# Sanjay Singh v. State of U.P

- **Citation:** (2022) 7 ILRA 781
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Appeal No. 1387 of 2013
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-singh-v-state-of-u-p-48843
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act,
1872-
Section
32-
The
dying
declaration of the deceased is very
natural,
cogent,
trustworthy
with
ring of truth as she has given a very
precise statement against the person
who set her ablaze. He has not
implicated any other in-laws in the
crime. This dying declaration has
been corroborated by the statement
of
P.W.10,
P.W3
and
also
by
statement of P.W.1.

Where the court finds the dying declaration
to be cogent, true and trustworthy and has
been
further
corroborated
by
other
evidence then the same can be solely relied
upon to convict the accused.
782 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Indian Evidence Act, 1872-
Section
154-
Hostile
Witness-
The
evidence of a hostile witness cannot be
thrown out, completely. It is settled law
that the evidence of a hostile witness
cannot be discarded in toto, whatever is
found in his/her evidence in corroboration
of the other evidence, the court can take
into
consideration
that
part
of
the
evidence of that witness.

Settled law that the evidence of a hostile
witness cannot be discarded as a whole and
relevant parts ofthe testimony of a hostile
witness, which are admissible in law, can be
used by the prosecution or the defence.

Criminal Law - Indian Penal Code, 1860Sections 302 & 304- The deceased died in
the hospital during the treatment after
four days, in the hospital, so it cannot be
said the offence travels only upto the
offence punishable under Section 304
instead of Section 302 of I.P.C. Hence this
contention of the learned counsel for the
defence has no force. In the postmortem
report it has also been noted by the
autopsy surgeon that deceased died "as a
result of ante-mortem burn leading to
septicemia
and
shock."
Hence
the
evidence available on record is sufficient
enough
to
prove
the
guilt
of
the
convict/appellant and the learned trial
court has rightly held him guilty and
sentenced him for the offence punishable
u/s 302 I.P.C.

As the deceased died after four days of the
occurrence because of septicaemia caused by
the burn injuries sustained by her, therefore the
present offence would be that of murder and
not culpable homicide not amounting to murder.
( Para 12, 14, 18)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-

## Text

7 All. Sanjay Singh Vs. State of U.P.
781
which has not been led in the present case.
We may also notice here at this stage the
proposition of law laid down in the case of
Gurpreet Singh Vs. State of Haryana,
(2002) 8 SCC 18 as follows:

"20...... This plea of alibi stands
disbelieved by both the courts and since the
plea of alibi is a question of fact and since
both the courts concurrently found that fact
against the appellant, the accused, this
Court in our view, cannot on an appeal by
special leave go behind the above noted
concurrent finding of fact".

20. In the present case, it has not been
explained who caused the contusions. The
deceased caught fire accidentally. It is also
not proved that the convict/appellant was
working in the field at the time of incident.

21. Thus, to sum up, in this matter, the
date and place of occurrence is not disputed.
The medical evidence shows that the
deceased died of ante-mortem burn injuries
and contusions were also found on the
cadaver. The convict/appellant did not prove
the fact that he was in the field at the time of
the incident. The statement of the convict that
deceased caught fire accidentally while
cooking food is not found reliable. The
deceased and convict/ appellant were residing
in the same house at the time of the incident,
then it was the duty of the convict/appellant
to explain how the deceased caught fire and
how contusions occurred on her body. Hence,
the learned trial court has rightly held the
convict /appellant guilty under Section 302
I.P.C. for causing the death of his wife Seema
Devi, and sentenced accordingly. There
appears no reason or ground to interfere with
the conviction and sentence recorded by the
trial Court.

22. In the result, the appeal has no
merit and is hereby dismissed.

23. The convict/appellant Vipin is in
jail. He shall undergo the sentence awarded
by the trial court.

24. Let the original record, received
from trial Court be sent back alongwith the
copy of this judgement, to the court
concerned for information and necessary
action.
----------
(2022)07ILR A781
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1387 of 2013

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

Counsel for the Appellant:
Mr. Jaikaran

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act,
1872-
Section
32-
The
dying
declaration of the deceased is very
natural,
cogent,
trustworthy
with
ring of truth as she has given a very
precise statement against the person
who set her ablaze. He has not
implicated any other in-laws in the
crime. This dying declaration has
been corroborated by the statement
of
P.W.10,
P.W3
and
also
by
statement of P.W.1.

Where the court finds the dying declaration
to be cogent, true and trustworthy and has
been
further
corroborated
by
other
evidence then the same can be solely relied
upon to convict the accused.
782 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Indian Evidence Act, 1872-
Section
154-
Hostile
Witness-
The
evidence of a hostile witness cannot be
thrown out, completely. It is settled law
that the evidence of a hostile witness
cannot be discarded in toto, whatever is
found in his/her evidence in corroboration
of the other evidence, the court can take
into
consideration
that
part
of
the
evidence of that witness.

Settled law that the evidence of a hostile
witness cannot be discarded as a whole and
relevant parts ofthe testimony of a hostile
witness, which are admissible in law, can be
used by the prosecution or the defence.

Criminal Law - Indian Penal Code, 1860Sections 302 & 304- The deceased died in
the hospital during the treatment after
four days, in the hospital, so it cannot be
said the offence travels only upto the
offence punishable under Section 304
instead of Section 302 of I.P.C. Hence this
contention of the learned counsel for the
defence has no force. In the postmortem
report it has also been noted by the
autopsy surgeon that deceased died "as a
result of ante-mortem burn leading to
septicemia
and
shock."
Hence
the
evidence available on record is sufficient
enough
to
prove
the
guilt
of
the
convict/appellant and the learned trial
court has rightly held him guilty and
sentenced him for the offence punishable
u/s 302 I.P.C.

As the deceased died after four days of the
occurrence because of septicaemia caused by
the burn injuries sustained by her, therefore the
present offence would be that of murder and
not culpable homicide not amounting to murder.
( Para 12, 14, 18)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-

1. Rajesh Yadav & anr. Vs St. of U.P. 2022 SCC
Online SC 150

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This Criminal Appeal has been
filed by the appellant against the judgment
and order dated 13/14.08.2013 passed by
Special Judge (E.C.) Act/ Additional
Sessions Judge, Court No.4, Rae Bareli in
Sessions Trial No.116 of 2007 (State Vs.
Sanjay Singh) arising out of Crime No.31
of 2007 under Section 498-A, 323, 504 and
302 of of Indian Penal Code,1860 (in short
I.P.C.) and Section 3⁄4 of Dowry Prohibition
Act (in short D.P. Act). Whereby the
convict/appellant has been held guilty and
sentenced under Section 498A, 302 of
I.P.C. and Section 4 of the D.P. Act, Police
Station Shivgarh, District Rae Bareli. The
convict has been awarded the following
sentences :-

Sl. No. Sections Sentences awarded
1.
Under
section
498-A
I.P.C.
Rigorous imprisonment of three years
coupled with a fine of Rs.5,000/- and in
default of payment of fine, six months
simple imprisonment.
2.
Under
section
302
I.P.C.
Life imprisonment coupled with a fine
of Rs.20,000/- and in default of
payment of fine, two years additional
imprisonment.
3.
Under
section 4
of
D.P.
Act.
Rigorous imprisonment of two years
coupled with a fine of Rs.5,000/- and in
default of payment of fine, three months
simple imprisonment.

2. The facts in short, necessary for
disposal of this appeal are as under:-

(i) A First Information Report (in
short FIR) was registered at Case Crime
No.31 of 2007, under Sections 498A, 323,
504, 307 of I.P.C. and Section 3⁄4 of D.P.
Act, Police Station Shivgarh, District Rae
Bareli, on the basis of a the written report
submitted by the complainant Ajeet Pratap
Singh. In the written report it was narrated
that elder sister of the complainant Manju
Singh was married to Sanjay Singh about
10 years ahead. His brother-in-law used to
harass and torture his sister soon after the
7 All. Sanjay Singh Vs. State of U.P.
783
marriage and used to say that her parents
had not given sufficient dowry and they
just show that they were rich people.
Sanjay Singh used to ask his sister to bring
a buffalo and a motorcycle, otherwise he
will not let her live with peace. One son
was born to his sister out of this wedlock.
Sanjay Singh started to live separately in a
house situated adjacent to his parents. After
this he started torturing and harassing his
sister more and pressurized her to bring a
buffalo and a motorcycle. When his sister
refused to accede to the demands he
frequently used to beat and torture her. Due
to this harassment and torture his sister
came to her parental house, about 5 months
before and started to live there. About one
month ahead, brother of her father-in-law
died, therefore, his sister went to his
matrimonial home Jagatpur. When she was
coming back, her mother-in-law and fatherin-law asked her to stay there and assured
that now Sanjay Singh has reformed
himself. On this she stayed there and
started to live with Sanjay Singh.

(ii) On 25.01.2007 he received a
phone call from village Ahasan Jagatpur
that Sanjay Singh has set ablaze Manju
after pouring Kerosene oil. On this the
complainant, his younger brother Sonu
Singh, cousin Santosh and many other
people of the village went to village Ahasan
Jagatpur and found that his sister was badly
burnt. The smell of kerosene oil was
coming out from her body. His sister Manju
told him that Sanjay Singh has set her
ablaze after beating and dousing with
kerosene oil. His sister was being carried
by Sonu Singh and Santosh Singh to
hospital in Bachhrawa. The condition of his
sister was very serious.

(iii) After registration of the FIR
investigation started. The dying declaration
of the deceased was recorded by Mr.
Piyush Srivastava, 'Naib Tehsildar' in the
hospital where the deceased was under
treatment. The deceased died during
treatment on 29.01.2007 in the hospital.
The written information of death was given
by the complainant at the concerned police
station (Exhibit Ka-18). After investigation
chargesheet was submitted in the Court
concerned against the convict/appellant
under Sections 498-A, 323, 504 and 302 of
I.P.C. and Section 3/4 of D.P. Act. The
Magistrate concerned took cognizance on
the chargesheet and committed the case to
the Sessions Court for trial. The Sessions
Court framed charges under sections 498A,
302 of I.P.C. and Section 3/4 of D.P. Act.
The convict/appellant denied the charges
and claimed to be tried.

(iv) The prosecution in order to
prove its case examined ten witnesses in
toto, which are as under:-

1. P.W.1 Sonu Singh brother of
the deceased.

2. P.W.2
Mabood
Khan
an
independent witness.

3. P.W.3 Santosh Singh cousin
brother of the deceased.

4. P.W.4 Dr. Y.N. Tiwari, who
conducted autopsy on the cadaver of the
deceased Manju Singh.

5. P.W.5 Smt. Kirti Singh a
witness from the family of accused.

6. P.W.6 Sub Inspector Arvind
Mohan Jaiswal, who investigated the
matter initially.

7. P.W.7 Sub-Inspector M. S.
Khan who conducted inquest of the dead
body and prepared 'Panchayatnama' and
relevant papers and sent the dead body for
postmortem.

8. P.W.8 Mr. Piyush Srivastava,
'Naib Tehsildar', who recorded the dying
declaration of the deceased.

9. P.W.9 Sub-Inspector Mr. R.P.
Singh who took over the investigation from
the I.O. Arvind Mohan Jaiswal.
784 INDIAN LAW REPORTS ALLAHABAD SERIES

10. P.W.10 Raja Ram Singh, the
uncle of the deceased who scribed the
written report upon the dictation of the
complainant Ajeet Singh.

(v) Apart from the above oral
evidence, documentary evidence has also
been proved by the prosecution, which are
as under:-

1.
Exhibit
Ka-1
postmortem
report.

2. Exhibit Ka-2 bed head ticket.

3. Exhibit Ka-3 discharge slip.

4. Exhibit Ka-4 prescription of
Naveen
Prathmik
Swasthya
Kendra,
Bachhrawa, Rae Bareli, of deceased.

5. Exhibit Ka-5 recovery memo
of the recover of burnt sari, blouse etc.
from the spot.

6. Exhibit Ka-6 recovery memo
of taking into custody half burnt sweater
and ash.

7. Exhibit Ka-7 Site plan of the
place of occurrence.

8. Exhibit Ka-8 carbon copy of
concerned G.D. , whereby the case was
altered under Section 302 of the I.P.C.

9. Exhibit Ka-9 Chick FIR.

10. Exhibit Ka-10 concerned
G.D.

11.
Exhibit
Ka-11
'Panchayatnama'.

12. Exhibit Ka-12 Police Form
No.13

13. Exhibit Ka-13 Police Form
No.379.

14. Exhibit Ka-14 letter to
C.M.O. for conducting postmortem.

15.
Exhibit
Ka-15
dying
declaration.

16. Exhibit Ka-16 chargesheet.

17. Exhibit Ka-17 written report.

18. Exhibit Ka-18 information of
the death of the deceased.

(vi)
After
completion
of
prosecution evidence the statement of
convict/appellant
was
recorded
under
Section 313 of the Code of Criminal
Procedure (Cr.P.C.), wherein he denied all
the facts and circumstances and stated that
the deceased was of blunt mind, she herself
set her ablaze. He has further stated that the
deceased herself set her ablaze. He was not
at the spot. Whatever allegations have been
made against him are false. His son Golu
lives with him, previously Golu used to live
with Manju, the deceased in her parental
home, but now the relatives of Manju sent
back Golu to him and asked his mother to
get him convicted.

No defence witness was produced
by
the
convict/appellant,
though
opportunity was given by the trial court.

(vii) After hearing the arguments
of both the sides and analyzing the
evidence available on record, the learned
lower
court
relied
upon
the
dying
declaration made by the deceased in the
hospital where she was admitted for
treatment
after
being
burnt
by
the
convict/appellant. The dying-decleration
was recorded by the 'Naib Tehsildar' on the
same day, on which incident occurred. The
dying
declaration
so
made
was
corroborated by the evidence of witnesses
of facts as well as by evidence of formal
witnesses. Medical evidence is consistent
with the dying declaration made by the
deceased. The learned trial court did not
find any reason to disbelieve the dying
declaration made by the deceased.

(viii) P.W.10 Raja Ram Singh,
uncle of the deceased who ascribed the
written report, dictated by the brother of the
deceased, Ajeet Singh. This witness has
proved the written report as Exhibit Ka-17.
It is noteworthy that Ajeet Singh the
complainant had died during the pendency
of the case. This witness has also proved all
the facts stated in the written report, as he
accompanied the complainant to the place
7 All. Sanjay Singh Vs. State of U.P.
785
of incident when the information was
received
in
his
village
about
the
unfortunate incident of burning of the
deceased. This witness has also proved the
recovery of the articles by the Investigating
Officer from the place of the incident.

(ix) The learned trial court also
relied upon the examination-in-chief of
P.W.1, the another brother of deceased who
in the cross-examination has turned hostile.
On the basis of evidence available on
record the learned trial court concluded that
prosecution has proved the charges framed
against
the
convict/appellant
beyond
reasonable doubt. The deceased was
tortured and subjected to cruelty for nonfulfillment of demand of a buffalo and a
motorcycle as dowry and ultimately she
was burnt alive dowsing with kerosene oil
on 25.01.2007 and she died of burn injuries
during treatment.

(x) Learned trial court also found
the convict/appellant guilty under Section
498-A and Section 4 of Dowry Prohibition
Act alongwith Section 302 of the I.P.C. and
the
trial
court
sentenced
the
convict/appellant to imprisonment as noted
above in paragraph No.1.

(xi) Being aggrieved of this
conviction
and
sentence
the
convict/appellant preferred this appeal.

3. Heard Shri Jaikaran, learned
counsel for the appellant and Ms. Smiti
Sahai, learned A.G.A. for the Staterespondent.

4. Learned counsel for the appellant
argued that learned trial court did not
appreciate the evidence in the right
preservative and erroneously held the
convict/appellant guilty and sentenced him.
All the allegations made in the FIR
regarding demand of dowry or setting
ablaze the deceased are false. The son of
the deceased was allegedly present at the
time of incident, but he has not been
examined by the prosecution. The motherin-law of the deceased allegedly carried her
for the treatment to the hospital, but she has
not been examined. The dying declaration
of the deceased was manipulated and
written on the behest of the complainant.
The case was registered initially under
Section 307 of I.P.C., but subsequently
converted under Section 302 of I.P.C. after
the death of the deceased. The deceased
died due to septicemia which developed for
want of proper treatment. Hence the
offence may not travel beyond the offence
punishable under Section 304 of I.P.C.
Hence this conviction should be converted
to Section 304 from Section 302 of I.P.C.
and
the
convict/appellant
should
be
sentenced to the period already undergone
and be released.

5. Contrary to it learned A.G.A.
submitted that there is sufficient evidence
available on record for convicting the
convict/appellant for the offence for which
he has been convicted and punished. She
submitted that the dying declaration of the
deceased is very natural and trustworthy as
she has implicated only the wrong doer and
none-else. The dying declaration has been
recorded by the 'Naib Tehsildar' on the day
of incident itself. There was no chance for
tutoring or manipulating.

6. P.W. 10 Raja Ram has proved the
written report and also the fact that
deceased
told
him
before
the
complainant and other persons who were
present there that she was burnt by
Sanjay Singh, her husband. This witness
has also proved the fact that she was
being tortured and harassed by the
convict/appellant
for
demand
of
a
Buffalo and a Motorcycle.
786 INDIAN LAW REPORTS ALLAHABAD SERIES

7. P.W.1 though turned hostile in the
cross-examination, but in examination-inchief he has fully supported all the facts
written in the F.I.R. P.W.3 Santosh Singh,
cousin brother of the deceased has also
supported very well the case of the
prosecution. Ms. Kirti Singh P.W.5 who is
the aunt of Sanjay Singh, the convict, has
also stated that she saw Manju in burnt
condition as she came out of her house in a
burning state. She has also stated that the
deceased Manju came to his maternal home
before 15 days of the incident, after hearing
the news of the death of her (P.W.5's)
husband. The deceased died due to burn
injuries
as
has
been
noted
in
the
postmortem report. Hence there is no error
or discrepancy in the impugned judgment
and order passed by the learned trial court.

8. Considered the rival submissions
and perused the original record as well as
the record of the appeal. The FIR which
was registered on the basis of written report
Exhibit Ka-17. The complainant (now
dead) has narrated that his real elder sister
Manju Singh was married to Sanjay Singh,
ten years back. Sanjay Singh used to torture
and beat his sister for demand of one
buffalo
and
a
motorcycle.
Due
to
unbearable torture his sister came to his
parental house five months before the
incident, but as the brother of father-in-law
of Manju namely Rajendra Singh died, so
his sister Manju went there to his
matrimonial home. When she was coming
back to his parental house her in-laws
asked him to stay there and told that Sanjay
Singh has reformed himself. On this
assurance, she stayed there. On 25.01.2007
at about 08:00 AM he received telephonic
call that Sanjay Singh firstly thrashed
Manju Singh and thereafter set her ablaze
after
dowsing
with
kerosene
oil.
Unfortunately the complainant died during
the pendency of the trial and his statement
could not be recorded in the trial court. But
the report has very well been proved by
P.W.10 Raja Ram Singh who is the uncle of
the deceased. He has stated before the trial
court that report was scribed by him upon
the dictation made by Ajeet Singh and
Ajeet Singh after hearing the same wrote
his name and address on the same.
Whatever was dictated by Ajeet Singh he
wrote in the written report. He further
stated that he accompanied Ajeet Singh
after getting the news of Manju being burnt
by Sanjay Singh on 25.01.2007. When he
reached at Ahasan Jagatpur he found Manju
seriously burnt and asked her about the
incident then she told that Sanjay Singh
firstly thrashed her, thereafter set her ablaze
after dowsing with kerosene oil. This
witness has also stated that whenever
Manju used to come to her parental house
she used to tell that Sanjay Singh tortured
and harassed her for one buffalo and a
motorcycle. This witness has also stated
that his statement was also recorded by the
Investigating Officer and he was also a
witness to the recovery of articles from the
place of incident. This witness recognized
her signatures on recovery memos Exhibits
Nos. Ka 5 & 6.

9. P.W.3 Santosh Singh, who is the
cousin brother of the deceased has also
supported very well the prosecution story.
He also accompanied the complainant to
the maternal house of the deceased where
the incident occurred, after getting the news
of the incident. He has stated in his
examination-in-chief
that
on
the
information received he alongwith Ajeet
Singh, Sonu Singh and Raja Ram Singh
went to the maternal home of Manju Singh
and found that mother of Sanjay Singh
(convict) was taking Manju in a burnt
condition on a Tanga, they all three stopped
7 All. Sanjay Singh Vs. State of U.P.
787
their motorcycle and asked Manju about
the incident then she told that Sanjay Singh
firstly beat her and thereafter set her ablaze
after dowsing with kerosene oil. Manju was
seriously burnt and telling about the
incident weepingly. Thereafter they took
Manju to Naveen Prathmik Swastha
Kendra, Bachhrawa, Rae Bareli from where
she was referred to District Hospital for
treatment and she died after three or four
days. Thus this witness has also supported
the prosecution case to the extent that
Manju Singh the deceased told Ajeet Singh,
Sonu Singh and Raja Ram Singh that she
was beaten and burnt by convict Sanjay
Singh.

10. Sonu Singh, P.W.1 is the real
brother of the deceased Manju Singh. He in
his examination-in-chief fully supported
the prosecution case, but cross-examination
was not made on the day of examinationin-chief. As the defence counsel moved the
adjournment application on the date on
which examination-in-chief was recorded.
The examination-in-chief of this witness
was recorded on 12.06.2008 and the crossexamination was made by the defence on
20.07.2009 after a period of more than a
year. In cross-examination so made, this
witness turned hostile and did not support
the prosecution version and whatever stated
by
him
in
his
examination-in-chief.
Therefore, with the permission of the Court
Additional District Government Counsel
examined the witness. The most important
witness of this case is P.W.8 Mr. Piyush
Srivastava, 'Naib Tehsildar', who recorded
the dying declaration of the deceased. The
dying declaration so recorded is Exhibit
Ka-15 on the record which reads as under:-

"vkt fnuk¡d 25@01@07 dks izkIRk
lwpuk ds vk/kkj ij ftyk vLirky jk;cjsyh esa
Jherh eatw flag iRuh lat; flag fu-
vlgutxriqj Fkkuk f'kox<+ ftyk jk;cjsyh ds
e`R;q iwoZ c;ku izkIr fd;k] tks fuEu izdkj gS%&

eSa eatw flag vkt lqcg vius ?kj ij
Fkh] ml le; esjs ifr ?kj ij Fks] mUgksaus igys
eq>ls yM+kbZ dh] vkSj yM+us ds ckn eq>s ekjk
ihVk vkSj ekjihV dj eq> ij feV~Vh dk rsy
Mkydj vkx yxk nh vkSj ?kj ls Hkkx x;sA esjs
ifr dk uke lat; flag iq= Hkxoku c['k flag
fu- xzke vlgutxriqj gSA esjs ifjokj esa lkl]
llqj esjs lkFk jgrs gSaA eq>s muls dksbZ f'kdk;r
ugha gSA esjh f'kdk;r esjs ifr ls gS] mlus gh eq>s
tyk;k gSA eq>s esjh lkl o xk¡o okyksa us cpk;k
vkSj ;gk¡ vLirky yk;sA"

11. This witness PW-8 has stated that
on 25.01.2007 he was posted as 'Naib
Tehsildar' (West) in Tehsil Sadar, Rae
Bareli. On that date, on the direction of the
then S.D.M. Sadar he went to record the
dying declaration of Smt. Manju Singh
wife of Sanjay Singh, resident of Ahasan
Jagatpur, Police Station Shivgarh, District
Rae Bareli. Before starting to record the
statement of Manju Singh, Dr. Rajendra
Sharma certified that Manju Singh is in the
state of giving statement, thereafter he
recorded the statement of Manju Singh.
Manju Singh stated that her husband
Sanjay Singh scuffled with her and beat
her, thereafter set her ablaze after dousing
with kerosene oil and ran away from the
house. Manju Singh also stated that she has
no complaint against her mother-in-law.
She has further stated that she was burnt by
her husband and her mother-in-law and
other people of the village saved her and
carried to hospital. This witness has further
stated that after recording of the statement
he read over the same to Manju Singh and
Manju Singh affixed her thumb impression
of right hand on the statement and this
witness has also signed on that. This
witness has further stated that doctor has
given fitness certificate after recording of
the statement also, the doctor signed on the
788 INDIAN LAW REPORTS ALLAHABAD SERIES
statement and put the seal of the hospital on
the same. This witness has proved the
dying declaration written in his handwriting
and under his signature as Exhibit Ka-15.
This witness has been cross-examined by
the defence counsel, but nothing adverse
could be brought out in his statement.
There is nothing on the record to show that
the dying declaration of the deceased was
manipulated or given at the behest of the
complainant. In the cross-examination this
witness
has
stated
that
among
the
attendants who were present near Manju
Singh when he reached, her mother-in-law
was also there. He ousted all the attendants
from the room before recording of the
statement of Manju Singh. In the presence
of the mother of the convict it was not
possible to tutor Manju Singh to give
statement against the convict Sanjay Singh.

12. The dying declaration of the
deceased
is
very
natural,
cogent,
trustworthy with ring of truth as she has
given a very precise statement against the
person who set her ablaze. He has not
implicated any other in-laws in the crime.
This
dying
declaration
has
been
corroborated by the statement of P.W.10,
P.W3 and also by statement of P.W.1.

13. The Investigating Officer P.W.6
Sub-Inspector Arvind Mohan Jaiswal has
also stated that when he recorded the
statement of the deceased in the hospital
she has stated that her husband used to
ask for a buffalo and a motorcycle as
dowry and when she opposed he used to
beat her and on the day of incident at
about 7:00 AM Sanjay Singh beat her and
set her ablaze dousing with kerosene oil.
Hence, there is no reason on the record to
doubt the veracity or truthfulness of the
dying declaration of the deceased Manju
Singh.

14.

Learned
counsel
for
the
convict/appellant argued that the trial court
has taken into consideration the statements
of hostile witnesses also, which is not
justified. But this argument of the defence
does not carry any weight because the
dying declaration of the deceased is very
well being supported by P.W.3 and P.W.10.
Further more, the evidence of a hostile
witness cannot be thrown out, completely.
It is settled law that the evidence of a
hostile witness cannot be discarded in toto,
whatever is found in his/her evidence in
corroboration of the other evidence, the
court can take into consideration that part
of the evidence of that witness.

15. In this regard the Hon'ble Apex
Court very recently in the case of Rajesh
Yadav and another Vs. Sate of U.P. 2022
SCC Online SC 150 held as under:-

"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
7 All. Sanjay Singh Vs. State of U.P.
789
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.

22. On the law laid down in
dealing with the testimony of a witness over
an issue, we would like to place reliance on
the decision of this Court in C. Muniappan
v. State of T.N., (2010) 9 SCC 567:

"81. It is settled legal proposition
that:

"6.
...
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 witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is found
to be dependable on a careful scrutiny
thereof."

(Vide Bhagwan Singh v. State of
Haryana, (1976) 1 SCC 389, Rabindra
Kumar Dey v. State of Orissa, (1976) 4
SCC
233, Syad Akbar
v. State
of
Karnataka, (1980) 1 SCC 30 and Khujji v.
State of M.P., (1991) 3 SCC 627, SCC p.
635, para 6.)

82. In State of U.P. v. Ramesh
Prasad Misra [(1996) 10 SCC 360: 1996
SCC (Cri) 1278] this Court held that (at
SCC p. 363, para 7) evidence of a hostile
witness would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon. A similar view has been reiterated by
this Court in Balu Sonba Shinde v. State of
Maharashtra [(2002) 7 SCC 543: 2003
SCC (Cri) 112], Gagan Kanojia v. State of
Punjab [(2006) 13 SCC 516: (2008) 1 SCC
(Cri) 109], Radha Mohan Singh v. State of
U.P. [(2006) 2 SCC 450: (2006) 1 SCC
(Cri) 661], Sarvesh Narain Shukla v.
Daroga Singh [(2007) 13 SCC 360: (2009)
1 SCC (Cri) 188] and Subbu Singh v. State
[(2009) 6 SCC 462: (2009) 2 SCC (Cri)
1106].

83. Thus, the law can be
summarised to the effect that the evidence
of a hostile witness cannot be discarded as
a whole, and relevant parts thereof which
are admissible in law, can be used by the
prosecution or the defence.

84. In the instant case, some of
the material witnesses i.e. B. Kamal (PW
86) and R. Maruthu (PW 51) turned hostile.
Their evidence has been taken into
consideration by the courts below strictly
in accordance with law. Some omissions,
improvements in the evidence of the PWs
have been pointed out by the learned
counsel for the appellants, but we find them
to be very trivial in nature.

85. It is settled proposition of law
that even if there are some omissions,
contradictions and discrepancies, the entire
evidence cannot be disregarded. After
exercising care and caution and sifting
through the evidence to separate truth from
untruth, exaggeration and improvements,
the court comes to a conclusion as to
whether the residuary evidence is sufficient
to convict the accused. Thus, an undue
importance should not be attached to
omissions,
contradictions
and
discrepancies which do not go to the heart
of the matter and shake the basic version of
the prosecution's witness. As the mental
abilities of a human being cannot be
790 INDIAN LAW REPORTS ALLAHABAD SERIES
expected to be attuned to absorb all the
details of the incident, minor discrepancies
are bound to occur in the statements of
witnesses."

Vide Sohrab v. State of M.P.,
[(1972] 3 SCC 751 : (1972) SCC (Cri) 819
: AIR 1972 SC 2020], State of U.P. v. M.K.
Anthony, [(1985) 1 SCC 505 : 1985 SCC
(Cri)
105],
Bharwada
Bhoginbhai
Hirjibhai v. Sate of Gujrat, [(1983) 3 SCC
217 : 1983 SCC (Cri) 728 : AIR 1983 SC
753], State of Rajasthan v. Om Prakash,
[(2007) 12 SCC 381 : (2008) 1 SCC (Cri)
411], Prithu v. State of H.P., [(2009) 11
SCC 585 : (2009) 3 SCC (Cri) 1502], State
of U.P. v. Santosh Kumar, [(2009) 9 SCC
626 : (2010) 1 SCC (Cri) 88] and State v.
Saravanan, [(2008) 17 SCC 587 : (2010) 4
SCC (Cri) 580]."

16. The argument of the learned
counsel that the son and mother-in-law of
the deceased who were allegedly present at
the time of incident have not been
examined by the prosecution which creates
doubt, is not tenable at all because it is a
choice of the prosecution to whom it wants
to produce to prove its case. The case of the
prosecution has very well been proved by
the witnesses of fact as well as by the
witness who recorded the dying declaration
of the deceased.

17.

Learned
counsel
for
the
convict/appellant very vehemently argued
that deceased was not treated medically
well, therefore she died, as she was not so
badly burnt as to die. So the offence can
travel only upto the offence punishable
under Section 304 of I.P.C. instead of
Section 302 of I.P.C.. This argument of the
defence counsel is also of no value. The
medical-examination report, Exhibit Ka-4
where the deceased was first examined in a
burnt condition, it has been noted that
superficial to deep burn was found on the
body and she was found 55 to 65 percent
burnt and referred to District Hospital for
treatment. In Exhibit Ka-2 which is 'bed-
head- ticket' of the deceased issued by Rana
Beni Madhav District Hospital Rae Bareli
it has been noted that 55 to 65 percent burn
injuries were present on the body of the
victim.

18. In the postmortem report
following ante-mortem injuries were found
:-

"Superficial to deep skin burn at
place over scalp, forehead, face, neck and
interior and posterior of Chest front and
back, upper part of abdomen front and
back both upper limbs. Line of redness
present at place"

The deceased died in the hospital
during the treatment after four days, in the
hospital, so it cannot be said the offence
travels only upto the offence punishable
under Section 304 instead of Section 302 of
I.P.C.. Hence this contention of the learned
counsel for the defence has no force. In the
postmortem report it has also been noted by
the autopsy surgeon that deceased died "as
a result of ante-mortem burn leading to
septicemia and shock." Hence the evidence
available on record is sufficient enough to
prove the guilt of the convict/appellant and
the learned trial court has rightly held him
guilty and sentenced him for the offence
punishable u/s 302 I.P.C. There appears no
ground and reason for interference in the
conviction and sentence recorded by the
trial court.

19.

The
appeal
is
dismissed,
accordingly.

20. The convict/appellant is already in
jail. He shall serve the sentence awarded to
7 All. Pushpa Devi Vs. State of U.P.
791
him by the trial court. Let the original
record received be sent back along with
copy of this judgment to the trial court for
information and necessary action.
----------
(2022)07ILR A791
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.07.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1689 of 2017
&
Criminal Appeal No. 1425 of 2017

Pushpa Devi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anil Kumar Srivastava, Sri Ram Bahadur,
Sri Yogesh Kumar Srivastava, A/R0050, Sri
Raghubeer Singh, Sri Noor Muhammad.

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying Declaration-This dying
declaration has not been challenged by
the counsel for the appellant- There is no
reason for us not to accept the dying
declaration and its evidentiary value
under Section 32 of Evidence Act, 1872.

Where the dying declaration is found to be
reliable and trustworthy and the same is also
not challenged, then the Court would accept the
said dying declaration and secure the conviction
of the accused solely on the basis of the dying
declaration.

Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 Part - I- The deceased
died due to septicemia after about 20
days. All these facts go to show that the
death occurred due to septicemia which
developed because of the setting her
ablaze the deceased which is corroborated
by oral testimony. Thus, the death has
occurred due to the act of Pushpa who has
been aided by the other co-accused and it
is a homicidal death- The offence would
be under Section 304 Part-I of IPC as (i)
the death occurred after 20 days, (ii) the
burns were only 36%, (iii) the death was
due to septicemia - The death caused by
the
accused
was
not
premeditated,
accused had no intention to cause death
of deceased, the injuries were though
sufficient in the ordinary course of nature
to have caused death, accused had no
intention to do away with deceased, hence
the instant case falls under the Exceptions
1 and 4 to Section 300 of IPC. While
considering Section 299 as reproduced
herein above offence committed will fall
under Section 304 Part-I- The offence is
not under Section 302 of I.P.C. but is
culpable
homicide
and,
therefore,
sentence of the accused- appellants is
reduced to the period of eight years with
remission under Section 304 Part-I of IPC.
The fine is reduced to Rs.2,000/- each.

Where the death is due to septicaemia, the
offence was not premeditated and
the
accused did not have the intention to commit
the murder of the deceased, the offence will
fall under Exceptions 1 and 4 of Section 300
IPC and will therefore be punishable under
Section 304 Part-1 of the IPC. (Para 14, 18,
19, 20, 24)

Criminal Appeal Partly Allowed. (E-3)

Judgements Case Law relied upon:-

1. Maniben Vs St. of Guj., 2009 (8) SCC 796

2. Chirra Shivraj Vs St. of A.P, 2010 (14) SCC
444

3. Crl. Appeal No.1438 of 2010 (Rama Devi @
Ramakanti Vs State of U.P.) dec. on 7.10.2017

4. Crl. Appeal No. 2558 of 2011 (Smt. Kanti &
anr. Vs State of U.P.) dec. on 1.2.2021