# Santosh v. State Of U.P

- **Citation:** (2016) 8 ILRA 506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-26
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-v-state-of-u-p-44342
- **Pages:** 16

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506 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 506
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1317 Of 2008
&
Criminal Appeal No.- 1268 Of 2008

Santosh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
Dilip Kumar, Bakhteyar Yusuf, Rajiv Gupta, S.V.Singh, Ashwini Kumar Awasthi, Anoop Trivedi, Ashok Kumar
Srivastava, D.S. Chauhan, Kuldeep Saxena, Manish Tiwary, Pankaj Kr. Shukla, Pankaj Sharma, Pawan
Bhardwaj, Pramod Bhardwaj, Rajeev Goswami, S.V.Goswami

Counsel for Respondent:
Govt. Advocate.

Legislation referred to Indian Penal Code, 1860 - Ss. 34, 302; Code of Criminal Procedure, 1973 - S. 313.

CHARGE AND SENTENCE IMPOSED BY TRIAL COURT :
Each of the three accused-appellants - Ali Ahmad, Zameel and Abdul Sattar - was convicted under Section
302 read with Section 34 of the Indian Penal Code by the Additional Sessions Judge, Court No. 2, Etawah in
S.T. No. 20 of 2000, arising out of Case Crime No. 337 of 1999, P.S. Kotwali, District Etawah, and sentenced
to life imprisonment with a fine of Rs. 5,000/- each, with a default stipulation of one year additional rigorous
imprisonment in case of non-payment of fine.

FACTS :
The prosecution case originated from a written First Information Report (Ext. Ka. 1) lodged by Mohd. Arif
(P.W. 1), son of the deceased, at P.S. Kotwali, District Etawah on 24.06.1999. The FIR was registered at 9.35
A.M. as Case Crime No. 337 of 1999 under Section 302 IPC. The motive disclosed in the FIR was a dispute
over construction of shops in a graveyard situated near an overhead water tank on the bye-pass road at
Etawah. Appellant Ali Ahmad had been constructing shops in this graveyard, assisted by the other two
appellants Zameel and Abdul Sattar. The City Magistrate, Etawah, issued a stay order on the construction. The
appellants suspected that the stay order was procured at the instance of the deceased Mohd. Israel (first
informant's father), who allegedly intrigued with Bashiruddin, the then Mutawalli (manager) of the graveyard.
On 23.06.1999 at 10.30 A.M., the appellants came to the saw mill of the deceased and warned him that he
had deprived them of their livelihood by getting the construction stopped and he would have to face
consequences.
On 24.06.1999 at approximately 8.30 A.M., the deceased Mohd. Israel was proceeding to his saw mill from his
residence on a scooter. He was being followed at some distance by his brother Mohd. Afzaal (P.W. 3, the star
eye-witness) and the latter's friend Chand on a motorcycle. When the deceased reached in front of Nafees
8 All. Santosh Vs State Of U.P.
507
Haji's National Road Lines Transport, the appellants, who had laid in ambush behind two trucks, suddenly
appeared on the scene accompanied by one unknown person. Abdul Sattar gave a kick blow to the scooter of
the deceased, stopping it, and exhorted Ali Ahmad and Zameel to kill him. Ali Ahmad and Zameel thereupon
fired upon the deceased using country-made pistols, causing him to fall to the ground. When Mohd. Afzaal
(P.W. 3) and Chand challenged the assailants, the appellants fired shots in the air and escaped from the
scene. Mohd. Arif (P.W. 1) arrived at the spot within a minute of the incident, having heard the sound of firing
from a nearby saw mill where he had gone to arrange labourers. The deceased was taken to the District
Hospital, Etawah in a Jeep by P.W. 3 and P.W. 1. On the way to hospital, the deceased reportedly told P.W. 1
that Zameel and Ali Ahmad had fired on him after Abdul Sattar stopped his scooter. The deceased expired
before reaching the hospital, being declared dead at the hospital.
Post-mortem examination was conducted on the body of the deceased Mohd. Israel on 24.06.1999 at 5.00
P.M. at District Hospital, Etawah by Dr. M.M. Arya (P.W. 2), who found three ante-mortem firearm injuries: (i)
Gunshot wound of entry 1.5 cm × 2 cm, thoracic cavity deep, right side of back, 19 cm from nipple, with
blackening and charring in 3 cm area; (ii) Gunshot wound of exit, front of chest, left, 3 cm below left nipple,
measuring 3 cm × 1.5 cm; (iii) Firearm wound 5 cm × 2 cm, skull deep, 5 cm above right eyebrow, lacerated,
with blackening in 1 cm area. The doctor opined that death was caused by shock and haemorrhage resulting
from the ante-mortem firearm injuries and that the injuries could have been caused around 8.30 A.M. on
24.06.1999.
Seven prosecution witnesses were examined: P.W. 1 Mohd. Arif (first informant and son of deceased); P.W. 2
Dr. M.M. Arya (proved post-mortem report Ext. Ka. 2-A); P.W. 3 Mohd. Afzaal (brother of deceased and star
eye-witness, proved occurrence); P.W. 4 Head Constable Sobaran Singh (proved Check FIR Ext. Ka. 3 and GD
entry Ext. Ka. 4); P.W. 5 Harshvardhan Nagaich, first Investigating Officer (proved site plan Ext. Ka. 5 and
memo of simple and blood-stained soil Ext. Ka. 6); P.W. 6 S.S.I. Vikramjeet Singh, second Investigating
Officer (took over on 21.07.1999 and filed charge sheets Ext. Ka. 6 and Ka. 7); P.W. 7 Constable Chiranji Lal
(proved inquest report Ext. Ka. 8 and ancillary papers Ext. Ka. 9 to 12). No defence evidence was led. The
appellants in their statements under Section 313 Cr.P.C. denied their involvement and claimed false
implication at the instance of and in consultation with Bashiruddin.

CONTENTIONS OF THE APPELLANTS :
(i) None of the prosecution witnesses of fact actually witnessed the occurrence; all witnesses are interested,
partisan or close relatives of the deceased and their testimony is wholly unreliable.
(ii) None of the prosecution witnesses of fact has been named as a witness in the inquest report.
(iii) The theory that the deceased narrated the incident to P.W. 1 (his son) and P.W. 3 (his brother) on the
way to hospital, identifying the appellants as the assailants, is an afterthought and a result of deliberation:
given that the post-mortem report reveals that the heart and lungs of the deceased were lacerated causing
massive haemorrhage, the deceased could not have been in a position to utter a single word after sustaining
such injuries.
(iv) The investigation is riddled with laches and the testimony of witnesses is full of contradictions; the
prosecution case does not inspire confidence and no conviction can be based upon it.

HELD :
(i) Quality of testimony of solitary eye-witness - Primacy of quality over quantity - It is the
quality of testimony of a witness that gets primacy and not its quantity. The testimony of a solitary eyewitness, after cautious appraisal of facts and circumstances of the case, if found to be based on solid
consistency intensifying its creditworthiness and proving the occurrence unambiguously, is sufficient to sustain
a conviction. In the present case, the testimony of P.W. 3 Mohd. Afzaal, who was present on the spot at the
time of the incident at a distance of 20-25 paces from the deceased, is found to be consistent, clinching and
wholly reliable. He described every detail of the incident in his examination-in-chief and these details stood
the test of cross-examination without any material contradiction or adverse circumstance having surfaced. He
demonstrated the physical position of the deceased at the time of the attack (prostrate, face down, one leg
508 INDIAN LAW REPORTS ALLAHABAD SERIES

entangled in the scooter) in court, a detail that is self-explanatory and corroborates his actual presence at the
spot. His testimony carries ample weight and is sufficient to sustain the conviction of the appellants.
(ii) Testimony of a relative of the deceased - Not inherently unreliable; not to be treated as
interested witness without proof of malafide - The mere fact that a witness is a close relative of the
deceased does not, by itself, render his testimony unreliable or tainted. A relative who happens to be a
natural witness of the incident cannot altogether be regarded as an 'interested' witness so as to discard his
testimony. The settled legal position is that unless it is specifically shown that the witness is directly interested
in securing the conviction of the accused and is acting with malafide intent or bias against the appellants, the
relationship of the witness to the victim alone will not suffice to render his testimony wholly unreliable. In the
present case, no evidence or circumstance has been brought on record to establish that P.W. 3 Mohd. Afzaal
bore any grudge or malafide against the appellants or was otherwise motivated to falsely implicate them and
spare the real culprits. The contention that his testimony is tainted by reason of relationship is accordingly
rejected. [Relied upon: Gurjit Singh alias Gora v. State of Haryana, (2015) 2 SCC (Cri) 624]
(iii) Dying declaration / statement of deceased to witnesses - Even if excluded, does not affect
conviction based on eye-witness account - Even if the portion of the testimony of P.W. 1 and P.W. 3 to
the effect that the deceased Mohd. Israel told them on the way to hospital that the appellants had fired on
him after Abdul Sattar stopped his scooter - is excluded from consideration (on the basis of the medical
argument that a person with lacerated heart and lungs could not have spoken) - it has no adverse impact
upon the prosecution case. This is because the occurrence has been independently, consistently and reliably
proved by the direct eye-witness account of P.W. 3 Mohd. Afzaal, who personally witnessed the entire incident
from a distance of 20-25 paces. The dying declaration-like narration is not the sole plank of the prosecution
case and its exclusion does not create any infirmity in the proof of the occurrence.
(iv) Non-mention of prosecution witnesses in inquest report - Not fatal to prosecution case -
The absence of the names of the prosecution witnesses of fact (P.W. 1 and P.W. 3) from the inquest report
does not by itself render the prosecution case doubtful or falsify the testimony of these witnesses. The inquest
report (Ext. Ka. 8) was proved by P.W. 7 Constable Chiranji Lal and was found to be genuine, innocuous and
complete in all material particulars, disclosing the case crime number, sections of IPC, and the fact that the
inquest was completed around 11.00 A.M. on 24.06.1999. Non-mention of witness names in the inquest
report is not a ground sufficient to discredit the consistent, cogent and reliable testimony of the eye-witness.
(v) Motive - Established from FIR; corroborates prosecution case - The motive for the crime is
clearly established from the FIR itself. The appellants suspected that the City Magistrate's stay order on the
construction of shops in the graveyard was procured at the instance of the deceased Mohd. Israel. On
23.06.1999, the day preceding the murder, the appellants had visited the saw mill of the deceased and openly
warned him that he had deprived them of their livelihood and would have to face consequences. This prior
threat, followed by the murder the very next morning in a pre-planned ambush, establishes the motive and
the pre-meditation of the appellants. While motive loses its independent significance in the presence of direct
eye-witness testimony, its establishment strengthens the prosecution case and negatives the theory of false
implication.
(vi) Medical evidence - Consistent with ocular account; confirms firearm injuries at relevant
time - The post-mortem report (Ext. Ka. 2-A) proved by Dr. M.M. Arya (P.W. 2) discloses three ante-mortem
firearm injuries on the body of the deceased, including a gunshot wound of entry with blackening and
charring at the back of the right side of the chest (indicating firing at close range) and a lacerated firearm
wound above the right eyebrow with blackening. The doctor's opinion that these injuries could have been
caused around 8.30 A.M. on 24.06.1999 by firearm was never challenged by the appellants in crossexamination. The nature and location of the injuries are consistent with the manner of assault described by
P.W. 3. The medical testimony accordingly corroborates the ocular account of the incident.
(vii) FIR - Prompt; not ante-timed; consistent with inquest and investigation papers - The FIR
was lodged at 9.35 A.M. on 24.06.1999, barely about an hour after the incident which occurred at 8.30 A.M.
The FIR is prompt, consistent in its details, and contains no hallmarks of ante-timing or deliberation. The
inquest report (Ext. Ka. 8) was completed at 11.00 A.M. on the same day and contains the case crime number
8 All. Santosh Vs State Of U.P.
509
and relevant details in consistent ink and handwriting, establishing that the FIR pre-dated the inquest. No
circumstance or witness testimony suggests that the FIR was lodged after the inquest report was prepared.
The investigation was fair and upto the mark; the site plan (Ext. Ka. 5) was prepared at the spot in the
presence of P.W. 1 and P.W. 3; and the blood-stained soil, simple soil and blood-stained clothes of the first
informant were properly seized and proved.

RESULT :
All Criminal Appeals dismissed as devoid of merit. The judgment and order of conviction dated 26.09.2006
passed by the Additional Sessions Judge, Court No. 2, Etawah in S.T. No. 20 of 2000 convicting the appellants
under Section 302 read with Section 34 IPC and sentencing each of them to life imprisonment with fine of Rs.
5,000/- is upheld. Appellants Ali Ahmad and Zameel, already in jail, shall serve out their remaining sentences.
Appellant Abdul Sattar, who was on bail, has had his bail bond cancelled and sureties discharged; he shall be
taken into custody forthwith to serve out his remaining sentence. A certified copy of this order shall be sent to
the concerned Trial Court for necessary information and follow-up action.

Cases Referred:
Gurjit Singh alias Gora and Another v. State of Haryana, (2015) 2 SCC (Cri) 624 - Criminal
Appeal No. 519 of 2010 (SC).

(Delivered by Hon'ble Bala Krisnha Narayana, J.)

1. Since both the aforementioned criminal appeals arise out of the same judgement and
order they are being heard and decided together by a common judgment.

2. Criminal appeal no. 1317 of 2008 has been preferred by Santosh while criminal appeal
no. 1268 of 2008 has been filed by Smt. Kamla Devi against the judgement dated 15.02.2008 and
order dated 16.02.2008 passed by Additional District & Sessions Judge, Court No. 3, Mathura in
Sessions Trial no.422 of 2005 ( State Vs. Santosh and two others ) arising out of case crime no. 18
of 2005, under Sections 498A, 304B, 316, 201 IPC and Section 3/4 D.P.Act, P.S. Raya, District
Mathura by which the appellants have been convicted under Section 3/4 D.P.Act, 498A and 304 B
IPC and sentenced to two years imprisonment and fine of Rs. 1000/- each under Section 3/4
D.P.Act, two years rigorous imprisonment and a fine of Rs. 1000/- each under Section 498A IPC
and imprisonment for life under Section 304B IPC. All the sentences were directed to run
concurrently. It was further provided that in case the appellant committed default of payment of
fine they shall be liable to one month additional imprisonment on each count.

3. The facts of the case lie within a very narrow compass. Complainant Devi Prasad lodged
a written report Ex. Ka-1 at P.S. Raya, District Mathura on 30.01.2005 at about 22.10 hours stating
therein that he had got his daughter Madhuri married to Santosh Kumar son of Yaadram, r/o Karav
on 22.04.2000 and he had spent about Rs. Two Lakhs in the marriage of his daughter and given
dowry according to his status and financial means, however her husband Santosh, mother-in-law
Smt. Kamla Devi and Sister in law Smt. Guddi were not satisfied and they were putting pressure
upon his daughter Madhuri to ask her father to pay Rs. 50,000/- as additional dowry. After the
marriage, they started torturing his daughter Madhuri for non fulfillment of their additional demand
of dowry of Rs. 50,000/- cash. With a view to settle the matter amicably the dispute was repeatedly
510 INDIAN LAW REPORTS ALLAHABAD SERIES

referred to "panchayats" held in Karav village and in Gupta Colony and the complainant had
assured that he will fulfill the demand and had further told his daughter that she had no option but
to live with her husband as she was destined to be tortured in her matrimonial home. It was also
stated in the written complaint that on 29.01.05 at about 11a.m.-12p.m. Santosh Kumar- husband,
Smt. Kamla Devi-mother in law and Smt. Guddi-sister in law of his daughter Madhuri had
attempted to commit her murder by pouring kerosene oil on her and setting her ablaze as a result of
which she was severely burnt and under the pressure of the villagers they had taken her for
treatment to Swarna Hospital, Mathura and when the managent of the hospital informed him about
the incident they had run away from there and got his daughter admitted in S.N.Hospital, Agra,
where her treatment was going on. Before the death of the victim, the Doctor had got her dying
declaration recorded before the City Magistrate Ashok Kumar Agarwal.

4. On the basis of the aforesaid written complaint case crime no. 18 of 2005 under Section
498A, 307 IPC and Section 3/4 D.P.Act was registered on 30.01.2005 at 22.10 hours against
Santosh, Smt. Kamla Devi and Smt. Guddi. Complainant's daugther Smt. Madhuri died on
13.02.2005 at about 8.40 a.m. during treatment where upon the case was converted to one under
Section 304B IPC. The Investigating Officer of the case prepared the inquest report and send the
dead body of the deceased for post mortem and after collecting the relevant documents and
evidence submitted charge sheet under Sections 498A, 304B, 316, 201 IPC and Section 3/4
D.P.Act against husband Santosh Kumar, mother in law Smt. Kamla Devi and sister in law Smt.
Guddi before the C.J.M. Mathura who after complying with the mandatory requirement of Section
207 Cr.P.C.submitted the case to the Court of Sessions by the committal order dated 28.07.2005 for
trial of the accused from where it was made over to the Court of Additional District and Sessions
Judge, Court No. 3 Mathura and registered as S.T. No. 422 of 2005. Charge was framed against all
the accused on 02.09.2005 under Section 498A, 304BIPC and Section 3/4 D.P.Act. The accused
denied the charge and claimed trial. The prosecution in order to prove the charges framed against
the accused examined as many as nine witnesses, namely, PW-1 Devi Prasad, PW-2 Dr. A.P.Singh,
PW-3 Ratan Lal, PW-4 Dr. Rahul Sah, PW-5 Ashok Kumar Agarwal, PW-6 Dr. R.L.Sharma, PW7 Dr. A.A.Khan, PW-8 Vipin Kumar Mishra and PW-9 Anendra Singh. The documentary evidece
adduced by the prosecution has been referred to and dealt with in detail by the trial judge in the
impugned judgement and the same need not be reproduced. Sri Santosh in his statement recorded
under Section 313 Cr.P.C. denied the prosecution case and apart from the alleging false implication
stated that at the time of the incident he was not present in his house and as soon as he got
information of the occurrence, he reached his house and took his wife Madhuri to the hospital for
treatment. Appellant Kamla Devi apart from denying the prosecution case further stated that she
had been living separately from her son Santosh and she is not aware about the circumstances
under which the incident had taken place.

5. After considering the submissions made by learned counsel for the parties before him
and scanning the evidence on record learned Additional District & Sessions Judge, Court No.3
Mathura convicted the accused Santosh and Smt. Kamla Devi and awarded them the aforesaid
sentences. Smt. Guddi was however acquitted of all the charges.
8 All. Santosh Vs State Of U.P.
511
6. Learned counsel for the appellant has assailed the conviction of the appellants recorded
by the trial court and the sentence awarded to them on the ground that the only prosecution witness
PW-1 Devi Prasad, the complainant of this case and the father of the deceased Madhuri having
failed to support the prosecution case during the trial and declared hostile, the appellant's
conviction solely on the basis of the dying declaration of the deceased which neither inspires any
confidence nor stands corroborated from any other evidence on record cannot be sustained. Even
otherwise the victim Madhuri who was admitted to the hospital with hundred percent burn injuries
could not have been in a fit mental condition to give her dying declaration. He further submitted
that even if the dying declaration of the deceased is accepted and the facts stated therein are
believed to be gospel truth there being no whisper of any allegation in her dying declaration about
any demand of dowry from her or her parents or her being tortured or treated with cruelty for non
fulfillment of any demand of dowry and there being no other reliable evidence on record, even
remotely indicating that there was any demand of dowry either from the deceased or her father or
that she was tortured or treated with cruelty on account of non fulfillment of demand of dowry soon
before her death, the appellant's conviction under Section 304B, 498A and 3/4 D.P.Act cannot be
sustained and is liable to be scored out. He next submitted that it is evident from the bare reading of
the dying declaration of the deceased that the incident was neither premeditated nor preplanned.
Appellant was provoked by his mother Smt. Kamla Devi on the fateful day when he had returned to
his house after purchasing "ghee" for preparing "ladoos", his mother taunted him by saying that he
had given "ladoos" to eat to his wife alone and not to her on which the appellant Santosh picked up
a quarrel with his mother Smt. Kamla Devi and greatly enraged shouted that he was going to finish
her and sprinkled keresene oil on his wife while his mother Smt. Kamla Devi caught hold of her
and set her ablaze and thereafter he took her to his field where he tried to burn her with cow dung
cakes, thereafter he and his sister Smt. Guddi took her to the hospital in Agra, although the
Investigating Officer had failed to locate either the field of appellant Santosh, where the deceased
had been allegedly taken by her husband after being set on fire inside the house for burning her
further with cow dung cakes nor he could find any burnt or half burnt cow dung cakes. It appears
that the mother in law of the deceased Madhuri used to taunt her son whenever he did anything for
his wife and alleged her neglect by him and fed up with her persistent nagging and bickerings
which had shattered the peace of his house and totally ruined his marital life, appellant Santosh lost
his equilibrium on the date of the incident and committed the offence in a fit of rage with the object
of putting to an end his mother's constant bickerings and hence under the facts and circumstances
of the case, the offence if any committed by the appellants does not travel beyond Section 304(1)
IPC.

7. Per contra Sri Sagir Ahmad learned AGA appearing for the State of U.P. submitted that
the dying declaration in this case has been recorded in accordance with law and the very fact that
the deceased remained alive for 15 days after the incident and died after recording of the dying
declaration, is in itself material evidence showng that her condition, notwithstanding her having
received hundred percent burns was not overtly critical or precarius when her dying declaration
was recorded.
512 INDIAN LAW REPORTS ALLAHABAD SERIES

8. He further submitted that doctrine of dying declaration is enshrined in the legal maxim
"Nemo moriturus proesumitur mentiri" which means a man will not meet his maker with lie in his
mouth and hence the trial judge did not commit any error or infirmity in convicting the appellants
on the basis of the dying declaration of the deceased. The impugned judgement is based upon
relevant considerations and the finding guilt recorded therein is supported by cogent evidence and
the same warrants no interference by this Court. The appeals lack merit and are liable to be
dismissed.

9. We have heard the learned counsel for the parties and perused the entire lower court
record.

10. Before proceeding to examine interalia the issues regarding reliability and veracity of
the dying declaration of the deceased and whether the conviction of the appellants recorded under
Sections 3/4 D.P.Act, 498A and 304B IPC on the basis of the dying declaration of the deceased
alone can be sustained, we consider it appropriate to have a glance at evidence on record and the
various pronouncements on the interpretation of Section 32 of Evidence Act which provides for
admission of dying declaration in evidence.

11. The only witness of fact PW-1 Devi Prasad, complainant and the father of the deceased
Madhuri examined on behalf of the prosecution to prove the charges framed against the accused
failed to support the prosecution case. PW-1 Devi Prasad in his examination in chief stated that the
marriage between Santosh and his daughter Madhuri was solemnized on 23.04.2000 in which he
had spent about Rs. Two Lakhs. Her husband, mother in law and sister in law of his daughter,
namely, Santosh, Smt. Kamla Devi and Smt. Guddi were fully satisfied with the dowry given by
him to them at the time of marriage and Santosh, Kamla Devi and Guddi had not committed the
murder of his daughter Madhuri on 29.01.2005 between 11-12 p.m. by pouring kerosene oil on her.
A hotel owner had informed him that his daughter has been burnt to death and after receiving the
aforesaid information he had rushed to S.N.Hospital where his daughter was being treated after
being admitted there by her husband Santosh. He further stated that in the hospital he had heard
that dying declaration of his daughter Madhuri has been recorded and he had lodged the written
report Ex.Ka-1 against the husband, mother in law and sister in law of h is daughter at the behest of
the villagers. His daughter had died in the hospital after fifteen days of the incident. He admitted
his signatures on the inquest report of his deceased daughter Ex. Ka-2.

12. On the request of the prosecution PW-1, was declared hostile and cross examined by
the prosecution with the permission of the Court. PW-1 in his cross examination by the prosecution
admitted that before his daughter had died a demand of Rs. 50,000/- cash as additional dowry was
made, however in the same breath he denied that any demand of additional dowry of Rs. 50,000/-
cash was made by the accused.

13. PW-2 Dr. A.P.Singh, Senior Specialist Women Hospital, Agra who had conducted the
post mortem of the dead body of the deceased on 12.09.2005 at about 9.00 p.m. and prepared the
post mortem report noted following ante mortem injuries on the cadaver of the deceased :-
8 All. Santosh Vs State Of U.P.
513
"1.Body examined after surgical dressing superficial to deep burn with infected
lesions all over the body. Hair signed.

2.Cut open present on medial side of Rt upper arm.

3.Cut open present on medial side of Rt ankle".

14. He further testified that the deceased had died due to burn injuries and proved the post
mortem report of the deceased Ex. Ka-3. In his cross examination he admitted that although in the
post mortem it is stated that the body of the deceased was totally burnt but the percentage of the
burn was not mentioned.

15. PW-3 Ratan Lal Saraswat, who was posted as Pharmacist to S.N.Medical College,
Agra on 29.01.2005 testified that on the date of the incident at about 5.50 p.m. Smt. Madhuri was
admitted in the hospital with severe burn injuries and she was medically examined by Dr.
A.A.Khan. He proved the medical examination report of the deceased prepared on 29.01.2005 Ex.
Ka-4.

16. PW-4 Dr. Rahul Shah testified that deceased was admitted to the hospital with hundred
percent burns on 29.01.2005 and treated there till her death on 12.02.2005 at 9.00 p.m.. He proved
the treatment report of the deceased which was prepared by his subordinate doctors Ex. Ka.5 as
well as the progress report records relating to her treatment between 29.01.2005 and 11.02.2005 as
Ex. Ka-6, Ka-7 and Ka-8. PW-4 also testified that the deceased Madhuri was able to speak during
the period when she was under his treatment. Sri Ashok Kumar Agarwal Additional City
Magistrate before whom dying declaration of the deceased was recorded, was examined by the
prosecution as PW-5. He in his statement made before the Court on oath stated that the dying
declaration of Madhuri wife of Santosh was recorded on 30.01.2005 at 9.00 a.m., she had given her
statement in full consciousness and without any pressure. Before her statement was recorded
certificate regarding her mental fitness to give her statement was obtained by him from the doctor.
The condition of the victim during the recording of her statement also had remained stable. Thumb
impression of her right feet was obtained on her dying declaration. He proved the dying declaration
of the deceased Ex. Ka-9.

17. P.W.-6, Dr. R.L.Sharma, who was posted in the emergency department of S.N.Medical
college on 30.01.2005 deposed that he had certified the mental fitness of Smt. Madhuri to give her
statement in his handwriting on the dying declaration Ex. Ka-9 itself.

18. PW-7 Dr.A.A.Khan testified that he was posted as Medical Officer, Agra on
20.01.2005 and had examined Smt. Madhuri and prepared her medical report in his own hand
writing, photo copy whereof was brought on record and proved by him as Ex. K-4. He further
testified that at the time of recording of her dying declaration Smt. Madhuri was in a position to
speak and give her dying declaration.
514 INDIAN LAW REPORTS ALLAHABAD SERIES

19. PW-8 Vivek Kumar Mishra, who was entrusted with the investigation of this case after
it was converted one under Section 304B IPC following the death of Smt. Madhuri, testified in his
statement recorded before the trial court narrated the various steps taken by him, the documents and
the evidence collected by him during the course of investigation. He proved the charge sheet Ex.
Ka -10 and the site plan of the place of incident Ex. Ka-11 prepared by him.

20. PW-9 Constable 918 Anendra Singh proved the chek FIR Ex. Ka.-12 and the G.D.entry
prepared by him on 30.01.2005, carbon copy whereof was brought on reocrd as Ex. Ka-13.

21. Having scanned the evidence on record, we now proceed to examine the judicial
pronouncement on the issue in hand.

22. The Apex Court in paragraph 34 of its judgment reported in AIR SC (weekly) 2010,
Sharda Vs. State of Rajasthan has held as hereunder :-

"34. Though a dying declaration is entitled and is still recognized by law to be
given greater weightage but it has also to be kept in mind that accused had no chance of crossexamination. Such a right of cross- examination is essential for eliciting the truth as an obligation
of oath. This is the reason, generally, the court insists that the dying declaration should be such
which inspires full confidence of the court of its correctness. The court has to be on guard that such
statement of deceased was not as a result of either tutoring, prompting or product of imagination.
The court must be further satisfied that deceased was in a Crl.A.No. 699/08 fit state of mind after a
clear opportunity to observe and identify the assailants. Once the court is satisfied that the
aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it
can base its conviction without any further corroboration. It is not an absolute rule of law that the
dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence."

23. In this regard, we may profitably quote the following para from (1985) 4 SCC 476
titled State (Delhi Administration) Vs Laxman Kumar & Ors :

"40. We have also come to the conclusion that the High Court failed to take into
account one material aspect while appreciating the evidence of the prosecution witnesses. It is a
fact that Sudha had been burnt and according to the medical opinion that was to the extent of
70%.As the evidence shows, Sudha was in her senses and was capable of talking at the time when
she was being removed to the hospital or even after she had been admitted as an indoor patient.
The two sisters or their respective husbands had no apprehension that Sudha would not live. In
case Sudha came round, she was to have lived in the family of her husband. No one interested in
the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the
accused persons and lead to the straining of relationship in an irreparable way. Therefore,
Crl.A.No. 699/08 the silence or avoidance to make a true disclosure about the cause of fire
particularly so long as Sudha was alive, cannot be over- emphasised an adverse inference drawn
8 All. Santosh Vs State Of U.P.
515
by the High Court from the conduct of the sisters was indeed not warranted in the facts of the
case."

24. In this connection we may also to refer to the case of Munnavar and others Vs. State
of U.P. and others 2010 (70) ACC 853 (SC) wherein the Apex Court has held as under -

"that a dying declaration can be relied upon if the deceased ramained alive for a
long period of time after the incident and died after recording of the dying declaration, that may be
evident to show that his condition was not overtly critically or precarious when the dying
declaration was recorded"

25. It would be pertinent to note the case of Bajju @ Karan Singh Vs. State of M.P. 2012
(77) ACC 182 SC, Km. Anita Vs. State of U.P. [2013 (80)ACC 46] before the Apex Court which
had more or less identical facts. In this case also the dying declaration of the decesed was relied
upon and the witnesses of fact did not support the prosecution case and were declared hostile,
wherein the Supreme Court has observed as under:-

"Reliance by the learned counsel appearing for the appellant/accused upon the
judgment of this Court in the case of Munnu Raja and Another v. The State of Madhya Pradesh
(1976) 3 SCC 104 to contend that a dying declaration cannot be corroborated by the testimony of
hostile witnesses is hardly of any help. As already noticed, none of the witnesses or the authorities
involved in the recording of the dying declaration had turned hostile. On the contrary, they have
fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the
dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also
notice that this very judgment relied upon by the accused itself clearly says that the dying
declaration can be acted upon without corroboration and can be made the basis of conviction.
Paragraph 6 of the said judgment reads as under:-

"......It is well settled that though a dying declaration must be approached with
caution for the reason that the maker of the statement cannot be subject to cross- examination,
there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a
dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of
Bombay). The High Court, it is true, has held that the evidence of the two eyewitnesses
corroborated the dying declarations but it did not come to the conclusion that the dying
declarations suffered from any infirmity by reason of which it was necessary to look out for
corroboration."

In para-22 of this report the Hon'ble Court has further held that -

"The law is very clear that if the dying declaration has been recorded in
accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of
the events, then the dying declaration can certainly be relied upon by the court and could form the
sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the
516 INDIAN LAW REPORTS ALLAHABAD SERIES

principle that Section 32 of the Evidence Act, 1872 (for short 'the Act') is an exception to the
general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the
statement of the deceased admissible, which is generally described as a 'dying declaration'."

The Apex Court relying upon the dying declaration of the deceased being
consistent with the prosecution case which was fully corroborated by medical evidence did not
disturb the concurrent findings of guilt of accused-appellant recorded by the two Courts. In view of
the aforesaid preposition of the law the dying declaration of the deceased recorded in this case
fulfills all the legal requirements and it is in consonance with the prosecution story as also the
medical evidence."

26. A Division Bench of this Court in the case of Km. Anita Vs. State of U.P. reported in
ACC (2013) Vol (1) has in paragraph 20 of its judgment observed as hereinunder :-

"A dying declaration recorded by a competent Magistrate would stand on a much
higher footing than the declaration recorded by officer 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, however, circumstances showing anything to the contrary should not be there in the facts of
the case.[vide Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur V. State
of Punjab (1999) 6 SCC 545; Koli Chunilal Savji &Anr. v. State of Gujarat, (1999) 9 SCC 562;
and Vikas & Ors. v. State of Maharashtra, (2008) 2 SCC 516.] Thus we find that the dying
declaration of the deceased has no legal infirmity at all and it is also consistent with the case of the
prosecution. The deceased has spoken about ill-treatment of accused on account of dowry demand
as also illicit relations of her husband with his own real sister Anita. She had also assigned specific
role to each accused in her dying declaration. She could not give the date of incident, but has
stated that it is of instant Saturday. The calendar of year-2003 shows that 17th May, 2003 was
Saturday. Thus, the date of the incident is fully corroborated from the dying declaration of the
deceased. The defence could not show that the dying declaration is the result of tutoring Smt. Ram
Rati in any manner. If the statements of PW 1 (later part of PW 1) to PW 9 is believed then there
was no problem with the deceased in her matrimonial home, so why she had levelled allegations
against the accused in her dying declaration, could not be explained by the defence."

27. Thus what follows from the reading of the aforesaid authorities is that a dying
declaration can form sole basis of convinction, if it is free from any kind of doubt and it has been
recorded in the manner as proved under the law, is reliable and gives cogent and plaussible
explanation of the occurrence of the events. It may not be necessary to look for corroboration of the
dying declaration, as envisaged if a dying declaration is jointly to be recorded by a Executive
Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the
statement. Now we proceed to test the reliability of the dying declaration of the deceased Ex. Ka-9
in this case on the touch stone of the principles expounded herein above.