Delhi District Court
Be Expected. Reliance In This Regard Is ... vs . Mahabeer on 5 May, 2022
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Lakmi
FIR NO. : 177/2002
P.S. : Sultanpuri
R-NO. : 533508/2016
Date of commission of offence : 23-02-2002
Name of Informant/complainant : Rameshwar
Name of accused : Lakhmi, s/o Jai Singh
Offence/s complained of : 427/452/323/506/34 IPC
Cognizance under section/s : 427/452/323/506/34 IPC
Charges framed under section/s : 427/452/323/506/34 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 05-05-2022
Date of pronouncement : 05-05-2022
Final Order : Conviction
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. Brahmanand Gupta
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
R-NO. : 533508/2016 State v. Lakmi Page 1 of 21
JUDGEMENT
1. The accused Lakhmi is facing trial for offences u/s. 427/452/323/506/34 IPC.
2. Stated succinctly, the facts germane for the prosecution of the case is that the complainant was at his shop on the date of incident i.e. 23-02-2002. At around 05:00pm, three persons in a drunken condition came and dashed against the shop of the complainant to which he asked them to drive carefully. Upon such reprimand, thr persons stated that they will teach the complainant a lesson and went away. Later on the same date, about four persons came to the shop of the complainant armed with knife and danda and stated beating him and caused injuries on his person. They also destroyed the shop. Upon alarm being raised, the brothers of the complainant namely Ganeshi and Moolchand also came, however they were also assaulted by the accused persons. While other accused persons ran away during the scuffle, however one accused was apprehended at the spot.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 177/2002 on 23-02-2002 and, after investigation, submitted the charge sheet on 29-07-2003 against the aforementioned accused person u/s. 427/452/323/506/34 IPC. Cognisance was taken on 29-07-2003 and provisions of section 207 Cr.P.C. were complied on 03-01-2006. R-NO. : 533508/2016 State v. Lakmi Page 2 of 21
4. Charges s. 427/452/323/506/34 IPC were framed and read over to the accused, in Hindi, on 19-04-2006 to which they denied the incident and claimed to be tried.
5. During the course of trial, accused Neeraj expired and proceedings qua him were abated vide order dated 12-11-2013.
6. The prosecution, in order to prove the case beyond all reasonable doubt, examined six witnesses in support of its case during the course of trial.
7. PW1 PW-1 Rameshwar that on 23.02.2002 when he was sitting at his shop, at about 05:00 pm, three persons who were in drunken condition came on two wheeler scooter and struck the scooter in his shop. He further deposed that the customers and his sister in law (Bhabhi) had narrow escape. He further deposed that he tried to convince them to drive carefully and they started abusing him and said that they will teach him a lesson. He further deposed that after about ½ hour later, about 4 persons came at his shop carrying danda and knife who entered into his shop and caused damage to the items in his shop and the shop also. He further deposed that his brother Moolchand and Ganeshi tried to save him. He further deposed that those persons also attacked on his brothers and ran away from the spot, but the accused was apprehended at the spot and disclosed his name. He further deposed that police came and recorded his statement Ex.PW-1/A. He R-NO. : 533508/2016 State v. Lakmi Page 3 of 21 further deposed that he received injuries on his face and bruises were caused on his face. He further deposed that he received many injuries on his face from danda and knife. He further deposed that his brother Ganeshi Lal also received injuries. He further deposed that the accused was arrested by the police vide memo Ex.PW-1/B. He further deposed that his personal search was conducted vide memo Ex.PW-1/C. He further deposed that he was medically treated at SGM Hospital. The witness correctly identified the accused during his deposition in the Court.
8. PW 2 PW-2 Mool Chand that on an evening time, when he came back from his duty, at around 05:30 pm, he heard the noise of his brother Rameshwar and he went to his shop with his brother Ganeshi and saw some boys and when he tried to save his brother Rameshwar, they tried started beating him also. He further deposed that all the persons were carrying lathi and knife and were threatening and abusing. He further deposed that one of the accused was apprehended and he received injuries on his leg. He further deposed that the shop was totally damaged. The witness correctly identified the accused during his deposition in the Court.
9. PW 3 PW-3 Ganeshi that that his brother was having a general store and two R-NO. : 533508/2016 State v. Lakmi Page 4 of 21 persons on the scooter came to the shop of his brother. He further deposed that the scooter which was driven by one person, came and struck the persons at the shop of his brother. He further deposed that thereafter the accused alongwith other 9-10 persons came and started beating his brother Rameshwar. He further deposed that on hearing noise, he came out of the house and he tried to save his brother, but he was also beaten by those persons and he also sustained injuries on his hand. The witness correctly identified the accused during his deposition in the Court.
10. PW 4 PW-4 Neeraj, who was a photographer that on 23.02.2002, on the instruction of IO, he went to D-3/37, Sultan Puri, Delhi where he took the photographs of the broken shop. He further deposed that after developing the photographs, he handed over the same to the IO.
11. PW-5 HC Rajbir that on 23.02.2002, while posted at PS Sultan Puri he was on patrolling duty from 05:00 pm to 10:00 pm. He further deposed that at about 06:00 pm, he received information through wireless set that quarrel had taken place at D-3/37 and on receipt of information, after 10 minutes he reached at the spot where SI Rajender and HC Devender were also present. He further deposed that SI Rajender handed over to him rukka and sent him to PS Sultan Puri for getting the FIR registered. He further deposed that after getting the case R-NO. : 533508/2016 State v. Lakmi Page 5 of 21 registered, he came back at the spot and handed over the original rukka and copy of FIR to SI Rajender. He further deposed that IO recorded his statement.
12. PW-6 Retired S.I. Rajender that on 23.02.2002, while posted as an SI at PS Sultan Pur, he received DD No.59B Ex.Pw-6/A regarding quarrel at D-3 Block, Sultan Puri, Delhi. He further deposed that he alongwith HC Devender reached at the spot where they met with complainant Rameshwar who handed over the accused's custody and one wooden stick to him. He further deposed that after that he recorded the statement of complainant Ex.PW-1/A, prepared rukka Ex.PW-6/B and handed over the rukka to Ct. Rajbir, who was also present there, for registration of FIR at PS. He further deposed that thereafter, he prepared site plan Ex.PW-6/B and then Ct. Rajbir reached at the spot alongwith copy of FIR and original rukka and handed over the same to him. He further deposed that thereafter, he prepared seizure memo of wooden stick Ex.PW-6/D and recorded his disclosure statement Ex.PW-6/E. He further deposed that after that he arrested the accused and personally searched him vide memo Ex.PW-1/B and Ex.PW-1/ C. He further deposed that he recorded the statement u/s 161 Cr.PC. The witness correctly identified one wooden stick as Ex.P1 which was bearing particulars of the present case produced by MHC(M). He further deposed that the photographs of the spot were taken by photographer namely Neeraj.
R-NO. : 533508/2016 State v. Lakmi Page 6 of 21
13. PW 7 Naveen, Record Clerk deputed by Dr. V. K. Gupta, SGM Hospital who produce MLCs prepared by Dr. Inder Singh and brought the original record of MLC No. 10694 of patient Rameshwar and MLC No.10703 of injured Moolchand that the above said MLCs attached in judicial file are Ex.PW-7/A and Ex.PW-7/B.
14. PW 8 ASI Devender deposed that on 23.02.2002, while posted at PS Sultan Puri as HC, he was on emergency duty. He further deposed that on receipt of DD no. 59B to IO SI Rajender, he along with IO went to the spot ie D-3/37, S. Puri, Delhi where they met with complainant Rameshwar Lal, Ganesh Lal and Moolchand. He further deposed that IO recorded the statement of complainant and he took the complainant and injured persons to SGM Hospital for their medical examination. He further deposed that after registration of the case, IO arrested accused Lakhmi and Neeraj (since expired) vide memo Ex. PW1/B and PW1/F and they were personally searched vide memos Ex. PW1/C and PW1/G. Thereafter, IO seized the case property ie danda vide seizure memo Ex. PW6/D and recorded his disclosure statement vide Ex. PW6/E and of accused Neeraj vide Ex. PW6/H. He further deposed that after medical examination, they went to the PS along with case property. Case property deposited into maalkhana and you were put behind bar. IO recorded the statement of witnesses. The witness correctly identified you during deposition in the Court. During the testimony, R-NO. : 533508/2016 State v. Lakmi Page 7 of 21 MHCM has produced one danda bearing the particulars of the present case which shown to the witness and the witness also correctly identified the same.
15. Evidence on behalf of the prosecution was closed vide order dated 23-10-2019. All the incriminating evidence which had come in evidence against the accused persons were put to the accused vide. SA recorded under s. 313 Cr.P.C. on 17-03-2021 wherein the accused chose not to lead DE.
16. Final arguments were heard on behalf of both sides on 05-05-2022 and the matter was fixed for judgement vide. order dated 05-05-2022.
APPRECIATION OF EVIDENCE
17. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
18. Before embarking to determine the guilt of innocence of the accused, it would be prudent to reproduce the relevant sections here for the sake of brevity: R-NO. : 533508/2016 State v. Lakmi Page 8 of 21
441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"
442. House trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
452. House-trespass after preparation for hurt, assault or wrongful restraint.-- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
427. Mischief causing damage to the amount of fifty rupees.--Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
503. Criminal intimidation.--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. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.
506. 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; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or R-NO. : 533508/2016 State v. Lakmi Page 9 of 21 to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[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.
Determination as regards section 452 I.P.C.
19. In order to successfully bring home a prosecution under section 452 IPC, it is necessary to satisfy the following ingredients, 1. The accused should have committed house trespass; 2. He should have committed it having made preparation for: (a) causing hurt to any person or (b) assaulting any person or (c) for wrongfully restraining any person or (d) for putting any such person in fear of hurt, assault or wrongful restraint.
20. This court will now examine the evidence as regards section 452 IPC led by the prosecution. In order to substantiate its case, the prosecution has examined PW-1 Rameshwar, an eye-witness in the present case. A perusal of the testimony of the said witness shows the said witness has deposed categorically that on the date of incident, the accused persons had come to his shop with a danda and a knife. This witness has gone on to depose that the accused persons entered his shop and assaulted the said witness along with his brothers and while the other accused persons ran away from the spot, one accused namely Lakhmi was apprehended at R-NO. : 533508/2016 State v. Lakmi Page 10 of 21 the spot itself while trying to escape. This version of the accused persons entering the shop of the PW-1 and subsequently assaulting the said witness along with his brother is corroborated with the testimony of PW-2 who states that when he reached the shop of his brother, examined as PW1, he saw the accused persons in the shop of PW1, armed with danda and knife, and during the scuffle, he also received injuries on his leg. Similarly, PW-3 Ganeshi, has been examined as an eye-witness on behalf of the prosecution and he has deposed in categorial terms that the accused persons had entered the shop of PW1 and assaulted him(PW1) and when this witness tried to save his brother, he was also assaulted by the accused persons. All these witnesses (PW-1 to PW-3) have correctly identified the accused in Court.
21. A conjoint reading of the testimony of the aforesaid witnesses makes it apparently clear that all theses witness have deposed about the entry of the accused persons in the shop of the complaint i.e. PW1, armed with weapons and the subsequent assault. All these witnesses have been cross-examined at length by the accused and nothing has come in the same to shake their veracity as regards the forcible entry of the accused persons and the subsequent assault. Hence the essential ingredient of commission of criminal trespass i.e entry in the property of the complainant with the intention to commit an offence i.e. beating the complainant, stands proved.
R-NO. : 533508/2016 State v. Lakmi Page 11 of 21
22. The Ld. Counsel has argued at length on the aspect of the testimony of PW-2 and PW-3 not being reliable on account of the fact that they have failed to depose about the date on which the crime allegedly occurred. However, the contention is rejected as being devoid of merit on account of the fact that the same is a minor discrepancy and the same can be explained away vide. the fact that the time period between the occurrence of the incident and the date of deposition is almost 5 years. A reasonable and prudent persons cannot be expected to remember in detail each and every detail related to the incident for the purpose of despoing in Court. Some natural blurring of memory of a witness due to passage of time is to be expected. Reliance in this regard is placed on Yogesh Singh vs. Mahabeer Singh & Ors. reported in (2017) 11 SCC 195 has held as under:-
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi Vs. State of M.P., (1999) 8 SCC 649; Leela Ram Vs. State of Haryana, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh., (2004) 9 SCC 186; Vijay Vs. State of M.P., (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of W.B., (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab, (2013) 12 SCC 796)".R-NO. : 533508/2016 State v. Lakmi Page 12 of 21
The same was reiterated in the case in the case of Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in (2000) 8 SCC 457 has held as under:-
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. In this regard this Court in State of H.P. v. Lekh Raj, (2000) 1 SCC 247 (in which one of us was a party), dealing with discrepancies, contradictions and omissions held: (SCC pp.258-59, paras 7-8) "Discrepancy has to be distinguished from contradiction.
Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecutions case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [1974 (3) SCC 767] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish vs. State of M.P. [1981 SCC (Crl.) 676] this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan vs. Kalki [1981 (2) SCC 752] held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
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23. Even otherwise, the said contention by the Ld. Counsel of the accused deserves to be rejected since the date of incident has been stated by PW-1 in his examination-in-chief. The said fact i.e. date of occurrence, has been duly stated by PW-1 and nothing has come in his cross-examination to shake his veracity. No question/suggestion has been put in the cross-examination of the said witness as regards the aforesaid fact.
24. The last contention raised by the defence is that no independent witness has been examined by the prosecution to prove its case. However, it is settled law that the non-examination of independent witnesses is not fatal for the case of the prosecution. The Hon'ble Apex Court in Guru Dutt Pathak vs. State of Uttar Pradesh [CrA . 502 OF 2015 held as follows:
"10.2 In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.10.2 In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. 10.3 In the case of Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627, after referring to the decision of this Court in the case of State of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observed and held by this Court that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case.", "The prosecution witnesses have fully supported the case of the prosecution, more particularly PW2 & PW4 and they are found to be trustworthy and reliable, non- examination of the independent witnesses is not fatal to the case of the prosecution. Nothing is on record that those two persons, namely, Shiv Shankar and Bhagwati R-NO. : 533508/2016 State v. Lakmi Page 14 of 21 Prasad as mentioned in the FIR reached the spot were mentioned as witnesses in the chargesheet. In any case, PW2 & PW4 have fully supported the case of the prosecution and therefore non-examination of the aforesaid two persons shall not be fatal to the case of the prosecution."
This contention is hereby rejected as being devoid of merit.
25. Therefore, in light of the aforesaid discussion, in the considered opinion of this Court, the prosecution has been able to prove the charge u/s 452 I.P.C. against the accused beyond all reasonable doubt. The accused persons namely Lakhmi is hereby held guilty for the offence u/s 452 IPC.
Determination qua section 427 IPC
26. The second charge which the accused persons have been charged with is committing mischief and causing damage to the property of the complainant.
27. In order to bring home the guilt under section 427 IPC, the following essential ingredients are required to be proved: (a)The accused must have the intention and knowledge to commit an act that may cause loss and damage to the person or the property, (b)There must be loss and damage caused to the person, (c) The value of loss and damage must be rupees fifty or upwards.
28. A perusal of the evidence adduced by the prosecution shows that prosecution has R-NO. : 533508/2016 State v. Lakmi Page 15 of 21 sought to rely on the testimony of PW-1, PW-2 and PW-3 to bring home the guilt of the accused. However, a perusal of the examination-in-chief of PW-1 and PW-3 makes it apparently clear that none of the aforesaid witnesses have deposed anything as regards damage or loss caused by accused Lakhmi to the shop. Admittedly, PW-1 has stated in his examination-in-chief that at around 5 p.m. on the date of incident, three persons came on a two-wheeler scooter and dashed against his shop, however the said contention is not sufficient in itself to discharge the burden of proof upon the prosecution on account of two reasons. Firstly, a conjoint reading of the testimony of PW-1 makes it clear that aforementioned statement has not been made with regard to accused Lakhmi. This is on account of the fact that if that were to be the case, the said witness ought to have stated in his examination-in-chief that the person who dashed his shop and the accused i.e Lakhmi, who came later, were the same person. Moreover, it is essential to prove some loss or damage in order to successfully convict a person under this section. Nothing has come in the testimony of either witness to show that any loss or damage had been caused to the property of the complainant.
29. Moreover, the photographs of the site have not been brought on record/exhibited by the prosecution. In this regard, it would be prudent to refer to the testimonies of PW4 and PW6. A perusal of the testimony of both the witness makes is R-NO. : 533508/2016 State v. Lakmi Page 16 of 21 apparently clear that while PW4 had deposed that the photographs were handed over to the IO by him, the IO (examined as PW6) has stated that the photographs were not handed over to him. Either way, the situation which emerges from the aforesaid discussion is that the photographs of the spot have not been exhibited by the prosecution to assuage its claim of loss damage being caused to the property of the complainant. Hence the factum of damage being cause as a result of the alleged actions of the accused, which could have been proved by production of secondary evidence i.e. photographs, have not been adduced by the prosecution.
30. Furthermore, it has come in the cross-examination of PW 6 SI Rajender, that no efforts had been taken by the investigating agency to seize any of the alleged broken articles from the spot where the incident had taken place. The same is fatal for the case of the prosecution. In light of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to bring home the guilt of the accused as regards section 427 IPC. The accused is hereby acquitted of the charges u/s 427 IPC.
Determination qua section 323 IPC
31. To bring home the guilt under an offence alleged to have been committed under Section 323 IPC the following essential ingredients have to be proved - (a) the R-NO. : 533508/2016 State v. Lakmi Page 17 of 20 victim suffered from bodily pain or disease or infirmity; (b) that the accused caused such bodily pain to the victim and (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.
32. A perusal of the testimony of the eye-witnesses i.e. PW-1 Rameshwar, PW-2 Mool Chand, PW-3 Ganeshi shows that all the three eye-witnesses has deposed uniformly about the incident. PW-1 has specifically stated that the incident occurred on 23-02-2002 at about 05:30 P.M. when the accused persons attacked the informant armed with a danda and knife. This witness has further deposed in unequivocal terms that when his brothers came to save him from the clutches of the accused, they were also assaulted by the accused persons. The said version is duly corroborated by the testimonies of PW-2 and PW-3 who have reiterated the version stated by PW-1. All these witnesses have stood the test of cross- examination and nothing has emerged from their cross-examination to shake their veracity.
33. It is argued by the defence that the MLC sought to be relied upon by the prosecution have not been duly admitted in evidence and hence no reliance can be placed upon them. Consequently, the prosecution has failed to discharge its burden of proof as regards offence u/s 323 IPC against the accused. R-NO. : 533508/2016 State v. Lakmi Page 18 of 21
34. The contention of the defence that in absence of any MLC offence under section 323 IPC cannot be proved is not a universal rule which would apply in every case. It is settled law that in cases pertaining to an offence u/s 323 IPC, the non exhibiting of MLC is not fatal for the case of the prosecution. Reliance in this regard is placed on "Lakshman Singh vs State Of Bihar" (Now Jharkhand) on 23 July, 2021, wherein Apex court observed as under:-
Now so far as the submission on behalf of the appellants - accused that all the appellants were alleged to have armed with lathis and so far as PW8 is concerned, no injury report is forthcoming and/or brought on record and therefore they cannot be convicted for the offence under Section 323 IPC is concerned, at the outset, it is required to be noted that PW8 in his examination-in-chief/deposition has specifically stated that after he sustained injuries, treatment was provided at Government Hospital, Paatan. He has further stated in the cross- examination on behalf of all the accused persons except accused Dinanath Singh that he sustained 2-3 blows of truncheons. He has also stated that he does not exactly remember that how many blows he suffered. According to him, he first went to Police Station, Paatan along with the SHO of Police Station, Paatan, where his statement was recorded and thereafter the SHO sent him to Paatan Hospital for treatment. Thus, he was attacked by the accused persons by lathis/sticks and he sustained injuries and was treated at Government Hospital, Paatan has been established and proved. It may be that there might not be any serious injuries and/or visible injuries, the hospital might not have issued the injury report. However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt. "Hurt" is defined under Section 319 IPC. As per Section 319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to cause "hurt". Therefore, even causing bodily pain can be said to be causing "hurt". Therefore, in the facts and circumstances of the case, no error has been committed by the courts below for convicting the accused under Section 323 IPC.
35. In light of the aforesaid observations, this Court is of the considered opinion that R-NO. : 533508/2016 State v. Lakmi Page 19 of 21 the prosecution has been able to prove the guilt of the accused against the accused Lakhmi u.s 323 IPC beyond all reasonable doubt.
DETERMINATION QUA SECTION 506 IPC
36. The last charge framed against the accused is that he criminally intimidated the complainant.
37. In order to bring home the guilt for an offence alleged to have been committed under s. 506 IPC, it is imperative that there should be intention to cause alarm or to cause person threatened to do any act which is not legally bound to do. The mere abuses and empty threats would not fall under the offence punishable u/s 506 IPC. To constitute the offence u/s 503 IPC, the words used should be a clear indication as to what the accused was going to do and the complainant must feel as a reasonable man that the accused was going to convert his words into action. Mere threat causing no alarm would not be sufficient to constitute offence u/s 506 IPC. (as observed by Hon'ble Delhi High Court in case cited as [2000 Crl. LJ 4772)].
38. In the present case, a perusal of the testimony of the eye-witnesses adduced by R-NO. : 533508/2016 State v. Lakmi Page 20 of 21 the prosecution to shows that only PW-2 has deposed that the accused had threatened to kill the complainant. In fact, nothing has come in the testimony of the other two witnesses i.e. PW-1 and PW- 3 as regards the threat extended by the accused to the complainant. Hence the testimony of PW-2 remains uncorroborated in material particulars.
39. Furthermore, the essential ingredient of causing alarm to the person so intimidated is not proved in the proved in the present case. Nothing has come on record that any alarm had been caused to the complaint as a result of the statement of the accused. Moreover, the accused persons had fled from the spot and the accused Lakhmi had been apprehended from the spot by the complainant himself with the help of other public persons present at the spot.
Findings
40. In view of above discussion, this Court is of the considered opinion that the prosecution has been able to prove it's case against the accused Lakhmi u/s 452/323/34 IPC beyond all reasonable doubt. The accused Lakhmi is hereby convicted of the charges under section 427/506/34 IPC. However, the prosecution has failed to discharge its burden against the accused Lakhmi qua offences u/s 427/506 IPC. Accused Lakhmi is hereby acquitted of the charges under section 427/506/34 IPC.
41. Copy of judgement be given free of cost to the convict.
Announced in open court Pritu Raj
On 05-05-2022 Metropolitan Magistrate-01
Rohini Courts, Delhi.
R-NO. : 533508/2016 State v. Lakmi Page 21 of 21