# Sudhir v. State of U.P. 374 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 2 ILRA 373
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** Criminal Appeal No. 3503 of 2012
- **Bench:** Pritinker Diwaker, A.C.J. Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhir-v-state-of-u-p-374-indian-law-reports-allahabad-series-49670
- **Pages:** 15

## Headnote

A. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Testimony of
hostile witness - testimony of hostile
witnesses can also be relied upon to the
extent, it supports the prosecution case -
the testimony of hostile witnesses should
be scrutinized meticulously and very
cautiously and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon - there is no legal bar to base
conviction upon hostile witness testimony
if corroborated by other reliable evidence
(Para 26, 34)

B. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Evidence Act,
1872 - Section 32 - Dying Declaration -
legal maxim nemo moriturus praesumitur
mentire, which means, "a man will not
meet his Maker with a lie in his mouth" -
reliability of dying declaration - in case the
Court comes to the conclusion that the
dying declaration is true and reliable, has
been recorded by a person at a time when
the deceased was fit physically and
mentally to make the declaration and it
has
not
been
made
under
any
tutoring/duress/prompting, it can be the
sole basis for awarding conviction - In
such an eventuality, no corroboration is
required - Held - In the instant case, dying
declaration
was
recorded
the
Nayab
Tehsilder,
Sadar,
after
obtaining
the
certificate of medical fitness from the
concerned doctor - none of the witnesses
or the authorities involved in recording
the dying declaration turned hostile - they
all fully supported the case of prosecution
- dying declaration was reliable, truthful
and
was
voluntarily
made
by
the
deceased, hence, the dying declaration
was acted upon without corroboration
and was made the sole basis of conviction,
despite the fact that dying declaration
was not corroborated by witnesses of fact
(Para 49, 58)

C. Criminal Law - Criminal Procedure Code
(CrPC) of 1973 - Section 313 - Power to
examine the accused - when the dying
declaration was put before the accused
persons / appellants in their Statements
under Section 313 CrPC, and it was
specifically asked as to what they have to
say regarding the Statement of the
deceased
mentioning
their
names
specifically as culprits, they simply denied
it and remained silent - Held - in the
Statement under Section 313 CrPC the
silence of accused leads to adverse
inference against them (Para 44)

Witnesses of fact in their oral testimonies
Stutied that they did not see as to how
victim received burn injuries and that the
victim had not told them as to who poured
kerosene upon her and set her ablaze -
informant & grand father of the deceased,
the uncles and the aunt of the deceased
turned
hostile
-
PW-1
the
father
of
appellant, who, though declared hostile on
the point that he had not seen the incident,
disclosed the name of both the appellants
as culprits, corroborates the prosecution
case in material aspects - He has seen the
deceased in burning condition - careful
scrutiny of his deposition assists to draw a
definite conclusion that the time and scene
of occurrence is fully proved by his
deposition, despite his hostility - the time of
the occurrence as well as the nature of the
injury as alleged by the prosecution are
corroborated by the evidence of hostile
witnesses
-
dying
declaration
of
the
deceased, affirmed the presence of both
the appellants on the place of occurrence at
the time of the incident (Para 28, 38)

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,846 of 49,264. This is a partial read: ask again with offset=39846 for what follows._

2 All. Sudhir Vs. State of U.P.
373

37. Similarly, recovery memo prepared
during the course of investigation qua blood
stained and plain earth, which are alleged to
have been recovered from the place of
occurrence, has not been proved by P.W.-5,
who is alleged to be a witness of such
recovery. P.W.-5 has stated that at the time of
preparation of such recovery, his signature has
been obtained by the Police on a blank paper.
The aforesaid fact also creates a dent on the
prosecution version.

38. Perusal of the site plan (Exhibit-ka/9) also
casts doubt in the prosecution case as the place
of occurrence as per the site plan and other
evidence on record, has been shifted. As per
the site plan prepared by P.W.-8 (Investigating
Officer), which has also been disclosed by him
in his statement during the course of trial, the
place of occurrence is 700 to 800 meters away
from G.T. Road, whereas as per the statement
of prosecution witnesses of fact i.e. P.W.-3 and
P.W.-4 the place of occurrence is near the
village Kateshar Bhusha Mandi Bawan Bigha
field (Maidan). Both the places are far away
from each other, meaning thereby that the
place of occurrence as per the prosecution has
been shifted, which make a flaw in the
prosecution case. The site plan also casts an
anomaly on the ground that the place from
where the prosecution witnesses of fact i.e.
P.W.-3 and P.W.-4 are alleged to have seen the
occurrence, when it occurred, has not been
marked.

39. We may also notice that on the basis
of written report of the first informant/P.W.-1,
the first information report has been lodged on
17th June, 2012 at 21:25 hrs. whereas in the
cross-examination, P.W.-8 has stated that he
reached the place of occurrence between 07:30
to 08:00 p.m. meaning thereby that the
investigation is ante-timed, which also creates
a dent on the prosecution version.

40. In view of the above discussions and
deliberation, we find that the trial court
although has referred to the testimony of
prosecution witnesses especially P.W.-3 and
P.W.-4 and the other prosecution evidence but
the same has not been carefully evaluated and
examined. We hold that prosecution has not
been able to establish the guilt of the accusedappellant beyond reasonable doubt. The
accused-appellant in the facts of the present
case is thus entitled to benefit of doubt.

41. Consequently, the appeal succeeds
and is allowed. The impugned judgment and
order of conviction and sentence dated
10.02.2021 is hereby set aside. The accused
appellant Rajendra Yadav, who is reported to
be in jail since 10th February, 2021, shall be
released forthwith, unless he is wanted in any
other case on compliance of Section 437-A
Cr.P.C.

42. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Chandauli
henceforth, who shall transmit the same to the
concerned Jail Superintendent for release of
the accused-appellant in terms of this
judgment.
----------
(2023) 2 ILRA 373
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, A.C.J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3503 of 2012
with
Jail Appal No. 4478 of 2012

Sudhir ...Appellant
Versus
State of U.P. ...Respondent
374 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Hemendra Pratap Singh, Sri Dinesh Kumar
Mishra, Sri Ankit Pathak, Sri Sautabh Yadav, Sri
Harish Chandra Tiwari(A.C.)

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Testimony of
hostile witness - testimony of hostile
witnesses can also be relied upon to the
extent, it supports the prosecution case -
the testimony of hostile witnesses should
be scrutinized meticulously and very
cautiously and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon - there is no legal bar to base
conviction upon hostile witness testimony
if corroborated by other reliable evidence
(Para 26, 34)

B. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Evidence Act,
1872 - Section 32 - Dying Declaration -
legal maxim nemo moriturus praesumitur
mentire, which means, "a man will not
meet his Maker with a lie in his mouth" -
reliability of dying declaration - in case the
Court comes to the conclusion that the
dying declaration is true and reliable, has
been recorded by a person at a time when
the deceased was fit physically and
mentally to make the declaration and it
has
not
been
made
under
any
tutoring/duress/prompting, it can be the
sole basis for awarding conviction - In
such an eventuality, no corroboration is
required - Held - In the instant case, dying
declaration
was
recorded
the
Nayab
Tehsilder,
Sadar,
after
obtaining
the
certificate of medical fitness from the
concerned doctor - none of the witnesses
or the authorities involved in recording
the dying declaration turned hostile - they
all fully supported the case of prosecution
- dying declaration was reliable, truthful
and
was
voluntarily
made
by
the
deceased, hence, the dying declaration
was acted upon without corroboration
and was made the sole basis of conviction,
despite the fact that dying declaration
was not corroborated by witnesses of fact
(Para 49, 58)

C. Criminal Law - Criminal Procedure Code
(CrPC) of 1973 - Section 313 - Power to
examine the accused - when the dying
declaration was put before the accused
persons / appellants in their Statements
under Section 313 CrPC, and it was
specifically asked as to what they have to
say regarding the Statement of the
deceased
mentioning
their
names
specifically as culprits, they simply denied
it and remained silent - Held - in the
Statement under Section 313 CrPC the
silence of accused leads to adverse
inference against them (Para 44)

Witnesses of fact in their oral testimonies
Stutied that they did not see as to how
victim received burn injuries and that the
victim had not told them as to who poured
kerosene upon her and set her ablaze -
informant & grand father of the deceased,
the uncles and the aunt of the deceased
turned
hostile
-
PW-1
the
father
of
appellant, who, though declared hostile on
the point that he had not seen the incident,
disclosed the name of both the appellants
as culprits, corroborates the prosecution
case in material aspects - He has seen the
deceased in burning condition - careful
scrutiny of his deposition assists to draw a
definite conclusion that the time and scene
of occurrence is fully proved by his
deposition, despite his hostility - the time of
the occurrence as well as the nature of the
injury as alleged by the prosecution are
corroborated by the evidence of hostile
witnesses
-
dying
declaration
of
the
deceased, affirmed the presence of both
the appellants on the place of occurrence at
the time of the incident (Para 28, 38)

Dismissed. (E-5)

List of Cases cited:

1. Koli Lakhmanbhai Chandabhai Vs St. of Guj.,
1999 (8) SCC 624

2. Ramesh Harijan Vs St. of U.P. , 2012 (5) SCC
777
2 All. Sudhir Vs. State of U.P.
375
3. St. of U.P. Vs Ramesh Prasad Misra & anr. ,
1996 AIR (Supreme Court) 2766

4. Bhagwan Dass Vs St. (NCT of Delhi), (2011)
6 Supreme Court Cases 396

5. Shivaji Sahab Rao Vs St. of Mah., 1973 SCC
(Cri) 1033

6. Prahlad Vs St. of Raj., (2019) 14 SCC 438

7. Pappu Tiwary Vs St. of Jharkhand, 2022 SCC
OnLine SC 109

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

9. Jitendra Kumar Vs St. of Har., (2012) 6 SCC
204

10. S.K. Sattar Vs St. of Mah., (2010) 8 SCC 430

11. Lakhan Vs St. of M. P., (2010) 8 Supreme
Court Cases 514

12. Krishan Vs St. of Har., (2013) 3 Supreme
Court Cases 280

13. Ramilaben Hasmukhbhai Khristi Vs St. of
Guj., (2002) 7 SCC 56

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Since these appeals have been
preferred against the same judgment and
relate to same Crime Number, they were
heard together and are being decided by a
common judgment.

2. The Additional Sessions Judge,
Court No.1, Ghaziabad by the judgment
and order dated 31.8.2012 passed in
Sessions Trial No. 826 of 2011 (Crime No.
29 of 2011), P.S. Bahadurgarh, District
Ghaziabad convicted and sentenced the
appellants under Section 302 I.P.C. read
with Section 34 IPC to undergo rigorous
life imprisonment with a fine of Rs. 5,000/-
each with stipulation of default clause.
Aggrieved with the said judgment, present
appeals have been preferred by the
appellants.

3. Brief facts, as culled out from the
record, are that a First Information Report
was lodged by the informant, Giri Raj son
of Sher Singh, resident of Palwara, Police
Station Bahadurgarh, District Agra, on
22.10.2011 at 10.15 p.m., with the
averments that his son Sompal was residing
separately. Smt. Karishma, daughter of
Sompal, was married with Sudhir son of
Tejveer, resident of village Gotka, police
station Sarurpur, District Meerut before two
years. For the last 15-20 days, Karishma
had been staying in the house of her father.
The informant had sold two bigha land for
Rs. 4,04,000/-, out of which Rupees One
Lakh came in Sompal's share and from then
Sompal was wasting money by drinking
alcohol. Two days ago Sompal had also
called Karishma's husband Sudhir. Sompal
and Sudhir both were drinking alchohal
since morning over which an altercation
took place between Karishma and these
two. Tonight at about 9.00 p.m. when
Sompal, Sudhir and Karishma were at
home, hearing the alarm, informant, his son
Upendra alias Pappi and his wife Smt. Bala
Devi, Raju son of Bhim Singh came to the
house of Sompal, they saw Karishma
coming out of the room burning. Sompal
and Sudhir came out behind her and ran
away seeing them. Karishma told them that
her father Sompal poured kerosene upon
her with intention to kill her and her
husband Sudhir set her ablaze. She was
serious and was brought Garhmukteshwar
for treatment.

4. On the basis of the written report
(Ext. ka-1), chik First Information Report
(Ext. Ka-7) was registered at Police Station
376 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned on 22.2.2011 at 10.15 p.m.
against
Sompal
(father)
and
Sudhir
(husband) at case crime no. 25 of 2011
under Sections 307 and 326 IPC.

5. On 23.2.2011, dying declaration of
the victim (Ext. ka-12) was recorded by the
Nayab Tehsildar, Sadar, Meerut. He also
took her thumb impression of right leg over
the same, as her hands were fully burnt.
Victim was conscious at the time of
statement. He also obtained certificate from
the concerned doctor in this regard.

6. Investigation started by the Station
House Officer of the concerned Police
Station. The Investigating Officer recorded
the statement of witnesses and victim. Site
plan was prepared. During course of
treatment, victim died on 16.3.2011 at 9.30
a.m. and case was converted into the
offence under Section 302 IPC. Inquest
report was prepared and post mortem of the
deceased was performed. After making
thorough investigation, charge sheet was
submitted
against
the
appellants.
Concerned Magistrate took the cognizance.
The case, being exclusively triable by
Sessions Court, was committed to the Court
of Sessions.

7. The charge framed was under Section
302 of IPC. The accused-persons pleaded
not guilty and wanted to be tried. Trial
started and in support of its case,
prosecution examined 10 witnesses, who
are as follows:

1
Giri
Raj
Singh
PW-1
(informant)
(grand father of the
deceased)
2
Raju
@
Ramendra
PW-2
(uncle
of
deceased)
3
Upendra @ PW-3
(uncle
of
Pappi
deceased)
4
Bala Devi
PW-4
(aunt
of
deceased)
5
Dr. Rajendra
Kumar
PW-5 (who medically
examined the deceased)
6
Dr.
Ram
Prasad
Sharma
PW-6
(Investigating
Officer)
7
H.C.
Ram
Charan
Singh
PW-7 (who proved the
signature of scribe)
8
Yogesh
Kumar
Sharma
PW-8 (who proved the
signature of Dr. Shweta
Garg, who performed
the
autopsy
of
the
deceased)
9
Hayat Singh PW-9 (proved Death
Summary Report)
10 Ranjit
Kumar
PW-10
(Nayab
Tehsildar,
Sadar,
Meerut, who recorded
the dying declaration of
deceased)

8. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Written report Ext. A-1
2
Another tehrir Ext. A-2
3
Site Plan
Ext. A-3
4
Fard
Ext. A-4
5
Fard
Ext. A-5
6
Charge sheet
Ext. A-6
7
Chik F.I.R.
Ext. A-7
8
G.D. Entry
Ext. A-8
2 All. Sudhir Vs. State of U.P.
377
9
G.D. Entry
Ext. A-9
10
Post
Mortem
Report
Ext A-10
11
Death
summary
report
Ext. A-11
12
Dying
declaration of
the deceased
Ext. A-12

9. After conclusion of evidence,
statement of accused appellants was
recorded under Section 313 CrPC, wherein
they pleaded their false implication and
claimed alibi.

10. In this matter, PW-1 (Giri Raj
Singh), PW-2 (Raju @ Ramendra), PW-3
(Upendra @ Pappi) and PW-4 (Bala Devi)
are the witnesses of fact.

11. These witnesses in their oral
testimonies have stated that they did not see
as to how Karishma received burn injuries.
They also stated that Karishma had also not
told them either on the day of incident or after
that as to who poured kerosene upon her and
set her ablaze. At that time, she was not in a
position to speak. These witnesses have been
declared hostile. However, PW-1 has proved
written
report
Ext.
ka-1
and
death
information of the deceased Ext. ka-2.

12. PW-5 to PW-10 are the formal
witnesses.

13. PW-5, Dr. Rajendra Kumar has
prepared the medico legal report Ext. ka-3
of the victim when she was alive and found
her in burnt condition.

14. PW-6, Dr. Ram Prasad Sharma is
the Investigating Officer of the case, who
has proved the proceeding of investigation
in his testimony and also proved the site
plan, other papers including charge sheet as
Ext. ka-3 to Ext. ka-6.

15. PW-7, Head constable Ram
Charan Singh is scribe of F.I.R., who has
proved
chik
F.I.R.
Ext.
ka-7
and
registration of amending G.D. as Ext. ka-8
and Ext. ka-9, respectively.

16. PW-8, Yogesh Kumar Verma, was
posted as Lab Assistant in Safdarjang
Hospital,
New
Delhi.
As
secondary
witness, he has proved the signature of Dr.
Shweta Garg, who has performed the
autopsy of the deceased and prepared the
Autopsy Report Ext. ka-10.

17. Autopsy report indicates that at
Safdarjung Hospital, Delhi the victim
expired on 16.3.2011 at 9.30 a.m. where
she was referred from L.L.R.M. Medical
College and associated SVBP Hospital,
Meerut on 23.2.2011 at 5.45 p.m.. She had
sustained 50% burn injury. Her both longs,
chest, membranes and brain alongwith
trachea and bronchi and liver, kidney and
spleen as well were found congested. As
per antemortem external injuries, the burnt
areas of the body were found as follows:

"Burnt areas on the body : Dermo
epidermal flame burn injuries present over
face, neck, chest, abdomen, whole of the
back, upper half of anterior surface of right
leg. Complete bald patch over head
present. The superficial layers of the skin
are burnt and peeled off at places revealing
yellowish greenish base covered with foul
smelling pus. The unpeeled skin is burnt
and blackened at places. Hairs over
involved part are burn and singed at
378 INDIAN LAW REPORTS ALLAHABAD SERIES
places. Approximate area of burn is 50% of
total body surface area."

18. In the opinion of the doctor death
was caused due to septicemic shock as a
result of ante mortem infected flame burns
and it occurred about one day before.

19. PW-9, Hayat Singh is the Lower
Division Clerk, Safdarjang Hospital, New
Delhi. He has proved the signature of Dr.
Shobha Jain, who has prepared the death
summary report of the deceased. He has
proved the Ext. ka-11.

20. PW-10, Ranjit Kumar, is the Nayab
Tehsildar, Sadar, Meerut. He has recorded the
dying declaration of the deceased. He has
stated that before recording the statement of
the victim, he had obtained fitness certificate
from the concerned doctor. Victim was
conscious and able to recognize the place and
man at that time. He has further stated that
when the questions were put to the victim as
to how she received burn injuries, she replied
that his father Sompal poured Kerosene upon
her and when she tried to escape, her husband
Sudhir threw a match upon her due to which
she caught fire and burnt. She also stated the
reasons for setting her ablaze.

21. On the basis of aforesaid oral and
documentary evidence, learned trial court
recorded the conviction of the accused and
sentenced them, as mentioned hereinabove.

22. Heard Shri Saurabh Yadav,
Advocate holding brief for Shri Ankit
Pathak, learned counsel for the appellant -
Sudhir, Shri Harish Chandra Tiwari,
learned Amicus Curiae for the appellant -
Sompal and Shri H.M.B. Sinha, learned
AGA for the State.

23. The impugned judgment and order
has been assailed mainly on two grounds
by the learned counsel for the appellants.
Learned
counsel
for
the
appellants
submitted that accused persons have been
falsely implicated in this case. They have
not committed the present offence. It is
further submitted by learned counsel that
all the witnesses of fact have turned hostile.
PW-1, the informant and grand father of the
deceased, PW-2, PW-3, the uncles and PW4, the aunt of the deceased have turned
hostile and do not support the prosecution
version. They are said to be the witnesses
of fact and on the basis of analysis of their
evidence, no guilt against the accused
appellants is established and proved.

24. Learned counsel for the appellants
next submitted that dying-declaration of the
deceased was recorded when she was
surviving, but this dying-declaration finds
no corroboration with any prosecution
evidence. All the witnesses of fact have
turned hostile and nobody supports the
version mentioned in dying-declaration.
Therefore, learned trial court committed
grave error in convicting the appellants on
the basis of dying-declaration only when it
was not corroborated at all.

25. Learned AGA, per contra,
vehemently opposed the arguments advanced
by learned counsel for the appellants and
submitted that conviction of accused can be
based solely on the basis of dyingdeclaration, if it is wholly reliable. It requires
no corroboration. Moreover, testimony of
hostile witnesses can also be relied upon to
the extent, it supports the prosecution case.
Learned trial court has rightly convicted the
appellants under Section 302 IPC and
sentenced accordingly. There is no merits in
the appeals and the same may be dismissed.
2 All. Sudhir Vs. State of U.P.
379

26. Upon entering into the established
legal area, the first issue raised by learned
counsel for the appellants seems to be
clumsy because the testimony of hostile
witnesses cannot be thrown away just on
the basis of the fact that they have not
supported the prosecution case and were
cross-examined by the prosecutor. The
testimony of hostile witnesses can be relied
upon to the extent, it supports the
prosecution case. Needless to say that the
testimony of hostile witnesses should be
scrutinized
meticulously
and
very
cautiously.

27. The points raised by learned
counsel for the appellants take us to the
testimonies of PW-1, PW-2, PW-3 and PW4.

28. PW-1 is the father of appellant
Sompal, who, though declared hostile on
the point that he had not seen the incident
and has denied the contents of his written
report Ext. ka-1 to the extent, it discloses
the name of both the appellants as culprits,
corroborates
the
prosecution
case
in
material aspects. He has seen the deceased
in burning condition in the night at 9.00
p.m. at the house of Sompal. It is pertinent
to mention here that PW-1 happens to be
the father of appellant Sompal and states
that Sompal lives separately from him. He
also affirms the fact that the appellant
Sudhir, husband of the deceased, had come
to the house of the other appellant Sompal
on the date of the occurrence. Though he
states that he had not seen the appellants
present over there at the time of occurrence
yet a careful scrutiny of his deposition
assists us to draw a definite conclusion that
the time and scene of occurrence is fully
proved by his deposition, despite his
hostility. He has seen the deceased in
burning condition and that is the case of
prosecution also. PW-1 also proves Ext. ka2, which is an application for information
to the police in respect of death of the
deceased.

29. Likewise, PW-2, who is the uncle
of the deceased, also proves the fact that
the deceased was seen by him in burning
condition at the same place and time, as
prosecution claims. His statement that both
the appellants were very fond of drinking,
offers relevant support to the prosecution
version.

30. PW-3, who is the brother of the
accused Sompal, in the same manner
proves the place of occurrence and burning
condition of the deceased and the time of
the incident as well.

31. The fact of burning of the
deceased is also affirmed by PW-4, aunt of
the deceased.

32. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat, 1999 (8) SCC 624, has held that
evidence of hostile witness can be relied
upon to the extent, it supports the version
of prosecution and it is not necessary that it
should be relied upon or rejected as a
whole. It is a 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.

33. In Ramesh Harijan vs. State of
U.P. , 2012 (5) SCC 777, the Hon'ble Apex
Court has also held that it is settled legal
position that the evidence of a prosecution
380 INDIAN LAW REPORTS ALLAHABAD SERIES
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witness cannot be treated
as effaced or washed off the record
altogether.

34. In State of U.P. vs. Ramesh
Prasad Misra and another , 1996 AIR
(Supreme Court) 2766, the Hon'ble Apex
Court held that evidence of a hostile
witness 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.

35. 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.

36. The aforesaid scrutiny of
deposition of PW-1, PW-2, PW-3 and PW-4
leads us to draw the conclusion that these
witnesses, despite their hostility, affirm the
time and place of the occurrence and the
cause of injury to the deceased.

37. All the aforesaid witnesses resiled
from their statements recorded under
Section 161 CrPC and turned hostile,
however, PW-6 the Investigating Officer,
firmly states that he had recorded the
statements of aforesaid witnesses during
course of investigation.

38. PW-6 has also made the
topography of the scene of occurrence and
prepared the site plan Ext. ka-3, which also
finds support from the statements of the
aforesaid four prosecution witnesses. PW-6
also proves the burnt pieces of ropes of cot,
can, and pieces of quilt and seizure memo
Ext. ka-4 has been proved by him. Besides
it, plain soil from earth and ash was also
taken from the place of occurrence and the
memo prepared has been proved as Ext. ka5 by the PW-6. All these facts are quite
discernible to prove that the place of
occurrence is the same as the prosecution
claims and also affirmed by the statements
of PW-1, PW-2, PW-3, PW-4 and by PW-6
as well. We have no hesitation to hold that
the time of the occurrence as well as the
nature of the injury as alleged by the
prosecution
are
corroborated
by
the
evidence of hostile witnesses i.e. PW-1,
PW-2, PW-3 and PW-4 as well and their
testimony is countenanced to that extent.

39. The conduct of PW-1, PW-2, PW3 and PW-4, who are family members and
related to both the appellants turning
hostile in their testimony before the Court
take us to the law laid down by the Hon'ble
Apex Court in Bhagwan Dass vs. State
(NCT of Delhi), (2011) 6 Supreme Court
Cases 396 wherein the mother of the
accused turned hostile and resiled from her
statement given to the Investigating Officer
and in the given facts and circumstances,
the Hon'ble Apex Court observed like this :

"15. The mother of the accused, Smt.
Dhillo Devi stated before the police that
her son (the accused) had told her that he
had killed Seema. No doubt a statement to
the police is ordinarily not admissible in
evidence in view of Section 162(1)Cr.PC,
but as mentioned in the proviso to Section
162(1) Cr.PC it can be used to contradict
the testimony of a witness. Smt. Dhillo Devi
also appeared as a witness before the trial
court, and in her cross examination, she
was confronted with her statement to the
2 All. Sudhir Vs. State of U.P.
381
police to whom she had stated that her son
(the accused) had told her that he had
killed Seema. On being so confronted with
her statement to the police she denied that
she had made such statement.

16. We are of the opinion that the
statement of Smt. Dhillo Devi to the police
can be taken into consideration in view of
the proviso to Section 162(1) Cr.PC, and
her subsequent denial in court is not
believable because she obviously had
afterthoughts and wanted to save her son
(the accused) from punishment. In fact in
her statement to the police she had stated
that the dead body of Seema was removed
from the bed and placed on the floor. When
she was confronted with this statement in
the court she denied that she had made
such statement before the police. We are of
the opinion that her statement to the police
can be taken into consideration in view of
the proviso of Section 162(1) Cr.PC."

40. If we translate the legal principle
emerged out from the aforesaid proposition
into the facts and circumstances of this
case, we can reach the conclusion that PW1, PW-2, PW-3 and PW-4 were lying before
the Court and whatsoever they had stated
before the Investigating Officer during
course of investigation was the true version
of the case and they deliberately turned
hostile and resiled from their earlier
statements given to the Investigating
Officer during the proceedings of evidence
in the Court. PW-6, the Investigating
Officer, has stated specifically that he had
recorded
the
statement
of
aforesaid
witnesses and denied the suggestion,
contrary to it, given by the defence, in his
testimony.

41. Learned counsel for the appellants
vehemently argued that since the witnesses
of fact adduced by the prosecution state in
clear terms that they did not see any of the
appellants present over the place of
occurrence at the time of incident, hence
they were not standing in need to adduce
any defence evidence of alibi i.e. in respect
of their absence at the place of occurrence
at the relevant time. Learned State counsel,
per contra, has vehemently argued that the
dying declaration of the deceased, which is
valuable and reliable piece of evidence,
affirms the presence of both the appellants
on the place of occurrence at the time of the
incident. We are going to discuss the
evidentiary value and reliability of the
dying declaration of the deceased in the
present case, later in this judgment, but
indubitably the burden to prove ''alibi' lies
upon the accused in all cases. Since there is
no evidence regarding alibi, we hold that
the plea of alibi taken by the appellants is
not sustainable and not proved at all.

42. In their statement under Section
313 CrPC, both the appellants have stated
that they were not present at the place of
occurrence at the time of the incident. We
have
perused
the
statement
of
the
appellants under Section 313 CrPC and
find that except the plea of alibi, there is a
mere denial on the part of the appellants to
the incriminating circumstances and the
evidence adduced by the prosecution
against them and nothing specific has been
claimed.

43. The nature and scope of statement
under
Section
313
CrPC
has
been
explained by the Hon'ble Apex Court in
Shivaji
Sahab
Rao
vs.
State
of
Maharashtra, 1973 SCC (Cri) 1033 and it
has observed that:

"The prisoner's attention should be
drawn to every inculpatory material so as
to enable him to explain it. Where such an
382 INDIAN LAW REPORTS ALLAHABAD SERIES
omission has occurred it does not ipso
facto vitiate the proceedings and prejudice
occasioned by such defect must be
established by the accused. It is open to the
appellate court to call upon the counsel for
the accused to show what explanation the
accused has as regards the circumstances
established against him but not put to him
and if the accused is unable to offer the
appellate court any plausible or reasonable
explanation of such circumstances, the
court may assumed that no acceptable
answer exists and that even if the accused
had been questioned at the proper time in
the trial court he would not have been able
to furnish any good ground to get out of the
circumstances on which the trial court had
relied for its conviction."

44. It is noteworthy that as an
incriminating evidence when the dying
declaration was put before the accused
persons / appellants in their statements
under Section 313 CrPC, and it was
specifically asked as to what they have to
say regarding the statement of the deceased
mentioning their names specifically as
culprits, they have simply denied it and
remained silent, whereas something more
was expected from them to meet out the
aforesaid specific incriminating evidence
like dying declaration of the deceased. We
can safely rely upon Prahlad vs. State of
Rajasthan, (2019) 14 SCC 438 here,
wherein it has been held that in the
statement under Section 313 CrPC the
silence of accused leads to adverse
inference against him.

45. It is pertinent to mention that to
take a specific plea of alibi by an accused
means that he talks completely out of the
scene when the crime was committed and
assures his presence anywhere else other
than the place of occurrence and that is
why the burden of proof in respect of plea
of alibi lies completely over the accused.
We find that no defence evidence has
been adduced by the appellants in the
present case in support of their plea of
alibi.

46. In umpteen cases, it has been
held that burden to prove plea of alibi lies
exclusively on the accused. The law was
reiterated by the Hon'ble Apex Court in
Pappu Tiwary vs. State of Jharkhand,
2022 SCC OnLine SC 109, wherein the
Hon'ble Apex Court referred Vijay Pal vs.
State (Government of NCT of Delhi,
(2015) 4 SCC 749 in which it was held
that the burden on the accused is rather
heavy and he is required to establish the
plea of alibi with certitude. The legal
principle laid down in Jitendra Kumar vs.
State of Haryana, (2012) 6 SCC 204 was
also referred and relied upon by the
Hon'ble Apex Court to the effect that "the
burden of establishing the plea of alibi
lay
upon
the
appellants
and
the
appellants have failed to bring on record
any such evidence which would, even by
reasonable probability, establish their
plea of alibi. The plea of alibi in fact is
required to be proved with certainty so as
to completely exclude the possibility of
the presence of the accused at the place
of occurrence and in the house which was
the home of their relatives."

47. In S.K. Sattar vs. State of
Maharashtra, (2010) 8 SCC 430, it was
clarified that plea of alibi has to be
established by the accused by leading
positive evidence. Failure of such plea
would not necessarily lead to success of
prosecution
case
which
has
to
be
independently
proved
by
prosecution
beyond reasonable doubt...... Plea of alibi
has to be proved with absolute certainty so
2 All. Sudhir Vs. State of U.P.
383
as to completely exclude possibility of
presence of appellant at the place of
occurrence at the relevant time.

48. So far as the dying-declaration is
concerned, it was recorded by Shri Ranjit
Kumar, Nayab Tehsildar, Sadar, Meerut,
who was examined as PW-10. Dyingdeclaration was recorded by him after
obtaining the certificate of mental-fitness
from doctor in the hospital. It is desirable
that statement of PW-10 should be referred
in verbatim as to what was actually stated
by the deceased, then injured and it is like
this :

" मैने ब्यान प्रश्न उिर के क्रम में दलखा है।
और अपने हस्तलेख में दलखा है। कररश्मा से यह
पूछने पर दक िुम कैसे जली िो उसने जवाब दिया
दक कल राि लगभग 10.30 बजे मेरे पापा
सोमपाल दसांह ने मेरे उपर दमटटी का िेल दछडक
दिया िथा जब मैं भागने लगी िो मेरे पदि ने मेरे
उपर िीली फेंक िी।

उसी से आग लग गई िथा मैं जल गई।
कररश्मा से यह पूछने पर दक िुम्हें क्ो जलाया िो
उसने जवाब दिया था दक मेरे दपिा िथा मेरे पदि
िोनोां साथ मे िारु पी रहे थे, मैने िारु पीने से मना
दकया, मैंने अपने पापा से कहा दक िुम खुि िारु
पी रहे हो िथा मेरे पदि को भी िारु दपला कर
बरबाि कर रहे हो इस पर मेरे पापा ने कहा दक िू
चुप रह नहीां िो िुझे मार डालेंगे। इस पर मेरे दपिा
जी के साथ झगडा हुआ, इस पर उसने दमटटी के
िेल का कनस्तर दलया िथा मेरे ऊपर डाल दिया,
जब मै भागने लगी िो उस समय मेरे पदि ने
मादचस की दिल्ली जलाकर मेरे ऊपर डाल िी
दजससे आग लग गयी। उसने यह भी बिाया दक
उसे अस्पिाल पप्पी चाचा व राजू चाचा लेकर
आये थे। यह पूछने पर दक िुम्हें जलाने में दकसका
हाथ है िो कररश्मा ने बिाया था दक मुझे जलाने में
मेरे पापा सोमपाल दसांह व मेरे पदि सुधीर का हाथ
है। इसके अलावा और कोई नहीां है। "

49. The law on the issue of dying
declaration can be summarized to the effect
that in case the Court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting, it can be the
sole basis for awarding conviction. In such
an eventuality, no corroboration is required.
It is also held by Hon'ble Apex Court in the
case of Lakhan vs. State of Madhya
Pradesh, (2010) 8 Supreme Court Cases
514 that a dying declaration recorded by a
competent Magistrate would stand on a
much higher footing than the declaration
recorded by office of lower rank, for the
reason that the competent Magistrate has
no axe to grind against the person named in
the dying declaration of the victim.

50. Deceased survived for 22 days
after the incident took place. Her dying
declaration was recorded by PW-10, Shri
Ranjit Kumar, the Nayab Tehsilder, Sadar,
Meerut after obtaining the certificate of
medical fitness from the concerned doctor.
This dying declaration was proved by him.
This witness is absolutely an independent
witness and has no grudge or enmity to the
convicts at all.

51. Learned counsel for the appellants
has argued that dying declaration is
doubtful and not corroborated by witnesses
of fact, hence, it cannot form the sole basis
of conviction. Legal position of dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
has summarized the law regarding dying
declaration in the case of Lakhan (supra).
In this case, Hon'ble Apex Court held that
384 INDIAN LAW REPORTS ALLAHABAD SERIES
the doctrine of dying declaration is
enshrined in the legal maxim nemo
moriturus
praesumitur
mentire,
which
means, "a man will not meet his Maker
with a lie in his mouth". The doctrine of
dying declaration is enshrined in Section 32
of Evidence Act, 1872, as an exception to
the general rule contained in Section 60 of
Evidence Act, which provides that oral
evidence in all cases must be direct, i.e., it
must be the evidence of a witness, who
says he saw it. The dying declaration is, in
fact, the statement of a person, who cannot
be called as witness and, therefore, cannot
be
cross-examined.
Such
statements
themselves are relevant facts in certain
cases.

52. As per the deposition of PW-10,
the dying declaration Ext. ka-12, was
recorded by him in the hospital on
23.2.2011, where the deceased, then in
injured condition, was admitted. The
Fitness certificate and the condition of the
patient was certified by the doctor prior to
recording of the statement and after its
recording, another certificate was endorsed
by the doctor that during course of the
statement patient had been conscious. The
dying declaration has been proved as Ext.
ka-12 by PW-10. It is noteworthy that PW10 also states that the hands of the injured
were burnt completely and that is why her
thumb impression could not be endorsed
over
the
statement
rather
right
toe
impression was endorsed thereon. Here our
attention is drawn to the statement of PW-5
Dr. Rajendra Kumar, who has also
corroborated this fact that when the injured
was brought to the hospital both of her
hands, chest, neck, face, upper part of the
left leg, left and right thigh were burnt.
Impression of her both toes were taken over
the medico legal register. This register has
been proved as Ext. ka-3 by PW-5. This
piece of deposition of PW-5 fortifies the
statement of PW-10 as to why right toe
impression was endorsed over the dying
declaration. It should be noted here that the
inquest report is not on record and the
Investigating Officer - PW-6 has stated in
his evidence that the inquest was performed
in Delhi and the inquest report was not
prepared by him. It appears that the
Investigating Officer has omitted to collect
the inquest report but it makes no
difference as the dying declaration is found
reliable and trustworthy and in light of this
evidence, the omission made by the
Investigating Officer does not affect the
prosecution case adversely. The reason of
the incident was also asked to the deceased
by PW-10 and she stated that her father and
husband were taking wine together and
when she showed her displeasure over it,
her father got angry and altercation took
place between the two. Her father scolded
her to keep quiet and threatened her for life.
He took up the kerosene tin and poured
over her and when she tried to run away,
her husband threw a burning match stick
over her which caught fire. Her uncle Pappi
and Raju took her to hospital. Again, she
specifically named her father Sompal and
husband Sudhir as the assailants. We do not
find any reason to doubt the credibility and
reliability of the deposition of PW-10, who
is an independent witness, and in the
circumstances
narrated
above
dying
declaration Ext. ka-12 is a reliable and
trustworthy piece of evidence.

53. In the wake of aforesaid judgment
of Lakhan (supra), dying declaration
cannot be disbelieved, if it inspires
confidence.
On
reliability
of
dying
declaration and acting upon it without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana, (2013) 3
Supreme Court Cases 280 that it is not an
2 All. Sudhir Vs. State of U.P.
385
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attending
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused.