# Ramjan Shah & Ors v. State of U.P

- **Citation:** (2020) 8 ILRA 572
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Criminal Appeal No. 2907 of 2013
- **Bench:** Bala Krishna Narayana, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramjan-shah-ors-v-state-of-u-p-46063
- **Pages:** 20

## Headnote

Evidence Law- Indian Evidence Act,
1872- Section 32- Dying Declaration- No
requirement of the person (deceased) to
be admitted in a hospital -For the
purposes
of
recording
of
dying
declaration,
it
is
not
a
condition
precedent that the patient must be
admitted in the hospital. Nor any
particular mode is prescribed to record
the dying declaration. In an emergent
condition
the
required
bookish
formalities may be dispensed with and
would not reflect upon the authenticity
and
genuineness
of
the
dying
declaration.
Mere
absence
of
any
documentary
proof
regarding
her
admission in the hospital would not
negate the authenticity of the dying
declaration.
For the purpose of recording a dying
declaration it is not necessary that the person
( Deceased) should be admitted in a hospital.
8 All. Ramjan Shah & Ors. Vs. State of U.P.
573
Non availability of hospital admission/ bed
head ticket will not vitiate the dying
declaration.

Evidence Law- Indian Evidence Act,
1872- Section 32- Dying Declaration -
No further corroboration required if the Court
is satisfied with the genuineness of the Dying
Declaration-
The
doctrine
of
dying
declaration is enshrined in the legal
maxim "Nemo moriturus praesumitur
mentire" which means a man will not
meet his maker with a lie in his mouth.
If the court is satisfied with the dying
declaration and made voluntarily by the
deceased, conviction can be made solely
on it, without any further corroboration.
The
doctor,
PW-7,
categorically
observed while certifying the mental
orientation
of
the
patient
(now
deceased) that she was focused, fully
conscious and in a fit state of mind to
give her statement and for recording the
impugned dying declaration, half an
hour time was consumed and during the
relevant
time
she
remained
well
oriented. Thus from the aforesaid, the
authenticity and veracity of the dying
declaration is well established and
sufficient recording a conviction order.

If the Court is satisfied that the dying
declaration is voluntary and has been made in
a fit mental state, then without the need for
any further corroboration, the same would be
sufficient for recording the conviction of the
accused.

Criminal
law
-
Code
of
Criminal
Procedure, 1973- Section 154, 155(1)-
Defective Investigation- The defect in
the investigation by itself cannot be
ground of acquittal, the investigation is
not a solitary area for the judicial
scrutiny in the criminal trial, where
there has been negligence on the part of
the
investigating
agency
on
the
omission etc. which has resulted in a
defective investigation- There is an
obligation on the part of the Court to
examine the evidence de-hors of such
lapses carefully and find out whether
the said evidence is reliable or not and
to what extent, it is reliable and
whether such lapses affect the objects
of finding out the truth. In a case of
defective investigation, the Court has
binding duty to be circuminspect in
evaluating the evidence but it would no

## Text

_Characters 0–39,913 of 64,901. This is a partial read: ask again with offset=39913 for what follows._

572 INDIAN LAW REPORTS ALLAHABAD SERIES
persons. He used this time in meeting and
have active consultation to implicate the
accused-appellants with whom they have
inimical in terms. Else, there is no other
reason for this delay, as they themselves
admit that they had gone to C.H.C. Reoti,
via police station and had an opportunity
to
lodge
FORMAL
FIR
within
reasonable time after the incident.

There is marked deviation and
incompatibility in the testimonies of both
the prosecution witnesses, though they
claim to be an eye-witness to the incident.
Not only this, it is impossible to draw any
parallel between the testimonies of these
prosecution witnesses qua the depositions
made by the doctors as PW-3, PW-5 and
PW-8. Every witness either of fact or formal
going its own way and do not generate
requisite
confidence
in
the
Court.
Prosecution
story
and
its
supporting
testimonies are going to haywire leading to
utter stage of confusion.

41.
For
the
reasons
narrated
hereinabove and critical analysis of them,
we are of the considered opinion that
recorded conviction of appellants and
sentence of life imprisonment awarded to
them by learned III-Additional Sessions
Judge, Ballia while passing impugned
judgement and order dated 25.01.2011 in
Session Trial No.42 of 2007 In re : State
of U.P. vs. Chandresh Yadav and 7
others, u/s 147, 148, 302 I.P.C. read with
Sections 149, 504, 506 I.P.C., Police
Station-Reoti, District-Ballia, is well
short of required reasons and standard of
proof and thus is liable to be set aside.

42.
The
appellants
who
are
languishing in jail since 25.01.2011 shall be
released forthwith, if not wanted any other
case.

43. All the appeals succeed and are
allowed.
----------
(2020)08ILR A572
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Appeal No. 2907 of 2013

Ramjan Shah & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Hari Om Khare, Sri Akash Khare, Sri
Abhay Raj Singh, Sri Jitendra Singh, Sri
Mohd. Naseer Ahmad, Sri Nazrul Islam
Jafri, Sri R.N. Shukla

Counsel for the Opposite Party:
A.G.A.

Evidence Law- Indian Evidence Act,
1872- Section 32- Dying Declaration- No
requirement of the person (deceased) to
be admitted in a hospital -For the
purposes
of
recording
of
dying
declaration,
it
is
not
a
condition
precedent that the patient must be
admitted in the hospital. Nor any
particular mode is prescribed to record
the dying declaration. In an emergent
condition
the
required
bookish
formalities may be dispensed with and
would not reflect upon the authenticity
and
genuineness
of
the
dying
declaration.
Mere
absence
of
any
documentary
proof
regarding
her
admission in the hospital would not
negate the authenticity of the dying
declaration.
For the purpose of recording a dying
declaration it is not necessary that the person
( Deceased) should be admitted in a hospital.
8 All. Ramjan Shah & Ors. Vs. State of U.P.
573
Non availability of hospital admission/ bed
head ticket will not vitiate the dying
declaration.

Evidence Law- Indian Evidence Act,
1872- Section 32- Dying Declaration -
No further corroboration required if the Court
is satisfied with the genuineness of the Dying
Declaration-
The
doctrine
of
dying
declaration is enshrined in the legal
maxim "Nemo moriturus praesumitur
mentire" which means a man will not
meet his maker with a lie in his mouth.
If the court is satisfied with the dying
declaration and made voluntarily by the
deceased, conviction can be made solely
on it, without any further corroboration.
The
doctor,
PW-7,
categorically
observed while certifying the mental
orientation
of
the
patient
(now
deceased) that she was focused, fully
conscious and in a fit state of mind to
give her statement and for recording the
impugned dying declaration, half an
hour time was consumed and during the
relevant
time
she
remained
well
oriented. Thus from the aforesaid, the
authenticity and veracity of the dying
declaration is well established and
sufficient recording a conviction order.

If the Court is satisfied that the dying
declaration is voluntary and has been made in
a fit mental state, then without the need for
any further corroboration, the same would be
sufficient for recording the conviction of the
accused.

Criminal
law
-
Code
of
Criminal
Procedure, 1973- Section 154, 155(1)-
Defective Investigation- The defect in
the investigation by itself cannot be
ground of acquittal, the investigation is
not a solitary area for the judicial
scrutiny in the criminal trial, where
there has been negligence on the part of
the
investigating
agency
on
the
omission etc. which has resulted in a
defective investigation- There is an
obligation on the part of the Court to
examine the evidence de-hors of such
lapses carefully and find out whether
the said evidence is reliable or not and
to what extent, it is reliable and
whether such lapses affect the objects
of finding out the truth. In a case of
defective investigation, the Court has
binding duty to be circuminspect in
evaluating the evidence but it would not
be right in acquitting the accused
persons solely on the ground of defect,
to do so, would tantamount playing into
the hands of the Investigating Officer, if
the investigation is decidedly defective.
The accused cannot get any benefit out of a
defective investigation and therefore they
cannot be aquitted solely on the grounds of
latches and lapses of the investigating officer.

Criminal law - Indian Penal Code, 1860-
Section 304 Part II - Absence of
premeditation- Death after twenty four
days-
No
incriminating
material
collected- Lack of corroborative medical
evidence- Evident that there is marked
shift
in
the
prosecution
case
as
mentioned in the FIR and in her dying
declaration. There is no evidence that
there was a pre-meditation on the part
of the appellants though she was
dragged to kitchen of the nuptial house
and
set
on
fire
by
the
joint
misadventure of the accused persons. It
is a concrete case that cane of kerosene
oil was poured upon and she was set
ablaze but aghastly no incriminating
material was collected by the police.
There was odor of kerosene oil over her
body. The post mortem report too is of
no help indicating the seriousness and
the gravity of the injuries sustained by
her, she remained alive for almost 24
days and all of sudden she died - Fit
case for modifying the sentence and the
appellants ought to have been convicted
under Section 304 Part II of the IPC
instead of Section 302/34 IPC.

Absence of premeditation on part of the
accused and lack of incriminating material,
absence of corroboration from the medical
evidence and death after twenty four days of
the occurrence, which may be due to other
factors, would bring the present case within
the ambit of Section 304 Part II of the IPC
instead of Section 302 IPC.
574 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal partly allowed. (E-3)

Case Law relied upon/ Discussed:-

1. Jagbir Singh Vs St. (NCT of Delhi) in
Criminal Appeal No. 967 of 2015 decided on
4th September 2019

2. Sham Shankar Kankaria Vs St. of Maha.
(2006) 13 SCC 165

3. Panneerselvem Vs St. of T.N, (2008) 17
SCC 1

4. Gulzari Lal Vs St. of Har. (2016) 2 SCC
Crl.325

5. Ramesh Kumar Vs St. of Bih. & ors. AIR
1993 SC 2317

6. Public Prosecutor High Court Vs Shaik
Meera Valli , 1993 CrLJ 3320

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. While going through the
arguments of the learned counsel for the
rival parties and scanning the entire
material of the instant case, this Court
felt that every dark and dreaded night has
tryst to see a golden morning one day and
present case is incandescenting this Court
to that ultimate path.

2. Heard Sri N.I.Jafri, learned
senior counsel assisted by Sri Naseer
Ahmad,
learned
counsel
for
the
appellants, Sri H.M.B.Sinha, learned
AGA for the State and perused the
available paper book on record of the
appeal.

3. The instant appeal under Section
374(2) Cr.P.C. was preferred by three
appellants,
namely,
appellant
no.1
Ramjan Shah son of Ghasitay Shah,
appellant no.2 Km. Shabbo, daughter of
Ghasitay Shah and Mrs. Rashida Begam
wife of Ahmad, daughter of Ghasitay
Shah, who are facing incarceration,
pursuant to the judgment and order of
conviction dated 06.06.2013 by IstAdditional Sessions Judge, Fatehpur
while deciding the Sessions Trial No.
398 of 2009 in-re Ramjan Shah and
others vs. State of U.P. Fact of the matter
is that appellant no.1 Ramjan Shah
(husband) is behind the bars, since very
inception of the case i.e. 26.05.2009,
whereas rest of the accused, namely, Km.
Shabbo and Mrs. Rashida Begum were
on bail during trial but are in jail from the
date of judgment i.e. 06.06.2013.

4. It is also borne out from the
judgment that Ghasitay Shah, a charge
sheeted accused died on 22.04.2010 at
pre-trial stage and the police in its report
has confirmed this fact, accordingly, the
trial against Ghasitay Shah stood abated,
whereas, another accused Jamile Shah
was acquitted from the charges under
sections 498A, 304B along with the
alternative charge under Sections 302
IPC and 3/4 of the Dowry Prohibition
Act. Rest of the convicted accused
persons have preferred the present
appeal.

5. After recording the conviction
under Sections 302/34 and 498A IPC,
learned Sessions Judge has convicted all
the three
appellants named above,
sentencing all of them for imprisonment
for life and a fine of Rs. 3000/- each and
in case of default of payment of fine, an
year's additional rigorious imprisonment
to the defaulter was also awarded.
Besides
above,
the
appellant
no.1
Ramjan
Shah
(husband)
was
also
convicted under Section 498A IPC and
was saddled with an imprisonment for a
period
of
three
years
rigorous
8 All. Ramjan Shah & Ors. Vs. State of U.P.
575
imprisonment and a fine of Rs. 1500/-
and in case of default of payment of fine
six
months
additional
rigorous
imprisonment was awarded to him.
However, all the sentence would run
concurrently. Aggrieved and dissatisfied
by the aforesaid judgment and order, the
present appeal has been preferred before
us.

6. Before coming to the merit of the
case, it is imperative to have an eagle's
eye view to the prosecution case which
was unfolded in the FIR :-

7. The genesis of the case, ignites
after giving a written report (Ex.Ka-1) by
Sartaj Shah (PW-1) father of deceased,
addressed to Station House Officer, P.S.
Chandpur, Fatehpur dated 26.05.2009,
which was eventually registered as case
crime no. 171 of 2009, under Section
498A, 307, 323, 504 IPC and Section 3/4
Dowry Prohibition Act for the incident
alleged to have been taken place a day
prior i.e. 25.05.2009 at deceased's nuptial
house at village Awazipur, District
Fatehpur. PW-1 Sartaj Shah has lodged
the FIR against as many as five persons,
namely, (i) Ramjan Shah (husband), s/o
Ghasitay Shah, (ii)
Ghasitay Shah
(father-in-law), s/o Gani Shah, (iii) Smt.
Rashida Begam (elder married sister-inlaw "Nanad"), d/o Ghasitay Shah, (iv)
Km. Shabbo (younger unmarried sisterin-law "Nanad"), d/o Ghasitay Shah and
(v) Jamile Shah, s/o of Gani Shah. In a
nutshell, the prosecution story reveals
that Sartaj Shah, PW-1 resident of village
Piprodar, P.S. Pailani, District Banda
solemnized the marriage of his daughter
Mst. Ajimunnisha (22 years) (now
deceased) with Ramjan Shah-appellant
no.1, s/o Ghasitay Shah village Awajipur,
P.S. Chandpur, Fatehpur according to
Muslim rites and rituals. After the
marriage, the daughter of PW-1 joined
the in-laws' place at Fatehpur. It is borne
out from the FIR that within no time of
her marriage, Km. Shabbo, her sister-inlaw was set to marry, wherein the
valuable items, utensils, ornaments of the
newly
wed
Mst.
Ajimunnish
was
proposed to be siphoned by her in-laws
to her sister-in-law (Km. Shabbo). When
the
deceased
Ajimunnisha
seriously
objected to this, the infuriated parents-inlaw
and
her
husband
started
roughhousing
her
by
misbehaving,
torturing and harassing and eventually,
they demanded Rs. 30,000/- as additional
dowry for establishing the business of her
husband, else she was threatened to be
ousted from her nuptial home. Their
constant inhuman behaviour qua her,
virtually uprooted her from nuptial house
within a short span of time. After coming
from her in-laws place Ajimunnisha,
shared the woos and sorrows of her
maltreatment committed by the inmates
of her nuptial house with her parent. In
the month of June 2009 on account of
intervention of certain elders/friends of
the
family,
better
sense
prevailed
between the parties and her in-laws
agreed to resile from their earlier
decision and accepted her back. But
ironically, again she was roughhoused by
her husband and in-laws. There was, in
fact, no change in their behaviour and
temperament qua her and eventually on
25.05.2009 around 12.00 in noon, the
informant received a phone call from one
of
the
acquaintances,
resident
of
Awazipur, District Fatehpur informing
that the in-laws have set her daughter
Mst. Ajimunnish, ablaze after pouring
kerosene oil over her and now she is in
precarious condition. after hearing this
unfortunate
saddening
news,
the
576 INDIAN LAW REPORTS ALLAHABAD SERIES
informant along with his wife Mst.
Shamshun
Nisha
(PW-2)
on
the
motorcycle of one Mazeed Bhai rushed
to village Awazipur, where they saw her
daughter in a worsened semi-unconscious
condition. The informant with the help
and assistance of neighbourhood, the
patient was taken to the District Hospital,
Fatehpur, from where she was referred to
Kanpur and therein she underwent
medical treatment. The statement of the
informant's daughter has already been
recorded and his wife was taking care of
her at the Kanpur hospital at the relevant
point of time. The scribe of this written
report was one Raja Miyan.

8. From the text of the FIR, it is
unambiguously and explicitly clear that
she was soft target in the hands of her
husband and other in-laws just to satisfy
their lust and greed in the shape of
additional dowry. The bunch of merciless
husband & in-laws have committed this
heinous offence by killing her after
pouring kerosene oil and setting her
ablaze within short span of time of her
marriage. As mentioned in the FIR,
without wasting time at Fatehpur father
Sartaj Shah PW-1 along with his wife
PW-2 and injured daughter has shifted to
Kanpur and got her admitted in some
private nursing home. Though there is no
documentary proof or bed head ticket of
the said nursing home is available on
record. Thereafter getting her admitted
and medically treated in Kanpur for some
time they on their own wisdom shifted
the patient/ injured daughter to District
Hospital, Banda. During the medical
treatment at Banda she eventually took
her last breath on 18.06.2009 at District
Hospital, Banda i.e. almost after 24 days
of the incident. Though no documentary
proof/
bed
head
ticket
regarding
admission of the patient at Banda District
Hospital
was
produced
by
the
prosecution. After her sad and untimely
demise, autopsy report was prepared on
19.06.2009 by Dr. Pranav Kumar, PW-4.
This is a long and short of prosecution
case as available on record.

9. The prosecution in order to
establish its case has produced as many
as nine prosecution witnesses, namely, :-

(i) PW-1- Sartaj Shah (fatherin-law), (ii) PW-2- Shamshun Nisha
(mother of the deceased), (iii) PW-3- Sri
J.P.Pandey,
Naib
Tehsildar,
Banda
(Officer before whom inquest was
prepared), (iv) PW-4- Dr. Pranav Kumar,
who has prepared post mortem report of
the deceased, (v) PW-5- CP 118 Babulal
Maurya, who prepared the chick report
no. 52 of 2009, case crime no. 171 of
2009 against Ramjan Shah and four
others,(vi) PW-6- Dinesh Kumar Mishra,
Naib Tehsildar, Sadar, Fatehpur, who has
recorded the dying declaration of the
deceased, (vii) PW-7- Dr. Vinod Kumar
Chauhan, E.M.O., District Hospital,
Fatehpur, who certified the mental and
physical
state
of
the
deceased
before/after
recording
her
dying
declaration, (viii) PW-8- S.I.- Ashok
Kumar Yadav, the first Investigating
Officer of the case and (ix) PW-9- Ms.
Neeta Chandra, second Investigating
Officer of the case, the then Circle
Officer, Jafarganj, Fatehpur, who took
the investigation of the case after
addition of Section 304B IPC from
earlier
Investigating
Officer
Ashok
Kumar Yadav.

10. It is worthwhile to mention here
that on the basis of written report, given
by Sartaj Shah dated 26.05.2009, Ex.Ka-
8 All. Ramjan Shah & Ors. Vs. State of U.P.
577
1, the FIR was lodged, which is exhibited
as
Ex.Ka-9.
Since
the
deceased
Ajimunnisha
was
in
a
precarious
condition and was taken to District
Hospital, Fatehpur, where her dying
declaration was recorded by Dinesh
Kumar
Mishra-PW-6
after
getting
medical clearance from Dr. Vinod Kumar
Chauhan, E.M.O., District Hospital,
Fatehpur, on the same day i.e. during the
midnight 25/26.05.2009, her statement
was recorded and proved by the PW-6,
which is exhibited as paper no. (Ex.Ka11) and lastly post mortem report was
prepared by Dr. Pranav Kumar PW-4 on
19.06.2009, which is exhibited as Ex.Ka8. During the course of investigation, the
police prepared a site plan with index,
which is exhibited as Ex.Ka-12 by the
Investigating Officer of the case, were
produced for the prosecution. In response
to the above mentioned prosecution,
witnesses and the documents in support
thereof, learned Sessions Judge during
course of the trial has summoned Ranjeet
Singh, CW-1 to depose the factum of
death of Ghasitey Shah, a charge sheeted
accused, who died before the trial.
Thereafter the statements under Section
313 Cr.P.C. were recorded of all the
accused persons with a view to provide
reasonable opportunity to defend them
was also offered to them; in which they
have categorically denied the prosecution
case and stated that they have falsely
been implicated. In addition to above, the
defence
has
also
produced
Mohd.
Sayeed-DW-1, the person (Maulavi),
who performed the Nikah, Ramjan ShahDW-2,Shabbir Husain-DW-3 and AneesDW-4 to establish their innocence and
pits and pores in the prosecution story.

11. After the demise of Ms.
Ajimunnisha,on 18.06.2009 at District
Hospital, Banda Section 304B was added
in place of Section 307 IPC. Since
Section 304B IPC and other allied
sections of the Indian Penal Code are
triable by the court of Sessions and the
concerned police submitted a report
under Section 173(2) Cr.P.C. and case
was committed to the court of Sessions
for trial.

12. Learned Sessions Judge, on
19.07.2011 framed charges against all the
four accused persons, namely, Ramjan
Shah, Ghasitay Shah, Km. Shabbo and
Smt. Rashida Begam. Initially charges
were framed on 01.05.2010 against all the
four
named
accused
persons
under
Sections, 498A, 304B IPC and Section 3/4
D.P. Act but none of the accused persons
has accepted their guilt and claimed trial.
During testimony of Sartaj Shah, PW-1,
learned Sessions Judge, Fatehpur in
exercise of his own legal wisdom has
framed
alternative
charge
against
aforementioned accused persons under
Section 302/34 IPC. The alternative
charges on 19.07.2011 were read and
explained to the accused persons which
they too have denied and claimed tried.

13. We have carefully heard the
submissions of the counsel representing
the rival parties and discreetly perused
the paper book along with the impugned
judgment of learned Sessions Judge.

14. Sri N.I.Jafri, Senior Advocate,
floated lengthy arguments while assailing
the
impugned
judgment
dated
06.06.2013. After having patient hearing,
his argument could be segregated into
two parts for the sake of brevity viz:-

(I)
The
alleged
dying
declaration of the deceased dated
578 INDIAN LAW REPORTS ALLAHABAD SERIES
26.05.2009 is a forged document which
has seen light of day much after the
incident on following score :-

(a) The deceased Ajimunnisha
though living in Awazipur, District
Fatehpur did not receive any burn injury
in her nuptial house but she received
injuries at her parents place at village
Piprodar, District Banda where she
breathed her last on 18.06.2009 at
District Hospital, Banda, during her
treatment. Thus, dying declaration cannot
not be recorded at District Hospital
Fatehpur, as alleged.

(b) The post mortem report
belies the dying declaration, wherein the
deceased states that she is a pregnant
about five months but no such indication
was found in her post mortem report,
therefore the veracity of the dying
declaration drowns in the ocean of doubt.

(c)
In
fact,
the
deceased
Ajimunnisha was never admitted in
District Hospital, Fatehpur on 25.05.2009
as
no
documentary
evidence
was
produced by the prosecution to unfold
their claim that she was ever admitted to
the District Hospital Fatehpur, therefore,
in the absence of any such document, the
theory of dying declaration at District
Hospital, Fatehpur goes haywire. It was
also contended by senior counsel that
prosecution has miserably failed to
produce and documentary proof/bed head
ticket of the deceased indicating the fact
that the deceased was initially admitted
to some private nursing home and
Kanpur and thereafter she was shifted to
District Hospital, Banda where she was
allegedly died. The vital unit of the chain
is completely missing, which is essential
to complete the entire chain.

15. Thus, the dying declaration
dated 26.05.2009 is a manufactured
document and was not recorded by PW6, as claimed to be prepared and proved
by him, after getting the medical
clearance
from
Dr.
Vinod
Kumar
Chauhan, PW-7.

16. The second limb of the
argument of Sri Jafri was mounted as
such:

(II) The investigation made by
the I.Os. is fallicious, porous to the core,
which shakes & belies the prosecution
case including dying declaration.

(a)
Though
the
dying
declaration was recorded on 26.05.2009
by Dinesh Kumar PW-6 but strangely it
was neither filed in the court concerned
immediately
after
recording
it
nor
communicated to the police. For the first
time Sartaj Shah the informant disclosed
the existence of dying declaration to the
second Investigating Officer of the case
namely; Ms. Neeta Chandra, PW-9 on
07.08.2009 i.e. about after 40 days of its
recording.

(b) As per the statements of
PW-1
and
PW-2
there
are
stark
contradictions in recording the very
presence of Ramjan Shah at the date and
time of place of incident.

(c) The time and place of
incident is doubtful on account of the fact
that the police has not recovered any
gallon/container of kerosene oil or
inflammable/burning material from the
kitchen.

17. Thus, theory of setting her
ablaze in kitchen, is reduced to shambles.
8 All. Ramjan Shah & Ors. Vs. State of U.P.
579

18. Let us examine and test the
submissions of Mr. Jafri, Senior learned
Advocate, one by one.

19. The first and foremost plank of
Sri N.I. Jafri, learned Senior counsel
assailing the legality and validity of
dying
declaration
dated
26.05.2009
(Ex.Ka-11), is that it is suspicious and
manipulated document, which was not
recorded by Sri Dinesh Kumar Misra,
PW-6 at District Hospital Fatehpur on the
date and time mentioned above.

20. To buttress his contention, it has
been argued that since the deceased was not
admitted in District Hospital, Fatehpur on
25.05.2009 or 26.05.2009 and, therefore,
there was no occasion or reason to record
her statement. Besides this, he further
submits that the alleged dying declaration
was neither filed in the court concerned
immediately after recording the same nor
communicated to the police and its
existence came into picture after forty days
of the alleged incident, when first informant
Sartaj Shah disclosed this fact to Ms. Neeta
Chandra-PW-9 on 07.08.2009. Learned
senior counsel has further assailed that after
getting orders from the Sub Divisional
Magistrate, Fatehpur Dinesh Kumar Misra,
Naib Tehsildar, Sadar Fatehpur rushed to
the site but said communication of the Sub
Divisional Magistrate concerned, was never
made part of the investigation, which turns
turtle the entire prosecution story and make
the same seriously doubtful.

21. These are the aforementioned
features by which Sri Jafri, Senior
Advocate
has
tried
to
shake
the
credibility of the said dying declaration.

22. From the testimony of PW1(Sartaj Shah), it is abundantly clear that
the marriage of the deceased with
Ramjan
Shah
was
solemnized
on
26.04.2006, wherein he has given dowry
and gift much above to his financial
capacity. Even then, dissatisfied with
given amount of dowry, jewellery etc.,
she was subject matter of constant torture
and harassment repeatedly by her in-laws
and the husband. She was virtually
uprooted, harassed and thrashed from her
marital place on account of demand of
additional dowry but somehow she
managed to reach safely to her parents
place. As per prevailing practice in the
society, the parent of the deceased
organized a "Panchayat" to pacify the
situation and in January 2009 she was
again sent by the parents to join the
company of her in-laws with the hope,
that a fresh rejoicing chapter in the life of
Mst. Ajimunnisha will open in the
company of her husband and in-laws at
her nuptial home. But such a dream and
hope got shattered and doomed, when the
poor young lady i.e. Mst. Ajimunnisha
came across the reality of her nupital
home and once again was bound to
experience that there was no change in
the attitude and the behavior of her
husband and in-laws qua her and she was
again subject matter of torture and
physical harassment.

23. On 25.05.2009, the fateful day,
PW-1
Sartaj
Shah
received
the
information from one Kamrunnisha that
her daughter was burnt to death after
pouring kerosene oil upon her. PW-1
along with his wife immediately rushed
to the place of the incident where they
realized that the condition of her
daughter was in precarious shape, as she
was restless and in fidgeted physical
condition. She narrated parent that
inmates of her nuptial home have
580 INDIAN LAW REPORTS ALLAHABAD SERIES
reduced her to that poor physical
condition. Her father Sartaj Shah with the
assistance of others took her to the
nearest District Hospital, Fatehpur. In
cross examination of PW-1, it has been
candidly
stated
that
after
reaching
District Hospital, Fatehpur, the attending
doctors saw the sinking condition of the
patient and advised to take the patient to
Kanpur for specialized and advanced
medical treatment. Though she was at
that relevant time, mentally alert and thus
her dying declaration was recorded by
PW-6, Dinesh Kumar Mishra, Naib
Tehsildar, Sadar, Fatehpur.

24.

Her
dying
declaration/statement, which was signed
by her, is self revealing. She has
unequivocally attributed the pivotal role
of setting her ablaze to the husband
Ramjan Shah (Appellant no.1). She
further stated that she was put to fire at
her marital place at Awazipur, Fatehpur.
She next submitted therein that her two
sisters-in-law, namely, Smt. Rashida
Begam
and
Km.
Shabbo
virtually
dragged her to the kitchen, where Km.
Shabbo handed over a gallon of kerosene
oil to Ramjan Shah, who poured the
kerosene oil upon her and Mst. Rashida
Begum threw a burning matchstick upon
her. She started screaming and crying for
help. Her relatives and neighbourhood
rushed at the place of occurrence and
tried their best to rescue her. She further
stated in the very dying declaration that
her husband did not like her and used to
physically assault her on every petty,
insignificant and trivial issue/matter.
Smt. Rashid Begam is a married woman
but on the date of incident, she was
present at the place of incident. Km.
Shabbo is unmarried girl. She further
stated, that her husband is with her for
last ten months. The mother-in-law of
Ajimunnisha is physically ill. Her fatherin-law has gone out of station and arrived
only after hearing the incident. Ramjan
Shah (husband) carries business of
garment at Goa but from last ten months,
he is with her.

25. The aforesaid dying declaration
concluded within half an hour at 2.05
a.m. in the night of 26.05.2009, whereby
the doctor certified that during recording
of statement/dying declaration she was
conscious and mentally oriented. The
dying declaration was self revealing
wherein she attributed active role of
setting her on fire to her husband and her
both
sister-in-laws
(Nanads)
by
categorically stating that all the threes,
mercilessly and brutally put on fire after
pouring kerosene oil upon her.

26. In the light of the aforesaid
facts, it is imperative to meet the
arguments of Sri Jafri, Senior Advocate
mentioning above as submitted by him
that the deceased was never admitted to
District
Hospital,
Fatehpur
on
25/26.05.2009 nor the prosecution had
lead any evidence of her admission in the
hospital. Dr. Vinod Kumar Chauhan,
PW-7 in his testimony submits that he
was on duty as Emergency Medical
Officer
(E.M.O.),
who
issued
the
certificate of her mental condition and
during his duty hours the injured was
brought to the hospital. For the purposes
of recording of dying declaration, it is not
a condition precedent that the patient
must be admitted in the hospital. Nor any
particular mode is prescribed to record
the dying declaration. In a an emergent
condition
the
required
bookish
formalities may be dispensed with and
would not reflect upon the authenticity
8 All. Ramjan Shah & Ors. Vs. State of U.P.
581
and genuineness of the dying declaration,
as mentioned in the depositions of the
concerned doctor that her condition was
serious,
precarious
and
speedily
deteriorating. She was in the need of
immediate
medical
attention,
which
could only be given to her at Kanpur.
The poor distressed father beyond his
ways and means took the daughter to a
private nursing home at Kanpur and got
her admitted therein.

This Court is conscious of the
fact to the extent that the story mentioned
in the FIR and a dying declaration of
Ajimunnisha are poles apart and in a
stark contrast to each other. In a dying
declaration there is not even a whisper
with regard to the alleged demand of
additional dowry and on account of
which she was harassed and maltreated
or assaulted by her husband and in-laws.
She stated in her dying declaration that
her husband does not like her, thus there
is no parallel or compatibility in the story
set up in the FIR visa-a-vis a dying
declaration. It seems that might be the
reason that the learned trial judge framed
the alternative charge under Section
302/34 IPC against the appellants.

27. This Court from the aforesaid
discussions, finds that there is no
abnormality or illegality on this score.
The depositions of Dinesh Kumar Misra
PW-6 and Dr. Vinod Kumar Chauhan
PW-7 clearly establishes the fact that
dying declaration of the deceased was
recorded at District Hospital, Fatehpur.
Mere absence of any documentary proof
regarding her admission in the hospital
would not negate the authenticity of the
dying declaration. The dying declaration,
the deceased in an unambiguous term
attributed the active role to the appellants
for reducing her to this pathetic stage,
when she was at Awazipur Fatehpur at
her nuptial home.

28.

The
doctrine
of
dying
declaration is enshrined in the legal
maxim "Nemo moriturus praesumitur
mentire" which means a man will not
meet his maker with a lie in his mouth.

29. The doctrine of dying declaration
contains Section 32 of the Indian Evidence
Act. The exception to the general rules
containing Section 60 of the Evidence Act
provides that oral evidence in all cases must
be direct i.e. it must be evidence of witness,
who says he saw it. The dying declaration is,
in fact, the statement of a person, which
cannot be called as witness and, therefore,
cannot
be
cross-examined
and
such
statements themselves are relevant and
essential facts in certain cases. Different
courts of law considered time and again the
relevance/probative value of the dying
declaration
recorded
under
different
situation. The required law on the aforesaid
issue candidly underlines that if the court is
satisfied with the dying declaration and
made
voluntarily
by
the
deceased,
conviction can be made solely on it, without
any further corroboration.

30. Hon'ble the Supreme Court has
opined
that
when
court
draws
a
conclusion that dying declaration is true
and reliable and has been recorded by the
person at the time when the deceased was
in physically fit and mentally oriented to
make such declaration and has not been
under any tutoring/duress or without any
prompting, it can be the sole basis of
recording the conviction.

31. Recently in the case of Jagbir
Singh Vs. State (NCT of Delhi) in
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal No. 967 of 2015
decided on 4th September 2019, the
Hon'ble Apex Court lucidly analyzed the
true import of Section 35 of the Indian
Evidence Act. A distinction exists
between English Law and Indian Law
with regard to the dying declaration.

"18. Now
we proceed
to
examine the principle of evaluation of
any dying declaration. There is a
distinction between the evaluation of a
dying declaration under the English law
and that under the Indian law. Under the
English law, credence and the relevancy
of a dying declaration is only when a
person making such a statement is in a
hopeless condition and expecting an
imminent death.

So under the English law, for
its admissibility, the declarant should
have been in actual danger of death at
the time when they are made, and that he
should have had a full apprehension of
this danger and the death should have
ensued. Under the Indian law the dying
declaration is relevant whether the
person who makes it was or was not
under expectation of death at the time of
declaration.
Dying
declaration
is
admissible not only in the case of
homicide but also in civil suits. Under the
English law, the admissibility rests on the
principle that a sense of impending death
produces in a man's mind the same
feeling as that of a conscientious and
virtuous man under oath.

19. But when a declaration is
made, either oral or in writing, by a
person whose death is imminent, the
principle attributed to Mathew Arnold
that truth sits upon the lips of a dying
man and no man will go to meet his
maker with falsehood in his mouth will
come into play."

32. In the case of Sham Shankar
Kankaria Vs. State of Maharashtra
reported in 2006(13)SCC 165, relevant
extract of the judgement is quoted hereinbelow:-

"Para-8- At this juncture, it is
relevant to take note of Section 32 of the
Indian Evidence Act, 1872 (in short
Evidence Act') which deals with cases in
which statement of relevant fact by
person who is dead or cannot be found,
etc. is relevant. The general rule is that
all oral evidence must be direct viz., if it
refers to a fact which could be seen it
must be the evidence of the witness who
says he saw it, if it refers to a fact which
could be heard, it must be the evidence of
the witness who says he heard it, if it
refers to a fact which could be perceived
by any other sense, it must be the
evidence of the witness who says he
perceived it by that sense. Similar is the
case with opinion. These aspects are
elaborated in Section 60. The eight
clauses of Section 32 are exceptions to
the general rule against hearsay just
stated. Clause (1) of Section 32 makes
relevant what is generally described as
dying declaration, though such an
expression has not been used in any
Statute. It essentially means statements
made by a person as to the cause of his
death or as to the circumstances of the
transaction resulting in his death. The
grounds
of
admission
are:
firstly,
necessity for the victim being generally
the only principal eye-witness to the
crime, the exclusion of the statement
might deflect the ends of justice; and
secondly, the sense of impending death,
which creates a sanction equal to the
8 All. Ramjan Shah & Ors. Vs. State of U.P.
583
obligation of an oath. The general
principle on which this species of
evidence is admitted is that they are
declarations made in extremity, when the
party is at the point of death and when
every hope of this world is gone, when
every motive to falsehood is silenced, and
the mind is induced by the most powerful
Sham Shankar Kankaria vs State Of
Maharashtra on 1 September, 2006
Indian
Kanoon
-
http:
//
indiankanoon.org / doc /1144121 /
3considerations to speak the truth; a
situation so solemn and so lawful is
considered by the law as creating an
obligation equal to that which is imposed
by a positive oath administered in a
Court of justice. These aspects have been
eloquently stated by Lyre LCR in R. v.
Wood Cock (1789) 1 Leach 500.
Shakespeare makes the wounded Melun,
finding
himself
disbelieved
while
announcing the intended treachery of the
Dauphin Lewis explain: -

"Have I met hideous death
within my view,

Retaining but a quantity of life,

Which bleeds away even as a
form of wax,

Resolveth
from
his
figure
'gainst the fire?

What is the world should make
me now deceive,

Since I must lose the use of all
deceit?

Why should I then be false
since it is true

That I must die here and live
hence by truth?"

(See King John, Act V, Scene
iv)

Para-10- This is a case where
the basis of conviction of the accused is
the dying declaration. The situation in
which a person is on deathbed is so
solemn and serene when he is dying that
the grave position in which he is placed,
is the reason in law to accept veracity of
his statement. It is for this reason the
requirements
of
oath
and
crossexamination are dispensed with. Besides,
should the dying declaration be excluded
it will result in miscarriage of justice
because the victim being generally the
only eye-witness in a serious crime, the
exclusion of the statement would leave
the Court without a scrap of evidence.

Para-11-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, or
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 assailant. 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 as
584 INDIAN LAW REPORTS ALLAHABAD SERIES
indicated in Smt. Paniben v. State of
Gujarat (AIR 1992 SC 1817):

"(i) There is neither rule of law
nor of prudence that dying declaration
cannot
be
acted
upon
without
corroboration. [See Munnu Raja & Anr.
v. The State of Madhya Pradesh (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. [See State of
Uttar Pradesh v. Ram Sagar Yadav and
Ors. (AIR 1985 SC Sham Shankar
Kankaria vs State Of Maharashtra on 1
September, 2006 and Ramavati Devi v.
State of Bihar (AIR 1983 SC 164)]