Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 1027

SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
Kamal Prasad and Others – Appellants
Versus
The State of Madhya Pradesh (Now State of Chhattisgarh) – Respondent
Criminal Appeal No. 1578 of 2012
Decided On : 10-10-2023

Advocates appeared:
For the Appellant(s) : Mr. S. K. Verma, AOR
For the Respondent(s): Mr. Sumeer Sodhi, AOR Mr. Yash Gupta, Adv.

IMPORTANT POINTS
(1) Murder – Simply because deceased had a chequered past which constituted several run-ins with law, Courts cannot give benefit thereof to accused of committing such a person’s murder.
(2) Alibi – For plea of alibi to be established, something other than a mere ocular statement ought to have been present.

Headnote:
(A) Indian Penal Code, 1860 – Sections 148, 302 read with 149, 307 read with 149 – Explosive Substances Act, 1908 – Sections 4/5 – Murder, attempt to murder and rioting – Common object of unlawful assembly – Conviction and sentence – Courts below have concurrently found the witnesses to have deposed truthfully, their testimonies to be entirely inspiring in confidence – Deceased having sustained multiple injuries upon vital parts of body as a result of bombs being thrown at him – FIR was registered about two hours after incident having taken place – Delay in filing of FIR cannot be said to be fatal to case of prosecution – Defence witnesses do not conclusively establish plea of alibi, based on principle of preponderance of probability as their statements stand unsupported by any other corroborative evidence – For plea of alibi to be established, something other than a mere ocular statement ought to have been present – Simply because deceased had a chequered past which constituted several run-ins with law, Courts cannot give benefit thereof to accused of committing such a person’s murder – Appeal dismissed. (Paras 10, 11, 13, 14, 21, 22, 24, 25 and 26)
(B) Indian Evidence Act, 1872 – Section 11 – Alibi – This plea being taken does not lessen burden of prosecution to prove that accused was present at scene of crime and had participated therein – Such plea is only to be considered subsequent to prosecution having discharged, satisfactorily, its burden – It is required to be proved with certainty so as to completely exclude possibility of presence of accused at spot of crime – A standard of ‘strict scrutiny’ is required when such a plea is taken. (Paras 19.2 to 19.5)
Facts of the case:
Convict-appellants stand convicted of having committed an offence punishable under Sections 148, 302 read with 149, 307 read with 149, Indian Penal Code, 1860 and Sections 4/5 of Explosive Substances Act, 1908 under which the sentence awarded varies from rigorous imprisonment for 3 years to life imprisonment, all to run concurrently. This appeal calls into question the correctness of a judgment and order passed by the High Court of Chhattisgarh in Criminal Appeal No.596 of 1992 by which the guilt of the accused and sentence of imprisonment imposed in Sessions Trial No.198 of 1988 vide a judgment dated 11.05.1992 stands confirmed.
Findings of Court:
Bail granted by this Court vide order dated 1st October 2012, stands cancelled. Appellants are directed to surrender forthwith. The concerned trial court to take consequential steps.
Result : Appeal dismissed.

JUDGMENT :

SANJAY KAROL, J.

1. This appeal calls into question the correctness of a judgment and order passed by the High Court of Chhattisgarh in Criminal Appeal No. 596 of 1992 by which the guilt of the accused and the sentence of imprisonment imposed in Sessions Trial No. 198 of 1988 vide a judgment dated 11.05.1992 stands confirmed.

2. Challenging their conviction, before us are three convicts-appellants, namely, Kamal Prasad (A-3); Shersingh (A-6) and Bhavdas (A-9).

3. The convict-appellants stand convicted of having committed an offence punishable under Sections 148, 302 read with 149, 307 read with 149, Indian Penal Code, 1860¹ [for Brevity “IPC”] and Sections 4/5 of the Explosive Substance Act, 1908 under which the sentence awarded varies from rigorous imprisonment for 3 years to life imprisonment, all to run concurrently.

BACKGROUND

4. Facts, as they emerge from the judgments of the Court below are:

4.1 On 17.04.1988 one Chetram was taking his son Kapildeo @ Guddu to the hospital for treatment with one Choubisram (PW-3) as a pillion rider. Upon reaching the house of accused Darasram, 11 persons attacked them with country made bombs as also Laathis and tabbal. Chetram received multiple injuries and eventually succumbed while receiving the treatment. PW-3 escaped this attack and took shelter in the house of Baisakhu Kewat. Kapildeo, son of Chetram, who was being taken to the hospital by his father and Chaubisram, was found close to a tree near the place of occurrence alive and was taken to a Government Hospital, Palari and was shifted to D.K. Hospital, Raipur. However, in the course of treatment, he also died, same day at about 4.55 p.m.

4.2 Post-mortem examination of the body of the deceased Chetram was conducted by Dr. R.P. Pandey (PW-11) and the post-mortem examination of Kapildeo was conducted by Dr. K.L. Gopawar (PW-10). The police reached the spot of the crime at 11.15 a.m. after reading the dehatinalishi recorded at 11.00 a.m. at the instance of PW-3.

4.3 The investigation having been conducted by SI Sahid Ali (PW-19) revealing the complicity of all 11 accused persons, challan was presented before the Court concerned for trial.

5. The Trial Court, based on the evidence led by the prosecution and the accused endeavoring to establish their plea of alibi, finding the evidence led by the prosecution to be reliable; the witnesses to have established the prosecution case beyond reasonable doubt; the witnesses’ testimonies being of sterling quality and their credit, unimpeachable, convicted 9 of the 11 accused persons.

6. In an appeal preferred by the convicts, the findings of fact, reasoning adopted, and the judgment of conviction and consequent sentence imposed, stands affirmed. The High Court in the impugned judgment records as follows:

“(21) After due appreciation of these witnesses, it comes that firstly two accused persons namely Anandram and Kamal threw bombs on the deceased and thereafter the other accused persons started assaulting the deceased by lathis and tabbal while he fell down on the ground. If we examine the conduct of each accused it would appear that they had an intention to commit murder of the deceased and for that they had made preparation by forming an unlawful assembly which is evident from the series of events which took place in a sequence when firstly two accused threw bombs on the deceased and when the. Deceased fell down, all of them attack over him with deadly weapons like lathis and tabbal and caused multiple injuries to him.”

7. Counsel for the appellants contended before the High Court that since most of the witnesses were close relatives or interested witness, hence their testimonies could not be relied upon, which contention was not accepted, not only in view of the unimpeachable creditworthiness of the witnesses, fully inspiring in confidence, but also in the light of principles of law enunciated by this Court. On facts, the Court also observed that PW-3, is not a relative at all, and Khorbah