Sunday, 13 November 2016

Whether plea of ailbi is required to be proved after prosecution has proved its case?

The word alibi means “elsewhere”. The plea of alibi is
not one of the General Exceptions contained in Chapter IV of
IPC. It is a rule of evidence recognized under Section 11 of
the Evidence Act. However, plea of alibi taken by the defence
is required to be proved only after prosecution has proved its
case against the accused. In the present case said condition
is fulfilled.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2099 OF 2008
Darshan Singh 
Versus
State of Punjab 
Dated:January 06, 2016.

This appeal is directed against judgment and order
dated 02.09.2008, passed by High Court of Punjab and
Haryana, Chandigarh, whereby the High Court has disposed
of Criminal Appeals No. 209 D.B. and 568 DBA, both of 1998
and Criminal Revision No. 654 of 1998. The appeal filed by
the State qua Darshan Singh (present appellant) against his
acquittal by the trial court, was allowed and his acquittal was
reversed. The present appellant has been convicted by the
High Court under Section 302 of Indian Penal Code, 1860
(for short “IPC”), and sentenced to imprisonment for life and
directed to pay a fine Rs. 5,000/- and in default of payment
of fine he is directed to undergo rigorous imprisonment for a
further period of six months. Appellant Darshan Singh has
been further found guilty of the charge of offence punishable
under Section 324 of IPC, and sentenced to undergo rigorous
imprisonment for a period of one year and directed to pay
fine of Rs. 1,000/- with default clause directing to undergo
rigorous imprisonment for further period of two months.
2. We have heard learned counsel for the parties and
perused the papers on record.
3. Prosecution story, in brief, is that there was dispute
between complainant and his relatives on one side and
accused persons on the other side regarding their turn of
irrigating their fields. On account of this, earlier there had
been incidents of assaulting each other. In the
circumstances, both the parties were facing proceedings
under Section 107/151 of Code of Criminal Procedure, 1973
(for short “Cr.PC”) before Executive Magistrate, Faridkot. On
17.02.1995, complainant Amrik Singh (PW-1) along with Raj
Singh (PW-3), Sukhchain Singh (PW-2) , Harbans Singh (one
of the deceased), and their father Mander Singh and cousin
Gursewak Singh with maternal uncle Santa Singh (another
deceased) and Boota Singh had gone to attend the
proceedings of the court. From the side of accused Surain
Singh, Jasmail Singh, Darshan Singh (present appellant),
Jhanda Singh and Boota Singh had also come to the court on
said date. At about 11.00 a.m. both the sides started
quarrelling and had a heated exchange of words, as Surain
Singh objected to presence of Bhajan Singh who was relative
of complainant Amrik Singh and not a party to the
proceedings. He (Surain Singh), a Amritdhari Sikh, took out
his Siri Sahib (Small Kripan, a sharp edged weapon) and gave
blow to Bhajan Singh. When complainant party attempted to
separate them, Surain Singh gave Kripan blow on the person
of Mander Singh. He assaulted also on the left shoulder of
the complainant Amrik Singh, and gave two blows on the
person of Suckhchain Singh. He did not stop there and also
assaulted Harbans Singh (deceased) with Kripan. Accused
Darshan Singh (appellant) also took out his Kripan and
inflicted injuries on the person of Santa Singh (another
deceased). Accused Darshan Singh (appellant) is said to
have given blows also to Raj Singh. Pal Singh and Jhanda
Singh caught hold of Gursewak Singh, and Darshan Singh
assaulted them also. Accused Boota Singh instigated other
accused that no one should be escaped alive. The injured
were taken to Guru Gobind Singh Medical Hospital, Faridkot,
where Santa Singh and Harbans Singh succumbed to their
injuries.
4. Report of the above incident was lodged by complainant
Amrik Singh (PW-2). On the basis of it, FIR No. 14, dated
17.02.1995 was registered at Police Station, City Faridkot.
The investigation was taken up by Sub-inspector Ranjit
Singh (PW-17), who took the dead bodies in his possession,
sealed it, prepared inquest report and got sent them for post-
mortem examination. Dr. Sarabjit Singh Sandhu (PW-4)
conducted post-mortem examination on the dead bodies of
Santa Singh and Harbans Singh on 17.02.1995, and
prepared autopsy reports. The other injured were also
medically examined by PW-4 Dr. Sarabjit Singh Sandhu and
PW-5 Dr. Manjit Singh. There were injuries also on the side
of the accused, and from their side accused Pal Singh,
accused Surain Singh and accused Jhanda Singh suffered
injuries. After interrogating witnesses and on completion of
investigation PW-16 Assistant Sub-inspector Ram Singh (who
took over investigation from S.I Ranjit Singh) submitted
charge-sheet against accused persons in the court.
5. It appears that after the committal of the case it was
registered as Session Case No. 33 of 1995. On 7.7.1995,
Additional Sessions Judge, Faridkot framed charge against
all the accused, namely, Surain Singh, Darshan Singh
(present appellant), Pal Singh, Jhanda Singh , Jasmail Singh,
Boota Singh and Lachman Dass relating to offences
punishable under Section 148, 302/149 (on separate counts
of death of two persons), 307/149, 324/149, 218 and 201
IPC to which accused pleaded not guilty and claimed to be
tried.
6. Thereafter prosecution got examined PW-1 Amrik Singh
(informant), PW-2 Sukhchain Singh, PW-3 Raj Singh (all the
three injured eye witnesses), PW-4 Dr. Sarabjit Singh
Sandhu who conducted post-mortem examination, PW-5 Dr.
Manjit Singh, PW-6 Gurcharanjit Kaur, Ahalmad, PW-7
Ujjagar Singh, Steno to A.D.C. Moga, PW-8 ASI Basant
Singh, PW-9 Head Constable Shagan Singh, PW-10 Inspector
Prithvi Singh, PW-11 Prithi Pal Singh, S.S.Teacher, PW-12
Dharam Singh, Draftsman, PW-13 MHC Baljit Singh, PW-14
Dr. S.P. Singla, PW-15 Sub Inspector Shivraj Bhushan, PW-
16 Sub Inspector Ram Singh, PW-17 Inspector Ranjit Singh,
PW-18 Constable Jagjit Singh and PW-19 Satish Kalia,
Ahalmad.
7. The evidence adduced by prosecution was put to the
accused by the trial court under Section 313 of Cr.PC. In
reply to which the accused persons alleged that evidence
against them was incorrect. Appellant Darshan Singh took
the specific plea of alibi stating that on 17.02.1995 he was
attending his duty as a Laboratory Assistant in Senior
Secondary School, Janerian. Other accused took pleas of self
defence. On behalf of the defence DW-1 Satnam Kaur, DW-2
Rajinder Kumar, DW-3 Darshan Singh (Teacher in primary
school, Pakhi Khurd), DW-4 Pawan Kumar, Ahalmad, DW-5
J.V. Tiwari, DW-6 Mukhtiar Singh, DW-7 Om Parkash and
DW-8 ASI Harvinder Pal Singh were examined.
8. The trial court after hearing the parties found that
charge as against accused Boota Singh, Darshan Singh and
Lachman Dass is not proved and, as such, they were
acquitted. However, accused Surain Singh was convicted
under Section 302 of IPC for committing murder of Harbans
Singh and also under Section 307 of IPC for attempting to
murder Sukhchain Singh. He (Surain Singh) was further
convicted under Section 324 of IPC. Rest of the accused
Jhanda Singh, Jasmail Singh and Pal Singh were convicted
under Sections 302/34, 307/34 and 324/34 of IPC. After
hearing the sentence, the trial court sentenced the convicts
to various sentences.
9. Convicts Surain Singh, Jhanda Singh, Jasmail Singh
and Pal Singh challenged their conviction before the High
Court, and by the impugned order the High Court allowed
appeal of Jhanda Singh, Jasmail Singh and Pal Singh, but
appeal of Surain Singh was dismissed. The connected appeal
No. 568 DBA of 1998 filed by the State qua Darshan Singh
against order of his acquittal was allowed, and he was
convicted under Section 302 of IPC for committing murder of
Santa Singh and sentenced to imprisonment for life and
directed to pay fine of Rs. 5,000/- with default clause. He
was further convicted under Section 324 of IPC for
voluntarily causing hurt with a deadly weapon on person of
Gursewak Singh and Raj Singh and sentenced to rigorous
imprisonment for a period of one year and to pay fine of Rs.
1,000/- with default clause. Aggrieved by said judgment and
order dated 02.09.2008, passed by the High Court, this
appeal is filed by accused Darshan Singh who was acquitted
by the trial court, but order of acquittal was reversed and
was convicted by the High Court.
10. Mr. K.T.S. Tulsi, Senior Advocate, on behalf of the
appellant, has argued before us that where two views are
possible on the basis of evidence on record, the High Court
should not have reversed the order of acquittal recorded by
trial court. It is further contended that appellant Darshan
Singh was discharging his duties in the school on
17.02.1995 and was not present at the place of incident
when occurrence took place and as such, the acquittal
recorded by the trial court was not liable to be interfered
with. Our attention is drawn to the evidence adduced in
defence in support of plea of alibi.
11. On the other hand, learned counsel for the State
pointed out that in the incident in question, while Surain
Singh committed murder of Harbans Singh, the appellant
(Darshan Singh) committed murder of Santa Singh. It is
further submitted that plea of alibi taken by the defence was
correctly found false by the High Court after re-appreciation
of evidence. Learned counsel for the State referred to the
statements of injured eye witnesses.
12. We have considered rival submissions and perused the
entire record of the case. There are three injured eye
witnesses in the present case, namely, PW-1 Amrik Singh,
PW-2 Sukhchain Singh and PW-3 Raj Singh. It is a case of
day light incident. Injuries on the person of said eye
witnesses have been corroborated by PW-4 Dr. Sarabjit Singh
Sandhu, PW-5 Dr. Manjit Singh and PW-14 Dr. S.P. Singla.
Ocular testimony of eye witnesses cannot be discarded
lightly. Once the prosecution has discharged its burden, the
burden to prove that appellant Darshan Singh was not
present with other accused at the place of incident and had
gone elsewhere, lies on him. Injured eye witnesses have
assigned specific role as to how he assaulted Santa Singh
who suffered ante mortem injuries which gets corroborated
from the autopsy report of Santa Singh. There are as many
as five stabbed wounds out of the six ante mortem injuries.
The same are being reproduced below from autopsy report of
Santa Singh:-
“1. Transverse stab wound 3 x 0.5 cm was present
on the anterior side of chest on the left side, 6 cms
below and lateral to left nipple at 4.00 O’ clock
position. C.B.P was present. On dissection, it is
going in wards and medially through 6th inter costal
space, piercing the pericardium and left vertical.
Pericardial sac contains about 200 C.C of fluid
blood.
2. Transverse stab wound 3 x 0.5 cm on the lateral
side of left side of chest 6 cms lateral to the injury
no.1. It was bone deep C.B.P.
3. Transverse stab wound 2 x 0.5 cm was present
at the back of the left side of abdomen 3 cms lateral
to midline and 15 cm above the posterior superior
iliac spine of left side on dissection, the peritoneum
large intestia was cut. Peritoneal cavity contained
about 500 C.C. of fluid and clotted blood.
4. Transverse stab wound 2.5 x 0.5 cm was present
on the back of the left side of abdomen, 6 cms
lateral to the injury no.3 C.B.P. It was skin deep.
5. An oblique stab wound 1.5 x 25 cm on the back
of left side of chest, 2 cms from the midline and 20
cms below the nape of the neck, it was bone deep
C.B.P.
6. A transverse stab wound 4 x 0.5 cms on the
back of left side of chest, 5 cms from the midline
and 12 cms below the nape of the neck. C.B.P. It
was bone deep.”Page 12
Page 12 of 15
13. From the record, PW-1 Amrik Singh (eye witness)
appears to have suffered following injuries at the time of
the incident:-
“2.4cm x 1cm incised wound-10.5 cms below and
posterior to left shoulder joint. X-ray of left
shoulder joint advised.
Injury was kept under observation and duration
was within 6 hours weapon used was sharp
weapon”
Injuries were declared simple in nature as per x-ray
report and was result of a sharp weapon.”
14. Another eye witness PW-2 Sukhchain Singh found to
have suffered following injuries as per the injury report
proved on the record:-
 “1. 1.0 cm x 0.25 cm incised wound on the middle
of forehead. X-ray advised.
2. 2 cm x 1 cm incised wound on right side of
chest 17 cms from xiphisternum. Profuse bleeding
was present. X-ray advised.
3. 3 x 2 cms incised wound on right lumber
region-10 cms below injury no.2. Surgical opinion
and X-ray advised.”
15. Third eye witness PW-3 Raj Singh suffered following
injuries on the date of incident, as proved on the record:-
“1. 1.9 cm x 1 incised wound in right Gluteal
region-6 ½ cms below the right. Anterior superior
iliac spine. X-ray advised.
2. 2cms x 1 cm incised wound on right lower
chest. Bonedeep 22 cms below the right anterior,
Axillary fold-17 cms below and slightly lateral to
right memory gland. Surgical opinion was advised.”
16. Now, we come to the defence plea of appellant Darshan
Singh which was accepted by the trial court but rejected by
the High Court. There is no cavil over the fact that appellant
Darshan Singh was posted as Lab Assistant with the Senior
Secondary School, Janerian. After carefully going through the
statements of defence witnesses and other evidence on
record, we agree with the High Court that accused Darshan
Singh has taken false plea of alibi. It is proved on the record
that in the proceedings under Section 107/151 of Cr.PC
before Executive Magistrate, Faridkot, he was to be present
in said case on 17.02.1995. His presence and role is
narrated in detail by the injured eye witnesses. In view of his
role in the incident narrated by the eye witnesses, it is hard
to believe that after moving application on 16.02.1995 for
casual leave for 17.02.1995, Darshan Singh attended the
school next day in the first half and sought half day leave
thereafter. The attendance register was not seized
immediately after the incident. His plea of alibi is vacillating.
17. The word alibi means “elsewhere”. The plea of alibi is
not one of the General Exceptions contained in Chapter IV of
IPC. It is a rule of evidence recognized under Section 11 of
the Evidence Act. However, plea of alibi taken by the defence
is required to be proved only after prosecution has proved its
case against the accused. In the present case said condition
is fulfilled.
18. After scrutinizing the entire evidence on record, we do
not find any illegality in appreciation of evidence, or in
arriving at the conclusion as to the guilt of the present
appellant by the High Court.
19. Therefore, for the reasons discussed above, we find no
force in this appeal which liable to be dismissed.
20. Accordingly, the appeal is dismissed. Appellant be
taken into custody by the court concerned to make him
serve out the remaining part of sentence, awarded by the
High Court.
………………….....…………J.
 [Dipak Misra]
 .………………….……………J.
 [Prafulla C. Pant]
New Delhi;
January 06, 2016.
Print Page

No comments:

Post a Comment