# Bali Singh v. State of U.P

- **Citation:** (2022) 8 ILRA 729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-05
- **Case number:** Criminal Appeal No. 1833 of 2008
- **Bench:** Manoj Misra, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bali-singh-v-state-of-u-p-48937
- **Pages:** 11

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 304 - The Code of Criminal
Procedure, 1973 -Section 313 - appeal
against conviction - culpable homicide not
amounting to murder - if public witnesses
of fact examined by the prosecution are
declared hostile their testimony does not
get effaced from the record - can be
utilized by the prosecution to the extent it
730 INDIAN LAW REPORTS ALLAHABAD SERIES
corroborates the prosecution case. (Para -
23, )

Deceased and her husband had a fight -
consumption of liquor by her husband - husband
poured kerosene on her and set her ablaze -
incident is of night - fire was doused by
throwing quilt on her - Incident occurred in
house (matrimonial) of appellant - deceased
brought to hospital in a burnt condition - died
due to septicaemia as a result of ante mortem
burn injuries - conviction by trial court - hence
appeal. (Para - 20,27)

(B) Evidence Law - Dying declaration -
court
before
accepting
the
dying
declaration must 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 -
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
-
nonexamination of the doctor does not
render the dying declaration unworthy
of acceptance.(Para -25,26,27)

HELD:-Dying declaration wholly reliable and
truthful and can on its own form the sole basis
of conviction. Order of trial court convicting
appellant upheld. Sentence of imprisonment for
life awarded to appellant by trial court modified
and reduced to period of sentence already
undergone.(Para -27,30 )

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

Laxman Vs St. of Maha., (2002) 6 SCC 710

## Text

8 All. Bali Singh Vs. State of U.P.
729
and another (supra) is also of no help to
respondents as the cited case law relates to
the heavy recovery of 236.62 Kg. of
Narcotic drugs. In that case, the evidence
was there against the accused that accused
remained in a fishing boat for five days and
talked on different channels in Code Words
and showing his involvement with the
miscreants.
Hence,
the
facts
and
circumstances of the case cited is entirely
different from the case in hand.

34. The appeal deserves to be allowed
and is accordingly allowed. The impugned
order dated 30.5.2022 passed by the
Special Judge, NIA/ATS, Lucknow in Bail
Application No.4344/ 2022 arising out of
Case Crime No.0199 /2020, Police Station
Manth, District Mathura is hereby set-aside
and the appellant Alam @ Mohammad
Alam is admitted to regular bail until
conclusion of trial, subject to the following
conditions :

a). The appellant shall furnish a
personal bond in the sum of Rs.50,000/-
(Rs. Fifty Thousands only) with 2 local
sureties of the like amount, to the
satisfaction of the learned trial court ;

b). The appellant shall furnish to
the investigating officer/S.H.O. a cellphone
number on which the appellant may be
contacted at any time and shall ensure that
the number is kept active and switched-on
at all times;

c). The appellant shall ordinarily
reside at his place of residence and shall
inform the investigating officer if he
changes his usual place of residence

d). If the appellant has a passport,
he shall surrender the same to the learned
Trial Court and shall not travel out of the
country without prior permission of the
learned Trial Court;

e).
The
appellant
shall
not
contact, nor visit, nor offer any inducement,
threat or promise to any of the prosecution
witnesses or other persons acquainted with
the facts of the case. The appellant shall not
tamper with evidence nor otherwise indulge
in any act or omission that is unlawful or
that would prejudice the proceedings in the
pending trial.

35. Here, it is made clear that
observations made in this order shall not
affect the trial, in any manner.
----------
(2022) 8 ILRA 729
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Criminal Appeal No. 1833 of 2008

Bali Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.C. Srivastava, Sri Rajesh K. Sharma,
Sri Yogesh Kumar Srivastava

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 304 - The Code of Criminal
Procedure, 1973 -Section 313 - appeal
against conviction - culpable homicide not
amounting to murder - if public witnesses
of fact examined by the prosecution are
declared hostile their testimony does not
get effaced from the record - can be
utilized by the prosecution to the extent it
730 INDIAN LAW REPORTS ALLAHABAD SERIES
corroborates the prosecution case. (Para -
23, )

Deceased and her husband had a fight -
consumption of liquor by her husband - husband
poured kerosene on her and set her ablaze -
incident is of night - fire was doused by
throwing quilt on her - Incident occurred in
house (matrimonial) of appellant - deceased
brought to hospital in a burnt condition - died
due to septicaemia as a result of ante mortem
burn injuries - conviction by trial court - hence
appeal. (Para - 20,27)

(B) Evidence Law - Dying declaration -
court
before
accepting
the
dying
declaration must 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 -
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
-
nonexamination of the doctor does not
render the dying declaration unworthy
of acceptance.(Para -25,26,27)

HELD:-Dying declaration wholly reliable and
truthful and can on its own form the sole basis
of conviction. Order of trial court convicting
appellant upheld. Sentence of imprisonment for
life awarded to appellant by trial court modified
and reduced to period of sentence already
undergone.(Para -27,30 )

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

Laxman Vs St. of Maha., (2002) 6 SCC 710

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Saurabh Srivastava, J. )

1. We have heard Sri Yogesh Kumar
Srivastava for the appellant; Sri J.K.
Upadhyay, learned AGA, for the State; and
have perused the record.

2. This appeal is against the judgment
and order dated 22.02.2008 passed by the
Additional District and Sessions Judge,
Court No.9, Ghaziabad in S.T. No.787 of
1999, arising out of case crime no.52 of
1999, P.S. Muradnagar, district Ghaziabad,
whereby the appellant Bali Singh has been
convicted and sentenced under Section 304
IPC to imprisonment for life and fine of
Rs.3,000/- coupled with a default sentence
of one year.

INTRODUCTORY FACTS

3. A written report (Ex. Ka-3), signed
by brother of the deceased, namely, Sunder
(PW-5), was submitted at P.S. Muradnagar,
district Ghaziabad on 17.02.1999 at 19.30
hrs, giving rise to case crime no. 52 of
1999, under section 308 IPC of which G D
Entry No.42 (Ex. Ka-5) and Chik FIR (Ex.
Ka-4) was prepared by PW-6. In the
written
report
it
was
alleged
that
informant's sister Santosh was married to
the appellant Bali Singh about 12 years
ago; Bali Singh was addicted to liquor as a
result whereof, her sister used to remain
worried and for the last three years was
staying with the informant; that 6-7 months
before the incident, on insistence of
mediators, informant's sister (the deceased)
returned to her matrimonial home; that on
12.02.1999, at about 11.30 pm, the
appellant in an inebriated state poured
kerosene over informant's sister and set her
ablaze; when she raised an alarm, her
Devar Chatar Singh (PW-3) and Devrani
Smt. Rajesh (PW-4) broke open the
window of her room, saved her and got her
8 All. Bali Singh Vs. State of U.P.
731
admitted at M.M.G. Hospital, Ghaziabad,
where she is under treatment.

4. On 17.02.1999, a dying declaration
of Smt. Santosh was recorded by Om Pal
Singh (PW-8), Naib Tehsildar. The dying
declaration (Ex. Ka-5) recites that there
was a fight between her and her husband;
during that fight, her husband poured
kerosene on her and set her ablaze;
whereafter, the fire was doused by putting
quilt over her; later, her Devar, mother-inlaw and father-in-law brought her to the
hospital. She stated that she was married 15
years ago and has two children. The fight
between her and her husband was on
account of consumption of liquor by her
husband.

5. During the course of investigation,
burnt quilt and Dari were lifted from her
matrimonial home of which seizure memo
(Ex. Ka-11) was prepared. The initial
medical examination report of the victim
(Ex. Ka-13), dated 13.02.1999, which was
produced by PW-10 indicates that she was
brought to the hospital by Atar Singh (to be
read as Chatar Singh) son of Ratan at about
1.20 am on 13.02.1999 at M.M.G. Hospital.
The injury report (Ex. Ka-13) recites:
"superficial to deep burn over face, neck
except forehead, and left face and both
eyes. Superficial to deep burn on both
lower extremities, front and back of chest,
and abdomen. Superficial to deep burn on
both lower extremities, pelvic region.
Singeing of hair present. Peeling off skin
present. Blisters present. Smell of kerosene
coming from body. Mental condition
confused and irritable. General condition
low. Blood pressure 90/94. Pulse 100."

6. Santosh died at 10 am on
18.02.1999
in
the
district
hospital,
Ghaziabad of which information was sent
to the police station concerned at 12.35
hrs.. Inquest was conducted at the hospital
on 18.02.1999. It was completed by 15.00
hours and an inquest report (Ex. Ka-1) was
prepared, which was witnessed by PW-1
amongst others. Autopsy was conducted at
5 pm on 18.02.1999. The autopsy report
(Ex. Ka-2) prepared by Dr. Rajendra
Prasad (PW-2) recites ante-mortem injuries
as follows:- "Extensive superficial to deep
burn all over body except scalp and
forehead and lateral aspect of arm and
forearm on both side". Cause of death
mentioned
in
the
autopsy
report
is
septicaemia due to ante mortem burns.
Internal
examination
of
the
cadaver
revealed gravid uterus (male foetus present
18-20 weeks old). Consequent to the death
of Santosh, the case was converted to an
offence punishable under Section 304 IPC.

7. After investigation, charge sheet
dated
09.04.1999
(Ex.
Ka-12)
was
submitted by O.P. Singh Chauhan (PW-9).
After taking cognisance on the charge
sheet, the case was committed to the court
of session. The trial court, on 21.10.1999,
charged
the
appellant
for
offence
punishable under Section 304 IPC. The
appellant pleaded not guilty and claimed
trial.

PROSECUTION EVIDENCE

8. During the course of trial, the
prosecution examined 10 witnesses. Their
testimony, in brief, is as follows:-

9. PW-1- Tara Chand. He is a
witness of the inquest proceeding. He
proved the inquest report by identifying his
signature thereon, which was marked Ex.
Ka-1.

10. PW-2- Dr. Rajendra Prasad-
Autopsy Surgeon. He proved the autopsy
732 INDIAN LAW REPORTS ALLAHABAD SERIES
report and confirmed the injuries recited
therein. On the basis of his statement, the
autopsy report was exhibited.

11. PW-3- Chatar Singh- Devar of
the deceased. He stated that the deceased
was his elder brother Bali Singh's (the
appellant)
wife.
He
denied
having
witnessed the incident. He denied of
making an attempt to douse the fire. He
stated that in the night of the incident he
was at his Sasural and is not aware as to
how his Bhabhi (the deceased) got burnt.
He stated that he is not aware as to who got
her admitted in the hospital.

At this stage, the witness was
declared hostile by the prosecution and
permission to cross examine him was
granted.

During cross examination, PW3 denied that the appellant was addicted to
liquor. He stated that he never saw him
drinking. He stated that he arrived at his
house two days after the incident when he
came to know that Santosh (the deceased)
was admitted in the hospital. He stated that
the investigating officer had not recorded
his statement. When confronted with his
previous statement recorded under Section
161 CrPC, PW-3 stated that he did not give
any such statement. He denied the
suggestion that to save his brother he is
lying.

12. PW-4- Smt. Rajesh - Devrani of
the deceased. She resiled from the
prosecution case and stated that she was at
her Maika (maternal home) with her
husband since two days before the incident
and she returned two days after the
incident. PW-4 too, was declared hostile by
the prosecution and permission to cross
examine her was granted.

During cross examination, she
stated that her Jeth (the appellant) was not
addicted to liquor and that she had never
seen her Jeth having a fight with his wife.
On being confronted with her previous
statement recorded under Section 161
CrPC, she stated that she never gave any
such statement.

13. PW-5- Sunder- brother of the
deceased. He stated that the deceased was
his elder sister and was married 16 years
ago to the accused Bali Singh. Bali Singh
never harassed his sister and never
assaulted her under the influence of liquor.
On 12.02.1999 Bali Singh did not ablaze
her. However, he is not aware as to how
she got burnt. PW-5 denied having dictated
the written report, which was scribed by
Krishna Pal, but admitted his signature on
it. The written report was marked Ex. Ka-3.

At this stage, the prosecution
declared the witness hostile and sought
permission to cross examine him, which
was granted.

During cross examination, the
witness stated that he gave the written report
on the suggestion of the police because he
feared the police and, at that time, was under
stress due to death of his sister. PW-5 stated
that whenever Bali Singh had come to his
house he never took liquor and that he never
reported that Bali Singh was addicted to
liquor. He also stated that his sister never
complained about Bali Singh. On being
confronted with his previous statement
recorded under Section 161 CrPC, the
witness denied having given any such
statement. He denied the suggestion that he
has colluded with the accused.

14. PW-6- Rajveer Singh. He is the
Chik maker of the written report and made
8 All. Bali Singh Vs. State of U.P.
733
its GD entry. He stated that the written
report was submitted by Sunder (PW-5) on
the basis of which, vide GD Entry No.42 at
19.30 hours on 17.02.1999 Case Crime
No.52 of 1999, under Section 308 IPC, was
registered. He proved the Chik FIR and GD
entry
as
Ex.
Ka-4
and
Ex.
Ka-5
respectively.

During cross examination, he
stated that he does not personally know the
informant.

15 . PW-7- Virendra Singh. He is the
constable who accompanied the police to
the hospital on getting information about
her death. He stated that on getting
information about death of the deceased
from ward boy of the hospital, he along
with Constable Om Singh arrived at district
hospital Ghaziabad where they met Daroga
O.P.
Singh
Chauhan
(PW-9).
PW-9
prepared the inquest report and the body
and papers were handed over to him for
autopsy. He did not allow anyone to touch
the body till it was given to the autopsy
surgeon at the Mortuary.

16. PW-8- Ompal Singh, Naib
Tehsildar- Executive Magistrate, who
recorded the dying declaration of the
deceased. PW-8 stated that on 17.02.1999
he was posted as Tehsildar at Tehsil
Ghaziabad. On that day, he recorded the
statement of Smt. Santosh wife of Bali
Singh, aged about 25 years, who was a
resident of village Bhovapur. He stated that
the dying declaration was recorded by him
in his own handwriting and signature. The
dying declaration, which was kept in a
sealed envelop, was opened in court and
shown to him. PW-8 identified the
document
as
the
dying
declaration
recorded, written and signed by him. The
same was marked Ex. Ka-5 and the envelop
containing the dying declaration was
marked material Ex.-1. He stated that the
dying declaration carries thumb impression
of the deceased, which was put by her in
his presence after the dying declaration was
recorded and read over to her. He stated
that the declaration was recorded between
4.10 and 4.15 pm. Before recording the
declaration, he had obtained permission of
the then attending Emergency Medical
Officer posted at M.M.G. District Hospital,
Ghaziabad. He stated that the deceased was
in a fit mental condition and was fully
conscious
when her
declaration
was
recorded. He stated that after her statement
was recorded, the same was sealed and the
sealed envelop was sent to the Chief
Judicial Magistrate, Ghaziabad. He stated
that the envelop in which the dying
declaration was sealed bears seal put by
him. The envelop also bears his signature.
The envelop sealed by him was also
produced and marked material Ex.-2.

During cross examination, PW8 stated that he is not aware of the date
when Smt. Santosh was admitted in the
hospital. When he had noticed her, she
must have been 70% burnt but she was in a
position to speak. Her face was not burnt
though rest of her body was burnt. He
stated that before recording her statement
he had obtained written permission of the
doctor regarding her fitness. The written
permission regarding her fitness was not
obtained on a separate document but was
taken on the document wherein the
statement was recorded. He specifically
stated that fitness certificate/permission
was
obtained
before
recording
the
statement. When permission to record the
statement was endorsed on the paper, the
paper was blank. He stated that this
certificate/permission was endorsed on the
left margin of the paper. On further
734 INDIAN LAW REPORTS ALLAHABAD SERIES
questioning, PW-8 stated that at the time
when he recorded the dying declaration,
except him and the injured, no one else was
present. However, when he had arrived to
record the dying declaration one or two
persons were there, but he does not know
who they were. He stated that he does not
know the deceased personally; that he
himself got her thumb impression on Ex.
Ka-5. He denied the suggestion that fingers
and thumb of the deceased were burnt. He
also denied the suggestion that thumb
impression of the deceased was not
obtained in his presence. He denied the
suggestion that he recorded the declaration
on the basis of information contained in the
first information report and not by
inquiring from the declarant.

17. PW-9- O.P. Singh Chauhan-
Investigating Officer. He stated that on
17.02.1999
he
was
posted
at
P.S.
Muradnagar. The case was registered in his
absence but the investigation was assigned
to him. After obtaining necessary papers,
he recorded the statement of the informant
(Sunder) and of the GD/Chik maker. On
18.02.1999, he came to learn that the
deceased had expired at 10 am. He
proceeded to the spot, appointed panches
and conducted inquest proceeding. He
proved his signatures on the inquest report
(Ex. Ka-1). He proved preparation of
various papers for autopsy which were
marked as Ex. Ka-6 to Ex. Ka-9. He stated
that after the death of Santosh, the case was
converted from Section 308 IPC to Section
304 IPC. On 19.02.1999, he inspected the
spot and at the instructions of the informant
prepared a site plan (Ex. Ka-10). From the
spot, he recovered a quilt and a Dari as also
a printed Dhoti which was sealed and a
seizure memo thereof (Ex. Ka-11) was
prepared. The recovered articles were
produced in court and marked material
Ex.1 and 2. On 20.02.1999, he arrested the
appellant and recorded his statement. On
09.04.1999, he recorded the statement of
Smt. Rajesh and Chatar Singh and also
received copy of the dying declaration.
After completing the investigation, he
submitted charge sheet (Ex. Ka-12).

During cross examination, PW9 stated that the incident was of 12.02.1999
as per the written report lodged on
17.02.1999. On the day when the written
report was lodged, he did not visit the
hospital. He visited the hospital on
18.02.1999. When he visited the hospital,
Santosh was already dead. He arrived at the
hospital between 11 and 12 hours and
thereafter the inquest was conducted. The
deceased was fully burnt. He stated that on
19.02.1999 when he visited the place of
occurrence, the house of the deceased was
found open and no one was present there.
Neighbours were around but they were not
at the spot. Inspection was conducted at the
instance of the informant. A cot was found
in the room but the quilt (Material Ex. 1)
and Dari (Material Ex.2) was lifted from
the floor and not from the cot. He stated
that he did not separately disclose in the
site plan the place from where Dari and the
quilt was lifted. On being questioned,
whether the cot was burnt or not, PW-9
stated that he does not remember whether it
was burnt. However, the cot was not
seized. He stated that in that room the other
household articles were noticed but no
electricity supply was noticed in that room.
PW-9 denied the suggestion that the
material exhibits 1 and 2 were not there
since the date of the incident but were
planted later. PW-9 denied the suggestion
that he had not interrogated persons in the
vicinity. He also denied the suggestion that
without properly and fairly conducting the
investigation he submitted the charge sheet.
8 All. Bali Singh Vs. State of U.P.
735

18. PW-10- Brijesh Kumar. He was
employee of District Hospital Ghaziabad
who produced the original record relating
to medical examination of Smt. Santosh
wife of Bali Singh on 13.2.1999. On
production of the original record by him,
photocopy of the medical examination
report of the deceased dated 13.2.1999 was
taken on record and marked Ex. Ka-13.

During cross examination, by
looking at Ex. Ka-13, PW-10 stated that it
records that the deceased was burnt to the
extent of 90%. He admitted that the
original of the record was not prepared in
his presence.

Statement
of
the
accusedappellant under section 313 CrPC

19. The incriminating circumstances
appearing in the prosecution evidence were
put to the appellant while recording his
statement under Section 313 CrPC. The
appellant though admitted that he was
married to the deceased about 12 years
before
12.2.1999
but
denied
the
incriminating circumstances appearing in
the prosecution evidence against him. He
took no plea that the deceased did not
suffer burn injuries or that she was not
admitted in the Hospital on 13.02.1999 in
connection therewith. He also did not
dispute her death on 18.02.1999. He also
did not take a specific plea that he was not
present in the house when the incident
occurred. Notably, no defence evidence
was led.

Trial Court Findings

20. The trial court found from the
prosecution evidence that it was proved
that the incident had occurred in the house
of the appellant; that the deceased was
brought to the hospital in a burnt condition
on 13.02.1999; and that she was under
treatment at the hospital where she died on
18.02.1999 due to septicaemia as a result of
ante mortem burn injuries. The trial court
found that from the statement of PW-5 it
was proved that the written report was
signed by him; the Chik maker (PW-6)
proved the submission of written report by
PW-5; that the medical record produced by
PW-10 proved that the deceased was
admitted in the hospital on 13.2.1999 with
burn injuries and the dying declaration was
proved by PW-8, which proved that the
appellant had caused those burn injuries.
The trial court therefore held that the
prosecution was successful in proving the
guilt of the appellant beyond reasonable
doubt.
The
trial
court,
accordingly,
convicted the appellant and sentenced him
as above.

Submissions on behalf of the appellant

21. The learned counsel for the
appellant submitted that since all public
witnesses
of
fact
examined
by
the
prosecution were declared hostile as they
have not supported the prosecution story
that the deceased was a liquor addict and
was in a habit of ill-treating/ assaulting his
wife; and, admittedly, the deceased was
married to the appellant more than seven
years before the incident, no presumption
was available to the prosecution, hence, in
absence of any evidence in respect of
motive for the crime it was not appropriate
to record conviction on the sole basis of
dying declaration. It has been urged that the
dying declaration has been recorded after
four days. The deceased was admitted in
the hospital on 13.02.1999 with about 90%
burns. There is no reason available in the
prosecution evidence as to why the dying
declaration was recorded so late. From the
736 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of the recording magistrate, it
appears, one or two persons were present in
the hospital from before, when her dying
declaration
was
recorded.
In
such
circumstances, the possibility of the dying
declaration being tutored and that she was
not in a fit mental condition at the time of
giving her declaration cannot be ruled out
therefore, the dying declaration is not
worthy of acceptance as to form the sole
basis of conviction.

Submissions on behalf of the State

22. Learned AGA has supported the
judgment and order of the trial court and
has submitted that the spot inspection by
the
I.O.,
recovery of
burnt
articles
therefrom and the statement of the I.O. has
proved beyond reasonable doubt that the
place of incident is the house of the
appellant. The appellant in his statement
recorded under Section 313 CrPC has
neither stated that he was present elsewhere
nor claimed that the place of incident was
not his house but some other place. The
deceased was brought to the hospital in a
burnt state by her Devar Chatar Singh (PW3) on 13.02.1999 at 1.20 am, which fact
though not admitted by PW-3 but was
proved from the entry in the original record
of the hospital produced by PW-10 as also
by injury report (Ex. Ka-13). It is also
proved from the recital in the inquest report
(Ex. Ka-1) and the autopsy report (Ex. Ka2) that the deceased died in the hospital on
18.02.1999 at 10 am therefore, from record
it was proved that the deceased remained in
the
hospital
from
13.02.1999
to
18.02.1999. Once the prosecution was
successful in establishing those facts, the
dying declaration (Ex. Ka-5), which was
duly proved, finds support from the
surrounding circumstances. The mental
fitness of the deceased at the time of
making her declaration and of her fitness
during the course of recording her dying
declaration are certified at the margin of
Ex. Ka-5 by an endorsement to that effect.
Nothing could be elicited from the
statement of recording magistrate that he
had failed to notice whether the deceased
was
mentally
fit
or
not.
In
these
circumstances, the dying declaration stands
duly proved and as it finds corroboration
from the surrounding circumstances proved
on record, it can form the sole basis of
conviction.
The
appeal
be
therefore
dismissed.

ANALYSIS

23.

Having
noticed
the
rival
submissions and the entire prosecution
evidence on record before we proceed to
evaluate the evidence, we must remind
ourselves that if public witnesses of fact
examined by the prosecution are declared
hostile their testimony does not get effaced
from the record. It can be utilised by the
prosecution to the extent it corroborates the
prosecution case. In this case though the
informant - PW-5 (brother of the deceased),
Dewar (PW-3) and Devrani (PW-4) of the
deceased may have been declared hostile
but from the statement of informant that the
written report bears his signature, the
lodging of the FIR at his instance, as
proved by PW-6, is corroborated. PW-5
proved that the deceased was appellant's
wife. This fact is admitted by the appellant
in his statement recorded under section 313
CrPC. Even PW-3 (Chatar Singh) admits
that Bali Singh (appellant) is his elder
brother and the deceased Santosh was his
wife. Similarly, Smt. Rajesh (PW-4) admits
that she is wife of Chatar Singh. Thus, from
the public witnesses examined by the
prosecution
even
though
they
were
declared hostile this much is established
8 All. Bali Singh Vs. State of U.P.
737
that the deceased Santosh was married to
the appellant; Chatar Singh (PW-3) was her
Devar; and Smt. Rajesh (PW-4) her
Devrani. Notably, the dying declaration
(Ex. Ka-5) is to the effect that after she was
set ablaze by her husband when fire was
doused, her Devar, Saas and Sasur had got
her admitted in the hospital. This portion of
the dying declaration finds support from
Ex. Ka-13 as also the medical record
produced by PW-10 which discloses that
she was brought to the hospital by Chatar
Singh i.e. her Dewar.

24. In the instant case, by the
testimony of the I.O. (PW-9) who inspected
the spot, prepared site plan (Ex. Ka-10) and
lifted burnt quilt/Dari from the room where
the deceased was burned, it is proved that
the deceased got burnt in a room of her
matrimonial home. The I.O. had also
disclosed that the quilt and Dari was found
on the floor and not on the cot, which
suggests that when the deceased was ablaze
an effort was made to douse the fire by
throwing a quilt/Dari on her. This evidence
corroborates the dying declaration (Ex. Ka5) wherein it is recorded that after she was
set ablaze, fire was doused by throwing a
quilt on her. Notably, the appellant in his
statement recorded under Section 313 CrPC
does not claim that his wife got burnt at
some other place.

25. In so far as the dying declaration
(Ex. Ka-5) is concerned, the same has been
proved by the recording Magistrate (PW8). He not only proved its recording but
also proved declarant's fitness to depose
and the endorsement/ certificate to that
effect provided by the attending doctor on
the margin of Ex. Ka-5. Perusal of Ex. Ka5 indicates that on its left margin the
attending doctor has endorsed that at 4.10
pm on 17.2.1999, the patient was found
fully conscious and fit for dying declaration
(DD). Thereafter, just below that it is
endorsed that the patient remained fully
conscious during dying declaration (DD).
The
recording
magistrate
has
also
confirmed that the declarant was in a fit
mental condition and was in a position to
speak
when
he
recorded
the dying
declaration. PW-8 stated that the dying
declaration was recorded by him between
4.10 and 4.15. The statement of the
declarant comprises of six short sentences
which can conveniently be recorded in that
time. The argument of the learned counsel
for the appellant that since the certifying
doctor was not examined mental fitness of
the declarant cannot be held proved, is not
acceptable. In Laxman V. State of
Maharashtra, (2002) 6 SCC 710, a
Constitution Bench of the Supreme Court,
held that the court before accepting the
dying declaration must 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. In the instant
case, there is no such suggestion to PW-8
during his cross-examination. In respect of
necessity of medical certificate of fitness of
the declarant, in Laxman's case (supra), in
paragraph 3, it was held: "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 condition 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.
........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
738 INDIAN LAW REPORTS ALLAHABAD SERIES
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 a doctor is
essentially a rule of caution and therefore
the voluntary and truthful nature of the
declaration can be established otherwise."

26. In light of the law noticed above,
on perusal of the record of the instant case,
we find that not only there appears a
certificate of fitness on the margin of the
paper used for recording the dying
declaration but there is a statement of the
recording Magistrate (PW-8) also, about
the declarant being fit to give her
statement. Further, no effort has been there
on the part of the defence to summon the
medical records to demonstrate that the
general or mental condition of that patient
was so low that recording of the declaration
was not feasible. In such circumstances, in
our view, non-examination of the doctor
does not render the dying declaration
unworthy of acceptance.

27. When we come to the contents of
the dying declaration, we find that it is
straightforward and truthful. It states that
the deceased and her husband had a fight;
the fight was because of consumption of
liquor by her husband; husband poured
kerosene on her and set her ablaze; the
incident is of night; thereafter, fire was
doused
by
throwing
quilt
on
her;
whereafter, her Devar, Saas and Sasur
brought her to hospital; that she was
married 15 years ago and has two children.
When we take into account the proven
documents
i.e.
Ex.
Ka-13
(medical
examination report of the deceased), Ex.
Ka-11 (seizure of semi burnt Quilt/ Dari
from the room of the deceased), Ex. Ka-1
(Inquest report), Ex. Ka-2 (autopsy report)
and site plan (Ex. Ka-10), it becomes clear
that the deceased suffered burn injuries in
the night of 12/13.02.1999; that an attempt
to douse the fire by throwing a quilt on her
was made; that she was brought to the
hospital in the night by her Devar and was
medically examined by the doctor at 1.30
am on 13.2.1999 for her burn injuries; that
she remained admitted in the hospital till
she died on 18.02.1999; and the autopsy
report proved that she died due to
septicaemia as a result of those burn
injuries. The statement in the dying
declaration that she was set ablaze by her
husband, after pouring kerosene, in the
night and was brought to the Hospital is
corroborated by Ex. Ka-13. Similarly,
statement that fire was doused by throwing
quilt is corroborated by seizure of burnt
quilt from the spot i.e. Ex. Ka-11.
Likewise, the statement that she was
brought by her Devar is corroborated by
entry to that effect in Ex. Ka-13. Once, this
is the position, we have no hesitation in
coming to the conclusion that the dying
declaration is wholly reliable and truthful
and can on its own form the sole basis of
conviction. We, therefore, uphold the order
of the trial court convicting the appellant.

28. At this stage, an alternative
submission was made by the learned
counsel for the appellant. Learned counsel
for the appellant submits that both from the
written report as well as the dying
declaration it is clear that there was a fight
in between husband and wife on account of
consumption of liquor by the husband
(appellant),
which
suggests
that
the
appellant was in a drunken state; and the
deceased was set ablaze by her husband
during the course of that fight. He
submitted that from the declaration it
8 All. Ram Charan Singh & Anr. Vs. State of U.P.
739
appears that the appellant tried to douse the
fire by throwing a quilt. In these
circumstances, the charge framed against
the appellant is of an offence punishable
under Section 304 IPC and not under
Section 302 IPC. It is argued that it is not
mandatory that on conviction for an
offence punishable under Section 304 IPC,
life imprisonment be awarded. In these
circumstances, since the appellant has
already served incarceration of over 14
years since the date of his conviction i.e.
22.02.2008 he be let out by reducing the
sentence of imprisonment for life to the
sentence already undergone.

29. Sri J.K. Upadhyay, who appears
for the State, does not dispute that no
premeditated plan to kill the deceased has
been proved by the prosecution evidence.
He accepts that as per the dying declaration
the incident occurred during a fight in
between husband and wife on consumption
of liquor by the husband. He thus leaves it
to the discretion of the court to alter the
sentence.

30.

Having
considered
the
submissions on the question of sentence,
and having noticed that the conviction of
the appellant is under Section 304 IPC, we
are of the view that as the appellant has
already served over 14 years of sentence,
though we affirm the conviction of the
appellant under Section 304 IPC but,
looking to the facts of the case and the
mitigating circumstance of an effort to
douse the fire, we are of the considered
view that ends of justice would be served if
the sentence of imprisonment for life
awarded by the trial court is reduced to the
period of sentence already under gone.
Consequently, the appeal is partly allowed
to the extent above. The sentence of
imprisonment for life awarded to the
appellant by the trial court is modified and
reduced to the period of sentence already
undergone. However, the fine and the
default sentence awarded by the trial court
is maintained. Subject to above, the
accused-appellant
shall
be
released
forthwith, unless wanted in any other case,
on compliance of the provisions of Section
437-A CrPC to the satisfaction of the trial
court.

31. Let a copy of this order be
forwarded to the court below along with the
record for information and compliance.
----------
(2022) 8 ILRA 739
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2493 of 1983

Ram Charan Singh & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri T. Rathore, Sri Gaurav Tripathi Ami Cu,
Sri Rajrshi Gupta, Sri Dileep Kumar (Senior
Adv.). Sri Rizwan Ahmad

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 & 34 - The Code of
Criminal Procedure, 1973 - Sections 157 &
161 - no statutory requirement to send
copy of the chik FIR and GD entry of the
written report to the autopsy surgeon -
case based on ocular evidence - if the
court finds the ocular account truthful and
reliable, the existence or non existence of
motive for the crime has little relevance -