Kamal Prasad & Ors vs State of Madhya Pradesh

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

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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- [Cr. A No.1578 OF 2012]
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.
4. Facts, as they emerge from the judgments of the Court below
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”
3- [Cr. A No.1578 OF 2012]
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
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
4- [Cr. A No.1578 OF 2012]
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
5- [Cr. A No.1578 OF 2012]
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.
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.
6- [Cr. A No.1578 OF 2012]
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
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.
7- [Cr. A No.1578 OF 2012]
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
8- [Cr. A No.1578 OF 2012]
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.
11- [Cr. A No.1578 OF 2012]
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
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;
12- [Cr. A No.1578 OF 2012]
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
13- [Cr. A No.1578 OF 2012]
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
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.
14- [Cr. A No.1578 OF 2012]
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
15- [Cr. A No.1578 OF 2012]
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
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,
16- [Cr. A No.1578 OF 2012]
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.
Date : 10 October, 2023;
Place : New Delhi. 


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