c AMBIKA PRASAD AND ANR. v. STATE (DELHI ADMINISTRATION, DELHI) JANUARY 21, 2000 (G.B. PATTANAIK A.~ M.B. SHAH, JJ.J Criminal law : Criminal Procedure Code, 1973 : Sections 156 and 15'7–Defective investigation-Effect of-Held : It is 11ot proper to acquit the accused, despite dr:f ective investigation, if the case is otherwise established conclusively.
Section 309-Witnes.i–Examination of-Held : Should be continued D from day to day so as not to give a chance to the accused to threaten or win over the witness. Criminal Trial: Object of-Duties of Judge-Held: A Judge should not only see that E no innocent man is punished but also ensure that a guilty man does not escape.
Prosecutiort-lnvestigating Officer (10)-Non-examination of-10 did not step into the witness box without any justifiable ground-However, 10 was not a material witness for establishing whether the accused or the complainant F pany was the aggressot-Evidence of injured witnesses corroborated by medi- cal evidence-Accused had examined defence witnesses for establishing their say-Held : non-examination of 10 is no ground for discarding such evidence. Prosecutiort-lndependent witnesses–Non-examination of-Held : G Cannot be a ground for rejecting the evidence of injured witnesses. Prosecutiort-lnjured witnesse.i–Examination of-Delay in–One of them had injuries on his face with swollen mouth and could hardly speak-The other was under tremendous fear from the accused per- sons-Their evidence was convincing and reliable-Held: Mere delay in their H examination not a ground to discard their evidence.
\__ A.\rnIKA PRASAD v. STATE (DELHI ADMINISTRATION) Evidence-Appreciation of-Name of 011e of the accused not men- tioned ill FIR-However, his identity was mentioned in the FIR- All the prosPcutiun witnesses identified him and there was no reason to falsely implicate him-Held : Courts below have rightly rejected the contention that the evidence of the eyewitnesses should not be relied upon since the accused fr not named in the FIR.
Evidenc-Appreciation of-Aggressor-Detenni11ation of Record did not indicate that-Complainant paity was anned with any weapon-As against this accused persons were anned with deadly weapons-Injuries caused to complainant party more serious while minor injuries caused to two of the accused–Held : In the circumstances of the case, accused persons are C the aggressors-Pena/ Code, 1860, S. 97.
The appellants-accused were convicted for offences under Sections 302/34, 341/34 and 307/34 of the Penal Code, 1860 and sentenced to suffer imprisonment for life. The High Court confirmed the conviction and sentence. Hence this appeal.
According to the prosecution, the accused persons, armed with deadly weapons, came to the disputed plot of land being cultivated by the complainant party and fired a shot at one V who died on the spot. On behalf of the accused persons it was contended that the inves- tigating ofiicer was not examined; that two police officers resiled from their earlier statements; that the investigation was defective; that no inde· pendent witness was examined; that there was delay in the examination of two injured witnesses; that the name of one of the accused was not mentioned in the FIR; and that the complainant party was the aggressor F and not the accused persons.
Dismissing the appeal, this Court HELD : 1.1. In a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively. A G criminal trial is meant for doing justice to the accused, victim and the society so that law and order is maintained. 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. [351-A-B] SlIPREMF COURT REPORTS
Kamel Singh v. State of lvfP, [1995] 5 SCC 518; Ram Bihari Yadav v. State of Bihar, (1998] 4 SCC 517; Paras Yadav v. State of Bihar, [1999] 2 SCC 126 and State of UP v. Anil Singh, AIR (1988) SC 1998, relied on. 1.2. 1'on-examination of investigating officer, in the present case, has no bearing on the appreciation of the evidence of the injured eyewitnesses. B The police officers resiled from their own statements and deposed some- thing contrary before the court to help one of the accused persons. The investigating oflicer 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 the C prosecution witnesses whose presence on the spot is established beyond a reasonable doubt. They have suffered injuries and their evidence is cor- roborated 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 a material witness for the purpose of establishing whether the accused or the com- D plainant party was the aggressor. Nut only that, the accused has examined the defence witnesses for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for holding that the injured witnesses should not be believed. [350-B; 351-C-D] 2. The Sessions Judge ought to have followed the mandate of Section 309 of the Criminal Procedure Code, 1973 of completing the trial by examining the witnesses from day to day and not giving a chance to the accused to threaten or win over the witnesses so that they may not support the prosecution. Even if the request for adjournment of the accused was F accepted, the cross-examination ought not to have been deferred beyond two or three days.
Hence, delay in adjourning the cross-examination of a witness for more than a year is highly improper. [351-G-H; 352-A] 3. Independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close rdatives of the deceased are under constant threat and they dare not depose the 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. H In any case, if independent persons are not willing to co-operate with the AMBIKAPRASAD v. STATE (DELHIADMINISlRATION)
investigation, prosecution cannot be blamed and it cannot be a ground for A rejecting the evidence of the injured witnesses. [352-C·D] State of UP v. Anil Singh, AIR (1988) SC 1998, relied on.
4. One of the two injured witnesses was having injuries on his face and in the region of his mouth. His mouth was swollen with injuries all B around and he could hardly speak. The other injured witness stated that he was under tremendous fear from the accused persons. Their evidence is convi11cing and reliable. Hence, mere delay in examining the injured witnesses is not a ground for discarding such convincing and reliable evidence. [353-B]
Dr. Krish11a Pal v. State of UP, [1996) 7 SCC 194, relied on. 5. The eyewitnesses knew one of the accused was a known wrestler, working in the police department. His identity was mentioned in the FIR. All the prosecution witnesses have identified him and there was no reason D for them to falsely implicate him. Therefore, both the courts below have rightly considered this aspect and rejected the contention that the evidence of the eyewitnesses should not be relied upon since one of the accused is not named in the FIR. [354-B]
6. There is nothing on record to indicate that the complainant party E was armed with any weapons. As against this, accused persons were armed with deadly weapons. Injuries caused to the complainant party were more serious while minor injuries were caused to two of the accused. Hence the accused persons were the aggressors and nut the complainant party. [356-B ; 355-G]]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1152 of 1997 Etc. From the Judgment and Urger dated 21.3.97 of the Delhi High Court in Cd. A. No. 45 of 1992. D.D. Thakur, R.K. Jain, N.N. Goswamy, Arun Jaitley, K.B. Rohtagi, N.N. Bhatt, Ms. Aparna Rohtagi Jain, Mahesh Kasana, Rajesh Batra, Ajai Bhalla, Maninder Singh, L.K. Upadhyay, RX Maheshwari, Rajeev Shar- ma, Ms. Sushma Suri, K.S. Rana, Ms. Pratibha M. Singh, Hemant Sharma, Anil Katiyar and N.K. Kheterpal for the appearing parties. [2COOJ 1 S.C.R.
The Judgment of the Court was delivered by 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 B arise out of common judgment and order dated 24.3.1992 passed by the Addl. Sessions Judge, Delhi in Sessions Case No. 508/91. In all six persons namely, Ambilta Prasad (Al), Krishanpal (A2), Ram Adhar (A3), Ram Chander (A4), Shiv Raj Singh (AS), 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 C 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 Sections 302134, IPC 341/84 and 307/34 IPC.
For sentence, the trial court observed that murder appeared to be D 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 302134 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 E a sentence of four yours a fine of Rs. 100 and for the offence punishable under Section 341 read with Section 34 IPC fme 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 p 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 G 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 Y adav and over this transaction there H was dispute between the vendor and the vendees, for which civil suit was A.\1BIKAPRASAD v. STATE (DELHIADMINIS1l{ATlON) [SHAH, J.j 347 pending. A few days before ~he incident. Shiv Raj (acquittt:d accused) told A Kishan Dei (PW lO) wife of Pratap Singh that he had purchased the plot from Shri Ram (:hander and Ram Adhar accused and that he would take possession of the !and. She told him that it was a disputed :and PW 4 Vikram Singh, PWS Karan Singh and PW 7 Anirudh Singh are the s(1ns of Pratap Singh. Dt:ci:asc'd Vircnder Singh was the wn of elder brother uf Pratap Singh. For tho; assault on the complainant party and injury caus..:d to the deceased Virender Singh as well as injured witnesses, FIR was lodged by Vikram Singh (PW4) on 30.6.1982 at 12.40 p.m. It was stated that they wern owners of 24 bighas and some biswas of land towards East of G.T. road by the side of village Libaspur. For the said '.and, there was a transaction with Saroop Nagar Housing Society through Mohindcr Y adav. It was decided that on the receipt of entire consideration the possession of the land would be handed over tu the vendees. As sale consideration was not paid, they were in possession of the said land. As c
the Society started constructing houses, they filed suit and obtained stay order which was in operation till date. It was further statt:d that at about O 10 a.m., when Karan Singh, Anirudh, Virendcr Singh were returning after ploughing the land by their tractor, Amhika Prasad aiongwith hi.s wm panion Rajinder Diarywala, Ram Adhar Pchalwan and his so ca;kd _.
adopted brother (subsequently identified ds Ram Chand..:r). whos..: buth ears \Vt:re damaged and \,.rhn w:.:. kno~:.'Tl i·-· 't1l ~rr,i"1-.r::~l<l·;t c::trrl<' · ····L· :i: lhe ~ide of house uf Arnb1h'J f'rasc.rd <l;u, .. ~-.-.,-~tJ .l.
~=~ 5 nr_1i•.-"l ! 1C"S1JB~ Ra.iinder was holding a ballam (Spear), Arnhika Pra>.ad was having a lathi. Ram Adhar was equipped with jaili (rake) and his so-called adopted brother was armed with gun whereas other persons wt:re holding lathis. Ram Adhar in a loud voice gave a lalkara that nobody ~hould be spared and thdr dead bodies should be laid so that then: may nut be quarrel again. At that stage, ht: drove back the tractor towards plot of one person named Dhillon but the tractor got entrapped in a ditcli! So, all the brothers came down of the tractor and at that time Ram Chander wn::stlcr brother of Pehalwan Ram Adhar frred 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 G of PWS Karan Singh, and accused Ram Adhar and Ambika Prasad as- saulted 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 PW 8 and Rattan Singh H SllPRFMF COURT REPORTS
12cco11 s.c.R. A PWlO alongwith other persons arri"ed at the spot. He has further stated that with the help of these persons accused Ambika Prasad and Krbhanpal were overpowered and during the scuffle they sustained injuries. They were apprehended on tht: spot while they wen; trying tu run away after commit- ting the crime. It is stated that assault tuok place at about l!l.15 a.m. and B the police reached there soon after the 11ccum:nce . Two injured witnesses and two accused who were apprehended on the spot, wen: taken to Hindu Rao Hospital, Ddhi by SI Prithipal Singh of Police Control Room between 12.05 p.m. and 12.10 p.m. Thereafkr, FIR was recorded at about 12.40 a.m.
ln the pres1;;nt case, injuries to the prosecution witnesses Karan Singh and Anirudh Singh are provt:d by examining PWl 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. D PW 3 Dr. LT. Ramani conducted postmortem examination of Vin:nder Singh on 30.6.1982 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 E the accused. The occurrence at the sct:ne 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 statt:ment under Section 154 Cr.P .C. and in that sense has turned hostile.
The Court observed that n:ading his evidence F as a whole it appeared that he was under foar 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 G 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 unie~s it is pointed out that the said appreciation is unreasonable or unjustified, H there is no scope for interference in the~e appeals. Keeping that in mind, ~f
r v AMBIKAPRASAD v. STATE(DELHIADMIN!STRA110N) :srWl,J.] 349 we would decide the appeals after considering the contentions raised by A the parties. Mr. KK. Jain, learned senior counsel appearing for Ram Chander submitted that then; was no n:ason for the courts below not to accept the plea of alibi set-up by accused Ram Chandt:r, whose consistent stand was that ht: was gc:tting training for Asiad (lames throughout tlu: day ol 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 sub- mitted that evidence of PW5 Karan Singh and PW7 Anirudh Singh which is relied upon by the courts bdow for convicting the appellants suffers from many infirmities and ought nut to have been relied upon for convicting the appellants.
c Mr. D.D. Thakur, learned senior counsel appearing for Ambika D 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 ~ight injurit:s and soIIW of thrn1 Wt're grn·vum,. He submitted th<it court' E erroneously relied apon tllL pro~~c~1~iL}fi v·..: t:'iun that /\mhikit Prd~atl dnd Krishanpal receivcJ lnjmies while rhcy wen: runmng away and they wert: followed by the villagers who caused injuries. The learned counsel appear- ing on behalf of Rajinder Singh adopted the contentions raised by the learned counsel for the other accused.
In addition to the aforesaid contentions, counsd for the appellants submitted that in the present case prost:cution 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 G 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, tht:refore, presuming that investigation is intentionally or unintention- ally faulty yet that cannot be the ground for disbelieving the injured witnesses. It is his contention that invt:stigating officer might not have stepped in the witness box because Ram Chander belongs to the same H [2COOl l S.C.R.
A 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 B affected their defence. In our view, non-examination of 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 evidt:nce of SI Kulwant Rai (PW31), Inspector Suraj Bhan (PW20) observed that they resiled from their earlier recorded statements C and wanted to help accused R.un 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 D 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 Kamel Singh v. State of M.P., (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 conclusivdy because in that event it would tantamount to bt falling in the hands of erring E investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, [1998) 4 SCC 517 para 13 this Court obstrved :
" … .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 dont: 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 administra- tion 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…"
v AMBIKA PRASAD v. STA TE (DELHI ADMINISTRATION) (SHAH, J.] 351 Further, it is to be borne in mind that criminal trial is meant for doing A justice to the accused, victim and the society so that law and order is maintained. Hence, as observed by this court in State of U.P. v. Anil Singh, AIR (1988) SC 1998 it is necessary to remember that a Judge does not preside over
a criminal trial mercly 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 inves- tigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile wit- nesses cannot be a ground for discarding the evidence of PW5 and PW7 whose presence on the spot is established beyond reasonable doubt. They have snffcred 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 aggres- sor. 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 nut be bdieved.
It is also to be pointed out that PW4 Vikram Singh (informant) who had lodged FIR immediately was under constant threat and was compelled c 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- G chief of PW4 Vikram Singh was over on 6.2.1984. The counsel representing Ambika Prasad requested the court that because of his uncle's 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 H. SUPREME COURT RJ:<PORTS
[20GO] l S.C.R. A 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 th.:1t despite the fact that 20 to 2.5 persons collected at the spot at the time of incident as deposed by the prosecution B witn.:sses, not a singk independent witness has been examined and, there- fore, no relianc..: should be placed on the evidence of PW5 and PW7. This submission also deserves to be n:jeded. It is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close C 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 inde- D pendent 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 wit.'t similar contention in State uf U.P. 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 poin!t:d out th.: indifforcnt attitude of the public in the investigation of crimes. The pubiic are gcnaally reluctant to come forward to depose before the Court. :t is, therefore, not correct to reject th.: 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 witm:sses 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, G 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 prosc::cution as to why eyewitnesses had not been examined shortly after the incident and for inordinate delay in exami:ning them, by holding that it would not be a H ground to discard the convincing and reliable evidence adduced in the AMl:llKA PRASAD v. STATE (DELHI ADMINISTRATION) [SHAH, J.] 353 case. This contention is also considered by both the courts and has rightly A 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 wen: 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 arc also proved by Dr. Jogindcr Mittal, PWl. They have deposed before the court that Ram Chander was having c
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. D Accused Rajinder inflicted ballam blow and Ram Adhar inflicted jaili blow on Karan Singh. Ram Adhar also inflicted jaili blow on Anirudh Singh. lt is also stated by them that Ram Chander fired a shot from his gun which hit Virender Singh's 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 wit- nesses have narrattd the entire prosecution version. Further PW4 who had re~iled from his .:arlier statement because of the fear adhen:d to his version that all the accust:d 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 coun~el for accused Ram Chander has pointed out that evidence of PW5 Karan Singh is inconsistent because he has deposed that he became unconseious immediately after receiving the injuries and yet he told the police that accust:d 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 PW 10. In our view, the aforesaid insignificant embellishments would not in G 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 H (2000] 1 ~.C.R. A 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 B tht witnesses namely PW4, PW5, PW 7 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 C he was selected for Asiad 1982, he used to n.:main 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 DBBl D 12 bore gun belongs to him and it was never used at the time of incident. His plea is supported by 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 DW 5 HC Mangat Ram. In his cross- E examination he admitted that he had nut told about the presence of accused Ram Chander in 'Akhara' al the rdevant time tu SHO or tht: 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 F 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 Am· G bika Prasad and Krishanpal submitted that there was no reason to dis- believe 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 H Association; prior to the date of incident, Vikram Singh, Karan Singh and AMB!KAPRASAD v. STATE(DELHIADMINIS1RATION)[SHAHJ; 355
Virender Singh had demolished the boundary walls of many houses with a 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 walb 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 B 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. D 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 Gnrudwara 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 (supra) and lathis. G 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 sub- mitted 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 H (2CCOJ l S.C.R.
A view, with regard to the incident i::xamination of patwari is not matt:rial. What was agrci::d to be sold as deposed by thi:: witnesses was only 2 bighas out of 24 bighas of agricultural land. Hence, the contention of the learned counsd for the appdlant that complainant party c:ame there on the spot to demolish the construction and they were aggressors is without any founda- B tion and substance.
In the result, no interferenc;e 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 C sentences; Criminal Appeal No. 1153 of 1997 field by Ram Chander and Criminal Appeal No. 1154 of 1997 filed by Rajinder Singh arc also dis- missed.
v.s.s. Appeals dismissed.