State of U.P v. Counsel for

Dubey (P.W.-10). The first informant is described as Manohar Lal (P.W.- 1). It is undisputed that Ram Abhilakh Dubey (P.W.-10) is not a member of the family of either party. He described himself as public worker. During his cross-examination, it came out that he was a member of a political party. In such circumstances, it is strange, the F.I.R. offering the first person account of Geeta Devi (deceased) came to be submitted by Manohar Lal (P.W.-1) who is the maternal grand-father of Geeta Devi (deceased), on the strength of writing of Ram Abhilakh Dubey (P.W.-10).

5. The Written Report is Ex.Ka-14 at the trial while the F.I.R. is Ex.Ka-8 at the trial.

6. On such F.I.R. being registered, on 19.09.1997, the Dying Declaration of the deceased was recorded by Shri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, upon due certification made by Dr. A.K. Rastogi (P.W.-6) that the declarant was conscious and in a fit state of mind at that time as also during her statement being recorded. Since submissions have been advanced on the strength of that Dying Declaration, we deem it appropriate to extract the same, in entirety. "This is to certify that Geeta w/o Lalji is and remained mentally fit during the recording of dying declaration. ्शीमती गीता देवी पत्नी लालजी पता देविरयावीर थाना भेलुपुर ने बयान िकया िक मेरे आदमी लालजी ने मुझे 6 बजे सुबह पकड िलया और मेरे ससुर हरी ने मेरे कपड़ों मे िदया सलाई से जलाकर आग लगा दी एक पावजेब हरी मेरे ससुर का मेरे बाबूजी के पास है उसी के िलये मेरे पित ने कल बहुत मारा था और यह बात मैने अपनी मौसी से बताया था और इस बात से नाराज होकर मेरे ससुर ने मुझे जलाया और मेरे पित ने मुझे पकड़ िलया। जब मैं जलने लगी तब मुहल्ले की बहुत सी औरतें और मदर् आ गये मैं िकसी का नाम नही जानती। जब मैं जलने लगी तब मै िचल्लाई थी। मेरे पित और मेरे ससुर और मोहल्ले के लोग मुझको अस्पताल ले आये। मुझे और कु छ नही कहना हैं यह बयान मैं 3 CRLA No. 3174 of 1984 होश हवास में दे रही हूँ। R.T.I. of Geeta Devi Attested S.D. (Dr. A.K. Rastogi) E.M.O., S.S.P.G. Hospital, Varanasi I was present during the recording of dying declaration." It may be noted that the certification made by Dr. A.K. Rastogi (P.W.-6) is Ex.Ka-6 at the trial while the statement recorded by Shri N.H. Zaidi (P.W.-4) the then Additional City Magistrate, Varanasi, is Ex.Ka-1 at the trial.

7. Also, on 19.09.1977, the Investigation Officer Sub-Inspector S.K. Malik (P.W.-9) recovered a piece of burnt saree worn by the deceased, from the place of occurrence. It is Ex.Ka-12 at the trial. During treatment, Geeta Devi died on 23.09.1977. Inquest Report was prepared on

23.09.1977 by Sub-Inspector Jagjeevan Singh (P.W.-5). It is Ex.Ka-2 at the trial.

8. Next, on 24.09.1977, at 12:30 P.M., Dr. V.P. Subramanium (P.W.-7) conducted the autopsy examination on the dead body of the deceased. Autopsy Report is Ex.Ka-7 at the trial. The doctor opined, death was caused by burn injuries.

9. Upon conclusion of the investigation, Investigation Officer Sub- Inspector S.K. Malik (P.W.-9), submitted the charge-sheet.

10. Upon the case being committed for trial to the Court of Sessions, following charge came to be framed against the appellant: "That you, in furtherance of your common intention to commit murder of Smt. Geeta, wife of Lalji, you committed murder of Smt. Geeta by throwing kerosene oil over her body and putting fire to her at about 7 a.m. on 19.9.1977 in the house of Horilal situate in Mohalla Devariyabir, P.S. Bhelupur, Dist. Varanasi and there by you stand charged for the offence punishable under Section 302 read with section 34, I.P.C.and within my cognizance."

11. At the trial, besides relying on the above documentary evidence, the prosecution led oral evidence through ten witnesses. In that, they first examined Manohar Lal (P.W.-1), maternal grand-father of the deceased Geeta Devi. During his examination-in-chief, he proved - because the Geeta Devi (deceased) had left her 'payal' with her father, her in-laws 4 CRLA No. 3174 of 1984 were angry with her and and for that reason, they used to assault her. Then, he proved, he heard about the occurrence that Geeta Devi had received burn injuries, at her marital home. He saw her being transported to the hospital, in a rickshaw. He along with his daughter accompanied the injured Geeta Devi, to the hospital. He had heard that the deceased told her mother that she had been set ablaze by her father-in-law, her mother-in-law and husband. He denied having made any report to the police about the occurrence. He denied having affixed his thumb impression to the Written Report. He denied having made statement to the scribe Ram Abhilakh Dubey (P.W.-10) that the deceased had told him that she had set herself ablaze. At this stage, he was declared hostile.

12. Next, Smt. Mantuta, wife of Buddhiram and a neighbour of the accused persons, was examined as P.W.-2. She proved, she used to live nearby the matrimonial home of the deceased. She learnt that the deceased had received burn injuries at her matrimonial home. She saw that the deceased was being carried to the hospital by her in-laws. When asked about the occurrence, in-laws of Geeta Devi told her nothing. She denied having visited the injured Geeta Devi. At this stage, she was declared hostile.

13. Then, Smt. Ramadevi, wife of Vimal Prasad and mother of Geeta Devi (deceased) was examined as P.W.-3. She proved - before the occurrence, her husband had borrowed Rs. 800/- from Horilal, father-in- law of the deceased Geeta Devi. While Rs. 400/- had been repaid to Horilal, Rs. 400/- were outstanding. Aggrieved, Horilal used to visit the shop of her husband and hurl expletives. For that reason only, the said Horilal and the present appellant Lalji regularly assaulted the deceased. In that circumstance, the deceased had left her valuable 'payal' with her father. That had angered the accused persons, even more. They used to assault the deceased and not serve her meals, for days. Some times, they used to oust her from the house. Soon after the occurrence, she had seen the accused persons take the injured Geeta Devi to the hospital, on a rickshaw. That occurrence was seen by her younger daughter who wanted the rickshaw to stop but nobody listened. She went behind the rickshaw up to the hospital near Kabir Chauraha. After returning, she informed the witness about the same. 5 CRLA No. 3174 of 1984

14. Thereafter, the said witness proved - by the time she reached the hospital, the Additional City Magistrate had already recorded the statement of the injured Geeta Devi. Thereafter, she narrated that the injured Geeta Devi told her that she had been set ablaze by her father-in- law Horilal while her husband i.e. present appellant Lalji was holding her by her hand while her mother-in-law Smt. Sundar Devi was holding her by her legs. She further proved, during the cremation of the dead body of the deceased Geeta Devi, appellants were not present.

15. Next, Shri N.H. Zaidi, the then Additional City Magistrate, Varanasi was examined as P.W.-4. He proved, he recorded the Dying Declaration of the deceased, at the hospital, in the presence of Dr. A.K. Rastogi (P.W.-6). He also proved, the thumb impression of the declarant was affixed on the statement.

16. Then, Sub-Inspector Jagjeevan Singh was examined as P.W.-5. He proved the preparation of the Inquest Report and transportation of the dead body of the deceased Geeta Devi.

17. Next, Dr. A.K. Rastogi was examined as P.W.-6. He proved, he had certified that the declarant Geeta Devi was in a fit state of mind at the time of her Dying Declaration, recorded at 3:30 P.M., on 19.09.1977. He proved that Dying Declaration. It was marked as Ex.Ka-1 at the trial.

18. Next, Dr. V.P. Subramanium was examined as P.W.-7. He proved, the autopsy examination was conducted on the dead body of the deceased Geeta Devi, on 24.09.1977.

19. Next, Sub-Inspector Radhey Muni Yadav was examined as P.W.-8. He proved the registration of the F.I.R at 09:05 A.M. on 19.09.1977 and the relevant G.D. entries.

20. Thereafter, Investigation Officer Sub-Inspector S.K. Malik was examined as P.W.-9. He proved the investigation.

21. Last, the scribe Ram Abhilakh Dubey was examined as P.W.-10. He proved, he was public worker. He proved his handwriting on the Written Report. He also proved, he had written the names of Nand Lal and Lalli below the Written Report. He proved, he had written the words - " इन सब बातों 6 CRLA No. 3174 of 1984 से उब कर आग लगा िलया जो अस्पताल में भतर् हूँ", at the relevant time. He further proved, he could not identify the thumb impression affixed to that Written Report. Thereafter, he proved that (unnamed) brother of the deceased had told him that his sister had set herself ablaze. That person had asked the witness to accompany him to the hospital at Kabir Chauraha. Last, he proved, he wrote the Written Report on the instruction of Geeta Devi (deceased). To a question by the court, he stated, the deceased Geeta Devi had told him that her father-in-law, mother-in-law, husband and brother- in-law ('dewar'), had set her ablaze. On being shown the Written Report, he stated, he had not written in that report that the occurrence had been caused by the father-in-law, mother-in-law and her husband. At that stage, he was declared hostile.

22. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. Relevant to the submissions that had been advanced, question nos. 4, 7 & 14 together with their answer responses as furnished by the sole surviving appellant Lalji are as below: "्ऺश्न ४ - अिभयोजन का साष्य है िक १६-६-७७ को सुबह ७ को गीता देवी। मृतक। को अिभयु्व लालजी ने पकड़ िलया और लालजी के िपता मुलिजम होरीलाल ने गीता देवी के कपड़ों में िदया सलाई से आग लगा िदया। और मुलिजमा सुन्दर ने मी गीता को जलाने में अन्य मुलिजमान की मदद की थी । इसके वावत आपको क्या कहना है? उ्तर - गलत है। ्ऺश्न-७ अिभयोजन का साष्य है िक गीता देवी को घायल अवस्था में कवीरचौरा अस्पताल में भतर् िकया गया जहाँ पर मिजस््िेट ्शी एल०एच० जैदी पी० डब्लू ४ ने गीता देवी का बयान डा० ए० के ० रस्तोगी से गीता देवी (मृतक) की हालत के बारे में ्ऺमाण प्ऴ ्ऺाप्त करके िलया जो ्ऺदशर् क १ है। इसके बावत आपको क्या कहना है? उ्तर- गीता देवी ने स्वयं आग लगाया। ्ऺश्न-१४ मृतका गीता देवी ने अपने Dying Declaration में आपके िवरू्ध बयान िदया है िक आपने पकड़ कर और आपके िपता ने आग लगाई आपका क्या कहना है? उ्तर- गीता देवी के उनके मायके वालों ने और राम अिभलाख दूबे ने हम लोगों को फं साने (अपठनीय) िजसमें उसने यह गलत बयान िदया।"

23. Thereafter, one Chhedi Lal was examined as D.W.-1. He tried to prove, Geeta Devi (deceased) had informed him that she had set herself ablaze. In such facts, it has been submitted, the prosecution story is wholly unreliable and ridden with reasonable doubts. In the first place, there is no reliable F.I.R. Second, for whatever it may be worth, the F.I.R. does not corroborate the prosecution story. It is not clear who the first 7 CRLA No. 3174 of 1984 informant is. While Written Report bears the signature of Manohar Lal (P.W.-1), who is maternal grand-father of the deceased Geeta Devi, the narrative of the Written Report is a first person account ostensibly of Geeta Devi (deceased). Manohar Lal (P.W.-1) and the scribe Ram Abhilakh Dubey (P.W.-10) were declared hostile. Thus, it is not known who lodged the F.I.R. At the same time, the F.I.R. contains the narrative that puts in doubt the Dying Declaration. In fact, it is a case of suicidal death.

24. With respect to Dying Declaration, it has been submitted, the same has been recorded not in accordance with law. There is no certification by the doctor that the declarant was conscious and in a fit state of mind, to make that statement. Second, the same was recorded under the influence of the parents of the deceased. To the extent it conflicts with the first version of the deceased as narrated in the F.I.R. and as supported by Ram Abhilakh Singh (P.W.-10) - that he had prepared the Written Report on the instruction of the brother of the deceased Geeta Devi, the Dying Declaration in question is not reliable.

25. Further submission has been advanced by learned Senior Counsel that at the stage of Dying Declaration being recorded, Geeta Devi was an accused. Since Section 164 Cr.P.C. was not complied, that statement was of no worth. Last, it has been submitted, Dying Declaration not specifically confronted to the appellant under Section 313 Cr.P.C., no reliance may ever be placed on such adverse circumstance.

26. On the other hand, learned A.G.A. would submit, as per the defence theory, there is no denial that the occurrence took place inside the house of present appellant, on the date and time disclosed by the prosecution. The occurrence took place on 19.09.1977 whereas Geeta Devi died on

23.09.1977 i.e. after four days. However, no cross version of the occurrence was ever brought forth by the defence. They only maintained that the occurrence was suicidal and not homicidal. Therefore, there is no doubt that the occurrence took place inside the house of the present appellant wherein Geeta Devi suffered extensive burn injuries, for which she was hospitalized. Later, she died during treatment.

27. Seen in that light, there is absolutely no doubt that a cognizable 8 CRLA No. 3174 of 1984 offence had taken place which required investigation. To the extent the F.I.R. correctly records that Geeta Devi had received extensive burn injuries on 19.09.1977 at her matrimonial home, that cognizable offence was disclosed. All other facts narrated in the F.I.R. remained matters of investigation. Upon investigation it was found that the F.I.R. story was not correct to the extent it narrated that the occurrence was suicidal. To the extent it is now revealed that the occurrence was homicidal, no benefit may be drawn by citing contradictions on the strength of the F.I.R. narration alone.

28. Then, it has been submitted, Manohar Lal (P.W.-1), the first informant, was declared hostile as was the scribe, Ram Abhilakh Dubey (P.W.-10). What then survives is the Dying Declaration. Merely because on the date of the Dying Declaration being recorded, the declarant was technically an accused, is of no relevance. The fact of her death being undisputed and her statement having been recorded in accordance with the provisions of Section 32 of the Indian Evidence Act, 1872 and the law governing the same, it acquired the status of a Dying Declaration, arising from the subsequent death of Geeta Devi. Relying on the certification of the Dr. A.K. Rastogi (P.W.-6) and the proof of statement rendered by the Sri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, it has been submitted, there is absolutely no doubt that the said statement is wholly reliable. Referring to the statement, it has been submitted, it admits of no doubt how the occurrence was caused.

29. Insofar as compliance of Section 313 Cr.P.C. is concerned, it has been submitted, wholesome compliance of that provision of law has been made as is clear from the bare perusal of Question numbers 4, 7 and 14 put to the present appellant, and the answers furnished by him thereto.

30. Having heard learned counsel for parties and having perused the record, in the first place, it is undisputed, rather admitted between the parties that Geeta Devi was the wife of the present appellant Lalji and was living with him at her matrimonial home. Second, the evidence led by the mother of the deceased Geeta Devi, namely, Rama Devi (P.W.-3) that prior to the occurrence also, the deceased Geeta Devi was suffering physical abuse/violence at her matrimonial home, remained undisputed. It 9 CRLA No. 3174 of 1984 is also undisputed that Rs.800/- had been lent to the father of the deceased by her father-in-law, namely, Horilal. In that, Rs.400/- were being claimed by Horilal. In that backdrop, Rama Devi (P.W.-3) further proved that the deceased had left her valuable 'Payal' with her father. Angered by that, Geeta Devi was assaulted and kept hungry for days. She was also confined in a room by the appellant. While that evidence of confinement offered to Geeta Devi and assault may not be by way of direct evidence, at the same time, the factual background to the occurrence narrated by the mother of the deceased, namely, Rama Devi, remained undisputed.

31. In such facts, we have given our anxious consideration to the first submission advanced by learned Senior Counsel for the appellant that the F.I.R. is wholly unreliable. It is true, the F.I.R. has not been lodged by Geeta Devi or by her mother Rama Devi but on the face of it by her grand-father Manohar Lal (P.W.-1), in the hand writing of Ram Abhilakh Dubey (P.W.-10). To the extent, the F.I.R. discloses commission of a cognizable offence on 19.09.1977, wherein Geeta Devi received extensive burn injuries at her matrimonial home, there is no doubt raised by the defence.

32. There is also no doubt to the further narration in the F.I.R. that immediately after the occurrence, the injured Geeta Devi was admitted to a hospital at Varanasi. To that extent, irrespective of the issue of who is the author of the F.I.R. and how he learnt of the facts, the F.I.R. could not and was not lodged by Geeta Devi, the deceased.

33. As to the further narration, there does remain a doubt insofar as the F.I.R. contains a first person account - ostensibly of Geeta Devi. Yet, even during the cross-examination of the Investigation Officer Sub- Inspector S.K. Malik, no doubt emerged as may allow the Court to infer existence of a possibility that the F.I.R. was actually registered on the narration made by the deceased Geeta Devi. To that extent, the evidence led by the hostile witness Ram Abhilakh Dubey (P.W.-10), the scribe of the F.I.R. is also relevant. He first stated, he prepared the Written Report on facts disclosed by the brother of the deceased Geeta Devi. He later tried to improve the statement and claimed, he prepared the Written Report on the disclosure made by Geeta Devi. Thus, it remains unproven 10 CRLA No. 3174 of 1984 who made the disclosure to Ram Abhilakh Dubey (P.W.-10).

34. At the same time, immediately after that, on being queried by the Court, the said witness further stated that the deceased Geeta Devi had told him that her father-in-law, mother-in-law and husband had set her ablaze. Thus, it may neither be inferred that the F.I.R. was lodged by or at the instance of the deceased Geeta Devi or by Manohar Lal (P.W.-1). Rather, it appears to be an act performed by the scribe Ram Abhilakh Dubey (P.W.-10), who had no knowledge of how the occurrence had been caused.

35. In such circumstance, we find, once the cognizable offence had been reported to the police by means of the F.I.R. lodged, the exact nature of the occurrence remained to be investigated. The evidence that came to light in the course of investigation and which may be firmly proved beyond reasonable doubt at the trial, may not be disbelieved, solely for reason of any doubt cited with respect to the exact nature of the occurrence, by relying solely on the F.I.R. narration.

36. Even then, there is not a singular version of the scribe-Ram Abhilakh Dubey (P.W.-10), either as to who divulged the information to him that led to the preparation of the Written Report or even what exact information was furnished to him. To doubt and discard the prosecution story in such facts, would be dangerous. An accused who may be in a position to influence the disclosure about the occurrence (made in the F.I.R.), and who may therefore offer a false version of that exact occurrence, may always escape the clutches of law and therefore justice, by that singular act of undue influence exercised either on the first informant or the scribe, at the time of the preparation of the F.I.R. In matters of domestic violence or occurrences such as this, that may offer a premium to the accused rather than aid the cause of justice. Here, we may also note, during his evidence Ram Abhilakh Dubey (P.W.-10) first claimed to be a public worker. Then during his cross-examination, he further admitted that the accused Lalji and Horilal were members of a particular political party of which he was a leader. That itself is enough to dispel any doubt that may otherwise be entertained on the strength of the submissions advanced by learned Senior Counsel for the appellant, that 11 CRLA No. 3174 of 1984 the F.I.R. version does not corroborate the substantive evidence. Thus, the F.I.R. narration may never be read or equated to a Dying Declaration of the deceased Geeta Devi.

37. Coming to the Dying Declaration recorded by Sri N.H. Zaidi (P.W.- 4), the then Additional City Magistrate, Varanasi, we have purposely extracted the same in extenso, to establish that not only that statement was recorded in the presence of Dr. A.K. Rastogi (P.W.-6) but that it was recorded upon his due certification that the declarant remained in a fit state of mind throughout her statement being recorded. The exact words used by Dr. A.K. Rastogi (P.W.-6) while certifying that fact have already been extracted above. They admit of no doubt.

38. As to the contents of the Dying Declaration, Sri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, categorically proved that he had recorded the statement in the words of the declarant. He further established that there was no undue influence on the declarant and that she made that declaration of her own free will. No doubt has emerged either during cross-examination of Dr. A.K. Rastogi (P.W.-6) or Sri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, as may allow us to entertain any reasonable doubt either to the truthfulness or completeness or reliability of the Dying Declaration. No element of tutoring may ever be alleged in such circumstances - where the person recording the statement is a responsible officer of the State Government, here, the Additional City Magistrate. He also clearly proved that no other person was present at the time of recording of the statement of the declarant, except the doctor.

39. It requires no emphasis that a Dying Declaration may be sufficient substantive evidence that may lead to conviction. To the extent the same has been found free from reasonable doubt, we have no reason or hesitation in relying on the same for the purpose of reaching the conclusion that it naturally leads to.

40. In Khushal Rao Vs. State of Bombay, 1957 SCC Online SC 20, the Supreme Court considered the evidentiary value of a Dying Declaration. It also considered the test to be applied by Courts while reading a Dying Declaration, to convict the accused. In that the Supreme Court noted its 12 CRLA No. 3174 of 1984 approval to a Full Bench decision of the Madras High Court in Re Guruswami Tevar & Ors., 1939 SCC Online Mad 411. Thereafter, it observed as below: "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination."

41. Then, in K. Ramachandra Reddy & Anr. Vs. The Public Prosecutor, (1976) 3 SCC 618, the Supreme Court made the following pertinent observation as to the reliability of a Dying Declaration - where the declarant may not have had "clear opportunity to observe and identify his assailants" and/or if the Court is not satisfied that the declarant "was making the statement without influence or rancour": "While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the court has to be on guard against the statement of the deceased 13 CRLA No. 3174 of 1984 being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration."

42. Next, in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710, the Supreme Court has also observed as below: "3. 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 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, has always to 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."

43. Thereafter, in P. Mani Vs. State of Tamil Nadu, (2006) 3 SCC 161, the Supreme Court observed as below: "14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical 14 CRLA No. 3174 of 1984 and mental condition of the deceased is one of them. In this case the circumstances which have been brought on record clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Penal Code, the presumption in terms of Section 113-A of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused."

44. In J. Ramulu Vs. State of Andhra Pradesh, (2009) 16 SCC 432, the principle laid down by the Supreme Court in P. Mani (supra) was reiterated. Thereafter, in Puran Chand Vs. State of Haryana, (2010) 6 SCC 566, that Court has observed as below: "15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.

18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused."

45. Submission advanced by learned Senior Counsel on the strength of Section 164 Cr.P.C. has to be noted to be rejected. It has no inherent merit as may warrant any further consideration in view of the discussion already made.

46. We also find, full compliance of Section 313 Cr.P.C. has been made. Not only the fact of the Dying Declaration recorded against the appellant 15 CRLA No. 3174 of 1984 was disclosed by means of Question Nos. 4 and 7 but in specific terms the accused was confronted with the contents of the Dying Declaration - by way of Question No. 14. Then, his answer responses to Question Nos. 7 and 14 clearly indicate that the accused had read and understood not only those questions but also the contents of the Dying Declaration as in his reply he adverted to the same and stated that the deceased had set herself ablaze, indicating a suicidal occurrence.

47. To that extent, the rules of natural justice enshrined under Section 313 Cr.P.C. have been substantially fulfilled, no other or further discussion is necessary. The evidence of defence has been rightly disbelieved by the learned court below. To the extent, the prosecution has successfully proven the charge, the defence evidence indicating that the deceased had told the defence witness that she had attempted suicide, is of no relevance.

48. There is no merit in the appeal. Thus, the conviction of the present appellant is sustained.

49. Last, as to sentencing, it has been submitted by learned Senior Counsel for the appellant that the appellant-Lalji is about 65 years of age. He had suffered paralytic stroke in the year 2020. He has yet not fully recovered from the same. Therefore, some latitude may be granted. Responding to that, learned A.G.A. would submit, at present, the law may not allow for any concession to be granted to such an accused, by Courts. On query, he would however fairly state, if the appellant Lalji were to apply for remission, his case/mercy petition for remission/release may be considered sympathetically by the State Government, in accordance with the governing policy of the State Government considering his actual health condition.

50. Accordingly, the appeal is dismissed. Appellant Lalji is on bail. He is directed to surrender forthwith before the trial court to serve the life imprisonment. Failing that, the learned court below is directed to get him arrested and sent to jail to serve the remaining sentence.

51. We however further observe, subject to the appellant Lalji surrendering before the trial Court within a period of four weeks from today, his bail bonds and sureties shall stand discharged and his 16 CRLA No. 3174 of 1984 claim/mercy petition for remission for reason of ill-health may be considered on its own merit, strictly in accordance with the governing policy of the State Government, necessarily within three months from the date of surrender. The order of conviction offered by the learned trial Court is thus maintained. Pending application(s), if any, stand disposed of.

52. A copy of this judgment be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record. September 11, 2025 Prakhar (Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.) PRAKHAR SRIVASTAVA High Court of Judicature at Allahabad

Dubey (P.W.-10). The first informant is described as Manohar Lal (P.W.- 1). It is undisputed that Ram Abhilakh Dubey (P.W.-10) is not a member of the family of either party. He described himself as public worker. During his cross-examination, it came out that he was a member of a political party. In such circumstances, it is strange, the F.I.R. offering the first person account of Geeta Devi (deceased) came to be submitted by Manohar Lal (P.W.-1) who is the maternal grand-father of Geeta Devi (deceased), on the strength of writing of Ram Abhilakh Dubey (P.W.-10).

5. The Written Report is Ex.Ka-14 at the trial while the F.I.R. is Ex.Ka-8 at the trial.

6. On such F.I.R. being registered, on 19.09.1997, the Dying Declaration of the deceased was recorded by Shri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, upon due certification made by Dr. A.K. Rastogi (P.W.-6) that the declarant was conscious and in a fit state of mind at that time as also during her statement being recorded. Since submissions have been advanced on the strength of that Dying Declaration, we deem it appropriate to extract the same, in entirety. "This is to certify that Geeta w/o Lalji is and remained mentally fit during the recording of dying declaration. ्शीमती गीता देवी पत्नी लालजी पता देविरयावीर थाना भेलुपुर ने बयान िकया िक मेरे आदमी लालजी ने मुझे 6 बजे सुबह पकड िलया और मेरे ससुर हरी ने मेरे कपड़ों मे िदया सलाई से जलाकर आग लगा दी एक पावजेब हरी मेरे ससुर का मेरे बाबूजी के पास है उसी के िलये मेरे पित ने कल बहुत मारा था और यह बात मैने अपनी मौसी से बताया था और इस बात से नाराज होकर मेरे ससुर ने मुझे जलाया और मेरे पित ने मुझे पकड़ िलया। जब मैं जलने लगी तब मुहल्ले की बहुत सी औरतें और मदर् आ गये मैं िकसी का नाम नही जानती। जब मैं जलने लगी तब मै िचल्लाई थी। मेरे पित और मेरे ससुर और मोहल्ले के लोग मुझको अस्पताल ले आये। मुझे और कु छ नही कहना हैं यह बयान मैं 3 CRLA No. 3174 of 1984 होश हवास में दे रही हूँ। R.T.I. of Geeta Devi Attested S.D. (Dr. A.K. Rastogi) E.M.O., S.S.P.G. Hospital, Varanasi I was present during the recording of dying declaration." It may be noted that the certification made by Dr. A.K. Rastogi (P.W.-6) is Ex.Ka-6 at the trial while the statement recorded by Shri N.H. Zaidi (P.W.-4) the then Additional City Magistrate, Varanasi, is Ex.Ka-1 at the trial.

7. Also, on 19.09.1977, the Investigation Officer Sub-Inspector S.K. Malik (P.W.-9) recovered a piece of burnt saree worn by the deceased, from the place of occurrence. It is Ex.Ka-12 at the trial. During treatment, Geeta Devi died on 23.09.1977. Inquest Report was prepared on

23.09.1977 by Sub-Inspector Jagjeevan Singh (P.W.-5). It is Ex.Ka-2 at the trial.

8. Next, on 24.09.1977, at 12:30 P.M., Dr. V.P. Subramanium (P.W.-7) conducted the autopsy examination on the dead body of the deceased. Autopsy Report is Ex.Ka-7 at the trial. The doctor opined, death was caused by burn injuries.

9. Upon conclusion of the investigation, Investigation Officer Sub- Inspector S.K. Malik (P.W.-9), submitted the charge-sheet.

10. Upon the case being committed for trial to the Court of Sessions, following charge came to be framed against the appellant: "That you, in furtherance of your common intention to commit murder of Smt. Geeta, wife of Lalji, you committed murder of Smt. Geeta by throwing kerosene oil over her body and putting fire to her at about 7 a.m. on 19.9.1977 in the house of Horilal situate in Mohalla Devariyabir, P.S. Bhelupur, Dist. Varanasi and there by you stand charged for the offence punishable under Section 302 read with section 34, I.P.C.and within my cognizance."

11. At the trial, besides relying on the above documentary evidence, the prosecution led oral evidence through ten witnesses. In that, they first examined Manohar Lal (P.W.-1), maternal grand-father of the deceased Geeta Devi. During his examination-in-chief, he proved - because the Geeta Devi (deceased) had left her 'payal' with her father, her in-laws 4 CRLA No. 3174 of 1984 were angry with her and and for that reason, they used to assault her. Then, he proved, he heard about the occurrence that Geeta Devi had received burn injuries, at her marital home. He saw her being transported to the hospital, in a rickshaw. He along with his daughter accompanied the injured Geeta Devi, to the hospital. He had heard that the deceased told her mother that she had been set ablaze by her father-in-law, her mother-in-law and husband. He denied having made any report to the police about the occurrence. He denied having affixed his thumb impression to the Written Report. He denied having made statement to the scribe Ram Abhilakh Dubey (P.W.-10) that the deceased had told him that she had set herself ablaze. At this stage, he was declared hostile.

12. Next, Smt. Mantuta, wife of Buddhiram and a neighbour of the accused persons, was examined as P.W.-2. She proved, she used to live nearby the matrimonial home of the deceased. She learnt that the deceased had received burn injuries at her matrimonial home. She saw that the deceased was being carried to the hospital by her in-laws. When asked about the occurrence, in-laws of Geeta Devi told her nothing. She denied having visited the injured Geeta Devi. At this stage, she was declared hostile.

13. Then, Smt. Ramadevi, wife of Vimal Prasad and mother of Geeta Devi (deceased) was examined as P.W.-3. She proved - before the occurrence, her husband had borrowed Rs. 800/- from Horilal, father-in- law of the deceased Geeta Devi. While Rs. 400/- had been repaid to Horilal, Rs. 400/- were outstanding. Aggrieved, Horilal used to visit the shop of her husband and hurl expletives. For that reason only, the said Horilal and the present appellant Lalji regularly assaulted the deceased. In that circumstance, the deceased had left her valuable 'payal' with her father. That had angered the accused persons, even more. They used to assault the deceased and not serve her meals, for days. Some times, they used to oust her from the house. Soon after the occurrence, she had seen the accused persons take the injured Geeta Devi to the hospital, on a rickshaw. That occurrence was seen by her younger daughter who wanted the rickshaw to stop but nobody listened. She went behind the rickshaw up to the hospital near Kabir Chauraha. After returning, she informed the witness about the same. 5 CRLA No. 3174 of 1984

14. Thereafter, the said witness proved - by the time she reached the hospital, the Additional City Magistrate had already recorded the statement of the injured Geeta Devi. Thereafter, she narrated that the injured Geeta Devi told her that she had been set ablaze by her father-in- law Horilal while her husband i.e. present appellant Lalji was holding her by her hand while her mother-in-law Smt. Sundar Devi was holding her by her legs. She further proved, during the cremation of the dead body of the deceased Geeta Devi, appellants were not present.

15. Next, Shri N.H. Zaidi, the then Additional City Magistrate, Varanasi was examined as P.W.-4. He proved, he recorded the Dying Declaration of the deceased, at the hospital, in the presence of Dr. A.K. Rastogi (P.W.-6). He also proved, the thumb impression of the declarant was affixed on the statement.

16. Then, Sub-Inspector Jagjeevan Singh was examined as P.W.-5. He proved the preparation of the Inquest Report and transportation of the dead body of the deceased Geeta Devi.

17. Next, Dr. A.K. Rastogi was examined as P.W.-6. He proved, he had certified that the declarant Geeta Devi was in a fit state of mind at the time of her Dying Declaration, recorded at 3:30 P.M., on 19.09.1977. He proved that Dying Declaration. It was marked as Ex.Ka-1 at the trial.

18. Next, Dr. V.P. Subramanium was examined as P.W.-7. He proved, the autopsy examination was conducted on the dead body of the deceased Geeta Devi, on 24.09.1977.

19. Next, Sub-Inspector Radhey Muni Yadav was examined as P.W.-8. He proved the registration of the F.I.R at 09:05 A.M. on 19.09.1977 and the relevant G.D. entries.

20. Thereafter, Investigation Officer Sub-Inspector S.K. Malik was examined as P.W.-9. He proved the investigation.

21. Last, the scribe Ram Abhilakh Dubey was examined as P.W.-10. He proved, he was public worker. He proved his handwriting on the Written Report. He also proved, he had written the names of Nand Lal and Lalli below the Written Report. He proved, he had written the words - " इन सब बातों 6 CRLA No. 3174 of 1984 से उब कर आग लगा िलया जो अस्पताल में भतर् हूँ", at the relevant time. He further proved, he could not identify the thumb impression affixed to that Written Report. Thereafter, he proved that (unnamed) brother of the deceased had told him that his sister had set herself ablaze. That person had asked the witness to accompany him to the hospital at Kabir Chauraha. Last, he proved, he wrote the Written Report on the instruction of Geeta Devi (deceased). To a question by the court, he stated, the deceased Geeta Devi had told him that her father-in-law, mother-in-law, husband and brother- in-law ('dewar'), had set her ablaze. On being shown the Written Report, he stated, he had not written in that report that the occurrence had been caused by the father-in-law, mother-in-law and her husband. At that stage, he was declared hostile.

22. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. Relevant to the submissions that had been advanced, question nos. 4, 7 & 14 together with their answer responses as furnished by the sole surviving appellant Lalji are as below: "्ऺश्न ४ - अिभयोजन का साष्य है िक १६-६-७७ को सुबह ७ को गीता देवी। मृतक। को अिभयु्व लालजी ने पकड़ िलया और लालजी के िपता मुलिजम होरीलाल ने गीता देवी के कपड़ों में िदया सलाई से आग लगा िदया। और मुलिजमा सुन्दर ने मी गीता को जलाने में अन्य मुलिजमान की मदद की थी । इसके वावत आपको क्या कहना है? उ्तर - गलत है। ्ऺश्न-७ अिभयोजन का साष्य है िक गीता देवी को घायल अवस्था में कवीरचौरा अस्पताल में भतर् िकया गया जहाँ पर मिजस््िेट ्शी एल०एच० जैदी पी० डब्लू ४ ने गीता देवी का बयान डा० ए० के ० रस्तोगी से गीता देवी (मृतक) की हालत के बारे में ्ऺमाण प्ऴ ्ऺाप्त करके िलया जो ्ऺदशर् क १ है। इसके बावत आपको क्या कहना है? उ्तर- गीता देवी ने स्वयं आग लगाया। ्ऺश्न-१४ मृतका गीता देवी ने अपने Dying Declaration में आपके िवरू्ध बयान िदया है िक आपने पकड़ कर और आपके िपता ने आग लगाई आपका क्या कहना है? उ्तर- गीता देवी के उनके मायके वालों ने और राम अिभलाख दूबे ने हम लोगों को फं साने (अपठनीय) िजसमें उसने यह गलत बयान िदया।"

23. Thereafter, one Chhedi Lal was examined as D.W.-1. He tried to prove, Geeta Devi (deceased) had informed him that she had set herself ablaze. In such facts, it has been submitted, the prosecution story is wholly unreliable and ridden with reasonable doubts. In the first place, there is no reliable F.I.R. Second, for whatever it may be worth, the F.I.R. does not corroborate the prosecution story. It is not clear who the first 7 CRLA No. 3174 of 1984 informant is. While Written Report bears the signature of Manohar Lal (P.W.-1), who is maternal grand-father of the deceased Geeta Devi, the narrative of the Written Report is a first person account ostensibly of Geeta Devi (deceased). Manohar Lal (P.W.-1) and the scribe Ram Abhilakh Dubey (P.W.-10) were declared hostile. Thus, it is not known who lodged the F.I.R. At the same time, the F.I.R. contains the narrative that puts in doubt the Dying Declaration. In fact, it is a case of suicidal death.

24. With respect to Dying Declaration, it has been submitted, the same has been recorded not in accordance with law. There is no certification by the doctor that the declarant was conscious and in a fit state of mind, to make that statement. Second, the same was recorded under the influence of the parents of the deceased. To the extent it conflicts with the first version of the deceased as narrated in the F.I.R. and as supported by Ram Abhilakh Singh (P.W.-10) - that he had prepared the Written Report on the instruction of the brother of the deceased Geeta Devi, the Dying Declaration in question is not reliable.

25. Further submission has been advanced by learned Senior Counsel that at the stage of Dying Declaration being recorded, Geeta Devi was an accused. Since Section 164 Cr.P.C. was not complied, that statement was of no worth. Last, it has been submitted, Dying Declaration not specifically confronted to the appellant under Section 313 Cr.P.C., no reliance may ever be placed on such adverse circumstance.

26. On the other hand, learned A.G.A. would submit, as per the defence theory, there is no denial that the occurrence took place inside the house of present appellant, on the date and time disclosed by the prosecution. The occurrence took place on 19.09.1977 whereas Geeta Devi died on

23.09.1977 i.e. after four days. However, no cross version of the occurrence was ever brought forth by the defence. They only maintained that the occurrence was suicidal and not homicidal. Therefore, there is no doubt that the occurrence took place inside the house of the present appellant wherein Geeta Devi suffered extensive burn injuries, for which she was hospitalized. Later, she died during treatment.

27. Seen in that light, there is absolutely no doubt that a cognizable 8 CRLA No. 3174 of 1984 offence had taken place which required investigation. To the extent the F.I.R. correctly records that Geeta Devi had received extensive burn injuries on 19.09.1977 at her matrimonial home, that cognizable offence was disclosed. All other facts narrated in the F.I.R. remained matters of investigation. Upon investigation it was found that the F.I.R. story was not correct to the extent it narrated that the occurrence was suicidal. To the extent it is now revealed that the occurrence was homicidal, no benefit may be drawn by citing contradictions on the strength of the F.I.R. narration alone.

28. Then, it has been submitted, Manohar Lal (P.W.-1), the first informant, was declared hostile as was the scribe, Ram Abhilakh Dubey (P.W.-10). What then survives is the Dying Declaration. Merely because on the date of the Dying Declaration being recorded, the declarant was technically an accused, is of no relevance. The fact of her death being undisputed and her statement having been recorded in accordance with the provisions of Section 32 of the Indian Evidence Act, 1872 and the law governing the same, it acquired the status of a Dying Declaration, arising from the subsequent death of Geeta Devi. Relying on the certification of the Dr. A.K. Rastogi (P.W.-6) and the proof of statement rendered by the Sri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, it has been submitted, there is absolutely no doubt that the said statement is wholly reliable. Referring to the statement, it has been submitted, it admits of no doubt how the occurrence was caused.

29. Insofar as compliance of Section 313 Cr.P.C. is concerned, it has been submitted, wholesome compliance of that provision of law has been made as is clear from the bare perusal of Question numbers 4, 7 and 14 put to the present appellant, and the answers furnished by him thereto.

30. Having heard learned counsel for parties and having perused the record, in the first place, it is undisputed, rather admitted between the parties that Geeta Devi was the wife of the present appellant Lalji and was living with him at her matrimonial home. Second, the evidence led by the mother of the deceased Geeta Devi, namely, Rama Devi (P.W.-3) that prior to the occurrence also, the deceased Geeta Devi was suffering physical abuse/violence at her matrimonial home, remained undisputed. It 9 CRLA No. 3174 of 1984 is also undisputed that Rs.800/- had been lent to the father of the deceased by her father-in-law, namely, Horilal. In that, Rs.400/- were being claimed by Horilal. In that backdrop, Rama Devi (P.W.-3) further proved that the deceased had left her valuable 'Payal' with her father. Angered by that, Geeta Devi was assaulted and kept hungry for days. She was also confined in a room by the appellant. While that evidence of confinement offered to Geeta Devi and assault may not be by way of direct evidence, at the same time, the factual background to the occurrence narrated by the mother of the deceased, namely, Rama Devi, remained undisputed.

31. In such facts, we have given our anxious consideration to the first submission advanced by learned Senior Counsel for the appellant that the F.I.R. is wholly unreliable. It is true, the F.I.R. has not been lodged by Geeta Devi or by her mother Rama Devi but on the face of it by her grand-father Manohar Lal (P.W.-1), in the hand writing of Ram Abhilakh Dubey (P.W.-10). To the extent, the F.I.R. discloses commission of a cognizable offence on 19.09.1977, wherein Geeta Devi received extensive burn injuries at her matrimonial home, there is no doubt raised by the defence.

32. There is also no doubt to the further narration in the F.I.R. that immediately after the occurrence, the injured Geeta Devi was admitted to a hospital at Varanasi. To that extent, irrespective of the issue of who is the author of the F.I.R. and how he learnt of the facts, the F.I.R. could not and was not lodged by Geeta Devi, the deceased.

33. As to the further narration, there does remain a doubt insofar as the F.I.R. contains a first person account - ostensibly of Geeta Devi. Yet, even during the cross-examination of the Investigation Officer Sub- Inspector S.K. Malik, no doubt emerged as may allow the Court to infer existence of a possibility that the F.I.R. was actually registered on the narration made by the deceased Geeta Devi. To that extent, the evidence led by the hostile witness Ram Abhilakh Dubey (P.W.-10), the scribe of the F.I.R. is also relevant. He first stated, he prepared the Written Report on facts disclosed by the brother of the deceased Geeta Devi. He later tried to improve the statement and claimed, he prepared the Written Report on the disclosure made by Geeta Devi. Thus, it remains unproven 10 CRLA No. 3174 of 1984 who made the disclosure to Ram Abhilakh Dubey (P.W.-10).

34. At the same time, immediately after that, on being queried by the Court, the said witness further stated that the deceased Geeta Devi had told him that her father-in-law, mother-in-law and husband had set her ablaze. Thus, it may neither be inferred that the F.I.R. was lodged by or at the instance of the deceased Geeta Devi or by Manohar Lal (P.W.-1). Rather, it appears to be an act performed by the scribe Ram Abhilakh Dubey (P.W.-10), who had no knowledge of how the occurrence had been caused.

35. In such circumstance, we find, once the cognizable offence had been reported to the police by means of the F.I.R. lodged, the exact nature of the occurrence remained to be investigated. The evidence that came to light in the course of investigation and which may be firmly proved beyond reasonable doubt at the trial, may not be disbelieved, solely for reason of any doubt cited with respect to the exact nature of the occurrence, by relying solely on the F.I.R. narration.

36. Even then, there is not a singular version of the scribe-Ram Abhilakh Dubey (P.W.-10), either as to who divulged the information to him that led to the preparation of the Written Report or even what exact information was furnished to him. To doubt and discard the prosecution story in such facts, would be dangerous. An accused who may be in a position to influence the disclosure about the occurrence (made in the F.I.R.), and who may therefore offer a false version of that exact occurrence, may always escape the clutches of law and therefore justice, by that singular act of undue influence exercised either on the first informant or the scribe, at the time of the preparation of the F.I.R. In matters of domestic violence or occurrences such as this, that may offer a premium to the accused rather than aid the cause of justice. Here, we may also note, during his evidence Ram Abhilakh Dubey (P.W.-10) first claimed to be a public worker. Then during his cross-examination, he further admitted that the accused Lalji and Horilal were members of a particular political party of which he was a leader. That itself is enough to dispel any doubt that may otherwise be entertained on the strength of the submissions advanced by learned Senior Counsel for the appellant, that 11 CRLA No. 3174 of 1984 the F.I.R. version does not corroborate the substantive evidence. Thus, the F.I.R. narration may never be read or equated to a Dying Declaration of the deceased Geeta Devi.

37. Coming to the Dying Declaration recorded by Sri N.H. Zaidi (P.W.- 4), the then Additional City Magistrate, Varanasi, we have purposely extracted the same in extenso, to establish that not only that statement was recorded in the presence of Dr. A.K. Rastogi (P.W.-6) but that it was recorded upon his due certification that the declarant remained in a fit state of mind throughout her statement being recorded. The exact words used by Dr. A.K. Rastogi (P.W.-6) while certifying that fact have already been extracted above. They admit of no doubt.

38. As to the contents of the Dying Declaration, Sri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, categorically proved that he had recorded the statement in the words of the declarant. He further established that there was no undue influence on the declarant and that she made that declaration of her own free will. No doubt has emerged either during cross-examination of Dr. A.K. Rastogi (P.W.-6) or Sri N.H. Zaidi (P.W.-4), the then Additional City Magistrate, Varanasi, as may allow us to entertain any reasonable doubt either to the truthfulness or completeness or reliability of the Dying Declaration. No element of tutoring may ever be alleged in such circumstances - where the person recording the statement is a responsible officer of the State Government, here, the Additional City Magistrate. He also clearly proved that no other person was present at the time of recording of the statement of the declarant, except the doctor.

39. It requires no emphasis that a Dying Declaration may be sufficient substantive evidence that may lead to conviction. To the extent the same has been found free from reasonable doubt, we have no reason or hesitation in relying on the same for the purpose of reaching the conclusion that it naturally leads to.

40. In Khushal Rao Vs. State of Bombay, 1957 SCC Online SC 20, the Supreme Court considered the evidentiary value of a Dying Declaration. It also considered the test to be applied by Courts while reading a Dying Declaration, to convict the accused. In that the Supreme Court noted its 12 CRLA No. 3174 of 1984 approval to a Full Bench decision of the Madras High Court in Re Guruswami Tevar & Ors., 1939 SCC Online Mad 411. Thereafter, it observed as below: "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination."

41. Then, in K. Ramachandra Reddy & Anr. Vs. The Public Prosecutor, (1976) 3 SCC 618, the Supreme Court made the following pertinent observation as to the reliability of a Dying Declaration - where the declarant may not have had "clear opportunity to observe and identify his assailants" and/or if the Court is not satisfied that the declarant "was making the statement without influence or rancour": "While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the court has to be on guard against the statement of the deceased 13 CRLA No. 3174 of 1984 being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration."

42. Next, in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710, the Supreme Court has also observed as below: "3. 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 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, has always to 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."

43. Thereafter, in P. Mani Vs. State of Tamil Nadu, (2006) 3 SCC 161, the Supreme Court observed as below: "14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical 14 CRLA No. 3174 of 1984 and mental condition of the deceased is one of them. In this case the circumstances which have been brought on record clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Penal Code, the presumption in terms of Section 113-A of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused."

44. In J. Ramulu Vs. State of Andhra Pradesh, (2009) 16 SCC 432, the principle laid down by the Supreme Court in P. Mani (supra) was reiterated. Thereafter, in Puran Chand Vs. State of Haryana, (2010) 6 SCC 566, that Court has observed as below: "15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.

18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused."

45. Submission advanced by learned Senior Counsel on the strength of Section 164 Cr.P.C. has to be noted to be rejected. It has no inherent merit as may warrant any further consideration in view of the discussion already made.

46. We also find, full compliance of Section 313 Cr.P.C. has been made. Not only the fact of the Dying Declaration recorded against the appellant 15 CRLA No. 3174 of 1984 was disclosed by means of Question Nos. 4 and 7 but in specific terms the accused was confronted with the contents of the Dying Declaration - by way of Question No. 14. Then, his answer responses to Question Nos. 7 and 14 clearly indicate that the accused had read and understood not only those questions but also the contents of the Dying Declaration as in his reply he adverted to the same and stated that the deceased had set herself ablaze, indicating a suicidal occurrence.

47. To that extent, the rules of natural justice enshrined under Section 313 Cr.P.C. have been substantially fulfilled, no other or further discussion is necessary. The evidence of defence has been rightly disbelieved by the learned court below. To the extent, the prosecution has successfully proven the charge, the defence evidence indicating that the deceased had told the defence witness that she had attempted suicide, is of no relevance.

48. There is no merit in the appeal. Thus, the conviction of the present appellant is sustained.

49. Last, as to sentencing, it has been submitted by learned Senior Counsel for the appellant that the appellant-Lalji is about 65 years of age. He had suffered paralytic stroke in the year 2020. He has yet not fully recovered from the same. Therefore, some latitude may be granted. Responding to that, learned A.G.A. would submit, at present, the law may not allow for any concession to be granted to such an accused, by Courts. On query, he would however fairly state, if the appellant Lalji were to apply for remission, his case/mercy petition for remission/release may be considered sympathetically by the State Government, in accordance with the governing policy of the State Government considering his actual health condition.

50. Accordingly, the appeal is dismissed. Appellant Lalji is on bail. He is directed to surrender forthwith before the trial court to serve the life imprisonment. Failing that, the learned court below is directed to get him arrested and sent to jail to serve the remaining sentence.

51. We however further observe, subject to the appellant Lalji surrendering before the trial Court within a period of four weeks from today, his bail bonds and sureties shall stand discharged and his 16 CRLA No. 3174 of 1984 claim/mercy petition for remission for reason of ill-health may be considered on its own merit, strictly in accordance with the governing policy of the State Government, necessarily within three months from the date of surrender. The order of conviction offered by the learned trial Court is thus maintained. Pending application(s), if any, stand disposed of.

52. A copy of this judgment be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record. September 11, 2025 Prakhar (Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.) PRAKHAR SRIVASTAVA High Court of Judicature at Allahabad