RAJENDRA SINGH versus STATE OF U.P. AND ANR.

Citation: [2007] 8 S.C.R. 834 · Decided: 06-08-2007 · Supreme Court of India · Bench: G.P. MATHUR · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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RAJENDRA SINGH 
v. 
STATE OF U.P, AND ANR. 
AUGUST 6, 2007 
[G.P. MATHURANDP.K. BALASUBRAMANY AN, JJ.] 
Code of Criminal Procedure, 1973-ss. 319, 161and482-Murder by 
two persons-Allegation of-'-Charge-sheet only against one person -Accused 
C (not charged) called by trial court to face trial in view of eVidence of first 
informant-Application thereagainst u/s 482-Plea of alibi by the accused 
placing reliance on the statements u/s 161-High Court quashing the order 
of trial court-On appeal, held: Jn view of the evidence of the first informant, 
the accused, even though not chargesheeted was rightly called to face the 
D trial-The statement u/s 161 being wholly inadmissible in evidence could not 
have been taken into consideration by High Court-A finding on a plea of 
alibi cannot be recorded for the first time in a petition uls 482-Criminal 
Law-Alibi. 
E 
s. 319-Jurisdiction under-Scope of-Discussed 
Evidence Act, 1872-s. 103-Burden of proof-To prove alibi-Held: 
It is on the person who takes such plea-The same can be proved by leading 
evidence at trial and not by filing some affidavits before High Court. 
Judgment-Ratio decidendi-The ratio of a decision is generally 
F secundum subjectam materiam. 
It was alleged by prosecution that respondent-accused alongwith the co-
accused caused death of one person. The motive for killing was that the 
deceased was a prime witness in a triple murder case against the respondent-
accused alongwith others. The accused were threatening him not to give 
G evidence in the triple murder case. When the deceased did not agree, the 
accused killed him. Charge-sheet was submitted only against the co-accused 
and not against the respondent-accused. The First informant in his deposition 
specifically stated about the presence of the respondent-accused and the ro.le 
played by him. The application u/s 319 Cr.P.C. for summoning the respondent-
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RAJENDRASINGHv. STATEOFU.P. 
835 
accused was allowed by Sessions Court. 
Respondent-accused filed a petition u/s 482 Cr.P.C. for quashing the 
order of Sessions Judge. He took the plea of alibi relying on statements of 
six witnesses recorded by Investigating Officer u/s 161 Cr.P.C. High Court 
allowed the petition relying on the statements. Hence the present appeal. 
In the meantime, trial of the co-accused concluded, acquitting him. 
Criminal revision was filed thereagainst by the appellant-first informant. 
Respondent-accused inter-alia contended that order of acquittal of co-
accused has rendered the judgment calling the respondent-accused to face 
trial as infructuous. 
Allowing the appeal, the Court 
HELD: Per G.P. Mathur, J. 
1. Sub-section (1) of Section 319 Cr.P.C. says that where in the course 
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B 
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of aiJy enquiry into, or trial of, an offence, it appears from the evidence that D 
any person not being the accused has committed any offence for which such 
person could be tried together with the accused, the Court may proceed against 
. such. person' for the offence which he appears to have committed. 
fPara 5) 1841-C-D) 
· 2. If the evidence tendered in the course of any enquiry or trial shows E 
that any person not being the accused has committed any offence for which 
he could be tried together with the accused, he can be summoned to face trial 
even though he may not have been charge sheeted by the investigating agency 
or may have been discharged at an earlier stage. fPara 5) (842-F) 
Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983 1 SCC F 
1; Joginder Singhv. State of Punjab, (1979) 1.SCC 345; Kishun Singh v. State 
of Bihar, (1993) 2SCC16, relied on. 
3. The High Court has basically relied upon the statements of six 
witnesses which had been recorded by the investigating officer under Section 
161 Cr.P.C. to record a positive finding that the respondent could not have G 
been present at the scene of commission of the crime as he was present in a 
meeting. A statement under Section 161 Cr.P.C. is not a substantive piece of 
·evidence. In view of the proviso to sub-section (1) of Section 162 Cr.P.C., the 
statement can be used only for the limited purpose of contradicting the maker 
thereof iii the manner laid·down in the said proviso.Therefore, the High Court H 
836 
SUPREME COURT REPORTS 
[2007] 8 S.C.R. 
A committed a manifest error of law in relying upon wholly inadmissible 
evidence in recording a finding that respondent No. 2 could not have been 
present at the scene of commission of th

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