Bir Singh & Anr vs State
2009 Latest Caselaw 4284 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 295/1999

                                   Reserved on: October 12, 2009

                                Pronounced on: October 23, 2009

#       BIR SINGH & ANR                             ..... Appellant

!                         Through: Mr. Mohit Mathur with Mr.
                          Shshir Mathure, Advocates.

                     Versus

$       STATE                                 .....Respondent

^                         Through: Mr. Amit Sharma, Ld. APP for the
                          State.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN



        1. Whether Reporters of Local newspapers may be allowed
           to see the Judgment?

        2. To be referred to the Reporter or not?

        3. Whether the Judgment should be reported in the
           Digest?


V.K.Jain, J.

This is an appeal against the Judgment and Order on

Sentence dated 26th May, 1999 whereby the appellant was

convicted under Section 324 of Indian Penal Code and was

released on probation.

2. The case of the prosecution in nutshell was that there was

animosity between the family of the appellant and the family of

complainant Kirpal Singh and some civil cases were pending

between them. On 19th September, 1991, at about 6.30 am, when

the complainant Kirpal Singh, accompanied by one Satish was

coming home via Ring Road, the appellant and his father Surat

Singh accompanied by another person, whom he did not know,

stopped their scooter near him. Surat Singh abused him and

threw him on the ground. When his companion Satish tried to

rescue him, the third person accompanying the appellant and his

father Surat Singh slapped him. Thereafter, the appellant took

out a knife and gave two knife blows to him, one at his chest and

the other on his back. All of them then fled away on the scooter.

The complainant was brought to Safdurjung Hospital by his

companion Satish Kumar. On being informed, the police reached

the hospital and recorded the statement of the complainant. The

appellant and his father Surat Singh were charge sheeted under

Section 307/34 of IPC.

3. The complainant came in the witness box as PW-4 and

supported the case set up in the FIR lodged by him. He stated

that on 19th September, 1991 at about 6.30 am, when he was

coming back from Moti Bagh, along with Satish and reached near

Gurudwara, Ring Road, one two wheeler scooter, driven by the

appellant Vir Singh came and stopped there. Shri Surat Singh,

father of the appellant and one boy, aged about 25-30 years, were

sitting on the scooter. Surat Singh caught hold of them and threw

him down. When he tried to get up, the appellant Vir Singh gave a

knife blow near right side of his chest near shoulder. Another blow

was given on his back. Satish brought him to the hospital in an

auto-rikshaw and the matter was then reported to the police.

4. Satish Kumar came in the witness box as PW-7, but, did not

support the prosecution. He denied having seen the incident,

though, admitted that he was returning with Kirpal Singh.

5. PW-3 Shri B.P. Rao, Senior Psychologist stated that he had

conducted Lie Detector Test on complainant Kirpal Singh as well

as on Vir Singh and his father. Vide his report Ex.PW3/A, he

reported that the involvement of appellant Vir Singh was found to

be positive, whereas the involvement of his father Surat Singh was

found to be negative in the commission of the offence. The

examination of the complainant Kirpal Singh revealed that his

statement regarding knife blow being given to him by the

appellant Vir Singh was true.

6. PW-6 A.R. Meena has proved the MLC of the complainant

and has stated that he has seen Dr.Sanjiv Suri of Safdarjung

hospital writing and signing in the course of his official duties.

7. In his statement under Section 313 of Cr. P.C., the appellant

denied the allegations against him and stated that he was

hospitalized on 18th September, 1991 and was discharged from the

hospital on 19th September, 91.

8. The trial court after considering the evidence came to the

conclusion that the appellant had given knife blows to the

complainant. However, from the dimensions of the injuries, the

learned Trial Court concluded that the injuries were not inflicted

with intention to cause death of the injured. It was noted that

since the weapon of offence had not been recovered, it could not

be said whether it was small knife or kitchen knife. The trial court

held that both the accused shared a common intention to cause

simple injury to the complainant due to some family disputes,

though, the injury caused to him was not capable to cause death

nor had the appellant any intention or knowledge to cause his

death. It was held that offence under Section 307 of IPC was not

made out. The appellant as well as his father were, therefore,

convicted under Section 324 of IPC read with Section 34 thereof.

9. The testimony of the complainant / injured stands fully

corroborated by the injuries sustained by him. A perusal of the

MLC Ex. PW6/A would show that one injury was found on the front

portion of the complainant near chest whereas, the other injury

was found on his scapular region. According to the complainant,

one injury was given near chest and the other on his back. Since

scapular region is on the back side of the body, deposition of the

injured finds full corroboration from his medical examination.

10. It was pointed out by the learned Defence counsel that the

eye witness Satish has not supported the prosecution. That by

itself, in my view, cannot be a good ground to accept the

testimon6y of the injured, if it otherwise inspires confidence. An

injured is the best witness of the incident in which he got injured

and is most unlikely to shield the real culprit and implicate an

innocent person. There has to be some strong and compelling

evidence to disbelieve the testimony of such a witness, who

himself is the victim of the crime. Though the appellant had a

previous animosity with the injured, but, as is rightly said,

previous animosity is a double-edged sword. It can be a motive for

inflicting injury and in some cases, also be the ground for false

implication. In such a case, what the Court has to see is as to

whether the testimony of the injured has well stood the test of

cross-examination and whether the accused has given a plausible

explanation for the injuries suffered by the complainant. In

appropriate cases, the Court may look for corroboration of the

testimony of the injured. In the present case, corroboration is

available in the form of medical examination of the injured.

Moreover, there is no explanation from the appellant for the

injuries sustained by them. Therefore, this cannot be said to be a

case of false implication of the appellant.

11. It was also pointed out by the learned counsel for the

appellant that it is not sure who was driving the scooter and

neither the scooter nor the knife alleged to have been used by the

appellant was seized. This by itself cannot be a valid ground to

reject the case of the prosecution as a whole, when it otherwise

inspires confidence. Seizure of scooter was not necessary whereas

recovery of knife is no more important, as the appellant has been

convicted under Section 324 and not under Section 307 of IPC and

injuries caused to him stand proved from his MLC. Since the

appellant was previously known to the complainant, identity of

driver of the scooter is immaterial.

12. It was contended by the learned counsel for the appellant

that at the time this incident is alleged to have taken place, the

appellant was admitted in the hospital as is evident from the

certificate Ex.PW8/DA, which the Investigating Officer had

collected from the hospital. Ex. PW8/DA purports to have been

issued by Sanjay Hospital and Maternity Centre and the document

certifies that Vir Singh S/o Surat Singh was admitted in the

hospital at 11 pm on 18th September, 1991 suffering from

Gaestroentites and was discharged at 8 am on 19th September,

1991.

13. It is well settled proposition of law that the onus of proving

the plea of alibi is on the accused. Though the burden on the

prosecution is not lessened because of plea of alibi taken by the

accused and such a plea is to be considered only when the

prosecution has discharged the onus placed on it, once it is done, it is

then for the accused to prove alibi with absolute certainly so as to

exclude the possibility of his presence at the spot at the time of

commission of the offence (AIR 1997 SC 322, Rajesh Kumar v

Dharambir and others). It was held in Mohan Lal Vs. State of H.P.

that plea of alibi must be proved with absolute certainty. The

appellant has not examined any doctor to prove that he was admitted

in hospital on 18th September, 91 and was under his treatment up to

8 am on 19th September, 1991. No record of Sanjay Hospital and

Maternity Centre has been produced by the appellant in his defence.

In fact, no evidence, at all, has been led by the appellant to prove the

plea of alibi set up by him. The certificate Ex. PW8/DA purports to be

issued by Dr. L.C. Sharma whose qualification is M.A. (Hindi)

R.D.S. (F.D.G., H.D.C.), M.D.H., B.I.M.S. and he claims to be a

child specialist. I am unable to appreciate how an adult person

suffering from Gastroentitis could have been under treatment of a

Child Specialist. This is not the case of the appellant that no

doctor other than Dr. L.C. Sharma was available for his treatment

in Sanjay Hospital and Maternity Centre. A perusal of the

document shows that as many as 15 Doctors are attached to the

hospital and barring Dr. L.C. Sharma and Dr. Mrs. Jaswanti

Sharma, who probably would be wife of Dr. L.C. Sharma, all other

doctors are qualified Doctors being at least M.B.B.S. Since so

many qualified Doctors were attached to this hospital, there could

have been no good reason for him to get treatment from Dr. L.C.

Sharma who is not even an MBBS and who claims to be a Child

Specialist. In the absence of examination of any Doctor and

production of record of the hospital, it cannot be said that the

appellant has been able to discharge the onus placed upon him to

prove the plea of alibi taken by him. In Kalahasthri Pattabhirami

Reddy v. State of A.P., JT 2002 (8) SC 99, the accused did not

produce record of the hospital. It was held that he had not been

able to prove alibi.

14. The learned counsel for the appellant has referred to the

decision of Hon'ble Supreme Court in Dharam Singh and Others

vs. State of Punjab, AIR 1993 SC 319. In that case accused No. 1

Dharam Singh and accused No. 2 Gurudev Singh who was none

other than his brother pleaded alibi. Both of them were employees

of Punjab Irrigation Department. The incident in that case took

place at about 7 pm, at a place which was about 40 miles away

from his office. The accused NO. 1 produced a number of officials

from Punjab Irrigation Department, who proved that he was

present in his office at Chandigarh till 7.30 pm. The Executive

Engineer of Punjab Irrigation Department supported the plea of

alibi taken by him. DW-2, who was Assistant Engineer with Punjab

Irrigation Department, deposed that on 2nd December, 1978, all

the employees of his office attended to their duties in connection

with impending visit of World Bank team and accused No. 1

therefore stayed in the office till 7.30 pm along with him. DW-4,

who was another officer working in the same department, also

corroborated the stand taken by accused No. 1 and stated that he

was working in the office till 7.30 pm for completion of official

work. It was noted that since accused No. 1 was working in the

office till 7.30 pm, he could not have come to the scene of

occurrence which was about 10 miles away and could not have

participated in the incident which took place at 7 pm. Accused No.

2 Gurudev Singh, who was brother of accused No. 1 also pleaded

alibi. He was working in Patiala office of Punjab Irrigation

Department. The Investigation Officer verified his office record

which showed that both, accused No 1 and accused No. 2had

attended their office on 2.12.1978. It thus emerged that accused

No. 2 was at Patiala and had attended his office till 5 pm. Patiala

being 40 miles away from the place of occurrence, his presence at

about 7 pm at the place of occurrence of the crime was held to be

highly doubtful. This was taken as a circumstance which rendered

the evidence of eye witnesses unreliable. However, in the present

case, there is nothing on record to show that the Investigating

Officer had verified the record of Sanjay Hospital and Maternity

Centre and had found that the appellant was admitted in that

hospital on 18th September, 1991 and was discharged from their at

8 am on 19th September, 91. In fact, no question, at all, was put to

the Investigating Officer except seeking confirmation that the

certificate Ex. PW8/DA was collected by him from the hospital.

Since neither any doctor nor record of the hospital has been

produced nor there is anything to show that the Investigating

Officer had verified the record of Sanjay Hospital and Maternity

Centre, it cannot be said that the appellant has been able to

establish that he was admitted in hospital till 8 am on 19th

September, 91. I, therefore, hold that the appellant has failed to

establish the plea of alibi. In fact, a perusal of the judgment of the

trial court would show that no plea of alibi was, at all, contended

before him.

15. For the reasons, given in the proceeding paragraphs, I find

no merit in the appeal. The appellant, though, charged under

Section 307/34 of IPC, has been convicted only u/s 324 of IPC read

with Section 34 thereof. He has also been granted benefit of

probation and has thus been given best possible benefit available

in law. The appeal is, therefore, dismissed.

(V.K. JAIN) JUDGE October 23, 2009/acm