Case Summary
| Citation | Jayantibhai Bhenkarbhai v. State of Gujarat(2002) 8 SCC 165 |
| Keywords | sec 11 iea, liquor, benefit of doubt, inconsistent with fact in issue, assault, plea of alibi |
| Facts | Singha Magan came to buy liquor at house of Lalji Rajia. Singha Magan demanded liquor from Ashwin, a minor son of Lalji Rajia, which was objected by Ushniben wife of Lalji Rajia. Singha Magan was speaking foul language and was insisting on fulfilling his demand for liquor. At this point of time, Lalubhai and his brother Kantibhai, who were next door neighbors of Lalji Rajia came out, and intervened. Singha Magan annoyed by it, and he left threatening that he would see them later. Later, on the same day, Singha Magan returned back with severally armed people. They attacked over Lalubhai and killed him. Nine accused persons were charged with having committed offences punishable under Sections 302/149 and 147/148/ 452 IPC. Trial court has convicted 5 of them and acquitted 4 of them on the ground of the benefit of doubt. High Court also upheld the conviction of all five of them. One accused Jayantibhai Bhenkarbhai appealed in Supreme Court by special leave on the ground of alibi. The accused denied his participation in the incident, and said on the same day, he was present at Ahmedabad to attend hearing in an election appeal filed by him before Additional Development Commissioner. After this, he went to zoo. Seeing zoo, he went to meet his friend. |
| Issues | Whether Jayantibhai, the accused- appellant can be held to have participated in the incident of assault and as a member of unlawful assembly? |
| Contentions | |
| Law Points | ➢ The word ―alibi is of Latin origin and means ―elsewhere. ➢ The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). It is a convenient 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. ➢ It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact 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. ➢ 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. ➢ Section 103. Burden of proof as to particular fact -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. ➢ Court having arrived at a finding in favour of the accused appellant, that his presence at Gandhi Nagar up to 11.00 a.m. on the date of the incident cannot be doubted. |
| Judgement | The Supreme Court observed, we are of the opinion that the accused-appellant is entitled to benefit of doubt and his appeal therefore deserves to be allowed. |
| Ratio Decidendi & Case Authority | Section 11 of the Indian Evidence Act, 1872: “When facts not otherwise relevant become relevant: facts not otherwise relevant are relevant (i) if they are inconsistent with any fact in issue or relevant fact, (ii) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.” |
Full Case Details
R.C. LAHOTI AND BRIJESH KUMAR, JJ. – 1. In an incident which took place in
Village Singpur of Taluk Songadh, Gujarat on 6-7-1989 at about 8.30 p.m. one Lalubhai
Naranbhai died on account of injuries inflicted on him. Nine accused persons were charged
with having committed offences punishable under Sections 302/149 and 147/ 148/452 IPC.
Four accused persons, namely, Accused 2, 4, 5 and 8 were directed to be acquitted by the trial
court as the charges against them were not proved and they were entitled to the benefit of
doubt. Accused 1, 3, 6, 7 and 9 were held guilty of having committed the offence punishable
under Sections 302/149 IPC. These five accused persons were sentenced to undergo
imprisonment for life and a fine of Rs 250 each and in default to further undergo rigorous
imprisonment for one month each. They were further sentenced to undergo rigorous
imprisonment for one year each for having committed offences under Sections 147/148 and
452 IPC and also to pay a fine of Rs 125 and in default of payment to undergo further
imprisonment of one month each. The sentences were directed to run concurrently. All the
five convicted accused persons preferred appeal before the High Court which has been
dismissed. Accused 1, 3, 6 and 7, namely, Singha Magan, Dina Afiniya, Digniya Rama and
Rupa Singha have accepted the judgment of the High Court and have not pursued challenge
to their conviction up to this Court. It is only Accused 9 Jayantibhai Bhenkarbhai who has
filed this appeal by special leave.
2. The prosecution case briefly stated is that Accused 1 Singha Magan came to visit the
house of one Lalji Rajia at about 6.00 p.m. on 6-7-1989. Lalji Rajia was not at his house.
Singha Magan demanded liquor from Ashwin, a minor son of Lalji Rajia, which was objected
to by Ushniben, the wife of Lalji Rajia. There was some verbal altercation. Singha Magan (A1) was speaking in a foul language and was argumentative insisting on fulfilling his demand
for liquor. At this point of time, Lalubhai and his brother Kantibhai, who were next-door
neighbours of Lalji Rajia came out and intervened and chastised the accused Singha Magan
by telling him that in the absence of Lalji Rajia, the accused should not have harassed the lady
who was alone in the house. The accused was asked by Lalubhai to leave that locality and go
away. This annoyed the accused and he left threatening that he would see him later.
3. At about 8.00 p.m. on the same day, Accused 1 Singha Magan returned to the house of
the deceased accompanied by Accused 2 to 9. The accused persons were severally armed.
Accused 1 Singha Magan was armed with a knife, Accused 7 Rupa Singha had a pestle with
him. Accused 6 Digniya Rama and Accused 9 Jayantibhai Bhenkarbhai were armed with
sticks. The incident was witnessed by Kantibhai and Thakorebhai, brothers of the deceased.
The accused persons fled away after assaulting the victim. Thakorebhai went to Channabhai
Dhirubhai and narrated to him the incident. He advised for a report being lodged with the
police. Thakorebhai accompanied by Channabhai Dhirubhai went to Ukai Police Station
situated at a distance of about 10-12 km and lodged FIR of the incident at 6.00 a.m. on 7-7-
1989. A cognizable offence was registered and investigation commenced.
4. Shortly after the incident of assault Lalubhai succumbed to his injuries. Post-mortem
on the dead body was performed by Dr Surendra, Medical Officer, General Hospital,
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Songadh. The deceased was found to have sustained 22 injuries out of which 3 were incised
wounds and remaining were contused lacerated wounds or abrasions. On internal
examination, the deceased was found to have sustained fracture of right 5th and 6th ribs at the
level of right mid-clavicular line and fracture of left 7th, 8th and 9th ribs at the level of left
mid-scapular line. The injuries were ante-mortem. The incised wounds could have been
caused by a sharp-cutting weapon such as a knife while other injuries could have been caused
by a blunt object such as a stick, pestle or the back portion of a dharia.
5. The short question for decision in this appeal is whether Jayantibhai, the accusedappellant can be held to have participated in the incident of assault and as a member of an
unlawful assembly.
6. The accused denied his participation in the incident of assault on the deceased. His
defence is that a day before the incident he had left Village Singpur and gone to Ahmedabad
in order to attend a hearing in an election appeal filed by him before the Additional
Development Commissioner which was 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 was accused and pending for trial in the Court of Judicial
Magistrate at Vyara. Therein also the date of hearing was appointed as 6-7-1989 and his
personal appearance was required. In the election appeal Kantilal Shah, DW 3 was the
advocate appointed by him. The election appeal had come up for hearing on 14-6-1989 and
was adjourned for hearing on 6-7-1989. In the criminal case at Vyara, Dhansukhbhai, DW 4
was the counsel appointed by the accused-appellant. Kantilal Shah, DW 3 had, on the hearing
being adjourned on 14-6-1989, sent a postcard to the accused-appellant informing him that the
hearing would positively take place on 6-7-1989 which he must attend. As the accusedappellant could not have attended both the cases, i.e., the criminal case at Vyara and the
election appeal at Gandhinagar, both fixed for 6-7-1989, he had through counsel Shri
Dhansukhbhai, DW 4 moved an application in the Court of Judicial Magistrate, Vyara
seeking exemption from personal appearance and an adjournment. This application was
rejected on 6-7-1989 and the learned Judicial Magistrate at Vyara directed warrants to be
issued against the accused. However, the accused-appellant did attend the hearing before the
Additional Development Commissioner on 6-7-1989. The hearing commenced after 11.00
a.m. and continued up to 2.30 p.m.
7. The version of the defence proceeds to say that the accused-appellant went to see and
was going around the zoo at Ahmedabad for about half an hour commencing at 4.00 p.m.
Thereafter, he went to Gandhinagar to meet one Rahulbhai who was employed as a clerk in
the Secretariat at Gandhinagar. He secured a pass for entry in the Secretariat and he signed the
entry register wherein his name is mentioned along with his signatures. The accused then
returned to Ahmedabad and went to stay with one Manekbhai, DW 2. It was at about
midnight that Manekbhai and Dineshbhai went to see off the accused-appellant at the bus
station at Ahmedabad where the accused-appellant boarded a bus originating from a station in
Rajasthan and proceeding to Songadh and reached Singpur in the morning of 7-7-1989. This
register was summoned in evidence and the accused-appellant appearing as DW 2 has
deposed on oath to the entry made in his presence by the clerk concerned and the signatures
put by him on the register.
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8. The accused himself chose to appear in the witness box and took oath to depose in
support of his own version. He also examined Kantilal Shah, Advocate, DW 3 and
Ramanbhai, DW 5, clerk in the office of the Additional Development Commissioner.
According to Ramanbhai, DW 5 the Additional Development Commissioner was regular in
coming to the office at 10.30 a.m. and his routine was to attend to miscellaneous work,
including disposal of the mail received, for about half an hour and commence hearing of cases
at 11.00 a.m. The appellant’s case was at Item 4. The first three cases did not proceed and
therefore the hearing of the appellant’s case was taken up at about 11.30 a.m. and lasted up to
2.00 or 2.30 p.m. In the records maintained in the office of the Additional Development
Commissioner, the presence of the accused-appellant along with his counsel Kantilal Shah,
DW 3 is recorded and both have signed in token of their having attended the office of the
Additional Development Commissioner and participated in the hearing. Ramanbhai, DW 5
has further deposed that he used to remain present during the course of hearings by the
Additional Development Commissioner and take notes of the submissions made which he did
on 6-7-1989 also. In view of the involvement of the accused-appellant having been alleged in
the incident, he moved an application to the Additional Development Commissioner to issue
certificate showing his presence in the office of the Additional Development Commissioner
on 6-7-1989. Certificate in that regard was issued though the time at which the accusedappellant was present before the Additional Development Commissioner was not mentioned
in the certificate; obviously because a record of such time is not maintained. The fact remains
that the accused-appellant was in attendance in the office of the Additional Development
Commissioner at Gandhinagar sometime after 11.00 a.m. on that day. The postcard dated 19-
6-1989 written by Kantilal Shah, Advocate to the accused-appellant and sent through post
bearing postal stamps and seals was produced in evidence wherein it has been communicated
by the counsel to the appellant that his default in appearance on 14-6-1989 was viewed
seriously and his appearance on 6-7-1989 was a must. On this very ground the appellant had
moved an application before the Judicial Magistrate, Vyara seeking exemption from personal
appearance on 6-7-1989. In support of the said application the postcard sent by Advocate
Kantilal Shah was filed. The record of this application accompanied by a postcard was
summoned in the trial court and proved by Dhansukhbhai, Advocate, DW 4 appearing for the
accused-appellant before the Magistrate’s Court at Vyara.
9. The accused-appellant also produced in evidence two tickets of the zoo purchased by
him for himself and Dineshbhai on 6-7-1989. He also produced the bus tickets issued by the
conductor of the bus by which he had travelled from Ahmedabad to Singpur. The appellant
had boarded the bus at about 1.00 a.m., that is, a little after the midnight of 6-7-1989/7-7-1989
and reached Singpur in the morning of 7-7-1989.
11. Babulal, PW 9, the investigating officer has admitted during his cross-examination
that if the road is clear and there are no obstructions then ST bus can reach Ahmedabad from
Songadh village in 8 hours. However, he further admitted that if one has to travel by ST bus
from Songadh to Ahmedabad then all ST buses go to Ahmedabad from Songadh invariably
via Surat which would take a little longer time.
12. The High Court took into consideration the plea of alibi taken by the accusedappellant and formed an opinion that the plea was not strictly proved as required so as to
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completely exclude the possibility of the accused having been present at the place and time of
the incident. The reasons assigned by the High Court are that through the prosecution
evidence the involvement of the accused in the incident is proved beyond reasonable doubt.
As against this, the conduct of the accused-appellant appears to be unnatural inasmuch as he
did not promptly (that is, on 7-7-1989 itself) approach the investigation officer to tell him that
he was being falsely implicated as he was in fact in Ahmedabad on the date and at the time of
the incident. In the opinion of the High Court the plea of alibi was not also fully substantiated
in view of non-examination of Dineshbhai, who had accompanied the accused in Ahmedabad
while he boarded the bus for Songadh and Rahulbhai, the clerk in the Secretariat to whom the
accused claims to have gone to meet at about 5.15 p.m. on 6-7-1989.
13. These very reasons were assigned by the trial court for disbelieving the plea of alibi
taken by the accused-appellant. However, an additional reason assigned by the trial court is
that in the application for anticipatory bail the accused has stated his presence in the office of
the Additional Development Commissioner up to 1.00 p.m. only while later on he tried to
improve upon his version by pleading that he had remained present there up to 2.30 p.m. Vide
para 27.1 of the judgment, the High Court while appreciating the defence evidence, has
arrived at a positive finding that the accused-appellant has been able to prove by his evidence
his presence at about 11.00 a.m. at Gandhinagar in the office of the Additional Development
Commissioner. Thus, even in the opinion of the High Court, the plea of the accused that he
had on the date of the incident gone to Ahmedabad to take part in the hearing of his appeal
fixed before the Additional Development Commissioner is not false and at least at 11.00 a.m.
he was present thereat.
14. In the facts and circumstances of this case, we propose to begin by dealing with the
evidence of alibi adduced by the accused-appellant. We have no reason to disbelieve the
statement of Kantilal Shah, Advocate, DW 3 and Ramanbhai, DW 5, the clerk who have
deposed that the hearing before the Additional Development Commissioner had taken place
on that date and that the accused was present at the time of hearing. The hearing must have
lasted for a reasonable length of time assuming without holding that it had not continued up to
2 or 2.30 p.m. We have also no reason to doubt the entry in the Secretariat register wherein
the name and particulars of the accused-appellant are mentioned as one of the visitors to the
Secretariat on that date along with the signatures of the accused-appellant against the entry.
This shows that on 6-7-1989 the accused did visit Gandhinagar. Assuming that the accusedappellant had departed from the office of the Additional Development Commissioner at the
conclusion of hearing of his case, he must have spent a reasonable time in visiting the
Secretariat which would obviously be during the working hours of the day. Thereafter, he
may have left Gandhinagar for Songadh. According to the available modes of transport he
would have taken a bus from Gandhinagar for Ahmedabad and from Ahmedabad he would
have boarded a bus for Songadh which would proceed via Surat only. A public transport
required to cover a distance of about 300 km allowing a reasonable margin for the time lost in
stoppages on the way, would take about 8 to 10 hours to reach Songadh. It does not appear
probable that the accused-appellant could have reached Singpur and participated in the
incident which is said to have taken place at about 8.00 p.m.
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15. On the next day the accused-appellant learnt of the Judicial Magistrate, Vyara having
turned down his prayer for exemption from personal appearance before the court at Vyara on
6-7-1989 and consequently having issued a warrant of arrest for securing the presence of the
accused before him. The accused-appellant rushed to Vyara, appeared in the court and moved
an application for recalling the warrant of arrest stating the factum of his presence before the
Additional Development Commissioner at Gandhinagar on 6-7-1989. This application was
allowed and the warrant of arrest was recalled. These relevant facts have been deposed to by
reference to the documents from the record of the Judicial Magistrate, Vyara by
Dhansukhbhai, Advocate, DW 4.
16. We have carefully gone through the prosecution evidence. Although the trial court as
well as the High Court have recorded a finding of the accused-appellant having participated in
the incident but a few prominent features of the prosecution case and of the findings arrived at
by the two courts need to be noticed. All the four eyewitnesses are not specific about the overt
act attributed to this accused-appellant. While some witnesses attribute two specific injuries
on the person of the deceased having been caused by this accused-appellant, others only make
a generalized statement of this accused-appellant also having participated in the assault. There
is another accused also, namely, Digniya Rama (A-6) who was armed with a stick. A stick
stated to have been used in the incident has been recovered from the accused Digniya Rama
(A-6). No recovery has been made from the accused-appellant. Secondly, the incident took
place at about 8 p.m. while the first information report of the incident was lodged at 6 a.m. at
a police station situated at a distance of about 10 to 12 km from the village where the incident
took place. The FIR cannot be said to be belated. But the fact remains that the first informant
was in the company of Channabhai Dhirubhai, a political rival of the accused-appellant, soon
after the incident and before and at the time of lodging of FIR. A possibility of some
embellishment having crept into the FIR in view of the political influence wielded by such
opponent of the accused-appellant cannot be completely ruled out. Thirdly, this accusedappellant, from the very beginning, no sooner he learnt of the accusation against him, took the
defence of alibi by informing the necessary facts to the investigating officer on 8-7-1989
itself. Thereafter, this plea of alibi has been consistent and reflected in several documents of
undoubted veracity as also substantiated by the testimony of such witnesses who do not have
any animus to falsely depose in favour of the accused. There is also supporting documentary
evidence of unimpeachable veracity adduced in support of the defence plea.
17. In view of the overwhelming evidence adduced by the accused-appellant, the factum
of non-examination of Dineshbhai and Rahulbhai pales into insignificance. Rahulbhai could
have only supplied some more details of the visit of the accused-appellant to him in the
Secretariat which visit cannot be doubted on account of entries made in the visitors’ register.
Dineshbhai could have spoken of the accused-appellant’s stay at Ahmedabad up to the
midnight of 6-7-1989 and 7-7-1989. His evidence would have been oral and subjected to the
usual criticism. But his non-examination does not water down the impact of finding that
during the day at least up to after midday the accused was undoubtedly present in Ahmedabad
and Gandhinagar leaving aside the exact time whether up to 1.00 p.m. or 2.00 p.m. or 2.30
p.m. His such presence at Gandhinagar and Ahmedabad renders it highly improbable that he
could have been in, or reached, Singpur by 8.00 p.m. the same day.
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18. Section 11 of the Evidence Act, 1872 provides that facts not otherwise relevant are
relevant if they are inconsistent with any fact in issue or relevant fact or if by themselves or in
connection with other facts they make the existence or non-existence of any fact in issue or a
relevant fact highly probable or improbable.
19. The plea of alibi flows from Section 11 and is demonstrated by Illustration (a).
Sarkar on Evidence (15th Edn., p. 258) states the word “alibi” is of Latin origin and means
“elsewhere”. It is a convenient 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 fact 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 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 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 the benefit of that reasonable doubt which would emerge in
the mind of the court.
20. Reverting back to the facts and circumstances of the case and keeping in view the
nature of the accusations made against the accused-appellant and weighing the same against
the overwhelming defence evidence adduced by the accused-appellant in support of his plea
of alibi, in our opinion, a reasonable doubt is created in the prosecution case so far as the
participation of this accused-appellant in the incident is concerned. We have already noted,
the High Court itself, having arrived at a finding in favour of the accused-appellant that his
presence at Gandhinagar up to 11.00 a.m. on the date of the incident cannot be doubted. That
being so, it is rendered highly improbable if the accused-appellant could have reached back to
Village Singpur by the time the incident happened.
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21. For the foregoing reasons, we are of the opinion that the accused-appellant is entitled
to the benefit of doubt and his appeal therefore deserves to be allowed.
22. Though we are holding Jayantibhai Bhenkarbhai, the accused-appellant before us
entitled to acquittal, we are conscious of the fact that the High Court has held five accused
persons guilty and convicted them with the aid of Section 149 IPC. With the acquittal of
Jayantibhai Bhenkarbhai (A-9), the accused-appellant before us, the number of culprits who
participated in the incident is reduced to less than five and the charge with the aid of Section
149 IPC falls to the ground. We could have, in exercise of our jurisdiction under Article 136
of the Constitution, entered into the legality and propriety of the conviction of the nonappealing 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 aid of Section 149 IPC may fail, yet
the non-appealing accused persons could still have been held liable to conviction with the aid
of Section 34 IPC in which event the sentences would have remained the same. Be that as it
may, inasmuch as the other accused have chosen not to file any appeal of their own, we are
not inclined to enter into examining the sustainability of the conviction of the non-appealing
accused persons.
23. The appeal filed by Jayantibhai Bhenkarbhai, the appellant before us, is allowed. His
conviction under Sections 302/149 IPC and Sections 147/148/452 IPC is set aside. He is
directed to be acquitted. He shall be released forthwith if not required to be detained in any
other offence.
