# Sageer & Anr v. State of U.P

- **Citation:** (2022) 10 ILRA 274
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-28
- **Case number:** Criminal Appeal No. 6842 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sageer-anr-v-state-of-u-p-47714
- **Pages:** 13

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Section
304-B
-
3⁄4
Dowry
Prohibition
Act,1961-Challenge
toConviction- acid attack-dying declarationdeceased died due to septicemia caused
by burn injuries-deceased survived for
more than two months after making dying
declaration-deceased was subjected to
cruelty and was made victim of acid attack
soon before her death-PW-1,PW-2 & PW-3
turned hostile-PW-8 who recorded the
the dying declaration fully supported the
prosecution case-defence statements are
contradictory-role of appellants is clear
from the dying declaration and other
evidences-Accused failed to discharge
their burden of proof u/s 113B of Indian
Evidence Act-Ingredients of Section 304-B
are fulfilled-Hence, Learned trial court has
committed no error on acting on the sole
basis of dying declaration-Convicts have
been in jail for more than 12 years i.e.
sufficient for them-Hence, they may be set
free.(Para 1 to 58)

B. The testimony of hostile witnesses can
be relied upon to the extent it supports
the prosecution case. It is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat
him as hostile and cross-examined him.
The evidence of such witness cannot be
treated as effaced or washed off the
record altogether.(Para 29)

C. The law on the issue of dying
declaration can be summarized to the
effect that in case the court comes to the
conclusion that the dying declaration is
true and reliable, has been recorded by a
person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 38 to 52)

The appeal is partly allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,985 of 41,806. This is a partial read: ask again with offset=39985 for what follows._

274 INDIAN LAW REPORTS ALLAHABAD SERIES
towards striking a balance between reform and
punishment. The protection of society and
stamping out criminal proclivity must be the
object of law which can be achieved by
imposing appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain order
and peace, should effectively meet challenges
confronting the society, as society could not
long endure and develop under serious threats
of crime and disharmony. It is therefore,
necessary to avoid undue leniency in imposition
of sentence. Thus, the criminal justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At
the same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

78. Keeping in view the facts and
circumstances of the case and also keeping in
view criminal jurisprudence in our country
which is reformative and corrective and not
retributive, this Court considers that no accused
person is incapable of being reformed and
therefore, all measures should be applied to
give them an opportunity of reformation in
order to bring them in the social stream.

79. As discussed above, 'reformative
theory of punishment' is to be adopted
and for that reason, it is necessary to
impose punishment keeping in view the
'doctrine of proportionality'. It appears
from perusal of impugned judgment that
sentence awarded by learned trial court
for life term is very harsh keeping in
view
the
entirety
of
facts
and
circumstances of the case and gravity of
offence.
Hon'ble
Apex
Court,
as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

80. Recently in Khokan Alias
Khokhan
Vishwas
vs.
State
of
Chhattisgarh, (2021) 2 Supreme Court
Cases 365, the Hon'ble Supreme Court in
almost similar circumstances modified the
sentence under Section 302 IPC for life
imprisonment for the offence under Section
304 Part-I IPC sentencing the convict to the
period already undergone by him that was
14.5 years in that case.

81. For the reasons recorded herein
above and following the dictum given by
the Hon'ble Apex Court in Khokan Alias
Khokhan Vishwas case (supra), we hold
the accused-appellant, Naresh Chandra,
guilty of commission of offence under
Section 304 Part I IPC and sentence him to
10 years rigorous imprisonment. The fine
and default sentence is maintained. If the
accused-appellant, Naresh Chandra, is not
wanted in any other offence, he shall be set
free.

82. Appeal is partly allowed, as
modified above.

83. Record and proceedings be sent
back to the Court below forthwith.
----------
(2022) 10 ILRA 274
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 6842 of 2009

Sageer & Anr. ...Appellants
Versus
State of U.P. ...Respondent
10 All. Sageer & Anr. Vs. State of U.P.
275
Counsel for the Appellants:
Sri R.P. Tiwari, Sri R.N. Maurya, Sri Ravi
Shankar Tripathi

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law-Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Section
304-B
-
3⁄4
Dowry
Prohibition
Act,1961-Challenge
toConviction- acid attack-dying declarationdeceased died due to septicemia caused
by burn injuries-deceased survived for
more than two months after making dying
declaration-deceased was subjected to
cruelty and was made victim of acid attack
soon before her death-PW-1,PW-2 & PW-3
turned hostile-PW-8 who recorded the
the dying declaration fully supported the
prosecution case-defence statements are
contradictory-role of appellants is clear
from the dying declaration and other
evidences-Accused failed to discharge
their burden of proof u/s 113B of Indian
Evidence Act-Ingredients of Section 304-B
are fulfilled-Hence, Learned trial court has
committed no error on acting on the sole
basis of dying declaration-Convicts have
been in jail for more than 12 years i.e.
sufficient for them-Hence, they may be set
free.(Para 1 to 58)

B. The testimony of hostile witnesses can
be relied upon to the extent it supports
the prosecution case. It is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat
him as hostile and cross-examined him.
The evidence of such witness cannot be
treated as effaced or washed off the
record altogether.(Para 29)

C. The law on the issue of dying
declaration can be summarized to the
effect that in case the court comes to the
conclusion that the dying declaration is
true and reliable, has been recorded by a
person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 38 to 52)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Maya Devi Vs St. of Har. (2015) 17 SCC 405

2. M.P. Vs Joginder (2022) 5 SCC 401

3. St. of Guj. Vs Anirudh Singh & anr. (1997) 6
SCC 514

4. Rajesh Yadav & anr. Vs St. of U.P. (2022)
SCC Online SC 150

5. Bable Vs St. of Chattisgarh (2012) AIR SC
2621

6. Lakhan Vs St. of M. P. (2010) 8 SCC 514

7. Krishan Vs St. of Har. (2013) 3 SCC 280

8. Ramilaben Hasmukhbhai Khristi Vs St. of Guj.
(2002) 7 SCC 56

9. Deo Narain Mandal Vs St. of U.P.(2004) 7
SCC 257

10. Ravada Sasikala Vs St. of A.P. (2017) AIR
SC 1166

11. Jameel Vs St. of U.P. (2010) 12 SCC 532

12. Guru Basavraj Vs St. of Karn. (2012) 8 SCC 734

13. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

14. St. of Punj. Vs Bawa Singh (2015) 3 SCC
441

15. Raj Bala Vs St. of Har. (2016) 1 SCC 463

16. Khokan @ Khakhan Vishwas Vs St. of
Chhattisgarh (2021) 2 SCC 365

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)
276 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This criminal appeal is directed
against the judgement and order dated
4.11.2009 in Sessions Trial No. 949 of
2003 (Crime No. 323 of 2002) State Vs.
Sageer and Ors, under Sections 304B I.P.C.
and 3/4 Dowry Prohibition Act, P.S.- Ijjat
Nagar, District-Bareilly convicting and
sentencing the appellants under Section
304-B I.P.C. to undergo life imprisonment
and under Section 3/4 Dowry Prohibition
Act to undergo imprisonment for two years,
further imposing fine of Rs. 10,000/- each
and in default of payment of fine to
undergo 2 months additional imprisonment.

2. The prosecution story as culled out
from the FIR is that the deceased, the sister
of the informant, was married with accused
Sageer. The in-laws of the deceased were
demanding colour T.V. and motorcycle as
additional dowry and she was subjected to
cruelty on account of that demand. She
used to tell the incidents of cruelty to her
family members, who expressed their
inability to the accused persons but they did
not pay any attention to it and the
harassment continued. On 27.4.2002 on
information by a villager, the informant
along with his family members reached the
house of the accused persons where he
found his sister bitterly burnt and she told
that her husband Sageer, mother-in-law
Jaitoon, brother-in-law Naseer and Ameer
and sister-in-law Munija Begum caught
hold her in the night about 9.00 pm. and her
husband poured acid upon her in order to
do away with her.

3. The FIR was lodged and
investigation started. During investigation
the injured died and Section 304-B I.P.C.
was added to the matter.

4. The I.O. proceeded to record the
statement of witnesses, performed inquest,
sent the body of the deceased for autopsy,
inspected the place of occurrence and
submitted charge sheet against the accused
persons

5. The accused persons appeared
before the Magisterial Court, the case being
exclusively triable by the Sessions Court
was committed to the Court of Sessions by
the Magistrate.

6. Charge under Section 304-B I.P.C.
and 3/4 Dowry Prohibition Act was framed
against the accused persons who denied of
the charges and claimed to be tried.

7.
 The
trial
started
and
the
prosecution in order to prove its case
examined 12 witnesses in all as P.W.1 the
informant/ brother of the deceased, P.W.2
Smt. Shahjahan, mother of the deceased,
P.W.3 Altaf, brother of the deceased, P.W.4
Constable Dharampal Singh, Scribe of the
FIR,
P.W.5
S.D.M
Karmveer
Singh,
witness of inquest report, P.W.6 Dr. A.K.
Jain, who performed the autopsy of the
dead body of the deceased, P.W.7 Dr.
Kripal Singh, who prepared injury report of
the deceased when she was alive, P.W.8
Tehsildar Shiv Bhajan, who recorded the
dying declaration of the deceased, P.W.9
Rajendra Kumar Additional S.P. and second
I.O. of the case, P.W.10 Constable Rakesh
Dubey, who has been examined as
secondary witness for the first I.O. S.I.
Bihari Lal Yadav.

8. In documentary evidence, the
prosecution relied upon written report Ex.
Ka-1, application for post mortem Ex.-Ka2, inquest report Ex.Ka-3, FIR Ex.Ka-4,
G.D. Ex.Ka-5, specimen seal Ka-6, photo
nash Ex.Ka-7, letter to R.I. Ex.Ka-8, letter
to C.M.O. Ex.Ka-9, chalan lash Ex.Ka-10,
autopsy report Ex.Ka-11, injury report
10 All. Sageer & Anr. Vs. State of U.P.
277
Ex.Ka-12, dying declaration Ex.Ka13,
charge sheets Ex.Ka-14, Ex.Ka-16 and site
plan Ex.Ka-15.

9. After completion of prosecution
evidence, the incriminating circumstances
and evidences were put to the accused
persons in their statements recorded under
Section 313 Cr.P.C. wherein they told the
whole prosecution story and evidence as
false and fabricated and claimed to be
innocent. Accused Sageer stated that at the
time of incident he was at Bikaner in
connection with his job and came back on
27.04.2002 on being informed by his
mother by telephone regarding the incident
of the burning of his wife. After coming
back when he went to the hospital, the
treatment of his wife was going on but the
police arrested him in the same evening. He
has further stated that he had married with
Parveen in the year 2002 and they had a
son, who is no more. He and his younger
brother live separately in a rented house in
the same village. His brother Naseer had
gone to the house of his in-laws in the very
night of the occurrence, who reached in the
morning and got Parveen admitted in the
hospital since his mother was alone in the
night. Parveen could not be admitted in the
hospital in the night. The police reached
after lodging of the FIR. He does not know
as to when Parveen died in the hospital.
Co-accused Naseer has also narrated the
same version in his statement under Section
313 Cr.P.C.

10. Co-accused Smt. Jaitoon, the
mother-in-law of the deceased died during
pendency of the trial and the case was
abated against her vide order dated
21.11.2005.

11. We are of the considered opinion
that a perusal and analysis of the oral
evidence along with documentary evidence
is desirable to reach the correct conclusion.

12. P.W.1, the informant has proved
the written report Ex.Ka-1 and has narrated
the story like this that about 4-1/4 years ago
his sister Parveen was living in her
matrimonial house. In the morning a
villager informed him that his sister is lying
ablaze in her house. When he reached there
along with his family members he found
Parveen unconscious and burnt. He came to
the police station along with Parveen,
dictated the report to Sharakat Khan and on
the basis of that written report case was
registered in the police station. He has
proved the written report as Ex.Ka-1,
however, he has stated that the written
report was not read over him by the scribe.
He has also stated that the factum of
pouring acid upon Parveen was not dictated
by him and also he did not dictate this fact
that his sister had told him that the accused
persons caught hold of her in the night and
in order to kill her, his husband threw acid
upon her. He has also proved his
application
given
to
S.P.
City
for
performing the post mortem of the body of
her sister as Ex.Ka-2. He has been declared
hostile by the prosecution. He has denied
all the allegations of demand of dowry and
cruelty caused by the accused persons to
her sister. In his cross-examination he has
stated that his sister never told him about
the demand of dowry or harrasment caused
to her by the accused persons. He has also
narrated that there was no electricity
connection in the house of the accused
persons and they used a dibbi of kerosene
oil for light.

13. P.W.2 Smt. Shahjahan, the mother
of the deceased has also not supported the
prosecution version in her examination-inchief and has been declared hostile. All the
278 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations against the accused persons in
respect of demand of dowry and cruelty to
her daughter and even her statement under
Section 161 Cr.P.C. have been denied by
her in her deposition.

14. P.W.3 Altaf is the brother of the
deceased and following the statements of
P.W.1 and P.W.2, he has also submitted that
accused persons are innocent, they have
never demanded dowry from her sister and
never subjected any kind of cruelty to her.
On the inquest report he has proved his
thumb impression as Ex.Ka-3 and has
denied that the I.O. had ever taken his
statement under Section 161 Cr.P.C.

15. P.W.4 Constable Dharampal Singh
is the scribe of the FIR, who has proved the
Chik FIR and G.D. of the case as Ex. Ka-4,
Ka-5 respectively.

16. P.W.5 S.D.M. Karmendra Singh
has conducted the inquest proceedings and
in his statement he has affirmed his
signature over inquest report Ex.Ka-3 and
has also proved the papers sent for the post
mortem of the deceased as Ex.Ka-6, Ex.Ka7, Ex.Ka-8, Ex.Ka-9 and Ex.Ka-10.

17. P.W.6 Dr. A.K. Jain has performed
the autopsy of the deceased. He has proved
the autopsy report Ex.Ka-11. Following
anti mortem injuries were found by him
over the body of the deceased

मृत्यु पूवष चोटें-

1- सतह से गहराई तक आोंकशक रूप
से भर चुका जला हुआ घाव गदषन के सामने व
पीिे की तरफ सीने व पेट के कहस्से पर सामने
की तरफ पेट के कनचले कहस्से मे सामने दाकहनी
तरफ, कसर के पीिे नीचे की तरफ, दोनोों पैर
आोंकशक रूप से सीने के पीिे की तरफ।

2- पैडसोल सीने व पेट के पीिे की
तरफ।

18. He had performed the autopsy on
4.7.2002 at 4.15 p.m. and has opined that
the death was caused due to septicemia/
toxacemia.

19. P.W.7 Dr. Kripal Singh has
medically examined the deceased, when
she was alive. He was found that several
burn injuries on various parts of the body
of the injured as head, face, neck, below the
elbow, chest, abdomen, thigh, hips etc. and
she was burnt about 75%. He has proved
the injury report as Ex.Ka-12.

20. P.W.8 Tehsildar Shiv Bhajan has
recorded the dying declaration of the
deceased on 27.4.2002 and has narrated
that the doctor present over there had
identified her and her family members were
turned out by him at the time of recording
the statement. He has also narrated that the
statement was recorded after her medical
examination by the doctor. He has proved
the dying declaration as Ex.Ka-13 and read
over it before the Court, wherein it was
mentioned like this.

ब्यान परवीन पत्नी शकील आयु 20
वर्ष कन० परर बहोड़ ा, इज्जत नगर, बरेली

--------------------------------------

"बहोशोहवास
ब्यान
ककया
कक
कदनाोंक 26.4.02 को दोपहर के समय मेरे पकत
शकील पुत्र बाबू सास जैतुन पत्नी बाब, देवर
कलयाकत पुत्र बाबू, दूसरा देवर मतलो पुत्र बाबू
आकद ने कमलकर मुझे पीटा तथा मुझ पर तेजाब
डालकर मुझे जला कदया। ब्यान सुनकर तसदीक
ककये।"

21. P.W.9 Additional Superintendent
of Police Rajendra Kumar is the second
10 All. Sageer & Anr. Vs. State of U.P.
279
I.O. of the case. He has narrated the
proceedings of investigation conducted by
him and has proved the charge sheet as
Ex.Ka-14.

22. P.W.10.Constable Rakesh Dubey
has been examined as secondary witness
for the first I.O. of the case S.I. Bihari Lal
Yadav and he has proved his hand writing
and signature over the site plan Ex.Ka-15
and charge sheet Ex.Ka-16.

23. The trial Court relying upon the
aforesaid
evidence
found
the
dying
declaration as cogent and reliable evidence
and opined that the prosecution has proved
its case beyond reasonable doubt and
passed conviction order against the accused
Sageer and Naseer under Section 304-B
I.P.C. and Section 3/4 D.P. Act and
sentenced them accordingly.

24. Heard Shri Ravi Shankar Tripathi,
for the appellants, Shri N.K. Srivastava for
the State and perused the record.

25. The learned counsel for the
appellants has submitted that the prosecution
is guilty of suppressing the genesis of the
incident, therefore, an adverse inference
ought to be drawn against the prosecution.
Assailing the impugned judgement on
various grounds, he has firstly taken us to the
depositions of the witnesses P.W.1, P.W.2 and
P.W.3, who are hostile witnesses and on the
basis of their statements he has vehemently
argued that the ingredients of Section 304-B
I.P.C. which the prosecution is bound to
prove to bring home the charge against the
accused, are totally absent in the present
matter and no case as such is made out
against the appellants.

26. To appreciate the arguments
advanced by the learned counsel for the
appellants we have to keep in our mind the
ingredients which the prosecution has to
prove in order to convict the accused for
the offence under Section 304-B I.P.C. The
ingredients have been settled in a catena of
judgements of Hon'ble Apex Court. In
Maya Devi Vs. State of Haryana (2015)
17 SCC 405 it has been held as herein
under-

"In order to convict an accused
for the offence punishable under Section
304B IPC, the following essentials must be
satisfied:

(i) the death of a woman must
have been caused by burns or bodily injury
or
otherwise
than
under
normal
circumstances;

(ii)
such
death
must
have
occurred within seven years of her
marriage;

(iii) soon before her death, the
woman must have been subjected to cruelty
or harassment by her husband or any
relatives of her husband;

(iv) such cruelty or harassment
must be for, or in connection with, demand
for dowry".

27. Recently in State of M.P. Vs.
Joginder (2022) 5 SCC 401, the Hon'ble
Apex Court has reiterated the aforesaid
principle.

28. In the light of the aforesaid
preposition, the evidence on record has to
be scrutinized. The informant, who has
denied the contents of his written report
Ex.Ka-1 is certainly trying to hide facts
from the Court. He has expressly stated that
the written report was dictated by him to
Sharakat Khan and whatsoever he has
stated the same was written in it. He had
identified his thumb impression upon the
tehrir and has also clarified that in the
280 INDIAN LAW REPORTS ALLAHABAD SERIES
police station he had given the same tehrir
and the case was lodged thereupon.
Subsequently, he turned hostile and denied
the contents of Ex.Ka-1.

29. The law in respect of the hostile
witness is absolutely settled in a catena of
decisions. The Hon'ble Supreme Court and
this High Court have held that the evidence
of a hostile witness would not be rejected,
if not spoken in favour of the prosecution
but it can be subjected to close scrutiny and
that portion of the evidence consistent with
the case of prosecution may be accepted.

30. In State Of Gujarat vs Anirudh
Singhh and Another (1997) 6 SCC 514, it
has been held that virtually it is a legal duty
of the trial Judge or the appellate Judge to
scan the evidence, test it on the anvil of
human conduct and reach a conclusion
whether the evidence brought on record
even of the turning hostile witnesses would
be sufficient to bring home the commission
of the crime.

31. In Rajesh Yadav and Another
Vs. State of U.P. 2022 SCC Online SC
150 it has been held like this:

".....21.The expression "hostile
witness" does not find a place in the Indian
Evidence Act. It is coined to mean
testimony of a witness turning to depose in
favour of the opposite party. We must bear
it in mind that a witness may depose in
favour of a party in whose favour it is
meant to be giving through his chief
examination, while later on change his
view in favour of the opposite side.
Similarly, there would be cases where a
witness does not support the case of the
party starting from chief examination itself.
This classification has to be borne in mind
by the Court. With respect to the first
category, the Court is not denuded of its
power to make an appropriate assessment
of the evidence rendered by such a witness.
Even a chief examination could be termed
as evidence. Such evidence would become
complete after the cross examination. Once
evidence is completed, the said testimony
as a whole is meant for the court to assess
and appreciate qua a fact. Therefore, not
only the specific part in which a witness
has turned hostile but the circumstances
under which it happened can also be
considered, particularly in a situation
where the chief examination was completed
and there are circumstances indicating the
reasons behind the subsequent statement,
which could be deciphered by the court. It
is well within the powers of the court to
make an assessment, being a matter before
it and come to the correct conclusion".

32. The evidence of P.W.2 and P.W.3
stand on the same footings as is of P.W.1.
The learned counsel for the appellants has
failed to explain as to why the informant
went to the police station with the
deceased, who was ablaze at that time if
she was not subjected to acid attack by her
husband and in-laws. The learned counsel
for the appellants has quoted the statements
of P.W.1, who has tried to explain the
reason behind taking away her sister to the
police station before got her admitted into
the hospital. In his cross-examination P.W.1
has stated that some persons had told him
that without the police intervention the
persons who are got injured in accident or
by burning are not admitted into the
hospital and that is why he went to the
police station for lodging of FIR before
going to the hospital.

33. We are of the considered view that
this statement of P.W.1 is false and
fabricated. If the deceased was burnt
10 All. Sageer & Anr. Vs. State of U.P.
281
accidentally and the informant wanted
police intervention before any medical
treatment he could have only inform the
police regarding the incident of burning of
his sister. He had no need to lodge an FIR
in respect of that incident, merely an
information was sufficient to take the
police into action, if any how informant
was under impression that the police ought
to be informed prior to the injured taking to
the hospital.

34. In Bable vs State Of Chattisgarh
AIR 2012 SC 2621 it has been held that
"FIR by itself is not a substantive piece of
evidence but it certainly is a relevant
circumstance of the evidence produced by
the Investigating Agency. Merely because
the informant had turned hostile, it cannot
be said that the FIR would lose of all its
relevancy and cannot be looked into for any
purpose". It is very important to note that
after lodging of the FIR the investigation
was started and culminated into a charge
sheet.

35. The trial Court has appreciated the
evidence of P.W.1, P.W.2 and P.W.3 and has
opined that the witnesses are deliberately
trying to hide the facts. He has also
impressed upon Ex.Ka-2, which is an
application given by the informant P.W.1 to
S.P. City, Bareilly for performing the post
mortem of the deceased alleging therein
that it was a bride burning case and the
accused persons killed the deceased by acid
attack. Why Ex.Ka-2 was given by him to
the high police official, has no where been
explained by P.W.1 in his entire deposition.

36. We are of the considered opinion
that the learned trial Court has rightly
impressed upon the evidentiary value of
Ex.Ka-2 and has reached the correct
conclusion.

37. While the FIR has been found a
credible piece of evidence, we can
successfully relied upon the contents found
therein. It has been clearly mentioned in the
FIR that the marriage took place two years
before the occurrence and the in-laws of the
deceased were in continuous demand of
colour t.v & motor cycle and she was
subjected to cruelty and harassment for
demand of dowry, and the deceased always
used to tell all the story to her family
members,
several
times
the
accused
persons kicked her out of the house and the
informant and his family members kept on
requesting them not to torture the deceased,
but in vain.

38. The dying declaration of the
deceased has been recorded by the
Tehsildar P.W.8. The learned counsel for
the appellants has vehemently argued that
the dying declaration is not a fair and
reliable piece of evidence in this matter and
the circumstances surrounding it are
suspicious.

39. The trial Court has examined the
veracity of the dying declaration Ex.Ka-13
in detail in the impugned judgement. From
the perusal of the whole deposition of
P.W.8, we do not find any adversity in his
statement. So far as the dying declaration is
concerned, the doctor has given his
certificate before recoding it that Mrs.
Parveen is conscious to give her statement
and after the statement is recorded he has
again certified that Mrs. Parveen remained
in her senses throughout the recording of
statement.

40.

Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
282 INDIAN LAW REPORTS ALLAHABAD SERIES
has summarized the law regarding dying
declaration in Lakhan vs. State of
Madhya Pradesh [(2010) 8 Supreme
Court Cases 514], in this case, Hon'ble
Apex Court held that 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". The
doctrine of dying declaration is enshrined
in Section 32 of Evidence Act, 1872, as an
exception to the general rule contained in
Section 60 of Evidence Act, which provides
that oral evidence in all cases must be
directed, i.e., it must be the evidence of a
witness, who says he saw it. The dying
declaration is, in fact, the statement of a
person, who cannot be called as witness
and, therefore, cannot be cross-examined.
Such statements themselves are relevant
facts in certain cases.

41. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
It is also held by Hon'ble Apex Court in the
aforesaid case, that a dying declaration
recorded by a competent Magistrate would
stand on a much higher footing than the
declaration recorded by office of lower
rank, for the reason that the competent
Magistrate has no axe to grind against the
person named in the dying declaration of
the victim.

42. P.W.8 is absolutely independent
witness. In the wake of aforesaid judgment
of Lakhan (supra), dying declaration
cannot be disbelieved, if it inspires
confidence.
On
reliability
of
dying
declaration and acting on it without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana [(2013) 3
Supreme Court Cases 280] that it is not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused. Hence, in order
to pass the test 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
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.

43. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7
SCC 56], the Hon'ble Apex Court held that
under the law, dying declaration can form
the sole basis of conviction, if it is free
from any kind of doubt and it has been
recorded in the manner as provided under
the law. It may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
10 All. Sageer & Anr. Vs. State of U.P.
283
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

44. From the above precedents, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

45. In dying deceleration of the
deceased, it is also relevant to note that
deceased died after more than two months
of recording it. It means that she remained
alive for more than two months after
making
dying
declaration,
therefore,
truthfulness of dying declaration can
further be evaluated from the fact that she
survived for more than two months after
making it from which it can reasonably be
inferred that she was in a fit mental
condition to make the statement at the
relevant time.

46. From the above, it is also clear
that the deceased was subjected to cruelty
and was made a victim of acid attack soon
before her death.

47. Hence, we find that all the
ingredients to bring home charge against
the accused under Section 304-B I.P.C are
fulfilled
and
the
prosecution
has
successfully established all the conditions
in order to enable it to ask for conviction of
the accused persons in the present case of
dowry death.

48. The provisions of Section 113 B
of Indian Evidence Act come into picture at
this juncture. Section 113 B of Indian
Evidence Act reads like this.

"[113B. Presumption as to dowry
death.--When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the Court shall presume that such person
had caused the dowry death. Explanation.--
For the purposes of this section, "dowry
death" shall have the same meaning as in
section 304B, of the Indian Penal Code, (45
of 1860).]"

49. A bare perusal of the aforesaid
provisions makes it clear that if the
prosecution succeeds in establishing the
pre-conditions to obtain a benefit of
presumption under Section 113B of the
Indian Evidence Act in a case under
Section 304-B I.P.C. it will be presumed
that the accused has committed the offence
and the burden of proof is shifted upon the
accused that he was innocent.

50. It is pertinent to mention here that
no defence evidence has been adduced by
the accused persons. In his statement under
Section 313 Cr.P.C., accused Sageer has
taken a defence that he was at Bikaner in
the
fateful
night
and
after
getting
information from his mother he came back
in the morning but at the same time his
brother co-accused Naseer in his statement
284 INDIAN LAW REPORTS ALLAHABAD SERIES
has stated that accused Sageer had gone to
Bareilly for labour work. It is a major
contradiction. Secondly, co-accused Naseer
has stated that when he saw the deceased
(then injured) ablaze he immediately went
away to the house of the in-laws of accused
Sageer and stayed there at night and
returned in the morning. The statement is
totally unnatural. When the mother of the
accused persons was alone in the house and
the deceased was in bitterly burnt condition
why co-accused Naseer went away to the
house of the in-laws of accused Sageer and
why he did not make any effort to provide
medical
treatment
to
the
deceased
immediately, are the questions un-answered
by the defence.

51. The trial Court has fairly
discussed these aspects in his judgement
and has found that the accused persons are
telling a lie and moreover, no defence
evidence to prove the aforesaid narrations
has been adduced by the appellants, which
makes their statement totally false. They
have failed to discharge their burden of
proof under Section 113 B of Indian
Evidence Act after a presumption was
raised against them.

52. At the same time we have also
found that the medical evidence is quite
clear and corroborates the facts and
circumstances of the case, the minor
contradictions will have to be ignored and
they
cannot
form
the
dent
in
the
prosecution
of
the
accused
persons/
appellants. All the family members of the
deceased have become hostile as witnesses
but this fact also has failed to provide any
help
to
the
appellants.
The
dying
declaration goes in toto in favour of the
prosecution and, therefore, there is no
doubt left in our mind about guilt of the
present appellants and we concur with the
finding of the learned trial Court. However,
the question which falls in our minds is
whether on re-appraisal of the peculiar
facts and circumstances of the cases, the
sentence of life imprisonment imposed by
the trial Court is proper or not.

53. We have given our thoughtful
consideration to the request made by the
learned counsel for the appellants that they
have been languishing in jail for many
years in this case and keeping in view the
incarceration of the accused persons they
should be released as undergone.

54. While considering the aforesaid
aspects our attention is drawn towards the
fact that it is a case of septicemial death
and the death of the deceased is occurred
after more than two months of the
occurrence.

55. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

56. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
10 All. Sageer & Anr. Vs. State of U.P.
285
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

57. Keeping in view the facts and
circumstances of the case and also
keeping in view criminal jurisprudence in
our country which is reformative and
corrective and not retributive, this Court
considers that no accused person is
incapable
of
being
reformed
and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream.

58. The dictum given in the recent
judgment of State of M.P Vs. Jogendra
(supra) (para-20) can be followed in the
facts and circumstances of this case.
Hence, we conclude that as the convicts
have been in jail for more than 12 years
i.e sufficient for them, hence they may be
set free if not required in any other
offence. As far as Section 3/4 D.P. Act is
concerned, they have already undergone
the punishment and if the fine is not paid,
the default sentence would also have been
over by now which would begin from the
date after the period awarded by the trial
court is over. As far as Section 304-B of
I.P.C. is concerned, we punish all accused
to 12 years of imprisonment. The fine is
maintained as imposed by the trial Court
and default sentence will be 6 months
imprisonment. If the convicts have served
out their sentence they be released, if not
wanted in other offence.

59. The default sentence shall begin
after 12th year of incarceration.

60. Accordingly, the appeal is partly
allowed with the modification of the
sentence as above.
286 INDIAN LAW REPORTS ALLAHABAD SERIES

61. Record and proceedings be sent
back to the Court below forthwith.

62. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.
----------
(2022) 10 ILRA 286
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 8082 of 2008
With
Criminal Appeal No. 8081 of 2008
With
Criminal Appeal No. 8137 of 2008
With
Criminal Appeal No. 7626 of 2008
With
Criminal Appeal No. 7889 of 2008
With
Criminal Appeal No. 6973 of 2008

Rohtash Singh ...Appellant
Versus
State of U.P. ...Respondent