# Ashraf v. State

- **Citation:** (2025) 4 ILRA 862
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-10
- **Case number:** Criminal Appeal No. 1226 of 1983
- **Bench:** Vivek Kumar Birla, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashraf-v-state-53268
- **Pages:** 13

## Headnote

(A) Criminal Law - Criminal Appeal -
Absconding Accused - Code of Criminal
Procedure, 1973 - Section 302 - Appeal
can be decided on merits where appellant
is absconding and presumed dead, and
record is sufficient - If the case is decided
on merits in the absence of the Appellant,
the higher court can remedy the situation
- Accused cannot claim acquittal on the
ground of faulty investigation done by the
prosecuting agency.(Para - 4,42)
(B) Indian Evidence Act, 1872 - Section 32
- Dying Declaration - Not necessary to be
in Q&A form if certified fit by medical
officer - Statement must be shown to be
voluntary and credible - a truthful and
reliable dying declaration may form the
sole basis of conviction even though it is
not corroborated - Merely because dying
declaration was not in question answer
form, the sanctity attached to a dying
declaration as it comes from the mouth of
a dying person cannot be brushed aside
and its reliability cannot be doubted. (Para
-35,36,37,43)
Appellant Ashraf and co-accused Santosh Kumar
assaulted Nanak Chand - due to prior litigation -
victim gave dying declaration naming assailants
and died - FIR under S. 307 IPC later altered to
S. 302 IPC - eye-witnesses turned hostile - trial
court convicted both under Section 302 IPC -
Santosh died during appeal - Ashraf absconded
since 1990 - appeal heard ex parte with State
counsel. (Para - 8,14 to 23)

HELD:- Conviction under Section 302 IPC
confirmed on basis of reliable dying declaration
and medical/documentary evidence. Hostile
witnesses and defective investigation held
immaterial .Court permitted to decide appeal on
merits in absence of absconding appellant.
(Para - 42,46,47)

Criminal appeal dismissed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,432 of 42,690. This is a partial read: ask again with offset=39432 for what follows._

862 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, they are in jail, hence, no order
is required regarding them.

66. Record of proceedings of the Trial
Court along with a copy of this judgment
be transmitted to the Trial Court within two
weeks.
----------
(2025) 4 ILRA 862
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Criminal Appeal No. 1226 of 1983

Ashraf ... Appellant
Versus
State ...Respondent

Counsel for the Appellants:
Sri Arvind Kumar Srivastava

Counsel for the Respondent:
D.G.A.,

(A) Criminal Law - Criminal Appeal -
Absconding Accused - Code of Criminal
Procedure, 1973 - Section 302 - Appeal
can be decided on merits where appellant
is absconding and presumed dead, and
record is sufficient - If the case is decided
on merits in the absence of the Appellant,
the higher court can remedy the situation
- Accused cannot claim acquittal on the
ground of faulty investigation done by the
prosecuting agency.(Para - 4,42)
(B) Indian Evidence Act, 1872 - Section 32
- Dying Declaration - Not necessary to be
in Q&A form if certified fit by medical
officer - Statement must be shown to be
voluntary and credible - a truthful and
reliable dying declaration may form the
sole basis of conviction even though it is
not corroborated - Merely because dying
declaration was not in question answer
form, the sanctity attached to a dying
declaration as it comes from the mouth of
a dying person cannot be brushed aside
and its reliability cannot be doubted. (Para
-35,36,37,43)
Appellant Ashraf and co-accused Santosh Kumar
assaulted Nanak Chand - due to prior litigation -
victim gave dying declaration naming assailants
and died - FIR under S. 307 IPC later altered to
S. 302 IPC - eye-witnesses turned hostile - trial
court convicted both under Section 302 IPC -
Santosh died during appeal - Ashraf absconded
since 1990 - appeal heard ex parte with State
counsel. (Para - 8,14 to 23)

HELD:- Conviction under Section 302 IPC
confirmed on basis of reliable dying declaration
and medical/documentary evidence. Hostile
witnesses and defective investigation held
immaterial .Court permitted to decide appeal on
merits in absence of absconding appellant.
(Para - 42,46,47)

Criminal appeal dismissed. (E-7)

LIST OF CASES CITED: -
1. Surya Baksh Singh Vs St. of U.P., (2014) 14
SCC 222

2. Prem Kumar Gulati Vs St. of Har., (2014) 14
SCC 646

3. Jose s/o Edassery Thomas Vs St. of Kerala,
(2013) 14 SCC 172

4. Edakkandi Dineshan alias P. Dineshan Vs St.
of Kerala, (2025) 3 SCC 273

(Delivered by Hon'ble Vivek Kumar Birla,
J. & Hon'ble Praveen Kumar Giri, J.)

1. List revised. No one is present to
press the appeal on behalf of the appellant.

2. Sole appellant, Ashraf, son of
Abdul Ghaffar, is being reported to have
died as back as in the year 2018 and
Amicus Curiae was appointed. After
perusal of the entire order-sheet, on
19.3.2025 following order was passed :
4 All. Ashraf Vs. State
863

"1. List revised.

2. No one is present to press this
appeal on behalf of the appellant.

3. After the death of original
counsel appearing for the appellant in the
year 2014 itself notices were issued to the
sole appellant to engage another counsel.

4. As per office report dated
22.05.2024, the sole appellant had shifted
to Delhi and has not returned and
according to the local residence the
appellant (Ashraf) died in Delhi. His
report, however, could not be verified. Vide
order dated 21.02.2018, Sri Arvind Kumar
Srivastava was appointed Amicus Curiae
but he is not present.

5. On 24.10.2018, the following
order was passed:

"Learned A.G.A. has filed an
affidavit of compliance pursuant to the
order dated 13.9.2018, the same is taken on
record.

The report of the Chief Judicial
Magistrate, Budaun dated 11.10.2018 is on
record
indicating
the
fact
that
the
appellant's whereabouts could not be
known who had left for New Delhi twenty
years ago. The enquiry was conducted by
recording the statements of the family
members of the appellant Ashraf and all
have consistently stated about that they
cannot say about as to whether he is dead
or alive. In this view of the matter we
proceed to hear the Amicus Curiae who is
representing the appellant Ashraf.

However, at the request of the
learned counsel who is appearing in
connected Criminal Appeal No. 1238 of
1983 the case is adjourned.

Let the case be listed on 14th
November, 2018 for hearing before the
appropriate Bench."

6. The above quoted order
clearly reflects that the family members are
not aware of his whereabouts and they
could not verify as to whether he is dead or
alive. The only statement of family
members on record is to the effect that the
appellant was of criminal nature and had
gone to Tis Hazari Court to attend
proceedings on 17.09.1990, however, did
not return thereafter from the Tis Hazari
Court and they have never seen him
thereafter. He had also not come to attend
the death ceremony of his close relative as
well. The informant has also died as per
report submitted by Ashok Kumar, Sub
Inspector, Police Station Kotwali, District
Budaun
before
the
Chief
judicial
Magistrate, Budaun. It is also on record
that Ashraf was facing criminal cases in
Delhi as well.

7. On perusal of the report dated
20.02.2024 written by Chief judicial
Magistrate to Senior Superintendent of
Police
reflects
that
the
information
regarding sureties was demanded, however,
the report is not available on record.

8. Office is directed to send the
details of sureties.

9. We have also perused the
report dated 29.03.2024. According to
which the bail bonds of sureties are not
available in the lower court record. The
Letter numbers 6499 and 14698A have
been sent to Chief Judicial Magistrate,
Budaun, to find out the said bail bonds. No
further report is on record.

10. Office is directed to send a
reminder to the letter number 6499 and
14698 to Chief Judicial Magistrate to trace
out the bail bonds and proceed accordingly.

11. List this case on 10.04.2025."

3. Pursuant to the aforesaid order, the
office has submitted a report dated 9.4.2025
based on the report of the Chief Judicial
Magistrate,
Budaun,
dated
3.4.2025
according to which, in spite of the best
effort, the bail bond could not be traced out.
864 INDIAN LAW REPORTS ALLAHABAD SERIES
As such, it is clear that either the accused is
absconding or must have died as is being
reported since 2015 itself that he had gone
to attend court proceeding on 17.9.1990 in
Tis Hazari Court, however, thereafter, he
was never seen. He was having criminal
history and it was reported by his relatives
that he had died. By now, the appellant
must have aged about 66 to 67 years of age
and there was no evidence on record in
respect of his death as per the circular
issued by this Court.

4. In Surya Baksh Singh vs. State of
Uttar Pradesh, (2014) 14 SCC 222, the
Hon'ble Apex Court has held that it is
always not necessary to adjourn the matter
in
case
both
appellants
or
his
counsels/lawyers are absent and the Court
can decide the appeal on merits after
perusal of the record and the judgement of
the trial Court. It has further been observed
that if the case is decided on merits in the
absence of the appellant, the higher court
can remedy the situation. It has also been
observed that appointment of Amicus
Curiae is also on the discretion of the court.
In paragraph 26 of the said judgement, it
was held that it is always not essential for
the High Court to an appoint Amicus
Curiae, paragraphs 24 and 26 of the said
judgement whereof are quoted as under:

"24. It seems to us that it is
necessary for the Appellate Court which is
confronted with the absence of the convict
as well as his Counsel, to immediately
proceed against the persons who stood
surety at the time when the convict was
granted bail, as this may lead to his
discovery and production in Court. If even
this exercise fails to locate and bring forth
the convict, the Appellate Court is
empowered to dismiss the appeal. We fully
and respectfully concur with the recent
elucidation of the law, profound yet
perspicuous, in K.S. Panduranga v. State of
Karnataka, (2013) 3 SCC 721. After a
comprehensive
analysis
of
previous
decisions our learned Brother had distilled
the legal position into six propositions:

"19.1. that the High Court cannot
dismiss an appeal for non-prosecution
simpliciter without examining the merits;

19.2. that the Court is not bound
to adjourn the matter if both the Appellant
or his Counsel/lawyer are absent;

19.3. that the court may, as a
matter of prudence or indulgence, adjourn
the matter but it is not bound to do so;

19.4. that it can dispose of the
appeal after perusing the record and
judgment of the trial court.

19.5. that if the accused is in jail
and cannot, on his own, come to court, it
would be advisable to adjourn the case and
fix
another
date
to
facilitate
the
appearance of the Appellant-accused if his
lawyer is not present, and if the lawyer is
absent and the court deems it appropriate
to appoint a lawyer at the State expense to
assist it, nothing in law would preclude the
court from doing so; and

19.6. that if the case is decided on
merits in the absence of the Appellant, the
higher court can remedy the situation.

25.....

26. Reverting back to the facts of
the present case a perusal of the impugned
order makes it abundantly evident that the
High Court has considered the case in all
its complexities. The argument that the
High Court was duty-bound to appoint an
amicus curiae is not legally sound.
Panduranga correctly considers Mohd.
Sukur Ali v. State of Assam (1996) 4 SCC
729 as per incuriam, inasmuch as the latter
mandates the appointment of an amicus
curiae and is thus irreconcilable with Bani
Singh vs. State of U.P. (1996) 4 SCC 720.
4 All. Ashraf Vs. State
865
In the case in hand the High Court has
manifestly discussed the evidence that have
been led, and finding it of probative value,
has come to the conclusion that the
conviction is above Appellate reproach
correction and interference. In view of the
analysis of the law the contention raised
before us that it was essential for the High
Court to have appointed an amicus curiae
is wholly untenable. The High Court has
duly undertaken the curial responsibility
that fastens upon the Appellate Court, and
cannot be faulted on the approach adopted
by it. In this respect, we find no error."

(Emphasis supplied)

5. The aforesaid view has been
followed by the Hon'ble Full Bench in
Criminal Reference No.1 of 2024, In Re-
Procedure To Be Followed In Hearing Of
Criminal Appeals vs. State of U.P.,
decided on 22.01.2025, paragraph Nos. 151
and 152 whereof are quoted as under:

"151.
The
crux
of
the
aforesaid observations of the three
celebrated judgments rendered by the
Hon'ble Supreme Court in Bani Singh
and others Vs. State of U.P. 11, Surya
Baksh Singh Vs. State of Uttar Pradesh
12 and K.S. Panduranga Vs. State of
Karnataka 13, thus, covers the entire
length and breadth of Question No. 5
formulated by the Division Bench at
Lucknow for consideration by this
Bench and no fresh exercise, in our
considered opinion, is required to be
undertaken by this Bench, including on
one point which has been highlighted by
the Division Bench at Lucknow i.e.
whether the amicus curiae may be
appointed even when the presence of the
convict,
appellant
or
accusedrespondent may be secured and without
his consent.

152.
The
aforesaid
legal
precedents would evidently canvass that
the emphasis of the Apex Court has
been on providing opportunity of being
heard to the appellant who is willing to
cooperate with the appellate court or
his counsel and in this regard a process
to cause his presence for the purpose of
giving opportunity of being heard is
required to be issued to him and when
the court is satisfied that such appellant
is deliberately avoiding his presence
before the court, in such a situation, the
court may dispose of the appeal in the
manner
approved
by
the
Hon'ble
Supreme Court in Bani Singh and
others Vs. State of U.P. 11, Surya Baksh
Singh Vs. State of Uttar Pradesh 12 and
K.S.
Panduranga
Vs.
State
of
Karnataka 13 (i.e. after perusing the
record/evidence vis-a-vis judgment of
the trial court with the assistance of
prosecutor and Amicus, if appointed)
and we do not have any reason to
deviate from the settled proposition laid
down by the Apex Court in the above
mentioned
cases,
moreover,
the
appointment of amicus is only for the
purpose to provide fair trail to the
appellant and also for rendering the
assistance to the Court."

6. Under such circumstances, we
proceed to consider the present appeal
on merits with the help of Sri Anuj
Kumar Mishra, learned A.G.A. for the
State.

7. The above noted appeal has
been filed against the judgment of
conviction and order of sentence dated
19.5.1983 passed by IInd Additional
Sessions Judge, Budaun, in Sessions Trial
No.71 of 1980 (State vs. Santosh Kumar
and another) wherein the Trial Court has
866 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted the accused-appellant under
Section 302 and sentenced him to life
imprisonment.

8. Prosecution story, in brief, is that
prior to the incident, one F.I.R. was lodged
by the wife of Chandra Bhan (P.W.1)
against the accused-Santosh Kumar and
others for assaulting the said lady and a
criminal complaint had also been filed
against the accused persons, Santosh and
others and the case of this criminal
complaint was going on in the court of Sri
Ram
Gopal
Vaish,
Special
Judicial
Magistrate, Budaun against Santosh Kumar
and others prior to this incident of murder.
Prosecution claims that on account of this
litigation Santosh Kumar had enmity with
Chandrabhan and his son deceased-Nanak
Chand, who was also doing pairavi in the
said criminal case pending in the court of
Special Magistrate. On 16.10.1979 at about
10.00 PM deceased-Nanak Chand alias
Sudeshpal was present at the Chha Sarka
(6-Road Crossing) in the city of Budaun in
the company of Mistri Aftab (PW-2), Rais
Mia (PW-3) and Auis (PW-4). Accused
Santosh Kumar, Asharaf and two others
reached there and took away Nanak Chand
towards Prakash Talkies under the pretext
that they wanted to have talk with him in
seclusion. The said three persons also
followed them and when Nanak and the
accused persons reached on the road near
the Prakash Talkies very close to the shop
of Qadir, Santosh Kumar exhorted his
companion Asharaf to kill Nanak Chand
having stated that he was posing to be a
great litigant. The accused Asharaf started
giving blows to Nank Chand with his knife,
and Santosh Kumar and his two other
companions were still standing there
surrounding the deceased-Nanak Chand.
The said three persons Aftab, Rais Mia and
Anis also saw the occurrence. The accused
persons having stabbed fatally the deceased
Nanak Chand, ran away. This incident was
also seen by Smt. Ram Shree lying on a cot
in her house in the vicinity.

9. Two persons, Indal (PW-6) and
Bhupal, took the injured-Nanak Chand in a
rickshaw to the District Hospital, Budaun
where he was medically examined by Dr.
K. R. Khan (PW-5) on 16.10.1979 at 10.30
PM and he found following injuries on
person of Nanak Chand :

"(1) Stab wound 2 Cm. X 1.5
Cm., 10 Cm. above left out supper iliac
spine (depth not noted).

(2) Incised wound 2 Cm. X .75
Cm, 5 Cm. above injury no. 1.

(3) Incised wound 2 Cm. X. 1 Cm.
over left iliac crest, 9 Cm from middle off
back (depth not noted).

(4) Incised wound 2 Cm. X 6 Cm.,
11 Cm. from left out supper iliac spine at 4
0' Clok position (depth not noted). Directed
down wards.

(5) Incised wound 1.5 Cm X .5
Cm on outer side of left thigh, 11 Cm.,
below out supper iliac spine, depth 4 Cm.
directed down and forward."

10. Dr. K.R. Khan (PW-5) has also
recorded the dying declaration of Nanank
Chand at 12.50 AM, in the night of
16/17.10.1979. The Dying Declaration was
written by him in his own handwriting and
he had also given a certificate to the effect
that the deceased was in a fit condition to
make statement and he had replied to his
questions. The Dying Declaration of Nanak
Chand read as under :

"डी०डी० आफ नानक चन्द

मेिा नाम नानक चन्द उफट स देश पाल प त्र चन्रर्ान
धनवासी म ० पनवाडी िदायूाँ का िहने वाला ह ाँ। म झे अशिफ औि
उसके साथी सांतोष तथा दो औि आदमी धजनके मै नाम नहीं जानता
4 All. Ashraf Vs. State
867
ह ाँ। अशिफ जोगीप िा वाले ने जो हाजी सखावत के मकान के पीछे
सिदाि मििी वाले के ििािि गली में िहता है इसने चाकू मािा था
औि सांतोष कायस्थ प त्र िामचन्र म ० पनवाडी वाले ने म झे पकड़ा
औि कहा धक इसे जाने से माि दो म झे किीि 10 िजे िाधत्र को
कदीि अन्नन वाले धमस्त्री की द कान के सामने मािा गया म झे छः
सड़क से िात किने के धलये ि लाकि ले गये थे। सांतोष से मािपीर्
की म कदमें िाजी चल िही है। यह घर्ना शान्ती जो र्गत के
होर्ल पि िहता है की मााँ ने औि कदीि की दूकान के िाहि
चािपाई पि कई आदमी िैिे थे तथा औि आने जाने वाले लोगों ने
यह घर्ना देखी।
16.10.79
ह० नानक उफट स देश पाल
17.10.79
Certified that the above statement was
written by me as told by the injured in
reply to my question.
It is also certified that Sri Nanak Chand
was is sound state of mind and fully
conscious
at
the
time
of
above
declaration.
Sd. illegible
Sd. illegible
(Dr.
K.R.Khan)
17/10/79
17.10.79
12.50 A.M."

11. It is not in dispute that this
statement was recorded at 12.50 AM in
the night of 16/17.10.1979. Looking to
the serious condition, Nanak Chand was
sent to District Hospital, Bareily where
he
succumbed
to
the
injuries
on
19.10.1979 at about 11.00 AM.

12. An information was sent to the
Police Station -Kotwali on the same day
i.e. 19.10.1979 which was entered in the
G.D and S.I. Hari Shanker prepared the
Inquest Report/Panchayatnama of the
dead body in presence of witnesses. He
also prepared the naksha nazri (Ex.Ka.
16) and sealed the dead body in a piece
of cloth and the same was sent for postmortem.

13. Dr. Mahesh Chandra Sharma
(PW-10) conducted the postmortem of
the dead body at 11.15 AM on the same
day and reported following ante mortem
injuries :

(1) Incised left paramedian
wound (stitched operated) - 21 Cm long
with stitches well in position.

(2) Stitched wound 21⁄2 Cm.
long with two stitches on left side of
chest, 5 Cm. below injury no.2.

(3) Stitched wound 2 Cm. long
with two stitches on left side of chest 10
Cm. below left nipple at 5 O'clock
position.

(4) Stitched wound 2 Cm. long
with corrugated drain 5 Cm. below
injury no.3 on left side of abdomen.

(5) Stitched wound 2 Cm. on
outer side of upper of left thigh.

(6) Stitched wound 2 Cm. on
upper part of left buttock.

(7) Incised wound 2 Cm. X 1⁄2
Cm. on back of left side, 2 Cm. about
iliac crest X muscle deep.

(8) Incised wound 1⁄2 Cm. X 1⁄2
Cm. skin deep, 7 Cm. below injury no 2.

( 9) Stitched wound on inner
side of right leg 1 Cm. X 1⁄4 Cm.

14. The incident took place on
16.10.1979 at about 10.00 PM. Initially,
the
First
Information
Report
was
registered under Section 307 of IPC on
the basis of the complaint made by the
father
of
the
deceased
(PW-1).
Thereafter,
when
the
deceased
succumbed to the injuries, the Hospital
authority sent information to the police,
the offence was converted into Section
302 of IPC.

15. The Investigating Officer after
investigation submitted separate charge-
868 INDIAN LAW REPORTS ALLAHABAD SERIES
sheets against accused, Santosh Kumar and
Asharaf under Section 302 of IPC on
5.11.1979 and 8.1.1980 respectively.

16. Thereafter, the learned Judicial
Magistrate took cognizance on the chargesheets and committed the case to the Court
of Sessions after compliance of Section 207
Cr.P.C. and the case was numbered as S.T.
No. 71 of 1980 (State vs. Santosh Kumar
and another) under Sections 302 read with
34 of IPC.

17. Learned Sessions Judge framed
charges against the accused persons and
the same were read over to them.

18. The accused persons had not
pleaded guilty and claimed trial.

19. The prosecution, in order to prove
its case, had examined as many as 10
witnesses namely, Chandra Bhan (PW1/Complainant), Aftab (PW-2), Rais Mian
(PW-3), Anis (PW-4), Dr. K.R. Khan (PW5), Indal (PW-6), Ram Shri (PW-7),
Vishwanath (PW-8), M.P. Bhatnagar (PW9) & Dr. Mahesh Chandra Sharma (PW10).

20. In addition to the aforesaid, the
prosecution
had
produced
certain
documents, namely, (i) First Information
Report as Ext. Ka.5 (ii) Recovery memo of
blood stained 'Parchajat as Ext. Ka.12 (iii)
Injury Report of Nanak Chand as Ext. Ka.1
(iv) Postmortem Report as Ext. Ka.13 (v)
Charge-sheet as Ext. Ka.7 & 8 and (vi) Site
Plan with Index as Ext. Ka.6 and the Dying
Declaration of the deceased.

21. Thereafter, the statements of the
accused under Section 313 Cr.P.C. were
recorded, in which all the incriminating
evidence was put to them. They denied all
the allegations and stated that they were
falsely implicated in the present case.

22. The Trial Court vide impugned
judgement convicted the accused and
sentenced them to life imprisonment as
mentioned
above.
Accused-appellant,
Santosh, has died and his appeal has
already stood abated. The present appeal
has been filed on behalf of accusedappellant, Ashraf.

23. On perusal of the record, we find
that PW-1, father of the deceased and
informant, admittedly is not an eye-witness.
PW-2, PW-3, PW-4 and PW-8 who were
stated to be the eye-witness, turned hostile
and denied that they have seen the incident.

24. The question of proving the guilt
of the accused-appellant, lies on the
prosecution to prove the Dying Declaration
made before Dr. K.R. Khan (PW-5). The
Dying Declaration of Nanak Chand was
assailed on the ground that the same was
not in the form of question and answer and
was given to the doctor and, therefore, no
reliance could have been placed thereon.

25. It was further pleaded that the
father of the deceased, Chandra Bhan (PW1), reached the hospital when deceasedNanak
Chand
was
being
medically
examined by Dr. K.R. Khan (PW-5) and
also had some talk with his son, Nanak
Chand,
who
subsequently
died
and,
therefore, there was every possibility that
the words were put in the mouth of the
deceased to level allegation against the
accused-appellant.

26. It was also pleaded that PW-5, the
Doctor, himself had stated that pethidine
injection was given to the deceased and the
plea
taken
was
that
under
such
4 All. Ashraf Vs. State
869
circumstances, the injured must have fallen
asleep and was not in a position to make
statement and no reliance can be placed on
the Dying Declaration.

27. In respect of source of light, it was
also pleaded that no source of light on the
spot was disclosed whereas the incident
had taken place in the night. This was also
one of the ground of defence that no blood
was shown to have been found on the place
of occurrence by the Investigating Officer.

28. On these grounds, the defence has
taken a plea that the appellant could not
have been convicted and on the same
ground as apart from the grounds as taken
in the appeal that the conviction of the
appellant is against the weight and
evidence on record and is against the law
and that the sentence is too severe which
may be taken into consideration by this
Court.

29. Learned A.G.A., by drawing
attention to various statements of the
witnesses, submits that merely because the
eye-witnesses
have
turned
hostile
subsequently, it cannot be said that this by
itself is sufficient to reverse the judgement
of conviction. Attention was also drawn to
the statements of Dr. K.R. Khan (PW-5)
who had recorded the statement of Nanak
Chand (deceased) and the nature of injury
as well as it was also submitted that the site
plan indicates the source of light and
merely because the blood was not found by
itself is not sufficient to dislodge the
conviction of the appellant as the incident
had taken place on a busy road and even if
there was a defective investigation that no
serious effort was made to collect the blood
from the place of incident, this by itself
would
not
affect
the
judgment
of
conviction.

30. We have considered the averment
on record. On perusal of the record, we find
that the first informant (PW-1) who is the
father of the deceased had fairly stated that
he had not seen the incident and he was
informed by Aftab (PW-2) who had
accompanied him to the hospital as well.
His son was taken to the hospital in a
rickshaw and considering the seriousness of
his injuries, deceased-Nanak Chand was
referred to Bareilly Hospital in the same
night where he died on the third day. PW1 had verified the signatures of his son on
his Dying Declaration.

31. We find that he had made
statement in most natural way and had
fairly admitted that when he reached the
hospital with Aftab (PW-2), the Doctor,
PW-5, was inspecting his son and, after
asking him, he was writing down
something. He also stated that though he
reached there yet he was asked to go out.
He made categorical statement that the
injured was taken to the hospital in a
rickshaw. We find that the rickshaw
puller, Indal, was also produced as PW-6
in
the
present
case
and
he
had
categorically stated that he had taken the
injured to the hospital and a little blood
came
out
which
he
wiped
off
subsequently.

32. In so far as the grounds that are
taken in the appeal are concerned, it is
very relevant to look into the Dying
Declaration. It is not in dispute that the
incident had taken place at about 10.00
PM on 16.10.1979 and immediately about
1 hour and 20 minutes, the incident was
reported and the distance of police station
is four furlong. The First Information
Report was registered under Section 307 of
IPC.
Thus,
a
prompt
F.I.R.
was
registered.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

33. PW-1 had clearly stated that he
was informed about the incident by Aftab
(PW-2) and after taking his injured son to
the Hospital, he had come to report the
incident. We find that in the Dying
Declaration, two dates have been written,
one is 16.10.1979 just above the signature
of the injured,
Nanak
Chand,
who
subsequently died and just below his
signature the second date i.e. 17.10.1979 is
given. Dr. K. R. Khan (PW-5) has given
certificate to the effect that the statement
was written by him as told by injuredNanak Chand in reply to his questions and
has also certified that injured-Nanak Chand
was in sound state of mind and was fully
conscious at the time of making of the
above declaration.

34. After signatures, the date
17.10.1979 and time 12.50 AM were given.
This timing and difference in dates have
been clearly explained by Dr. K.R. Khan
(PW-5) in his statement that as he has
started writing the statement in the night of
16.10.1979, therefore, both the dates were
written and while certifying the Dying
Declaration he had put the date and time as
after twenty four hours the date had
changed.

35. He also stated that he had made
endorsement in the bedhead ticket that the
police be informed. In so far as the grounds
for challenging the correctness of the
Dying Declaration that the same was not
written in the form of question and answer
is concerned, the law is clear that there is
no specific proforma for recording such
statement in a particular manner or form.
Although, in case, it is in the question and
answer form, weightage is given to the
same. However, the Doctor in the present
case, PW-5, has certificated that he had
asked questions to the deceased and his
answers were recorded in the form of his
statement and, as per law, it cannot be said
that Dying Declaration is not worth
believing.

36. So far as the proforma of
recording the dying declaration and its
reliability when it is made to a doctor is
concerned, we are supported in our view by
the following decisions.

37. In Prem Kumar Gulati vs. State
of Haryana, (2014) 14 SCC 646, the Apex
Court has held as under :

"13. It is well settled that a
truthful and reliable dying declaration
may form the sole basis of conviction even
though it is not corroborated. However, the
reliability
of
declaration
should
be
subjected to close scrutiny and the courts
must be satisfied that the declaration is
truthful.

16.
The
submission
of
Ms.
Meenakshi Arora, learned senior counsel
appearing for the appellant that the dying
declaration is untenable being without
mentioning the time when the statement
was recorded as also not in the question
answer form, cannot be sustained. Merely
because dying declaration was not in
question
answer
form,
the
sanctity
attached to a dying declaration as it comes
from the mouth of a dying person cannot
be brushed aside and its reliability cannot
be doubted."
emphasis supplied

38. In Jose s/o Edassery Thomas Vs.
State of Kerala, (2013) 14 SCC 172, the
Apex Court has observed as under :

12. First, we shall consider
whether the dying declaration recorded by
the doctor should be accepted or is it so
4 All. Ashraf Vs. State
871
improbable that it deserves to be thrown
overboard. The dying declaration was
recorded by PW 1 at 8.15 a.m. on 23-122012 when the deceased was in ICU in the
Burns Ward. The doctor, a plastic surgeon,
has signed the dying declaration, Ext. P-3.
In the dying declaration, the deceased had
stated that on the date of the incident, there
was a quarrel between her and her
husband alleging that the deceased was
having illicit relationship with her son-inlaw and he had threatened to kill her. She
had clearly stated that her husband was
running away and it is he who might have
set fire on her. The doctor concerned, in his
cross-examination, has stood embedded in
his stand that the state of mind of the
injured was absolutely clear and she was
speaking fluently. He had denied the
suggestion of the defence that because of
the 92% of the burn injuries, the patient
may not be conscious. It is not disputed that
the doctor had not endorsed about the
condition of the declarant of the dying
declaration.

13. In this context, we may refer
with profit to the decision in Laxman v.
State of Maharashtra [(2002) 6 SCC 710 :
2002 SCC (Cri) 1491] wherein the
Constitution Bench, while dealing with the
concept of dying declaration, the fitness of
mind and the necessity of endorsement by
doctor, has stated thus : (SCC p. 713, para
3)

"3. ... The situation in which a
man is on the deathbed 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 crossexamination are dispensed with. Since the
accused
has
no
power
of
crossexamination, the courts 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 always to 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 looks 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."

14. In Babulal v. State of M.P.
[(2003) 12 SCC 490 : 2005 SCC (Cri) 620
: AIR 2004 SC 846] while dealing with the
value of dying declaration in evidence, this
Court has observed thus : (SCC p. 494,
para 7)

"7. ... A person who is facing
imminent death, with even a shadow of
continuing in this world practically nonexistent, every motive of falsehood is
obliterated. The mind gets altered by most
powerful ethical reasons to speak only the
truth. Great solemnity and sanctity is
attached to the words of a dying person
because a person on the verge of death is
not likely to tell lies or to concoct a case so
as to implicate an innocent person. The
maxim is 'a man will not meet his maker
with a lie in his mouth' (nemo moriturus
praesumitur mentiri). Mathew Arnold said,
'truth sits on the lips of a dying man'. The
general principle on which the species of
evidence is admitted is that they are
declarations made in extremity, when the
party is at the point of death, and when
every hope of this world is gone, when
872 INDIAN LAW REPORTS ALLAHABAD SERIES
every motive to falsehood is silenced and
mind induced by the most powerful
consideration to speak the truth; situation
so solemn that law considers the same as
creating an obligation equal to that which
is imposed by a positive oath administered
in a court of justice."

17. The ample of evidence on
record indicates that the deceased was
conscious and hence, we are inclined to
accept the dying declaration which would
reveal the cruel treatment meted out by the
husband to
the
wife,
the
suspicion
harboured by him and the threats given.
True it is, she had stated that she had
suspected that her husband might have set
her ablaze but to prove the said aspect,
there are numerous circumstances which
the trial Judge as well as the High Court
has
taken
into
consideration.
The
circumstances which lead singularly to the
guilt of the accused are that the accused
was sleeping in the bedroom on the eastern
side of the room where she was sleeping
and it was a small house; that the bedroom
was not having any shutters; that PW 3
woke up on hearing the cries of the
deceased; that the accused had purchased
petrol from the petrol pump belonging to
PW 5 in a bottle; that Ext. P-15, chemical
analysis report, has clearly mentioned that
kerosene was not detected in any of the
material objects sent for chemical analysis;
that the accused was seen running away
from the house by PW 3 and PW 7; that it
has been clearly deposed by PW 3, the
daughter, that the father used to demand
that mother should sleep with him, but she
could not oblige him; and that he had
threatened to kill her. The elder daughter
has deposed that the father was doubting
the husband of PW 3 of having an illicit
relationship with the mother. She had also
deposed that the mother was 52 years of
age and was infirm and not in a position to
cater to the desire of her husband. All these
circumstances appreciated in the context
of the dying declaration clearly establish
the involvement of the accused in causing
burn injuries on the deceased.

39. In so far as the presence of father
of deceased (PW-1) is concerned, it is not
in dispute that the father was present in the
hospital and had seen Dr. K.R. Khan
attending his son, however, he had
categorically stated that he was sent outside
when the statement was being recorded. To
the same effect, the Dr. K.R. Khan stated in
categorical terms and nothing came out in
his cross examination against the same.

40. It is also not in dispute that the
settled law is that it is not necessary that the
Dying Declaration must be recorded by the
Magistrate only. In some of the cases when
the injured/attending person is expecting
immediate death of the injured, the
statement can be recorded and even
statement under Section 161 Cr.P.C. are
may be at times treated as a Dying
Declaration although its trustworthiness has
to be seen on their own facts.

41. It is also not in dispute that the
statement of injured was recorded on the
same night after about two hours of the
incident and was prompt in nature whereas
he died after three days. It is not a case
where the statement was subsequently
recorded which could have been an after
thought.

42. In so far as the argument that the
blood was not found at the place of
occurrence, it has come on record that it
was a busy road in the heart of the city and
the incident had taken place at about 10.00
PM and the Investigating Officer visited the
place of occurrence in the morning and did
4 All. Ashraf Vs. State
873
not find any blood there. As the blood was
not shown in the site plan, therefore, this
could have been a reason for the
Investigating Officer to make statement
that he did not find the blood on the spot
just to save himself from the allegation of
conducting a defective investigation and
statement of the IO to that effect does not
go to the root of the case to demolish the
conviction of the appellant herein. We are
supported in our view by the decision in
Edakkandi Dineshan alias P. Dineshan
vs. State of Kerala, (2025) 3 SCC 273
wherein the Apex Court has held as under :

"26. A cumulative reading of the
entire evidence on record suggests that the
investigation has not taken place in a
proper and disciplined manner. There are
various
areas
where
a
properly
investigation could have strengthened its
case. In the case of Paras Yadav & ors. vs.
State of Bihar, the Apex Court observed as
under:(SCC P.130, Para 8)

"Para 8 - ..the lapse on the part
of the Investigating Officer should not be
taken in favour of the accused, may be that
such lapse is committed designedly or
because
of
negligence.
Hence,
the
prosecution evidence is required to be
examined dehors such omissions to find out
whether the said evidence is reliable or not.
For this purpose, it would be worthwhile to
quote the following observations of this
Court from the case of Ram Bihari Yadav v.
State of Bihar and others: (SCC pp. 52324, para 13).

"In such cases, the story of the
prosecution will have to be examined
dehors such omissions and contaminated
conduct of the officials otherwise the
mischief which was deliberately done
would be perpetuated and justice would be
denied to the complainant party and this
would obviously shake the confidence of
the people not merely in the law enforcing
agency but also in the administration of
justice."

27. Hence, the principle of law
is crystal clear that on the account of
defective investigation the benefit will not
inure to the accused persons on that
ground alone. It is well within the domain
of the courts to consider the rest of the
evidence
which
the
prosecution
has
gathered
such
as
statement
of
the
eyewitnesses, medical report etc. It has
been a consistent stand of this court that
the accused cannot claim acquittal on the
ground of faulty investigation done by the
prosecuting agency."
(emphasis supplied)

43. One of the grounds taken is that
the doctor had administered pethidine
injection to the injured, therefore, he was
not in a state of making any statement and,
hence, the Dying Declaration is not worth
believing, is concerned, suffice to note that
no question was put to the doctor that at
what stage pethidine injection was given
and, therefore, it cannot be said that
pethidine injection was given before he had
made the statement.

44. Even otherwise, in ordinary
circumstances, when the statement is
recorded,
no
prudent
doctor
would
administer sedative injection to the injured
before recording the statement.

45.