BINAY KUMAR SINGHversusTHE STATE OF BIHAR

                         BINA Y KUMAR SINGH                                         A
                                       V.
                         THE STATE OF BIHAR

                           OCTOBER 31, 1996.

              [DR. A.S. ANAND AND K.T. THOMAS, JJ.]                                 B

      Criminal law :

      Code of Criminal Procedure, 1973.· Section 154.

      FIR-Requirements of-Held: Nebulous or cryptic information fi'om               C
somebody who did not disclose any authentic knowledge about commission
of cognisable offence would not be sufficient to register FIR.

      Evidence Act: 1872: Sections 145 and I 55(3).
                                                                                    D
      Impeachment ofcredibility ofwitness· -Procedure of-Held: if witness
diso1vned any staten1ent lvhich ivas inconsistent with any part of his
statement in court he could be contradicted by calling his attention to
those parts of statement which were to be used for contracdicting him-·.ft
was not enough ifquestions in cross-examination were asked with reference
to such statement.                                                                  E
      Section 9-Identification of accused-Attack by a large number of
persons on inhabitants of place of occurrence which resulted in death of
human beings and injuries to others-None of injured witness identified
accused (except two or three assailants) but non-injured witness identified
a bulk of them-Held: this could not have any adverse impact on the                  F
credibility of the non-injured witness.

      Section I 34-Number ofwitnesses identification ofaccused as member
of unlawful assembly-Sufficient number of witnesses not examined-Held:
number ofwitnesses examined not material-Testimony ofone single witness,            G
if wholly reliable, was sufficient-However, when size of unlawful assembly
was quite large, it would be prudent to insist on at least two reliable witnesses
to vouchsafe identification of accused.

     Section I I-Alibi-Nature and meaning of-Plea ofalibi disbelieved
by courts be/ow-Quite sturdy reasons for same-Held: Burden of proof H
                                225
    226                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A heavy for establishing alibi-Strict proof required for establishing alibi-
    Presumption about genuineness of official records for establishing alibi
    not enough-Presumption only a rule in realm of burden ofproof-Hence,
    interference by Supreme Court not called for.

          Criminal Trial :
B
          Witness-Injured witness-Power of observation-Held: vision of
    injured witness might get blurred-Thereby attention would get instinctively
    diverted to his injuries-Hence, his power ofobservation would be affected

          Penal Code I860: Sections I47 and 149.
c
         Identification' of accused- Proof of-Held: where size of unlawful
    assembly was large it would be prudent to insist on at least two reliable
    witnesses to vouchsafe identification of accused

          Constitution of India, I950: Article 136.
D
          Concurrent findings offact-Interference with-Minor discrepancies
    in testimony of witnesses-Held: concurrent findings of lower courts
    regarding reliability ofevidence of those witnesses could not be disturbed

E         Words and Phrases :

          "Alibi "-Meaning of-In the context of Section 1I of the Evidence
    Act. 1872.

          The appellants were convicted under Section 302 read with
F   Section 149 of the Indian Penal Code, 1860 and sentenced to undergo
    rigorous imprisonment for life,

          According to the prosecution on the night of the occurrence the
    appellants accused and a lot of their henchmen formed themselves
G   into an unlawful assembly arming themselves with deadly weapons,
    guns, rifles and cutting instruments, When the inhabitants of the
    place nf occurrence were sleeping the appellants !'et their houes ablaze.
    The occupants who emerged out of their burning houses were shot at
    by the appellants. Many human beings were killed and some others
    bailly mauled. When the appellants were satisfied that they had
H   accomplished their object, they all retreated from the scene, The Sub-
                BINA Y KR. SINGH v. STATE OF BIHAR               227


Inspector of the Police Station got information from P.W. 36 about A
some serious occurrence of arson involving large number of people.
The Police officer elicited a detailed statement from PW-32 which
was forwarded to the Police Station where an FIR was prepared . On
completion of investigation charge sheet was filed against the
appellants.
                                                                        B
     On the basis of the evidence adduced on behalfofthe prosecution,
the Sessions Judge came to the conclusion that the charges levelled
against the appellants accused were fully established. This finding
was upheld by the High Court.

       In the appeal before this Court, on behalf of the appellants- C
accused it was contended that the FIR under Section 154 of the Code
of Criminal Procedure 1973 should have been the statement of PW-
36 which was the earliest statement and not the statement made by
PW-32 that PW-32 had told an official during an enquiry that his
first statement was not recorded at the village but at the police station
which was in contradiction with his previous statement that none of D
the injured had identified the appellants but only those witnesses
who did not sustain any injury had identified the appellants that the
appellants were entitled to the plea of alibi; that the courts should
have presumed the genuineness of all official records and accepted
the proof as more than sufficient to discharge the appellants burden E
regarding alibi that sufficient number of witnesses were not examined
to establish the identity of the appellants and that there were
discrepancies in the testimony of eye-witnesses.

     Dismissing the appeal, this Court
                                                                        F
      HELD: I. Under Section 154 of the Code of Criminal Pracedure,
1973 the information must unmistakably relate to the commission of
a cognizable offence and it shall be reduced to writing (if given orally)
and shall be signed by its maker. The next requirement is that the
substance thereof shall be entered in a book kept in the police station G
in such form as the State Government has prescribed. First
Information Report (FIR) has to be prepared and it shall be forwarded
to the magistrate who is empowered to take cognizance of such offence
upon such report. The officer incharge of a police station is not obliged
to prepare FIR on any nebulous or cryptic information received from
somebody who does not disclose any authentic knowledge about H
    228                    SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A commission of the cognizable offence. It is open to the officer incharge
    to collect more information containing details about the occurrence,
    if available, so that he can consider whether a cognizable offence has
    been committed warranting investigation thereto. [233-H, 234-A-B[

           Tapinder Singh v. State of Punjab, [1971[ 1 SCR 599; Soma Bhai
B   v. State of Gujarat, AIR (1975) SC 1453 and State of UP. v. P.A. Madhu,
    AIR (1984) SC 1523, relied on.

       2. The credit of witness can be impeached by proof of any
  statement which is inconsistent with any part of his evidence in court.
  This principle is delineated in Section 155(3) of the Evidence Act,
C 1872 and it must be borne in mind when reading Section 145 which
  consists of two limbs. It is proved in the first limb of Section 145 that
  a witness may be cross-examined as to the previous statement made
  by him without such writing being shown to him. But the second
  limb provides that "if it is intended to contradkt him by the writing
  his attention must, before the writing can be proved, be called to
D those parts of it which are to be used for the purpose of contradicting
  him." There is thus a distinction between the two vivid limbs, though
  subtle it may be. The first limb does not envisage impeaching the
  credit of a witness, but it merely enables the opposite party to cross-
  examine the witness with reference to the previous statements made
E by him. He may at that stage succeed in eliciting materials to his
  benefit through such cross-examination even without resorting to the
  procedure laid down in the second limb. But if the witness disowns
  having made any statement which is inconsistent with his present
  stand his testimony in Court on that score would not be vitiated until
  the cross-examiner proceeds to comply with the procedure prescribed
F in the second limb of Section 145. It is not enough if witness was
  asked questions in cross-examination with reference to his previous
  statement. [234-G,H, 235-A-D, 234-G]

         Bhagwan Singh v. State of Punjab, AIR (1952) SC 214, held
G   inapplicable.

         3.1. None of the injured had identified the assailants (except two
    or three appellants) but only those witnesses who did not sustain any
    injury have claimed to have identified a bulk of them. Even if so, it
    cannot have any adverse impact on the credibility of the witness relied
H   on by the two courts as it could happen many a time that persons
                BINA Y KR. SINGH v. STA TE OF BI HAR                229

sustaining injuries in a mass attack might not be in the same position A
to observe men and events as the non-injured persons. It is quite
probable that the vision of the injured might get blurred, as their focus
of attention would instinctively get diverted to the injuries sustained
by them. They could then be in a less advantageous position to watch
or observe the events than the non-injured witnesses. (236-A-BJ
                                                                            B
     3.2. That apart, there is no justification in drawing a hitaus
between injured witness into his case as for the capacity to identify
the assailants while in action. (236-CJ

      4.1. An 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       C
recognised in Section II of the Evidence Act, 1872 that facts which
are inconsistent with the fact in issue are relevant. (237-H, 238-AJ

      4.2. 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 D
occurrence that it was 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, the burden is on the prosecution to prove that the accused
was present at the scene and has participated in the crime. The burden
would not be lessened by the mere fact that the accused has adopted E
the defence of alibi. The plea of the accused in such cases need be
considered only when the burden has been discharged by the
prosecution satisfactorily. 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 F
the possibility of his presence at the place of occurrence. When the
presence established satisfactorily by the proseclltion through reliable
evidence, normally the court would he slow to believe any counter
evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a
quality and of suc!t a standard that the court may entertain some G
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. (238-B-FJ           ·H
    230                    SUPREME COURT REPORTS [1996] SUPP. 8 S.CR.


A       Dudh Nath Pandey v. State of UP., (1981) :Z SCC 166 and State of
    Maharashtra v. Narsingrao Gangaram Pimple, AIR (1984) SC 63, relied
    on.

       4.3. Regarding the contention that courts below should have
  presumed the genuineness of all official records and accepted the proof
B as more than reasonably sufficient to discharge the appellants burden,
  one should not forget that presumption is only a rule in the realm of
  burden of proof and the reasons concurrently weighed with the two
  courts below for disbelieving the plea of alibi put forth by the
  appellants are quite sturdy. [239-F)

C        5. There is no rule of evidence that no conviction can be based
   unless a certain minimum number of witnesses have identified a
   particular accused as member of the unlawful assembly. It is axiomatic
   that evidence is not to be counted but only weighed and it is not the
   quantity of evidence but the quality that matters. Even the testimony
   of single witness, if wholly reliable, is sufficient to establish the
D identification of an accused as member of an unlawful assembly. All
   the same, when the size of the unlawful assembly is quite large (as in
   this case) and many persons would have witnessed the incident, it
 . would be a prudent exercise to insist on at least two reliable·witnesses
   to vouchsafe the identification of an accused as participant in the
E rioting. [241-G-H, 242-A)

          Masalti v. The State ofUttar Pradesh, AIR (1965) SC 202, followed,

         6. The discrepancies in the testimony of the eye witnesses are
    not material or serious and, therefore, the concurrent finding of lower
F   courts regarding reliability of the evidence of those witnesses on such
    discrepancies cannot be disturbed. [241-EI

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    277 of 1987 Etc. Etc.

G         From the Judgment and Order dated 3.7.86 of the Patna High Court
    in Crl. A. No. 480 of 1984.

        Sushil Kumar, U.R. Lalit, Krishna Ballabh Sinha, Uday Sinha, Kailash
   Vasdev, Pawan Kumar, Ranjit Kumar, Ms. Anu Mohla, Yatish Mohan,
 H Ranjit Kumar, L.R. Singh, Anil Kumar Jha, R.P. Singh, Ugra Shankar
          BINAYKR. SINGHv. STATEOFBIHAR[THOMAS,J.]                       231


Prasad, D. Goburdhan and Ms. Pinky Anand for the appearing parties.              A

     The Judgment of the Court was delivered by

      THOMAS, J. A veritable holocaust took place in a Bihar village
(Paras Bigha, in Gaya District) on a moonlit night in early February,
1980. In that massacre lives of 13 human beings were snuffed out and 17          B
others were badly mauled, a large number of mute cattle were burnt alive
and many dwelling houses were gutted. The venue of that macabre was
the area where houses ofHarijans and people belonging to Backward Classes
were clustered together in Paras Bigha village. After investigation the police
charge-sheeted 56 persons for various offences committed in connection
with the aforesaid incident, but due to different reasons only 44 of them        C
were put on trial. Sess;ons Court convicted 37 among them of various
offences ranging from Section 302 !PC (read with Section 149) to minor
offences such as Section 429 JPC and sentenced them to rigorous
imprisonment for IO years for the principal offence and to lesser terms of
imprisonment for the lesser offences. The Patna High Court confirmed
the conviction and while dealing with the sentences rectified an illegality      D
 in awarding a sentence of imprisonment only for I 0 years for the offence
under Sections 302/149 IPC by enhancing it to imprisonment for life. The
maximum tine imposed by the Sessions Court was reduced from Rs. 5,000
to Rs. 3,000 and made it applicable o all the convicted accused. We are
now dealing with the appeals filed l _· the convicted persons in this Court      E
by special leave.

      During the pendency of these appeals the appellant in Criminal Appeal
No. 91 of 1994 (Surendra Prasad Singh) died and hence his appeal has
abated. We may point out that appellant Moiddin Mian (ranked as 7th
accused in the trail court) has not filed any appear before the High Court       F
and hence the conviction and sentence passed on him remained unchallenged.
He is one of the many appellants arrayed in Criminal Appeal Nos. 280-·
283of1987 in this Court. But he could not have come to this court without
approaching the High Court in appeal first. We, therefore, record that his
appeal before us is not maintainable and hence the conviction and sentenced      G
passed on him by the Sessions Court would remain undisturbed. We,
therefore, dismiss his appeal filed in this Court.

      Due to the crowding of many accused persons in this case, we deem
it convenient to refer to the individual appellant as far as practicable by
the rank in which they were arrayed in the trial court. We do not think it       H
    232                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A necessary to mention the facts elaborately, yet a brief narration of the
    story would be advantageous to deal with the questions raised before us.

          One Ram Niranjan Sharma (father of A-3 Madan Mohan Sharma)
    was killed on 20. l 0.1979 for which the police charg~-sheeted certain persons
    including Sukhdev Bhagat (PW-32) and some other prosecution witnesses
B   who were all inhabitants of the venue of this crime. From then onwards
    tension was mounting up in this locality. Police patrol as well as bandobust
    were provided and some measures, such as initiation of security proceedings
    under Section 107 of the Code of Criminal Procedure (for short 'the Code')
    for easing down the tension and to preserve law and order situation, were
    adopted but the police perambulation was subsequently lifted. On the
C   occurrence night these appellants and a lot of their henchmen formed
    themselves into an unlawful assembly arming themselves with deadly
    weapons, guns, rifles and cutting instruments. When the inhabitants of the
    place of occurrence were sleeping the rioters made a blitz on them around
    11 in the night. Many houses occupied by the victims in this case were set
    on fire and haystacks (heap of straws) were set ablaze. The occupants who
D   emerged out of the burning houses were shot at by the appellants though
    some of them could escape either by fleeing off or by hiding from the
    spewing barrels of the firearms which prowled for them. When the
    assailants were satisfied that they had accomplished their object, they all
    retreated from the scene.
E
          The sub-Inspector of Jehanabad Police Station got information from
    Rabindra Bhagat (PW-36) about some serious occurrence involving arson
    and a large number of people. He then rushed to the scene. He spotted
    PW-32 (Sukhdev Bhagat) and elicited a detailed statement from him (Ext.
    14). He forwarded it to the Police Station where an FIR was prepared on
F   its basis. Investigation was commenced, and inquests were held, autopsy
    on th.e dead bodies was arranged and hospitalisation of the injured was
    ensured. On completion of the investigation charge sheet was laid as
    aforesaid.

G          We do not propose to refer to the evidence regarding the injuries
    sustained by the victims nor to the records showing the extensive damage
    inflicted on the cattle as well as to the dwelling houses. The trial court and
    the High Court have dealt with those aspects in extenso and reached findings
    substantially in favour of the prosecution. ln fairness to all the learned
    senior counsel (who argued for the appellants) we must observe that none
H   ofthem disputed before us that on the dreadful night the devastating carnage
          BINAYKR. SINGHv STATEOFBIHAR[THOMAS,J.]                      233


took place at this place in which those 13 persons died and a number of        A
other persons were injured at the hands of armed a•sailants. The nub of
the points stressed by the learned counsel is that these appellants were not
the miscreants involved in the incident. In other words, basically the only
point now to be considered is whether appellants were also among the
assailants in the said occurrence?
                                                                               B
      A number of witnesses examined by the prosecution have identified
these assailants in the trial Court. Learned Sessions Judge and the High
Court did place reliance on the evidence of a large number of such witnesses
on that aspect. However, the trial court did not act on the evidence of Raja
Dev Bhagat (PW-!), Peru Bhagat (PW-2), Feken Yadav (PW-5), Bhagwan
Das (PW-7), Alakh Deo Bhagat (PW-17) and Chandrika Paswan (PW-                 C
19).

      Learned counsel pointed out that neither the trial court nor the High
Court has treated Ext. 14 (statement of PW-32 Sukh Dev Bhagat) as
forming the FIR in this case, instead the statement made by PW-36 Ravindra     D
Bhagat which was marked as Ext. I 0/3 was treated as the FIR. True it is,
that before the Sub-Inspector of Jehanabad Police Station (PW-42 Kalika
Prasad) could record the statement of Sukhdev Bhagat (PW-32) some
information had already reached the Police Station when Rabindra· Bhagat
(PW-36) went there by early morning. It has been marked as Ext. !0/3.
That information was entered in the station diary in the following words:      E
              "At this time Rabindra Bhagat son ofSoharai Bhagat resident
              of Paras Bigha, P.S. Jahanabad came to Police Station
              accompanied by Bhangi Yadav resident of village Titai Bigha
              and gave the information that the sons (probably he meant
              sons and grand sons) of late Ram Niranjan Sharma had             F
              collected, with large number of persons in his village and
              they have set fire to the houses and piles of straws and has
              also resorted to firing. He had fled away seeing the fire and
              he was not aware of the full facts as to what had happened."
                                                                               G
      But we do not find any error on the part of the police in not treating
Ext. 10/3 as the first information statement for the purpose of preparing
the FIR in this case. It is evidently a cryptic information and is hardly
sufficient for discerning the commission of any cognizable offence
therefrom. Under Section 154 of the Code the information must
unmistakably relate to the commission of a cognizable offence and it shall     H
    234                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A be reduced to writing (if given orally) and shall be signed by its maker.
    The next requirement is that substance thereof shall be entered in a book
    kept in the police station in such form as the State Government has
    prescribed. First Information Report (FIR) has to b~ prepared and it shall
    be forwarded to the magistrate who is empowered to take cognizance of
    such offence upon such report. The officer incharge of a police station is
B   not obliged to prepare FIR on any nebulous information received from
    somebody who does not disclose any authentic knowledge about
    commission of the cognizable offence. It is open to the officer incharge to
    collect more information containing details about the occurrence, if
    available, so that he can consider whether a cognizable offence has been
    committed warranting investigation thereto. Tapinder Singh v. State of
C   Punjab, [1971] 1 SCR 599, Soma Bhai v. State of Gujarat, AIR (1975)
    SC 1453, State of UP. v. P.A. Madhu, AIR(l984) SC 1523.

           Learned counsel who argued for the appellant, however, contended
    that first information statement in this case is neither Ext. 14 nor Ext. 10/
    3 but it should have been the statement which PW-32 (Sukhdev Bhagat)
D   had given before Jehanabad Police Station much prior to the other two
    statements. Learned counsel submitted that the police had, for reasons
    best known to them, hushed up that statement. Basis for the above
    submission is the evidence _given by DW-19 (Nawal Kishore Prasad) a
    member of the Board of Revenue of the State of Bihar who conducted an
    official enquiry into the administrative lapses involved in this incident. Of
E   course, DW-19 claimed that one Sukhdev Bhagat had told him during
    such enquiry that his first statement was not recorded at the village but at
    the police station.

          In this context, we may point out that Sukhdev Bhagat (PW-32) has
F stated in his evidence in the trial court that many officials would have
  recorded his statements though he could not remember precisely whether
  an officer by name, Nawal Kishore Prasad would have examined him.
  PW-32 has further said in his evidence that Ext. 14 statement was recorded
  at the place of occurrence and that he had not given any other statement to
  the police. If he was to be contradicted with any other statement, the
G defence should have adopted the procedure prescribed in Section 145 of
  the Evidence Act. Learned counsel contended that it is enough if he was
  asked questions in cross-examination with reference to such statement. In
  support of it he relied on the decision of this Court in Bhagwan Singh v.
  State of Punjab, AIR(l952) SC 214.

H         The credit of a witness can be impeached by proof of any statement
          BINAYKR. SINGH v. STATEOFBIHAR[THOMAS, J.]                     235


which is inconsistent with any part of his evidence in court. This principle A
is delineated in Section 155(3) of the Evidence Act and it must be borne
in mind when reading Section 145 which consists of two limbs. It is
provided in the first limb of section 145 that a witness may be cross-
examined as to the previous statement made by him without such writing
being shown to him. But the second limb provides that "If it is intended to
contradict him by the writing his attention must, before the writing can be B
proved, be called to those parts of it which are to be used for the purpose
of contradicting him." There is thus a distinction between the two vivid
limbs, though subtle it may be. The first limb does not envisage impeaching
the credit of a witness, but it merely enables the opposite party to cross-
examine the witness with reference to the previous statements made by
him. He may at that stage succeed in eliciting materials to his benefit C
through such cross-examination even without resorting to the procedure
laid down in the second limb. But ifthe witness disowns having made any
statement which is inconsistent with his present stand his testimony in
Court on that score would not be vitiated until the cross-examiner proceeds
to comply with the procedure prescribed in the second limb of Section
 145.                                                                        ])

       In Bhagwan Singh's case, Vivian Bose, J. pointed out in paragraph
25 that during cross-examination of the witnesses concerned the formalities
prescribed by Section 145 are complied with. The cross-examination in
that case indicated that every circumstance intended to be used as               E
contradiction was put to him point by point and passage by passage. Learned
Judges were called upon to deal with an argument that witnesses" attention
should have been specifically drawn to that passage in addition thereto.
Their lordships were, however, satisfied in that case that the procedure
adopted was in substantial compliance with Section 145, and hence held
that all that is required is that the witness must be treated fairly and must    F
be afforded a reasonable opportunity of explaining the contradictions after
his attentions has been drawn to them in a fair and reasonable manner. On
the facts of that case, #1ere is no dispute with the proposition laid therein.

      So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn
to the statement attributed to him as recorded by DW-19 (Nawal Kishore           G
Prasad) we are not persuaded to reject the evidence of PW 32 that he gave
Ex.14 statement at the venue of occurrence and that he had not given any
other statement earlier thereto.

      Learned counsel for the appellant next pointed out as a peculiar           H
    236                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A feature in the case that none of the injured had identified the assailants
    (except two or three appellants) but only those witnesses who did not
    sustain any injury have claimed to have identified a bulk of them. Even if
    so, it cannot have any adverse impact on the credibility of the witness
    relied on by the two courts as it could happen many of time that persons
    sustaining injuries in a mass of attack might not be in the same position to
B   observe men and events as the non injured persons. lt is quite probable
    that the vision of the injured might get blurred, as their focus of attention
    would instinctively get diverted to the injuries sustained by them. They
    could then be in a less advantageous position to watch or observe the
    events than the non-injured witnesses.

C         That apart, there is no justification in drawing a hiatus between injured
    witnesses and non-injured witnesses in this case as for the capacity to
    identify the assailants while in action. PW-4 (Babanand Bhagat), PW-9
    (Doman Bhagat), PW-14 (Krishna Das,) PW-27 (Damyanti Devi) PW-33
    (Ajay Kumar) are the witnesses who sustained injuries in this episode.
    Among them PW-14 is a small boy who said he got up from sleep on
D   hearing gun shots and even at the first sight of occurrence he fell under a
    shock and became unconscious. The other injured witnnesses have said
    that they woke up from sleep and on seeing the surroundings in flames,
    they ran for life and some sustained gun shots during the flight while the
    others sustained bums. If this was the position, we cannot find fault with
    them as to their inability to identify a good number of assailants.
E
         Some of the appellants have putforth the plea of alibi. The appellants
    who resorted to the plea of alibi in this case are A-l (Krishnadev), A-2
    (Shyam Sunder Singh), A-3 (Madan Mohan Sharma) and A-34 (Vinay
    Kumar Singh). As against the testimony of a large number of witnesses
F   who claimed to have noticed those appellants actively participating in the
    occurrence the above noted appellants have led evidence to show that
    during the relevant time they were at far away places. Such plea was
    emphatically reiterated by the learned counsel in this Court also.

          According to the appellants-Krishnadev (A-l) and Shyam Sunder
G Singh (A-2) on 5.2.1980 evening they were arrested by police in connection
  with case No.9(2)90 of Kankerbagh Police Station and was remanded to
  judicial custody by the Chief Judicial Magistrate, Patna and were interned
   in the Central Jail, Patna where they remained till l 9.2.1980 and were
  shifted to sub-jail at Jehanabad where they remained till 23.2.1980 until
  they were released on bail. Those appellants examined official and
H non-official witnesses to prove the plea of alibi; the Public Prosecutor in
          BINAYKR.SINGHv. STATEOFBIHAR[THOMAS,J.]                       237


the trial court had mounted a severe onslaught on the said plea by contending A
that jail records were manipulated at the instance of these appellants,
though perhaps in the later period of incarceration in connection with the
said those accused might have been detained in jail.

      Appellant Madan Mohan Sharma (A-3) advanced his plea of alibi
by saying that he was on the security guard of a Minister of the Bihar B
Government (Thakur Prasad Singh-DW-38) and that on the night of
6.2.1980 a dinner was hosted by that Minister in his official residence and
that A-3 (Madan Mohan Shanna) was then attending his security duty at
the residence of the Minister. The said appellant examined a number of
witnesses including the Prhate Secretary to the Minister and some MLAs,
besides the Minister himself, to establish his plea. Public Prosecutor who C
cross-examined the witnesses took the stand that PW-38 had stopped down
to speak to the false evidence only to salvage himself from the murk of
accusation flung on him inside the legislative assembly that someone in
his personal staff played the main role in the carnage which shocked Bihar
State.
                                                                                D
       Appellant, Binay Kumar Sharma (A-32) adopted the defence that he
was admitted as an inpatient at Nalanda Medical College Hospital with
acute appendicitis and was treated there for a long period which covered
this crucial period of 6.2.1980 also. He examined Dr. Binod Bihari Sinha
(DW-6) and DIG of Police-Kapil Dev Dubey (DW-8) to prove his plea.              E
The Public Prosecutor who cross-examined those witnesses assailed DW6-
Doctor suggesting that he became privy to the fabrication of documents to
concoct the plea of alibi.

       The trial court and the High Court concurrently repelled, in toto, the
plea of alibi putforth by the above appellants after dealing, in extenso,       F
with the materials pcoduced by them in the Court in support of the plea.
Learned counsel who argued for the appellants in this Court submitted
first that the strict view adopted by the two Courts below that unless the
plea of alibi is conclusively established no benefit would enure to the
accused, is not a sound proposition in criminal cases. Learned counsel          G
further contended that if an accused succeeded in creating a reasonable
doubt regarding the possibility of himself to be elsewhere then the plea of
alibi needs acceptance.

       We must bear in mind that alibi is not an exception (special or
general) envisaged in the Indian Penal Code or any other law. It is only a      H
    238                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A rule of evidence recognised in Section 11 of the Evidence Act that facts
    which are inconsistent with the fact in issue are relevant. Illustration (A)
    given under the provision is worth reproducing in this context:

                 "The question is whether A committed a crime at Calcutta
                 on a certain date; the fact that on that date, A was at Lahore
B                is relevant."

         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 take place he was so far away from the place of occurrence
  that it is extremely improbable that he would have participated in the
C 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, the burden is
  on the prosecution to prove that the accused was present at the scene and
  has participated in the crime. The burden would not be lessened by the
  mere fact that the accused has adopted the defence of alibi. The plea of the
  accused in such cases need be considered only when the burden has been
D discharged by the prosecution satisfactorily. 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. When the presence
  of the accused at the scene of occurrence has been established satisfactorily
E 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. But ifthe 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
F benefit uf 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 Uttar Pradesh, (1981] 2
G SCC 166, State of Maharashtra v. Narsingrao Gangaram Pimple, AIR
   (1984) SC 63.

          Th~ appellants Krishnadev (A-1) and Shyam Sunder Singh (A-2)
    adopted the defence that they were taken to Central Jail, Patna on 5.2.1980
    on a remand order passed by the Chief Judicial Magistrate, Patna. We
H
         BINAY KR. SINGH v. STATE OF BIHAR [THOMAS, J.]               23 9


need not vex our mind with the evidence pertaining to the internment of A
those appellants in the sub-jail, Jehanabad from 19.2.1980 till 23.2.1980.
Let that be as they say. But their detention in the Central Jail, Patna from
5.2.1980 which continued any day beyond 6.2.1980 is the crucial period
so far as this case is concerned. In considering that crucial aspect the first
question to be pondered over is, why should they have been arrested at all.
Their case is that one Anil Kumar lodged a complaint with the police B
alleging that these two appellants had snatched Rs. 10 from one of them
and so an FIR was registered against them which included the offence
under Section 3 79 !PC and the arrest is said to have been made on its
basis. The two Courts below have observed that the said Anil Kumar is a
fictitious character and he was never traced out later. It was beyond
comprehension for the two Courts as to why these two appellants did not C
even move for bail inspite of very clear advantageous factors for them.
One is, they are nephews of appellant Madan Mohan Sharma (A-3) who
was a police personnel on the security of one of the Ministers and he was
stationed at Patna itself. Second is, bailing out the appellants would have
been only a matter for making a motion as the offences lodged against
 them were seemingly trivial. Besides those incongruity, the very D
 unsatisfactory way the gate register of the Central Jail, Patna was
 maintained, has been specifically noticed by the two Courts. In view of all
such broad circumstances the trial judge agreed with the contention of the
 Public Prosecutor that a bogus complaint with the fictitious complainant
 would have been created in advance for using it for a plea of alibi. After E
 exhaustively dealing with the evidence on this aspect, the High Court also
 concurred with that view.

      Of course, Sri UR Lalit, learned Senior Counsel has vehemently
argued that the courts should have presumed the genuineness of all official
records and accepted the proof as more than reasonably sufficient to          F
discharge their burden. We shall not forget that presumption is only a rule
in the realm of burden of proof and the reasons concurrently weighed
with the two courts below for disbelieving the plea of alibi put forth by
these two appellants are quite sturdy. At any rate, in an appeal by special
leave granted under Article 136 of the Constitution, this Court would not     G
be inclined to upset the finding of fact based on such weighty reasons,
more so when the reasons advanced by both the courts in support of the
finding appeal to us also.

      Sri UR Lalit, learned Senior Counsel, next contended that the plea
of alibi advanced by the appellant Madan Mohan Sharma (A-3) that he           H
    240                      SL!PREMECOURT REPORTS (1996] SUPP. 8 S.C.R.


A was on guard duty in the Minister's bungalow should have been accepted.
    The distance between the Minister's residence and the place of occurrence
    is 60 kilometres. It is possible for anyone to cover the said distance in two
    hours. Perhaps, he was doing guard duty in the bungalow of the Minister
    but to hold that he was at the Minister's bungalow on the night of6.2. I 980
    the evidence must be ve1y credit-worthy. Those defence witnesses who
B   have spoken to this aspect, including the Minister himself (DW-36), have
    simply said long after that date that one particular person was doing guard
    duty on 6.2.1980. It should be remembered that Madan Mohan Shanna
    (A-3) had no special role to play during the dinner hosted by the Minister.
    The witness could not say who were the other persons on guard duty on
    any other day. Those aspects apart, it is revealed in the evidence of the
C   Minister (DW-36) that on the next day of occurrence a furore had erupted
    in the Bihar Legislative Assembly with the allegation that a member of the
    personal staff of the Minister, by name Madan Mohan Sharma, was involved
    in the Paras Bigha massacre and then the Minister has said on the floor of
    the assembly that Madan Mohan Sharma was not on his personal staff but
    was only a security guard. He did not say, in the Legislative Assembly,
D   that Madan Mohan Sharma was at his official residence at Patna during
    the relevant time. For these reasons, we are satisfied that the trial court
    and the High Court have rightly rejected his plea of alibi.

           Sri Sushi! Kumar, learned Senior Counsel arguing for the appellant
    Binay Kumar Singh (A-34) persued the plea of alibi put forth by that
E   accused in the trial court. He examined one Dr. Binod Bihari Sinha who
    was Associate Professor of Medicine at Nalanda Medical College, Patna as
    DW-36. The witness of course, said that appellant Binay Kumar Singh
    was admitted as an in-patient of the said Medical College Hospital for
    appendicitis and was not in a position to move out of his bed even on
    6.2.1980. The witness said this with reference to the Bed-head Ticket
F   produced by him. But the cross-examination of DW-6 has exposed the
    falsity of his evidence. That a patient admitted for acute case of appe.ndicitis
    in a Medical College Hospital was never shown to a surgeon creates a
    serious doubt as to whether this appellant was really admitted in that hospital
    as claimed by DW-6. The witness said in cross-examination that the patient
G   left the hospital soon after his admission but again returned on the next
    day. PW-6 also admitted that the Bed-head Ticket referred to by him did
    not contain a·.iy entry made by him. No mark of identification of the
    patient was noted in such Bed-head Ticket and DW-6 had no previous
    acquaintance with this appellant. No other document was produced to
    support the plea. On such a meagre and unsatisfactory evidence, the two
H   Courts below have rightly discarded his plea of alibi.
          BINAYKR.SlNGHv. STATEOFBIHAR[THOMAS,J.]                         241


      Turning back to the prosecution evidence regarding identification of        A
the appellants Sri Sushi! Kumar, learned Senior Counsel adverted to certain
anomalies which crept in the deposition of some witnesses; one such
anomaly relates to the evidence against appellant Binay Kumar Sharma.

      There were two accused in this case bearing that name Binay Kumar
Sharma. One of them is the appellant in Criminal Appeal No 277 of 1987            B
and he was arrayed as A-34 in the trial court. The other Binay Kumar
Sharma is from Sarthua Village and he has jumped the bail and hence his
trial was separated from the rest of the accused as per order of the trial
court dated 15.5.1982. It is true that PW-11 (Mithlesh Paswan) who was
examined in Court on 29.11.1982 mentioned two persons as Binay Sharma
as having been identified by him. On the strength of it, learned senior           C
counsel tried to make out a strong point as seriously affecting the prosecution
case against appellant Binay Kumar Sharma (A-34). At the first blush, we
too felt that it has some serious implication on the identification evidence
of that appellant, but on closer scrutiny, we are convinced that there is no
merit in that contention. What PW-11, in fact, said was that he recognised
those two persons participating in the occurrence. It was not as though he        D
identified two persons in the trial court bearing that name from out of the
accused arrayed.

      Arguments were addressed before us for reappreciation of evidence
of the eye-witnesses on the strength of some discrepancies highlighted            E
from their testimony. But we are not disposed to disturb the concurrent
finding regarding reliability of the evidence of those witnesses
on such discrepancies as they do not appear to us to be material or serious.

      We have noticed that Mritunjaya (A-23) and Permanand Sharma
(A-20) and Madan Mohan Sharma son of Ambica (A-24) were identified                F
by more than two eye witnesses as participants in the occurrence. Out of
those witnesses the testimony of PW-10 and PW-32 was accepted by both
courts. As for the remaining appellants both courts have accepted the
testimony of at least three witnesses each as referring to each appellant.
There is no rule of evidence that no conviction can be based unless a             G
certain minimum number of witnesses have identified a particular accused
as member of the unlawful assembly. It is axiomatic that evidence is not to
be counted but only weighed and it is not the quantity of evidence but the
quality that matters. Even the testimony of one single witness, if wholly
reliable, is sufficient to establish the identification of an accused as member
of an unlawful assembly. All the same, when the size of the unlawful              H
    242                     SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.


A assembly is quite large (as in this case) and many persons would have
    witnessed the incident, it would be a prudent exerc:ise to insist on at least
    two reliable witnesses to vouchsafe the identification of an accused as
    participant in the rioting. In Masalti v. The State of Uttar Pradesh, AIR
    (l 965) SC 202, a Bench of four Judges of this Court has adopted such a
    formula. It is useful to extract it here:
B
                  "Where a criminal court has to deal with evidence pertaining
                  to the commission of an offence involving a large number of
                  offenders and a large number of victims, it is usual to adopt
                  the test that the conviction could be sustained only if it is
                  supported by two or three or more witnesses who give a
c                 consistent account of the incident."

          We feel that the said proposition can profitably be followed in this
    case also as the said proposition has stood the test of time.

          We are satisfied that the two courts have considered the evidence
D from the correct angle and found the appellants guilty of the offences
    keeping in view the above proposition. There is no reason for us to interfere
    with the conviction and sentences passed on the appellants. The appeals
    are accordingly dismissed. Bail bonds executed by the appellants shall
    stand cancelled. They shall be taken into custody to undergo the remaining
E   part of sentence.

    v.s.s.                                                  Appeals dismissed.