Rohtas & Two Others vs State & Another
2009 Latest Caselaw 595 Del

*                     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
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