Section – 11 [Plea of ‘Alibi’]
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 recognised in section 11 of I.E. Act that facts which are inconsistent with the fact in issue are relevant.
Illustration (A) given under the provision is worth reproducing in this context.
“The question is whether ‘A’ committed a crime at Calcutta on a certain date: the fact that on that date, ‘A’ was at Lahore is relevant”[1].
When to prove?
The plea of alibi is not one of the General Exceptions contained in Chapter IV IPC. It is a rule of evidence recognised under section 11 of the Evidence Act. However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused[2].
Definition
The Latin word ‘alibi’ means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused had adopted the defence of ‘alibi’. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of ‘alibi’, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But 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 scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstance, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of ‘alibi’[3].
It is further clearer that the word ‘alibi’ has not employed by the legislators neither in the Indian Penal Code nor Code of Criminal Procedure nor even in the Indian Evidence Act, 1872 but Apex Court in Jayantibhai Bhenkaarbhai vs. State of Gujarat[4] explained and interpreted how the word ‘alibi’ is now used in Criminal Trials. Section 11 of I.E. Act, 1872 provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact or if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or a relevant fact highly probable or improbable, and the Supreme Court in the above said context in the same Judgment has given an Illustration (a) of Section 11. 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.
Neither an application of section 103 nor of section 106 of the Indian Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering of facts of which the burden of proof may be upon the accused[5].
Who has to prove alibi?
Turning to the specific plea of alibi which was put forward by the respondent-accused.1, it is well settled that the burden of substantiating such a plea of making it reasonably probable is upon him. In our view, the learned Sessions Judge has given substantial reason for rejecting this plea[6].
Plea raised before the appellate court
In the present case, appellant Sri Chand has tried to raise a plea of alibi by pleading that he was in employment elsewhere. It is in the statement of the Investigating Officer that Sri Chand was an employee in a Sugar Mill at Nawanshahr. However, the concerned appellant did not adduce any evidence to prove that he was at his place of job at the relevant point of time. He could have adduced the best document evidence by producing the attendance record of Sugar Mill. However, Sri Chand did not take any steps to prove that plea of alibi[7].
Prosecution must prove the initial burden
FAVOUR OF ACCUSED: On the side of the defence, two witnesses were examined as DW1 & DW2 to speak about the plea of alibi. It is the settled law that if once alibi is pleaded, it is only for the person, who pleads the same, should prove the same. If the plea of alibi is proved, then it is for the prosecution to disprove the same. But, in this case, since the initial burden of the prosecution to prove its case beyond reasonable doubts has not been discharged, we need not go into the plea of alibi made by the first accused through DWs.1 & 2[8].
Of course, the evidence adduced by the appellant to prove his alibi was not very convincing and merely because he had set up a false alibi, it cannot be held that he was positively responsible for the murder[9].
AGAINST THE ACCUSED: All the accused had taken the plea of alibi to show that none of them was present at the place of occurrence on the relevant date. However, none of them could successfully prove the same and the plea of alibi taken by them was found to be false. This points towards their guilt[10].
Appeal and plea of alibi
The plea of alibi involves a question of fact and both the courts below have concurrently found that fact against the Appellant-Thakur Prasad. The court, therefore, cannot, on the appeal by special leave, go behind the concurrent finding of fact[11].
[1] AIR 1997 SC 322 – Binay Kumar Singh vs. State of Bihar followed in Vutukuru Lakshmaiah vs. State of A.P – Crl.O.P No: 2047/2008 – 24.4.2015.
[2] Darshan Singh vs. State of Punjab – (2016)1 SCC (Cri) 702=(2016)3 SCC 37
[3] AIR 1981 SC 911=(1981)2 SCC 166 – Dudh Nath Pandey vs. State of U.P; AIR 1984 SC 63 – State of Maharashtra vs. Narisngarao Gangaram Pimple
[4] AIR 2002 SC 3569=2002 AIR SCW 4187
[5] Sawal das vs. State of Bihar – 1974 Cr.L.J 664 (SC)=AIR 1974 SC 778=1974 SCC (Cri) 362=(1974)4 SCC 193
[6] STATE OF UTTAR PRADESH vs SUGHAR SINGH AND OTHERS – Criminal Appeal No. 273 of 1974 – Decided on : 08-12-1977 – (1978) AIR(SC) 191=(1978)1 SCC 178.
[7] Sri Chand and another vs. State of Punjab – 2014(4) AICLR 851(SC)
[8] Kumar @ Nagarajan & Others Versus The State rep. by the Inspector of Police, Dindigul District – Crl.A(MD)No. 353 of 2010; dt. 04-08-2015 also see Shankarlal Gyarasilal Dixit Versus State of Maharashtra – 1981 CrLJ 325 (SC-3 judge bench) [false plea].
[9] Gayadin vs. State of M.P – 2005(1@) SCC 267
[10] Prithipal Singh vs. State of Punjab & Anr – 2012(1) SCC (Cri) 1=2012(1) SCC 10
[11] Thakkur Prasad vs. State of M.P – AIR 1954 SC 30 followed in Tomaso Bruno & Others vs. State of U.P – 2016(1) MWN (Crl) 350 (SC – 3 Judges) – Here please note that Tomaso Bruno has been overruled for the observation on Electronic Certificate on section 65-B Evidence Act. But this does not affect the other parts of it.
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