# Smt. Sudha & Anr v. State Of U.P

- **Citation:** (2022) 1 ILRA 484
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-27
- **Case number:** Criminal Appeal No. 2137 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sudha-anr-v-state-of-u-p-47473
- **Pages:** 25

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 304(1) - Allegation-dowry deathburn injuries-husband admitted in the
hospital-dying declaration-cause of deathsepticimia-accused had no intention to
cause death-injuries though sufficient to
cause death-hence incident fall under Ex.1
and 4 to section 300 IPC-offence will fall
under section 304 (1) IPC-conviction u/s
302 IPC converted into under section 304
(1) IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,939 of 81,381. This is a partial read: ask again with offset=39939 for what follows._

484 INDIAN LAW REPORTS ALLAHABAD SERIES
out and the finding and punishment is
contrary.

32. In view of the decision in Patan
Jamal Vali (supra), the sine qua non is that
the victim should be a person, who belongs
to scheduled caste or scheduled tribe and
that the offence under the Indian Penal
Code is committed against such person on
the basis that such person belongs to the
same caste and the offender does not
belong to the same caste. If this is proved,
then only conviction under Section 3(2)(V)
of the Act, 1989 can be invoked.

33. The evidence goes to show that
there was no utterance by accused, which
would prove that the ingredients of Section
3(2)(V) of the SC/ST Act are fulfilled. The
judgment in Patan Jamal Vali (supra)
applies to facts in this case, and therefore,
when the prosecutrix and her witnesses are
silent on the factum of the incident
occurring due to she being of caste, which
falls within the purview of SC/ST Act, the
conviction cannot be sustained.

34. We pass the following orders:-

(I) The sentence awarded to the
appellant by the learned trial-court for the
commission of offence under Section 376
read with Section 506 of IPC is reduced to
a period of 8 years with fine of Rs.5,000/-
and the default sentence is maintained
looking to the poverty of the appellant.

(ii) As far as Section 3(2)(V) read
with Section 3(1)XII) of the SC/ST Act is
concerned, this Court upturns the sentence
both of incarceration and fine and the same
is quashed if the fine is deposited, which is
a fine under Section 325 IPC, same shall be
refunded. The accused is acquitted of the
said charges.

(iii) As far as Section 326 IPC is
concerned, we lessen the fine to Rs.2000/-,
which should be paid to the father of the
prosecutrix.

35. The appeal is partly allowed. The
records be sent back to the court below.
----------
(2022)01ILR A484
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 2137 of 2015

Smt. Sudha & Anr. ...Appellants
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Nipun Singh, Sri Manoj Vashisth, Sri
Santosh Kumar Tiwari, Sri Santosh Tripathi

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

Criminal Law - Indian Penal Code, 1860 -
Section 304(1) - Allegation-dowry deathburn injuries-husband admitted in the
hospital-dying declaration-cause of deathsepticimia-accused had no intention to
cause death-injuries though sufficient to
cause death-hence incident fall under Ex.1
and 4 to section 300 IPC-offence will fall
under section 304 (1) IPC-conviction u/s
302 IPC converted into under section 304
(1) IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

1. St. of U.P. Vs Ramesh Prasad Misra & anr.
1996 AIR (Supreme Court) 2766
1 All. Smt. Sudha & Anr. Vs. State of U.P.
485
2. Koli Lakhmanbhai Chanabhai Vs St. of Guj.,
reported in (1999) 8SCC 624

3. Ramesh Harijan Vs St. ofU.P. 2012(5) SCC
777

4. Prakash & anr. Vs St. of M.P. (1992) 4 SCC
225

5. Laxman Vs St. of Mah. (2002) 4 SCC 710

6. Babulal & ors. Vs St. of M.P. (2003) 12 SCC
490

7. Lakhan Vs St. of M.P. (2010) 8 SCC 514

8. Vijay Pal Vs St. (Government of NCT of Delhi)
(2015) 4 SCC 749

9. Mafabhai Nagarbhai Raval Vs St. of Guj.
(1992) 4 SCC 69

10. St. of M.P. Vs Dal Singh & ors. (2013) 14
SCC 159

11. Ganga Dass Alias Godha Vs St. of
Haryana1994 Supp(1) SCC 534

12. B.N. Kavatakar & anr. Vs St. of Karnataka
1994 Supp(1) SCC 304

13. Jagtar Singh & anr. Vs St. of Punj. (1999) 2
SCC 174

14. Maniben Vs St. of Guj. (2009) 8 SCC 796

15. Bengai Mandal @ Begai Mandal Vs St. of
Bihar [(2010) 2 SCC 91

16. Chirra Shivraj Vs St. of Andhra Pradesh
(2010) 14 SCC 444

17. Sanjay Vs St. of U.P. (2016) 3 SCC 62

18. Khokan Alias Khokhan Vishwas Vs St. of
Chhattisgarh (2021) 3 SCC 337

19. Gujarat High court in Criminal Appeal No.83
of 2008 (Gautam Manubhai Makwana Vs St. of
Gujarat) decided on 11.9.2013

20. Criminal Appeal No.1944 of 2014, Ram
Prakash Alias Pappu Yadav Vs St. of U.P.
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal has been preferred
against the judgment and order dated
8.5.2015 passed by learned Sessions Judge,
Meerut in Special Trial No.519 of 2011
(State Vs. Smt. Sudha and another) arising
out of Case Crime No.190 of 2000, under
Sections 498A, 304B in alternate Section
302 IPC and Section 3/4 the Dowry
Prohibition Act, P.S. Partapur, Meerut
whereby
the
appellants
have
been
convicted under Section 302 of the IPC for
life imprisonment along with find of
Rs.20,000/- each and in default of the
payment of fine an additional imprisonment
of one year.

2. The brief facts of the case are that a
first information report was registered on
19.5.2000 at 15.30 p.m. on the basis of an
application moved by the complainant,
father of the deceased being Smt. Jaya in
police station Partapur, District Meerut
alleging
that
the
daughter
of
the
complainant being Smt. Jaya aged about 23
years solemnized marriage with one Sri
Raghuvir s/o Dev Dutt Swarnkar r/o
Acchrauden, P.S. Partapur, District Meerut
on 15.2.1999 after offering expensive gifts
such as Shelf, T.V., Cooler, Double Bed,
Sofa, Sewing Machine, Cooking ware,
Wall Clock, Gas Cylinder, Clothes and
Jewellery but neither the accused nor the
family members were happy with gifts so
offerred to them, whenever Smt. Jaya
(Deceased) used to visit her parental house,
then she used to make complaint of the
appellants being sister-in-laws and Sri
Raghuvir s/o Dev Dutt Swarnkar the
486 INDIAN LAW REPORTS ALLAHABAD SERIES
husband, that dowry was being demanded
them and they used to administer beating.

3. In the FIR, it was further alleged by
the complainant that on 5.5.2000, he
received information that his daughter
being the deceased/victim had sustained
burn injuries. Accordingly, he along with
his wife rushed to the matrimonial house of
his daughter on 6.5.2000 and thereafter, the
complainant was apprised that Smt. Jaya,
being the daughter of the complainant, has
been admitted by her husband namely Sri
Raghuvir s/o Dev Dutt Swarnkar and
mother-in-law in Jeevan hospital at Modi
Nagar, Meerut.

4. Accordingly, the complainant
visited the hospital and the daughter of the
complainant, however, did not disclose any
facts to either the complainant or his wife.
Subsequently,
the
daughter
of
the
complainant being Smt. Jaya wife of Sri
Raghuvir s/o Dev Dutt Swarnkar was
referred to Safdarjung Hospital Delhi for
treatment. The statement of Smt. Jaya
being the daughter of the complainant was
recorded by the Magistrate on 7.5.2000 in
the presence of the complainant, in which,
the daughter of the complainant narrated
the facts that on 30.4.2000, the appellants,
who happened to be her sister-in-laws, used
to often quarrel and administer beating
upon her and on 30.4.2000, the appellants
poured kerosene oil over her and thereafter
the appellant no.1 ignited the same. At the
relevant point of time, Sri Raghuvir, who
happened to be the husband of the
deceased/ Smt. Jaya was present, but he
allowed her sisters, being the appellant, to
push away from the spot, he poured water
over the deceased and when request was
being made by the deceased for taking her
for proper treatment, the husband of the
deceased took the deceased to a medical
practitioner in village Saidpur, bandage
was wrapped over her. In her statement, the
deceased also stated that she was not taken
anywhere with a view that she may not
write a letter to anyone narrating the said
incident and she was locked in the room. It
was further alleged in the first information
report that during the course of the
treatment, the complainant's daughter being
Smt. Jaya succumbed to burn injuries on
12.5.2000 in Safdarjung Hospital. On the
basis of the complaint dated 19.5.2000, the
FIR was registered.

5. Consequent to the lodging of the
complaint,
as
noted
above,
a
first
information report was lodged under
Section 304B IPC, 1860 on 18.5.2000
against the appellants being Case Crime
No.190 of 2000 before the police station
Partapur, Meerut. S.I. Om Prakash took up
the investigation. During the course of the
investigation, he recorded the statement of
the witnesses, prepared site plan, victim's
dying declaration was also recorded by
S.D.M. Najafgarh. After the death of the
victim, inquest report was prepared and the
dead-body was sent for postmortem.

6. After completing the investigation,
the Investigation Officer submitted the
charge sheet against the accused Raghuvir
s/o Dev Dutt Swarnkar (husband) and
against
the
appellants,
who
were
absconding. Hence the investigation was
kept pending against them.

7. The file of Sri Raghuvir s/o Dev
Dutt Swarnkar being the husband of the
victim was committed to the Court of
Sessions by the Magistrate concerned and
the Sessions Trial No.1095 of 2000 was
proceeded with, which culminated into an
order passed by the Court of Fast
Track/Additional District and Sessions
1 All. Smt. Sudha & Anr. Vs. State of U.P.
487
Judge, Meerut on 14.3.2003. However, the
investigation which was pending against
the appellants was concluded and given to
its logical end while filing of the charge
sheet against the appellants for the offences
punishable under Sections 498A, 304B of
the IPC, 1860 read with Section 3/4 Dowry
Prohibition Act. The case being triable by
the Court of Sessions was committed by the
competent Magistrate to the Court of
Sessions.

8. Learned Trial Court framed charges
against the appellants under Sections 498A,
304 IPC read with Section 3/4 D.P. Act.
Accused denied the charges and claimed to
be tried.

9. To bring home the charges, the
prosecution produced following witnesses,
namely:

1.
Dharmvir Singh
PW1
2.
Prem Narayan
PW2
3.
Arun Kumar
PW3
4.
Dr. Arvind
PW4
5.
Omprakash
PW5
6.
Navneet
Singh
Sikeria
PW6
7.
Roshan
Lal
Sharma
PW7

Apart from the aforesaid witnesses the
prosecution submitted following documents
which were proved by alleging the
evidence.

1.
First Information
Report
Ex.ka1
2.
Dying
Declaration
Ex.ka2
3.
Application
for
postmortem
Ex.ka3
4.
Brief facts
Ex.ka4
5.
Death report
Ex.ka5
6.
Postmortem
report
Ex.ka6
7.
Medico
legal
report
Ex.ka7
8.
Death summary Ex.ka8
9.
Death report
Ex.ka9
10.
Charge-sheet
Ex.ka10
11.
Charge-sheet
Ex.ka11
12.
Site-plan
Ex.ka13

10. Heard Sri Santosh Kumar Tiwari
learned counsel for the appellants, learned
AGA for the State and perused the record.

Learned
counsel
for
the
appellants had made manifolds submissions
namely:

(a) As the star witness being PW2
and also PW1 have not supported the
prosecution case and they have turned
hostile so conviction of appellants is not
legally justified.

(b) Though dying declaration
was recorded when the victim was
surviving, but the dying declaration has
no corroboration with any prosecution
evidence. Therefore, the trial court has
committed grave error by convicting the
accused
on
the
basis
of
dying
declaration.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) Once the accused were
acquitted under the offences punishable
under Section 3/4 of the Dowry Prohibition
Act read with Sections 498A and 304 IPC
then there was no occasion to convict the
appellants under Section 302 of the IPC
particularly when there was a doubt as to
whether the deceased succumbed on
account an act of suicide or by virtue of the
burns sustained while pouring of kerosene
by the appellants.

(d) The appellants could not have
been convicted under Section 302 of the
IPC particularly when the death was on
account of septicemia and at maximum the
case could have travelled up to the limits of
offences under Section 304 IPC.

11. Learned AGA, per contra,
vehemently opposed the arguments placed
by counsel for the appellant and submitted
that conviction of accused can be based
only on the basis of dying declaration, if it
is
wholly
reliable.
It
requires
no
corroboration. Moreover, testimony of
hostile witnesses can also be relied on to
the extent it supports the prosecution case.
Learned trial court has rightly convicted the
appellant under Section 302 IPC and
sentenced accordingly. There is no force in
this appeal and the same may be dismissed.

12. Learned counsel for the appellants
while elaborating his first submission had
sought to argue that main prosecution
witness has not supported the prosecution
case and the witnesses had turned hostile as
so far as the PW-1 Sri Dharmvir Singh is
concerned, he turned hostile to the
prosecution as in his examination-in-chief,
he has only stated that he is well-versed
with Sri Raghuvir, Sudha and Madubal @
Anuradha accused (appellants) as they were
the resident of his village and he is not
aware that Raghuvir married to whom.
Even in fact in the cross-examination of
PW1 Dharmvir has also denied his
statement alleged to be recorded under
Section 161 Cr.P.C., meaning thereby he
did not support the prosecution version.

13. According to the learned counsel
for the appellants, the most crucial witness
was the complainant, who happens to be
the father of the deceased/victim (PW-2),
though in his examination-in-chief had
admitted lodging of the above noted FIR
and the same has also been proved but the
PW2 in his statement had come up with the
case that the deceased daughter was never
harassed for demand of dowry and she
never complained about the same. It was
further deposed by the PW2 that his
deceased
daughter
denied
that
the
appellants had ever beaten or quarrelled
with her or committed the occurrence
which culminated into the conviction of the
appellants. It has further been argued by the
learned counsel for the appellants that once
the PW2 has resiled from his statement
recorded under Section 161 of the Cr.P.C.
while alleging that FIR was prepared under
the dictation of some police personnel and
was not signed by him then in these
circumstances there remained no witness so
as to suggest the story so propounded by
the prosecution was true and reliable.

14. In nutshell, the submission of
learned counsel for the appellants is to the
extent that once the prosecution witnesses do
not support the prosecution version and they
have also been declared hostile then the entire
case of the prosecution has no legs to stand
and thus the conviction of the appellants is
unsustainable in the eyes of law.

15. The argument so raised by the
learned counsel for the appellants with
1 All. Smt. Sudha & Anr. Vs. State of U.P.
489
respect to the PW-1 Sri Dharmvir Singh
and PW-2 Sri Prem Narayan being declared
to be hostile and thus the entire prosecution
case has no legs to stand though appears to
be attractive but is not liable to be accepted
particularly in view of the fact that here in
the present case, there is a distinguishable
feature that admittedly a first information
report was lodged on 19.5.2000 at 15.30
p.m. on an application moved by the
complainant Sri Prem Narayan PW2, who
happens
to
be
the
father
of
the
deceased/victim. PW5 S.I. Sri Om Prakash
in his testimony had deposed that while he
was posted as head Munshi at Police
Station Partarpur District
Meerut on
9.5.2000, he lodged Chik No.109 of Case
Crime No.190 of 2000, under Section 304B
of the IPC upon written report of the
complainant. The registration of the case
crime number was entered in General Diary
No.26 at 15.30 p.m. on 19.5.2000. The said
documents were compared and proved also.
Even otherwise PW6 I.O. Navneet Singh
Sikeria also proved the said document
being complaint lodged by the PW1 Prem
Narayan. The aforesaid facts itself reveal
that it is the complainant being PW2, who
had moved complainant which transformed
into lodging of an FIR. Thus it is only on
the basis of the complaint that FIR was
lodged and the motion for conducting
investigation commenced. Even spot map
was also prepared on the basis of the
directions
of
the
complainant
Prem
Narayan (PW2).

16. Hon'ble Apex Court had the
occasion to consider the contingency
wherein the witnesses turned hostile and it
was held that the evidence of hostile
witness can be relied upon to the extent it
supports the version of the prosecution and
it is not necessary that it should be relied
upon or rejected as well as even
otherwise it is a settled law that evidences
of hostile witness can be relied upon to the
extent to which it supports the prosecution
version.

17. In the case of State of U.P. vs.
Ramesh Prasad Misra and another 1996
AIR (Supreme Court) 2766, the Hon'ble
Apex Court has held as under:-

"the Hon'ble Apex Court held that
evidence of a hostile witnesses would not
be totally rejected if spoken in favour of the
prosecution or the accused but required to
be subjected to close scrutiny and that
portion of the evidence which is consistent
with the case of the prosecution or defence
can be relied upon. Thus, the law can be
summarized to the effect that evidence of a
hostile witness cannot be discarded as a
whole, and relevant part thereof, which are
admissible in law, can be used by
prosecution or the defence."

18. In the case of Koli Lakhmanbhai
Chanabhai
Vs.
State
of
Gujarat,
reported in (1999 ) 8SCC 624, the
Hon'ble Apex Court in paragraphs-5 and 6
has held as under:-

5. From the aforesaid evidence on
record, in our view, it cannot be said that the
High Court erred in relying upon some
portion of the evidence of P.W. 7 who was
cross-examined by the prosecution. It is
settled law that evidence of hostile witness
also can be relied upon to the extent to which
it supports the prosecution version. Evidence
of such witness cannot be treated as washed
off the record. It remains admissible in the
trial and there is no legal bar to base his
conviction upon his testimony if corroborated
by other reliable evidence. In the present
490 INDIAN LAW REPORTS ALLAHABAD SERIES
case, apart from the evidence of P.W.7, the
prosecution version that he saw that
appellant was having knife in his hand and
was quarreling with the deceased gets
corroboration from the evidence of P.Ws 11
and 12 to whom he disclosed the incident
immediately. On the basis of the said
information, within one hour, FIR was lodged
disclosing the name of the appellant as the
person who has inflicted the knife blow.
Number of incised wounds are found as per
the Postmortem report. The prosecution
version gets further corroboration from
discovery of Muddamal knife containing
human blood Group 'A' Further the bushshirt and baniyan which were put on by the
accused at the time of incident were having
extensive blood stains which were also found
containing human blood group 'A'. Learned
counsel
for
the
appellant,
however,
contended that accused is also having blood
Group 'A' and that he was having injury on
the thigh as per the evidence of the Doctor. In
our view there is no substance in his
contention because as per the medical
evidence, the injuries caused to the accused
were minor and that because of such injuries,
there would not be extensive bloodstains on
the bush-shirt and baniyan put on by the
accused. In his 313 statement also, accused
has not explained how he got bloodstains on
his bush-shirt and baniyan. He has also not
denied the recovery of the said bush-shirt and
baniyan from his person at the time of his
arrest.

6. Hence, considering the above
stated evidence on record, it cannot be said
that High Court committed any error in
convicting the appellant for the offence
punishable under Section 302 IPC.

19. Further in the case of Ramesh
Harijan Vs. State of Uttar Pradesh
2012(5) SCC 777 para 23 and 24, the
Hon'ble Apex Court in paragraphs- 23 and
24, has held as under:-

23.
It
is
a
settled
legal
preposition
that
the
evidence
of
a
prosecution witness cannot be rejected in
toto merely because the prosecution chose
to treat him as hostile and cross examine
him.

24 The evidence of such witnesses
cannot be treated as effaced or washed off
the record altogether but the same can be
accepted to the extent that their version is
found to be dependable on a careful
scrutiny thereof.

In the case of Vinod Kumar Vs.
State of Punjab (2015) 3 SCC 220, the
Hon'ble Apex Court in paragraphs- 31 and
32 has held as under:-

31.
The
next
aspect
which
requires to be adverted to is whether
testimony of a hostile evidence that has
come on record should be relied upon or
not. Mr. Jain, learned senior counsel for
the Appellant would contend that as PW-7
has totally resiled in his cross-examination,
his evidence is to be discarded in toto. On a
perusal of the testimony of the said witness,
it is evincible that in examination-in-chief,
he has supported the prosecution story in
entirety and in the cross-examination he
has taken the path of prevarication. In
Bhagwan Singh v. State of Haryana (1976)
1 SCC 389, it has been laid down that even
if a witness is characterised has a hostile
witness his evidence is not completely
effaced.
The
said
evidence
remains
admissible in the trial and there is no legal
bar to base a conviction upon his
testimony, if corroborated by other reliable
evidence. In Khuji @ Surendra Tiwari v.
State of Madhya Pradesh (1991) 3 SCC
1 All. Smt. Sudha & Anr. Vs. State of U.P.
491
627, the Court after referring to the
authorities in Bhagwan Singh (supra),
Rabindra Kumar Dey v. State of Orissa
(1976) 4 SCC 233 and Syad Akbar v. State
of Karnataka (1980) 1 SCC 30, opined that
the evidence of such a witness cannot be
effaced or washed off the record altogether,
but the same can be accepted to the extent
it is found to be dependable on a careful
scrutiny thereof.

32. In this context, we think it apt
to reproduce some passages from Rammi
@ Rameshwar v. State of Madhya Pradesh
(1999) 8 SCC 649, where the Court was
dealing with the purpose of re-examination.
After referring to Section 138 of the
Evidence Act, the Court held thus:

17.
There
is
an
erroneous
impression that reexamination should be
confined to clarification of ambiguities
which have been brought down in crossexamination. No doubt, ambiguities can be
resolved through re-examination. But that
is not the only function of the re-examiner.
If the party who called the witness feels
that explanation is required for any matter
referred to in cross-examination he has the
liberty to put any question in reexamination to get the explanation. The
Public Prosecutor should formulate his
questions for that purpose. Explanation
may be required either when the ambiguity
remains regarding any answer elicited
during
cross-examination
or
even
otherwise. If the Public Prosecutor feels
that
certain
answers
require
more
elucidation from the witness he has the
freedom and the right to put such questions
as he deems necessary for that purpose,
subject of course to the control of the court
in accordance with the other provisions.
But the court cannot direct him to confine
his questions to ambiguities alone
which arose in cross-examination.

18. Even if the Public Prosecutor
feels that new matters should be elicited
from the witness he can do so, in which
case the only requirement is that he must
secure permission of the court. If the court
thinks that such new matters are necessary
for proving any material fact, courts must
be liberal in granting permission to put
necessary questions.

20. Accordingly, we are satisfied that
the learned trial court had meticulously
scrutinized the evidence available on record
and after following the proposition of law
laid down by the Hon'ble Apex Court in the
afore-noted decision had proceeded to
consider the statements of the hostile
witnesses, in so far as it supports the
prosecution version.

21. Learned counsel for the appellants has
next contended that the dying declaration of the
deceased/victim cannot be relied upon as the
same is doubtful and not corroborated by witness
of facts, hence it cannot be the sole basis of
conviction.

22. As far as the issue of dying declaration
is concerned, it has come on record that one Sri
Arun Kumar Mishra, the then S.D.M. Nazafgarh
and presently posted as Director Delhi Municipal
Corporation was examined as PW3. Dying
declaration as recorded by PW3 was after
obtaining the certificate of medical fitness from
the doctor. Even after completion of dying
declaration also the doctor as given a certificate
that during the course of the statement, fit state of
mind of the deceased was not there.

23.

The
reliability
of
dying
declaration has always been subject matter
492 INDIAN LAW REPORTS ALLAHABAD SERIES
of scrutiny before the courts of law and it
has been held that dying declaration is in
fact the statement of person, who cannot be
called a witness and therefore cannot be
cross-examined
and
same
cannot
be
brushed-aside. In case the Court comes to a
conclusion that dying declaration is true
and reliable and has been recorded by a
person at a time when the deceased was
physically and mentally fit to make the said
declaration then it can be the sole basis for
recording conviction.

24. In the case of Prakash and
another Vs. State of Madhya Pradesh
(1992) 4 SCC 225, the Hon'ble Apex Court
in paragraph-11 has held as under:-

11. After giving our anxious
consideration
to
the
facts
and
circumstances
of
the
case
and
the
arguments advanced by the counsel for the
parties and judgment delivered both by the
Additional Sessions Judge and the High
Court of Madhya Pradesh, it appears to us
that the fatal injuries had been inflicted by
Prakash with the gupti. The gupti was
recovered at the instance of the accused
and such recovery was not otherwise
possible if the accused himself had not
assisted for such recovery of the gupti. The
said gupti was stained with human blood
and no reasonable explanation has been
given by accused for such blood stain. The
injuries found on the person of the
deceased could be inflicted by a gupti and
complicity of Prakash in inflicting the fatal
injuries by gupti has been corroborated by
the eye-witness. There may be some minor
discrepancies in the evidence of the eyewitness but so far as the complicity of
Prakash is concerned, the depositions of
the eye-witnesses were consistent. In
discarding the evidence of the brother of
the deceased namely Ajay Singh the
learned Additional Sessions Judge was
influenced by the tender age of Ajay (about
14 years) and was of the view that he was
likely to be tutored. We do not think that a
boy of about 14 years of age cannot give a
proper account of the murder of his brother
if he has an occasion to witness the same
and simply because the witness was a boy
of 14 years it will not be proper to assume
that he is likely to be tutored. The High
Court has given very convincing reasons
for accepting the evidence of Ajay Singh as
an eye-witness of the murderous act and we
do not find any infirmity in the finding
made by the High Court. In so far as the
dying declaration is concerned, we are
inclined to accept the finding of the High
Court that the deceased was alive at least
up to half an hour after the assault. He had
been taken to the hospital where he
received some treatment for about 10-15
minutes. It is not borne out from the
evidence of the doctor that the injuries
were so grave and the condition of the
patient was so critical that it was unlikely
that he could make any dying declaration.
As a matter of fact, on second thought, the
learned Additional Sessions Judge has
accepted the dying declaration and has
convicted Prakash on the basis of dying
declaration. The injuries inflicted by
Prakash were very serious on vital parts of
the body causing death of the deceased
within a very short time. In such
circumstances, conviction under Section
302,
I.P.C.
and
sentence
of
life
imprisonment of the accused Prakash is
justified and no interference is called for.
In our view, the High Court has taken a
very reasonable view in convicting the
other accused namely Shiv Narayan under
Section 326 read with Section 34, I.P.C.
and has considered his case with such
sympathy as the said accused deserved by
sentencing him for imprisonment for the
1 All. Smt. Sudha & Anr. Vs. State of U.P.
493
period already undergone by him, for an
offence under Section 326 read with
Section 34, I.P.C. We, therefore, find no
reason to interfere with the conviction or
the sentence passed against the accused
Shiv Narayan. The appeals therefore fail
and are dismissed. The bail bond of the
accused Prakash is discharged and he
would surrender and serve out the
sentence.

25 . In the case of Laxman Vs. State
of Maharashtra (2002) 4 SCC 710, the
Hon'ble Apex Court in paragraph-11 has
held as under:-

The court, however has to always
be on guard to see that the statement of the
deceased was not as a result of either
tutoring or promoting 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
dying declaration look 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 in 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 is 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 record 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.

26 . In the case of Babulal and others
Vs. State of M.P. (2003) 12 SCC 490, the
Hon'ble Apex Court in paragraph-7 has
held as under:-

7. The pivotal point which was
pressed into service with some amount of
vehemence was acceptability of dying
declaration . There is no legal bar for the
information given by the deceased to be
treated as a dying declaration. This
position was stated succinctly by this Court
in Munnu Raja and Anr. v. State of M.P.
1976CriLJ1718 . Section 32 of the Indian
Evidence Act, 1872.
494 INDIAN LAW REPORTS ALLAHABAD SERIES

The materials on records clearly
established that the deceased was in
mentally fit condition, though battered in
the physical frame. The High Court has
rightly held that presence of PWs 1 and 2
did not result in any presumption of
tutoring, when the FIR was recorded.
Merely because there was a thumb
impression on the FIR, and not the
signature as stated by PW-1, that does not
falsify the prosecution version. The same
has been clarified by the High Court. It
has to be noted that PW-16, who had
scribed the FIR, stated that the contents
were read over to the deceased, who had
thereafter put his thumb impression. In
fact the defence itself has suggested to
PW-1 during cross examination that the
thumb impression was taken on the paper
first and thereafter the writings were
inserted. In other words, there was
acceptance of the fact that the thump
impression was there but writings were
done later which have been denied by PW1. We do not find any reason to discard
the dying declaration only on this ground.
The High Court has also found in
analyzing the evidence that the plea
relating to anti dating or anti timing of the
FIR is a myth. Though some of the
accused persons have been acquitted by
the trial Court, the High Court has
carefully analysed the evidence and have
sifted the grain from the chaff and
disengaged truth from falsehood.. Merely
because some persons have not been
named in the FIR and have given the
benefit of doubt, that cannot be a reason
for discarding the dying declaration or the
evidence of the witnesses.

27. In the case of Lakhan Vs. State
of Madhya Pradesh (2010) 8 SCC 514,
the Hon'ble Apex Court in paragraphs-18
and 19 has held as under:-

18. In Amol Singh v. State of M.P.
(2008) 5 SCC 468, this Court, placing
reliance upon the earlier Judgment in
Kundula Bala Subrahmanyam and Anr. v.
State of Andhra Pradesh (1993) 2 SCC
684, held that it is not the plurality of dying
declarations but the reality thereto that
aids weight to the prosecution's case. If a
dying declaration is found to be voluntary,
reliable and made in a fit mental condition,
it can be relied upon without any
corroboration. If there is more than one
dying
declaration,
they
should
be
consistent. In case of inconsistencies
between two or more dying declarations
made by the deceased, the Court has to
examine the nature of inconsistencies
namely, whether they are material or not
and in such a situation, the Court has to
examine the multiple dying declarations in
the light of the various surrounding facts
and circumstances.

19. In Heeralal v. State of
Madhya Pradesh (2009) 12 SCC 671, this
Court considered the case having two
dying declarations, the first recorded by a
Magistrate, wherein it was clearly stated
that the deceased had tried to set herself
ablaze by pouring kerosene on herself.
However, the subsequent declaration was
recorded by another Magistrate and a
contrary statement was made. This Court
set aside the conviction after appreciating
the evidence and reaching the conclusion
that the courts below came to abrupt
conclusions on the purported possibility
that the relatives of the accused might have
compelled the deceased to give a false
dying declaration. No material had been
brought on record to justify such a
conclusion.

28. In the case of Vijay Pal Vs. State
(Government of NCT of Delhi) (2015) 4
1 All. Smt. Sudha & Anr. Vs. State of U.P.
495
SCC 749, the Hon'ble Apex Court in
paragraph-22 has held as under:-

22. Thus, the law is quite clear
that
if
the
dying declaration dying
declaration is absolutely credible and
nothing is brought on record that the
deceased was in such a condition, he or she
could not have made a dying declaration to
a witness, there is no justification to
discard the same. In the instant case, PW-1
had immediately rushed to the house of the
deceased and she had told him that her
husband had poured kerosene on her. The
plea taken by the Appellant that he has
been falsely implicated because his money
was deposited with the in-laws and they
were not inclined to return , does not also
really breathe the truth, for there is even no
suggestion to that effect.

29. Another aspect also needs to be
considered i.e. the issue of reliability of the
dying declaration when the deceased had
sustained high degree of injuries. The Apex
Court has observed that it is not an abstract
principle of law that a dying declaration of
a person sustaining high degree of burn
injuries cannot be relied upon as the same
depends upon facts and circumstances of
every individual case.

30. In the matter of Mafabhai
Nagarbhai Raval Vs. State of Gujarat
(1992) 4 SCC 69 the Hon'ble Apex Court
in paras 3, 4 & 5 have held as under: -

3. The deceased aged about 40
years was the widow of one Savaji and was
living in a wooden cabin near the maternity
hospital in Harij and she was maintaining
herself by doing casual work in the
maternity hospital. She developed illicit
intimacy with the accused. Her grown-up
children
were
dissatisfied
with
her
character and other members of her
community were also dissatisfied. Since
then she was living alone in the wooden
cabin near the maternity hospital. There
was some quarrel between the accused and
the deceased. At about midnight on 9.7.78
the accused went to her cabin and
sprinkled kerosene oil on her and set fire to
her clothes and then fled. The deceased ran
from her cabin inside the compound of the
maternity hospital raising cries. One
Patavala Motibhai came there and put a
quilt on her body. The said Patavala
Motibhai went and informed the Medical
Officer, P.W. 2 of the Government Hospital
who immediately ran to the spot and
separated the burnt clothes from her body
and gave first aid. He questioned as to who
had set lire and the deceased replied that
the accused was the culprit. P.W. 2
recorded her statement which is the first
dying declaration in the case. P.W. 2
shifted her to the hospital and he himself
went to the police station and gave a
report. The police Jamadar also recorded
her statement in the hospital which is yet
another dying declaration in the case. By
that time information was sent to the
Taluka Magistrate with a request to record
the dying declaration. P.W. 3, the Taluka
Magistrate went to the spot and he also
recorded
the
dying declaration. The
deceased died in the early morning of
10.7.78. Inquest was held over the dead
body and post-mortem was conducted by
P.W. 2. The learned Sessions Judge, in our
view,
has
unnecessarily
doubted
the
veracity of P.W. 2, the Doctor. He observed
that the moment the flames had been seen
by the deceased on her person she must
have received a severe shock and the same
must have become "graver and graver" and
in that state of mind it is not believable at
all that the deceased could keep balance of
496 INDIAN LAW REPORTS ALLAHABAD SERIES
her mind and full consciousness so as to
make the statement. With this initial doubt
the learned Sessions Judge proceeded to
examine the evidence of the Doctor. The
Doctor stated that in some cases mental
shock immediately does . not develop and
that in the instant case the deceased
developed the mental shock for the first
time at 4 A.M. Thereafter it gradually
increased. The learned Sessions Judge
called it irresponsible statement. It is in the
medical evidence that 99% of the body of
the deceased was affected by extensive
bums and that the clothes of the deceased
were also burnt to ashes. Therefore, the
learned Judge thought that it was not at all
possible to believe that the lady might. have
developed the shock only at 4 A.M. and he
gave his firm opinion that the moment the
deceased had seen the flames she must
have sustained mental shock and these
circumstances convinced him that right
from the very beginning she must have been
under a mental shock and on that ground
the learned Judge disbelieved the Doctor.
Likewise he has pointed out certain
circumstances purely based on surmises
and on his inferences.

4. On the same process of
reasoning the learned Sessions Judge has
also doubted the evidence of P.W. 3, the
Executive Magistrate. The learned Judge
found fault with the procedure .