# Dilawar Singh v. State of U.P

- **Citation:** (2024) 8 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-09
- **Case number:** Criminal Appeal No. 5591 of 2019
- **Bench:** Arvind Singh Sangwan, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilawar-singh-v-state-of-u-p-52302
- **Pages:** 24

## Headnote

Evidence Act, 1872 - Section 32 - Dying
Declaration
-
Admissibility
of
Dying
Declaration - Sole ground for conviction of
the appellants was the Dying Declaration
Held : Court held that in the instant case
Dying Declaration cannot be relied upon.
Dying Declaration had two endorsements
of the doctor one at the top and one at the
bottom. At both places, there was seal of
E.M.O., S.N.M. Hospital with initial of the
Doctor but the name of the doctor was not
mentioned in both the endorsement. On
the
top
and
bottom
of
the
Dying
Declaration doctor has used the word
"Dying
Declaration"
instead
of
"Statement"
show
that
those
endorsements were made subsequently
when the deceased died and that is why
the term "Dying Declaration" was used
instead of "Statement". Doctor has stated
that the victim was fully conscious and
can give her Dying Declaration. On the
bottom, again the doctor stated that
during recording of the Dying Declaration
she was conscious. In ordinary course,
the doctor gives an opinion that the victim
is in the fit state of mind to get her
statement
recorded.
In
both
the
endorsements, the Doctor has not given
any opinion that the victim was in a fit
state of mind to get her statement
recorded and it is only stated that she is
conscious to give her dying declaration. In
the absence of any specific opinion by the
doctor that the victim is in fit mental state
to
give
the
statement,
the
Dying
Declaration become highly suspicious.
Doctor has not recorded his satisfaction by
asking some preliminary questions that
the victim was in a fit mental condition to
make her statement. There was no
endorsement
by
doctor
that
after
recording the dying declaration, he has
read over the same to the victim and after
understanding the same, she has put her
thumb impression.Doctor who made the
162 INDIAN LAW REPORTS ALLAHABAD SERIES
endorsement was not examined, even his
statement under Section 161 Cr.P.C. was
not recorded. There was no corroboration
by any family members i.e. PW-1 to PW6
that PW-10 had recorded the Dying
Declaration naming the accused. In the
Dying Declaration, nothing was recorded
that on account of demand of dowry or
maltreatment or that the victim was
subjected to cruelty due to which her
husband by pouring kerosene oil has lit
the fire. No motive was attributed to the
accused. Even in Dying Declaration, no
motive was attributed. Dying Declaration
was doubtful and was not reliable and
benefit of doubt was given to the accused.
(Para 54)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,817 of 70,347. This is a partial read: ask again with offset=39817 for what follows._

8 All. Dilawar Singh Vs. State of U.P.
161
that the prosecution has failed to prove the
charges of rape levelled against him and
accused is entitled to benefit of doubt.

25. In view of the discussions and
deliberations held, this criminal appeal
succeeds and is allowed. The conviction
and sentence of the accused appellant
Heera vide judgment and order dated
24.10.2002
passed
by
the
learned
Additional Sessions Judge (Fast Track )
Court Room No. 16, District Bulandshahr
in Sessions Trial No. 122 of 2002 (State
Vs. Heera) arising out of Case Crime No.
107 of 2001 under Section 376 I.P.C.
Police
Station
Jahangirabad,
District
Bulandshahr, is set aside.

26. The accused-appellant shall be
released forthwith unless he is wanted in
any other case subject to compliance of
Section 437-A Cr.P.C.

27. The trial Court record along with
the copy of this order be transmitted to the
court concerned forthwith.
----------
(2024) 8 ILRA 161
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5591 of 2019
And
Criminal Appeal No. 5593 of 2019

Dilawar Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Noor Muhammad, Rajeev Malviya, Shashi
Dhar Pandey, Yogesh Kumar Srivastava

Counsel for the Respondent:
G.A.

Evidence Act, 1872 - Section 32 - Dying
Declaration
-
Admissibility
of
Dying
Declaration - Sole ground for conviction of
the appellants was the Dying Declaration
Held : Court held that in the instant case
Dying Declaration cannot be relied upon.
Dying Declaration had two endorsements
of the doctor one at the top and one at the
bottom. At both places, there was seal of
E.M.O., S.N.M. Hospital with initial of the
Doctor but the name of the doctor was not
mentioned in both the endorsement. On
the
top
and
bottom
of
the
Dying
Declaration doctor has used the word
"Dying
Declaration"
instead
of
"Statement"
show
that
those
endorsements were made subsequently
when the deceased died and that is why
the term "Dying Declaration" was used
instead of "Statement". Doctor has stated
that the victim was fully conscious and
can give her Dying Declaration. On the
bottom, again the doctor stated that
during recording of the Dying Declaration
she was conscious. In ordinary course,
the doctor gives an opinion that the victim
is in the fit state of mind to get her
statement
recorded.
In
both
the
endorsements, the Doctor has not given
any opinion that the victim was in a fit
state of mind to get her statement
recorded and it is only stated that she is
conscious to give her dying declaration. In
the absence of any specific opinion by the
doctor that the victim is in fit mental state
to
give
the
statement,
the
Dying
Declaration become highly suspicious.
Doctor has not recorded his satisfaction by
asking some preliminary questions that
the victim was in a fit mental condition to
make her statement. There was no
endorsement
by
doctor
that
after
recording the dying declaration, he has
read over the same to the victim and after
understanding the same, she has put her
thumb impression.Doctor who made the
162 INDIAN LAW REPORTS ALLAHABAD SERIES
endorsement was not examined, even his
statement under Section 161 Cr.P.C. was
not recorded. There was no corroboration
by any family members i.e. PW-1 to PW6
that PW-10 had recorded the Dying
Declaration naming the accused. In the
Dying Declaration, nothing was recorded
that on account of demand of dowry or
maltreatment or that the victim was
subjected to cruelty due to which her
husband by pouring kerosene oil has lit
the fire. No motive was attributed to the
accused. Even in Dying Declaration, no
motive was attributed. Dying Declaration
was doubtful and was not reliable and
benefit of doubt was given to the accused.
(Para 54)

Allowed. (E-5)

List of Cases cited:

1. Dattatraya Vs St. of Mah., 2024 SCC OnLine
SC 223

2. Shambhubhai Kalabhai Raval Vs St. of Guj.,
2023 SCC OnLine SC 1420

3. Umakant & anr. Vs St. of Chhatishgarh,
(2014) 7 SCC 405

4.Kanti Lal Vs St. of Raj., (2009) 12 SCC 498

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. The present appeals have been
filed against the judgment of conviction
dated 9.7.2019 passed by Additional
Sessions Judge, Court No. 8, Firozabad
in ST No. 392 of 2012 (Case Crime No.
239 of 2012), Police Station - Utter,
Firozabad by which the appellants were
convicted of charge under Sections 498A, 304-B IPC, read with Section 3⁄4 of
the Dowry Prohibition Act. Accusedappellant,
Dilawar
Singh,
was
sentenced to undergo life imprisonment
under Section 304-B IPC whereas
accused-Jagat
Singh
and
Virendra
Singh were sentenced to undergo 10
years of rigorous imprisonment. Under
Section 498A of IPC, all the accused
were
awarded
two
years
of
imprisonment with fine of Rs. 5000/-
each. In case of default of payment of
fine, they were directed to further
undergo imprisonment for one month
each. Under Section 4 of the Dowry
Prohibition Act, the appellants were
directed
to
undergo
two
years
imprisonment with fine of Rs. 5000/-
each and in default of payment of fine,
they have to undergo one month further
imprisonment. All the sentences were
ordered to run concurrently.

2. Heard Sri Yogesh Kumar
Srivastava, learned counsel for the
appellant, Sri Arun Kumar Singh,
learned Amicus Curiae, and learned
A.G.A. for the State.

3. This case is listed in the
category of 'Supreme Court Expedited
Cases' as in S.L.P. (Criminal) Diary
No. 15422 of 2024 (Dilawar Singh Vs.
State of U.P.), he Supreme Court has
passed
the
following
order
on
26.04.2024, which read as under:

"Delay condoned.

We
are
not
inclined
to
interfere with the impugned judgment
and hence, the special leave petition is
dismissed.

We request the High Court to
take up Criminal Appeal no. 5591/2019
filed by the present petitioner- Dilawar
8 All. Dilawar Singh Vs. State of U.P.
163
Singh for hearing as expeditiously as
possible.

In case the appeal is not taken
up for hearing within six months from
today for reasons not attributable to the
petitioner or co-convicts, the petitioner
- Dilawar Singh may file a fresh
application for grant of bail, which will
be considered in accordance with law.

We also observe that the
counsel appearing for the petitioner -
Dilawar Singh should be ready for
arguments when Criminal Appeal no.
5591/2019 is taken up by the High
Court for hearing.

Pending application(s), if any,
shall stand disposed of."

4. Paper book is ready. Trial Court
record
is
requisitioned
and
the
arguments on main appeal is heard.

5. During pendency of the appeal,
the accused-appellant Jagat Singh has
died and this fact is verified by the
Chief Judicial Magistrate, Firozabad. It
is also worth noticing that appellant
Virendra Singh was released on bail
vide order dated 19.2.2020 as he was on
bail during trial, however, the appellant
Dilawar Singh is in continuous judicial
custody since 29.4.2012 and has
undergone 12 years and 5 months of
actual custody and 13 years and 4
months of total custody including
remission. Both the appellants have no
criminal history.

6. Brief facts of the case are that
on 29.02.2012, informant- Rambir
Singh
has
given
complaint
vide
Ex.Ka.1 on the basis of which chik FIR
(Ex.Ka-3) was registered which read as
under:

"सेवा में, श्रीमान थानाध्यक्ष महोदय थाना उत्तर
किरोजाबाद कनवेदन है कक मै रामवीर कसंह यादव पुत्र श्री
साकलग राम कनवासी महरारा कजला हाथरस का रहने वाला ह ूँ।
मैने अपनी बेटी शकश देवी की शादी दो साल पहले कदलावर
कसंह यादव पुत्र श्री वीरेन्र यादव कनवासी जैन नगर थाना उत्तर
के साथ की थी। मैने शादी में अपनी हैकसयतनुसार दान दहेज
भी कदया था। मगर लडका पक्ष उससे सन्तुष्ट नहीं था वे लोग
श्वसुर वीरेन्र यादव, पकत कदलावर व जेठ कवजय कुमार व देवर
जगत कसंह अक्सर बेटी शकश देवी के साथ मारपीट करते थे
और कहते थे कक अपने माता कपता से 50,000/- नगद व
एक मोटर साइककल लेकर आओ नहीं तो हम तुम्हें मार देंगे
27 िरवरी को मेरे पास मेरी बेटी का िोन आया था कक
मम्मी पापा आप जाओ नहीं तो ये लोग मुझे जान से मार देंगे।
आज 29 िरवरी को बेटी की ससुराल से िोन आया कक
तुम्हारी बेटी जल गई है। जल्दी आ जाओ मै जब अस्पताल
पहुंचा तो देखा कक बेटी शकश देवी पूरी तरह से जली हुई है
और लडका पक्ष का कोई भी व्यकि अस्पताल में मौजूद नहीं
था। मुझे पूरा कवश्वास है कक मेरी बेटी को जलाने में इन्हीं सब
लोगो का हाथ है। अतः आपसे कनवेदन है कक मेरी ररपोटट
कलखकर उकचत कायटवाही की जाये और उकचत न्याय कदलाने
की कृपा करें। कनवेदन रामवीर s/o साकलगराम ग्रा० महरारा
कज० हाथरस थाना सहपऊ िोन 9917535777

नोट- मै c/609 रामवीर कसंह प्रमाकणत करता ह ूँ
कक तहरीर की नकल कचक हाजा पर शब्द व शब्द अंककत की
गई है काबटन प्रकत साि व पठनीय है। तहरीर हमररश्ता मूल
एि.आई.आर. है।

ह० C/609 रामवीर कसंह

थाना उत्तर कि०बाद

कद०29/02/12"

7. The investigation was carried
out
by
the
police.
During
the
investigation, one Naib Tehsildar, who
later on, appeared as PW-10, recorded
the dying declaration of the victim. The
164 INDIAN LAW REPORTS ALLAHABAD SERIES
operative part of the dying declaration
(Ex.Ka.7) read as under:

"Certified that Smt. Shashi,
aged about 25 years, w/o Dilawar
Singh R/o Jaid Nagarm ACS North,
Distt. Firozabad, is fully conscious and
can give her Dying Declaration.

ब्यान शकश w/o कदलावर कसंह कन० जैन नगर
किरोजाबाद उम्र- 32 वषट पेशा- गृहणी

बहल्ि ब्यान ककया कक घटना कद० 28/2/12
की साय 9.00 बजे की है। घरवालो मेरे पकत कदलावर से कहा
कक शकश में आग लगा दो। मेरे पकत ने मेरे उपर कमट्टी का तेल
डाला। आग किसने लगाई यह मुझे पता नहीं। मेरा पकत
दारू पीिर आया था। मेरे पकत ने िहा मै जा रहा ह ूँ। किर
मुझमें आग लगाने िी धमिी दी थी। मैने कहा लगा दो।
किर मेरे पकत ने मुझमें आग लगा दी। ब्यान सुनकर पढ़कर
तस्दीक ककया।

ह० अप०

कन० अ० दाकहना हाथ

29/2/12

 ह० अप०

N.T.

29/2/12

Date 29/2/12

N.T.

time 9.30 AM

SNM Firozabad (U.P.)

Certified that Smt. Shashi w/o
Dilawar
Singh
described
above
remained fully conscious throughout
her dying declaration.
ह० अप०
29/2/12
9.30AM
EMO
SNM Hospital
FIROZABAD"

8. The police prepared a
Panchayatnama in which it was
decided that the post-mortem of the
dead body should be conducted.
Thereafter, the post-mortem of the
victim, who died, on 01.03.2012 was
conducted.
Thereafter,
the
final
report was submitted against three
accused persons namely, appellant-
husband Dilawar Singh, brother-inlaw- Jagat Singh and father-in-law-
Virendra
Singh.
The
case
was
committed to the Court of Sessions.
The
Additional
Sessions
Judge,
Firozabad framed the charges against
the appellants under Sections 498A,
304B of I.P.C. and in alternative
framed the charge under Section 302
read with Section 506 of I.P.C. and
Section 3/4 of D.P. Act.

9. The appellants did not plead
guilty and claimed the trial.

10. In prosecution evidence, PW1- informant, Rambir Singh, appeared
and stated on the line of the allegations
made in the FIR. However, in crossexamination, this witness turned hostile
and stated as under:

"नाम साक्षी- रामवीर कसंह पुत्र साकलगराम उम्र
करीब 55 साल पेशा नौकरी कनवासी ग्राम महरारा थाना
सहपऊ कजला हाथरस। शपथ पूवटक बयान ककया कक मैने
अपनी लडकी शकश की शादी कदलावर से इस घटना से दो
साल पहले की थी। शादी मे मैने अपनी लडकी की शादी
अपनी हैकसयत के अनुसार की थी। मेरे द्वारा कदये गये दान दहेज
से मेरी लडकी के पकत कदलावर, ससुर देवर व जेठ सन्तुष्ट नही
हुये। और मेरी लडकी के साथ मारपीट करते थे परेशान करते
थे और कहते थे कक आप अपने कपता से 50,000/- व एक
स्पैण्ड्डर मोटर साईककल लेकर आ नही तो तुझे जान से मार देंगे।
मेरी लडकी ने घटना से दो कदन पहले 27 िरवीर को िोन
8 All. Dilawar Singh Vs. State of U.P.
165
ककया था मम्मी पापा आप आ जाओ नही तो ये लोग मुझे मार
देंगे मुझे परेशान कर रहे है। 29 िरवरी को मेरी लडकी के
ससुराल से ककसी पडोसी अडोसी ने िोन ककया कक तुम्हारी
लडकी जल गई है जल्दी आ जाओ मै अपने पूरे पररवार के
साथ सरकारी अस्पताल पहुंचा तो वहां पर मेरी लडकी मुझे
जली हुई हालात मे कमली। वहां पर मेरी लडकी के पकत व
ससुरालीजन कोई अस्पताल मे नही कमले। मेरी लडकी ने मुझे
बताया कक ससुर व देवर ने कमट्टी का तेल डालकर आग लगाने
के कलये कहा उसी बात पर जेठ कवजय कुमार ने कमट्टी का तेल
डाल कदया पकत कदलावर ने आग लगाई। ससुर वीरेन्र व देवर
जगत कसंह मौजूद खडे रहे। किर इस घटना की ररपोटट कलखकर
थाना उत्तर पर जाकर दी। पत्रावली मे कागज संख्या 3अ/2
को देखकर गवाह ने कहा कक मैने यही ररपोटट थाना उत्तर मे
जाकर की थी। जो मेरे अपने हस्ताक्षर की कशनाख्त करता ह ूँ
कजस एक्ज क1 डाला गया। मेरी लडकी सैिई अस्पताल मे
29 तारीख को ही खत्म हो गई थी। वहां पर मेरी लडकी के
शव का पंचनामा भरा था उस पर मैने अपने हस्ताक्षर ककये।
पत्रावली मे कागज सं. 7अ/1 लगायत 7अ/2 पर गवाह ने
अपने हस्ताक्षर को कशनाख्त की। मैने अपनी लडकी का दाह
संस्कार अपने गांव मे ले जाकर ककया था।

X

 x

 x

 x

 x

मैं हाईस्कूल िेल ह ूँ। ररपोटट मैने थाने पर बैठकर
कलखी थी। अकभयुि के अकधविा श्री नाहर कसंह यादव धारा
17ब स्थगन प्राथटना कदया।"

"x x x x x (sic) recorded from
PW1 Ranveer Singh recall on oath on
dt. 24.7.15 ररपोटट प्रदशट क-1 मैने अपने मन से नहीं
कलखी थी। दरोगा जी ने अपनी मजी से बोल-2 कर कलखवाई
थी। मेरी लडकी के साथ कदलावर कसंह, जगत कसंह, वीरेन्र
कसंह ने कभी भी अकतररि दहेज की मांग नहीं की और न
उसके साथ कभी कोई मारपीट की थी। मेरी लडकी ने मुझे
कभी भी अकतररि दहेज की मांग के बारे में नहीं बताया था
उसके ससुरालीजनों ने मुझसे कभी अकतररि दहेज की मांग
नहीं की थी। मेरी लडकी कम कदमाग की थी और वह खाना
बनाते समय स्वयं ही जल गयी थी। यह बात मेरी लडकी ने
मुझे भी बताई थी कक वह खाना बनाते समय अपने आप जल
गयी थी। मेरी लडकी को उसके ससुरालीजनों ने नहीं जलाया
था। मै अपनी लडकी की दाह संस्कार के कलये ले गया था दाह
संस्कार में उसके ससुराली जन शाकमल हुए थे। मेरी लडकी का
अस्पताल में इलाज उसके ससुराल वालों ने कराया था दरोगा
जी। कववेचक ने मेरा कभी कोई बयान नही कलया था और न ही
पूंछताछ की थी कववेचक को मैने घटनास्थल नहीं कदखाया था।

कोटट सकटट०

 सु० तस्दीक ककया

 ह० अप०

 ह० रामवीर कसंह

ASJ/(sic)

24/7/15"

11. PW-2- Smt. Saroj Devi,
mother of the victim also did not
support the prosecution version and
her statement read as under:

"कथन- श्रीमती सरोज देवी उम्र 55 साल
w/o श्री रामवीर कसंह पेशा गृहणी R/o महरारा Ps सहपऊ
कजला हाथरस ने शपथ पर बयान ककया कक मैने अपनी लडकी
शकश की शादी वषट 2009 में कदलावर कसंह के साथ कहन्दू
रीकत से की थी। शादी के बाद ससुरालीजन अकतररि दहेज में
50,000/- व मोटर साइककल की मांग को लेकर मेरी लडकी
को तंग व परेशान नहीं करते थे। अकतररि दहेज की मांग को
लेकर मेरी लडकी की हत्या आग लगाकर नहीं की है। ----
At this stage declare hostile on the oral
request of ADGC to cross examination
to the witness (sic)-

मैने अपनी बेटी की शादी साधारण तरीके से की
थी। मेरी लडकी ने अपनी तंग परेशानी की कोई कशकायत नहीं
की थी। कववेचक ने मेरा बयान नहीं कलया था। गवाह को 161
Cr.P.C. का बयान पढ़कर सुनाया तो उसने बताया कक कैसे
बयान कलया मै नहीं बता सकता। यह कहना गलत है कक मै
मुकल्जमान से कमलकर सही बात नहीं बता रही ह ूँ।

x x x by defence counsel-

opportunity given to cross
examination

-------NIL-------"

12. PW-3- Satyendra Kumar, the
real brother of the victim- deceased also
166 INDIAN LAW REPORTS ALLAHABAD SERIES
did not support prosecution version. His
statement read as under:

"नाम साक्षी सतेन्र कुमार s/o श्री रामवीर कसंह
उम्र करीब 27 साल पेशा कवद्याथी कन. माहरारा थाना सहपऊ
कजला हाथरस ने शपथ पूवटक बयान ककया ककः-

बकहन की शादी आज से करीब 3 साल पहले
कदलावर कसंह s/o वीरेन्र कसंह के साथ कहन्दू रीकत ररवाज के
साथ हुई थी। हम लोगो ने अपनी बकहन शकश की शादी
हैकसयत के मुताकबक की थी।

मेरी बकहन शशी शुरू से ही किढ़किढ़े पन िी
थी। वह कजद्दी किस्म िी थी।

मेरी बकहन िी मृत्यु अभी खाना बनाते समय
स्वयं जल गई थी।

मै अपनी बकहन के यहां ससुराल में गया था। मेरी
बकहन ससुराल में खुश थी। उसने मुझे कभी भी दहेज की मांग
की बात नहीं बताई थी।

मेरी बकहन ने मुझे कभी भी नहीं बताया कक मेरे
पकत दहेज में 50 हजार और स्पैलन्डर की मांग करते थे।

जलने की सूचना कमली थी। तब मै सरकारी
अस्पताल कि.बाद गया। जहां मोरचरी में देखा था। वहां पर
उसके पकत कदलावर, जेठ कवजय कसंह, ससुर वीरेन्र कसंह, देवर
जगत कसंह और उनकी मां बकहन सभी अस्पताल में मौजूद थे।
और गांव के आसपास के लोग भी मौजूद थे। वहां पर मुझे
बताया था कक तुम्हारी बकहन खाना बनाते में जल गई है।
क्योंकक मै अपनी बकहन की ससुराल में जाता था। इसकलए मुझे
गांव वाले जानते थे।

गवाह ने पत्रावली पर कागज सं. 7अ/1 को
देखकर कहा कक यह वही कागज है कजस पर मेरे हस्ताक्षर है।
पढ़कर नहीं सुनाया था मेरे हस्ताक्षर करा कलये थे जो हस्ताक्षर
बने है। मै उनकी कशनाख्त करता ह ूँ। कजस पर प्रदशट क-2
डाला गया।

इस स्तर पर गवाह को ADGC की प्राथटना पर
पक्षरोही घोकषत ककया गया। कजरह की अनुमकत दी गई।

x x x x cross by ADGC.

पुकलस ने मेरा कोई बयान नहीं कलया गया गवाह
को उसका 161 Cr.P.C. का बयान पढ़कर सुनाया गया
तो गवाह ने कहा कक मैने ऐसा कोई बयान पुकलस को नहीं
कदया। कैसे कलख कलया वजह नहीं बता सकता ह ूँ।

यह कहना गलत है कक हमारा मुकल्जमानों से
राजीनामा हो गया हो। इसकलए मैं अदालत में सही बात नहीं
बता रहा ह ूँ।

x x x x cross by defence.

NIL"

13. PW-4- Smt. Neeraj, wife of
PW-3, was also declared hostile and did
not support the prosecution version
regarding the demand of dowry or any
physical torture and stated that her
sister-in-law (Nanad) died due to an
accidental fire while cooking food. This
witness was declared hostile and in
cross-examination by public prosecutor
when she was confronted with her
statement under Section 161 of Cr.P.C.,
she even denied the same by stating that
she has not made such statement to the
Investigating Officer.

14. PW-5- Mukesh, the paternal
uncle of deceased also did not support
the prosecution version. This witness
stated that he was the mediator in the
marriage and this witness was also
declared hostile. In cross-examination
by public prosecutor, he stated that the
victim never lodged any complaint
regarding maltreatment or demand of
dowry.

15. PW-6- the other brother of
deceased- Shashi also did not support
the prosecution version and stated that
his sister was short-tempered and while
cooking food, she accidentally got burn
injury and died. He further stated that
the cremation was done in presence of
both the families. This witness was also
declared hostile and stated that as the
8 All. Dilawar Singh Vs. State of U.P.
167
deceased could not bear a child, she
remained tensed and had committed
suicide. This witness also denied having
made any statement to the Investigating
Officer under Section 161 of Cr.P.C.
The statement read as under :

"नाम साक्षीः- कजतेन्र कुमार एस/ओ श्री राम
वीर उम्र करीब 30 साल पेशा मजदूरी कनवासी मारदारा थाना
सहपऊ कजला हाथरस ने शपथपूवटक बयान ककया ककः-

मेरी बकहन (मृतक) शशी की शादी आज से
करीब 4 साल पूवट कहन्दू रीकत ररवाज के साथ साधारण तरीके
से हुई थी।

मेरी बकहन शशी मुझसे छोटी थी। वह अपनी
ससुराल से अपने पकत के साथ मेरे घर पर आती जाती थी।
हंसी खुशी आती जाती थी।
मेरी बकहन शशी के पकत कदलावर उसे लाड प्यार से रखते थे।

मेरी बकहन ने कभी भी अकतररि दहेज में मेरे
सामने 50 हजार रूपये व एक मोटर साइककल माूँग वाली बात
नहीं बताई थी। और न ही उसने अपने पकत कदलावर व जेठ
कवजय कुमार व देवर जगत कसंह आकद लोगों के नाम मेरे सामने
मेरी बकहन ने ककसी प्रकार की मार पीट करना उसके साथ
उत्पीडन करना और अकतररि दहेज में माूँग करने वाली बात
ककसी प्रकार की मेरे सामने न ही मम्मी पापा को बताया और न
ही मुझे बताया।

मैं जब भी अपनी बकहन की ससुराल जाता था।
कभी अपनी ससुराल में खाना बनाते कमलती थी। कभी कपडे
धोते कमलती थी। उसने कभी भी मुझसे कोई कशकायत अपने
पकत व ससुराली जनों की नहीं की। वह अपनी ससुराल में हंसी
खुशी रहती थी। उसके कोई बच्चा नहीं था। बच्िा न होने
िी वजह से वह मन ही मन जलती थी। कजससे उसिा
स्वभाव किढ़किडा बन गया था। मेरी बकहन अपनी
ससुराल में खाना बनाते समय जल गई थी। इसिा
इलाज सैिई में ही हुआ था। जहाूँ पर वह उसी कदन मर गई
थी उसका अकन्तम संस्कार हम लोगों ने अपने घर पर ककया
था। साथ में ससुराली जन भी थे।

इस स्तर पर गवाह को ADGC की प्राथटना पर
पक्षरोही घोकषत ककया गया। कजरह की अनुमकत दी गई।

x x x x x Cross by ADGC

मेरी बकहन अपनी ससुराल जब भी मेरे घर आती
थी। हंसी खुशी आती थी। और अपने घर से जब भी अपनी
ससुराली जाती थी। वह हंसी खुशी जाती थी।

उसने कभी भी मुझे पकत व ससुरालीजनों की
उत्पीडन करने वाली व अकतररि दहेज में 50 हजार रू० व
मोटर साईककल वाली बात नहीं बताई थी। बच्चा न होने की
वजह से वह मन ही मन कुढ़ती रहती थी। बच्चा न होने के
कारण उसने आग लगाकर अपनी आत्म हत्या कर ली। यह
बात सही है कक बकहन को ससुराली जन लाड प्यार से रखते
थे।

मेरा दरोगा जी ने कोई ब्यान नहीं कलया। गवाह
को उसका 161 सी०आर०पी०सी० का बयान पढ़कर सुनाया
गया तो गवाह ने कहा कक मैंने ऐसा कोई ब्यान दरोगा जी को
नहीं कदया। दरोगा जी ने ऐसा ब्यान कैसे कलख कदया मैं वजह
नहीं बता सकता।"

16. PW-7- Rambeer Singh, H.C.P.
stated that he received a complaint from
PW-1, on which he registered a chik
FIR, Ex.Ka.3. He futher stated that the
FIR was registered initially under
Sections 498A, 320, 506 of I.P.C. and
Section 3/4 of D.P. Act. In crossexamination, this witness denied the
suggestion that the FIR was ante-time.

17. PW-8- SSI, Ramesh Bhardwaj,
I.O. stated that on 07.03.2012, the
statement of informant was recorded in
which he stated that his daughter-
Shashi died during her treatment in
Safai Hospital. He proved the 'Naksha
Najari' as Ex.Ka.5 and also stated that
he has concluded the post-mortem from
the hospital. In cross-examination, he
stated that he did not investigate the
place of occurrence on 03.03.2012 as he
came to know that the victim and her
husband- Dilawar Singh, both were
admitted in the District Hospital,
Firozabad and later on, both of them
168 INDIAN LAW REPORTS ALLAHABAD SERIES
were referred to PGI Safai. In crossexamination, this witness stated as
under:

" इसकी मुझे अस्पताल पर जानकारी हुई थी कक
पीकडत व उसका पकत कदलावर दोनो कजला अस्पताल किरोजाबाद
भती हुऐ थे कजनकी डाक्टरी ररपोटट की नकल मेरे द्वारा सीडी में
ककया गया था। जब तक मैने कववेचना की तब तक कोई चश्मदीद
साक्ष्य मुझे प्राप्त नही हुआ था। मृकतका के कपता रामवीर कसंह ने मुझे
थाने पर व्यान कदया था कक "मेरी लडकी शकश की सास लौग श्री,
ससुर कवजय कसंह अस्पताल से रैिर करा कर सैिई अस्पताल ले
गये और मै साथ मे था।"

घटनास्थल का कनरीक्षण करने गया था तब मृकतका
की सास लौग श्री मौजूद थी मकान में कही जलने का कनशान नहीं
था मैने उस कदन (sic) घटना स्थल का कनरीक्षण करने वाले
(sic) पडौकसयों के भी ब्यान अंककत ककये थे उसे अपनी समाई
साक्ष्य होना बताया था कक हमने सुना है कक कदलावर की पत्नी ने
आग लगा ली थी बुझाने में कदलावर भी जल गया है कदलावर की
पत्नी की आग से जलने के कारण मृत्यु हो गयी है।"

This witness also stated that he
did not record the statement of the
victim.

18. PW-9- Dr. K.S. Bhadoria stated
that on 01.03.2012, he was posted in
District Hospital, Etawah and has
conducted the post-mortem of Shashi,
wife of Dilawar Singh, who died in
R.I.M.S. Safai Hospital. As per the postmortem, following injuries were found:

"1. बनट (sic) से तृतीय कडग्री तक मौजूद था।
सारे शरीर पर केवल नीचे का 3⁄4 पीछे का कहस्सा छोडकर
दोनो बगलो एवं प्यूकबक (PUBIC एररया) छोडकर दाकहने
हाथ के कपछडी को छोडकर एवं दाकहने तलवे को छोडकर
मौजूद था। रेड लाईन ऑि कद माकट केश मौजूद थी कसर के
बाल झुलसे हुये थे।

मकस्तष्क एवं उसके ऊपर की कझकल्लयाूँ एवं दोनों
िेिडे एवं उसके ऊपर की कझकल्लयाूँ यकृत, कतल्ली, दोनों गुदे
कन्जेस्टेड थे। आमाशय में लगभग 100ML पेस्टी िूड था।
हृदय के दोनों चेम्बर भरे हुये थे। बच्चेदानी खाली थी।

मृतका की मृत्यु, मृत्यु पूवट जलने के कारण शॉक
से हुई थी।"

In cross-examination, he stated
that the burn injuries were on the front
portion of the body and on the back
side, the burn injuries were less.

19. PW-10- Nanhe Ram, Tehsildar
stated that he had gone to the hospital
for recording the Dying Declaration of
victim- Shashi. He proved the statement
as Ex.Ka.7. In cross-examination, he
stated that the memo vide which he was
directed to record the statement, is not
on record. He further stated that he did
not record the statement of the doctor
on dying declaration and, on the dying
declaration, there is seal of S.N.M.
Hospital but name of doctor is not
mentioned. He pleaded ignorance, how
he has recorded the age of the deceased
as 25 years. He further stated that the
word 'Gharwalon' referred to the inlaws
but
the
word
in-laws
(Sasuralwalon) is not mentioned in
dying declaration. He also stated that
in the dying declaration, the deceased
did not mention about the demand of
dowry or maltreatment. He further
stated that on the G.D., his name and
designation are not mentioned and he
has only put his initials. He further
stated
that
with
regard
to
the
contradiction, he has not sought any
clarification from the deceased and
denied a suggestion that he did not
record
the
dying
declaration
by
personally visiting the hospital.
8 All. Dilawar Singh Vs. State of U.P.
169

20. PW-11- Inspector Upendra
Nath Rai, I.O. stated that he prepared
the Panchayatnama which was signed
by him and the Tehsildar. In crossexamination, he stated that he has not
seen the victim in the hospital and has
recorded
the
same
as
per
the
information given by the Tehsildar. He
denied the suggestion that neither he
nor the Tehsildar has visited the
hospital and prepared the documents
while sitting in Tehsil office.

21. PW-12- Asha Ram Yadav,
Retired S.P. stated that he has partly
conducted
the
investigation
after
15.04.2012 and recorded certain CDs.
He stated that he has arrested all the
three accused persons vide C.D. No. 12
and thereafter, he added the offence
under Section 304B of I.P.C. In crossexamination, this witness stated that he
had not seen the dying declaration and
has only seen the statement of his
previous I.O. He further stated that one
of the accused Vijay Singh was not
found involved and his name was
dropped.

22. PW-13- Dr. Mukesh Kumar
who
conducted
the
medico-legalexamination of deceased- Shashi in
Govt. Hospital, Firozabad, stated that
the deceased when brought to the
hospital,
was
in
semi-conscious
condition and had suffered burn injury
and smell of kerosene oil was emitting
from the body. Thereafter, he sent an
information to the police station vide
Ex.Ka.9. This witness stated that on the
same day at about 9:40 PM, he had
examined Dilawar Singh s/o Virendra
Singh who was also admitted in
hospital and in examination, he found
that Dilawar had suffered burn injuries
on his neck, chest, both hands towards
the palm and on the back side of the
palm. The hairs on the hand were burnt
and he was also sustained injuries due
to fire from kerosene oil. He was also
admitted in hospital. His MLR was
proved as Ex.Ka.10.

In cross-examination, he stated
that Shashi was admitted by her
brother-in-law Vijay. Vijay has also
brought Dilawar to the hospital. Both
were brought to the hospital at about
same time and he first treated Shashi
and then Dilawar. Shashi and Dilawar
have sustained 80% and 50% burn
injury respectively. Both were emitting
smell of kerosene oil.

23. Shri Krishna (PW-14), the
Tehsildar, stated that on receiving the
information, he went to the Mortuary of
P.G.I.
Saifai
and
dictated
the
Panchayatnama to S.I. Upendra Rai.
Five persons namely, Rambir, Satendra,
Santveer, Padam Singh and Mahesh
Chand were appointed as panchs.
Panchayatnama (Ex.Ka-2) was prepared
under his signature. He also proved the
signatures of other persons from Ex.Ka11 to Ka-14. In cross examination, this
witness stated that he had no knowledge
whether
at
the
time
when
Panchayatnama was prepared, the F.I.R.
was registered or not. He further stated
that he cannot explain the cuttings and
overwriting on the Panchayatnama,
170 INDIAN LAW REPORTS ALLAHABAD SERIES
however, the cuttings were due to
inadvertent mistakes.

24.

On
conclusion
of
the
prosecution evidence, the statements of
the accused-appellants were recorded
under Section 313 Cr.P.C. and all the
incriminating evidence was put to them.

Accused-Dilawar Singh denied
all the evidence led against him and in
reply to question No.15 regarding
giving his explanation, he stated that he
is innocent and has been falsely
implicated in this case.

Similar is the statement of
Jagat Singh and Virendra Singh who
stated that the Dying Declaration is
artificial and no family witnesses has
supported or proved the occurrence.

25. Thereafter, the Trial Court held
the
appellants
guilty
of
offence
punishable
under
Sections
498A,
Section 304B of IPC and Section 3⁄4 of
Dowry Prohibition Act.

26. The paper book is ready. The
Trial Court record is received and reappreciated with the assistance of
learned counsel for the appellant as well
as learned Amicus Curiae appointed by
the Court and learned A.G.A. for the
State.

27. Learned Amicus Curiae has
argued that none of the prosecution
witnesses of facts have supported the
prosecution version. It is submitted that
all the witnesses were declared hostile. It
is further argued that even PW-1 has
disowned his statement made in Ex.Ka-1,
forming basis of Chik F.I.R. (Ex.Ka-3)
and stated that it was dictated by the
Investigating Officer himself.

28. Learned counsel further argued
that all the witnesses of facts i.e. PW-1 to
PW-7, who are the father, mother, two
real brothers, paternal uncle (mediator of
marriage), sister-in-law (wife of one of
the brothers) have not supported the
prosecution version so much so that they
all have stated that the victim was never
maltreated in her matrimonial home as
neither there was any demand of dowry
nor she was subjected to any cruelty.

29. It is next argued that PW-1 has
stated that his daughter was of feeble
mind and while cooking food, she
sustained burn injuries and died. This
witness stated that when he had gone to
meet his daughter, this fact was stated by
her. This witness also stated that both
families i.e. family of deceased and her
in-laws have attended the funeral of his
daughter.

30. Counsel has further argued that
PW-3, real brother of the deceased, has
stated that his sister was very arrogant
and developed irritable behaviour. She
died as she sustained burn injuries while
cooking food. He also denied the
allegation of demand of dowry by the
accused side.

31. It is next argued that PW-5, the
mediator, has also stated that the
deceased never complained of demand
of dowry from her in-laws.
8 All. Dilawar Singh Vs. State of U.P.
171

32. It is argued that PW-6, the
other brother of the deceased, has stated
that her sister was mentally disturbed as
she could not bear a child and,
therefore, she has committed suicide.
This witness also stated that her in-laws
used to treat her in a proper manner.
Counsel for the appellant has thus
argued that in the absence of any
witness
of
fact
supporting
the
prosecution version, no legal evidence
has come on record to convict the
appellants.

33. It is next argued that as per the
statement of PW-9, the doctor who
conducted the postmortem and PW-13,
the doctor who initially treated the
victim, have stated that the deceased
received burn injuries on the front side
of her body which suggest that she
sustained burn injuries accidentally
while cooking food. Thus, it is argued
that if someone poured the kerosene oil
on her, the same would be spread over
the entire body causing injury on all
parts of the body.

34. Counsel next argued that the
Trial
Court
has
not
taken
into
consideration the fact that even the
appellant-husband had tried to douse
the accidental fire in which, he himself
got burn injuries to the extent of 50%
on his body. Counsel has referred to the
statement of PW-13, the doctor who has
stated that the deceased sustained 80%
burn injuries whereas the appellanthusband sustained 50% burn injuries,
which are on the front side of his neck,
chest and both hands. This witness
further stated that accused-Dilawar
Singh was also smelling kerosene oil. It
is argued that in fact the appellant has
tried to douse the accidental fire and in
that process, he also sustained burn
injuries on front side of his body
including both of his hands, neck and
chest.

35. Counsel has next argued that
PW-13 has further stated that both the
victims i.e. the deceased and Dilawar
Singh were brought to the hospital at
the same time by the elder brother of
Dilawar Singh namely Vijay which also
prove that the deceased suffered burn
injuries in accidental fire while cooking
food.

36. Counsel has next argued that
the conviction of the appellants is solely
based on the Dying Declaration which
has not been proved in accordance with
law.

37. It is argued that Nanheram
(PW-10), the Executive Magistrate,
who recorded the Dying Declaration
has stated that he has received the
information for recording the Dying
Declaration through a memo but the
memo was never produced on record as
admitted by this witness.

38. It is also argued that this
witness has admitted that he did not
record
in
the
Dying
Declaration
whether it was recorded in emergency
ward or in general ward. This witness
further stated that the statement of the
Doctor, in whose presence he recorded
172 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Dying
Declaration,
was
not
recorded in the Dying Declaration. It is
further argued that this witness stated
that there is only seal of E.M.O., S.N.M
Hospital and there is short signature on
the Dying Declaration.

39. Counsel argued that in the
Dying Declaration, it is stated that the
victim recorded the words "Gharwalon"
and not "Sasuralwaon" i.e. her in-laws.
It is also argued that in the Dying
Declaration, there is no averment
recorded that the deceased had stated
that there was any demand of dowry or
maltreatment on account of demand of
dowry as admitted by PW-10. It is
argued
that
in
fact
the
Dying
Declaration was not recorded by this
witness while visiting to the hospital.

40. It is also argued that neither
the Executive Magistrate recorded his
satisfaction about mental condition of
victim by asking preliminary questions
nor
the
doctor made
a
specific
endorsement that the victim is in a fit
condition of mind to make statement.

41. It is also argued that the
endorsement of doctor on the top and
bottom of Dying Declaration that
victim
can
record
her
"Dying
Declaration" is in fact recorded after
death of victim as in ordinary course
doctor should have declared that victim
can give statement and not Dying
Declaration.
The
word
dying
declaration on both the endorsements
reflect that it was added later on, after
the death of victim.

42. Learned counsel submits that
the Doctor who gave a certificate that
the deceased was fully conscious and
can give her statement, never appeared
as a witness and PW-10 has admitted
that his name is also not mentioned as
he has only put his signature over the
seal of the hospital. It is also argued
that it has not come on record that right
thumb impression which was taken by
the Executive Officer, was not having
any
burn
injuries
as
no
such
endorsement was made by the doctor.

43. Counsel has next argued that
even from the Dying Declaration, on
the face value, did not make out that
appellant has committed the offence as
the deceased has stated that she had no
knowledge who had lit the fire and
when her husband exhorted to lit the
fire, the deceased stated that he may do
so.

44. Counsel submits that the
manner in which the Dying Declaration
was recorded showing the mental state
of victim does not reflect that she was
fully conscious and was making the
statement voluntarily.

45. Counsel has next argued that
as per the the statement of PW-1, the
marriage of deceased with appellantDilawar Singh was performed two
years prior to the incident however,
during intervening period of two years,
there was no complaint lodged by the
victim regarding any demand of dowry
or maltreatment or physical abuse by
the accused side.
8 All. Dilawar Singh Vs. State of U.P.
173

46. It is further argued that none of
the witnesses of Panchayatnama namely
Rambir, Satendra, Santveer, Padam
Singh
and
Mahesh
Chand
were
examined as witness to prove the
allegations made in the F.I.R.

47. It is thus argued that the
prosecution has failed to prove the
charge beyond doubt.

48. In reply, learned A.G.A. for
the State has argued that the informant
while
appearing
as
witness
has
supported the prosecution, however,
during cross examination he has taken
the side of accused persons because of
some compromise.

49. Learned A.G.A. has further
argued that the Dying Declaration has been
recorded in accordance with law and has
been duly proved by the Executive
Magistrate (PW-10) who has recorded the
same. It is also argued that before recording
the Dying Declaration, the opinion of the
doctor was taken that the deceased was in a
fit state of mind to record the statement
and, therefore, the Dying Declaration has
been proved in accordance with law and
prayed for dismissal of the appeal.

50. In reply, learned counsel for
the appellant has cited the judgments of
the Supreme Court. In Dattatraya Vs.
State of Maharashtra, 2024 SCC
OnLine SC 223, the Supreme Court
has held as under :

"21. The act of the appellant is
not premeditated, but is a result of
sudden fight and quarrel in the heat of
passion. Therefore, we convert the
findings of Section 302 to that of 304
Part-II, as we are of the opinion that
though the appellant had knowledge
that such an act can result in the death
of the deceased, but there was no
intention
to
kill
the
deceased.
Therefore, this is an offence which
would come under Part-II not under
Part-I of Section 304 of the IPC.

22. On almost similar facts,
(as are present in the case at hand), this
Court had converted the findings of
Section 302 to that of Section 304 Part
II IPC. The case of which reference is
being made here is Kalu Ram v. State of
Rajasthan (2000) 10 SCC 324. The
appellant who had been convicted
under Section 302 IPC for causing
death of his wife by pouring kerosene
on her and then setting her on fire was
convicted by the Trial Court under
Section 302, which was upheld by the
High Court. The facts of the case are as
follows:-

23. In the above case, the
appellant who in an inebriated state
was pressurizing his wife to part with
some ornaments so that he could buy
some more liquor. On her refusal he
poured kerosene on her and set her on
fire by lighting a matchstick. But then
he also tried to pour water on her to
save her. This Court was thus of the
opinion that:

"7. Very probably he would
not have anticipated that the act done
by him would have escalated to such a
proportion that she might die. If he had
ever intended her to die he would not
174 INDIAN LAW REPORTS ALLAHABAD SERIES
have alerted his senses to bring water
in an effort to rescue her. We are
inclined to think that all that the
accused thought of was to inflict burns
to her and to frighten her but
unfortunately the situation slipped out
of his control and it went to the fatal
extent. He would not have intended to
inflict the injuries which she sustained
on account of his act. Therefore we are
persuaded to bring down the offence
from first degree murder to culpable
homicide not amounting to murder.

8. We therefore alter the
conviction from Section 302 IPC to
Section 304 Part II IPC."

24. The facts of the present
case, as we have already discussed
above, by and large reflect the same
situation, nature of crime as well as the
act
of
the
accused
and
the
consequences of his action. We are
inclined to accept the arguments raised
by the learned senior counsel for the
appellant, Mr. Sudhanshu S. Choudhari
that under the present circumstances it
would indeed be a case of culpable
homicide not amounting to murder as
given in Section 304 Part II in as much
as, though the accused had knowledge
of the consequences of the act he was
committing, yet there was no intention
to cause death.

25. The appeal is partly
allowed. We convert the findings of
Section 302 to that of Section 304 Part
II of IPC and sentence the accused to
10 years of R.I. To this extent the
findings given by the trial court and
High Court will stand modified. We
have also been informed that the
appellant
has
already
undergone
incarceration for more than 10 years.
Therefore,
he
shall
be
released
forthwith from the jail, unless he is
required in some other offence."

51.