Plea of Alibi under Section 11 of Indian Evidence

Act
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BY ANJALI RAWAT ON AUG 10, 2020LEX ARTICLES, LEX PEDIA

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Introduction
It is the plea of absence of person, charged with an offence, from the place of occurrence at the time of the
commission of the offence is named as plea of alibi. The term “Alibi “is a Latin word which implies –
elsewhere or some another place. In criminal law this plea is employed by accused against the commission of
an alleged offence. When the accused pleads the alibi in court of law he or she attempts to prove that he or she
is elsewhere else at the time when the offence is committed. In other words, it simply tells us that the accused
wasn’t physically present at the crime scene. It’s basic law that in criminal case, the burden is on the accused
to prove that the he was not present at the scene and has not participated within the crime (Section 103 of
Indian Evidence Act, 1872). So as to ascertain the plea of alibi the accused must lead evidence to indicate that
he was too far off at the instant of the crime from the place of occurrence that he couldn’t have committed the
offence. Section 11 of Indian Evidence Act, 1872 is expounded with the Plea of Alibi.
Nature of facts:
The Section 11 include of two clauses, viz.,
1. Facts in step with fact in issue or relevant fact, and
2. Facts highly probable or improbable.
1. Facts inconsistent with fact in issue or relevancy of fact:
One fact is inconsistent with the opposite when it cannot co-exist with the opposite. Under this clause facts are
relevant only because they can’t co-exist with fact in issue or relevant fact. Above example shows that A is
illiterate. A cannot write a defamatory letter to B. These two facts cannot co-exist. “The usual theory of
essential inconsistency is that a specific fact cannot co-exist with the doing of the act in question, and,
therefore, that if that fact is true of an individual of whom the actual fact is alleged, it’s impossible that he
should have done the act.”

Under the clause there are a minimum of six classes of cases which show inconsistency, viz;
(a) Alibi:
Alibi may be a Latin word, which suggests elsewhere. It’s used when the accused takes the plea that when the
occurrence come about he was elsewhere. In such a situation the prosecution has to discharge the burden
satisfactorily. Once the prosecution has got to successful in discharging the burden it’s obligatory on the
accused who takes the place of alibi to prove it with absolute certainly. An alibi isn’t an exception envisaged
within the IPC or the other law. It’s a rule of evidence recognized by Section 11 of the Evidence Act that facts
inconsistent with fact in issue are relevant [Illustration (a)]. However it can’t be the only real link or sole
circumstance to reveal conviction. When one fact is critical to the hypothesis of the guilt of the accused, but
strikingly absent within the chain of direct evidence, the prosecution case certainly will fail. Because, an alibi
the relevancy of which is completely inconsistence with hypothesis that the accused had committed an offence.
When the defendant took the plea of alibi the burden of proof lies on him under section 103 of this Act. If an
individual person is charged with murder he is to prove that he was somewhere. The plea of alibi has got to be
taken at the earliest opportunity and it’s to be proved to the satisfaction of the court. When an accused was
discharged from hospital situated 180 km. far away from the place of occurrence.
11/2 hrs’ Earlier from time of occurrence the plea of alibi was created. Strict proof is required for creating the
plea of alibi. The plea of alibi must be proved with absolute certainty as said in Rajesh Kumar v Dharamin.
Plea of alibi was rejected when no material showing that accused was present in jail for purpose of
identification at point of our time when occurrence passed.
The plea of alibi taken by the party on the idea of certificate issued by a hospital not filed at the stage of filing
objections but during course of agreements in execution proceedings being an afterthought was found not
tenable and rejected’ while weighing the prosecution case and defense case, if the prosecution case fails the
accused would be entitled to profit of the reasonable doubt which might emerge within the mind of the Court.
(b) Non access of husband to indicate illegitimacy of the child:
Since legitimacy of the children implies a cohabitation between husband and wife. For disproving the
legitimacy the husband has got to prove that he had no cohabitation together with his wife during the probable
time of begetting as he was in abroad.
(c) Survival of the alleged deceased:
A is accused of murdering В on 10th August 1996 at Delhi. But A tried to prove and led evidence to indicate
that В was alive on 25th December 2004. Both the facts are relevant under section 11 only because these aren’t
consisting with one another.
(d) Commission of an offence by a 3rd person:
A is charged with the murder of B. A gives evidence that В was murdered by C. This is often admissible being
inconsistent with fact in issue.
(e) Self-infliction of harm:
A is charged with the murder of B. A proves that В had committed suicide. The evidence is admissible.
(f) Non-execution of document:
A file a suit for recovery of possession against В alleging that he has purchased the land. В leads evidence that
the deed of sale wasn’t executed yet. The very fact has relevant.

2. Facts highly probable and improbable:

Under the second clause the fact which by itself or together with other facts make the existence and
non¬existence of the actual fact in issue or relevant fact highly probable or improbable. The words “highly
probable” indicate that the court need to glide by the prohibits of the circumstances as regards the existence or
non-existence of fact in issue or relevant fact. It also indicates that the connection between the facts in issue
and also the collateral facts sought to be proved must be immediate on render the co-existence of the two
highly probable. The collateral facts will be admitted in evidence if they create the existence of the actual fact
in issue highly probable or improbable.
It is well settled that it’s not a mere reasonable probability but carries great weight in bringing the court to
conclusion whether facts exist or non-exist. So as to form a collateral fact admissible, the collateral facts must
be established by conclusive evidence and when established these must afford an inexpensive presumption on
matter in dispute. When someone is charged with forging a selected document, evidence is afforded to prove
that variety of documents apparently forged or held in readiness for the aim of forgery were found in
possession of the accused. It is said as per Reg. v Prabhudas that during a charge of forgery, the evidence
offered to prove that variety number of documents apparently forged or held in readiness for the aim of forgery
found in possession of the accused isn’t admissible. This section renders inadmissible the evidence of one
crime to prove the existence of another unconnected crime, athough it’s cogent.
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Scope:
Section 11 of the Evidence Act is very wide in its application and it doesn’t impose any restriction on facts that
may be admitted even these facts are highly inconsistent or improbable with fact in issue or relevancy of fact.
The facts which ordinarily tend to render the existence of fact in issue or relevant fact probable or improbable
has relevancy. But, under this section there are collateral facts which by way of contraction, inconsistent with
the fact in issue or relevant fact are also relevant. It is only a rule of evidence recognised in Section 11 of the
Evidence Act that facts which are inconsistent with the actual fact in issue are relevant. The section is
described as “residuary section” copy with relevancy of facts which are logically admissible.
Illustration – A is accused of B’s murder on a specific date at Kanpur. Thereon day A was at Pune, has
relevancy to prove the plea of Alibi. Now A will prove that it might be impossible for him to commit murder at
Kanpur as he was in Pune.

Essentials
Precisely to essential part involves the disclosure of an alibi- adequacy and timeliness. In general, another
factors have to be compelled to adhere as well;
1. There should be an alleged offence punishable by law.
2. However, it should be noted that then plea of alibi isn’t maintainable in all the cases, number of them are as.
• This plea isn’t maintainable in civil wrong. For example in a defamation suit, contributory carelessness cases.
• A plea of alibi isn’t applicable in matrimonial. For example, suit for maintenance suit for divorce.
• In some jurisdictions, a plea of alibi works as an exception to the right of silence. For example of Canadian
common law.
• The person creating the plea of alibi must be an accused in that offence.
• Alibi could be a plea of defense (in respect of innocence of defendant) by that the accused suggests to the
court that he was elsewhere at the time of the commission of the alleged offence.
• The plea should prove on the far side any reasonable6 doubt that it was impossible for the defendant to be
physically present at the scene of the offence.
• The plea should be backed by evidence supporting the claim of the defendant.

Principle of Plea of Alibi:

Plea of Alibi relies on Roman principle,”ei qui non negat incumbite probation”. It means who claims needs to
prove it not the party who negats. An individual’s alleged to own done any act might introduce the fact that
making it less possible that he/she was present at the time and place of the act and such facts are admissible
even though they don’t suffice to form his/her presence total impossible. Alibi if established may be a
complete defense to the charge of getting committed the crime, the force of this defense is universally
recognized. The principle of an alibi is that essential inconsistent with the presence at the place at the place and
also the time alleged, and thus with personal participation within the fact. Thus the evidentiary fact could be a
new affirmative proposition consider because the factum probandum through its logical operator is negative
one.

Who may take a plea of alibi?

Generally, the accused of an alleged offence takes the plea of alibi. The accused must plead his presence
elsewhere at the time of the commission of alleged offence.

When to boost the plea of alibi-

In order for the plea to achieve success and effective it’s always advisable to create the plea at the earliest or
within the initial stage of case: this stage might be at the stage of framing of charge or at preliminary hearing.
Failure to determine Alibi – Failure on the a part of accused to ascertain plea of alibi doesn’t help the
prosecution and it can’t be held that the accused was present at the crime scene, the prosecution must prove it
by positive evidence. Thus, mere failure on the part of the accused to determine the plea of alibi shall not result
in an inference that the accused was present at the crime scene.

Case Laws-
Binay Kumar Singh case (1997)
It was held that Plea of alibi isn’t an exception (special or general) enumerated within the Indian Penal Code or
within other law. Its rule of evidence provided in Section 11 of Indian Evidence Act that fact which are
inconsistent with the very fact in issue are relevant.
Dudh Nath Pandey case (1981)
The Plea of Alibi was explained by Apex court as –
The plea of alibi states that the physical impossibility of the presence of the accused at the crime scene by
reason of his presence at another place. The plea can therefore succeed provided that it’s shown that the
accused was to date away that he couldn’t be present at the place where the alleged crime was committed.
Is alibi a best defense or not?
• The purpose of alibi isn’t to determine or prove anything but merely to boost a doubt within the mind of
judge that accused wasn’t present at the crime scene.
• If this plea was made at initial proceedings accompanied with strong and independent evidences then there
are more chances of acquittal or discharge of accused.
• Circumstantial evidence to determine alibi doesn’t guarantee its acknowledgment by the court.
• The plea of alibi isn’t affirmative defense within the sense that it’s an assertion to boost an inexpensive doubt
on whether the accused is really a wrongdoer.

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