Delhi District Court
State vs . Surender Kumar & Etc. on 13 November, 2019
IN THE COURT OF SH. CHANDER MOHAN
METROPOLITAN MAGISTRATE04/CENTRAL: DELHI
STATE VS. SURENDER KUMAR & ETC.
FIR No. 109/2011
Case No. 300958/2016
P.S. : Sarai Rohilla
U/S 304A IPC
Date of institution of case : 22.04.2013
Date on which case reserved for judgment : 13.11.2019
Date of judgment : 13.11.2019
JUDGMENT :
a) Date of offence : 04.04.2011
b) Offence complained of : U/s 304A IPC
c) Name of complainant : Ramesh Chand
d) Name of accused persons, : Surender Kumar
their parentage : S/o Sh. Bhim Singh
local & permanent residence J.E, Dayabasti Northern |
Railway, Presently posted
at SSE at Sonepat
Railway Station
Haryana.
Raghubir Prasad
S/o Mahle Ram Singh,
Senior Section Engineer,
Works Office, Punjabi
Bagh, Delhi.
FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.1
e) Plea of accused persons : Pleaded not guilty
f) Final order : Acquitted
BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 04.04.2011 at about 10:30 pm at Daya Basti, RPF Line, Sarai Rohilla within the jurisdiction of PS Sarai Rohilla both accused persons being responsible for the maintenance of the wall of the barrack of RPF had negligently omitted to take precautions regarding maintenance of the aforesaid wall due to which the above said wall collapsed and one boy namely Manoj expired thereby both accused persons committed offences punishable U/s 304A IPC.
2. On the basis of material filed along with the chargesheet, notice u/s 304A IPC was framed against both the accused persons to which they both pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined 11 witnesses.
4. PW1 is the uncle of the deceased. As per his testimony on 04.04.2011, his nephew died due to fall of the wall of RPF barrack. He further identified the dead body of his nephew vide identification memo FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.2 Ex.PW1/A. He further alleged in his testimony that the wall collapsed due to nonmaintenance by the officials. He further deposed that he had made an oral complaint before the concerned officials regarding the weak condition of the wall.
5. PW2 Sh. Ramesh Chand is the father of the deceased. As per his testimony on 04.04.2011, his son Manoj went for a walk after the food near the wall of RPF barrack and while walking he attended a nature call, suddenly the boundary wall of RPF barrack collapsed and fell on Manoj due to which he received injuries. Some persons took him out of the debris. Some one called 100 number and PCR van came and took his son to HRH for medical treatment. He further deposed that the wall was old one and having cracks. He also deposed that complaints were made to IOW verbally regarding the said wall. He further stated that the wall collapsed because it was not repaired for a long time. He further identified his statement recorded by the police Ex.PW2/A. He further received the dead body of Manoj vide memo Ex.PW2/B.
6. PW3 Sh. Ram Asrai (a person from locality of deceased) deposed that on 04.04.2011 he was present outside his house. At about 10:30 pm, he heard a noise and came to know that the boundary wall of RPF barrack, Daya basti Jhuggi had collapsed and one boy namely Manoj was struck beneath. As per his testimony, he reached the spot and started removing bricks of the collapsed wall and in the meanwhile PCR van came and took the injured Manoj to HRH. He also deposed that the wall was very weak which resulted in its collapse.
FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.3
7. PW4 Shiv Preet and PW5 Raja are also residents of Daya Basti Jhuggi. Their testimony is also similar to that of PW3.
8. PW6 Hariom Mandal deposed that in the year 2011, he was working as a photographer and on the directions of IO, he took photographs of the spot which are Ex.PW6/A (Collectively).
9. PW7 HC Govind was posted as constable in PS Sarai Rohilla on 04.04.2011. On that day, on receiving DD no. 91B, he alongwith IO reached the spot and came to know that PCR Van had taken the injured to HRH. IO left him at the spot for the preservation. After some time, IO returned and handed over to him the rukka upon the basis of which, he got registered the FIR and returned back with the copy of the FIR and original rukka.
10. PW8 Dr. B.K. Sharma CMO Jug Pravesh Chand hospital conducted the postmortem of deceased Manoj. His detailed report is Ex.PW8/A. PW9 Sh. K.V. Singh medical record clerk of HRH proved the MLC of deceased Manoj in the absence of Dr. Anushka Madan (as per his testimony she has left the hospital and whereabouts are not known). The copy of MLC bearing no. 2183/11 dt.04.04.2011 is Ex.PW9/A.
11. PW10 ASI Balbir Singh was posted as PCR Van incharge FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.4 Sugar33 on 04.04.2011. He received the PCR call from the control room and alongwith his staff went to the spot and found one boy in an injured condition. He took the boy to Hindu Rao Hospital and got him admitted.
12. PW11 SI Sunil Kumar is the IO in the present case. After receiving the DD no. 91B regarding the fall of the RPF wall, he alongwith constable Govind reached the spot where he came to know that PCR Van had taken the injured to Hindu Rao Hospital. He left Ct. Govind at the spot and went to Hindu Rao Hospital. At hospital, he collected the MLC of injured Manoj, went to Trauma center where he met father of the injured Ramesh Chand (PW2). He recorded the statement of Ramesh Chand and prepared rukka and went back to the spot and handed over the tehrir to Ct. Govind. Thereafter, he made local enquiry and meet three eye witnesses regarding the incident. Ct. Govind came back to the spot and handed over to him the copy of the FIR alongwith original rukka. On further investigation, he came to know that oral complaints had already been made to IOW/J.E of RPF Northern Railway due to negligence on the part of the officials of the RPF the said wall had fallen.
On 05.04.2011, he received information regarding death of Manoj Kumar. He prepared site plan Ex.PW11/A3 and got the postmortem conducted and thereafter handed the dead body to the relatives of the deceased.
Thereafter, he sent notice to DRM office regarding the person who was responsible for the maintenance of fallen wall, upon reply he came to know that maintenance of the said wall was assigned to JE under FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.5 the control and supervision of SSE. A notice was given to DRM (Ex.PW11/A) and reply of the same is Ex.PW11/X1. IO also sought information regarding the duty incharge on the date of incident I.e 04.04.2011. He further received attendance register from DRM office and after perusal he found that J.E Surender (accused no.1) had already been relieved to Panipat on 29.03.2011 but as per statement of complainant and eyewitness they had informed J.E Surender regarding the cracks present in the RPF wall before the incident. He further deposed that during the investigation, it was also found that in the absence of J.E, the maintenance of the wall is under the control of SSE, Punjabi Bagh (accused no.2 Raghubir Prasad) and he did not pay any attention to the cracks in the wall. Thereafter, he prepared a challan against J.E Surender and SSE Raghubir Prasad. He further correctly identified the accused.
13. After conclusion of prosecution evidence, the statement of the accused persons recorded u/s 313 Cr.P.C r/w 281 Cr.P.C was recorded by this court on 25.10.2019. In the statement accused Surender Kumar admitted that he was entrusted with maintenance of the wall but denied wall having fallen due to want of any care or repair. He took the plea that the wall had fallen due to impact of earthquake. He further stated that it is also possible that someone might have tried to demolish the wall to steal iron rods which used to remain inside. He also stated that wall was inspected yearly by accused Raghubir Singh who found no fault in the yearly inspection. He further denied receiving any complaint or request to FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.6 repair the above wall or that it was in a dilapidated condition. Similarly accused Raghubir Prasad also admitted that he was entrusted with maintenance of the above wall. He stated that wall in question is about 200250 meter in length and remaining portion of the wall is still intact. He further stated that it was never brought to his notice or notice of his office that the fallen portion of the wall was weak or required any repair. He also stated that their office never received any complaint from the user of the wall i.e RPF regarding requirements of any maintenance or repair.
14. I have heard ld. APP for the State and perused the record.
15. The testimony of the residents of the locality who rushed to the spot after hearing the noise of the fall of the portion of the wall (PW2, PW3, PW4 and PW5) and also testimony of PCR Van Incharge Balbir (PW10) clearly establish that deceased Manoj died due to coming under the debris of the wall that had fallen. Infact, accused have also not disputed this fact. The question that remains is that whether accused persons were entrusted with the duty of maintenance of the wall and despite knowledge or having reason to believe that portion of the wall may fall they took no steps to repair it or other measures to prevent it from collapsing. As per the prosecution, accused no.1 Surender is the J.E responsible for maintenance of the wall. During his statement u/s 313 Cr.P.C, he has clearly admitted this responsibility but his plea is that he was relieved few days before the incident and therefore, he can no longer the held liable. He has also taken the plea that no complaint etc was ever made regarding any repair of the portion of the wall during his tenure. On FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.7 the other hand, as per the IO despite his transfer before the incident, he has been made the accused because some of the witnesses had stated that they had made the complaint to him (accused no.1) regarding the condition of the wall. I have gone through the testimonies of these witnesses. PW1 Dina Nath has claimed himself to be a shopkeeper in the vicinity of the wall that fell. He is also the uncle of the deceased. He has stated in his testimony about making a oral complaint to the concerned officials regarding the weak condition of the wall. In his cross examination, he has stated that he had given the oral complaint to a unknown official. This court is of the opinion that merely a bald statement in examination in chief that a complaint was made that to oral one, without any day or date or even month is not sufficient to prove that the weak condition of the wall was brought to the notice of accused no.1. Similar statement has also been made by PW2 but again it remains oral one and suffers from the deficiency noted in the testimony of PW1. Even other wise from the evidence and circumstance it does not appears that the above witnesses coming in contact with accused no.1 or even accused no.2. The boundary wall was of RPF barrack situated near Daya Basti Jhuggi. PW2 had admitted in his cross examination that no outsider are allowed to enter the RPF barrack. It would be pertinent to mention here that the portion of the wall that had fallen was the boundary wall of RPF barrack but the present accused were entrusted with its maintenance and there office is at Punjabi Bagh. There is no evidence that the above PWs have ever visited Punjabi Bagh. Further, it is not the case of the above PWs that they had brought to the notice of RPF regarding the condition of the wall. This court is not oblivious to the fact that it is not duty of the FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.8 outsider to bring it to the notice of the concerned department to perform their duty which in the present case is to periodically check the strength of the wall and take all the measures to prevent them from falling. However, the facts of the present case make this factor significant as accused no.1 already stood transferred when the incident happened. Moving further, the plea of the accused that the wall had fallen due to impact of earthquake is also not without substance. It has come in the evidence of PW2 Ramesh Chand (father of the deceased) that earthquake had come on 04.04.2011 i.e on the date of the incident. Further in his cross examination also IO has admitted that in the reply Ex.PW11/X1, it is mentioned that the wall had fallen due to impact of earthquake. This document is the reply of Northern Railway in which occurrence of earthquake on 04.04.2011 is mentioned. Further, it has come in the evidence of photographer PW6 Hari Om Mandal that it was rainy season and on the road water had gathered. Hence, the possibility of rain water weakening the wall which may have fallen due to the impact of earthquake cannot be ruled out. There is another lacuna in the evidence of the prosecution. IO (PW11) has admitted in his cross examination that he does not possess any technical or engineering qualification. This court is of the opinion that examination of some technical expert by the IO would have helped more in understanding the actual reason why the portion of the wall fell. No such expert was taken by the IO to the spot for examination. Moving further, as per the IO accused no.2 was made accused in the present case because during the investigation, it was found that in the absence of J.E, the maintenance of the wall is under the control of SSE Punjabi Bagh. There is no evidence that when the wall fell or even FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.9 prior to the incident, the JE concerned was absent. Even otherwise no rule, bye law, notification etc has been placed on record by the IO to prove any such shifting of responsibility.
Accordingly, in view of aforesaid observations, the prosecution has failed to prove its case against accused persons. Therefore, accused Surender Kumar and Raghubir Prasad are acquitted for the offences U/s 304A IPC charged against them.
Surety also stands discharged. Let documents of surety if any be released forthwith and also any endorsement on the documents be also cancelled.
Copy of judgment be given free of the cost to accused persons.
File be consigned to record room.
Digitally signed by CHANDER CHANDER MOHAN
MOHAN Date: 2019.11.20
15:52:36 +0530
PRONOUNCED IN THE OPEN COURT (CHANDER MOHAN)
TODAY ON 13th NOVEMBER, 2019 MM04 (CENTRAL),
DELHI
FIR No. 109/2011 State Vs. Surender Kumar & ars. Page no.10