IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2153 OF 2011
Vijay Pal ... Appellant
Versus
State (GNCT) of Delhi ... Respondent
J U D G M E N T
Dipak Misra, J.
In this appeal, the assail is to the judgment and order dated
31.8.2009 passed by the High Court of Delhi in Criminal Appeal No. 417 of
2001 whereby the Division Bench has dismissed the appeal while affirming
the judgment and order dated 17.01.2001 of the learned Additional Sessions
Judge, Delhi in Sessions Case No. 27 of 1998 whereunder the trial Court had
convicted the appellant under Section 302 of the Indian Penal Code (for
short "the I.P.C.") and sentenced him to suffer rigorous imprisonment for
life.
2. Filtering the unnecessary details the case of the prosecution is that
the deceased, Savitri, had entered into wedlock with the appellant herein
prior to almost eleven years of the date of occurrence i.e. 2.11.1997. The
parental home of the deceased was situated at a distance of half a
kilometer. On the fateful day i.e. 2.11.1997 about 11:00 p.m., Seema, PW-
3, daughter of the deceased, aged about ten years, came running to the
house of her grandfather Shivcharan, PW-8, and informed him as well as
Satish, brother of the deceased, PW-1, that her father was threatening to
burn her mother. The information compelled PWs 1 and 8 to rush to the
house of the deceased and, as the factual matrix would show, PW-1, being
young in age, reached the house of his sister earlier than his father and
found his sister was burning and she told him that it was the accused-
appellant who had put her ablaze by pouring kerosene. The brother poured
water on the deceased in order to extinguish the fire and thereafter took
her to Deen Dayal Upadhyay Hospital where she could not be admitted due to
lack of facility and thereafter they brought her to Safdarjung Hospital
where she was admitted. Despite availing treatment, she breathed her last
on 3.11.1997 about noon. It is necessary to mention here that after the
deceased was taken by her father and brother to the hospital, two
neighbours, namely, Shanker Lal and Surender, PW-2 and PW-4 respectively
went to the Police Station at Mangol Puri and gave the information about
the incident by DD-73 dated 2.11.1997 on the basis of which, the S.I.
Vijender Singh, PW-21, went to the place of the occurrence where he met PW-
3, the daughter of the deceased, and came to learn that her parents had
quarreled and her mother had suffered burn injuries and was taken to the
hospital.
3. In the meantime, information was received at the police station from
Safdarjung Hospital that the deceased had been admitted there and on the
basis of the said information, the police rushed to the hospital where they
met PWs 1 and 8. As the prosecution case would further unfurl after the
death took place they proceeded with the investigation, seized the burnt
clothes, a quilt, one plastic cane, one match-box and match stick and sent
the dead body for post mortem. The investigating agency in course of
investigation arrested the husband on 03.11.1997 and after recording the
statements of number of witnesses laid the chargesheet for the offence
punishable under Section 302 IPC before the competent Court, which in turn
committed the matter to the Court of Session and eventually it was tried by
the learned Additional Sessions Judge.
4. The accused abjured his guilt and pleaded that he was not at home as
he had gone to his sister's place, Shyamwati, DW-1 at MJ-1/61, Vikas Puri,
Delhi and claimed to be tried.
5. The prosecution in order to substantiate the charges leveled against
the accused person, examined as many as 21 witnesses and got number of
documents exhibited. On the basis of the ocular and the documentary
evidence, the learned trial Judge came to hold that the prosecution had
established the charge levelled against the accused to the hilt and
accordingly convicted him under Section 302, I.P.C and imposed the sentence
as has been stated hereinbefore.
6. On an appeal being preferred, the High Court reappreciating the
evidence and placing reliance on the oral dying declaration and the
testimony of the brother and further accepting the post mortem report found
that the learned trial Judge had really not faulted in recording the
conviction. Being of this view, it dismissed the appeal.
7. We have heard Ms. Nupur Choudhary, Advocate (Amicus Curiae) for the
appellant and Mr. W.A. Quadri, counsel for the State.
8. It is submitted by Ms. Nupur Choudhary, learned Amicus Curiae that
the learned trial Judge as well as the High Court has erroneously recorded
the conviction against the appellant though PW-3, the daughter of the
deceased, had not supported the case of the prosecution and she being the
principal witness, the accused deserved to be acquitted. It has been urged
by her that High Court has flawed by placing reliance on the oral dying
declaration of the deceased when she had suffered serious burn injuries,
and in such a situation it could not be possible on her part to tell
anything to her brother. She has seriously criticized the judgment of the
High Court in not accepting the plea of alibi advanced by the accused which
had a solid foundation, for the fateful day was "Bhaiya Dooj" and,
therefore, the accused had gone to his sister's place as per the tradition.
9. Mr. Quadri, learned counsel for the State, per contra, would contend
that though the daughter of the deceased, PW-3, has turned hostile yet her
evidence cannot totally be brushed aside as both the prosecution and the
defence can rely on such parts of the testimony which are favourable to
them. It is his further submission that the oral dying declaration which
has been stated by the brother of the deceased in his testimony has been
proven beyond any trace of doubt and despite the roving cross-examination,
he has remained absolutely firm and nothing has been elicited to discard
his version and, therefore, neither the learned trial Judge nor the High
Court has faulted in placing reliance on it. Pertaining to the plea of
alibi, learned counsel would submit that the said plea has not been
established by the accused as required under the law and the material
brought on record by the prosecution do clearly demonstrate that at the
relevant time he was at home. In essence, it is urged by him that when
these aspects are appreciated in a seemly manner, the cumulative effect
would go a long way to show that the appellant has been appositely
convicted by the learned trial Judge and the High Court has absolutely
correctly concurred with the same.
10. To appreciate the rivalised submissions raised at the bar, we have
perused the judgments of the trial Court and the High Court with concerned
anxiety and cautiously scrutinized the evidence on record. As we find,
there are basically seven witnesses whose evidence are important, they are
Satish, brother of the deceased, PW-1, Shivcharan, father of the deceased,
PW-8, Dr. G.K. Chaubey, who conducted the post mortem, PW-5, Seema,
daughter of the deceased, PW-3, Shanker Lal, PW-2 and Surender, PW-4 who
informed the police at the first instance and Vijender Singh, PW-21, the
sub-Inspector who recorded the statement. At this juncture, it is
necessary to mention that apart from PW-3, PWs 2, 4 and 8, were also
declared hostile by the prosecution and were cross-examined by the state.
In this backdrop, it is to be seen whether the material brought on record
is sufficient enough to sustain the conviction on a scrutiny of the Exbts.
PW-1/A, PW-1/B, PW-1/D, PW-1/E, PW-1/F and Exbt. P-2 that were seized.
11. From the oral evidence and the seized items from the place of
occurrence, it is quite vivid that the deceased had suffered burn injuries
which lead to her death. It was PW-3, the daughter of the deceased, who
witnessed the quarrel and rushed to the home of her grandparents. The
learned trial Judge has put the relevant question to her to find out
whether she was in a position to understand the questions and depose in
Court. In her evidence, she had stated that on the fateful day about 11.00
p.m. her mother was preparing food for the children and for the said
purpose she was pouring kerosene oil in the stove as it was empty and
thereafter when she tried to light the stove, the kerosene oil was not
coming from the nozzle of the stove, then the deceased inserted a pin in
the nozzle and the oil sprinkled on her and in the process she caught fire.
On being declared hostile, she was cross-examined. It is relevant to note
here that she has first deposed that she was not aware who had removed her
mother to the hospital and thereafter changed her stand stating that her
uncle had removed her mother. As her testimony would show she has not
mentioned whereabouts of her father at the time of the incident. Her
ignorance about how the mother was shifted to the hospital shows that as
the High Court has correctly analysed, she has not spoken anything about
her father in order to protect him. Keeping in abeyance whether the plea
of alibi taken by the accused is proven or not to be dealt with at a later
stage, we think it apposite to scan the evidence of other witnesses. PW-1,
the brother of the accused, has unequivocally deposed that after getting
the information from Seema, PW-3, his father and he rushed to the house of
the deceased. As is evincible from the testimony, he reached the house of
the sister first and found she was burning and she told him that his
brother-in-law had poured kerosene and put her ablaze. She has also stated
that the children should not be given to the accused. He has, in detail,
spoken about going to the hospital and how the site plan was prepared and
the items were seized in presence of the witnesses. In the cross-
examination, no suggestion has been given about the absence of husband in
the house, contrivance of the dying declaration by him or anything which
would create a dent in his testimony. What has been sought to be brought
in the cross-examination is that no one was present in the room of the
deceased and certain other questions which have nothing to do with the
incident. It has been suggested to him that his sister and the accused had
kept Rs.90,000/- with his father, PW-8, for purchasing a house and as they
refused to return the money, they had, getting an opportunity, falsely
implicated the accused. It has also come out in the cross-examination that
the accused was a habitual drinker and gambler and his family was supported
by the in-laws.
12. At this stage it would be appropriate to state that the trial court
and the High Court have placed reliance on the post-mortem report. Dr.
G.K. Choubey, PW5, who had conducted the post-mortem on the dead body of
the deceased had found the following injuries:-
"Superficial to deep burn injury over all the body surface area
including scalp, skin peeled off at various places, margins red
underneath tissues bright red and there was blackening of skin over
various area. Skin was peeled off at soles, but not at palms.
Venisection at left leg above medial malleolus was present."
It was 100 per cent antemortem deep burns. Internal examination
revealed that Larynx contained soot particles and rest of the organs
were found to be congested."
13. In the cross-examination he has categorically denied the suggestion
that the injuries received by the deceased could have been sustained
because of kerosene oil from the stove fell on her body due to the pinning
of the stove and also by fall of a tin of kerosene oil on the floor. He
has deposed without any equivocation that the burn injuries sustained by
the deceased were not possible due to accidental burns. The High Court has
taken note of the FSL Report, Ext. PW 20/B, from which it is evident that
the analysis by gas liquid chromatography showed, kerosene oil residues
were found on the scalp hair of the deceased. It is apt to note that the
presence of kerosene on the scalp hair of the deceased and presence of dust
particles in the larynx of the deceased clearly evince that kerosene oil
was poured on the skull of the deceased which could not have happened by
accident. The testimony of the daughter, Seema, PW-3, a young girl of ten
years that the kerosene oil accidentally spilled on the body of her mother
is thus absolutely unbelievable. We are disposed to think so when we
weigh the medical testimony vis-a vis the ocular testimony. There is no
dispute that the value of medical evidence is only corroborative. It
proves that the injuries could have been caused in the manner as alleged
and nothing more. The use which the defence can make of the medical
evidence is to prove that the injuries could not possibly have been caused
in the manner alleged and thereby discredit the eye-witnesses. Unless,
however the medical evidence in its turn goes so far that it completely
rules out all possibilities whatsoever of injuries taking place in the
manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot
be thrown out on the ground of alleged inconsistency between it and the
medical evidence. It is also true that the post-mortem report by itself is
not a substantive piece of evidence, but the evidence of the doctor
conducting the post-mortem can by no means be ascribed to be insignificant.
The significance of the evidence of the doctor lies vis--vis the injuries
appearing on the body of the deceased person and likely use of the weapon
and it would then be the prosecutor's duty and obligation to have the
corroborative evidence available on record from the other prosecution
witnesses. It is also an accepted principle that sufficient weightage
should be given to the evidence of the doctor who has conducted the post-
mortem, as compared to the statements found in the textbooks, but giving
weightage does not ipso facto mean that each and every statement made by a
medical witness should be accepted on its face value even when it is self-
contradictory. It is also a settled principle that the opinion given by a
medical witness need not be the last word on the subject. Such an opinion
shall be tested by the Court. If the opinion is bereft of logic or
objectivity, the court is not obliged to go by that opinion. That apart,
it would be erroneous to accord undue primacy to the hypothetical answers
of medical witnesses to exclude the eyewitnesses' account which are to be
tested independently and not treated as the 'variable' keeping the medical
evidence as the 'constant'. Where the eyewitnesses' account is found
credible and trustworthy, a medical opinion pointing to the alternative
possibilities cannot be accepted as conclusive. [See: Solanki Chimanbhai
Ukabhai v. State of Gujrat[1], State of Haryana v. Ram Singh[2], Mohd.
Zahid v. State of T.N.[3], State of Haryna v. Bhagirath[4] and Abdul Sayeed
v. State of M.P.[5]]
14. Having stated about the medical evidence that has been brought on
record and how such an evidence is to be valued, we think it apt to dwell
upon the oral dying declaration which has been placed reliance upon by the
trial Court as well as the High Court. As per the evidence of the
brother, Satish, PW-1, he after reaching the place of occurrence found his
sister ablaze and she had stated that her husband has poured kerosene on
her and put her ablaze. There is material to show that the father,
Shivcharan, PW-8, arrived after his son. The prosecution has explained
about the delayed arrival of the father.
15. The submission of the learned counsel for the appellant is that the
oral dying declaration lacks intrinsic truth and it does not deserve
acceptance. At this juncture we think it appropriate to refer to certain
authorities how an oral dying declaration is to be scrutinized.
16. In the case of Laxman v. State of Maharashtra[6], the Constitution
Bench has held thus:
"The juristic theory regarding acceptability of a dying declaration is
that such declaration is made in extremity, when the party is at the
point of death and when every hope of this world is gone, when every
motive to falsehood is silenced, and the man is induced by the most
powerful consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the weight to be
given to this species of evidence on account of the existence of many
circumstances which may affect their truth. The situation in which a
man is on the deathbed is so solemn and serene, is the reason in law
to accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Since
the accused has no power of cross-examination, the courts insist that
the dying declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness. The
court, however, has always to be on guard to see that the statement of
the deceased was not as a result of either tutoring or prompting or a
product of imagination. The court also must further decide that the
deceased was in a fit state of mind and had the opportunity to observe
and identify the assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental condition to make the
dying declaration looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious state
to make the declaration, the medical opinion will not prevail, nor can
it be said that since there is no certification of the doctor as to
the fitness of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing and any
adequate method of communication whether by words or by signs or
otherwise will suffice provided the indication is positive [pic]and
definite."
17. The aforesaid judgment makes it absolutely clear that the dying
declaration can be oral or in writing and any adequate method of
communication whether by words or by signs or otherwise will suffice,
provided the communication is positive and definite. There cannot be any
cavil over the proposition that a dying declaration cannot be mechanically
relied upon. In fact, it is the duty of the Court to examine a dying
declaration with studied scrutiny to find out whether the same is
voluntary, truthful and made in a conscious state of mind and further it is
without any influence.
18. At this juncture, we may quote a passage from Babulal v. State of
M.P.[7] wherein the value of dying declaration in evidence has been
stated:-
"7. ... A person who is facing imminent death, with even a shadow of
continuing in this world practically non-existent, every motive of
falsehood is obliterated. The mind gets altered by most powerful
ethical reasons to speak only the truth. Great solemnity and sanctity
is attached to the words of a dying person because a person on the
verge of death is not likely to tell lies or to concoct a case so as
to implicate an innocent person. The maxim is "a man will not meet his
Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri).
Mathew Arnold said, "truth sits on the lips of a dying man". The
general principle on which the species of evidence is admitted is that
they are declarations made in extremity, when the party is at the
point of death, and when every hope of this world is gone, when every
motive to falsehood is silenced and mind induced by the most powerful
consideration to speak the truth; situation so solemn that law
considers the same as creating an obligation equal to that which is
imposed by a positive oath administered in a court of justice."
19. Dealing with the oral dying declaration, a two-Judge Bench in Prakash
V. State of M.P.[8] has stated thus:
"11. ... In the ordinary course, the members of the family including
the father were expected to ask the victim the names of the assailants
at the first opportunity and if the victim was in a position to
communicate, it is reasonably expected that he would give the names of
the assailants if he had recognised the assailants. In the instant
case there is no occasion to hold that the deceased was not in a
position to identify the assailants because it is nobody's case that
the deceased did not know the accused [pic]persons. It is therefore
quite likely that on being asked the deceased would name the
assailants. In the facts and circumstances of the case the High Court
has accepted the dying declaration and we do not think that such a
finding is perverse and requires to be interfered with."
20. Thus, the law is quite clear that if the dying declaration is
absolutely credible and nothing is brought on record that the deceased was
in such a condition, he or she could not have made a dying declaration to a
witness, there is no justification to discard the same. In the instant
case, PW-1 had immediately rushed to the house of the deceased and she had
told him that her husband had poured kerosene on her. The plea taken by
the appellant that he has been falsely implicated because his money was
deposited with the in-laws and they were not inclined to return, does not
also really breathe the truth, for there is even no suggestion to that
effect.
21. It is contended by the learned counsel for the appellant when the
deceased sustained 100% burn injuries, she could not have made any
statement to her brother. In this regard, we may profitably refer to the
decision in Mafabhai Nagarbhai Raval v. State of Gujarat[9] wherein it has
been held a person suffering 99% burn injuries could be deemed capable
enough for the purpose of making a dying declaration. The Court in the
said case opined that unless there existed some inherent and apparent
defect, the trial Court should not have substituted its opinion for that of
the doctor. In the light of the facts of the case, the dying declaration
was found to be worthy of reliance.
22. In State of Madhya Pradesh v. Dal Singh and Others[10], a two-Judge
Bench placed reliance on the dying declaration of the deceased who had
suffered 100% burn injuries on the ground that the dying declaration was
found to be credible.
23. At this juncture, we think it apt to deal with the plea of alibi that
has been put forth by the appellant. As is demonstrable, the trial court
has discarded the plea of alibi. When a plea of alibi is taken by an
accused, burden is upon him to establish the same by positive evidence,
after onus as regards presence on the spot is established by the
prosecution. In this context, we may profitably reproduce a few paragraphs
from Binay Kumar Singh V. State of Bihar[11]:
"22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Indian Penal Code or any other law. It is
only a rule of evidence recognised in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in
this context:
"The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is
relevant."
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, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the accused has
adopted the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the
prosecution satisfactorily. 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 possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain some
reasonable doubt regarding his presence at the scene when the
occurrence took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a
sound proposition to be laid down that, in such circumstances, the
burden on the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of alibi.
[Emphasis supplied]
The said principle has been reiterated in Gurpreet Singh v. State of
Haryana[12], S.K. Sattar v. State of Maharashtra[13] and Jitender Kumar v.
State of Haryana[14].
24. Applying the aforesaid test, we have to x-ray the evidence on record.
The father of the deceased, PW-8, has stated in categorical terms that the
appellant-accused was there at home. Nothing has been elicited in the
cross-examination. The prosecution has been able to establish that the
occurrence took place at 11.00 p.m. There is conclusive medical evidence
that the deceased did not suffer the injuries because of accidental fire.
There is no reason to disbelieve the testimony of the father of the
deceased or to discard the medical evidence. On the contrary, the evidence
is beyond reproach.
25. In our considered opinion, when the trial court as well as the High
Court have disbelieved the plea of alibi which is a concurrent finding of
fact, there is no warrant to dislodge the same. The evidence that has been
adduced by the accused to prove the plea of alibi is sketchy and in fact
does not stand to reason. It is not a case where the accused has proven
with absolute certainty so as to exclude the possibility of his presence at
the place of occurrence. The evidence adduced by the accused is not of
such a quality that the Court would entertain a reasonable doubt. The
burden on the accused is rather heavy and he is required to establish the
plea of alibi with certitude. In the instant case, nothing has been
brought on record that it was a physical impossibility of the presence of
the accused to be at the scene of the offence by reason of his presence at
another place. The plea can 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. [See Dudh Nath Pandey v. State of
U.P.[15]]. The evidence of the sister, DW-1, does not inspire any
confidence. The cumulative effect of the evidence as regards the presence
of the accused at the scene of occurrence cannot be disbelieved on the
basis of bald utterance of the sister which is not only sketchy but also
defies reason. Hence, we are obliged to concur with the findings recorded
on this score by the learned trial Judge that has been given the stamp of
approval by the High Court.
26. Consequently, the appeal, being devoid of merit, stands dismissed.
........................................J.
[DIPAK MISRA]
........................................J.
[N.V. RAMANA]
NEW DELHI
MARCH 10, 2015.
-----------------------
[1] (1983) 2 SCC 174
[2] (2002) 2 SCC 426
[3] (1999) 6 SCC 120
[4] (1999) 5 SCC 96
[5] (2010) 10 SCC 259
[6] (2002) 6 SCC 710
[7] (2003) 12 SCC 490
[8] (1992) 4 SCC 225
[9] (1992) 4 SCC 69
[10] (2013) 14 SCC 159
[11] (1997) 1 SCC 283
[12] (2002) 8 SCC 18
[13] (2010) 8 SCC 430
[14] (2012) 6 SCC 204
[15] (1981) 1 SCC 166
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2153 OF 2011
Vijay Pal ... Appellant
Versus
State (GNCT) of Delhi ... Respondent
J U D G M E N T
Dipak Misra, J.
In this appeal, the assail is to the judgment and order dated
31.8.2009 passed by the High Court of Delhi in Criminal Appeal No. 417 of
2001 whereby the Division Bench has dismissed the appeal while affirming
the judgment and order dated 17.01.2001 of the learned Additional Sessions
Judge, Delhi in Sessions Case No. 27 of 1998 whereunder the trial Court had
convicted the appellant under Section 302 of the Indian Penal Code (for
short "the I.P.C.") and sentenced him to suffer rigorous imprisonment for
life.
2. Filtering the unnecessary details the case of the prosecution is that
the deceased, Savitri, had entered into wedlock with the appellant herein
prior to almost eleven years of the date of occurrence i.e. 2.11.1997. The
parental home of the deceased was situated at a distance of half a
kilometer. On the fateful day i.e. 2.11.1997 about 11:00 p.m., Seema, PW-
3, daughter of the deceased, aged about ten years, came running to the
house of her grandfather Shivcharan, PW-8, and informed him as well as
Satish, brother of the deceased, PW-1, that her father was threatening to
burn her mother. The information compelled PWs 1 and 8 to rush to the
house of the deceased and, as the factual matrix would show, PW-1, being
young in age, reached the house of his sister earlier than his father and
found his sister was burning and she told him that it was the accused-
appellant who had put her ablaze by pouring kerosene. The brother poured
water on the deceased in order to extinguish the fire and thereafter took
her to Deen Dayal Upadhyay Hospital where she could not be admitted due to
lack of facility and thereafter they brought her to Safdarjung Hospital
where she was admitted. Despite availing treatment, she breathed her last
on 3.11.1997 about noon. It is necessary to mention here that after the
deceased was taken by her father and brother to the hospital, two
neighbours, namely, Shanker Lal and Surender, PW-2 and PW-4 respectively
went to the Police Station at Mangol Puri and gave the information about
the incident by DD-73 dated 2.11.1997 on the basis of which, the S.I.
Vijender Singh, PW-21, went to the place of the occurrence where he met PW-
3, the daughter of the deceased, and came to learn that her parents had
quarreled and her mother had suffered burn injuries and was taken to the
hospital.
3. In the meantime, information was received at the police station from
Safdarjung Hospital that the deceased had been admitted there and on the
basis of the said information, the police rushed to the hospital where they
met PWs 1 and 8. As the prosecution case would further unfurl after the
death took place they proceeded with the investigation, seized the burnt
clothes, a quilt, one plastic cane, one match-box and match stick and sent
the dead body for post mortem. The investigating agency in course of
investigation arrested the husband on 03.11.1997 and after recording the
statements of number of witnesses laid the chargesheet for the offence
punishable under Section 302 IPC before the competent Court, which in turn
committed the matter to the Court of Session and eventually it was tried by
the learned Additional Sessions Judge.
4. The accused abjured his guilt and pleaded that he was not at home as
he had gone to his sister's place, Shyamwati, DW-1 at MJ-1/61, Vikas Puri,
Delhi and claimed to be tried.
5. The prosecution in order to substantiate the charges leveled against
the accused person, examined as many as 21 witnesses and got number of
documents exhibited. On the basis of the ocular and the documentary
evidence, the learned trial Judge came to hold that the prosecution had
established the charge levelled against the accused to the hilt and
accordingly convicted him under Section 302, I.P.C and imposed the sentence
as has been stated hereinbefore.
6. On an appeal being preferred, the High Court reappreciating the
evidence and placing reliance on the oral dying declaration and the
testimony of the brother and further accepting the post mortem report found
that the learned trial Judge had really not faulted in recording the
conviction. Being of this view, it dismissed the appeal.
7. We have heard Ms. Nupur Choudhary, Advocate (Amicus Curiae) for the
appellant and Mr. W.A. Quadri, counsel for the State.
8. It is submitted by Ms. Nupur Choudhary, learned Amicus Curiae that
the learned trial Judge as well as the High Court has erroneously recorded
the conviction against the appellant though PW-3, the daughter of the
deceased, had not supported the case of the prosecution and she being the
principal witness, the accused deserved to be acquitted. It has been urged
by her that High Court has flawed by placing reliance on the oral dying
declaration of the deceased when she had suffered serious burn injuries,
and in such a situation it could not be possible on her part to tell
anything to her brother. She has seriously criticized the judgment of the
High Court in not accepting the plea of alibi advanced by the accused which
had a solid foundation, for the fateful day was "Bhaiya Dooj" and,
therefore, the accused had gone to his sister's place as per the tradition.
9. Mr. Quadri, learned counsel for the State, per contra, would contend
that though the daughter of the deceased, PW-3, has turned hostile yet her
evidence cannot totally be brushed aside as both the prosecution and the
defence can rely on such parts of the testimony which are favourable to
them. It is his further submission that the oral dying declaration which
has been stated by the brother of the deceased in his testimony has been
proven beyond any trace of doubt and despite the roving cross-examination,
he has remained absolutely firm and nothing has been elicited to discard
his version and, therefore, neither the learned trial Judge nor the High
Court has faulted in placing reliance on it. Pertaining to the plea of
alibi, learned counsel would submit that the said plea has not been
established by the accused as required under the law and the material
brought on record by the prosecution do clearly demonstrate that at the
relevant time he was at home. In essence, it is urged by him that when
these aspects are appreciated in a seemly manner, the cumulative effect
would go a long way to show that the appellant has been appositely
convicted by the learned trial Judge and the High Court has absolutely
correctly concurred with the same.
10. To appreciate the rivalised submissions raised at the bar, we have
perused the judgments of the trial Court and the High Court with concerned
anxiety and cautiously scrutinized the evidence on record. As we find,
there are basically seven witnesses whose evidence are important, they are
Satish, brother of the deceased, PW-1, Shivcharan, father of the deceased,
PW-8, Dr. G.K. Chaubey, who conducted the post mortem, PW-5, Seema,
daughter of the deceased, PW-3, Shanker Lal, PW-2 and Surender, PW-4 who
informed the police at the first instance and Vijender Singh, PW-21, the
sub-Inspector who recorded the statement. At this juncture, it is
necessary to mention that apart from PW-3, PWs 2, 4 and 8, were also
declared hostile by the prosecution and were cross-examined by the state.
In this backdrop, it is to be seen whether the material brought on record
is sufficient enough to sustain the conviction on a scrutiny of the Exbts.
PW-1/A, PW-1/B, PW-1/D, PW-1/E, PW-1/F and Exbt. P-2 that were seized.
11. From the oral evidence and the seized items from the place of
occurrence, it is quite vivid that the deceased had suffered burn injuries
which lead to her death. It was PW-3, the daughter of the deceased, who
witnessed the quarrel and rushed to the home of her grandparents. The
learned trial Judge has put the relevant question to her to find out
whether she was in a position to understand the questions and depose in
Court. In her evidence, she had stated that on the fateful day about 11.00
p.m. her mother was preparing food for the children and for the said
purpose she was pouring kerosene oil in the stove as it was empty and
thereafter when she tried to light the stove, the kerosene oil was not
coming from the nozzle of the stove, then the deceased inserted a pin in
the nozzle and the oil sprinkled on her and in the process she caught fire.
On being declared hostile, she was cross-examined. It is relevant to note
here that she has first deposed that she was not aware who had removed her
mother to the hospital and thereafter changed her stand stating that her
uncle had removed her mother. As her testimony would show she has not
mentioned whereabouts of her father at the time of the incident. Her
ignorance about how the mother was shifted to the hospital shows that as
the High Court has correctly analysed, she has not spoken anything about
her father in order to protect him. Keeping in abeyance whether the plea
of alibi taken by the accused is proven or not to be dealt with at a later
stage, we think it apposite to scan the evidence of other witnesses. PW-1,
the brother of the accused, has unequivocally deposed that after getting
the information from Seema, PW-3, his father and he rushed to the house of
the deceased. As is evincible from the testimony, he reached the house of
the sister first and found she was burning and she told him that his
brother-in-law had poured kerosene and put her ablaze. She has also stated
that the children should not be given to the accused. He has, in detail,
spoken about going to the hospital and how the site plan was prepared and
the items were seized in presence of the witnesses. In the cross-
examination, no suggestion has been given about the absence of husband in
the house, contrivance of the dying declaration by him or anything which
would create a dent in his testimony. What has been sought to be brought
in the cross-examination is that no one was present in the room of the
deceased and certain other questions which have nothing to do with the
incident. It has been suggested to him that his sister and the accused had
kept Rs.90,000/- with his father, PW-8, for purchasing a house and as they
refused to return the money, they had, getting an opportunity, falsely
implicated the accused. It has also come out in the cross-examination that
the accused was a habitual drinker and gambler and his family was supported
by the in-laws.
12. At this stage it would be appropriate to state that the trial court
and the High Court have placed reliance on the post-mortem report. Dr.
G.K. Choubey, PW5, who had conducted the post-mortem on the dead body of
the deceased had found the following injuries:-
"Superficial to deep burn injury over all the body surface area
including scalp, skin peeled off at various places, margins red
underneath tissues bright red and there was blackening of skin over
various area. Skin was peeled off at soles, but not at palms.
Venisection at left leg above medial malleolus was present."
It was 100 per cent antemortem deep burns. Internal examination
revealed that Larynx contained soot particles and rest of the organs
were found to be congested."
13. In the cross-examination he has categorically denied the suggestion
that the injuries received by the deceased could have been sustained
because of kerosene oil from the stove fell on her body due to the pinning
of the stove and also by fall of a tin of kerosene oil on the floor. He
has deposed without any equivocation that the burn injuries sustained by
the deceased were not possible due to accidental burns. The High Court has
taken note of the FSL Report, Ext. PW 20/B, from which it is evident that
the analysis by gas liquid chromatography showed, kerosene oil residues
were found on the scalp hair of the deceased. It is apt to note that the
presence of kerosene on the scalp hair of the deceased and presence of dust
particles in the larynx of the deceased clearly evince that kerosene oil
was poured on the skull of the deceased which could not have happened by
accident. The testimony of the daughter, Seema, PW-3, a young girl of ten
years that the kerosene oil accidentally spilled on the body of her mother
is thus absolutely unbelievable. We are disposed to think so when we
weigh the medical testimony vis-a vis the ocular testimony. There is no
dispute that the value of medical evidence is only corroborative. It
proves that the injuries could have been caused in the manner as alleged
and nothing more. The use which the defence can make of the medical
evidence is to prove that the injuries could not possibly have been caused
in the manner alleged and thereby discredit the eye-witnesses. Unless,
however the medical evidence in its turn goes so far that it completely
rules out all possibilities whatsoever of injuries taking place in the
manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot
be thrown out on the ground of alleged inconsistency between it and the
medical evidence. It is also true that the post-mortem report by itself is
not a substantive piece of evidence, but the evidence of the doctor
conducting the post-mortem can by no means be ascribed to be insignificant.
The significance of the evidence of the doctor lies vis--vis the injuries
appearing on the body of the deceased person and likely use of the weapon
and it would then be the prosecutor's duty and obligation to have the
corroborative evidence available on record from the other prosecution
witnesses. It is also an accepted principle that sufficient weightage
should be given to the evidence of the doctor who has conducted the post-
mortem, as compared to the statements found in the textbooks, but giving
weightage does not ipso facto mean that each and every statement made by a
medical witness should be accepted on its face value even when it is self-
contradictory. It is also a settled principle that the opinion given by a
medical witness need not be the last word on the subject. Such an opinion
shall be tested by the Court. If the opinion is bereft of logic or
objectivity, the court is not obliged to go by that opinion. That apart,
it would be erroneous to accord undue primacy to the hypothetical answers
of medical witnesses to exclude the eyewitnesses' account which are to be
tested independently and not treated as the 'variable' keeping the medical
evidence as the 'constant'. Where the eyewitnesses' account is found
credible and trustworthy, a medical opinion pointing to the alternative
possibilities cannot be accepted as conclusive. [See: Solanki Chimanbhai
Ukabhai v. State of Gujrat[1], State of Haryana v. Ram Singh[2], Mohd.
Zahid v. State of T.N.[3], State of Haryna v. Bhagirath[4] and Abdul Sayeed
v. State of M.P.[5]]
14. Having stated about the medical evidence that has been brought on
record and how such an evidence is to be valued, we think it apt to dwell
upon the oral dying declaration which has been placed reliance upon by the
trial Court as well as the High Court. As per the evidence of the
brother, Satish, PW-1, he after reaching the place of occurrence found his
sister ablaze and she had stated that her husband has poured kerosene on
her and put her ablaze. There is material to show that the father,
Shivcharan, PW-8, arrived after his son. The prosecution has explained
about the delayed arrival of the father.
15. The submission of the learned counsel for the appellant is that the
oral dying declaration lacks intrinsic truth and it does not deserve
acceptance. At this juncture we think it appropriate to refer to certain
authorities how an oral dying declaration is to be scrutinized.
16. In the case of Laxman v. State of Maharashtra[6], the Constitution
Bench has held thus:
"The juristic theory regarding acceptability of a dying declaration is
that such declaration is made in extremity, when the party is at the
point of death and when every hope of this world is gone, when every
motive to falsehood is silenced, and the man is induced by the most
powerful consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the weight to be
given to this species of evidence on account of the existence of many
circumstances which may affect their truth. The situation in which a
man is on the deathbed is so solemn and serene, is the reason in law
to accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Since
the accused has no power of cross-examination, the courts insist that
the dying declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness. The
court, however, has always to be on guard to see that the statement of
the deceased was not as a result of either tutoring or prompting or a
product of imagination. The court also must further decide that the
deceased was in a fit state of mind and had the opportunity to observe
and identify the assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental condition to make the
dying declaration looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious state
to make the declaration, the medical opinion will not prevail, nor can
it be said that since there is no certification of the doctor as to
the fitness of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing and any
adequate method of communication whether by words or by signs or
otherwise will suffice provided the indication is positive [pic]and
definite."
17. The aforesaid judgment makes it absolutely clear that the dying
declaration can be oral or in writing and any adequate method of
communication whether by words or by signs or otherwise will suffice,
provided the communication is positive and definite. There cannot be any
cavil over the proposition that a dying declaration cannot be mechanically
relied upon. In fact, it is the duty of the Court to examine a dying
declaration with studied scrutiny to find out whether the same is
voluntary, truthful and made in a conscious state of mind and further it is
without any influence.
18. At this juncture, we may quote a passage from Babulal v. State of
M.P.[7] wherein the value of dying declaration in evidence has been
stated:-
"7. ... A person who is facing imminent death, with even a shadow of
continuing in this world practically non-existent, every motive of
falsehood is obliterated. The mind gets altered by most powerful
ethical reasons to speak only the truth. Great solemnity and sanctity
is attached to the words of a dying person because a person on the
verge of death is not likely to tell lies or to concoct a case so as
to implicate an innocent person. The maxim is "a man will not meet his
Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri).
Mathew Arnold said, "truth sits on the lips of a dying man". The
general principle on which the species of evidence is admitted is that
they are declarations made in extremity, when the party is at the
point of death, and when every hope of this world is gone, when every
motive to falsehood is silenced and mind induced by the most powerful
consideration to speak the truth; situation so solemn that law
considers the same as creating an obligation equal to that which is
imposed by a positive oath administered in a court of justice."
19. Dealing with the oral dying declaration, a two-Judge Bench in Prakash
V. State of M.P.[8] has stated thus:
"11. ... In the ordinary course, the members of the family including
the father were expected to ask the victim the names of the assailants
at the first opportunity and if the victim was in a position to
communicate, it is reasonably expected that he would give the names of
the assailants if he had recognised the assailants. In the instant
case there is no occasion to hold that the deceased was not in a
position to identify the assailants because it is nobody's case that
the deceased did not know the accused [pic]persons. It is therefore
quite likely that on being asked the deceased would name the
assailants. In the facts and circumstances of the case the High Court
has accepted the dying declaration and we do not think that such a
finding is perverse and requires to be interfered with."
20. Thus, the law is quite clear that if the dying declaration is
absolutely credible and nothing is brought on record that the deceased was
in such a condition, he or she could not have made a dying declaration to a
witness, there is no justification to discard the same. In the instant
case, PW-1 had immediately rushed to the house of the deceased and she had
told him that her husband had poured kerosene on her. The plea taken by
the appellant that he has been falsely implicated because his money was
deposited with the in-laws and they were not inclined to return, does not
also really breathe the truth, for there is even no suggestion to that
effect.
21. It is contended by the learned counsel for the appellant when the
deceased sustained 100% burn injuries, she could not have made any
statement to her brother. In this regard, we may profitably refer to the
decision in Mafabhai Nagarbhai Raval v. State of Gujarat[9] wherein it has
been held a person suffering 99% burn injuries could be deemed capable
enough for the purpose of making a dying declaration. The Court in the
said case opined that unless there existed some inherent and apparent
defect, the trial Court should not have substituted its opinion for that of
the doctor. In the light of the facts of the case, the dying declaration
was found to be worthy of reliance.
22. In State of Madhya Pradesh v. Dal Singh and Others[10], a two-Judge
Bench placed reliance on the dying declaration of the deceased who had
suffered 100% burn injuries on the ground that the dying declaration was
found to be credible.
23. At this juncture, we think it apt to deal with the plea of alibi that
has been put forth by the appellant. As is demonstrable, the trial court
has discarded the plea of alibi. When a plea of alibi is taken by an
accused, burden is upon him to establish the same by positive evidence,
after onus as regards presence on the spot is established by the
prosecution. In this context, we may profitably reproduce a few paragraphs
from Binay Kumar Singh V. State of Bihar[11]:
"22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Indian Penal Code or any other law. It is
only a rule of evidence recognised in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in
this context:
"The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is
relevant."
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, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the accused has
adopted the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the
prosecution satisfactorily. 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 possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain some
reasonable doubt regarding his presence at the scene when the
occurrence took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a
sound proposition to be laid down that, in such circumstances, the
burden on the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of alibi.
[Emphasis supplied]
The said principle has been reiterated in Gurpreet Singh v. State of
Haryana[12], S.K. Sattar v. State of Maharashtra[13] and Jitender Kumar v.
State of Haryana[14].
24. Applying the aforesaid test, we have to x-ray the evidence on record.
The father of the deceased, PW-8, has stated in categorical terms that the
appellant-accused was there at home. Nothing has been elicited in the
cross-examination. The prosecution has been able to establish that the
occurrence took place at 11.00 p.m. There is conclusive medical evidence
that the deceased did not suffer the injuries because of accidental fire.
There is no reason to disbelieve the testimony of the father of the
deceased or to discard the medical evidence. On the contrary, the evidence
is beyond reproach.
25. In our considered opinion, when the trial court as well as the High
Court have disbelieved the plea of alibi which is a concurrent finding of
fact, there is no warrant to dislodge the same. The evidence that has been
adduced by the accused to prove the plea of alibi is sketchy and in fact
does not stand to reason. It is not a case where the accused has proven
with absolute certainty so as to exclude the possibility of his presence at
the place of occurrence. The evidence adduced by the accused is not of
such a quality that the Court would entertain a reasonable doubt. The
burden on the accused is rather heavy and he is required to establish the
plea of alibi with certitude. In the instant case, nothing has been
brought on record that it was a physical impossibility of the presence of
the accused to be at the scene of the offence by reason of his presence at
another place. The plea can 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. [See Dudh Nath Pandey v. State of
U.P.[15]]. The evidence of the sister, DW-1, does not inspire any
confidence. The cumulative effect of the evidence as regards the presence
of the accused at the scene of occurrence cannot be disbelieved on the
basis of bald utterance of the sister which is not only sketchy but also
defies reason. Hence, we are obliged to concur with the findings recorded
on this score by the learned trial Judge that has been given the stamp of
approval by the High Court.
26. Consequently, the appeal, being devoid of merit, stands dismissed.
........................................J.
[DIPAK MISRA]
........................................J.
[N.V. RAMANA]
NEW DELHI
MARCH 10, 2015.
-----------------------
[1] (1983) 2 SCC 174
[2] (2002) 2 SCC 426
[3] (1999) 6 SCC 120
[4] (1999) 5 SCC 96
[5] (2010) 10 SCC 259
[6] (2002) 6 SCC 710
[7] (2003) 12 SCC 490
[8] (1992) 4 SCC 225
[9] (1992) 4 SCC 69
[10] (2013) 14 SCC 159
[11] (1997) 1 SCC 283
[12] (2002) 8 SCC 18
[13] (2010) 8 SCC 430
[14] (2012) 6 SCC 204
[15] (1981) 1 SCC 166
