Suhail vs State Of U.P.

AFR
RESERVED
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1401 of 2020
Suhail
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Babu Lal Ram, Jitendra Kumar,
Pradeep Kumar, Praveen Kumar,
Sanjay Vikram Singh, Santosh
Kumar Yadav
Counsel for Respondent(s) : G.A., Javed Alam, Krishna Dev
Mishra
Along with :
1. Criminal Appeal No. 1007 of 2020 :
Tufail
Versus
State of U.P.
__________________________________________________________
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE VINAI KUMAR DWIVEDI, J.
(Delivered by Hon’ble Vinai Kumar Dwivedi, J.)
These criminal appeals have been filed by accused-
appellants, Suhail and Tufail, against the judgment and order of
conviction dated 14.01.2020 passed by learned Additional
Sessions Judge/F.T.C.-II, Fatehpur in Session Trial No.119 of

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2018 (State Vs. Suhail and another) arising out of Case Crime No.
235 of 2017, under Sections 498A, 304B IPC and Section 3/4
Dowry Prohibition Act, Police Station Sultanpur Ghosh, District
Fatehpur.
2. Brief facts of the case, according to written report, Exhibit
Ka-1, which was lodged by Anarunnisha (PW-1), are inter alia that
“on 16.11.2017 at about 9:00 PM, the in-laws of my daughter,
namely her husband Suhail, Imran, Afsar, Tufail, Jeena, Arbeena,
and Rabiya, poured kerosene oil on the body of Sanno while she
was sleeping and set her on fire. As a result, Sanno sustained
severe burn injuries and her skin was badly damaged. She is
currently fighting for her life, and there is little hope of her
survival. Due to her not having children and the demand for a
four-wheeler not being fulfilled, all of them together want to kill
Sanno.”
3. On the basis of the written report, Exhibit Ka-1, which was
filed by informant Anarunnisha (PW-1), a case was registered at
Case Crime No. 235 of 2017, under Sections 498A, 307 IPC and
Section 3/4 Dowry Prohibition Act at Police Station Sultanpur
Ghosh, District Fatehpur against the named accused persons,
Suhail, Imran, Afsar, Tufail, Jeena, Arbeena and Rabiya by Head
Moharrir Kanhaiya Singh (PW-6).
4. After registration of the F.I.R., Inspector Radheyshyam
Dwivedi (PW-8) took the investigation of the case. He inspected
the place of occurrence and also recorded the statement of
informant Anarunnisha (PW-1). The Investigating Officer prepared
the site plan of the place of occurrence on the pointing out of the
informant, Anarunnisha (PW-1). He also collected and made a
recovery memo of burned clothes and ashes of the hut as Exhibit
Ka-6. The victim Sanno was firstly taken to the District Hospital,
Fatehpur. Prosecution witness, Dr. Santraj Singh, Naib Tehsildar

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CRLA No. - 1401 of 2020
(PW-11) on 17.11.2017 on the direction of S.D.M., Sadar,
Fatehpur visited District Hospital, Fatehpur and recorded the
dying declaration of the victim Sanno. Thereafter victim Sanno
was referred to Hallett Hospital, Kanpur for her treatment. At
Hallett Hospital, Kanpur, the victim Sanno died on 30.11.2017 at
11:00 PM. After the death of deceased Sanno at Hallett Hospital
Kanpur, Section 304B IPC was added and investigation of the
case was handed over to Circle Officer, Surendra Kar. After
suspension of Surendra Kar, the investigation was handed over to
Circle Officer, Shripal Yadav (PW-7). Prosecution witness Arsala
Naas, Naib Tehsildar, Sadar, Kanpur (PW-10) conducted the
panchayatnama proceeding of the dead body of the deceased
Sanno and prepared the panchayatnama, Exhibit Ka-8.
5. Investigating Officer Shripal Yadav (PW-7) recorded the
statement of prosecution witnesses as well as of other formal
witnesses under Section 161 Cr.P.C. and after completing all the
formalities of the investigation, he submitted charge-sheet only
against the accused-appellants, Suhail and Tufail, under Sections
498A, 304B IPC and Section 3/4 Dowry Prohibition Act. The
Investigating Officer also found the allegations against the other
accused persons named in the written report, namely, Imran,
Afsar, Jeena, Arbeena and Rabiya to be false, hence they all were
exonerated.
6. Prosecution witness Dr. Sarvajeet Singh (PW-9) conducted
the postmortem examination of the dead body of the deceased
Sanno and prepared the postmortem report, Exhibit Ka-7.
According to Dr. Sarvajeet Singh (PW-9), following ante mortem
injuries were found on the body of the deceased Sanno :
“Superficial to deep thermal burn injuries all over the
body except skull, face and both soles. Pus present all

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CRLA No. - 1401 of 2020
over the burn area. Pubic hairs burnt and singed. About
95% thermal burn injury seen.”
7. According to Dr. Sarvajeet Singh (PW-9), about 95% body
of the deceased Sanno was burnt. The deceased died by
septicemia due to ante mortem burn injuries.
8. Since the case was exclusively triable by the Court of
Session, learned Magistrate committed the case to the Court of
Session.
9. The charge was framed against the accused-appellants,
Suhail and Tufail, under Sections 498A, 304B IPC and Section 3/4
Dowry Prohibition Act. Apart from these charges, learned trial
Court also framed alternative charge against the accused-
appellants, Suhail and Tufail, under Section 302 read with Section
34 IPC. The accused-appellants denied from the charge and
claimed trial.
10. To substantiate the charge against the accused-appellants,
prosecution adduced Anarunnisha (PW-1), Babu @ Bablu (PW-2),
Suman @ Suggan (PW-3), Pannabano (PW-4), Mohd. Husain
(PW-5), Kanhaiya Singh (PW-6), Shripal Yadav (PW-7), Radhey
Shyam Dwivedi (PW-8), Dr. Sarvajeet Singh (PW-9), Arsala Naas
(PW-10), Dr. Santraj Singh (PW-11) and Dr. Atul Kumar
Srivastava (PW-12). Apart from the above ocular evidence,
prosecution also relied on documentary evidence from Exhibits
Ka-1 to Ka-13.
11. In trial Court, the evidence of prosecution witnesses was
recorded. After recording the evidence of prosecution witnesses,
learned trial Court examined the accused-appellants under
Section 313 Cr.P.C. The accused-appellants denied all the
allegations and have stated that all allegations are false. The
prosecution has given false evidence against them. The accused-

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CRLA No. - 1401 of 2020
appellants have also stated that the deceased Sanno was cooking
food on the date of incident at 09:00 PM. Under hut, a lamp of
kerosene oil was lit above the clay stove (chulha) at some
distance. Due to pressure from some insects, the lamp of
kerosene oil fell on the ground and by falling the same, spark
spread and fire caught in the hut as well as in the clothes of
deceased, Sanno. The accused-appellant, Suhail, has also stated
that he tried to extinguish the fire. In this attempt, he also got
burnt. He has not demanded any four wheeler vehicle from his
wife or from his father-in-law and mother-in-law. He also stated
that he has never taunted his wife for not having child. Both the
accused-appellants have stated that they are innocent. They have
also stated that the deceased has received burn injuries of 95%
and she was not in a condition to speak. The victim has not given
any statement to Naib Tehsildar and he in collusion with the
informant has written false statement. In this way, the accused-
appellants denied from all the charges and allegations. They have
also stated that they will adduce defence evidence in their
support. In their defence, accused-appellants have adduced Kallu
as DW-1.
12. After recording the evidence of both sides, the trial Court
heard the arguments of the prosecution and defence and found
the accused-appellant, Suhail, guilty under Section 302, 498A IPC
and accused-appellant, Tufail, was also found guilty under Section
498A IPC. However, the accused-appellant, Suhail, was acquitted
under Section 304B IPC and Section 3/4 Dowry Prohibition Act.
The accused-appellant, Tufail, was also acquitted under Section
302, 304B IPC and Section 3/4 Dowry Prohibition Act. The trial
Court convicted and sentenced the accused-appellant, Suhail, for
life imprisonment under Section 302 IPC and a fine of Rs.
10,000/- and in default of payment of fine, he was directed to

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CRLA No. - 1401 of 2020
undergo six months’ additional imprisonment. The accused-
appellant, Suhail, was further sentenced under Section 498A IPC
to undergo three years’ imprisonment and a fine of Rs. 3000/-
and in default of payment of fine, he was directed to undergo
three months’ additional imprisonment. The accused-appellant,
Tufail, was convicted and sentenced under Section 498A IPC for
two years’ imprisonment and a fine of Rs. 2000/- and in default of
payment of fine, he was directed to undergo two months’
additional imprisonment. All the sentences were directed to run
concurrently.
13. Aggrieved by the above judgment and order of conviction
and sentence dated 14.01.2020, accused-appellants preferred
these criminal appeals.
14. We have heard the arguments of learned counsel for the
appellants and learned A.G.A. for the respondent-State. We have
also gone through the evidence available on record and the
judgment and order of the learned trial Court dated 14.01.2020.
15. Learned counsel for the accused-appellants has argued that
at the time of passing of the impugned judgment and order,
learned trial Court has not applied its judicial mind. The appellant,
Suhail, is husband of the deceased, Sanno, and he has been
falsely implicated in the present case without any evidence. The
appellant, Tufail, is father-in-law of the deceased Sanno. He was
also falsely implicated by the prosecution. Learned trial Court has
illegally convicted the accused-appellants without considering real
facts and circumstances of the case. It is also submitted by
learned counsel for the accused-appellants that the deceased
Sanno was cooking food at the time of the incident in her hut. A
lamp of kerosene oil was lit above the clay stove (chulha) which
fell down on the ground. Due to this, spark spread from the clay
stove and caught fire in the hut. The fire was also caught the

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CRLA No. - 1401 of 2020
clothes of the deceased Sanno, who was cooking food at that
time. Suhail, who is husband of the deceased Sanno, tried to save
her life. In this attempt, he also got burnt and sustained injury.
Prosecution witnesses of the facts turned hostile. They have not
supported the prosecution story. Due to this, learned trial Court,
although acquitted the accused-appellants under Section 304B
IPC and Section 3/4 Dowry Prohibition Act, but convicted and
sentenced the accused-appellant, Suhail, husband of the
deceased Sanno, against the settled principles of law under
Section 302 IPC. There is no evidence on the record from which it
could be conclusively proved that accused-appellant, Suhail, has
committed murder of his wife, deceased Sanno, by pouring
kerosene oil upon her and setting her on fire. However, learned
trial Court without any evidence available on record or from any
prosecution witnesses wrongly held accused-appellant, Suhail,
guilty under Section 302 IPC for murder of the deceased Sanno
and convicted and sentenced him. The finding and reasoning of
the learned trial Court are against the settled principles of law and
without any evidence on the record. The accused-appellant,
Tufail, who is father-in-law of the deceased is totally innocent and
was living separately from his son, Suhail, in a separate hut and
earning his livelihood by doing labour work, but the trial Court has
wrongly convicted and sentenced Tufail for Section 498A IPC. It is
also submitted on behalf of the accused-appellants that so called
dying declaration of deceased Sanno is falsely recorded by the
prosecution witness Dr. Santraj Singh (PW-11) in collusion with
the informant Anarunnisha (PW-1). There are many defects and
drawbacks in the dying declaration, Exhibit Ka-13, of the
deceased Sanno, which was recorded by Dr. Santraj Singh (PW-
11). The trial Court has not considered legal perspective in the
light of the settled principles of law in this regard by the Supreme
Court and in total disregard of the settled principles of law and

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against the evidence, held the accused-appellants guilty for
commission of the alleged offence. On the above point of
arguments, it is submitted by learned counsel for the accused-
appellants that the accused-appellants are innocent and deserve
to be acquitted by the Trial Court. Hence the judgment and order
dated 14.01.2020 of the Trial Court is not sustainable in the eyes
of law and is liable to be set aside and the criminal appeals filed
by the accused-appellants deserve to be allowed.
16. Per contra, learned A.G.A. for the respondent-State has
submitted that although witnesses of the facts have turned hostile
but on the basis of dying declaration, Exhibit Ka-13, and evidence
of the prosecution witnesses, Dr. Santraj Singh (PW-11), who
recorded the dying declaration of the deceased Sanno, and Dr.
Atul Kumar Srivastava (PW-12), who has testified and given
certificate that the deceased at that time was in conscious
condition and she was able to give her statement. On the basis of
the above evidence, trial Court has held the accused-appellants
guilty for commission of the crime and sentenced them
accordingly. There is no misappreciation and misreading of the
evidence by the trial Court. The trial Court has appreciated all the
evidence in proper perspective and according to the settled
principles of law. There is no perversity or illegality in the
judgment and order of trial Court. The finding and reasoning
given by trial Court are based on cogent evidence, such as, dying
declaration and evidence of prosecution witnesses, Dr. Santraj
Singh (PW-11) and Dr. Atul Kumar Srivastava (PW-12). The
evidence of the above prosecution witnesses and dying
declaration, Exhibit Ka-13, were found fully reliable and
creditworthy by the trial Court. Due to this reason, the trial Court
delivered the above judgment and order of conviction and
sentence. In this way, learned A.G.A. for the respondent-State

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CRLA No. - 1401 of 2020
has submitted that criminal appeals filed by the accused-
appellants have no merit and are liable to be rejected and the
judgment and order of conviction and sentence passed by the
trial Court dated 14.01.2020 is liable to be affirmed.
17. In the light of above arguments and from perusal of the
written report, Exhibit Ka-1, it is revealed that informant
Anarunnisha (PW-1) filed written report, Exhibit Ka-1, alleging
that “on 16.11.2017 at about 09:00 PM, the in-laws of my
daughter, namely, Suhail (husband), Imran, Afsar, Tufail, Jeena,
Arbeena, and Rabiya, poured kerosene oil on the body of Sanno
while she was sleeping and set her on fire. As a result, Sanno
sustained severe burn injuries and her skin was badly damaged.
She is currently fighting for her life, and there is little hope of her
survival.” In the written report, Exhibit Ka-1, the informant,
Anarunnisha (PW-1), stated that the cause of the incident was
that her daughter was unable to give birth to child. In other
words, childlessness and the demand for a four-wheeler vehicle
were cited as the reasons and motive for the incident. Thus, it is
apparent that aforesaid two causes or motives for the incident are
stated in the written report, Exhibit Ka-1.
18. When informant Anarunnisha (PW-1) was examined in the
trial Court, she, in her examination-in-chief, fully supported the
prosecution story. She stated in her examination-in-chief that “I
am illiterate. The incident is about one year old. I had married my
daughter with Suhail, who is resident of the same village.
Marriage was solemnized in the year 2014 about four years ago.
In November last year, at about 9:00 PM, when my daughter was
sleeping, her husband and in-laws, namely, Suhail, Imran, Afsar,
Tufail, Jeena, Arbeena and Rabiya, set her on fire. After catching
fire, my daughter rushed out of the house to save herself. Upon
hearing the hue and cry in the village, I also reached at the spot.

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CRLA No. - 1401 of 2020
My daughter was badly burnt. In-laws of my daughter were
demanding a four-wheeler vehicle in dowry. My husband and my
elder brother-in-law had taken my daughter to the Government
Hospital. From there, she was taken to Sadar Hospital, Fatehpur.
Since the condition of my daughter was very serious, doctor
referred her to Hallet Hospital, Kanpur. I had also went at Hallet
Hospital. My daughter had died later at Hallet Hospital. The
statement of my daughter was recorded by magistrate during her
treatment at District Hospital, Fatehpur. After setting her on fire,
in-laws of my daughter fled away from the house. Due to not
fulfilling the demand of a four-wheeler vehicle in dowry, my
daughter was burnt by her in-laws.” However, in her cross-
examination, she resiled from her statement in examination-in-
chief and has not supported the prosecution story. In spite of
becoming hostile in her cross-examination, written report, Exhibit
Ka-1, has found fully corroborated by her statement given in the
examination-in-chief. Thus, we find that the written report,
Exhibit Ka-1, found corroboration by the evidence of informant
(PW-1) as given in her examination-in-chief.
19. Other prosecution witnesses of the facts, Babu @ Bablu
(PW-2), Suman @ Suggan (PW-3), Pannabano (PW-4) and Mohd.
Hussain (PW-5) have not supported the prosecution story and all
turned hostile.
20. Now only dying declaration of the deceased Sanno, Exhibit
Ka-13, become relevant in this case. From the perusal of the
dying declaration, Exhibit Ka-13, it is revealed that on 17.11.2017
at 12:20 AM, her statement was recorded at District Hospital,
Fatehpur. Before recording her dying declaration, Medical Officer,
District Hospital, Fatehpur has given a certificate at the first page
of the dying declaration, Exhibit Ka-13, that “patient is conscious
and able to speak at 12:15 AM on 17.11.2017.” After recording

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CRLA No. - 1401 of 2020
the dying declaration of the victim Sanno on the backside below
the ending of dying declaration in middle of the page again a
certificate is endorsed by the same Medical Officer, District
Hospital, Fatehpur dated 17.11.2017 that “patient is conscious
and able to speak and well oriented and mentally sound during
her statement. Patient is mentally sound now at 12:52 AM.” On
backside of the dying declaration, Exhibit Ka-13, thumb
impression of the right hand of the victim Sanno was endorsed.
Signature of Naib Tehsildar are also endorsed with date
“17.11.2017”.
21. From the perusal of the dying declaration, Exhibit Ka-13, of
the deceased Sanno, it is revealed that incident happened on
16.11.2017 at 08:00 PM and dying declaration of the deceased
Sanno was recorded on the same night on 17.11.2017 at 12:20
AM. Thus, there is no delay in recording the dying declaration of
the deceased Sanno. In her dying declaration, Exhibit Ka-13,
Sanno stated that “she is aged about 22 years and wife of Mohd.
Suhail.” She also stated that “on 16.11.2017 at about 08:00 PM,
her husband suddenly started beating and abusing her and he
poured kerosene oil on her body and set her on fire.” She has
also stated that “I made hue and cry and began to rush here and
there. I rushed outside and fell on the road. Then my uncle-in-
law, Afsar, reached me and extinguish the fire caught on my body
and I become unconscious.” According to the dying declaration,
she also stated that “my matrimonial home and paternal home
are in the same village. I was married before three years of the
incident with Mohd. Suhail, who is son of my maternal uncle.”
According to her statement in dying declaration, she has also
stated that “after three years of marriage, I could not conceive
and was unable to give birth to the child. Due to this reason, my
in-laws were aggrieved and taunting me for not giving birth to the

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CRLA No. - 1401 of 2020
children.” Apart from the above statement, deceased Sanno has
also stated in her dying declaration that “her husband had illicit
relation with his sister-in-law, Rabiya. This relationship is known
to me for the last two years. I had seen them on bed in a
compromising situation. Due to this reason, they began to harass
me and often committed cruelty.” In this way, in her dying
declaration, Exhibit Ka-13, deceased Sanno has stated above two
causes and reasons, due to which her husband, Suhail, poured
kerosene oil on her body and set her on fire.
22. Learned counsel for the accused-appellants has made
arguments that prosecution witnesses, including informant
Anarunnisha (PW-1), has not made any allegation against the
appellants. There is no evidence of any independent witness that
the appellant Suhail used to torture his wife Sanno for being
issue-less. Hence, in the absence of any evidence to this effect,
prosecution story appears to be concocted and is liable to be
rejected. It is also submitted that in the present case, in absence
of any other evidence, the appellant was convicted by the trial
Court only on the basis of dying declaration of the deceased
without corroborating the contents of the dying declaration of the
deceased. The dying declaration of the deceased is not free from
tutoring and prompting since PW-1 was present at the time of
recording the dying declaration. It is further submitted that from
perusal of the post mortem report of the deceased, it is clear that
at the time of making dying declaration, the deceased was burnt
upto 95%. The deceased suffered ante mortem superficial to
deep burnt injuries all over the body except skull, face and both
soles. Brain and its internal matter were congested, lungs were
congested, spleen and lever were also congested and both
kidneys were also congested. Under such circumstances, it is
highly improbable that the deceased has to make her statement

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CRLA No. - 1401 of 2020
which makes the dying declaration doubtful and the conviction
based on it, is unsustainable. He also submitted that PW-1, who is
mother of the deceased, has also admitted in her cross-
examination that when the dying declaration of the victim Sanno
was recorded, she was not fit to make any statement and her
condition was very serious. Hence, the dying declaration appears
to be doubtful and unreliable.
23. In the light of the above submissions of learned counsel for
the accused-appellants, we have perused the evidence of Dr.
Santraj Singh, Naib Tehsildar, Sadar, Fatehpur (PW-11), who has
recorded dying declaration of the deceased Sanno on 17.11.2017
and evidence of Dr. Atul Kumar Srivastava (PW-12), who has
given certificate of fitness and mental condition of the victim
Sanno before and after recording of her dying declaration.
24. From the perusal of the evidence of Dr. Santraj Singh, Naib
Tehsildar (PW-11), it is revealed that, on the direction of the
S.D.M., Fatehpur, he reached the District Hospital, Fatehpur for
recording the dying declaration of the victim, Sanno. According to
this witness, on 17.11.2017, he went to the emergency ward of
Sadar Hospital, Fatehpur, where the doctor, under whose
supervision the deceased, Sanno, was undergoing treatment, was
present. He requested Dr. Atul Kumar Srivastava (PW-12) for
giving certificate about fitness and mental condition of the victim
Sanno. Thereafter, Dr. Atul Kumar Srivastava (PW-12) has given
certificate that “patient is conscious and able to speak at 12:15
AM on 17.11.2017.” Apart from this, Dr. Santraj Singh (PW-11)
also himself questioned the victim Sanno to know her condition
and according to this witness, Sanno has given correct answer
and he found that she is fully competent to give her statement.
Thereafter, this witness has recorded the dying declaration of the
victim/deceased Sanno with regard to whole incident. According

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CRLA No. - 1401 of 2020
to this witness, at the time of recording of the dying declaration,
no patient except Sanno was present in the ward. According to
this witness, after completion of the recording of the dying
declaration of the victim Sanno, again Dr. Atul Kumar Srivastava
(PW-12) has given certificate about fitness and mental condition
of the victim Sanno that “patient is conscious and able to speak
and well oriented and mentally sound during her statement.
Patient is mentally sound now at 12:52 AM.” The victim/deceased
Sanno heard the contents of her dying declaration, Exhibit Ka-13,
and she verified the same to be true. During the course of cross-
examination by defence, this witness has denied all suggestions
put to him. There is no question of this nature in the cross-
examination of this witness by which we could doubt the veracity
and trustworthiness of this witness.
25. In the same way, from the perusal of the evidence of Dr.
Atul Kumar Srivastava (PW-12), it is revealed that before
recording of dying declaration by Dr. Santraj Singh (PW-11), this
witness Dr. Atul Kumar Srivastava (PW-12) has given fitness
certificate about the mental condition and competency of the
deceased Sanno. Even after recording of the dying declaration of
deceased Sanno, this witness has also given certificate at the end
of the dying declaration, Exhibit Ka-13, on the backside of the
paper that “patient is conscious and able to speak and well
oriented and mentally sound during her statement. Patient is
mentally sound now at 12:52 AM.” Both above prosecution
witness Dr. Santraj Singh (PW-11) and Dr. Atul Kumar Srivastava
(PW-12) verified this fact and testified after perusing the dying
declaration, Exhibit Ka-13, in their handwriting. During cross-
examination by defence, Dr. Atul Kumar Srivastava (PW-12) has
stated in his cross-examination that there was no one present in
the ward at the time of recording of dying declaration of

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CRLA No. - 1401 of 2020
deceased Sanno. Only he (PW-12) and Dr. Santraj Singh (PW-11)
were present. Meaning thereby, no member of the deceased
Sanno’s paternal family members were present at the time of
recording her dying declaration. Thus, from this fact, it is amply
clear that there was no possibility or chance for tutoring and
prompting to deceased Sanno about the statement. The dying
declaration of deceased Sanno was found to be free from
tutoring, prompting and false concoction.
26. We have perused the judgment of the Apex Court (Five-
Judge Bench) in the case of Laxman v. State of Maharashtra,
(2002) 6 SCC 710. The facts of the above case law and those of
the present case, to some extent, are similar inasmuch as, in the
said case, only a certificate was given by the doctor stating that
the patient was conscious, and in the present case as well, Dr.
Atul Kumar Srivastava has given a certificate that the patient was
conscious and able to speak. On this point, the Supreme Court
held that there was certificate of the doctor indicating that patient
was conscious. The accused-appellants contended that, since the
doctor’s certification did not state that the patient was in a fit
state of mind to make the statement, the dying declaration could
not form the sole basis of conviction. The Supreme Court in the
light of above arguments held that;
“The situation in which a man is on the deathbed is very
solemn and serene, is the reason in law to accept the
veracity of his statement. It is for this reason that the
requirements of oath and cross-examination are dispensed
with. Since the accused has no power of cross-examination,
the courts insist that the dying declaration should be of
such a nature as to inspire full confidence of the court in its
truthfulness and correctness. The court, however, has
always to be on guard to see that the statement of the
deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must

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further decide that the deceased was in a fit state of mind
and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to satisfy
whether the deceased was in a fit mental condition to make
the dying declaration looks up to the medical opinion. But
where the eyewitnesses state that the deceased was in a fit
and conscious state to make the declaration, the medical
opinion will not prevail, nor can it be said that since there is
no certification of the doctor as to the fitness of the mind of
the declarant, the dying declaration is not acceptable. A
dying declaration can be oral or in writing and any
adequate method of communication whether by words or
by signs or otherwise will suffice provided the indication is
positive and definite. There is no requirement of law that a
dying declaration must necessarily be made to a Magistrate
and when such statement is recorded by a Magistrate there
is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be
attached to such statement necessarily depends on the
facts and circumstances of each particular case. What is
essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit
state of mind. Where it is proved by the testimony of the
Magistrate that the declarant was fit to make the statement
even without examination by the doctor the declaration can
be acted upon provided the court ultimately holds the same
to be voluntary and it is indeed a hypertechnical view that
the certification of the doctor was to the effect that the
patient is conscious and there was no certification that the
patient was in a fit state of mind 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 whereafter he had recorded the dying declaration.”
27. The Supreme Court overruled the case law of Paparambaka
Rosamma v. State of Andhra Pradesh, (1999) 7 SCC 695 as not a
good law and affirmed the law laid down by the Supreme Court in
the case of Koli Chunilal Savji and another V. State of Gujarat,

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CRLA No. - 1401 of 2020
(1999) 9 SCC 562. The three Judges Bench of the Supreme Court
in the case of Koli Chunilal Savji (supra) held in para 7 that;
“In Ravi Chander v. State of Punjab, (1998) 9 SCC 303,
this Court has held that for not examining the doctor, the
dying declaration recorded by the Executive Magistrate
and the dying declaration orally made need not be
doubted. The Court further observed that the Executive
Magistrate is a disinterested witness and is a responsible
officer and there is no circumstance or material on record
to suspect that the Executive Magistrate had any animus
against the accused or was in any way interested in
fabricating the dying declaration and, therefore, the
question of genuineness of the dying declaration recorded
by the Executive Magistrate to be doubted does not
arise.”
28. The Supreme Court in the case of Krishna Kumar @ Pamma
v. State of Haryana, (1998) 8 SCC 586 has held in para 10 that;
“On perusal of the impugned judgment, we find that both
the learned courts below went into the question as to
whether the deceased met with homicidal death as alleged
by the prosecution or a suicidal death as contended by the
appellant and on detailed discussion of the evidence found
the story made out by the appellant wholly unacceptable.
The most important circumstance which persuades us to
disbelieve the version of the appellant is the fact that
immediately after the incident, he ran away from the spot.
If his version was true, it was expected of him to take the
deceased immediately to the hospital for the purpose of
treatment. Indeed, he did not even get himself examined
for his own burns. While on this point it will be pertinent to
mention that Dr (Mrs) Sinha opined that the injuries found
on the appellant were possible while putting somebody on
fire by pouring kerosene as in such a situation, flames
emerge abruptly. We do not however for a moment suggest
that his such conduct by itself points to his guilt but it
certainly belies his version of the incident. It is, of course,
true that the sister of the deceased has supported the
appellant but we cannot lose sight of the fact that she was

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CRLA No. - 1401 of 2020
a witness for the prosecution and was summoned to testify
on its behalf. She was however not examined by the
prosecution as she was found to have been won over; and
then she examined herself as a defence witness. She
admitted in her cross-examination that for the purposes of
testifying on behalf of the defence, she was not summoned
by the Court but was brought by Raj Kumar, the brother of
the appellant. Then again we find that she admitted in her
deposition that she had been attracted to the spot on
hearing the cries of the deceased. Obviously, the cries were
raised by the deceased after she was put on fire and,
therefore, she could not have been in a position to say how
she had been set on fire.”
29. Thus, in light of the legal principles laid down by the
Supreme Court in the cases of Laxman (supra), Koli Chunilal Savji
(supra) and Krishna Kumar @ Pamma (supra), it is clear that the
requirement of a doctor’s endorsement regarding the mental
fitness of the deceased to make his/her declaration is not a rule
of law or a mandatory provision, but merely a rule of prudence;
the ultimate test is whether the dying declaration is truthful,
voluntary, and free from any tutoring, prompting, or other
suspicious circumstances.
30. From the appreciation and perusal of the evidence of Dr.
Santraj Singh (PW-11) and Dr. Atul Kumar Srivastava (PW-12),
we find that the dying declaration, Exhibit Ka-13, of deceased
Sanno is free from any tutoring and prompting. It is found to be
truthful and voluntary, which inspire confidence as being
trustworthy and creditworthy and is wholly reliable.
31. Thus, in the light of the above legal principles as laid down
by the Supreme Court in the cases of Laxman (supra), Koli
Chunilal Savji (supra) and Krishna Kumar @ Pamma (supra) and
in the light of the evidence of Dr. Santraj Singh (PW-11) and also
Dr. Atul Kumar Srivastava (PW-12), we find no force in any

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CRLA No. - 1401 of 2020
arguments of learned counsel for the accused-appellants in this
respect.
32. We have also perused the case law as referred and relied on
by learned counsel for the accused-appellants, such as, Khushal
Rao v. State of Bombay, 1957 LawSuit (SC) 93; Rasheed Beg v.
State of M.P., 1973 LawSuit (SC) 355; K. Ramachandra Reddy v.
Public Prosecutor, 1976 LawSuit (SC) 214; Darshan Singh v. State
of Punjab, 1983 LawSuit (SC) 104; Paniben v. State of Gujarat,
1992 LawSuit (SC) 228; Jugal v. State of U.P., 2023 LawSuit (All)
1227; Phulel Singh v. State of Haryana, 2023 LawSuit (SC) 951;
and Sunil Kumar, Bal Krishna and another v. State, 2024 LawSuit
(All) 2327, and find that the facts and circumstances of the
aforesaid cases as relied upon and referred to by the accused-
appellants are different from the facts and circumstances of the
present case at hand. Apart from the above, we also find that in
the light of the legal principles as laid down by the Supreme Court
in the case of Laxman (supra), Koli Chunilal Savji (supra) and
Krishna Kumar @ Pamma (supra), the accused-appellants are not
found entitled for any benefit on the ground of case laws as
referred above by them.
33. From the perusal of the evidence, documentary and oral, it
is revealed that after happening of the incident, accused-
appellants Suhail fled away from the place of occurrence. The
house of parents of the deceased Sanno was in the same village.
On hearing the hue and cry of the people, they reached at the
spot and got admitted her daughter Sanno at Sadar Hospital,
Fatehpur. Although all witnesses of facts, such as, mother and
other prosecution witnesses turned hostile and have not
supported the prosecution story but it is clear that the accused-
appellant, Suhail, after the incident disappeared from the place of
occurrence. If the accused-appellant Suhail was innocent, he

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CRLA No. - 1401 of 2020
would have been duty-bound to take his burnt wife Sanno to the
hospital for treatment and also to inform the police by giving
information at the concerned police station having jurisdiction
about the incident. It is the defence of the accused-appellants
that a kerosene oil lamp was lit above the clay stove where the
deceased Sanno was cooking food and it accidentally fell on the
ground, and due to the spark, fire caught the clothes of the
deceased. In these circumstances, why did the accused-appellant
Suhail, who is the husband of the deceased Sanno, flee from the
place of the incident and not cared to admit her to the hospital
for treatment? Why accused-appellant, Suhail, husband of the
deceased Sanno, has not given information of so-called accidental
occurrence at the police station? Thus, from the conduct of the
accused-appellant, Suhail, it is amply clear that it is not an
accidental death but a homicidal death. Thus, the defence of the
accused-appellant, Suhail, is belied by his own conduct. Meaning
thereby, incident dated 16.11.2017 is not an accidental incident
but it is a homicidal one because after pouring kerosene oil upon
his wife Sanno, accused-appellant, Suhail, fled away from the
place of occurrence. He even not cared to take the victim to the
hospital for her treatment and also he had not given any
information at the concerned police station having jurisdiction in
this respect. Thus, the conduct of the accused-appellant, Suhail,
also corroborates the prosecution case of homicidal death and the
statement of the deceased Sanno in her dying declaration, Exhibit
Ka-13.
34. As far as the argument of learned counsel for the accused-
appellants in respect of lodging the first information report after
four day delay is concerned, we also find no force in this
argument because the incident happened on 16.11.2017. The
victim Sanno was admitted by her parents to District Hospital,

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CRLA No. - 1401 of 2020
Fatehpur on the same night on 16.11.2017 and her dying
declaration was recorded on the same night at 12:20 on
17.11.2017. Since the condition of the victim was serious, she
was referred to Hallett Hospital, Kanpur for her treatment where
she died on 30.11.2017. It is revealed from the record of the case
that after the incident, the accused-appellant, Suhail, whose wife
deceased Sanno was burnt seriously has fled away from the place
of occurrence with his family members. The paternal family
members of the deceased Sanno were busy in her treatment to
save her life. For this reason, the written report, Exhibit Ka-1,
could be lodged by Anarunnisha (PW-1) only on 20.11.2017.
Since the parents, brother, and sister of the deceased Sanno were
busy in her treatment and in efforts to save her life, therefore,
there was a delay of four days in lodging the written report,
Exhibit Ka-1, at the concerned police station. Thus, we find that
there is no delay in lodging the written report, Exhibit Ka-1, at the
concerned police station, therefore, we find no force in the
argument of learned counsel for the accused-appellants in this
respect.
35. As far as arguments of learned counsel for the accused-
appellants that no witnesses of fact has supported the
prosecution story and in this light, the prosecution story become
suspicious is concerned, we are of the opinion that all witnesses
of facts have been won over by the defence. Due to this reason,
witnesses of facts have not supported the prosecution story.
However, only on that ground, accused-appellant, Suhail, is not
found entitled to gain any benefit because in the dying
declaration, Exhibit Ka-13, it was found fully trustworthy and free
from tutoring and prompting. The deceased herself narrated the
incident in a very simple words. Learned trial Court based its
finding and reasoning on the dying declaration, Exhibit Ka-13, and

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CRLA No. - 1401 of 2020
found the accused-appellant, Suhail, guilty for the commission of
the murder of his wife, deceased Sanno, by pouring kerosene oil
on her body and set her on fire. Thus, even after all prosecution
witnesses of facts turned hostile, there is ample evidence, which
is based on dying declaration, Exhibit Ka-13, of deceased Sanno
against the accused-appellant, Suhail. Thus, we also do not find
any force in the arguments of learned counsel for the accused-
appellants in this respect.
36. As far as the arguments of learned counsel for the accused-
appellants which are based on the postmortem report, Exhibit Ka-
7, and the testimony of Dr. Sarvajeet Singh (PW-9), who
prepared Exhibit Ka-7, are concerned, it is clear from the
postmortem report, Exhibit Ka-7, and the statement of Dr.
Sarvajeet Singh (PW-9) that the features of the dead body
regarding the external and internal organs, as recorded in the
postmortem report, were noted after the death of the deceased
Sanno. Meaning thereby, on 17.11.2017 at 12:20 AM, she was
fully conscious and able to give her statement. This shows that on
17.11.2017, there was no failure of internal and external organs
of the deceased Sanno, when her dying declaration was being
recorded by Dr. Santraj Singh, Naib Tehsildar (PW-11) in
presence of Dr. Atul Kumar Srivastava (PW-12). In view of the
above, we find no force in the argument of learned counsel for
the accused-appellants in this respect also.
37. Thus, from the above discussions and perusal of the dying
declaration, Exhibit Ka-13, of the deceased, which is corroborated
by Dr. Santraj Singh, Naib Tehsildar (PW-11) and Dr. Atul Kumar
Srivastava (PW-12), it is clearly revealed that when Sanno was
sleeping, accused-appellant, Suhail, with intention to kill her,
poured kerosene oil upon her and set her on fire and thereby
killed his wife only for the reasons that she was not conceiving

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CRLA No. - 1401 of 2020
and giving birth to child and she had seen her husband, Suhail,
with her sister-in-law (Jethani), Rabiya, in a compromising
situation.
38. We have also gone through the finding and reasoning given
by learned trial Court and found that the finding and reasoning
given by learned trial Court in respect of the role and direct
involvement of accused-appellant, Suhail, are based on cogent
and reliable evidence as stated by deceased Sanno in her dying
declaration, Exhibit Ka-13. However, we find that after registering
the case under Sections 498A, 307 IPC and Section 3/4 Dowry
Prohibition Act, the then Investigating Officer Inspector
Radheshyam Dwivedi investigated the case and at that time, the
victim Sanno was alive. The then Investigating Officer Inspector
Radheshyam Dwivedi (PW-8) stated in his cross-examination that
“I have shown both houses of accused persons in the site plan in
which one house is of accused Tufail and second house is of
Suhail and were shown by me in the site plan.”
39. From the perusal of the site plan, Exhibit Ka-5, we find that
the house of Tufail is shown on the right side, in the eastern
direction of the road, and the house/hut of accused Suhail, where
the incident took place, is shown at the corner in the western -
southern direction of the site plan, in the jungle and bushes. The
accused-appellant, Suhail, was living with his wife, the deceased
Sanno, separately from his father, accused Tufail, and other
family members, in a separate hut. This fact indicates that all
other family members of the accused-appellant, Suhail, were
living with accused-appellant, Tufail, in a separate house. Thus,
this fact also found corroboration from the dying declaration of
the deceased that accused-appellant, Tufail, has no role in
torturing or committing cruelty to deceased Sanno. It was the act

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CRLA No. - 1401 of 2020
of only Suhail, who tortured, harassed and killed his wife Sanno
by pouring kerosene oil and setting her on fire.
40. In view of the above fact and situation, we find that
implication and involvement of the accused-appellant, Tufail, was
found to be doubtful. Due to this reason, the finding and
reasoning in this respect of learned trial Court by which accused
Tufail was held guilty under Section 498A IPC and his conviction
for two years’ imprisonment with a fine of Rs. 2000/- is not found
sustainable in the eyes of law. Thus, we find that conviction and
sentence of accused Tufail under Section 498A IPC is not
sustainable and is liable to be set aside, but the judgment and
order of conviction of the accused Suhail is found to be based on
cogent finding and reasoning. Hence, we are only inclined to
sustain the conviction and sentence of accused Suhail under
Sections 302, 498A IPC.
41. In view of the above, Criminal Appeal No. 1007 of 2020 is
allowed. We set aside the impugned judgment and order dated
14.01.2020 of conviction and sentence passed against the
accused-appellant, Tufail, by learned Trial Court in Session Trial
No.119 of 2018 (State Vs. Suhail and another) arising out of Case
Crime No. 235 of 2017, under Section 498A IPC, Police Station
Sultanpur Ghosh, District Fatehpur. The appellant, Tufail, is
acquitted of the charge under Section 498A IPC. He is on bail. He
need not surrender. His bail bonds are cancelled and sureties
stand discharged.
42. Criminal Appeal No. 1401 of 2020 filed by accused Suhail is
dismissed. The impugned judgment dated 14.01.2020 passed by
learned Additional Sessions Judge/F.T.C.-II, Fatehpur in Session
Trial No.119 of 2018 (State Vs. Suhail and another) arising out of
Case Crime No. 235 of 2017, under Sections 498A, 302 IPC,
Police Station Sultanpur Ghosh, District Fatehpur is affirmed. The

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CRLA No. - 1401 of 2020
appellant, Suhail, is in jail. He shall remain in jail to serve out the
sentence awarded to him by the learned Trial Court.
43. Let a copy of this judgment be transmitted to the learned
trial Court along with the trial Court records forthwith for
necessary compliance.
(Vinai Kumar Dwivedi,J.) (J.J. Munir,J.)
July 01, 2026
SHUBHAM
Digitally signed by :-
SHUBHAM KUMAR AGRAHARI
High Court of Judicature at Allahabad