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Fir No.37/2011, Ps : Roop Nagar State vs . Mohit Tandon on 9 September, 2019

  FIR No.37/2011,   PS : Roop Nagar            State Vs. Mohit Tandon



   IN THE COURT OF MM­08 (CENTRAL DISTRICT)
       TIS HAZARI COURTS COMPLEX, DELHI.

Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Mohit Tandon
FIR No. 37/2011
PS : Roop Nagar
U/s 326 IPC
Date of Institution             : 20.04.2011
Date of reserving of order      : 23.08.2019
Date of Judgment                : 09.09.2019
CNR No.DLCT02­000317­2011

JUDGMENT

  1.   Serial No. of the case           : 289356/2016
  2.   Name of the Complainant          : Sh. Hari Mohan
  3.   Date of incident                 : 25.02.2011
  4.   Name of accused person           :
       Mohit Tandon S/o Sh. Ashok Tandon,
       R/o H. No. 33E, Second Floor, Kamla
       Nagar, Delhi­07
  5. Offence for which charge­sheet
     has been framed             : S. 326 IPC
  6. Offence for which charge
     has been framed             : S. 326 IPC
  7. Plea of accused             : Not guilty.

   Page 1 of 15                       MM­08(C)/THC/Delhi/09.09.2019
      FIR No.37/2011,   PS : Roop Nagar            State Vs. Mohit Tandon



     8. Final Order                        : Convicted for offence
                                             punishable under
                                              Section 323 IPC.
     9. Date of Judgment                   : 09.09.2019


BRIEF REASONS FOR ORDER:

1. Mr. Mohit Tandon, the accused herein, has been chargesheeted for committing offence punishable under Section 326, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").

2. The case of the prosecution is that on 25.02.2011 complainant Hari Mohan was present at his shop no. E­33, First Floor, Kamla Nagar, Delhi. The accused was his landlord. On that day at about 12:15 p.m., the complainant had approached the accused to handover a cheque to him. However, the accused refused to receive the cheque and started abusing him. The accused also started beating the complainant. He had pushed the complainant. The complainant tried to hold a door to save himself. In the said attempt his hand had touched the glass of the door and the glass was broken. The complainant had suffered injuries on his right hand. The FIR was registered on the basis of statement of Page 2 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon complainant. Investigation was initiated. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge­ sheeted for committing the offence punishable under Section 326, Indian Penal Code.

3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. The accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 326, IPC was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.

4. The prosecution has examined as many as 05 witnesses to prove its case against the accused.

5. PW­1 Sh. Hari Mohan is the complainant. He has deposed that he had taken Shop No. E­33, First Floor, Kamla Nagar on rent from accused Mohit Tondon on 26.04.2010. He regularly paid the rent to the accused. The accused was pressurizing him to vacate the shop. On 24.02.2011, on being asked by the accused to pay the rent Page 3 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon immediately, he had paid Rs. 5000/­ in cash alongwith Rs.500/­ in cash with the condition that he would handover the cheque on next date and would get his cash back. On 25.02.2011 at about 12:45 p.m., the accused had come at the first floor of the said premises. He asked the accued to return the cash as he wanted to handover a cheque to him. The accused started abusing him. He had also noticed that the accused had thrown his sign board on the ground while he was coming upstairs. He asked the accused as to why had thrown the board. The accused became furious and he had given a fist blow on his body and he pushed him with such a force against a glass door of the main entrace due to which the glass was broken and he sustained severe injuries on his right hand. The accused had also said that he would change the lock of the main door. He threatened that he would not allow him to enter into the shop. He went to Sanjeevni Nursing Home for treatment. His MLC was prepared. His statement was recorded by the police which is Ex. PW1/A. Site plan was prepared at his instance.

6. PW­2 Dr. Ashok Sbharwal is the doctor who had examined the complainant/injured at Sanjivani Page 4 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon Nursing Home, D­13, Kamla Nagar, Delhi as visiting surgeon. He has deposed that on 25.02.2011 on calling of Dr. Farkhanda, Jr. Resident Doctor at aforesaid Nursing Home, he reached there and examined the patient and found multiple sharp cuts on dorsal side of right hand of the patient and cut was deep up to the tendon. Blood was oozing from the wounds. Thereafter, he found the injury sustained by patient was grievous nature and he mentioned his examination on the MLC of injured which is Ex. PW2/A.

7. PW­3 Dr. Farkhanda had examined the complainant/injured at Sanjivani Nurshing Home. He has deposed that on 25.02.2011 he medically examined Hari Mohan and found multiple sharp cuts on dorsal side of right hand on the patient and cut was deep upto the tendon. Blood was oozing from the wounds. Thereafter, he called doctor Ashok Sbharwal at the clinic for the examination of the patient and stitching wounds of the patient. He prepared MLC of injured which is Ex.PW2/A.

8. PW­4 Ct. Pawan Kumar is the police official who had participated in the investigation. He has deposed that on 25.02.2011 at about 2:45 p.m., SI Ramphal had Page 5 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon received some information about quarrel and he accompanied him while going to Sanjeevani Hospital from police station Roop Nagar. The IO obtained MLC of injured Hari Mohan. The IO recorded the statement of Hari Mohan and handed over the tehrir for registration of FIR. He went to police station and got the FIR registered. Thereafter he reached at E­33, Kamla Nagar, Delhi where the quarrel had taken place. He handed over the copy of the FIR and original their to the IO. The IO arrested accused Mohit Tandon in his presence vide memo Ex. PW4/A. After conducting his personal search vide memo Ex. PW 4/B, the accused was released on bail.

9. PW­5 Retd. SI Ram Phal was the IO of the case. He has deposed similar to PW­4. He has proved the rukka which is Ex.PW5/A and the site plan which is Ex. PW5/B. He had arrested the accused vide memo Ex. PW4/A and conducted his personal search vide memo Ex.PW4/B. He released the accused on bail. He had obtained the result on the MLC. On the basis of the same Section 326 was added. Thereafter the accused was formally arrested under Section 326 IPC vide memo Ex. PW5/C. His personal search was conducted vide memo Ex. PW5/D. Thereafter, Page 6 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon he recorded the statement of the witnesses and prepared the challan.

10. The witnesses were cross­examined. The accused admitted documents under Section 294 Cr.P.C. FIR is Ex. D­1, DD No. 20A which is Ex. D2 and DD No. 22A which is Ex. D3. Thereafter, the prosecution evidence was closed.

11. The accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied all the incriminating evidence. He would state that the complainant was not making payments of monthly rent. He was also not ready to vacate the premises. He was saying that he would not leave the premises. Therefore, he had made a false complaint against him. He had filed a Civil Suit against him. The Court had directed the complainant to deposit the monthly rent regularly in the Court. However, he did not deposit the rent in the Court also. He had taken Rs.45,000/­ from him as compensation for not prosecuting him in the present case. However, he still made the present complaint.

12. The accused did not lead any defence evidence. Therefore the matter was fixed for final argument.

FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon

13. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused person has been established beyond reasonable doubts. The testimony of the complainant has proved beyond reasonable doubts that the accused had voluntarily caused grievous hurt to the complainant by glass. Hence, all the ingredients of the offence has been proved by the prosecution. Therefore, it is prayed, the accused may be convicted.

14. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The accused has been falsely implicated by the complainant due to previous enmity as there was some dispute regarding the rent between the accused and the complainant. Further, there is no evidence on Court record to show that the accused had any intention to cause any hurt to the complainant at the relevant time. The complainant himself has stated in his statement to the police that he had suffered the injuries when he had hold the glass and the glass was broken. It is Page 8 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon prayed that the benefit of doubts may be given to the accused and he may be acquitted. Ld. Counsel for the accused relied upon the following judgments in support of his contention.

1. Kailash Prasad Vs. State of Bihar, AIR 1980 Supreme Court 106.

2. Abdul Karim Vs. State of Maharastra, 1978 Cr.L.J 1485

3. Nena Ram Vs. State of Rajasthan, 1999 Cr.L.J 2801

4. Rambaran Vs. State AIR 1958 Patna 452

5. Joseph Cheriyan Vs. State AIR 1953 Tra­Co 129

6. Dipa Vs. EMP AIR 1947 All 406.

15. I have heard the rival submissions and carefully perused the material available on record.

16. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.

17. In the present case, the accused has been charged for the offence punishable under Section 326, IPC. Section 326 IPC provides punishment for voluntarily causing grievous hurt to any person, interalia, by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence, is likely to Page 9 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal. Section 320 IPC defines grievous hurt. Total 8 categories of grievous hurt are provided in the Section.

18. In order to prove the charge of grievous hurt, the prosecution has to prove beyond reasonable doubts the following ingredients.

1. That the accused had voluntarily caused hurt to the victim,

2. That the accused had intended to cause grievous hurt, or he had knowledge that he was likely to cause grievous hurt, and

3. That he had actually caused grievous hurt

19. It is thus settled position of law in order that a person may be guilty of an offence of causing grievous hurt, it must be proved beyond reasonable doubts that he either intended to cause or knew himself to be likely to cause grievous hurt and not otherwise. However, prior to Page 10 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon that it must be proved that the victim had suffered a grievous hurt.

20. Grievous hurt has been defined under Section 320 IPC which provides total 8 kinds of hurt which are designated as grievous. No other kind of hurt which does not fall within those 8 categories can be called grievous. In the present case the MLC of the victim is Ex. PW2/A. Two witnesses i.e., PW­2 Dr.Ashok Shabarwal and PW­3 Dr. Farkhanda had come to prove the said MLC. PW­3 had prepared the MLC and therefore he has only proved the preparation of the MLC. He had not given any opinion regarding the injury. PW­2 Dr. Ashok Shabarwal has stated that the nature of injury was grievous. However, it is nowhere mentioned as to how the injury was grievous in nature and in which category of Section 320 IPC the said grievous hurt falls. In the MLC, it is mentioned, " local examination multiple sharp cuts on dorsal side of RT and with cut extended to tendon of middle phalynx and little finger with profuse bleeding." However, what was the material before the concerned doctor which was used to reach at such conclusion has not been proved before the Court. No X­ray on any other medical evidence has been Page 11 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon brought in the Court to prove the material which was considered by the doctor to reach at such an opinion. In these circumstances, I am of the opinion that the material on record is not sufficient to prove beyond reasonable doubts that the injury suffered by the victim had fallen in any of the category mentioned under Section 320 IPC. Benefit of reasonable doubts is given to the accused as per law. In any case, the injury mentioned in the MLC does not fall in any of the category of grievous hurt as provided under the law. Hence, I hold that the prosecution has failed to prove beyond reasonable doubts that the grievous injury was suffered by the victim. The material on record is sufficient to show only that simple injury i.e., hurt was caused to the victim as defined under Section 319 IPC.

21. The prosecution has also alleged that the injury was caused to the complainant by the accused through glass. Section 324 IPC provides punishment for voluntarily causing hurt by means, inter alia, any instrument for shooting, stabbing or cutting.

22. PW­1 complainant Hari Mohan has stated in his statement that the accused had become angry and started abusing him when he offered a cheque to him and Page 12 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon asked to return his cash amount. When he asked the accused as to why he had thrown his board, the accused had become furious and he pushed him with such a force against a glass door of main door of entrance due to which the glass was broken and he sustained sever injuries on his right hand.

23. Nothing contradictory has come in the cross­ examination of PW­1 to doubt his testimony. The accused has not denied his presence on the relevant date and time. Even in his examination under Section 313 Cr.P.C., the accused has stated that he had paid money to the complainant and the complainant had promised not to make any complaint against him regarding the incident in question. Similar suggestion was given to PW­1 during his cross­examination. These facts are sufficient to prove that the accused was present on the spot on the relevant date, time and place. The testimony of the complainant has also proved beyond reasonable doubts that the accused had pushed him and due to impact of said push the complainant had hit a glass door and the door was broken. The impact, as stated by PW­1, was with such a force that the complainant had hit the glass door. This fact is Page 13 of 15 MM­08(C)/THC/Delhi/09.09.2019 FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon sufficient to prove beyond reasonable doubts that the accused had either intention of thereby causing hurt to the complainant or he had knowledge that he was likely thereby to cause hurt to the complainant by pushing him with force. The material on record is sufficient to prove the ingredients of an offence punishable under Section 323 IPC i.e., offence of voluntarily causing hurt. However, as mentioned herein­above, the accused did not have any instrument or substance as mentioned under Section 324 IPC. Admittedly the complainant had suffered the injuries from the broken pieces of glass door which was broken after he had hit it. It can not be said for sure that the accused must have the knowledge that his push would be sufficient to break the glass door and that he intended thereby to cause hurt to the complainant from the pieces of said glass. The ingredients of offence punishable under Section 324 IPC are also, therefore, not proved against the accused beyond reasonable doubts. It is settled position of law that whenever there are two views possible, the view which favours the innocence of the accused has to be accepted by the Court.

FIR No.37/2011, PS : Roop Nagar State Vs. Mohit Tandon

24. In the light of the discussion herein­above, I hold that the prosecution has failed to prove the ingredients of offence punishable under Section 326 or 324 IPC against the accused beyond reasonable doubts. However, the material on record is sufficient to prove beyond reasonable doubts that the accused has voluntarily caused hurt to the complainant. It is settled position of law that an accused can be convicted for a minor offence even if no charge is framed of the said offence. The accused is therefore found guilty of an offence punishable under Section 323 IPC and he is accordingly convicted.

25. Let the parties be heard on the quantum sentence. Digitally signed by DINESH DINESH KUMAR KUMAR Date:

2019.09.09 17:46:40 +0530 Pronounced in the open Court on (Dinesh Kumar) this 09th day of September 2019 MM­08 (Central) Tis Hazari Courts, Delhi.