Uttarakhand High Court
Jasveer vs State Of Uttarakhand And Ors on 10 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.91 of 2011
Jasveer & another ....... Appellants
Versus
State of Uttarakhand & others ...... Respondents
Mr. Vivek Shukla, Advocate, for the appellants.
Mr. Nandan Arya, Dy. Adv. General, for the State/respondent no.1.
Mr. Ramji Srivastava and Mr. Rajendra Singh, Advocates for
respondent nos.2 to 5.
With
Government Appeal No.42 of 2011
State of Uttarakhand ....... Appellant
Versus
Naresh & others ...... Respondents
Mr. Nandan Arya, Dy. Advocate General, for the State/appellant.
Mr. Ramji Srivastava and Mr. Rajendra Singh, Advocates for the respondents.
Dated when reserved: June 16, 2017
Date of Delivery- July 10, 2017
Coram: Hon'ble Rajiv Sharma , J.
Hon'ble Sharad Kumar Sharma , J.
Per: Hon. Rajiv Sharma, J.
Since the common questions of law and facts are involved in both these appeals, the same have been taken up together and decided by this common judgment.
2. These appeals are directed against the judgment and order dated 16.3.2011 rendered by the Additional Sessions Judge/Second FTC, Haridwar in 2 Sessions Trial No.286/99, whereby the accused- respondents, namely, Naresh, Suresh, Ashish @ Shesh Raj and Rajendra, who were tried with and charged u/s 307/34, 323/34, 324/34 and 504 IPC, were acquitted by the Trial Court.
3. Criminal Appeal No.91 of 2011 has been filed by Jasveer Singh and Tej Singh while the State has filed the Government Appeal No.42 of 2011.
4. Case of the prosecution, in a nutshell, is that PW4 Jasveer Singh has lodged the FIR on 27.05.1998 at 2:40 PM with the averments that on 26.05.1998 at 6 PM, his brother Tej Singh and nephew Pradeep @ Titu were working in the sugarcane field. In the meantime, accused Naresh, Suresh, Ashish and Rajendra came on the spot. They were armed with Tabal, iron rod, stick and axe. They attacked the brother and nephew of complainant due to which victims received grievous injuries. On hearing the noise, Jasveer Singh along with Ram Swaroop, Karan, Ramesh and Subhash came on the spot. They also witnessed the occurrence and saved the victims from the clutches of accused. The injured were taken initially to the Laksar Hospital but taking into consideration the grievous nature of injuries, they were taken to the Govt. Hospital, Haridwar. PW5 Dr. Ardhendu medically examined the injured persons.
5. Matter was investigated and the Challan was put up after completing all the codal formalities.
6. Prosecution has examined as many as eight witnesses in support of its case.
37. Thereafter, the statements of the accused were recorded u/s 313 Cr.P.C. They have examined DW1 P.K. Behl, DW2 K.L. Kureel, DW3 Jaipal Singh and DW4 Sudhir Kumar Jatav in their defence.
8. The Trial Court, by the impugned judgment, has acquitted the accused/respondents. Hence, these two appeals have been filed before this Court.
9. Learned Counsel appearing for the complainant as well as learned Deputy Advocate General, appearing for the State, have vehemently argued that the prosecution has proved its case against the accused- respondents beyond reasonable doubt.
10. On the other hand, learned Counsel appearing for the accused/respondents has supported the judgment dated 16.3.2011.
11. We have heard learned Counsel for the parties and perused the impugned judgment as well as the entire record very carefully.
12. PW1 Tej Singh is the injured witness.
According to him, on 26.5.1998, he along with his son was working in sugarcane field. In the meantime, accused came on the spot. Accused were bearing grudge against them. Suresh was carrying Tabal, Naresh was carrying a stick, Rajendra was having an axe and Ashish was having Baari (an iron rod). The accused entered the field using abusive language and attacked him and his son with the intention to kill them. His son received the injuries. When the alarm was raised, Ram Swaroop, Karan, Subhash and Ramesh came on the spot. These 4 people saved him and his son from the clutches of accused. He along with his son Pradeep was brought at Primary Health Center, Laksar, from where, they were referred by the doctor to the Government Hospital, Haridwar. In his cross-examination, he admitted that he was charged with an offence of eve-teasing Santosh and hitting her by Palkati. According to him, it was a false case.
13. PW2 Pradeep Singh is another injured witness. He has corroborated the statement of PW1 Tej Singh. He deposed that on 26.5.1998 at 6 PM, when he was working in his sugarcane field, the accused, armed with Tabal, Axe, Stick and Baari reached the spot. The accused, in order to kill him and his father, caused grievous injuries to them. The alarm was raised. Ram Swaroop, Karan, Subhash, Ramesh etc. had come on the spot. He and his father were taken to Laksar Hospital and thereafter to Haridwar Hospital.
14. PW3 Ram Swaroop is the eyewitness. He has deposed that on the day of occurrence, he heard the noise on the spot at 6 PM. He saw Suresh Kumar armed with Tabal, Naresh with a stick, Ashish with a Baari while Rajendra was armed with an axe. The accused administered beatings to Tej Singh and his son Pradeep. Tej Singh collapsed. Jasvir, Subhash and Karan also reached the spot. In his cross-examination, he deposed that the accused were hitting the victim by the weapons carried by them.
15. PW4 Jasvir Singh is another eyewitness. According to him, there was some family dispute. A Non-
5Cognizable Report (NCR) was lodged against the accused on 12.9.1998. The occurrence is of 26.5.1998 at about 6 PM when he was working in the field and his brother Tej Singh and nephew Pradeep were irrigating their sugarcane field. Accused came on the spot armed with Tabal, Baari, axe and a stick. The accused attacked the victims with the intention to kill them. Victims raised the alarm, hearing which, Ram Swaroop, Karan, Subhash, Ramesh etc. had come on the spot.
16. PW5 Dr. Ardhendhu has medically examined Pradeep Singh. According to him, injury no.1 of Pradeep was grievous in nature. He also medically examined injured Tej Singh. Injury nos.1, 2, 10 and 14 of Tej Singh were kept under observation. According to him, the injuries could be inflicted by a sharp edged weapons i.e. Tabal/Axe. Injury no.2 sustained by Tej Singh was grievous in nature.
17. PW6 Dr. R.K. Pandey deposed that Tej Singh was referred for X-ray examination. According to the X- ray report, the Skiagram showed the fracture of right clavicle bone and 2nd and 3rd ribs on right side. The X- ray report was duly proved.
18. PW7 Constable Ramdhan Singh has registered the first information report.
19. PW8 S.I. Satish Verma is the investigating officer of the case. He recorded the statements of witnesses. He reached the spot. He did not notice any bloodstains on the spot. He recommended the injured for x-ray examination.
620. DW1 P.K. Behal, produced by the accused, has stated that on 26.5.1998, he was posted as Assistant Commissioner, Saharanpur. Suresh Chand Saini was working as a Stenographer in the office. He has marked the presence of Mr. Saini on 26.5.1998 from 10 AM to 5 PM. However, in the cross-examination, he has admitted that he did not bring the original Attendance Register. He did not bring even the application. He further deposed that Suresh Chand Saini has taken charge of the office on 21.5.1998.
21. DW2 Sri K.L. Kureel has deposed that on 26.5.1998, he was posted as a Trade Tax Officer in Sarsawa Check Post. Accused Shesh Raj (Ashish) was posted with him at the Check Post from 8 AM of 26.5.1998 till 8 AM of 27.5.1998. In the cross- examination, he has admitted that the original register was not produced before him. He also admitted that his signatures are not on the cuttings made in Ex.Kha.5. He also admitted that there is no signature of Shift In-charge on Ex.Kha-8. He also admitted that he did not put any date while appending his signatures on Exs.Kha-5, Kha-6 and Kha-7.
22. DW3 Jaipal Singh, Sr. Assistant, has brought the register from the office of Assistant Commissioner. In his cross-examination, he has admitted that he did not bring any document qua Ashish pertaining to the period w.e.f. 26.5.1998 to 27.5.1998.
23. DW4 Sudhir Kumar Jatav has admitted in examination-in-chief that the attendance register pertaining to Suresh Chand was not traceable and it was 7 missing. He could not identify the signatures made on Ex.Kha.11 dated 24.6.1998.
24. The Trial Court has acquitted the accused on the ground that there was enmity between the parties and as per the statements of DW1 to DW4, the accused Suresh Chand Saini and Ashish were not present on the spot. The Trial Court has erred in law by not appreciating the statements of PW1 Tej Singh and PW2 Pradeep @ Titu who are the injured witnesses. These two witnesses have categorically deposed that on 26.5.1998, when they were irrigating their fields, they were attacked by accused. The accused were armed with Tabal, stick, axe and Baari (iron rod). They were attacked with the intention to kill them. They raised the alarm. Thereafter, Ram Swaroop, Harpal, Subhash and Ramesh came on the spot. Initially, the victims were taken to the Hospital at Laksar and thereafter to the Govt. Hospital, Haridwar.
25. PW3 Ram Swaroop and PW4 Jasveer Singh have categorically deposed that they have witnessed the accused inflicting injuries on the victims. PW4 Jasveer Singh has lodged the FIR. He has taken the injured persons to the hospital. PW3 Ram Swaroop and PW4 Jasveer Singh have categorically deposed that the accused were armed with Tabal, sticks, axe and iron rod. As per the statement of PW5 Dr. Ardhendu, injury no.1 caused to Pradeep Singh was grievous in nature. Injury no.2 caused to Tej Singh was grievous in nature.
26. According to the X-ray undertaken by PW6 Dr. R.K. Pandey, the Skiagram showed the fracture of right clavicle bone and 2nd and 3rd ribs on right side. The 8 statements of the injured witnesses are important and the same could not be brushed aside by the Trial Court.
27. The Trial Court has given undue importance to the fact that there was delay in lodging the F.I.R. The incident took place around 6 PM on 26.5.1998 and the FIR was lodged on 27.5.1998 at 2:40 PM by PW4 Jasvir Singh. The endeavour of PW4 Jasvir Singh, being the brother and uncle of injured persons, was to save their lives. Thus, delay in lodging the FIR cannot be said to be inordinate.
28. Accused Suresh Chand Saini and Ashish @ Sheshraj have taken the plea of Alibi. Alibi is a double edged sword. Statements of DW1 P.K. Behl and DW2 Dr. K.L. Kureel do not inspire any confidence.
29. DW1 P.K. Behl neither brought the original attendance register nor the application filed by Suresh Chand Saini.
30. DW2 Dr. K.L. Kureel has admitted that the original register was not produced before him. He has also admitted that he did not put signatures on the cuttings made in Ex.Kha-5. He also admitted that there were no signatures of Shift In-charge on the documents Ex.Kha-8 and Kha-9.
31. DW3 Jaipal Singh, in his cross-examination, has admitted that the record brought by him was not pertaining to accused Ashish w.e.f. 26.5.1998 to 27.5.1998.
932. DW4 Sudhir Kumar Jatav, in his cross-
examination, has admitted that the attendance register was not available as it was missing.
33. Thus, the accused Suresh Chand Saini and Ashish @ Sheshraj have miserably failed to prove the plea of Alibi. This plea was false and has wrongly been considered by the Trial Court.
34. The prosecution has proved beyond reasonable doubt that the accused Naresh, Suresh, Ashish and Rajendra, being armed with deadly weapons i.e. Tabal, stick, axe and iron rod, have caused grievous injuries to PW1 Tej Singh and Pradeep Singh @ Titu with the intention to kill them. By those injuries, Tej Singh suffered the fracture on his right clavicle bone and 2nd and 3rd ribs on right side. PW5 Dr. Ardhendhu has opined that the injuries were inflicted by sharp edged weapons as well as by a blunt object. Statements of PW1 Tej Singh, PW2 Pradeep Singh, PW3 Ram Swaroop and PW4 Jasveer Singh have duly corroborated the medical evidence.
35. Accused have inflicted simple as well as grievous injuries to the injured persons and they have also criminally intimidated PW1 Tej Singh and PW2 Pradeep Singh. The prosecution has proved its case against the accused/respondents beyond reasonable 10 doubt for the offences of Sections 307/34, 323/34, 324/34 and 504 IPC.
36. There is no merit in the contention of learned counsel for the respondents-accused that the FIR was registered by PW4 Jasveer Singh in counterblast to the report lodged against PW1 Tej Pal by Ms. Santosh Kumar (wife of accused Naresh) on 26.5.1998.
37. Their Lordships of Hon. Supreme Court in AIR 1972 S.C. 109 in the case of 'Chandrika Prasad Singh and others v. The State of Bihar' have held that the onus to establish alibi is on the accused and if there was no cogent ground for disagreeing with High Court that this onus was not discharged, the Supreme Court in appeal on special leave will not interfere with the conclusion. In paragraph no.3, their Lordships have held as under: -
"3. The High Court dealt with the argument on the plea of Chandrika Prasad Singh's alibi in the following manner:
On the behalf of Chandrika Prasad Singh eight witnesses were examined. His main plea was that on the third December, 1964 he was examined by D.W. 1 Dr. Jamuna Prasad Rai as he had some urinary trouble. He was referred to another Doctor and D.W. 5 Dr. S.S. Tripathy, examined his blood and stool on the 5th December, 1964. D.W. 4 Dr. V.N. Singh did the operation. This operation was in the nature of phimosis Another witness D.W. 6 was examined to say that Chandrika Prasad Singh had taken a room on rent from 4th to 12th December, 1964 but he could not say definitely whether Chandrika Prasad Singh was seen by him in the night of the 5th December or in the morning of the 6th December. The learned Sessions Judge has discussed the evidence of these witnesses in detail in paragraph 44 of his judgment and came to the conclusion that even taking the evidence of these defence witness at its face value it could not be conclusively proved that Chandrika Prasad Singh could not be present "at the time of the occurrence a the place of occurrence. The most important point in the plea alibi was the time of the actual examination of blood and urine a; well as the operation but this was not indicated anywhere in the evidence. This village is connected with Darbhanga by a pitched road and buses ply at short intervals. So, in my opinion, the learned Sessions Judge was right in disbelieving the plea of alibi put forth by Chandrika Prasad Singh.
The conclusion of the High Court is not tainted with any infirmity justifying re-examination of the evidence by this Court on special 11 leave and interference with those conclusions. The onus to establish alibi was on Chandrika Prasad Singh and we do not find any cogent ground for disagreeing with the High Court that this onus has not been discharged on the evidence on the record."
38. Their Lordships of Hon. Supreme Court in AIR 1981 S.C. 1021 in the case of 'State of Haryana v. Sher Singh & others' have held that the burden to prove the alibi is on the accused. In paragraph no.4, their Lordships have held as under: -
"4. When an accused pleads alibi, the burden is on him to grove it under Section 103 of the Evidence Act which provides:
103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustrations: (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C.A must prove the admission.
B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.
In this case defence did not adduce any evidence to prove the alibi. On the contrary the evidence of P.W. 11, Lila, is that on 21st October, 1973, all the accused were produced by Lalji, the brother of the wife of respondent, Sher Singh in village Nand Karan Majra around 8 a.m., when they were arrested. This was in presence of of P.W. 11 and several others. Police had been there the witness says, from October 17 to 20, 1973. This evidence of P.W. 11 remains unrebutted. The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on October 17, when they were arrested by police, is untrue."
39. Their Lordships of Hon. Supreme Court in AIR 1988 S.C. 1796 in the case of 'Birad Mal Singhvi v. Anand Purohit' have held that in order to render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in 12 performance of a duty specially enjoined by law. In paragraph no.15, their Lordships have held as under: -
"15. The High Court held that in view of the entries contained in the Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy and Ors. v. Jyotish Chandra Acharya Chowdhury AIR1941Cal41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram and Ors. [1951] Pun 377 : Sakhi Ram and Ors. v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur and Ors. [1966] Pat 459 : Ghanchi Vora Samsuddish Isabhai v. State of Gujarat [1970] Guj 178 and Radha Kishan Tickoo and Anr. v. Bhushan Lal Tickoo and Anr. [1971] J & K 62. In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Sri Jagannath Prasad and Ors. 42 ELR 465, K. Paramalali v. L.M. Alangam and Anr. 31 ELR 401 and Krishna Rao Maharu Patil v. Onkar Narayan Wagh 14 ELR
386."
40. Their Lordships of Hon. Supreme Court in AIR 1997 S.C. 322 in the case of 'Binay Kumar Singh v. State of Bihar' have held that strict proof is required for establishing plea of alibi. Their Lordships in paragraph nos.22, 24 and 26 have held as under: -
13"22. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence take 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 a 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 defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, 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 Pandey v. State of Uttar Pradesh 1981CriLJ618, State of Maharashtra v. Narsingrao Gangaram Pimple 1984CriLJ4.
24. Of course, Sri UR Lalit, learned Senior Counsel has vehemently argued that the courts should have presumed the genuineness of all official records and accepted the proof as more than reasonably sufficient to discharge their burden. We shall not forget that presumption is only a rule in the realm of burden of proof and the reasons concurrently weighed with the two courts below for disbelieving the plea of alibi put forth by these two appellants are quite sturdy. At any rate, in an appeal by special leave granted under Article 136 of the Constitution, this Court would not be inclined to upset the finding of fact based on such weighty reasons, more so when the reasons advanced by both the courts in support of the finding appeal to us also.
26. Sri Sushil Kumar, learned Senior Counsel arguing for the appellant Binay Kumar Singh (A-34) perused the plea of alibi put forth by that accused in the trial court. He examined one Dr. Binod Bihari Sinha who was Associate Professor of Medicine at Nalanda Medical College, Patna as DW-36. The witness of course, said that appellant Binay Kumar Singh was admitted as an in-patient of the said Medical College Hospital for appendicitis and was not in a position to move out of his bed even on 6.2.1980. The witness said this with reference to the Bed- head Ticket produced by him. But the cross-examination of DW-6 has exposed the falsity of his evidence. That a patient admitted for acute case of appendicitis in a Medical College Hospital was never shown to a surgeon creates a serious doubt as to whether this appellant was really admitted in that hospital as claimed by DW-6. The witness said in cross-examination that the patient left the hospital soon after his admission but again returned on the next day. PW-6 also admitted that 14 the Bed-head Ticket referred to by him did not contain any entry made by him. No mark of identification of the patient was noted in such Bed- head Ticket and DW-6 had no previous acquaintance with this appellant. No other document was produced to support the plea. On such a meagre and unsatisfactory evidence, the two Courts below have rightly discarded his plea of alibi."
41. Their Lordships of Hon. Supreme Court in (2002) S.C.C. (8) 165 in the case of 'Jayantibhai Bhenkarbhai v. State of Gujarat' have held that the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. In paragraph no.19, their Lordships have held as under: -
"19. The plea of alibi flows from Section 11 and is demonstrated by illustration (a). Sarkar on Evidence (Fifteenth Edition, p. 258) states the word 'alibi' is of Latin origin and means "elsewhere". It is a convention term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. 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 Section 11 of the Evidence Act that facts which are inconsistent with the facts in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in the discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. 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 place and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court."15
42. Their Lordships of Hon. Supreme Court in (2007) 7 S.C.C. 378 in the case of 'Rajendra Singh v. State of U.P. & another' have held that the burden to prove the plea of alibi lay upon the accused. The accused can prove this plea by leading evidence during trial. In paragraph nos.8 and 11, their Lordships have held as under: -
"8. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to section 103 reads as under:
"B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it."
This provision makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. See Gurcharan Singh v. State of Punjab AIR 1956 SC 460, Chandrika Prasad Singh v. State of Bihar AIR 1972 SC 109 and State of Haryana v. Sher Singh AIR 1981 SC 1021. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge.
11. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 and it was held as under in para 16 9 of the report : "9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."
Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous."
43. Their Lordships of Hon. Supreme Court in (2008) 13 S.C.C. 133 in the case of 'Babloo Pasi v. State of Jharkhand & another' have held that the register is relevant and admissible but is not of much evidentiary value in the absence of the material on which the age was recorded.
44. Their Lordships of Hon. Supreme Court in (2011) 4 SCC 324 in the case of 'State of U.P. v. Naresh & others' have again reiterated that the testimony of injured witness must be given due weightage. His presence cannot be doubted. It is unlikely that he would spare actual assailant in order to falsely implicate someone else. In paragraph nos.26 and 27, their Lordships have held as under: -
17"26. The High Court has disbelieved Balak Ram (PW.5), who had suffered the gun shot injuries. His evidence could not have been brushed aside by the High Court without assigning cogent reasons. Mere contradictions on trivial matters could not render his deposition untrustworthy.
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh (2010) 10 SCC 259)."
45. Their Lordships of Hon. Supreme Court in (2011) 7 S.C.C. 421 in the case of 'Bhahan Singh v. State of Haryana' have held that the evidence of injured eyewitness is very reliable. In paragraph no.36, their Lordships have held as under: -
"36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh M (2010) 10 SCC 259; Kailas and Ors. v. State of Maharashtra (2011) 1 SCC 793; Durbal v. State of Uttar Pradesh (2011) 2 SCC 676; and State of U.P. v. Naresh and Ors. (2011) 4 SCC 324.
46. In AIR 2004 Orissa 14 in the case of 'Bami Bewa v. Krushna Chandra Swain @ Gochhayat & others', 18 learned Single Judge of Orissa High Court has held that the entry in public record is to be considered subject to relevancy and by assessing evidence as a whole and not in isolation. In paragraph no.13, it was held as under: -
"13. Learned counsel for the appellant argued that it appears from Exts. A and B that Jairam has not been described as the father of the plaintiff and Ram Chandra Swain got the plaintiff admitted in the School, therefore, the entry in Ext. 1 showing the plaintiff as the son of the adoptive father is not sufficient to prove his status as the adopted son of Jairam. In that respect he also relies on the case of Bhim Mandal v. Magaram Corain MANU/BH/0006/1961 and MANU/OR/0013/1996 (Raghunath Behera v. Balaram Behera). In both the above decisions, the cited authorities have propounded about admissibility of an Admission Register in view of the provision in Section 35 of the Evidence Act. There is no dispute to the admissibility of Exts. A and B either by the plaintiff or in the findings recorded by the Court below. A document if admissible in accordance with Section 35 of the Evidence Act, will automatically not be credible simply because it has been admitted as evidence. A document admitted as evidence is to be considered subject to relevancy and by assessing the evidence as a whole and not in isolation. In that context the trial Court has taken the pain to examine all the relevant evidence which includes Ext. 1, the School Leaving Certificate of the plaintiff and Ext. A i.e. the copy of relevant entries of the admission Register of Sarpeswar M.E. School and Ext. B i.e. the copy of the School Leaving Certificate from that School. Trial Court has held that Ext. 1 indicates that plaintiff was admitted into the Primary School by the adoptive father and, therefore, the adoptive father's name was noted in the School Leaving/Transfer Certificate. That entry in Ext. 1 runs consistent to the oral evidence adduced by the plaintiff in proof of his status as the adopted son of Late Jairam Gochhayat. On the other hand, it appears from Ext. a that Ram Chandra Swain, the natural father of the plaintiff took the plaintiff to Sarpeswar M.E. School, Balarampur for the purpose of admission. In that Admission Register Plaintiff's name was noted as Krushna Chandra Gochhayat whereas as against Column No. 4 the person who got him admitted has been noted as Ram Chandra Swain, the natural father of the plaintiff. Therefore, description of said Ram Chandra Swain in Ext. 2 as the father of Krushna Chandra Gochhayat is an incorrect description. The trial Court, therefore, found that Exts. A and B do not prove the status of the plaintiff as the son of Ram Chandra Swain and do not dislodge the plea of adoption advanced by him. On a close scrutiny of the evidence on record, this Court finds no incorrect or illegal approach by the Court below in that respect."
47. Accordingly, both the appeals are allowed. Impugned judgment and order dated 16.3.2011 rendered by the Additional Sessions Judge/Second FTC, Haridwar in S.T. No.286 of 1999, is set aside. Accused Naresh, 19 Suresh, Ashish @ Sheshraj and Rajendra are held guilty for the offences of Section 307/34, 323/34, 324/34 and 504 IPC.
48. Let the accused be produced before the Court for hearing on the quantum of sentence on July 17, 2017. Production warrant be accordingly prepared by the Registry of the Court ensuring the presence of the accused for hearing on the quantum of sentence on the next date fixed.
49. Put up on July 17, 2017 for further orders.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) Rdang