# Bhim Sen (In Jail) v. State of U.P

- **Citation:** (2019) 4 ILRA 468
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-11
- **Case number:** Criminal Appeal No. 1749 of 1988
- **Bench:** Bala Krishna Narayana, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhim-sen-in-jail-v-state-of-u-p-45002
- **Pages:** 12

## Headnote

A. Evidence Law - The Indian Evidence Act,
1872 - Section 32 - dying declaration -
Section 106 - Burden of proving fact
especially within knowledge.

The conviction of the appellant in the present
case is essentially based upon the dying
declaration of the deceased - it stands
admitted to the appellant that he was present
in the house and he has failed to come up
with any explanation with regard to the
deceased's clothes having caught fire, the
Court can validly draw an adverse inference
against him on the presumption that the
appellant has concealed material information
pertaining to the death of the deceased from
the Court - the complicity of the appellant in
committing the deceased's murder is proved
from the facts stated by the deceased in her
dying declaration. (Para 29, 44 & 45)

B. Evidence Law - The Indian Evidence
Act, 1872 - Section 32 - doctrine of dying
declaration-'Nemo moriturus praesumitur
mentire' - which means 'a man will not
meet his maker with a lie in his mouth' -
held-the
dying
declaration
of
the
deceased is not liable to be discarded
solely on the ground because there is no
law which requires that dying declaration
in order to be reliable, should be recorded
before the Magistrate. (Para 35)

The doctrine of dying declaration is enshrined
in section 32 of the Indian Evidence Act, 1872
as an exception to the general rule contained
in section 60 of the Evidence Act, which
provides that oral evidence in all cases must
be direct i.e., it must be the evidence of a
witness, who says he saw it. The dying
declaration is, in fact, the statement of a
person, who cannot be called as witness and,
therefore, cannot be cross-examined. Such
statements themselves are relevant facts in
certain cases. (Para 31)

C. Evidence Law - The Indian Evidence
Act, 1872 - Section 106 - Burden of
proving fact especially within knowledge
- When any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him. (Para 43)

The appellant had neither stated in his
examination u/s 313 Cr.P.C. nor he had given
any suggestion to any of the witnesses or
adduced any evidence to show that he was
not present in the house at the time of the
incident. There is complete absence of any
denial from the side of the appellant about his
4 All. Bhim Sen Vs. State of U.P.
469
presence in his house at the time of the
occurrence. (Para 43)

Held:- The dying declaration recorded in
accordance with law, is reliable and gives a
cogent and possible explanation of the
occurrence of the events - no illegality or legal
infirmity in relying upon the deceased's dying
declaration for the purpose of recording the
appellant's conviction - Apart from the dying
declaration of the deceased there is yet
another
extremely
glaring
incriminating
circumstance pointing at the guilt of the
appellant. (Para 41, 42 & 49)

Criminal appeal dismissed. (E-7)

List of cases cited: -

1.Munnawar and others v. State of Uttar
Pradesh and others, 2010 (70) ACC 853 (SC),

2.Bhajju alias Karan Singh v. State of M.P.,
2012 (77) ACC 182 (SC)

3.Munna Raja and another v. The State of
Madhya Pradesh, (1976) 3 SCC 104

4.Munnu Raja and another v. The State of
Madhya Pradesh, (1976) 3 SCC 104

5.State (Delhi Administration) vs Lachhman
Kumar & others, 1986 SCC (Crl) page 2

6.Liyakat Ali vs State reported in 1988 (1)
Crimes page 647

## Text

468 INDIAN LAW REPORTS ALLAHABAD SERIES
not complete to rule out all other
hypothesis than the guilt of the accused.
Hence, the benefit of doubt would have to
go to the accused.

54. Consequently, for all the reasons
recorded above, we have no option but to
allow the appeal. The judgment and order
dated
28.08.1992
passed
by
IVth
Additional Sessions Judge, Moradabad in
Sessions Trial No. 587 of 1986 is hereby
set aside as against the appellant Naresh.
The appellant Naresh is acquitted of all
the charges leveled against him. If the
appellant is on bail, he need not surrender.

55. Let a copy of this order be sent
to the trial court for compliance.
----------
(2019)12 ILR A468

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 1749 of 1988

Bhim Sen ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri G.N. Sharma, Sri Jitendra Singh

Counsel for the Respondent:
D.G.A.

A. Evidence Law - The Indian Evidence Act,
1872 - Section 32 - dying declaration -
Section 106 - Burden of proving fact
especially within knowledge.

The conviction of the appellant in the present
case is essentially based upon the dying
declaration of the deceased - it stands
admitted to the appellant that he was present
in the house and he has failed to come up
with any explanation with regard to the
deceased's clothes having caught fire, the
Court can validly draw an adverse inference
against him on the presumption that the
appellant has concealed material information
pertaining to the death of the deceased from
the Court - the complicity of the appellant in
committing the deceased's murder is proved
from the facts stated by the deceased in her
dying declaration. (Para 29, 44 & 45)

B. Evidence Law - The Indian Evidence
Act, 1872 - Section 32 - doctrine of dying
declaration-'Nemo moriturus praesumitur
mentire' - which means 'a man will not
meet his maker with a lie in his mouth' -
held-the
dying
declaration
of
the
deceased is not liable to be discarded
solely on the ground because there is no
law which requires that dying declaration
in order to be reliable, should be recorded
before the Magistrate. (Para 35)

The doctrine of dying declaration is enshrined
in section 32 of the Indian Evidence Act, 1872
as an exception to the general rule contained
in section 60 of the Evidence Act, which
provides that oral evidence in all cases must
be direct i.e., it must be the evidence of a
witness, who says he saw it. The dying
declaration is, in fact, the statement of a
person, who cannot be called as witness and,
therefore, cannot be cross-examined. Such
statements themselves are relevant facts in
certain cases. (Para 31)

C. Evidence Law - The Indian Evidence
Act, 1872 - Section 106 - Burden of
proving fact especially within knowledge
- When any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him. (Para 43)

The appellant had neither stated in his
examination u/s 313 Cr.P.C. nor he had given
any suggestion to any of the witnesses or
adduced any evidence to show that he was
not present in the house at the time of the
incident. There is complete absence of any
denial from the side of the appellant about his
4 All. Bhim Sen Vs. State of U.P.
469
presence in his house at the time of the
occurrence. (Para 43)

Held:- The dying declaration recorded in
accordance with law, is reliable and gives a
cogent and possible explanation of the
occurrence of the events - no illegality or legal
infirmity in relying upon the deceased's dying
declaration for the purpose of recording the
appellant's conviction - Apart from the dying
declaration of the deceased there is yet
another
extremely
glaring
incriminating
circumstance pointing at the guilt of the
appellant. (Para 41, 42 & 49)

Criminal appeal dismissed. (E-7)

List of cases cited: -

1.Munnawar and others v. State of Uttar
Pradesh and others, 2010 (70) ACC 853 (SC),

2.Bhajju alias Karan Singh v. State of M.P.,
2012 (77) ACC 182 (SC)

3.Munna Raja and another v. The State of
Madhya Pradesh, (1976) 3 SCC 104

4.Munnu Raja and another v. The State of
Madhya Pradesh, (1976) 3 SCC 104

5.State (Delhi Administration) vs Lachhman
Kumar & others, 1986 SCC (Crl) page 2

6.Liyakat Ali vs State reported in 1988 (1)
Crimes page 647

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. Heard Sri Jitendra Singh, learned
counsel for the appellant and Sri M.C.
Joshi and Smt. Manju Thakur, learned
A.G.A.-I for the State.

2. Appellant Bhim Sen has filed this
appeal before this Court against the
judgement and order dated 06.08.1988
passed by IInd Additional Sessions Judge,
Mathura in S.T. No. 603 of 1987, 'State
Vs. Gir Prasad and two others' arising out
of Case Crime No. 157 of 2014 by which
he has been convicted and sentenced to
imprisonment for life u/s 302 I.P.C. and
three years rigorous imprisonment u/s
498-A I.P.C. Both the sentences were
directed to run concurrently.

3. Briefly stated the facts of this case
are that appellant Bhim Sen son of
Dhaniram was married according to
Hindu rites and rituals to Smt. Bina
(deceased), daughter of Sukha, resident of
village- Pilua Sadikpur, P.S.- Farah,
District- Mathura about three years before
the incident and one Bainiram was the
middle man. It is also alleged that
Bainiram had given a loan of Rs. 14,000/-
to Dhaniram, father of the three accused,
prior to the said marriage and when
Dhaniram showed his reluctance to return
the loan amount, Bainiram asked him to
return the same with a promise to give
him loan again at the time of marriage of
appellant Bhim Sen, as a result of which
Dhaniram returned the said money to
Bainiram. It is further alleged that at the
time of the marriage of appellant Bhim
Sen when Dhaniram again demanded the
loan from Bainiram, he refused to oblige
him. However, for the said marriage of
appellant Bhim Sen, Dhaniram took loan
from some third person. The other two
accused, Chhotey and Gir Prasad used to
tell appellant Bhim Sen that he must
compensate them for the money spent by
their father in the marriage. It is further
alleged that two months prior to May,
1986, appellant Bhim Sen went to Sukha,
father of Smt. Bina (deceased) and asked
him to arrange payment of Rs. 7,000/-
spent by her father in the marriage but
Sukha showed his inability to arrange the
said money. Thereafter, all the aforesaid
three accused, it is alleged, started
470 INDIAN LAW REPORTS ALLAHABAD SERIES
harassing and maltreating Smt. Bina for
the said amount. It is further alleged that
on 19.05.1986 at about 7 a.m., P.W.1
informant Girraj Singh, Pradhan of
village- Kharba along with P.W.2 Ram
Gopal alias Ghora happened to pass from
near the house of appellant Bhim Sen and
they heard shrieks of a lady emanating
from inside his house. When they went
inside the house, they saw Smt. Bina in
the courtyard, appellant Bhim Sen and
accused Chhotey had caught hold of her
while accused Gir Prasad had set her on
fire as a result of which she was burnt. It
is also alleged that before putting her on
fire, kerosene oil had been poured on her
body by accused-appellant Bhim Sen. The
said occurrence was also witnessed by
P.W.3 Saligram, P.W.4 Ram Dayal and
other residents of village- Nagla. Smt.
Bina was taken to P.S.- Raya by P.W.1
informant Girraj Singh to lodge the
written report of the incident (Ext.Ka.1)
containing the prosecution version of the
case.

4. Smt. Bina was immediately taken
to Civil Hospital, Mathura and from there,
she was taken to Methodist Hospital,
Jaisingh Pura, Mathura. There she made a
statement which was recorded as her
dying declaration by P.W.13 Dr. Solomon
Chatterjee. On 23.05.1986, Smt. Bina
died as a result of burn injuries received
by her in the above occurrence.

5.

After
completion
of
the
investigation of the aforesaid case, the
Investigating Officer submitted chargesheet against all the three accused before
the Chief Judicial Magistrate, Mathura
(Ext.Ka.18).

6. Since the offences mentioned in
the charge-sheet were triable exclusively
by the Court of Sessions, Chief Judicial
Magistrate,
Mathura
committed
the
accused for trial to the Court of Sessions
Judge, Mathura where Case Crime No.
157 of 2014 was registered as S.T. No.
603 of 1987, "State Vs. Gir Prasad and
two others", and made over for trial from
there to the Court of IInd Additional
Sessions Judge, Mathura who on the basis
of
material
collected
during
the
investigation
and
after
hearing
the
prosecution as well as the accused on the
point of charge, framed charge u/s 302 &
498-A I.P.C. against appellant Bhim Sen
while acquitted co-accused Chhotey @
Om Prakash and Gir Prasad of all the
charges. Appellant Bhim Sen abjured the
charges framed against him and claimed
trial.

7. The prosecution in order to prove
its case against the accused-appellant
Bhim Sen examined as many as 14
witnesses.

8. P.W.1 informant Girraj Singh,
who is the father of the deceased, stated
that on 19.05.1986 at about 7 a.m. when
he along with P.W.2 Ghora alias Ram
Gopal was passing from near the house of
the accused, he heard shrieks of a lady
from inside the house and when they went
inside the house, they found that appellant
Bhim Sen and Chhotey had caught hold
of Smt. Bina whose body was on fire and
accused Gir Prasad was also present there.
He also stated that at that time, the three
accused were taunting Smt. Bina that her
father had not returned Rs. 12,000/- which
he had promised to give. He also stated
that in the said occurrence, appellant
Bhim Sen also received burn injuries. He
also stated that thereafter he lodged
written report of the incident (Ext.Ka.1) at
P.S.- Raya, District- Mathura.
4 All. Bhim Sen Vs. State of U.P.
471

9. P.W.2 Ram Gopal alias Ghora is also
an eye-witness of the occurrence and he
corroborated
the
statement
of
P.W.1
informant Girraj Singh to some extent but
since he had not fully corroborated the
statement which he had given earlier u/s 161
Cr.P.C., at the request of public prosecutor, he
was declared hostile and public prosecutor
was allowed to cross-examine him.

10. P.W.3 Saligram and P.W.4 Ram
Dayal
were
eye-witnesses
of
the
occurrence but both of them turned hostile
and did not support the prosecution case.

11. P.W.5 Keshav, who is the real
brother of the deceased Smt. Bina stated
that about three years ago, his sister was
married
with
appellant
Bhim
Sen
according to Hindu rites in which one
Bainiram was middleman. He had also
stated that Bainiram had given a loan of
Rs. 14,000/- to Dhaniram, father of the
three accused and he took the above loan
amount from Dhaniram under the excuse that
he would again advance money at the time of
marriage of appellant Bhim Sen but he did not
stand by his promise, as a result of which
Dhaniram had to take loan from some other
persons to meet the expenses of marriage of
appellant Bhim Sen. He also stated that
accused Gir Prasad and Chhotey used to ask
appellant Bhim Sen to compensate them for the
money spent by their father in his marriage and
two months before the death of Smt. Bina,
appellant Bhim Sen had come to his house and
demanded Rs. 7,000/- from his father to
arrange the money which had been spent in the
marriage of Smt. Bina but his father refused.
He also stated that thereafter, he saw his sister
in a burnt condition in Methodist Hospital,
Jaisingh Pura, Mathura.

12. P.W.6 Dr. P.K. Sharma stated
that on 19.05.1986, he conducted medical
examination of Smt. Bina and he found 1
to 3 degree burns over the face, neck,
skull, hair of Smt. Bina and also on other
portions of her body and the burns were
about 80 to 85%. He also opined that the
injuries found on the body of Smt. Bina
could have been caused to her at about 7
a.m. on the same day and he proved his
injury report as (Ext.Ka.2).

13. P.W.7 Constable Vinod Kumar
stated that on 23.05.1986, he along with
Constable Bachu Singh had brought the
dead body of Smt. Bina to Mathura for
postmortem examination.

14. P.W.8 Head Constable Madan
Lal is the scribe of check F.I.R.
(Ext.Ka.3) and corresponding G.D. Entry
(Ext.Ka.4). He also stated that on
28.05.1986,
the
present
case
was
converted from u/s 307 I.P.C. to u/s 302
I.P.C. and he proved corresponding G.D.
Entry (Ext.Ka.5). He also proved G.D.
Entries (Exts.Ka.6 and Ka.7) which
related to the factum of sending of special
report to the concerned authorities and
also entry regarding the return of the
constable at the police station after
delivery of the special report.

15. P.W.9 S.I. P.C. Chaturvedi
stated that on 23.05.1986, he conducted
inquest on the dead body of Smt. Bina
and prepared inquest report (Ext.Ka.8)
and other related documents (Exts.Ka.9 to
Ka.13).

16. P.W.10 S.I. Satyapal Singh
stated that the present case was registered
at the police station in his presence and he
was entrusted with the investigation of the
case. He stated that during investigation
of the case, he prepared site plan of the
place of occurrence (Ext.Ka.14) and
472 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery memos of 'pipi' of kerosene oil
(Ext.Ka.15), burnt dhoti (Ext.Ka.16) and
kerosene oil stained earth (Ext.Ka.17). He
also stated that thereafter the investigation
of the case was handed over by him to
P.W.12 Deputy S.P. Suresh Chandra
Sharma as it was the case of dowry death.

17. P.W.11 Dr. S.K. Srivastava,
Methodist
Hospital,
Jaisingh
Pura,
Mathura produced the dying declaration
of Smt. Bina dated 19.05.1986 from the
record of the hospital and proved the
same as (Ext.Ka.20).

18. P.W.12 Deputy S.P. Suresh
Chandra Sharma who had investigated the
case in later stages, stated that after
completion of investigation, he filed
charge-sheet (Ext.Ka.18) against the three
accused.

19. P.W.13 Dr. Solomon Chatterjee
stated that on 19.05.1986 when he was
working in Methodist Hospital, Jaisingh
Pura Mathura, he recorded the dying
declaration of Smt. Bina (Exts.Ka.19). He
also stated that he recorded the said dying
declaration instead of calling a Magistrate
because Smt. Bina had burn injuries of
95% and he was afraid that she may
succumb to her injuries even before the
arrival of the Magistrate.

20. P.W.14 Dr. M.K. Gupta stated that
on 23.5.1986, he was posted as Medical
Officer, Civil Hospital, Mathura and had
conducted postmortem examination on the
dead body of Smt. Bina and prepared her
postmortem report (Ext.Ka.21) He noted
following ante-mortem injuries on the
person of Smt. Bina :-

Superficial two deep septic
wound burns present on head and face,
neck both sides, thorex both sides,
including both breasts upper part of
abdomen above the umblicus both sides.
Both upper limb, both side front and back
including both hands lower part of both
thighs and whole of leg on both sides.
Foul smelling coming from septic wounds.
Skin is peeled at places. Vesicles present
at places.

21. According to P.W.14 Dr. M.K.
Gupta, the death of Smt. Bina was caused
due to shock and toxaemia as a result of
ante-mortem burn injuries.

22. The appellant and the other coaccused in their examination u/s 313
Cr.P.C. admitted that Smt. Bina was
married to the appellant but rest of the
allegations
were
denied
by
them.
Appellant Bhim Sen also stated that
P.W.1 informant Girraj Singh, Pradhan of
the village, wanted to grab the land
belonging to his family and for that
reason, he and his brothers had been
falsely implicated in the present case. The
accused-appellant also examined Hoti Lal
and Dr. H.K. Kulshrestha as D.W.1 and
D.W.2.

23. Learned IInd Additional Sessions
Judge, Mathura after considering the
submissions advanced before him by the
learned
counsel
for
the
parties
and
scrutinizing the evidence on record, both oral
as well as documentary, by the impugned
judgement and order, while acquitting coaccused Chhotey @ Om Prakash and Gir
Prasad, convicted the appellant and awarded
aforesaid sentences to him.

24. Hence, this appeal.

25. It is contended by Sri Jitendra
Singh, learned counsel for the appellant
4 All. Bhim Sen Vs. State of U.P.
473
that no one had actually seen the incident
and after the deceased's clothes had caught
fire while she was cooking food and taken
to the hospital where she succumbed to her
burn injuries, an absolutely false F.I.R. was
lodged by P.W.1 informant Girraj Singh,
the
Pradhan
of
the
village,
falsely
implicating his brothers with the sole
malafide
intention
of
grabbing
their
property. He next submitted that the glaring
contradictions
between
the
recitals
contained in the F.I.R. lodged by P.W.1
informant Girraj Singh describing himself
as the eye-witness and those contained in
the dying declaration of the deceased which
itself is a forged and fabricated statement,
totally belies the prosecution story that the
appellant had caused the death of his wife
after pouring kerosene oil on her and setting
her ablaze on account of her failure to bring
the sum of Rs. 14,000/- which his brothers
had allegedly spent on the marriage
between the deceased and the appellant. He
next submitted that there is no explanation
why the dying declaration of the deceased
was not recorded before the Magistrate
although she had remained alive for more
than four days after the incident and there is
no cogent and reliable evidence on record
indicating that the deceased who was
admitted to the hospital and with more than
95 burn injuries, was in a fit mental
condition to record her dying declaration or
for that matter even to speak and hence,
reliance placed by the learned trial Judge on
the deceased's dying declaration is totally
unjustified. He lastly submitted that the
neither the recorded conviction of the
appellant nor the sentence awarded to him
can be sustained and is liable to be set-aside.

26. Per contra Smt. Manju Thakur,
learned A.G.A.-I for the State submitted
that it is fully proved from the evidence of
the three eye witnesses of fact that the
appellant had set his wife (deceased)
ablaze after pouring kerosene oil on her
on account of non-fulfillment of demand
made by him from her family members. It
is further established from the medical
evidence that the deceased had died as a
result of the burn injuries received by her
in her matrimonial home. She also
contended that even if it is assumed for
the sake of arguments that there are
contradictions in the statements of the
eye-witnesses and the facts stated by the
deceased in the dying declaration, even
then the appellant is not entitled to be
acquitted of the charges for the simple
reason that there being no denial on the
part of the appellant that at the time of the
incident, he was not present in the house
and hence, the facts relating to the
unnatural death of the deceased were
within his special knowledge and he
having failed to come up with any
explanation for the circumstances under
which the deceased had caught fire and
received burn injuries to which she later
succumbed, the appellant cannot escape
fastening of guilt of the murder of his
wife
on
him.
Even
otherwise,
contradiction if any vis-a-vis the F.I.R.
recitals and the dying declaration of the
deceased are not so material so as to
render
the
entire
prosecution
case
unreliable and untrustworthy. This appeal
lacks merit and is liable to be dismissed.

27. We have heard learned counsel
for the parties present and perused the
entire lower court record very carefully.

28. The only question which arises
for our consideration in this appeal is that
whether the prosecution has been able to
prove its case against the accusedappellants beyond all reasonable doubts
or not ?
474 INDIAN LAW REPORTS ALLAHABAD SERIES

29. The conviction of the appellant
in the present case is essentially based
upon the dying declaration of the
deceased (Exts.Ka.19 & Ka.20).

30. Before testing the grounds on
which the learned counsel for the
appellant has challenged the veracity of
the dying declaration of the deceased, we
consider it useful to have a glance at the
law on the issue of admissibility of dying
declaration for the purpose of conviction
of appellant.

31.

The
doctrine
of
dying
declaration is enshrined in the legal
maxim 'Nemo moriturus praesumitur
mentire', which means 'a man will not
meet his maker with a lie in his mouth'.
The doctrine of dying declaration is
enshrined in section 32 of the Indian
Evidence Act, 1872 (hereinafter called as,
'Evidence Act') as an exception to the
general rule contained in section 60 of the
Evidence Act, which provides that oral
evidence in all cases must be direct i.e., it
must be the evidence of a witness, who
says he saw it. The dying declaration is, in
fact, the statement of a person, who
cannot be called as witness and, therefore,
cannot
be
cross-examined.
Such
statements themselves are relevant facts
in certain cases.

32. In the case of Munnawar and
others v. State of Uttar Pradesh and
others reported in 2010 (70) ACC 853
(SC), the Apex Court held as under:

"that a dying declaration can be
relied upon if the deceased remained alive
for a long period of time after the incident
and died after recording of the dying
declaration. That may be evidence to
show that his condition was not overtly
critical or precarious when the dying
declaration was recorded."

33. It would be pertinent to note the
case of Bhajju alias Karan Singh v. State
of M.P. reported in 2012 (77) ACC 182
(SC) before the Apex Court which had
almost
identical
facts.
The
dying
declaration of the deceased was relied
upon as the witnesses of fact did not
support the prosecution case and were
declared hostile and similar defence was
taken that the deceased had caught fire
while she was cooking food. The Hon'ble
Court referring to the case of Munna
Raja and another v. The State of
Madhya Pradesh reported in (1976) 3
SCC 104 relied upon by the learned
counsel
for
the
accused-appellant
observed as under:

"Reliance placed by the learned
counsel
appearing
for
the
appellant/accused upon the judgement of
this Court in the case of Munnu Raja and
another v. The State of Madhya Pradesh
reported in (1976) 3 SCC 104 to contend
that a dying declaration cannot be
corroborated by the testimony of hostile
witnesses is hardly of any help. As
already noticed, none of the witnesses or
the authorities involved in the recording
of the dying declaration had turned
hostile. On the contrary, they have fully
supported the case of the prosecution and
have, beyond reasonable doubt, proved
that the dying declaration is reliable,
truthful and was voluntarily made by the
deceased. We may also notice that this
very judgement relied upon by the
accused itself clearly says that the dying
declaration can be acted upon without
corroboration and can be made the basis
of conviction. Paragraph 6 of the said
judgement reads as under:-
4 All. Bhim Sen Vs. State of U.P.
475

".....It is well settled that though
a dying declaration must be approached
with caution for the reason that the maker
of the statement cannot be subject to
cross-examination, there is neither a rule
of law nor a rule of prudence which has
hardened into a rule of law that a dying
declaration cannot be acted upon unless it
is corroborated (see Khushal Rao v.
State of Bombay). The High Court, it is
true, has held that the evidence of the two
eye-witnesses corroborated the dying
declarations but it did not come to the
conclusion that the dying declarations
suffered from any infirmity by reason of
which it was necessary to look out for
corroboration."

In para-22 of this report the
Hon'ble Court has further held that-

"The law is very clear that if the
dying declaration has been recorded in
accordance with law, is reliable and gives
a cogent and possible explanation of the
occurrence of the events, then the dying
declaration can certainly be relied upon
by the Court and could form the sole
piece of evidence resulting in the
conviction of the accused. This Court has
clearly stated the principle that section 32
of the Evidence Act, 1872 (for short 'the
Act') is an exception to the general rule
against the admissibility of hearsay
evidence. Clause (1) of section 32 makes
the statement of the deceased admissible,
which is generally described as a 'dying
declaration'."

The Apex Court relying upon
the dying declaration of the deceased
being consistent with the prosecution case
which was fully corroborated by medical
evidence did not disturb the concurrent
findings of guilt of accused-appellant
recorded by the two Courts. In view of the
aforesaid preposition of the law the dying
declaration of the deceased recorded in
this case fulfills all the legal requirements
and it is in consonance with the
prosecution story as also the medical
evidence.

34. Thus, what follows from the
reading of the aforesaid authorities on the
issue is that if the dying declaration has
been recorded in accordance with law, is
reliable and gives a cogent and possible
explanation of the occurrence of the
events, then the dying declaration can
certainly be relied upon by the Court
could form a sole piece of evidence
resulting in the conviction of the the
accused.

35. Admissibility of the dying
declaration of the deceased has been
assailed by the learned counsel for the
appellants on four grounds. Firstly, it was
not recorded before the Magistrate
although the circumstance did not warrant
any such urgency as shown by P.W.13 Dr.
Solomon
Chatterjee
in
recording
deceased's dying declaration without
waiting for the Magistrate to arrive. In our
opinion, the dying declaration of the
deceased is not liable to be discarded
solely on the aforesaid ground because
there is no law which requires that dying
declaration in order to be reliable, should
be recorded before the Magistrate. Before
drawing any adverse inference against the
prosecution on account of the dying
declaration having been recorded by the
doctor attending her and not before the
Magistrate, we will have to examine the
other attending circumstances also.

36. The second ground on which the
deceased's dying declaration has been
challenged is that there was evidence on
record showing that when she was
admitted to the hospital, she was injected
476 INDIAN LAW REPORTS ALLAHABAD SERIES
pethidine injection and as such she was
not in a position to speak and hence, her
dying declaration could not have been
recorded there. In this regard, learned
counsel for the appellant invited attention
of the court to the verdict of Hon'ble
Supreme Court rendered in the case State
(Delhi Administration) vs Lachhman
Kumar & others reported in 1986 SCC
(Crl) page 2. In the aforesaid case before
the Hon'ble Supreme Court, pethidine
injection had been given to the deceased
and the doctor prescribed repetition of it
every eight hours. It was observed by
Hon'ble Supreme Court in para 26 of the
judgement on page 17 that a judicial
notice can be taken of the fact that after
pethidine injection is given, the patient
would not have normal alertness and thus,
the certificate of the doctor that deceased
was in a fit condition to make a dying
declaration can not be given full credit.
The above observation was made by
Hon'ble Supreme Court on the basis of the
peculiar facts of that case. In that case, a
dying declaration of a lady had been
recorded by a police officer in suspicious
circumstances which was contradictory to
her earlier oral dying declaration and the
court while dis-believing the said dying
declaration took the above fact also in
view that she had been given a pethidine
injection before her dying declaration was
recorded. So far as the present case is
concerned,
P.W.13
Dr.
Solomon
Chatterjee was cross-examined quite in
detail regarding the effect of pethidine
injection and on pages 5 and 6 of his
statement, he stated that if pethidine
injection of small dose of 50 mg is given
to a patient then the patient need not in
every case became unconscious. He also
opined that main function of the pethidine
injection is to reduce the pain of the
patient. He specifically stated that when
he recorded the dying declaration of Smt.
Bina, she was fully conscious. A
certificate to this effect was also recorded
by the doctor below the dying declaration
of Smt. Bina (Ext.Ka.19) that the patient
was in a fully lucid condition. A reading
of the entire evidence of P.W.13 Dr.
Solomon Chatterjee leaves no doubt that
when he recorded the dying declaration
(Ext.Ka.19) of Smt. Bina, she was fully
conscious and, therefore, merely because
a pethidine injection had been given to
her earlier to reduce her pain, from this
fact, no presumption can be drawn that
she was not in a fit condition to give the
said dying declaration.

37. We further find that there is
nothing on the record indicating anything
on the file to show that when her dying
declaration was recorded by P.W.13 Dr.
Solomon Chatterjee, Smt. Bina was not in
a fit condition to make the said dying
declaration.

38. The next ground raised on behalf
of appellant Bhim Sen is that it is
admitted
to
P.W.13
Dr.
Solomon
Chatterjee that when Smt. Bina was
brought to Methodist Hospital, she had
about 90 to 95% burns and thus,
according to learned counsel for the
appellant, when a patient has suffered
such burn injuries, it is apparent that
he/she cannot be in a fit condition to make
a dying declaration. When in this regard,
P.W.13 Dr. Solomon Chatterjee was
cross-examined, he stated that inspite of
90 to 95% burns, Smt. Bina was in a
condition to make a dying declaration. In
Liyakat Ali vs State reported in 1988 (1)
Crimes page 647, Hon'ble Delhi High
Court observed that a patient having even
90% burns may even be in a position to
give a statement depending on nature and
4 All. Bhim Sen Vs. State of U.P.
477
depth of the burns and thus simply
because a patient has 90 to 95% burns, it
does not lead to the only conclusion that
he/she is not in a fit condition to make
any statement. P.W.13 Dr. Solomon
Chatterjee who is an absolutely honest an
independent witness and who has no
motive
whatsoever
either
against
appellant Bhim Sen or against any other
accused and who had no opportunity to
record dying declaration (Ext.Ka.19) of
Smt. Bina has stated clearly that when he
recorded her statement, she was in a fit
condition to make the statement and there
is nothing on the record to dis-believe the
above contention of P.W.13 Dr. Solomon
Chatterjee and, therefore, simply because
she had 90 to 95% burns on her body, it
will not be enough to believe that she was
not in a fit condition to make a statement
when her dying declaration was recorded.

39. The fourth ground on which the
dying declaration has been castigated by
the learned counsel for the appellant is
that there are material contradictions
between the facts stated by the deceased
in her dying declaration and those in the
written report of the incident. Inviting our
attention to the written report of the
incident (Ext.Ka.1) and the deceased's
dying
declaration
(Ext.Ka.19),
he
submitted that while in the written report
of the incident, it has been recited that
when the informant reached the house of
the deceased on hearing her shrieks at
about 7 p.m., he saw that appellant Bhim
Sen and Jyoti had caught the hands of
Smt. Bina and set her ablaze shouting that
her family members had failed to fulfill
their demands of dowry of Rs. 10,000/-
and the incident was the result of the
aforesaid
omission
on
their
part.
However, the deceased in her dying
declaration had stated that her brother-inlaw and sister-in-law (jeth and jethani)
used to quarrel with her everyday and ask
her to bring Rs. 12,000/- from her
paternal home which was spent on her
marriage. On 19.05.1986 when she had
returned after answering the call of nature
in the morning, her brother-in-law and
sister-in-law had again quarrelled with her
and thereafter her husband Bhim Sen had
sprinkled kerosene oil on her and set her
ablaze. The villagers had saved her.

40. We do not find any reason to
disbelieve the dying declaration of the
deceased on the ground of aforesaid
contradictions. The written report of the
incident was not lodged by the deceased
and hence, the defence cannot get any
advantage of the aforesaid discrepancy
especially when we have found her dying
declaration to be a valid document.

41. The dying declaration in this
case, in our opinion, has been recorded in
accordance with law, is reliable and gives
a cogent and possible explanation of the
occurrence of the events.

42. Thus, in view of the above, we
do not find that the learned trial Judge
committed any illegality or legal infirmity
in relying upon the deceased's dying
declaration (Ext.Ka.19) for the purpose of
recording
the
appellant's
conviction.
Apart from the dying declaration of the
deceased (Ext.Ka.19), we find that there
is
yet
another
extremely
glaring
incriminating circumstance pointing at the
guilt of the appellant.

43. The appellant had neither stated
in his examination u/s 313 Cr.P.C. nor he
had given any suggestion to any of the
witnesses or adduced any evidence to
show that he was not present in the house
478 INDIAN LAW REPORTS ALLAHABAD SERIES
at the time of the incident. There is
complete absence of any denial from the
side of the appellant about his presence in
his house at the time of the occurrence. In
such a case, Section 106 of the Evidence
Act comes into play. Section 106 of the
Evidence Act reads as hereunder :-

Section 106 in The Indian Evidence
Act, 1872

106. Burden of proving fact
especially within knowledge--When any
fact is especially within the knowledge of
any person, the burden of proving that
fact is upon him. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden
of proving that he had a ticket is on him.

44. Now, since we have already
noted that it stands admitted to the
appellant that he was present in the house
and he has failed to come up with any
explanation with regard to the deceased's
clothes having caught fire, the Court can
validly draw an adverse inference against
him on the presumption that the appellant
has
concealed
material
information
pertaining to the death of the deceased
from the Court.

45. Thus, the complicity of the
appellant in committing the deceased's
murder is proved from the facts stated by
the deceased in her dying declaration.

46. Although there is no law which
requires that a conviction can be based
upon a dying declaration only when
corroborated by other evidence. In the
present case, the facts deposed by the
deceased in her dying declaration finds
corroboration
from
the
other
circumstances as well. The presence of
the appellant at the time and place of the
incident is not only established from the
evidence of P.W.1 informant Girraj Singh
but also from the testimony of Dr. H.K.
Kulshreshtha, who was examined as
D.W.2. and who had proved the injuries
of the deceased as well as the appellant
Bhim Sen which he is alleged to have
received in the same occurrence.

47. Learned counsel for the
appellant has endeavoured to persuade us
that the factum of the deceased also
having received injuries in the same
incident is a very strong circumstance
indicating that the appellant could not
have set the deceased on fire as he himself
had received injuries in the occurrence
trying to douse the fire in order to save
her.

48. The aforesaid ground deserves to
be rejected forthwith. It is evident from
the injury report of the appellant as well
as the evidence of D.W.2 Dr. H.K.
Kulshreshtha that the appellant had got
his injuries examined at 6.45 p.m.
although the incident had taken place at 7
a.m. No explanation is coming forth for
the inordinate delay of almost 12 hours on
the part of the appellant in getting his
injuries examined promptly. Under such
circumstances, the possibility of the burn
injuries
noted
by
D.W.1
and
the
appellant's body being self-inflicted with
the object of saving himself, cannot be
ruled out.

49. Thus, upon a holistic view of the
facts of the case, attending circumstances
4 All. Bashir & Anr. Vs. State of U.P.
479
and the evidence on record, we do not
find that the learned trial Judge committed
any other illegality in convicting the
appellant
and
awarding
aforesaid
sentences to him.

50. This appeal lacks merit and is
accordingly dismissed.

51. Appellant Bhim Sen is on bail.
His bail bonds are cancelled and his
sureties
discharged.
Chief
Judicial
Magistrate, Mathura is directed to get
appellant Bhim Sen arrested and sent to
jail for serving out the remaining part of
his sentences.

52. There shall however, be no order
as to costs.
----------
(2019)12 ILR A479

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 2421 of 1985

Bashir & Anr. ...Accused/Appellants
 (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.A. Shah, Sri Ambrish Kumar Kashyap

Counsel for the Respondent:
D.G.A.

A. Evidence Law - Indian Evidence Act,
1872 -Motive - direct evidence - eye
witness - deceased died on account of fire
arm injuries - cause of death - shock and
hemorrhage as a result of ante mortem
injuries - no motive to commit the
murder of the deceased - in case of direct
evidence motive has no significance -
P.W. 2(eye witness of the occurrence)
appears to be highly inimical witness
against the appellant - eye witness
standing at a distance of 50 paces from
the place of occurrence - eye witness
reached the place of occurrence after half
an hour and saw that the deceased lying
dead - his presence at the place of
occurrence is doubtful - no recovery of
any weapon or incriminating article made
from the possession of the appellant -
Prosecution failed to prove its case
beyond
reasonable
doubt-
Accused
entitled to be acquitted . (Para 31, 34 & 35)

Criminal appeal allowed. (E-7)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present appeal has been filed
by two accused-appellants out of which
appellant no. 1 Bashir son of Sri Murli
died during the pendency of appeal. The
appeal on his behalf has already been
ordered to be abated by Co-ordinate
Bench of this Court vide order dated
13.9.2018 and the present appeal survives
with respect to appellant Afsar son of
Roab Sher only, hence the Court proceeds
to adjudicate the aforesaid appeal with
respect to the said appellant.

2. The present appeal has been filed
by the appellant against the judgment and
order dated 29.7.1985 passed by Ist
Additional Sessions Judge, Farrukhabad in
S.T. No. 364 of 1984 convicting and
sentencing the appellant under section
302/34 I.P.C. to undergo life imprisonment.

3. The prosecution case in brief is
that an F.I.R. was lodged by the informant
P.W. 1 Neksu at police station Kampil
against two accused, namely, Bashir and
Afsar stating that on 20.3.1984 he along