When Facts Not Otherwise Relevant Become Relevant — Plea of Alibi (s. 9) — BSA (Law of Evidence) Notes

When Facts Not Otherwise Relevant Become Relevant — Plea of Alibi (s. 9)

Alibi is Latin for “elsewhere”. The accused’s defence is simple and complete: “I could not have done it — I was two thousand kilometres away.” If true, it does not merely weaken the case; it destroys it, because a man cannot be in two places at once. Section 9 is the section that lets this “elsewhere” fact into the trial.

Some facts are, on their face, irrelevant — where a man was on a given day has nothing to do with anything, ordinarily. But such a fact can become decisive if it clashes with the prosecution’s story. Section 9 [IEA s. 11] admits these facts. It makes facts not otherwise relevant relevant in two situations:

If they are inconsistent with any fact in issue or relevant fact; or
If, by themselves or with other facts, they make the existence or non-existence of a fact in issue or relevant fact highly probable or improbable.

The famous application of the first limb is the plea of alibi. If the charge is that A committed a crime at Calcutta on a certain day, the fact that on that day A was at Lahore is inconsistent with his guilt — and s. 9 lets it in.

Now the four scoring points about alibi:

It is a rule of relevancy, not a “defence”. Alibi is not a plea like self-defence that the prosecution must disprove. It is a fact that, being inconsistent with guilt, becomes relevant under s. 9 — and it is for the accused to establish it.
The burden of establishing alibi is on the accused. He must prove it strictly and by cogent, satisfactory evidence of physical impossibility — not a vague suggestion that he was away. (The general burden of proving guilt beyond reasonable doubt still stays on the prosecution.)
The test is physical impossibility. The accused must show it was impossible, not merely improbable, that he was at the scene — the distance and timing must rule out his presence.
A failed alibi does not prove guilt. If the accused fails to establish his alibi, that failure does not by itself convict him; the prosecution must still prove its own case. A false alibi may, however, be treated as an additional circumstance against him.

🧩 WORKED EXAMPLE — the alibi problem

Facts. The prosecution says A committed a crime at Calcutta on 2 February. A leads evidence that on the same day he was at Lahore, participating in an event. Is this relevant, and what must A show?

Rule. Under s. 9, a fact inconsistent with a fact in issue is relevant; a plea of alibi must be established by the accused with cogent evidence of physical impossibility.

Apply. A’s presence at Lahore is inconsistent with his committing the crime at Calcutta, so it is relevant under s. 9. But A must prove it strictly — showing that the distance made his presence at the Calcutta scene physically impossible on that day.

Conclusion. The fact is relevant and, if established, is a complete answer. If A fails to establish it, the prosecution must still prove his guilt independently — the failed alibi alone does not convict him.

Decoy. Treating alibi as a “defence the prosecution must disprove” is the planted error; the burden of establishing alibi rests on the accused.

Section 9, BSA 2023: “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.”

In Simple Terms: A fact that would normally be beside the point becomes admissible if it clashes with the case (inconsistency) or strongly tips the odds for or against a disputed fact. The alibi is the textbook example of the “inconsistency” branch.

flowchart TD
    ROOT["Section 9 — facts not otherwise relevant"]:::root
    ROOT --> A["(1) Inconsistent with a fact in issue<br/>→ PLEA OF ALIBI"]:::leaf
    ROOT --> B["(2) Make a fact highly probable<br/>or improbable"]:::leaf
    A --> C["Burden on ACCUSED<br/>to prove strictly"]:::diamond
    A --> D["Test: physical IMPOSSIBILITY<br/>not mere improbability"]:::diamond
    A --> E["Failed alibi ≠ proof of guilt"]:::diamond
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Dudh Nath Pandey vs State of Uttar Pradesh (1981) — the plea of alibi must be proved with certainty so as to exclude the possibility of the accused’s presence at the scene; the burden is on the accused.
Binay Kumar Singh vs State of Bihar (1997) — alibi is not an exception (a special defence) but a rule of evidence under s. 11 IEA (now s. 9); the accused who sets it up must establish it, while the prosecution’s burden to prove guilt remains.

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