Delhi District Court
State vs . Dulare Miyan @ Guddu & Anr. on 9 October, 2018
IN THE COURT OF MS. DEEPTI DEVESH: MM, KKD, DELHI
State Vs. Dulare Miyan @ Guddu & anr.
FIR No.: 485/11
P.S.: Jyoti Nagar
U/Sec.: 288/304 A IPC
JUDGMENT :
Srl. No. of the case & Date of 77898/16 dt. 25.02.2013
institution
Date of commission of offence 28.12.2011
Name of the complainant Sh. Azad Singh
Name of the accused 1. Dulare Miyan @ Guddu
S/o. Sh. Maiku Miya R/o. Kasba
Sahjwan Tehsil Saswan Mohalla
Mirza Tola District Badayun UP.
2. Mudassar @ Bhola
S/o. Azaz Hussain R/o. Kasba
Sahjwan Tehsil Saswan Mohalla
Dehliz District Badayun UP.
Nature of offence complained of U/S. 288/304 A IPC
Plea of the accused person Accused persons pleaded not
guilty
Date of reserving order 08.10.2018
Final Order Acquitted
Date of order 09.10.2018
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1.In the present case, accused persons are facing trial FIR No. 485/11 State vs. Dulare Miyan & anr. Page No. 1 for offences punishable under Section 288/34 IPC and Section 304A IPC on the allegations that on 28.12.2011 at about 3:15 p.m., at H.No. 94, Gali No.3, 2nd Floor, Durga Puri Extension, Delhi, falling within the jurisdiction of PS Jyoti Nagar, accused persons in furtherance of their common intention omitted to take due care and caution while pulling down abovesaid house, due to which a part of the said house fell on the deceased Noor Mohd. who succumbed to his injuries at the spot itself.
2. After completion of investigation, charge sheet was filed on 25.02.2013 on which date, cognizance was also taken. Copy of charge sheet was supplied to accused persons on 05.04.2013 and notice for offences punishable under Section 288/34 IPC and sec. 304A IPC was given on 17.05.2013 to both accused persons, to which they pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined four witnesses.
4. PW 1 is the owner of the abovesaid house and he deposed that he had given contract of demolition of his house to accused Dulare Miya and on the day of the alleged incident, he was not present at the time of the incident but came after and saw the deceased lying under the debris of the abovesaid house.
FIR No. 485/11 State vs. Dulare Miyan & anr. Page No. 2Thereafter, he was crossexamined and discharged on 25.05.2015.
5. PW2 has accompanied IO to GTB Hospital where MLC of the deceased was collected and he got the deceased identified and also prepared handing over memo Ex. PW2/A. Thereafter, he was crossexamined and discharged on 11.10.2017.
6. PW3 is public witness who has witnessed arrest of accused Dulare Miya vide memos Ex. PW3/A and Ex. PW3/B and formal arrest of accused Mudasar vide Ex. PW3/C and Ex. PW3/D. He also proved the written agreement dated 15.12.2011 for pulling down of the abovesaid house Ex. PW3/E (OSR). Thereafter, he was crossexamined and discharged on 11.10.2017.
7. PW4 has deposed that on 28.12.2011, he was on patrolling duty when he reached at the spot but did not find any eyewitness. He further deposed that he met IO who handed over rukka for registration of FIR and he went to PS for the same. He further deposed that he came back at the spot and IO prepared seizure memo Ex. PW4/A and took photographs of the spot. He further deposed that he witnessed arrest of both accused on 02.01.2012 and 27.01.2012 respectively. Thereafter, he was FIR No. 485/11 State vs. Dulare Miyan & anr. Page No. 3 crossexamined and discharged on 07.05.2018.
8. Prosecution witnesses, examined and unexamined, are not eyewitnesses and therefore, no witness has been able to show presence of accused persons at the spot at the time of the alleged incident. Furthermore, the necessary ingredient for offence punishable u/s. 288 IPC is to establish lack of due care and caution by the person incharge of pulling down or repairing any building. In the present case, none of the public witness has deposed as to negligence of accused persons regarding pulling down of abovesaid house. Merely the fact that the accused persons had been given the contract to pull down the abovesaid house, does not make them responsible for the alleged offences as it is the duty of the prosecution to establish beyond reasonable doubt the exact role of accused persons of their alleged negligence / omission, which resulted in the death of the deceased. None of the PWs have deposed that due care and caution was not taken by the accused persons or that it was due to the negligence of the accused persons that the deceased came under the debris of the abovesaid house.
9. Remaining public witnesses were witnesses as to identification of the body of the deceased and other PWs are official witnesses only. Thus, none of the remaining witnesses can FIR No. 485/11 State vs. Dulare Miyan & anr. Page No. 4 also depose as to the alleged negligence of the accused persons.
10. No other PW was examined by the prosecution and PE was closed vide order 08.10.2018 as no witness could depose as to the culpability of accused persons on account of their alleged negligence / ommission at the time of alleged incident. Vide order dated 08.10.2018, recording of statement of accused persons u/s. 313 Cr.PC was dispensed with as nothing incriminating has come against them.
11. Final arguments were heard at length from Ld. APP for the State and counsel for accused. Record has been perused.
12. As already discussed above, in the present case, no prosecution witness has deposed about alleged negligence / ommission of accused persons at the time of alleged incident at the spot. None of the other remaining prosecution witnesses are also eyewitnesses. The fact that accused persons are responsible for the present offences due to their alleged negligence / ommission can be proved only by an eyewitness. In the present case, since there is no eyewitness, prosecution can never prove the alleged offences against the accused persons. Thus, there is no evidence on record to prove offence under Section 288 IPC against the accused persons.
13. Since prosecution has failed to prove offence FIR No. 485/11 State vs. Dulare Miyan & anr. Page No. 5 punishable under Section 288 IPC against the accused persons, offence under Section 304A IPC is also not made out against the accused persons as it is the case of the prosecution itself that deceased expired due to injuries caused due to alleged incident. Since, it has not been proved that accused persons were negligent, therefore, prosecution has failed to prove even offence under Section 304 A IPC against the accused persons.
14. In view of the above discussion, due to lack of direct or circumstantial evidence against the accused persons, accused persons namely Dulare Miyan and Mudassar are acquitted of the offences punishable U/Sec. 288/34 IPC and sec. 304 A IPC. (Typed upon dictation directly on court computer and announced in the open Court today dt. 09.10.2018) (Deepti Devesh) Metropolitan Magistrate04 (SHD) Karkardooma Court, Delhi Digitally signed by DEEPTI DEVESH DEEPTI Location:
Shahdara District, DEVESH Karkardooma
Courts, Delhi
Date: 2018.10.09
17:34:27 +0530
FIR No. 485/11 State vs. Dulare Miyan & anr. Page No. 6