LIST OF CASES

INDIAN CASES

Ritesh Chakravarti V State of M.P

MousamSingha Roy and Ors. v.State of West Bengal

State of Kerala V Anilachandran

State of Bihar V Hare Ram Prasad

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Ramesh Kumar V State

Brijlal Pd.Sinha V State of Bihar

State of Gujrat V Chavda Manaji Chelaji

Dodo Majhi V State

Mangru V State

Poosaram V State of Rajasthan

Tulshiram v State of Maharashtra

Dalel Singh v Jagmohan Singh

Ram Bali v State of UP

Bharagavan v State of Kerala

Bachittar Singh v State of Punjab

Krishnan v State

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Jasbir v State of Haryana

Emperor v Upendra Nath Das

Yusuf Sk v The State

State of Mysore v Raju Shetty

Rishi Kesh Singh &Ors.v The State

Smt. Sandhya Rani Bardhan v The State

Karnail Singh v State of Rajasthan

GottipullaVenkata Siva Subramanyam v State of Andhra Pradesh

US CASES

People v. Worden

People v. Kelly

State v. Flint

People v. Mitchell

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State v. Bedard

Schuster v. State

People v. Gibson

Harrison v. State

People v. La Munion

Albritton v. State

ENGLISH CASE

State v. Blunt, 59 Iowa 468

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Research Methodology

This is a doctrinal research with a broad outlook. The paper revolves around answering the
question related as to leading issues related to the Plea of alibi

Limitation: Heavily relied on the secondary source for commentaries of various scholars and
books on the subject and thus the outcomes from the project can be a mirror of their views.

Research Question

This paper concerns the question

Can the Court convict a person solely on the basis of the false alibi?

When is the evidence appreciated in respect of alibi?

Can the accused be allowed to be taken the plea of right to private defence in case where the
plea of alibi is taken by him?

How time and distance and the time of absence relevant in relation to the plea of alibi?

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 INTRODUCTION

Plea of Alibi is not an exception under the Indian Penal Code but it is a rule of evidence
under the India Evidence Act. This is reproduced by section Illustration (A) under the
provision. “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 This plea is basically taken when the
accused could not be present at the scene of crime because he was somewhere else.

In Nishar Ad Fajmohmed Kaji V State of Gujrat 2 The accused claimed that he was not
present when the crime took place but he was at a police bandobast later it was verified by
the police constable that he went away during that period and hence his plea was rejected. It
has been held by the Hon’ble Supreme Court that distance is very material factor in cases
related to alibi as the plea is based on physical impossibility of the accused at the scene of the
crime.3

Further the burden of proof lies on the part of the accused that he was not present at the scene
of the crime and this proof should be of high probability. The accused has the right to plead
alibi only after the prosecution has successfully established his case. If the evidence is such
that it raises doubts in mind of the judges than it may look into prosecution evidence to see
whether the plea of alibi fits in the circumstances or not. This burden of proof alibi lies from
section 103 of the act which states that if the person wants the court to believe in certain set
of facts then the burden of proof lies on that person.

The quantum of proof that is required to proof a case of alibi differs from case to case. At
times plea of alibi need not to be necessarily proved creation of enough doubt in the mind of
judges is sufficient. But there are times when it has to be strictly proved.It has been held in a
Supreme Court Case that the plea of alibi would be considered relevant only when the burden
on the prosecution has been discharged satisfactorily.4

In the delhi gang rape case the three accused took the plea of alibi but it was rejected as the
Bench headed by Justice Dipak Mishra found it to be contradictory and inconsistent in nature.

1
India Evidence Act 1872, s 11
2
Nishar Ad Fajmohmed Kaji V State of Gujrat ,(1998) 9 SCC 23
3
Munshi Prasad v. State of Bihar ,(2002) 1 SCC 351.
4
Jayantibhai Bhenkaarbhal v. State of Gujarat , (2002) 8 SCC 165.

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(1)CAN A COURT CONVICT A PERSON SOLELY ON THE BASIS OF
ALIBI?
Just because a person took a false plea of alibi doesn’t mean that he is responsible for the
offence. Even if an alibi is not proved, the court shall not record a judgement of conviction
unless the prosecution is found to have established its case.5This was first established in the
case of Ritesh Chakravarti. The decision of the RiteshChakarvarti had relied on the decision
of MousamSingha Roy and Ors. v.State of West Bengal6wherein it was stated by the Hon’ble
Supreme Court that more grave an offense the degree of proof needs to be more stricter in
that case and for conviction a high degree of proof is required. If the plea of alibi is discarded
that was set up by the accused then also it has to be proved beyond reasonable doubt that the
accused person was guilty. It is the duty of the person to plead an alibi beyond reasonable
doubt. Just because the accused was not able to prove his defence of alibi does not the make
the case against him. 7 If the accused has taken the plea of alibi and it fails the prosecution
can not take advantage of it. Prosecution has to stand on its own legs.8 Where the plea of alibi
is found to be false it is just a link in the chain of circumstantial evidence against the
accused.9Before the accused can be convicted it is necessary for the prosecution to prove the
case beyond reasonable doubt. But there have been instances in foreign courts wherein the
accused has been imprisoned and fined. There have been cases in Ireland, Australia and
United Kingdom wherein fines and imprisonment has been imposed by court.The first Irish
case was wherein the facts were that the girlfriend of a man aquitted of murder was
sentenced to 75 hours of imprisonment for providing false alibi for him.Sio Boyle from
Colinvale,Poleglass had pleaded that B Gallagher was with her when the incident took place.
She said they were in a shopping mall on 25th May, 1996 when the incident took place. In
December was aquitted and was found not guilty of the murder of Dessie McCleery at the
Chicago Pizza Factory, Dublin road. But it was held that Sio Boyle perverted the court of
justice and hence was convicted.The Second case was of United States wherein two kids
were charged with murder of homeless man and a mother was trying to save her two
children.10 The court had ordered police to imprison the mother for giving false alibi as this is
abuse of law and it would be miscarriage of justice. The third case was in Australia where
the facts were such that the accused was with Tony Williams , when the crime took place as
told by Mr Tony William himself. It was later found that the accused was not present when
the crime took place and hence it was a false case of alibi. A fine of $500 and a 12 month
bond was imposed by the court.11

5
Ritesh Chakravarti V State of M.P,(2006) 12 SCC 321
6
MousamSingha Roy and Ors. v.State of West Bengal, (2003) 12 SCC 377
7
State of Kerala V Anilachandran ,(2009) 13 SCC 565 (569)
8
State of Bihar V Hare Ram Prasad , 2007 CrLJ 96 (99)
9
Ramesh Kumar V State ,2010 CrLJ 85 (91) (Del –DB)
10
http://www.express.co.uk/comment/columnists/nick-ferrari/393559/Mother-jailed-for-giving-false-alibi-to-
protect-murdering-sons
11
http://www.bordermail.com.au/story/1754830/conviction-fine-for-false-alibi/?cs=53

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(2)WHEN IS THE EVIDENCE APPRECIATED IN RESPECT OF
ALIBI?
Where the accused claimed that he was away from the house during the commission of
offence but the contrary was proved, the alibi failed.12 Now the court would be slow to
believe in any counter evidence.13 Where the evidence of the eyewitness was corroborated
by other witnesses that the accused after the incident was absconding from the village , the
plea of alibi that the accused was not there and had gone to another city could not be
accepted.14 The uncorroborated oral evidence of the witness can’t be relied upon , specially
when the witness does not have any reason to give for being able to remember the exact
dates on which the accused is alleged to have come to the village or have left it.

If the evidence is good there has been no weakness detected by the court it should not be
given the go bye as held by the Allahabad High Court. If there is no weakness in the
prosecution evidence in the eyes of the court the two can not be true and the weakness must
be found somewhere, however difficult it might be. Now if no weakness is found in both the
evidence the benefit of doubt should go to the accused and not to the prosecution as a well
established alibi must be enough to show that the prosecution was not speaking the truth or
atleast there is some doubt regarding the truthfulness. When the defence of alibi breaks down
it is utterly believed that the accused was where the prosecution claims he was. However this
inference is drawn where defence of alibi breaksdown and not when it is disbelieved.

The evidence of highly interested witness supporting the plea of alibi is liable to be rejected.15
In a case out of three accused two took the plea of alibi , the victim received more than 19
injuries and therefore it was held that it was done by more than one miscreant and hence
defence of alibi was not tenable.16 Where the accused claimed to not be present in the house
but the witness heard his daughter crying that her father is beating her mother the claim of
alibi failed.17 Where the accused pleaded that he was hospitalized but the nurse who made
the entries was not examined the plea of alibi failed.18 In a case law the accused claimed that
he was in the hospital whereas the evidence collected from the doctors and nurses held that he
was not prescribed any medicine after the initial examination which is a conclusive proof that
he was not present during the time when the medicine was administered and hence the plea of
alibi was rejected19 Where the documents produced were of general nature and there was no
conclusive proof that the accused was not present at the site of occurrence.20 Similarly where
there was a possibility of the accused to come back in time to the place where the crime took
place as it was only 35 km away.21 The plea of alibi was rejected where there was no concrete

12
Brijlal Pd.Sinha V State of Bihar , AIR 1998 SC 2443
13
State of Gujrat V Chavda Manaji Chelaji , 2000 Cr LJ 1091
14
Dodo Majhi V State ,(1984) 88 Cal WN 312
15
Mangru V State , 1983 All LJ 232 (DB)
16
Poosaram V State of Rajasthan , 1984 Cr LJ 1848
17
Tulshiram v State of Maharashtra, 1984 Cr LJ 209
18
Dalel Singh v Jagmohan Singh, 1981 Cr LJ 667
19
Ram Bali v State of UP, AIR 2004 SC 2329
20
Bharagavan v State of Kerala, AIR 2004 SC 1058
21
Bachittar Singh v State of Punjab, (2002) 8 SCC 125

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or credible proof of the absence of accused from the place of crime.22 It is not necessary that
the plea of alibi would be accepted simply because it was accepted in respect of the other two
.A person claimed to be on guard duty on the day of occurrence. He claimed that he was on a
regular duty for a week. His contention was rejected on the ground that his signatures did not
match that on the attendance register, neither there was any sufficient proof that he was
present at school nor was this contention acceptable that he was appointed on regular basis
only for a week. This plea was rejected.23 Right to private defence in case where the plea of
alibi is taken by the accused .

22
Krishnan v State, (2003) 7 SCC 56
23
Jasbir v State of Haryana, (2002) 10 SCC 324

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 (3) RIGHT OF PRIVATE DEFENCE IN CASES WHERE PLEA OF
ALIBI IS TAKEN BY THE ACCUSED
We would be discussing in this section whether the right of private defence can be taken by a
person who has already taken plea of alibi. The question that would be answered in this
section has been in controversy and debated for a while and this doubt still exists in the
contemporary legal thinking. There have been two contradictory set of opinions regarding
this question. No right of private defence has been granted in the western legal system where
the accused has pleaded alibi. There have been instances in the Supreme Court where right of
private defence has been granted to people who have already taken plea of alibi.

3)THEORIES WITH RESPECT TO RELATIONSHIP BETWEEN PLEA

OF ALIBI & RIGHT OF PRIVATE DEFENSE

After going through the judgements it can be concluded that that there are two theories with
respect to relationship between plea of alibi and Right of Private defence i.e a rigid and
liberal approach. According to the liberal theory the accused should be allowed to take the
plea of right to private defence even where the plea of alibi is taken by him. But according to
the rigid theory if the person has raised the plea of alibi it means that he was not present
during the commission of offence and hence the question regarding right of private defence is
irrelevant.

RIGID THEORY

According to this when an accused has pleaded alibi and later on when he contends the right
of private defence they are not consistent with each other and hence the right of private
defence should not be extended to the accused. This theory originated from the judgement of
Calcutta High Court in the case of Emperor v Upendra Nath Das.24 and 4 decades later in
another decision of Calcutta High Court in the case of DhirendraNath v State25. In this case it
was held that if the accused claims that he was absent when the crime took place it is difficult
to believe that he was also excercising his right of private defence. The same decision was
further re-iterated in the case of Yusuf Sk. v. The State26 in this case the accused Yusuf was
charged with murder and he pleaded that he was not present during crime scene .It was held
that as the accused had already taken plea of alibi he was not entitled to the right of private
defence.

25
Emperor v Upendra Nath Das AIR 1952 Cal 621.
26
Yusuf Sk v The State, 1954 Cri LJ 774.

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This approach has been taken up in only limited number of cases with very minimal judicial
precedent. But it should be noted that the rigid theory is based on logical reasoning that how
can a person be at two different places at the same time. It is rigid in the sense that as the
person has already taken plea of alibi he cannot take the right of private defence.

LIBERAL THEORY

According to this theory even if the accused has pleaded alibi he must be given the benefit of
right of private defence. The reasoning for it is that the accused might have felt that it would
not have been necessary to take the right of private defence. If on bringing the whole
evidence the court is satisfied that the right of private defence must be granted even though
plea of alibi has already been taken, then the right of private defence must be granted.

The Division Bench of Mysore High Court had held that even though the right of private
defense as claimed by accused is inconsistent with plea of alibi but if as per the material on
record and circumstances of the case it can be inferred by the court that the accused had
exercised the rigt of private defense consistent with Section 105 of the Indian Evidence Act,
then the accused is justified in giving the benefit of private defense as the ulterior objective of
the court is to meet the end of justice.27

The same view was reiterated by the Hon’bleAllahabad High Court in the case of Rishi Kesh
Singh28 . In this case the accused pleaded alibi. During the cross examination the accused
suggested self defence. The court held that in view of the material on record and
circumstances of the case that whether the same would be admissible or not.

The decision of Gauhati High Court is similar to the decision of Mysore High Court in the
case of RajuShetty in the case of Sandhya Rani wherein the accused had pleaded alibi. The
High Court retearted the earlier decision of other High Courts and that if the circumstances
and material on record of the case suggest that right of private defence can be taken then the
accused should be given the benefit of that. Thus it was concluded in the decision that the
Plea of Alibi does not restrain or preclude the accused from claiming the defense of right of
private defense.29 In the leading case of Rajasthan High Court the similar issue came before
the Court and it was held by Justice KD Sharma that if the facts and the circumstances of the

27
State of Mysore v Raju Shetty, 1961 Cri LJ 403.
28
Rishi Kesh Singh &Ors.v The State, 1970 Cri LJ 32.
29
Smt. Sandhya Rani Bardhan v The State ,1977 Gau LR 36.

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case suggest that private defense was exercised by the accused then in that case the accused
cannot be deprived of that right only because he had earlier pleaded alibi.30

This issue finally came before the Hon’ble Supreme Court in the landmark case of
GottipullaVenkata Siva Subramanyam31 that the accused cannot be deprived of the right of
private defence only because he had already pleaded alibi, to meet the end of justice he must
be given the right of private defence. If the court thinks that according the facts and
circumstances of the case that accused acted in his private defence then it would be
admissible in the court of law.

(4)HOW IS THE DISTANCE AND TIME OF ABSENCE RELEVANT IN

PLEA OF ALIBI?

30
Karnail Singh v State of Rajasthan, 1977 Cri LJ 729.
31
GottipullaVenkata Siva Subramanyam v State of Andhra Pradesh,AIR 1970 SC 1079.

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The plea of alibi can be viewed from two point of views, firstly it can be regarded as traverse
of a crime which raises direct issue on the defendant’s guilt for example in a case of homicide
the victim is still alive. The second view is that it can be considered as traversing a single
element in the criminal charges alleged against the accused which is his presence at the time
and place during the commission of crime. Majority of the cases adopt the former view and
maintain that the burden of proof is upon the party asserting an affirmative fact. Until and
unless there is rebutting evidence to overcome alibi the only evidence before the jury to
counter balance the evidence of defendant is the incidental proof of time and place contained
in prima facie case.

Suppose the state has offered all the evidence which shows that the accused was present it is
insufficient to convince the jury beyond a reasonable doubt but preponderates over the
evidence of the defendant on that point. Should he loose the benefit of the evidence which is
diproving his guilt because it is out-weighed on point? The jury does not have any right of
disregarding any evidence until and unless they disbelieve it totally. The defendant’s
evidence of an alibi may and should be considered in connection with all the evidence in the
case by the jury. The general rule is that the state is required to convince the jury of the
participation of the accused in the crime beyond reasonable doubt time and place being the
essential elements of crime.

If the alibi is considered as solely the denial of a single necessary element in the charge it
would be illogical to put the burden of proof on the accused as this would require him to
prove that his criminal intent was absent. Time and place are essential elements of crime. The
state must prima facie prove them.

It is not at all necessary to be shown that the accused was elsewhere at the instance of the
offence or the whole of it would be a lengthy transaction. The facts that are important and
necessary to be considered evidence of alibi are the distance between the scene of crime and
the accused and the time that would be consumed in travelling from that place to the scene of
crime. The more distance between the crime scene and that of the accused the more doubtful
is the guilt. If distance not very large then as well the time and means of travel must also be
considered. If he could have participated then as well time and means of travel must be
considered –

The total time for the commission of crime has to be considered and the accused has to
convince the jury that it was impossible for him to com e to that place from where he was
within that time. This is almost equivalent to requiring him to prove his innocence beyond
reasonable doubt. It should be proved that the accused was present elsewhere throughout the
scene of crime.

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“ The length of the period is for the jury to determine upon the facts, including the distance
and the time and customary mode of travel.”32 If the time required to go from one place to the
other is an issue a witness can tell the time if he has travelled from that place to the other.33
“Dissimilarity of conditions and modes of travel may affect the weight, but not the
competency of such evidence.”34 If the precise time a train left a certain place on a certain
date is material, the evidence of the railroad officials that the company's rules do not permit
trains to arrive before their schedule time is inadmissible as hearsay.35

The accused may give a very general idea about what was talked about during the
conversation he had with the people at the place where he was at the time of the commission
of the offence and thus prove that he was somewhere else. However he cannot give details of
what he said and claim that that much amount of time was taken by him in order to prove his
alibi.36

If the residents of a town claim that he was there when the crime took place this evidence is
not admissible nor can he show that he was in the habit of frequenting the locality of the
alibi.37

It can be accused from the accused what he saw during the time when he was at a place away
from the scene of crime and then ask him what he saw over there then the state can call upon
the witness to get to know what actually was over there and can the impeach him.38

Hearsay evidence that he was seen in the locality where the crime was committed is not
admissible. Self serving declarations are not a part of res gestae, received to prove an alibi. “
The danger of permitting the accused thus to fabricate evidence for himself is clear”.
Therefore his statements regarding his whereabouts made after returning to his house after he
is absent covering the date of crime are inadmissible.

“The cases in generality hold that the accused does not need to in order that his evidence of
an alibi may be considered by the jury sufficient to aquit him establish it by a preponderance
of the evidence”

To reasonably satisfy the jury of the truth of this defence the alibi must be sustained by
credible evidence. It depends wholly upon the circumstances of the case what evidence would
be reasonably satisfactory, the jury are the sole judges of its weight and sufficiency. If it
appears clearly and cogently that the accused was present at the crime proof of an alibi has to
be equally clear and cogent. Even if the evidence of alibi is not clear it may with other facts

32
People v. Worden, 113 Cal. 569, 45 Pac. R. 844.
33
People v. Kelly, 35 Hun (N. Y.) 295, 30.
34
State v. Flint, 60 Vt. 304, 317.
35
People v. Mitchell, 94 Cal. 550, 554.
36
State v. Bedard, 65 Vt. 278, 284, 26 Atl. Re.
37
Schuster v. State, 80 Wis. 107, 118.
38
People v. Gibson, 58 Mich. 368, 371.

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raise enough doubt to aquit. . “ A reasonable doubt that the accused was present at the time
and place of the crime is a reasonable doubt of his guilt.”39

To be fully established and found as a fact by the jury all the evidence falling short of full
proof is to disregarded and it is required by the alibi to prove it beyond reasonable doubt.
This is certainly not the law.40

The accused should be acquitted if he succeeds by his evidence of alibi in raising a

reasonable doubt in connection with all the evidence.

Cautioning the jury.-

The jury should be instructed that there should be a rigid scrutiny to prove the evidence of
alibi. This is true of all evidence.41 Defence of alibi like any other defence may be easily
fabricated and if we talk about witnesses they can be honestly forgetful of times and places .
“While the jury may not disregard other evidence and concentrate their attention upon the
issue of the alibi,42the law does not regard evidence to prove an alibi with any greater degree
of suspicion than any other.” It is therefore an invasion of the province of the jury for the
court in its charge to instruct them that, as a rule of the criminal law, the defense of an alibi is
open to great and manifest abuse because of the comparative ease with which testimony to
support it may be fabricated, or that this defense is often resorted to by those who are guilty,
or that perjury, mistake, contrivance and deception are frequently employed and involved in
supporting it “ By virtue of the application of the principles involved in the rule falsus in uno
falsus in omnibus, a presumption of fact may arise in the minds of the jurors against the
accused when he is detected in deliberately giving false testimony to an alibi.”

In this case especially where he has only single defence

“ But aside from deliberate perjury on the part of the accused, or on the part of one of his
witnesses in endeavoring to prove the alibi, an unsuccessful attempt to substantiate this
defense is not to be regarded in law as a circumstance of much, if any, weight against the
accused.”The deliberate fabrication of evidence is always a circumstance pointing, though
never conclusively, to the guilt of the prisoner.' The mere fact that the prisoner or one of his
witness has sworn falsely does not prove in any respect that the evidence of the state in all
respects is true.' Generally failure by the accused to prove an alibi does not differ in its effect
from a failure on his part to prove any other material fact alleged by him.“ Where there is any
evidence tending to prove the alibi, it is sometimes, though not universally, held to be
reversible error for the court to refuse to charge.”

39
Harrison v. State, 83 Ga. 129, 13.5.
40
People v. La Munion, 64 Mich. 709.
41
Albritton v. State, 94 Ala. 76.
42
State v. Blunt, 59 Iowa 468.

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 CONCLUSION
As far as first question is concerned the approach and the decision of the Indian courts seems
to be more logical in the sense that even though an accused is not able to convincingly
establish his plea of alibi i.e. he was elsewhere it cannot be the sole criteria to determine the
conviction. It is a settled law that to prove alibi there should not be any minimal doubt in the
mind of the judge and obviously it is very difficult to prove the plea of alibi before the court
of law. If courts start giving a conviction for every case of false alibi then in that case no
person would plead alibi before the court of law.

Even though it was held by the Hon’ble Court in the case GottipullaVenkata that the accused
has every right to benefit from the right of private defense, however in my opinion the rigid
theory best suits the current situation in India. With the plethora of judgements pending, the
accused when pleading alibi and then trying to take the benefit of right of private defense is
making a mockery of the justice system and is abusing the process of law. Thus in my
opinion it is very much difficult to accept the opinion of the Supreme Court favouring the
liberal approach. Thus when an accused takes a plea of alibi or any such plea and later he
contends something which is inconsistent with the former one, there should not be a liberal
approach but a strict and a rigid approach to meet the ends of justice. Thus there should not
be parallel inconsistent defense for the accused i.e. not such defense which is contradicting
each other.

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 BIBLIOGRAPHY

Nishar Ad Fajmohmed Kaji V State of Gujrat –

The accused claimed that he was not present when the crime took place but he was at a
police bandobast later it was verified by the police constable that he went away during that
period and hence his plea was rejected. It has been held by the Hon’ble Supreme Court that
distance is very material factor in cases related to alibi as the plea is based on physical
impossibility of the accused at the scene of the crime.43

Ritesh Chakravarti V State of M.P-

Just because a person took a false plea of alibi doesn’t mean that he is responsible for the
offence. Even if an alibi is not proved, the court shall not record a judgement of conviction
unless the prosecution is found to have established its case

Dalel Singh v Jagmohan Singh

Where the accused pleaded that he was hospitalized but the nurse who made the entries was
not examined the plea of alibi failed

Ram Bali v State of UP

law the accused claimed that he was in the hospital whereas the evidence collected from the
doctors and nurses held that he was not prescribed any medicine after the initial examination
which is a conclusive proof that he was not present during the time when the medicine was
administered and hence the plea of alibi was rejected.

Yusuf Sk. v. The State

in this case the accused Yusuf was charged with murder and he pleaded that he was not
present during crime scene .It was held that as the accused had already taken plea of alibi he
was not entitled to the right of private defence.

GottipullaVenkata Siva Subramanyam-

The accused cannot be deprived of the right of private defence only because he had already
pleaded alibi, to meet the end of justice he must be given the right of private defence. If the
court thinks that according the facts and circumstances of the case that accused acted in his
private defence then it would be admissible in the court of law.

43
Munshi Prasad v. State of Bihar ,(2002) 1 SCC 351.

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