# Sujeet v. State Of U.P

- **Citation:** (2026) 2 ILRA 1067
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-09
- **Case number:** Criminal Appeal No. 1633 of 2022
- **Bench:** Rajan Roy, Rajeev Bharti
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sujeet-v-state-of-u-p-54097
- **Pages:** 17

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2 All. Sujeet Vs. State Of U.P.
1067
victim and as to what her name was then also she could have been produced in the Court to get the
relevant information. But in the absence of these facts/informations when neither the relationship
nor the name of the relative was known, the prosecution could not call her to the witness box. Even
the court was clueless as to who had helped in getting the victim s statements recorded. We are also
of the view that when the victim was taken to AIIMS where she died after 18 days of treatment no
statement of her was got recorded, subsequent to the dying declaration as was got recorded on
5.12.2026. All these facts definitely go to indicate that the dying declaration on the basis of which
the prosecution depended much, was not a reliable piece of evidence. In fact, since the relevant
question about the circumstance that the relative had got the statement of the victim recorded was
not put to the accused, we are of the view that all that had been stated in the dying declaration
ought to be ignored and should not be considered as a piece of evidence at all.

31. Thus, we are of the view that there was absolutely no evidence on the basis which the
appellant could have been convicted. The judgment and order dated 19.2.2020 passed by the
Additional Sessions Judge, Court No. 3, Bijnor, in S.T. No. 120 of 2017 (State vs. Raees Ahmad &
another ) arising out of Case Crime No. 976 of 2016, under Sections 302/34, 326A/34, 342 and 201
IPC, Police Station Najibabad, District Bijnor cannot, therefore, be sustained in the eyes of law.
The judgment and order dated 19.2.2020 passed by the Additional Sessions Judge, Court No. 3,
Bijnor, in S.T. No. 120 of 2017 (State vs. Raees Ahmad & another ) arising out of Case Crime No.
976 of 2016, under Sections 302/34, 326A/34, 342 and 201 IPC, Police Station Najibabad,
District Bijnor is quashed and set aside. The appellant is acquitted of the charges as were levelled
against him. The appeal stands allowed. The appellant if is not required in any other case be
released forthwith.

32. Before parting with the judgment, I would like to put in a word of appreciation for my
Research Associate Mr. Abhishek Verma for his dexterity in research and superlative assistance in
drafting of this judgment.
---------
(2026) 2 ILRA 1067
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2026

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAJEEV BHARTI, J.

Criminal Appeal No. 1633 of 2022

Sujeet ...Appellant
Versus
State Of U.P. ...Respondent

Issue for Consideration
Matter pertains to "Whether the charge of murder against the appellant has been proved by the prosecution
beyond reasonable doubt?" (Para 12)
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Criminal Law - Penal Code, 1860 - S. 302 - Murder - Conviction based solely on dying declaration
- Reliability and mental fitness - Requirement of "fit state of mind" - Mere certification of
"consciousness" insufficient - Distinction between "conscious" and "fit state of mind" reiterated
- Dying declaration held unreliable. (Paras 25, 27, 30, 34, 42)
Criminal Trial - S. 313 Cr.P.C. - Non-putting of incriminating material (dying declaration) to
accused - Causes prejudice - Vitiates reliance on such evidence. (Paras 38, 39)
Evidence - Contradictions between FIR, medical evidence and dying declaration - Material
discrepancies regarding substance used and time of incident - Creates doubt. (Paras 34, 35)
Investigation - Defective investigation - non-production of earlier dying declaration - Failure to
examine treating doctors and collect bed-head tickets - Serious lapses affecting prosecution
case. (Para 41)
Criminal Jurisprudence - Benefit of doubt - Suspicion cannot take place of proof - Accused
entitled to acquittal where prosecution fails to prove case beyond reasonable doubt. (Paras 42,
44, 45, 46)
Held: In the absence of any recording of satisfaction with regard to mental fitness of the victim it does not
appear to be entirely safe to rely upon such dying declaration to convict the appellant - In medical science
two stages namely conscious and a fit state of mind are distinct and are not synonymous - The certification
was only to the effect that the victim was conscious and not that she was in a fit state of mind to make such
statement - Contents of dying declaration were not put to the accused during S.313 Cr.P.C. statement
prejudice is caused to the accused - The evidence on the point of dying declaration does not inspire
confidence and it cannot be relied upon - The prosecution has failed to prove the charge of murder against
the appellant beyond reasonable doubt - The appeal stands allowed the accused-appellant is acquitted - He
shall be released from jail forthwith (Paras - 25,27,30,38,42,44,46) (E-7)

Case Law Cited
Paparambaka Rosamma and others Vs. State of A.P. (1999) 7 SCC 695; Aejaz Ahmad Sheikh Vs. State of
Uttar Pradesh & another 2025 (2) ACR 804; Irfan @ Naka Vs. State of U.P. AIR 2023 SC 4129; Lokesh
and Ors. Vs. State of U.P. 2023 (3) ADJ 47; Naresh Kumar Vs. Kalawati and others (2021) 16 SCC 158;
Rameshwar Lal Chauhan Vs. State of U.P. 2023 SCC OnLine All 1127; Radhey Jaiswal and others Vs. State
of U.P. 2024 SCC OnLine All 2649; Dilawar Singh Vs. State of U.P. (2024); Samsul Haque Vs. State of
Assam (2019) 18 SCC 161; Laxman Vs. State of Maharashtra (2002) 6 SCC 710; Kanchy Komuramma Vs.
State of A.P. 1996 SCC (Cri) 31; Khushal Rao Vs. State of Bombay AIR 1958 SC 22

List of Acts
Indian Penal Code, 1860; Dowry Prohibition Act,1961; Code of Criminal Procedure, 1973; Evidence
Act,1872.

List of Keywords
Dying declaration; fit state of mind; conscious; mental fitness; benefit of doubt; defective investigation;
kerosene; petrol; contradictions; acquittal; beyond reasonable doubt.

Case Arising From
APPELLATE JURISDICTION: Appeal against "judgment and order 06.05.2022 passed by the learned Sessions
Judge, Lakhimpur Kheri in S.T. No.15 of 2019, arising out of Crime No.198 of 2018 convicting under S. 302
I.P.C.

Appearances for Parties
Advs. for the Appellant:
Shri Atul Verma
Advs. for the Respondents:
Shri Ravish Chandra Mishra, learned A.G.A.
2 All. Sujeet Vs. State Of U.P.
1069
(Delivered by Hon'ble Rajeev Bharti, J.)

1. The present criminal appeal under Section 374 (2) Cr.P.C. has been filed by the
accused/appellant, namely, Sujeet s/o Nanhke, r/o Mohalla Haniya Tola, Police Station- Kheri,
District- Lakhimpur Kheri challenging the judgment and order 06.05.2022 passed by the learned
Sessions Judge, Lakhimpur Kheri in S.T. No.15 of 2019, arising out of Crime No.198 of 2018,
Police Station- Kheri, District- Lakhimpur Kheri, convicting and sentencing the appellant to
undergo life imprisonment under Section 302 I.P.C. with a fine of Rs.5,000/-. In default of payment
of fine to further undergo one month simple imprisonment. The accused/appellant was acquitted
from the charges under Sections 498-A, 304-B I.P.C. and Section 4 of D.P. Act. The alternate
charge under Section 302 I.P.C. was found proved. The appellant is in jail. He remained
incarcerated for 8 years, 01 month and 08 days with remission as per Report dated 18.11.2025.

Factual Matrix of the case

2. Prosecution story, in brief, is that the deceased Hema, wife of the appellant, was subjected
to cruelty for dowry and was set on fire on 16.06.2018, as a result she succumbed to her burn
injuries on 05.07.2018. The complainant, father of the deceased, Raju (P.W.1), lodged a police
report on 16.06.2018 stating that he had solemnized marriage of his daughter Hema about three
years ago with Sujeet s/o Nanhke, r/o Haniya Tola, Kheri. On 16.06.2018 at about 8:00 P.M. he
heard some noise and came in the locality and when he went towards that place, he saw that there
was chaos in the house where his daughter was married, when he reached near the house, he found
his daughter Hema was burning with fire outside the door of the house. There was no person
present inside the house, as all had fled. Raju-PW-1, in his statement, has stated that when the
deceased was taken to hospital by the accused, he also went along. He has further stated that his
daughter (deceased) was suffering from mental illness and, on account of the same, she poured oil
on herself and set herself ablaze. He has also stated that accused Sujeet had got Hema treated.
According to the complainant, his son-in-law, Sujeet s/o Nanhke along with mother-in-law-Arjunia
and sisters-in-law, namely, Rekha, Shakuntala and Rinki, set his daughter ablaze. He (the
complainant) had made every possible efforts to save his daughter, but she had already sustained
severe burn injuries. He immediately took his daughter to the District Hospital where her condition
was stated to be extremely serious.

3. On the basis of the aforesaid report, FIR under Sections 147, 307 I.P.C. came to be lodged
on 17.06.2018 at 12:05 P.M. and was registered by Shri Umesh Pratap Singh (P.W.8), Constable at
Nighasan Police Station, who deposed that he was present at the Kheri Police Station on that date
and at about 12:05 P.M., the complainant, Raju s/o Thakur Prasad, r/o Bukhari Tola, Kheri town
and police station, came to the police station and submitted a written complaint. He deposed that
investigation of the case was assigned to Sub-Inspector Shri Vishambhar Dayal Singh. During
cross-examination, Shri Umesh Pratap Singh (P.W.8) deposed that the informant reached alone at
the police station at 12:05 P.M. to lodge the complaint and informed that the victim/deceased was
hospitalized.

4. Shri Vishambhar Dayal Singh- Sub Inspector (P.W.9), who was initially appointed as
Investigating Officer in the case, deposed that in the year 2018, he was posted as In-charge of Kheri
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station. FIR No.198/2018, under Sections 307 and 147 of I.P.C. was registered at the police
station and the investigation was assigned to him. He further deposed that on the same date, i.e.
27.07.2018, Section 147 of I.P.C. was dropped, and Sections 498-A, 304-B of IPC and Sections 3/4
of the Dowry Prohibition Act were added (after she died), and investigation was handed over to the
Circle Officer, Sadar. He further deposed that he inspected the incident site on 18.06.2018, and
prepared a sketch map of the incident.

5. During cross-examination, Shri Vishambhar Dayal Singh- Sub Inspector (P.W.9) deposed
that he took charge of the case on 17.06.2018, though he could not recall the exact time. He further
deposed that he got information that the victim/deceased was admitted to the District Hospital,
Kheri, but, he visited the hospital only on 18.06.2018 due to other works. He further deposed that
he did not examine the bedhead ticket despite knowing the ticket contained crucial treatment
details, nor record statements of the attending doctors or nurses. He further deposed that he visited
site of the incident before going to hospital, accompanied by the informant, and prepared a site map
(Exhibit A-5). He further deposed that he could not recall the starting or ending time of his
investigation on 18.06.2018 and admitted to not marking these time on the case diary slips. He
further deposed that while he got information that the victim/deceased was burnt with kerosene, he
did not record medical statements regarding the same.

6. Shri R.K. Verma, Investigating Officer (P.W.10) deposed that on 28.07.2018, he was posted
as Circle Officer Sadar, Lakhimpur Kheri. He was assigned the investigation of Case No.198/2018
under Sections 498-A, 304-B of I.P.C. and Sections 3/4 of the Dowry Prohibition Act, Police
Station Kheri, District Kheri, from Shri Vishambhar Dayal Singh- Sub Inspector (P.W.9). He
further deposed that on 28.07.2018, he prepared memo no.9 and took over the investigation,
reviewed the previously prepared memos, and examined the inquest report and post-mortem report.

7. During cross-examination, Shri R.K. Verma, Investigating Officer (P.W.10) deposed that
the case was initially registered under Sections 307/147 I.P.C., but it was subsequently converted to
Sections 498A/304B I.P.C. and Sections 3/4 of the Dowry Prohibition Act. He further deposed that
initial medical examination of the victim/deceased on 16.06.2018, recorded the smell of kerosene,
though he could not verify the duration of her (victim) stay at the District Hospital. He further
deposed that he did not examine the bed head tickets or record the statements of the doctors who
had treated the victim at either the District Hospital, Lakhimpur Kheri or Dr. Shyama Prasad
Mukherjee Civil Hospital, Lucknow, where the victim/deceased succumbed to her injuries.

8. As per medical reports, the victim/deceased was got admitted at District Hospital,
Lakhimpur Kheri by father of the deceased. The victim/deceased remained admitted in hospital as
per the bed head ticket, which was submitted before the learned trial court by Dr. Rajesh Kumar -
D.W.1. In his examination-in-chief, Dr. Rajesh Kumar-D.W.1 stated that on 18.06.2018 at 12:40
P.M. father of the deceased, namely, Raju (P.W.1) made the following endorsements 'my patient
was referred to Lucknow and Ambulance-108 had arrived, but I did not take my patient to Lucknow
and I sent the ambulance back.' Treatment of the deceased continued at District Hospital, Kheri
from 17.06.2018 till 27.06.2018. Subsequently, when condition of the deceased started
deteriorating, she was got admitted to Dr. Shyama Prasad Mukherjee Civil Hospital at Lucknow on
27.06.2018 where her dying declaration was recorded on the same day.
2 All. Sujeet Vs. State Of U.P.
1071

9. The deceased was medically examined at District Hospital, Lakhimpur Kheri at 10:10 P.M.
on 16.06.2018 and Dr. Rajesh Kumar- P.W.12 recorded approximately 80% burn injuries and
specifically noted smell of kerosene oil coming out from the body and clothes of the victim.

10. The prosecution examined Dr. Rajesh Kumar as P.W.-12 before the Court. Subsequently,
the defence examined the said witness as D.W.-1 and sought to prove the bed-head ticket and
further attempted to establish that the deceased had also made a dying declaration on 17.06.2018,
though the same was not made in the presence of this witness.

11. On 06.07.2018 at 3:25 P.M. Dr. Girish Kumar Sharma-P.W.7, Consultant at Balrampur
Hospital, Lucknow, conducted post-mortem examination of the deceased, Mrs. Hema Pandey, aged
22 years. Video-recording of the same was done by one Amitabh Singh. During post-mortem
examination, post-mortem staining was found on the body of deceased in the areas that were not
burnt. Rigor-mortis was present throughout the body. There were 90% ante mortem injuries on
body of deceased and the cause of death was shown as septicemia. The following ante-mortem
injuries were found on the body of deceased:-

"Injury no.1: A septic burn wound, extending from the surface to the deeper tissues, was
present all over the body, except on the top and back of the head.

Injury no.2: The genital area was not burned.

Injury no.3: The areas below both knees and the back of the hips (buttocks), the soles and
toes of the feet were not burned. Thick pus was present in the burn wounds. Upon opening and
sectioning, pus spots were present in both lungs, liver, spleen and both kidneys.'

12. On the basis of the grounds urged in the memorandum of appeal and submissions
advanced, the following point arises for determination.

(i) Whether the charge of murder against the appellant has been proved by the
prosecution beyond reasonable doubt?

13. In this appeal, it is noteworthy to mention here that Raju- P.W.1, Uma Devi' P.W.2,
Kasturi- P.W.3, Pramod Kumar -P.W.4 and Manohar Lal- P.W.5, who are father, maternal aunt,
mother and close relatives of the deceased, have turned hostile.

14. Raju' P.W.1 has categorically stated that the deceased was mentally ill and had poured
kerosene oil on herself and that the complaint was lodged under the pressure of relatives. Although
he did not see her pouring kerosene oil. From the medical evidence it is proved that death was not
natural. Question is was it a murder? If so, whether appellant/husband has committed it.

15. Raju-P.W.1, in his statement, has stated that when the victim/deceased was taken to the
hospital by the accused, he also went along. He further stated that his daughter (deceased) was
suffering from mental illness and, on account of the same, she poured oil on herself and set herself
ablaze. He has also stated that accused Sujeet had got Hema treated.
1072 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The prosecution rests its case entirely on the dying declaration recorded on 27.06.2018 at
Dr. Shyama Prasad Mukherjee Civil Hospital in Lucknow. The dying declaration dated 27.06.2018
reads as under.

"प्रमाकणत ककया जाता है कक हेमा पाण्डेय उम्र लगभग 22 years पत्प्नी सुजीत पाण्डेय कनवासी ग्राम हकनया टोला पो०-खीरी कजला-
लखीमपुर जो इस कच० में Old Burn Injury के कारण कद० 27/6/18 समय 1:22 PM पर भती हुई थी जो आज कद० 27/6/18 समय
5:20 PM पर मृत्प्यु पूवद बयान के समय पूरी तरि से िोशोिर्वाश में िै।

Dr. Sandhya Chaudhary
27/6/18
कद० 27/6/18 समय 5:47 PM

'मेरा नाम हेमा पाण्डेय है। मेरे पकत का नाम सुजीत पाण्डेय है। मेरी उम्र 22 वर्द है। मैं ग्राम हकनया टोला पो० खेरी खेरी कजला लखीमपुर खीरी की
रहने वाली ह ूँ। सुबह 7, 8 बजे 16 जून को हमारे पकत और सास में लडाई हो रही थी। हमारे पकत को गुस्सा आ गया उसने घर में खडी मोटर साइककल में
से पेरोल कनकाल कर मेरे ऊपर डाल कदया और मुझे कमरे में बंद करके मेरे उपर माकचस फेंक कर जला कर कमरे से भाग गया और कमरा बंद कर कदया। हम
कमरे में जलने लगे। मैंने भाग के कमरा खोला कफर हम बाहर भागे। बाहर टोले वालों की भीड आ गयी थी वो हमारे उपर लगी आग को बुझाये मैं बेहोश हो
गयी। मेरी सास, मेरी नंदे सब बहुत बदमाश है। हमको परेशान करती रहती है। मैं यह बयान ककसी दबाव में नही दे रही ह ूँ। भगवान कसम हम सही बोल रहे
है'।

बयान मेरे द्वारा कलया अंककत ककया गया।

ह० अपठनीय

 ह० अपठनीय
27/6/2018
ACM VI

प्रमाकणत ककया जाता है, हेमा पाण्डेय उम्र लगभग 22 years पत्प्नी सुजीत पाण्डेय जो आज कद० 27/6/18 समय 5:47 PM पर मृत्प्यु पूवद
बयान के समय पूरी तरि से िोशोिर्वास में थी।"

Dr. Sandhya Chaudhary
27/6/18

17. The trial court on the basis of evidence referred above, convicted the accused/appellant
and sentenced as mentioned above.

18. Heard Shri Atul Verma, learned counsel for the appellant, Shri Ravish Chandra Mishra,
learned A.G.A. for the State and perused the record.

Submission made by learned counsel for the appellant

19. Learned counsel for the appellant-accused argues that the dying declaration is not reliable
and has incorrectly been treated to be a fair piece of evidence by the trial court. In support of his
submission, learned counsel for the appellant has primarily urged that no satisfaction has been
recorded by the doctor with regard to 'fit mental state' of the victim and, therefore, it is alleged that
2 All. Sujeet Vs. State Of U.P.
1073
in absence of any certification by the doctor with regard to the 'fit mental state' of the victim, the
dying declaration cannot be relied upon. It is also urged that the dying declaration cannot be
otherwise looked into as the contents of the dying declaration was not put up to the accused while
recording his statement under Section 313 Cr.P.C.

20. In support of its case, learned counsel for the appellant has relied upon the following
judgments :-

(i) Paparambaka Rosamma and others Vs. State of A.P. reported in (1999) 7 SCC
695;

(ii) Aejaz Ahmad Sheikh Vs. State of Uttar Pradesh & another, 2025 (2) ACR 804;

(iii) Irfan @ Naka Vs. The State of U.P., 2023 AIR SC 4129;

(iv) Lokesh and Ors. Vs. State of U.P. (Criminal Appeal No.1371 of 2015, decided on
28.01.2023), reported in 2023 (3) ADJ 47;

(v) Naresh Kumar Vs. Kalawati and others, reported in (2021) (16) SCC 158;

(vi) Rameshwar Lal Chauhan Vs. State of U.P. : 2023 SCC OnLine All 1127;

(vii) Radhey Jaiswal and others Vs. State of U.P. : 2024 SCC OnLine All 2649;

(viii) Dilawar Singh Vs. State of U.P. (Criminal Appeal No. 5591 of 2019, decided on
09.08.2024) and

(ix) Samsul Haque Vs. State of Assam : (2019) 18 SCC 161.

Submission made by learned A.G.A.

21. Learned A.G.A., on the other hand, submits that the judgment and order of conviction
dated 06.05.2022 passed by the learned Sessions Judge, Lakhimpur Kheri, is well reasoned, based
on proper appreciation of evidence and does not suffer from any illegality, perversity or material
irregularity warranting interference by this Court in Appellate Jurisdiction. He further submits that
law is well settled that a conviction can be based solely on the dying declaration if it is found to be
voluntary, truthful and reliable and no corroboration is required as a matter of rule.

22. With respect to the alleged earlier dying declaration dated 17.06.2018, learned A.G.A.
submits that no contents of such statements have been proved on record and, therefore, mere
reference to its existence does not dilute the evidentiary value of the later dying declaration dated
27.06.2018, which has been duly proved.
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Learned A.G.A. lastly submits that even if certain lapses are pointed out in investigation, a
defective investigation by itself is not a ground for acquittal, especially when there is other reliable
evidence on record clearly pointing towards the guilt of the accused.

Analysis

24. We have noticed that the prosecution's case rests primarily on the dying declaration of the
deceased and, therefore, it is to be seen whether the dying declaration can be relied upon in support
of the prosecution case on the specific contention urged by the appellant questioning it?

25. The dying declaration has already been extracted hereinabove. We find that the
certification made by the doctor does not record conscious satisfaction with regard to fit mental
state of the victim, wherein alone the victim could have made a valid dying declaration. The
reasons for the same are apparent on the face of the record. In the present case, the victim had
sustained 90% burn injuries. In such physical state, the victim would be traumatized and the
doctors usually administer various medication to relieve pain etc., but the effect of such medication
would have to be examined. Some medications may cause drowsiness or the traumatized condition
of the victim may cause hallucinations, etc. Doubt would arise with regard to mental state of the
victim and unless the doctor certifies the mental fitness of the victim, the Court usually would be
reluctant in relying upon such dying declaration. It is in this context that we find substance in the
argument of learned counsel for the appellant that, in the absence of any recording of satisfaction
with regard to mental fitness of the victim, factually, at the time of making dying declaration, it
does not appear to be entirely safe to rely upon such dying declaration to convict the appellant for
committing murder.

26. In this regard the learned counsel for the accused-appellant has placed reliance upon a
judgment of this Court in Lokesh and Ors. (supra), wherein this Court has made following
observations in para-45 to 50:

'45. It has therefore to be seen as to whether the victim was in a position to make her
dying declaration and whether necessary precaution had been taken by the prosecution to ensure
that victim was in a proper mental shape to make a declaration.

46. The primary evidence that the victim was in a fit mental state to make a dying
declaration is of the attending doctor who has been produced as P.W.-13. We have noticed that this
witness in his statement has mentioned the critical situation of the victim. There is no satisfaction
recorded by the doctor on the dying declaration that victim was in a fit mental state to give a
voluntary statement. P.W.1 has otherwise admitted that the victim was unconscious when she was
brought to the S.N. Medical College at around 6:00 pm. He has also admitted that only after
administering of first aid, the condition of the victim improved and she became conscious. It is not
clear as to what kind of first aid was given to the injured victim but considering her serious
condition, it is logical to expect that some short of pain killer may have been given to her. In such
circumstances, mere recording of satisfaction by the doctor that patient was conscious, was not
sufficient. A specific satisfaction was warranted regarding fit metal state of the victim. No such
satisfaction has been recorded by the doctor. Merely stating that the patient is clinically fit does
2 All. Sujeet Vs. State Of U.P.
1075
not amount to a satisfaction with regard to fit mental state of the patient. The ability of the victim
to speak was severely compromised as per the prosecution evidence itself.

47. We are therefore doubtful of the victim being in a proper mental shape to have given
a conscious voluntarily statement which could qualify to be a dying declaration. The
Magistrate/Deputy Collector who has recorded the dying declaration of the victim has also
admitted that no questions were put to the victim regarding her fit mental state.

48. At this juncture, we would like to refer to the observation of the Supreme Court in
Paparambaka Rosamma & Others Vs State of Andhra Pradesh reported in (1999) 7 SC 695,
wherein the Court while referring to the dying declaration observed that mere statement that
patient is conscious while recording the statement is not sufficient. In a case where injured had
sustained 90% burn injuries, it was necessary to ascertain the fit mental state of the injured
before accepting the dying declaration. Paragraph- 9 of the judgment is reproduced hereunder:-

"9. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the
dying declaration had certified patient is conscious while recording the statement. It has come on
record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person.
Dr. P. Koteswara Rao (PW 9) who performed the post mortem stated that injured had sustained
90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying
declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being
genuine, true and free from all doubts and it was recorded when the injured was in a fit state of
mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt.
K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to
certify that the injured was in a fit state of mind at the time of recording the dying declaration. The
certificate of the said expert at the end only says that patient is conscious while recording the
statement. In view of these material omissions, it would not be safe to accept the dying declaration
(Ex.P-14) as true and genuine and was made when the injured was in a fit state of mind. From the
judgments of the courts below, it appears that this aspect was not kept in mind and resultantly
erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and was made when the
injured was in a fit state of mind. In medical science two stages namely conscious and a fit state
of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit
state of mind. This distinction was overlooked by the courts below."

(Emphasis supplied by us)

49. The observation made in the case of Paparambaka Rosamma (supra) has been
reiterated in a subsequent decision of the Supreme Court in the case of Naresh Kumar Vs.
Kalawati & Others reported in (2021) (16) SCC 158, wherein the Supreme Court after referring to
the above quoted paragraph no.9 observed as under in para-13:-

"13. In the facts and circumstances of the present case, considering that the statements of
the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make
the dying declaration including the presence of the Doctor, the veracity and truthfulness of the
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
dying declaration remains suspect. It would not be safe to simply reject the probable defence of
suicide, to reverse the acquittal and convict the respondents."

(Emphasis supplied by us)

50. The statement of the Magistrate/Deputy Collector is categorical that the contents of
the dying declaration were not read out to the victim and no satisfaction in that regard is otherwise
recorded in the dying declaration. In Suriender Kumar Vs. State of Haryana reported in (2011)
10 SCC 173, the Supreme Court questioned the dying declaration also on the ground that such a
satisfaction about the contents of the dying declaration having read out to the victim was missing.
In paragraph no. 25 of the judgment, the Supreme Court observed as under:-

"25. As per the prosecution, the incident took place at 2 a.m. on 26.06.1991 and as per
her statement, the occurrence of burning was in the evening of 25.06.1991, that is, the previous
day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect
that it was a voluntary statement made by the deceased and that he had read over the statement
to her. The dying declaration was not even attested by the doctor. As stated earlier, though the
Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and
the statement was recorded only in Hindi. Another important aspect is that there was evidence that
Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed
to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration
altogether shrouded by suspicious circumstances and contrary to the story of prosecution and
acquitted the appellant."

(Emphasis supplied by us)

27. In Paparambaka Rosamma (supra), which has been relied in the above noted judgment
in Lokesh (supra), it has been categorically held that in medical science two stages namely
conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but
not necessarily in a fit state of mind.

28. The certification of the dying declaration dated 27.06.2018 only reports that the victim
(deceased) was 'conscious'. Dr. Sandhya Chaudhary ' P.W.11 admitted that burn patients are
administered sedative drugs and she did not verify what drugs were given to the victim (deceased).
The distinction between 'consciousness' and 'fit mental state' has been authoritatively explained by
Hon'ble the Supreme Court in Paparambaka Rosamma and others (supra) holding that absence
of certification regarding mental fitness renders the dying declaration unreliable.

29. The above view has been followed consistently by Co-ordinate Benches of this Court in
Rameshwar Lal Chauhan (supra), Radhey Jaiswal and others (supra) and Dilawar Singh
(supra).

30. The certification by the Doctor Sandhya Chaudhary (P.W.11) put before recording of the
alleged dying declaration was only to the effect that the victim was of fully conscious and not that
she was in a fit state of mind to make such statement.
2 All. Sujeet Vs. State Of U.P.
1077

31. It is noteworthy that while recording the dying declaration, the Magistrate has to satisfy
himself before recording the dying declaration regarding fit state of mind of the victim. Shri
Abhishek Pathak- P.W.6, Sub-Divisional Magistrate, who recorded the dying declaration in the
present case, has stated in his cross-examination- 'that at the time he was recording the statement,
the deceased was in a fit mental state to give a statement, and he could not tell to what extent the
deceased was burnt'. It is questionable how Shri Abhishek Pathak-P.W.6 came to the conclusion
that the victim was in a "fit state of mind". It is also not clear from the record whether he put forth
certain questionnaire to the victim to ascertain that she was in a 'fit state of mind', as, Hon'ble Apex
Court in the case of Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 while
considering such a factual situation has observed that 'it is indeed a hyper-technical view that the
certification of the doctor was to the effect that the patient is conscious and there was no
certification that the patient was in a fit state of mind specially when the Magistrate categorically
stated in his evidence indicating the questions he had put to the patient and from the answers
elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying
declaration." In the case at hand, not only the doctor merely says that the victim was conscious, the
Magistrate does not give the basis for his satisfaction as to her mental fitness. He did not put any
question to her to satisfy himself in this regard.

32. Further, it is also pertinent to mention here the decision of Hon'ble Apex Court in the case
of Kanchy Komuramma Vs. State of A.P. reported in 1996 SCC (Cri) 31 wherein it has been
held that the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of
truthfulness of the dying declaration, which, in order to earn acceptability, has still to pass the test
of scrutiny of the court. There are certain safeguards that must be observed by a Magistrate when
requested to record a dying declaration. The Magistrate, before recording the dying declaration,
must satisfy himself that the deceased is in a proper mental state to make the statement. He must
record that satisfaction before recording the dying declaration and he should also obtain the
opinion of the doctor, if one is available, about the fitness of the patient to make a statement, and
the prosecution must prove that opinion at the trial in the manner known to the law.

33. No such exercise was done by the Magistrate in this case. We may also refer to the case of
Khushal Rao Vs. State of Bombay reported in AIR 1958 SC 22, decided by a three Judges
Bench of Hon'ble Supreme Court, where the law regarding evidentiary value of dying declaration
has been discussed and it has been observed as follows :-

"(16) On a review of the relevant provisions of the Evidence Act and of the decided cases
in the different High Courts in India and in this Court, we have come to the conclusion, in
agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it
cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis
of conviction unless it is corroborated; (2) that each case must be determined on its own facts
keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be
laid down as a general proposition that a dying declaration is a weaker kind of evidence than other
pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of
evidence and has to be judged in the light of surrounding circumstances and with reference to the
principles governing the weighing of evidence; (5) that a dying declaration which has been
recorded by a competent magistrate in the proper manner, that is to say, in the form of questions
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a
much higher footing than a dying declaration which depends upon oral testimony which may suffer
from all the infirmities of human, memory and human character, and (6) that in order to test the
reliability of a dying declaration, the Court has to keep in view the. circumstances like the
opportunity of the dying man for observation, for example, whether there was sufficient light if the
crime was committed at night; whether the capacity of the man to remember the facts stated had
not been impaired at the time he was making the statement, by circumstances beyond his control;
that the statement has been consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it; and that the statement had been made at the earliest
opportunity and was not the result of tutoring by interested parties."

34. Tested on anvil of the above mentioned law, the dying declaration being relied by the
prosecution does not pass the test and is not reliable. In addition to above, we also find substance in
the argument of learned counsel for the appellant, questioning the dying declaration. The following
circumstances in this regard are noticeable. The dying declaration taken on 27.06.2018 speaks
altogether differently from the prosecution story, by alleging that petrol was extracted from
motorcycle and poured upon the deceased and that the incident occurred in the morning between
7:00 to 8:00 A.M. The Investigating Officer has admitted during cross-examination that the
medical examination recorded kerosene smell while the dying declaration speaks of petrol. The
father of the deceased, namely, Raju, who is also the informant, in his testimony has categorically
stated that the incident occurred in the evening hours and the kerosene oil was used, which version
finds support from the contents of the FIR as well as contemporaneous medical examination
conducted by the doctor at District Hospital, Lakhimpur Kheri. Dr. Rajesh Kumar, P.W.12, who
medically examined the deceased at 10:10 P.M. on 16.06.2018 has specifically deposed that there
was a distinct smell of kerosene emanating from the clothes and body of the deceased. He has
further clarified in his cross-examination that petrol and kerosene have different odours and that
kerosene oil is ordinarily detectable. But the dying declaration speaks of petrol being taken from
the motorcycle and being used to set the victim on fire which is incongruous with the prosecution
case. No explanation whatsoever has been offered by the prosecution for this fundamental
discrepancy in the victim's narrative, either through the Investigating Officer or through medical
evidence.

35. Further the time of incident as mentioned in the FIR and statement of witnesses, is
different from that mentioned in dying declaration, about which there is no satisfactory explanation
by the prosecution thereby creating doubts about veracity and reliability of the dying declaration.

36. Before placing reliance upon the dying declaration, the Court is required to be fully
satisfied that since declaration inspires complete confidence and has been recorded strictly in
accordance with the principles consistently laid down by Hon'ble the Supreme Court.

37. It is also well settled that mere consciousness of the deceased is not sufficient; the court
must be satisfied that the deceased was in a fit state of mind to make the statement. The declaration
must be complete and made under circumstances that leave no doubt as to its voluntary and
truthful. Ordinarily, such satisfaction should be recorded by the medical expert and the certificate
of fitness must receive so as to affirm the dying declaration voluntarily. The recording authority
2 All. Sujeet Vs. State Of U.P.
1079
must ensure that dying declaration is complete and made voluntarily, i.e., it should not be the result
of tutoring, prompting, or imagination. The statement must reflect the deceased's mental alertness
and clarity.