[Cites 19, Cited by 0]
Allahabad High Court
Bhanwarkali And Another vs State Of U.P. on 2 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgement Reserved on 26.02.2026
Judgement Delivered on 02.4.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2487 of 1985
Bhanwarkali and another
..Appellant(s)
Versus
State of U.P.
..Respondent(s)
Counsel for Appellant(s)
:
Amit Daga, R.N.sharma
Counsel for Respondent(s)
:
A.G.A.
Court No. - 45
HON'BLE CHANDRA DHARI SINGH, J.
HON'BLE DEVENDRA SINGH-I, J.
Per: Honble Chandra Dhari Singh, J
1. This Criminal Appeal has been filed against a judgement and order dated 12.09.1985 passed by the Fourth Additional Sessions Judge, Meerut in ST No. 319 of 1980 whereby the learned Judge convicted and sentenced the appellants Bhanwarkali and Shyam Kali to imprisonment for life and a fine of Rs. 2,000/- each under section 302/34 IPC and in case of default in payment of fine, they shall further undergo imprisonment for three months.
2. Pursuant to the order of this Court dated 02.02.2026, criminal appeal filed on behalf of the appellant Bhanwarkali has been disposed of as abated and now this Court is only concerned with the appeal of Shyam Kali.
Facts of the case
3. The facts that formed the bedrock of the present appeal are that a written report was given at police station Baghpat at 11:00 PM on 30.05.1979 by Tota Ram, son of Sher Singh, resident of Village Saroorpur Kalan (hereinafter referred to as the first informant) with the allegations inter alia that he got her daughter married to Shiv Kumar, son of Ziley Singh about five years back. There were certain differences, which were mutually resolved. On 29.05.1979, i.e. a day before the occurrence. The daughter of the first informant, Smt. Santosh went to her in-laws house with Ziley Singh and Sarpanch Kalu Ram. On 30.5.1979, a person from village Mawi Kalan informed him that his daughter has been burnt. On that information, the first informant reached the village Mawi Kalan where he came to know that Bhanwar Kali had sprinkled kerosene on the body of the Smt. Santosh and Shyam Kali had set her on fire with an intention to kill her, due to which she had badly injured. The first informant took his daughter to Delhi Hospital where after getting her admitted, went to the police station and lodged the report. The first information report further recounts that in the incident in question, Ziley Singh and his son have also hands because before before leaving the house, they had given certain instructions to the accused.
4. On the basis of the aforesaid information, a Chik report was prepared for the offence at 11:00 PM on 30.5.1979. On completion of investigation, the investigating officer submitted the charge sheet against the appellants.
5. Before the first information report could be lodged PW-6, ASI Ranbir Singh, who was posted as In-Charge, Out Post, on getting Medico Legal Sheet through Constable Ram Autar, in respect of Smt. Santosh, he rushed to the spot and recorded the dying declaration of Smt. Santosh (hereinafter referred to as the deceased), which ended at 06:15 PM on 30.5.1979. The deceased died in Delhi, but before her death, her dying declaration was recorded.
6. As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions, where case was registered as ST No. 319 of 1980 and the learned 7th Additional Sessions Judge, Meerut, vide order dated 28.10.1980 framed the charges against the accused-appellants under Section 302/34 IPC, which was read over and explained to the accused, who pleaded not guilty and claimed to be tried.
7. To bring home guilt of the appellants, the prosecution has examined as many as six witnesses. PW-1, Total Ram, is the first informant of the case, PW-2, Smt. Mahendri is the mother of the deceased, PW-3, Pran Sukh Sharma was the Chik writer of the FIR, PW-4, Dr. Vishnu Kumar, who inspected the body of the deceased after her death, PW-5, Dr. P.K. Govila, who proved the admission slip and endorsement of Dr. Ashok Gupta and PW-6, ASI Ranbir Singh, who recorded the dying declaration of the deceased.
8. PW-1, Tota Ram is the first informant of the case and father of the deceased. In his examination-in- chief, he has stated that his daughter was married to Shiv Kumar about five years prior to the alleged occurrence. The accused are the daughters of Ziley Singh with whose son, his daughter was married. After the marriage, his daughter went to her in-laws house where she was ill-treated. Since 1-1/2 year prior to the alleged occurrence, his daughter was living with him. His daughter had also sent a complaint on 27.2.1979 to the District Magistrate, Meerut. The police and certain persons of the village reconciled the matter and they also took the responsibility for any happening with his daughter. He further deposed that on 29.05.1979, Ziley Singh, the father-in-law of the deceased and Kalu Ram (Sarpanch of the village Mawi Kalan) came to his house. The deceased was sent with them and on the next day at about 07:00 AM, he received information about the burning of his daughter. On this information, he and his wife went to village Mawi Kalan where in the house of his Samdhi, he found that his daughter (deceased) was lying burnt on a cot in the courtyard. His daughter was alive at that time. On queries, her daughter told him that accused-Bhanwar Kali had sprinkled kerosene over her and accused-Shyam Kali had set her on fire with match. She also informed that when she raised noise, the two accused persons had beaten her and dragged her on the cot. He also deposed that he was informed by his daughter that at the time of occurrence, her father-in-law Ziley Singh had gone to village Katha for oil extraction and was not present at the residence, but before he left the house had had given some instructions to the accused-persons. Deceased had also informed the complainant that at the time of incident, her husband was in the field. This witness has further stated that he took the deceased on a truck to Irwin Hospital at Delhi, where she was admitted and then at about 11.00 in the night he went to the police station where he lodged the report, which he proved as Ext. Ka-1. After lodging the report at the police station, the witness has said that he went to his home at village Saroorpur Kalan. The next day, his daughter died in the hospital at Delhi. Neither his son-in-law Shiv Kumar nor any member of his family visited there. This witness has further explained that relations between his daughter and her in-laws were not good due to non-fulfillment of unreasonable demands of his son-in-law.
9. PW-2, Smt Mahendri is the wife of the first informant-Tota Ram and mother of the deceased. In her examination-in-chief, she deposed that deceased was married to Shiv Kumar of Mawi Kala, 5-6 years prior to the occurrence. After the marriage, there was differences between the deceased and her husband. Twice in the Panchayat matter was compromised, but there was no improvement in the behaviour of husband of the deceased. She sent her daughter to her in-laws house along with Ziley Singh (father-in-law of the deceased) and Sarpanch of the village on the assurance of the Sarpanch that they shall not ill-treat the deceased. On the next day of sending the deceased, she got the information about burning of the deceased. She got the information in the morning. She reached at the matrimonial house of the deceased at about 8-9 AM. The name of her daughter (deceased) was Santosh. She further deposed that when she reached the house of Santosh, she was lying burnt and told that she has been burnt by Bhanwar Kali and Shyam Kali. Bhanwarkali sprinkled kerosene over her and Shyam Kali set her ablaze. She further deposed that she took the deceased to the hospital at Delhi.
10. PW-3, Pran Sukh Sharma, in his examination-in-chief deposed that on 30.05.1979, he was posted as Sub-Inspector at police station Kanghla. He further deposed that the investigation of this case was handed over to him and on 01.6.1979, he recorded the statement of Tota Ram, the complainant and thereafter the investigation was handed over to another Sub-Inspector.
11. PW-4, Dr. Vishnu Kumar is the Professor and Head of Department of Forensic Medicines at Maulana Azad Medical College, Delhi. He had performed autopsy on the dead body of Smt. Santosh. There were burn injuries on almost all over the body and about 75% portion of the body was affected due to these burns. In the opinion of the doctor, the death was caused due to toxemia and shock which was due to the burn injuries. The doctor has proved the postmortem examination report, Ext. Ka-4). He further opined that burn injuries could be caused at about 06:15 AM on 30.5.1979.
12. PW-5, Dr. P.K. Govila was the A.C.H.O in the Casualty Ward of Irwin Hospital at Delhi on 30.5.1979. The name of the hospital is now changed to Jai Prakash Narayan Hospital, Delhi. He has stated that on 30.5.1979 at about 1:40 PM, Smt. Santosh was brought by Subedar Tota Ram. The lady had sustained burn wounds. She was admitted in the hospital and was referred to the Specialist. The doctor has proved the admission slip, Ext Ka-9, which was filled by him. The doctor has further proved the endorsement of Dr. Ashok Guupta, who made a note that the patient was fit for statement. This endorsement was made at 4:50 PM. After the death of the patient, the death summary was prepared by Dr. Ram Phal, which has been proved by Dr. P.K. Govila as Ext. Ka-10. This witness has also proved the endorsement of Dr. Ashok Gupta on the dying declaration itself. Dr. Ashok Gupta has certified that the statement has been recorded in his presence and approval of the patient was obtained.
13. PW-6, ASI Ranbir Singh, in his examination-in-chief has deposed that on 30.5.1979, he was posted as In-charge at the police outpost at Jain Prakash Narayan Hospital, New Delhi. He received a medico-legal sheet through Constable Ram Autar and on the basis thereof, he went to record the statement of Smt. Santosh. He further deposed that on his dictation, Constable Ram Kumar had recorded the statement. Whatever was told by Smt. Santosh was recorded. This witness has stated that Smt. Santosh had voluntarily given her statement. After her statement was recorded, her thumb impression was also obtained thereon. He stated that the entire statement was recorded in the presence of Dr. Ashok Gupta and this witness has put his signature after reading it, which he proved as Ext. Ka-11.
14. After the closure of prosecution evidence, the statement of the accused Shyam Kali recorded under Section 313 Cr.P.C. in which she denied the charges levelled against her. However, she further stated that deceased-Santosh had gone to her maternal home 2-3 months ago. Father of the deceased wanted to usurp the ornaments which was given to her in marriage and he wanted to get Smt. Santosh remarry. She further stated that when this fact came to the knowledge of his father-Ziley Singh, he went to the house of Tota Ram with Panchayat. On the persuasion of Panchayat, Tota Ram has sent Smt. Santosh (deceased) with her father Ziley Singh and on the next morning she set herself ablaze. She further stated that she had gone to field and was not present at the house.
15. One Shri Ram Kishan, son of Khajan Singh has been produced in defence as DW-1. He stated that he is the Villae Pradhan of Mawi Kalan. On the date of occurrence at about 6.00 AM, when he was on morning walk, on getting information that daughter-in-law of Ziley Singh has been burnt, he went to the house of Ziley Singh, where Smt. Santosh (deceased) was lying on the cot. She was alive. On his queries, she told him that she herself had set on fire. On asking the reason, she told that whatever was destined had happened. He then called Ziley Singh and his two daughters from the field and also sent information to the father of Smt. Santosh through Ram Singh who is the neighbour of Ziley Singh. This witness has also stated that he along with other villagers has also informed the police Inspector that Smt. Santosh was not burnt but she herself set her on fire.
16. Learned Fourth Additional Sessions Judge, Meerut after hearing the learned counsel for the parties and assessing, evaluating and scrutinizing the evidence on record, convicted and sentenced the accused-appellant as indicated herein above.
17. Hence, this appeal.
Submissions on behalf of the appellant
18. Learned counsel for the appellant submitted that since the deceased was having a burn of 75%, she must not have been in a position to give her statement. In support of this contention, learned counsel has placed reliance upon the judgement of Honble Supreme Court in Jayamma and another Vs. State of Karnataka (Criminal Appeal No. 758 of 2010 (Supreme Court).
19. Learned Senior Advocate further submits that there was no smell of kerosene in the body of the deceased when she was not brought to the hospital, which makes the prosecution story doubtful. In support of his case, learned counsel for the appellant has relied upon the judgement of Honble Supreme Court in the case of Suresh Vs. State (2025)4 SCC 794.
20. Learned counsel for the appellant further submits that dying declaration of the deceased was recorded by a Constable, which was only signed by the Sub-Inspector, the Constable who recorded the dying declaration of the deceased has not been examined. He further submits that dying declaration was not recorded by the Magistrate. In support of his contention, learned counsel for the appellant has placed reliance upon the judgement of Honble Supreme Court in Manjunath and others Vs. State of Karnataka, 2023 INSC 978.
21. Learned counsel also submitted that none of the witnesses from the neighbourhood have been examined and that no incriminating material appearing against her was put to the accused in her statement under Section 313 Cr.P.C. In support of the contention, learned counsel for the appellant has relied upon the decision of Honble Supreme Court as well as Allahabad High Court in Sampat Babso Kale and another Vs. State of Maharashtra (Criminal Appeal Nos. 694-695 of 2011) (Supreme Court) and Rameshwar Lal Chauhan Vs. State of U.P. (Criminal Appeal No. 6920 of 2017(Allahabad High Court).
22. Learned counsel for the appellant contended that the prosecution has failed to produce the doctor, who had issued fitness certificate of deceased, which creates grave doubt about the authenticity of the fitness certificate. For the said proposition, learned counsel for the appellant has relied upon the judgement of Honble Supreme Court in Tarun Sharma Vs. State of Haryana, (2026)(1)JIC 130 (SC).
23. Learned counsel for the appellant has lastly contended that the investigating officer has not been produced by the prosecution.
24. On the other hand, Shri Satyendra Tiwari, learned Additional Government Advocate submits that deceased was burn to death by the accused-appellants. The deceased has specifically named the accused in her dying declaration.
Submissions on behalf of the State
25. Shri Tiwari further submits that since the Sub-Inspector had injury on his thumb, he got the dying declaration recorded by the constable and put his signature, which is not fatal for the prosecution.
26. Learned Additional Government Advocate supported the findings of the learned trial court by stating that the learned trial court has correctly martialled the evidence and considered each and every aspect of the case while convicting the appellant.
27. Heard Shri Amit Daga, learned Senior Advocate assisted by Shri Bihaan Pandey, learned counsel for the appellant and Shri Satyendra Tiwari, learned Additional Government Advocate representing the State and have gone through the record of the case.
Analysis and conclusion
28. Before adverting to the arguments advanced on behalf of the learned counsel for the parties, it would be useful to quote the dying declaration of the deceased:
बयान- श्रीमती सन्तोश W/O श्री शिव कुमार R/O गाँव मवी कलॉ थाना बागपत जिला मेरठ (U.P.) व उम्र 20 साल व्यान किया कि मैं पता बाला पर अपने पती व सास ससुर के साथ रहती हूँ मेरी शादी को करीब 5 साल हो गये है, 5 साल के दौरान मेरे सास ससूर और मेरा पती व मेरी नन्द भंवर कली उम्र 20 साल जो शादी सूदा है व श्याम कली उम्र करीब 18 साल यह सभी लोग मुझे मारते पीटते थे और मैं इन लोगों से तंग आकर अपने पीहर मोजा सरूरपुर कला जिला मेरठ में चली जाती थी कई बार पहले भी पंचायत के फैसले पर मेरे माता पिता ने मेरी ससुराल वालों के साथ भेज दिया था फिर मुझे वह लोग तंग करते थे करीब 1-1/2 साल से मैं अपने पीहर अपने माता पिता के पास रह रही थी करीब 2 माह पहले मैने मेरठ कलेक्टर को अपनी ससुराल वालों के बारे में दरखास्त दी थी जो कलेक्टर साहब ने थाना बागपत पुलिस को लिखा जो पुलिस ने मेरे पीहर व ससुराल वालों को बुलाकर करीब 1-1/2 माह पहले फैसला करा दिया जो कल दिनाक 29.5.79 को मेरे ससुरजी जिले सिंह व वहाँ का र्सपंच श्री कालू राम मेरे पीहर से मुझे मेरी ससुराल ले गये जो शाम को व रात भर मुझे उन्होने तंग रखी गालिया वगैरा देते रहे और खाना भी नही दी आज सुबह करीब 6 बजे मेरा ससुर काठा गाँव मे तेल निकल वाने चला गया। और मेरा आदमी उसी समय खेत में चला गया और मेरी सास कुच्छ दिन पहले अपने पीहर गई हुई है जो मेरी नन्द भंवर कली ने मेरे उपर मिट्टी का तेल डाल दिया और दूसरी नन्द श्याम कली ने मेरे को माचिश लगाई जो मेरे कपड़ो को आग लग गई आग लगने के बाद मैने शोर मचाया तो उन दोनो ने मुझे पीटना शुरू कर दिया जो मैने खुद ही अपने कपडे उतार फेकें और गिर पड़ी यह वाकिया करीब 6/30 बजे सुबह का है उसने हमारे पड़ोसी श्री राम सिंह ने जाकर मेरी पीहर में मेरी माता जी को बतलाया जो मेरी माता जी करीब 9 बजे दिन मेरे पास पोहच गई और उसके बाद थोड़ी देर बाद मेरे पिता जी भी पोहुच गये जिन्होने मुझे लाकर J.P.M. अस्पताल दाखिल करा दिया उन्होने मुझे जान बूझ कर मारने के लिये जलाया है मेरे दोनों हाथ छाती पेट कमर दोनों पैर जल गये है मुंह और सर बचा है उनके खिलाफ कानूनी कार्यवाही की जावे मेरे दोनो हाथ जले हुये है।
RTI of Patient
Statement has been recorded before me and approval of patient has been taken for what has been recorded.
SD 06:15 PM
(Dr. Ashok Gupta) (H.S. Bang)
30.05.1979
(Randhir Singh)
I/c P.P. J.P.N. Hospital
30.5.1979
29. 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.
30. 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.
31. 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 the 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.
32. 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.
33. 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.
34. The Supreme Court also in the aforesaid case relied upon its earlier decision in Harjeet Kaur VS. State of Punjab 1999(6) SCC 545, 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.
35. 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 cross-examination are dispensed with. Since the accused has no power of cross-examination, 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 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)
36. As per the principle laid down by the Supreme Court in Laxman Vs. State of Maharashtra (Supra) that 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, we are of the opinion that when the dying declaration of the deceased was recorded by PW-6, ASI Randhir Singh, who was posted as In-charge of the Police Outpost at Jai Prakash Narayan Hospital, New Delhi, the deceased was in a fit state of mind to give her statement. PW-6, ASI who recorded the statement of the deceased has stated in his evidence that Smt. Santosh (deceased) had voluntarily given her statement. After her statement was recorded, her thumb impression was also obtained. The signature of Dr. Ashok Gupta was also obtained on it. He further stated that the entire statement was recorded in the presence of Dr. Ashok Gupta. At the time of recording of dying declaration, the relatives or family members of Smt. Santosh (deceased) were not present. He also stated that Smt. Santosh was mentally fit to give the statement. Dr. Ashok Gupta has certified that the statement has been recorded in his presence and approval of the patient was obtained.
37. In view of the above, it cannot be said that Smt. Santosh (deceased), who was having a burn of 75% must not have been in a position to give her statement.
38. The next contention of learned counsel for the appellant is that there was no smell of kerosene in the body of the deceased when she was brought to the hospital, which makes the prosecution story doubtful. In support of his case, learned counsel for the appellant has relied upon the judgement of Honble Supreme Court in the case of Suresh Vs. State (2025)4 SCC 794.
39. In the case in hand, the incident in question took place at about 06:30 AM on 30.5.1979. The information about the incident was given to the first informant by one Ram Singh. After getting the information the first informant reached the matrimonial house of Smt Santosh (deceased) and admitted her to Irvin Hospital, Delhi at 01:40 PM, where she was under treatment. PW-5, Dr. P.K. Govila, who was on duty in the Casualty Ward of Irwin Hospital at Delhi on 30.5.1979 has stated that on 30.5.1979 at about 1:40 PM, Smt. Santosh was brought by Subedar Tota Ram. The lady had sustained burn wounds. She was admitted in the hospital and was referred to the Specialist. She died at 05:30 AM on 31.5.1979, the death summary was prepared vide Ext. Ka-10. PW-4, Dr. Vishnu Kumar, Professor and Head of Department, Forensic Medical, Maulana Azad Medical College, Delhi, who inspected the dead body at 11:00 AM on 31.5.1979 stated that there was no smell of kerosene. Here it is pertinent to mention that the incident in question took place at 06:30 AM on 30.5.1979, whereas PW-4, Dr. Vishnu Kumar inspected the body on 31.5.1979, i.e. after 28-1/2 hours. Further, the deceased in her dying declaration has stated that Bhanwarkali sprinkled kerosene over her and Shyam Kali set her on fire and after she caught fire, she took off her clothes herself. Therefore, non-smell of kerosene from the body of the deceased is not fatal for the prosecution in the present case as the body was inspected after more than 28 hours of the incident in question.
40. In Suresh (Supra) relied upon by the learned counsel for the appellant, the deceased was immediately brought to the hospital barely within a few hours of the incident and in that background, Honble Supreme Court held that normally where the death is caused by burning through kerosene, the smell of kerosene would definitely remain for a few hours, however, the smell does weaken after some time.
41. Since, in the present case, the deceased was examined after more than 28 hours, therefore, the aforesaid case is not applicable to the facts of the present case.
42. Next submission of learned counsel for the appellant is that dying declaration of the deceased was recorded by a Constable, which was only signed by the Sub-Inspector, the Constable who recorded the dying declaration of the deceased has not been examined. Further Magistrate was not called to record the dying declaration of the deceased.
43. This contention of learned counsel for the appellant is misconceived inasmuch as in this case the dying declaration of the deceased was recorded by ASI Ranbir Singh, who was posted as In-charge of Jai Prakash Narayan Hospital, New Delhi. In his evidence, he deposed that on 30.5.1979, he was posted as In-charge at the police outpost at Jain Prakash Narayan Hospital, New Delhi. He received a medico-legal sheet through Constable Ram Autar and on the basis thereof, he went to record the statement of Smt. Santosh. He further deposed that since he has injury on his thumb, he got the statement written by Constable Ram Kumar and put his signature. Whatever was told by Smt. Santosh was recorded. This witness has stated that Smt. Santosh had voluntarily given her statement. After her statement was recorded, her thumb impression was also obtained thereon. He stated that the entire statement was recorded in the presence of Dr. Ashok Gupta.
44. Therefore, the judgement in Manjunath (Supra) relied upon by the learned counsel for the appellant is of no help to the appellant.
45. Further, so far non-recording of the dying declaration by the Magistrate is concerned, there is no rule to the effect that a dying declaration is inadmissible when it it recorded by a police officer instead of a Magistrate.
46. Learned Trial Court has observed that in the present case, no doubt the dying declaration was recorded by a police inspector and it was not recorded by the Magistrate, but the circumstances indicate that the patient was so seriously burnt that there were hardly any chances for her survival. The doctor immediately sent a slip to the police outpost from where the Sub-Inspector Ranbir Singh came and in the presence of the doctor, the statement was recorded. The statement was recorded at 06:15 PM, i.e. after the normal court hours. The doctor and the police officer might have thought it better to record the statement first rather than to go in search of the Magistrate in a metropolitan city like Delhi. The police officer, who recorded the statement of the deceased, was not the investigating officer of the case and in no way connected with the investigation of the case and was an independent person.
47. In Munnu Raja and another Vs. State of Madhya Pradesh, 1976 (2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way of First Information Report, which was recorded in writing, was held to be admissible in evidence.
48. In Bhagirath Vs. State of Haryana, AIR 1997 SC 234, on receiving message from the hospital that a person with gun shot injuries had been admitted a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration.
49. In State of Karnataka Vs. Shariff, (2003)2 SCC 473, it has been held by the Honble Supreme Court as under:
It is true that PW 11 and PW 14 were Police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate.
50. In State of Jharkhand Vs. Shailendra Kumar Rai, 2022 Live Law (SC) 890, Honble Supreme Court held as under:
There is no Rule to the effect that a dying declaration is inadmissible when it it recorded by a police officer instead of a Magistrate. Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case.
51. Next submission of learned counsel for the appellant is that none of the witnesses from the neighbourhood have been examined and no incriminating material appearing against the accused was to her in her statement under Section 313 Cr.P.C.
52. Admittedly, the incident in question took place at the matrimonial home of the deceased at Village Mawi Kalan, which is situated in district Baghpat, whereas the first informant is the resident of district Meerut. PW-1, Tota Ram, in his evidence before the Court has stated that Mawi Kalan is situated at about 11-12 miles away from his village and when he reached at the matrimonial house of the deceased, about 20-25 persons were present at the house of Ziley Singh. It is to be mentioned that the first informant was the resident of other village and the persons, who gathered at the door of Ziley Singh were the resident and neighbour of Ziley Singh and instead of examining them by the prosecution, rather they have to be examined by the defence and their non-examination by the prosecution is not fatal to the prosecution. Further the statement of the accused was recorded under Section 313 Cr.P.C. in question-answer form and the circumstances appearing against her was put to the accused and, therefore, judgements relied upon by the learned counsel for the appellant is of no help to her.
53. Next submission of learned counsel for the appellant is that prosecution has failed to produce the doctor, who had given fitness certificate of the deceased, which creates grave doubt about the authenticity of the fitness certificate.
54. Tarun Sharma Vs. State of Haryana, 2026(1) JIC 130, relied upon by the learned counsel for the appellant, was a case in which Doctor, who treated the deceased has stated that the deceased remained unconscious almost fully from the time of the assault on 31st March, 2012 until his death on 14th April, 2012 and was never in a condition to speak and hence the the fitness certificate stating that Munish Kumar was fit to give a statement become doubtful. Further the prosecution has failed to identify or examine the doctor, who had issued the fitness certificate certifying that Munish Kumar (deceased) was fit to make a statement, which creates grave doubt about the authenticity of the fitness certificate and that non-examination of the said doctor, deprived the defence an opportunity to discredit the fitness certificate.
55. The aforesaid case (Tarun Sharma) (Supra) relied upon by the learned counsel for the appellant is distinguishable on the facts of the present case. In the instant case after the incident at 06:30 AM on 29.5.1979 and till the recording of her statement (dying declaration), the deceased was fully conscious. PW-5, Dr. P.K. Govila in his evidence has stated that on 30.5.1979, he was on duty as A.C.H.O in the Casualty Ward of Irwin Hospital at Delhi on 30.5.1979, which is now Jai Prakash Narayan Hospital, Delhi. On 30.5.1979 at about 1:40 PM, Smt. Santosh was brought by Subedar Tota Ram. The lady had sustained burn wounds. She was admitted in the hospital and was referred to the Specialist. PW-5, Dr. P.K. Govila has proved the admission slip, which contained the endorsement of Dr. Ashok Gupta that the patient was fit for statement at 04:50 PM, which he proved as Ext Ka-9. Admission slip has been prepared by this witness (PW-5 Dr. P.K. Govila). In his cross-examination, PW-5 has certified the signature of Dr. Ashok Gupta on the dying declaration. The endorsement of Dr. Ashok Gupta on the dying declaration that statement has been recorded before me and approval of the patient has been taken for what has been recorded. The said endorsement has been marked as Ext. Ka-12. The endorsement of Dr. Ashok Gupta was proved by PW-5, Dr. P.K. Govila, which was not challenged in the cross-examination and, thus the endorsement (Ext. Ka-12) has been accepted as true. This endorsement was made at 4:50 PM. Aforesaid dying declaration also contained the time and date of recording the same.
56. Last submission of learned counsel for the appellant is that the investigating officer has not been produced by the prosecution.
57. Before coming to this contention of learned counsel for the appellant that the investigating officer has not been produced by the prosecution, it would be useful to quote Section 294 of the Code of Criminal Procedure:
294. No formal proof of certain documents: (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code without proof of the signature of the person to whom it purports to be signed.
Provided that the Court may, in its discretion, require such signature to be proved.
58. From the perusal of Section 294(3) of the Code, it is clear that where the genuineness of the documents is not disputed, such documents may be read in evidence in any inquiry, trial or other proceeding under the Code without proof of the signature of the person to whom it purports to be signed.
59. In the instant case, genuineness of the papers, site plan (Ext. Ka-14 and charge sheet (Ext. Ka-15 were admitted by the defence counsel, and hence these two papers were admitted on record without formal proof and no application was moved by the defence counsel to cross examine the prosecution witnesses, the investigating officer, who conducted the investigation and submitted the charge sheet, the Court has no occasion to call him for cross-examination.
60. In Munnu Raja and another Vs. State of Madhya Pradesh, (1976) 3 SCC 104, Honble Supreme Court held as under:
"....It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...."
It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of theInvestigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged.
61. In the instant case, the investigation has not been conducted by PW-6, Randhir Singh, who recorded the dying declaration.
62. In Jai Karan Vs. State of Delhi (NCT) (1999) 8 SCC 161, it was held by Honble Supreme Court as under:
"A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premises which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable"
63. In Naeem Vs. State of U.P., 2024 SCC OnLine SC 237, Honble Supreme Court held as under:
It can thus be seen that this Court has clearly held that dying declaration can be the sole basis of the conviction if it inspires the full confidence of the court. The Court isrequired to satisfy itself that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. It has further been held that, where the Court is satisfied about the dying declaration being true and voluntary, it can base its conviction without any further corroboration. It has further been held that there cannot be an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. It has been held that the rule requiring corroboration is merely a rule of prudence. The Court has observed that if after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
64. The incident in question has taken place in the matrimonial house of the deceased where in addition to the accused Bhanwar Kali and Shyam Kali, husband and father-in-law of the deceased namely Shiv Kumar and Ziley Singh were also residing in the house, but the deceased in her dying declaration has only assigned the role of sprinkling kerosene and setting her on fire to Bhanwar Kali and Shyam Kali. Further the conduct of appellants side was also unwarranted inasmuch as after the incident in question took place, they did not take any steps to get the injured (deceased) admitted in the hospital and left her at the mercy of the God. PW-1 Tota Ram in his evidence has stated that on receiving information, he went to village Mawi Kalan where in the house of his Samdhi, he found that his daughter (deceased) was lying burnt on a cot in the courtyard. His daughter was alive at that time. On queries, her daughter told him that accused-Bhanwar Kali had sprinkled kerosene over her and accused-Shyam Kali had set her on fire with match. She also informed that when she raised noise, the two accused persons had beaten her and dragged her on the cot. Thereafter, PW-1, Total Ram arranged for transport and took to the deceased to Irvin Hospital, Delhi where she was admitted at 01:40 PM.
65. In the present case, there is nothing on record to suggest that there was any occasion for the first informant to falsely implicate the accused rather than to make arrangement for the treatment. We also found that the first informant after being informed about the incident, rushed to the spot, arranged for the vehicle and admitted the injured (deceased) to the hospital. PW-6, SI, Randhir, who recorded the statement of the deceased has stated that when statement of the deceased was being recorded, her family members and relatives were not present there. This statement of PW-6, Randhir Singh is enough to show that he took all precautions that her statement should not be guided by some other persons version. Further PW-6, Randhir Singh, who recorded the dying declaration of the deceased was disinterested person and a responsible officer and he is not connected with the investigation of the case and there is no circumstances or material to suspect that he had any animus against the accused or was in any was interested in fabricating the dying declaration. Moreover, Dr. Ashok Gupta was also present when the statement (dying declaration) of the deceased was being recorded, who also put a note on the dying declaration that the statement has been recorded before me and approval of the patient has been taken for what has been recorded.
66. In addition to the dying declaration, PW-1, Tota Ram, who is the first informant and father of the deceased and PW-2, Smt. Mahendra, who is the mother of the deceased, who reached the spot, took the deceased to the hospital, have also supported the prosecution case.
67. We have carefully scrutinized and examined the evidence of prosecution witnesses and we find that they have been correctly marshalled and assessed by the learned Trial Court. The impugned judgement and order do not call for any interference by this Court.
68. In view of what has been indicated above, we are of the view that the prosecution has successfully proved its case beyond all reasonable doubt against the accused-appellant.
69. Accordingly, the criminal appeal is dismissed.
70 The appellant Shyam Kali is on bail. Her bail bond is cancelled and sureties are discharged. She is directed to surrender before the Court concerned within three weeks to serve out the sentence awarded to her by the learned Trial Court.
71. Office is directed to send a copy of this order to the court concerned along with necessary documents for compliance and compliance report be submitted to this Court within two months.
(Devendra Singh-I,J.) (Chandra Dhari Singh,J.)
Dated: 02.4.2026
Ishrat
