Delhi District Court
Gagandeep Kapoor vs The State on 27 October, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI.
C.A. NO. 10/2021
1. Gagandeep Kapoor
S/o Mr. Harvinder Singh Kapoor
2. Ms. Ginni Kapoor
D/o Mr. Harvinder Singh Kapoor
3. Smt. Jasvinder Kapoor
W/o Mr. Harvinder Singh Kapoor
All R/o H. No. 62, First Floor
Block-I, Eros Garden, Suraj Kund,
Faridabad, Haryana ... Appellants
Versus
The State
(Govt. NCT of Delhi)
...Respondent
First date before this court : 15.01.2021
Date of Decision : 27.10.2021
ORDER
1. An appeal under Section 374 Cr.P.C. has been filed against the judgment dated 28.11.2020 vide which the appellants have been convicted for the offences under Section 427/451/34 IPC and sentenced to Admonition vide order dated 11.12.2020.
2. One may think that education brings in sensibility and wisdom but this is so far from the truth as is reflected by T. CA No. 10/2021 Page 1 S. Eliot when he said "Where is the wisdom we have lost in knowledge? Where is the knowledge we have lost in information?". With the advancement in technology and formal education it seems human values and tolerance have somewhat got lost as if reflected in this case.
3. The present case is the sad reflection of how competitiveness and race to outrun others resulted in this unfortunate case. The complainant Dr. Tej Pal Singh in addition to MBBS and MD, he also had a degree of ABFP and held specialization in many fields like general practice, general medicine, internal medicine, anti-aging medicine and re- generated medicine and was the first to open first day Spa in India. He was practicing in USA before his practice in India in partnership as a Dentist and Laser doctor at Fantastic Laser Clinic which was owned by Shri Gagandeep Kapoor. He was a partner of 38% in the Clinic and according to the complainant Dr. Tej Pal about 95% of the articles in the Clinic belonged to him. Since last about three months, the appellants Gagandeep Kapoor, his sister Ginni Kapoor and mother Mrs. Kapoor were trying to grab the equipments / articles of the complainant and were prohibiting him from exchanging his own contact details with the patients. Dr. Tej Pal Singh left the Clinic and joined Arora Dental Center belonging to one Dr. Jitender Arora. Dr. Tej Pal took with him the Laser machine and Cautary while the appellant Gagandeep Kapoor did not permit him to take his other articles. Shri Gagandeep Kapoor instead made a complaint in PS C. R. Park that Laser machine and Cautary has been stolen by the complainant Dr. Tej Pal. On enquiry, the complaint was found to CA No. 10/2021 Page 2 be false and no action was taken against him. The complainant also gave a representation against the appellants at PS C. R. Park.
4. Irritated by the representation, the three appellants on 29.08.2009 came to Arora Dental Center at about 5.00 pm and entered into his Laser room and started giving him beatings and breaking the articles (kamre main tor phor shuru kar di) in the room. His patient Tina Priyanka, who was present in the room, took photographs from her mobile phone on which the appellants gave beatings to her as well and snatched her phone and threw it. In the meanwhile, his two assistants Hanuman Prasad and Jang Bahadur rushed for his assistance but they were also beaten up. The appellants pulled the Laser machine to take it with them and there was chaos created in the Clinic. On hearing the commotion, Dr. Jitender Arora came to the room of the complainant and tried to convince the appellants and advised them that it was not appropriate for the appellants to take away the Laser machine. The complainant got scared and as he tried to leave he was prevented by the appellants from leaving. As the people started gathering, the three appellants left in their car while threatening that today the doctor had got saved but would not spare him and that would not let him practice anywhere except their Clinic. The complainant then phoned the Police who arrived at the spot. He gave his complaint on which FIR was registered.
5. Investigations were done by IO ASI Umed Singh. On completion of investigations, chargesheet was filed before the learned MM, who framed charges under Section 323/341/427/452/506/34 IPC on 05.12.2012.
CA No. 10/2021 Page 3
6. The prosecution in support of its case examined PW8 Dr. T. P. Singh Jowhal, the complainant who proved his complaint Ex.PW8/A and deposed on similar lines as the complaint. The photographs are collectively Ex.P1. PW1 Dr. Jitender Arora, PW2 Ms. Priyanka Siwas and PW3 Jag Bahadur, who were the eye-witnesses, deposed that some commotion did take place on the date of incident i.e. 29.08.2009 at about 5.00 pm but failed to either identify the appellants or to give the details about the incident. PW4 ASI Ajeet Singh registered the FIR Ex.PW4/B. PW5 HC Khem Pal joined investigations with the IO PW11 SI Umed Singh. PW10 Shri Rajbir Singh is the Medical Record Technician, AIIMS hospital who produced the record pertaining to medical examination of Dr. Tej Pal Singh, Hanuman Prasad and Jag Bahadur which are Ex.PW10/A to Ex.PW10/C.
7. The statement of the three appellants was recorded separately under Section 313 Cr.P.C. in which it was claimed that they have been falsely implicated in this case to counter the complaint of theft that was made by them against the complainant.
8. The learned MM concluded from the evidence of the complainant and other prosecution witnesses that offence under Section 427, 451 read with Section 34 IPC was proved and all the appellants were accordingly convicted under these sections while they were acquitted in other sections. The learned MM vide order on sentence dated 11.12.2020, sentenced them CA No. 10/2021 Page 4 to admonition. Aggrieved by the order of conviction and sentence of Admonition, the present Appeal has been preferred.
9. The main grounds agitated in the appeal are that the learned MM has failed to appreciate that three independent witnesses namely PW1 Dr. Jitender Arora, PW2 Ms. Priyanka Siwas and PW3 Jag Bahadur have failed to support the case of the prosecution. The learned MM was also failed to appreciate that the present complaint was nothing but a counter-blast to the complaint of theft which was made by the appellants against the complainant. The three public witnesses had categorically deposed that they were not aware of any such incident. Furthermore, the Laser machine which was allegedly taken and damaged has neither been produced nor any bill indicating the cost of repairs has been produced by the prosecution. The complainant is not the truthful witness. He has deposed that he had suffered injuries but there is no fresh injury indicated in his medical record Ex.PW10/A. He has further claimed that his patient Priyanka had taken photographs from her mobile phone but those photographs have not been placed on record. Moreover, the authenticity of the photographs collectively Ex.P1 and CD Ex.P2 has not been established in accordance with Section 65 of the Indian Evidence Act. The appellants have therefore been wrongly convicted and are liable to be acquitted.
10. I have heard the arguments from the learned Public Prosecutor for State and the appellants and perused the record and the evidence recorded therein. My observations are as under:
CA No. 10/2021 Page 5
11. The appellants have been convicted under Section 427/451/34 IPC. The prosecution in support of its case had examined as many as three eye-witnesses and the complainant. PW1 Dr. Jitender Arora had deposed that he was working as a Dental Surgeon at Dr. Arora Dental and Laser Centre and the complainant Dr. T. P. S. Johal who was earlier working elsewhere joined his Clinic as a Skin Laser Specialist. On 29.08.2009, while he was treating his patient in different chamber, he heard a commotion from the chamber of Dr. Johal and rushed there but found none present in his chamber. He thereafter, moved to the reception and came to know that 2-3 persons had come to the Clinic and give beatings to Dr. Johal. The witness was cross- examined by learned Prosecutor but nothing material could be elicited.
12. The second public witness examined by the prosecution was PW2 Ms. Priyanka Siwas who was a patient and was present on the day of incident i.e. 29.08.2009 at about 5.00 pm in the Clinic. According to her testimony, there was some hassle between two ladies and Dr. Johal but in order to avoid it, she went inside the Toilet and nothing happened in her presence. She was unable to identify any of the ladies. She also deposed about there being some incident which happened between two ladies and Dr. Johal though she was not able to explain any further.
13. PW3 Shri Jag Bahadur also deposed on similar lines that he came to know that two ladies had entered the CA No. 10/2021 Page 6 chamber of Dr. Johal and given beatings to him. He further deposed that the two ladies were not present in the court room. The witness was again cross-examined by the Public Prosecutor though with no positive result.
14. The testimony of these three witnesses i.e. PW1 Dr. Jitender Arora, PW2 Ms. Priyanka Siwas and PW3 Shri Jag Bahadur proves that an incident happened on 29.08.2009 at about 5.00 pm while Dr. Johal was treating his patients in his chamber but have not deposed about the actual incident which took place. The happening of incident is established from their respective testimony.
15. The only witness who has deposed about the entire incident is the complainant PW8 Dr. T. P. Singh Jowhal. He has explained that he was a 38% partner in Fantastic Laser Clinic of accused Gagandeep Kapoor since 2009. However, differences arose on account of interference in the business by his family members and he left the Clinic to join Arora Dental Clinic in G. K. I. He brought his Laser Machine and electric Cautary machine with him from Fantastic Laser Clinic. He has further explained that on 29.08.2009, the appellants i.e. Gagandeep Kapoor, Jaswinder Kaur and Ginni Kapoor came to the Clinic and started kicking and throwing insults and profanities at him. Their sole intention was to hurt him as well as to destroy Laser machine and make it unworkable. Soon after this commotion, the other staff members came to his rescue but by then they had destroyed the brain i.e. the hand piece of the Laser Machine and knocked it against the wall and kicked it with their shoes till the cooling CA No. 10/2021 Page 7 system of the Laser was completely destroyed. Subsequently, when Bahadur assistant of Dr. Arora and Hanuman Prasad his own assistant came to his rescue, all the three appellants left in their own car. The Distributor of the Laser Machines was called and it was checked for 40 days but it could not be repaired. It is further deposed by him that soon after the incident, Dr. Arora came in and told both the parties to settle the matter and the police was called. He along with two assistants was taken to the Hospital for the treatment. He gave a complaint which is Ex.PW8/A.
16. Interestingly the appellants have been acquitted under S323, 341 and 506 IPC and have been convicted under S427 and 451 IPC. No appeal has been preferred by the complainant against the acquittal. What needs to be examined is whether the prosecution has been able to bring home the two offences under S427 and 451 IPC against the appellants.
Conviction under Section 427 I.P.C.
17. Mischief is defined under S.425 as under:
"425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
CA No. 10/2021 Page 8 Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."
18. Essentially there are three key elements to establish Mischief as per the definition laid down in section 425 of IPC which are as follows:
Intention or the knowledge of the act (mens rea); The act resulting in destruction, damage or change in the property or situation thereof; and (actus rea) The change must lead to diminishing the value or utility.
19. Section 427 I.P.C. gives the punishment where damage is more than Rs.50 reads as under:
"427. Mischief causing damage to the amount of fifty rupees.--Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
20. PW8 Dr. T. P. Singh Jowhal in his complaint Ex.PW8/A had asserted that the appellants had entered the Clinic to take away the Laser machine, they even pulled the wire with an intent to take it away. He also stated that Dr. Arora who intervened later had tried to counsel both the parties that being educated they should not indulge any this kind of fight and not take away Laser machine as thieves. Nowhere in his complaint has it been mentioned that the Laser machine was thrown against the wall or kicked with the shoes which damaged its Head or that the Distributor of laser machines was called and despite trying CA No. 10/2021 Page 9 for 40 days it could not be repaired as deposed by him in his testimony.
21. The only averments made in the complaint were that the items lying in his chamber were thrown and they got scattered. The complainant as PW8 had deposed about damage to his Laser machine for the first time in his testimony and this fact does not find any mention in the complaint. There is marked improvement in the testimony of the complainant which is not supported by and cogent evidence. Not an iota of evidence is there that there was any damage to the property of more than Rs.50/-. Conspicuously, neither the Laser machine nor any piece of furniture or item allegedly damaged by the appellants was seized by the police. There is also no purchase receipt or repair receipt or any other word or even oral evidence to show that the damage to the Laser machine was more than Rs.50/-. Though seven photographs collectively Ex P-1 have been tendered by PW-8 the complainant but they have not been proved in accordance with law as they are not supported by Certificate under S.65-B of the Indian Evidence Act. Moreover, the photographs even if admitted merely show the room of the complainant and there is no evidence of any "tora phori" of the articles or of having caused damage to any property in the room. The prosecution has therefore not been able to prove the offence under Section 427 IPC and the Appellants are entitled to be acquitted under this section.
Conviction under Section 452 I.P.C.
CA No. 10/2021 Page 10
22. The appellants had been charged with the offence under Section 452 IPC on the allegations of having trespassed into the office of the complainant for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person but have been convicted under Section 451 IPC for house trespass in order to commit offence punishable with imprisonment.
23. The basic offence in this genre of offences is Criminal Trespass which is defined under :
Section 441:- Criminal trespass Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit"criminal trespass".
447. Punishment for criminal trespass Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.
House-trespass is an aggravated form of criminal- trespass.
Section 442 defines "House trespass" as whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a CA No. 10/2021 Page 11 human dwelling or any building used as a place for worship, or as a place for the custody of property.
Section 451. Whoever commits house-trespass in order to the committing any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
24. Section 452 is still aggravated form of criminal trespass. In order to bring home the offence under Section 452 IPC, it has to be established that whoever commits house- trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint. Section 451 is lesser offence where house- trespass is made in order to the committing of any offence punishable with imprisonment.
25. The essential requisite for house trespass is that the trespass must be of a building, tent or vessel used as a human dwelling or a place for worship or as a place for custody of property. It is the case of the prosecution that the appellants had entered Arora Clinic and had assaulted the complainant. The basic question which arises is whether the clinic would be covered with the definition of a dwelling house. In State of Haryana Vs. Prem Singh Criminal Appeal No. 444/1997 decided on 22.02.2007, (Punjab & Haryana High Court) the CA No. 10/2021 Page 12 incident had occurred in a school and the respondent was charged with the offence under Section 452 IPC. It was held that school would not come within the definition of house as it is a public place and the offence under Section 452 IPC would not be made out. In Seema Gupta Vs. State, Crl. M.C. No. 3819/2011 decided on 05.09.2012 the alleged trespass was in the office of the complainant. Delhi High Court made a reference to the judgment of Prem Singh (Supra) and observed that if the building where the respondents entered was not a house or a dwelling unit, the offence under Section 452 IPC would not be made out as the office cannot be termed as a house.
26. In the present case as well the place of incident is a Clinic which by no stretch of interpretation can be termed as a house. However, all the ingredients of lesser offence of Criminal Trespass of having entered into his room to intimidate him by giving him beatings and throwing the articles helter-skelter, punishable under S.447 are established beyond reasonable doubt from the testimony of PW-8 Dr. T. P. S. Jowhal. The Appellants are thus convicted under the lesser offence of S.447 instead of S.451 IPC.
27. There is no ground for modification of sentence of Admonition as the most lenient sentence has been imposed upon the Appellants.
28. In view of the above discussion, the sentence is upheld though under different Section. The appeal is accordingly dismissed.
CA No. 10/2021 Page 13
29. A copy of this order along with trial court record be sent back to the learned trial court and appeal file be consigned to Digitally signed record room. NEENA by NEENA BANSAL BANSAL KRISHNA KRISHNA Date: 2021.10.27 Announced in the open court on 17:01:20 +0530 this 27th day of October, 2021 (NEENA BANSAL KRISHNA) Principal District & Sessions Judge South East, Saket Courts New Delhi CA No. 10/2021 Page 14