# Chintu @ Kuldeep v. State of U.P

- **Citation:** (2023) 6 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Criminal Appeal No. 2097 of 2019
- **Bench:** Ashwani Kumar Mishra, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chintu-kuldeep-v-state-of-u-p-50464
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 376, 386, 506 & 302 -
Punishment for murder - Appeal against
conviction - Life imprisonment - Relevancy
6 All. Chintu @ Kuldeep Vs. State of U.P.
333
of Dying declaration - Code of Criminal
Procedure, 1973 - Section 161, 207 & 313
- Indian Evidence Act, 1872 - Section 32 -
Appellants held guilty of offence of rape,
attempt to rape, murder and set the victim
on fire - During treatment she died -
Contention by appellants , delay of 48
hours
in
registration
of
F.I.R.,
not
explained by prosecution - no eye witness
- Neither it was a case of prosecution nor
of defence that victim got accidental fire -
Two dying declarations recorded - she
narrated incident and commissioning of
offence to her husband, PW-1 and to S.I.,
PW-3 who recorded her St.ment in
hospital - From testimony of PW-1 and
DW-1, it showed that PW-1 was unreliable
witness - PW-1 St.d that he had brought
victim to hospital, whereas MLC reflects
contrary to that - PW-1 was not made a
witness to St.ment recorded by PW-3 in
hospital - Presence of PW-1 and PW-3 in
hospital was doubtful - St.ment of PW-3
has
no
relevancy,
not
proved
by
prosecution that he was asked by senior
officer to record St.ment of victim in
hospital
-
No
animosity
between
appellants
and
victim
except
sole
testimony of complainant - As per doctor,
deceased received burn injuries to the
extent of 83%, therefore she was not in
position
to
give
St.ment
-
Several
loopholes in procedure adopted while
recording dying declaration. (Para 4, 31,
34 to 71)

Criminal Appeals allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,925 of 68,071. This is a partial read: ask again with offset=39925 for what follows._

332 INDIAN LAW REPORTS ALLAHABAD SERIES

"Sexual violence apart from
being a dehumanizing act is an unlawful
intrusion of the right to privacy and
sanctity of a female. It is a serious blow to
her supreme honour and offends her self
esteem and dignity. It degrades and
humiliates the victim and where the victim
is a helpless innocent child, it leaves
behind a traumatic experience. The Courts
are, therefore, expected to deal with the
cases of sexual crime against women with
utmost sensitivity. Such cases need to be
dealt with sternly and severely."

39. So far as the last contention of the
learned counsel for the applicant that
medical examination of the applicant was
not conducted as per Section 53A Cr.P.C,
is concerned, it is to be noted that since the
accused was arrested on 08.9.2022, i.e.
after fifteen days of the incident, therefore,
the investigating officer did not think it
necessary to get him examined under
Section 53A Cr.P.C.

40. The Court must keep in mind
while appreciating the evidence of the
prosecutrix the values prevailing in the
country, particularly in rural India. It would
be unusual for a woman to come up with a
false story of being a victim of sexual
assault so as to implicate an innocent
person. In our country, a woman, victim of
sexual aggression, would rather suffer
silently than to falsely implicate somebody.
Any statement of a rape victim is an
extremely humiliating experience for a
woman and until she is a victim of sex
crime, she would not blame anyone but the
real culprit.

41. Considering the overall facts and
circumstances of the case as well as
keeping in view the submissions advanced
on behalf of parties, gravity of offence, role
assigned to applicant and severity of
punishment, I do not find any good ground
to release the applicant on bail.

42. Accordingly, the bail application
is rejected at this stage.

43. It is clarified observations made
herein above are limited to the extent of
determination of this bail application and
will in no way be construed as an
expression on the merits of the case. The
trial court shall be absolutely free to arrive
at its independent conclusions on the basis
of evidence to be adduced by the parties.
----------
(2023) 6 ILRA 332
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2097 of 2019
AND
Criminal Appeal No. 1794 of 2019

Chintu @ Kuldeep ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Surya Pratap Singh Parmar, Sri Ajay
Kumar Pandey, Sri Sheshadri Trivedi, Sri
Shyam Bihari Tripathi, Sri Suresh Chandra
Yadav, Sri Vipin Kumar, Sri Satish Trivedi
(Sr. Advocate)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 376, 386, 506 & 302 -
Punishment for murder - Appeal against
conviction - Life imprisonment - Relevancy
6 All. Chintu @ Kuldeep Vs. State of U.P.
333
of Dying declaration - Code of Criminal
Procedure, 1973 - Section 161, 207 & 313
- Indian Evidence Act, 1872 - Section 32 -
Appellants held guilty of offence of rape,
attempt to rape, murder and set the victim
on fire - During treatment she died -
Contention by appellants , delay of 48
hours
in
registration
of
F.I.R.,
not
explained by prosecution - no eye witness
- Neither it was a case of prosecution nor
of defence that victim got accidental fire -
Two dying declarations recorded - she
narrated incident and commissioning of
offence to her husband, PW-1 and to S.I.,
PW-3 who recorded her St.ment in
hospital - From testimony of PW-1 and
DW-1, it showed that PW-1 was unreliable
witness - PW-1 St.d that he had brought
victim to hospital, whereas MLC reflects
contrary to that - PW-1 was not made a
witness to St.ment recorded by PW-3 in
hospital - Presence of PW-1 and PW-3 in
hospital was doubtful - St.ment of PW-3
has
no
relevancy,
not
proved
by
prosecution that he was asked by senior
officer to record St.ment of victim in
hospital
-
No
animosity
between
appellants
and
victim
except
sole
testimony of complainant - As per doctor,
deceased received burn injuries to the
extent of 83%, therefore she was not in
position
to
give
St.ment
-
Several
loopholes in procedure adopted while
recording dying declaration. (Para 4, 31,
34 to 71)

Criminal Appeals allowed. (E-13)

List of Cases cited:

1. Dalip Singh & ors. Vs St. of Pun., AIR (1979)
SC 1173

2. Nallapati Sivaiah Vs SubDivisional Officer,
Guntur, (2007) 15 SCC 465

3. Arvind Singh Vs St. of Bihar, (2001) 6 SCC 407

4. Arun Bhanudas Pawar Vs St. of Mah., (2008)
11 SCC 232

5. Poonam Bai Vs St. of Chhattisgarh, (2019) 6
SCC 145
6. Kundula Bala Subrahmanyam & anr. Vs St. of
Andhra Pradesh, (1993) 2 SCC 684

7. Sudhakar Vs St. of M. P., (2012) 7 SCC 569

8. Paniben (Smt.) Vs St. of Guj., (1992) 2 SCC
474

9. Lakhan Vs St. of M. P., (2010) 8 SCC 514

10. Amol Singh Vs St. of M. P., (2008) 5 SCC
468

11. Sher Singh & anr. Vs St. of Pun., (2008) 4
SCC 265

12. Mahendra Singh & ors. Vs St. of M. P.,
(2022) 7 SCC 157

(Delivered by Hon'ble Vinod Diwakar, J.)

1. We have heard Shri Satish Trivedi,
learned Senior Advocate assisted by Shri
Ajay Kumar Pandey, learned counsel for
the appellants, learned A.G.A. for the State
and perused the record.

2. These appeals have been filed against
the judgment and order dated 21.01.2019,
passed by learned Additional District and
Sessions Judge/Fast Track Court No.2, Hapur,
in Sessions Trial No.313 of 2016 (State vs.
Chintoo @ Kuldeep) and Sessions Trial No.314
of 2016 (State vs. Monti @ Ravindra), arising
out of Case Crime No.566 of 2015, under
Sections 452, 376, 386, 506, 302 I.P.C.,
registered at Police Station Pilakhua, District
Hapur, in which the trial court has convicted the
accused-appellant Chintoo @ Kuldeep under
Sections 452, 376, 386, 506 and 302 I.P.C. and
the accused-appellant Monti @ Ravindra under
Sections 452, 386, 506, 302, 376/511 I.P.C. The
appellants have been sentenced to life
imprisonment, besides other sentences in
respective offences, apart from fine.

3. The prosecution case, in brief, is as
under:
334 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The complainant is a proprietor of a
grocery shop in his village and had gone to
Pilakhua
to
purchase
groceries.
On
8.10.2015, after the complainant returned
from Pilakhua, District Hapur, U.P., at
around
07:15
in
the
evening,
the
complainant saw his wife on fire. She fell
in front of him. The complainant tried to
douse the fire and received burn injuries on
his feet and hand while dousing. After
hearing
the
rescue
call,
Pinku,
the
complainant's cousin, reached the place of
the incident and covered the complainant's
wife with the blanket and doused the fire.
The complainant's wife revealed to the
complainant that in his absence, Chintoo
and Monti, who lived beside them, came to
her house and demanded money by
extending a threat to his life. Chintoo
forcibly committed rape upon her, and
Monti attempted to commit rape. After that,
they poured kerosene oil on her, set her on
fire and fled away. The complainant further
revealed that Chintoo and Monti were
jealous of their family, and they used to
quarrel with her when she asked for the
payments of groceries that they had
purchased; Chintoo and his brother Praveen
had assaulted her few days before the
incident.

5. The complainant immediately took
his wife to G.T.B. Hospital, Delhi, for her
treatment; the wife succumbed to the
injuries and died on 15.10.2015.

6. The victim was admitted to G.T.B.
Hospital, Delhi, at 09:25 p.m. on 8.10.2015
by her husband, and after that, Dr. Sushil
prepared the MLC of the victim and
declared the victim "fit for the statement".
During this time, after receiving oral
instructions, S.I. Manish Bhati, posted at
Police Station G.T.B. Enclave, Delhi,
reached the hospital and recorded the
victim's statement, in which she stated that
her husband runs a grocery shop at his
home. About a month back, Chintoo's
family borrowed groceries from their shop.
Chintoo, Monti and Chintoo's brother
Praveen thrashed her husband when he
asked for the payment. Monti is a
friend/relative of Chintoo and stays at his
house. On 8.10.2015, her father-in-law had
gone out of the house, and her husband had
gone to buy goods for the shop. At around
07:00 p.m., Chintoo and Monti entered her
house and started demanding money from
her and extending threats to kill her
husband. They caught her and pushed her
down when she refused to give the money.
Chintoo committed rape upon her, and
Monti attempted to commit rape but could
not succeed. They again asked her for
money, and when she refused, they poured
kerosene oil on her, kept in the cupboard,
and set her on fire. Chintoo poured oil on
her, and Monti lit the fire with matchstick.
Her husband took her to G.T.B. Hospital,
Delhi, and her statement was recorded in
the presence of the Doctor.

7. On 10.10.2015 at 05:15 p.m.,
Rakesh, the victim's husband, presented a
written
complaint
at
Police
Station
Pilakhua, District Hapur. Based on the
written report, the F.I.R. was registered at
07:15 p.m., under Sections 452, 376, 307,
386, and 506 I.P.C. against the accused
persons, almost two days after the incident.
As there was an allegation of sexual
exploitation in the F.I.R., a Medical
Examination
Report
for
Sexual
Exploitation was secured on 11.10.2015 at
03:00 p.m. In the report, it is mentioned
that the victim suffered homicidal flame
burns at home on 8.10.2015. The patient
was intubated, which means she was on a
life-saving medical procedure, entirely
covered with dressings, 85-90% T.B.S.A.,
6 All. Chintu @ Kuldeep Vs. State of U.P.
335
the flame burns involving two degrees, and
superficial to deep burns on the entire body
was found except on the feet. After
performing the external
and internal
examination, Dr. Shalini Razdan opined
that "survivor being unconscious and
sexual violence can't be ruled out".

8. On 15.10.2015, the victim succumbed
to her injuries and was declared dead. The
post-mortem was conducted on 15.10.2015 at
01:00 p.m. Dr. Shalini Razdan conducted the
autopsy. The autopsy report mentioned;
alleged history of burns on 8.10.2015, after
which the patient expired on 15.10.2015 at
07:54 a.m. Ante-mortem flame burns were
found all over the body except for a patch of
skin over the front lower back, buttocks and
back of legs sole. The Doctor noticed no
injuries over the genitalia. The autopsy
surgeon determined the cause of death as
'septicaemia shock due to infected antemortem flame burns involving about eightythree percent of the total surface area.'

9.

The
police
conducted
the
investigation and recorded the statement under
Section 161 Cr.P.C. of Rakesh, Pintu, Titu,
Sanjiv, Dr. Shalini Razdan, S.I. Satpal Singh,
S.I. Manish Bhati, Constable Sanjay Kumar,
Constable Santosh, Inspector Avneesh Kumar
and Inspector Deepak Tyagi and after
collecting all materials including the site plan,
spot inspection report and medical papers of
the victim filed a charge-sheet on 15.12.2015,
under Sections 376, 452, 386, 506 and 302
I.P.C. against the accused-appellants. The
Chief Judicial Magistrate took cognizance of
the charge - sheet against the accusedappellants, complied with the requirements of
Section 207 Cr.P.C., and committed the case
to the Court of Sessions for trial.

10. The trial court framed separate
charges under Sections 452, 376, 386, 506
and 302 I.P.C. against the accusedappellants. The orders of charge dated
5.11.2015 were read out to the accused
persons, and the accused-appellants denied
the charges and claimed trial.

11. To prove its case, the prosecution
has produced the following evidence:

i.
F.I.R.
dated
10.10.2015,
Exhibited as Ka-8

ii.
Written
Report
dated
10.10.2015, Exhibited as Ka-1

iii. Statement of victim dated
8.10.2015, Exhibited as Ka-6

iv. Medical Examination Report
dated 11.10.2015

v. Injury Report dated 8.10.2015

vi. Post-mortem Report dated
15.10.2015, Exhibited as Ka-12

vii.
Death
Report
dated
15.10.2015, Exhibited as Ka-4

viii. F.S.L. Report dated 4.2.2017

ix.
Charge
sheet
dated
15.12.2015, Exhibited as Ka-11

12. In addition to the above
documentary evidence, the prosecution has
produced Rakesh (PW-1); Sanjiv Kumar
(PW-2); S.I. Manish Bhati (PW-3); A.S.I.
Satpal Singh (PW-4); Constable Sanjay
Kumar (PW-5); Inspector Avanish Kumar
(PW-6); Inspector Deepak Tyagi (PW-7),
and Dr. Shalini Razdan (PW-8) during the
trial.

13. Even though eleven prosecution
witnesses were arrayed in the charge sheet,
only eight witnesses were adduced by the
prosecution before the court below. It is
evident that the prosecution dropped Pinku,
an eyewitness of the F.I.R., by filing a
discharge application before the trial court,
and later on, he was produced as DW-1 by
the
defence/accused-appellants
besides
336 INDIAN LAW REPORTS ALLAHABAD SERIES
other defence witnesses. It is relevant to
note that Pinku is the witness of the fact,
who had doused the fire by putting a
blanket on the deceased and is also the
cousin of the complainant (PW-1), the
husband of the deceased.

14. In examination-in-chief, PW-1
reiterated the facts stated in the F.I.R. and
stated that he runs a grocery shop in his
village and had gone to Pilakhua to
purchase groceries. On 8.10.2015, after the
complainant returned from Pilakhua at
around
07:15
in
the
evening,
the
complainant saw his wife on fire, and she
fell in front of him. The complainant tried
to douse the fire and received burn injuries
on his feet and hand while dousing. After
hearing the rescue call, Pinku, the cousin of
the complainant, reached the place of the
incident and covered the victim with a
blanket. While the complainant was taking
his wife to Delhi for treatment, she
revealed that in his absence, Chintoo and
Monti, who lived beside them, entered into
their house and demanded money by
extending a threat to her life. Chintoo
forcibly committed rape upon her, and
Monti attempted to commit rape. After that,
they poured kerosene oil on her, set her on
fire and fled away. The complainant further
revealed that Chintoo and Monti were
jealous of their family, and they thrashed
her when she asked for the payments for
groceries that they had purchased. Chintoo
and his brother Praveen assaulted her few
days before the incident.

15. PW-1 further stated that he got
admitted his wife to the G.T.B. Hospital
and gave a written report to the police at
Police Station Pilakhua, District Hapur,
UP. A person outside the police station
scribed the report on his instruction, and he
read out the contents of the report to him,
and he had signed the written report outside
the police station. Thereafter, the F.I.R. was
registered against the accused-appellant.

16. In the cross-examination, PW-1
stated that when he returned home from
Pilakhua market, nobody except his wife
was present at his home. When he entered
the house, his wife fell before him. His
wife's whole body was on fire except her
feet. High flames were coming out from his
wife's body. At that time, his wife's voice
was coming out, again said when he
reached home, his wife was not crying.
When he shouted, his cousin Pinku came.
Titu did not come. Narendra also did not
come. The blanket, which was thrown over
the victim, was left a little. He did not see
the container of kerosene oil lying near the
victim or kept in the cupboard. He did not
give the burnt blanket to Inspector. Some
Dhoti was saved from burning, which was
worn by the victim, and he did not give the
Dhoti to the Investigating Officer. The stuff
he had bought had fallen on the doorstep.
He left Pinku there. He doesn't know where
Pinku went. He took the victim to the
hospital by putting her in Rakesh's car. He
does not know how long it took to reach the
hospital. When he reached the hospital, he
signed some of the papers. There was a
nurse with him, and he had not signed. His
hands and feet were also burnt, but medical
was not done in G.T.B. Hospital. He had a
quarrel with the victim on 9.10.2015; after
that, she did not talk, she talked through
gestures, and she did not speak till death.
Apart from him, the nurse and the driver
were in the hospital. When he went to the
market,
his
children
were
at
their
grandmother's house. His parents had come
home after a lot of issue. Vehicle owner
Rakesh did not accompany him; his
brother's driver accompanied him. He does
not know his name. Pinku's house was on
6 All. Chintu @ Kuldeep Vs. State of U.P.
337
the left side of his house. Inspector went to
G.T.B. Hospital on 9.10.2015. When the
Inspector reached the hospital, his wife's
eyes were open, and she could see. He did
not get his hands and feet medically
treated, and he had taken medicine from the
doctors in the village. On the complainant's
call, his uncle's son Pinku had come to the
rescue and placed the blanket on his wife.
He did not see a kerosene cane and did not
hand over the blanket to the police. Neither
can
he
produce
any
document
substantiating that Chintoo owed his
money, nor can he could produce any
witness to this effect. The complainant's
brothers live separately from him. At the
time of the incident, his brothers were on
duty. Pinku is his real uncle's son, who is a
driver and did not go outside to drive the
car on the date of the incident and was at
home. He further says that none has
cooperated except Pinku in dousing the
fire. The relevant portion of the testimony
of PW-1 is extracted herein below:

" जब में पिलखुआ बाजार से घर लौटकर अिने घर
िंहुचा तो मेरी ित्नी के अलावा घर में कोई भी मौजूद नहीं था। जब में
अिने घर के अंदर गया तो मेरी ित्नी पगरी िड़ी थी।

जब में घर के अंदर िंहुचा मेरी ित्नी पचल्ला नहीं रही थी।
मेरे पचल्लाने िर मेरे चाचा का लड़का पिंकू आया था।

राकेश S/O उम्मेद की गाड़ी में डालकर में नेहा को ले
गया था। उसकी मारुती वैन है । पकतने बजे मैं जी टी बी िंहुचा मुझे टाइम
का अंदाज़ा नहीं है।

जब में अस्िताल िंहुचा था मेरे कुछ कागज़ो िर हस्ताक्षर
हुए थे। मेरे साथ में एक नसस था। उसके अस्िताल में दस्तखत नहीं हुए थे।
मेरा मेपडकल जी टी बी अस्िताल में नहीं हुआ था पजससे मेरे हाथ िाव भी
जले थे ।

पदनांक 08.10.15 को अगले पदन 09.10.15 को
उसका (नेहा) का बीच बचाव हुआ था । उसके बाद नेहा नहीं बोली। इशारे
में बात कर रही थी। मृत्यु तक नहीं बोली।

मैं थाने में दस तारीख को आया था । शाम को चार िांच
बजे आया था । मैंने पजस आदमी से ररिोटस पलखाई थी मैं उसका नाम नहीं
बता सकता ।

मेरे दो भाई मुझसे अलग रहते है। घटना के समय मेरे भाई
ड्यूटी िर थे। पिंकू मेरे सगा चाचा का बेटा है । पिंकू गाड़ी चलाता है। कार
भी चलाता है। घटना के पदन पिंकू कार चलाने नहीं गया था घर िर ही
था।"

17. The prosecution then produced
PW-2, Sanjiv Kumar, who witnessed the
deceased's post-mortem. The dead body
was identified and sealed in his presence.
In cross-examination, this witness stated
that upon receiving a phone call from the
deceased's husband, he reached the hospital
on his motorcycle. He stated that the
complainant is his nephew, and he
identified the dead body in the presence of
the police.

18. PW-3 S.I. Manish Bhati, who
works
in
Delhi
Police,
stated,
in
examination-in-chief, that on 08.10.2015,
he was on emergency duty and was posted
at G.T.B. Enclave police station. On
receiving a call at around 09:00 p.m. from
the Duty Officer, he went to the emergency
ward and found that a lady was admitted in
burnt condition and was under treatment.
He recorded her statement in which she
stated that Chintoo and Monti, the accusedappellants, keep enmity with her husband.
When her husband went to the market, the
accused-appellants
entered
her
house,
demanded money, and threatened to kill her
husband. Upon refusal to give money,
Chintoo
committed
rape,
and
Monti
attempted to commit rape. After that, they
poured kerosene oil on her and set her on
fire. Little later, her husband took her to
G.T.B. Hospital, Delhi. The statement was
recorded in the presence of Dr. Sushil, and
the witness got her toe impression on the
statement.

19. In his cross-examination, the
witness stated that he received no written
instruction from the police station and was
orally asked to record the statement. There
is no endorsement on the statement that the
338 INDIAN LAW REPORTS ALLAHABAD SERIES
victim was fit for recording her statement.
The witness further stated that before
taking the statement of the victim, he had
confirmed that the victim was fit to give the
statement.

20. PW-4 A.S.I. Satpal Singh had
prepared the documents relating to the
post-mortem in the presence of PW-1
Rakesh, PW-2 Sanjiv Kumar, and PW-5
Constable Sanjay registered the F.I.R.
No.566 of 2015, under Sections 452, 376,
307, 386 and 506 I.P.C. against the accused
Chintoo and Monti, on the written report of
PW-1 Rakesh.

21. Avanish Kumar (PW-6) deposed
that after registration of the F.I.R., the
investigation was entrusted to him, and he
inspected the place of the incident and
prepared the site plan. In his crossexamination, the witness states that he
recorded the statement of the complainant
on 10.10.2015 at around 07:30 p.m. and
recorded the statement of witness Pinku,
son of Vijendra Tomar and Titu son of
Bhagtu Kashyap, on 17.10.2015. On
18.10.2015, he arrested the accusedappellants and sent them to jail. The
witness further states that he prepared the
site plan at 08:10 p.m. on 10.10.2015. He
inspected the place where the deceased was
found burnt, he did not find any kerosene
bottle, and the victim's clothes were not
handed over to him. The witness further
states that on 10.10.2015 at around 10:30
p.m. in the night, he went to the hospital to
record the statement of the deceased, where
on inquiry from the staff of the hospital, it
had come to his knowledge that the victim
had 90% burnt and is not in a position to
give her statement. He also found that the
deceased was not able to give a statement.
He tried to meet Dr. Sushil, under whose
supervision the victim received treatment,
but he could not meet him. During the
investigation on 18.10.2015, the witness
told that the deceased has died.

22. Inspector Deepak Tyagi (PW-7),
the second Investigating Officer of the
case, recorded the statement of S.I. Satpal
Singh, S.I. Manish Bhati and Dr. Shalini
Razdan on 30.11.2015. After that, he
submitted the charge sheet on 15.12.2015
against the accused-appellants.

23. Dr. Shalini Razdan (PW-8)
deposed that she had conducted the postmortem of the deceased. On internal
examination, the autopsy doctor found that
the deceased had superficial to deep burns
over and above the hips. The deceased had
83% burnt injuries. The head and neck
were found normal, and the hair of the head
was in semi-burnt condition. The deceased
had no internal injury over the lower part of
the body. In cross-examination, the witness
stated there was no possibility of the
commission of rape with the deceased. The
entire face of the dead body was found
burnt, along with the neck.

24.
The
incriminating
material
produced by the prosecution during the trial
was then confronted to the accused for
recording their statements under section
313 Cr.P.C. The accused persons stated that
police has falsely implicated them at the
behest of the deceased's husband. The
complainant Rakesh, murdered his wife
and falsely implicated the accused persons
to save himself.

25. The defence has produced Pinku,
son of Vijendra Singh, aged 34 years, as
DW-1, who stated that on 8.10.2015, at
around 06:00 p.m., he was sitting on
Mangtu's terrace with Titu and Rakesh.
The deceased and Rakesh fought an hour
6 All. Chintu @ Kuldeep Vs. State of U.P.
339
before the incident. He heard the victim's
voice of rescue. Hearing the call for help,
he went to Rakesh's house and saw the
victim burning in the flames. Only Rakesh
and the victim were there. When he asked
Rakesh to extinguish the victim's fire,
Rakesh said, 'let the victim burnt'. The
victim did not tell anything. She had
fainted. When Rakesh did not save the
victim, he saved the victim by covering her
with a blanket. The victim was saying,
Rakesh is killing me; save me. Other
people of the village also gathered outside
the door. He doesn't know why Rakesh
used to beat his wife. Shortly before the
incident, the victim told Rakesh to kill her,
and Rakesh said he would finish her. At the
time of the incident, the victim had not
taken the names of Monti and Chintoo in
front of the witness.

26. In his cross-examination, he stated
that the police did not interrogate him and
that Rakesh is his cousin (father's younger
brother's son). He had indeed received the
summon
from
the
court,
but
the
complainant did not allow him to depose in
the court.

27. Suresh Singh, a resident of village
Sikhadea, P.S. Pilakhua, District Hapur, was
examined as DW-2. This witness has deposed
that the deceased's husband runs a grocery shop
in the village. He went to the grocery store to
buy goods. He saw that Rakesh and his wife
were fighting and abusing each other. Rakesh
dragged his wife inside the room and locked the
room from inside the outer gate. There was no
one in the house except the victim and Rakesh.
Pintu opened the door from inside. Rakesh was
seen standing near his wife while she was on
fire. Rakesh did not make any effort to save his
wife. This witness denied the suggestion by the
prosecution that he was deposing falsely to save
accused persons.

28. Sanjiv Kumar, who was examined as
DW-3, deposed that when the police reached
his village, he came to know that Monti had
been falsely implicated in an incident that took
place on 8.10.2015 at about 07:00 p.m. One day
before the incident i.e., 7.10.2015, he, along
with Monti, had gone to Amroha to buy
Crusher. He and Monti stayed in Amroha for
three days and returned on 9.10.2015. Monti
has remained with the witness in Amroha for
three days. Monti's uncle runs Crusher, so I
know him. In his cross-examination, the
witness has denied the suggestion that he is
deposing falsely to save accused persons.

29. Court below, upon evaluation of
the evidence brought on record, has
concluded
that
the
prosecution
has
succeeded in proving the guilt of the
accused-appellants beyond a reasonable
doubt.

30. For arriving at such a conclusion,
the trial court has relied upon the following
evidence:

30.1 That the deceased revealed
to her husband how she had been put on
fire after the commission of rape upon her
by the accused persons.

30.2
The
dying
declaration
recorded by PW-3 S.I. Manish Bhati is
consistent, and there is no reason to falsely
implicate the accused persons at the behest
of PW-3.

30.3 There was a definite motive,
as proved by the prosecution, for the
accused to commit the crime at the place,
time and date.

30.4 The testimony of PW-1 and
PW-3 is trustworthy, and their ocular
testimony matches the post-mortem report.

30.5 The prosecution thus proved
the incident that occurred in a manner as
stated by the prosecution witness, proving
340 INDIAN LAW REPORTS ALLAHABAD SERIES
the guilt of the accused persons beyond a
reasonable doubt.

30.6
The
prosecution
has
successfully brought home the guilt of
accused Chintoo @ Kuldeep and Monti @
Ravindra by leading evidence beyond a
reasonable doubt.

31. The contentions of the defence, as
set out before this court, are as under:

31.1 There is a delay of almost 48
hours in the registration of the F.I.R., which
is not explained by the prosecution.

31.2 There is no eye witness to
the incident.

31.3
There
are
major
contradictions and improvements in the
statement of PW-3, who had allegedly
recorded the dying declaration, and his
presence in the hospital is doubtful. There
are considerable embellishments in the
statement of PW-3.

31.4 PW-3 S.I. Manish Bhati has
recorded the victim's statement without the
authority and knowledge of senior officers.
There is no witness to the statement, and
the same has not been recorded in the
presence of any independent witness, even
though Dr. Sushil, driver Surendra and the
nurse were allegedly present at the hospital.

31.5 Except for the statement
recorded by S.I. Manish Bhati, there is no
independent evidence to corroborate the
case of the prosecution.

31.6 The hospital's post-mortem
report and admission slip completely belie
the prosecution story.

31.7 The trial court erroneously
discarded
the
testimony
of
defence
witnesses, even though DW-1's name is
reflected in the F.I.R., and he is the one,
who had doused the fire of the deceased by
placing a blanket on her, and he is also the
cousin of the complainant.

31.8 Looking into the entire
evidence that surfaced during the trial, the
conduct of PW-1, who is the deceased's
husband,
has
been
unnatural
and
suspicious. The complainant's name did not
figure in the MLC prepared by Dr. Sushil.

32. In the given backdrop, the
prosecution evidence could be appreciated
in the following heads:

(i)
Prosecution
version
of
occurrence;
(ii)
Motive;
(iii)
Dying
Declarations; (iv) Medical Evidences; (v)
Conduct
of
PW-1
Complainant;
(vi)
Investigation; (vii) Conclusion.

33. It is an admitted case that the
victim has died because of burn injuries in
the G.T.B. Hospital in Delhi. So, there
could be three alternatives for her being
burnt- (i) Suicide; (ii) Accidental Fire; and
(iii) Being put on fire.

34. On perusal of the statement
recorded under Section 313 Cr.P.C., it
transpires
that
as
per
the
accused
complainant set his wife on fire and falsely
implicated the accused-appellants. Neither
is it a case of prosecution nor of defence
that
the
victim
got
accidental
fire.
Therefore, no case is made out to suggest
that the victim sustained burn injuries
because of an accidental fire. At best, it
could be a case of suicide or being put on
fire either by the accused or by the
complainant. Suicide by setting on fire has
not been pressed by either party, leaving
only one alternative of putting the victim
on fire and intentionally killing her by
burning for our consideration.

35. For evaluating the merits of the
case, below-mentioned facts emerge:

35.1 As per the prosecution, the
victim disclosed the manner of the incident
6 All. Chintu @ Kuldeep Vs. State of U.P.
341
to her husband and then, on the same day,
to S.I. Manish Bhati, who was examined as
PW-3.

35.2 The incident occurred on
8.10.2015 at about 07:15 in the evening in
the house of the complainant-husband, who
was examined as PW-1.

35.3 The victim was taken to
Delhi for treatment and admitted to G.T.B.
Hospital, Delhi, at 09:25 p.m. on the same
day.

35.4 The MLC was prepared by
Dr. Sushil, who first attended to the victim
at 09:15 p.m. and allegedly endorsed a
finding on the MLC that the victim is fit for
statement.

35.5 S.I. Manish Bhati, after
getting a telephonic call from Duty
Officer Police Station G.T.B. Enclave,
Delhi, reached the hospital in the evening
and recorded the statement of the victim
and got her toe impression on the
statement without informing the Senior
Officers.

35.6
The
complainant,
one
Surendra Kumar and a nurse, who were
present in the hospital at the time of the
victim's admission are not made witnesses
in the statement recorded by S.I. Manish
Bhati.

35.7 Dr. Sushil, who was on duty,
was also not made witness by S.I. Manish
Bhati.

35.8 Pinku, the cousin of the
complainant, was not examined as a
prosecution witness even though he was a
police witness in the charge-sheet.

35.9 Two dying declarations of
the victim were recorded; the victim
narrated the incident and commissioning of
the offence to two different persons; i) to
her husband, who was examined as PW-1;
and ii) to S.I. Manish Bhati, who recorded
her statement in the hospital and examined
as PW-3.

35.10 The F.I.R. was registered
after a delay of 48 hours on 10.10.2015 at
19:15 p.m. at Police Station Pilakhua,
District Hapur, even though the police
station was 5 km from the place of the
incident.

36. On perusal of the first information
report, it is revealed that DW-1 Pinku had
placed the blanket on the victim to douse
the flame. The police
recorded his
statement under Section 161 Cr.P.C., and
he was a witness to the charge sheet as
well, but the prosecution dropped this
witness for the reasons best known to them.
On perusal of the admission slip of the
hospital prepared by Dr. Sushil, it found
mentioned that the victim was admitted to
the hospital at 09:25 p.m., but the date is
not mentioned on the admission slip. It is
further mentioned that the victim was
brought to the hospital by one Sanjiv
Kumar having Mob No.7830630993. It is
further mentioned that the patient was
conscious and obeying verbal commands
and found fit for statement, whereas, on
perusal of the testimony of PW-1, it
transpires that he admitted the victim to the
hospital, contrary to the medical evidence.

37. As per the testimony of PW-3 S.I.
Manish Bhati, the victim was brought by
PW-1 Rakesh, the husband of the victim,
and in his cross-examination, he stated that
he had gone to the hospital to record the
statement of the victim on the oral
instructions of the senior officer at around
09:15 p.m. He further stated that Dr. Sushil
Kumar identified the patient but did not
remember whether he had met with Dr.
Sushil. He has further admitted that
Exhibit-A12/6 (the statement of the victim
recorded by PW-3) did not find any
endorsement by Dr. Sushil. He recorded the
statement after perusal of MLC in which it
342 INDIAN LAW REPORTS ALLAHABAD SERIES
was endorsed that the patient was fit for
recording it. He has further stated that he
has not taken the endorsement of Dr. Sushil
upon Exhibit-A12/6. On scrutiny of the
statement of PW-3 S.I. Manish Bhati, MLC
prepared by Dr. Sushil, and on perusal of
F.I.R., it could safely be concluded that the
F.I.R. has been registered after many
deliberations, and therefore a delay of 48
hours has occasioned in registration of the
F.I.R.; which is not satisfactorily explained
by the prosecution. The police station is
only 5 km away from the place of the
incident, and there is no satisfactory
explanation
forthcoming
from
the
prosecution as to why there is a delay in the
registration of the F.I.R. Further, Dr.
Sushil, who prepared the MLC has not
been produced as a prosecution witness
despite the fact he is a police witness in the
charge-sheet. Dr. Sushil could have been a
potential witness of the prosecution to
explain why the date is not mentioned on
the MLC despite a specified column in the
MLC Form whether the PW-3 has taken the
statement of the injured on 8.10.2015.

38. In light of the statement of PW-1
and PW-2, it would be in the fitness of the
case to take the rescue of the law on dying
declaration since the defence counsel has
disputed the presence of the complainant
and the S.I. Manish Bhati at the G.T.B.
Hospital in New Delhi on 8.10.2015, the
date of admission of the victim in the
hospital and other embellishments are also
noticed, as discussed herein above. The law
with regard to dying declaration are briefly
enumerated below:

39. In Dalip Singh & Ors. v. State of
Punjab, the Supreme Court has held:

"We may also add that although a
dying declaration recorded by a Police
Officer
during
the
course
of
the
investigation is admissible under section 32
of the Indian Evidence Act in view of the
exception provided in sub-section (2) of
section 162 of the Code of Criminal
Procedure, 1973, it is better to leave such
dying declarations out of consideration
until and unless the prosecution satisfies
the court as to why it was not recorded by a
Magistrate or by a doctor. As observed by
this Court in Munnu Raja v. State of
Madhya Pradesh, [1976] 2 S.C.R. 764;
A.I.R. 1976 S.C. 2199), the practice of the
Investigating Officer himself recording a
dying declaration during the course of
investigation
ought
not
to
be
encouraged......... "

40. Hon'ble Supreme Court of India
in Nallapati Sivaiah vs Sub-Divisional
Officer, Guntur, has observed that the
Dying Declaration must inspire confidence
so as to make it safe to act upon. Whether it
is safe to act upon a Dying Declaration
depends upon not only the testimony of the
person recording the Dying Declaration, be
it even a Magistrate, but also all the
material available on record and the
circumstances,
including
the
medical
evidence. The evidence and the material
evidence on record must be properly
weighed in each case to arrive at a proper
conclusion. The court must satisfy itself
that
the
person
making
the
Dying
Declaration was conscious and fit to make
a statement for which purposes not only the
evidence of persons recording dying
declaration but also the cumulative effect
of the other evidence, including the medical
evidence and the circumstances, must be
taken into consideration.

41. It is unsafe to record a conviction
on the basis of a dying declaration alone in
cases where suspicion is raised as regards
6 All. Chintu @ Kuldeep Vs. State of U.P.
343
the correctness of the dying declaration. In
such cases, the court may have to look for
corroborative evidence by treating the
dying declaration only as a piece of
evidence.

42. Resting the conviction solely
based on dying declarations would be
unsafe in the present case.

43. Learned counsel has cited
Nallapati Sivaiah vs. Sub-Divisional
Officer,
Guntur,
Andhra
Pradesh
(supra). The unreliability of an oral dying
declaration made to a family member in the
absence of the Doctor was sought to be
questioned by citing Arvind Singh v. State
of Bihar, Arun Bhanudas Pawar vs.
State of Maharashtra and Poonam Bai
vs. State of Chhattisgarh.

44. We have thoughtfully considered
the arguments advanced by learned counsel
for the parties and carefully perused the
record.

45. Dying declaration is the last
statement that a person makes as to the
cause of his imminent death or the
circumstances that had resulted in that
situation, at a stage when the declarant is
conscious that there are virtually nil
chances of his survival. On the assumption
that at such a critical stage, a person would
be expected to speak the truth, courts have
attached great value to the veracity of such
a statement. Section 32 of the Indian
Evidence Act of 1872 states that when a
person makes a statement as to the cause of
death or as to any of the circumstances
which resulted in his death, in cases in
which the cause of that person's death
comes into question, such a statement, oral
or in writing made by the deceased victim
to the witness, is a relevant fact and is
admissible in evidence. It is noteworthy
that the said provision is an exception to
the general rule contained in Section 60 of
the Evidence Act that 'hearsay evidence is
inadmissible' and only when such evidence
is direct and is validated through crossexamination, is it considered to be
trustworthy.

46.

In
Kundula
Bala
Subrahmanyam and Another v. State of
Andhra
Pradesh,
Supreme
Court
highlighted the significance of a dying
declaration in the following words :

"18.
Section
32(1)
of
the
Evidence Act is an exception to the general
rule that hearsay evidence is not admissible
evidence, and unless evidence is tested by
cross-examination, it is not creditworthy.
Under Section 32, when a statement is
made by a person as to the cause of death
or as to any of the circumstances which
result in his death, in cases in which the
cause of that person's death comes into
question, such a statement, oral or in
writing, made by the deceased to the
witness is a relevant fact and is admissible
in evidence. A dying declaration made by a
person on the verge of his death has a
special sanctity as, at that solemn moment,
a person is most unlikely to make any
untrue statement.