KASHIRAMversusSTATE OF M.P.

                                    KASHIRAM                                         A
                                          v.
                                  STATE OF M.P.

-                              OCTOBER 16, 1998

               [M. K. MUKHERJEE AND M. SRINIVASAN, JJ.]                              B

         Indian Penal Code, 1860 :

          Sections 302 and 324-Conviction under-Validity of-Accused firing
    gun shots-Murder-Bullet injuries to witnesses-Consistent testimony of C
    prosecution witnesses-Fact of witnesses sustaining the injuries established-
    Absence of medical evidence therefore inconsequential-Circumstance
    disproving plea of Alibi by appellant-Conviction of and sentence imposed
    on appellant held valid.

          The appellant, along with six co-accused, was prosecuted under sections    D
    147, 148, 302 read with sections 149 and 307/149 of the Indian Penal Code,
    1860. The prosecution story was that on 29.12.1986 the accused persons
    formed an unlawful assembly; committed murder of one G and caused gun
    injuries to four prosecution vvitnesses. The prosecution witnesses were
    consistent in their version that the appellant fired the gun after taking it     E
    from a co-accused, R. S(PW-1) said to have been working in the field heard
    sounds of screaming and wailing; saw a bullock cart carrying the dead body
    of G. He reported tht matter to the police.

         The Trial Court acquitted all the accused. On appeal by the State, the
    High Court confirmed the acquittal of four accused but convicted and sentenced   F
    the appellant and R under sections 302 and 324. The appellant preferred
    appeal before this Court while the other accused R has not approached this
    Court.

          On behalf of the appellant not only alibi was pleaded but also it was
    contended that (i) no doctor has been examined to prove the alleged injuries     G
    of eye witnesses; and (ii) the evidence of prosecution witness was full of
    discrepancies.

         Dismissing the appeal, this Court

         HELD: 1. The High Court was justified in reversing the judgment of          H
                                         337
    338                       SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A acquittal passed by the trial court and convicting the appellant under section
    302 as well as section 324 IPC. The sentences awarded by the High Court
    are quite appropriate and there is no warrant to interfere with the same.
                                                               (341-H; 342-A)

          2. There are several circumstances which disprove the case of alibi.
                                                                                     -
B   There was no consistency in the suggestions made to prosecution witnesses
    when they were cross-examined. A suggestion was made to PW-2 that he             .
    himself and the members of his group attacked the appellant and his driv.er.
    This could be only on the basis that the appellant was present at the spot.
    There was no suggestion to PW-13 that the llppellant was not present there.
C   When the appellant was questioned under section 313 Cr. PC he did not say
    that he was not present at the spot. All his answers were mere denials of
    the evidence put to him. (341-8-C)

          3. The evidence of eye witnesses is consistent and excepting minor
    discrepancies which are natural due to frailty of human memory, nothing has
D   been pointed out for discrediting their evidence. All the five witnesses have
    categorically spoken about the presence of the appellant on the spot and his
    firing the gun after taking it from R. In the facts and circumstances of the
    case, there is no difficulty in rejecting the version of the appellant that he
    was not present on the scene of occurrence at the relevant time. The matters
E   relied on by the counsel for the appellant in support of his contention that
    the evidence of the prosecution witnesses is unacceptable are not of much
    significance or sufficient importance to negative the reliability of the
    prosecution witnesses. (340-D-E; 341-G)

          4. The argument that no doctor has been examined to prove the injuries
F   of the witnesses is without any substance. Nothing has been elicited in the
    cross-examination to enable the court to discard their version of having
    suffered injuries. [340-E-F)

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 57
    of 1997.
G
         From the Judgment and Order dated 14.11.96 of the Madhya Pradesh
    High Court in Crl. A. No. 158 of 1992.

          A. Shashank and Shakeel Ahmed for the Appellant.

H         Anoop G. Choudhary, Uma Nath Singh and Prashant Kumar for the
                  KASHIRAM 11. STATE OF M.P. [SRINIVASAN, J.]                 339
    Respondent.                                                                      A
         The Judgment of the Court was delivered by

          SRINIVASAN, J. The appellant and six other persons stood prosecuted
    for offences under Ss. 147, 148, 302 read with 149 and 307/149. They were        B
    acquitted by the Additional District Judge, Narisinghgarh, Distt. Rajgarh
    (Byara), M.P. State. On appeal, the High Court confirmed the acquittal of five
    persons but reversed the Judgment of the trial Judge with reference to the
    appellant and another by name Ram Singh. The appellant was convicted for
    offences under Ss. 302 and 324 IPC and sentenced to imprisonment for life
    u/s 302 and imprisonment for four months and a fine of Rs. 1000/- u/s 324.       C
    We are not concerned with the other accused as he has not come to this
    Court.

          2. The case of the prosecution is shortly as follows : There was prior
    enmity between the accused persons on the one side and Gorelal and others        D
    on the other. The accused persons formed an unlawful assembly and on
    29.12.86 at about 2 P.M. committed the murder of Gorelal in the jungle of
    Padiliya Khadi. Ram Singh and the appellant shot the deceased with a gun.
    They caused gun shot injuries to Nanakram, Deochand, Beni Singh and
    Ramesh in the attempt to murder them. Nanak Ram became unconscious.
    Sewa Ram (PW!) was working in is field when he saw a bullock cart coming         E
    from forest side. On hearing sounds of screaming and wailing, he went to the
•   cart and found the dead body of Gorelal. He was informed by Hiralal s/o
    Ramratan that the appellant, his brother Bhanwaria, Amritlal, Daryhao Singh,
    Kailash, Ram Singh and Pappu Killed Gorelal in Chhapra and that Ram Singh
    and the appellant fired guns at Gorelal. He was also informed that the others    F
    sustained bullet-injuries. Thereafter Sevaram went to the police Station at
    Kotra and reported the matter at 5.50 P.M., the same day. The report was
    recorded. J.S. Tomar (PW 19), SHO registered offences u/ss 147, 148, 302, 307
    read with 149 vide Crime No. 148/86.

                                                                                     G
          3. After investigation the accused persons were prosecuted. They denied
    the charges and pleaded false implication. They also pleaded that the
    complainant party caused damage to their tractor. After trial, the trial Judge
    acquitted all the accused. On appeal by the State, the High Court reversed
    the judgment as regards the appellant and Ram Singh and convicted them
    while confirming the acquittal of the rest of the accur.ed.                      H
    340                        SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A         4. The appellant's counsel made the following submissions:- The FIR
    was not lodged on the same day but it was done only on the next day. The
    appellant has proved alibi and he was not at the place of occurrence. No
    doctor has been examined to prove the alleged injuries of eye witnesses. Nor
    have they produced any medical certificate. The evidence of the prosecution
B   witnesses is full of discrepancies. The driver of the tractor recovered by the
    prosecution was not examined by it, and he has been examined by the
    defence. His evidence corroborated by the damage on the tractor proves
    conclusively the defence version. The Judgment of the High Court is
    perfunctory and unsustainable.

       5. Learned counsel for the State submitted that all the witnesses of the
c prosecution are consistent in stating that the appellant fired the gun after
    getting it from Ram Singh. According to him the appellant has failed to plead
    or prove alibi and DWI was not the driver of the tractor in question. He
    argued that no suggestion of alibi was put to the prosecution witnesses by
    the defence counsel. According to him the judgment of the high Court does
D   not warrant any interference.

           6. We heard counsel on both sides at length. We have perused the
    entire evidence on record. There are five eye-witnesses namely, PW2, PW12,
    PWl3, PW14 and PW15. All of them except PW2 received gun-shot injuries.
    Their evidence is consistent and excepting minor discrepancies which are
E   natural due to frailty of human memory, nothing has been pointed out for
    discrediting their evidence. All the five witnesses have categorically spoken
    to the presence of the appellant on the spot and his firing the gun after taking
    it from Ram Singh. The argument that no doctor has been examined to prove
    the injuries of the witnesses is without any substance. Nothing has been
F   elicited in the cross-examination to enable the court to discard their version
    of having suffered injuries. On the other hand, suggestions have been made
    in the cross examination as if there was a fight between the two groups at
    the spot.

          7. Though learned counsel in the beginning of the arguments attempted
G to make a point about the lodging of the FIR on the next day, he realised the
    futility thereof when it was pointed out that PWI, the Chowkidar of the village
    rushed to the Police station and gave the information to the S.O. around 5
    P.M. According to the witness, the S.O. before lodging the report went to the
    spot to make enquiry and returned much later to lodge the report. The witness
    cannot be disbelieved on that ground and the High Court has adverted to this
H   aspect of the matter.
               KASHIRAMv. STATEOFM.P. [SRINIVASAN,J.)                      341
      8. The main plank of the argument of the appellant's counsel was 'alibi'.   A
According to him the evidence of the DWs and the records produced by
DW3 prove that the appellant attended the Court of Naib Tehsildar on that
day situated about 60 to 70 kms away and the appellant could not have been
present at the place of occurrence. There are several circumstances which
disprove the case of alibi. There was no consistency in the suggestions made      B
to prosecution witnesses when they were cross-examined. A suggestion was
made to PW2 that he himself and the members of his group attacked the
appellant and his driver. The suggestion could be only on the basis that the
appellant was present at the spot. No suggestion was made to PW2 that the
appellant was not there at the time of occurrence. There was no suggestion
to PWJ3 that the appellant was not present there. When the appellant was          C
questioned under s.313, he did not say that he was not present at the spot.
All his answers were mere denials of the evidence put to him.

      9. Strong reliance is placed on the evidence of DWI who claims to be
the driver of the tractor which was found on the scene of occurrence. But the     D
number of the tractor given by him is different from the number of the tractor
seized. His entire evidence is wholly unreliable. The High Court has rightly
characterised him as got-up witness and his evidence is rejected.

       IO. The evidence of DW4 does not inspire any confidence. He claims
to have been present in the court of Naib Tehsildar along with the appellant.     E
But Ex. D-7 disproves his statement. In that case he was non-applicant and
t~e order discloses that he was not present in Court and he should be
informed of the order. DW3 who produced the records from the court ofNaib
Teshildar proves equally unreliable. His version that cases in the Court of the
Naib Tehsildar started only at 2 P.M. is too big a pill to be swallowed. He       F
could not state clearly the time at which the statements containing the
signature of the appellant were recorded. It is quite obvious that he is a
partisan witness and no reliance can be placed on his evidence.

       11. In the facts and circumstances of the case, there is no difficulty in
rejecting the version of the appellant that he was not present on the scene G
of occurrence at the relevant time. The other matters relied on by the learned
counsel for the appellant in support of his contention that the evidence of
the prosecution witnesses is unacceptable are not of much significance or
sufficient importance to negative the reliability of the prosecution witnesses.

      12. In the result we hold that the High Court was justified in reversing H
    342                        SUPREME COURT REPORTS (1998) SUPP. 2 S.C.R.

A the judgment of acquittal passed by the trial Court and convicing the appellant
    under section 302 as well as section 324 IPC. The sentences awarded by the
    High Court are quite appropriate and do not find any warrant to interfere with
    the same. The appeal fails and is dismissed.

    T.N.A                                                      Appeal dismissed.