Delhi District Court
State vs Gaurav Kumar on 4 August, 2025
IN THE COURT OF MS. SAUMYA CHAUHAN,
ADDITIONAL SESSION JUDGE (FAST TRACK
COURT)-02, WEST DISTRICT, TIS HAZARI COURTS,
DELHI
CNR No. DLWT01-009256-2018
SC 699/2018
STATE Vs. GAURAV KUMAR
FIR no.53/2018
PS Tilak Nagar
JUDGMENT
Date of commission of offence 04.02.2018 Date of Committal in the Court of 10.10.2018 Sessions Name of the complainant Sh. Harnek Singh Name of accused and address 1. Gaurav Kumar S/o Sh. Subhash Chander, R/o H.No.1/200, 1st Floor, Subhash Nagar, Delhi
2. Manav Dawar S/o Sh. Jitender, R/o H.No.A-725/26, Chaukhandi Tilak Nagar, Delhi
3. Jitender Dawar @ Happy S/o Sh.
Prem Chand, R/o H.No. A-725/26,
Chaukhandi, Tilak Nagar, Delhi
Offence complained of or proved 308/323/341/34 IPC
Plea of the accused Not guilty
Final order All accused convicted under
Section 341/325/34 IPC.
SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.1 of 27 Date of judgment 04.08.2025 CASE OF THE PROSECUTION
1. The accused persons are facing trial for offence punishable under Section 308/323/341/34 IPC.
2. The briefly stated facts as per the prosecution are that on 04.02.2018, DD no.61A was received by IO/SI Govind at PS Tilak Nagar. He reached the spot i.e. 16/1, Mukherjee Park where he came to know that a quarrel had taken place with injured Harnek Singh, who was already taken to DDU hospital by PCR. He reached DDU hospital where the injured was admitted. However, his statement could not be recorded as he was in immense pain and doctor had declared him unfit for statement. On the next day, the injured was taken to Maharaja Agrasen Hospital by his wife Smt. Ajeet Kaur. The IO reached Maharaja Agrasen Hospital and recorded the statement of Smt. Ajit Kaur, who stated that 2-3 persons had beaten her husband with an umbrella stick and fists. They also pulled his hair and pressed his neck. When she raised alarm, the assailants ran away. Her husband told her that he had asked those boys to remove their car which was parked in front of his shop upon which they started abusing him and also beaten him up. She called on 100 number and the injured was taken to DDU hospital in PCR van. She also stated that since the machines were not working at DDU hospital, she got her husband admitted in the ICU ward of Maharaja Agrasen Hospital on 05.02.2018.
SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.2 of 27 INVESTIGATION & OTHER PROCEEDINGS
3. On basis of above said statement of Smt. Ajeet Kaur, rukka was prepared by IO and the present FIR was registered under Section 323/341/34 IPC. The doctor gave opinion regarding the injuries suffered by the victim/injured Harnek Singh as 'dangerous'. Accordingly, Section 308 IPC was added in the present FIR. The accused persons namely Gaurav Kumar and Manav Dawar were arrested on 16.02.2018. The accused Jitender Singh @ Happy was granted anticipatory bail by Learned ASJ concerned. He joined the investigation as per court's order.
4. Upon completion of investigation, charge-sheet U/s 308/323/341/34 IPC was filed in the Court of Ld. MM against the accused persons. After completion of proceedings U/s 207 Cr.P.C, Ld. MM committed the case to the Learned Sessions Court. Thereafter, the case was assigned to the Court of Ld. Predecessor and then was received in this court by way of transfer.
CHARGE
5. Vide order dated 05.03.2019, charge under Section 308/341/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. To prove the charge against the accused, the prosecution has examined 9 witnesses in total.
SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.3 of 27
7. PW-1 Sh. Harneek Singh/victim deposed that on 04.02.2018, he had gone to his DMS Booth situated at DDA Colony, Chaukhandi in between A and B block at about 04.00 p.m to open his booth. He deposed that accused Jitender Dawar @ Happy is a resident of A-Block, DDA Colony, Chaukhandi. When he reached the booth, he saw that the relatives of Jitender Dawar had parked a white colour big car in front of his booth and had gone to the house of Jitender Dawar. At that time, PW-1 did not object to the same as he thought that they would leave in some time and as one has to cooperate with the neighbour. At 07.00 p.m on the same day, he went to the house of Jitender Dawar and asked a lady family member, whom he did not know, to remove the car parked in front of his booth. At 10.10 p.m., the accused Jitender Dawar @ Happy alongwith accused Gaurav and two other persons, came at his booth. They took out 2-3 baseball bats from the car and hit PW-1 with the said bats on the backside of his neck as well as on his back due to which his back bone had got bent and he is unable to walk, eat and drink properly. Somehow the message about the incident reached his wife, who came running within 7-8 minutes and she intervened to save him from the assailants, who were hitting him continuously with the bats and because of which he became unconscious. He was taken to DDU hospital where he was initially treated. Subsequently, he got treatment from Maharaja Agrasen Hospital, Delhi. He came to know that the police officials had come to DDU hospital but at that time he was unconscious, hence he could not give statement. After his operation, the police officials came to meet him at SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.4 of 27 Maharaja Agrasen hospital and recorded his statement in ICU. He identified the accused Jitender @ Happy and also identified the accused Manav by face before the court. The accused Gaurav was not present in the court but his identity was not disputed by his counsel.
8. In his cross-examination, PW-1 stated that DMS Booth is allotted in his name, and it remains open from 5.00 am to 9.00- 10.00 pm. He told the police that the accused had come with baseball bats and hit him many times on his back and neck. He was confronted with his earlier statement under Section 161 Cr.P.C, Ex.PW1/D1, where it is not so recorded. His wife was coming to that place and when she saw the crowd she came to know about the incident with him. A question was put to him by Learned defence counsel that whether the accused persons had poured liquor in his mouth, which he answered as 'yes'. He denied the suggestion that no such incident of putting liquor in his mouth by the accused persons had happened and that is why he did not mention it in his statement Ex.PW1/D1. He denied that he teased the wife of one of the accused on that day under influence of liquor due to which an altercation took place between him and the accused persons left from there. He denied that he has wrongfully implicated the accused persons in order to take revenge. He denied that prior to the incident he was suffering from cervical spine showed posterior margin of C3 vertebra showed osteophyte formation alongwith disc herniation, compressing the spinal cord. He denied the suggestion that he was drunk at that time as his MLC shows 120 mg of alcohol per SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.5 of 27 100 ml.
9. PW-2 Smt. Ajit Kaur, wife of the complainant was examined-in-chief. However, her cross-examination could not be conducted as she expired on 12.08.2022 and accordingly her name was dropped from the list of prosecution witnesses.
10. PW-4 ASI Madan Lal, duty officer recorded the present FIR on 06.02.2018 on basis of the rukka produced by Ct. Mukesh. Copy of the FIR is Ex.PW4/A (OSR) and his endorsement on rukka is Ex.PW4/B. After registration of FIR, PW-4 handed over the original rukka and copy of FIR to Ct. Mukesh to be handed over to the IO.
11. PW-5 Dr. Mukesh Kumawat deposed that on 05.02.2018, he was posted as junior resident in DDU Hospital. At about 12.55 a.m, the injured Harnek Singh was brought to the Casualty with alleged history of physical assault. He was medically examined vide MLC no. 00921, Ex.PW-5/A. The patient was referred to ortho/neuro for further treatment and management. During cross- examination, PW-5 admitted that patient was conscious and oriented at the time when he was brought to the casualty. He admitted that the bruise as mentioned in the MLC cannot amount to dangerous injury. He also admitted that it is mentioned in the MLC that the patient was under the influence of liquor (BAC 128 ml).
12. PW-6 Dr. Vikas Gupta deposed that on 05.02.2018, he was SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.6 of 27 working as Senior Consultant in the department of Neuro Surgery Maharaja Agrasen Hospital. On that day, Harnek Singh came to the hospital as an emergency case with the history of loss of consciousness, not able to move both upper limbs and lower limbs. He had complaint of sensory loss below T4 level. The patient was referred from DDU hospital for treatment. On examination, the patient had quadriparesis. Investigation showed C2-C3 injury with associated compression of the spinal cord. He was operated for the same and C2-C3 decompression and fixation was done. The patient was discharged from the hospital on 19.02.2018 in a stable condition with persistent quadriparesis with minimal improvement. The discharge summary of the patient was prepared by his junior Dr. Amit Gupta and verified by him. He identified the signatures of Dr. Amit Gupta on the discharge summary Ex.PW6/A.
13. He further deposed that on 27.02.2018, a letter was received by Medical Superintendent, Maharaja Agrasen Hospital to handover the treatment papers as well as to give final opinion on the MLC of injured Harnek Singh. He examined the case history and treatment given to the patient and opined the nature of injury as 'dangerous' on the basis of severe high cervical cord injury leading to quadriparesis, and that it can also lead to respiratory problems in future if not operated. The said opinion is Ex.PW6/B.
14. During his cross-examination, PW-6 admitted that at the time of admission in the hospital on 05.02.2018, the patient was SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.7 of 27 conscious and oriented. He denied the suggestion that the margin in MRI cervical spine is common with the age. He denied that the injuries mentioned in the medical documents are not serious in nature and not caused by any physical assault. He stated that If there is acute onset of quadriparesis with evidence of acute injury in the cord in MRI, then it can be attributed to the acute trauma and injury. In case it is age related, then any weakness in the limb is very gradual in onset and not acute.
15. PW-7 Sh. Desh Raj, Record Clerk, DDU hospital, identified the handwriting of Dr. Manish Mahindra on the notes of the MLC Ex.PW7/A and also his signatures at point A.
16. PW-8 Dr. Hari Shankar Sharma, CMO, Maharaja Agrasen hospital deposed that he had seen the patient Harnek Singh, aged 53 years in the emergency department on 05.02.2018. He was referred from DDU hospital with the complaint of bilateral lower and upper limb weakness. The witness examined the patient vide MLC Ex.PW8/A and referred him to department of neurosurgery for further management and treatment. He remained under treatment in Maharaja Agrasen hospital from 05.02.2018 to 19.02.2018.
17. PW-9/IO Ex-SI Govind deposed that on 04.02.2018, he was on emergency duty with one constable. At around 10:30- 10:45 PM, he received a PCR call regarding quarrel and reached the spot alongwith the said constable. The injured was not present there. After sometime, one lady namely Ajit Kaur met SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.8 of 27 him and told him that her husband Harnek Singh was beaten by 2-3 persons and she had seen the incident while she was coming to the spot. She also told him that her injured husband had already been shifted to DDU hospital by PCR van. Thereafter, he alongwith the constable went to DDU hospital and met with the doctor. The doctor declared the patient not fit for statement. On 05.02.2018 the injured was referred to Maharaja Agrasen hospital. On 06.02.2018, he alongwith one constable reached Maharaja Agrasen Hospital and met the injured and his wife Ajit Kaur. The injured was unfit for the statement and therefore he recorded the statement of Smt. Ajit Kaur. He prepared the rukka Ex.PW9/A and after returning to the PS, handed it over to the duty officer for registration of FIR.
18. He further deposed that he checked for the CCTV footage near the vicinity of the spot. One constable brought one pen drive and it was handed over to the SHO PS Tilak Nagar. On 16.02.2018 he along with Ct. Mukesh, Ct. Virender, and PW-3/Ct. Ravinder went to Pacific Mall gate no.3 and arrested accused Gaurav vide arrest memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/C. His disclosure statement Ex.PW9/B was also recorded.
19. In cross-examination, PW-9 stated that Smt. Ajeet Kaur had not disclosed the names of the assailants to him on 04.02.2018. He did not seize or got preserved any CCTV footage of the spot. No weapon of offence was found near the spot on 04.02.2018. The patient/injured was shifted from DDU hospital SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.9 of 27 to Maharaja Agrasen hospital as he was not receiving proper treatment in DDU hospital. He was informed by the doctor at DDU hospital that the machines like X-ray machine and ultrasound machine were not working properly. He could not remember the name of the said doctor nor he recorded the statement of any doctor regarding non-functioning of the above said machines.
20. PW-3 Ct. Ravinder deposed that on 16.02.2018 he joined the investigation of this case with I.O. SI Govind Singh. On that day at about 09:15 PM, IO arrested accused Gaurav Kumar and Manav Dawar from Pacific Mall, Gate no.3, Tilak Nagar and conducted their personal search. IO prepared the relevant documents in his presence which are Ex.PW3/A, Ex.PW3/B, Ex.PW3/C and Ex.PW3/D.
21. After completion of prosecution evidence, statement of accused persons was recorded separately under Section 313 Cr.P.C., wherein they denied the entire prosecution case and stated that they have been falsely implicated in the present case. The accused Gaurav Kumar stated that on 04.02.2018 he alongwith his wife, daughter, son and nephew Manav (co- accused) were going to attend a wedding. They had come to pick Manav from his house and had parked his car a few meters away from their house. He saw that the injured Harnek was misbehaving with his wife in a drunk condition and was banging on the window of the driver's seat of their car. They left from there as they were getting late. However, police visited Manav SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.10 of 27 and Jitender's house on 07.02.2018 and again on 16.02.2018 and asked them to surrender in the PS. Accused Manav and Jitender also stated the same thing.
22. Though the accused persons expressed their willingness to lead defence evidence, however, no evidence was led by them and vide statement of Learned counsel for the accused persons dated 24.04.2025, DE was closed and matter was listed for final arguments.
FINAL ARGUMENTS
23. I have heard the final arguments on behalf of prosecution and on behalf of the accused and perused the entire record carefully.
24. Ld. counsel for accused persons has submitted that the accused persons have been falsely implicated in the present case. It has been submitted that there are various contradictions in the testimony of PW-1 and he has made several improvements from his statement under Section 161 Cr.P.C. Further, no public person was joined by the IO during investigation to corroborate the testimony of PW-1. It is submitted that PW-1 has given different description of the weapon of offence in his statement under Section 161 Cr.P.C., Ex.PW1/DA and in his testimony before the court. In his statement Ex.PW1/DA, PW-1 stated that he was beaten by an umbrella stick lying in his shop, however, before the court, he deposed that he was beaten by baseball bats, which the assailants had taken out from their car. Further, no weapon of SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.11 of 27 offence was seized by the IO in the present case. He has submitted that it was the injured/PW-1 who was under the influence of liquor and was misbehaving with wife of accused Gaurav. Same is proved by his MLC Ex. PW-4/A, which shows his BAC (Blood Alcohol Content) was 128/100 ml.
25. Per contra, Ld. Additional Public Prosecutor for State has submitted that the prosecution has successfully proved the charges against the accused persons and they are liable to be convicted. She has submitted that PW-1/complainant has fully supported the prosecution story. He has clearly deposed that the accused persons had hit him with baseball bats on his back and neck which shows their intention to cause such injuries to the witness as likely to cause his death. No further corroboration by any other independent witness is needed as the conviction can be based on testimony of a sole eye witness. As far as discrepancy in the weapon of offence is concerned, it is a minor discrepancy. Further, non-recovery of weapon of offence is of no consequence as it is a settled law that recovery of weapon of offence is not sine-qua-non in a criminal trial. The doctor/PW-6 has opined the injury caused to the injured as 'dangerous'. Hence, the accused persons are liable to be convicted for the offences they have been charged with.
COURT FINDINGS
26. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.12 of 27 settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
27. In the present case, the accused persons have been charged with offence punishable under Section 308/341/34 IPC. Section 308 IPC prescribes punishment for attempt to commit culpable homicide and reads as under, 'Section 308 IPC. Attempt to commit culpable homicide - "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
28. The offence of 'Culpable homicide' is defined under Section 299 IPC. Same is reproduced verbatim as under, "299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.13 of 27 the offence of culpable homicide."
29. Section 341 IPC prescribes the punishment for wrongful restraint. The offence of 'Wrongful restraint' has been defined under Section 339 IPC as voluntarily obstructing a person to prevent him from proceeding in any direction in which that person has a right to proceed.
30. Section 34 IPC comes into play when a criminal act is done by several persons in furtherance of their common intention. Each of such persons is then liable for that act in the same manner as if it were done by him alone. Same is reproduced as under:-
"Section 34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
31. In the case at hand, the star witness of the prosecution is PW-1 i.e injured Sh. Harnek Singh. He has deposed about the incident in a detailed and lucid manner. He has deposed that the accused persons had beaten him with baseball bats on his back and neck. He also deposed that till date his back is bent and he is unable to walk, eat or drink properly. He duly identified the accused Manav and Jitender as the assailants who had beaten him. The identity of the accused Gaurav was not disputed by his SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.14 of 27 counsel and hence admitted.
32. It is a settled law that ocular evidence of the injured witness is the best evidence. In the case titled as "Abdul Sayeed v. State of M.P." 2010 SCC OnLine SC 1027, it was held by Hon'ble Supreme Court that 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 in order to falsely implicate someone else. Convincing evidence is required to discredit an injured witness. Similarly, in the case titled as 'State of U.P. v. Naresh' 2011 SCC OnLine SC 450, it was held by Hon'ble Supreme Court as under, "27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab [(2009) 9 SCC 719: (2010) 1 SCC (Cri) 107], Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.15 of 27 (Cri) 211] and Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262])"
33. Ld. Counsel for accused persons has argued that PW-1 has made various improvements in his testimony from his earlier statement under Section 161 Cr.P.C. i.e. Ex.PW1/D1. In the said statement, he mentioned the weapon of offence as stick of an umbrella lying in his shop, while in his testimony recorded before the court, he stated it to be baseball bats which the accused persons had taken out from their car.
34. PW-1 has been cross-examined at length on behalf of the accused persons. However, except for the description of the weapon of offence, no material contradiction has come in his testimony. It is a settled law that the discrepancy regarding the weapon of offence does not strike at the root of the prosecution story and hence is immaterial. In the case titled as 'Amresh Singh v State of U.P' Crl Appeal no 14/2000, date of decision
11.12.2015, it was held by Hon'ble Allahabad High Court, "29. The next contention of the learned counsel for the appellant is that there is a great variation in the description of the weapon used by the accused appellant Ram Awadh Singh as sometimes it was stated that the appellant was carrying Danda and at some places it was said that he was carrying a Lathi and again at some places it was stated that he was carrying a 'Baint', as such, the prosecution side itself was not clear as to which weapon was used by the accused appellant Ram Awadh Singh and this fact makes the prosecution story doubtful.
30. This contention of the learned counsel for the appellant does not have any force and is liable to be SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.16 of 27 rejected outrightly as the alleged weapon Lathi, Danda and Baint; are all hard and blunt object and they are all similar. They may differ in size but ultimately if they are used to hit the victims, it will more or less cause the same kind of injury. It cannot be said that they are different kind of weapons and will cause different types of injuries. It all depends as to how much of force is applied while hitting the victims with it."
35. It is further a well-settled position in law that minor discrepancies in the testimony of witnesses, which do not strike at the root of the prosecution story should not be considered by the court, if the evidence otherwise appears to be trustworthy and reliable. In the case titled as "Kusti Mallaiah v. State of A.P." 2013 SCC OnLine SC 490, Hon'ble Supreme Court observed, "18. At this juncture, it is also apt to reproduce a passage from State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105] wherein it has been laid down as follows :
"10. 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 scrutinise 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. 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 rejection of the evidence as a whole."
SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.17 of 27
36. Examining the present case in the light of the above- mentioned cases, this court is of the considered opinion that the discrepancy regarding the weapon of offence in the testimony of PW-1 does not strike at the root of the prosecution story. It is a settled law that a witness cannot be expected to have a photographic memory and give a graphic description of the entire incident. The defence has failed to impeach the credibility of PW-1 or shake the veracity of his statement. This witness has given a truthful, reliable and trustworthy account of the entire incident and the court does not see any reason to disbelieve or discard the evidence of PW-1. The discrepancy regarding the weapon of offence alone is not sufficient to discredit the entire testimony of PW-1. Also, there is no evidence of any previous enmity between the accused persons and the complainant/injured. Then why would the injured/PW-1 falsely implicate the accused persons and let the real culprit go scot free.
37. It has been argued by learned defence counsel that the injured has falsely implicated the accused persons to take revenge as an altercation had taken place between them when the injured was misbehaving with accused Gaurav's wife in an inebriated condition. In their statement under Section 313 Cr.P.C., the accused persons stated that the complainant had misbehaved with wife of accused Gaurav in a drunken condition and was banging on their car window. However, the accused persons have failed to prove any such incident of misbehaviour/teasing. None of the accused entered the witness box as defence witness to depose about the said incident, nor the SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.18 of 27 lady (Gaurav's wife) with whom the injured allegedly misbehaved was examined in defence evidence. No specific the words uttered or gesture made by the injured while misbehaving with the accused's wife have been stated by the accused persons in their statements under Section 313 Cr.P.C. There is no proof on record that any call was made on 100 number regarding the alleged incident of teasing/molestation. The accused persons have only given a suggestion to PW-1 that he has teased the wife of one of the accused persons under the influence of liquor, which PW-1 denied. Hence, it appears that the story of the accused persons of the injured misbehaving with Accused Gaurav's wife appears to be a concocted one and an afterthought. Also, it is highly unbelievable that the injured would go to the extent of injuring himself so badly that he had to undergo surgery and be partially crippled for life, only with a motive to take revenge on the accused persons.
38. The ocular testimony of PW-1 is also corroborated by medical evidence. As per the case of the prosecution, the injured was taken to DDU hospital from the spot. As per the MLC Ex/PW5-A, the injured was brought with alleged history of physical assault. He was having one bruise, pinkish colour over neck and was having weakness in upper and lower limbs. His BAC was 128/100 ml. He was referred for X-ray spine and skull.
39. However, on the next day he was shifted to Maharaja Agrasen hospital. As per the MLC of the injured prepared at Maharaja Agrasen hospital Ex.PW8/A, the injured had lower and SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.19 of 27 upper limb weakness. As per his discharge summary Ex.PW6/A, he was diagnosed with 'Post traumatic C-2 and C-3 canal stenosis with cord changes'. He had history of loss of consciousness, not able to move both upper limb and lower limb, and complaint of sensory loss below T-4 level. The MRI cervical spine showed 'Posterior margin of C-3 vertebra showed osteophyte formation along with disc herniation compressing the spinal cord. Intramedullary hyperintense signals are seen at C2-3 level suggesting myelomalacia.'
40. As per the opinion regarding injuries Ex.PW6/B, the injured had suffered 'Acute cervical spinal cord injury leading to quadriparesis'. PW-6/Dr. Vinod Gupta gave the opinion of the injury of the injured Harnek Singh as 'dangerous'.
41. It has been argued by Ld. Counsel for accused persons that the medical condition of the injured was due to old age and not due to the injury caused to him. It has been submitted that the victim was suffering from degeneration of spinal cord due to old age and he has taken advantage of the same to implicate the accused persons. At this stage, it would be relevant to the refer to the testimony of PW-6/Dr. Vikas Gupta, who had given the final opinion on the MLC of the injured and opined the nature of injury as 'dangerous'. This witness deposed that he gave the nature of injury as dangerous as the injured suffered from severe high cervical cord injury leading to 'quadriparesis'. He also deposed that it can lead to respiratory problems in future if not operated. In his cross-examination, PW-6 denied the suggestion SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.20 of 27 that the margin in MRI cervical spine is common with age. He specifically denied the suggestion that margin in MRI cervical spine is common with age. The relevant portion of the testimony of this witness is reproduced verbatim as under, "Ques. I put to you that is it in all cases C2-3 injury with associated compression of the spinal cord is caused by a blunt force or not.
Ans. If there is acute onset of quadriparesis with evidence of acute injury in the cord in MRI then it can be attributed to the acute trauma and injury. In case it is age related, then any weakness in the limb is very gradual in onset and not acute."
42. In view of the testimony of PW-6 coupled with the Final opinion Ex. PW6/B, it is clear that the injury of Sh. Harnek Singh was 'acute cervical spinal cord injury' which is attributable to acute trauma and injury. Hence, it has been successfully proved by the prosecution that the injured Sh. Harnek Singh was not suffering from age-related spinal cord issues and the injury to his cervical spinal cord was due to the beatings given by the accused persons.
43. Another argument raised by Ld. Defence counsel is that the alleged weapon of offence has not been recovered by the police. However, it is a settled rule of law that non-recovery of the weapon of offence is not fatal to the case of prosecution, especially if reliable ocular and medical testimony is available on record.
44. Ld. Defence counsel has also contended that there is delay SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.21 of 27 in registration of the FIR. However, it is a settled position in law that mere delay in lodging an FIR by itself cannot be a ground to draw an adverse inference against the prosecution. However, this delay should be well-explained. In the case titled as 'Ravinder Kumar v. State of Punjab', (2001) 7 SCC 690, it was held by Hon'ble Supreme Court, "13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course, a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedateness of temper for moving to the police station for the purpose of SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.22 of 27 furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
45. In the present case, the incident had taken place on the night of 04.02.2018 at around 10:30-10:45 pm. However, the DD entry was kept pending as the statement of the injured could not be recorded as he was in pain. On 06.02.2018, IO recorded the statement of wife of the injured and got the present FIR lodged. Hence, the delay in filing of FIR is not fatal to the prosecution case. Hence, this argument of the accused does not hold good.
46. In view of the above discussion, this court is of the considered opinion that the prosecution has successfully established that the accused persons had hit the injured Sh. Harnek Singh with baseball bats/umbrella stick with a common intention and caused hurt to him. Now, the question before the court is whether the act of the accused falls within the ambit of Section 308 IPC or not.
47. In the case titled as 'State Vs. Varun Dass' 2022 SCC OnLine Del 2992 Hon'ble High Court of Delhi observed that to constitute an offence under Section 308 IPC, the following conditions should be fulfilled:
a) That the person does an act;
b) That the act is done with an intention or knowledge to commit culpable homicide not amounting to murder;
c) That the person concerned commits the offence under such circumstances that in case the act so done SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.23 of 27 by that person causes death, he would be guilty of culpable homicide not amounting to murder;
d) In case hurt is caused while committing this offence, the person concerned shall be awarded enhanced punishment.
48. It is well-settled law that the question of intention to kill or the knowledge that the act would cause death, is a question of fact and not of law. To attract the provision of Section 308 IPC, the guilty intention or the knowledge with which an act was done is material, irrespective of its result. It has been held in plethora of cases that the intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc. (reliance placed on 'State of M.P. v. Kashiram' AIR 2009 SC 1642, 'Sunder v. State', 2010 (1) JCC 700, and 'Raju @ Rajpal and others v. State of Delhi', 2014 (3) JCC 1894)
49. In the present case, the accused persons had hit the complainant/PW-1 Harnek Singh on the backside of his neck and on his back with baseball bat/umbrella stick. Had it been the intention of the accused persons to cause death of the complainant, they would have hit him on his head/skull. Also, it would be too far stretching the definition of knowledge as contemplated under Section 308 IPC that the accused had the knowledge that such a condition like quadriparesis or even death would be caused by hitting on the backside of the neck or the back of the injured. Also, the incident had happened at the spur SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.24 of 27 of the moment and there is no evidence of pre-meditation on part of the accused persons.
50. Hence, it cannot be said that the accused persons had attacked the victim with the intention to cause his death or with knowledge that death might be caused. In the case titled as "Bishan Singh & Anr. Vs. State" (2007) SCC 65, Hon'ble Supreme Court held, "Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body. The accused, therefore, in our opinion, could not be said to have committed any offence under section 308 IPC. The same would fall under Section 323 and 325 thereof."
51. In view of the above discussion and in light of the aforesaid judgments, this court is of the considered opinion that the act of the accused persons is not covered under Section 308 IPC. However, as already discussed, the complainant suffered quadriparesis and as per opinion of PW-6/Dr. Vikas Gupta, the injury was 'dangerous' in nature. Infact in his testimony, PW-1 has clearly stated that till date he is unable to walk, eat and drink properly and his back has got bent.
SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.25 of 27
52. At this stage, it would be appropriate to look at the definition of grievous hurt as contained in Section 320 IPC.
Section 320 IPC- Grievous hurt The following kinds of hurt only are designated as "grievous":
1. Emasculation.
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Destruction or permanent impairing of the powers of any member or joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.
8. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
53. As per the medical documents pertaining to the injured Harnek Singh i.e Ex.PW5/A, Ex.PW-6/A and Ex.PW-6/B, the injuries suffered by him were 'dangerous'. He had suffered acute and severe cervical spinal cord injury leading to quadriparesis. It has been proved that this injury is caused by the beatings given by the accused persons to the injured on the backside of his neck and his back. Hence, it has been proved that the act of the accused persons falls within Clause 8th of Section 320 IPC. Hence, the accused persons are liable to be convicted under Section 325 IPC read with Section 34 IPC.
54. In view of the above discussion, this court is of the considered opinion that the prosecution has led cogent and reliable evidence to prove the allegations against accused SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.26 of 27 persons. It has been proved beyond reasonable doubt that the accused persons in furtherance of their common intention had attacked the complainant with a hard and blunt rod-like object like umbrella stick or baseball and caused grievous hurt to him. It has further been proved that the accused persons had wrongfully restrained the injured/PW-1 at the spot. Hence, they are liable to be punished for offence punishable under Section 341/325 IPC read with Section 34 IPC. Hence, the accused persons namely Gaurav Kumar, Manav Dawar and Jitender Dawar @ Happy are convicted under Section 325/341 IPC read with Section 34 IPC.
55. Copy of this judgment be given free of cost to the accused alongwith coversheet as per practice direction by Hon'ble High Court of Delhi contained vide no.124/Rules/DHC dated 10.12.2024. Digitally signed by SAUMYA SAUMYA CHAUHAN CHAUHAN Date: 2025.08.04 15:25:17 +0530 Announced in The Open Court (Saumya Chauhan) today i.e 04th August 2025 ASJ (FTC)-02, West Tis Hazari Courts, Delhi Certified that this judgment contains 27 pages and each page Digitally signed bears my signatures. SAUMYA by SAUMYA CHAUHAN CHAUHAN Date: 2025.08.04 15:25:23 +0530 (Saumya Chauhan) ASJ (FTC)-02, West Tis Hazari Courts,Delhi 04.08.2025 SC No.699/18 FIR No.53/2018 State Vs. Gaurav Kumar & Ors. page no.27 of 27