IN THE COURT OF 1st ADDITIONAL
SESSION & DISTRICT JUDGE, FIROZABAD
SESSION TRIAL NO. 304 of 2007
State of U.P. Versus Murari Lal and others
Case
Crime No. 07 of 2007
Under Section 302, 376 I.P.C.
Police Station- Khairagarh
District- Firozabad
WRITTEN LEGAL SYNOPSIS
There is no basics of present
criminal trial against suspected accused, as defense version placed by
investigations trice was denounced by prosecution by observing that it would be
seen during trial, per se illegal– Why from
the stage of charge to conviction (or acquittal), when F.I.R. and post
mortem are anti Time, No Place of Occurrence of crime, No time of Incidence of Rape with murder or
motive not ascertained, ocular version inconsistent with discrepancy with
medical evidence, no medical Evidence in
support of Rape Charges, No spermatozoa found, voluntarily D.N.A. Test also failed in Hyderabad and material contradiction in implicating
suspected accused for murder, they have been named at belated stage on account
of taking revenge grudge of conviction of Father of Informant, just to wreck
vengeance, despite corroboration of plea of Alibi! Two brothers and one nephew
attended marriage ceremonies, which were taken note, but the despite defense
version fully accepted by different investigating officers, but, why it was
left to court to be examined?
The
Latin word alibi means "elsewhere" and that word is used for
convenience when an accused takes recourse to a defense line that when the
occurrence took place he was so far away from the place of occurrence that it
is extremely improbable that he would have participated in the crime. It is
basic law that in a criminal case, in which the accused is alleged to have
inflicted physical injury to another person, the burden is on the prosecution
to prove that the accused was present at the scene and has participated in the
crime. The burden would not be lessened by the mere fact that the accused has
adopted the defense of alibi. The plea of the accused in such cases need be
considered only when the burden has been discharged by the prosecution
But
once the prosecution succeeds in discharging the burden it is incumbent on the
accused, Criminal Appeal No.209-DB of 1998 17 who adopts the plea of alibi, to
prove it with absolute certainty so as to exclude the possibility of his
presence at the place of occurrence. When the presence of the accused at the
scene of occurrence has been established satisfactorily by the prosecution
through reliable evidence, normally the Court would be slow to believe any
counter evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a quality and
of such a standard that the Court may entertain some reasonable doubt regarding
his presence at the scene when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt. For that purpose,
it would be a sound proposition to be laid down that, in such circumstances,
the burden on the accused is rather heavy. It follows, therefore, that strict
proof is required for establishing the plea of alibi. This Court has observed
so on earlier occasions (vide Dudh Nath Pandet v. State of Uttar Pradesh,
(1981) 2 SCC 166: AIR 1981 SC 911; State of Mahrashtra v. Narsingrao Gangaram
Pimple, AIR 1984 SC 63)."
Indian Evidence
Act, 1872 ― Section 11 ― Plea of alibi ― Murder case ― Plea of alibi is to be
established by accused who takes it ― Accused can do so either by adducing
necessary evidence or even from evidence of prosecution oral as well as
documentary ― If Court accepted plea of accused then evidence of even eye-witness
will have to be discarded. [Para 15] B. Indian Evidence Act, 1872 ― Section 11
― Plea of alibi ― Murder case ― Judgement adduced by defense in support of plea
of alibi ― Evidentiary value ― Said judgement in other criminal case not set
aside either by the same Court or by Superior Court ― It could not be ignored
on ground that it was obtained by fraud. [Para 17] C. Indian Evidence Act, 1872
― Section 3 ― Eye-witness ― Testimony of ― Murder case ― Absence of names of
assailants in inquest report and in brief facts report prepared by
investigating officer ― Casts a serious doubt about truthfulness of the account
of incident given by star eye-witness. [Para 12] D. Indian Evidence Act, 1872 ―
Section 11 ― Plea of alibi ― Murder case ― Evidence supporting plea of alibi ―
Appreciation of ― Entry in DD Register showing arrest of accused in other
criminal case ― No evidence adduced by prosecution to rule out the possibility
of tearing of pages from DD register and replacing those pages with new one
after the same had been seized by investigating officer ― No finding of trial
court in any case that any of the accused was responsible for tampering of DD
register ― Finding of trial court that entry of arrest of appellant in DD
register of other police station was false ― Cannot be sustained. [Para 21] E.
Indian Penal Code, 1860 ― Section 300 ― Murder ― Proof ― F.I.R. was ante-timed
― Absence of names of assailants in inquest report and other papers prepared by
I.O. casts a serious doubt about truth fullness of account of incident given by
star eye-witness ― Plea of alibi taken by accused by supported by cogent and
reliable evidence ― Recovery of weapons of offence is highly doubtful and
unreliable ― Appellants entitled to be acquitted.
Binay Kumar Singh vs. State of Bihar, 1997 AIR(SC) 322, regarding the plea of alibi held as
under:- "We must bear in mind that alibi is not an exception (special or
general) envisaged in the Indian Penal Code or any other law. It is only a rule
of evidence recognized in S.11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant. Illustration (A) given under
the provision is worth reproducing in this context:
`The question is
whether A committed a crime on a certain date; the fact that on that date, A
was at Lahore is relevant."
The Court must find Guilty, but should
have acted upon Contest Plea of alibi
Before the court accepts a plea of guilty or no contest, the
defendant must be placed under oath and it must be determined that the
defendant understands:
His constitutional rights, the nature of the charges to
which the defendant is pleading not guilty, the waiving of the trial, right
against self-incrimination and right to cross-examination of accusers The
consequences of a plea of guilty or no contest including, any possible
incarceration. The court must also determine that the plea was made voluntarily
and did not result from force, threats, or promises. Before entering a judgment
on the plea, the court must first determine that there is a factual basis for
the plea. The court must independently investigate that there is some
reasonable cause to believe the defendant committed the crime. The court
may satisfy this inquiry through statements and admissions from the defendant
or his counsel, through police reports, or through preliminary hearing. For purposes of sentencing a defendant
innocent suspected, a plea of no contest is equivalent to a plea of
guilty.
The circumstances from which an inference as
to the guilt of the accused is drawn have to be proved beyond reasonable doubt
and have to be shown to be closely connected with the principal fact sought to
be inferred from those circumstances.
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 been led in the present case. We may also notice
here at this stage the proposition of law laid down in the case of Gurpreet
Singh Vs. State of Haryana, (2002) 8 SCC 18 as follows: This plea of alibi
stands disbelieved by both the courts and since the plea of alibi is a question
of fact .
Wherein we have tried to make law as
understandable as possible to anyone who finds himself in the throes of a trial
as an accused/complainant or a witness.
Criminal Trial – the Procedure is governed by the CrPC,
1973, there are three basic stages to it, which normally occur in the same
order viz. Investigation (where evidences are to be collected), Inquiry (A
judicial proceeding where judge ensures for himself before going on trial, that
there are reasonable grounds to believe the person to be guilty) & TRIAL.
The term ‘Trial’ has not been defined in the CrPC, however is commonly
understood to mean – a judicial proceeding where evidences are allowed to be
proved or disproved, and guilt of a person is adjudged leading to a acquittal
(an exoneration from charge) or a conviction.
Trials are normally divided into Warrants Trial & a
Summons Trial. We have taken warrants trial to be the model here, as the same
is employed in most offences (see Theft/Rape/Murder/Kidnapping/Cheating etc.).
A Summons trial is an abridged form of warrants trial, where some proceedings
are omitted to ensure swift process but at the same time basic postulates of
fair trial are retained. Warrants trial is done for offences punishable with
imprisonment exceeding 2 years, summons for other minor offences.
A Criminal Trial starts with framing of charges, if a person
is not discharged – trial begins, by framing a charge (nothing but a specific
accusation against the accused) and reading and explaining it to him (So that
he knows what he is to face). After framing of charges the judge proceeds to
take the ‘plea of guilt’ which is an opportunity to the accused to acknowledge
that he pleads guilty and does not wish to contest the case. Here the judge’s
responsibility is onerous, he has to, first ensure – plea of guilt is free and
voluntary (why is a man speaking against his interest?) secondly – he has also
to ensure that if there had been no plea of guilt – was the prosecution version
if unrebutted – would have led to conviction. If both the requirements are met
– then judge can record and accept plea of guilt and convict the accused after
listening to him on sentence.
After plea of guilt is taken, if accused pleads ‘not guilty’
or court does not accept his plea of guilt, trial moves on – prosecutor then
explains to the court the basic outline of the case and what evidence he
proposes to lead in order to prove the same. He asks the court to summon
witnesses so that court can record their evidence. As the prosecution has to
start leading evidence to bring home the offence to the accused – it is said
‘The Burden of Proof lies on the prosecution’. The basic rule is whoever
asserts the affirmative of an issue has the burden to prove facts on which the
accused’s liability depends, and this burden of proof – is not a light burden –
the prosecution has to prove that the accused is guilty beyond reasonable
doubts. This is primarily for two reasons:
i) A person’s (accused’s) life and liberty is involved.
ii) and the state with the investigative machinery at its
disposal is sufficiently armed to get good evidence which a individual would
not have.
So now since the BOP is on the prosecution it has to prove
facts which incriminate the accused. When witnesses for the prosecution are
called they are first examined by the prosecutor – then cross examined by the
defense advocate, and with the leave of the court prosecutor can again examine
to clarify the loopholes exposes during cross.
After the prosecution has led its evidence – court asks the
accused to himself enter the witness box (not to give evidence) but in order to
explain circumstances that appeared against him – he has given an opportunity
to give personal explanations. This is a remarkable manifestation of Audi
Alteram Partem where the court makes a direct dialogue with the accused to know
what his take is. This is not a chance to the court to beguile or cross examine
the accused. Any answer given by accused is not to be used as evidence against
him but the court may take into consideration to adjudge overall
trustworthiness of the case. This is done u/s 311 CrPC, after the examination.
If the court feels that prosecution has not successfully brought home the guilt
– it may acquit – else if it feels that they have sufficiently discharged their
burden – then it asks defense if it seeks to lead evidence, and the same cycle
again. Now after evidence from both sides is recorded. Parties then make
arguments on the same, and in the end court pronounces the judgment.
In case of Acquittal – the accused is set at liberty (if in
custody). In case of conviction – the punitive dilemma begins as Justice
Krishna Iyer called it – the Court has to fix another hearing to decide on the
quantum of sentence. Here the prosecution as well as the defense can lead
evidences that would have been fatal earlier, in order to aggravate or mitigate
the punishment. Previous criminal background/Bad Character/Reprehensible
Motive/Cruel/Diabolical Conduct – may aggravate the sentence on the other hand
– /First Time offender/No premeditation/Capable of Reform are some factors
which move the court to give a lenient sentence.
Here the court gives equal leverage to the ‘Crime’ as well
as the ‘Criminal’. Earlier the gravity of crime used to be the sole criteria –
however in recent times, there has been a definitive shift of focus from crime
to criminal which manifests growing importance of reformation as the end of
punishment. The Court at this stage would also consider whether the accused is
entitled to the benefit of admonition. It
is to be noted that the explanation when offered by I.O. on being questioned on
the aspect of delayed examination, by the accused has to be tested by the Court
on the touchstone of credibility. If the explanation is plausible then no
adverse inference can be drawn. On the other hand, if the explanation is found
to be implausible, certainly the Court can consider it to be one of the factors
to affect credibility of the witnesses who were examined belatedly. It may not
have any effect on the credibility of prosecution's evidence tendered by the
other witnesses.
The court has
powers to examine the accused at any stage of inquiry or trial for the purpose
of eliciting any explanation against incriminating circumstances appearing
before it. However, it is mandatory for the court to question the accused after
examining the evidence of the prosecution if it incriminates the accused. This
examination is without oath and before the accused enters a defense. The
purpose of this examination is to give the accused a reasonable opportunity to
explain incriminating facts and circumstances in the case. If after taking the
evidence for the prosecution, examining the accused and hearing the prosecution
and defense, the judge considers that there is no evidence that the accused has
committed the offence, the judge is required to record the order of acquittal.
However,
when the accused is not acquitted for absence of evidence, a defense must be
entered and evidence adduced in its support. The accused may produce witnesses
who may be willing to depose in support of the defense. The accused person is
also a competent witness under the law. The accused may apply for the issue of
process for compelling attendance of any witness or the production of any
document or thing. The witnesses produced by him are cross-examined by the
prosecution.
The accused person
is entitled to present evidence in case he so desires after recording of his
statement. The witnesses produced by him are cross-examined by the prosecution.
Most accused persons do not lead defense evidence. One of the major reasons for
this is that India follows the common law system where the burden of proof is on
the prosecution, and the degree of proof required in a criminal trial is beyond
reasonable doubt. There were several
discrepancies between the informant’s statements and the prosecution's case in
support of such concoction. The prosecution gathered all such information’s
regarding participation of the suspected Accused person in different marriage
ceremonies, even before the date of alleged crime and even thereafter, as none
of the suspected accused were present in village on the date of disappearance
of deceased Km. Bharti, from the probable place of her play ground on 11.2.2005
at about 7 P.M. on wards, where the
defendant denies the charges against him. Even in the Charge sheet
submitted by the police after reinvestigations twice by local police and finally
by C.B.C.I.D. deployed for impartial investigations, it has been stated the defense plea of alibi supported by number
of evidences regarding absence of all the three suspected accused shall be
determined by the court during trial, but had submitted the charge sheet simply
on account of the fact that these names
came to the notice of the informant on the information gathered from a chance
witness purposely inducted due to the grudge
of the informant by his Nephew namely Hari Shankar on 7.3.2005 by the
accused themselves, as there remain no suspicion against them prior to the said
date. The burden remains on the state government to prove its case beyond a
reasonable doubt. Musnshi Lal, the father of the informant, and the great grand
father of deceased Km. Bharti himself
is hardened criminal and a History Sheerer having his name
recorded in Register No. 8 amongst the other hardened criminals at Police
Station Khairgarh. The Informant was also the accused in some cases. Thus there
was enmity with other people, who may commit the heinous crime of committing
murder of innocent child.
A plea entered by a defendant that does not admit guilt,
while allowing the defendant to deny the alleged facts in their categorical
statements of number of the witness participating in the two different marriage
ceremonies taken place in the far distant places from village lallaie in P.S.
Khairgarh in pre trial stage by the prosecution. However contest plea
differs from a guilty plea because it cannot be used against the defendant in criminal
proceedings The contest plea of the
alibi and totally unconcerned with the alleged crime cannot be used against the
defendant. A no contest plea must be made with the consent of the court.
If the defendant refuses to enter a plea or does not appear, the court must
enter a plea of not guilty.
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