Delhi District Court
The State vs Rajpal Gandhi on 7 July, 2014
D.O.D 07.07.2014 FIR no. 491/06
P.S Alipur
u/s 285/337/338/436 /304 A IPC.
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 10/14
UID NO . : 02404R0636682008
FIR no : 491/2006
P. S : Alipur
u/s 285/337/338/436/304A IPC.
The State versus Rajpal Gandhi
S/O Govind Ramesh
R/O F-7/96, Sector 15, Rohini ,
Delhi
Date of committal to session court : 07.08.2010
Date of argument : 07.07.2014
Date of order : 07.07.2014
JUDGMENT
1. Brief facts of the case are that on 01.12.2006 at M/S B.N Enterprises, Shivalik International School, Seed farm road, Alipur a fire broke out. The said information was recorded at P.S Alipur vide DD no. 46 B. On receipt of said DD, S.I Dinesh Dahiya reached there and found that a dead body was lying near the Road Roller and one Alto Car bearing no. DL- 5C- D-1290 in burnt condition and canes of deodorants were lying scattered.
SC No.10/14 State vs Rajpal Gandhi (Page 1 of 14 )
D.O.D 07.07.2014 FIR no. 491/06
P.S Alipur
u/s 285/337/338/436 /304 A IPC.
2. It was revealed that injured persons have already been removed to the hospital . S.I Dinesh Dahiya reached BJRM Hospital and recorded statement of one Sarita. He made endorsement on her statement and got registered the present FIR. The Road Roller and the car and two containers of deodorant were lifted from the spot and were seized by the police. Crime team was called which inspected the spot and took the photographs. Fire Brigade officials also visited the spot and they gave their report. Injured were examined at BJRM Hospital . Dr. Ashish Jain conducted the postmortem on the body of deceased Raj Kumar and Dr.Anil Aggarwal conducted postmortem on the body of deceased Prafull Kumar. Due to the said incident, Rupam, Babli, Lalita, Laxmi, Sita Ram and Ajay sustained simple injuries, one Sita Ram sustain grievous injury and two persons namely Raj kumar and Praful Kumar died.
3. According to the prosecution , the workshop / godown in the aforesaid premises were taken on rent and were meant for keeping expired deodorants. The said deodorants were used to taken out from the boxes and thereafter, they used to be kept in a gunny bags and those gunny bags were used to be spread on the ground of the school and thereafter, roller machines were used to press those canes of deodorants so that the material inside those canes comes out.
SC No.10/14 State vs Rajpal Gandhi (Page 2 of 14 )
D.O.D 07.07.2014 FIR no. 491/06
P.S Alipur
u/s 285/337/338/436 /304 A IPC.
The said material was inflammable. It is alleged that there was no fire extinguisher in that building and there were no safety measures to protect the persons working there.
4. According to the prosecution , the aforesaid entire work was being done under the supervision of accused Rajpal Gandhi , who has taken the aforesaid premises on rent to store the expired deodorants . It is alleged that fire took place due to the accumulation of inflammable gas in the lower side of the engine of the Roller during crushing of deodorants canes by the roller.
5. After the completion of investigation, accused was chargesheeted for offence 285/337/338/304A/436 IPC .
6. Vide order dated 1.5.2010, Ld ACMM took the cognizance of the offences and subsequently, since the offence u/s 436 IPC was exclusively triable by the court of sessions, therefore, case was committed to the court of sessions on 07.08.2010.
7. Vide order dated 19.4.2011, ld predecessor of this court decided the charges and accordingly, charges for the offences u/s 285/337/338/304A/ 436 IPC were framed against the accused to which SC No.10/14 State vs Rajpal Gandhi (Page 3 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
accused pleaded not guilty and claimed to be tried.
8. In order to prove its case, prosecution has examined as many as nineteen witnesses.
9. PW1 Dalip Kumar and PW2 Kamal are the witnesses who identified the dead body of Raj Kumar (deceased) vide ExPW1/A and ExPW2/A respectively.
10. PW3 Shri Nath Chaubey identified the dead body of deceased Prafull Kumar vide ExPW3/A and received the dead body vide ExPW3/B.
11. PW4 Mahender Singh on 1.12.2006 was posted as MHC(M) P.S Alipur. He deposed that on that day two bottles duly sealed with the seal of DD was deposited by S.I Dinesh Dahiya with him and proved the entry in register no.19 in this regard as ExPW4/A. He deposed that on 21.5.2008, the said pullanda with the seal was sent to FSL rohini through Ct. Ashok vide RC no. 45/21/08 ExPW4/B.
12. PW5 Dr. Ashish Jain conducted postmortem on the body of deceased Raj Kumar and prepared detailed report ExPW5/A in this SC No.10/14 State vs Rajpal Gandhi (Page 4 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
regard.
13. PW6 Ct. Hari Prakash is the witness who was with the IO during investigation.
14. PW7 Sh Dharam pal is the registered owner of Road Roller, who got released his Road Roller on superdari vide supurdginama ExPW7/A.
15. PW8 HC Mahendra Singh is the witness whose examination in chief was deferred ( This witness was examined later on as PW13) .
16. PW9 S.I Suraj Bhan was posted as I/C Crime Team North West District on 1.12.2006. on that day on receipt of information he reached at the spot, inspected the spot and prepared report ExPW9/A.
17. PW10 Ct. Ashok Kumar is the witness who on 21.5.2008 on the instruction of IO,deposited the sealed pullanda to FSL , Rohini and handed over the receipt to MHC(M).
18. PW11 HC Om Prakash is the duty officer who proved the SC No.10/14 State vs Rajpal Gandhi (Page 5 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
DD no. 46 B as ExPW11/A and DD no. 47 B as ExPW11/B. He also proved the FIR ExPW11/C and his endorsement on the rukka as ExPW11/D.
19. PW12 Mr. Dinesh Kumar is witness from Delhi Fire Service headquarter, Cannaught Place. He deposed that the incident of fire occurred at near BDO Office, Alipur, delhi on 1.12.2006 and was attended by Division Officer A.K Gupta alongwith his team who prepared fire report ExPW 12/A. The office report dated 08.2.2008 prepared by Mr. Suresh Sing, Asst Divisional Officer is ExPW12/B.
20. PW13 HC Mahender is the member of the Mobile crime team which on 1.12.2006 reached at the spot and on the directions of the IO , he took photographs ExPW13/A-1 to A-18 and proved the negatives of the same as ExPW13/B collectively.
21. PW14 S.I Jagdish Chand is the witness who on 6.12.2006 recorded statement of Shri Nath Chaubey and Ram Sewak ExPW3/A and ExPW14/A regarding identification of dead body of Prafull Kumar. He also got conducted the postmortem of dead body of Prafull Kumar and handed over the same to the relatives of the deceased. He further deposed that on 30.5.2007, the investigation of the present case was SC No.10/14 State vs Rajpal Gandhi (Page 6 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
entrusted to him. He obtained the result of MLC of injured persons and reports from Delhi Fire Office. After completion of investigation, he filed the chargesheet.
22. PW15 Sh Suresh Singh is the witness from Head quarter Delhi Fire service. He proved the report ExPW12/C which was prepared by him.
23. PW16 S.I Dinesh Dahiya deposed that on 1.12.2006 on receipt of DD no.46 B regarding fire at M/S B.N Enterprise, Shivalik International School, SEED Farm Road, Alipur, he reached at the spot and found that a dead body was lying near the road roller. The road roller and one Alto Car were found in burnt condition and containers of deodorants were lying scattered. Injured persons were removed to the hospital. He also reached BJRM Hospital and recorded the statement ExPW16/A of one Sarita and make endorsement ExPW16/B on her statement and got registered the FIR ExPW11/C. He prepared the site plan ExPW16/C. Road Roller was taken into possession vide memo ExPW6/A and Alto Car bearing no. Dl -5CD-1290 was seized vide seizure memo ExPW6/E. Two containers of Deodorants were sealed with the seal of DD and seized vide memo ExPW6/B. He arrested accused Rajpal Gandhi vide arrest memo ExPW6/C and carried out his personal SC No.10/14 State vs Rajpal Gandhi (Page 7 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
search vide memo ExPW6/B. He further deposed that he also got conducted the the postmortem of Rajkumar on 3.12.2006 and after postmortem dead body was handed over to the legal heirs of the deceased vide memo ExPw16/C. On 6.12.2006 after the postmortem of dead body of deceased Prafull kumar, his body was handed over to his legal heirs . He further deposed that during investigation he collected the report of crime team and the photographs and thereafter he was transferred. PW16 was cross examined by the ld counsel for the accused.
24. PW17 Parshuram Singh , Asst Director Physics FSL, Rohini deposed that on 4.12.2006 , he was posted as SSO in FSL, Rohini and on that day he had visited the spot alongwith Rajiv Negi SSA(Photo) and inspected the spot and prepared report ExPW17/A. He further deposed that as per his observation the fire could have broken out due to accumulation of inflammable gas in the lower side of the engine of the roller during crushing of deodorant containers by roller. Possibility of ignition from high temperature of sparking of the silencer of the roller cannot be ruled out.
25. PW18 HC Ravi Prakash is the witness who was on duty at channel no.123 from 2 pm to 8 pm. At about 5:12 pm, on receiving the SC No.10/14 State vs Rajpal Gandhi (Page 8 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
100 number call to the effect that "seed farm road, alipur, nai pulia ke pass factory me aag" . On receiving the said information he filled up the form and handed over the same to the concerned official at wireless for onward transmission. He deposed that the official record of the abovesaid form was destroyed vide order of DCP dt . 31.5.2010.
26. PW19 Sh Ajay Kumar is the public witness who deposed that in the year 2006 he was assisting in the audit of Hindustan Lever ltd and the said company was having godown/workshop at B.N Enterprises, Seed farm road, Alipur, Delhi and said workshop was situated in the building of Shivalik International School which was on rent. The said workshop was meant for keeping deodorants which were expired. He has seen the work of crushing the expired deodorants by road roller so that the material inside those canes comes out and the said material used to evaporate. The said material was inflammable also. There were no fire extinguisher in that building and there was no safety majors to protect the persons working there if any untoward incident takes place. On 1.12.2006 , fire broke out there he also sustained injuries/burn marks on his face and and both hands and right ear lobe . He further deposed that the incident has taken place to negligence and illegal act of the occupant/owner/tenant of the company where the workshop was being run. He was cross examined SC No.10/14 State vs Rajpal Gandhi (Page 9 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
by the ld counsel for the accused.
27. Here it is pertinent to mention that during the trial, ld counsel for the accused has admitted the MLC of Praphul Kumar, Laxmi , Sarita , Rupam, Babli, Lalita , Sita Ram and Ajay , Post mortem report of Prafull Kumar given by Doctor and in this regard statement of the ld counsel for the accused was recorded on 6.12.2013 whereby the documents were given exhibit marks as ExPAdv.1 to ExPAdv 8, PMR as ExPAdv 9 and ExPAdv 10 respectively. On 24.6.2014 , ld Counsel for the accused as well as accused has also admitted the CFSL result and in this regard their statement was also recorded on that day and CFSL result was given exhibit mark as ExADV 1.
28. Thereafter prosecution evidence was closed and statement of accused u/s 313 Cr. PC was recorded. During the statement u/s 313 CrPC. Accused denied all the allegations made against him. He did not opt to lead any evidence in his defence.
29. I have heard the Ld Chief prosecutor for the state and the ld counsel for the accused. I have also perused the record very carefully.
SC No.10/14 State vs Rajpal Gandhi (Page 10 of 14 )
D.O.D 07.07.2014 FIR no. 491/06
P.S Alipur
u/s 285/337/338/436 /304 A IPC.
30. Accused Rajpal Gandhi has been charged for offences u/s 285/337/338/304 A/436 IPC. The offence u/s 285/337/338/304 A talks about rash or negligent conduct on the part of the accused. Section 285 IPC starts with " whoever does, with fire or any combustible matter, any act so rashly or negligently ....". Section 337 IPC starts with "
whoever caused hurt to any person by doing any act so rashly or negligently ...". Section 338 IPC starts with "whoever caused grievous hurt to any person by doing any act so rashly or negligently ...". Section 304 A IPC provides punishment for causing death by rash or negligent act. These aforesaid sections do not ask intention or knowledge on the part of wrong doer to held him responsible for his conduct .
31. Section 436 IPC says that whoever commits mischief by fire or any explosive substance, intending to cause or knowing it to be likely that he will thereby cause, the destruction of any building, shall be punished with the imprisonment as provided under the provision. The term 'mischief' has been defined u/s 425 IPC and when there is mischief by fire or explosive substance, the offender is liable u/s 436 IPC.
32. If the testimony of prosecution witnesses is put to close scrutiny, it becomes crystal clear that there is no evidence against the SC No.10/14 State vs Rajpal Gandhi (Page 11 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
accused to hold that accused was having control or supervision over the work of crushing the canes of deodorants in the ground of the school premises. As per the story of the prosecution the said building belongs to M/S B.N Enterprises and accused caused damage to that building by fire but prosecution has not brought anything on record to show that accused was actually responsible for the incident in question. It has not been explained as to how the accused was related to B.N Enterprises? who has taken the said premises on rent ? who was the owner of those premises ? Under whose permission the canes of expired deodorants were being kept there ? What was the mode of payment of rent to the landlord? Whether it was a oral tenancy or otherwise? etc,.
33. During the cross examination, PW16 S.I Dinesh Dahiya , who is the initial IO, replied that during the investigation he was able to find out the owner of the premises where the fire broke out but he does not remember his name. He admitted that he did not record the statement of the owner of the building about the damage caused to his building. He also admitted that he has not placed on record any documents showing that accused was running business at the above stated premises.
SC No.10/14 State vs Rajpal Gandhi (Page 12 of 14 )
D.O.D 07.07.2014 FIR no. 491/06
P.S Alipur
u/s 285/337/338/436 /304 A IPC.
34. It is true that during cross examination of PW19 Ajay , it was reflected that the work of crushing was being done under the supervision of accused Rajpal present in the court but the said deposition itself is not sufficient in the background of the fact that there is nothing on record at all which could support or corroborate the aforesaid reference as made by PW19 . Even public witness PW19 has deposed that he was assisting in the Audit of Hindustan Lever Ltd and the said company was having godown/workshop at B.N Enterprise, Seed farm road, Alipur , Delhi. He further deposed that incident had taken place due to negligence and illegal of the occupant , owner/tenant of the company where this godown /workshop was being run. Prosecution has miserably failed to prove that accused Rajpal Gandhi had taken the aforesaid premises on rent and he was responsible for the incident.
35. During the statement recorded u/s 313 CrPC, accused has given probable explanation of his presence at the spot. He has not denied that the Alto car bearing no. DL- 5C- D-1290 belongs to him which also got burnt. He has also not denied the factum of breaking out of fire but he stated that he simply had visited there to buy the waste of the empty cane and fire broke out . Mere presence of the accused or his vehicle at the spot is not sufficient to hold that accused SC No.10/14 State vs Rajpal Gandhi (Page 13 of 14 ) D.O.D 07.07.2014 FIR no. 491/06 P.S Alipur u/s 285/337/338/436 /304 A IPC.
acted so rashly or negligently due to which incident took place. Prosecution has also failed to bring on record the sufficient evidence to prove beyond reasonable doubt that accused had set fire the said premises to held him liable for the offence u/s 436 IPC.
36. The medical and scientific evidence produced by the prosecution may be relevant to prove that some laborers were working at the spot who sustained injuries and two of them expired but the same also is not sufficient to fix the accused for the alleged offences.
37. In the background of the fact, the prosecution having failed to establish and prove the allegations against the accused and having failed to bring on record any evidence against him to connect him conclusively to the commission of the offence, benefit of doubt is being given to the accused Rajpal Gandhi, who is hereby acquitted of the charges under Section 285/337/338/436/304 A IPC . His surety stands discharged.
38. File be consigned to Record Room after compliance of section 437(A) CrPC.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 07.07.2014 ASJ-5, North/ Rohini Court
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