Page 1 REPORTABLE

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

Page 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

2

Page 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

3

Page 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 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

4

Page 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

5

Page 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

6

Page 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

7

Page 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

8

Page 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

9

Page 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

10

Page 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

11

Page 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

12

Page 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

13

Page 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

2

(2002) 2 SCC 426

3

(1999) 6 SCC 120

4

(1999) 5 SCC 96

5

(2010) 10 SCC 259

14

Page 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 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

6

(2002) 6 SCC 710

15

Page 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,

16

Page 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

(2003) 12 SCC 490

8

(1992) 4 SCC 225

17

Page 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.

18

Page 19 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

9

(1992) 4 SCC 69

10

(2013) 14 SCC 159

19

Page 20 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

11

(1997) 1 SCC 283

20

Page 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 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-

12

(2002) 8 SCC 18

13

(2010) 8 SCC 430

14

(2012) 6 SCC 204

21

Page 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

22

Page 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

23

Page 24 ........................................J.

[DIPAK MISRA]

........................................J.

[N.V. RAMANA]

NEW DELHI

MARCH 10, 2015.

24