# Ashiq Ali & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Criminal Appeal No. 4702 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashiq-ali-anr-in-jail-v-state-of-u-p-46838
- **Pages:** 8

## Headnote

A. Evidence Act (1 of 1872) S.32 - Dying
declaration - Dying declaration can be oral
or in writing & in any adequate method of
communication whether by words or by
signs or otherwise - When it is recorded,
no oath is necessary nor is the presence of
a magistrate is absolutely necessary,
although to assure authenticity it is usual
to call a magistrate, if available for
recording the statement of a man about to
die - when such statement is recorded by
a
magistrate
there
is
no
specified
statutory form for such recording - person
who records a dying declaration must be
satisfied that the deceased was in a fit
state of mind - Court in order to satisfy
whether the deceased was in a fit mental
condition to make the dying declaration
502 INDIAN LAW REPORTS ALLAHABAD SERIES
and had the opportunity to observe and
identify the assailant, look into the
medical opinion - where the eyewitnesses
state that the deceased was in a fit and
conscious state to make the declaration,
the medical opinion will not prevail, nor
can it be said that since there is no
certification of the doctor as to the fitness
of the mind of the declarant, the dying
declaration is not acceptable - Where it is
proved by the testimony of the magistrate
that the declarant was fit to make the
statement even without examination by
the doctor the declaration can be acted
upon provided the court ultimately holds
the same to be voluntary and truthful. A
certification by the doctor is essentially a
rule of caution and therefore the voluntary
and truthful nature of the declaration can
be established otherwise. (Para 8)

B. Dying declaration should be of such a
nature as to inspire full confidence of the
court in its truthfulness and correctness,
since the accused has no power of crossexamination - Court should see that the
statement of the deceased was not as a
result of either tutoring or prompting or a
product of imagination. (Para 8)

C. Penal Code (45 of 1860), S.302, S.304
Part I - Accused set deceased ablaze by
pouring kerosene oil on him - deceased
had 75% burn injuries - first dying
declaration was recorded at police station
where he declared the names of the
accused who set ablaze him - Held - Dying
declaration properly evaluated - Dying
declaration
of
deceased
proved
that
accused poured kerosene on deceased &
set him ablaze on fire - Injuries though
were sufficient in the ordinary course of
nature to have caused death but accused
had no intention to cause death of
deceased - death was not premeditated -
Conviction altered from S. 302 to S. 304
Part I. (Para 17,25, 26)

Writ Petition partly allowed. (E-4)

List of Cases cited: -

## Text

2 All. Ashiq Ali & Anr. Vs. State of U.P.
501
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ds le{k vkReleZi.k djsaA

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i=koyh vfoyEc lEcfU/kr U;k;ky; dks vuqikyukFkZ
Hksth tk,A
----------
(2021)02ILR A501
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4702 of 2012

Ashiq Ali & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri M.F. Ansari, Sri I.M. Khan, Sri N.I. Jafri,
Sri P.C. Mishra, Sri Rajesh Kumar Chauhan,
Sri Ranjeet Asthana

Counsel for the Opposite Party:
A.G.A.

A. Evidence Act (1 of 1872) S.32 - Dying
declaration - Dying declaration can be oral
or in writing & in any adequate method of
communication whether by words or by
signs or otherwise - When it is recorded,
no oath is necessary nor is the presence of
a magistrate is absolutely necessary,
although to assure authenticity it is usual
to call a magistrate, if available for
recording the statement of a man about to
die - when such statement is recorded by
a
magistrate
there
is
no
specified
statutory form for such recording - person
who records a dying declaration must be
satisfied that the deceased was in a fit
state of mind - Court in order to satisfy
whether the deceased was in a fit mental
condition to make the dying declaration
502 INDIAN LAW REPORTS ALLAHABAD SERIES
and had the opportunity to observe and
identify the assailant, look into the
medical opinion - where the eyewitnesses
state that the deceased was in a fit and
conscious state to make the declaration,
the medical opinion will not prevail, nor
can it be said that since there is no
certification of the doctor as to the fitness
of the mind of the declarant, the dying
declaration is not acceptable - Where it is
proved by the testimony of the magistrate
that the declarant was fit to make the
statement even without examination by
the doctor the declaration can be acted
upon provided the court ultimately holds
the same to be voluntary and truthful. A
certification by the doctor is essentially a
rule of caution and therefore the voluntary
and truthful nature of the declaration can
be established otherwise. (Para 8)

B. Dying declaration should be of such a
nature as to inspire full confidence of the
court in its truthfulness and correctness,
since the accused has no power of crossexamination - Court should see that the
statement of the deceased was not as a
result of either tutoring or prompting or a
product of imagination. (Para 8)

C. Penal Code (45 of 1860), S.302, S.304
Part I - Accused set deceased ablaze by
pouring kerosene oil on him - deceased
had 75% burn injuries - first dying
declaration was recorded at police station
where he declared the names of the
accused who set ablaze him - Held - Dying
declaration properly evaluated - Dying
declaration
of
deceased
proved
that
accused poured kerosene on deceased &
set him ablaze on fire - Injuries though
were sufficient in the ordinary course of
nature to have caused death but accused
had no intention to cause death of
deceased - death was not premeditated -
Conviction altered from S. 302 to S. 304
Part I. (Para 17,25, 26)

Writ Petition partly allowed. (E-4)

List of Cases cited: -

1. Kushal Rao Vs St. of Bom. AIR 1958 SC 22
2. Sharad Birdhichand Sarda Vs St. of Mah.
S.C.Cr.R.1985 page 28,

3. Samshul Haque Vs St. of Assam AIR 2019 SC
4163

4. Ashraf Ali Vs St. of Assam 2008(3) Crimes
(SC) 112

5. Ranvir Yadav Vs St. of Bih. 2009(4) Supreme
205

6. Sukhjit Singh Vs St. of Pun. 2014 Supreme
(SC) 667

7. Sujit Biswas Vs St. of Assam, 2013 Supreme
(SC) 503

8. Maheshwar Tigga Vs. St. of Jharkhand2020
SC 4535

9. Govindappa & ors. Vs St. of Karnat. (2010) 6
SCC 533

10. Laxman Vs St. of Mah. (2002) 6 SCC 710

11. Latoor Singh Vs St. of NCT of Delhi Criminal
Appeal No.10 of 2000 17.3.2015.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. By way of this appeal, the
appellants have challenged the Judgment
and order dated 9.11.2012 passed by court
of Additional Sessions Judge, Etha in
Sessions Trial No.578 of 2005, State Vs.
Ashiq Ali and Others arising out of Case
Crime No.80 of 2005 under Sections
302/34 I.P.C., Police Station Aliganj,
District
Etah
whereby
the
accusedappellant was convicted under Section 302
read with Section 34 of IPC and sentenced
to imprisonment for life with fine of
Rs.5,000/- in each.

2. The brief facts are that Tej Singh
met with a very tragic death when he was at
his field at night, both the accused came
2 All. Ashiq Ali & Anr. Vs. State of U.P.
503
and set him ablaze. He immediately went to
police station and conveyed that he was set
ablaze by the accused which was ascribed
as written report ( Exhibit-3) which
culminated into FIR which is Exhibit-5. On
dying declaration of Tej Singh, which is at
Exhibit-15 he named Ashik Ali and Ahmad
Raj Khan and stated that on 17.6.2005 at
about 10:00 p.m. when he was at fields of
Gajroob which is situated at village
Agaunapur, in furtherance of their common
intention so as to do away. The accused set
deceased ablaze by pouring kerosene oil on
him. They caused the death of Tej Singh.
During the investigation recovery of burn
cloths, injury report and post-mortem
report were produced on record. The
deceased succumbed to his burn injuries
that is why accused have been charged with
commission of offence under Section 302
read with 34 IPC.

3. The charge sheet was laid before
the learned Magistrate and as the case was
exclusively triable by the Court of
Sessions, it was committed to the Court of
Sessions. The learned Sessions Judge
summoned the accused read over charge
against them which were framed on
3.1.2006. The accused pleaded not guilty
and claimed to be tried.

4. The prosecution so as to bring
home
the
charges
examined
eleven
witnesses, who are as under:-

1
Rajrani
P.W.1
2.
Ahvaran
Singh
P.W.2
3.
Balram
Singh
P.W.3
4.
Dr. V.K.
Dubey
P.W. 4
5.
A.C.
Dubey
P.W. 5
6.
Narendra
Singh
P.W. 6
7.
Raj
Bahadur
P.W.7
8.
Rajesh
Kumar
P.W.8
9.
Virendra
Singh
P.W.9
10.
Dr. P. K.
Gupta
P.W.10
11.
M.U. Ali P.W.11

5. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:

1
F.I.R.
Ext. Ka-5
2.
Written
report
Ext. Ka-3
3.
Dying
declaration -
Tej Singh
Ext. Ka-15
4.
Recovery of
memo
of
Plastic
'Pipiya'
Ext. Ka-1
5.
Recovery
memo
of
burn Cloth
Ext. Ka-2
6.
Bed
Head
Ticket
Ext. Kha-1
7.
Photo
copy
of register
Ext. Ka-17
8.
Injury report Ext. Ka-16
9.
P.M. Report Ext. Ka-4
504 INDIAN LAW REPORTS ALLAHABAD SERIES
10.
Site
Plan
with Index
Ext. Ka-7

6. Learned counsel appearing on
behalf of accused-appellants has relied on
the decisions in Kushal Rao Versus The
State of Bombay, AIR 1958 SC 22, Sharad
Birdhichand Sarda Vs. State of Maharastra,
S.C. Cr.R.1985 page 28, Samshul Haque
Vs. State of Assam, AIR 2019 SC page
4163, Ashraf Ali Vs. State of Assam,
2008(3) Crimes (SC) 112, Ranvir Yadav
Vs. State of Bihar, 2009(4) Supreme 205,
Sukhjit Singh Vs. State of Punjab, 2014
Supreme (SC) 667, Sujit Biswas Vs. State
of Assam, 2013 ( Supreme ( SC) 503 and
Maheshwar Tigga Vs. State of Jharkhand,
2020 SC 4535.

7. Learned A.G.A. appearing on
behalf of State has relied on the decisions
in Govindappa and others Vs. State of
Karnataka, (2010) 6 SCC 533, Laxman
Versus State of Maharashtra, (2002) 6 SCC
710, Criminal Appeal No.10 of 2000 and
Latoor Singh Vs. State of NCT of Delhi
decided on 17.3.2015.

8. The juristic theory regarding
acceptability of a dying declaration is that
such declaration is 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 man is induced by the most
powerful consideration to speak only the
truth. Notwithstanding the same, great
caution must be exercised in considering
the weight to be given to this species of
evidence on account of the existence of
many circumstances which may affect their
truth. The situation in which a man is on
death bed is so solemn and serene, is the
reason in law to accept the veracity of his
statement. It is for this reason the
requirements of oath and cross-examination
are dispensed with. Since the accused has
no power of cross-examination, the court
insist that the dying declaration should be
of such a nature as to inspire full
confidence of the court in its truthfulness
and correctness. The court, however has to
always be on guard to see that the
statement of the deceased was not as a
result of either tutoring or prompting or a
product of imagination. The court also must
further decide that the deceased was in a fit
state of mind and had the opportunity to
observe
and
identify
the
assailant.
Normally, therefore, the court in order to
satisfy whether the deceased was in a fit
mental condition to make the dying
declaration look up to the medical opinion.
But where the eyewitnesses state that the
deceased was in a fit and conscious state to
make the declaration, the medical opinion
will not prevail, nor can it be said that since
there is no certification of the doctor as to
the fitness of the mind of the declarant, the
dying declaration is not acceptable. A
dying declaration can be oral or in writing
and
in
any
adequate
method
of
communication whether by words or by
signs or otherwise will suffice provided the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced to
writing by someone like a magistrate or a
doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence of a magistrate is absolutely
necessary, although to assure authenticity it
is usual to call a magistrate, if available for
recording the statement of a man about to
die. There is no requirement of law that a
dying declaration must necessarily be made
to a magistrate and when such statement is
recorded by a magistrate there is no
specified statutory form for such recording.
2 All. Ashiq Ali & Anr. Vs. State of U.P.
505
Consequently, what evidential value or
weight has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case. What
is essentially required is that the person
who records a dying declaration must be
satisfied that the deceased was in a fit state
of mind. Where it is proved by the
testimony of the magistrate that the
declarant was fit to make the statement
even without examination by the doctor the
declaration can be acted upon provided the
court ultimately holds the same to be
voluntary and truthful. A certification by
the doctor is essentially a rule of caution
and therefore the voluntary and truthful
nature of the declaration can be established
otherwise.

9. While considering the factual
situation, it emerges that the conviction is
based on dying declaration. It is an
admitted position of fact that the deceased
had 75% burn injuries. He was given
sedative. Evidence of PW-9 and PW-10 is
important. There was no signature of the
accused. There was ante-mortem injury on
the deceased who was admitted in the
hospital on 18.6.2005.

10. Learned counsel for the appellant
has taken us through the evidence and he
requested us again and again to peruse the
oral testimony. It is submitted that the
accused are in jail since 2012, more
particularly since 9.11.2012. Any of the
accused is not named in the FIR. It is
submitted that the medical evidence shows
that the deceased died on the next day i.e.
18.6.2005. It is submitted that PW-9 could
not have recorded the dying declaration at
2:00 a.m. The sedative was given to the
deceased as he was having 75% burns. He
could not give his declaration because of
the burn injuries coupled with the fact that
he was put to sedative and, therefore, all
witnesses except Dr. and Tehsildar have
not supported the case of the prosecution.
No specific question has been asked in the
statement recorded under Section 313 of
IPC.

11. Learned counsel for the appellant
has relied on the decisions have been
discussed herein above.

12. The submission of learned counsel
for State was that the first dying declaration
was recorded at 10:00 p.m. in the police
station where he went with burn injuries
and declared the names of the accused who
set ablaze him.

13. Learned AGA has taken us to the
meaning of compos mentis and he has
taken us to the fact that the conduct of the
deceased has also to be seen as to when he
was in the police station, he was in a fit
state of mind. It is submitted that the
sedative compos may not totally sever the
nervous system. There is no question in the
cross examination of Tehsildar that the
deceased was not in a fit state of mind.
Compass injection was given after the
dying declaration was recorded. It is further
submitted that the learned counsel for
appellant that there was no light so as to
identify the accused is also falsified by the
fact that in the place, the deceased saw the
accused. It is submitted that the judgment
of Kushal Rao (supra) will have to be
applied as he also relied on the same. The
accused has put the question on the dying
declaration in his examination under
Section 313 Cr.P.C.. PW-9 evidence is very
clear that the dying declaration was
explained to the deceased.

14. Having considered the decisions
cited by learned counsel for appellant, two
506 INDIAN LAW REPORTS ALLAHABAD SERIES
things emerge that the first statement was
made by the deceased when he went to give
his written report, in that also, he has very
categorically taken the names of the
accused. The depositions of Rajrani PW-1,
Ahvaran Singh-PW-2, Balram Singh-P.W.-
3, Dr. V.K. Dubey-P.W. 4, A.C. DubeyP.W. 5, Narendra Singh-P.W. 6, Raj
Bahadur-P.W.7,
Rajesh
Kumar-P.W.8,
Virendra Singh-P.W.9, Dr. P. K. GuptaP.W.10, M.U. Ali-P.W.11 cumulatively go
to show that the dying declaration cannot
be easily brushed aside. The testimony of
PW-2 is also in favour of prosecution.

15. We are left with the evidence of
PW-4
Dr.
V.K.
Dubey
who
had
performed the post-mortem. According to
him, the death had occurred day prior to
the day he had carried out the postmortem. The body had been mutilated
due to poring of kerosene oil. The police
authorities have also supported the dying
declaration, incident and that the Nayab
Tehsildar Dr. P.K. Gupta had certified
that the deceased who was injured had
deposed
on
oath
and
his
thumb
impression on the dying declaration was
taken. In the cross examination, PW-9
has withstood the cross examination and
has categorically stated that the deceased
was in proper sense and was conscious.
He had been admitted in the hospital on
18.6.2005 at 7:00 a.m.

16. PW-10 Dr. P.K. Gupta stated that
he had time and again seen the deceased
and he was in proper state of mind to give
his declaration. He has also withstood the
cross examination done by the defence. He
has explained the meaning of proper set of
mind and compos mentis. There was
superficial injuries of burns on the person
of the deceased. Dr. A.K. Sengar had given
the compos and had given the medicines.

17. We are convinced that the dying
declaration has been properly evaluated. PW11's evidence has also been properly evaluated.
PW-5 also properly evaluated. The death was
not homicidal death. The questions arises who
were the author of the said incident. Death
occurred due to poring of kerosene oil and
setting ablaze.

18. Learned Judge has discussed the
evidence regarding dying declaration and we do
not think that there is any reason to not believe
the same. The definition of compos mentis will
also not permit us to upturn the decision of
learned Judge as far it points the finger towards
accused and accused alone. In the light of the
decision of the Apex Court in Govindappa
and others (supra) there is no reason for us not
to accept the dying declaration and its
evidencily value under Section 32 of IPC.

19. The decision on which reliance is
placed by learned counsel would also not come
to the aid of the appellant as the facts are
different except that of Khushal Rao Versus
State of Mombay and Sharad Birdhichand
Sarda
Versus
State
of
Maharashtra,
Supreme Court Criminal Ruling 1985, Page
28 in which matter, the conviction was
confirmed.

20. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C. of
the Indian Penal Code should be upheld or
the conviction deserves to be converted
under Section 304 Part-I or Part-II of the
Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which read as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
2 All. Ashiq Ali & Anr. Vs. State of U.P.
507
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

21. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299 Section 300
A
person
commits
culpable
homicide if
the act by
which
the
death
is
caused
is
done-
Subject to certain exceptions
culpable homicide is murder
is the act by which the death
is caused is done.
INTENTION
(a) with the
intention of
causing
death; or
(1) with the intention of
causing death; or
(b) with the
intention of
causing such
bodily injury
as is likely
to
(2) with the intention of
causing such bodily injury as
the offender knows to be
likely to
cause the death of the person
to whom the harm is caused;
cause death;
or
KNOWLE
DGE
KNOWLEDGE
(c) with the
knowledge
that the act
is likely to
cause death.
(4) with the knowledge that
the act is so immediately
dangerous
that it must in all probability
cause death or such bodily
injury as is likely to cause
death,
and
without
any
excuse for incurring the risk
of causing death or such
injury
as
is
mentioned
above.

22. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar
and Another Vs. State of Karnataka,
reported in 1994 SUPP (1) SCC 304, we
are of the considered opinion that the
offence would be one punishable under
Section 304 part-I of the IPC.

23. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused had no intention to cause death of
deceased,
the
injuries
were
though
sufficient in the ordinary course of nature
to have caused death, accused had no
intention to do away with deceased, hence
the instant case falls under the Exceptions 1
and 4 to Section 300 of IPC. While
considering Section 299 as reproduced
herein above offence committed will fall
under Section 304 Part-I as per the
observations of the Apex Court in Veeran
508 INDIAN LAW REPORTS ALLAHABAD SERIES
and others Vs. State of M.P. Decided,
(2011) 5 SCR 300 which have to be also
kept in mind.

24. We have relied on the decision of
Kushal Rao (supra) to come to the conclusion
that the dying declaration has been rightly
and properly made the basis of punishing the
accused. The judgment in Maheshwar Tigga
(supra) will not come to the aid of the
accused as the facts are quite different.

25. From the aforesaid discussion, three
things emerge that it was homicidal death; the
author of the said offences were the
appellants but the injuries and the motives
were not such that the accused wanted to do
away with the deceased; and the evidence on
record will permit us to listen punishment to
the lower decree namely under Section 304 to
Part -I for a period of ten years. The default
sentence is maintained. If the accused have
completed ten years of incarceration, they be
set free. If they have not paid the fine, the
default sentence shall begin after ten years.

26. The appeal is partly allowed. Both
the accused are held guilty of offences
punishable under Section 304 Part-I read with
34 of IPC.

27. Record and proceedings be sent
back to the Court below forthwith.
----------
(2021)02ILR A508
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2021

BEFORE

THE HON'BLE VIVEK VARMA, J.

Criminal Revision No. 144 of 2021

Iqrar Ahmad ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ishwar Chandra Tyagi, Sri Anmol Kumar
Dubey

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 401/397 -
Negotiable Instrument Act, 1881 - Section
138-cheque
dishonoured-convictionparties
arrived
at
a
compromiserevisionist does not take effective steps to
compound the offence at initial stagesHowever, compounding of offence under
N. I. Act is no more res integra and the
offences can be compounded on any stage
of proceedings-the court allowed the
revision subject to payment of Rs. 5000/-
as cost to opposite party.(Para 4,7,12)

B. The petitioner had already entered into a
compromise with a complainant and the
complainant had appeared and stated that the
entire money had been received by him and he
had no objection if the conviction already
recorded u/s 138 of the Act is set aside. Once a
person is allowed to compound a case u/s 147
of the N. I. Act, the conviction u/s 138 of the
Act, should also be set aside.(Para 8)

The revision is allowed. ( E-5)

List of Cases cited:-

1. K.M. Ibrahim Vs K.P. Mohammad & anr.
(2010) 1 SCC 798

2. Damodar S. Prabhu Vs Sayed Babalal
H.(2010) 5 SCC 663

3. Meters & Instruments Pvt. Ltd. & anr. Vs
Kanchan Mehta (2018) 1 SCC 560

(Delivered by Hon'ble Vivek Varma, J.)

1. This revision has been filed against
the judgment and order dated 9.12.2020