DEFENCE AVAILABLE TO ACCUSED IN CRIMINAL TRIALS
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According
to wigmore, the facts which would normally fall under this section
are of five common cases, though there may be some more conceivable
cases.
1)
The absence of the person charged at the place of occurrence(alibi);
2) The
absence of a husband (non-access) – a variety of the preceding;
3) The
survival of an alleged deceased person after the supposed time of
death;
4) The
doing of a crime by a third person; and
5) The
self-infliction of the harm alleged (see Wigmore Section 136-144, 2nd
Ed).
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If
an object is secreted by the accused and recovered from his conscious
possession and is found to be an incriminating object, it is relevant
under Section 8 or Section 11(2).
More
physical presence of the accused in proximity or in close proximity
to the object cannot by itself be an incriminating circumstances
unless it can be held that he was in conscious and intelligent
possession of that object. Merely because he is the head of the joint
family, or the owner of the house, he cannot be credited with
constructive knowledge lacks the element of mens rea or criminal
intent which is essential for an offence.
It
was held : “ A person cannot be said to be in possession of an
article which he or she does not realise is or may be in her handbag,
in her room or in some other place, over which she had control.
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3.
ALIBI
Meaning
of – The plea of Alibi postulates the physical impossibility of the
presence of the accused at the sence of offence by reason of his
presence at another place. The plea can, therefore, succeed only if
it is shown that accused was so far away at the relevant time that he
could not be present at the place where the crime was committed;
distance thus would be a material factor in the matter of
acceptability of the plea of alibi and the distance of 400-500 yards
between the place of occurrence and the place where the accused
claimed to be present cannot be said to be 'present elsewhere'. Alibi
is based on the theory that the fact of presence elsewhere is
essentially inconsistent with the presence of the accused at the
place and time of the alleged occurrence, and the participation in
it.
Where
the accused handed over his diary to the police and claimed that
certain entries establish his presence at a different place on the
right in question, it is relevant under illus. (e) of Section 8 read
with this section.
Denial
by an accused of an assertion made by his employer that the accused
was on leave of absence from duty on the date of offence, does not
amount to pleading of alibi. A plea of alibi of the accused cannot be
taken into account merely because a certificate has been produced by
the accused from his employer to the effect that the accused was
working in the mill at the relevant time of the incident unless he
produces some persons on behalf of his employer or examines himself
in order to mark the said document.
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4.
ALIBI-APPLIES TO CIVIL CASES ALSO
WIGMORE(Vol.!,
Section 136, p. 570) states that the argument of alibi is not
confined to criminal acts but may be equally applied to the disproof
of civil acts, such as the execution of a deed.
5.
PLEA OF ALIBI IS TO BE TAKEN UP AT A VERY EARLY STAGE.
In
Sahdeo Shham v. State of Vindhya Pradesh; it was held that a request
to call the witness to prove alibi at the very end of the trial would
appear to be vexatious and dilatory, unless the possibility of making
such a request has been indicated at the earlier stages. A defence of
alibi, if true, is to be raised at the earliest moment.
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6.
PROOF OF ALIBI
Strict
proof is required to prove the plea of alibi and the burden was on
the accused. In the instant case, strict proof of impossibility of
the presence of the accused at the place of occurrence was not
available and hence the plea was not sustainable. The accused persons
taking the plea of alibi have to make out the case of their alibi and
to satisfy the jMagistrate that they were not present at place of
occurrence on the day and time of incident.
Where
a plea of alibi is set up and it utterly breaks down, it is a strong
inference that, if the prisoner was not in fact where he says he was,
then in all probability, he was where the prosecution says he was.
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The
plea of alibi must be proved with absolute certainity, so as to
completely exclude the possibility of the presence of the person
concerned at the place of occurrence. Alibi is a plea which must be
proved to the fullest satisfaction of the Court and faor the same the
person who takes such plea must put forward cogent evidence in this
regard as the burden of the same heavily lies on him. Where there was
no contemporaneous document was produced to prove the plea of alibi,
it was not accepted. In a case Supreme Court observed that absence
from the factory did not mean absence from the place of crime, the
same being nearby.
The
Allahabad High Court held that if the evidence by the accused in
respect of his plea of alibi creates a reasonable doubt about the
genesis of the occurrence, it would be sufficient to give benefit of
doubt to the accused.
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WIGMORE
observes : “ The defendant's case is often much weakened by an
unsuccessful attempt to prove an 'alibi'. But this result happens,
not because of any implied or technical admission involved in the
attempt but because of fraud and subornation of perjury manifested in
the attempt............... In no case can the attempt be held to
involve an admission of crime, nor the simple failure to establish it
afford any presumption of the defendant's presence at the time and
place when and where the crime was committed......It can have no
effect upon the question of his presence at the place charged,
otherwise than by disclosing falsehood and prevarication and thus
affording general evidence of guilt.
The
fool-proof alibi is no doubt the must effective answedr to a charge.
A false ploea of alibi is very dangerous, the result of which is like
a bubble if successfully picked rebounds on him who has taken it,
which while smashing his defence, strengthens the prosecution.
For
the purpose of arriving at the conclusion that the plea of alibi has
been exstablished, not only the defence evidence in support of the
plea but also the prosecution evidence should be examined. The
accused has to prove the plea of alibi under Section 103 of this Act,
and it is not for the prosecution to prove that the accused was
absent from duty on the date of occurrence.
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The
plea of alibi must cover the whole time of the transaction or atleast
so much period as to render the presence of the accused improbable at
the time of the crime.
The
Privy Council, in Bhuboni Sahu v. the king, observed: “The tendency
to include the innocent with the guilty is peculiarly prevalent in
India, as judges have noted on innumerable occasion, and it is very
difficult for the court to guard against the danger. An India
villager is seldom in a position to place cogent evidence of alibi.
If he is charged with having taken part in a crime on a particular
night when he was in fact asleep in his hut, or guarding his crops,
he can only rely, as a rule, on the evidence of his wife, members of
his family, or friends to support his story, and their evidence is
interested and not likely to carry weight. The only real safeguard
against the risk of condemning the innocent with the guilty lies in
insisting upon independent evidence which in some measure implicates
each accused.
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RIGHT OF PRIVATE DEFENCE
Plea-Admissibillity
of. - Plea of private defence as set up by the accused is
rejected where accused states that he inflicted stab injury by
pen-knife while deceased was making imminent threat of attack on his
person by elongated weapon whereas inflicting of stab injury is not
possible by means of pen-knife.
(Sellauthu
v, State of Tamil Nadu, 1995 Cr LJ 2143 (Mad).
Accused
has no right to claim private defence when it is proved that the
deceased was unarmed and was not an aggressor. Conviction for murder
is deceased was unarmed and was not an aggreessor. Conviction for
murder is proper.
(K.
Sudhakaran V. State, 1995 Cr LJ 721 (Ker). )
Act
in self-defence. - (i) When the deceased fired the shot at the
accused, the accused was left with no alternative other than to fire
the shot back in self-defence. The accused has, thus, acted in
self-defence and cannot be held guilty for the offences he was
convicted. His firing the shot at the deceased was in self-defence
and that exonerates him completely from the guilt.
(Jagdish
Chandra V. State of Rajasthan, 1987 Cr. LJ 649 : (1987) 2 Crimes
482.)
(ii) Right
of private defence cannot be claimed for defence of body of his
father.
(
State of M.P., vs. Mohandas. 1992 Cr. LJ 101 (M.P.)
Burden
of proof. - A case of right of private defence appears or the
right of private defence is taken at the stage of investigation or
trial it is the obligations of the prosecution to negative the
circumstances and destroy the defence plea to sustain the conviction
of the accused.
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(Subodh
Tewari V. State of Assam. 1987 (1) Crimes 791 (gau).)
Criminal
trespass – whenever a criminal trespass is committed in the very
presence of the person in actual possession of land. Such person does
require a right of private defence of property and in exercise of
that right he is entitled to use such force as it is considered
necessary to maintain his own possession and to turn away the
intruder.
{Paras
Ram v. State of H.P., (1985) 1 Crimes 112 (HP)}
Free
fight. - In
case of free fight, right of private defence is not available.
{Shashi
Behera v. State of Orissa, 1986 (1) Cr. LJ 1145 (ori)}
Inflict
more harm than necessary is no defence.-
If there is no right of private defence, there can be no question of
exceeding that right. If the said right is there, no person
exercising his right of private defence can inflict more harm on
assailant than is necessary for the purpose of his defence.
{Kaliya
v. State of Rajasthan, 1985(1) Crimes 235 (Raj)}
Right
of private defence.- (i)
Private defence of property is available to the person who is in
settled possession of land against aggressor.
{State
of H.P. v. Govind Ram, 1985 Cr.LJ9H.P.) :1985 Sim LC 291 : (1985) 2
Crimes 120}
(ii)
Whether a criminal trespass is committed in the very presence of the
person in actual possession of land such person does require a right
of private defence of property and in exercise of that right he is
entitled to use such force as it is considered necessary to maintain
his own possession and turn away the intruder.
{Paras
ram v. State of H.P, (1985) 1 Crimes 112 }
Unpreparedness
for attack is the best proof. -
Unpreparedness for attack is the best proof of non-aggression and
that unpreparedness on the part of the complained party is there in
the instant case. Held, the plea of private defence put forward by
the accused persons is thus only a tell-tale.
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Right
of private defence- (i) When the appellant saw that the aggressors
were numerically stronger, they started the assault and his wife was
assaulted by one of them by means of a strike of a lathi, as the case
may be, it was normally difficult on his part to remain, calm and
cool. On the other hand, like a normal human being having the
instinct to protect himself and his dear and near ones from
approaching danger, it was possible that he was convinced from the
surrounding circumstances that unless he would strongly resist to the
attack and strikes, he will be further assaulted and may be killed.
The
appellant of his own self and that of his wife is protected by
Section 100, I.P.C. Therefore, he is entitled to acquittal.
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(ii) Even
if on the basis of material as it stands, the right of private
defence of the accused appellant is not established still the
material produced in cross-examination and circumstances discussed
above do indicate that the incident might have happened in a manner
in which it was suggested by the accused-appellant and in this view
of the matter it could not be said that the prosecution has been able
to establish the offence against the appellant beyond reasonable
doubt.
(iii) The
inmates clearly had a right of private defence against the intrudes
who tried to extract money by force.
(iv)
When prosecution failed to establish offence beyond reasonable
doubt, accused entitled to be acquitted.
{Seriyal
Udayar v. State of T.N. 1987 Cr.LJ 1058 : AIR 1987 SC 1289 : (1987)
2 Crimes 57 : (1987) Cr.LR (SC) 229}
(v)
Such right could be claimed by husband and in-laws of victim a
young-lady of 25 years in injuring persons who dragged her out of
house at odd hour of night by force with an intention to seduce her
to sexual intercourse.
{Prakash
Chandra v. State of Rajasthan 1991 Cr.LJ 2566 (Raj) }
(vi)
When deceased inflicting knife injuries on accused lady, she must be
considered to have acted in exercise of her right of self-defence
while returning injuries on deceased.
{Nabai
Bai v. State of M.P, 1992 Cr. LJ 526 (SC) }
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