PETITIONER: AMBIKA PRASAD AND ANOTHER Vs. RESPONDENT: STATE (DELHI ADMINISTRATION, DELHI) DATE OF JUDGMENT: 21/01/2000 BENCH: G.B.Patnaik, M.B.Shah JUDGMENT:
Shah,J.
These appeals are filed against the judgment and order
dated 21.3.1997 passed by the High Court of Delhi dismissing
Criminal Appeals No.45/92, 49/92 and 50/92 filed by the
present appellants, which arise out of common judgment and
order dated 24.03.1992 passed by the Addl. Sessions Judge,
Delhi in Sessions Case No.508/91. In all six persons namely
Ambika Prasad (A1), Krishanpal (A2), Ram Adhar (A3), Ram
Chander (A4), Shiv Raj Singh (A5) and Rajinder Singh (A6)
were tried for the offences punishable under Sections 148
IPC, 341 read with 149 IPC, 307 read with 149 IPC and 302
read with 149 IPC. Additionally, accused Ram Chander (A4)
was charged for the offence punishable under Section 27 of
the Arms Act. Out of them two were acquitted and appellants
Ambika Prasad, Krishanpal Singh, Ram Chander and Rajinder
Singh were convicted for the offences under Section 302/34
IPC, 341/34 IPC and 307/34 IPC. For sentence, the trial
court observed that murder appeared to be pre-planned.
Accused Ram Chander was a famous wrestler and for others no
criminal antecedent was brought to the notice of the Court,
therefore, it was held that it was not one of the rarest of
the rare cases. Hence, for the offence punishable under
Section 302/34 IPC, they were sentenced to suffer
imprisonment for life and to pay a fine of Rs.100/-. For
the offence punishable under Section 307 read with Section
34 IPC, the court imposed a sentence of four years and a
fine of Rs.100/- and for the offence punishable under
Section 341 read with Section 34 IPC fine of Rs.100/- was
imposed. Against that judgment, Ambika Prasad and
Krishanpal filed Criminal Appeal No.45 of 1992, Ram Chander
filed Criminal Appeal No.49 of 1992 and Rajinder Singh filed
Criminal Appeal No.50 of 1992 before the High Court of
Delhi. All the appeals were heard together and were
disposed by a common judgment and order. That judgment and
order is challenged by Ambika Prasad and Krishanpal by
filing Criminal Appeal No.1152/97, by Ram Chander by filing
Criminal Appeal No.1153/97 and by Rajinder Singh by filing
Criminal Appeal No.1154/97. Since these appeals arise out
of common judgment and order and from the same sessions
trial, they are disposed of by this common judgment and
order.
It is the prosecution version that Pratap Singh is the
owner of the disputed land in village Libaspur. It is
alleged that he sold 2 bighas out of 24 bighas of land to
one Mohinder Yadav and over this transaction there was
dispute between the vendor and the vendees, for which civil
suit was pending. A few days before the incident, Shiv Raj
(acquitted accused) told Kishan Dei (PW10) wife of Pratap
Singh that he had purchased the plot from Shri Ram Chander
and Ram Adhar accused and that he would take possession of
the land. She told him that it was a disputed land. PW4
Vikram Singh, PW5 Karan Singh and PW7 Anirudh Singh are the
sons of Pratap Singh. Deceased Virender Singh was the son
of elder brother of Pratap Singh. For the assault on the
complainant party and injury caused to the deceased Virender
Singh as well as injured witnesses, FIR was lodged by Vikram
Singh (PW4) on 30.06.1982 at 12.40 p.m. It was stated that
they were owners of 24 bighas and some biswas of land
towards East of G.T. road by the side of village Libaspur.
For the said land, there was a transaction with Saroop Nagar
Housing Society through Mohinder Yadav. It was decided that
on the receipt of entire consideration the possession of the
land would be handed over to the vendees. As sale
consideration was not paid, they were in possession of the
said land. As the Society started constructing houses, they
filed suit and obtained stay order which was in operation
till date. It was further stated that at about 10 a.m.,
when Karan Singh, Anirudh, Virender Singh were returning
after ploughing the land by their tractor, Ambika Prasad
alongwith his companion Rajinder Diarywala, Ram Adhar
Pehalwan and his so called adopted brother (subsequently
identified as Ram Chander), whose both ears were damaged and
who was known to the informant came there by the side of
house of Ambika Prasad alongwith 4 to 5 other persons.
Rajinder was holding a ballam (Spear), Ambika Prasad was
having a lathi, Ram Adhar was equipped with jaili (rake) and
his so-called adopted brother was armed with gun whereas
other persons were holding lathis. Ram Adhar in a loud
voice gave a lalkara that nobody should be spared and their
dead bodies should be laid so that there may not be quarrel
again. At that stage, he drove back the tractor towards
plot of one person named Dhillon but the tractor got
entrapped in a ditch. So, all the brothers came down of the
tractor and at that time Ram Chander wrestler brother of
Pehalwan Ram Adhar fired a shot from his gun, as a result
Virender Singh fell down and died on the spot. Rajinder
gave a blow of ballam on the face of PW5 Karan Singh, and
accused Ram Adhar and Ambika Prasad assaulted Karan Singh by
jaili and lathi. Anirudh PW7 was also beaten by lathi. He
was not injured because he hid himself behind the tractor.
At that time, wrestler fired at him but he escaped and ran
away. He raised alarm for help and on hearing the alarm,
Prem Singh PW8 and Rattan Singh PW10 alongwith other persons
arrived at the spot. He has further stated that with the
help of these persons accused Ambika Prasad and Krishanpal
were overpowered and during the scuffle they sustained
injuries. They were apprehended on the spot while they were
trying to run away after committing the crime. It is stated
that assault took place at about 10.15 a.m. and the police
reached there soon after the occurrence. Two injured
witnesses and two accused who were apprehended on the spot,
were taken to Hindu Rao Hospital, Delhi by SI Prithipal
Singh of Police Control Room between 12.05 p.m. and 12.10
p.m. Thereafter, FIR was recorded at about 12.40 p.m.
In the present case, injuries to the prosecution
witnesses Karan Singh and Anirudh Singh are proved by
examining PW1 Dr. Joginder Mittal of Hindu Rao Hospital.
PW2 Dr. P.K. Sakondia of the said hospital also examined
accused Ambika Prasad and Krishanpal Singh and has proved
injuries suffered by them. Injuries to the accused are
abrasions and bruises. PW3 Dr. L.T. Ramani conducted
postmortem examination of Virender Singh on 30.06.1982 at
about 3.00 p.m. and recovered 43 pellets from his body.
According to him the injuries were caused by the fire arm
except injury No.3 which was an abrasion. According to the
doctor, the injuries were sufficient in the ordinary course
of nature to cause death. In the present case, motive is
the land dispute between the complainant party and the
accused. The occurrence at the scene of offence is also
established and is not disputed. With regard to the
evidence of PW4 Vikram Singh who has lodged exhaustive FIR,
the High court observed that on occasions he had gone back
from his initial statement under Section 154 Cr.P.C. and in
that sense has turned hostile. The Court observed that
reading his evidence as a whole it appeared that he was
under fear from the accused and that he has stated so in the
cross-examination. The High Court further observed that
fear prevails in the mind of complainant party which could
be for the reason that accused party was stronger in terms
of money power and muscle power. After appreciating the
evidence of prosecution in detail and relying upon the
evidence of injured witnesses, Karan Singh (PW5) and Anirudh
Singh (PW7), the High Court dismissed the appeals.
At this stage, we would state that there are
concurrent findings given by both the courts below based on
appreciation of evidence and unless it is pointed out that
the said appreciation is unreasonable or unjustified, there
is no scope for interference in these appeals. Keeping that
in mind, we would decide the appeals after considering the
contentions raised by the parties.
Mr. R.K. Jain, learned senior counsel appearing for
Ram Chander submitted that there was no reason for the
courts below not to accept the plea of alibi set-up by
accused Ram Chander, whose consistent stand was that he was
getting training for Asiad Games throughout the day of
occurrence in Akhara. He was also not named in the FIR.
He submitted that prosecution witness Suraj Bhan (PW20) who
was examined by the prosecution to show that appellant was
missing from akhara at the time of occurrence was declared
hostile and further there was no reason for not relying upon
the defence witness HC Mangat Ram (DW5). He also submitted
that evidence of PW5 Karan Singh and PW7 Anirudh Singh which
is relied upon by the courts below for convicting the
appellants suffers from many infirmities and ought not to
have been relied upon for convicting the appellants.
Mr. D.D.Thakur, learned senior counsel appearing for
Ambika Prasad and Krishanpal submitted that there was no
reason for the courts below for believing the prosecution
version that the complainant party had gone for cultivating
the land which was sold by them and over which there was
construction of 50-60 houses. It is submitted that
complainant party was aggressor and the accused Ambika
Prasad had received as many as eight injuries and some of
them were grievous. He submitted that courts erroneously
relied upon the prosecution version that Ambika Prasad and
Krishanpal received injuries while they were running away
and they were followed by the villagers who caused injuries.
The learned counsel appearing on behalf of Rajinder Singh
adopted the contentions raised by the learned counsel for
the other accused.
In addition to the aforesaid contentions, counsel for
the appellants submitted that in the present case
prosecution has not examined the investigating officer who
was important witness and this has prejudiced the defence
raised by the accused. For the non-examination of the
investigating officer, learned counsel for the State
submitted that he was not aware of any reason given for
non-examination of investigating officer. However, he
submitted that one of the accused is a police officer and
known wrestler and, therefore, presuming that investigation
is intentionally or unintentionally faulty yet that cannot
be the ground for disbelieving the injured witnesses. It is
his contention that investigating officer might not have
stepped in the witness box because Ram Chander belongs to
the same department and that is the reason why PW20 Suraj
Bhan turned hostile and DW5 Mangat Singh has stepped into
the witness box to support the plea of alibi of Ram Chander.
Firstly, we would deal with the contention of the
learned counsel for the accused that non-examination of the
investigating officer has adversely affected their defence.
In our view, non-examination of investigating officer in the
present case has no bearing on appreciation of the evidence
of injured eye-witnesses. The learned Sessions Judge after
analysing the evidence of SI Kulwant Rai (PW31), Inspector
Suraj Bhan (PW20) observed that they resiled from their
earlier recorded statements and wanted to help accused Ram
Chander. The High Court has also observed that reason for
non- appearance of investigating officer is not far to seek
and obviously he was trying to help the accused. The High
Court further stated that prosecution case cannot be allowed
to suffer at the hands of the investigating officer or
agencies and investigating officer cannot be permitted to
hold the prosecution to ransom by his deliberate acts.
Dealing with a case of negligence on the part of the
investigating officer, this Court in Karnel Singh v. State
of MP {(1995) 5 SCC 518} observed that in a case of
defective investigation it would not be proper to acquit the
accused if the case is otherwise established conclusively
because in that event it would tantamount to be falling in
the hands of erring investigating officer. Similarly, in
Ram Bihari Yadav v. State of Bihar {(1998) 4 SCC 517 para
13} this Court observed:-
In such cases, the story of the prosecution will
have to be examined dehors such omissions and contaminated
conduct of the officials otherwise the mischief which was
deliberately done would be perpetuated and justice would be
denied to the complainant party and this would obviously
shake the confidence of the people not merely in the
law-enforcing agency but also in the administration of
justice.
Further in Paras Yadav and others v. State of Bihar
{(1999) 2 SCC 126} this Court held:-
It may be that such lapse is committed designedly or
because of negligence. Hence the prosecution evidence is
required to be examined dehors such omissions to find out
whether the said evidence is reliable or not
Further, it is to be borne in mind that criminal trial
is meant for doing justice to the accused, victim and the
society so that law and order is maintained. Hence, as
observed by this court in State of UP v. Anil Singh, (AIR
1988 SC 1998) it is necessary to remember that a Judge does
not preside over a criminal trial merely to see that no
innocent man is punished. A Judge also presides to see that
a guilty man does not escape. One is as important as the
other. Both are public duties which the Judge has to
perform. Hence, we would only state that it is unfortunate
state of affair that police officers resiled from their own
statements and deposed something contrary before the court.
Equally, it is unfortunate that investigating officer has
not stepped into the witness box without any justifiable
ground. But this conduct of the investigating officer or
other hostile witnesses cannot be a ground for discarding
the evidence of PW5 and PW7 whose presence on the spot is
established beyond reasonable doubt. They have suffered
injuries and their evidence is corroborated by medical
evidence. It is also in-conformity with what has been
stated in the FIR. In any case, investigating officer is
not at all material witness for the purpose of establishing
whether accused or the complainant party was the aggressor.
Not only that, accused have examined the defence witnesses
for establishing their say. Hence, non-examination of the
investigating officer cannot be a ground for holding that
injured witnesses should not be believed.
It is also to be pointed out that PW4 Vikram Singh
(informant) who had lodged FIR immediately was under
constant threat and was compelled not to speak the truth
despite the fact that he was the brother of deceased. Other
witnesses also turned hostile including PW6 Prem Singh son
of Pratap Singh and PW8 Rattan Lal, which indicates, as
observed by the High Court, that accused party was stronger
in terms of money power and muscle power. At this stage, we
would observe that the Sessions Judge ought to have followed
the mandate of Section 309 Cr.P.C. of completing the trial
by examining the witnesses from day to day and not giving a
chance to accused to threaten or win over the witnesses so
that they may not support the prosecution. It appears from
the record that examination-in-chief of PW4 Vikram Singh was
over on 06.2.1984. The counsel representing Ambika Prasad
requested the court that because of his uncles demise, he
would not be in a position to cross-examine the witness and,
therefore, recording of further cross-examination might be
adjourned. Thereafter, the witness was cross-examined in
the month of July, 1985. In our view, this is highly
improper. Even if the request for adjournment of the
learned counsel for the accused was accepted, the
cross-examination ought not to have been deferred beyond two
or three days.
It is next contended that despite the fact that 20 to
25 persons collected at the spot at the time of incident as
deposed by the prosecution witnesses, not a single
independent witness has been examined and, therefore, no
reliance should be placed on the evidence of PW5 and PW7.
This submission also deserves to be rejected. It is known
fact that independent persons are reluctant to be a witness
or to assist the investigation. Reasons are not far to
seek. Firstly, in cases where injured witnesses or the
close relative of the deceased are under constant threat and
they dare not depose truth before the court, independent
witnesses believe that their safety is not guaranteed. That
belief cannot be said to be without any substance. Other
reason may be the delay in recording the evidence of
independent witnesses and repeated adjournments in the
court. In any case, if independent persons are not willing
to cooperate with the investigation, prosecution cannot be
blamed and it cannot be a ground for rejecting the evidence
of injured witnesses. Dealing with similar contention in
State of UP v. Anil Singh (Supra) this Court observed:-
In some cases, the entire prosecution case is
doubted for not examining all witnesses to the occurrence.
We have recently pointed out the indifferent attitude of the
public in the investigation of crimes. The public are
generally reluctant to come forward to depose before the
Court. It is, therefore, not correct to reject the
prosecution version only on the ground that all witnesses to
the occurrence have not been examined. Nor it is proper to
reject the case for want of corroboration by independent
witnesses if the case made out is otherwise true and
acceptable.
The learned counsel for the accused further raised the
contention that there was delay in recording the statements
of injured witnesses, therefore, their evidence should not
be accepted, also requires to be rejected. In Dr Krishna
Pal & Anr. v. State of U.P. {(1996) 7 SCC 194} this court
rejected similar contention of non-explanation by the
prosecution as to why eye- witnesses had not been examined
shortly after the incident and for inordinate delay in
examining them, by holding that it would not be a ground to
discard the convincing and reliable evidence adduced in the
case. This contention is also considered by both the courts
and has rightly not been accepted. The trial court after
considering the evidence of PW5 Karan Singh held that delay
in recording the statement of this witness by the
investigating agency stands explained because Karan Singh
was having injuries on his face and in the region of his
mouth. His mouth was swollen with injuries all around and
he could hardly speak. It is also pointed out that
investigation officer was visiting the hospital almost
daily, obviously for the purpose of recording his statement.
Similarly, PW7 Anirudh Singh has stated that he was under
tremendous fear from the accused party. He was not going
out of his house and was staying with his in-laws and moving
stealthily. It is to be stated that both the injured
witnesses were found in the injured condition at the scene
of offence. From that place they were removed to Hindu Rao
Hospital by SI Prithi Pal Singh, who reached there after the
occurrence. Their injuries are also proved by Dr. Joginder
Mittal, PW1. They have deposed before the court that Ram
Chander was having a gun in his hand, Rajinder was having a
ballam and accused Ambika Prasad was having a lathi and
other accused were also having lathis. Accused Rajinder
inflicted ballam blow and Ram Adhar inflicted jaili blow on
Karan Singh. Ram Adhar also inflicted jaili blow on Anirudh
Singh. It is also stated by them that Ram Chander fired a
shot from his gun which hit Virender Singhs chest and as a
result Virender Singh fell on the spot and died. Both
specifically denied the defence version that they alongwith
their brothers started demolishing the wall of Gurudwara.
Both the witnesses have narrated the entire prosecution
version. Further PW4 who had resiled from his earlier
statement because of the fear adhered to his version that
all the accused were known to him and came there on the
spot. He has also stated that Ambika Prasad and Krishanpal
were apprehended on the spot. Mr. Jain learned senior
counsel for accused Ram Chander has pointed out that
evidence of PW5 Karan Singh is inconsistent because he has
deposed that he became unconscious immediately after
receiving the injuries and yet he told the police that
accused persons ran away towards the East after the
occurrence. He has also pointed out that the witness has
shown his ignorance whether his mother (Kishan Dei) was
examined as PW10. In our view, the aforesaid insignificant
embellishments would not in any way affect his evidence and
both the courts, therefore, rightly relied upon the evidence
of the injured witnesses.
Now, we would deal with the next contention of learned
senior counsel, Mr. Jain appearing for accused Ram Chander
who allegedly used fire arm and caused the death of Virender
Singh, that he is not named in the FIR and, therefore, the
evidence of eye-witnesses should not be relied upon. This
contention requires to be rejected because the eye-witnesses
were knowing him (Ram Chander) and was a known wrestler,
working in the police department. His identity was
mentioned in the FIR as moohbola brother of Ram Adhar
Pehalwan and whose ears have been damaged. All the
witnesses namely PW4, PW5, PW7 have identified him, and
there was no reason for them to falsely implicate him. Both
the courts have rightly considered this aspect and rejected
the same. Further, in his statement under Section 313
Cr.P.C. he pleaded his alibi and has stated that he was in
police department and was a wrestler of
national/international team. As he was selected for Asiad
1982, he used to remain in Akhara for practice and that
Akhara is 8 to 9 km. from the place of occurrence. On the
day of occurrence, HC Mangat Ram and Constable Ghanshyam
were having wrestling training with him in Akhara. When he
came to know that he has been involved in this case, he
surrendered himself. He stated that DBB1 .12 bore gun
belongs to him and it was never used at the time of
incident. His plea is supported by the defence witness DW5
HC Mangat Ram. Further, the prosecution witnesses PW20
Suraj Bhan and PW31 SI Kulwant Rai have resiled from their
earlier statements and have not supported the prosecution.
This plea is also rightly rejected by both the courts. The
trial court appreciated the evidence of DW5 HC Mangat Ram.
In his cross-examination he admitted that he had not told
about the presence of accused Ram Chander in Akhara at the
relevant time to SHO or the investigating officer. He has
also admitted that practice hours were from 5.00 a.m. to
8.00 a.m. The trial court, therefore, held that as duty
hours were from 5.00 a.m. to 8.00 a.m. and as the incident
had taken place at about 10.15 a.m. there was sufficient
time for accused to be present at the place of incident.
Hence, there was no reason to disbelieve the evidence of
injured two eye-witnesses and PW4 Vikram Singh with regard
to presence of the accused at the scene of offence.
The learned senior counsel Mr. Thakur appearing for
accused Ambika Prasad and Krishanpal submitted that there
was no reason to disbelieve the plea of accused Ambika
Prasad. Ambika Prasad has stated in his statement under
Section 313 Cr.P.C. that he had purchased a plot in the
name of his brother from one Bhagwan Dass; he had built a
room on the same and that he was elected Secretary of Saroop
Nagar Welfare Association; prior to the date of incident,
Vikram Singh, Karan Singh and Virender Singh had demolished
the boundary walls of many houses with a tractor but had not
demolished each house; on 30.6.1982 at about 10.00 a.m all
these persons armed with lathis and other weapons came with
a tractor and started demolishing walls of the plots; there
was a Gurudwara consisting of one room managed by Santa
Singh which had also a boundary wall; the complainant party
with their tractor demolished one boundary wall of the said
Gurudwara, so various people protested and started throwing
stones. Complainant party also started beating him and at
that stage someone from the crowd fired, which hit Virender.
He fell down on the spot. After riots in the year 1982,
said Gurudwara was razed to ground. From the aforesaid plea
of the accused, the learned counsel submitted that the
complainant party went for cultivating the fields is
absolute false because there was no land which could be
cultivated. In our view, this additional submission taken
by the counsel is without any basis. Further in any set of
circumstance Pratap Singh was the owner of more than 24
bighas of agricultural land, out of which agreement was only
for sale of 2 bighas of land. Therefore, remaining land
could be presumed to be cultivable one. As such, it has not
been pointed out at any stage by the defence that there was
no other land which was cultivable. The learned counsel Mr.
Thakur further submitted that as complainant party was
demolishing the wall of Gurudwara, various people protested
and started throwing stones and at that stage someone from
the crowd fired, which hit Virender. In our view, this
defence version is totally baseless. On this aspect, the
trial court rightly observed that no person whose boundary
wall was demolished has been examined and that no evidence
was forthcoming from any person from Gurudwara that boundary
wall of Gurudwara was demolished. Further, there is no
reason to believe the defence version that somebody from the
crowd fired which hit Virender Singh. Hence, it is
difficult to believe the plea of Ambika Prasad that
complainant party was aggressor and they came on the spot to
demolish the construction made by the accused and other
persons. There is nothing on record to indicate that
complainant party was armed with any weapons. As against
this, accused were armed with deadly weapons namely fire
arm, jaili, ballam (spear) and lathis. Injuries caused to
the complainant party were more serious while minor injuries
were caused to accused Ambika Prasad and Krishanpal as
deposed by PW2 Dr. P.K. Sakondia. The learned counsel,
Mr. Thakur also submitted that there was no reason or rhyme
for non- examining the Patwari, who was cited as a witness
and was given up by the prosecution. In our view, with
regard to the incident examination of patwari is not
material. What was agreed to be sold as deposed by the
witnesses was only 2 bighas out of 24 bighas of agricultural
land. Hence, the contention of the learned counsel for the
appellant that complainant party came there on the spot to
demolish the construction and they were aggressors is
without any foundation and substance.
In the result, no interference is called for in the
aforementioned appeals. Accordingly, Criminal Appeal
No.1152 of 1997 filed by Ambika Prasad and Krishan Pal Singh
is dismissed, their bail-bonds are cancelled and they are
directed to surrender forthwith to undergo their remaining
sentences; Criminal Appeal No.1153 of 1997 filed by Ram
Chander and Criminal Appeal No.1154 of 1997 filed by
Rajinder Singh are also dismissed.