IMPORTANT POINT
The accused-appellant cannot be held to have participated in the incident of assault as a member of unlawful assembly as he is entitled to benefit of doubt based on his plea of alibi being gone to Ahmedabad far away from place of incident viz. village Singpur of Taluk Songadh, Gujarat.

Headnote:Indian Penal Code, 1860-Sections 302/149 and 147/148/452-Offences under-9 persons tried-4 acquitted, 5 convicted including appellant-Conviction confirmed by High Court-Only appellant appeal to Apex Court-Evidence Act, 1872-Section 11 illustration (a)-Plea of alibi by appellant-Disbelieved by Courts below-Whether appellant is entitled to benefit of doubt on said plea of alibi? (Yes)-Effect of his acquittal whether will affect fate of four accused who have not appealed? (No, because of S. 34 IPC)-Result-Appeal allowed.
       Held : The plea of alibi flows from Section 11 and is demonstrated by illustration (a). Sarkar on Evidence (Fifteenth Edition, p. 258) states the word alibi is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of 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 place and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. 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 fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court. Reverting back to 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 against the overwhelming defence evidence adduced by the accused-appellant in support of his plea of alibi, in our opinion, a reasonable doubt is created in the prosecution case so far as the participation of this accused-appellant in the incident is concerned. We have already noted, the High Court itself, having arrived at a finding in favour of the accused-appellant that his presence at Gandhi Nagar upto 11.00 a.m. on the date of the incident cannot be doubted. That being so, it is rendered highly improbable if the accused-appellant could have reached back village Singpur by the time the incident happened. (Paras 19 and 20)
       Held consequently : For the foregoing reasons, we are of the opinion that the accused-appellant is entitled to benefit of doubt and his appeal therefore deserves to be allowed. (Para 21)
       Held however, though we are holding Jayantibhai Bhenkarbhai, the accused-appellant before us entitled to acquittal, we are conscious of the fact that the High Court has held five accused persons guilty and convicted them with the aid of Section 149 IPC. With the acquittal of Jayantibhai Bhenkarbhai (A-9), the accused-appellant before us, the number of culprits who participated in the incident is reduced to less than five and the charge with the aid of Section 149 IPC falls to the ground. We could have, in exercise of our jurisdiction under Article 136 of the Constitution, entered into the legality and propriety of the conviction of the non-appealing accused persons also. However, in the facts and circumstances of the present case, we are not inclined to do so. Though the charge with the aid of Section 149 IPC may fail, yet non-appealing accused-persons could still have been held liable to conviction with the aid of Section 34 IPC in which event the sentences would have remained the same. Be that as it may, inasmuch as the other accused-appellants have chosen not to file any appeal of their own, we are not inclined to enter into examining the sustainability of the conviction of the non-appealing accused persons. (Para 22)
       Held finally : The appeal filed by Jayantibhai Bhenkarbhai, the appellant before us, is allowed. His conviction under Section 302/149 IPC and Sections 147/148/452 IPC is set aside. He is directed to be acquitted. He shall be released forthwith if not required to be detained in any other offence. (Para 23)

ORDER

In an incident which took place in village Singpur of Taluk 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 directed to be acquitted by the Trial Court as the charges against them were not proved and they were entitled to the benefit of doubt. Accused Nos. 1, 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 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 IPC 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 has been dismissed. Accused Nos. 1, 3, 6 and 7, namely, Singha Magan, Dina Afiniya, Digniya Rama and Rupa Singha have accepted the judgment of the High Court and have not pursued challenge to their conviction upto this Court. It is only the accused No. 9 Jayantibhai Bhenkarbhai who has filed this appeal by special leave.

2. The prosecution case briefly stated is that the accused No.1 Singha Magan came to visit the house of one Lalji Rajia at about 6.00 p.m. on 6.7.1989. Lalji Rajia was not at his house. Singha Magan demanded liquor from Ashwin, a minor son of Lalji Rajia, which was objected to by Ushniben, the wife of Lalji Rajia. There was some verbal altercation. Singha Magan (A-1) was speaking in foul language and was argumentative insisting on fulfilling his demand for liquor. At this point of time, Lalubhai and his brother Kantibhai, who were next door neighbourers of Lalji Rajia came out and intervened and chastised the accused Singha Magan by telling him that in the absence of Lalji Rajia, the accused should not have harassed the lady who was alone in the house. The accused was asked by Lalubhai to leave that locality and go away. This annoyed the accused and he left threatening that he would see him later.

3. At about 8.00 p.m. on the same day, accused No.1 Singha Magan returned to the house of the deceased accompanied by accused Nos. 2 to 9. The accused persons were severally armed. Accused No.1 Singha Magan was armed with a knife, accused No. 7 Rupa Singha had a pestle with him. Accused No. 6 Digniya Rama and accused No. 9 Jayantibhai, Bhenkarbhai were armed with sticks. The incident was witnessed by Kantibhai and Thakorebhai, brothers of the deceased. The accused persons fled away after assaulting the victim. Thakhorebhai went to Channabhai Dhirubhai and narrated to him the incident. He advised for a report being lodged with the police. Thakorebhai accompanied by Channabhai Dhirubhai went to Ukai police station situated at a distance of about 10-12 Kms. and lodged F.I.R. of the incident at 6.00 a.m. on 7.7.1989. A cognizable offence was registered and investigation commenced.

4. Shortly after the incident of assault Lalubhai succumbed to his injuries. Post-mortem on the dead body was performed by Dr. Surendra, Medical Officer, General Hospital, Songadh. The deceased was found to have sustained 22 injuries out of which 3 were incised wounds and remaining were contused lacerated wounds or abrasions. On internal examination, the deceased was found to have sustained fracture of right 5th and 6th ribs at the level of right midclavicular line and fracture of left 7th, 8th and 9th ribs at the level of left midscapular line. The injuries were ante-mortem. The incised wounds could have been caused by sharp cutting weapon such as knife while other injuries co

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