Delhi District Court
State vs . Naveen Lakhani And Another on 28 March, 2013
IN THE COURT OF SH. DHIRENDRA RANA: METROPOLITAN
MAGISTRATE02/WEST : DELHI
STATE Vs. Naveen Lakhani and another
FIR No. : 52/2007
U/SEC : 392/506/34 IPC
PS Hari Nagar Delhi
Unique Case ID Number : 02401R1383362007
JUDGMENT
Serial No. of the case 715/II/07
Date of commission of offence 29.01.2007
Date of institution of the case 07.09.2007
Name of the complainant Virender Singh s/o Sh. Ram Bhajan
Singh r/o 62, Gopal Pur, Timar Pur,
Delhi
Name of accused, parentage & address 1.) Naveen Lakhani s/o Sh. Kundan Lal Lakhani r/o 15/45, Subhash Nagar, New Delhi.
2.) Dheeraj Lakhani s/o Sh. Kundan Lal Lakhani r/o 15/45, Subhash Nagar, New Delhi.
Offence complained or proved Section 392/506/34 IPC Plea of the accused Pleaded not guilty Date of arguments 19.03.2013 Final order Convicted under section 323/34 IPC Date of Judgment 28.03.2013
1. Vide this judgment I shall dispose off the present case filed by ASI Jai Hind Singh on the complaint of Sh. Virender Singh against accused Naveen Lakhani and Dheeraj Lakhani for committing offences under FIR No. 52/2007 PS Hari Nagar Page No. 1 of 9 sections 392/506/34 of Indian Penal Code (hereinafter referred as IPC).
BRIEF FACTS:
2. Briefly stated facts of the case are that on 29.01.2007 complainant was working in the capacity of driver of blue line bus bearing No. DL1PB0169 on route No. 108. When he reached near Hari Nagar Ghanta Ghar, accused persons who were owner of other blue line bus bearing No. DL1PB0444 abused him and started beating him with fist and leg blows. They also took out Rs. 1400 from the pocket of complainant. Complainant was saved by the public and police was called at number 100. complainant suffered injuries and he was taken to DDU Hospital and was examined vide MLC No. 1936/07. DD entry No. 33A at 01:12 PM was registered at PS Hari Nagar. IO ASI Umed Singh recorded the statement of complainant in hospital and got the FIR registered through Ct. Naresh Chand under section 323/341/506/34 IPC.
3. After completion of investigation, charge sheet was filed on 07.09.2007. Section 392 IPC was added in the charge sheet during the investigation. Copies under section 207 CrPC supplied to both the accused persons on 10.04.2008. On 07.05.2010 charge for the offences under section 392/506/34 IPC was framed against both the accused FIR No. 52/2007 PS Hari Nagar Page No. 2 of 9 persons to which they pleaded not guilty and claimed trial. Thereafter matter was put up for prosecution evidence.
EVIDENCE RECORDED DURING TRIAL:
4. Prosecution has examined eight witnesses to prove its case against both accused persons.
5. PW1 HC Krishan Kumar exhibited copy of FIR as Ex. PW1/A and endorsement on rukka as Ex. PW1/B.
6. PW2 HC Naresh Chand accompanied the IO to the spot and got the FIR registered.
7. PW3 is complainant Virender Singh. He exhibited his complaint as Ex. PW3/A and site plan as Ex. PW3/B.
8. PW4 is Surender Pal Singh was the owner of the vehicle bearing No. DL1PB0169.
9. PW5 Ranjeet Singh was working as a conductor in the said bus and is an eye witness to the incident.
10.PW6 is ASI Jai Hind Singh. He exhibited arrest memo of accused Naveen Lakhani and Dheeraj Lakhani as Ex. PW6/A and Ex. PW6/B and their personal search memos as Ex. PW6/C and Ex. PW6/D respectively.
11. PW7 ASI Umed Singh, who is the first IO of this case, exhibited the rukka as Ex. PW7/A. FIR No. 52/2007 PS Hari Nagar Page No. 3 of 9
12.PW8 Desh Raj, record clerk DDU Hospital, exhibited MLC No. 1936 prepared by Dr. Piyush as Ex. PW8/A.
13.Thereafter, prosecution evidence was closed vide order dated 16.02.2013. Statement of accused under section 281 read with section 313 CrPC were recorded on 01.03.2013 in which they pleaded false implication and opted not to lead defence evidence.
14. I have heard the final arguments put forth by ld. APP for the State and Ld. Defence Counsel.
BRIEF REASONS FOR THE DECISION:
15.Accused persons have been charged under section 392/506/34 IPC.
Before proceeding further I would like to reproduce the sections as under:
Section 392 IPC: Punishment for robbery-"Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." Section 506 IPC: Punishment for criminal intimidation-"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
FIR No. 52/2007 PS Hari Nagar Page No. 4 of 9 If threat be to cause death or grievous hurt, etc."And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or (imprisonment for life), or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
16.To prove the allegations under section 392 IPC, prosecution was bound to prove the essential ingredients of section 390 IPC. Section 390 IPC talks about those circumstances when theft becomes robbery.
Section 390 IPC is reproduced here under:
Section 390 IPC: RobberyIn all robbery there is either theft or extortion.
When theft is robbery "Theft is "robbery" if, in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint." Applying the definition of section 390 IPC to the facts of the prosecution case, it is clear that prosecution has failed to prove the fact that accused persons committed theft during the incident. Prosecution FIR No. 52/2007 PS Hari Nagar Page No. 5 of 9 has examined complainant as PW3 but he has not supported the prosecution on the point that accused persons snatched any money from him during the incident. He stated that he is not sure who took Rs. 3000 from his pocket during the incident. He specifically denied the suggestion put by Ld. APP that Rs. 1400/ was taken by the accused persons from his pocket. He specifically stated that he never told the police that accused took out Rs. 1400 from his pocket. Hence, complainant deposed as hostile witness with regard to taking out money from his pocket by the accused persons.
17. PW5 is also an eye witness to the incident. He stated that accused persons took out money from the pocket of complainant but he failed to disclose the amount of money taken by the accused persons. When deposition of PW3 and PW5 are compared to each other, it is not clear how many rupees were taken out from the possession of the complainant and who took them from the possession of complainant.
In absence of that, allegations of section 392 IPC are under suspicion and benefit of doubt created by statements of PW3 and PW5 goes to the accused persons. Hence, both accused persons are acquitted for committing offence under section 392/34 IPC.
18.Ld. Defence Counsel submitted that prosecution has also failed to prove the allegations under section 506/34 IPC against the accused persons whereas Ld. APP submits that PW3 has stated in his FIR No. 52/2007 PS Hari Nagar Page No. 6 of 9 examination in chief that accused persons threatened him that they will kill him if in future he would come late. The deposition of complainant in this regard has gone unrebutted and not even a single word has been spoken from the defence during his deposition.
The point raised by Ld. APP for the State is correct but allegations under section 506 IPC cannot be said to be proved against any accused persons in this manner. Prosecution is bound to prove the effect of threat given by the accused to the victim. It is not stated by the victim that what was the effect of the threat extended by the accused persons. Normally, during the scuffle, parties utter so many words but they never have to the intention behind those utterances. Merely stating that they would kill the victim does not mean that they had real intention to kill the victim.
So, it cannot be presumed that they caused an alarm to the complainant by that threat. In absence of that alarm or desired effect of the threat, allegation under section 506 IPC cannot be said to be proved by the prosecution.
19.Ld. Defence counsel submitted that prosecution has not examined any of those persons who were present in the bus where the accused persons committed the alleged incident. Moreover, complainant gave his statement at the instance of his owner. Therefore, present case is a cook and bull story which has been cooked up by the complainant at FIR No. 52/2007 PS Hari Nagar Page No. 7 of 9 the instance of his owner due to business rivalry with the accused persons.
20.It is mere discretion of the prosecution to examine as many witnesses to prove its case against the accused. The ground taken by defence that no public witness has been examined by the prosecution is without any merits. Prosecution has examined PW5 as an eye witness and it cannot be said that he is not a public witness or he is an interested witness. As far as number of witness to be examined to prove the allegations against the accused is concerned, this point has been deliberated over by the Hon'ble Supreme Court in case titled as Ramesh Krishna Madhusudhan Naiyar Vs. State of Maharashtra AIR 2008 Supreme Court 927 has considered this argument and held as under:
"Coming to the question whether on the basis of a solitary evidence conviction can be maintained, a bare reference to Section 134 of the Evidence Act, 1872 would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained."
FIR No. 52/2007 PS Hari Nagar Page No. 8 of 9
Keeping in view the ratio laid down by the Hon'ble Supreme Court, I find no merit in plea of defence that non examination of public witness is fatal to the prosecution case. PW5 is an eye witness and he has supported the prosecution case. It is the quality and not the quantity of evidence which is material in a criminal trial. Therefore, arguments put forth by Ld. Defence Counsel is of no avail and hence rejected.
21. Prosecution has failed to prove charges under section 392/506/34 IPC but it is proved that accused persons were present at the spot and they assaulted the complainant. PW3 and PW5 have deposed in an equivocal manner that both accused persons had beaten the complainant and inflicted injuries on his person. Prosecution has also proved the MLC vide which complainant was examined at DDU hospital. As per MLC injuries were simple blunt. Therefore, as per material available on record, it is proved that accused persons have committed offence under section 323/34 IPC.
22.Matter be listed for arguments on sentence on 04.04.2013 at 02:00 PM.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA
ON 28th March, 2013 MM02/WEST DELHI
FIR No. 52/2007 PS Hari Nagar Page No. 9 of 9