Kamal Prasad & Ors vs State of Madhya Pradesh

2023INSC895

1- [Cr. A No.1578 OF 2012]

REPORTABLE

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1578 OF 2012

KAMAL PRASAD & ORS. …APPELLANT(S)

Versus

THE STATE OF MADHYA PRADESH

(NOW STATE OF CHHATTISGARH) …RESPONDENT(S)

J U D G M E N T

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.

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2. Challenging their conviction, before us are three convict(s) -

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 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

1 For Brevity, “IPC”

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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 (PW19) 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

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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

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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 Khorbahrin Bai (PW-16)

although is a relative of the deceased but is not a close relative.

Also, even though PW-17 is the wife of the deceased, nothing

elicited prompting her testimony to be unbelievable.

THE PRESENT APPEAL

8. Before us, the aforesaid convict-appellants have assailed the

impugned judgment on four fronts- (a) Inordinate delay in filing of

the First Information Report (F.I.R.) (Ex.15) introduces to the case,

the possibility of improvements thereby casting doubt on the

version of the prosecution; (b) the testimonies of the witnesses of

the prosecution being contradictory, hence unreliable; (c) the

deceased being a history-sheeter, having numerous cases pending

against him, hence equal probability that someone other than the

convict(s)-appellant(s) favouring and wanting, his elimination;

and (d) that the accused persons were, in fact, not at the scene of

the crime and their plea of alibi is probable.

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9. The case of the prosecution rests primarily on the

testimonies of three witnesses, namely, Choubisram PW-3;

Khorbahrin Bai PW-16 and Jugbai PW-17.

10. Here only we may record that the Courts below have

concurrently found the witnesses to have deposed truthfully, their

testimonies to be entirely inspiring in confidence.

11. Further that the death of the deceased Chetram and

Kapildeo is undisputed, with medical and scientific evidence

including the post-mortem reports conducted by two doctors

referred to supra (PW-10 and PW-11), confirm such fact. Deceased

Chetram having sustained multiple injuries upon vital parts of the

body as a result of the bombs being thrown at him also stands

proved.

12. It is also a matter of record that PW-3 had sustained

lacerated wounds the causation of which could well have been the

country made bombs used in the commission of offence. Such fact

is evident from the medical opinion of Dr. Ghanshyam (PW-20)

who conducted his medical examination.

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13. Before proceeding to the four contentions advanced, firstly it

would be necessary for us to appreciate the principles of law in

respect of delay in registration of FIR as evolved over time.

13.1 This Court in Apren Joseph v. State of Kerala2,

has observed that “Undue unreasonable delay in lodging

the FIR”, “inevitably gives rise to suspicion which puts the

Court on guard to look for the possible motive and the

explanation for the delay and consider its effect on the

trustworthiness or otherwise of the prosecution version.”

The Bench of three learned Judges further observed that

no time duration, in the abstract could be fixed as the

‘reasonable time’ to give information to the police and

therefore, the same is a question to be determined as per

facts and circumstances of each case.

13.2 Further, referring to Ram Jag v. State of U.P.

3, this

Court in State of M.P. v. Ratan Singh4 observed that

Courts when faced with the question of delay in

registration of FIR are duty-bound to determine whether

2 (1973) 3 SCC 114

3 (1974) 4 SCC 201

4 (2020) 12 SCC 630

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the explanation afforded is plausible enough based on the

given facts and circumstances of each case.

13.3 This Court recently in Bhagwan Singh v. Dilip

Singh alias Depak & Anr5 has observed that if the

prosecution attempts to ‘improvise its case stage by stage

and step by step’ during the intervening period, it would

be open for the accused to contend that the delay was fatal

to the proceedings and the same was done to ‘stave off

proceedings against the accused’.

14. In respect of the first contention put forth by the convictappellants it is seen from the record that the FIR was registered

about two hours after the incident having taken place on

17.04.1988 at about 08.00 a.m. The document itself records the

time of incident as being 8.15 a.m. and the time of report as being

11.00 a.m. The testimony of PW-3 at whose instance the FIR was

recorded, shows that out of fear and having sustained numerous

injuries, he ran from the place of occurrence and hid in the house

of Baisakhu Kewat and only emerged therefrom two hours later.

5 2023 SCC OnLine 1059

9- [Cr. A No.1578 OF 2012]

In such a situation, delay in filing of the FIR cannot be said to be

fatal to the case of the prosecution more so in view of the injuries

sustained by him; the place of occurrence being a remote village

area and that the version of events was dictated to the police by

this witness only upon their reaching his place of shelter. To us it

does not appear to be a case of prior consultation; discussion;

deliberation or improvements.

15. Relevant portion of the testimony of PW-3 reads as under:-

“After 2 hours someone opened the door and I came out

from the place where I was hiding. Public had assembled

there. But I cannot tell the names of those persons who

had assembled. Because I was badly injured and I was

feeling immense pain. My left eye which was perfectly

alright before this incident, was completely damaged in

this incident. Thereafter I dictated report of this incident

to the station House Officer at the house of Baisakhu.

First information report was read over to witness and he

stated that this is the same report which I had dictated.

First information report marked Ex. P15.”

16. Significantly, this part of his testimony goes unrefuted. Even

a suggestion of such statement being false was not given by any

one of the accused in cross-examination. Having perused the

same and also the cross-examination forming part of the record,

we do not find anything emanating therefrom which would

10- [Cr. A No.1578 OF 2012]

credibly suggest that the time gap between the occurrence of

incidence and registration of the FIR is unjustified.

17. Resultantly, the first contention of the convict appellants

must necessarily be answered in the negative.

18. Another defence taken by the convict-appellants is that of

the plea of alibi. This Court in Binay Kumar Singh v. State of

Bihar6 has noted the principle as:

“23. The Latin word alibi means “elsewhere” and that word is

used for convenience when an accused takes recourse to a

defence line that when the occurrence took place he was so

far away from the place of occurrence that it is extremely

improbable that he would have participated in the crime.”

19. The principles regarding the plea of alibi, as can be

appreciated from the various decisions7 of this Court, are:

19.1 It is not part of the General Exceptions under the

IPC and is instead a rule of evidence under Section

11 of the Indian Evidence Act, 1872.

6 (1997) 1 SCC 283

7 Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Binay Kumar Singh (supra)

Jitender Kumar v. State of Haryana (2012) 6 SCC 204; Vijay Pal v. State (Govt. of NCT of

Delhi) (2015) 4 SCC 749; Darshan Singh v. State of Punjab (2016) 3 SCC 37; Mukesh v. State

(NCT of Delhi) (2016) 6 SCC 1; Pappu Tiwari v. State of Jharkhand 2022 SCC OnLine

SC 109.

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19.2 This plea being taken does not lessen the burden of

the prosecution to prove that the accused was

present at the scene of the crime and had

participated therein.

19.3 Such plea is only to be considered subsequent to the

prosecution having discharged, satisfactorily, its

burden.

19.4 The burden to establish the plea is on the person

taking such a plea. The same must be achieved by

leading cogent and satisfactory evidence.

19.5 It is required to be proved with certainty so as to

completely exclude the possibility of the presence of

the accused at the spot of the crime. In other words,

a standard of ‘strict scrutiny’ is required when such

a plea is taken.

20. We notice that the defendants have laid certain evidence

attempting to indicate their presence being at a place other than

the spot of commission of the offence. The statements of four

witnesses, namely, Sonchand DW-1; Jageshwar Prasad DW-2;

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Ramadheen DW-3; and Parsu Das DW-4 form part of record.

However, DW-3 testifies to the whereabouts of accused Sandas

and DW-4 does so for accused Anand Ram, both of whom the

present case does not concern as the appellants before us are

Kamal Prasad (A-3), Shersingh (A-6) and Bhavdas (A-9). The two

relevant defence witnesses for the convict-appellants before us,

are as under:-

20.1 DW-1 states that A-9 is his uncle and had come to

his house to go to Sandi Bazar. When the police came to

arrest him he mentioned to them that he had just been

returning from Bhalesur and did not have any relation

with the offence. He was arrested by the police.

20.2 DW-2 submitted that on the day of the offence, A-9

went to the shop run by him at Bhalesur to purchase some

tea and jaggery. The distance between Bhalesur and

Sundri is 16 Kilometres.

21. In our considered view, both these defence witnesses do not

conclusively establish the plea of alibi, based on the principle of

preponderance of probability as their statements stand

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unsupported by any other corroborative evidence. Not only that,

no reason stands explained in such testimony for A-9 having

travelled from Bhalesur to Sundri in order to go to Sandi Bazar.

It is a matter of record that A-9 is a resident of Bhalesur where he

resided with his family. He owned farms in Sundri. The family of

A-9 was not examined to substantiate the claim of such travel.

For those reasons, we cannot believe the version testified to by

DW-1 and DW-2. We also cannot ignore that all 3 primary

witnesses of the prosecution i.e., PW-3, PW-16, and PW-17 have

categorically deposed the presence of the convict-appellants at the

spot of the crime and such a statement could not be shaken in

cross-examination.

22. We find that for the plea of alibi to be established, something

other than a mere ocular statement ought to have been present.

After all, the prosecution has relied on the statement of

eyewitnesses to establish its case against the convict-appellants

leading to the unrefuted conclusion that convict-appellants were

present on the spot of the crime and had indeed caused injuries

unto the deceased as also PW-3 with Lathis and Tabbal on various

and vital parts of their bodies.

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23. As we have hitherto observed, the prosecution case relies

primarily on 3 witnesses whom, the Courts below have believed

without exception. It is next urged that there are contradictions in

the testimonies of three witnesses, hence, it would neither be

appropriate nor safe to place reliance thereon. Having perused the

same, we find them to be coherent on material facts such as the

presence of the accused on the spot of the crime; the death of

Chetram; a blast having taken place; and the accused being the

assailants. A perusal thereof reveals PW3 to have categorically

deposed that Kamal (A3) threw a bomb on him and deceased

Chetram. He also stated the other two accused Shersingh (A6) and

Bhavdas (A9) were also present at that time. PW16 has named all

three accused persons, attributing upon them the act of hitting the

deceased with shovels and lathis and further stated that accused

Kamal hurled abuses at the said witness and the others present

alongside, prompting them to run away from that place. She,

however, does not ascribe particular roles to any of the accused as

to who had hit the deceased with a lathi or who did so with a

showel. Jugbai PW-17 deposed that the three accused before us,

as well as others had lathis and shovels with them and they had

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challenged her presence there forcing her to run away. She stated

that she along with others had witnessed the incident from near

the house of one Samaru and that she had seen the accused

beating the deceased. Therefore, we find no force in the contention

that the testimonies relied on by the prosecution are inherently

contradictory.

24. It may be true that the deceased Chetram was a historysheeter and had scores of criminal cases pending against him or

cases in which he was involved. However, such fact is

unsubstantiated on record for no detail whatsoever stands

provided in respect of such cases involving the deceased. Be that

as it may, simply because the deceased had a chequered past

which constituted several run-ins with the law, Courts cannot give

benefit thereof, particularly when such claims are bald assertions,

to those accused of committing such a person’s murder. And in

any event, such a plea is merely presumptuous.

25. In conclusion, we find that the charges levied against the

accused, i.e., under Sections 148, 302 read with 149, 307 read

with 149, IPC, and Sections 4/5 of the Explosive Substance Act,

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1908, and the sentence corresponding thereto as awarded by the

Trial Court and confirmed by the High Court, do not warrant

interference of this Court. It may also be observed that the

sentences awarded are in no manner excessive or

disproportionate to the crimes for which the convict-appellants

stand convicted.

26. The appeal, therefore, fails and is accordingly dismissed.

27. The bail granted by this Court vide order dated 1st October

2012, stands cancelled. The appellants are directed to surrender

forthwith. The concerned trial court to take consequential steps.

28. Pending Interlocutory application(s), if any, shall stand

disposed of.

 ……………………J.

(ABHAY S. OKA)

…..……………….J.

 (SANJAY KAROL)

Date : 10 October, 2023;

Place : New Delhi.