Delhi District Court
Cr. Case/67823/2016 on 28 September, 2018
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
FIR No. : 81/2011
P.S. : Tilak Nagar
Case No. 67823/2016
State
v.
Kishan Pal, S/o Sh. Naubat Singh,
R/o Jhuggi No. 613, 12 1/2 Gaj, New Shyam Nagar,
Tilak Nagar, New Delhi.
Date of institution of case : 05.08.2011
Date of reserving the judgment : 24.09.2018
Date of pronouncement of judgment : 28.09.2018
JUDGMENT
1. S. No. of the Case: 67823/2016
2. Date of Commission of Offence: 20.03.2011
3. Date of institution of the case: 05.08.2011
4. Name of the complainant: Ram Ajor
5. Name of the accused: Kishan Pal
6. Offence complained or proved: 288/304A IPC
7. Plea of Accused: "Not Guilty"
8. Final Order: Accquited
9. Date of Final Order: 28.09.2018
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BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the case of prosecution is that on 20.03.2011 the wall (chhajja) at the First Floor of the Jhuggi No. 613, 12 1/2 Gaj, New Shyam Nagar, Tilak Nagar, Delhi belonging to the accused had fallen down and due to which the son of the complainant got injured and succumbed to his injuries in the hospital and the accident had happened due to the negligence of the accused for taking sufficient guard as the wall was a "kacchi wall" and was not cemented due to which the accident had happened. The present FIR was registered against the accused and after the completion of the investigation, the chargesheet was filed before the Court on 05.08.2011 under section 288/304A IPC. The cognizance of the offence was taken and summons were issued to the accused. Thereafter, section 207 CrPC was complied with upon the appearance of accused before the Court.
2. The notice was framed for offences punishable under section 288/304A IPC against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined seven witnesses. The deposition of the main witnesses in a nutshell are as below:
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• PW-1 Sh. Ram Ajor has deposed that on the 20th day of 2010, he alongwith his son went to the shop of Kishan Pal to purchase kurkure at 11:30 A.M. and a quarrel was taking place on the first floor of the house of accused and after the purchase, he tried to leave but the accused forcibly made him sit inside the shop and the accused also tried to push him due to which the hand of the son got slipped from his hand and suddenly the chhajja of the first floor collapsed due to the fight and the same fell on his son who got badly injured and was taken to the DDU Hospital and later on died. The witness further deposed that there was a "kacchi wall" built on the chhajja and the same collapsed due to the fight between 4-10 Nepali persons. The witness identified his thumb impressions upon the statement given to the police which is Ex.PW1/A, on the identification memo of the dead body of his son for the postmortem which is Ex.PW1/C and identified the photographs of the accident which are collectively Ex.P-1.
• PW-2 W/SI Rishali Yadav has deposed that on 20.03.2011, she was posted as Duty Officer at PS Tilak Nagar from 08:00 A.M. to 4:00 P.M. and on the said date she has received a rukka from Const. Sunil which was sent by ASI Gurcharan at about 03:50 P.M. and on the basis of which he has recorded FIR No. 81/11. The carbon copy of same is Ex.PW2/A (OSR).
• PW-3 Sh. Raja Ram and PW-4 Sh. Khaderu have identified their signatures upon the identification memo with regard to the FIR No. 81/11 State v. Kishan Pal 3 of 10 PS Tilak Nagar body of deceased Lakshman and their statement given to the police which are Ex.PW3/A, Ex.PW3/B, Ex.PW4/A and Ex.PW4/B respectively.
• PW-5 Const. Sukram Pal has deposed that on the receipt of information from Control Room he had went to the spot in Subhash Nagar Jhuggies being posted as Constable in the Mobile Crime Team and took the photographs of the first floor of the jhuggi which had fallen and one amputated hand. Witness has identified the photographs with their negatives which are Ex.PW5/A (Colly 10).
• PW-6 Const. Sunil Kumar has deposed that he went to the DDU Hospital alongwith ASI Gurcharan Singh on 20.03.2011 upon the receipt of DD No. 19A and came to know that the injured Lakshman was declared brought dead by Doctors vide MLC no. 5033 and the dead body was sent to the mortuary. They also met the father of the deceased in the hospital and the IO recorded his statement on the basis of which a tehreer was prepared and he had taken the same to the police station for the registration of FIR and came back to the spot, i.e., Jhuggi No. 613, Shyam Nagar alongwith the copy of FIR. The witness identified his signatures upon the arrest memo Ex.PW6/A and personal search memo Ex.PW6/B. • PW-7 SI Gurcharan Singh has deposed that he went to the DDU FIR No. 81/11 State v. Kishan Pal 4 of 10 PS Tilak Nagar Hospital alongwith Const. Sunil on 20.03.2011 upon the receipt of DD No. 19A and came to know that the injured Lakshman was declared brought dead by Doctors vide MLC no. 5033 and the dead body was sent to the mortuary. They also met the father of the deceased in the hospital. Thereafter, he went to the spot and called the Crime Team and got the photographs of the spot clicked and also found one amputated arm of the deceased lying at the spot which was seized vide seizure memo Ex.PW1/B and sent the same to mortuary, DDU Hospital. Thereafter, he recorded the statement of father of deceased on the basis of which a tehreer was prepared and Const. Sunil had taken the same to the police station for the registration of FIR and came back to the spot, i.e., Jhuggi No. 613, Shyam Nagar alongwith the copy of FIR. Thereafter, he arrested the accused and conducted his personal search and got the postmortem of the dead body conducted and tried to search the co- accused persons but could not find them.
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused. The same was recorded on 23.12.2017. The accused did not lead the defence evidence. Thereafter, the final arguments were heard and matter was kept for orders. I have given anxious and thoughtful consideration to the submissions of the accused persons and the state.
5. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
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Section 288 IPC. Negligent conduct with respect to pulling down or repairing buildings.
Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304A IPC . Causing death by negligence Whoever causes the death of any person 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.
6. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
7. To prove the case against the accused the prosecution was obliged to FIR No. 81/11 State v. Kishan Pal 6 of 10 PS Tilak Nagar prove that accused :-
- the incident occurred due to the negligence of the accused by not taking sufficient guards for preventing the wall at his first floor to fall,
- due to which the deceased Lakshman passed away.
8. It is argued by the counsel for the accused that no evidence has come on record to show that the wall which had fallen was from the house of the accused and further no documents has been placed on record to show the same and it has also come in the evidence of the IO during his cross examination. It is further stated by the counsel that it has come in the testimony of PW1 that the wall was cemented and the same has collapsed as some Nepali persons were fighting on the first floor, therefore, no negligence can be attributed to the accused. The counsel stated that the prosecution has failed to prove its case beyond reasonable doubt.
9. In the present case, on the basis of facts and the evidence that has come on record coupled with the cross-examination and the suggestions put during the cross-examination to the witnesses by the accused, it is an established fact that Lakshman has passed away on 20.03.2011 due to an accident and his hand also got amputated which was found at the place of accident as the accused admitted the genuineness of the medical as well as the postmortem report under Section 294 CrPC. Thus the only question which requires adjudication is whether the accident had occurred due to the negligence of the accused by not taking sufficient FIR No. 81/11 State v. Kishan Pal 7 of 10 PS Tilak Nagar safeguard with regard to the wall which had fallen and further the said wall had collapsed from his house.
10. The prosecution has not placed on record any document to show that the wall which has fallen belongs to the accused. The photographs which have been placed on record does not show the address of the jhuggi. The only witness is the father of the deceased namely PW1 Ram Ajor who has deposed that the wall of the chajja belongs to the accused and there are no other witnesses from the vicinity to depose that the wall from the first floor belonging to the accused had fallen. Even if the testimony of Ram Ajor is relied upon that the wall had fallen from the first floor of the house of the accused, there is nothing to indicate that the same had fallen due to the negligence of the accused or the accused did not take sufficient guards to prevent the wall from falling down. The PW1 Ram Ajor has admitted the suggestion during his cross examination that the wall which has collapsed was built with the cement. Further it has come in the testimony of the witness that the wall on the chhajja had fallen down as some Nepali persons were fighting at the first floor. There is no proper investigation with regard to those Nepali persons by the prosecution which could have thrown light whether a quarrel had actually taken place at the first floor of the house of the accused and the wall had collapsed due to the same. There is no damage report from an expert engineer who could have inspected the place of incident and gone through the structure in order to give the report whether the same was a proper built up structure or was a kaccha structure as stated by the prosecution or whether there was proper support to the wall on the chhajja or not.
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Unfortunately, a life has been lost but the negligence on the part of the accused is also not proved beyond reasonable doubt.
11. The evidence apparent on record is insufficient for basing the conviction for the accused. The benefit of doubt goes in favour of the accused and he is entitled to be exonerated. The burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
12. In case titled Partap v. State, AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that "The right of accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded."
13. In case tited Sharad Birdhichand Sarda v. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
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14. In view of above discussion, this Court is of view that the prosecution has not been able to prove its case beyond reasonable doubt. Benefit of doubt goes in favour of accused. Accordingly accused Kishan Pal is acquitted for the offences punishable u/sec. 288/304A IPC.
15. Bail Bonds u/s 437A of Cr.PC in the sum of Rs.10,000/- with the surety of like amount is to be furnished which would remain valid for a period of six months.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2018.09.28
17:24:27 +0530
Announced in open Court (ABHISHEK KUMAR)
on 28th day of September, 2018 Metropolitan Magistrate
West-05, Delhi
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PS Tilak Nagar