# Shyam Mishra (In Jail) v. State of U.P

- **Citation:** (2022) 7 ILRA 1215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-08
- **Case number:** Criminal Appeal No. 2542 of 2011
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-mishra-in-jail-v-state-of-u-p-48752
- **Pages:** 23

## Headnote

Criminal Law - Indian Evidence Act, 1872-
Section
32-
The
only
evidence
that
remains against the appellant is the dying
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration-
A
dying
declaration
is
admissible under Section 32 of the Indian
Evidence Act as an exception to the
general rule against hearsay evidence. The
principle of admissibility of a dying
declaration is based on a maxim "Nemo
Moriturus Praesumitur Mentire" i.e. a man
will not meet his maker with a lie in his
mouth. Even an uncorroborated dying
declaration can be the basis of conviction,
if it is found truthful and unblemished.

Settled law that conviction can be secured solely
on the basis of the dying declaration provided
the same is found to be truthful, cogent and
credible by the court.

Criminal Law - Indian Evidence Act,
1872- Section 32- Assuming that the
dying
declaration
was
recorded
in
complete
secrecy
to
maintain
its
confidentiality, it is quite strange that a
daughter, who has been admitted in the
hospital with burn injuries, would not
inform her father for five days about the
incident, particularly, when there is
evidence that her father (PW 1), the
informant, and other family members
had met her several times in the
hospital. This fact itself makes the dying
declaration doubtful.

Where the deceased did not inform her
parents and relatives for several days about
the occurrence, as stated in the dying
declaration, then the said non-disclosure
would render the dying declaration doubtful.

Criminal Law - Indian Evidence Act,
1872- Section 32- The first information
report sets up dowry as a motive for the
crime whereas in the dying declaration,
there is no mention of dowry but
something which finds no mention in the
FIR,
this
creates
a
doubt
on
the
truthfulness of the dying declaration.

The mentioning of a motive in the dying
declaration different from the one alleged in
the FIR , would render the dying declaration
doubtful.

Criminal Law - Indian Evidence Act,
1872- Section 32- The deceased was not
only in great pain but was suffering from
breathing trouble as well hence oxygen
inhalation was also advised. In such a
situation whether she was in a fit state
of mind or in a delusional state is
difficult
to
fathom.
In
such
circumstances,
acting
on
the
dying
declaration,
which
finds
no
corroboration from the testimony of
other
witnesses,
would
be
unsafe,
particularly,
when
it
makes
certain
allegations which are at variance with
the prosecution case- it would be unsafe
to rely upon dying declaration of such a
person, particularly, when it has no
corroboration from other evidences.

An uncorroborated dying declaration of its
maker whose mental fitness is doubtful cannot
be safely relied upon by the courts.

Criminal Law - Indian Evidence Act,
1872- Section 32- The dying declaration
appears suspicious and highly doubtful
more so, when it is not reco

## Text

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7 All. Shyam Mishra Vs. State of U.P.
1215
strong suspicion. In these circumstances,
prompt lodging of a named FIR by itself
would be no guarantee for the credibility of
the testimony of PW-2, particularly when,
according to the testimony of PW-1 (the
informant), the FIR was on the basis of
information provided by Dharmoo, who
has not been examined. In addition to
above, PW-1 at the fag end of his
deposition stated that the name of the
appellant was not disclosed to him.

25. In view of the analysis above,
considering that it is a case of night incident,
the prosecution has examined a solitary eye
witness, whose testimony is not of a stellar
quality; that two gunshots were fired in quick
succession, not preceded by altercation, it
would have been a split second affair; that the
witnesses arrived at the spot from different
places after hearing gunshots while they were
within the confines of their own home,
thereby taking time to arrive; that initial
report was of seeing the accused while they
were scaling the wall to escape therefore,
bearing in mind that the presence of light
outside the room has not been satisfactorily
proved, there was very little scope for the
witnesses to recognize the accused. Further,
the statement of PW-2 that he witnessed
firing of gunshot by the appellant on the
abdomen of the deceased is for the first time
in court and is a gross improvement from his
previous statement. Consequently, keeping in
mind that it is a case based on a single eye
witness testimony who is not wholly reliable
as discussed above, we are of the considered
view that the appellant is entitled to the
benefit of doubt.

26. For all the reasons above, the
accused-appellant Rameshwar is extended the
benefit of doubt as has been extended to coaccused Vinod by the trial court. The appeal
is allowed. The judgment and order of the
trial court convicting and sentencing the
appellant Rameshwar is set aside. The
accused-appellant is acquitted of the charge
for which he has been tried and convicted. It
appears from the record of this appeal that
though, earlier, the appellant was released on
bail but, on account of absence of his counsel
non bailable warrants were issued against the
appellant and, in pursuance whereof, the
appellant has been taken into custody.
Accordingly, the appellant-Rameshwar shall
be released forthwith, subject to compliance
of the provisions of Section 437-A CrPC to
the satisfaction of the trial court.

27. Let a copy of this order be
forwarded to the court below along with the
record for information and compliance.
----------
(2022)07ILR A1215
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

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

Criminal Appeal No. 2542 of 2011
with
Criminal Appeal No. 2173 of 2011
with
Criminal Appeal No. 2541 of 2011

Shyam Mishra ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri L.M. Singh, Sri K.Kumar Tripathi

Counsel for the Respondent:
G.A.

Criminal Law - Indian Evidence Act, 1872-
Section
32-
The
only
evidence
that
remains against the appellant is the dying
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration-
A
dying
declaration
is
admissible under Section 32 of the Indian
Evidence Act as an exception to the
general rule against hearsay evidence. The
principle of admissibility of a dying
declaration is based on a maxim "Nemo
Moriturus Praesumitur Mentire" i.e. a man
will not meet his maker with a lie in his
mouth. Even an uncorroborated dying
declaration can be the basis of conviction,
if it is found truthful and unblemished.

Settled law that conviction can be secured solely
on the basis of the dying declaration provided
the same is found to be truthful, cogent and
credible by the court.

Criminal Law - Indian Evidence Act,
1872- Section 32- Assuming that the
dying
declaration
was
recorded
in
complete
secrecy
to
maintain
its
confidentiality, it is quite strange that a
daughter, who has been admitted in the
hospital with burn injuries, would not
inform her father for five days about the
incident, particularly, when there is
evidence that her father (PW 1), the
informant, and other family members
had met her several times in the
hospital. This fact itself makes the dying
declaration doubtful.

Where the deceased did not inform her
parents and relatives for several days about
the occurrence, as stated in the dying
declaration, then the said non-disclosure
would render the dying declaration doubtful.

Criminal Law - Indian Evidence Act,
1872- Section 32- The first information
report sets up dowry as a motive for the
crime whereas in the dying declaration,
there is no mention of dowry but
something which finds no mention in the
FIR,
this
creates
a
doubt
on
the
truthfulness of the dying declaration.

The mentioning of a motive in the dying
declaration different from the one alleged in
the FIR , would render the dying declaration
doubtful.

Criminal Law - Indian Evidence Act,
1872- Section 32- The deceased was not
only in great pain but was suffering from
breathing trouble as well hence oxygen
inhalation was also advised. In such a
situation whether she was in a fit state
of mind or in a delusional state is
difficult
to
fathom.
In
such
circumstances,
acting
on
the
dying
declaration,
which
finds
no
corroboration from the testimony of
other
witnesses,
would
be
unsafe,
particularly,
when
it
makes
certain
allegations which are at variance with
the prosecution case- it would be unsafe
to rely upon dying declaration of such a
person, particularly, when it has no
corroboration from other evidences.

An uncorroborated dying declaration of its
maker whose mental fitness is doubtful cannot
be safely relied upon by the courts.

Criminal Law - Indian Evidence Act,
1872- Section 32- The dying declaration
appears suspicious and highly doubtful
more so, when it is not recorded in a
question and answer form and does not
appear to be in the language of the
deceased. We may hasten to clarify that
though it is not a rule that a dying
declaration cannot be accepted unless it
is in the own language of the declarant
or is in a question answer form. But
where there is a serious challenge to the
fitness of its maker at the time of
recording and there are circumstances
that
render
the
dying
declaration
doubtful,
non-recording
of
the
declaration in the language of the
deceased and in a question answer form
is an additional circumstance throwing
doubt on its genuineness.

Where the fitness of the maker of the dying
declaration is doubtful, the dying declaration is
not corroborated from other evidence, then not
recording the dying declaration in the language
of the deceased and in question answer form,
would further render the dying declaration
doubtful.
7 All. Shyam Mishra Vs. State of U.P.
1217
Criminal Law - Indian Evidence Act, 1872-
Section 32 - The dying declaration (Ext.
Ka-2) was recorded after five days of
admission of the deceased in the hospital,
which is against the guidelines laid down
by the Apex Court in the case of Kushal
Rao Vs State of Bombay (supra) wherein it
has been held that the same should
recorded at the earliest.

Settled law that dying declaration has to be
recorded at the earliest available opportunity.

Criminal Law - Indian Evidence Act, 1872-
Section 32-Number of persons of the
neighbourhood had gathered at the place
of incident but the prosecution did not
examine any of them. Had they been
examined, a correct picture of the case
could be had and the doubts shrouding
the dying declaration might have been
dispelled both in terms of the condition of
its maker and the truthfulness of its
contents-No doubt, a dying declaration is
a valuable piece of evidence but it has to
be
considered
as
another
piece
of
evidence and has to be judged in the light
of surrounding circumstances and with
reference to the principles governing the
weighing evidence and if it is not found
wholly trustworthy or truthful, it should
not form the sole basis of conviction
without corroboration.

Not examining the neighbours and other
independent
witnesses
where
the
dying
declaration is doubtful and the same remaining
uncorroborated by other evidence cannot lead
the court to secure the conviction of the
accused solely on the basis of such dying
declaration.

Criminal Law - Indian Evidence Act, 1872 -
Sections
3
&
32-
The
husband
of
deceased, was examined as DW-2. He had
admitted the deceased in the hospital. He
stated that his wife (deceased) had
stopped
speaking
after
first
day
of
admission
as
her
condition
started
deteriorating. Prosecution failed to give
any suggestion to discredit his testimony.
Therefore, from this angle too, the dying
declaration (Ext. Ka-2) appears doubtful
because if the condition of the deceased
had deteriorated so much by the second
day of the incident, how could her dying
declaration be recorded on the 6th dayThe law can be summarised to the effect
that the evidence of a hostile witness
cannot be discarded as a whole, and
relevant
parts
thereof
which
are
admissible in law, can be used by the
prosecution or the defence.

Settled law that the testimony of the witnesses
of defence have to be given the same weight as
the witnesses of prosecution and therefore the
relevant and legally admissible parts of the
testimony of a hostile witness can be taken into
consideration by the court. (Para 48, 54, 56, 57,
60, 64, 65, 66, 67, 68, 70, 71)

Criminal Appeals Allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Khushal Rao Vs St. of Bom. AIR 1958 SC 22

2. Paniben Vs St. of Guj. (1992) 2 SCC 474

3. Jagbir Singh Vs St. (NCT of Delhi) (2019) 8
SCC 779

4. Umakant & anr. Vs St. of Chhattis. 2014 7
SCC 405

5. Sampat Babso Kale & anr. Vs St. of Maha.
(2019) 4 SCC 739

6. Jayamma & anr. Vs the St. of Kar. (2021) 6
SCC 213

7. Puran Chand Vs St. of Har. (2010) 6 SCC 566

8. Dudh Nath Pandey Vs St. of U.P. AIR 1981 SC
911

9. Ramesh Harijan Vs St. of U.P (2012) 5 SCC
777

10. C. Muniappan Vs St. of T.N. (2010) 9 SCC
567

11. Himansh Vs St. (NCT of Delhi) 2011 (2) SCC
36
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Sameer Jain, J.)

1. As these three appeals arise out of
common
judgment
and
order
dated
04.04.2011 passed by Sessions Judge,
Ramabai Nagar in connected Session Trial
Nos. 228 of 2008 and 232 of 2008, they
have been heard together and are being
decided by a common judgment and order.

2. Criminal Appeal Nos. 2542 of
2011, 2173 of 2011 and 2541 of 2011 are
against the judgment and order dated
04.04.2011 passed by Sessions Judge,
Ramabai Nagar in Sessions Trial Nos. 228
of 2008 and 232 of 2008, by which, the
appellants have been convicted under
Section 302 read with Section 34 IPC and
awarded imprisonment for life with a fine
of Rs. 10,000/- each and default sentence of
six months additional imprisonment.

3. We have heard Sri Kamlesh Kumar
Tripathi, learned counsel for the appellants
in all the three appeals; Sri J.K. Upadhyay,
learned AGA for the State and have
perused the record.

4. The prosecution story, in brief, is
that on 20.10.2007 Lalla (PW-1) lodged an
FIR against the appellants and four others
by alleging that on 08.06.2006 his daughter
Reeta (deceased) was married to Ram
Mishra. In the marriage, PW-1 gave lot of
dowry but her in-laws harassed her for a
motorcycle. Informant's daughter on return
to her paternal home, informed that her inlaws used to harass and assault her for
motorcycle and if their demand is not met,
they will kill her. As a result, PW-1 spent
additional Rs. 20,000/- at the time of Bidai
of her daughter. On 01.10.2007, his
daughter was badly beaten by her in-laws
and her husband Ram Mishra brought her
to her native village. Thereafter, on
11.10.2007,
the
husband
of
Reeta
(deceased) along with his brothers Shyam
Mishra (appellant of Criminal Appeal No.
2542 of 2011) and Vinay came to the
village to fetch informant's daughter
(Reeta) and Reeta (the deceased) went with
them. On 12.07.2007, Siddh Nath (PW-3),
elder son-in-law of the informant (PW-1),
arrived at the matrimonial home of Reeta
(the deceased), where, he witnessed that on
the instigation of Pramod (Nandoi of
deceased), Ram Mishra (husband of the
deceased), Smt. Sarojani Devi (mother-inlaw of the deceased/appellant in Criminal
Appeal No. 2541 of 2011), sister-in-laws of
the
deceased,
namely,
Smt.
Rashmi
(appellant in Criminal Appeal No. 2173 of
2011) and Rubi, brothers-in-law of the
deceased,
namely,
Shyam
Mishra
(appellant in Criminal Appeal No. 2542 of
2011) and Vinay, were assaulting Reeta
(the
deceased)
and
Shyam
Mishra
(appellant in Criminal Appeal No. 2542 of
2011) poured kerosene oil on Reeta and
ablazed her. By the time the fire could be
doused, Reeta got burnt extensively. Later,
on threats extended by the police, the
husband of the deceased along with Siddh
Nath (PW-3) took Reeta to Halet hospital
and got her admitted there; where, on
18.10.2007, at about 9.30 PM, Reeta
expired.

5. During investigation, Investigating
Officer recorded the statement of witnesses
and collected evidence in respect of the
treatment provided to the deceased in the
Halet hospital. The Investigating Officer
also copied the dying declaration (Ext. Ka2) of the deceased recorded by Madan
Singh Garbiyal, ACM 5th Kanpur City
(PW-4) and submitted charge-sheet against
the appellants, namely, Shyam Mishra
(Devar of the deceased), Rashmi (Nanand
of the deceased) and Sarojni (mother-in-
7 All. Shyam Mishra Vs. State of U.P.
1219
law of the deceased), under Sections 498A,
304B IPC and 3⁄4 D.P. Act. No charge-sheet
was filed against rest of the accused
including deceased's husband Ram Mishra,
apparently,
because
there
was
no
accusation against them by the deceased in
her dying declaration (Ext. Ka-2). In
between, upon information regarding death
of deceased, inquest report (Ext. ka-4) was
prepared and autopsy of the body of the
deceased was conducted on 19.10.2007 at
about 7.10 PM. In the autopsy report (Ext.
Ka-12), PW-6 (the Autopsy Surgeon),
noticed following ante-mortem injuries:-

"Burn superficial to deep, present
all over the body except soles of both feet.
Pus pockets present all over the body."

According
to
the
doctor,
deceased
died
due
to
shock
and
septicaemia due to ante mortem burn
injury.

6. After taking cognizance on the
charge-sheet, the case was committed to the
court of Session and, on 21.01.2009, trial
court framed the charges against the
appellants under Sections 498A, 304B IPC
and 3⁄4 D.P. Act. Later, on 23.09.2010, an
alternate charge under Section 302 IPC
read with Section 34 IPC was also framed
against the appellants.

7. During trial, prosecution examined
13 witnesses. Out of 13 witnesses, Lalla,
the informant (PW-1), Neeraj Mishra (PW2) and Siddh Nath (PW-3) are witnesses of
fact; PW-4 recorded the dying declaration;
and rest are formal witnesses. After
prosecution evidence was closed, trial court
recorded the statement of appellants under
Section 313 Cr.P.C. All the appellants
denied the allegations levelled against them
and stated that deceased sustained burn
injuries accidentally while cooking food.
Two defence witnesses, namely Daya
Shanker Tiwari (DW-1) and Ram Mishra
(DW-2), the husband of the deceased, were
also examined. The trial court found
appellants
guilty
and
convicted
and
sentenced them under Section 302/34 IPC.

Submissions
advanced
on
behalf of the appellants

8. Learned counsel for the appellants
submitted
that
during
trial
all
the
prosecution witnesses of fact turned hostile
and they did not support the version of the
FIR. The only evidence against the
appellants is the dying declaration (Ext.
Ka-2), dated 17.10.2007, recorded by ACM
5th Kanpur City (PW-4). Learned counsel
for the appellants submitted that as the sole
evidence against the appellants remained
the dying declaration, it was necessary for
the trial court to look for its corroboration
and since the trial court convicted the
appellants
without
looking
for
its
corroboration, its judgment is liable to be
set aside. He also submitted that the
deceased
had
sustained
95%
burns,
therefore, it was highly improbable that she
would be in a position to give a declaration,
that too, after five days. Hence, it will not
be safe to act upon such dying declaration,
particularly, in absence of corroboration.
He further submitted that the deceased was
admitted in the hospital on 12.10.2007,
whereas her dying declaration was recorded
on 17.10.2007 i.e. after five days. The
prosecution
failed
to
provide
any
explanation
in
this
regard.
In
such
circumstances the possibility of the dying
declaration being tutored cannot be ruled
out. Learned counsel for the appellants also
submitted that from the testimony of
prosecution witnesses it is apparent that
deceased was not in a fit condition to give
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
dying declaration. Moreover, there is no
disclosure in the dying declaration as to
what was the motive for the appellants to
eliminate the deceased. In absence of
disclosure of motive the dying declaration
appears completely untrustworthy yet, the
trial court, without considering all these
aspects, treated the dying declaration as
gospel truth. It is submitted that the trial
court did not properly consider the
testimony of defence witnesses and thereby
erred in law as well as facts and as such as
judgment is liable to be set aside.

Submissions
advanced
on
behalf of the State

9. Per contra, learned AGA submitted
that the trial court rightly convicted the
appellants; that the law is well settled that
even uncorroborated dying declaration can
on its own form the basis of conviction if it
is found truthful and blemish free; and that
in the present case dying declaration was
recorded by Executive Magistrate who was
examined before the trial court and proved
the same. Moreover, the doctor provided a
certificate of fitness of the deceased.
Therefore, dying declaration (Ext. Ka-2)
can safely be relied upon to record
conviction even without corroboration.
Learned AGA also submitted that even if
deceased sustained 95% burn injuries she
could give the dying declaration therefore,
merely on the quantum of burns, dying
declaration cannot be discarded. Learned
AGA submitted that lodging of the FIR is
duly proved and since it alleges that the
appellants as well as other accused persons
were harassing the deceased for want of
dowry, therefore, even if, during trial, the
informant and other prosecution witnesses
did not support the version of the FIR, it
can be taken into consideration as a
corroboratory material. The learned AGA
submitted that the appeals filed by the
appellants are, therefore, liable to be
dismissed.

10. We have given our anxious
consideration to the rival contentions and
have perused the record.

11. Before analysing the arguments of
both sides, it would be apposite to notice
the prosecution evidence, in brief.

PROSECUTION EVIDENCE.

12. Lalla, the informant, has been
examined as PW-1. He is the father of the
deceased. PW-1 stated that the marriage of
his
daughter
Reeta
(deceased)
was
performed with Ram Mishra about two and
half years before. He stated that none of the
appellants
or
their
family
members
demanded a motorcycle in dowry and they
never harassed his daughter (the deceased).
PW-1 also stated that his daughter
complained
to
him
regarding
her
harassment or dowry demand. PW-1 stated
that on 1.10.2007 neither the appellants nor
anybody else assaulted the deceased and
that on 11.10.2007 only Shyam Mishra
(appellant in Criminal Appeal No. 2542 of
2011) had come for her Bidai. PW-1 stated
that he is not aware whether his elder sonin-law, namely, Siddh Nath (PW-3), had
gone to the matrimonial home of his
daughter on the day following her Bidai.
PW-1 also stated that PW-3 did not inform
him (PW-1) that the appellants assaulted
the deceased at the instigation of her
Nandoi, namely, Pramod. PW-1 stated that
PW-3 also did not inform that appellant
Shyam Mishra (appellant of Criminal
Appeal No. 2542 of 2011) poured kerosene
oil and set her ablaze. PW-1 stated that his
daughter (the deceased) was admitted in
Hallet Hospital by his son-in-law Ram and
7 All. Shyam Mishra Vs. State of U.P.
1221
was provided medical treatment and she
died there on 18.2.2007 at about 9.30 PM.
PW-1 stated that appellant Shyam Mishra
(the appellant of Criminal Appeal No. 2542
of 2011) had informed him about his
daughter's death whereafter he arrived at
Hallet Hospital. PW-1 stated that his
daughter neither informed him nor any
member of his family that the appellants or
any other member of her husband's family
demanded a motorcycle in dowry or had
harassed her in that regard or that Shyam
Mishra (the appellant in Criminal Appeal
No.2542 of 2011) poured kerosene oil on
her and set her ablaze.

PW-1 further stated that the written
report (Ext. Ka-1) was written by Neeraj
Mishra (PW-2) which was not read over to
him though he had put his signature on it.
PW-1 stated that after inquest and autopsy his
daughter was cremated by her husband-Ram.
At this stage, prosecution declared PW-1
hostile
and
requested
for
his
crossexamination, which was accepted.

13. During cross-examination, PW-1
was confronted with his statement recorded
under Section 161 Cr.P.C. but PW-1 stated
that he never gave any such statement to the
Investigating Officer. PW-1 also stated that
he did not dictate the written report to Neeraj
Mishra (PW-2) and that PW-2 did write the
report at the instance of the villagers. PW-1
also stated that before taking his signature,
written report was not read over to him. PW1 denied the suggestion that due to
compromise, he is giving false statement. He
also stated that he is not aware whether a
dying declaration of his daughter (deceased)
was recorded in the Hospital or not.

14. The defence also cross-examined
PW-1. In his cross-examination at the
instance of defence, PW-1 stated that written
report (Ext.Ka-1) was not written before him
and that he put his signature on a plain paper.
He also stated that when he had put his
signature on a plain paper his daughter was
alive. PW-1 stated that when he put his
signature on a plain paper he was told that
this paper would be used in the Hospital. PW1 stated that Chhunnu is his son and not
brother. He added neither he was in a position
to give motorcycle nor his son-in-law Ram
(husband of the deceased) was in a position
to fill petrol. He stated that he had never
witnessed his son-in-law Ram driving a
motorcycle. He also stated that the accused
persons had informed him that his daughter
Reeta (deceased) had sustained burn injuries
while cooking food. He also stated that on the
date of the incident he had arrived in the
Hospital and his daughter had informed him
that she sustained burn injuries while cooking
food. PW-1 stated that after first day of her
admission in Hospital, his daughter was not
in a position to speak and could communicate
through gestures only. He stated that the
written report (Ext. Ka-1) is false and that his
daughter
Reeta
(deceased)
accidentally
sustained burn injuries while cooking food.

15. Neeraj Mishra PW-2. He is the
scribe of the FIR. He stated that on 20.10.2007
at about 8-10 PM when he was at his shop his
relative Lalla (PW-1) and member of his
family came. PW-2 wrote the report on the
dictation of Chhunnu (not examined), the son
of Lalla (PW-1). He stated that Lalla (PW-1)
was also present but not near by and that the
report was not read over to him (PW-1) and
that the signature of Lalla (PW-1) was already
there
on
the
paper.
PW-2,
however,
recognized his own signature on the written
report (Ext. Ka-1) and affirmed that the report
was written by him.

16. In his cross-examination, PW-2
stated that in respect of the written report
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
(Ext. Ka-1) he had no dialogue with Lalla
(PW-1). He reiterated that the report was
written at the instance of Chhunnu and
villagers. He reiterated that Lalla (PW-1)
had not put his signature on the report in
his presence.

17. PW-2 added that Chhunnu is
brother and not uncle of Reeta. He stated
that on 13.10.2007 i.e. next day of the
incident, he visited the hospital to see Rita
and noticed that people were talking to
Reeta (deceased) but he did not talk with
her. He added that when he visited the
hospital after the second day, Reeta
(deceased) was not in a condition to speak.

18. Siddh Nath PW-3. He is elder
son-in-law of the informant (PW-1) and
brother-in-law (jija) of the deceased. PW3 stated that he use to often visit the
matrimonial home of the deceased. Her
marriage
was
performed
with
Ram
Mishra about three and a half years ago.
Accused Shyam Mishra is younger
brother of Ram Mishra; that Shyam
Mishra neither demanded a motor cycle
nor harassed
the
deceased
in
that
connection.
PW-3
stated
that
on
1.10.2007, he neither went to Chaubepur
to fetch medicine nor he visited the
matrimonial home of the deceased. He
further stated that he did not witness the
appellant- Shyam (appellant No. 2 in Crl.
Appeal No. 2542 of 2011) pouring
kerosene on the deceased and setting her
ablaze. PW-3 stated that in the evening he
received information that Rita (deceased)
has sustained burn injuries and has been
admitted in Hallet Hospital. He stated
that he had no conversation with the
deceased in the hospital; and that Shyam
Mishra (appellant in Criminal Appeal No.
2542 of 2011) and his family members
did not ablaze her on account of nonfulfilment of motorcycle demand. At this
stage, prosecution declared PW-3 hostile
and sought permission to cross-examine
him, which was granted.

19. In his cross examination, PW-3
was confronted with his earlier statement
recorded under Section 161 Cr.P.C.,
however, PW-3 denied having given any
such
statement
to
the
investigating
Officer.

20.

Thereafter
defence
crossexamined PW-3. In this cross-examination,
PW-3 stated that both sides were very poor.
Neither informant side was in a position to
give motorcycle nor the accused side was
in a position to fill petrol. PW-3 also stated
that when he initially went to the hospital,
the deceased informed him that she had
sustained injuries while cooking food.
Later, whenever he visited the hospital, he
found Rita (deceased) not in a fit condition
to speak. He then clarified that she could
speak in soft tones and sometimes she
could not even speak but finally on the day
she died, she had stopped speaking.

21.

Madan
Singh
GarbiyalAdditional City Magistrate, Kanpur City
has been examined as PW-4. He stated
that on 17.10.2007, he was posted as
ACMM, Kanpur. He recorded the dying
declaration of Rita Mishra (deceased) in
L.R. Hospital. PW-4 proved the dying
declaration as Ext. Ka-2. He stated that at
the time of recording the dying declaration,
Dr. S.B. Mishra (PW-5) was present and
had certified that the deceased was in a fit
condition to make her declaration. He
stated that the dying declaration started at
6:55 pm and was completed at 7:35 pm.
PW-4 stated that after completing the
recording again certificate of the doctor
was taken. He stated that during her
7 All. Shyam Mishra Vs. State of U.P.
1223
declaration, deceased was in a fit condition
and that the statement made by her was
read over to her.

22. In his cross-examination, PW-4
stated that the doctor provided a second
certificate
of
fitness
before
thumb
impression of the declaration was taken. He
stated that as the doctor had issued the
certificate he believes that the deceased
was fit. He stated that the body of the
deceased was burnt and bandaged. He
could not recollect whether the face of the
deceased was burnt or not. PW-4, however,
stated that there was no bandage on the
face of the deceased. PW-4 stated that he
wrote the declaration by putting questions
to the deceased and not at one go. He stated
that his statement was not recorded by the
Investigating Officer. PW-4, however,
denied the suggestion that a false statement
was recorded while sitting in the office. He
also denied the suggestion that deceased
was not in a fit condition to give the
statement.

On 30.1.2010, PW-4 was recalled
for re-examination. In his re-examination
PW-4 stated that the deceased died on
18.10.2007 at about 9:30 pm and he
prepared the inquest report. He proved the
inquest report as Ext. Ka-4. In his crossexamination, PW-4 stated that only once he
received information for recording the
dying declaration and on first information
he went to record the dying declaration
(Ext. Ka-2). He also stated that in the dying
declaration he took the impression of the
left toe of the deceased as both her hands
were burnt.

23. Dr. S. B. Mishra PW-5. He is the
emergency Medical Officer Officer posted
at Lala Lajpat Rai Hospital, Kanpur. He
stated that on 12.10.2007 he was posted at
the hospital. At 1:05 pm, he examined the
injured (Reeta) who was brought by her
husband. On examination it was noticed:-

"General examination:- general
condition-under observation; pulse rate-not
recordable; breathing rate 28 per minute;
blood
pressure-not
recordable.
Heart
condition
was
alright.
Stomach
was
distended.

The patient was conscious but
irritable. On inquiry, it was informed that
about 1 and 1/2 hours before she had
sustained burn injuries. The patient was
95% burnt and was complaining of pain
and burning sensation.

Local examination:- a superficial
to deep burns present all over the face,
head, body on both front and back
excluding both feet, both soles and part of
lower chest. Line of redness present. Skin
had peeled off at some places. Blisters were
also present at some places. Hair on the
head were singed."

PW-5 stated that injured was
admitted in the hospital as a case of
Thermal Burn injuries and was placed
under the treatment of Dr. R.K. Singh (PW11). According to PW-5 all the injuries
were fresh and caused due to burns and
they could have been sustained due to dry
as well as moist heat. PW-5 proved the
injury report of the deceased as Ext. Ka-10.
He further stated that on 12.10.2007
information was sent to the Magistrate for
recording of the dying declaration of Rita
Mishra (deceased) and, thereafter, on
13.10.2007 a reminder was sent. PW-5
stated that after recording of dying
declaration, he made an endorsement that
on 17.10.2007 dying declaration of the
injured was recorded by Mr. Madan Singh
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
Garbiyal A.C.M. (5th). PW-5 also proved
the information letter as Ext. Ka-11.

PW-5 further stated that on
17.10.2007 at 6:55 PM he issued a
certificate
that
Smt.
Reeta
Mishra
(deceased) was fully conscious and fit to
give dying declaration. PW-5 stated that
after recording of the dying declaration the
impression of the left toe of the deceased
was taken and, thereafter he again certified
the fitness of Smt. Rita Mishra w/o Ram
Mishra to the effect that during the
recording of dying declaration she was fit
and conscious.

24. In his cross-examination, PW-5
stated that when a dying declaration is
recorded
only
the
Doctor
and
the
Magistrate are present. He denied the
suggestions that the Magistrate had been
coming but the dying declaration was not
recorded; and that the dying declaration
was not recorded in the hospital. He also
denied the suggestion that he issued wrong
certificate and that the deceased was not in
a fit condition to give her declaration. PW5 further stated that septicaemia can
commence within 36 hours or 2 days of
receiving injury. He stated that ordinarily a
person takes 3 to 4 days to die after
commencement
of
septicaemia.
PW-5
stated that there is no difference between
thermal burns and kerosene burns. He
stated that on 12.10.2007 he sent the
information
for
recording
of
dying
declaration as the condition of the deceased
was very serious and from 12.10.2007, till
recording of the statement, condition of the
patient was low. PW-5 stated that he did
not provide treatment to the deceased as
Dr. R.K. Singh (PW-13) was treating her.
PW-5 admitted that the doctor who
provides the treatment can tell about the
general condition of the patient but any
qualified doctor can also tell about the
general condition of the patient. He denied
the suggestion that only the doctor who
provides the treatment to the patient can
give a correct picture about the condition of
the patient.

25. Dr. Autar Singh PW-6. This
witness proved the post mortem report as
Ext. Ka-12. During post mortem of the
body of the deceased, PW-6 noticed:-

"Ante mortem injuries- burn
superficial to deep, present all over body
except soles of both feet. Hair were also
burnt. Puss pockets present all over the
body. According to the doctor deceased
died due to shock and septicaemia caused
by burn injuries."

26. During cross-examination PW-6
stated that there was bandage all over
including the face except eyes and lips. He
stated that septicaemia had spread all over
the
body.
After
commencement
of
septicaemia there can be no definite
estimate as to when the person will die
because it depends upon the resistance
power of the patient and the treatment but,
ordinarily, a person may die within a week.
PW-6 stated in a case of deep burn, no
blister may form.

27. PW-7 Sundar Lal, Circle
Officer. He is the first Investigating Officer
of the case. He proved the site plan. He
stated that he recorded the statement of
witnesses and after the permission of Chief
Judicial Magistrate, perused the dying
declaration of the deceased. He proved the
application seeking permission as Ext. Ka14. He stated that he noted down the dying
declaration of the deceased in the case
dairy. According to this witness, on the
basis of dying declaration, the implication
7 All. Shyam Mishra Vs. State of U.P.
1225
of co-accused Ram (husband), Vinay
(brother in law), Rubi (Sister in law) and
Pramod (Behnoi) was found false.

28. During cross-examination PW-7
stated that he did not record the statement
of Doctor S.B. Mishra (PW-5). He further
stated that he did not make any inquiry in
respect of the treatment provided to the
deceased. He also stated that he did not
record the statement of Magistrate who
recorded the dying declaration of the
deceased. PW-7 further stated that in the
dying declaration, the name of Chhunnu,
uncle of the deceased, had surfaced but he
neither recorded his statement nor inquired
about him. PW-7 also stated that he did not
record the statement of the deceased.

29. Prem Prakash PW-8. He is the
third Investigating Officer of the case.
After recording the statement of few
witnesses and perusal of earlier Parchas, he
submitted
charge
sheet
against
the
appellants- Shyam Mishra (appellant in Crl.
Appeal No. 2542 of 2011). The charge
sheet was marked Ext. Ka 15. He continued
the investigation against Rashmi (appellant
in Criminal Appeal No. 2173 of 2011) and
Sarojani Devi (appellant in Criminal
Appeal No. 2541 of 2011) and submitted
charge sheet against them, which was
proved and marked Ext. Ka-16.

30. During cross-examination, PW-8
stated
that
he
made
inquiry
from
independent witnesses, namely, Meera
Mishra, Daya Shanker Tiwari, etc. who
stated that husband-Ram Mishra, brotherin-law-Vinay
Mishra,
Behnoi-Pramod
Mishra and sister-in-law-Kumari Ruby
were not present at the spot. PW-8 also
stated that Meera Mishra (not examined)
had stated that fire was extinguished by
mother-in-law Sarojani (appellant in Crl.
Appeal No. 2541 of 2011); sister-in-law
Rashmi (appellant in Crl. Appeal No. 2173
of
2011)
and
brother-in-law
Shyam
(appellant in Crl. Appeal No. 2542 of
2011). He stated that witness Meera Mishra
did not inform him as to who burn the
deceased.

31. Subhash Chandra Shakya PW9. He is the second Investigating Officer of
the present case. This witness did not
record statement of any witness except the
statement of the informant (PW-1).

32.

Constable-Ashok
Kumar
Dwivedi PW-10. He proved the Chik
report of the case as Ext. ka-17 and G.D. of
the registration of the case as Ext. Ka-18.
PW-10 in his examination-in-chief, dated
03.11.2010, stated that the deceased died
on 18.10.2007 at about 9:30 pm in the
hospital and this information was given
through phone, which was noted in G.D.
He proved the said G.D. entry as Ext. Ka
22.

33. Dr. R.K. Singh PW-11. He is the
doctor who provided medical treatment to
the deceased Reeta Mishra. He stated that
the deceased was brought to the hospital by
her
husband.
He
provided
medical
treatment to her from 12.10.2007 to
18.10.2007. During the course of treatment,
she died on 18.10.2007 at 9:00 pm. PW-11
proved her bed head ticket (B.H.T.)as Ext.
Ka-19. He stated that during treatment, the
patient was conscious. He stated that he
made an endorsement on the B.H.T. for
recording
the
dying
declaration
and
information in this regard was sent to
doctor S.B. Mishra, Emergency Medical
Officer (PW-5). There is an endorsement
on the B.H.T. made by doctor S.B. Mishra
(PW-5) in respect of sending information
for recording the dying declaration. PW-11
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that the Magistrate, Sri Madan Singh
Garbiyal ACM 5th (PW-4), made an
endorsement on the B.H.T. regarding
recording of dying declaration and has put
his signature. PW-11 stated that it is the
responsibility
of
Emergency
Medical
Officer to provide a certificate of fitness of
the patient whose dying declaration is to be
recoded. He stated that on 17.10.2007, the
day when the dying declaration of the
deceased was recorded, Sri S.B. Mishra
(PW-5) was the Emergency Medical
Officer. PW-11 stated that as per entry in
the of B.H.T, the dying declaration was
recorded on 17.10.2007. PW-11 stated that
the date of recording of dying declaration
was not written before him and he cannot
say who wrote it. PW-11 stated that he
cannot
state
as
to
who
made
the
endorsement "D/D noted by me" in B.H.T.
(Ext.
Ka-19).
He
stated
that
the
endorsement on the B.H.T (Ext. Ka-19)
"call for recording D/D sent to Magistrate",
dated 17.10.2007, was neither written
before him nor he can tell the name of the
person who wrote it.

Note:- On perusal of the first
page of Ext. Ka-19 (B.H.T), we found that
on the margin (left side) it is noted "cell
phone recording D/D sent to Magistrate".
At the bottom of which there appears a
signature, which appears to be sign of
(PW-5) Dr. S.B. Mishra.

34. PW-11 denied the suggestion that
deceased-Rita
Mishra
had
died
on
17.10.2007 and that the dying declaration
of the deceased-Rita Mishra was noted
after her death. PW-11 stated that on the
first page of Ext. Ka 19 (B.H.T) there is an
initial of a Junior Doctor below the written
endorsement "D/D to be recorded" but he
does not know whose initial it is. PW-11
further stated that he did not himself make
any noting on the B.H.T with regard to the
dying declaration. He stated that during the
course of treatment he did not get any
information about the dying declaration.
PW-11 stated that Doctor S. B. Mishra
(PW-5) who provided the fitness certificate
was not in the team of junior doctors
assisting him. PW-5 also did not advise
PW-11 during the course of treatment. PW11 stated that 95% of the body of the
deceased was burnt and only 5% remained
and that the patient was continuously on a
glucose drip. PW-11 stated that since the
beginning patient was low and day by day
her condition deteriorated and due to
septicaemia, the condition of the patient
became worse.