Question: I have been made accused in a case under Section 307, 34 IPC which took place at Pune. But, on the date of the offence, I was appearing in an examination at Nagpur in Maharashtra. How can I prove my defence? What is the level of evidence that I have to lead? Will I have to prove my innocence or the prosecution has to prove my guilt first?
Answer: The facts mentioned by you imply that you have to take the plea of alibi, which means that you were “elsewhere” when the offence took place at Pune, in such a manner that it was impossible for you to be present at the scene of offence.
The plea of alibi is relevant and admissible under Section 11 of the Evidence Act, which lays down as under:
“11. When facts not otherwise relevant become relevant.—Facts not otherwise relevant are relevant—
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) 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.
(a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant.
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.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by either B, C or D, is relevant.”
In the case of Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, the plea of alibi was explained by Supreme Court by observing that:
“… 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.”
In the case of Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, the Supreme Court observed 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 has been reaffirmed in the cases of Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165, and Jumni v. State of Haryana, (2014) 11 SCC 355 : 2014 Cri LJ 1936.
Likewise, in the case of Mohinder Singh v. State, AIR 1953 SC 415 : 1953 Cri LJ 1761, the Supreme Court held that the standard of proof required in regard to a plea of alibi must be the same as the standard applied to the prosecution evidence and in both cases it should be a reasonable standard.
In the above case of Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, the Supreme Court stressed that defence witnesses are entitled to equal treatment with those of the prosecution, and that the courts ought to overcome their traditional, instinctive disbelief in defence witnesses; quite often, they tell lies but so do the prosecution witnesses.
In the above case of Jumni v. State of Haryana, the Supreme Court held that it is not as if the accused person is required to prove his innocence, in fact, it is for the prosecution to prove his guilt. It was further held in this case 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.”
Coming back to your question, as held by the Supreme Court in the above cases, firstly the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. But once the prosecution succeeds in discharging the burden it is incumbent on you as the accused, to prove your plea of alibi (of being at Nagpur instead of at Pune on the day of the offence) with absolute certainty so as to exclude the possibility of your presence at the place of occurrence. If the evidence adduced by you is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding your presence at the scene when the occurrence took place, you as the accused would be entitled to the benefit of that reasonable doubt.
While it is not possible for me to comment on detailed facts of your case (without knowing them fully), you can provide evidence of (1) the date and time of examination at Nagpur; (2) your admit card; (3) you attendance / signature in the examination hall at Nagpur; (4) evidence of some other student / candidate in the same examination hall on that date / time; (5) date-sheet or time-table of the examination; (6) certificate of the authority conducting examination showing your presence in examination at Nagpur on that day; (7) your travel details (such as reservation in train); (8) result of the examination; (9) showing that after appearing in examination at Nagpur on that day, it was impossible to travel to Pune at the time of the offence; etc.
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