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Judgment
Mukta Gupta, J
Crl. M.A. No. 32974/2018 (Exemption)
Allowed, subject to all just exceptions.
Crl. M.A. No. 32973/2018 (Delay)
For the reasons stated in the application, delay of 14 days in filing the leave to appeal petition is condoned.
Application is disposed of.
CRL.L.P. 622/2018
Aggrieved by the judgment dated 17th May 2018, whereby the learned Additional Sessions Judge acquitted the respondents for the offences
punishable under Sections 325/34 IPC and additionally respondent no.1 was also acquitted for the offence punishable under Section 308/34 IPC, the
State has preferred the present leave petition.
Brief facts of the prosecution case are that on 15th October 2012 at about 1:15 P.M., ASI Gurvinder Singh Gill received a call regarding a quarrel
in front of Mosque and Guru Gobind Singh Hospital and recorded the same vide DD No.11B (Ex.PW-5/B). ASI Gurvinder Singh Gill along with Ct.
Deepak reached the spot where they came to know that the persons who were quarrelling, had already left the spot. Thereafter, on receipt of DD
No.5A (Ex.PW-7/B), ASI Gurvinder Singh Gill along with Ct. Deepak reached DDU Hospital where the victim Shakti had been admitted. The victim
was declared unfit for statement. On the basis of DD No.11B, FIR No. 397/12 was registered for offence punishable under Section 308/34 IPC at PS
Rajouri Garden.
On 17th October 2012, when Shakti Rana was declared fit for statement, his statement was recorded vide Ex.PW-4/F wherein he stated that on
14th October 2012 after drinking some liquor, he had gone to Ramu Ka Dhaba to eat. At about 11:30 P.M., when he was going out of the Dhaba at
Tagore Garden, one car was parked in front of the Dhaba in which the respondents were drinking liquor. Respondent no.1 called him and asked him to
sit in the car to go for a drive. Shakti Rana sat in the car and all of them went for a drive towards Guru Gobind Singh Hospital. Respondent no.1 was
sitting on the front seat along with respondent no.2 who was driving the car. Respondent no.1 gave him some liquor to drink. While on the drive, he
told the respondents to drop him home as it was already very late. When they stopped the vehicle near Masjid, Raghubir Nagar, Main Road,
respondent no.1 asked him to bring a packet of cigarettes when he informed them that he had no money and his purse was missing. Respondent no.1
then got angry and asked him that “tera purse kya humne nikala hai†and told the respondent no.2 and 3 to throw him out of the car. Respondent
no.1 then told respondent no.2 and 3 that he was the same person who had hit his brother a few months back, so they should take revenge from him.
Pursuant to this, all the respondents gave beatings with kicks and fist blows to the him. Before leaving the spot, respondent no.1 hit him with a
cemented brick on his head 2-3 times. Thereafter, all of them fled the spot. In the meanwhile, he received a phone call from his father and one public
person who answered his phone informed his father about the incident who then came to the spot and got him admitted in DDU Hospital.
Site plan of the spot was prepared vide Ex.PW-4/E at the instance of the Shakti Rana. The cement brick was seized vide seizure memo Ex.PW-
4/A. On 18th October, 2012, ASI Gurvinder Singh Gill along with Ct. Dharmender arrested the respondents vide Ex.PW-4/C1-C3, their personal
search was conducted vide Ex.PW-4/B1-B3 and their disclosure statements were recorded vide Ex.PW-4/D1-D3. The car bearing no. HR 26 S 7641,
used in the incident was taken into possession vide Ex.PW-6/A.
On completion of investigation chargesheet was filed. Charge was framed for offences punishable under Sections 325/34 IPC. Respondent no.1
was also charged for offences punishable under Sections 308/34 IPC.
Shakti Rana (PW-4), victim deposed in sync with his statement made before the police. He additionally stated that he did not hear his father’s
phone call and does not remember a public person answering his phone. He was informed of the same by his father later. In his cross examination he
stated that he was introduced to respondent no.2 by respondent no.1 and had met him 4-5 time prior to the incident. There were generally 10-15
vehicles outside the dhaba, but on the day of the incident only the car of the respondent was present outside the dhaba. He stated that he was not a
habitual drinker and does not remember that a case was registered against him for quarrelling after drinking in the year 2010. He also denied
registration of a case against him by his father in 2011 for drinking and quarrelling with him. He denied that FIR No.430/12 was registered against him
in the year 2012 for eve-teasing a girl.
Subhash Chand Rana (PW-1), father of the victim deposed that on the intervening night of 14th and 15th October 2012, his son had gone to eat at
the Dhaba of Ram Bhuj. When he did not return he called him and one public person picked up his phone and informed him that his son had been
assaulted and was lying in front of Guru Gobind Singh Hospital in a mosque in a bad condition. He along with his wife reached the spot and took his
son to DDU Hospital.
Learned Additional Sessions Judge acquitted the respondents on the ground that no eye-witness from ‘Ramu Ka Dhaba’ was examined who
had seen Shakti Rana arriving there at 11:00 P.M. and eating food. Neither was there any cash receipt to confirm the presence of the victim at
‘Ramu ka Dhaba’. The place of incident was about 5 minutes by car and 15 minutes by foot from ‘Ramu Ka Dhaba’. It was generally a
crowded place as it is surrounded by important landmarks like a Police Booth, Mosque, Guru Gobind Singh Hospital and the DDA Market. Public
person who answered the phone of Shakti Rana was not examined by the prosecution neither have their statements been recorded by the police.
Statement of the father of Shakti Rana was also not recorded by the police making his presence at the spot doubtful. The mobile number recorded in
the DD No.11B is that of the father of Shakti Rana. The information recorded in DD No.11B was not to the effect that the caller’s son was lying
injured on the spot above. Mother of Shakti Rana who was also presumably on the spot as per the testimony of Shakti Rana was not examined by the
prosecution. Moreover, the MLC also revealed that Shakti Rana smelled positive for alcohol and that he was ‘drowsy disoriented’. ASI
Gurvinder Singh Gill in his deposition stated that the statement of Shakti Rana was recorded at his house while in his cross-examination he stated that
he had recorded the statement of the victim at the spot.
Details of injuries as per the MLC were a) Swelling over left paritio ocipal region and b) Abrasion over right elbow at postior aspect which remain
unproved by the prosecution as Dr. Pavitra has not been examined and there is nothing in the testimony of Dr. Surender Sharma to show that she had
left the hospital and cannot be traced. No date was mentioned on the MLC. Shakti Rana claimed to have received three blows on his head by the
cemented brick from respondent no.1. No final opinion on the nature of injury was given as the MLC noted ‘nature of injury seems to be grievous,
however, final opinion has to be given by CMO’ but no such opinion was obtained.
ASI Gurvinder Singh Gill in his testimony admitted that he had arrested the victim in a Kalandra under Section 107/151 Cr.P.C. about a month
prior to his cross-examination dated 15th July 2017 regarding a dispute between the victim and his father. He also stated that the victim was a habitual
drinker and frequent complaints regarding him fighting in the locality with people were received at PS Rajouri Garden. However, the victim has not
offered any suitable explanation for the various cases that have been instituted against him one of them being by his father.
From the facts noted above findings of the learned Additional Sessions Judge, acquitting the respondents cannot be said to be perversewarranting
interference of this Court.
Leave to appeal petition is dismissed.