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2022 DIGILAW 1032 (ALL)

Vipin v. State of U. P.

2022-07-07

RAMESH SINHA, SAROJ YADAV

body2022
JUDGMENT : Saroj Yadav, J. 1. This criminal appeal has been preferred against the judgment and order dated 15.5.2014 passed by Additional Sessions Judge, Court No.2, Hardoi in Sessions Trial No.18/2013 arising out of Case Crime No.315 of 2012 wherein convict/appellant was tried under Sections 498-A, 304-B of the Indian Penal Code, 1860 (in short I.P.C.) and under Section 3/4 of the Dowry Prohibition Act (in short D.P. Act.) and in alternate to Section 304-B to under Section 302 I.P.C., Police Station Atrauli, District Hardoi whereby the convict/appellant was acquitted under Sections 498-A, 304-B I.P.C. and under Section 3/4 of the D.P.Act but convicted under Section 302 I.P.C. and sentenced to life imprisonment coupled with a fine of Rs.20,000/-and in default of payment of fine, to undergo further imprisonment for six months. 2. The facts necessary for disposal of this appeal shorn of unnecessary details, are as follows : i). A First Information Report (in short F.I.R.) was registered as Case Crime No.315 of 2012, under Sections 498-A and 304-B I.P.C. and under Section 3/4 of the D.P.Act. at Police Station Atrauli, District Hardoi on 26.4.2012, on the basis of a written report submitted by the complainant Newaji. It was narrated in the written report that the complainant married his daughter Seema Devi to Vipin about two years ahead. Vipiin, Bachaan and Bittan were demanding one gold chain, one gold ring and a motorcycle in dowry. It was told by Seema Devi, daughter of the complainant many times that she was being tortured for non -fulfillment of the demand of dowry. The complainant placated them many times but they did not yield. On 22.4.2012, Seema Devi, daughter of the complainant was burnt after dousing with kerosene oil by Vipin, Kedar and Bittan. After burning Seema Devi, persons from her matrimonial home carried her to the hospital where she died during treatment and in-laws ran away after leaving the dead body. He (the complainant) somehow got the information and reached at Balrampur Hospital alongwith his family members and found the dead body of Seema Devi. The complainant got the post-mortem-examination done in the medical college and brought the dead body to his home and cremated. ii). He (the complainant) somehow got the information and reached at Balrampur Hospital alongwith his family members and found the dead body of Seema Devi. The complainant got the post-mortem-examination done in the medical college and brought the dead body to his home and cremated. ii). The report was lodged on 26.4.2012 at 4.00 p.m. The inquest of the dead body was also made on 23.4.2012 at 5.45 p.m. to 6.45 p.m. at mortuary of Balrampur Hospital, Lucknow, on the information received from the Balrampur Hospital, Lucknow which is Exhibit Ka-5 on the record. Thereafter, the dead body was sent for post-mortem-examination alongwith necessary papers by the officer who conducted the inquest. The post-mortem-examination of the deceased was conducted on 24.4.2012 at 12.50 p.m. by a panel of two doctors. Thereafter, the F.I.R. was registered on 26.4.2012 and case was investigated and chargesheet was submitted against the accused Vipin(husband of the deceased), Bachaan, brother in law of the deceased (Jeth) and Smt. Bittan, sister-in-law of the deceased (Jethani) under Section 498-A and 304-B of the I.P.C. and Section 3/4 of the D.P.Act. The Magistrate concerned took cognizance of the case and committed the same to the court of Sessions for trial. Learned Sessions Court framed charges against all the three accused persons namely Vipin, Bachaan and Smt. Bittan, under Sections 498-A and 304-B and in alternate, a charge under Section 302 I.P.C. was also framed. Further a charge under Section 3/4 of the D.P.Act was also framed. iii). All the accused persons denied the charges and claimed to be tried. iv). The prosecution in order to prove its case, examined seven witnesses, which are as under : a. P.W.-1-Newaji (the complainant and father of the deceased) b. P.W.-2 -Smt. Shiv Pyari (the mother of the deceased). c. P.W.-3-Shri Vivek Chandra, C.O. who investigated the case, initially. d. P.W.-4 -Police Constable Rakesh Bahadur Singh who registered the case and made entry in the concerned General Diary (G.D.) e. P.W.-5 -Shri Surendra Bahadur Yadav, S.D.M. who conducted the inquest of the dead body and sent the same for post mortem. f. P.W.-6 -Shri Sukh Ram Bharti, who is second investigating officer and took over the investigation from Shri Vivek Chandra (P.W.-3). g. P.W.-7-Dr. Sushil Kumar Srivastava who conducted autopsy on the cadaver. v). f. P.W.-6 -Shri Sukh Ram Bharti, who is second investigating officer and took over the investigation from Shri Vivek Chandra (P.W.-3). g. P.W.-7-Dr. Sushil Kumar Srivastava who conducted autopsy on the cadaver. v). Apart from oral evidence, relevant documents have also been proved by the prosecution, which are as under : a. Exhibit Ka-1-Written report. b. Exhibit Ka-2 -Site Plan. c. Exhibit Ka-3-Chik F.I.R. d. Exhibit Ka-4-Concerned G.D. e. Exhibit Ka-5 -Inquest report. f. Exhibit Ka-6 -A letter to the C.M.O. g. Exhibit Ka-7-Challan Nash. h. Exhibit Ka-8-Photo Nash. i. Exhibit Ka-9-Specimen Seal. j. Exhibit Ka-10-Chargesheet. k. Exhibit Ka-11 -Post-Mortem-examination Report. vi). After close of prosecution evidence, the statement of the accused persons were recorded under Section 313 Cr.P.C. wherein accused Vipin admitted his marriage with the deceased but disputed the date of marriage. He denied the allegation of demand of dowry and stated that Seema Devi got burnt accidentally. When the fact came to his knowledge, he got her admitted in the hospital where she died. He denied the fact that he ran away from the hospital leaving the dead body of the deceased. He also stated that report was lodged due to enmity and witnesses have deposed falsely. He further stated that he himself informed about the incident to the family of the deceased. In the last, he stated that he used to live alongwith Seema Devi in his own house. Seema Devi was alone in the house and she got burnt accidentally while cooking food. When he received information about the incident in the field, then he carried her for treatment and sent the information to her parental home. On this, persons from her parental home came and demanded money from him. When he did not pay then they got lodged the F.I.R. falsely. No witness in defence was produced by the convict/ appellant, though opportunity was given by the trial Court. vii). The learned trial Court after hearing the arguments of both the sides and analyzing the evidence available on record, came to the conclusion that all the ingredients of Section 304-B I.P.C. are not proved. It has not been proved that the incident occurred within seven years of marriage as the period of marriage or the date of marriage has not been proved by the prosecution. It has not been proved that the incident occurred within seven years of marriage as the period of marriage or the date of marriage has not been proved by the prosecution. Learned trial Court also came to the conclusion that the fact of demand of dowry was also remained unproved as P.W.-1 and P.W.-2 father and mother of the deceased, respectively have stated in their statements made before the trial court that they sent their daughter with Vipin last time happily and there was no demand at that time. Learned trial court also took note of the statement of P.W.-1 that no report of demand of dowry or of torture was lodged by him nor any 'panchayat' was called by him. P.W.-1 and P.W.-2 both in their statements, have stated that they are poor persons but the accused Vipin has some agricultural land and he does farming on that. Learned trial Court also concluded that the information was given by the convict himself as in the cross examination, both P.W.-1 and P.W.-2 have accepted that they received the information of the incident from Vipin on telephone. viii). Learned trial court acquitted Bachaan and Bittan finding no role of them as there was evidence on record that they live separately in their own house and the investigating officer also did not show in the site plan the house of the Bachaan and Bittan as per their statement, their house is after 10-15 houses of the place of occurrence. The trial Court held guilty Vipin for the alternate charge framed i.e. under Section 302 I.P.C. as in the opinion of the trial court, the deceased died of burnt injuries in the house of her husband and in the post-mortem-examination report four contusions were found on the cadaver. No explanation about contusions found were offered by the convict. In the opinion of the learned trial Court, it was the duty of the convict Vipin who is the husband of the deceased to explain how she died and who caused contusions on her body. Under Section 106 of the Indian Evidence Act, the onus lies on the accused to explain the facts specially within knowledge. Hence, the learned trial court held the convict guilty under Section 302 I.P.C. and sentenced him to life imprisonment coupled with a fine of Rs.20,000/-and in default, further sentence of six months. ix). Under Section 106 of the Indian Evidence Act, the onus lies on the accused to explain the facts specially within knowledge. Hence, the learned trial court held the convict guilty under Section 302 I.P.C. and sentenced him to life imprisonment coupled with a fine of Rs.20,000/-and in default, further sentence of six months. ix). Learned trial court acquitted the convict of charges framed under Section 498-A, 304-B I.P.C. and Section 3/4 of the D.P.Act. 3. Being aggrieved of the above conviction and sentence, this appeal has been preferred. 4. Heard Shri Rama Kant Jaiswal, learned counsel for the convict/appellant and Mrs. Ruhi Siddiqui, learned A.G.A. for the respondent State. 5. Learned counsel for the convict/appellant argued that the judgment and order passed by he learned court below is erroneous and against the evidence available on record. The F.I.R. was lodged after a delay of four days of the incident i.e. after due deliberations with mala fide intentions. The oral evidence and medical evidence do not inspire confidence and are contradictory. The appellant was not present at the place of occurrence as he was working in his field at the time of the incident. When he received the information of the incident, he himself admitted the deceased in a hospital and sent information to the parental home of the deceased. He further submitted that no odour of kerosene oil was found by the doctor conducting the post-mortem-examination. He further argued that the question regarding contusions found on the body of the deceased was not put to the appellant under Section 313 of the Cr.P.C. which is a great error and the accused cannot be supposed to explain these contusions. He further argued that Section 106 of the Evidence Act shall not apply in the facts and circumstances of the case because prosecution did not prove its case beyond reasonable doubt. First, the prosecution has to prove its case only after that the burden shifts on the appellant to offer explanation. He further argued that in fact the deceased caught fire accidentally while cooking food. He further argued that the appellant was not the only person who was residing in the house, his parents also reside in the same house, so the burden under Section 106 of the Evidence Act does not lie on him only, to explain the injuries found on the body of the deceased. He further argued that the appellant was not the only person who was residing in the house, his parents also reside in the same house, so the burden under Section 106 of the Evidence Act does not lie on him only, to explain the injuries found on the body of the deceased. He further argued that the contusions found on the body of the deceased might occur while running here and there in a burning state with pegs and grass-cutting machine which is usually kept in the villages for cutting the fodder for the cattle. 6. Learned counsel for the convict/appellant relied upon the case laws Samsul Haque Vs. State of Assam : 2019(18) SCC 161 . and also on extracts of book C.D. FIELD'S Commentary on LAW OF EVIDENCE ACT, 1872 contained on page no.4640 and 4641. 7. Contrary to it, learned A.G.A. argued that the deceased was staying with her husband, the convict, in the same house. The convict got her admitted in the hospital. Thereafter, he ran away from the scene. It is the version of the convict himself that he got her admitted in the hospital. The fact that the cremation was done by the parents of the deceased, has not been disputed. The conduct of the convict/appellant after the incident gives support to the version of the prosecution. The convict in his statement under Section 313 of the Cr.P.C. has stated that the deceased caught fire accidentally while cooking food but this statement of the convict is not reliable because in the site plan, the place of incident has been shown as a room with a bed. If the deceased was cooking food there and caught fire accidentally, then why other articles kept in the room were not burnt. The convict/appellant has also stated in his statement under Section 313 Cr.P.C. that he was not present at the spot when incident occurred. But no such evidence has been led by the convict/appellant to prove the plea of alibi i.e. his absence from the place of incident. The contusions found on the body of the deceased has not been explained and no such suggestion has been put to the doctor P.W.-7 that these contusions occurred due to the fact that the deceased was running here and there in a burning state and dashed to pegs or the grass cutting machine. The contusions found on the body of the deceased has not been explained and no such suggestion has been put to the doctor P.W.-7 that these contusions occurred due to the fact that the deceased was running here and there in a burning state and dashed to pegs or the grass cutting machine. The husband and wife living in a house and wife died an unnatural death i.e. due to burn injuries and contusions were found on her body, then a heavy burden lies on the husband under Section 106 of the Evidence Act, to explain how she sustained the contusions and got burnt. 8. Learned A.G.A. relied upon the following case laws : i). State of Rajasthan Vs. Parthu : (2009) 3 SCC (Cri) 507. ii). Shaikh Sattar Vs. State of Maharashtra : (2010) 3 SCC (Cri) 906. iii). Ranjit Kumar Haldar Vs. State of Sikkim : (2019) (3) JIC 192 (SC). 9. Considered the rival submissions, perused the original record of the trial court as well as of the appeal and also gone through the referred case laws. 10. Perusal of the record shows that in this matter, it is not disputed that the deceased was the wife of the convict Vipin and she was living with him in the same house. The date and place of occurrence is also not disputed. It is also not disputed that the deceased died of burn injuries that too in the house of the convict/appellant. The convict/appellant has also stated that after the deceased got burnt, he admitted her in the hospital. The stand of the convict Vipin is that the deceased caught fire accidentally while she was cooking food and he received information in the field where he was working and he came to the house and got her admitted in the hospital. Under Section 313 Cr.P.C., he has stated that he himself sent the information to the parental home of the deceased. On that, the persons from her parental home came and demanded money from him. He could not give money, therefore he was implicated falsely. His statement shows that he has admitted that he used to live alongwith the deceased in his house. According to him, Seema Devi was alone in the house at the time of incident. It is also deducible from his statement that he was in the field at the time of the incident. His statement shows that he has admitted that he used to live alongwith the deceased in his house. According to him, Seema Devi was alone in the house at the time of incident. It is also deducible from his statement that he was in the field at the time of the incident. Thus, the convict /appellant has taken the plea of alibi that he was in field when the incident occurred. But this fact has not been proved by him by any evidence. The burden of proving his presence in the field at the time of incident was on the convict/appellant himself but he did not adduce any evidence to prove the same. Secondly, he has stated that the deceased got burnt accidentally but this fact is also not believable in the absence of any evidence/material on record to prove the accidental burnt specially when the contusions were found on the cadaver of body in the post-mortem-examination. If the deceased caught fire accidentally, then how contusions have occurred on her body has not been explained by the convict/appellant. 11. Learned counsel for the convict/ appellant has tried to justify the contusions by arguing that these contusions might occur by dashing with pegs and grass cutting machine while running here and there in a burnt state. But no such suggestion has been made or any question has been asked in this regard, to the medical witness i.e. P.W.-7 who conducted the post mortem examination of the cadaver. Thus, this argument has no force in it. 12. Learned counsel for the convict/ appellant has vehemently argued that the prosecution has to stand on its own legs and to prove its case beyond all reasonable doubts and cannot shift the burden on the convict/appellant to explain how the death occurred. He relied upon the extract of the book C.D. FIELD'S Commentary on LAW OF EVIDENCE ACT, 1872 and submitted that Section 106 of the Evidence Act can have no application where a number of persons reside in the house and in this case, as per the statement of P.W.-1, the mother-in-law and father-in-law of the deceased also used to reside in the same house. Hence, the house was not in the exclusive possession of the convict/ appellant, therefore the burden under Section 106 of the Evidence Act cannot be laid on the convict/ appellant to explain how the deceased got burnt and how the contusions occurred. But this argument of the learned counsel for the convict/appellant is not tenable for the reason that the convict/ appellant himself has stated in his statement under Section 313 of the Cr.P.C. that he used to live with his wife Seema Devi in his house. He did not say that his parents were there when accident took place or the deceased caught fire accidentally while cooking food. 13. In Ranjit Kumar Haldar Vs. State of Sikkim (supra), Hon'ble Apex Court in this regard has held as under :- "14) The general rule is that the burden of proof is on the prosecution. Section 106 of the Act was introduced not to relieve the prosecution of their duty but it is designed to meet the situation in which it would be impossible or difficult for the prosecution to establish facts which are especially within the knowledge of the accused. 15) In Shambu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 , the Court held as under: “8. …Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.” Illustration (a) says- “A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.” 9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [ AIR 1936 PC 169 ] and Seneviratne v. R. [(1936) 3 All ER 36, 49]. xx xx xx 11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.” 14. In State of Rajasthan Vs. Thakur Singh, 2014(12) SCC 211 , Hon'ble Apex Court in this regard has held as under : 15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 16. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 16. Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said (AIR P 406, Para 11) : “11. This [Section 101 lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” 17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said : (SCC p 694, para 22) “22. It was said : (SCC p 694, para 22) “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” 15. In the present matter, the convict/appellant though has stated that he was in the field at the time when the incident occurred, has not led any evidence to prove that he was not present in the house and was in the field. The fact that the deceased caught fire accidentally while cooking food is also not believable in the absence of any evidence/material to prove that the other goods kept in the same room where she was allegedly cooking food and caught accidental fire, were not burnt. Furthermore, when the convict was not present at the time of incident, then how he came to know that his wife caught fire accidentally while cooking food. 16. Learned counsel for the convict/ appellant has vehemently argued that under Section 313 of Cr.P.C., the convict was not asked about the contusions found on the body of the deceased. So he cannot be supposed to explain the contusions found on her body. In support of his contentions, he relied upon Samsul Haque Vs. State of Assam (supra) wherein the Hon'ble Apex Court has laid down as under :- "22. It is trite to say that, in view of the judgments referred to by the learned Senior Counsel, aforesaid, the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam. The relevant observations are in the following paragraphs: “21. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam. The relevant observations are in the following paragraphs: “21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (Delhi Admn.) ( AIR 1976 SC 2140 ), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.” 17. No doubt the specific question has not been asked to the convict under Section 313 Cr.P.C. about the contusions found on the body of the deceased, but a question has been asked about the burning of Seema Devi by him after dousing with kerosene oil. He answered that she caught fire accidentally and he got her admitted in a hospital. When he was asked about the statement of P.W.-7, the doctor who conducted the post-mortem-examination, he showed his ignorance. He answered that she caught fire accidentally and he got her admitted in a hospital. When he was asked about the statement of P.W.-7, the doctor who conducted the post-mortem-examination, he showed his ignorance. In these circumstances, the referred case law is of no help to the convict/ appellant as convict/ appellant and the deceased were living in the same house at the time of the incident and she died of burn injuries and contusions were also found on her body that too on the vital parts of the body. No other articles of the house were found burnt. There is no evidence to show that the convict/ appellant was present at the spot at the time of incident as he alleges that he was in the field. 18. As far as argument of learned counsel for the convict/ appellant about the demand of money by the complainant is concerned, it is a very feeble argument, as the convict himself has stated that after the death of the deceased, they demanded money. Even if it is assumed that they lodged the report for not paying the money demanded, the factum of death of the deceased in the house of the convict due to burn injuries alongwith contusions received, cannot be wiped out merely on saying that they demanded money. No person has been examined even to prove this fact that the complainant demanded money. The medical evidence does not show the accidental death as contusions were found on the cadaver. The plea of alibi is to be established with certainty but no evidence has been led to establish the fact. 19. In Shaikh Sattar Vs. State of Maharashtra (supra), the Hon'ble Apex Court in this regard has held as under :- "35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in the case of Gurpreet Singh Vs. State of Haryana, (2002) 8 SCC 18 as follows: "20...... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the above noted concurrent finding of fact". 20. In the present case, it has not been explained who caused the contusions. The deceased caught fire accidentally. It is also not proved that the convict/appellant was working in the field at the time of incident. 21. Thus, to sum up, in this matter, the date and place of occurrence is not disputed. The medical evidence shows that the deceased died of ante-mortem burn injuries and contusions were also found on the cadaver. The convict/appellant did not prove the fact that he was in the field at the time of the incident. The statement of the convict that deceased caught fire accidentally while cooking food is not found reliable. The deceased and convict/ appellant were residing in the same house at the time of the incident, then it was the duty of the convict/appellant to explain how the deceased caught fire and how contusions occurred on her body. Hence, the learned trial court has rightly held the convict /appellant guilty under Section 302 I.P.C. for causing the death of his wife Seema Devi, and sentenced accordingly. There appears no reason or ground to interfere with the conviction and sentence recorded by the trial Court. 22. In the result, the appeal has no merit and is hereby dismissed. 23. The convict/appellant Vipin is in jail. He shall undergo the sentence awarded by the trial court. 24. Let the original record, received from trial Court be sent back alongwith the copy of this judgment, to the court concerned for information and necessary action.