# Mushtkim @ Pappu (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** Criminal Appeal No. 2834 of 1988
- **Bench:** Pritinker Diwaker, Rajbeer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mushtkim-pappu-in-jail-v-state-of-u-p-44823
- **Pages:** 13

## Headnote

A. Evidence Law-Indian Evidence Act,
1872 - Criminal Procedure Code, 1973,
section
161
-
Statement
/
Dying
declaration - deceased made oral dying
declaration before her mother (PW-4) as
to the manner in which she was burnt -
PW-5, is the Executive Magistrate, who
recorded the dying declaration of the
deceased - obtained medical certificate
3 All. Mushtkim @ Pappu Vs. State of U.P.
527
of the deceased from the Doctor - the
investigating
officer
recorded
two
statements of the deceased which have
been duly proved by the investigating
officer - apparent from the contents of
the dying declaration that it is the
appellant who burnt the deceased after
pouring kerosene oil on her - It is a
settled proposition of law that after the
death of the deceased, her statement
recorded under Section 161 Cr.P.C. can
be treated as her dying declaration - the
dying declarations of the deceased have
been duly proved by the witnesses -
enough evidence on record to suggest
that deceased was in a position to speak
and at least she was in a fit state of mind
to make her statement - the complicity
of the appellant in committing the
murder of the deceased, has been duly
proved - The trial court was fully
justified in convicting the appellant.
 (Para 14, 15, 26, 28,29,)

Appeal dismissed (E-7)

List of cases cited:-

## Text

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526 INDIAN LAW REPORTS ALLAHABAD SERIES
be failing in its duty if appropriate
punishment is not awarded for a crime
which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide :
(Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

54. In view of above propositions of
law, the paramount principle that should
be the guiding laser beam is that
punishment should be proportionate to
gravity of offence.

55. Hence, applying the principles
laid down by Apex Court in the aforesaid
judgments and having regard to the
totality of facts and circumstances of
case, nature of offence and the manner in
which it was executed or committed, we
find that punishment imposed upon
accused appellant by the Trial Court in
the impugned judgment and order is not
excessive or exorbitant and no occasion
arises to interfere in the matter on the
point of punishment imposed upon the
accused-appellant.

56. Consequently, Appeal lacks
merit and is hereby dismissed.

57. Lower Court record alongwith a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

58. Before parting, we provide that Sri
I.P. Singh, Advocate, who has appeared as
Amicus Curiae for appellant in present Jail
Appeal, shall be paid counsel's fee as Rs.
11,500/- for his valuable assistance. State
Government is directed to ensure payment of
aforesaid fee through Additional Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without any
delay and, in any case, within one month from
the date of receipt of copy of this judgment.
----------

(2019)11ILR A526

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJBEER SINGH, J.

Criminal Appeal No. 2834 of 1988

Mushtkim @ Pappu ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri M.F. Ansari, Sri Ajay Kumar Pandey,
Sri Keshav Sahai, Sri M. Islam

Counsel for the Opposite Party:
Sri Amti Sinha, A.G.A.

A. Evidence Law-Indian Evidence Act,
1872 - Criminal Procedure Code, 1973,
section
161
-
Statement
/
Dying
declaration - deceased made oral dying
declaration before her mother (PW-4) as
to the manner in which she was burnt -
PW-5, is the Executive Magistrate, who
recorded the dying declaration of the
deceased - obtained medical certificate
3 All. Mushtkim @ Pappu Vs. State of U.P.
527
of the deceased from the Doctor - the
investigating
officer
recorded
two
statements of the deceased which have
been duly proved by the investigating
officer - apparent from the contents of
the dying declaration that it is the
appellant who burnt the deceased after
pouring kerosene oil on her - It is a
settled proposition of law that after the
death of the deceased, her statement
recorded under Section 161 Cr.P.C. can
be treated as her dying declaration - the
dying declarations of the deceased have
been duly proved by the witnesses -
enough evidence on record to suggest
that deceased was in a position to speak
and at least she was in a fit state of mind
to make her statement - the complicity
of the appellant in committing the
murder of the deceased, has been duly
proved - The trial court was fully
justified in convicting the appellant.
 (Para 14, 15, 26, 28,29,)

Appeal dismissed (E-7)

List of cases cited:-

1. St. of Guj. Vs. Jayrajbhai Punjabhai Varu
(2016) 14 SCC 151

2. Gaffar Badshaha Pathan Vs. St. of Mah.
(2004) 10 SCC 589

3. P. Mani Vs St. of T.N. (2006) 3 SCC 161

4. Lakhan Vs St. of MP, (2010) 8 SCC 514

5. Shudhakar Vs St. of M.P. (2012) 7 SCC 569

6. Ramakant Mishra Vs St. of U.P. (2015) 8
SCC 299

7. Rafique @ Rauf & ors. Vs St. of U.P. (2013)
12 SCC 121

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of impugned
order and judgment dated 09.12.1988 passed
by VIIth Additional Sessions Judge, Meerut
in Sessions Trial No. 96 of 1988 convicting
the appellant under Section 302 and 498A of
IPC and sentencing him to undergo rigorous
life imprisonment under Section 302 and one
year rigorous imprisonment under Section
498A, with a direction that both the
sentences shall run concurrently.

2. In the present case, name of the
deceased is Khalida Begum wife of the
accused-appellant.
Their
marriage
was
solomnised on 01.04.1985 and she died in her
matrimonial house on 09.11.1987 after
suffering 95% burn injuries. On 31.10.1987
itself, on the basis of written report Ex.Ka-1
lodged by PW-1, Nisar Ahmad, father of the
deceased, FIR Ex.Ka-4 was registered against
the accused-appellant and two acquitted
accused under Sections 307 and 498A of IPC.
On 31.10.1987 itself, dying declaration of the
deceased Ex.Ka-3 was recorded by PW-5,
Mukesh Kumar Gupta, Executive Magistrate
wherein she has categorically stated that she
was burnt by the appellant. On 01.11.1987,
case diary statement Ex.Ka-14 of the
deceased was recorded in which also she
named the appellant to be the accused.
Likewise, on 02.11.1987, in another diary
statement of the deceased Ex.Ka-15, she has
stated that she was burnt by the appellant.
Deceased also made oral dying declaration
before PW-4, Shajda Begum implicating the
appellant as the main accused.

3. After the death of the deceased, inquest
on her dead body was conducted on 9.11.1987
vide Ex.Ka-16 and the body was sent for postmortem which was conducted on 10.11.1987 by
PW-3, Dr. S.C. Gupta vide Ex.Ka-2.

4.
As
per
Autopsy
Surgeon,
following ante-mortem injuries were
found on the body of deceased:

(I) superficial to deep burn
present on whole body except lower part
528 INDIAN LAW REPORTS ALLAHABAD SERIES
of abdomen, genatal region and a small
portion of back i.e. inter scapula region of
left side into supra scapula region of left
side.

(II) cut open mark present on
right leg inner and lower one third.

The cause of death of the
deceased was due to shock as a result of
extensive burn.

5. While framing charge, the trial
judge has framed charge against accusedappellant under Sections 302, 304B and
498A of IPC whereas against two
acquitted accused namely Mohd. Mohsin
and Smt. Amna, charges were framed
under Sections 304B/34 and 498A/34 of
IPC.

6. So as to hold accused persons
guilty, prosecution has examined nine
witnesses,
whereas
three
defence
witnesses have also been examined.
Statements of accused persons were
recorded under Section 313 of Cr.P.C. in
which they pleaded their innocence and
false implication.

7. By the impugned judgment, the
trial judge has acquitted co-accused
Mohsin and Smt. Amna of all the
offences, whereas appellant has been
convicted under Section 302 and 498A of
IPC. Hence this appeal.

8. Learned counsel for the appellant
submits:-

(I) that on the same set of
evidence, once co-accused has been
acquitted, the trial court was not justified
in convicting the appellant.

(II) that dying declaration of the
deceased
Ex.Ka-3
recorded
by
the
Executive Magistrate is not reliable as at
the time of making the said statement, the
deceased was not in a fit state of mind.
Learned
counsel
submits
that
endorsement made by the Doctor in dying
declaration has been obtained after it was
recorded and, therefore, it has no legal
sanctity.

(III)
that
diary
statements
Ex.Ka-14 and Ex.Ka-15 of the deceased
are nothing but concocted piece of
evidence.

(IV) that deceased died an
accidental
death
but
unfortunately
appellant has been made escape goat just
because he happens to be the husband of
the deceased.

(V) that it is the appellant, who
hospitalized the deceased and, therefore,
even assuming that any such incident had
taken place, case of the appellant would
not fall under Section 302 of IPC.

9. On the other hand, supporting the
impugned judgment, it has been argued
by the State Counsel:

(I)
that
conviction
of
the
appellant is in accordance with law and
there is no infirmity in the same.

(II) that there is no reason for
this Court to disbelieve the dying
declaration Ex.Ka-3 of the deceased
recorded by PW-5, Mukesh Kumar
Gupta, Executive Magistrate. He submits
that 161 Cr.P.C. statements of the
deceased Ex.Ka-14 and Ex.Ka-15 are to
be treated as her dying declaration after
her death.

(III)
that
the
oral
dying
declaration was also made by the
deceased before PW-4, Shajda Begum
and that also supports the prosecution
case.

(IV) that the mere fact that the
appellant hospitalized the deceased, will
3 All. Mushtkim @ Pappu Vs. State of U.P.
529
not give him any leniency because after
the incident, the appellant may have felt
fear in his mind of being punished by the
police and that is why, he hospitalized the
deceased. In any case, the heinous act of
the appellant cannot be diluted just
because he hospitalized the deceased.

10. We have heard learned counsel
for the parties and perused the record.

11. PW-1, Nisar Ahmad is a father
of the deceased and the informant, has
stated that marriage of the deceased was
solemnized
with
the
appellant
on
01.04.1985 and in the marriage, sufficient
dowry
was
given
by
him.
Since
beginning, accused persons used to harass
the deceased for demand of various
articles like fridge and motorcycle. On
31.12.1987, he came to know about the
incident and then he lodged the report.

12. PW-2, Bharat Singh, Constable,
took the body for postmortem.

13.

PW-3,
Dr.
S.C.
Gupta,
conducted postmortem on the body of the
deceased and noticed 90% to 95% burn
injuries on the body of the deceased.

14. PW-4, Shajda Begum, is the
mother of the deceased, states that since
the date of marriage, the deceased was
subjected to cruelty for demand of dowry
and various articles were given to her.
She further states that the deceased made
oral dying declaration before her as to the
manner in which she was burnt. In crossexamination, this witness was subjected
to various questions including tricky ones
but she remained firm and has reiterated
as to the manner in which the deceased
discloses her about the incident and the
ill-treatment meted to her.

15. PW-5, Mukesh Kumar Gupta, is
the Executive Magistrate, who recorded
the dying declaration of the deceased. He
has stated that before recording the dying
declaration of the deceased, he obtained
medical certificate of the deceased from
the
Doctor
and
only
after
due
certification, he recorded the statement in
which the deceased had disclosed that she
was burnt by the accused-appellant. He
has duly proved the dying declaration Ex.
Ka-3.

16. PW-6, Bhagat Singh Visth, has
recorded the FIR.

17. PW-7, Ahsan Ilahi, is a maternal
uncle of the deceased, has stated that he
saw
accused-appellant
burning
the
deceased and that after the incident
deceased was crying and shouting by
saying that she was burnt by other two
accused persons.

18. PW-8, G.S. Verma, is an
Investigating Officer. He also recorded
the diary statement of the deceased
Ex.Ka-14
and
Ex.Ka-15,
wherein
deceased has stated as to the manner in
which she was burnt by the appellant.

19. PW-9, Dr. V.P. Goel, medically
examined the deceased when she was first
admitted in Chaurasiya Nursing Home
and he has also proved the injury report of
the deceased Ex.Ka-25. This witness has
also proved the fitness certificate of the
deceased given by him at the time of
recording the dying declaration by the
Executive Magistrate.

20. DW-1, Hafizuddin, has stated
that in the marriage of appellant and the
deceased, no dowry was settled and that
the couple was living happily.
530 INDIAN LAW REPORTS ALLAHABAD SERIES

21. DW-2, Matin has stated that it is
the appellant, who extinguish the fire.

22. DW-3, Dr. S.K. Singh, has
stated that after injecting pathedrin and
calmpose,
patient
would
be
semiconscious. He, however, has stated that
even in the case of 100% burn injury, at
times, patient can speak and can also keep
quiet.

23. Before we appreciate the
evidence adduced by the prosecution, we
feel it appropriate to refer certain
judgments of the Apex Court governing
the law of the dying declaration.

24. In State of Gujarat v.
Jayrajbhai
Punjabhai
Varu,
the
Supreme Court held as under:

"15. The courts below have to
be extremely careful when they deal with
a dying declaration as the maker thereof
is not available for the cross- examination
which poses a great difficulty to the
accused person. A mechanical approach
in relying upon a dying declaration just
because
it
is
there
is
extremely
dangerous. The court has to examine a
dying declaration scrupulously with a
microscopic eye to find out whether the
dying declaration is voluntary, truthful,
made in a conscious state of mind and
without being influenced by the relatives
present or by the investigating agency
who may be interested in the success of
investigation or which may be negligent
while recording the dying declaration.

16. In the case on hand, there
are two sets of evidence, one is the
statement/declaration made before the
police
officer
and
the
Executive
Magistrate and the other is the oral dying
declaration made by the deceased before
her father who was examined as PW-1.
On a careful scrutiny of the materials on
record, it cannot be said that there were
contradictions in the statements made
before the police officer and the Executive
Magistrate as to the role of the
respondent herein in the commission of
the offence and in such circumstances,
one set of evidence which is more
consistent and reliable, which in the
present case being one in favour of the
respondent
herein,
requires
to
be
accepted and conviction could not be
placed on the sole testimony of PW-1.

17. A number of times the
relatives
influence
the
investigating
agency
and
bring
about
a
dying
declaration.
The
dying
declarations
recorded by the investigating agencies
have to be very scrupulously examined
and the court must remain alive to all the
attendant circumstances at the time when
the dying declaration comes into being. In
case of more than one dying declaration,
the intrinsic contradictions in those dying
declarations are extremely important. It
cannot be that a dying declaration which
supports the prosecution alone can be
accepted while the other innocent dying
declarations have to be rejected. Such a
trend will be extremely dangerous.
However, the courts below are fully
entitled to act on the dying declarations
and make them the basis of conviction,
where the dying declarations pass all the
above tests.

18. The court has to weigh all
the attendant circumstances and come to
the independent finding whether the dying
declaration was properly recorded and
whether it was voluntary and truthful.
Once the court is convinced that the dying
declaration is so recorded, it may be
acted upon and can be made a basis of
conviction. The courts must bear in mind
3 All. Mushtkim @ Pappu Vs. State of U.P.
531
that each criminal trial is an individual
aspect. It may differ from the other trials
in some or the other respect and,
therefore, a mechanical approach to the
law of dying declaration has to be
shunned.

19. On appreciation of evidence
on record, we are of the considered view
that the dying declarations of the
deceased recorded by the police officer as
well as the Executive Magistrate are fully
corroborated
and
there
is
no
inconsistency as regards the role of the
respondent herein in the commission of
offence. From a perusal of the statement
recorded by Bhiku Karsanbhai, P.S.O.,
the thumb impression of Rekhaben (since
deceased) which had been identified by
her father-Sri Vala Jaskubhai Suragbhai
as also his cross-examination in which he
admitted that police had already come
there and he had identified her thumb
impression and Mamlatdar had gone
inside to record statement, there is no
reason as to why Rekhaben would give
names of her husband and her in- laws in
the alleged statement given to her father.
A dying declaration is entitled to great
weight. The conviction basing reliance
upon the oral dying declaration made to
the father of the deceased is not reliable
and such a declaration can be a result of
afterthought. This is the reason the Court
also insists that the dying declaration
should be of such a nature as to inspire
full confidence of the Court in its
correctness. The Court has to be on guard
that the statement of deceased was not as
a result of tutoring, prompting or a
product of imagination. The Court must
be further satisfied that the deceased was
in a fit state of mind after a clear
opportunity to observe and identify the
assailants. Once the Court is satisfied
that the declaration was true and
voluntary, undoubtedly, it can base its
conviction
without
any
further
corroboration. It cannot be laid down as
an absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The
rule requiring corroboration is merely a
rule of prudence.

20. The burden of proof in
criminal law is beyond all reasonable
doubt. The prosecution has to prove the
guilt of the accused beyond all reasonable
doubt and it is also the rule of justice in
criminal law that if two views are
possible on the evidence adduced in the
case, one pointing to the guilt of the
accused and the other towards his
innocence, the view which is favourable
to the accused should be adopted."

25. In Gaffar Badshaha Pathan v.
State of Maharashtra,it was held as
under:

"5. Dr. A.U. Masurkar was the
Chief Medical Officer of the hospital at
the relevant time. The High Court has
held that the recording of the dying
declaration and story stated therein
apparently appears to be false and
concocted for the various reasons noticed
in the impugned judgment. It has to be
borne in mind that the fact whether the
dying declaration is false and concocted
has to be established by the prosecution.
It is not for the accused to prove
conclusively that the dying declaration
was correct and the story therein was not
concocted. The fact that the statement of
the deceased was recorded at about 9.00
p.m. by the Head Constable cannot be
doubted though an attempt to the contrary
seems to have been made by the
prosecution.
The
statements
of
the
prosecution witnesses (PW 5 and PW 11)
532 INDIAN LAW REPORTS ALLAHABAD SERIES
also show that the statement was
recorded
by
the
Head
Constable.
According to PW 5, it was only a show
made by the Head Constable of recording
statement, since according to the said
witness, the deceased was not in a
position to speak at that time. Even PW
11, a doctor in the hospital, has deposed
about the recording of the statement by
the Head Constable though he has not
formally proved the dying declaration but
has certified the correctness of the
endorsement of Dr. A.U. Masurkar on the
dying declaration. PW 11 was shown the
dying declaration. He has deposed that
the certificate recorded on the dying
declaration is in the handwriting of Dr.
Masurkar, Chief Medical Officer of the
hospital. He has further deposed that Dr.
Masurkar is in the hospital since the last
12 to 15 years and that he had degree in
MS and was estimated to be an honest
and expert surgeon of the area. One of
the reasons which had strongly weighed
with the High Court in rejecting the dying
declaration is that the endorsement of the
doctor is only about the deceased lady
being conscious and not that she was in a
fit condition to make the statement. The
High Court went into distinction between
consciousness
and
fitness
to
make
statement. On the facts of the present
case, we are unable to sustain the
approach adopted by the High Court. It is
one thing for an accused to attack a dying
declaration
in
a
case
where
the
prosecution seeks to rely on a dying
declaration against an accused but it is
altogether different where an accused
relies upon a dying declaration in support
of the defence of accidental death. The
burden on the accused is much lighter. He
has only to prove reasonable probability.
Under these circumstances, the dying
declaration could not have been rejected
on the ground that it does not contain the
endorsement of the doctor of the fitness of
the lady to make the statement as the
certificate of the doctor only shows that
she was in a conscious state. The
endorsement of the doctor aforequoted is
not only about the conscious state of the
lady but is that she made the statement in
a conscious state."

26. In P. Mani v State of
Tamilnadu,
while
considering
the
suspicious dying declaration, it has been
held by the Apex Court that the
conviction can be based solely on the
basis of dying declaration alone, but the
same must be wholly reliable and
trustworthy. Para 14 of the said judgment
reads thus:

"14.
Indisputably
conviction
can be recorded on the basis of dying
declaration alone but therefore the same
must be wholly reliable. In a case where
suspicion can be raised as regard the
correctness of the dying declaration, the
court before convicting an accused on the
basis thereof would look for some
corroborative evidence. Suspicion, it is
trite, is no substitute for proof. If evidence
brought on records suggests that such
dying declaration does not reveal the
entire truth, it may be considered only as
a piece of evidence in which event
conviction may not be rested only on the
basis thereof. The question as to whether
a dying declaration is of impeccable
character would depend upon several
factors; physical and mental condition of
the deceased is one of them. In this case
the circumstances which have been
brought on records clearly point out that
what might have been stated in the dying
declaration may not be correct. If the
deceased had been nurturing a grudge
3 All. Mushtkim @ Pappu Vs. State of U.P.
533
against her husband for a long time, she
while committing suicide herself may try
to implicate him so as to make his life
miserable. In the present case where the
Appellant
has
been
charged
under
Section 302 of the Indian Penal Code, the
presumption in terms of Section 113A of
the Evidence Act is not available. In
absence of such a presumption, the
conviction and sentence of the accused
must be based on cogent and reliable
evidence brought on record by the
prosecution. In this case, we find that the
evidences are not such which point out
only to the guilt of the accused."

27. In Lakhan v. State of MP, the
Supreme Court after discussing number
of judgments on the point of dying
declarations summarized the law in this
regard, as under:

"20. In view of the above, the
law on the issue of dying declaration can
be summarized to the effect that in case,
the Court comes to the conclusion that the
dying declaration is true and reliable, has
been recorded by a person at a time when
the deceased was fit physically and
mentally to make the declaration and it
has
not
been
made
under
any
tutoring/duress/prompting; it can be the
sole basis for recording conviction. In
such an eventuality no corroboration is
required. In case, there are multiple dying
declarations and there are inconsistencies
between them, generally, the dying
declaration recorded by the higher officer
like a Magistrate can be relied upon,
provided that there is no circumstance
giving rise to any suspicion about its
truthfulness.
In
case,
there
are
circumstances wherein the declaration
had been made, not voluntarily and even
otherwise, it is not supported by the other
evidence, the Court has to scrutinize the
facts of an individual case very carefully
and take a decision as to which of the
declarations is worth reliance."

28. In Shudhakar v. State of MP,
the Supreme Court held as under:

"18. In the case of Laxman
(supra), the Court while dealing with the
argument that the dying declaration must
be recorded by a Magistrate and the
certificate of fitness was an essential
feature, made the following observations.
The court answered both these questions
as follows:

"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
cross-examination 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
534 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
Normally, therefore, the court in order to
satisfy whether the deceased was in a fit
mental condition to make the dying
declaration looks up to the medical
opinion. But where the eyewitnesses state
that the deceased was in a fit and
conscious state to make the declaration,
the medical opinion will not prevail, nor
can it be said that since there is no
certification of the doctor as to the fitness
of the mind of the declarant, the dying
declaration is not acceptable. A dying
declaration can be oral or in writing and
any adequate method of communication
whether by words or by signs or
otherwise
will
suffice
provided
the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced
to writing by someone like a Magistrate
or a doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence of a Magistrate absolutely
necessary, although to assure authenticity
it is usual to call a Magistrate, if
available for recording the statement of a
man about to die. There is no requirement
of law that a dying declaration must
necessarily be made to a Magistrate and
when such statement is recorded by a
Magistrate there is no specified statutory
form for such recording. Consequently,
what evidential value or weight has to be
attached to such statement necessarily
depends on the facts and circumstances of
each particular case. What is essentially
required is that the person who records a
dying declaration must be satisfied that
the deceased was in a fit state of mind.
Where it is proved by the testimony of the
Magistrate that the declarant was fit to
make
the
statement
even
without
examination by the doctor the declaration
can be acted upon provided the court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor
is essentially a rule of caution and
therefore the voluntary and truthful
nature
of
the
declaration
can
be
established otherwise."

29. In Ramakant Mishra v. State
of UP, the Supreme Court observed as
under:

"9. Definition of this legal
concept found in Black's Law Dictionary
(5th Edition) justifies reproduction:

"Dying
Declarations
-
Statements made by a person who is lying
at the point of death, and is conscious of
his approaching death, in reference to the
manner in which he received the injuries
of which he is dying, or other immediate
cause of his death, and in reference to the
person who inflicted such injuries or the
connection with such injuries of a person
who is charged or suspected of having
committed them; which statements are
admissible in evidence in a trial for
homicide (and occasionally, at least in
some jurisdictions, in other cases) where
the killing of the declarant is the crime
charged to the defendant. Shepard v.
U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78
L.Ed. 196.

Generally, the admissibility of
such declarations is limited to use in
prosecutions
for
homicide;
but
is
admissible on behalf of accused as well
as for prosecution. In a prosecution for
homicide or in a civil action or
proceeding, a statement made by a
declarant while believing that his death
was imminent, concerning the cause or
circumstances of what he believed to be
3 All. Mushtkim @ Pappu Vs. State of U.P.
535
his impending death is not excluded by
the hearsay rule. Fed. Evid.R. 804 (b) (2).

10. When a person makes a
statement while being aware of the
prospect that his death is imminent and
proximate, such a statement assumes a
probative
value
which
is
almost
unassailable, unlike other statements
which he may have made earlier, when
death was not lurking around, indicating
the cause of his death. That is to say that
a person might be quite willing to
implicate an innocent person but would
not do so when death is knocking at his
door. That is why a Dying Declaration, to
conform to this unique specie, should
have been made when death was in the
contemplation of the person making the
statement/declaration."

24. In the present case, the dying
declaration of the deceased Ex.Ka-3
recorded by PW-5, Executive Magistrate
reads as under:-

" Fkkuk/;{k dksrokyh dh lwpuk ij eSa
eqds'k dqekj xqIrk flVh eftLVz~sV esjB pkSjfl;k
uflZxa gkse ij jksxh Jherh [kkfynk dk c;ku ysus
igqaWpkA ekSds ij mifLFkr Mk0 dh jk; ij fd jksxh
c;ku nsus esa ekufld o 'kkjhfjd :i ls LoLFk gS
jksxh dk c;ku ysuk izkjEHk fd;kA jksxh ls iz'u iwNs
x;s ftlds mRrj fuEu gSaA

iz'u 1& eSa eftLVz~sV c;ku ysus vk;k gwW
D;k vki le> jgh gSaA

mRrj& gkaW

iz'u & vkids lkFk D;k ?kVuk ?kfVr
gqbZ \

mRrj& vkt djhc 1 1@2 &2 cts
tc esjs ?kj ij esjs vkneh ds vykok dksbZ ugha Fkk]
esjs ifr us esjs mij feV~Vh dk rsy fNM+d fn;k
rFkk vkx yxk nhA vkx yxkus ds ckn eSusa 'kksj
epk;k] ekSgYys okys yksx vk x;sA mlds mijkUr
esjs ifr gh eq>s bl uflZax gkse esa yk;sA

iz'u & vki viuk c;ku lksp le>dj
ns jgh gks\

mRrj& eSa c;ku lksp le>dj ns jgh
gwWA esjs ifr us gh eq>s tyk;k gSA

iz'u& ifr us rqEgsa D;ksa tyk;k \

mRrj& eSa [kpsZ ds fy, iSls ekaxrh FkhA
blh dkj.k ls esjs ifr us eq>s tyk fn;kA 7%15

g0 viBuh;

31-10-87

City Magistrate

Meerut "

25. The above dying declaration has
been recorded by the PW-5, Mukesh
Kumar Gupta, Executive Magistrate and
has been duly endorsed by PW-9, Dr.
V.P. Goel. In the Court, PW-5, Executive
Magistrate has categorically stated that it
is he, who recorded the dying declaration
after obtaining the certificate from the
Doctor and likewise PW-9, V.P. Goel,
who gave the certificate, has also
affirmed this fact that after his certificate,
dying declaration was recorded by the
Executive Magistrate. Considering the
evidence available on record, we have
absolutely no doubt about the authenticity
of the dying declaration recorded by PW5, Mukesh Kumar Gupta, Executive
Magistrate.

26. From the contents of the dying
declaration, it is apparent that it is the
appellant who burnt the deceased after
pouring kerosene oil on her. Apart from
the
above
dying
declaration,
the
investigating officer recorded two diary
statements of the deceased on 1.11.1987
and 2.11.1987 vide Ex. Ka-14 and Ex.Ka15. These two documents have been duly
proved by the investigating officer. It is a
settled proposition of law that after the
death of the deceased, her statement
recorded under Section 161 Cr.P.C. can
be treated as her dying declaration.
536 INDIAN LAW REPORTS ALLAHABAD SERIES

In the present case, diary statements
of the deceased were recorded on
01.11.1987 and 2.11.1987 and she died on
09.11.1987. After the death of the
deceased, these two statements made by
the
deceased
becomes
her
dying
declaration. Law in this respect is well
settled.

30. In Rafique alias Rauf and Ors.
Vs. State of Uttar Pradesh, the Apex
Court held as under:

"16. The important question for
consideration, therefore, is whether the
said statement made by the deceased can
be taken as a dying declaration and
reliance can be placed upon the same.

17. The High Court while
relying upon the said statement has noted
certain
circumstances,
namely,
the
evidence of P.W.6, Investigating Officer,
who deposed that the deceased was fully
conscious when he was brought to the
police station with injuries on his face,
chest and other parts of the body and that
he recorded his statement. It was also
noted that after recording his statement
the Investigating Officer referred him to
the hospital for medical examination and
treatment. The High Court, thereafter,
noted
the
evidence
of
P.W.5
the
postmortem doctor who categorically
stated in his cross-examination that the
injured was also in a position to speak
and that it was not necessary that in all
cases after sustaining injury in the brain
a person cannot retain his conscience or
will not be in a position to speak. The
High Court noted the further statement of
the doctor that it is not necessary that in
every such case the patient would
immediately go to a coma stage.

18. The High Court, therefore,
reached a conclusion that the deceased
Zahiruddin, was in a position to speak
and that the statement under Ext.Ka-9
was given by him who expired on the next
day evening. It further stated that since it
was the last statement of the deceased to
the Investigating Officer it can very well
be treated as a dying declaration. The
High Court was conscious of the fact that
the trial Court did not place any reliance
on the said statement which in the opinion
of the High Court was erroneous.

19. In this context when we
make reference to the statutory provisions
concerning the extent of reliance that can
be placed upon the dying declaration and
also the implication of Section 162(2)
Cr.P.C. vis-à-vis Section 32(1) of the
Evidence Act, 1872, we feel that it will be
appropriate to make a reference to the
decision of this Court reported in Khushal
Rao vs. State of Bombay - AIR 1958 SC
22. Justice Sinha speaking for the Bench
after making further reference to a Full
Bench decision of the High Court of
Madras headed by Sir Lionel Leach, C.J.,
a decision of the Judicial Committee of
the Privy Council and ''Phipson on
Evidence' - 9th Ed., formulated certain
principles to be applied to place any
reliance upon such statements. We feel
that the substance of the principles stated
in the Full Bench decision and the
Judicial Committee of the Privy Council
and the author Phipson's view point on
accepting
a
statement
as
dying
declaration can also be noted in order to
understand the principles ultimately laid
down by this Court in paragraph 16.

20. The Full Bench of the
Madras High Court in Guruswami Tevar
- AIR 1940 Mad 196 in its unanimous
opinion stated that no hard-and-fast rule
can be laid down as to when a dying
declaration should be accepted, except
stating that each case must be decided in
3 All. Mushtkim @ Pappu Vs. State of U.P.
537
the light of its own facts and other
circumstances. What all the Court has to
ultimately conclude is whether the Court
is convinced of the truthfulness of the
statement, notwithstanding that there was
no corroboration in the true sense. The
thrust was to the position that the Court
must be fully convinced of the truth of the
statement and that it should not give any
scope for suspicion as to its credibility.
This Court noted that the High Court of
Patnant decision of this Court reported in
Sri Bhagwan v. State of U.P. - (2013) 12
SCC 137, to which one of us was a party,
the Court dealt with more or less an
identical situation and held as under in
paras 21 and 22: and Nagpur also
expressed the same view in the decisions
reported in Mohd. Arif v. Emperor - AIR
1941 Pat. 409 and Gulabrao Krishnajee
v. Emperor - AIR 1945 Nag. 153.

26. In a recent decision of this
Court reported in Sri Bhagwan v. State of
U.P. - (2013) 12 SCC 137, to which one
of us was a party, the Court dealt with
more or less an identical situation and
held as under in paras 21 and 22:

"21.
As
far
as
the
implication of 162(2) CrPC is concerned,
as a proposition of law, unlike the
excepted circumstances under which 161
statement could be relied upon, as rightly
contended by learned Senior Counsel for
the respondent, once the said statement
though recorded under Section 161 CrPC
assumes
the
character
of
dying
declaration falling within the four corners
of Section 32(1) of Evidence Act, then
whatever credence that would apply to a
declaration governed by Section 32(1)
should automatically deemed to apply in
all force to such a statement though was
once recorded under Section 161 CrPC.
The above statement of law would result
in a position that a purported recorded
statement under Section 161 of a victim
having regard to the subsequent event of
the death of the person making the
statement who was a victim would enable
the prosecuting authority to rely upon the
said statement having regard to the
nature and content of the said statement
as one of dying declaration as deeming it
and falling under Section 32(1) of
Evidence Act and thereby commend all
the credence that would be applicable to
a dying declaration recorded and claimed
as such.

Keeping the above principle in
mind, it can be stated without any scope
for contradiction that when we examine
the claim made on the statement recorded
by PW-4 of the deceased by applying
Section 162(2), we have no hesitation in
holding that the said statement as relied
upon by the trial Court as an acceptable
dying declaration in all force was
perfectly justified. We say so because no
other conflicting circumstance was either
pointed out or demonstrated before the
trial Court or the High Court or before us
in order to exclude the said document
from being relied upon as a dying
declaration of the deceased. We reiterate
that having regard to the manner in which
the said statement was recorded at the
time when the crime was registered
originally under Section 326 IPC within
the shortest time possible within which it
could be recorded by PW-4 in order to
provide proper medical treatment to the
deceased by sending him to the hospital,
with no other intention pointed out at the
instance of the appellant to discredit
contents of the said statement, we hold
that the reliance placed upon the said
statement as the dying declaration of the
deceased was perfectly justified. Having
regard to our above conclusion, the said
submission of the learned counsel for the
538 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant
also
stands
rejected.".....................

27. Apart from the above three
dying declarations, the deceased also
made oral dying declaration before PW-4
and the said witness has also proved the
oral dying declaration.

28. Taking the cumulative effect of
the evidence, we have no reason to
disbelieve the dying declarations of the
deceased which have been duly proved by
the witnesses. The mere fact that certain
medicines were given to treat the
deceased does not mean that she was not
in a fit state of mind to make the dying
declaration.