Delhi District Court
State vs Laxmi Narayan on 13 February, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 2149/2017
STATE Vs. LAXMI NARAYAN AND OTHERS
State vs. Laxmi Narayan and Others
FIR No. 438/2016
Police Station: Saket
Under Section: 323/325/506 Part II/34 IPC
Date of institution : 29.05.2017
Date of reserving : 20.01.2024
Date of pronouncement : 13.02.2024
JUDGMENT
a) Serial number of the : 2149/2017 case
b) Date of commission of : 12.05.2016 offence
c) Name of the : Sh. Jamil Hussain complainant
d) Name, parentage and : i) Laxmi Narayan S/o Sh. Ram address of the accused Parikshan R/o E-364, persons Dakshinpuri, New Delhi.
ii) Deepak S/o Sh. Laxmi
Narayan R/o As above.
iii) Raju S/o Sh. Laxmi Narayan
R/o As above.
iv) Prabhunath S/o Sh. Jagdish
R/o F-107, Jawahar Park, New
Delhi.
State vs. Laxmi Narayan and Others
FIR No. 438/2016, PS: Saket Page 1 of 22
e) Offence complained of : 323/325/506 Part II/34 IPC
f) Plea of the accused : Accused persons pleaded not
persons guilty
g) Final order : Accused Laxmi Narayan, Raju
and Deepak convicted
Accused Prabhunath acquitted.
h) Date of final order : 13.02.2024
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. Complainant Jamil Hussain and his brother, namely, Salim Khan were running vegetable shops at Shop No. 3 and Shop No. 6, Khoka Market, Opposite Punjab National Bank, Sector 1, Pushp Vihar, New Delhi. Complainant Jamil Hussain had kept his belongings in his Shop No. 6, which is beside the shop of accused Laxmi Narayan (A-1). On 12.05.2016 at about 12:00 noon, accused Laxmi Narayan (A-1) and his two sons i.e. Deepak (A-2) and Raju (A-3) were fixing bricks forcibly in front of the shop of the complainant i.e. Shop No. 6. The complainant objected to the same and thereafter, he made a call at 100 number pursuant to which the police officials arrived there. However, the accused persons fled away from the spot stating that the complainant was very fond of making complaints to the police and they (the accused persons) would teach a lesson to the complainant on the very day. The police officials took the complainant to the police station, where the complainant got his statement recorded. On the same day at about 02:30 pm, after State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 2 of 22 performing Namaz, when the complainant along with his brother reached at their shop i.e. Shop No. 3, the accused persons, who had come along with other two-three persons, assaulted the complainant and his brother. Accused Laxmi Narayan (A-1) was carrying an iron rod while the remaining accused persons were carrying wooden stick (Danda). Accused Laxmi Narayan (A-1) started beating the complainant with the iron rod and the remaining accused persons started beating the brother of the complainant with the wooden stick. While giving beatings to the complainant, accused Laxmi Narayan (A-1) threatened the complainant and his brother to kill them on the very day. While the accused persons kept on beating the complainant and his brother mercilessly, two shopkeepers i.e. Rizwan and Brahma Gupta in the vicinity, rescued the complainant and his brother. Thereafter, Rizwan called at 100 number pursuant to which the police officials arrived at the spot. The accused persons again fled away from the spot threatening the complainant and his brother to kill them. The police officials took the complainant and his brother to AIIMS Trauma Centre. The bone of the left hand of the complainant got fractured, in addition to the injury suffered by him in his right hand and nose. The brother of the complainant suffered various injuries on his entire body. Thereafter, the instant case was registered on the complaint of the complainant.
CHARGE
2. Vide order dated 27.06.2017, charge for the offences State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 3 of 22 punishable under Sections 323/325/506 Part II/34 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") was framed against the accused persons, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 12.12.2022, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), the accused admitted the genuineness of: i) Endorsement by the DO; ii) The present FIR;
iii) Certificate under Section 65B Indian Evidence Act; iv) MLC of injured Salim and Jamil bearing Nos. 559341/16 and 559342/16 respectively; and v) Reports of Radiologist of injured Salim and Jamil vide Ex A1 to A5.
EVIDENCE OF THE PROSECUTION
4. Prosecution has examined nine witnesses i.e. PW1 Sh. Jamil Hussain (the complainant), PW2 Sh. Rizwan, PW3 Sh. Brahma Gupta, PW4 Sh. Saleem Khan, PW5 Ct. Chander Prakash, PW6 ASI Puran Singh, PW7 SI Rakesh Kumar, PW8 Inspector Durgadas and PW9 HC Ramanand.
5. PW1 Sh. Jamil Hussain (the complainant) deposed that on 12.05.2016, he was present at his shop bearing No. 3 at Khokha Market, Sector 1, Pushp Vihar, in front of PNB Bank, Saket at about 11:30 AM. He was also running another shop bearing No. State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 4 of 22 6 in the said market. Accused Laxmi Narayan was running his shop bearing No. 7 in the said market and he was fixing bricks in front of the shop of PW1. PW1 objected to the same and asked him not to do so. However, accused Laxmi Narayan replied "Aise Hi Lagega" and thereafter, he abused PW1 with filthy language. PW1 called the police at 100 number and PCR van came at the spot. Thereafter, the police officials made inquiry from PW1. Accused Laxmi Narayan threatened PW1 saying "Tu Bar Bar Complaint Karta Hai, Ab Mai lska Maja Chakhauga, Na Tu Mera Kuch Bigar Sakta Hai Na Police". Thereafter, accused Laxmi Narayan left from there. The younger brother of accused Laxmi Narayan was present at the shop of Laxmi Narayan. Thereafter, the police officials took PW1 to the police station, leaving the brother of accused Laxmi Narayan at the spot. PW1 gave a written complaint to police official i.e. HC Rajeev Sharma pertaining to the above said incident. Thereafter, at about 1:00 pm, PW1 left the PS and went to a Mosque situated at Saket, where he offered Namaz. His brother, namely, Saleem also met him at the Mosque. After offering Namaz, they reached at their shops at about 02:20 pm, where they saw that the vegetables, which were kept in their shop, were scattered on the road. Thereafter, PW1 made inquiry from my neighbour, namely, Sonu pertaining to the said incident, but he did not give any reply. At that time, PW1 was siting on a scooter and his brother alighted therefrom and went inside their shop. In the meantime, accused Laxmi Narayan came from his shop and began to abuse PW1 with filthy language. Accused Laxmi Narayan was carrying 16 mm iron rod (measuring about 6 ft) in his hand and State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 5 of 22 assaulted PW1 with it. Accused Laxmi Narayan gave iron rod blow on the left hand of PW1. Thereafter, accused Laxmin Narayan tried to gave another blow on the body of PW1, however, in the meantime, his neighbour Rizwan held the said iron rod and rescued PW1. Due to the said impact, the left hand of PW1 was broken and he fell down on the road. Thereafter, he got up from the spot and went to his shop No. 3, Khokha Market, where his brother was present. In the meantime, accused Deepak, Raju and Prabhu Nath came at the shop of PW1, who were carrying danda and lathi in their hands. They assaulted PW1 and his brother with the help of said danda and lathi. Accused Deepak gave danda blow on the nose of PW1 due to which blood oozed out and fell on the cloths of PW1. PW1 further deposed that he had kept his bloodstained cloths and could have shown the same. He further deposed that his brother sustained injuries on his jaw and some of his teeth were broken in the said incident. The brother of PW1 also sustained invisible injuries on his person. PW1 further deposed that he also sustained invisible injuries on his person, apart from the above said injuries. The above said accused persons threatened PW1 and his brother, while they were beating them, saying "Inko Maar Do". Thereafter, Rizwan called the police at 100 number. Police officials came and shifted PW1 and his brother to AIIMS Trauma Center, where they were medically examined vide MLCs. Thereafter, SI Durgadas from PS Saket came to the hospital and made inquiry from PW1 and his brother. They narrated the above said incident to SI Durgadass, however, he did not record the statement of PW1 and obtained signatures of PW1 on a State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 6 of 22 blank paper. PW1 further deposed that the police officials did not take any action on his complaint. PW1 further deposed that the accused persons had threatened him and his brother, saying "Aaj Jinda Bach Gaye, Aage Tumhe Nahin Chhodenge". PW1 also deposed that the accused persons were still threatening PW1 and his brother of dire consequences. PW1 further deposed that despite his complaint to the police, visit to the office of the DCP and Police Headquarters, the police officials did not lodge an FIR in this case and, therefore, he filed an application under Section 156(3) of the Code. Eventually, the said application was allowed by the court and consequently, the present FIR was registered. PW1 further deposed that the site plan was not prepared in his presence. PW1 produced his complaint dated 18.05.2016 (Ex PW1/A) and copy (Mark PW1/B) thereof was given to the DCP, South on 24.05.2016. PW1 also produced a copy of his application moved under Section 156(3) of the Code (Mark PW1/C). He also produced a CD (Ex P1) showing the footage of the incident along with a certificate under Section 65B Indian Evidence Act, Ex CW1/D. PW1 also produced his bloodstained cloths i.e. pant and shirt (Ex P2) and one broken teeth (Ex P3). PW1 reiterated that still the accused persons were threatening him and his family, apart from hurling abuses. PW1 correctly identified all the accused persons. The witness was not cross- examined despite the opportunity given.
6. PW2 Sh. Rizwan deposed that he was running a fruit shop at Khoka Market, Pushp Vihar, Saket. On 12.05.2016 at about 02.20 pm, when he was present in his shop, Jamil and Saleem State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 7 of 22 came on scooter and asked PW2 "Meri Dukan Se Sabzian Kisne Girayin Hain". In the meantime, accused Laxmi Narayan came there and hit Jamil with iron rod and accused Deepak and Raju started beating Jamil and Saleem. One person, namely, Brahma Gupta tried to rescue Jamil and Saleem. PW2 made call at 100 number. After sometime, the police officials came there and shifted Jamil and Saleem to the hospital. Accused Laxmi Narayan, Deepak and Raju were correctly identified by PW2. The witness was duly cross-examined by the Ld. Defence Counsel.
7. PW3 Sh. Brahma Gupta, who was also a shopkeeper, at Khokha Market, Pushp Vihar, New Delhi, reiterated the version of PW2. Accused Laxmi Narayan, Deepak and Raju were also correctly identified by PW3. The witness was duly cross- examined by the Ld. Defence Counsel.
8. PW4 Sh. Saleem Khan, who is brother of the complainant, deposed that he along with his brother, namely, Jamil Hussain was running a vegetable shop at Khokha Market, Pushp Vihar, New Delhi. On 12.05.2016 at about 12:00 pm, accused Laxmi Narayan along with his sons, namely, Deepak and Raju was forcibly fixing bricks in front of the shop of PW4. The brother of PW4 made call at 100 number. After sometime, the PCR officials came there and took the brother of PW4 and accused persons to the PS. On 12.05.2016 at 02:20 pm, after offering Namaj, PW4 along with his brother reached at the shop. Thereafter, accused persons, namely, Laxmi Narayan, Raju, State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 8 of 22 Deepak, Prabhu Nath and two-three unknown persons started beating PW4 and his brother. At that time, accused Laxmi Narayan was carrying iron rod and accused Deepak, Raju and Prabhu Nath were having danda. PW4 was beaten by them with iron rod and danda. Accused Laxmi Narayan threatened PW4 and his brother, uttering "Aaj tum dono bhaio ko jaan se maar denge". The neighbours i.e. Rizwan and Brahma Gupta tried to rescue PW4 and his brother. Rizwan made 100 number call. Accused persons fled away from there, uttering "Aaj tum dono bach gaye ho, jab tak tum dono bhaio ko jaan se nahi maar denge tab tak hum log chain se nahi baithenge. Police hamara kuchh nahin bigad sakti". After sometime, PCR officials came there and shifted PW4 along with his brother to hospital, where they were medically examined. The witness correctly identified the accused persons.
9. PW5 Ct. Chander Prakash proved the arrest of accused Prabhunath and his disclosure statement vide memos Ex PW5/A and Ex PW5/B respectively. PW5 correctly identified accused Prabhunath. The witness was duly cross-examined by the Ld. Defence Counsel.
10. PW6 ASI Puran Singh proved the arrest of accused Laxmi Narayan and Deepak by IO SI Rakesh Kumar vide memos Ex PW6/A and Ex PW6/B respectively. PW6 also proved recording of their disclosure statement by the IO vide Ex PW6/C and Ex PW6/D respectively. Likewise, PW6 proved the arrest of accused Raju and recording of his disclosure statement by the IO vide Ex PW6/E and Ex PW6/F respectively. PW6 correctly identified State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 9 of 22 accused Laxmi Narayan, Deepak and Raju.
11. PW7 SI Rakesh Kumar (the IO) prepared site plan at the instance of complainant vide Ex PW7/A. He also recorded the supplementary statement of the complainant. Thereafter, he deposed as to the arrest and recording of disclosure statement of accused persons i.e. Laxmi Narayan, Deepak, Raju and Prabhunath. PW7 further deposed that he tried to search the weapon i.e. iron rod, however, the same could not be recovered as accused Raju had thrown the same somewhere in Asian Market. After completing investigation, the IO prepared charge sheet and filed it before the court. PW7/IO correctly identified all the accused persons. He was duly cross-examined by the Ld. Defence Counsel.
12. PW8 Inspector Durgadas deposed that on 12.05.2016, he received DD No. 29A regarding quarrel at Khokha Market, Saket. He reached there and found accused persons, namely, Laxmi Kant Thakur (wrong name appears being a typographical error) and his son Deepak Thakur present there. They were becoming violent and public persons had also gathered there. Thereafter, PW8 prepared Kalandra under Section 107/151 of the Code and submitted the same before SEM Court, South District. After sometime, while PW8 was present at the spot, he received information as to MLC No. 559341/16 of Salim Khan and MLC No. 559342/16 of Jamil Hussain. Thereafter, he went to AIIMS Trauma Centre, where he collected both the MLCs wherein A/H/O assault was opined. Both the injured did not give any statement to PW8. Thereafter, PW8 came back to spot. He had State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 10 of 22 already sent both the accused persons to PS with Ct. Ramanand as Ct. Ramanand had come with PW8 to the spot. PW8 tried to search independent witnesses of the incident but of no avail. After few days, complainant Jamil Hussain gave his written complaint to PS. PW8 prepared rukka on the same vide Ex PW8/A and got the present FIR registered. Thereafter, the further investigation was handed over to SI Rakesh. Accused Laxmi Kant Thakur and Deepak were correctly identified by PW8. PW8 was duly cross-examined by the Ld. Defence Counsel.
13. PW9 HC Ramanand deposed that on 12.05.2016, IO SI Durga Das received DD No. 29A regarding quarrel at Khokha Market, Saket. Thereafter, PW9 along with IO reached there, where they found accused persons, namely, Laxmi Kant Thakur (wrong name appears being a typographical error) and his son Deepak Thakur present. They were becoming violent and public persons had also gathered there. Thereafter, PW9 and SI Durga Das tried to make them understand, stay calm and not to fight. However, they did not stop and were becoming violent. Upon that, IO prepared Kalandra under Section 107/151 of the Code. In the meantime, IO received information regarding admission of injured in the said quarrel. Thereafter, PW9 along with IO reached at AIIMS Trauma Centre, where IO collected MLC of injured persons. Accused Laxmi Kant Thakur and Deepak were correctly identified by PW9. PW9 was duly cross-examined by the Ld. Defence Counsel.
STATEMENT / DEFENCE OF THE ACCUSED PERSONS
14. In their respective statement recorded under Section 313 of State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 11 of 22 the Code, the accused persons denied the entire evidence against them. They stated that they are innocent and have been falsely implicated in this case. They did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
15. The record has been thoroughly and carefully perused. The respective submissions of Sh. Naresh Choudhary, Ld. Assistant Public Prosecutor for State and Sh. M.K. Pandit, Ld. Counsel for the accused persons have been considered.
Re: Law relating to Section 34 of IPC
16. Before appreciating the evidence, it is prudent to discuss the law relating to Section 34 of IPC. The meaning and scope of Section 34 of IPC has been discussed in detail by the Hon'ble Supreme Court in the case of Barendra Kumar Ghosh vs. King Emperor [AIR 1924 CAL 257]. The Apex Court has held that Section 34 deals with the doing of separate acts, similar or diverse, by several persons. If all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself; for that act. "That act" includes the whole action covered by the criminal act. Criminal act means that unity of criminal behavior which results in something for which an individual would be responsible, if it were all done by himself alone.
State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 12 of 22
17. The essence of liability under Section 34, is conscious meeting of minds of persons participating in criminal action to bring about a particular result. As held in the case of Sudip Kumar Sen vs. State of West Bengal [(2016) 3 SCC 26] question as to whether there was any common intention or not depends upon inference to be drawn from proved facts and circumstances of each case. Totality of circumstances must be taken into consideration in arriving at conclusion whether accused had a common intention to commit offence with which they could be convicted.
18. The Hon'ble Supreme Court in the case of Surendra Chauhan vs. State of Madhya Pradesh [(2000) 4 SCC 110] has held that the essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. There are three essential ingredients of Section 34 of IPC namely:
a) Criminal act must be done by several persons (i.e. at least 2 persons);
b) Criminal act must be done in furtherance of common intention; and
c) Participation of all persons in furthering the common intention.
19. Further, it is settled proposition of law that in order to invoke principle of joint liability in commission of criminal act as laid down in Section 34, prosecution should show that criminal act in question was done by one of the accused persons State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 13 of 22 in furtherance of common intention of all. Common intention may be through a pre-arranged plan, or it may be generated just prior to the incident. Common intention denotes action in concert, and a prior meeting of minds. The acts may be different, and may vary in their character, but they are all actuated by the same common intention. Question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. Totality of the circumstances must be taken into consideration in arriving at the conclusion whether accused persons had the common intention to commit the offence. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Virender vs. State of Haryana [(2020) 2 SCC 700]. It is pertinent to note that participation in the commission of offence is a necessary element or condition precedent under Section 34. In offences involving physical offence, actual physical presence of the accused, apart from participation, is required. In other cases involving non-physical violence such as cases of misappropriation, cheating etc., physical condition could not be a condition precedent to come to a finding of a joint liability.
Re: Section 323/325/506/34 of IPC
20. Section 323 of IPC prescribes punishment for voluntarily causing hurt. Hurt has been defined in Section 319 of IPC as causing bodily pain, disease or infirmity to any person. Voluntarily causing hurt has been defined in Section 321 of IPC as causing of hurt by an act which is either done with the State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 14 of 22 intention of causing hurt to any person or with the knowledge that he is likely thereby to cause hurt to any person. Section 325 of IPC prescribes punishment for voluntarily causing grievous hurt. Grievous hurt has been defined in Section 320 of IPC and includes eight categories of hurt which have been designated as grievous. Voluntarily causing grievous hurt has been defined in Section 322 of IPC as causing of grievous hurt by an act which is either done with the intention of causing grievous hurt to any person or with the knowledge that he is likely thereby to cause grievous hurt to any person. In the explanation to Section 322 of IPC, it is mentioned that grievous hurt may be voluntarily caused where if the accused intended or knew himself to be likely to cause grievous hurt of one kind and he actually causes grievous hurt of another kind.
21. The case of the prosecution is that the accused persons, in furtherance of their common intention, assaulted the victims Jamil and Saleem and caused grievous injuries to Jamil and simple injuries to Saleem. The accused persons have admitted the MLCs dated 12.05.2016 of the victims Jamil and Salim which state that grievous injuries were suffered by victim Jamil and simple injuries were suffered by accused Salim. Therefore, it is an admitted position that the victims suffered injuries on the date of the incident. The point of contention is whether the injuries were suffered on account of assault by the accused persons.
22. PW1 complainant/victim Jamil has deposed in conformity with his complaint. He categorically deposed that accused Laxmi State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 15 of 22 Narayan came from his shop and hit him on his head with an iron rod. When accused Laxmi Narayan tried to strike again with the iron rod, PW Rizwan intervened and rescued the victim Jamil. In the meantime, accused persons Deepak, Raju and Prabhunath, assaulted complainant as well as his brother i.e. victim Saleem with sticks. PW1/complainant Jamil also produced his blood- stained clothes and broken teeth which have been duly exhibited as Ex. P2 and P3. Despite grant of opportunity, PW1/complainant Jamil was not cross-examined by the Ld. Counsel for accused persons. Therefore, the deposition of PW1/complainant Jamil remains unrebutted and uncontroverted.
23. The other victim PW4 Saleem has also deposed in support of the prosecution case. He also deposed that the accused persons assaulted him and PW1/complainant Jamil and they were rescued by PW Rizwan and PW Brahma Gupta. Despite grant of opportunity, PW4 was not cross-examined by the Ld. Counsel for accused persons, for reasons best known to him. Therefore, PW4 Saleem's deposition also remains uncontroverted and unrebutted.
24. Most importantly, public witness PW2 Rizwan has corroborated the deposition of PW1/complainant Jamil. He has categorically deposed that in his presence, the accused Laxmi Narayan hit PW1/complainant Jamil with an iron rod and accused Deepak and Raju also assaulted PW1/complainant Jamil and his brother Saleem. He has also stated that PW1/complainant Jamil and his brother Saleem were rescued by him and one Brahma Gupta (PW3). Similar to the deposition of PW2, PW3 State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 16 of 22 Brahma Gupta has also confirmed that the accused Laxmi Narayan hit PW1/complainant Jamil with an iron rod and accused Deepak and Raju also assaulted PW1/complainant Jamil and his brother Saleem. The Ld. Counsel for accused persons has not been able to elicit anything material from both the witnesses. Merely suggestions have been given by the Ld. Counsel for accused persons which do not even introduce a coherent defence.
25. The Ld. Counsel for accused persons has argued that there are contradictions in the statement of the complainant/PW1 Jamil. It is pointed out that that his signatures were taken on blank paper by SI Durgadass and therefore, no confidence can be reposed on the investigation conducted by the IO. However, I am in disagreement with the averment of the Ld. Counsel for accused persons as this alleged contradiction is minor in nature. No other contradictions or deficiencies have been pointed out by the Ld. Counsel for accused persons. It is pertinent to note that minor inconsistencies should not tantamount to substantial prejudice of the complainant [Ref: Bharwada Bhoginibhai Hirjibhai vs. State of Gujarat (AIR 1983 SC 753)] wherein the Hon'ble Supreme Court of India has held that "Too much importance cannot be attached to minor discrepancies and a witness cannot be expected to possess a photographic memory to recall the details of an incident." Therefore, this sole inconsistency does not attune to the benefit of the accused persons.
26. Three of the accused persons namely, Laxmi Narayan, State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 17 of 22 Raju and Deepak, in their statement under Section 313 of the Code, have stated that they have been falsely implicated in this case. They have averred that the victims as well as the accused persons worked in the same market. The relationship between the parties soured as the victims harassed the accused persons. On the date of the incident, there was a tussle between the parties, however, no injury was caused by the said accused persons by using iron rod or sticks. It is also stated that the complainant suffered injuries as he fell in his shop. Whilst the said defence was made while their statement was recorded under Section 313 of the Code, they did not lead any defence. They neither stepped into the witness box to aver their version on oath nor led any defence evidence by bringing in witnesses who could support their version. This has, undoubtedly, hampered the case of the accused persons, especially in light of the fact that the prosecution witnesses have deposed consistently and coherently. No loopholes have been pointed out in the deposition of the public witnesses. It has been held by the Hon'ble Supreme Court in Premchand vs. State of Maharashtra [2023 LiveLaw (SC) 168] that statements of the accused in course of examination under Section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case. The explanation given under Section 313 of the Code cannot attune to the benefit of the accused persons unless it is backed by cogent defence evidence or supported by inadequate prosecution evidence. In the instant case, the accused persons have neither led defence evidence nor established any gaps in the State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 18 of 22 prosecution version.
27. With respect to the charge under Section 506 Part II of IPC, it is pertinent to note that Section 506 Part II of IPC prescribes punishment where the accused criminally intimidates the complainant with threat to cause death or grievous hurt. Criminal intimidation has been defined in Section 503 of IPC as follows:
"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation. - A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
28. It is the case of the prosecution that accused Laxmi Narayan threatened PW1 while assaulting him. In his examination in chief, PW1/complainant Jamil stated that the accused persons while beating the victims stated "inkko maar do". He has also deposed that the accused persons threatened the victims by stating "aaj jinda bach gaye, aage tumhe nahin chhodenge". Whilst PW2 Rizwan and PW3 Brahma Gupta did not depose w.r.t. intimidatory statements made by the accused persons, the victims i.e. PW1 and PW4 have made clear averments. PW4 Saleem deposed that accused Laxmi Narayan stated that "aaj tum dono bhahio ko maar denge". He also deposed that on calling police by PW2 Rizwan, the accused persons stated while fleeing that "dono bach gaye ho, jab tak tum State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 19 of 22 dono bhahiyo ko jaan se nahi maar denge tab tak hum log chain se nahi bethenge". As mentioned above, these averments which have been consistent throughout investigation and trial remain unrebutted as accused persons did not cross-examine the victims.
29. In Surinder Suri vs. State of Haryana [Decision dated 09.05.1996 of the Hon'ble Punjab and Haryana High Court in Criminal Misc. No. 20737-M of 1995], the Hon'ble Punjab and Haryana HC observed that the gist of the offence under Section 503 IPC, is the effect which the threat is intended to have upon the mind of the person threatened. The threat must be one that can be put into execution by the person threatening. With respect to Section 506 of IPC, the Hon'ble Supreme Court in Manik Taneja and another vs. State of Karnataka [2015 7 SCC 423], observed:
"It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant."
30. It is crystal clear from the statements of the victims during trial that while assaulting them, the accused persons threatened the victims and caused them alarm that they would cause death / grievous injuries to the victims. Therefore, the essential ingredients of Section 503 punishable under Section 506 Part II/34 is made out against accused Laxmi Narayan, Raju and State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 20 of 22 Deepak.
31. To attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a prearranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. In the instant case, it has been established by leading cogent evidence that accused Raju, Laxmi Narayan and Deepak assaulted the victims with sticks/rod with a common intention of causing injuries to the victims. In this background, it can be concluded without any iota of doubt that the prosecution has established that the accused Laxmi Narayan, Raju and Deepak assaulted the victims on 12.05.2016 with a common intention to voluntarily cause simple as well as grievous injuries punishable under Section 323/325/34 of IPC. In view of the above, accused Laxmi Narayan, Raju and Deepak are convicted for the offences punishable under Sections 323/325/506 Part II/34 IPC.
32. At this stage, it is pertinent to note that, whilst PW1/complainant Jamil and his brother PW4 Saleem have deposed that accused Prabhunath was also present at the time of the incident and he assaulted them, the public witnesses i.e. PW2 State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 21 of 22 Rizwan and PW3 Brahma Gupta have not even murmured a single averment against accused Prabhunath. Even in their statement under Section 161 of the Code recorded on 03.11.2016, the public witnesses did not make any statement regarding commission of offence by accused Prabhunath. In fact, with respect to accused Prabhunath, the IO then recorded a supplementary statement of the complainant Jamil. In his statement under Section 313 of the Code, accused Prabhunath has in fact denied that he was present at the time of the incident. The Ld. APP for State has not even cross-examined PW2 Rizwan and PW3 Brahma Gupta on whether they saw accused Prabhunath at the time of the incident assaulting the victims. In the absence of clear avement re: accused Prabhunath, it cannot be said that the prosecution has proved beyond reasonable doubt that he along with other accused persons assaulted the victims. There is an element of suspicion on the aspect whether accused Prabhunath was even present at the time of the incident. Therefore, accused Prabhunath is acquitted of all the charges levelled against him.
Dictated and announced in open Court on 13.02.2024.
Digitally signed by T.T. PRIYADARSHINI PRIYADARSHINI Date: 2024.02.15 16:42:22 +0530 (T. Priyadarshini) Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 13.02.2024 State vs. Laxmi Narayan and Others FIR No. 438/2016, PS: Saket Page 22 of 22