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

- **Citation:** (2021) 6 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-13
- **Case number:** Criminal Appeal No. 100 of 2014
- **Bench:** Bachchoo Lal, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jakir-ali-anr-v-state-of-u-p-opp-party-47076
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 read with Section 34 -
Code of Criminal Procedure, 1973
-
Section 161, 162 (2) , Section 313 - Indian
Evidence Act, 1872 - Section 32(1) -
Conviction - Dying declaration - Illicit
relations - Burn injury - Where the dying
declaration
is
found
truthful
and
voluntary,
it
is
not
necessary
to
corroborate the dying declaration by any
other evidence. (Para - 16)

Appellants together set fire to deceased by
sprinkling kerosene oil, her neck was also tied
by a rope - 80% of burn injury - guilty for
offence punishable under Section 302 read with
Section 34 I.P.C. . - Conviction and sentence
awarded to the appellants by trial court.

HELD:- The trial court rightly found the dying
declaration , truthful and trustworthy and the
circumstances surrounding the dying declaration
are clear and convincing, it can be acted upon
without corroboration to hold the prosecution
successfully proved the charge under Section
302 read with Section 34 I.P.C. against the
appellants . The findings of the trial court are
based on proper appreciation of the evidence.
The injuries on the body of the deceased fully
support the prosecution case. Trial court did not
commit
any
error
in
convicting
the
appellants.(Para - 102)

Criminal Appeal dismissed. (E-6)

List of Cases cited:-

## Text

34 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)06ILR A34
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 100 of 2014

Jakir Ali & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Rashtrapati Khare, Sri Dharmendra Kumar
Singh, Sri Y.C. Yadav

Counsel for the Opp. Party:
A.G.A., Sri Anirudh Upadhyay

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 read with Section 34 -
Code of Criminal Procedure, 1973
-
Section 161, 162 (2) , Section 313 - Indian
Evidence Act, 1872 - Section 32(1) -
Conviction - Dying declaration - Illicit
relations - Burn injury - Where the dying
declaration
is
found
truthful
and
voluntary,
it
is
not
necessary
to
corroborate the dying declaration by any
other evidence. (Para - 16)

Appellants together set fire to deceased by
sprinkling kerosene oil, her neck was also tied
by a rope - 80% of burn injury - guilty for
offence punishable under Section 302 read with
Section 34 I.P.C. . - Conviction and sentence
awarded to the appellants by trial court.

HELD:- The trial court rightly found the dying
declaration , truthful and trustworthy and the
circumstances surrounding the dying declaration
are clear and convincing, it can be acted upon
without corroboration to hold the prosecution
successfully proved the charge under Section
302 read with Section 34 I.P.C. against the
appellants . The findings of the trial court are
based on proper appreciation of the evidence.
The injuries on the body of the deceased fully
support the prosecution case. Trial court did not
commit
any
error
in
convicting
the
appellants.(Para - 102)

Criminal Appeal dismissed. (E-6)

List of Cases cited:-

1. Khushal Rao Vs St. of Bombay, AIR 1958 SC
22

2. Harbans Singh Vs St. of Punjab, AIR 1962 SC
439

3. Tapinder Singh Vs St. of Punjab,1972 SCC
113

4. Laxman Vs St.of Mah., (2002) 6 SCC 710

5. Paniben Vs St. of Guj. (1992) 2 SCC 474

6. Khushal Rao Vs St. of Bombay, AIR 1958 SC 22

7. Harbans Singh Vs St.of Punj., AIR 1962 SC
439

8. Gopal Singh Vs St. of M.P., (1972) 3 SCC 268

9. Ram Bihari Yadav Vs St. of Bihar, (1998) 4
SCC 517

10. Ramilaben Hasmukhbhai Khristi Vs St. of
Guj. , (2002) 7 SCC 56

11. Bhajju Vs St. of M.P., (2012) 4 SCC 327

12. Suresh Chandra Jana Vs St.of W.B., (2017)
16 SCC 466

13. St. of U.P. Vs Ram Sagar Yadav, (1985) 1
SCC 552

14. Madan @ Madhu Patekar Vs St.of Mah.,
(2019) 13 SCC 464

15. Puran Chand Vs St. of Har., (2010) 6 SCC
566

16. Stat. of Raj. Vs Ganwara, (2019) 13 SCC
687

17. Kundula Bala Subrahmanyam Vs St.of A.P.,
(1993) 2 SCC 684
6 All. Jakir Ali & Anr. Vs. State of U.P.
35
18. Amol Singh Vs St. of M.P., (2008) 5 SCC 468

19. Mukeshbhai Gopalbhai Barot Vs St. of Guj.,
(2010) 12 SCC 224

20. Sri Bhagwan Vs St. of U.P., (2013) 12 SCC
137

21. Pradeep Bisnoi Vs St. of Orissa, (2019) 11
SCC 500

22. Ram Bihari Yadav Vs St. of Bihar & ors.,
(1998) 4 SCC 517

23. Prem Kumar Gulati Vs St. of Har., (2014) 14
SCC 646

24. Satish Chandra Vs St. of M.P, (2014) 6 SCC
723

25. Satpal Vs St. of Har., Criminal Appeal no.
261 of 2021

26. Shudhakar Vs St. of M.P. , 2012 Cr.L.J 3985
(SC)

27. Noor Mohammad Mohd. Yusuf Momin Vs St.
of Mah., (1970) 1 SCC 696

28. Balvir Singh Vs St. of M.P., (2019) 15 SCC
599

29. Maqsoodan Vs St. of U.P., (1983) 1 SCC 218

30. Sathi Prasad Vs The St. of U.P., (1972) 3
SCC 613

31. Ram Bihari Yadav & ors. Vs St. of Bihar &
ors., (1995) 6 SCC 31

(Delivered by Hon'ble Sanjay Kumar Pachori, J.)

1. This appeal has been preferred by
appellants, namely Jakir Ali, Kutti @
Alimunnisha against the judgment and order
passed by Additional Sessions Judge, Court
No.
1
Sidharthnagar,
respectively
on
11.12.2013 and 12.12.2013 in Sessions Trial
No. 182 of 2011 arising out of case Crime
No. 444 of 2011, police station Golhaura,
District
Sidharthnagar,
whereby
the
appellants have been convicted under section
302 read with section 34 Indian Penal Code
(in short "I.P.C.") and sentenced to undergo
imprisonment for life and a fine of Rs.
10,000/- each with default sentence of two
months.

PROSECUTION CASE

2. The prosecution case in brief as per
first information report1 (Ex.Ka.-5), which
was lodged on 17.7.2011 at 4:30 a.m. at PS
Golhaura, District Sidharthnagar by Mohd.
Umar (PW-1) is that his sister Zahida
(deceased) was married to Jakir in the year
1992, and out of this wedlock, 6 children
were born. Her eldest daughter is about 15-16
years old. About three months prior to the
incident, Jakir had kept Kutti as his wife.
Jakir used to beat Zahida when she protested
about his illicit relations. On the intervening
night of 16/17.7.2011, Jakir and Kutti
together set fire to Zahida by sprinkling
kerosene oil, her neck was also tied by a rope.
Anwar Ali (not examined) and Mohd. Salim
(PW-2) and many other people had come on
the spot upon hearing the cries of his sister
and after saving her, informed him about the
incident. He took Zahida to Etwa Hospital
with the help of the other villagers, then she
was
referred
to
District
Hospital
Siddharthnagar for treatment, his sister was
undergoing treatment.

3. The informant (PW-1) on receiving
information, reached on the spot and
brought the injured to C.H.C2. Etwa, for
treatment at 2:00 a.m. on 16/17.7.2011. Dr.
V. K. Vaid (PW-4) examined the injured
and prepared a medical report (Ex.Ka.-4).
He found two injuries on her body, first; a
ligature mark all around on the neck,
second; superficial to deep burn wound was
present on the whole of the back, both
thighs, right leg, both upper arms and
36 INDIAN LAW REPORTS ALLAHABAD SERIES
forearms, both hands, and some part of the
chest, the upper part of the abdomen, 80%
of burn injury. A smell of kerosene oil was
present on her body. He informed the
police and after giving first aid, referred the
injured
to
the
District
Hospital
Siddharthanagar
for
further
treatment,
wherein a dying declaration of injured Smt.
Zahida was recorded by Guru Saran Lal
(PW-7),
Executive
Magistrate/Naib
Tehsildar, between 1:50 p.m. to 2:00 p.m.
on 17.7.2011 in the presence of Emergency
Medical Officer3 (not examined).

4. The FIR dated 17.7.2011 (Ex.Ka-5)
was registered as case Crime no. 444 of
2011 under section 307 I.P.C. against the
appellants
at
PS
Golhaura,
District
Sidharthnagar at 16:30 hours by CP-233
Ram Sumer Yadav (PW-5), on the basis of
a written complaint (Ex.Ka-1) of Mohd.
Umar (PW-1). The distance between the
place of occurrence and the Police Station
is about 12 Km.

5. On 18.7.2011, S.I. Satanand
Panday
(PW-8/investigating
officer4)
arrested the appellant Jakir Ali, and on
19.7.2011, after inspecting the place of the
occurrence, as pointed out by the informant
(PW-1) and his relatives, he prepared a site
map (Ex.Ka-10) of the place of the
incident. He also recovered an empty bottle
of kerosene oil, burnt clothes of the injured
Smt. Zahida on 19.7.2011 and prepared a
seizure memo (Ex.Ka-16).

6. The proceeding of the inquest
was conducted at 1:30 p.m. on 23.7.2011
by S.I. Bhawani Prasad Upadhyay (not
examined) on the basis of information of
death
received
through
ward
boy
Surendra Gaur (not examined) at PSKotwali Nagar, District Sidharthnagar,
which had been endorsed at G.D. Report
no. 20 time 11.20 a.m. on 23.7.2011, at
the
Mortuary
of
District
Hospital
Sidharthnagar, an inquest report (Ex.Ka3) was prepared. S.I. Bhawani Prasad
Upadhyay also prepared other police
papers (Ex.Ka-12 to Ex.Ka-15) for
getting conducted a post-mortem of the
body of the deceased.

7. PW-6 Dr. R.K. Verma conducted
the post-mortem examination of the body
of the deceased on 23.7.2013 at 3:30 p.m.
The
post-mortem
report
(Ex.Ka.-8)
disclosed the presence of the following
ante-mortem injuries on the corpse of
Smt. Zahida (aged about 38 years). These
are as under:

A- Superficial to deep burn grade I
and II injuries present on whole back,
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.

The doctor opined that he conducted
the post-mortem of the dead body of Smt.
Zahida Khatoon, which was brought in a
very critical condition. The deceased was
a simple height saddle, aged about 38
years, her mouth and eyes were halfopened, rigor mortis was present on all
four limbs. The right chamber of heart
was full and the left chamber was empty,
100 gms undigested food was found in
the abdomen, the cause of death was
septicemia and shock, which was caused
due to burning and infection.

8. During the treatment, Zahida died
on 23.7.2011 due to the burn injuries
received in the incident. On 24.7.2011,
after receiving the written information
6 All. Jakir Ali & Anr. Vs. State of U.P.
37
(Ex.Ka.-2) of the death of Smt. Zahida by
the informant (PW-1), Section 302 I.P.C
was added.

9.

On
27.7.2011,
during
the
investigation, PW-8 S.I. Satanand Pandey
received the medical report of the deceased
and information regarding the surrender of
appellant Kutti @ Alimunnisha before the
court.
After
completion
of
the
investigation, he submitted a charge sheet
(Ex.Ka-11) against the appellants under
Sections 302 I.P.C. on 10.8.2011. The court
took
cognizance
of
the
same.
On
committal, the trial court framed charges
against the appellants under Sections 302
read with Section 34 I.P.C. The appellants
denied the charges and claimed trial.

10. To prove the charges against the
appellants, the prosecution examined as
many as 8 witnesses. PW-1 Mohd. Umar,
informant/brother of the deceased, who had
arrived on the spot after receiving the
information of the incident through mobile
call and took the injured Zahida to C.H.C.
Etwa; PW-2 Mohd. Salim, neighbour of the
deceased who had reached the place of
occurrence immediately after hearing the
cries of the injured; PW-3 Amirullah,
witness of the inquest report; PW-4 Dr. V.
K. Vaid, who examined the injured Zahida
on 17.7.2011 at 2:00 a.m.; PW-5 CP 233
Ram Sumer Yadav (scribe); PW-6 Dr. R.
K. Verma, who conducted the postmortem; PW-7 Guru Saran Lal, Executive
Magistrate/Naib Tehsildar, who recorded
the dying declaration of the deceased and
PW-8 S.I. Satanand Pandey (I.O.) to prove
the exhibited documents. The inquest
report (Ex.Ka.-3) and other police papers
(Ex.Ka-12 to Ex.Ka-15) were prepared by
S.I. Bhawani Prasad Upadhyay, which have
been proved by PW-8 S.I. Satanand Pandey
as secondary evidence.

11. After taking the evidence of the
prosecution witnesses, as per the Section
313 of Code of Criminal Procedure, 1973
(in short 'Cr. PC.') the appellants were
questioned about the evidence led against
them by the prosecution, wherein they
denied the incriminating evidence put to
them and stated that they had been falsely
implicated on account of enmity. The
appellant Jakir Ali stated that he got
married to Kutti after the consent of Zahida
and before the incident, he had transferred
his share of the ancestral property to the
children of Zahida. The appellant Kutti
stated that on Zahida's consent, she used to
live with Jakir and due to this reason, she
had been implicated in this case. The
appellants examined DW-1 Juber Ali (son
of the deceased) in their defence.

12. Before the trial court, the
appellants argued that PW-4 Dr. V. K. Vaid
examined the injured as accidental injury
and endorsed in 'Accidental Register'
because the deceased had received the
injuries in an accident; the FIR has been
lodged after a 16 hours' unexplained delay;
the dying declaration was not recorded in
question-answer form and words spoken by
the deceased, and the doctor, who was
present at the time of recording the dying
declaration, had not been examined;
children of the deceased, who were
sleeping on the adjacent cot to the
deceased, had not been examined.

FINDINGS
OF
THE
TRIAL
COURT

13. The trial court found that PW-2
Mohd.
Salim
witnessed
the
incident
because he reached the spot immediately
after hearing the hue and cry. He saw
accused persons Jakir and Kutti running
away from the place of the incident after
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