State vs . Som Dutt on 29 June, 2019

[Cites 33, Cited by 0]

Delhi District Court

State vs . Som Dutt on 29 June, 2019

               In the Court of Samar Vishal,
        Additional Chief Metropolitan Magistrate - I
         Rouse Avenue Court Complex, New Delhi

Cr Case 10/2019
STATE Vs. SOM DUTT
FIR No. 08/2015
Police Station : Gulabi Bagh

Date of Institution of Case    : 15.10.2015
Judgment Reserved for          : 29.04.2019
Date of Judgment               : 29.06.2019

JUDGMENT:

(a) The date of commission of : 10.01.2015 offence

(b) The name of complainant : Sanjeev Rana

(d) The offence complained of : U/s 325/341/34 IPC

(e) The plea of accused : Pleaded not guilty

(f) The final order : Convicted

(g) The date of such order : 29.06.2019 JUDGMENT

1. The accused Som Dutt has been prosecuted for FIR No. 08/2015 1/28 State vs Som Dutt commission of offence under section 325/341/147 read with section 149 of the Indian Penal Code.

2. The first information report(FIR) in this case was registered under section 323/341/34 of the Indian Penal Code on the complaint Ex.PW1/A of the complainant Sanjeev Rana, who is also the victim of the offence,.

3. After the registration of the case, the investigation was done by SubInspector Sanjay Kumar and on completion of the investigation the chargesheet was filed against the accused Som Dutt in the present FIR No.08/2015 police station Gulabi Bagh for commission of offence under section 325/341/34 of the Indian Penal Code.

4. The case of the prosecution is that on 10.01.2015, the complainant was present at house No.13, DA Flats, Gulabi Bagh, Delhi. At around 8:00 pm, the doorbell of the house rung repeatedly. When he answered the door, he saw that the accused Som Dutt, who was an ExMLA of Delhi at that time, alongwith 5060 persons were present at his door. The complainant objected to the repeated ringing of the bell by the accused. The accused Som Dutt then started assaulting complainant and hit him from a base ball bat on his leg due FIR No. 08/2015 2/28 State vs Som Dutt to which he fall down. The persons accompanying the accused dragged the complainant on the road outside and thrashed him with fists and kicks. He became unconscious. His brother Rajiv called the police at 100 number. The PCR van brought him to Hindu Rao Hospital, where he was medically treated.

5. On the next day in the morning at around 7:30 am, the FIR was registered and investigation was carried on by police station Gulabi Bagh. After investigation, the charge sheet was filed on 27.07.2015. The accused Som Dutt was summoned after the cognizance of the offence was taken by the Court. On 17.05.2017 charge was framed against Som Dutt for commission of offence under section 325/341/147 read with section 149 of the Indian Penal Code to which he pleaded not guilty and claimed trial.

6. During trial, the prosecution has examined twelve witnesses, out of which PW1 Sanjeev Rana is the complainant and the victim of the offence. PW2 Rajeev Rana, although not present on spot, is a witness who reached the spot immediately after the incident and corroborated the subsequent events. PW4 Arvind Kumar Saini is a witness in whose house the complainant was temporarily residing that is Flat No. 13, where the incident FIR No. 08/2015 3/28 State vs Som Dutt took place. PW7 Sunil is the eye witness of the incident. Rest are the formal witnesses of police who proved the registration of FIR and investigation of this case and doctors, who proved the medical reports of the injured.

7. The accused Som Dutt was examined under section 313 Cr.PC and the incriminating circumstances appearing in evidence against him were put to him. He answered that he is innocent and falsely implicated in this case due to political reasons and that the complainant who belongs to Bhartiya Janta Party wants to cut his ticket for Assembly Elections.

8. I have heard the final arguments advanced by learned Public Prosecutor Sh. Vakil Ahmed and learned defence counsels Sh.B.S. Joon and Mohd Irsad.

9. The most important evidence in this case is of complainant. He is the victim of the offence and supported his version given to the police in his complaint Ex.PW1/A. His testimony is reproduced below : "I reside at abovesaid address with my family and work as a property dealer. On 10.01.2015, at about 8:00 pm, I was present FIR No. 08/2015 4/28 State vs Som Dutt at my home and was about to sleep after having dinner. Somebody started continuing ringing the door bell of my house and I opened the gate and found accused Som Dutt (I can identity the accused if shown to me), who was Ex.MLA with 5060 other persons. When I asked accused Som Dutt that why they were continuing ringing the door bell, accused Som Dutt hit on my foot with a base ball bat. Due to the hit I fell on the ground. After I was pulled out of my house by accused Som Dutt and other persons. They threw me down on the road and started giving me fists and leg blows. (I can identify other persons if shown to me). My family members came out and the accused and other persons also scuffled with my mother and my son aged about 10 years. Due to the beatings, I became unconscious. I came to know that my brother had called 100 number and PCR van took me to HRH. Police officials came to the hospital. IO recorded my statement which is Ex.PW1/A bearing my signature at point A. IO also prepared the site plan at my instance. IO FIR No. 08/2015 5/28 State vs Som Dutt recorded my supplementary statement. At this stage, Ld counsel for the accused submits that the identity of the accused Som Dutt is not to be disputed during trial"

10. His testimony is corroborated by PW2 Rajeev Rana, whose testimony is reproduced as under : "I reside at the abovesaid address with my family. On 10.01.2015, at about 8.15 PM, I alone was present in Shiv Mandir, GuIabi Bagh. At that time, I received one phone call of my nephew Sh. Tanmay Rana on mobile no. 9810839317 through unknown number and he told me that his father Sh. Sanjeev Rana was given beating by accused Som Dutt and their associates by dragging him inside the house and also assaulted him. Then I immediately rushed towards our house and the distance between the temple and our house is about 200 meters. On reaching there, my brother was lying on the ground in front of our house and at that time he was unconscious. The public persons who were gathered at the spot told me that my brother was beaten by accused Som Dutt and 4050 other FIR No. 08/2015 6/28 State vs Som Dutt associates of accused Som Dutt. Then I called at 100 number from my mobile phone and after 15 20 minutes police officials reached at the spot and they took my brother in the Hindu Rao Hospital for medical treatment of my brother. At that time, I also accompanied the police official with my brother to the hospital. After reaching the hospital, my brother was got admitted in the hospital. After 34 days, my brother was discharged from the hospital. Thereafter, Police officials recorded my statement after 23 days u/s 161 Cr.PC in the police station. Accused is present in the court today and correctly identify by the witness."

11. The prosecution has examined PW7 Sunil, who is an eye witness of the incident. His testimony is reproduced as under : "On 10.01.2015, I was residing at the aforesaid address alongwith my family. On that day, I alongwith my son Rishabh were going towards PWD office which is adjacent to my house. At that time I saw number of person were gathered. I saw that Sanjeev Rana was lying on the road FIR No. 08/2015 7/28 State vs Som Dutt near pulia which is near to the house of Sanjeev Rana. I saw Som Dutt was having base ball danda in his hand and he was beating Sanjeev Rana with that bat on the legs. There was one Sardar was also present and also kicking injured Sanjeev Rana, I do not remember his name, but I can identify if shown to me. The aforesaid incident happened in front of aforesaid PWD Office Gulabi Bagh and the door step of the injured Sanjeev Rana.

Thereafter, I left the spot due to fear. I had visited the police station after some time of incident and narrated entire incident to the police. The accused is present in the Court (correctly identified by the witness).

I visited the police station after 34 days due to fear of local MLA Som Dutt. I can identify the said base ball danda if same is shown to me.

My statement was recorded by police, the same is now marked as Mark PW7/A."

12. Regarding the presence of the complainant at house no. 13 and that the complainant was visited by this witness Arvind Kumar Saini in the hospital, his testimony as PW4 is FIR No. 08/2015 8/28 State vs Som Dutt relevant. He has deposed that PW2 Rajeev Rana requested this witness to accommodate the mother of this witness at his house that is Flat No. 13, where the incident took place. At the time of incident, he was not present at his house and at around 9:30 pm when he came back, he received a call from the complainant about the assault after which this witness went to see the complainant in the hospital.

13. The case of the prosecution is primarily based on the testimony of PW1 Sanjeev Rana, the victim, corroborated by PW4 and PW7 as discussed above.

14. The complainant is a victim of offence in this case. The evidence of a victim must be given due weightage. His statement is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. The testimony of a victim of offence 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 a victim of offence 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 FIR No. 08/2015 9/28 State vs Som Dutt commission of the offence. The evidence of the victim should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.

15. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that : "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 builtin 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 v. State of Bihar, 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 FIR No. 08/2015 10/28 State vs Som Dutt 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 and Balraje alias Trimbak v. State of Maharashtra. (2010) 6 SCC 673."

16. In State of UP vs Naresh (2011) 4SCC 324 it was observed by Hon'ble Supreme Court that : "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 FIR No. 08/2015 11/28 State vs Som Dutt 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; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259].

17. The settled legal position is that the Court must attempt to, while appreciating the evidence of an eye witness, separate the truth from falsehood and not reject an eyewitness‟ testimony entirely only because there are some embellishments. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under:

"The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness FIR No. 08/2015 12/28 State vs Som Dutt whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

18. Further, as explained in State v. Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the Court to separate falsehood from the truth, in sifting the evidence". At the same time, the eye witness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any.

19. In Rammi alias Rameshwar v. State of Madhya FIR No. 08/2015 13/28 State vs Som Dutt Pradesh AIR 1999 SC 256, it was observed :

"When eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant. 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. But 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".

20. Therefore, the testimony of the injured witness and the victim of offence is accorded a special status in law. 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 FIR No. 08/2015 14/28 State vs Som Dutt therein.

21. In the present case complainant named the accused as his assailant. His evidence in the Court is referred above. He has been duly crossexamined on behalf of accused. The complainant is also the victim of the offence and his testimony attaches great value. There is an inherent consistency in the evidence of the complainant. He has given a consistent account of the incident in his complaint Ex.PW1/A, in his evidence as PW1 and during his cross examination. There is nothing in his crossexamination to impeach his credit or to suggest that he is not a reliable witness or has not spoken truth. There is nothing in his crossexamination to impeach his evidence in the Court or to discredit his evidence. The defence has not produced any material that what can be the reason for complainant for false implication of accused. He has clearly deposed about the assault and the manner in which it was done by the accused Som Dutt. In crossexamination he has stated that he know the accused Som Dutt prior to the date of incident.

22. The testimony of complainant is corroborated by the witness PW7 Sunil, who deposed that he saw the accused beating the complainant with a base ball bat. His testimony FIR No. 08/2015 15/28 State vs Som Dutt is reproduced above.

23. Further, the testimony of PW2 Rajeev Rana, who reached the spot immediately after the incident and who was told by the public persons gathered on the spot that his brother (complainant) was beaten by the accused and his associates. His testimony is relevant under section 6 of the Indian Evidence Act as illustration (a) which reads as under

throws light on its evidentiary value :

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction, is relevant fact.

24. The testimony of PW4 Arvind Kumar Saini shows that he went to meet the complainant in the hospital after the incident on that day.

25. These evidences clearly shows that the complainant was assaulted by the accused on the date of incident. The complainant and the eyewitness have spoken about the assault by the accused. The prosecution has proved the FIR No. 08/2015 16/28 State vs Som Dutt MLCs and other medical reports of the complainant which corroborates the assault on him on record. The medical evidence thus shows the injuries upon the complainant to which I will come later. This corroborates the oral testimony of the complainant with the medical evidence. An important aspect of the testimonies of the witnesses referred above is that there are no confrontations of these witnesses except PW7 on material particulars with their previous statements to the police under Section 161 Cr.P.C. In other words, even according to the defence, these witnesses were consistent in their depositions.

26. Now coming to the defences. The first defence taken is that the MLC of the complainant has not been proved by the doctors, who examined the complainant. For this purpose the defence has relied upon the judgements of Surender and others vs State Crl.A.376/2003 dated 14.08.2013 and Rajesh @ Vimal Kumar and Anr. vs State 1995 III AD Delhi 343. I have gone through both these judgements. But they are of no help to the accused due to different facts of these cases distinguishable from this case.

27. The Hon'ble Delhi High Court in case of Rishi & Ors.

FIR No. 08/2015 17/28

State vs Som Dutt Vs State of NCT of Delhi CRL.A. No. 667 of 2008 dated 14.11.2014 has relied upon the testimony of the colleague doctors to prove the MLC. The relevant part of the judgment is "19.Ms. Isha Khanna, learned APP for the State drew the attention of this Court to a subsequent decision of this Court in Dharam Pal v. State 2013 (3) JCC 1873 where the decision in Ashok Kumar (supra) was distinguished by pointing out that in Ashok Kumar only a record clerk was examined whereas in the case before the Court in Dharam Pal, two doctors had been examined to prove the MLC in which the opinion on nature of injuries was recorded on the basis of the report of the Radiologist. In addition, Mr. Sud drew the attention of the Court in Laddan v. State 2014 (1) JCC 404 in which it was held that "Proving of MLC by a colleague doctor, who identifies the writing and signature of the doctor who had examined the patient or by an administrative staff of the hospital who had identified the signature of the doctor is sufficient and good proof and MLC cannot be doubted unless the tampering in the MLC be proved by the person alleging the tampering.

FIR No. 08/2015 18/28

State vs Som Dutt

20. In the present case, a perusal of the evidence of PW7 reveals that although the X ray plates were not produced, the original Xray reports were part of the record. shown to PW7 and he confirmed the opinion given by Radiologist Dr. Ashok Charan regarding fracture of the frontal parietal bone of Jai Ram and second left metacarpal bone of Abhay Ram. Going by the definition in Section 320 IPC, there can be no doubt at all that these were grievous injuries. The Court is inclined to adopt the reasoning in Dharam Pal. The decision in Ashok Kumar is distinguishable on facts."

28. In Rajesh Kumar @ Raju vs The State (Delhi Admn.) I(2007) DLT (CRL.)1041, 2007(2)JCC 933 the Hon'ble High Court of Delhi observed : "The plea that the MLC has not been proved must fail. A document can be proved by the author of document or any one else who can identify his signature. MLCs are recorded in the hospitals in the normal course of duties by the doctors who are there at the 'causalities'. The record of the injuries is prepared and FIR No. 08/2015 19/28 State vs Som Dutt documented only for the reason that it is not possible for any doctor to remember as to what were the injuries on the person of an injured after few days. A doctor has to examine, in causality several patients per day and in all medico legal cases, a record of injuries is prepared for use in the Courts. The doctor who prepares the record of injuries is normally called to prove the MLC in the Court during evidence which may be after a year or more of his examining the injured. A doctor cannot be expected to depose orally as to what were the injuries on the person of a patient. A doctor therefore speaks from the MLC. MLC is an authentic record of injuries which is prepared in regular course of business by the doctor present and can be safely relied upon by the Courts, even when the doctor is not examined in the Court and the record is proved by any other doctor or record keeper. Any person who alleges that the MLC i.e. the record of injuries produced in the Court was not authentic and there has been tampering with the record, has to show to the Court how tampering has been done. It cannot be expected from the hospitals to keep track of the doctors after the doctors leave the FIR No. 08/2015 20/28 State vs Som Dutt hospital. Neither it is necessary for a doctor to keep the hospital informed about his latest whereabouts. A doctor today working in AIIMS or SJ Hospital may tomorrow be working in Bangalore and next month may be away to any other country. Merely because doctor is not personally examined, the MLC cannot be disbelieved. Proving of MLCs by a colleague doctor who identifies the signatures of the doctor on MLC or by any administrative staff of the hospital or by any record keeper who identifies the signatures of the doctor on MLC, is a valid and good proof. MLC cannot be doubted unless tampering with MLC is proved by the person alleging tampering. When a medical man is examined to prove the MLC of a colleague, all questions regarding medical jurisprudence can be asked to him and when a clerk is examined and the accused wants to ask some questions about medical aspects, he can ask the court to summon some doctor from hospital who can answer the questions on the medical aspects of injuries, their nature, their impact on the body. It is not a legal requirement that the doctor who examined the plaintiff alone can answer such FIR No. 08/2015 21/28 State vs Som Dutt questions."

29. In the present case, the prosecution has examined Dr. Rajesh Solanki, who proved the MLC Ex.PW6/A, Dr. Tarun Sareen from the Department of Radiology, who proved the Xray report Ex.PW10/A and Dr. Kumar Suprshant, who proved the Medico Legal History of the injured Ex.PW11/A. All the three doctors have worked with the concerned doctors, who prepared these reports and identified their handwriting and signatures. In fact the Xray report is proved by a fellow doctor of the same department. Therefore, the MLC and Xray report are clearly proved on record.

30. The second defence is that there is a delay in registration of FIR. The incident is alleged to have taken place at around 08:00 pm on 10.01.2015 whereas the FIR was registered in the morning of 11.01.2015 at 07:30 am. The delay in the facts and circumstances of the case cannot be attributed to the complainant and therefore he should not suffer for that. It has come in the evidence of PW2 that he called the police immediately after the incident and after 15 20 minutes, the police had reached the spot and took the complainant to the hospital for his medical treatment. When the information was immediately given to the police, any FIR No. 08/2015 22/28 State vs Som Dutt further delay in the registration of the case is of no consequences to the defence particularly when the facts are straight and clear in this case and there is no allegation of any embellishment or improvement in the initial version of the incident. Further, the delay was explained by PW12 ASI Ajesh Kumar stating that the injured gave the statement at around 05:00 am on 11.01.2015.

31. The defence has also relied upon an overwriting in the date mentioned beneath the signature of the complaint Ex.PW1/A. However, the defence has not clarified from the complainant in his cross examination about this overwriting under his signature. This was clarified from ASI Ajesh Kumar, who shown his ignorance about the change of the date. The overwriting in the date of sending of the complaint in the rukka Ex.PW12/A at point C has been admitted by the witness ASI Ajesh Kumar and therefore both these overwriting for these reasons are inconsequential to the defence.

32. The defence has also argued that the prosecution alleges that the complainant was assaulted by a baseball bat but no such bat was recovered. This argument is not tenable because the non recovery of weapon is no ground FIR No. 08/2015 23/28 State vs Som Dutt to acquit the accused and if any accused is entitled to be acquitted on this ground then all the accused persons will arrange their acquittal after the commissioning the offence simply by destruction of the weapon of offence. No benefit can be given to the accused for the the lack of any serious investigation on this point. The accused was not arrested during investigation and therefore there was no sincere efforts on behalf of the police to recover that bat. Moreover, mere non recovery of weapon of offence is not a factor from which the accused can get any benefit when there are sufficient evidence on record against the accused. In Mohinder Vs. State, 2010 VII AD (Delhi) 645, it was held that nonrecovery of weapon of offence during investigation is not such an important factor to neutralise the direct evidence of complicity of accused in the murder of deceased.

33. Lastly, it has been argued that there are discrepancies in the medical records of the complainant. It has been argued by the defence counsels that the incident was of 10.11.2015 whereas in the document Ex.PW11/A, the date of admission is shown as 13.01.2015 and the date of discharge as 15.01.2015. Further, the complainant was referred for a repeat Xray vide his Xray report Ex.PW10/C FIR No. 08/2015 24/28 State vs Som Dutt and that it is not clear that what was the need for repeat X ray.

34. I have gone through all the medical records. As per MLC Ex.PW6/A, the complainant was examined in Hindu Rao Hospital on 10.01.2015 itself and his time of arrival was 9:00 pm. There were abrasions over chest, right side of neck and pain in left knee, left ankle and hand. The Xray report Ex.PW10/A dated 14.01.2015 proved by PW10 Dr. Tarun Sareen of Department of Radiology, shows a fracture of lower end of left fibula, which is bone of the leg below the knee joint. This witness has further said that the complainant was referred for repeat Xray vide report Ex.PW10/C. The reasons are not written on the report but he said that sometimes when the Xray report is not clear, Xrays are repeated. On 11.01.2015, only one Xray of left foot with ankle (AP and lateral view) was taken. He denied the suggestion that there was no fracture to the complainant. The additional view vide Ex.PW10/C was with respect to X ray chest (AP view), Xray left lower leg with ankle (AP and lateral view), Xray right hand (AP and oblique view). PW11 from Department of Orthopaedics has proved that the injury was grievous in view of the Xray report Ex.PW11/A connected to MLC Ex.PW6/A of the complainant. The FIR No. 08/2015 25/28 State vs Som Dutt defence has recalled the complainant for his examination to clarify his date of admission written on Ex.PW11/A as 13.01.2015. The witness has replied that after the assault, he was admitted in the hospital on the same night but he do not remember when he was discharged. He said that he remained in the hospital for 34 days. Similarly, PW2 deposed that his brother was discharged from hospital after 34 days. These witnesses were deposing after around three years of the incident and therefore if the complainant does not know the exact date of his discharge, it is inconsequential. The MLC shows that he was brought to the hospital on the same day. As per Ex.PW10/A, the Xray was done on 11.01.2015 and the report of Radiologist regarding fracture was given on 14.01.2015. The opinion that the nature of injury was grievous was given in Ex.PW1/A on 05.02.2015. Therefore, the result of first Xray showing fracture has already come on 14.01.2015 in Ex.PW10/A. I do not find any further result of additional views as mentioned in Ex.PW10/C. Therefore, it can be safely concluded that the complainant suffered a fracture in his fibula, which is a grievous injury being a fracture of a bone under section 320 IPC.

35. To finally conclude, there is no doubt that on FIR No. 08/2015 26/28 State vs Som Dutt 10.01.2015 at around 8 pm, the accused Som Dutt alongwith his 5060 supporters went to Flat No.13 where the complainant was present. The complainant was beaten and assaulted by the accused and his associates due to which he suffered grievous injury. The accused is charged under section 325/341/147 read with section 149 IPC. Causing a grievous hurt to some person without provocation is an offence punishable under section 325 IPC, which has been committed by the accused against the complainant. Section 341 IPC punishes the offence of wrongful restraint. The offence of wrongful restraint is not made out in this case as the complainant was not going anywhere and he was not restrained from proceeding in any direction. Further, section 147 IPC which punishes the offence of rioting also is not made out considering that the intention of accused was only to beat the complainant and no further. It is not clear that how many persons apart from the accused had assaulted the complainant and what was their common object, if any. In riot cases, there must be cogent and reliable evidence regarding specific parts played by accused persons. There is only one accused in this case who is sent for trial and there is no further evidence to establish whether there existed any common object of those persons, who had come with the accused. Therefore, those who assaulted the complainant cannot be termed as an unlawful assembly FIR No. 08/2015 27/28 State vs Som Dutt under section 141 IPC for want of any evidence of their common object.

36. To conclude, the prosecution has been able to prove its case beyond reasonable doubts. The accused Som Dutt is accordingly convicted for offence under section 325 of the Indian Penal Code.

37. List the matter for arguments on sentence.

Announced in the open court this 29th day of June 2019 [Samar Vishal] ACMMI/RACC/ND 29.06.2019 Digitally signed by SAMAR SAMAR VISHAL VISHAL Date:

2019.06.29 14:36:41 +0530 FIR No. 08/2015 28/28 State vs Som Dutt

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Delhi District Court

State vs . Som Dutt on 29 June, 2019