Delhi District Court
State vs . Bhupender Singh @ Bittoo on 10 May, 2019
IN THE COURT OF GOPAL KRISHAN: MM-06(NW) /
ROHINI COURTS: DELHI
State vs. Bhupender Singh @ Bittoo
FIR NO. : 89/12
U/S : 336/337/304A /427 IPC
PS : Vijay Vihar
JUDGMENT
a) Sl. No. of the case : 531733/16
b) Date of institution of the case : 08.03.2013
c) Date of commission of offence : 17.03.2012
d) Name of the complainant : SI-Sanjeev Kumar
e) Name & address of the : Bhupender Singh @ Bittoo
S/O Late Sh. Rameshwar Rana
R/O H. No. 288, Village
Rithala, Delhi.
f) Offence charged with : Section336/337/304A /427 IPC
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 10.05.2019
i) Final order : Acquitted
j) Date of Judgment : 10.05.2019
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Bhupender Singh @ Bittoo has been sent to face trial with the allegations that on 17.03.2012 near Surya Hotel, Rithala, within the area of PS Vijay Vihar he constructed the wall on his plot and he did not take proper care of the wall and due to his rash and negligent act, the wall was broken and fell down on two FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 1 of 11 persons namely Rajesh and Ram Niwas due to which Ram Niwas sustained injuries and Rajesh succumbed to the injuries and died . It is further alleged that due to the collapsing of the said wall, the car bearing no. DL 9CS9048 of one Sh Rajesh Gupta was damaged. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A charge u/s 336/337/304A /427 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined 13 witness. PW-1 Sh. Radhey Shyam & PW-2 Sh. Yogeshwar were the relatives of deceased Rajesh, who allegedly identified the dead body of deceased Rajesh at BSA Hospital mortuary.
PW-3 HC Shailender Kumar was the Duty Officer at the relevant time, who tendered the copy of FIR as Ex. PW 3/A and endorsement on rukka as Ex. PW 3/B in his evidence.
PW-4 Sh. Vijender Kumar was the photographer, who took the photographs of the place of incident at the instance of IO and tedered the said photographs in his evidence as Ex. PW 4/A (colly).
PW-5 Sh. Ram Niwas (injured) was allegedly the eye witnesss to the incident who deposed that on the day of incident when he was going towards Mangolpuri from Rithal, then in the Gali near Surya Hotel, suddenly one wall fell over him and he lost his consciousness and regained his consciousness in the hospital only.
FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 2 of 11 PW-6 ASI Anil Kumar deposed that on 18.03.2012 he joined the investigation of the present case with IO-SI Sanjeev Kumar and went to the spot where IO apprehended as also recorded the disclosure statement of accused.
PW-7 HC Akhilesh also allegedly joined the investigation of the present case along with IO-SI Sanjeev Kumar and he deposed that after reaching the spot the IO prepared the tehrir and on the basis of said tehrir he got the present case FIR registered at PS and thereafter he went to BSA Hospital, where he came to know that the injured had died.
PW-8 Retired ASI Suresh Kumar, who allegedly was working as Duty Head Constable at Dr. BSA Hospital on the day of incident, deposed that on said date two injured persons were brought to the hospital by PCR Van, out of which one person was declared as dead.
PW-9 Dr. Vijay Dhankar from Dr BSA Hospital the postmortem examination report of deceased Rajesh as Ex. PW 9/A in his evidence and deposed that all injuries on the body of deceased were ante-mrtem and fresh in duration and were possible by fall of the wall.
PW-10 Dr. Prashant Saxena tendered the MLC of injured Sh. Ram Niwas as Ex. PW 10/A in his evidence.
PW-11 Dr. Brijesh Goel was the CMO from Dr. BSA Hospital, who allegedly examined both the injured persons on the day of incident, tendered their MLCs in his evidence.
PW-12 SI Sanjeev Kumar was the IO of the case, who FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 3 of 11 deposed that on receipt of DD No.32 A, regarding falling of wall on some persons, he along with Ct. Akhilesh went to the spot as also to BSA Hospital and carried out entire investigation proceedings i.e. obtained the MLCs of injured persons, preparation of tehrir, site plan, identification memo, handing over memo, arrest memo , personal search memo, recording of disclosure statement etc. PW-13 Retired Narender Kumar, who allegedly was the Incharge PCR Van No. Libra 6 on the day of incident, deposed that on receipt of call, he went to the spot and took the injured persons to BSA Hospital.
4. Following documents were tendered during the evidence of these witnesses -
(i) PW-1/A - Dead body identification statement.
(ii) PW-1/B - Handing over memo of dead body of deceased Rajesh.
(iii) PW-3/A - FIR
(iv) PW-3/B- Endorsement on rukka.
(v) PW-4/A (Colly) - Photographs of the place of incident
(vi) PW-6/A - Disclosure statement of accused.
(vii) PW-6/B - Arrest memo.
(viii) PW-6/C - Personal search memo
(ix) PW 9/A- Postmortem report of deceased Rajesh
(x) PW 10/A- MLC of injured Ram Niwas.
(xi) PW 11/A- MLC of deceased Rajesh
FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 4 of 11
(xii) PW 12/A- Rukka
(xiii) PW-12/B - Site Plan
(xiv) Mark Y - Photocopy of Khatauni
(xv) Mark Z - Affidavit of accused
(xvi) Mark Z1 - Photocopy of RC of Car
5. Statement of accused was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case and he is not the owner of the wall and his signatures were obtained on the blank papers. Further, the accused did not wish to lead any defence evidence.
6. Final Arguments heard. Case file perused.
7. From the material on record the following points for determination arise before the court:-
(a) Whether the disputed plot, the wall of which is stated to have collapsed, was under the exclusive control of the accused?
(b) Whether the the accused did not take property care of the said wall and collected huge pile of sand against the wall and by virtue of said rash and negligent act of accused, the said wall collapsed?
(c) Whether due to collapse of said wall two persons namely Rajesh and Ramniwas received injuries and a car bearing No. DL9CS9048 got damaged and out of aforesaid two injured, one person namely Rajesh expired due to the said FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 5 of 11 injuries?
8. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has established its case beyond reasonable doubt and it is prayed that accused be convicted of the offences charged.
9. Per contra, it is argued by the Ld. counsel for the accused that accused is completely innocent and has been falsely implicated in the case. It is further submitted by Ld. Counsel for the accused that PW-5 Ram Niwas, the only eye witness to the incident examined by prosecution, has not supported the case of prosecution and the prosecution has miserably failed to prove that accused was owner or in possession of the disputed plot or that due to any rashness or negligence on the part of the accused, the disputed wall collapsed. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offences.
10. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My finding on the aforesaid points for determination and brief reasons for the same are now being discussed in following paragraphs.
11. Prosecution has examined total 13 witnesses in support of its case. However, the only eye witness examined on behalf of prosecution is PW-5, Sh. Ram Niwas, who deposed in his examination-in-chief that in the year, 2012 while he was going FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 6 of 11 towards Mangolpuri from Rithala Villege in his rickshaw, then near Surya Hotel, a wall fell down over him, due to which he became unconscious and regained his consciousness in Hospital only. But the said witness has not deposed anything as to how the said wall collapsed or what was the reason for its collapse and as to whether any other person except himself received any injury or any other property got damaged in the said incident. The said witness was asked leading question by Ld. APP and thereafter, even cross-examined by Ld. APP as the witness turned hostile. The relevant extracts of deposition of PW-5 (when the said witness was asked leading question and cross- examined by Ld. APP) are as under:-
"It is incorrect that one car was standing and one person was going from near the wall which fell upon me. It is wrong to suggest that I along with IO went to the spot or that I had shown him the 4 inch thick wall which had fallen upon me and my rickshaw and one pedestrian and one car or that IO prepared site plan at my instance or that the owner of the wall had placed excessive sand near the wall due to which the said wall had fallen or that IO recorded my statement. ( confronted with statement Mark X-1 from portion B to B- 1 where it is so recorded and which is read over and shown to the witness who denied giving such statement to the police)."
Further, during cross-examination conducted by Ld. Defence counsel, this witness deposed as under -
"I do not know the plot number or the khasra number and I had not told the same to the IO. I do not know the width of the road or the gali."
12. From the aforesaid statement of the only eye witness examined on behalf of prosecution, it is clear that the said witness PW-5 has not supported the case of prosecution at all. The witness FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 7 of 11 clearly stated that he does not know the plot or khasra number of the disputed piece of land and further that he did not tell the same to IO. This witness further denied the suggestion of Ld. APP that he (PW-5) had shown the disputed wall (which had fallen on the witness) to the IO or that IO had prepared the site plan at his instance.
It is also pertinent to mention here that though Ld. APP has given the suggestion to PW-5 Ram Niwas that IO had prepared the site plan at his instance, but in the entire testimony of PW-12 IO SI Sanjeev, IO himself has not stated that he had prepared site plan at the instance of complainant. Further, in the site plan Ex. PW-12/A, neither the khasra/plot number of the place of incident is indicated nor the distance of place of incident from the nearby landmark is anywhere indicated. In view of the aforesaid facts, prosecution has even failed to prove with certainty the place where the alleged incident took place.
13. As far as the ownership or exclusive control of accused over the disputed plot is concerned, then the prosecution has failed to examine any witness who could have deposed about this fact on the basis of his personal knowledge and in this regard prosecution has not examined even any of the neighbours residing near the disputed plot. Prosecution has merely relied upon two documents i.e. Mark Y and Mark Z (which are photocopy of khatoni of disputed plot and affidavit of accused, allegedly given by the accused to the IO during investigation) tendered during the evidence of PW-12 IO Sanjeev, so as to establish the ownership of accused over the said plot. However, FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 8 of 11 admittedly, the aforesaid document Mark Y is only a photocopy and was only marked during the evidence of PW-12 and hence, the said photocopied document, being inadmissible, cannot be read in evidence. Moreover, admittedly, in the document Mark Y, the names of several persons are mentioned as co-owner of the property as reflected in the khatoni and accused remains only one of the co-owners. Therefore, from the aforesaid document Mark Y, it cannot be said that accused was in exclusive possession/control of the plot at the time of incident. Even otherwise, in the document Mark Y, the property is identified by khasra numbers but in the present case, neither any of the prosectuion witnesses has deposed anything about the khasra/other number of the disputed plot nor the IO has mentioned any khasra/other number of the disputed plot in the site plan prepared by him and therefore it can not be said that the disputed plot and the property reflected in khatoni Mark Y are one and same property.
14. As far as other document Affidavit Mark Z, as relied upon by prosecution to establish exclusive control of accused over the plot at the time of incident, is concerned, then a bare perusal of said affidavit reveals that the same was prepared on 23.08.2012 i.e. after the date of incident and same was submitted during the investigation allegedly by the accused to IO, therefore, this document cannot be read in evidence against the accused, in view of the bar contained under section 162 CrPC. Even otherwise the contents of said affidavit does not establish the factum of exclusive possession of accused over the disputed plot at the time of alleged incident. Therefore, the prosecution has failed to FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 9 of 11 prove beyond reasonable doubt that the disputed wall was in exclusive possession of the accused at the time of incident.
15. But if it is assumed for the sake of arguments that the said plot was in exclusive possession of the accused at the time of incident, even then the prosecution has failed to bring any fact on record which could have established that the wall of said plot collapsed due to rash and negligent act of the accused. As stated above, the case of prosecution is that since the accused has collected excessive sand against the wall in his aforesaid plot, therefore, due to excessive pressure of the sand upon the wall, the said wall collapsed and caused injury to human as well as damage to the property. However, as stated above, the only eye witness PW-5 Sh. Ram Niwas has turned hostile and has not supported the case of prosecution in this regard and except the aforesaid witness, no other witness was examined by prosecution, to establish that the accused has collected excessive sand against the wall and the wall collapsed only due to the excessive pressure of sand. Even the factum of presence of huge pile of sand at the place of incident could not be established, as the IO has failed to seize the sand during investigation, which could have established that the sand was excessive in terms of quantity and the said sand was sufficient enough to exert excessive pressure on the wall. There is nothing on record to suggest that during investigation, the IO had taken any steps even to get the place of incident examined by any expert, who could have tested the material used in construction of said wall or could have examined the condition of the wall including its thickness etc. and FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 10 of 11 could have opined, whether the pile of sand collected against the wall was sufficient enough leading to collapse of wall.
16. In view of the aforesaid analysis it is quite apparent that the prosecution has miserably failed to establish the factum of exclusive possession of the accused on the disputed plot at the time of incident and also the fact that the aforesaid wall collapsed due to the rash and negligent act of the accused. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
17. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Bhupender Singh @ Bittoo stands acquitted of the offences u/s 336/337/304A/427 of IPC, he has been charged with. Ordered accordingly.
Announced in the open court (Gopal Krishan) on 10.05.2019 MM-06/NW/Rohini/10.05.2019
It is certified that the present judgment runs into eleven pages and each page bears my signature.
Gopal Krishan) MM-06/NW/Rohini/10.05.2019 FIR No. 89/12 PS Vijay Vihar State vs. Bhupender singh @ Bittoo page 11 of 11