Conspiracy, Plea of Alibi and Other Relevant Facts

Introduction

The relevancy of a fact lies in its connection to another facts under consideration. A fact becomes relevant only when it is connected with other facts in the manner provided by the Indian Evidence Act, 1872 (IEA) under Chapter II. A relevant fact is a factum probandi, which is an evidentiary fact that directly or indirectly proves or disproves the facts in issue.

Meaning of Facts

Section 3 of the Indian Evidence Act, 1872 (IEA) defines fact as:

• Anything, state of things, or relation of things, capable of being perceived by senses.
• Any mental condition of which any person is conscious.

Relevancy of Facts

Chapter II of the IEA deals with the relevancy of facts under provisions of Section 5 - 55. The relevant facts are provided under Sections 5 - 16. The provisions discussed here under are:

• Things said or done by conspirator in reference to common design. (Section 10)
• When facts not otherwise relevant become relevant. (Section 11)
• In suits for damages, facts tending to enable Court to determine amount are relevant. (Section 12)
• Facts relevant when right or custom is in question. (Section 13)
• Facts bearing on question whether act was accidental or intentional. (Section 15)
• Existence of course of business when relevant. (Section 16)

Section 10 - Things Said or Done by a Conspirator in Reference to Common Design

• Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

It can be explained by following illustration:

1. Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.
2. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were stranger to him, and although they may have taken place before he joined the conspiracy or after he left it.

The present provision mentions the admissibility of anything said, done or written by the conspirators during the course of conspiracy in reference to common intention.

Conspiracy is defined by the Indian Penal Code, 1860 under Section 120A and its ingredients are:

• There must be an agreement between two or more persons who are alleged to conspire, and
• The agreement should be to do or cause to be done:
  • (a) An illegal act, or
  • (b) An act which is not illegal but has been done by illegal means.

Case Laws

• Badri Rai v. State of Bihar (1958):
  • The SC in this case held that this section is intentionally enacted to render the acts and statements of a co-conspirator admissible as evidence against the entire group of conspirators, given the nature of the crime.
• Mirza Akbar v. Emperor (1940):
  • In the present case a lady was in an extramarital affair with a man. Both got the husband of the lady killed. There were exchanges of letters between the two during the conspiracy for the murder and the lady made the statements before the magistrate as well after she was arrested for conspiracy.
  • The Privy Council held that the letters were relevant under Section 10 as their terms were consistent with a conspiracy but the statement to the magistrate was held to be not relevant, as it was made after the object of the conspiracy had already been attained & come to an end.

Section 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.
• It gives relevancy to those facts which are irrelevant as such but become relevant because they are inconsistent with relevant facts and their existence in themselves or in connection with other facts make some fact in issue or a relevant fact highly probable or improbable.

It can be explained by following illustration:

(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.

Section 11 of the Evidence Act recognizes the defence of Plea 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 court so that he or she can prove his or her innocence, that at the commission of the offence, he or she was at some other place.

Case Laws

• Binay Kumar Singh v. The State of Bihar (1996):
  • The SC held that we must bear in mind that Alibi is only a rule of evidence recognized under Section 11 of IEA and that facts which are inconsistent with the fact in issue are relevant.
  • In this case, 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, it was therefore held that alibi had not been established.
• Munshi Prasad and others v. State of Bihar (2001):
  • The SC in this case held that the presence of accused at 400-500 yards distance from the place of occurrence cannot be considered.

Section 12 - In suits for Damages, Facts Tending to Enable Court to Determine Amount are Relevant

• The suit in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded, is relevant.
• This provision provides for the determination of damages when suits for the damages are claimed by the party.
• The court can determine the amount of damages in an action based on contract or tort.
• The section lays down that evidence tending to determine, i.e., increase or decrease in damages is admissible.
• Section 55 of IEA lays down the conditions under which evidence of character may be given in civil cases to affect the amount of damages.
• Similarly, Section 73 of the Indian Contract Act, 1872 also lays down the rule governing damages in actions in contract.

Section 13 - Facts Relevant when Right or Custom is in Question

• Where the question is as to the existence of any right or custom, the following facts are relevant:
  • (a) Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence.
  • (b) Particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or departed from.
• Right – Section 13 applies to all kinds of rights i.e., public, private, corporeal or incorporeal.
• Custom – It means a practice which has existed from time immemorial and has obtained the force of law.
  • Section 3(a) of Hindu Marriage Act, 1955 mentions it as “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.
• Transaction – It means doing or performing of any business or management of affairs, it also includes things already done and completed.
  • In Channo Mahto v. Jang Bahadur Singh (1957): Patna High Court stated that a ‘transaction’ denotes something which has been concluded between persons by a cross or reciprocal action as it were.
• Instance – It depicts a thing which has once occurred. This provides for a particular instance:
  • In which right was claimed.
  • In which existence was asserted.

It can be explained by following illustrations:

• The question is whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours are the relevant facts.

Section 15 - Facts Bearing on the Question Whether act was Accidental or Intentional

• When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

It can be explained by following illustrations:

(a) A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

• The question is, whether this false entry was accidental or intentional.
• The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

Ingredients

• The question is whether an act was accidental or intentional.
• The fact that it formed part of a series of similar occurrences.
• Is relevant to show that the act was not, accidental but it was intentional.

Case Law

• Amrit Lal Hazara v. Emperor (1915): Evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment is not admissible unless upon the issue whether the acts charged against the accused were designed, or unless to rebut a defence otherwise open to him.

Section 16 - Existences of Course of Business when Relevant

• When there is the question of whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.
• Under this Section, when the ordinary course of a particular business is proved, the court is asked to presume that, on the particular occasion in question, there was no departure from the ordinary and general rule.
• It can be explained by following illustration:
  • (a) The question is whether a particular letter was dispatched.
  • The fact that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant.

Ingredients

• When there is a question whether a particular act is done or not.
  • There existed a natural course of business, according to which it naturally would have been done.
  • It will be presumed that such an act was done.
• The burden of proof that the act is not done is upon the party who alleges it.

Other Relevant Facts

The IEA provides certain other relevant facts under Sections 5,6,7,8,9,14 as well.

• Evidence may be given of facts in issue and relevant facts. (Section 5)
• Relevancy of facts forming part of same transaction. (Section 6)
• Facts which are the occasion, cause or effect of facts in issue. (Section 7)
• Motive, preparation and previous or subsequent conduct. (Section 8)
• Facts necessary to explain or introduce relevant facts. (Section 9)
• Facts showing existence of state of mind, or of body, or bodily feeling. (Section 14)