# Jakir Ali & Anr v. State of U.P

- **Citation:** (2021) 6 ILRA 38
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jakir-ali-anr-v-state-of-u-p-47106
- **Pages:** 23

## Text

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38 INDIAN LAW REPORTS ALLAHABAD SERIES
the occurrence and Zahida told him that
Jakir and Kutti set her to fire after tying her
neck with a rope, set her on fire by
sprinkling kerosene oil on her body. The
medical
report
also
corroborates
the
prosecution case.

14. The trial court observed that though
there is a discrepancy between the medical
report and the post-mortem report of the
deceased about the presence of a ligature
mark over the neck of the deceased, there is a
possibility that after 7 days of her treatment,
ligature mark would have faded on the neck
of the deceased.

15. The trial court further found that the
smell of kerosene oil was present on the body
of the injured Zahida during her medical
examination, immediately after the incident
and a bottle of kerosene oil was recovered
from the spot. This is an admitted fact that,
before the occurrence, there was a dispute
between Jakir and the deceased, due to Jakir's
illicit relation with Kutti.

16. The trial court further found that the
credibility of the dying declaration is not
affected by not examining the doctor, who
was present at the time of recording the dying
declaration of the deceased, as a witness
because PW-7 Gur Saran Lal stated that the
doctor was present at the time of recording
the statement of the deceased. It is settled by
the Apex Court that where the dying
declaration is found truthful and voluntary, it
is not necessary to corroborate the dying
declaration by any other evidence. The trial
court
concluded
that
the
prosecution
successfully proved the charges against the
appellants under Section 302 read with
Section 34 I.P.C., on the basis of the dying
declaration beyond reasonable doubt and
thereby
convicted
and
sentenced
the
appellants as above.

17. Being aggrieved by the trial
court's judgment and order, the appellants
have preferred this appeal.

SUBMISSIONS
BEFORE
THIS
COURT

18. We have heard Sri Dharmendra
Kumar Singh, learned counsel for the
appellants;
Sri
Ratan
Singh,
learned
A.G.A., for the State; and Sri Anirudh
Upadhyay,
learned
counsel
for
the
informant and have perused the record.

19. Learned counsel for the appellants
vehemently urged that Firstly; the dying
declaration of the deceased was a result of
tutoring and prompting because of PW-1
Mohd. Umar and his two other sisters were
present in the hospital before recording the
dying declaration. It is submitted that the
possibility of tutoring the injured Zahida so
as to make statement against the appellants
cannot be ruled out. The dying declaration
was not free, truthful and voluntary.
Secondly; the prosecution failed to prove
that the injured was in a fit state of mind
and condition at the time of recording the
dying declaration because the doctor, who
gave the certificate about the fit condition
of the deceased, has not been examined and
even PW-7 Guru Saran Lal had not asked
any question to the injured whether she was
in a fit state of mind and having a good
mental condition. The credibility of the
dying declaration is affected because it was
not recorded in a question-answer form and
in the word spoken by the deceased.
Thirdly; there are inconsistencies between
the oral statements of the deceased as stated
to PW-1 Mohd. Umar, PW-2 Mohd. Salim
and PW-8 S.I. Satanand Pandey (I.O.)
purported oral dying declarations, one hand
and written dying declaration of the
deceased recorded by PW-7 Guru Saran
6 All. Jakir Ali & Anr. Vs. State of U.P.
39
Lal, on the other hand; the first set
attributed the active role to both the
appellants in the incident, whereas, as per
the written dying declaration, the active
role has been assigned only to the appellant
Jakir Ali. Fourthly; Zahida received burn
injuries in an accident because PW-1
Mohd. Umar told Dr. V.K. Vaid (PW-4) at
2:00 a.m., and for this reason, the medical
report (Ex.Ka.-4) had been endorsed in the
'Accidental Register' and not in the
'Medico-Legal Register'. At the time of the
medical examination, injured Zahida was
conscious,
crying
and
having
the
opportunity to tell the doctor about the
incident but she did not give any statement.
Fifthly; PW-1 lodged the FIR after 15
hours of an unexplained and unreasoned
delay. The appellants have been falsely
implicated due to the enmity of the second
marriage of the appellant no. 1 Jakir Ali.
Sixthly; The dying declaration has been
appreciated by the learned trial court
without any corroboration, therefore, the
prosecution has failed to prove the case
against the appellants beyond all reasonable
doubts. Hence, the impugned judgment and
order are liable to be set aside.

20. Per Contra; learned A.G.A.
submitted that PW-7 Guru Saran Lal,
Executive
Magistrate/Naib
Tehsildar
recorded the dying declaration of the
deceased in presence of a doctor after
obtaining a certificate with regard to the fit
state of mind and condition of the
deceased.
There
is
no
inconsistency
between the oral dying declarations and the
written dying declaration of the deceased.
Both the appellants carried out the incident
in a planned manner when the deceased
was sleeping with her two young children
on the roof of the house. To stop the
deceased from making a noise, her neck
was tied with a rope, then kerosene oil was
poured over her body, burnt her while she
was asleep and the appellants fled away.
PW-2 Mohd. Salim as neighbour and an
independent witness, who reached at the
spot within a minute of the incident, saw
the appellants running away from the spot.
Learned trial court has rightly held the
appellants guilty; the findings recorded by
the trial court are on appreciation of the
evidence, which is neither perverse nor
contrary to the evidence on record; the
charges levelled against the appellants had
been proved beyond reasonable doubts.
Thus, their conviction and sentence do not
warrant any interference. The judgment and
order of the trial court is liable to be
affirmed. A prayer was, therefore, made to
dismiss the appeal.

21. Learned counsel for the informant
Sri
Anirudh
Upadhyay
adopted
the
submissions made by learned A.G.A.

ANALYSIS
OF
THE
PROSECUTION EVIDENCE:

22. Before we proceed to consider the
respective
submissions,
it
would
be
appropriate to notice the arguments on
behalf of the appellants in detail. The
appellants' arguments are: Firstly; the
deceased received injuries in an accident,
after concealing this fact, the FIR has been
lodged after recording the dying declaration
with consultation and deliberation after
about 15 hours an unexplained delay of the
incident by PW-1 Mohd. Umar, which
emerges from the following circumstances:

(a) Medical report (Ex.Ka.-4) of the
injured was endorsed in the accidental
register by PW-4 Dr. V.K. Vaid, on the
instance of PW-1 Mohd. Umar, who
brought the injured for treatment at C.H.C.
Etwa at 2:00 a.m. on 17.7.2011 and PW-4
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Dr. V. K. Vaid examined the injured. At
that time the injured was conscious and
crying, but deceased did not tell anything to
the doctor (PW-4) regarding the incident.

(b) The theory of strangulation is
failed because as per medical report
(Ex.Ka.-4) injury No. 1 is found as a
ligature mark around the neck of the
deceased but this ligature mark was not
found at the time of the post-mortem.

(c) Two children Rehana (aged about
18 years) and Babbu (aged about 14 years),
who were sleeping adjacent to the deceased
on another cot and saved the deceased after
the incident, were not questioned by the
investigating officer and have also not been
examined by the prosecution.

(d) The mattress on which the injured
was sleeping at the time of the incident and
rope by which it was alleged that the
appellant Jakir had tied the neck of the
deceased, were not recovered during the
investigation.

(e) The FIR of the instant case was
registered at 16:30 hours on 17.7.2011; The
investigating officer PW-8 inspected the
spot on 19.7.2011 and recovered a bottle of
kerosene oil from the spot, the investigation
of the present case was not started
promptly, and incriminating articles were
recovered on the third day of the incident,
alleged recovery loses its importance on
account of the delay.

Secondly; there is a discrepancy with
regard to the involvement of the appellant
Kutti in the incident between the oral
statements of the injured as told to PW-1
Mohd. Umar, PW-2 Mohd. Salim and PW8 S.I. Satanand Pandey (I.O.) on one hand
and dying declaration (Ex.Ka.-7) recorded
by PW-7 Guru Saran Lal, on the other
hand. In support thereof, it has been
pointed out that:

(a) PW-1 Mohd. Umar and PW-2
Mohd. Salim have attributed the active role
to both the appellants Jakir Ali and Kutti in
the incident as they stated that Jakir and
Kutti together set fire to Zahida by
sprinkling kerosene oil on her body and her
neck was also tied by a rope; whereas, as
per the dying declaration (Ex.Ka.-7), the
appellant Kutti has not attributed any role
in the incident. According to the dying
declaration, her husband came to the roof
and poured kerosene oil on her body, after
which he tried to kill her by tying a rope
around her neck, then he lit a matchstick
and set fire on her clothes.

Thirdly; The injured was not in a fit
state of mind and condition at the time of
recording the dying declaration recorded by
PW-7 Gur Saran Lal because:

(a)
The
doctor,
who
gave
the
certificate about the fit condition of the
deceased at the time of recording the dying
declaration was not examined;

(b) PW-7 Guru Saran Lal did not ask
any question to the injured at the time of
recording her statement as to whether she
was in a fit state of mind and had a good
mental condition.

Fourthly; The dying declaration was a
result
of
tutoring,
prompting
and
imagination and was not free, truthful and
voluntary. The credibility of the dying
declaration is affected because:

(a)
The
dying
declaration
was
recorded after a delay of 12 hours to the
incident.

(b) The dying declaration was not
recorded in question-answer form and the
word spoken by the deceased.

(c) The informant and his two other
sisters were already present in the hospital
on 17.7.2011 with the injured before
recording the dying declaration.
6 All. Jakir Ali & Anr. Vs. State of U.P.
41

23. Before we proceed to dwell upon
the merit of the contentions raised before
us, it will be apposite to have close scrutiny
of the entire ocular evidence, which is as
follows:-

24. PW-1 Mohd. Umar (aged about
46 years) stated in his examination-in-chief
that Zahida was his real sister, she was
married to Zakir in 1992, out of this
wedlock 6 children were born. About three
months ago, Jakir had kept Kutti as his
wife. Whenever his sister protested, Jakir
used to beat Zahida. For this reason, on
yesterday night 16/17.7.2011, both Jakir
and Kutti together tried to kill her by tying
a rope around Zahida's neck, then setting
her ablazed by pouring kerosene oil. Many
people had witnessed the incident and
informed him about the same. On getting
the information, he reached the spot and
saw his sister excessively burnt. He took
Zahida
to
Etwa
Hospital
then
to
Siddarthanagar Hospital for treatment.
During the treatment, the Magistrate
recorded Zahida's statement. Zahida died in
the hospital.

25. PW-1 further stated in his
statement-in-chief that before this incident,
Jakir had threatened several times to kill his
sister. On 7.6.2011 and 14.7.2011, Zahida
gave information to the police about the
danger to her life. Even 10 days before the
incident in question, Jakir had beaten
Zahida, her father-in-law had informed the
police on 25.6.2011 about the incident. In
this regard, a written compromise was
prepared. His sister had given all the
documents to him before her death.

26. PW-1 Mohd. Umar in his crossexamination stated that his village is 1 Km
away from village-Bahuti. The call for
information about the incident was received
by his wife so he could not tell as to who
had informed him about the incident. This
information was received at night, it is not
known at what time the information was
received. He reached the spot at night.
Abdul Mannan went with him. When he
reached the spot, the whole village was
gathered. At that time, his sister was
standing in the verandah (Oasara), people
were supporting her. He did not ask his
sister about the burning and neither did
anyone tell him. Zahida had told him about
her burning, this fact has not been written
in the report. He had told the investigating
officer, if it is not written in his statement,
he cannot disclose the reason.

27. He further stated in his crossexamination that he first took Zahida by car
to Etwa Hospital, she was crying and
cursing. She stayed in the Etwa Hospital
for about an hour and was then referred to
district
hospital
Siddharthnagar
for
treatment. He reached the district hospital
along with the injured early in the morning.
During her admission to the district
hospital, he stayed there, sometimes, he
used to go to home. He does not remember
after how many days, he left the hospital
for the first time. On the day, his sister was
admitted to the hospital, he had also gone
to the police station leaving Zahida under
the supervision of his two other sisters.

28. PW-1 stated further in his crossexamination that the eldest daughter of his
sister is sixteen years old and the youngest
child must be five years old. He could not
see the children at the place of the
occurrence because there were many
people present. At that time, he did not find
the children.

29. The following suggestions have
been asked from this witness.
42 INDIAN LAW REPORTS ALLAHABAD SERIES

It is wrong to say that there was no
love affair between Jakir and Kutti. It is
wrong to say that he had told the doctor
that his sister was accidentally burnt. It is
wrong to say that Zahida is accidentally
burnt. It is wrong to say that for this reason,
the report was written late. It is wrong to
say that he wants to marry his son to the
daughter of Jakir and he had attempted
many times. It is wrong to say that he and
his two sisters had put pressure on Zahida,
saying that if she does not give statements
according to them, they would not provide
treatment to her. It is wrong to say that
because of the above reasons, he and his
two sisters had pressurized Zahida for
giving a false statement. It is wrong to say
that no application has been given before
the incident.

30. It is noteworthy that on behalf of
the appellants, no question was put to the
witness about how the accident took place.
This fact is not disputed that the deceased
told the witness about the incident. No
suggestion was asked about the oral dying
declaration made by the deceased to this
witness. These facts that Jakir had beaten
Zahida 10 days before the incident, and he
had threatened several times to kill Zahida,
are also not disputed. It is significant that
without disputing the fact of tutoring by
PW-1, the suggestion of tutoring to the
deceased was asked to the witness. On
behalf of the appellants, neither the time of
the
incident
was
disputed
nor
any
suggestion on this fact was made. There is
no dispute regarding the source of light to
identify the appellants at the time of the
incident by the deceased.

It is noticeable that the appellants did
not contradict the fact that the deceased had
told PW-1 about her burning, whereas PW8 S.I. Satanand Pandey (I.O.) stated that
PW-1 Mohd. Umar told him about the
deceased's oral statement regarding the
incident.

31. PW-2 Mohd. Salim (aged about
33 years) stated in his statement-in-chief
that Kutti is the daughter of Hussaini of the
village, Jakir had an illicit relation with
Kutti. Zahida was unhappy about this and
for this reason, he used to beat her up.
Panchayat was also held regarding their
illicit relation.

32. PW-2 Mohd. Salim stated further
in his examination-in-chief that the incident
took place at midnight, about one and half
years ago. At that time he was lying on his
roof. After hearing the cries of Zahida, he
rushed to the spot, and at that time, other
people were also present there. He saw
Jakir and Kutti running away. Zahida was
burning, he pulled the burning clothes of
Zahida and covered her body with a
bedsheet. At that time, Zahida told him that
Jakir and Kutti tied a rope around her neck
and poured kerosene oil on her, and set her
ablaze. He informed Zahida's brother about
the incident from his mobile.

33. PW-2 Mohd. Salim in his crossexamination stated that Jakir used to live
with Kutti, in Kutti's house, which is
situated outskirts of the village, about five
hundred steps away from Jakir's house.
There was a dispute between Jakir and
Zahida due to his illicit relation with Kutti,
which had been going on for five to six
years. Zahida was living in Jakir's house
and her father-in-law was maintaining her
house.

34. PW-2 Mohd. Salim in his crossexamination further stated that the place of
incident is ten steps away from his house,
there is no other house situated between his
6 All. Jakir Ali & Anr. Vs. State of U.P.
43
house and the place of incident. It would
have taken him about half a minute to reach
on the spot after hearing the cries. He was
not aware whether the main door of
Zahida's house was open or not at that time.
Zahida was sleeping on the roof of a twostoreyed house. When she was coming
downstairs and only two steps were left to
come down, the fire was visible on her
body. He put a bedsheet over her. Zahida's
hands and feet were burnt. He was not
aware as to what other parts of her body
had been burnt. The mattress on which, she
slept was burnt. Zahida's brother reached
the spot within ten minutes after the
incident. The village Bagulhawa is less
than one Km from the spot. Zahida's
brother took her to the hospital.

35. He further stated in his crossexamination that Zahida's two children,
Rehana (aged about 18 years) and Babbu
(aged about 14-15 years) were crying and
screaming after seeing their mother.
Rehana and Babbu were present on the
spot before he arrived. The other four
children were sleeping outside in the
Sahan. He does not know whether
Zahida's children, who were sleeping in a
Sahan (front courtyard) had any woman
or man sleeping there. He is Jakir's
neighbour.
Jakir
had
contested
the
election of village Pradhan. He does not
know that after Jakir's marriage with
Kutti what did his father do about the
property of Jakir. Jakir had a licensed
weapon.

36. On behalf of the appellants, only
one suggestion was asked from this
witness that it is wrong to say that he has
given false evidence due to the enmity of
the village election, without disputing the
fact of aforesaid enmity.

37. It is important to note that the
appellants have not disputed the material
facts of his testimony: firstly; the incident
took place at midnight on 17.7.2011, he had
reached the spot within a minute after the
incident and at that time there were many
other villagers present, secondly; he had
saved the deceased after the incident and the
deceased had told him about the incident,
thirdly; he had seen the appellants running
away from the place of the incident, fourthly;
Jakir had illicit relations with Kutti and a
Panchayat was held about the illicit relations
between the appellants, sixthly; he informed
Zahida's brother about the incident from his
mobile. Significantly, there is no dispute
regarding the source of light to identify the
appellants at the time of the incident by the
deceased.

38. PW-3 Ameerullah (witness of the
inquest report) in his examination-in-chief
stated that Zahida was his maternal sister and
the inquest report was prepared in his
presence. He stated in his cross-examination
that the body was sealed so, he could not see
the dead body.

It would be appropriate to notice that
there is no dispute with regard to the
identification of the body of the deceased in
the instant case.

39. PW-4 Dr. V. K. Vaid stated in his
examination-in-chief that he had examined
the injuries on Zahida's (aged about 37
years) body on 17.7.2011 at 2:00 a.m.,
whom his brother Mohd. Umar had brought
to the hospital. The following injuries were
present on her body.

(1) A ligature mark around the neck
about 1 cm breadth x 30 cm all around on
the neck, red in colour, glistering present
44 INDIAN LAW REPORTS ALLAHABAD SERIES
from the occipital bone on the back and in
front hyoid cartilage involved circular.

(2) Superficial to deep burn of the
whole of the back, both thigh, right leg,
both upper arms and forearms, both hands,
and some part of the chest, the upper part
of the abdomen.

A smell of kerosene oil was present.
Face, head, left leg, some part of the chest,
and perineum not involved.

40. PW-4 Dr. V.K. Vaid further stated
in his examination-in-chief that injury no. 1
(strangulation) was dangerous to life, red in
colour and fresh, and injury no. 2 was a
flame burn about 80%. He had informed
the police. The injured was referred to the
District Hospital Siddharthnagar for further
treatment after giving first aid.

41. PW-4 Dr. R. K. Vaid in his crossexamination stated that the medical report
has been endorsed in the accidental
register. Mohd. Umar said that she was
burnt. He did not ask Zahida as to how she
was burnt, he had also not asked about her
burning. At that time she was groaning and
screaming. The ligature mark was present
on the lower part of the occipital bone.

42. It is noteworthy that the injured
was brought to C.H.C. Etwa immediately
after the incident, at that time the injured
was groaning and screaming. A ligature
mark was found all around the neck of the
injured and 80% of burn injures were found
on the body of the injured. Significantly,
the appellants have not disputed the above
injuries found on the body of the injured
and it has also not been disputed that why
he informed the police while he endorsed
the injuries in the 'Accidental Register'. The
question has not been asked to this witness
if a ligature mark on the neck and 80%
burn injuries could occur in the accident. It
would be appropriate to highlight the fact
that PW-1 Mohd. Omar had only told PW4 about the burn and had not disclosed as to
how she received the burn injuries.

43. PW-5 CP 233 Ram Sumer Yadav
(scribe) in his statement-in-chief stated that
he had registered the FIR as Case Crime
no. 44 of 2011 under Section 307 IPC at PS
Golhaura District Sidharthnagar on the
basis of the informant's written complaint
and endorsed it in G.D. Report No. 20 at
16.30 hours.

44. PW-5 CP Ram Sumer Yadav in
his cross-examination stated that the time
of the incident in Chik FIR is written
according to the complaint. Time has not
been disclosed in the written complaint of
the informant.

45. At this stage, it would be
appropriate to highlight that as per the
complaint (Ex.Ka.-5), the incident took
place
on
the
intervening
night
of
16/17.7.2011 on the roof of the twostoreyed house of the appellant Jakir Ali. It
is noteworthy that the appellants have not
disputed the timing of the incident to
Mohd. Umar (PW-1).

46. PW-6 Dr. R. K. Verma, who
conducted post-mortem in his examinationin-chief stated that on 23.7.2011 at 3:30
p.m. he conducted the post-mortem of the
dead body of Zahida Khatoon, which was
brought in a very critical condition.
Deceased was simple height saddle, aged
about 38 years, mouth and eyes were halfopen, rigor mortis was present on all four
limbs. He found the following injuries:

A- Superficial to deep burn grade I
and II injuries present on whole back,
6 All. Jakir Ali & Anr. Vs. State of U.P.
45
below the chest whole abdomen, whole
right lower limb from thigh to foot sole,
whole left limb (front and back) above knee
total burn injury is 60%.

B- Puss was present here and there.

C- Redness in the shape of lines is
present.

PW-6 stated in his cross-examination
that no sign of strangulation was found on
the body of the deceased.

47. It is noteworthy that in the
medical report (Ex.Ka.-4) prepared at 2:00
a.m. on 17.7.2011, wherein a ligature mark
was found all around the neck of the
deceased. The post-mortem was conducted
on 23.7.2011 at 3:30 p.m. after 6 days 13
hours and 30 minutes after the medical
examination. The appellants have not put
any question on the above opinion about
the nature of the ligature mark.

48. PW-7 Guru Saran Lal (Naib
Tehsildar/who recorded dying declaration)
in his examination-in-chief stated that he
recorded the dying declaration of Zahida
(aged about 37 years) on 17.7.2011 at
District Hospital Sidharthnagar. Before
taking the statement, he had taken a
certificate from the doctor to the effect that
Zahida was able to give her statement. He
had written whatever Zahida told him.
Zahida had put her thumb impression after
reading and listening her statement. After
taking the statement, he took another
certificate from the doctor about the mental
condition of the injured during and after the
statement.

49. PW-7 Guru Saran Lal in his crossexamination stated that the place where the
statement was written, is not mentioned in
the statement. He did not ask the injured
about her name and her mental condition.
At that time, there was no one present
besides the doctor and the injured. He had
taken the thumb impression of the injured.

It was suggested that it is wrong to say
that he has not recorded any statement of
the deceased, he prepared the statement on
the direction of the informant.

50. It is noteworthy that the appellants
have not disputed the facts: firstly; this
witness recorded the dying declaration of
Zahida after obtaining the certificate of the
doctor, secondly; the doctor endorsed that
the injured was in a fit state of mind after
and during recording the statement, thirdly;
at the time of recording the dying
declaration, only three persons i.e. this
witness, injured and the doctor were
present there, fourthly; the mode of the
recording of the dying declaration, fifthly;
about the statement as stated by the
deceased and her mental condition at the
time of recording her statement.

It is also significant that no suggestion
was asked to this witness about the
narration of the incident as stated by the
injured and the mental condition of the
injured.

51. PW-8 S.I. Santanand Pandey
(I.O.)
deposed
that
he
started
the
investigation of Case Crime No. 444 of
2011 on 17.7.2011, he arrested Jakir on
18.7.2011. On 19.7.2011, he recorded the
statement of the injured Zahida, informant
Mohd. Umar, Anwar, Mohd. Salim and he
prepared the site plan after inspecting the
incident place on the instance of the
informant and his relatives. After the death
of Zahida, on 24.7.2011, Section 302 I.P.C.
was added by S.I. Shiv Charan Yadav, on
that day he was on leave. He received the
inquest report of Zahida on 27.7.2011 and
was informed about the surrender of Kutti
46 INDIAN LAW REPORTS ALLAHABAD SERIES
on the same day. He received the postmortem report on 31.7.2011 and submitted
the charge sheet before the court on
10.8.2011. He proved the inquest report and
other police papers, which have been
prepared by S.I. Bhawani Prasad Upadhyay,
as secondary evidence respectively as
Ex.Ka.-3, Ex.Ka.-12, Ex.Ka.-13, Ex.Ka.-14,
Ex.Ka.-15.

52. PW-8 S.I. Santanand Pandey in his
cross-examination stated that he did not
question the children of Zahida. Her children
were indeed residing with her. The children
of the deceased were sleeping there at the
time of the incident but no inquiries were
made to the children regarding the incident
because they were young. He had questioned
the eldest daughter of the deceased but did
not record her statement. It is true that
Rehana the eldest daughter of the deceased
was about thirteen years old.

53. He further in his cross-examination
stated that during the investigation, he found
some signs of burning at the place of the
incident. He depicted the point 'A' in the site
plan, where the burning mattress and clothes
were found. There was blackening on the
adjoining wall of the place of incident, which
resulted from the smoke, but it has not been
shown in the site plan. He questioned Abul
Haleem, Nur Mohd., who lived near the place
of the incident, he did not take Rahish's
statement, because he was not present there.
Mohd. Umar told him that his sister told him
about her burning when he reached the spot.
He knew during the investigation that Jakir
used to come to the house of the deceased
and also that he resided in some other place.

It is suggested by the appellants that it
is not correct to say that he had not
recorded the statement of children because
they knew the real facts.

54. It is noteworthy that the appellants
have not disputed the oral statement of the
injured Zahida, which has been recorded
during the investigation on 19.7.2011 under
section 161 of Cr. PC. There is no dispute
about the fact that Mohd. Umar (PW-1)
told that his sister told him about her
burning. It is noticeable that this witness
has not stated anything in his examinationin-chief about the incident as recorded
under Section 161 Cr. PC.

55. At this stage, It would be
appropriate
to
mention
the
dying
declaration of the Smt. Zahida was
recorded by PW-7 Gur Saran Lal between
1:50 p.m. to 2:00 p.m. on 17.7.2011, reads
as under:

"Patient is sound mental condition for
statement

Sd-
17.7.11
1:50 p.m.
(E.M.O.5)
Distt. Hospital
Sidharthnagar

eS tkfgnk [kkrwUk iRuh tkfgn vyh mez yXkHkx 37
o"kZ eqlyeku 1⁄4efugkj1⁄2 xzke cgqrh Fkkuk xksYgkSj
cgyQ c;ku djrh gwa fd vkt jkr 1-30 cts ?kj ds
nwljs eafty Nr ij lksbZ Fkh cxy ds pkjikbZ ij 2
cPps lks jgs Fks 4 cPps uhps lks;s FksA esjk ifr Nr ij
ml le; vk;k rFkk feV~Vh dk rsy esjs 'kjhj ij
Mky fn;k rFkk esjs xys esa jLlh yxkdj dl fn;k
mlds ckn jLlh [khap dj ekj Mkyus dh dksf'k'k
fd;s rFkk ekfpl tykdj esjs diM+s esa vkx yxk fn;s
eS tyus yxhA esjs 'kksj epkus ij esjk vkneh tkfdj
o mldh nwljh vkSjr dV~Vh iq=h gqlsuh fu0 xzke
cgqrh eq>s NksMdj Hkkx x;s mlds ckn esjs cPps rFkk
xkao ds yksx vkdj eq>s cpk;s rFkk Qksu djus ij esjs
HkkbZ vkdj eq>s ykdj vLirky es HkrhZ fd;s eq>s
tykdj ekjus dh fu;r ls esjk vkneh tkfdj iq=
vCnqYyk o mldh nwljh vkSjr dqV~Vh us bl ?kVuk
dks vUtke fn;k blesa nksuks nks"kh gSA C;ku lqudj
rLnhd fd;kAß
6 All. Jakir Ali & Anr. Vs. State of U.P.
47

C;ku
vafdr
fd;k
fu0 va0 tkfgnk [kkrwu

g0 vi0

17-7-11

,u0 Vh0 2-00 ih0 ,e0

Patient was in sound mental condition
during and after statement.

Sd-
17.7.11
2:10 p.m.
(E.M.O.)
Distt. Hospital
Sidharthnagar

56. The translated version of the dying
declaration is as follows:

"I Zahida Khatoon wife of Zakir Ali, aged
about 37 years Muslim (Manihar) village
Bahuti police station, Golhaura, said on
oath that tonight at 1:30 a.m., she slept on
the roof of the two-storied house two
children were sleeping on the adjacent cot,
four children slept on the ground floor. My
husband came to the roof at that time and
poured kerosene oil on my body and
tightened my neck with a rope around my
neck and tried to kill me by tying the rope
and set fire to my clothes by burning
matchstick. I started burning. After upon
making hue and cry by me, my husband
Jakir and his other woman Kutti daughter
of Hussaini resident of Bahuti fled away
leaving me alone, after that my children
and people of the village saved me, and on
call, my brother who came and admitted
me to the hospital. My husband Jakir son of
Abdullah and another woman Kutti carried
out this incident, both of them are guilty.

57. DW-1 Juber Ali (aged about 15
years, son of the deceased) stated in his
examination-in-chief that on the night of
the incident, he and his sister Rubina slept
on the roof with his mother. His eldest
sister and the other three sisters were
sleeping on the ground floor. The night
before the incident, after asking his mother,
he went to the toilet, which is located on
the ground floor and he slept there. After
half an hour, he heard cries of his mother
"Bachao Bachao" and she came down
screaming. After that, the people of the
vicinity had come. He had not seen anyone
on the roof of the house. His father got
married to a girl from the village, whose
house is situated in the village. His father
lived in Bombay and when he came, used
to live with his second wife. His mother
and his sister lived with him in the house.

58. DW-1 Juber Ali in his statementin-chief stated further that his maternal
uncle had brought his mother to a hospital
with a cloth. He went to the hospital with
his grandmother and grandfather 2 or 3
days later. He saw his maternal uncle and
his mother were talking but could not hear
properly. He did not hear his maternal
uncle telling his mother that if she did not
say as told, he would not get her treated.

59. DW-1 Juber Ali stated in his
cross-examination that his father kept
Kutti. It is right to say that due to Kutti,
there was a dispute between his parents. He
did not see how the mother caught fire. But
he woke up soon after the mother was set
on fire. He is studying in class 8th.

60. It is noteworthy that DW-1 Juber
Ali did not say anything about the injuries
sustained by the deceased in the accident;
the tutoring and prompting by the near
relatives of the deceased before the dying
declaration, and also about the presence of
the appellants in the house of the incident
before the occurrence. Inspite of that, it is
48 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed on behalf of the appellants that the
children
have
not
been
deliberately
included in the investigation and trial.

61. Now we shall weigh the argument of
learned counsel for the appellants that the
prosecution has failed to prove the fit state
of mind of the deceased at the time of the
recording of her dying declaration. The
dying declaration (Ex.Ka.-7) was not
recorded in a question-answer form and in
the words spoken by the deceased. It was a
result
of
tutoring,
prompting
and
imagination and should not be acted
without its corroboration.

It is noticeable that it was suggested to
PW-1 Mohd. Umar that there was no love
affair between Jakir and Kutti; whereas, to
the
contrary,
DW-1
stated
in
his
examination-in-chief that his father got
married to Kutti, and his father used to live
with his second wife.

62. Before we analyse the prosecution
evidence it would be important to note
certain case laws with regard to the
importance, acceptability, reliability, and
admissibility of a dying declaration. The
law on the subject has been clearly and
explicitly enunciated by the Apex Court in
various judgments. In Khushal Rao v.
State of Bombay AIR 1958 SC 22 where
His lordship B.P. Sinha J., observed as:
(AIR, p. 28-29, para 16 and 17)

"16. On a review of the relevant
provisions of the Evidence Act and of the
decided cases in the different High Courts
in India and in this Court, we have come to
the conclusion, in agreement with the
opinion of the Full Bench of the Madras
High Court, aforesaid, (1) that it cannot be
laid down as an absolute rule of law that a
dying declaration cannot form the sole
basis
of
conviction
unless
it
is
corroborated; (2) that each case must be
determined on its own facts keeping in view
the circumstances in which the dying
declaration was made; (3) that it cannot be
laid down as a general proposition that a
dying declaration is a weaker kind of
evidence than other pieces of evidence; (4)
that a dying declaration stands on the same
footing as another piece of evidence and
has to be judged in the light of surrounding
circumstances and with reference to the
principles governing the weighing of
evidence; (5) that a dying declaration
which has been recorded by a competent
magistrate in the proper manner, that is to
say, in the form of questions and answers,
and, as far as practicable, in the words of
the maker of the declaration, stands on a
much
higher
footing
than
a
dying
declaration which depends upon oral
testimony which may suffer from all the
infirmities of human, memory and human
character, and (6) that in order to test the
reliability of a dying declaration, the Court
has to keep in view the circumstances like
the opportunity of the dying man for
observation, for example, whether there
was sufficient light if the crime was
committed at night; whether the capacity of
the man to remember the facts stated, had
not been impaired at the time he was
making the statement, by circumstances
beyond his control; that the statement has
been consistent throughout if he had
several opportunities of making a dying
declaration apart from the official record
of it; and that the statement had been made
at the earliest opportunity and was not the
result of tutoring by interested parties.

17. Hence, in order to pass the test of
reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has been
made in the absence of the accused who
6 All. Jakir Ali & Anr. Vs. State of U.P.
49
had no opportunity of testing the veracity of
the statement by cross-examination. But
once, the Court has come to the conclusion
that the dying declaration was the truthful
version as to the circumstances of the death
and the assailants of the victim, there is no
question of further corroboration.

If on the other hand, the Court, after
examining the dying declaration in all its
aspects, and testing its veracity, has come
to the conclusion that it is not reliable by
itself, and that it suffers from an infirmity,
then, without corroboration it cannot form
the basis of a conviction. Thus, the
necessity for corroboration arises not from
any
inherent
weakness
of
a
dying
declaration as a piece of evidence, as held
in some of the reported cases, but from the
fact that the Court, in a given case, has
come to the conclusion that that particular
dying declaration was not free from the
infirmities, referred to above or from such
other infirmities as may be disclosed in
evidence in that case."

63. The above observations made by
the Apex Court were duly endorsed in
Harbans Singh v. State of Punjab6
(Constitution Bench) and Tapinder Singh
v. State of Punjab7.

64.
In
Laxman
v. State
of
Mahrashtra
(2002)
6
SCC
710
(Constitution Bench), the Apex Court
observed as under: (SCC p.713-14, para 3)

"3. The juristic theory regarding
acceptability of a dying declaration is that
such declaration is made in extremity,
when the party is at the point of death and
when every hope of this world is gone,
when every motive to falsehood is silenced,
and the man is induced by the most
powerful consideration to speak only the
truth. Notwithstanding the same, great
caution must be exercised in considering
the weight to be given to this species of
evidence on account of the existence of
many circumstances which may affect their
truth. The situation in which a man is on
the deathbed is so solemn and serene, is the
reason in law to accept the veracity of his
statement. It is for this reason the
requirements
of
oath
and
crossexamination are dispensed with. Since the
accused
has
no
power
of
crossexamination, the courts insist that the dying
declaration should be of such a nature as
to inspire full confidence of the court in its
truthfulness and correctness. The court,
however, has always to be on guard to see
that the statement of the deceased was not
as a result of either tutoring or prompting
or a product of imagination. The court also
must further decide that the deceased was
in a fit state of mind and had the
opportunity to observe and identify the
assailant.