Point of Law: Plea of “alibi - It is settled law that while raising a plea of “alibi” the burden squarely lies upon the accused person to establish the plea by leading cogent and convincing evidence.

JUDGMENT :

V.G. BISHT, J.

1. The present appeals have been preferred against the judgment and order of conviction and sentence dated 30th November, 2012 passed by the learned Additional Sessions Judge at Sewree, Mumbai, in Sessions Case No.318 of 2011, wherein the learned trial Court was pleased to convict the appellants under Section 302 read with 34 of the Indian Penal Code (IPC), Section 324 read with 34 of the IPC and Section 506 (II) read with 34 of the IPC and sentenced them to suffer life imprisonment and to pay fine of Rs.10,000/-each, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 302 read with 34 of IPC, sentenced them to suffer imprisonment for 1 year and to pay fine of Rs.1,000/-each, in default to suffer simple imprisonment for 1 month for the offence punishable under Section 324 read with 34 of IPC and also sentenced to suffer imprisonment for 6 months and to pay fine of Rs.1,000/-each, in default to suffer simple imprisonment for 15 days for the offence punishable under Section 502 (II) read with 34 of IPC. The substantive sentences, however, are directed to run concurrently.

2. The prosecution was initiated on the basis of a complaint filed by Smt.Shamshad Maqsood Khan (informant). Appellant Rashid Ahmed Abdul Bashir Shaikh (A-2) is a neighbour of informant. On 20th November 2010 at about 6.30 a.m. Nasreenbanu, sister-in-law of informant, visited latter’s house and informed that the tin sheets of her house are missing and expressed doubts that A-2 might have taken it. According to the prosecution, the informant and said Nasreenbanu visited the house of A-2 but he was not there. They met A-2’s sister and brother and enquired about the tin sheets. At that time, a heated exchange of words took place and the siblings of A-2 asked informant and her sister-in-law that they should ascertain it from A-2.

3. The prosecution next contends that at about 11.00 p.m. somebody knocked the door of the house of the informant. The informant opened the door and saw A-2 standing there along with a person who was wearing green coloured half-shirt and black jeans. The prosecution alleges that A-2 then asked the informant to send her husband namely Maqbool (since deceased) outside as he wanted to have words with him. The deceased got up to tell A-2 from inside the house that he will have a word with him on the next morning. It is alleged that A-2 caught hold of the hand of deceased and dragged him outside. At the relevant time, the informant’s daughter namely Kausar was also standing near the door. It is further alleged that all of a sudden A-2 took out a chopper which was concealed around his waist and gave a blow of the same on the neck and shoulder of the deceased. The unknown person, who was wearing green half shirt, also gave a blow of chopper on the head of the deceased. When informant’s sister-in-law namely Nasreenbanu came running, she was also assaulted by the person wearing green half shirt by means of chopper on her left hand. The informant and family members then raised commotion as a result of which the neighbours woke up and tried to apprehend A-2 and other unknown persons. However, all of them brandished their weapons at neighbours and threatened that whosoever comes near would be killed and then fled away in an autorickshaw. However, the person wearing green half shirt was apprehended on the spot and the people from the locality gave him a beating. The deceased was then rushed first to Shatabdi hospital and then to Sion hospital. It appears that during the course of treatment the deceased succumbed to the injuries.

4. The informant, later on, lodged the First Information Report (FIR) with Police Station Chembur on the basis of which Crime No.532 of 2010 for offences punishable under Section 302, 307, 324, 506(2) and 34 of Indian Penal Code, Section 4 and 25 of Arms Act as well as Section 37(1)(a) and 135 of the Bombay Police Act came to be registered. The investigation was, f