# Ashiq v. State of U.P

- **Citation:** (2026) 4 ILRA 1176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-15
- **Case number:** Criminal Appeal No. 1924 of 2013
- **Bench:** Salil Kumar Rai, Dr. Ajay Kumar-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashiq-v-state-of-u-p-54714
- **Pages:** 25

## Text

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1176 INDIAN LAW REPORTS ALLAHABAD SERIES
16. The law regarding concession of probation in cases of attempt to commit an offence
punishable with life imprisonment stands clarified by the Hon'ble Supreme Court in the case of
State of Haryana Vs. Prem Chand, (1997) 7 SCC 756, and the relevant extract of the judgment is
reproduced here as under:-

 3. If the conviction of the appellant were to be one under Section 376 IPC he could have
been awarded imprisonment for life or one extending to 10 years. But the offence for which the
respondent has been found guilty, is for attempt to rape. Therefore, it is idle to contend that the
respondent has been held guilty for an offence which would attract imprisonment for life,
disentitling him to the benefit of probation under the aforementioned two statutes. Section 57 of the
IPC clearly points out that in calculating fractions of terms of imprisonment, imprisonment for life
shall be reckoned as imprisonment for 20 years. Thus, on employment of Section 511 IPC, the
punishment for the offence, for which an attempt has been made, would be for a term which may
extend to one half of the longest term of imprisonment provided for the offence. Therefore, for
offence under Sections 376/511 IPC, the respondent could be awarded imprisonment up to 10
years. On this reasoning, his case for probation was clearly made out, be it under Section 360
CrPC or under Section 4 of the Probation Act. The Court of Session, therefore, was not wrong in
extending to him such benefit and the High Court committed no error in declining to interfere
therein. The appeal thus has no merit and is, therefore, dismissed.

17. Thus, considering the nature of offence as well as the sentence imposed upon the
convict by the trial court, this Court deems it appropriate to extend the concession of Probation to
the appellant under Section 4 Probation of Offenders Act, 1958, keeping in view the law on the
subject.

18. Consequently, the order of sentence dated 8.7.1986 is modified and it is ordered that
the appellant be released on probation for a period of one year subject to his furnishing the requisite
bonds/undertaking to the satisfaction of the trial court.

19. Resultantly, the appeal is partly allowed, and while upholding the impugned judgment
of conviction dated 8.7.1986, an even date order on sentence is modified to the above noted extent.
---------
(2026) 4 ILRA 1176
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.04.2026

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE DR. AJAY KUMAR-II, J.

Criminal Appeal No. 1924 of 2013

Ashiq ...Appellant
Versus
State of U.P. ...Respondent
4 All. Ashiq Vs. State of U.P.
1177
Issue for consideration
Matter pertains to legality of order convicting u/s 304 IPC

Headnotes
Indian Penal Code-Section 304- case of burning a person alive- minor school going girl has been burned
alive by appellant- Ashiq named in the first information report and Ashish named by the deceased in her dying
declaration-victim remained conscious during her statement and she remained conscious even after her
statement- all prosecution witnesses of facts have turned as hostile- evidence of a hostile witness cannot be
discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or
the defence.- dying declaration - clear that her neighbour Ashish has burnt her-appellant is having two names
Ashiq and Ashish and is also the neighbour of informant dying declaration is brief, precise and reliable- trial
court did not frame charge under section 302 IPC- which could have been lawfully framed-rightly awarded the
maximum penalty i.e. life imprisonment - no ground to interfere. Appeal dismissed. (E-9)

Case Law Cited
1. K.P. Tamilmaran Vs. The State Rep. by Deputy Superintendent, 2025 INSC 576 / 2025 SCC OnLine SC 958
2. Koli Lakhmanbhai Chandabhai vs. State of Gujarat 1999 (8) SCC 624
3. Ramesh Harijan vs. State of U.P. 2012 (5) SCC 777
4. State of U.P. vs. Ramesh Prasad Misra and another 1996 AIR (Supreme Court) 2766
5. Irfan alias Naka Vs. State of Uttar Pradesh, 2023 SCC OnLine 1060
6. Sat Paul V. Delhi Administration (1976) 1 SCC 727
7. Khujji @ Surendra Tiwari v. State of Madhya Pradesh (1991) 3 SCC 627
8. Bhagwan Singh v. State of Haryana (1976) 1 SCC 389
9. Sri Rabindra Kuamr Dey v. State of Orissa (1976) 4 SCC 233
10. Syad Akbar v. State of Karnataka (1980) 1 SCC 30
11. Selvamani v. State Rep. by the Inspector of Police (2024) 19 SCC 112
12. Lakhan V. State of MP(2010) 8 SCC 514
13. Khushal Rao v. State of Bombay AIR 1958 SC 22
14. Kusa v. State of Orissa (1980) 2 SCC 207
15. Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182 (SCC p. 183, para 4)
16. Ranjit Singh v. State of Punjab (2006) 13 SCC 130
17. Nanhau Ram v. State of M.P. 1988 Supp SCC 152
18. Laxman v. State of Maharashtra (2002) 6 SCC 710
19. State of MP V. Dal Singh (2013) 14 SCC 159
20. PV Radhakrishnan V. State of Karnataka (2003) 6 SCC 443
21. Ram Bihari Yadav V. State of Bihar & Ors. MANU/SC0302/998
22. Atbir V. Govt. (NCT of Delhi) (2010) 9 SCC 1
23. Paniben v. State of Gujarat (1992) 2 SCC 474
24. PV Radhakrishnan V. State of Karnataka (2003)6SCC443
25. Naeem V. State of UP (2024) 3 SCR 36
26. Surajdheo Ojha & Ors. V. State of Bihar 1980 (Supp) SCC 769
27. Sat Paul V. Delhi Administration (1976) 1 SCC 727

List of Acts
1. Indian Penal Code, 1860
2. Indian Evidence Act,1872

List of Keywords
Dying declaration; certificate of fitness; medical opinion; clarity, and the conscious state of the declarant;
mental fitness; burn injuries.

Appearances of parties
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for Appellant(s) : Abhishek Mayank, Ajay Dubey, Haridwar Singh, Manoj Yadav Counsel for
Respondent(s) : Govt. Advocate

(Delivered by Hon'ble Dr. Ajay Kumar-II, J.)

1. The instant Criminal Appeal at the instance of convict - accused has been directed against
the judgment and order dated 30.03.2013 passed by Additional Sessions Judge, Court no.5, Agra in
Sessions Trial No.1474 of 2008 (State Vs. Ashiq and others) arising out of Case Crime No.290 of
2008, under Sections 304/34, 326/34 IPC, Police Station - Rakabganj, District Agra convicting and
sentencing the appellant under Section 304 I.P.C. read with Section 34 I.P.C. for life imprisonment
and a fine of Rs. Rs.20,000/- with stipulation of default clause.

2. Brief facts, as culled out from the record, are that the informant Pradeep gave a written
report on 21.07.2008 at the Police Station Rakabganj, District Agra that his daughter Vineeta is a
student of class IX in Anglo Bengali School and she had been photographed at a fair by her friend
Poojas brother Ashiq son of Raj Kumar with his friend Amit. Both Ashiq and Amit used to
blackmail his daughter by showing her photograph. Amit also used to demand money and call her
at his place. Kishore and Sethi are also involved with them. On 20.07.2008 in the evening, Ashiq
came on the roof of the informant along with Amit, poured kerosene oil on his daughter and Amit
set her ablaze and thereafter both of them fled away from the spot. At that time, the daughter of the
informant was alone in the house. The whole incident was narrated to the informant by his daughter
in severely burnt condition, who was admitted in emergency ward and according to Doctors, she
has sustained 90% burn injuries.

3. On 20.7.2008, the victim was admitted in S.N. Medical College, Agra for treatment and
on the same day at 10:30 P.M. the dying declaration (Ext. Ka-12) of the victim was recorded.

4. On the basis of the written report (Ext. Ka-1), First Information Report (Ext. Ka-12) was
registered at Police Station concerned on 21.7.2008 at 3:10 A.M. as Case Crime No.290 of 2008
under Sections 326 IPC read with 34 IPC against the accused persons and the investigation was
handed over to Sub-Inspector Lalit Kumar Tyagi.

5. Vineeta was admitted for treatment in the Emergency Department of S.N. Medical
College, Agra on the date of incident i.e. 20.07.2008 at around 7:45 P.M., where her dying
declaration (Ex.Ka.-17) was recorded by Additional City Magistrate-III, Agra, P.W.9 in presence
of Dr. Brahmdev, P.W.10. at 10:40 P.M. During the course of treatment, the victim died at 6:20
A.M. on 21.7.2008 and in this matter offence of section 304 IPC was added.

6. Sub-Inspector Lalit Kumar Tyagi, P.W.7 started the investigation and during the course
of investigation he prepared inquest report (Ex.Ka.-3) on 21.07.2008 and sent the body of deceased
Vineeta for postmortem examination. Dr. Sunehri Lal, P.W.5 conducted the postmortem of the
deceased and prepared her postmortem report (Ex.Ka.-11). The Investigating Officer inspected the
spot and took possession of the plastic container and half burnt plastic mat and prepared its
recovery memo (Ex.Ka.-15). He also inspected the place of incident on 22.07.2008 and prepared
the site plan (Ex.Ka.-14) on the spot. Thereafter, the investigation was transferred to Sub-Inspector
4 All. Ashiq Vs. State of U.P.
1179
G.C. Seth and was further transferred to Sub-Inspector Dinesh Pal Singh, who after recording the
statement of various witnesses submitted charge-sheet (Ex.Ka.-16) against accused Ashiq, Kishore
and Sethi under Sections 304, 326, 34 IPC and investigation against accused Amit was kept
pending.

7. On 21.07.2008 at 3:15 P.M., the autopsy of the deceased was performed by Dr. Sunehri
Lal, P.W.5 who found following injuries on her person :

 (i) Superficial to deep burn injuries all over the body except skull region. Scalp hairs
singed.

 (ii) Surgical dressing all over the body except head.

 (iii) Cut open mark is seen at right elbow area.

 As per opinion of the Doctor, the cause of death of the deceased was due to shock, as a
result of extensive burn injury. The postmortem report is Ex. Ka.-11.

8. The learned Magistrate took cognizance of the offences on 23.10.2008 and committed
the case to Court of Session, as the charged offences were triable by the Court of Session.

9. After hearing both the parties, charges were framed against accused under Sections
304/34 and 326/34 IPC. However, the accused denied the charges and claimed trial.

10. Trial started and in support of it's case, prosecution

examined as many as nine witnesses, who are as follows:

P.W.1 Pradeep (the informant of the case and father of the deceased), P.W.2 Dabbu (the
uncle of the deceased), P.W.3 Mithilesh (aunt of the deceased and wife of P.W.2), P.W.4 Ashok
Kumar (witness of Inquest), P.W.5 Dr. Suneheri Lal (autopsy surgeon, who conducted the
postmortem of the deceased and prepared the autopsy report), P.W.6 Head Constable Dinesh
Kumar (the scribe of the chik F.I.R.), P.W.7 S.I. Lalit Kumar Tyagi (first Investigating Officer,
who prepared inquest report, site plan and recovery memo), P.W.8 S.I. Ganesh Pal Singh (the
subsequent Investigating Officer, who completed the investigation and submitted the charge-sheet
against accused persons), P.W.9 Garima Yadav, (the then Addl. City Magistrate-III, who recorded
the dying declaration of the deceased) and P.W.10 Dr. Brahmdev (the then Chief Medical Officer,
Emergency, S.N. Medical College, Agra, who gave fitness certificates prior to and after recording
of dying declaration).

11. In support of oral version, following documents were filed and proved on behalf of the
prosecution:

 Written report (Ex.Ka.-1), letter sent to S.S.P. (Ex.Ka.-2), Inquest Report (Ex.Ka.-3),
Copy of G.D. No.15 at 7:15 A.M. dtd. 21.07.2008 (Ex.Ka.-4), Letter sent to C.M.O. (Ex.Ka.-5),
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Paper No.13 (Ex.Ka.-6), Information to police regarding death of the deceased (Ex.Ka.-7),
Copy of G.D. dtd. 21.07.2008 regarding death of victim (Ex.Ka.-8), Letter to C.M.O. by I.O.
(Ex.Ka.-9), Photo Nash (Ex.Ka.-10), Postmortem Report (Ex.Ka.-11), Chik F.I.R. (Ex.Ka.-12),
Copy of Report No.4 at 3:10 A.M. dtd. 21.07.2008 (Ex.Ka.-13), Site Plan (Ex.Ka.-14), Recovery
Memo (Ex.Ka.-15), Charge-sheet (Ex.Ka.-16) and Dying Declaration of the deceased (Ex.Ka.-17).

Plastic bag and partially burnt mat were also produced and proved as Material Ex.-1 and
Material Ex.-2.

12. After conclusion of evidence, statements of accused persons were recorded under
Section 313 Cr.P.C., in which they pleaded that on the basis of misunderstanding, a false incident
has been accepted as true and on that basis a false report has been lodged. They have been falsey
implicated in this case. They further pleaded that charge-sheet has been filed on the basis of flawed
investigation. They further stated that a boy named Ashiq was chasing the deceased and because of
wrong pronunciation of name of said boy the name has been wrongly recorded as Ashish, which
fact is proved by the prosecution evidence available on record. The present appellant has
specifically stated that as his name has been wrongly written in the dying declaration because of
wrong pronunciation, therefore, he has been falsely implicated. The present appellant was
specifically asked in question no.2 and 3 of his additional statement recorded under section 313
Cr.P.C. on 05.02.2013 that he has signed as Ashiq as well as Ashish Kumar on various dates on the
order-sheets and the defence witness D.W.1 in his cross-examination has stated that he is
acquainted with the father of the accused Ashish and after perusing Paper No.37, which was an
affidavit available on record, he (D.W.1) stated that on the aforesaid affidavit photograph of the
father of accused Ashiq alias Ashish namely, Raj Kumar is affixed and executant of affidavit has
further been identified as Raj Kumar by D.W.1. In the said affidavit, in paragraph no.2, it was
specifically written that Ashish and Ashiq are the names of his (executants) son. The appellant in
answer to the aforesaid question no.2 and 3 has stated that he was initially taken into custody with
the name Ashiq, therefore, on the asking of court moharrir, he was signing as Ashiq. As far as the
said affidavit is concerned, he denied having any knowledge of the same, however, he has
submitted that the aforesaid false affidavit was tendered on the asking of police. In support of its
case, defence has examined D.W.1 Sunny and D.W.2 Ramesh Chandra.

13. Trial Court after having heard learned counsel for parties and after going through entire
record, vide impugned judgment and order, convicted and sentenced only the accused-appellant
under Section 304/34 IPC by observing that as per Section 71 of I.P.C. the offence under Section
326 I.P.C. has merged with the offence under Section 304 I.P.C. However, the other accused
persons were acquitted by the trial court. Hence, feeling aggrieved with said judgment and order,
present accused-appellant has filed this appeal. However, no appeal has been reported to be filed
against the acquittal of accused Kishore and Sethi.

14. Heard Sri Abhishek Mayank, learned counsel for the appellant, Sri Nagendra Kumar
Srivastava, learned A.G.A for the State and perused the entire record.

15. Assailing the findings, learned counsel appearing for appellant vehemently argued that
the first information report was actually registered against one muslim boy named Ashiq from
4 All. Ashiq Vs. State of U.P.
1181
Mantola and appellant name is Ashish, who has been falsely implicated in this case because of
wrong mentioning of his name while recording the dying declaration. This fact is duly admitted by
informant Pradeep P.W.1 and informants brother Dabbu P.W.2. It was further argued that the
deceased was not in a fit state to give dying declaration and the dying declaration is also not
recorded in question-answer form. The doctor, who gave fitness certificate, in his crossexamination has clearly stated that because of missing of alphabet, name of Ashiq might have been
recorded as Ashish. It was further submitted that no reliance can be placed on dying declaration of
the deceased. It was Ashiq against whom the present F.I.R. was registered and appellant has been
falsely implicated in this case. The prosecution case is totally baseless and from the evidence
available on record, no case is made out as against the appellant. It was further argued that the
learned trial court has misinterpreted the evidence available on record and has not given any
weightage to the defence evidence which was against the norms of the established legal principles.
No ingredient to bring home the guilt of the accused under section 304/34 IPC was proved by the
prosecution. On the basis of analysis of prosecution evidence, no guilt against the accused appellant
is established and proved. Learned trial court misread the evidence and wrongly convicted and
sentenced the appellant. It was lastly argued that this appeal relates to the year 2013 and the
appellant is in jail for a considerable period of time. The sentence for life imprisonment awarded to
the appellant by the trial court is very harsh and excessive.

16. Learned A.G.A. for the State vehemently opposed the

submissions made on behalf of the appellant and submitted that the present appellant is
known by Ashish as well as Ashiq. There is no dispute regarding the identity of present appellant.
The deceased in her dying declaration has categorically named appellant Ashish with necessary
particulars that Ashish is her neighbour and resides in their street. The present appeal has been filed
with the name of appellant as Ashiq and appellant himself is claiming that he is Ashish not Ashiq.
The dying declaration of the deceased has been duly proved by the prosecution, which is a
trustworthy piece of evidence and it alone is sufficient to convict the appellant. The appellant has
committed a very gruesome act, as a result of which the deceased died on account of ante mortem
burn injuries. Hence, while going through the evidence on record, it cannot be said that the offence
under Section 304/34 IPC is not made out against he appellant. The learned trial court has not
committed any error of law or of fact, in convicting and sentencing the accused-appellant under
Section 304/34 IPC. There is no merit in the appeal and learned A.G.A. thus urged for the dismissal
of appeal.

Oral Evidence on Record.

17. Informant Pradeep is the father of the deceased Vineeta, who has been examined as
P.W.1. Pradeep P.W.1, in his deposition, has stated that his daughter Vineeta was a IXth grade
student. She was taken by her friend Pooja who is sister of Ashiq, to a fair on 14.04.2008, where
Pooja called Ashiq and Amit, and got photographs taken of Vineeta with Amit. Thereafter, Ashiq,
Amit, Kishore and Sethi started blackmailing her. On 20.07.2008 at 7:00 P.M., Amit and Ashiq
came to his roof while Kishore and Sethi were standing on the Ashiqs rooftop. At that time, he
was in his house downstairs and his daughter was on the rooftop. Ashiq and Amit poured kerosene
oil on his daughter and set her on fire causing 90% burns. He thereafter admitted his daughter in the
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
Emergency Ward. He got scribed the written report / Tehrir, which was read over to him and
thereafter he signed the same. This witness proved the written report / Tehrir as Ex.Ka.-1. He
further stated that his daughter in burnt condition told him that Ashiq and Amit have set her on fire.
At the time of incident, his brother Dabbu and Dabbus wife Mithlesh also came on spot. Earlier,
an application regarding blackmailing was given by him to S.S.P., Agra on 03.07.2008, carbon
copy of which bearing signature of this witness has been proved by him as Ex.Ka.-2. He further
confirmed after looking at the photograph available on record that the said photograph was of his
daughter Vineeta and Amit. The accused used to blackmail her on the strength of said photograph.

18. P.W.1 Pradeep was cross-examined and in his cross-examination, which remained
inconclusive on 29.09.2009, this witness has stated that he had not complained regarding Ashiq and
Amit to their fathers regarding blackmailing, because their fathers are influential persons. A perusal
of the cross-examination conducted by defence on 29.09.2009 reveals that no material crossexamination of this witness was done on this date. Remaining cross-examination of this witness
was recorded thereafter on 20.04.2010 i.e. about 6 months after recording of his examination-inchief and cross-examination in part. In the remaining cross-examination conducted on 20.04.2010,
this witness stated that accused, who is present in Court, is not Ashiq. Ashiq was a muslim boy of
Mantola, who used to harass his daughter Vineeta. On the date of incident, he had seen him
alongwith Amit coming out from his house. It was Ashiq of Mantola who had burnt his
daughter. Surprisingly this specific cross-examination was not done on first available
opportunity i.e. 29.09.2009, however, when this witness was further cross-examined after a
delay of about 6 months then this witness stated that a muslim boy named Ashiq was the
real assailant who had burnt his daughter. This witness has also stated that his daughter told him
the name of aforesaid Ashiq not the Ashiq present in the Court. On the request of A.D.G.C, an
opportunity to cross examine this witness was provided to prosecution without declaring this
witness as hostile. In his cross-examination by prosecution, this witness stated that the name of
sister of accused Ashish present in the Court is Pooja. He has not named Ashish in the written
report.

19. Brother of the informant Dabbu P.W.2 in his deposition has stated that he was standing
downstairs at his house, when his wife shouted that Ashiq and Amit had burnt Vineeta. Vineeta
was his niece and she was on the terrace. He went to terrace and saw that Vineeta was lying in a
burned state. This witness is not an eyewitness but arrived immediately on the spot and had seen
Vineeta lying in a burned state. He even tried to extinguish the fire and had taken Vineeta to the
hospital in a burnt condition who died during the course of treatment on 21.07.2008. This witness
was declared hostile on the request of prosecution and was cross-examined. In his crossexamination by the prosecution, this witness stated that he had not seen Ashiq, Kishore and Sethi
running from the spot. However, this witness has stated that Ashiq, Kishore and Sethi, who are
present in the Court, are the residents of his colony / mohalla. This witness was also crossexamined by defence in which he stated that accused Ashiq, who is present in Court, is Ashish
of his colony. Accused Ashiq is a muslim boy of Mantola.

20. Sister-in-law / bhabhi of the informant Mithlesh has been examined as P.W.3, who in
her deposition has stated that on the date, time and place of incident, she heard the shrieks of her
niece Vineeta and on reaching at the spot, she saw Vineeta burning. She had not seen anyone
4 All. Ashiq Vs. State of U.P.
1183
pouring kerosene on Vineeta and setting her on fire. This witness was also declared hostile and was
cross-examined by the prosecution in which she stated that Ashish is her neighbour and she does
not know Ashiq. This witness was not cross-examined by defence.

21. Ashok Kumart P.W.4 is a witness of inquest and has proved the inquest report as
Ex.Ka.-3. This witness has not been cross-examined by the defence.

22. Dr. Sunehri Lal P.W.5 is the autopsy surgeon, who has conducted postmortem
examination of the deceased Vineeta and has proved the same as Ex.Ka.-11 along with 10 police
papers, which have been proved by this witness as Ex.Ka.-3 to Ex.Ka.-10. This autopsy surgeon,
in his deposition has stated that he found superficial to deep burn marks all over the body of
deceased except her face as ante-mortem injuries. The hair on the head was singed. There was
a cut mark on the right forearm. No abnormality was found in the head and neck. In the opinion
of this doctor, shock as a result of ante-mortem burn injuries, was the cause of the death of the
deceased. In his cross-examination, this witness has stated that burn injuries sustained by the
deceased could have been caused in an effort to commit suicide by burning.

23. Head Constable Dinesh Kumar P.W.6, who was the scribe of the first information
report, is a formal witness who has proved the first information report as Ex.Ka.-12 and G.D.
Report No.4 dated 21.07.2010 as Ex.Ka.-13.

24. Sub Inspector Lalit Kumar Tyagi P.W.7 was the first Investigating Officer of this case
who conducted the inquest proceedings and has prepared the inquest report Ex.Ka.-3. On
22.07.2008, he also recorded the statement of the informant, inspected the place of incident and
prepared the site plan, which has been proved by him as Ex.Ka.-14. He also took into possession a
plastic container and partial burnt plastic mat from the scene of the crime and prepared recovery
memo, which has been proved by this witness as Ex.Ka.-15. This witness also seized a 5 litre blue
plastic container without lid and a plastic mat which was compressed due to burning, from the
place of incident. This witness has proved the blue plastic container as Material Ex.Ka.1, partially
burnt plastic mat as Material Ex.-2 and bundle of cloth as Material Ex.-3.

25. Sub Inspector Ganesh Pal Singh P.W.8, the subsequent Investigating Officer of the case
recorded further statement of the informant Pradeep and statement of witnesses of inquest and that
of accused Kishore and Sethi and finally submitted the charge-sheet, which has been proved by this
witness as Ex.Ka.-16.

26. Garima Yadav P.W.9 in her deposition has stated that on 20.07.2008, she was posted as
A.C.M.-III and she recorded the dying declaration of the victim Vineeta, who was admitted in the
Emergency Ward of S.N. Medical College, Agra. After issuance of fitness certificate by the doctor,
she started writing the dying declaration of the victim at 10:40 P.M. on that day and in her dying
declaration she (deceased) told her name as Vineeta and has stated that "Ashish had set her on
fire. He is her neighbour and lives in the same lane. He has her photographs. He poured oil on
her and set her ablaze. She did not know the time and there was no one else at the home at that
time". Owing to bandage on the victim's hands, thumb impression of her right leg toe was taken on
the dying declaration and after her statement was completed, the doctor again certified that Vineeta
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
was conscious during her statement. This witness has proved the dying declaration of Vineeta as
Ex.Ka.-17. She was cross-examined by the defence and in her cross-examination she stated that
victim Vineeta, was in general ward, where other patients were present. No one was beside her to
tell. The curtain was drawn, preventing anyone from seeing her. She has specifically denied the
defence suggestion that victim might have told the name of accused Ashiq but she may have
written the same as Ashish.

27. Dr. Brahmdev P.W.10 is the doctor who has certified the fitness of Vineeta both prior
to recording of her dying declaration and after recording of her dying declaration. P.W.10 in his
examination-in-chief has stated that on 20.07.2008, he was posted as Chief Medical Officer
(Emergency) at S.N. Medical College, Agra and on that day at 10:35 P.M. the victim Vineeta was
admitted in Emergency Ward in a burnt condition for treatment. Before recording her dying
declaration by the Magistrate, this witness was asked to provide a written report regarding the
victim, which was given by him as under :

 " The victim Vineeta was fully conscious to give statement and she was having some
difficulty in pronouncing the words.

 After completing the statement of the victim, this witness certified that the victim
remained conscious during her statement and she remained conscious even after her statement."

 He further stated that aforesaid two reports are in his handwriting and signed by him prior
to and after recording of the statement of the victim on Ex.Ka.-17. He also stated that there may be
a difference in the alphabet while being pronounced by victim.

 This witness was cross-examined by the defence and in his cross-examination, he
deposed that because of mistake of alphabet, instead of name of Ashiq it could have been Ashish.
However, there was no cross-examination on the point of fitness of victim of this witness by
defence.

28. The main contention / arguments of the learned counsel for the appellant was that the
first information report was registered against one muslim boy named Ashiq, who was from
Mantola and appellant has been falsely prosecuted and wrongly convicted. The second argument
was that the dying declaration is very brief and it is not recorded in question-answer form and as
the deceased was burnt more than 90%, therefore, in the totality of the circumstances the dying
declaration is not reliable. Last contention was that the sentence awarded to the appellant is
excessive.

Analysis

29. In the light of above arguments, following questions arise for consideration in present
appeal :
4 All. Ashiq Vs. State of U.P.
1185
 (i) Whether Ashiq named in the first information report and Ashish named by the
deceased in her dying declaration is one and the same person or not and whether Ashiq of Mantola
is the real accused not the appellant ?

 (ii) Whether the dying declaration of the deceased is reliable or not ?

 (iii) Whether the prosecution could be said to have proved its case against the appellant
- convict beyond reasonable doubt ?

 (vi) Whether the sentence awarded to the appellant is excessive or not ?

30. The most crucial aspect of the present case is that all prosecution witnesses of facts
have turned as hostile, a fact which has been strongly pressed by the defence in it's favour by
arguing that Ashiq of Mantola was the real accused, not the appellant, which is admitted by father
and uncle of victim in their deposition as P.W.1 and P.W.2.

31. The word 'hostile' or'hostile witness' has not been used in the Evidence Act. The word
'hostile witness' carries a specific significance under the English Law, but the position in India is
different and here it is left to the discretion of the Court to allow a party to cross-examine its own
witness, regardless of a declaration of hostility. Hon'ble Apex Court in K.P. Tamilmaran Vs. The
State Rep. by Deputy Superintendent, 2025 INSC 576 / 2025 SCC OnLine SC 958 in para 31
has observed that :

 "The phrase hostile witness is commonly used in criminal jurisprudence and court
proceedings. We too cannot escape the blame of using the term hostile witness in our judgment.
We do it for pragmatic reasons. Some words like hostile witness in this case are now a part of
our legal vocabulary. There is no point in inventing or substituting new words or phrases, at least
in the present case, and we leave that for the future. But what is necessary, however, is to explain
the meaning of the term as it is now to be understood. The phrase hostile witness has come to
be used for a witness who gives a statement contrary to the story of the side for which he/she is a
witness. All the same, because a witness has supported some, though not all, aspects of a case, it
would not automatically mean that this witness has to be declared hostile. A party can crossexamine its own witness under Section 154 Evidence Act, even without getting a declaration of
hostility. The only restriction to cross- examination under Section 154 Evidence Act is that the
party, who seeks to cross-examine its own witness, must obtain the leave of the Court. Whether
there is a declaration of hostility or not, one thing is clear that evidence of witness, who has
been cross-examined under Section 154 Evidence Act by the party who called such witness, cannot
be washed off entirely and it is for the Court to see what can be retrieved from such evidence."

32. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat 1999
(8) SCC 624, has held that evidence of hostile witness can be relied upon to the extent it supports
the version of prosecution and it is not necessary that it should be relied upon or rejected as a
whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to
which it supports the prosecution version. Evidence of such witness cannot be treated as washed off
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his
testimony, if corroborated by other reliable evidence.

33. In Ramesh Harijan vs. State of U.P. 2012 (5) SCC 777, the Hon'ble Apex Court has
also held that it is settled legal position that the evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.

34. In State of U.P. vs. Ramesh Prasad Misra and another 1996 AIR (Supreme Court)
2766, the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally
rejected if spoken in favour of the prosecution or the accused but required to be subjected to close
scrutiny and that portion of the evidence which is consistent with the case of the prosecution or
defence can be relied upon.

35. Hon'ble Apex Court in Sat Paul V. Delhi Administration (1976) 1 SCC 727 in para
52 has observed that :

 "52. From the above conspectus, it emerges clear that even in a criminal prosecution
when a witness is cross-examined and contradicted with the leave of the court, by the party calling
him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is
for the Judge of fact to consider in each case whether as a result of such cross-examination and
contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part
of his testimony. If the Judge finds that in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering the evidence of the witness, as a whole,
with due caution and care, accept, in the light of the other evidence on the record, that part of his
testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the
testimony of the witness is impugned, and in the process, the witness stands squarely and totally
discredited, the Judge should, as matter of prudence, discard his evidence in toto."

36. A 3-Judge Bench of Apex Court in the case of Khujji @ Surendra Tiwari v. State of
Madhya Pradesh (1991) 3 SCC 627, relying on it's previous cases of Bhagwan Singh v. State of
Haryana (1976) 1 SCC 389, Sri Rabindra Kuamr Dey v. State of Orissa (1976) 4 SCC 233,
Syad Akbar v. State of Karnataka (1980) 1 SCC 30, has held that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and
cross-examined him. It was further held that the evidence of such witnesses cannot be treated as
effaced or washed off the record altogether but the same can be accepted to the extent their version
is found to be dependable on a careful scrutiny thereof. Relying on the aforesaid judgments, Apex
Court has taken a similar view in the case of Selvamani v. State Rep. by the Inspector of Police
(2024) 19 SCC 112 and has held that the evidence of a hostile witness cannot be discarded as a
whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the
defence.

37. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot
be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by
prosecution or the defence. The maxim 'falsus in uno, falsus in omnibus' i.e. 'false in one thing,
4 All. Ashiq Vs. State of U.P.
1187
false in everything', is not applicable to our criminal justice system. It is for the Court to
distinguish the wheat from the chaff while dealing with the deposition of a hostile witness. A
witness may be allowed to be cross-examined by the party who calls him under Section 154 (1) of
the Evidence Act and sub-section 2 of this section makes it clear that nothing in this section shall
disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such
witness. Law is well settled that the evidence of a witness, who has been cross-examined by the
side which produced him, cannot be totally discarded. It is also settled law that the evidence of
hostile witness can also be relied upon by the prosecution to the extent to which it supports the
prosecution version of the incident. The evidence of such witness cannot be treated as washed off
the records; it remains admissible in trial and there is no legal bar to even base the conviction of the
accused upon such testimony, if corroborated with other reliable evidence. There can be several
reasons for a witness to turn hostile and the Court must look into these factors while evaluating the
evidence given by a hostile witness. Therefore, we will be evaluating the depositions of P.W.1,
P.W.2 and P.W.3 in the light of above noted well settled position of law regarding admissibility
and reliability of hostile witnesses.

Question No.1 : Whether Ashiq named in the first information report and Ashish named by
the deceased in her dying declaration is one and the same person or not or whether Ashiq of
Mantola is the real accused not the appellant ?

38. In the present case this is the strongest argument of the defence and, therefore, we have
considered oral and documentary evidence in this regard very minutely and we find that in written
report / Tehrir Ex.Ka.1, Ashiq son of Raj Kumar has been described as brother of Pooja, who is
stated to be the friend of the deceased. The deceased Vineeta in her dying declaration (Ex.Ka.-17)
has described Ashish as the only accused, whom she stated to be her neighbour and resides in her
street. It has also been stated by her that he is having photographs of the deceased.

39. Informant Pradeep P.W.1 in his examination-in-chief has stated that his daughter's
friend Pooja who is also the sister of Ashiq, took his daughter in a fair on 14.04.2008 where Pooja
called Ashiq and Amit and took photographs of deceased with Amit. Thereafter Ashiq, Amit,
Kishore and Sethi were blackmailing his daughter. In his examination-in-chief he has supported the
contents of the written report / Tehrir and has alleged that Amit and Ashiq have burnt his daughter.
He also stated that Amit and Ashiq came on her rooftop and Kishore and Sethi were standing on
the rooftop of Ashiq, which clearly signifies that Ashiq was his neighbour and was having his home
nearby.

40. In the site plan prepared by the Investigating Officer, house of appellant is shown to be
the adjacent one with a gap of mere 2 feet and it is shown that from the rooftop of appellant, he
alongwith other accused came on rooftop of informants house by using stairs. However, in his
cross-examination P.W.1 has specifically stated that father of both Ashiq and Amit are very
influential and, therefore, he had not made complaint against Ashiq and Amit either to their fathers
or to the residents of his colony.

41. P.W.1's cross-examination on 09.07.2009 remained unconcluded and was deferred for
next date.