Delhi District Court
Yashbir vs The State (Nct Of Delhi) on 14 May, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Criminal Appeal
CNR No. DLSW010018392018
Registration No. 35/2018
1. Yashbir
2. Ravinder
Both sons of Sh. Suraj Bhan
R/o House No. 138, Village Kakrola,
Dwarka, New Delhi
3.Ranbir
S/o Om Prakash
R/o House No. 137, Village Kakrola,
Dwarka, New Delhi
.....Appellants/accused
Versus
The State (NCT of Delhi)
..... Respondent
Appeal under section 374 Cr.P.C. against the
judgment dated 27.11.2017 passed by Ld. Metropolitan Magistrate
Date of Institution : 23.01.2018
Arguments heard on : 13.04.2018
Date of Judgment : 14.05.2018
Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 1 of 18
JUDGMENT
1. First appeal under section 374 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been preferred by appellants/accused against impugned judgment of conviction dated 27.11.2017 passed by Trial Court of Ms. Purva Sareen, Ld. ACMM, SouthWest, Dwarka Courts, Delhi, in case FIR No. 1108/07 PS Dwarka Sector 23 titled as State Vs. Yashbir & Ors.
2. Vide impugned judgment, the Magisterial trial court has held the accused Yashbir, Ranbir and Ravinder guilty and convicted them of the offences under section 323/325/34 IPC.
3. I have heard appellants/accused/convicts through Sh. Rajesh Bhatia, Ld. Counsel and respondent State through Sh. Pramod Kumar, Ld. Addl. P.P. for the State. I have perused the record of appeal and of Trial Court. I have given my thoughtful consideration to the rival contentions put forth.
Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 2 of 18
4. Facts germane to the prosecution case are as follows: On 12.11.2007 at 10.45 AM on receipt of DD No. 10
regarding a quarrel at 60 feet road, near Nand Vihar, Kakrola, Sector 16, Dwarka, SI Sunil Kumar (PW11) alongwith HC Yatender and other staff members reached at the spot where he came to know that there was a quarrel between Dilsukh, his sons with their nephews; there he came to know that the injured were already taken to hospital; he reached at DDU hospital and recorded statement Ex. PW2/A of Dilsukh and statements of other parties. Complainant Dilsukh in his statement Ex. PW2/A complained of appellants/accused having caused hurt to him and his sons Manjeet (PW8), Sanjeet (PW9) and Ajay (PW10) by lathi and dandas. On 15.11.2017, when the injury on MLC of Dilsukh was opined as grievous by the Doctor and those of Ajay and Manjit as simple injuries on their MLCs, PW11 prepared rukka Ex.PW11/A and got the FIR registered. Thereafter, the second IO ASI Yatender Singh (PW7) arrested accused Yashbir, Ravinder and Ranbir and recorded statements of witnesses. On completion of investigation, chargesheet was filed for the offences under section 325/323/34 IPC. Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 3 of 18
5. Appeal rests upon the premise that impugned judgment is bad in eyes of law and conviction is based on surmises and conjectures; vide impugned judgment, Ld. ACMM has convicted the appellants for the offences punishable under section 323/325/34 IPC, however, they were given the benefit of probation and released on bond of probation for the period of two years subject to the contention that they shall keep peace and be of good behaviour during such period; the impugned judgment is contrary to the facts of the case which is not sustainable in the eyes of law; Learned Trial court has failed to appreciate that present FIR was counter blast of FIR no.1094/07 registered against Dilsukh Gahlot, Ajay Gahlot, Manjit Gahlot and Sanjeet Gahlot under section 323/325/34 IPC and the witness namely Manjit (PW8) and Sanjeet Kumar (PW9) were accused in FIR No.1094/07 under section 323/325/34 IPC; no independent witness was examined by prosecution to prove the case; Ld. Trial Court has failed to appreciate that it was a family land dispute; no recovery was effected from any accused; there were material contradictions in the examination and crossexamination of material witnesses; the judgment cited by the Ld. Trial court i.e., 1975 SCR 981, Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 4 of 18 AIR 1994 SC 1251 were not applicable in the present case and the facts were entirely different from facts of those cases; It has been prayed that impugned judgment be set aside.
6. The case of the prosecution hinges on the material though interested testimonies of first informant/injured PW2 Dilsukh Gahlot and his three sons namely PW8 Manjit, PW9 Sanjeet Kumar and PW10 Ajay.
7. In the lodged report Ex. PW2/A, it is the version of PW2 to the investigating agency that on 12.11.2007 at 10.00 AM, his nephews Ravinder, Yashbir and Ranbir, who had share in ancestral property, came to his share of land at 60 feet road, Sector 16A, Dwarka, Nand Vihar Colony, Kakrola, Delhi and started digging foundation there and when PW2 objected, then the aforesaid accused started beating PW2,PW8, PW9 and PW10 with lathi and dandas upon which PW2 received injury on left hand and his sons PW8, PW9, PW10 also received injuries.
8. Per contra to the version of PW2 in Ex. PW2/A, when PW2 Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 5 of 18 testified before trial court he came out with altogether different version narrating and improving upon his previous version saying oral mutual partition in ancestral property took place in 199798 wherein he acquired the plot no. 205 ad measuring 287 square yards adjacent to 64 feet road, JJ Colony where four rooms were constructed; due to increase of land price the accused persons had asked for fresh partition which was objected to by PW2 and then PW2 had also requested the accused to partition the plot situated in Khasra no. 195/10 situated near extended village abadi for which accused refused. PW2 testified of altercation on 11.11.2007. With regard to the sequence of events of date 12.11.2007, the testimony of PW2 is in contradiction to his version of facts reported in Ex. PW2/A. PW2 testified that on 12.11.2007 besides the arraigned appellants/accused, persons namely Jasbir, Suraj Bhan, Satbir, Vijender and one Rajpal working in Delhi Police came to his plot, started demolishing the wall and also started removing tenants of PW2 and when PW2 tried to stop them those persons did not listen, so PW2 made call at 100 number. When police did not come, as per PW2, he again asked those persons not to do so but instead of listening to him Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 6 of 18 aforesaid persons attacked him. PW2 further deposed that appellants/accused as well as aforesaid persons namely Jasbir, Suraj Bhan, Satbir and Vijender started abusing him and threatened him. Also as per PW2, Suraj Bhan, Ravinder, Yashbir, Jasbir and Ranbir attacked with lathi and danda and as a result of beatings, he received injuries in the attack on left hand finger. PW2 deposed that his three sons PW8, PW9 and PW10 came for his rescue and besides that 2/3 other persons also came but they were threatened by the accused persons. As per PW2, his three sons were also attacked by the aforesaid persons when they tried to rescue PW2. PW9 Sanjeet received injuries on his hand and head. PW8 Manjeet received injuries on his wrist and PW10 Ajay received injury on forehead.
9. PW8 Manjit testified that on 12.11.2007, he left his home to go to plot in Nand Vihar along with his father PW2, brothers PW9 and PW10 and on reaching there at plot at Nand Vihar, he (PW8) saw Suraj Bhan, Jasbir, Satbir along with appellants/accused present on their plot who were raising hue and cry and saying that the four walls of their plot should be pulled down and PW2 asked them to calm down and not to Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 7 of 18 fight saying why they were fighting as partition took place in 199798 but all the appellants/accused refused, became aggressive, started harassing their tenants and so PW2 called at 100 number. As per PW8, at that time all aforesaid persons including appellants/accused and Suraj Bhan, Jasbir and Satbir had demolished one side of the wall that had been constructed on their plot. Also as per PW8, when PW2 tried to stop the aforesaid persons then from amongst aforesaid persons, Jasbir, Suraj Bhan and appellant/accused Ranbir attacked PW2 whereas PW8 tried to protect his father PW2, on seeing the sudden attack by the aforesaid persons and in the process brought PW2 to the side but by then they had been attacked by the lathi danda by Suraj Bhan, Jasbir as well as appellant/accused Ravinder on account of which brother of PW8 sustained injuries and PW2 sustained fracture in left hand and PW8 also received injuries. As per PW8, he was attacked by Jasbir with pointed lathi and he sustained injuries on his right hand and then PW2 again called at 100 number.
10. PW9 Sanjeet Kumar testified that at 9.00 AM, on 12.11.2007 when he was at his home at Kakrola village, his uncle Suraj Bhan, Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 8 of 18 appellants/accused Yashbir, Ravinder, Ranbir as well as other person Rajpal left from their home also around 9 AM, so PW9 had suspicion that these persons were leaving for encroaching their plot no. 205, B Block, Nand Vihar, 60 feet road. As per PW9, he along with his father PW2, PW8 and PW9 left for their plot in Nand Vihar, Delhi and on reaching there saw appellants/accused as well as Suraj Bhan, Rajpal, Jasbir and Vijender and these persons were breaking down the four walls that had been constructed at their plot and also threatened their tenants. As per PW9, when his father tried to stop them and requested them not to demolish their walls as plot belonged to him, they did not stop and PW2 called at 100 number for help, waited for police to come and help. When police did not come after 1015 minutes, PW2 again called 100 number twice and then requested aforesaid persons not to demolish the walls. As per PW9, on his protest, PW2 was attacked by Jasbir, Suraj Bhan and appellants/accused persons, wheres PW9 along with his brothers PW8 and PW10 tried to stop those persons from hurting his father PW2, upon which those persons started beating them with lathi and danda. As per PW9, he was beaten up by Jasbir, Suraj Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 9 of 18 Bhan as well as appellants/accused persons. PW9 stated that he received injury on left hand, first finger and on his head whereas his father and other brothers also received injuries.
11. PW10 Ajay has altogether different version to tell. PW10 testified that on 12.11.2007, he along with PW2, PW8 and PW9 went to their plot in Nand Vihar having apprehension of some wrong doing by appellants/accused persons and Jasbir, Suraj Bhan and Satbir with whom they had dispute one day before. As per PW10, when they reached at the plot, PW10 saw appellants/accused persons as well as Jasbir, Suraj Bhan demolishing four walls of the rooms constructed at their plot and these persons were having Kassis with them upon which PW2 asked those persons what they were doing as it had been decided to have a dialogue but Suraj Bhan did not listen to and instead said that the plot will be redistributed again. As per PW10, appellant/accused Yashbir raised hand on his father PW2, whereas aforesaid person Jasbir and appellant/accused Ranbir had Kassis in their hand. PW10 testified that he received injuries on his head but he did not remember as to which person had hit which person but they were taken to hospital for Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 10 of 18 treatment. In the cross examination by Ld. APP for the State, PW10 parrot like admitted that appellants/accused persons had beaten him, PW2, PW8 and PW9 with lathi and danda on being so suggested by Ld. A.P.P. for the State. PW10 further elicited that the properties of both factions were in joint name and they as well as the appellants/arraigned accused belonged to same family chart. Also PW10 elicited that on 12.11.2007, his brothers PW8, PW9 with his father PW2 had left the house at around 9 AM and before leaving for the plot they had taken Kassis etc. from their residence along with them and when PW10 had reached at the plot, the appellants/accused persons were preparing to dig the foundation (Neev). Also as per PW10, labourers of appellants/accused persons were also present at the time when accused were trying to dig the foundation.
12. True that human memories are apt to blur with the passage of time, there may be minor discrepancies/errors of observation due to mental disposition, shock and horror at the time of incident, omissions, mistakes in the testimonies of the interested/injured witnesses. Also it is true that the testimonies of injured/victim witness holds more Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 11 of 18 credence, who normally would not shield real culprit or let actual assailant go unpunished, to falsely implicate the third party for the commission of an offence. Also it is true that accused are not to be acquitted solely on the account of defects in the investigation. Yet, in absence of corroboration from independent source, the testimonies of injured/victim witnesses are to be scrutinized with utmost care, caution and circumspection. To base conviction on them, they should be free from embellishments, material contradictions, severe infirmities and inherent improbabilities going to the root of matter to check and shake basic version and core of prosecution case, so as to be worthy of credence, reliable and trustworthy.
13. In 2008 CRI. L. J. 3061 , Dalbir Singh v. State of Haryana, Supreme Court held that "Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 12 of 18 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 omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 13 of 18 rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. 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 discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
14. An attempt has been made in terms of felicitous metaphor, to separate grain from the chaff, truth from falsehood.
15. When read as a whole, testimonies of PW2, PW8, PW9 and Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 14 of 18 PW10 embody entirely different versions of manner and sequence of occurrence of the offences of causing hurt and grievous hurt on the person of victims, the manner of such assaults, weapon(s) used in commission of offence(s), which all facts have been testified by these interested material witnesses in material contradiction with each other and with presented case of prosecution initially registered in terms of Ex. PW2/A, victims bringing forth absolutely new cases more than one, as per their version, elicited herein before, reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. There was no impediment in the way of first informant PW2 to detail the names and particulars of Rajpal, Suraj Bhan, Vijender and Satbir and describing their alleged role in commission of offences while reporting the matter in report Ex. PW2/A, or describing them as perpetrators of crime. MLCs Ex. PW4/B, Ex. PW4/C, Ex. PW4/A and Ex. PW4/D find no mention of name(s) of assailant(s) given by injured/victim to examining Doctor. On appreciation of entire prosecution evidence, testimonies of first informant/complainant PW2 Dilsukh Gahlot, PW8 Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 15 of 18 Manjit, PW9 Sanjeet Kumar and PW10 Ajay can be classified as neither wholly reliable nor wholly unreliable as classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. In absence of corroboration from any independent testimony, it would be extremely hazardous to place implicit reliance upon such testimonies of PWs 2, 8, 9 and 10 suffering from material contradictions, severe infirmities and inherent improbabilities going to the root of the matter to check and shake basic version and core of the prosecution case and thereon convict any or all appellants/accused persons, as also these witnesses named Jasbir, Suraj Bhan, Vijender, Rajpal and Satbir as assailants per contra to presented case of prosecution. These material witnesses were confronted and contradicted with various portions of their previous statements Ex. PW2/A, Ex. PW8/DX1, Ex. PW9/DX1 and Ex. PW10/PX1 respectively in the course of their deposition. Testimonies of these interested material witnesses PW2, PW8, PW9 and PW10 suffer from embroideries, improvements, exaggerations and contain absolutely different versions from the version borne out in initial report Ex. PW2/A lodged by PW2. Accordingly, no new case Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 16 of 18 can 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 discard the prosecution evidence in toto. (See Zwieolae Areal vs. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Others vs The State of Punjab, AIR 1975 SC 1962).
16. In view of the afore going discussions, I am of the considered opinion that in absence of corroboration from any independent testimony, the doubted interested testimonies of interested witnesses PW2 Dilsukh Gahlot, PW8 Manjit, PW9 Sanjeet Kumar and PW10 Ajay have not enabled the prosecution to prove its case against the appellants/accused persons beyond reasonable doubt. The impugned judgment of conviction cannot be sustained on the basis of these interested testimonies of PW2 Dilsukh Gahlot, PW8 Manjit, PW9 Sanjeet Kumar and PW10 Ajay in the fact of the matter. The impugned judgment of conviction is set aside. Appellants/accused persons are held not guilty and acquitted for the offences charged. Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 17 of 18
17. Appellants/accused persons are directed to furnish a personal bond each of Rs.10,000/ under section 437A Cr.P.C. during the course of the day and surety of like amount within 3 working days also under section 437A Cr.P.C.
18. Trial Court record be sent back to concerned Magisterial Court. File of appeal be consigned to record room. Digitally signed by
GURVINDER GURVINDER PAL SINGH PAL SINGH Date: 2018.05.14 15:45:21 +0530 Announced in the open Court (GURVINDER PAL SINGH) on date 14.05.2018 ASJ 05/SW/DWARKA COURTS, NEW DELHI (pb) Criminal Appeal CNR No. DLSW010018392018 Yashbir & Ors. Vs. The State (NCT of Delhi) Page 18 of 18