MUNSHI PRASAD AND ORS. v. STATE OF BIHAR

Citation: [2001] SUPP. 4 S.C.R. 25

Court: Supreme Court of India

Bench: U.C. BANERJEE, K.G. BALAKRISHNAN

Judgment text

MUNSHI PRASAD AND ORS. v. STATE OF BIHAR OCTOBER 10, 2001 [UMESH C. BANERJEE AND K. G. BALAKRISHNAN, JJ. ) Code qf Criminal Procedure, 1973 : Appeal against conviction-Offence of Murder-Concurrent finding of . fact-lntetference-When called for-Held, when . finding su:ffers . from some vice and violative qf. fundamental rules or there is de. finite procedural injustice which goes to the root of the prosecution case-Penal Code, 1860-Section 302. Section 154-FIR-Delay in . filing-Effect qf-Held, delay not . fatal if there is plausible explanation . for delay. Section I57-Delay in sending report qfFIR to Magistrate-F:ffect of- Held, it would not vitiate trial if delay is reasonable and there is acceptable explanation . for it. Criminal Trial : Technical plea-Trustworthy and credible evidence on record-Court > convinced about trut~fulness ofprosecution case-Helcl technicality ought not to outweigh the course of justice ! f technicality does not go to roiJt of prosecution case.

Appreciation of Evidence-Principles-Interested Witness-Credibility of evidence-Held, duty qf court to be more careful in scrutiny of evidence qf such witnesses-{fevidence . found trustworthy, rejection not justifiable- Minor variations and discrepancies in evidence-Effect of-Held, court should not reject such evidence if not affecting the core of prosecution case- Treatment qf witnesses-Held, defence witnesses entitled to equal respect and treatment as that of prosecution. Post-mortem report and Inquest report-D{fference between-Held, discrepancy between them neither. fatal nor even a suspicious circumstance- Both reports cannot be termed basic or substantive evidence. Words & Phrases-'Alibi'-Meaning of in common parlance. Prosecution alleged that informant (PWl) ·and his brother, the deceased, were returning to their village o_n bicycles, when they were surrounded by appellants-accused who were armed and hiding in bushes and sugar cane fields.

However, informa~t extricted himself and ran away from the place of incident raising an alarm and witnessed the assault and killing of his brother by the appellants from some distance. Other witnesses (PW1-PW4) also arrived at the place of incident and saw the appellants running away from the place of incident. Trial court convicted the appellants for committing murder and sentenced them to rigorous imprisonment for life which was upheld in appeal by the "High Court. Hence the present appeals by the accused persons. Appellants contended that specific evidence tendered by defence witnesses presented an alibi in their favour; that there is some difference between inquest report and post-mortem report creating suspicious ...

' circumstance warranting a benefit of doubt in their favour; that adverse presumption should have been drawn against the prosecution for non • production of sariah being the basic information sheet; that delay in filing FIR was·fatal to prosecution case; that it was a case of blind murder not witnessed by any person, prosecution case is fabricated and they have been falsely implicated by reason ofenmity and hostile relationship between the family of informant and the appellants; that PWs 1 to 5 _are interested witnesses as they belong to the same village and are related to each other; that no independent witnesses have been examined; and that delay in sending FIR to Magistrate under Section 157 of Criminal Procedure Code, 1973 vitiated the trial.

Dismissing the appeals, the Court HELD : L lt is now a well-settled principle of law, that in an appeal against conviction for the offence of murder, Supreme Court would be rather slow to intervene, in the event of there being a concurrent finding · of fact, tiriless of course', the finding ·reached suffers from some vice ancl thus violative of fundamental rules or even a definite procedural injustice '-going to the root of the prosecution case. [29-H; 30-A] Arjun Marik and others ~. State of 13ihar, [1994] Suppl. 2 SCC 372, relied on. 2. 1. The word 'alibi', a latin expression means and implies in MUNSHI PRASAD v. STATE 27 common acceptation 'elsewhere'. It is a defence based on the physical impossibility of participation of a cdme by an accused in placing the latter in a location other than the scene of crime at the relevant time, shortly put the presence of the accused elsewhere when an offence was committed.

Distance thus would be a material factor in the matter of acceptability of the plea of alibi. [30-C; D; F] 2. 2. In the instant_ case, the place of occurrance was 400-500 yards from the place of Panchayat. Adistance of400-500 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 notic~d above. The evidence on record itself negates the plea of alibi. [31-D; E] > Dudh Nath Pandey v. State of UP. , AIR (1981) SC 911, relied on. 3. There is some difference between the inquest report and the post- - mortem report having due regard to the injuries as found on the body of the deceased. A mere omission of a pa~icular injury or indication therein ofan ad~itional one cannot however invalidate the prosecution case.

Preparation of an inquest report is a part of the investigation within the meaning of the Criminal Procedure Code and neither the inquest reportnorthe post-mortem report can be termed to be abasic evidence or s~bstantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. Itis the doctor's statement in Court, which has the credibility of a substantive evidence and not the postmortem report. [31-H; 32-A; 34-E; F] Balaka Singh_ and Ors. v. The State of Punjab, AIR (1975) SC 1962, cited. 4. Non-production ofa substantive pieceofevidence can under certain circumstances bringforth anadverse inference, but not in the presentcontext. Technicality ought not to outweigh the course of justice on the face of trustworthy credible evidence on record and more so when the failure to produce does not go to the root of the prosecution case.

[35-A] 5. It is well settled that mere delay in filing FIR cannot be said to be fatal to a criminal prosecution. First Information Report cannot but be termed to be the starting point and thus sets in motion a criminal prosecution. Strictly speaking it is of no consequence in the event the FIR has been delayed with a plausible explanation though on the factual score it is not even so. (35-B; C; 36-B] Apren Joseph alias Current Kunjukw~ju & Ors. v. The State of Kerala, AIR (1973) SC 1 relied on. 6. 1. It is the predominant duty of Court to. be more careful in the matter of scrutiny of the evidence of interested witnesses and if on such a scrutiny it is found that the evidence on record is otherwise trustworthy, question of rejection of the same on the ground of being interested witnesses would not arise.

It is the totality of the evidence, which matters and if the same creates a confidence of acceptability of such an evidence, question of rejection on being ascribed as 'interested witness' would not be justifiable. (40-F; G; H] ..... 6. 2. Records depict that PWs 1 and 2 are independent witnesses. The corss-examination of these two witnesses, though effected extensively, has not. yielded any benefit to the appellants and the evidence remained t! )tally unshaken and thus worthy of acceptance by a Court of law. The evidence of PWs 3, 4 and 5 stands corroborated by two independent witnesses. The evidence on record is worth its credence and trustworthy,. as such creates a confidence in the mind of the Court. (38-B; D; E] 7. It is the quality of the evidence and not the quantity, which is 'required.

If the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in number of witnesses cannot be termed to be a requirement for the case~ (40-D; E] 8. While appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the. core of the prosecution case, ought not to pr! )mpt the court to reject evidence in its entirety. If the general tenor of. ·the ~vidence given by the witness and the trial court upon appreciation. of evide~ce forms opinion about the credibili~y thereof, in the normal circumstances the Appellate Court would not be justified to review . . . it once ~ain ~ithout justifiable reasons. (38-F] State o. f U. P. v. M. K. Anthony, [1985] 1 SCC SOS and Leela Ram v. State of Haryana, (1999] 9 SCC S2S, relied on. 9. 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. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses .. at par with that of the prosecution-a lapse on the part of the defence witness cannot be differentiated and be treated differently than that o( the prosecutors' witnesses. [31-F; G] 10. While it is true that Section 157 of the Criminal Procedure Code, 1973 makes it obligatory on the Officer Incharge of the Police Station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and Cliscard an otherwise positive and trustworthy evidence on record. Technicality ought not to ...

outweigh the course of justice- if the Court is otherwise convinced and has come tO a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. The statutory obligation warrants utmost promptitude and in the event of availability of sotne explanation therefore, which is otherwise accept&! >le as well, question of prosecution being traintcd would not arise. FIR set~nhe investigation rolling and in the event of there being some delay somewhere and as noticed above with the acceptable explanation, the delay cannot be said to vitiate the trial by reason therefor. [42-G; ff; 43-A; 44-F; G] Shiv Ram and Am: v. State of U. P. , [1998) 1 SCC 149 and State of Kamataka v. Moin Patel and Ors. , AIR (1996) SC 3041, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 491-492 of 2000. From the Judgment and Order dated 28. 7. 90 of the Patna High Court in Crl. A. No.

590 and 686 of 1984. R. Venkataramani and Satya Mitra Garg for the appellants. Saket Singh for B. B. Singh for the Respondent The Judgment of the Court was delivered b~ BANERJEE, J. It is now a well-settled principle oflaw, that in an app~al against conviction for the offence of murder, Supreme Court would be rather slow to int~rvene, in the event of there being a concurrent finding offact, unless of course, t. he finding reacf? ed·~uffers from some vice and thus viOlative of fundamental rules or even a definite procedural irijus. tice going to the root of the prosecl1tion case. (See in this ~ontext, the decisi~n _of this Court i,ri Ar:jun Marik and others V. Sfate of /Jihar, [i994] Suppl. 2 sec p. 372. It is on this .. perspective that the pr~sent appeal against the. common judgment dated 28th . July, 1999 passed by the High Court of Patna in Crl. A. No. 590 of 1984 and . . . . .. . . , " . , •;:, 686 of 1984 shall have to be considered. Before adverting to the contentions .

in support of the appeal, in the·matter in issue_, a-note·of. caution,shall have to be kept in mind, as has been administered by this Court from t~me to time, that scrutiny of evidence in a murder trial should be effected with more than ordinary care so as not to affect 'dispassionate judicial scrutiny'. The judgment under appeal stands criticised . on tqre~ major cou. nts: the first of the three counts relate lo the plea of aljbi. The. word 'alibi', a L;;ttin expression. means and implies in commqn acceptation 'elsewhere' : It is a defence based on the physical impos~ibility of Participatio~t of a crime by an accused in placin,g t~e ! atter i~ a. location o~her th~n the scene of crime that he had prepared · the inquest report (Ext. 5) at 5. 30 PM and has obtained the signatures of the witnesses on it and then he sent the deadbody for Postmortem Examination. He also made some seizures at the P. O. and prepared the seizure list (Ext. 4) at the place of occurrence at 17.

15 hours and he sent the deadbody for Postmortem Examination through a constable by preparing a forwarding report (Ext. 6). Moreover, according to PW 7 he had made over charge of the investigation to another Police Office PW 8 on 28th June 1980 and then on taking up the investigation PW 8 Arun Kumar Singh had also inspected the P. O. and also recorded the statments of PW 6. So, it is obvious that not only the Fard Beyan was prepared; rather the entries were made in the station diary also at the Police Station and subsequently after taking over the charge from the first 1. 0. (PW-7), PW 8 also took up further investigation on 28. 6. 1980. It is, therefore, clear that the investigation was promptly taken up and the investigation promptly proceeded. It is also significant to note that PW 8 happended to be the Officer Incharge of the Police Station and it was his duty to send the FIR to court, but as he had proceeded for the place of occurrence on 28th and he remained there till 29. 6.

80, as stated by him, the FIR could not be dispatched iii time. In this view of the matter, simply because the FIR in this case was received in the court of the Chief Judicial Magistrate with delay it cannot be said that the FIR in this case is not genuine or that it is tainted or that the prosecution case should be viewed with suspicion. " As noticed above, the statutory obligation warrants utmost promptitude and in the event of the delay not being unreasonable one and in the event of availability of some explanation therefore, which is otherwise acceptable as· well, question of prosecution being tainted would not arise. FIR sets the investigation rolling and in the event of there being some delay somewhere and as noticed above with the acceptable explanation, the delay cannot be said to vitiate the trial by reason therefor. On the wake of the aforesaid, we are thus unable to record our concurrence to the submissions in support of the appeals.

The appeals thus have no mierit and hence are dismissed. A. K. T. Appeals dismissed.