Section 11 Evidence Act: Appreciation of plea of alibi

APPEAL

1. This appeal calls into question the correctness of a judgment and order passed by the High Court of Chhattisgarh in Criminal Appeal No.596 of 1992 by which the guilt of the accused and the sentence of imprisonment imposed in Sessions Trial No.198 of 1988 vide a judgment dated 11.05.1992 stands confirmed.

2. Challenging their conviction, before us are three convict(s) – appellants, namely, Kamal Prasad (A-3); Shersingh (A-6); and Bhavdas (A-9).

3. The convict-appellants stand convicted of having committed an offence punishable under Sections 148, 302 read with 149, 307 read with 149, Indian Penal Code, 18601 and Sections 4/5 of the Explosive Substance Act, 1908 under which the sentence awarded varies from rigorous imprisonment for 3 years to life imprisonment, all to run concurrently.

THE PRESENT APPEAL

1. Before us, the aforesaid convict-appellants have assailed the impugned judgment on four fronts- (a) Inordinate delay in filing of the First Information Report (F.I.R.) (Ex.15) introduces to the case, the possibility of improvements thereby casting doubt on the version of the prosecution; (b) the testimonies of the witnesses of the prosecution being contradictory, hence unreliable; (c) the deceased being a history-sheeter, having numerous cases pending against him, hence equal probability that someone other than the convict(s)-appellant(s) favouring and wanting, his elimination; and (d) that the accused persons were, in fact, not at the scene of the crime and their plea of alibi is probable.

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DELAY IN LODGING FIR

1. Before proceeding to the four contentions advanced, firstly it would be necessary for us to appreciate the principles of law in respect of delay in registration of FIR as evolved over time.

13.1 This Court in Apren Joseph v. State of Kerala [(1973) 3 SCC 114], has observed that “Undue unreasonable delay in lodging the FIR”, “inevitably gives rise to suspicion which puts the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version.” The Bench of three learned Judges further observed that no time duration, in the abstract could be fixed as the ‘reasonable time’ to give information to the police and therefore, the same is a question to be determined as per facts and circumstances of each case.

13.2 Further, referring to Ram Jag v. State of U.P [(1974) 4 SCC 201], this Court in State of M.P. v. Ratan Singh [(2020) 12 SCC 630] observed that Courts when faced with the question of delay in registration of FIR are duty-bound to determine whether the explanation afforded is plausible enough based on the given facts and circumstances of each case.

13.3 This Court recently in Bhagwan Singh v. Dilip Singh alias Depak & Anr [2023 SCC OnLine 1059] has observed that if the prosecution attempts to ‘improvise its case stage by stage and step by step’ during the intervening period, it would be open for the accused to contend that the delay was fatal to the proceedings and the same was done to ‘stave off proceedings against the accused’.

1. In respect of the first contention put forth by the convict appellants it is seen from the record that the FIR was registered about two hours after the incident having taken place on 17.04.1988 at about 08.00 a.m. The document itself records the time of incident as being 8.15 a.m. and the time of report as being 11.00 a.m. The testimony of PW-3 at whose instance the FIR was recorded, shows that out of fear and having sustained numerous injuries, he ran from the place of occurrence and hid in the house of Baisakhu Kewat and only emerged therefrom two hours later. In such a situation, delay in filing of the FIR cannot be said to be fatal to the case of the prosecution more so in view of the injuries sustained by him; the place of occurrence being a remote village area and that the version of events was dictated to the police by this witness only upon their reaching his place of shelter. To us it does not appear to be a case of prior consultation; discussion; deliberation or improvements.

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DEFENCE OF PLEA OF ALIBI [SECTION 11 EVIDENCE ACT., 1973]

1. Another defence taken by the convict-appellants is that of the plea of alibi. This Court in Binay Kumar Singh v. State of Bihar [(1997) 1 SCC 283] has noted the principle as:

“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.”

1. The principles regarding the plea of alibi, as can be appreciated from the various decisions [Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Binay Kumar Singh (supra) Jitender Kumar v. State of Haryana (2012) 6 SCC 204; Vijay Pal v. State (Govt. of NCT of Delhi) (2015) 4 SCC 749; Darshan Singh v. State of Punjab (2016) 3 SCC 37; Mukesh v. State (NCT of Delhi) (2016) 6 SCC 1; Pappu Tiwari v. State of Jharkhand 2022 SCC OnLine SC 109] of this Court, are:

19.1 It is not part of the General Exceptions under the IPC and is instead a rule of evidence under Section 11 of the Indian Evidence Act, 1872.
19.2 This plea being taken does not lessen the burden of the prosecution to prove that the accused was present at the scene of the crime and had participated therein.
19.3 Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden.
19.4 The burden to establish the plea is on the person taking such a plea. The same must be achieved by leading cogent and satisfactory evidence.
19.5 It is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the spot of the crime. In other words, a standard of ‘strict scrutiny’ is required when such a plea is taken.

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ALIBI NOT PROVED

1. In our considered view, both these defence witnesses do not conclusively establish the plea of alibi, based on the principle of preponderance of probability as their statements stand unsupported by any other corroborative evidence. Not only that, no reason stands explained in such testimony for A-9 having travelled from Bhalesur to Sundri in order to go to Sandi Bazar. It is a matter of record that A-9 is a resident of Bhalesur where he resided with his family. He owned farms in Sundri. The family of A-9 was not examined to substantiate the claim of such travel. For those reasons, we cannot believe the version testified to by DW-1 and DW-2. We also cannot ignore that all 3 primary witnesses of the prosecution i.e., PW-3, PW-16, and PW-17 have categorically deposed the presence of the convict-appellants at the spot of the crime and such a statement could not be shaken in cross-examination.

2. We find that for the plea of alibi to be established, something other than a mere ocular statement ought to have been present. After all, the prosecution has relied on the statement of eyewitnesses to establish its case against the convict-appellants leading to the unrefuted conclusion that convict-appellants were present on the spot of the crime and had indeed caused injuries unto the deceased as also PW-3 with Lathis and Tabbal on various and vital parts of their bodies.

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1. It may be true that the deceased Chetram was a history sheeter and had scores of criminal cases pending against him or cases in which he was involved. However, such fact is unsubstantiated on record for no detail whatsoever stands provided in respect of such cases involving the deceased. Be that as it may, simply because the deceased had a chequered past which constituted several run-ins with the law, Courts cannot give benefit thereof, particularly when such claims are bald assertions, to those accused of committing such a person’s murder. And in any event, such a plea is merely presumptuous.

2. In conclusion, we find that the charges levied against the accused, i.e., under Sections 148, 302 read with 149, 307 read with 149, IPC, and Sections 4/5 of the Explosive Substance Act, 1908, and the sentence corresponding thereto as awarded by the Trial Court and confirmed by the High Court, do not warrant interference of this Court. It may also be observed that the sentences awarded are in no manner excessive or disproportionate to the crimes for which the convict-appellants stand convicted.

3. The appeal, therefore, fails and is accordingly dismissed.

4. The bail granted by this Court vide order dated 1st October 2012, stands cancelled. The appellants are directed to surrender forthwith. The concerned trial court to take consequential steps.

5. Pending Interlocutory application(s), if any, shall stand disposed of.

PARTY: KAMAL PRASAD & ORS Versus THE STATE OF MADHYA PRADESH (NOW STATE OF CHHATTISGARH) – CRIMINAL APPEAL No.1578 OF 2012 – 2023INSC895 – 10 October, 2023.

https://main.sci.gov.in/supremecourt/2010/38994/38994_2010_9_1501_47547_Judgement_10-Oct-2023.pdf
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