Allahabad High Court
Vishram @ Vishram Yadav vs State Of U.P. Thru. Prin. Secy. Home And 3 ... on 10 February, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:8384
Court No. - 12
Case :- APPLICATION U/S 482 No. - 876 of 2025
Applicant :- Vishram @ Vishram Yadav
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And 3 Others
Counsel for Applicant :- Manoj Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the applicant and learned AGA for the State as well as perused the record.
2. The present application has been filed for the following main reliefs:-
"to quash the summoning and cognizance order dated: 21.05.2024 passed by Additional Sessions Judge / Special Judge (Exclusively POCSO Act), Shrawasti in Special Sessions Trial No. 163/2024, "State versus Vishram" Case Crime No. 382/2022 under section U/S-354-A, 323, 324 I.P.C., Section 7/8 POCSO Act & Section (2)(va) S.C./S.T. Act, Police Station- Sirsiya, District-Shrawasti as well as impugned charge sheet (Police Report) bearing No. 02 dated: 22.04.2024 and proceedings of the case in pursuance thereof, pending in the court of Additional Sessions Judge / Special Judge (Exclusively POCSO Act), Shrawasti, in the ends of justice."
3. By the impugned order dated 21.05.2024, the 22.11.2024, the Additional Sessions Judge / Special Judge (Exclusively POCSO Act), Shrawasti (in short 'trial Court') has taken cognizance of the offence as indicated in the charge sheet and has summoned the applicant to face the trial under under Sections 354-A, 323, 324 of Indian Penal Code, 1860, Sections 7/8 of Protection of Children from Sexual Offences Act and Section (2)(va) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. To impeach the order impugned, learned counsel for the applicant has taken following two grounds :-
(i) The plea of alibi - The applicant, at the time of incident was not present at the place of crime.
(ii) It is a case of counter blast.
5. In so far as the plea of 'alibi' is concerned, it is a settled law that it is a plea of defence.
(i) 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 (Cri) 379]; State of Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63]".
(ii) 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."
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 482 CrPC 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.
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 161 CrPC 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 482 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 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained."
(iii) 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."
(iv) From the observations made by the Hon'ble Apex Court in the judgments referred above, what appears is as under:-
(a) The prosecution has to prove its case including the role of the accused in that incident.
(b) 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.
(c) The burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime.
(d) The burden would not be lessened by the mere fact that the accused has adopted the defence of 'Alibi'.
(e) The plea of 'Alibi' of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.
(f) 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.
(g) 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.
(h) 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.
(i) Strict proof is required for establishing the plea of 'Alibi'. [vide: Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166 : 1981 SCC (Cri) 379; State of Maharashtra v. Narsingrao Gangaram Pimple (1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63]".
6. In view of principle settled the ground taken by the applicant based on the plea of 'alibi' is hereby rejected.
7. In so far as the second ground is concerned, it would be apt to indicate that at the stage of quashing of charge sheet in exercise of power under Section 482 Cr.P.C. (now repealed) and Section 528 Bharatiya Nagrik Suraksha Sahinta, 2023 (in short "B.N.S.S.") as also at the stage of discharge or framing of charge(s), the court concerned/Magistrate is required to consider the evidence/material placed before it by the Investigating Officer (in short "I.O.") and in case of complaint, the documents/evidence placed by the complainant can be considered and defence of accused cannot be taken note of while exercising inherent jurisdiction by this Court as also the court/Magistrate concerned at the stage of discharge or framing of charge(s). The defence which is irrefutable/ indisputable/ undeniable/ unquestionable/ irrefragable may be considered in exceptional circumstances in the peculiar facts of a given case by this Court while exercising its power/ jurisdiction under the said provisions.
8. Further, it appears from the record that the I.O. during investigation recorded the statements of various persons including the victim.
9. The evidence/testimony of an victim/injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded.
10. In the instant case, the victim has supported the story of the prosecution according to which in the incident she sustained injuries and to the same effect, Dr. Sheshmani Upadhyay, Medical Officer, Children Ward, District - Hospital, Paedriatic, Bahraich, who prepared the medico-legal report on 21.10.2022, indicated that the opposite party no. 2/victim sustained following injuries :-
(i) Abrasion 3 x 2 cm on right shoulder tip
(ii) Swelling 1.5 x 1 cm on left side chek,
(iii) Abrasion 4 x 2.5 cm on left side lower
(iv) Complaint of pain all over body.
11. Considering the aforesaid, this Court is of the view that at this stage of proceedings it can't be said that no offence is made out against the applicant and accordingly, this Court finds no force in the instant application. It is, accordingly, rejected.
Order Date :- 10.02.2025
Mohit Singh/-
