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Delhi District Court

 Title Of The Case: : State vs Aas Mohammad on 3 June, 2019

                IN THE COURT OF MS UPASANA SATIJA
             METROPOLITAN MAGISTRATE­I, NORTH WEST
                       ROHINI COURTS, DELHI

    New Case No.                 :         534757/16
    Unique I.D. No.                  :     02404R0181772013
    Title of the case:           :         State Vs Aas Mohammad
                                            FIR No. 237/2012 PS Sultan puri
    Date of institution          :         01.07.2013
    Date of reserving Judgment   :         30.05.2019
    Date of pronouncement        :         03.06.2019
JUDGMENT :

(a)The date of commission                 12.04.2012
(b)The name of complainant                Mahesh Kumar
(c)The name of accused                    Aas Mohammad @ Ashu S/o Nafees Ahmad
                                          R/o Jhuggi No.32, W­4/38, Sultan Puri,
                                          Delhi
(d)The offence complained of              325 IPC
(e)The plea of the accused                Pleaded not guilty
(f)The final order                        Covicted u/s 323 IPC
(g)The date of such order                 03.06.2019

                                      JUDGMENT

1. The present case arises out of FIR registered upon complaint of Mahesh S/o Sh. Abhi Ram. Upon completion of the investigation, the chargesheet was filed u/s 325 IPC against Aas Mohd (hereinafter referred to as accused).

FIR No.237/2012 State v Aas Mohammad Page 1 of 13

2. The prosecution story, in brief, can be stated as that on 12.04.2012 at about 4:30 p.m. at Jhuggi No. W­48, F­7 Block, Sultan Puri, Delhi, the accused voluntarily caused grievous hurt on the person of complainant Mahesh Kumar by giving fist blows on his face.

3. The cognizance of offence under Section 325 IPC was taken and the accused was summoned.

4. The charge for offence u/s 325 IPC was framed against the accused to which he pleaded not guilty and claimed trial and hence, this Court conducted trial.

5. For proving its case, prosecution examined eight witnesses.

5.1. The complainant Mahesh was examined as PW1 who testified that on 12.04.2012, he alongwith his friends Naveen and Teepu Sultan was distributing election slips and at about 04.30 PM, they reached at F­7 Block, Sultan Puri, Delhi, where the accused was residing. The accused came out from his house and asked the complainant about his election slip and upon being informed that his name was not mentioned in Election List, the accused started abusing PW1. Upon objection being raised by PW1, the accused hit him on his mouth by iron punch which the accused was wearing in finger of his hand due to which PW1 sustained injury in his mouth. He further deposed that his FIR No.237/2012 State v Aas Mohammad Page 2 of 13 friends Naveen and Teepu Sultan saved him from the accused and the accused ran away from the spot. He further stated that his family members called the police officials who recorded his statement which was exhibited as Ex. PW1/A. He further stated that his family members took him to Sanjay Gandhi Hospital and from there; he was referred to Lady Harding Hospital. He further stated that IO prepared a site plan at his instance which was exhibited as Ex. PW1/B bearing signatures of the complainant at pt. A, and that the accused was arrested at his instance vide arrest memo which was exhibited as Ex. PW1/C bearing his signature at pt. A and the personal search memo of the accused was exhibited as Ex. PW1/D bearing signatures of PW1 at pt. A. PW1 correctly identified the accused in the court.

During his cross­examination, PW1 stated that the accused was not arrested in his presence. He further stated that he told the police about the iron punch being worn by the accused and that he did not read his statement before signing it. He denied that the accused refused to tender his vote for BSP and that is why they had an argument. He further denied that he fell on his own and got injured. He further denied that the accused has been falsely implicated.

5.2. Naveen S/o Sh. Jugal Kishore, R/o H. No. F­4/75, Delhi was examined as PW2. During his examination­in­chief, he testified that on 12.04.2012, he alongwith his friends Mahesh and Teepu Sultan was distributing election slips and at about 04.30 PM, they reached at F­7 Block, Sultan Puri, Delhi, where the accused was residing. The accused came out from his house and asked PW1 about his election slip and upon being informed that FIR No.237/2012 State v Aas Mohammad Page 3 of 13 his name was not mentioned in Election List, the accused started abusing PW1. Upon objection being raised by PW1, the accused hit him on his mouth by iron punch which the accused was wearing in finger of his hand due to which PW1 sustained injury in his mouth. He further deposed that he along with his friend Teepu Sultan saved PW1 from the accused and the accused ran away from the spot. He further stated that when they were taking Mahesh to his house, brother of PW1 met them and took PW1 to Sanjay Gandhi Hospital. He further stated that his statement was recorded by IO U/s 161 Cr. P.C. PW2 correctly identified the accused in the court.

During his cross­examination, PW2 stated that he told the police about the iron punch being worn by the accused but stated that he cannot say whether the said fact was mentioned in his statement under Section 161 Cr.P.C. He was shown his statement which was marked as Mark PW2/A wherein the said fact was not mentioned. He further deposed that they were distributing election slip of BSP Party but were not forcing anyone to vote for BSP. He denied that the accused has been falsely implicated at the instance of Mahesh.

5.3. Tipu Sultan s/o Mohd Mustqueem r/o F 7­W/49 Jhuggi No. 135, Sultanpuri, Delhi was examined as PW3. During his examination­in­chief, he stated that on 12.04.2012, he alongwith Mahesh and Naveen was distributing election slip and at about 4:30 pm, when they reached near Jhuggi No. W 48 F7, accused Ass Mohd @ Ashu came out from his house, and asked / inquired from him about his election slip. When no election slip in his name was found, he started arguing with Mahesh and that PW3 intervened and FIR No.237/2012 State v Aas Mohammad Page 4 of 13 they were separated. He further stated that thereafter he went away. PW3 correctly identified the accused in the Court.

Upon permission being granted, the said witness was cross­examined by Ld. APP for State. During his cross­examination, PW3 admitted that police officials recorded his statement which was exhibited as Ex.PW3/A. He further admitted that he had stated to the police officials that Ashu gave a punch blow on the face of Mahesh. He further admitted that he stated to the police officials that after their intervention, accused ran away from the spot. He further stated that he had not stated about the fact of punch blow in his examination in chief as he did not understand what to state before the court. During his cross­examination by Ld. Counsel for accused, PW3 stated that he had seen the accused fist blow/punching Mahesh from his right hand. He further stated that the entire incident took about five minutes and that his statement was recorded on the same day. He further stated that he did not produce any election slip before the police officials. He further stated that they were distributing the slip of BSP Party. He denied that Mahesh got injured on his own and that they are falsely implicating the accused in the present case as he refused to give vote for BSP.

5.4. HC Devender Singh, 11829, PCR, West Zone, Vikaspuri, Delhi was examined as PW4. He testified that on 11.06.2012, he was posted at P.S Sultanpuri as HC/Duty Officer and his duty hours were from 4.00 pm to 12 midnight. He further testified that he registered FIR No. 237/12 upon receipt of rukka from IO/ASI Abbas Raza and that he made endorsement on the rukka to FIR No.237/2012 State v Aas Mohammad Page 5 of 13 this effect. The copy of the FIR was exhibited as Ex. PW4/A and endorsement on the rukka was exhibited as Ex. PW4/B bearing signature of PW4 at point A. He further stated that after the registration of FIR, he handed over the rukka and computerized copy of FIR to Ct. Rakesh Kumar.

The accused opted not to cross­examine the said witness despite opportunity being given for the same.

5.5. B.K. Jha, Record clerk, SGM Hospital, was examined as PW5. He produced the original record of MLC no. 6087 dated 12.04.2012 of patient Mahesh Kumar and the copy of the same was exhibited as Ex. PW5/A. The accused opted not to cross­examine the said witness despite opportunity being given for the same.

5.6. HC Rakesh Kumar No. 158/PTC, Jharoda Kalan, Delhi, was examined as PW6 who testified that on 11.06.2012, he was posted at PS S. Puri as Constable and on that day, DO/ HC Devender handed over to him a computerized copy of FIR no. 237/12 and original rukka for further handing over the same to ASI Abbas Raja at Jhuggi No. W­48, F­7 Block, S. Puri, Delhi. He further stated that he went to the spot and handed over the same to IO and the IO recorded his statement.

The accused opted not to cross­examine the said witness despite opportunity being given for the same.

FIR No.237/2012 State v Aas Mohammad Page 6 of 13

5.7. Ashok Kumar S/o Abhiram R/o F­4/8, S. Puri, Delhi was examined as PW7. He testified that on 12.04.2012, at about 4.45 pm, he was present at his home when he received an information that his brother namely Mahesh sustained injuries in the Jhuggi near F­7/48, S. Puri. He further stated that he went to the spot and found that his brother had sustained injuries and blood was oozing from his mouth and that his brother's friends namely Naveen and Tipu Sultan were also present there. He further stated that he was told that his brother was beaten by Ash Mohd. @ Ashu with some iron weapon (punch). He further stated that he called at 100 number and took his brother to SGM Hospital for treatment. He further stated that IO recorded his statement. The accused opted not to cross­examine the said witness despite opportunity being given for the same.

5.8. W/ Ct. Kiran no. 2504/RD, PRO Branch, DCP Office, was examined as PW8. She testified that on 11.06.2012, she was posted at PS: S. Puri as W/ Ct and was working as a Cipa Operator and on that day, she fed the contents of the complaint in the computer and that the contents of FIR are same as mentioned in the complaint. She further stated that the copy of FIR is already Ex. PW4/A. The accused opted not to cross­examine the said witness despite opportunity being given for the same.

6. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The entire incriminating FIR No.237/2012 State v Aas Mohammad Page 7 of 13 evidence was put to the accused who denied the same and stated to be innocent and to have been falsely implicated.

7. Final arguments were heard.

8. Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt and accordingly, the accused be convicted. He further argued that total eight witnesses were examined in order to establish the guilt of the accused, out of which PW1, PW2 and PW3 were material witnesses. He further argued that said witnesses correctly identified the accused and that PW2 and PW3 corroborated the testimony of PW1 i.e. the complainant. He further stated that MLC also corroborates the fact that the injury sustained by the complainant was grievous in nature.

9. On the other hand, Ld. Counsel for the accused argued that there has been unexplained delay of two months from the date of occurrence of incident in lodging FIR. He further argued that the fact of hitting by iron punch was stated by the witnesses for the first time during their examination in court and the same is in contradiction with their statements recorded under Section 161 Cr.P.C. He further argued that PW3 did not corroborate the testimony of PW1 and that is why he was cross­examined by the Ld. APP. He further argued that in view of the above, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and hence, he be acquitted.

FIR No.237/2012 State v Aas Mohammad Page 8 of 13

Applicable Law and its application to present facts

10. Section 325 IPC penalises the act of voluntarily causing grievous hurt whereas Section 322 IPC defines the act of voluntarily causing grievous hurt. It provides:

Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt."

Explanation­ A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.

11. In the present case, from the MLC it is established that the injury suffered by the complainant was grievous.

12. Now, it is to be seen whether it was the act of the accused which resulted in causation of hurt to the complainant.

12.1. PW1 deposed that on the relevant day, there was an argument between him and the accused and that the accused gave him fist blow. Although the FIR No.237/2012 State v Aas Mohammad Page 9 of 13 accused denied having caused injury to the complainant but during cross­ examination of PW1, suggestion was given to him that an argument occurred between him and the accused and that PW1 fell on his own and suffered injury. Hence, the fact of argument with the complainant was admitted by the accused.

12.2. Further, PW2 corroborated the testimony of PW1 and PW3, as well, deposed to the same effect.

12.3. Accordingly, in view of the above, it can be concluded that the complainant suffered injury due to the act of the accused.

13. However, in order to establish the liability of the accused under Section 325 IPC, it is also essential to establish that the accused intended or knew himself likely to cause grievous hurt.

13.1 PW1, PW2 and PW3 deposed that on the relevant day, accused gave fist blow to the complainant after wearing some iron article in his hand.

However, the fact of hitting the complainant with some iron article was mentioned for the first time in court. The said fact is conspicuously missing in the statements of the witnesses as recorded during investigation. The non­mentioning of said fact, during investigation, appears to be material. Also, no such iron article was recovered.

13.2. In view of the above, it can be concluded that fact of hitting of the complainant by the accused with some iron article is not established.

FIR No.237/2012 State v Aas Mohammad Page 10 of 13

13.3. As per the testimony of PW1 and other eye witnesses i.e. PW2 and PW3, it is apparent that the accused gave a single fist blow on the mouth of the complainant. A person cannot intend to cause grievous hurt by merely giving a single fist blow. Since the fact of giving the fist blow using any iron article is not established, it cannot be said that the accused intended or knew that he is likely to cause grievous hurt to the complainant.

14. As a general principle of criminal law, liability will arise only when there is concurrence of mens rea with actus reus. In the present case, although it is established that grievous hurt to the complainant was caused by the act of the accused but the prosecution failed to establish that the act was done with the intention to cause grievous hurt or with such knowledge that the accused was likely by his act to cause grievous hurt.

15. However, it cannot be denied that the accused did the act of giving fist blow to the complainant. Also, the fact of argument between the accused and complainant is established. Any person giving fist blow to another on the mouth does such act with the intention of causing hurt or with knowledge that he is likely by such act to cause hurt to that person.

16. Section 323 IPC penalises the act of voluntarily causing hurt whereas Section 321 IPC defines the act of voluntarily causing hurt. It provides:

FIR No.237/2012 State v Aas Mohammad Page 11 of 13

Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

17. Accordingly, it can be concluded that the accused voluntarily caused hurt to the complainant.

18. It was argued by the Ld. Counsel for accused that there has been unexplained delay of two months in lodging the FIR. From perusal of record, it is apparent that the delay has been on part of the police officials. No explanation is furnished regarding the said delay. Although delay in lodging FIR does raise a suspicion but it is settled that the delay, in itself, will not result in giving up of the entire prosecution case. The complainant as well as eye witnesses were consistent in their testimony and there is no reason to doubt the occurrence of transaction on the relevant day. The same is also corroborated by suggestion given to PW1 during his cross­examination.

19. The accused was charged for the offence under Section 325 IPC but on the basis of evidence, the commission of offence under Section 323 IPC is established. Section 222(1) Cr.P.C. provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

FIR No.237/2012 State v Aas Mohammad Page 12 of 13

20. Since the offence of voluntarily causing hurt is a minor offence which is included in offence of voluntarily causing grievous hurt and the particulars establishing the commission of offence of voluntarily causing hurt are established, the accused is convicted for the said offence.

21. Accordingly, the accused Aas Mohd is convicted of the offence under Section 323 IPC.

22. Copy of this judgment be given, free of cost, to the convict.

Announced in the open Court                  (UPASANA SATIJA)
on 03rd June,, 2019                     METROPOLITAN MAGISTRATE­1
                                               ROHINI DELHI




  FIR No.237/2012                State v Aas Mohammad                Page 13 of 13