Delhi High Court
Rohtas & Two Others vs State & Another on 19 February, 2009
Author: Sunil Gaur
Bench: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Date of hearing: February 06, 2009
Date of Order: February 19, 2009
+ (1) Criminal Appeal No. 401/1999
% Rohtas & two others ... Appellants
Through: Mr. Rakesh K. Khanna, Senior Counsel
with Mr. Devender Grover & Mr. Shailya
Sinha, Advocates
Versus
State & Another ..Respondents
Through: Mr. Amit Sharma, Additional Public
Prosecutor for State
(2) Criminal Appeal No. 415/1999
% Mahesh Kumar ... Appellant
Through: Mr. N. Prabhakar, Advocate
Versus
State & Another .....Respondents
Through: Mr. Amit Sharma, Additional Public
Prosecutor for State.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. Both these appeals arise out of common impugned judgment of 9th August, 1999, whereby appellants Rohtas, Narender and Ram Kumar of Crl. A. No. 401/99 and appellant Mahesh Kumar of Cr. A. No. 415/99 have been held guilty by the trial court for the commission of offence under Section 307/34 of the IPC and vide order of 12th August, Crl. A. Nos. 401 & 415 of 1999 Page 1 1999, the trial court has sentenced these four appellants to undergo RI for period of ten years each and to pay a fine of Rupees five thousand each and in default thereof, to undergo SI for a period of three months each. An amount of Rupees fifteen thousand out of the fine, if realized, has been ordered to be paid to injured Balraj.
2. Both these appeals relate to one incident and so they have been heard together and are being decided together by this common judgment.
3. The factual scenario emerging from the record of this case is as follows:-
"On 28.2.1991 around 9 PM all the residents of the village Barwala including women and children had collected for litting Holi and the Holi was lit by the injured's father Sh. Balbir Singh. Accused persons were also present there at that time. Accused Narender @ Phenu, Rohtas and Ram Kumar gave exhortation to accused Mahesh that he should bring his truck and drove it on Balraj and in the meanwhile accused Mahesh came driving his truck No. DEG 2759 with a fast speed and drove it over Balraj who came under the said truck and suffered serious injuries on both his thighs and also on his right forearm. He was taken out from underneath the aforesaid truck by the villagers and was thereafter taken to hospital for medical treatment".
4. On the basis of statement of Balbir Singh, father of the injured- Balraj, the law was set into motion in this case and the spot proceedings were conducted by Inspector- Baldev Singh (PW-11). Statement of Crl. A. Nos. 401 & 415 of 1999 Page 2 injured Balraj was recorded and his medical records were collected. The truck in question was seized and statement of witnesses was recorded by the Investigating officer of this case and after completion of investigations, charges for the offence under Section 307/34 of the Indian Penal Code was filed against these four appellants/ accused. Trial commenced as these four appellants /accused pleaded not guilty to the charge framed against them for the offence of attempted murder.
5. During the trial, the evidence of thirteen witnesses was recorded. The material evidence is of the injured Balraj (PW-1) and eye witnesses Raj Singh (PW-2), Vikram Singh(PW-3) and Vijender (PW-12). Dr. Ashok Khurana (PW-5) has proved the MLC of the injured. Inspector Baldev Singh (PW-11) and Inspector Pratap Singh (PW-13) are the Investigating Officer of this case.
6. Appellants/ accused have denied the prosecution case in their statements recorded under Section 313 of the Code of Criminal Procedure recorded by the trial court. However, the appellants/accused had not led any evidence in their defence.
7. After the trial, appellants/accused stand convicted and sentenced as noticed in the earlier part of this judgment.
8. Learned Senior Counsel for the appellants contends that the genesis of this occurrence remains shrouded in mystery as Balbir, father of the injured, who is the first informant, has not proved in evidence the FIR of this case. It is pointed out that DD No.32 received regarding this incident was of quarrel and DD No.34 received thereafter, was regarding one Sudha Pandit running over the truck over a person.
Crl. A. Nos. 401 & 415 of 1999 Page 3 It is urged that the evidence of the injured PW-1 regarding his being caught by the three appellants/accused and of the fourth appellant/accused running over truck over him is highly improbable and no investigation was conducted in this case in respect of the aforesaid two daily diary entries.
9. It has been further contended on behalf of the appellant that the testimony of injured PW-1 regarding the truck hitting him from behind while he was caught hold of by co-accused, is not only improbable but it contradicts the earlier version of the injured. Attention of this court has been drawn to the evidence of Raj Singh PW-2 to point out that his version of the incident of truck running over the chest of the injured is also improbable as had it been so, then the chances of survival of the injured would have been remote. It is pointed out that it is so said by Dr.Ashok Khurana PW-5.
10. The next contention raised is that eye witness Vijender PW-12 contradicts the injured PW-1 regarding the role attributed to the appellants and he has stated in his evidence that the truck in question was driven by someone at a high speed and if it was so, then the injured would not have survived. It is also pointed out that the prosecution version is discrepant and unreliable and the clothes of the injured were not seized and the mechanical report of the recovered truck is not there on record to corroborate the prosecution case. It has been also urged that the appellants had not been questioned in their statements under Section 313 of the Cr.P.C. regarding exhorting co- accused Mahesh to run over the truck upon the injured. It has been argued on behalf of the appellants that it has come in the evidence of Crl. A. Nos. 401 & 415 of 1999 Page 4 Raj Singh PW-2 and Vikram Singh PW-3, that there was no enmity between the family of the appellants/accused and the complainant party, but a grievance was being nursed by the complainant party about the appellants/accused encroaching upon the Gaon Sabha land, regarding which a civil litigation was pending. Lastly, reliance has been placed upon the decisions reported in 1994(5) SCC 188; 1997 Cr.L.J. 2253; 2005 11 AD (Delhi) 410, 2001 (1) JCC (Delhi) 29, 2005 (1) JCC 239, 2008 (101) DRJ 265; 2008 (1) JCC 1; 2007 (2) SCC (cri) 234; 2004 (13) SCC 189; 2007 (13) SCC 83 and 2006 (10) SCC 524, to contend that inconsistent and contradictory prosecution version does not deserve to be accepted and the benefit of doubt has to be given to the accused party and not to the complainant party, as has been done by the trial court and, therefore, the impugned judgment deserves to be set aside and the appellants ought to be acquitted.
11. Sh. N. Prabhakar, learned counsel for appellant-Mahesh Kumar has adopted the aforesaid submissions made on behalf of the remaining three appellants and has further submitted that the ruqa of this case is infact a statement under Section 161 of the Cr.P.C., which is hit by Section 162 of the Cr.P.C. and the information regarding this incident was not sent to the higher officers. It is pointed out that it is highly unlikely that a father would not accompany his injured son to the hospital and this appellant/accused had no motive to make an attempt to murder Balraj PW-1, as it has come in the evidence that he had no enmity with the injured. Reliance has been placed upon the decisions reported in AIR 1997 SC (2780); AIR 2005 SC 757; AIR 2003 SC 4140; AIR 2003 SC 4259; 2007 AIR SCW 6475; AIR 2001 SC 990; 2001 AIR Crl. A. Nos. 401 & 415 of 1999 Page 5 SCW 2322 and (2006) 10 SCC 601, to contend that when two views are possible, then the view in favour of the accused has to be preferred and in the present case it is not possible to separate the truth from falsehood and, therefore, the evidence in toto has to be discarded and appellant/accused Mahesh is certainly entitled to the benefit of doubt in the present case, which has been illegally not given by the trial court, which renders the impugned judgment illegal.
12. Nothing else has been urged on behalf of the appellants.
13. Learned Additional Public Prosecutor for the State has taken the pains to take this court through the evidence on record to point out that the presence of the appellants/accused at the spot cannot be disputed and it stands amply proved from the evidence on record that it was the appellants/accused alone, who had committed the offence in question and their conviction/sentence is fully justified from the evidence on record and the discrepancies pointed out do not go to the root of the matter and are not sufficient to entertain any doubt about the involvement of the appellant/accused in committing the offence in question.
14. Administration of criminal justice system largely depends upon how the evidence recorded is appreciated by the courts. It is true that the maxim "falsus in uno falsus in omnibus" has no application in India, as witnesses just cannot help in giving embroidery to a story, however, true it may be and, therefore, an attempt has to be made to separate the truth from the falsehood. This aspect has been dealt with by the Apex Court in a decision in the case of Syed Abrahim Vs. State of Crl. A. Nos. 401 & 415 of 1999 Page 6 Andhra Pradesh (2006) 10 SCC 601 in the following words:-
"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."
15. After having scrutinized the evidence of the injured Balraj PW-1, It appears that his version of appellants Ram Kumar, Narender and Rohtas Kumar catching hold of him and of appellant Mahesh Kumar running over the truck over him is highly improbable. Not only this, Balraj PW-1 has stated in his evidence that the truck remained over his body for about 10-15 minutes and, thereafter, he was removed from under the wheel of the truck by the villagers and he had received minor injuries on whole of his body, which might be bruises or abrasions.
16. As already noticed above, Raj Singh PW-2 and Vikram Singh PW-3 do not attribute any motive to the appellants/accused for commission of this crime and their version is altogether different as they have stated in their evidence that the exhortation by the three appellants/accused to their co-accused was to drive the truck on the villagers, who had collected there to evict the accused persons from the Gaon Sabha land. It is matter of record that the villagers had collected at the spot on the day of incident, on the occasion of holi festival.
17. It is matter of record that a civil litigation was pending between the Crl. A. Nos. 401 & 415 of 1999 Page 7 parties i.e. M-34/2000 titled "Balraj Vs. Mahesh" and it is not in dispute that aforesaid Balraj is the injured of this case and abovesaid Mahesh is the accused of this case. It is evident from the certified copies of the evidence of Balraj PW-1, the injured of this case and from the evidence of Vikram PW-2 and Vijender PW-4, who are the eye witnesses of this case, that in the abovesaid civil case they have also deposed regarding this incident and the relevant extract of their deposition is as under:-
"The accident took place about 9 p.m. It is correct that Chatriwala Kuan was at a distance of about 100-150 yards from the place of occurrence. It is correct that occupants of the truck ran away from the spot taking advantage of the darkness. The driver also ran away. I had not seen the driver and other occupants of the truck. I recognize them by their voice. It was my guess that the person named by me in my examination in chief were occupying the truck as I recognize them by voice."
18. What Balraj PW-1, injured of this case, had deposed before the Civil Court reads as under:-
"It is correct that I had not seen the driver and other occupants of the truck at the time of accident because I was facing the opposite side and my back was towards the truck. Further I suffered injuries. Driver and occupants ran away from the spot taking benefit of darkness and I could not see them at that time."
19. It is difficult to make out which of the aforesaid version is correct and it is practically impossible to separate the truth from falsehood. No doubt, the incident had taken place, but the manner of taking place of Crl. A. Nos. 401 & 415 of 1999 Page 8 this incident is under a shadow of grave doubt. In the case of Hem Raj and Ors. Vs. State of Punjab AIR 2003 SC 4259, the Apex Court had deprecated the shifting stand of the crucial witness and had found that although the occurrence had taken place, but the evidence led was inconsistent and highly unsatisfactory and it was reiterated that if on the basis of the evidence, two views are reasonably possible, then the view in favour of the accused has to be preferred.
20. In the instant case, I find that due to the shifting stand of the material prosecution witnesses, regarding the manner of taking place of this incident, prosecution case suffers a serious set-back. In the ultimate analysis, apart from the shifting stand of the injured and eye witnesses of this case, the version of prime witness i.e. the injured himself, of three appellants holding him and of fourth appellant running truck over him at a speed of 35-40 kms. lacks credibility and merits rejection in view of the fact there was no enmity between the accused party and the complainant party.
21. As a consequence of above narration, appellants/accused are certainly entitled to benefit of doubt. Resultantly, the impugned judgment, which does not take notice of the shifting stand of the witnesses, is rendered unsustainable and is accordingly set aside and benefit of doubt is extended to the appellants/accused and they are acquitted.
21. Both the appeals are allowed and are disposed of accordingly.
Sunil Gaur, J.
February 19, 2009 rs/n Crl. A. Nos. 401 & 415 of 1999 Page 9 Page 1