# Brijesh Kaushal & Anr v. State of U.P

- **Citation:** (2021) 11 ILRA 828
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Criminal Appeal No. 3023 of 2009
- **Bench:** Attau Rahman Masoodi, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kaushal-anr-v-state-of-u-p-46625
- **Pages:** 13

## Headnote

Govt. Advocate, Brijesh Kumar Yadav, Indra
Pratap Singh

Marriage solemnized 5 years ago-earlier case was
filed-same was compromised-deceased living in her
matrimonial house since long-conviction made on the
basis of dying declaration-dying declaration is
suspicious-prosecution could not prove its caseimpugned conviction order set-aside.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,959 of 48,395. This is a partial read: ask again with offset=39959 for what follows._

828 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial court within 15 days and be taken into
custody to serve their sentences, failing which
the trial court shall proceed according to law.

26. Criminal Revision has no merits and is
hereby dismissed.

27. Copy of this judgment along with
lower court record be transmitted to the learned
trial court immediately.
----------
(2021)12ILR A828
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR, J.

Criminal Appeal No. 3023 of 2009

Brijesh Kaushal & Anr. ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Nagendra Mohan, Maneesh Kumar Singh, Navita
Sharma

Counsel for the Respondent:
Govt. Advocate, Brijesh Kumar Yadav, Indra
Pratap Singh

Marriage solemnized 5 years ago-earlier case was
filed-same was compromised-deceased living in her
matrimonial house since long-conviction made on the
basis of dying declaration-dying declaration is
suspicious-prosecution could not prove its caseimpugned conviction order set-aside.

Appeal allowed. (E-9)

List of Cases cited:

1. Darshana Devi Vs St. of Pun. [(1996) SCC (Cri) 38]

2. P. Mani Vs St. of T.N. [(2006) 2 SCC (Cri) 36]

3. St. of Raj. Vs Prithvi Raj [(1995) SCC (Cri) 934]

4. Meera Vs St. of Raj. [(2004) SCC (Cri) Supp. 16]

5. Ajay & ors. Vs St. of U.P. [(2020) 2 JIC 537 (All.)]

6. Nagabhushan Vs St. of Karn. [2021 2 SCC (Cri)
539]: [(2021) 5 SCC 222]

7. P. Mani Vs St. of T.N.[(2006) 2 SCC (Cri) 36]

8. Ram Das Vs St.of Mah. [(1977) SCC (Cri) 254]

9. St. of Raj. Vs Prithvi Raj [(1995) SCC (Cri) 934]

10. Prem Pal Singh Vs State [ 2017 (1) JIC Reports
104 (All)]
(Delivered by Hon'ble Manish Kumar, J.)

1. This Criminal appeal has been filed by
the appellants against the judgment and order
dated 27.11.2009 passed by Additional Sessions
Judge, FTC-Vth, court no. 14, Sultanpur in S.T.
No. 332 of 2007 arising out of Crime No. 372 of
2007 under Sections 302/34, 498 A IPC and 3/4
of the Dowry Prohibition Act, 1961 registered at
Police Station-Musafirkhana, District-Sultanpur
convicting the appellant Brijesh Kaushal and
Smt. Nirmala and sentencing them for life
imprisonment along with fine of Rs. 5000/ each,
in
default
thereof
to
undergo
simple
imprisonment for a period of three months.

2. Heard Shri Maneesh Kumar Singh,
learned counsel for the appellants and Shri
Umesh Verma, learned Additional Government
Advocate for the State and perused the judgment
and order passed by learned trial court as also
the lower court record.

3. As per the prosecution case, on
22.05.2007, a First Information Report was
lodged at 9.30 A.M. against four persons
namely, Brijesh Kaushal (husband of the
deceased), Smt. Nirmala (mother in law of the
deceased), Ghanshayam Kaushal (father-in-law
11 All. Brijesh Kaushal & Anr. Vs. State of U.P.
829
of
the
deceased)
and
Rajesh
Kaushal
(devar/brother-in-law of the deceased) under
Sections 302/34, 498 A IPC and 3/4 of the
Dowry Prohibition Act, 1961 stating therein that
the marriage of the daughter of the complainant
namely Manju (hereinafter referred to as 'the
deceased') was solemnized with Hindu customs
and rituals five years ago with Brjesh Kaushal
(appellant no. 1). At the time of marriage, as per
the capacity, the dowry was given. After the
marriage, the husband and in-laws of the
deceased used to harass mentally and physically
both for dowry demand, and the same was told
by the deceased repeatedly. On the fateful day
i.e. 22.05.2007 at 08.00 A.M. some unknown
persons called the complainant and informed
him that his daughter was set ablaze by pouring
kerosene oil and when he reached the
Community
Health
Centre,
Musafirkhana,
District Sultanpur, he saw his daughter lying on
the bed in the emergency ward and on asking,
she told that today morning at 8.00 A.M. she
was set to fire by her husband and mother in law
by pouring kerosene oil for dowry demand of
Rs. 20,000/-. The daughter has been referred to
Medical College at Lucknow. It has also been
disclosed that earlier also, case for dowry
demand was filed which was subsequently
compromised and his daughter returned to her
matrimonial house.

4. After investigation, charge-sheet was
filed against all four accused persons under
Sections 302/34, 498-A IPC and under Section
3/4 of the Dowry Prohibition Act, 1961.

5. The trial Court framed the charges
against the accused appellants under Sections
302/34, 498-A IPC and 3/4 of Dowry
Prohibition Act, 1961 and the same was denied
by the accused persons and asked for trial.

6. The prosecution, in order to bring home
the accusation against the appellants has produced
two witnesses of fact, namely Ram Chandar (the
complainant)/father of the deceased as PW-1,
Kumari Sanju Kaushal (younger sister of the
deceased) as PW-2. The prosecution has further
produced as many as six formal witnesses viz
Suresh Kumar Dubey as PW-3, Dr. Rajendra
Prasad as PW-4, Nagendra Singh, the SubInspector as PW-5, Sheetla Prasad Pandey as PW6, Rajeev Kumar Shukla as PW-7 and Dr. Suresh
Chandra as PW-8 and Shri Madan Mohan Verma
has also produced as CW-1.

7. As documentary evidence, the prosecution
has proved the Nakal Tehrir as Ext. ka-1, Chik FIR
as Ext. ka 2, Kayami G.D. as Ext. ka-3, Dying
Declaration as Ext. ka- 4, Chargesheet as Ext. ka5, Site plan as Ext. ka- 6, Fard as Ext. ka- 7,
Panchanama as Ext. ka- 8, C.M.O Report as Ext.
ka-9, Photonash as Ext. ka- 10, Form- 13 as Ext.
ka- 11, Dead Memo as Ext. ka- 12, Photo G.D. as
Ext. ka- 13, Post Mortem Report as Ext. ka- 14.

8. On the other hand, the appellants in their
defence examined Shiv Shankar Agrahari as DW1, Ram Nath alias Natthu as DW-2, Surendra
Pratap Tripathi as DW-3.

9. The statement of the accused persons were
recorded under Section 313 of Code of Criminal
Procedure (hereinafter referred to as, 'the
Cr.P.C.'),
wherein,
they
had
denied
the
commission of crime stating therein that the first
information report was ante timed and they took
her to the hospital for treatment. The charge-sheet
has wrongly been filed and the appellant no. 1 has
further stated that he was at his shop, downstairs
and the mother was not at home and had gone to
the temple and after hearing hue and cry, he ran
immediately and saw that the clothes of deceased
caught fire from the stove and she was burning.
After receiving the burn injuries, the deceased had
never said anything.

10. The trial court has not accepted the
case of the prosecution on two aspects. Firstly,
the marriage was solemnized five years ago. As
830 INDIAN LAW REPORTS ALLAHABAD SERIES
per the evidence before the trial court, a clear
finding has been given that marriage was
solemnized more than seven years ago. Hence,
no offence is made out against the accused
persons/appellants under Section 498-A r/w
Section 304 IPC and Section 3/4 of the Dowry
Prohibition Act, 1961 and secondly, the
statement that previously also, a case was filed
but the same was compromised. On that the trial
court had given a specific finding that it was an
old matter and after the compromise the
deceased was living in her matrimonial house
since long. The father-in-law and the Dewar
were acquitted, whereas the husband i.e.
appellant no. 1 and the mother-in-law were
convicted under Section 302 r/w Section 34 IPC
and sentenced, as above on the basis the dying
declaration of the deceased before the Naib
Tehsildar, wherein she had said that her
husband/appellant no. 1 put her on fire on the
instigation or instructions of his mother and at
the time of the incident, the husband and
mother-in-law were present.

11. Learned counsel for the appellants has
submitted that the second dying declaration,
which has been relied upon by the trial court
without looking to the alleged first non-judicial
dying declaration made by the deceased-Manju
before her father/complainant (P.W.1), there is
variance in the first dying declaration given by
the deceased-Manju when compared to the
deposition during cross-examination of her
father and it contradicts with the dying
declaration given to the Naib Tehsildar. In the
case of non-judicial dying declaration, there
should be no variance in the statements of the
witness and the exact words allegedly used by
the deceased. In the present case, as according to
the narration in the first information report
lodged by PW.1, the deceased told him that due
to non-fulfillment of dowry demand of Rs.
20,000/-, my husband and mother-in-law put me
on fire by pouring kerosene oil at 08.00 AM,
whereas in the examination in chief, PW.1 has
stated that his daughter-Manju told him that due
to the demand of Rs. 20,000/-, as dowry, my
husband, my mother-in-law, father-in-law and
Dewar poured kerosene oil and put me on fire at
around 07.30 AM. So, this variance in the
statements of PW.1 with regard to the exact
words allegedly used by the deceased had
become suspicious. 12. In the first dying
declaration, there is a mention as stated by the
P.W. 1 in his statement that the deceased has
told as under:-

"vLirky ogka ij ,ejtsUlh ds csM ij esjh
yMdh tyh voLFkk esa ekStwn djkg jgh Fkh ftlls
iwNus ij mlus crk;k fd eq>ls ngst ds 20]000@&
#i;k de nsus ds dkj.k esjs ifr o lkl us feVVh dk
rsy Mkydj djhc lqcg 8 cts tyk fn;kA"

13. Further, in the cross-examination,
PW.1 has stated as under:-

"fnukad 22 ebZ dks lcsjs 8 cts vKkr
vkneh us eq>s VsyhQksu fd;k o crk;k fd eatw ds
lkl] llqj o nsoj o ifr eatw ds Åij feV~Vh dk rsy
Mkydj tyk fn;sA eSa eqlkfQj[kkuk vLirky vk;k rks
ns[kk fd yM+dh thfor Fkh vkSj djkg jgh FkhA eaS eatw
ls iwNk fd dSls gqvk\ rks eatw us crk;k fd 20 gtkj
#i;s ngst esa u nsus ds dkj.k esjs ifr] esjh lkl]
llqj o nsoj us esjs Åij feV~Vh dk rsy Mkydj eq>s
tyk fn;kA lqcg 7&1@2 cts eq>s tyk fn;kA"

14. The Apex Court in the case of
Darshana Devi vs. State of Punjab [(1996) SCC
(Cri) 38], has held as under:-

"There is variance in the statements of
the two witnesses with regard to the exact words
allegedly used by the deceased. According to
PW 2, the deceased had stated that the appellant
had sprinkled kerosene on him when he was
lying asleep and had burnt him, while Lachhmi
Devi, PW 1 did not attribute any such statement
to the deceased. PW 1 reiterated in her crossexamination "all that Madan Lal told me was
11 All. Brijesh Kaushal & Anr. Vs. State of U.P.
831
that he had been burnt by Darshana Devi by
sprinkling koresene" Even though an oral dying
declaration can form basis of conviction in a
given case, but such a dying declaration has to
be trustworthy and free from every blemish and
inspire confidence. The reproduction of the
exact words of the oral declaration in such cases
is very important. The difference in the exact
words of the declaration in this case detract
materially from the value of the oral dying
declaration." (emphasis laid by us)"

15. As per the above law settled by the
Apex Court in the case of oral dying declaration,
the words should be exact, used allegedly by the
deceased, but such a dying declaration must be
free from every blemish and inspire confidence,
whereas in the present case, due to the variance
about the time, which can be ignored but
involvement of accused persons is major. On the
contrary, learned trial court has not made any
observation in its judgment impugned in the
present criminal appeal on this aspect of the
matter, regarding the alleged oral dying
declaration made by the deceased to her fatherPW.1.

16. The deceased, in her second dying
declaration before the Naib Tehsildar has stated,
as under:-

"iz'u& dSls vkx yxh\

mRrj& esjs ifr us esjs Åij feVVh dk rsy
Mkydj ekfpl ls vkx yxk nhA esjs ifr u'kk djrs gS
efQZ;k ihrs gS ekW ds dgus ij tyk;sA eSa ngst ,DV
dk igys eqdnek yM+ pqdh gw¡aA eSa eqdnes esa le>kSrk
dj yh Fkh] blds ckn ifr ds lkFk jgus yxh FkhA esjs
tyus ds le; esjs ifr o lkl FkhA ,d vkneh us eq>s
cpk;k eSa mldks igpkurh ughaA "

17. In the above two dying declarations
there is variance and hence are not reliable. In
the first dying declaration, the cause of putting
her ablaze was demand of Rs. 20,000/- as dowry
and all the four persons were made accused in
the dying declaration whereas in the second
dying declaration before the Naib Tehsildar,
there is no whisper of demand of dowry due to
which she was put to fire and out of four, the
names of only two accused persons were
mentioned and in support of his submission,
learned counsel for the appellants has relied
upon various judgments.

18. The Apex Court in paragraph 14 in the
case of P. Mani vs. State of Tamil Nadu
reported in [(2006) 2 SCC (Cri) 36], has held as
under:-

"14. Indisputably conviction can be
recorded on the basis of the dying declaration
alone but therefor the same must be wholly
reliable. In a case where suspicion can be raised
as regards the correctness of the dying
declaration, the court before convicting an
accused on the basis thereof would look for
some corroborative evidence. Suspicion, it is
trite, is no substitute for proof. If evidence
brought on record suggests that such dying
declaration does not reveal the entire truth, it
may be considered only as a piece of evidence in
which event conviction may not be rested only
on the basis thereof. The question as to whether
a dying declaration is of impeccable character
would depend upon several factors; physical
and mental condition of the deceased is one of
them. In this case the circumstances which have
been brought on record clearly point out that
what might have been stated in the dying
declaration may not be correct. If the deceased
had been nurturing a grudge against her
husband for a long time, she while committing
suicide herself may try to implicate him so as to
make his life miserable. In the present case
where the appellant has been charged under
Section 302 of the Penal Code, the presumption
in terms of Section 113-A of the Evidence Act is
not available. In the absence of such a
presumption, the conviction and sentence of the
accused must be based on cogent and reliable
832 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence brought on record by the prosecution.
In this case, we find that the evidences are not
such which point out only to the guilt of the
accused."

19. In paragraph no. 3, the Apex Court in
the case of State of Rajasthan vs. Prithvi Raj
reported in [(1995) SCC (Cri) 934], has held as
under:-

"3. To satisfy ourselves we have
carefully gone through the evidence and also the
original records. From the above resume it can
be seen that the dying declarations Ex. P-7 and
Ex. P-11 recorded by the Assistant SubInspector and the Magistrate are of great
importance in this case. It is held in a number of
cases that if there are more than one dying
declarations, the court has to see whether they
are consistent in material particulars. In the
instant case we have to examine the contents of
the dying declaration particularly in the
background of the plea taken by the accused. In
Ex. P-7 the deceased stated that her husband
used to give her threats and that he would burn
her to death and that she returned from her
father's house and was sitting in the kotha when
her husband asked her to go out. Thereafter her
husband poured kerosene on her and went out
into the aangan (courtyard). He brought a
matchstick and set fire. Her in-laws were sitting
near the outgate and doing stitching work. In Ex
P-11 she stated that she was sitting in the
aangan and not in the kotha and that her
husband set fire to her clothes and on making
hue and cry, people gathered and her husband
and her in-laws carried her to the hospital."

20. In paragraph 7, the Apex Court in the
case of Meera vs. State of Rajasthan reported in
[(2004) SCC (Cri) Supp. 16], has held as under:-

"7. The second dying declaration on
which the prosecution relied is said to have been
made by the deceased when she was taken on a
'tonga' to her parents' house at Purada. Such a
statement was allegedly made by her to her
mother Chhogi (PW-10) in the presence of Sadia
(PW-2) and Uma (PW-3). Chhogi (PW-10), the
mother of the deceased, stated that on the date
of occurrence the deceased had been brought on
a 'tonga' to her village in the evening. Deva was
also with her. Her daughter was brought down
from the 'tonga' and at that time she was saying
that her mother-in-law made her drink a rat
poison and this was stated in the presence of
PW-2 Sadia and PW-3 Uma. Immediately the
Sarpanch was contacted who gave them a letter
with which they left for the hospital at
Sumerpur. At the hospital her daughter was
alive for about an hour."

21. In the case of Ajay and Ors. vs. State
of U.P. reported in [(2020) 2 JIC 537 (All.)],
this Court in paragraph 28 has observed, as
under:-

"28. In Heeralal V/S State of Madhya
Pradesh, 2009 LawSuit (SC) 394, the Apex
Court has held as hereunder :

"that being so, in view of the apparent
discrepancies in the two dying declarations it
would be unsafe to convict the appellant."

In Gopal V/S State of Madhya
Pradesh, 2009 LawSuit (SC) 484, the Apex
Court has held as hereunder :

"Law relating to appreciation of
evidence in the form of more than one dying
declaration is well settled. Accordingly, it is not
the plurality of the dying declarations but the
reliability thereof that adds weight to the
prosecution case. If a dying declaration is found
to be voluntary, reliable and made in fit mental
condition, it can be relied upon without any
corroboration.
The
statement
should
be
consistent throughout. If the deceased had
several opportunities of making such dying
declarations, that is to say, if there are more
than one dying declaration they should be
consistent. See: Kundula Bala Subrahmanyam
11 All. Brijesh Kaushal & Anr. Vs. State of U.P.
833
vs. State of A.P. 1993 2 SCC 684. However, if
some inconsistencies are noticed between one
dying declaration and the other, the court has to
examine the nature of the inconsistencies,
namely, whether they are material or not. While
scrutinizing the contents of various dying
declaration, in such a situation, the court has to
examine the same in the light of the various
surrounding facts and circumstances."

22. On the other hand, learned AGA has
submitted that there is no variance in the two
dying declarations of the deceased. The learned
trial court, while acquitting the father-in-law and
the brother-in-law and convicting only husband
and mother in law brings end to the plea of
variance raised by the appellant. Only those
persons have been punished or convicted against
whom the material was found in the dying
declaration. It is further submitted that whatever
the consistencies, the benefit of the same was
given to the persons who were entitled for the
same and in support of his statement, learned
AGA has relied upon the judgment of the Apex
Court reported in [2021 2 SCC (Cri) 539]:
[(2021) 5 SCC 222] Nagabhushan Vs. State of
Karnataka.

23. The position which emerges out after
hearing the submissions advanced by the learned
counsel for the respective parties and going
through the record as also the judgment of the
Apex Court, the position which emerges out in
the present case is that it is an admitted settled
legal proposition of law that a conviction can be
awarded on the basis of dying declaration alone,
therefore, the same must be wholly reliable and
for determining the correctness of the dying
declaration, it must be looked with some
corroborative evidences. In the present case,
there are two dying declaration of the deceased
and the variance has already been discussed
above, the said variance in the two dying
declaration of the deceased.

24. From the records, it is revealed that
the dying declaration recorded by the Naib
Tehsildar on which the time mentioned is 9.43
A.M. whereas time of lodging of the First
Information Report is 9.30 A.M. so within 13
minutes, the Naib Tehsildar was there for
recording the dying declaration of the
deceased, which is highly improbable. Apart
from that, the learned trial court on the
application of the prosecution side under
Section 311 Cr.P.C. has passed an order on
21.10.2009 summoning Shri Madan Mohan
Verma, Naib Tehsildar as CW-1. The Naib
Tehsildar CW-1 in his statement before the
Court has stated that he had received the
information of recording the dying declaration
at Musafir Khana at 9.30 A.M. and it took 2030 minutes to reach the office of SDM at
Musafir Khana from Jagdishpur and 15-20
minutes in obtaining the orders from the SDM
and thereafter he might had taken some time
to reach to the hosptial for recording the dying
declaration. The time, as stated by the Naib
Tehsildar
makes
the
dying
declaraion
suspicious that it was recorded at 9.43 AM. It
is also not disclosed by CW-1 that, who had
informed him at 9.30 AM at Jagdishpur asking
him to reach Musafirkhana for recording the
dying declaration. There might be three
sources, which are as follows:-

1. The Police, who lodged the FIR.

2. The doctor, who attended, the
deceased.

3. Any higher officer to whom, the
special report would have been forwarded under
Section 157 of the Cr.P.C.

25. Except the above, no other source is
there from which the CW-1 would have received
the information at the earliest whereas the
Investigating Officer and the doctor in their
testimony before the Court have stated that they
had not informed the Naib Tehsildar.
834 INDIAN LAW REPORTS ALLAHABAD SERIES

26. There is a procedure for submitting the
dying declaration report before the Court. It
must be in the sealed envelope. It could only be
opened by the order of the Court whereas from
the record it is revealed that in the endorsement,
it has been mentioned that the dying declaration
is in the envelope. There is no order on the
record passed by the Court for opening the same.

27. It is the requirement of the law that
before recording the dying declaration there
must be a certificate by a doctor that the injured
is physically and mentally stable and fit to give
any statement. In the present case, the dying
declaration recorded by the Naib Tehsildar and
at the top of the same, the doctor, who was
attending the deceased, had certified that she
was mentally fit to depose statement but at the
time of testimony given by the doctor-PW-4
before the court had stated that the deceased was
mentally very much disturbed due to her burn
injuries and she was in pain meaning hereby, her
mental condition was not stable and not fit for
deposing any statement on the basis of which,
the appellants were convicted and sentenced to
life imprisonment.

28. In these circumstances, if seen all the
things collectively, makes the dying declaration
suspicious, whereas the dying declaration is to
be trustworthy and free from every blemish and
inspire confidence, which is failing in the
present case, as discussed above and hence, the
appellants cannot be convicted and sentenced
solely relying upon the said dying declaration.

29. The learned trial court, while giving
finding on the basis of the statement of CW.1
has mentioned time totally against the time
mentioned by the CW.1, in his statement. The
time mentioned by the CW.1 in his statement
has already been mentioned above, whereas at
the time of giving finding, the learned trial court
has noted that the CW.1 has obtained the order
from the SDM at 09.30 AM and in obtaining the
order, it took 15-20 minutes and took 10-15
minutes to reach Musafirkhana from Jagdishpur,
which is totally against the time mentioned by
CW.1, in his statement, as has already been
mentioned in para-12 of the judgment.

30. As the incident had occurred in the
house of the appellants, then as per Section 106
of the Evidence Act, 1872 (hereinafter referred
to as ''the Act of 1872'), the burden shifts on the
defence to prove his innocence. It is no doubt
that the initial burden is upon the prosecution,
but as per Section 106 of the Act of 1872, the
corresponding burden also lies upon the inmates
of the house. The Cr.P.C. provides not only the
procedure but also provides certain protection to
the accused persons by following certain
procedures i.e. after registration of the case,
production of the prosecuting witnesses and
evidences, the opportunity is to be given to the
accused persons under Section 313 Cr.P.C.
either
to
deny
or
to
accept
the
charges/allegations by examining or questioning
by the trial court; thereafter the second important
stage available with the accused is to produce
the defence witnesses and evidences, just to
prove their innocence and third most important
stage is opportunity to cross-examine the
prosecuting witnesses, just to bring the truth of
the prosecution story/allegations/charges.

31. Learned counsel for the appellant has
further submitted that the conduct is very
relevant for sentencing an accused. In the
present case the appellant while trying to save
the life of his wife i.e. Manju also got burn
injuries and thereafter they had taken her to the
Community Health Centre, Musafirkhana and
being then referred to the KGMU, Lucknow,
brought her to the KGMU in car but before
reaching the KGMU, the deceased succumbed to
her injuries.

32. In support of his submissions,
regarding conduct, the learned counsel for the
11 All. Brijesh Kaushal & Anr. Vs. State of U.P.
835
appellants has relied upon various judgments of
the Apex Court.

33. In the case of P. Mani vs. State of
Tamil Nadu reported in [(2006) 2 SCC (Cri)
36] , the Apex Court in paragraph 11 has held as
under:-

"11. The High Court furthermore
commented upon the conduct of the appellant in
evading arrest from 4-10-1998 to 21-10-1998.
The investigating officer did not say so. He did
not place any material to show that the
appellant had been absconding during the said
period. He furthermore did not place any
material on record that the appellant could not
be arrested despite attempts having been made
therefor. Why despite the fact, the appellant who
had been shown to be an accused in the first
information report recorded by himself was not
arrested is a matter which was required to be
explained by the investigating officer. He
admittedly visited the place of occurrence and
seized
certain
material
objects.
The
investigating officer did not say that he made
any attempt to arrest the appellant or for that
matter he had been evading the same. He also
failed and/or neglected to make any statement or
bring on record any material to show as to what
attempts had been made by him to arrest the
appellant. No evidence furthermore has been
brought by the prosecution to show as to since
when the appellant made himself unavailable for
arrest and/or was absconding."

34. In the case of Ram Das Vs. State of
Maharashtra reported in [(1977) SCC (Cri)
254], the Apex Court in paragraphs 9 & 10, has
held as under:-

"9. The next circumstance on which
great reliance was placed by the High Court
was the fact that the accused immediately took
the deceased to the Civil Hospital which,
according to the High Court, was meant merely
to cloak his guilt. We are indeed surprised that
the High Court should have taken such a
perverse view of the matter. If the accused had
himself administered the poison to Shantabai he
would be the last person to take her to the
hospital and thereby take the chance of the
deceased
being
cured
or
of
regaining
consciousness, in which case the deceased
would have implicated the appellant. The
conduct of the accused in rushing her to the
hospital is more consistent with his innocence
rather than with his guilt. The High Court
instead of taking the circumstance as proving
the good faith and bona fides of the accused
drew the opposite inference. Furthermore,
assuming that the High Court was right and that
the accused went to the hospital merely to cloak
his guilt this may be one inference possible, but
the other inference which is equally reasonable
was that the accused having found that his wife
had taken poison and attempted to commit
suicide took her to the hospital immediately so
that she could be given proper medical aid and
her life may be saved. In this state of the
evidence, the High Court violated the rule of
appreciation of circumstantial evidence in
accepting only that inference which went against
the accused and not entertaining the inference
which proved his innocence and which, in our
opinion, was more probable than the other.

10. It was suggested by the High Court
that the accused gave no information to the
father of the deceased. In view of the short time
at the disposal of the appellant, there was hardly
any
opportunity
to
inform
the
parents.
Moreover, as the appellant made no secret of the
fact that his wife had died and the body was in
fact handed over to the doctor for post-mortem
and then cremated, it cannot be said that the
appellant maintained any secrecy in the matter."

35. The Apex Court in the case of State of
Rajasthan Vs. Prithvi Raj reported in [(1995)
SCC (Cri) 934], has held in paragraph 5, which
is quoted hereinbelow:-
836 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. It is true, as contended by the
learned counsel, that the manner of appreciation
of the evidence in respect of the dying declaration
is not altogether sound. But the High Court has
rightly held that the immediate conduct of the
accused and his parents in rushing the deceased to
the hospital immediately by arranging a jeep is
quite consistent with their being innocent.
However, we find that the overall reasoning of the
High Court in giving the benefit of doubt to the
accused cannot be said to be wholly unsound and
does not stand judicial scrutiny. This is an appeal
against acquittal and that too in respect of an
offence said to have been committed in the year
1978. Since this is a bride burning case and having
regard to the nature of the evidence that can be
available in such cases, we have gone through the
entire records including the original records.
However, having given a careful consideration to
the whole matter we are not wholly satisfied that
this is a case where interference should necessarily
be called for. Accordingly the appeal is
dismissed."

36. On the contrary, the conduct of the
complainant/father of the deceased who after
lodging the FIR, at 9.30 AM reached KGMU,
Lucknow at 7.00 PM having full trust and faith
that his daughter will get treatment properly
under the supervision and care of her husband
and in-laws.

37. On the other hand, the conduct of
PW.1, since the very inception, the prosecution
was trying to falsely implicate the appellants. At
the time of lodging of the first information
report, a false fact was disclosed that the
marriage was solemnized five years ago, just to
falsely implicate the whole family under Section
498-A r/w Section 304 IPC, as they knew that
their daughter was not murdered or killed by the
appellants and it was very difficult for the
prosecution to prove the offence against the
appellants under Section 302 IPC. The conduct
is also very strange that even after lodging of the
first information report at 09.30 AM, the
father/PW.1 reached Lucknow at around 07.00
PM in the evening as admitted in the crossexamination.

38. On the other hand, learned AGA has
submitted that the conduct of the appellants is
suspicious and doubtful as he was sitting in his
shop down stairs and the deceased was ablazed
at the first floor and got 90 per cent burn injuries
meaning hereby, the appellants must have
awaited that she should burnt fully and in
support of his submissions relied upon the
judgment in the case of Nagabhushan (supra),
paragraphs
9,
10,11
&
12
are
quoted
hereinbelow, for ready reference:-

9. Now so far as the merits of the
appeal are concerned, it cannot be disputed that
in the present case there are two dying
declarations, (i) Ext. P-5 and (ii) Ext. D-2. The
High Court in the impugned judgment and order
[State of Karnataka v. Nagabhushan, 2019 SCC
OnLine Kar 3093] has given cogent reasons to
rely upon and believe the second dying
declaration -- Ext. P-5. The High Court has also
taken note of the fact that the second dying
declaration is reliable and the version in the
second dying declaration is supported by the
circumstances, namely, the injuries sustained by
the deceased; no stove was found at the place of
occurrence. The High Court has also taken note
of the fact that in the second dying declaration,
the deceased has explained her first statement
that it was a case of accident and she
categorically stated in the second dying
declaration that at the time when she gave first
statement that it was a case of accident, she was
given threats by the appellant herein -- original
Accused 1 that he will kill her children also. She
also stated in the second dying declaration that
after her parents came, she got the courage to
tell the truth. Therefore, as such, the High Court
rightly believed the second dying declaration --
Ext. P-5.
11 All. Brijesh Kaushal & Anr. Vs. State of U.P.
837

10. At this stage, the decisions of this
Court in Nallam Veera Stayanandam v. High
Court of A.P. [Nallam Veera Stayanandam v.
High Court of A.P., (2004) 10 SCC 769 : 2005
SCC (Cri) 606] , Kashmira Devi v. State of
Uttarakhand [Kashmira Devi v. State of
Uttarakhand, (2020) 11 SCC 343 : (2020) 4
SCC (Cri) 269] and Ashabai v. State of
Maharashtra [Ashabai v. State of Maharashtra,
(2013) 2 SCC 224 : (2013) 1 SCC (Cri) 943] are
required to be referred to. In the aforesaid
decisions, this Court had an occasion to
consider the cases where there are multiple
dying declarations. In the aforesaid decisions, it
is held that each dying declaration has to be
considered independently on its own merit as to
its evidentiary value and one cannot be rejected
because of the contents of the other. It is also
held that the court has to consider each of them
in its correct perspective and satisfy itself which
one of them reflects the true state of affairs.
When there are multiple dying declarations,
each dying declaration has to be separately
assessed and evaluated on its own merits.

11. Applying the law laid down by this
Court in the aforesaid decisions to the facts of
the case on hand, and on evaluation of both the
dying
declarations
independently,
dying
declaration recorded as Ext. P-5 reflects the
true state of affairs and the contents are
supported by the medical evidence and the
injuries sustained by the deceased. The plea put
forth by the defence that it was a case of an
accident and while pouring the kerosene from
kerosene can to the bottle, the same had fallen
on the clothes placed on the ground and when
the deceased tried to remove the clothes from
that place, the candle fell on the ground, as a
result, her clothes caught fire and she sustained
burn injuries is disbelieved by the High Court
considering the circumstances noted by the High
Court that the deceased sustained injuries on the
face, chest and back and to the upper limbs. The
main injuries are found on the upper limbs of
the body. Therefore, as rightly observed by the
High Court, the aforesaid injuries can be
possible when the kerosene is poured on the
deceased. According to the defence and as per
the evidence of DW 1/A-1, while putting the
kerosene into the stove, accidentally the
kerosene had fallen on the ground and also on
her clothes, and thereafter when the candle fell
on the ground, the same had come in contact
with her clothes and kerosene. If that is the case,
there would have been injuries to her feet also.
However, no burn injuries are found on her feet.
No stove was found at the place of occurrence.
Therefore, the defence came out with a false
case of accidental fire, which, as such, is not
supported by any other reliable evidence. On the
contrary, this evidence speaks otherwise.
Therefore, when A-1 came with a false defence
and
the
dying
declaration
Ext.
P-5
is
corroborated
by
other
surrounding
circumstances
and
evidence
and
after
independent evaluation of Ext. P-5 and Ext. D-2,
when the High Court has found that Ext. P-5 is
reliable and inspiring confidence and thereafter
when the High Court has convicted the accused,
it cannot be said that the High Court has
committed any error.

12. Now so far as the submission on
behalf of the accused that even thereafter he
tried to extinguish the fire and he also sustained
injuries and therefore it cannot be said that the
appellant has committed an offence punishable
under Section 302 IPC is concerned, at the
outset, it is required to be noted that in the
present case the prosecution is successful in
proving that the appellant-accused herein
poured kerosene on the deceased. As per dying
declaration Ext. P-5, it has been proved that the
deceased was set ablaze by pouring kerosene on
her. The act of the accused falls in clause
fourthly of Section 300 IPC. It emerges from the
evidence on record that the accused poured
kerosene on the deceased and not only poured
kerosene but also set her ablaze by the
matchstick. Merely because thereafter A-1 might
have tried to extinguish the fire, that will not
838 INDIAN LAW REPORTS ALLAHABAD SERIES
bring the case out of clause fourthly of Section
300 IPC."

38. After hearing the learned counsel for
the respective parties, going through the records
and judgments of the Apex Court, the position
which emerges out is that the conduct of the
appellants is very relevant as they took the
injured to the local hospital immediately and
thereafter came to the KGMU, Lucknow as
referred by the Community Health Centre,
Musafirkhana to save her life and if they would
have committed the offence, they would have
not tried to save the life of the injured-Manju. If
the offence was committed by the appellants
they would have tried hard to cause her death
and not taken her to the hospital or in the better
hosptial referred by the Community Health
Centre, Musafirkhana. The appellant no. 1 also
got burn injuries which was examined after his
arrest while he was being sent to the jail and as
per the medical report, there burn injuries are of
5-7 days old i.e. corroborating with the date of
incident, so the immediate action and conduct of
the appellants has proved the innocence of the
appellants.

39. The judgment relied upon by the
learned AGA is not applicable in the present
case for the reasons that the fact of this case are
different as of the case relied upon by learned
AGA. The fact of the case relied is while giving
second dying declaration the deceased had
categorically explained that her first statement
was given under the threat given by the
appellant to kill her children. Secondly, the
dying declaration was corroborating with the
other witnesses. The appellants did not take the
injured to the hospital and there were other
evidences adduced by the prosecution which
proved the case against the appellants beyond
reasonable doubt wheras in the present case, no
such fact is in existence. It is nowhere stated by
the deceased that she was threatened to depose
certain statements by the appellants. Their
conduct for trying to save the life and to make
vulnerable themselves for false implication in
the case if the injured be cured and except the
dying declaration, nothing was on the record.

40. As per the settled law that if there is no
break in chain in the prosecution story, then as
per Section 106 of the Act, 1872, the burden
shifts on the defence to prove his innocence. In
case the occurrence of the incident inside the
house, the initial burden is upon the prosecution
but as per Section 106 of the Act, 1872, the
corresponding burden also lies upon the inmates
of the house.

41.