Delhi District Court
State vs Sandeep Saini on 15 October, 2015
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL
SESSIONS JUDGE3, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
SC No. 31/15
ID No. 02406R0127862012
FIR No. 79/12
PS. Mehrauli
U/s. 304/34 IPC
State
Versus
1. Sandeep Saini
S/o. Shri Kushal Singh Saini
R/o. H. No. R61, Khirki Extension
Malviya Nagar
New Delhi. ..... Accused
2. Mohd. Saleem
S/o. Shri Abdul Manan
R/o. Village Sharinda
PS Pran Pur Post Maina Nagar
Distt. Katihar
Bihar ..... Accused
Date of Institution : 25.05.2012
FIR No. 79/12 1/29
St. Vs. Sandeep Saini & Mohd. Saleem
Final arguments heard on : 14.09.2015
Judgment pronounced on : 13.10.2015
Judgment : Convicted
JUDGMENT
Prosecution version unfolded during trial is as under :
1. On 26.02.2012, a wall constructed on third floor of building/property i.e. House No. D27, Chattarpur Extn. New Delhi, fell in the adjoining courtyard as a result of which four children playing in the courtyard were crushed. Information about the incident was received by Inspector Pankaj Singh, the then SHO PS Mehrauli on his wireless set. The information was confirmed by Police Control Room. After receiving the information Inspector Pankaj Singh (PW25) along with SI Parveen Kumar (PW22) reached D27, Chattarpur Extn, New Delhi where Inspector Dalip Kumar and HC Ram Chander were also present. Police officials found that wall has fallen on the back side of property bearing no.
D27, Chattarpur Extn, New Delhi. Local inquiries revealed that owner of the said property is one Baldev Singh who has entered into a collaboration agreement with Sandeep Saini for construction of building. Inquiries further revealed that Baldev Singh, Sandeep Saini and one Mohd. Saleem were constructing the building. Four FIR No. 79/12 2/29 St. Vs. Sandeep Saini & Mohd. Saleem children who were crushed under the wall were taken to the hospital by PCR. Inspector Pankaj Singh (PW25) found that the wall which had fallen was unplastered wall without any external support. The wall was constructed in parts and portion with length of 9.5 ft had fell down. Wall of the height of 4.5 feet was constructed on the 3rd floor. Length of the wall was found to be 60 feet while the width was 34 feet. In the meanwhile, information was received from Safdarjung Hospital that all the four children had died. Inspector Pankaj Singh collected MLC's of all the children. Crime team was called at the spot and photographs of spot were taken. Local Sub Divisional Magistrate and MCD officials also reached the spot. MCD officials told Inspector Pankaj Singh (PW25) that remaining portion of wall, which fell, is very weak and can fall down at any point of time and therefore, remaining portion of wall was demolished by MCD with the help of labourers. Thereafter, FIR u/s. 304/288 IPC was registered. Statements of parents of deceased children and other public witnesses were recorded. Accused Sandeep Saini and Mohd. Saleem were arrested. Accused Sandeep Saini disclosed that in October 2011, he had entered into a collaboration agreement with Baldev Singh for raising construction on property bearing no. D27, Chattarpur Extn, New Delhi. Accused Sandeep Saini further FIR No. 79/12 3/29 St. Vs. Sandeep Saini & Mohd. Saleem disclosed that a contract for constructing the building was given to Mohd. Saleem. Postmortem on the body of deceased children was conducted and Investigating Officer obtained postmortem report. On 28.02.2012, Baldev Singh surrendered in the Court and was formally arrested. Thereafter, investigation was taken over by Inspector Pankaj Singh. Documents from MCD regarding unauthorised construction were obtained. Inspector Parveen Kumar (PW22) (1st Investigating Officer) lifted sample of building material from the roof of third floor of building from where the wall fell as well as from the debris of the wall lying on the back side of the building on the ground floor. These samples were sent for expert opinion to FSL. It was found during investigation that Baldev Singh, Sandeep Saini and Mohd. Saleem were constructing a multi storied building in an unauthorised colony without any permission from MCD or other authorities. Information about the illegal construction was given by Police Station Mehrauli to MCD (South Zone) as well as concerned Sub Divisional Magistrate Hauz Khas. MCD has also issued notice on 09.02.12 u/s. 344 (I) and 343 DMC Act asking accused persons to stop illegal construction. However, accused persons did not give any reply to the said notice. After completion of investigation, accused Sandeep Saini, Mohd. Saleem and Baldev Singh were charge FIR No. 79/12 4/29 St. Vs. Sandeep Saini & Mohd. Saleem sheeted u/s. 304/34 IPC.
2. Accused Baldev Singh was discharged vide order dated 04.10.2012 on the ground that according to collaboration agreement between Baldev Singh and Sandeep Saini. Accused Baldev Singh had no say in the matter of construction and accused Sandeep Saini and Mohd. Saleem were charged u/s. 304II/34 IPC. Accused Sandeep Saini and Mohd. Saleem pleaded not guilty and claimed trial.
3. I have heard learned Additional Public Prosecutor for the State as well as Mr. Dharmender Arya, learned counsel for accused Sandeep Saini. Mr. Dharmender Arya, learned counsel for accused addressed arguments on behalf of accused Mohd. Saleem as well with consent of accused Mohd. Saleem and his counsel Mr. S.P. Verma.
4. Prosecution examined 29 witnesses to prove the charge against accused persons. Accused Sandeep Saini as well as accused Mohd. Saleem were examined u/s. 313 Cr.PC wherein accused persons denied all the incriminating circumstances against them. Three defence witnesses were examined on behalf of accused persons.
5. PW1 Rajeev Kumar Singh, UDC, RP Cell, SDMC, brought the original record pertaining to booking and maintaining building FIR No. 79/12 5/29 St. Vs. Sandeep Saini & Mohd. Saleem no. D27, Chattarpur Extn. New Delhi. PW1 Rajeev Kumar Singh deposed that on 16.02.2012, permission for issue of demolishing notice Exhibit PW1/C u/s. 343 DMC Act of the aforesaid building was sought. PW1 Rajeev Kumar Singh further deposed that on 16.02.2012, order of demolition of said building was issued and the copy of notice Exhibit PW1/D was also pasted at the site by Junior Engineer (Building), South Zone. PW1 Rajeev Kumar Singh further deposed that on 23.02.2012, order for demolishing the abovesaid building was issued and on 29.02.2012, demolition action was taken on the said building vide order Exhibit PW1/E.
6. PW2 Arvind Kumar, PW3 Smt. Nirmala Devi, PW5 Dharam Pal, PW6 Smt. Meenakshi and PW7 Vinod Tiwari, are the parents of children who died in the incident. These witnesses deposed that on 26.02.2012 at about 12 noon, a wall fell because of which their children died. However, these witnesses did not support the prosecution case and were declared hostile.
7. PW10 Dr. Kashika, Medical Officer, Safdarjung Hospital, New Delhi, examined the deceased children when they were brought to the hospital and prepared their MLC's. PW10 Dr. Kashika, proved the MLC of deceased Monu Exhibit PW10/A, MLC of deceased Divya as Exhibit PW10/B, MLC of deceased Nitin as Exhibit PW10/C, MLC of deceased Gaurav Sharma as FIR No. 79/12 6/29 St. Vs. Sandeep Saini & Mohd. Saleem Exhibit PW10/D.
8. PW13 Dr. Rajesh Kumar, Jr. Resident, Department of Forensic Medicine and Toxicology, AIIMS, New Delhi, conducted postmortem on the body of deceased Monu and prepared detailed report Exhibit PW13/A wherein he opined that cause of death to the best of his knowledge and believe was shock due to craneo cerebral injury caused by blunt external forces, which could be possible in fall of part of wall from height.
9. PW14 Dr. Varnit, Jr. Resident, Department of Forensic Medicines and Toxicology, AIIMS, New Delhi, conducted postmortem on the body of deceased Gaurav Sharma and prepared postmortem report Exhibit PW14/A stating that cause of death in this case was craneo cerebral injuries caused by blunt external forces, which could be possible as per history mentioned in postmortem report. PW19 Dr. Hans Raj Singh, conducted postmortem on the body of deceased Divya and prepared his postmortem report Exhibit PW19/A. PW19 Dr. Hans Raj Singh also conducted postmortem on the body of deceased Nitin Kumar Exhibit PW19/B stating that cause of death was shock due to cranio cerebral injuries caused by blunt force impact.
10. PW15 HC Devender Kumar, who was working as Duty Officer at PS Mehrauli at the relevant time, registered FIR in this FIR No. 79/12 7/29 St. Vs. Sandeep Saini & Mohd. Saleem case. PW15 HC Devender Kumar proved the copy of FIR as Exhibit PW15/A. PW17 HC Ram Chander, after receiving information about the incident on 26.02.2012 vide DD No. 29A Exhibit PW11/A, reached the place of incident along with Ct. Vijay and found that wall of H. No. D27, Chattarpur Extn. New Delhi, fell in the courtyard adjoining to the said house where some tenants were residing. PW17 HC Ram Chander also recorded the information that some children had come under the said wall and those children were taken to hospital their family members/neighbourers. PW17 HC Ram Chander further deposed that he went to third floor of D27, Chattarpur Extn. New Delhi and found that on the third floor of said building, there was construction of wall about 4 feet of height from three side of the building and there was no column, sariyas and plaster used on the wall, for supporting the newly constructed wall.
11. PW20 HC Jagpal Singh accompanied Inspector Pankaj Singh (Investigating Officer/PW25) to the spot on 26.02.2012 and found that building was constructed upto third floor and the wall which had fallen was constructed on the roof of third floor of the said building and the height of that wall was about 4 ½ feet which was a single brick wall. PW20 HC Jagpal Singh further deposed that MCD also demolished the remaining portion of the wall FIR No. 79/12 8/29 St. Vs. Sandeep Saini & Mohd. Saleem which had fallen down.
12. PW21 Inspector Naresh Kumar was posted as Incharge Crime Team at the relevant time. He visited the spot along with his team and inspected the scene of crime and prepared Scene of Crime Report Exhibit PW21/A.
13. PW22 Inspector Parveen Kumar who is the first Investigating Officer of this case, inter alia deposed that he reached House No. D27, Chattarpur Extn. New Delhi with Inspector Pankaj Singh (PW25) and other police officials and found that property no. D27, Chattarpur Extn. New Delhi was under construction on its western side portion. From the roof of third floor i.e. fourth floor, a portion of the boundary wall had fallen down in the courtyard. PW22 Inspector Parveen Kumar further deposed that eastern portion of the said property was single storeyed rooms, which was being used for the residence of families of labours and between these rooms and the under construction building, there was a courtyard, in which, the wall from the roof had fallen, the wall that had fallen was having 4.5 feet of height and was a single bricked wall and was on the top of the roof. There was no plaster on the said wall. The wall was on the three sides of the roof, which was 60 feet long and 34 feet wide. PW22 Inspector Parveen Kumar further deposed that MCD FIR No. 79/12 9/29 St. Vs. Sandeep Saini & Mohd. Saleem staff inspected the wall which was constructed on the roof of the third floor and found that it was weak, so, they started demolishing the wall, PW22 Inspector Parveen Kumar prepared ruqqa Exhibit PW22/A and also prepared site plan Exhibit PW22/B. PW22 Inspector Parveen Kumar further deposed that on inquiry, he came to know that owner of the said land/building is one Baldev Singh and he had entered into an agreement for the construction of same with Sandeep Saini. PW22 Inspector Parveen Kumar further deposed that he came to know that said building was constructed by Baldev Singh, Sandeep Saini and Saleem. PW22 Inspector Parveen Kumar further deposed that on 29.02.2012, PW22 along with Investigating Officer/Inspector Pankaj Singh and other staff went to the house of accused Baldev Singh and from his house, notorized photocopy of GPA, Will and possession letter dated 10.10.2011, GPA and Will dated 05.10.2001, etc. in respect of construction of House No. D27, Chattarpur Extn. New Delhi, were recovered. According to PW22 Inspector Parveen Kumar that accused Sandeep Saini got recovered collaboration agreement Exhibit PW22/H executed between him and accused Baldev Singh from his house. PW22 Inspector Parveen Kumar in cross examination deposed that PW22 lifted sample of brick/mortar, etc. right from the place of roof from where wall had been erected FIR No. 79/12 10/29 St. Vs. Sandeep Saini & Mohd. Saleem and also from debris of wall lying on the back side of the building on ground floor.
14. PW25 Inspector Pankaj Singh (Second Investigating Officer of this case) collected documents with respect to House no. D27, Chattarpur Extn. New Delhi viz. photocopy of restrainment order dated 12.12.2011 signed by SDM. Hauz Khas, photocopy of police information dated 18.01.2011 and reminder to MCD dated 25.02.2012, photocopy of DD No. 62B dated 18.01.2011, DD No. 49B dated 14.11.2011. During cross examination, PW25 Pankaj Singh denied the suggestion that PW25 had also seized construction agreement which was entered into between accused Mohd. Saleem and Sandeep Saini. Photocopy of said construction agreement was put to PW25 Inspector Pankaj Singh and same was taken on record as Mark 25/DA.
15. As mentioned above, Baldev Singh was discharged vide order dated 14.10.2012 on the ground that after executing collaboration agreement, Baldev Singh has no role in the matter of construction. The role of accused Sandeep Saini is on similar footing. Mr. Dharmender Arya, learned counsel for accused Sandeep Saini, submitted that principle of vicarious liability is not applicable in criminal cases unless specifically provided e.g. Section 34/149 IPC etc. I find force in the aforesaid submission of FIR No. 79/12 11/29 St. Vs. Sandeep Saini & Mohd. Saleem learned counsel for accused Sandeep Saini.
16. Accused Sandeep Saini entered into construction agreement dated 08.10.2011 with accused Mohd. Saleem for constructing four storeyed building on property bearing no. D27, Chattarpur Extn. New Delhi. Although, the original agreement dated 08.10.2011 had not come on record, however, photocopy of said agreement was put to PW25 Inspector Pankaj Singh and was taken on record as Mark-25/DA. When accused Mohd. Saleem was examined u/s. 313 Cr.PC, he admitted that agreement dated 08.10.2011 Mark 25/DA was executed between accused Sandeep Saini and him. In other words, accused Mohd. Saleem admitted the construction agreement dated 08.10.2011 executed between him and accused Sandeep Saini. Section 58 of Indian Evidence Act lays down that no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.
17. Therefore, copy of agreement dated 08.10.2011 is admissible in evidence against accused Mohd. Saleem. It is laid down in clause 1 of the agreement Mark25/DA that the First Party i.e. FIR No. 79/12 12/29 St. Vs. Sandeep Saini & Mohd. Saleem Mohd Saleem, shall arrange all the construction materials for construction of the structure of the said building and the First Party i.e. Mohd Saleem, shall hand over the semi finished (complete plaster) structure to the Second Party i.e. Sandeep Saini, within the stipulated period. It is also provided under clause 1 of the said agreement that the First Party i.e. Mohd Saleem, shall construct the structure of the said building to the Second Party i.e. Sandeep Saini, with his own labour on the said plot of land which will consist of four story building. Clause 3 of the agreement Mark 25/DA envisages that First Party i.e. Mohd Saleem, shall build the said structure of the said building under his direct personal supervision and with the best workman like manner and shall not on any account whatsoever, employ a subcontractor for the construction of the same. It is further laid down in clause 4 of the agreement Mark 25/DA that the First Party i.e. Mohd Saleem, shall remain liable to and shall indemnify the Second Party i.e. Sandeep Saini, or any other third party in respect of all causes of action, claims, damages, compensation or costs charges and expenses arising out of any accident or injury sustained by any claimant or any workman or other person, on the construction site during the construction and till the completion of the said structure of the said building.
FIR No. 79/12 13/29 St. Vs. Sandeep Saini & Mohd. Saleem
18. The aforesaid clauses of agreement Mark25/DA absolves accused Sandeep Saini from any liability on account of any injuries or other damages received by any person during construction. It can be safely inferred from various clauses of agreement Mark25/DA that accused Sandeep Saini was not incharge of construction being carried out at property no. D27, Chattarpur Extn. New Delhi. Hence, charge u/s. 304II/34 IPC could not be proved against accused Sandeep Saini. Accordingly, accused Sandeep Saini is acquitted of the charge framed against him.
19. Accused Mohd. Saleem has been chargesheeted u/s 304 (II)/34 IPC. Punishment for culpable homicide not amounting to murder is provided u/s 304 IPC. Offence of culpable homicide is defined u/s 299 as "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide". Doing an act with intention to kill a person or knowledge that doing of an act was likely to cause a person's death are ingredients of offence of culpable homicide. In the present case, the knowledge that accused Mohd. Saleem, by constructing a wall on the third floor of the building, was likely to FIR No. 79/12 14/29 St. Vs. Sandeep Saini & Mohd. Saleem cause the death of children cannot be attributed to accused Mohd. Saleem. In other words, ingredients of section 299 IPC are not proved and hence, charge u/s 304 (II) IPC could not be proved against accused Mohd. Saleem.
20. However, constructing a single brick wall of the height of 4.5 feet on the roof of third floor of the building leaving it un protected and not giving it any external support would bring the act of accused Mohd. Saleem within the ambit of section 304 (A) IPC. To impose criminal liability u/s 304 A IPC it is necessary that death should have been a direct result of a rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another's negligence. Section 304 A IPC carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide u/s 299 IPC or murder u/s. 302 IPC.
21. It is abundantly clear from the evidence adduced by the prosecution that a wall constructed on the property bearing no. D27 Chhatarpur Extn. New Delhi, fall as a result of which four children died. It is also established beyond doubt that the said wall was constructed by accused Mohd. Saleem as evidenced by the construction agreement dated 08.10.2011 executed between accused Mohd. Saleem and Sandeep Saini.
FIR No. 79/12 15/29 St. Vs. Sandeep Saini & Mohd. Saleem
22. As discussed above, it transpires from a bare reading of agreement Mark25/DA that the building at property bearing no. D27, Chhatarpur Extn. New Delhi, including the wall on the roof of the third floor which fell was being constructed by accused Mohd. Saleem. PW20 HC Jagpal Singh deposed that the owner of the building was Baldev Singh, who had given it to accused Sandeep Saini in collaboration and the building was being constructed by one Contractor Saleem.
23. It has also come in evidence through the depositions of PW22 Inspector Parveen Kumar, PW23 Inspector Dalip Kumar and PW17 HC Ram Chander that the accused Mohd. Saleem constructed a single brick wall of the height of 4.5 feet on the roof of third floor of the building constructed on the property bearing no. D27, Chhatarpur Extn. New Delhi. These prosecution witnesses also deposed that there was no plaster on the said floor and no scaffolding/external support of the bamboo etc. was given to that wall. Mr. Dharmender Arya, learned defence counsel referred to the deposition of PW2 Arvind Kumar, PW3 Nirmala Devi, PW5 Dharam Pal, PW6 Meenakshi, PW21 Inspector Naresh, wherein it is stated that bamboos were installed with the building to support the construction work. So far as PW2 Arvind Kumar, PW3 Nirmala Devi, PW5 Dharam Pal and PW6 FIR No. 79/12 16/29 St. Vs. Sandeep Saini & Mohd. Saleem Meenakshi are concerned, they turned hostile despite the fact that some of them lost their own children in the accident. Therefore, the possibility of these witnesses being won over by the accused cannot be ruled out. PW21 Inspector Naresh did not specifically depose that bamboos were installed to support the wall constructed on the third floor of the building. In this regard deposition given by PW22 Inspector Praveen Kumar in cross examination is quite relevant wherein PW22 Inspector Praveen Kumar deposed that there was no bamboo scaffolding at the back side of the building. Even from the photographs available on record, it is clear that the bamboo support is given to the building only upto third floor and no external support given to the remaining portion of the wall that fell is shown in the photographs Exhibit PW8/A1 to A22. Mr. Dharmender Arya, learned defence counsel submitted that PW17 HC Ram Chander has deposed in cross examination that three photographs viz. Exhibit PW8/A11, PW8/A12 and PW8/A13 were not of the building where incident has taken place. Mr. Dharmender Arya, learned defence counsel submitted that PW17 HC Ram Chander in cross examination deposed that photograph Exhibit PW8/A11, PW8/A12, PW8/A13 are not of the building where incident happened. Learned defence counsel thus sought to emphasis that police clicked photographs of the nearby FIR No. 79/12 17/29 St. Vs. Sandeep Saini & Mohd. Saleem building and placed the same on record to mislead the Court as if these photographs are of building constructed at property bearing no.D27, Chattarpur Extn. New Delhi
24. PW8 Ct. Jaivir Singh who clicked these photographs and proved the same along with negatives in the Court deposed in cross examination as Exhibit PW8/A11, PW8/A12, PW8/A13 and PW8/A19 were taken by him from the front of property in question. Other witnesses have also identified the property in question after the photographs available on record were shown to them. Therefore, the deposition by one witness to the effect that photograph Exhibit PW8/A11, PW8/A12, PW8/A13 and PW8/A19 are not of same building will not prove that IO placed on record photographs of some other building.
25. Mr. Dharmender Arya, learned defence counsel, then submitted that the real cause of the fall of the wall was given by PW5 Dharampal and PW6 Meenakshi. PW6 Smt. Meenakshi deposed that on 26.02.2012 she was present in her house and was washing clothes. At about 12 noon, PW6 Meenakshi saw that two laborers were working on the third floor of the building which was adjacent to the room of PW6 Meenakshi. PW6 Meenakshi further deposed that one of them pushed the other, who fall on the wall due to which the said collapsed and the debris fell down on FIR No. 79/12 18/29 St. Vs. Sandeep Saini & Mohd. Saleem the children, who were playing on the ground floor. PW6 Meenakshi further deposed that her two children viz. Divya and Gaurav were also crushed under the all alongwith two children of other neighbourers. It transpired from a careful analysis of the deposition of prosecution witnesses that story of two laborers work on the third floor of the building, one of them pushing the other who fell down on the wall due to which the wall collapsed has come only in the deposition of PW6 Meenakshi. DW3 Ziyaul deposed that on the date of incident, he along with other persons was sitting at some distance from the place where wall had fallen, they heard voice and when they saw around, they saw that two persons on the roof from where wall had fall, were trying to ran away. PW5 Dharampal deposed that his wife told him about this story. Therefore, the deposition of PW5 Dharampal in this regard is not admissible in evidence as same is hearsay evidence. In cross examination in chief PW6 Meenakshi deposed that two laborers were working on the third floor, while in cross examination PW6 Meenakshi deposed that these two persons were not working but they were only pushing each other. Thus, PW6 Meenakshi gave two different versions on such a vital aspect of the matter. Therefore, PW6 Meenakshi is not a reliable witness. In any case PW6 Meenakshi, turned hostile and did not support the case of FIR No. 79/12 19/29 St. Vs. Sandeep Saini & Mohd. Saleem the prosecution. In fact during her testimony, PW6 Meenakshi tried to give a clean chit to the accused despite losing her two children in the accident. Hence the possibility of PW6 Meenakshi being won over by the accused to give a false story that the wall fall because of the scuffle between the two laborers cannot be ruled out. None of the prosecution witnesses, who lost their children in the accident approached the police or other authorities for apprehension of those two laborers, who according to the accused, were responsible for the fall of the wall. The testimony of DW3 Ziyaul fails to inspire the confidence of the Court as his presence at the spot at the time of incident is doubtful. Further, DW3 Ziyaul could not explain as to why he did not make any complaint to senior police officials when he saw that two persons from the roof from where wall had fallen were trying to ran away.
26. It also stands proved on record that MCD objected to the construction of building at property bearing no.D27, Chhatarpur Extn. New Delhi and the permission for issue of demolition notice u/s 343 of the Delhi Municipal Corporation Act Exhibit PW1/C was issued. Thereafter on 16.02.2012, order for demolition of the said building was issued and notice Exhibit PW1/D in this regard was also posted on the site by Junior Engineer (Building) (South) Zone. On 23.02.2012, the demolition order ExhibitPW1/E was FIR No. 79/12 20/29 St. Vs. Sandeep Saini & Mohd. Saleem issued.
27. Mr. Dharmender Arya, ld. counsel for accused submitted that PW1 Rajeev Kumar Singh, UDC, posted at RP Cell, South Delhi Municipal Corporation was not competent to prove the document Exhibit PW1/A, Exhibit PW1/B, Exhibit PW1/C, Exhibit PW1/D and Exhibit PW1/E. The said witness brought the certified true copies of these documents and has deposed about these documents on the basis of official record and was competent to prove these documents and these documents are admissible in evidence. The action taken by the MCD viz permission for issue of demolition notice, order of demolition etc. constitute incriminating circumstances against accused Mohd. Saleem and proved rashness and negligence act on the part of accused Mohd. Saleem. It has also come in the evidence that MCD staff inspected the wall constructed on the third floor of the building and found that it was week and they started demolishing the wall. It is not disputed that remaining wall on the third floor of the building was demolished by the MCD after the incident. This further proves that accused Mohd. Saleem negligently raised construction of a weak single brick wall on the third floor upto the height of 4.5 feet and left it unplastered and without any external support as a result of which it fall resulting into the death of four innocent children. FIR No. 79/12 21/29 St. Vs. Sandeep Saini & Mohd. Saleem
28. Scientific evidence is also on record. PW22 Inspector Parveen Kumar lifted the samples of brick/mortar, etc. right from the place of the roof from where the wall had been erected. PW22 Inspector Parveen Kumar also lifted samples from the debris of the wall lying on the back side of the building on the ground floor. These samples were sent to Forensic Science Lab FSL Rohini for examination.
29. PW29 Dr. C.P. Singh, Assistant Director (Physics) FSL, Rohini deposed that he examined the exhibits deposited in this case and gave his report Exhibit PW29/A. In the report Exhibit PW29/A prepared by PW29 Dr. C.P. Singh, Parcel1 showing brick and mortar samples were Marked as Exhibit1 and Parcel containing mortar sample was marked as Exhibit2. It is stated in the report Exhibit PW29/A that on physical test of the mortar sample in Exhibit 1 and Exhibit 2, the proportion of the cement and sand was found to be 1:12 and 1:6 by weight respectively. From the seizure memo Exhibit PW20/A it is clear that sample that was lifted from the ground was mentioned as Exhibit 1 in the FSL Report Exhibit PW29/A and the samples that was lifted from the roof of the third floor of the building from where the wall fall was mentioned as Exhibit 2 in Report Exhibit PW29/A.
30. Mr. Dharmender Arya, learned defence counsel submitted FIR No. 79/12 22/29 St. Vs. Sandeep Saini & Mohd. Saleem that samples lifted by the Investigating Officer from the ground was not pure as soil and other construction material lying on the ground got mixed with the material that fell from the third floor. Another argument of Mr. Dharmender Arya was that no expert was examined by the prosecution to prove that the construction of a single brick wall without the support is dangerous. Mr. Dharmender Arya, further argued that no expert was examined by the prosecution to find out in what ratio the sand and cement ought to have been used. Mr. Dharmender Arya, learned counsel for accused Sandeep Saini, in this regard referred to the deposition of DW1 Ishu Motwani and DW2 Dr. S.K. Shukla.
31. Even if these arguments are accepted, the portion of the cement and sand found in the sample lifted by the Investigating Officer from the roof of third floor of the building was 1:6. The court with the aid of Section 114 of the Indian Evidence Act may presume that the use of cement and sand in the ratio of 1:6 indicates use of poor quality building material by accused Mohd. Saleem. DW1 Ishu Motwani, deposed that he personally checked the entire building from bottom to top and the wall and frame structure in the building was as per the drawing as well as as per the structural standard of engineering. Perusal of testimony of DW2 Dr. S.K. Shukla reveals that he was examined only to point FIR No. 79/12 23/29 St. Vs. Sandeep Saini & Mohd. Saleem out defects/lacunae in FSL report Exhibit PW29/A. DW2 Dr. S.K. Shukla were examined as defence witness solely at the instance of accused and the said witnesses will obviously be biased towards the accused.
32. Raising a single brick wall of the height of 4.5 feet on the third floor of the building leaving it unplastered and unsupported with external support constitutes a rash and negligent act on the part of the accused and therefore, the rashness and the negligence on the part of accused Mohd. Saleem stands proved even without any expert opinion in this regard.
33. The obvious conclusion is that prosecution has proved beyond reasonable doubt that accused Mohd. Saleem constructed the single brick wall of the height of 4.5 feet on the roof of third floor of property bearing no. D27, Chattarpur Extn. New Delhi in a rash and negligent manner which resulted in death of four children. Accordingly, accused Mohd. Saleem is convicted u/s. 304A IPC.
34. Facts of this case indicate highly deprecable nexus between the officials of MCD, police officials and contractor. It has come in evidence that concerned police officials as well as MCD officials were well aware of the illegal construction being raised at property bearing no. D27, Chattarpur Extn. New Delhi. However, FIR No. 79/12 24/29 St. Vs. Sandeep Saini & Mohd. Saleem no effective steps were taken by police officials and MCD officials to prevent the illegal construction on said property. Had the MCD officials and police officials acted in time to prevent illegal construction at property bearing no. D27, Chattarpur Extn. New Delhi, four innocent lives could have been saved.
Let accused Mohd. Saleem be heard on the point of sentence.
Announced in open Court (Sandeep Yadav) Additional Sessions Judge3 (South) Saket Courts, New Delhi/13.10.2015 FIR No. 79/12 25/29 St. Vs. Sandeep Saini & Mohd. Saleem IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE3, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 31/15 ID No. 02406R0127862012 FIR No. 79/12 PS. Mehrauli U/s. 304/34 IPC State Versus Mohd. Saleem S/o. Shri Abdul Manan R/o. Village Sharinda PS Pran Pur Post Maina Nagar Distt. Katihar Bihar. ..... Accused ORDER ON SENTENCE 15.10.2015 Pr. Mr. Rakesh Mehta, Additional Public Prosecutor for State Mr. S.P. Verma, Advocate for convict Convict Mohd. Saleem in person
1. Arguments on the quantum of sentence heard. Convict FIR No. 79/12 26/29 St. Vs. Sandeep Saini & Mohd. Saleem Mohd. Saleem has been convicted u/s. 304A IPC vide judgment dated 13.10.2015. Facts proved against convict Mohd. Saleem are that accused Mohd. Saleem raised construction of wall on the third floor of property bearing House No. D27, Chattarpur Extn. New Delhi and the wall fell as a result of which four children who were playing in adjoining courtyard were crushed and died.
2. Mr. S.P. Verma, learned counsel for convict submitted that convict has already spent about 9 ½ months in custody during trial. Learned counsel for convict further submitted that convict's family consists a sister, two younger brothers and parents who are totally dependent on him for their survival. Learned counsel for convict further submitted that there is no previous conviction of convict in any case. Learned counsel for convict further submitted that convict at the time of commission of crime was 20 years aged and hence is entitled to be released on probation of good conduct u/s. 360 IPC. Learned counsel for convict further submitted that convict has just started his life and his life will be spoiled if he is kept in the company of hardened criminals and convict should be given chance for reformation. Learned counsel for convict further submitted that since convict has already spent 9 ½ months in custody, he may be sentenced for the period of custody already undergone by him.
FIR No. 79/12 27/29 St. Vs. Sandeep Saini & Mohd. Saleem
3. Learned Additional Public Prosecutor for State submitted that four life's were lost because of the acts of convict and therefore, convict does not deserve any leniency.
4. As discussed above, four innocent children died on account of acts/omissions of accused. Any lenient approach in such cases will send a wrong signal. Considering the calamitous impact and enormity of the tragedy which resulted on account of the acts of convict. Therefore, convict deserves maximum punishment provided u/s. 304A IPC.
5. Accordingly, convict Mohd. Saleem is sentenced to simple imprisonment for two years (2 years) and a fine of Rs. 10,000/. In default of payment of fine, convict shall undergo simple imprisonment for four months (4 months). Benefit of section 428 Cr.PC is extended to convict. Period of detention already undergone by convict shall be adjusted against the sentence awarded to him.
6. The question of payment of compensation to heirs/parents of deceased does not arise as parents of deceased turned hostile during trial.
At this stage - convict has moved an application u/s. 389 Cr.PC for suspension of sentence till filing of appeal. Convict has already prayed in the application that he be released on bail till filing of appeal. From FIR No. 79/12 28/29 St. Vs. Sandeep Saini & Mohd. Saleem the submissions of learned counsel for convict as well as averments of the application, it is seen that convict intends to file an appeal against the judgment dated 13.10.2015 and order on sentence dated 15.10.2015. Accordingly, convict is admitted to bail on furnishing personal bond in the sum of Rs. 20,000/ with one surety of like amount. Bail bond and surety bond furnished and accepted for a period of 30 days to enable the convict to file appeal.
Copy of judgment dated 13.10.2015 and order on sentence be given to convict immediately.
List on 16.11.2015.
Announced in open Court (Sandeep Yadav)
Additional Sessions Judge3 (South)
Saket Courts, New Delhi/15.10.2015
FIR No. 79/12 29/29
St. Vs. Sandeep Saini & Mohd. Saleem