# Shah Mohammad & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Criminal Appeal No. 3307 of 2017
- **Bench:** Printiker Diwaker, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shah-mohammad-anr-in-jail-v-state-of-u-p-45729
- **Pages:** 12

## Headnote

Law-Indian
Penal
Code
Section 304-B, 326, 498-A and under
Section 3/4 of Dowry Prohibition Act,- Appeal
against conviction.

We have no hesitation to hold that the dying
declaration was recorded in accordance with
law and there is no infirmity in the same.
Further there is no inconsistency in the dying
declaration and the same inspire confidence of
this Court. (Para 28)

it very clear as to the manner in which the
deceased was burnt by the appellants. It has
come in the dying declaration that the entire
act has been done at his instance and at his
dictates, and he did not make any effort to
save his wife. As already stated that apart from
the dying declaration recorded by the Executive
Magistrate, oral dying declaration was also
made by the deceased before PW-1 and,
therefore, role assigned to the appellants has
been duly proved by the prosecution. (Para 29)

Criminal Appeal rejected. (E-2)

List of cases cited:-

## Text

2 All. Shah Mohammad & Anr. Vs. State of U.P.
769
preferred any appeal assailing the acquittal
of co-accused, Ramesh Chandra Pandey.

61. Copy of judgment be sent to the
concerned trial court and the Senior
Superintendent,
Central
Jail
Naini,
Prayagraj for information and further
necessary action.

62. The record of trial court be sent
back for compliance.
----------
(2020)02ILR A769

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE PRINTIKER DIWAKER, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 3307 of 2017

Shah Mohammad & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri M.P. Yadav

Counsel for the Opposite Party:
A.G.A., Sri J.K. Upadhyaya

A.
Criminal
Law-Indian
Penal
Code
Section 304-B, 326, 498-A and under
Section 3/4 of Dowry Prohibition Act,- Appeal
against conviction.

We have no hesitation to hold that the dying
declaration was recorded in accordance with
law and there is no infirmity in the same.
Further there is no inconsistency in the dying
declaration and the same inspire confidence of
this Court. (Para 28)

it very clear as to the manner in which the
deceased was burnt by the appellants. It has
come in the dying declaration that the entire
act has been done at his instance and at his
dictates, and he did not make any effort to
save his wife. As already stated that apart from
the dying declaration recorded by the Executive
Magistrate, oral dying declaration was also
made by the deceased before PW-1 and,
therefore, role assigned to the appellants has
been duly proved by the prosecution. (Para 29)

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. St. of Guj. v. Jayrajbhai Punjabhai Varu,
(2016) 14 SCC 151,

2. Gaffar Badshaha Pathan v. St. of Mah.,
(2004) 10 SCC 589,

3. P. Mani v St. of Tamilnadu, 2006 (3) SCC
161,

4. Lakhan v. St. of MP, (2010) 8 SCC 514,

5. Shudhakar v. St. of MP, (2012) 7 SCC 569,

6. Ramakant Mishra v. St. of UP, (2015) 8
SCC 299,

7. Hari Om Vs. St. of Har. & Another, 2014
(10 SCC 57,7

8. Hem Chand Vs. St. of Har. 1994 (6) SCC
727,

9. Amar Singh Vs. St. of Raj.; 2010 (9) SCC
64,

10. Shanti Vs. St. of Har., 1991 (1) SCC 371,

11. Sanjay Kumar Singh Vs. St. of Delhi1;
2011 (11) SCC 733,

12. Donthula Ravindranath alias Ravinder
Rao Vs. St. of A.P. (2014) 3 SCC 196,

13. Ranjit Singh Vs. St. of Punjab; (2013) 12
SCC 333,

14. Sunil Dutt Sharma Vs. State (Govt of NCT
of Delhi); (2014) 4 SCC 375,
770 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Pradeep Kumar Vs. St. of Har., 2009-AIR
(SCW)-0-3318,

16. Banarsi Dass & others Vs. St. of Har. 2015
(1) JIC 757 (SC),

17. Smt. Rama Devi Vs. State of U.P.2017 0
Supreme (All) 2554,

(Delivered by Hon'ble Pritinker Diwaker,
J.)

1. This appeal arises out of the
impugned judgment and order dated
25.05.2017 passed by the Additional
Sessions Judge/Special Judge, (E.C. Act),
Fatehpur in Sessions Trial No. 174 of 2010
(State of U.P. Vs. Shah Mohammad and
others)
convicting
accused-appellants
Shah Mohammad and Noor Mohammad
under Section 304-B, 326, 498-A of IPC
and
under
Section
3/4
of
Dowry
Prohibition Act and sentencing them to
undergo imprisonment for life; 10 years
rigorous imprisonment, with fine of
Rs.10,000/- each, in default thereof, one
year additional rigorous imprisonment;
three years rigorous imprisonment with
fine of Rs.5,000/- each, in default six
months additional simple imprisonment
and two years rigorous imprisonment with
fine of Rs.5000/- each, in default thereof
one year additional rigorous imprisonment
respectively.

2. In the present case, name of the
deceased is Tahira Bano, wife of accusedappellant
No.1
Shah
Mohammad.
Appellant No.2 Noor Mohammad is
nephew of appellant No.1. Marriage of the
deceased Tahira Bano was solemnized
with appellant No.1 about 3-5 years prior
to the date of incident i.e. 16.09.2009. It is
said that deceased was subjected to cruelty
for demand of dowry by appellant No.1
and his other family members and on
16.09.2009, father-in-law of the deceased
namely Bafati alias Fakeere, accusedappellant No.2 Noor Mohammad and his
sister-in-law caught hold the deceased,
whereas other nephew of appellant No.1,
namely, Nazeer Mohammad after pouring
kerosene oil on the deceased set herself
ablaze. It is further alleged that at the
relevant time, accused appellant No.1 who
was standing there, did not make any
effort to save the deceased and it is at his
instance the entire act has been done by
other accused persons. Immediately after
coming to know the burn incident, the
family members of the deceased rushed to
the spot and found no one to help the
deceased. Smt. Quresha Bano (PW-1),
mother of the deceased and other family
members hired a vehicle and took the
deceased to the hospital at 10.40 P.M.
where her dying declaration was recorded
on the next day i.e. on 17.09.2009 by Arun
Kumar Srivastava (PW-9), Executive
Magistrate.
Before
recording
dying
declaration, Executive Magistrate, had
duly obtained certificate of Dr. Anupam
Jaiswal (PW-3) who has stated that the
deceased was in a fit state of mind to make
the dying declaration. In the dying
declaration, deceased has categorically
stated as to the manner in which she was
burnt by the appellants and their other
family members.

3. On the basis of written report
(Ex.Ka.1) lodged by Smt. Quresha Bano
(PW-1), on 19.09.2009 FIR (Ex.Ka.3) was
registered against appellant No.1 Shah
Mohammad (husband of the deceased),
deceased accused Bafati alias Fakeere
(father-in-law), sister in law of the
deceased and two nephews including
appellant No.2 Noor Mohammad under
Sections 498A, 326 of IPC read with
Section 3/4 of Dowry Prohibition Act.
2 All. Shah Mohammad & Anr. Vs. State of U.P.
771
During treatment, deceased expired on
29.09.2009.

4. Inquest on her dead body was
conducted on 29.09.2009, vide Ex.Ka.8,
and the body was sent for postmortem,
which was conducted by Dr. Prabhunath
(PW-8), vide Ex.Ka.13, on 29.09.2009. As
per medical report, deceased suffered
about 81% burn injury and she died bcause
of septicemia.

5. After investigation, charge-sheet
was filed against appellant No.1 Shah
Mohammad and his father Bafati alias
Fakire.
However,
during
trial,
an
application was filed by the prosecution
under Section 319 Cr.P.C., which was
allowed and then other accused persons,
namely, appellant No.2 Noor Mohammad
(nephew of appellant No.1), Saida Begum
(sister-in-law/Jethani of the deceased) and
Nazeer Mohammad (another nephew of
appellant No.1) were also made as an
accused. It has been informed that the trial
of co-accused Saida Begum and Nazeer
Mohammad
has
been
separated
on
30.03.2013 and the same is pending.

6. As per Autopsy Surgeon, the cause
of death was due to septicemia as a result
of ante mortem wound.

7. The trial Judge has framed charge on
22.05.2010 initially against the appellants
under Sections 498-A, 326, 306 of IPC and 3/4
of Dowry Prohibition Act and thereafter, on
16.10.2010, alternative charge under Section
304-B of IPC was also framed against them.

8. So as to hold the accused appellants
guilty,
prosecution
has
examined
nine
witnesses, whereas two defence witnesses
have also been examined. Statements of the
accused appellants were recorded under
Section 313 of Cr.P.C., in which they pleaded
their innocence and false implication.

9. By the impugned judgment, the trial
Judge has convicted both the appellants under
Sections 304-B, 326, 498-A of IPC and under
Section 3/4 of Dowry Prohibition Act and
sentenced them as mentioned in paragraph
No.1 of the judgment.

10. Counsel for the appellants submits:

(i)
that
there
is
material
contradiction in the statements of Smt.
Quresha Bano (PW-1) and Jamal Ahmad
(PW-2). In fact, Jamal Ahmad (PW-2) has
not fully supported the statement of Smt.
Quresha Bano (PW-1) and thus both these
witnesses are not reliable.

(ii) that oral dying declaration
made before Smt. Quresha Bano (PW-1) is
doubtful and it appears that the deceased
was not in a position to make any such
statement.

(iii)
that
dying
declaration
(Ex.Ka.2) allegedly made before the
Executive
Magistrate
appears
to
be
doubtful because, at the relevant time,
deceased was not in a fit state of mind to
make such statement. In the dying
declaration, it has not been recorded that
even till completion of the same, deceased
was in a fit state of mind to make the said
dying
declaration.
Learned
counsel
submits that before recording the dying
declaration, even if the Doctor has given a
certificate, the Executive Magistrate was
under an obligation to record as to whether
the deceased was in a fit state of mind to
make the dying declaration.

(iv) the only role assigned to
appellant no.1 is that when the deceased
was being burnt by other accused persons,
he was simply standing there. Learned
counsel
submits
that
even
if
the
772 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution case is taken as it is, no
offence whatsoever has been made out
against appellant No.1.

(v) that appellant No.1 is in jail
since 19.09.2009 whereas appellant No.2
is in jail since 11.04.2011. Both these
appellants have served more than seven
years of sentence and life sentence is not
mandatory under Section 304B of IPC.
Therefore, their sentence be at least
reduced to the period already under gone
by them.

11. On the other hand, supporting the
impugned judgment, it has been argued by
the State counsel:-

(i) that the impugned judgment
is in accordance with law and there is no
infirmity in the same.

(ii) that the act of the appellants
shows brutality of the offence where the
appellants and other co-accused persons
caught hold the deceased, poured kerosene
oil on her and then she was set on fire.

(iii) In respect of appellant No.1,
it has been argued that when the other
accused persons were executing the act, he
was simply standing there. He did not
made any effort to save the deceased and
the entire act has been done at his
instance/under
his
guidance
and
supervision.

(iv) that even if life sentence is
not mandatory, considering the heinous act
of the appellants, the court below was fully
justified in awarding the life sentence. He
submits that there is absolutely no reason
for this Court to reduce the sentence and in
fact, the appellants ought to have been
convicted under Section 302 of IPC.

(v) that Quresha Bano (PW-1)
and Jamal Ahmad (PW-2) are firm in their
statement and Quresha Bano (PW-1) has
categorically stated that the deceased made
oral dying declaration before her and
narrated as to the manner in which she was
burnt by the accused-persons. State
counsel submits that minor contradiction
in the statement of these two witnesses are
required to be ignored, considering the fact
that they are rustic villagers.

12. We have heard the parties and
perused the record.

13. Smt. Quresha Bano (PW-1), is a
sister of the deceased and the informant.
She has stated that marriage of the
deceased was solemnized with accused
No.1 Shah Mohammad about 5 years back
and out of the wedlock, the couple has a
baby girl aged about 4 years. Accused
appellant No.1 and his other family
members used to demand Rupees One
Lakh from the deceased and for which she
was subjected to cruelty and harassment
by them. On the date of occurrence, her
sister was burnt by the appellants and she
died in the hospital after about 13 days.
She states that when she met the deceased,
she informed her that by pouring kerosene
oil on her, she was burnt by the accused
persons. This witness was subjected to
lengthy cross-examination including some
unnecessary
questions,
however
she
remained firm and has reiterated as to the
manner in which the deceased was burnt
by the accused persons. She has made it
very clear that while the deceased was
being taken to hospital, on the way, she
informed her that she (deceased) was burnt
by the accused persons.

14. Jamal Ahmad (PW-2), a resident
of the same vicinity where Quresha Bano
(PW-1) was residing along with accused
persons, has stated that the deceased was
sister of Quresha Bano (PW-1) and on the
date of occurrence, he had gone with
2 All. Shah Mohammad & Anr. Vs. State of U.P.
773
Quresha Bano (PW-1) to her sister's house
and they have brought the deceased in a
Marshal vehicle to Allahabad in a hospital.
He states that he did not had any talk with
the deceased, but the deceased was talking
to her sister and mother and she informed
them that she was burnt by the accused
persons. In the cross examination, he has
however stated that though the deceased
was talking to her sister and mother, in a
serious condition, but was only saying
them to save her.

15. Dr. Anupam Jaiswal (PW-3),
Director of the hospital where the
deceased was treated, has stated that dying
declaration of the deceased was recorded
by the Executive Magistrate on 17.09.2009
between 2.30 PM to 2.35 PM and that
before recording the same, he gave his
certificate that the deceased was in a fit
state of mind to make her dying
declaration. He states that the deceased
had suffered 70-80 per cent burn injury.

16. Rajendra Prasad Rai (PW-4) is a
Head Constable, who recorded the chik
FIR.
B.N.
Tiwari
(PW-5)
is
the
Investigating
Officer
who
has
duly
supported the prosecution case. Rajesh
Kumar (PW-6) is a second Investigating
Officer. Sunil Kumar (PW-7) conducted
the inquest. Dr. Prabhunath (PW-8)
conducted postmortem on the body of the
deceased.

17. Arun Kumar Srivastava (PW-9),
is the Executive Magistrate, who recorded
the dying declaration of the deceased. He
has stated that after receiving notice to
come in the hospital and record dying
declaration, at 2.20 PM, he reached to the
hospital, met Dr. Anupam Jaiswal (PW-3)
and after obtaining his certificate, recorded
the dying declaration of the deceased in
between 2.30 to 2.35 PM. He states that at
the
time
of
recording
the
dying
declaration, no other person was present
and all the relatives of the deceased were
asked to leave the said room.

18. Riyazuddin (DW-1) has stated
that Noor Mohammad (accused appellant
No.2) and Shah Mohammad (accused
appellant No.1) were residing separately
and that the deceased burnt herself in her
room.

19. Om Prakash (DW-2) has also
stated that Noor Mohammad and Shah
Mohammad were living separately and
that out of anger she set herself ablaze. He
has further stated that Shah Mohammad
(accused-appellant No.1) has made effort
to save the deceased.

20. Close scrutiny of the evidence
makes it clear, that the deceased was
subjected to cruelty for demand of dowry
and to fulfill the said desire, with the help
of other accused persons, the appellants on
16.09.2019
burnt
her
after
pouring
kerosene oil on her. While she was taken
to hospital by Quresha Bano (PW-1), she
made oral dying declaration before this
witness and has stated that she was burnt
by the accused persons including the
appellants. On the next day, her dying
declaration was recorded in the hospital,
vide
Ex.Ka.2,
wherein
she
has
categorically assigned the role of all the
accused persons including the appellants.
She has stated that she was caught hold by
her father-in-law Bafati alias Fakeere, her
nephew Noor Mohammad and sister-inlaw
Saida
Begum,
whereas
another
nephew Nazeer Mohammad set herself
ablaze. She has further stated that, at the
relevant
time,
her
husband
Shah
Mohammad (accused appellant No.1) was
774 INDIAN LAW REPORTS ALLAHABAD SERIES
standing there and he did not make any
effort to save her. According to the dying
declaration, it is the accused appellant
No.1 at whose instance the entire offence
has been committed by the accused
persons. Before recording the dying
declaration of the deceased, the Executive
Magistrate has obtained the certificate
from Dr. Anupam Jaiswal (PW-3) who has
categorically stated that the deceased was
in a fit state of mind to make the dying
declaration. Dying declaration of the
deceased reads as under:-

"C;ku Jherh rkfgjks ckuks iRuh
'kkgeqgEen mez 40 o"kZ yxHkx fuokfluh lyseiqj
xksyh ftyk Qrsgiqj cgyQ c;ku fd;k fd esjh
'kknh djhc 6 o"kZ iwoZ gqbZ FkhA ,d yM+dh 4 lky dh
gSA vkneh ekuiqj esa jgrk gSA dkj[kkuk IykfLVd dk
gS lmfn;k tkus ds fy, ,d yk[k :i;k ekax jgk
Fkk u nsus ij yM+kbZ gqbZA eq>s esjs 'olqj idM+s Fks]
tsBkuh ds yM+ds uwj eksgEen] tsBkuh idM+h Fkh] vkx
tsBkuh ds yM+ds uthj eksgEen us yxk;hA esjk
vkneh ogh [kM+k FkkA esjk vkneh ugh cpk;k og [kqn
gh yxok;k gSA

&lfVZfQdsV

c;ku lqudj rLnhd fd;kA

g0 viBuh;

vaxwBk fu'kkuh rkfgjk ckuks

17@09

&lfVZfQdsV

Dr. ANUPAM JAISWAL
 g0
viBuh;

Director

Dr.
ANUPAM JAISWAL

Shakuntala Hospital

Director

Allahabad-211001

Shakuntala Hospital

Reg. No.UPMC-33662"

21. Before we consider the dying
declaration made by the deceased, it would be
apposite to consider the legal position in
respect of dying declaration.

22. In State of Gujarat v. Jayrajbhai
Punjabhai Varu1, the Supreme Court held as
under:

"15. The courts below have to be
extremely careful when they deal with a dying
declaration as the maker thereof is not
available for the cross- examination which
poses a great difficulty to the accused person.
A mechanical approach in relying upon a
dying declaration just because it is there is
extremely dangerous. The court has to
examine a dying declaration scrupulously with
a microscopic eye to find out whether the
dying declaration is voluntary, truthful, made
in a conscious state of mind and without being
influenced by the relatives present or by the
investigating agency who may be interested in
the success of investigation or which may be
negligent
while
recording
the
dying
declaration.

16. In the case on hand, there are
two
sets
of
evidence,
one
is
the
statement/declaration made before the
police
officer
and
the
Executive
Magistrate and the other is the oral dying
declaration made by the deceased before
her father who was examined as PW-1. On
a careful scrutiny of the materials on
record, it cannot be said that there were
contradictions in the statements made
before the police officer and the Executive
Magistrate as to the role of the respondent
herein in the commission of the offence
and in such circumstances, one set of
evidence which is more consistent and
reliable, which in the present case being
one in favour of the respondent herein,
requires to be accepted and conviction
could not be placed on the sole testimony
of PW-1.

17. A number of times the
relatives
influence
the
investigating
agency
and
bring
about
a
dying
declaration.
The
dying
declarations
2 All. Shah Mohammad & Anr. Vs. State of U.P.
775
recorded by the investigating agencies
have to be very scrupulously examined
and the court must remain alive to all the
attendant circumstances at the time when
the dying declaration comes into being. In
case of more than one dying declaration,
the intrinsic contradictions in those dying
declarations are extremely important. It
cannot be that a dying declaration which
supports the prosecution alone can be
accepted while the other innocent dying
declarations have to be rejected. Such a
trend
will
be
extremely
dangerous.
However, the courts below are fully
entitled to act on the dying declarations
and make them the basis of conviction,
where the dying declarations pass all the
above tests.

18. The court has to weigh all
the attendant circumstances and come to
the independent finding whether the dying
declaration was properly recorded and
whether it was voluntary and truthful.
Once the court is convinced that the dying
declaration is so recorded, it may be acted
upon and can be made a basis of
conviction. The courts must bear in mind
that each criminal trial is an individual
aspect. It may differ from the other trials
in some or the other respect and, therefore,
a mechanical approach to the law of dying
declaration has to be shunned.

19. On appreciation of evidence
on record, we are of the considered view
that the dying declarations of the deceased
recorded by the police officer as well as
the
Executive
Magistrate
are
fully
corroborated and there is no inconsistency
as regards the role of the respondent herein
in the commission of offence. From a
perusal of the statement recorded by Bhiku
Karsanbhai, P.S.O., the thumb impression
of Rekhaben (since deceased) which had
been identified by her father-Sri Vala
Jaskubhai Suragbhai as also his crossexamination in which he admitted that
police had already come there and he had
identified her thumb impression and
Mamlatdar had gone inside to record
statement, there is no reason as to why
Rekhaben would give names of her
husband and her in- laws in the alleged
statement given to her father. A dying
declaration is entitled to great weight. The
conviction basing reliance upon the oral
dying declaration made to the father of the
deceased is not reliable and such a
declaration can be a result of afterthought.
This is the reason the Court also insists
that the dying declaration should be of
such a nature as to inspire full confidence
of the Court in its correctness. The Court
has to be on guard that the statement of
deceased was not as a result of tutoring,
prompting or a product of imagination.
The Court must be further satisfied that the
deceased was in a fit state of mind after a
clear opportunity to observe and identify
the assailants. Once the Court is satisfied
that
the
declaration
was
true
and
voluntary, undoubtedly, it can base its
conviction
without
any
further
corroboration. It cannot be laid down as an
absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The
rule requiring corroboration is merely a
rule of prudence.

20. The burden of proof in
criminal law is beyond all reasonable
doubt. The prosecution has to prove the
guilt
of
the
accused
beyond
all
reasonable doubt and it is also the rule
of justice in criminal law that if two
views are possible on the evidence
adduced in the case, one pointing to
the guilt of the accused and the other
towards his innocence, the view which
is favourable to the accused should be
adopted."
776 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In Gaffar Badshaha Pathan v.
State of Maharashtra2,it was held as
under:

"5. Dr. A.U. Masurkar was the
Chief Medical Officer of the hospital at
the relevant time. The High Court has held
that the recording of the dying declaration
and story stated therein apparently appears
to be false and concocted for the various
reasons noticed in the impugned judgment.
It has to be borne in mind that the fact
whether the dying declaration is false and
concocted has to be established by the
prosecution. It is not for the accused to
prove
conclusively
that
the
dying
declaration was correct and the story
therein was not concocted. The fact that
the statement of the deceased was recorded
at about 9.00 p.m. by the Head Constable
cannot be doubted though an attempt to
the contrary seems to have been made by
the prosecution. The statements of the
prosecution witnesses (PW 5 and PW 11)
also show that the statement was recorded
by the Head Constable. According to PW
5, it was only a show made by the Head
Constable of recording statement, since
according to the said witness, the deceased
was not in a position to speak at that time.
Even PW 11, a doctor in the hospital, has
deposed about the recording of the
statement by the Head Constable though
he has not formally proved the dying
declaration
but
has
certified
the
correctness of the endorsement of Dr. A.U.
Masurkar on the dying declaration. PW 11
was shown the dying declaration. He has
deposed that the certificate recorded on the
dying declaration is in the handwriting of
Dr. Masurkar, Chief Medical Officer of
the hospital. He has further deposed that
Dr. Masurkar is in the hospital since the
last 12 to 15 years and that he had degree
in MS and was estimated to be an honest
and expert surgeon of the area. One of the
reasons which had strongly weighed with
the High Court in rejecting the dying
declaration is that the endorsement of the
doctor is only about the deceased lady
being conscious and not that she was in a
fit condition to make the statement. The
High Court went into distinction between
consciousness
and
fitness
to
make
statement. On the facts of the present case,
we are unable to sustain the approach
adopted by the High Court. It is one thing
for an accused to attack a dying
declaration in a case where the prosecution
seeks to rely on a dying declaration against
an accused but it is altogether different
where an accused relies upon a dying
declaration in support of the defence of
accidental death. The burden on the
accused is much lighter. He has only to
prove reasonable probability. Under these
circumstances, the dying declaration could
not have been rejected on the ground that
it does not contain the endorsement of the
doctor of the fitness of the lady to make
the statement as the certificate of the
doctor only shows that she was in a
conscious state. The endorsement of the
doctor aforequoted is not only about the
conscious state of the lady but is that she
made the statement in a conscious state."

24. In P. Mani v State of
Tamilnadu3,
while
considering
the
suspicious dying declaration, it has been
held by the Apex Court that the conviction
can be based solely on the basis of dying
declaration alone, but the same must be
wholly reliable and trustworthy. Para 14 of
the said judgment reads thus:

"14. Indisputably conviction can
be recorded on the basis of dying
declaration alone but therefore the same
must be wholly reliable. In a case where
2 All. Shah Mohammad & Anr. Vs. State of U.P.
777
suspicion can be raised as regard the
correctness of the dying declaration, the
court before convicting an accused on the
basis thereof would look for some
corroborative evidence. Suspicion, it is
trite, is no substitute for proof. If evidence
brought on records suggests that such
dying declaration does not reveal the entire
truth, it may be considered only as a piece
of evidence in which event conviction may
not be rested only on the basis thereof. The
question as to whether a dying declaration
is of impeccable character would depend
upon several factors; physical and mental
condition of the deceased is one of them.
In this case the circumstances which have
been brought on records clearly point out
that what might have been stated in the
dying declaration may not be correct. If
the deceased had been nurturing a grudge
against her husband for a long time, she
while committing suicide herself may try
to implicate him so as to make his life
miserable. In the present case where the
Appellant has been charged under Section
302 of the Indian Penal Code, the
presumption in terms of Section 113A of
the Evidence Act is not available. In
absence of such a presumption, the
conviction and sentence of the accused
must be based on cogent and reliable
evidence brought on record by the
prosecution. In this case, we find that the
evidences are not such which point out
only to the guilt of the accused."

25. In Lakhan v. State of MP4, the
Supreme Court after discussing number of
judgments
on
the
point
of
dying
declarations summarized the law in this
regard, as under:

"20. In view of the above, the
law on the issue of dying declaration can
be summarized to the effect that in case,
the Court comes to the conclusion that the
dying declaration is true and reliable, has
been recorded by a person at a time when
the deceased was fit physically and
mentally to make the declaration and it has
not
been
made
under
any
tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an
eventuality
no
corroboration
is
required. In case, there are multiple dying
declarations and there are inconsistencies
between
them,
generally,
the
dying
declaration recorded by the higher officer
like a Magistrate can be relied upon,
provided that there is no circumstance
giving rise to any suspicion about its
truthfulness.
In
case,
there
are
circumstances wherein the declaration had
been made, not voluntarily and even
otherwise, it is not supported by the other
evidence, the Court has to scrutinize the
facts of an individual case very carefully
and take a decision as to which of the
declarations is worth reliance."

26. In Shudhakar v. State of MP5,
the Supreme Court held as under:

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

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

27. In Ramakant Mishra v. State of
UP6, the Supreme Court observed as
under:

"9. Definition of this legal
concept found in Black's Law Dictionary
(5th Edition) justifies reproduction:

"Dying
Declarations
-
Statements made by a person who is lying
at the point of death, and is conscious of
his approaching death, in reference to the
manner in which he received the injuries
of which he is dying, or other immediate
cause of his death, and in reference to the
person who inflicted such injuries or the
connection with such injuries of a person
who is charged or suspected of having
2 All. Shah Mohammad & Anr. Vs. State of U.P.
779
committed them; which statements are
admissible in evidence in a trial for
homicide (and occasionally, at least in
some jurisdictions, in other cases) where
the killing of the declarant is the crime
charged to the defendant. Shepard v. U.S.,
Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed.
196.

Generally, the admissibility of
such declarations is limited to use in
prosecutions
for
homicide;
but
is
admissible on behalf of accused as well as
for prosecution. In a prosecution for
homicide or in a civil action or proceeding,
a statement made by a declarant while
believing that his death was imminent,
concerning the cause or circumstances of
what he believed to be his impending
death is not excluded by the hearsay rule.
Fed. Evid.R. 804 (b) (2).

10. When a person makes a
statement while being aware of the
prospect that his death is imminent and
proximate, such a statement assumes a
probative
value
which
is
almost
unassailable,
unlike
other
statements
which he may have made earlier, when
death was not lurking around, indicating
the cause of his death. That is to say that a
person might be quite willing to implicate
an innocent person but would not do so
when death is knocking at his door. That is
why a Dying Declaration, to conform to
this unique specie, should have been made
when death was in the contemplation of
the
person
making
the
statement/declaration."

28. Applying the above principles of
law with the facts of the case and on
appreciation of evidence on record, we
have no hesitation to hold that the dying
declaration was recorded in accordance
with law and there is no infirmity in the
same. Further there is no inconsistency in
the dying declaration and the same inspire
confidence of this Court.

29. Dying declaration makes it very
clear as to the manner in which the
deceased was burnt by the appellants. The
mere fact that the appellant No.1 was
standing there and had not taken any
active participation in the actual act will
not give him any benefit to him. It has
come in the dying declaration that the
entire act has been done at his instance and
at his dictates, and he did not make any
effort to save his wife. Had the appellant
No.1 was so innocent, he would have
definitely made some effort to save his
wife, but instead of doing so, he kept
quite. As already stated that apart from the
dying
declaration
recorded
by
the
Executive
Magistrate,
oral
dying
declaration was also made by the deceased
before
Quresha
Bano
(PW-1)
and,
therefore, role assigned to the appellants
has been duly proved by the prosecution.
We find no force in the argument of the
defence that evidence on record is not
sufficient to convict the appellant.

30. Considering all the above aspects
of the case, we are of the view that the trial
court was justified in holding the appellant
guilty for committing the murder of the
deceased.

31. The next question, which arises
for consideration of this Court, is whether
the sentence awarded to the appellants can
be reduced or not.

32. Section 304-B of IPC reads as
under:-

"304-B. Dowry death.--
(1)
Where the death of a woman is caused by
any burns or bodily injury or occurs
780 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise
than
under
normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused
her death.

Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life."

33. A bare reading of aboresaid
Section makes it clear that imposition of
life imprisonment is not mandatory under
Section 304-B of IPC and the minimum
sentence, which has been provided in the
said Section, is 7 years.

34. If we apply the above principles
of law in the present case, what emerges is
that the deceased was brutally burnt by the
accused persons and specific role has been
assigned to each one of them.

35.

Learned
counsel
for
the
appellants has placed reliance on the
following judgments to contend that the
Apex Court has awarded fixed term
sentence to the accused persons instead
awarding life sentence:-

(i) Hari Om Vs. State of
Haryana & Another7; (ii) Hem Chand
Vs. State of Haryana8; (iii) Amar Singh
Vs. State of Rajasthan9; (iv) Shanti Vs.
State of Haryana10 (v) Sanjay Kumar
Singh
Vs.
State
of
Delhi11;
(vi)
Donthula Ravindranath alias Ravinder
Rao Vs. State of Andhra Pradesh12;
(vii) Ranjit Singh Vs. State of Punjab13;
(viii) Sunil Dutt Sharma Vs. State (Govt
of NCT of Delhi)14; (ix) Pradeep Kumar
Vs. State of Haryana15 (x) Banarsi Dass
& others Vs. State of Haryana16 and (xi)
Smt. Rama Devi Vs. State of U.P.17

36. The principles laid down by the
Supreme Court in the cases relied on by
the counsel for the appellants do not apply
to the facts of the present case. Present is
not a case of suicide or unnatural death by
some other means, but if the facts of the
present case are seen, the case may come
within the ambit of Section 302 of IPC,
where the minimum sentence which has
been provided is a life sentence. The
manner, in which the deceased was burnt,
shows brutality of the offence and we are
of the considered view that sentence of life
imprisonment imposed by the Court below
is fully justified. In the facts and
circumstances of the case, we find it
difficult to reduce the sentence.

37. The appeal has no substance. It is
accordingly dismissed.
----------
(2020)02ILR A780

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Jail Appeal No. 3490 of 2016

Ashok @ Gore Lal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel
for
the
Appellant: