Madhya Pradesh High Court

Abrar vs The State Of Madhya Pradesh on 7 January, 2025

Author: Vivek Rusia

Bench: Vivek Rusia

                             NEUTRAL CITATION NO. 2024:MPHC-IND:36929

                                                                    1                   CRA-1418-2014

                           IN THE HIGH COURT OF MADHYA PRADESH
                                        AT I N D O R E
                                                    BEFORE
                                       HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                       &
                                   HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI

                                             CRIMINAL APPEAL No. 1418 of 2014
                                                        ABRAR
                                                         Versus
                                             THE STATE OF MADHYA PRADESH

                           Appearance:
                                 Shri Vikaram Singh Bule, counsel for the appellant.
                                 Shri Sonal Gupta, Additional Advocate General for respondent/State.

                                   RESERVED ON               :          18.12.2024
                                   PRONOUNCED ON :                      07.01.2025

                                                             JUDGMENT

Per: Justice Binod Kumar Dwivedi

This Criminal Appeal is directed against the judgment dated

28.08.2014 passed by III Additional Sessions Judge, Ujjain in Sessions Trial

No. 92/2014 whereby the appellant has been convicted for the offence

punishable under sections 302 and 449 IPC and sentenced to undergo

imprisonment for life with fine of Rs.1,000/- in each of the offence with

default stipulation.

2. The prosecution story briefly stated is that information was

received by Police Station Banganga Indore from Sainik 326 Sanjay Parmar

that deceased Arbina who was admitted in Aurobindo Hospital on

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08.12.2013 at about 11:50 by her brother Arshad Mohd. on account of burn

injuries, died on 09.12.2013 at about 5:45 pm. On this information, merg

No.70/2013 (Ex.-P/14) was registered and inquiry was set in motion. It was

found that deceased Arbina lodged Dehati Nalishi (Ex.P/12) on 04.12.2013

at 10:30 pm at Burn Ward, District Hospital, Ujjain recorded by Sub

Inspector Rohit Yadav (PW-10) mentioning that she has four brothers and

four sisters. Accused Abrar was his neighbor and she was having love affair

with him. Appellant wanted to marry her. On the aforesaid date in the

afternoon, Abrar gave him mobile phone and told her to talk to him. While

talking to him on mobile, her sister Shah Bano noticed her. Thereafter Shah

Bano talked to accused Abrar on phone, then Abrar told her that Arbina was

his time pass. She is illiterate, therefore he would not marry her. In case, she

insists for marriage, he would finish her.

3. Thereafter with an intention to kill her, accused Abrar came to her

house with one plastic cane of kerosene. When she was standing at back

door of her house, appellant came there and poured kerosene upon her, set

her ablaze and fled away. She cried for help and hearing her cry, members

of her family tried to rescue her. With the help of neighbor Shahrukh @

Golu and her brother Ashique got her admitted to District Hospital, Ujjain.

She has sustained serious burn injuries on her face, both hands, stomach and

feet. Dr. A.L.Agrawal (PW-8) on 04.12.2013 at about 10:10 pm recorded

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Dying Declaration (Ex.P/10) of the deceased wherein also she levelled

allegations of setting her ablaze by pouring kerosene against the appellant.

On death of the deceased, Naksha Panchayatnama (Ex.P/2) was prepared in

the presence of witnesses Shahnawaz, Ashique, Irfan, Tyra Bi and Arshad.

To ascertain the cause of death, the dead body was sent for conducting

autopsy. The autopsy was conducted and postmortem report (Ex.P/12) was

given by Dr. Pradip Mishra which was proved by Dr. N.M. Unda who

opined that deceased died due to failure of cardiac and respiratory system

which was result of burn injuries and complexities arising therefrom.

Thereafter, Police registered FIR (Ex.P/19) and investigation ensued.

4. During investigation, white cotton was used to collect sample of

kerosene from the spot and kerosene cane was seized along with other

items. Seizure memo (Ex.P/13) was prepared. Spot map (Ex.P/17) was

prepared at the instance of sister-in-law (bhabhi) of deceased Arbina. Before

this, on 04.12.2013 at District Hospital, Ujjain the statements of deceased

Arbina (dying declaration, Ex.-P/10) was recorded. On 05.12.2013,

statements of witnesses Sherbano (PW-3), Ashique (PW-5), Shahrukh @

Golu (PW-4) were recorded. Statements of sister-in-law (bhabhi) Shahnaz

(PW-6), Arshad (PW-7) and independent witnesses Hanif and her daughter

Arzoo (PW-9) were recorded. On the same day, statement of Dr.

A.L.Agrawal (PW-8) was also recorded. The accused was arrested on

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06.12.2013 and arrest memo (Ex.P/15) was prepared. During investigation,

he gave information of recovery of Samsung Mobile dual Sim having Sim

of Vodaphone and Reliance. The same was seized at the instance of

appellant and seizure memo (Ex.P/16) was prepared. From the brother of

appellant, Arshad, a mobile phone given by the appellant to the deceased

was seized and seizure memo (Ex.P/13) was prepared. Call details were

collected. The seized incriminating articles along with draft (Ex.P/20) were

sent by S.P. Office, Ujjain to FSL Sagar for chemical examination. Viscera

and vaginal slide were also sent for chemical examination vide draft

Ex.P/21 and P/22.

5. After investigation, charge sheet was laid before the competent

Magistrate of local jurisdiction, who after complying with necessary

formalities contemplated under Section 207 Cr.P.C. committed the case to

the Court of Sessions from where it was made over to III Additional

Sessions Judge for trial in accordance with law. Trial court framed charges

under section 302 and 449 IPC against the appellant, who abjured the guilt

and claimed to be tried. The prosecution in order to prove its case,

examined as many as 13 witnesses. Apart from these documents, Ex.P/1 to

P/22 were also marked in evidence. The appellant took plea of alibi that at

the time of incident he was travelling by train and had reached Guna and to

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prove this he examined 4 witnesses in his defence. Documents Ex.D/1 and

D/2 were also marked in evidence.

6. The incriminating circumstances appearing against the appellant in

prosecution evidence were brought to his notice during examination u/s.

313 of the Cr.P.C., he either denied them or expressed innocence. The

defence has been that he is innocent and has been falsely implicated in this

case. He has taken specific plea that at the time of incident, he was at Guna

and when he got information about being named in commission of offence,

he appeared before the SHO of GRP, Satyesh Kumar Sharma (DW-1). He

also got examined Gaurav Kapoor (DW-4), Nodel Officer of service

provider Reliance Company to prove his mobile location at Guna, at the

time of incident. Learned trial Court on the basis of evidence adduced

before it, vide the impugned judgment, convicted and sentenced the

appellant, as stated hereinbefore.

7. The conviction and sentence is challenged on the ground that the

learned trial Court has not properly appreciated the evidence led by the

prosecution and that, material omissions, contradictions and anomalies have

been ignored. The contention is that the appellant at the time of incident

was traveling to Guna by train, where he met SHO of GRP Satyesh Kumar

Sharma (DW-1). It is submitted that the finding of guilt arrived at by the

learned trial Court being contrary to law and facts, has been recorded

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ignoring defence of the accused and infirmities and contradictions in the

dying declaration (Ex.-P/10) and Dehati Nalishi (Ex.-P/12) of the case, is

liable to be set aside.

8. Per contra, learned Additional Advocate General supporting the

impugned judgment, has submitted that the learned trial Court, on due and

proper appreciation of evidence, has come to the finding that death was

homicidal caused by appellant, who after pouring kerosene oil on the

deceased set her ablaze. The finding so recorded is based on evidence and,

therefore, no interference is called for in the impugned judgment.

9. We have given our thoughtful consideration to the submissions

made by the learned counsel for the rival parties and also gone through the

record. The point for consideration is, whether the finding of guilt arrived at

by the learned trial Court is against the evidence on record and relevant

legal position.

10. Dr. Sanjay Rana (PW-13) has stated that he was posted at Civil

Hospital, Ujjain on 04.12.2013. On that date Ashique S/o Ballu Khan (PW-

5) has brought injured Arbina D/o Mulla Khan aged about 15 years and

resident of Begambagh Colony for examination. The injured had told him

that she got burn injuries by kerosene. She was having superficial to deep

burn wounds on her face, neck, chest, stomach, both the arms, thighs and

she was near about 80% burnt. She was admitted in burn ward and referred

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to surgical specialist for further examination. Report given by him is Ex.-

P/16 bearing his signatures.

11. To ascertain the nature of death, the statement of Dr.N.M.Unda (PW-

12) who has been examined to prove the autopsy conducted on the dead

body of the deceased by Dr. Pradeep Mishra is important. He has stated that

during examination burn injuries on forehead, nose, eyes and lips of the

deceased have been found. Both ears were also having burn injuries of

second and third degree. Similarly on shoulder and right arm, I and II

degree burn injuries were found and on the lumber region, burn injuries of

II and III degree were present. He has opined that death of the deceased was

due to complexities arising out of burn injuries which resulted in failure of

cardiac and respiratory system. Death had occurred within 24 hours from

the time of examination. The postmortem report is Ex.P/15 bearing

signatures of Dr. Pradeep Mishra. Nature of death whether it was accidental,

suicidal or homicidal has not been opined by the Doctor.

12. Irfan (PW-1) has merely stated that on information of death of his

sister, he came to Indore. Similar is the statement of Tayra Bi (PW-2). Both

these witnesses were summoned for preparing Naksha Panchayatnama of

dead body. Sherbano (PW-3), elder sister of the deceased has deposed that

her sister died of burn injuries. On this information when she reached to her

paternal house where she witnessed that Arbina was lying in the kitchen.

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She was taken to hospital by neighbor Shahrukh @ Golu (PW-4). She has

further stated that her sister was not in senses and she had no conversation

with her. Shahrukh @ Golu (PW-4) has deposed that some noise was

coming from Arbina's house. He went there and by pushed open the door of

the house and found that Arbina was lying in the burnt condition. Both of

these witnesses have turned hostile and nothing has surfaced even in

leading questions put to them after declaring them hostile which could

support the prosecution case.

13. Ashique (PW-4), brother of the deceased has stated that he was

going to Hyderabad by his vehicle, when he reached nearby Kshipra Dhaba

in the evening in between 7:30-8:00 pm he was informed by his friend

Shanu that his sister (deceased) had got burn injuries. On this, he reached to

hospital where Shahrukh @ Golu (PW-4) told him that he had brought

Arbina to the hospital. This witness has also not supported the prosecution

case. Shahnaz (PW-6) who is sister-in-law (bhabhi) of the deceased stated

before the Court that at the time of incident, she had gone to the house of

her maternal father-in-law for fetching milk for her child where children of

the community informed that smoke was coming out from the house. She

rushed to her house where Golu was thumping the door for opening it.

When she and other neighbors with the help of Shahrukh opened the door,

she witnessed the deceased Arbina was lying fainted in burnt condition. She

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was taken to the hospital. She had no conversation with the deceased as she

was not in senses. Thus, this witness has also not supported the prosecution

case. Similarly, brother of the deceased Arshad (PW-7) has stated before the

Court that on information that deceased Arbina had sustained burn injuries,

he came to the hospital. When she did not come in senses for 2-3 days, he

took Arbina to Indore for further treatment where on 09.12.2013, she

succumbed to her injuries. This witness has also turned hostile and nothing

could be culled out from his cross-examination after declaring him hostile,

which could support the prosecution case. Similar is the statement of Arzoo

(PW-9).

14. Thus, the only substantial evidence remains is Dying Declaration

(Ex.P/10) recorded by Dr. A.L.Agrawal (PW-8) and Dehati Nalishi report

(Ex.P/12) which has been allegedly recorded on the information given by

the deceased. It is not in res integra that Dying Declaration of a person may

form sole basis of conviction of the accused if it is found reliable and

inspiring confidence. Dr. A.L.Agrawal (PW-8) has stated that on 4.12.2013

he was posted at District Hospital Ujjain as Medical Officer. He recorded

the Dying Declaration of Arbina D/o Mulla Khan resident of Begambagh

Colony, Ujjain who was admitted for treatment in burn ward. This witness

has stated that Arbina was in her senses and in a condition to give

statement. He had started recording her statement at 10:10 pm, wherein she

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had informed that at about 8:00 pm in the evening appellant Abrar S/o

Aslam Khan came, poured kerosene on her, set her ablaze and fled away.

She was in love with him, at that time she was in kitchen for drinking the

water. When she shouted for help, he fled away pushing her aside. He has

taken thumb impression of the deceased on this statement which was

completed at 10:20 pm.

15. It is an admitted fact that neither before recording Dying

Declaration nor on the completion of it, any certificate has been given by Dr.

A.L.Agrawal (PW-8) that deceased was in a fit mental condition for giving

the statement. It has been admitted by Dr. A.L.Agrawal (PW-8) in his cross-

examination that he has not treated the deceased. He was also not expert in

treating burn injuries. He has also admitted that he has not taken any

certificate from the treating Doctor whether the deceased was in fit mental

condition to give the statement. It is also to be noted here that the witnesses

Sherbano (PW-3), Shahrukh @ Golu (PW-4), Ashique (PW-5), Shahnaz

(PW-6), Arshad (PW-7) and Arzoo (PW-9) who have been examined by the

prosecution have deposed before the Court that when they saw the deceased

after the incident she was not in her senses. None of them has stated that

they had any conversation with the deceased with regard to the incident.

Arshad (PW-7), brother of the deceased in his cross-examination has

specifically mentioned that when Arbina did not return to her senses for two

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to three days, he brought her to the Indore for further treatment, where on

09.12.2013 she passed away.

16. If statements of these witnesses are conjointly read, it becomes

quite apparent that the deceased was not in a position to give any statement

as she was not in senses, which belies the statement of Dr. A.L.Agrawal that

at the time of recording dying declaration, the deceased was in fit mental

condition to give statement. In such factual matrix it become doubtful that

alleged Dying Declaration was taken in fit mental condition of the

deceased.

17. Dehati Nalishi (Ex.P/12) which has allegedly been recorded at

10:30 pm on 04.12.2013, the date of incident at the instance of the deceased

by Sub-Inspector Rohit Yadav (PW-10) has stated before the Court that

when he recorded Dehati Nalishi (Ex.P/12) deceased was admitted in burn

ward of the District Hospital, Ujjain. This witness has also nowhere stated

that he has taken any certificate from the treating Doctor that the deceased

was in fit mental condition to give statement about the incident. Apart this,

it is also worth mention that in dying declaration (Ex.-P/10) by Dr.

A.L.Agrawal (PW-8) in burn ward of the District Hospital, Ujjain, it has

been mentioned that at the time of incident the deceased was drinking water

in the kitchen, when appellant came there poured kerosene on her, set her

ablaze and fled away, whereas in Dehati Nalishi report (Ex.-P/12), which

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also allegedly recorded at the instance of the deceased on the date of

incident i.e. on 04.12.2013 at about 10:30 pm. about ten minutes after

recording of the dying declaration, it is mentioned that at the time of

incident the deceased Arbina was standing at backdoor of her house when

appellant came there, poured kerosene on her and set her ablaze. In both

these documents, if they are taken as dying declaration there is material

difference about the place where at the time of incident the deceased was.

18. It is also to be mentioned that in dying declaration (Ex.-P/10)

time of incident has been mentioned as about 08:00 pm, whereas in Dehati

Nalishi (Ex.-P/12) time of incident has been mentioned as 07:45 pm. Thus,

there is also difference with regard to the time of incident. These differences

in narration of dying declaration (Ex.-P/10) and Dehati Nalishi (Ex.-P/12)

cast serious doubt on the veracity of these documents for taking them as

dying declaration to form sole basis of conviction.

19. The Apex court in Shakuntala v. State of Punjab, 1995 Supp

(4) SCC 498 : 1994 SCC (Cri) 1781 has held that to base a conviction on

the basis of dying declaration, the court must satisfy that it is wholly

reliable and it should not suffer from any major infirmity. Para 5 of the

judgment is relevant and reproduced as under:-

"5. It is well-settled that to base a conviction on the basis of dying declaration, the court must satisfy that it is wholly reliable and it should not suffer from any major infirmity. If there are some infirmities then the court should examine whether they are

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fatal or whether there is any corroborating evidence which supports the prosecution case and renders the dying declaration acceptable."

20. A three Judges Bench of the Apex court in Uka Ram v. State of

Rajasthan, (2001) 5 SCC 254 : 2001 SCC (Cri) 847 : 2001 SCC OnLine

SC 635 has further held that :-

"6. Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath -- nemo moriturus praesumitur mentire. Such statements are admitted, upon consideration that their declarations are made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled great

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weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence."

21. In Tapinder Singh v. State of Punjab [(1970) 2 SCC 113 : 1970

SCC (Cri) 328] this Court held: (SCC p. 119, para 5)

"5. The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person's death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross- examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances."

22. This Court in Dandu Lakshmi Reddy v. State of A.P. [(1999) 7

SCC 69 : 1999 SCC (Cri) 1176] observed that on the fact situation of a

case a judicial mind would tend to wobble between two equally plausible

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hypotheses -- was it suicide, or was it homicide? If the dying declaration

projected by the prosecution gets credence, the alternative hypothesis of

suicide can be eliminated justifiably. For that purpose a scrutiny of the

dying declaration with meticulous circumspection is called for. It must be

sieved through the judicial cullendar and if it passes through the gauzes it

can be made the basis of a conviction, otherwise not. It was further held

that in view of the impossibility of conducting the test on the version in the

dying declaration with the touchstone of cross-examination, the court has to

adopt other tests in order to satisfy its judicial conscience that the dying

declaration contained nothing but the truth.

23. After going through the whole of the evidence, perusing the

record and hearing the submissions of the learned counsel for the parties,

we are of the opinion that the prosecution had not proved, beyond doubt,

that the dying declaration was true, voluntary and not influenced by any

extraneous consideration. The investigating agency did not take any

precaution to ensure whether the incident was suicidal or homicidal. The

probability of the deceased committing suicide has not been eliminated.

There also exists a doubt about the mental condition of the deceased at the

time she made the dying declaration. Learned trial court has failed to

appreciate the Dying Declaration in right perspective in the given

circumstances of the case.

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24. Plea of alibi has also been taken by the appellant and to prove the

same, he has examined as many as 4 witnesses. Head Constable Satyesh

Kumar Sharma (PW-1) has stated before the Court that on 04.12.2013 i.e.

the date of the incident he was posted at P.S. GRP Guna. At about 10:00 pm

the appellant came and told him that a girl had sustained burn injuries and

in that incident he has been named. This witness has further stated that

appellant told him at about 7:00 pm that he reached Guna. On this he had

contacted the concerned SHO, P.S. Mahakal and told him about the fact that

appellant is in Guna. SHO of P.S. Mahakal, Ujjain instructed him that

appellant be sent back with his relative to Ujjain. Similar statement has

been given by Electrician Mohd. Shine (DW-2) about the presence of

appellant at Guna at about 7:00 pm on 04.12.2013. There was no occasion

for the learned trial court to disbelieve the statement of Head Constable,

Satyesh Kumar Sharma (DW-1) as he is also a public servant and having no

relation with the appellant to make a false statement for screening him off

the appellant.

25. Nodal Officer, Gaurav Kapoor (DW-4) has approved call details

of mobile No.8234808252 belonging to the accused wherein he has stated

that on 4.12.2013 in the morning from 01:22 am to 1:29 am the tower

location of the aforesaid mobile number was Jaisinghpura Ujjain. From 1.34

a.m. towards the location was Begambagh, at 11:07 am it was Jaisinghpura,

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at 1:31 pm at Madhavnagar School, at 1:54 pm the location was at L.M.

Complex Tower Chowk, at 2:05 pm at Desai Nagar, Maksi Road, at 2:34

pm at Agar Road, at 2:37 pm at Pawasa, at 2:57 pm at Vijayaganj Mandi, at

3:02 pm at Tejaji Mandir post Kayatha, at 4:00 pm at village Bajvadiya,

district Shajapur, at 4:14 pm at MPSEB office, district Shajapur, at 4:17 pm

it was Panwadi district Shajapur, at 6:31 pm it was at Kumbhraj district

Guna and at 7:47 pm it was Haripur, Guna and at 7:54 pm the tower

location was Bajaj Showroom Guna and 11:50 pm it was at A.B.Road bus

stand, Guna. He has further deposed that on 04.12.2013 at about 07:02 pm

mobile tower location was Vijaypur, district Guna and on 07:54 pm its

tower location was Samadhiya Balwant Nagar, Mahavirpur in front of Bajaj

Showroom, Guna. At 9:58 pm its tower location was Hotel Shree, 12/73 AB

road in front of bus stand Guna.

26 In cross-examination of this witness, nothing has surfaced which

could dent upon the veracity of this witness. The mobile No.8234808252

which was seized from the appellant vide seizure memo (Ex.P/16) on

06.12.2013 it has nowhere been case of the prosecution that this mobile sim

number for which call detail record has been obtained is not relating to the

appellant. This plea of alibi is further proved by tower location of the

aforesaid mobile number which has already been supported by the

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statement of Satyedra Kumar Sharma (DW-1), Mohd. Shine (DW-2) and

Mohd. Shahzad (DW-3).

27. It has been held by the apex court in Sk. Sattar v. State of

Maharashtra, (2010) 8 SCC 430 : (2010) 3 SCC (Cri) 906 : 2010 SCC

OnLine SC 942 that the plea of alibi had to be proved with absolute

certainty by positive evidence so as to completely exclude the possibility of

the presence of the appellant in the particular premises at the relevant time.

The relevant paragraph 5 and 6 are reproduced below:-

"35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC 18 : 2003 SCC (Cri) 186] as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."

36. But it is also correct that, even though the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was

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correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt. Being aware of the aforesaid principle of law, the trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant."

28. It is settled position of law that defence witnesses should also be

given due weightage if their testimony is free from infirmities as has been

held by the Apex court in Munshi Prasad v. State of Bihar, (2002) 1 SCC

351 : 2002 SCC (Cri) 175 : 2001 SCC OnLine SC 1217 that the evidence

tendered by the defence witnesses cannot always be termed to be a tainted

one by reason of the factum of the witnesses being examined by the

defence. The defence witnesses are entitled to equal respect and treatment

as that of the prosecution. Relevant para 3 is reproduced as under:-

"3. Without attributing any motive and taking the evidence on its face value, therefore, it appears that the place of occurrence was at 400-500 yards from the place of Panchayat and it is on this piece of evidence, the learned advocate for the State heavily relied upon and contended that the distance was far too short so as to be an impossibility for the accused to be at the place of occurrence

-- we cannot but lend concurrence to such a submission : a distance of 400-500 yards cannot possibly be said to be "presence elsewhere" -- it is not an impossibility to be at the place of occurrence and also at the Panchayat meet, the distance being as noticed above : the evidence on record itself negates the plea and we are thus unable to record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed

NEUTRAL CITATION NO. 2024:MPHC-IND:36929

20 CRA-1418-2014

to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution -- a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses."

29. In the light of aforesaid, learned trial court has failed in

appreciating the testimony of defence witnesses and discarding them

without any cogent reasons. The testimony of defence witnesses cannot be

discarded unless there is some inherent infirmity on the face of the record.

In view of aforesaid discussion when no eye witness account is available to

support the prosecution case, no infirmity in the defence witnesses could be

pointed out by the prosecution, the Dying Declaration allegedly given by

the deceased has also not been found beyond suspicion and plea of alibi has

been properly proved to the satisfaction of this Court by the defence, which

probabilizes the defence taken by the appellant from the very beginning of

the case, therefore, we are of the view that learned trial court has committed

factual and legal error in holding the appellant guilty for murder of the