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2019 DIGILAW 1835 (ALL)

Mukesh Sharma v. State of U. P.

2019-07-31

RAJUL BHARGAVA

body2019
JUDGMENT : Rajul Bhargava, J. Heard Sri J.B. Singh, learned counsel for the applicant, Sri Deepak Dubey and Sri Siddhartha Shankar Mishra, learned counsels for opposite party no. 2 as well as learned A.G.A. and perused the material placed on record. 2. Instant application has been filed with the prayer to quash the impugned order dated 30.1.2019 and 14.06.2019 passed by Additional District and Sessions Judge, Hapur in Session Trial No.253 of 2016 (State Versus Ankush and others) bearing Case Crime No.408 of 2014 under Sections 147, 148, 149, 302, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station Hapur Nagar, District Hapur and further direct learned trial judge to summon the witness i.e. record keeper/Officer of (Immigration Department), Indira Gandhi International Airport, New Delhi along with record as mentioned in the application moved by the applicant under Section 233(2) Cr.P.C. 3. The factual background, in short, giving rise to present petition is that according to prosecution the F.I.R. was lodged by opposite party no.2 against six accused persons including the applicant registered under aforesaid case crime number and sections on 13.07.2014 at 1.15 p.m. It is alleged that the applicant and his associates on account of enmity over family property dispute on 13.07.2014 at 11.45 a.m. surrounded informant's son in front of his house and all the accused resorted to indiscriminate firing due to which he succumbed to the injuries subsequently. After investigation charge-sheet was laid and the case was committed to the court of sessions. It is pertinent to mention here that the applicant is in jail since 5.12.2014. The applicant moved his bail application in which he has taken specific plea that aforesaid incident took place at about 11.45 a.m. on 13.07.2014 near the house of the deceased but in fact the applicant was not present in India at the time and date of the incident and was present in Nepal. In fact, the applicant along with his brother, Sanjay had gone to Kathmandu on 12.07.2014 by Indigo No.6E31 and the flight departed at 11.25 a.m. on 12.07.2014, the copy of Boarding Passes and air tickets were also appended along with the bail application. It was also stated that the applicant and co-accused, Sanjay came back from Kathmandu to New Delhi by Indigo Flight No.6E34, departure time 8.10. p.m. on 13.07.2014 and the applicant was travelling in the said Flight on Seat No.47. It was also stated that the applicant and co-accused, Sanjay came back from Kathmandu to New Delhi by Indigo Flight No.6E34, departure time 8.10. p.m. on 13.07.2014 and the applicant was travelling in the said Flight on Seat No.47. The copies of the air tickets and the Boarding Passes and relevant documents were also appended along with bail application. It was also stated that during 12.07.2014 and 13.07.2014, he and co-accused, Sanjay stayed in Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal. Copy of the receipt of said hotel was also appended with the bail application. Therefore, a specific plea of alibi was taken that it was impossible for the applicant to be present at the place of occurrence on 13.07.2014 at about 11.45 a.m. by no stretch of imagination. 4. The case was committed to the court of sessions. After the closure of prosecution evidence, the statement of the applicant and other accused was recorded under Section 313 Cr.P.C. on 12.11.2018. In reply to a specific question as to whether the applicant wants to lead any defence evidence, to which his answer was in affirmative ¼th gkWa½ . Thereafter, the case was fixed for defence evidence. Insofar as the applicant is concerned, he moved an application 28Ga under Section 233 Cr.P.C. to summon the witnesses mentioned in the application to prove his plea of alibi that he was travelling from New Delhi to Kathmadu and Kathmandu to New Delhi in Indigo Flight No.6E31 and 6E34 on 12.07.2014 and 13.07.2014. In its proof, tickets and boarding passes were also appended with the application. Besides it, in support of plea of alibi papers regarding stay of the applicant in Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal were also filed, especially the cash receipts. The prayer for summoning following was made: 1.Record keeper/concerned Officer Indira Gandhi International Airport, New Delhi along with record of Indigo Flight Nos. 6E31 dated 12.07.2014 and 6E34 dated 13.07.2014. 2.Record to prove that the applicant had travelled on the aforesaid boarding passes in respect of aforesaid flights. 3.Manager, Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal along with copy of the record of cash receipt dated 13.07.2014. 5. 6E31 dated 12.07.2014 and 6E34 dated 13.07.2014. 2.Record to prove that the applicant had travelled on the aforesaid boarding passes in respect of aforesaid flights. 3.Manager, Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal along with copy of the record of cash receipt dated 13.07.2014. 5. The said application was strongly opposed by the learned Additional Government Counsel (criminal) as well as learned counsel for the informant on the ground that the application was moved by the applicant to prove his defence plea of alibi for the purpose of vexation, causing delay in disposal of the trial and for defeating the ends of justice. Therefore, the same may be rejected. It was also objected that plea of alibi taken by the applicant is an afterthought one in order to get himself acquitted whereas this plea of alibi was neither disclosed by him to the Investigating Officer nor at the time of framing of charge that on the basis of plea of alibi, he may be discharged nor any such suggestion was given to any witness that he was present in Kathmandu at the time of the incident and lastly even in statement under Section 313 Cr.P.C. the applicant has not stated anything about plea of alibi. Therefore, the application moved for defence evidence is liable to be rejected. 6. Learned trial judge vide order dated 30.1.2019 on the aforesaid objections raised by Additional Government Counsel (criminal) as well as learned counsel for the informant, rejected the application under Section 233 Cr.P.C. He has quoted Section 233 (3) Cr.P.C. and has recorded that it appears that this plea of alibi is being set up by the applicant for the first time and was never made part of investigation or discharge was claimed on its basis or stated a word about leading defence evidence in respect of alibi under Section 313 Cr.P.C. that at the time of incident he was in Nepal. On this ground he recorded that it appears that this application has been moved merely to delay the trial. 7. Learned counsel for the applicant has submitted that the incident took place in the year 2014 and charge-sheet was filed on 3.09.2014. On this ground he recorded that it appears that this application has been moved merely to delay the trial. 7. Learned counsel for the applicant has submitted that the incident took place in the year 2014 and charge-sheet was filed on 3.09.2014. The case was thereafter committed to the court of sessions and it remained pending for more than three years for recording of prosecution evidence and the statement of the applicant and other accused under Section 313 Cr.P.C. was recorded on 12.11.2018 and the order dated 30.1.2019 could not be challenged by the applicant as he is languishing in jail since 5.12.2014. However, another application under Section 233(2) Cr.P.C. was moved on behalf of the applicant for summoning aforesaid witnesses to prove his plea of alibi. The opposite party no.2 again filed objections to the said application. Opposite party no.2/informant moved two transfer applications before Sessions Judge on 12.3.2019 and 4.4.2019. The second application i.e. 54Kha moved on behalf of the applicant for leading defence evidence to establish plea of alibi has again been rejected by the trial judge vide impugned order dated 14.06.2019 more or less on the same ground as the same was rejected by earlier order dated 30.1.2019. Learned counsel for the applicant has assailed both the impugned orders on the ground that learned trial judge has not applied his judicial mind and has not passed impugned orders in the light of true scope and ambit of provisions of Section 233(2)Cr.P.C. and has merely recorded that application to lead defence evidence has been made for the purpose of vexation, delay and defeating the ends of justice and without giving any plausible reason rejected the same. 8. One of the grounds for rejecting the application for summoning of the witnesses, Manager, Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal is that the said witness resides in a foreign country and if he is summoned it shall take considerable time to examine him which will delay the trial. I may record that the reasons given by the learned Judge are apparently preposterous. There are various pronouncements that the statement of the such witnesses can be recorded through Video Conferencing and if the accused is ready to bear the expenses of the Manager of the Hotel to prove that the applicant had stayed in the hotel on 12.07.2014 and 13.07. 2014. There are various pronouncements that the statement of the such witnesses can be recorded through Video Conferencing and if the accused is ready to bear the expenses of the Manager of the Hotel to prove that the applicant had stayed in the hotel on 12.07.2014 and 13.07. 2014. There is no reason not to issue summon to him. However, the Court can always issue process/summons through embassy of Nepal to the said witness and as such no Visa or immigration formality is to be adopted in view of Treaty in this behalf between our country and Nepal. 9. Before dealing with the reasoning given by the trial judge for rejecting the applications of the applicant for leading defence evidence, it is to be understood as to what is the scope of Section 233 (3) Cr.P.C. A bare reading of sub-section (3) of Section 233 Cr.P.C. would reveal that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Moreover, the court is required to record its reasoning for refusing the request to summon a defence witness. A bare perusal of the Section 233(3) Cr.P.C. would reveal that except on those grounds the request cannot be turned down on any ground. It is also well settled that the trial court cannot deny an accused the right to summon witnesses, he/she has cited to examine them as defence witnesses which is his sacrosanct fundamental right. 10. The Hon'ble Apex Court in the case of Natasha Singh Versus CBI, (2013) 5 S.C.C.74 has held that "fair trial entails the interests of the accused, the victim and of the society and, therefore, includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is the Constitutional as well as human right." 11. Learned counsel for the applicant has submitted that the applicant has a fundamental and legal right to place on record all evidences in respect of defence to prove his innocence and plea of alibi which he has to establish to the hilt and if he fails to prove this plea of alibi this would be additional circumstance/which can be read along with proven prosecution evidence to be read against the accused to record his conviction. He has further stated that it is well settled that if no acquittal is passed under Section 232 Cr.P.C., the court has to call upon the accused to enter on his defence. Admittedly, in this case, no acquittal has been passed under Section 232 Cr.P.C. Therefore, the provisions of Section 233(3) Cr.P.C. are fully attracted. The accused has a right to be provided an opportunity to adduce any evidence in support of his defence. This right of the accused is a very valuable right which cannot be curtailed in any way. Therefore, a heavy duty is cast upon the Court to see as to whether or not the defence evidence sought to be summoned, is necessary for defending the charge levelled against the accused. If it is so, the trial judge has to summon the defence witnesses and has to adopt a reasonable approach in such a matter and should not reject the prayer for summoning defence evidence except on the grounds provided in sub-section (3) of Section 233 of the Code. 12. The important question of law that arises for determination in the present is as to whether it is incumbent on the part of accused to spell out his defence including the plea of alibi at the stage of investigation, framing of charge while prosecution evidence is being recorded and at the stage of recording of statement under Section 313 Cr.P.C.. 13. In order to answer aforesaid issues, the Court cannot lose sight of Article 20(3) which constitutes right to silence of accused which has various facets: One is that the burden is on the State or rather the prosecution to prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to be guilty. A third is the right of the accused against self incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. Another is that an accused is presumed to be innocent till he is proved to be guilty. A third is the right of the accused against self incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. Right to silence to an accused came to be included in Universal Declaration of Human Rights, 1948, Article 11.1 thereof reads: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. " 14. The Law Commission in its 180th report on Article 20(3) of the Constitution of India considered the scope of right of silence, in view of some developments in United Kingdom, Austrailia, USA and other countries diluting the right to silence of the accused at the stage of interrogation and in criminal trial proceedings. The Commission was of the opinion that the right is protected by Articles 20(3) and 21 of the Constitution and Sections 161(2), 313 (3) and 315 of the Code of Criminal Procedure, 1973. If the changes made in U.K. or those proposed in Australia are introduced in India, such changes will be ultra vires of Articles 20(3) and 21 of the Constitution of India. Therefore, no dilution of the existing right to silence need be made nor can be made. 15. Besides it, there is no standard mechanism for disclosing an alibi in our country as is mandated in Canada, USA, Austrailia which have stringent "alibi notice-laws". The accused for tactical reasons, or may be because of some mistrust of the police in our country may not divulge or disclose the information to the police during investigation and also not disclose in advance in trial. The requirements of an alibi are strict that a false alibi or deliberate lie could be used as some evidence of guilt against the accused. Indeed, in the country where right of silence has been diluted by "alibi notice-laws" the accused is obligated to inform the police in prescribed form about his plea of alibi so that the same is properly interrogated by Investigating Agency. Indeed, in the country where right of silence has been diluted by "alibi notice-laws" the accused is obligated to inform the police in prescribed form about his plea of alibi so that the same is properly interrogated by Investigating Agency. However, in our country more often than not even if the accused discloses the plea of alibi in advance, the same is never properly investigated/verified in an impartial manner for any reason whatsoever, maybe incompetence or lack of investigative skills or for any other extraneous consideration. 16. I may record that an accused person does not have to disclose, his defence including alibi, and the consequence of failure to disclose an alibi in a timely manner at the time of investigation and trial judge may draw an adverse inference that it has been fabricated, provided the accused fails to prove the same by standards as required under Section 103 of Indian Evidence Act and if the evidence of alibi is found to be fabricated, this may be used as circumstantial evidence to draw an inference or "consciousness" of guilt. Nevertheless, the alibi that is merely disbelieved or rejected cannot serve to corroborate or complement the prosecution's case, let alone permit an inference of guilt by the accused. 17. This facet of disclosure of plea of alibi at the earliest may also be looked into from a different angle. Nevertheless, even if the defence has notified the prosecution his intention to present an alibi, the prosecution has to wait until the accused has presented the evidence before it seeks to establish that it was fake and/or fabricated. The reason for this is prosecution cannot rebut a evidence not called unless he is afforded opportunity to lead defence evidence and accused is called upon to lead evidence as provided under Section 233 (3)Cr.P.C. the accused is under no duty to advance any particular defence. 18. In the light of aforesaid discussion made hereinabove, I find that our Constitution itself provided right to silence to the accused and he is also permitted to take inconsistent pleas, rejection of application by the learned judge vide impugned orders on the ground that no such plea of alibi was suggested to any of the prosecution witnesses nor disclosed it in his statement recorded under Section 313 Cr.P.C., is illegal. In my opinion, the accused was not obligated to make any such suggestion as even if he has suggested any plea of alibi the prosecution could not have led any evidence in rebuttal thereof, when the prosecution evidence was being recorded. The prosecution shall have ample opportunity to cross examine the defence witnesses at length in order to discard the evidence of alibi of the applicant when defence witnesses are examined. However, I may record that the plea of alibi was taken by the applicant in his bail application before the Sessions Judge, Ghaziabad on 23.1.2015 and learned Sessions Judge while rejecting the bail application on 23.1.2015 has recorded that ^^vfHk;Dr eqds’k ‘kekZ ds fo}ku vf/koDrk }kjk ;g Hkh rdZ fn;k x;k gS fd og ?kVuk dh frfFk ij dkBekaMq x;k gqvk FkkA Plea of alibi dks bl Lrj ij ugha ns[kk tk ldrk gS D;ksafd og lk{; dk fo”k; gS A 19. As already noted that the applicant is languishing in jail since 5.12.2014 and he was nothing to gain by delaying trial as prosecution evidence has already been recorded and if the valuable right of the applicant of bringing plea of alibi on record by him by examining the witnesses is denied to him it shall derail fair trial and the applicant can never prove his innocence if at all he is convicted by the trial court. I may further record that finding of the trial judge that applicant did not disclose plea of alibi under Section 313 Cr.P.C. is not sustainable inasmuch as he has stated that he would lead defence evidence. 20. Per contra, learned A.G.A. as well as learned counsel for the informant has stated that impugned orders passed by the Sessions Judge are wholly legal and justified and the defence plea of alibi by the applicant has been raised at a belated stage after fabrication of documents and it squarely falls within those three presumptions on the basis of which the trial judge is empowered to reject the application for leading defence evidence. 21. One of the reasons assigned by the trial judge is that the accused did not file any discharge application under Section 227 Cr.P.C. on the basis of plea of alibi. 21. One of the reasons assigned by the trial judge is that the accused did not file any discharge application under Section 227 Cr.P.C. on the basis of plea of alibi. In this behalf, I may refer to the judgment of Apex Court, rendered in the case of State of Orissa Versus Debendra Nath Padhi, 2004(8) Supreme Court Cases 568 which is quoted below: " .....Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police." 22. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police." 22. Learned counsel for the opposite party has placed reliance on the judgment rendered in the case of Ram Naresh and others Versus State of Chhattishgarh (2012) 2 Supreme Court Cases (Cri) 382 in which plea of alibi was rejected as the defences witnesses produced by the accused were related and argued that plea of alibi was rejected by the apex court as the same was not disclosed by the accused during investigation and arrest. 23. I have carefully and consciously gone through the aforesaid judgment wherein the apex court has discarded the testimony of the defence witnesses on the ground that one of them was wife of the accused and she was highly interested and during investigation she did not inform the police that her husband was present in their house and not at the place of occurrence. However, paras 49 and 50 of the said judgment lend support to the reasons recorded by me hereinabove which are quoted below: "49.In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. 50. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused." 24. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused." 24. In the light of aforesaid, impugned order dated 30.1.2019 and 14.06.2019 passed by Additional District and Sessions Judge, Hapur in Session Trial No.253 of 2016 (State Versus Ankush and others) bearing Case Crime No.408 of 2014 under Sections 147, 148, 149, 302, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station Hapur Nagar, District Hapur are quashed. However, the applicant may apply for issuing any process for compelling the attendance or production of any document from the defence witnesses as mentioned in the earlier applications only within two weeks from today. The trial judge shall pass appropriate order in this behalf and shall afford due opportunity to defence, of which the accused shall not take an undue advantage causing further delay in deciding the trial which is pending since 2015 and the applicant is in jail since 5.12.2014. Learned trial judge shall expedite the trial without granting undue adjournments to either side and decide the same within four months from the date of production of a certified copy of this order. 25. The application under Section 482 Cr.P.C. stands allowed, accordingly.