# Radhey Jaiswal & Ors v. State of U.P

- **Citation:** (2024) 3 ILRA 1550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Criminal Appeal No. 437 of 2017
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-jaiswal-ors-v-state-of-u-p-51543
- **Pages:** 23

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 498-A, 304-B, 323, 506, The
Dowry prohibition Act, 1961- Section 3/4,
Indian Evidence Act, 1872 - Section 32(1)
- dying declaration - Mental Fitness vs.
Consciousness - Separate Residence -
Hostile Witness - Corroborative Evidence -
The Code of criminal procedure, 1973 -
Section 313 - Power to examine the
accused - Recording of statement under
Section 313 of the Cr.P.C. is not an empty
formality during trial - Dying declaration
could only be relied upon if the deceased
was mentally fit and conscious at the time
of making it.(Para - 72,75)

Accused - appellant (Sasur i.e. Father-in-law)
and co-accused were convicted - for the alleged
murder of appellant's daughter-in-law - setting
her ablaze for dowry demands - incident took
place at appellant's daughter-in-law residence -
reportedly in her separate home from the
accused - Several witnesses, including family
members, turned hostile - case largely relied on
two recorded dying declarations - questioning
appellant's daughter-in-law mental fitness at the
time of her statements - Medical reports
indicated
severe
burns
-
court
found
discrepancies in the thumb impressions on the
declarations due to her injuries.(Para - 1 to 49)

HELD: - Court recorded statement under
Section 313 of Cr.P.C. but omitted to put
questions regarding a vital circumstance to
accused during his statement. Insufficient
credible evidence to satisfy the judicial mind
that the deceased was conscious and mentally
fit at the time of giving her statement.
Prosecution failed to substantiate the charges
against the appellants beyond a reasonable
doubt through consistent, cogent, and reliable
evidence. Without the dying declaration, the
prosecution case lacks substance, entitling the
appellants to the benefit of doubt. Judgment
and order of conviction quashed and is set
aside. (Para -72,75)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,794 of 79,016. This is a partial read: ask again with offset=39794 for what follows._

1550 INDIAN LAW REPORTS ALLAHABAD SERIES

Mr. Chetan Chatterjee, Advocate
was appointed an Amicus Curiae in the
instant case. He has rendered valuable
assistance to the
Court. The
Court
quantifies Rs.10,000/- to be paid to Mr.
Chetan Chatterjee, Advocate towards fee
for the able assistance provided by him in
hearing of the instant criminal appeal. The
said payment shall be made to Mr. Chetan
Chatterjee, Advocate by the Registry of this
Court within one month from today.
----------
(2024) 3 ILRA 1550
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 437 of 2017

Radhey Jaiswal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Raj Kishore Yadav, Sri Raj Kishore Yadav

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 498-A, 304-B, 323, 506, The
Dowry prohibition Act, 1961- Section 3/4,
Indian Evidence Act, 1872 - Section 32(1)
- dying declaration - Mental Fitness vs.
Consciousness - Separate Residence -
Hostile Witness - Corroborative Evidence -
The Code of criminal procedure, 1973 -
Section 313 - Power to examine the
accused - Recording of statement under
Section 313 of the Cr.P.C. is not an empty
formality during trial - Dying declaration
could only be relied upon if the deceased
was mentally fit and conscious at the time
of making it.(Para - 72,75)

Accused - appellant (Sasur i.e. Father-in-law)
and co-accused were convicted - for the alleged
murder of appellant's daughter-in-law - setting
her ablaze for dowry demands - incident took
place at appellant's daughter-in-law residence -
reportedly in her separate home from the
accused - Several witnesses, including family
members, turned hostile - case largely relied on
two recorded dying declarations - questioning
appellant's daughter-in-law mental fitness at the
time of her statements - Medical reports
indicated
severe
burns
-
court
found
discrepancies in the thumb impressions on the
declarations due to her injuries.(Para - 1 to 49)

HELD: - Court recorded statement under
Section 313 of Cr.P.C. but omitted to put
questions regarding a vital circumstance to
accused during his statement. Insufficient
credible evidence to satisfy the judicial mind
that the deceased was conscious and mentally
fit at the time of giving her statement.
Prosecution failed to substantiate the charges
against the appellants beyond a reasonable
doubt through consistent, cogent, and reliable
evidence. Without the dying declaration, the
prosecution case lacks substance, entitling the
appellants to the benefit of doubt. Judgment
and order of conviction quashed and is set
aside. (Para -72,75)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Jagbir Singh Vs St. (NCT of Delhi), (2019) 8
SCC 779

2. Paparambaka Rosamma Vs St. of A.P. (1999)
7 SCC 695:1999 SCC (Cri) 1361

3. Kanchy Komuramma Vs St. of A.P., 1996 SCC
(Cri) 31

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

5. Ramesh Harijan Vs St. of U.P., (2012) 5 SCC
777
3 All. Radhey Jaiswal & Ors. Vs. State of U.P.
1551
6. Reena Hazarika Vs St. of Assam, AIR 2018 SC
5361

7. Sharad Birdhichand Sarda Vs St. of Maha.,
AIR 1984 SC 1622

8. Sujit Biswas Vs St. of Assam, (2013) 12 SCC
406

9. Asraf Ali Vs St. of Assam, (2008) 16 SCC 328

10. Nar Singh Vs St. of Har., (2015) 1 SCC 496

(Delivered by Manish Kumar Nigam, J)

1. Criminal Appeal No. 437 of 2017
has been filed against the judgment and
order of conviction dated 31.07.2014
passed by Additional Sessions Judge, Court
No.4,
Maharajganj
and
the
sentence
awarded on 25.08.2014 in Sessions Trial
No. 18 of 2013 (State Vs. Radhey Jaiswal)
and Sessions Trial No. 101 of 2013 (State
Vs. Virendra @ Santosh Jaiswal and 3
others), whereby the sessions court has
convicted
Radhey
Jaiswal
(accusedappellant) in Sessions Trial No. 18 of 2013
(State Vs. Radhey Jaiswal) for offence
punishable under Section 302 I.P.C. and
sentenced him for life imprisonment and
has ordered him to pay a fine of Rs.
10,000/- (in default of payment of the fine,
he
had
to
further
suffer
rigorous
imprisonment for a period of one year). The
accused-appellants, Munna Jaiswal, son of
Radhey and Sita Devi, wife of Munna
Jaiswal, were also convicted by the
sessions court in Sessions Trial No. 101 of
2013 (State Vs. Virendra @ Santosh
Jaiswal and 3 others) for the offence
punishable under Section 302 I.P.C. and
sentenced them for life imprisonment and
has ordered them to pay a fine of Rs.
10,000/- (In case of default of the payment
of fine, they had to further suffer rigorous
imprisonment for a period of one year). All
the appellants in Appeal No. 437 of 2015
have been acquitted by the trial court under
Sections 498-A, 304-B, 506 I.P.C. and
under Section 3⁄4 Dowry Prohibition Act by
the same judgment.

2. The factual matrix of the case is
that the informant, namely, Chunni Devi,
wife of late Pradeep Jaiswal submitted a
written
complaint
(Ex.Ka-1)
dated
03.09.2012 on which the first information
report (Ex.Ka-8) was registered in Case
Crime No. 1041 of 2012 under Sections
498-A, 323, 506, 307 I.P.C. read with
Section 3/ 4 of Dowry Prohibition Act at
P.S.-
Ghughuli,
District-
Maharajganj
against Virendra @ Santosh s/o Radey
Jaiswal (husband), Munna s/o Radhey
(Devar i.e. Brother-in-law), Kaushilya w/o
Radhey (Saas i.e. Mother-in-law), Sita Devi
(Devarani i.e. Sister-in-law) and Radhey
Jaiwal (Sasur i.e. Father-in-law).

3. As per the first information report,
the informant stated that her daughter
Gudiya was married to Santosh s/o Radhey
Jaiswal about six years back. It was further
stated by the informant that her daughter
used to come to her house and used to
complain to the informant that Virendra @
Santosh used to torture her daughter for
dowry. On 02.09.2012 at about 3:00 A.M.
her daughter Gudiya was burnt. It was
further stated by the informant that
Virendra @ Santosh requested J.P. Jaiswal
son of unknown on mobile to get her
daughter eliminated and whatever money
would be required, the same will be paid.
On the instigation of J.P. Jaiswal, Munna
s/o Radhey Jaiswal, Sita Devi, Kaushilya
Devi and Radhey poured kerosene oil on
her daughter while she was sleeping in her
room and set her on fire. As she was
burning and crying, people from the
vicinity come and somehow the informant
came to know about the incident and
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
rushed to the District Hospital from where
her daughter was referred to Gorakhpur
Medical College and thereafter, admitted in
A-1 Hospital, Mohaddipur.

4. The statement of the patient i.e.
Gudiya was recorded on 02.09.2012 by the
Naib Tehsildar at about 02:25 P.M. at
Mohak
Hospital
Medical
College,
Gorakhpur (Ex. Ka-6/16) and thereafter
once again the dying declaration of Gudiya
was recorded on 08.09.2012 at about 07:15
P.M. by Naib Tehsildar, Sadar Gorakhpur
which was marked as Ex. Ka-7.

5. After the first information report
was lodged, the police investigated the
crime and after collecting the evidence a
charge-sheet
dated
23.11.2012
was
submitted against Radhey Jaiswal s/o Rangi
Lal Jaiswal (Ex. Ka-11) under Sections
498-A, 323, 506, 302 I.P.C. A second
charge-sheet
dated
19.12.2013
was
submitted by the Investigating Officer
against Virendra @ Santosh Jaiswal s/o
Radhey, Munna Jaiswal s/o Radhey, Smt.
Kaushilya Devi w/o Radhey and Sita Devi
w/o Munna Jaiswal (Ex. Ka-12) under
Sections 498-A, 323, 506, 302 I.P.C. The
learned Magistrate after taking cognizance
and complying with the provisions of
Sections 207 of Cr.P.C. committed the case
for trial to the court of Sessions. On
26.02.2013
Radhey
Jaiswal
(accusedappellant) was charged under Sections 498A, 304-B, 506 I.P.C and alternatively under
Section 302 I.P.C. and Section 3 of Dowry
Prohibition Act in Sessions Trial No. 18 of
2013 (State Vs. Radhey Jaiswal). Similarly
on 15.07.2013 Virendra @ Santosh Jaiswal,
Munna Jaiswal, Smt. Kaushilya and Sita
Devi were charged under Sections 498-A,
304-B and 506 I.P.C and alternatively
under Section 302 I.P.C. and Section 3 of
the Dowry Prohibition Act in Sessions Trial
No. 101 of 2013.

6. Since both the trials i.e. Sessions
Trial No. 18 of 2013 (State Vs. Radhey
Jaiswal) and Sessions Trial No. 101 of
2013 (State Vs. Virendra @ 3 others) under
Sections 498-A, 304-B, 506 I.P.C and in
alternative under Section 302 I.P.C. and
Section 3 of the Dowry Prohibition Act
arose from the same case crime number i.e.
Case Crime No. 1041 of 2012, the cases
were tried together and decided by a
common
judgment
dated
25.08.2014
passed by Addl. Sessions Judge Court No.
4 Maharajganj. The Sessions Trial No. 18
of 2013 (State Vs. Radhey Jaiswal) was
treated to be leading case and therefore, the
statements of witnesses were recorded in
S.T. No. 18 of 2013.

7. During the trial, statements of 18
persons were recorded by the prosecution,
namely, Chunni Devi, (mother of the
deceased) as P.W.-1, Dinesh (uncle of the
deceased) as P.W.-2, Sonu Jaiswal (brother
of the deceased) as P.W.-3, Dinesh
Madhesia (independent witness) as P.W.-4,
Prabhunath (independent witness) as P.W.-
5,
Dinnanath
Madhesia
(independent
witness) as P.W.-6, Awadesh Jaiswal
(independent
witness)
as
P.W.-7,
Rambriksha Rai (Sub-Inspector of Police
Station- Gulhariya,, District- Gorakhpur) as
P.W.-8, Santosh Kumar Rai (Tehsildar
Sadar-Gorakhpur)
as
P.W.-9,
Latawan
Yadav (Constable) as P.W.-10, Jitendra
Yadav (Sub-Inspector, Paniyara, JanpadMaharajganj) as P.W.11, Ram Nayan Yadav
(Station In-charge, P.S. Farenda, District-
Maharajganj) as P.W.-12, Mohd. Shakeel
(Medical Officer of Community Health
Centre, Chauri Chaura) as P.W.-13, Dr.
Bhanu Pratap Singh (Medical Officer
District Hospital, Maharajganj) as P.W.-14,
3 All. Radhey Jaiswal & Ors. Vs. State of U.P.
1553
Shashank Shekhar Rai (Naib Tehsildar
Khajni District- Gorakhpur) as P.W.-15, Dr.
Chandra Dev (Emergency Medical Officer
D.R.T. Medical Officer, Gorakhpur) as
P.W.-16. Dr. Ashok Kumar Srivastava
(Medical Superintendent, Nehru Hospital)
as P.W.-17 and Ram Pyare Yadav (Head
Constable) as P.W.-18, in support of
prosecution case.

 8. The statements of all the accused
namely, Radhey Jaiswal, Virendra @
Santosh Jaiswal, Smt. Kaushilya w/o
Radhey Jaiswal, Munna Jaiswal s/o Radhey
Jaiswal and Sita Devi w/o Munna Jaiswal
were recorded under Section 313 Cr.P.C.
and
on
behalf
of
accused-appellants
statement of Prabu Madhesia s/o Rajendra
Pratap was recorded as D.W.-1.

9. The prosecution produced written
complaint (Ex.-Ka-1), F.I.R. (Ex. Ka-8),
dying declaration dated 08.09.2012 (Ex.
Ka-7),
statement
of
patient
dated
02.09.2012 (Ex.Ka 6/16), bed head ticket
dated 02.09.2012 (Ex. Ka-14), injury report
dated 02.09.2012 (Ex. Ka-15), post-mortem
report dated 10.09.2012 (Ex. Ka-13),
panchayatnama dated 10.09.2012 (Ex. Ka2), charge-sheet dated 23.11.2012 (Ex. Ka11), charge-sheet dated 19.12.2013 (Ex.
Ka-12) as documentary evidence during
trial. After considering the entire evidence
the learned Sessions Judge acquitted
accused-appellants,
namely,
Radhey
Jaiswal, Munna Jaiswal, Smt. Kaushilya,
Sita Devi and accused Virendra @ Santosh
under Sections 498-B, 304-B, 506 and
Section 3 of Dowry Prohibition Act.
Accused Virendra @ Santosh Jaiswal was
also acquitted under Section 302 I.P.C.
Accused/appellants,
namely,
Radhey
Jaiswal, Munna Jaiswal, Smt. Kaushilya
and Sita Devi were however convicted
under Section 302 I.P.C. and were
sentenced with life imprisonment and fine
of Rs. 10,000/-. In case of default, they
were to further undergo one year rigorous
imprisonment.

10. Heard learned counsel for the
accused-appellants , learned A.G.A. for the
State and perused the record.

11. Learned counsel for the accusedappellants vehemently assailed the order of
conviction
and
made
following
submissions i.e:-

i.
Accused-appellants
are
innocent and have not committed any
offence as alleged by the prosecution.

ii. The order of conviction is
passed on conjecture and surmises.

iii. All the prosecution witnesses
of fact turned hostile and have not
supported the prosecution case.

iv. The sessions court had held all
the accused-appellants guilty under Section
302 I.P.C. only on the basis of the dying
declaration (Ex. Ka-7) and the statement of
Gudiya recorded on 02.09.2012 (Ex. Ka6/16).

v. The trial court erred in relying
upon the dying declaration as the same
does not inspire confidence.

vi. As per the post-mortem report
(Ex. Ka-13) deceased Gudiya sustained
severe burn injuries and the deceased
Gudiya was not in a position to give the
dying declaration.

vii. The evidence of Santosh
Kumar Rai, P.W.- 9, who recorded the
dying declaration Ex. Ka-7 on 08.09.2012
and of Dr. Chandra Dev P.W. 16, who had
given the fitness certificate for recording of
the dying declaration do not inspire
confidence. The evidence of P.W. 9 and
P.W. 16 create a strong suspicion about the
consciousness and mental fitness of the
1554 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, while the statement was being
recorded.
viii. The deceased was living separately
from the accused-appellants in a separate
house where she was burnt at about 03:00
A.M. without there being any evidence of
forced entry into the house by the accusedappellants,
who
were
charged
for
committing the alleged crime.
ix. The statements of the children of the
deceased, who were staying with the
deceased on the fateful night were not
taken and they were also not examined as
witnesses by the prosecution and lastly, it
was submitted by the learned counsel for
the appellants that the appellants were not
confronted with the dying declaration at the
time of recording of their statement under
Section 313 Cr.P.C. and therefore, the same
cannot be relied upon and has to be
excluded from evidence.

12. Per contra, learned A.G.A. for the
State refuted the submissions made by the
learned counsel for the appellant and made
the following submissions:-

i. Sessions court rightly relied
upon the dying declaration of the deceased
for convicting the accused as the witnesses
of fact were won over by the defence.

ii. There is no impediment in
convicting the accused only on the basis of
dying declaration without there being any
other corroborative evidence.

iii. From the evidence of P.W. 14
and P.W. 16 it is established that the
deceased was physically and mentally fit
while recording the dying declaration by
P.W. 9 and P.W. 15 and they were
independent witnesses and there is no
suggestion by the defence as to why P.W. 9
and P.W. 15 would give false evidence
against the accused-appellants.

iv. Not putting a question to the
accused with regard to dying declaration
(Ex. Ka-7) and Ex. Ka-6/16 during
questioning the accused under Section 313
Cr.P.C. will not vitiate the trial and the
accused had to establish the prejudice
caused to them and it was lastly submitted
by the A.G.A. that sessions court rightly
passed
the
judgment
convicting
the
accused-appellants after considering the
entire evidence and the appeal has no
merits and is liable to be dismissed.

13. With the help of both the counsels,
learned counsel for the accused-appellants
and the learned A.G.A. for the State, we
have perused the record of the case from
which it is clear that P.W. 1 Smt. Chunni
Devi, who was mother of the deceased
Gudiya had not supported the prosecution
version and was declared hostile by the
prosecution. P.W. 1 -Chunni Devi in her
examination-in-chief stated that Gudiya
was her daughter and she was married
about six years back with Virendra @
Santosh. They gave all the Dan-Dahez,
jewellery and other household items, which
was agreed earlier but could not give the
motor-cycle. Chunni Devi in her statement
stated that Radhey Jaiswal, his wife and his
sons Virendra @ Santosh, Munna and wife
of Munna, used to torture her daughter
Gudiya for motor-cycle and this was
informed by Gudiya to her mother Chunni
Devi on mobile phone. On the date of
incident, her son-in-law Virendra @
Santosh was in Saudi Arabia and Virendra
instructed on telephone to one J.P. Jaiswal
that before he returns from Saudi, Gudiya
be killed and whatever money will be
required, he will pay the same. This was
informed by her daughter as she heard J.P.
Jaiswal talking to her son-in-law Virendra
and informed her on phone. It was further
stated that on the date of incident at about 8
3 All. Radhey Jaiswal & Ors. Vs. State of U.P.
1555
to 9 P.M. her daughter informed her on
phone that accused/appellants would kill
her and then P.W. 1 stated to her daughter
that she would come the next day but on
the same night at around 3:00 P.M. her
daughter Gudiya informed her on mobile
phone that all the accused-appellants had
burnt her after pouring kerosene oil on her
body. When the next morning P.W. 1
reached the house of her daughter, she was
informed on mobile phone that Radhey and
her daughter were in Maharajganj Hospital
and when she reached the hospital, she
found her daughter to be fully burnt and
was crying. Thereafter, she was taken to the
medical college where she was admitted at
about 10-11 A.M. After being admitted for
two days in the medical college, she was
shifted to a private hospital where she
remained for four days and thereafter, she
was again referred to medical college. The
statement of Gudiya was recorded twice at
the Medical college and her daughter was
fully conscious while she was admitted in
the medical college. After the condition of
her daughter become stable Chunni Devi
P.W.-1 got an application drafted by
someone and after signing the same, gave it
to the Police Station- Ghughuli and got the
same registered. Gudiya died six days after
the incident at the medical college. In her
cross-examination, P.W.1 stated that she
had not dictated the complaint but the same
was transcribed by one child, which was
not read over to her that what was written
in that she did not know and she had put
her signature over the same. When
confronted
with
her
statement
in
examination-in-chief, P.W. -1 stated that the
(Ex. Ka-1) was never read over to her, she
was unable to read the Ex. Ka-1 because
she was not literate. In her crossexamination, P.W.1 stated that she had no
personal knowledge of the torture of her
daughter by the appellants and stated that
the said fact was informed to her by certain
persons residing nearby the house of her
daughter. In her cross-examination, she
further stated that Gudiya had no mobile
phone, she never talked to her from her
sasural (in-law's house). It was also stated
by P.W. 1 in her statement that mother,
father, brother and the brother's wife of her
son-in-law Virendra resided separately in
another house separate from her daughter's
Gudiya. It was also stated that her daughter
never told her about the talks between J.P.
Jaiswal and her son-in-law and the said fact
was narrated by the P.W.-1 in her
examination-in-chief on the basis of
information given on phone by certain
persons of Ghughuli, whose names were
not known to her. It was also denied by
P.W.-1 that on the date of incident, no
phone call was made by her daughter
informing that the accused appellants
would kill her. In cross-examination she
further denied that on the fateful night at
about 3 P.M. her daughter called P.W. 1 on
mobile phone. She further stated that her
daughter never informed how she was
burned because after being burned she was
unconscious
and
the
doctor
had
administered sleeping pills as well as
injections, therefore she could not inform
anything about the incident. In her crossexamination, she stated that twice some
Magistrate or Officer came to record the
dying declaration of Gudiya but on both the
occasions, her daughter could not give her
statement because she was unconscious and
on both the occasions Naib Tehsildar or
Tehsildar had not recorded any statement of
deceased Gudiya but had asked P.W.-1
regarding the incident and recorded the
information given by her. It was further
stated that her son-in-law Virendra @
Santosh was in Saudi Arabia on the date of
incident and Munna Jaiswal his wife Sita
Devi resided in a separate house and on the
1556 INDIAN LAW REPORTS ALLAHABAD SERIES
date of incident her daughter was all alone
in her house.

14. P.W.-2 Dinesh in his statement
stated that Gudiya was my Bhatiji, who
died 10-11 months back but P.W.2 had not
supported the prosecution version and was
declared hostile. It was stated by P.W.-2
that Gudiya had two daughters, namely,
Rani aged about six years and Neetu aged
about four years. It was also stated by P.W.-
2 in his cross-examination that about eight
months prior to the date of incident Munna,
Kaushilya, Sita Devi and Radhey had
separated from Virendra and Gudiya and
had started living separately in a house
which was after two to three houses away
from the house of Gudiya.

15. P.W.3- Sonu Jaiswal, the real
brother of the deceased Gudiya had also not
supported the prosecution story and was
declared hostile. In his cross-examination,
P.W.3 stated that his sister never informed
him anything as she was unconscious and
denied the suggestion that the deceased
Gudiya told P.W. 3 as she was conscious
that her in-laws along with J.P. Jaiswal had
killed her. P.W. 3 in his cross-examination
stated that the father, mother, brother and
sister-in-law of his brother-in-law-Virendra
were residing separately from Gudiya in
another house and at the time of incident
Gudiya was alone in her house. It was also
stated by P.W. 3 that on 02.09.2012 and
08.09.2012 when Tehsildar and Magistrate
came to record statement of Gudiya, she
was unconscious on both the occasions and
therefore, they recorded the statement of
her mother Chunni Devi because Gudiya
was not able to speak.

16. P.W.-4 Dinesh Madhesia, who was
an independent witness had also not
supported the prosecution version and was
declared hostile. P.W.-4 had denied the
suggestion in his cross-examination that
Gudiya told her that Radhey Jaiswal,
Munna Jaiswal and Kaushilya burnt her.

17. P.W.-5 Prabhunath, who was also
one of the independent witnesses had also
not supported the prosecution story and
was declared hostile. In his examination-inchief, P.W.-5 had stated that at about 04:00
A.M. Gudiya informed him on his mobile
phone that somebody has burned her and
when P.W.5 reached the house, he found
that Gudiya was lying out of the house in
Osara and no other person was present
there. It was also stated that Radhey,
Kaushilya were living separately in a
different house, which was about 40 to 50
mts. away from the house of Virendra. It
was also stated that Gudiya never informed
P.W.5 that her in-laws burnt her or had ever
tortured her for dowry. P.W.-5 in his
statement had denied the suggestion by the
prosecution that on the date of incident, the
deceased was living along with her in-laws,
brother-in-law or with the wife of her
brother-in-law.

18. P.W.-6 Dinnanath Madhesia, who
was also an independent witness had not
supported the prosecution version and was
declared hostile. It was stated by P.W.-6
that at about 04:00 A.M. in the morning,
when he reached the house of Virendra, he
found Gudiya in a burnt state and she never
told him that she was burnt by her in-laws.
P.W.-6 denied the suggestion that at the
time of incident deceased Gudiya was
residing with her in-laws in the same house
and had also denied the suggestion that the
deceased had informed the witness that her
in-laws, Devar and Devrani had tried to
burn her to death.
3 All. Radhey Jaiswal & Ors. Vs. State of U.P.
1557

19. P.W.-7 Awadesh Jaiswal, who
was also an independent witness examined
by the prosecution, did not support the
prosecution version and was declared
hostile. In his cross-examination P.W.-7 has
denied the suggestion that the deceased
Gudiya informed her that her in-laws,
Devar and Devrani have burnt her.

20. P.W.-8 Rambriksha Rai, SubInspector proved the Panchayatnama.

21. P.W.-9 Santosh Kumar Rai, Tehsildar
Sadar
proved
the
dying
declaration
recorded by him on 08.09.2012 and stated
that he recorded the dying declaration of
the deceased at the Medical College,
Gorakhpur. It was further stated that on
08.09.2012 at about 07:15 P.M., the doctor
after seeing Gudiya had informed him that
she was conscious and fit for recording the
dying declaration and the said statement
was endorsed by the doctor on the page on
which the dying declaration was recorded
on 08.09.2012 at about 07:15 P.M. It was
also been stated by the P.W.-9 that from the
appearance,
deceased
Gudiya
was
conscious and was in a position to get her
statement recorded. It was stated by P.W. -9
that he had put questions to Gudiya to
which she had replied and he had recorded
the same. It was stated by P.W.-9 that the
deceased "Gudiya" had stated that her
husband reside in Saudi Arabia and had
kept another women, she had two daughters
and her husband, in-laws, nanad and devar
did not want to keep her and wanted to
throw her out from her sasural (in-law's
house). It was stated by P.W.-9 that Gudiya
informed that on 01.9.2012 / 02.09.2012 at
about 02:00 A.M. she was sleeping in her
room
when
her
father-in-law-Radhey
Jaiswal, mother-in-law-Kaushilya, devarMunna, devrani-Sita Devi and nanadNirmala poured kerosene oil on her and set
her on fire and after she shouted, the
neighbours came. His father-in-law took
her to the District Hospital, Maharajganj
and after seeing the mother of the deceased
and other relatives he ran away. The
statement was read over to Gudiya and
thereafter, her right thumb impression was
taken over the statement. The statement of
Gudiya was recorded at 07:15 P.M. which
was completed by 07:30 P.M. It was also
stated by P.W.-9 that before the statement
of Gudiya was recorded the Emergency
Medical Officer endorsed her to be fit for
recording the dying declaration and after
completion
of
the
statement,
the
Emergency
Medical
Officer
put
his
signatures. At the time of recording of the
statement of Gudiya, nobody else was
present in the room except the P.W.9. The
statement so recorded by the P.W.-9 was
shown to the witness, which he endorsed
and was marked as Ex. Ka-7. The P.W.-9
had also proved the Inquest Report. In his
cross-examination, P.W.-9 stated that he
could not tell the name of the Medical
Officer, who informed him after seeing
Gudiya that she was in a fit state for getting
the dying declaration recorded. In his crossexamination, it was further stated by P.W.-9
that he had not noted in the dying
declaration (Ex. Ka-7) that Gudiya was
conscious and was in a state to give the
evidence. It was written " मैं गुवडया पत्नी सांिोर् पुरे
होर्शो हवार्श में बयान करिी ह ाँ". In his crossexamination P.W.-9 also stated that he
asked questions to the deceased Gudiya, to
which she replied but the dying declaration
was not recorded in a question and answer
form. It was further stated by P.W.-9 that
before recording the dying declaration her
family members i.e. her mother and brother
were present in the room but at the time of
recording the statement they were asked to
go. It was also stated by P.W.-9 that while
recording the dying declaration he never
1558 INDIAN LAW REPORTS ALLAHABAD SERIES
informed the deceased that he was a
Magistrate and that he had come for
recording her statement. It was also stated
by the P.W.-9 that Emergency Medical
Officer identified the deceased Gudiya and
her thumb impression.

22. P.W.-10 Latawan Yadav, was the
Police Constable who proved the Chik
F.I.R.

23. P.W.-11 Jitendra Yadav, SubInspector stated that he had taken over the
investigation on 11.10.2012, proved the
Naksha Nazri, Panchayatnama and also
proved the chargesheet. In his crossexamination P.W.-11 had admitted that at
the time of dying declaration, there was no
fitness certificate.

24. P.W.-12 Ram Naresh Yadav,
S.H.O., has proved the initial investigation
and stated that on 05.09.2012 the mother of
the deceased informed that deceased was
not in a position to give statement.

25.

P.W.-13
Mohd.
Shakeel,
Consultant, Kaili Hospital, Basti had stated
that on 10.09.2012, he was posted at
Community Health Centre, Chauri Chaura
as Medical Officer. P.W.-13 proved the
post-mortem. In his cross-examination,
P.W.-13 stated that inside portion of the
right hand of the deceased was burned. It
was also stated that the palm of the right
hand and thumb of the right hand both were
burned.

26. P.W.-14 Dr. Bhanu Pratap Singh
stated that on 02.09.2012, he admitted the
deceased at 08:00 A.M. at the District
Hospital, Maharajganj as the case of burn
injury. It was also stated that the victim was
conscious. The father-in-law of the victim,
who brought the victim informed P.W. 14
that at about 02:00 A.M., she was burned
which he had noted. It was also stated by
P.W.-14 that the injured was administered
injections, Injection ceferiaxon 1 mg,
Injection Gentamucin 80 MI, Injection
Dyclo, Injection Ranitidine and Injection
Compose I.V. Fluid R.L. It was also stated
that the injured was referred to Medical
College and had also proved the bed head
ticket. The doctor denied the suggestion
that in the medico-legal register, the thumb
impression was of some other person and
not of the deceased.

27. P.W.-15 Shashank Shekhar Rai,
Naib Tehsildar proved the statement of the
victim recorded by him on 02.09.2012 and
stated that when he reached the Medical
College, Gorakhpur, the deceased Gudiya
was admitted in the burn ward and the
doctor of the medical college had orally
informed that Gudiya was fit for giving
statement. It was also stated by the P.W.-15
that at about 02:05 P.M., he had recorded
the statement of Gudiya, wherein she stated
that about 03:00 A.M., when she was
sleeping in her sasural and her father-inlaw-Radhey,
her
mother-in-law
and
brother-in-law-Munna and Munna's wife
poured kerosene oil on her and set the fire
and she was brought to the hospital by
Radhey. It was also been stated that after
the statement was recorded, the same was
read over to Gudiya and after that he called
Emergency Medical Officer, who was
outside. The Emergency Medical Officer
got the thumb impression of Gudiya which
was also verified by the E.M.O. It was also
certified by the E.M.O. that Gudiya was
conscious prior to, at the time and after
recording of the evidence and had put her
signature. It was also been stated that he
inquired Gudiya and whatever she said,
same was recorded by him. P.W.15 denied
the suggestion that the right thumb of
3 All. Radhey Jaiswal & Ors. Vs. State of U.P.
1559
Gudiya was burned and the thumb
impression at Ex.Ka 6/16 was not of
Gudiya. It was admitted by the P.W.-15 that
fitness certificate was given orally by the
doctor, the doctor never gave certificate in
writing as to fitness of Gudiya.

28. P.W.-16 Dr. Chandra Dev, E.M.O.
proved the endorsement of fitness given by
him
on
08.09.2012.
In
his
crossexamination, the P.W.-16 has stated that
during the time of recording the statement,
the fact regarding her fitness was recorded
on the basis of presumption as neither the
victim nor the Naib Tehsildar had informed
anything against it.

29. P.W.-17 Dr. Ashok Kumar has
stated that on 02.09.2012, he was posted at
Nehru
Hospital,
Medical
College
Gorakhpur as E.M.O. and stated that he had
informed orally to the Naib Tehsildar that
she (deceased) was fit to give her statement
and after recording the same, the P.W.-17
was called by the Naib Tehsildar and
thereafter, he went inside and gave a
certificate to the effect that Gudiya was fit
before, during and after the recording of the
statement.

30. P.W.-18 Ram Pyare Yadav, Head
Constable has proved the police papers and
is a formal witness.

31. From the oral evidence as referred
above, we find that all the witnesses of fact
had not supported prosecution version and
were declared hostile by the prosecution.
The sessions court relied upon the dying
declaration (Ex. Ka-7) and the statement of
the deceased (Ex. Ka-6/16) and convicted
the accused appellants under Section 302
I.P.C. Since all other witnesses were
declared hostile, the court acquitted the
accused-appellants
for
charges
under
Sections 304B, 498A, 506 and 3/4 Dowry
Prohibition Act.

32. It has been submitted by the
learned Counsel for the appellant that since
all the witnesses of fact had not supported
the prosecution version, learned sessions
court ought not have convicted the
accused-appellant only on the basis of
dying declaration of the deceased without
there
being
any
other
corroborative
evidence. In this regard, submission of
learned AGA on behalf of the State is that
there is no impediment in relying upon
dying declaration of the deceased without
there being any corroborative evidence.

33. The question that whether a
conviction can be recorded only on the
basis of dying declaration without there
being any corroborative evidence is no
more res-integra as the dying declaration is
a substantive piece of relevant evidence in
view of Section 32(1) of the Evidence Act.
Under Section 32, when a statement is
made by a person, as to the cause of death
or as to any of the circumstances which
resulted in his death, in cases in which the
cause of person's death comes in to
question, such a statement, oral or in
writing, made by the deceased to the
witness is a relevant fact and is admissible
in evidence. The statement made by the
deceased before death is called a "dying
declaration".

34. It is also a settled principle of law
that dying declaration is a substantive
evidence and an order of conviction can be
safely recorded on the basis of dying
declaration.

35. It would be appropriate here to
remind ourselves that generally, there are
two issues with respect to a dying
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration. The first one would be,
whether the declaration was actually made.
Naturally, this would be assessed on the
basis of the evidence of the witnesses, who
claim that such declaration was made and
witnessed by them. There would be a
question of accuracy of the recording of
such declaration, if made or maintained by
such witnesses. If the evidence in that
regard is satisfactory, the Court would
come to a conclusion that a particular
statement was, indeed, made by the
deceased. It is not the end of the matter, the
Court thereafter would be required to
decide whether such statement made by the
deceased was true. In other words, the fact
of having made the statement and the
truthfulness of the said statement are both
required to be established before a
declaration is termed as reliable.

36. For ascertaining the truthfulness of the
statement
of
a
dying
person,
the
parameters, which are applied to the
witnesses while judging reliability of their
evidence, must be applied. The reliability
of a version of a witness would depend on
several
factors
including
opportunity
available to witness to know, physical and
mental capacity of the patient to convey,
kind of treatment which the patient was
undergoing, chances of tutoring, relation of
witness with patient and so on. The law
does not afford to take a risk of blindly
relying on the statement only because it has
been recorded by Executive Magistrate.
Usual scrutiny from every possible angle is
must and evidence of Executive Magistrate
must withstand the test of reliability.

37. In Jagbir Singh Vs. State (NCT
of Delhi) reported in (2019) 8 SCC 779,
the Supreme Court reiterated "It is also a
settled
principle
of
law
that
dying
declaration is a substantive evidence and
an order of conviction can be solely
recorded on the basis of dying declaration
provided the court is fully satisfied that the
dying declaration made by the deceased
was voluntary and reliable and the author
recorded the dying declaration as stated by
the deceased. This Court laid down the
principle that for relying upon the dying
declaration the court must be conscious
that the dying declaration was voluntary
and further it was recorded correctly and
above all the maker was in a fit conditionmentally and physically- to make such
statement."

38. In the light of such settled legal
position, the facts of the case are to be
assessed. On the basis of the factual aspects
one has to independently decide whether
the evidence of dying declaration inspires
confidence. The principles would provide a
guide but one has to decide the worth of a
dying declaration only on the basis of facts
and the attendant circumstances. The law is
well settled that there is no specific format
for writing a dying declaration, meaning
thereby, written dying declaration can be in
any form, but the essence is, it should
inspire full confidence of the Court
regarding its correctness and the statement
of deceased was not a result of tutoring or
product of imagination. More importantly,
there should be evidence that the victim
was well oriented and in a fit state of mind
to give statement. It is duty of the recorder
to satisfy himself that the deceased was in
fit mental condition to give the statement
and later the Court should also satisfy that
the deceased was in a fit state of mind
while giving statement.

39. Learned counsel for the appellants
contended that the first statement as alleged
to have been recorded of the deceased was
on 02.09.2012 at about 02:25 P.M. by the
3 All. Radhey Jaiswal & Ors. Vs. State of U.P.
1561
Naib Tehsildar. Learned counsel for the
appellants drew over attention to Ex.- Ka
6/16, wherein there was an endorsement by
the Medical Officer that patient was
conscious before, during and after the
recording of the statement. The counsel
further drew over attention to the statement
of P.W. 17-Dr. Ashok Kumar Srivastava,
who
made
the
aforementioned
endorsement. In his statement, P.W.-17 has
stated that after examining and seeing the
deceased to be conscious, P.W.-17 informed
the Tehsildar (who recorded the statement)
orally that "मरीज गुवडया म्र्तत्युपुवा बयान िेने के वलए उपुक्त
है" and thereafter, he left the room, after
recording the statement Naib Tehsildar
called P.W.-17 and after seeing patient
Gudiya, it has been stated by P.W.-17 that
he has given a certificate that patient
Gudiya was conscious prior to, during and
after the statement. After recording such a
statement on the dying declaration, the
same was authenticated by putting the right
thumb impression of Gudiya. It has further
stated by P.W.17 that P.W.17 has not
mentioned in the certificate that Gudiya
was mentally fit for recording of dying
declaration.

40. Learned counsel for the appellants
contended that there is a distinction
between consciousness and fitness of a
state of mind to make a statement. Learned
counsel for the appellants relied upon
judgment of Supreme Court Paparambaka
Rosamma Vs. State of A.P. (1999) 7 SCC
695:1999 SCC (Cri) 1361, wherein Apex
Court has drawn distinction between
consciousness and fitness of state of mind
to make a statement and observed in
paragraph no. 9 as under:-

"9. It is true that the medical
officer Dr. K.Vishnupriya Devi (PW 10) at
the end of the dying declaration had
certified
patient
is
conscious
while
recording the statement. It has come on
record that the injured Smt. Venkata
Ramana had sustained extensive burn
injuries on her person. Dr. P.Koteswara
Rao (PW 9) who performed the post
mortem stated that injured had sustained
90% burn injuries. In this case as stated
earlier, the prosecution case solely rested
on the dying declaration.