1. In an incident which took place in village Singpur ofTaluk Songadh, Gujarat on 6.7.1989 at about 8.30 p.m. oneLallubhai Naranbhai died on account of injuries inflicted onhim. Nine accused persons were charged with having committedoffences punishable under Sections 302/149 and 147/148/452IPC. Four accused persons, namely, accused Nos. 2, 4, 5 and8 were directed to be acquitted by the Trial Court as thecharges against them were not proved and they were entitledto the benefit of doubt. Accused Nos. 1, 3, 6, 7 and 9 wereheld guilty of having committed the offence punishable underSection 302/149 IPC. These five accused persons weresentenced to undergo imprisonment for life and a fine of Rs.250/- each and in default to further undergo rigorousimprisonment for one month each. They were further sentencedto undergo rigorous imprisonment for one year each for havingcommitted offences under Sections 147/148 and 452 IPC andalso to pay a fine of Rs. 125/- and in default of payment toundergo further imprisonment of one month each. Thesentences were directed to run concurrently. All the fiveconvicted accused persons preferred appeal before the HighCourt which has been dismissed. Accused Nos. 1, 3, 6 and 7,namely, Singha Magan, Dina Afiniya, Digniya Rama and RupaSingha have accepted the judgment of the High Court and havenot pursued challenge to their conviction upto this Court.It is only the accused No. 9 Jayantibhai Bhenkarbhai who hasfiled this appeal by special leave.
2. The prosecution case briefly stated is that theaccused No. 1 Singha Magan came to visit the house of oneLalji Rajia at about 6.00 p.m. on 6.7.1989. Lalji Rajia wasnot at his house. Singha Magan demanded liquor from Ashwin,a minor son of Lalji Rajia, which was objected to byUshniben, the wife of Lalji Rajia. There was some verbalalteration Singha Magan (A-1) was speaking in foullanguage and was argumentative insisting on fulfilling hisdemand for liquor. At this point of time, Lalubhai and hisbrother Kantibhai, who were next door neighbourers of LaljiRajia came out and intervened and chastised the accusedSingha Magan by telling him that in the absence of LaljiRajia, the accused should not have harassed the lady who wasalone in the house. The accused was asked by Lalubhai toleave that locality and go away. This annoyed the accusedand he left threatening that he could see him later.
3. At about 8.00 p.m. on the same day, accused No. 1Singha Magan returned to the house of the deceasedaccompanied by accused Nos. 2 to
9. The accused personswere severally armed. Accused No. 1 Singha Magan was armedwith a knife, accused No. 7 Rupa Singha had a pestle withhim. Accused No. 6 Digniya Rama and accused No. 9Jayantibhai Bhenkarbhai were armed with sticks. The incidentwas witnessed by Kantibhai and Thakorebhai, brothers of thedeceased. The accused persons fled away after assaulting thevictim. Thakorebhai went to Channabhai Dhirubhai andnarrated to him the incident. He advised for a report beinglodged with the police. Thakorebhai accompanied byChannabhai Dhirubhai went to Ukai police station situated ata distance of about 10-12 Kms. and lodged F.I.R. of theincident at 6.00 a.m. on 7.7.1989. A cognizable offence wasregistered and investigation commenced.
4. Shortly after the incident of assault Lalubhaisuccumbed to the injuries. Post-mortem on the dead body wasperformed by Dr. Surendra, Medical Officer, GeneralHospital, Songadh. The deceased was found to have sustained22 injuries out of which 3 were incised wounds and remainingwere contused lacerated wounds or abrasions. On internalexamination, the deceased was found to have sustainedfracture of right 5th and 6th ribs at the level of rightmid clavicle line and fracture of left 7th, 8th and 9th ribsat the level of left mid scapular line. The injuries wereante-mortem. The incised wounds could have been caused bysharp cutting weapon such as knife while other injuries couldhave been caused by blunt object such as stick, pestle orback portion of dharia.
5. The short question for decision in this appeal iswhether Jayantibhai, the accused-appellant can be held tohave participated in the incident of assault and a memberof unlawful assembly?
6. The accused denied his participation in the incidentof assault on the deceased. His defence is that a day beforethe incident he had left village Singpur and gone toAhmedabad in order to attend hearing in an election appealfiled by him before Additional Development Commissioner whichwas scheduled to be heard on 6.7.1989 at Gandhinagar.According to the accused-appellant there was yet another case- a criminal case under Section 409 IPC wherein he wasaccused and pending for trial in the Court of JudicialMagistrate at Vyara. Therein, also the date of hearing wasappointed as 6.7.1989 and his personal appearance wasrequired. In the election appeal Kantilal Shah, DW-3 was theadvocate appointed by him. The election appeal had come upfor hearing on 14.6.1989 and was adjourned for hearing on6.7.1989. In the criminal case at Vyara Dhansukhbhai DW-4was the counsel appointed by the accused-appellant. KantilalShah DW-3 had, on the hearing being adjourned on 14.6.1989,sent a postcard to the accused-appellant informing him thatthe hearing would positively take place on 6.7.1989 which hemust attend. As the accused appellant could not haveattended both the cases, i.e., the criminal case at Vyara andthe election appeal at Gandhi Nagar, both fixed for 6.7.1989,he had through counsel Shri Dhansukhbhai DW-4 moved anapplication in the Court of Judicial Magistrate, Vyaraseeking exemption from personal appearance and anadjournment. This application was rejected on 6.7.1989 andthe learned Judicial Magistrate at Vyara directed warrants tobe issued against the accused. However, theaccused-appellant did attend the hearing before the Addl.Development Commissioner on 6.7.1989. The hearing commencedafter 11.00 a.m. and continued upto 2.30 p.m.
7. The version of the defence proceeds to say that theaccused-appellant went to see and was going around the zoo atAhmedabad for about half an hour commencing at 4.00 p.m.Thereafter, he went to Gandhi Nagar to meet one Rahulbhai whois employed as a clerk in the Secretariat at Gandhi Nagar.He secured pass for entry in the Secretariat and he signedthe entry register wherein his name is mentioned along withhis signatures. The accused then returned to Ahmedabad andwent to stay with one Manekbhai DW-2. It was at aboutmidnight that Manekbhai and Dineshbhai went to see off theaccused-appellant at the bus station at Ahmedabad where theaccused-appellant boarded a bus originating from a station inRajasthan and proceeding to Songadh and reached Singpur inthe morning of 7.7.1989. This register was summoned inevidence and the accused-appellant appearing as DW-2 hasdeposed on oath to the entry made in his presence by theconcerned clerk and the signatures put up by him on theregister.
8. The accused himself chose to appear in witness boxand took oath to depose in support of his own version. Healso examined Kantilal Shah, Advocate DW-3 and Ramanbhai DW-5clerk in the office of the Additional DevelopmentCommissioner. According to Ramanbhai DW-5 the AdditionalDevelopment Commissioner was regular in coming to the officeat 10.30 a.m. and his routine was to attend to miscellaneouswork, including disposal of the mail received, for about halfan hour and commence hearing of cases at 11.00 a.m. Theappellant's case was at item No. 4. The first three casesdid not proceed and therefore the hearing of the appellant'scase was taken up at about 11.30 a.m. and lasted upto 2.00or 2.30 p.m. In the record maintained in the office ofAddl. Development Commissioner, the presence of theaccused-appellant alongwith his counsel Kantilal Shah DW-3 isrecorded and both have signed in token of their havingattended the office of Addl. Development Commissioner andparticipated in the hearing. Ramanbhai DW-5 has furtherdeposed that he used to remain present during the course ofhearings by the Additional Development Commissioner and takenotes of the submissions made which he did on 6.7.1989 also.In view of the involvement of the accused-appellant havingbeen alleged in the incident, he moved an application to theAddl. Development Commissioner to issue Certificate showinghis presence in the office of the Add. DevelopmentCommissioner on 6.7.1989. Certificate in that regard wasissued though the time at which the accused-appellant waspresent before the Addl. Development Commissioner was notmentioned in the certificate; obviously because record ofsuch time is not maintained. The fact remains that theaccused-appellant was in attendance in the office ofAdditional Development Commissioner at Gandhinagar some timeafter 11.00 a.m. on that day. The post-card dated 19.6.1989written by Kantilal Shah, Advocate to the accused-appellantand sent through post bearing postal stamps and seals wasproduced in evidence wherein it has been communicated by thecounsel to the appellant that his default in appearance on14.6.1989 was viewed seriously and his appearance on 6.7.1989was a must. On this very ground the appellant had moved anapplication before the Judicial Magistrate Vyara seekingexemption from personal appearance on 6.7.1989. In supportof the said application the post-card sent by advocateKantilal Shah was filed. The record of this applicationaccompanied by post-card was summoned in the Trial Court andproved by Dhansukhbhai, Advocate DW-4 appearing for theaccused-appellant before the Magistrate's Court at Vyara.
9. The accused-appellant also produced in evidence twotickets of zoo purchased by him for himself and Dineshbhai on6.7.1989. He also produced the bus tickets issued by theconductor of the bus by which he had travelled from Ahmedabadto Singpur. The appellant had boarded the bus at about 1.00a.m., that is, a little after the midnight of 6/7.7.1989 andreached Singpur in the morning of 7.7.1989.
10. Having learnt of the accusation against him theaccused-appellant had moved an application on 10.7.1989seeking anticipatory bail from the Sessions Court. Theapplication was rejected. He pursued his prayer foranticipatory bail by moving the High Court but thereat alsohe failed. However, what is significant to note is that evenin the application for anticipatory bail moved on 10.7.1989the accused-appellant pleaded alibi in support of his prayerfor anticipatory bail.
11. Babulal PW-9, the investigating officer has admittedduring his cross-examination that if the road is clear andthere are no obstructions then ST bus can reach Ahmedabadfrom Songadh village in 8 hours. However, he furtheradmitted that if one has to travel by ST bus from Songadh toAhmedabad then all ST buses go to Ahmedabad from Songadhinvariably via Surat which would take a little longer time.
12. The High Court took into consideration the plea ofalibi taken by the accused-appellant and formed an opinionthat the plea was not strictly proved as required so as tocompletely exclude the possibility of the accused having beenhaving been present at the place and time of the incident.The reasons assigned by the High Court are that through theprosecution evidence the involvement of the accused in theincident is proved beyond reasonable doubt. As against this,the conduct of the accused-appellant appears to be unnaturalinasmuch as he did not promptly (that is, on 7.7.1989 itself)approach the investigating officer to tell him that he wasbeing falsely implicated as he was in fact in Ahmedabad onthe date and at the time of the incident. In the opinion ofthe High Court the plea of alibi was not also fullysubstantiated in view of non-examination of Dineshbhai, whohad accompanied the accused in Ahmedabad while he boarded thebus for Songarh and Rahulbhai, the clerk in the Secretariatto whom the accused claims to have gone to meet at about 5.15p.m. on 6.7.1989.
13. These very reasons were assigned by the Trial Courtfor disbelieving the plea of alibi taken by theaccused-appellant. However, an additional reason assigned bythe Trial Court is that in the application for anticipatorybail the accused has stated his presence in the office ofAddl. Development Commissioner upto 1.00 p.m. only whilelater on he tied to improve upon his version by pleadingthat he had remained present there upto 2.30 p.m. Vide para27.1 of the judgment, the High Court while appreciating thedefence evidence, has arrived at a positive finding that theaccused-appellant has been able to prove by his evidence hispresence at about 11.00 a.m. at Gandhi Nagar in the officeof Addl. Development Commissioner. Thus, even in theopinion of the High Court, the plea of the accused that hehad on the date of the incident gone to Ahmedabad to takepart in the hearing of his appeal fixed before Addl.Development Commissioner is not false and at least at 11.00a.m. he was present thereat.
14. In the facts and circumstances of this case wepropose to begin by dealing with the evidence of alibiadduced by the accused-appellant. We have no reason todisbelieve the statement of Kantilal Shah, Advocate DW-3 andRamanbhai DW-5, the clerk who have deposed that the hearingbefore the Addl. Development Commissioner had taken place onthat date and that the accused was present at the time ofhearing. The hearing must have lasted for a reasonablelength of time assuming without holding that it had notcontinued upto 2 or 2.30 p.m. We have also no reason todoubt the entry in the Secretariat register wherein the nameand particulars of the accused-appellant are mentioned as oneof the visitors to the Secretariat on that date alongwith thesignatures of the accused-appellant against the entry. Thisshows that on 6.7.1989 the accused did visit Gandhi Nagar.Assuming that the accused-appellant had departed from theoffice of Addl. Development Commissioner at the conclusionof hearing of his case, he must have spent a reasonable timein visiting the Secretariat which would obviously be duringthe working hours of the day. Thereafter, he may have leftGandhi Nagar for Songadh. According to the available modesof transport he would have taken a bus from Gandhi Nagar forAhmedabad and from Ahmedabad he would have boarded bus forSongadh which would proceed via Surat only. A publictransport required to cover a distance of about 300 Kms.,allowing a reasonable margin for time lost in stoppages onway, would take about 8 to 10 hours to reach Songadh. Itdoes not appear probable that the accused-appellant couldhave reached Singpur and participated in the incident whichis said to have taken place at about 8.00 p.m.
15. On the next day the accused-appellant learnt of theJudicial Magistrate Vyara having turned down his prayer forexemption from personal appearance before the Court at Vyaraon 6.7.1989 and consequently having issued a warrant ofarrest for securing the presence of accused before him. Theaccused-appellant rushed to Vyara, appeared in the Court andmoved an application for recalling the warrant of arreststating the factum of his presence before the AdditionalDevelopment Commissioner at Gandhinagar on 6.7.1989. Thisapplication was allowed and the warrant of arrest wasrecalled. These relevant facts have been deposed to byreference to the documents from the record of the JudicialMagistrate, Vyara by Dhansukh Bai, Advocate, DW-4.
16. We have carefully gone through the prosecutionevidence. Although the Trial Court as well as the High Courthave recorded a finding of the accused-appellant havingparticipated in the incident but a few prominent features ofthe prosecution case and of the findings arrived at by thetwo Courts need to be noticed. All the four eye witnessesare not specific about the overt act attributed to thisaccused-appellant. While some witnesses attribute twospecific injuries on the person of the deceased having beencaused by this accused appellant, others only make ageneralized statement of this accused appellant also havingparticipated in the assault. There is another accused also,namely, Digniya Rama (A-6) who was armed with a stick. Astick stated to have been used in the incident has beenrecovered from the accused Digniya Rama (A-6). No recoveryhas been made from the accused-appellant. Secondly, theincident took place at about 8 p.m. while the firstinformation report of the incident was lodged at 6 a.m. at apolice station situated at a distance of about 10 to 12 Kms.from the village where the incident took place. The F.I.R.cannot be said to be belated. But, the fact remains that thefirst informant was in the company of Chhanabhai Dhirubhai, apolitical rival of the accused-appellant, soon after theincident and before and at the time of lodging of F.I.R. Apossibility of some embellishment having crept into theF.I.R. in view of the political influence wielded by suchopponent of the accused-appellant cannot be completely ruledout. Thirdly, this accused-appellant, from the verybeginning, no sooner he learnt of accusation against him,took the defence of alibi by informing the necessary facts tothe investigating officer on 8.7.1989 itself. Thereafter,this plea of alibi has been consistent and reflected inseveral documents of undoubted veracity as also substantiatedby the testimony of such witnesses who do not have any animusto falsely depose in favour of the accused. There is alsosupporting documentary evidence of unimpeachable veracityadduced in support of the defence plea.
17. In view of the overwhelming evidence adduced by theaccused-appellant, the factum of non-examination of DineshBhai and Rahulbhai pales into insignificance. Rahulbhaicould have only supplied some more details of the visit ofaccused-appellant to him in the secretariat which (SIC)cannot be doubted on account of entries made in the visitorsregister. Dinesh Bhai could have spoken of theaccused-appellant's stay at Ahmedabad upto the mid-night of6th and 7th July, 1989. His evidence would have been oraland subjected to usual criticism. But his non-examinationdoes not water down the impact of finding that during thedelay at least upto after the mid-day the accused wasundoubtedly present in Ahmedabad and Gandhinagar leavingaside the exact time whether upto 1.00 p.m. or 2.00 p.m. or2.30 p.m. His such presence at Gandhinagar and Ahmedabadrenders it highly improbable that he could have been in, orreached at, Singpur by 8.00 p.m. the same day.
18. Section 11 of the Evidence Act, 1872 provides thatfacts not otherwise relevant are relevant if they areinconsistent with any fact in issue or relevant fact or if bythemselves or in connection with other facts they make theexistence or non-existence of any fact in issue or a relevantfact highly probable or improbable. Illustration (a) ofSection 11 reads as under:-
(a) The question is, whether A committed acrime at [Calcutta], on certain day. Thefact that, on that day A was at [Lahore]is relevant.
The fact that near the time when thecrime was committed. A was at a distancefrom the place where it was committed,which would render it highly improbable,though not impossible, that he committedit, is relevant.
(b) xxx xxx xxx
19. The plea of alibi flows from Section 11 and isdemonstrated by illustration (a). Sarkar on Evidence(Fifteenth Edition, p. 258) states the word 'alibi' is ofLatin origin and means "elsewhere". It is a convention termused for the defence taken by an accused that when theoccurrence took place he was so far away from the place ofoccurrence that it is highly improbable that he would haveparticipated in the crime. Alibi is not an exception(special or general) envisaged in the Indian Penal Code orany other law. It is only a rule of evidence recognized inSection 11 of the Evidence Act that fats which areinconsistent with the fact in issue are relevant. The burdenof proving commission of offence by the accused so as tofasten the liability of guilt on him remains on theprosecution and would not be lessened by the mere fact thatthe accused had adopted the defence of alibi. The plea ofalibi taken by the accused needs to be considered only whenthe burden which lies on the prosecution has been dischargedsatisfactorily. If the prosecution has failed in the dischargingits burden of proving the commission of crime by the accusedbeyond any reasonable doubt, it may not be necessary to gointo the question whether the accused has succeeded inproving the defence of alibi. But once the prosecutionsucceeds in discharging its burden then it is incumbent onthe accused taking the plea of alibi to prove it withcertainty so as to exclude the possibility of his presence atthe place and time of occurrence. An obligation is cast onthe Court to weigh in scales the evidence adduced by theprosecution in proving of the guilt of the accused and theevidence adduced by the accused in proving his defence ofalibi. If the evidence adduced by the accused is of such aquality and of such a standard that the Court may entertainsome reasonable doubt regarding his presence at the place andtime of occurrence, the Court would evaluate the prosecutionevidence to see if the evidence adduced on behalf of theprosecution leaves any slot available to fit therein thedefence of alibi. The burden of the accused is undoubtedlyheavy. This flows from Section 103 of the Evidence Act whichprovides that the burden of proof as to any particular factlies on that person who wishes the Court to believe in itsexistence. However, while weighing the prosecution case andthe defence case, pitted against each other, if the balancetilts in favour of the accused, the prosecution would failand the accused would be entitled to benefit of thatreasonable doubt which would emerge in the mind of the Court.
20. Reverting back to the facts and circumstances of thecase and keeping in view the nature of the accusations madeagainst the accused-appellant and weighing the same againstthe overwhelming defence evidence adduced by theaccused-appellant in support of his plea of alibi, in ouropinion, a reasonable doubt is created in the prosecutioncase so far as the participation of this accused-appellant inthe incident is concerned.
We have already noted, the HighCourt itself, having arrived at a finding in favour of theaccused-appellant that his presence at Gandhi Nagar upto11.00 a.m. on the date of the incident cannot be doubted.That being so, it is rendered highly improbable if theaccused-appellant could have reached back village Singpur bythe time the incident happened.
21. For the foregoing reasons, we are of the opinion thatthe accused-appellant is entitled to benefit of doubt and hisappeal therefore deserves to be allowed.
22. Though we are holding Jayantibhai Bhenkarbhai, theaccused-appellant before us entitled to acquittal, we areconscious of the fact that the High Court has held fiveaccused persons guilty and convicted them with the aid ofSection 149 IPC. With the acquittal of JayantibhaiBhenkarbhai (A-9), the accused-appellant before us, thenumber of culprits who participated in the incident isreduced to less than five and the charge with the aid ofSection 149 IPC falls to the ground. We could have, inexercise of our jurisdiction under Article 136 of theConstitution, entered into the legality and propriety of theconviction of the non-appealing accused persons also.However, in the facts and circumstances of the present case,we are not inclined to do so. Though the charge with the aidof Section 149 IPC may fail, yet non-appealingaccused-persons could still have been held liable toconviction with the aid of Section 34 IPC in which event thesentences would have remained the same. Be that as it may,inasmuch as the other accused-appellants have chosen not tofile any appeal of their own, we are not inclined to enterinto examining the sustainability of the conviction of thenon-appealing accused persons.
23. The appeal filed by Jayantibhai Bhenkarbhai, theappellant before us, is allowed. His conviction underSection 302/149 IPC and Sections 147/148/452 IPC is setaside. He is directed to be acquitted. He shall be releasedforthwith if not required to be detained in any otheroffence.
24. We place on record our appreciation of the valuableassistance rendered by Ms. Tanuj Bagga Sharma, the learnedamicus as also of the fairness with which Mr. Divyang K.Chhaya, the learned counsel for the State argued the case.