Delhi District Court
State vs . Amit & Etc. on 24 August, 2023
FIR No. 172/2013 PS South Rohini
State Vs. Amit & Etc.
IN COURT OF METROPOLITAN MAGISTRATE 07, (NORTH-WEST
DISTRICT) ROHINI COURTS, DELHI.
Presided over by: Ms. Ritika Kansal, DJS.
Cr. Case No. : 531419/2016
Case ID No. : DLNW02-001730-2014
FIR no. : 172/2013
Police Station : South Rohini
Section(s) : 325/323/341 of Indian Penal Code, 1860
In The Matter of :
STATE
Vs
1.ANSHUL ARORA
S/o Sh. Anil Arora
R/o E-66, Sector -1
Avantika Rohini,
Delhi
2. ANKIT AWAL
S/o Sh. M.P. AWAL
R/o E-66, Sector -1
Avantika Rohini,
Delhi
3. AMIT
S/o S/o Sh. M.P. AWAL
R/o E-66, Sector -1
Avantika Rohini,
Delhi ...Accused Persons
Page 1 of 21
FIR No. 172/2013 PS South Rohini
State Vs. Amit & Etc.
1. Name of Complainant Kinshuk
2. Name of Accused 1. Anshul Arora
2. Ankit Awal
3. Amit
3. Offence complained of 325/323/341 of Indian Penal Code,
1860
4. Date of Incident 15.06.2013
5. Date of Institution of case 22.02.2014
6. Plea of Accused Not Guilty
7. Date of Reserving Order 21.08.2023
8. Date of Pronouncement 24.08.2023
9. Final Order Acquitted for offences u/section
325/341 Indian Penal Code 1860
&
Convicted for offence U/section
323/34 Indian Penal Code, 1860
1. Almost on daily basis one reads about parking related violence which is
on rise especially in big cities like Delhi owing to increase in number of cars
owned by a household with limited-no private parking space coupled with lack
of tolerance and anger management issues amongst common citizen. Sadly,
arguments over parking related issues do not end with mere hot exchange of
words but situation in various cases escalate to a point which is potentially
harmful to people and public property. Instant case is example of such
unfortunate scenario where parties have not only landed up in the court after a
parking issue but had also turned inimical towards each other, admittedly filed
complaints against the other side and despite passage of almost 10 years could
not settle the matter amicably even though the offences alleged by the
prosecution are compoundable by Criminal Procedure Code, 1973.
Page 2 of 21
FIR No. 172/2013 PS South Rohini
State Vs. Amit & Etc.
FACTUAL BACKGROUND: TWO VERSIONS
2. Gist of the prosecution story is that complainant (namely Kinshuk) along with his brother (namely Kush) and father (namely, Dr. V.K. Singh) had come to visit their new house located in sector -2 Rohini on 15.06.2013 at around 6:30 in the evening and they had parked their Honda City outside the house in-front of one sweet shop (namely Bikaner Sweets) and later they saw that someone had parked a Maruti Zen behind their car due to which they could not take out their car. So, they waited, they inquired, they blew horn and ultimately they sat down in their own car and waited. After some time, they noticed two boys (accused Amit and Ankit) going towards the Maruti Zen. Seeing them, complainant came down from his car and went up to them to seek explanation but he was rather beaten up by the two accused. Seeing this, complainant's brother and father also came out from the car to intervene and in meanwhile co-accused (namely Anshul) also joined in and all three accused gave leg and fist blows to the complainant and his family members which resulted in nasal bleeding to complainant which was later discovered to be result of a fracture and simple injuries to complainant's father and his brother. After investigation, all accused were charge-sheeted for causing wrongfully restraint to complainant, causing grievous injuries to complainant and simple injuries to his father i.e., offences punishable u/sections 323/325/341/34 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").
3. The accused persons have presented an alternative version of events. As per them accused Ankit and Amit had come to meet accused Vishal at a Flat No. 84, Shop-1 located in pocket-6, sector 2 Rohini and they already had their Maruti Zen car parked in front of that shop. The said car was hit from behind by the Honda City car of complainant (and his family members) which lead to altercation between the two sides. Accused persons were abused and beaten by complainant and his family. Complainant's father threatened them with dire Page 3 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. consequence claiming that he has good connections with higher police officials. Their false MLCs were prepared at behest of Dr. V. K. Singh (father of complainant) who was a head of department at Jaipur Golden Hospital, police had acted partially and did not take the accused persons for their medical examination. As per defense the whole case has been filed on false concocted version of complainant (and his family) with support of local police.
BEFORE THE COURT
4. Accused persons were summoned to face trial vide order dt. 22.02.2014. They were supplied with the copy of the charge-sheet filed under section 173 of Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C."). Vide order dt. 29.01.2015, all accused were charged for the offences u/section 325 IPC (i.e., for causing grievous injury to complainant), u/section 323 IPC (i.e., for causing simple injuries to his father), u/section 341 IPC (i.e., for wrongfully restraining the complainant, his brother and his father) read along-with section 34 of IPC (i.e., acts done by the accused persons in furtherance of their common intention). All accused pleaded not guilty and hence the trial commenced.
5. Prosecution cited as many as 11 witnesses and relied upon various documents which are as follows. PW at serial No. 7 Dr. Arvind was dropped from the list of witnesses at request of Ld. APP for the state. After examining the witnesses mentioned below, prosecution evidence was closed vide order dt. 12.04.2023.
ORAL EVIDENCE
PW-1 :- Kinshuk (Complainant & Injured)
PW-2 :- Kush Bhardwaj (Injured & Eye-witness)
PW-3 :- V.K. Singh (Injured & Eye-witness)
PW-4 :- ASI Devender (Duty Officer)
PW-5 :- W/Ct. Balkesh (DD Writer of DD No. 57B)
PW-6 :- Dr. Brijesh Patel (Prepared MLCs of two injured)
Page 4 of 21
FIR No. 172/2013 PS South Rohini
State Vs. Amit & Etc.
PW-7 :- SI Naresh Kumar (Investigating Officer)
PW-8 :- Dr. Kumar Akhilesh (Acquainted with handwriting of Dr. Sandeep)
PW-9 :- Dr. Dheeraj Gupta (Prepared X-Ray Plat No. 2183 of V. K. Singh)
PW-10 :- Dr. Sandeep (Prepared MLC of V. K. Singh)
PW-11 :- HC Ram Avtar (Accompanied IO, rukka carrier & arrest witness)
DOCUMENTARY EVIDENCE
Ex. PW-1/A :- Statement of Complainant
Ex. PW-1/B :- Site Plan
Ex. PW-4/A (OSR) :- Copy of FIR
Ex. PW-4/B :- Endorsement on Rukka
Ex. PW-5/A (OSR) :- DD No. 57B
Ex. PW-6/A :- MLC No. 6358/13 of complainant
Ex. PW-6/B :- MLC No. 6359/13 of PW-2/Kush
Ex. PW-6/C :- MLC No. 6441/13 of PW-3/V.K. Singh
Ex. PW-7/A :- Rukka prepared by IO
Ex. PW-7/B :- Arrest Memo of Accused Amit
Ex. PW-7/C :- Personal Search Memo of Accused Amit
Ex. PW-7/D :- Arrest Memo of Accused Ankit
Ex. PW-7/E :- Arrest Memo of Accused Anshul
Not Exhibited X-Ray Plate No. 2183 of PW-3/V.K. Singh
6. Thereafter, the accused persons were given an opportunity to explain the incriminating facts and circumstances against them in the present case and their statements u/section 313 Cr.P.C. were recorded separately. Upon statements of accused persons to the effect that they don't wish to lead defence evidence; the DE was closed vide order dt. 26.04.2023. Final arguments addressed by Ld. Page 5 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. APP for the state and by Sh. A.S. Choudhary Ld. Counsel for the accused have been heard. Written synopsis was also filed by Ld. Counsel on behalf of accused persons.
RELEVANT LEGAL PROVISIONS
7. Before proceeding further, it would be apt to first refer to the various legal provisions for clarity. Section 319 IPC defined the term "hurt" and section 320 IPC defines the term "grievous injury". Sections 321 IPC and 322 IPC define what it means to cause "voluntarily" hurt or grievous hurt to another and section 323 IPC and section 325 prescribes punishment for doing so. Further, section 339 IPC defines the offence of "wrongful restraint" and section 341 IPC prescribes punishment for the same. Section 34 IPC is a rule of evidence which incorporated principle of vicarious liability which makes a person other than principal offender vicarious liable for act of latter if both shares common intention. The language of these provisions is reproduced hereinafter for ready reference as follows:
"319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye.
Thirdly.--Permanent privation of the hearing of either ear.
Fourthly.--Privation of any member or joint Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face.Page 6 of 21
FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
"321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind."
"323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
"325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description Page 7 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. for a term which may extend to seven years, and shall also be liable to fine."
"339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section."
"341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
ANALYSIS AND EVALUATION
8. In relation to the offense of 'wrongful restraint,' it is crucial for the prosecution to establish the following elements:
(a) Intentional obstruction of an individual, and
(b) The obstruction must effectively hinder the person from moving in
a direction where they possess both the right and intention to go.
9. However, the prosecution's version of how wrongful restraint occurred lacks clarity. It is uncertain whether it was caused because the way the accused persons had parked their Zen Car or because complainant, his brother and father were physically stopped on the road as per complaint Ex.PW1/A ("मम झझ तथथ मझ रझ पपतथ जज वज भथई ररड पर ररक कर पजटथ हह "). The testimony of complainant and other two eye-witnesses (PW-2 and PW-3) is silent with respect to the how obstruction was caused to them by the accused persons except for stating that their vehicle Honda City was stuck due to Maruti Zen being parked behind it.
Page 8 of 21FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. To say that during the time complainant, his brother and father were beaten by the accused persons they were wrongfully restrained amounts to absurdity. "In every case of assault or hurt, certainly there will be a momentary restriction of the person injured but the gist of the offence either under S. 341 or S. 342, I.P.C. is that there must be a restraint when there is a desire to proceed in a particular direction" (1957 Cri LJ 769). It is admitted fact that complainant himself went up to the accused Amit and Ankit for seeking explanation for parking their vehicle Maruti Zen in an incorrect manner. Moving on, to say that accused persons caused wrongful restraint by parking their Maruti Zen behind their car in itself is insufficient to establish the offence as defined u/section 339 IPC. Firstly, the prosecution has failed to prove the intention (i.e., voluntarily) of the accused persons. Admittedly the space outside the house (No. 417, Pocket 6, sector 2, Rohini) is a public street. PW-1 in his chief examination had stated that they had parked their Honda City in front of Bikaner Sweets which according to him opposite to their house. During his cross-examination had admitted that "my house is not adjacent to the shops in the market". He further admitted that "cars are used to be parked at the place of incident as well as in the galis". He further stated that "Accused Ankit and Amit were taken to PS alongwith us in the same PCR...police officials remained at the spot for about 15-20 minutes. I do not remember as to what documents were prepared by the police officials at the place of incident. I do not remember whether police officials had measured the place of incident at my instance...it is wrong to suggest that no site plan was prepared at my instance or that I had signed a blank paper. It is wrong to suggest that site plan is incorrect." PW-2 when cross-examined, he admitted that "Bikaner Sweets is situated in the market". He volunteered to add "we parked our car at Bikaner Sweets which is nearly adjacent to my above said flat." He further agreed to the suggestion that "if we enter the gali from the main road our flat is third in number". PW-3/Father of complainant during his cross-examination revealed that "My Honda City car Page 9 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. can be parked before my flat but on that day same was not parked there. It is correct that my above said car was parked on the road where both the sides vehicles were parked". IO/SI Naresh who prepared site plan and PW-11 HC Ram Avtar (who accompanied the IO at the time site preparation) were also cross-examined in this regard. After going through their cross-examination, it appears that they may not have visited the place of the incident. PW-11 when cross-examined on point of site plan stated that "...I visited the spot twice...for the second time, I visited the spot along with the IO and the complainant and the IO prepared the site plan at the spot...it is wrong to suggest that IO did not prepared the site plan correctly on the instance of complainant. It is wrong to suggest that IO never prepared site plan in my presence. It is correct that I have not put my signatures on the site plan..." Relevant Extract of testimony of PW- 7/IO is as follows:
" ...I do not remember the exact geographical situation of the spot of incident. It is wrong to suggest that the siteplan Ex.PW1/B was not prepared at the site/spot but it was prepared at the PS...I do not remember the make of the car of Dr. V.K. Singh but the car of the accused was Maruti Zen which was parked behind the car of the complainant. I can not say as to the position of the parking of the both the cars. I can not say about the width of the lane in question. I can not say as to cars were parked at the back or in the front of the house No. 417. I can not say as to the said house is one side open, two side open, three side open or four side open. On the same day, I had inspected the spot. I did not take any photographs of the spot or of any of the vehicle...it is wrong to suggest that the vehicle were not parked at the spot i.e. H.No. 417 but was parked on the road in front of the shops. ...it is wrong to suggest that the cars were parked in front of Bikaner Sweets."Page 10 of 21
FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc.
10. Thus, it is clear from the testimonies of PW-1, PW-2, PW-3 that the Honda City was not parked by complainant outside their house. Admittedly their house is in a street and not on main road. It is also admitted fact that Bikaner Sweets is situated in the market and the Honda City car was parked on a public road and not in a private space. All the members of public have equal rights in public street. It is not the case of the prosecution that the Maruti Zen was parked by accused Amit and Ankit with the intention to cause obstruction to Honda City of complainant. Admittedly, parties are not previously known to each other. Hence, accused persons are entitled to the benefit of exception engrafted in the section 339 IPC itself. Otherwise also, it is not proved that the Maruti Zen were parked the way as stated by the PW-1, PW-2 and PW-3. It is essentially one person's word against another. During their chief-examination, PW-1 to PW-3 revealed only that much information which will create impression that since the Bikaner Sweets is just opposite to their house so they parked their vehicle in-front of said shop. Further, site plan prepared by the Investigating Officer (hereinafter referred to as "IO") at instance of complainant doesn't throw any light on the case. It is at best can said to be a formality completed by the IO. It doesn't tell us the exactly where both the vehicles were parked, what is the width of the lane. IO as clear from his testimony is clueless about the exact positions of the vehicles at the time of incident. He admittedly did not bother to get the alleged crime scene photographed. It seems that he narrated the version as told to him by the complainant and his family.
11. Now I proceed to examine the allegation of hurt and grievous hurt caused to complainant, his brother and his father by the accused persons. As clear from the section 323 IPC and 325 IPC, both the intention ("voluntarily") and the actus resulting in injury or body pain, discomfort or infirmity (as mentioned in section 319 and 320 IPC) has to be proved by the prosecution.
Page 11 of 21FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc.
12. In order to bring home the charge, prosecution has heavily relied upon testimonies of all injured persons, their MLCs and testimony of doctors who prepared the MLCs. PW-1, PW-2 and PW-3 have testified more or less on similar lines. IO who has been examined as PW-7 has also supported the prosecution version in material particulars. PW-1 to PW-3 and PW-7 were cross-examined extensively by the defence on similar lines to suggest that their MLCs have been manipulated by father of the complainant who himself was working as doctor at that time at Jaipur Golden Hospital and is acquainted with the police and court procedure. It was also suggested that the Maruti Zen of accused persons was already parked in-front of Shop No. 84, Pocket-6, sector-2, Rohini, Delhi and said car by hit by the complainant from behind leading to scuffle and it was rather the complainant and his family who abused, beaten and threatened the accused persons. It was suggested that accused persons have been falsely implicated by the complainant (and his family) as they have made complaints against them to various local authorities regarding illegal construction. All these suggestions have been denied by the PWs. I don't find it necessary to deal with suggestion related to motive of false implication as it is admitted by the PW-1 and PW-2 that various complaints were made accused persons to local authorities after registration of FIR. As far as such complaints being made prior to the registration of FIR are concerned, the suggestion has been denied but accused persons have failed to produce any document to prove otherwise. Furthermore, as far as suggestion of beatings to accused persons and threatening them by the complainant (especially by his father) is concerned, there is no PCR call made by any of accused persons. They did not get themselves examined even by a private doctor on the date of incident. Relevant Exact of testimonies of PW-1 to PW-3 is reproduced herein as follow:
PW-1 in his chief examination testified that "...when two persons came near the car we went outside our car and inquired from them as to where they were and due to them, we had waited for a considerable time...the Page 12 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. accused persons told us that they were standing there only and we must have inquired from them. When we told them that we were getting late then all of a sudden they started giving beatings to me. When my father and my brother came to rescue me then one of their associate namely Vishal came and he also started giving beatings to me, my father and my brother at the time of the above said incident...when the above said three persons stopped giving beatings to us, my father made a call at 100 number. Large number of public persons gathered there...police took us to the police station. Out statement were recorded by the police and we were sent to hospital for medical examination...after our medical examination, we returned back to PS. I was having severe pain in my nose as I had received punches from the accused persons and my nose also got deformed due to the said beatings. After 14-15 days of the incident, I was taken to Jaipur Golden Hospital by my father where it was revealed to me that I was fracture in my nose. My X-Ray was also got done at the time of my MLC but at that time fracture had not come. My fracture had come in MRI. My nose was operated upon." PW-1 during his cross-examination admitted that "my father is a doctor at Jaipur Golden Hospital for more than 10 years...it is wrong to suggest that there was no fracture in my nose or that my father manipulated the same. It is wrong to suggest that my father could not manipulate the doctors who initially examined me in the hospital other than Jaipur Golden Hospital...the police has not asked for our clothes. My father and brother were hut on the head by the accused persons and my father was having severe pain in his shoulders due to the beatings given by the accused persons. For some days, my father was having giddiness...MLCs of me, my brother and my father were prepared by the same doctor on the same day. It pained when I received injuries on my nose from the accused persons. My shirt got stained with my blood Page 13 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. coming out of my nose due to the incident. It is wrong to suggest that I was not having pain on my nose at the time of incident. I had not given shirt to the police officials as they had not asked for the same...it is wrong to suggest that all the 3 MLCs of me, my brother and father were prepared at instance of my father..."
PW-2 during his chief examination testified that "thereafter my brother and father who got down from the car, came back to the car. Then two persons came near the Zen car and when they were asked to remove the car they started giving beatings to my father and brother. ...when I also came down from the car, I was also given beatings by them. Thereafter both the above said accused persons had pushed us to the corner which was created due to parking of the cars. Then another boy namely Anshul...also joined...and gave beatings to us. The accused persons had caused injuries upon the head of my father and caused beatings to my brother on his nose due to which his nose got fractured and his shirt got stained with blood. I also sustained injuries due to the giving of beatings and I sustained injuries on my shoulder which I noticed after reaching my house...we all three were taken to the police station in the PCR Van alongwith accused Amit...the other two accused persons had managed to escape from here. Again said I went to police station alongwith my mother who was telephonically informed by my father from the place of incident and my father and my brother alongwith accused Amit were taken to the police station by PCR Van"
PW-2 during his cross-examination denied the suggestions of Maruti Zen car being hit by the Honda City car leading to scuffle. He was confronted with portion his previous statement recorded u/section 161 Cr.P.C. to highlight the omission that earlier he did not mention that two accused persons had fled from the spot. He also admitted that his father is Page 14 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. working as doctor at Jaipur Golden Hospital. He admitted that "we were taken to BSA hospital. We were not taken to Jaipur Golden Hospital...it is wrong to suggest that the MLC was prepared by the doctors of BSA hospital at influence of my father. It is wrong to suggest that no such incident happened on the day of incident..."
PW-3 during his chief-examination testified that "after 10 minutes two boys came and had started the Zen Car upon which me and my elder son ...went to them and asked them as to why they had parked their car in such a manner what we could not take our car. Upon this only both the boys came down from their car and started giving beatings to my son... When I and my younger son ...tried to intervene and save him than we were also given beatings by them. In the meanwhile another boy whose name was later revealed as Anshul also came there and he also gave beatings to us...when blood started coming out from the nose of my son namely Sh. Kinshuk in large quantities than I made a call to the police at 100 no. thereafter we all three along with the accused Amit were taken to the police station by PCR Van. Accused Ankit and Anshul had managed to escape from the place of incident...we all were taken to Dr. BSA Hospital for medical examination. I as well as my younger son also sustained injures in the above stated incident apart from my elder son. I sustained injuried upon my head and left hand. My younger son had sustained injuries upon his left shoulder."
PW-3 also admitted during cross-examination that during the year of incident, he was working at Jaipur Golden Hospital which falls within jurisdiction of South Rohini Police station and that although he does not interact with the police officials but he has experience as his advise is sought by them for fitness of patient for their statements. He also admitted that he had previously visited the court for purpose of evidence relating to other cases. He denied suggestion that Maruti Zen of accused Page 15 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. persons was hit from behind by them and accused persons were given beating at his instigation. He further stated that "...I had not again visited at BSA hospital in respect of the alleged injuries except on the day when we were medically examined by the police. The City Scan machine of BSA hospital was not working and my son sustained injury on his nose. I advised one patient for City Scan from BSA hospital and he told me that the machine of said hospital was not working...it is wrong to suggest that the city scan machine was in working condition at BSA Hospital. It is wrong to suggest that I had gone to Jaipur Golden Hospital instead of BSA hospital to procure the serious medical report under my influence, Police did not seize our clothes during the investigation. One accused was arrested on the same day but I do not know about the arrest of other witness...Anshu had hit on nose of my son Kinshu but I do not remember the said fact was mentioned in my statement. X-ray of me and my son Kinshu was done at BSA hospital by the doctor. It is wrong to suggest that there was no injury on the X-ray report. No X-ray was done at Jaipur Golden Hospital..."
13. From combined reading of the testimony of PW-1 to PW-3, one common thing which had emerged that they suffered certain injuries during incident. Nature of injuries is reflected from their medical reports (MLCs). The discussion over testimony of PW-8 is not warranted as he had appeared only on behalf of Dr. Sandeep who later appeared and testified as PW-10.
14. PW-1 and PW-2 were medically examined by Dr. Brijesh Patel, then working as Chief Medical Officer at BSA hospital. He testified as PW-6. He also stated that PW-3 was examined by Dr. Sandeep under his supervision. PW- 6 has not been cross-examined by the defence. No suggestion was given to him that the injuries reported in MLC can be self-inflicted or that he had prepared Page 16 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. false MLCs. He testified to the effect that upon the examination, blood clots in both nostrils of complainant and mild swelling over the right side of his forehand were found and he was referred to ENT, Senior Resident for further treatment and management. As far as PW-2 is concerned, no external fresh injuries were found. PW-6 testified that swelling with tenderness was present over thumb and palm of the PW-3 and he was referred to Ortho Senior Resident for further treatment and management. Dr. Sandeep who medically examined the PW-3 testified as PW-10 and Dr. Dheeraj Gupta who prepared X-ray report of PW-3 testified as PW-9. Both PW-9 and PW-10 were not cross-examined by the defence.
15. Thus, the injuries reported in MLC of PW-1 are in aligned with testimony of PW-1, PW-2 and PW-3 only to the extent that he suffered from nasal bleeding due to the incident. No X-ray report has been placed on record by the prosecution. Otherwise also as per testimony of PW-1, as per X-ray done at BSA hospital no fracture in nasal cavity was visible. As far his examination at Jaipur Golden hospital is concerned, there is absolutely no supporting material on record. PW-7/IO during his cross-examination on this aspect stated that "...I can not say whether the injured Kinsuk was referred to other hospital by the hospital authority of BSA hospital...I had not visited Jaipur Golden Hospital regarding this case...it is incorrect to suggest that there is no grievous injury on the person of Kinsuk. It is correct to suggest that I did not take any X-ray report of any alleged injured persons because I had already received the MLC reports from BSA hospital..." It was pointed out of defence counsel during final arguments there is overwriting at certain spaces in MLC of complainant. Same was never put to PW-6. Notwithstanding the same, it is no where mentioned by the PW-6 during his testimony that PW-1 was referred to radiologist by him for further examination and treatment. One Dr. Ankur who purportedly seems to have prepared X-ray film no. 2184 dt. 15.06.2013 has not been made Page 17 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. prosecution witness. No application for calling him as witness was moved in last 10 years for the reasons best known to complainant and the state. In view of afore-said it cannot be said that complainant had suffered from fracture in nasal cavity. Nasal bleeding doesn't fall within description of grievous hurt as defined u/section 320 IPC. Hence, the charge u/section 325 IPC cannot be sustained against the accused persons.
16. This brings us to section 323 IPC. The identity of accused persons is not disputed. Reading the cross-examination of PW-1 to PW-3 with statements of accused u/section 313 Cr.P.C. it is clear that they have not even disputed their presence or existence of a Maruti Zen at the place of incident. As already discussed above, they had presented an alternative account of events. However, there is no PCR call by any of the accused persons regarding the incident. They did not produce any medical document to support the allegation of beatings to them by complainant or his family members. Complainant, his brother and father were cross-examined extensively. No suggestion was given to them that the injuries are self-inflected. In-fact they were suggested that their medical documents were manipulated at behest of father of the complainant in connivance and support of local police. However, the doctors who prepared MLCs of complainant, his brother and father were not cross-examined by defence despite opportunity. Not even a suggestion was put that the MLCs were prepared at the behest of the complainant's father or police. Thus, prosecution has successfully proved that complainant and his father suffered simple injuries at hand of accused persons. Defence has failed to create dent in the prosecution's version as far as offence u/section 323 IPC is concerned.
17. The aforesaid conclusion takes us to the issue whether the accused persons could be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his Page 18 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. The phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the same intention or similar intention or common object. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention in order to incur joint liability. In the present case, the testimony of the all the injured persons clearly proves that all three accused persons acted in concert with each other and beaten them and caused injury to them in one transaction. Although no specific words were seemed to have been uttered to show a common intention but the description of the manner in which the offence was committed proves common intention to commit the offence with which the accused persons have been charged.
18. PW- 4/ASI Devender was posted as Duty Officer on the date of incident and recorded the FIR in question. Admittedly, he has no personal knowledge of the case. PW-5/W/Ct. Balkesh recorded the DD No. 57B. She is a formal witness and not cross-examined by the defence. Hence, no discussion is warranted as far as their testimonies are concerned.
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19. IO/SI Naresh has testified as PW-7 and HC Ram Avtar who accompanied the IO testified as PW-11. Their testimony has already been discussed in various paragraphs mentioned above.
20. During course of final arguments, Ld. counsel for accused pointed out that there are glaring defects in the investigation. He stressed on the aspect that the IO did not take the ownership documents of the both vehicles, vehicle were not seized, no mechanical inspection was done, crime scene was not photographed, clothes of injured persons were not seized and site plan is vague and incorrect. He further argued that no public witness was examined despite their availability and PW-1 to PW-3 are family members and hence are interested witnesses and therefore their testimony can not be relied upon. It has been argued that the factum that the Honda City was parked in front of Bikaner Sweets was not mentioned by PW-1 at the time of registration of FIR.
21. As far as contention related to non-joining of public witnesses is concerned, same is found to be without merits. It is also settled proposition of law that non-joining independent witnesses is not fatal to the case of prosecution when other prosecution witnesses are found to be trustworthy and reliable. (Reliance is placed upon) Guru Dutt Pathak Vs. State of Uttar Pradesh Cr. A. No. 502/2015).
22. Further, merely because PW-1 to PW-3 are family members they can said to be interested and unreliable witnesses. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would seldom implicate someone falsely and let the real culprit go scot-free. Reliance is placed upon (Abdul Sayeed v. State of Page 20 of 21 FIR No. 172/2013 PS South Rohini State Vs. Amit & Etc. Madhya Pradesh, (2010) 10 SCC 259). In the instant matter, defence has failed to point out any previous acquaintance or enmity between the parties.
23. As far as the defects in the investigation are concerned, same are apparent on the face of it. However, accused can not drive any benefit from same. An otherwise meritorious case, can not be thrown into dustbin because the investigating office was not diligent in collecting the evidences. Furthermore, FIR is not supposed to be detailed account of incident or an encyclopedia wherein complainant supposed to mention each and every detail. The purpose of FIR is to set the criminal law into motion and only as much information is required as indicates commission of cognizable offence. Thus non mentioning of exact position of the vehicle Honda City by the complainant in the FIR is not fatal to the prosecution case.
24. In ultimate analysis, in light of above discussion, all three accused namely Anshul Arora S/o Anil Arora, Amit S/o M.P. Awal and Ankit S/o M.P. Awal are ACQUITTED of the offence punishable u/section 325/341 IPC and are CONVICTED for the offence punishable u/section 323/34 IPC.
Pronounced in the open Court on this 24.08.2023 (Ritika Kansal) MM-07 (North West) Rohini Courts, New Delhi It is certified that this judgment contains total 21 each page signed by me.
(Ritika Kansal) MM-07 (North West) Rohini Courts, New Delhi 24.08.2023.
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