# Rameshwar Lal Chauhan (In Jail) v. State of U.P

- **Citation:** (2023) 6 ILRA 370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Criminal Appeal No. 6920 of 2017
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-lal-chauhan-in-jail-v-state-of-u-p-50474
- **Pages:** 25

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 , Indian Evidence Act, 1872 -
Section 32(1) - dying declaration is a
substantive piece of relevant evidence -
an order of conviction can be safely
recorded on the basis of dying declaration
- but it has to be considered as another
piece of evidence - to be judged in the
light of surrounding circumstances - with
reference to the principles governing the
weighing evidence - if it is not found
wholly trustworthy or truthful, it should
not form the sole basis of conviction
without corroboration.(Para -21, 25, 54)

(B)
Words
and
Phrases
-
"Nemo
Moriturous Praesumitur Mentire" - a man
will not meet his maker with a lie in his
mouth.(Para -24)

(C) Criminal Law - The Code of criminal
procedure,
1973
-
Section
313
-
importance of statement under Section
313 of Cr.P.C., Sub-clause (5) - court to
take help of prosecution and defence in
preparing relevant questions which are
put to the accused - Court should not miss
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
371
putting any incriminating circumstance to
the
accused
while
recording
his
statement.(Para - 75)

Statement of deceased in her statement (dying
declaration) - accused poured Kerosene on her
person and set her on fire - Trial court convicted
accused-appellant only on basis of dying
declaration - other witnesses of fact not
supported prosecution version - turned hostile -
no question with regard to the dying declaration
- not put to appellant at the time of recording
statement under Section 313 Cr.P.C. - prejudice
caused to accused.(Para -26, 64, 74)

HELD:-Evidence on the dying declaration is
doubtful and cannot be relied upon by the
judicial mind. Prosecution failed to substantiate
charges beyond reasonable doubt. If the dying
declaration is excluded, nothing remains in the
prosecution case. Appellant-accused entitled to
avail the benefit of doubt. Impugned judgment
and order of conviction set aside.(Para -77)

Criminal Appeal allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,888 of 82,805. This is a partial read: ask again with offset=39888 for what follows._

370 INDIAN LAW REPORTS ALLAHABAD SERIES

82. The Court's discretionary power
to impose a sentence should not be used
indiscriminately in a routine, casual and
cavalier manner. The special and adequate
reasons must be recorded for awarding life
imprisonment. Regrettably, we noticed that
the trial court has failed to record the
reason for awarding life imprisonment in
the facts- circumstances of the case.

83. That the accused has not caused
any physical injury to the victim, the
accused-appellants
come
from
an
impoverished socio-economic background,
have a family comprising an aged father,
and have unblemished jail conduct. When
all these factors are added together, it is
also visualized that there is nothing on
record to rule out the probability of
reformation and rehabilitation of the
appellant. He is a man of clean antecedents;
otherwise, nothing is brought on record to
prove the contrary.

84. For the reasons elucidated herein
above, we deem it appropriate to partly
allow the appeal and modify the sentence,
and award the rigorous imprisonment for a
term of twenty years with a fine of Rs.
50,000/- and in default of payment of fine
two years additional imprisonment and
with R.I. for the offence of rape, and one
year sentence under section 323 IPC. We
refrain to award punishment under Section
5 (m)/6 of POCSO Act 2012, because of
the mandate of Section 42 of the POCSO
Act, 2012.

85.

The
accused-appellant's
incarceration period in the aforesaid case
crime shall be adjusted as per law. The fine
imposed upon the accused shall be given to
the victim " X" as compensation.
----------
(2023) 6 ILRA 370
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

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

Criminal Appeal No. 6920 of 2017

Rameshwar Lal Chauhan
 ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajeev Kumar Singh, Sri Divyanshu
Nandan Tripathi, Sri P.K. Singh

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 , Indian Evidence Act, 1872 -
Section 32(1) - dying declaration is a
substantive piece of relevant evidence -
an order of conviction can be safely
recorded on the basis of dying declaration
- but it has to be considered as another
piece of evidence - to be judged in the
light of surrounding circumstances - with
reference to the principles governing the
weighing evidence - if it is not found
wholly trustworthy or truthful, it should
not form the sole basis of conviction
without corroboration.(Para -21, 25, 54)

(B)
Words
and
Phrases
-
"Nemo
Moriturous Praesumitur Mentire" - a man
will not meet his maker with a lie in his
mouth.(Para -24)

(C) Criminal Law - The Code of criminal
procedure,
1973
-
Section
313
-
importance of statement under Section
313 of Cr.P.C., Sub-clause (5) - court to
take help of prosecution and defence in
preparing relevant questions which are
put to the accused - Court should not miss
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
371
putting any incriminating circumstance to
the
accused
while
recording
his
statement.(Para - 75)

Statement of deceased in her statement (dying
declaration) - accused poured Kerosene on her
person and set her on fire - Trial court convicted
accused-appellant only on basis of dying
declaration - other witnesses of fact not
supported prosecution version - turned hostile -
no question with regard to the dying declaration
- not put to appellant at the time of recording
statement under Section 313 Cr.P.C. - prejudice
caused to accused.(Para -26, 64, 74)

HELD:-Evidence on the dying declaration is
doubtful and cannot be relied upon by the
judicial mind. Prosecution failed to substantiate
charges beyond reasonable doubt. If the dying
declaration is excluded, nothing remains in the
prosecution case. Appellant-accused entitled to
avail the benefit of doubt. Impugned judgment
and order of conviction set aside.(Para -77)

Criminal Appeal allowed. (E-7)

List of Cases cited:

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

2. Paniben Vs St. of Guj. , (1992) 2 SCC 747

3. Nallapati Sivaiah Vs S.D.O., Guntur, A.P. ,
(2007) 15 SCC 465

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

5. KanchyKomuramma Vs St. of A.P. , 1996 SCC
(Cri) 31

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

7. Ramesh Harijan Vs St. of U.P. , (2012) 5 SCC
777

8. Reena Hazarika Vs St. of Assam , AIR 2018
SC 5361

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

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

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

12. AndugulaShankaraiah Vs St. of A.P. , 2012
CRI.L.J.189

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

14. Shivaji Sahabrao Bobade Vs St. of Maha. ,
(1973) 2 SCC 793

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This criminal appeal has been filed
against
the
judgment
and
order
of
conviction dated 30.11.2016 passed by
learned Addl. District and Sessions Judge,
Court no.7, Gorakhpur in Sessions Trial
No.153 of 2015 whereby the learned
Additional District and Sessions Judge,
Court
No.7,
Gorakhpur
(hereinafter
referred as 'trial court') has convicted
Rameshwar
Lal
Chauhan
(appellantaccused) s/o late Mishri Lal Chauhan for
the offence punishable under Section 302
IPC
and
sentenced
him
for
life
imprisonment and has ordered him to pay a
fine of Rs. 25,000/-. In the default of the
payment of fine, he had to further suffer
rigorous imprisonment for a period of one
year.
By
the
same
judgment dated
30.11.2016, learned trial Court acquitted
the other co-accused namely Smt. Bela
Devi, wife of late Mishri Lal Chauhan,
Bhuvneshwar Lal Chauhan slo late Mishri
Lal Chauhan, Parmeshwar Lal Chauhan,
s/o late Mishri Lal Chauhan under Section
498A, 304B, 323, 302 IPC and 3⁄4 Dowry
Prohibition Act.

2. The factual matrix of the case is
that the informant namely Sarju Chauhan
s/o late Pyare Lal Chauhan submitted a
372 INDIAN LAW REPORTS ALLAHABAD SERIES
written complaint Ex.Ka-1 on which the
First Information Report Ex.Ka-11 was
registered in Case Crime No.487 of 2014
under Section 498A, 304B, 323 IPC and
Section 3⁄4 Dowry Prohibition Act at P.S.
Cantt, Gorakhpur against Smt. Bela Devi,
widow of late Mishri Lal Chauhan (motherin-law),
Bhuvneshwar
Lal
Chauhan,
Kamleshwar Lal Chauhan, Parmeshwar Lal
Chauhan, all sons of late Mishri Lal
Chauhan (brother-in-laws), Rameshwar Lal
Chauhan s/o late Mishri Lal Chauhan
(husband) and Anuradha d/o late Mishri
Lal Chauhan (Nanad).

3. As per the First Information
Report, the informant stated that his
daughter Pooja (deceased) was married to
Rameshwar
Lal
Chauhan
(appellantaccused) on 26.6.2012. It was further stated
that in the marriage, the informant had
given Rs.1,00,000/- cash, T.V., Fridge,
Washing Machine, Almirah, Bed and other
household goods but soon after the
marriage, his daughter-Pooja was harassed
by her mother-in-law, Bela Devi, husband,
Rameshwar Lal Chauhan, brothers-in-law
(devar),
Bhuvneshwar
Lal
Chauhan,
Parmeshwar Lal Chauhan and Sister-in-law
(Nanad), Anuradha for dowry. It was
further stated that all the persons used to
beat his daughter and whenever informant
visited daughter's place, he consoled his
daughter that with the passage of time,
everything would be alright but there was
no improvement in the behaviour of Saas,
Devar, Nanad and husband of the deceasedPooja. On 31.5.2014, aforesaid persons had
beaten his daughter for Rs.50,000/- and for
a ring (angoothi). Upon being informed, the
informant visited the house of his daughter
and brought her back to his house. On
2.6.2014, when the informant came back
with his daughter after her B.A. IIIrd year
examination, his son-in-law Rameshwar
Lal Chauhan took the daughter back to his
house . On 11.6.2014, deceased-Pooja
worked hard for making arrangements for
the marriage of her sister-in-law, Anuradha
and in the morning of 12.6.2014 at about 66:30 a.m., Pooja came from the place
where the marriage was being solemnized
in connection with some work. Her Devars
Bhuvneshwar
Lal
Chauhan
and
Kamleshwar Lal Chauhan also came to the
house and locked his daughter in a room
and poured kerosine oil and set her to fire.
On being informed by persons of the area,
informant came to his daughter's house and
saw that her daughter was burnt. With the
help of other people, informant admitted
his daughter to the District hospital, from
where she was referred to the medical
College, where during the course of
treatment she died at about 8-8:30 p.m on
12.6.2014.

4. The dying declaration Ex.Ka-8 of
the deceased-Smt. Pooja, was recorded on
12.6.2014 at about 10:20 a.m at B.R.D
Medical College, Gorakhpur by Naib
Tehsildar
posted
at
Tehsil
Sadar,
Gorakhpur.

5. After the First Information Report
was lodged, the Police investigated the
crime and after collecting the evidence, a
charge-sheet
Ex.Ka-10
was
submitted
under Section 173(2) Cr.P.C. against Smt.
Bela Devi, Bhuvneshwar Lal Chauhan,
Parmeshwar Lal Chauhan and Rameshwar
Lal Chauhan under Sections 498A, 304B,
323 IPC and Section 3⁄4 Dowry Prohibition
Act on 5.8.2014. The Investigating Officer
found that Kamleshwar Lal Chauhan
(devar) and Anuradha (nanad) were not
involved in the crime. The learned
Magistrate after taking cognizance and
complying with the provisions of Section
207 Cr.P.C. committed the case for trial to
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
373
the court of sessions on 16.4.2015. On
2.7.2015, Bela Devi, Bhuvneshwar Lal
Chauhan, Parmeshwar Lal Chauhan and
Rameshwar
Lal
Chauhan
(appellantaccused) were charged under Section
498A,
304B
and
alternatively
under
Section 302/34 IPC by the Sessions Judge,
Gorakhpur. During the trial, statement of
17
persons
were
recorded
by
the
prosecution namely Sarju Chauhan (father
of the deceased) P.W.-1, Sudhir Chauhan
(brother of the deceased) P.W.-2, Pushpa
Devi (mother of the deceased) P.W.-3,
Rajan Mishra (independent witness) P.W.-
4, Guddu Chauhan (independent witness)
P.W.-5,
Ramrati
Devi
(independent
witness) P.W.-6, Ashok Kumar Chauhan
(independent witness) P.W.-7, Ram Ashish
(independent
witness)
P.W.8,
Mohd.
Zeeshan (independent witness) P.W.-9,
Naushad (independent witness) P.W.-10,
Radhey
Shyam
Gupta
(independent
witness)
P.W.-11,
Subhash
Chandra
Chauhan (relative of the accused husband)
P.W.-12, Nitish Kumar Chauhan (husband
of nanad of the deceased) P.W.-13,
Dayaram
(Tehsildar)
who
conducted
Panchayatnama, P.W.-14, Rakesh Ram
(Naib Tehsildar) who recorded dying
declaration, P.W.-15, Dr. Sant Lal Kanaujia
(Doctor who conducted postmartem) P.W.-
16, Dr. Chandradev (Doctor who gave
fitness certificate) P.W.-17. Statement of
all the accused namely Smt. Bela Devi,
Bhuvneshwar Lal Chauhan, Parmeshwar
Lal Chauhan and Rameshwar Lal Chauhan
was recorded under Section 313 Cr.P.C.

6. The prosecution produced written
complaint Ex.Ka-1, chik F.I.R Ex.Ka-11,
Police
reports
Ex.Ka-2,
memo
of
possession of burnt saree and other goods
by Police Ex.Ka-3, letter sent along with
the dead body Ex.Ka-4, letter to Chauki Incharge Medical College Gulriha Ex.Ka-5,
photonash Ex.Ka-6, letter to the Chief
Medical Officer Ex.Ka-7, dying declaration
of deceased-Pooja Ex.Ka-8, post martem
report Ex.Ka-9, charge-sheet Ex.Ka-10,
General diary Ex.Ka-12, spot inspection
report Ex.Ka-13, letter to Police control
Ex.Ka-14, letter to Station House Officer,
P.S. Gulriha, Ex.Ka-15, Nakal report
Ex.Ka-16, report of medical college Ex.Ka17, Nakal Report Ex.Ka-18 as documentary
evidence during the trial.

7. After considering the entire
evidence, the learned Sessions Judge
acquitted Smt. Bela Devi, Bhuvneshwar
Lal Chauhan, Parmeshwar Lal Chauhan
under Section 498A, 304B, 323, 302 IPC
and
3⁄4
Dowry
Prohibition Act
and
convicted
Rameshwar
Lal
Chauhan
(appellant-accused) under Section 302 IPC
and sentenced the appellant with life
imprisonment and fine of Rs.25,000/- and
in case of default, one year rigorous
imprisonment.

8. Heard learned Counsel for the
accused-appellant, learned AGA for the
State and perused the material on record.

9. Learned Counsel for the accusedappellant vehemently assailed the order of
conviction
and
made
following
submissions that :-

(i)
Accused-appellant
is
innocent and has not committed the
alleged offence.

(ii) The order of conviction is
based on conjecture and surmises.

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

(iv) The trial court has held that
the accused-appellant was guilty only on
the basis of the dying declaration Ex.Ka-8.
374 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) The trial court totally earred
in relying upon the dying declaration
Ex.Ka-8 which does not inspire confidence
at all.

(vi) The certificate of fitness of
deceased as to give dying declaration given
by the Dr. Chandra Dev, Emergency
Medical Officer, P.W.-17 was not in a
proper format and had been transcribed on
the left side of the page on which dying
declaration was recorded, Ex.Ka-8. From
the evidence of P.W.17 Dr. Chandra Dev, it
cannot be said that the deceased was in a fit
mental condition to give the dying
declaration.

(vii) As per the post-mortem
report Ex.Ka-9, deceased Pooja sustained
100% burn injuries and except for both sole
(pair ka talwa) and hair (head) every part of
the body was burnt and the deceased-Pooja
was not in fit condition to give the dying
declaration.

(viii) Evidence of P.W.-15, Naib
Tehsildar who has recorded the dying
declaration and P.W.-17, Dr. Chandradev,
Emergency Medical Officer who gave the
fitness
certificate
does
not
inspire
confidence. The evidence of P.W.-15 and
P.W.-17 creates a strong suspision about
the consciousness and mental fitness of the
deceased, while the statement was being
recorded.

(ix) Death of the deceased was
because of an accident and was not a
homicide.

(x) And lastly, it was submitted by
the learned Counsel for the appellant that the
appellant was not confronted with the dying
declaration at the time of recording his
statement under Section 313 Cr.P.C. and,
therefore, same cannot be relied upon and has
to be excluded from the evidence.

10. Per contra, learned AGA for the
State refuted the submissions made by the
learned Counsel for the appellant and made
following submissions that :-

(i) Trial 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
a dying declaration without there being any
other corroborative evidence.

(iii)
No
format
has
been
prescribed
for
recording
the
dying
declaration.

(iv) From the evidence of P.W.-
15 and P.W.-17, it is established that the
deceased was physically and mentally fit
while recording the dying declaration by
P.W.-15.

(v) P.W.-15 and P.W.-17 are
independent witnesses and there is no
suggestion by the defence as to why the
P.W.-15 and P.W.-17 would give false
evidence against the accused-appellant.

(vi) Not putting a question to the
accused with regard to Ex.Ka.-8 i.e. the
dying declaration 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 him.

(vii) And it was lastly submitted
that the trial court rightly passed the
judgment convicting the accused-appellant
after considering the entire evidence and
the appeal had no merits and was liable to
be dismissed.

11. With the help of both Counsel,
learned Counsel for the appellant and
learned AGA for the State, we have
perused the record of the case from which,
it is clear that P.W.-1 Sarju Chauhan who
was father of the deceased-Pooja Chauhan
and he had not supported the prosecution
version and was declared hostile by the
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
375
prosecution. It was stated by the P.W.-1,
Sarju Chauhan in his examination-in-chief
that his daughter, Pooja while heating the
milk for her daughter met with an accident
in which she was badly burnt at about 6:307:00 a.m. on 12.6.2014. At the time of
incident,
Rameshwar
Lal
Chauhan,
accused-appellant
(husband
of
the
deceased), Bela Devi (mother-in-law),
Bhuvneshwar Lal Chauhan, Kamleshwar
Lal Chauhan (brother-in-laws), Anuradha
(Nanad) all were at Kamla Marriage House.
It was further stated by P.W.-1 that
somebody
informed
him
at
Kamla
Marriage House that his daughter had been
burnt at about 6:30-7:00 a.m. and on
receiving the aforesaid information all of
them reached the house and found that
Pooja was badly burnt. P.W.-1 along with
husband of the deceased (appellant) and
other relatives rushed Pooja to the Sadar
Hospital, Gorakhpur from where, she was
referred to the Medical College and on the
very same day at about 8:00-9:00 p.m.
Pooja succumbed to her injuries at the
Medical College, Gorakhpur. In his cross
examination, P.W.-1 denied the prosecution
story and stated that his daughter died due
to an accident. It was stated by P.W.-1 that
in the Medical College, neither the Doctor
nor the Magistrate had taken the statement
of his daughter, the allegation of dowry
made in the First Information Report was
also denied by the P.W.-1.

12. P.W.-2 namely Sudhir Chauhan,
who was the brother of the deceased-Pooja
also did not support the prosecution version
and in his cross examination, stated that
Pooja had died because of burning which was
accidently caused while heating the milk for
her daughter at about 6:30-7:00 a.m. on
12.6.2014. He stated that she died at about
8:00-9:00 p.m. on the same day in the
Medical College. P.W.-2 was also declared
hostile by the prosecution and in cross
examination by the Additional Government
Advocate, P.W.-2 denied the suggestion that
there was settlement outside the Court with
the accused and, therefore, P.W.-2 was not
giving the correct statement.

13. P.W.-3, Pushpa Devi who was
mother of the deceased-Pooja also did not
support the prosecution version and stated in
her examination-in-chief that Pooja died
because of accidental fire while heating the
milk for her daughter. P.W.-3 was also
declared hostile by the prosecution and in her
cross examination, P.W.-3 stated that after
getting the information, she went to the
Medical College, Gorakhpur where her
daughter was unconscious and she remained
with her unconscious daughter till she was
alive.

14. P.W.-4, Rajan Mishra, P.W.5,
Guddu Chauhan, P.W.-6 Ramrati Devi,
P.W.-12, Subhash Chandra Chauhan, P.W.-
13, Nitish Kumar Chauhan who were
independent witnesses also turned hostile and
not supported the prosecution case. P.W.-7,
Ashok Kumar Chauhan, P.W.-8 Ram Ashish,
P.W.-11 Radhey Shyam Gupta who were the
witnesses of Panchayatnama were also
declared hostile by the prosecution. P.W.-9,
Mohd. Zeeshan, P.W.-10, Naushad who were
witnesses of recovery were also declared
hostile by the prosecution.

15. P.W-14, Daya Ram retired Naib
Tehsildar who was the witness of the
Panchayatnama proved the Panchayatnama
and
stated
that
Panchayatnama
was
conducted
under
his
instructions
on
13.6.2014.

16. P.W.-15 Rakesh Ram, who was
Naib Tehsildar at the time of incident and
recorded the dying declaration of the
376 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased Pooja on 12.6.2014 proved the
dying declaration.

17. P.W.-16 Dr. Sant Lal Kanaujia
who conducted the post-mortem of the
deceased Pooja on 13.6.2014 proved the
post-mortem.

18. P.W.-17, Dr. Chandra Dev,
Emergency
Medical
Officer
Nehru
Hospital
B.R.D
Medical
College,
Gorakhpur
stated
that
he
gave
the
certificate of fitness at the time when dying
declaration was being recorded by the
Magistrate and proved the same.

19. From the oral evidence as referred
above, we find that all the witnesses of fact
had not supported the prosecution version
and
were
declared
hostile
by
the
prosecution. The learned trial court relying
upon the dying declaration Ex.Ka-8 of the
deceased-Pooja convicted the accusedappellant under Section 302 IPC but as all
the
witnesses
were
declared
hostile
acquitted the other accused for charges
under Section 304B, 498A IPC and Section
3⁄4 Dowry Prohibition Act.

20. 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 trial court
ought not have convicted the accusedappellant 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.

21. 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
result 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.

22. There is a historical and a literary
basis for recognition of dying declaration
as an exception to the Hearsay Rule. Some
authorities
suggest
the
rule
is
of
Shakespearian origin. In "The Life and
Death of King John", Shakespeare has Lord
Melun utter what a "hideous death within
my view, retaining but a quantity of life,
which bleeds away,..lost the use of all
deceit" and asked,"Why should I then be
false, since it is true that I must die here
and
live
hence
by
truth?"
William
Shakespeare, The Life and Death of King
John Act. 5, Sc.2, lines 22-29.

23. It is not difficult to appreciate why
dying declarations are admitted in evidence
at a trial for murder, as a striking exception
to the general rule against hearsay. For
example, any sanction of the oath in the
case of a living witness is a thought to be
balanced at least by the final conscience of
the dying man. Nobody, it has been said,
would wish to die with a lie on his lips. A
dying declaration has got sanctity and a
person giving the dying declaration will be
the last person to give an untruth as he
stands before his creator.
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
377

24. There is a legal maxim "Nemo
Moriturous Praesumitur Mentire" meaning,
that a man will not meet his maker with a
lie in his mouth. Woodroffe and Amir Ali,
in their treatise on Evidence Act state :

"when a man is dying, the grave
position in which he is placed is held by
law to be a sufficient ground for his
veracity and therefore the tests of oath and
cross- examination are dispensed with."

25. 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.

26. Undeniably, the learned trial
court has convicted the accused-appellant
only on the basis of the dying declaration
as the other witnesses of fact had not
supported the prosecution version and
had turned hostile. No doubt it is settled
law that if a dying declaration inspires
full confidence it can form the basis for
conviction. There is neither rule of law
nor of prudence that dying declaration
cannot
be
relied
upon
without
corroboration. Needles to say that if the
Court
is
satisfied
that
the
dying
declaration is true and voluntary, it can
base
conviction
on
it
without
corroboration. Before going to award
conviction against the accused, the trial
court must be mindful of the fact that
there should be no room to suspect the
evidence led by the prosecution on which
conviction is being awarded. As a general
rule, while appreciating evidence in a
criminal case, the Court should bear in
mind that it is not the quantity but the
quality of evidence which is material. It
is the duty of the Court to consider the
trustworthiness of the dying declaration,
and whether the same inspires full
confidence so as to accept rely act upon
before recording conviction.

27. In Khushal Rao Vs. State of
Bombay reported in AIR 1958 SC 22, a
three Judges Bench of Supreme Court,
after discussing the law in detail,
observed as follows :-

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

(17) Hence, in order to pass the
test of reliability, a dying declaration has
to be subjected to a very close scrutiny,
keeping in view the fact that the statement
has been made in the absence of the
accused who had no opportunity of testing
the veracity of the statement by crossexamination. But once the court has come
to the conclusion that the dying declaration
was the truthful version as to the
circumstances of the death and the
assailants of the victim, there is no question
of further corroboration. If, on the other
hand, the Court, after examining the dying
declaration in Judgment 12 apeal71.19 .odt
all its aspects, and testing its veracity, has
come to the conclusion that it is not
reliable by itself, and that it suffers from an
infirmity, then, without corroboration it
cannot form the basis of a conviction. Thus,
the necessity for corroboration arises not
from any inherent weakness of a dying
declaration as a piece of evidence, as held
in some of the reported cases, but from the
fact that the Court, in a given case, has
come to the conclusion that that particular
dying declaration was not free from the
infirmities, referred to above or from such
other infirmities as may be disclosed in
evidence in that case."

28. On the same line we find it
relevant to note following observations of
Hon'ble Supreme Court in case of Paniben
Vs. State of Gujrat reported in (1992) 2
SCC 747 (Para 18 at page 480 and 481).

Though a dying declaration is
entitled to great weight, it is worthwhile to
note that the accused has no power of
cross-examination.
Such
a
power
is
essential for eliciting the truth as an
obligation of oath could be. 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 either 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. This Court has laid down
in
several
judgments
the
principles
governing dying declaration, which could
be summed up as under:

(i) There is neither rule of law
nor of prudence that dying declaration
cannot
be
acted
upon
without
corroboration.(Mannu Raja v. State of
M.P., (1976) 2 SCR 764).

(ii) If the Court is satisfied that
the dying declaration is true and voluntary
it can base conviction on it, without
corroboration. ( State of U.P. v. Ram Sagar
Yadav, AIR 1985 SC 416; Ramavati Devi v.
State of Bihar, AIR 1983 SC 164).
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
379

(iii) This Court has to scrutinise
the dying declaration carefully and must
ensure that the declaration is not the result
of tutoring, prompting or imagination. The
deceased had opportunity to observe and
identify the assailants and was in a fit state
to make the declaration. (K. Ramachandra
Reddy v. Public Prosecutor, AIR 1976 SC
1994).

(iv) Where dying declaration is
suspicious it should not be acted upon
without corroborative evidence. (Rasheed
Beg v. State of Madhya Pradesh, (1974) 4
SCC 264).

(v) Where the deceased was
unconscious and could never make any
dying declaration the evidence with regard
to it is to be rejected. (Kake Singh v. State
of M. P., AIR 1982 SC 1021)

(vi) A dying declaration which
suffers from infirmity cannot form the basis
of conviction. (Ram Manorath v. State of
U.P., 1981 SCC (Crl.) 581).

(vii) Merely because a dying
declaration does not contain the details as
to the occurrence, it is not to be rejected.
(State of Maharashtra v. Krishnamurthi
Laxmipati Naidu, AIR 1981 SC 617).

(viii) Equally, merely because it
is a brief statement, it is not be discarded.
On the contrary, the shortness of the
statement itself guarantees truth. (Surajdeo
Oza v. State of Bihar, AIR 1979 SC 1505)

(ix) Normally the court in order
to satisfy whether deceased was in a fit
mental condition to make the dying
declaration look up to the medical opinion.
But where the eye witness has said that the
deceased was in a fit and conscious state to
make this dying declaration, the medical
opinion cannot prevail. (Nanahau Ram and
another v. State of M.P., AIR 1988 SC 912)

(x) Where the prosecution version
differs from the version as given in the
dying declaration, the said declaration
cannot be acted upon. (State U.P. v. Madan
Mohan, AIR 1989 SC 1519)

29. It would be appropriate here to
remind ourselves that generally, there are
two issues with respect to a dying
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 record 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.

30. 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.
380 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In case of Nallapati Sivaiah Vs.
Sub-Divisional Officer, Guntur, Andhra
Pradesh reported in (2007) 15 Supreme
Court Cases 465 ( in paragraph no.26 of
judgment at Page 475 SCC), Supreme
Court observed as follows:-

"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 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 condition-mentally and
physically- to make such statement."

32. The above noted principles have
been recently reiterated by the Apex Court
in the case of Jagbir Singh Vs. State (NCT
of Delhi) reported in (2019) 8 SCC 779.

33. 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.

34. Learned Counsel for the appellant
drew our attention to the dying declaration
Ex.Ka-8 and submitted that from the
perusal of the dying declaration Ex.Ka-8, it
is clear that the dying declaration was
recorded at about 10:20 a.m. on 12.6.2014.
It has been contended by learned Counsel
for the appellant that Dr. Chandra Dev,
Emergency
Medical
Officer,
Nehru
Hospital
B.R.D.
Medical
College,
Gorakhpur, P.W.-17 has transcribed on the
left margin of the page on which dying
declaration was recorded that patient was
mentally fit for giving the dying declaration
on 12.6.2014 before, during and after 10:15
a.m.-10:30 a.m. It has been contended by
learned Counsel for the appellant that by
one stroke of the pen the Doctor has given
a certificate of fitness and that too on the
left margin of page on which the dying
declaration was recorded.

35. It was also contended by learned
Counsel for the appellant that in his
statement Dr. Chandra Dev, P.W.17 stated
that
Paper
No.39-Ka,
memo
dated
12.6.2014 was prepared by the pharmacists
and after being prepared, P.W.-17 signed
the same and the aforesaid memo was sent
to the Magistrate on which the Magistrate
recorded the dying declaration. P.W.17
after looking at the Paper No.39-Ka, memo
stated that it has been transcribed on the
memo that a lady who was seriously burned
was brought on 12.6.2014 at about 10:15
6 All. Rameshwar Lal Chauhan Vs. State of U.P.
381
a.m. and her dying declaration was
necessary to be recorded. It had also been
stated by P.W-17 that the time 10:15 a.m.
mentioned
in
the
memo
had
been
transcribed on the basis of bedhead ticket.

36. Assailing the statement of P.W.-
17 learned Counsel for the appellant
contended that as per the evidence of P.W.-
17 deceased was admitted in the medical
college on 12.6.2014 at about 10:15 a.m.
whereas the dying declaration was recorded
at 10:20 a.m. on 12.6.2014 i.e within five
minutes after the admission of deceased in
the hospital. From the evidence of P.W.-17,
Dr. Chandra Dev and P.W.-15, Rakesh
Ram Sub-Registrar who had recorded the
dying declaration, it is clear the memo of
request Paper no.39-Ka was prepared by
the Doctor after the admission of the
deceased in the hospital at 10:15 a.m. and
the aforesaid memo was served upon the
Magistrate by the Police at his residence
and only after the service of memo Paper
No.13-Ga the P.W.-15 came to the hospital
and recorded the dying declaration. It has
been further contended by learned Counsel
for the appellant that it has come in the
statement of P.W.-17 that he had no
knowledge of the fact as to which Doctor
admitted the deceased in the hospital and
further from the statement of P.W.-17, it is
also clear that P.W.-17 never treated the
deceased but had given a certificate of
fitness to the effect that the deceased was
mentally fit for giving the dying declaration
on 12.6.2014 before, during and after 10:15
a.m. -10:30 a.m. It has also been contended
that the entire exercise of recording, the
dying declaration was completed within a
short period 15 minutes i.e. from 10:15
a.m. to 10:30 a.m.

37. It was further contended by
learned Counsel for the appellant that
P.W.-17 in his cross-examination stated
that he had written on the left margin of
Ex.Ka-8, after the same being prepared by
the Magistrate, just as a formality that the
patient is mentally fit for giving the dying
declaration on 12.6.2014 before during and
after 10:15 a.m.-10:30 a.m. Learned
Counsel for the appellant further contended
that P.W.-17 has not stated anything in his
evidence as to how he came to the
conclusion that the deceased was in a fit
condition
for
recording
the
dying
declaration. Referring to the statement of
P.W.-15, Rakesh Ram, Sub-Registrar who
recorded the dying declaration, learned
Counsel for the appellant contended that
P.W.-15 in his statement has stated that on
12.6.2014, he had not received any written
intimation
for
recording
the
dying
declaration and he was informed by the
Police Control Room through telephone
and thereafter a memo was also sent by the
Police Control Room that one lady is
admitted in B.R.D. Medical College and
her dying declaration was to be recorded. It
was further contended by learned Counsel
for the appellant that in his statement P.W.-
15 admitted that this information came to
the P.W.-15 at about 8:00 a.m.