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 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

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  Gujrat1,  

State of  Haryana v.  Ram Singh2,  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  

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

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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

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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,  

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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

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“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.   

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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  

Gujarat9 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.

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

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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

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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  (2002) 8 SCC 18 13  (2010) 8 SCC 430 14  (2012) 6 SCC 204

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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  

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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

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........................................J. [DIPAK MISRA]

........................................J.                  [N.V. RAMANA] NEW DELHI MARCH 10, 2015.

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