Madhya Pradesh High Court

Heman Singh Dhakad vs The State Of Madhya Pradesh on 10 March, 2022

Author: Gurpal Singh Ahluwalia

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         THE HIGH COURT OF MADHYA PRADESH
               Criminal Revision No.2691/2021
        Heman Singh Dhakad Vs. State of M.P. and others

Gwalior, Dated:10/03/2022

      Shri B.S. Dhakad, Advocate for applicant.

      Shri C.P. Singh, Panel Lawyer for respondent no.1/State.

Shri O.P. Mathur, Advocate for respondents no.2 and 3.

This Criminal Revision under Sections 397, 401 of Cr.P.C. has

been filed against the order dated 18/8/2021 passed by Fourth

Additional Sessions Judge, Shivpuri in ST No.37/2018, by which the

application filed by the applicant under Section 319 of Cr.P.C. for

summoning respondents no.2 and 3 as additional accused has been

rejected.

2. The necessary facts for disposal of the present application in

short are that an FIR was lodged by the complainant on 26/6/2017

alleging that at about 5 PM, he, Panchamsingh Dhakad, Mastram

Dhakad, Kamarsingh Dhakad, Devendra Dhakad and his mother

Shantibai Dhakad were coming back from their field. When they

reached in front of the house of Satish Dhakad, it was alleged that the

accused Maharaj Singh, Jandel, Jayendra, Girraj (respondent no.2),

who were armed with axe and Lathis stopped them and started

abusing them and scolded as to why they have cultivated their

earthen boundary. When it was objected by the complainant, then it

was alleged that the co-accused Maharaj Singh assaulted on the head

of his brother Panchamsingh twice, as a result, he sustained injuries.

Similarly, Maharaj Singh again gave an axe blow on the right

shoulder of Panchamsingh. The co-accused Jandel gave a Lathi blow

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

on the elbow of right hand of Panchamsingh. Jayendra and Girraj

(respondent no.2) assaulted the complainant on his right elbow, right

ankle and left shoulder. The co-accused Maharajsingh also gave an

axe blow to Mastram causing injury on the left side of his forehead.

The co-accused Jayendra and Girraj (respondent no.2) assaulted

Mastram causing injury on left and right elbows. When they moved

further, they were waylaid by co-accused Mangal (respondent no.3)

and Rakesh. Mangal gave an axe blow on the head of the injured

Kamar Singh, whereas Rakesh assaulted Kamar Singh by Lathi on

his right hand, left ankle as well as Rakesh also assaulted on the right

forearm and left elbow of Devendra Dhakad and on left shoulder of

Shantibai. The incident was also witnessed by Gyani Dhakad and

Jagdish Dhakad, who intervened in the matter. It was alleged that the

co-accused persons while leaving the spot, also extended a threat that

in case if the earthen boundary of the filed is cultivated, then they

would kill them.

3. It appears that the police during investigation recorded the

statements of certain witnesses, who had stated that the respondent

nos.2 and 3 had tkaen Dharamjeet to District Hospital Shivpuri as

Dharamjeet had suffered a heart attack. It was further alleged that

respondents no.2 and 3 remained in the hospital till 6 in the evening

and only thereafter, they left the hospital and thus, the police came to

the conclusion that the respondents no.2 and 3 were not present on

the spot and accordingly, no charge-sheet was filed against them.

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

After the recording of evidence begun, the applicant filed an

application under Section 319 of Cr.P.C. for summoning the

respondent nos.2 and 3 as additional accused. By the impugned order,

the said application has been rejected.

4. Challenging the order passed by the Courts below, it is

submitted by the counsel for the applicant that in the light of the

judgment passed by the Supreme Court in the case of Hardeep Singh

VS. State of Punjab and others reported in AIR 2014 SC 1400, the

Trial Court is merely required to see that the material against the

proposed accused is something more than what is required for

framing of charge and is something less than what is required for

recording conviction. The police had not collected any cogent and

reliable evidence to prove the plea of alibi of respondents no.2 and 3.

The police had merely relied upon the affidavit of certain witnesses,

which were to the effect that Dharamjeet had sustained heart attack

and respondents no.2 and 3 had taken him to the hospital and stayed

in the hospital till 6 in the evening, whereas the complainant had

specifically mentioned the presence of the respondents no.2 and 3 in

the FIR as well as their overt act, which was duly corroborated by the

medical evidence and thus, the Trial Court has wrongly rejected the

application filed under Section 319 of Cr.P.C.

5. Per contra, the application is vehemently opposed by the

counsel for respondents no.2 and 3. It is submitted that since

respondents no.2 and 3 were not present on the spot at the time of

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

incident, therefore, the police rightly did not file the charge-sheet and

no mistake has been committed by the Trial Court by rejecting the

application filed under Section 319 of Cr.P.C.

6. Heard learned counsel for the parties.

7. The Supreme Court in the case of Sagar Vs. State of U.P. and

another decided today (i.e. on 10/3/2022) in Criminal Appeal

No.397/2022 has held as under:-

"8. The scope and ambit of Section 319 of the Code has been well settled by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab and others and paras 105 and 106 which are relevant for the purpose are reproduced hereunder:

"105. Power under Section 319 CrPC is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."

9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction..............."

8. Thus, it is clear that while dealing with the application filed

under Section 319 of Cr.P.C., the Court below must consider that the

material against the proposed accused is something more than what is

required for framing of charge and is something less than what is

required for recording conviction. If the facts and circumstances of

the present case are considered in the light of the judgment passed by

the Supreme Court in the case of Hardeep Singh (supra) as well as

in the case of Sagar (supra), then it is clear that the names of

respondents no.2 and 3 were specifically mentioned in the FIR. Overt

act has also been alleged against them. The police did not file the

charge-sheet merely on the basis of the affidavits given by some of

the witnesses to the effect that one Dharamjeet had suffered heart

attack and he was admitted in the District Hospital Shivpuri and

respondents no.2 and 3 had shifted Dharamjeet to the hospital and

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

had remained in the hospital till 6 in the evening. It is fairly conceded

by the counsel for respondents no.2 and 3 that no supportive

document was collected by the police. Thus, merely on the basis of

affidavits of some of the witnesses the police accepted the plea of

alibi of respondents no.2 and 3. It is well established principle of law

that the plea of alibi should be proved by leading cogent and reliable

evidence. The Supreme Court in the case of Jitender Kumar v. State

of Haryana, reported in (2012) 6 SCC 204 has held as under :

71. Once PW 10 and PW 11 are believed and their statements are found to be trustworthy, as rightly dealt with by the courts below, then the plea of abili raised by the accused loses its significance. The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. (Ref. Sk.

Sattar v. State of Maharashtra.)

The Supreme Court in the case of Sk. Sattar v. State of

Maharashtra, reported in (2010) 8 SCC 430 has held as under :

34. Except for making a bald assertion about his absence from his rented premises, the appellant miserably failed to give any particulars about any individual in whose presence, he may have read the namaz in the morning. He examined no witness from Chikalthana before whom he may have read the Koran in the evening prior to the incident. He examined nobody, who could have seen him in the masjid during the night of the incident. Therefore, the trial court as also the High Court concluded that this plea of being away from the rented premises at the relevant time was concocted.

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

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

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 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 above noted concurrent finding of fact."

36. But it is also correct that, even though the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt. Being aware of the aforesaid principle of law, the trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant.

The Supreme Court in the case of Mukesh v. State (NCT of

Delhi), reported in (2017) 6 SCC 1 has held as under :

247. Presently, we shall deal with the plea of alibi as the same has been advanced with immense conviction. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration

(a) given under the provision is worth reproducing in this

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

context:

'(a) The question is whether A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.'

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, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. 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. 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. 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. ..."

(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra, Jitender Kumar v. State of Haryana and Vijay Pal.

9. Thus, it is clear from the material which is available on record

that there is no reliable and cogent evidence in support of the defence

of respondents no.2 and 3 to the effect that they were not present on

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2691/2021 Heman Singh Dhakad Vs. State of M.P. and others

the spot at the time of incident. Even otherwise, the plea of alibi is a

defence, which is required to be proved by the accused by leading

cogent evidence to show that they were not present on the spot at the

time of incident.

10. Under these circumstances, this Court is of the considered

opinion that sufficient material was available on record to exercise

the power under Section 319 of Cr.P.C. Thus, the Trial Court has

miserably failed in exercising its power and has wrongly rejected the