PLEA OF ALIBI
Author : Adv. Binay Adhikari
The term ‘Alibi’ is a Latin word which means ‘elsewhere’ or ‘somewhere else’. In criminal proceedings alibi is used as a form of defence by the accused against the commission of an alleged offence. When an accused makes a plea of alibi in a court he or she attempts to prove that he or she was in some other place at the time the alleged offence was committed. In general, a plea of alibi implies that the accused was physically not present at the scene and time of the commission of an offence due to the reason that he was present somewhere else.
Definition of Plea of Alibi:
Duhaime’s Law Dictionary defines Alibi as a defence to a criminal charge to the effect that the accused was elsewhere than at the scene of the alleged crime.
The Criminal Law Deskbook of Criminal Procedure states: Alibi is different from all other defences; it is based upon the premise that the defendant is truly innocent.
Essentials of Plea of Alibi:
Precisely, to essential components involves the disclosure of an alibi – adequateness and timeliness. In general, some other factors have to adhere as well:
- There must be an alleged offence punishable by law.
However, it must be noted that the plea of alibi is not maintainable in all the cases. Some of them are as under:
- This plea is not maintainable in tort. For instance in a defamation suit, contributory negligence cases.
- A plea of alibi is not applicable in matrimonial cases. For instance, suit for maintenance, suit for divorce.
- In some jurisdictions, a plea of alibi operates as an exception to the Right of Silence. Example Canadian Common Law.
- The person making the plea of alibi must be an accused in that offence.
- Alibi is a plea of defence (in respect of innocence of accused) by which the accused suggests to the court that he was somewhere else at the time of the commission of the alleged offence.
- The plea must prove beyond any reasonable doubt that it was impossible for the accused to be physically present at the scene of the offence.
- The plea must be backed by evidence supporting the claim of the accused.
Who may take a plea of alibi?
As a general rule, a person taking a plea of alibi must be accused of an alleged offence. The accused must plead his presence elsewhere at the time of the commission of the alleged offence.
When to raise the plea of alibi:
In order for a plea of alibi to be effective, it is always wise to make the plea at the earliest possible time in the initial stage of a case; this stage could be at the stage of framing of charge or preliminary hearing. However, in some jurisdictions, there may be a requirement that the accused disclose a defence prior to the trial. On the contrary, jurists in other jurisdictions have held an opinion that the mandatory early disclosure of alibis is unfair, possibly even unconstitutional.
Sections dealing with Plea of Alibi:
Plea of alibi is a rule of evidence recognized under Section 11 of the Indian Evidence Act, 1872.
“When facts not otherwise relevant become relevant: facts otherwise not relevant are relevant
- If they are inconsistent with any fact in issue or relevant fact;
- If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue all relevant fact highly probable or improbable.”
Further, Section 103 of the Evidence Act provides for Burden of proof as to particular fact which states that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Example: the question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, he was at New Delhi is relevant.
Lakhan Singh @ Pappu vs The State of NCT of Delhi, Delhi HC Crl Appeal No. 166/1999
The plea of alibi cannot be equated with a plea of self-defence and ought to be taken at the first instance and not belatedly at the stage of defence evidence. In any case, the appellant/accused gives no reason or explanations for not taking this plea of alibi at the earliest opportunity.
Binay Kumar Singh vs The State of Bihar, (1997) 1 SCC 283
We must bear in mind that alibi, 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 facts which are inconsistent with the fact in issue are relevant.
Sahabuddin & Anr vs the State of Assam, Criminal Appeal No. 629 of 2010
Once the court disbelieves the plea of alibi and the accused does not give any explanation in his statement under Section 313 CrPC, the Court is entitled to draw an adverse inference against the accused. At this stage, we may refer to the judgment of this Court in the case of Jitender Kumar v State of Haryana [(2012) 6 SSC 2014], where the Court while disbelieving the plea had drawn an adverse inference and said that this fact would support the case of the prosecution.
How can plea of alibi divert the whole case?
It is true and acceptable that the plea of alibi is not absolute with certainty. Sometimes it can amount to false evidence thus creating a major suspicion against the accused.
- Alibis which are inconsistent may render deception in several ways:
- In the first instance, by the law enforcement which affects the investigation.
- Secondly, it may affect prosecution by way of admission and cross-examination.
- Lastly, by judges, it may affect guilt judgment.
- Human memory is not constant. In the context of the inconsistency of memory as a human nature, a single error may lead to catatonic effect and ironically make an innocent’s individual alibi a proof of guilt.
Negative impacts of using false alibis:
Making a plea of alibi is easy but proving an alibi is altogether another matter. For instance,
- In some cases, there might be material evidence such as videotapes, audio files, papers and receipts which contradicts the plea of alibi. This evidence can turn the whole case upside down by raising scepticism in the mind of the judges.
- What if the person making a plea of alibi influences the witness to make a statement in his favour. In the process, the witness may give false alibi thus leading to the obstruction of justice.
- By making a false alibi, its credibility is diminished and the judge or jury may draw negative inferences from the alibi.
- A fabricated alibi is not only untrue but an intended creation by the accused of the purpose of misleading and deceiving the judiciary.
Is alibi a good defence or not?
- The purpose of the plea of alibi is not to establish a defence nor to prove anything, but merely to raise a doubt of the accuser’s presence or absence at the scene of the crime.
- As a good defence, if a plea of alibi is made at the initial stage accompanied by strong evidence which is independent and impartial suggesting the same, it has the potential to call for an acquittal or discharge of the accused.
- As a bad defence, a plea of alibi relates to the physical presence of the accused at the scene of the crime. Therefore it is possible that the accused may have the knowledge of the commission of an offence and may even amount to criminal conspiracy punishable by law under Section IPC.
- At the same time, circumstantial evidence to establish alibi does not guarantee its acknowledgement by the court.
- The defence of alibi is not an affirmative defence in the sense that it is an assertion to raise a reasonable doubt as to whether the defendant is actually a saint or sinner.