DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A. P., INDIA

PROJECT TITLE:
EFFECT OF FAILING TO PROVE THE PLEA OF ALIBI

SUBJECT:

LAW OF EVIDENCE

NAME OF THE FACULTY:

DR Nandini CP, B.A.L., LL.M., M.M.M., Ph.D.

Associate Professor

NAME OF THE CANDIDATE:

ALLU. SAI SARAYU

ROLL NO: 18LLB007

SEMESTER:5th

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 ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Dr. Nandini Cp
ma’am for giving me a golden opportunity to take up this project regarding the Effect of failing
to prove Plea of Alibi . I have tried my best to collect information about the project in various
possible ways to depict clear picture about the given project topic.

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INDEX:

1. INTRODUCTION .…………………………………………………………4
2. RESEARCH QUESTION…………………………………………………..4
3. OBJECTIVE OF THE STUDY…………………………………………….5
4. RESEARCH METHODOLOGY…………………………………………..5
5. SOURCES OF THE STUDY………………………………………………5
6. SIGNIFICANCE OF THE STUDY…………………………………………5
7. LITERATURE REVIEW……………………………………………………6
8. APPILICABILITY OF SECTIONS…………………………………………9
9. PLEA OF ALIBII…………………………………………………………….9
10. EFFECT OF FAILING TO PROVE PLEA OF ALIBI……………………10
11. CASE ANALYSIS…………………………………………………………….11
12. CONCLUSION………………………………………………………………..29
13. FINDINGS FROM THE RESEARCH………………………………………29
14. BIBLOGRAPHY………………………………………………………………30

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INTRODUCTION:-
Alibi is a Latin word, which means elsewhere. It is used when the accused takes the plea that
when the occurrence took place he was elsewhere. In such a situation the prosecution has to
discharge the burden satisfactorily. Once the prosecution is successful in discharging the burden
it is incumbent on the accused who takes the place of alibi to prove it with absolute certainly. An
alibi is not an exception envisaged in the IPC or any other law. It is a rule of evidence recognized
by Section 11 of the Evidence Act that facts inconsistent with fact in issue are relevant.
However it cannot be the sole link or sole circumstance to bare conviction. When one fact is
necessary to the hypothesis of the guilt of the accused, but strikingly absent in the chain of
circumstantial evidence, the prosecution case certainly will fail. Because, an alibi the relevancy
of which is totally inconsistence with hypothesis that the accused had committed an 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.
 plea of alibi must be taken as an uncontroverted fact, it is not a special defence changing the
presumption of innocence or reliving the date of its burden of proving the guilt of defendant.
Simply because the pleas of suicide and alibi have failed at the trial, no adverse inference can be
drawn against the appellant.
In case accused fails to prove that doesn’t help prosecution defence of alibi fails-Failure on the
part of accused to establish plea of alibi does not help the prosecution and it cannot be held that
the accused was present at the scene of occurrence, the prosecution must prove it by positive
evidence. The burden of proving the plea of alibi rests on the accused. But the failure to establish
the plea of alibi does not mean that the prosecution case stands proved.

RESEARCH QUESTION
1. What happens if the defendant didn’t prove the Plea of Alibi?
2. Is there any extension of punishment if defendant failed to prove the plea of alibi?
3. Can court give the judgment based on Plea of Alibi?
4. Can accused be directly held liable if he failed to prove the Pea of Alibi?

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OBJECTIVE OF THE STUDY :-
To understand the effects that the accused/ defendant will have in case he fail to prove the Plea
of alibi.
To understand the subject through contemporary judgments

RESEARCH METHODOLOGY :-
Doctrinal research includes :-
1. Descriptive study
2. Explanatory study
3. Analytical study
4. Comparative study

SOURCES OF STUDY:.
Primary source:- Indian Evidence Act 1872, Authorised Journals, Judgements, Procedural
Laws.
Secondary sources :- Ratanlal and Dhirajlal Law of Evidence, Articles and Sarkar’s law of
evidence, Abhinav Prakash Law of Evidence, Murphy on Evidence.

SIGNIFICANCE OF THE STUDY :-

Through this research :-
1. One can easily appreciate the applicability of procedure.
2. One can get the landmark latest judgements in this concept.

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LITERATURE REVIEW :-
[Author’s name], [Title of the article], [Journal Volume Number] [NAME OF THE JOURNAL
(abbreviated)] [Starting Page of the Article], [Pages Cited] [(Year)].

GEORGE J. FELDMAN, BOSTON UNIVERSITY LAW REVIEW, VOLUME XIV,

SYLVIA COHEN , CRIMINAL LAW – BURDEN OF PROVING ALIBI, 14 B.U.L REV.
428(1934)
From this Article we can say that burden of proving Alibi lies on the defendant. This was
decided by court, there were many cases discussed in this article which explains the burden of
proof of alibi any cost lies on the defendant and he is completely responsible to prove the same
i.e he is present some were else at the time of the crime and it is practically not possible to be in
the place by any chance. This article burden of proving an alibi in a criminal case rests upon the
person accused and to to maintain defence he must show facts and circumstances sufficient
when considered with the other evidences, to create in the minds of the jury a reasonable doubt
of his guilt
A survey of the cases indicated that there is conflict of authority as the burden of proving an
alibi. Some states hold that Plea of Alibi is an extrinsic defence, not arising out of res gestate. “
Miles v. State, 9 ga. 117, under this theory, the burden of proof rests upon the defendant. The
states however differ the quantum required.
So this article completely deals with different cases which have different judgment in
proving the alibi, also effect if failed in so

H. C. Underhill, ALIBI , XIII, Treatise on the Law of Criminal Evidence 284, 290
(1898)

This article is completely deals with ALIBI. Starting with the definition and character of
alibi- Burden of proof : the plea of an alibi is a plea of not guilty because at that instant of the
crime the accused was “ elsewhere” than where it was committed. It talks about the distance
and period of absence. The important and necessary fact that should be proved is the distance
between the scene of the crime and the prisoners where about, the time of the crime, as
compared with that of the alibi. It explains Relevancy of evidence. Impeaching the alibi- the
defendants decelerations. This article talks about the reasonable dought along with the
cautioning the jury as to evidence of alibi

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McMurtrie, R. C., AN ALIBI, , Vol. 2 Current Comment and Legal Miscellany, Issue
12 , pp. 750-752 (1890)
The plea of alibi flows from section 11 and is demonstrated by Illustration (a). Sarkar on
Evidence,1934 . states the word “alibi” is of Latin origin and means “elsewhere”. It is a
convenient term used for the defence 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 IPC 1860 or any other law. It is only a rule of evidence recognized in section 11 of the
IE Act, 1872 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 and would not be lessened by the mere fact that the accused had
adopted the defence 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 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. 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
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 defence of alibi. The burden of the accused is undoubtedly
heavy. This flows from section 103 of the IE Act, 1872 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 defence 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

Shantanu Chakrak, Alibi-A plea of an accused under the indian evidence act (2018)
This Article gives the basic details , clear analysis of Plea of Alibi
From this article we can understand what is Alibi, when to raise the Plea of Alibi, When the
defense of alibi fails - Failure on the part of accused to establish plea of alibi does not help

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 the prosecution and it cannot be held that the accused was present at the scene of occurrence,
the prosecution must prove it by positive evidence. Thus the mere failure on the part of the
accused to establish the plea of alibi, shall not lead to an inference that the accused was
present at the scene of occurrence., Essentials of Plea of Alibi, who may take Alibi, Sections
dealing with plea of Alibi, How can the plea of alibi divert the whole case It is true and
acceptable that the plea of alibi is not absolute with certainty. Sometimes it can amount to
false evidence thus creating a major suspicion against the accused. Negative impact of using
false Alibi, Is Alibi a good defence or not, along with tis few case laws were discussed.

Surbhi Kohli, Alibi - A Conundrum Between Prosecution And Accused ,21 March 2020
This article explains Plea of Alibi. Alibi is a maxim which means at another place. The word
"alibi" comes from Latin and its literal translation means "elsewhere". The Black's Law
Dictionary (8th ed. 2004) defines Alibi as "A defense based on the physical impossibility of a
defendant's guilt by placing the defendant in a location other than the scene of the crime at the
relevant time
It also talks about sections dealing under INDIAN EVIDENCE ACT, EARLIEST POSSIBLE
OPPORTUNITY The plea of alibi cannot be treated like a plea of self-defense. It is supposed to
be taken at the earliest possible opportunity/first instance which can either be at the stage of
framing of charge or at the preliminary hearing but not later than the stage of defense evidence5.
Plea of alibi raised by the accused will have a great credence if it is raised at the correct time - at
the earliest possible opportunity. BURDEN OF PROOF, In Nirmal Singh and Ors. vs. State of
Haryana, it was held that "The plea of alibi is a double-edged weapon. In case the accused fails
to prove the plea of alibi, his presence at the spot cannot be ruled out"
ALSO if the accused fails to prove his plea of alibi then such failure would result in the success
of the case of the prosecution as the prosecution will have to prove his case independently
beyond reasonable doubt. If the accused succeeds in proving his plea of alibi beyond certainty,
he will be acquitted. What happens if accused raises false plea of alibi is also discussed with a
case law

Cases:

 Prabulal v State of Rajasthan

 Talley v. State,
 Sri Chand v. State of Punjab
 SOMA BHAI Vs. State of Gujarat
 State Of Haryana vs Sher Singh & Ors
 Suman Nama S/o Nimai Nama v State of Tripura

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APPLICIBILITY OF SECTIONS:

S.11, S.103 and S.105 of the Indian Evidence Act, 1872

S.11.: When facts not otherwise relevant become relevant:

Facts not in any case pertinent are applicable:
(1) If they are conflicting with any reality in issue or significant truth;
(2) If without anyone else or regarding different realities they make the presence or non-
presence of any reality in issue or significant actuality profoundly likely or impossible.

S.103.: Burden of proof as to particular fact:

The weight of confirmation concerning a specific reality lies on that individual who wishes the
Court to trust in its reality except if it is given by any law that the verification of that reality will
lie on a specific individual.

S.105. : Burden of proving that case of accused comes within exceptions:

When an individual is blamed for any offense, the weight of demonstrating the presence of
conditions bringing the case inside any of the General Exceptions in the Indian Penal Code (45
of 1860), or inside any extraordinary special cases or stipulation contained in some other piece of
a similar Code, or in any law characterizing the offense, has arrived, and the Court will assume
the nonappearance of such conditions.

PLEA OF ALIBI
Of all kinds of exculpation, the defence of an alibi, if clearly established by unsuspected
testimony, is the most satisfactory and conclusive. ‘It must be admitted’, says Sir Michael Foster
If the plea of Alibi taken by the Accused found to be false, the case against him becomes
stronger.
Sometimes an accused person pleads alibi and asserts before an I.O. that he was at some other
place than the place occurrence and as such he was innocent. In order to arrive at truth, it is the
duty of the I.O. to test the veracity of his statement. He should not throw it away but try to
disprove it during the investigation, if it is not true, so that the prosecutor can avail of the
material during the judicial proceedings.
An I.O. should see that there are convicting reasons that accused took part in the occurrence and
if he comes to the similar finding, he should collect such evidence so that defence of alibi, set up

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before him, completely breaks down. It was held in Sarat Chandar vs. Emp. 1934 Cal. 719 that
whenever a defence of alibi is set up and that utterly breaks down, it is strong inference, that if
the prisoner was not in fact where he says he was then in all probability, he was where the
prosecution says he was. It is there to provide strength of the prosecution case in this case,
followed in 1971 Cr. L.J. 1764 (Punjab).
Sometimes the version of the prosecution showing the participation of the accused in the crime
and version of the accused proving alibi is evenly balanced i.e. there are convincing reasons that
both are true. In such cases an I.O. should not feel satisfied by saying that it should be left to the
Court to decide as to what action the Court should take. He must find some weakness somewhere
as the two cannot be true. The field of an I.O. is very vast. He has greater resources at his hand
and explore more avenues to arrive at truth. The sphere of the Court is not wide.
It is, however, always better to place such cases in the Courts and the discretion should be left to
Court to exercise it judicially. The I.O. should not give the benefit of such a thing to the accused
if these versions are evenly balanced and one is not preposterously false and wrong. These points
are amply illustrated by the following two cases.
I. It was held in Suraj Bakash Singh vs. Emp. 1933 Oudh 369 that “The reason for not believing
the alibi of these three men is that there is convincing evidence that they took part in the crime. It
need hardly be said, where there is satisfactory evidence that a man committed a crime at a
certain place and at a certain time, a Court will never find any difficulty in rejecting an alibi, he
may seek to establish even if that alibi is supported by what on the surface would appear to be
satisfactory evidence.”
II. This aspect of the case was also deal in Sheo Shanker vs. State, 1953 Cr. L.J. 1400 (All.) and
it illustrates the point as to why it should be left to Court, “We do not take it to mean that if the
alibi evidence be good and no weakness is directed by the Court in it, it must, be given “go by” if
the Court comes to know of no weakness in the prosecution evidence. The two cannot be true
and the weakness must be found somewhere, however, difficult it might be. If the Court fails to
find any weakness in either, we are of the view that the benefit of such a failure must go to the
accused because a well-established alibi must be sufficient to show that the prosecution
witnesses were not speaking the truth or at least to throw doubt upon their truthfulness.”

that mere alibi evidence lieth under a great and general prejudice, and ought to be heard with
uncommon caution; but, if it appeareth to be founded on truth, it is the best negative evidence
that can be offered; it is really positive which in the nature of things necessarily implieth a
negative; and in many cases, it is the only evidence an innocent man can offer.

EFFECT OF FAILING TO PROVE THE PLEA OF ALIBI

Where the plea of alibi by the accused fails, there is a strong presumption that the accused was
present at the place where the prosecution alleges him to be. The theory of an alibi is that the fact
of presence elsewhere is essentially inconsistent with presence at the place and time alleged, and

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therefore, with personal participation in the act. 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 when the crime was
committed.

Simply because the pleas of suicide and alibi have failed at the trial, no adverse inference can be
drawn against the appellant.

The burden of proving the plea of alibi rests on the accused. But the failure to establish the plea
of alibi does not mean that the prosecution case stands proved. Thus, in a murder case, where it
was pointed out during the hearing of appeal against acquittal that the respondents took a plea
of alibi before the trial Court but the said plea was rejected, it was held that the prosecution
cannot take advantage of the rejection of the plea of alibi. Prosecution has to stand on its own
legs.

It is well-settled that a plea of alibi, if raised by an accused, is required to be proved by him by

cogent and satisfactory evidence, so as to completely exclude the possibility of the presence of
the accused at the place of occurrence at the relevant time.

CASE ANALYSIS:

CASE TITLE and CITATION:

State Of Haryana vs Sher Singh & Ors and 1981 AIR 1021; 1981 SCR (3)1

SCOPE/CHAPTER (OF INDIAN EVIDENCE ACT, 1872)

Section 103 in The Indian Evidence Act, 1872

103. Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on
that person who wishes the Court to believe in its existence, unless it is provided by any law that
the proof of that fact shall lie on any particular person.
Illustration
A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must
prove the admission. B wishes the Court to believe that, at the time in question, he was
elsewhere. He must prove it. COMMENTS Plea of alibi Plea of alibi taken by accused, it is he
who has to prove it;

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Provision/s of law/s applied in the case :
Code of Criminal Procedure 1973, S. 154, Indian Penal Code 1860, S. 302 and Indian
Evidence Act 1872, S. 103-Trial for murder-Accused convicted for murder by Sessions Court-
Acquittal by High Court-Interference by Supreme Court- Whether F.I.R. to contain details of
the occurrence- Prosecution whether bound to prove motive-Burden of proof of alibi whether
on the accused.
CASES REFERRED
Govt. of NCT of Delhi & ors. v D Sharma
Under Section 103, Indian Evidence Act, 1872, the burden of proof to prove the absence of the
respondent lies on the petitioner.
Ritesh Chakarvarti v. State of M.P
Under Section 103 of the Indian Evidence Act, Plea of alibi by way of defence stands on a
different footing. As and when such a defence is raised, ordinarily other defences are given up.
Despite the provisions of Section 103 of the Indian Evidence Act, even if alibi is not proved, the
prosecution cannot rest its case only in terms thereof. In other words, even if an alibi is not
proved, the court shall not record a judgment of conviction unless the prosecution is found to
have established its case.

BRIEF FACTS ABOUT THE CASE :

The two deceased were the two younger half brothers of the first respondent. A day before the
day of the murder of the two deceased, the brothers had divided the family properties and started
living separately. P.W. 3, the wife of one of the deceased, in the F.I.R. given to the police,
stated that on the day of the occurrence when the two deceased and she went to the bagichi
for milking the cattle, the first respondent and his sons surrounded the two
deceased in the court-yard, the first respondent dealt a blow on the head of her husband
with a gandasi while the others gave lathi blow on the second deceased. Both of them succumbed
to the injuries. It was also stated in the F.I.R. that P.W. 4, the sister of the deceased, was with
her at the time of the occurrence and that when they screamed, the assailants asked them
to keep quiet on pain of death to them. The assailants, it was alleged, thereafter dragged the
two dead bodies and burnt them in the nearby heap of cow-dung cakes after pouring kerosene
on the heap. The defence of the two accused was alibi.

Preliminary Issues (or) Issues raised/framed and adjudged (before trial court) (or)
Question of law involved (or) Points for determination
Whether Danna and Hukmi were murdered and their dead bodies were burnt by the respondents
as alleged by the prosecution.

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Judgement and order:
1. When an accused pleads alibi, the burden of proof under section 103 of the Evidence Act
is on the accused. The plea of all the accused that they were elsewhere at the time of the
offence is not true.
2. The guilt of the two respondents had ben established beyond all reasonable doubt. The High
Court rejected the evidence of P.W. 10 on the ground that he had not stated in the statement
before the police that in the partition of the family properties among the brothers, there was a
hitch. The prosecution is not bound to prove motive of any offence in a criminal case, for motive
is known only to the perpetrators of the crime and may not be known to others. If the
motive is proved by the prosecution, the Court has to consider it and see whether it is
adequate.
3. The High Court had taken a wrong view in rejecting the evidence of P.Ws. 3 and 4 on the
ground that they were close relations of the deceased; that it was highly improbable that
P.W. 3 who was in advance stage of pregnancy would go to the place of occurrence.
4. The fact that P.W. 3 did not mention in the F.I.R. that she had informed some persons of the
village before the lodging of the F.I.R. and that for this reason her statement could not be relied
on is not correct. The F.I.R. need not contain all details of the occurrence nor does the omission
to mention the name of persons whom she informed in the village detract from the credibility
of the report. The omission is a mere omission of details and not a contradiction.

Ratio decidendi and obitor dicta

 Evidence of P.Ws. 3 and 4 were rejected on the ground (a) that they were close relations
of the two deceased (b) It was highly improbable and unnatural that PW 3 would go to
the place of occurrence from her home when she was in advance pregnancy
 TheHigh Court found that "most probably both Smt. Nariman and Danni were not present
on the spot and had not witnessed the occurrence."
 The High Court has observed that it was unlikely that P.W. 3 would go to the Bagichi in
such an advance stage of pregnancy in order to bring milk from there at sun rise in as
much as P.W. 4 had already come there to help her in domestic work.

13
Observations
When an accused pleads alibi, the burden is on him to prove it under Section 103 of the
Evidence Act.
The learned High Court has taken a very unrealistic view of the situation and of the facts and
circumstances of the case. There is no evidence that P.Ws 3 and 4 could or did raise any alarm.
When they were about to scream they were threatened on pain of murder, to keep quiet and sit.
There is evidence that both the deceased as well as P.Ws 3 and 4 were unarmed, whereas the
respondents were armed with dangerous weapons.
The prosecution is not bound to prove motive of any offence in a criminal case, in as much
as motive is known only to the perpetrator of the crime and may not be known to others. If the
motive is proved by prosecution, the Court has to consider it and see whether it is adequate. In
the instant case the motive proved was apparently inadequate, although it might be possibility.

---------------------------------------------------------------------------------------------------------------------

Case Title:

SOMA BHAI Vs. State of Gujarat

Citation : (1975) 4 SCC 257

Topic:

Plea of Alibi was used in this case

Chapter

Chapter 2 – of the relevancy of facts , section 11 OF INDIAN EVIDENCE ACT,1872.

Provisions Applied

 Sections 302, 303 and 201 I.P.C,  Sections 25(1)(a) and 27 of the Indian Arms Act,1959,

Section 154, section 162 of CrPC , Section 11 of IEA,1872.

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Brief Facts :

This case illustrates what disastrous consequences smuggling activities can some times lead to.
In the instant case the precious life of a person has been lost and another person has been
seriously injured because the accused is alleged to have entertained a serious apprehension that
secrets of his smuggling activities would be revealed by one of the injured persons. The deceased
Chhania Dhana however appears to have suffered merely because of his innocent intervention in
the altercation between the appellant and Naran Kala the injured person.

Preliminary Issues

1. Whether The FIR lodged by Ratilal Deva was inadmissible in evidence

2. Secondly the High Court relied on a complaint made by the accused before the police
during the course of investigation which constituted his defence before the police. The
Sessions Judge held that this report was admissible in evidence as it was not hit by
Section 162 of the CrPC, but held it to have been given under duress. The High Court
has. however, held that as the complaint was regarding a different matter it was not hit by
Section 162 of the Code and was clearly admissible in evidence and accordingly the
statements made in this document have been used by the High Court in its judgment.
Whether the Stance taken by the HC was right or not .

Order

It is well settled that a plea of alibi has got to be proved to the satisfaction of the Court. In the
instant case there is absolutely no evidence to show that the accused' could ever have reached
Surat at 9 P.M. Even in his statement made under Section 342 of the CrPC while he says that he
went to .Nausari Bazar Police Chowky at Surat he does not say that he had reached Surat at 9
P.M. According to his statement on February 20, 1971, at about 8 P.M. he was in his shop at
Dandi when he came to know from certain persons that there was an altercation between Makan
Dita. Dita Lala and others on the one side and Chhania Dhana,. Naran Kala and others on the
other near the house of Mitha Bava. Thereafter he started in jeep car with his driver. He does not
state in his statement as to when and at what time he left Dandi for Surat. In these circumstances,

15
therefore, there is absolutely no legal evidence to prove that he ever reached Surat at about 9
P.M. or before that. On the other hand there is categorical evidence of witness Rijhsinghani that
he had met him at 10 P.M. If this was so, then there was ample time for the accused to have fired
at the deceased and Naran and then proceeded to Surat.

Ratio Decidenditi

In the instant case, the complainant had made the report regarding the occurrence having taken
place to the P.S. I. Patel, who. however, before reducing it into writing, by way of abundant
caution, tried to seek further instructions from the main Police Station at Surat and that is why he
had booked a call to Surat. The message given to the Surat Police Station was too cryptic to
constitute a first information report within the meaning of Section 154 of the Code and was
meant to be only for the purpose of getting further instructions. Furthermore, the facts narrated to
the P.S. I. Patel which were reduced into writing a few minutes later undoubtedly constituted the
first information report in point of time made to the police in which necessary facts were given.
In these circumstances, therefore, we are clearly of the opinion that the telephonic message to the
Police Station at Surat cannot constitute the F.I.R. and the High Court was in error in treating the
F.I.R. lodged in the present case as inadmissible in evidence.

However despite this the HC was right in its perusal of the judgment of the Sessions Court as it
reveals that it has fully considered all the reasons given by the learned Sessions Judge as also the
circumstances relied upon by him and after displacing the circumstances it has overruled the
reasons on cogent grounds.

Observation:

From this case considering the topic we are discussing the defendant was not able to prove the
PLEA OF ABILI. This did not effect the defendant in any extra punishment. It does make the
accused convicted. The proceedings still contiousnes in normal steps. It only made sure that the
person was there at the time when crime is happening. So even though the plea of Alibi was
failed he does get that effected basing the punishment, but this just informs his presences

16
TITLE:

Sri Chand v. State of Punjab

CITATION: (2014) 10 SCC 293 : (2015) 1 SCC (Cri) 96 : 2014 SCC OnLine SC 747

TOPIC:

PLEA OF ALIBI NOT PROVEN ( EFFECT)

Chapter

Chapter 2 – of the relevancy of facts , section 11 OF INDIAN EVIDENCE ACT,1872.

Provision :-

THE INDIAN PENAL CODE , 1860 , section 304B - dowry death , section 308 - Attempt to
commit culpable homicide , section 498 A - Husband or relative of husband of a women
subjecting her to cruelty.
SECTION 11 OF INDIAN EVIDENCE ACT,

Case Referred:
[Jaswant Lal v. State of Punjab, CRA No. 1044 of 1998, decided on 24-9-2008 (P&H)]

Brief facts:
Harpal Kaurthe deceased was the daughter of Tarsem Lal, resident of Durgapur, she was
married to Jaswant lal. The in-laws started harassing the deceased for dowry, she said about the
harassment to her father. After two months of marriage tarseem got news that her daughter is
lying burt in matrimonial house. When Tarsem along with panchayat member went there he
could not find any in laws in their house, but Harpal was found in kitchen burnt. Theres also a
kerosene bottle. She was completely burnt and dead. Tarsem remembering about the
conversations with her daughter before came to conclusion that In- laws killed her daughter by
pouring kerosin .

The offence was notified to the police by tarsem lal in presence of Daya Singh
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Points for determination

A young girl had been killed in most brutal and in human manner within few months of her
marriage.

After putting deceased on death the appellants fled away from the spot without informing any
one

Also it was specifically sated by deceased parents that she was subjected to cruelties at the hands
of accused persons for bringing insuffient dowry.

JUDGMENT:

No evidence that deceased and her husband were separated in ness amd residence from parents
in law, hence , conviction of appellant , confirmed.

Grounds of appeal :

Trail courts judgment leads to the appeal at high court where High Court after hearing the
learned counsel on each side allowed only appeal of Nachhatar Lal and dismissed The other
Appeal.

After this Special Leave Petition was filed under Article 136 of the constitution

Judgement and order :-

HIGH COURTS OBSERVATION:

"I. Harpal Kaur (vale of Jaswant Lal and daughter-in-law of Sri Chand and Darshan

Kaur, appellants) died an unnatural death within few months of her marriage:

2. The appellants are not even averred to have intimated death of Harpal Kaur to members of her
natal family,
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3. The appellants were found missing from their house when Tarsem Lal, father of the deceased
lady. Daya Singh, member, Panchayat and Gurmukh Singh, Investigating Officer went over there

, 4. The appellants are not even proved to have been present at the time inquest proceedings were
held and the post mortem examination of dead body of Harpal Kaur was conducted."

Accused were convected

At special leave petition:

we do not find any reason to interfere with the decision of the High Court. The criminal appeal
is accordingly dismissed and the bail bonds of the appellant-accused stand cancelled. They shall
surrender forthwith to serve out the remaining period of the sentence, failing which, the trial
court is directed to take appropriate steps for sending them to prison to undergo the remaining
period of sentence.

RATIO DECENDITI:

The appellants are not even proved to have been present at the time inquest proceedings were
held and the post mortem examination of dead body of Harpal Kaur was conducted."

Furthermore, plea of living separately stood falsified by the rough site plan prepared by the
police official concerned, wherein the place of occurrence has been shown to be the kitchen of
the appellant Sri Chand (father-in-law of the deceased).

Case comment/ observations

In this case The plea of Alibi was made a point only by the father in law of the deceased, that he
is working in sugar factory and he was not in home, but he never tried to prove the same, he can
prove it by producing the attendance as evidence but he did not, where as his wife the mother-in-
law of the deceased did not even appeal under plea of alibi . hear in both situations plea of alibi
did nothing. They failed in proving the people of alibi, and it didn’t effect anything much, if they
proved it the accused used to get at least benefit of dought, but this didn’t show any effect on the
prosecution of the case to move any further.

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Title of the case:

Suman Nama S/o Nimai Nama v State of Tripura

Citation of the case:

2019 Indlaw TRI 18; 2019 CRLJ 3098

Relevant topic of my study discussed in the case:

Plea of ‘Alibi’. It is a rule of evidence recognized by Section 11 of the Evidence Act that facts
inconsistent with fact in issue are relevant.

Chapter of Indian Evidence Act:

Chapter 2 of The Indian Evidence Act, which talks about the relevancy of facts.

Provisions of law applied in the case: Section 302 of IPC, Sections 313, 173(2), 428 of Cr.p.c

Cases referred: State of Maharashtra vs. Ashok Chotelal Shukla1

Brief facts of the case:

The first information report was lodged to the officer-in-charge of Manubazar P.S. by one
Ratan Sarkar (PW11), under Section 302/34 of the IPC. Ratan Sarkar has alleged that his niece
namely, Reshmi Datta (Nama) was married to Suman (accused). In their wedlock, one male
child was born. On unlawful demand, his niece was subjected to physical and mental torture. His
niece visited his house 7-8 days prior to her death. At that time, she had complained that in their
rented house in every night she was subjected to torture, even the appellant had tried to
strangulate her. After having the news of death, he lodged the information.

After the said case was registered, investigation ensued and on completion of investigation,
police report under Section 173(2) of the Cr.p.c was filed and the Sessions Judge framed the
charge, under Section 302 of the IPC.

1
(1997) 11 SCC 26

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 In order to prove the accused guilty, the prosecution has examined 17 witnesses and
introduced 4 documentary evidence including post-mortem report and inquest report. The
accused has adduced one witness to establish his specific plea of Alibi.

Issues of the case:

 Whether the specific plea of Alibi by the accused is valid or not?

 Whether the evidences presented by both prosecution and the defence, were properly
appreciated by the court of law?

Judgement:

Having appreciated the evidence, the Trial Court observed that the accused was present at
the time of incident and he alone has committed the murder of his wife. The accused has been
sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/- with default
stipulation.

According to the trial court, there is a chain of circumstances and from the circumstances it
has been cogently established that the appellant committed the murder of his wife, the niece of
the informant and hence the appellant has been convicted.

Grounds of appeal:

The counsel for the appellant (Suman) stated that the plea of Alibi by the appellant was not
properly appreciated by the Trial Court. he further submitted that there is no evidence against the
appellant. According to him, nobody has seen the appellant in the premises after the afternoon as
he was elsewhere meaning in the house of DW1, Dulal Nama for worshipping goddess Kali.
Further the counsel has relied on a decision of the Apex court in State of Maharashtra vs.
Ashok Chotelal Shukla2, where it was observed that, there is no need for the accused to speak
when he chooses not to, and no adverse inference can be drawn from it against him.

The counsel for state from the other side, asserted that the appellant was present in the house
at the time of incident and this is his design to shift his son to his father’s house the before day to

2
(1997) 11 SCC 26 

21
raise the plea of Alibi to get himself out of suspicion in the present case, but the circumstantial
evidence was well established in the trial court regarding his presence.

Judgement and order:

The appeal was allowed. Accordingly, the Trial court’s judgment and order of conviction and
sentence were set aside on benefit of doubt.

Ratio Decidendi:

For the purpose of appreciation, the appellate court has surveyed the evidence as recorded in the
trial of all the 17 prosecution witnesses and 1 defence witness. It was observed that the post-
mortem report and the inquest report were in conflict, but the prosecution couldn’t explain this
dichotomy. Also, except PW5, nobody has stated that the appellant was present in the house at
the time of murder. Thus, if the prosecution has failed to prove the presence of the accused in the
place of occurrence, the accused is not required to provide any plausible explanation in respect of
his presence.

Obiter dicta: Generally, in the criminal cases, the prosecution have the burden of proof to prove
that the accused was present at the crime scene and took part in it. It would not be lessened on
the mere fact that the accused pleads Alibi. If prosecution has established their case
satisfactorily, the defendant has to prove it with absolute certainty that he was not present at the
place of occurrence. It follows therefore that strict proof is required for establishing the plea of
Alibi.

Observation:

When presence of the accused at the scene of occurrence is established satisfactorily by the
prosecution through reliable evidence, it was observed in the present case, that the court would
be slow to believe any counter-narrative 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 reasonable
doubt. For that purpose, it would be difficult for the accused to establish his plea of Alibi.

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Case Title:

Prabulal v State of Rajasthan

Citation:

(1976) 1 SCC 665

Topic of the the study:

Effect of failing to prove plea of alibi

CHAPTER:

Chapter 2 – of the relevancy of facts , section 11 OF INDIAN EVIDENCE ACT,1872.

Procedures involved

Essential Commodities Act, 1955- Section 3 and 7

Cr.P. C. ,1973 Section 378, and 386

Evidence act , 1872 – Section 11- Plea of Alibi

Brief Facts:

The present appellant is was acting on behalf of a firm M/s Dhanalal Shankarlal and has filed an
application to the collector for transportation of 60 rice bags from Kanera to Chittorgarh. To pass
through these two places, one has to pass from Madhya Pradesh and since there was a restriction
on the transportation of food grains from one part of Rajasthan to another, they are required to
obtain permission for any transportation within Rajasthan and here the collector of Chittorgarh
for transporting 60 bags of rice on June 8th, 1965 within fifteen days from the date of permission.

The State has alleged that permit application was tampered and the word “rice” has been
replaced with the word “wheat” and have also altered the date of permit from 8-6-1965 to 18-6-
1965 fraudulently and dishonestly. On 25th June 1965 they have loaded the truck with 60 wheat
bags and started from Kanera and in between there was a check post where the two police
constables have made a check and driver has signed that the truck was carrying 60 wheat bags

23
and the truck proceeded further, when the truck had to reach the next check post it did not reach
there and has diverted its truck to another small village near Madhya Pradesh and has unloaded
its truck in that village. In the inquiry it was found that the truck has not crossed the Nambahera
post and has reached Chittorgarh. The whole transportation was in contravention to clause (3) of
Inter State Wheat and Wheat Product (Movement Control) Order, 1964 made by the Central
government in the exercise of its power under Section 3 of Essential Commodities Act. The
police conducted an investigation and have filed a charge sheet under Section 3 read with
Section 7 of Essential Commodities Act.

Sub-Divisional Magistrate, Chittorgarh has acquitted Khaju Khan and this acquittal was upheld
by High Court and now in the present appeal is regarding the Prabulal

Contention of the appellate petitioner

He contends that he has nothing to do with the transport of the truck and was not in the truck
during transportation and he pleaded alibi that he was attending a meeting at Panchayat from
8am to 5pm on the day where goods were transported. He contends that he was falsely involved
in the present case.

Decision of Lower Court

The Magistrate has found discrepancies in the prosecution case and defence successfully
established the plea of alibi and based on this, The Magistrate has acquitted the present appellant.

Against this decision of lower court, the state has appealed to High Court of Rajasthan

High Court

The High Court has analyzed the evidence and that evidence has proved beyond the reasonable
doubt and appellant was closely connected with the firm and it was he who transported the truck
with the driver Khaj Khan. The High Court has set aside the order of acquittal and has convicted
the petitioner under Section 3 read with Section 7 of Essential Commodities Act and has
imposed a penalty on him with a fine or Rs.500 or an imprisonment for one month.

Against this order of acquittal the petitioner has appealed to Supreme Court and before Supreme
Court 60 bags of wheat were loaded at the instance of the appellant and the prosecution in its
cross examination of Chotte Khan, a Coolie that the appellant was present during loading of

24
wheat trucks and during transportation they did not come across any check post in Madhya
Pradesh. The appellant contended that since coolie was illiterate, he must have forgotten about
that check post

Grounds for appeal:

Against the order of conviction they appealed

Judgment

Since the defense was not successful in establishing its plea of alibi and the prosecution has
proved its case beyond reasonable doubt. The court held that High Court was correct is setting
aside the acquittal order of the lower court.

Order

The appellant shall be convicted under Section 3 read with Section 7 of Essential Commodities
Act for transporting 60 bags of wheat in contravention to clause (3) of Wheat Movement Order.

The appeal was accordingly dismissed and the ordered the appellant to surrender his bail.

Ratio Decidendii

in this case there is a plea of alibi taken then the burden is on them to prove thier plea.

Observation

Baes on the facts and evidences placed before the court, the court has observed that appellant
was responsible for loading 60 wheat bags into the truck. And the permit exhibit which was
signed by the truck driver and the appellant as Shankarlal and in the Test Identification Parade,
the court observed that there was correct identification of the appellant. All these evidences show
that case was established by the prosecution beyond reasonable doubt and even the plea of alibi
by the appellant has not been successfully proved as out of three defence witness, one of the
defence witness has not stated that the present appellant was in the Panchayat during the day on
which transportation of goods took place.

25
Case Title

Talley v. State,

Citation:

36 So. 2d 201 (Fla. 1948)

Topic of the study and the same that is presently discussed in the case:

Effect of failing to prove the plea of alibi

Chapter:

Chapter 2 – of the relevancy of facts , section 11 OF INDIAN EVIDENCE ACT,1872.

Provisions of law applied in the case:

Discussed about the defence of Alibi, admissibility of statements given by the witness, which
gives information relating to commission of collateral offences.

Cases Referred:

1. Coston vs State 139 Fla. 250, 190 So. 520

2. Ryan v. State, 83 Fla. 610, 92 So. 571;

3. Wallace v. State,41 Fla. 547, 26 So. 713;

4. Killins v. State, 28 Fla. 313, 9 So. 711;

5. Thomas v. State, 132 Fla. 78, 181 So. 337;

6. Kennedy v. State, 140 Fla. 125, 191 So. 193.

7. Robinson v. State, 243 Ala. 684, 11 So. 2d 732;

8. Daniels v. State,243 Ala. 675, 11 So. 2d 756;

9. Barnett v. State of Ohio, 104 Ohio 298, 135 N.E. 647, 27 A.L.R. 351;

26
 10. Merritt v. State of Georgia,168 Ga. 753, 149 S.E. 46.

11. Crosby v. State, 90 Fla. 381, 106 So. 741,

12. Haddock v. State, 121 Fla. 167, 163 So. 482.

Brief facts of the case:

That the Appellant herein was the accused, for the alleged commission of sexual offence of
rape against the Prosecutrix. That the accused allegedly drove a 1939 model Chevrolet truck near
the house of the victim, while she was feeding her baby in her lawn/balcony. The accused then
asked her for some water, enquired about her husband, asked about the nearby route to some
other place. Finally, the accused unveiled his intention to commit the offence against the victim
after brief talk with her. He forcefully dragged her in to the house, and committed sexual
intercourse against her will. The accused was later arrested by the policeman of Jacksonville
county.

The case of accused was that he was not present at the scene of alleged crime and pleaded
alibi. Further, he contended that he was not having a moustache on the day of commission of
alleged offence, whereas the photographs submitted by the police that were taken on the day of
arrest suggests otherwise.

In the statements given by several Prosecution Witnesses, the commission of collateral offence
by the accused came to light. The counsel for the appellant argued that the statements of the PWs
could not be made admissible since the law of evidence disregards the admission of statements
that relates to the commission of past offences, that were not on trial. The State argued that the
information relating to the commission of collateral offences is admissible since the statements
highlights the character of the accused, which projects to the intent/malice. Hence the court was
required to decide the following issue that was raised.

Preliminary Issue involved:

Whether evidence of collateral offenses is admissible on the trial of the main charge to prove
intent?

Judgement:

27
Ruled against the Appellant and affirmed the judgment of Trial Court.

Grounds of Appeal:

That the counsel for the appellant argued that evidence of collateral offenses is inadmissible on
the trial of the main charge to prove intent since the law of evidence made it inadmissible to take
account or accept the information/statements which brings to light about the commission of
collateral offence in to the trial of main charge.

Judgment or Order:

The court relied on Wharton’s Criminal Evidence, Vol. 1 (11th Ed.), while deciding the issue. It
opined that “To be admissible as relevant, such offenses need not be exactly concurrent. If they
are within such time or show such relation to the main charge as to make connections obvious,
such offenses are admissible to show intent. Evidence of collateral offenses which is inseparably
interwoven with the offense charged and which also show intent is admissible”. Plea of Alibi
was not proved successfully by the appellant. Hence, the plea is rejected and the appeal is
decided in negative to the appellant.

Ratio Decedendi:

“Evidence of other crimes may be admitted when it tends to establish a common scheme or plan
embracing the commission of a series of crimes so related to each other that proof of one tends to
prove the other, and to show the defendant's guilt of the crime charged. Subsequent as well as
prior collateral offenses can be put in evidence and from such system, identity or intent can often
be shown. Like crimes, committed against the same class of persons, at about the same time, tend
to show the same general design and evidence of the same as relevant and may lead to proof of
identity.”

Comment:

The present case rightly appraised about the admissibility of evidence, when the statements of
the Witness reveals the commission of collateral evidences. Even though the law does not admit

28
the statements which reveal about the commission of collateral crimes, certain exceptions were
laid down in this case.

CONCLUSION

To sum up, it can be reiterated that merely because the plea of alibi has been taken by the
accused, the same in no way reduces the possibility of the accused having committed the crime
or dispenses with the burden of proof on the accused to prove his alibi. The accused must prove
his plea of alibi beyond any reasonable doubt and with strong evidence in support. Only then it
will be accepted by the court in a criminal trial. Needless to say, that the prosecution will have to
independently prove that the accused has committed the offence because as per the law in India,
an accused is generally "presumed innocent until proved guilty". Thus, it is not necessary for the
accused to raise the plea of alibi until and unless the prosecution has discharged his burden of
proving the accused guilty. If the prosecution has failed to prove the guilt of the accused beyond
reasonable doubt, then it will not be important for the accused to prove his defense of the plea of
alibi. But if the prosecution has discharged his burden then it is important for the accused to
prove his plea of alibi for proving the fact that he wasn't present at the place where the crime was
committed. Ultimately, it will be on the court to measure who has more weightage - the
prosecution side in proving the guilt or the defense side in proving the innocence of the accused.
There is always more burden on the accused to prove his innocence through the defense raised
by him. If the accused succeeds in proving only a part of his defense, court will shift its
inclination in favor of the accused.

RESEARCH FINDINGS:

When Plea of Alibi if made the accused has the burden to prove it, but if he fails to do so the
case can’t be decided, it still continues the prosecution.it does not show much effect on the
proceeding. It only makes sure that the accused was there at the crime scene but not anywhere
else

There will be no extra or extension of punishment if the proving of the alibi has failed

29
No court cannot pass the judgment basing on the plea of Alibi. Its just a plea if succeed gives a
benefit of dough, but if failed case cant be decided on basis of it.

BIBLIOGRAPHY:-

BOOKS:-

• SARKAR, LAW OF EVIDENCE (17TH ED., 2010)

• WOODROFFE AND AMIR ALI, LAW OF EVIDENCE (20TH ED., 2017)

• RATANLAL AND DHIJRAJLAL, LAW OF EVIDENCE (29TH ED., 2019).

ONLINE SOURCES:-
• www.scconline.com

• www.westlaw.in

• www.heinonline.com

• www.manupatra.com

ARTICLES:

 Surbhi Kohli, Alibi - A Conundrum Between Prosecution And Accused ,21 March 2020
 Shantanu Chakrak, Alibi-A plea of an accused under the indian evidence act (2018)
 McMurtrie, R. C., AN ALIBI, , Vol. 2 Current Comment and Legal Miscellany, Issue
12 , pp. 750-752 (1890)
 H. C. Underhill, ALIBI , XIII, Treatise on the Law of Criminal Evidence 284, 290
(1898)
 GEORGE J. FELDMAN, BOSTON UNIVERSITY LAW REVIEW, VOLUME XIV,
SYLVIA COHEN , CRIMINAL LAW – BURDEN OF PROVING ALIBI, 14 B.U.L
REV. 428(1934)

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STATUTES:- THE INDIAN EVIDENCE ACT, 1872

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