Delhi District Court
State vs . : Ashwani Kumar on 28 July, 2014
IN THE COURT OF SHRI SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI State Vs. : Ashwani Kumar FIR No. : 211/2008 U/s : 323/341 IPC PS : Paharganj Unique I.D. No. : 02401R1345072008 Date of Institution : 14.11.2008 Date of Judgment reserved on : 01.07.2014 Date of Judgment : 28.07.2014 Brief details of the case A. Sl. No. of the case 000165/P B. Offence complained of or proved U/s 323/341 IPC C. Date of Offence 14.08.2008 D. Name of the complainant Sh. Pawan Kalra S/o Sh. Virender Kr. Kalra R/o B-2, Takshila Apartments, I.P.Extn., Patparganj, Delhi E. Name of the accused Ashwani Kumar S/o Sh. Shiv Nath R/o 2327/82, Katra Madan Mohan, Gali Nalwa, Paharganj, New Delhi F. Plea of the accused Pleaded not guilty G. Final order Convicted H. Date of Order 28.07.2014 Judgment On the accusation of wrongfully restraining Sh. Pawan Kalra (hereinafter referred to as ' complainant' ) and voluntarily causing hurt to him, accused Ashwani Kumar was sent up for trial for committing offences FIR No.211/2008 State Vs Ashwani Kumar Page 1 of 12 punishable under Section 323/341 IPC.
Brief facts as unfolded during trial
2. The facts as disclosed in the charge-sheet suggest that it is a case of road-rage. The case of prosecution is that, on 14.08.2008, at around 02.00 PM, at the corner of a Street at Chuna Mandi, near Anoop Hotel, Paharganj, New Delhi, while complainant (PW-1) was returning back to his residence on his Alto Car bearing registration No. DL-TCB-8323, accused, who was driving a Bullet Motorcycle bearing registration No. DL-6S-5413, picked up a quarrel with him over the issue that his motorcycle has been hit by the car from the rear side. Complainant tried to persuade the accused but he was not willing to listen. He got down from his motorcycle and slapped the complainant. He gave number of fist-blows to the complainant and thereafter forcibly made him sit inside his car and disappeared from the spot. In the meantime, Ct. Dinesh Kumar (PW-4), who was returning from Police Post Sangatrashan, met the complainant and took him to Lady Harding Hospital. HC Ranvir (PW-7), who was posted as Duty Constable at Lady Harding Hospital, conveyed the information to PS Paharganj and after receiving this information, HC Sudesh Pal (PW-3) alongwith SI Ramjeet Singh reached hospital and collected the MLC of complainant. Statement of complainant was recorded and present FIR bearing No. 211/2008 under Section 323/341 IPC was registered by Duty Officer/HC Shailesh Kumar (PW-2).
3. Necessary investigation was carried and requisite documentation was done. Accused was arrested and subsequently released on bail as the FIR No.211/2008 State Vs Ashwani Kumar Page 2 of 12 offences were bailable. Statement of witnesses were recorded and on completion of investigation, charge-sheet was put to the Court. Copies of charge-sheet were supplied to the accused and charge under Section 323/341 IPC was framed against him to which he pleaded ' not guilty' and claimed trial.
Witnesses examined
4. Seven prosecution witnesses were examined.
Eye witness PW-1 Pawan Kumar Kalra (Complainant) gave a detailed account of the incident. He deposed that accused slapped him twice while he was sitting in his car. He stated that after he came out of his car, accused grabbed his collar and gave beating to him. He mentioned that he was brutally beaten by the accused.
Formal Witnesses PW-2 HC Shailesh Kumar (Duty Officer) mentioned about the registration of FIR. Copy of FIR is Ex.PW-2/A. PW-5 HC Sumer Singh (Witness of arrest) mentioned that accused was arrested on 17.08.2008 vide memo (Ex.PW-8/A).
PW-7 HC Ranvir (Duty Constable, LHMC) stated that Ct. Dinesh brought the complainant to the hospital and this information was conveyed by him to PS Paharganj.
Medical Witness PW-6 Naresh Kumar (Record Clerk, LHMC) produced the MLC of complainant. He identified the signature of Dr. Neetu Beetan as well as Dr. FIR No.211/2008 State Vs Ashwani Kumar Page 3 of 12 Himanshu on the MLC (Ex.PW-6/A) mentioning that both the doctors have left the service.
Witnesses of investigation PW-3 HC Sudesh Pal (Police official who accompanied IO/SI Ramjeet to the hospital) stated that after reaching hospital, SI Ramjeet Singh collected the MLC of complainant and recorded his statement.
PW-4 Ct. Dinesh Kumar (Police official who took the complainant to hospital) mentioned that complainant met him at Chuna Mandi, Paharganj and narrated the entire incident. He stated that he took the complainant to Lady Harding Hospital.
During trial, IO/SI Ramjeet Singh expired and his name was deleted from the list of witnesses.
5. Accused was examined under Section 313 Cr. PC wherein he denied the incident as well as his presence at the spot. He stated that he has been falsely implicated in the present. He chose not to examine any witness in his defence.
Arguments
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. Defence Counsel has argued that testimony of complainant contains various material improvements and it is not reliable. He has argued that there is an inordinate delay in registration of FIR which creates doubt. He has argued that no independent witness has been joined during investigation. FIR No.211/2008 State Vs Ashwani Kumar Page 4 of 12
8. On the other hand, Ld. APP has argued that prosecution' s case stands proved beyond reasonable doubt. He has contended that complainant is a victim of crime and his testimony can not be doubted merely because of some minor variations. He has argued that the medical evidence corroborates the version of complainant and there is no rule of evidence that the sole testimony of witness can not form the basis of conviction.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
10. The main evidence on record is the testimony of complainant. In fact, the entire case of prosecution rests upon the testimony of this witness. Ld. Defence Counsel has challenged the testimony of complainant on two aspects. Firstly on the ground that it contains contradictions and secondly, on the ground that he has not given any plausible explanation for the delay in making his statement to the police. On the other hand, Ld. APP has countered this argument arguing that there are minor contradictions in the testimony of complainant. He has argued that the purported improvements in the testimony can not form a basis for discarding the testimony of complainant and the medical evidence can not be ignored. Let us peruse the testimony of complainant in the light of these submissions. Complainant (PW-1) mentioned that on 14.08.2008, while he was passing from the road in front of Arya Samaj Mandir, accused came in front of his car and stopped his motorcycle. He stated that after stopping his motorcycle, accused started questioning that whether he is going to hit him. He mentioned that instead of listening to his explanation, FIR No.211/2008 State Vs Ashwani Kumar Page 5 of 12 accused slapped him twice. He stated that even after this, he tried to pacify the accused but he grabbed his collar and pushed him. He mentioned that accused continuously kept hitting him for five minutes and he started bleeding from his nose. After stating these facts, complainant introduced certain new facts. He stated that after recomposing himself, he went to a shop near the spot and demanded a pen from the shopkeeper but accused dragged him out of the shop and threatened him stating that he should run away from the spot if he wants to stay alive. He stated that after this, he collected his broken glasses and broken phone and again sat in his car. He mentioned that while he was leaving the spot on his car, accused picked up a big stone from the spot and threw it on the rear glass of his car because of which the rear glass window was damaged. He mentioned that identity of accused was disclosed to him by a person who met him at the spot. He mentioned that after the incident, he went to the police station Paharganj and lodged report against the accused. It is his stand that thereafter, he was taken to Lady Harding Hospital where he received treatment for the injuries suffered by him.
11. The argument of defence that there are improvements in the testimony of complainant can not be rejected out-rightly. Record shows that complainant has mentioned certain facts which were not mentioned by him in his earlier statement recorded by the police. Now, the question which is to be asked is whether the entire evidence on record should be discarded because of the said reason? The answer to my mind is negative. On comparing the deposition of complainant made in the court and his earlier statement, it is FIR No.211/2008 State Vs Ashwani Kumar Page 6 of 12 found that certain events which have been narrated by him while deposing in the court were not recorded in the statement under Section 161 Cr.P.C. However, it can not be concluded that complainant has not supported his case. He mentioned the manner in which the altercation took place between him and accused. His testimony inspires confidence that he has narrated true facts. He stated that accused slapped him twice while he was sitting in his car and when he came out to pacify the accused, he grabbed his collar and kept hitting him continuously for five minutes. He stated that he sustained injuries around his eyes and on his face. His said testimony finds corroboration from the medical evidence. MLC of the complainant is Ex.PW-6/A. In the said MLC, there is an endorsement by the concerned doctor that complainant gave a history of assault to the doctor. The injuries as observed by the doctor, who examined him, corroborates his version about the manner in which he was assaulted by the accused.
12. Record shows that the incident took place on 14.08.2008 while the witness stepped into the witness box on 22.05.2010. There is an intervening gap of about two years. The testimony of complainant is to be appreciated in the light of this fact. It is not expected from a witness to repeat in verbatim his earlier statement which was recorded by the police. Variations are bound to creep in the statement made in the court and the one recorded by the police because of the time gap. Moreover, the testimony of a witness can not be rejected because the police officials have not recorded the detailed facts narrated by the witness. It is only expected from a victim to give broad outline FIR No.211/2008 State Vs Ashwani Kumar Page 7 of 12 of the incident at the time of lodging his report with the police. In case, he fails to given a detailed narration of the incident to the police or the detailed narration is not recorded by the police, then, it would be unfair to discard his testimony or disbelieve him because of the said reason. Complainant stepped into the witness box and gave a detailed account of the incident. Although, he was cross examined at length by the Ld. Defence Counsel on the aspect of variations in his statements but his testimony that accused slapped him and kept continuously hitting him for five minutes has remained un-impeached.
13. Police officials have deposed about the investigation part. Ct. Dinesh (PW-4) stated that he was passing from the spot while returning from Police Post Sangatrashan. He stated that complainant met him at the spot and told him that accused has assaulted him. He stated that complainant also told him that accused has fled away towards Chuna Mandi, Paharganj. He mentioned that efforts were made to trace the accused but he could not be found. He mentioned that he took the complainant to Lady Harding Hospital and deposed about the arrival of SI Ramjeet Singh and Ct. Sumer. He mentioned that SI Ramjeet Singh and Ct. Sumer arrived at the hospital and recorded the statement of complainant.
14. Record shows that accused has given an evasive reply to the questions put to him in his statement recorded under Section 313 Cr.P.C. Admittedly, the burden of establishing its case, rests upon the prosecution. The prosecution is duty bound to establish its case by leading independent and cogent evidence but the provision of Section 313 Cr.P.C are not a mere FIR No.211/2008 State Vs Ashwani Kumar Page 8 of 12 formality. It provides an opportunity to the accused to explain the incriminating evidence which have come against him during trial. Accused mentioned in his statement that he was summoned to the police station and at that time, complainant was also present over there. He stated that at that time, he observed that complainant had sustained some injuries but those injuries were not caused by him. He mentioned that complainant has wrongly deposed against him at the instance of police officials. The evasive reply of accused coupled with the medical evidence and the statement of complainant lead to inevitable conclusion that charges under Section 323/341 IPC have been established. Admittedly, complainant was not known to the accused. There is no allegation or averment about any previous rivalry between the parties. No suggestion in this regard has been put to the complainant. In such circumstances, I fail to understand as to why the complainant would take pains to get a false case registered against the accused or depose falsely against him. Although his version contains certain variations but I am convinced that he has narrated true facts. I am convinced from the record that on 14.08.2008 at around 02.00 PM, at the corner of a street of Chuna Mandi, near Anoop Hotel, accused wrongfully restrained the complainant and voluntarily caused simple hurt to him. Charges under Section 323/341 IPC stand established. Accordingly, accused Ashwani Kumar stands convicted for committing the said offences.
15. Be heard separately on point of sentence.
FIR No.211/2008 State Vs Ashwani Kumar Page 9 of 12
Announced in the open court (SUDHANSHU KAUSHIK) on 28.07.2014 ACMM-01/(CENTRAL)/DELHI
It is certified that this judgment contains 12 (twelve) pages and each page bears my signature.
(SUDHANSHU KAUSHIK) ACMM-01/(CENTRAL)/DELHI FIR No.211/2008 State Vs Ashwani Kumar Page 10 of 12