KAMAL PRASAD & ORS.versusTHE STATE OF MADHYA PRADESH (NOW STATE OF CHHATTISGARH)

                 [2023] 13 S.C.R. 810 : 2023 INSC 895



                            CASE DETAILS

                      KAMAL PRASAD & ORS.
                                     v.
     THE STATE OF MADHYA PRADESH (NOW STATE OF
                   CHHATTISGARH)
                  (Criminal Appeal No. 1578 of 2012)
                          OCTOBER 10, 2023
          [ABHAY S. OKA AND SANJAY KAROL, JJ.]
                             HEADNOTES
     Issue for consideration: Case of the prosecution rested primarily
on the testimonies of three witnesses, conviction of the appellants for
offence punishable u/ss.148, 302 r/w 149, 307 r/w 149, IPC and ss.4/5
of the Explosive Substance Act, 1908 and the consequent sentence
imposed, if justified.
     Evidence – Testimonies of eyewitnesses – Reliance upon:
       Held: Death of the deceased ‘C’ and his son ‘K’ is undisputed
– Deceased ‘C’ having sustained multiple injuries upon vital parts
of the body as a result of the bombs being thrown at him also stands
proved – Testimonies of three witnesses is coherent on material facts
such as the presence of the accused on the spot of the crime; the death
of the deceased; a blast having taken place; and the accused being the
assailants – No force in the contention that the testimonies relied on by
the prosecution are inherently contradictory – Further, on facts, delay in
filing of the FIR cannot be said to be fatal – Present is not a case of prior
consultation; discussion; deliberation or improvements – Furthermore,
defence witnesses do not conclusively establish the plea of alibi, based
on the principle of preponderance of probability as their statements
stand unsupported by any other corroborative evidence – For the plea
of alibi to be established, something other than a mere ocular statement
ought to have been present – All 3 primary witnesses of the prosecution
i.e., PW-3, PW-16, and PW-17 have categorically deposed the presence
of the appellants at the spot of the crime and such a statement could
                                    810
   KAMAL PRASAD & ORS. v. THE STATE OF MADHYA PRADESH                   811
             (NOW STATE OF CHHATTISGARH)


not be shaken in cross-examination – Also, the plea of the appellants
that the deceased ‘C’ was a history-sheeter and had scores of criminal
cases pending against him and thus, probably someone other than the
appellants would have wanted his elimination, is unsubstantiated as no
details were provided in respect of such cases involving the deceased –
Simply because the deceased had a chequered past constituting several
run-ins with the law, Courts cannot give benefit thereof to those accused
of committing such a person’s murder, particularly when such claims are
bald assertions – Charges levied against the accused and the sentence
as awarded by the Courts below not interfered with – Bail granted to
the appellants stands cancelled, to surrender – Indian Penal Code, 1860
– ss.149, 307 r/w 149 – Explosive Substance Act, 1908 – ss.4/5. [Paras
11, 14, 21-25, 27]
     Evidence – Plea of alibi – Principles regarding:
      Held: It is not part of the General Exceptions under the IPC and
is instead a rule of evidence u/s.11, Evidence Act, 1872 – 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 – Such plea is only to be considered subsequent to the prosecution
having discharged, satisfactorily, its burden – Burden to establish the plea
is on the person taking such a plea by leading cogent and satisfactory
evidence – A standard of ‘strict scrutiny’ is required when such a plea
is taken – Evidence Act, 1872 – s.11. [Para 19.1-19.5]
     Criminal Law – Delay in registration of FIR – Principles of
law – Discussed.

       LIST OF CITATIONS AND OTHER REFERENCES

      Apren Joseph v. State of Kerala (1973) 3 SCC 114 : 1973 [2] SCR
16; State of M.P. v. Ratan Singh (2020) 12 SCC 630; Bhagwan Singh v.
Dilip Singh alias Depak & Anr. 2023 SCC OnLine 1059; Binay Kumar
Singh v. State of Bihar (1997) 1 SCC 283 : 1996 [8] Suppl. SCR 22 –
relied on.
      Ram Jag v. State of U.P (1974) 4 SCC 201 : 1974 [3] SCR 9 –
referred to.
812            SUPREME COURT REPORTS                    [2023] 13 S.C.R.



        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1578 of 2012.
    From the Judgment and Order dated 19.10.2010 of the High Court of
Chhattisgarh at Bilaspur, Chhattisgarh in Criminal Appeal No. 596 of 1992.
       Appearances:
    Abhishek Vikas, Anshuman Shrivastava, Abhijeet Shrivastava,
Abhishek Sharma, S. K. Verma, Advs. for the Appellants.
       Sumeer Sodhi, Yash Gupta, Advs. for the Respondent.

        JUDGMENT / ORDER OF THE SUPREME COURT

                              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 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


1
      For Brevity, “IPC”
   KAMAL PRASAD & ORS. v. THE STATE OF MADHYA PRADESH                     813
     (NOW STATE OF CHHATTISGARH) [SANJAY KAROL, J.]


     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
814         SUPREME COURT REPORTS                      [2023] 13 S.C.R.


      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 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.
      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.
    KAMAL PRASAD & ORS. v. THE STATE OF MADHYA PRADESH                   815
      (NOW STATE OF CHHATTISGARH) [SANJAY KAROL, J.]


      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.
      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
the explanation afforded is plausible enough based on the given facts and
circumstances of each case.


2
     (1973) 3 SCC 114
3
     (1974) 4 SCC 201
4
     (2020) 12 SCC 630
816           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


      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 convict-appellants
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. 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


5
      2023 SCC OnLine 1059
    KAMAL PRASAD & ORS. v. THE STATE OF MADHYA PRADESH                            817
      (NOW STATE OF CHHATTISGARH) [SANJAY KAROL, J.]


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 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.
     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.


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.
818          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


      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; 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 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.
   KAMAL PRASAD & ORS. v. THE STATE OF MADHYA PRADESH                     819
     (NOW STATE OF CHHATTISGARH) [SANJAY KAROL, J.]


      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.
      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 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 history-sheeter
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
820            SUPREME COURT REPORTS                         [2023] 13 S.C.R.


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, 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.




Headnotes prepared by:                                          Appeal dismissed.
Divya Pandey