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2015 (3) TMI 1431
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....e i.e. 2.11.1997. The parental home of the deceased was situated at a distance of half a kilometer. On the fateful day i.e. 2.11.1997 about 11:00 p.m., Seema, PW-3, daughter of the deceased, aged about ten years, came running to the house of her grandfather Shivcharan, PW-8, and informed him as well as Satish, brother of the deceased, PW-1, that her father was threatening to burn her mother. The information compelled PWs 1 and 8 to rush to the house of the deceased and, as the factual matrix would show, PW-1, being young in age, reached the house of his sister earlier than his father and found his sister was burning and she told him that it was the accused-Appellant who had put her ablaze by pouring kerosene. The brother poured water on the deceased in order to extinguish the fire and thereafter took her to Deen Dayal Upadhyay Hospital where she could not be admitted due to lack of facility and thereafter they brought her to Safdarjung Hospital where she was admitted. Despite availing treatment, she breathed her last on 3.11.1997 about noon. It is necessary to mention here that after the deceased was taken by her father and brother to the hospital, two neighbours, namely, Shanker L....
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....tate. 8. It is submitted by Ms. Nupur Choudhary, learned Amicus Curiae that the learned trial Judge as well as the High Court has erroneously recorded the conviction against the Appellant though PW-3, the daughter of the deceased, had not supported the case of the prosecution and she being the principal witness, the accused deserved to be acquitted. It has been urged by her that High Court has flawed by placing reliance on the oral dying declaration of the deceased when she had suffered serious burn injuries, and in such a situation it could not be possible on her part to tell anything to her brother. She has seriously criticized the judgment of the High Court in not accepting the plea of alibi advanced by the accused which had a solid foundation, for the fateful day was "Bhaiya Dooj" and, therefore, the accused had gone to his sister's place as per the tradition. 9. Mr. Quadri, learned Counsel for the State, per contra, would contend that though the daughter of the deceased, PW-3, has turned hostile yet her evidence cannot totally be brushed aside as both the prosecution and the defence can rely on such parts of the testimony which are favourable to them. It is his furth....
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....dence, she had stated that on the fateful day about 11.00 p.m. her mother was preparing food for the children and for the said purpose she was pouring kerosene oil in the stove as it was empty and thereafter when she tried to light the stove, the kerosene oil was not coming from the nozzle of the stove, then the deceased inserted a pin in the nozzle and the oil sprinkled on her and in the process she caught fire. On being declared hostile, she was cross-examined. It is relevant to note here that she has first deposed that she was not aware who had removed her mother to the hospital and thereafter changed her stand stating that her uncle had removed her mother. As her testimony would show she has not mentioned whereabouts of her father at the time of the incident. Her ignorance about how the mother was shifted to the hospital shows that as the High Court has correctly analysed, she has not spoken anything about her father in order to protect him. Keeping in abeyance whether the plea of alibi taken by the accused is proven or not to be dealt with at a later stage, we think it apposite to scan the evidence of other witnesses. PW-1, the brother of the accused, has unequivocally deposed....
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....y the deceased were not possible due to accidental burns. The High Court has taken note of the FSL Report, Ext. PW 20/B, from which it is evident that the analysis by gas liquid chromatography showed, kerosene oil residues were found on the scalp hair of the deceased. It is apt to note that the presence of kerosene on the scalp hair of the deceased and presence of dust particles in the larynx of the deceased clearly evince that kerosene oil was poured on the skull of the deceased which could not have happened by accident. The testimony of the daughter, Seema, PW-3, a young girl of ten years that the kerosene oil accidentally spilled on the body of her mother is thus absolutely unbelievable. We are disposed to think so when we weigh the medical testimony vis-a-vis the ocular testimony. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its ....
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....nce of the brother, Satish, PW-1, he after reaching the place of occurrence found his sister ablaze and she had stated that her husband has poured kerosene on her and put her ablaze. There is material to show that the father, Shivcharan, PW-8, arrived after his son. The prosecution has explained about the delayed arrival of the father. 15. The submission of the learned Counsel for the Appellant is that the oral dying declaration lacks intrinsic truth and it does not deserve acceptance. At this juncture we think it appropriate to refer to certain authorities how an oral dying declaration is to be scrutinized. 16. In the case of Laxman v. State of Maharashtra 2002) 6 SCC 710, 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 th....
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....ts 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. (1992) 4 SCC 225 has stated thus: 11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first o....
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.... court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive evidence, after onus as regards presence on the spot is established by the prosecution. In this context, we may profitably reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar (1997) 1 SCC 283: 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,....