Introduction:
Object of Section 11 of the Indian Evidence Act, 1872 is to admit those facts which will help in sorting fact in issue even though they are irrelevant and this section enlarges the scope of admission of relevant facts. But limitation is put by the provisions of section 5 to section 55 i.e., if that fact is relevant under these provisions then any irrelevant fact will be admissible under section 11. At first sight, it would appear that this section would make every fact relevant because of the wording of clause (b) But care must be taken not to give this section an improperly wide scope by a liberal interpretation of the phrase “highly probable or improbable”. A fact is neither declared to be relevant, nor declared to be not relevant. It may be relevant under sec. 11 if the requirements of that section are fulfilled.
Section 11 of Evidence Act :
According to Section 11 of the Indian Evidence Act, 1872 facts not otherwise 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 or relevant fact highly probable or improbable.
Illustrations:
- 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.
- 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.
Under Section 11(1) the proof of the existence of some fact becomes relevant as it disproves the fact in issue. There are 5 classes of cases that are considered:
Plea of Alibi:
Section 11 of the Evidence Act recognized a defence of Pea of Alibi. The term Alibi is a Latin term which implies elsewhere or somewhere else. Alibi is used as a defence in criminal proceedings by the accused against the commission of the alleged offence. The accused makes this plea in the court so that he or she can prove his or her innocence that at the commission of the offence, he or she was in some other place. In general, plea of alibi implies that the accused was not physically present during the commission of the offence; he was elsewhere or somewhere else.
Illustration (a) attached to Section 11, IEA is the example of plea of alibi. It says that 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.
Essentials of Plea of Alibi:
In general, some of the factors to be adhered are as follows:
- There must be an allege offence punishable by law.
- The person making the plea of alibi must be an accused in that offence.
- It is a plea of defence where the accused states that he or she was somewhere else at the commission of the offence.
- The plea must prove beyond reasonable doubt that it was impossible for the accused to be physically present at the time of the commission of the offence.
- Making the plea of alibi must be from an accused in that offence.
However, the plea of alibi is not maintainable in all cases. Some of them are as under: This plea of alibi is not maintainable in tort such as defamation, contributory negligence cases. A plea of alibi is not applicable in matrimonial cases such as divorce, maintenance etc. A plea of alibi operates as an exception to the Right of Silence.
It is always wise to raise the plea of alibi as early as possible in the initial stage of a case. This initial stage could be the stage of framing of charge. But in some jurisdictions, it may be required by the accused to disclose the defence prior to the trial.
Dudh Nath Pandey v State of UP: The Supreme Court said that the plea of alibi must be proved with absolute certainty, so as to make the presence of the accused at the crime scene, impossible. In Baij Lal v Ram Pratap27 a seller divided his land in two and sold it in two different transactions to two different persons. The court held that the first sale deed will be considered and it was highly probable that the that the rest of the land was intended to be sold to the second buyer.
Binay Kumar Singh v. The State of Bihar: 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. The defence witness stated that the accused was present at his brick kiln and signed certain challan papers, not showing the time of their issue, held alibi had not established.
Non access of husband to show legitimacy of issue;
Since legitimacy of the child implies a cohabitation between husband and wife, for disproving the legitimacy the husband has to prove that he had no cohabitation with his wife during the probable time of begetting as he was in abroad.
For example: A has a baby C, 6 months after her marriage, B her husband believes that the child is illegitimate. It would be relevant for him to prove that he had no access to his wife before the wedding.
Survival of the deceased;
The victim was alive on a date subsequent to the date on which it is alleged that the accused committed his murder, is relevant under clause (1) of sec. 11, as the same is inconsistent with the charge against the accused.
For example: If A is accused of murdering B on 10 October 2010, and A offers to prove that he saw B on the 31st of October. Such information would be relevant.
Commission of the crime by a third person
Where a person accused of an offence wants to show that the offence was committed by some other person, in the circumstances in which the offence could not have been committed by both of them, the fact is relevant under cl. (1) of sec. 11.
For example: A is charged with the murder of B. However, A can prove that C murdered B, because the fact that C murdered B is brought forth now becomes relevant.
Self-infliction of harm:
The victim committed suicide, is a fact relevant under cl. (1) of sec. 11 to show that he was not murdered by the accused.
For example: A is charged with the murder of B. A can prove that B committed suicide which resulted in his death becomes relevant.
Case Laws:
JAYANTIBHAI BHENKARBHAI STATE OF GUJARAT [(2002) 8 SCC 165]
In this case, the question regarding plea of “alibi” under Sec. 11 and burden of proof under Sec. 103 of the Act was raised.
The court observed that the word ‘alibi’ is of Latin origin and means “elsewhere.” It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime.
Alibi is not an exception (special or general) envisaged in IPC or any other law. It is only a rule of evidence recognized in Sec. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Burden if Proof flows in this concept of Alibi from Sec, 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence.
Munshi Prasad v State of Bihar (2002) 1 SCC 351
It was held that the presence of a person at a distance of about 400-500 yards from the place of occurrence cannot be termed as “presence elsewhere”. The plea of alibi is based on physical impossibility of being at the scene of crime and so the distance is a very material factor.
Dasari Siva Prasad Reddy v Public Prosecutor, High Court, A.P. (AIR 2004 SC 4383)
It was held that failure on the part of accused to establish plea of alibi does not help the prosecution and it cannot be held that the accused was present at the scene of occurrence, the prosecution must prove it by positive evidence. Thus by merely failure on the part of the accused to establish the plea of alibi shall not lead to an inference that the accused was present at the scene of occurrence.
Bikam Pandey v State of Bihar (AIR 2004 SC 997)
It was held that the plea of alibi cannot be accepted in favour of an accused merely on the ground that the same was accepted in relation to co-accused.
In Gade Lakshmi Mangraju v State of Andra Pradesh (AIR 2001 SC 2677)
It was held that the presence of a fingerprint at the scene of occurrence is positive evidence but the absence of a fingerprint is not enough to foreclose the presence of the persons concerned at the scene.
In this case, two persons were involved in a murder; the fingerprints of only one of them were found on an almirah and he did not challenge the evidence when produced by the prosecution. Held that the other accused could not challenge it; he was not heard to say that the absence of his finger impression was a guarantee of the fact of his absence from the scene of the crime.
Kalu Mirza v Emperor, 1909 37 Cal. 91
Where thé question was whether a person was a habitual cheat, the fact that he belonged to an organisation which was formed for the purpose of habitually cheating people was held to be relevant, and it was open to the prosecution to prove against each perso: that the members of the gang did cheat people.
Conclusion:
The words of section 11 are very wide and it may be safely laid down that all evidence which would be held admissible by English law, would be properly admitted under this section of the act. But it should be remembered that they must be read subject to the other sections of the act and therefore, the fact relied on must be proved in accordance with the provisions of the Act.
