VIJAYPALversusSTATE (GNCT) OF DELHI

                        (2015] 3 S.C.R. 394


A                           VIJAYPAL

                                 v.
                    STATE (GNCT) OF DELHI
B               (Criminal Appeal No. 2153 of2011)

                         MARCH 10, 2015

             [DIPAK MISRA AND N.V. RAMANA, JJ.]
c      Penal Code, 1860- s. 302 - Prosecution under- Death
  caused by husband of his wife -After 11 years of marriage -
  By setting the wife on fire - Dying declaration - Conviction
  by courts below- On appeal, held: Conviction was justified-
D The dying declaration, the post-mortem report, the oral
  evidence of brother and father of the deceased and of the
  doctor who conducted post-mortem, the seized items from
  the place of occurrence, prove that the incident was not
  accidental - The evidence of the minor daughter of the
E deceased who was declared hostile, is unbelievable in view
  of the medical evidence - Plea of alibi is also sketchy and
  does not stand to reason - Conviction upheld.

        Dying declaration - Evidentiary value - Discussed.
F
        Evidence - Medical testimony vis-a-vis ocular testimony
    - Evidentiary value - Discussed.

       Evidence -Alibi - Held: The burden to prove the plea of
G alibi is on the accused - The plea has to be established by
  the accused by positive evidence - 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 of
  occurrence.
H
                              394
         VIJAY PAL v. STATE (GNCT) OF DELHI              395


      Dismissing the appeal, the Court                    A

       HELD: 1. 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 minor daughter of the B
deceased, who witnessed the quarrel and rushed to the
home of her grandparents. [para 11] [404-C-D]

       2. The trial Judge has put the relevant question to
PW-3 to find out whether she was in a position to c
understand the questions and depose in Court. On being
declared hostile, she was cross-examined. 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 D
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 she has not spoken anything about·
her father in order to protect him. [para 11] [404-D-H]    E

       3. The trial court and the High Court have placed
reliance on the post-mortem report. PW5, who ·had
conducted the post-mortem on the dead body of the
deceased had, in his cross-examination, categorically F
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 G
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
presence of kerosene on the scalp hair of the deceased
and presence of dust particles in the larynx of the H
396       SUPREME COURT REPORTS                  [2015] 3 S.C.R.



A deceased, as per the FSL Report, 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 of the deceased, PW-3, a
  young girl often years that the kerosene oil accidentally
B spilled on the body of her mother is thus absolutely
  unbelievable on weighing the medical testimony vis-a
  vis the ocular testimony. [paras 12 and 13] [405-F-G;
  406-C-D, E-G]
                              \
c           4. It is true that tlie value of medical evidence is
    only corroborative. 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
D   The significance of the evidence of the doctor lies vis-a-
    vis the injuries appearing on the body of the deceased
    person and likely use of the weapon ahd it would    '   then
    be the prosecutor's duty and obligation to have the
E   corroborative evidence available on record from the
    other pros!'!cution 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
F   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
G   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
H   hypothetical answers of medical witnesses to exclude
         VIJAY PAL v. STATE (GNCT) OF DELHI               397


the eyewitnesses' account which are to be tested A
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. [para 13] [406-G; 407- B
B-G]
  Solanki Chimanbhai Ukabhai v. State of Gujrat 1983
  (2) SCC 174, State of Haryana v. Ram Singh 2002
               =
  (1) SCR 208 2002 (2) sec 426, Mohd. Zahid v. State      c
  ofT.N. 1999 (6) SCC 120, State ofHaryna v. Bhagirath
                      =
  1999 (3) SCR 529 1999 (5) sec 96 and Abdul
                                               =
  Sayeed v. State of M.P. 2010 (13) SCR 311 2010
  (10) sec 259- referred to.
                                                           D
       5. It is not correct to say that when the deceased
sustained 100% burn injuries, she could not have made
any statement to her brother. If the dying declaration is
absolutely credible and nothing is brought on record that E
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 F
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. [paras 20 and 21] G
[411-D-G]

  Mafabhai Nagarbhai Raval v. State of Gujarat 1992 (4)
  SCC 69; State of Madhya Pradesh v. Dal Singh and
                             =
  Others 2013 (8) SCR 968 2013 (14) sec 159 -             H
398      SUPREME COURT REPORTS               (2015] 3 S.C.R.



A     relied on.

      Laxman v. State of Maharashtra 2002 (6) SCC 710;
                                                   =
      Babula/ v. State of M.P 2003 (5),,Suppl. SCR 54 2003
      (12) SCC 490; PrakashV. State ofM.P. 1992 (4) SCC
B     225 - referred to.

          6. 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
c established by the prosecution. 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
D at the place of occurrence. The burden on ~he 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·
E 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
F committed. The evidence of DW-1, does not inspire any
   confidence, which is not only sketchy but also defies
   reason. 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.
G [para 23 and 25) (412-E; 414-E-F; 415-A-B]'

      Binay Kumar Singh V. State of Bihar 1996
                           =
      (8) Suppl. SCR 225 1997(1) SCC 283; Gurpreet
      Singh v. State of Haryana 2002 (2) Suppl. SCR
H         =
      337 2002 (8) SCC 18, S.K. Sattar v. State of
        VIJAY PAL v. STATE (GNCT) OF DELHI           399


  Maharashtra 2010 (10) SCR 503 = 2010 (8) SCC 430    A
  and Jitender Kumar v. State of Haryana 2012
  (4) SCR 408 = 2012 (6) SCC 204; Dudh Nath Pandey
  v. State of U. P. 1981 (1) SCC 166 - relied on.
                Case Law Reference                   B
  1983 (2) sec 174          referred to   para 13
  2002 (1) SCR 208          referred to   para 13
  2002 (2) sec 426          referred to   para 13    c
  1999 (6) sec 120          referred to   para 13
  1999 (3) SCR 529          referred to   para 13
  2010 (13) SCR 311         referred to   para 13     D
  2002 (6) sec 110 ·        referred to   para 16
  2003 (5) Suppl. SCR 54    referred to   para 18
  1992 (4) sec 225          referred to   para 19     E
  1992 (4) sec 69           relied on     para 21
  2013 (8) SCR 968          relied on     para 22
  1996 (8) Suppl. SCR 225   relied on     para 23     F
  2002 (2) Suppl. SCR 337   relied on     para 23
  2010 (10) SCR 503         relied on     para 23
  2012 (4) SCR 408          relied on     para 23    G
  1981 (1) sec 166          relied on     para 25

      CRIMINALAPPELLATE JURISDICTION; Criminal
Appeal No. 2153 of 2011.
                                                      H
400         SUPREME COURT REPORTS                 (2015] 3 S.C.R.



A           From the Judgment and Order dated 31.08.2009 of the
      High Court of Delhi at New Delhi in Criminal Appeal No. 417
      of2001.

            Nupur Choudhary (AC.), G. Madhavi for the Appellant.
B
           W. A Quadri, Radhakanta Tripathy, Anil Katiyar for the
      Respondent.

            The Judgment of the Court was delivered by

C           DIPAK MISRA, J. 1. 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
  judgme~t and order dated 17.01.2001 of the learned Additional
D Sessions Judge, Delhi in Sessions Case No. 27 of 1998
  whereunderthe trial Court had convicted the appellant under
  Section 302 of the Indian Penal Code (for short "the 1.P.C.")
  and sentenced him to suffer rigorous imprisonment for life.
E         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
F 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-
G 1, that her father was threatening to burn her mother. The
  infonnation 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
H
         VIJAY PAL v. STATE (GNCT) OF DELHI                  401
                  [DIPAK MISRA, J.]

was the accused-appellant who had put her ablaze by pouring A
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, B
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 C
Police Station at Man~ol 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 D
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, E
the police rushed to the hospital where they metPWs 1and8.
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 F
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 tum committed the matter to the Court of Session and G
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,
                                                               H
402         SUPREME COURT REPORTS                    [2015] 3 S.C.R.



A     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
B     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, l.P.C and
C     imposed the sentence as has been st~ted 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
D 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
E   (Amicus Curiae) forthe 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
F 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
  principalwitness, the accused deserved to be acquitted. It
  has been urged by her that High Court has flawed by placing
G 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
H not accepting the plea of alibi advanced by the accused which
          VIJAY PAL v. STATE (GNCT) OF DELHI                       403
                   [DIPAK MISRA, J.]

had a solid foundation, for the fateful day was "Bhaiya Dooj"       A
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- B
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 C
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 D
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 E
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.                       F
        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 G
basically seven witnesses whose evidence are important, they
are Satish, brother of the deceased, PW-1, Shivcharan, father
of the deceased, PW-8, Dr. GK. Chaubey, who conducted the
post mortem, PW-5, Seema, daughter of the deceased, PW-
                                                                    H
404         SUPREME COURT REPORTS                    [2015] 3 S.C.R.



A     3, Shanker Lal, PW-2 and Su render, 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-
B     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.

C         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
0
  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 forthe children
E 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
F 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
G 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.
H Keeping in abeyance whether the plea of alibi taken by the
          VIJAY PAL v. STATE (GNCT) OF DELHI                         405
                   [DIPAK MISRA, J.)

 accused is proven or not to be dealt with at a later stage, we       A
 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    B
 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       C
 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        D
  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        E
 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.
                                                                      F
         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:-                               G

   "Superficial to deep bum injury over all the body surface
   area including scalp, skin peeled off at various places,
   margins red underneath tissues bright red and there
                                                                      H
406       SUPREME COURT REPORTS                    [2015] 3 S.C.R.



A      was blackening of skin over various arec;. 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
B      examination revealed that Larynx contained soot
       particles i\lnd rest of the organs were found to be
       congested."

             13. In the cross-examination he has categorically denied
c 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
D 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
E 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
F testimony of the daughter, Seema, PW-3, a young girl often
  . 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
G 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.
H
            VIJAY PAL v. STATE (GNCT) OF DELHI                            407
                     [DIPAK MISRA, J.]

  Unless, however the medical evidence in its turn goes so far             A
  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       B
   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-a-vis the injuries appearing on the body         C
  of the deceased person and likely use of the weapon and it
  would th.en 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             D
  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       E
  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                 F
  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           G
  and trustworthy, a medical opinion pointing to the alternative
  possibilities cannot be accepted as conclusive.

 [See: Solanki Chimanbhai Ukabhai v. State of Gujrat1,
 1 (1983) 2 sec 114                                                        H
408          SUPREME COURT REPORTS                    [2015] 3 S.C.R.



A State Of Haryana v. Ram Singh', Mohd. Zahid v. State
      of T.N. 3, State of Haryna v. Bhagirath4 and Abdul Sayeed
      v. State of M.P.5]

          14. Having stated about the medical evidence that has
B 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
C 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.
0
              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
E     declaration is to be scrutinized.

             16. In the case of Laxman v. State ofMaharashtra6 ,
      the Constitution Bench has held thus:

F        "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
G        most powerful consideration to speak only the truth.
      2 (2002) 2 sec 426
      3 (1999) 6 sec 120
      4 (1999) s sec 96
      s (2010) 10 sec 259
H     6 (2002) 6 sec 110
         VIJAY PAL v. STATE (GNCT) OF DELHI                         409
                  [DIPAK MISRA, J.]

  Notwithstanding the same, great caution must be                    A
  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         B
  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 declaratiomihould be of such a nature
                                                                     c
  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            D
  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             E
  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         F
  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."
                                                                     G
        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 wm suffice, provided the communication is
                                                             H
positive and definite. There cannot be any cavil over the
410         SUPREME COURT REPORTS.                     [2015] 3 S.C.R.



A     proposition that a dying declaration cannot be mechanili:ally
      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.
B
             18. At this juncture, we may quote a passage from
      Babula/ v. State ofM.P. 7 wherein the value of dying declaration_
      in evidence has been stated:-

c       "7 .... Aperson 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
D       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 mentin). Mathew Arnold said,
E       ''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
F
        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
G       justice."

            19. Dealing with the oral dying declaration, a two-Judge
      Bench in Prakash II. State ofM.P. 8 has stated thus:

  1 (2003) 12 sec 490
H s (1992) 4 sec 225
             VIJAY PAL v. STATE (GNCT) OF DELHI                  411
                      [DIPAK MISRA, J.]

   "11 . ... In the ordinary course, the members of the family    A
   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       8
   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
                                                                  c
   facts and circumstances of the case theHigh Court has
   accepted the dying declaration and we do not think that
   such a finding is perverse and requires to be interfered
   with."                                                         D
        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 E
no justification to discard the same. In the instant case, PW-1
had immediately rushed to the ho1Jse 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 F
and they were not inclined to return·, does not al.so 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, G
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 Gujarat9 wherein it has been

9 (1992) 4   sec 69                                               H
412          SUPREME COURT REPORTS                      [2015] 3 S.C.R.



A     held a person suffering 99% burn injuries could be deemed
      capable enough forthe 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
B     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
C     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
D 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.
E   In this context, we may profitably reproduce a few paragraphs
    from Binay Kumar Singh II. 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
F       or any other law. It is only a rule of evidence. recognised
        in Section 1~ 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:
G
        "The question is whether A committed a crime at Calcutta
        on a certain date; the fact that on that date, A was at

    10 (2013) 14 sec 159
H   11 (1997) 1 sec 203
       VIJAY PAL v. STATE (GNCT) OF DELHI                        413
                [DIPAK MISRA, J.]

Lahore is relevant."                                              A

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           B
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                 c
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
                                                                  D
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.           E
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                  F
happened. But if the evidence adduced by the accused
is of such a qualitv 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        G
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
                                                                  H
establishing the plea of alibi.
414        SUPREME COURT REPORTS                 [2015] 3 S.C.R.


A                                         [Emphasis supplied]

           The said principle has been reiterated in Gurpreet
      Singh v. State of Haryana 12, S.K. Sattar v. State of
      Maharashtra13 and Jitender Kumar v. State of Haryana 14 •
B
  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-
C 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
D 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
E 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
F 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
G 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

    12 c2002i a sec 1a
    13 c201oi a sec 430
H   14 c2012i 6 sec 204
           VIJAY PAL v. STATE (GNCT) OF DELHI                    415
                    [DIPAK MISRA, J.)

his presence at another place. The plea can succeed only if it A
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
evid~nce of the sister, DW-1, does not inspire any confidence.
The cumulative effect of the evidence as regards the presence B
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 C
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.
                                                                  D
Kalpana K. Tripathy                          Appeal dismissed.




1s (1981) 1 sec 166