Plea Of Alibi Taken By Accused Need Not Be Entertained Till Prosecution Establishes Its Case Satisfactorily: Kerala High Court

Justice Sophy Thomas stated that a plea of alibi can be used as a shield not as a sword.

“In a plea of alibi, it is the burden of the accused to prove with absolute certainty that the presence of the accused at the scene of crime at the time of occurrence was rather an impossibility. He has to adduce positive evidence to prove the plea of alibi, and that opportunity arises only when prosecution discharges its burden to prove the incident, and the participation of the accused in that incident. Plea of alibi is a defence available for the accused, when prosecution establishes the case against him. Hence it has to be used as a shield, and not as a sword. So a plea of alibi taken by the accused need not be entertained, till prosecution establishes its case satisfactorily. Therefore the plea of alibi cannot be entertained, before prosecution is given an opportunity to establish its case.”

The petitioner was the sole accused and was alleged that he sexually assaulted 11 year old minor girl who was his close relative and was facing charges under Sections 376AB (punishment for rape on woman under twelve years of age), 376(2)(n) (punishment for committing rape repeatedly on same woman) of IPC and under the POCSO Act. He has approached the High Court to quash the final report and proceedings against him on the files of Fast Track Special Court, Pattambi.

The specific allegation was that in March, 2020, the petitioner sexually assaulted the minor girl by touching her private parts and in July, 2022, she was subjected to penetrative sexual assault inside his autorickshaw.

The Petitioner stated that he was innocent and a false case was filed against him out of vengeance. He also produced his passports to state that he was abroad during the alleged period of sexual assault.

The Court stated that since the petitioner was a relative of the minor girl, it was not possible for the victim to wrongly identify the petitioner as her attacker. It also stated that it was not possible that a minor girl aged 11 years would remember all the dates of sexual assault with mathematical exactitude. It also stated that at this age it would not know if any manipulations were made on the passport or travel documents.

It stated that the burden on the petitioner was heavy since the defence was taking plea of alibi and passport and travel documents have to be subjected to strict proof.

The Court explained about alibi under Section 11 of the Evidence Act. It stated that the term alibi means 'elsewhere' and it makes facts inconsistent with the fact in issue relevant. The Court said thus: “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.”

The Court stated that a plea of alibi can be put up as a defence by the accused only after the prosecution discharges their burden by proving the incident. “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”, stated the Court.

The Court thus stated that it cannot consider passport and travel documents for quashing the final report and pending proceedings. it gave liberty to the petitioner to take the defence of plea of alibi at an appropriate stage.

Accordingly, the petition was dismissed.

Counsel for Petitioner: Advocates Vishnu Bhuvanendran, B.Anusree, Miral K.Joy, Abhilash C.V.,Varun Jacob

Counsel for Respondents: Public Prosecutor Prasanth M P

Citation: 2024 LiveLaw (Ker) 162

Case title: Khalid v State of Kerala

Case number: CRL.MC NO. 503 OF 2024

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