- (1.) It 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, unless of course, the finding reached suffers from some vice and thus violative of fundamental rules or even a definite procedural injustice going to the root of the prosecution case. (See in this context, the decision of this Court in Arjun Marik v. State of Bihar, 1994 Suppl. (2) SCC 37[2] It is on this perspective that the present appeal against the common judgment dated 28 th 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 time 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'.
(2.) The judgment under appeal stands criticised on three major counts : the first of the three counts relate to the plea to the alibi. The word 'alibi' a Latin expression means and implies in common acceptation 'elsewhere' : It is a defence based on the physical impossibility of participation of a crime 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. This Court in Dudh Nath Pandy v. State of U.P., AIR 1981 SC 911 has the following to state in regard to the plea of alibi : ".....The plea of abili postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at other place. The plea can therefore succeed only if it is shown that the accused was so far away at the place where the crime was committed..." - Distance thus would be a material factor in the matter of acceptability of the plea of alibi. Interestingly this plea as raised by Mr. Venkararamani, learned senior Counsel appearing in support of the appeal has been by reason of specific evidence as tendered before the Court by the defence witnesses. On assumption of the factum of the evidence being otherwise truthful, there appears to be some difficulty, however, in the matter of acceptance of submission of Mr. Venkataramani. The evidence on record as tendered by Raj Narain Prasad (defence witness No. 2) was to the following effect:- "2. On 27-6-80 at 12 PM a Panchayat was held in the garden of Yogendra Prasad. I went to Panchayat and told the head that I came to that a murder was committed in Nakka Tola. At that time it was not known to me as to who is murdered. 3. At that time there were Bose Sahib, Manglue Sahani, Dasai Sahni, Naga Mehto, Hira Sahni, Multan Mian and Raghnath Mehto etc. in the Panchayat. 4. When I reported then they became worried and all of them left with Head Mukhiaji. I also went. 5. On the western side of the road 25-30 yards towards East there was a dead body in the sugar cane field. There I also asked the people but I was not known as to who had killed. The dead body was at four-five hundred yards from this place of panchayat, we stayed there near the dead body till 5-51/2 o'clock. Jamadar Sahib came there after we reached there." (Emphasis supplied).
(3.) Without attributing any motive and taking the evidence on its face value, therefore, it appears that the place of occurrence was at 400-500 yards from the place of Panchayat and it is on this piece of evidence, the learned Advocate for the State heavily relied upon and contended that the distance was far too short so as to be an impossibility for the accused to be at the place of occurrence - we cannot but lend concurrence to such a submission: A distance of 400-500 yards cannot possible 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 noticed above: The evidence on record itself negates the plea and we are thus unable to record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score however, we wish to clarify that 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 of the prosecutors' witnesses.;