Mohammad Anees vs State Of U.P

A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1789 of 2016
Mohammad Anees …..Appellant(s)
Versus
State of U.P. …..Respondents(s)
Counsel for Appellant(s) : Mohammad Mustafa Khan, Furkan
Khan
Counsel for Respondent(s) : Govt. Advocate
Reserved on 27.02.2026
Delivered on 22.05.2026
Court No. – 9
HON'BLE RAJESH SINGH CHAUHAN, J.
HON'BLE ABDHESH KUMAR CHAUDHARY, J.
(Per: Hon’ble Abdhesh Kumar Chaudhary, J.)
1. The present Criminal Appeal under Section 374 (2) of the Code
of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) has been filed
by the appellant/accused- Mohammad Anees, against the
judgment and order dated 06.10.2016, passed by the Learned
Additional Sessions Judge (F.T.C.), Court No. 36, Barabanki in
Sessions Trial No. 52 of 2013 ( State Vs. Mohd. Anees and
others ), arising out of Crime No. 293 of 2012, relating to Police
Station - Zaidpur, District – Barabanki, wherein he has been

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convicted and sentenced for the substantive offence under
Section 302 I.P.C. for life imprisonment, along with fine of Rs.
20,000/-, and, in default of payment of the fine, to undergo an
additional six months’ rigorous imprisonment.
CASE OF THE PROSECUTION
2. The case of the prosecution, as delineated by the learned Trial
Court in the impugned judgment, is briefly enumerated as herein
under:
2.1 The complainant, Mohd. Arif, son of Peer Muhammad, resident
of Tehsil and Police Station Fatehpur, District Barabanki,
submitted a written tahrir dated 30.8.2012 (Exhibit Ka-3) to the
Station House Officer, Police Station Zaidpur, District
Barabanki, stating that his younger sister (Smt. Shanno) had
been married to Mohd. Anees (Appellant), son of Mohd. Sadiq,
resident of Zaidpur, Mohalla- Chhota Imambara, Police Station-
Zaidpur, District Barabanki, in the year 2006.
2.2 Shortly after the marriage, the complainant's sister was subjected
to persistent harassment and cruelty by her husband and in-laws
on account of demands for dowry. Despite the complainant's
efforts to meet such demands to the extent possible and his
attempts to mediate for marital harmony, the harassment
progressively intensified. The complainant's sister, described as
a simple and well-mannered woman nurtured in traditional
values, steadfastly opposed the idea of divorce.
2.3 Ultimately, on 29.08.2012, the complainant's sister was
allegedly confined within her matrimonial home and set ablaze
by her in-laws, resulting in severe burn injuries. Neighbours,
upon discovering her in a critical condition, arranged for her
admission to the District Hospital, Barabanki, and informed the
complainant telephonically. Upon the family's arrival at the
hospital, no representatives from the in-laws' side were present.
Given the deteriorating condition of the victim, she was referred

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to the Civil Hospital, Lucknow, where she remained in a
precarious state.
2.4 The complainant, invoking these dire circumstances, implored
the authorities to register a First Information Report forthwith
and initiate stringent legal action against the entire family of the
appellant viz. , (1) Mohd. Anees, son of Mohd. Sadiq; (husband
of the deceased) (2) Mohd. Raees, son of Mohd. Sadiq; (brother-
in-law/devar) (3) Mohd. Latif, son of Mohd. Sadiq; (brother-in-
law) (4) Mohd. Shamim (husband of the sister-in-law); (5) Smt.
Husna, daughter of Mohd. Sadiq; (sister-in-law) and (6) Mohd.
Sadiq (father-in-law).
2.5 On the basis of the aforesaid written tahrir ( Exhibit Ka-3 ), a case
was duly registered as Crime No. 293 of 2012 under Sections
498-A and 307 of the Indian Penal Code, 1860 read with
Sections 3/4 of the Dowry Prohibition Act, 1961, at Police
Station Zaidpur, District Barabanki, on 30.08.2012 at 09:30
hours. The First Information Report ( Exhibit Ka-1 ) was
accordingly prepared, and an entry thereof was made in the
General Diary of the Police Station, a carbon copy whereof is
marked as ‘ Exhibit Ka-2 ’.
3. In the interregnum, on 29.08.2012, Dr. Sharoor Ali ( P.W.-5 ),
Emergency Medical Officer, Shyama Prasad Mukherjee (Civil)
Hospital, Lucknow issued a certificate attesting that the
injured, Majrooba Shanno, who had been admitted in a burnt
condition, was mentally sound and fit to re cord her statement.
Thereupon, her dying declaration ( Exhibit Ka-4 ) was recorded
by Shri Vinod Kumar ( P.W.-6 ), Additional City Magistrate-I,
Lucknow.
4. Upon receipt of information regarding the demise of the
deceased, Shanno, on 13.09.2012, Shri Sanjay Yadav, Executive
Magistrate/Naib Tehsildar - Sadar, Lucknow, proceeded to the
mortuary of the Civil Hospital, Lucknow, where he conducted

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the inquest/ Panchayatnama proceedings ( Exhibit Ka-7 ) in
respect of the deceased's body. He prepared the requisite challan
‘ lash ’ and other forms for post-mortem examination, affixed
seals on the body along with a sample seal, and entrusted the
sealed body, along with necessary documents, to the attending
Police personnel present on the spot.
5. On 13.09.2012, at 3.10 pm, Dr. Prabhunath, Medical Officer of
Shyama Prasad Mukherjee (Civil) Hospital, Lucknow, along
with his colleague, Dr. R.C. Gopal, examined the deceased and
conducted and prepared the post-mortem report (Exhibit Ka-6).
The following observations were recorded in the said post-
mortem report:
“External Examination - The deceased was approximately
30 years old, 154 cm tall, and of medium build. Her body
showed signs of postmortem stiffness throughout. Her eyes
were closed and her mouth was half-open.
Ante-Mortem Injuries - Superficial to deep burns (septic)
encompassing the entire body except the soles of both feet.
The burn wounds exhibited pus, slough, debris, and
granulation tissue. Upon dissection, multiple pus foci were
noted in both lungs, kidneys, spleen, and liver.
Internal Examination - The brain was congested; lungs
congested; peritoneal membrane congested; left cardiac
chamber full, right chamber empty; peritoneum and
peritoneal cavity congested; liver and gall bladder
congested; spleen congested; pancreas congested; both
kidneys congested; and the uterus empty.
The estimated time of death was 13.09.2012 at
approximately 02:30 hours, with the cause of death
attributed to cardio-respiratory failure consequent upon
septicaemia arising from the ante-mortem burn injuries,
which were opined to be sufficient in the ordinary course of
nature to cause death. ”

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6. The investigation was entrusted to Shri Narendra Kumar Singh,
Deputy Superintendent of Police, Sadar, Barabanki, who
recorded statements of material witnesses, prepared the Site plan
of the incident ( Exhibit Ka-5 ), and upon the culmination of the
investigative process, submitted Charge-sheets ( Exhibit Ka-8
and Exhibit Ka-9 ) against the accused persons.
PROCEEDINGS BEFORE THE TRIAL COURT
7. After filing of the charge-sheet by the Investigating Officer in
Crime No. 293 of 2012, registered at Police Station Zaidpur,
District Barabanki, against the accused persons, namely (i)
Mohammad Anees son of Mohammad Sadiq, (ii) Latif son of
Mohammad Sadiq, (iii) Mrs. Husna wife of Mohammad
Shamim, (iv) Sadiq Ali son of Jafar Beg, and (v) Mohammad
Raees son of Sadiq Ali, all residents of Mohalla Chhota
Imambara, Village and Police Station Zaidpur, District
Barabanki, alleging the commission of offences punishable
under Sections 498-A and 304-B of the Indian Penal Code, 1860,
and Sections 3/4 of the Dowry Prohibition Act, 1961, the learned
Chief Judicial Magistrate, Court No. 18, Barabanki, took
cognizance thereof and committed the case to the Court of
Sessions for Trial.
8. Two Sessions Trials, i.e. Sessions Trial No. 52 of 2013 and
Sessions Trial No. 378 of 2013 , arising out of the same incident
and involving similar evidence, were consolidated, with
Sessions Trial No. 52 of 2013 treated as the leading case. During
the pendency of the trial, accused Sadiq Ali, son of Jafar Beg
(father of the appellant), resident of Mohalla Chhota Imambara,
Town and Police Station Zaidpur, District Barabanki, expired,
whereupon the proceedings against him stood abated under
Section 394 of the Code of Criminal Procedure, 1973.
9. Consequently, the trial proceeded against the remaining accused,
namely, (i) Mohammad Anees, son of Mohammad Sadiq,

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(ii) Latif, son of Mohammad Sadiq, (iii) Smt. Husna, wife of
Mohammad Shamim, and (iv) Mohammad Raees son of Sadiq
Ali, all residents of Mohalla Chhota Imambara, Village and
Police Station Zaidpur, District Barabanki. On the basis of the
prima facie evidence available on record, charges were framed
against the aforesaid accused persons for offences punishable
under Sections 498-A, 304-B, and, alternatively, Section 302
read with Section 34 of the Indian Penal Code, 1860, as well as
Section 4 of the Dowry Prohibition Act, 1961. All the accused
denied the aforesaid charges, and pleaded not guilty, and
claimed Trial.
10. In order to substantiate its case, the prosecution examined the
following witnesses, the details whereof are as under:
P.W.-1 Jawahar Pal Head Constable
P.W.-2 Mohd. Arif Brother of the deceased
P.W.-3 Anisa Sister -in-law (Bhabhi) of
the deceased
P.W.-4 Mrs. Salma Bano Mother of the deceased
P.W.-5 Dr. Sharoor Ali, Formal witness, who issued
certification of fitness
P.W.-6 Vinod Kumar Formal witness/Additional
City Magistrate III Lucknow,
who recorded the dying
declaration
11. Apart from the oral testimonies tendered by the prosecution
witnesses, a series of documentary exhibits, duly marked and
proved as Exhibit Ka-1 to Exhibit Ka-9 , were been placed on
record to substantiate the case.
12. The statements of the accused persons were duly recorded under
Section 313 of the Code of Criminal Procedure, 1973. In their
statements, accused Mohammad Anees, Mohammad Latif, Smt.

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Husna Bano, and Mohammad Raees uniformly denied the
prosecution allegations, asserting that the narrative presented
was entirely false and that the First Information Report had been
lodged on concocted facts. They further contended that the dying
declaration was fabricated. Specifically, (i) Accused Mohammad
Anees averred that he was not present in home at the time of the
incident and that the deceased had secluded herself in a room
before immolating herself; (ii) Accused Smt. Husna Bano stated
that she resided separately with her family in a distinct locality
and was not present in the house of accused Mohammad Anees
during the incident; (iii) Accused Mohammad Latif averred that
he lived in a separate household from that of accused
Mohammad Anees, with an independent family unit and ration
card, and was not at the scene of the occurrence; and lastly
(iv) Accused Mohammad Raees claimed that he had been
domiciled in Village Anwari, under Police Station Kursi, District
Barabanki, prior to the marriage of accused Mohammad Anees
and was not present on the date of the incident.
13. In defence, oral evidence was adduced on behalf of the accused
by examining Manohar Lal as Defence Witness No.1
( D.W.-1 ); Sunny Kumar as D.W.-2; and Reshma , a ten-year-
old daughter of the deceased Shanno and accused Mohammad
Anees, as D.W.-3 . With regard to documentary evidence in
defence, photocopies of the ration card and identity card
pertaining to accused Mohammad Latif, extracted from List
A-112, along with photocopies of the ration card and electricity
bill in the name of accused Smt. Husna Bano, were tendered
and filed on record.
14. During the examination by the prosecution, the P.W.-1 , Head
Constable Jawahar Pal, a formal witness for the prosecution,
deposed that he had prepared the First Information Report
( Exhibit Ka-1 ) and the carbon copy of the General Diary entry
( Exhibit Ka-2 ) in his own handwriting and with his signature,

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based on the complaint lodged by the informant, Mohammad
Arif. In his cross-examination, no statement was elicited that
contradicted or falsified his chief examination or the documents
produced by him.
15. P.W.-2 Mohammad Arif, the brother and informant of the
deceased Shanno, and a material witness for the prosecution,
stated in his examination-in-chief that his sister Shanno was
married to the accused Mohammad Anees in 2006 and had
been living happily at her matrimonial home without any
issues. Two daughters were born out of the said wedlock. He
denied that the deceased had ever informed him of any dowry
demands or torture by her husband Anees, brother-in-law Latif,
sister-in-law Husna, or brother-in-law Raees. He recounted
receiving information via phone, about three and a half years
prior, that his sister had sustained burn injuries and had been
taken to the District Hospital, Barabanki, from where she was
referred to the Civil Hospital, Lucknow, where she ultimately
succumbed to her injuries. He admitted lodging the F.I.R.
( Exhibit Ka-3 ) under a misunderstanding and asserted that none
of the accused demanded dowry, tortured or burned the
deceased.
16. Upon the prosecution's application, he was declared hostile and
permitted to be cross-examined. In cross-examination by the
prosecution, he reiterated his affection for his nieces and concern
for their future but denied that this influenced his testimony. He
firmly negated any dowry demands, torture, or involvement of
the accused in the deceased's death, stating that the F.I.R. was
filed at the behest of others and that he signed it without reading
it on the second or third day after the deceased's admission. He
clarified that accused Raees resided in Anwari village, accused
Husna in Delhi with her husband, and accused Latif separately
from Anees. No statement in cross-examination supported the
prosecution case.

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17. P.W.-3 Anisa, the sister-in-law (Bhabhi) of the deceased and a
material witness for the prosecution, deposed in her
examination-in-chief that the deceased Shanno was married to
Anees in 2006 and lived happily at her in-laws' house without
complaints. She visited her parental home frequently but the
deceased never mentioned any dowry demands or torture by
her husband Mohammad Anees, brother-in-law Latif, sister-in-
law Husna, or brother-in-law Raees. She recounted the burn
incident, which occurred about three and a half years ago, after
which her husband Mohammad Arif proceeded to the District
Hospital, Barabanki, and the deceased was shifted to Lucknow,
where she died during treatment. She denied any dowry
demands, beatings, or burning by the accused. Consequently,
P.W.-3 was declared hostile on the prosecution's request and
subsequently cross-examined.
18. In cross-examination, she acknowledged her concern for the
deceased's two daughters, Zeba and Sahnoor, who live with their
aunt and visit her, but denied that this caused her to withhold the
truth. She categorically rejected suggestions of dowry-related
torture, burning by the accused, or any settlement influencing
her testimony. No statement in cross-examination advanced the
prosecution's narrative.
19. P.W.-4 Smt. Salma Bano, the mother of the deceased and a
material witness for the prosecution, stated in her examination-
in-chief that her daughter Shanno was married to Anees about
9-10 years ago and had lived a happy married life at her in-
laws', giving birth to two daughters without any complaints.
She denied that the deceased ever informed her of dowry
demands or harassment by her husband Anees, brother-in-law
Raees, sister-in-law Husna, brother-in-law Latif, or the
deceased father-in-law. About four years ago, she received
information of her daughter's burn injuries and visited the
hospitals in Barabanki and Lucknow, where she found her

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daughter severely burned and unable to speak. Her daughter
subsequently died during treatment. Consequently, she was
declared hostile upon the prosecution's application and was
subjected to cross-examination.
20. In cross-examination, she expressed fondness and concern for
her granddaughters, who visit her frequently, but denied that
this influenced her testimony. She refuted allegations of dowry-
related beatings, torture, or burning by the accused, or any
reconciliation prompting false evidence. She confirmed that,
after marriage, Husna and Raees lived separately, as did Latif.
While she admitting the deceased's burnt condition and death,
no statement supported the prosecution case.
21. P.W.-5 Dr. Sharoor Ali, Emergency Medical Officer at Shyama
Prasad Mukherjee (Civil) Hospital, Lucknow, and a formal
witness, deposed that on 29.08.2012, he examined the injured
Shanno (admitted with burns) and certified her to be of sound
mind and fit to give a statement. This certification enabled
A.C.M. Lucknow, Shri Vinod Kumar ( P.W.-6 ), to record her
dying declaration ( Exhibit Ka-4 ), which Dr. Ali proved
through his testimony. In cross-examination, no statement
contradicted his chief examination or the documents produced.
22. P.W.-6 Vinod Kumar, Additional Municipal Commissioner
(A.C.M.), Lucknow Municipal Corporation, and a formal
witness, stated that he recorded the dying declaration ( Exhibit
Ka-4 ) of the deceased Shanno, who had been admitted in a
burnt condition at Shyama Prasad Mukherjee (Civil) Hospital,
Lucknow. He proved the document through his testimony. In
cross-examination, no statement falsified his chief examination
or the exhibit produced.
23. The dying declaration recorded the deceased, Shanno (aged
about 30 years), resident of Nagar Panchayat Zaidpur, having
two daughters and husband Anees, stated that on the morning
of the incident, around 8:00 AM, her husband has beaten her

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severely, poured kerosene on her, and set her on fire, with the
entire household present. She attributed the act solely to her
husband, without alleging overt acts, instigation, or dowry-
related harassment by other accused.
24. In their statements recorded under Section 313 of the Code of
Criminal Procedure, 1973, the Appellant Mohd. Anees and the
co-accused categorically denied the prosecution allegations
during trial, asserting that the First Information Report was
fabricated and the deceased Shanno had committed suicide by
locking herself in a room and setting herself ablaze. The
appellant specifically pleaded an alibi , stating he was not present
at home during the incident. Similarly, co-accused Latif, Husna,
and Raees claimed separate residences and absence from the
scene, supported by documentary evidence.
25. These statements, though not substantive evidence, presented a
consistent defense narrative of suicide rather than homicide,
which was weighed against the prosecution's case, particularly
in light of the presumption under Section 113B of the Indian
Evidence Act, 1872 which arises only if dowry harassment is
unequivocally established.
26. In support of the defence during trial, testimonies of three
defence witnesses were adduced, namely, Manohar Lal
(D.W.-1), Sunny Kumar (D.W.-2), and Reshma (D.W.-3), which
formed the bedrock of the appellant's case, portraying the
incident as a tragic suicide rather than a deliberate act of murder.
27. D.W.-1 Manohar Lal, a sanitation worker employed by the
Nagar Panchayat, Zaidpur, deposed that on the day of the
incident, approximately four years prior, he and D.W.-2 were
cleaning a drain near the house of Mohd. Sadiq (father-in-law
of the deceased) around 8:00 AM when they heard screams.
Sadiq emerged, shouting that his daughter-in-law had locked
herself in a room and set herself on fire. The appellant Anees

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was not present at home. Along with neighbours, they broke
open the door and extracted the severely burned deceased, who
was subsequently rushed to Barabanki Hospital.
28. In cross-examination, D.W.-1 denied any inducement to give
false testimony and affirmed his presence, though he admitted
not being questioned by the police earlier. The trial Court
discounted this testimony for lack of corroboration with
D.W.-3's statement, which placed the appellant at home.
However, this reasoning is flawed. D.W.-1 is an independent
witness with no ace to grind against the prosecution or affinity
to the accused. His account aligns with the defense theory of
suicide, and the absence of police inquiry does not inherently
impeach his credibility, as neighbourhood witnesses often come
forward only during trial. Minor omission regarding the
appellant's presence does not vitiate the core narrative,
especially when weighed against the potential tutoring of the
dying declaration.
29. Similarly, D.W.-2 Sunny Kumar, also a sanitation worker since
2005, corroborated D.W.-1's testimony in toto . He reiterated
the sequence of events, hearing noise from Sadiq's house,
Sadiq's cry of suicide, breaking the door (locked from inside),
and the appellant's absence until after the extraction. In cross-
examination, he clarified that his duty assignment was oral, as
is common in such roles, and vehemently denied fabricating
evidence at the accused's behest.
30. The testimony of D.W.-3 Reshma, the then 10-year-old
daughter of the deceased and the appellant (aged about 4 at the
time of the incident), merits careful scrutiny under Section 118
of the Evidence Act, which deems child witnesses competent if
capable of rational answers. In her examination-in-chief, she
stated that her mother locked the door and set herself on fire
while she and her grandfather, Sadiq were sitting outside; the
appellant was absent, having gone to buy vegetables.

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Neighbours broke the door, and the appellant returned later to
rush the deceased to hospital.
31. During cross-examination, she revealed a prior marital
altercation in which the deceased had beaten the children,
leading to the appellant's intervention with a slap on the
deceased and his subsequent departure before the fire. The trial
Court seized upon this as proof of the appellant's presence and
assault, corroborating the dying declaration ( Exhibit Ka-4 ). A
child of tender age, testifying years after a traumatic event, may
exhibit minor inconsistencies without undermining the
substance. The cross-examination disclosed a domestic quarrel
but not homicidal intent; the slap and verbal abuse do not
inexorably lead to murder, and the deceased's act post-departure
supports suicide amid emotional distress. Resultant, D.W.-3's
overall narrative aligns with D.W.-1 and D.W.-2, casted doubt
on the prosecution's murder theory.
32. The defense also tendered documentary evidence, including
photocopies of ration cards, identity cards, and electricity bills
( Paper Nos. A-112/2 to A-112/6 ), establishing that co-accused
Latif and Husna resided separately from the appellant. This
undisputed material bolsters the alibis of the relatives and
negates any common intention under Section 34 I.P.C., further
weakening the dowry harassment narrative against the appellant,
as joint family dynamics were absent.
33. On the basis of the material produced during the trial, the Court
of Sessions held that the prosecution had failed to prove beyond
reasonable doubt the charges under Sections 498A, 304B, and
302 read with Section 34 of the Indian Penal Code, 1860, as well
as Section 4 of the Dowry Prohibition Act against accused,
namely, Latif s/o Mohd. Sadiq, Mrs. Husna w/o Mohd. Shamim,
Sadiq Ali s/o Jafar Beg, and Mohd. Raees s/o Sadiq Ali.
Therefore, all the above-named accused were acquitted of the

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said charges. However, the prosecution successfully proved its
case beyond reasonable doubt against the accused, Mohd. Anees
s/o Mohd. Sadiq, on the basis of the dying declaration ( Exhibit
Ka-4). Accordingly, he was convicted for life imprisonment,
along with fine of Rs. 20,000/-, and, in default of payment of the
fine, further six months’ rigorous imprisonment, under Section
302 of the Indian Penal Code, 1860, in Sessions Trial No. 52 of
2013 ( State Vs. Mohd. Anees and others ), arising out of Crime
No. 293 of 2012.
PROCEEDINGS BEFORE THIS COURT
34. Challenging the aforesaid impugned Judgment and order of
conviction and sentence dated 06.10.2016, the present appeal
being Criminal Appeal No. 1789 of 2016, was filed by the
appellant- Mohd. Anees. However, no State-appeal has been
filed against the acquittal of the accused, namely, Mohd. Raees
(brother-in-law/devar), Mohd. Latif (brother-in-law), Husna,
(sister-in-law), and Mohd. Sadiq (father-in-law).
35. It is evident to note that the bail/suspension of sentence
applications filed by the appellant were dismissed by this Court.
Consequently, the Appellant has remained in jail and as per the
Custody Certificate filed on record, the Appellant is incarcerated
for a period exceeding 13 years and 3 months.
36. That the hinge of the argument of the learned counsel for the
appellant-accused is that all the fact witnesses were declared
hostile, and although the dying declaration relied upon by the
Trial Court, is not reliable. The same has unnecessarily been
given prominence by the Trial Court to convict the Appellant.
According to him, the sole basis for conviction is the dying
declaration, which, he contends, has not been corroborated by
any other evidence and, as such, the same cannot be made a basis
for conviction of the Appellant.

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37. He further submitted that the ‘dying declaration’ is not
trustworthy, in as much as, no satisfaction has been recorded by
the doctor with regard to the mental status of the victim; the
doctor merely declared that the ‘patient was well oriented’, and
as such, according to the counsel, in the absence of any specific
certification by the doctor with regard to the “fit mental state” of
the victim/deceased, the dying declaration cannot constitute the
sole basis for conviction. He further submits that, since the
deceased had sustained approximately 90% burn injuries, the
mental status gains significance, as technically a person with
such severe burns could not be able to comprehend and give a
coherent statement.
38. In support of this proposition of law, the learned Counsel for
the appellant has relied upon the judgment of Paparambaka
Rosamma v. State of A.P., reported in (1999) 7 SCC 695; and a
judgment dated 09.02.2026 passed by the Co-ordinate Bench of
this Court in Sujeet Vs State of Uttar Pradesh (Criminal
Appeal No. 1633 of 2022).
39. Learned A.G.A., on the other hand, submitted that the judgment
and order of conviction are well reasoned, based on proper
appreciation of evidence, and do not suffer from any illegality,
perversity or material irregularity warranting interference by this
Court. He further submits that the law is well-settled that a
conviction can be based solely on a dying declaration if it is
found to be voluntary, truthful and reliable, and no corroboration
is required as a matter of rule.
40. In any case, the learned Trial Court has held that the dying
declaration was corroborated by the testimony of D.W.-3, the
minor daughter of the victim and the Appellant. The learned
A.G.A. has also relied upon the judgment of Rajendra V/s
State of Maharashtra, reported as 2024 INSC 422; which
according to him significantly holds that ordinarily a ‘dying

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declaration’ can be the sole basis for conviction and as such
there is no infirmity in the impugned judgment.
DISCUSSION AND FINDINGS
41. This Court has given its anxious thoughts to the facts and the
submissions made by both the parties and perused the records.
42. Apparently, the prosecution had named six witnesses to prove
the case against the accused/appellant, of which three are fact
witnesses and the remaining three were formal witnesses, being
(i) the Head Constable, who registered the F.I.R.; (ii) the Doctor,
who certified the medical condition of the Victim/deceased; and
(iii) Additional City Magistrate, who recorded the dying
declaration. As far as the three fact witnesses are concerned, i.e.
(i) P.W.-2 (Mohd. Arif), brother of the deceased and de-facto
complainant, was declared Hostile; (ii) P.W.-3 (Anisa), sister-
in-law (Bhabhi), has also been declared Hostile; and (iii) P.W.-4
(Salma Bano), mother of the deceased, has also been declared
Hostile.
43. No doubt, it is well-settled by various precedents that the
declaration of a witness as hostile does not ipso facto reject the
evidence. However, there are also precedents which reflects
that the portion of such evidence, which besides being
advantageous to both the parties and helps the Court in arriving
at a judgment, may be upheld and made admissible, although
the same has to be subject to all scrutiny, and the Court must
exercise extreme caution in its acceptance. The judgment of
the Hon’ble Supreme Court rendered in the case of State of
U.P. v. Ramesh Prasad Misra, reported in (1996) 10 SCC
360:AIR 1996 SC 2766; , throws some light on the said
proposition which inter-alia holds as herein-under:
“ it is equally settled law that the evidence of a
hostile witness would not be totally rejected if
spoken in favor of the prosecution or the accused
but it can be subjected to closer scrutiny and that
portion of the evidence which is consistent with

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CRLA No. 1789 of 2016
the case of the prosecution or defense may be
accepted. ”
44. Since, it is available from the records that the Trial Court has
convicted the appellant/accused primarily on the basis of Dying
Declaration, therefore, this Court in its endeavour to examine
the veracity and validity of the said declaration, would also
consider the corroborative nature of the evidence of these
witnesses. Having said that, it would be profitable to extract the
dying declaration, which appears as ‘ Exhibit Ka-4’ , in the
impugned judgment. The Dying Declaration along with the
certification etc. is being quoted herein below :-
" Pt. Sanno W/o MD Arif is fit for DD.
Sd/- Illegible
29-8-12
6.18 PM
EMO
Dr.S.P.M. (Civil)
Hospital,Lko.
-
प्रश्न तुम्हारानामऔर उम्र
- 30
उत्तर मेरानामशन्नोउम्रलगभग वर्ष
-
प्रश्न कहांकीरहनेवालीहो
- ( )
उत्तर नगरपंचायतजैदपुर बड़ाइमामबाड़ा थाना
,
जैदपुर
जनपदबाराबंकीकीरहनेवालीहूं।
-
प्रश्न कितनेबच्चेहैं।
-
उत्तर दोलड़कीहैं।
-
प्रश्न तुम्हारेपति कानाम
-
उत्तर अनीस
-
प्रश्न घटनाकैसेघटी
-
उत्तर आजसुबहमेरेपति नेमुझेखूबपीटाऔरपीटने

केबादमिट्टीकातेलडालकरआगलगादी।
-
प्रश्न कितनेबजे।
- 8.00
उत्तर लगभग बजेसुबह
-
प्रश्न उससमयघरपरकौनकौनलोगथे।
-
उत्तर पूराघरमौजूदथा।
-
प्रश्न तेलकिसनेडाला
-
उत्तर मेरेपति ने।
Right thumb impression
of Shanno w/o Anis.

18
CRLA No. 1789 of 2016
Sd/- Illegible
29-8-12
ACM-I
Pt. was well oriented during DD. LKO.
Sd/- Illegible
29-8-12
6.18 PM
EMO
Dr.S.P.M. (Civil)
Hospital, Lko.
”
45. Before, delving into the aspect of examining the context and
veracity of the impugned judgment, in which the aforesaid
dying declaration was held to be the sole basis for convicting
the Appellant, it would be pertinent to understand the concept
of the evidentiary value of a dying declaration. In common
parlance, a ‘dying declaration’ refer to statements relating to
the cause or circumstances of the transaction leading to the
death of the person making the declaration. The Indian
Evidence Act, 1872 does not define the term ‘dying
declaration’, but Section 32(1) of the said Act, states inter-alia:
32. Cases in which statement of relevant fact by person
“
who is dead or cannot be found, etc., is relevant -
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose
attendance cannot be procured without an amount of
delay or expense which under the circumstances of the
case appears to the Court unreasonable, are themselves
relevant facts in the following cases:—
(1) When it relates to cause of death.— When the
statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of
that person’s death comes into question. Such statements
are relevant whether the person who made them was or
was not, at the time when they were made, under
expectation of death, and whatever may be the nature of
the proceeding in which the cause of his death comes into
question………….. ”

19
CRLA No. 1789 of 2016
46. Apparently, the evidentiary value of a dying declaration is
against the rule of hearsay evidence. However, the legal
philosophy behind the value of such declaration is based on the
Latin maxim ‘Nemo moriturns praesumitur mentire’ , which
means no person at the time of his death is presumed to lie and
will not meet God with a lie in his mouth.
47. Although, a Dying Declaration is entitled to great weight, one
must not forget that the accused could not have an opportunity
to cross-examine the declarant to elicit the truth. Hence, the
Courts have consistently held that, while examining a dying
declaration, the Court should also be satisfied about the
truthfulness of such a declaration and ensure the same has not
been tutored in any manner.
48. Section 32(1) of the Evidence Act, 1872 does not prescribe any
statutory guidelines for recording a dying declaration, nor the
manner in which it should be considered while appreciating the
evidence. But, the Hon’ble Apex Court, in several leading
decisions, while considering the facts of each case, has laid
down broad guidelines and permutations for evaluation, which
has to be seen while dealing with a case based on dying
declaration of the victim/deceased. Broadly, the conditions for
admissibility of a dying declaration depends on various factors,
including that the maker of the statement must be mentally fit.
In case the Court has any confusion or doubt regarding the
medical condition of the declarant, then the statement would be
inadmissible as held in State of Haryana Vs Harpal, reported
in AIR 1978 SC 1530. Further, the Hon’ble Supreme Court in
the case of Chacko v. State of Kerala, reported in (2003) 1
SCC 112; delineated various factors which creates doubt over
the authenticity of the dying declaration, including (i) high
percentage of burn; (ii) age of the declarant; (iii) time gap
between the burn injury and recording of the statement;
(iv) non-availability of certificate of fitness etc.

20
CRLA No. 1789 of 2016
49. This Court does not wish to burden this judgment by tracing
the history of various precedents relating to the admissibility of
dying declarations. Suffice it to say that a Co-ordinate Bench of
this Court in the judgment of Lokesh and Ors. Vs. State of
U.P. (Criminal Appeal No.1371 of 2015, decided on
28.01.2023), reported in 2023 (3) ADJ 47; contextually
enumerated various factors which create doubt over the
authenticity of a dying declaration in cases of victims
succumbing to burn injuries. The observations of this Court
provide a certain extent of guidance in that regard, and the
relevant paragraphs of which are being quoted herein below:
“ 45. It has therefore to be seen as to whether the victim was in a
position to make her dying declaration and whether necessary
precaution had been taken by the prosecution to ensure that victim
was in a proper mental shape to make a declaration.
46. The primary evidence that the victim was in a fit mental state to make
a dying declaration is of the attending doctor who has been produced
as P.W.-13. We have noticed that this witness in his statement has
mentioned the critical situation of the victim. There is no satisfaction
recorded by the doctor on the dying declaration that victim was in a
fit mental state to give a voluntary statement. P.W.1 has otherwise
admitted that the victim was unconscious when she was brought to the
S.N. Medical College at around 6:00 pm. He has also admitted that
only after administering of first aid, the condition of the victim
improved and she became conscious. It is not clear as to what kind of
first aid was given to the injured victim but considering her serious
condition, it is logical to expect that some short of pain killer may have
been given to her. In such circumstances, mere recording of
satisfaction by the doctor that patient was conscious, was not
sufficient. A specific satisfaction was warranted regarding fit metal
state of the victim. No such satisfaction has been recorded by the
doctor. Merely stating that the patient is clinically fit does not amount
to a satisfaction with regard to fit mental state of the patient . The
ability of the victim to speak was severely compromised as per the
prosecution evidence itself.
47. We are therefore doubtful of the victim being in a proper mental shape
to have given a conscious voluntarily statement which could qualify to
be a dying declaration. The Magistrate/Deputy Collector who has
recorded the dying declaration of the victim has also admitted that no
questions were put to the victim regarding her fit mental state.
48. At this juncture, we would like to refer to the observation of the
Supreme Court in Paparambaka Rosamma & Others Vs State of
Andhra Pradesh reported in (1999) 7 SC 695; wherein the Court
while referring to the dying declaration observed that mere statement
that patient is conscious while recording the statement is not
sufficient. In a case where injured had sustained 90% burn injuries,
it was necessary to ascertain the fit mental state of the injured before

21
CRLA No. 1789 of 2016
accepting the dying declaration. Paragraph- 9 of the judgment is
reproduced hereunder:-
"9. It is true that the medical officer Dr. K.Vishnupriya
Devi (PW 10) at the end of the dying declaration had
certified patient is conscious while recording the
statement. It has come on record that the injured Smt.
Venkata Ramana had sustained extensive burn injuries
on her person. Dr. P. Koteswara Rao (PW 9) who
performed the post mortem stated that injured had
sustained 90% burn injuries. In this case as stated
earlier, the prosecution case solely rested on the dying
declaration. It was, therefore, necessary for the
prosecution to prove the dying declaration being
genuine, true and free from all doubts and it was
recorded when the injured was in a fit state of mind . In
our opinion, the certificate appended to the dying
declaration at the end by Dr. Smt. K.Vishnupriya Devi
(PW 10) did not comply with the requirement inasmuch
as she has failed to certify that the injured was in a fit
state of mind at the time of recording the dying
declaration . The certificate of the said expert at the end
only says that patient is conscious while recording the
statement. In view of these material omissions, it would
not be safe to accept the dying declaration (Ex.P-14) as
true and genuine and was made when the injured was in
a fit state of mind. From the judgments of the courts
below, it appears that this aspect was not kept in mind
and resultantly erred in accepting the said dying
declaration (Ex.P-14) as a true, genuine and was made
when the injured was in a fit state of mind. In medical
science two stages namely conscious and a fit state of
mind are distinct and are not synonymous. One may
be conscious but not necessarily in a fit state of mind.
This distinction was overlooked by the courts below. "
(Emphasis supplied by us)
49. The observation made in the case of Paparambaka Rosamma (supra)
has been reiterated in a subsequent decision of the Supreme Court in
the case of Naresh Kumar Vs. Kalawati & Others reported in (2021)
(16) SCC 158 , wherein the Supreme Court after referring to the above
quoted paragraph no.9 observed as under in para-13:-
"13. In the facts and circumstances of the present case,
considering that the statements of the deceased have
vacillated, there is no evidence about the fitness of mind
of the deceased to make the dying declaration including
the presence of the Doctor, the veracity and truthfulness
of the dying declaration remains suspect. It would not
be safe to simply reject the probable defence of suicide,
to reverse the acquittal and convict the respondents."
50. The statement of the Magistrate/Deputy Collector is categorical that
the contents of the dying declaration were not read out to the victim
and no satisfaction in that regard is otherwise recorded in the dying
declaration. In Suriender Kumar Vs. State of Haryana reported in
(2011) 10 SCC 173 , the Supreme Court questioned the dying
declaration also on the ground that such a satisfaction about the

22
CRLA No. 1789 of 2016
contents of the dying declaration having read out to the victim was
missing. In paragraph no. 25 of the judgment, the Supreme Court
observed as under:-
"25. As per the prosecution, the incident took place at 2
a.m. on 26.06.1991 and as per her statement, the
occurrence of burning was in the evening of 25.06.1991,
that is, the previous day. The dying declaration did not
carry a certificate by the Executive Magistrate to the
effect that it was a voluntary statement made by the
deceased and that he had read over the statement to her .
The dying declaration was not even attested by the
doctor. As stated earlier, though the Magistrate had
stated that the statement had been made in mixed dialect
of Hindi and Punjabi and the statement was recorded
only in Hindi. Another important aspect is that there was
evidence that Kamlesh Rani was under the influence of
Fortwin and Pethidine injections and was not supposed
to be having normal alertness. In our view, the trial Court
rightly rejected the dying declaration altogether
shrouded by suspicious circumstances and contrary to
the story of prosecution and acquitted the appellant. "
(Emphasis supplied by us) ”
50. As far as the present case is concerned, the dying declaration has
already been extracted herein above. A facial reading of the said
dying declaration would lead us to the fact that the doctor has
merely recorded an assertion, which read as follows: ‘fit for
DD”. It does not record as to whether the patient was fully
conscious, comprehensible, or as to what was the actual mental
state of the victim. The law provides for a specific satisfaction,
which was warranted regarding the fit mental state of the victim.
No such satisfaction has been recorded by the doctor. Merely
stating at the concluding part that the patient was “well oriented
during DD” does not amount to a satisfaction with regard to fit
mental state of the patient.
51. The doubt of this Court in asserting the significance of
satisfaction relating to the fit mental state of the victim gains
further prominence in wake of other compelling evidence. It
has come on record that the ability of the victim to speak was
severely compromised. P.W.-2 (brother of victim) specifically
stated in his examination-in-chief as well as in his cross-

23
CRLA No. 1789 of 2016
examination that, when he reached the Hospital, the victim (his
sister) was unconscious, which means she was not only unable
to speak but was not even conscious for that matter. Further,
P.W.-4 (mother of the victim) has also stated in her cross-
examination, after being declared hostile, that the victim had
sustained burn injuries to such an extent that she was unable to
talk.
52. Since, the dying declaration has been recorded in a question-
answer format, which presupposes that the victim was able to
speak which was readily understandable to the person who has
recorded the said statement, it was incumbent upon the
prosecution to also prove, or at least get certified by the doctor
concerned that the victim was able to talk and that her speech
was coherent and understandable. Alas, no such evidence has
been found on record, and naturally a dent has been created on
the veracity and admissibility of the dying declaration.
53. Further, the Doctor (P.W.-5), in his cross-examination, admitted
that the victim had sustained 90% burn injuries and also deposed
that patients with such injuries are generally not conscious. No
doubt, conscious is a stage prior to being fit and one can suppose
that a person is fit and he or she would be necessarily conscious,
but being fit does not always mean mentally fit for recording of
statement, as according to this Court, being fit may also indicate
being fit physically or being fit mentally but not fit for recording
of statement. Fitness can be of various degree. The law provides
that the victim should be mentally fit for statement and not
merely fit, as both can indicate different meaning and context.
54. Further, the statement that the victim was “well oriented during
DD” does not come to the rescue of the prosecution, for the
simple reason that, admittedly in the present case, the victim had
sustained 90% burn injuries. In such a physical state, the victim
would have been traumatized, and doctors usually administer

24
CRLA No. 1789 of 2016
medications to relieve pain, etc., but the effect of such
medication would have to be examined. Such medication, or the
traumatized condition itself, could impair mental clarity, may
cause drowsiness, or even hallucinations, etc. Therefore, doubt
would arise with regard to mental state of the victim and unless
the doctor certifies the mental fitness of the victim and she being
fully conscious and able to talk, the Court usually would be
reluctant in relying upon such dying declaration. In this context,
we find substance in the argument of learned Counsel for the
appellant that, in the absence of any recording of satisfaction
with regard to mental fitness of the victim, factually, at the time
of making dying declaration, it does not appear to be entirely
safe to rely upon such dying declaration to convict the appellant
for murder.
55. In Paparambaka Rosamma (supra), which has been relied in
the above noted judgment in Lokesh (supra) , it has been
categorically held that in medical science two stages namely
conscious and a fit state of mind are distinct and are not
synonymous. One may be conscious but not necessarily in a fit
state of mind . According to this Court, “fit” does not mean a fit
state of mind. Although a fit state of mind is a stage subsequent
to consciousness, however, in the facts of the present case, at
least two P.W.s have deposed that the victim was unconscious,
and the Doctor himself have stated in his cross-examination
that, generally, a patient sustaining 90% burn injuries is
unconscious. In these circumstances, this Court finds that the
responsibility and accuracy of recording of satisfaction of the
Doctor relating to the mental health of the victim while
recording of a dying declaration ought to be placed at a higher
pedestal that the ordinary requirement of fitness of mental state
of the deceased.
56. This Court finds that the certification of the dying declaration
dated 29.08.2012 only records that the victim (deceased) was

25
CRLA No. 1789 of 2016
“fit for DD” and “well oriented during DD”, which,
unfortunately does not meet the standard of an adequate medical
certificate, keeping in view that the victim had sustained 90%
burn injuries.
57. Further, this Court finds that the responsibility relating to the
admissibility of a dying declaration is twofold. The first
responsibility is that of the treating doctor, who certifies the
mental fitness of the victim, and, the second is that of the
Magistrate concerned, who records the dying declaration.
58. It is noteworthy that, while recording the dying declaration, the
Magistrate has to satisfy himself, before recording the dying
declaration, regarding the fit state of mind of the victim. Shri
Vinod Kumar (P.W.-6), Additional City Magistrate-I, Lucknow,
is the person who recorded the dying declaration in the present
case. It is not clear from his deposition or otherwise from the
records as to whether he put forth any questions to the victim to
ascertain that she was in a ‘fit state of mind’, as held by
Hon'ble Apex Court in the case of Laxman Vs. State of
Maharashtra reported in (2002) 6 SCC 710; while considering
such a factual situation has observed that “it is indeed a hyper
technical view that the certification of the doctor was to the
effect that the patient is fit for dying declaration and there was
no certification that the patient was in a fit state of mind or
conscious, especially when the Magistrate categorically stated
in his evidence indicating the questions he had put to the
patient and from the answers elicited was satisfied that the
patient was in a fit state of mind where-after he recorded the
dying declaration. Thus, recording and satisfaction of fit state
of mind is a sine-quo-non for admissibility of any dying
declaration and it does not matter whether the same has been
recorded by the Doctor or the Magistrate. In the case at hand,
the doctor merely stated that the victim was “fit for DD”, and
the Magistrate did not care to self-examine the degree of fitness

26
CRLA No. 1789 of 2016
of the deceased which would have satisfied him that the
deceased was mentally fit for recording of the dying
declaration, by putting questions which could have helped him
in arriving at a satisfaction. Unfortunately, the Magistrate failed
to give the basis for his satisfaction as to the mental fitness of
the deceased. He did not put any question to her to satisfy
himself in this regard.
59. The Apex Court in the case of Kanchy Komuramma Vs. State
of A.P. reported in 1996 SCC (Cri) 31; devised certain
safeguards that must be observed by a Magistrate when
requested to record a dying declaration. According to the said
judgment, the Magistrate, before recording the dying
declaration, must satisfy himself that the deceased is in a
proper mental state to make the statement. He must record this
satisfaction before recording the dying declaration, and should
also obtain the opinion of the doctor, if one is available, about
the fitness of the patient to make a statement. The prosecution
must then prove that opinion at trial in the manner known to
law.
60. No such exercise was done by the Magistrate in this case, as is
apparent from his deposition. Thus, this Court has no hesitation
in holding that both the Doctor and the Magistrate failed to
meet and satisfy the standard as is required of them for the
admissibility of a dying declaration. Further, the law is settled
that, any dying declaration in order to appeal to Judicial
conscious, must be complete and made under circumstances
that leave no doubt as to its voluntariness and truthfulness.
Ordinarily, such satisfaction should be recorded by the medical
expert, and the certificate of fitness must receive so as to affirm
the dying declaration voluntarily. The recording authority must
ensure that the dying declaration is complete and made
voluntarily, i.e., it should not be the result of tutoring,
prompting, or imagination. The statement must reflect the

27
CRLA No. 1789 of 2016
deceased's mental alertness and clarity. However, in the present
facts and circumstances, a serious doubt is created on the dying
declaration being relied by the prosecution.
61. Another aspect of the matter is that D.W.-1 and D.W.-2 have
deposed that they are sanitation workers and, at the time of the
incident i.e. 8 AM, were cleaning a drain near the house of the
victim. The presence of these D.W.’s cannot be doubted, owing
to the kind of work and the timing of their work, which is
generally conducted in the morning. These witnesses have
deposed, and their testimony remained unchallenged in the
cross-examination, to the effect, that on the date of incident they
heard screams coming from the house of the victim, wherein the
father-in-law was shouting for help, stating that his daughter-in-
law (the victim) ha put herself on fire and locked herself inside
a room. These witness in chorus stated that, they both with the
help of other neighbours, broke open the door and found the
victim inside. Interestingly, both these witness also deposed that
the accused was not present at that point of time at his house.
62. The learned Trial Court has shrugged aside the deposition of
D.W.-1 and D.W.-2 on the ground that the same is inconsistent
with the deposition of D.W.-3, the four-year daughter of the
accused. The Trial Court refused to give any benefit of doubt on
the ground of alibi to the accused; however, it is noteworthy that,
even from the statement of D.W.-3, it is apparent that the victim
had set herself on fire and locked herself in a room, which came
to be opened by the neighbour by breaking open of the door.
63. According to this Court, The Trial Court's dismissal of the
depositions of D.W.-1 and D.W.-2, on the ground of
inconsistency with D.W.-3, overlooks the harmonious accounts
of D.W.-1 and D.W.-2, both of whom are disinterested parties
whose presence at the scene is explained by their occupational
duties. Such corroborative evidence from neutral sources tilts

28
CRLA No. 1789 of 2016
the balance towards reasonable doubt, particularly when the
prosecution relies heavily on a dying declaration that lacks
independent corroboration regarding the act of pouring
kerosene.
64. Further, it is apparent from the records that the Trial Court has
recorded a factually incorrect version of D.W.-3’s deposition in
the impugned order to conclude that the accused was present at
the time of incident, whereas, it is clearly visible from a plain
reading of the deposition of D.W.-3, at page 2 of her
examination, that she had never told that her father was present
at the time of incident, as stated at internal page 18 of the
impugned order. This Court is rather amused as to how the Trial
Court, in its pursuit to hold conviction against the accused, can
record a factually erroneous statement, which, according to this
Court, also indicates a non-application of mind on the part of the
learned Trial Court in appreciating the evidence in its right
perspective.
65. This Court finds that the investigation and the trial conducted in
the present case are vitiated by serious lapses and unexplained
omissions, which strike at the root of the prosecution case. The
present case is of burn injuries, but neither the cause of the burn
nor, in case, the Dying Declaration is believed, the canister
(jerking), and/or matches, and/or the burnt cloths, or the other
relevant articles were recovered from the crime site. The
incident if allegedly is of 8 A.M. in the morning, which
according to this Court, is a time when people are typically
awake and active. There is no evidence, nor any witness
produced by the police, who could have proved the cause of fire.
In fact, it is the other way around, as D.W.-1 and D.W.-2 have
deposed that the victim locked herself in and set herself on fire.
D.W.-3, the daughter of the victim, has also stated that her
mother set herself on fire.

29
CRLA No. 1789 of 2016
66. Although, evidence on record has come to the effect that the
doors were locked and was broken to retrieve the victim,
however, there is no recovery of the door or any evidence as to
whether it was locked from inside or outside. There is also no
evidence as to any attempt was made by anyone to extinguish
the fire, or that any neighbour saw the fire or heard the scream
(even though it was 8 A.M. in the morning) and rushed to the
crime spot. The investigation is absolutely shoddy and half-
baked.
67. Neither the kind of investigation carried out, nor the materials
that were collected or would have come on record, have been
attempted to be brought on record by the prosecution. Further,
this Court finds that the prosecution did not produce the
Investigating Officer (I.O.) in the present case, nor offered any
explanation for his non-production. The failure of non-
production of the Investigating Officer reflects a casual and
perfunctory approach to the trial. According to this Court, the
Investigating Officer, in view of the facts and circumstances of
this case, is a material witness whose testimony could have shed
light on the fairness and thoroughness of the investigation
relating to the incident of the victim sustaining burn injuries, and
the place of its occurrence. 
68. The Hon'ble Supreme Court in the case of  Lahu Kamlakar
Patil v. State of Maharashtra’  reported in (2013) 6 SCC 417;
reiterated that while omission of I.O. as a witness does not
automatically vitiate the prosecution per se. However, where
the I.O.'s testimony is essential to prove the substratum of the
case and no other evidence is forthcoming, such a defect may
prove fatal, as observed in paragraph 18 of the judgment,
which reads as under:
"18. Keeping in view the aforesaid position of law,
the testimony of PW 1 has to be appreciated. He has
admitted his signature in the FIR but has given the
excuse that it was taken on a blank paper. The same

30
CRLA No. 1789 of 2016
could have been clarified by the investigating officer,
but for some reason, the investigating officer has not
been examined by the prosecution. It is an accepted
principle that non-examination of the investigating
officer is not fatal to the prosecution case. In Behari
Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996
SCC (Cri) 271] , this Court has stated that non-
examination of the investigating officer is not fatal to
the prosecution case, especially, when no prejudice
Patna High Court CR. APP (DB) No.271 of 2025
dt.15-09-2025 is likely to be suffered by the
accused. In Bahadur Naik v. State of Bihar [(2000) 9
SCC 153 : 2000 SCC (Cri) 1186] , it has been opined
that when no material contradictions have been
brought out, then non-examination of the
investigating officer as a witness for the prosecution
is of no consequence and under such circumstances,
no prejudice is caused to the accused. It is worthy to
note that neither the trial Judge nor the High Court
has delved into the issue of non-examination of the
investigating officer. On a perusal of the entire
material brought on record, we find that no
explanation has been offered. The present case is one
where we are inclined to think so especially when the
informant has stated that the signature was taken
while he was in a drunken state, the panch witness
had turned hostile and some of the evidence adduced
in the court did not find place in the statement
recorded under Section 161 of the Code. Thus, this
Court in Arvind Singh v. State of Bihar [(2001) 6
SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v. State
of J&K [(2007)13 SCC 18 : (2009) 2 SCC (Cri) 349]
and Ravishwar Manjhi v. State of Jharkhand [(2008)
16 SCC 561 : (2010) 4 SCC (Cri) 50] , has explained
certain circumstances where the examination of
investigating officer becomes vital. We are disposed
to think that the present case is one where the
investigating officer should have been examined and
his non-examination creates a lacuna in the case of
the prosecution. "
69. In the present case, the very place of occurrence and the manner
in which the victim sustained burn injuries is under doubt. Only
the Investigating Officer could have clarified whether the
alleged spot was inspected, whether oil-canister/jar, matches,
burnt clothes, or other incriminating material were seized, and
whether the recovery was consistent with the prosecution story.

31
CRLA No. 1789 of 2016
His absence deprives the defence of the opportunity to test the
fairness of the investigation and leaves the Court without
reliable evidence on where and how the incident actually took
place. The omission of this witnesses is not a minor irregularity
but a substantive defect. The Investigating Officer is not just a
formal witness, but a material one whose evidence could have
either confirmed or contradicted the prosecution version.
70. It is further noticed that the inquest report was not exhibited.
Though not substantive evidence, an inquest is a
contemporaneous document recording the initial circumstances
of discovery of the body. In Pedda Narayana v. State
of Andhra Pradesh, reported in (1975) 4 SCC 153; the Hon'ble
Supreme Court explained that the purpose of an inquest
under Section 174 of the Cr.P.C. is limited to ascertaining
whether a person has died under suspicious circumstances and
to record the apparent cause of death, as observed in paragraph
10 of the judgment which reads as under:
"10 ...Furthermore, proceedings for inquest under Section
174 of the CrPC have a very limited scope. Section 174 of
the Code as it then stood read as follows :
174. Police to enquire and report on suicide, etc .-
(1) The officer in charge of a police station or some
other officer specially empowered by the State
Government in that on receiving information that a
person-
(a) has committed suicide; or
(b) has been killed by another, or by an animal, or by
machinery, or by an accident; or
(c) has died under circumstances raising a reasonable
suspicion that some other person has committed an
offence; shall immediately give intimation thereof to
the nearest Magistrate empowered to hold inquests,
and, unless otherwise directed by any rule prescribed
by the State Government, or by any general or special
order of the District or Sub-divisional Magistrate,
shall proceed to the place where the body of such
deceased person is and there, in the presence of two or
more respectable inhabitants of the neighbourhood,
shall make an investigation and draw up a report of
the apparent cause of death, describing such wounds,

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CRLA No. 1789 of 2016
fractures, bruises and other marks of injury as may be
found on the body, and stating in what manner, or by
what weapon or instrument (if any) such marks appear
to have been inflicted.
(2) *
(3) When there is any doubt regarding the cause of
death, or when for any other reason the police officer
considers it expedient so to do, he shall, subject to such
rules as the State Government may prescribe in this
behalf, forward the body, with a view to its being
examined, to the nearest Civil Surgeon, or other
qualified medical man appointed in this behalf by the
State Government, if the state of the weather and the
distance admit of its being so forwarded without risk of
such putrefaction on the road as would render such
examination useless. ”
71. A perusal of this provision clearly shows that the object of the
proceedings under Section 174 Cr.P.C. is merely to ascertain
whether a person has died under suspicious circumstances or an
unnatural death and, if so, what is the apparent cause of death.
72. Nevertheless, when such a record is withheld, the prosecution’s
case loses an important foundation.
73. Another serious infirmity is the failure to prove the place of
occurrence. Ordinarily, this is established through the
testimony of the Investigating Officer, supported by site plans
and seizure memos. In the absence of such proof, the
prosecution case remains uncertain. At this juncture, it is
noteworthy that Hon'ble Supreme Court, while deciding the
case of  Syed Ibrahim vs. State of A.P.,   reported in (2006) 10
SCC 601; in paragraph 11 has observed as under:
"11 ....But there is another significant factor which
completely destroys the prosecution version and the
credibility of PW 1 as a witness. He has indicated four
different places to be the place of occurrence. In his
examination-in-chief he stated that the occurrence took
place in house. In the cross-examination he stated that
the incident took place at the house of his wife, the
deceased's mother. This is a very important factor
considering the undisputed position and in fact the
admission of PW 1 that he and his wife were separated
nearly two decades ago, and that he was not on visiting

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CRLA No. 1789 of 2016
terms with his wife. Then the question would
automatically arise as to how in spite of strained
relationship he could have seen the occurrence as alleged
in the house of his wife. That is not the end of the matter.
In his cross-examination he further stated that the
incident happened in the small lane in front of the house
of his wife. This is at clear variance with the statement
that the occurrence took place inside the house where
allegedly he, the deceased, his son, PW 2 and daughters,
PWs 3 and 6 were present. That is not the final say of the
witness. He accepted that in the FIR (Ext. P-1) he had
stated the place of occurrence to be the house of the
deceased. Though the FIR is not a substantive evidence
yet, the same can be used to test the veracity of the
witness. PW 1 accepted that what was stated in the FIR
was correct. When the place of occurrence itself has not
been established it would not be proper to accept the
prosecution version. "
74. Further, the alleged weapon of offence, i.e., Kerosene Jar,
matches, etc., have neither been produced nor proved.
75. Thus, on cumulative appraisal, this Court finds that the
prosecution has failed to establish its case beyond reasonable
doubt. The combination of the non-examination of the
Investigating Officer, non-production of the Inquest report,
failure to prove the place of occurrence, non-production of the
alleged weapons, and questionable inadmissibility of the dying
declaration has left the case without corroborative support.
76. The settled principle of criminal law is that, where doubt arises
from the evidence, it must accrue to the benefit of the accused.
In this regard, learned Counsel for the accused-appellant has
rightly placed reliance upon the judgment of the Hon’ble Apex
Court in the case of Irfan @ Naka Vs. State of U.P. reported as
2 023 INSC 758; wherein the Hon’ble Apex Court has made
the following observations:-
“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

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CRLA No. 1789 of 2016
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.
65. In Sujit Biswas v. State of Assam reported in (2013)
12 SCC 406, this Court, while examining the distinction
between “proof beyond reasonable doubt” and
“suspicion” in para 13 has held as under:
“13. Suspicion, however grave it may be,
cannot take the place of proof, and there is a
large difference between something that
“may be” proved, and something that “will
be proved”. In a criminal trial, suspicion no
matter how strong, cannot and must not be
permitted to take place of proof. This is for
the reason that the mental distance between
“may be” and “must be” is quite large, and
divides vague conjectures from sure
conclusions. In a criminal case, the court
has a duty to ensure that mere conjectures or
suspicion do not take the place of legal
proof. The large distance between “may be”
true and “must be” true, must be covered by
way of clear, cogent and unimpeachable
evidence produced by the prosecution,
before an accused is condemned as a
convict, and the basic and golden rule must
be applied. In such cases, while keeping in
mind the distance between “may be” true
and “must be” true, the court must maintain
the vital distance between mere conjectures
and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial
scrutiny, based upon a complete and
comprehensive appreciation of all features
of the case, as well as the quality and
credibility of the evidence brought on record.
The court must ensure, that miscarriage of
justice is avoided, and if the facts and
circumstances of a case so demand, then the
benefit of doubt must be given to the
accused, keeping in mind that a reasonable
doubt is not an imaginary, trivial or a merely
probable doubt, but a fair doubt that is based
upon reason and common sense.”
66. It may be true as observed by Hon’ble the Supreme
Court in the case of Dharm Das Wadhwani vs. State of

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CRLA No. 1789 of 2016
Uttar Pradesh, reported in (1974) 4 SCC 267 , that the rule
of benefit of reasonable doubt does not imply a frail willow
bending to every whiff of hesitancy. Judges are made of
sterner stuff and must take a practical view of the
legitimate inferences flowing from the evidence,
circumstantial or direct. Even applying this principle, we
have a doubt as regards the complicity of the appellant-
convict in the crime. ”
77. In the present case, it is difficult to sustain the conviction solely
based on the dying declaration. As discussed above, the evidence
on the point of dying declaration does not inspire confidence and
cannot be relied upon. It is also well settled that where an
investigation is tainted, unfair, or conducted in a haphazard
manner, and the prosecution evidence otherwise fails to establish
the case beyond reasonable doubt, the accused is entitled to the
benefit of doubt. The defective investigation, and the subsequent
non-examination of the Investigating Officer during the trial, in
the present facts and circumstances, further reinforces the
conclusion that the appellant's conviction cannot be sustained.
The prosecution has failed to prove the charge of murder against
the appellant beyond reasonable doubt.
78. Learned Trial Court has erred in appreciating evidentiary value
of the dying declaration, which was the only evidence relied
upon for conviction of the appellant, and has not been kept in
mind the settled law on the subject as discussed herein above.
The impugned judgment is factually erroneous, as it has not
taken into consideration other attending circumstances, relating
to the non-production of crucial evidence, and has brushed aside
the defence evidence without any plausible reason. The learned
Trial Court has thus erred in convicting the appellant and
sentencing him to life imprisonment for the charge of having
committed an offence punishable under Section 302 of the I.P.C.
79. For all the aforesaid reasons, the Conviction order of the Trial
Court and sentence imposed, cannot be sustained.

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80. Accordingly, the appeal stands allowed.
81. The judgment and order of conviction dated 06.10.2016, passed
by the Learned Additional Sessions Judge (F.T.C.), Court No.
36, Barabanki, in Sessions Trial No. 52 of 2013 ( State Vs. Mohd.
Anees and others ), arising out of Crime No. 293 of 2012, relating
to Police Station - Zaidpur, District – Barabanki, is set-aside.
The accused-appellant, Mohd. Anees, is acquitted of the offence
punishable under Section 302 of the I.P.C. The amount of fine,
if deposited, shall be refunded to the accused.
82. The accused-appellant, namely, Mohd. Anees, shall be released
forthwith, unless he is wanted in any other case, subject to
compliance of Section 437-A Cr.P.C. The Trial Court record,
along with a copy of this judgment and order, shall be
transmitted to the concerned Court forthwith.
83. There shall be no order as to cost(s).
84. All pending application(s) shall stand disposed of .
(Abdhesh Kumar Chaudhary, J.) (Rajesh Singh Chauhan, J.)
May 22, 2026
MVS/-
Digitally signed by :-
MANOJ VIKRAM SINGH CHAUHAN
High Court of Judicature at Allahabad,
Lucknow Bench