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2024 DIGILAW 389 (ALL)

Kuldeep v. State of U. P.

2024-02-06

VIKRAM D.CHAUHAN

body2024
JUDGMENT : VIKRAM D. CHAUHAN, J. 1. Heard learned counsel for the applicant and learned AGA for the State-respondent. 2. This application under Section 482 Cr.P.C. has been filed by applicant for quashing the charge sheet as well as entire proceedings of Case No. 195A of 2017, arising out of Case Crime No. 197 of 2017, under Sections 147, 148, 149, 307, 302, 506, 120B I.P.C. Police Station Bhopa, District Muzaffar Nagar. 3. It is submitted by learned counsel for the applicant that initially the first information report was lodged on 6.4.2017 in respect of an incident dated 6.4.2017. The first information report was lodged against seven nominated accused persons including the applicant. As per the allegations in the first information report, it is alleged that the co-accused Manoj, Rajdeep, Virendra and Amit are said to have assaulted the deceased, as a result of the same, the deceased sustained injuries. The only allegation against the applicant is that the applicant has informed about the relevant place where the applicant is present to the other accused persons. 4. The submission of learned counsel for the applicant is that the applicant was working on the post of Sepoy in the Indian Army and at the relevant point of time on 6.4.2017 he was under training at Panchmarhi Centre of Army. In this respect, a certificate dated 10.6.2017 was issued by the Major Adjutant. The aforesaid certificate is annexed as Annexure 4 to the affidavit accompanying this application. 5. Learned counsel for the applicant has drawn attention of this Court to the Individual Course Report, which is annexed as Annexure 3 to the affidavit which has been issued on 17.5.2017 in respect of the period from 2.1.2017 to 22.4.2017. 6. Learned counsel for the applicant submits that the once the applicant was under training at Panchmarhi Centre on the date of incident and a certificate has been issued, then the applicant cannot be proceeded and the criminal proceedings are an abuse of process of law. 7. Learned counsel for the applicant has relied upon the judgment of Apex Court in the case of Harshendra Kumar D. vs. Rebatilata Koley and Others, 2011 (3) SCC 351 to submit that the documents which are beyond suspicion or doubt can be relied upon for quashing the criminal proceedings and the accused cannot be relegated to go through the trial proceedings and to prove his defence. 8. 8. Learned counsel for the applicant has also relied upon a judgment of this Court in the case of G.N. Mishra and Another vs. Smt. Divya Awasthi and Another, 2012 (9) ADJ 455 (LB) which is a case with regard to a person being out of country in Australia and on the basis of endorsement in the passport, the criminal proceedings have been quashed. 9. It is further submitted by learned counsel for the applicant that once from the documents issued by the Indian Army it is evident that the applicant was not at the place of occurrence when the incident taken place then criminal proceeding cannot be proceeded. 10. Learned A.G.A. has opposed the present application and submits that the plea raised by the learned counsel for the applicant which in fact a plea of ali-bi and the same cannot be considered at this stage. 11. It is to be seen that in the present case, the first information report has been lodged on 6.4.2017 against seven nominated accused persons including the applicant. The only allegation against the applicant in the first information report is that the applicant was instrumental in identifying the residence of the injured and informing the same to the co-accused persons, who thereafter, assaulted the deceased. Learned counsel for the applicant has raised the issue with regard to the fact that on the date of occurrence the applicant was at the training centre. In this respect, the certificate issued on 10.6.2017 of the Army has been relied upon where it has been certified that the applicant was under training from 2.1.2017 to 22.4.2017. In effect of plea of ali-bi has been raised by the accused person. 12. Such a plea of ali-bi is a defence raised by the applicant on the basis of the documents issued by the Army is required to be considered by the trial court and the certificate issued by the Army. The same is required to be proved by the applicant before the trial court prior to considering the aforesaid certificate 13. It is settled law that when an accused raises plea of alibi, the burden is on accused to prove the same. A plea of Alibi is a question of fact which is required to be proved by the accused at the stage of trial. It is settled law that when an accused raises plea of alibi, the burden is on accused to prove the same. A plea of Alibi is a question of fact which is required to be proved by the accused at the stage of trial. Under Section 103 of the Evidence Act the burden rests on the accused who raises the plea of alibi. Section 103 of the Evidence Act provides: “103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations: (b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.” 12. In Rajendra Singh vs. State of U.P. (2007) 7 SCC 378 the Supreme Court has held as under: “8. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to Section 103 reads as under: “B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it.” This provision makes it obvious that the burden of establishing the plea of alibi set up by Respondent 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. [See Gurcharan Singh vs. State of Punjab, AIR 1956 SC 460 : 1956 Cri. L.J. 827, Chandrika Prasad Singh vs. State of Bihar, (1972) 4 SCC 140 : AIR 1972 SC 109 and State of Haryana vs. Sher Singh, (1981) 2 SCC 300 : 1981 SCC (Cri) 421 : AIR 1981 SC 1021 ]. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge. 13. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained.” 14. In exercise of power under section 482 of the criminal procedure code the court is enjoined with the duty to consider the prosecution case to come to the conclusion whether the criminal proceedings are required to be quashed in exercise of the summary jurisdiction at the preliminary stage. It is to be noted that ordinarily in the prosecution journey, the prosecution lead evidence in support of the prosecution case before the trial court and thereafter the defence as raised by the accused person and the same is required to be proved by the accused person by leading evidence. The defence by an accused may not be subject to an investigation or enquiry by the investigating officer. The defence by an accused may not be subject to an investigation or enquiry by the investigating officer. The prosecution case rests upon the material which has been collected during investigation or in the case of complaint by way of documents and evidence produced by the complainant before the court concerned. The accused person during trial is required to prove its defence in accordance with the law of evidence. 15. The proceedings under section 482 of the criminal procedure code are summary proceedings and this Court in exercise of jurisdiction under section 482 do not exercise the power of appreciating the case of the parties after leading of evidence. The power exercised by this Court is discretionary in nature. The defence of the accused although may appear to be a possible should not be taken into consideration for exercise of the jurisdiction under section 482 Cr.P.C. by this Court. This Court in exercise of its inherent powers cannot go into the disputed question of facts. Under normal circumstances the defence of the accused is required to go through the trial proceedings and thereafter a finding is required to be recorded by the trial court with regard to the veracity of the defence raised by the accused person. 16. At this stage, a summary trial cannot be permitted. It is only once the Officer issuing the certificate has proved the documents as having been issued by the officer concerned and the plea of ali-bi is proved during trial by the accused, then only such an evidence can be considered. In so far as the law with regard to relying upon the documents which are admitted to the parties are concerned, it is to be seen that the documents which have been relied upon have been filed during investigation and after investigation a charge sheet has been submitted by the Investigating Officer. The Investigating Officer has not found the aforesaid plea of ali-bi as tenable and as such the charge sheet has been filed. Learned counsel for the applicant has not shown any material to demonstrate that aforesaid documents were verified by the Investigating Officer at the stage of investigation. Such being the position, the documents cannot be considered at this stage, as such the present application lacks merit and is liable to be dismissed. 17. Accordingly, the present application is, dismissed. 18. Learned counsel for the applicant has not shown any material to demonstrate that aforesaid documents were verified by the Investigating Officer at the stage of investigation. Such being the position, the documents cannot be considered at this stage, as such the present application lacks merit and is liable to be dismissed. 17. Accordingly, the present application is, dismissed. 18. It goes without saying that the applicant would be at liberty to approach the court concerned by moving an appropriate application for substantiating the plea of ali-bi. Further, the observations made by this Court in the present application shall not in any manner affect the case of the applicant before the trial court.