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Delhi District Court

State vs . Rahul Dabas & Ors. on 20 November, 2014

                  IN THE COURT OF SH. HARVINDER SINGH,
                  METROPOLITAN MAGISTRATE - 03 (WEST),
                    TIS HAZARI COURTS, DELHI - 110 054.

                                                           FIR No.729/2006
                                                           PS - Nangloi
                                                           State Vs. Rahul Dabas & Ors.
Unique Case ID No.02401R1302052006
                            J U D G M E N T

(a) Sr. No. of the case 2220/1/08

(b) Date of offences 20.07.2006

(c) Complainant Suresh @ Jagte S/o Sh. Ranbir Singh R/o VPO Chanoli, PS Kharkhoda, District Sonepat, Haryana.

(d) Accused person(s) (1) Rahul Dabas S/o Sh. Jet Singh R/o VPO Laad Pur, New Delhi.

(2) Aakash S/o Sh. Raghubir Singh R/o VPO Prahlad Pur, New Delhi.

(3) Bijender @ Jitender S/o Sh. Brahm Prakash R/o VPO Issar­Heri, PS Bahadurgarh, Dist. Jhajjar, Haryana. (4) Akhilesh S/o Sh. Laxman R/o E - 663, Agar Nagar, Metro Enclave, Prem Nagar - III, New Delhi.

(e) Offence(s) Under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.

(f) Plea of accused Pleaded not guilty persons

(g) Final Order Acquittal

(h) Date of institution 01.11.2006

(i) Date when judgment Not Reserved was reserved

(j) Date of judgment 20.11.2014 FIR No.729/2006 Page No.1 to 10 The brief facts of the case are that : ­

1. The accused persons have been charge sheeted for committing offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. The allegations against the accused persons are that on 20.07.2006 at about 08:00 pm at in front of Lokesh Cinema, Main Rohtak Road, New Delhi, accused persons voluntarily restrained complainant Suresh from going in direction in which he was entitled to go and further caused injuries to him. According to prosecution, accused persons thereby committed offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.

2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to all the accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against all the accused persons under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 vide order dated 17.05.2010 to which they pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

3. In order to prove the guilt of accused, prosecution has examined five witnesses. PW1 Suresh @ Jagte has deposed that in year 2006, he used to work as FIR No.729/2006 Page No.2 to 10 cable operator in Rajendra Park and have taken connection from Universal Communication Center. On 20.07.2006 at about 08:00 pm, he was going from Rajendra Park i.e. his office to house of Amarjeet Singh at Bhuton Wali Gali. When, he reached in front of Lokesh Cinema on his motorcycle then accused persons namely Akshay, Akhilesh and Rahul Dabas were present in a car, stopped him and started beating him with fist and blows due to which he fell down on the ground. Thereafter, accused persons ran away. He took rickshaw and came to Bhuton Wali Gali. When, he was getting down from rickshaw, he fell down. Someone called at 100 number. PCR van took him to SGM Hospital. His statement Ex.PW1/A was recorded. On 22.07.2006, IO prepared site plan at his instance. He admitted in his cross­ examination by Ld. APP for the State that there were four persons who caused injuries to him, but he could not identify one of them. PW1 was examined, cross­ examined by Ld. APP for the State, cross­examined by accused person(s) and was discharged.

4. PW2 ASI Phool Kumar has proved and exhibited formal FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B. PW2 examined, cross­examined and was discharged.

5. PW3 HC Subhash has deposed that on 20.07.2006, he along­with SI Raghubir Singh and complainant went to spot and IO prepared site plan at the FIR No.729/2006 Page No.3 to 10 instance of the complainant. Thereafter, they came back to PS where accused persons were present. Accused persons were arrested and personally searched by IO vide memos Ex.PW3/A to Ex.PW3/H. PW3 examined, cross­examined and was discharged.

6. PW4 Dr. Brijesh Singh has proved and exhibited MLC Ex.PW4/A. PW4 was examined, cross­examined and was discharged.

7. PW5 SI Raghubir Singh has deposed that on 20.07.2006 on receipt of D.D.No.63B Ex.PW5/A, he along­with Ct. Kanwar Singh went to SGM Hospital where he obtained MLC of injured Suresh. He recorded statement of Suresh and prepared Rukka Ex.PW5/B which was given to Duty Officer for registration of FIR. Injured was relieved from the hospital and he prepared site plan Ex.PW5/C at his instance. He arrested and personally searched accused persons vide memos Ex.PW3/A to Ex.PW3/H and thereafter, accused persons were released on bail. He recorded statements of witnesses, prepared challan and submitted in the Court. PW5 was examined, cross­examined and was discharged.

8. On 26.08.2014, further evidence of the prosecution was closed. STATEMENT OF ACCUSED PERSONS

9. After closure of prosecution evidence, statements of all four accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 FIR No.729/2006 Page No.4 to 10 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to them. Accused persons denied all the allegations and stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead evidence in their defence.

10. Final arguments heard. Record is perused.

APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS 11.1(a) In this matter, it is the contention of the defence that PW1 Suresh @ Jagte is not a reliable witness as he has changed statement at each and every stage. It is the contention of the defence that PW1 has admitted that area of incident is a populated area and no public witness has been joined in the investigation of the present matter. It is the contention of the defence that this is a case of false implication due to business rivalry, therefore, there are number of contradictions qua different proceedings done in the investigation, and furthermore, FIR was also lodged after one day after manipulating everything.

11.1(b) On the other hand, it is the contention of the prosecution that case in hand is a true case, as in this matter, first information was received in the form of D.D.No.63B dated 20.07.2006 regarding the incident in question wherein the place of incident is mentioned same as deposed in the deposition of PW1. It is further contention of the prosecution that PW1 was got medically examined on the same day FIR No.729/2006 Page No.5 to 10 on 20.07.2006 vide Ex.PW4/B. It is further contention of the prosecution that enmity is double edged weapon, therefore, the same is the motive for giving beatings in this matter. It is further contention of prosecution that no cross­examination of IO has been done by defence qua delay in registration of FIR in this matter, therefore, the said defence has been taken only for the purpose of taking defence and even defence is not serious about the same. It is further contention of prosecution that had IO been cross­examined on said issue, he would have explained the reason of delay in registration of FIR.

11.2 This Court has considered the contentions raised by both sides. In this matter, complainant PW1 has deposed in his examination­in­chief that on 20.07.2006 at about 08:00 pm, when he was going to his owner's house on motorcycle and when he reached in front of Lokesh Cinema, accused persons namely Rahul Dabas, Akash and Akhilesh were present in their car, stopped him and starting giving him fists and blows due to which he fell down on ground. Thereafter, they ran away from the spot. He took rickshaw and came to Bhuton Wali Gali where he fell down, while getting down from Rickshaw. Someone called 100 number and PCR took him to SGM Hospital. He further categorically deposed that there were only three accused persons. His statement Ex.PW1/A was recorded at hospital and on 22.07.2006, IO prepared site plan at his instance. In his cross­examination by Ld. APP for the State, FIR No.729/2006 Page No.6 to 10 he deposed that it is correct that there were four persons who caused injuries to him, but, he could not identify one of the accused, however, he denied the suggestion that he has been won over by accused Jitender @ Bijender and therefore, he was not disclosing his name. On being confronted with his statement Ex.PW1/A from point 'X' to 'X', he submitted that he was given beatings by four persons, but, he could not identified one of them. He did not identify Bijender as one of assailant, even in cross­ examination by Ld. APP for the State.

11.3 In statement Ex.PW1/A, PW1 has stated that when he was going to meet his owner on his motorcycle and was positioned in front of Lokesh Cinema, Rahul Dabas, Akash, Akhilesh and Jitender @ Bijender S/o Brahm Prakash resident of Isarheri, Delhi came in car and started giving beatings to him by fists and kicks blows. He fell on the ground. In later, part of the said statement, he further stated that Rahul Dabas, Akash, Akhilesh and Jitender @ Bijender has inflicted injuries to him by giving beatings with fists and blows.

11.4 Now, if we examine the statements of PW1 in this matter, first given to the police where he has alleged to have been given beatings by four accused persons with names including of Jitender @ Bijender and his fathers name, in examination­in­ chief before this Court where he deposed that he was given beatings only by three accused persons deposing their names and denied being any fourth person involved in FIR No.729/2006 Page No.7 to 10 giving beatings and his third statement in cross­examination by Ld. APP for the State where he again admitted the involvement of the fourth person in given beatings then, they are inherently contradictory in nature. Had he deposed in his examination­in­ chief that he was given beatings by four persons but he could not identify one of them due to any reason even then his deposition before the Court would have been acceptable but in the given circumstances, where at first instance, he has alleged to have been given beatings by four persons giving their names, subsequently changed his statement to have been given beatings by three persons and there being no involvement of fourth person and further, subsequently changing his version that four persons were involved in given beatings to him but he could not tell the name of fourth person, he is a highly unreliable and untrustworthy witness. 11.5 In matter of "Ugar Ahir & Ors. Vs. The State of Bihar", AIR 1965, SC 277, the Hon'ble Supreme Court of India observed as under :­ "The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

Hon'ble High Court of Delhi also reiterated the same in matter of "Suresh Pehelwan Vs. State of Delhi" decided on 05.11.2012 : ­ "It is the duty of Court to separate grain from chaff. Where chaff can be separated FIR No.729/2006 Page No.8 to 10 from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in CRL. A Nos. 72/2009&73/2009 Page 25 of 46 omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution...................

...................Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto".

11.6 In view of the above­said judgments, it is clear that it is the duty of the Court to separate grain from the chaff and to search out the truth from the evidence adduced before it, however, where such separation is not possible due to the grain and the chaff being inextricably mixed up then the Court is left only with one option to discard the evidence in toto. In the present matter also, the whole of the deposition of PW1 is so inherently contradictory that this Court is unable to find out the real truth, therefore, accused persons cannot be convicted on the basis of evidence of such an untruthful/untrustworthy witness for commission of serious offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. Therefore, in the considered opinion of this Court, accused persons are entitled to benefit of doubt in this matter.

14. The contention of the prosecution that MLC was prepared on the day of incident and information vide D.D.No.63B was received on the same day is also no help to the prosecution where their main witness is not worthy of credit who changes FIR No.729/2006 Page No.9 to 10 his version at each and every stage according to his whims and caprices. There are other contradictions on record also regarding the date and time on which the site plan was prepared in this matter, who was present at that time during preparation of site plan and they also gains significance in given circumstances. In view of same, accused persons are entitled to benefit of doubt in this matter.

15. In view of the aforementioned facts and circumstances, accused persons are given benefit of doubt in this matter and accordingly, all four accused namely Rahul Dabas, Aakash, Bijender @ Jitender and Akhilesh are hereby acquitted for the offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.

Announced in the open Court on November 20, 2014.

(HARVINDER SINGH) M.M.­03/THC (West), Delhi/20.11.2014 FIR No.729/2006 Page No.10 to 10