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Chanakya National Law University

Patna, Mithapur

Subject: Law of Evidence


Project: Defense of Alibi

Project submitted by:


Nishant Kumar.
Roll no.:11949.
B.A. LL.B. 2nd year
Submitted to:
Dr. P.K.V.S. Rama Rao
Lecturer Chanakya National
Law University

Acknowledgement
Although this project has been prepared by me, but this would not
have been possible without the efforts of some people because of
which I have been able to complete this project of mine.
Firstly, I would like to thank my Evidence Law Faculty Dr. P.K.V.S.
Rama Rao under whose able guidance and constant and regular
motivation towards making this project.
Secondly, I would like to thank the All mighty because this fact
cannot be contradicted that without his blessings and support
anything is possible under the sky

Chapterisation
1) Nature and Scope of Section 11 of Indian Evidence Act 1872
2) Meaning of Alibi
3) Plea of Alibi
4) Essentials of Alibi
5) Explanation of Plea of Alibi
6) Nithari Verdict and Defense of Alibi
7) Conclusion
Bibliography

Objective of the Study


The Researcher has to find the provisions relating to Alibi

To study and understand the proper meaning of Alibi.


To determine the ingredients for Defense of Alibi.
To understand and study section 11 of Indian Evidence Act 1872.

Hypothesis
The researcher has assumed the following points

Does Section 11 of Indian Evidence Act 1872 talks about Alibi.

Research Methodology
In this project, the researcher has relied on the Doctrinal Method, which is primarily based
upon books, journals, news, articles etc. A comprehensive study is made in order to arrive at
analytical & critical support of the arguments. The segments are structured and written actively.
The writing style is descriptive as well as analytical. This project has been done after a thorough
research based upon intrinsic and extrinsic aspect of the assigned topic.

Principle & Scope of Section 11


Section 11 declares the relevancy of a class of facts which in themselves are not relevant, but
which acquire relevancy by reason of their connection with some relevant fact on which the
prosecution relies for the purpose of proving its case against the accused. This class of facts is
highly valuable to the accused in support of his defence, because they tend, together with the
explanation offered by the accused of the circumstances appearing in the evidence against him,
to expose the infirmity of the prosecution case and to demolish the inferential structure on which
that case rests. The accused can bring such a fact on record either by suggesting the existence to
the prosecution witnesses in their cross-examination, or by proving it through his own witnesses.
Whenever any such fact is sought to be produced by the accused the first question is whether it is
relevant. The test for that is the one laid down in sections 9 and 11 of the Act, namely, whether
that fact is such as to rebut or to be inconsistent with the prosecution case, or such as to render
the existence of that case improbable or its non-existence probable. If the fact so sought to be
produced passed this test, it is relevant, if not, it is not relevant.

Scope
While the seventh section defines the meaning of the term 'relevancy' in quasi-scientific
language, the present section contains a statement in popular language of what in the former
section is attempted to be stated in scientific language. The practical effect of those two sections
is to make every relevant fact admissible as evidence. 1 This section attempts to state in popular
language the general theory of relevancy and may, therefore, be described as the residuary
section dealing with the relevancy of facts.2

1 Mark by Evidence, 17-18

2 Rangayyan v. Innasimuthu, 1956 Mad 226 (230): (1955) 2 MLJ 687

The construction of section 11 must be inferred from the words of the section. The section
requires that the irrelevant fact to be introduced in evidence in order to be relevant must be
inconsistent with the fact in issue or relevant fact or makes the existence or non-existence of such
fact highly probable which means very high degree of probability is required. Facts which are of
merely probative force cannot be offered in evidence under the section.3

3 State v. Lakshmandas Chaganlal Bhatia, 69 Bom LR 808

Meaning of Alibi
The word 'alibi' is of Latin origin and means ``elsewhere'`. It is a convention term used for the
defense taken by an accused that when the occurrence took place he was so far away from the
place of occurrence that it is highly improbable that he would have participated in the crime.
Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other
law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that fats which are
inconsistent with the fact in issue are relevant. Plea of Alibi is the defense taken by the accused.
It means that he was physically not present at the time of scene of offence by reason of his
presence at another place. The burden of proving alibi is on accused. A plea of alibi if raised at
the earliest opportunity would receive great credence. The accused must be so far away at the
relevant time that he could not be away at the place where the crime was committed. In criminal
trial, defense of alibi is not generally accepted unless backed by strong and solid evidence.
According to the principles laid down by the higher judiciary, 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 defense of alibi.4
The burden of proving commission of offence by the accused so as to fasten the liability of guilt
on him remains on the prosecution and would not be lessened by the mere fact that the accused
had adopted the defense of alibi. 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 the 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

4 http://www.indiankanoon.org/doc/631717/

the accused has succeeded in proving the defense of alibi5. But once the prosecution succeeds in
discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with
certainty so as to exclude the possibility of his presence a the place and time of occurrence. An
obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in
proving of the guilt of the accused and the evidence adduced by the accused in proving his
defence of alibi. 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 place
and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence
adduced on behalf of the prosecution leaves any slot available to fit therein the defense of alibi.
The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence
Act which provides that the burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence. However, while weighing the prosecution case and
the defense case, pitted against each other, if the balance tilts in favor of the accused, the
prosecution would fail and the accused would be entitled to benefit of that reasonable doubt
which would emerge in the mind of the Court.

5 Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165

Plea of Alibi
Alibis a Latin word meaning elsewhere. The defense of alibi is a legitimate defense, and, in fact,
is often the only evidence of an innocent man.
It is a convenient term used for the defense taken by an accused that when the occurrence took
place, he was so far away from the place of occurrence that it was highly improbable that he
would have participated in the crime. Alibis not an exception (special or general) envisaged in
the Penal Code or any other law. It is only a rule of evidence recognized under section 11 of the
Evidence Act that facts, which are inconsistent with the fact in issue, are relevant. The burden of
proving commission of offence by the accused so as to fasten the liability of guilt on him remains
on the prosecution. The plea of alibi taken by the accused needs to be considered only when the
burden, which lies on the prosecution, is discharged satisfactorily. But once the prosecution
succeeds in discharging its burden, and then it is incumbent upon the accused taking the plea of
alibi to prove it with certainty, so as to exclude the possibility of his presence at the place and
time of occurrence.6
The theory of an alibi that the fact of presence elsewhere is essentially inconsistent with the
presence at the place and time alleged, and therefore personal participation is the fact.7 The
credibility of an alibi is greatly strengthened, if it be set up at the moment when the accusation is
first made, and be consistently maintained throughout the subsequent proceedings. On the other
hand, it is a material circumstance to lessen the weight of this defense, if it be not resorted to
until sometime after the charge has been made.8 An alibi, not set up at the very earliest stage, is,
in most cases, unconvincing, but that is no reason why the courts should fail to give due weight
to public documents filed before them, and afford reasonable facilities for the accused to call his
evidence. Usually, a request to call an alibi witness at the very end is vexatious and dilatory
6 Karanjit Singh v. State of Jammu and Kashmir, 2004 Cr LJ 4139 (J&K)
7 Wigmore, section 136
8 Wills' Circumstantial Evidence, p. 281

unless the alibi has been indicated at the earlier stages.9 Where the accused sets up a plea of alibi
that he was on duty at other town on the date of occurrence, the burden of proof lies on him
under section 103 to establish the plea. It is not for the prosecution to prove the fact.10
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.11
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 of commission of crime by the accused beyond any reasonable doubt, it
may not be necessary to go into it. But, once the prosecution succeeds in discharging its burden,
then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to
exclude the possibility of his presence at the place and time of occurrence. An obligation is cast
on the court to weigh in scales the evidence of the prosecution in proving of the guilt of the
accused and the evidence adduced by the accused in proving his defence of alibi.12
It is well-established that it is for the accused to prove the case of alibi to the hilt.13 It is the basic
law that in a criminal case the burden is on the prosecution to prove that the accused was present
at the scene and has participated in the crime. Once the prosecution succeeds in discharging the
burden, it is incumbent on the accused who adopts the plea for alibi to prove it with absolute
certainty so as to exclude the possibility of his presence at the place of occurrence.14
9 Sahdeo v. State of Vindhya Pradesh, 1954 VP 6
10 Satya Vir v. State, 1958 Cr LJ 1260
11 Dudh Nath Pandey v. State of Uttar Pradesh, AIR 1981 SC 911
12 Jayantibhai Bhenkaarbhai v. State of Gujarat, AIR 2002 SC 3569
13 Hari Chand v. State of Delhi, (1996) 9 SCC 112
14 Binay Kumar Singh v. State of Bihar, AIR 1997 SC 322

It should be pleaded at the earliest opportunity.15 Alibi should cover the time of the alleged
offence. In proving his alibi, the accused should not be required to prove the exact time or every
moment of time involved in order to sustain his defense. On the other hand, it is sufficient for
him to raise a reasonable doubt of his presence at the scene of the crime at the time that it was
committed. But, it must cover the time, when the offence is shown to have been committed, so as
to preclude the possibility of the prisoner's presence at the place of the crime at the relevant time.
For, if it were possible that he could have been at both places, the proof of the alibi is absolutely
valueless. The failure to establish a plea of alibi does not give rise to a presumption as to his
complicity in the crime. But, when all is said against an adverse inference, Judges and Juries
being after all human, it is difficult to ignore the subtle effect of a plea of alibi which has utterly
broken down and deliberate fabrication of evidence which is always a circumstance pointing,
though never conclusively, to the guilt of the accused.16

According to the Supreme Court the prosecution cannot be said to have proved its case merely
because the evidence in support of the plea of alibi taken by the accused is found to be
untrustworthy.17

15 Thiagraja v. Emp., Cr LJ 785


16 Sarat Chandra v. Emperor, 35 Cr LJ 1335
17 State of Haryana v. Prabhu, AIR 1979 SC 1019

Essentials of Plea of Alibi


(a) Who may take plea of Alibi?
Plea of Alibi is the defense taken by the accused. It means that he was physically not present at
the time of scene of offence by reason of his presence at another place. The burden of proving
alibi is on accused. A plea of alibi if raised at the earliest opportunity would receive great
credence. The accused must be so far away at the relevant time that he could not be away at the
place where the crime was committed. In criminal trial, defense of alibi is not generally accepted
unless backed by strong and solid evidence.

(b) Absence of accused at place where crime was committed


He must plead his presence elsewhere, at the time of the commission of alleged offence. When
the accused took the plea of alibi the burden of proof lies on him under section 103 of this Act. If
a person is charged with murder he is to prove that he was elsewhere. The plea of alibi has to be
taken at the earliest opportunity and it has to be proved to the satisfaction of the court.

(c) Covering of Entire time


It should be impossible for him to reach the place of occurrence at the time of commission of
offence. Therefore plea should be cover the whole time of the alleged offence.

(d) Raised at earliest opportunity


The plea of Alibi must be raised by accused at the earliest possible time.In the court when the
trial begins first thing the court ask is Whether at the time of offence accused was present at the
place of crime. If Accused is taking the plea of alibi he has to prove at the earliest that he was
elsewhere when the crime was committed.

Explanation of Plea of Alibi


Explain through following points

(a) Physical impossibility of accused


Plea of alibi can only be taken when such plea postulates physical impossibility of accuseds
presence at scene of offence due to his presence at some other place.

(b) Time to raise Plea of Alibi


Plea of alibi should be raised at the earliest time.

(c) Evidence to prove Plea of Alibi


Plea of alibi is considered the weakest type of plea. Therefore, cogent, convincing and plausible
evidence is needed to prove it. It reveals that plea of alibi should be supported by strong
evidence.

(d) Burden of Proof


Under Article 119, it is established rule of of evidence that burden of prove plea of alibi is on the
accused which is to be proved in accordance with law, and the plea fo alibi must be proved with
absolute certainty so as to completely exclude the presence of the person concerned at the time
when and the place where the incident took place.

(e) Quantum of Proof


The quantum of proof required to prove a plea of alibi various from case to case. Sometime the
accused taking plea of alibi need not to strictly prove meaning thereby more creation of doubt in
the mind of court is sufficient. But most cases the accused has to strictly prove his plea.18
(f) Absence and Presence
To prove his innocence against accusation, accused is required to raise reasonable question about
his absence in place of offence at time of commission of offence and about his presence in some
other place at such time. In this way, he is to raise reasonable doubt in mind of court about his
participation in commission of offence to get benefit of such doubt against accusation.

(g) Non access of Husband


Since legitimacy of a child implies a begetting by the husband. In order to prove illegitimacy it
would be relevant to prove, that the husband had no access to the wife at the probable time of
begetting.

(h) Consideration of whole Evidence


18 http://www.shareyouressays.com/120399/section-11-of-the-indian-evidence-act1872-2

In case of plea of alibi, court is considering the whole evidence to make any conclusion about
guilt or innocence of that accused, which makes plea of alibi

Nithari Verdict and Defense of Alibi


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. 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
defense of alibi. Therefore, the Special Judges dismissal of Pandhers 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.19
19 http://lawandotherthings.blogspot.in/2009/02/nithari-verdict-defence-of-alibi.html

Conclusion
The researcher came on this conclusion, that honorable Apex Courts have explained two
important principles about plea of alibi. Among these principles, one principle is that guilt cannot
be inferred from making of false plea of alibi. And other principle is that accused cannot take
benefit through plea of alibi when reasonable doubt is not created in mind of court about
accuseds participation in commission of offence. The researcher also found that Section 11 of
Indian Evidence Act 1872, does not speak about only Alibi but it also deal with the inconsistent
facts.

Bibliography
BOOKS

Batuklal Law of Evidence


V Krishnamachari Law of Evidence: Manohar Publications, 1987).
Lectures on The Indian Evidence ActJustice U.L. Bhat with a Foreword by Justice K.T.

Thomas
Law of Evidence H.K.Saharay & M.S.Saharay,2008

E-SOURCES

indiankanoon.org/doc/1188602
www.thehindu.com/.../binayak-sen-among-six-people-charged-with-seditio.
www.dnaindia.com/topic/cedric-prakash
http://www.countercurrents.org/gatade030608.htm.
indiankanoon.org/doc/111867
indiankanoon.org/doc/639296
www.thehindu.com Opinion Comment
www.epw.in/ejournal/term/1/_/taxonomy%3Aterm%3A10598
www.jus.unitn.it/users/toniatti/dircosteu/topics/aa0405/Choudhury.doc
www.law.cornell.edu/supremecourt/text/395/444
https://supreme.justia.com/cases/federal/us/354/298/case.htm

http://www.shareyouressays.com/120399/section-11-of-the-indian-evidence-act-1872-2
http://www.manupatrafast.in/ba/COMdispcom.aspx?nid=2341&nactcompid=15587