# Puran v. State Of U.P

- **Citation:** (2016) 3 ILRA 557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-01
- **Bench:** Shashi Kant Gupta, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puran-v-state-of-u-p-43485
- **Pages:** 13

## Headnote

558 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned D.G.A. (Assistant/Additional Government Advocate),
Sri Rajeev Gupta, AGA, argued during appeal proceedings

Proceedings

The present criminal appeal has been filed against the judgment and order dated 21.2.1985 passed by
the Xth Additional Sessions Judge, Moradabad, in Sessions Trial No. 75 of 1984, whereby the
appellant was convicted and sentenced to undergo imprisonment for life under Section 302 of the
Indian Penal Code. The trial arose from the alleged commission of the offence under Section 302 IPC
at Police Station Katghar, District Moradabad. Upon consideration of the evidence adduced during the
trial, the Sessions Court convicted the appellant primarily on the basis of the dying declaration of the
victim and other corroborative materials. Being aggrieved, the appellant preferred this appeal before
the Allahabad High Court, wherein arguments were duly heard. Ultimately, the appeal was dismissed
and the conviction and life sentence of the appellant were upheld by the Division Bench comprising
Hon'ble Shashi Kant Gupta, J. and Hon'ble Naheed Ara Moonis, J.

Procedure

The procedural sequence commenced with the lodging of the First Information Report on 5.11.1983 at
Police Station Katghar, District Moradabad, under Section 307 IPC. The investigation was promptly
initiated, and statements of relevant witnesses were recorded under Section 161 Cr.P.C. On the same
day, the dying declaration of the victim, Madhu, was recorded by Additional City Magistrate V.P.
Sharma in the presence of Dr. Y.C. Gupta, who certified the mental fitness of the victim to give the
statement. Subsequent to her demise on 9.11.1983, the case was converted under Section 302 IPC.
The post-mortem was conducted on 10.11.1983, and the corpse was handed over to the family after
completing the inquest formalities. The investigating officer, Inspector T.C. Tyagi, submitted the
charge sheet, which was admitted and the case committed to the Sessions Court. The trial was
conducted with nine prosecution witnesses, including witnesses of fact and formal witnesses, and the
accused was examined under Section 313 Cr.P.C. No evidence was adduced on behalf of the defence.
The Sessions Court, after appreciating the evidence, convicted the appellant. Aggrieved, the appellant
filed the present appeal before the High Court.

Penal Sections

Section 302 IPC - Murder
(Initially Section 307 IPC) - Attempt to murder
Section 161 Cr.P.C. - Witness statements
Section 313 Cr.P.C. - Examination of accused
Section 6, Evidence Act - Res gestae
Section 106, Evidence Act - Facts within special knowledge
Dying declaration (Section 32(1), Evidence Act) - Though not expressly cited, applied
throughout

Case Law Cited

State of U.P. v. Ramesh Prasad Mishra (AIR 1996 SC 2766)
Principle: Hostile witness testimony not to be discarded entirely; can be relied upon to the extent it
supports prosecution.

Head Notes

Dying Declaration - Re

## Text

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3 All. Puran Vs State OF U.P.
557
delegatee in view of the provisions of Section 10 of the Act, was not competent to further
delegate such power by taking recourse to the third proviso to Rule 23 (2). In such a
situation, this Court does not find any illegality in the action of the second respondent in
placing the petitioner under suspension.

13. The suspension of the petitioner during pendency of the disciplinary proceedings is
not penal in nature. The charge, if proved, is serious enough to entail infliction of a major
penalty. The own case of the petitioner is that he has not even been served with a charge
sheet so far. The second respondent is not holding the enquiry himself, but has designated
another officer as the Enquiry Officer. There does not appear to be any element of bais.
Thus, it is not a fit case for interference under Article 226 of the Constitution.

14. The other pleas of the petitioner that he was not under the influence of intoxication
on that particular date or that the report of medical examination does not indicate that he was
under influence of liquor, are all questions which shall be examined during the course of the
disciplinary enquiry. This is not the stage to go into these pleas, nor can suspension order be
interfered with on such grounds.

15. The writ petition lacks merit and is dismissed.

16. Sri Mandhyan, learned counsel for the petitioner prayed that the disciplinary
proceedings be directed to be concluded expeditiously.

17. Having regard to the facts of the case, it is hereby directed that the disciplinary
proceedings be held and concluded expeditiously, in accordance with law.

18. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Criminal Appeal No.- 601 OF 1985;

Puran ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Shri V.P. Srivastava, Sri K.D. Tripathi (Later arguments in appeal advanced by Sri R.R. Singh)

Counsel for the Respondent:
558 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned D.G.A. (Assistant/Additional Government Advocate),
Sri Rajeev Gupta, AGA, argued during appeal proceedings

Proceedings

The present criminal appeal has been filed against the judgment and order dated 21.2.1985 passed by
the Xth Additional Sessions Judge, Moradabad, in Sessions Trial No. 75 of 1984, whereby the
appellant was convicted and sentenced to undergo imprisonment for life under Section 302 of the
Indian Penal Code. The trial arose from the alleged commission of the offence under Section 302 IPC
at Police Station Katghar, District Moradabad. Upon consideration of the evidence adduced during the
trial, the Sessions Court convicted the appellant primarily on the basis of the dying declaration of the
victim and other corroborative materials. Being aggrieved, the appellant preferred this appeal before
the Allahabad High Court, wherein arguments were duly heard. Ultimately, the appeal was dismissed
and the conviction and life sentence of the appellant were upheld by the Division Bench comprising
Hon'ble Shashi Kant Gupta, J. and Hon'ble Naheed Ara Moonis, J.

Procedure

The procedural sequence commenced with the lodging of the First Information Report on 5.11.1983 at
Police Station Katghar, District Moradabad, under Section 307 IPC. The investigation was promptly
initiated, and statements of relevant witnesses were recorded under Section 161 Cr.P.C. On the same
day, the dying declaration of the victim, Madhu, was recorded by Additional City Magistrate V.P.
Sharma in the presence of Dr. Y.C. Gupta, who certified the mental fitness of the victim to give the
statement. Subsequent to her demise on 9.11.1983, the case was converted under Section 302 IPC.
The post-mortem was conducted on 10.11.1983, and the corpse was handed over to the family after
completing the inquest formalities. The investigating officer, Inspector T.C. Tyagi, submitted the
charge sheet, which was admitted and the case committed to the Sessions Court. The trial was
conducted with nine prosecution witnesses, including witnesses of fact and formal witnesses, and the
accused was examined under Section 313 Cr.P.C. No evidence was adduced on behalf of the defence.
The Sessions Court, after appreciating the evidence, convicted the appellant. Aggrieved, the appellant
filed the present appeal before the High Court.

Penal Sections

Section 302 IPC - Murder
(Initially Section 307 IPC) - Attempt to murder
Section 161 Cr.P.C. - Witness statements
Section 313 Cr.P.C. - Examination of accused
Section 6, Evidence Act - Res gestae
Section 106, Evidence Act - Facts within special knowledge
Dying declaration (Section 32(1), Evidence Act) - Though not expressly cited, applied
throughout

Case Law Cited

State of U.P. v. Ramesh Prasad Mishra (AIR 1996 SC 2766)
Principle: Hostile witness testimony not to be discarded entirely; can be relied upon to the extent it
supports prosecution.

Head Notes

Dying Declaration - Reliability:A conviction can be sustained solely on a truthful and voluntary
dying declaration recorded with adequate medical certification.
3 All. Puran Vs State OF U.P.
559
Hostile Witnesses: Evidence of hostile witnesses is not effaced; the Court may rely on its
trustworthy portions.
Section 106 Evidence Act: Where offence occurs inside matrimonial home, burden lies on accused
to explain circumstances of death.
Domestic Homicide - Circumstantial & Oral Evidence: Admissions made by victim before
relatives shortly before death are admissible as res gestae.
Conduct of Accused: Fleeing from scene, lack of explanation, and failure to participate in last rites
are incriminating.

Facts

Madhu, wife of appellant Puran, suffered 90% burn injuries in her matrimonial home.
She informed her brothers and the Magistrate that the appellant, in an inebriated condition, brutally
beat her, poured kerosene oil, and set her ablaze.
Neighbours arrived upon her cries; appellant feigned that victim set herself on fire.
Dying declaration was recorded in presence of a medical officer who certified mental fitness.
Victim died four days later; post-mortem confirmed death due to burn-induced shock.
Brothers and relatives initially supported the case but turned hostile during trial.
Appellant's version: he was innocent; victim committed suicide; he was falsely implicated.
Sessions Court convicted appellant.

Contentions

A. Appellant

Dying declaration unreliable: no proper doctor's certificate; victim had 90% burns and was unfit to
speak.
All witnesses of fact turned hostile; prosecution case lacked corroboration.
Victim committed suicide; appellant attempted to save her and also suffered burns.
Presence of alleged informant Raj Bahadur not proved; non-examination fatal.
Medical and oral evidence inconsistent; prosecution failed to prove guilt beyond doubt.

B. State/Respondent

Death occurred in matrimonial home; burden shifts to husband to explain circumstances.
Dying declaration recorded properly with medical certification; no reason for victim to falsely implicate
husband.
Hostility of witnesses due to influence; their earlier statements support prosecution.
Motive established: frequent quarrels due to appellant's drinking habit.
Circumstantial and medical evidence corroborates dying declaration.
Accused fled scene and gave vague replies under Section 313 Cr.P.C.

Analysis

Credibility of Dying Declaration:

Recorded by Magistrate with doctor's endorsement of mental fitness.
Contents coherent, consistent, and detailed.
Victim had no motive to falsely implicate her own husband at the point of death.
Court held it safe to base conviction solely on this evidence.

Medical Evidence:
560 INDIAN LAW REPORTS ALLAHABAD SERIES
90% burns compatible with allegation of kerosene fire.
Presence of injuries around neck inconsistent with theory of self-immolation.
Medical testimony supported prosecutorial narrative.

Hostile Witnesses:

Though witnesses retracted, earlier statements under Section 161 Cr.P.C. corroborated prosecution.
Their admissions regarding victim's statements in hospital support res gestae principle.

Conduct of Accused:

Fled after the incident and shown no involvement in last rites.
Gave evasive replies ("I do not know") regarding crucial circumstances.
These behaviours strengthened the inference of guilt (adverse conduct).

Burden Under Section 106 Evidence Act:

Incident occurred in marital home; appellant failed to explain how victim suffered fatal burns.
Court treated absence of explanation as an additional incriminating link.

Motive:

Frequent quarrels due to appellant's drinking habit established by victim's own statements.
Although motive is not essential, it reinforces prosecution case.

Suicide Theory Rejected:

No evidence that victim locked herself inside or poured kerosene voluntarily.
Injuries and dying declaration contradict suicide theory.
Accused's plea deemed afterthought and unsubstantiated.

Legal Threshold Satisfied:

Chain of circumstances complete.
Dying declaration voluntary and trustworthy.
Evidence meets standard of "beyond reasonable doubt."

Conclusion

The High Court upheld the conviction of the appellant Puran under Section 302 IPC for the murder
of his wife, Madhu. The Court found that the dying declaration, recorded by the Additional City
Magistrate in the presence of a medical officer, was truthful, voluntary, and reliable, forming the
foundation of the prosecution case. The medical evidence, circumstantial facts, and the conduct of the
appellant - particularly his failure to provide a credible explanation for the incident occurring inside
the matrimonial home - further strengthened the prosecution's version.

The defense theory of suicide was rejected as improbable and unsupported by evidence. Though
several witnesses turned hostile, their earlier statements and the consistent dying declaration provided
sufficient corroboration. The Court held that the prosecution had successfully proved the guilt of
the appellant

(Delivered by Hon'ble Naheed Ara Moonis, J.)
3 All. Puran Vs State OF U.P.
561

1. The instant appeal has been filed on behalf of the appellant challenging the judgment
and order dated 21.2.1985 passed by the Additional Sessions Judge Moradabad whereby the
appellant has been convicted and sentenced to undergo imprisonment for life in Sessions
Trial No. 75 of 1984 under section 302 IPC Police Station Katghar District Mordabad.

2. The emanation of facts as set up by the prosecution in a short conspectus is that
Balbir lodged a first information report on 5.11.1983 at 6.30 p.m. divulging the facts that his
sister Madhu was married with Puran, the sole appellant one & half year earlier to the
incident. Raj Bahadur who is the relative of the complainant resident of Katghar came to his
house and unfolded that his sister had sustained burn injuries and was admitted in the
District hospital Moradabad in a precarious condition. On getting the shocking news, the
complainant and his brother Ashok Kumar proceeded to District Hospital Moradabad to
know her condition. On reaching at the Hospital, their sister informed him that her husband
Puran (appellant) had thrashed in the night barbarously and brutally in an inebriated
condition and in the morning there was exchange of heated words between them on the issue
of consuming liquor. The appellant could not squeeze his anger and ire merely by thrashing
the victim. He poured kerosene oil setting her ablaze as a consequence of which the house
was also burnt. On the shriek and shrill of the victim, folk of the locality came on the spot .
The complainant further stated that the condition of his sister was deteriorating on account
of acute burn injuries hence appropriate action be taken.

3. On the basis of the said report, Ext. Ka.1,Ex.Ka.4 FIR was prepared and the case was
registered against the appellant under section 307 IPC vide Case Crime No. 478 of 1983 in
G.D. On registration of the first information report, investigating officer swung into action
and recorded the statement of the complainant Balbir and Ashok Kumar, real brother of the
victim , Dinesh and Hari Om , the Sardhoo of the accused appellant which were exhibited as
Ex.Ka.7.8,9 & 10.

4. On 5.11.1983 in the evening at about 5.10 p.m., dying declaration of the victim was
recorded by V.P.Sharma Addl.City Magistrate Moradabad in the presence of Dr. Y.C. Gupta
who had declared her in a fit state of mind to give dying declaration. The victim had
unfolded that today in the morning her husband had brutally assaulted and had poured
kerosene oil setting her ablaze. She had also divulged that there was fiery exchange of words
on the issue of consuming liquor . The appellant was in an inebriated state and thrashed her
in the previous night. The victim had also stated that her in laws who were living in the
lower portion had shifted to Delhi for the last two months. In the upper portion of the house
her Jeth Bhagwan Das was living. She was living in one room . The victim used to cook in
the same room . The kerosene oil was in the container. The appellant had bolted the door
after setting the victim ablaze and shouted that his wife had set herself ablaze. On the hue
and cry, her Jeth and Jethani came on the spot. They tried to extinguish the fire . The
appellant himself began to extinguish the fire on seeing other persons. Subsequent thereto
she became unconscious. The victim regained consciousness in the hospital . The rift
between the victim and the appellant aggravated on the issue of liquor as the appellant was
habitual drunkard and the victim was always trying to restrict him from taking liquor. The
562 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant was confronting the allegation of taking liquor by telling her lie but the quarrel
between the appellant and the victim could not be pacified. The appellant was highly
infuriated and set the victim ablaze after pouring kerosene oil. The victim did not permit the
appellant to enter inside the room in an inebriated state . The appellant slept in the room
down stair in the night. When the victim opened the door in the morning, the appellant came
inside the room and on account of intensive infuriation and ire , the appellant took the
drastic step of setting her ablaze . A number of persons including the females of the locality
came at the place of incident on the alarm and screaming of the victim.

5. On the aforesaid statement of the victim, V.P.Sharma, the Additional City Magistrate
had put a note that the thumb of the victim was not being straight hence the thumb
impression of right hand was taken. During the course of investigation, the victim died in
the hospital on 9.11.1983 at 10.05 p.m. on account of the severe burn injuries.

6. The investigating officer reached at the hospital on getting information regarding the
sad demise of the victim and conducted the inquest. After carrying out necessary formalities,
the corpse was sealed and was handed over to Dinesh Kumar and Madhur Murari along with
requisite papers vide Ext.Ka.14 & 15. The autopsy of the victim Smt. Madhu was conducted
on 10.11.1983 at 5.10 p.m. by doctor K.Khan in V.Z.Hospital Moradabad. The doctor had
found the face of the deceased disfigured due to burn injuries. The body of the deceased was
found to be burnt upto 90%. According to the doctor, the death of the victim was resulted on
account of shock due to burn injuries The case was converted under section 302 IPC from
section 307 IPC vide G.D. No. 52 dated 9.11.1983 at 11.45 p.m. The investigating officer
Raghunath Prasad ,S.I.who conducted the inquest report, recorded the statement of the
witnesses, prepared the site plan and sent the corpse to mortuary for autopsy was transferred
and the investigation was taken up by Inspector T.C.Tyagi. The investigating officer
collected credible and clinching materials showing the complicity of the appellant in the
commission of the said crime. He submitted the charge sheet against the appellant which
was proved by him as Ex.Ka.3.

7. The charge sheet was submitted under section 302 IPC finding involvement of the
appellant in the commission of the said offence. The case was committed to the Court of
Sessions for framing the charges. The Xth Addl.. Sessions Judge Moradabad framed the
charge against the appellant under sections 302 IPC which was read over and explained to
the appellant in Hindi. The accused appellant pleaded not guilty to the charge framed against
him under section 302 IPC and claimed to be tried .

8. The prosecution has examined nine witnesses out of whom four witnesses were
witnesses of fact namely Balvir Saran (P.W.1), Ashok Kumar (P.W.2), Dinesh (P.W.3) and
Hari Om P.W.4. The formal witnesses examined by the prosecution were namely
V.P.Sharma, Addl. City Magistrate, Moradabad P.W.5 who recorded dying declaration of
the victim Smt. Madhu. Dinesh Kumar constable who was entrusted the corpse of the
deceased for taking to the mortuary was examined as P.W.6. T.C.Tyagi Inspector who had
conducted the investigation and submitted the charge sheet was examined as P.W.7. Raghu
Nath Prasad S.I. who conducted the investigation, recorded the statement of the witnesses
3 All. Puran Vs State OF U.P.
563
,inspected the site and prepared the site plan (Ex.Ka.11) and the inquest report was
examined as P.W.8 . Dr. Y.C.Gupta who was posted as Medical Officer at the District
Hospital Moradabad on 5.11.1983 and had examined the victim Madhu prior to recording
her dying declaration in the presence of the Magistrate V.P.Sharma (P.W.5) and proved his
certificate was examined as P.W.9.

9. The statement of the appellant under section 313 Cr.P.C. was recorded wherein he
showed his ignorance by pleading innocence It was next stated by him that he has been
implicated in the present case due to personal grudge and animosity. However, the appellant
had not put forth any convincing material in support of his defence. Learned trial court
recorded conviction of the appellant relying upon the dying declaration of the victim and
held that the prosecution has proved the guilt of the appellant beyond reasonable doubt.

10. Heard Sri R.R.Singh ,learned counsel for the appellant and Sri Rajeev Gupta,
learned AGA appearing on behalf of State and have been taken through the record.

11. It is submitted by the learned counsel for the appellant that the trial court has
committed manifest error in convicting the appellant on the solitary evidence of dying
declaration which cannot be made a basis for conviction . There are various infirmities and
vulnerabilities in the so-called dying declaration of the victim. While recording the dying
declaration, the doctor has not certified that the victim was in a position to speak ,sensing
and seeing the manner of the incident. The victim had sustained 90% burn injuries and there
is no tangible evidence on the record confirming that the victim was in a position to speak in
the manner in which she gave her statement . In the absence of any certificate from the
doctor, the alleged dying declaration cannot be the sole basis for conviction. It is evident
that the doctor has not appended his certificate that the victim was in a fit state of mind to
depose. There is no motive on the part of the appellant to have poured kerosene oil on the
body of the victim and set her ablaze. The alleged dying declaration of the victim was not
found in order and reliable. No other person had attested the statement alleged to have been
made by the injured victim before the Magistrate. The prosecution had further unfolded that
one Raj Bahadur had informed the brother of the victim that his sister was admitted in the
District Hospital in a burnt condition who could be a trustworthy and reliable witness, was
not examined by the prosecution. In case the victim had sustained 90% burns then she could
not be in a conscious statement of mind divulging about the time, place and the manner
which is not consistent with the prosecution version. The appellant himself was burnt in the
process of dousing the fire so as to save the life of his wife. The victim had set herself ablaze
for the reasons best known to her and on her shriek and wailing , the appellant made his best
effort to save her life by extinguishing the fire and admitting her in the hospital which has
not been given due weight and considered by the learned trial judge. Further more all the
witnesses of fact have turned hostile. They have given affidavit disowning the prosecution
case and admitted that she had committed suicide. None of the prosecution witnesses has
supported the case and the conviction of the appellant merely on the basis of dying
declaration before the Magistrate that she was mentally fit to make the statement and the
same having not been corroborated by sworn testimony of the complainant himself cannot
be made the sole basis of conviction. There was no natural witness at the relevant time to
564 INDIAN LAW REPORTS ALLAHABAD SERIES
claim that he had seen the appellant assaulting the victim and pouring the kerosene oil to set
her ablaze. The learned trial judge has mis-appreciated and misread the entire evidence
without delving into depth whether the victim was fully possessed of the sense to understand
the implication of her statement and whether the same was made without any exterior
consideration whereas the alleged dying declaration reflects entirely a false version. The
accused appellant did not have any opportunity to test its veracity and verity by way of cross
examination and so it has to be scrutinized thoroughly so as to sift the grain from the chaff
or the truth from the falsehood. The appellant had remained in jail during trial for more than
two years. The life and liberty of the appellant has been curtailed merely on the dint of
suspicion while there is no credible and ocular testimony to support the prosecution case.
There is material inconsistency and conflict in the medical examination and the statement of
the witnesses which creates serious doubt about the manner of occurrence and its credibility
and verity. The learned trial judge has drawn wrong inference about the complicity of the
appellant in the commission of the said occurrence solely relying upon the testimony of the
doctor and the Magistrate. There is no incriminating material showing the complicity of the
appellant hence the conviction and the sentence of the appellant awarded by the trial court is
patently erroneous and may be set aside.

12. Per contra learned AGA opposed the contention of the learned counsel for the
appellant and contended that the victim had died at her matrimonial house . The onus of
proof lies upon the husband (appellant) to substantiate under what circumstances the victim
sustained fatal burn injuries. The first information report has been lodged in a natural and
unbleached manner. There is no exaggeration in the prosecution case. The appellant is the
husband of the victim and the victim had divulged the name of the appellant in her dying
declaration before the Magistrate. The doctor who had examined the victim prior to her
statement recorded his satisfaction that she was in a fit stateof mind to depose. Even if the
prosecution witnesses who are brothers of the victim and close relative of the appellant have
turned hostile will not overshadow the entire prosecution case. The formal witnesses who
recorded the dying declaration of the victim had no animosity to depose against the
appellant so as to entangle him falsely in the present case. There is no material on record to
discredit the dying declaration of the victim recorded by V.P.Sharma, Magistrate. It is
conspicuously clear that the victim Madhu was in a perceptible state of mind to give
statement and had narrated the prosecution case in a very natural manner. The Magistrate
who had recorded the dying declaration of the victim had obtained certificate of the doctor
on duty that the victim was in a conscious state of mind to give her statement. The victim
was admitted in the hospital and the witnesses who have turned hostile had supported the
prosecution case that the victim was admitted in burn condition and had conversed with
them. The slight aberration or deviation in the prosecution version will not exculpate the
appellant from his accountability as the victim had sustained fatal burn injuries at her
matrimonial house. V.P.Sharma (P.W.5) recorded the dying declaration of the victim in the
presence of Dr. Y.C.Gupta (P.W.9) Medical Officer. The victim had unfolded the
mischievous deed of her husband ( the appellant) accusing him for setting her ablaze by
pouring kerosene oil on her . There was no congenial term between the appellant and the
victim as the appellant was habitual of consuming liquor and the victim was resisting him
from indulging in the foul practice of consuming liquor. The appellant was highly irritated
3 All. Puran Vs State OF U.P.
565
and infuriated on account of resistance rendered by the victim in his recreation of consuming
liquor and had concerted his mind to eliminate her by setting her ablaze after pouring
kerosene oil kept in a container in the room. On account of severe and fatal burn injuries, the
victim shrieked and wailed loudly attracting the neighbours. There is nothing on record to
corroborate that the victim had committed suicide. The possibility of suicide had not been
proved by any cogent and convincing material showing that the door was bolted from inside.
On getting the information about the burn injuries of the victim, Balbir (P.W.1) went to see
his sister in the hospital . The victim had narrated the entire incident in a very natural and
unbleached manner accusing the appellant for setting her ablaze. The victim will not make
tutored statement implicating her husband at the crucial moment when she was grappling
with life.

13. Learned AGA has placed reliance upon a judgment of Hon'ble Apex Court in re
State of U.P.Vs. Ramesh Prasad Mishra & others AIR 1996 SC 2766 held that the evidence
of a hostile witness would not be totally rejected if spoken in favour of the prosecution or
the accused but required to be subjected to close scrutiny and that portion of the evidence
which is consistent with the case of the prosecution or defence can be relied upon. This has
been followed and re-iterated in many other decision enunciated by the Hon'ble Apex Court.
The statement of prosecution witnesses of fact cannot be rejected in its entirety merely
because the prosecution chose to treat them as hostile and not cross examined them. The
statement of such witnesses cannot be treated as obliterated or washed off the prosecution
case altogether. Their statement may be accepted to the extent so far as their version is
found to be acceptable on a careful scrutiny. The statement of the hostile witnesses cannot
be discarded as a whole as the relevant part supporting the prosecution case is admissible
under the law. The appellant has not put forth any satisfactory explanation to the
incriminating circumstances put in his examination under section 313 Cr.P.C. The alleged
incident had taken place inside the matrimonial house. The appellant had disowned all the
questions showing his ignorance with regard to the alleged incident and could not induce
any plausible explanation which prompted the victim to commit suicide. The trial court dealt
with all the incriminating materials whereby the appellant has been sentenced and convicted
finding him guilty beyond all reasonable doubt.

14. Having considered the rival submission advanced by the learneld counsel for the
parties, this Court is of the opinion that the dying declaration of the victim has been tested
on the anvil of judicial scrutiny. This fact cannot be over sighted that the incident had taken
place within a short span of marriage inside the matrimonial house and the victim had
sustained fatal burn injuries. Even if the defence theory is accepted, there is nothing on
record to corroborate that the appellant had made any attempt to approach to the authorities
concerned to report with regard to the alleged incident of suicide which itself tilts towards
gravamen of the offence showing the complicity of the appellant. There is no justification to
disbelieve the statement of P.W.1Balveer who had lodged the report on the basis of the
enquiry made by him from his sister as to how she had sustained burn injuries. The sister of
the complainant had narrated the incident in a very natural and unbleached manner that on
account of being highly inebriated state on the previous night ,her husband (appellant) had
thrashed her brutally and in the morning, the appellant could not pacify his ire and
566 INDIAN LAW REPORTS ALLAHABAD SERIES
indignation and on the exchange of some heated words ,the victim was again beaten badly
by him and out of intensive anger and wrath of the appellant poured kerosene oil and set her
ablaze. When the victim was burning, her cries and wailing attracted the neighbourhood.
According to the first information report,these words uttered by the complainant's sister is
admissible under section 6 of Indian Evidence Act which is described as res-gestae
evidence. The utterances made by the deceased on the verge of her death is by itself a
guarantee of truth connecting the circumsances leading to her death.

15. It is conspicuous from the record that the appellant had fled from the scene of
occurrence and was arrested from his house in the interregnum night of 22/23.11.1983 at
about 1.45 A.M. The act of disowning or ignorance on the part of the accused appellant
would not exculpate him from the charges. The appellant had shown ignorance of all the
incriminating circumstances in his statement under section 313 Cr.P.C. except admitting
solemnization of marriage with the victim and stated that he had falsely been implicated in
the present case due to personal vendetta which has not been fortified by any cogent and
convincing evidence . He had also shown his ignorance about the post mortem conducted by
the doctor on the corpse of his deceased wife. His ignorance further authenticates the
prosecution case which is an additional evidence that he was actively involved in setting the
victim ablaze who sustained fatal burn injuries. The investigating officer proved the
statement of the witnesses recorded under section 161 Cr.P.C. which were exhibited as
Ex.Ka.7,8,9 & 10. This itself shows that how all the witnesses have been won over during
the course of trial. The trial court had appreciated all the evidence with the connecting
circumstances and also delved into the proximity of the incident and the dying declaration of
the deceased. Dr. Y.C.Gupta who was posted at District Hospital Moradabad in his
deposition specifically stated that he had examined the victim prior to recording her dying
declaration by the Magistrate. The victim was mentally fit for making the statement. The
statement of the victim was duly recorded by V.P.Sharma, Magistrate (P.W.5) on 5.11.1983.
Dr. Y.C.Gupta had proved the statement of the victim which was exhibited as Ext.Ka.2. In
his examination in chief, he had further stated when the statement of the victim was being
recorded, no other person was present except he and the (P.W.9) Dr.Y.C.Gupta. In his cross
examination he had totally denied the suggestion specifying that he had not recorded any
statement that the certificate was given under the pressure of the police rather V.P.Sharma
had stated that he had taken full precaution at the time of recording the statement . The
victim was alert and sensitive and had given her statement in fulll consciousness. No-one
was present beside her at the time of recording her statement. After recording her statement
he had put his signature and it was read over to the victim ,thereafter the victim had put her
thumb impression. In cross examination, V.P.Sharma, P.W.5 had further specifically stated
that in the dying declaration ,he had not certified that the victim was in a position to depose
nor he had made any note that he had removed away all the persons standing there. He had
only interrogated how she had sustained burn injuries. P.W.5, V.P.Sharma had not
mentioned his own question put to her in the dying declaration thus the statement of the
P.W. 5 V.P.Sharma and the P.W.9 Dr. Y.C.Gupta, conspicuously shows that the victim was
in a position to give her statement which on her death has been treated as her dying
declaration. The Magistrate had taken proper precaution while recording the declaration.
3 All. Puran Vs State OF U.P.
567

16. In the examination of the aforesaid witnesses ,it is clearly mentioned that the dying
declaration was read over to the victim to authenticate its correctness. It is neither a rule nor
tradition to record the dying declaration in a form of questionnaire. Merely because this
question was not inserted in the dying declaration, it would not create any suspicion about
the verity of dying declaration. There is nothing on record to disbelieve the dying
declaration of the victim.

17. The testimony of the witness Balveer Saran who is the brother of the deceased
supported the prosecution case in the examination in chief but later on in the cross
examination , he changed his version stating that his sister was unconscious and had stated
that she had sprinkled kerosene oil herself and set ablaze herself which amply shows that the
witness Balveer Saran was won over and turned hostile. There is material consistency in his
statement viz.a.viz medical evidence and dying declaration to discard his testimony to the
extent which it does not support the prosecution case as incredible and untrustworthy. It is
well settled law that on the sole basis of dying declaration there is no impediment in basing
conviction without corroboration.

18. The accused appellant failed to discharge his moral duty by making his presence at
the last rites of the victim Smt. Madhu . The conduct of the appellant itself postulates active
participation in the commission of the said offence. The accused appellant has also failed to
elicit that he was so far away on the fateful day of occurrence that he could not be present at
the place of occurrence. The onus to prove unnatural death of his wife in his own house rests
on the accused appellant which is within his special knowledge and ought to have been
conclusively proved by him. On the one hand it has been argued that the victim has
committed suicide by pouring kerosene oil and setting herself ablaze but on the other hand,
the appellant in his statement under section 313 Cr.P.C. has made vague and bald denial
ofall the incriminating circumstances by saying ' Mujhe Malum Nahin' (I do not know) The
post mortem report shows that there were injuries around the body of the victim including
the neck and there is no explanation from the side of the accused appellant as to how the
victim had committed suicide and in what manner she had suffered injuries. The accused
appellant instead of saving the life of the victim had fled away from the hospital . The
learned trial judge has rightly given weightage to the statement of the victim i.e. dying
declaration who had supported the prosecution version in a very natural and convincing
manner. Such evidence cannot be ignored and thrown out because it is spontaneous flow of
actual facts showing connectivity of the accused appellant with the occurrence.

19. The statement of the witnesses of fact who had turned hostile cannot be drifted
away in toto if part of their statement hinges in favour of the prosecution. It is settled law
that evidence of hostile witnesses can also be relied upon to the extent to which it supports
the prosecution version. The prosecution version is corroborated by other reliable evidence.
It is highly onerous to assume how a witness reacts to a particular incident. It is the quality
of evidence and not the quantity which is gauged and weighed to prove a fact in issue. There
is ample evidence to prove in all human probability to connect that the victim Smt. Madhu
was done to death by the appellant and the appellant alone. The motive existing in the mind
of the accused appellant may not be within the access of others. However, it is the
568 INDIAN LAW REPORTS ALLAHABAD SERIES
perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt
a certain course of action leading to the commission of the crime. There is sufficient
evidence on record suggesting strong motive behind the commission of gruesome and
monstrous act of the appellant causing burn injuries to the victim Smt. Madhu. The
connectivity of the circumstances are conclusive in nature excluding any other probability
except the complicity of the accused appellant.

It is well settled law that section 106 of Evidence Act does not shift the burden of
proof in a criminal trial which is always upon the prosecution at the same time when the
accused person does not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis compatible with his
innocence, the court can consider his failure to adduce any explanation as an additional link
which completes the chain. The submission that the appellant has neither any motive nor
any role in the commission of the said incident hence the sentence and conviction of the
appellant resting solely upon the dying declaration is untenable. The guilt of the accused
appellant can very well be inferred from his conduct and surrounding circumstances coupled
with medical evidence on record. The gruesome crime has been committed with
preconcerted state of mind hence the appellant has rightly been convicted and sentenced
under section 302 IPC. The guilt of the appellant has been drawn from the circumstances
and the cumulative effect of the circumstances is so as to negate his innocence. There is no
reason why the victim would falsely implicate her husband . There is no suggestion in the
statement recorded under section 313 Cr.P.C. as to why victim had set herself ablaze leaving
one month old child.

From the prolix discussion, it emerges out that the involvement of the appellant in
the commission of the said offence stood proved beyond reasonable doubt. The witnesses of
fact (P.W.1, P.W.2 & P.W.3) have retracted from their statement and have made material
improvement at the time of trial and came up with the theory of suicide so as to shield the
genesis of the incident and to create doubt as to the mode and the manner of the incident
under which the victim sustained fatal burn injuries but the court below while appreciating
their evidence has rightly not attached undue significance to minor discrepancies and has
considered the broad spectrum of the prosecution version. The injured victim had
established the identity of the appellant which was neither tutored nor tainted. No material
contradiction was found affecting the credibility of her dying declaration. The gravamen of
the offence and the proved circumstances which shows the connectivity of the appellant
with the commission of the said crime also stands fully established. The victim had
succumbed to unnatural death on account of 90% burn injuries. Her dying declaration
recorded by P.W.