LexJAYANTIBHAI BHENKARBHAI versus STATE OF GUJARAT
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JAY ANTIBHAI BHENKARBHAI v. ST A TE OF GUJARAT SEPTEMBER 11. 2002 [R.C. LAHOTI AND BRIJESH KUMAR, JJ.] Evidence Act, 1872: s. 11, J//ustration (a) ands. 103-Defence of alibi-Burden of proof- Nine persons prosecuted for offences interalia u/s. 3021149, lPC-Defence of alibi raised by one of them namely A-9-His plea not accepted-He along with eight others· convicted and sentenced by trial court-High Court also not accepting his defence of alibi, but acquitting four others giving them benefit A B C of doubt-Appeal before Supreme Court by A-9 only, reiterating his plea of alibi-Held, an obligation is cast on the court to weigh in scales the evidence D adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi-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 places and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence add1'ced on behalf of the prosecution leaves any slot available E lo fit therein the defence of alibi-The burden of the accused 11/s. 103 is undoubtedly heavy-However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fall and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the F court-In the facts and circumstances of the case and keeping in view the nature of the accusations made against the accused-appellant and weighing the same agairist the overwhelming defence evidence adduced by the accused- appellant in support of his plea of alibi, a reasonable doubt is created in the prosecution case so far as the participation of A-9 in the incident is concerned-- The High Court itself has arrived at a finding in favour of A-9 that his G presence at the place stated by him upto 11.00 a.111. on the date of the incident cannot be doubted. That being so, it is rendered highly improbable if A-9 could have reached back at the place of occurrence by the time the incident happened -A-9 is entitled to benefit of doubt and his appeal is allowed-With the acquittal of A-9, though the charge with the aid of s.149 /PC may fail, yet H 255 256 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R. A non-appealing accused could still have been held liable to conviction with the aid of s.34 /PC in which event the sentences would have remained the same. However, inasmuch as the other accused have chosen not to file any appeal of their own, the sustainability of their conviction is not examined-Pena/ Code, 1860-ss. 3021149 .. 14711481452-Criminal lau~Defence of alibi. B CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No.555 of 200 I. From the Judgment and Order dated 24.8.1998 of the Gujarat High Court in Crl. A. No.114/91. C Tanuj Bagga Sharma, Advocate (A.C.) for the Appellant. D Divyang K. Chhaya, Hemantika Wahi and Aruna Gupta, for the Respondent. The following Order of the Court was delivered : In an incident which took place in village Singpur of Taltik Songadh, Gujarat on 6.7.1989 at about 8.30 p.m. one Lallubhai Naranbhai died on account of injuries inflicted on him. Nine accused persons were charged with having committed offences punishable under Sections 302/149 and 147/148/ 452 IPC. Four accused persons, namely, accused Nos. 2.,4,5, and 8 were E directed to be acquitted by the trial Court as the charges ~gainst them were not proved and they were entitled to the benefit of doubt. Accused Nos. I, 3, 6, 7 and 9 were held guilty of having committed the offence punishable under Section 302/149 IPC. These five accused persons were sentenced to undergo imprisonment for life and a fine of Rs. 250 each and in default to F further undergo rigorous imprisonment for one month each. They were further sentenced to undergo rigorous imprisonment for one year each for having committed offences under Sections 147/148 and 452 !PC and also to pay a fine of Rs. 125 and in default of payment to undergo further imprisonment of one month each. The sentences were directed to run concurrently. All the five convicted accused persons preferred appeal before the High Court which G has been dismissed. Accused Nos. 1, 3, 6 and 7,, namely, Singha Magan, Dina Afiniya, Digniya Rama and Rupa Singha have accepted th
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