# Sarwari v. State of U.P

- **Citation:** (2021) 11 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-18
- **Case number:** Criminal Appeal No. 7387 of 2018
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarwari-v-state-of-u-p-46636
- **Pages:** 12

## Headnote

(A) Criminal Law - Indian Penal Code, 1860
- appeal against conviction under Section
302 read with 120B IPC - acquitted of the
charge for offences under Sections 147,
452, 326, 149 and 376 IPC - The Code of
criminal procedure, 1973 - Section 313 ,
319 - Dying declaration can be the sole
basis of conviction and it does not require
any corroboration - It is equally true that
dying declaration goes against the cardinal
principle of law that 'evidence must be
direct - Dying declaration must be judged
and appreciated in light of the surrounding
circumstances and its weight determined
by reference to the principle governing the
weighing of evidence.(Para - 48)

(B) Criminal law - The Code of criminal
procedure, 1973 - Section 313 - a solemn
duty is cast on the court in dispensation of
justice to adequately consider the defence
of the accused taken under Section 313
Cr.P.C. and to either accept or reject the
same for reasons specified in writing -
appellant come with a specific and plausible
defence but the trial court did not consider it -
convicted the appellant - held - conviction of
appellant unsustainable.(Para - 60,61)

Informant lodged an FIR against appellant and
four
others
-
informant's
(PW-1's)
niece
(deceased) residing with him for the last about
one and half years after death of her parents -
Co-accused
developed
illicit
relations
with
deceased and exploited her - deceased asked coaccused to marry her - co-accused refused -
deceased warned accused that she will inform
Police - co-accused, his father, his uncles and his
mother (appellant) entered the house of the
informant (PW-1) - set deceased ablaze after
pouring kerosene oil on her - dying declaration
recorded by Naib Tehsildar - convicted the
appellant and acquitted rest of the accused
persons.(Para - 3,4)

HELD:-Court unable to accept reasons given by
trial court in convicting appellant . Prosecution
failed to
prove
guilt of appellant beyond
reasonable doubt. Incident does not appear to
have happened in the manner stated by the
prosecution . Appellant entitled to benefit of
doubt & acquitted of all the charges for which
she was tried. Conviction & sentence set aside.
(Para - 62,63)

Criminal Appeal allowed. (E-7)

List of Cases cited:-
11 All. Sarwari Vs. State of U.P.
579

## Text

_Characters 0–39,986 of 43,678. This is a partial read: ask again with offset=39986 for what follows._

578 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellate court should not disturb the
finding of acquittal recorded by the trial court."

Unless there are substantial and
compelling reasons, the order of acquittal is not
required to be reversed in appeal. It has been so
stated in State of Rajasthan v. Shera Ram."

24. Considering the above legal position
and the factual aspects of the case, we are of the
view that the trial Court was fully justified in
acquitting the respondent.

25. Taking all the circumstances and after
perusing the evidence on record, we are of the
considered opinion that trial court judement
needs no interference. Thus, the appeal is
dismissed at the admission stage itself
----------
(2021)11ILR A578
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 7387 of 2018

Sarwari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Nazrul Islam Jafri, Sri Mainuddin Ahamad, Sri
Mohd. Irfan, Sri Raghuraj Kishore, Smt. Archana
Singh

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - Indian Penal Code, 1860
- appeal against conviction under Section
302 read with 120B IPC - acquitted of the
charge for offences under Sections 147,
452, 326, 149 and 376 IPC - The Code of
criminal procedure, 1973 - Section 313 ,
319 - Dying declaration can be the sole
basis of conviction and it does not require
any corroboration - It is equally true that
dying declaration goes against the cardinal
principle of law that 'evidence must be
direct - Dying declaration must be judged
and appreciated in light of the surrounding
circumstances and its weight determined
by reference to the principle governing the
weighing of evidence.(Para - 48)

(B) Criminal law - The Code of criminal
procedure, 1973 - Section 313 - a solemn
duty is cast on the court in dispensation of
justice to adequately consider the defence
of the accused taken under Section 313
Cr.P.C. and to either accept or reject the
same for reasons specified in writing -
appellant come with a specific and plausible
defence but the trial court did not consider it -
convicted the appellant - held - conviction of
appellant unsustainable.(Para - 60,61)

Informant lodged an FIR against appellant and
four
others
-
informant's
(PW-1's)
niece
(deceased) residing with him for the last about
one and half years after death of her parents -
Co-accused
developed
illicit
relations
with
deceased and exploited her - deceased asked coaccused to marry her - co-accused refused -
deceased warned accused that she will inform
Police - co-accused, his father, his uncles and his
mother (appellant) entered the house of the
informant (PW-1) - set deceased ablaze after
pouring kerosene oil on her - dying declaration
recorded by Naib Tehsildar - convicted the
appellant and acquitted rest of the accused
persons.(Para - 3,4)

HELD:-Court unable to accept reasons given by
trial court in convicting appellant . Prosecution
failed to
prove
guilt of appellant beyond
reasonable doubt. Incident does not appear to
have happened in the manner stated by the
prosecution . Appellant entitled to benefit of
doubt & acquitted of all the charges for which
she was tried. Conviction & sentence set aside.
(Para - 62,63)

Criminal Appeal allowed. (E-7)

List of Cases cited:-
11 All. Sarwari Vs. State of U.P.
579
1. St. of Maharashtra Vs. Hemant Kawadu Chauriwal
& ors., (2015) 17 SCC 598

2. Bhajju @ Karan Singh Vs. St. of M.P., (2012) 4 SCC
327

3. Takhaji Hiraji Vs. Thakore Kubersing Chamansing &
ors., (2001) 6 SCC 145

4. Ritesh Chakarvarti Vs. St. of M.P., (2006) 12 SCC
321

5. Reena Hazarika Vs. St. of Assam, AIR 2018 SC
5361

(Delivered by Hon'ble Sameer Jain, J.)

1. The present appeal has been preferred
by the appellant against the judgment and order
dated
15.11.2018/16.11.2018
passed
by
Additional Sessions Judge/FTC I, Deoria in
Sessions Trial No. 374 of 2014 by which learned
trial court convicted the appellant under Section
302 read with 120B IPC and punished her with
imprisonment for life and a fine of Rs.10,000/-
(Rs.Ten Thousand) with a default sentence of
six months rigours imprisonment. She was,
however, acquitted of the charge for offences
under Sections 147, 452, 326, 149 and 376 IPC.

2. Prosecution story in nutshell is that on
1.4.2014 at about 12.10 AM, PW-1 Azhar Ali,
the informant of the case, lodged an FIR against
appellant Sarwari and four others under Sections
307, 326, 376, 120B, 147 and 452 IPC at Police
Station Salempur, District Deoria vide Case
Crime No. 478 of 2014. As per FIR informant's
(PW-1's) niece Ayesha Khatoon (the deceased)
was residing with him for the last about one and
half years after the death of her parents. Coaccused Guddan S/o Islam developed illicit
relations with Ayesha Khatoon and exploited
her. When Ayesha Khatoon asked co-accused
Guddan to marry her, Guddan refused; upon
which, Ayesha warned Guddan that if he will
not perform marriage with her then she will
inform the Police. In that background, it is
alleged, on 27.3.2014, at about 2:00 PM (14
hours), co-accused Guddan, his father Islam; his
uncles Abdul; Jabbar and Riyaz; and his mother
Sarwari (appellant) entered the house of the
informant (PW-1) and set the deceased ablaze
after pouring kerosene oil on her. Immediately
after
the
incident
Ayesha
Khatoon
(the
deceased) was rushed to Primary Health Centre,
Salempur where Doctor referred her to the
District Hospital, Deoria where she was fighting
for her life.

3. As per prosecution, the statement of
injured Ayesha Khattoon was recorded by Naib
Tehsildar on 1.4.2014 (Ext.Ka-7). Injured
Ayesha Khatoon succumbed to her burn injuries
on 3.4.2014 at about 3.30 AM. On the
information of her death sent by the Hospital,
inquest proceeding was conducted on 3.4.2014.
Thereafter, on 3.4.2014 her post mortem was
conducted.
As
per
post
mortem
report
(Ext.Ka.8), Ayesha Khattoon died due to
septicaemic shock as a result of ante mortem
burn injuries.

4. A perusal of the post mortem report
(Ext.Ka.8) shows that the deceased Ayesha
Khatoon sustained superficial to deep burn all
over the body except lower part of leg and sole
(around 92%). After investigation, charge sheet
was submitted against the appellant and four
others under Sections 147, 307, 326, 302, 376,
452 and 120B IPC (Ext. Ka-16).

5. After submission of charge sheet case
was committed to the court of session. On
12.1.2015 charges were framed against appellant
and four other co-accused persons under
Sections 147, 452, 326/149, 376 and 302 IPC.
Appellant and other co-accused refused to plead
guilty and claimed trial.

6. During trial, prosecution examined
Azhar Ali, informant (PW-1); Shabana Khatoon
(PW-2); Abdul Aziz (PW-3); Ali Hasan (PW-4);
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Mustaq Ahmad (PW-5); Vinod Singh (PW-6);
Zarina Khatoon (PW-7); Zainul Abdeen (PW-8);
Dr. Alpana Rani Gupta (PW9); Constable Nikita
Singh (PW-10); Hadish Ahmad (PW-11);
Mithlesh Kumar Tripathi, Naib Tehsildar (PW12); SHO (Retd.) Ram Autar Yadav (PW-14); SI
(Retd.) Uma Shanker Mishra (PW-15); Meraj
Alam alias Meraj Rai (PW-16); Vijendra
Bahadur Singh (PW-17) (Retired Inspector); and
Dr. Surendra Ram (PW-18). Out of total 18
prosecution
witnesses,
five
witnesses
are
witnesses of fact, namely, Azhar Ali (PW1)(informant); Shabana Khatoon (PW-2)(wife of
PW-1); Zarina Khatoon (PW-7) (sister of
deceased); Hadish Ahmad (PW-7) (uncle of
deceased) and Meraj Ahmad @ Meraj Rai (PW16)(brother-in-law)
(Bahnoi)
of
deceased
Ayesha Khatoon. Rest of them are formal
witnesses.

7. After recording the statement of
prosecution witnesses, statement of accused
persons
including
appellant
Sarwari
was
recorded under Section 313 Cr.P.C. by the trial
court.

8. After perusing the entire evidence on
record, learned trial court convicted the
appellant under Section 302 IPC read with 120B
IPC. Rest of the accused persons were acquitted
of the charges. One co-accused Gudiya (not
charge-sheeted) was summoned under Section
319 Cr.P.C and her trial was separated on
9.10.2018. Her trial is still pending.

9. We have heard Smt. Archana Singh,
learned counsel for the appellant and Sri Gaurav
Pratap Singh, learned Brief Holder for the State.

10. Learned counsel for the appellant
submitted that during investigation all the
witnesses of fact including the informant (PW-1)
have turned hostile and they did not support the
prosecution case. She further contended that all
the prosecution witnesses clearly stated that
deceased Ayesha Khatoon desired immediate
marriage with co-accused Guddan i.e. son of the
appellant (Sarwari), but due to weak economic
condition co-accused Guddan and his family
members including the appellant wanted that the
marriage be performed after one year and only
due to this reason she committed suicide by
setting herself ablaze after pouring kerosene oil.

11. Learned counsel for the appellant
further contended that PW-1 Azhar Ali clearly
stated in his statement that he did not himself
write the FIR. The FIR was typed by some
villagers and he had put his thumb impression
on it. PW-1 and other witnesses including PW-2
Shabana Khatoon wife of PW-1 specifically
denied their statement recorded under Section
161 Cr.P.C. during investigation.

12. Learned counsel for the appellant also
argued that the dying declaration (Ext.Ka-7)
recorded by Naib Tehsildar also does not inspire
confidence as it is contrary to the surrounding
circumstances as well as contrary to the
statement of prosecution witnesses. She further
contended that there is no endorsement of
Doctor that she was fit to give dying declaration
and further before recording her statement, PW12, Mithlesh Kumar Tripathi, Naib Tehsildar
also failed to record his satisfaction as to
whether the deceased Ayeshya Khatoon was in a
fit state of mind to give her statement or not.

13. Learned counsel for the appellant
(Sarwari) submitted that the conviction of the
appellant in the present case is solely based on
the dying declaration of deceased Ayesha
Khatoon and as dying declaration recorded by
Naib Tehsildar (PW-12) does not inspire
confidence, therefore, conviction of appellant
Sarwari cannot be sustained and the impugned
order of conviction is liable to be set-aside.

14. Per contra, Sri Gaurav Pratap Singh,
learned Brief Holder for the State, contended
11 All. Sarwari Vs. State of U.P.
581
that prosecution case cannot be discarded merely
on the ground that the prosecution witnesses
turned hostile and did not support the
prosecution version during trial. As the FIR
clearly made allegation against the appellant and
all the prosecution witnesses of fact including
PW-1 Azhar Ali; PW-2 Shabana Kahtoon; PW-7
Zarina Khatoon (sister of the deceased); PW-11
Hadish Ahmad and PW-16 Meraj Alam @
Meraj Rai clearly stated that deceased Ayesha
Khatoon loved Guddan, son of the appellant, the
twist in their testimony, under pressure, would
not defeat the dying declaration.

15. Learned counsel for the State further
pointed out that the post mortem report clearly
shows that the deceased died due to burn injuries
and the dying declaration (Ext. Ka.-7) recorded
by Naib Tehsildar (PW-12) clearly and beyond
reasonable doubt proved that the appellant
Sarwari along with co-accused set the deceased
Ayesha Khatoon on fire, which is consistent
with the statements recorded under Section 161
Cr.P.C. during investigation by the Investigating
Officer, therefore, the appellant Sarwari has
been justifiably convicted and the present appeal
filed by her is liable to be dismissed.

16. Having noticed the rival submissions
and having perused the entire record of the case
carefully, it would be appropriate to notice
briefly the deposition of prosecution witnesses.

17. PW-1 Azhar (informant) in his
statement stated that co-accused Guddan is his
neighbour. Appellant and other co-accused
persons named in the FIR did not set the
deceased (Ayesha Khatoon) on fire but the
deceased (Ayesha Khatoon) committed suicide
by pouring kerosene oil on herself and setting
herself on fire due to extreme frustration because
the accused persons wanted to defer her
marriage with Guddan by one year; whereas, the
deceased (Ayesha Khatoon) wanted immediate
marriage. Prosecution declared this witness
hostile. In his cross-examination, PW-1 denied
the version of the FIR and stated that the FIR
was typed by some villagers and he put his
signature on the typed paper on the instructions
of "Daroga Ji". He also denied his statement
recorded by the Investigating Officer during
investigation. In the cross-examination, PW-1
further stated that Ayesha Khatoon (the
deceased) very often threatened that if her
marriage was not performed with Guddan, she
will commit suicide by burning herself and if
she remains alive then she will implicate
Guddan; appellant and other family members in
such a manner that they will remain in Jail
throughout their life. He further stated that at the
time of incident the appellant Sarwari and Gudia
(the sister of co-accused Guddan) were not
present at their house and they had gone to their
relatives home. In his statement PW-1 stated that
at the time of incident he was not present at the
place of incident.

18. PW-2 Shabana Khatoon is the wife of
informant (PW-1 Azhar Ali) and is the maternal
aunt of deceased (Ayesha Khatoon). She also
denied the version of FIR and her statement
recorded under Section 161 Cr.P.C. and stated
that the appellant and other co-accused persons
neither entered her house nor they ablazed
Ayesha Khatoon by pouring kerosene oil. This
witness also reiterated the fact that deceased
(Ayesha Khatoon) herself poured kerosene oil
on her and ablazed herself due to frustration that
the appellant and other co-accused persons
wanted to defer her marriage with co-accused
Guddan by one year; whereas, she wanted
immediate marriage. This witness was also
declared hostile by prosecution.

19. In her cross-examination, PW-2 stated
that deceased Ayesha Khatoon was a very
obstinate girl; she loved co-accused Guddan and
wanted immediate marriage with him but
appellant and other family members due to weak
economic condition did not want to perform
582 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage
immediately.
They
wanted
the
marriage to be solemnized after one year.

20. PW-2 in her cross-examination also
stated that deceased Ayesha Khatoon often use
to tell that if her marriage is not immediately
performed with Guddan then she will commit
suicide by burning herself and if she remains
alive then she will implicate the entire family of
Guddan including the appellant. PW-2, Shabana
Khatoon further stated that deceased Ayesha
Khatoon bore a grudge mainly against appellant
and Gudiya (sister of co-accused Guddan) and
addressed them as "Nagin". According to her,
appellant and Gudiya were the main hurdle in
her marriage with Guddan. She further stated
that at the time of incident the appellant and
Gudiya were not present at their house as they
had gone to the house of their relatives. PW-2
stated that she was not present in the house at
the time of incident. The other family members
also were out of their house.

21. Witnesses Abdul Aziz and Ali Hasan
have been examined as PW-3 and PW-4
respectively. Both these witnesses are witnesses
of recovery. Prosecution produced them to prove
the recovery of burnt clothes of the deceased,
which were allegedly recovered from the spot.
Both PW-3 and PW-4 stated before the trial
court that no recovery of any clothes were made
in their presence, prosecution declared both of
them hostile.

22. PW-5 Mustaq Ahmad, PW-6 Vinod
Singh and PW-8 Zainul Abdeen are witnesses of
inquest report (Ext.Ka.3).

23. PW-7, Zarina Khatoon, elder sister of
the deceased (Ayesha Khatoon), although she
was not at the spot at the time of incident but
stated that her sister (deceased Ayesha Khatoon)
wanted immediate marriage with co-accused
Guddan, whereas, the appellant and her family
members were not ready for immediate
marriage, therefore, her sister Ayesha Khatoon
committed suicide. This witness in her crossexamination also stated the same fact that her
sister deceased (Ayesha Khatoon) used to state
that if her marriage would not be performed
immediately with co-accused Guddan then she
will commit suicide by burning herself and if
she remains alive then she will implicate the
entire family of co-accused Guddan. This
witness PW-7 also stated the same version as
given by PW-2 that her sister deceased Ayesha
Khatoon was very annoyed with appellant and
Gudiya(sister of co-accused Guddan). This
witness also denied her statement recorded
under Section 161 Cr.P.C. during investigation.

24. PW-9 is Dr. Alpana Rani Gupta. She
did internal examination of injured Ayesha
Khatoon (since deceased) on 1.4.2014 and found
her hymen old torn.

25. She proved the medical report dated
1.4.2014 of Ayesha Khatoon as Ext.Ka-4.

26. Constable Nikita Singh has been
examined as PW-10. In her presence, Ayesha
Khatoon was medically examined by Dr. Alpana
Rani Gupta (PW-9) and she also prepared chick
FIR.

27. PW-11, Hadish Ahmad is the uncle of
the deceased. He also repeated the same version
as given by PW-1, PW-2 and PW-7 in respect of
manner and reason of the incident. Although,
this witness is one of the witnesses of inquest
too, but in his statement he stated that at the time
he had put his signature on the inquest report
(Panchayatnama) of the deceased Ayesha
Khatoon, the police did not inform him that the
appellant and co-accused persons were involved
in burning the deceased after pouring kerosene
on her. This witness was also declared hostile by
the prosecution. In his cross-examination, this
witness supported the version of PW-1, PW-2,
PW-7 and stated that deceased (Ayesha
11 All. Sarwari Vs. State of U.P.
583
Khatoon) committed suicide only on account of
frustration because of deferment of her marriage
with co-accused Guddan; and that the appellant
and her family members were not involved in
her death.

28. PW-12 Mithlesh Kumar Tripathi, Naib
Tehsildhar, who recorded dying declaration
(Ext.Ka.7) of deceased Ayesha Khatoon on
1.4.2014. According to this witness on 1.4.2014
at about 4.20 AM he started recording dying
declaration of the victim Ayesha Khatoon after
the certificate of the Doctor that victim Ayesha
Khatoon is conscious. PW-12 stated that dying
declaration was concluded on 1.4.2014 at about
4:30 AM and after recording the statement,
again, the Doctor endorsed that Ayesha Khatoon
was
fully
conscious.
He
proved
dying
declaration dated 1.4.2014 as Ext. Ka-7. In his
cross-examination, this witness stated that he
cannot tell about the mental condition of victim
Ayesha Khatoon and only the Doctor could tell
about her mental condition. One important point
in respect of the statement of PW-12, Mithlesh
Kumar Tripathi, Naib Tehsildar is that in his
statement he did not state about the contents of
the dying declaration. He only stated that on
1.4.2014 at about 4.20 AM he started recording
dying declaration of victim Ayesha Khatoon,
which was completed at about 4.30 AM.

29. PW-13 is Dr. Suresh Kumar, who
conducted the post mortem of deceased Ayesha
Khatoon on 3.4.2014. At the time of post
mortem, PW-13 Dr. Suresh Kumar found
following ante mortem injuries:

"External injuries: (1) Superficial to
deep burn all over the body except lower part of
legs and sole (around 92%) and singing of hair
present"

30. According to Dr. Suresh Kumar (PW13) wounds of Ayesha Khatoon were filled with
pus and she died due to septicaemic shock due to
ante mortem burning. He proved the post
mortem report as Ext.Ka-8.

31. PW-14 is SHO Ram Autar Yadav,
second Investigating Officer of the case. He
stated that on 1.4.2014 he was posted at Kotwali
Salempur and after the transfer of earlier
Investigating Officer, SHO Vijendra Bahadur
Singh, he started investigation of the case.
According to PW-14, he recorded the statement
of Meraj Alam alias Meraj Rai (PW-16) on
23.6.2014 under Section 161 Cr.P.C. and after
investigation he submitted charge sheet against
appellant Sarwari, co-accused Guddan, Islam,
Abdul Jabbar and Riyaz under Sections 147,
307, 326, 302, 376, 452 and 120-B IPC. He
proved the charge sheet as Ext. Ka-16. In his
cross-examination this witness stated except the
accused persons nominated in the FIR, he did
not find evidence against any other accused.

32. Perusal of the statement of this witness
PW-14 shows he did not speak anything in
respect of dying declaration (Ext.Ka.7) dated
1.4.2014 of deceased Ayesha Khatoon. It
appears that during investigation and at the time
of submission of charge sheet, he was not aware
about the dying declaration (Ext.Ka.7) of
deceased Ayesha Khatoon and, therefore, he did
not submit charge sheet against co-accused
Gudiya, who was nominated by deceased
Ayesha Khatoon in her dying declaration dated
1.4.2014 (Ext.Ka.7) along with the appellant.

33. PW-15 is SI Uma Shanker Mishra
(retired). This witness stated that on 3.4.2014 he
was posted at Chowki of Police Station Sadar,
Deoria and he received the information
regarding death of deceased Ayesha Khatoon
from District Hospital Deoria. On information
he prepared inquest report and sent the body of
deceased Ayesha Khatoon for post mortem. He
proved the inquest report dated 3.4.2014 as
Ext.Ka.3. In his cross-examination, he stated
that at the time of inquest proceeding, no case
584 INDIAN LAW REPORTS ALLAHABAD SERIES
was registered at Police Station Kotwali Deoria
in respect of death of deceased Ayesha Khatoon.
This related to Police Station Salempur.

34. PW-16 Meraj Alam @ Meraj Rai is the
brother-in-law (Bahnoi) of the deceased (Ayesha
Khatoon) and husband of PW-7 (Zarina
Khatoon). This witness was admittedly not
present at the spot. He is resident of District
Gopalganj (Bihar). In his examination-in-chief
he stated that on 27.3.2014 Azhar Ali (PW-1)
informed him on phone that his neighbour i.e.
appellant and her family members ablazed
Ayesha Khatoon and that she is being taken to
Hospital. On this information he arrived at
Deoria District Hospital in the night at about
10:00 PM along with his wife Zarina Khatoon
(PW-7). This witness stated that deceased
Ayesha Khatoon informed him that with regard
to the incient she has already narrated the entire
facts to the Investigating Officer. In his crossexamination, this witness did not support his
previous statement given in the examination-inchief and stated that deceased (Ayesha Khatoon)
in the Hospital told him that she committed
suicide because her marriage was not being
performed
immediately
with
co-accused
Guddan. In his cross-examination this witness
further stated that deceased (Ayesha Khatoon)
did not inform him that appellant and accused
persons ablazed her by pouring kerosene oil.
PW-16 also stated that when he met Ayesha
Khatoon, one day before her death she was
regretting that she gave her statement against the
appellant and co-accused Gudiya in anger.

35. PW-17 is Vijendra Bahadur Singh
(retired Inspector). He is first Investigating
Officer of the case. In his presence, case was
registered on 1.4.2014. He recorded the
statement of Constable Nikita Singh, who
prepared chick FIR, informant Azhar Ali (PW-1)
and injured victim Ayesha Khatoon. This
witness stated that after recording the statement
of informant and injured victim, he sent a report
to
Chief
Medical
Officer
and
Naib
Tehsildar,Sadar, Mithlesh Kumar Tripathi for
recording dying declaration of victim Ayesha
Khatoon. PW.17 the first Investigating Officer
stated that deceased Ayesha Khatoon informed
him that co-accused Guddan, Islam, Abdul
Jabbar, Riyaz and mother of Guddan, namely,
Sarwari (appellant) wanted to kill her by pouring
kerosene oil and had put her on fire.

36. PW-17 in his statement did not state at
which time he recorded the statement of injured
victim Ayesha Khatoon on 1.4.2014.

37. We notice an important feature in the
statement of PW-17, i.e. first Investigating
Officer Vijendra Kumar Singh, which is that he
did not prove the statement of Ayesha Khatoon,
alleged to have been recorded by him during
investigation under Section 161 Cr.P.C. on
1.4.2014. Neither any exhibit was put on the
statement of Ayesha Khatoon recorded under
Section 161 Cr.P.C. nor PW-17 stated that
before recording the statement of deceased
Ayesha Khatoon, he obtained a certificate of
fitness from Doctor.

38. During investigation this witness made
arrest of appellant and other co-accused persons
and also prepared site plan and did spot
inspection. He also recovered burnt clothes of
deceased Ayesha Khatoon along with one
canister of kerosene oil in the presence of Ali
Hasan (PW-4) and Abdul Aziz (PW-3).
Although both these witnesses (PW-3 and PW4) denied the alleged recovery of clothes and
canister of kerosene oil in their presence. PW17, during investigation recorded the statement
of PW-2 Shabana Khatoon; PW-3 Abdul Aziz;
PW-4 Ali Hasan; PW-6 Vinod Singh; PW-7
Zarina Khatoon; and PW-8 Zainul Abdeen. In
his cross-examination, PW-17 stated that during
investigation he did not record the statement of
PW-12 Mithlesh Kumar Tripathi, who recorded
the dying declaration, PW-13 Dr. Suresh Kumar
11 All. Sarwari Vs. State of U.P.
585
and PW-16 Meraj Alam alias Meraj Rai. He
further stated in his cross-examination that he
did not peruse the dying declaration (Ext.Ka.7)
of deceased Ayesha Khatoon, which was
recorded by Naib Tehsildar Mithlesh Kumar
Tripathi (PW-12). He further stated that during
investigation he did not record the statement of
the Doctor who provided the certificate before
recording the dying declaration.

39. The last witness of the prosecution is
PW-18, Dr.Surendra Ram, who was present on
1.4.2014 as Emergency Medical Officer in
District Hospital, Deoria and in his presence the
dying declaration (Ext. Ka.7) of deceased
Ayesha Khatoon was recorded on 1.4.2014. This
witness stated that before the dying declaration,
he endorsed that the patient is conscious and
such endorsement was made again, after
completion of dying declaration. He proved his
signature on the documents Ext.Ka-20 and Ext.
Ka-21. In his cross-examination, PW-18 stated
that he had only endorsed on the dying
declaration that the patient was conscious and
did not make any endorsement in the dying
declaration in respect of her orientation.

40. After recording the statement of
prosecution witnesses, trial court recorded the
statement of appellant and co-accused persons
under Section 313 Cr.P.C.

41. Appellant Sarwari in her statement
recorded under Section 313 Cr.P.C. denied all the
allegations and in defence she specifically stated that
she is innocent. She stated that the deceased Ayesha
Khatoon loved her son Guddan (co-accused) and
wanted an immediate marriage but due to weak
economic condition she told her to keep patience for
one to two years and as soon as their condition would
improve, her marriage will be performed with
Guddan but the deceased Ayesha Khatoon used to
threatened
if
marriage
is
not
immediately
solemnized, then she will commit suicide and entire
family will be in Jail. Appellant in her answer to
question no.22, made a statement, under Section 313
Cr.P.C., that the deceased used to say that in her
marriage, the appellant is the main hurdle. She further
stated that she never burnt her.

Trial court findings:

42. Learned trial court found that the dying
declaration (Ext.Ka.7)recorded by Naib Tehsildar,
Mithlesh Kumar Tripathi was cogent and reliable
piece of evidence and on its basis, convicted the
appellant and acquitted rest of the accused persons,
namely, Guddan, Islam, Abdul Jabbar and Riyaz.

Analysis:

43. In the present case all the five witnesses of
facts, namely, Azhar Ali, informant (PW.1); his wife
Shabana Khatoon(PW.2); Zarina Khatoon (PW7);
Hadish Ahmad (PW-11); Meraj Alam alias Meraj
Rai (PW-16) have turned hostile. They did not
support the prosecution version. PW.1 Azhar Ali
even denied the version of FIR.

44. The alleged dying declaration recorded by
the Investigating Officer (PW-17) Vijendra Bahadur
Singh does not inspire confidence as it was neither
proved by him from the case diary nor he tried to
procure the certificate of Doctor in respect of fitness
of the deceased (Ayesha Khatoon). Further, he did
not mention the time of recording such statement of
deceased (Ayesha Khatoon).

45. Therefore, the only evidence that
remains in the present case is the dying
declaration (Ext. Ka.7) recorded by Naib
Tehsildar (PW-12).

46. We have examined the admissibility
and reliability of the dying declaration (Ext.
Ka.7).

47. It is settled legal position that a dying
declaration can become the sole basis of
586 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction if it is reliable and the deceased at the
time of giving statement is in a fit state of mind.
If it is reliable and cogent, then it may be relied
even without corroboration. But it is also equally
true that as its giver is not present for crossexamination, it must be judged, appreciated and
weighed in the light of surrounding and
attending
circumstances
and
its
weight
determined by reference to the principle
governing the weighing of evidence.

48. The Apex Court in the case of State of
Maharashtra
Vs.
Hemant
Kawadu
Chauriwal and others, reported in (2015) 17
SCC 598, in paragraph-8, observed as under:

"8. In our considered opinion, two
main arguments have been advanced before this
Court and we shall now examine each and every
contention in light of the arguments adduced
before us. It is a settled law that dying
declaration can be the sole basis of conviction
and it does not require any corroboration. But it
is equally true that dying declaration goes
against the cardinal principle of law that
'evidence
must
be
direct'.
Thus,
dying
declaration must be judged and appreciated in
light of the surrounding circumstances and its
weight determined by reference to the principle
governing the weighing of evidence.

49. Similarly the Apex Court in the case of
Bhajju alias Karan Singh Vs. State of Madhya
Pradesh, reported in (2012) 4 SCC 327, in
paragraph-12, observed as under:

"12. The law is well-settled that a
dying declaration is admissible in evidence and
the admissibility is founded on the principle of
necessity. A dying declaration, if found reliable,
can form the basis of a conviction. A Court of
facts is not excluded from acting upon an
uncorroborated dying declaration for finding
conviction. The dying declaration, as a piece of
evidence, stands on the same footing as any
other piece of evidence. It has to be judged and
appreciated
in
light
of
the
surrounding
circumstances and its weight determined by
reference to the principle governing the
weighing of evidence. If in a given case a
particular dying declaration suffers from any
infirmity, either of its own or as disclosed by the
other evidence adduced in the case or the
circumstances coming to its notice, the Court
may, as a rule of prudence, look for
corroboration and if the infirmities are such as
would render a dying declaration so infirm that
it pricks the conscience of the Court, the same
may be refused to be accepted as forming basis
of the conviction."

50. From the perusal of above noted
judgments of the Hon'ble Apex Court, it is very
much apparent that the dying declaration has to
be judged and appreciated in the light of the
surrounding circumstances and its weight
determined by reference to the principle
governing the weighing of evidence.

51. In the present case, the surrounding
circumstances, as narrated by the witnesses of
facts, demonstrated that the deceased (Ayesha
Khatoon) was an obstinate girl and she herself
committed suicide by pouring kerosene oil upon
her, as she wanted immediate marriage with the
son of the appellant, namely, Guddan, whereas,
the accused persons were not ready for
immediate marriage as their economic condition
was weak and they wanted that the marriage
may be performed after one year. All the
witnesses clearly stated that the deceased
(Ayesha Khatoon) bore a grudge against the
appellant Sarwari and Gudiya (sister of coaccused Guddan), as according to her, both were
the main hurdle in her immediate marriage with
co-accused Guddan.

52. PW-16 Meraj Alam @ Meraj Rai
specifically stated in his cross-examination that
the deceased Ayesha Khatoon informed him that
11 All. Sarwari Vs. State of U.P.
587
she, in deep anger, implicated the appellant and
other co-accused Gudiya. Thus, the surrounding
circumstances of the present case do not support
the dying declaration recorded on 1.4.2014 by
Naib Tehsildar, Mithlesh Kumar Tripathi (PW12) and, therefore, without corroboration, it is
difficult to base a conviction solely on this dying
declaration. Moreso, when all the prosecution
witnesses of fact turned hostile and did not
support the dying declaration and also disclosed
the reason why the deceased had implicated the
appellant and co-accused Gudiya in her dying
declaration. As, in the present case, except the
dying declaration (Ext.Ka.7) there is no reliable
and cogent evidence on record, it is unsafe to
rely on such uncorroborated dying declaration.

53. Further, during entire investigation
none of the Investigating Officers noticed the
dying declaration(Ext.Ka.7), dated 1.4.2014,
recorded by PW-12, Mithlesh Kumar Tripathi,
Naib Tehsildar. Further, during investigation,
the statement of Naib Tehsildar (PW-12) and
Surendra Ram (PW-18), who endorsed the
consciousness of Ayesha Khatoon at the time of
recording the dying declaration (Ext.Ka.7), was
not recorded.

54. ` It appears that during entire
investigation both the Investigating Officers
were not even aware about the dying declaration
(Ext.Ka.7). This fact casts a serious doubt on the
authenticity and reliability of the dying
declaration
(Ext.Ka-7)
recorded
by
Naib
Tehsildar (PW-12). Therefore, in our considered
view, dying declaration (Ext.Ka.7), recorded by
Naib Tehsildar (PW-12), is not such on which
alone, conviction could be recorded.

55. Another important feature of the
present case is that prosecution failed to examine
Shaukat Ali, maternal grandfather (Nana) of
deceased (Ayasha Khatoon), who admitted her
in the Hospital. Even during investigation, the
Investigating Officer did not record his
statement. In our view, Shaukat Ali was a
material witness of fact and his non-examination
deprives the court of having the best evidence to
have a glimpse at the genesis of the incident.

56. In the case of Takhaji Hiraji Vs.
Thakore Kubersing Chamansing and others,
reported in (2001) 6 SCC 145 the Supreme
Court in para-19 observed as follows:

"It is true that if a material witness,
who would unfold the genesis of the incident or
an essential part of the prosecution case, not
convincingly brought to fore otherwise, or where
there is a gap or infirmity in the prosecution case
which could have been supplied or made good
by examining a witness who though available is
not examined, the prosecution case can be
termed as suffering from a deficiency and
withholding of such a material witness would
oblige the Court to draw an adverse inference
against the prosecution by holding that if the
witness would have been examined it would not
have supported the prosecution case."

57. In Ritesh Chakarvarti Vs. State of
M.P. reported in (2006) 12 SCC 321 the
Supreme Court after examining illustration (g)
of Section 114 of the Indian Evidence Act held
that an adverse inference could be drawn for
non-examination of material witnesses. As, in
our opinion, Shaukat Ali, maternal grandfather
(nana) of deceased Ayesha Khatoon was a
material witness, who not examined, an adverse
inference can be drawn against the prosecution
and
in
the
absence
of
his
evidence
uncorroborated dying declaration(Ext.Ka.7) is
not so much worthy as could form the basis of
conviction even in absence of any other
corroborative evidence.

58. At this stage, we may notice, the
answer of the appellant to question no. 23
recorded under Section 313 Cr.P.C. Question
No. 23 and its answer are as follows:
588 INDIAN LAW REPORTS ALLAHABAD SERIES

"प्रश्न नों०23- क्ा आपक और कुछ कहना
है ?

उत्तरः- मैं वनर्ोष हूँ आयिा िातून गुड्डन से
प्रेम करती थी घटना के समय तत्काल उससे िार्ी
करने की वजर् पर अडी थी मैं उसक समझाया वक
साल र् साल सबर कर आवथदक क्तस्थवत ठीक ह ते ही
गुड्डुन से तुम्हारी िार्ी करा र्ी जायेगी मगर आयिा
कहती थी वक तत्काल िार्ी नही हुई त िह आग लगा
कर आत्म हत्या कर लेगी या क ई ठ स कर्म उठा
लेगी वजससे पररिार के ल ग जेल काटेंगें और कहती
थी वक उसकी िार्ी तत्काल न ह ने में सबसे बडी
बार्ा मैं हूँ इस नाते िह मुझसे चीडी रहती थी मैं उसे
न त जलाया न ही गलत व्यिहार वकया अगर उसने
क ई ब्यान वर्या ह गा त वजर् ि प्रवति र् की भािना
से झूठा वर्या ह गा।"

59. The answer of question no.23 clearly
shows that the appellant has come with a clear
and plausible explanation of her innocence
which fits in with the scheme of events brought
out in the prosecution evidence and also explains
the reason why she was falsely implicated.
Notably, Ayesha Khatoon loved Guddan, the
son of appellant, and she wanted immediate
marriage with Guddan and when the appellant
tried to explain it to the deceased that their
economic condition is not good and advised her
to maintain patience for a year or two, the
deceased got infuriated and used to consider the
appellant as the main culprit for the delay in her
marriage. This specific explanation offered by
the appellant finds support from the statement of
all witnesses of fact. The trial court while
convicting the appellant completely failed to
take note of the explanation offered by the
appellant in her statement under Section 313
Cr.P.C. which was probable in the facts of the
present case.

60. The Supreme Court in the case of
Reena Hazarika Vs. State of Assam, reported
in AIR 2018 SC 5361, in paragraph-16 of the
judgment, observed as follows:

"16. Section 313, Cr.P.C. cannot be
seen simply as a part of audi alteram partem. It
confers a valuable right upon an accused to
establish his innocence and can well be
considered beyond a statutory right as a
constitutional right to a fair trial under Article 21
of the Constitution, even if it is not to be
considered as a piece of substantive evidence,
not being on oath under Section 313(2), Cr.P.C.
The importance of this right has been considered
time and again by this court, but it yet remains to
be applied in practice as we shall see presently
in the discussion to follow. If the accused takes
a defence after the prosecution evidence is
closed, under Section 313(1)(b) Cr.P.C. the
Court is duty bound under Section 313(4)
Cr.P.C. to consider the same. The mere use of
the word ''may' cannot be held to confer a
discretionary power on the court to consider
or not to consider such defence, since it
constitutes a valuable right of an accused for
access to justice, and the likelihood of the
prejudice that may be caused thereby.
Whether the defence is acceptable or not and
whether it is compatible or incompatible with
the evidence available is an entirely different
matter. If there has been no consideration at
all of the defence taken under Section 313
Cr.P.C., in the given facts of a case, the
conviction may well stand vitiated. To our
mind, a solemn duty is cast on the court in
dispensation of justice to adequately consider
the defence of the accused taken under
Section 313 Cr.P.C.