is beyond any rational parameters of comprehension. The conduct of the erring officials is apparently not only an attempt to shield the offender but is also an unscrupulous FIR No. 441/95 43 State vs. Anil Kumar Dabas exercise in squandering the public exchequer. 68 The department was engaged in the construction of a building meant for providing shelter to the destitutes and downtrodden. The conscience of this Court shudders at the mere thought of the number of casualties that could have ensued, if the building would have survived for a few more days. No public official of the country can afford to ignore the fact that he owe his position to the faith reposed in him by the common man of the country. A society insensitive to the persons at the bottom of social pyramid shall ultimately collapse under its own weight. In these circumstances, I deem it appropriate that the matter ought to be brought to the notice of the higher echelons of the concerned department.
69 Accordingly, let a copy of the instant judgment be also sent to worthy Chief Executive Officer(DUSIB), Punarwas Bhawan, I.P. Estate, New Delhi110002 who may, if considered desirable, initiate appropriate action against the erring officials. It is further expected of the worthy Chief Executive Officer that this Court shall be intimated about the remedial action initiated at his level.
Announced in the open court on 09.12.2011 (Dharmender Rana) MM/Delhi /09.12.2011 FIR No. 441/95 44 State vs. Anil Kumar Dabas IN THE COURT OF SH DHARMENDER RANA Metropolitan Magistrate, West, Delhi State Vs. Anil Kumar Dabas FIR N0. : 441/95 U/S : 336/337/304A IPC PS : Rajouri Garden ORDER ON THE POINT OF SENTENCE 22.12.2011 Present: Ld. APP for the State.
Convict in person with counsel.
1. By way of the instant order I propose to dispose off the issue of appropriate sentence to the convict.
2. Ld. Defence counsel has submitted that the convict is a qualified engineer who has undergone the trauma of a long and arduous trial for 15 long years. It is further submitted that he is the sole bread earner of his family consisting of an old and aged mother and a young college going daughter. It is further submitted that due to the unfortunate incident the accused could not join a government job and he was constrained to earn his livelihood by pursuing private business. It is thus submitted that FIR No. 441/95 45 State vs. Anil Kumar Dabas accused deserves a lenient view.
3. It is submitted by the Ld. APP that every other day a building collapses in Delhi leading to future less families and support less orphans. It is submitted that in matters of like wise nature substantive sentence needs to be passed by the courts so that a deterrent message is sent to society. The Ld. APP has argued that the convict has committed one of the most abhorring crime and he deserves maximum punishment for the offence.
4. Sentencing of the accused is a sensitive exercise of discretion and cannot be a mechanical prescription or a perfunctory function.
The convict herein has put to air all the precautionary measures while constructing a night shelter for the destitute and downtrodden. The court takes judicial notice of the fact that every other day in Delhi a building collapses leading to helpless families and fortuneless orphans. It is not a case of mysterious tectonic movements making Delhi unstable rather a case of values being sacrificed at the alters of endless mundane desires. The rising incidents of building collapse is a matter of serious concern. Law must find an appropriate FIR No. 441/95 46 State vs. Anil Kumar Dabas answer to reinforce the values and check the venal tendencies. The decadence of moral values would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society cannot long endure under such serious threats.
5. It has been observed by the Hon'ble Apex Court in the matter of Dhananjoy Chatterjee vs. State of West Bengal (1994) 2 SCC 220: 1994 SCC (Cri) 358 that:
" This Court has observed that a shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate, making justice suffer by weakening the system's credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim FIR No. 441/95 47 State vs. Anil Kumar Dabas of the crime and the society at large while considering the imposition of appropriate punishment."
6. In the matter of Ravji vs. State of Rajasthan (1996) 2 SCC 175: 1996 SCC (Cri) 225 it has been observed by the Hon'ble Apex Court that: " It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal." If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance."
7. The conduct of the convict in the instant matter has been absolutely remorseless. He has tried to screen his guilt by FIR No. 441/95 48 State vs. Anil Kumar Dabas resorting to all possible ways and means. Any feeling of repentance on the part of convict is missing.
8. Considering the nature of offence, conduct of the convict during the course of trial and the social ramification of the offence , the convict is sentenced here as under:
S. Relevant Sentence Fine (Rs.). Comment No Section 1 Section 336 No separate IPC punishment is awarded as per provision of section 71 IPC.
2 Section 337 Rigorous Fine of Rs. One month
IPC imprisonment for a 500/. simple
period of six months. imprisonment
in default.
3 Section 304 Rigorous Nil. N.A.
A IPC. imprisonment for a
period of two years.
9. The convict is further directed to pay a sum of Rs.
2,00,000/ (Two lacs),by way of compensation, u/s 357(3) Cr.P.C. for the offence u/s 304 A IPC,to be paid to the Legal Representatives(L.R.) of deceased Munna Lal. The L.R.be intimated about the compensation amount through concerned FIR No. 441/95 49 State vs. Anil Kumar Dabas I.O. The L.R. shall be at liberty to move an appropriate application for withdrawal of the compensation amount with in an year from the date of order failing which the amount shall stand forfeited to the state. Both the punishment shall run concurrently. Ordered accordingly. Copy of the order be provided dasti to convict. File be consigned to record room.
(DharmenderRana) MM/Delhi/ 22.12.2011 FIR No. 441/95 50