The verdict in the Nithari case by the CBI Special Judge has led to a debate on whether the conviction and death penalty awarded to the accused, Moninder Singh Pandher was justified. Those who suggest that the trial court allowed itself to be influenced by public opinion, rather than pronounce judgment in accordance with law, point out that the CBI did not find Pandher guilty of conspiracy to murder in this first case whose trial has concluded. The CBI did not seek Pandher’s conviction for murder because he was abroad, in Australia during the period of the serial murders at his home in Noida. A plea for justice in this case in accordance with the principle of establishing guilt beyond reasonable doubt has been advanced by some newspapers. (Read this, for example).
In this update in Frontline, I suggest that the Special Judge cannot be faulted on this ground because she rightly concluded, following some precedents set by the Supreme court in similar cases, that the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. Therefore, the Special Judge’s dismissal of Pandher’s defence of alibi – however clinching it might be – carries conviction. The burden of proving the plea of alibi, under Section 11 of the Evidence Act, is on the accused. Therefore, the prosecution’s excuse for not seeking the accused’s conviction on this ground – when the circumstantial evidence against him is substantial – is misleading.