Delhi District Court
State vs . Manmohan Rao And Anr on 16 August, 2018
IN THE COURT OF MAHIMA RAI SINGH, MM02 (EAST),
KARKARDOOMA COURTS, DELHI
State Vs. Manmohan Rao and Anr
FIR No: 256/05
U/s 288/304A IPC
PS: Krishna Nagar
Case No. 10225/2016
1. Serial No. of the case : 514K/2014
2. Date of commission of offence : 18.06.2005
3. Name of the complainant, : HC Raghuraj Singh
parentage and address PS Krishna Nagar
Delhi
4. Name of the accused persons, : 1. Manmohan Rao,
their parentage & address S/o Sh. Narayan Rao,
R/o. H. No. 126, 3rd Floor,
Ram Nagar, Delhi.
2. Prem Rani
W/o Late Sh. Prithvi Raj,
R/o H. No. 28, Ram Nagar,
Delhi (since PO/absconder)
5. Date when judgment was : 16.08.2018
reserved.
6. Date when judgment was : 16.08.2018
pronounced.
7. Offence complained of : U/s 288/304A IPC
or proved.
8. Plea of accused persons : Pleaded Not guilty and
claimed trial.
FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 1 / 15
9. Final Judgment : Accused Manmohan Rao is
acquitted and accused Prem
Rani is PO/absconder.
Brief statement of facts / reasons for decision of the case:
1. Briefly stated the case of prosecution is that on 18.06.2005 at unknown time at H. No. 27A, 28, Ram Nagar Extension, Delhi within the jurisdiction of PS Krishna Nagar, Delhi, accused Manmohan Rao and Prem Rani being contractor and owner of the premises respectively , acted with rashly and negligently as to endanger the human life or to be likely to cause hurt or injury to any one as they have not taken proper guard/measures while repairing the building and they caused hurt to one Varman Ali @ Urman by their negligent act and by which he passed away due to that hurt and thereby committed offences punishable u/s 288/304A IPC.
2. Upon completion of investigation, chargesheet for commission of offences punishable U/s 288/304A IPC was filed against the accused persons. The copies of the challan were supplied to the accused persons and after hearing the accused persons, separate notices for the offences punishable u/s 288/304A IPC were framed on 10.08.2006 against the accused namely Manmohan Rao and Prem Rani being contractor and owner of premises, to which they pleaded not guilty and claimed trial.
3. Accused Prem Rain was declared PO/absconder by vide order dated 113.11.2017.
4. In order to substantiate the allegations, prosecution has FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 2 / 15 examined twelve witnesses in support of its case.
5. PW1 HC Ram Kishan is the duty officer, who has registered the present case FIR and proved the copy of the same as Ex. PW1/A and made his endorsement on the rukka Ex. PW1/B. This witness was not crossexamined by the accused persons despite opportunity given.
6. PW 2 Dr. Aakash Jhanjee has deposed that on 19.06.2005, he was posted at Aruna Asaf Ali Hospital, Sabji Mandi Mortuary, Delhi as specialist Forensic Medicine and on that day he had conducted the postmortem on the body of deceased Varman Ali S/o Kishwar Ali, aged about 16 years and he had given the postmortem report no. 83505 containing one page which is Ex. PW 2/A, bearing his signature at point 'A' and the death was due to ventricular fibrillation as a result of electrocution.
This witness was not crossexamined by the Ld. Counsels for accused persons despite opportunity given.
7. PW 3 Sh. Dilip Kumar has deposed that house no. 28 is in his name and he used to reside at the above said residence alongwith his wife, children and his mother Smt. Prem Rani who is accused in the present case. He further deposed that he is handicap person and therefore, his mother used to bear all the responsibilities of his home. He further deposed that he did not know anything else about the present case.
Ld. APP for the state has crossexamined this witness after taking permission of the court as he was resiling from his statement given to the police. During the crossexamination by Ld. APP for the state, the FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 3 / 15 witness denied the suggestion that a construction work was going on 18.06.2005 at his house no. 28, Ram Nagar, Krishna Nagar, Delhi or that his mother Smt. Prem Rani was supervising the work or that the contact of construction work was given by his mother to one contractor Manmohan Rao. The witness was confronted with statement mark P1 where it is so recorded. The attention of witness was drawn towards accused no. 1 and he was specifically suggested regarding his identity as the same person who was working as contractor at the relevant time, the witness said that he did not know him. However, the witness has admitted that his mother was arrested in the present case This witness was not crossexamined by the Ld. Counsel for accused persons despite opportunity given.
8. PW 4 Sh. Kishwar Ali has deposed that deceased Urman was his real son. He deposed that his brotherinlaw namely Sabir informed him by telephone about the incident that Urman had died due to electric shock at Ram Nagar. He further deposed that he went to the Mortuary Subji Mandi and identified the dead body of his son. He further deposed that police recorded his statement Ex. PW 4/A, which bears his signature at point 'A' and police had also recorded his identification statement Ex. PW 4/B, bearing his signature at point 'A'. He further deposed that after the postmortem, the dead body of his son handed over to him and handing over memo was prepared which is Ex. PW 4/C, bearing his signature at point 'A'.
This witness was not crossexamined by the Ld. Counsels for accused persons despite opportunity given.
9. PW 5 Sh. Roohof Khan has deposed that he was doing job FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 4 / 15 of Raj Mistri at H. No. 27A & 28 with contractor Man Mohan Rao and he worked there for 78 days. He further deposed that in the year 2005 his cousin brother (son of his maternal aunt) was also working with him as a labour. He further deposed that on that day at about 4.30 pm, they were working at H. No. 27A at second floor and the plaster work was going on. He further deposed that he asked Urman to took instrument of plaster (guthka) from H. No. 28 where iron roads were tied for "lenter". He further deposed that as soon as Urman put his leg on the floor of house no. 28, he received electric shock and he fell down. He further deposed that Munna Mistri tried to save Urman and tried to up him, he also received electric shock. He further deposed that Munna raised alarm and said to him not to come there as there was live electric and he also received electric shock, anyhow, Munna saved himself. He further deposed that he also raised alarm but neither contractor Manmohan nor accused Prem Rani came there. He further deposed that they cut the electric connection and tried to save Urman and meantime contractor Manmohan reached at the spot. He further deposed that thereafter, they took Urman to Monga Nursing Home where doctor declared him brought dead. He further deposed that he make a call to the father of Urman and informed him about the incident. He further deposed that the police recorded his statement Ex. PW 5/A, bearing his thumb impression at point 'A'. He further deposed that the electric supply was given by a damaged wire from the ground floor to the second floor, where construction work was going on for the lighting by the accused persons. He further deposed that the incident took place due to the negligence of accused persons. The witness has correctly identified the accused FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 5 / 15 persons in the court.
The witness was crossexamined by Ld. Counsels for both the accused person in length.
10. PW 6 ASI Raghuraj Singh has deposed that on 18.06.2005, he was posted at PS Krishna Nagar as Head Constable and on that day he was on emergency duty and at about 8:07 pm, he received a PCR call vide DD No. 23A Ex. PW 6/A in regard of admission of an eighteen years boy at Monga Nursing Home after receiving electric current. He further deposed that he alongwith Ct. Indervir reached at Monga Nursing Home but it was opined by the doctor on MLC as brought in casualty dead. He further deposed that no eye witness was found at that time in the hospital and he came to know from the companions that deceased received electric current. He further deposed that thereafter, he reached at the spot i.e. H. No. 27A28, Ram Nagar Exten., and came to know that deceased Urman had received electric current while working as labour on the roof of the house. He further deposed that he again reached at the Monga Nursing Home and prepared a rukka after collecting the MLC of deceased which is Ex. PW 6/B, bearing his signature at point 'A'. He further deposed that FIR was got registered through Ct. Indervir. He further deposed that SI Chander Pal came from the PS Krishna Nagar alongwith Ct. Indervir with copy of FIR and rukka. He further deposed that he handed the MLC of the deceased to IO who recorded his statement.
The witness was crossexamined by Ld. LAC for accused Prem Rani and was not crossexamined on behalf of accused Manmohan Rao despite opportunity given.
FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 6 / 1511. PW 7 HC Satender has deposed that on 20.06.2005, he had joined the investigation in the present case alongwith SI Chander Pal who arrested the accused Manmohan Rao from his residence at H. No. 28, Ram Nagar Extension, Krishna Nagar vide arrest memo Ex. PW 7/A, bearing his signature at point 'A' and his personal search was conducted vide personal search memo Ex. PW 7/B, bearing his signature at point 'A'. The witness has correctly identified the accused Manmohan Rao in the court.
The witness was crossexamined by accused Manmohan Rao and Ld. LAC for accused Prem Rani.
12. PW 8 W/Ct. Saroj has deposed that on 16.07.2005, she has joined the investigation in the present case and she alongwith SI Chander Pal went to H. No. 28, Ram Nagar where accused Prem Rani was apprehended and she was arrested and personally searched vide personally search memo and arrest memo Ex. PW 8/A and Ex. PW 8/B (wrongly typed as Ex. PW 3/A and B) respectively, bearing her signatures at point 'A'. She further deposed that her statement was recorded. The witness has correctly identified accused Prem Rani in the court.
This witness was not crossexamined by the Ld. Counsel for accused persons despite opportunity given.
13. PW 9 Sh. Sushil Bhasin has deposed that he is owner of H. No. 27A, Ram Nagar Extension and the said building was constructed by Manmohan Thekedar. He further deposed that he had disconnected the electricity connection of the said house before starting of construction. He further deposed that at the time of incident his house was being plastered inside. He further deposed that at that time the 1 st Floor of the FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 7 / 15 H. No. 28, Ram Nagar Extension which belong to Prem Rani was being constructed and he came to know that somebody had received electric shock and he was shifted to Monga Nursing Home by accused Manmohan. He further deposed that the laborers who were working at H. No. 28 fled away. He further deposed that his statement was recorded. He has correctly identified both the accused persons in the court.
Ld. APP for state has crossexamined the witness after taking permission of the court as witness was not disclosing the complete facts. During crossexamination, the witness stated that he did not remember whether he had stated to police on 18.06.2005 that electricity connection of the Ground Floor was supplying. He has denied the suggestion that he had stated to police that the H. No. 28, Ram Nagar was constructed by Thekedar Manmohan. The witness also denied that he had stated to police that Thekedar Manmohan connected electricity wire from Ground Floor for lighting at 1 st Floor and 2nd Floor for doing work by labour and mistri. He further denied that he had stated to police that the electricity wire was touching the iron web and due to this current supplied to iron rod. He further denied that he had stated to police that as a labour Urman Ali reached at the roof of Prem Rani, he sustained electro caution. He further denied that he had stated to police that accused Manmohan and accused Prem Rani are responsible for the incident. The witness was confronted by Ld. APP for state with statement A to A1 of Mark X1 where these facts were so recorded.
The witness was not crossexamined by the accused persons despite opportunity given.
FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 8 / 1514. PW 10 Retd SI Chandra Pal Singh has deposed that on 18.06.2005, the investigation of the present case was marked to him and he alongwith a constable went to the spot i.e. H. No. 27A, 28, Ram Nagar Extension, Delhi where he prepared site plan which is Ex. PW 10/A , bearing his signature at point 'A'. and called a private photographer and got the spot photographed and the photographs are marked A 1 to A5. He further deposed that he got the dead body preserved to Mortuary, Sabzi Mandi and the request for preservation of dead body is Ex. PW 10/A1. He further deposed that he got the dead body identified by relative and recorded dead body identification statement which is Ex. PW 10/C and Ex. PW 4/B which bears his signatures at point A and B respectively. He further deposed that he requested for postmortem and the request for postmortem is Ex. PW 10/B, bearing his signature at point 'A'. He further deposed that after postmortem the dead body was handed over to their relatives vide dead body handing over memo already Ex. PW 4/C, bearing his signature at point 'B'. He further deposed that on 20.06.2005 he alongwith Ct. Satinder went to the house of the accused Manmohan at Ram Nagar where accused Manmohan was apprehended and he was arrested and personally searched vide memos already exhibited as Ex. PW 7/A and B, bearing his signatures at point 'B'. He further deposed that on 16.07.2005 he alongwith Lady Ct. Saroj went to the house of accused Prem Rani at Ram Nagar where accused Prem Rani was arrested and personally searched by W/Ct. Saroj vide personal search memo and arrest memo already Ex. PW 8/A and B, bearing his signatures at point 'B'. He further deposed that he recorded statement of witnesses and after completion of investigation, FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 9 / 15 the charge sheet was submitted to court for trial. The witness has correctly identified both the accused persons in the court.
The witness was crossexamined by Ld. Counsel for accused persons.
15. PW 11 Dr. V.K. Monga has deposed that on 18.06.2005, he was working as CMO in Monga Medical Centre and on that day injured Urman was brought to the causality of Monga Medical Centre where he was examined and found that the person was dead. He further deposed that there was no sign of life and his ECG showed a flat line and he prepared MLC Ex. PW 11/A, bearing his signatures at points A and B respectively.
The witness was not crossexamined by Ld. Counsels for the accused persons despite opportunity given for the same.
16. PW 12 Sh. Naveen Grover (Photographer) has deposed that on 18.06.2005, he was working as photographer and was having the shop by the name of Naveen Digital Studio at C3/15, Krishna Nagar, Delhi and on that day at the request of SI Chanderpal Singh he went to the spot i.e. H. No. 28, Ram Nagar Extension under construction house and there at the request of the IO, he have clicked the photographs of the spot. He further deposed that IO recorded his statement to this effect. The witness was shown five photographs and the witness correctly identify the same and the same were exhibited as Ex. PW 12/A1 to Ex. PW 12/A5. He deposed that photographs were digitally clicked therefore there are no negative. Ld. Counsel for accused Man Mohan Rao as no certificate u/s 65 B of Indian Evidence Act is annexed with the photographs.
FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 10 / 15The witness was crossexamined by Ld. Counsel for accused Manmohan Rao and crossexamination was on behalf accused Prem Rani was recorded as 'nil' and opportunity was given for the same.
17. After closing the prosecution evidence, statements of the accused person u/s 313 Cr.P.C was recorded on 19.11.2016. The incriminating evidence/material on record was put to the accused persons in simple language. The accused persons denied the case of the prosecution and stated that they have been falsely implicated in this case. Accused Manmohan Rao stated that the construction work was going on in house No. 27 as well as in house no. 28 and he was working as contractor at house No. 27, however, the incident had occurred at house no. 28. He further stated that he himself had taken the injured to the hospital as only he was having vehicle at that time and 23 persons were also accompanied him He further stated that the contractor of house no. 28 namely Abrar Khan also accompanied him to the hospital. Accused Prem Rani has stated that no construction was going on her premised and the police falsely implicated her in this case.
18. This Court has heard Ld. APP for the State and Ld. Counsel for the accused persons and has also carefully perused the entire record. APPRECIATION OF EVIDENCE :
19. Section 288 of Indian Penal Code are reproduced herein for ready reference : 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 FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 11 / 15 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.
As per section 288 IPC, in order to prove the offence, the prosecution has to prove the following essential ingredients.
(i) The accused was pulling down or repairing the building.
(ii) The accused omitted to take such order with that building as was sufficient to guard against probable danger to human life from the fall of the building or any part thereof;of grievous hurt therefrom.
(iii) The omission complained of was due to negligence or with the knowledge of such probable danger.
20. Section 304A of Indian Penal Code are reproduced herein for ready reference : Section 304A IPC : Causing death by negligence -
Whoever causes the death of any person by doing any rash or negligent act no 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.
21. The main eye/public witness Sh. Abrar @ Munna cited as the prosecution witness has not been been examined by prosecution being untraceable and the said witness was dropped from the list of FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 12 / 15 prosecution witnesses by Ld. Predecessor vide order dated 11.03.2015. The other public witness PW 5 has admitted in his crossexamination by Ld. Counsel for accused Prem Rani that he did not see when Varman @ Urman received the electric shock at H. No. 28. He also could not tell the exact position at the time of incident where deceased Varman @ Urman during his crossexamination by Ld. Counsel for accused Manmohan Rao. As per his own statement, he was doing plaster work at H. No. 27A and deceased Varman @ Urman received electric shock at H. No. 28. He also could not put on record any document or receipt of payment that he was engaged as Raj Mistri/laborer in construction of the house at the spot. Therefore, considering all of the same the doubt is raised regarding the presence of the said witness at the spot at the time of alleged incident and that he was engaged by Manmohan Rao as laborer.
22. PW 9 Sh. Sushil Bhasin has stated himself as owner of house No. 27A and has stated that he has disconnected electric supply at the time of construction of his house and that first floor of house No. 28 belongs to accused Prem Rani, however, no document of ownership put on record by the prosecution to prove the same. It is admitted by PW 6 ASI Raghuraj Singh in his crossexamination that he did not verify ownership at the time of incident. However, PW 6 has deposed that house No. 27A 28 is a combined premises which was under
construction at that time but the same is contradicted by PW 10 who has deposed that house no. 28 was in the name of son of accused Prem Rani and that Prem Rani was not owner of house no. 28. The said fact is also supported by PW 3 who has stated himself to be owner of H. No.
28. No document regarding the ownership put on record to prove the FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 13 / 15 said ownership by the prosecution. PW 10 has admitted in his cross examination that he has not filed any documents which show that accused Manmohan Rao was thekedar for construction of H. No. 28. PW 9 Sushil Bhasin has deposed that he is owner of H. No. 27A, Ram Nagar Extension and his said building i.e. 27A was constructed by Manmohan but nothing has come on record to prove that Manmohan Rao was also the contractor for H. No. 28 where the incident had actually happened.
No contract or agreement showing that the accused Manmohan Rao was the contractor of the building i.e. H. No. 28, Ram Nagar Extension, Delhi has been put on record by prosecution.
23. There are also other many lacunae in prosecution case i.e. (i) During crossexamination of PW 10, he has stated that difference in house No. 27A and 28 was of one floor, however, after seeing the site plan, he has admitted that the same was not shown in the site plant Ex. PW 10/A, (ii) The wire by which the deceased received shock was admittedly not seized by the IO/PW 10 which raises doubts in the case of prosecution and (iii) PW 12 Sh. Naveen Grover has deposed that photographs Ex. PW 12/A1 to Ex. PW 12/A5 of the spot were digitally clicked, however the same were not accompanied with certificate under section 65B of Indian Evidence Act and therefore, could not be taken into consideration.
24. Thus considering the discussion above, the prosecution failed to prove that accused Manmohan Rao was the contractor of premises i.e. H. No. 28, Ram Nagar Extension and that he was negligent in pulling down or repairing the said premises and that due to such rash and negligent act of the said accused, death not amounting to culpable FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 14 / 15 homicide was caused of deceased Varman ali @ Urman. Hence, accused Manmohan Rao stands acquitted for the offences punishable U/s. 288/304A IPC.
25. As accused Prem Rani is PO/absconder, let the file be consigned to record room with liberty to prosecution to get the case revived qua accused Prem Rani as and when she is arrested.
Digitally signed MAHIMA by MAHIMA RAI
Announced in the open court RAI Date: 2018.08.16
17:31:31 +0530
on 16th August, 2018
(MAHIMA RAI SINGH)
Metropolitan Magistrate02,
East District, Karkardooma Courts, Delhi
This judgment contains 15 pages & each page has been signed by me. MAHIMA Digitally signed by MAHIMA RAI RAI Date: 2018.08.16 17:31:47 +0530 (Mahima Rai Singh ) MM02 East District/KKD Courts Delhi/16.08.18 FIR No. 256/05 PS Krishna Nagar State Vs. Manmohan Rao and Anr Page No. 15 / 15