[2016] 1 S.C.R. 555

DARSHAN SINGH

STATE OF PUNJAB

(Criminal Appeal No. 2099 of2008)

JANUARY 06, 2016

[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

Penal Code, 1860 - ss.302 and 324 - Prosecution of appellant-accused along with 6 accused for offences u/ss 148, 3021 149, 3071149, 3241149, 218 and 201 !PC - Prosecution case that accused party and complainant party were facing proceedings u/s

1071151 Cr.P.C. and the incident took place when the parties had gone before the Court of the Magistrate for attending the proceedings - Trial court acquitted 3 of the accused including the appellant-accused - In State appeal, High Court set aside the acquittal of appellant-accused and convicted him u/ss.302 and 324

- On appeal, held: The evidence of three injured eye-witnesses is corroborated by the medical evidence - The appellant-accused has been assigned specific role in assault - Thus the prosecution has discharged its burden to prove the case - The plea of alibi by the accused has been rightly held to be false - Therefore, the appellantaccused has rightly been convicted by the High Court.

Evidence - Plea of alibi - Nature of - Plea of alibi is not one of the exceptions contained in Chapter IV of !PC - It is rule of evidence recognized u/s. 11 of Evidence Act - Such plea is required to be proved only after prosecution has proved its case - Evidence Act, 1872 - s.11 - Penal Code, 1860 - Chapter IV.

Words and Phrases - 'Alibi' - Meaning of

Dismissing the appeal, the Court

HELD: 1. There are three injured eye witnesses in the present case. It is a case of day light incident. Injuries on the person of said eye witnesses have been corroborated by the doctors PW-4, PW-5 and PW-14. Ocular testimony of eye witnesses cannot be discarded lightly. Injured eye witnesses have assigned specific role as to how the appellant-accused assaulted

one of the deceased who suffered ante mortem injuries which gets corroborated from the autopsy report of the deceased. Once the prosecution has discharged its burden, the burden to prove that appellant-accused was not present with other accused at the place of incident and had gone elsewhere, lies on him. (para 12)

(560-E-G J

2.1 The High Court has correctly held that the appelfantaccused has taken false plea of alibi. It is proved on the record that in the proceedings under Section 107/151 of Cr.PC before Executhe '.Vlagistrate, 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. Jn 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, the appellant attended the school next day in the first half and sought half day leave thereaftet~ The attendance register was not seized immediately after the incident. His pica of alibi is vacillating. (para 16( (562-D-EJ

2.2 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. (para 17J J562 -F-GJ

CRl\-llNAL APPELLATE JURlSDICTlOl\i : Criminal Appeal No. 2099 of2008

From the Judgment and Order dated 02.09.2008 of the High Court

of Punjab and Haryana at Chandigarh in Criminal Appeal 568-DBA of 1998.

K. T. S. Tulsi. Kuber Boddh. "iaYandeep Matta. 1\iraj Gupta. Raj Kamal for the Appellant.

Saurabh Ajay Gupta, AAG, 1\ ishant Bislrnoi Kuld ip Singh for the Respondent.

The Judgment of the Court \\as delivered by

DARSllAN SIN(ill \. STAT!'. or l'LINJAB

PRAFllLLA C. PANT, .J.

This appeal is directed against judgn1cnt and order datL"d 02.09.2008. passed by I ligh ('our! or Punjab and 1-laryana. ('handigarh. \Vhcrcby the I ligh C'nun has disposed nf Criminal Appeals No. 209 D.13. and 568 DllA. both or I 998 and Criminal

Revision No. 654 or I 998. The appeal tiled b~ the State qua Darshan

Singh (present appellant) against his acquittal by the trial court. \Yas allo\vcd and his acquittal \\'as reversed. rhc pn:scnt appellant has hl'Cll convicted by the I ligh Court under Secti<Hl 302 ot. Indian Penal Code.

1860 (for short "IPC'). and sentenced to imprisonment for lil'c and directed to pay a line Rs. 5.000/- and in default or payment of tine he is

directed to undergo rigorous i1nprison1111:nt for a further period or six months. Appellant Darslrnn Singh has been rurthcr found guilty of the charge of o!Tcncc punishable under Scrti1J11 32.+ of I PC'. and sentenced

to undergo rigorous i1npriso111ncnt for a pL'riod of one year and directed to pay line or Rs. 1.000/- with default clause directing to undergo rigorous

i111priSOlllllClll for l'urthcr plriod oft\\O lllOllths.

1 We have heard learned counsel l'or the parties and perused

the papers on record.

Prosecution story. in brief. is that there \vas dispute bct\\ccn co1nplainant and his relatives on one side and :1ccuscd p1:rsons on the

other side regarding their turn or irrigating their fields. ()n account of this, earlier there had been incidents or assaulting each other. In the circutnstanccs. both the parties \Vere facing proceedings undcr_Scction

I 07 /15 I or Code ol'Criminal Procedure. 1971 (for short "Cr.PC") before Exccut ivc Magistrate. Faridkot. On I 7 .02. 1995. complainant Amrik Singh (l'W-1) along with Raj Singh (l'W-.1). Sukhchain Singh(l'W-2). I larbans Singh (one nfthc deceased). and their father Mander Singh and cousin Gurscwak Singh with maternal uncle Santa Singh (another deceased) and Boota Singh had gone to attend the proceedings or the court. From the side of accused Sura in Singh. Jas1nnil Singh. Darshan Singh (present appellant), Jhanda Sir\gh and l3oota 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 \Von.ts, as Sura in Singh objected to presence of 13hajan Singh \vho \Vas relative or ..::01nplainant Atnrik Singh and not a

party to the proceedings. I le (Surain Singh). a Arnritdhari Sikh. took nut his Siri Sahib (Small Krip:rn. a sharp edged weapon) and gave blow to

Blwjan Singh. When complainant party attempted to separate them. Sura in Singh gave Kripan hknv on the person or Mander Singh. I le ~ssaultcd

A also on the left shoulder of the complainant Amrik Singh, and gave two blows on the person ofSuckhchain 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.

Report of the above incident was lodged bycomplainantAmrik 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 D 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.

It appears that after the committal of the case it was registered as Session Case No. 33of1995. 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), G 307/149, 324/149, 2 I 8 and 20 I lPC to which accused pleaded not guilty and claimed to be tried.

Thereafter prosecution got examined PW-I 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- H mortem examination, PW-5 Dr. Manjit Singh, PW-6 Gurcharanjit Kaur,

DARSHAN SINGH v. STATE OF PUNJAB

[PRAFULLA C. PANT, J.]

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 Ranj it Singh, PW-18 Constable Jagj it Singh and PW-19 satish Kalia, Ahalmad.

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 AS! Harvinder Pal Singh were examined.

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 !PC for committing murder of Harbans Singh and also under Section 307 of !PC for attempting to murder Sukhchain Singh. He (Surain Singh) was further convicted under

Section 324 of !PC. Rest of the accused Jhanda Singh, Jasmail Singh and Pal Singh were convicted under Sections 302/34, 307 /34 and 324/34 of!PC. After hearing the sentence, the trial court sentenced the convicts to various sentences.

Convicts Sura in 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 OBA 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 !PC for voluntarily causing hurt with a deadly weapon on person of Gursewak Singh and Raj Singh and sentenced to rigorous imprisonment

SUPREME COURT IU:PORTS

J2016/ IS.CR.

for a period of , inc year and to pay line or Rs. 1.000/- "ith default clause. Aggricyd by saidjudg111cnl and order datLd 02.09.2008. passed by the High Court. this appeal is filed by acrnscd Darslrnn Singh \\ho

\vas acquitted by the trial court. but order of acquittal \v<Js reversed and

\vas convicted b~thc I figll C'ourl.

I 0. Mr. K.T.S. Tulsi. Senior Advocate. on behalf of the appcll:111t has argued before us that \\here t\\O vic\\'S tlre possible on the basis of evidence on record. the I ligh Court should not lwvc 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 \Vas nol present nt the place of incident ,, hen occurrence took place and as such. the acquittal recorded by the trial court was not liable to be interfered" it:i. Our attention is dr:m n to the evidence adduced in defence in support of pica of alibi.

11. On the other hand. learned counsel for the State pointed out that in the incident in qncstion. while Sura in Singh committed murder of Harbans Singh. the appellant (Darshan Singh) committed mnrder of Santa Singh. It is fu11her submitted that plea of alibi taken by the defence was correctly found false by the High Court after re-appreciation ofevidcnce.

Learned counsel for the State rcforred 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-I Amrik Singh. PW-2 Sukhchain Singh and PW-3 Raj

Singh. It is a case of day I ight incident. Injuries on the person of said eye witnesses have been corroborated by PW-4 Dr. Sarabjit Singh S:mdhu.

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:-

"I. Transverse stab wound 3 x 0.5 cm was present on the anterior side of chest on the left side. 6 ems below and lateral to left nipple

at 4.00 O'clock position. C .B.P was present. On dissection. it is A going in wards and medially tlfrough 6'" inter costal space. piercing the pericardium and left vertical. Pericardia! 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 ems lateral to the inju1y no. I. It was bone deep B

C.B.P.

3. Transverse stab wound 2 x 0.5 cm was present at the back of the left side of abdomen 3 ems lateral to mid line 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 ems lateral to the injury 110.3 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 ems from the mid line and 20 ems below the nape of the neck, it was bone deep C.B.P.

6. A transverse stab wound 4 x 0.5 ems on the back of left side of chest, 5 ems from the midline and 12 ems below the nape of the neck. C.B.P. It was bone deep."

13. From the record, PW-I Amrik Singh (eye witness) appears to have suffered following injuries at the time of the incident:-

''2.4cm x I cm incised wound- I 0.5 ems below and posterior to left shoulder joint. X-ray ofleft 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 G 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 ems from xiphisternum. Profuse bleeding was present. X-ray advised.

3. 3 x 2 ems incised wound on right lumber region-I 0 ems below injury no.2. Surgical opinion and X-ray advised."

15. Third eye witness PW-3 Raj Singh suffered following injuries B on the date of incident, as proved on the record:-

" 1. 1.9 cm x I incised wound in right Gluteal region-6 Y, ems

below the right. Anterior superior iliac spine. X-ray advised.

2. 2cms x I cm incised wound on right lower chest. Bonedeep 22 ems below the right anterior, Axillary fold-17 ems below and slightly c lateral to right memory gland. Surgical opinion was advised."

16. Now, we come to the defence plea ofappellant 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 D 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 ofalibi. It is proved on the record that in the proceedings under Section I 07/I 51 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.

E 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 afterthe incident. His plea of alibi is vacillating.

F 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 ofalibi 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 H in this appeal which liable to be dismissed.

20. Accordingly, the appeal is dismissed. Appellant be taken into A custody by the court concerned to make him serve out the remaining part of sentence, awarded by the High Court.

Kalpana K. Tripathy Appeal dismissed.