Delhi District Court
State vs . Avtar Singh 1 Fir No. 539/02 on 13 May, 2011
State Vs. Avtar Singh 1 FIR no. 539/02
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05, SOUTH
EAST DISTRICT, NEW DELHI
STATE VS. Avtar Singh
FIR NO: 539/02
P. S. Ambedkar Nagar
U/s 384/34 IPC
JUDGMENT
Sl. No. of the case and : 1110/2 (03.02.2011)
Date of its institution : 31.07.2004
Name of the complainant : Sh. Shiva Tyagi,
S/o Sh. Rajpal Tyagi
Date of Commission of offence : 19.12.2003
Name of the accused : (i) Avtar Singh @ Babbi
(ii) Tak Chand @ Titu
(iii) Pramod Kumar
Offence complained of : Section 384/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 28.04.2011
Final Order : CONVICTED
Date of judgment : 13.5.2011
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused persons namely (i) Avtar Singh @ Babbi (ii) Tak Chand @ Titu (iii) Pramod Kumar on the police report filed by P.S. Ambedkar Nagar u/s State Vs. Avtar Singh 2 FIR no. 539/02 384/34 IPC.
2. According to prosecution story the present complaint is filed by complainant Shiva Tyagi alleging himself to be a conductor of bus bearing no. DL 1PA 2015. On 17.12.2002 the accused persons boarded this bus and beaten the complainant as well the other conductor Manish. Subsequently, on 19.12.2003 again boarded the bus at around 6.45 pm, intimidated the complainant that if the complainant want to ply this bus on the route he has to pay Rs. 300/ as "Haftaa" otherwise he will be shot. They took Rs.300/ from the complainant under intimidation and when they were trying to flee with the said money, the complainant raised an alarm and with the help of the owner of the bus Dhaneshwar and some other persons apprehended the accused persons. Public persons also gave beating to the accused persons. Accused persons were handed over to the police. The money i.e Rs. 300/ were recovered from them.
3. After completing the formalities, the investigation was carried out in pursuance of which the chargesheet u/s 384/34 IPC was filed. The charge was framed against the accused persons u/ s 384/34 IPC to which they pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined four witnesses.
5. PW1 is ASI Ganga Prakash who proved the FIR as Ex.PW1/A upon a rukka State Vs. Avtar Singh 3 FIR no. 539/02 Ex.PW1/B.
6. PW 2 is Dhaneshwar Sharma whose deposition is to the same effect as that of PW 3 Shiva Tyagi.
7. PW 3 is Shiva Tyagi, complainant in the present case who deposed that he was residing at Shop no.1, Hanuman Mandir, Mehrauli, New Delhi and presently residing at Village, PO Morna, Rukampur, Distt Meerut, U.P. In the year 2000 he was working as a conductor on bus bearing no. DL 1PA 2015 plying on route no. 534 from Mehrauli to Anand Vihar. ON 17.12.2002 when his said bus been driven by driver Kale reached Chirag Delhi Bus stand, three accused persons present in the Court that day boarded their bus and threatened him and his driver and also gave them beatings by sticks and also gave them fist and kick blows, they were demanding money. Again on 19.12.2002 the said persons got into the bus and threatened them they they would not let their bus ply on the said route if they would not pay them Rs.300/ per week. They threatened to shoot them, if they failed to do so. Having been frightened and scared, he delivered him Rs.300/ comprising Rs.100/ denomination each. He delivered the said notes in the hand of accused Avtar @ Babbi. They raised alarm and the accused persons got down from the bus. Owner of the bus namely Dhaneshwar was also sitting in the front seat of the bus alongwith public persons, apprehended the said accused persons near State Vs. Avtar Singh 4 FIR no. 539/02 the Chirag Delhi bus stand. Public persons also beaten the said accused persons. The said amount of Rs.300/ was recovered from the possession of accused and handed over to the owner of bus Sh. Dhaneshwar. After apprehending the accused persons, accused persons were taken to nearby police post Chirag Delhi and from there they were taken to PS Ambedkar Nagar whereon statement Ex.PW3/A was recorded on his narration which bears his signautre at point A. The said note was taken into possession vide memo Ex.PW2/A, accused persons were arrested vide memo Ex.PW2/B1 to Ex.PW2/B3 and personal search memos Ex.PW2/C1 to Ex.PW2/C3 were also prepared. He had also pointed out the place of occurrence to the police. (Accused persons have been correctly identified by the witness).
8. PW 4 is Inspector Narsi Lal who deposed that on 19.12.2002 he was posted at PS Ambedkar Nagar. On the fateful day at about 7.15 pm complainant along with some public persons and owner of the bus, alongwith the accused present in the Court came at PS. Rs.300/ were also handed over to him. He recorded the statement of complainant Shiva Tyagi, same is Ex.PW3/A on the basis of which he prepared rukka Ex.PW4/A and he got the case registered. The notes were put into an envelope which was sealed with the seal of PR and the same were seized vide memo Ex.PW2/A. Accused persons were arrested and their personal search was conducted vide memo State Vs. Avtar Singh 5 FIR no. 539/02 Ex.PW2/B1 to Ex.PW2/C3. During investigation he prepared site plan Ex.PW4/B at the instance of complainant. He recored the statement of witnesses of this case and after completion of investigation he prepared challan and filed in the Court through SHO. (Accused persons have been correctly identified by the witness in the Court).
9. The accused persons were examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to them where they denied the allegations raised against them. They are innocent and have been falsely implicated in this case.
10. I have heard the Ld. APP for State and counsel for accused persons and perused the records.
11. It is argued by the Ld. APP for State that the case has been proved against the accused person and they should be convicted.
12. On the other hand the Ld. Defence counsel has argued that this is a false case foisted upon the accused persona due to enmity because the buses of the accused persons also ply on the same route i.e 534 and due to competition with each other this false case is made against the accused persons. It is also argued that the other conductor Munish is also a witness but he was not examined. The driver of the bus was also not examined and when it is the prosecution story that the public apprehended the accused persons why none of the public persons have been State Vs. Avtar Singh 6 FIR no. 539/02 examined as independent witnesses. If the public is supporting the complainant in apprehending the accused persons why the public person did not come in the Court to depose in the court. The ICard of the conductor has not been produced in evidence and it is also argued that not only Rs. 300/ but also Rs. 5000/ were also recovered from the accused persons and therefore the recovery of Rs. 300/ is not such an incriminating evidence that conviction is based on such recovery.
13. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged with.
14. The prosecution case is that the complainant Shiva Tyagi is a conductor of bus DL 1PA 2015 and the accused persons had demanded illegal money from him fro plying the bus on that particular route. He was intimidated and Rs. 300/ was snatched from him. Later on when these accused persons were trying to escape they were apprehended. To prove this fact, the prosecution has examined two witnesses i.e complainant Shiva Tyagi and the owner of the bus Dhaneshwar. Both of them have categorically deposed and corroborated the prosecution story. PW 2 Dhaneshwar has deposed about the date of accident, the manner it is committed. He has identified the accused persons in the Court. Similarly PW 3 the complainant has also categorically State Vs. Avtar Singh 7 FIR no. 539/02 deposed about the date of incident as 17.12.2002 and that how the accused persons under intimidation took Rs.300/ from him in the name of "Haftaa". He deposed that how these accused persons were apprehended on his alarm with the help of public. He has also deposed that previously on 17.12.2002 also these accused persons beat him along with the driver of the bus Kale. He proved that the accused persons were taken to PS after their apprehension from the spot. He also proved the documents i.e seizure memo, all the currency notes Ex.PW2/A, the arrest memo of the accused Ex.PW2/B1 etc. Therefore, there is categorical deposition on behalf of this witness that how the accused persons committed offence as alleged against them and his testimony is further corroborated by the testimony of the owner of the bus who is deposed to be sitting in the bus on that day on the front seat.
15. As far as the evidentiary value of the injured witness/witness who is the victim of the offence is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
State Vs. Avtar Singh 8 FIR no. 539/02 (3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. (6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
16. Now in the light of the above judgment, it is clear that the testimony of the victim of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidence of the witnesses and I find that the same are quite consistent, truthful and creditworthy. The witnesses have withstood State Vs. Avtar Singh 9 FIR no. 539/02 the cross examination and there is nothing in it which can impeach their credit or discard their testimony or to doubt their veracity. The witnesses have deposed about the date of incident correctly, the manner in which the incident occurred and their presence at the spot is proved. The complainant has categorically deposed that that Rs.300/ were taken from him under intimidation. He categorically deposed the place and the manner in which the offence of extortion has been committed and therefore I am of the view that his testimony corroborated by the testimony of PW 2 Dhaneshwar has strong probative force to convict the accused. The investigating officer has duly proved his investigation in the case and the different documents prepared during the investigation. The money snatched by the accused persons and later on recovered is also duly proved in the Court as Ex.P1, P2 and P3 i.e Rs.300/ each in the denomination of currency note of Rs.100/. It is neither explained nor proved on behalf of the accused persons that how they were apprehended from the spot or what were they doing at the place of incident.
In the present case, considering the ocular as well as documentary evidence, charge against the accused persons have been proved beyond reasonable doubt.
Now I consider the defences raised by the counsel for accused one by one.
17. As far as the first defence raised by counsel for accused persons that there is no independent public witness has been examined by the prosecution despite that the accused persons were apprehended with the aid of general public is concerned, I am of the view that this is not such a impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Court in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are State Vs. Avtar Singh 10 FIR no. 539/02 related to that case also shy away from coming to the Court. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and the search for the nugget of truth with due regard to probability if any, suggested by the accused."
18. The second defence of the defence counsel was that the other material witnesses like one Manish who was also the conductor on that bus and the driver of the bus who are well aware of the present case are not examined as witness is concerned, I am of the view that it is not the quantity but the quality of the testimony which is more relevant in deciding a controversy. There are cases in which the convictions are based on the sole testimonies of the witnesses. Even the Hon'ble Supreme Court of India has laid down that quality and not quantity matters. Numerical State Vs. Avtar Singh 11 FIR no. 539/02 strength of the evidence has no value in the face of a qualitative evidence. A Court is not to count, but to weigh the evidence. In the case of Maksuddan Vs. State of U.P 1983 SC 126 (1983 CRI LJ 218) it has been observed that;
"It is not the number of witnesses examined nor the quantity of witnesses adduced by the prosecution that counts. It is the quality that counts".
19. Therefore, the arguments that only two witnesses of facts are examined to prove the case is meritless. Non examination of other witnesses of fact is not fatal to the prosecution as the witnesses who are examined have successfully proved prosecution's case.
20. The next argument of the defence counsel is that the witnesses are interested witnesses. The buses of the accused also ply on the same route and in order to weed out the competition, this false case was imposed upon the accused persons. According to defence counsel, these are interested witnesses and cannot be relied without proper corroboration.
21. It is well settled law that the interested evidence is not necessarily a false evidence. There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction opposed to that of the accused by itself does not render their evidence false. Partisanship by itself is not ground for discharging sworn testimony. There is no law which says that in the absence of any independent witnesses, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for convicting an accused. What the law required is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. The matter has been investigated by the State Vs. Avtar Singh 12 FIR no. 539/02 police upon which a charge sheet was filed against the accused persons. The money was proved in the Court. The accused persons were apprehended from the spot. Witnesses deposed against them categorically having nothing in their cross examination to impeach their testimony.
22. In the present case, both the eye witnesses have withstood the cross examination. Their deposition is categorical indicating the offence committed by the accused. The argument that the accused persons also runs bus on the same route is admitted by PW 2. Except this admission there is no proof of this fact. But the allegations have nothing to do with the offence because even if there is some business competition, it is not expected of anyone to compete in a way as alleged by the complainant. It is not that the incidents like in the present case does not happen or are not common which needs a full proof evidence to prove the same.
23. Two more submissions were also raised during arguments by defence counsel that no ICard has been proved on record and beside Rs.300/ Rs.5,000/ were also seized from the accused persons. As far as the non production of ICard is concerned, I am of the view that it is not the case of the prosecution that the complainant was having ICard but not produced in the Court. Its a futile argument because I don't think that every conductor of a private bus might be supplied an ICard by the owner of the bus and regarding additional Rs.5,000/ were also seized, it could be possible that the accused persons might have some money before/at the time of the incident with them and the prosecution has nothing to do with that 5,000/ rupees.
24. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 384 IPC which reads as State Vs. Avtar Singh 13 FIR no. 539/02 under;
As far as section 384 IPC is concerned, section 384 IPC provides for punishment for extortion and the definition of extortion is defined in section 383 IPC which reads as under; Extortion Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
25. In the present case there is sufficient evidence to show that the complainant was put in the fear of his injury. There is categorical evidence that the complainant was not only put in the fear of injury but actually Rs.300/ were were taken from him. The ingredient of offence of extortion is made out considering the evidence of the injured in this case and therefore, it can be said that the accused persons have committed an offence u/s 384 IPC.
26. Therefore, on the basis of overall discussions it is clear that PW 2 and PW 3 are the victim of offence and have to be believed unless anything contrary is proved. PW 2 and PW 3 have corroborated each other in material particulars and withstood the cross examination. The accused persons were apprehended on the spot and immediately taken to police station. Investigation in this case is also duly proved and there is no impediment in convicting the accused persons u/s 384/34 IPC. Accordingly the accused persons are convicted for the offence of extortion under section 384/34 IPC.
Announced in the open court (Samar Vishal)
on 13 May 2011.
th
Metropolitan Magistrate05,
South East, New Delhi