Plea of alibi by convicts an afterthought: Supreme Court

New Delhi: The Supreme Court on Friday rejected the plea of alibi raised by three of the four convicts in the December 16, 2012 gangrape and murder case, saying it was an "afterthought" and could be read as an additional circumstance against them.

The court said the evidence produced by them in support of their plea of alibi was "inconsistent and contradictory" in nature and prosecution evidence overweighted their version.

Convicts Pawan Kumar Gupta and Vinay Sharma had claimed that on the evening of December 16, 2012, they were in the DDA District Park in Hauz Khas area of South Delhi watching a musical event organised in connection with Christmas celebration and they were not in the bus and had not committed any offence with the woman or her friend.

Third convict Akshay Kumar Singh alias Thakur had claimed that he was not in Delhi on the night of the incident and left for his village in a train a day before on the ticket of his brother Abhay, along with his sister-in-law and nephew.

A three-judge bench, headed by Justice Dipak Misra, said their plea "appears to be an afterthought and rather may be read as an additional circumstance against them."

The bench, also comprising justices R Banumathi and Ashok Bhushan, said when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus regarding his presence on the spot is established by the prosecution.

"While weighing the plea of alibi, the same has to be weighed against the positive evidence led by the prosecution, i.E. Not only the substantive evidence of prosecution witness 1 (eye witness and the woman's friend) and dying declarations, but also against the scientific evidence, viz., the DNA, finger print and bite marks analysis, the accuracy of which is scientifically acclaimed," the bench said.

Considering the "inconsistent and contradictory" nature of the evidence of alibi led by the convicts against the positive evidence of the prosecution, including scientific, the bench held that they have miserably failed to discharge their burden of absolute certainty regarding their plea.

The apex court, however, said the plea of alibi raised by Pawan and Vinay was rightly rejected by the trial court which has been given the stamp of approval by the Delhi High Court.

It also said that the video clip brought in by Vinay, showing that he was present in the park on the evening of the incident, appeared to have been tampered.

Regarding Akshay, the bench said the defence witnesses brought by him were his relatives including his wife and, as observed by the trial court and high court, they tried to wriggle him out of the messy situation, as is the natural instinct of the family members.