Ramphal Singh And 3 Ors. vs State Of U.P.
2021 Latest Caselaw 3114 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 08.02.2021
 
Delivered on 03.03.2021
 
Court No. 86
 

 
Case :- CRIMINAL APPEAL No. 6495 of 2019
 

 
Appellant :- Ramphal Singh And 3 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shiv Badan,Sushil Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Subhash Chand,J.

The instant appeal filed on behalf of accused-appellants under Section 374(2) Cr.P.C. is preferred against the judgment and orders dated 24.09.2019 passed by IVth Additional District & Sessions Judge, Kasganj, in Sessions Trial No. 59 of 2015, State vs. Ramphal Singh and others, as well as Sessions Trial No. 90 of 2015, State Vs. Jitendra, whereby the appellants have been convicted and sentenced as follows:

 
Appellants -Ramphal Singh, Sadhoo Singh & Devendra
 
307 IPC		:	Ten years rigorous imprisonment with fine of Rs.10,000/- 					each and in default of payment of fine six months 						additional simple imprisonment to each.
 
323 IPC		:	Six months rigorous imprisonment with fine of Rs.1000/- 					each and in default of payment of fine one month's 						additional simple imprisonment to each.
 
506 IPC		:	Two years rigorous imprisonment with fine of Rs.2500/- 					each and in default of payment of fine two months 						additional simple imprisonment to each.	
 
Appellant- Jitendra
 
307 IPC		:	Ten years rigorous imprisonment with fine of Rs.10,000/- 					and in default of payment of fine six months additional 					simple imprisonment.
 
323 IPC		:	Six months rigorous imprisonment with fine of Rs.1000/- 					and in default of payment of fine one month's additional 					simple imprisonment.
 
506 IPC		:	Two years rigorous imprisonment with fine of Rs.2500/- 					and in default of payment of fine two months additional 					simple imprisonment.	
 
1.	In the present appeal facts of the prosecution case may be summarized as under :-
 

The prosecution case in brief is that the informant Satish son of Daya Shankar, moved a written information with the police station with these allegations that on 25.10.2014 at 11.00 O'clock, he and his father had been coming back from their agricultural field and as soon as they reached near the hut of Geetam Singh Dau, the acusedRamphal, Devendra, Sadhoo and Jitendra, cordoned them and started hurling abuse on the issue of breaking the boundary of the agricultural field, began to beat the informant and his father with lathi and danda; accused-Ramphal opened fire from his rifle with intention to cause death of his father, which hit in right hand of his father; on raising alarm, Sanjay Singh and Matroo attracted there, who also saw the occurrence and rescued them; all the accused persons fled away extending life threats. At this written information, case crime no.404 of 2014 was registered against the accused-appellants, under Sections 307, 323, 504, 506 IPC. The Investigating Officer after having concluded the investigation filed two separate charge-sheets against the appellants. The court of additional Chief Judicial Magistrate, Kasganj, took cognizance on the charge-sheets and committed the case to the court of Sessions Judge, Kasganj, for trial.

2. The trial court framed charge against all the accused under Sections 307/34, 323, 504, 506 IPC and the charge was read over and explained to the accused-appellants, who denied the charge and claimed to be tried.

3. On behalf of prosecution to prove the charge against all the accused in documentary evidence adduced, written information Ext. Ka-1, supplementary report of injured Daya Shankar Ext. Ka-2, Check FIR Ext. Ka-3, G.D. Entry in regard to the registration of case Ext. Ka-4, Site Plan Ext. Ka-5, charge-sheet against accused Ramphal Ext. Ka-6, charge-sheet against accused Devendra and Sadhoo Ext. Ka-7, charge-sheet against accused Jitendra Ext. Ka-8, injury report of injured Daya Shankar Ext. Ka-9 and injury report of injured Satish Ext. Ka-10.

On behalf of prosecution in oral evidence, examined Satish P.W.1, injured Daya Shankar P.W.2, Dr. Rajeev Kumar P.W.3, Sub Inspector Amarnath Gautam (retd.) P.W.4, Dr. Manadi P.W.5.

4. The statement of accused-appellants under Section 313 of Cr.P.C. were recorded. All the accused denied the incriminating circumstances against them and stated themselves to be innocent and also stated that they have been implicated in this case due to enmity.

In defence evidence Dinesh @ Sitoo has been examined as D.W.1.

5. Learned trial court convicted all the accused for the offence under Sections 307, 323, 506 IPC and punished them as stated above.

6. Aggrieved from the impugned judgment this appeal is preferred on behalf of appellants on the ground that the conviction of the appellants is illegal, perverse and against the evidence available on record. The appellants have been implicated due to village rivalry and election enmity and this fact has been completely ignored by the trial court while holding the appellants guilty for the offences aforesaid. The punishment awarded by the trial court is not commensurate with the injuries received by the injured persons. The prosecution witnesses are totally interested and partisan, therefore, their testimony is not trustworthy. The medical evidence does not corroborate with the story as set up by the prosecution, which itself goes to show that the prosecution has failed to prove its case beyond all reasonable doubts. The court below has not applied its judicial mind while convicting and sentencing the appellants, therefore, the impugned judgment of conviction deserves to be set aside and the appellants deserve to be acquitted.

7. I have heard Sri Sushil Kumar, learned counsel for the appellants, Sri Rajeev Kumar Rai, learned AGA appearing for the State-Respondent and perused the lower court record.

8. On behalf of prosecution to prove the case in ocular evidence, examined P.W.1 Satish, P.W.2 Daya Shankar as a witness of fact.

P.W.1 Satish in his statement deposed that the occurrence is of 25.10.2014 at 11.00 O'clock in day hours. He along with his father had been coming back and when they reached near the hut of Geetam Singh Dau, accused Ramphal, Devendra, Sadhoo and Jitendra on the issue of breaking the boundary between their fields, started hurling abuse to them and also extended life threats, began to beat them with lathi and danda; Ramphal opened fire, which hit to the right hands above the chest of his father. Accused Devendra was armed with Tamancha, Ramphal was armed with rifle and other accused Sadhoo and Jitendra were armed with lathi and danda. On raising alarm Sanjay Singh and Matroo and other persons of the locality attracted there. He lodged the FIR, which is in his hand writing and marked as Ext. Ka-1. He rushed to his father to Community Health Centre, Sahawar, from where he was referred to District Hospital, Kasganj and from there his father was referred to Vinayak Hospital. In cross-examination, this witness stated that his agriculture field is in northern side and the adjoining land is of accused side. The only enmity was on breaking the boundary between the agricultural field. P.W.1 Satish could not get himself medically examined in Sahawar because firstly he wanted to save the life of his father.

P.W.2 Daya Shankar is also the victim and injured. This witness in his deposition stated that accused belong to the family of his uncle. There was boundary between his agriculture field and their agriculture field, which was broken by Ramphal by the Tractor. On 25.10.2014 he along with his son Satish was going to his house from agriculture filed and when they reached near hut of Geetam Singh Dau, all the accused persons came there and begun to beat him and his son with lathi, danda and also hurled abuse, criminally intimidated, Ramphal opened fire, which hit on his right hand; Matroo, Geetam Singh Dau and Sanjay Singh, attracted there.

This witness in his cross-examination deposed that due to sustaining firearm injury, he was not unconscious. His blood stained clothes were not taken by the police in custody. He was admitted in District Hospital, Kasganj at 4.00 O'clock and remained there till 9.00 pm and thereafter he was admitted in Vinayak Hospital, where he remained about seven days.

9. On behalf of prosecution to prove the injury report of Daya Shankar and Satish, examined P.W.5 Dr. Manadi. This witness proved the injury report of Daya Shankar Ext. Ka-9. The injuries were kept under observation and advised x-ray. All the injuries were caused by firearm.

This witness also proved the injury report of injured Satish as Ext. Ka-10. There were two injuries (i) contusion on left forearm 5 cm x 1.5 cm, 7 cm above the left wrist joint; (ii) contusion 1.5 cm x 0.5 on the left great toe on the base of the nail. Both the injuries were simple in nature and caused by hard and blunt object.

P.W.3 Dr. Rajeev Kumar Saxena, who proves the x-ray report of Daya Shankar Ext. Ka-2 and x-ray plate as material Ext. Ka-1. P.W.3 deposed that comminuted fracture was found in the humerus bone.

10. Learned counsel for the appellants has submitted that seat of injury on the body of P.W.2 Daya Shankar is on non vital part and so far as nature of injury is concerned, the same is not mentioned in the injury report by P.W.5 Dr. Manadi but in x-ray report P.W.3 Dr. Rajeev Kumar Saxena has stated that comminuted fracture was found in humerus bone, as such, at the most the offence under Section 324 of IPC or 326 of IPC was made out. Keeping in view the injury which is on non vital part of the body the intention of the accused cannot be inferred to cause death. Moreover, the role of opening fire has been assigned only with rifle and the injuries caused by other accused to the injured persons are simple in nature as such all the accused should not have been convicted for the offence under Section 307 of IPC and there is no finding of the court below in regard to causing injury in furtherance with common intention. It is further stated that weapon rifle which is allege to be used in the commission of offence, but the same was not recovered by the Investigating Officer. The enmity between the informant and the accused is admitted and due to enmity the accused-appellants have been falsely implicated in the present case. In support of his contention learned counsel for the appellants placed reliance on the following case laws:

1. Shyam Sharma Vs. State of U.P. and another [2018(102) ACC 1003].

2. Balla and another Vs. State of U.P. [2018(104) ACC 458].

3. Bijendra Vs. State of U.P. [2020(110) ACC 341]

4. Chandan Singh Vs. State of Uttrakhand [2020(110) ACC 334]

5. Sattan Sahani Vs. Stae of Bihar and others [2002(45) ACC 1134]

6. Neelam Bahal and another Vs. State of Uttarakhand [(2010) 2 SCC 229]

7. Shri Pal and others Vs. State of U.P. [2017(99) ACC 897]

11. Per contra learned Additional Government Advocate has submitted that the prosecution has proved its case beyond reasonable doubts. The injuries caused by firearm are grievous in nature. Even if seat of injury is on non vital parts yet there is evidence on record to show the intention of the accused to cause death of Daya Shankar. For the offence under Section 307 IPC, it is not essential that the injuries must be on vital part or grievous in nature.

12. The prosecution case is based on direct evidence. P.W.1 Satish is the injured witness of the occurrence and P.W.2 Daya Shankar is the victim of the occurrence, who sustained firearm injuries. As per prosecution version, the motive of causing the occurrence is the enmity of breaking the boundary between the agriculture filed of prosecution side and accused side. The motive is admitted. In case of direct evidence the motive of occurrence has no significance but if motive is given in the prosecution version the evidence of the same is desirable. Both the witnesses (P'W.1 and P.W.2) have proved this motive.

13. So far as occurrence is concerned, P.W.2 Daya Shankar in his statement deposed that all the four accused on the issue of boundary between the agriculture field, started hurling abuse, began to beat him and his son Satish with lathi and danda. Accused-Ramphal opened fire with rifle, which hit his shoulder. P.W.1 Satish also support the prosecution version and corroborates the statement of P.W.2 Daya Shankar and stated that on the date, time and place of occurrence all the accused came together and started hurling abuse on the issue of boundary of the agriculture field and began to beat his father with lathi and danda. Accused-Ramphal opened fire with rifle, which hit his shoulder.

14. This ocular evidence is also corroborated with medical evidence. In injury report of P.W.2 Daya Shankar, there are two injuries, injury no. 1 is the entry wound 1 cm x 1 cm and the injury no.2 is the exit wound of size 1.5 cm x 1.5 cm. Both the injuries were opined to be caused by firearm.

15. So far as presence of accused at the place of occurrence is concerned, on behalf of defence counsel this suggestion was given to the prosecution witnesses. P.W.2 Daya Shankar that the firearm injury was caused to him on account of opening of fire by himself at the accused-Ramphal, which accidentally hit to himself. This defence taken on behalf of accused supports the prosecution version that the occurrence took place on the alleged date, time and place.

16. So far as role of firing by accused-Rampal while other accused armed with lathi and danda caused simple injuries with hard and blunt object to P.W.1 Satish are concerned, this fact is proved from the prosecution witnesses that all the accused came together at the place of occurrence armed with lathi, danda and rifle and all attacked with the weapons in their hands to the informant P.W.1 Satish and his father P.W.2 Daya Shankar. All the accused have also extended life threats while inflicting injuries.

17. Sharing of common intention under Section 34 of IPC, the premeditating of mind is not necessary. The common intention may arise on the spur of moment while committing crime, which can be inferred from the conduct of the accused persons at the place of occurrence, the weapons in their hands.

The Hon'ble Supreme Court held in Lallan Rai Vs. State of Bihar, AIR 2003 Supreme Court 333 that common intention under Section 34 IPC is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused. The same depends upon the facts and circumstances of each case.

The Hon'ble Apex Court held in Thoti Manohar Vs. State of Andhra Pradesh, 2012 (78) ACC 511 (SC), held that for the common intention previous meeting of mind, pre-arrange plan or pre-consult is very difficult to establish by way of direct evidence.

The Hon'ble Supreme Court held in Surendra Singh Vs. State of Punjab 2007 Crl. Law Journal 49, some accused persons were armed with deadly weapons, two of the accused persons were not armed, but they restricted the moment of the deceased when there was quarrel. All accused persons came together and left together. They had common intention to cause the offence under Section 304(II) read with section 34 of IPC.

The Hon'ble Apex Court held Syed Yusuf Hussain Vs. State of Andhra Pradesh, 2013(82) ACC 14 (SC) that principle of joint liability act must have been done by more than one person, they must have shared a common intention either by omission or commission in effectuating the crime. It is not necessary that each accused must do separate act. They must share the intention to commit the offence.

Therefore, in view of conduct of all the accused persons coming together, hurling abuse, extending life threats and also leaving the place of occurrence together after having inflicted injuries. From the conduct and circumstance of this case, sharing of common intention in commission of crime is established from the evidence adduced by the prosecution.

18. Moreover, on behalf of accused in defence evidence D.W.1 Dinesh @ Sitoo was examined. This witness in his statement deposed that on 25.10.2014 at 11.00 O'clock he had left his house after having food. He heard hue and cry nearby the hut of Geetam Singh Dau and saw Ramphal, Daya Shankar and Satish were exchanging foul abuse. After all Daya Shankar had exhorted Satish to open fire. Satish opened fire upon Ramphal, which accidentally hit to Daya Shankar, who is father of Satish. This witness in his cross-examination deposed that he had not given any information in regard to this occurrence with the police station concerned or higher police officials and he did not move any complaint in regard to the same in the court also. This quarrel took place nearby the hut of Geetam Singh Dau. Only accused-Ramphal was on the spot. Accused-appellant Jitendra was not present at the place of incident. Jitendra was in Ghaziabad, Sadhoo Singh and Devendra both had gone to Sabji Mandi. No statement was recorded of him by the police.

The statement D.W.1 Dinesh @ Sitoo also corroborates this fact that quarrel had taken place nearby the hut of Geetam Singh Dau. Except Ramphal the presence of other accused persons is denied by this witness. This fact also corroborates that Daya Shankar sustained bullet injuries. As such the place of occurrence and the factum of occurrence is well corroborated from the statement of D.W.1.

19. Learned counsel for the appellants has submitted that bullet injury was on non vital part of Daya Shankar and there is no such medical evidence to show that the bullet injury was dangerous to life. At the most keeping in view the fracture and also the firearm injury received on the shoulder the offence under Sections 324/326 IPC is made out.

20. The firearm injury was inflicted to injured P.W.2 Daya Shankar, injury no. 1 is the entry wound 1 cm x 1 cm, on anterior medial aspect of right upper arm 10 cm below the right shoulder joint and the injury no.2 is the exit wound of size 1.5 cm x 1.5 cm, on posterior lateral aspect of right upper arm 10 cm below the right shoulder joint. P.W.5 Dr. Manadi has proved this injury report Ext. Ka-9 and deposed that whether this injury was likely to cause death can be opined only after perusal of x-ray report.

X-ray report of injured Daya Shankar is Ext. Ka-2, which has been proved by P.W.3 Dr. Rajeev Kumar Saxena an x-ray plate has been marked as material Ext.-1. P.W.3 stated that comminuted fracture was found in humerus bone. As such the injury was grievous in nature.

Apart from injury, there is ocular evidence of P.W.1 Satish and P.W.2 Daya Shankar to prove the intention to cause death. Both the witnesses have stated that on the issue of breaking boundary between two agriculture fields. All the accused persons came together, started hurling abuse, began to beat them with lathi and danda and also extended life threats. Ramphal opened fire which hit to P.W.2 Daya Shankar.

The Hon'ble Apex Court held in Anjani Kumar Chaudhary Vs. State of Bihar, AIR 2014 Supreme Court 2740, in order to attract Section 307 IPC, injury need not be on vital part of the body.

The Hon'ble Apex Court also held in State of Madhya Pradesh Vs. Harjeet Singh and others, 2019 (2) SCC 1089, in an attempt to commit murder, it is not necessary that injury caused must be on the vital part. The Hon'ble Apex Court held in paragraph 5.6.3 "if assailant acts with intention or knowledge that such action might cause death, and hurt is caused then provision of Section 307 of IPC would be applicable. There is no requirement for the injury to be on vital part of the body, merely causing hurt is sufficient to attract Section 307 IPC."

21. So far as case law Shyam Sharma Vs. State of U.P. and another as cited by the learned counsel for the appellants is concerned, in this case the prosecution had failed to prove the intention to cause of murder. The sole evidence was in regard to nature of injury and also the seat of injury caused on the body of the injured. Therefore, the benefit of this case cannot be extended to the appellants of the present case.

21(A). So far as case of Sattan Sahani Vs. Stae of Bihar and others is concerned, in this case also keeping in view the single blow inflicted by the accused to the injured and there was no evidence either direct or otherwise to prove the intention of accused to cause death of injured, therefore, this case law has no application in the present of appellants.

21(B). So far as case of Neelam Bahal and another Vs. State of Uttarakhand is concerned, in this case the accused was carrying a weapon in his pocket of which victim was not aware. The only nature of injury was taken into consideration to bring the offence committed within the periphery of of Section 326 and not Section 307 IPC and as such the benefit of this case law cannot be extended to the accused of present case as there was no other evidence to infer the intention of the accused to cause of murder.

21(C). So far as the case law Shri Pal and others Vs. State of U.P. is concerned, in that case all the accused were involved in the incident, victim suffered simple injuries and there was no evidence in regard to intention to commit the murder. Therefore, the offence committed was treated under Section 324 of IPC instead of 307 IPC.

22. Therefore, in view of ocular evidence and medical evidence the offence under Section 307 IPC is made out.

23. Learned counsel for the appellant also submitted that the weapon used in the commission of crime was not recovered. Even the bullets or cartridge, which may establish the opening of fire, was not collected by the investigating Officer. Moreover, the blood stained clay and plain clay was not taken in possession by the Investigating Officer, therefore, causing firearm injuries, is not proved beyond all reasonable doubt.

From the evidence adduced by the prosecution, it is found that the Investigating Officer did not recover the firearm weapon with which the fire was opened by the accused and also bullets and cartridges were not recovered. It is also established that the Investigating Officer did not take in his possession the blood stained clay and plain from the place of occurrence and also blood stained clothes of the injured. Certainly there is negligence and lacuna on the part of Investigating Officer in conducting the investigation. The Hon'ble Apex Court held in C. Munniappan and others Vs. State of Tamil Nadu, 2011 (1) C.C.S.C. 470 (SC) that defect in the investigation by itself cannot be a ground for acquittal. It is obligatory upon the Court to examine the prosecution witness and to see whether the lapse affected the object of finding the truth.

The Hon'ble Apex Court held in Ram Singh @ Chhaju Vs. State of Himachal Pradesh, 2010(1) SCC (Crl) 1496, the negligence on the part of Investigating Officer cannot discredit the testimony of victim. In a rape case whether blood stained clothes were not sent by the Investigating Officer for chemical examination cannot be the ground to discard the testimony of victim.

So far as the non recovery of the weapon of assault with which the accused opened fire is concerned, the Apex Court held in State of Punjab Vs. Hakam Singh, 2005 (7) SCC 408, non sending of weapon of assault, cartridges and pellets to the Ballistic expert for examination would not be fatal for the prosecution case, if the ocular evidence is found credible and cogent.

The Hon'ble Apex Court also held in Sanjiv Kumar Gupta Vs. State of U.P. (now Uttrakhand), 2015 (5) Supreme Court 369, non production of weapon used by the accused in commission of offence is neither fatal to the prosecution nor any adverse inference can be drawn on this score too.

24. Learned counsel for the appellants also submitted that no independent witness of the occurrence was examined on behalf of the prosecution except P.W.1 Satish and P.W.2 Daya Shankar, who are son and father. The testimony of both the witnesses are interested, which cannot be a ground for conviction of the accused. It is also submitted that the testimony of both the witnesses cannot be relied because enmity between two is admitted.

The Hon'ble Apex Court in Yogesh Singh Vs. Mahabeer Singh AIR 2016 SC 51609, the prosecution version cannot be discarded on the ground of lack of independent witness.

The Hon'ble Apex Court held in Gangadhavani Vs. Rayapati Venkat Reddy, Crl. Law Journal 2013 (4) 4618 that evidence of interested witnesses cannot be disbelieved merely they are related to each other or to the deceased.

The Hon'ble Apex Court in the case Mahavir Singh Vs. State of Madhya Pradesh, 2016 (10) SCC 220, in para-10 held as under:

"It is a settled principle that the evidence of interested witness needs to be scrutinized with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted."

The Apex Court in the case of Vijay Shankar Shinde Vs. State of Maharashtra, AIR 2008 SC 1198, held that the testimony of injured witness who is examined as a witness lends more credence, because normally he would not shield the real culprit.

In the present case the testimony of both the injured witness P.W.1-Satish and P.W.2-Days Shankar is found trustworthy. There is no contradiction in the statement of these witnesses recorded by the Investigating Officer under Section 161 Cr.P.C. and their statement during trial. Their testimony is also corroborated with medical evidence. Moreover, the factum of the occurrence is also corroborated with the statement of defence witness DW.1 Dinesh @ Sitoo. As such in this non examination of independent witness cannot be a ground to disbelieve the testimony of injured witnesses.

25. So far as offence under Section 323 IPC is concerned, the prosecution is successful in producing the ocular and documentary evidence in regard to causing simple hurt to P.W.1 Satish. Injury report Ext.Ka-10 has been proved by P.W.5 Dr. Manadi and his statement is also corroborated with the statement of injured witness P.W.2 Daya Shankar. So far as the offence under Section 506 IPC is concerned, in this regard in ocular evidence P.W.1 Satish and P.W.2 Daya Shankar, bothhave categorically stated that all the accused cordoned them, started hurling abuse, beaten them and after inflicting injuries all the accused fled away from the place of occurrence after having extended life threats. Therefore, the offence under Sections 323, 506 IPC is also well established from the prosecution evidence.

As such from the evidence on record, oral and documentary, the prosecution has been successful in proving its case beyond all reasonable doubts.

26. So far as the case law Balla and another Vs. State of U.P. cited behalf of the appellant is concerned, in that case appellant no.2 was charged with guarding with lathi while the appellant no.1 was charged with causing three incised wound to the injured with sword, who died during pendency of appeal. Keeping in view the fact that appellant no.2 was only guarding on the spot, his sentence was reduced. As such the benefit of this case cannot be extended to the appellants of present case.

27. So far as the case of Bijendra Vs. State of U.P. is concerned, in this case the coordinate Bench of this Court reduced the sentence of appellant-convict on the ground that the appellant was aged 72 years and had served out the sentence of 12 years in jail but in the present case the appellants have served out the sentence of one and half years only, therefore, the benefit of this case cannot be extended to the appellants.

28. Learned counsel for the appellant has also submitted that the sentence awarded by the court below for the offence under Section 307 IPC is too harsh and requested to reduce the same. In this case from the evidence on record the offence is made out under Section 307(II) of IPC, in which maximum sentence is life imprisonment but the court below has awarded sentence of ten years which is commensurate with the offence committed by the appellants and keeping in view the evidence adduced by the prosecution the same does not require any modification by this Court.

29. Plea of alibi has been raised in regard to the remaining accused except Ramphal. In this context prosecution has examined D.W.1 Dinesh @ Sitoo. This witness in his examination-in-chief stated that on 25.10.2014 at about 11.00 O'clock he left his house after taking food and hearing hue and cry reached near the hut of Geetam Singh Dau and saw accused Ramphal, Daya Shankar and Satish having quarrelled there. Jitendra was not present at the place of occurrence as he had been in Ghaziabad in regard to his livelihood he was doing labour work/palledari, Sadhoo Singh and Devendra both had gone to Sabji Mandi.

30. The expression plea of alibi means elsewhere i.e. it is impossible for the accused for participation in the crime and in these circumstances, distance becomes the relevant factor.

The Apex Court in Shaikh Sattar Vs. State of Maharashtra, 2010 (3) SCC (Criminal) 906, in criminal trial plea of alibi have to be proved with absolute certainty so as to completely exclude the possibility of presence at the place of occurrence at the relevant time.

The Hon'ble Apex Court held in Vijay Pal Vs. State (Government of NCT of Delhi) AIR, 2015 SC 1495, for plea of alibi where there is no material to show that it was physical possibility of accused at the scene of occurrence by the reason of his presence at another place. His presence at the place of occurrence cannot be disbelieved on the bald utterance of sister which defies reason.

In the present case this plea of alibi was not raised on behalf of accused Jitendra, Devendra and Sadhoo Singh by the defence counsel neither in the cross-examination giving any suggestion of the same to the prosecution witnesses nor this plea was raised in their statement recorded under Section 313 Cr.P.C. Even none of these accused produced themselves in the witness box to prove the plea of alibi with some evidence. The only evidence is the statement of D.W.1 Dinesh @ Sitoo, whose testimony in this regard cannot be cogent or trustworthy because no source has been disclosed by this witness in regard to this fact that accused Jitendra had been residing in Ghaziabad, Devendra and Sadhoo Singh had gone to Sabji Mandi. A bald defence has been made by this witness which is not corroborated by any other evidence even on the touchstone of preponderance of probabilities.

31. So far as plea of enmity as raised by the accused persons in their statements recorded under Section 313 Cr.P.C. is concerned, this enmity is admitted to both the sides. But the enmity is a double edge weapon; on the basis of which the possibility of false implication in any case is also the same, as the possibility in commission of the crime. On this sole ground the prosecution case cannot be discarded.

32. From the over all assessment and re-appreciation of evidence on record, the prosecution has successfully proved its case beyond all reasonable doubts. There is no illegality or infirmity in the judgment of conviction passed by the Court below. The present criminal appeal deserves to be dismissed.

33. Accordingly, the criminal appeal is dismissed. The judgment of conviction dated 24.09.2019 passed by IVth Additional District & Sessions Judge, Kasganj, in Sessions Trial No. 59 of 2015, State vs. Ramphal Singh and others, as well as Sessions Trial No. 90 of 2015, State Vs. Jitendra are hereby affirmed. The appellants are in jail. They are directed to serve the remaining sentence as has been awarded by the trial court.

34. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further send back the lower court record.

(Subhash Chand, J.)

Order Date :- March 3rd, 2021

Prajapati