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[Cites 10, Cited by 0]

Delhi District Court

State vs . Adesh Gambhir And Sushant Gambhir on 21 December, 2022

          IN THE COURT OF SH. PRANAV JOSHI
          METROPOLITAN MAGISTRATE­03, NORTH,
                ROHINI COURTS, DELHI

State Vs. Adesh Gambhir and Sushant Gambhir
FIR No. 495/10
PS Model Town
U/s. 288/337/304A IPC
CIS No. 5284603/2016
                       JUDGMENT

1) The date of commission        :   23.12.2010
   of offence

2) The name of the complainant : SI Ranbir Singh

3) The name & parentage of accused : 1) Adesh Gambhir S/o Late Sh. Madan Lal Gambhir

2) Sushant Gambhir S/o Late Sh. Madan Lal Gambhir

4) Offence complained of : U/s. 288/337/304A IPC

5) The plea of accused : Pleaded not guilty

6) Final order : Acquittal

7) The date of such order : 21.12.2022 Date of Institution : 06.01.2012 Judgment reserved on : 21.11.2022 Judgment announced on : 21.12.2022 THE BRIEF REASONS FOR THE JUDGMENT:

1. Briefly stated the case of the prosecution is that on 23.12.2010 at about 11:00 a.m.at Kothi no. 247, Gujrawalan Town­ III, Delhi, within the jurisdiction of Police Station Model Town both the accused being the owner of the above said property while getting it constructed, negligently omitted to take such precautions with that building as was sufficient to guard against any probable danger to human life from the fall of that building and due to this, when the labourers were excavating mud near the wall, the wall fell down and two labourers namely Raj Kumar and Dharmender Kumar got buried underneath the collapsing wall. Deceased Dharmender Kumar succumbed to his injuries and Rajkumar sustained simple injuries. Both the accused were charged under section 288/337/304A IPC.

2. After completion of investigation, charge­sheet for offence u/s 288/337/304A IPC was filed against the accused persons whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr. P.C, arguments on charge were heard and vide order dated 26.04.2012, notice was served to both the accused for offence u/s 288/337/304A IPC to which they pleaded not guilty and claimed trial.

3. The prosecution examined nine witnesses. PW­1 Sh. Ritesh Chawla deposed that on 23.10.2010 at about 10:40 a.m. he was coming from Shani Mandir Via Lala Anchint Ram Marg and when he reached at Plot no. 247, Gujranwala Town, Part­III, Delhi, he saw many labourers were working in the plot and soil under the wall was sliding and two labourers were standing upon the shuttering (pad). Labourers standing on the ground were shouting and were asking them to come down as the mud was sliding and wall was falling. But the aforesaid two laboures remained there and the wall collapsed. One of the labourer namely Raj Kumar was rescued by the labourers and he sustained minor injuries. But the other labourer caught under the wall and the labourers were not able to rescue him. Thereafter, PCR officials and local police arrived and he was taken out and he was taken to hospital, thereafter he was declared dead.

4. PW 2 Sh. Rakesh Gulati deposed that he lived in front of the spot of incident. The incident took place at house no. 247, Gujrawala Town at about 10:00 to 10:15 a.m. He was having tea while standing in the balcony of his house at first floor. After some time he heard alarm, he rushed to the spot and saw some labourers, who were working at the spot buried under the debris. The PCR van also came to the spot by the time he reached there. One of the labourer was seen by him being taken by the police officials. He was in walking condition and taken by the police to the hospital in PCR van. He also saw that one of the labourer was taken out by the police from the debris and was taken to HRH by ambulance. He deposed that injured was in lying condition and could not walk. In the evening he came to know that the labourer had expired. He stated that he know the accused persons and he correctly identified the accused persons. He stated that these accused are the owner of the plot where the incident took place. Witness was cross examined by the Ld. Counsel for the accused.

5. PW 3 Ct. Virender deposed that on 24.12.2010, he was posted as constable in PS Model Town. He joined the investigation with SI Ranveer Singh. They found the accused persons namely Sushant and Adesh Gambhir and they arrested both the accused persons vide memo Ex. PW 3/A, B, C and D. He stated that on 26.12.2020 he along with IO went to mortuary Hindu Rao Hospital (HRH). After the post mortem the dead body of Dharmender was handed over to his relatives vide memo PW 3/E and then they came back to the PS and IO recorded his statement.

6. PW 4 M.H. Khan, the then Assistant Architect in DDA, deposed that the building plan of the building in question was passed by him. The building plan was applied by two persons namely Sushant Gambhir and Adesh Gambhir i.e. the accused in the present case. The building plan was passed according to by laws of master plan of 2021. After the mishappening, he served notice as Mark A and Mark B upon the owner of the plot in question. Mis­ happening had taken place during the excavation of basement.

7. PW 5 W/SI Usha was posted as duty officer from 9:00 a.m. to 5:00 p.m. She stated that on 23.12.2020 at about 11:20 a.m., he received a call regarding falling of wall which he entered into roznamcha vide DD entry no. 9A and informed SI Ranbir through Ct. Kuldeep to take necessary action on the same. She stated that DD no. 9A is in her handwriting and same is Ex. PW 5/A. She stated that at about 2:15 p.m. she received a rukka from SI Ranbir Singh on the basis of which he registered FIR which is Ex. PW 5/B and endorsement on rukka Ex. PW 5/C and after that he handed over the copy of FIR and original rukka to Ct.Kuldeep for handing over to the IO. Witness was cross examined by the Ld. Counsel for the accused.

8. PW 6 Ct. Subhash Kumar deposed that on 23.12.2010 he was posted as photographer along with in­charge SI Satpal Singh in Crime Team/NW District. He stated that he clicked 14 photographs which his official digital camera. He stated that the photographs Ex. P1 to Ex. P16 except Ex. P4 and Ex. P5 were taken by him. Witness was cross examined by the Ld. Counsel for the accused.

9. PW 7 Sita Ram Mandal deposed that he did not remember the date, month and year of the incident but on that day he was working to remove the scraps of lanter of a demolished building. He stated that he employed by the owner of the plot to employ one more person so he brought one labour namely Dharendra there. One that day of incident, he went to get sharpen the bit (sumbha) of the machine. When he came, he was told by the boys about the incident. Some noise was coming from the wall and all the labourers came out for a while. Deceased Dharmender entered the said plot to know about the noise. He was asked by other labourers not to enter the plot but he ignored and then wall fell down on him. He deposed that one other person suffered injuries on his leg as he was sitting nearby. They were taken to hospital. Then, he was called to P.S. where his statement was recorded by the IO. The witness was cross examined by the Ld. APP for the State as he was resiling from his earlier statement. Witness was also cross examined by Ld. Counsel for the accused.

10. PW 8 Retd. SI Ranbir deposed that on 23.12.2010 he was posted as SI at PS Model Town. On the day of incident, he was on emergency duty from 8:00 a.m. to 8:00 p.m. On that day, on receipt of DD no. 7­A in the morning regarding collapse of wall, he along with one constable whose name, he did not remember went to spot i.e. plot no. 247, Gujrawala Town, Model Town­III where one wall had collapsed and number of persons had gathered there. There were two persons injured in the incident. One injured was shifted to BJRM (Babu Jagjivan Ram) Hospital and other was shifted to HRH. Then he went to HRH. He obtained MLC of injured Dharmender. He was declared as dead by doctor. His dead body was shifted to mortuary. Then SI Ranbir went to BJRM Hospital and obtained MLC of injured Raj Kumar. He was declared fit for statement by doctor but Raj Kumar was refused to give statement at that time. Then he came back to the spot and made endorsement Ex. PW 8/A on DD no. 09­A and got the FIR register through constable. He found one witness Sita Ram (PW7) on the spot. He recorded his statement. He prepared site plan Ex. PW 8/B at his instance. Then he came back to PS and then he went to BJRM Hospital where injured Raj Kumar was under treatment. He recorded his statement. Then he went to the spot again and recorded the statement of two persons. He searched the address of relative of deceased and gave information to his family members. After identification of dead body of deceased Dharmender, he recorded the dead body identification statement of Ranjeet, Babu Lal and Suresh Chand Ex.PW 8/C, Ex. PW 8/D and Ex. PW 8/E . After post mortem he handed over the dead body of deceased Dharmender to his relatives vide handling memo Ex. PW 3/E bearing his signature. On 24.12.2010, he had arrested the accused persons Sushant Gambhir and Adesh Gambhir vide memos Ex. PW 3/A and Ex. PW 3/B. He correctly identified both the accused in court. He deposited the MLC of injured Raj Kumar to BJRM Hospital for seeking opinion of concerned doctor regarding nature of injuries. He received the opinion of doctor on MLC as simple injury. The photographs of the spot were taken and exhibited as Ex. P1 and P16. He recorded the statement of witnesses U/s 161 Cr.P.C after completion of investigation, he prepared the charge sheet and filed the same in the court. Witness was cross examined by Ld. Counsel for accused.

11. PW 9 Ct. Kuldeep deposed that on 23.12.2020, on receipt of copy of DD no. 9A regarding collapse of wall, he along with IO went to spot i.e No. 247 Gujranwala town,Part­III. He deposited the MLC of injured Raj Kumar to BJRM Hospital for seeking opinion of concerned doctor regarding nature of injuries. Injured was sent to hospital by PCR van. Another injured who came under the dabris of wall was taken out and sent to Hindu Rao Hospital through ambulance. Then he along with IO went to BHRM Hospital. IO obtained MLC of injured Raj Kumar. He refused to give statement due to having pain in his chest. He stated that injured who was sent to HRH hospital had died. His dead body was preserved in HRH Hospital. Then IO prepared rukka on DD no. 9A and sent him to PS for registration of FIR. Witness was cross examined by Ld. Counsel for accused.

12. Statement of both the accused under section 313 read with 281 Cr.P.C was recorded, wherein accused pleaded innocence and false implication in the present case. Accused persons opted not to lead defence evidence.

13. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.

14. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. In this regard, it is relevant to reproduce the observations made by Hon'ble Supreme Court in Kali Ram Vs. Himanchal Pradesh (1973 2 SCC 808) in para 23 and 25 whioch are reproduced as under:

" 23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973 2 SCC 793) to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed...
25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh,(1974 2 SCC 227) a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."

15. The case of the prosecution is that on 23.12.2010, the accused persons have employed labourers to construct property at 247, Gujranwala Town, Model Town. On the date of incident at about 11:00 a.m, the labourers were digging the soil to prepare the basement. It is alleged that due to digging, the nearby standing wall collapsed and one victim namely Raj Kumar and deceased Dharmender got buried under the debris. Both the persons were brought to the hospital, where Dharmender was declared brought dead, whereas victim Raj Kumar sustained simple injuries. The foundation of the case of the prosecution is that the accused persons who were the owners of the property did not make proper arrangements for the safety of the labourers, due to which the mishap happened. The accused were charged with offences punishable u/s 288/337/304A IPC. Section 288 IPC reads as under :

288. 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 reads as under :

304A. 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.
Section 337 IPC reads as under:
337. Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Therefore, in order to secure conviction against the accused persons, the prosecution is required to prove the following:

1. The death of deceased Dharmendra and injury to victim Rajkumar.
2. The negligence on the part of accused persons for failure to guard against probable danger to human life from the fall of a building under construction.
3. The negligence on the part of accused resulted in death of the deceased and injury to the victim.

16. PW­1 deposed that he saw the labourers Dharmendra and Rajkumar burying underneath the collapsing wall. PW2 also deposed that after the wall collapsed and PCR van arrived, he saw two labourers being rescued one of whom was conscious and the other was unconscious. PW7 deposed that deceased entered the plot where he got buried underneath the wall which collapsed and one more labourer suffered injury. PW8 deposed that when he reached to the spot, it was releaved that there were two persons injured in the incident. One injured was shifted to BJRM Hospital and other was shifted to HRH. He obtained MLC of injured Dharmender. Dharmender was declared as dead by doctor. His dead body was shifted to mortuary. He further deposed that he had given information to his family members. After identification of dead body of deceased Dharmender, he recorded statements of Ranjeet, Babu Lal and Suresh Chand Ex.PW 8/C, Ex. PW 8/D and Ex. PW 8/E. PW8 then went to BJRM Hospital and obtained MLC of injured Raj Kumar. Thereafter, he deposited the MLC of injured Raj Kumar to BJRM Hospital for seeking opinion of concerned doctor regarding nature of injuries. He received the opinion of doctor on MLC as simple injury. The accused persons vide their statement dated 30.10.2017 admitted the MLCs Ex. D1 and Ex.D2. Hence, the factum of death of deceased Dharmendra and injury to victim Rajkmuar is duly proved.

17. Now the prosecution has to prove that there was negligence on the part of accused persons on failure to guard against the fall of the wall and that the death and injury resulted was due to the negligence on the part of accused persons. As per the testimony of PW4, the building plan was applied by both the accused persons. Thus, it is proved that the accused persons were constructing the property on the plot for which proposal was submitted by them before DDA. PW­1, PW­2 and PW­7 are the public witnesses examined by the prosecution. PW­1 deposed that on the day of incident, when he was coming from Shani Mandir, he saw two labourers i.e victim Ram Kumar and deceased Dharmender standing on shuttering when the wall started collapsing. He deposed that the labourers on the ground were shouting and asking the two labourers on the shutting to come down, but the two labourers did not come down. The testimony of PW­1 shows that the shuttering was installed for the construction and that despite the warning given by fellow labourers on ground, the two labouerers did not come down. PW2 did not witness the incident when it happened since he admitted in his cross examination that he reached the spot after the incident had taken place. He deposed that he reached the spot when he heard cries of the labourers. He deposed that the incident occurred because the plot was dug deep. However, the testimony of PW 2 in this regard is speculative. It is relevant to reproduce the cross­examination of PW2 as under:

"...The plot where the wall fell was already dugged deep and its basement was also dugged. Perhaps, the side wall of the plot fell because of the excessive digging..."

PW7 was supposed to be the the star witness of the prosecution as he employed for removing the fall on the plot who in turn has brought labourers including the deceased and the victim but PW7 turned hostile and did not support the case of the prosecution. PW7 was cross examined by Ld. APP. He deposed that when some noise started coming from the wall, all labourers came out but deceased Dharmendra entered the plot ignoring the warning by fellow labourers not to enter the plot and then wall collapsed on him. He deposed that one more labourer got injured as he was sitting nearby. He denied the suggestion by Ld. APP that no support was installed with the wall. It is pertinent to mention herein that the testimony of PW1 and PW7 are conflicting with each other. PW1 deposed that two labouerers were standing on the shuttering when the wall had collapsed while PW7 deposed that deceased entered the plot when all labourers came out and injured Raj Kumar was sitting nearby. PW7 also denied the suggestion that the accused did not take any safety measures or that he had informed the accused about the probable danger which the accused ignored. He also denied the suggestion that the incident had taken place due to rashness or negligence on the part of the accused. PW7 demolished the case of the prosecution. The prosecution could not examine PW Rajkumar since despite repeated summons he remained unserved. Summons were also directed to be served through DCP but PW Rajkumar remained untraceable.

18. In view of testimonies of PWs as discussed above, the prosecution could not establish that the collapse of the wall and the consequent death of deceased Dharmendra and injuries to Raj Kumar was due to the negligence of the accused persons. It is the case of the prosecution that the mishap happened since the accused did not take due precautions for safety of the labourers. It is pertinent to mention that as per the testimony of PW4 and the sanctioned building plan produced by the prosecution itself, the accused were constructing the basement as per the permission obtained by them so it cannot be said that the accused were doing something which was beyond the permission given to them or something contrary to established rules and regulations in this regard. It is also pertinent to mention that both PW2 and PW7 deposed that shuttering was installed at the plot which prima facie suggest the absence of rashness on the part of the accused persons. It is relevant to note that except the testimony of PW2, none of the PWs deposed that the mishap happened due to lack of safety precautions undertaken by the accused. Even the testimony of PW2 is inconclusive in this regard. As already observed, the testimony of PW2 is speculative in nature. PW1, PW2 and PW7 were the only public witness through whom the prosecution could have established the guilt of the accused. The testimony of PW1 and PW2 is not sufficient enough to prove the negligence or rashness on the part of the accused persons so as to hold them guilty of the offences punishable under section 288/304A/337 IPC. In the opinion of this Court, only the testimonies of PW Raj Kumar and PW7 Sita Ram could have proved the case of the prosecution. However, PW7 did not support the case of the prosecution and PW Raj Kumar could not be examined in evidence as he remained untraceable despite repeated summons from the Court. Hence, it is safe to conclude that the prosecution remained unsuccessful to make out a case against both the accused and the benefit of doubt must be given to the accused persons.

19. In view of the above said discussion, the prosecution has failed to prove its case against the accused Adesh Gambhir and Sushant Gambhir for offences punishable under section 288/304A/337 IPC. Accordingly, accused Adesh Gambhir and Sushant Gambhir are acquitted of the charges under section 288/304A/337 IPC.

Digitally signed by PRANAV

PRANAV JOSHI Date: 

Announced in open court                      JOSHI  2022.12.21
                                                       17:52:23
                                                       +0530
on 21st of December 2022                    Pranav Joshi
                                          MM-03:North: Rohini
                                               21.12.2022