Delhi High Court
State vs Suman Malhotra on 26 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26th September,2018
+ CRL.L.P. 651/2017
STATE ..... Petitioner
Represented by: Mr. Ashok K. Garg, APP for the
State with SI Dhananjay Dubey,
PS Anand Vihar
versus
SUMAN MALHOTRA ..... Respondent
Represented by: Mr. Sanjay Suri, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. No.18517/2017 (Delay)
For the reasons stated in the application delay of 90 days in filing
the leave to appeal petition is condoned.
Application is disposed of.
CRL.L.P. 651/2017
1. Aggrieved by the judgment dated 5th May, 2017 whereby the
learned Additional Chief Metropolitan Magistrate acquitted the
respondent Suman Malhotra for the offence punishable under Section
324/34 IPC, the State has preferred the present leave petition.
2. Law was set into motion on 8th March, 2002 at 11:00 A.M. when
information was received regarding a quarrel at Hans Apartment, East
Arjun Nagar. Aforesaid information was recorded vide DD No. 13A. ASI
Yogender Singh reached the spot and came to know that the injured had
already been shifted to SDN Hospital. Thereafter, he reached the
Hospital, collected the MLC of the complainant Hemraj Khanna and
recorded his statement.
3. Hemraj Khanna stated that at about 10:30 A.M., he went to the
office of Hans Apartment Society for getting the NOC for co-operative
store where the President and Secretary were present but they failed to
give the NOC. The Secretary, in fact, scolded him by stating that the
NOC cannot be given in the manner sought. In the mean time, he called
his brother and driver to the society office. Hemraj Khanna left the office
and started proceeding towards his house. The Secretary came from
behind and caught hold of him. His brother inflicted blows on his private
parts, took out knife and tried to assault him. He tried to save himself
with both his hands, as a result of which, he got injuries on his hands. In
the meantime, President, Vice President and their advocate Kishore
Rawat came and started instigating the respondent. However, his friend
Mahesh Kapoor and his wife came to the spot and called the police.
Aforesaid statement was recorded vide Ex.PW-1/A. FIR No.58/2002
(Ex.PW-7/A) was registered at PS Anand Vihar for the offence
punishable under Section 324/34 IPC.
4. Thereafter, site plan was prepared vide Ex.PW-10/B. Shirt of the
complainant was seized vide seizure memo Ex.PW-1/B. On 11th March,
2002, Suman Malhotra and Rajendra Malhotra were arrested from Saini
Enclave Market vide arrest memos Ex.PW-10/C and Ex.PW-10/D
respectively and their personal searches were conducted vide memos
Ex.PW-10/E and Ex.PW-10/F respectively.
5. Prosecution examined 10 witnesses. Since Rajendra Malhotra
passed away during the pendency of the trial, proceedings qua him stood
abated.
6. Suman Malhotra in his statement recorded under Section 313
Cr.P.C. stated that he had been falsely implicated in the present case. He
stated that on the date of the incident at 10:30 A.M., he was at Krishna
Nagar, Phatphat stand. He received a call from his house regarding
Hemraj Khanna quarrelling with the management committee members,
who had locked them in the office room. He immediately rushed to the
society office and his brother Rajendra Malhotra asked him to call the
police at 100 number. He called at police at 100 number from his mobile
phone.
7. In defence evidence, respondent examined HC Berender (DW-1)
who failed to produce PCR call record, Surender Kumar (DW-2), Nodal
Officer, Bharti Airtel, who failed to produce the call detail records as
they were already destroyed and Yogender Kumar Chaudhary (DW-3),
President of group housing society, who stated that Hemraj Khanna was
running an unauthorized co-operative store due to which the expulsion
proceedings were initiated against him.
8. On perusal of the evidence on record, there was delay in
registration of FIR which has not been explained. The incident allegedly
was dated 8th March, 2002 when the statement of the complainant was
claimed to be recorded, however, the investigating officer did not
proceed for the registration of FIR for the next two days. The attestation
on the statement Ex.PW-1/A was stated to be done on the date of
incident by the investigating officer ASI Yogender Singh (PW-10) but
the same had over writings which clearly showed that the record was
ante dated. Thus, it is quite apparent that the statement was recorded after
two days of the incident and Hemraj Khanna was allowed to improve his
version and insert embellishments and witnesses.
9. Hemraj Khanna himself contradicted the roles of Suman Malhotra
and Rajendra Malhotra (deceased). He stated that the driver of the
aforesaid persons caught hold of him first from his back which is
contradictory to his earlier statement Ex.PW-1/A. He also claimed that
when Suman Malhotra tried to assault him with a knife, he resisted with
his hands and sustained injuries on both his hands. However, the
testimony of Dr. M.K. Mandal (PW-6) and MLC Ex.PW-6/A belies the
aforesaid version. As per the MLC, Hemraj Khanna (PW-1) had received
incised wound on his right forearm and cut of scar on the right forearm.
Furthermore, the aforesaid injuries were caused by a blunt object which
also contradicts the case of Hemraj Khanna as no blunt object was
allegedly used to assault him. As per the testimony of Dr. M.K. Mandal
(PW-6), there was no bleeding or swelling on the wounds examined by
him. Since there was no bleeding, ASI Yogender Singh could not have
seized the blood stained shirt. There are contradictions in the testimonies
of Hemraj Khanna, Mahesh Kapoor (PW-2), Ira Khanna (PW-3) and
Deshraj Chaudhary (PW-8) with respect to the time when each of them
reached the spot.
10. Testimony of Yogender Kumar Chaudhary (DW-3), President of
group housing society, who stated that Hemraj Khanna was running an
unauthorized co-operative store seems to be the cause of the dispute in
the society, which fact was not investigated by ASI Yogender Singh.
11. For the facts noted above, findings of the learned Additional Chief
Metropolitan Magistrate based on the evidence on record are a plausible
view. Hence, the impugned judgment acquitting the respondent cannot be
said to be perverse warranting interference of this Court.
12. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 26, 2018
'yo'
