Important Point
When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence.

Headnote:(i) Evidence Act, 1872-Circumstantial evidence-Appreciation of-Principles-Prosecution bound to establish circumstances from which conclusion drawn-Fully proved-SHO leaving alongwith co-accused police officials on getting information that Maruti Van speeding up with criminals - And indiscriminately firing-Police party returned to police station with three dead bodies and damaged Maruti Van-Bodies having bullet marks and blood marks on Van-SHO made case of firing by occupants of Maruti Van-No bullet mark on Police Vehicle-Seizure of two country made pistols and cartridges-Ballistic report showed pistols not in working order-Cartridges not fired from them-There has been good deal of fabrication and manipulation in distorting and destroying evidence-Shows culpability of SHO.
       Held : In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. (Para 9)
       Non-explanation of the members of the police party indicating the circumstances under which three people were killed is an additional link in the chain of circumstances completing the chain to indicate that three people were killed on account of firing by the police party. In this connection it would be appropriate to notice that the post mortem examination held by P.W. 1 through the post mortem reports Exhibit 1 series as well as the oral evidence of P.W. 1 and his findings unequivocally indicates that the police party resorted to firing at the three deceased persons from a very close range. This also runs counter to the defence case that it is an encounter in which the police personnel resorted to firing when the occupants of the Maruti Van started firing at the police personnel. In addition to all these circumstances unerringly pointing to the fact that three people were killed on account of firing from the police party, the conduct and behaviour of Dudh Nath Ram in taking away the Station Diary Book from the Police Station, which was made available only on 9.12.1993, which is also established from the evidence of P.W. 58 and the conclusion of the High Court that there has been a good deal of fabrication and manipulation in distorting and destroying the evidence from the very beginning goes a long way to establish the culpability of accused Dudh Nath Ram. (Para 10)
       (ii) Evidence Act, 1872-Plea of alibi-For the accused to establish plea by positive evidence-Murder case-Accused taking plea of his presence elsewhere - Witnesses deposing presence of accused at Police Station-No attempt made to call for and prove Station Diary-Prayer made during course of argument rejected by trial Court-Prayer rightly rejected-In absence of materials plea of alibi cannot be sustained.
       Held : When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence. Under Section 11 of the Evidence Act collateral facts having no connection with the main fact except by way of disproving any material fact, proved or asserted can be admitted in evidence. In other words the facts proved as such which make the existence of the fact so highly improbable as to justify the inference that it never existed, but such fact has to be established by the person who takes the plea. (Para 12)
       (iii) Criminal Procedure Code, 1973-Sections 366, 378 and 386 -Murder case-Death sentence-Confirmation by High Court-Death of three persons occurred not from revolvers used by SHO but on account of firing from rifles used by constables - Prosecution evidence established fact that firing taken place from very close rang-Would not by itself make out case to be a rarest of rare cases justifying extreme penalty of death.
       Held : The death of three persons occurred not from the firing from revolvers held by Dudh Nath Ram and Victor but on account of firing from the 303 rifles held by the three Constables. It is true that the prosecution evidence establishes the fact that firing has taken place from a very close range but that by itself would not make out the case to be a rarest of rare cases justifying the extreme penalty of death. (Para 14)
       (iv) Indian Penal Code, 1860-Section 34-Murder case-Common intention-SHO leaving alongwith co-accused Police Officials on getting information that Maruti Van speeding up with criminals and indiscriminatory firing-Officers armed with revolvers-Constables with rifles-Three persons killed-No provocation from other side-Van stationary-Firing from close range on Maruti Van-Death occurred on account of receiving shots from rifles used by constables-Common intention developed at very place-Police officials equally liable as the three constables. (Paras 11 & 12)

Judgment

Pattanaik, J.-These five appeals are directed against the judgment dated 28.11.1997, of the Patna High Court passed in Criminal Appeal No. 459 of 1996 and Death Reference No. 5 of 1996. All the accused appellants are police officials. All of them were convicted under Section 302/34 IPC and were directed to be hanged till they are dead by the learned Additional Session Judge, Gaya. Accused appellant Dudh Nath Ram, in addition, was convicted under Section 201 IPC but no separate sentence was awarded. The High Court, on appeal, being preferred by the accused persons and reference being made for confirmation of death sentence under Section 366 of the Criminal Procedure Code affirmed the conviction of all the accused appellants under Section 302/34, but on the question of sentence while the High Court affirmed the death sentence awarded against Dudh Nath Ram-appellant in Crl. Appeal No. 218 of 1998, Brijlala Prasad Sinha-appellant in Crl. Appeal No. 149 of 1998, and Victor Fedles-appellant in Crl. Appeal No. 279 of 1998, commuted the death sentence as against accused Dinesh Singh, Deo Narain Ram, Jaikaran Yadav and sentenced them to undergo imprisonment for life, who are the appellants in Criminal Appeal Nos. 280-82 of 1998. The main ground for giving sentence of imprisonment for life as against the aforesaid three appellants is that they were merely the constables and obeyed the commands of their superior officers and, as such their case would not come within the test laid down by this Court to bring it as a rarest of rare case.

2. Broadly stated the prosecution case sought to be established through different witnesses is that accused Dudh Nath Ram was the Station House Officer of Bharachatti Police Station in the State of Bihar. On the early morning of 5th of December 1993 while Dudh Nath was taking tea Jaikaran informed that a Maruti Van has been speeding up with criminals and there has been indiscriminate firing from the said Maruti vehicle. On getting this information the accused Police Officials immediately left the Police Station to chase the Maruti Van. The Maruti Van, however, was forced to stop on account of a traffic jam. The chasing police officials came near the Maruti Van and started firing at the Van indiscriminately in consequence of which 3 persons from amongst the occupants of the Maruti Van were killed and their dead bodies were then removed in the Police Jeep to the Police Station. Dudh Nath then made entry in the Station Diary stating therein that as the occupants of the Maruti Van started firing at the police personnel, the police personnel resorted to firing and in course of the occurrence 3 persons were found dead. It may be stated at this stage that prosecution tried to establish a case that the accused police officers after chasing the Maruti Van and finding the van to be immobile on account of traffic jam surrounded the said van and dragged Rajesh and Khedan from the vehicle and demanded a sum of Rs. 1 lakh, but when Rajesh could not accede to the request then he and Khedan were shot dead from the close range and the driver who was sitting on the driving seat was also gunned down. This part of the prosecution case, however, could not be established as none of the prosecution witnesses unfolded this part of the prosecution case. It may be further stated that a written report was submitted to the Superintendent of Police, Gaya on 9-12-1993, alleging therein that the police officials have committed brutal murder of three persons as their demand of one lakh of rupees could not be fulfilled and on the basis of the said report Barachatti Case No. 148/93 was registered and the investigation of the said case was taken up by the C.I.D. Patna under Government Order and it is on completion of the investigation of the said case charge-sheet was submitted against the accused persons and on being committed to the Court of Sessions the accused persons stood their trial. The

Click Here to Read the rest of this document

1998 Supreme(SC) 643

Important PointWhen a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence.

Important Point
When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence.