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 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
Others10, 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2153 OF 2011
Vijay Pal Vs State (GNCT) of Delhi
Dated;MARCH 10, 2015.
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
Page 1
2
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
Page 2
3
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
Page 3
4
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 arrested
of
investigation
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
Page 4
5
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
Page 5
6
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
Page 6
7
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
Page 7
8
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
Page 8
9
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
Page 9
10
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
Page 10
11
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
Page 11
12
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
Page 12
13
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-à-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
Page 13
14
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,
1
(1983) 2 SCC 174
(2002) 2 SCC 426
3
(1999) 6 SCC 120
4
(1999) 5 SCC 96
5
(2010) 10 SCC 259
2
Page 14
15
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 Maharashtra6,
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
6
(2002) 6 SCC 710
Page 15
16
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 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,
Page 16
17
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:
7
8
(2003) 12 SCC 490
(1992) 4 SCC 225
Page 17
18
“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 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 (1992) 4 SCC 69 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(2013) 14 SCC 159, 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
9
(1992) 4 SCC 69
(2013) 14 SCC 159
10
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 Bihar11:
“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
11
(1997) 1 SCC 283
Page 20
21
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 Haryana12, S.K. Sattar v. State of
Maharashtra13 and Jitender
Kumar
v.
State
of
Haryana14.
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-
12
13
14
(2002) 8 SCC 18
(2010) 8 SCC 430
(2012) 6 SCC 204
Page 21
22
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
Page 22
23
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.
15
(1981) 1 SCC 166
Page 23
24
........................................J.
[DIPAK MISRA]
........................................J.
[N.V. RAMANA]
NEW DELHI
MARCH 10, 2015.
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