Bir Singh and Another vs State

V.K. Jain, J.—This is an appeal against the Judgment and Order on Sentence dated 26th May, 1999 whereby the appellant was convicted u/s 324 of Indian Penal Code and was released on probation.

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 u/s 307/34 of IPC.

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.

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.

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.

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.

In his statement u/s 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.

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 u/s 307 of IPC was not made out. The appellant as well as his father were, therefore, convicted u/s 324 of IPC read with Section 34 thereof.

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.

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 testimony 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.

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 u/s 324 and not u/s 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.

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 Gaestroenteritis and was discharged at 8 am on 19th September, 1991.

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 Binay Kumar Singh and others Vs. State of Bihar, It was held in Mohan Lal v. 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 Gaestroenteritis 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 Vs. State of A.P., , the accused did not produce record of the hospital. It was held that he had not been able to prove alibi.

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, . 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. 2 had 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.

For the reasons, given in the proceeding paragraphs, I find no merit in the appeal. The appellant, though, charged u/s 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.