Delhi District Court
State vs . Lukman Khan on 29 June, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. LUKMAN KHAN
FIR No. 606/09
U/s : 288/336/34 IPC
P.S. : Malviya Nagar
Date of Institution : 03.06.2009
Date on which case reserved for Judgment : 05.06.2018
Date of judgment : 29.06.2018
JUDGMENT
1.FIR No. of the case : 606/09
2.Date of the Commission : 08.08.2008
of the offence
3.Name of the accused : Lukman Khan,
: S/o Sh. Yaseen Khan,
: R/o 776, Chirag Delhi,
: New Delhi.
: Note: Accused Suresh Ahuja has been
: declared absconder vide order dated
: 21.01.2015.
4.Name of the complainant : Sh. Anil Kumar,
: S/o Late Shree Kishan Gupta,
: R/o 731, Chirag Delhi,
: New Delhi.
:
5.Offence complained of : U/s 288/336/427/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted for the offences alleged.
FIR No. 606/08 State Vs. Lukman Khan. 1/9
BRIEF FACTS:
1. The present judgment is directed against the accused Lukman Khan as the coaccused Suresh Ahuja has been declared absconder vide order dated 21.01.2015.
2. Briefly stated the case of the prosecution is that on 08.08.2008 at about 05:00 pm at H. No. 728B, Punjabi Bagh Mohalla, Chirag Delhi, New Delhi within the jurisdiction of PS Malviya Nagar, accused Lukman Khan alongwith coaccused Suresh Ahuja in furtherance of their common intention negligently omitted to take such precaution in getting the work done on the old building in their possession, which was sufficient to safeguard against any probable danger to human life from such old building. Further, the accused persons were reconstructing the above said old building without any precaution or care so rashly and negligently as to endanger human life or the personal safety of others and while doing so, the sixth floor of building collapsed and caused damage to the nearby buildings and thereby the accused persons committed the offences punishable U/s 288/336/427/34 IPC.
3. FIR No. 606/08 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
4. After completion of investigation charge sheet under sections 288/336/427/34 IPC was filed before the court on 03.06.2009.
5. On the basis of prima facie material available on the record charge for the offences punishable under section 288/336/427/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial on 26.07.2012.
THE TRIAL PROCEEDINGS:
6. In order to establish its case against the accused Lukman Khan, the FIR No. 606/08 State Vs. Lukman Khan. 2/9 prosecution has examined twelve witnesses.
7. PW1 was the complainant Sh. Anil Kumar. He exhibited his complaint to the police as Ex. PW1/A
8. PW2 Sh. Mukesh Ahuja, PW3 Sh. Ashok, PW4 Sh. Satender Prakash and PW5 Sh. Satpal Mehra were the residents of Chirag Delhi i.e. the place of incident and they deposed about the alleged incident.
9. PW6 was the photographer Sh. Mahesh Kumar who took eleven photographs of the collapsed building in Chirag Delhi. He exhibited the eleven photographs as Ex. P1 to Ex. P11 and negatives as Ex. P2 (colly).
10. PW7 was HC Hawa Singh who deposited the sealed katta (bag) of construction material in the FSL, Rohini for forensic examination.
11. PW8 was the Duty Officer (DO) ASI Kuldeep Singh who received the rukka and got the FIR registered. He exhibited the copy of the FIR as Ex. PW8/B and his endorsement on rukka as Ex. PW8/A.
12. PW9 was ASI Sheo Ram. He exhibited the seizure memo of sealed plastic katta of construction material as Ex. PW9/A, fifteen photographs of the spot as Ex. P1 to Ex. P11 and Ex. A1 to Ex. A4 and one broken piece of used construction material attached with one Sariya as Ex. M1.
13. PW10 was the Investigating Officer (IO) of the case SI Bijender Singh. He exhibited the site plan as Ex. PW10/A and arrest memo of accused as Ex. PW10/B.
14. PW11 was the second Investigating Officer (IO) of the case SI Amit Chaudhary who filed the supplementary chargesheet with FSL result before the Court.
15. PW12 was the Assistant Director (Physics), FSL, Rohini Dr. C.P. Singh. He exhibited his report as Ex. PW12/A. FIR No. 606/08 State Vs. Lukman Khan. 3/9
16. The witnesses PW11 and PW12 were examined upon the application of Ld.APP for the State U/s 311 Cr.P.C. being allowed vide order dated 20.01.2018.
17. Prosecution evidence was closed on 28.10.2017. After conclusion of prosecution evidence, the Statement of Accused (SA) under section 313 r/w section 281 Cr.P.C was recorded on 13.11.2017. Accused sought to lead defence evidence.
18. Accused examined himself u/s 315 Cr.P.C. as DW1 and Sh. Ramavtar, Sh. Hemant and Sh. Dheeraj Kumar as DW2, DW3 and DW4 respectively. Thereafter, accused closed Defence Evidence (DE).
FINAL ARGUMENTS:
19. Final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused. Heard the arguments. Perused the record.
REASONS FOR DECISION:
20. In order to bring home the guilt of the accused Lukman Khan, the prosecution was required to prove that the alleged construction work was being carried out by the accused Lukman Khan and that he was carrying out the construction work in a rash or negligent manner omitting to take such precaution in getting the work done as was required which caused the building to collapse as a result of which damage was suffered by the nearby buildings.
21. It is well settled law that for any party to prove its case in the Court the best evidence must be produced by it. Failure of a party to produce the best evidence without just cause would require an adverse inference to be drawn against such party.
22. In the present case, the prosecution was required to produce the best evidence to establish its case that the accused Lukman Khan was the person responsible for the construction work which was being carried out in the property in FIR No. 606/08 State Vs. Lukman Khan. 4/9 question being either the owner, builder or contractor responsible for the construction. If as per the prosecution the accused Lukman Khan was the owner of the building in question then the best evidence required to have been produced by the prosecution in this regard was the sale deed /property documents showing the accused to be the owner. This has not been done. In fact, the accused adduced in defence evidence the chain of property documents of the property in question (plot no. 728 Chirag Delhi village) i.e. the certified copies of the registered sale deed between one Sh. Hari Chand and Ms. Usha Devi dated 21.06.1985 sale deed between Usha Devi and Suresh Ahuja registered on 25.04.2008 both of which form part of Ex. DW1/B (colly) and the certified copy of the sale deed for the ground floor corner side shop no. 1 alongwith common toilet/bath in parking area of property no. 728, village Chirag Delhi registered on 09.06.2008 between Suresh Ahuja and the wife of accused Lukman Khan namely Anjum Khan i.e. Ex. DW1/A. It has been the defence of the accused all along that his wife had purchased only one shop in the building in question and for this reason he used to visit the property in question.
23. The accused Lukman Khan put a suggestion to PW1 Sh. Anil Kumar that the accused had purchased a shop in the building in his wife's name but PW1 expressed his ignorance regarding the same. PW5 Sh. Satpal Mehra was also put this suggestion by the accused and was also put the suggestion that the accused Lukman Khan for the reason of having purchased the shop used to visit the site where the building collapsed but he also deposed that he did not know about the same. The sale documents produced by the accused in evidence clearly show that wife of the accused was only the owner of one shop of the property in question and the accused Suresh Ahuja (since absconder) was the owner of the entire remaining building. The prosecution has not adduced any evidence to the contrary and in fact FIR No. 606/08 State Vs. Lukman Khan. 5/9 has not even set up the case that the accused Lukman Khan was the owner of the property in question.
24. PW9 ASI Sheo Ram deposed in cross examination that he did not know the name of the owner of the plot volunteering that the complainant told him it was Usha Devi and the IO told him that Suresh Ahuja and Lukman Khan were the builders.
25 Now if the prosecution's stance is that the accused Lukman Khan was the builder or contractor of the property in question then the prosecution was under
the duty to adduce in evidence any such agreement pertaining to the construction of the property, collaboration agreement etc or any other document to show that the accused Lukman Khan was a builder or contractor by profession at the relevant time but no such document has been adduced in evidence by the prosecution and no valid explanation for the same has been provided by the prosecution.
26. The IO/PW10 SI Bijender Singh admitted in cross examination that no document showing the accused Lukman Khan as the builder of the collapsed building was recovered or found from the actual owner of the plot and from accused Suresh Ahuja. PW10/IO also deposed that he made inquiry from Usha Devi, actual owner of the plot no. 728B on which the construction was going on and she stated that she had sold the property to Suresh Ahuja and all the documents of the property were handed over to Suresh Ahuja. PW10/IO further deposed that he did not take any legal steps for production of the sale deed and collaboration agreement from the accused persons.
27. Although PW10/IO denied the suggestion that accused Lukman Khan used to come to the premises of the alleged plot for seeing the shop purchased by Anjum Khan however in view of the documents i.e. the sale deeds Ex. DW1/A and Ex. DW1/B (colly) this defence of the accused Lukman Khan appears to be a FIR No. 606/08 State Vs. Lukman Khan. 6/9 probable one.
28. According to the testimony of PW1 Sh. Anil Kumar at the time, construction work of the building was going on and labourers were working at the spot but no labourer has been cited and joined as a prosecution witness and no receipts of wages if any, purported to be issued by the accused Lukman Khan to the labourers carrying out the construction work in question has been filed and proved in evidence.
29. Furthermore if the accused Lukman Khan was the builder or contractor then there would have been bills/invoices or receipts in the name of the accused regarding the construction material purchased for the purpose of the construction being carried out in the plot in question but no such invoice was ever collected by the IO nor were the statements of any shopkeepers /retailers recorded from whom the building material was purchased to connect the accused Lukman Khan with the defective construction carried out in the building in question.
30. The accused has shown in defence evidence that the only concern he had was with the shop at the ground floor of the property in question which was purchased in the name of his wife. It is not the case of the prosecution that the construction work was going on only in the ground floor shop portion rather it is that the work was going on in the entire building. The prosecution has failed to adduce any cogent documentary evidence to show that the accused Lukman Khan had been given the task of the construction of the entire building by the owner of the building.
31. The investigation conducted by the IO leaves a lot to be desired. It seems that the IO/PW10 merely treated the statements of some of the locality persons regarding the accused Lukman being one of the builders as the gospel truth and made no independent efforts during investigation to ascertain the role if any in FIR No. 606/08 State Vs. Lukman Khan. 7/9 the defective construction work of the accused Lukman Khan by way of relevant documentary evidence. In fact, PW1/complainant Sh. Anil Gupta was uncertain regarding the status of the accused qua the property in question during trial deposing in crossexamination that he was not sure whether accused Lukman Khan was the owner of the collapsed building nor did he know if any agreement had taken place between Suresh Ahuja, Parveen Sharma, Naveen Sharma and Satender Jain regarding the way of construction.
32. PW5 Sh. Satpal Mehral also deposed in his crossexamination that he was not sure who was constructing the building in question though he used to see Ahuja and the accused at the site where the building collapsed. It is true that the witnesses PW2 Sh. Mukesh Ahuja, P3 Sh. Ashok and PW4 Sh. Satender Prakash Bansal were not cross examined by the accused however as observed earlier, the best evidence in the form of documentary evidence regarding construction agreement/collaboration agreement or document to show that the accused Lukman Khan was the builder or contractor of the building in question, invoices/receipts of construction or labour cost signed by the accused etc have not seen the light of day and the only presumption that arises in such a case is that the accused had no concern with the construction work of the building in question hence there are no such documents to show the involvement of the accused Lukman Khan as the builder or contractor of the collapsed building. The mere oral testimony of the prosecution's witnesses does not suffice where the documentary evidence was required to be adduced in evidence.
33. The accused examined himself in defence evidence as DW1 deposing clearly that he was neither a builder nor contractor nor was he the owner of the entire property no. 728 Chirag Delhi, New Delhi and he also stood firm to his stand during crossexamination. Nothing favourable to the prosecution's case could be FIR No. 606/08 State Vs. Lukman Khan. 8/9 elicited through the crossexamination of the accused.
34. The prosecution on its part has miserably failed to prove the first and foremost ingredient that the accused Lukman Khan had anything to do with the construction work in the collapsed building in question. The defence of the accused that he used to visit the shop in the building purchased in the name of his wife appears to be a probable one in light of the certified copy of the sale deed between Suresh Ahuja and Anjum Khan (wife of the accused Lukman Khan) for the shop in the property adduced by the accused in evidence. That being the case, the accused cannot possibly be held accountable for any rashness or negligence in the construction work and alleged consequent collapse of the building and resultant damage to the surrounding buildings.
35. The benefit of the doubt must be extended to the accused Lukman Khan. Accused Lukman is accordingly acquitted for the offences U/s 288/336/427/34 IPC.
36. The previous bail bond of the accused Lukman Khan shall remain in force for a further period of six months from today. Nothing further remains in the case, therefore file be consigned to record room with the direction to reopen the same as and when any clue regarding the absconder accused Suresh Ahuja is found.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.06.29
16:23:45 +0530
Announced in the Court (ANJANI MAHAJAN)
on 29.06.2018 MM02(SD)/29.06.2018
Certified that this judgment contains 9 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.06.29
16:23:56 +0530
(ANJANI MAHAJAN)
MM02(SD)/29.06.2018
FIR No. 606/08 State Vs. Lukman Khan. 9/9