NATIONAL LAW UNIVERSITY ODISHA

SEMESTER V

LAW OF EVIDENCE PROJECT

ON

CASE ANALYSIS
JAYANTIBHAI BHENKARBHAI V. STATE OF GUJARAT

SUBMITTED TO: - MR RAMAKRISHNA DAS

Assistant professor of Law

SUBMITTED BY: - NIKHIL AJMERA (2015/BA/029)

UTKARSH PANDEY (2015/BA/062)
 TABLE OF CONTENT

INDEX OF AUTHORITIES ....................................................... ERROR! BOOKMARK NOT DEFINED.

INTRODUCTION .......................................................................................................................... 2

FACTS OF THE CASE .................................................................................................................. 3

ISSUES INVOLVED ...................................................................................................................... 4

APPLICABLE PROVISIONS ......................................................................................................... 4

ARGUMENTS FOR APPELLANT .................................................................................................. 4

DECISION OF HIGH COURT AND TRIAL COURT ....................................................................... 5

JUDGEMENT ............................................................................................................................... 6

CONCLUSION AND ANALYSIS .................................................................................................... 7

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 INTRODUCTION

The Latin word alibi means elsewhere and that word is used by the accused for his defence
in the way that when the crime was committed by the accused, he was so far from the place of
crime that he was not possible or highly improbable for the person to commit that particular
crime. It is a general rule of criminal law that if the accused have caused any injury to another
person, the burden or responsibility is on the person who is alleging that particular injury and
hence, the burden is on the prosecution who is fighting the case, to make sure and prove that
the accused was there at the scene of crime where incident took place.1

The plea of Alibi is not directly envisaged in the Indian Evidence Act or Indian Penal Code.
But Section 11 of the Indian Evidence Act relates to the plea of Alibi, although it does not
directly states this plea of Alibi. Section 11 states that those facts which are inconsistent with
the facts in issue are relevant.2 The plea of Alibi is a rule of evidence included in the Section
11 of Indian Evidence Act, 1872 and not as an exception or defence under Indian Penal Code.
The plea of Alibi is taken by the person who is observed to be an accused, when it is highly
impossible for the accused to present at the place of the crime scene. The plea of Alibi is only
allowed to be taken by the accused when the prosecution has fully discharged his duty to prove
the crime beyond reasonable doubt.3 If the prosecution has failed to prove the charges beyond
reasonable doubt, the accused is not allowed to take the plea of Alibi because at that point of
time, it is not required as prosecution himself is not able to prove charges against accused
beyond reasonable doubt, which is a necessary requirement under criminal law.

The burden of proof would not shift merely because the accused has pleaded the defence of the
plea of Alibi. The plea of Alibi is accepted only by the court, till the time when the burden of
proof on the part of prosecution or deceased lawyer has been fully discharged without any
default in the series of events and Alibi has to be pleaded at the earliest opportunity by the
accused. The defence of Alibi comes into picture, once the prosecution succeeded in
discharging the charges against the accused person.4 The Burden of proof in the case of Alibi
shifts or move away from prosecution to the person who is taking the plea of Alibi and that
person who has taken this plea has to prove that it was highly improbable for the person to
commit that particular crime as he was far away for that particular crime scene and that very

1
Mukesh & Anr v. State for Nct of Delhi & Ors, 2017(3) SCALE 356.
2
Section 11, Indian Evidence Act, 1872.
3
Binay Kumar Singh v. The State Of Bihar, (1997) 1 SCC 283.
4
Vijay Pal v. State (GNCT) of Delhi, (2015) 4 SCC 749.

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thing will exclude chances of the accused at the crime scene or at the place of occurrence of
crime. The plea of Alibi has to be prove without any doubt and if there is any in the occurrence
of event which create the doubt in the mind of court, then the plea of Alibi is rejected. If the
accused is able to prove by the occurrence of events which made it impossible for the accused
to be present at the scene of crime5 and creates the doubt in the findings of the prosecution,
then the court accepts the plea of Alibi6.

One of the case on Section 11 read with Section 1037 of Indian Evidence Act, 1872 i.e. on the
Plea of Alibi is Jayantibhai Bhenkarbhai v. State of Gujarat, which deals with the
impossibility of the accused to be at the crime scene, which allows the accused to take the plea
of Alibi. This case deals with the specific issues of Alibi and the Supreme Court in this cases
discusses the important aspects of this defence i.e. when, where and how it can be taken and
admitted in the court of Law.

FACTS OF THE CASE

The accused no. 1 Singha Magan came to house of Lalji Rajia on 6.7.1989 around 6pm in the
evening with the purpose of getting hold of some liquor for his consumption. The accused no.
1 came to know through Ushniben, wife of Lalji that Lalji is not home and had gone outside
for some work. Accused no. 1 asked for liquor from Ashwin, minor son of Lalji Rajia to which
Ushniben objected and abstained Ashwin from providing liquor due to which verbal altercation
took place between accused no.1 and Ushniben in which accused no.1 used foul and indecent
language and insisted on getting his demand for liquor fulfilled. Lalubhai and his brother
Kantibhai who were the next door neighbours of Lalji Rajia entered the scene and accused for
Singha Magan (accused no.1) of harassing Ushniben in the absence of Lalji Rajia. Lalubhai
then told him to leave the locality immediately and while accused no.1 was leaving the house,
accused no.1 threatened Lalubhai and said that I will see you later.

Accused no.1 and his people came to Lalubhais house on the same day around 8pm. There
were 8 persons alongwith accused no.1 who came to Lalubhais house and if we go by the story
of prosecution and one amongst them was Jayantibhai Bhenkarbhai, the accused-appellant. The
people who came to the house were armed with some or the other weapon. The Deceased was
beaten badly by the accused persons and the witness of the incident were brothers of the

5
Mohd. Sahabuddin & Anr v. State of Assam, (2012) 13 SCC 213.
6
Munshi Prasad and Ors. v. State of Bihar, (2002) 1 SCC 351.
7
State Of Haryana v. Sher Singh & Ors, AIR 1981 SC 1021.

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deceased. After assaulting the deceased, all the accused persons fled away. One of the brother
of the deceased, Thakorebhai goes to one person named Channabhai Dhirubhai and briefs him
about the whole incident and after which that person advised him to lodge a report in the police
station. Both went to the Ukai Police station and lodged the F.I.R around 6 a.m. on 7.7.1989.
Lalubhai (deceased) succumbed to his injuries after the incident. It was told to police that there
were 22 injuries marks on the body of the deceased out of which 3 were incised wounds and
remaining were abrasions and minor injuries, according to the post-mortem.

The accused-appellant, Jayantibhai Bhenkarbhai when came to know that he has been accused
of committing the assault denied his presence in the crime scene which took place in the
deceaseds home. The defence taken by him was that he was not in the village when the incident
took place, he had gone to Ahmedabad and from their proceeded towards the Capital of Gujarat
i.e. Gandhinagar and therefore to present before ADC in a case of Election Appeal which took
place on 6.7.1989 in Gandhinagar. Jayantibhai was charged under Section 302/149 of the IPC
alongwith 4 other accused. He took the defence of alibi under Section 11 of Indian Evidence
Act, 1872. The High Court and Trial Court, both assigned same reason for setting aside the
plea of Alibi of the accused. The High Court was of the opinion that the plea was not proved
beyond doubt which can ease out all the possibility of being the accused at the place of the
commission of crime.

ISSUES INVOLVED

- Whether Jayanti Bhai was involved in the unlawful assembly as well as assaulted deceased
person?
- Whether the plea of Alibi under Section 11 of Evidence Act be made out in this case?

APPLICABLE PROVISIONS

- Section 11, Indian Evidence Act, 1872.

- Section 409, Indian Penal Code, 1860.
- Section 149, Indian Penal Code, 1860.
- Section 302, Indian Penal Code, 1860.

ARGUMENTS FOR APPELLANT

- The counsel for the appellant contended that Jayantibhai was not in Singpur when the
incident took place and was in Gandhinagar so that he could attend the hearing of an
election appeal which was to take place in the office of ADC. According to Defence

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 Witness-5, Ramanbhai, proceedings began on time and there was no delay as the Additional
Development Commissioner was on time and the hearing of accused appellants case began
around 11:30 a.m. and lasted till 2 p.m. in the afternoon.
- According to the records maintained in the office of Addl. Development Commissioner,
the accused-appellant (Jayantibhai Bhenkarbhai) was present with his counsel and there
was record for the same as both had signed in token as a proof of attending the office of
Addl. Development Commissioner and of having participated in the hearing.
- The counsel further contended that the accused-appellant had gone to a zoo at Ahmedabad
for about half an hour and had bought 2 tickets for himself and Dineshbhai. After this, the
accused-appellant went to Gandhinagar to meet Rahulbhai who worked in the Secretariat
and there were signature of accused-appellant wherein his name was mentioned along with
his signatures.
- The accused returned back to Ahmedabad around midnight, Manekbhai and Dineshbhai
who went along with the accused-appellant to the bus station at Ahmedabad and the
accused-appellant reached Singpur village in the morning of 7.7.1989. The accused
appellant had produced the bus tickets as well as a proof that he had boarded the bus around
1:00 a.m. and reached Singpur in the morning of 7.7.1989. The Prosecution witness in the
cross examination admitted that the bus usually takes around 8-9 hours as the distance is
about 300 km.
- The Counsel contended that the incident took place around 8 p.m. while the F.I.R was
lodged at 6 a.m. in the presence of Channabhai Dhirupbhai who was the political rival of
the accused-appellant. The accused-appellant as soon as was made aware of accusation
against him took the defence of alibi by informing the investigating officer of the necessary
and important facts.

DECISION OF HIGH COURT AND TRIAL COURT

The High Court and Trial Court, both assigned same reason for setting aside the plea of Alibi
of the accused. The High Court was of the opinion that the plea was not proved beyond doubt
which can ease out all the possibility of being the accused at the place of the commission of
crime. Although the High Court in its judgement held that the prosecution has proved the
involvement of the accused beyond reasonable doubt. The only thing which made the High
Court not to accept the plea of Alibi was that the nature and conduct of the accused appear to
the court to be quiet unnatural as he did not appear on the day of filing of FIR i.e. 7.7.1989, to

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inform the investigating officer that he was being falsely included and implicated because of
the fact was that when the incident took place he was in Ahmedabad.

JUDGEMENT

The Supreme Court in this particular has set aside the judgement of High Court and held that
the defence of alibi is applicable and has been successfully pleaded by the accused and
therefore the court acquitted the accused, Jayantibhai Bhenkarbhai. As the general principle of
Criminal Law stands that the burden of proving the commission of the offence would lies on
the prosecution or who is alleging the crime and it would be understood by the simple fact that
since the accused has taken the plea, it is a responsibility on him to prove that it was impossible
for him to commit that particular crime. The defence of alibi is taken up by the court of law
only when the burden which lies on the prosecution has been fully discharged without any fault
or default on his part. If deceased lawyer or prosecution is not prove the crime committed by
accused then there is no need to look into the defence of alibi.

It is well settled principle that the burden of establishing the plea of alibi and making the court
to believe that it reasonably not possible or not probable for the accused to commit the crime.
The Supreme Court in the case of Dudh Nath Pandey v. State of U.P8stated that the plea can
take up the accused if he is able to show to court by his evidences and series of acts that at the
time of commission of crime, it was possible for the accused to commit that crime in all possible
circumstances. Thereafter only, the plea can successful in making up the defence of Alibi.

In the case of Munshi Prasad v. State of Bihar9, the accused contested that he was at a distance
of 400-500 yards from the place of occurrence and was attending a Panchayat meeting, the plea
of alibi was held to be not successful because it could have been quite possible for the accused
to commit the crime and be back on his seat in the meeting, the distance being not an impossible
distance for that purpose.

In the case of Tulsiram Bhanudas Kambale v. State of Rajasthan10, the plea of alibi was made
out when the accused was discharged from a hospital situated around 160 km away from the
place of incident and was discharged only 1.5 hours before the incident. The court said that it
would not have been possible for the accused to reach the place of incident which was 160 km
in just 1.5 hours where the only mode of transport left for his disposal was bus.

8
Dudh Nath Pandey v. State of U.P., (1981) 2 S.C.C 166.
9
Munshi Prasad v. State of Bihar, AIR 2001 SC 3031.
10
Tulsiram Bhanudas Kambale v. State of Rajasthan, 2000 Cri LJ 1560 (Bom).

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The court said that in the present case, the evidence produced by the accused creates a probable
doubt which is enough for the accused to get the benefit of doubt and defence is entitled to that
very person. The Court therefore in the present case arrives at the conclusion that at the time
of the commission, the accused was in the state of Gujarat which is accepted by the court also
in the judgement of High Court, hence it is possible any circumstance to be at scene which took
place in the village, Singpur. Therefore, in this case the accused appellant must get the benefit
of doubt and was therefore acquitted. The court took notice of the fact that the High Court had
held 5 person guilty under section 149 of IPC and therefore, after the acquittal of the accused
appellant, the remaining number of accused left will be 4 due to which the aid of Section 149
of IPC falls to the ground.

CONCLUSION AND ANALYSIS

In the present case, the Court held that the plea of Alibi has been consistent and reflected in
several documents of undoubted veracity as also substantiated by the testimony of such
witnesses who do not have any animus to falsely depose in favour of the accused. There is
documentary evidence which further adds in the defence of plea of Alibi. Therefore, the
Supreme Court acquitted the accused in this particular case.11

In our opinion, this judgement was correctly delivered with all the ambiguity set aside. The
Court in its judgement said in the paragraph 19 of the judgement that the duty is on the court
to balance the evidences adduced by the prosecution for the guilt of the accused and evidences
adduced by the accused for the defence of the Alibi. The adduced evidences by the accused
must be of such quality and standard that it creates a doubt and establish such sequence of
events which could prove that the accuseds presence at the scene of the crime is impossible
and creates a doubt on the findings of the prosecution. The presence of doubt in the findings is
enough to take the plea of Alibi and on the basis of such plea, the court has power to grant
acquittal. But the court further in this case held that strict proof is required for establishing the
plea of alibi.12 Any break in the series of the events can be a ground for the rejection of Alibi.13

Section 103 of the Indian Evidence Act provides that the burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence.14 In the Criminal

11
Banerjea D, Banerjee SR and Konar N, Criminal justice and Supreme Court (Allied Publishers, in collaboration
with the West Bengal National University of Juridical Sciences 2005).
12
Shaikh Sattar v. State Of Maharashtra, (2010) 8 SCC 430.
13
Jumni v. State of Haryana, (2014) 11 SCC 355.
14
Section 103, Indian Evidence Act, 1872.

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Law system, the prosecution and defence findings are balanced against each other, and if the
balance is more towards the accused, then the prosecution case would not succeed and the
accused would be entitled to the defence of the Alibi and the accused would be entitled to doubt
created in the mind of the judge, hence the plea of Alibi would be applicable.

We are of the opinion that the Supreme Court was correct in setting aside the judgement of
High Court and Trial Court as if after creating the reasonable doubt in mind of judge and
prosecutions findings, the Court has not admitted the plea of Alibi. The High Court has said
that the High Court while appreciating the defence evidence, has arrived at a positive finding
that the accused appellant has been able to prove by his evidence his presence at about 11.00
a.m. at Gandhi Nagar in the office of Additional Development Commissioner. Thus, even in
the opinion of the High Court, the plea of the accused that he had on the date of the incident
gone to Ahmedabad to take part in the hearing of his appeal fixed before Additional
Development Commissioner is not false and at least at 11.00 a.m., he was present thereat.15

This shows the inconsistency adopted by the High Court in this Court that even after admitting
that the accused was at other place but they rejected only on the ground that the accused has
not pleaded during the F.I.R. Therefore, the Supreme Court was correct in setting aside their
judgement as the plea of Alibi only requires that the accused is able to create a doubt in the
mind of judge by his events with strict proofs, then the accused is entitled to the plea of Alibi,
otherwise not.16 The plea of Alibi has been adopted by the Court in the present case is correct
because the accused through his series of events was able to prove that it was impossible for
the accused to be at the crime scene by taking into account every possible circumstance.

15
Jayantibhai Bhenkaarbhal v. State of Gujarat, 2002 Supp (2) SCR 255, (2002) 8 SCC 165.
16
Narendra Singh & Anr v. State Of M.P., AIR 2004 SC 3249.

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