# Smt. Ruksana & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 1216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-11
- **Case number:** Criminal Appeal No. 2220 of 2015
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ruksana-ors-in-jail-v-state-of-u-p-46762
- **Pages:** 16

## Headnote

Indian Evidence Act, 1872- Section 32 (1)-
Dying Declaration- The dying declaration
of the deceased was recorded by the PW5
Naib Teshildar Sadar in presence of the
Emergency Medical Officer who stated
that the patient is fit to give the dying
declaration before and after recording of
the dying declaration and the thumb
impression is also found of the deceased
on the same and the same has also been
identified by the Naib Tehsildar, as is
apparent from the dying declaration.

Where the prosecution establishes that the
maker of the dying declaration was in a fit
mental and physical condition to give the same,
then the same can be relied upon the Court for
securing the conviction of the accused.

Indian Evidence Act, 1872- Section 32 (1)-
Dying Declaration - Deceased sustained
100% burn injuries- It is trite law that a
dying declaration recorded of a person
who has received 100% burn injuries
cannot be rejected on that ground alone
on the ground that she may not be in a
position to speak. The same has to be
tested and if the court comes to a
conclusion that it is trustworthy then
believe it. In cases of dying declaration
the
legal
maxim
"Nemo
Moriturus
Praesumitur Mentire" i.e. the man will not
meet his maker with a lie in his mouth
comes in operation.

The law is settled that if the court comes to the
conclusion that the dying declaration is truthful
and voluntary, then the same has to be believed
and the court cannot substitute it's own opinion
in place of the medical examiner's opinion
unless there are some inherent defects in the
dying declaration.

Criminal Appeal rejected. (E-2) (Para 44, 45,
47)
Judgements cited/ relied upon: -

## Text

_Characters 0–39,620 of 54,911. This is a partial read: ask again with offset=39620 for what follows._

1216 INDIAN LAW REPORTS ALLAHABAD SERIES
gravity of the crime of rape, this Court had
expressed thus: -

"Rape or an attempt to rape is a
crime not against an individual but a crime
which destroys the basic equilibrium of the
social atmosphere. The consequential death
is more horrendous. It is to be kept in mind
that an offence against the body of a
woman lowers her dignity and mars her
reputation. It is said that one's physical
frame is his or her temple. No one has any
right of encroachment. An attempt for the
momentary pleasure of the accused has
caused the death of a child and had a
devastating effect on her family and, in the
ultimate eventuate, on the collective at
large. When a family suffers in such a
manner, the society as a whole is
compelled to suffer as it creates an
incurable dent in the fabric of the social
milieu."

35. Thus in view of the foregoing
discussions and the law as has been
enunciated by the Apex Court in the case
Shyam Narayan Vs. State of NCT Delhi
(Supra) applying to the instant case we
have no hesitation to hold that the
conviction of the appellant for the offence
u/s 376(1) IPC and sentence for life
imprisonment with fine of Rs.20,000/- and
in default of the same 1 year R.I as has
been awarded by the trial court is fully
justified in the facts and circumstances of
the present case which has in a very
detailed manner has discussed the issue of
imprisonment of sentence and given cogent
reason for awarding a sentence for
imprisonment of life to the appellant which
is a sound one. Therefore, we upheld the
conviction and sentence awarded by the
trial court to the appellant for the offence
for which he has been charged with, and
the same does not call for any interference
by this Court, hence the appeal of the
appellant lacks merit and is accordingly
dismissed.

36. The accused-appellant is stated to
be in jail. He shall remain in jail to serve
out the sentence awarded by the trial court.

37. Let a copy of this judgment be
transmitted to the trial court concerned
forthwith along with lower court record for
necessary information and follow up
action.

38. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person
(s)
(preferably
Aadhar
Card)
mentioning the mobile number (s) to which
the said Aadhar Card is linked before the
concerned Court/Authority/Official.

39.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of
High Court Allahabad and shall make a
declaration
of
such
verification
in
writing.
----------
(2021)01ILR A1216
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 2220 of 2015

Smt. Ruksana & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party
1 All. Smt. Ruksana & Ors. Vs. State of U.P.
1217
Counsel for the Appellants:
Sri Shivam Yadav, Sri Pankaj Srivastava, Sri
Rakesh Kumar Singh, Sri Syed Wajid Ali

Counsel for the Opposite Party:
A.G.A.

Indian Evidence Act, 1872- Section 32 (1)-
Dying Declaration- The dying declaration
of the deceased was recorded by the PW5
Naib Teshildar Sadar in presence of the
Emergency Medical Officer who stated
that the patient is fit to give the dying
declaration before and after recording of
the dying declaration and the thumb
impression is also found of the deceased
on the same and the same has also been
identified by the Naib Tehsildar, as is
apparent from the dying declaration.

Where the prosecution establishes that the
maker of the dying declaration was in a fit
mental and physical condition to give the same,
then the same can be relied upon the Court for
securing the conviction of the accused.

Indian Evidence Act, 1872- Section 32 (1)-
Dying Declaration - Deceased sustained
100% burn injuries- It is trite law that a
dying declaration recorded of a person
who has received 100% burn injuries
cannot be rejected on that ground alone
on the ground that she may not be in a
position to speak. The same has to be
tested and if the court comes to a
conclusion that it is trustworthy then
believe it. In cases of dying declaration
the
legal
maxim
"Nemo
Moriturus
Praesumitur Mentire" i.e. the man will not
meet his maker with a lie in his mouth
comes in operation.

The law is settled that if the court comes to the
conclusion that the dying declaration is truthful
and voluntary, then the same has to be believed
and the court cannot substitute it's own opinion
in place of the medical examiner's opinion
unless there are some inherent defects in the
dying declaration.

Criminal Appeal rejected. (E-2) (Para 44, 45,
47)
Judgements cited/ relied upon: -

1. Sampat Babso Kale & anr. Vs St. of Maha.
2019 (2) JIC 34 (SC)

2. Paparambaka Rosamma & ors. Vs St. of A.P,
1999 (7) SC 640 (Distinguished on facts)

3. St. of M.P. Vs Dal Singh: (2013) 14 SCC 159

4. Paniben (Smt) Vs St. of Guj. (1992) 2 SCC
474 (relied)
(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has
been preferred against the judgment and
order dated 19.5.2015 passed by Additional
Sessions Judge, Court No.4, Saharanpur in
S.T. No.502 of 2011 (State Vs. Smt.
Ruksana and others), convicting and
sentencing the appellants to undergo for
life imprisonment under Section 302/34
I.P.C. and fine of Rs.30,000/- each and in
default of payment of fine they shall further
to
undergo
for
one
year
additional
imprisonment

2. The prosecution case, as per the
F.I.R. which was lodged by Yusuf Ali alias
Pathan, Resident of Kaliar Sharif, Police
Station Kotwali Roorkhi, District Haridwar
on 28.5.2011 at about 22:35 hrs. at Police
Station Kotwali Dehat, District Saharanpur
on the basis of a written report submitted
by him, is that his daughter, namely,
Khushboo was married eight years ago in
Village Rasoolpur, Police Station Kotwali
Dehat, District Saharanpur to Ashraf @
Nanu and though sufficient dowry given in
the said marriage, but Ashraf @ Nanu
(husband), Ruksana (Mother-in-law), Noori
(Nanad) and Sultan Akhtar (Nandoi) used
to demand more dowry and indulged in
marpeet with his daughter Khushboo. The
informant on many times had given
Rs.10,000/- (twice) and Rs.15,000/- to
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
them for keeping his daughter happy. Few
days prior to the incident, in-laws of his
daughter Khusboo were pressurizing her to
ask her parents to give Rs.50,000/- and also
indulged in marpeet with her, which was
informed to him by his daughter Khushboo
and the informant told her that after making
arrangement of Rs.50000/- it would be paid
to her in-laws, but on 28.5.2011, one
Rashid of Rasoolpur had informed the
informant on phone that his daughter had
been burnt alive by her in-laws and the
villagers had admitted his daughter in the
hospital. On receiving the said information,
the nephews of the informant, namely,
Mirza
Hussain
and
Liyaqat
Ali
immediately rushed to District Hospital,
Saharanpur and at that time Khushboo was
conscious and she told Mirza Hussain and
Liyaqat Ali that her husband Ashraf @
Nanu, mother-in-law Ruksana, nanad Noori
and and nandoi Sultan Haider had poured
kerosene oil on her and set her ablaze.
Thereafter,
his
daughter,
namely,
Khushboo had died in the District Hospital
at 7:00 p.m. in the evening. When the
informant
reached
the
hospital,
his
nephews, namely, Mirza Hussain and
Liyaqat Ali informed and told him about
what his daughter Khushboo had narrated
about the incident to them. Thereafter, the
informant had got the report written and
submitted the same to the Police Station
Kotwali Dehat, District Saharanpur, on the
basis of which the F.I.R. was registered
against the five accused persons and the
same was also endorsed in the G.D. of the
concerned police station.

3. The dying-declaration of the
deceased was recorded on 28.5.2011 at
6:20 p.m. by Satish Kumar Kushwaha,
Naib Tehsildar Sadar in the presence of
Doctor Emergency Medical Officer of
S.B.D. ,District Hospital Saharanpur. The
said dying-declaration has been proved and
marked as Ext. Ka.3, which is reproduced
here-in-below:

**iz'u% rqEgkjk D;k uke gS \

mRrj% esjk uke [kw'kcw gSA

iz'u% rqEgkjh fdruh mez gS \

mRrj% esjh mez 25 o"kZ gSA

iz'u% rqegkjs ifr dk D;k uke gS \

mRrj% esjs ifr dk uke v'kjQ gSA

iz'u% rqe fdl xkWo dh jgus okyh gks \

mRrj% eSa jlwyiqj xkWo dh jgus okyh gwWA

iz'u% rqe fdl izdkj ty x;h \

mRrj% eq>s esjh lkl :[klkuk uUn uwjh]
lqYrku uunksbZ us eq>s tyk;k gSA esjs ifr dk eq>s
tykus esa dksbZ gkFk ugha gSA bu yksxksa us esjs mij
feV~Vh dk rsy Mkydj vkx yxk nhA vijkgu
yxHkx ,d&Ms<+ cts dh ?kVuk gSA esjk ifr ml
le; ?kj ls ckgj cPpks dks lkeku fnykus x;k FkkA
esjh lkl o uun us eq>s vkx ls blfy, tyk;k fd
og eq>s cnpyu le>rs gS vkSj dgrs gS fd ?kj ls
fudy tkvksA bl ckr dks ysdj esjh lkl o uUn ls
jkst >xM+k gksrk gS esjs ifr ls bl ckr dks ysdj
dksbZ >xM+k ugha gksrk gSA bl ckr dks ysdj llqj ls
esjk dksbZ >xM+k ugha gSA esjh 'kknh dks yxHkx lkr
lky gks x;s gSA vkx yxus ij eSa fpYykbZ rks
iM+ksfl;ksa us eq>s cpk;kA eq>s vkSj dqN ugha dguk
gSA**

4. The information about the death of
the decedased was given by the Medical
Officer to the Police Station Janakpuri.
Thereafater,
from
the
police
station
Kotwali
Dehat
S.I.
Naresh
Pal
on
28.5.2011 at 20:15 hrs left the police
station and reached to S.B.D. Hospital at
20:15
hrs.
and
conducted
the
panchayatnama of the dead body of the
deceased and also prepared the photo-lash,
chalan-lash, letter to R.I., letter to C.M.O.
and thereafter he sealed the dead body of
the deceased Khushboo and sent the same
for post mortem through Constable .

5. The post mortem of the deceased
was conducted on 29.5.2011 at 3:30 p.m.
and in the opinion of the doctor the
1 All. Smt. Ruksana & Ors. Vs. State of U.P.
1219
deceased died on account of burn injuries
and smell of kerosene oil was coming out
from the body of the deceased.

6. The investigation of the case was
entrusted to Station Officer Suresh Babu
Itoria, who recorded the statements of the
witnesses, made spot inspection of the
place of occurrence and prepared the site
plan. From the place of occurrence, he
recovered pieces of burnt clothes which
were stucked on the floor of the room and
the same were taken into possession by the
Investigating Officer who prepared the
recovery memo of the same, which was
signed by witnesses, namely Irfan son of
Inam and Irfan son of Ali Hasan. A plastic
5 liters vital mark cane which was of
yellow colour, was also recovered from the
room and the same was also taken into
possession by the Investigating Officer and
recovery memo of the same was also
prepared which was signed by the said two
witnesses also.

7. The Investigating Officer further
endorsed the dying declaration in the G.D.
and deposited the case property to the
police station and after completing all the
formalities of investigation, he submitted
charge sheet against the three appellants
and exonerated the husband of the deceased
namely, Ashraf @ Nanu and one Haider.

8. The case was committed to the
Court of Sessions and the trial Court
framed charges against the appellants under
Sections 498A, 302/34 I.P.C., who denied
the charges and claimed their trial.

9. The prosecution in support of its
case has examined PW1- Yusuf, PW2Mirza Hussain, PW3-Dheeraj Chawla,
PW4- Liyaqat Ali, PW5-Satish Kumar
Kushwaha,
Naib
Tehsildar,
PW6-S.I.
Naresh Pal, PW7-Constable Mehkar Singh,
PW8- Dr. Gopal, PW9-Irfan, PW10-Rashid
Naim and PW11-Suresh Babu Itoria.

10. The statements of the accusedappellants were recorded under Section
313 Cr.P.C. by the trial Court and they
denied the prosecution case and stated
that the dying declaration of the deceased
which was recorded is a false one. The
fingers of the deceased were burnt and
she could not put her thumb impression
on
the
dying
declaration.The
Investigating Officer in collusion with the
informant
had
got
a
false
dying
declaration recorded and because they
being the in-laws of the deceased, false
case has been set up against them.

11. The appellant Ruksana, mother inlaw of the deceased, has stated that there
was dispute between her son Ashraf @
Nanu and deceased with respect to a house
and she had already been ousted from the
house. She was living at the house of one
of her relative's Nafisa in Noor Basti. The
deceased died while cooking food in the
house and stove had burst, on account of
which she died. A false case was registered
against her in collusion with Ashraf @
Nanu with his in-laws.

12. The accused appellant Noori has
stated that she along with her husband
Sultan were running a academy in Mohalla
Nadeem Colony and they did not visit the
house of the deceased nor they had any
concern with her. On the date of the
incident, i.e., on 28.5.2011 from 7:00 a.m.
morning till 5:00 p.m.in the evening she
along with her husband was in school and
they were in the school distributing the
results of the children and other teachers
were also present and hence she is
innocent.
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Similarly, accused appellant
Sultan Akhtar has
also categorically
reiterated the statement made by the
accused appellant Noori.

14. In support of their defence, the
accused appellants produced DW1-Paigam
Rasool and DW2-Ayesha.

15. PW1-Yusuf Ali, who is the
informant of the case and father of the
deceased,
in
his
examination-in-chief
before the trial Court has stated that the
deceased Khushboo was his daughter and
she got married ten years ago with Ashraf
@ Nanu. Accused Ruksana is the motherin-law of the deceased Khushboo and he
does not know the relationship of the
deceased with the appellant Sultan with
Khushboo. The accused Noori is the Nanad
of his daughter Khushboo. The marriage of
his daughter Khushboo was solemnized in
mohalla Nai Basti. At the time of the
incident, deceased Khushboo used to live in
a village at Saharanpur and he does not
know the name of the said village. He
further deposed that his daughter Khushboo
had not told him about any demand being
made by her in-laws and he came to know
from the persons of the mohalla of the
deceased that she died on account of burn
injuries due to bursting of stove.He had
lodged a report about the incident and has
identified his thumb impression on the
written report, i.e., Ext. Ka.-1. As this
witness has not supported the prosecution
case, hence, he was declared hostile by the
trial Court.

16. PW2-Mirza Hussain in his
examination-in-chief before the trial Court
has deposed that the deceased Khushboo
was the daughter of his uncle Yusuf Ali.
Her marriage was performed eight years
ago with Ashraf @ Nanu, son of Ashiq
Ali.The accused Ruksana is the Mother-inaw, accused Sultan is the Nandoi and Noori
is the Nanad of the deceased Khushboo
respectively. All the three accused were
pressurizing the deceased to bring money
in dowry and when she refused to bring the
same, all the three accused indulged in
marpeet with her. His uncle many times,
i.e., 2-3 times had given Rs.10,000/- to her
in-laws. Khushboo had come to her house
on 2-3 occasions and she told him about the
demand of dowry and marpeet with her to
him. Prior to the incident, all the three
accused had asked the deceased Khushboo
to bring Rs.50,000/- from her parents. The
said fact was also told by the deceased
Khushboo and his uncle.

17. This witness further deposed that
his uncle Yusuf Ali had made a call on
phone to him and told that the in-laws of
Khushboo had set her ablaze. His uncle had
also informed him that people of the
mohalla of the deceased Khushboo had
taken her to the hospital. On receiving the
said information, he along with son of his
uncle, namely, Liyaqat reached to District
Hospital
Saharanpur.
He
reached
to
Saharanpur at about 6:45 p.m. in the
evening and on coming to know at hospital
that Khushboo was admitted in Burn Ward.
When they reached at the Hospital,
Khushboo was alive, she was conscious
and medical treatment was being given to
her. He along with Liyaqat had talked
Khushboo and she told that mother-in-law
Ruksana, her Nandoi Sultan and Nanad
Noori had poured kerosene oil on her and
set her ablaze.Thereafter, Khushboo died in
the hospital. A report of the incident was
lodged by his uncle Yusuf Ali. He told to
his uncle what Khushboo had told him. The
panchayatnama of the deceased Khushbo
was conducted in his presence, he signed
the same and proved his signature on
1 All. Smt. Ruksana & Ors. Vs. State of U.P.
1221
panchayatnama and proved the same as
Ext. Ka.-2.

18. PW-3 Dheeraj Chawla is the
scribe of the F.I.R. This witness in his
deposition before the trial Court has stated
that he knew Yusuf Ali who is a resident of
Village Kaliar Sharif. On 28.5.2011 Yusuf
Ali, Mirza Hussain, Liyaqat Ali and 5
others had come to his house at 7:30 p.m.
in the evening. Yusuf Ali told him that his
daughter had been set ablaze by her inlaws, for which he requested him to
accompany with them to Kotwali Dehat
and to write an application. When this
witness reached at Kotwali Dehat, District
Saharanpur, the police of the concerned
police station informed him to bring a
written report, which was written outside
the police station at a tea shop.What was
told by Yusuf Ali, was written by a boy
who had come along with them. When the
report was written, then the Yusuf Ali had
put his thumb impression on the same and
thereafter the same was submitted to the
police station and he had also signed the
written report as was instructed by Yusuf
Ali. He identified his signature on the
written report. His statement under Section
161
Cr.P.C.
was
recorded
by
the
Investigating Officer.

19. PW4- Liyaqat Ali in his
deposition before the trial Court has stated
that he knew the accused Smt. Ruksana,
Noori and Sultan Akhtar.The deceased
Khushboo was the daugther of his uncle
Yusuf. Her marriage was solemnized with
Ashraf @ Nanu. Her mother in-law
Ruksana, Nanad Noori and Nandoi Sultan
Akhtar used to demand dowry from her and
harassed her at regular intervals for the
same. Twice Rs.10,000/- was given by his
uncle Yusuf to them. Prior to the death of
the deceased, accused had made a demand
of Rs.50,000/- from her. On 28.5.2011, he
received an information that the accused
had burnt his cousin sister Khushboo. On
receiving the said information, he went to
the house of the accused persons but they
had fled away from there. After some time,
the father of the deceased namely, Yusuf
reached
the
house
of
her
in-laws.
Thereafter, firstly he along with Yusuf,
Mirza and several other persons had gone
to the house of Dheeraj Chawla between
7:00 p.m. to 8:00 p.m. where his uncle
Yusuf had told Dheeraj that his daughter
has been burnt to death for want of dowry
by the three accused appellants who are
present in Court and he should accompany
them for lodging the report at the police
station. Thereafter, they went to the Police
Station Kotwali Dehat and at the outside of
the police station at a tea shop they got a
report written from a boy who had come
along with them from Kalinger. What was
dictated in the report by Yusuf, the same
was written and Yusuf had put his thumb
impression on the same and after giving the
report at the police station they had gone to
District Hospital Saharanpur where they
came to know about the condition of
Khushboo who was in serious condition
and later on she died on the same day in the
night.

20. PW5-Satish Kumar Kushwaha,
Naib Tehsildar, in his deposition before the
trial Court has stated that he was posted as
Naib Tehsildar Sadar, Saharanpur. He
admitted before the trial Court the dying
declaration to be of the deceased Khushboo
which was shown to him before the trial
Court and identified the same and further
stated that on 28.5.2011 he had recorded
the said dying declaration of the deceased
Smt. Khushboo who burnt due to fire under
the orders of the superior officers. He
stated that he reached the hospital at 6:00
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
p.m. in the evening and contacted the
doctor who was on duty in the Emergency
Ward, for recording the dying declaration
of the deceased who accompanied him to
the Burn Ward where the medical treatment
of the deceased Khushboo was going on.
The said doctor had informed him that the
deceased was fit to give the dying
declaration, for which he had also given a
certificate that she was completely fit to
give the dying declaration. Thereafter, he
put questions to Smt. Khushboo who
replied the same which was noted by this
witness.
After
recording
the
dying
declaration of the deceased Khushboo, he
got thumb impression of left hand affixed
on the dying declaration and before putting
thumb impression he read over the same to
the deceased. This witness has proved the
said dying declaration of the deceased in
his hand writing and signature, which has
been marked as Ext. Ka.3.

21. PW6- S.I. Naresh Pal has stated
before the trial Court that on 29.5.2011 he
was posted at Police Station Kotwali Dehat
on the post of Sub Inspector. On the said
date, on the information of police station
Janakpuri death memo of Smt. Khushboo,
wife of Ashraf was given at police station
Kotwali Dehat which is paper no.11211,
which was endorsed in G.D. No.43. At
20:15 hrs he left the police station. He has
proved the death memo as Ext. Ka.4. This
witness has further deposed that he reached
the mortuary of S.B.D. Hospital where the
dead body of the deceased Khushboo was
on the ice brick. Thereafter he took the
dead body down and conducted the
panchayatnama on the dead body of the
deceased, sealed the same for post mortem
and handed it over to the Constable Rajpal
and Homeguard Satish. He has proved the
panchayatnama in his hand writing and
signature and proved the same as Ext. Ka.2.
He has proved the challan-lash, photo-lash,
letter to R.I., letter to C.M.O. in his hand
writing and signature and proved the same
as Ext. Ka. 4 to Ext. Ka.7.

22. PW7 Constable Mahkar Singh has
proved the chick F.I.R. which was in his
hand writing and signature. He stated that
on 28.5.2011 at about 22.35 hrs. on the
basis of a written report of Yusuf Ali alias
Pathan, he prepared a Chick No.127 of
2011, on the basis of which F.I.R. was
registered as Case Crime No.261 of 2011,
under Sections 498A, 302/34 I.P.C and 3/4
D.P.Act against Ashraf @ Nanu and others
and proved the same as Ext. Ka.8. This
witness has further stated that he has
endorsed the Chick F.I.R. at G.D. No.47,
carbon copy of which is in hand writing
and signature and proved the same as Ext.
Ka.9.

23. PW8- Dr. Gopal in his
deposition before the trial Court has
stated that he conducted the post mortem
of the deceased. He stated that on
29.5.2011
on
the
instructions
of
C.M.O.,Saharanpur,
Constable
400
Rajpal and Homeguard Satish of Police
Station Kotwali Dehat handed over the
dead body of the deceased Khushboo
along with 11 police papers and dead
body of the deceased was in sealed
condition and he conducted the post
mortem of the dead body of the deceased
Khushboo at 3:30 p.m. and found the
following injuries :-

"Superficial and deep burn all
over the body except both sole Shringing of
scalp pubic eye brow eye lasheshes and
axillary hair. Line of redness present and
smell of kerosene oil was coming from the
dead body and on the left leg canula
present."
1 All. Smt. Ruksana & Ors. Vs. State of U.P.
1223

24. In the opinion of the doctor, the
cause of death of the deceased was as a
result of shock and haemmhorage as a
result of ante mortem burn injuries. He
stated that the whole body was burnt except
sole and he has proved the post mortem
report as Ext. Ka.10.

25. PW9-Irfan in his examination-inchief has stated that he knew the accused
Sultan Akhtar, Ruksana and Noori who
were the resident of his mohalla. Deceased
was the wife of Ashraf alias Nanu. On
29.5.2011, the Investigating Officer had
come to his Mohalla who had gone to the
house of the accused and recovered the
burnt clothes, dupatta etc. in his presence
and also 5 liters plastic cane of vital mark
and further took some sticky substance
from the floor of the room and recovery
memo of the same was prepared which was
read over to him and he had signed the
same and proved the same as Ext. Ka.11.

26. PW10- Rashid in his deposition
before the trial Court has stated that on
28.5.2011 he was doing some work in the
hosue of Sajid. He knew the accused
Ruksana, her house is situated at the place
where he was working, which was at a
distance of 25 paces. He heard some noise
coming out from the house of Ruksana and
at that time it was about 3:00 p.m. to 4:00
p.m.. He saw that the daughter-in-law of
Ruksana who had burnt, came out of the
house and he along with other persons of
mohalla had tried to extinguish the fire on
her. At that time Ruksana was in the house
and she thereafter came out from the house
and went on motorcycle with a boy and he
did not know any other person.

27. PW11-Suresh Babu Itoria has
stated that he was posted as Senior Sub
Inspector at the concerned police and in his
presence
the
F.I.R.
was
registered,
thereafter he took the investigation of the
case and recorded the statements of the
witnesses in the case diary, made spot
inspection of the place of occurrence and
prepared the site plan. He recovered some
pieces of sticky clothes from the place of
occurrence which were found on the floor
of the house of the burnt room and took
them in his possession and prepared
recovery memo of the same in the presence
of Irfan son of Inam and Irfan son of Ali
Hasan which was sealed by him in their
presence and he proved the same as Ext.
Ka.11. This witness further stated that he
also took a 5 liters plastic cane in his
possession from the room of the deceased
which was yellow colour in presence of the
said two witnesses and also proved the
same as Ext. Ka.12. This witness has
proved the site plan as Ext. Ka.13.He
deposited the items recovered in the
Malkhana of the concerned police station
and endorsed the same in G.D. No.26 at
13:05 hrs. and proved the same as Ext.
Ka.14. He had copied the dying declaration
of the deceased in the case diary and after
concluding the investigation submitted the
charge sheet against the three appellants
and proved the same as Ext. Ka.17 and
further sent the recovered clothes to Vidhi
Vigyan Prayogshala and also wrote letter in
this regard and proved the same as Ext.
Ka.15.

28. On behalf of the appellants Sultan
Akhtar and Noori, who in their defence,
have examined DW1-Paigam Rasool and
DW2 Ayesha to prove the plea of alibi.

29. DW1 Paigam Rasool has stated
before the trial Court that he runs St. Jehra
Academy which is situated in Mohalla
Nadeem Colony and he is the President of
the said School. He further stated that
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
Sultan Akhtar is the partner and Manager
whereas his wife Noori is the teacher in the
School and they both live in a room above
the said school. The school is from Class 1
to 5. In the month of May, 2011 there was
three teachers in the school. Hussain
Ahmad, Ayesha and Noori were the
teachers. Noori is the wife of Sultan
Akhtar. On 28.5.2011 it was working day
in his school from 9:00 a.m. in the morning
till 4:30 p.m. in the evening and during the
said period the results of the students were
being distributed and during the said period
Sultan Akhtar, Noori and Ayesha were
present in the school along with the
students and their parents from 9:00 a.m.
till 4:30 p.m. in the evening. On 28.5.2011
Sultan Akhtar and Noori remained in the
school and did not go outside.He had also
brought the original register of the school
and filed a photocopy of the same and
proved the same as Ext. Kha.1.This witness
has stated that on 28.5.2011 there is
attendance of Noori and Ayesha in the said
register and they have signed, whereas the
attendance of Sultan Akhtar has not been
endorsed as he was the Manager.

30. DW2-Ayesha has deposed before
the trial Court that earlier she used to teach
in St. Jehra Academy School in the years
2010 and 2011 and Noori and Hussain
Ahmad were also the teachers in the said
school and Sultan Akhtar was the Manager
of the said school.Paigam Rasool was the
President of the said school. Above the
school there was a room of Sultan Akhtar
and Noori who are the husband and wife.
On 28.5.2011 the school was opened from
9:00 a.m. in the morning and there was
distribution of report cards of the students
in the school and she was also present
there. Along with her, Noori Sultan Akhtar
and Paigam Rasool were also present and
they all remained present till 4:30 p.m. in
the school and during the said period
parents of the students were coming and
going. On 28.5.2011 from 9:00 a.m. in the
morning till 7:00 p.m. in the evening Noori,
Sultan Akhtar and Paigam Rasool were
present in the school and they did not go
out. On 28.5.2011 her attendance along
with Noori was endorsed in the attendance
register of the school and she proved the
same as Ext. Kha-1 in which she identified
her signature. She further stated that in the
attendance register, the attendance of
Paigam Rasool and Sultan Akhtar were not
filled as they were President and Manager
of the school and attendance is only taken
of the teachers.

31. The trial Court after examining
the prosecution evidence and defence
evidence came to the conclusion that the
accused appellants have committed murder
of the deceased by setting her ablaze and
has convicted and sentenced them for the
offence in question.

32. Heard Sri Rakesh Kumar Singh,
learned counsel for the appellants, Ms.
Archana Singh, learned A.G.A. appearing
for the State and perused the material
brought on record.

33. It has been argued by the learned
counsel for the appellants that PW1 who is
the father of the deceased Smt. Khushboo
has not supported the prosecution case and
has turned hostile. So far as PW2 Mirza
Hussain
and
PW4
Liyaqat
Ali
are
concerned who are the cousin brothers of
the deceased and nephew of PW1, on
receiving the information from PW1 about
the incident reached Saharanpur Hospital
where the deceased was admitted after she
received injuries in the incident. She told
them that it was the three appellants who
had poured kerosene oil on her and set her
1 All. Smt. Ruksana & Ors. Vs. State of U.P.
1225
ablaze as they thought that she was a
woman of a bad character. He further
submitted that the deceased received 100%
burn injuries on her person, hence, she was
not in a position to speak and moreover, as
per the evidence of the two witnesses they
had reached the hospital at about 6:45 p.m.
and their evidence is unworthy to be
believed as they are highly interested and
partisan witnesses as they are related to the
deceased.

34. So far as the dying-declaration of
the deceased is concerned, it has been
argued by the learned counsel for the
appellant that the same does not inspire
confidence and it is an after thought
document. In this regard, he assailed the
dying declaration on two counts; firstly,
PW5 Naib Tehsildar Satish Kumar who has
recorded the dying declaration of the
deceased, has failed to show before the trial
Court that under whose instruction he
reached the District Hospital to record the
dying declaration and further the fitness
certificate
for
recording
the
dying
declaration which was given of the
emergency doctor of the said hospital is
also doubtful as the deceased who had
received 100% burn injuries could not
make such a dying declaration; secondly, as
the fingers of the deceased were burnt,
hence, there was no occasion for her to put
her thumb impression on the dying
declaration. He further argued that the
Ruksana mother-in-law of the deceased
was living separately to her at the house of
one of her relative's Nafisa in Noor Basti
and Nand Noori and Nandoi Sultan Akhtar
of the deceased were living separately from
the deceased and her husband in the school
in a room above the said school in which
they were working, and they were not
present on the date and time of the
occurrence and they have been falsely
implicated in the present case as they
happens to be in-laws of the deceased and
related to her husband.

35. He argued that the trial Court has
misread the evidence on record and
particularly, the dying declaration of the
deceased and has convicted and sentenced
the appellants without there being any
reliable evidence against them. Hence, the
conviction and sentence of the appellants
be set aside. The appellants, namely, Smt.
Ruksana and Smt. Noori are in jail since
10.6.2011 and appellant, namely, Sultan
Akhtar
is
in
jail
since
14.7.2011
respectively.

36. In support of his argument,
learned counsel for the appellants has
placed reliance of the judgement of the
Apex Court in the case of Sampat Babso
Kale & Anr. Vs. State of Maharashtra
reported in 2019 (2) JIC 34 (SC) and
Paparambaka Rosamma & Ors. Vs.
State of Andhra Pradesh reported in
1999 (7) SC 640.

37. Learned A.G.A. on the other hand
has vehemently opposed the arguments of
the learned counsel for the appellants and
submitted that the deceased died in her
matrimonial house and she in her dying
declaration (Ext. Ka.2) has categorically
stated that kerosene oil was poured on her
by the three appellants who set her ablaze
as the three appellants had doubted the
chastity of the deceased and they wanted to
oust the deceased from their house and the
dying declaration has been recorded by the
Naib
Tehsildar
Sadar
Satish
Kumar
Kushwaha (PW5) and the fitness certificate
has been given by the Emergency Medical
Officer of the S.B.D. District Hospital,
Saharanpur before and after the dying
declaration
which
bears
the
thumb
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
impression of left hand on the same and
there appears to be no material on record to
doubt the said dying declaration of the
deceased, who died on account of antemortem burn injuries and the defence
which has been set out that the deceased
died while preparing the food in the house
and stove had burst, is a false explanation
given by the appellants as the Investigating
Officer did not find any burst stove at the
place of occurrence, moreover, he found
the pieces of clothes and dupatta of the
deceased which were burnt and a 5 liters
cane of vital mark from which smell of
kerosene oil was coming out and from the
dead body smell of kerosene oil was
coming out as was noticed by the doctor
who conducted the post mortem of the
deceased.

38. The case law which has been relied
upon by the learned counsel for the appellants
in the case of Paparambaka Rosamma &
Ors. Vs. State of Andhra Pradesh (supra) on
the point of dying declaration, is totally
distinguishable from the facts of the present
case as the said dying declaration was
disbelieved by the Apex Court only on the
ground that no independent witness had come
to support the prosecution case and further, in
the dying declaration the doctor has only
stated that the deceased was conscious but
there was no fitness certificate given by the
doctor who recorded the dying declaration,
hence, the dying declaration was disbelieved
by the Apex Court in the said case.

39. The other case law relied upon by
the learned counsel for the appellants in the
case of Sampat Babso Kale & Anr. Vs.
State of Maharashtra (supra) is also not
of any help to the appellants as the dyingdeclaration was disbelieved by the Apex
Court on the ground that the the Doctor has
not given any fitness certificate before
recording the dying-declaration and given it
after the statement was recorded of the
deceased, but in the instant case the Doctor
has given the fitness certificate before and
after recording the dying-declaration of the
deceased, hence, the same cannot be
doubted.

40. After having considered the
submissions advanced by the learned
counsel for the parties. We have perused
the impugned judgment and order as well
as record thoroughly.

41.

It
transpires
from
the
prosecution case that the deceased was
the wife of Ashraf @ Nanu and she was
done to death by the three appellants who
poured kerosene oil on her and set her
ablaze between 1:00 p.m. to 1:30 p.m. in
the afternoon.The dying declaration of
the deceased was recorded by PW5 Satish
Kumar Kushwaha, Naib Tehsil Sadar,
District Saharanpur on 28.5.2011 at 6:20
p.m. in the presence of the doctor who
had given a fitness certificate that the
patient is fit for dying declaration. From
the dying declaration it is apparent that
the deceased was done to death by the
three appellants as they doubted her
chastity and were pressurizing her to
leave the house and because of the said
fact frequently there was quarrel between
them. The F.I.R. of the incident was
lodged on the same day of the incident,
i.e. on 28.5.2011 at 22.35 hrs. by the
father of the deceased, namely, Yusuf
Alia alias Pathan against five persons,
namely, Ashraf @ Nanu (Husband),
Ruksana (Mother-in-law), Noori (Nanad)
and Sultan (Nandoi) of the deceased
respectively and one Haider and the
charge sheet was submitted against the
three appellants only and other two
accused were exonerated.
1 All. Smt. Ruksana & Ors. Vs. State of U.P.
1227

42. So far as the argument of learned
counsel for the appellants that the dying
declaration
of
the
deceased
is
a
manipulated document and is unworthy to
be believed on the ground that as the whole
body of the deceased was burnt except both
sole shringing of scalp pubic eyebrow, eye
lashes and axillary hair. Line of redness
present. Thus, as the fingers of the
deceased were also burnt, hence, it was not
possible for her to put thumb impression on
the dying declaration and further from the
evidence of PW5 Naib Tehsildar Sadar
Satish Kumar Kushwaha who had recorded
the dying declaration of the deceased, it is
also not apparent that under whose order he
went to the District Hospital to record the
dying declaration of the deceased, which
creates doubt about the truthfulness of the
dying-declaration of the deceased. The said
argument of the learned counsel for the
appellants is not at all acceptable as it is
apparent from the dying-declaration of the
deceased that the same was recorded by the
PW5 Naib Tehsildar, Sadar Satish Kumar
Kushwaha who in his evidence has
categorically stated that under the orders of
the S.D.M. concerned the days were fixed
for recording the dying declaration in a
week to two Naib Tehsildars, i.e., on
Wednesday, Friday and Saturday dying
declaration to be recorded by Naib
Tehsildar Mubarka, whereas on the rest
four days dying declaration to be recorded
by Naib Tehsildar Sadar and on the day on
which
he
had
recorded
the
dying
declaration of the deceased, there was an
order of the S.D.M. concerned and in
pursuance of which he recorded the dying
declaration of the deceased in the presence
of the doctor who had given the fitness
certificate before and after recording of the
dying declaration of the deceased that she
was in a fit state of mind.

43.

PW8
Dr.Gopal
who
had
conducted the post mortem of the deceased
has also stated that it is not correct that a
person who has received 100% burn
injuries becomes unconscious within 15
minutes and he is not able to speak.

44.