Delhi District Court
State vs . on 29 August, 2022
IN THE COURT OF SHRI ARUL VARMA, ASJ04 AND
SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS: NEW
DELHI
CNR No. DLSC010000942012
SC No. 1719/2011
FIR No. 304/2011
P.S. Lajpat Nagar
State
Vs.
1. Amritpal Thukral
S/o Late Sh. K.K Thukral,
2. Ashish Thukral
S/o Amritpal Thukral
Both R/o C219, Lajpat NagarIst
3. Rohit Anand
S/o Late Sh. Sanjay Anand
R/o H.No 15/11, Pant Nagar, Jangpura
Extension, New Delhi
4. Saurabh Gaba,
S/o Sh. Rakesh Gaba
R/o A191, Lajpat NagarIst
New Delhi.
........ Accused persons
Date of Institution : 15.02.2012
Date of reserving the Judgment : 18.08.2022
Date of Judgment : 29.08.2022
FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 1/31
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged by the complainant that on 15.12.2011 at 10:30 PM infront of House no. C219 Lajpat NagarI New Delhi, while Complainant alongwith his brother Shivan Thukral returned from the said Baba Mandir Defence Colony New Delhi after offering prayers and were parking their vehicle, accused Amritpal Thukral stationed his vehicle no. DL ICG 2345 Behind the car of complainant in such a manner that the complainant was not in a position to take out his car and thereby blocked the way of the complainant and his brother. Further accused all the accused persons namely Amritpal, Ashish Thukural, Rohit Anand and Saurabh Gaba, started abusing and beating the complainant Sh. Rahul Thukral and his brother Sh. Shivan Thukral and during the course of beating accused Amritpal picked up a brick and hit the same on the head of the brother of complainant but somehow the brick hit on his shoulder. Both the complainant and his brother sustained injuries. On the same day, the accused persons hit the rear screen and also caused dents on the car of the complainant by bricks due to which the rear window screen of the car was broken and FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 2/31 damages caused to the complainant was more than Rs. 50/ The accused were arrested in this case. Charge sheet was prepared and filed in the Court against the accused persons for the offence under Section 323/341/427 r/w 34 IPC. Later on Section 308 IPC was added vide order on charge dated 29.11.2013.
2. The copy of the charge sheet was supplied to the accused by Ld. MM concerned. The case was committed to the court of Sessions by Ld. MM on 15.02.2012.
CHARGES FRAMED QUA THE ACCUSED
3. Charges under section U/s 323/341/427/308 r/w 34 IPC were framed qua the accused persons, to which they pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
4. In the trial, the prosecution in support of its case, examined eleven witnesses, the succinct testimonies whereof are as follows:
5. PW1 Dr. Ankur was Senior Resident Radiodiagnosis Department, AIIMS Hospital, Delhi. He proved the XRay Plate No. 27524 dated 15.12.2011 Ex. PW1/A. He identified the handwriting and signatures of Dr. Dimpi Sinha as she was his colleague and was working together. During cross examination He has deposed that he had not seen the Xray FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 3/31 Plate regarding dislocation of shoulder in this matter as he had only come to attest the signature of Dr. Dimpy Sinha who had left the hospital in the year 2014 and he had deposed on her behalf. He further deposed that he was not authorized to comment on the xray plate and to opine about the nature of dislocation. Other formal suggestions were denied by him as an incorrect.
6. PW2 Sh. Rahul Thukral has deposed that on 15.12.2011, he alongwith his younger brother Sh. Shivan Thukral had come back home by their Indica Car from Sai Baba Mandir, Defence Colony and when they were parking their said car in from of the house accused Amrit Pal removed his car bearing no. DL1CG2345 which was already parked in front of their neighbour house and accused intentionally reversed his car back so that they were unable to park their car properly and during that accused Amrit Pal hit their car from the front side and parked his car beside their's and when they asked as to why accused Amritpal did not let their car park infront of their house, accused started abusing them and threatened them by saying "Ghar chor kar chale jao nahi to jaan se markar nikal dunga". He further deposed that accused started beating them. Then the son of accused Amrit Pal namely Ashish Thukral alongwith two other persons namely Sourav Gaba and Rohit Anand FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 4/31 came there in a Wagon R car bearing number DL3CaZ4114. They all pushed him(PW2) and fell him down and accused Amrit Pal picked up a stone/brick lying there and hit it on the shoulder of the brother of PW
2. The accused persons started beating his brother and shoulder of his brother got dislocated due to brick blow, his spectacles were broken and blood oozed out from his right eye. He also deposed that he was also beaten by all accused persons and accused Ashish Thukral picked up a brick and strike the right real window screen of his car and the same got broken. The car was also damaged/dented at different places by accused Amrit Pal and Ashish Thukral by means of bricks. He dialed 100 number, police visited the spot and then PW2 and his brother was taken to the AIIMS hospital, Trauma Centre, doctor advised him to take his brother to main building AIIMS hospital for eye treatment. He was taken to Doctor Rajender Prasad, Eye Centre, AIIMS. PW2 further deposed that on 16.12.2011 he went to police station, Lajpat Nagar and had given a hand written complaint at about 05:35 AM which was exhibited as Ex. PW2/A. On the same day IO HC Vinesh kumar alongwith HC Naresh reached their place and prepared the site plan which was exhibited as Ex. PW2/B. He also produced 2 pieces of brick, one bearing the impression of alphabet F, through which the window pane of car was broken and FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 5/31 dents were caused, other piece of brick bearing impression of alphabet F with the above line of letter F was half broken. The same were taken to possession by the IO and exhibited as Ex. PW2/C. Thereafter, at about 08/08:30 PM accused AmritPal Thukral and Ashish Thukral were apprehended from the stairs of their house and arrested, vide arrest memo exhibited as Ex. PW2/D and PW2/E and personal search was conducted and was exhibited as Ex. Pw2/F and PW2/G. IO recorded his (PW2) statement in this regard. On 17.12.2011, the broken specs of his brother was handed over to the IO and the same was taken into possession and exhibited as Ex. PW2/L. PW2 deposed that on 27.07.2012, he brought the copy of treatment slip of RP Eye Centre, AIIMS on Judicial record as the same was not filed by the IO on record. On 24.12.2011, PW2 Accompanied HC Vinesh and CT. Mangeram to C Block, Railway Gate, from where, near Railway Gate accused Rohit Anand and Sourav Gaba were apprehended by police. IO arrested them vide arrest memo exhibited as Ex. PW2/H and PW2/I and conducted their personal search vide personal search memos exhibited as Ex. PW2/J and PW2/K. The IO recorded his statement in this regard. Both accused persons admitted the incident before HC Vinesh and stated that they had arrived in the car belonging to Sumit Bhatia bearing number FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 6/31 DL3CAZ4114, alongwith Ashish Thukral. PW2 also deposed that he had also given the photographs of the car, of accused Amritpal, having dent which was caused by hitting his car to car of PW2. But later on the dent was removed from the car by accused. The same photograph was exhibited as Ex. PW2/M and the photograph after removing dent was exhibited as Ex. PW2/N. After incident accused persons started intimidating and threatening them. On 28.02.2012, when PW2 left for his work place ie Patiala House Court, the accused persons were raising Jangla in front of his ground floor office which was objected to by his father but the accused persons intimidated his father and asked him to withdraw the complaint otherwise they would get him eliminated. His father made a written complaint to police station this regard. On 06.04.2012, accused Amrit Pal and Ashish Thukral again intimidated him and asked him to withdraw the complaint. On 12.05.2012, he had given another complaint to ACP, DCP & CP, the copy of which was exhibited as Ex. PW2/P. .
7. PW3 Sh. Shivan Thukral deposed that on 15.12.2011, he alongwith his brother namely Rahul Thukral had come back home at about 10/10:30 PM by their Indica Car bearing number DL 3CY 6586 from Sai Baba Mandir, Defence Colony and they were parking their car FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 7/31 infront of their house. When his uncle (accused Amrit Pal Thukral) who also stays in the same building ie c219, 2 nd floor, started removing his car bearing number DL 1CG 2345 which was already parked in front of the house of neighbour. He reversed the car toward back side and blocked the movement of car of PW3. PW3 further deposed that the car was being driven by his brother namely Rahul Thukral, and he was unable to move the car. While reversing his car accused hit his car on the front portion of their car due to which their car got dented. When brother of PW3 asked as to why the accused was not allowing them to park their car, accused started abusing them in filthy language and said "Ghar Chor kar chale jao warna jaan se maarke nikal denge." he started beating his brother Rahul. Then the son of accused Amrit Pal namely Ashish Pal also came with his two friends namely Saurabh Gaba and one more fair complexion guy in his WagonR car and all of them caught hold of him and accused Amrit Pal picked a brick and hit towards the head of PW3, however he moved his head due to which the said brick hit on his shoulder instead of his head. He sustained injuries on his left shoulder. He was beaten by the legs and punches by all accused persons due to which specs/glass of his right eye got broken and he sustained injuries between his right eye FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 8/31 brows and the eye. PW3 again deposed that all accused persons started beating his brother Rahul who also sustained injuries and blood oozed from his mouth. Accused Ashish Thukral hit a brick on the right window pane of their car due to which the screen was broken and accused Amrit Pal also hit the brick pieces on their car. Thereafter they dialed 100 number PCR van arrived and both PW3 and his brother was taken to the hospital AIIMS, Trauma Centre, where they got treated. IO recorded their statement in this regard. It was further deposed that on 06.04.2012 between 2:00 to 2:30 PM, PW3 was going home. When he reached near Fun & Frolic Shop/Maharaja Motors, accused Amrit pal asked him to stop by saying "abe ruk abe ruk kahan jaa rha hai" he got scared and immediately went up stairs to him home and told about the incident to his brother Rahul. PW3 deposed that his brother and mother were going out of station on the same day and he got misapprehended some mishappening on the part of accused persons. He reported the matter to the police by way of complaint.
8. PW4 HC Ram Pratap, No 2042/SE deposed that on 16.12.2011, he was posted as duty officer in PS Lajpat Nagar from 04:00 PM to 12:00 Night. On that day at about 04:00 PM, he received rukka to HC Vinesh kumar. On the basis of rukka he got typed the FIR through Computer FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 9/31 operator and the FIR No. 304/11 was exhibited as EX. PW4/A. He also endorsed rukka. His endorsement was exhibited as Ex. PW4/B. After registration of the case, FIR and rukka was handed over to HC Naresh to deliver the same to IO/HC Vinesh
9. PW5 Sh. Sumit Bhatia, deposed that on 15.12.2011, at around 09:00 PM he was present in a Fitness Zone gym at Bblock Lajpat Nagar. At around 10:00 PM Ashish came to him and asked for his car bearing number DL 3CAZ 4114. PW5 gave his car to him. After around half an hour, he came back in the gym and returned his(PW5) car to him.
10.PW6 Sh. Rajinder Singh, deposed that he was working in AIIMS Trauma Centre as Record Clerk since 2006. That day he had brought record of MLC bearing no. 289346 and 289347 dated 15.12.2011 of patient Shivam Thukral and Rahul Thukral respectively. The said MLCs were prepared by doctors Dr. Tanvi Kaushal and Dr. Vijay Kumar Kashyap respectively. He identified their signatures on MLCs which were exhibited as Ex. PW6/A and PW6/B.
11.PW7 ASI Naresh Kumar deposed that on 16.12.2011, he was posted as HC at PS Lajpat Nagar. On that day Duty Officer, PS Lajpat Nagar had given him original rukka and computerized copy of FIR. He collected the same and went to C219, Lajpat NagarI and handed over FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 10/31 the same to IO HC Vinesh Kumar. Complainant Rahul Thukral was present there and had show two pieces of bricks, one brick containing letter F. IO seized both the pieces of bricks vide seizure memo already exhibited as Ex.PW2/C. Complainant Rahul Thukral also produced a broken spectacles. IO seized the same vide seizure memo already exhibited as Ex. PW2/L. IO arrested both the accused persons namely Amrit Pal Thukral and Ashish Thukral from the spot.
12.PW8 Dr. Tanvi Kaushal deposed that on 15.12.2011, she was working as Junior Resident in AIIIMS Trauma Centre. On that day, she had examined patient namely Shivan Thukarl. It was a case of assault. She deposed that patient vitals were stable. Glasglow Coma Scale was normal which signified that the patient was conscious and oriented. Had had laceration on right eyelid, bruises on nose and small cut on right cheek as mentioned by her on MLC. It was also deposed that the injury was caused by blunt object.
13.PW9 Dr. Laxman Choudhary deposed that he had been deputed by his faculty incharge Dr. Vijay vide his letter Ex. PW9/A. He had seen the MLC no 289347 already exhibited as Ex. PW6/B. It had been prepared by Dr. Vijay Kumar Kashyap who had left the service of the hospital and as per record of MLC Dr. Vijay Kashyap had examined FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 11/31 one Rahul Thukral on 15.12.2011 in casualty, with the history of assualt. Dr. Vijay Kashyap observed that the injured Rahul Thukral had suffered contusion on upper lip and injuries were opined as simple blunt in nature.
14. PW10 ASI Vinesh Kumar deposed that on 15.12.2011, he was posted as HC at PS Lajpat Nagar. On that day at about 11:00 PM, he received DD no. 44A, exhibited as Ex. PW2/DXI regarding scuffle at D204, Lajpat NagarI. He alongwith Ct. Prem Punit reached there but none met them. On inquiry it came to their knowledge that injured had been shifted to AIIMS Trauma Centre. He further deposed that, leaving Constable at the spot, he reached AIIMS Trauma Centre, collected the MLC of Rahul Thukral and Shivan Thukral. The injured were not present in the hospital. Then he returned to PS and kept the DD pending. It was further deposed that on 16.12.2011, complainant Rahul Thukral came in PS and gave a written complaint, exhibited as Ex. PW2/A. He inquired from the complainant and prepared tehrir exhibited as Ex. PW10/A, FIR got registered and investigation was marked to him. Site plan was prepared at the instance of complainant. Two pieces of brick was shown to him and deposed that the piece of brick containing letter F was hit on the window of the car of FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 12/31 complainant and the second piece was hit on Shivan Thukral. Both pieces of brick was seized by ASI/PW10 exhibited as Ex. PW2/C after sealing with seal of VK. Photographs were taken of damage Indica car of complainant. PW10 further deposed that he apprehended accused Amrit Pal Thukral and Ashish Thukral. They were then admitted to police bail. Statement u/s 161 Cr.PC of Rahul Thukral was recorded. On 17.12.2011 Rahul Thukral came in PS and produced one spectacle of right side of glass of which was broken. His statement was recorded and the case property was deposited in Malkhana. On 19.12.2011, statement u/s 161 Cr.PC of Shivan Thukral was recorded. It was also deposed that on 24.12.2011 accused Rohit Anand and Saurab Gaba were arrested from C Block, Lajpat Nagar at the instance of Rahul Thukral. Statement of complainant got recorded and accused persons admitted to police bail. Injury of Shivan Thukral was opined as grievous with blunt object as per MLC. Hence Section 325 IPC was added. Notice u/s 133 MV Act was given to the owner of Car no. DL3CAZ 4114 and then PW10 ASI Vinesh Kumar joined the investigation with Sumit Bhatia and recorded his statement u/s 161 Cr.PC and after completion of investigation, charge sheet was filed.
15.PW11 Surender Kumar deposed that he was working as MRT in the FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 13/31 RP Centre for Ophthalmic Sciences, New Delhi, AIIMS. He brought the eye treatment record of injured Shivan Thukral s/o Sh. Anil Kumar Thukral. As per hospital record, the injured was treated in the emergency department on 16.12.2011 and prepared his C. No. 009124/2011.The same was placed on judicial record exhibited as Ex. PW2/Q. STATEMENT OF ACCUSED
16.Accused was examined u/s 313 Cr.PC. In their defence, all four accused persons stated that all the allegations which are levelled against them are incorrect as PW2 having legal knowledge and influence, got registered a false and fabricated case against them. They did not lead any evidence in support of them.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
17. Sh. WasiUr Rahman, Ld. Addl. PP for the State assisted by Ld. Counsel for complainant Sh. H.S Sharma, submitted that all the prosecution witnesses have supported the case of the prosecution. It was submitted that PW2 Rahul Thukral was examined in the year 2014 and crossexamined in the year 2017, and PW3 Shivan Thukral was examined in the year 2015 and crossexamined in the year 2018, thus, there were bound to be certain discrepancies in their statements. It FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 14/31 was submitted that such discrepancies, if any, do not go to the root of the matter, and notwithstanding such discrepancies or inconsistencies, the prosecution has been cogently able to establish its case.
18. It was submitted by Ld. Counsel for complainant that the presence of car bearing registration number DL3CAZ4114 at the spot has been proved from the testimony of the owner of the car PW5 Sumit Bhatia, who averred that the car was taken by accused Ashish. It was further submitted that false implication is ruled out inasmuch as in his cross examination dated 20.11.2017, PW2 deposed that from his side there was no dispute regarding occupation and possession of property. It was further pointed out that the 100 number call as recorded vide DD no 48A was not from the complainant, which further strengthens the bonafides of the prosecution. Ld. Counsel for the complainant ably took the Court through the entire sequence of events to contend that all the evidences filed by the prosecution, were contemporaneous and sans any concoction. It was submitted that soon after the PCR call, the victim was taken to the hospital, and the medical evidence brought on record is consistent with the ocular account of the eye witnesses.
19. Lastly, it was submitted by the State that the defence of the accused is one of total denial, as is explicit from a perusal of their Section 313 FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 15/31 Cr.PC statements. The accused had an option to put a plausible denial however, they chose not to do so and omitted to even spell out the details of civil case qua property issues filed by the complainant Rahul Thukral. Ld. Counsel for complainant placed reliance on;
1. Anurag & Anr Vs. State C.R.L No. 126/2001,
2. Sheo Shankar Singh & Ors Vs. State of Jharkhand & Anr. Crl Apeal No. 791792 of 2005,
3. Abdul Hamid Vs. State (Delhi Admn) Crl. A No 220/1996,
4. Jagdish Vs. The State (Govt of NCT of Delhi) 2006 (1) JCC 404,
5. Sukhchain Singh Vs. State of Haryana & Ors, Criminal Appeal no 57 of 1996,
6. Ramanand Yadav Vs. Prabhu Nath Jha & Ors, Criminal Appeal no. 119121 of 1997,
7. Pale Ram Vs. NCT of Delhi Crl. As 609/1999 & Ors.
8. Vijay Mishra Vs. State of UP Crl Rev. no. 584 of 2022.
20. Per contra, Sh. Manoj Chaudhary, Ld. Counsel for accused submitted that it is incumbent upon the prosecution to establish its case beyond reasonable doubt, and the prosecution has failed to do so in the present matter. Ld. Counsel for accused disputed the very spot of place of incident by contending that the place of incident has been shown as C219, Lajpat NagarI, as per the rukka Ex.PW10/A, whereas as per the DD entry no 44A i.e Ex. PW2/D X1, the place of incident has been mentioned as D204, Jungpura. It was further contended that the prosecution has not been able to connect the crime to the spot in question. No pieces of broken glass of the vehicles, no blood samples, FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 16/31 and no photos of the spot were taken. Thus, Ld. Counsel for accused assailed the veracity of the case of prosecution sans independent corroborative evidence. Ld. Counsel for the accused disputed the injuries by contending that it has nowhere been mentioned in the MLCs of both PW2 and PW3 that the injury was caused by brick. It was submitted that no laceration marks were mentioned on the shoulder of the injured/witness. It was vehemently contended that the name of accused or manner of assault was not mentioned by the victims despite the facts that they were conscious/oriented, as is explicit from the MLC. As far as invocation of Section 308 IPC is concerned, it was submitted that just to add a graver charge, the story of the accused attempting to hit the head of the victim, but hit the shoulder instead, seems to be an introduction, an afterthought. It was brought to the fore that the MLC and other medical reports do not reflect the usage of brick to cause dislocation of shoulder. Moreover, Ld. Counsel submitted that there was no intention of the accused to attempt to cause culpable homicide as allegedly only one brick injury was caused and the accused did not attempt to cause more injuries with the said brick, rather resorted to fist blows.
21. Lastly it was contended that the police did not seize any vehicle nor any RC document and the prosecution to failed to establish that the FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 17/31 damage to the car was caused by bricks. Thus, it was contended that accused ought to be exonerated. Ld. Counsel for accused has placed reliance on;
1. Amar Singh Vs. State Crl Appeal no 335 of 2015
2. Sujit Biswas Vs. State of Assam, Crl Appeal no 1323 of 2011
3. Ghurey Lal Vs. State of UP, Crl Appeal no. 155 of 2006 STATEMENT OF REASONS FOR THE DECISION Allegations qua Section 323/341/34 IPC
22. Analysis of testimony of prosecution witnesses: To establish its version, the prosecution case primarily hinges upon the testimony of the complainant and injured coupled with their MLCs. A perusal of the testimonies of PW2 complainant Rahul Thukral and of PW3 Injured Shivan Thukal reveals that both of them have categorically made consistent statements qua the date, time and place of commission of offence, and also number and names of assailants involved in the perpetration of the offence.
23. It was deposed by the witnesses that on 15.12.2011, at about 10/10:30 PM, after returning from Sai Baba Mandir Defence Colony, they were parking their Indica Car bearing registration number DL3CY6586 in front of their house. It was at this moment that the accused Amrit Pal who was staying in the same building, removed his car bearing FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 18/31 registration number DL1CG2345, already parked in front of the house of a neighbour, and reversed the same, and in the process hit the car of the complainant. Both the witnesses have deposed that accused Amrit Pal abused and threatened them with dire consequences.
24. Both of them also categorically deposed that accused Amrit Pal gave fist blows to Shivan Thukral which resulted in bleeding of the right eye of Shivan Thukral. It was also brought to the fore that the son of accused Amrit Pal namely coaccused Ashish Thukral and two other coaccused namely Saurav Gaba and Rohit Anand also came there in Wagon R car bearing registration number DL3CAZ4114, and all of them together beat the complainant and his brother. The presence of accused Ashish at the spot was also substantiated by PW5 Sumit Bhatia who deposed that around 10:00 PM Ashish had come to him and asked for his car bearing number DL3CAZ4114, and that around half an hour later, the accused returned back the car to him. Ashish was correctly identified by the witness in the Court.
25. The presence of the accused persons at the spot or occurrence of altercation between the parties could not be disproved even after cross examination of the complainant witnesses. Rather, the occurrence of the incident stands established by a perusal of certain contemporaneous FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 19/31 documents. The initial document is DD No. 44A dated 15.12.2011, i.e. Ex. PW2/DX1, which records the factum of 100 no call to PCR at around 10:47 PM qua fight near D204 Jungpura Fatak, Lajpat Nagar. The contents of the said DD entry were also corroborated by PW10 ASI Vinesh Kumar, who deposed that on 15.12.2011 at about 11:00 PM, he received DD no. 44A regarding scuffle at D204 Lajpat NagarI.
26. Even the complainant PW2 deposed that he made a 100 no call and the police came to the spot and took both PW2 Rahul Thukral and PW 3 Shivan Thukral to Trauma Centre, AIIMS Hospital. This fact is also corroborated from the testimony of PW10 ASI Vinesh Kumar who deposed that pursuant to receipt of DD No. 44 A when he and Constable Prem Punit reached at the spot, they did not find anyone, but they were informed that the injured had been shifted to AIIMS Trauma Center by a PCR vehicle. Thereafter, the presence of the victims at AIIMS Trauma Centre further gets corroborated as PW10 had deposed that he had collected the MLC of Rahul Thukral and Shivan Thukral from the said Trauma Centre. The above testimonies of the prosecution witnesses could not be shaken, and the narration of sequence of events i.e. presence at the spot on 15.12.2011 at around 10/10:30 PM, scuffle between the parties, two 100 no calls to PCR by complainant and FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 20/31 another person, and shifting of complainant and injured to AIIMS Trauma Centre, remains uncontroverted. All the four accused were correctly identified by the complainant and injured in the Court, as being their assailants.
27. Medical Evidence: The factum of injuries sustained by the complainant and injured, as evinced from their testimonies and ocular account, gets fortified from the medical evidence on record. PW2 had categorically deposed that the accused had started beating his brother with fists, and his specs were broken and blood oozed out from the right eye of Shivan Thukral. PW3 Shivan Thukral also deposed that all the four accused persons had beaten him by legs and punches due to which specs/glass of his right eye was broken leading to injuries between his right eyebrow and the eye. PW3 further deposed that blood oozed from the injury on the eye. Further, both the witnesses have deposed that they were referred from AIIMS Trauma Centre to Dr. Rajendra Prasad, Eye Centre, AIIMS, for further treatment.
28. The above ocular account is corroborated by a perusal of Ex. PW6/A ie the MLC dated 15.12.2011, which records that around 11:28 PM, the injured was examined and there was a visible injury on the patient Shivan Thukral especially a laceration on right eyelid 0.5cms. FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 21/31
29. Further, Ex. PW2/Q was produced in the evidence in the testimony of PW2 on 21.10.2014. The said exhibit is a photocopy of the original prescription (original prescription was seen and returned) of Rajendra Prasad Centre, for Opthalmic Sciences AIIMS, in which Shivan Thukral was medically examined. The said prescription speaks volumes of the injury caused to the eye and inter alia records that Shivan Thukral suffered laceration 2x4mm and aberration (surrounding laceration 4x6mm) in the eye.
30. The injuries caused to PW2 Rahul Thukral, as narrated by him, resulted in him bleeding from his mouth. The factum of this injury stands corroborated upon perusal of Ex. PW6/B which is MLC dated 15.12.2011, which records that the injury present on the patient was simple in nature and there was contusion on upper lip. Further, both the witnesses had stated that Shivan Thukral was given beatings by the accused persons, and they also gave him punches. The factum of these injuries also stand established from a perusal of Ex. PW6/A ie the MLC which records that the injured Shivan Thukral sustained grievous injuries and there was visible bruise on the nose and a small cut on right cheek. Both the MLCs were proved from the testimony of PW6 Rajender Singh, Record Clerk, AIIMS Trauma Centre, who identified FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 22/31 the signatures of Dr. Tanvi Kaushal and Dr. Vijay Kumar Kashyap, who prepared the MLCs Ex. PW6/A and Ex. PW6/B respectively. Thus, the ocular medical evidence qua the above injuries are wholly consistent with each other.
31. Contradictions and discrepancies: Ld. Counsel for the accused had assailed the veracity of prosecution witnesses, by disputing the very spot of place of incident. It was contended that as per the rukka Ex. PW10/A, place of incident has been shown as C219 Lajpat NagarI whereas as per DD entry no. 44A ie Ex. PW2/DX1, the place of incident has been mentioned as D204 Jungpura Fatak, Lajpat Nagar. In this context it would be apt to peruse the following testimony of PW10, which is held as thus:
32. "Next day, I was handed over an already written complaint by the complainant in the police station at around 5:006:00 am. As per the complaint, the spot was recorded as "C219 in front of Lajpat NagarI". Same spot was mentioned by me in the site plan which was prepared by me at the instance of complainant at around 5 - 6 PM. It is correct that there is no mention of D204 in the site plan. D204 is situated in front of C 219. It is correct that I cannot give any reason for nonmentioning of D204 in the site plan.
33. It is wrong to suggest that since D204 is not situated in front of C219, therefore, the same is not shown in the site plan and I am deposing falsely in this regard. (Voltd. Caller had mentioned house no. D204 upon which DD no. 44A was recorded)".
FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 23/31
34. The above testimony makes its explicit that the address as C219 was written as per the complaint, given by the complainant in the police station. However, as per the person who made the 100 no call, upon which DD no 44 A was recorded, the caller had mentioned that the incident took place near House no. D204. A perusal of Ex. PW2/DX1 reveals that it categorically mentions the place of incident as near D204 Jungpura Fatak, and not at D204 Jungpura Fatak. Thus, the place of incident is clearly not D204 but somewhere near it. In fact, it has come on record from the crossexamination of PW2 that the accused Amrit Pal and his son, and the complainant live in the same building. The address of the accused also, as is forthcoming from a perusal of the bail bonds and the statement made u/s 313 Cr.PC, is C219, Lajpat Nagar. Recoveries of bricks were also effected from the said place. Thus, the place of incident, as correctly averred by the prosecution witness, is the place in front of his house C219, Lajpat Nagar. Thus, on this score, this Court cannot countenance the stance of Ld. Counsel for accused qua dispute regarding place of incident.
35. Ld. Counsel for accused further sought to assail the investigation inasmuch as no pieces of broken glass of the vehicle, no blood samples of the victim and no photos of the spot were taken. These FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 24/31 inconsistencies, in the perception of this Court, fall in the realm of minor inconsistencies, and do not shake the foundation of the prosecution case. The testimony of the prosecution witnesses qua the offence u/s 323/341/34 IPC have been found to be consistent and cogent, and reliance can be placed on them. The medical evidence on record further fortifies the case of the prosecution. Further, Ld. Counsel for the complainant had correctly urged that the defense of the accused, as evinced by the responses elicited when circumstances appearing against them u/s 313 Cr.PC were put to them, were of total denial. The accused could not explain the circumstances appearing in evidence against them, and mere denial by the accused cannot enure any benefit to them.
Allegations qua Section 427 IPC
36. As far as the allegations qua Section 427 IPC are concerned, both the star witnesses namely PW2 and PW3 deposed that the accused Amrit Pal reversed his car and hit against the car of PW2 from the front side. However, their deposition is belied by the testimony of PW10 who categorically averred in this crossexamination that "no damage was caused to the vehicle because of them colliding with each other and thus, no case of an accident was made out."
37. However, qua the factum of causing damage to the vehicle by a brick, FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 25/31 it was deposed by PW2 that Ashish Thukral picked up a brick and struck the right rear window screen of his car. PW3 also deposed that accused Ashish Thukral hit a brick on the right side window pane of the car. The bricks were also seized by the IO and IO also deposed that damage to the vehicle was caused because of hitting of brick. The photograph of the damaged vehicle was identified as Ex. PW2/M in the examinationinchief dated 24.07.2014, of PW2. Further, the IO deposed that he had taken photographs of the damage Indica Car of the complainant in his mobile phone and later on developed the same, and placed the same on record as Ex. PW10/Z1 to Z3. The photographs Ex. PW10/Z1 cogently establishes a case of Section 427 IPC qua accused Ashish Thukral.
Allegations qua Section 308 IPC
38. It is a matter of record that Section 308 IPC was not invoked qua the accused persons at the time of filing of charge sheet but vide order on charge dated 29.11.2013, Section 308 IPC was added. Ld. Counsel for the accused had vehemently contended that to only add a graver charge of Section 308 IPC, the complainant introduced the story of accused attempting to hit the head of the victim, but hit the shoulder instead. It was further pointed out that the MLC and other medical reports do not FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 26/31 reflect the usage of brick to cause dislocation of shoulder. Ld. Counsel for accused contended that the victim did not suffer any injuries on the head, and as such no case u/s 308 IPC ought to be made against him. On the other hand, Ld. Counsel for complainant placed reliance on Vijay Mishra (supra) to contend that the first part of Section 308 IPC does not make any inference to any hurt being caused by the accused persons and, therefore, any hurt being caused is not an essential condition to attract the provisions of Section 308 IPC.
39. To substantiate its claim qua allegations u/s 308 IPC, PW2 deposed as under:
"They all pushed me, I fell down and thereafter they caught hold of my brother and accused Amrit Pal picked up a brick lying there and hit the same on the shoulder of my brother. The accused persons also started beating my brother with fists. The shoulder of my brother got dislocated due to the brick blow, his specs were broken and blood oozed out from his right eye.
40. A perusal of above testimony reveals that PW2 was an eye witness and he has categorically deposed that the accused Amrit Pal picked up a brick and hit the shoulder of his brother. In other words, he did not aver that Amrit Pal hit the brick on the head, or attempted to do so. The same words were used by him in his complaint Ex. PW2/A. The said witness, vide his complaint Ex. PW2/A mentioned that the shoulder of his brother FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 27/31 PW3 was broken, after he was hit on the shoulder by a brick by the accused persons.
41. However, it has come on record through testimony of PW1 Dr. Ankur, that as per the XRay Plates of Shivan Thukral, the anterior dislocation of left shoulder joint was found. It is pertinent to note that XRay plate of Shivan Thukral was prepared by Dr. Dimpi Sinha, and the same was Ex. PW1/A. However, the said doctor Dimpi Sinha was not examined as a prosecution witness. In the crossexamination of PW1 Dr. Ankur, it was elicited as hereunder:
"I did not see the Xray plate regarding dislocation of the shoulder in this matter. It is correct that there can be a forward, backward, upward and downward dislocation of the shoulder. I have come only to attest the signature of Dr. Dimpy Sinha, therefore, I am not authorized to comment on the Xray plate to opine about the nature of dislocation in this matter".
42. Moreover, PW8 Dr. Tanvi Kaushal also opined the nature of injuries as being grievous, after perusing the discharge summary. However, it is pertinent to note that Dr. Dimpi Sinha, who prepared the XRay report, was not examined at all by the prosecution. Even Ex. PW1/A was not admitted by the accused. In this context, it would be apt to peruse the following extracts of State Vs. Prem Singh, Crl Appeal no 444DBA of 1997, in which it was held as thus;
FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 28/31
43. "11 Out of the two injuries suffered by him one is superficial incised wound over palmer aspect of distal phalanx of right thumb was present. Dr. Amar Baja PW1 opined vide opinion Ex. PE1 that the injury No.1 was dangerous to life on the basis of the xray report, yet the Radiologist, who xrayed the injuries had not been examined. Therefore, the opinion given by Dr. Amar Baja (PW1) could be of no avail. The reference, if any can be made to a judgment titled as Santoo V. State, 1977 Crl.J (Notes) 2 wherein it was observed as under:
"An xray report of the injury caused to the complainant was prepared by 'A'. prosecution did not produce 'A' before the Court. It was not suggested that 'A' was either dead or not available. A supplementary report was prepared by 'B' on the basis of the xray report prepared by 'A'. it was held that 'A's report was inadmissible in evidence. So also the evidence of 'B' based on his supplementary report prepared on the basis of the xray report of 'A' was also inadmissible in evidence."
"12 Similarly, I this case also, the report Ex. PE1 having been given by Dr. Amar Bajaj PW1 on the basis of the xray report had not bee proved at all by its author, the same is liable to be taken out of consideration."
44. Further, the alleged brick used for the commission of the offence, was not shown to the medical witness. In this regard, reliance can be placed on Amar Singh (supra)wherein it has been held as under:
45." 31 The same has been again asserted by this Court in Ishwar Singh V/s State of U.P. 4 by observing as under: It is the duty of the prosecution, and no less of the Court, to see that the alleged weapons of the offence, if available, is shown to the medical witness and is opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so sometimes, cause aberration FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 29/31 of the course of justice. On the basis of the evidence on record it is difficult to say whether the injury to the deceased was caused by the knife with a broken tip which was ceased. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye witness cannot be accepted at its face value, as observed by this Court in Mitter Sen and others V/s State of U.P.5."
46. Thus, credence cannot be given to the opinions of the doctors examined qua dislocation of shoulder of injured. Moreover, the prosecution could not cogently establish that the accused had an intention to commit the offence in question. As can be seen from the testimony of PW2, he being eye witness, did not witness accused Amrit Pal attempting to hit on the head of Shivan Thukral. Further, in his crossexamination, he avowed that no second blow of the brick was given by Amrit Pal to his brother. The fact that no second blow of brick was given raises doubts on the allegations of intention of the accused to attempt to cause culpable homicide. The accused did not attempt to cause more injuries by the said brick. Moreover, the other witness PW2, who is an eye witness, was conspicuously silent qua the attempt of hitting on the head of PW3 by accused Amrit Pal. The medical evidence also nowhere reflects on record the use of any brick to cause injuries upon the head of the injured Shivan Thukral. Under these circumstances, no case u/s 308 FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 30/31 IPC is made out qua the accused.
Conclusion
47.In view of the above, it is clear that the prosecution has failed to prove its case beyond reasonable doubt for the offence punishable u/s 308 IPC against all the accused persons. Accordingly, they are hereby acquitted for the offences punishable u/s 308 IPC. However, prosecution has successfully proved its case beyond reasonable doubt for the offences punishable u/s 323/341/34 IPC against all the accused persons, and accordingly they are hereby convicted for the said offences. Further, prosecution has proved its case for the offence punishable u/s 427 IPC only against accused Ashish Thukral and therefore, he is hereby convicted u/s 427 IPC also.
48. Put for arguments on quantum of sentence on 01.09.2022. Announced in the open court on 29th August 2022 (ARUL VARMA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi FIR No. 304/11 State Vs. Amrit Pal & Ors Page No. 31/31