Dipak Misra, J.In this appeal, the assail is to the judgment and order dated31.8.2009 passed by the High Court of Delhi in Criminal Appeal No. 417 of2001 whereby the Division Bench has dismissed the appeal while affirmingthe judgment and order dated 17.01.2001 of the learned Additional SessionsJudge, Delhi in Sessions Case No. 27 of 1998 whereunder the trial Court hadconvicted the appellant under Section 302 of the Indian Penal Code (forshort "the I.P.C.") and sentenced him to suffer rigorous imprisonment forlife.Theparental home of the deceased was situated at a distance of half akilometer.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 thehouse of her grandfather Shivcharan, PW-8, and informed him as well asSatish, brother of the deceased, PW-1, that her father was threatening toburn her mother.The information compelled PWs 1 and 8 to rush to thehouse of the deceased and, as the factual matrix would show, PW-1, beingyoung in age, reached the house of his sister earlier than his father andfound his sister was burning and she told him that it was the accused-appellant who had put her ablaze by pouring kerosene.The brother pouredwater on the deceased in order to extinguish the fire and thereafter tookher to Deen Dayal Upadhyay Hospital where she could not be admitted due tolack of facility and thereafter they brought her to Safdarjung Hospitalwhere she was admitted.Despite availing treatment, she breathed her laston 3.11.1997 about noon.It is necessary to mention here that after thedeceased was taken by her father and brother to the hospital, twoneighbours, namely, Shanker Lal and Surender, PW-2 and PW-4 respectivelywent to the Police Station at Mangol Puri and gave the information aboutthe 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 hadquarreled and her mother had suffered burn injuries and was taken to thehospital.As the prosecution case would further unfurl after thedeath took place they proceeded with the investigation, seized the burntclothes, a quilt, one plastic cane, one match-box and match stick and sentthe dead body for post mortem.The investigating agency in course ofinvestigation arrested the husband on 03.11.1997 and after recording thestatements of number of witnesses laid the chargesheet for the offencepunishable under Section 302 IPC before the competent Court, which in turncommitted the matter to the Court of Session and eventually it was tried bythe learned Additional Sessions Judge.The accused abjured his guilt and pleaded that he was not at home ashe had gone to his sister's place, Shyamwati, DW-1 at MJ-1/61, Vikas Puri,Delhi and claimed to be tried.The prosecution in order to substantiate the charges leveled againstthe accused person, examined as many as 21 witnesses and got number ofdocuments exhibited.On the basis of the ocular and the documentaryevidence, the learned trial Judge came to hold that the prosecution hadestablished the charge levelled against the accused to the hilt andaccordingly convicted him under Section 302, I.P.C and imposed the sentenceas has been stated hereinbefore.On an appeal being preferred, the High Court reappreciating theevidence and placing reliance on the oral dying declaration and thetestimony of the brother and further accepting the post mortem report foundthat the learned trial Judge had really not faulted in recording theconviction.Being of this view, it dismissed the appeal.We have heard Ms. Nupur Choudhary, Advocate (Amicus Curiae) for theappellant and Mr. W.A. Quadri, counsel for the State.It is submitted by Ms. Nupur Choudhary, learned Amicus Curiae thatthe learned trial Judge as well as the High Court has erroneously recordedthe conviction against the appellant though PW-3, the daughter of thedeceased, had not supported the case of the prosecution and she being theprincipal witness, the accused deserved to be acquitted.Mr. Quadri, learned counsel for the State, per contra, would contendthat though the daughter of the deceased, PW-3, has turned hostile yet herevidence cannot totally be brushed aside as both the prosecution and thedefence can rely on such parts of the testimony which are favourable tothem.To appreciate the rivalised submissions raised at the bar, we haveperused the judgments of the trial Court and the High Court with concernedanxiety and cautiously scrutinized the evidence on record.As we find,there are basically seven witnesses whose evidence are important, they areSatish, 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 whoinformed the police at the first instance and Vijender Singh, PW-21, thesub-Inspector who recorded the statement.At this juncture, it isnecessary to mention that apart from PW-3, PWs 2, 4 and 8, were alsodeclared hostile by the prosecution and were cross-examined by the state.It was PW-3, the daughter of the deceased, whowitnessed the quarrel and rushed to the home of her grandparents.Thelearned trial Judge has put the relevant question to her to find outwhether she was in a position to understand the questions and depose inCourt.In her evidence, she had stated that on the fateful day about 11.00p.m.her mother was preparing food for the children and for the saidpurpose she was pouring kerosene oil in the stove as it was empty andthereafter when she tried to light the stove, the kerosene oil was notcoming from the nozzle of the stove, then the deceased inserted a pin inthe 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 notehere that she has first deposed that she was not aware who had removed hermother to the hospital and thereafter changed her stand stating that heruncle had removed her mother.As her testimony would show she has notmentioned whereabouts of her father at the time of the incident.Herignorance about how the mother was shifted to the hospital shows that asthe High Court has correctly analysed, she has not spoken anything abouther father in order to protect him.Keeping in abeyance whether the pleaof alibi taken by the accused is proven or not to be dealt with at a laterstage, we think it apposite to scan the evidence of other witnesses.PW-1,the brother of the accused, has unequivocally deposed that after gettingthe information from Seema, PW-3, his father and he rushed to the house ofthe deceased.As is evincible from the testimony, he reached the house ofthe sister first and found she was burning and she told him that hisbrother-in-law had poured kerosene and put her ablaze.She has also statedthat 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 andthe items were seized in presence of the witnesses.In the cross-examination, no suggestion has been given about the absence of husband inthe house, contrivance of the dying declaration by him or anything whichwould create a dent in his testimony.What has been sought to be broughtin the cross-examination is that no one was present in the room of thedeceased and certain other questions which have nothing to do with theincident.It has been suggested to him that his sister and the accused hadkept Rs.90,000/- with his father, PW-8, for purchasing a house and as theyrefused to return the money, they had, getting an opportunity, falselyimplicated the accused.It has also come out in the cross-examination thatthe accused was a habitual drinker and gambler and his family was supportedby the in-laws."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."In the cross-examination he has categorically denied the suggestionthat the injuries received by the deceased could have been sustainedbecause of kerosene oil from the stove fell on her body due to the pinningof the stove and also by fall of a tin of kerosene oil on the floor.Hehas deposed without any equivocation that the burn injuries sustained bythe deceased were not possible due to accidental burns.The High Court hastaken note of the FSL Report, Ext. PW 20/B, from which it is evident thatthe analysis by gas liquid chromatography showed, kerosene oil residueswere found on the scalp hair of the deceased.It is apt to note that thepresence of kerosene on the scalp hair of the deceased and presence of dustparticles in the larynx of the deceased clearly evince that kerosene oilwas poured on the skull of the deceased which could not have happened byaccident.The testimony of the daughter, Seema, PW-3, a young girl of tenyears that the kerosene oil accidentally spilled on the body of her motheris thus absolutely unbelievable.The use which the defence can make of the medicalevidence is to prove that the injuries could not possibly have been causedin the manner alleged and thereby discredit the eye-witnesses.Unless,however the medical evidence in its turn goes so far that it completelyrules out all possibilities whatsoever of injuries taking place in themanner alleged by eyewitnesses, the testimony of the eye-witnesses cannotbe thrown out on the ground of alleged inconsistency between it and themedical evidence.It is also true that the post-mortem report by itself isnot a substantive piece of evidence, but the evidence of the doctorconducting the post-mortem can by no means be ascribed to be insignificant.The significance of the evidence of the doctor lies vis--vis the injuriesappearing on the body of the deceased person and likely use of the weaponand it would then be the prosecutor's duty and obligation to have thecorroborative evidence available on record from the other prosecutionwitnesses.It is also an accepted principle that sufficient weightageshould be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but givingweightage does not ipso facto mean that each and every statement made by amedical witness should be accepted on its face value even when it is self-contradictory.Such an opinionshall be tested by the Court.That apart,it would be erroneous to accord undue primacy to the hypothetical answersof medical witnesses to exclude the eyewitnesses' account which are to betested independently and not treated as the 'variable' keeping the medicalevidence as the 'constant'.As per the evidence of thebrother, Satish, PW-1, he after reaching the place of occurrence found hissister ablaze and she had stated that her husband has poured kerosene onher and put her ablaze.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.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 theappellant-accused was there at home.Nothing has been elicited in thecross-examination.The prosecution has been able to establish that theoccurrence took place at 11.00 p.m. There is conclusive medical evidencethat the deceased did not suffer the injuries because of accidental fire.

Sections cited: Section 302 in The Indian Penal Code