Mahnaz And Another vs State Of U.P.

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 4273 of 2022
Mahnaz and another
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Achchhey Lal Tiwari, Vinay Kumar
Tripathi
Counsel for Respondent(s) : G.A.
With
CRIMINAL APPEAL No. - 10 of 2022
Rashid
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Achchhey Lal Tiwari, Chandra
Kumar, Devendra Singh, Vinay
Kumar Tripathi
Counsel for Respondent(s) : G.A., Ghan Shyam Yadav
With
CRIMINAL APPEAL No. - 637 of 2022
Shabnam
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)

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CRLA No. - 4273 of 2022
Counsel for Appellant(s) : Achchhey Lal Tiwari, Chandra
Kumar, Devendra Singh, Vinay
Kumar Tripathi
Counsel for Respondent(s) : G.A.
With
CRIMINAL APPEAL No. - 5089 of 2022
Khalid
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Achchhey Lal Tiwari, Vinay Kumar
Tripathi
Counsel for Respondent(s) : G.A.
Court No. - 49
HON'BLE AJAY BHANOT, J.
HON'BLE DIVESH CHANDRA SAMANT, J.
[PER: HON'BLE AJAY BHANOT, J.]
1. The instant appeals arise out of a common judgment dated
06.09.2021 rendered by the learned Sessions Court in Sessions
Trial No.- 419 of 2019, State vs. Khalid and Ors.
2. The learned trial court by the impugned judgment has found
the appellants guilty of the offences under Section 302/149
I.P.C. and has imposed a punishment of life imprisonment and
fine of Rs. 10,000/-, and in default of payment of fine
additional 3 months simple imprisonment has been imposed.
The period spent in jail by the accused during the trial shall be
merged against the sentence.

3
CRLA No. - 4273 of 2022
3. All four appeals are being heard and decided together. The
following appellants in the respective appeals are before this
Court:
(a). Mahnaz and Jayara @ Shayara Bano are appellants in
Criminal Appeal No.- 4273 of 2022.
(b). Rashid is the appellant in Criminal Appeal No.- 10 of 2022.
(c). Khalid is the appellant in Criminal Appeal No.- 5089 of
2022.
(d). Shabnam is the appellant in Criminal Appeal No.- 637 of
2022.
F.I.R- Prosecution Case
4. Briefly put the prosecution case set out in the F.I.R. is that
about four years ago the first informant’s daughter had got
married to Khalid as per Muslim rites. Sometime after the
marriage, her husband and in-laws started demanding Rs. 1
lakh and a motor cycle. Since the first informant could not
make good the dowry demands due to financial incapacity her
daughter was constantly harassed by her in-laws. She continued
to endure the torture. Zubia’s husband and in-laws threatened to
murder her in case the dowry demands were not fulfilled. Her
husband would then solemnize another marriage.
5. On 19.02.2017 when she was assaulted by her in-laws she
confessed the inability of her family to satisfy their demands. In
the morning her brother-in-law Rashid flung her to the ground
and her husband’s sisters Mahnaz and Shehnaz bound down her
hands. Her husband poured the kerosene oil on her and set her
on fire.

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CRLA No. - 4273 of 2022
6. The FIR further states that the accused persons locked the
door from outside and left the victim to burn. After sometime,
in the certain belief that the deceased would have died and in
order to create an alibi for themselves they rushed her to the
hospital and informed the first informant. The first informant on
reaching the district hospital dialed the emergency police
number. Police authorities reached the site in response to the
call. The statement of the victim was taken down by the City
Magistrate in the presence of the police personnel. After the
recording of the statement the victim was referred to Bareilly.
However due to paucity of funds proper medical aid could not
be given to her and the condition of the victim deteriorated. The
victim in that condition was again threatened by her husband
that in case any action was taken, her whole family would be
burnt to death. The first informant was informed by the victim
about the aforesaid threat in presence of the police personnel.
7. Pursuant to the FIR police investigations were set on foot. A
charge sheet was filed against the accused persons under
Sections 498A and 304B I.P.C. and Sections 3 and 4 of Dowry
Prohibition Act, 1961 on 23.07.2017. Cognizance of the
offences was taken by the learned trial court on 22.10.2019.
Charge :
8. Charges were framed against the accused persons on
18.11.2019 which read as under:
“आरोप
, , , - , , ,
मैं राम बाबू शर्मा सत्र न्यायाधीश शाहजहाँपुर आप खालिद राशिद महनाज शबनम
:-
तथा जायरा उर्फ सायरा बानो के विरूद्ध निम्नलिखि त आरोप विरचित करती हूँ
-
प्रथम यह कि वादी श्रीमती शमा परवीन की पुत्री जुबिया की शादी खालिद के साथ चार वर्ष पूर्व
07-03-2017
होने के बाद से लेकर दिनांक को जुबिया की मृत्यु होने तक विभिन्न देनांकों व समय पर

5
CRLA No. - 4273 of 2022
, ,
आप सभी ने अपने निवास स्थान मो० अलीजई थाना सदर बाजार जिला शाहजहाँपुर में जुबिया से
दहेज की माँग की एवं उक्त मॉग पूरी न होने पर आप सभी के द्वारा उसके साथ मारपीट कर उसे
शारीरिक व मानसिक रूप से परेशान किया गया। इस प्रकार आप लोगों द्वारा ऐसा अपराध कारित
, 498-
किया गया जो कि भा०दं०सं० की धारा ए के अधीन दण्डनीय अपराध है और इस न्यायालय के
प्रसंज्ञान में है।
- ,
द्वितीय यह कि उपरोक्त दिनांक समय व स्थान पर आप सभी के द्वारा अपने सामान्य आशय के
अग्रसर में जुबिया से दहेज की मॉग करने व उस मॉग के पूरी न होने पर उसे शारीरिक व मानसिक
07-03-2017
रूप से प्रताड़ित करके विवाह के चार वर्ष के अन्दर दिनांक को मिटटी का तेल डालकर
आग लगाकर किसी समय अपने निवास उपरोक्त पर जुबिया की हत्या कारित कर दी गयी। इस
, 304-
प्रकार आप लोगों द्वारा ऐसा अपराध कारित किया गया जो कि भा०दं०सं० की धारा बी के
अधीन दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।
विकल्प में
07-03-2017
यह कि उपरोक्त दिनांक को समय अदम तहरीर स्थान अपने निवास उपरोक्त पर आप
लोगों द्वारा सामान्य आशय के अग्रसर में वादी की पुत्री जुबिया की दहेज की मांग के कारण अथवा
,
अन्यथा साशय हत्या कारित कर दी गयी। इस प्रकार आप लोगों द्वारा ऐसा अपराध किया गया जो
302 34
कि भा०दं०सं० की धारा सपठित धारा के अधीन दण्डनीय अपराध है और इस न्यायालय के
प्रसंज्ञान में है।
-
तृतीय यह कि वादी श्री श्रीमती शमा परवीन की पुत्री जुबिया की शादी खालिद के साथ चार वर्ष पूर्व
07-03-2017
होने के बाद से लेकर दिनांक को जुबिया की मृत्यु होने तक विभिन्न दिनांकों व समय
, ,
पर आप सभी ने अपने निवास स्थान मो० अलीजई थाना सदर बाजार जिला शाहजहाँपुर में जुबिया
से दहेज में एक लाख रूपये व मोटर साइकिल की माँग की। इस प्रकार आप लोगों द्वारा ऐसा अपराध
, 3/4
कारित किया गया जो कि धारा दहेज प्रतिषेध अधिनियम के अधीन दण्डनीय अपराध है और
इस न्यायालय के प्रसंज्ञान में है।
एतद्वारा मैं आप लोगों को निर्देश देता हूँ कि न्यायालय द्वारा किया जायेगा। उक्त आरोपों में
आपका परीक्षण इसी न्यायालय द्वारा किया जाएगा। ”
9. The following accused persons were charged by the learned
trial court on 18.11.2019:
(a) Mahnaz, sister-in-law and Jayara @ Shayara Bano, mother-
in-law of the deceased who are the appellants in Criminal
Appeal No.- 4273 of 2022.
(b) Shabnam, sister-in-law of the deceased who is the appellant
in Criminal Appeal No.- 637 of 2022.
(c) Khalid, husband of the deceased who is the appellant in
Criminal Appeal No.- 5089 of 2022.
(d) Rashid, brother-in-law of the deceased who is the appellant
in Criminal Appeal No.- 10 of 2022.

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CRLA No. - 4273 of 2022
10. The accused persons pleaded not guilty to the charges and
the case went to trial.
Tabular form of evidences
11. Tabular charts depicting evidences adduced by prosecution
during the trial are as under:
Oral Evidence:- List of prosecution witnesses
Prosecution Witnesses
Sr. No. Witness No. Witness Name Nature of Witness
1. PW-1 Shama Parveen First Informant (Hostile)
2. PW-2 Manzoor Father of deceased (Hostile)
3. PW-3 Shaanu Sister of deceased (Hostile)
4. PW-4 Yameen Brother in law of deceased
5. PW-5 Israr@Nanhe Maternal Uncle of the
deceased (Hostile)
6. PW-6 Sanjay Kumar Naib Tehsildar who
recorded the dying
declaration of the deceased.
7. PW-7 Dr. Anurag
Parashar
Doctor who evaluated the
victim for her fitness to give
dying declaration
8. PW-8 Latesh Verma Ist Investigating Officer
9. PW-9 Avanishchar
Chand Srivastav
IInd Investigating Officer-
STF
10. PW-10 Jabar Singh Head Constable who
narrated the Chik FIR
11. PW-11 Dr Devendra
Singh
Doctor who conducted the
postmortem
12. PW-12 Sumit Shukla Circle Officer who arrested
the accused Shabnam and
Mahnaz
Documentary evidences:
Sr. No. Documents Proved by Date Exhibit No.
1. Written Report PW-1 20.02.2017 Exh Ka-1
2. Panchayatnama of
deceased
PW-2 07.03.2017 Exh Ka-2
3. Dying Declaration PW-6 19.02.2017 Exh Ka-3
4. Site Plan made by
PW-8
PW-8 02.03.2017 Exh Ka-4

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CRLA No. - 4273 of 2022
5. Site Plan made by
PW-9
PW-9 11.04.2017 Exh Ka-5
6. Carbon Copy of GD
No. 21
PW-10 20.02.2017 Exh Ka-6
7. Chik FIR PW-10 20.02.2017 Exh Ka-7
8. postmortem Report PW-11 07.03.2017 Exh Ka-8
9. Chargesheet PW-12 23.07.2017 Exh Ka-9
FIR:
12. The FIR was got registered on 20.02.2017 at 13.10 hours as
Case Crime No. 1060 of 2017 at P.S. Sadar Bazar District
Shahjahanpur under Section 498-A, 307 I.P.C. and Section 3/4
D.P. Act. The tehrir tendered by the first informant before the
police was proved by her and marked as Exh. Ka 1. On the
basis of the tehrir which was received at the police station on
20.02.2017 at 13:10 hours Head constable Jabar Singh /P.W. 10
had dictated the chik to Constable 1484 Manish Kumar who
reduced the same to writing. PW-10 proved the F.I.R which was
marked as Exh. Ka 7. P.W. 10 also stated that he had made G.D.
entry no.21 consequent to the lodgement of the FIR in his hand
writing. P.W. 10 identified his handwriting and signatures on
the carbon copy of G.D. entry no.21 in the trial court record and
proved the same. Carbon Copy of the G.D. entry no.21 was
marked as Exh. Ka 6.
Hospitalization of the victim at District Hospital,
Shahjahanpur:
13. After the incident, the victim was rushed to the district
hospital Shahjahanpur by her husband. This fact is recorded in
the FIR and also stated in the deposition of P.W. 6 Sanjay
Kumar, Naib Tehsildar. P.W. 1-Shama Parveen, P.W. 2-
Manjoor, and P.W. 3-Shaanu testified that the deceased’s

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CRLA No. - 4273 of 2022
husband and in-laws had rushed her to District Hospital,
Shahjahanpur after she sustained burn injuries.
14. However, it is noteworthy, that no records pertaining to the
hospitalization and treatment of the victim including her bed
head ticket, medical sheet drawn up by the attending doctor
have been produced by the prosecution. Absence of the bed
head ticket was also admitted by P.W. 7/Dr. Anurag Parashar
under cross-examination. The statement of the doctor who had
attended to the victim and provided her medical aid and had
drawn up the medical case sheet was also never recorded. The
said doctor was not produced as the prosecution witness during
the trial.
Hospitalization at the Civil Hospital Lucknow:
15. Later on the victim was shifted to the Civil Hospital,
Lucknow where she died at 6:45 am on 07.03.2017. The
documents or evidence referring the deceased to Civil Hospital,
Hazratganj, Lucknow are not part of prosecution evidence.
Medical case sheet or treatment details and statements of
doctors treating the deceased at Civil Hospital, Lucknow have
also not been adduced as evidence by the prosecution. The
doctors who attended the victim at Civil Hospital Lucknow also
did not enter the witness box as prosecution witnesses.
Inquest Report:
16. Information regarding death of the deceased was sent by
ward boy, Jaggu working at Civil Hospital, Lucknow at 7:30
am on 07.03.2017 to the police station. Recitals in the inquest
report disclose that ward boy-Jaggu had also informed the
police authorities that the victim was under treatment for burn
injuries at the Civil Hospital, Hazratganj, Lucknow. The inquest

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CRLA No. - 4273 of 2022
proceedings commenced on 07.03.2017 at 13:05 hours and
concluded at 13:45 hours. The inquest was conducted by V.P.
Verma, Additional City Magistrate-V, Lucknow at Civil
Hospital, Hazratganj, Lucknow. The inquest report was proved
by Manjoor father of the deceased and a witness to inquest
report. The inquest report was then marked as Exh. Ka 2.
17. Witnesses to inquest report include P.W. 2-Manjoor, the
father of the deceased, P.W. 3-Shaanu, brother of the deceased,
P.W. 4-Yameen, brother-in-law of the deceased and P.W. 5-Israr
@ Nanhe, maternal uncle of the deceased.
18. P.W. 5 in his deposition before the trial court has baldly
stated that he had signed some documents at the time of inquest
proceedings. The opinion of the Panchas in the inquest report
have not been proved by the prosecution.
Site Plan
19. S.I. Latesh Verma/ I.O./P.W.8 has stated that he has drawn
up the site plan which was then proved by him and marked as
Exh. Ka-4
20. P.W.8 does not disclose at whose pointing out the site plan
was drawn up. The second site plan was drawn up by S.I.
Abhinash Chandra Srivastava/P.W.9. also proved the site plan
which was marked as Exh. Ka-5. P.W. 9 also did not state the
name of the person at whose pointing out the site plan was
drawn up. Both documents do not add value to the prosecution
case and no reliance can be placed on them.
Postmortem Report:
21. The inquest report records that documentations like letter to
C.M.O, Challan Nash, Photo Nash, Sample Seal, death memo
were finalized and the body was stitched wrapped, sealed and

10
CRLA No. - 4273 of 2022
made over to Constable 2521 C.P. Ram Kishore Singh Chandel
and M.H.G No. 1811 Suman Lata and H.G. No. 1174 Nirupam
Mishra. The latter police personnel took the body to the
hospital for postmortem.
22. The postmortem proceedings commenced on 07.03.2017 at
03:45 PM and concluded on 07.03.2017 at 04:10 PM. The
postmortem was conducted by Dr. Devendra Singh and Dr. G.P.
Gupta. The postmortem report and its contents were proved by
Dr. Devendra Singh/P.W.11. The postmortem report was then
marked as Ex. Ka-8. The relevant extracts of the postmortem
report depicting the antemortem injuries, cause of death and
time of death are extracted hereinunder:-
“ Ante mortem Injuries :
Superficial to deep septic burn on all over the body except top of the head,
whole of the back. Both buttock and back of both lower limb, both feet and
sole. Pus slough, debris present in the wound
On opening and section cutting of both lungs, liver, spleen and both kidney
multiple pus foci seen.
Cause of Death : Septicimia due Ante mortem burn injury as noted
Time of death : 6:45 am on 07.03.2017”
First Dying Declaration:
23. The first statement of the victim (later treated as the dying
declaration) was recorded on 19.02.2017 at 12:20 PM by the
P.W. 6/Sanjay Kumar who was posted as Naib Tehsildar, Sadar,
District Shahjahanpur at the relevant time. P.W. 6 stated that he
was nominated to record the statement of the deceased. P.W. 6
then testified that he recorded the victim’s statement made
before him at District Hospital, Shahjahanpur on 19.02.2017.
P.W. 6 proved the dying declaration and its contents. The
document was marked as Exh. Ka 3.

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CRLA No. - 4273 of 2022
24. Dr. Anurag Parashar who had endorsed his medical opinion
on the dying declaration regarding the fitness of the victim/later
deceased to give a statement deposed as P.W.-7. P.W.-7 testified
that the victim had burn injuries when she was brought to the
District Hospital. After he had conducted a full mental and
medical examination of the victim, he found her to be in a fit
condition to give her statement. She was fully conscious when
her statement was recorded. P.W. 6 identified the medical
certificates given by him in the records of the trial court.
25. P.W. 7 has identified his signatures on the two certificates of
fitness recorded by him in the dying declaration. The aforesaid
two certificates at the beginning and at the conclusion of the
dying declaration were proved by PW 7 which was marked as
Exh. Ka 3.
Second Dying Declaration:
26. P.W. 8-S.I. Latesh Verma/I.O. had deposed that he had
recorded that statement of the victim (later deceased) on
04.03.2017. The said statement of the victim (later deceased)
was in fact the second dying declaration but was never
produced before the trial court by the prosecution.
Oral Testimonies:-
27. The prosecution witnesses namely Shama Parveen mother
of the deceased/informant/PW-1, Manjoor father of the
deceased/PW-2, Shaanu brother of the deceased/PW-3 have
repudiated the prosecution case in their testimonies before the
trial court. The aforesaid witnesses were declared hostile at the
instance of the prosecution. PW-4, Yameen, who is brother in

12
CRLA No. - 4273 of 2022
law of the deceased refuted the prosecution case in his
testimony while under cross-examination.
Submissions from the Bar:
Arguments on behalf of appellants:
28. Shri I.K. Chaturvedi, learned Senior Counsel and Amicus
Curiae assisted by Shri Ali Jamal Khan, learned counsel for the
appellants and Amicus Curiae made the following submissions:
I. All material prosecution witnesses have repudiated the
prosecution case. The witnesses of fact have thus not supported
the prosecution case during the trial.
II. The dying declaration is unreliable.
III. The prosecution deliberately suppressed the second dying
declaration made by the deceased before the Investigating
Officer. An adverse inference is liable to be drawn against the
prosecution for suppressing the material evidence since it
would have been adverse to the prosecution.
IV. The prosecution has failed to prove its case beyond
reasonable doubt.
V. The prosecution does not disclose commission of any
offence under the alternative charge under Section 304-B, 498-
A IPC read with Section 3/4 of Dowry Prohibition Act.
Arguments on behalf of State:
29. Shri Rishi Chaddha, learned AGA have vehemently
opposed the submissions of learned Senior Counsel and has
made following submissions:

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CRLA No. - 4273 of 2022
I. The dying declaration is reliable and can be the sole basis of
the convicting the appellants.
II. The second dying declaration was not produced since the
first one was of impeccable credibility. 
III. The dying declaration is relevant and was duly proved by
the prosecution.
IV. The prosecution has proved its case beyond reasonable
doubt.
V. Even if the appellants are found to be innocent of the charges
under Section 302 IPC, they can still be convicted under
Section 304-B, 498-A IPC read with Section 3/4 of Dowry
Prohibition Act. The evidence in the record is sufficient to bring
home the charges under Section 304-B, 498-A IPC read with
Section 3/4 of Dowry Prohibition Act.
Appraisal of Evidence:
30. All material witnesses of fact have repudiated the
prosecution case against the appellants. Hence the said
witnesses do not lend any support to the prosecution case. The
only piece of incriminating evidence is the dying declaration of
the deceased recorded on 19.02.2017 at 12:20 P.M. by
PW-6/Sanjay Kumar/Nayab Tehsildar. The prosecution case
turns entirely on the credibility of the dying declaration.
Dying Declaration:
31. The contents of the dying declaration are as under:
“मृत्यु पूर्व बयान
, 22 , - , - ,
श्रीमती जूबिया डब्लू ओ खालिद उम्र वर्ष निवासी अलीजई पीएस सदर बाजार
जिला शाहजहांपुर।

14
CRLA No. - 4273 of 2022
- ?
प्रश्नः कैसे जली
- , , , ,
उत्तर मेरे ससुराल वाले जिनमें मेरा पति खालिद उनके भाई राशिद मेरी सास सायरा मेरी
ननद शबनम व मयनाज ने मिलकर मिट्टी के तेल डालकर आग लगा दी।
- ?
प्रश्न कौन बचाया
-
उत्तर किसी ने नही बचाया।
- ?
प्रश्न अस्पताल में कौन भर्ती कराया
-
उत्तर मुझे पता नही।
- ? ?
प्रश्न तुम्हे यह लोग क्यों जलाये व परेशान करते थे
-
उत्तर क्यों जलाया यह पता नही। लेकिन यह लोग परेशान करते थे।
- ?
प्रश्न इस घटना का कौन जिम्मेदार है
- , , ,
उत्तर इस घटना का मेरे पति खालिद उनका भाई राशिद मेरी सास सायरा मेरी ननद
शबनम व दूसरी ननद मयनाज ने मिलकर जलाया। इसीलिए यह लोग जिम्मेदार है।
बयान बिना जोर दबाव के स्वीकार किया।”
32. The dying declaration is predicated by an endorsement
made by Dr. Anurag Parashar/PW-7 that the deceased Jubia
aged about 22 years was in a fit condition to give her
statements. In her dying declaration the deceased stated that her
in-laws including her husband Khalid, her brother-in-law
Rashid, her mother-in-law Saayra, her sister-in-laws Shabnam
and Mahnaz had poured kerosene oil on her and set her on fire.
No one attempted to save her. She did not remember who
brought her to the hospital. She did not know why she was set
on fire, however she later added that the accused persons used
to harass her. According to the victim’s dying declaration all
accused persons had set her on fire and they were responsible
for the act. She did not give the statement under threat or
coercion.
33. Dying declarations have been accorded acceptability by
statute and judicial pronouncements alike. The consistent

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CRLA No. - 4273 of 2022
jurisprudential rationale for accepting dying declarations is that
a declaration is made at the point of imminent death and the
expectation of impending death inspires a person to speak only
the truth. The solemnity of the occasion on death bed provides
the assurance of veracity of the statement thus precludes
possibilities of falsity.
34. A Constitution Bench of the Supreme Court in Laxman vs.
1
State of Maharashtra while reiterating the aforesaid time
honoured principles for accepting dying declarations also
emphasized the cautions to be exercised by Courts while
appraising a dying declaration for its veracity and set forth the
following proposition of law:
“ 3.  The juristic theory regarding acceptability of a dying
declaration is that such declaration is made in extremity, when the
party is at the point of death and when every hope of this world is
gone, when every motive to falsehood is silenced, and the man is
induced by the most powerful consideration to speak only the
truth. Notwithstanding the same, great caution must be exercised
in considering the weight to be given to this species of evidence
on account of the existence of many circumstances which may
affect their truth. The situation in which a man is on the deathbed
is so solemn and serene, is the reason in law to accept the veracity
of his statement. It is for this reason the requirements of oath and
cross-examination are dispensed with. Since the accused has no
power of cross-examination, the courts insist that the dying
declaration should be of such a nature as to inspire full confidence
of the court in its truthfulness and correctness. The court, however,
has always to be on guard to see that the statement of the deceased
was not as a result of either tutoring or prompting or a product of
imagination. The court also must further decide that the deceased
was in a fit state of mind and had the opportunity to observe and
identify the assailant. 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,
1 2002 6 SCC 710

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CRLA No. - 4273 of 2022
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. In most cases, however, such statements are made
orally before death ensues and is reduced to writing by someone
like a Magistrate or a doctor or a police officer. When it is
recorded, no oath is necessary nor is the presence of a Magistrate
absolutely necessary, although to assure authenticity it is usual to
call a Magistrate, if available for recording the statement of a man
about to die. 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
truthful. A certification by the doctor is essentially a rule of
caution and therefore the voluntary and truthful nature of the
declaration can be established otherwise.”
35. More recently, Laxman (supra) was cited with approval by
the Supreme Court in Irfan @ Naka vs. State of Uttar
2
Pradesh .
36. The broad acceptance of dying declarations are thus
caveated by strong cautions that are to be observed while
determining the truth of such statements. Expectation of
imminent death and extinguishment of hopes to survive
induced by the grievous nature of injuries or parlous medical
condition of the person are the prerequisites of bringing the
statement of such person within the fold of a dying declaration.
2 2023 SCC OnLine SC 1060

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CRLA No. - 4273 of 2022
Imaginary fears of death which do not have any medical basis
cannot be invoked to qualify a statement as a dying declaration.
37. There are some inherent limitations of dying declarations.
The facts that the author of the dying declaration is never
subjected to cross-examination is an aspect which cannot be
neglected while appraising such a statement.
38. The proposition that solemnity of the near death experience
is most conducive to telling the truth is a judicial principle
which is tempered by judicial experience. The serenity of
human mind facing fast approaching end of human life is not an
iron clad guarantor of truth. While anticipating death moments
of serenity can also be times of turmoil. Petty emotions of
vindictiveness, imaginary fears, faults of subjectivity may make
insistent demands on vulnerable minds and lead to falsehoods.
A searching scrutiny of evidences in the records has to be made
before finding on the reliability of the dying declaration is
made.
39. The question now arises as to whether the aforesaid dying
declaration in the facts and circumstances of this case can be
the sole basis for convicting the accused persons.
40. Determination of credibility of the dying declaration has to
be predicated by an examination of the medical condition of the
deceased. More specifically it has to be established whether the
deceased was in expectation of imminent death when she gave
her statement. The prosecution has not produced any evidences
documentary regarding hospitalization of the deceased
including the bedhead ticket after she was rushed to the hospital
on sustaining burn injuries. Medical case sheet of the deceased

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CRLA No. - 4273 of 2022
depicting the line of treatment has not been tendered in
prosecution evidence. The doctors who had administered the
medical aid too were not produced as witnesses. It is
noteworthy that even the postmortem report does not depict the
percentage of burn injuries. In such a situation the actual
medical condition of the deceased remains vague.
41. From the available evidence, no accurate finding can be
recorded regarding the medical condition of the victim prior to
her death. In absence of evidence pertaining to the gravity of
the victim’s medical condition this Court is unable to find
whether the injuries were fatal enough to foreclose possibilities
of survival and grave enough to induce the expectation of
imminent death. The conditions precedent for treating statement
of the deceased as a dying declaration have not been
established by the prosecution.
42. Moreover, in the dying declaration the deceased implicated
her husband and all members of his family by making broad
and sweeping allegations. The failure to provide relevant details
and assign particular roles to accused persons dents the
credibility of the dying declaration. It appears that the intent of
the dying declaration is more to wreak vengeance on the
husband and his family than to state the truth. The generalized
description of the incident given in the dying declaration makes
it unsafe for the Court to rely on the same to convict the
appellants.
43. The victim’s denial in the dying declaration about
knowledge of the person who brought her to the hospital lacks
credibility. The incident occurred in the morning of 19.02.2017.
The victim’s family including her mother spoke to the victim

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CRLA No. - 4273 of 2022
before lodgement of the FIR and recording of the dying
declaration. The FIR clearly discloses that the victim was
brought to the hospital by her husband and his family members.
The victim’s version as given to her mother is depicted in the
FIR. The victim’s mother/PW-1 and other members of her
family including PW-2, PW-3 have consistently testified before
the trial court that the victim’s husband and his family has
brought her to the hospital. P.W. 7-Dr. Anurag Parashar had
testified that the victim (later deceased) was fully conscious and
alert while giving the statement. In these circumstances it
cannot be believed that the victim was unaware that her
husband brought her to the hospital.
44. The victim in the dying declaration initially states that she
was not aware of the motive of accused persons to commit the
offence. The statement was later qualified to same the failing
prosecution case, when the victim added that she was harassed
by all the accused. The motive ascribed in the dying declaration
is weak, vague and an afterthought. The said motive depicted in
the dying declaration is not sufficiently strong to commit a
heinous crime and is not worthy of any credence.
45. Prosecution case set out in the F.I.R. itself contradicts the
dying declaration inasmuch as the two accused persons namely
mother in law Shayara and sister in law Shabnam who are not
named in the F.I.R. were introduced by the deceased in her
dying declaration. The contradiction gains importance in view
of the fact that the first informant had spoken to the deceased
prior to lodgement of FIR. The mother in law has been assigned
the role of pouring kerosene in the dying declaration. The first
informant could not have missed the fact of such importance

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CRLA No. - 4273 of 2022
while lodging the F.I.R. The mother-in-law was evidently
nominated as an afterthought.
46. The presence of P.W. 7 at the time of recording of the dying
declaration is inconsistent with the testimony of P.W. 6. P.W. 6
under cross-examination testified that he had asked all the
people to leave the room at the time he was recording the dying
declaration. Hence presence of P.W. 7 at the time of recording
of the dying declaration and his testimony that the victim was
awake and conscious at the time of her statement become
doubtful.
47. Another fault line in the prosecution case is that the second
dying declaration of the deceased was recorded on 04.03.2017
by the Investigating Officer/P.W.8. The prosecution has
however chose to suppress the aforesaid dying declaration and
has not produced the same as evidence before the trial court.
No cogent reason has been given by the prosecution regarding
the failure to produce the said statement. The aforesaid dying
declaration was a material piece of evidence and prosecution
cannot escape the consequences of suppressing the same.
48. In the wake of the preceding discussions, the pre-conditions
for drawing an adverse inference against the prosecution as
contemplated under Section 114(g) of the Indian Evidence Act
are fully satisfied. This Court hence draws an adverse inference
against the prosecution by holding that in the event such dying
declaration would have been adverse to the case of the
prosecution.
49. Furthermore, the contents of the dying declaration that the
harassment by the in laws are clearly contradicted by the

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CRLA No. - 4273 of 2022
testimonies of P.W.1, P.W.2, P.W.3 and P.W.5 i.e. all material
prosecution witnesses of fact. The critical and incriminating
aspects of the dying declaration are completely negated by the
testimonies of P.W.1, P.W.2, P.W.3 and P.W.5 as regards the
harassment of the deceased by her in laws.
50. It is equally noteworthy that the P.W.1, P.W.2, P.W.3 and
P.W.5 have also testified that the deceased was a person of
extreme temperamental behavior and was prone to suicidal
tendencies. The veracity of the dying declaration is also
required to be seen in the context of the testimonies of the
aforesaid material witnesses of fact. Apart from the burns or
injuries from forceful assault or resistance no other ante-
mortem injuries are depicted in the postmortem report. A
composite reading of the aforesaid evidences negatives the
prosecution case which hinges only the dying declaration.
51. The testimonies of PW 1, PW 2, PW 3 and PW 5 do not rule
out the possibility of the deceased committing suicide or the
death being caused in an accident resulting from aggravated
behaviour of the deceased.
52. The first informant/PW-1 in the FIR has admitted that the
deceased’s condition deteriorated due to lack of sources and
inability to access quality medical care. The possibility of the
death due to septicemia from ante-mortem burns being caused
by medical negligence or inadequate medical care cannot be
ruled out. In fact the percentage of burn injuries is not recorded
in the postmortem report.

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CRLA No. - 4273 of 2022
53. In the wake of the preceding discussion it cannot be ruled
out that the victim had nominated all the accused persons out of
vindictiveness arising from matrimonial differences. The dying
declaration has been repeatedly impeached by inherent
contradictions, vague generalizations, testimonies of material
prosecution witnesses. The other attending facts and
circumstances of the case which are exculpatory in nature
further impair the credit of the dying declaration discussed in
the preceding part of the narrative. In such circumstances the
dying declaration lacks reliability and is completely
disbelieved. They dying declaration is the sole pivot of the
prosecution case. After the dying declaration is discarded, the
prosecution case has no legs to stand on.
54. Last but not the least the conduct of the appellants is of
utmost importance in the facts of this case. It is admitted in the
F.I.R. as well as the testimonies of all prosecution witness that
the deceased was rushed to the hospital by her husband-Khalid
and his family members for urgent medical treatment. The
husband of the deceased also informed the in-laws about the
incident with promptitude. Conduct of the husband of the
deceased-Khalid as well his family members appears to be
bonafide.
55. In the wake of the preceding discussion this court finds that
the dying declaration of the deceased is unreliable. Further, in
light of other attending facts and evidences which are
exculpatory in nature the dying declaration is liable to be
discarded.
Judgement of trial court

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CRLA No. - 4273 of 2022
56. The learned trial court erred in law by relying on the said
dying declaration (which has been found to be unreliable) to
enter a verdict of conviction under Section 302/149 IPC against
the appellants.
57. The judgment rendered by the learned trial court is perverse
and contrary to the evidences in the record. The impugned
order dated 06.09.2021 in Sessions Trial No. 419 of 2019 (State
Vs. Khalid and others) is liable to be set aside and is set aside.
Alternative Charges:
58. Allegations of dowry demand and harassment due to failure
to make good the demand could not be established by the
prosecution. All prosecution witnesses refuted the case of
dowry demands set out in the F.I.R. Furthermore, the deceased
in her dying declaration too did not assert that any dowry
demand was made upon her and that she was tortured for the
same.
59. Demands of dowry and harassment of deceased for dowry
by accused at a time immediately preceding her death have not
been proved by the prosecution. There is complete absence of
prosecution evidence to establish the said foundational facts to
draw the presumption of a dowry death under Section 304-B,
498-A IPC read with Section ¾ of Dowry Prohibition Act. The
evidence in the record does not support the prosecution case
under Section 304B IPC and the charge under Section 304-B,
498-A IPC read with Section 3/4 of Dowry Prohibition Act is
liable to fail.

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CRLA No. - 4273 of 2022
Conclusions:
60. This Court finds that the prosecution has failed to prove the
charges under Sections 302/34 and 304 IPC beyond reasonable
doubt. The accused/appellants are acquitted of the charges
which were laid against them before the trial court and which
are the subject matter of this appeal.
61. The accused persons namely Mahnaz and Jayara @ Shayara
Bano, Rashid, Khalid and Shabnam are honourably acquitted.
62. Bail bonds and sureties of the appellants are discharged.
63. All the Criminal Appeals are allowed .
64. A copy of this judgment translated in Hindi to be served
upon the appellants by the Secretary, District Legal Services
Authority.
(Divesh Chandra Samant,J.) (Ajay Bhanot,J.)
July 3, 2026
Ashish/Dhananjai/Vandit
Digitally signed by :-
ASHISH NAYAN TRIPATHI
High Court of Judicature at Allahabad