Smt. Rajeshwari And Anr. vs State Of U.P.

A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1219 of 2019
Smt. Rajeshwari and Anr.
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Along with :
Criminal Appeal No. 1221 of 2019:  
Anuj Kumar
1.
Versus
State of U.P.
Criminal Appeal No. 1220 of 2019:  
Vipin and Anr.
2.
Versus
State of U.P.
Abhishek Mishra, Anil Kumar Dubey, Ashok
Kumar Tripathi, Dilip Kumar Yadav, Gunjan
Sharma, Harsh Dwivedi, Mahendra Pal
Singh Gaur, Pradeep Kumar Pal, Pulak
Ganguly, Suman Srivastava
Counsel for
:
Appellant(s)
Counsel for
: G.A.
Respondent(s)
Court No. - 29
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
1. The instant criminal appeals have been filed against the
th
judgement and order dated 30.11.2018 passed by the 6
Additional Sessions Judge, Budaun, in Sessions Trial No. 333

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CRLA No. - 1219 of 2019
of 2017 (State vs. Anuj Kumar and 4 others) by which the
appellants have been convicted and sentenced under Section
302 r/w 149 Cr.P.C. for life imprisonment along with fine of
Rs. 10,000/- and in case of default they had to undergo
further imprisonment of one month.
2. When Santosh had gained knowledge of the fact that his
daughter Priti, who had been married to Anuj for about 3
years had died, then he came down from his residence at
Sanjarpur Police Station - Ujhani, District - Budaun to the
matrimonial home of his daughter Priti in village Asrasi,
Police Station - Kadarchauk, District - Budaun and there he
discovered that on 4.1.2017 itself sometime in the evening at
around 4:00PM, Anuj, his son-in-law Rajeshwari, mother-in-
law of the daughter, Brajpal father-in-law of his daughter and
Vipin had collectively, by pouring kerosene oil over her burnt
her and that she had been taken to the hospital where her
treatment was being recorded. The FIR was lodged at around
23:45 hours. In the meantime, at around 4:48PM, on 4.1.2017,
the dying declaration of the deceased Priti was recorded.
Also, after Priti was burnt, she was taken to the District
Hospital at Budaun where she was given treatment.
3. On 5.1.2017 at around 2:45AM in the morning, she died.
Thereafter panchayatnama was conducted on 5.1.2017 itself
and thereafter the body was sent for post mortem which was
conducted on 5.1.2017 at 4:20am. The cause of death was
shock and extensive ante-mortem burn injuries.

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CRLA No. - 1219 of 2019
4. Upon the completion of the investigation, the Police report
was submitted before the Court and on 20.1.2018, charges
were framed against Anuj Kumar, Smt. Rajeshwari, Brajpal,
Vipin and Madan under Sections 498-A, 304-B IPC and
Section 3/4 of the Dowry Prohibition Act. An alternative
charge under Section 302/149 IPC was also framed. When the
charges were denied, trial commenced.  
5. P.W.-1 was the mother of the deceased. She had stated that
her daughter was never tortured for dowry and she had
never mentioned about it to her. She had also denied of
having any knowledge that kerosene oil had been poured
over her and she had been put on fire. She had, in fact,
sustained burn injuries when the stove on which she was
cooking had burst. She was declared hostile. In her cross-
examination, she had stated that the daughter was not in a
position to speak. She had stated that she did not recognize
the accused Vipin by face "
मैं विपिन को चेहरे से नहीं पहचानती हूँ। मैंने कभी
विपिन को घटना से पहले कभी नहीं देखा और न ही घटना के बाद देखा। मेरी लड़की प्रीति
"
ने कभी भी विपिन या उसके किसी अन्य साथी का नाम नहीं बताया।
6. P.W.-2 was the sister of the deceased and she had also
denied about the occurrence of the incident. She was also
declared hostile. She had, in fact, denied that the husband of
the deceased was indulging in gambling. She had also not
recognized either Madan or Vipin in the court. She had, in
fact, stated that she had never heard the names of two

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CRLA No. - 1219 of 2019
persons. The statement of P.W.-2 denying the fact that she
knew Vipin and Madan is being reproduced here as under:-
"
मैंने प्रीति के मुख से कभी मदन व विपिन का नाम नहीं सुना न मैंने उन्हें
कभी देखा और न मैं उन्हें आज अदालत में पहचान सकती हूँ आज मैंने ईश्वर
"
को साक्षी मानकर अदालत में सही बयान दिया है
7. P.W.-3 was the Mausi, Smt. Phoolmati. She had also denied
that the deceased had died because of burn injuries. She was
also declared hostile. 
8. P.W.-4 was a doctor. He had stated in his statement in chief
that on 5.1.2017 had done the post mortem and before she
had died had also treated the patient. 
9. P.W.-5 was the Naib Tehsildar. He had stated that the
patient was conscious at the time of getting her statement
recorded and had proved the dying declaration. He had
stated that the Investigating Officer had not taken any
statement of his during investigation. The patient was in a
very serious condition when he had reached and he did
know as to when she died after getting her statement
recorded. He had mentioned that it was not possible to take
the finger print/impression of the deceased due to burn.
10. P.W.-6 was constable Satish Chandra who had proven the
chick FIR. 
11. P.W.-7 was the doctor Rajeev Kumar Gupta who was
present before the dying declaration was recorded.

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CRLA No. - 1219 of 2019
12. P.W.-8 was Pramod Kumar Yadav, the Investigating Officer.
He had stated the manner in which the investigation was
done and had also stated that during the investigation, the
name of Madan had surfaced. He had also stated that none of
the prosecution witnesses had mentioned the name of
Madan. He has stated that it was correct to say that Vipin and
Madan were not family members of Anuj. In fact, Madan was
not even of the caste of Anuj and that he was not aware as to
whether Madan had taken any advantage of the entire affair.
The relevant portion of the statement of the Investigating
Officer is being reproduced here as under:-
"
यह कहना सही है कि विपिन व मदन अनुज में परिवारी नहीं है और मदन
अनुज की जाति का भी नहीं है मुझे नहीं पता कि मदन प्रत्यक्ष या अप्रत्यक्ष
रूप से किसी दहेज की रकम या सामान को लेकर लाभान्वि त होगा या
" 
नहीं।
13. P.W.-9 was the brother of the deceased. He was a young
child of 13 years. After determining whether he would be
able to give his statement, the same was recorded. He was
also declared hostile when he stated that no incident of the
kind which was reported had occurred.
14. P.W.-10 was the Ward Boy and had stated the manner in
which the admission had taken place and the treatment had
proceeded.
15. Thereafter, the statements of the accused under Section
313 Cr.P.C. were recorded. Most of the witnesses had stated
that the deceased had died on account of an accident and

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CRLA No. - 1219 of 2019
there was no demand for dowry and that the deceased had
not been killed. However, Vipin in his statement under
Section 313 Cr.P.C. had stated that he was not of the family
and also he had no hand in the entire incident. 
16. Similarly, Madan had also stated that he was also not of
the family and that he had nothing to do with the dowry or
with the death of the deceased. However, when on the
completion of the trial, the 8th Additional District Judge,
Budaun, on 30.11.2018 convicted the accused under Section
302/149 IPC  with life imprisonment along with a fine of Rs.
10,000/- on each of the accused and in default of payment of
fine, they had to further undergo one month's imprisonment,
the Appeals were filed.
17. Against the judgment and order dated 30.11.2018, the
appellant Anuj Kumar filed a Criminal Appeal No. 1221 of
2019, the appellants Smt. Rajeshwari and Brajpal, mother-in-
law and father-in-law respectively, filed Criminal Appeal
No.1219 of 2019 and the appellants Vipin and Madan filed
Criminal Appeal No. 1220 of 2019.
18. The Criminal Appeal No. 1221 of 2019 and the Criminal
Appeal No. 1219 of 2019 were argued by Sri  Mahendra Pal
Singh Gaur, Advocate, whereas Criminal Appeal No. 1220 of
2019 was argued by Sri Sunil Kumar, Advocate.
19. Learned counsel for the appellants argued that the case
was a brought up case and that the appellants were innocent.
Learned counsel for the appellants submitted that if the

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CRLA No. - 1219 of 2019
statement of the doctor, the statement of the Naib Tehsildar
and the dying declaration along with the bed-head tickets
and the papers relating to the treatment were seen, then it
became certain that the deceased was not in a position to
speak. In fact, learned counsel for the appellants submitted
that some of the pages of the bed-head ticket were made to
disappear so that the gravity of the illness of the patient
could not be deciphered. From the paper-book, the bed-head
ticket, Exhibit Ka-15, was shown to the Court. Learned
counsel for the appellants tried to show that after page 3,
page 4 was missing and that after page 5 came page 10 of the
bed-head ticket. He, therefore, submitted that the
prosecution had played a fraud by removing quite a few
pages which would have shown that the deceased was not in
a condition to even speak.
20. Learned counsel for the appellants further submitted
that even the hands of the deceased were burnt to such an
extent that she could not put her thumb impression of the
hands and, therefore, on the dying declaration, the thumb
impression of her foot was taken. Learned counsel for the
appellants stated that under law the person recording the
dying declaration himself had to state that the person was in
a fit condition to give the statement and, when the Naib
Tehsildar did not say so, the prosecution case became
doubtful.

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CRLA No. - 1219 of 2019
21. Thereafter, he submitted that there was no smell of
kerosene oil and that the smell of kerosene oil was also not
mentioned in the post-mortem report. Still further, learned
counsel for the appellants submitted that if the statements of
the prosecution witnesses are seen, then it becomes certain
that all the witnesses of fact had turned hostile and they had
categorically stated that they had never alleged that the
deceased had died because she had been burnt to death. In
fact, they had stated that throughout it was the case of the
prosecution that the in-laws loved the deceased a lot and that
she had died because of an accident. They had also stated
that they did not know Madan and Vipin.
22. Lastly, learned counsel for the appellants submitted that
if the documents on the basis of which the charges were
framed by the Court are seen, then it becomes certain that
there was no description of Vipin and Madan given in the
charges. Absolutely no details of their parentage etc were
given. Since learned counsel for the appellants depended
heavily upon the charges framed by the Sessions Judge,
Badaun , on 20th January, 2018, the entire page is being
reproduced hereunder.:

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CRLA No. - 1219 of 2019

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CRLA No. - 1219 of 2019
23. Learned counsel for the appellants stated that the
accused Vipin and Madan were such persons who were not
known to the informant. In fact, the name of Madan was not
even to be found in the FIR. Though the names of Madan and
Vipin were mentioned in the dying declaration, the accused
Madan and Vipin were never identified either by way of a
test identification parade or by any of the prosecution
witnesses in Court. He submitted that when all the
prosecution witnesses of fact had turned hostile in Court,
then, no question arose for them to recognize Madan and
Vipin in the dark also. However, since their identity had to be
fixed by the court,  the cross-examination of the prosecution
witnesses were done and in the court they had denied having
recognised them. In the statements under Section 313 Cr.P.C.
also, Vipin and Madan both had said that they were not
family members and had been roped in for no reason
whatsoever.
24. Learned counsel for the appellants also relied upon a
judgment of the Supreme Court reported in AIR 2025 SC
2666 (Tukesh Singh & Ors. v. State of Chhattisgarh)  and
submitted that in a case where there are eyewitnesses, there
could be two situations: one where the eyewitnesses had
never seen the accused before the incident and the other
where the eyewitnesses had known the accused from before
and were recognizing the accused at the time of incident. If
in the event the eyewitnesses were not knowing the accused
from before, then the eyewitnesses must identify the accused
sitting in the dock as they had seen them while they were

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CRLA No. - 1219 of 2019
committing the crime or they were suspecting that they had
committed the crime. If the prosecution witnesses were not
knowing the accused from before, then, in the normal course
of events, a test identification parade also ought  to have
been conducted. However, if that is not held and the evidence
of the eyewitnesses was recorded after a passage of some
time, then definitely the identification becomes vulnerable
and also the identification in Court becomes of utmost
importance and it has to be seen as to in what manner the
identification was done in the dock.
25. In the instant case, learned counsel for the appellants
relied heavily upon paragraph No. 21 of the judgment
reported in AIR 2025 SC 2666 (Tukesh Singh & Ors. v. State
of Chhattisgarh) , to state that none of the prosecution
witnesses who were eyewitnesses ever knew as to who were
Madan and Vipin. He, therefore, submitted that the
appellants Madan and Vipin could not have been tried and
punished when their identities themselves were not fixed.
Since learned counsel for the appellants heavily relied upon
paragraph No. 21 of the aforesaid judgment, the same is
being reproduced hereunder.
“21. In a case where there are eyewitnesses, one
situation can be that the eyewitness knew the
accused before the incident. The eyewitnesses must
identify the accused sitting in the dock as the same
accused whom they had seen committing the crime.
Another situation can be that the eyewitness did not
know the accused before the incident. In the normal

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CRLA No. - 1219 of 2019
course, in case of the second situation, it is
necessary to hold a Test Identification Parade. If it
is not held and if the evidence of the eyewitness is
recorded after a few years, the identification of such
an accused by the eyewitness in the Court becomes
vulnerable. Identification of the accused sitting in
the Court by the eyewitness is of utmost
importance. For example, if an eyewitness states in
his deposition that “he had seen A, B and C killing X
and he knew A, B and C”. Such a statement in the
examination-in-chief is not sufficient to link the
same to the accused. The eyewitness must identify
the accused A, B and C in the Court. Unless this is
done, the prosecution cannot establish that the
accused are the same persons who are named by
the eyewitness in his deposition. If an eyewitness
states that “he had seen one accused assaulting the
deceased with a sword, another accused assaulting
the deceased with a stick and another accused
holding the deceased to enable other accused to
assault the deceased.”
In such a case, the eyewitness must identify the
accused in the open Court who, according to him,
had assaulted the accused with a stick, who had
assaulted the deceased with a sword and who was
holding the deceased. Unless the eyewitnesses
identify the accused present in the Court, it cannot
be said that, based on the testimony of the
eyewitnesses, the guilt of the accused has been
proved.”
26. Learned A.G.A., Sri Amit Sinha, vehemently opposed the
AIR
appeals and submitted that, in view of the judgment in
1958 SC 22 (Khushal Rao v. State of Bombay)
, a dying

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CRLA No. - 1219 of 2019
declaration had to be given a lot of sanctity. In the instant
case, the statement of the doctor that the patient was in a fit
condition to give her statement could not be disbelieved.
Also, the statement of the Naib Tehsildar stating as to how he
had recorded the statement of the deceased could not be
disbelieved. Since the paragraph nos. 16 and 17  of the
judgment are being relied upon, they are being reproduced
here as under:-
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

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CRLA No. - 1219 of 2019
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. But once, the
court has come to the conclusion that the dying
declaration was the truthful version as to the
circumstances of the death and the assailants
of the victim, there is no question of further
corroboration. If, on the other hand, the court,
after examining the dying declaration in all its
aspects, and testing its veracity, has come to
the conclusion that it is not reliable by itself,
and that it suffers from an infirmity, then,
without corroboration it cannot form the basis
of a conviction. Thus, the necessity for
corroboration arises not from any inherent
weakness of a dying declaration as a piece of
evidence, as held in some of the reported
cases, but from the fact that the court, in a
given case, has come to the conclusion that

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CRLA No. - 1219 of 2019
that particular dying declaration was not free
from the infirmities referred to above or from
such other infirmities as may be disclosed in
evidence in that case.
27. Having heard learned counsel for the appellants Sri
Mahendra Pal Singh Gaur, Sri Sunil Kumar and learned
A.G.A. Sri Amit Sinha for the State, we find that the deceased
Priti had died due to burn injuries. Thereafter, she was
rushed to the hospital by the father of the deceased who had
come to the place of incident upon gaining knowledge that
his daughter had been burnt. Thereafter, we find that a
definite dying declaration was also got recorded.
28. We are of the view that the dying declaration, despite
the fact that all the prosecution witnesses of fact had turned
hostile, cannot be disbelieved in toto. There are
circumstances in which prosecution witnesses are won over,
either emotionally or by material benefits. In the present
case winning over the prosecution witnesses cannot be ruled
out, particularly in view of the fact that the dying declaration
was piously recorded by the Tehsildar after the doctor had
declared the injured fit enough to give the statement.
29. However, we find that, vis-a-vis Vipin and Madan, there
was no identification done. Vipin was named in the FIR and
both Vipin and Madan were named in the dying declaration.
However, none of the prosecution witnesses knew Madan
and Vipin from before. Which Madan and Vipin of the
country having crores of people were involved in the
incident had to be marked out and trial had to be done vis-a-

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CRLA No. - 1219 of 2019
vis the marked out accused who had been conclusively
identified as Madan and Vipin.
30. In the instant case, we find that Vipin had simply been
mentioned in the FIR and the names of both Vipin and
Madan had been mentioned by the deceased in the dying
declaration. Thereafter, no efforts were made to establish the
identity of Madan and Vipin. Even in Court, none of the
prosecution witnesses who were cross-examined, after
having been declared hostile, recognised Madan and Vipin.
Further, before the trial commenced, no test identification
parade was conducted. Madan and Vipin were not known
from before either to the first informant or to any of the
prosecution witnesses of fact. We also find that in the charges
which were framed only thumb impressions were taken that
could not have identified them  to be the very Madan and
Vipin about whom the deceased had mentioned or pointed
out.
31. In view of the lack of identification, we are, thus, of the
view that Vipin and Madan cannot be held guilty in the
instant case. However, since Smt. Rajeshwari, Brajpal and
Anuj Kumar were known to the first informant and also to
the other prosecution witnesses and definitely the three of
them were known to the deceased from before the dying
declaration was recorded, we are, therefore, of the view that
their identities were definitely fixed and, since they had been
named by a person who knew that she was going to die they

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CRLA No. - 1219 of 2019
were definitely guilty of the offences for which they were
charged.
32. Under the circumstances, the judgment and order,
insofar as it holds Rajeshwari, Brajpal and Anush Kumar
guilty, calls for no interference and the appeal vis-a-vis
Rajeshwari, Brajpal and Anuj Kumar are dismissed. The
Appeal No. 1219 of 2019 and the Appeal No. 1221 of 2019 are
dismissed.
33. Since the identities of Madan and Vipin, had not been
fixed, they are acquitted of the charges levelled against them.
The appeal vis-a-vis Madan and Vipin is allowed. The
judgment and order dated  30.11.2018 passed by the 8th
Additional District Judge, Budaun, is set aside vis-a-vis Madan
and Vipin.  The Appeal No. 1220 of 2019 is allowed. If the
appellants Madan and Vipin are not wanted in any other
case, they may be released forthwith.
(Jai Krishna Upadhyay,J.)    (Siddhartha Varma,J.)
October 16, 2026
PK
Digitally signed by :-
PRAVEEN KUMAR
High Court of Judicature at Allahabad