# Saleem v. State of U.P

- **Citation:** (2021) 11 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-29
- **Case number:** Criminal Appeal No. 1002 of 2003
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saleem-v-state-of-u-p-46677
- **Pages:** 16

## Headnote

Govt. Advocate

Accused
being
driver
of
deceased-pressurizing
deceased to make him permanent in his job-upon
deceased showing inability-locked the deceased in the
car-and set him ablaze-dying declaration-95% burn
injuries-eye
witnesses-son
and
wife-both
the
statement tallies-cannot be discarded merely on
ground of related witnesses-prosecution proved
beyond doubt.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,890 of 60,146. This is a partial read: ask again with offset=39890 for what follows._

11 All. Saleem Vs. State of U.P.
887
and is allowed. The accused person, as he had
no right to be heard at pre cognizance stage, was
given opportunity of being herad, the efforts
were taken to secure his presence at the time of
hearing, as the court below has dismissed the
application under Section 156(3) Cr.P.C. against
him, creating a right of hearing at this stage, but
he did not avail the opportunity.

39. The order dated 24.03.2021 passed by
the
Learned
Special
Judge,
S.C./S.T.
Act/Additional District & Sessions Judge, in
Case No.111 of 2021, (Hari Prakash Rawat Vs.
Raj Kumar Verma) under Section 156(3) of
Cr.P.C., Police Station Gosaiganj, District
Lucknow is set aside.

40. The learned Court below i.e. Learned
Special Judge, S.C./S.T. Act/Additional District
& Sessions Judge, Lucknow is directed to
exercise it's discretionary power and decide
afresh the application under Section 156(3)
Cr.P.C. moved by the appellant and to pass an
appropriate order in accordance with law,
keeping in view the observations made by this
Court as well as the direction given by Hon'ble
the Apex Court in the case of Lalita Kumar Vs.
Government of U.P. and others(Supra) within a
period of one month from the date, certified
copy of the order is produced before it.

41. Accordingly, the present criminal
appeal stands disposed of.
----------

(2021)12ILR A887
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 1002 of 2003
Saleem ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
S. Rehman, Anita Singh, Gauri Suwan Pandey,
Khalid Khan, Qazi S.R. Rahman, Rajiv Mishra,
Raza Zaheer, Rizwanul Haq

Counsel for the Respondent:
Govt. Advocate

Accused
being
driver
of
deceased-pressurizing
deceased to make him permanent in his job-upon
deceased showing inability-locked the deceased in the
car-and set him ablaze-dying declaration-95% burn
injuries-eye
witnesses-son
and
wife-both
the
statement tallies-cannot be discarded merely on
ground of related witnesses-prosecution proved
beyond doubt.

Appeal dismissed. (E-9)

List of Cases cited:

1. Munni Devi & ors. Vs St.of U.P.; 2020 (5) ALJ 653

2. Bhagaloo Lodh & anr. Vs St. of U.P., 2011 (13) SCC
206

3. Gangabhavani Vs Rayapati Venkat Reddy & ors.,
2013 (15) SCC 298

4. Laltu Ghosh Vs St. of W.B., AIR 2019 SC 1058

5. Md. Rojali Ali & ors. Vs. St. of Assam, AIR 2019 SC
1128

6. Ganeshlal Vs St. of Mah., (1992) 3 SCC 106

7. Kundula Bala Subrahmanyam & anr. Vs St. of A.P. ,
(1993) 2 SCC 684
(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present Criminal Appeal has been
preferred by the appellant against the judgment
and order dated 04.06.2003 passed in Session
Trial No.3 of 2002, arising out of Case Crime
No.241 of 2001, under Sections 302, 435, 427
888 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C., Police Station Aliganj, District Lucknow,
by Additional Sessions Judge (Fast Track Court
III) Lucknow, whereby the Additional Sessions
Judge (Fast Track Court III), Lucknow,
convicted and sentenced him in the manner
stated hereinafter :-

"(i) Under Section 302 I.P.C. for
rigorous imprisonment of life and a fine of
Rs.10,000/-;

(ii) Under Section 435 I.P.C. for five
years R.I. and a fine of Rs.5000/-;

(iii) Under Section 427 I.P.C. for one
year's R.I. and a fine of Rs.1000/-"

It was also directed that in default of
payment of fine, appellant would further
undergo imprisonment of three years, one year
and six months, respectively.

2. The prosecution case, in nutshell, is that
an FIR was lodged by informant-Nitin Jain
(P.W.2), at the Police Station Aliganj, District
Lucknow alleging that his father Vijay Kumar
Jain, who was Chief Engineer (Electric) in
B.S.N.L., was returning from his office to his
residence at Sector-D, B.S.N.L., Aliganj in his
official ambassador car bearing No. U.P.32 W
4341, which was driven by driver Saleem son of
Mohd. Shahid. The driver was pressurizing the
deceased to make him permanent in his job but
the deceased showed his inability as the same
could be done by the Department and in that
regard there was an order for transfer of a
permanent
driver.
The
driver
Saleem
apprehended that he would be removed and
other driver would be appointed and the said
driver was to join the next day on account of
which the driver Saleem after bringing the
deceased back from his office to the residence of
the deceased which was situated at Sector D,
Aliganj stopped the car at the side of house of
deceased and locked the doors of car from both
sides and poured petrol on the deceased from
plastic 'can' which he was carrying and set him
ablaze. The driver while committing the alleged
offence was shouting that he would not leave
him and threatened the people present there not
to come for rescue of deceased. On seeing the
car set ablaze and deceased locked inside, the
son (complainant), wife of deceased Smt.
Mamta Rani Jain (P.W.3), Smt. Inu Parihar,
Smt. Ambika Singh and with the help of other
persons took out deceased in a burnt state from
the car and after getting examined him in
Lifeline Hospital, Aliganj got him admitted in
Emergency in Medical College. The driver was
caught at the spot itself by the local residents.

3. On the basis of said written complaint
(Ex.Ka-1) being made by P.W.2 Amit Jain, son
of deceased, at Police Station Aliganj, District
Lucknow about the incident dated 12.07.2001,
FIR was registered immediately after the alleged
incident at 7.30 p.m. on the same day under
Sections 307, 435, 427 I.P.C. Later on, when the
father of the complainant succumbed to his
injuries, the case was converted from Section
307 I.P.C. to Section 302 I.P.C.

4. After investigation, charge sheet was
submitted against the accused Mohd. Saleem
under Sections 302, 435, 427 I.P.C. before the
Competent Court and the case was committed to
the Court of Sessions by the learned Magistrate.

5. On 15.01.2002 the learned Sessions
Judge, F.T.C.-III, Lucknow framed charges
against the accused Saleem for offence under
Sections 302, 435, 427 I.P.C. Accused denied
the charges and claimed to be tried.

6. The prosecution, in support of his case,
has examined P.W.1 Constable Vinod Kumar,
P.W.2 Nitin Jain, P.W.3 Smt. Mamta Rani Jain,
P.W.4 Dr. Prem Kumar, C.M.O. Safdarganj,
New Delhi, P.W.5 Abdul Haleem Khan, SubInspector, P.W.6 Ikrar Ahmed Khan, P.W.7
Suneel Goswami, P.W.8 S.N. Mishra, Chief
Engineer, B.S.N.L. P.W.9 A.S.I. Sovan Singh,
New Delhi, P.W.10 Surendra Pratap Singh, S.I.,
11 All. Saleem Vs. State of U.P.
889
P.W.11 R.R. Singh Rana, Station Officer
(Investigating Officer), P.W.12 Kifayat Ali,
Head Constable.

7. The statement of the accused was
recorded under Section 313 Cr.P.C., wherein he
denied the prosecution evidence and has stated
that he was wrongly charged in the instant case.
The accused/appellant Saleem has taken a plea
that deceased had undergone a surgery of brain
few days ago and was suffering from some pain,
due to which he often talked about committing
suicide. In his defence, the accused/appellant has
produced D.W.1 Suresh Kumar Gupta and
D.W.2 Mohd. Shafeeq.

8. Court has summoned Dr. Amit
Bhatnagar as C.W.1 and examined bed head
ticket which is annexed as Ex.C1 where the
deceased was admitted and died in the Medical
College.

9. P.W.1 Virendra Kumar, Constable, in
his deposition, has stated that on the day of
incident, i.e. 12.07.2001 he was posted as
Constable in Police Station Aliganj and he was
the scriber of the chik FIR under Crime No.241
of 2001, under Sections 307, 435, 427 I.P.C.
against accused appellant Saleem s/o Mohd.
Shahid. The aforesaid chik FIR was written by
him on the written complaint brought by Nitin
Jain and Vinod Agrawal and proved the same as
Ex.Ka-1. He next stated that he made the G.D.
entry of accused Saleem on 12.07.2001.

10. P.W.2 Nitin Jain, son of deceased, is
the eye witness of the alleged incident. He, in his
deposition, has supported the prosecution case
and stated that the accused appellant Mohd.
Saleem was the driver of his father. On the day
of incident at 6.00 p.m. the accused brought his
father in official ambassador car and parked the
same on the side. At that time, he along with his
mother went towards the car and saw the
accused appellant driver Mohd. Saleem picked
up the 'can' which was kept near his legs and
poured on his father and rushed outside litting
the car with match stick, as a result of which his
father along with car started to burn. The
accused appellant Mohd. Saleem locked the car
and shouted that he would not leave Vijay
Kumar Jain and also threatened complainant not
to come near the car else he would meet the
same fate. P.W.1 further deposed that somehow
he managed to open the door of the car by
breaking the back glass of car and took out his
father in a burnt state. Thereafter he took his
father to hospital. P.W.1 Nitin Jain, in his
deposition, further stated the reason for
committing the offence by accused Saleem was
that he was pressurizing his father (deceased) to
make him permanent but his father showed his
inability and the accused appellant apprehended
that he would be removed from the service.

11. P.W.3 Smt. Mamta Rani Jain, wife of
deceased, is also an eye witness of the incident.
She, in her deposition, states that the incident is
of 12.07.2001 at about 5.45 p.m. to 6.00 p.m. on
that date her husband (deceased) after attending
the department work at Patna returned by flight
and driver Saleem took the deceased from
airport to office and brought the deceased back
to home by official ambassador car. She further
deposed that while she was strolling with her
son Nitin Jain, unlike everyday on that date
official Ambassador car drove towards the side,
which created suspicion in her mind, so she
walked towards the side where the car went and
on reaching the spot she saw accused appellant
Saleem bending and taking out something from
near the seat of car; he opened the same and
threw it in the back. She next stated that she
rushed towards the car quickly, but till then the
accused got down from the car and threw the lit
matchstick on the car, due to which the car
started burning. She also deposed that the
accused shouted and threatened that anyone who
comes near him would be killed. She further
deposed that her son and the people of the
890 INDIAN LAW REPORTS ALLAHABAD SERIES
locality tried to save the deceased by opening
the back doors of the car, but they failed.
Thereafter, they broke the glass of the front door
by stone and opened the door from inside and
thereafter, wrapped the deceased in the blanket
and took him to the hospital. The people from
the locality caught hold of the accused. The
deceased was taken to the Lifeline Hospital in
departmental jeep and from there he was
referred to KGMC, Lucknow where he was
admitted in emergency ward and thereafter he
was taken to Delhi by flight. This witness also
categorically stated that in the hospital, her
husband told the police that Saleem had burnt
him to death for not making him permanent in
his job. On a query put to her in her crossexamination she stated that her husband did not
smoke cigarettes and her husband's clothes were
burnt which was taken off and were put in the
car by the people of Lifeline hospital and the
same were taken by police. On a query put to her
in cross examination she stated that she knew
the accused appellant Saleem for more than two
years that is why she didn't raise any suspicion
as to what he was pouring on the deceased while
sitting in the car.

12. Dr. Prem Kumar, C.M.O. Safdarganj,
New Delhi has been examined as P.W.4, who in
his deposition, stated that on 13.07.2001 he was
posted at Forensic Medicine Department at
Safdarganj, New Delhi and conducted the
autopsy of the dead body of Vijay Kumar Jain
on 13.07.2001 at 12.55 p.m. to 1.45 p.m. The
dead body was identified by Nitin Jain son of
Vijay Kumar Jain (deceased). During the time of
autopsy Dr. M.V. Shekhar, working in the same
hospital, was present along with him.

13. At the time of post mortem, following
general observations were made :-

(1) Rigor mortis was present on the
whole body of deceased.

(2) Post mortem staining was not
present as the body of the deceased was in burnt
condition.

(3) Both eyes were closed and cornea
on both sides were hazy. Conjuctiva on both
sides were congested.

(4) Scalp hair, both eyelids and
eyebrows of the deceased were found in burnt
and singe condition; genital hair and armpit
hair were not found in burnt condition.

(5) There was no clothes on the body
of the deceased.

Ante-Mortem External Injuries

1. Epidermal/ Dermo-Epidermal burn
injuries were present on all over the body except
patch over the upper back of chest and back of
neck. Patch over right glutal region and in
between glutal fields. Patch over the lower point
of abdomen and pubic area. Patch over the
dorsum of foot.

2. Line of redness, erythema present
on all the inverted area of burn. Peeling of skin
at places.

3. Approximate percentage of burn
injuries is 95%.

4. Old healed wound 7 cm long on the
top of the scalp (mid Parietal region) 14 cm
from upper border of right ear.

Internal Examination

Head: No extravasation of blood
underneath the scalp and brain was congested.

Neck & Spine: Mucosal congestion

Chest: Congestion in both lungs,
Mucosal congestion in trachea & bronchi,
Patent coronaries.

Abdomen: 100 ml liquid substance
found in stomach. Liver, spleen and both kidneys
were congested.

Pelvis: bladder was empty.

14. The reason of the death was assigned
due to shock as a result of ante mortem thermal
burn injuries. The time of the death of deceased
was shown to be approximately four and a half
hours before conducting post mortem. He further
11 All. Saleem Vs. State of U.P.
891
deposed that death of the deceased could have
occurred at 6.00 p.m. on 12.07.2001, but he
could not able to state the exact time of the
death.

15. P.W.5 Abdul Haqeem, Sub Inspector
has deposed before the trial court that on
13.07.2001 he was posted as Head Moharrir at
Police Station Aliganj, District Lucknow and on
that day informant Nitin Jain informed him on
telephone regarding the death of Vijay Kumar
Jain in New Delhi during the course of
treatment. On receiving the said information, he
converted the case registered in Case Crime
No.241 of 2001, under Sections 307, 435, 427
I.P.C. to Sections 302, 307, 435, 427 I.P.C. entry
of which was amended in G.D. no.34 dated
13.07.2001 in his own handwriting and proved
the same. In his cross-examination he deposed
that to carry out any amendment in the G.D. he
does not require any order and it would be
erroneous to say that he is not competent to
carry out any such amendment in G.D.

16. P.W.6 Ibrar Ahmed Khan in his
examination before the trial court has stated that
he was working in the B.S.N.L. department
where deceased Vijay Kumar Jain was posted.
He got the information about the death of Vijay
Kumar Jain from the people and also from
reading newspaper. He further deposed that
police seized the ambassador car and prepared
the memo of the same. He read the contents of
the same and put his signatures over it. On a
query put to him by court, he stated that he did
not see the car getting burnt.

17. P.W.7 Suneel Goswami has established
that police sealed and prepared the memo as
Ex.Ka-3 of burnt clothes and blanket in front of
him and he has proved the same by putting his
signature on the memo.

18. P.W.8 S.N. Mishra, Chief Engineer,
B.S.N.L., Patna in his deposition has stated that
he was posted at Lucknow on the day of
incident. He stated that on 13.07.2001 in front of
him the police has sealed the burnt ambassador
car and five litre plastic 'can' which was without
cap and in the bottom of which there was petrol
of little quantity. After sealing and preparing the
memo by police he signed the same.

19. P.W.9 Soban Singh, A.S.I. in his
deposition stated that he was posted at Police
Station Sarojini Nagar, New Delhi at the time
when the deceased succumbed to his injuries. He
stated that panchayatnama and identification
statement - Ex.Ka-8 was prepared by him in his
own handwriting which he proved in the Court
and thereafter sent the dead body of deceased for
post mortem. He further stated that he had
prepared cause of death in concise form in his
own handwriting and signature and proved the
same as Ex.Ka-9. Identification statement given
by Nitin Jain, son of deceased, and Narendra
Jain was prepared by him and proved Ex.Ka-10
and Ex.Ka-11 respectively. The letter requesting
C.M.O. Safdarganj Hospital for conducting post
mortem of the deceased was prepared by him
under his signature and proved the same as
Ex.Ka-12.

20. P.W.10 Suresh Pratap Singh, SubInspector, Chauki Para, Police Station Talkatora,
Lucknow in his deposition stated that on
12.07.2001 he was posted at Chauki Incharge,
New Galla Mandi, Police Station Aliganj,
Lucknow who conducted the initial investigation
of the incident. He stated that he reached the
place of incident and found an ambassador car
bearing No. U.P.32W4341 in a burnt condition
and huge crowd had gathered there and on
asking he was told by people there that two
police personnel, namely Surya Pal and Sudhir
Pal had taken the accused appellant Saleem who
was caught by the crowd. For supervision of the
burnt car he left two constable at the place of
incident and he himself went to bed no.1 of
emergency ward, K.G.M.C. where deceased
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Vijay Kumar Jain was admitted in a burn state.
He further stated that Vijay Kumar Jain
(deceased) gained consciousness and tried
narrating about the incident which was recorded
by him. Deceased in his statement before this
witness has specifically stated that "eS dkj ls ?kj
vk;k Fkk Mzkboj lyhe us xkMh eksM ij [kMh dh] eS le>k
ugh mlus vius ikl j[kk ihfi;k dk isVz~ksy Hkhrj vkSj mij
lhVks ij Mky fn;k] ekfPkl ls mlus vkx yxk nh] eS dkj
es tyus yxk] yksxks us fudkyk] lyhe eq>s ekjuk pkgrk
Fkk] mldh ukSdjh iDdh ugh"

21. He further stated that thereafter the
condition of the injured started deteriorating and
family members got busy in looking after Vijay
Kumar Jain and due to this reason he could not
record the statement of other witnesses. Thereafter
he went to police station to inquire from accused
Saleem where accused Saleem was present and his
statement was recorded in which he confessed his
guilt for recording the same under Section 164
Cr.P.C. and a report was sent to court. On
13.07.2001 he recorded the statement of scriber of
the FIR Virendra Kumar and thereafter went to
emergency ward KGMC and recorded the
statement of complainant Nitin Jain. No further
statement could be recorded as Vijay Kumar Jain
(deceased) was referred to New Delhi for
treatment and his relatives also accompanied him
to New Delhi. Then he went to the place of
incident where he recorded the statement of one
Inu Parihar and on her identification examined the
place of incident and prepared the site plan Ex.Ka14 and took into possession five litre plastic 'can'
having some amount of petrol in the bottom
without cap, ambassador car in burn condition and
sealed the items in front of witnesses and prepared
a report on the spot in his handwriting as Ex.Ka-7.
All these recovered items were deposited in
Malkhana of the police station which were entered
in the G.D. Thereafter he got the information
regarding the death of deceased through the
wireless, entry of which has been made in the
G.D., and after that the investigation was
transferred to one Shri R.R. Rana.

22. P.W.11 R.R. Singh Rana, Station
Officer (Investigating Officer), who did the final
investigation and filed the charge sheet in the
Court, in his deposition stated that on the date
12.07.2001 he was posted as Station Officer,
Police Station Aliganj, Lucknow and on that day
in his presence Crime No.241/2001, under
Sections 307, 433, 427 I.P.C. was registered
whose investigation was done by Sub Inspector
S.P. Singh. The information of the death of
Vijay Kumar Jain (deceased) in Delhi on
13.07.2001 during the course of treatment was
given to him by complainant Nitin Jain via
telephone and thereafter case was converted to
Sections 302 I.P.C. and the same was entered in
G.D. No.34 at time 18.25. He has proved the
statements of the witnesses recorded by him and
items collected including burnt clothes, blanket
etc. during course of investigation and thereafter
filed the charge sheet Ex.Ka-15. In his crossexamination he had deposed that immediately
after receiving the information of the incident he
reached the place and got to know that Vijay
Kumar Jain (deceased) was sent to Lifeline
hospital in a burnt condition and from there to
Medical College. He went to Medical College
and had seen the injured Vijay Kumar Jain there,
however, he could not say about the percentage
of burn on deceased, but he clarified that Vijay
Kumar Jain was almost burnt. He further
deposed that he saw the face of the deceased
which was burnt. However, he did not remember
whether face and neck were burn or not. He was
told by erstwhile Investigating Officer S.P.
Singh (P.W.10) that to take the statement of
injured information was conveyed, which was
denied by the doctor to record the statement. He
next deposed that he did not know whether any
intimation to the officer to record the statement
was given or not. He was also not aware about
the fact whether anyone came to record
statement or not. He also denied about having
any knowledge if doctor has recorded any
statement of deceased. During the investigation
he got to know that the accused used 'can' to
11 All. Saleem Vs. State of U.P.
893
pour petrol on the deceased sitting in the car and
also poured petrol on the car, however, nobody
saw as to how accused poured petrol. He had no
knowledge if the scalp hair, chest and stomach
of the deceased were burn or not as the doctor
did not let him see the dead body of deceased.
He was not told by anyone that deceased used to
smoke. He proved the recovery memo with
respect to clothes Ex.K-3, burn ambassador
Ex.Ka-6, however, he mentioned that he was not
scriber of the aforesaid memo and he did not
give any reason for the same. He next submitted
that he did not know about the working time of
the accused or whether the accused used to
commute by cycle and parked at the house of
deceased. He denied the suggestions that he did
not carry out investigation properly and filed the
charge sheet in a forged manner. He identified
the material produced in the court in a sealed
cover which included one woolen blanket, one
vest, shirt, pant, underwear, socks in a burnt
condition which were collected from the car of
the deceased, sealed by him. On a query put to
him, he states that blanket was put on the
deceased to cover him after he got burn, due to
which blanket was not burnt.

23. P.W.12 Kifayat Sharma, Head
Constable
(Driver),
Security
Headquarter,
Lucknow, in his deposition, stated that on
13.07.2001 he was posted as H.C.M.T. at Police
Lines, Lucknow. On the said date, he personally
inspected the car bearing No.U.P.32W4341
which was parked at B.S.N.L. Colony. He next
stated that the car was standing in burn
condition, the engine, steering, brakes (foot
brake and hand brake), clutch, horn, driving
meter, battery, light were all destroyed as a
result of burning of car, however, the tires were
in good condition. He further stated that it can
be said that if any person pours petrol to a
person sitting inside the car and set car ablaze,
then the car would be burn in such a way. The
report describing the condition of the car,
prepared and signed by him, was proved as
Ex.Ka-16.

24. The defence in support of its case has
examined D.W.1 Suresh Kumar Gupta, D.W.2 -
Mohd. Safeeq, C.W.1- Dr. Amit Bhatnagar.

25. D.W.1 Suresh Kumar Gupta, in his
deposition, stated that he knew accused Saleem,
who was working in B.S.N.L.. He heard about
the accused Saleem getting arrested from the
newspaper.

26. D.W.2 Mohd. Safeeq, in his deposition,
stated that he was not present at the place of
incident. He also heard about the accused
Saleem getting arrested in the newspaper. He
further stated that accused Saleem met him at
betel shop between 9.00 to 9.30 a.m. one day
prior to news of incident getting published in
newspaper where accused Saleem asked him to
help in getting job. He further stated that he had
knowledge of Saleem working in B.S.N.L. but
he was unaware of whose car he was driving.

27 C.W.1 Dr. Amit Bhatnagar posted at
K.G.M.C.
Surgery
Department,
Lucknow
submits that on 12.07.2001 he was posted as
Junior Resident, K.G.M.C., Lucknow and on
that day at about 6.45 pm V.K. Jain got admitted
in K.G.M.C., Lucknow with 95% burn and he
was given treatment by the team of Professor
M.S.D. Jaiswal, Dr. J.D. Rawat, Dr. Vivek
Kumar, Senior Resident, Dr. Arif Arya, Dr. O.P.
Yadav, Amit Sharma and myself. He stated that
the bed head ticket of the V.K. Jain (deceased)
was prepared by him which was produced in the
court in a sealed envelop. He next deposed that
at the time of admission in hospital, V.K. Jain
(deceased) was in his senses and was speaking
and answering to the questions asked. On the
day of admission, V.K. Jain told about the
incident which was entered on the bed head
ticket by this witness. He further stated that he
894 INDIAN LAW REPORTS ALLAHABAD SERIES
was the scriber of the bed head ticket and proved
the same as Ex.C1.

28. V.K. Jain (deceased) was shifted to
Safdarganj Hospital on 12.07.2001 which is also
mentioned on bed head ticket. In his crossexamination he stated that V.K. Jain (deceased)
got 95% burn, which comes in serious category
and in such type of cases chances of survival
depends on the type of treatment given to the
patient. V.K. Jain (deceased) was given
treatment by the team of Professor M.S.D.
Jaiswal and Dr. J.D. Rawat. The memo of the
statement of the deceased was sent to police and
Magistrate on the very same day whose carbon
copy is retained in bed head ticket. On a query
made to him, he failed to recall if there were
blisters present on the body of deceased or not,
however, he clarified that only in case of minor
burn, blisters are found on skin, however, in case
of serious burn, blisters are not formed. He next
stated that Vijay Kumar Jain (deceased) was
referred to Safdarganj Hospital, New Delhi at
the instance of Nitin Jain, son of deceased.
Thereafter he was taken to New Delhi by air. He
denied the suggestions that the statement of the
deceased was prepared by him on the directions
of family members of the deceased.

29. Learned trial Judge believed the
evidence of eye witnesses Nitin Jain (P.W.2) and
Mamta Rani Jain (P.W.3) as it is supported by
the medical evidence and dying declaration of
the deceased and found the appellant guilty for
the offences punishable under Sections 302, 435,
417 I.P.C. and accordingly convicted and
sentenced the appellant Saleem in the manner
stated in paragraph 1.

30. Aggrieved by the same, the appellant
has preferred the instant appeal.

31. Heard Shri G.S. Pandey assisted by
Ms. Anita Singh and Shri Arunendra, learned
A.G.A. for the State.

32. The learned Counsel for the appellant
argued that the appellant who was the driver of
the deceased has been falsely implicated in the
present case though the deceased committed
suicide into his car. The said defence was also
taken by the appellant in his statement under
Section 313 Cr.P.C. as he was suffering from
some mental disorder. He next argued that the
appellant after sprinkling petrol on the deceased,
who was inside his car, set ablaze him and he
remained standing at the place of occurrence,
which is unnatural conduct of the appellant
which shows that he was falsely implicated in
the present case by the family members of the
deceased. He urged that if the appellant wanted
to kill the deceased then he would have
murdered him at a lonely place when he was
being brought by him in his car as he returned
from out of station.

33. He next submitted that P.W.2 Nitin
Jain and P.W.3 Mamta Jain who are the eye
witnesses of the occurrence, their statements are
unworthy to be believed as they highly
interested and partisan witnesses. He further
argued that no independent witness of the
incident were either produced or examined by
the prosecution before the trial court in order to
support the prosecution case. Further, the dying
declaration, which has been recorded of the
deceased, no certificate has been issued by the
Doctor nor the deceased was in a fit mental state
for giving the dying declaration, as he was
rushed to Lifeline hospital and referred to
K.G.M.C. and thereafter was taken to Safdarganj
Hospital, New Delhi where he died on the same
day.

34. It was further argued that the dying
declaration which was written by C.W.1 Dr.
Amit Bhatnagar was on the bed head ticket
when the deceased was admitted in K.G.M.C.
He also submitted that the Investigating Officer
in his evidence before the trial court he has
admitted the fact that no certificate was taken by
11 All. Saleem Vs. State of U.P.
895
the doctor before recording the dying declaration
of the deceased, hence the dying declaration of
the deceased is unworthy and not at all a
relevant piece of evidence on the basis of which
the conviction of the appellant could be
sustained. There was no smell of kerosene or
petrol found in the post mortem report which
further belies the prosecution case. The spot
arrest of the appellant is also a false one as the
appellant did not make any effort to escape from
the place of occurrence after the incident. He
lastly argued that the appellant has been in jail
since 13.07.2001, i.e. for the last 20 years and 5
months, therefore, the conviction and sentence
of the appellant by the trial court is against the
evidence on record, hence the same be set aside
and the appellant be acquitted.

35. Learned A.G.A., on the other hand,
has opposed the arguments of learned Counsel
for the appellant and submitted that the
appellant has committed brutal murder of the
deceased who was the Chief Engineer, Electric
in BSNL and the appellant had gone to take
him from the airport as he had returned from
Patna after official work place of posting and
in the evening he was being brought by him to
his house from office in his official vehicle
no.UP-32 W4341 by the appellant who was
the driver. The appellant was pressurizing the
deceased to make him permanent but the
deceased showed his inability as the same
could be done only by the Department and in
that regard there was an order for transfer of a
permanent driver. The appellant apprehended
that he would be removed and other driver
would be appointed in his place and the said
driver was to join the next day on account of
which the
appellant after bringing the
deceased from his office to his house locked
the doors of car of appellant and poured
kerosene oil on his body and lit him on fire
and started shouting that he would not leave
him and on the alarm raised the appellant
threatened saying if any person comes to save
him then he would be also burnt alive. It was
submitted by him that soon after the incident
the appellant was arrested by the public at the
place of occurrence and handed over to the
police on 12.07.2001. The FIR of the incident
was lodged promptly at 7.30 p.m. by P.W.2
Nitin Jain - son of the deceased. He submitted
that the dying declaration of the deceased was
recorded when he was rushed to Lifeline
hospital to K.G.M.C. by C.W.1 Dr. Amit
Bhatnagar which was found on the bed head
ticket and his left thumb impression was taken
on the dying declaration by C.W.1 who was
examined by the trial court and he deposed
about the said fact before it. The deceased
died on 13.07.2001 at Safdarganj Hospital,
New Delhi on the same day when he was
taken from K.G.M.C. to Delhi by his son
P.W.2. He argued that the incident has taken
place at 6.00 p.m. in the evening in front of
the house of the deceased and the same was
also witnessed by his son P.W.2 and P.W.3
wife of deceased from whose evidence the
prosecution case finds support. The appellant
has given a false defence as the deceased has
committed suicide which is not corroborated
by any other evidence though he himself has
burnt the deceased in his car. He further stated
that the evidence of P.W.2 and P.W.3 cannot
be discarded by this Court simply because the
two eye witnesses happens to be the son and
wife of the deceased as there was no occasion
for them to falsely implicate the appellant who
is the real culprit of the incident.

36. We have examined the rival
contentions advanced by the learned Counsel for
the parties along with the impugned judgment
and order passed by the trial Court and also
perused the lower court record.

37. The Apex Court has expounded
definition of the dying declaration and its
condition which are required at the time of
accepting it as an evidence was considered by
896 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court in the case of Munni Devi & Ors. vs.
State of U.P.; 2020 (5) ALJ 653. Paras-33, 36
and 39 of the said judgment which are relevant
to note are reproduced hereunder:-

"33. ... 22. The legal position about the
admissibility of a dying declaration is settled by
this Court in several judgments. This Court in
Atbir v. Government of NCT of Delhi - 2010 (9)
SCC 1, taking into consideration the earlier
judgments of this Court in Paniben v. State of
Gujarat - 1992 (2) SCC 474 and another
judgment of this Court in Panneerselvam v.
State of Tamilnadu - 2008 (17) SCC 190 has
given certain guidelines while considering a
dying declaration:

1. Dying declaration can be the sole
basis of conviction if it inspires full confidence
of the Court.

2. The Court should be satisfied that
the deceased was in a fit state of mind at the
time of making the statement and that it was not
the result of tutoring, prompting or imagination.

3. Where the Court is satisfied that the
declaration is true and voluntary, it can base its
conviction without any further corroboration.

4. 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
corroborative.
The
rule
requiring
corroboration is merely a rule of prudence.

5. Where the dying declaration is
suspicious, it should not be acted upon without
corroborative evidence.

6. A dying declaration which suffers
from infirmities, such as the deceased was
unconscious and could never make any
statement cannot form the basis of conviction.

7. Merely because a dying declaration
does not contain all the details as to the
occurrence, it is not to be rejected.

8. Even if it is a brief statement, it is
not to be discarded.

9. When the eye-witness affirms that
the deceased was not in a fit and conscious state
to make the dying declaration, medical opinion
cannot prevail.

10. If after careful scrutiny the Court
is satisfied that it is free from any effort to
induce the deceased to make a false statement
and if it is coherent and consistent, there shall
be no legal impediment to make it basis of
conviction, even if there is no corroboration.

36. In the aforesaid judgment of
Sudhakar (Supra), the Hon'ble Supreme Court
has discussed the concept of dying declaration
in detail in paragraph 18 by considering the
case of Laxman vs. State of Maharashtra
reported in (2002) 6 SCC 710 which is quoted
below :-

"18. In the case of Laxman (supra), the
Court while dealing with the argument that the
dying declaration must be recorded by a
Magistrate and the certificate of fitness was an
essential
feature,
made
the
following
observations. The court answered both these
questions as follows:

"3. The juristic theory regarding
acceptability of a dying declaration is that such
declaration is 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 man is induced by
the most powerful consideration to speak only
the truth. Notwithstanding the same, great
caution must be exercised in considering the
weight to be given to this species of evidence on
account of the existence of many circumstances
which may affect their truth. The situation in
which a man is on the deathbed is so solemn and
serene, is the reason in law to accept the
veracity of his statement. It is for this reason the
requirements of oath and cross-examination are
dispensed with. Since the accused has no power
of cross-examination, the courts insist that the
dying declaration should be of such a nature as
to inspire full confidence of the court in its
truthfulness
and
correctness.
The
court,
however, has always to be on guard to see that
the statement of the deceased was not as a result
11 All. Saleem Vs. State of U.P.
897
of either tutoring or prompting or a product of
imagination. The court also must further decide
that the deceased was in a fit state of mind and
had the opportunity to observe and identify the
assailant. Normally, therefore, the court in
order to satisfy whether the deceased was in a fit
mental condition to make the dying declaration
looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit
and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be
said that since there is no certification of the
doctor as to the fitness of the mind of the
declarant,
the
dying
declaration
is
not
acceptable. A dying declaration can be oral or
in writing and any adequate method of
communication whether by words or by signs
or otherwise will suffice provided the indication
is positive and definite. In most cases, however,
such statements are made orally before death
ensues and is reduced to writing by someone like
a Magistrate or a doctor or a police officer.
When it is recorded, no oath is necessary nor is
the presence of a Magistrate absolutely
necessary, although to assure authenticity it is
usual to call a Magistrate, if available for
recording the statement of a man about to die.
There is no requirement of law that a dying
declaration must necessarily be made to a
Magistrate and when such statement is
recorded by a Magistrate there is no specified
statutory form for such recording. Consequently,
what evidential value or weight has to be
attached to such statement necessarily depends
on the facts and circumstances of each
particular case. What is essentially required is
that the person who records a dying declaration
must be satisfied that the deceased was in a fit
state of mind. Where it is proved by the
testimony of the Magistrate that the declarant
was fit to make the statement even without
examination by the doctor the declaration can
be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of
caution and therefore the voluntary and truthful
nature of the declaration can be established
otherwise.

39.
For
accepting
the
dying
declaration, the Hon'ble Supreme Court has
expounded the conditions which are necessarily
to be followed. In State of Gujarat v. Jayrajbhai
Punjabhai Varu reported in (2016) 14 SCC 152,
the Supreme Court held in paragraph nos. 15,
17, 19 & 20 as under :

"15.