By means of this application v. Devakinandan) & Ors.

2. By means of this application, the applicant has assailed the order dated 10.12.2024 passed by Fifth Additional Sessions Judge/Special Judge (Gangster Act), Gonda (in short 'trial court') in Sessions Trial No. 1094 of 2021 (State vs. Devakinandan and others).

3. Vide order impugned dated 10.12.2024, the trial court rejected the application No. 46 Kha preferred by the applicant under Section 227 Cr.P.C. seeking discharge. The relevant portion of the order dated 10.12.2024 reads as under:- अनवकषण कक उपरतनत पसतयत आरकप पत, ददपसद कक अनतररत कवचतरण हकतय सममन ककयत रयत थत। आवकदक/ पततवलल कक पररशललन कक यह सपष हह कक आवकदक/ " अकभययक कक नयतयतलय दतरत पररवतदल कक आवकदन अनतररत धतरत अकभययक कक पपवर मम नयतयतलय मम धतरत 319 ददपसद 319 कक अनतररत पथम सपचनत ररपकरर, कचककतसलय सतकय और मतमलक कक समसत तथयय एवद पररससथकतयय कक पररशललन सक पशचततत कवचतरण हकतय आहहत ककयत रयत थत, जजसमम सवयद आवकदक/अकभययक कक भल अपनल आपजत पसतयत करनक कक अवसर पदतन ककयत रयत थत। अकभयकजन और पकतरकत कक कवदतन अजधवकतओद कक रयणतवरयण पर अनयशवण करनक कक पशचततत नयतयतलय दतरत आवकदक / अकभययक कक कवचतरण हकतय आहहत ककए जतनक कत आदकश पतररत ककयत रयत हह। आवकदक/ अकभययक दतरत उनमकचन हकतय कनमनजलजखत आधतर ऊरवर ककए रए हह कक उसक वतरमतन आपरतजधक वतदद मम शतयतवतश फजर फद सतयत रयत हह। पथम सपचनत ररपकरर कवलमब एवद रतय मशकवरक कक उपरतनत कवरद पयतरप सतकय न पतनक कक कतरण आरकप पत पसतयत नहह ककयत रयत थत, कक दजर करतई रई हह, कक उसक आवकदन अनतररत धतरत 319 नतमजदरल रलत पततक हहए उसकत नतम कनकतलत रयत थत, ददपसद कक अनतररत मतत पररवतदल कक पररसतकय कक आधतर पर सममन ककयत रयत हह, जबकक अनय कत सतककयय कत सतकय अकभजलजखत ककयत जतनत शकष हह। पररवतदल दतरत भल अपनक सतकय मम उसकक कवरद सममन ककए जतनक हकतय पयतरप सतकय अकभजलजखत नहह करतयत रयत हह। पररवतदल कक मतत कवजध वयवसतयल हकनक कक कतरण उसक सममन ककयत रयत हह। कक पपवर मम उसकक कतजथ पर वह अपनक लतलजल शमतर पयत रतधकशयतम शमतर कनवतसल पयतरपयर, थतनत अकभययक दतरत उनमकचन हकतय जलए रए आधतरय पर पपवर मम नयतयतलय दतरत कवचतर कवमशर ककए जतनक पशचतत अकभययक दतरत उनमकचन हकतय यह भल आधतर जलयत रयत कतजथ कक पपवर सक हल तथत पयतरपयर जजलत बहरतइच कक पर ककरतयक पर थत तथत वहह पर कपडक बकचनक कत कतम करतत थत। इस पकतर वह घरनत कक कतजथ पर अनयत हकनक कक रक जजसकक सतयतत अथवत असतयतत कक समबनध मम ककई भल कनषकषर उभय पक रक कवशलकषण कक आलकक मम आवकदक/अकभययक आवकदक/ आदकश कदनतदककत 24.01.2024 पतररत ककयत रयत हह। आवकदव / हह कक वह कपडक कत वयवसतयल हह। कपडक लककर बहरतइच मम बकचतत थत। अकभकजथत घरनत कक घरनत कक घर कतरण अपरतध कतररत ककए जतनक कक ककई समभतवकनत नहह हह। आवकदक / आधतर तरयसदरत सतकय पर आधतररत हह, कक सतकय अगसतररत ककए जतनक कक पशवततत हल कदयत जत सकतत हह। उपयय ख अनतररत धतरत 227 कत उनमकचन आवकदन 46 अकभययक दतरत उनमकचन हकतय जलए रए उपयय कक कतरण खतररज ककए जतनक यकगय हह। ददपसद बलहलन हकनक' आदकश उनमकचन आवकदन 46 कवरचन/ सतकय हकतय कदनतदक 05.02.2025 ख खतररज ककयत जततत हह। आपजत 49 कक पसतयत कक जतए।" ख तदनयसतर कनसततररत कक जततल हह। पततवलल आरकप

4. Impeaching the impugned order dated 10.12.2024, learned counsel for the applicant says that the applicant was named in the FIR in issue i.e. FIR No. 0244 lodged by the opposite party No. 2/Rajendra Kumar Yadav on 23.06.2019 at Police Station- Karnailganj, District- Gonda making allegations therein so as to attract the offences as indicated under Sections 147, 149, 323, 504, 452 IPC and the Investigating Officer (in short "IO") after completion of investigation exonerated the applicant and thereafter, the charge sheet under Sections 147, 149, 308, 323, 325, 452, 504 IPC was not filed against the applicant. During trial, the injured witness namely Rajendra Kumar Yadav/opposite party No. 2 (PW-1) indicated the name of the applicant in the alleged incident and thereafter, based upon the statement of PW-1, an application under Section 319 Cr.P.C. was preferred. The trial court after considering the statement of PW-1 and the law related to dealing the applications under Section 319 Cr.P.C. summoned the applicant to face the trial under Sections 147, 149, 308, 323, 325, 452, 504 IPC vide its order dated 24.01.2024.

5. At this stage, on being asked, learned counsel for the applicant very fairly stated that the order dated 24.01.2024 has not been challenged by the applicant and the applicant is on anticipatory bail granted in terms of the order of this Court dated 27.02.2024 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 408 of 2024.

6. It is further stated that in the aforesaid background of the case, the applicant preferred the application under Section 227 Cr.P.C. seeking discharge before the trial court. The grounds seeking discharge indicated by the applicant's counsel, in nutshell, are as under:- (i) The applicant was exonerated by the IO during investigation. (ii) The implication of the applicant is on account of enmity. (iii) The FIR in issue was lodged with delay. (iv) Only on the basis of the statement of PW-1 (informant/opposite party No. 2), the applicant has been summoned, though, he ought to have been summoned after examination of other injured witnesses. (v) The applicant in fact was not present at the place of crime and he was present at the house of one Lalji Sharma s/o Radhey Shyam Sharma r/o Payagpur, Police Station- Payagpur, District- Bahraich. In this view of the matter, the applicant while seeking discharge took the plea of 'Alibi'.

7. It is further stated that the trial court without considering the plea(s) taken by the applicant rejected the application seeking discharge.

8. Learned AGA opposed the instant application. He says that the order impugned dated 10.12.2024 is perfectly justified and need not be interfered with by this Court in exercise of power under Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023.

9. Considered the aforesaid and perused the record.

10. Upon due consideration of the aforesaid and also the material available on record, this Court finds no force in the instant application. It is for the following reasons:-

10.1 The applicant was summoned in exercise of power under Section 319 Cr.P.C. vide order dated 24.01.2024 and the same has not been challenged in the instant application.

10.2 As per the various pronouncements, the evidence led before the trial court is to be considered while exercising power under Section 319 Cr.P.C. and an accused can be summoned in exercise of power under Section 319 Cr.P.C. to face the trial on the basis of testimony of single witness. (see: Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92, Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706, Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368, Manjeet Singh Vs. State of Haryana & Ors., (2021) 18 SCC 321, Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289, Yashodhan Singh and Others Vs. State of U. P. and Others, (2023) LiveLaw (SC) 576 : 2023 INSC 652).

10.3 The evidence/testimony of the injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly as observed by the Hon'ble Apex Court in the case(s) of State of M.P. vs. Mansingh (2003) 10 SCC 414; Abdul Sayeed vs. State of M.P. (2010) 10 SCC 259; State of U.P. vs. Naresh; (2011) 4 SCC 324 and Laxman Singh vs. State of Bihar (Now Jharkhand) (2021) 9 SCC 191 and in the instant case, the injured witness namely Rajendra Kumar Yadav/opposite party No. 2 (PW-1) indicated the name of the applicant in the alleged incident.

10.4 (a) The plea of 'Alibi' is the plea of defence. The Latin word 'Alibi' means 'elsewhere'. Plea of 'Alibi' is a rule of recognized in Section 11 of the Evidence Act. The plea of Alibi disputes the case of prosecution. Thus plea of 'Alibi' is question of fact. It is settled law that when an accused raises plea of 'Alibi', the burden is on accused to prove the same. A plea of 'Alibi' is a question of fact which is required to be proved by the accused at the stage of trial to show that he/ she was elsewhere and was falsely implicated and the accused is also required to prove the same by adducing appropriate evidence.

10.4 (b) Under Section 103 of the Evidence Act the burden rests on the accused who raises the plea of 'Alibi'. Section 103 of the Evidence Act 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 (b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it."

10.4 (c) In Binay Kumar Singh v. State of Bihar [(1997) 1 SCC 283], the Hon'ble Apex Court observed as under: "23. 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 took 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; (i) the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. (ii) The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. (iii) The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. (iv) 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. (v) 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. (vi) 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 U.P. [(1981) 2 SCC 166 : 1981 SCC Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63]". 379]; State (Cri)

10.4 (d) In Rajendra Singh v. State of U.P., (2007) 7 SCC 378 the Hon'ble Apex Court has held as under:— "8. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 CrPC 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." 482 CrPC This provision makes it obvious that the burden of establishing the plea of alibi set up by Respondent 2 in the petition filed by him under Section 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 : 1956 Cri LJ 827], Chandrika Prasad Singh v. State of Bihar [(1972) 4 SCC 140 : AIR 1972 SC 109] and State of Haryana v. Sher Singh [(1981) 2 SCC 300 : 1981 SCC (Cri) 421 : 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. 161 CrPC

13. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 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 CrPC. 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 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained." 161 482

10.4 (e) In Shaikh Sattar v. State of Maharashtra [(2010) 8 SCC 430], the Hon'ble Apex court has observed as under:- "35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC 18 : 2003 SCC (Cri) 186] as follows : (SCC p. 27, para 20) "20. … This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."

13. It is the prosecution to prove its case by adducing evidence. The petitioner is at liberty to take the plea of alibi as his defence and to establish the same with positive evidence. Before prosecution adduce evidence to establish the incident, and to prove participation of the accused, there is no scope for entertaining a defence plea of alibi."

10.4 (f) From the observations made by the Hon'ble Apex Court in the judgment(s) passed in case of Binay Kumar Singh (Supra) and Shaikh Sattar (Supra), referred above, what appears is as under:- (i) The prosecution has to prove its case including the role of the accused in that incident. (ii) Only when prosecution succeeds in discharging the burden by establishing its case including participation of the accused in the crime/incident, the plea of 'Alibi' put up by the accused needs to be considered. (iii) The burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. (iv) The burden would not be lessened by the mere fact that the accused has adopted the defence of 'Alibi'. (v) The plea of 'Alibi' of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. (vi) 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. (vii) 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. (viii) 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.