CASE COMPENDIUM

1. Uday Kumar v State of Karnataka 1998 Cr LJ 4622 (SC)

It was then contended on behalf of the appellant that Suresh being the son of his sister

(appellant's) and the relations between them being cordial and affectionate, there was no reason

for the appellant to commit the present crime. We are not impressed by this submission because

of our aforesaid conclusions about the guilt of the appellant. It might be, as stated earlier, the

appellant appears to be very much obsessed with the superstitious beliefs and it is because of that

he did this crime. However, this observation is not germane to the finding of guilt against the

appellant. There is no suggestion to any of these witnesses that any outsider had entered the

premises and then committed the crime. In the absence of such material on record, we do not

accept this contention. It is true that in a case of circumstantial evidence, motive is one of the

circumstance which assumes importance but it cannot be said that in the absence thereof other

proved circumstances although complete the chain would be of no consequence. It was then

contended on behalf of the appellant that he (appellant) was coaching badminton (shuttle) to

number of young boys and girls. He was also distributing toffees, sweets etc. to the boys and

girls. He was known for his affectionate and loveable conduct. If this was the image of the

appellant, it was urged that it would be unbelievable that he would commit the crime in question.

Assuming that the appellant possessed these good qualities but that would not make the

prosecution evidence unbelievable which is otherwise found unimpeachable.

2. Dudh Nath pandey v State of U.P, AIR 1981 SC 911

19. Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi

of the appellant. We think not. The evidence led by the appellant to show that, at the relevant
time, he was on dut at his usual place of work at Naini has a certain amount of plausibility but

that is about all. The High Court and the Sessions Court have pointed out many a reason why that

evidence cannot be accepted as true. The appellant's colleagues at the Indian Telephone

Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk

at or about the time when the murder took place and further, that he was arrested from within the

factory. We do not want to attribute motives to them merely because they were examined by the

defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And,

Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often,

they tell lies but so do the prosecution witnesses. Granting that D.Ws. 1 to 5 are right, their

evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to

prove that the appellant could not have been present near the Hathi Park at about 9-00 A.M.

when the murder of Pappoo was committed. The plea of alibi postulates the physical

impossibility of the presence of the accused at the scene of offence by reason of his presence at

another place. The plea can therefore succeed only if it is shown that the accused was so far away

at the relevant time that he could not be present at the place where the crime was committed. The

evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant's

presence at the Naini factory at 8-30 A.M. and at the scene of offence at 9.00 A.M. So short is the

distance between the two points. The workers punch their cards when they enter the factory but

when they leave the factory, they do not have to punch the time of their exit. The appellant, in all

probability, went to the factory at the appointed hour, left it immediately and went in search of

his prey. He knew when, precisely, Pappoo would return after dropping Ranjana at the school.

The appellant appears to have attempted to go back to his work but that involved the risk of the

time of his re-entry being punched again. That is how he was arrested at about 2-30 P.M. while
he was loitering near the pan-shop in front of the factory. There is no truth in the claim that he

was arrested from inside the factory.

3. State of Maharashtra v Narsingrao AIR 1984 SC 63.

18. The High Court seems to have devoted a major part of its judgment to the various case

diaries produced before the court in order to establish that the accused was not present at the

police station either on the 9th or on the 13th of April 1972 when the first two demands were

made. According to the High Court this gave a sufficient alibi to the respondent from which it

could be safely inferred that if he was not present at the police station, there could be no occasion

for him to make any demand for bribe from the complainant. Assuming that the recitals in the

said case diaries are admissible (though we have serious doubts about it) yet it does not at all

exclude the presence of the respondent at the Ambarnath police station on the 9th and 13th

because he was not sent away to a place situated far from Bombay but was in some other police

station within a radius of a few miles only. Even if he was deputed to some other place he was in

possession of a jeep and he could visit the Ambarnath police station for a few minutes on any of

these dates. It is well settled that a plea of alibi must be proved with absolute certainty so as to

completely exclude the possibility of the presence of the person concerned at the place of

occurrence. Such, however, is not the case here. Therefore, the discussion of the case diaries,

which engaged a substantial portion of the High Court judgment was really an exercise in futility.

4. Binay Kumar Singh v State of Bihar 1997 Cr LJ 362 (SC).

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 take 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 for establishing the plea of alibi. This

Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of Uttar Pradesh

1981CriLJ618 , State of Maharashtra v. Narsingrao Gangaram Pimple 1984CriLJ4 .

5. Visveswaran v. State Rep. by S.D.M, AIR 2003 SC 2471

11. It is unfortunate that despite the aforesaid facts, the test identification parade was not held.

An important aspect of the case is that the appellant had beard and moustaches when PW1 and

PW2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence.

PW1 and PW2, therefore, it is evident, could not identify him in Court and stated in their
deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a

natural corroboratory from the statements of PW1 and PW2. The identification of the accused

either in test identification parade or in Court is not a sine qua non in every case if from the

circumstances the guilt is otherwise established. Many a times, crimes are committed under

cover of darkness when none is able to identify the accused. The commission of crime can be

proved also by circumstantial evidence. In the present case, there are clinching circumstances

unerringly pointing out the accusing finger towards the appellant beyond any reasonably doubt.

6 Surendra Narain @ Munna Pandey v. The State of U.P, [1998] 1 SCC 76

7. The purpose and evidentiary value of identification parade have been considered in a

number of cases. In Inre Sangiah 49 Cr. L.J. 89 Rajamannar, J discussed the matter at length

and said thus :

I am unable to find any provision in the Code which entitles an accused to demand that

an identification parade should be held at or before the enquiry or the trial. An

identification parade belongs to the stage of investigation by the police. The question

whether a witness has or has not identified the accused during the investigation is not

one which is in itself relevant at the trial. The actual evidence regarding identification

is that which is given by the witnesses in the Court. The fact that a particular witness

has been able to identify the accused at the identification parade is only a circumstance

corroborative of the identification in a Court. If a witness has not identified the

accused at the parade or otherwise during the investigation the fact may be relied on by

the accused, but I find nothing in the provisions of the Code which confers a right on

the accused to demand that the investigation should be conducted in a particular way.
As the learned Judges pointed out in 1932 M.W.N. 427 "Identification parades are held

not for the purpose of giving defence advocates material to work on, but in order to

satisfy investigating officers of the bona fide of the prosecution witnesses". In AIR

1948 Lah 303 Blacker, J. held, thus:

"Whenever an accused person disputes the ability of the prosecution witness to identify him, the

Court should direct an identification parade to be held save in the most exceptional

circumstances".

With great respect to the learned Judge I am unable to find any provision of law which

compels the Court to so direct a parade. It is not clear from the judgment whether the

Court making an enquiry or holding the trial should stay its proceedings and direct the

parade to be held before another Magistrate. In my opinion it does not take into

account the important fact that an identification parade is a part of the investigation

and once the case has reached the stage of an enquiry before the Magistrate the

investigation is at an end and all that takes place in Court form part of the record of the

case.

Now it is quite clear that statements made at an identification parade are not

substantive evidence at the trial. It must be very embarrassing to the Magistrate

making an enquiry to listen to statements made by the witnesses at an identification

parade which will not be evidence at the enquiry. Further, it is not incumbent on the

prosecution to examine all the witnesses cited by them and all those who took part in

the identification parade . It will then mean that the Magistrate has heard the statement

of witnesses who will not be o examined at the enquiry. If on the other hand, it is
suggested that a different Magistrate should hold the identification parade it appears to

me that there is no provision whatever for such a course when a particular Magistrate

is seized of the case. The observations in AIR 1946 Lah 48 are really obiter because

that case dealt with a regular appeal against the conviction by a Court of Session. In

that case the Magistrate who made the enquiry refused an application by the accused to

arrange for an identification parade on the following grounds viz., that the witnesses

knew the accused before and that the application was made only for the purpose of

delay. The learned Judges held that the reasons given by the Magistrate were not

sound. It is true that they went on to observe that should any serious question of

identity arise during the courses of the trial the ability of the witnesses to identity the

accused may be put to test before the trial. With great respect I do not agree. If a case

is posted for trial any test as to the ability or creditability of the witnesses should be

decided only in Court and not by means of an identification parade, the proceedings at

which will not form part of the record of the Court.