Delhi District Court
State vs Nahar Singh on 15 April, 2024
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Nahar Singh etc.
FIR No : 143/2018
U/s : 323/452/506/511/34 IPC
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020241172020
2. Date of commission of offence : 06.04.2018
3. Date of institution of the case : 16.09.2020
N 4. Name of the complainant : Om Kumar
5. Name of accused, parentage & : 1. Nahar Singh
address S/o Kuldeep
R/o Madliya Panna,
Jafarpur Kalan, New
Delhi.
2. Kuldeep
S/o Shri Ram
R/o Madliya Panna,
Jafarpur Kalan, New
Delhi.
6. Offence complained of : 323/452/506/511/34 IPC
7. Plea of the accused : Pleaded not guilty
: Accused Kuldeep
acquitted of all offences.
8. Final order Accused Nahar Singh is
convicted for offences
u/S 323/511 IPC.
9. Date of final order : 29.02.2024
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Madan Lal, Ld. Counsel for accused persons.
Mr. Rajesh Yadav, Ld. Counsel for complainant.
Digitally signed
by Abhinav
FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 1 of 22 Abhinav Ahlawat
Ahlawat Date:
2024.02.29
11:15:12 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 06.04.2018 at about 07.00 AM, at the house of complainant Om Kumar at Jafarpur Kalan, Delhi, accused persons in furtherance of their common intention committed house trespass by entering into the house of complainant having made preparation to hurt complainant or for assaulting him or for putting him in fear of hurt or assault, threatened him to kill, attempted to voluntarily caused hurt to the complainant and thereby committed the offences punishable under Sections 323/452/506/511/34 of IPC, for which FIR no.143/2018 was registered at the police station Jafarpur Kalan, New Delh.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSONS
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused persons and summons were issued to the accused persons. On their appearance, copy of the chargesheet 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 323/452/506/511/34 of IPC was framed against the accused persons on 13.09.2022. The accused persons pleaded not guilty and claimed trial.
Digitally signed by AbhinavFIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 2 of 22 Abhinav Ahlawat Ahlawat Date:
2024.02.29 11:15:22 +0530 PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Om Kumar PW-2 Mehar Singh PW-3 SI Balkishan PW-4 SI Leela Ram PW-5 HC Neeraj PW-6 Lal Singh DOCUMENTARY EVIDENCE Ex.P1 DVD 01 Ex.P2 DVD 02 Ex.PW3/A FIR Ex.PW3/B Certificate u/S 65B of Indian Evidence Act Ex.PW3/C Tehrir Ex.PW4/A Statement of complainant Ex.PW5/A Notice u/S 41A Cr. P. C. qua Nahar Singh Ex.PW5/B Notice u/S 41A Cr. P. C. qua Kuldeep Ex.PW5/C Disclosure statement of accused Nahar Singh Ex.PW5/D Disclosure statement of accused Kuldeep
4. Prosecution examined the following witnesses and the same are as follows:
PW1 Om Kumar (complainant) deposed that on 06.04.2018, in the morning at about 07:00 am, when he reached at the gate of his house accused Nahar Singh and Kuldeep attacked him and at that time accused Nahar Singh was armed with kassi and co- accused Kuldeep was instigating him by saying "kaat de kaat de, ye zamin ka case nhi utha raha". He turned back and ran inside his house to save his life. The accused persons ran after him. Accused Nahar Singh picked a brick and threw it at him but the said brick did not hit him. Thereafter, both the accused persons went out of his house. Accused Nahar Singh went to the roof of Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 3 of 22 Abhinav Ahlawat Ahlawat Date:
2024.02.29 11:15:31 +0530 his house and said to him "bhar niklo, tere ko or tere parivar ko jaan se marungha". The accused Nahar Singh threw bricks on his house from the roof of his house and he called on 100 number three times at 07:05am, 07:15am and 07:35am and at about 07:40am, PCR vehicle came and took him along with Nahar Singh and his wife Babita to PS J. P. Kalan. The IO sent Nahar Singh and Babita to RTRM Hospital for medical examination. He requested IO ASI Omkar that Kuldeep was also involved in the incident but accused Kuldeep was not called to the police station by the IO. At about 10:30am, his wife Pushpa also came to the police station and disclosed that the accused Nahar Singh had torn her clothes and have manhandled her. At about 12:30pm, IO instructed him to go home and told him that he would be called if needed but the IO never called him or his wife for any further proceedings. Thereafter, on 26.04.2018 he gave complaint before the concerned SHO, DCP and CP office, but no action was taken. Thereafter, he moved an RTI application to know the status regarding his calls on 100 number. He received reply to RTI application that the call on 100 number had been filed as the matter was stated to be compromised. Thereafter, he moved an application along with five CDs of CCTV footage of the incident attached, before the PM Office. On 28.07.2018, he received a call from vigilance office and thereafter, he went to vigilance department office at Dwarka where his statement was recorded and he also handed over the five CDs of CCTV footage on 02.08.2018. Thereafter, on 02.09.2018, he was called by the SHO to PS J.P Kalan and the concerned SHO stated that "tu jayada police officials ke complaint karta hai". Thereafter, his statement was recorded and one cross case was also lodged against him along with the lodging of his complaint. His Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 4 of 22 Abhinav Ahlawat Date: Ahlawat 2024.02.29 11:15:39 +0530 complaint dated 02.09.2018 Ex.PW1/A and the present FIR was lodged upon his statement. Thereafter, on 12.09.2018, he went to DCP office, Dwarka and lodged his complaint regarding the fact that one cross case was filed against him by the IO. Thereafter, after watching the CDs by the concerned DCP, the cross FIR lodged against him was cancelled and the FIR lodged upon his complaint was proceeded with. Thereafter, he came to know that the present chargesheet has been filed before the Hon'ble Court and his complaint which was pending for investigation before ASI Om Prakash was still pending. On 29.12.2019 he had joined the investigation in the present matter and the CDs regarding the CCTV footage of the incident were handed over by him to the IO SI Leela Ram which was seized by him vide seizure memo Ex.PW1/B and the certificate U/s 65B regarding the CCTV footage and the mobile phone recording was given by him Ex.PW1/C. IO prepared the site plan at his instance Ex.PW1/D. The four CDs present on the court record were played one by one on the court computer system. The witness stated that in the video shown in DVD 01 where one person in white pant and white T-shirt could be seen on the roof, who was throwing bricks/stone towards one house. The witness stated that the said person was accused Nahar Singh who was throwing bricks at his house. In DVD 02, the witness stated that the person seen in black T-shirt and black pant was he himself who was seen walking towards the gate and at the gate two persons, one having a kassi while the above is unarmed can be seen attacking the person wearing black shirt and black pant. The witness identified the person having kassi who was seen blowing the kassi towards the complainant/witness and thereafter throwing brick at the witness as accused Nahar Singh and the unarmed person Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 5 of 22 Abhinav Ahlawat Date:
Ahlawat 2024.02.29 11:15:48 +0530 accompanying the accused Nahar Singh as co-accused Kuldeep. It could be seen in the video that two bricks fall from above and the said incident as described above could be seen at timing 07:20 to 07:22 am on 06.04.2018. The witness stated that the two bricks which fall from above were from among the bricks which were thrown at his house by the accused Nahar Singh as could be seen in the video in DVD 01 Ex.P1 and DVD 02 Ex.P2. In the cross-examination, he stated that accused Kuldeep was his uncle (Tau) and co-accused Nahar Singh was his cousin (son of accused Kuldeep). His father had filed a civil suit against the accused persons as they had a dispute regarding property and the accused persons wanted that he should withdraw the said suit.
The property in which he was residing was amongst the disputed property. He voluntarily stated that the dispute was regarding the entire ancestral property. It is stated that on date of incident i.e. 06.04.2018 the accused persons suddenly attacked him. He did not sustain any injury in the incident in question. He had not gave any written complaint to the police officials regarding the incident in question.
5. PW2 Mehar Singh deposed that on 06.04.2018, at about 7:00am he was present on the first floor of his house and he heard a voice and when he saw in the street the accused Kuldeep and Nahar Singh were armed with kassi and they had entered in the personal street/house of Om Kumar. There was a scuffle going on at that time. Thereafter, accused Nahar Singh came up on the roof of his house and started throwing stones towards Om Kumar and Lal Singh. As PW2 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he denied the suggestion that he had been won over by the accused persons. In Digitally signed by Abhinav Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 6 of 22 Ahlawat Date:
2024.02.29 11:15:56 +0530 the cross-examination, he stated that he was a witness to another incident in which the accused persons had injured their Nephew/bhatija namely Rahul. He stated that there was a property dispute going on between the accused persons and the complainant regarding the street rights.
6. PW3 SI Balkishan deposed regarding registration of FIR and proved FIR as Ex.PW3/A, certificate under Section 65B of Indian Evidence Act as Ex.PW3/B and endorsement on FIR as Ex.PW3/C.
7. PW4 SI Leela Ram deposed that on 02.09.2018, he was present at the PS when the complainant Om Kumar came to the PS and lodged his complaint which was marked to him. He prepared a tehrir upon the complaint of Om Kumar as Ex.PW4/A and got the present FIR registered. Thereafter, he went to the spot of incident with the complainant and prepared the site plan at the instance of the complainant. On 29.12.2019, the complainant handed over to him the CCTV footage and mobile recording in four DVDs along the certificate U/s 65B IEA which were seized by him. Thereafter, he was transferred from the PS and he submitted the case file to MHC (R). In the cross-examination, he stated that complainant himself gave the complaint and before reaching the incident of the spot, the FIR was lodged by the police. He did not remember the time at which FIR was lodged. He along with complainant reached at the spot of incident and met Lal Singh at the spot. Lal Singh told him that he was the eye witness to the incident. Complainant told him that there was a property dispute between the parties previously. He did not know if accused has share in the property in question and he got to know during investigation that the both parties had pelted stones at each other.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 7 of 22 Ahlawat Date:
2024.02.29 11:16:14 +0530
8. PW5 HC Neeraj deposed that on 24.06.2020, the case file of the present matter was marked to him for further investigation. Thereafter, on 12.08.2020, he served notice U/s 41A Cr.P.C. upon the accused Nahar Singh and Kuldeep Ex.PW5/A and Ex.PW5/B and recorded the disclosure statement of both the accused persons Ex.PW5/C and Ex.PW5/D. Both the accused persons were released on pabandinama. He recorded the statement of witnesses. The investigation was concluded and charge-sheet was prepared and file before the Court for adjudication. In the cross-examination, he stated that he recorded the statement of Mehar Singh on 13.08.2020. Mehar Singh did not tell him that there was a property dispute with accused.
9. PW6 Lal Singh deposed that there was a dispute among him and his brother Kuldeep regarding the ancestral property. On 06.04.2018, he was reading newspaper in the street. At about 7:00am, his brother Kuldeep and his son Nahar Singh came there. Nahar Singh was armed with a kassi and they both went after his son Om Kumar to hit him with the kassi. Nahar Singh came towards him armed with the kassi. He went towards his neighbours house to save himself. Thereafter, the accused persons threatened them that they would kill Om Kumar and somebody called the police. Police came to the spot. Accused Nahar Singh went to his house prior to the police reaching to the spot. Police recorded his statement. In the cross-examination, he stated that he had witnessed the incident himself. He was reading newspaper in the gali outside his house. He stated that there was a dispute regarding the property in question as it was an ancestral property. He stated that the property had not been partitioned till date. Nahar Singh was holding kassi and Kuldeep Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 8 of 22 Abhinav Ahlawat Ahlawat Date:
2024.02.29 11:16:22 +0530 was holding iron rod. He did not know if Babita was there at the spot. Police had come to the spot. Their house was at a greater height than the house of the accused persons.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
10. 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 statements of the accused persons were recorded on 15.04.2023 without oath under section 281 r/w 313 Cr.PC, wherein they have stated that they were innocent and had been falsely implicated in the present case. They stated that the complainant was aggressor as they had pelted stones upon them and his house was at a lesser height and they had been falsely implicated. They further stated that they want to lead defence evidence.
ORAL EVIDENCE DW-1 Nahar Singh DW-2 Kuldeep DOCUMENTARY EVIDENCE Mark A Photograph
11. DW1 Nahar Singh deposed that on 06.04.2018 at about 07:00 am, he was cleaning the drain outside his house. After sometime, Om Kumar came and abused him and went away in the gali. Then, he saw that Om Kumar went to the terrace of his house and started pelting stones towards their house. In order to save himself, he also threw some stones towards him. The complainant had lodged a false case as there was a property dispute between them. He had produced the photograph showing his house and tin shed on which the complainant had thrown bricks and he proved the Digitally signed FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 9 of 22 by Abhinav Abhinav Ahlawat Ahlawat Date:
2024.02.29 11:16:31 +0530 photographs as Mark A. In the cross-examination by Ld. APP, he stated that he had not lodged any complaint against Om Kumar to the Police or to any court of law. The said photograph was being clicked by a photographer and no certificate U/s 65B IEA had been filed with the photograph to prove its authenticity. The premises shown in the photograph mark A was not his house but a vacant plot used by him to store fodder.
12. DW2 Kuldeep deposed that on 06.04.2018, he was inside his house. At that time, his son Nahar Singh was cleaning the drain. When he came out, he saw Om Kumar came out of his house and started verbally abusing his Son Nahar Singh and thereafter, went back to his house. Thereafter, Om Kumar went to the terrace of his house and started pelting stones towards his house and somebody called on 100 number and police came to the spot. Thereafter, the police took them to the PS. There was property dispute between them and the complainant. In the cross- examination, he stated that he lodged a complaint against Om Kumar to the Police. He did not have any proof regarding the said lodging of complaint against Om Kumar to the police.
ARGUMENTS
13. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
14. It is argued by the Ld. APP for the State that all the ingredients of the offences are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 10 of 22 Abhinav Ahlawat Date: Ahlawat 2024.02.29 11:16:39 +0530 has proved the offences beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
15. Per contra, the Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel for accused further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
16. The allegations levelled against accused persons are segregated into two parts:
Firstly, that accused persons on 06.04.2018 at about 07:00 am in furtherance of their common intention committed house trespass by entering into the house of the complainant Om Kumar having made preparation for causing hurt and attempted to voluntarily cause hurt to the complainant and thereby committed offence punishable under section 452/34 IPC and u/s 323/511 IPC.
Secondly, accused persons further threatened to kill the complainant and thereby committed offence punishable under section 506/34 IPC.
17. Let us deal with the first set of allegations against the accused persons regarding the offence punishable under section u/s 452/34 IPC and u/s 323/511 IPC. Before delving into the merits Digitally signed by Abhinav Abhinav Ahlawat Date: FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 11 of 22 Ahlawat 2024.02.29 11:16:48 +0530 of case, it is apposite to delineate the ingredients of the offences for which the accused has been tried.
Section 323 of the Indian Penal Code (IPC) deals with punishment for voluntarily causing hurt. It states that whoever voluntarily causes hurt to any person shall be punished with imprisonment, which may extend to one year, or a fine to one thousand rupees, or both.
Section 452 of the Indian Penal Code (IPC) says that whoever commits a house-trespass, after doing some groundwork and preparation to hurt or attack an individual or to wrongfully restrain them, thereby causing assault, shall be punished with imprisonment of maximum 7 years and/or fine.
Section 511 of the Indian Penal Code (IPC) deals with punishment for attempt to commit offence. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
18. The prosecution has examined three witnesses to prove its allegations qua offence u/s 452/34 IPC and u/s 323/511 IPC, they are PW1/ Complainant Om Kumar, PW2 Mehar Singh and PW6 Lal Singh as other witnesses are not the witnesses of the incident rather part of the investigation. Let us examine testimony of PW1, PW2 and PW6 for the allegation of offence under section 452/34 IPC and u/s 323/511 IPC.
19. PW1 stated that on 06.04.2018 in the morning at about 07:00 am when he was at the gate of his house, accused Nahar and Kuldeep attacked him and that accused Nahar was having a kassi, Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 12 of 22 Abhinav Ahlawat Ahlawat Date:
2024.02.29 11:16:55 +0530 whereupon he ran back to save himself and that accused Nahar Singh picked a brick and through the same at him but the brick did not hit him. PW1 further stated that thereafter accused Nahar went to the roof of his house and started throwing bricks towards his house. Upon which complainant called on 100 number and police arrived at scene. In his cross examination PW1 admitted that the property in which he is currently residing is among the disputed property and that the entire ancestral property is in dispute. Similarly, PW2 corroborated the version as stated by complainant PW1 and stated that he was present at the first floor of his house when he saw accused Nahar Singh armed with kassi and accused Kuldeep entering into the house/street of complainant PW1. Also, PW2 admitted in his cross examination that there is property dispute going on between the accused persons and the complainant regarding the street rights. PW6 who is father of complainant stated that there is dispute between him and his brother accused Kuldeep regarding ancestral property and that on the date of incident, accused Nahar Singh armed with kassi went after his son Om Kumar to hit him and also towards him but he went towards his neighbors house to save himself. In his cross-examination, PW6 admitted that the property between them has not been partitioned and that accused Nahar Singh and Kuldeep had gone 100 feet inside their house.
20. At this stage it is important to peruse the CCTV footage as tendered by the complainant. PW1/complainant on 29.12.2019 when he had joined the investigation in the present matter produced the CDs regarding the CCTV footage of the incident and the same were handed over by him to the IO PW4 SI Leela Ram which was seized by IO vide seizure memo Ex.PW1/B and the certificate U/s 65B regarding the CCTV footage and the Digitally signed by Abhinav Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 13 of 22 Date:
Ahlawat 2024.02.29 11:17:20 +0530 mobile phone recording was given by him Ex.PW1/C. Therefore, the mandatory requirement as per Section 65B of the Indian Evidence Act has been compiled with. CCTV footage is proper and clear and the origin of the CCTV is proved beyond reasonable doubt, it will be enough to establish the actus - reus at the instance of the accused persons. At this stage, it is relevant to mention that the Apex Court in Tomaso Bruno & Anr. v State of U.P, SCC 178, AIR 2015 SC (SUPP) 412, observed that CCTV footage is a strong piece of evidence which is both relevant for prosecution and defence.
21. Perusal of the CCTV footage as given by the complainant by way of four DVDs, out of which the footage of camera no.2 dated 06.04.2018 with time stamp in the video as 07:19 am till 07:20 am, wherein accused Nahar Singh in white shirt along with accused Kuldeep in white colour vests can be seen at the entrance of the gali/street, wherein accused Nahar Singh is seen charging towards the complainant PW1 Om Kumar who seen in a black colour T-shirt. Accused Nahar Singh who is armed with a kasi is seen charging towards complainant and accused Nahar Singh with his father i.e. accused Kuldeep is also seen coming in the said gali. As evident in the footage, upon seeing the accused Nahar Singh charging towards him, PW1/complainant Om Kumar is seen running to save himself and thereafter, accused Nahar Singh is seen picking up a piece of brick in his left hand and throwing the same towards PW1/ complainant. Although the said brick does not hit the complainant as he had run away before the brick could hit him. Immediately thereafter, both accused persons are seen going back on the main road from the said gali and are no longer seen in the said footage.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 14 of 22 Ahlawat Date:
2024.02.29 11:17:37 +0530 Another point which needs to be taken note of that in the said video at time stamp of 07:20 and exactly at 50 seconds of 07:20 am, one piece of brick is seen falling from the above in the said gali although the thrower of the said brick is not visible. Family members of complainant especially ladies are seen walking in between during some moment and accused Kuldeep is also seen for some moment at the entrance of the said gali.
22. In another camera footage seized during the investigation, which is apparently made through a mobile phone wherein accused Nahar Singh is seen standing on the terrace throwing stones/ bricks towards the house of complainant. The authenticity of the footage is not in dispute. The only explanation which has come from the side of defence regarding the alleged act of accused person which both the accused led in their defence is that Om Kumar had abused accused Nahar Singh when he was cleaning the drain outside his house and thereafter, Om Kumar went on the terrace of his house and started pelting stones and in order to save themselves, accused Nahar Singh also thrown some stones. Other CCTV footage furnished are of different cameras installed in the said gali although accused persons are not visible in the said camera angles, thereby for the purpose of prosecution the footage of camera no.2 dated 06.04.2018 between the time stamp of 07:19 am to 07:21 am are only relevant.
23. Therefore, the version as stated by complainant PW1 and PW2 with PW6 finds corroboration in the form of the CCTV footage on record. Nothing material qua the said CCTV footage was asked by the counsel for accused persons during the cross examination. CCTV being material evidence shows the actus reus of the accused persons.Digitally signed by Abhinav
FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 15 of 22 Abhinav Ahlawat Date:
Ahlawat 2024.02.29 11:17:44 +0530
24. Both accused Kuldeep Singh and Nahar Singh also deposed in their defence evidence as DW1 and DW2. What both accused have stated in their defence is that when DW1was cleaning the drain outside his house, then complainant Om Kumar came out and started verbally abusing DW1, and thereafter he went back on his terrace and started pelting stones from there. It is the specific defence of both the accused person that, in order to save themselves, they had also started throwing stones towards the complainant.
In his cross-examination, DW1 admitted that he had not lodged any complaint against the complainant for throwing stones towards him and similarly, in his cross examination, DW2 also stated that he did not have any proof regarding the lodging of any complaint against the complainant for throwing/ pelting stones towards his house. DW1 further produced one photograph mark A showing the premises in the photograph to be not his house but one vacant plot used by him to store fodder. Further, the said photograph shows two plots, one with small room having tin shed and other one being vacant with one tree in it. DW1 also stated in his examination in chief that as shown in the photograph, the tin shed had some bricks over it to show that complainant had thrown bricks upon which the incident happened. DW1 also stated that he had not filed any certificate under section 65B Indian Evidence Act regarding the authenticity of the said photograph and that he also stated that the point of filing the said photograph was to show that it was not his house, but a vacant plot used by him to store fodder.
Although the admissibility of the photograph mark A is already under question in the absence of the certificate under Digitally signed by Abhinav Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 16 of 22 Date:
Ahlawat 2024.02.29 11:17:51 +0530 section 65 Indian Evidence Act, however, prima facie also, it only shows two plots one build up with one room having tin shed and certain bricks lying on it. But again, the same does not anywhere denotes that this photograph was taken on the date of the incident in question. Furthermore, the CCTV footage showcasing the act of incident is already on record, thereby the photograph as placed on record by DW1 is inadmissible and cannot be read into evidence.
25. Offence of criminal trespass is defined u/s 441 IPC and the same is punishable u/s 447 IPC. In order to prove the offences u/s 452 IPC, the prosecution has to prove that the accused persons committed criminal trespass by entering into the house of PW1 having made preparation for causing hurt. The central premise of Section 452 IPC revolves around unauthorized intrusion into a dwelling or any other location, coupled with the intent to perpetrate harm, assault, or wrongful restraint upon the occupants.
26. Ld. defence counsel argued that there is no evidence on record to show that the incident happened in the premises of the complainant/ victim and that the street/ gali is common to all and not exclusively in possession of complainant or his family members.
27. At this stage, it is relevant to peruse the site plan which is Ex.PW1/D which was prepared by IO PW4 at the instance of complainant. Site plan mentions Mark XA as the place where the incident was stated to have happened and just ahead of Mark XA a gate is stated to be installed. Futhermore, as per the site plan, the house of the complainant Om Kumar is stated at the end of the said street and Mark XA is denoted right alongside the house Digitally signed by Abhinav FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 17 of 22 Abhinav Ahlawat Date:
Ahlawat 2024.02.29 11:17:57 +0530 of accused Kuldeep and one Laxman. Furthermore, the house of Kuldeep is shown on the front alongwith the main gali of gaon of Village Jafarpur and behind the house of Kuldeep, three houses of Lalit, Bhoop Singh and Omkar is mentioned. The said gali ends at the house of Omkar and it is not clear from the site plan whether the house of Omkar situated at the end of said gali is on the front or on the back of said gali. The same aspect is also clearly visible upon perusing the CCTV footage as placed on record by the complainant. Further, both complainant PW1 and his father PW6 have already admitted in their cross examination that the entire ancestral property has not been partitioned as yet therefore, the fact that the complainanat was in exclusive possession of the street in question has not been established by the prosecution beyong reasobable doubts. This being the main ingredients to be proved for sustaining the charge under section 452 IPC, the charge under section 452 IPC is not made out and accordingly, both accused persons are acquitted for the offence under Section 452/34 IPC.
28. Furthermore, as accused persons are also charged for the offence punishable under Section 323/511 IPC, i.e. for attempting to voluntarily causing hurt to the complainant, it would be profitable to mention the ratio as held in Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698 : (1961) 2 CrL.J 822 : 1962 BLJR 1 : 1962 AIl WRHC) 6, wherein it was held that, a person commit offence of "attempt" if he intends to commit an offence and with that intention takes any step towards the commission of that offence. For constituting "attempt" it is not necessary that the act done must be the penultimate act towards the commission of the offence, or that the completion of the offence, must be prevented by circumstances beyond the control of the offender.Digitally signed by Abhinav
Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 18 of 22 Ahlawat Date:
2024.02.29 11:18:04 +0530 There is a thin line between the preparation for committing an offence an offence. Attempt to commit an offence can be said to begin when the preparations for committing it are complete and the offender commences to do something with the intention of committing the offence which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. It follows, therefore, that the act which constitutes "attempt" to commit an offence within the meaning of section 511 of the Indian Penal Code, 1860 must be an act which, by itself or in combination with other acts, leads to the commission or the offence. Thus, there are two requirements of the offence of attempt to commit an offence, namely, the act must be done with the intention to commit the offence, and the act must be a step towards the commission of the offence.
29. Since the word attempt has not been defined in the Indian Penal Code, it is to be taken in ordinary meaning. An attempt to commit an offence begins when the preparations are complete and the culprits commences to do something with the intention of committing the offence and that is the step towards commission of the offence. The moment he commences to do an act with the necessary intention, he commences the attempt to commit the offence.
30. In the present case, as evident upon the perusal of the CCTV footage, where both the accused person are seen entering into the galli and accused Nahar Singh with Kassi is seen charging towards the complainant, and thereby accused Nahar Singh also threw a piece of brick towards the complainant, which though did not hit the complainant as he had ran away. However, there was Digitally signed by Abhinav Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 19 of 22 Ahlawat Date:
2024.02.29 11:18:12 +0530 clear intention on the part of the accused, Nahar Singh to commit the offence of causing injury upon the complainant.
31. Although there is no MLC of the complainant on record as he was not medically examined as he had not sustained any injury but as visible in the CCTV footage, the brick as thrown by the accused Nahar Singh never touched the complainant. PW1 also stated that he did not sustain any injury in the incident in question.
Therefore, offence of attempt is made out against the accused nahar Singh only.
32. No specific role is visible on the part of the accused Kuldeep for attempting any offence against the complainant in the CCTV footage. Although, PW1 stated in his testimony that accused Kuldeep instigated accused Nahr Singh for the said offence, however, in the absence of any corroborative evidence, the said fact is not established. In these circumstances, it is the opinion of the Court that it is not safe to convict the accused Kuldeep Singh for the offence u/s 323/511 IPC and thereby he stands acquitted for the offence punishable under Section 323/511 IPC.
33. In view of the above discussion, the prosecution has proved beyond shadow of reasonable doubt that accused Nahar Singh attempted to voluntarily cause hurt to the complainant and accordingly, accused namely Nahar Singh is hereby convicted for the offence U/s 323/511 IPC.
34. The second set of allegations against the accused persons revolves around commission of offences u/s 506/IPC.
Section 506 of the Indian Penal Code (IPC) deals with punishment for criminal intimidation. Whoever commits, the offence of criminal Digitally signed by Abhinav Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 20 of 22 Date:
Ahlawat 2024.02.29 11:18:19 +0530 intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. Following are the essentials of the offence of Criminal Intimidation as defined under section 503 IPC:-
a. It must be a positive act of causing threat to a person; b. It must be directed towards his person, property or reputation; c. It must be directed towards the person or reputation or property of anyone in whom the victim is interested;
d. It must be done with the intention of causing alarm to such a person; or e. It must cause him to do something which he is not legally bound to do or refrain him from doing something which he is legally bound to do.
35. In the present case, as discussed above no evidence has been brought on record by the prosecution to prove the fact that the threat extended to the complainant had caused any alarm to him or due to the threat, he had omitted from any of his work. In fact, nothing has been stated by the complainant PW1 in his testimony that accused persons gave any threats to him. In the opinion of this court, the prosecution has failed to prove its case u/s 506 IPC as there is nothing on record to suggest that threat extended to the complainant has caused any alarm to him and due to the alleged threat, he was alarmed to such an extent that he was not able to carry out his daily life. Thus, in the absence of any evidence to the effect that no alarm has been caused to the complainant due to the threat extended by both the accused persons, no offence u/s 506 IPC is made out against both the accused persons, and are therefore, acquitted for the offence u/s 506 IPC.
Conclusion
36. The upshot of the foregoing discussion is that the prosecution evidence, both oral and documentary, including the surrounding Digitally signed by Abhinav Abhinav Ahlawat FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 21 of 22 Date:
Ahlawat 2024.02.29 11:18:27 +0530 circumstances leads to the only conclusion that accused Nahar Singh attempted to voluntarily cause hurt to complainant and loopholes pointed out by defence are not sufficient to disbelieve the prosecution case. The prosecution has been able to establish beyond reasonable doubts all the ingredients of Sections 323/511 IPC.
37. In the light of above discussions, the Court is of the view that prosecution has been successful in establishing the guilt of the accused Nahar Singh beyond reasonable doubt and accordingly, accused Nahar Singh is convicted for offence punishable u/S 323/511 IPC.
38. Let the convict Nahar Singh be heard separately on the quantum of sentence.
Copy of this judgment be given free of cost to the convict.
Announced in the open court Digitally signed
on 29.02.2024 in the presence Abhinav by Abhinav
Ahlawat
of the accused persons. Ahlawat 11:18:34
Date: 2024.02.29
+0530
(Abhinav Ahlawat)
Metropolitan Magistrate-09,
Dwarka, Delhi/29.02.2024
This judgment contains 22 pages and each page has been signed by me. Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2024.02.29 11:18:40 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/29.02.2024 FIR No.143/18, PS Jafarpur Kalan State vs. Nahar Singh etc. Page 22 of 22