Delhi District Court
State vs . Avinash Tyagi on 18 December, 2013
THE COURT OF METROPOLITAN MAGISTRATE04, PATIALA HOUSE
COURTS, NEW DELHI.
Presided by: Ms. Vijeta Singh Rawat
State Vs. Avinash Tyagi
FIR No. 64/05
U/S 452/380/427/506/511 IPC
PS Inder Puri.
JUDGMENT
1. Case ID No. of the case. :02403R0770002005
2. The date of commission :27.02.2005 of the offence.
3. Name of the complainant. :Sh. Vijay Gupta S/o Sh. Om Prakash, H. No. A56, Inder Puri, New Delhi.
4. Name, parentage & address :1Avinash Tyagi S/o Late Sh. K. C. Tyagi, R/o A82, Inder Puri, Delhi.
5. Offence complained : U/s 452/380/427/506/511 IPC
6. The plea of the accused : Not guilty
7. The final order. :Acquitted.
8. The date of such order. :18.12.2013
9. Date of institution. :11.11.2005.
10. Date on which the judgment :29.11.2013 has been reserved.
State Vs. Avinash Tyagi Page 1/11 FIR No. 64/05 BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION.
1. It is the case of the prosecution that on 27.02.2005 at 12.30 pm at A43, falling within the jurisdiction of PS Inderpuri, the accused committed house trespass have made preparation for causing hurt/assaulting/wrongfully restraining any person or for putting any person in fear of hurt/assault/wrongful restrain and thereby committed offence punishable u/s 452 of Indian Penal Code, 1860 (hereinafter referred to as "the Code"). Further that on the aforesaid date, time and place, accused committed mischief and caused loss/damage of more than Rs. 50/ and thereby committed offence punishable u/s 427 of the Code. Also that on the aforesaid date , time and place, accused committed theft of Rs. 50,000/ and thereby committed offence punishable u/s 380 of the Code. Finally, that on the aforesaid date, time and place, accused threatened complainant Vijay Gupta and hence, committed offence punishable u/s 506 of the Code. Section 511 of the Code was also invoked by the prosecution.
2. On completion of investigation, charge sheet was filed on 11.11.2005 against the accused for offences punishable u/s 452/427/380/506/511 of the Code. Ld. Predecessor of this Court, took cognizance of the aforesaid offences. Documents were State Vs. Avinash Tyagi Page 2/11 FIR No. 64/05 furnished to the accused on 10.11.2005 itself.
3. Since Ld. Predecessor of this Court, was of the prima facie opinion that offences u/s 452/380/ 506/ 427/511 of the Code were made out against accused, charge against accused was framed vide order dated 08.12.2005. The accused pleaded not guilty and claimed trial..
4. Thereafter, prosecution examined the following witnesses and in support of its case.
I. PW1Sh. Vijay Gupta who inter alia stated that on 27.02.2005 at about 12.30 pm, he was sitting at his office at A43, Inder Puri and was counting cash of Rs. 50,000/when accused (correctly identified) who was his neighbour knocked at the glass door; that he was carrying a handle of a sofa and a plastic can in his left hand; that he entered the office, abused and threatened the complainant to close his office; that he attacked on the left shoulder of the complainant with the handle of the sofa; that he broke the articles of the office, namely, computer, printer, telephone, and fax machine; that despite request, the accused continued to cause destruction; that he threatened that he would kill the complainant if did not close the office; that he poured the oil contained in the plastic can and lifted Rs. 50,000/ and that he left the office. The witness tendered his complaint Ex. PW1/A, site plan mark X, seizure memo Ex. PW1/B, seizure memo Ex. PW1/C and cheque Ex. P1 in evidence. He State Vs. Avinash Tyagi Page 3/11 FIR No. 64/05 identified the broken telephone as Ex. P2 and broken pieces of glass as Ex. P3. He failed to identify the plastic can. He was duly cross examined by Ld. APP for the State on the aspect of identify of the plastic can. He also failed to identify the small danda. He was duly cross examined by accused.
II. PW2 W/ASI Kailash who tendered FIR Ex. PW2/A and endorsement on rukka Ex. PW2/B in evidence having recorded them as Duty Officer. Despite opportunity, she was not cross examined. III. PW3 Ct. Rakesh who merely stated that on the aforesaid date (which he was mixed up about), he reached the spot at DBlock, Inderpuri and saw articles were scattered. He turned hostile and was cross examined by Ld. APP for the State. He was duly cross examined by the accused.
IV. PW3 Sh. Raj Kumar Mehta who inter alia stated that on hearing some noice, he came out and went to the ground floor where he saw that accused was standing with a small aqua pressure stick; that he was asking from somebody regarding the whereabouts of complainant; that the witness alongwith his clients left the spot and on return found the police there. He was cross examined by Ld. APP for the State. He was also cross examined by accused. V. PW4 Ct. Narbir Singh who stated that on 01.03.2005, he joined investigation alongwith SI Sudesh Pratap and police remand of accused was taken; that accused was taken to his residence at A82, Inder Puri, New Delhi where at his instance one danda was State Vs. Avinash Tyagi Page 4/11 FIR No. 64/05 recovered from beneath the sofa cushion and was seized vide Ex. PW4/A. He identified the danda as Ex. P4. He was duly cross examined.
VI. PW5 Insp. Swadesh Praksh who stated that on 2728.02.2005, he alongwith ASI Resham Pal and other staff reached M114, G.K. Part II to arrest accused; that he was arrested vide arrest memo Ex. PW5/A and personal search memo Ex. PW5/B; that his disclosure statement Ex. PW5/C was recorded and the remaining part of his statement was similar to that of PW Ct. Narbir. He was duly cross examined.
VII. PW7 ASI Resham Pal/Investigating Officer who deposed regarding various stages of investigation undertaken by him. He also tendered rukka Ex. PW7/A and site plan Ex. PW7/B in evidence apart from relying upon Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW5/A, Ex. PW5/B, Ex. PW5/C. He was duly cross examined. VIII. PW8 Insp. Ajeet Singh who stated that on 27.02.2005, he inspected the crime scene and prepared report which is Ex PW8/A in evidence. He was duly cross examined.
File received by way of transfer on 04.04.2013 vide order no. 06/DHC/Gaz./G3/VI.E.2(a)2013 dated 19.02.2013. IX. PW9 Sh. Amit Arora who merely stated that on 27.05.2005 accused came to his office with a acupuncture block. Despite opportunity, he was not cross examined.
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5. Prosecution evidence was closed vide order dated 04.04.2013.
6. Statement of the accused was recorded on 06.07.2013 and he denied incriminating evidences appearing against him. He claimed that case was politically motivated.
7. Despite opportunity, the accused did not examine any defence witness. At request of accused, defence evidence was closed on 19.11.2013.
8. Final arguments were heard on behalf of accused on 29.11.2013. No final arguments have been advanced by the State.
9. This Court has given its thoughtful consideration to the submissions made by the parties and the material on record.
10. The essential ingredients of offence punishable u/s 452 of the Code which prosecution has to prove are as under:
i. That accused committed house trespass as defined u/s 442 of the Code.
ii. Having made preparation to cause hurt/assault/wrongfully restrain any person or cause any person to be in fear of any such act.
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11. The essential ingredients to constitute offence u/s 380 Indian Penal Code are :
i. Dishonest intention to take property.
ii. The property must be movable.
Iii. It should be taken out of possession of another person without his consent.
iv. There must be some moving of the property in order to accomplish the taking of it.
v. Theft should have been committed in a building used for human dwelling or custody of property.
12. For securing conviction u/s 506 Part (II) of the Code, the essential ingredients are required to be proved beyond reasonable doubts in the present case are:
i. Threatening a person with injury to his person with intent to cause alarm to that person.
ii. Such threat was to cause death or grevious hurt.
13. To seek u/s 427/511 of the Code, the prosecution is also required to show that accused attempted to cause mischief and damage to property of more than Rs. 50/.
14. The material witness examined by prosecution to prove its case was PW1. It has been held in a plethora of judgments that the evidence led by prosecution has to be weighed and not counted. It has been held in Vedivelu Vs. State of Madras AIR 1957 SC 614 as under:
State Vs. Avinash Tyagi Page 7/11 FIR No. 64/05
"...As a general Court may act on the testimony of a single witness, though uncorroborated. It was further held that unless corroboration is insisted upon by statue, Courts should not insist on corroboration except in cases where the nature of the testimony of a single witness itself required as a rule of prudence, that corroboration of the testimony of a single witness was or was not necessary must depend upon facts and circumstances of each case..."
15. It has further been held in Mutra Kirsani Vs. State AIR 1983 Cut.L.T. 349 as under:
"...For proof of fact, law does not require plurality but quality of evidence. Evidence is to be weighed and not counted. An order of conviction can be rested on testimony of solitary witness if the evidence is clear and cogent and is of unimpeachable character..."
16. Reliance is also placed upon Balashwar Raj Vs. State of Bihar (1963) 2 SCJ 128 and Ramesh Krishna Madhusudan Nayar Vs. State of Maharashtra AIR 2008 SC 927 where it has been reiterated that no particular number of witnesses is required to establish the guilt of accused and conviction can be based upon testimony of single witness who is found to be above reproach and suspicion.
17. However, in the present case, the defence brought to the fore material contradictions in the testimony of PW1 some of which are as under :
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.
a. That the accused came to the office of complainant with a plastic can in his left hand and purportedly that can contained kerosene oil which was sprinkled in the office. Thus, whether or not accused came prepared to cause injury/ to assault/to wrongfully restrain or to cause fear to PW1 regarding any of the aforesaid acts has become doubtful. b. That accused caused injury on the left shoulder of PW1 with the handle of the sofa and hence, it is doubtful whether the witness is stating the truth. It is an improvement which goes to the root of the matter and merely to act on his testimony would not be safe.
c. The weapon of offence initially was stated to be a danda in Ex. PW1/A and changed to handle of a sofa before the Court. In fact, the danda produced before the Court in unsealed condition was not identified by the witness. Once again, doubts are raised on allegations that accused came prepared as required by Section 452 of the Code as well as Section 427/511 of the Code.
19. Since, the veracity of PW1 has been controverted, his testimony solely without corroboration is not safe to act on.
20. Further, as per the prosecution's story, the aforesaid danda was State Vs. Avinash Tyagi Page 9/11 FIR No. 64/05 recovered at the instance of accused. The disclosure statement, Ex.
PW5/C is stipulated to have been recorded on 27.02.2005 pursuant to which recovery was made vide Ex. PW4/A. PW4 stated that at the time of recovery PW Amit and PW Raj Kumar were also witnesses. However, Ex. PW4/A does not bear their signatures. Those witnesses when examined before Court stated that accused was carrying an acupressure stick in his hand. The genuineness of disclosure statement has been challenged by defence when PW5 admitted that it was prepared prior to arrest of accused. Thus, recovery from accused has not been proved by the prosecution beyond reasonable doubts.
21. It is pertinent to note that the prosecution also failed to prove the can which was recovered from the spot as the can produced in Court was not identified by PW1. Even otherwise, PW7 admitted that kerosene oil was not sent for examination to FSL.
22. The site plan Ex. PW7/B was also not proved as PW1 stated that he did not remember if it was prepared at his instance and as Ex. PW7/B did not bear the signature of complainant lending credence to the defence that witness was not present when it was prepared.
23. The prosecution has also failed to prove that investigation was State Vs. Avinash Tyagi Page 10/11 FIR No. 64/05 fair. In fact, not only the recovery from accused was shrouded in doubt but also there appears to have been no earnest efforts to join public witnesses at the spot. PW3 and PW9 were examined. However, neither of them claim to be the eye witness. They may be res gestae witnesses.
24. In view of the above discussion, as testimony of PW1 has not been corroborated by cogent evidence, there are lacunae in the case of prosecution which go to the root of the matter. The prosecution has miserably failed to prove all the essential ingredients of offences with which accused was charged. Hence, accused is acquitted of offences charged with.
25. File be consigned to records after compliance with section 437A Cr.P.C.
.
Announced in the open Court (Ms. VIJETA SINGH RAWAT) on 18.12.2013 MM04/Patiala House Courts New Delhi.
State Vs. Avinash Tyagi Page 11/11 FIR No. 64/05