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TMI Blog2023 (10) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution more so in view of the injuries sustained by him; the place of occurrence being a remote village area and that the version of events was dictated to the police by this witness only upon their reaching his place of shelter. To us it does not appear to be a case of prior consultation; discussion; deliberation or improvements. There are nothing emanating which would credibly suggest that the time gap between the occurrence of incidence and registration of the FIR is unjustified - Resultantly, the first contention of the convict appellants must necessarily be answered in the negative. Plea of alibi - HELD THAT:- Both the defence witnesses do not conclusively establish the plea of alibi, based on the principle of preponderance of probability as their statements stand unsupported by any other corroborative evidence. Not only that, no reason stands explained in such testimony for A-9 having travelled from Bhalesur to Sundri in order to go to Sandi Bazar. It is a matter of record that A-9 is a resident of Bhalesur where he resided with his family. He owned farms in Sundri. The family of A-9 was not examined to substantiate the claim of such travel. For those reasons, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. This appeal calls into question the correctness of a judgment and order passed by the High Court of Chhattisgarh in Criminal Appeal No.596 of 1992 by which the guilt of the accused and the sentence of imprisonment imposed in Sessions Trial No.198 of 1988 vide a judgment dated 11.05.1992 stands confirmed. 2. Challenging their conviction, before us are three convict(s) - appellants, namely, Kamal Prasad (A-3); Shersingh (A-6); and Bhavdas (A-9). 3. The convict-appellants stand convicted of having committed an offence punishable under Sections 148, 302 read with 149, 307 read with 149, Indian Penal Code, 1860 [For Brevity, IPC] and Sections 4/5 of the Explosive Substance Act, 1908 under which the sentence awarded varies from rigorous imprisonment for 3 years to life imprisonment, all to run concurrently. BACKGROUND 4. Facts, as they emerge from the judgments of the Court below are: 4.1 On 17.04.1988 one Chetram was taking his son Kapildeo @ Guddu to the hospital for treatment with one Choubisram (PW-3) as a pillion rider. Upon reaching the house of accused Darasram, 11 persons attacked them with country made bombs as also Laathis and tabbal. Chetram receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court that since most of the witnesses were close relatives or interested witness, hence their testimonies could not be relied upon, which contention was not accepted, not only in view of the unimpeachable creditworthiness of the witnesses, fully inspiring in confidence, but also in the light of principles of law enunciated by this Court. On facts, the Court also observed that PW-3, is not a relative at all, and Khorbahrin Bai (PW-16) although is a relative of the deceased but is not a close relative. Also, even though PW-17 is the wife of the deceased, nothing elicited prompting her testimony to be unbelievable. THE PRESENT APPEAL 8. Before us, the aforesaid convict-appellants have assailed the impugned judgment on four fronts- (a) Inordinate delay in filing of the First Information Report (F.I.R.) (Ex.15) introduces to the case, the possibility of improvements thereby casting doubt on the version of the prosecution; (b) the testimonies of the witnesses of the prosecution being contradictory, hence unreliable; (c) the deceased being a history-sheeter, having numerous cases pending against him, hence equal probability that someone other than the convict(s)-appellant(s) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Depak Anr [2023 SCC OnLine 1059] has observed that if the prosecution attempts to improvise its case stage by stage and step by step during the intervening period, it would be open for the accused to contend that the delay was fatal to the proceedings and the same was done to stave off proceedings against the accused . 14. In respect of the first contention put forth by the convict-appellants it is seen from the record that the FIR was registered about two hours after the incident having taken place on 17.04.1988 at about 08.00 a.m. The document itself records the time of incident as being 8.15 a.m. and the time of report as being 11.00 a.m. The testimony of PW-3 at whose instance the FIR was recorded, shows that out of fear and having sustained numerous injuries, he ran from the place of occurrence and hid in the house of Baisakhu Kewat and only emerged therefrom two hours later. In such a situation, delay in filing of the FIR cannot be said to be fatal to the case of the prosecution more so in view of the injuries sustained by him; the place of occurrence being a remote village area and that the version of events was dictated to the police by this witness only upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce under Section 11 of the Indian Evidence Act, 1872. 19.2 This plea being taken does not lessen the burden of the prosecution to prove that the accused was present at the scene of the crime and had participated therein. 19.3 Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden. 19.4 The burden to establish the plea is on the person taking such a plea. The same must be achieved by leading cogent and satisfactory evidence. 19.5 It is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the spot of the crime. In other words, a standard of strict scrutiny is required when such a plea is taken. 20. We notice that the defendants have laid certain evidence attempting to indicate their presence being at a place other than the spot of commission of the offence. The statements of four witnesses, namely, Sonchand DW-1; Jageshwar Prasad DW-2; Ramadheen DW-3; and Parsu Das DW-4 form part of record. However, DW-3 testifies to the whereabouts of accused Sandas and DW-4 does so for accused Anand Ram, both of whom the present case does not concern as the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the presence of the accused on the spot of the crime; the death of Chetram; a blast having taken place; and the accused being the assailants. A perusal thereof reveals PW3 to have categorically deposed that Kamal (A3) threw a bomb on him and deceased Chetram. He also stated the other two accused Shersingh (A6) and Bhavdas (A9) were also present at that time. PW16 has named all three accused persons, attributing upon them the act of hitting the deceased with shovels and lathis and further stated that accused Kamal hurled abuses at the said witness and the others present alongside, prompting them to run away from that place. She, however, does not ascribe particular roles to any of the accused as to who had hit the deceased with a lathi or who did so with a showel. Jugbai PW-17 deposed that the three accused before us, as well as others had lathis and shovels with them and they had challenged her presence there forcing her to run away. She stated that she along with others had witnessed the incident from near the house of one Samaru and that she had seen the accused beating the deceased. Therefore, we find no force in the contention that the testimonies relied on by the prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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