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Other accused persons opted not to cross examine the witness.
10. PW­6 Sanjeev Kumar deposed that on 15.09.2016, he was posted as Junior Engineer at Sub Division­1 South Road­II Andrews Ganj, Sri Fort Road, New Delhi. He deposed that on that day he was called by IO in the PS Hauz Khas and he enquired about the matter from the witness and asked him as to whether he was present at the spot at the time of incident. Witness stated that he was not present at the place of incident at the time of incident and he accordingly, replied the same to the IO. Witness stated that IO enquired about the presence of JCB machine at the spot to which he replied to the IO that JCB machine was called to break the speed breaker in pursuance of order of Hon'ble Supreme Court of India at Mahinder Kumar Lane Marg, P.R Block Road. Witness stated that order for breaking the speed breaker was issued by Executive Engineer, South PWD and copy of the order is mark 6­A. Witness stated that on 15.09.2016, he had submitted the written reply to SHO PS Hauz Khas which is Ex. PW6/B. During cross examination by accused Som Nath Bharti, witness replied that he does not know whether any meeting took place in respect of nallah (drain) in PWD as he did not attend any such meeting. Witness replied that he had attended the meeting of area MLA to discuss the issues of Constituency concerning PWD. Witness stated that there was no discussion regarding accessibility to AIIMS in any those meetings. Witness stated that he had seen the nallah/drain and road adjacent to the nallah/drain was under his supervision. Witness stated that nallah/drain belongs to MCD. Witness stated that the name of the road is Sudhershan Cinema Road and Gautam Nagar road. Witness stated that the proposal to give access to AIIMS was State Vs. Som Nath Bharti & Ors. FIR No. 659/2016, PS Hauz Khas page no. 18 from Sudhershan Cinema Road. Witness stated that he was in the office on 09.09.2016 and he went to Sudhershan Cinema Road in the evening at about 4.00 pm to inspect the road. He stated that he came to know about the incident around 2.00 pm when he enquired from JCB driver about his whereabouts. Witness stated that there was no official meeting between him and accused Som Nath Bharti regarding the nallah/drain neither any discussion took place regarding repair of Sudhershan Cinema Road. Witness stated that he does not know the name of driver of JCB and he had never issued any instruction to bring JCB machine at the spot on the date of incident. Witness stated that he had instructed JCB owner to demolish breakers and fill the earth which was excavated on 07.09.2016. Witness stated that breakers were on the road. Witness stated that the speed breakers were at Mahinder Kumar Jain Road at the distance of 600 meters from the spot and work was to be start at 10.00 am and direction was issued in oral. Witness stated that approval for removal of speed breakers was taken on 06.09.2016 and JCB was standing at Gautam Nagar road and it was standing around 50 meters from the spot of incident. Witness stated that the wall in question belongs to AIIMS but he does not have any document to show to that effect. Witness replied that he wrote a letter Ex. PW6/B to SHO regarding enquiry whether PWD had demolished the wall to which he replied that PWD had not demolished the wall. Witness further replied that nobody asked from PWD to demolish the wall. Witness stated that letter Ex. PW6/B was written by Sh K.P Kaushik, Assistant Engineer and witness signed it as a witness and he signed it after reading the letter. Witness stated that he had not seen the JCB machine being used to demolition/damage to the wall. Witness stated that he is not aware regarding any meeting on 15.09.2016 in the office of Chief Engineer. Witness stated that he is not aware about any meeting between PWD and AIIMS after the incident. Witness replied that except Ex. PW6/B no other statement of the witness was recorded. Witness denied the suggestion that he deposed falsely that JCB machine was not brought by State Vs. Som Nath Bharti & Ors. FIR No. 659/2016, PS Hauz Khas page no. 19 PWD and on direction of PWD. Witness denied the suggestion that PWD was involved in demolition of the wall. Witness denied the suggestion that the damage to the wall was caused by PWD officially after several meetings with the AIIMS. Witness denied the suggestion that he is not aware about those meetings.
During cross examination by accused Som Nath Bharti, witness replied that he has no knowledge about any correspondence between AIIMS and MCD after this letter and stated that there was some correspondence prior to this letter. Witness stated that he has not talked with MCD officials before visiting to the Court for evidence and had no discussion with AIIMS or MCD after his transfer on this issue. Witness stated that he talked to Mr Mittal A.E MCD after receiving summons from the Court and he did not talk with Executive Engineer. Witness stated that he has no knowledge that MCD Commissioner had informed in writing to PWD that PWD can make a slip road to connect to Sudhershan Cinema Road to cover nallah. Witness stated that he has no knowledge whether any lease was executed between MCD and AIIMS with respect to the said nallah. Witness stated that the permission was only to cover the nallah and no habitable structure or anything to do commercial activity was allowed by MCD vide letter Ex. PW1/E11. Witness stated that during his tenure, the State Vs. Som Nath Bharti & Ors. FIR No. 659/2016, PS Hauz Khas page no. 33 annual rent was not finalized. Witness further stated that he cannot say whether permission was granted null and void for want of fulfillment of condition given in the letter about finalization of token annual rent. Witness admitted that there was no restriction for other persons to use the covering done on nallah as per the letter. Witness stated that there was no permission to built any wall on nallah and permission was only to cover the nallah.
25. Accused Som Nath Bharti examined two witnesses in support of his defence.
26. DW­1 Anil Kumar Assistant Engineer Office of EE, M4 SDMC South Zone Pushp Vihar, Sector­6 New Delhi produced the copies of documents i.e. letter dated 15.02.2016 from Chief Engineer South Zone SDMC to the Principal Chief Engineer, PWD, GNCTD, Ex. DW1/A, Minutes of Meeting dated 18.04.2016 Ex. DW1/B, Letter dated 13.04.2016 from Executive Engineer South Road­II PWD to Executive Engineer (M­II) SDMC Ex. DW1/C. Witness stated that he has seen the documents Ex. PW1/E11 and Ex. PW1/D1 placed on judicial record and as per his knowledge the documents and their contents are correct. Witness stated that the permission was given by Commissioner SDMC to Director AIIMS for covering open nallah upto 600 meters from Ring Road towards Gautam Nagar. Witness stated that the 600 meters distance ends upto Street Light Pole No. 29. Witness deposed that AIIMS has covered the nallah beyond the limited area and no permission for area State Vs. Som Nath Bharti & Ors. FIR No. 659/2016, PS Hauz Khas page no. 38 covered beyond permitted limit was granted by SDMC to AIIMS. Witness stated that the place of incident dated 09.09.2016 took place beyond the area that was permitted to be covered. Witness stated that there was no lease deed executed between AIIMS and SDMC in pursuance to the permission vide letter Ex. PW1/E11 nor any token rent was decided during his tenure. Witness stated that the permitted covered area as well as the area covered beyond the permitted limit is being commercially used by AIIMS for parking purposes. The wall towards the Sudhershan Cinema Road which is subject matter of the case is not the part of the nallah and it is constructed on Sudhershan Cinema Road. Witness deposed that it was an MCD road under jurisdiction of SDMC till 2013 and thereafter, it was handed over to PWD. Witness stated that MCD has never received any application to seek permission to construct the wall on Sudhershan Cinema Road. Witness stated that he is aware as to who is the owing authority of the said wall. Witness stated that the terms and condition of permission granted to the AIIMS for covering the nallah was not complied by the AIIMS Authority. Witness deposed that Commissioner SDMC has permitted PWD to connect Sudhershan Cinema Road with covered portion of Gautam Nagar nallah by constructing a slip road vide letter Ex. PW1/A and witness was Member of the meeting held on 12.04.2016 on behalf of SDMC and Minutes of the same is Ex. DW1/B. Witness stated that AIIMS Authorities were aware about the meeting dated 12.04.2016 but none from AIIMS participated in that meeting. Witness stated that he was assigned the duty to ensure removal of toilet block from the point where slip road was to be constructed vide letter dated 13.04.2016 Ex. DW1/C. Witness deposed that he got removed it accordingly. Witness deposed that he attended meeting dated 15.09.2016 held in the Office of Chief Engineer South PWD, minutes of which are Ex. PW1/D1. Witness stated that action dated 09.09.2016 for making slip road connected Sudhershan Cinema Road with covered portion of Gautam Nagar nallah by removing the wall was of PWD. Witness stated that the action was opposed by AIIMS as State Vs. Som Nath Bharti & Ors. FIR No. 659/2016, PS Hauz Khas page no. 39 discussed in the meeting. Witness stated that meeting dated 15.09.2016 was fixed at request of AIIMS and police authority to find amicable solution. Witness stated that nallah is owned by MCD and it is the Competent Authority to deal with the same.
During cross examination on behalf of the State, witness admitted that he had not brought the original documents as produced during his examination in chief. Witness admitted that he was not present at the spot on the date of incident i.e. 09.09.2016. Witness admitted that he cannot produce any document or record to show that AIIMS is making commercial use for parking purposes. Witness stated that he cannot say that AIIMS may have opted permission for constructing wall on Sudhershan Cinema Road after or before his tenure as A.E (Civil) (Maintenance). Witness stated that he has not lodged any complaint for non compliance of terms and conditions of permission granted to AIIMS for covering nallah though he visited the spot. The document Ex. DW1/A was put to the witness and witness was asked that in this document, there is no mention for granting permission for constructing slip road to which witness again stated that permission was granted vide document Ex. PW1/A. Witness denied the suggestion that he gave evasive reply and no permission was granted vide document Ex.DW1/A to PWD for connecting Sudhershan Cinema Road with covered portion of Gautam Nagar nallah. Witness admitted that as per document Ex. DW1/B, no permission was granted as stated above. Witness stated that he is not aware about any document vide which PWD took action on 09.09.2016. Witness denied the suggestion that he deposed falsely.