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2024 Supreme(Ker) 164
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sophy Thomas, J.
Khalid – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor And Ors. – Respondents
CRL.MC NO. 503 OF 2024
Decided On : 27-02-2024
Advocate Appeared:
For the Petitioner: Vishnu Bhuvanendran, B.Anusree, Miral K.Joy, Abhilash C.V., Varun Jacob, Advs.
For the Respondent: Sri.Prasanth M.P, Public Prosecutor
The burden of proof is on the prosecution to establish the incident and the role of the accused, and the plea of alibi can only be considered after the prosecution satisfactorily discharges its burden. The accused has a heavy burden to prove the plea of alibi with absolute certainty.
Headnote:
Alibi - Criminal Law - IPC 376AB, 376(2)(n), POCSO Act, 2012 3(b), 4, 5(l), 5(m), 6(1) - The court discussed the plea of alibi as a defense, burden of proof on the prosecution, and the requirement for the accused to establish the plea of alibi with absolute certainty. The court cited precedents to emphasize the heavy burden on the accused to prove the plea of alibi and the need for strict proof in establishing it.
Fact of the Case:
The petitioner sought to quash the final report and proceedings against him, claiming innocence and presenting passports to prove he was abroad during the alleged sexual assaults on the victim girl.
Finding of the Court:
The court found that the plea of alibi cannot be entertained before the prosecution establishes its case satisfactorily and dismissed the petition, leaving open the petitioner's contentions to be taken up in the trial court.
Issues: Validity of the plea of alibi, burden of proof on the prosecution, and the requirement for strict proof in establishing the plea of alibi.
Ratio Decidendi: The burden of proof is on the prosecution to establish the incident and the role of the accused, and the plea of alibi can only be considered after the prosecution satisfactorily discharges its burden. The accused has a heavy burden to prove the plea of alibi with absolute certainty.
Final Decision: The Criminal Miscellaneous Case is dismissed, but the petitioner is allowed to take the plea of alibi before the trial court at an appropriate stage and to establish the same by adducing positive evidence.
ORDER :
This petition is at the instance of the sole accused in Sessions Case No.1238 of 2022 on the file of Fast Track Special Court, Pattambi, for quashing Annexure-A2 final report in Crime No.500 of 2022 of Cherpulassery police station and the proceedings pursuant thereto.
2. The prosecution allegation is that, in March 2020, the petitioner sexually assaulted the victim girl aged 11 years by touching her private parts. In May 2021, he committed penetrative sexual assault on the minor girl inside his autorickshaw, and again on 09.07.2022, he sexually assaulted the victim by touching her chest.
3. According to the petitioner, he is absolutely innocent and he was falsely implicated without any rhyme or reason. The victim is a close relative of the petitioner, and only out of vengeance, a false complaint was foisted against him. According to him, during the period of alleged sexual assault on the victim girl, he was abroad. He produced Annexures A3 and A4 passports to show that, he was not available in Kerala during the alleged period of assault. So, his prayer is to quash Annexure-A2 final report and the proceedings in SC No.1238 of 2022 pending against him, before the Fast Track Special Court, Pattambi.
4. Heard learned counsel for the petitioner and learned Public Prosecutor.
5. The petitioner produced Annexures A3 and A4 passports to show that, he left Kerala for Saudi Arabia on 18.05.2015 and came to his native only on 20.11.2016. Thereafter, he returned to Saudi Arabia on 21.10.2019 and came back to Kerala on 26.02.2022. Again he returned to Saudi Arabia on 24.06.2022 and came back to Kerala on 10.09.2023. According to him, on the dates of alleged sexual assault on the victim girl, i.e, 27.03.2020, 29.05.2021, and 09.07.2022, he was not available in Kerala. It is true that, Annexures-A3 and A4 passports will show the travel details of the petitioner on the dates mentioned by him.
6. The victim girl is aged only 11. The petitioner claims to be a close relative of the victim. So, the chances of mistaken identity is very rare. But, regarding the date of assault mentioned by the victim girl, who is aged only 11, we cannot expect that a 11 year old girl will remember all the dates of sexual assault on her, with mathematical exactitude. Moreover, we may not know at this stage regarding the manipulations or malpractices if any done in his passport or travel documents. So, at present, it is not safe to quash the final report, in which the petitioner is facing charges of serious offences under Sections 376AB, 376(2)(n) of IPC and Sections 3(b), 4, 5(l), 5(m) and 6 (1) of the POCSO Act, 2012.
7. The crime was registered on the basis of the FI Statement given by the victim girl. Police conducted detailed investigation, by questioning witnesses including the Teacher of the school in which the victim girl was studying. The genuineness of the passport, the dates of travel etc. are to be put to strict proof, and the burden of the petitioner is rather heavy while taking a plea of alibi as a defence.
8. Alibi is only a rule of evidence recognized in Section 11 of the Evidence Act, that facts which are inconsistent with the fact in issue become relevant. Plea of alibi is a question of fact. The Latin word alibi means ‘elsewhere’. The accused takes that plea as a defence to show that, he was falsely implicated, as he was away from the place of occurrence, when the occurrence took place, and it was extremely improbable that he had participated in that crime.
9. It is the burden of the prosecution to prove the incident, and also the role of the accused in that incident. That burden will not be lessened by the mere fact that the accused had adopted the defence of Alibi. Only when prosecution succeeds in discharging the burden by proving the incident, and by proving participation of the accused in that incident, the plea of alibi put up by the accused needs to be considered. When the evidence adduced by prosecution is able to create a reasonable doubt i
