Delhi District Court
State vs Vinay Gupta on 19 July, 2025
IN THE COURT OF RISHABH KAPOOR, JUDICIAL
MAGISTRATE FIRST CLASS -05 SOUTH WEST DISTRICT,
DWARKA COURTS: DELHI
Digitally
signed by
State Vs. : Vinay Gupta
RISHABH
RISHABH KAPOOR
KAPOOR Date:
2025.07.19
13:21:09
FIR No : 33/2011
+0530
U/s : 288/338 IPC
P.S. : Vikas Puri
JUDGMENT:
1. Criminal Case No. : 426633/16 2. Date of commission of offence : 26.01.2011 3. Date of institution of the case : 01.03.2012 4. Name of the complainant : State
5. Name and parentage of accused : Vinay Gupta s/o Sh.
Bhagwan Dass
6. Offences complained or proved : 288 and 338 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved: 05.06.2025
9. Final order : Convicted
10. Date of final order : 19.07.2025
1. The accused Vinay Gupta is facing trial for offences u/s 288 and 338 IPC. The genesis of prosecution story is that on 26.01.2011 at around 5:30 PM when the son of complainant State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 1 namely, Atul was playing in the street, the ball went to the vacant plot adjacent to House no. J-54 Gali no. 38, Madhu Vihar, Delhi and when he went to pick the ball, the accused Vinay Gupta who was carrying out the construction work in his building i.e House no. J-54 Gali no. 38, Madhu Vihar had thrown a bag full of debris from the roof of the said house and said bag fell upon the son of complainant Atul due to which he sustained the injuries. The victim Atul was taken to hospital and matter was informed to the police. On the basis of statement given by complainant Ganesh Kumar Dixit, the criminal law was set into motion vide registration of FIR and investigation into the case began. During the course of investi- gation, the accused was arrested and was admitted to police bail. The final opinion qua the injuries suffered by victim Atul was ob- tained, as per which the injuries were found to be grievous in na- ture and Section 338 IPC was accordingly added in the case FIR. After completion of investigation, the present charge sheet for con- ducting trial of accused for offences u/s 288 and 338 IPC was sub- mitted in the Court.
2. As per mandate of Section 207 Cr.P.C., the copy of charge sheet and documents was supplied to the accused. The notice was framed against the accused for offences under Section 288 and 338 IPC vide order dated 05.07.2017 to which he pleaded not guilty and claimed trial.
3. After the framing of notice of accusation, the matter pro- ceeded for prosecution evidence and in order to prove its case, prosecution has examined six witnesses in all. The accused has also admitted the documents i.e. MLC no. 10914/11 dated 26.06.2011 and X-ray report no. 109/14/11 dated 26.11.2011 per- taining to patient Atul Dixit which are Ex. P1 and Ex. P2 respec-
State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 2 tively, vide his statement u/s 294 Cr. PC and pursuant thereto, ex- amination of the witnesses (i.e at serial no. 5, 6 and 7 of the list ) qua said documents was dispensed with. The testimonies of the material prosecution witnesses are discussed in brief hereinafter.
PW-1 Ganesh Kumar Dixit is the complainant in the present case. He deposed that on 26.01.2011 at about 5-5:30 PM while he was present at his shop at Uttam Nagar, Delhi one Yashwant Rana came to his shop and informed that his son got injured due to the debris (construction malba) thrown by accused Vinay Gupta, to which he rushed to the spot and saw that the leg of his son was in injured condition and he was lying the lap of one of his friend. He further deposed that the leg of his son was found broken and he came to know that his son was playing in the gali where the con- struction work of house of accused was taken place and when he went to take the ball from the vacant plot adjacent to the house of accused, one sack of debris of construction was thrown upon him due to which his leg got broken. He further deposed that he re- ported the matter to police by calling at 100 number and admitted his son in RML Hospital, where police recorded his statement Ex. PW1/A. He also correctly identified accused Vinay Gupta in the Court. During his cross-examination, he stated that the incident did not take place in his presence and he had only heard about the same. He deposed that his son had not informed him regarding the incident at the spot. He further stated of having told to police that the bag of debris was thrown upon his son by accused Vinay Gupta. He deposed of having told name of Yashwant Rana to the police when his statement was recorded. He deposed of having signed statement Ex. PW 1/A after reading it. He further stated that he was hopeless after the incident and had talked to his son be-
State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 3 tween 12:00 PM to 1:00 AM. He further stated that his son was in the lap of his friend Subhash when he reached at the spot. He de- nied that the name of Subhash was not told by him to the police. He denied that no construction work was being done by accused at his house. He could not state whether his son had ever com- plained that accused was not permitting him to play in the gali. He admitted that there was no labor at the place of incident when he reached there and also that it was a holiday on account of Repub- lic Day. He further stated that the accused never restrained his son from playing in the gali in front of his house. He denied that the ac- cused has been falsely implicated in the present case for extorting money from him.
PW -2 Atul Dixit is the son of complainant and the person who had sustained injuries during the alleged incident in question. He de- posed that on 26.01.2011, while he was playing cricket in Gali no. - 38 Raja Puri, then at about 5:30 PM when he was batting, the ball went to the vacant plot adjacent to the House no. 54 which be- longs to accused Vinay Gupta. He further deposed that the ac- cused was carrying out construction work at his house. He further deposed that the accused used to threatened him of giving beat- ings and restricted him from playing cricket there and when on the date of incident, he reached the said vacant plot, accused had thrown a sack filled with bricks upon him. He further deposed that as soon as the said sack fell upon him, he bent down to save his head but the sack fell over his leg and after that he became uncon- scious. He further deposed that his friend Yashwant who was playing along with him went to inform his father and at that time, his other friends Subhash, Nishant, Mohit and Tarun were also present. He further deposed that his friend Subhash rushed to State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 4 save him and held him but he found his leg fractured. He further deposed that he was crying for help to Subhash and thereafter, he was admitted to hospital. He further deposed that the police never recorded his statement nor he signed any documents. He correctly identified accused Vinay Gupta in the Court. During his cross-ex- amination, he stated that accused Vinay Gupta had never re- strained him from playing in the gali in front of his house before the date of alleged incident. He admitted that the incident took place on Republic Day which was a holiday and there was no single la- bor present at the house of accused at that time. He deposed that his first conversation with his father took place after the incident at Ganga Ram Hospital. He denied that accused has been falsely im- plicated in the present case for extorting money from him.
PW-3 Retired SI Krishan Kumar is a formal witness who deposed that on 26.01.2011 while he was working as a Duty officer, he re- ceived a rukka sent by SI Virender and on the basis of same he registered the FIR Ex. PW 3/A vide endorsement Ex. PW 3/B. PW-4 HC Rajbir Singh deposed that on 26.01.2011, he along with SI Virender went to house no. D -233 Madhu Vihar, Delhi and from there it transpired that the injured was taken to RML Hospital for treatment. He further deposed that the eye witnesses were searched at the spot but no eye witness could be found and there- after he along with SI Virender went to RML Hospital where injured Atul was found under treatment. He further deposed that IO recorded statement of father of injured Atul and prepared rukka, which was taken by him to PS and got the FIR registered. He fur- ther deposed that after registration of FIR, he returned to the spot and handed over the copy of FIR and original rukka to the IO. Dur- ing his cross-examination, he deposed that he and IO remained at State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 5 the spot for around half an hour but no eye witnesses were found there despite efforts for searching them. He could not state whether any construction was being carried out in the building in question or not.
PW-5 Inspector Neeraj Kumar was one of the IO in the present case. He deposed that on 07.12.2011, the investigation of the case was entrusted to him and during the course of investigation con- ducted by him, he collected the opinion qua the nature of injury suffered by injured/victim and filed the charge sheet after comple- tion of investigation. During his cross-examination, he admitted of having visited the place of incident after one year from the date of incident and at that time, the construction of the building of ac- cused as well as the adjacent plot was complete.
PW SI Birender (incorrectly numbered as PW-5) was the first IO in the present case and he also deposed on the lines as that of PW-4 HC Rajbir Singh and hence, his entire testimony is not being repro- duced to avoid repetition. Through him rukka was exhibited as Ex. PW 5/A, site plan as Ex. PW 5/B and arrest memo of accused as Ex. PW 5/C. During his cross-examination, he stated that no inves- tigation was conducted by him to verify the fact whether father of injured was present at the spot at time of incident or not. He could not state whether the complainant has made false or correct state- ment. He admitted that there is nothing on record to establish that the construction was carried out in House no. J-54 Gali no. 38 Raja Puri. He could not state if Vinay Gupta was actual owner of the property no. J-54 or not. He admitted that no bags of debris were found lying on the spot. He also admitted that at the time of his visit to the spot, no labor was found in House no. J-54. He de- nied that the investigation of the case was not conducted by him in State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 6 a proper manner or that accused has been falsely implicated in the present case.
4. This is the entire evidence on record.
5. After the completion of prosecution evidence, PE was closed and statement of accused u/s 313 Cr. PC was recorded wherein he alleged false implication and claimed innocence. Accused opted not to lead evidence in his defense.
6. During the course of arguments, Ld. APP has argued that the prosecution witnesses have supported the prosecution case and their testimonies have remained unrebutted. It has further been argued that on combined reading of testimonies of all the prosecution witnesses, offences u/s 288 and 338 IPC have been proved beyond doubt.
7. Per contra, Ld. Counsel for accused has argued that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials at the behest of complainant. Arguing further, Ld. Counsel for accused has inter-alia submitted that the story of prosecution cannot be believed as no independent public persons including the eye witnesses Subhash, Jaswant, Nishant, Mohit and Tarun etc. were associated in the investigation or were examined during the prosecution evidence. It has also been argued that the material prosecution witnesses have admitted that at the spot of incident no labors were found present nor any recovery of construction material and debris was affected either from the said spot or from the house of accused, which makes the story of prosecution unbelievable. It has also been argued that on the date of incident i.e. 26.01.2011, it was a public holiday on account of Republic Day and hence, there was no possibility of carrying out any State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 7 construction work at the house of accused or regarding the presence of any labor there in connection with such work. It has also been argued that no ownership documents of the House no. J-54 were collected during the investigation nor same were produced by prosecution during the trial of the case to establish the ownership of accused over the said house, without which it cannot be said that the construction over the said house was allegedly carried by accused. It has also been argued that the complainant and victim Atul have made considerable improvements in their version before the Court. It has further been argued on behalf of accused that the complainant and victim Atul have also admitted during their cross-examination that the accused never objected or restrained victim Atul from playing cricket in the gali in front of his house and therefore, there was no motive on the part of accused to indulge in the alleged offence. It has also further been argued that due to lacunae and incoherency in the story of the prosecution, accused be given benefit of doubt and are therefore, entitled to be acquitted.
8. I have heard submissions of Ld. APP for the State and Ld. Defense Counsel and have also perused the record carefully.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
9. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused has been indicted for the offences u/s 288 and 338 IPC.
10. For the sake of repetition, it is again reiterated that the sum and substance of the allegations as leveled against accused persons is that on 26.11.2011 at about 5:30 PM while thew State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 8 accused was carrying out construction/repair work in his house at J-54 Gali no. 38 Raja Puri, Delhi, he omitted to take the necessary precautions/order with respect to the building, which was sufficient to guard against any probable danger to human life and thereby he has committed offence u/s 288 IPC. It is also in the allegations that due to the rash or negligent act of accused i.e. the act of his throwing sack full of debris from the roof of his house, it fell upon victim Atul who was allegedly present in the vacant plot adjacent to the house of accused and suffered fracture in his leg, thereby constituting offence u/s 338 IPC.
11. Before proceeding on merits of the contentions advanced by prosecution and defense, we must advert ourselves to the essential ingredients for offences u/s 288 and 338 IPC.
Section-288 IPC makes punishable as an offence, an act done in a negligent manner with respect to pulling down or repairing the building. In order to hold a person liable for offence u/s 288 IPC, it is necessary that the following conditions shall be satisfied :-
i. That a building is pulled down or repaired at the instance of the person accused of the offence ii. That the accused knowingly or negligently omits to take necessary order or precautions with respect to such pulling down, repair work or construction work of the building which are sufficient to avoid any danger to the human life from the part of such building or material thereof.
12. The very act of the person undertaking the construction/ pulling down / repair work of the building in not taking sufficient precautions to avert danger to human life is sufficient to indict him State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 9 for offense punishable u/s 288 IPC.
13. Whereas, Section 338 of IPC deals with an offence of causing grievous hurt to a person by doing an act endangering life or personal safety of other and in order to hold a person liable for such offence, following conditions are required to be established :-
i. That the person accused of such offense shall do a rash or negligent act.
ii. That such rash or negligent act is done by the accused in such a manner which poses danger to human life and personal safety of others.
iii. That due to the rash or negligent at of the accused, the injuries in the nature of grievous hurt are caused to the victim.
14. It is pertinent to state that for indicting a person for offence u/s 338 IPC, it is necessary to establish the fact that the doer of the act was had either acted in a rash or negligent manner and due to such rash or negligent act, the grievous injuries were suffered by the victim. The fact that the injuries sustained by the victim were the direct consequence of the rash or negligent act of the accused is necessary to be established for holding the accused liable for offence u/s 338 IPC.
15. Having discussed the essential ingredients for offences u/s 288 and 338 IPC, now let advert ourselves to the merits of the present case.
16. In order to hold the accused liable for the alleged offences, the prosecution is primarily relying upon the testimony of PW-1 Ganesh Kumar Dixit and PW-2 Atul Dixit. PW-2 is the victim who State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 10 has allegedly sustained injuries during the incident in question and PW-1 is the father of victim. The first and foremost argument which has been advanced on behalf of the accused negating his culpability in the alleged offence is that the story of prosecution shall not be believed as no public persons including the eye witnesses namely, Jaswant, Subhash, Nishant, Mohit and Tarun who were playing with PW-2 at the time of the alleged incident, were not associated in the investigation nor were examined as witnesses during the course of trial. Pertinently, the careful perusal of the testimony of PW-2 Atul Dixit suggests that he has given a detailed and categorical deposition regarding the incident in question. PW-2 has coherently narrated that on the given date and time when he went to the vacant plot adjacent to the house of accused, accused Vinay Gupta had thrown a sack of bricks/debris upon him from the roof of his house, which fell upon his leg leading to his unconscious state. PW-2 has also coherently stated that due to the said act of accused, his leg got fractured. During the cross examination of PW-2, nothing discrediting his version could be elicited by the defense. The version of PW-2 was corroborated with the testimony of PW-1, who also deposed that after being informed about the incident by one Yashwant Rana, he went to the spot and saw that PW-2 was lying in the lap of one of his friend namely, Subhash in an injured state and thereafter, he was rushed to hospital. The careful reading of testimony of PW-1 and PW-2 would reflect that both of the said witnesses have stated that the persons namely, Yashwant Rana, Subhash, Nishant, Mohit and Tarun etc. along with some other persons from the neighborhood were present at the time of the alleged incident. Now, what remains to be considered is that whether the non-examination of the above-named persons including the persons from State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 11 neighborhood is fatal to the case of prosecution or not? In this regard, it is pertinent to state that it is not a general rule that the conviction cannot be based on the testimony of a sole eye witness. Even though, generally it is a rule of prudence followed by the courts that a conviction may not be sustained if it is not supported two or more witnesses who give the consistent account of the incident but in the fit cases, nothing bars the court to believe a reliable sole eye witness if in his testimony, he makes specific reference to the identity of the individual and his specific overt acts in the incident (references drawn from Ranjeet Singh and Others Vs. State of Madhya Pradesh, 2011 Cri LJ 283 (SC)). It is also worthwhile to mention here that it is settled proposition of law that an accused can be convicted based on the testimony of solitary witness if same is unblemished and gains confidence of the Court. Section 134 of Indian Evidence Act clearly provides that no particular number of witnesses is required to establish a case. It is the quality of evidence and not the quantity which is to be seen. At this stage, the reference can be drawn from the decision of Hon'ble Supreme court in case of Ramesh Krishna Madhusudan Nayar Vs. State of Maharashtra 2008 Cri.lj.1023 wherein it was held that on the basis of solitary evidence, conviction can be maintained. The conviction can be based on the testimony of single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone, conviction can be maintained. The above discussed principle was reiterated (albeit with certain qualifications) by Hon'ble Supreme Court in case of Amar Singh Vs. State (NCT of Delh ) Crl. Appeal no. 335/15 decided on State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 12 12.10.2020, wherein it was held that conviction can be based on sole eye witness' testimony only if he is wholly reliable but if there are doubts about testimony then court will insists upon corroborations. Relevant extract of the judgment is reproduced below :-
"16. 10, the finding of the guilt of two accused appellants recorded by two courts below is based on sole testimony of eye witness PW-1. As a general rule the court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. It is not the number, the quantity but quality that is material. The time honored principal is that evidence has to be weighed and not counted. On this principal stands edifice of section 134 of Indian Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise''.
Further, the Hon'ble Supreme Court in case of State through Inspector of Police Vs Laly @ Manikandan and Others 2022 SCC Online SC 1424 has again reiterated the ratio that there can be a conviction on the basis of deposition of sloe eye witness if the said witness is found to be trustworthy and / or reliable.
17. In view of the above discussed rulings, it becomes amply clear that there is no necessity of insisting upon the corroboration of the testimony of an eye witness with the testimony of the public witnesses and accused can be convicted even on the basis of sole testimony of complainant/ witness provided the said testimony must be unblemished and wins the confidence of the Court, if there State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 13 is any contradiction or doubt over the reliability of the witness, the Courts can insist on corroboration.
18. Further, it is also imperative to state that the testimony of the injured witness stands on a much higher footing then the other witnesses and the evidence of such injured witness should be relied upon unless there are major contradictions and discrepancies therein (references drawn from State of U. P. Vs. Naresh 2011 (3) ALJ 254 ( SC)).
19. In the present case, there is no doubt that the persons namely, Yashwant, Subhash, Nishant, Mohit and Tarun as well as the other persons from the neighborhood who were present at the time of the incident should have been associated in the investigation and ought to have been examined as the prosecution witnesses but given the fact that PW-2 Atul Dixit, who is not only the eye witness to the incident but also the victim in the present case, has made a coherent statement in his testimony, which has also been duly corroborated in material particulars by the testimony of PW-1, therefore, the mere fact that the prosecuting agency has failed to join the afore-named persons as the witnesses in the present case, cannot be a ground to reject the testimony of PW-2. Therefore, the arguments made on behalf of accused in that regard are rejected.
20. As it has been held in the fore-going part of the discussion that there is no bar to act upon the sole testimony of PW-2 Atul Dixit, which is otherwise coherent and convincing in nature, therefore, let us now advert to the other contentions raised on behalf of accused negating his culpability in the alleged offence. Ld. counsel for accused has inter-alia argued that the prosecution State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 14 has not led any evidences showing that the accused was the owner of House no. J-54 Gali no. 38, Raja Puri, Delhi or that the construction or repair work in the said house was done at the behest of or under the instructions of the accused. Further, it has also been argued that as per the version of prosecution witnesses including PW-1 as well as the IO of the case that no labors doing the construction work were found at the spot and that in fact there was no possibility that any sort of construction work could have been done in the aforesaid premises as it was a public holiday on account of the Republic Day. It has also been inter-alia argued that even no construction material or the sack of debris/bricks was seized by the IO during the course of investigation of the case which clearly negates the complicity of accused in the alleged offence. The aforesaid arguments advanced on behalf of accused are considered together as they involve the discussion regarding the same set of facts and evidences. Undeniably, as per PW-1, when he reached at the spot no labor was found present and similar is the version of PW-4 and PW-5 who had taken part in the investigation of the case (being the police official who accompanied IO to the spot and IO respectively), that no labor were found by them when they reached the spot after receiving the information regarding the incident. It is also an undisputed fact that the alleged incident took place on 26.01.2011 i.e. on the day of Republic Day. Further, on perusal of testimony of PW-1, PW-4 HC Rajbir Singh and PWs Inspector Neeraj Kumar and SI Birender, it emerges that even no construction material or sack of debris/bricks were seized from the spot or from the possession of accused during the course of investigation of the case. Furthermore, it is also apparent from testimony of PWs Inspector Neeraj and SI Birender that during the investigation of the case, State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 15 they have not seized the documents pertaining to the property no. J-54 Gali no. 38 Raja Puri, Delhi nor have examined any witnesses showing that any construction or repair work of the aforesaid premises was being done by the accused Vinay Gupta. In absence of any evidences regarding the fact that the accused Vinay Gupta was carrying out any construction or repair work in the House no. J-54 Gali no. 38 Raja Puri, Delhi, this Court is of the considered view that the essential ingredients for holding the accused liable for offence u/s 288 IPC are not fulfilled in the present case and thus, accused is liable to be acquitted for the aforesaid offence.
21. In so far as the liability of accused with respect to offence u/s 338 IPC is concerned, it is pertinent to state that PW-2 has not only given a detailed account of the incident inter-alia stating that accused Vinay Gupta had thrown a sack on bricks from the roof of his house when he went to pick the ball from the adjoining vacant plot but the said witness has also withstood the test of cross- examination. Nothing impeaching the credit of PW-2 has been brought on record by defense and from the coherent testimony of PW-2, it clearly perceives that the sack of bricks/ debris was thrown by the accused from the roof of his house at J-54 Gali no. 38 Raja Puri, Delhi, which fell upon the leg of PW-2 leading to fracture on the same. Pertinently, during the course of his statement u/s 313 Cr. PC, the accused has not disputed that he was not present at House no. J -54, Gali no. 38 Raja Puri, Delhi and has only raise a stand that the aforesaid property is not in his name. Undeniably, there is no evidence on record that the aforesaid property is in the name of accused but from the mere fact that accused is not the owner of the said property is in itself not sufficient to presume that he was not present in the said State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 16 property at the time of incident. No plea of alibi i.e. the presence of accused elsewhere has been raised by the defense and rather on careful scrutiny of case record, more particularly the record of bail bonds and vakalatnama of accused, it emerges that the accused is the resident of House no. J-54 Gali no. 38 Raja Puri, Delhi. The copy of Aadhar Card of accused which has been annexed with the bail bonds furnished by him also suggests that the address of accused is House no. J -54 Gali no. 38 Raja Puri, Delhi. Therefore, in the considered view of this Court, the presence of accused at House no. J -54 at the time of incident has been clearly established by the prosecution. Besides, the testimony of PW-2 has also clearly established that the accused had thrown the sack full of brickS/debris from the roof of his house into the vacant plot where the PW-2 went for taking his ball and such an act of accused in throwing a heavy weight object with an intensity from the roof of his house is sufficient to attribute the failure on his part in taking due care. The accused should have been careful in his action and it was not permissible for him in any circumstances to throw a sack of debris/bricks from the roof of his house into any adjoining premises so as to avert any danger to the life and public safety of inhabitants of the surrounding vicinity but the accused has clearly failed to do so, thus it also appears that the prosecution has successfully established that the accused has acted in a negligent manner. Further, it also perceives from the testimony of PW-1 and PW-2 that due to the acts of accused, the leg of PW-2 got fractured. On perusal of the MLC and X-ray report of PW-2 which are Ex. P1 and Ex. P2 respectively, it also emerges that the PW-2 has suffered fracture in his leg, thus constituting a grievous injury. The genuineness of the aforesaid MLC and Xray report of PW-2 was not disputed by the accused as the aforesaid State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 17 documents were admitted vide statement of accused u/s 294 Cr. PC. Further, no dispute was raised by accused qua the authenticity/genuineness of aforesaid medical records of PW-2 during his statement u/s 313 Cr. PC. Therefore, it also emerges that the prosecution is successful in establishing that due to the negligent act of accused, grievous injuries were suffered by PW-2. Even though, it has been argued on behalf of accused that during the course of their examination both PW-1 and PW-2 have ruled out that the accused used to stop/ restrain PW-1 and other children from playing in front of his house and due to the reason that prosecution has failed to establish any motive on the part of accused to cause injury or harm to PW-2, the accused is liable to be acquitted. However, this argument put forth by defense deserves to be rejected as same does not hold any ground. Pertinently, the discussion made in the fore-going part of this judgment has led to a conclusion that the accused was negligent as he failed to take necessary care while throwing the sack of debris/bricks from the roof of his house. The state of negligence is a condition where a person has acted in a particular way without following the necessary precautions or duties which a prudent person ought to have taken and a negligent act is not guided by any motive or culpable intention on the part of doer of such an act. In other words, there is a requirement of establishing motive of crime on the part of the accused so as to establish his culpable intention as motive serves as clue to the intention but in cases where the commission of rash or negligent act is alleged against accused, there is no requirement of establishing any motive on the part of such accused. Therefore, the contentions raised on behalf of accused in that regard appears to be completely misplaced and same are rejected.
State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 18
22. It is also been argued on behalf of accused that the recovery of the sack of bricks/debris allegedly thrown by accused over the victim was not affected in the present case and for want of such recovery, the accused cannot he held liable for the alleged offences. In this context it would be pertinent to cite the ruling of Hon'ble Supreme court in State through Inspector of police Vs. Laly @ Manikandan and others 2022 SCC Online 1424 wherein it was inter-alia held that even if the recovery of weapon is not established or proved, the same cannot be a ground to acquit accused when there is direct eye-witness account available on record. Recovery of weapons used in the commission of offense is not a sine-qua-non to convict the accused. If there is direct evidence in the form of eye witness, even in the absence of recovery of weapon, accused can be convicted.
23. In the instant case, there are direct eye witnesses of the incident i.e. PW-2 whose testimony does not suffer from any material contradictions. He has completely supported the case of the prosecution qua the culpability of accused. The testimony of PW-2 was also corroborated in material particulars with the testimony of PW-1. Hence, I find that the failure of investigating agency to recover the sack of bricks/debris thrown by the accused upon the victim would not be fatal to the case of the prosecution and the contentions raised on behalf of accused to such extent are also rejected. It has also been argued that there exist some contradictions in the testimony of prosecution witnesses due to which the benefit of doubt should be given to the accused. Undeniably, there are some contradictions in the testimony of PW- 1 and PW-2 but such contradictions would not automatically make State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 19 such testimonies unreliable. It should be noted that there is no material improvement in the version of the material prosecution witness on the basic premise of case qua the culpability of the accused in the alleged offence. The crux of the statement given by the PW-1 and PW-2 before the police and the court has remained same. It should be noted that there is nothing improbable or unreliable in the testimony of PW-1 and PW-2 thereby making their testimony wholly unreliable. It is to be appreciated that the minor contradictions in the testimonies of witnesses which does not go to the root of the case deserves to be ignored but conversely, the material contradictions and omissions in the testimony of witnesses which goes to and attacks the very roots of the case cannot be ignored. However, in the present case, no such material contradictions have surfaced which makes the story of prosecution unreliable and therefore, the contentions of defense to this extent are also rejected.
24. In view of the discussion made above, this Court is of the considered view that the prosecution is unsuccessful in establishing that on the given date, time and place the accused was carrying out construction/repair work in his House at J-54 Gali no. 38 Raja Puri, Delhi and had omitted to take such order with the building which was sufficient to guard against any danger to human life and therefore, the accused stands acquitted for the offence u/s 288 IPC. However, in the considered view of this Court, the prosecution has successfully proved that on given date, time and place the accused has acted in a negligent manner and had thrown sack of debris/bricks from the roof of his house upon the victim Atul Dixit and has thereby caused grievous injuries to him, therefore, the accused deserves to be convicted for the offence u/s State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 20 338 IPC. Accordingly, I hereby return the finding of conviction of accused for only for offence u/s 338 IPC. The accused namely, Vinay Gupta is hereby convicted for the offence punishable u/s 338 IPC.
25. Let the accused be heard separately on the point of sentencing.
(Rishabh Kapoor) Judicial Magistrate First Class-05 (South-West)/Dwarka 19.07.2025 State Vs.Vinay Gupta FIR No: 33/2011 U/s: 288/338 IPC P.S.Vikas Puri 21