Delhi District Court
State vs . Mohd Arzan on 22 September, 2021
IN THE COURT OF MS. RAJAT GOYAL, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET
COURTS, SAKET, NEW DELHI
JUDGMENT
STATE VS. Mohd Arzan
FIR NO: 450 /2015
P. S. Jamia Nagar
U/s 338 IPC
a Sl. No. of the case : 94344/2016
b Date of commission : 02.04.2015
c Date of institution of the case : 05.11.2015
d Name of the complainant : Imran Khan
e Name of the accused and his : Mohd. Arzan, S/o Sh. Abul Kalam
parentage Azad, R/o House no. 1067/12,
Gadha Colony, Jaitpur, Badapur,
New Delhi.
f Offence complained of : 338 IPC
g Plea of accused : Not guilty
h Orders reserved on : 18.09.2021
i Final order : Accused Mohd Arzan is acquitted
for the offence punishable under
section 338 IPC.
j Date of judgment : 22.09.2021
1. Briefly stated, case of the prosecution is that accused Mohd.
Arzan was the contractor for construction/ rennovation which was being carried out at Al Nawaz Hotel, A-50, Abul Fazal Enclave, FIR No.450 /2015 PS Jamia Nagar PAGE 1 OF PAGE 7 Jamia Nagar, New Delhi and that accused failed to arrange for any safety measures at the said construction site and thus, acted in a rash and negligent manner so as to endanger human life or personal safety of others. It is further the case of the prosecution that on 02.04.2015, at about 3.00 pm, at Al Nawaz Hotel, A-50, Abul Fazal Enclave, Jamia Nagar, New Delhi, within the jurisdiction of PS Jamia Nagar, complainant/injured Nazmul, fell down from padding while plastering the wall of the said hotel due to failure of accused to provide adequate safety measures and that the said injured suffered grievous hurt due to rash and neglient act of the accused. On the basis of complaint given by the complainant, present FIR was lodged. After completion of the investigation, IO filed the chargesheet for offence punishable u/s 338 IPC.
2. Cognizance was taken in the present matter vide order dated 09.12.2015 and accused was summoned. After compliance of provisions of section 207 Cr.P.C., matter was fixed for consideration on notice. On the basis of material on record, notice u/s 338 IPC was framed upon the accused, to which the accused pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution has examined 8 witnesses. PW1 was one Mohd. Azmal, who stated that his brother Nazmul fell down while carrying out plaster work at Abul FIR No.450 /2015 PS Jamia Nagar PAGE 2 OF PAGE 7 Fazal Enclave. The said witness was cross examined by Ld. APP for the State on the ground that he was resiling from his earlier statement. During his cross examination, PW1 stated that there was only one wooden platform at the construction site and that there was no net and that the accident in question occurred due to negligence of the accused in not providing adequate safety measures. PW2 was injured Nazmul, who stated that he was carrying out the work of plastering at the site in question on 02.04.2015 and that he had asked the accused for safety articles and that accused had told him that he should start the work nevertheless. It was further stated by PW2 that he fell down and sustained injuries as accused did not provide any safety measures. PW3 was ASI Gajender Singh, who stated that he went to the spot with Ct. Jeevan Giri on 02.04.2015 on receipt of DD no. 27 A and that he then collected MLC of injured Nazmul from the hospital. He further stated that he recorded statement Ex.PW 1/A of the complainant/brother of injured at the hospital. He also stated that he prepared rukka Ex.PW 3/A and got the present FIR registered and prepared site plan Ex.PW 1/B at the instance of complainant and arrested the accused vide memo Ex.PW 3/B. PW3 also correctly identified accused in the court. PW4 was one Raisuddin, who stated that one agreement Ex. PW4/A was executed between accused and one Nawab Ahmad and that he later on came to know that one person had suffered injuries while carrying out work with respect to the said agreement. PW5 was Dr. Abdul Rehman, who stated that FIR No.450 /2015 PS Jamia Nagar PAGE 3 OF PAGE 7 MLC Ex.PW5/B was prepared by Dr. Munish on 02.04.2015 on the basis of examination of injured Nazmul. He also tendered into evidence X-ray reports as Ex.PW5/C (Colly) and MRI Scan Reports as Ex.PW5/D (OSR). PW6 was Dr. Syed Rehan Hussain, who stated that he had prepared reports Ex.PW5/C (Colly) on the basis of radiological examination of injured Nazmul and that he also prepared CT Scan report Ex.PW6/A. PW7 was HC Jeevan Giri, who stated that he went to the hospital with IO on 02.04.2015 on receipt of DD no. 27 A and that they then collected MLC of the injured. PW7 further stated that the IO recorded statement of complainant, prepared tehrir and got the present FIR registered through him. He also proved arrest of the accused vide memo Ex.PW 3/B. PW-8 was one Rubina Yasmeen, who stated that on 09.10.2014, she was notary public, Govt. of India and on that day she had attested agreement of contract between Nawab Ahmad and Irzan vide registered serial no. 234/14.
4. Thereafter, statement of the accused Mohd Arzan under section 313 Cr.P.C. was recorded, wherein he stated that he was the contractor for the work of plastering at the site in question and that he had arranged for double padding as safety precaution. It was further stated by the accused that accident in question did not take place due to his lapse. Matter was thereafter fixed for final arguments as accused stated that he did not wish to lead any FIR No.450 /2015 PS Jamia Nagar PAGE 4 OF PAGE 7 evidence in his defence.
5. It was argued by Ld. APP for the State that all the requirements of section 338 IPC have been duly fulfilled in this case and that guilt of the accused has been established beyond reasonable doubt. On the other hand, it has been argued by Ld. Counsel for accused that accused has been falsely implicated in this case and that accident in question did not occur due to rashness or negligence of the accused.
6. I have heard arguments of both the sides and perused the record.
7. As stated above, accused has been charged under section 338 IPC in this matter. In order to establish the said charge against the accused, it must be proved that conduct of the accused was rash or negligent and of nature so as to endanger human life or personal safety of others. It must further be proved that incident in question took place due to such rash or negligent act of the accused and that injured had suffered grievous hurt due to such rashness or negligence of the accused. It has been alleged by the prosecution that incident in question occurred when injured/ Nazmul fell while carrying out plastering work at the site in question and that the same was due to lack of adequate safety measures. Accused has admitted that he was FIR No.450 /2015 PS Jamia Nagar PAGE 5 OF PAGE 7 the contractor for carrying out the plastering work in question. However, as stated above, it was the bounden duty of the prosecution to prove that it was the lack of safety measures which had resulted in the incident in question. However, prosecution has miserably failed to prove the same. The entire prosecution case is based on surmises and conjectures. Though it has been claimed that incident in question occurred due to lack of safety measures, the entire prosecution case is silent as to the nature of safety measures which ought to have been provided by the accused to prevent the incident in question. Even injured/ PW2 merely stated in his testimony though he asked for 'safety articles', the same were not provided by the accused. However, neither PW2, nor any other prosecution witness elaborated on the said 'safety articles' or other safety measures which accused had failed to provide. It must be noted here that though it was stated by PW1 during his cross examination that incident in question would not have occurred had accused arranged for two wooden platforms instead of one, there is no rationale / basis for this observation of PW1. However, the same is only subjective opinion of the witness. Prosecution has neither cited nor examined any expert witness to prove that while carrying out construction or plastering work of the nature being carried out in the present matter, at least two wooden platforms must be arranged for safety of the workers. In essence, entire prosecution case has been built upon an unsubstantiated hypothesis about incident in question having taken place due to lack FIR No.450 /2015 PS Jamia Nagar PAGE 6 OF PAGE 7 of safety measures. However, it has nowhere been mentioned as to what the said safety measures were. There is nothing on record to prove that conduct of the accused was rash or negligent or that it had lead to causation of the incident in question. The incident in question was no doubt an unfortunate one, however, accused cannot be made to bear the brunt of the same without it being proved that the said incident could have been prevented, had it not been for rashness or negligence of the accused. As already discussed above, prosecution has not been able to prove this crucial aspect in the present matter.
8. In view of above discussion, I am of the considered opinion that prosecution has not been able to prove its case beyond reasonable doubt against the accused. Accused Mohd Arzan is, thus, hereby acquitted for the offence punishable under section 338 IPC.
Copy of this judgment be given to both the sides free of cost.
Digitally
signed by
RAJAT RAJAT GOYAL
Date:
GOYAL 2021.09.30
17:30:57
+0530
Announced in the open court (Rajat Goyal)
on 22.09.2021 Metropolitan Magistrate-08,
South East, Saket, New Delhi.
FIR No.450 /2015
PS Jamia Nagar
PAGE 7 OF PAGE 7