[Cites 17, Cited by 0]
Delhi High Court
Mohd.Ayub vs State on 16 April, 2026
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.03.2026
Pronounced on: 16.04.2026
+ CRL.A. 986/2004
MOHD. AYUB .....Appellant
Through: Mr.Jitendra Sethi, Sr. Adv. with
Mr.Sidhanth, Mr.Hemant
Gulati, Mr.Shobit Dimri,
Mr.Bharat, Mr.Keshav Sethi &
Mr.Rajesh Kaushik, Advs.
versus
STATE N.C.T Delhi .....Respondent
Through: Mr.Aman Usman, APP for the
State with Mr.Manvendra
Yadav, Adv. along with Insp.
Chetan Mandia, PS Lajpat
Nagar.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
NAVIN CHAWLA, J.
1. The instant appeal has been preferred by the appellant,
challenging the Judgement dated 16.10.2004 passed by the learned
Additional Sessions Judge, New Delhi (hereinafter referred to as
„Trial Court‟) in S.C. No. 216/2000 (MM) arising out of FIR No.
223/2000 registered at Police Station Lajpat Nagar, New Delhi, vide
which the appellant was convicted for the offence punishable under
Section 302 of the Indian Penal Code, 1860 („IPC‟).
2. The appellant further challenges the Order dated 18.10.2004
passed by the learned Trial Court, sentencing the appellant to undergo
rigorous imprisonment for life with fine of Rs.5,000/- and in default of
payment of fine, to undergo further simple imprisonment for one year.
FACTS OF THE CASE
3. Briefly stated, it is the case of the prosecution that:
(a) On 28.03.2000 at about 10:55 P.M. on receipt of DD No. 24
regarding information received from Safdarjung Hospital
through Duty Constable Om Parkash that one lady has been
admitted in the hospital by her neighbour Nirmala in 90%
burnt condition, PW-15/S.I. Vijay Singh reached the hospital.
(b) Prior to that, in the MLC report of the deceased (Ex.PW-
13/A), the Doctor, PW-13/Dr.Upender Sharma opined that
the deceased had been brought by her neighbour- PW-
2/Nirmala and that the deceased had herself stated that she
was burnt when "Ayub (her new lover) poured oil (kerosene
oil) from stove and set her on fire she was pouring kerosene
into the stove.".
(c) PW-15/S.I. Vijay Singh thereafter recorded the statement of
the deceased (Ex-PW-15/C). She mentioned that she had
lived at A 59/14, Shera Mohalla for the last 4 to 5 years. She
had been married to one Dubar and had three children from
her marriage. She stated that her husband had expired about
six years ago. Since then, she had been supporting her
children by cleaning houses. About three years ago she had
met the appellant, who was the son of Rehman Elahi,
resident of Sarnbhal Heda P.S- Mirapur, District Muzaffar
Nagar, U.P. The appellant had sexual relations with her and
used to provide weekly maintenance to her. He was working
in some factory. On 28.03.2000 at about 8:00 P.M., the
appellant came to her house with a bottle of liquor and
started drinking. She told him not to take the same and he
should pay for her expenses, but he did not listen and
continued drinking. On that, an altercation took place
between them. During that time, the appellant picked up the
kerosene oil can, poured the kerosene over her and pushed
her on the burning stove, by which she caught fire. The
appellant then fled from the spot. In the meantime, her
neighbour- PW-2/Nirmala reached and poured the water on
her and extinguished the fire. She stated that the appellant
had poured the kerosene over her and pushed her on the
burning stove with the intention to kill her.
(d) PW-15/S.I. Vijay Singh opined that the case was fit for
registration of an offence under Section 307 of the IPC.
(e) Thereafter, police officials went to the place of the incident.
A Seizure Memo (Ex-PW-2/A) was prepared and the crime
team as well as the photographer were called.
(f) Unfortunately, the deceased passed away on 29.03.2000 at
around 6:30 A.M.
(g) The Postmortem report recorded the cause of death as
"shock caused by antemortem thermal burn injuries".
(h) The appellant was arrested at around 6:30 P.M. on
29.03.2000 from his house in Delhi.
(i) The Brief Facts (Ex.PW-15/DA) were recorded by PW-
15/S.I. Vijay Singh on 01.04.2000.
4. Upon completion of investigation, a chargesheet was filed
against the appellant under Section 302 of the IPC.
5. The learned Trial Court, vide order dated 05.09.2000, framed
the following charge against the appellant:
"That on 28.3.2000 at about 8.30PM at
A.59/14, Shera Mohalla, Garhi Village, New
Delhi you set at fire to Madhu by pouring
kerosene oil on her and by pushing her on the
burning stove with an intention to kill her and
thereby committed offence u/s 302 IPC and
within my cognizance."
6. The appellant pleaded not guilty before the learned Trial Court.
7. To prove its case, the prosecution examined 15 witnesses,
including the purported eyewitnesses as well as the concerned public
officials.
8. Thereafter, the statement of the appellant was recorded under
Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). He
denied the incriminating evidence appearing on record against him
and claimed false implication. He stated that he was not present at the
spot at the time of the incident and rather was called from the factory
by the son of the deceased, that is, PW-5/Rajesh. He stated that when
he reached the spot, the deceased was already in flames and that he
along with PW-2/Nirmala, that is, the neighbour of the deceased,
threw water on her to extinguish the fire. He stated that in the process
of saving the deceased, he too sustained burn injuries. He stated that
he is a married man and treated the deceased as his sister.
9. The appellant further opted to lead defence evidence and
examined two witnesses who were his fellow factory workers. They
stated that they had accompanied the appellant to the spot after PW-
5/Rajesh had come asking for help.
IMPUGNED ORDER OF CONVICTION:
10. The learned Trial Court, in the impugned order of conviction,
framed the facts required to be proved by the prosecution, as under:
"30. In this case the prosecution is required to
prove the three facts. First Smt. Madhu died
and her death was unnatural by fire. Second
the accused Mohd Ayub poured kerosene oil
over Madhu and pushed her on the burning
stove with intention to cause death of Madhu
by fire. Third the deceased had certain motive
behind the death of Madhu."
11. Relying on the MLC report, the post-mortem report, the
identification of the deceased‟s body, as also the DD entry in this
regard, the learned Trial Court held the first fact of the deceased dying
an unnatural death due to fire, to be proved beyond reasonable doubt.
12. Having found the death to be unnatural, the learned Trial Court
proceeded to examine whether the appellant was responsible for the
act. While acknowledging that the alleged eye-witnesses had turned
hostile, the learned Trial Court relied on circumstantial evidence to
hold the appellant guilty. It was held that the appellant had a close
relationship with the deceased, which fact was corroborated by the
testimony of PW-4/Ran Singh, the landlord of the deceased. On the
presence of the appellant at the spot, the learned Trial Court rejected
the defence that he was called to the spot after the incident, citing an
empty liquor bottle that was seized from the spot and the evidence of
quarrel preceding the incident.
13. The learned Trial Court attached significance to the dying
declaration recorded by the doctor- PW-13/Dr.Upender Sharma in the
MLC of the deceased, and opined that the shortfalls highlighted by the
defence were not fatal.
14. It was further observed that although PW-15/S.I. Vijay Singh
recorded the statement of the deceased in a routine manner and should
have been more careful and called the doctor, nurses or the Magistrate
while recording the same, there were no glaring inconsistences
between the two dying declarations of the deceased.
15. It was held that the conduct of the appellant in fleeing to Meerut
immediately after the incident and seeking medical attention there
instead of accompanying the deceased, was also an indication of his
guilt.
16. The plea of absence of motive was disregarded and it was
opined that when the totality of circumstances were visualised, the
motive became apparent that the appellant was unable to bear further
expenses of the deceased and her children, and therefore he took the
extreme step.
17. It was held that the circumstances form a complete chain and
every link proved strong by reliable evidence. Accordingly, the
appellant was found guilty of committing offence under Section 302
of the IPC.
18. Thereafter, the Order on Sentence dated 18.10.2004 was passed,
imposing the sentences as noted hereinabove.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR
THE APPELLANT
19. Mr.Jitendra Sethi, the learned senior counsel for the appellant,
submits that the learned Trial Court has erred in convicting the
appellant by ignoring various material contradictions and an overall
absence of incriminating evidence against him.
20. He submits that all the purported eye witnesses, that is, PW-
2/Nirmala, PW-5/Rajesh, and PW-6/Geeta were declared hostile by
the prosecution. Further, both PW-2/Nirmala and PW-5/Rajesh have
deposed in favour of the appellant, stating that he was called by PW-
5/Rajesh from the factory to save the deceased, and in process thereof,
sustained burn injuries himself. He submits that the said fact can be
corroborated by the MLC report of the appellant (Ex.PW-14/A) as
also by the statements of DW-1/Md. Noor Hasan and DW-2/Sh.
Naseem.
21. He submits that while it is mentioned in the MLC of the
appellant that he got treatment earlier from a hospital in Meerut, no
such document has been produced or collected by the Investigating
Officer. Further, the doctor who conducted the MLC of the appellant,
namely, one Mr. Divesh Kumar, was not produced for evidence.
Hence, the alleged statement made by the appellant to the said doctor
that he was treated in Meerut, would not be admissible. Furthermore,
PW-2/Nirmala as also PW-5/Rajesh have stated that the appellant
accompanied PW-2/Nirmala to the hospital.
22. He highlights that the appellant has otherwise been shown to
have been arrested from his house in Delhi on 29.03.2000, which he
states is unnatural for a person who has just committed murder. He
submits that therefore, conduct of the appellant is wholly inconsistent
with that of a perpetrator of a crime and raises suspicion on the case of
the prosecution. Reliance to this effect is placed on the judgments of
the Supreme Court in State of Rajasthan v. Prithvi Raj, 1995 SCC
(Cri) 934 and Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.,
2025 INSC 529.
23. He submits that no motive has been proved in the present case.
24. The learned senior counsel submits that nonetheless, even the
other evidence is insufficient and the circumstantial evidence relied
upon by the prosecution fails to establish a complete chain of events
pointing towards the guilt of the appellant.
25. He submits that the alleged dying declarations, that is, the
statement recorded by PW-13/Dr. Upender Sharma in the MLC of the
deceased (Ex.PW-13/A), and the statement of the deceased as
recorded by the Investigating Officer, PW-15/S.I.Vijay Singh (Ex.PW-
15/C), are implausible, inconsistent and riddled with procedural
shortfalls.
26. With regard to the alleged dying declaration recorded in the
MLC of the deceased, the learned senior counsel highlighting the
nature of the words such as "new lover" used in brackets therein,
submits that the same is in fact a personal observation of PW-13/Dr.
Upender Sharma and not a dying declaration made by the deceased.
He submits that this is further affirmed by the fact that even the use of
the word "kerosene" in the MLC has been admitted by the doctor as
being written on his own accord as there was a smell of kerosene and
not on account of the deceased uttering the same. He submits that the
document was not attested by any witness and does not bear the
signature or thumb impression of the deceased.
27. Coming to the alleged dying declaration recorded by PW-15/S.I.
Vijay Singh, he submits that it appears to be a manufactured
document. It contains unusually detailed particulars, including the
precise address of the appellant, which renders it highly improbable,
particularly in light of the fact that a person sustaining more than 90%
burns would not furnish such specifics. He submits that PW-
15/S.I.Vijay Singh has admitted that the application seeking opinion of
the doctor if the deceased was fit to make a statement (Ex-PW-15/B),
was not prepared by him. He submits that as the fitness of the
deceased has not been proved on record, the said document cannot be
relied upon. Additionally, PW-15/S.I. Vijay Singh also did not provide
any information to the SDM regarding the condition of the deceased
during the four hours that he was at the hospital. Resultantly, the
dying declaration itself is inadmissible.
28. He submits that both the alleged dying declarations are also in
complete contradiction to one another. While the MLC of the
deceased records that the appellant poured oil on the deceased from
the stove and set her on fire when she was pouring kerosene on the
stove, Ex.PW-15/C records that the appellant poured kerosene oil on
her from a can and pushed her towards the burning stove. Reliance is
placed on the judgments of this Court in State v. Hori Lal & Anr.,
2006 SCC OnLine Del 996, and of the Supreme Court in Kamla (Smt)
v. State of Punjab, (1993) 1 SCC 1, and Panchdeo Singh v. State of
Bihar, 2002 (1) SCC 577, to submit that this factor further reduces the
evidentiary value of the documents.
29. He submits that even more damaging contradictions emerge
from the Brief Facts (Ex.PW-15/DA) recorded by PW-15/S.I. Vijay
Singh. In the Brief Facts, PW-15/S.I. Vijay Singh has recorded that
there was a scuffle between the appellant and the deceased, on account
of which she fell on the stove and caught fire. He has also recorded
that the appellant got burnt while trying to save the deceased. Placing
reliance on Section 114(g) of the Indian Evidence Act, 1872 (IEA),
the learned senior counsel submits that the Investigating Officer has
therefore misled the Court by suppressing the statement of the
deceased on basis of which the Brief Facts were recorded by him.
Hence, an adverse presumption should be drawn against the case of
the prosecution.
30. He submits that as far as PW-4/Ran Singh is concerned, he has
tried to improve his statement by mentioning therein that the deceased
told him that a quarrel took place between the deceased and the
appellant and that he pushed her on the burning stove. PW-4/Ran
Singh has been duly confronted during cross-examination with his
statement under Section 161 of the Cr.P.C., wherein he did not
mention the same. Hence, no reliance can be placed on this part of his
testimony. Reliance is placed on the judgment of the Supreme Court
in Laxmi (Smt) v. Om Prakash & Ors., (2001) 6 SCC 118.
31. He highlights that another major lacuna in the case of the
prosecution is that while the Seizure Memo (Ex.PW-2/A) records the
recovery of only four items, namely, one iron stove, one green colour
plastic can, burnt clothes of the deceased, and one empty bottle of
liquor; the pullanda opened in Court also included a match box tied
with a chunni. He submits that the alleged liquor bottle stated to have
been recovered from the spot does not find mention in the site plan nor
was the said bottle sent to the FSL for determining if it even contained
alcohol or not. This casts serious doubts on the integrity of the entire
investigation.
SUBMISSIONS OF THE LEARNED ADDITIONAL PUBLIC
PROSECUTOR
32. Mr. Aman Usman, the learned APP for the State, submits that
there is no infirmity in the conviction and sentence awarded to the
appellant. He submits that the death of the deceased is admittedly
unnatural and caused due to burn injuries, which stands proved by the
MLC of the deceased as also by the postmortem report.
33. He states that the testimony of a hostile witness can be relied
upon in so far as it supports the prosecution‟s case. The presence of
the appellant at the spot stands admitted and corroborated from the
testimonies of the prosecution witnesses, including PW-2/Nirmala and
PW-5/Rajesh, who were declared hostile.
34. He states that the dying declarations are consistent inasmuch as
they clearly implicate the appellant. Minor variations in the manner of
occurrence do not ipso facto diminish the core allegation that it was
the appellant who burnt the deceased. He highlights that the police
could have in no way influenced PW-13/Dr. Upender Sharma at the
time of recording of the statement of the deceased in the MLC, as the
police did not even know of the incident having taken place at that
time. He submits that a dying declaration can be acted upon without
corroboration. There is also no rule to the effect that a dying
declaration is inadmissible when it is recorded by a police officer
instead of a Magistrate. He submits that in the present case, both the
dying declarations are consistent on the fact that it was the appellant
who had set the deceased on fire. Therefore, the appellant has rightly
been convicted. In support of his plea, he places reliance on the
judgments of the Supreme Court in The State of Jharkhand v.
Shailendra Kumar Rai, (2022) 14 SCC 299, and Jemaben v. The
State of Gujarat, 2025 SCC OnLine 2299.
35. He states that the conduct of the appellant in fleeing from the
spot instead of aiding the injured deceased, is also indicative of his
guilty mind. The appellant cannot rely on his MLC to substantiate his
own injuries, while asking for the same to be discarded as far as it
records his statement that he had been treated in Meerut.
36. He highlights that the recovery of the liquor bottle from the spot
corroborates the altercation that took place between the deceased and
the appellant prior to the incident taking place.
37. He submits that therefore, the chain of circumstantial evidence,
when viewed in entirety, clearly points towards the guilt of the
appellant and he has been rightly convicted and sentenced by the
learned Trial Court.
ANALYSIS AND FINDING
38. We have considered the submissions made by the learned
counsels for the parties and have perused the record.
39. It is undisputed that the death of deceased was unnatural and
occurred due to burn injuries. The primary issue for determination,
therefore, is whether the prosecution has been able to establish that it
was the appellant who caused the death of the deceased.
40. Admittedly, the purported eye witnesses, that is, PW-2/Nirmala,
the neighbour, who admittedly took the deceased to the hospital; PW-
5/Rajesh, the son of the deceased; and, PW-6/Geeta, the daughter of
the deceased, have turned hostile. Hence, the conviction of the
appellant has been based on circumstantial evidence as well as the
alleged dying declarations made by the deceased to PW-13/Dr.
Upender Sharma and PW-15/S.I. Vijay Singh.
41. As far as the law concerning dying declarations is concerned, it
is no longer res integra that dying declarations, if found to be
voluntary, truthful and made in a fit state of mind, can form the sole
basis of conviction; however, where such declarations suffer from
inconsistencies, procedural infirmities and improbabilities, Courts
must exercise caution in placing reliance on them. In Irfan v. State of
Uttar Pradesh, 2023 SCC OnLine SC 1060, the Supreme Court
explained the juristic principle on basis of which dying declaration is
accepted as an important piece of evidence, capable of leading to
conviction on its own and without further corroboration, but at the
same time also cautioned that the Court must first be satisfied that the
dying declaration is reliable and truthful before placing reliance on it.
We quote from the judgement as under:-
"43. The juristic theory regarding the
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 the
deathbed 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 courts 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, should 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. [See : Laxman v. State
of Maharashtra, (2002) 6 SCC 710]
xxxxx
48. The justification for the
sanctity/presumption attached to a dying
declaration, is two fold; (i) ethically and
religiously it is presumed that a person while
at the brink of death will not lie, whereas (ii)
from a public policy perspective it is to tackle
a situation where the only witness to the crime
is not available.
xxxxx
60. Since time immemorial, despite a
general consensus of presuming that the dying
declaration is true, they have not been stricto -
sensu accepted, rather the general course of
action has been that judge decides whether the
essentials of a dying declaration are met and if
it can be admissible, once done, it is upon the
duty of the court to see the extent to which the
dying declaration is entitled to credit.
61. In India too, a similar pattern is
followed, where the Courts are first required
to satisfy themselves that the dying declaration
in question is reliable and truthful before
placing any reliance upon it. Thus, dying
declaration while carrying a presumption of
being true must be wholly reliable and inspire
confidence. Where there is any suspicion over
the veracity of the same or the evidence on
record shows that the dying declaration is not
true it will only be considered as a piece of
evidence but cannot be the basis for conviction
alone.
62. There is no hard and fast rule for
determining when a dying declaration should
be accepted; the duty of the Court is to decide
this question in the facts and surrounding
circumstances of the case and be fully
convinced of the truthfulness of the same.
Certain factors below reproduced can be
considered to determine the same, however,
they will only affect the weight of the dying
declaration and not its admissibility:--
(i) Whether the person making the
statement was in expectation of death?
(ii) Whether the dying declaration was
made at the earliest opportunity? "Rule
of First Opportunity"
(iii) Whether there is any reasonable
suspicion to believe the dying
declaration was put in the mouth of the
dying person?
(iv) Whether the dying declaration was
a product of prompting, tutoring or
leading at the instance of police or any
interested party?
(v) Whether the statement was not
recorded properly?
(vi) Whether, the dying declarant had
opportunity to clearly observe the
incident?
(vii) Whether, the dying declaration has
been consistent throughout?
(viii) Whether, the dying declaration in
itself is a manifestation/fiction of the
dying person's imagination of what he
thinks transpired?
(ix) Whether, the dying declaration was
itself voluntary?
(x) In case of multiple dying
declarations, whether, the first one
inspires truth and consistent with the
other dying declaration?
(xi) Whether, as per the injuries, it
would have been impossible for the
deceased to make a dying declaration?
63. It is the duty of the prosecution to
establish the charge against the accused
beyond the reasonable doubt. The benefit of
doubt must always go in favour of the accused.
It is true that dying declaration is a
substantive piece of evidence to be relied on
provided it is proved that the same was
voluntary and truthful and the victim was in a
fit state of mind. It is just not enough for the
court to say that the dying declaration is
reliable as the accused is named in the dying
declaration as the assailant.
64. It is unsafe to record the conviction on
the basis of a dying declaration alone in the
cases where suspicion, like the case on hand is
raised, as regards the correctness of the dying
declaration. In such cases, the Court may have
to look for some corroborative evidence by
treating the dying declaration only as a piece
of evidence. The evidence and material
available on record must be properly weighed
in each case to arrive at an appropriate
conclusion. The reason why we say so is that
in the case on hand, although the appellant-
convict has been named in the two dying
declarations as a person who set the room on
fire yet the surrounding circumstances render
such statement of the declarants very
doubtful."
42. Most recently, the Supreme Court in Sanjay Kumar Sharma v.
State of Bihar & Ors., 2026 INSC 223, has summarized the principles
applicable to the scrutiny and effect of a Dying Declaration, as under:
"13. From a conspectus of the above
decisions, it is clear: That, a dying declaration
is a very important species of evidence
capable of proving the crime proper and
identifying the accused, an exception to
hearsay having been provided by Section 32 of
the Indian Evidence Act. That, a dying
declaration, for reliance should inspire
confidence in the Court as to its credibility.
That, the Court should be satisfied it is made
by the deceased without any prompting or
tutoring or coercion or is a mere figment of
imagination. That, then conviction can be
based solely on the dying declaration and
there is no requirement of any corroboration.
That, it can be reduced to writing or can be
oral, as testified by reliable witnesses. That, it
can be one or numerous and if more than one;
exculpatory and inculpatory, it is for the Court
to find out which is believable. That, it can be
a lengthy one or a short one, so far as the
crime is spoken of and identification of the
perpetrator comes through. That, it can be a
single narrative or in a question and answer
form. That, it can either have a history of the
rancour between the perpetrator and the
victim or can be merely the brief statement of
the incident. That, the capacity of the injured
to make the statement, both physical and
mental, need not be necessarily certified by a
doctor and would rest again on the
satisfaction of the Court on an analysis of the
testimony of the various witnesses and the
other evidence coming forth in trial. That, if
the Court is satisfied of the fit state of mind of
the injured from the evidence on record, a
contrary medical opinion or an absence of it
will be inconsequential. That, it can be made
before a Magistrate; Executive or Judicial, a
Doctor, a Police Officer, a relative or a third
party whose presence is not doubtful. That, the
desire of the declarant to live, through the
truth despite fear of imminent death cannot be
easily brushed aside. The decisions also
caution us that if the statement is doubtful then
one or more of the above aspects could result
in the dying declaration being eschewed
completely; based on the facts of each case.
14. As a corollary, it also has to observed:
That, if there is an iota of suspicion the Court
has to look for corroboration. That, the
medical certification as to the physical and
mental state always aids in arriving at a
satisfaction. That, in the wake of multiple
grievous injuries or a higher percentage of
burns, the declaration could be in question
and answer form, lending more credence as
actually spoken of by the injured as opposed to
a long drawn out narrative, which could be
mistook as supplied by interested related
parties. That, a dying declaration recorded by
the Judicial Magistrate, adds credence since
they are trained to record such declarations.
That, as far as possible, the recording is to be
done in the presence of the Doctor and
definitely not in the presence of numerous
bystanders; which could lead to a defence
being raised of prompting and tutoring. That,
the veracity of the declaration has to come
forth from the attendant circumstances as
brought out in evidence."
43. In light of the aforesaid principles, we shall now proceed to
examine the merits of the instant appeal.
44. The first purported Dying Declaration relied upon by the
prosecution is alleged to be contained in the MLC of the deceased
(Ex.PW-13/A). The same is reproduced herein below:-
45. The deceased had come to the hospital with 90% burns. Would
she use the words "her new lover" for describing the appellant as the
person who poured kerosene oil on her? This itself creates a doubt on
whether the above history was indeed recorded on the statement of the
deceased herself. The expression "her new lover" appears to be
recorded by the PW-13/Dr. Upender Sharma himself, maybe on being
informed like this by PW-2/Ms. Nirmala, rather than being the words
of the deceased herself. This apprehension is further strengthened by
the fact that PW-13/Dr. Upender Sharma in his testimony has
admitted that the reference to "kerosene" in the MLC was based on
smell noticed by him rather than any statement made by the deceased.
In the MLC, where this purported dying declaration is made, the word
"Informant" is not aligned with the words "pt herself" and appears to
have been added later. This further creates a doubt if the above
narration of the manner in which the deceased got burnt, was narrated
to PW-13/Dr. Upender Sharma by the deceased herself or by PW-
2/Nirmala. This is also coupled with the absence of the deceased‟s
signature or thumb impression on document. We, therefore, have our
doubt if this can be regarded as a dying declaration of the deceased.
46. The second alleged dying declaration (Ex.PW-15/C), recorded
by the Investigating Officer - PW-15/S.I. Vijay Singh, also suffers
from material infirmities. It contains unusually detailed particulars,
including the precise parentage and address of the appellant, which
renders it inherently improbable, particularly in light of the fact that a
person sustaining more than 90% burns would be unlikely to furnish
such specifics. Added to this is the fact that there is no cogent
evidence on record to establish that the deceased was in a fit condition
to make the statement. PW-13/Dr. Upender Sharma in his statement
does not state that he gave a certificate of medical fitness of the
deceased to give her statement. PW-15/S.I. Vijay Singh states that the
application seeking such certificate (Ex. PW-15/B) was prepared by
PW-9/HC Nassu Ahmed, who does not say so. Added to this is the
lack of explanation by the prosecution for non-involvement of the
SDM or the doctor while the said statement was allegedly being
recorded. The veracity of the said statement is therefore, highly
doubtful.
47. More importantly, we find that both declarations are not
consistent with each other in material particulars. While the MLC of
the deceased records that the appellant poured oil on the deceased
from the stove and set her on fire while she was pouring kerosene on
the stove, Ex.PW-15/C records that the appellant poured kerosene oil
on her from a can and pushed her towards the burning stove.
48. What is more important and puts a further doubt on the veracity
of either of the above two alleged dying declarations, is the Brief Facts
recorded by PW-15/S.I. Vijay Singh (Ex-PW-15/DA), which
introduces yet another version of the incident, stating that the deceased
had informed that the appellant had fought with the deceased and
poured kerosene oil on her, whereafter in a scuffle, the deceased fell
on the stove and while putting off the fire the appellant also got
burned badly. This version indicates that the appellant did not
intentionally push the deceased towards the stove, but she fell on the
same during the scuffle and in fact the appellant even tried to save her,
thereby casting a doubt if the appellant had any intention of causing
death of the deceased. These inconsistencies not only create a doubt
with regard to the manner in which the incident occurred, but more
importantly on the veracity of the alleged dying declarations.
49. Added to the above are the photographs of the site, wherein
from Ex. PW-8/3, the kerosene can be seen next to a stove with a gas
pipe and kept in a straight and neat condition, while in other
photographs, more particularly Ex. PW-8/4 to 8/7, the articles near the
kerosene stove are found scattered. This casts a doubt on the
prosecutions version that the appellant had poured kerosene on the
deceased from the can, as if it was so, he would not have taken pains
of keeping it neatly at a distant place before burning the deceased or
thereafter.
50. The third alleged dying declaration was propounded by PW-
4/Ran Singh, landlord of the deceased, who stated that the deceased
had told him that the appellant had poured kerosene oil on her and
pushed her on the burning stove. We are in agreement with the learned
Trial Court that the alleged dying declaration before PW-4/Ran Singh
cannot be believed, the same finding no mention in his statement
under Section 161 of the Cr.P.C., wherein he had stated that it was
PW-2/Nirmala who had informed him that the appellant had thrown
kerosene oil on the deceased and pushed her on the stove because of
which she died. Therefore, alleged dying declaration was not made to
or in front of PW-4/Ran Singh, but was a hearsay.
51. Turning to the other circumstantial evidence, we find that the
same do not cumulatively form a chain so complete that there is no
escape from the conclusion that within all human probability the crime
was committed by the appellant. The presence of the appellant at the
spot, by itself, is insufficient to establish his culpability, particularly
when the defence of him attempting to save the deceased finds
corroboration from the burn injuries he sustained, the Brief Facts
recorded by PW-15/S.I. Vijay Singh (Ex.PW-15/DA), and the
statements of the alleged eye witnesses and defence witnesses. The
motive attributed to the appellant as stated in the impugned judgment
is also not supported by any substantive evidence.
52. Added to this are factors such as the presence of an
unaccounted matchbox (per the seizure memo exhibited as Ex. PW-
2/A) in the sealed pullanda, and the liquor bottle alleged to have been
consumed by the appellant prior to the incident taking place not
finding mention in the site plan exhibited as Ex. PW-15/E. The
documents regarding the alleged treatment of the appellant at a
hospital in Meerut have also not been traced.
53. As noted hereinabove, the case of the prosecution is based on
circumstantial evidence, and the alleged dying declarations made by
the deceased. In a scenario where none of the alleged dying
declarations inspire confidence to form the sole basis of conviction,
the prosecution is required to make out a case basis circumstantial
evidence which is inconsistent with the innocence of the accused and
consistent only with his guilt. The incriminating circumstances should
be such as to lead only to hypothesis of guilt and must exclude every
other possibility of innocence of the accused. The complete chain of
circumstance should be fully established and mere suspicion cannot
take place of proof. Reference in this regard may be made to the
judgments of the Supreme Court in Narendrasinh Keshubhai Zala v.
State of Gujarat, (2023) 18 SCC 783 and Manoj@ Munna v. The
State of Chhattisgarh, 2025 INSC 1466.
54. Basis the above state of evidence and applying the above
mentioned tests, we find that the prosecution had been unable to prove
its case against the appellant beyond reasonable doubt. The appellant
is entitled to be accorded the benefit of doubt.
55. In Shailendra Kumar Rai (supra), the Supreme Court held that
a dying declaration can be acted upon without corroboration. The
primary effort of the Court has to be to find out whether the dying
declaration is true and if it is, no question of corroboration arises.
However, if the circumstances surrounding the dying declaration are
not clear or convincing, the Court may look for corroboration to the
dying declaration. The Court further held that although a dying
declaration ought to be ideally recorded by a Magistrate if possible, it
cannot be said that dying declarations recorded by police personnel
are inadmissible for that reason alone. The Court at the same time
cautioned that 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. It was further held that there is no format
prescribed for recording a dying declaration and it is not obligatory
that it should be recorded in a question-answer form as there can be
occasions when it is not possible to do so.
56. In the present case, however, keeping the entire evidence in
view, we find that the alleged dying declarations of the deceased do
not inspire much confidence and the required corroboration is missing.
There is also no reason supplied by PW-15/S.I. Vijay Singh as to why
the dying declaration was not recorded before the Magistrate or in a
question-answer form though according to him the deceased was in a
condition to give a long and detailed dying declaration. The said
judgment, therefore, does not support the case of the prosecution.
57. In Jemaben (supra), the Supreme Court found the dying
declarations to be consistent and even corroborated by other evidence
on record. The Court held that merely because there are minor
discrepancies in the version given by the prosecution witness with
regard to the dying declaration and with regard to the manner of
occurrence of the incident, the dying declaration given by the
deceased before the independent witness, that is, the doctor cannot be
ignored.
58. In the present case, we find that the discrepancies in the dying
declarations cannot be stated to be minor and, as noted hereinabove,
they are also not supported by other evidence on record. The said
judgment, therefore, again would have no application to the facts of
the case.
59. The impugned orders dated 16.10.2004 and 18.10.2004 are,
therefore, set aside. The appellant is acquitted of the Charge against
him. His personal bond and the surety are also discharged.
60. The appeal is allowed in the above terms.
61. A copy of this judgment be communicated to the concerned Jail
Superintendent as also to the learned Trial Court for necessary
compliance and information.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
APRIL 16, 2026/ns/ik
