66# $' IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 533/2011 AKASH & ANR Petitioners Through: Mr. G.P. Thareja, Mr. L.D. Adlaldia and Mr. P.D. Adlakha, Advocates. versus GOVT OF NCT OF DELHI Respondent Through: Mr. Mukesh Gupta, APP with SI Dharmender Kumar, PS Burari, Delhi. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA ORDER % 29.11.2011 CrI. M.A. No. 18576/2011 (Exemption) Allowed, subject to all just exceptions. Crl. Rev. P. 533/2011 & CrI. M.A. No. 18575/2011 (Stay) By the presentpetitionthe Petitionershave challengedthe orderdated 18"" October,2011 directingframing of charge under Sections308/34 IPG against both the Petitioners. Learnedcounselfor the Petitionerscontendsthat the FIR was lodged afterfive days. Thereis only one injuryon the foreheaddue to hittingon the table and thus at best a charge under Section 323 or 324/34 IPG can be framedagainstthe Petitioners. The MLG ofthe injureddoes not corroborate CRL.REV.P.533/2011 Page 1 of5 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified the versionof the Complainant/injuredthat he was hit on the head with the brick. Further this statementof the complainantthat he was hit on the head by the brick is not supportedby the other witness. Hence the impugned order be set aside and the Petitioners be discharged for the offence. Briefly the case of the prosecutionis that on the complaintof one Sunil Kumar FIR No. 116/2.010under Section 308/34 IPG was registered at PS Burari against the Petitionersherein and one Naveen Kumar. The ComplainantSunil Kumar in his statementalleged that he was running a shop of electrical items and his wife was working in Tis Flazari Courts whom he was going to take on the 1'^ May, 2010 in the evening. Around 6.00 p.m. when he was on the MainRoad, Burariat BharatPetrolPump he was standinginthe line to take petrol. When his turn oftakingpetrolcame, the boy fillingup the petroldid not givehim and startedpouringthe petrolin anotherperson'smotorcycle. On this the complainantobjected. The other boy started abusing the Complainant.He also called one more friend and drag the Complainant from the motorcycle. While dragging the Complainantwas taken to the office at the pump where one man who was sittingbangedthe head ofthe Complainantwith the table with the resultthe glass broke. When he ran outsideto save himselfthose peopleshoutedand CRL.REV.P. 533/2011 Page 2 of 5 A stated that kill him, let him not run away. In the meanwhile, the person who had hit his head with the table picked up a brick and hit the same on his head. The Complainant fell down unconscious and a boy named Ravi staying in 14A Block, Kamalpur, picked him up, made him sit on one side and made a call to PGR. Though the incident is of the 1^^ May, 2010, it may be noted that initially the Complainant was declared unfit for statement and after he was dischargedfrom the TraumaCentreon 2"^" May, 2010 he came to the police stationon 5^'^ May, 2010 and got his statementrecorded. This versionofthe Complainant is supported by the statement of witness Ravi Kumar who had picked him up on falling unconscious and informed the PCR. Ravi Kumar has reiteratedthe version of the Complainantand has stated that there was an altercationbetween the employees filling up the petrol, thereafter all the employeesof the petrol pump got collectedand few employeestook him inside the office where the person sitting in the office assaulted the Complainant.The Complainant came out running when out of the same boys/employees, one employee picked up a brick from near the office and hit on the head of the Complainantresulting in the complainantfalling down. CRL.REV.P.533/2011 Page3 of5 I Learned counsel for the Petitioners has laid emphasis on the issue that the only injuryon the complainantwas on the foreheadwhichwas as a result ofbanginghis head with the glass table and consequentto the assaultby the brick, the MLC does not show any coiTespondinginjury. A perusalofthe statementofthe eye witnessand the Complainantshowsthat the head ofthe Complainantwas first banged with the glass table with the resultthe glass broke and thereafteron an exhortationto kill, a brick was hit on the head. As per the MLC there was a laceratedwound on the forehead4x.5 cm and tendernessoverthe upperchestregion. Whetherthis laceratedwoundis as a resultofbangingthe head on the glasstable or by the brickis an issue to be decided after the evidence is adduced by the prosecution. An injury by hittingwith the glass table carmotbe termedto be merely an offenceunder Section 324 IPC because the impact of the injury was such that the glass brokeand itwas givenat the vitalpartofthe body. Furtherthe injuryon the head by a brickmay not resultin any externalinjurybut certainlyamounts to causing the injury with the intentionof causing culpable homicidenot amountingto murder. I also find no merit in the contentionof the leained counsel for the Petitioners that since the statement of the injured was recordedbelatedly no reliance can be placed on the same. CRL.REV.P. 533/2011 Page 4 of 5 The intention of the Petitioners was writ large as when the Complainanttried to save himselfand came out of the office of the petrol pump he was givena brickblow bythe accusedby extortingwords 'isejaan se maro, bhagnematdo'. I find no infirmityin the impugnedorder. Petition is dismissed. MUKTA GUPTA, J. NOVEMBER 29, 2011 'vn' CRL.REVP.533/2011 Page5of5