Delhi District Court
State vs . Gabbar Etc. on 19 February, 2011
State Vs. Gabbar etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 53/2009
State Vs. : 1. Gabbar
S/o Late Sh Balbir Singh
R/o Village Ghitorni,
New Delhi.
2. Sanjay
S/o Late Sh Balbir Singh
R/o Village Ghitorni,
New Delhi.
3. Sunil
S/o Late Sh Balbir Singh
R/o Village Ghitorni,
New Delhi.
4. Smt Begwati
W/o Late Sh Balbir Singh
R/o Village Ghitorni,
New Delhi.
SC No. 53/09 1/14
State Vs. Gabbar etc.
5. Smt Geeta
W/o Sh. Sunder Singh
R/o Village Ghitorni,
New Delhi.
FIR No. 568/2003
P.S. Vasant Kunj
U/s 147/149/323/34 IPC
Date of Institution : 20/12/2004
Date when arguments
were heard : 15/02/2011
Date of Judgment : 19/02/2011
JUDGMENT
BRIEF FACTS:
Brief resume of the facts of the prosecution case is as follows:
On receipt of copy of DD No. 16B, PW8 SI Rajesh Kumar alongwith PW4 HC (then constable) Ramesh Chand went to place of occurrence, Village Ghitorni, at house of accused Gabbar and on enquiries it was revealed that injured were removed by PCR SC No. 53/09 2/14 State Vs. Gabbar etc. vehicle to Safdarjung Hospital and no eye witness was met there. PW8 SI Rajesh Kumar with PW4 HC Ramesh Chand went to Safdarjung Hospital, obtained the MLCs of injured Jagbir, Dharamwati, Sanjay, Gabbar, Sunil, Sunder and Kavita who were treated there. In the meantime, Ct Om Parkash reached Safdarjung Hospital. Doctor declared injured Jagbir Singh fit for statement. PW8 recorded statement of PW1 Jagbir Singh as Ex PW1/A. In Ex PW1/A, PW1 Sh Jagbir Singh alleged that he was resident of Village Ghitorni and doing work of agriculture. On 25/09/2003, at about 5.45 am, Dharamwati, wife of PW1 was sweeping at outside the gate of PW1 and PW1 was standing at the gate of his house. Pyare Khan, who used to take milk from house of Sunder, was urinating in the small drain opposite gate of house of PW1 Sh Jagbir Singh, upon which PW1 raised objection and told Pyare Khan whether at his house, he used to urinate in front of the ladies. In the meanwhile, from the house of Sunder, Sunder, Sanjay, Gabbar and Sunil came and Gabbar said why PW1 was saying so to their milkman Pyare Khan and Gabbar started abusing having in his hand lathi and started quarreling with him. Thereafter, Begwati and SC No. 53/09 3/14 State Vs. Gabbar etc. Geeta came there and grappled with Dharamwati, wife of PW1 Sh Jagbir Singh and gave her beatings. Gabbar climbed the roof of his house and threw brick on the head of PW1. PW1 alleged that he, his sons and family members were having danger of life and property from all these above said persons and with these persons he earlier had previous cases. PW1 further alleged that aforesaid persons had caused him and his wife injuries. PW8 SI Rajesh Kumar scribed tehrir Ex PW8/C, sent it through PW4 HC Ramesh Chand to police station for getting FIR registered. PW6 ASI Saroj Bala scribed FIR No. 568/03, copy Ex PW6/A and handed over the copy of FIR and tehrir to PW4 HC Ramesh Chand who gave it back to PW8.
PW8 prepared site plan Ex PW8/B on 26/09/2003 at the instance of PW2 Sh Baleshwar, arrested the accused persons in the course of investigation. On completion of investigation, charge sheet was filed against the arrayed accused for offences punishable under Sections 147/149/323/34 IPC.
2. Vide order dated 23/03/2005 of Ld. Sessions Judge, both cases of FIR nos. 568/03, police station Vasant Kunj and 569/03, SC No. 53/09 4/14 State Vs. Gabbar etc. police station Vasant Kunj were ordered to be tried by one court i.e of my Ld. Predecessor since these cases were cross cases and had arisen out of one incident.
CHARGE;
3. In terms of order dated 27/09/2005 charge for offences under Sections 147/149/323 read with Section 34 IPC was framed against all accused persons to which they pleaded not guilty and claimed trial.
4. In the course of trial since accused Sunder had expired, proceedings against him were abated vide order dated 15/05/09 of my Ld. Predecessor.
WITNESSES:
5. To connect the accused with the offences charged, the prosecution has examined in all 9 witnesses namely PW1 Sh Jagbir Singh Pawar; PW2 Sh Baleshwar; PW3 Smt Dharamwati; PW4 HC Ramesh Chandra; PW5 Dr. Rekha Bharti; PW6 ASI Saroj Bala; PW7 SC No. 53/09 5/14 State Vs. Gabbar etc. SI Vidyadhar; PW8 SI Rajesh Kumar and PW9 Ct Chander Bhan. STATEMENTS OF ACCUSED:
6. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication. Accused Bhagwati stated that injured Dharamwati had injured her hand herself. Other accused stated that they were beaten by Abhay Raj, Darbar, Jagbir, Dharamwati, Kesar, Baleshwar, Amit and Rahul inside their house on 25/09/2003 in the morning when they were sleeping and this case was foisted upon them. Accused denied to enter upon their defence evidence.
ARGUMENTS
7. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. 7(i) Ld. Addl. PP argued that though PW2 resiled but yet the SC No. 53/09 6/14 State Vs. Gabbar etc. case of prosecution stands proved from the testimonies of injured witnesses i.e PW1 and PW3 who had given their version of the accused being members of unlawful assembly and had caused injuries on their person and the injured had narrated of the history of assault to the doctor examining them in the hospital. 7(ii) Ld. Defence Counsel argued that the version of interested material witnesses viz. injured is contrary to the medical version and also the presented case of prosecution and it were the PWs 1 and 3 who with their accomplices had become aggressor party and infact were perpetrators of the crime but instead lodged this case falsely implicating the arrayed accused.
7(iii) Upon the version of accused Gabbar, case FIR No. 569/03, P.S. Vasant Kunj was registered against PW1 Sh Jagbir Singh, PW3 Smt Dharamwati, PW2 Sh Baleshwar and others, titled State vs Abhay Raj & Others, which case has been simultaneously tried by this court and will also be decided simultaneously with this case at hand. The versions of the aggrieved/prosecution in both cases are different, having entirely different set of witnesses, about different sequence of occurrence and these cases have been tried separately. Evidence needs SC No. 53/09 7/14 State Vs. Gabbar etc. to be appreciated separately in these two cases, in terms of law laid in (1) Nathi Lal & Ors Vs. State of UP, 1990 SCC(Cri) 638; (2) Kewal Krishan Vs. Suraj Bhan & Anr, 1980 (Supp) SCC 499 and (3) Pal @ Palla Vs. State of UP, 2010 V AD (Cri) (SC) 53.
8. PW2 Baleshwar testified that on the fateful morning he had reached in his club, The Gym, at Ward No. 8 Mehrauli where he remained there till 10 am and reached back at his house at Village Ghitorni at 10.15 am. PW2 stated that he was not present at the time of alleged quarrel nor was knowing the cause of quarrel but later on had come to know about the quarrel having taken place and was falsely implicated in the cross case. Despite being cross examined at length by Addl. PP, PW2 had not testified any fact incriminating to the accused.
9. The case of prosecution hinges on the material but interested testimonies of injured PWs namely PW1 Jagbir Singh and PW3 Smt Dharamwati.
SC No. 53/09 8/14
State Vs. Gabbar etc.
10. Plurality of evidence is not necessity of law. Even in the absence of any independent ocular version, the conviction of the accused can be based upon the interested testimonies of the injured but such testimonies must pass the test of reliability, trustworthiness should be and free from material contradictions and severe infirmities which go the root of the matter to check the basic version and core of the prosecution case.
11. The appreciation of testimonies of PWs 1 and 3 reveals that not only they were embedded with material contradictions and severe infirmities but these witnesses have testified at variance with the facts of the presented case of prosecution, elicited in para no. 1, herein above.
12. As PW1, injured Jagbir Singh testified that accused Gabbar, Sunder, Sunil, Sanjay, Begwati and Geeta came there armed with lathis and dandas. In Ex PW1/A, in his previous statement to police, PW1 had stated that accused Begwati and Geeta came later and only Gabbar was having lathi and not others. In court, PW1 testified SC No. 53/09 9/14 State Vs. Gabbar etc. that accused persons started giving beating to him and his wife. In Ex PW1/A, PW1 stated that when Sunder, Sanjay, Gabbar and Sunil came then amongst them Gabbar had said, "why are you all saying all this to our milkman" and then they had started abusing PW1 and Gabbar was having lathi in his hand and they started quarreling with PW1. In Ex PW1/A, further had been stated that accused Begwati and Geeta came and grappled with wife of PW1 and gave her beatings and Gabbar had climbed on his roof and hit brick on head of PW1. No where in Ex PW1/A, PW1 ever explained to police in implicit terms that the accused persons gave beatings to him by any fist or leg or lathi blows. Also in Court, PW1 did not state that accused Gabbar had climbed the roof and hit brick on head of PW1 as was so stated by PW1 in Ex PW1/A to the police. PW1 had testified in Court that he was made to fell down by accused but he relieved himself from the clutches of accused and ran to make call to police. These facts were not so stated in his previous statement Ex PW1/A to police by PW1. In MLC Ex PW5/A which is dated 25/09/2003, injuries on the person of PW1 Jagbir Singh have been opined as CLW over occipital of head and were termed as simple injuries caused by SC No. 53/09 10/14 State Vs. Gabbar etc. blunt object and the history alleged was assault by brick. No where therein is any mention of the injured having communicated to the doctor of having been given beatings or assaulted otherwise than by a brick.
13. PW3 injured Dharamwati testified that she came out of house after brooming gate of the house and her husband PW1 was present with her at 6 am; then accused Gabbar, Sanjay, Sunil, Sunder, Begwati, Anand and Geeta came there. PW3 again stated that Anand was not there. PW3 stated that these persons grappled with PW1 and were armed with lathis and caused beatings to PW1 with lathis and she was also hit by lathis of accused. PW3 alleged that she was beaten with fist and leg blows. In her entire testimony in court, PW3 did not utter a word that accused Begwati and Geeta grappled with her. The testimony of PW3 is at complete variance regarding the sequence of occurrence, the manner of assault, roles of each accused, weapons used for assaulting PW3 as compared to the presented case of prosecution and as per lodged report of PW1, Ex PW1/A. It is not the case of the prosecution that all the accused persons had grappled SC No. 53/09 11/14 State Vs. Gabbar etc. with PW1 Jagbir Singh or all of them were armed with lathis or with lathis they had given beatings to PW1. All aforesaid narration of the facts in deposition of PW3 are material improvements, inconsistent with the presented case of prosecution. In MLC, Ex PW5/B of PW3 Smt Dharamwati, it is mentioned of history of assault and multiple superficial incised wounds over both forearms and one over interior crest wall, while the injuries were opined as simple and caused by blunt object.
14. Had six accused formed an unlawful assembly and in prosecution of common object caused beatings on the person of PWs 1 and 3, as alleged then there was every chance that PWs 1 and 3 would have sustained on their person, if not grievous injuries then more simple injuries as were found on their medical examination. Though it is alleged by PW1 and PW3 that PW1 was beaten by accused persons but only injury found on his person in the MLC was CLW over occipital portion of his head.
15. In the back drop of the resiling of PW2, absence of SC No. 53/09 12/14 State Vs. Gabbar etc. corroboration in material particulars from any independent witness, the contradictory version of PWs 1 and 3, which are at variance from the presented case of prosecution, shakes the basic version and core of the prosecution case making the testimonies of PWs 1 and 3 fall in the category of neither reliable nor unreliable witnesses as were categorized in the case of Vadivelu Thevar v. The State of Madras (1957 SCR 981) where it was held that "Hence, in our opinion, it is a sound and wellÂestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
SC No. 53/09 13/14
State Vs. Gabbar etc.
16. In the backdrop of above discussions it would be accordingly hazardous to place implicit reliance on the neither wholly reliable nor wholly unreliable testimonies of PWs 1 and 3 in absence of corroboration in material particulars by reliable testimony direct or circumstantial and thereon to convict the accused. The prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused are accordingly held not guilty and are acquitted for offences charged. Their bail bonds are cancelled and sureties are discharged. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 19/02/2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 53/09 14/14