Accused sought quashing of a final report for alleged sexual offences against an 11-year-old girl, claiming he was abroad on the dates of assault per his passports. The court held an alibi plea cannot be entertained before prosecution establishes its case and dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 27 TH DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945
CRL.MC NO. 503 OF 2024
CRIME NO.500/2022 OF CHERPULASSERY POLICE STATION, PALAKKAD
SC NO.1238 OF 2022 OF FAST TRACK SPECIAL COURT, PATTAMBI
PETITIONER/ACCUSED:
KHALID,
AGED 50 YEARS,
S/O MUHAMMED, PARAIKKAL, KUTTIKODE, THRIKKADEERI P.O,
PALAKKAD, KERALA, PIN - 679502.
BY ADVS.
VISHNU BHUVANENDRAN
B.ANUSREE
MIRAL K.JOY
ABHILASH C.V.
VARUN JACOB
RESPONDENTS/STATE:
1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031.2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXPUBLIC PROSECUTOR SRI.PRASANTH M.P
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.503 of 2024 2
“CR”
O R D E R
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.
Crl.M.C.No.503 of 2024 3
the proceedings in SC No.1238 of 2022 pending against him, before the Fast Track Special Court, Pattambi.
Crl.M.C.No.503 of 2024 4
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.
not be lessened by the mere fact that the accused had adopted the
Crl.M.C.No.503 of 2024 5
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 in the mind of the court, about the presence of the accused in the scene of crime, at the time of occurrence, the accused is definitely entitled to get benefit of that doubt. 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.
Crl.M.C.No.503 of 2024 6
plea of alibi is a que stion of fact to be entertained and decided only after prosecution takes its evidence to prove the incident, and the participation of the accused as well.
11. In Binay Kumar Singh v. State of Bihar [(1997) 1
SCC 283] , in paragraph 23, the Apex court observed as follows:
“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, 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 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 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 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
Crl.M.C.No.503 of 2024 7
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]”.
12. In Shaikh Sattar v. State of Maharashtra [(2010) 8
SCC 430] , the Apex court has observed in paragraph 35 as
follows:
“ 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.”
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
Crl.M.C.No.503 of 2024 8
participation of the accused, there is no scope for entertaining a defence plea of alibi.
Leaving open all the contentions to be taken up by the petitioner in SC No.1238 of 2022, this Crl.M.C is dismissed.
Sd/- SOPHY THOMAS JUDGE
DSV/-
Crl.M.C.No.503 of 2024 9
APPENDIX OF CRL.MC 503/2024
PETITIONER’S ANNEXURES :
Annexure-A1 TRUE COPY OF FIR IN CRIME NO.500/2022 OF
CHERPULASSERY POLICE STATION, PALAKKAD.
Annexure-A2 TRUE COPY OF THE FINAL REPORT DATED 05.11.2022
IN CRIME NO.500/2022 OF CHERPULASSERY POLICE
STATION, PALAKKAD.
Annexure-A3 TRUE COPY OF THE PASSPORT BEARING NO. K 7516762
OWNED BY THE PETITIONER.
Annexure-A4 TRUE COPY OF THE PASSPORT BEARING NO. W 5494724 OWNED BY THE PETITIONER.Annexure A5 TRUE COPY OF THE JUDGMENT DATED 07.07.2023 IN CRL MC 5267/2023.RESPONDENTS’ ANNEXURES : NIL
1 issue framed by the court
Whether the final report in Crime No.500/2022 and proceedings in SC No.1238/2022 can be quashed based on the accused's passport-based alibi plea.
Colour shows how this judgement treated each authority
Binay Kumar Singh v. State of BiharRelied on¶11
[(1997) 1 SCC 283] · Who else cites this
Shaikh Sattar v. State of MaharashtraRelied on¶12
[(2010) 8 SCC 430] · Who else cites this
8 provisions across 3 enactments
Khalid
State of Kerala
Sophy Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court