DR.

SHAKUNTALA MISRA NATIONAL

REHABILITATION UNIVERSITY

LUCKNOW

ACADEMIC SESSION: 2021-2022

LAW OF EVIDENCE

TOPIC: DEFENCE OF ALIBI

SUBMITTED BY SUBMITTED TO

ANVESHA CHATURVEDI MR. SANDEEP MISHRA

B.COM. LL.B.(HONS.) GUEST FACULTY

V SEMESTER FACULTY OF LAW

ROLL NO. 194140013 DR. SHAKUNTALA MISRA

NATIONAL REHABILITATION

UNIVERSITY LUCKNOW
 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. 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…
 TABLE OF CONTENTS

• Nature and Scope of Section 11 of Indian Evidence Act 1872

• Meaning of Alibi
• Plea of Alibi
• Essentials of Alibi
• Explanation of Plea of Alibi
• Nithari Verdict and Defence of Alibi
• Conclusion
• Bibliography
 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 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

1
Mark by Evidence, 17-18
2
Rangayyan v. Innasimuthu, 1956 Mad 226 (230): (1955) 2 MLJ 687
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
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 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 defence 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, defence 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 defence 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 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 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

4
http://www.indiankanoon.org/doc/631717/
5
5 Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165
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 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.

PLEA OF ALIBI
Alibi’s 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

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
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 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 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.

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
15
Thiagraja v. Emp., Cr LJ 785
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

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.

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

(a) Physical impossibility of accused

Plea of alibi can only be taken when such plea postulates physical impossibility of accused’s
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

18
http://www.shareyouressays.com/120399/section-11-of-the-indian-evidence-act-1872-2
 (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

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 DEFENCE 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 Judge’s dismissal of Pandher’s
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

CONCLUSION
The researcher came on this conclusion, that honourable 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
accused’s 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 deals with the
inconsistent facts.

19
http://lawandotherthings.blogspot.in/2009/02/nithari-verdict-defence-of-alibi.html
 BIBLIOGRAPHY
BOOKS

• Batuklal Law of Evidence

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