Section 9, BSA — 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 a particular place on a certain day

The fact that on that day A was at a distant place is relevant. The fact that near the time when the crime was committed A was at a distance from the place, which would render it highly improbable, though not impossible, that he committed it, is relevant. This is the plea of alibi, and it operates under both limbs

(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 B, C or D, is relevant. This is the exclusion of alternatives, operating under the second limb

Nature of the connection

Logical incompatibility. If the fact is true, the fact in issue cannot be true

A matter of degree. The fact renders the fact in issue very much more or very much less likely

Typical use

Alibi; proof that the article was elsewhere at the material time; proof that the document was executed after the alleged date

Exclusion of every alternative culprit; proof of exclusive access; statistical or scientific improbability

Test

Are the two propositions capable of standing together?

Is the probative force high, and the connection immediate?

Illustration

(a) — presence at a distant place

(b) — the crime must have been committed by one of four persons, and it was not committed by three of them

⚠ Why the courts read the section narrowly

On a literal reading the second limb would make almost any fact relevant, since almost any fact affects the probability of another to some degree. That would render Sections 4 to 8 and 10 to 14 unnecessary and would defeat the rule of exclusive relevancy in Section 3. The courts have therefore imposed two limitations, neither of which appears in the text but both of which are settled: the connection between the fact and the fact in issue must be immediate rather than remote, and the probative force must be high, as the word 'highly' in the section itself indicates. A fact that merely tips the scale slightly is not relevant under Section 9.

Route of relevancy

Facts establishing the presence of the accused elsewhere are relevant under Section 9, as inconsistent with the fact in issue and as rendering commission highly improbable

Section 9 and Illustration (a)

Supporting provision

Facts fixing the time or place at which a fact in issue happened are relevant

Section 7

Burden

The burden of establishing the plea lies on the accused, the fact being especially within his knowledge

Section 109

Standard

Preponderance of probabilities. The accused is not required to establish the plea beyond reasonable doubt

V.D. Jhingan; Harbhajan Singh

Strictness of proof

The plea must be established so as to exclude the possibility of the accused's presence at the scene; a weak or half-hearted alibi is worthless

Dudh Nath Pandey; Binay Kumar Singh

Effect of failure

The failure of an alibi does not by itself establish the prosecution case; the prosecution must still prove its case beyond reasonable doubt

Binay Kumar Singh

Timing of the plea

It should be raised at the earliest opportunity; a belated plea invites scrutiny, though delay alone is not fatal

General principle

📖 Dudh Nath Pandey v. State of Uttar Pradesh, (1981) 2 SCC 166

Held: The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the 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. The burden of establishing the plea rests on the accused, and it must be proved with certainty so as to completely exclude the possibility of his presence at the place of occurrence.

Ratio: The plea rests on physical impossibility, and the accused must exclude the possibility of his presence rather than merely suggest an alternative.

📖 Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283

Held: The Latin word alibi means 'elsewhere', and the plea 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 the burden of proving the guilt of the accused is on the prosecution, and that burden does not shift. But when an accused adopts the plea of alibi, the burden is on him to establish it, and the failure of the plea does not entitle the court to convict him if the prosecution has not otherwise discharged its own burden.

Ratio: Alibi is a plea of extreme improbability of participation; the accused must establish it, but its failure does not supply the deficiency in the prosecution case.

⚠ Electronic material tendered in support of an alibi

Relevance under Section 9 is only the first question. Electronic material — call detail records, location data, footage — must then be proved in accordance with Sections 57, 61 and 63. Where it is tendered otherwise than as primary evidence within the Explanations to Section 57, the certificate prescribed by the Schedule to Section 63(4) is required. A plea of alibi resting on an uncertified printout of call records is liable to fail on the mode of proof, whatever its intrinsic force.

Exclusion of alternatives

Where the field of possible actors is closed, evidence eliminating each of the others makes the guilt of the remaining person highly probable

Illustration (b); a theft from a locked room to which only four persons had access

Exclusive access or opportunity

Evidence that no one else could have had access renders commission by another highly improbable

Overlaps with the opportunity limb of Section 5

Physical or scientific impossibility

Evidence that the alleged act could not have occurred in the manner asserted

Ballistic evidence showing the shot could not have been fired from the stated position; medical evidence inconsistent with the alleged weapon

Non-existence of an essential condition

Evidence that a fact necessary for the alleged event did not exist

That the vehicle alleged to have been used was not in running condition on the date

Improbability of a transaction

Evidence that a party had no means to enter into the transaction alleged

That the party had no funds at the material time, making the alleged loan improbable

Character

Specific heads of relevancy, each defined by the nature of the connection

Residuary; applies only where the fact is 'not otherwise relevant'

Connection required

The particular connection described in each section — same transaction, cause, motive, conduct, common design

Inconsistency, or a high degree of probability or improbability

Direction

Ordinarily supports the case of the party leading the evidence

Frequently used by the defence, to displace or contradict

Degree of probative force

Not expressly stipulated

Expressly required to be high

Typical example

The victim's cry; marks of a struggle; abscondence

The plea of alibi; exclusion of every other possible actor

Denial of execution of a document

That the alleged executant was elsewhere on the date of execution, or was physically incapable of signing

Alleged loan or advance

That the lender had no funds at the material time, rendering the advance highly improbable

Alleged delivery of goods

That the consignment was recorded as remaining in the warehouse on the date of alleged delivery

Disputed date of a transaction

That the stamp paper or the form used did not exist on the date the document bears

Alleged oral agreement

That the parties had no occasion to meet during the period in which the agreement is said to have been made

Facts in Issue and Relevant Facts — Section 3

The rule of exclusive relevancy that Section 9 must be read consistently with

Facts Necessary to Explain or Introduce Relevant Facts — Section 7

Facts fixing time and place, which support a plea of alibi

Things Said or Done by Conspirators — Section 8

The preceding head of relevancy

Standard of Proof in Civil and Criminal Cases

The standard on which an accused must establish a plea of alibi

Section 10, BSA

Facts enabling the court to determine the amount of damages

Sections 57, 61 and 63 and the Schedule, BSA

Proof of electronic material tendered in support of an alibi

Section 109, BSA

Burden of proving a fact especially within the knowledge of a person