Dr.

Shakuntala Misra
National Rehabilitation
University,Lucknow

PROJECT ON

DEFENCE OF ALIBI

(UNDER THE SUPERVISION OF DR.

GULAAB RAI)

SUBMITED TO: SUBMITTED BY:

Dr. GULAAB RAI Ashwani Signh
Faculty of Law B.COM.LL.B(Hons.)
DSMNRU, Lucknow 5th sem
 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. Gulaab
Rai 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
 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

1
Mark by Evidence, 17-18

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

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 the

3
State v. Lakshmandas Chaganlal Bhatia, 69 Bom LR 808
4
http://www.indiankanoon.org/doc/631717/
accused has succeeded in proving the defense of alibi 5 . 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 unless the alibi
has been indicated at the earlier stages.9 Where the accused sets up a plea of alibi that he was on

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
9
Sahdeo v. State of Vindhya Pradesh, 1954 VP 6
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. For, if it were

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
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

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

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

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.

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

BOOKS

 Batuklal Law of Evidence

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