Delhi District Court
State vs Sharad Malhotra on 24 November, 2025
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, NEW DELHI, PATIALA
HOUSE COURTS, DELHI
Cr. Cases No. 57771/2016
CNR No. DLND020119212016
STATE Vs. SHARAD MALHOTRA
FIR No. 61/2013
PS. IGI AIRPORT
U/S 288/304A IPC
1) The date of commission : 27.02.2013
of offence
2) The name of the complainant : SI Deepak Malik
3) The name & parentage of accused : Sh. Sharad
Malhotra,
S/o Sh. D.P.
Malhotra,
R/o 118,
Kailash Hills,
New Delhi.
4) Offence complained of : U/s. 288/304A
IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 24.11.2025
Date of Institution : 11.07.2016
Reserved for Judgment : 13.10.2025
Date of Decision : 24.11.2025
Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 1/19
JUDGMENT
1. Briefly stated the case of the prosecution is that on 27.02.2013 information was received at Police Station IGI Airport vide DD No. 19A about MLC of the deceased Harish who was brought to Safdarjung Hospital but was pronounced dead soon after admission. As per the MLC of the deceased, he sustained injuries after having a fall. SI Deepak Malik along-with Ct. Sombir visited the place of incident i.e. Lemon Tree Hotel where at basement-3 smoke duct, the body of the deceased was found. The duct was found to be broken. It was found from inspection of the site that the duct was open to roof and was running from roof to basement-3. It was also found that construction was going on at different places of the hotel. During the course of investigation, it was found that repair work of ACs was given to M/s Sharad Air Conditioning which was stated to be 'responsible for opening and closing the chimney'. After completion of the investigation, the charge-sheet was filed under section 288/304A IPC.
2. Upon filing of the present chargesheet, vide order dated 11.07.2016, cognizance of the offence was taken and accused Sharad Malhotra was summoned. After complying with the provisions of Sec. 207 Cr.P.C, vide order dated 08.05.2017, notice for offences under sections 288/304A IPC was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for recording of the prosecution evidence.
3. The prosecution has examined as many as eleven witnesses. Prosecution examined Sh. Gulshan Kumar as PW1, Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 2/19 who deposed that in the year 2013, he was working in the Lemon Tree Hotel at Aerocity, IGI Airport, Delhi as a Manager Liaison. That in February 2013, the said Hotel was under construction and operations of business were not started at that time. That on 27.02.2013, he was present at hotel and Asstt. Manager Security Mr. Subhash Gupta had informed that one labour namely Harish was found lying underneath the basement exhaust duct in basement 3 of the building. That he along with Mr. Subhash and the driver Prem immediately took the injured labour to Safdarjung Hospital by company vehicle. That after leaving the injured at Safdarjung Hospital with Mr. Subhash, he had left the hospital. That on the next day, he came to know that the injured Harish was dead. That he also came to know from the employees that deceased Harish used to do the work of cleaning and he had fallen in the exhaust duct while cleaning the roof. The witness was cross-examined by Ld. Counsel for the accused.
4. The prosecution examined Sh. Subhash Chand Gupta as PW2, who deposed that in February, 2013 when he was working in Lemon Tree Hotel, Aero City, Delhi. That at that time, hotel was in pre-opening stage and construction work was going on. That he did not remember the exact date but in February, 2013, one day in after lunch hours, he was walking in the hotel and went to Basement III, where he saw that one person was lying on the floor in unconscious state. That he immediately called Mr. Gulshan of their hotel and informed him about the incident. That Mr. Gulshan called the van of the company and he along with Gulshan took that man to the Safdarjung Hospital in emergency. That in the hospital, the injured was admitted and they met one constable. That Mr. Gulshan left the hospital as he Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 3/19 was not feeling well. That later on, he came to know the name of the injured as Harish who was the labourer. That once he was called by police official in the police station and the police official made inquiry from him. The witness was cross-examined by Ld. APP for the State as he was resiling from his earlier statement. The witness was also cross-examined by Ld. Counsel for the accused.
5. The prosecution examined Sh. Prem Kumar as PW3, who deposed that in 2013, he was working in Lemon Tree Hotel, Aero City, Delhi as driver. That he did not remember the exact date but one day, he was called by the security at basement III of Lemon Tree Hotel where he saw one injured man was lying. That thereafter, he along with one Subhash and Mr. Gulshan who was also employee of the hotel took the injured man to Safdarjung hospital. That he had driven the vehicle in which injured was taken Safdarjungd hospital. That he did not know how that man was injured. That the police official had never made inquiry from him. That he did not know why that injured person had come to Lemon Tree hotel and he did not know the name of the injured. The witness was cross-examined by Ld. Counsel for the accused.
6. The prosecution examined ASI Hari Ram as PW4, who deposed that on the intervening night of 27.02.2013- 28.02.2013, he was posted at PS IGI Airport as Head Constable. That on that day, he was working as Duty Officer and his duty hours were from 7.00 pm to 09.00 am. That at about 10.05 pm, he received rukka/tehrir from Constable Sombir which was sent by SI Deepak Malik. That he made endorsement on the rukka Ex. PW4/A. That on the basis of rukka/tehrir, he got registered the present FIR Ex.PW-4/B(OSR). That he also issued certificate Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 4/19 U/s. 65B of Indian Evidence Act Ex.PW4/C. That after registration of FIR, copy of FIR and original rukka was handed over to Constable Sombir for further handing over the same to SI Deepak Malik as the investigation of the case was marked to him. The witness produced original DD register A from 08.02.2013 to 12.03.2013 of PS IGI Airport and the register contained the DD number 19A dated 27.02.2013 Ex. PW4/D (OSR) PS IGI Airport. The witness was cross-examined by Ld. Counsel for the accused.
7. The prosecution examined Sh. Girish as PW5, who deposed that on 01.03.2013, IO had handed over the dead body of his younger brother Harish after his postmortem examination to his elder brother Rang Lal. The witness was not cross- examined by Ld. Counsel for the accused despite opportunity being given.
8. The prosecution examined Inspector Sandeep Malik as PW6, who deposed that on 27.02.2013, he was posted at PS IGI Airport as Sub-Inspector. That on that day, he was on emergency duty and he received a call vide DD No. 19-A Ex. PW-4/D regarding death of a person and his admission in Safdarjung Hospital. That he was declared brought dead as per the information received. That he along with Ct. Somveer reached there and received MLC of the deceased. That as per the MLC, he as had fallen from height. That dead body was sent for postmortem. That on the MLC, it was mentioned that the deceased was brought by Subhash Chand, Assistant Manager of Lemon Tree Hotel. That he along with Ct. Somveer went to Lemon Tree Hotel and met Subhash Gupta, Assistance Manager. That he took them to the place of incident i.e. basement 3 of Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 5/19 Lemon Tree Hotel, Aerocity. That he pointed towards the smoke duct and he told them that right under that smoke duct the deceased person's body was found. That the smoke duct extended towards the roof of the hotel and came down in basement 3 of the Lemon Tree Hotel. That he inspected the roof from where the smoke duct starts down towards the basement 3. That the opening of smoke duct was not closed and it was in open condition. That as per the investigation conducted, he registered the present FIR and prepared the rukka Ex. PW-6/A. That he prepared the site plan Ex. PW6/B at the instance of Subhash Gupta. That he recorded statement of Subhash Gupta, Ct. Somveer, Mr. Gulsan, employee of hotel and driver Prem Kumar. That he got the postmortem conducted through application Ex. PW-6/C. That thereafter, dead body was handed over to the family members vide identification cum handing over memo Ex.PW-6/D. That he served notice u/s 91 Cr.P.C Mark PW6/E upon the General Manage/MD Lemon Tree Hotel. That he received reply from Sh. Rakesh Kumar, General Manager, Lemon Tree Hotel. The witness did not remember if he had received original reply from Mr. Rakesh Kumar, GM, Lemon Tree Hotel. He further deposed that the crime team was called for inspecting the scene of crime. That he had received a report Ex. PW6/E from them. The witness duly identified 32 photographs Ex.PW-6/F (colly.) of the spot taken by crime team. The witness was duly cross-examined by Ld. Counsel for the accused.
9. The prosecution examined SI Arun Kumar as PW7, who deposed that in the year August 2015, he was posted at PS IGI Airport as Sub-Inspector. That on that day the investigation of the present case was marked to him. That he served notice u/s Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 6/19 91 Cr.P.C. Ex. PW7/A upon the Manager, Lemon Tree Hotel asking the person/firm to whom the installation and service AC was given in the Hotel. That he received reply Mark P1 to P11 (colly.) from the hotel where they stated that the whole installation and service of AC work was given to Sharad Air Conditioners. That they had given the address, phone numbers and all the details. That he sent notice under Section 160 Cr.P.C to owner Ms. Sharad to join the investigation. He further deposed that on the basis of the above said reply and the reply which was already collected by previous IO from the Lemon Tree Premier Hotel, he prepared the charge-sheet and filed the same before the Court. The witness was duly cross-examined by Ld. Counsel for the accused.
10. The prosecution examined Sh. Shashank Prabhakar as PW8, who has appeared to depose on behalf of Sh. Rakesh Kumar, GM as he had already left the services of Lemon Tree Hotel. The witness produced documents i.e. copy of purchase order dated 07.07.2011 given to the accused, copy of retainership contract with Mr. Gulshan Kumar dated 01.11.2019, copy of retainership contract with Mr. Mithilesh Kumar Jha dated 01.04.2019, duties of Mr. Gulshan Kumar and Mr. Mithilesh Kumar Jha, reply dated 12.03.2013 and copy of board resolution Mark A (Colly.). The witness deposed that he did not have any personal knowledge about the present case. The witness was duly cross-examined by Ld. Counsel for the accused.
11. The prosecution examined Sh. Rang Lal as PW9 who deposed that on 28.02.2013, he identified the dead body of his brother namely Harish at the mortuary of Safdarjung Hospital and the IO prepared identification memo Ex.PW6/D. That on that Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 7/19 day, IO also recorded his statement Ex.PW9/A. The witness was duly cross-examined by Ld. Counsel for the accused.
12. The prosecution examined ASI Banwari Lal as PW10 who deposed that on 27.02.2013, he was posted as Head Constable and was working as photographer at South-West District, MCT. That on that day, he along with ASI Pradeep Kumar, IC, Crime Team, went to Lemon Tree Hotel, IGI Airport, where they met with IO of the case. Thereafter, on the direction of IO, he clicked 18 photographs of the spot with different angles. The witness produced the original negatives Ex.PW10/A (Colly). The witness was duly cross-examined by Ld. Counsel for the accused.
13. The prosecution examined HC Somveer as PW11 who deposed that on 27.02.2013, he was posted at IGI Airport as Constable. That on that day, he joined investigation of the present case with IO/SI Deepak Malik and he went to Safdarjung Hospital where IO got preserve dead body of deceased Harish in the mourtuary of the Safdarjung. That thereafter, they both police officials came to the spot, where they met with Assistant Manager Subhash Chand. That in his presence, IO interrogated Subhash Chand and prepared Tehrrir and handed over to him for registration of the case. That thereafter, he went to PS IGI Airport and handed over tehrir to Duty officer, who after registration of the case, handed over him copy of FIR and original tehrir for further handing over to IO. That thereafter, he came to the spot and handed over both the documents to IO. That on 18.02.2013, IO handed over dead body of deceased to his brothers Rang Lal and Manish after identification. That IO had also prepared identification memo Ex. PW6/D of the dead body of the deceased Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 8/19 by their brother namely Rang Lal. That IO had also prepared identification memo Ex. PW11/A of dead body of deceased by his brother Manish. The witness was duly cross-examined by Ld. Counsel for the accused.
14. During the course of trial, admission denial under section 294 Cr.P.C. was also conducted, where the accused admitted the postmortem report of the deceased dated 27.02.2013 AD-1.
15. After examination of all the prosecution witness, the prosecution evidence was closed on 18.12.2023 and the case was listed for statement of the accused under section 313 Cr.P.C. The accused stated that his company was given contract for installation of central air conditioning at Lemon Tree Hotel on 07.07.2011 and the same was completed on 09.01.2013 even before the accident. He further stated that hotel had issued completion certificate after completion of the work. He further stated that his company has not hired the deceased in any capacity and that the deceased was a casual labourer employed by Lemon Tree Hotel. He further stated that the duct are created at a height of 4 feet from the floor of the terrace and it was not possible for anybody to sustain injuries in the normal course. The accused opted to lead defence evidence and thereafter, the case was fixed for defence evidence.
16. The accused examined Sh. Gulshan Kumar as DW1 who deposed that he was employed with Hyacinth Hotels Pvt. Ltd (Lemon Tree Hotel a unit of Hyacinth Hotels P. Ltd.) from 2007 onwards till the onset of Corona pandemic. That he was working as a liasoning manager. He deposed that he knew Sh. N. Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 9/19 C. Malhotra, who was AVP of the company during the relevant time. He further deposed that he had seen him signing and writing during the course of his employment. He identified the signatures of Sh. N. C. Malhotra on Ex. DW-1/1. He also identified the letter head of the company. The witness was cross- examined by Ld. APP for the State.
17. The accused examined Sh. N. C. Malhotra as DW2 who deposed that he was still working as consultant at Lemon Tree Hotels Ltd. The witness was shown a letter dated 09.01.2013 Ex. DW1/1 and upon perusing the same, the witness deposed that the said letter was issued by him on behalf of Hyacinth Hotels Pvt. Ltd. to Sharad Air conditioning Company (A division of Sharad Insulation and Interiors Pvt. Ltd.). He further deposed that as per certificate Ex.DW1/1, M/s. Sharad Air Conditioning company had completed the work on 09.01.2013. The witness was cross-examined by Ld. APP for the State.
18. Thereafter, defence evidence was closed and case was listed for final arguments.
19. I have heard the arguments from Ld. APP for the State and Ld. Counsel for the accused.
20. 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. In this regard, it is relevant to reproduce the observations made by Hon'ble Supreme Court in Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 10/19 Kali Ram Vs. Himanchal Pradesh (1973 2 SCC 808) in para 23 and 25 which are reproduced as under:
" 23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973 2 SCC 793) to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed...
xxxxxx
25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 11/19 finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh,(1974 2 SCC 227) a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."
21. In the present case, the accused was charged with the offences under section 288 and 304A IPC. Section 288 and 304A IPC read as under:
288. 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 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.
304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not 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.
Thus, in order to secure conviction of the accused for the charges under section 288/304A IPC, the following is to Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 12/19 be proved:
(i) That the accused while pulling down or repairing a building, knowingly or negligently, omitted to take such order as is sufficient to guard against probable dangers to human life from fall of the building or any part thereof,
(ii) That by doing a rash or negligent act, the accused caused death of the deceased.
22. The accused Sharad Malhotra has been alleged to have omitted to take appropriate measures in regard to the smoke duct from where the deceased has fallen to his death. It is pertinent to mention that there is no specific allegation made in the charge-sheet against the accused. The allegation stems against the accused stems from the reply of Hyacinth Hotels Pvt. Ltd (entity running Lemon Tree Hotel) dated 12.03.2013 in response to the notice issued by IO Insp. Sandeep Malik under section 91 Cr.P.C. As per the said reply, the duct was allegedly left open by the firm of the accused by mistake. The relevant question asked by the IO and reply given thereupon are reproduced hereunder :
"1. Whether your Hotel is in running condition or not? Ans- The hotel is not in running condition.
2. If not in working condition, what kind of work is being done in Hotel?
Ans- Final touch ups, painting, cleaning, testing and commissioning of Equipments/services are in progress.
3. Is the Hotel site under construction or renovation?
Ans- Construction work is complete. Final painting/polishing/testing/cleaning in progress.
xxxx
6. In what capacity the deceased namely Harish was working in Hotel?
Ans- Laborer/helper (supplied by M/s VS Constructions) used to do cleaning works in various areas.
xxxx Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 13/19
8. Which department looks after the renovation work being done in the Hotel? Name the head and supervisor? Ans- Project Manager, Mr. M. K. Jha / Deputy Project Manager, Mr. Gulshan Kumar.
9. The smoke duct from which the deceased is to be suspected fallen was found open from the roof top. Explain why the duct was open from roof top side?
Ans- It was left open by mistake by M/s Sharad Air Conditioning Co.
10. Which department of your Hotel was looking after duct project?
Ans- Services Wing of the Project Department.
11. Was it not the duty of that concerned department to cover the duct from roof top side to avoid any kind of mishappening? Ans- Yes it was the duty of the contractor M/s Sharad Air- conditioning company to cover it for avoiding accidents.
12. Was it not the duty of your Hotel staff to take necessary precaution while some labour was working on rool top? Ans- It was our duty and concern Lation was briefed boot salety/security procedure prior to assigning the area of work."
23. Apart from the above reply, there is no independent investigation conducted by the police in regard to the accident. The police seems to have acted only on a part of the information given by the hotel that the duct was left open by the firm of the accused and concluded on this basis that it was the accused who should be tried for causing death of the deceased by negligent act, whereas the said information also disclosed that the deceased was employee of V.S Constructions and was employed for cleaning work at the roof. The cleaning work at the roof was further supervised by Sh. Gulshan Kumar and Sh. M.K. Jha. The investigating officers have not investigated independently the roles of the supervising officers and V.S Constructions. Further, the investigating officers have not sought further clarifications as to how the Hotel was aware that the duct was mistakenly left open by the firm of the accused and not by any other person.
Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 14/19What measures were taken by the supervising officers and V.S. Constructions to ensure safety of the cleaning workers. The investigating officer Insp. Sandeep Malik failed to examine co- workers of the deceased or those doing similar work on the roof at the spot. The investigating officer SI Arun Kumar did sent a notice to know the details of co-workers of deceased but the Hotel replied that it did not have any. The investigating officers, however, did not send a single notice to V.S. Constructions under whose payroll, the deceased was working. Despite the Hotel stating that the attendance register was kept by the contractors at site, no efforts were made to obtain it. From the selective information shared by the Hotel, it is quite apparent that the Hotel was not making true disclosure of the facts. This is fortified by the document Ex. DW1/1. Ex. DW1/1 is completion certificate issued by Hyacinth Hotels Pvt. Ltd. to the accused in respect of the completion of installation of air-conditioning work at the Hotel. The certificate has been duly proved by DW1 Sh. Gulshan Kumar and DW2 Sh. N.C Malhotra. It is quite reasonable to presume that the Hotel must have issued this certificate after due inspection and hence, a reasonable inference is liable to drawn that no deficiencies were left by the accused in doing the work given. It is interesting to note that neither the Hotel mentioned about this fact in its replies dated 12.03.2013 and 18.02.2016 that the installation work given to the firm of the accused was over about one month ago form the date of accident, nor the investigating officers could ascertain this fact that the air- conditioning installation work was already completed by the accused in respect of which even completion certificate was issued by the Hotel. As per the certificate, the work done by the Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 15/19 accused firm was very good. It is pertinent to mention that both the investigating officers have failed to apply their mind to information given as per the reply dated 12.03.2013. As per the information given by the Hotel, the construction work of the Hotel was over and only 'Final touch ups, painting, cleaning, testing and commissioning of equipment/services were in progress.' None of the investigating officers had bothered to seek further information from the Hotel whether the work of installation of air-conditioning by the firm of the accused was still in progress and whether the same was already completed. The investigating officer SI Arun Kumar did seek purchase order by which the work was awarded to the accused in his notice dated 13.10.2022 and when the Hotel provided the said information vide Mark P1 to P11, SI Arun Kumar ought to have sought further information as when the work commenced and what was the agreed time for completion and if already completed, when and in what condition, it was done so or whether any complaints were made in regard to the work done or whether the same was satisfactory. Had this information been taken by the investigating officers, they would have got to know that the accused herein had nothing to do the accident.
24. It is also pertinent to mention that allegation of section 288 requires omission of care in respect of repair or pulling down a building to guard against falling of the structure or any of its part. The accused no where fall in the scope of this section. The accused was neither repairing or pulling down the building. Rather it was the Hotel which was raising construction. Even if FIR was registered under section 288 or 304A IPC, the prosecuting agency has not taken care to even satisfy the Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 16/19 requirements of the provisions invoked qua the accused.
25. Further, no evidence, either documentary or oral, has been produced against the accused which show that due to negligence of the accused, deceased had died. There is one more aspect which skipped the attention of the investigating officers. The duct is about 4 feet from the height of the floor of the roof and the deceased was about 5 feet 3 inches tall. The investigating officers have restricted their scope of investigation that the same was left open but they do not inquire as to how a person of about 5 feet could fall into narrow duct even if the same was left open. Despite the fact that an innocent human soul was lost, no serious efforts were made to discover the truth of facts leading to the death of the deceased. The accused who had nothing to do with the death of the deceased was roped in simply on the basis of assertion of the entity in whose premises the death occurred who may be reasonably be suspected to cover up the death, which was in stark contrast of the evidence (Ex. DW1/1) which was available but deliberately burried or negligently not obtained. No inquiries were made from the co-workers, officials in charge of the project, the contractor who employed the deceased. There are no independent findings of the investigating officers as to what were the safety measures undertaken from the Hotel side and from the contractor i.e. V.S. Constructions and whether facts exists which rule out their negligence. A thorough investigation should have been conducted as how the deceased could fall in a narrow opening which was only meant for ventilation. All these aspects have been ignored during the investigation. A reasonable suspicion arises whether the Hotel and its officers were exonerated deliberately due to the fact that the Hotel was Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 17/19 expected to open soon and its involvement in death of a worker could have led to undesirable results and this could be the reason that the Hotel carefully suppressed the fact that air-conditioning installation work was already complete and pointed the accident to third agency who had no connection with the Hotel.
26. There is one more legal issue which goes in favour of the accused. The alleged accident had occurred on 27.02.2013 and the offence which were invoked are section 288 and 304A IPC. As per section 468 (1)(c) Cr.P.C, the Court could not have taken cognizance of the offence after expiry of three years as the maximum punishment prescribed for these offences was only two years (as section 288 prescribes maximum punishment of six months and section 304A prescribes maximum punishment of two years). As per section 468(1)(c) of Cr.P.C, cognizance of the offence is barred after expiry of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. As per explanation to section 468 Cr.P.C, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment. In the present case, the period of limitation has to be determined with reference to the punishment prescribed for the offence 304A IPC as the same is more severe of the two offences. However, charge-sheet in the present case was filed on 11.07.2016, i.e. after expiry of three years from the date of offence i.e. 27.02.2013. No explanation whatsoever was furnished for delay in filing charge- sheet. In Arun Vyas & Anr. Vs. Anita Vyas, 1993 3 SCR 719, it was held by Hon'ble Supreme Court that Magistrate can discharge the accused when the cognizance itself was bad. In the Cr. Cases No. 57771/2016 State Vs. Sharad Malhotra Page No. 18/19 said case also, the charge-sheet was filed after delay and after filing of charge-sheet, Ld. Magistrate took cognizance but later discharge the accused therein on the ground that complaint was barred by limitation. This order of discharge was upheld by Hon'ble Supreme Court. Similarly, in the present case also, the case of the prosecution against the accused can be rejected on the ground of time barred charge-sheet upon which cognizance was taken in ignorance of section 468 Cr.P.C.
27. In view of the above discussion, the prosecution has failed to prove its case against the accused Sharad Malhotra for the offences under section 288/304A IPC beyond reasonable doubt. Accordingly, the accused Sharad Malhotra is acquitted of charges under section 288/304A IPC.
Digitally
signed by
PRANAV
Announced in open Court PRANAV JOSHI
JOSHI Date:
On this 24th Day of November, 2025 2025.11.24
17:54:41
+0530
(PRANAV JOSHI)
ACJM-01/NEW DELHI
PHC/DELHI
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