HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved Judgment
Case :- CRIMINAL APPEAL No. - 7814 of 2006
Appellant :- Jai Govind Mishra
Respondent :- State Of U.P.
Counsel for Appellant :- Lav Srivastava,A.K. Gautam,Anand Kr. Pandey,Anand Srivastava,Apul Misra,Awadhesh Rai, J.S.Sengar, R.P.Pandey, R.R.Pandey, Rahul Saxena, Rajesh Kumar Singh, Sudhesh, Sudist, V.P. Srivastava
Counsel for Respondent :- Govt. Advocate,Ajay Srivastava
alongwith
Case :- CRIMINAL APPEAL No. - 382 of 2007
Appellant :- Jai Prakash Mishra & Others
Respondent :- State Of U.P.
Counsel for Appellant :- Anand Kumar Pandey,Apul Mishra,Atul Mishra,Jag Narayn,Lav Srivastava,R.R.Pandey,V.P. Srivastava
Counsel for Respondent :- Govt. Advocate,Ajay Srivastava
Hon'ble Surendra Vikram Singh Rathore, J.
Hon'ble Raghvendra Kumar, J.
(Per Surendra Vikram Singh Rathore, J.)
1.Criminal Appeal No.382 of 2007-Jai Prakash Mishra and others V. State has been preferred by Jai Prakash Mishra, Om Prakash Mishra, Santosh Mishra and Vinod Mishra and Criminal Appeal No.7814 of 2006 has been preferred by Jai Govind Mishra. Since both the aforesaid appeals arise out of the same judgment, therefore, the same are being disposed of by a common judgment.
2.Under challenge in these criminal appeals is the judgment and order dated 27.11.2006 passed by Additional Sessions Judge, Court No.2, Ghazipur in Sessions Trial No.530 of 2004, arising out of Case Crime No.545 of 2004, Police Station Kotwali, District Ghazipur, under Sections 147, 148, 302/149 IPC against the appellants Jai Govind Mishra, Jai Prakash Mishra, Om Prakash Mishra, Santosh Mishra and Vinod Mishra, Sessions Trial No.532 of 2004, arising out of Case Crime No.604 of 2004, Police Station Kotwali, District Ghazipur, under Section 3/25 Arms Act and Sessions Trial No.533 of 2004, arising out of Case Crime No.605 of 2004, Police Station Kotwali, District Ghazipur, under Section 3/25 Arms Act against Jai Prakash Mishra and Santosh Mishra respectively whereby all the appellants were convicted for the offence under Section 302 read with 149 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs.10,000/- each with default stipulation of one year additional rigorous imprisonment. They were further convicted for the offence under Section 148 IPC and were sentenced to undergo rigorous imprisonment for a period of two years R.I. Both the sentences were directed to run concurrently.
3.Appellants Jai Prakash Mishra and Santosh Mishra who were tried for the offence under Section 3/25 Arms Act were acquitted of the charges for the said offence. It was further directed that out of total fine amount half of the fine shall be paid to the complainant as compensation.
4.In brief, the case of the prosecution was that on 04.06.2004 the complainant Shiv Kumar Mishra who happens to be the son of the deceased Bal Govind Mishra and brother of the second deceased Raj Kumar Mishra lodged an FIR at the police station Kotwali Nagar, District Ghazipur alleging therein that on the said date at about 7.30 p.m. he alongwith his father Bal Govind Mishra and his elder brother Raj Kumar Mishra were talking with each other in the verandah of their house and at that time Bal Govind Mishra asked him to bring his notebook from the room. When the complainant went inside the room to bring the said notebook, in the meantime, the appellants Jai Govind Mishra, Jai Prakash Mishra, Om Prakash Mishra and Santosh Mishra who happens to be the first cousins of the deceased Bal Govind Mishra and Vinod who is son of appellant Jai Govind Mishra reached there. They were armed with country made pistols in their hands and on the exhortation of Jai Govind Mishra that they are litigating a lot, all the five accused persons opened fire on the father and brother of the complainant. At that time the complainant was standing in between verandah and the room and he saw the incident from the window after hearing the exhortation of the appellants. Hearing the shrieks of his father and brother and also the noise of fires one Jai Shankar Yadav also reached at the place of occurrence. All the accused persons after causing injuries to both the persons ran away from the spot. The complainant Shiv Kumar Mishra and Jai Shankar Yadav anyhow managed an Auto rickshaw and thereafter both the injured persons were taken to District Hospital, Ghazipur, but before they could reach the hospital, the father of the complainant, namely Bal Govind Mishra succumbed to the injuries. The other injured Raj Kumar Mishra was examined by the doctor of District Hospital, Ghazipur. However, he was referred for Varanasi. Thereafter the complainant made arrangement of a vehicle to take his injured brother to Varanasi. While he was taking his brother to Varanasi then he also succumbed to the injuries on the way. But before dying his elder brother told the complainant that he should always save himself from the sons of Namwar Mishra and Jai Govind Mishra otherwise you will also be killed by them. He also told the complainant that these persons have caused this incident because they were aggrieved by the suit which has been filed recently by their father against them. After the death of Raj Kumar Mishra the complainant and Jai Shankar Yadav alongwith dead body came back to Ghazipur and lodged the FIR at the police station. This FIR was lodged on the same day at 23:30 hours On the basis of this FIR the inquest proceedings of both the deceased persons took place. The place of incident was inspected, blood stained and plain earth were taken into custody by the police. Vest, lungi, underwear and Kalawa of the deceased persons which were on the dead body were sealed by the doctor who has conducted the postmortem and the same was sent to serologist for its test.
5.During investigation on 16.06.2004 at about 21:45 hours the appellants Jai Prakash Mishra and Santosh Mishra are alleged to have been apprehended by the police and on their pointing out country made pistols with cartridges are also alleged to have been recovered. However, as stated earlier, these two appellants have been acquitted in the said case under Arms Act. Admittedly no appeal challenging the said acquittal has been preferred by the State.
6.After completing the investigation, the charge-sheet was filed against the named accused persons.
7.The defence of the accused persons was of their total denial and also their false implication because of enmity.
8.On behalf of the appellant Jai Govind Mishra it was pleaded that he was not present at the relevant time at the place of incident. He was working as a driver in a Government Department and on the relevant date, he was on his duty. The appellant Vinod Mishra has also pleaded his alibi and he has stated in his statement under Section 313 Cr.P.C. that he was working in vanasthali Rajasthan on the alleged date of incident.
9.The case of the defence was that the deceased Bal Govind Mishra was recently retired from the post of Sub Inspector of police. During his service period he had taken money from several persons and when he failed to provide any help to those persons then such persons, feeling aggrieved, have caused this incident and only because of the enmity the appellants have been falsely implicated in the instant case.
10.In order to prove its case the prosecution has examined PW-1 the complainant Sri Shiv Kumar Mishra, PW-2 Dr. A.K. Mishra, who has conducted the postmortem of the two dead bodies, PW-3 Constable Mahendra Pratap Pandey, he is formal witness, carrier of the dead bodies, PW-4 is Dr. Vibhuti Kumar Srivastava, who has medically examined the injured Raj Kumar Mishra in District Hospital, Ghazipur, PW-5 is Constable Krishnawatar Yadav, who has prepared the chik report and G.D. of this case, PW-6 is Suraj Ram Rathore, Head Moharrir who has prepared the chik report and G.D. of the case under Arms Act, PW-7 is Jai Shankar Yadav, who is the other named eye witness in the FIR, this witness has supported the date, time and place of occurrence but he has stated that he has not seen the incident and has been declared hostile, PW-8 Irshad Ahmad Khan, S.I. he is also a formal witness for the offence under Arms Act, PW-9 is Vijay Kumar Yadav, constable he is a witness regarding alleged arrest and recovery of Vinod Kumar Mishra and Santosh Kumar Mishra, PW-10 is Brahma Singh Visen, S.I. who has prepared the inquest and he was also Investigating Officer of the case under Arms Act and PW-11 Mansoor Ahmad, the Investigating Officer of this case.
11.In their defence DW-1 Mithlesh Kumar has been examined on the point of alibi of appellant Jai Govind Mishra. No evidence on the point of alibi has been adduced on behalf of appellant Vinod.
12.After appreciating the evidence on record, the trial court convicted the appellants as above. Hence the instant appeal.
13.Submission of the learned counsel for the appellants was that in this case PW-7 has not supported the case of the prosecution and the only evidence of PW-1 Shiv Kumar Mishra, who is a related and interested witness cannot be relied upon. His evidence has been challenged on the ground that the place wherefrom he claims to have seen the incident was not disclosed by him to the Investigating Officer. It has further been submitted that PW-1 has stated that at the time of firing the accused persons and the deceased were facing each other and the injuries sustained by the deceased could not have been caused when they were standing in such a position. It has further been argued that lungis which were worn by the deceased persons, have not been taken into custody by the police nor it has been sent to the Forensic Science Lab for its examination. Some unknown persons who had enmity with the deceased Bal Govind had committed this offence and the appellants have been falsely implicated only to grab the property. It has also been argued that oral dying declaration as mentioned in the FIR cannot be acted upon because doctor in his evidence has stated that keeping in view the injuries sustained by the deceased Raj Kumar Mishra he was not in a position to speak after sustaining the said injuries.
14.Learned Additional Government Advocate and learned counsel for the complainant have submitted that before few days of the incident, the deceased Bal Govind Mishra had filed a civil suit against the some of the appellants. The deceased Bal Govind Mishra after retiring from his services came back to his village and came to know that property of his share has been sold by the appellants, therefore, he filed the said suit which annoyed all the accused persons and simply to grab the entire property these murders have been committed because after eliminating these two persons, the complainant Shiv Kumar Mishra would not be in a position to face the terror of these appellants. It is submitted that the delay, if any, in the FIR stands well explained. It has further been submitted that it is unbelievable that the son would spare the real assailants and would falsely implicate his own family members in the murder of his own father and real brother.
15.Before proceeding further we would like to mention the inter-se relationship of the deceased persons with the appellants. Appellants-Jaigovind, Jai Pakash, Om Prakash and Santosh are real brothers and sons of Namwar Singh. Appellant Vinod is son of Jaigovind Mishra. Namwar Mishra and Vishwanath were real brothers who were sons of Prasad. Deceased Balgovind Mishra is son of Vishwanath and deceased Raj Kumar Mishra is the son of deceased Balgovind. Complainant is son of deceased Balgovind Mishra.
16.The first point to be considered in this case is the delay in FIR. The incident of this case is alleged to have taken place on 04.06.2004 at about 7.30 p.m. while the FIR of this case was lodged on the same day at 23:30 hours i.e. after about four hours. According to the chik report the distance of the police station from the place of occurrence was 4.5 kilometers. But perusal of the evidence shows that after the incident the complainant made an arrangement of auto rickshaw and in making the said arrangement about half an hour time was consumed and thereafter on the said auto rickshaw he took the two injured to Ghazipur District Hospital but while they were on the way to Ghazipur District Hospital his father succumbed to the injuries. The other injured person Raj Kumar Mishra was taken to Ghazipur District Hospital, he was medically examined there and thereafter he was referred for further treatment to Varanasi. A memo to this effect was also prepared and was sent to the concerned police station. Thereafter, the complainant again made arrangement of transport to take his brother to Varanasi and while he was on way to Varanasi his brother also succumbed to the injuries. Thereafter he alongwith dead body of Raj Kumar Mishra came to the police station and prepared the FIR and thereafter the same was lodged at the police station. So in the instant case the complainant has first made an effort to save the life of his father and brother and in such effort lot of time was consumed. Such act of the complainant cannot, by any stretch of imagination, be said to be unnatural rather it was very natural. Keeping in view, the time taken in making arrangement of the vehicle for taking the injured persons to the hospital to get them examined must have consumed a lot of time and therefore, the FIR cannot be said to be delayed. On the contrary, the delay stands very well explained. At this juncture, we would like to quote certain pronouncement of Hon'ble Apex Court regarding the delay in lodging of the FIR.
17.Reference may be made to the pronouncement of Hon'ble Apex Court in the case of Jai Prakash Singh Vs. State of Bihar and Anr reported in (2012) 4 SCC 379 of which para 12 is important which reads as under:
"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations / deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide Thulia Kali v. State of T.N., State of Punjab v. Surja Ram, Girish Yadav v. State of M.P. And Takdir Samsuddin Sheikh v. State of Gujarat.)."
18.On this point the Hon'ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan reported in 2013 (5) SCC 655 in para 12 as under:-
12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand reported in [JT 2001 (5) SC 169], wherein a three-Judge Bench of this Court has expressed thus: - "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
13.In Ramdas and others v. State of Maharashtra reported in [2007 (2) SCC 170, this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution.
19.Thus, law is settled that even if there is delay in lodging of the FIR and delay stands well explained then it would have absolutely no adverse affect on the case of the prosecution. Even if the delay remains unexplained even then the case of the prosecution cannot be thrown away outrightly on this score alone. But in that case, a duty is cast upon the court to scrutinize the prosecution evidence with extra care and caution. In the facts of the instant case, as stated earlier, the delay stands well explained and virtually it was very normal conduct of the complainant first to make an effort to save the life of his father and brother. So in the instant case, the FIR was very much in time and there was no delay in lodging of the same. When Ram Kumar was medically examined and thereafter he was referred to the Varanasi then a memo was issued by the doctor which has been proved by the prosecution informing the police that Ram Kumar has been referred to Varanasi at 10.20 p.m. So after the incident, in making arrangement of transport for taking the injured persons to District Hospital Ghazipur and thereafter to Varanasi, time must have been consumed. While he was taking Raj Kumar on jeep to Varanasi before crossing Gomti river Ram Kumar also succumbed to the injuries and thereafter he came back and has lodged the FIR. So the FIR was not the least delayed and the delay stands very well explained. During this period, the complainant must have remained in such a distressed mental condition and agony that he could have only thought for saving life of his father and brother and idea of false implication must not have come to his mind. In such a mental condition it cannot be presumed that a person would plan to fabricate a false case sparing the real assailants of his father and brother.
20.There is no dispute to the fact situation that in this case only PW-1 the complainant has supported the case of the prosecution and PW-7 Jai Shankar Yadav, though has not supported the case of the prosecution but has stated that hearing the noise he alongwith other villagers went to the place of occurrence but he had not seen any person firing on the deceased and running away. Though this witness has not supported the case of the prosecution but his evidence supports the date, time and place of the occurrence. Apart from it, the case of the defence is that the incident has been caused by some other persons who were aggrieved with the deceased Bal Govind Mishra because he had taken money from them to render some help as Sub Inspector of police but when he failed to provide the said help then feeling aggrieved the said persons have caused this incident. Thus the defence on one hand accepts date, time and place of the incident and on the other hand suggestion has been given that the deceased persons after taking meals were sleeping in their house and some unknown persons in the night caused this incident and only because of the enmity appellants have been falsely implicated in this case. In support of this submission, learned counsel for the appellants has drawn the attention of this Court towards the statement of PW-1 wherein he has stated that his family members used to take lunch at about 10.00 a.m. And they used to take dinner at about 10.00 p.m. In the postmortem report semi digested food was found in the stomach, in the large intestine, gases and faecal matter were found. No specific question has been put in cross examination whether the deceased persons after taking the lunch have taken anything in the evening or not. So such condition of the stomach cannot be ruled out if the deceased persons had taken something in the evening. There is nothing in evidence to suggest that nothing was taken by the deceased persons in the evening and only on the basis of the evidence that they used to take meals in the morning at 10.00 a.m. and in the evening at 10.00 p.m., this argument has been advanced which has absolutely no substance.
21.Next argument was that the PW-1 is a close relative and an interested witness, so his sole testimony cannot be relied upon. There is no dispute to the fact situation that only PW-1 Shiv Kumar Mishra has supported the case of the prosecution and he is son of Bal Govind Mishra and real brother of the second deceased Raj Kumar Mishra. But the incident has taken place in the house of the deceased persons and that too in the night so the inmates of the house are the most natural and best witnesses. Their presence on the scene of occurrence cannot be denied nor their evidence can be discarded solely on the ground that they were closely related to the deceased.
22.Hon'ble Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC pg 433 had held in paragraph no.34 as under:-
"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar V. State of Punjab, (2003) 11 SCC 367, Brathi v State of Punjab (1991) 1 SCC 519 and Alagupandi v State of T.N. (2012) 10 SCC 451."
23.In a recent judgment in the case of Gurjit Singh v State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. Apart from it, Hon'ble the Apex Court in the case of Veer Singh v State of U.P. reported in (2014) 2 SCC 455 has observed that court can and may act on the single testimony. Legal system has laid emphasis on value, weight and quality of evidence rather than the quantity. It is the quality and not quantity that determines the adequacy of evidence.
24.Next submission of the learned counsel for the appellants was that in this case 7-8 fires are alleged to have been made and it has specifically been alleged that all the accused persons have fired and PW-1 has stated that 7-8 fires were shot but the postmortem of Raj Kumar Mishra shows that only two fire arm wound of entry were found and likewise in the postmortem of Bal Govind Mishra two fire arm wounds of entry were found. When several persons aim shots on any person then by natural reflex he makes an attempt to save himself from the fires. Therefore, in such circumstance, because of such reflex action of the injured persons, few fires shot by the accused persons might not hit the target. So this cannot be a ground to reject the otherwise reliable ocular testimony of a natural witness. Learned counsel for the appellants has submitted that PW-1 has stated that at the time of the incident the assailants and the injured persons (victims) were standing and were facing each other and the injuries, as noted by the doctor, could not have been caused in such a position and doctor has also given specific evidence that if assailants and the injured persons were facing each other at the time of firing then the said injuries could not have been caused. But as stated earlier, the injured persons were human beings and were not a stone idol. A human being in such a dangerous situation, by reflex action, changes his position simply in order to save himself from such attack. It cannot be presumed that the victims were standing in an attention position to receive the shots fired by the appellants. They must have made an attempt to save themselves and in such circumstances their position must have changed. So the medical opinion of the doctor, in these circumstances, is not capable of over ruling the ocular testimony.
25.Law is settled on the point that in cases of inconsistency between medical and ocular evidence the ocular evidence shall prevail. Only in cases where the medical inconsistency is of such nature which makes the prosecution case entirely improbable, only then such inconsistency shall be given importance.
26.At this juncture, we would like to discuss the law on the point as to what value should be attached to the medical evidence when the same is contrary to the ocular testimony of the witnesses. In the case of Umesh Singh Vs. State of Bihar reported in (2013) 4 SCC 360, Hon'ble the Apex Court has occasioned to discuss the law on the aforesaid point. In the said judgment, Hon'ble the Apex Court has quoted the relevant part of its earlier judgment in the case of Abdul Sayeed Vs. State of Madhya Pradesh reported in (2010) 10 SCC 259, the relevant paragraphs read as under:-
"33. In State of Haryana v. Bhagirath reported in AIR 1999 SC 2005 it was held as follows:
15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.
34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'.
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent Assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
21. ...... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
36. In Solanki Chimanbhia Ukabhai v. State of Gujarat reported in 1983 (2) SCC 174 this Court observed:
13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
(emphasis added)
27.Learned counsel for the appellants has also submitted that the FIR of this case is ante-timed and the incident has taken place at some unknown time in the night and the complainant was called and thereafter the FIR was prepared showing it to have been lodged in the night but we are not the least impressed with this submission. As discussed earlier, the FIR has been lodged without unreasonable delay. In the morning, the inquest proceedings were conducted at the gate of the police station which is abundantly clear from the inquest report of both the deceased. The inquest proceedings of Bal Govind Mishra were started at 5.30 a.m. and concluded at 7.00 a.m. Likewise inquest of Raj Kumar Mishra was concluded at 8.30 a.m. Perusal of the record shows that all the documents, which were prepared alongwith inquest report, bears the case crime number and details of the case and also the time on which the FIR was lodged. Even otherwise it cannot be presumed that the incident took place at some unknown time in the night because there is memo Exhibit Ka-6 sent by doctor of the District Hospital, Ghazipur, which establishes that Raj Kumar Mishra was brought to the hospital and was referred to Varanasi at 10.20 p.m. So this memo also proves that the incident has taken place at the time as is the case of the prosecution and the complainant was making an effort to save life of his father and brother and after the death of Raj Kumar Mishra he immediately lodged the FIR. It has also come in evidence that the complainant had handed over the dead body of his father at the District Hospital, Ghazipur, to some other person and thereafter he went alongwith his brother to Varanasi. So he could not explain as to who had brought the body of his father to police station. But this point has no consequence because the inquest report of both the deceased persons were conducted at the gate of hospital. Admittedly, the deceased persons have not died on the place where the incident has taken place and admittedly after the incident the complainant had taken both the deceased to hospital while they were alive.
28.In the instant case, the doctor who has medically examined Raj Kumar Mishra in District Hospital, Ghazipur, has noted only one injury on his chest while in the postmortem two fire arm wounds were reported by the doctor conducting the postmortem. PW-4 Dr. Vibhuti Kumar Srivastava, has stated that had there been any other injury he must have noticed the same. It appears that because of the profused bleeding or because of hurry of referring the patient he could not notice the second injury and he was negligent in doing so. He hurriedly noted one injury on the chest and referred the deceased Raj Kumar Mishra to Varanasi because he was apprehending his death very soon. So simply because PW-4 has noted only one injury in the medical examination report does not adversely affect the case of the prosecution in the facts of the instant case. Learned counsel for the appellants has also argued that as per the evidence of PW-1 deceased persons were putting on lungis but same were not taken into custody by the doctor. It transpires from perusal of the postmortem report that vest, underwear and kalawa were found on the body which were taken into custody by the doctor and were sent to the police in sealed condition. In the fact of this case the deceased persons were lifted from the place of occurrence and they were first taken to Ghazipur and from there Raj Kumar Mishra was taken to Varanasi and after their death both were brought back to the police station. If during such exercise, the lungi has fallen or removed from the body so it will not have any bearing on the case. Apart from it, it is nowhere the case of the defence that the incident has taken place at some other place and false incident in the house of the complainant has been shown. PW-1 has specifically stated that his father was also wearing vest, underwear, kalawa and lungi and the other things were taken into custody. So even if Lungi was not taken into custody even then it would have no impact on the case of the prosecution.
29.Specific defence of the accused persons is that they have been falsely implicated in this case due to enmity. But what was their enmity with the accused persons has nowhere been disclosed nor has been suggested in their cross examination. While the prosecution has come with a definite case that the land which fell within the share of the deceased Bal Govind Mishra was sold by the accused persons and therefore, a civil suit for injunction and cancellation of sale deed was filed which annoyed the appellants. In support of this submission, on behalf of the prosecution, a certified copy of the order dated 11.05.2004 passed by Civil Judge (Jr. Div.), Ghazipur, in Original Suit No.265 of 2004 and also the copy of the plaint of the aforesaid suit have been filed. The said suit was filed on 11.05.2004 i.e. less than one month prior to the incident. This suit was filed with the prayer for injunction and for cancellation of the sale deed which was executed by Jai Govind Mishra in favour of one Hriday Narain. It transpires from the record and from the evidence that joint family property was mutually partitioned. According to such earlier family settlements the shares of both sides were demarcated. Since the deceased Bal Govind Mishra was in service, therefore, taking advantage of this situation, the appellants started selling the land of the share of Bal Govind Mishra. After his retirement he came to his village and when he came to know about this act of the appellants then he has filed the aforementioned civil suit. Submission of the learned counsel for the appellants was that the appellants had no knowledge or information of the suit. Notices of the same were not served on them. Perusal of the certified copies of the order dated 11.05.2004 shows that the court had passed order for inspection of the disputed land by Amin. In village such type of activities becomes known to everyone without any delay or time gap. So it cannot be said that simply because notices of the said suit were not served on appellants so there was no question of any annoyance because of this reason.
30.The appellant Jai Govind Mishra has come with a specific plea of alibi and he has stated that he works as driver in the office of Executive Engineer, Tubewell, Buksar region Bihar. In his defence DW-1 Mithlesh Kumar, Accountant, of the said office was produced who had brought the attendance register. During course of arguments it was argued that the distance of Buksar to the place of incident was only 50 kilometers. Learned trial court has considered his plea of alibi of appellant Jai Govind Mishra and has rightly rejected. Since we concur with the findings and reasonings for rejecting the plea of alibi, therefore, to repeat the same would unnecessarily make this judgment lengthy, without serving any fruitful purpose. The son of the appellant Jai Govind Mishra namely Vinod Mishra has also taken a plea of alibi and he has stated in his statement under Section 313 Cr.P.C. that he was working in a company in Vanasthali in District Alwar, Rajasthan. However, no evidence on this point could be produced by the defence. It is strange to note that during cross examination a suggestion was given to PW-1 that the appellant Vinod Kumar Mishra was working in Gujarat. So this suggestion shows that the appellant Vinod was himself not sure whether he was working in Rajasthan or in Gujarat State. Apart from it, absolutely no evidence in support of such plea of alibi was lead by him.
31.Hon'ble the Apex Court in the case of Binay Kumar Singh Vs. State of Bihar reported in (1997) 1 S.C.C. 283 has considered the law on the point of alibi and has held in paras 22 and 23 which is being reproduced here as under:-
"22) We must bear in mind that alibi is not an exception (special or general) envisaged in the Indian Penal code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
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. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty So as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath pandey vs state of Utter Pradesh (1981) 2 SCC 166, state of Maharashtra Vs. Narsinghrao Gangaram Pimple (1984) 1 SCC 446)."
Hon'ble the Apex Court in the case of Om Prakash Vs. State of Rajasthan and another reported in (2012) 5 S.C.C. 201 has considered the law on the point of alibi and has held in para 32 which is reproduced as under:-
"Drawing parallel between the plea of minority and the plea of alibi, it may be worthwhile to state that it is not uncommon to come across criminal cases wherein an accused makes an effort to take shelter under the plea of alibi which has to be raised at the first instance but has to be subjected to strict proof of evidence by the court trying the offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of salutary principle that an innocent man may not have to suffer injustice by recording an order of conviction in spite of his plea of alibi."
In a recent judgment of Hon'ble the Apex Court in the case of Jumni and others Vs. State of Haryana reported in (2014) 11 S.C.C. 355 has considered the law on the point of alibi and has held in paras 20, 21, 22 and 23 which is reproduced as under:-
"It is no doubt true that when an alibi is set up, the burden is on the accused to lend credence to the defence put up by him or her. However the approach of the court should not be such as to pick holes in the case of the accused person. The defence evidence has to be tested like any other testimony, always keeping in mind that a person is presumed innocent until he or she is found guilty.
26. Explaining the essence of a plea of alibi, it was observed in Dudh Nath Pandey V. State of U.P. reported in (1981) 2 SCC 166 that:
"The plea of alibi postulates the physical impossibility of the presence of the accused at the 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." This was more elaborately explained in Binay Kumar Singh v. State of Bihar[2] in the following words:
"We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law.
It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant." Illustration (a) given under Section 11 of the Evidence Act is then partially reproduced in the decision, but it is fully reproduced below:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant." This Court then went on to say, "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. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi." This view was reiterated in Jayantibhai Bhenkarbhai Vs. State of Gujarat reported in (1997) 1 SCC 283.
27. On the standard of proof, it was held in Mohinder Singh v. State[4] that the standard of proof required in regard to a plea of alibi must be the same as the standard applied to the prosecution evidence and in both cases it should be a reasonable standard. Dudh Nath Pandey goes a step further and seeks to bury the ghost of disbelief that shadows alibi witnesses, in the following words:
"Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."
(emphasis added.)
32.Prosecution has come with a definite case that the motive of the appellants was to eliminate these two male members of the family and thereby to remove the hindrance in enjoying the entire property. This motive appears to be perfectly clear because PW-1 in his cross-examination has stated that he was not doing pairvi of the case because of the fear of the appellants. What the accused persons wanted stands established by this admission of the PW-1. So the appellants had a valid motive to commit this offence also.
33.Keeping an overall view of the instant case, the FIR was lodged without any delay. There was specific motive to commit the offence. The presence of eye witness (PW-1) on the place of occurrence was most natural. Ocular testimony of PW-1 stands fully corroborated by the medical evidence. Apart from it, the defence taken by the appellants is not the least probable and appellants Jai Govind Mishra and Vinod Mishra have utterly failed to prove their plea of alibi. Thus the finding of trial court needs no interference and it was the only conclusion that could have been drawn from the evidence on record.
34.In view of the discussion made above, these appeals lack merit, deserve to be dismissed and are hereby dismissed. All the appellants are in custody. They shall serve out their remaining sentences.
35.Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.
Order date: 4th August, 2015
PAL
Crl. Appeal No.7814 of 2006 (Raghvendra Kumar, J.) (S.V.S. Rathore, J.)