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SUPREME COURT OF INDIA
DIPAK MISRA, N.V. RAMANA, JJ.
Vijay Pal – Appellant
Versus
State (GNCT) of Delhi – Respondent
CRIMINAL APPEAL NO. 2153 OF 2011
Decided on: 10-03-2015
(1983) 2 SCC 174; (2002) 2 SCC 426; (1999) 6 SCC 120; (1999) 5 SCC 96; (2010) 10 SCC 259 – Relied upon
(b) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – Form viz. written or oral or any adequate method of communication will not matter so long the communication is positive and definite – A dying declaration cannot be mechanically relied upon – Oral dying declaration by deceased to her brother – No reason to disbelieve. (Para 17, 20)
(2002) 6 SCC 710; (2003) 12 SCC 490; (1992) 4 SCC 225 – Relied upon
(c) Indian Evidence act, 1872 – Section 32(1) – Dying declaration – Burn injury – A person suffering 99% burn injury can be in a fit state of mind to give statement. (Para 21)
(1992) 4 SCC 69; (2013) 14 SCC 159 – Relied upon
(d) Criminal trial – Alibi – After prosecution establishes presence of the accused at the spot of incident – Onus shifts on accused to establish his alibi by positive evidence. (Para 23)
(1997) 1 SCC 283; (2002) 8 SCC 18; (2010) 8 SCC 430 – Relied upon
(e) Criminal trial – Alibi – Incident happening at 11.00 p.m. – Father of deceased categorically stating about presence of accused at the place of occurrence – Medical evidence establishing death not to be accidental – Plea of alibi rightly rejected. (Para 24)
(1981) 1 SCC 166 – Relied upon
Facts of the case:
Appellant was convicted and sentenced u/s 302 IPC.
High Court affirmed the conviction and sentence.
Finding of the Court:
There is no infirmity in the concurrent finding of courts below.
Result: Appeal dismissed.
Judgment
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 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 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 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 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
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