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Wednesday, February 3, 2016

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.

                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO. 2099 OF 2008

Darshan Singh                                      … Appellant


State of Punjab                                     …Respondent

                               J U D G M E N T

Prafulla C. Pant, J.

      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

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.”

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

      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.

                                                  [Dipak Misra]

                                                          [Prafulla C. Pant]
New Delhi;
January 06, 2016.

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