Deciding Authority : Supreme Court
Date of Judgement : 25/01/2000
Bench : G.B. Pattanaik & Umesh C. Banerje
Facts : 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.
Judgement : 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. 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.
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. 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 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. 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. 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.
Held : Appeal Dismissed .
By Tejasv Anand , IV th Year , AMITY LAW SCHOOL DELHI .
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