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2023 (10) TMI 1211
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.... 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 received multiple injuries and eventually succumbed while receiving the treatment. PW-3 escaped this attack and took shelter in the house of Baisakhu Kewat. Kapildeo, son of Chetram, who was being taken to the hospital by his father and Chaubisram, was found close to a tree near the place of occurrence alive and was taken to a Government Hospital, Palari and was shifted to D.K. Hospital, Raipur. However, in the course of treatment, he also died, same day at about 4.55 p.m. 4.2 Post-mortem examination of the body of the deceased Chetram was conducted by Dr. R.P. Pandey (PW-11) and the post-mortem examination of Kapildeo was conducted by Dr. K.L. Gopawar (PW-10). The police reached the spot of the crime at 11.15 a.m. after reading the dehatinalishi recorded at 11.00 a.m at the instance of PW-3. 4.3 The investigation having been c....
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....e, 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) favouring and wanting, his elimination; and (d) that the accused persons were, in fact, not at the scene of the crime and their plea of alibi is probable. 9. The case of the prosecution rests primarily on the testimonies of three witnesses, namely, Choubisram PW-3; Khorbahrin Bai PW-16 and Jugbai PW-17. 10. Here only we may record that the Courts below have concurrently found the witnesses to have deposed truthfully, their testimonies to be entirely inspiring in confidence. 11. Further that the death of the deceased Chetram and Kapildeo is undisputed, with medical and scientific evidence including the post-mortem reports conducted by two doctors referred to supra (PW-10 and PW-11), confirm such fact. Deceased Chetram having sustained multiple injuries upon vital parts of the body as a result of the bombs being thrown at him also stands p....
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....rged 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 their reaching his place of shelter. To us it does not appear to be a case of prior consultation; discussion; deliberation or improvements. 15. Relevant portion of the testimony of PW-3 reads as under:- "After 2 hours someone opened the door and I came out from the place where I was hiding. Public had assembled there. But I cannot tell the names of those persons who had assembled. Because I was badly injured and I was feeling immense pain. My left eye which was perfectly alright before this incident, was completely damaged in this incident. Thereafter I dictated report of this incident to the station House Officer at the house of Baisakhu. First information report was read over to witness and he stated that this is the same report which I had dictated. First information report marked Ex. P15." 16. Significantly, this part of his testimony goes unrefuted. Even ....
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....nce. 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 appellants before us are Kamal Prasad (A-3), Shersingh (A-6) and Bhavdas (A-9). The two relevant defence witnesses for the convict-appellants before us, are as under:- 20.1 DW-1 states that A-9 is his uncle and had come to his house to go to Sandi Bazar. When the police came to arrest him he mentioned to them that he had just been returning from Bhalesur and did not have any relation with the offence. He was arrested by the police. 20.2 DW-2 submitted that on the day of the offence, A-9 went to the shop run by him at Bhalesur to purchase some tea and jaggery. The distance between Bhalesur and Sundri is 16 Kilometres. 21. In our considered view, both these 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 explai....