State vs Lakshay@Lucky on 15 February, 2025

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Delhi District Court

State vs Lakshay@Lucky on 15 February, 2025

          IN THE COURT OF SH. RAJ KUMAR
     ADDITIONAL SESSIONS JUDGE - 05, (CENTRAL
        DISTRICT) TIS HAZARI COURTS, DELHI


                                   CNR No.DLCT01-002023-2023
                                   Sessions Case No. 82/2023
                                   FIR No.353/2022
                                   PS: Timarpur
                                   U/s 307 IPC
                                   State Vs. Lakshay @ Lucky


a) Date of commission of offence                   : 06.11.2022
b) Name of the complainant                         : Vijay
                                                    S/o Ramswaroop


c)    Name of accused and address : Lakshay @ Lucky
                                    S/o Sh. Vijay
                                    R/o D-220, 1st Floor
                                    Gandhi Vihar,
                                    Timarpur, Delhi

d)    Offence complained of                        : u/s. 307 IPC


e)    Plea of accused                              : Pleaded not guilty
f)    Final order                                  : CONVICTED U/s
                                                       307 IPC
In view of the circular bearing No. 73362-73488/Rules/ Gaz./2024
dated 18.12.2024, the accused has been informed of the availability of
free legal aid services for pursuing further remedies, if any.
Contact Address of CDLSA:- Room no. 287, Tis Hazari Courts, Delhi

 SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 1 of 37
 Date of institution of the case                   : 21.01.2023
Date of committal                                 : 03.02.2023
Date on which judgment was                        : 28.01.2025
reserved
Date of judgment                                  : 15.02.2025

                                JUDGMENT

BRIEF FACTS OF THE CASE OF THE PROSECUTION

1. As per the case of the prosecution, the accused Lakshay @ Lucky on 06.11.2022, at 08:00-08:30 PM, near Auto Stand Gandhi Vihar, Delhi within the jurisdiction of PS Timarpur, caused injuries to the complainant Vijay with knife with such intention or knowledge and under such circumstances that if by that act, he had caused his death, the accused would have been guilty of murder and thus, the accused Lakshay @ Lucky committed the offence punishable u/s 307 of the IPC.

REGISTRATION OF THE FIR, INVESTIGATION AND CHARGE SHEET

2. The criminal machinery of the State was put into motion in the present case on receipt of DD no. 80A dated 06.11.2022 by SI Pradeep Chauhan, posted with PS Timarpur at the relevant time. Vide the above said DD entry no. 80A, the information was received to the effect that the injured Vijay Kumar was admitted in the hospital after receipt of stab injury at Gandhi Vihar Cut, Near CNG Pump. The information was given by Ajay Kumar, the brother of the injured.

SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 2 of 37

3. SI Pradeep Chauhan accompanied by Ct. Pankaj reached Trauma Centre, Civil Lines, Delhi and found that the injured with the alleged history of stab injury was admitted in the said hospital vide MLC no. 2618/2022. As per the MLC of the injured, the injured Vijay Kumar was having incised wounds approximately 5 cm x 2 cm with bowel loops protruding outside below umbilicus in hypogastrium area and protruded bowel loop lacerated at two sides at a distance of 3 cm from each other. The MLC has been prepared on 06.11.2022 at about 08:55 PM. The injured was unfit for statement as per the opinion of the treating doctor who handed over two sealed pullandas containing the blood samples and clothes of the injured to SI Pradeep Chauhan which were seized by him.

4. The above said FIR bearing no. 353/2022 u/s 307 IPC PS Timarpur, Delhi was lodged on 07.11.2022 at the instance of the injured/ complainant Vijay Kumar, who was fit for his statement on 07.11.2022. The complainant has alleged that he was plying an auto from Gandhi Vihar Auto Stand to GTB Nagar and a scuffle had taken place in between him and the accused Lucky a long time ago. The accused Lucky also used to ply auto rickshaw earlier but thereafter, he was sent to jail in some matter. At about 08:00-08:30 PM on 06.11.2022, when the complainant was waiting for the passengers by standing at Gandhi Vihar Auto Stand, then, the accused Lucky came at the spot and started quarreling and abusing the complainant. The accused Lucky SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 3 of 37 pulled out a knife by saying that he would kill the complainant and with the intention to kill the complainant, he gave a stab injury in the stomach of the complainant. The complainant ran away from the spot with a view to save his life and went to a private doctor near Batra Cinema by riding in an auto. In the mean time, the complainant gave a call to his brother Ajay who came there and took the injured to Trauma Centre, Civil Lines.

5. As per the charge sheet, the IO of the case SI Pradeep Chauhan made a search of the accused but he could not be found but ultimately with the help of the beat officer HC Mandeep, after identification by HC Mandeep, who stated that he was knowing the accused Lucky, the accused Lucky was apprehended by the IO of the case from near Dussehra Ground, A Block, Gandhi Vihar. The IO recorded the disclosure statement of the accused after arresting him. The weapon of offence i.e. the knife was recovered at the instance of the accused by the IO from the bushes near Dussehra Ground. The IO, in the charge sheet, has mentioned that as per the disclosure statement of the accused Lakshay @ Lucky, he disclosed that the weapon of offence was purchased by him for Rs. 80/- from a utensil shop at Shani Bazar, Gandhi Vihar, Delhi.

6. No eye witness was found to be at the spot as per the charge sheet and no CCTV footage was also found. The site plan without scale was prepared at the instance of the complainant, who also identified the photo of the accused from the dossier shown to him SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 4 of 37 by the IO. The nature of the injuries was opined to be 'grievous' by the concerned doctor.

7. After completion of the investigation, the charge sheet was filed u/s 307 of the IPC by the IO.

COGNIZANCE OF THE OFFENCE

8. Cognizance of the offence was taken by the ld. MM-02, Central District, Tis Hazari Courts, Delhi vide orders dated 27.01.2023.

SUPPLY OF COPIES AND COMMITTAL

9. Copies of the charge sheet and that of the documents annexed with the charge sheet were supplied to the accused Lakshay @ Lucky in compliance of Section 207 of the Cr.P.C. and thereafter vide orders dated 03.02.2023, the ld. MM committed the present case to the court of Sessions. Thereafter vide orders dated 07.02.2023, the case was assigned to the court of Sessions by the Ld. Principal District & Sessions Judge(HQs), Tis Hazari Courts, Delhi.

CHARGE

10. Finding a prima facie case against the accused Lakshay @ Lucky, vide orders dated 19.02.2023 passed by this court, the accused Lakshay @ Lucky was charged with the offence punishable u/s 307 of the IPC, to which the accused pleaded not guilty and claimed trial.

PROSECUTION WITNESSES

11. In order to prove its case, the prosecution has examined as many as 9 witnesses in all.

SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 5 of 37

12. Prosecution examined W/HC Bhajan Kaur as PW1. PW1 deposed that on 07.11.2022, she was posted as Duty Officer at PS Timarpur from 08:00 am to 04:00 pm. On that day, at about 11:40 am, Ct. Pankaj reached the police station alongwith a rukka sent by SI Pradeep Chauhan, on the basis of which, present FIR was registered, copy of which is Ex. PW1/A. The endorsement made on the rukka is Ex. PW1/B and she also identified her signature on the same. The certificate under Section 65-B of Indian Evidence Act regarding the FIR was exhibited as Ex. PW1/C. She lastly deposed that the copy of FIR, certificate u/s 65-B of the Indian Evidence Act and rukka were handed over to Ct Pankaj.

In her cross examination, PW1 deposed that she has no personal knowledge about the facts of the present case. She deposed that the contents of the FIR were fed into the Computer by the Computer Operator in her presence. She admitted that she has no knowledge to operate the computer.

13. PW2 is HC Ashwani, who deposed that on 06.11.2022, he was posted as MHC(M) at PS Timarpur. On that day, SI Pradeep deposited two sealed pulandas alongwith a copy of seizure memo which were entered into register No.19 at serial No.2654, copy of which was Ex. PW2/A (OSR). On 07.11.2022, SI Pradeep deposited one sealed pulanda/box alongwith a seizure memo which was entered into register No. 19 at serial no. 2655, copy of which was Ex. PW2/B (OSR). He further deposed that on 27.12.2022, the exhibits were sent to FSL Rohini through Ct.

SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 6 of 37 Surender Meena vide RC No. 176/21/22 which is Ex. PW2/C (OSR). Ct. Surender Meena handed him over the acknowledgment after depositing the exhibits with the FSL. He deposed that no tampering took place with the case property till the time the same remained in his custody.

In his cross examination, PW2 deposed that he made the entry in register No. 19 at about 10:30 am. SI Pradeep deposited the case property during the day time, however, he could not tell the exact time.

14. PW3 is Ct. Pankaj, who deposed that on 06.11.2022, he was on night emergency duty with SI Pradeep. At about 10:30 pm, he went to trauma centre with SI Pradeep where SI Pradeep was told by the doctor that injured was not fit to give the statement. Doctor handed over two sealed pulandas to the IO upon which, IO prepared a seizure memo Ex. PW3/A. He identified his signatures on the seizure memo. He alongwith IO went to the spot from the hospital where they could not find any eye witness. They again went to the hospital on the next day and IO recorded the statement of injured Vijay. IO handed over the rukka to him for registration of the FIR. After registration of the FIR, he took the rukka, computerized copy of the FIR and certificate u/s 65-B of Indian Evidence Act and handed over the same to IO at PS. He could not tell exactly where the said documents were handed over to the IO by him.

In his cross examination, PW3 deposed that the sealed pulandas handed over to the IO by the doctor contained the cloths and the SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 7 of 37 blood samples. They remained at the hospital for about one hour. On next day, they visited the hospital at about 10:30- 11:00 am. He could not tell time when rukka was handed over to him or the time when he reached the PS with the rukka or the time when he handed over the rukka and copy of FIR to the IO. He also could not tell that after how much time of handing over the rukka to the Duty Officer, the copy of FIR was handed over to him.

15. Dr. Jony Kumar was examined as PW4, who deposed that on 06.11.2022, he was on duty at Sushruta trauma centre in general surgery department. On that day, one patient namely Vijay Kumar was referred to the surgery department from casualty. The said patient was having injury in his abdomen and bowel who was operated for the injuries. He deposed that patient was not fit for statement at the time when police visited the hospital and an endorsement in this regard was made by a junior resident doctor under his supervision on the MLC Ex. PW4/A at point A to A1. He deposed that, later the opinion regarding the nature of injury was given as 'grievous' by him and the endorsement on the MLC Ex. PW4/A regarding the same is at point B to B1 bearing his signatures at point A. He also deposed that on 07.11.2022 at about 09:05 am, the patient was declared fit for the statement and endorsement in this regard was made on the request Ex. PW4/B given by SI Pradeep.

In his cross examination, PW4 deposed that the patient was referred to him at about 09:00 - 10:00 pm. Patient's brother SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 8 of 37 brought him to the hospital. The MLC of the said patient was not prepared by him.

16. Dr. Santosh Kumar Gupta was examined as PW5, who deposed that he was on casualty duty in Sushruta trauma centre on 06.11.2022. On that day, patient namely Vijay Kumar was brought to casualty, by his brother at about 08:55 pm with alleged history of stab injury at about 08:30 pm at Gandhi Vihar. He deposed that the patient had incised wound approximately 5 cm x 2 cm with small bowel loops protruded outside below umbilicus in hypogastrium area. The protruded bowel loop having lacerated wound at two sites with mucosa protruded at a distance of 3 cm from each other. He further deposed that MLC No. 2618/22 Ex. PW4/A of the patient was prepared by Junior Resident Dr. Pooja under his supervision. He identified his signature at point C and signature of Dr. Pooja at point B on the MLC. He deposed that the patient was referred to general surgery department for further evaluation and management.

In his cross examination, PW5 deposed that he did not personally examine the said patient.

17. Complainant Vijay was examined as PW6. He deposed that the incident took place on 06th November, however, he could not tell the year of the incident. He deposed that on the day of the incident at about 08:30 pm, he was waiting for passengers at Gandhi Vihar Highway Stand. Accused came from the opposite side and tried to hurt him with a cigarette butt by touching the same on his temple. When he protested, accused abused him and SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 9 of 37 said "tu mujhe janta nahi hai". He replied "mujhe pata hai ki tu kitna bada dada hai". Accused stated "aaj main tera kaam hi tamam kar dunga". Accused took out a knife and stabbed him in his abdomen due to which his intestine protruded from his abdomen. Thereafter, accused fled away from the spot. He tied a gamcha over his wound to stop the bleeding and rushed towards Gandhi Vihar Police Post. He further deposed that upon reaching there he found a known auto driver who took him to Durga Hospital at Mukherjee Nagar near Batra Cinema. Upon finding his situation as critical, he was referred to trauma centre by the doctor. Thereafter, he made a call to his brother Ajay who reached the said hospital, from where, PW6 was taken to trauma centre by his brother. On the next day, police recorded his statement Ex. PW6/A bearing his signatures at point A. He further deposed that on 28th of November, he pointed out the place of occurrence to the police after which a site plan Ex. PW6/B bearing his signatures at point A was prepared. He correctly identified the accused in the Court. PW6 was asked leading questions by the Ld. Addl. PP for the State, to which he affirmed the year of incident to be year 2022. He deposed that he could identify the case property upon which MHC(M) produced sealed parcels No. 2 and 3 bearing the seal of FSL. The same were opened and PW6 correctly identified the contents of parcel No.2 as his blood stained cloths i.e. jeans pant, shirt, vest and underwear as were worn by him at the time of incident. The blood stained cloths were exhibited collectively as SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 10 of 37 Ex. P-1. PW6 also correctly identified the contents of parcel No. 3 containing a knife as the weapon of offence. The said knife was exhibited as Ex. P-2.

In his cross examination, he deposed that public persons were passing through the spot and other auto rickshaws were also present at a distance of about 100 meters. He could not tell whether the streetlights present on the spot were beaming at the time of incident or not. The distance between the Durga Hospital and the spot was less than half kilometer. There was no CCTV camera at or near the spot. He deposed that he had no opportunity to raise the alarm when accused put burnt cigarette on his temple as he was immediately stabbed by the accused. He did not raise any alarm at the time of receiving of stab injury. He did not make any call to the police. He could not tell the name of the auto driver by whom or the registration number of the auto rickshaw in which he was taken to the hospital. Accused used to drive auto prior to the incident. He knew the address and family members of the accused. He deposed that there was no money transaction between him and the accused. His statement was recorded only once by the police. He further deposed that he told the name of the accused to the doctor concerned at the trauma centre. He again voluntarily deposed that on the day of incident, he was semi-conscious and therefore, he could not tell the name of the accused to the doctor. He deposed about the same at a later stage when his treatment was being followed up. He lastly deposed that SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 11 of 37 they reached the trauma centre from Durga Hospital within 15-20 minutes.

18.HC Mandeep was examined as PW7. He deposed that on 07.11.2022, he was on duty as beat officer at Gandhi Vihar. SI Pradeep Chauhan intimated him about the incident dated 06.11.2022 and disclosed the name of the assailant as Lakshay @ Lucky. Accused was known to him as accused was a resident of his beat. He further deposed that he alongwith SI Pradeep Chauhan went to the residence of the accused, which was found locked. They searched for the accused who was found at Dussehra Ground near A-Block, Gandhi Vihar and the accused was apprehended. SI Pradeep Chauhan interrogated the accused about the weapon of the offence, however, accused did not disclose anything. PW7 further deposed that accused was thereafter taken to the police station for interrogation where accused disclosed about the place of concealment of weapon of offence i.e. the knife. Disclosure statement of the accused was recorded as Ex. PW7/A. He further deposed that accused thereafter took them to the Dussehra Ground from where the weapon of offence was recovered from under the bushes. IO prepared the sketch of the said knife which is Ex. PW7/B. PW7 correctly identified the accused in the Court. IO prepared a pullanda of said knife and sealed the same with the seal of 'PC' vide seizure memo Ex. PW7/C. Thereafter, IO prepared the site plan of the recovery which was exhibited as Ex. PW7/D. Accused was arrested and was personally searched vide arrest memo Ex.

SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 12 of 37 PW7/E and personal search memo Ex. PW7/F. He also deposed that accused then led them to the place of occurrence where IO prepared the pointing out memo Ex. PW7/G. He identified the signatures at points A on all the above mentioned documents. Thereafter, they returned to the PS where case property was deposited in the malkhana. Accused was got medically examined and was produced before the Court who was then sent to judicial custody. IO recorded his statement.

PW7 was asked leading questions by the Ld. Addl. PP for the State, to which he affirmed that IO handed over the seal to him after use. PW7 further stated that the handing over memo Ex. PW7/H was bearing his signatures at point A. He correctly identified the case property i.e. the knife Ex. P-2. In his cross examination, PW7 deposed that they went to the house of the accused on foot. There was no CCTV camera on the spot. He deposed that he alongwith IO and accused went to the spot of occurrence during the day time, however, he could not tell the exact time. Accused was apprehended from Dusshera Ground at about 01:30 pm. No videography or photography was done at the time of recovery of the knife. No notice was served upon the public persons who refused to join the investigation. He could not tell whether any departure entry was made at the PS or not. The distance between the police station and police post was about 2½ Km. They went to the spot of recovery, alongwith the accused, by private car of IO. He could not tell the registration number or the make of the said car. He deposed that the SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 13 of 37 disclosure statement of the accused was handwritten. He again said, the same was typed on laptop. He further deposed that the length of the knife was measured at the place of recovery with a scale. IO was having a kit bag containing laptop, printer and other articles in his car. The pulanda of the knife was prepared at the place of recovery. He could not tell who deposited the IO's kit bag at the PS.

19.Dr. Arunima Aggarwal was examined as PW8 who deposed that on 06.11.2022, she was posted at Sushruta trauma centre, Civil Lines where two x-ray plates no. 7010 and 7011 pertaining to MLC No. 2618/22 were placed before her. Upon perusal, she did not find any fresh bone injury regarding which she prepared a report Ex. PW8/A bearing her signatures at point A. She was not cross examined.

20.IO SI Pradeep Chauhan was examined as PW9, who deposed that on the intervening night of 06/07.11.2022, he was posted at night emergency duty alongwith Ct. Pankaj. At about 09:55 am, Duty Officer informed him about DD No.80A regarding admission of injured Vijay Kumar in Trauma Centre, Civil Lines. Thereafter, he alongwith Ct. Pankaj reached the Trauma Centre where he collected MLC of injured Vijay Kumar bearing No. 2618/22. He further deposed that the doctor concerned opined that injured was unfit for statement and the doctor endorsed the same on the MLC Ex. PW4/A. The doctor concerned handed over two sealed pulandas containing blood stained clothes and blood sample of the injured which were taken into possession vide seizure memo SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 14 of 37 Ex. PW3/A, bearing his signatures at point A. He further deposed that he met Ajay, brother of the injured, who told the IO/PW9 about the place of occurrence to be the auto stand, Gandhi Vihar, Timarpur. He alongwith Ct. Pankaj went to the spot, however, he neither found any eye witness nor any CCTV camera installed near the spot. He further deposed that on 07.11.2022, he again went to Lok Nayak Hospital with Ct. Pankaj where the injured was opined as fit for statement and the doctor concerned made his endorsement on an application Ex. PW4/B. He inquired about the incident from the injured and recorded the statement of the injured Ex. PW6/A bearing his signature at point B. He made endorsement Ex. PW9/A on the complaint and the said rukka was handed over to Ct. Pankaj for registration of the FIR. He further deposed that after registration of the FIR, Ct. Pankaj handed over the computerized copy of FIR, rukka and certificate u/s 65-B of Indian Evidence Act at near the gate of the PS. PW9 reached at the gate of the PS as the PS was falling on the way to the spot of occurrence as IO was heading towards the spot of occurrence. He recorded the statement of Ct. Pankaj, who was then relieved as Ct. Pankaj was engaged in some other matter. He deposed that thereafter, he reached the spot and met local beat staff HC Mandeep.

In his further examination-in-chief done on 14.10.2024, PW9 IO SI Pradeep Chauhan deposed on the lines of the investigation carried out by him. PW7 HC Mandeep told him that he was aware about the address of the accused and that he could identify SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 15 of 37 the said accused. The accused was apprehended from Dussehra Ground near A-Block, Gandhi Vihar. PW9, the IO of the case has spoken about the disclosure statement of the accused already exhibited as Ex.PW7/A, the arrest and personal search memos of the accused already exhibited as Ex. PW7/E and Ex. PW7/F, about the recovery of the knife, identified by PW9 Ex. P-2 on record, about the sketch of the knife already exhibited as Ex. PW7/B, about the seizure memo of the pullanda containing the knife already exhibited as Ex. PW7/C, site plan of the place of recovery of the knife already exhibited as Ex. PW7/D, about the site plan of the place of occurrence already exhibited as Ex. PW6/B. PW9 has further stated that the doctor gave the opinion about the nature of the injury as grievous.

In the cross-examination, PW9 has stated that he did not record the statement of the brother of the injured namely Ajay as he was not the eye-witness to the incident in question. PW9 has further stated that the public persons were present at Dussehra Ground. By way of volunteer, PW9 has stated that the accused started making hue and cry and therefore, he was taken to the police station. PW9 has further stated that no photography or videography was done at the time of recovery of the weapon of offence and that no independent public witness was joined in the investigation, at the time of the recovery of the knife. PW9 has denied the suggestion that knife was planted upon the accused with a view to falsely implicate him.

SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 16 of 37 DROPPING OF THE WITNESSES BY THE LD. ADDL. PP FOR THE STATE

21.Vide his separate statement recorded on 29.05.2024, the ld. Addl. PP for the State dropped PW Inspector Shrichand from the list of witnesses as he merely collected the FSL result and filed the supplementary charge sheet. PW Ct. Surendra was also dropped as the accused admitted the FSL result under Section 294 of the Cr.P.C..

ADMISSION OF DOCUMENTS UNDER SECTION 294 OF Cr.P.C.

22.Vide separate statement of the accused recorded on 29.05.2024, the accused Lakshay @ Lucky admitted the FSL report dated 27.04.2023 as Ex. AD-1 and the allelic data dated 27.04.2023 as Ex. AD-2.

STATEMENT OF THE ACCUSED U/S 313 OF THE Cr.P.C.

23.After the conclusion of the evidence on behalf of the prosecution, the statement of the accused Lakshay @ Lucky was recorded u/s 313 of the Cr.P.C.. The accused, in his statement u/s 313 of the Cr.P.C., denied all the incriminating evidence put to him and took the plea that he has been falsely implicated in the present case.

DEFENCE EVIDENCE

24.No evidence in defence has been led by the accused.

FINAL ARGUMENTS

25.During the course of arguments, ld. Addl. PP for the State has argued that the prosecution has been able to prove the guilt of the accused u/s 307 of the IPC beyond any reasonable doubt by the SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 17 of 37 aid of the testimony of the complainant PW6 who is the injured himself coupled with the testimony of the medical witnesses PW4 Dr. Jony Kumar and PW5 Dr. Santosh Kumar Gupta who proved on record the MLC of the injured as Ex. PW4/A. It has been further argued that concerned doctor gave the opinion on the MLC of the injured as 'grievous' and the weapon of offence i.e. the knife Ex. P-2 has been identified by the injured PW6 Vijay, by the IO of the case PW9 SI Pradeep Chauhan. It has been further argued that as per the MLC and as per the testimony of PW4 Dr. Jony Kumar, the intestines were protruding from the injury and the injured had to be operated upon for his injury. It has been further argued that the ferocity of the attack is visible from the MLC and sufficient in itself to bring the guilt of the accused within the fore-corners of Section 307 of IPC.

26.Whereas, on the other hand, ld. Counsel for the accused has argued that at the most, even as per the case of the prosecution, Section 308 of the IPC is made out and Section 307 of the IPC is not made out. It has been further argued that there are contradictions in the testimonies of injured PW6 who stated in his examination in chief recorded before the court on 29.05.2024 that the accused started trying to hurt him with cigarette butt by touching the same on his temple but the above said part of his statement has not been mentioned in the memorandum of statement Ex. PW6/A on record, on the basis of which, the FIR in question has been lodged. It has been further argued that the stabbing was done by the accused only once and therefore, the SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 18 of 37 ingredients of Section 307 of the IPC are not fulfilled. It has been further argued that the auto driver in which the injured was taken to the hospital has not been examined by the prosecution. It has been further argued that there are no pubic witnesses to the recovery of the knife i.e. the weapon of offence despite the availability of the same. It has been further argued that at the most Section 324 of the IPC is made out. It has been further argued that the name of the auto driver in which the injured was taken to the hospital has also not been disclosed. It has been prayed that either the accused be exonerated of the charges u/s 307 of the IPC or the accused be convicted either u/s 324 of the IPC or u/s 308 of the IPC.

27.I have carefully gone through the entire material available on record and heard the submissions of the ld. Counsel for the accused Lakshay @ Lucky and that of the ld. Addl. PP for the State.

ANALYSIS AND FINDINGS OCULAR EVIDENCE OF THE COMPLAINANT/ INJURED

28.In the case in hand, the ocular evidence of the complainant/ injured Sh. Vijay, who has been examined by the prosecution as PW6 is there on record. The material aspects of the examination- in-chief and even that of the cross-examination of PW6, have already been discussed hereinabove.

29.The question, as to how, the ocular testimony of the witnesses has to be appreciated by a court has been discussed in detail in the judgment titled as Shahaja @ Shahajan Ismail Mohd. Shaikh SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 19 of 37 Vs. State of Haryana cited as 2022 Live Law (SC) 596, relied upon by the ld. Addl. PP for the State. In the said judgment, the Hon'ble Apex court of the Land has summarized in brief the principles governing the appreciation of ocular evidence in para no. 27 thereof as under:-

" 27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 20 of 37 rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 21 of 37 witness is giving a truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. "

30. The weight to be attached to the testimony of an injured witness has been described in detail by the Hon'ble Supreme Court of India in the matter titled as Abdul Sayeed Vs. State of Madhya Pradesh cited as (2010)10 SCC 259, wherein, it has been observed as under:-

" 26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC

673).

28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 22 of 37 want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. "

31. In the light of the ratio of the above stated judgment, it has to be seen that the complainant/ injured Sh. Vijay PW6 has fully corroborated his version as contained in his memorandum of statement Ex. PW6/A on record. PW6 has categorically stated that it was the accused Lakshay @ Lucky who took out a knife from his person and gave a stab wound in his abdomen, due to which, intestines protruded from the abdomen and after that the accused fled away from the spot. PW6 tied gamchha over his wound for stopping the bleeding and thereafter, he rushed towards Gandhi Vihar Police Post and when he reached near the gate of the said police post, one auto driver who was known to him, met him and took him to Durga Hospital near Batra Cinema. The concerned doctor stated that his condition was critical and he was advised to be taken to trauma centre. PW6 gave a call to his brother Ajay and he was taken to trauma center by his brother Ajay. The site plan was prepared at the instance of the injured PW6 and the same has been exhibited as Ex. PW6/B.

32. During the course of arguments, ld. Counsel for the accused has vehemently argued that PW6 has improved over his version when he was examined in the court because he stated that on the day of the incident at about 08:30 PM, when he was waiting for passengers at Gandhi Vihar, the accused, who was correctly identified by PW6 came there and first of all, he tried to hurt him SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 23 of 37 with cigarette butt by touching it on his temple but the above said fact has not been mentioned in his memorandum of statement Ex. PW6/A on record on the basis of which, the FIR in question was lodged.

33. It is true that the above said version of hurting the injured with the cigarette butt on his temple by the accused has not been stated by the injured in his statement Ex. PW6/A on record but it has to be seen that in the authority titled as Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Haryana cited as 2022 Live Law (SC) 596, it has been categorically observed that a witness is not expected to possess a photographic memory and to recall the details of an incident on account of lapse of time or on account of the fact that the injured was in a state of shock and trauma. The date of incident in the present case was 06.11.2022 but the testimony of PW6 was recorded on 29.05.2024 i.e. after a gap of one and a half years approximately. PW6 has categorically stated in his examination-in-chief, that he was not remembering the year of the incident on account of lapse of time but when he was put a leading question by the ld. Addl. PP for the State, then, he categorically admitted that the year of the incident was 2022. PW6 categorically identified the clothes worn by him at the time of the incident exhibited as Ex. P-1 and the knife which was the weapon of offence as Ex. P-2.

34. Even in the cross-examination, the injured PW6 has categorically clarified that there were no CCTV cameras at or near the spot and there was no opportunity for him for raising the alarm at the time SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 24 of 37 of putting the burnt cigarette on his temple as the accused immediately stabbed him with knife.

35. It has to be seen that the Hon'ble Apex Court of the Land in the judgment titled as V.K. Mishra & Anr Vs. State of Uttarakhand & Anr. Crl. Appeal no. 1247 of 2012 decided on 28.07.2015 has observed as under:-

36. " 12. FIR is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR. Complaint was lodged within few hours after the tragic event. PW-1 has lost his young daughter just married before six weeks in unnatural circumstances. Death of a daughter within few days of the marriage, the effect on the mind of the father-PW1 cannot be measured by any yardstick. While lodging the report, PW-1 must have been in great shock and mentally disturbed. Because of death of his young daughter being grief stricken, it may not have occurred to PW-1 to narrate all the details of payment of money and the dowry harassment meted out to his daughter. Unless there are indications of fabrication, prosecution version cannot be doubted, merely on the ground that FIR does not contain the details. "

37. The above stated judgment categorically states that FIR is not supposed to contain all the details of the case of the prosecution and it is sufficient, if the broad facts of the prosecution case are stated in the FIR. In the case in hand as well, I am of the opinion that the complainant PW6, at whose instance, the FIR has been lodged has broadly and categorically stated about the incident of stabbing in the memorandum of statement Ex. PW6/A on record.

38. Going by the ratio of the above stated judgments, I am of the opinion that non-mentioning of the date of incident in his examination-in-chief and non-mentioning of the fact of hurting the injured by cigarette butt on his temple by the accused in his SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 25 of 37 memorandum of statement Ex. PW6/A are not going to affect the case of the prosecution at all.

39. PW6 in the cross-examination has categorically stated that the accused and his family members were known to him and there was no money transaction in between him and the accused. To my mind, the testimony of PW6 which is corroborated by the medical evidence led by PW4 Dr. Jony Kumar and PW5 Dr. Santosh Kumar Gupta is trustworthy, reliable, confidence inspiring. This court does not find any reason to disbelieve the testimony of the injured PW1 so far as the incident in question, the identification of the accused and the identification of the case property are concerned.

IDENTITY AND PRESENCE OF THE ACCUSED

40. The identity and presence of the accused are itself proved by the testimony of the injured PW6 himself. PW6, in his cross-

examination, has categorically stated that the accused used to drive auto prior to the incident and the family members of the accused are known to him. PW6 was also knowing the address of the accused. The MLC bearing no. 2618/2022 of the injured PW6 Ex. PW4/A on record specifically states the history of stab injury on 06.11.2022 around 08:30 PM near Gandhi Vihar as told by Ajay Kumar, the brother of the injured. The MLC corroborates the version of the injured and the prosecution to the effect that the injured was brought to the Trauma Center i.e. Lok Nayak Hospital by his brother Ajay Kumar. PW6 in the cross- examination has stated that he did not tell the name of the SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 26 of 37 accused to the doctor as he was semi-conscious in the hospital. As such, going by the testimony of the injured PW6 by the testimony of the IO of the case PW9 SI Pradeep Chauhan and by the testimony of the beat officer PW7 HC Mandeep, I have no hesitation to hold that the identity of the accused and the presence of the accused on the spot of the crime stand proved.

MEDICAL WITNESSES

41. PW4 Dr. Jony Kumar has categorically stated that on 06.11.2022, the injured Vijay Kumar was referred to surgery department from casualty with MLC of the patient/ injured. PW4 has further stated that the injured was having injury in his abdomen with bowel injury and haemoperitoneum with hypovolemic shock and that lacerated bowel was eviscerated through abdominal injury. PW4 was operated for injury but the injured was not fit for giving the statement on 06.11.2022 and in this regard, the Junior Resident Doctor under his supervision had made endorsment on the MLC of the injured Ex. PW4/A from portion A to A-1.

42. PW4 has further stated that he had opined the nature of the injury as 'grievous' and he had made endorsement on the MLC from portion B to B-1 in this regard. PW4 has further stated that on 06.11.2022 at about 09:05 AM, the injured was declared fit for giving the statement.

43. PW5 Dr. Santosh Kumar Gupta has also categorically mentioned that on 06.11.2022, he was on duty in casualty at Sushruta Trauma Center and the injured Vijay Kumar was brought to casualty at about 08:55 PM with the history of stab injury at SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 27 of 37 about 08:30 PM near Gandhi Vihar. PW5 has further stated that the said patient was brought to casualty by his brother namely Ajay and the said patient was having incised wound approximately 5 cm x 2 cm with small bowel loops protruded outside below umblicus in hypogastrium area. The protruded bowel loops was having lacerated bowel loops at two sites with mucosa protruded at a distance of 3 cm from each other. PW5 has identified the signatures of his junior Resident Doctor Pooja on MLC Ex. PW4/A.

44. Testimonies of above said two medical witnesses PW4 and PW5, thus, categorically prove the MLC, the nature of the injury as grievous and the ferocity of the attack on the person of the injured at the hands of the accused. In the cross-examination of the above said two medical witnesses, no material contradiction has come out. As such, I am of the opinion that the medical evidence in the form of PW4 and PW5 has categorically proved the version as stated by PW6 injured himself.

TESTIMONIES OF POLICE WITNESSES INCLUDING THE IO

45.In the case in hand, the prosecution has examined W/HC Bhajan Kaur as PW1, the duty officer who had recorded the FIR; PW2 HC Ashwani, the MHC(M) posted with PS Timarpur; PW3 Ct. Pankaj, who had joined investigation with the IO on 06.11.2022; PW7 HC Mandeep, the beat officer at Gandhi Vihar and PW9 IO SI Pradeep Chauhan.

SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 28 of 37

46.PW1 has proved on record the FIR Ex. PW1/C, the endorsement on the rukka Ex. PW1/B and the rukka sent by SI Pradeep Chauhan as Ex. PW1/A. PW2 has testified about the depositing of the two sealed pullandas by SI Pradeep Chauhan on 06.11.2022, the sending of the exhibits to FSL and this witness has stated that no tampering took place with the case property, till the time, the same remained, in his custody. PW3 Ct. Pankaj has spoken about the investigation done by the IO in his presence. PW7 HC Mandeep has proved on record the sketch of the knife which is the weapon of offence as Ex. PW7/B, the seizure memo of the knife as Ex. PW7/C, the site plan of the place of recovery as Ex. PW7/D, the arrest and personal search memo of the accused as Ex. PW7/E and 7/F. PW7 even in the cross- examination has stuck to the point that accused was apprehended from Dussehra Ground at about 01:30 PM but no videography or photography was done at the time of the recovery of the knife. PW9 is IO SI Pradeep Chauhan and this witness has deposed about the investigation done by him on the lines of the charge sheet. PW9 has been cross-examined in detail but even in the cross-examination, the testimony of PW9 has not been shaken.

47.From the testimonies of the aforesaid police witnesses, I am of the opinion that the prosecution has been able to prove the investigation done by the IO including the documents prepared in the present case during the course of investigation. The testimonies of the police officials, in the opinion of this court, has not been shaken, even during their cross-examination. As such, I SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 29 of 37 am of the opinion that the testimonies of the police officials is in conformity with the ocular version complainant PW6 and the medical witnesses PW4 and PW5.

IDENTITY OF THE CASE PROPERTY AND WEAPON OF OFFENCE

48.The complainant, PW6 has clearly identified the clothes worn by him at the time of the incident i.e. blood stained jeans pant, blood stained vest, blood stained shirt and blood stained underwear exhibited as Ex. P-1. PW6 has also categorically identified the weapon of offence i.e. Ex. P-2. PW9 IO of the case has also identified the weapon of offence. PW7 HC Mandeep has also categorically deposed about the recovery of the weapon of offence at the instance of the accused and about the sketch of the knife Ex. PW7/B and about the seizure memo of the knife as Ex. PW7/C. PW3 Ct. Pankaj has deposed about the seizure memo Ex. PW3/A in respect of the two pullandas in sealed condition which were handed over to the IO by the concerned doctor.

49.The testimonies of PW3, PW6, PW7 and PW9, in the opinion of this court are sufficient in itself to prove on record the identity of the case property i.e. of the clothes worn by the injured at the time of the incident Ex. P-1 and the identity of the knife i.e. of the weapon of offence Ex. P-2 on record.

MOTIVE

50.During the course of arguments, ld. Counsel for the accused has argued that there was no motive to give the stab injury to the injured on the part of the accused.

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51.The memorandum of statement Ex. PW6/A, on the basis of which, the FIR was lodged, states that the accused Lakshay @ Lucky was having motive as the accused had picked up a quarrel with the injured prior to the incident dated 06.11.2022 but when PW6 was examined in the court, the incident of prior quarrelling has not been stated by the complainant/ injured PW6. However, it has to be seen that in the case in hand, direct evidence of the injured was available and when direct evidence of an eye-witness is available, then, motive loses all its importance. In the case titled as State of UP Vs. Kishanpal & Ors. decided on 08.08.2008 arising out of Criminal Appeal no. 936/2003, in para no. 18 thereof, Hon'ble Supreme Court of India has observed as under:-

".....It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. ....."

52. The Hon'ble Supreme Court of India in the matter titled as Dhanaj Singh @ Shera & Ors. Vs. State of Punjab cited as AIR 2004 SC 1920 decided on 10.03.2004, in para no. 7 thereof, has held as under:-

".... when the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on the part of the IO cannot affect credibility of the prosecution version."

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53.Keeping in view the ratio of the above stated authorities, I am of the opinion that even the absence of motive is not going to affect the case of the prosecution as the direct evidence of the injured coupled with the medical evidence is available and the same is trustworthy, reliable and confidence inspiring, in the opinion of this court.

INGREDIENTS OF THE OFFENCE

54.The accused has been charged with the offence punishable under Section 307 of the IPC. The necessary ingredients of Section 307 of the IPC are as follows:-

i. That the accused did an act;

ii. that the act was done with the intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death or that the accused attempted to cause such death by doing an act known to be him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death; and iii. that the accused had no excuse for incurring the risk of causing such death or injury

55.During the course of arguments, ld. Counsel for the accused has vehemently argued that only a single stab wound was given and as such, either Section 308 of the IPC or Section 324 of the IPC is made out against the accused but Section 307 of the IPC is not made out.

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56.It is true that a single stab wound was given but the ferocity of the attack is apparent from the testimonies of PW4 Dr. Jony Kumar and PW5 Dr. Santosh Kumar Gupta. As per PW4, the injured was not fit for giving the statement on 06.11.2022 and his statement was recorded by the IO only on 07.11.2022. As per PW4, the injured had to be operated upon for his injuries. The MLC no. 2618/2022 Ex. PW4/A has already been proved by PW4 and PW5. The injured was having incised wound approximately 5 cm X 2 cm with small bowel loops protruded outside below umbilicus in hypogastrium area and protruded bowel loop lacerated at two sides at a distance of 3 cm from each other. The prosecution witness PW4 has categorically opined that the nature of the injury was grievous.

57.Going by the testimony of PW4 and PW5 and the MLC Ex. PW4/A, I am of the opinion that the necessary ingredients of Section 307 of the IPC are being fulfilled. This court does not find any weight in the submissions of the ld. Counsel for the accused to the effect that Section 308 of the IPC or Section 324 of the IPC are made out.

FORENSIC EVIDENCE

58.The FSL report Ex. AD-1 was admitted by the accused Lakshay @ Lucky together with the allelic data dated 27.04.2023 exhibited as Ex. AD-2 in his statement recorded u/s 294 of the Cr.P.C. on 29.05.2024. As per the FSL report, the blood sample of the injured/ victim was found to be matching with the clothes worn by the injured i.e. with his jeans pants, baniyan/ vest and SC 82/2023 State Vs. Lakshay @ Lucky FIR no. 353/2022 PS Timarpur Page no. 33 of 37 shirt. However, the DNA from the source of knife could not be isolated due to degradation/ inhibition. As such, I am of the opinion that even the clothes worn by the injured Ex. P-1 on record were found to be having blood matching with the blood sample of the victim, in corroboration with the case of the prosecution.

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Delhi District Court

State vs Lakshay@Lucky on 15 February, 2025