# Piyush Singh @ Bobby Yadav v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-02
- **Case number:** Application U/S 482 No. 7720 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piyush-singh-bobby-yadav-v-state-of-u-p-ors-52353
- **Pages:** 6

## Headnote

Criminal Law - The Indian Evidence Act -
Section103-
Plea
of
Alibi
-Criminal
Procedure Code, 1973 - Section 482 -
Criminal Proceedings -- Quashing of Proceedings
-plea of alibi is a question of fact- which must be
proved during trial with clear and cogent
evidence-the plea of alibi, if raised, should be
considered only after the prosecution has
successfully proven its case-the burden of proof
rests on the accused to establish an alibi with
certainty- this court in exercise of its jurisdiction
should not meticulously examine the evidence
filed along with charge-sheet by the Investigating
Officer- same is an issue relating to appreciation
of evidence- the power exercised by this Court is
discretionary in nature.

Application dismissed. (E-9)

List of Cases cited:

## Text

9 All. Piyush Singh @ Bobby Yadav Vs. State of U.P. & Ors.
415
---------
(2024) 9 ILRA 415
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.09.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482 No. 7720 of 2024

Piyush Singh @ Bobby Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Shailendra Singh, Ankit Tiwari, Neelam
Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - The Indian Evidence Act -
Section103-
Plea
of
Alibi
-Criminal
Procedure Code, 1973 - Section 482 -
Criminal Proceedings -- Quashing of Proceedings
-plea of alibi is a question of fact- which must be
proved during trial with clear and cogent
evidence-the plea of alibi, if raised, should be
considered only after the prosecution has
successfully proven its case-the burden of proof
rests on the accused to establish an alibi with
certainty- this court in exercise of its jurisdiction
should not meticulously examine the evidence
filed along with charge-sheet by the Investigating
Officer- same is an issue relating to appreciation
of evidence- the power exercised by this Court is
discretionary in nature.

Application dismissed. (E-9)

List of Cases cited:

1. Binay Kumar Singh Vs St. of Bihar [(1997) 1
SCC 283]
2. Rajendra Singh Vs St. of U.P., (2007) 7 SCC 378

3. Dudh Nath Pandey Vs St. of U.P. [(1981) 2
SCC 166 : 1981 SCC (Cri) 379]
4. St. of Mah. Vs Narsingrao Gangaram PiM.P.le
[(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR
1984 SC 63]

5. Gurcharan Singh Vs St. of Pun. [AIR 1956 SC
460 : 1956 Cri LJ 827]

6. Chandrika Prasad Singh Vs St. of Bihar
[(1972) 4 SCC 140 : AIR 1972 SC 109]

7. St. of Har. Vs Sher Singh [(1981) 2 SCC 300 :
1981 SCC (Cri) 421 : AIR 1981 SC 1021]

8. Shaikh Sattar Vs St. of Mah. [(2010) 8 SCC
430]

9. Gurpreet Singh Vs St. of Har. [(2002) 8 SCC
18 : 2003 SCC (Cri) 186]

10. Mohd. Allauddin Khan Vs The St. of Bihar &
ors.(2019) 6 SCC 107)

11. R. P. Kapur Vs St. of Pun. AIR 1960 SC 866

12. St. of Har. & ors.Vs Ch. Bhajan Lal &
ors.1992 Supp. (1) SCC 355

13. St. of Bihar & anr. Vs P. P. Sharma & anr.;
1992 Supp (1) SCC 222

14. Zandu Pharmaceuticals Works Ltd. & Ors. Vs
Mohammad Shariful Haque & anr.; 2005 (1)
SCC 122

15. M. N. Ojha Vs Alok Kumar Srivastava; 2009
(9) SCC 682

16. Rajeev Kourav Vs Baisahab & ors.(2020) 3
SCC 317

17. St. of U.P. Vs Akhil Sharda & ors.2022 SCC
OnLine SC

18. Salib @ Shalu @ Salim Vs St. of U.P. & ors.]

19. Harshendra Kumar D. Vs Rebatilata Koley &
ors., (2011) 3 SCC 351

20. G. N. Mishra & anr.Vs Smt. Divya Awasthi &
anr., MANU/UP/1879/2012

(Delivered by Hon'ble Saurabh Lavania, J.)
416 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard counsel for the applicant and
Sri Nirmal Kumar Pandey, learned A.G.A.
for the State.

2. By means of the present
application, the applicant has assailed the
pending criminal proceedings against him
arising out of Case Crime No. 89/2023,
under Section 323, 364, 143, 147, 341, 342,
427 IPC, Police Station Hasanganj, District
Unnao
and
summoning
order
dated
28.06.2023, passed by Additional Chief
Judicial Magistrate, Court No. 3, Unnao
whereby the applicant has been summoned
under Section 323, 147, 143 IPC. The
relevant portion of the order dated
28.06.2023 reads as under:-

"पत्रावली्‌
प्रस्तुत्‌
हुई।्‌
आर््‌
भदनांक्‌
28.06.2023 को्‌
तलबशुदा्‌
अभियुक्तगण अिय्‌
भसंह्‌
यादव, आदेश्‌
यादव, लभलत्‌
यादव, र्रिये्‌
वी०सी०आि०्‌
न्यायालय्‌ के्‌ समक्ष पेश्‌ भकया्‌ गया।्‌ भववेचक/्‌ उपभनिीक्षक्‌
श्री्‌
अिभवन्द्‌
कुमाि्‌
सिोर््‌
द्वािा्‌
उपिोक्त अभियोग्‌
में्‌
भववेचनोपिान्त्‌ पयाटप्त्‌ साक्ष्य्‌ पाये्‌ र्ाने्‌ के्‌ फलस्वरूप आिोपपत्र्‌ के्‌ सार्थ्‌ अभियोग्‌ दैभनभकयों्‌ तर्था्‌ भववेचक्‌ द्वािा्‌ भववेचना्‌
के्‌ दौिान संकभलत्‌ पत्र्‌ अभियोग्‌ दैभनभकयों्‌ एवं्‌ संलग्नक्‌
दैभनभकयों्‌ एवं्‌ संलग्नक्‌ प्रपत्रों का्‌ सम्यक्‌ परिशीलन्‌ भकया्‌
गया्‌ भर्सके्‌ आधाि्‌ पि्‌ मु०अ०सं०-्‌ 89/2023 अभियुक्तगण
अिय्‌ भसंह्‌ यादव, आदेश्‌ यादव, लभलत्‌ यादव, सतीश्‌ के्‌
भवरूद्ध्‌ धािा-्‌ 323, 364, 143, 147, 341, 341,
427 िा.दं.सं.्‌ तर्था्‌ अभियुक्तगण्‌ हषटवधटन्‌ भसंह्‌ व्‌ भपयूष भसंह्‌
उफट्‌
बाबी्‌ यादव्‌ के्‌ भवरूद्ध्‌ धािा-्‌ 323, 147, 143
िा.दं.सं्‌ में्‌ संज्ञान भलये्‌ र्ाने्‌ के्‌ आधाि्‌ पयाटप्त्‌ हैं।"

3. The applicant has assailed the
impugned order on the sole ground that the
applicant was not present at the situs/ place
of crime, as appears from the submissions
advanced by the counsel for the applicant,
as also from the averments made in Para 12
and 13 of the affidavit filed in support of
the application. The same are extracted
hereunder:-

"12. That being a matter of fact
the petitioner was not there at point of
Offence at Unnao and was there at
Lucknow at his Rented Accommodation
Near Budheshwar Temple P.S. Para Dist.
Lucknow.

13. That the Petitioner has also
stated his version before the investigating
officer by means of the Clarification Letter
and also has handed over a Pen drive
Containing the CCTV Footage of him
Being at the Residence at Lucknow along
with Photographs depicting the same. Copy
of the Letter and Photographs are annexed
as Annexure No. 6 to this petition."

4. From the aforesaid, it is apparent
that the case of the applicant is based on the
plea of 'Alibi'.

5. Sri Nirmal Kumar Pandey, learned
A.G.A. for the State also stated that the
plea of 'Alibi' is a question of fact to be
entertained and decided only after evidence
of the prosecution takes its evidence to
prove the incident, and the participation of
the accused as well.

6. The Latin word 'Alibi' means
'elsewhere'. Plea of 'Alibi' is a rule of
recognized in Section 11 of the Evidence
Act. The plea of Alibi disputes the case of
prosecution. Thus plea of 'Alibi' is question
of fact. 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 to show that he/ she was
elsewhere and was falsely implicated and
the accused is also required to prove the
same by adducing appropriate evidence.

7. Under Section 103 of the Evidence
Act the burden rests on the accused who
9 All. Piyush Singh @ Bobby Yadav Vs. State of U.P. & Ors.
417
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."

8. In Binay Kumar Singh v. State of
Bihar [(1997) 1 SCC 283], the Hon'ble
Apex Court observed as under:

"23. The Latin word alibi means
"elsewhere" and that word is used for
convenience
when
an
accused
takes
recourse to a defence line that when the
occurrence took place he was so far away
from the place of occurrence that it is
extremely improbable that he would have
participated in the crime. It is a basic law
that in a criminal case, in which the
accused is alleged to have inflicted
physical injury to another person;

(i)
the
burden
is
on
the
prosecution to prove that the accused was
present at the scene and has participated in
the crime.

(ii) The burden would not be
lessened by the mere fact that the accused
has adopted the defence of alibi.

(iii) The plea of the accused in
such cases need be considered only when
the burden has been discharged by the
prosecution satisfactorily.

(iv) But once the prosecution
succeeds in discharging the burden it is
incumbent on the accused, who adopts the
plea of alibi, to prove it with absolute
certainty so as to exclude the possibility of
his presence at the place of occurrence.

(v) When the presence of the
accused at the scene of occurrence has
been established satisfactorily by the
prosecution through reliable evidence,
normally the court would be slow to believe
any counter-evidence to the effect that he
was
elsewhere
when
the
occurrence
happened.

(vi) But 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 scene when the
occurrence took place, the accused would,
no doubt, be entitled to the benefit of that
reasonable doubt. For that purpose, it
would be a sound proposition to be laid
down that, in such circumstances, the
burden on the accused is rather heavy. It
follows, therefore, that strict proof is
required for establishing the plea of alibi.
This Court has observed so on earlier
occasions (vide Dudh Nath Pandey v. State
of U.P. [(1981) 2 SCC 166 : 1981 SCC
(Cri) 379]; State of Maharashtra v.
Narsingrao Gangaram Pimple [(1984) 1
SCC 446 : 1984 SCC (Cri) 109 : AIR 1984
SC 63]".

9. In Rajendra Singh v. State of U.P.,
(2007) 7 SCC 378 the Hon'ble Apex Court
has held as under:-

"8. That apart, the plea taken by
the respondent Kapil Dev Singh in his
petition under Section 482 CrPC 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.
418 INDIAN LAW REPORTS ALLAHABAD SERIES
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 CrPC
before the High Court lay squarely upon
him. There is hardly any doubt regarding
this legal proposition. (See Gurcharan
Singh v. State of Punjab [AIR 1956 SC 460
: 1956 Cri LJ 827], Chandrika Prasad
Singh v. State of Bihar [(1972) 4 SCC 140 :
AIR 1972 SC 109] and State of Haryana v.
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 crossexamine 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 CrPC 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 CrPC. 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 CrPC.
The whole procedure adopted by the High
Court is clearly illegal and cannot be
sustained."

10. In Shaikh Sattar v. State of
Maharashtra [(2010) 8 SCC 430], the
Hon'ble Apex court has observed as under:-

"35. Undoubtedly, the burden of
establishing the plea of alibi lay upon the
appellant.
The
appellant
herein
has
miserably failed to bring on record any
facts or circumstances which would make
the plea of his absence even probable, let
alone, being proved beyond reasonable
doubt. The plea of alibi had to be proved
with absolute certainty so as to completely
exclude the possibility of the presence of
the appellant in the rented premises at the
relevant time. When a plea of alibi is raised
by an accused it is for the accused to
establish the said plea by positive evidence
which has not been led in the present case.
We may also notice here at this stage the
proposition of law laid down in Gurpreet
Singh v. State of Haryana [(2002) 8 SCC
18 : 2003 SCC (Cri) 186] as follows : (SCC
p. 27, para 20)

"20. ... This plea of alibi stands
disbelieved by both the courts and since the
plea of alibi is a question of fact and since
both the courts concurrently found that fact
against the appellant, the accused, this
Court in our view, cannot on an appeal by
special leave go behind the abovenoted
concurrent finding of fact."
9 All. Piyush Singh @ Bobby Yadav Vs. State of U.P. & Ors.
419

13. It is the prosecution to prove
its case by adducing evidence. The
petitioner is at liberty to take the plea of
alibi as his defence and to establish the
same
with
positive
evidence.
Before
prosecution adduce evidence to establish
the incident, and to prove participation of
the accused, there is no scope for
entertaining a defence plea of alibi."

11. From the observations made by
the Hon'ble Apex Court in the judgments
referred above, what appears is as under:

(i) The prosecution has to prove
its case including the role of the accused in
that incident.

(ii)
Only
when
prosecution
succeeds in discharging the burden by
establishing its case including participation
of the accused in the crime/incident, the
plea of 'Alibi' put up by the accused needs
to be considered.

(iii) The burden is on the
prosecution to prove that the accused was
present at the scene and has participated in
the crime.

(iv) The burden would not be
lessened by the mere fact that the accused
has adopted the defence of 'Alibi'.

(v) The plea of 'Alibi' of the
accused in such cases need be considered
only when the burden has been discharged
by the prosecution satisfactorily.

(v) It is incumbent on the
accused, who adopts the plea of alibi, to
prove it with absolute certainty so as to
exclude the possibility of his presence at
the place of occurrence.

(vii) When the presence of the
accused at the scene of occurrence has been
established satisfactorily by the prosecution
through reliable evidence, normally the
court would be slow to believe any counterevidence to the effect that he was elsewhere
when the occurrence happened.

(viii) 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 scene when the occurrence
took place, the accused would, no doubt, be
entitled to the benefit of that reasonable
doubt. For that purpose, it would be a
sound proposition to be laid down that, in
such circumstances, the burden on the
accused is rather heavy.

(ix) Strict proof is required for
establishing the plea of 'Alibi'. [vide: Dudh
Nath Pandey v. State of U.P. (1981) 2
SCC 166 : 1981 SCC (Cri) 379; State of
Maharashtra v. Narsingrao Gangaram
Pimple (1984) 1 SCC 446 : 1984 SCC
(Cri) 109 : AIR 1984 SC 63]".

12. Section 482 of CrPC (Now
repealed) and Section 528 of BNSS,
enforced
w.e.f.
01.07.2024,
are
pari
mareria.
This
Court
in
exercise
of
jurisdiction under the said provisions
should not meticulously examine the
evidence filed along with charge-sheet by
the Investigating Officer, as the same is an
issue relating to appreciation of evidence
and the same can be gone into by the
concerned court during trial when the entire
evidence is adduced by the parties. The
power
exercised
by
this
Court
is
discretionary in nature. This Court in
exercise of its inherent powers cannot go
into the disputed question of facts. In
exercise
of
power
under
the
said
provisions, this court is required to consider
the case set up by the prosecution/
complainant for coming to the conclusion
as to whether the criminal proceedings are
required to be quashed at the initial stage.
The accused person during trial is required
to place and prove/ establish its defence in
420 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the law of evidence. The
defence of the accused is required to be
taken note of in the trial by the trial Court.
At this stage, a mini trial is not permissible.
At the stage of framing of charge as also
while exercising power under the said
provision, the material/ evidence collected
during investigation by the Investigating
Officer and in the case of complaint the
documents and evidence produced by the
complainant before the court concerned can
only
be
considered.
[See:
Mohd.
Allauddin Khan Vs. The State of Bihar
And Others (2019) 6 SCC 107); R. P.
Kapur Vs. State of Punjab AIR 1960 SC
866; State of Haryana And Others Vs.
Ch. Bhajan Lal And Others 1992 Supp.
(1) SCC 355; State of Bihar & Anr.
Versus P. P. Sharma & Anr.; 1992 Supp
(1) SCC 222; Zandu Pharmaceuticals
Works Ltd. & Ors. Versus Mohammad
Shariful Haque & Anr.; 2005 (1) SCC
122; M. N. Ojha Vs. Alok Kumar
Srivastava; 2009 (9) SCC 682; Rajeev
Kourav Vs. Baisahab & Others (2020) 3
SCC 317; State of U.P. Vs. Akhil Sharda
& Others 2022 SCC OnLine SC; Salib
alias Shalu alias Salim Vs. State of U.P.
and Others]. The defence which is
irrefutable/
indisputable/
undeniable/
unquestionable/
irrefragable/
beyond
suspicion may be considered in exceptional
circumstances in the peculiar facts of a
given case by this Court while exercising
its power/ jurisdiction under the said
provisions. [See: Harshendra Kumar D.
Vs. Rebatilata Koley and Others, (2011)
3 SCC 351; G. N. Mishra And Another
Vs. Smt. Divya Awasthi And Another,
MANU/UP/1879/2012].

13. Learned counsel for the applicant
has not shown any material to establish that
the evidence, which to the view of this
Court is not beyond suspicion, relied upon
in this application was verified by the
Investigating Officer during investigation.
In this view of the matter, the same cannot
be considered at this stage.

14. Having considered the aforesaid
facts as also the observations made by the
Hon'ble Apex Court in the judgments,
referred above, this Court is of the view
that no interference is required in this case
on the basis of plea of 'Alibi' taken by the
applicant.

15.

Accordingly,
the
present
application is dismissed. No order as to
costs.

16. The Court records the valuable
assistance given by Ms. Urmish Shankar,
Research Associate, attached with me in
drafting this judgment and finding out case
laws applicable in the present case.
---------
(2024) 9 ILRA 420
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Application U/S 482 No. 8349 of 2024

Ajay Kumar & Ors. ...Applicants
 Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Pradeep Kumar Srivastava, Sanjay Misra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Quashing of
Summoning Order -Challenge to summoning