CRIMINAL APPEAL NO. 99 OF 2004 (DB) With CRIMINAL APPEAL No. 3 OF 2004 (DB) ----- Against the judgment of conviction dated 19.12.2003 and order of sentence dated 22.12.2003 passed by Sri Paras Nath Sinha, Presiding Officer, Addl. Court (Fast Track),Munger in Sessions Case No. 37 of 1997 (G.R.No.572 of 1995). ----- NAWAL PRASAD @ NAWAL KUMAR SON OF LATE RAMESHWAR MAHTO RESIDENT OF VILLAGE KUSHUMBHA HALT, P.S.SHEIKHPURA,DISTRICT SHEIKHPURA -----APPELLANT (in Cr.App.No. 99 of 2004) 1. JAI KANT PRASAD SON OF DAMODAR PRASAD 2. JITENDRA PRASAD SON OF DWARIKA PRASAD BOTH RESIDENT OF VILLAGE KUSHUMBHA HALT, P.S.SHEIKHPURA,DISTRICT SHEIKHPURA -----APPELLANTS (in Cr.App.No.3 of 2004) ---- For the appellant : M/s Y.V.Giri,Sr.Advocate, Pankjesh Sharma and Deepak Kumar (in Cr.App.No.99 of 2004) For the appellants : M/s Ajay Kumar Thakur, Md.Fazal Rahman and Anisur Rahman (in Cr.App.No. 3 of 2004) For the State : Mr.Ashwini Kumar Sinha,APP (in both the appeals) ---- P R E S E N T THE HON'BLE MR.JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD ----- S.K.Sharma,J. Both the above appeals have been heard together and are being disposed of by this common judgment because they have arisen out of one judgment. 2. The above three appellants along with other three accused were put on trial. By order dated 19.12.2003 passed by Sri Paras Nath 2 Sinha, Presiding Officer, Addl.Court (Fast Track), Munger in Sessions Case No. 37 of 1997 appellant Nawal Prasad was found guilty under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act and further this appellant Nawal Prasad, Jitendra Prasad and Jai Kant Prasad were found guilty under Section 302/34 of the Indian Penal Code and 27 of the Arms Act. By the said order, three other accused namely, Nandlal Mandal, Subhash Prasad and Sujit Prasad were not found guilty under Section 302/149 of the Indian Penal Code and under Section 27 of the Arms Act, so they were acquitted of the charges and discharged from the liabilities of their bail bonds. By order dated 22.12.2003, appellant Nawal Prasad was sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code and also to pay a fine of Rs.2,000/-,in default to undergo simple imprisonment for six months. He was further sentenced to undergo rigorous imprisonment for one year under Section 27 of the Arms Act. Both the sentences were ordered to run concurrently. No separate sentence under Section 302/34 of the Indian Penal Code was 3 passed against him. Other two appellants namely, Jitendra Prasad and Jai Kant Prasad were sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and also to pay a fine of Rs.2,000/- each, in default to undergo simple imprisonment for six months. No separate sentence was passed under Section 27 of the Arms Act against these two appellants. 3. The case has resulted on account of an occurrence at 5.P.M. on 30.11.1995 with regard to land dispute in between the informant Rajendra Prasad (P.W.6) and appellant Nawal Prasad. The informant had given his written report addressed to the Officer-in-Charge, Sheikhpura alleging therein that the land under dispute was lying unfertile. On 30.11.1995 informant’s brother Surendra Kumar (deceased) was returning to his house after harvesting paddy at 5.P.M. and when he reached near the house of Sheo Shankar Prasad, suddenly co- villagers Nawal Prasad (appellant), Jai Kant Prasad (appellant), Jitendra Prasad (appellant), Nand Lal Prasad (acquitted), Sujit Prasad (acquitted) and Subhash Prasad (acquitted), all having rifles, came and at the instigation of 4 Jai Kant Prasad, Nawal Prasad fired as a result thereof, the informant’s brother Surendra Kumar fell down. On cry, the persons of nearby came and through a tractor, the informant’s injured brother was taken to Sheikhpura hospital for treatment but he was pronounced dead. The dead body was brought to police station and fardbeyan was given. The matter was investigated into and after completion of investigation, chargesheet was submitted. Cognizance was taken and after observing all paraphernalia regarding supply of police paper etc., the case was committed to the court of sessions where charges were framed and explained to the accused persons who pleaded innocence. So the trial proceeded. 4. The defence of all the accused persons was of false implication on account of land dispute. The defence of appellant Nawal Prasad was that he being Assistant Engineer was posted at Daltonganj and was discharging his official duty there on the date of occurrence and hence he has been falsely implicated. The defence has denied the allegation and according to its version on the date of occurrence at about 3.P.M. Shambhu Kumar (P.W.1), Indradeo 5 Prasad (P.W.2), both having rifles, and Devendra Kumar armed with pistol came and under the influence of liquor started abusing Rameshwar Prasad, father of appellant Nawal Prasad and stating that they would not allow him to harvest paddy. In the meanwhile, informant’s brother Surendra Kuamr (deceased) was coming in the lane. Suddenly, scuffle started and in course of scuffle, a shot was fired from the pistol of Devendra Prasad causing injury to Surendra Prasad who later on died. 5. In order to prove its case the prosecution has examined altogether 8 witnesses namely, P.W.1 Shambhu Kumar, P.W.2 Indradeo Prasad, P.W.3 Rabindra Kumar Singh alias Debendra Prasad, P.W.4 Ishwar Prasad, P.W.5 Dr.Wahab Uddin, P.W.6 Rajendra Prasad (informant), P.W.7 Ajai Kumar and P.W.8 Abdul Hafiz. The prosecution has also exhibited the post mortem report as Ext.1, wrtten report (F.I.R.) as Ext.2, signature on the protest petition as Ext.3, inquest report as Ext.4, seizure list as Ext.5, certified copy of judgment dated 22.1.2002 of G.R.Case No. 411 of 1993 as Ext.6 and certified copy of judgment 6 dated 6.2.2002 in G.R.Case no. 56 of 1995 as Ext.6/1. 6. The defence has examined witnesses. They are Ranbir Kumar D.W.1, Ambika Prasad Singh D.W.2, Mahendra Bind D.W.3, Chhotan Bind D.W.4, Bishnu Kumar Mishra D.W.5, Ram Awadhesh Mahto D.W.6, and Raj Kumar Prasad D.W.7. Besides oral evidences, the defence has exhibited signature of Chhotan Mahto on affidavit as Ext.Ka, signature of Nandlal Prasad on attendance register as Ext Ka/2, signature of Lalan Kunwar on attendance register as Ext.Ka/3, the writing and signature of Nawal Kumar on Budget file as Ext.Kha, signature of Banaras Prasad, Administrative Officer and Harihar Baitha, Secretary on personal file of Nawal Kumar as Ext.kha/1, signature of Harihar Baitha on the attendance register as Ext.Ga, signature of Raj Kumar Prasad on affidavit as Ext.Gha, affidavits of Chotan Mahto, Jagdish Prasad and Mahendra Bind as Exts. Gha/1 to Gha/3 respectively, certified copy of final report dated 19.9.1993 of Sheikhpura P.S.Case No. 213 of 1993 as Ext.Cha, certified copy of final report of Sheikhpura P.S.Case No. 26 of 1995 (G.R.56 of 7 1995) as Ext.Cha/1 and certified copy of order dated 1.7.1995 in Case no. 288 of 1994 under Section 107 of the Code of Criminal Procedure as Ext. Cha/2. 7. The trial court after scrutinizing oral and documentary evidences and after perusal of the entire materials came to the conclusion that these appellants were guilty and accordingly they were convicted and sentenced whereas other three accused namely, Nand Lal Prasad, Sujit Prasad and Subhash Prasad were not found guilty and they were acquitted as mentioned above. 8. This Court has to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 9. P.W.5 (Dr.Wahab Uddin) has conducted the post mortem examined over the dead body of the deceased at 2.P.M. on 1.12.1995 and has found one lacerated circular wound ½” in diameter x chest cavity deep on right 7th Intercoastal space on right side chest and auxiliary line with inverted margin of wound and edge blackened. On dissection: abdominal cavity 8 was filled with blood and blood clot. Liver was found torn, extra vascation of blood found in mesentery. One bullet found lodged in Viiith thoraces vertebra with fracture laceration of its spinal cord. One bullet removed sealed, signed and handed over to the police. The death, according to the opinion of the doctor, was due to shock and haemorrhage as a result of fire arm injury which was from a distance of less than three feets. Time elapsed since death within 24 hours. From the evidence of the doctor, the prosecution has been able to prove that the death of Surendra Kumar was caused due to use of fire arm as per time and date given by the prosecution. 10. The prosecution has examined P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 (informant) as eye witnesses and they are named in the first information report as such. Out of them, the most important witness of the case is informant P.W.6. 11. According to evidence of P.W.6, he was on the road in village Kushumbha at about 5.P.M. on 30.11.1995. His brother Surendra Kumar (deceased) was in his way to his home and as 9 soon as he reached near the house of Shiv Shankar Prasad, all the accused persons encircled him. The accused persons were armed with rifles and at the behest of Jai Kant Prasad, firing was made by appellant Nawal Prasad which hit the right chest of Surendra Kumar who fell down. His further evidence is that after occurrence, the injured was carried to Sheikhpura hospital for treatment through a tractor but the doctor pronounced him dead. Thereafter on that very tractor the dead body of Surendra Kumar was brought to Sheikhpura Police Station where written information (Ext.2) was given. This witness has stated that the land dispute pending since last three to four years was the cause of occurrence. The informant has been supported by P.W.1 Shambhu Kumar, P.W.2 Indradeo Prasad, P.W.3 Ravindra Kumar alias Devendra Prasad and P.W.4 Ishwar Prasad. The defence has made a number of queries to the informant to discredit his testimony but he has supported his version that he saw the accused persons towards east at about 5 to 6 feets but he could not get time to raise alarm. This witness has stated that only one persons 10 exhorted and all the accused persons came running toward his brother and thereafter firing was made. The defence has put some question as to which of the appellant was taking position at which place at the time of occurrence but this witness has not been able to explain it. Learned counsel for the appellants has stated that the informant and other witnesses being interested have fabricated the version and so the informant was not able to explain that as to which of the accused was standing at which place at the time of occurrence. 12. At the time of occurrence, according to prosecution version, many persons were present at the place of occurrence. If a family member were chased and shot at, then it is very difficult for a witness to confine himself to watch as to which person is standing at which place. So, the position of the accused persons could not be fixed. If the victim and the witnesses are not stating about the particular standing position of the accused persons at the time of occurrence, it cannot be said that there is variation or contradiction in the prosecution version of the present case about the manner in 11 which Surendra Kumar was shot dead. 13. Another contention of the defence is that the informant P.W.6 is Muharrir working at Sheikhpura Court and as such he was not present during occurrence at the place of occurrence and on his return from court a fabricated and false written report (Ext.2) after bringing the officer-in-charge in his collusion was prepared. P.W.6 has denied that he had gone within his house at the alleged time of occurrence, rather his evidence is that he was on the road at the time of occurrence. P.W.6 has stated before the Investigating Officer that he had gone to the court and was returning at the time of occurrence. The Investigating Officer has not stated this fact but this itself is not a ground to disbelieve about the presence of P.W.6 at the place of occurrence. 14. P.W.1 is son of the informant. His presence at the place of occurrence is natural. Similarly, other witnesses are residents of same village and their presence at the time of occurrence was in normal course. The family members were present near their houses. At the time of occurrence, the evening has set in and 12 in the rural areas, the villagers return to their houses earlier. It was month of November. 5 P.M. in the end of November is a time when the sun either starts setting in or sets in. The villagers in general try to come to their houses before the sun set. So the presence of the witnesses near their houses is in normal course and their presence at the place of occurrence cannot be disbelieved. 15. Manner of occurrence has been challenged by the learned counsel for the defence and it has been submitted that the story given by the defence witnesses is a natural story and probable one. 16. Regarding manner of occurrence, P.W.1 in paragraph 8, P.W.2 in paragraph 10, P.W.4 in paragraph 8 and the informant P.W.6 have stated that the accused persons came and at the behest of one accused firing was made by another accused. There is no other version of the occurrence. The defence witnesses have tried to give the probable explanation. The occurrence is not in dispute. The defence version has been brought through depositions of the defence witnesses. D.W.1 in paragraph 1 and other 13 witnesses also have stated that Indradeo Prasad (P.W.2), Inglesh Prasad alias Ishwar Prasad (P.W.4) were armed with rifles and Rabindra Kumar alias Devendra Prasad (P.W.3) was armed with pistol. All these persons were in drunken state in the Gali and were talking to harvest the paddy crops of Rameshwar Mahto. In the meantime, the informant’s brother Surendra Kumar came in the said Gali. He was followed by his nephew Shambhu Prasad. There Shambhu Prasad was pullng his uncle Surendra Kumar towards north whereas Devendra Prasad was pulling him towards south and in the meantime due to firing of Devendra Prasad, Surendra Kumar sustained injury and died. This defence version was put to P.W.2 in paragraph 10, P.W.4 in paragraph 8 and P.W.6 in paragraph 17 and it has been vehemently argued on behalf of the appellants that due to firing resorted to by one of the members of the prosecution party, the death has occurred and due to admitted enmity, the appellants were falsely implicated. 17. Though during trial, the defence has examined seven witnesses to support its version that due to firing of one of the members 14 of prosecution party, the death has occurred but none of the defence witness was examined before the Police in course of investigation. Their defence has come at belated stage through the affidavits sworn before the Notary Public and the same were filed in court and for the first time, and the defence witnesses have stated that they have sworn the affidavits. By bringing defence witnesses, the accused persons have tried to make a hole in the prosecution version but in view of the consistent evidence of the prosecution witnesses regarding murder by use of fire arm, the prosecution has been able to prove its case that the death was on account of use of fire arm by appellant Nawal Prasad. This fact has been supported by the doctor. The prosecution has to prove its own case and it cannot rely upon the witness of defence. It cannot take the benefit of absurdities in the defence version. The settled principle of law is that the prosecution has to prove its case beyond the shadow of all reasonable doubts against accused persons. The defence has only to bring some contradictions in the prosecution version. If the prosecution succeeds in proving 15 its case on each score, then only the order of conviction can be passed and if the prosecution fails to prove its case beyond the shadow of all reasonable doubts, then its case has to fail. On this legal foundation, the evidence of the witnesses that the death was on account of use of fire arm by the appellant Nawal Prasad has been proved as there is consistent evidence of the eye witnesses supported by the doctor. The prosecution has been able to establish its case that the death was on account of firing by one of the accused Nawal Prasad. 18. Appellant Nawal Prasad has taken the plea of alibi. It has been submitted that at the time of occurrence appellant Nawal Prasad was posted as Assistant Engineer at Daltonganj. The Investigating Officer had gone there and verified the plea of alibi and found that Nawal Prasad was on duty at Daltonganj at the time of occurrence. In this connection, learned counsel appearing for appellant Nawal Prasad has submitted that the plea of alibi has been proved by unimpeachable evidence. So the entire story of prosecution has become doubtful. He further submits that appellant Nawal Prasad is only 16 earning member of the family and the prosecution has taken the benefit of death of Surendra Prasad to implicate Nawal Prasad so that the entire family of Nawal Prasad may ruin. The plea of alibi of Nawal Prasad has been proved by D.W.6, a Typist from Daltonganj. This witness has stated that Nawal Prasad was available on 30.11.1995 in the office of Executive Engineer, Irrigation Department, Daltonganj. This witness has brought budget register from the Executive Engineer, Daltonganj which, according to him, remains in his custody. Submission of learned counsel appearing on behalf of appellant Nawal Prasad is that in view of this unimpeachable document, the plea of alibi should be accepted and this appellant should be acquitted of the charge. Once the charge against this appellant Nawal Prasad fails, then the entire evidence becomes doubtful and all the appellants would be entitled to be acquitted. 19. Learned counsel appearing for the appellants has placed reliance on the judgment reported in A.I.R. 1993 S.C.319 (Dharam Singh and others Vrs.The State of Punjab) and it has 17 been submitted that if the presence of accused at the place of incident is doubtful, then the veracity of the witnesses becomes doubtful. Relying upon another judgment reported in (2004) 4 S.C.C. 158 (Zahira Habibulla H.Sheikh and another .Vrs.State of Gujarat and others), it has been submitted that if the court was not willing to accept the plea of alibi then it should have taken its own steps because the judiciary has its duty to see that the justice is done. Learned counsel further relying upon the judgment report in A.I.R.1976 S.C.966 (Partap.Vrs. The State of Uttar Pradesh) it has been submitted that in view of sufficient circumstantial evidence that Nawal Prasad was on duty on the date of occurrence and as such, the entire version of the prosecution becomes doubtful. Appellant Nawal Prasad is a Government servant and his plea of alibi cannot be fabricated. So it has been submitted that in view of principle laid down in A.I.R. 1984 S.C.454 (Purna and another.Vs.State of U.P.), appellant Nawal Prasad should be acquitted. It has been further argued that the court has to rely upon the evidence of the witnesses, so the 18 benefit of doubt should be given to the accused persons in view of the judgment reported in A.I.R. 1974 S.C.1871 (State of Hariyana.Vs.Gurdial Singh and another). 20. The plea of alibi postulates the physical impossibility of the presence of the accused at the place of the occurrence by reason of his presence elsewhere. It is to be raised at the earliest moment. The plea can 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 of crime. Alibi is based upon the theory that the fact of presence elsewhere is essentially inconsistent with the presence of the accused at the place and time of the occurrence. So his participation becomes impossible. 21. Strict proof is required to prove the plea of alibi and the entire burden is on the accused. The accused must bring the strict proof of impossibility of his/her absence at the place of occurrence. If a plea of alibi is set up, then it must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person 19 concerned during the occurrence. This must be proved by contemporaneous document and other unimpeachable evidence. A fool-proof of alibi is no doubt the most effective answer to the charge but false plea of alibi is very dangerous and it has possibility of rebounding. 22. According to Section 103 of the Indian Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. It is not for the prosecution to prove the absence of the accused. It is absolutely on the person who takes the plea. 23. In the present case, it has come on the record that Harihar Baitha was the Secretary, Jagadish Prasad was also Assistant Engineer and Banaras Prasad Singh was Administrative Officer at the relevant time in Irrigation Department, Daltonganj where appellant Nawal Prasad was working but the record has been proved through a Typist. For the first time on 14.12.1995, petition was given to Superintendent of Police on behalf of appellant 20 Nawal Prasad that on the date of occurrence he was available at Daltonganj and was discharging his duty but it appears that the plea of alibi was taken at belated stage and it has not been proved because no competent authority had authorized the person who has proved the plea of alibi in the court. The plea of alibi stands in quite contradiction with the ocular evidence of the witnesses who have consistently stated that it was Nawal Prasad only who had fired causing death of Surendra Kumar. Eye witnesses are consistent on this score though they have been cross-examined in detail but their evidences are quite consistent about firing by Nawal Prasad which caused death of Surendra Kumar. 24. It has been argued on behalf of the appellants that in view of admitted enmity, the prosecution witnesses had motive to distort the prosecution version and as such they have succeeded in distorting the occurrence and in that way they have implicated the accused persons. The enmity of eye witnesses with the accused cannot be a ground to reject their testimony outright. Right care and caution is to be adopted while scrutinizing their 21 testimony. However, mere existence of enmity, particularly, when it is alleged as motive of the crime, cannot be made basis of discarding the testimony of eye witnesses. If their depositions are consistent, convincing and trustworthy, then in those circumstances, such witnesses are tested through cross-examination. In this case, there is no dispute that informant and the accused persons were on inimical term but the witnesses deposing in the case have deposed themselves as eye witnesses and they are quite consistent that the offence was committed in their presence. They have been corroborated by each other, so their depositions are consistent. Independent witnesses might have been there but evidence of independent witness is not to be accepted even if it is false, improbable and absurd. Examination of any independent witness raises the presumption of truthfulness. What is vital, it is the testimony not the witness. The availability of independent witness in all the circumstances is not possible. If offence is committed in presence of the family members, then independent witness would not be there. Not only that, independent 22 witnesses feel shy to take side of two warring sides. They want to protect themselves. In the present case, independent persons have not been examined