Case commentary

Published date01 July 2019
Date01 July 2019
DOI10.1177/1365712719853154
Case commentary
Michael Plaxton
University of Saskatchewan, Canada
Eyewitness identification; disclosure; credibility; prior
inconsistent statements—India
On 5 June 2003, a gang of seven or eight people entered a hut in a rural village, murdered five members
of the family living there, and raped one other. Two members of the family, M and V, survived. On the
strength of their identification, the six defendants were convicted and sentenced to death. In 2007, the
High Court varied the sentence of three defendants to life imprisonment. Later, the Supreme Court of
India restored the death sentence for all six. In March 2019, however, the Supreme Court reviewed its
earlier decision, and set it aside: Ankush Maruit Shinde and others vState of Maharashtra, Criminal
Appeal Nos 1008–1009 of 2007; State of Maharashtra vAmbadas Laxman Shinde and others ,
Criminal Appeal Nos 881–882 of 2009; Ambadas Laxman Shinde and others vState of Maharashtra,
Criminal Appeal Nos 268–269 of 2019, reported at https://www.jurist.org/news/wp-content/uploads/
sites/4/2019/03/J1AnkushMarutiShinde2019.pdf.
The prosecution rested its decision principally on the identification evidence. Writing for the Court,
Justice Shah observed: ‘[T]hough the charge is of rape and murder, there is no forensic evidence
corroborating the prosecution case.’ (9.1) It continued: ‘Other than the evidence of [M and V], there
is no other evidence to link the accused to the offence. Looking to the nature of the crime committed in
which five persons were killed brutally and one was also raped, and the serious consequence it may have
for those convicted, it is necessary that the evidence should be of a very high quality and satisfy the
higher burden of proof.’ (9.2)
For this reason, much of the court’s ruling focused on the problems surrounding the identifications.
Both M and V identified the defendants in a line-up, as well as in open court. There were real concerns,
though, as to whether M and V were in any position to identify their assailants. The attack took place at
10:30 pm. It is unclear whether there was light in the hut. According to M, ‘the culprits were using
battery torches and were searching in torchlight’. There was some doubt as to whether there was an
electric light in the hut, and whether it was turned on when the attack began. But, the court noted, ‘[e]ven
if it is assumed that there was some light initially ...the rest of the incident took place under torchlights
carried by the culprits’. That being the case, neither M nor V ‘would have been able to get a proper look
at the persons who committed the offence’. Moreover, even the prosecution conceded that the two
witnesses had both ‘fallen unconscious during the incident’. Justice Shah further observed that they
could not describe the assailants or their clothes to police. Nor could M and V ‘ascribe ...specific roles
Corresponding author:
Michael Plaxton, College of Law, University of Saskatchewan, 15 Campus Dr, Saskatoon, Saskatchewan S7N5A6, Canada.
E-mail: michael.plaxton@usask.ca
The International Journalof
Evidence & Proof
2019, Vol. 23(3) 342–344
ªThe Author(s) 2019
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DOI: 10.1177/1365712719853154
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