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2000 DIGILAW 772 (PAT)

Shashi Kant Singh @ Fantoosh v. State Of Bihar

2000-06-23

INDU PRABHA SINGH, N.PANDEY

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Judgment N.Pandey, J. 1. This appeal has been directed against the judgment of the 2nd Additional Sessions Judge, Nalanda at Biharsharif dated 18-8-1989 in Sessions Trial No. 165 of 1999 whereby this appellant was convicted for the offence under Secs. 302/149 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life. He was also convicted under Sec. 27 of the Arms Act but no separate sentence was awarded. Along with this appellant, two other accused were also convicted, namely, Baleshwar Prasad Singh under Sec. 302 read with Sec. 149. IPC and the other Sunil Kumar Singh under Sec. 302, IPC and Sec. 27, Arms Act. These two accused were also sentenced to undergo imprisonment for life but no separate sentence under Sec. 27 of the Arms Act was passed. 2. Three appeals, namely Cr. Appeal Nos. 360, 379 and 463 of 1990 were preferred in this Court against the impugned judgment. All these appeals were heard together and disposed of by judgment dated 12-5-1998. Appeal of appellant Baleshwar Prasad Singh (Cr. Appeal No. 360 of 1990) was allowed and his conviction and sentence were set aside whereas the remaining two appeals were dismissed. Appellant Shashikant Singh alias Fantoosh feeling aggrieved by the judgment of this Court filed Criminal. Appeal No. 452 of 1999 before the Supreme Court. In that appeal, leave was granted limited to the question as to why the judgment of the High Court should not be set aside for nonconsideration of the evidence adduced on behalf of the appellant regarding his plea of alibi. Ultimately, by order dated 19-4-1999 the appeal was disposed of with the following direction: "The only contention urged before us, insofar as the appellant is concerned, is that the evidence adduced by him in support of plea of alibi has not been considered by the High Court. Having gone through the judgment of the High Court, we are of the view that the submission made by the counsel for the appellant is well founded. In view of the above position, we consider it just and appropriate to remand the matter to the High Court to dispose of the appeal is accordance with law. " 3. Having gone through the judgment of the High Court, we are of the view that the submission made by the counsel for the appellant is well founded. In view of the above position, we consider it just and appropriate to remand the matter to the High Court to dispose of the appeal is accordance with law. " 3. In view of the above direction of the Apex Court, although we are required only to examine the plea of alibi of this appellant and the evidence adduced on his behalf in support of such plea but for the sake of convenience, we feel appropriate to notice at least the case of the prosecution as well as the defence of the accused persons. 4. The prosecution story, in brief, is that on 17-11-1988 at about 2.30 p.m. the informant Nageshwar Singh and his deceased son Manoj Kumar Singh were sitting on an along of an orchard, situated towards north of their field, to keep watch on the work of ploughing being carried out by Sarju Ram in a field, shortly at a distance of about 150 yards. In the meantime, accused Saleshwar Singh and Sushil Kumar Singh, armed with lathi, Shashi Kant Singh alias Fantoosh and Sunil Kumar Singh, armed with pistols, arrived there and surrounded the informant and his son. It is alleged that appellant Sunil Kumar Singh fired from his pistol, which hit on the back of Man of, Shashi Kant Singh also fired, which hit the right arm of the deceased, Sunil Kumar Singh thereafter opened second fire, hitting neck of the deceased. Thereafter, appellant Baleshwar Singh and Sushil Kumar Singh caught the informant and assaulted him with fists and slaps. When the villagers having heard the sound of firing, arrived there, found the deceased lying in a pool of blood. Some of the witnesses have also seen the accused persons running away from the place of occurrence with their respective weapons. 5. The informant thereafter sent Ganga Singh (PW 15) to Saksohra Police Station to inform the Officerin- charge about the occurrence. Thereafter, the Officer-in-charge, Saksohlra Police Station (PW 14) arrived at the place of occurrence and informed the Officer-incharge, Bind Police Station, as the place of occurrence was lying within his jurisdiction. Ultimately, the Officer-incharge, Bind Police Station (PW 16) arrived at the place of occurrence at about 8.30 in the evening and recorded the fardbeyan. Thereafter, the Officer-in-charge, Saksohlra Police Station (PW 14) arrived at the place of occurrence and informed the Officer-incharge, Bind Police Station, as the place of occurrence was lying within his jurisdiction. Ultimately, the Officer-incharge, Bind Police Station (PW 16) arrived at the place of occurrence at about 8.30 in the evening and recorded the fardbeyan. He had also an occasion to record the statement of the prosecution witnesses and visit the place of occurrence. He thereafter sent the deceased along with a copy of the inquest report to the doctor (PW 3) for postmortem examination. Ultimately, the Police having found a prima facie case, submitted charge - sheet, whereupon the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions, calling upon the accused - persons to face trial. 6. The defence of the accused persons, as would appear from their statements under Sec. 313 of the Code of Criminal Procedure and the trend of cross - examination of the prosecution witnesses, was total denial of the allegation. On behalf of the appellants plea of alibi was also taken to show that they were not present at the time of occurrence, as they were out of station in connection with their job and other functions. In support of such a defence, witnesses were also examined. 7. The prosecution in support of its case had examined altogether sixteen witnesses. Out of them, PW 1 Ram Prasad Singh, PW 2 Nandlal Singh, PW 4 Bivekanand Singh, PW 6 Vijay Kumar Singh, PW 7 Raj Kumar Singh, PW 9 Upendra Kumar Sinha, PW 13 Nageshwar Singh and PW 15 Ganga Singh are the material witnesses, who had supported the case of the prosecution, that the deceased Manoj Kumar Singh was done to death by firearm injuries in the orchard on 17-11-1988. PW 5 Lakhendu Prasad is a witness for inquest. PW 14 Jagarnath Pandey and PW 16 Ram Suresh Singh are the Police Officers, who had prepared the inquest report, seized different materials from the place of occurrence and submitted charge  sheet, PW 3 is Dr. Pradip Kumar Singh who had conducted autopsy of the deceased and in his opinion death was caused due to haemorrhage and shock caused by firearm. PW 8 Uma Kant Singh. PW 10 Gani Nath Singh, PW 11 Umesh Singh, and PW 12 Ashok Kumar Singh were tendered by the prosecution. Pradip Kumar Singh who had conducted autopsy of the deceased and in his opinion death was caused due to haemorrhage and shock caused by firearm. PW 8 Uma Kant Singh. PW 10 Gani Nath Singh, PW 11 Umesh Singh, and PW 12 Ashok Kumar Singh were tendered by the prosecution. 8. On behalf of the defence apart from general plea of innocence, a plea of alibi was also taken by this appellant Shashikant and the other Baleshwar Prasad Singh who has already been acquitted. In the statement under Sec. 313 of the Code of Criminal Procedure, this appellant has taken a plea that he was falsely implicated in this case. In fact he was running a canteen in the Depot of the Bihar State Road Transport Corporation at Biharsharif and was also present there at the time of the occurrence. Nine defence witnesses were also examined to support the case of the plea of alibi of these two appellants. Out of them, DW 4 Awadhesh Prasad Singh, DW 5 Naresh Lal, DW 6 Gopal Mishra, DW 7 Chhotan Ram, DW 8 Raghubansh Singh and DW 9 Brind Jyoti Prasad are the witnesses who have exclusively supported the case of appellant Shashikant that on the date and time of the occurrence, he was running a canteen in the Depot of Bihar State Road Transport Corporation at Biharsharif. DW 4 is a mechanic of the Bihar State Road Transport Corporation at Biharsharif. He has come to depose that on 17-11-1988, he had gone to the canteen of this appellant for a light refreshment and tea. He had also found this appellant present in the canteen since payment etc. for the tea was made to him. He has further said that on 31-3-1989, he had made a statement before the Jamadar of the Police and also filed an affidavit on 5-4-1989 because no Police Officer had come to him to take his evidence. 9. DW 5 Naresh Lalis also a motor mechanic of the Bihar State Road Transport Corporation at Biharsharif. He has also supported the case of appellant Shashikant that on the date and time of the occurrence he was present at his canteen. 9. DW 5 Naresh Lalis also a motor mechanic of the Bihar State Road Transport Corporation at Biharsharif. He has also supported the case of appellant Shashikant that on the date and time of the occurrence he was present at his canteen. This witness had visited the canteen for light refreshment and tea at about 3.30 p.m. He has also denied the allegation against this appellant that he had gone to his village on the date and time of the occurrence and committed murder of the deceased. This witness has also proved his affidavit marked Exhibit 1/2 filed before the Magistrate. DW 7 Chhotan Ram is a conductor working at the Biharsharif Depot of the Bihar State Road Transport Corporation. On 17-11-1988 at about 12.30 p.m. he had taken tea in the canteen of this appellant at Biharsharif. He had also sworn an affidavit to that effect marked Exhibit 1/3. He further says that almost everyday he used to go to the canteen of this appellant for refreshment. DW 8 Raghubansh Singh has come forward to State that this appellant had taken the canteen of the Bihar State Road Transport on rental basis. He has also proved several documents in support of the case of the appellant that he used to pay rental to the State Road Transport Corporation. DW 9 Brind Jyoti Prasad is an Accountant working at Biharsharif in the Depot of the State Road Transport Corporation. He has come to depose that he was the custodian of the counter-foils of the receipts issued to the rent payers. He proved several documents in proof of the fact that the canteen in question was rented out to this appellant. 10. From the documents produced on behalf of the defence, there appears no doubt that appellant Shashi Kant was running a canteen at Bihar in the Depot of the Bihar State Road Transport Corporation. Only question that remains for consideration is whether on the date and time of the occurrence, this appellant was present at his canteen. 11. It has already been noticed that the prosecution in support of its case has examined altogether 16 witnesses. Out of them PW 13 is the informant and the only eye - witness to the occurrence and had given a vivid description and the manner in which the accused persons committed the murder of the deceased with their respective weapons. 11. It has already been noticed that the prosecution in support of its case has examined altogether 16 witnesses. Out of them PW 13 is the informant and the only eye - witness to the occurrence and had given a vivid description and the manner in which the accused persons committed the murder of the deceased with their respective weapons. Allegation against appellant Shashikant is that he had also fired at the deceased causing injury on the right arm which would also be evident from the post-mortem report and the evidence of the doctor (PW 3). PWs 1. 2, 4, 6, 7 and 9 are the charge-sheet witnesses who had arrived at the place of occurrence immediately after hulla was raised and learnt the prosecution story from the informant that accused Baleshwar, Sunil. Sudhir, Sushil and Fantoosh had arrived at the place of occurrence and committed the murder in the manner as alleged in the FIR PW 2 has claimed to have seen these accused running towards the village immediately after the firing. PW 15 Ganga Singh has also deposed to the effect that about 16 months back while coming from the village, he heard the sound of firing and saw accused Sunil and this appellant running towards west. Thereafter he went to the place of occurrence and saw the dead body of Manoj. 12. On behalf of the appellant, it was contended that from a bare reference to the evidence of the Investigating Officer PW 16. it would appear that he did not record the statement of this appellant. Therefore, a complaint was made by This appellant before the Superintendent of Police. Nalanda regarding non -recording of his statement. The I.O. had also failed to record the statement of the defence witnesses who have come forward to state that on the day and time of the occurrence this appellant was present in his canteen at Biharsharif and he was falsely implicated. Therefore, keeping in view the facts and circumstances of the case, it was proper for the I.O. to verify the plea of alibi of this appellant. Because in view of specific evidence of the defence witnesses, it would not be proper to reject the plea of alibi of this appellant simply because the I.O. failed to verify. 13. Therefore, keeping in view the facts and circumstances of the case, it was proper for the I.O. to verify the plea of alibi of this appellant. Because in view of specific evidence of the defence witnesses, it would not be proper to reject the plea of alibi of this appellant simply because the I.O. failed to verify. 13. Learned counsel for the State contended that in view of the specific evidence of the informant (PW 13) that this appellant Shashikant had arrived at the place of occurrence and fired his pistol causing injury on the arm of the deceased, now it is duty of the defence to establish that the appellant on the day and time of the occurrence was present at Biharsharif and had not gone to the place of occurrence. True it is that several defence witnesses were examined in proof of the plea of alibi of this appellant that at the time of the occurrence, he was present at Biharsharif but all such witnesses appear to be interested. Because, the brother of the appellant was also an employee in the Transport Corporation. That apart, no attempt was made by the defence to get the plea of alibi verified by the police at the initial stage. 14. There cannot be any dispute that onus of proving all the ingredients of an offence is always on the prosecution and at no stage it shifts to the accused. Even in cases where the defence of the accused does not appear to be credible or is palpably false, that burden does not become any the less. It is only when this burden is discharge that it will be for the accused to explain or controvert the essential elements of the prosecution case which would negative it. But in a case when onus shifts to the accused and the evidence on his behalf probabilises the plea, he will be entitled to the benefit of a reasonable doubt. A reference in this regard can usefully be made to a decision of the Apex Court is the case of Dr. S.L. Goswami V/s. State of Madhya Pradesh. 15. But in a case when onus shifts to the accused and the evidence on his behalf probabilises the plea, he will be entitled to the benefit of a reasonable doubt. A reference in this regard can usefully be made to a decision of the Apex Court is the case of Dr. S.L. Goswami V/s. State of Madhya Pradesh. 15. In this case, true it is the plea of alibi was not verified by the police at the initial stage but it has been already noticed that on behalf of the defence a complaint was already made to the Superintendent of Police regarding the conduct of the I.O. This aspect of the matter has also been supported by the defence witnesses and, therefore, they had approached the Court and filed affidavits. Therefore, simply because the I.O. had not verified the plea of alibi of this appellant, his defence should not be rejected outright. 16. I have already noticed the evidence of DW 4 Awadesh Prasad Singh, DW 5 Naresh Lal, DW 6 Gopal Mishra, DW 7 Chhotan Ram, DW 8 Raghubansh Singh,and DW 9 Brind Jyoti Prasad, who are the employees of the Bihar State Road Transport Corporation and have come forward to support the case of this appellant that at the relevant time of occurrence, he was present at his canteen at Biharsharif. Therefore, looking to the evidence of the witnesses, a doubt certainly arises whether this appellant had actually taken part in the occurrence as alleged by the prosecution. 17. It would also be significant to note that the occurrence in this case had taken place in the year 1988 and more than 12 years have passed, therefore, this aspect of the matter would also be relevant for consideration whether in a case of such doubt about the presence of this appellant at the place of occurrence, his conviction should sustain. 18. Accordingly, for the reasons stated above, in the probable circumstances to my mind, the plea of alibi raised by this appellant appears probable and convincing as a result of which this appellant will be entitled to benefit of reasonable doubt. 19. With the aforesaid, this appeal succeeds. The order of conviction and sentence passed against appellant Shashikant Singh alias Fantoosh by the trial Court is set aside and he is directed to be released from the jail custody forthwith if not required in any other case. 19. With the aforesaid, this appeal succeeds. The order of conviction and sentence passed against appellant Shashikant Singh alias Fantoosh by the trial Court is set aside and he is directed to be released from the jail custody forthwith if not required in any other case. Indu Prabha Singh, J. 20 I agree.