Evidence 4th Sem

Chanakya National Law University Patna, Mithapur

Subject: Law of Evidence Project: Defense of Alibi

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

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

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

Objective of the Study The Researcher has to find the provisions relating to Alibi   

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

Hypothesis The researcher has assumed the following points

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

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

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

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

1 Mark by Evidence, 17-18

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

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

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

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

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

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

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

Plea of Alibi 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 weight to public documents filed before them, and afford reasonable facilities for the accused to call his evidence. Usually, a request to call an alibi witness at the very end is vexatious and dilatory 6 Karanjit Singh v. State of Jammu and Kashmir, 2004 Cr LJ 4139 (J&K) 7 Wigmore, section 136 8 Wills' Circumstantial Evidence, p. 281

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

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

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

15 Thiagraja v. Emp., Cr LJ 785 16 Sarat Chandra v. Emperor, 35 Cr LJ 1335 17 State of Haryana v. Prabhu, AIR 1979 SC 1019

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

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

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

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

Explanation of Plea of Alibi Explain through following points

(a) Physical impossibility of accused Plea of alibi can only be taken when such plea postulates physical impossibility of 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 (f) Absence and Presence To prove his innocence against accusation, accused is required to raise reasonable question about his absence in place of offence at time of commission of offence and about his presence in some other place at such time. In this way, he is to raise reasonable doubt in mind of court about his participation in commission of offence to get benefit of such doubt against accusation.

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

(h) Consideration of whole Evidence 18 http://www.shareyouressays.com/120399/section-11-of-the-indian-evidence-act1872-2

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

Nithari Verdict and Defense of Alibi The verdict in the Nithari case by the CBI Special Judge has led to a debate on whether the conviction and death penalty awarded to the accused, Moninder Singh Pandher was justified. Those who suggest that the trial court allowed itself to be influenced by public opinion, rather than pronounce judgment in accordance with law, point out that the CBI did not find Pandher guilty of conspiracy to murder in this first case whose trial has concluded. The CBI did not seek Pandher's conviction for murder because he was abroad, in Australia during the period of the serial murders at his home in Noida. Special Judge cannot be faulted on this ground because she rightly concluded, following some precedents set by the Supreme Court in similar cases, that the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defense of alibi. Therefore, the Special 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 19 http://lawandotherthings.blogspot.in/2009/02/nithari-verdict-defence-of-alibi.html

Conclusion The researcher came on this conclusion, that honorable Apex Courts have explained two important principles about plea of alibi. Among these principles, one principle is that guilt cannot be inferred from making of false plea of alibi. And other principle is that accused cannot take benefit through plea of alibi when reasonable doubt is not created in mind of court about 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 deal with the inconsistent facts.

Bibliography BOOKS   

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

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

E-SOURCES           

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

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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