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TMI Blog2015 (3) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... tsoever 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. 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, Shivcharan, PW-8, arrived after his son. The prosecution has explained about the delayed arrival of the father. 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 eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 injuri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 that the children should not be given to the accused. He has, in detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 piece of evidence, but the evidence of the doctor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ception (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 need be considered only when the burden has been discharged by the prosecut ..... 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