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2010 DIGILAW 169 (MP)

SUBHASH s/o SANTOSH GAWDE v. STATE OF M. P.

2010-02-09

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT : S. K. SETH, J. 1. Appellant/accused has preferred this appeal against the conviction and sentence handed down by the 13th Additional Sessions Judge, Indore in S.T. No. 176/1993. As against the charges under sections 148 and 302 or 302 read with 149 and 307, Indian Penal Code framed against him, trial Court found him guilty of offences punishable under sections 148 and 302 of the Indian Penal Code and sentenced him to life imprisonment under section 302 with a fine of Rs. 1000/- with default stipulation and one year RI under section 148, Indian Penal Code. Other co-accused have been acquitted of all the charges framed against them except Anil brother of appellant, who was ordered to face trial in the Juvenile Court by virtue of this Court order passed in Criminal Revision No. 333/94 dated 31-10-1995. 2. Appellant Subhash along with 4 other co-accused was brought before the Court to stand trial for having committed murder of Praveen on 11-1-1992 at about 4.30 a.m. in the morning in the M. Y. Hospital Indore. Appellant abjured his guilt and took the plea of alibi and examined two defense witnesses in support of that plea. 3. Prosecution case as opened out before the trial Court was that on 10-1-1992 appellant and his associates had a fight with Praveen who sustained knife injury. He lodged the FIR (Ex.P-7) at PS Chatripura, Indore and as he was in serious condition he was referred to M. Y. Hospital for treatment. He was examined by Dr. Prakash Kiyawat (PW-6) who found a stabbed wound, and issued admission card Ex.P-11. Praveen was admitted in the M. Y. Hospital Indore, the bed Head Ticket is Ex.P-13 wherein a stabbed wound over left side of the back was mentioned. His wife Alpana (PW1) and Jaiyantrao (PW8) brother of the deceased, stayed back in the Hospital to look after him. As stated earlier, appellant, his brother Anil and other co-accused persons armed with deadly weapons came in the early part of the morning and finished off Praveen in the Hospital and when Jaiyantrao (PW8) rushed to the rescue of the Praveen, also sustained injures, and then the accused ran away. On the date of incident Ram Sahai Mehra (PW4) Head Constable was posted at the Police out-post of M.Y. Hospital Indore. On the date of incident Ram Sahai Mehra (PW4) Head Constable was posted at the Police out-post of M.Y. Hospital Indore. On the information of ward-boy, Head Constable made entry in the Rojnamcha Ex.P-4A and at the instance of injured eye-witness Jaiyantrao (PW8), Head Constable recorded the Dehati Nalishi Ex.P.5 on the basis whereof FIR Ex.P-20 was recorded by ASI M. M. Khan (PW11). Dr. Raj Kumar Singh (PW13) performed the autopsy and his report is Ex.P-22. After completion of investigation charge-sheet was filed and after trial the learned Judge pronounced the judgment under appeal. 4. We have heard rival submissions and perused the evidence that has come on record. Learned Counsel for appellant submitted that no case is made against the appellant and he was entitled to acquittal whereas learned State counsel supported the judgment and submitted that there is no merit in the appeal and it deserves dismissal. 5. Prosecution examined number of witnesses. On scrutiny of prosecution evidence, following incriminating facts emerge against the appellant. I. FIR Ex.P-7 incident of 10-1-1992 where Praveen received a knife injury in the fight with the appellant and his associates; II. Admission of Praveen on 10-1-1992 in the M.Y. Hospital for treatment of grievous injury; III. Examination of Praveen by Dr. Kiyawat (PW6) who noticed a knife injury over left side of back; IV. Eye-witness account of wife Alpna (PW1) and brother Jaiyantrao (PW8) who stood well the fire of cross-examination; V. Seizure and recovery of Driving License of the appellant from the scene of crime by Head Constable (PW4). It is a public document and used as one of the mode to establish identity of a person. It is also pertinent to mention that though a suggestion was put to Alpana (PW1) in cross-examination about missing driving License and lodging of report, but interestingly, when question No. 77 was put to the appellant while recording his statement under section 313, Criminal Procedure Code his answer was and offers no explanation. This further bolsters, prosecution case about the appellants presence at the scene of incident in the M.Y. Hospital. It is settled law that the result of the examination under section 313, Criminal Procedure Code may be beneficial to accused but it may equally be injurious to him; VI. As per Post-mortem report Ex. P-22 of Dr. This further bolsters, prosecution case about the appellants presence at the scene of incident in the M.Y. Hospital. It is settled law that the result of the examination under section 313, Criminal Procedure Code may be beneficial to accused but it may equally be injurious to him; VI. As per Post-mortem report Ex. P-22 of Dr. R. K. Singh (PW13) deceased met with a homicidal death because of anti-mortem injuries which were sufficient in the ordinary course of nature to cause death by sharp and deadly weapons. VII. Although learned trial Judge has not found the appellant guilty of offence punishable under section 307, Indian Penal Code, the evidence of Dr. Joshi is impeccable to establish presence of injured eye-witness Jaiyantrao at the time of incident because of post treatment in the Hospital. VIII. Plea of alibi and defense witnesses examined by the appellant found unworthy of reliance by the trial Judge, effect thereof. 6. We are aware that throughout the web of criminal law one golden thread is always to be seen, that is the duty of prosecution to prove the prisoner's guilt subject to defense of insanity or any other statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the prisoner is part of well established criminal jurisprudence and no attempt to whittle it down can be entertained. Per Lord Chancellor, Lord Sankey in Woolmington vs. Director, Public Prosecution, (1935) AC 462. 7. But the position with regard to plea of alibi is slightly different. The plea of alibi postulates the physical impossibility of the presence of the accused at scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. It is also well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. See AIR 1984 SC 63 . It is also well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. See AIR 1984 SC 63 . Whenever a defense of alibi is set up and that defense utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was, but in all probability he was where the prosecution says he was. The result is when the plea of alibi which is likened to a bubble is successfully pricked, it rebounds on him who has taken it, which while smashing his defense strengthens the prosecution case. 8. In the light of these principles we now examine the evidence of Santosh S/o Radhelal (DW-1) and Suresh S/o Namdev (DW-2). Santosh (DW-1) has this to say; that on 10-1-1992 he accompanied his friend, the appellant to Aurangabad (15 hours distance by road from Indore) perhaps for some religious ceremony and returned on 12-1-1992 by road. It is to be noted that this witness who was examined after 8 years vividly remembers the date but not the occasion for the visit, thus making his evidence suspect. Normal human nature totally excludes possibility of remembering dates except for special reasons. For such special reasons we look in vain at the testimony of DW1. It may also be added that a witness for alibi could be easily got up and his evidence has to be very strictly and critically examined. As stated above evidence of D.W.1 is not only unconvincing but wholly suspect. 9. Coming to Suresh s/o Namdev (DW-2) second and last alibi witness, he produces an invitation Ex.D-3 "Ratjga" for 11-1-1992. He further states that he remembers the date only because of the said invitation. His evidence is also very suspect for the reasons (1) that he produced the said invitation without any call from any one; (2) Such invitations can be produced or manufactured at any time to make out a case; (3) Admittedly the appellant is brother of the son-in-law of witness. 10. It therefore seems that no credibility attaches to the two defence witnesses and the trial Court cannot be faulted for rejecting the same as worthless. 11. 10. It therefore seems that no credibility attaches to the two defence witnesses and the trial Court cannot be faulted for rejecting the same as worthless. 11. As already observed failure of plea of alibi could recoil on the head of the person and this is what must happen in this case. Thus this is another very strong and clinching link in the prosecution case. 12. It is thus clear that there is no merit in this appeal and it is accordingly dismissed. 13. Since we have found that the appellant himself caused the fatal injuries to deceased Praveen, section 148 of the Indian Penal Code remains only of academic interest and no conviction thereunder is called for with this modification this appeal fails and is hereby dismissed. 14. Appellant is on bail. He is directed to surrender before the trial Court for undergoing the remainder part of sentence on 25-3-2010. On failure of appellant to surrender before the trial Court on the given date the trial Court is directed to take suitable action under the law under intimation to this Court. 15. Office is directed to send a copy of this judgment along with original record to the trial Court.