Delhi District Court
State vs Om Prakash on 15 September, 2025
IN THE COURT OF MS. DIVYA ARORA:
JUDICIAL MAGISTRATE FIRST CLASS-04: NORTH-WEST
DISTRICT: ROHINI COURTS: NEW DELHI
FIR No. 329/2008
PS Shalimar Bagh
State Vs. Om Prakash & ors.
Date of Institution: 18.03.2010
Date of Judgment : 15.09.2025
JUDGMENT
(a) Serial Number of the case : 529847/2016
(b) Date of commission of offence : In the year 2007
(c) Name of the complainant : Sh. Kamal Prasad
(d) Name of Accused persons, : (1) Om Prakash their parentage & residence S/o: Pawan Kumar, R/o: Datauli, PS Maharajganj, Tehsil Faizabad, Ayodhya, UP.
(2) Ram Narayan Aggarwal S/o Raghu Nath Aggarwal, R/o: A-1/31, Janak Puri, Delhi.
(3) Ram Avtar Aggarwal S/o R.P. Aggarwal, R/o: A-1/31, Janak Puri, Delhi.
(4) R.S. Malik S/o Sh. V.S. Malik, R/o: C-48, Surya Nagar, Ghaziabad, UP.
FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 1 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:00 +0530 (5) R.L. Gupta S/o R.C. Gupta, R/o: B-46, Sunder Apartment, Sec.-14, Rohini, Delhi. (6) B.M. Aggarwal S/o Deep Chand Aggarwal, R/o: C-202, Majlis Park, Adarsh Nagar, Delhi. (e) Offence complained of : U/s: 336/338 IPC (f) Plea of Accused : Pleaded not guilty (g) Final order : Conviction
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The present case arises from an incident in which the complainant, Kamal, sustained injuries after falling into an open manhole at a construction site. The prosecution alleges that the said incident occurred due to the gross negligence of the accused persons, who had failed to provide sufficient warning signs, illumination, or personnel to guard or secure the area under construction. It is further alleged that the pit was covered by black polythene, making it indistinguishable from the road surface, and thereby creating a concealed and dangerous trap for passers-by.
2) The case was registered under Sections 336 and 338 of the Indian Penal Code, which pertain respectively to acts that endanger the life or personal safety of others, and to causing FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 2 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:09 +0530 grievous hurt by doing any act so rashly or negligently as to endanger human life or personal safety.
3) After completion of the investigation, chargesheet was filed in Court, cognizance of the offences were taken, the above said accused persons were summoned and after that, they entered appearance, copy of the chargesheet along with the documents was supplied to them in compliance of Section 207 of the Code of Criminal Procedure.
4) Notice was then framed against the accused persons namely Omprakash, Ram Narayan Aggarwal, Ram Avtar Aggarwal, R.L. Gupta, B.M. Aggarwal, and R.V.S. Malik on 26.03.2018 for the commission of offences under Section 336/338 IPC, to which accused persons pleaded not guilty and claimed trial.
5) To prove its case, the prosecution examined 10 witnesses.
6) PW1 Sh. Kamal Prasad deposed that on 12.06.2008, at about 11.00 pm and 11.30 pm, he was returning from his work place and reached at Haiderpur Bus Stand where main hole 60 feet deep was there and he fell down in the same and sustained in- jury on his head and left leg, there was neither light nor any security guard nor warning sign and spot was not covered with verticals tins, and said main hole was covered with black poly- thene which was looking like road. Thereafter, public persons came and complainant was pulled out from the said hole with FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 3 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:14 +0530 the help of rope by the public persons. Thereafter, police offi- cials came at the spot and took the injured and his son to BJRM Hospital, and injured narrated the whole incident to the police and police conducted investigation.
7) PW-2 Yogesh deposed that on 13.06.2008, he took his dinner at Hotel near main Bus Stand, Haiderpur and when he left the hotel, heard cries "bachaao bachaao" and he went towards the pit deep around 20-25 feet and saw one person was in the said pit. He noticed that hands and leg of said person had broken and he went down in the pit and he was not able to take out the complainant out of the said pit. Thereafter, he again went to bus stand and requested 4-5 public persons to help him in taking the injured person out of the pit. Thereafter, he called the police for help and police officials came at the spot. On 08.09.2008, accused Omprakash was arrested and personally searched.
8) PW-3 Sh. Ajeet Kumar deposed that on 13.06.2008, he was present at his shop in the night, he heard some noise that a man fell down in the pit and called at 100 number and police officials came at the spot and the said pit was covered with plastic Tirpal (polythene).
9) PW-4 Neeraj Chaudhary deposed on behalf of Dr. Nadeem who prepared MLC bearing no. 881 dated 13.06.2008 Ex.PW4/A and identified his signature on the said MLC. He FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 4 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:20 +0530 also identified the handwriting and signatures of Dr. Yashwant on the said MLC.
10) PW-5 Dr. Shipra Rampal who had opined on 14.06.2008 on the X-ray requisition number 1421 dated 13.06.2008 Ex.PW5/A by giving her opinion that fracture of Tibia and fibula in left leg, fracture Tibia in right leg.
11) Witness ASI Rajesh deposed that on 13.06.2008 upon receiv-
ing DD no. 5-B by the IO ASI Jai Prakash, he went to the spot and came to know that injured person was taken to hospital by CAT Ambulance and he remained at the spot and IO went to hospital, thereafter, IO came back at the spot with rukka and handed over the same to him for registration of FIR, and he got registered the present FIR.
12) PW-7 ASI Mehandi Hussain deposed that on 14.11.2009, he alongwith IO Baljeet Singjh went to the house of accused Ram Narayan Aggarwal, thereafter, accused Ram Narayan Aggarwal was arrested vide arrest memo Ex.PW7/A, and he correctly identified the accused.
13) PW-8 ASI Roshan Lal deposed that on 08.09.2008, he had joined the investigation with IO ASI Jai Prakash, and IO ar- rested and personally searched the accused Omprakash vide memos Ex.PW2/A and Ex.PW2/B. He correctly identified the accused Omprakash in the court.
FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 5 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:24 +0530
14) PW-9 Retd. SI Baljeet Singh deposed that on 14.11.2009, he alongwith Ct. Mehandi visited A-1/32, Janakpuri, Delhi and met with Raghu Nath and Ram Narayan and he arrested the accused Ram Narayan vide arrest memo Ex.PW7/A. There- after, he prepared the chargesheet and filed the same before the court.
15) Witness Retd. SI Ram Lakhan deposed that on 15.07.2009, he joined the investigation with ASI Jai Prakash and accused Ram Avtar was arrested and personally searched vide arrest memo Ex.PW9/A and Ex.PW9/B. He identified the accused in the Court.
16) Thereafter, the prosecution evidence was closed and the state-
ment of accused was recorded under Section 281 read with Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused per- sons. Accused R.S. Malik deposed that "It is correct that DDA had awarded a contract to Vichitar Construction. That as per the terms and conditions of the contract between the DDA and the Vichitar Construction company, it was the sole responsi- bility of the company to look after the safety measures, ar- rangement measures and other measures as required. The functional autonomy interms of the execution of the contract was with the company. That it was the company who would manage and control its affairs in terms of the execution of the FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 6 of 17 Digitally signed by DIVYA ARORA DIVYA ARORA Date:
+0530 2025.09.15 16:47:29 work/contract. That as per the terms of the contract , the con- tractor shall provide necessary barriers, warning signals and other safety measures to avoid accident. That as per the terms of the contract i.e. standard operating procedure the company was responsible to recruit/induct trained employees as re- quired for the execution of the work. That day to day affairs on the site were inspected by the officials of the DDA and ambiguity/ lapses if any were reported and lodged in the site order book for compliance as necessary. I was not present at the site on the date of the incident. Letor on I came to know that victim was in his over exuberance due to his intoxicated condition was trying to cross the barriers as per the deposition of the various witnesses. It is submitted that I was called as witness at S.no. 08 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evidence against me. It is incorrect that there is evidence against me. It is submitted that I was called as witness at S.no. 08 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evidence against me.It is submitted that I was called as witness at S.no. 08 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evidence against me. It is incorrect that there is evidence against me. It is submitted that I was called as witness at S.no. 08 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evidence against me." Accused B.M. Ag-
garwal deposed that "It is correct that DDA had awarded a FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 7 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:35 +0530 contract to Vichitar Construction. That as per the terms and conditions of the contract between the DDA and the Vichitar Construction company, it was the sole responsibility of the company to look after the safety measures, arrangement mea- sures and other measures as required. The functional auton- omy interms of the execution of the contract was with the company. That it was the company who would manage and control its affairs in terms of the execution of the work/con- tract. That as per the terms of the contract , the contractor shall provide necessary barriers, warning signals and other safety measures to avoid accident. That as per the terms of the contract i.e. standard operating procedure the company was responsible to recruit/induct trained employees as required for the execution of the work. That day to day affairs on the site were been inspected by the officials of the DDA and ambigu- ity/ lapses if any were reported and lodged in the site order book for compliance as necessary. I was not present at the site on the date of the incident. Letor on I came to know that vic- tim was in his over exuberance due to his intoxicated condi- tion was trying to cross the barriers as per the deposition of the various witnesses. It is submitted that I was called as wit- ness at S.no. 14 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evi- dence against me. It is incorrect that there is evidence against me. It is submitted that I was called as witness at S.no. 14 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evidence against me."
FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 8 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:39 +0530
Accused R.L. Gupta deposed that "It is correct that DDA had awarded a contract to Vichitar Construction. That as per the terms and conditions of the contract between the DDA and the Vichitar Construction company, it was the sole responsibility of the company to look after the safety measures, arrangement measures and other measures as required. The functional au- tonomy in terms of the execution of the contract was with the company. That it was the company who would manage and control its affairs in terms of the execution of the work/con- tract. That as per the terms of the contract , the contractor shall provide necessary barriers, warning signals and other safety measures to avoid accident. That as per the terms of the contract i.e. standard operating procedure the company was responsible to recruit/induct trained employees as required for the execution of the work. That day to day affairs on the site were been inspected by the officials of the DDA and ambigu- ity/ lapses if any were reported and lodged in the site order book for compliance as necessary. I was not present at the site on the date of the incident. Later on I came to know that vic- tim was in his over exuberance due to his intoxicated condi- tion was trying to cross the barriers as per the deposition of the various witnesses. It is submitted that I was called as wit- ness at S.no. 15 in the list of witness of the charge-sheet and was later on falsely implicated without any incriminating evi- dence against me. It is incorrect that there is evidence against me. It is submitted that I was called as witness at S.no. 15 in the list of witness of the charge-sheet and was later on falsely FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 9 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:45 +0530 implicated without any incriminating evidence against me." Accused Ram Avtar Aggarwal deposed that "It is correct that DDA had awarded a contract to Vichitar Construction. The Company has not been an accused. The employees were trained to observe the standard operating procedure required for land, swear by used trench-less technologies. Day to day affairs on the site was been looked after by the employees. I was not present at the site on the date of the incident. I was later informed that victim in his over exuberance due to his in- toxicated condition was trying to cross the barriers as per the deposition of the various witnesses. I cannot comment as I was not present at the site and was only receiving progress re- port from the concerned engineers on periodic basis. The case has been falsely registered as all the safety measures were placed and operating procedure were followed. The Ld. ADJ as awarded the compensation of Rs. 11 lacs to the victim to be paid by the company despite follow up the victim has not claimed the amount due to the reasons best known to him nor has he challenged the order of Ld. ADJ." Accused Ram Narayan Aggarwal deposed that "It is correct that DDA had awarded a contract to Vichitar Construction. The Company has not been an accused. The employees were trained to ob- serve the standard operating procedure required for land, swear by used trench-less technologies. Day to day affairs on the site was been looked after by the employees. I was not present at the site on the date of the incident. I was later in- formed that victim in his over exuberance due to his intoxi-
FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 10 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:50 +0530
cated condition was trying to cross the barriers as per the de- position of the various witnesses. The case has been falsely registered as all the safety measures were placed and operating procedure were followed. The Ld. ADJ as awarded the com- pensation of Rs. 11 lacs to the victim to be paid by the com- pany despite follow up the victim has not claimed the amount due to the reasons best known to him nor has he challenged the order of Ld. ADJ." Accused Omprakash stated that all the precautions were taken by me at the time of digging the trench. The victim fell into the trench due to his own inebri- ated condition. It is incorrect as standards operations proce- dures were followed. There was sufficient light and barricades were erected with a board stating that precautions be taken by the pedestrian as work was in progress. There was a security guard posted at the site. The victim remove the barricades and were trying to explore the pit since he was not in senses, he lost balance and fell down. The victim was pulled out from the pit by the fire bridge officers who were summoned at my be- hest. The security guard and I was available at the site and af- ter making a call fire bridge and police, victim was taken out from the pit. The victim suffered minor injuries on his leg. Mr yogesh in his deposition that victim was intoxicated. At our behest police and fire bridge were called. It is correct that the pit was covered with iron sheets and barricades were placed. The victim over looked all these obstacle, deliberately to pre- vent any mishap. By and large, all the prosecution witnesses have conformed victim was inebriated and therefore he fell in FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 11 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:55 +0530 the pit, which was covered and barricaded and all precautions were taken by me. I do not know which victim had deposed against me." Accused persons has chosen to lead defence evi- dence.
17) Sh. Vinod Kumar Babbar S/o Sh. Bal Kishan Babbar, and Sh.
Shyam Sunder S/o Sh. Satish Kumar were examined as DW-1 and DW-2 respectively, and they were duly cross examined by Ld. APP for the State. Thereafter, matter was fixed for final arguments.
18) Final arguments were then advanced on behalf of the State wherein it has been argued that the prosecution has been able to prove its case beyond all reasonable doubt and hence the accused be found guilty in the case. On the other hand, Ld. counsels for the accused persons have argued that sufficient material has not been brought on record to prove that the acci- dent took place due to rashness or negligence on the part of the accused persons.
19) The arguments as advanced by both the parties have been carefully considered along with the evidence on record.
20) It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 12 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:47:59 +0530 own legs. The prosecution cannot derive any benefit whatso- ever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
21) In support of its case, the prosecution has examined several witnesses. PW1, the complainant, deposed that on the date of the incident, while walking near the construction site, he sud- denly fell into a pit covered with black plastic, suffering in- juries in the process. He stated that there were no warning signs, no guards present, and no lighting arrangements in place.
22) PW2, a witness who rescued the complainant, corroborated the fact that the complainant had fallen into an open pit. Though he stated in his cross-examination that there were streetlights in the vicinity and that the complainant smelled of alcohol, the defence failed to substantiate the allegation of in- toxication through any medical report or credible corrobora- tive evidence. A mere statement about the smell of alcohol, without scientific or medical backing, is insufficient to estab- lish contributory negligence on the part of the complainant.
23) PW3 Ajeet deposed that while there were some barricades and a plastic cover, it was not certain whether these arrangements were in place at the time of the incident. He also admitted that it was possible that the complainant was under the influence FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 13 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:48:05 +0530 of alcohol but could not confirm the same. This again amounts to mere conjecture and does not discredit the complainant's version.
24) PW6, ASI Rajesh, who conducted an inspection at the site shortly after the incident, clearly deposed that the manhole was loosely covered with tin sheets and black polythene, and that there were no lights or indicators present. He further stated that the inspection itself had to be conducted using a mobile phone torch, highlighting the absence of proper light- ing at the site. This lends substantial credibility to the com- plainant's allegation of negligence on the part of those manag- ing the site.
25) The Investigating Officer could not be examined as he had passed away, but this does not vitiate the trial, especially when the remaining evidence sufficiently establishes the prosecution case.
26) On the other hand, the defence examined two witnesses. DW1 deposed that accused no. 2 and 3, who are directors of the construction company, were only handling tendering work from the office and were not involved in site execution. How- ever, no documents were produced to delineate the precise du- ties and responsibilities of these directors, nor was any witness from the company's managerial level examined to clarify who had the charge of safety at the site. The mere assertion that the FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 14 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:48:10 +0530 directors were not involved in on-site work is insufficient to absolve them of liability in the absence of any evidence to show delegation of responsibility with appropriate safeguards.
27) DW2, a transport operator, stated that there was adequate light and that caution boards were placed at the site. However, this testimony stands contradicted by the deposition of PW6, an independent police officer who visited the site and found no such safety measures in place. Between the two, the statement of a neutral public servant who inspected the site after the in- cident carries greater evidentiary weight.
28) The defence has argued that accused persons 4 to 6 were ini-
tially cited as witnesses and later made accused, and that the complainant has already received compensation. However, the addition of persons as accused during investigation is permis- sible when evidence emerges against them. Further, the fact that the complainant may have received compensation has no bearing on the criminal liability of the accused, as criminal law operates independently of civil remedies.
29) Reliance has been placed by the defence on Maksud Saiyed v.
State of Gujarat [(2007) 5 SCC 668] and Shiv Kumar Jatia v. NCT of Delhi [(2019) 17 SCC 193] to argue that directors of a company cannot be held criminally liable unless specific alle- gations are made against them. However, both cases are dis- tinguishable. In Maksud Saiyed, the Hon'ble Supreme Court FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 15 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:48:15 +0530 dealt with the question of vicarious liability in a case under Section 304-A IPC in the absence of direct allegations. In the present case, the facts demonstrate that the construction was being carried out by the company under the supervision and benefit of its directors. The defence has failed to lead any evi- dence showing that proper safety mechanisms were instituted, monitored, or enforced by any delegated authority. In such cir- cumstances, the directors cannot take shelter behind the corpo- rate veil when a duty of care owed to the public was breached.
30) The Supreme Court in K. Nirmala v. State of Tamil Nadu [(2023) 3 SCC 598] reiterated that where public safety is com- promised by gross negligence, criminal liability can and must follow.
31) In view of the above, this Court is of the considered opinion that the prosecution has proved beyond reasonable doubt that the accused persons were grossly negligent in ensuring public safety at the construction site. Their omission to put up proper lighting, warning signs, or barricades created a foreseeable risk to human life and led to grievous injuries to the com- plainant. Such conduct clearly falls within the mischief of Sections 336 and 338 of the IPC.
32) Accordingly, the accused persons namely (1) Omprakash, (2) Ram Narayan Aggarwal, (3) Ram Avtar Aggarwal, (4) R.L. Gupta, (5) B.M. Aggarwal, and (6) R.V.S. Malik are held FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 16 of 17 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:48:19 +0530 guilty and convicted for the offences punishable under Sec- tions 336 and 338 of the Indian Penal Code.
33) Let the matter be listed on the point of sentence on 06.10.2025.
34) Copy of judgment be given to the accused free of cost.
Announced in the open Court on 15.09.2025.
DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.09.15 16:48:26 +0530 (DIVYA ARORA) Judicial Magistrate First Class-04/North West District Rohini District Court/New Delhi Certified that this judgment contains 17 pages and each page bears my signature.
DIVYA Digitally signed by DIVYA
ARORA
ARORA Date: 2025.09.15
16:48:32 +0530
(DIVYA ARORA)
Judicial Magistrate First Class-04/North West District Rohini District Court/New Delhi FIR No. 329/2008 (PS Shalimar Bagh) U/s 336/338 IPC State Vs. Om Prakash & ors. Page No. 17 of 17