1997 Supreme(Del) 299

High Court Of Delhi
AMBIKA PRASAD - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 45 of 1992
Decided On : 03/21/1997

Headnote:Penal Code, 1860 - Section 302/307/341/34 — Murder — Attempt to murder — Wrongful restraint — Common intention — Dispute between victims/sellers and accused/purchasers — Restraint order in favor of victim party — Victims returning home — Intercepted and surrounded by accused holding ballam, Jaili, lathis and armed with gun — Exhorted — Gun shot fired on deceased — Two accused caught at spot and group clash — Suffered injuries — Respective roles — Eye-witnesses — Real brothers — Testimony of corroborative evidence — PW under tear turned hostile — Trial court convicted and awarded life sentence with tines — Appealed against — Pleaded delay in recording FIR, witnesses close relations of deceased — Weapon of offence not recovered — Motive — Alibi — Non-appearance of PWs — Effect of — PWs feared — Appeals, fail and dismissed — Conviction upheld.

       Held:

       Delay : Because of these facts and there being a satisfactory Explanationn for delay in recording the statements of the two eye witnesses, as discussed above, we do not find that any assistance can be taken by the learned counsel for the appellants.

       Another fact to be noted in this connection is that the request for conducting post mortem on the body of Virender Singh was sent by the I.O. vide Ex.PW-3/B. This appears to have been received at the hospital at 2.15 P.M. on 30.6.82 as per endorsement contained on that document. This document was accompanied with 13 papers which included an inquest report as well as a copy of the statement of Vikram Singh which is the nikka or the basis of the FIR in this case. This again leaves no scope for any padding of the case by the police, thereforee, this cannot be said that any prejudice has been caused to the accused persons on account of delay in sending the special report to the concerned Magistrate. There is no merit in this point in the facts of the present case and the same is hereby rejected.

       NON-APPEARANCE OK PW-Effect of — He (investigation officer) was trying to help the accused — Cannot be permitted to hold the prosecution to ransom by his deliberate acts.

       We do not feel that the prosecution case should be thrown over-board merely on account of this default on the part of the investigating officer which we are constrained to observe, appears to be deliberate in order to help the accused persons. Nothing else was suggested to indicate how the defense suffered on account of non-production of the investigating officer as a witness. In the facts of the case we find no merit in this argument.

       RESPECTIVE ROLES — Names of all the accused Along with their respective roles finds mentioned in the statement.

       Coming to the facts of the present case, it has to be noted that the entire case against the accused persons is unfolded in the statement of Vikram Singh which was recorded soon after the incident and which formed the basts of the FIR. The same version of the crime has been repeated by the other eye witnesses, which has been the prosecution case throughout. Names of all the accused along with their respective roles find mention in the said statement of Vikram Singh.

       Not recording substance of FIR — Effect of — No compliance not prejudicted the accused persons

       We are of the view that non-compliance of this requirement has not in any way prejudiced the accused persons in the facts of the present case and, thereforee, for this lapse on the part of the prosecution the prosecution case cannot be allowed to fail. Thus in the facts of the present case, failure to record substance of the FIR in the Daily Diary cannot be said to be fatal to the prosecution case.

       TESTIMONY OF CLOSE RELATIONS — Natural witnesses — Best persons to give an eye-witness account of the incident.

       Thus he was also undoubtedly present at the spot. All these three witnesses are thus natural witnesses of the crime. They were present on the spot, they were involved in the incident, they suffered injuries in the incident and thus are the best persons to give an eye witness account of the incident. The land dispute between the parties was the motive for the incident. Admittedly Ambika Prasud Accused was the secretary of the society which was claiming to be the purchaser of the disputed land. That is why the statement of Karan Singh PW-5 appears to be natural when he stated that all the accused present in court came from the side of house of Ambika Prasad, accused. He further stated that the accused surrounded them. Then he goes on to give the role of each of the accused in the incident.

       WEAPON OF OFFENCE — Non-recovery of effect — Not necessary for acquittal where there is ample evidence on record.

       Failure to recover the weapon of offence need not necessarily result in acquittal of an accused when there is other overwhelming evidence on record establishing his guilt. The offence in this case was committed in broad day light, i.e., about 10.30 A.M. on 30th June, 1982 when summer is at its peak. It is committed in open fields. The question about identity of the accused and about his role in the incident does not admit of any doubts even if the gun which was recovered at the instance of the accused was not used in the crime. There is ample evidence on record to establish the guilt of accused Ram Chander.

       PRESENCE OF MOTIVE — Burden of proof on accused - Effect of non-proving — Not a SINE QUA NON for conviction.

       Presence of motive is not a sine qua non for conviction of an accused.

       ALIBI — ONUS TO PROVE ON ACCUSED — Burden who raises plea.

       Accused Rajinder was a member of the accused party. He is said to be wielding a ballam in his hands. The plea of alibi has been raised on his behalf. The burden of proof for such a plea lies on the person who raises it.

       His presence at the scene of occurrence has been established by overwhelming evidence which we have no reason whatsoever to doubt. These accused have failed to lead any reliable evidence regarding this plea when the onus was squarely upon them in this behalf.

       COMMON INTENTION — Exhortation — Land Disputes between sellers-purchasers — Accused ran away together — Respective roles — Intention — Meeting of mind — Restraining the victims — Testimony of witnesses — Corroborative evidence of — Real/Natural witnesses

       From this statement it is clear that all the accused persons came together armed with weapons. They surrounded the victim party meaning thereby that they did not leave any scope for any of the victims to escape, he has gone on to say that after being surrounded they started giving beating to them. Respective roles by the accused persons have been detailed. He has further stated in cross-examination that after the occurrence the accused persons had run away towards the east which shows that the accused persons ran away together. These facts have to be seen in the background of the evidence that there was a land dispute, the members of the accused party were purchasers of the disputed land while the victims party were the sellers. The victim party had injunction in their favor from the competent court restraining any construction on the disputed land. Still some construction had been raised. In this context the accused party had tried to suggest to the prosecution witnesses in their cross-examination that the victim party were trying to demolish this construction with the help of their tractor. However, they did not lead any evidence in support of this. The further fact cannot be overlooked that the victim party did not have any weapons nor any weapons were recovered from the site. This clearly establishes that the accused party wee the aggressors. They came together and started the attack on the victim party. One of them was armed with a gun which he fired and the shot killed one of the members of the victim party. They fled from the scene together. The common intention is clearly spelled out. Common intention has to be judged on the basis of the facts and events of the incident which unfold themselves on the record. The evidence of a prior meeting of minds, i.e., sitting together or holding a conference will be hard to get in most of the cases. It has to be inferred from the actions of the accused party and the facts and events which took place. We are satisfied about the existence of common intention on the part of the appellants and we find no difficulty in upholding the convictions with the aid of the Section 34 IPC.