Delhi District Court
State vs . Mohd Ahsaan on 25 January, 2020
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT020013702018
CIS No. 551/18
State Vs. Mohd Ahsaan
FIR No. 400/15
PS. Nabi Karim
U/s. 336/337 IPC
JUDGMENT
1) The date of commission of offence : 05.08.2015
2) The name of the complainant : Budbal
3) The name & parentage of accused : Mohd Ahsaan
S/o. Abdul Hamid
R/o. H. no. AB130, Krishna
Basti, Nabi Karim, Delhi.
4) Offence complained of : 336/337 IPC
5) The plea of accused : Plead not guilty
6) Final order : Acquitted
7) The date of such order : 25.01.2020
Date of Institution : 12.01.2018
Judgment reserved on : 06.01.2020
Judgment announced on : 25.01.2020
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused is that he is the owner of
house no. AB 130, Amar Puri Nabi Karim, Delhi (hereinafter as 'house' for short) but he negligently failed to repair that old and rickety house for which on 05.08.2015 at about 9:50 PM the balcony and wall of the house collapsed and fallen on the complainant Budbal who was passing outside the abovesaid house and suffered injuries. The matter was reported to the police. The FIR was registered and the investigation was taken up.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of notice were heard. Vide order dated 11.09.2018, a notice u/s. 336/337 IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined six witnesses. Accused admitted the factum as to the registration of present FIR and the medical documents of the injured/complainant Budbal prepared in RML Hospital on the day of incident. Statement of accused was recorded under section 313 Cr.P.C r/w Section 281 Cr.PC, in which he denied all the allegations. Accused admitted that he purchased the property in question. Accused opted not to lead Defence Evidence.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
6) The complainant of the present case was examined as PW2 by the prosecution. He deposed that on the day of incident the debris of chajja of the house of the accused fell on his head for which he sustained injuries. He identified the accused as the owner of the house. He proved his statement to the police as Ex.PW2/A. PW2 was crossexamined by Ld APP for the State as he not supported the case of the prosecution in all aspects. In the cross examination PW2 denied that the house in question was in dilapidated condition. He denied that the house is an old building. He denied that the building was not constructed properly and was in dangerous condition. He deposed that he did not notice any damage over the balcony/chajja prior to the incident in question. He thereafter deposed that house of the accused (building in question) was in good condition.
7) The ownership over the building in question has not been denied by the accused. It is also not in dispute that the injured Budbal suffered injuries in the incident in question. The only poser remains to be decided as to whether there was 'rashness' or 'negligence' on the part of the accused or not. For proving the rashness or negligence in the present matter the prosecution was required to be proved that the building was a dangerous building and the accused rashly or negligently not taken appropriate steps for maintaining that building.
8) The complainant of the present case specifically denied that the building was in dilapidated condition. He even denied that building was old. The complainant specifically denied that building was not constructed properly or the same was dangerous one. The condition of the building was required to be proved as bad condition by the prosecution. By virtue of the testimony of the complainant the prosecution failed to bring that the building was in bad condition or the same was dangerous one.
9) If any wall of the building collapses than this fact in itself does not leads to any presumption of rashness or negligence. This court while deciding a criminal liability cannot shift the onus on the accused by invoking the maxim of resipsa loquitur which is applicable in the law of Torts. It was the duty of prosecution to bring on record sufficient evidences as to over hasty act on the part of the accused which could be said to the rashness on the part of the accused or the breach of duty on the part of the accused which could be said to be negligence on the part of the accused. No such over hasty act or breach of duty on the part of the accused came on record by virtue of testimony of the complainant.
10) At this stage only the testimony of another eye witness namely Sh Raja Ram examined as PW1 by the prosecution is required to be appreciated. When PW1 was summoned by this court he deposed on oath that he does not know anything about the present case. Ld APP for the State crossexamined that witness. He denied that building in question was very old or in bad condition. He denied that the boundary wall of the second floor of the building was old and rickety and the same fallen on a person. PW1 was also crossexamined by Ld Defence Counsel wherein he deposed that he did not see debris falling from the house of the accused. He deposed that he came later at the spot and he had not witnessed the incident in question.
11) If the testimony of PW1 be read than it could be said that this testimony is not incriminating to the accused. He denied that he witnessed the incident. He denied that the building was old building or the boundary wall of the second floor of the house was in bad condition and same fallen on person. The prosecution failed to bring that the house owned by the accused was a dangerous building. There is no other public witness in the present case and it could be said that by virtue of the testimony of the complainant and the alleged eye witness PW1 (though he denied of being an eye witness), the prosecution failed to bring rashness or negligence on the part of the accused.
12) During the trial the prosecution examined Asst Sanitary Inspector of MCD Sh Subhash as PW3. PW3 deposed that on the day of incident i.e 05.08.2015 he was posted at MCD SP Zone and he received a call of falling of a roof projection (chat ka chajja). He deposed that he reached at the house in question and found that debris of bricks and cement was lying on the road. He deposed that building was in dilapidated condition and old one. He deposed that he told the accused that his house is in dilapidated condition and he directed the accused to maintain the same and thereafter he referred that matter to Building Department.
13) By virtue of testimony of PW3 the prosecution attempted to bring the alleged fact on record that the house of the accused was in dilapidated condition and the accused was aware of that fact. PW3 deposed that he told the accused that his house (building in question) is in dilapidated condition and he directed the accused to repair the same. PW3 is a government employee. There is no written communication from PW3 to the accused thereby intimating the accused that his house is in dilapidated condition. There is no notice on record as per which the accused was called to repair the house. There is no notice/document on record as per which the house of accused was declared as dangerous building.
14) PW3 only deposed orally that he referred the matter to Building Department. No document to that effect has been proved by PW3. Prosecution not brought any witness from Building Department to prove that the proceedings were initiated against the house of accused. The entire testimony of PW3 is upon oral naked avernments without having backing of any documentary evidence and same is not reliable.
15) As per the provisions of Delhi Municipal Corporation Act 1957, if any building is in dangerous condition than the same is to be declared as dangerous building and necessary proceedings are to be initiated. In the present case no such proceedings has been proved on record. There is no document on record whatsoever prepared by any authority thereby intimating the accused the building in question was dangerous building.
16) Further if PW3 deposed that the building was dilapidated condition and is in old one than this is also a fact which was required to be proved by leading positive evidences. There are no photographs of the building on record. There is no document on record as to the age of building. There is no evidence of any person residing nearby who could deposed as to the age of building. When a building can be said to be an old one is a matter of fact. Merely a opinion of witness that building was old one without specifying as to age of building is of no consequence. What was the damage in the building or what was the condition of building at the time of the incident could have been proved or record to some extent had the investigating officer taken some photographs of the building but no such steps were taken by the investigating officer/PW6 SI Amrit Lal.
17) If there was some defect in the structure of the building which could have lead to the incident in question than there should have been a report of structural engineer to that effect. In that scenario the investigating officer must have got the building inspected from the structural engineer but no such steps were taken.
18) If the construction material was not good than the debris which fallen on road must have been seized and should have been sent to the FSL for the expert opinion as to whether the correct combination of cement/sand or any other chemical was used or not. There is no such report on record.
19) In view of the abovediscussion it is not proved on record that the building was dangerous building or in dilapidated condition. It is not proved on record that the accused was ever intimated about the condition of the building. It is not proved on record that there was any rashness or negligence on the part of the accused in maintaining the building which led to the incident in question.
20) In view of abovediscussion the case of the prosecution not proved beyond reasonable doubts. It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
21) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubts. Accordingly, I acquit the accused Mohd Ahsaan S/o Abdul Hamid from the charges framed in the present case. File be consigned to record room subject to compliance of section 437 A Cr.PC.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2020.01.25
16:18:54 +0530
Announced in open court (KAPIL KUMAR)
on 25.01.2020 MM5/Central District
Tis Hazari Courts/Delhi,