Delhi District Court
In Shivappa vs . State Of Karnataka, Air 2008 Sc 1860, ... on 15 July, 2020
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-07, WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE
VERSUS
ANMOL MALHOTRA
Computer ID No.63963/2016
FIR No. 154/2013
P.S. Tilak Nagar
U/S 325 IPC
Sh. Kartik Pahwa
S/o Smt. Sushma Rani
R/o H- 20, 1st Floor, Gali No.11
New Mahaveer Nagar, Tilak Nagar,
New Delhi. ... Complainant
VERSUS
Anmol Malhotra
S/o Sh. Naveen Malhotra
R/o H- 20, 2nd Floor, Gali No.11
New, Mahaveer Nagar, Tilak Nagar, New Delhi. ...Accused
Date of Institution : 22.05.2013
Date on which judgment was reserved : 09.07.2020
Date of judgment : 15.07.2020
Final Order : Convicted
JUDGMENT
The important facts of the present case are as follows :-
1. In the instant case, accused namely Anmol Malhotra has been set up by the prosecution to face trial on the allegations that on 24.02.2013, at about 10:00 pm, in front of House No. H-20, Mahavir Nagar, Tilak Nagar, New Delhi, the accused had voluntarily caused grievous hurt to complainant namely Sh. Kartik Pahwa and therefore, committed an offence u/s 325 IPC.
2. The FIR was lodged at the instance of complainant Sh. Kartik Pahwa against the accused by name in respect of offences punishable u/s 325 IPC.
On conclusion of investigation, challan u/s 173 Cr. P.C was filed against the accused Anmol Malhotra u/s 325 IPC.
3. Cognizance was taken against the accused by the then Ld. MM- 05 on 22.05.2013 and the accused was summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr. P.C vide order dated 18.05.2015, charges u/s 325 IPC was framed against the accused Anmol Malhotra s/o Sh. Naveen Malhotra by the then Ld. MM-05, to which the accused pleaded not guilty and claimed trial.
4. Thereafter, the matter was fixed for prosecution evidence. The prosecution examined 8 witnesses to bring home the guilt of the accused.
5. PW-1/injured namely Kartik Pahwa has deposed that on 24.02.2013 at about 10:00 PM, when he was standing along with his mother at his residence, the accused Anmol came there and parked his bike. He deposed that at that time, his mother had requested the accused to park the bike on a side so that they can easily come and go from their house. Upon this, the accused told the mother of PW-1 that he would park his bike at his own will and started to quarrel with his mother. In the meanwhile, the mother of the accused Anmol had also come downstairs and she told the accused that PW-1 and his family members are mad persons and there was no need to listen to them. It was the version of PW-1 that at that time, the accused suddenly gave a fist blow to him on his mouth and the same resulted in injuries on his upper lip and his front upper teeth also got dislocated/ broken due to the said blow. Thereafter, the neighbours, who had gathered at the spot, saved PW-1 from the clutches of the accused and the accused was taken to DDU Hospital for medical treatment by the police officials who had been called to the spot. PW-1 proved his statement given to the police during the course of the investigation (Ex.PW-1/A). PW-1 correctly identified the accused during his testimony. In his cross-examination, PW-1 deposed that he and the accused are residing in the same building and that there is a common entrance gate to the said building. He deposed that on the day of the incident, his mother had not made any conversations with any residents of the locality with regard to the parking of the vehicle on the side of the gate as everyone had parked their vehicles in a proper manner. PW-1 categorically negated the suggestion of the accused to the effect that he had slapped the mother of the accused on the day of the incident and that a scuffle took place due to the said reason and therefore, he had fell down when the public persons were trying to separate him and the accused during the scuffle. PW-1 also negated the suggestion of the accused that he had filed a false complaint against the accused as the mother of the accused had along with other neighbours had made several complaints against the mother of the complainant. However, PW-1 admitted the fact that the mother of the accused was also taken along with him to the DDU hospital. However, PW-1 denied the fact that mother of the accused had received injuries during the scuffle.
6. PW-2/mother of the injured namely Smt. Sushma Rani deposed that on 24.02.2013 at about 10:00 PM, she along with her son were standing in front of her house. At that time, the accused came there and parked his bike under the stairs. Thereafter, PW-2 requested the accused to park his bike on the side as they used to pass from the said passage to go to their house. Upon this, accused started to quarrel with her and after sometime, the mother of the accused also came downstairs and told the accused that she and her family members were mad persons and there was no need to listen to them. Thereafter, the accused namely Anmol gave a fist blow to the son of PW-2 on his mouth as the son of PW-2 had asked the accused to talk in a proper manner. Thereafter, the neighbourers, who had gathered at the spot had taken the son of PW-2 to the hospital. She deposed that the upper teeth of his son got dislocated due to the fist blows given by the accused. In her cross-examination, PW-2 admitted the fact that there is a common entrance gate and the vehicle of only one resident apartment is parked at the spot. She categorically negated the suggestion of the accused to the effect that she had quarrel with the mother of the accused prior to the incident and that on the day of the incident, she had along with her son were having talks with the mother of the accused. She also negated the suggestion of the accused that the scuffle ensued between the accused and her son when her son/PW-1 had slapped the mother of the accused and during that scuffle, her son/ injured had fallen down and had sustained injuries.
7. PW-3/HC Jitender Kumar deposed that on 21.03.2013, the IO had arrested the accused in his presence. He proved the arrest memo of accused Ex.PW-3/A, personal search memo of the accused Ex.PW-3/B, disclosure statement of the accused Ex.PW-3/C and his statement under section 161 Cr. PC recorded by the IO (Ex.PW-3/D). PW-3 was not cross examined by the accused despite opportunity.
8. PW-4/ HC Sanjay Kumar proved the FIR of the instant case. The copy of the FIR bearing No.154/13, PS Tilak Nagar is Ex. PW-4/A. PW-4 also proved the endorsement made by him on the rukka (Ex.PW-4/B) and the certificate of under section 65B of Indian Evidence Act (Ex.PW-4/C).
9. PW-5/ Dr. Babita, SMO, Radiology, DDU Hospital, Hari Nagar proved the X-Ray reports of the injured Kartik Pahwa in respect of the MLC bearing No.4554. The said reports are Ex.PW-5/A and Ex.PW-5/B. PW-5 was not cross examined by accused despite opportunity.
10. PW-6/IO/ ASI Sheel Kumar deposed that on 24.02.2013, he had gone to the spot i.e. H.No.20, New Mahaveer Nagar, 2nd Floor, Delhi on receiving a DD bearing No.42A. He deposed that when he had reached the spot, he saw that public persons had gathered at the spot and there, he had met the injured Kartik Pahwa, who had told him regarding the fact that the incident took place in the front of his house near stairs and that the accused Anmol had given fist blows on his face and had caused injuries to him. He further deposed that on the basis of the statement of injured Kartik Pahwa, he had prepared a rukka (Ex.PW-6/A) and had got the FIR registered through Ct. Jitender. Thereafter, he had gone to DDU hospital along with the injured and the other persons. He deposed that on 21.03.2013, he had obtained the results of the MLC of injured Kartik Pahwa in which the nature of injuries was shown to the grievous. He proved the site plan (Ex.PW-6/B), which was prepared by him at the instance of the injured Kartik Pahwa. PW-6 proved the arrest memo of the accused (Ex.PW-3/A) and the personal search memo of the accused (Ex.PW-3/B) and the disclosure statement of the accused (Ex.PW-3/C). In his cross-examination, PW-6 deposed that he had prepared the site plan on his own and that he had arrested the accused at the spot in the presence of the complainant and his mother. PW-6 deposed that he does not remember whether on the day of incident, any MLC of the mother of the accused was also prepared or not. PW-6 negated the suggestions of the accused to the effect that he had not conducted the investigations of the instant FIR in a fair manner.
11. PW-7/ Dr. Priya, Jr. Resident Doctor, DDU Hospital proved the MLC bearing No.4554 dated 25.02.2013 of injured Kartik Pahwa. The said MLC is Ex.PW-7/A. In her cross-examination, PW-7 deposed that there was a fracture on the tooth and there was no dismantling of the tooth and thus, there was no blood on the tooth area.
12. PW-8/ Sh. Deshraj, Record Clerk, DDU Hospital identified the signatures and handwriting of Dr. Tanuj, the then Sr. Resident doctor, who had given his opinion on the MLC bearing No.4554 of the injured Kartik Pahwa. The said report is Ex.PW-8/A.
13. Thereafter, vide proceedings conducted under section 294 Cr .P.C, the accused had admitted the genuineness of the DD Entry No. 42A and therefore, the concerned DD writer was dropped from the list of witnesses. Subsequently, the PE was directed to be closed at the request of Ld. APP for the State as all the relevant prosecution witnesses had been examined and the matter was proceeded for recording the statement of accused recorded u/s 313 Cr. P.C. In his statement under section 313 Cr. P.C, the accused denied all the allegations and pleaded innocence. The accused submitted that on the day of the alleged incident, a verbal duel took place between him and mother of the complainant/injured. He submitted that on the said day, the injured Kartik Pahwa had pounced upon him and his mother and therefore, in order to save himself and his mother, the accused had pushed the injured and in that process, the injured/ complainant received injuries as he had fell upon a parked car. He submitted that he wished to lead Defence Evidence and therefore, the matter was fixed for leading DE.
14. The accused choose to examine himself as sole defence witness. DW-1/accused deposed that in the month of February 2013 at about 10:00 PM, he came back to his house and had parked his bike at the share parking space. He deposed that due to the same, the passage/stairs to the house of the complainant as well as his house got narrowed and therefore, the mother of the complainant objected to the same. Thereafter, some verbal altercations took place between the accused and the mother of the complainant. Thereafter, the mother of the accused came down stairs and at that time, the mother of the complainant/Smt. Sushma Rani had slapped his mother. He deposed that at that time, the injured/complainant, who was standing at the place of the incident, had suddenly approached him and his mother. At that time, he pushed the complainant/injured in self-defence and the same resulted in causing injuries to the complainant as the complainant had fell down and had hit the bumper of one of the cars standing there. He deposed that at that time, no blood was oozing out from the body of the complainant/injured. DW-1 also brought on record the MLC of his mother Ex.DW-1/A. It was the version of DW-1 that he had disclosed the entire facts to the IO. However, the IO failed to investigate in a fair and free manner and the IO also refused to take on record, the MLC of his mother. In his cross examination, DW-1 deposed that he had filed a written complaint against the complainant and his mother for the assault done by them to his mother, however, the IO failed to file any report regarding the same. DW-1 admitted the fact that he was not having any documentary proof to show/prove the fact that he had filed any such complaint against the complainant to the IO on the day of the incident. DW-1 negated the suggestion of Ld. APP for the State that on the day of the incident, he had punched on the nose of the injured/complainant and that he had concocted false story in order to save himself from possible conviction.
15. After his examination as a defence witness, the accused choose to close DE. Therefore, DE was directed to be closed and the matter was fixed for addressing Final arguments.
16. I have heard the submissions addressed by the Learned APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
17. While opening the arguments, Ld. APP for the state submitted that the star witness of the prosecution/complainant/injured/PW1 namely Sh. Kartik Pahwa examined during trial, has fully supported the case of prosecution on all material points. Ld. APP has referred to the testimony of PW1 along with the MLC of the injured/Complainant Ex.PW7/A, in support of the said contention. She further submits that the mother of the injured/ PW2, who was also present at the time of the incident, has fully corroborated the testimony of PW1 on all the material points. She has argued that nothing has come on record to show that there was any previous enmity between the accused and the complainant/injured and therefore, there is no possibility of any false implication in this case. On the strength of these arguments, she has argued that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt and accordingly, she has prayed for conviction of the accused.
18. On the other hand, Ld. defence counsel argued that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. He argued that apart from the complainant/injured and his mother, who is an interested witness, the prosecution failed to examine any other public person/ independent witness in support of its case. During of the course of the final arguments, Ld. Defence counsel has fairly admitted the fact that as alleged by the prosecution, a scuffle had indeed took place between the accused and the injured/ complainant. He, however, submits that the injuries, allegedly inflicted on the person of the accused, were not intentionally inflicted by the accused but they were suffered by the complainant, when he was pushed by the accused in self-defence. He further argued that the prosecution version that the injuries suffered by the accused were grievous in nature has not been proved on record. At the same time, he has contended that assuming, but not conceding, to the fact that the accused had inflicted injuries on the person of the complainant/PW1, the same were a result of the grave and sudden provocation which emanated from the complainant's side, the moment, the accused saw the mother of the complainant/ PW2 had slapped his mother. Ld. Defence counsel submitted that the version of events, as has been deposed by the complainant/ injured/PW1 cannot be taken as a gospel truth and the same ought not to be accepted at it face value. Ld. Defence counsel argued that the complainant has deliberately and intentionally improved his version at the time of his deposition in court to falsely implicate the accused. On the strength of the aforesaid submissions, Ld. defence counsel argued that reasonable doubt has been created in the case of prosecution qua the accused and the same will inexorably result in acquittal of the accused in respect of offence punishable under section 325 IPC.
19. In the instant case, it is incumbent upon the prosecution to prove that:
(i) the accused had voluntarily caused bodily pain, disease or infirmity to the Complainant;
(ii) that the injury caused by the accused to the injured was 'Grievous' in nature as defined under section 320 IPC.
20. In the instant case, apart from the injured/complainant/PW1 namely Sh. Kartik Pahwa and his mother/ PW2, the other cited prosecution witnesses were related to the investigation of the present case. Thus, the only issue which arises for consideration is that whether the testimony of the injured/ complainant Sh. Kartik Pahwa/ PW1 and his mother/ PW2 are worthy of credence and can be relied upon by the prosecution for bringing home the guilt of the accused.
21. PW1/Injured is the informant of the case and his version is not a deviation from the facts divulged in his complaint Ex. PW1/A except a few minor discrepancies. Though, Ld. Counsel for the accused has vociferously argued that there are material contradiction(s) in the testimony of the complainant/ PW1 and the same goes to the root of the case, however, in my opinion, the alleged discrepancies in the testimony of PW1, cannot be considered as material discrepancy(s). The alleged discrepancies are trivial in nature and cannot be considered as material. At the same time, despite extensive cross-examination, nothing has been elicited from the mouth of PW1 by the accused, which could throw doubts on the credibility of PW1. In Shivappa Vs. State of Karnataka, AIR 2008 SC 1860, the Hon'ble Supreme Court of India held that the minor discrepancies or some improvements also would not justify rejection of testimonies of the eye witness if they are otherwise reliable. Some discrepancies are bound to occur because of the social background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in the court. At the same time, in my opinion, the evidence of PW1 is reliable and trustworthy, especially in view of the fact that PW1 is an injured witness and it is a settled law that evidence of an injured eye witness stands on a higher pedestal. Medical document (MLC of the injured Ex. PW7/A) also supports the version of Complainant/injured/PW1 regarding the nature of injuries. MLC of injured/complainant shows that there was a fracture in one of his tooth and the nature of the injuries has been opined as 'grievous'. At the same time, nothing came on record to shatter testimony of PW 1 on material aspects.
22. In "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in "Vadivelu Thevar vs State of Madras" 1957 SER 981 wherein it was observed by the Hon'ble Court as under:-
1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
23. Thus, the Hon'ble Supreme Court has held that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
24. In case titled as "Shadab @ Shamshad vs State of Govt. of NCT of Delhi", Criminal Appeal 1377/2012 decided on 11.03.2014 it was held by the Hon'ble High Court of Delhi, "There is no hard and fast rule that the testimony of injured requires corroboration before conviction. However, the rule of prudence has to be kept in mind. If the testimony of injured is trustworthy, categorically free of bias, and if there is nothing on record to suggest that the injured has any motive to falsely implicate the accused and allow his real assailants go scot free, the conviction can be based on the sole testimony of injured."
25. In the case at hand, the testimony of the sole eye witness / injured PW-1 has given a trustworthy and reliable account of the incident and defence has not been able to impeach his credibility. There is no reason to disbelieve the testimony of PW-1. The testimony of the complainant/PW1 has ring of truth and is cogent, credible and trustworthy. At the same time, PW2/ mother of the injured/ complainant, who admittedly, was also present at the spot, has deposed on same lines as PW1 and has corroborated the testimony of PW1 on all the material aspects. Therefore, the court is of the view that no further corroboration is required.
26. Now coming to the other leg of defence of the accused to the effect that under the circumstances of the case, the complainant/injured and his mother were very much responsible for causing grave and sudden provocation to the accused. It was argued on behalf of the accused at the stage of the final arguments that as was deposed by the accused as a defence witness (DW1), the scuffle in question between the accused and the complainant/ injured took place after the mother of the complainant/ injured had slapped the mother of the accused. It was contended on behalf of the accused that this incident of slapping the mother of the accused was such that the accused could get a grave provocation, and thus, in such a case, the accused was entitled to the benefit of the defence of Grave and sudden provocation. It was argued by Ld. Defence counsel that as the occurrence has taken place out of sudden provocation and so, the ingredients of Section 335 IPC alone are made out and the same would inexorably result in acquittal of the accused in respect of offence punishable under section 325 IPC.
27. Before, adverting to discuss the above stated defence of the accused, so as to find out as to whether the offence attracted is under Section 325 IPC or under section 335 IPC, it is proper to incorporate section 335 IPC, as follows:
"Section 335: Voluntarily causing grievous hurt on provocation:
Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both.
Explanation: The last two sections are subject to same provisos as Exception 1, section 300."
28. As far as the plea regarding sudden provocation and maximum case under Section 335 IPC is made out against the accused is concerned, I do not agree with the contention of learned defence counsel in this regard. The accused has not taken this plea since beginning. The whole burden was lying upon the accused to prove this plea. It was his duty to put suggestions to the witnesses of fact, especially, PW1 and PW2, that the crime was committed by him due to sudden and grave provocation done by the complainant/ injured or his mother. He has not taken this plea in his statement recorded u/s 313 Cr. P.C., no defence evidence has been produced in this regard and now this plea was taken for the first time, during the course of the Final arguments. At the same time, it is pertinent to mention here that, the defence of the accused which could be deciphered from the cross examination of the prosecution witnesses was that the injured/ complainant had entered into an scuffle with the accused and when the persons, who were present at the spot, had tried to separate the accused and the complainant, the complainant had fallen down and had received injuries. Thus, the defence of accused was that the injuries were not intentional but accidental in nature. Similarly, at the stage of recording of plea at the stage of section 313 Cr. P.C., statement, the accused again reiterated that the injuries received by the complainant/ injured were accidental in nature. Further there was nothing on the part of injured Kartik Pahwa, by which the accused was deprived of the power of self-control by grave and sudden provocation. To take the benefit of plea of grave and sudden provocation, it has to be proved by the accused himself through the evidence of prosecution witnesses or his defence witnesses that the act of the injured was such which caused such provocation to the accused to constitute that offence and this provocation should be such as to cause a reasonable man to loose his power of self-control and should have actually caused in the accused a sudden and temporary loss of self-control. Provocation is an external stimulus which can be objectively gauged but loss of self-control is a subjective phenomenon and can be inferred from the surrounding circumstances, the manner in which the accused reacted to the circumstances and accused's own description of his mind which can be verified with reference to relevant objective facts by the court imaginatively reconstructing the psychological situation in which the accused found himself. The applicability of the doctrine of provocation, thus, rests on the fact that it brings about a sudden and temporary loss of self-control. Each little provocation cannot be called grave simply because the consequences ensuing from that provocation have been grave. The provocation must be such as will upset not merely a hasty, hot tempered and hyper-sensitive person but would upset also a person of ordinary sense and calmness. In the absence of such proof the atrocity of the offence will not be mitigated and the offender will not be able to escape the legal consequences of his act. In this case in a very ordinary way, altercations/ arguments had taken place between the injured Kartik Pahwa and his mother on one hand and accused and his mother on the other hand. This was not the matter which might cause any provocation to the accused to inflict fist blow(s) on the mouth and cause type of injury to the injured/ complainant. The accused has not been able to prove any role of injured Kartik Pahwa by which accused was deprived of the power of self-control. It would not be out of place to mention here that during the stage of cross examination of PW1 and PW2, it was suggested by the accused that it was the injured Kartik Pahwa, who had slapped the mother of the accused on the day of the incident. However, at the stage of defence evidence, when the accused himself entered the witness box, he somersaulted and deposed that it was the mother of the complainant/ injured, who had slapped the mother of the accused. Thus, the version of the accused that he got enraged and acted in the manner as alleged, due to the fact that his mother was assaulted by the complainant/ injured does not inspire confidence and is not worthy of acceptance. Thus, in my opinion, there is no ground to reach the finding that the occurrence has taken place out of sudden provocation and so, the ingredients of Section 335 IPC alone are made out.
29. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case. It has been successfully proved by the prosecution that the injuries caused to the injured/complainant/PW1 were caused by the accused and the same were grievous in nature.
30. For the aforesaid reasons, it is concluded that the prosecution has successfully proved the charge framed against the accused beyond reasonable doubt. Accordingly, the accused namely Anmol Malhotra stands convicted in respect of the offence punishable under section 325 IPC.
31. Let the convict Anmol Malhotra be heard on the quantum of sentence.
32. Copy of judgment be given to the convict free of cost and copy of judgment be placed on case file.
PUNEET Digitally by PUNEET signed Decided on 15.07.2020. NAGPA NAGPAL Date: 2020.07.15 Announced through VC (Cisco Webex) L 15:29:21 +05'30' (PUNEET NAGPAL) MM-07, West District THC/Delhi.