The accused would certainly be entitled to the benefits of fair doubt if the testimony provided by the accused is of such a qualitative nature: Tripura High Court
If the evidence adduced by the accused is of such quality and 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 reasonable doubt. For that purpose, it would be a sound proposition that in such circumstances, the burden on the accused is rather heavy. The judgement was passed by the High Court of Tripura in the case of Mubarak Sarkar v. The State of Tripura [Crl. A(J). No. 03 of 2019] by Single Bench consisting of Hon’ble Justice Arindam Lodh. This appeal is filed against the judgment and order of conviction and sentence, passed by the learned Sessions court, whereby and whereunder, the appellant has been convicted and sentenced to suffer Rigorous Imprisonment for life along with a fine of Rs.10,000/ for the offence committed under Section-302 of IPC and further to suffer Rigorous Imprisonment for 5 years for the offence committed under Section-455 of IPC along with fine of Rs.5,000/ with default stipulations. Learned counsel for the appellant contended that there is no cogent evidence about the appellant’s involvement in the crime in question. The reliability of evidence let in by the prosecution has also been assailed in this appeal apart from other contentions concerning the surrounding facts, especially the evidence as elicited from the defence witnesses. According to counsel, apparent contradictions are being one is hit by another one. The learned counsel further heavily relied upon the defence witnesses where they have stated that the accused-appellant being a garbage cleaner working as DRW under Amarpur Nagar Panchayet, on the date and time of the incident was all along with other garbage cleaners and thus, had taken the plea of alibi. Learned counsel for the respondent has strongly relied upon the findings returned by the learned Sessions Judge in convicting the appellant. He submitted that the prosecution had been able to prove the case beyond a reasonable doubt. He further drew our attention to the two dying declarations, tried to persuade this Court that the bone of contention of the deceased is consistent in both the dying declarations that it was none but the appellant who set her ablaze. Relying upon the evidence of the prosecution witnesses, “the learned counsel quite candidly submitted that immediately after the incident the victim disclosed that it was the appellant who set her fire on her person pouring kerosene oil by lighting a matchstick.” While referring to this court judgment in the case of Suman Nama vs. the State of Tripura, wherein it was held that “When the presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counternarrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such quality and 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 reasonable doubt.”
 HIGH COURT OF TRIPURA Crl. A(J). No. 019 Mubarak Sarkar S o: Late Munaf Miah Sarkar of Samatal Palli Amarpur P.S. Birganj District: Gomati Tripura. V E R S U S The State of Tripura represented by the Secretary Home Department Government of Tripura. ….. Respondent. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE ARINDAM LODH Mr. Raju Datta Advocate. Mr. S. Debnath Addl. P.P. 17.03.2021 : : : For Appellant(s) For Respondent(s) Date of hearing Date of delivery of judgment and order : Whether fit for reporting : Arindam Lodh J] JUDGMENT & ORDER This appeal is directed against the judgment and order of conviction and sentence dated 04.12.2018 passed by the learned Addl. Sessions Judge Gomati Judicial District Udaipur in case No. S.T. 08(GT A) of 2016 whereby and whereunder the appellant has been convicted and sentenced to suffer Rigorous Imprisonmentfor life along with fine of Rs.10 000 for the offence committed under Section 302 of IPC and further to suffer RI for 5 years for the offence committed under Section 455 of IPC along with fine of Rs.5 000 with default Briefly stated one Habil Miah lodged a written complaint to the Officer in charge of Birganj Police Station inter alia stating that on 31.07.2015 at about 9.00 am when Hasina Begam was alone and watching TV suddenly Mubarak Sarkar the accused appellant herein came out below the cot and gagged her mouth with his hands and put kerosene oil on her person setting her ablaze. She was almost completely burnt. Hearing hue and cry her sister Dilwara Begam with her husband Khalil Miah had rushed to the spot. They took the victim to Amarpur Hospital wherefrom she was referred to Gomati Hospital and on 31.07.2015 at about 4.30 pm she was again referred to GBP Hospital. The victim was struggling with her life. The accused set Hasina Begam on fire with the intention to kill her. Pursuant to this complaint FIR No. 054 of 2015 was registered under Sections 455 326 307 of IPC. Being endorsed Sub inspector Bimalendu Saha started investigation. However on 04.08.2015 the victim succumbed to her injuries and the Investigating Officermade a prayer for adding Section 302 of IPC which was allowed. Two dying declarations were recorded by two doctors during the treatment of the victim firstly on 31.07.2015 at about 2.30 pm at District Hospital Gomati by the Medical Officer Dr. Umakanta Acharjeeand secondly on the same day at about 8.05 pm at AGMC & GBP Hospital by the Deputy Collector and Magistrate Agartala namely Takshiray Debbarma in presence of Dr. Goutam Debbarma who certified that the victim was mentally fit to give statements. After completion of investigation charge sheet was submitted against the accused appellant under Sections 455 302 of IPC. The case was committed to the Court of Learned Sessions Judge Udaipur Gomati District and the same was transferred to the Court of Learned Addl. Sessions Judge to conduct the trial. On receipt of the record charges were framed against the accused appellant under Sections 455 302 of IPC and the contents were read over to which he pleaded not guilty and claimed to be tried. To substantiate the charges prosecution had examined as many as 22 numbers of witnesses and at the closer of recording evidences by the prosecution side the accused appellant was examined under Section 313 of Cr. P.C. and when he was being noticed about all the incriminating evidences and mitigating circumstances as surfaced from the evidence and materials on record he denied all the allegations leveled against him as false. The accused appellant also adduced 9(nine) witnesses in support of his defence case. Arguments advanced by the learned counsel appearing for the parties were heard and the learned Addl. Sessions Judge after considering the prosecution and defence evidences returned a finding of guilt against the accused and convicted & sentenced him as afore stated. This judgment and conviction has been assailed by the convict appellant by way of presenting the instant appeal before us. We have heard Mr. Raju Datta learned counsel appearing for the accused appellant. Also heard Mr. S. Debnath learned Addl. P.P. appearing for the State respondent. Mr. Datta learned counsel appearing on behalf of the accused appellant would contend that there is no cogent evidence about appellant’s involvement in the crime in question. The reliability of evidence let in by the prosecution has also been assailed in this appeal apart from other contentions concerning the surrounding facts especially the evidences as elicited from the defence witnesses. Mr. Datta finds fault in the two dying declarations recorded by two doctors. According to him there are apparent contradictions being one is hit by another one. Mr. Datta learned counsel has heavily relied upon the defence witnesses where they have stated that the accused appellant being a garbage cleaner working as DRW under Amarpur Nagar Panchayet on the date and time of the incident was all along with other garbage cleaners and thus had taken the plea of alibi. On the other hand Mr. S. Debnath learned Addl. P.P. appearing for the State respondent has strongly relied upon the findings returned by the learned Addl. Sessions Judge in convicting the accused appellant. He submitted that the prosecution had been able to prove the case beyond reasonable doubt. Mr. Debnath learned Addl. P.P. drawing our attention to the two dying declarationstried to persuade this Court that the bone of contention of the deceased is consistent in both the dying declarations that it was none but the accused appellantwho set her ablaze. Relying upon the evidence of the prosecution witnesses the learned Addl. P.P. quite candidly submitted that immediately after the incident the victim disclosed that it was the accused appellant who set her fire on her person pouring kerosene oil by lighting a matchstick. Having heard the learned counsel appearing for the parties we have made a thorough survey of the evidence and materials on record as surfaced from the prosecution as well as the defence witnesses. We have also kept in mind the rival submissions of the learned counsel appearing on behalf of the accused appellant as well as the State respondent. At the outset we should mention that as per prayer made by the accused appellant this Court allowed the accused to bring the Attendance Register maintained by the Amarpur Municipal Council and this Attendance Register has been brought on record by DW Anjoy Ghosh and the said Attendance Register was marked as Exbt.A wherein signature of the accused appellant was identified and marked as Exbt. A 1. Now coming to the evidences led by the prosecution witnesses PW 1 Habil Miah deposed that the deceased Hasina Begam was his sister in law who died out of burn injuries. Mubarak Sarkar the accused appellant set her on fire. On the fateful day of the incident he went to the house of his father in law when he received information about the incident from the neighbours of Hasina Begam. On the following morning he went to Agartala GBP hospital where Hasina Begam told him that she had applied for a loan and Mubarak Sarkar stood as surety and for that purpose he charged Rs. 20 000 from her. Later on she asked Mubarak Sarkar to refund the said amount which he denied. On that issue a dispute arose between the deceased and the accused appellant. She further told that on the day of incident at about 12.00 hours she went inside her room started watching TV lying on the cot before that the accused appellant hide himself below the cot and suddenly he came out and started scuffling with her. He tied her to the cot by means of saree and thereafter he doused kerosene oil upon her and set her on fire by lighting a matchstick. PW 1 further stated that after his return from GBP hospital Agartala he lodged a written complaint. He confirmed the said complaint and his signature thereon respectively. He further deposed that Hasina Begam succumbed to her injuries on the third day of the incident. She had two children who were at school at the relevant point of time. During his cross examination the defence had shown his statements made in the written complaint where he stated that on getting the information he went to the house of his father in law and that he was informed by the local residents that Mubarak Sarkar had set Hasina Begam on fire was found absent. Likewise some statements which he made in his chief examination were not found in the FIR viz. that his visit to GBP hospital and the deceased Hasina Begam told him that she applied for a loan and Mubarak Sarkar demanded Rs. 20 000 for that purpose and that Mubarak Sarkar was asked to return the said amount and that while watching TV there was scuffling with the accused appellant when the deceased was tied with the cot and thereafter doused kerosene oil. PW 2 Dilwara Begum is the sister of Hasina Begum the deceased. She deposed that at about 1200 hours on that fateful day she went to the house of Hasina Begum to take bath. Suddenly she heard cries of her sister shouting “bachau bachau” being a neighbour of Hasina Begum had rushed to the spot and saw Hasina with burn injuries. She was taken to hospital by some persons in a vehicle. On the following day police came and seized the wearing apparels of the victim by preparing seizure list. She put her signature in the said seizure list marked as and the wearing apparels on being identified and marked as deposed that on the day of incident at about 12 12.30 pm he along with his wife were taking bath at water tank situated adjacent to the house of Hasina Bagum. They heard a cry about fire incident. They rushed to the spot and found Hasina Begum running engulfed with fire in her courtyard. He immediately poured water on her through the bucket which he was having for bathing purpose. Thereafter many other persons reached there. PW 13 further deposed that when he along with other persons were taking her to the vehicle for shifting her to the hospital at that time on his enquiry as to how the incident had happened Hasina told that Mubarak Sarkar had set her on fire. In his cross examination he stated that he was not interrogated by the I.O. However he denied all the suggestions put forth by the defence that his statements in chief examination were fabricated. PW 14 Md. Abdul Hossain being the driver of one Maruti Alto being No. 639 has deposed that on 31.07.2015 he returned to his home by his vehicle to take lunch at about 12 12.30 pm. At that time he heard hue and cry in the house of Harun Miah and went to the spot and found that few persons were pouring water over Hasina Begum who was lying with burn injuries. People was asking him to bring his vehicle to take Hasina to the hospital and accordingly he brought his vehicle immediately and took Hasina Begum to Amarpur Hospital but she was referred to Tepania District Hospital Udaipur and he himself took her to the Udaipur hospital wherefrom she was again referred to GBP Hospital Agartala and he himself took Hasina to GBP Hospital Agartala. PW 14 further deposed that while he was shifting Hasina to Amarpur hospital he picked up her husband Harun Miah from Kathalbagan. At that time in the vehicle one sister of Hasina was also present. En route to Amarpur hospital he heard Harun Miah asking to Hasina about the incident when she told that Maburak Sarkar had set her on fire. PW 15 Shri Takshiray Debbarma was posted as DCM Sadar at Agartala on 31.07.2015. He deposed that on that day being directed by Sub Divisional Magistrate Sadar he went to the AGMC & GBP Hospital Agartala and recorded the dying declaration of a lady who was suffered from burn injuries. PW 15 further deposed that one doctor of the hospital namely Dr. Goutam Debbarma stated to him that the victim was in a fit state of mind to make declaration. Thereafter he recorded her statement and read over to her. She put her thumb impression and he also put his signature at the foot of the recorded statement. PW 15 further stated that the name of the victim was Hasina Begum. He identified his signature on the said declaration In his cross examination PW 15 stated that after recording the dying declaration he had taken it with him. He did not inform the matter to the police. On the following day he submitted the recorded dying declaration in the SDM Office Sadar. After recording the dying declaration he did not inform the SDM Sadar about the fact of recording deposition. He further stated that at the time of recording dying declaration he had put questions to the victim and recorded her answers to those questions. He had put many questions to her but recorded the relevant answers only. The victim answered all questions asked to her. He denied the suggestion put forth by the defence that he put suggestive questions to the victim and recorded the answers as sought for by him. He further denied that at the time of recording dying declaration the victim Hasina Begum was not in a fit state of mind. In his re examination PW 15 deposed that he recorded the dying declaration of the deceased on his own handwriting. He identified the said dying declaration recorded by him which on identification by the witnesses was marked asas a whole. He deposed that he endorsed the case for investigation to SI Sri Bimalendu Saha. PW 18 Dr. Umakanta Acharjee deposed that on 31.07.2015 he was posted as Medical Officer at District Hospital of Gomati at Tepania Udaipur. On that day at about 2.30 pm he received all information from one staff nurse of that hospital for the purpose of recording dying declaration of one patient namely Hasina Begum. Accordingly he went to the Female Surgical Ward where the patient Hasina Begum was admitted. He found the patient with 90% burn injuries. For the purpose of ascertaining whether she was alert well oriented to time place and person he asked few questions to her as “1. Where are you at present She replied that she was in Hospital. 2. Whether it was day or night She replied it was day time. 3. What was the time She replied about 2.00 to 2.30 pm.” After being satisfied he recorded the statement of the victim where she disclosed that when she entered into the room the accused appellant caught hold of her pressing her mouth with cloth and set her on fire after pouring kerosene oil on her body. He further deposed that he obtained the left thumb impression of the patient at the foot of the printed form for recording dying declaration which was filled up by him. He identified his signature on the said dying declaration and the signature thereon(Exbt.3 2). He also identified the LTI of the victim which was marked asas a whole. PW 20 Smti. Padmini Jamatia who was a staff nurse of Gomati District Hospital Tepania was on duty on 31.07.2015. She deposed that on that day Dr. Umakanta Acharjee of that hospital recorded the statement of Hasina Begum in her presence. She further deposed that Hasina Begum stated that on the day of incident Mubarak Sarkar came to her house pressed her mouth with cloth and set her on fire after pouring kerosene oil on her. She further deposed that Hasina Begum stated that there was an issue regarding payment of Rs. 20 000 to her. PW 21 Dr. Jayanta Sankar Chakraborty was posted as Medical Officer in the department of Forensic Medicine and Toxicology. On 03.08.2015 when he conducted postmortem examination over the dead body of Hasina Begum. He deposed that about 97% of the body surface area affected by that burn. PW 22 is S.I. Bimalendu Saha who investigated the case. In the instant case the accused appellant had adduced defence witnesses. The accused appellant himself adduced as DW 1. He deposed that on 31.07.2015 he went to his office at Nagar Panchayet Amarpur which runs from 7 am to 2 pm. He along with many other persons namely Ramesh Das Titu Malik Nikhil Debnath Usha Ranjan Das Soboja Begum Monora Begum and Sukanta Das went to different parts of the Amarpur town to collect garbage. Finishing their job at around 2 pm they returned to the Office and put their respective signatures in the Attendance Register. Thereafter to receive a fresh cheque book he went to Tripura State Cooperative Bank Amarpur Branch and there he received the same putting his signature in the relevant register. At around 3.30 pm he returned to his home. When he was taking bath and getting ready to take his lunch he was informed by his wife that Hasina Bibi committed suicide. In his cross examination he stated that he had no information of suicide and also that Hasina Begum was hospitalized. He admitted that Hasina Begum was his adjacent neighbour. He further stated that he was falsely implicated in this case. DW 2 Ramesh Das who deposed that on 31.07.2021 he was all along with the accused appellant and other garbage cleaners who were working under Amarpur Nagar Panchayet. DW 3 Sri Nikhil Debnath also deposed in the same tune as that of DW 2. DWs.4 5 6 7 and 8 deposed in the same tune that the accused appellant was all along with them while they were discharging their duties within the geographical area of the Amarpur Nagar Panchayet as garbage cleaners and after completing their jobs they all put their signatures in the Attendance Register maintained by Nagar Panchayet. DW 9 Shri Tarun Ch. Saha appeared before the Court on behalf of the Executive Officer Amarpur Nagar Panchayet who was authorized to depose on behalf of Shri Suresh Jamatia. He deposed that the attendance register reflects that Ramesh Das Titu Mali Nikhil Debnath Monour Begam and Saboja Begum were present in the office on 31.07.2015 and on 01.08.2015 and have put their respective signatures in the register. He further deposed that “it is fact that the garbage cleaner of our establishment perform their cleaning works inside the office complex as well as in other parts of Nagar Panchayet area. But the particular place concerned does not find reflection in any paper.” He stated in his cross examination that he had no personal information with regard to the work done by different garbage cleaners on 31.07.2015. He further stated in his cross examination that Amarpur Nagar Panchayet consists of 11 wards and it is spread over a geographical area of about 7 to 8 km. Being directed by this Court Sri. Anjoy Gohsh appeared before the witness box along with the Attendance Register of Amarpur Nagar Panchayet as DW. During his evidence he produced the Attendance Register certified by the Executive Officer of Amarpur Nagar Panchayet dated 01.01.2015. He deposed that all the garbage cleaners put their signatures in front of him and the signatures were known to him. He identified the signatures of Mubarak Sarkar which was marked as the Attendance Register marked as In his cross examination he stated that the duty of Mubarak Sarkar was not confined to the office but in the field too and house of Mubarak Sarkar is about one and half km from the Nagar Panchayet office which requires 20 minute walk from the Amarpur Nagar Panchayet office. The said DW could not say at what location Mubarak Sarkar had performed his duties on 31.07.2015. He further stated that at about 4.30 4.45 pm he heard about the incident of the burning of Hasina Begum. DW Anjoy Ghosh further stated in his cross examination that “it is a fact that before or after putting signature if a person leaves the office and does something else beyond his allotted duty outside the complex of the office it is not possible for us to say that”. He further stated that he “he could not say whether Mubarak Sarkar committed the offence before or after putting his signature in the attendance register.” To appreciate the entire evidence brought on record at the very threshold we would like to peruse the two dying declarations as made by the victim. On close reading of the two dying declarations we find commonality in the material part of the declarations that Mubarak Sarkar had slept with her and set her ablaze by pouring kerosene oil kept in her room. In the first dying declaration recorded by Dr. Umakanta Acharjee at Tepania District Hospital Udaipur he declared that on the date of incident in the morning the accused appellant had kept himself concealed under the cot and at around 12 O’clock at noon he entered into the room and set her on fire by way of pouring kerosene oil by closing her mouth with cloth. In the second dying declaration recorded by Dr. Goutam Debbarma it transpires that the victim declared that in absence of her husband the accused appellant wanted to develop physical relationship with her and there was an altercation between them and thereafter suddenly he poured kerosene oil kept in her room in a drum and set her on fire and lit her using matchstick. We found that Dr. Umakanta Acharjee in his evidence clearly stated that he found the victim was mentally fit and oriented to make declaration. PWs 6 and 20 the two staff nurse also supported the statement of the victim as well as Dr. Umakanta Acharjee. They identified the left thumb impression of Hasina Begum and also the signature in the prescribed format as witness in the second dying declaration. Dr. Gautam Debbarma declared the victim is mentally fit to give statement. Thereafter the DCM Sri Takshiray Debbarma recorded the statement in his own handwriting and certified the same that he recorded the statement of the victim on 31.07.2015 at 8.05pm at the female ward No.1 had put questions to ascertain the mental alertness and orientation of the victim Hasina Begum. We find no infirmity in the material part of the dying declaration that it was none but Mubarak Sarkar who set ablazed the victim Hasina Begum by pouring kerosene oil and is admissible in evidence under Section 32(1) of the Evidence Act. The two dying declarations albeit spoke about two different facts and all the facts declared by the victim are found to be related to the cause of death and such statements cannot in any way be termed as contradictory. Apart from the said two dying declarations we found the statements of PW 2 the sister of the victim who rushed to the spot and poured water on her and when she made inquiry as to how the incident had happened the victim told that out of a dispute of returning Rs.20 000 Mubarak Sarkar set her on fire by pouring kerosene oil. PW 2 in her deposition mentioned the name of Amena Bibi who arrived at the spot immediately after the occurrence. The said Amena Bibi and Harun Miah supported the statement of PW 2 that on being inquired the victim told that Mubarak Sarkar set her on fire by pouring kerosene oil. Similarly PWs 3 4 5 6 and 13 corroborated the versions of the victim made before Amena Bibi and Harun Miah reported in8 SCC 779 the Apex Court re iterates the law relating to dying declarationthus: “20. A Dying declaration is relevant evidence as declared by Section 32 of the Indian Evidence Act 1872. A distinction exists however between English Law and Indian Law in regard to dying declaration. We may in this regard note the declaration of the law contained in Kishan Lal v. State of Rajasthan1(SCC p.316 para 18): “18. Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death. So under the English law for its admissibility the declarant should have been in actual danger of death at the time when they are made and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law the admissibility rests on the principle that a sense of impending death produces in a man s mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence are 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 the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of the Indian law while testing the credibility of such dying declaration weightage can be given. Of course depending on other relevant facts and circumstances of the case.” Emphasis supplied) 21. But when a declaration is made either oral or in writing by a person whose death is imminent the principle attributed to Mathew Arnold that “truth sits upon the lips of a dying man” and no man will go to meet his maker with falsehood in his mouth will come into play. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben v. State of Gujarat3 wherein the concepts are summed up as followsThere is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.(Munna Raja v. State of M. P.). ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. State of U.P. v. Ram Sagar Yadav1 SCC 552: 1985 SCC Cri) 127: AIR 1985 SC 416] Ramawati Devi v. State of Bihar1 SCC 211: 1983 SCC169 : AIR 1983 SC 164] iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make v. Public Prosecutor3 SCC 618: 1976 SCC473: AIR 1976 SC 1994] ). K. Ramachandra Reddy iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. 4 SCC 264 : 1974 SCC426] ) v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. 645: AIR 1982 SC 1021] vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.2 SCC 654: 1981 SCC581]) vii) Merely because a dying declaration does not contain the details as to the occurrence it is not to be rejected. 364: AIR 1981 SC 617]) viii) Equally merely because it is a brief statement it is not be discarded. On the contrary the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC519 : AIR 1979 SC 1505] ) ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration the medical opinion cannot prevail.342: AIR 1988 SC 912]) x) Where the prosecution version differs from the version as given in the dying declaration the said declaration cannot be acted upon.No. 315] decided on 03.05.2019 stated thus: “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 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 prosecution satisfactorily.” Explaining further “When presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence normally the court would be slow to believe any counternarrative 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 reasonable doubt. For that purpose in such it would be a sound proposition that circumstances the burden on the accused is rather heavy. It follows therefore that strict proof is required for establishing the plea of alibi.” According to us the evidence in regard to involvement of accused appellant in the crime is so galore and overwhelming that it turns the accused’s plea of alibi a total lie. The prosecution witnesses have been able to substantiate the charges framed against the accused appellant beyond reasonable doubt that he committed murder of the deceased Hasina Begum by pouring kerosene oil. The scientific examiner has confirmed that the drum along with the liquid seized by the I.O. were a drum containing kerosene oil. So this circumstance also supports the prosecution case. On overall assessment of the evidence and materials on record there is no scope to record a different finding than that of the finding as returned by the learned Addl. Sessions Judge Gomati Judicial District Udaipur in convicting and sentencing the accused appellant as set forth in his judgment and order dated 04.12.2018 in connection with the case No. S.T. 08(GT A) of 2016 (T 1). In the result the appeal preferred by the convict appellant stands dismissed. The judgment and order passed by the learned trial Court are affirmed. The appellant is to suffer the remaining period of Send down the LCRs. JUDGE CHIEF JUSTICE 