LexVIJAYPAL versus STATE (GNCT) OF DELHI
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A B c (2015] 3 S.C.R. 394 VIJAYPAL v. STATE (GNCT) OF DELHI (Criminal Appeal No. 2153 of2011) MARCH 10, 2015 [DIPAK MISRA AND N.V. RAMANA, JJ.] 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. F Dying declaration - Evidentiary value - Discussed. 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
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