# Veerpal & Anr v. State of U.P

- **Citation:** (2020) 8 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-05
- **Case number:** Criminal Appeal No. 4658 of 2015
- **Bench:** Naheed Ara Moonis, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/veerpal-anr-v-state-of-u-p-46065
- **Pages:** 19

## Headnote

Evidence Act-Indian Evidence Act, 1872-
Section 32- Two dying declarations
were
recorded.
The
first
dying
declaration
of
the
deceased
was
recorded on 20.12.2011 by PW-8 , the
first investigating officer of the case in
the form of statement under Section
161
Cr.P.C.
at
Lakshmi
Life
Line
Hospital, Vrindavan, district Mathura
and the second dying declaration of the
deceased was recorded by PW-4 , the
then Additional City Magistrate at 4.20
PM on 22.12.2011 at Ishwar Devi
Nurshing Home, Rajpur Chungi, Agra,
i.e. two days after the recording of first
dying declaration. In the first dying
declaration the deceased stated that out
of the fear of her father-in-law, she
committed suicide and the role assigned
to the appellant No. 1 in her dying
declaration was only of chasing her for
beating and not for burning.When the
second
dying
declaration
of
the
deceased was recorded by PW-4, she
has taken a complete somersault and
has assigned general role to father-inlaw, mother-in-law and Devar to have
8 All. Veerpal & Anr. Vs. State of U.P.
595
burnt her after pouring kerosene over
her.The deceased was fully conscious at the
time
of
recording
of
her
both
the
statements.
Even
the
second
dying
declaration suffers from infirmity as it was
not mentioned therein as to who was the
accused caught hold of her, who poured
kerosene and who set her on fire. It would
not be safe to rely upon the multiple dying
declarations of the deceased in the absence
of
any
corroborative
evidence.
The
statement of the deceased was recorded by
the Sub-Divisional Magistrate while she was
admitted in Lakshmi Life Line Hospital,
Vrindavan, but due to the lapse and
negligence of PW-8, the first investigating
officer, the same could not be made part of
case diary. Since, the deceased was also
mentally weak, the possibility of her
tutoring by the witnesses cannot be ruled
out.

Multiple Dying Declarations - Contradictions
in dying declarations- Deceased mentally
weak- Possibility of tutoring - Third dying
declaration concealed by the prosecution-
Where there are two or multiple dying
declarations and the same are contradictory
and the evidence shows that the deceased
was mentally weak, then the possibility of the
deceased being tutored cannot be ruled out..

Evidence Act-Indian Evidence Act, 1872-
Section
32-Dying
Declarations-
Witnesses of facts namely PW-1, the
first
informant
and
father
of
the
deceased, PW-2, the cousin of the
deceased, PW-5 and PW-7, brothers of
the deceased, have not supported the
prosecution
case
exonerating
the
appellants- The learned trial court has
erred in law in convicting the appellants
solely on the basis of dying declaration
of the deceased without there being any
corroborative evidence on record.

Multiple
Dying
Declarations-
Contradictions-
Witnesses
of
fact
hostile- Where the dying declarations are
contradictory and there is no corroboration
from the ocular and other evidence, then the
accused cannot be convicted solely on the
basis of the dying declarations.
Criminal Appeal allowed. ( Para 49, 51,
52, 53, 54, 62, 64, 70, 73, 74) ( E-3)

Case Law relied upon/ Discussed:-

## Text

_Characters 0–39,976 of 61,642. This is a partial read: ask again with offset=39976 for what follows._

594 INDIAN LAW REPORTS ALLAHABAD SERIES
going through the entire merits of the
case. This Court by order dated 14.9.2016
took cognizance of the relevant facts and
noting that more than a dozen gun shot
entry wounds were found on the body of
the deceased in indiscriminate firing in
which incident the applicant was armed
with fire arm and there was a background
of enmity and there were attempts to
commit murder in question made earlier.
Considering the motive, occular version
and the ante mortem injuries received by
the deceased, the applicant was refused
bail.

9. The applicant's short term bail
application was also rejected by order
dated 5.3.2019, observing that whatever
ailment with which the appellant was
suffering was already being taken care of
medically and the fact that the applicant
was being treated at different hospitals as
per the need was not disputed.

10. We do not find any material
change in the fact situation in this second
bail application. The ground taken is
already covered by order dated 5.3.2019.
The only thing is that the future physical
condition of the applicant w.e.f. 15.7.2019
has further been mentioned, but without
disputing that the jail authorities are taking
due care medically and are providing
treatment in different hospitals.

11. We are further of the view that
considering over all facts of the case, the
age of the applicant is no ground to
release him on bail.

12. Thus considered we are not
inclined to grant bail to the applicant.
The second bail application of the
applicant Mahaveer is hereby rejected.
----------
(2020)08ILR A594
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2020

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 4658 of 2015

Veerpal & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Umesh Chandra Yadav, Sri Awadh
Sharma, Sri Rajesh Pathik, Sri Rohan
Gupta, Sri Shree Prakash Giri

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

Evidence Act-Indian Evidence Act, 1872-
Section 32- Two dying declarations
were
recorded.
The
first
dying
declaration
of
the
deceased
was
recorded on 20.12.2011 by PW-8 , the
first investigating officer of the case in
the form of statement under Section
161
Cr.P.C.
at
Lakshmi
Life
Line
Hospital, Vrindavan, district Mathura
and the second dying declaration of the
deceased was recorded by PW-4 , the
then Additional City Magistrate at 4.20
PM on 22.12.2011 at Ishwar Devi
Nurshing Home, Rajpur Chungi, Agra,
i.e. two days after the recording of first
dying declaration. In the first dying
declaration the deceased stated that out
of the fear of her father-in-law, she
committed suicide and the role assigned
to the appellant No. 1 in her dying
declaration was only of chasing her for
beating and not for burning.When the
second
dying
declaration
of
the
deceased was recorded by PW-4, she
has taken a complete somersault and
has assigned general role to father-inlaw, mother-in-law and Devar to have
8 All. Veerpal & Anr. Vs. State of U.P.
595
burnt her after pouring kerosene over
her.The deceased was fully conscious at the
time
of
recording
of
her
both
the
statements.
Even
the
second
dying
declaration suffers from infirmity as it was
not mentioned therein as to who was the
accused caught hold of her, who poured
kerosene and who set her on fire. It would
not be safe to rely upon the multiple dying
declarations of the deceased in the absence
of
any
corroborative
evidence.
The
statement of the deceased was recorded by
the Sub-Divisional Magistrate while she was
admitted in Lakshmi Life Line Hospital,
Vrindavan, but due to the lapse and
negligence of PW-8, the first investigating
officer, the same could not be made part of
case diary. Since, the deceased was also
mentally weak, the possibility of her
tutoring by the witnesses cannot be ruled
out.

Multiple Dying Declarations - Contradictions
in dying declarations- Deceased mentally
weak- Possibility of tutoring - Third dying
declaration concealed by the prosecution-
Where there are two or multiple dying
declarations and the same are contradictory
and the evidence shows that the deceased
was mentally weak, then the possibility of the
deceased being tutored cannot be ruled out..

Evidence Act-Indian Evidence Act, 1872-
Section
32-Dying
Declarations-
Witnesses of facts namely PW-1, the
first
informant
and
father
of
the
deceased, PW-2, the cousin of the
deceased, PW-5 and PW-7, brothers of
the deceased, have not supported the
prosecution
case
exonerating
the
appellants- The learned trial court has
erred in law in convicting the appellants
solely on the basis of dying declaration
of the deceased without there being any
corroborative evidence on record.

Multiple
Dying
Declarations-
Contradictions-
Witnesses
of
fact
hostile- Where the dying declarations are
contradictory and there is no corroboration
from the ocular and other evidence, then the
accused cannot be convicted solely on the
basis of the dying declarations.
Criminal Appeal allowed. ( Para 49, 51,
52, 53, 54, 62, 64, 70, 73, 74) ( E-3)

Case Law relied upon/ Discussed:-

1. Laxman Vs St. of Maha., (2002) 6 SCC 710

2. Paparambaka Rosamma & ors. Vs St. of
A.P, (1999) 7 SCC 695

3. Koli Chunilal Savji & anr. Vs St. of Guj.,
1999(9) SCC 562

4. Harjeet Kaur Vs St. of Punj. 1999(6) SCC 545

5. Rasheed Beg Vs St. of M.P., (1974) 4 SCC 264

6. Ram Manorath Vs St. of U.P., (1981)2 SCC
654

7. Amol Singh Vs St. of M.P., (2008) 5 SCC 468

8. Heera Lal Vs St. of M.P., (2009) 12 SCC
671

9. St. of A.P Vs P. Khaja Hussain (2009) 15
SCC 120

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

11. Bawa Ram & anr. Vs U.T, Chandigarh
(2009) 13 SCC 270

(Delivered by Hon'ble Naheed Ara Moonis, J.)

1. This Criminal appeal has been
filed against the judgement and order
dated 08.9.2015 passed by the learned
Additional Sessions Judge, Mathura in
Sessions Trial No. 294 of 2013, arising
out of case crime No. 1144 of 2011 under
Sections 302 read with Section 34 IPC,
police
station
Vrindavan,
district
Mathura whereby the learned Judge has
convicted and sentenced the appellants to
life imprisonment under Section 302/34
IPC and a fine of Rs. 10,000/- each and
in case of default in payment thereof, the
appellants were further directed to
596 INDIAN LAW REPORTS ALLAHABAD SERIES
undergo
six
months'
additional
imprisonment.

2. The facts as unfolded by the
prosecution in short compass are that a
written report was handed over by the
first informant Bangali Babu, son of Shri
Murli Singh, resident of village Jhorian
Ka Pura, police station Pinahat, district
Agra on 20.12.2011 at the police station
Kotwali Vrindavan, district Mathura that
on 20.12.2011 (today) at about 2.30 PM
he received an information from his
grand-daughter (Natni) Radha that her
mother has been burnt. At that time, he
was in the school and after arranging
vehicle, he came to Vrindavan and talked
to her daughter in the hospital. At that
time S.D.M. was recording her statement.
The report further indicates that when he
requested the SDM to provide him a
copy of the statement, he directed him to
obtain the same from the Court of Chief
Judicial Magistrate, Mathura. The SDM
has also directed him to go to the police
station Kotwali and lodge the report. His
daughter has told him that "her father-inlaw Veerpal, son of Babu Ram and
mother-in-law
Smt
Maya,
wife
of
Veerpal have demanded money from her
by saying that your father had given
money to you. On her refusal to give
money, they indulged in Marpeet with
her and by sprinkling kerosene over her,
threw a burning matchstick and burnt
her. Mahesh, son of Veerpal is also
involved in this conspiracy." The report
also indicates that Smt. Mithlesh is badly
burnt and is admitted in Lakshmi Life
Line Hospital, Vrindavan.

3. On the basis of the aforesaid
report, which was scribed by Udai Bhan
Singh, son of Layak Singh, village Pura
Jhorian, police station Pinahat, district
Agra (Ext. Ka-1), a case was registered
against Veer Pal, Smt. Maya, wife of
Veer Pal and Mahesh on 20.12.2011 at
11.30 PM as Case Crime No. 1144 of
2011, under Section 326 IPC, police
station Vrindavan, district Mathura (Ext.
Ka-4).

4. After the registration of the FIR,
the criminal law was set in motion and
the investigation of the case was
entrusted to PW-8, SI Shambhu Nath
Singh, who has divulged that on
20.12.2011 he was posted at police out
post Bihari Ji Mandir, police station
Vrindavan. On that date on the basis of
the report of the first informant, he has
lodged the case as case crime No. 1144
of 2011, under Section 326 IPC, the
investigation whereof was entrusted to
him. First of all, he copied the contents of
the Chik FIR in the case diary and
recorded the statement of the scribe of
the FIR and also of the first informant.
Thereafter, he recorded the statement of
the victim, Smt. Mithlesh. On account of
the transfer of PW-8, the Thereafter,
investigation of the case was transferred
to SI Ved Singh, who has not been
examined in this case.

5. After the death of the victimSmt. Mithlesh on 09.1.2012, (hereinafter
referred to as the deceased), the case was
converted to under Section 302 IPC.
After the case was converted to under
Section 302 IPC, the investigation of the
case was taken up by PW-9, Inspector
Arvind Pratap Singh. On 07.11.2012, he
perused the case diary prepared by the
earlier investigating officers SI Shambhu
Nath Singh and SI Shri Ved Singh and
visited the place of occurrence along with
SI Ved Singh and inspected the spot,
which was in accordance with the site
8 All. Veerpal & Anr. Vs. State of U.P.
597
plan prepared by SI Ved Singh, which he
proved as paper No. 4-A/16 as he was
acquainted with the writing of SI Ved
Singh. On 07.11.2012 he arrested the named
accused persons namely Veerpal Singh and
Mahesh and after recording their statements,
they have been sent to jail. He also stated
that on 12.11.2012, he again recorded the
statement of the first informant Bangali
Babu, who reiterated his statement given to
the earlier investigating officer SI Ved
Singh. Thereafter, he recorded the statement
of PW-5, Rajpath Singh, brother of the
deceased, who has stated that he was present
at the time of recording of statement of the
first informant Bangali Babu and also in the
inquest proceeding. Thereafter, he recorded
the statement of brothers of the deceased
PW-6, Shri Shanker Dayal, PW-7, Satya
Prakash and witness PW-2, Hotam Singh ,
scribe of the FIR and witness of inquest
proceeding Shri Udai Bhan Singh and other
witnesses of inquest namely Pratap Singh,
Munendra Lal and Ashok. He also perused
the statement given by the deceased to SI
Ved Singh on 06.11.2012, which is a part of
case diary. On 29.11.2012, 08.12.2012 and
11.12.2012, he raided the hideouts of the
accused-Maya, but she could not be traced
out. On 13.12.2012, he recorded the
statement of PW-3, Dr. Sanjay Kasi, who
was posted at District Women Hospital,
Agra and conducted the post-mortem
examination on the cadaver. On 14.12.2012,
he recorded the statement of earlier
investigating officer PW-8, Shambhu Nath
Singh and SI Ved Singh. After collecting
credible evidence and completing the
investigation, he submitted the charge sheet
against the accused-appellants Veer Pal
Singh and Mahesh, which he proved as Ext.
Ka-7.

6. However, the investigation
against accused-Maya was pending.

7. As the case was exclusively
triable by the Court of Sessions, the
learned Magistrate committed the case to
the Court of Sessions and the learned
Additional Sessions Judge, Court No. 6,
Mathura vide order dated 16.8.2013
framed the charges against the accusedappellants Veer Pal and Mahesh under
Section 302 read with Section 34 IPC to
which accused-appellants pleaded not
guilty and claimed to be tried.

8. To bring home guilt of the
appellants
beyond
the
hilt,
the
prosecution has examined as many as ten
witnesses. Out of whom PW-1, Bangali
Babu, PW-2, Hotam Singh, PW-5,
Rajpath, PW-6, Shanker Dayal and PW-7
Satya Prakash were the witnesses of facts
and remaining witnesses were formal
one.

9. PW-1, Bangali Babu is the first
informant of the case and father of the
deceased. His statement was recorded on
04.4.1014. In his examination-in-chief,
he deposed that his daughter was married
to Dilip Kumar. He knows Udai Bhan,
son of Layak Singh. He is his nephew
(Bhatija). He has mentioned his own
mobile number as 8449962362, which is
correct, which belongs to his children.
On 20.12.2011 at 2.30 PM, he received a
telephone call from his grand-daughter
(Natni) Radha, informing him that her
mother has burnt. At the request of his
counsel
statement
was
deferred.
Thereafter
he
was
examined
on
15.7.2014. PW-1 deposed on oath that
when he received telephone call of Radha
he was in the school. Radha was also in
her school. She received information on
phone that her mother has burnt. Radha
informed him and thereafter he informed
the other family members. They came to
598 INDIAN LAW REPORTS ALLAHABAD SERIES
Vrindavan and spoken to his granddaughter Radha. The deceased-Mithlesh
was not unable to speak. He was not
allowed to meet her. He (PW-1) further
deposed that when he requested the SDM
for copy of the statement of the deceased,
he asked him to obtain the same from the
Court of Chief Judicial Magistrate. He
did not speak to the deceased as she was
badly burnt and was in unconscious state
and was not in a position to speak. The
deceased did not tell him that her fatherin-law Veer Pal and mother-in-law Maya
demanded money and on refusal thereof,
they have burnt her. She also did not tell
him that in this conspiracy appellantMahesh is also involved.

10. At this stage, PW-1, Bangali
Babu was declared hostile and the
prosecution was permitted to crossexamine him.

11. In his cross-examination, he has
admitted that he put his signature on the
FIR and marked as Ext. Ka-1. He
deposed that it was scribed by Uday
Singh as at that time his mental condition
was not good. When he was shown the
contents of the FIR, he stated that Uday
Bhan Singh has mentioned the same on
the advise of other and that he did not
mention the same in the FIR. He denied
that his statement was ever recorded by
police. He also denied that he is not
deposing
correctly
as
he
has
compromised with the accused person.

12. PW-2, Hotam Singh, in his
examination-in-chief deposed that the
informant of this case Bangali Babu is his
Tau (father's elder brother). His daughter
Mithlesh alias Meena, the deceased was
married to Dilip, son of Veer Pal about 16
years prior to her death. On 20.12.2011,
they have got an information that Mithleshdeceased has burnt as her clothes caught
fire and is hospitalized. He came to
Vrindavan along with the first informant
Bangali Babu. Mithlesh-deceased was
admitted in Lakshmi Life Line Hospital.
He tried to speak to her, but she was not in
a position to speak. She did not tell
anything to him. Thereafter, she was
admitted in Shaheed Nagar Ishwari Devi
Hospital in Agra by her father-in-law,
accused-Veer Pal on 21.12.2011. On
22.12.2011, she was shifted to Fatehabad
branch of the hospital, where she breathed
her last on 09.1.2012. Deceased-Mithlesh
has not been burnt by accused-Veer Pal,
Smt. Maya and Mahesh.

13. At this stage, PW-2, Hotam Singh
was declared hostile and the prosecution
was permitted to cross-examine him.

14. In his cross-examination, he
stated that deceased was mentally weak,
due to that reason, she was married to
Dilip, who was mentally retarded. He
further stated in his cross-examination
that after the incident, when he came to
Ratan Chhatri (village of the deceased),
he was told by the villagers that deceased
was not got burnt by her father-in-law
Veerpal, mother-in-law Maya Devi and
Devar Mahesh, but she burnt while
cooking food. She was admitted in the
hospital by her in-laws.

15. PW-3. Dr. Sanjay Kasi has
conducted post-mortem examination on
the cadaver of Mithlesh on 09.1.2012. He
found the following ante-mortem injuries
on the person of the deceased:

1. Surgical dressing present all
over body. Intra cash present on left
ankle and left wrist.
8 All. Veerpal & Anr. Vs. State of U.P.
599

2. Superficial to deep burn all
over body except front of chest, sides of
lower abdomen and back.

3. Redness present.

16. In the opinion of the doctor, the
cause of death of the deceased was
septicaemic shock as a result of burn
injuries, which was caused at about 2.30
PM on 20.12.2011.The post-mortem
report proved by PW-3 Sanjay Kasi
exhibited as Ext. Ka-2.

17. PW-4, Shri Bal Kishan Agrawal
deposed that on 22.12.2011, he was
posted as Additional City Magistrate-I,
Agra. On the basis of request of Station
Officer, police station Sadar, district
Agra dated 22.12.2011, for recording the
dying declaration of deceased-Mithlesh,
wife of Dilip Kumar, aged 36 years, he
reached at Ishwar Devi Nursing Home,
Rajpur Chungi, Agra at 4.20 PM. The
doctor posted at the nursing home took
him to the ward where the treatment of
injured-Mithlesh was going on. Before
recording the statement, doctor has told
him and also recorded in writing that she
is fit to give her statement and also
conscious. Thereafter, he was also
satisfied that deceased-Mithlesh was
fully conscious to give her statement and
was understanding the question. In her
statement she deposed that on 20.12.2011
at 11.00 AM due to the feud over
demanding money, his Dever, Mahesh,
son of Veerpal, father-in-law Veer Pal,
son of Babu Lal and mother-in-law Smt.
Maya, wife of Veer Pal, resident of Ratan
Chhatri, Purani Kali Dah, police station
Vrindavan, district Mathura have burnt
her after pouring kerosene over her. She
further stated that her condition is
critical.

18. He (PW-4) further deposed that
after recording the statement, he has read
over the contents of the statement to the
deceased-Mithlesh, who has put her left
hand thumb impression over it, which he
proved as Ext. Ka-3. After recording the
statement, the doctor has recorded in
writing that injured-Mithlesh was fully
conscious during and after giving her
statement. He also deposed that after
recording the statement, in the hospital
itself, he sealed the same and after
coming to his office, he sent the sealed
envelop by post to the Chief Judicial
Magistrate, Mathura. He further deposed
that along with the dying declaration of
the deceased-Mithlesh, he also sent the
copy of the police information and
carbon copy of GD to the Chief Judicial
Magistrate,
Mathura,
which
have
annexed at the time of recording of his
statement in Court.

19.

PW-5,
Rajpath
in
his
examination-in-chief
deposed
that
deceased-Mithlesh was his real younger
sister. She was married to Dilip, son of
Veer Pal, about 12-13 years ago. She had
four children, three daughters and one
son. As the mental condition of his
brother-in-law
was
not
good,
the
responsibility of running the house was
of his sister. He received a call from her
niece stating that her mother has been
burnt. She did not tell him as to who has
burnt her. On information, he along with
10-11 persons including my father rushed
to Vrindavan. By that time her sister was
admitted in the hospital by her in-laws in
Lakshmi Life Line Hospital, Mathura. He
did not speak to her sister in the hospital.
His father has spoken to her. He (PW-5)
further deposed that his sister did not tell
him that on 20.12.2011 at about 11 AM,
her father-in-law Veer Pal, mother-in-law
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Maya have demanded any money from
her by saying that your father has given
money to you.

20. At this stage, this witness has
been declared hostile and the prosecution
was permitted to cross-examine him.

21. In his cross-examination, PW-5,
Rajpath deposed that he has not given
any statement under Section 161 Cr.P.C.
He further deposed that he visited several
times to the matrimonial house of the
deceased. She never made any complaint
about her in-law. Mithlesh-deceased was
mentally weak and due to this reason, she
was married to Dilip, who was also
mentally weak. He came to know that
deceased was not burnt by her in-laws,
who
received
burn
injuries
while
cooking. Her in-laws admitted her in the
hospital and had bear the expenses.

22. PW-6, Shanker Dayal in his
examination-in-chief has deposed that
deceased-Mithlesh was his sister, who
was married to Dilip, son of Veer Pal
about 15 years ago. His brother-in-law
was doing agricultural work and was
mentally retarded. Her sister had four
children, one son and three daughters,
son was youngest one. They were looked
after by the deceased-Mithlesh. She
resided separately from her in-laws. Her
mother-in-law Smt. Maya, father-in-law
Veer Pal and Devar Mahesh Chandra
demanded money from her sister, but she
did not give money to them. He further
deposed that Smt. Mithlesh poured
kerosene over her sister, while Veer Pal
caught hold of her and Mahesh burnt her
by igniting matchstick. There was dispute
between the deceased and her in-law over
partition of agricultural land. Deceased's
in-laws have not given her share of land
due to which they (her parents)used to help
the deceased financially. His niece has
informed his younger brother that Mithlesh
has burnt. Thereafter, he stated that
Mithlesh
has
been
burnt.
On
this
information, he along with his father
Bangali Babu, brother Rajpath Singh and
Satya Prakash and Sudhir came to
Vrindavan. By that time father-in-law and
Devar of Mithlesh have admitted her in the
hospital. Mithlesh has told him about the
incident. Thereafter, he got the Mithlesh
admitted in Mohaniya hospital, Agra and
thereafter she was shifted to Ishwari Devi
Nursing Home, Fatehabad. He further
deposed that her sister was alive for about
20-22 days and thereafter, she breathed her
last in the hospital. Inquest and postmortem on the cadaver was conducted at
Agra. In his cross-examination, he deposed
that his father Bangali Babu, brother Raj
Path Singh and his uncle's cons Hotam
Singh have not supported the prosecution
case. He further denied that he is deposing
against the accused persons to blackmail
them to extort money.

23. PW-7, Satya Prakash in his
examination-in-chief
deposed
that
deceased-Mithlesh
was
his
younger
sister, who was married to Dilip, son of
accused-Veer Pal about 12 years ago.
She had four children. She was living in
her in-laws house. She had no dispute
with her in-laws. About three years ago
on the date of occurrence, while she was
preparing food, her cloth caught fire and
was severally burnt. Her mother-in-law
Smt. Maya Devi, father-in-law Veer Pal
and Devar Mahesh had not burnt her. On
20.12.2011
his
niece,
Radha
had
telephoned that her mother has burnt as
her clothes caught fire while she was
preparing food and she was admitted in
hospital for treatment.
8 All. Veerpal & Anr. Vs. State of U.P.
601

24. At this stage, this witness has
been declared hostile and the prosecution
was permitted to cross-examine him.

25. In his cross-examination, he
deposed that that his statement under
Section 161 Cr.P.C. was not recorded by
the
investigating
officer.
DeceasedMithlesh was his real sister. She never
made complaint of her in-laws. She told
that her father-in-law Veer Pal, motherin-law Maya and Devar Mahesh used to
keep her very well and they never
quarrelled with her. Deceased-Mithlesh
was mentally weak and that is why she
was married to Dilip, who was also
mentally weak. He also deposed that his
niece Radha has telephonically informed
him that her mother (deceased) has burnt
while cooking. She was never in a fit
condition to speak till her death.

26. PW-8, SI Shambhu Nath Singh
was the first investigating officer of the
case, who had recorded the statement of
the complainant, scribe of FIR and
injured-Mithlesh and PW-9, Inspector
Arvind Pratap Singh was the third
investigating officer of the case, who on
completion
of
the
investigation,
submitted charge sheet. Their evidence in
detail has already been discussed above.

27. PW-10, SI Kamal Singh, who
was posted as HCP at Police Station
Fatehabad, has got the inquest on the
cadaver of deceased-Mithlesh done on
09.1.2012
at
8.55
AM.
In
his
examination-in-chief, he deposed that on
09.01.2012 he was posted has HCP at
police station Fatehabad, district Agra.
On that day on the basis of information
of family members of the deceasedMithlesh, he reached at Ishwari Devi
Nursing Home, Fatehabad, Agra along
with Constables Daya Ram and Radhey
Shyam where cadaver of deceasedMithlesh was lying on the bed of
mortuary and her family members were
sitting besides her. There were sign of
burning all over her body and there were
bandage on several places. He appointed
Panch and conducted the inquest. In the
opinion of Panch, she died during
treatment due to burn. Inquest proceeding
was completed at 11.00 AM, which he
proved as Ext. Ka-8. He (PW-10) also
prepared documents relating inquest
proceeding, which he proved and marked
as Exts. Ka-9-12.

28. After the closure of prosecution
evidence, the statements of the accusedappellants were recorded under Section
313 Cr.P.C, who denied the charges. They
further stated that deceased was not in a
position to speak and that in collusion with
the family members of the deceased, false
and fabricated statements have been
recorded to extract money from them. They
pleaded their innocence.

29. Learned Additional Sessions
Judge, Mathura after hearing the learned
counsel for the parties, evaluating and
assessing
the
evidence
on
record,
convicted and sentenced the appellants as
indicated herein above in the opening
paragraph of the judgement.

30. Hence, this appeal.

31. Heard Mr. Shree Prakash Giri,
learned counsel for the appellants and
Shri Ashwani Prakash Tripathi, Learned
Additional
Government
Advocate
representing the State.

32. Learned counsel for the
appellants has hammered the impugned
602 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement of conviction and order of
sentence on the ground that there are
serious contradiction in both the dying
declaration of the deceased, which negate
the prosecution story. Learned counsel
for the appellants states that in the first
dying declaration the deceased has stated
that in order to commit suicide, she
herself poured kerosene over herself and
set ablaze, whereas in other dying
declaration she has stated that her Devar
Mahesh, father-in-law Veer Pal (the
present appellants) and her mother-in-law
Maya Devi set her ablaze after pouring
kerosene over her.

33. Learned counsel for the
appellants has further argued that in fact,
in addition to the aforesaid two dying
declarations, one more dying declaration
of the deceased was recorded by the SubDivisional Magistrate, but as the same
was not favourable to the prosecution, it
was not made part of the case diary.

34. Placing reliance upon the
decision of Hon'ble Supreme Court in
Bawa Ram and another Vs. Union
Territory, Chandigarh (2009) 13 SCC
270, it is argued by the learned counsel
for the appellants that since all the
prosecution witnesses, who are father and
brothers of the deceased, have not
supported the prosecution case, hence the
prosecution of the appellants cannot be
sustained and the learned trial court on
misappreciation of evidence brought on
record, convicted and sentenced the
appellants and as such the impugned
judgement and order are liable to be
quashed.

35. On the other hand Shri Ashwani
Prakash Tripathi, learned Additional
Government Advocate has vehemently
opposed the submissions made by the
learned counsel for the appellants by
contending that all the appellants with
common intention to kill, had poured
kerosene over the deceased and burnt
her. He further submits that as the
prosecution was successful in bring home
the guilt of the appellants, the impugned
judgement and order do not call for any
interference by this Court.

36. Before adverting to the
arguments advanced by the learned
counsel for the parties, it would be useful
to quote the both the dying declarations
of the deceased:

37. The first dying declaration of
the deceased-Smt Mithlesh, which was
recorded by PW-8, SI Shambhu Nath
Singh in the form of statement under
Section 161 Cr.P.C. on 20.12.2011, reads
as under:

"esjs llqj ohjiky flag iq= ckcw
jke eq>ls jkstkuk iSls ekaxrk gS vkSj dgrk gS
eq> ij nqljksa dk dtZ gS mls pqdkuk gSA eSaus
mlls dgk fd esjs ikl rhu yM+dh o ,d
yM+dk gS] eSa mudk ikyu iks"k.k dSls d#wWaxh]
esjk ifr rks ekufld #i ls ikxy gSA fnukad
20-12-2011 dks esjs llqj us eq>ls fQj iSls
ekaxs eSaus euk dj fn;k rks esjk llqj MaMk
ysdj esjs ihNs ekjus ds fy, HkkxsA eSaus dejs esa
?kqldj fdokM can dj fy,] ;g lkspdj fd
esjs llqj eq>s ekjsaxs vkSj eSau xqLls esa vkdj
dejs esa j[kh feVVh ds rsy dh cksry vius
Åij Mkydj ekfpl ls vkx yxk yhA esjh
lkl ek;k nsoh Hkh eq>ls >xM+rh jgrh gSA eq>s
vius ifr ls dksbZ f'kdk;r ugha gSA"

38. The second dying declaration of
the deceased, which was recorded by
PW-4,
Bal
Kishan
Agarwal
on
22.12.2011 at 4.20 PM at Ishwari Devi
Nursing Home, Agra, reads as under:
8 All. Veerpal & Anr. Vs. State of U.P.
603

"mls fnukad 20-12-2011 dks nksigj
11-00 cts iSls ekaxus ds fookn ij mlds nsoj
egs'k iq= ohjiky] llqj ohjiky iq= ckcqyky
rFkk lkl ek;k iRuh ohjiky fuoklh mijksDr
us feVVh dk rsy Mkydj tyk fn;k gSaA esjh
gkyr cgqr [kjkc gSA"

39. The maxim "Nemo moriturus
praesumitur mentire" is the basis for
"dying declaration", which means, " a
man will not meet his maker with a lie in
his mouth". A dying declaration is called
as "Laterm Mortem" which means "word
said before death.

40. Recording of dying declaration
is very important task and utmost care is
to be taken while recording a dying
declaration. If a dying declaration is
recorded carefully by a proper person,
keeping in mind the essential ingredients
of the dying declaration, such declaration
retains it full value.

41. Law on the subject is very clear
after the decision of five Judges Bench of
the Supreme Court in Laxman Vs. State
of Maharashtra, (2002) 6 SCC 710.
Prior to this judgement, there were
conflicting decisions of three Judges
Benches of Hon'ble Supreme Court, i.e.
Poparambaka Rosamma and others
Vs. State of Andhra Pradesh, 1999 (7)
SCC 695 and Koli Chunilal Savji and
another Vs. State of Gujarat, 1999 (9)
SCC 562.

42. In Paparambaka Rosamma
and others Vs. State of Andhra
Pradesh, 1999 (7) SCC 695 the dying
declaration in question had been recorded
by
a
Judicial
Magistrate
and
the
Magistrate had made a note that on the
basis of answers elicited from the
declarant to the questions put, he was
satisfied that the deceased is in a fit
disposing state of mind to make a
declaration. Doctor had appended a
certificate to the effect that the patient
was conscious while recording the
statement, yet the court came to the
conclusion that it would not be safe to
accept the dying declaration as true and
genuine and was made when the injured
was in a fit state of mind since the
certificate of the doctor was only to the
effect that the patient is conscious while
recording the statement. Apart from the
aforesaid conclusion in law the court also
had found serious lacunae and ultimately
did not accept the dying declaration
recorded by the magistrate.

43. In Koli Chunilal Savji and
another Vs. State of Gujarat, 1999(9) SCC
562 it was held that the ultimate test is
whether the dying declaration can be held to
be a truthful one and voluntarily given. It was
further held that before recording the
declaration the officer concerned must find
that the declarant was in a fit condition to
make the statement in question. The court
relied upon the earlier decision in Ravi
Chander Vs. State of Punjab, 1998 (9) SCC
303 wherein it had been observed that for not
examining
by
the doctor
the
dying
declaration recorded by the executive
magistrate and the dying declaration orally
made need not be doubted. The Magistrate
being a disinterested witness and is a
responsible officer and there being no
circumstances or material to suspect that the
magistrate had any animus against the
accused or was in any way interested for
fabricating a dying declaration, question of
doubt on the declaration, recorded by the
magistrate does not arise.

44. The court also in the aforesaid
case relied upon the decision of this court
in Harjeet Kaur VS. State of Punjab
604 INDIAN LAW REPORTS ALLAHABAD SERIES
1999(6) SCC 545 case wherein the
Magistrate in his evidence had stated that
he had ascertained from the doctor
whether she was in a fit condition to
make a statement and obtained an
endorsement to that effect and merely
because an endorsement was made not on
the declaration but on the application
would not render the dying declaration
suspicious in any manner.

45. The Supreme Court in Laxman
Vs. State of Maharashtra (Supra),
while affirming the law laid down in
Koli Chunilal Savji and another Vs.
State of Gujarat, 1999(9) SCC 562 has
laid down the principle to the following
effect:

"The juristic theory regarding
acceptability of a dying declaration is
that such declaration is made in
extremity, when the party is at the point
of death and when every hope of this
world is gone, when every motive to
falsehood is silenced, and the man is
induced
by
the
most
powerful
consideration to speak only the truth.
Notwithstanding the same, great caution
must be exercised in considering the
weight to be given to this species of
evidence on account of the existence of
many circumstances which may affect
their truth. The situation in which a man
is on death bed is so solemn and serene,
is the reason in law to accept the veracity
of his statement. It is for this reason the
requirements
of
oath
and
crossexamination are dispensed with. Since
the accused has no power of crossexamination, the court insist that the
dying declaration should be of such a
nature as to inspire full confidence of the
court in its truthfulness and correctness.
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 prompting 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 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 records a
8 All. Veerpal & Anr. Vs. State of U.P.
605
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."

(emphasis supplied)

46. It is no doubt true that
conviction of a person can be made
solely on the basis of dying declaration,
which inspires confidence and if there is
nothing suspicious about it.

47. Now, this Court will proceed to
scrutinize
as
to
whether,
the
statement/dying
declaration
of
the
deceased inspires confidence of the Court
or it was suspicious and the result of
either tutoring or prompting 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.

48. The dying declaration is
undoubtedly admissible under Section 32
of the Evidence Act and not being a
statement on oath so that its truth could
be tested by cross-examination, the
Courts have to apply the strictest scrutiny
and the closest circumspection to the
statement before acting upon it. While
great solemnity and sanctity is attached
to the words of a dying person because a
persons on the verge of death is not likely
to meet his maker with a lie in his mouth
by implicating innocent person yet the
Court has to be on guard against the
statement of the deceased being a result
of either tutoring.

49. Admittedly in this case, two
dying declarations were recorded. The
first dying declaration of the deceased
was recorded on 20.12.2011 by PW-8
Shambhu
Nath
Singh,
the
first
investigating officer of the case in the
form of statement under Section 161
Cr.P.C. at Lakshmi Life Line Hospital,
Vrindavan, district Mathura and the
second dying declaration of the deceased
was recorded by PW-4 Bal Kishan
Agrawal, the then Additional City
Magistrate at 4.20 PM on 22.12.2011 at
Ishwar Devi Nurshing Home, Rajpur
Chungi, Agra, i.e. two days after the
recording of first dying declaration.

50. Admittedly, the deceased was
admitted in the hospital by accusedappellant Veer Pal on 20.12.2011 in
Lakshmi Life Line Hospital, Vrindavan,
district Mathura, where her statement
was recorded by PW-8, SI Shambhu
Nath Singh, the first investigating officer
of the case. In her statement, the
deceased has stated that her father-in-law
used to demand money from her every
day by saying that he had to repay the
debt, which he had taken from others.
She refused to give money to him by
saying that she has three daughters and a
son and she has to foster them.
Moreover, her husband is mentally ill.
On the fateful day, i.e. 20.12.2011, her
father-in-law (Veer Pal, appellant No. 1)
has chased her for beating. However, she
managed to escape and bolted the door
from inside. By thinking that her fatherin-law will beat her, she poured kerosene
606 INDIAN LAW REPORTS ALLAHABAD SERIES
over herself and set her ablaze. She
further stated that her mother-in-law also
used to quarrel her. She does not have
any grievance with her husband.

51. Perusal of the aforesaid
statement of the victim goes to suggest
that out of the fear of her father-in-law,
she committed suicide and the role
assigned to Veer Pal (the appellant No. 1)
in her dying declaration was only of
chasing her for beating and not for
burning. The role of only quarrel has
been assigned to Maya Devi (nonappellant) against whom investigation
was pending, when the charge sheet in
the instant case was submitted, who later
on met her maker.