IMPORTANT POINT
The burden of proof for a plea of alibi lies with the accused, who must establish it with absolute certainty after the prosecution proves its case.

JUDGMENT :

SAURABH LAVANIA, J.

1. Heard counsel for the applicant and Sri Nirmal Kumar Pandey, learned A.G.A. for the State.

2. By means of the present application, the applicant has assailed the pending criminal proceedings against him arising out of Case Crime No. 89/2023, under Section 323, 364, 143, 147, 341, 342, 427 IPC, Police Station Hasanganj, District Unnao and summoning order dated 28.06.2023, passed by Additional Chief Judicial Magistrate, Court No. 3, Unnao whereby the applicant has been summoned under Section 323, 147, 143 IPC. The relevant portion of the order dated 28.06.2023 reads as under:

3. The applicant has assailed the impugned order on the sole ground that the applicant was not present at the situs/place of crime, as appears from the submissions advanced by the counsel for the applicant, as also from the averments made in Para 12 and 13 of the affidavit filed in support of the application. The same are extracted hereunder:

“12. That being a matter of fact the petitioner was not there at point of Offence at Unnao and was there at Lucknow at his Rented Accommodation Near Budheshwar Temple P.S. Para Dist. Lucknow.

13. That the Petitioner has also stated his version before the investigating officer by means of the Clarification Letter and also has handed over a Pen drive Containing the CCTV Footage of him Being at the Residence at Lucknow along with Photographs depicting the same. Copy of the Letter and Photographs are annexed as Annexure No. 6 to this petition.”

4. From the aforesaid, it is apparent that the case of the applicant is based on the plea of Alibi.

5. Sri Nirmal Kumar Pandey, learned A.G.A. for the State also stated that the plea of ‘Alibi’ is a question of fact to be entertained and decided only after evidence of the prosecution takes its evidence to prove the incident, and the participation of the accused as well.

6. The Latin word ‘Alibi’ means ‘elsewhere’. Plea of ‘Alibi’ is a rule of recognized in Section 11 of the Evidence Act. The plea of Alibi disputes the case of prosecution. Thus plea of ‘Alibi’ is question of fact. It is settled law that when an accused raises plea of ‘Alibi’ the burden is on accused to prove the same. A plea of ‘Alibi’ is a question of fact which is required to be proved by the accused at the stage of trial to show that he/ she was elsewhere and was falsely implicated and the accused is also required to prove the same by adducing appropriate evidence.

7. Under Section 103 of the Evidence Act the burden rests on the accused who raises the plea of ‘Alibi’. Section 103 of the Evidence Act provides:

“103. 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.

Illustrations

(b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.”

8. In Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, the Hon’ble Apex Court observed as under:

“23. 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:

(i) the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime.

(ii) The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi.

(iii) The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.

(iv) 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 possib