NATIONAL LAW INSTITUTE

UNIVERSITY
BHOPAL,M.P.

A Project Of Evidence Law-1

On The Topic
“Plea Of Alibi”

Submitted to, Submitted by,

Prof.Vijay kumar Singh Ajita Nadkarni
2012 BA LLB 101
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 Acknowledgement
With my highest respect and gratitude I would take this opportunity to acknowledge the role
played by the people who helped me compile this project.Firstly I would like to thank my
parents ,who have always supported me in all my endeavours.Then I would like to thank
Vijay Kumar Singh Sir ,who guided me to make this project and who motivated me to
research well on my project topic.These people were instrumental in the framing of this
project,without whose guidance ,this project would be incomplete.

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 Table Of Contents

Topic Page No:

1.An introduction to section 11........................................................................................4

2.Illustrations to section 11..............................................................................................4

3.An introduction to section 103......................................................................................4

4.Illustrations and comments on section 103..................................................................4-5

5.Defining plea of alibi....................................................................................................5-6

6.An analysis of section 11 and plea of alibi...................................................................6-7

7.International perceptions of plea of alibi......................................................................7-9

8.Leading Indian cases on plea of alibi...........................................................................10-11

9.Conclusion:Relevance and effectiveness of plea of alibi...............................................11

10.Bibliography...............................................................................................................11-12

An Introduction :Section 11 Of The Indian Evidence Act,1872

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Section 11 : Inconsistent, highly probable or improbable facts-

Facts not otherwise relevant, are relevant, —

(a) If they are inconsistent with any fact in issue or relevant fact; or

(b) If they make the existence or non-existence of any fact in issue or relevant fact highly probable or
improbable.

Illustrations Of Section 11 Related To Plea Of Alibi

(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that,
on that day, A was at Lahore, is relevant. The fact that, near the time when the crime was
committed, A was at a distance from the place where it was committed, which would render
it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime. The circumstances are such that the crime
must have been committed either by А, В, С or D. Every fact which shows that the crime
could have been committed by no one else, and that it was not committed by either by В, С or
D, is relevant.

Section 11 Of The Act To Be Read With Section 103

Section 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.

Illustrations And Comments On Section 103 Of The Act

Illustration:
A prosecutes В for theft, and wishes the Court to believe that В admitted the theft to C. A
must prove the admission.

В wishes the Court to believe that, at the time in question, he was elsewhere. He must prove
it.

Comments:

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Section 103 provides for proof of some one particular fact. It is an exception to the general
principle laid down in Section 101 of the Evidence Act. According to Section 103 whenever a
party wishes the court to believe and to act upon the existence of a particular fact, the party
will have to prove the particular fact. For example, in criminal case the accused guilt must be
proved by the prosecution. But, if the accused wishes to prove a particular fact, namely, at the
time of crime he was away, he must prove it. The burden of proof lies on the accused and not
the prosecution.

In law the particular fact is termed as alibi. The law requires that a party can take the plea of
alibi if he wants to take any such advantage. Plea of alibi taken by the accused, it is he who
has to prove it. Some examples will make the point clear,which are as follows:

1) The owner of a motor lorry killed two persons and took the defense that the cause of
accident was due to mechanical failure of brakes and the steering wheel, the burden was upon
the owner to prove the fact.

2) Where a person claimed the preferential allotment of plots under certain rules, the burden
of proving the entitlement to preferential allotment of plots was on him.

What is plea Of Alibi as per the Indian context?

An alibi is a form of defence used in criminal procedure wherein the accused attempts to

prove that he or she was in some other place at the time the alleged offense was committed.
The Criminal Law Deskbook of Criminal Procedure states: "Alibi is different from all of the
other defenses; it is based upon the premise that the defendant is truly innocent." In
the Latin language alibi means "somewhere else."

The fact of presence elsewhere is essentially inconsistent with the presence at the place and
time alleged and therefore, with personal participation in the act. It is on this concept that the
theory of alibi is based.

A person cannot be present at two places at the same time. Therefore, when an allegation is
levelled against a person and he takes the plea that he was at some other place when the
alleged crime was committed and there was no possibility of his being at the scene of the
crime, such a plea is called the plea of alibi.

While making such a plea the accused not only has to prove that he was not at another place
but has also to prove by cogent evidence that there was no chance of his being at the crime
scene. For instance, the crime scene was, say, a kilometre away from the place, the accused
claims to be present.

It is very much possible for that person to commit the crime and be back at the place he
claims to be. However, if he establishes that during the whole period when the crime
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occurred he was with a few people, who testify to that effect, and never went out of their
sight for that duration, the plea of alibi is very much credible and the person has a fair chance
of being acquitted[1]. A person will be entitled to acquittal ,if he succeeds in setting up the
plea of alibi. Proof of alibi should be set up at the earliest stage of proceedings. Failure to do
so would made it unconvincing. However, the Court must give the accused to avail the
defence and prove his alibi to its satisfaction.

Analysis Of Section 11 and Plea Of Alibi

Facts not otherwise relevant are made relevant by Section 11. The effect of this section is,
therefore, to clearly enlarge the classes of relevant facts. If a fact is relevant under this
section, it would be relevant even if it is not relevant under any other section of the Act. At
first sight, it would appear that this section would make every fact relevant because of the
wording of clause (b). But care must be taken not to give this section an improperly wide
scope by a liberal interpretation of the phrase “highly probable or improbable”.

Otherwise, this section might seem to supersede all the other provisions of the Act as to
relevancy. Though the terms of this section are wide, they are controlled by the provisions
regarding the relevancy contained in other sections of the Act. Further, the fact relied on must
be proved according to the provisions of the Act[2].The observations in Reg. v. Prabhudas,
(1874 11 B.H.C. 90) on S. 11 of the Act are interesting:

“S. 11 of the Evidence Act is, no doubt, expressed in terms so extensive, that any fact which
can, by a chain of ratiocination, be brought into connexion with another, so as to have a
bearing upon a point in issue, may possibly be held to be relevant within its meaning. But the
connexions of human affairs are so infinitely various and far- reaching, that thus to take the
section in its widest admissible sense, would be to complicate every trial with a mass of
collateral inquiries limited only by the patience and the means of the parties.”

The words “highly probable or improbable” indicate that the connection between the facts in
issue the collateral facts sought to be proved must be immediate so as to render the co-
existence of the two highly probable. The relevant facts under this section either (i) exclude,
or (ii) imply, more or less distinctly, the existence of the fact sought to be proved[3].

The words “highly probable” are of great importance, and the fact sought to be proved must
be so closely connected with the fact in issue or the relevant fact, that a Court will not be in a
position to determine it without taking them into consideration[4].

It must also be noted that before a fact can be relevant under Section 11, it must be shown
that it is admissible.

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The section declares as admissible, facts which are logically relevant to prove or disprove the
main fact or the fact in issue. There may be collarteral facts which have no connection with
the main fact, except by way of disproving any material facts proved or asserted by the other
side, meaning, when they are such as to make the existence of the fact so “highly
improbable” as to justify the inference that it never existed. A well-known instance is that of
the defence of alibi. Another instance is non-access of the husband to prove illegitimacy of a
child.

An admissibility under Section 11 depends on the nearness or the connection of the fact
sought to be proved with facts in issue, and also on the degree of such nearness or
connection. These facts render the fact in issue probable or improbable when taken with other
facts in the case.

In one case, where the question was whether a person was a habitual cheat, the fact that he
belonged to an organisation which was formed for the purpose of habitually cheating people
was held to be relevant, and it was open to the prosecution to prove, against each person, that
the members of the gang did cheat people[5].

But in a case of conspiracy to commit dacoity, facts showing that the object of the illegal
association, during a period of several months prior to the dacoity in question, had been the
commission of thefts and other discreditable acts, was held to be inadmissible to prove the
nature and character of the association[6].

Perceptions Of Plea Of Alibi Under Different Legal Systems Of Different

Countries

A plea of alibi defence differs between each country in determining that what factors will
establish the proper guidelines for the notice of a defendent`s intents and disclosure
requirements.The following is a brief description of how plea of alibi is dealt with in
respective countries:

1.Canada:
Under Canadian Law, an effective disclosure of an alibi defence entails the components of
adequacy and timeliness.The law has not determined precisely what constitutes adequacy and
timeliness; however, the Canadian courts have stated that such notice shall be “given
insufficient time to permit the authorities to investigate and it should be given with sufficient
particularity to enable authorities to investigate meaningfully.”To induce an adequate and
timely disclosure, Canadian courts may punish nondisclosure by drawing an adverse
inference when the trier of fact weighs the evidence heard at trial.

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2.England:
Under the Criminal Justice Act of 1967, Part 1 §11, a defendant is not allowed to adduce
evidence supporting an alibi defence unless he has given particular notice of an alibi defence.
Disclosure must entail the name and addresses of each witness along with any material
information that will assist in finding the witness. If a name or address in unavailable, the
court will acknowledge such information as long as there were reasonable steps to secure
that relevant information is ascertained. In the case of the prosecutor’s inability to trace one
of defendant’s witnesses, defence must disclose all information that is in its current and
future possession. The court will not deny an alibi defence if it is apparent that the defendant
was unaware of such procedural requirements. Both parties are obliged to disclose any
evidence obtained that may disprove the alibi.

3.Scotland:
In Scotland, two substantial issues arise once an indictment has been served. First ,analyses
of whether the parties’ state of preparedness is efficient to circumvent an adjournment of the
case at the trial date because preparation is incomplete. For instance, in McDermott v.HM,
“the trial judge expressed concern that the Crown had failed to investigate the alibi and
adjourned to give both parties an opportunity to consider leading further evidence.” Once the
parties have established their readiness, an inquiry into any preliminary legal challenges is
made in case of a fundamental flaw in the indictment, which would preclude the charge from
proceeding.

An alibi defence falls under the category of a “special defence,” which is basically a
procedural term in Scots Law. The term basically refers to certain defenses that an accused is
unable to state until a written plea has been lodged. This plea must be lodged at the trial,
before it, or within ten days, unless the accused can satisfy the court that there was just cause
for failure to do so. The defence of alibi simply means that the accused was elsewhere at the
time that the alleged offense was committed. To satisfy the guidelines of the defence, a
foundation for the alibi plea must be explicit, specifying the exact place where the accused
alleges to be present and at a definite time. Notice of intent to use the special defence of alibi
must be given to the prosecutor, alongwith the alibi and any witness that may be called before
the prosecution’s first examining witness.

4.U.S.A:
Criminal procedure rules have been designed to ensure that accused rights are protected from
excessive governmental intrusion. “Criminal procedure must balance the defendant’s right
and the state’s interest in a speedy and efficient trial with the desire for justice.” Rule 12.1
under the Federal Rules of Criminal Procedures, establishes the requirements for notice of an
alibi defence. As soon as notice by the government indicating the time, date, and place at
which the alleged offense was committed is given, the defendant has ten days ,unless
otherwise directed by the court, to submit a written notice of defendant’s intention to present
an alibi defence. Such notice must include the specific place or places where the accused
claims to have been during the time of the alleged offense. Furthermore, the notice must

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comprise a list of names and addresses of witnesses on whom the defendant intends to rely in
order to establish such alibi.

5.South Africa:
South Africa has yet to establish a specific criminal procedure rule pertaining to an alibi
defence. Under its Constitution, an accused individual has a right to a fair trial.

To ensure a fair trial, an accused individual must be informed with sufficient particularity of
the charge and details to answer it. An accused is entitled to be informed promptly of the
charge with such specificity that he comprehends the nature of the offence and the factual
basis for the accusation of the charge against him. Since South Africa does not recognize an
alibi defence an analysis of the criminal procedure structure is imperative to determine an
individual’s rights when an alibi defence maybe present.

Under South African law the right to adequate notification of the charge is an essential
component of the right to a fair trial for it allows for the effective preparation of a defence.

6.France:
France has not established an official or unofficial compilation of all the French laws that are
currently in force, therefore, for an accurate understanding of the law an in depth research is
required. France runs under civil law jurisdiction, which means that a judge adjudicates from
the analysis of the present case with less regard to prior case law. The French penal code
consists of only eight defenses: insanity; compulsion; error of law; order of legitimate
authority;defence of self, of third person, or of property; necessity; and youth. The code does
not recognize a specific defence of alibi; therefore, analysis of the penal structure will help
determine procedural requirements in order to perform a proper alibi defence.

7.Belgium:
Belgium has not recognized a rule or any procedural requirements pertaining to an alibi
defence. The law works under the theory of a verbal jurisdiction emphasizing the importance
of an oral argument in search of the truth. Each party has a right to choose how many
witnesses will be called to testify and who will be heard. The witnesses’ testimony plays a
significant role in convincing the jury of whether or not the accused is guilty. Therefore, it is
an essential requirement that each witness called is heard, the court cannot refuse to hear a
witness. In the end, the jury makes the final decision on the culpability of the accused.

The United States has established the strictest laws regarding reciprocal
disclosure for the defence of alibi:
Disclosure for an alibi defence has basic similarities between the countries that have
established an alibi defence. However, the United States has the strictest regulation in regards
to the time frame that a defendant has to disclose such information. Furthermore, the initial
burden is placed on the defendant to disclose the defence of an alibi.

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 Leading Indian Cases On Plea Of Alibi
1.Jayantibhai Bhenkarbhai v. State of Gujarat[7]:
 The Honble Supreme Court observed the word 'alibi' is of Latin origin and means
``elsewhere'`. It is a convention 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 either
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. 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 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 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 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 defence 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 defence case, pitted
against each other, if the balance tilts in favour 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.

2.Munshi Prasad v.State Of Bihar[8]:

In this case the court held that the presence of a person at a distance of about 400 to 500 yards
from the place of occurrence cannot be termed as a plea of alibi.Plea of alibi is largely based
on the physical impossibility of being of a person at the scene of crime.So distance is a very
material factor for establishing the aspects of plea of alibi in a case.

3.Nithari Verdict And The Plea 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

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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. So he had the defence of plea of alibi.

Conclusion: Relevance And Effectiveness Of The Plea Of Alibi

Alibis can be easily presented.  However, it is important to know what alibis will be credible
enough to create reasonable doubt and thus a winning defense at trial or to convince a
prosecutor to drop the charges against you altogether.

Corroboration of alibis through witness testimony, receipts, photos, surveillance video, or

other evidence can make an alibi defence much more likely to be successful.An example
below will make the above point clearer:

1) The police charge Daniel for the California crime of attempted murder of his business
partner, Alan.  Prosecution alleges the attempted murder took place on a Saturday
afternoon in Pasadena, CA.

2) Daniel is arrested because he matches the description of a man seen fleeing the scene
of the crime.  Daniel also engaged in numerous heated arguments with Alan about
their business.

3) However, Daniel was at his nephew's sixth birthday party in San Diego, CA on the
Saturday afternoon that the attempted murder allegedly took place.  Daniel is able to
corroborate this alibi with the testimony of numerous people that saw him at the
birthday party, as well as credit card receipts for gas he purchased on the way home.

4) Daniel's alibi that he was in San Diego at his nephew's birthday party when the crime
took place is corroborated by the witnesses and other evidence. This evidence will
likely be sufficient to refute the prosecution's case against him.

Bibliography

1.www.lawyersclubindia.com

2.www,indiankanoon.org

3.www,lawnotes.in

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4.www.advocateskhoj.com

5.www.shareyouressays.com

1
[1]Public documents help in establishing the defence of plea of alibi.
[2]Sevguon v. Sri Mathur ,1940 Madras 270.
[3]Jhabwala v.Emperor,AIR 1933 All.690.
[4]Rajendra Singh v.Ramganit Singh,AIR 1954 Patna 566.
[5]Kalu Mirza v.Emperor ,1909 37 Cal 91.
[6]Emperor v.Wahiduddin,32 B.L..R 324.
[7]2002 8 SCC 165.
[8](2002) SCC 351.
2

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