Delhi District Court
State vs Lakhvinder Singh on 17 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
WEST, TIS HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Cr. Case No. -: 73891/2016
Unique Case ID -: DLWT020107832016
No.
FIR No. -: 1187/2015
Police Station -: Tilak Nagar
Section(s) -: 323/341/34 IPC
In the matter of -
STATE
VS.
LAKHVINDER SINGH & Anr.
.... Accused
1.Name of Complainant : Charanjeet Singh @ Channa
1. Lakhvinder Singh
2. Name of Accused :
2. Gurnam Singh @ Monu Offence complained of or
3. : 323/341/34 IPC proved
4. Plea of Accused : Not Guilty
5. Date of registration of FIR : 14.08.2015 Date of filing of
6. : 21.07.2016 chargesheet
7. Date of Reserving Order : 22.05.2023
8. Date of Pronouncement : 17.08.2023
1. Lakhvinder Singh- convicted u/s 334 IPC
9. Final Order :
2. Gurnam Singh @ Monu-
Acquitted Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:19:58 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 1 of 16 BRIEF STATEMENT OF REASONS FOR THE DECISION-:
FACTUAL MATRIX:
1. Briefly put, the case of the prosecution is that on 13.08.2015 at about 11:00 PM, at H.No. WZ-B-58C, Tilak Vihar, Tilak Nagar, Delhi within the jurisdiction of PS Tilak Nagar, both accused, in furtherance of their common intention, wrongfully restrained and voluntarily caused simple hurt to the complainant namely Charanjeet Singh @ Channa. Accordingly, both the accused persons are alleged to have committed the offences punishable u/s 323/341/34 IPC.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused persons was filed. After taking cognizance of the offence, both accused were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 323/341/34 IPC was framed against both accused, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:20:16 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 2 of 16 and documentary evidence against the accused persons to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Retd. ASI Pardeep Kumar PW-2 : Sh. Charanjeet Singh (complainant) PW-3 : ASI Jai Pal PW-4 : ASI Subhash Chand PW-5 : Ms. Suman Kaur (alleged eye-witness) DOCUMENTARY EVIDENCE Ex. PW1/A : FIR Ex. PW1/B : Endorsement on Rukka Ex. PW1/C : Certificate u/s 65B of Evidence Act Ex. PW2/A : Statement of complainant Ex. PW3/A & : Arrest Memos of accused persons B Ex. PW4/A : Tehrir Ex. PW4/B : Site Plan Ex. AD-1 : MLC bearing no. 12975 dated 14.08.15 Ex. AD-2 : DD No.2PP dated 14.08.2015 STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
5. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. Both accused stated that they are innocent and have been falsely implicated in the present case.Digitally signed
DEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:20:24 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 3 of 16 ARGUMENTS -
6. I have heard the Sh. Dhirendra Kumar Yadav, Ld. APP for the State and Sh. P.K. Ghosh, learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
7. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the testimony of the eye-witness/complainant has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
8. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that the accused persons have been falsely implicated in the present case. It has been submitted that there are material contradictions in the testimony of the complainant, which renders his testimony doubtful. It has been further submitted that the other eye-witness Suman Kaur has turned hostile and has not supported the version of the prosecution that a scuffle had taken place between the accused persons and the complainant.
INGREDIENTS OF THE OFFENCE -
9. Section 319 IPC defines the offense of causing 'hurt' as whoever causes bodily pain, disease or infirmity to any person. Further, punishment for causing simple hurt is prescribed in section 323 IPC and the ingredients of the same are: (i) Accused has caused Digitally signed DEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:20:31 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 4 of 16 hurt to the victim; (ii) the hurt caused was voluntary in nature; and
(iii) the same offence is not covered under Section 334 of the IPC.
10. Further, for commission of the offense under section 341 IPC, the essential ingredients are: (i) accused obstructed a person; (ii) the accused committed the said act voluntarily; and (iii) by doing such act, the accused prevented such person from proceeding in certain direction in which he had the right to proceed. The term 'voluntarily' has been defined under section 39 of the IPC as follows:
A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
Illustration: A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.
11. Therefore, the prosecution was required to satisfy the aforesaid ingredients to bring home the charge against the accused persons. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
12. The case of the prosecution hinges on the testimony of the star witness, PW2 Charanjeet Singh. PW2 is the sole eyewitness Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:21:20 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 5 of 16 who has supported the version of the prosecution. As per PW2, his flat is situated on the 2nd floor and the flat of the accused persons is situated on the 3rd floor. He has deposed to the effect that on 13.08.2015, around 11:00 PM, accused Toni (Lakhvinder Singh) was in drunken condition and he was quarreling with Suman Kaur, who resides on the 1st floor. He has further deposed that suddenly, accused Toni came down through the stairs and pushed the complainant with force, who was standing at the "jeena" (stairs) in front of his flat. The complainant has further deposed that he slapped the accused Toni for pushing him after which, they started quarreling with each other.
13. Thereafter, the complainant's mother came outside upon hearing the noise and tried to save the complainant. The complainant has further deposed that suddenly, another accused Monu (Gurnam Singh), who was sitting on the stairs, came and hit the mother of complainant on her head, pursuant to which she fell unconscious. He has further deposed that there was one deep mark on the head of mother of complainant which appeared to be caused by the stick (danda) though the complainant did not see the accused Monu hitting his mother with stick. Thereafter, as per the complainant, the accused Monu also hit him on the right side of his stomach with his fist. Lastly, he has deposed that after the blow to his mother, there was no consciousness in her body and her body had turned pale, and she was declared dead in the hospital.
14. The complainant was asked leading questions by the Ld. APP on the ground that he was not stating complete facts. As a response to a leading question, the complainant stated that it is Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:21:29 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 6 of 16 correct that the accused Toni had caught hold of him, and his brother Monu and his friend came over there and hit him. He further stated that it is correct that the said persons made him fall on the ground/floor of Jeena/stairs.
15. During his cross-examination, the complainant stated that he does not remember whether he had disclosed the name of the accused Monu in his statement to the police. He further deposed that the accused are three brothers but in the said quarrel, only two of the brothers had participated.
16. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would seldom implicate someone falsely and let the real culprit go scot-free. In the case of Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, the Hon'ble Apex Court, relying on its earlier judgments reiterated that special evidentiary status should be accorded to an injured witness. Relevant part of the judgment is reproduced as under:
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that 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, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:21:43 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 7 of 16 present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.
17. A similar view was taken by the Hon'ble Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, whereby the Hon'ble Apex Court discussed the evidentiary value of the testimony of an injured witness in the following words:
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 built-in 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".
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence.
Thus, 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 therein.
18. Accordingly, it is a settled position in law that the testimony of an injured witness is a highly corroborative piece of evidence. Unless highly compelling circumstances are established by the accused which casts a reasonable doubt over the statement of the injured witness, such statement can be safely relied upon by the Courts to convict the accused. Therefore, the testimony of PW2 Digitally signed DEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:22:05 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 8 of 16 needs to be accorded great weight considering the fact that he is an injured witness.
19. However, on greater appreciation of the evidence on record, material discrepancies have come to light in the version of PW2 with respect to the role of the accused Gurnam Singh @ Monu, as discussed hereinafter.
20. In his examination-in-chief, the complainant deposed that the accused Monu (Gurnam Singh), who was sitting on the stairs, came and hit the mother of complainant on her head, pursuant to which she fell unconscious. He has further deposed that there was one deep mark on the head of mother of complainant which appeared to be caused by the stick (danda). Thereafter, as per the complainant, the accused Monu also hit him on the right side of his stomach with his fist.
21. However, the aforesaid version is completely contradictory to the version of PW2 in his statement given to the police which is Ex. PW2/A. In the said statement, PW2 Charanjeet has nowhere deposed that his mother was beaten up by the accused Monu. On the contrary, he had deposed that when he was being beaten up by the accused persons, his attention went to his mother, and he noticed that she was lying unconscious around the door. Therefore, as per his statement Ex. PW2/A, PW2 was being beaten up by both accused when he noticed that his mother has become unconscious. Therefore, if PW2 was being beaten up by both accused, it is not possible that the accused Monu also hit PW2's Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:22:11 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 9 of 16 mother simultaneously who was standing at a distance around the door of their flat.
22. The medical record also does not support the version of the PW2. As per the PM report of the mother of PW2, the mother of PW2 passed away due to a sudden cardiac arrest. There is no mention of a head injury caused by a stick in the said PM Report.
23. Further, in Ex. PW2/A, the complainant stated that the accused Toni caught hold of him and at the same time, Toni's brother and his friend also joined him to beat the complainant. Therefore, in the statement Ex. PW2/A, there is no mention of the name of the accused Monu. However, in his examination-in-chief, the complainant specifically identified the accused Monu (Gurnam Singh) by his name. The parties were neighbors and hence, known to each other. Therefore, it is not clear as to why the complainant did not mention the name of the accused Monu in his initial statement despite being aware of his name. The complainant admitted in his cross-examination that the accused persons are three brothers. Therefore, as per Ex. PW2/A, it could have been either of the two brothers (apart from accused Lakhvinder @ Toni who was identified by name) who attacked the complainant and the non- mentioning of the name of the accused Monu in the statement Ex. PW2/A creates doubt over his role in the concerned incident.
24. Further, the MLC of the complainant (Ex. AD-1) does not mention any kind of injury/swelling/tenderness in his stomach. Therefore, the deposition of the complainant that he was beaten up Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:22:18 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 10 of 16 by accused Monu with a blow to his stomach is not corroborated by the medical record as well.
25. Therefore, as discussed above (in paragraph 20-24), there are material discrepancies in the version of the complainant with respect to the role of the accused Gurnam Singh @ Monu. Therefore, the accused Gurnam Singh @ Monu is entitled to benefit of doubt, thereby entitling him to an order of acquittal.
26. With respect to the accused Lakhvinder Singh @ Toni, the testimony of the complainant is cogent and consistent to the effect that the accused Toni had pushed him on the jeena (stairs) and thereafter, a quarrel had ensued between them in which the said accused caused injuries to him. The said testimony is also corroborated by the MLC Ex. AD1 which reflects simple injuries to the extent that there are abrasions on the forehand, hand and chest of the complainant.
27. However, it cannot be ignored that the said hurt was caused after the complainant slapped the accused Toni@ Lakhvinder. The complainant has himself deposed that the quarrel happened after he had slapped the accused Toni. Therefore, in this case, the applicability of section 334 IPC will have to be analysed.
28. The ingredients for the offence under Section 334 of IPC are that the accused must have voluntarily caused hurt; that such hurt must have been caused on grave and sudden provocation and the accused must not intend to hurt or know it to be likely to DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:22:24 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 11 of 16 hurt anyone other than the author of provocation. Therefore, intention must be to cause hurt to the author of grave and sudden provocation. For Section 334 of IPC to be invoked, provocation must be present at the time of assault (see Mangi Lal v. State of Rajasthan, 2008 SCC OnLine Raj 502).
29. The definition of grave and sudden provocation has been laid down in a catena of cases. It is a settled position of law that an offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. Another test that is applied is to see whether the behaviour of the assailant was that of a reasonable person. Further, the act of causing injury should have been done during the continuation of the state of mind of grave and sudden provocation. The phrase 'grave and sudden provocation' was recently explained by the Hon'ble Supreme Court in Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 SCC OnLine SC 955:
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the Digitally signed DEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:22:31 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 12 of 16 accused is placed, to temporarily lose the power of self-control.
The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self- control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
30. Considering the aforesaid principles of law, it is to be seen whether the provocation was sufficient to bring about a loss of self-control in the fact situation based on the test of a reasonable man. In the present fact situation, the accused was already having a verbal quarrel with Suman Kaur and in that heated environment, the complainant slapped the accused. I am of the opinion that it is evident that the accused Lakhvinder Singh caused simple injuries to the complainant upon grave and sudden provocation since the complainant slapped the accused after which the quarrel ensued. The response of the accused was proportionate to the provocation, since in response to the slap by the complainant, the accused caused simple injury to the complainant.
Digitally signed by DEVANSHU DEVANSHU SAJLAN
SAJLAN Date: 2023.08.17
10:22:37 +0530
Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 13 of 16
31. Therefore, based on the above discussion, I am of the view that the accused Lakhvinder Singh @ Toni is liable to be convicted under section 334 IPC instead of section 323 IPC.
32. Moving on, the other offense for which the accused persons have been arraigned is section 341 IPC. However, bare perusal of the examination in chief of the complainant shows that he was not restrained. As discussed above, the complainant has deposed that the accused Toni came down through the stairs and pushed the complainant with force, who was standing at the "jeena" (stairs) in front of his flat. The complainant has further deposed that he slapped the accused Toni for pushing him after which, they started quarreling with each other. The said testimony nowhere talks about any kind of wrongful restraint.
33. In order to prove the aspect of wrongful restraint, Ld. APP has relied upon the part where leading questions were asked to the complainant. It is a matter of record that as a response to a leading question asked by Ld. APP, the complainant stated that it is correct that the accused Toni had caught hold of him, and his brother Monu and his friend came over there and hit him. Ld. APP has submitted that this answer clearly shows that the complainant was restrained by the accused persons.
34. However, this part of the testimony cannot be relied upon in any manner. It is a settled position of law that learned prosecutor cannot put leading questions on material part of evidence while recording examination in chief of a witness. Asking such Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date:
2023.08.17 10:22:44 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 14 of 16 leading questions is impermissible in law in terms of section 142 of Indian Evidence Act. In this regard, reliance can be placed upon the judgment of Hon'ble Supreme Court in Varkey Joseph v. State of Kerala, 1993 CRI LJ 2010, which lays down that learned prosecutor cannot put leading questions on material part of evidence since such leading questions offend the right of accused to fair trial enshrined under Article 21 of Constitution of India. The said judgment specifically records in paragraph 11 that leading questions can only be put to the witness by the learned prosecutor, with the permission of the court, after declaring the said witness to be hostile. However, the complainant was not declared hostile by the Ld. APP and hence, the aforesaid leading question and its response cannot be read in evidence.
35. Accordingly, once it is concluded that the leading question and its response cannot be read in evidence, there is nothing on record to prove that the accused persons wrongfully restrained the complainant. Therefore, keeping in view the abovementioned discussion, the offence under Section 341 IPC is not made out against the accused persons as the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, both the accused persons are entitled to be acquitted under section 341 IPC.
CONCLUSION -
36. To recapitulate the above discussion, the accused Gurnam Singh @ Monu is hereby acquitted for the offences under Section 323/341/34 of the Indian Penal Code, 1860. The Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:22:51 +0530 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 15 of 16 accused Lakhvinder Singh @ Toni is hereby acquitted for the offences under Section 323/341/34 of the Indian Penal Code, 1860 but is convicted under section 334 IPC.
37. Bail Bonds accepted at the stage of trial are accepted for the purpose of section 437A CrPC with respect to accused Gurnam Singh.
38. Let a copy of this judgment be given free of cost to the convict Lakhvinder Singh @ Toni.
Pronounced in open court on 17.08.2023 in presence of the accused persons. This judgement contains 16 pages, and each page has been signed by the undersigned.
Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.08.17 10:23:00 +0530 (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/ 17.08.2023 Cr. Case 73891/2016 State v. Lakhvinder Singh & Anr. Page 16 of 16