Coming straight to the point, let me begin by saying that the word ‘alibi’ is a latin expression which means and implies in common connotation as ‘elsewhere’. It is always used as a shield of defence and never as a weapon of offence by the accused and this is most obvious by the very meaning of alibi which I have just mentioned. The accused by forwarding the defence of alibi always tries to extricate himself by pointing out that as he as elsewhere at the time the offence was committed, it was virtually impossible for him to be on the scene of crime at the time the offence was committed.
Before discussing this subject further, it is imperative that we first discuss what are the views of eminent persons and jurists whose views are regarded all over the globe. According to Wigmore, “The theory of an alibi is that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged , and therefore with personal participation in the act . Sir Michael Foster points out that , “It must be admitted that mere alibi evidence lieth under a great and general prejudice, and ought to be heard with uncommon caution ; but if it appeareth to be founded on truth; it is the best negative evidence that can be offered; it is really positive evidence which in the nature of things, necessarily implieth a negative; and in many cases, it is the only evidence an innocent man can offer.” Dr Hans Gross in his work ‘Criminal Investigation’
points out that, “A witness who has given false alibi testimony must be shrewd indeed to survive an exhaustive cross-examination by a skilful advocate into the details of time, place and circumstances given on direct examination. This is particularly true if that examination as to where this witness was at other times on the same and specified previous days, what he was doing, who was present.”
It is of utmost significance to bring out here that it is Section 11 of the Evidence Act which arms the accused with the defence shield of ‘the plea of alibi’ by which he pleads that he was present elsewhere at the time of occurrence of crime. It is also worth mentioning here that the presence of the accused elsewhere away from the scene of crime is inconsistent with the fact in issue or relevant fact that necessitates his presence at the scene of crime and here is where Section 11 comes into play and fact not otherwise relevant becomes relevant as they are inconsistent with any fact in issue or relevant fact. This must be borne in mind.
Needless to say, Section 11 also comes into play when as pointed out in the Section itself that facts not otherwise relevant are relevant if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. As for instance, if a person is accused of committing a murder at Meerut on 27 September. The fact that the accused person was at Bombay on 27 September which he is able to prove by producing diaries of the hotel where he stayed and where he entered his name and signed in his own handwriting is relevant. Also, if the accused visited a doctor or a lawyer and he noted his visit and the purpose along with timing in a professional diary or the accused posted a letter which he had himself written on that day – 27 September when murder took place at Meerut or he encashed a cheque at Bombay or he shows any other suitable proof which establishes that he was at Bombay on 27 September is a relevant fact which he can always cite as a plea of alibi in his own defence.
While citing the relevant case law, it can hence be stated that in Munshi Prasad v State of Bihar, AIR 2001 SC 3031, it was held by the Supreme Court that, “The word “alibi”, a Latin expression means and implies in common acceptation “elsewhere”; it is a defence based on the physical impossibility of participation in a crime by an accused in placing the latter in a location other than the scene of crime at the relevant time, shortly put, the presence of the accused elsewhere when an offence was committed.” A distance of 400-500 yards between the place of occurrence and the place where the accused claimed to be present (present in a Panchayat meeting) was held to be not amounting to ‘presence elsewhere’. It was also held that it could not be an impossibility that one could be present at both the places more or less simultaneously. It is thus clear from this judgment that the Supreme Court while hearing the ‘plea of alibi’ from the accused was not satisfied as it felt that a distance of 400-500 yards between the place of occurrence of crime and the place where the accused claimed that he was present was held to be not amounting to ‘presence elsewhere’ as the distance is not too much and could be easily covered in a very short span of time by the accused. Therefore the role of accused in committing the crime and fleeing after committing it is not beyond suspicion as the distance is not so huge that it cannot be covered easily.
In yet another case law, the Supreme Court in Dudh Nath Pandey v State of UP, (1981) 2 SCC 166, has held that, “The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the 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.” To the same effect, the Supreme Court in State of Maharashtra v Narsingrao Gangaram Pimple, AIR 1984 SC 63 made it absolutely clear that, “It is well-settled that the plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence.” Also, in this case the police officer contended that he was not present at the station where bribe was supposed to have
been offered to him. But he in his defence showed his presence at such places as were within reach , being a few miles away. The plea of alibi was not allowed as he was unable to prove his case beyond doubt and the places where he allegedly went were not very far away and were within reach . In Puran v State of UP , AIR 1984 SC 454 , a Government worker’s presence in workshop at the material time was substantiated by the time-keeper’s record. It was held that the plea of alibi established though another worker deposed that on Sundays all workers would go away by noon.
Truth be told, for the ‘plea of alibi’ to be held reliable , it must be spontaneous and should not be a product of after thought. It is the bounden duty of all the courts concerned to satisfy themselves before pronouncing judgment that the ‘plea of alibi’ was not an afterthought with the sole aim of absolving oneself of the crime committed by showing one’s own presence somewhere else. Wherever the courts find that the ‘plea of alibi’ is being raised as an ‘afterthought’ and was not spontaneous, the courts should make no delay in rejecting it after evaluating all the facts and circumstances of the concerned case.
It cannot be glossed over that in Dhananjoy Chatterjee v State of West Bengal, (1994) 2 SCC 520 , it was held by the Apex Court that, “The plea of alibi must be proved by cogent and satisfactory evidence completely excluding the possibility of the presence of the accused at the scene of occurrence at the relevant time.” The Court found that the belated and vague plea of alibi was only an afterthought. Therefore, it was not accepted and the accused was convicted. In State of UP v Mukunde Singh, (1994) 2 SCC 191, evidence regarding plea of alibi was adduced for the first time in the High Court while appeal was pending . This itself raises many questions and the evidence was found to be not satisfactory. Moreover , on the basis of such alibi which is full of discrepancy and which was not raised in the initial stage when the case was being decided in the lower courts and was raised for the first time in the High Court during pendency of appeal, the testimony of eyewitnesses among whom there were two injured witnesses could not be brushed aside.
Simply put, in Gurcharan Singh v State of Punjab, 1994 Supp (1) SCC 515, the accused pleaded that he had been away from the scene of crime and had in fact gone to buy a thresher. The thresher dealer testified to that and showed a book but that was in an irregular shape with blank pages. Held that it was no good evidence. Also, in Rajesh Kumar v Dharamvi, AIR 1997 SC 3769, the accused claimed to have gone to an advocate for consultation at the time when the occurrence of crime took place. No contemporaneous document was produced by the advocate showing the fact and timing of his visit. The plea of alibi was not accepted by the Supreme Court. Further, in Binay Kumar Singh v State of Bihar, AIR 1997 SC 322, it was held that strict proof is required for establishing plea of alibi. There was a finding of fact by the court below disbelieving the plea of alibi. The founding was based upon strong and cogent reasons. The Supreme Court did not interfere and thus the plea of alibi was not accepted as there was no strict proof in its support to substantiate it.
In yet another case Dharamvir v State of UP, 1990 Cri LJ 839, it was held by the Court that the plea of alibi not made out as the accused had gone only to a nearby place. Also , in Surinder Grover v State ( Delhi Admn. ), 1993 AIR SCW 1972, where the accused in his defence pleaded to be under treatment as an out-patient in a hospital at another place on the day of occurrence but failed to produce any out-patient ticket that could justify his defence of alibi. Mere deposition by the concerned medical officer that two persons of his name were treated was not found to be conclusive evidence and it was held by the Apex Court that alibi was not established. Further , in Hari Chand v State of Delhi, AIR 1996 SC 1477, where the accused contended that he was having examination and therefore he could not be held to be present at the scene of occurrence but the evidence depicted that he had examination on the day before the day of occurrence and the next examination was scheduled to be held after two days, the plea of alibi could not be accepted.
It merits no reiteration that if the grounds forwarded by the accused appear to be genuine to the court, the plea of alibi is always accepted by the court without any hesitation whatsoever. The only requirement is that the court should be convinced that the plea of alibi is genuine and not fake. As for instance, in Munshi Prasad v State of Bihar, 2001 Cr LJ 4708, where there was denial of averments made in an election petition pertaining to allegation of corrupt practice based on the speech of certain person , it was held permissible for the returned candidate to lead evidence to prove his presence elsewhere (alibi) even without any specific averment to that effect in the written statement. In yet another case, Tulshiram Bhanudas Kambale v State of Maharashtra , 2000 Cr LJ 1560 (Bom), it was held by the Bombay High Court that where the accused was discharged from a hospital situated 160 kms away from the place of the incident and his discharge was just only 1 ½ hours before the incident, the plea of alibi was made out.
For my esteemed readers exclusive benefit, let me disclose here that just because the accused made a false plea of alibi, he cannot be held responsible on this very ground for the commission of an offence . In Govind v State of MP, (2005) 12 SCC 267, it was held by the Supreme Court that, “The fact that the accused advanced a false plea of alibi cannot by itself be a proof of the fact that he was responsible for the offence.” In Babudas v State of MP, 2003 Cr LJ 2536 (SC), it was held by the Apex Court that a false plea of alibi could be a link in the chain of circumstances, but it could not be the sole link or sole circumstances on which a conviction could be based.
It is the bounden duty of all the courts concerned to ensure that they treat the plea of alibi on parity with any other type of evidence and should not always try to find shortcoming in it. Of course, this is not to suggest that the ‘plea of alibi’ not be subjected to scrutiny and be given a blank cheque but yes, certainly I would say that unnecessary nitpicking must not be done and too much of suspicion should not be cast upon it. Even our Supreme Court which is the highest court of the land too has emphasized repeatedly this very point. The relevant case law that I would cite here to substantiate what I have just said is that of Jumni and others v State of Haryana, 2014 (3) Crimes 14 (SC). In this case, it was explicitly held by the Supreme Court in Para 25 that, “It is no doubt true that when an alibi is set up the burden is on the accused to lend credence to the defence put up by him or her. However the approach of the court should not be such as to pick holes in the case of the accused person. The defence evidence has to be tested like any other testimony , always keeping in mind that a person is presumed innocent until, he or she is found guilty.”
Of course, the Supreme Court said in the landmark case of Binay Kumar Singh v State of Bihar, 1997 (1) SCC 283 that, “We must bear in mind that an 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 the Evidence Act that facts which are inconsistent with the fact-in-issue are relevant.” Also, let me highlight here what the Supreme Court itself said in Para 26 of the latest case law titled ‘Jumni and others v State of Haryana, 2014 (3) Crimes 14 (SC). It said that, “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 have participated in the crime. It is a 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 has 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 circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.” This view was reiterated in Jayantibhai Bhenkarbhai v State of Gujarat.
Finally, on a concluding note, let me reiterate here what I said right in the beginning that the plea of alibi is a shield of defence in the hands of accused by which he/she tries to prove his/her own innocence by pleading that as they were elsewhere at the time of commission of the crime and so therefore it is not possible for them to have committed the crime. It is then entirely up to the concerned court to weigh all the evidence available before them in a total dispassionate manner and after examining all of them dispassionately including the plea of alibi arrive at the right and reasonable conclusion which is acceptable to both the parties! The plea of alibi must be accepted only after proper proof is adduced before the concerned court by the accused which must be strictly checked and verified so that there is no error or miscarriage of justice in any manner! This is exactly what the Supreme Court also has itself held time and again as I have myself pointed out earlier!
Sanjeev Sirohi