Delhi District Court
State vs Vinay Kumar Seth on 2 May, 2025
IN THE COURT OF SH. SAHIL MONGA
JMFC-06, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
JUDGMENT
STATE VS. Vinay Kumar Seth
FIR No. : 135/18
P. S. : Parliament Street
U/s : 279/338 IPC
CNR No. : DLND02-029979-2019
a Cr. Case No. : 9641/2019
b The date of commission : 13.12.2018
c The date of Institution of the case : 04.12.2019
d The name of complainant : Sikander
e The name of accused person and his : Vinay Kumar Seth S/o Sh. Roshan Lal Seth parentage f The offence complained of : 288/338 IPC g The plea of accused : Not guilty h Orders reserved on : 26.03.2025 i The final order : Acquitted u/s 288/338 IPC j The date of judgment : 02.05.2025 JUDGMENT
1. It is the case of the prosecution that on 13.12.2018 at about 02.08 p.m. at PHQ Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2025.05.02 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 1/8 16:43:18 +0530 under construction building, Jai Singh Road, New Delhi, accused being General Manager of the project going on in the above mentioned building failed to ensure the safety of labourers/injured and accused failed to take appropriate measures to cover centralized AC Shaft due to which injured fell in the said saft and sustained grievous injury for which FIR bearing No. 135/18 was registered against the accused Vinay Kumar Seth i.e the General Manager. Investigation was completed and charge-sheet u/s 288/338 IPC was filed against the accused. Accused appeared before this court and after compliance under section 207, charge under section 288/338 IPC was framed against him to which accused pleaded not guilty and claimed trial. On his appearance in the Court, the copies of documents relied upon by the prosecution, was supplied to him as per norms.
2. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sh. Balram PW-2 Sh. Sanjay PW-3 SI Manoj Kumar PW-4 HC Babu Heleem DOCUMENTARY EVIDENCE Ex. PW3/A Rukka Ex. PW3/B Site Plan Ex. PW3/C, Ex. Notices PW3/D and Ex.
PW3/E
Digitally
signed by
SAHIL
SAHIL MONGA
MONGA Date:
2025.05.02
16:43:22
+0530
FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 2/8
3. The accused had admitted the FIR No.0135/18 dated 13.12.2018 PS Parliament Street with DD No. 020 A Ex. A1 dated 13.12.2018 and certificate U/s 65 B Indian Evidence which are Ex. A-1 under Section 294, Cr.PC and hence the examination of the witnesses were dispensed with. This is the entire evidence in this matter.
4. Thereafter, PE was closed and statement of accused under section 313 of the Code was recorded. In his statement u/s 313 Cr.P.C, accused has stated that he is innocent and he has been falsely implicated in the present case. He chose not to lead any Defence Evidence.
5. I have heard the learned counsel for the accused and the learned APP for the State. I have also perused the record very carefully.
6. The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2025.05.02 16:43:26 +0530 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 3/8 imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
7. Before appreciating the evidence, a glance at the relevant statutory provisions of IPC, is necessary for the disposal of this case.
Section 288 IPC -
"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."
Section 338 IPC-
Section 338 of IPC provides punishment for causing grievous hurt by act endangering life or personal safety of others and lays down that:-
"Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both".
A combined reading of above stated provision would reveal that, in order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned U/s 288/338 IPC:
(a) The accused was pulling down or repairing the building;
(b) The accused omitted to take such order with that building as was sufficient to guard against probable danger to human life from the fall of the building or any part thereof;
(c) The omission complained of was due to negligence or with the knowledge of such probable danger. Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2025.05.02 16:43:29 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 4/8 +0530
(d) He did act rashly or negligently; and
(e) Such act/omission endangered human life or personal safety of others.
Decision and brief reasons for the same
8. In the case in hand, the prosecution has cited as many as ten witnesses in list of witnesses annexed with the charge-sheet. Out of these eleven witnesses, PW Sikander was the victim and the eye witness himself who failed to appear before the court despite been given numerous opportunities to the prosecution and consequently he was dropped from the list of witnesses vide order dated 04.01.2024. The only material witness examined by the prosecution is PW1 Balram and PW2 Sanjay who are the labourers working in the building in which construction work was going on at the alleged time. PW Balram and PW Sanjay were examined as PW1 and PW2 who deposed on the same line that that during the construction work , their friend Sikander fell down from 14th floor, where the work for centralised AC was going on, and he fell due to the negligence of the company and due to the reason that shaft was not covered and the company had not provided safety equipments . PW1 and PW2 further deposed that Sikander had stucked on 6th to 5th floor and had suffered injuries on his head. PW1 and PW2 were cross examined by Ld. Counsel for accused wherein they deposed they came to know about the fall of their friend when the heard hue & cry and they working in adjacent building. Both of them further admitted that they are not aware as to how Sikander fell which implies that they did not see him falling. I am of the considered opinion that guilt of the accused cannot be proved from their testimonies, in as much as, the victim did not fall in their presence nor it is the case of the prosecution.
9. Pertinently, falling down of victim from 14th floor is not a matter of contest but an admitted fact. However, in order to prove negligence or rashness on the part of the accused, it was imperative on the part of the prosecution to prove that the accused SAHIL had MONGA Digitally signed by SAHIL MONGA Date: 2025.05.02 16:43:33 +0530 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 5/8 failed to take proper care to guard against any probable danger to human life. Further, it was also required to be proved that due to such failure to take care, there was a danger to life and personal safety of others. However, prosecution has miserably failed to prove both of these facts. As per the prosecution, accused was responsible for taking caution during the construction work for the safety of laborers , however it has not been proved by the prosecution as to how was the accused responsible for taking caution. In the testimony of the PW1 and PW2 they did not depose against the accused herein incriminating him of failing to take care of precautions rather they deposed that company did not provide safety equipments and it was the company who was negligent. The prosecution has further failed to prove that accused was the directly responsible person to take care of the the safety measures for the labourers as he was not the safety engineer. No concrete evidence has been brought on record to satisfy the court regarding the negligent role played by the accused in the construction process. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
10. Admittedly, the other labourers who were doing the construction work and had seen the victim falling have not been produced in evidence without any reasonable cause. No eye witness to the incident has been produced by the prosecution. Hence, it can not be deduced that the incident occurred due to any negligence on the part of the accused. It can also not be ruled out that the victim could also have fallen due to his own mistake. It is baffling to note that IO did not take steps for finding out whether accused had omitted to take sufficient care to safeguard against any probable danger to human life by by obtaining an expert opinion in this regard. Merely the General Manager had not appointed a safety engineer on that day does not make him guilty of doing the rash and negligent act. There is absolutely nothing on record to suggest that Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2025.05.02 16:43:37 +0530 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 6/8 accused was the person who was supposed to take caution or proper care at the alleged place of construction. The court cannot act on mere conjecture and surmises when evidence is deficient.
11. It is observed that rash/negligent conduct is an essential ingredient of section 288 IPC and section 338 IPC also talks about the rash or negligent conduct which results in endangering of human life and personal safety of others. Prosecution has failed to prove the rashness or negligence on the part of the accused as it has miserably failed to tie the accused with the alleged offence. It is well settled that it is the duty of the prosecution to prove the guilt of accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favour of the accused.
12. The entire evidence of the prosecution appears to have been based on bland testimonies. In such circumstances, accused cannot be convicted on presumptions or surmises, rather, all the ingredients including rash or negligent act as mentioned U/s 288/338 IPC are required to be established.
13. The findings given by Hon'ble Apex Court in case titled as B.C. Ramachandra Vs. State of Karanataka, 2007 Cri. L.J 475. are relevant and re- produced as under:
"In criminal proceedings, the burden of proving negligence as an essen- tial ingredient of the offence lies on the prosecution. The said ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur"
14. The IO has failed to properly and comprehensively investigate this case as to what exact precautions or steps, the accused ought to have taken for averting the accident/incident. The possibility of the occurrence of the incident on account of miscalculation, human error or error of judgment cannot be ruled out. There is not even Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2025.05.02 16:43:41 +0530 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 7/8 an iota of incriminating evidence against the accused to fix their liability U/s. 288/338 IPC. The prosecution has failed to prove its case by not leading convincing and cogent evidence and thus have failed to discharge the onus placed upon it. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Hence, the accused is entitled to benefit of the doubt.
15. I am of the considered opinion that that the materials and evidence on the record do not bridge the gap between "may be true" and "must be true" so essential for a Court to cross, while finding the guilt of an accused.
16. Consequently, accused namely Vinay Kumar Seth is ACQUITTED of the crime charged.
Digitally signed by SAHILSAHIL MONGA Date:
MONGA 2025.05.02 16:43:46 +0530 Announced in open Court (Sahil Monga) on 02.05.2025 JMFC-06/PHC/NDD Delhi 02.05.2025 FIR No. 135/18 State Vs. Vinay Kumar Seth Page No. 8/8