2022 (1) TMI 1401 - SC - Indian Laws

Plea of alibi - fire arm injury - requirement to prove beyond reasonable doubt - discrepancy between the medical and ocular evidence - HELD THAT - There is no discrepancy between the medical and ocular evidence but too much is sought to be made out by learned Counsel for the Appellant on the doctor not opining about the distance from which the fire arm injury was caused. Further, the eye witnesses are categorical that the other Accused attacked the deceased with knives. In such a process of five persons attacking the deceased it cannot be said that the deceased would be lying in the same position and, thus, there is every possibility of injuries both at the back and front. In the nature of the incident and the testimony of the eye witnesses, a doubt must be cast on the story and not merely some aspect of the food consumption pointed out. The remaining arguments of learned Counsel for the Appellant are based on plea of defective investigation, absence of independent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal. The last aspect urged by learned Counsel for the Appellant was that the IO has referred to the antecedents of the Appellant and other Accused, which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act, 1872. The said provision stipulates that the previous bad character is not relevant except in reply, i.e., unless evidence has been given of a good character in which case it becomes relevant - despite best endeavour learned Counsel for the Appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court. The story put forth by the prosecution has been established and has not been dented by the Appellant Accused so as to cast a doubt and entitle them to benefit of doubt - Appeal dismissed.

Issues Involved:
1. Plea of alibi by Law @ Upendra Tiwari.
2. Alleged discrepancies in the testimonies of eye witnesses.
3. Alleged ante-timing of the FIR.
4. Discrepancies between the inquest report and the post-mortem report.
5. Alleged discrepancies between medical evidence and ocular evidence.
6. Alleged defective investigation and absence of independent witnesses.
7. Reference to antecedents of the accused.

Issue-wise Detailed Analysis:

1. Plea of Alibi by Law @ Upendra Tiwari:
The appellant, Law Tiwari, claimed that he could not have participated in the crime due to a fractured leg. The trial court noted that neither the x-ray plate nor the advice of Dr. M.P. Singh was produced. No papers of admission or treatment at the Garhwa Hospital were presented. The prosecution countered that Law Tiwari was absconding and was only arrested later. The court emphasized that the burden of proving the plea of alibi lies heavily on the accused, which Law Tiwari failed to discharge. The court cited precedents like Vijay Pal v. State (Government of NCT of Delhi) and Jitender Kumar v. State of Haryana to reinforce this point. Consequently, the plea of alibi was rejected.

2. Alleged Discrepancies in the Testimonies of Eye Witnesses:
The appellant contended that there were contradictions in the testimonies of the eye witnesses. However, the court found that the testimonies of Pankaj Kumar Singh (PW-6) and Subodh Kumar Singh (PW-13) were consistent and credible. The court dismissed the argument that PW-13 was a chance witness, noting that he explained his presence and could identify the accused. The court did not rely on the testimony of PW-18 due to a delay in examination.

3. Alleged Ante-timing of the FIR:
The appellant argued that the FIR was ante-timed, reaching the court a day later despite the proximity of the police station and the court. The court examined the sequence of events and timings, concluding that the FIR was registered promptly and reached the court the next morning. The court found no merit in the plea of ante-timing, citing Sudarshan and Anr. v. State of Maharashtra to emphasize the importance of timely FIR registration.

4. Discrepancies Between the Inquest Report and the Post-Mortem Report:
The appellant pointed out differences between the inquest report, which mentioned six injuries, and the post-mortem report, which listed 26 injuries, including gunshot wounds. The court clarified that the inquest report is not substantive evidence and its purpose is limited to ascertaining the cause of death. The court cited cases like Suresh Roy v. State of Bihar and Tehseen Poonawalla v. Union of India to support this view. The court concluded that the discrepancies did not undermine the prosecution's case.

5. Alleged Discrepancies Between Medical Evidence and Ocular Evidence:
The appellant argued that the medical evidence did not match the ocular evidence, particularly regarding the distance of the gunshot and the condition of the deceased's body. The court found no significant discrepancy, noting that the eye witnesses' testimonies were consistent with the medical findings. The court dismissed the argument about the deceased's food consumption, stating that it did not cast doubt on the prosecution's story.

6. Alleged Defective Investigation and Absence of Independent Witnesses:
The appellant claimed that the investigation was defective and lacked independent witnesses. The court found no reason to disbelieve the eye witnesses' credible testimonies. The court emphasized that the standard of proving the case beyond reasonable doubt does not mean finding excuses for acquittal.

7. Reference to Antecedents of the Accused:
The appellant argued that the High Court erroneously considered the antecedents of the accused, contrary to Section 53 of the Indian Evidence Act, 1872. The court noted that the reference to the accused being "dangerous" was not supported by evidence and did not influence the courts' judgments. The court found no merit in this argument.

Conclusion:
The court concluded that the prosecution's case was established beyond reasonable doubt and the appellants failed to cast any doubt on the judgments of the trial court and the High Court. Both appeals were dismissed, and the parties were left to bear their own costs.

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