2024 INSC 169 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1978 OF 2022

NAEEM …APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 1979 OF 2022

J U D G M E N T

B.R. GAVAI, J.

1. These appeals challenge the judgment and order dated

17

th December 2019, passed by the Division Bench of the

High Court of Judicature at Allahabad in Criminal Appeal

Nos. 1589 of 2018 and 7393 of 2017, whereby the Division

Bench dismissed both the criminal appeals preferred by the

appellants, namely, Pappi @ Mashkoor ( accused No.1),

Naeema (accused No.2) and Naeem ( accused No.3) and

upheld the order of conviction and sentence dated 24

th

October 2017 as recorded by the learned Sessions Judge,

2

Moradabad (hereinafter referred to as the ‘trial court’) in

Sessions Trial No. 260 of 2017.

2. Shorn of details, the facts leading to the present appeals

are as under:

2.1. On 1

st December 2016, the Police Station Katghar,

District Moradabad received a written report at 08:15 pm

which was a transcription of the complaint made by Shahin

Parveen (deceased) who had been admitted in the District

Hospital, Moradabad on 1

st December 2016, at 02:20 pm

with 80% deep thermal and facial burns. In her complaint,

the deceased had alleged that she had been set ablaze by the

accused/appellants who had been pressuring her into

entering the profession of immoral trafficking and

prostitution. On the basis of the written report (Ext. Ka-3), a

First Information Report (“FIR” for short) was registered at

Police Station Katghar, District Moradabad vide Case Crime

Number 1332 of 2016 for the offence punishable under

Section 307 of the Indian Penal Code, 1860 (hereinafter

referred to as “IPC”). On the same day, Raj Kumar Bhaskar

(PW-5), the then Naib Tehsildar, Sadar, Moradabad was

telephonically summoned by the Tehsildar to record the

3

statement of Shahin Parveen ( deceased), after she was

admitted in the hospital. Between the hours of 08:48 pm and

09:15 pm, dying declaration of Shahin Parveen (deceased)

(Ext. Ka-6) came to be recorded by PW-5. Subsequently, the

victim was admitted in Safdarjang Hospital, New Delhi on 2

nd

December 2016, where she eventually succumbed to her

injuries at 07:55 pm. Consequently, the Case Crime No. 1332

of 2016 was altered to the offence punishable under Section

302 of IPC. According to the Post-Mortem Report (Ext. Ka-

11), the cause of death was shock as a result of ante-mortem

burn injuries.

2.2. After the death of the husband of the deceased two

years prior to the incident, she had been residing at her

matrimonial house with her two children along with Pappi @

Mashkoor (accused No. 1) who was her brother-in-law (devar)

and his wife Naeema (accused No.2). Naeem (accused No.3) is

Naeema’s brother. The prosecution case is that, after the

death of the husband of the deceased , the

accused/appellants started pressuring her into entering the

profession of immoral trafficking and prostitution. As the

deceased did not concede to the same, she was physically

4

and sexually assaulted and asked to vacate the house. On

the day of the incident at about 01:30 pm, the

accused/appellants caught hold of the deceased and poured

kerosene on her. Pappi @ Mashkoor (a ccused No.1) and

Naeema (accused No.2) ignited the matchstick and threw it at

her. Thereafter, the accused/appellants surrounded her so

that she could not escape. On being set ablaze, the deceased

ran out of the house whereafter her neighbours put out the

fire and informed her mother and brother namely, Islam @

Babli (PW-2) who took her to the hospital. This version of

events was brought out in the complaint made by the

deceased which was transcribed by Faisal Zamal (PW-3). On

the basis of PW-3’s written report, bearing the thumb

impression of the deceased, the FIR came to be registered at

08:15 pm on 1

st December 2016. Thereafter, on the same

day, between 08:48 pm and 09:15 pm, PW -5 recorded the

dying declaration of the deceased (Ext. Ka-6) wherein she

stated that there was an outstanding dispute between her

and Pappi @ Mashkoor (accused No.1) with regards to the

partition of their shared residence. On the da te of the

incident at about 12:30 pm , another quarrel broke out

5

between the deceased and the accused/appellants, during

which accused No.1 poured kerosene on the deceased and

set her ablaze. He was accompanied and assisted by his wife

Naeema (accused No.2) and Naeem , brother of Naeema

(accused No.3). She was taken to the District Hospital,

Moradabad by her brother Islam @ Babli ( PW-2) and

thereafter shifted to Safdarjang Hospital, New Delhi, where

she eventually succumbed to her injuries.

2.3. After completion of the investigation, a charge-sheet

came to be filed before the Court of Chief Judicial Magistrate,

Moradabad. Since the case was exclusively triable by the

Sessions Court, the same came to be committed to the

learned Sessions Judge.

2.4. Charges came to be framed by the learned Sessions

Judge for the offences punishable under Sections 302 and 34

of the IPC. The accused pleaded not guilty and claimed to be

tried.

2.5. The prosecution examined 8 witnesses to bring home

the guilt of the accused persons. While Papi @ Mashkoor

(accused No.1) took the defence that he was absent from the

spot of the incident at the relevant time and that the

6

deceased had committed suicide since she was depressed

after the death of her husband, Naeema (accused No.2) and

Naeem (accused No.3) set up the defence of bare denial. The

defence did not lead any evidence.

2.6. At the conclusion of the trial, the trial court found that

the prosecution had proved the case against the

accused/appellants beyond reasonable doubt and

accordingly convicted them for offences punishable under

Sections 302 and 34 of the IPC and sentenced them to

undergo imprisonment for life along with fine.

2.7. Being aggrieved thereby, the accused/appellants

preferred appeals before the High Court. The High Court by

the impugned judgment dismissed the same and affirmed the

order of conviction and sentence awarded by the trial court.

Being aggrieved thereby, the present appeals.

3. We have heard Shri Mohd. Adeel Siddiqui, learned

counsel appearing on behalf of the appellants and Shri

Sharan Thakur, learned Additional Advocate General (AAG)

appearing on behalf of the respondent-State.

4. Shri Mohd. Siddiqui submits that the conviction is

7

based only on the dying declaration of the deceased (Ex. Ka-

6). He submits that the dying declaration (Ext. Ka-6) is not

free from doubt. It is submitted that the Discharge Slip (Ext.

Ka-7) would show that the deceased was discharged from the

District Hospital, Moradabad on 1

st December 2016 at 05:00

pm. It is therefore impossible that the dying declaration (Ext.

Ka-6) could have been recorded between 08:48 pm and 09:15

pm. The learned counsel therefore submits that the said

dying declaration (Ext. Ka-6) cannot be said to be

trustworthy, reliable and cogent so as to base the conviction

solely on the basis of the same.

5. Per contra, Shri Thakur submits that, both the trial

court and the High Court, on the c orrect appreciation of

evidence, rightly convicted the accused/appellants and as

such, no interference would be warranted with the

concurrent findings of the trial court and the High Court.

The learned AAG submits that Raj Kumar Bhaskar (PW-5),

the then Naib Tehsildar, has deposed about the dying

declaration (Ext. Ka-6). Shri Thakur submits that the dying

declaration (Ext. Ka-6) also contains the certification by Dr.

A.K. Singh, Emergency Medical Officer, District Hospital,

8

Moradabad regarding the medical fitness of the victim both

prior to and after recording the dying declaration (Ext. Ka-6).

6. Undisputedly, in the present case, the conviction is

based solely on the dying declaration (Ext. Ka-6). The law

with regard to conviction on the sole basis of dying

declaration has been considered by this Court in a catena of

judgments. After considering the earlier judgments, this

Court, in the case of Atbir v. Government of NCT of Delhi

1,

has laid down certain factors to be taken into consideration

while resting the conviction on the basis of dying declaration.

It will be apposite to refer to para (22) of the said judgment,

which reads thus:

“22. The analysis of the above decisions clearly

shows that:

(i) Dying declaration can be the sole basis

of conviction if it inspires the full

confidence of the court.

(ii) The court should be satisfied that the

deceased was in a fit state of mind at the

time of making the statement and that it

was not the result of tutoring, prompting

or imagination.

(iii) Where the court is satisfied that the

declaration is true and voluntary, it can

base its conviction without any further

corroboration.

1

(2010) 9 SCC 1 : 2010 INSC 491

9

(iv) It cannot be laid down as an absolute

rule of law that the dying declaration

cannot form the sole basis of conviction

unless it is corroborated. The rule

requiring corroboration is merely a rule of

prudence.

(v) Where the dying declaration is

suspicious, it should not be acted upon

without corroborative evidence.

(vi) A dying declaration which suffers

from infirmity such as the deceased was

unconscious and could never make any

statement cannot form the basis of

conviction.

(vii) Merely because a dying declaration

does not contain all the details as to the

occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is

not to be discarded.

(ix) When the eyewitness affirms that the

deceased was not in a fit and conscious

state to make the dying declaration,

medical opinion cannot prevail.

(x) If after careful scrutiny, the court is

satisfied that it is true and free from any

effort to induce the deceased to make a

false statement and if it is coherent and

consistent, there shall be no legal

impediment to make it the basis of

conviction, even if there is no

corroboration.”

7. It can thus be seen that this Court has clearly held that

dying declaration can be the sole basis of the conviction if it

inspires the full confidence of the court. The Court is

10

required to satisfy itself that the deceased was in a fit state of

mind at the time of making the statement and that it was not

the result of tutoring, prompting or imagination. It has

further been held that, where the Court is satisfied about the

dying declaration being true and voluntary, it can base its

conviction without any further corroboration. It has further

been held that there cannot be an absolute rule of law that

the dying declaration cannot form the sole basis of conviction

unless it is corroborated. It has been held that the rule

requiring corroboration is merely a rule of prudence. The

Court has observed that if after careful scrutiny, the court is

satisfied that it is true and free from any effort to induce the

deceased to make a false statement and if it is coherent and

consistent, there shall be no legal impediment to make it the

basis of conviction, even if there is no corroboration.

8. A perusal of the material placed on record would reveal

that Raj Kumar Bhaskar (PW-5), the then Naib Tehsildar has

deposed that he was directed by the Tehsildar on phone to

record the statement of the victim Shahin Parveen at the

District Hospital, Moradabad. He came to the hospital and

asked the Chief Medical Officer of the hospital about the

11

condition of the victim Shahin Parveen, who informed that

Shahin Parveen was in a sound condition and was also fit to

give her statement. He further deposed about the certificate

issued by the doctor. He also deposed that, after recording

the statement, the deceased put her thumb impression. He

has further deposed that the deceased answered in full sense

and she was understanding the questions. The deposition of

PW-5 would also reveal that he had taken care to ensure that

none of the relatives of the deceased were present when the

dying declaration (Ext. Ka-6) was being recorded.

9. Insofar as the contention of the learned counsel for the

appellants that the dying declaration (Ext. Ka-6) was

recorded between 08:48 pm and 09:15 pm and the Discharge

Slip (Ext. Ka-7) was issued at 05:00 pm is concerned, no

question was put to that effect in the cross-examination of

Raj Kumar Bhaskar (PW -5), the then Naib Tehsildar. As

such, his testimony, in spite of cross-examination, has gone

unchallenged on the material aspect of recording of the dying

declaration.

10. A perusal of the dying declaration (Ext. Ka-6) would

reveal that before recording the dying declaration (Ext. Ka-6),

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the victim was examined by Dr. A.K. Singh, Emergency

Medical Officer at District Hospital, Moradabad on 1

st

December 2016 at 08:45 pm, who has certified her to be fully

conscious and fit to give the statement. After the dying

declaration (Ext. Ka-6) was recorded, a certification by Dr.

A.K. Singh, Emergency Medical Officer at District Hospital,

Moradabad is recorded once again to the effect that the

deceased was fully conscious while giving the statement (Ext.

Ka-6). It can thus clearly be seen that the material placed on

record would reveal that the deceased was in a fit state of

mind at the time of making the statement and that it was not

the result of tutoring, prompting or imagination.

11. We have no reason to interfere with the concurrent

findings of fact that the dying declaration (Ext. Ka-6) is true

and free from any effort to induce the deceased to make a

false statement. The dying declaration (Ext. Ka-6) is coherent

and consistent and as such, there should be no legal

impediment to make it the basis of conviction without there

being any independent corroboration. We find that the dying

declaration (Ext. Ka-6) is cogent, trustworthy and reliable to

base the conviction on the same.

13

12. That leaves us with the question as to whether the

conviction of all the three accused is tenable or not.

13. It will be apposite to refer to the relevant part of the

dying declaration (Ext. Ka-6), which reads thus:

“Answer: I had been into a dispute with my devar

(husband’s younger brother) Mashkoor Hussain s/o

Maqdoom Hussain over partition of the house for

many days. Today i.e. 01.12.2016 at 12:30 O’clock

I had a quarrel with my devar over partition of the

house, during which he poured kerosene on me and

set me ablaze. In commission of the act, my devrani

(husband’s younger brother’s wife) Naeema Parveen

and her brother Naeem aided my devar (husband’s

younger brother). When they set my body ablaze, I

ran outside the house. People from the

neighbourhood doused fire engulfing my body and

saved me. Residents of the locality informed my

mother and brother, thereafter, my brother and

mother brought and admitted me to the hospital.”

14. The statement of the victim would therefore reveal that

the motive attributed by the deceased is to accused No. 1

Pappi @ Mashkoor. She stated that she had a quarrel with

her devar Pappi @ Mashkoor over partition of the house. It

can further be seen that the role of pouring kerosene on the

victim and setting her ablaze is also attributed to accused No.

1 Pappi @ Mashkoor.

15. Insofar as other two accused i.e. Naeema (wife of

accused No.1 Pappi @ Mashkoor) and her brother Naeem are

14

concerned, the statement of the victim only states that they

aided her devar Pappi @ Mashkoor. However, no specific role

of how they assisted accused No. 1 Pappi @ Mashkoor could

be found in the dying declaration (Ext. Ka-6). We therefore

find that, though the said dying declaration can be the sole

basis of maintaining the conviction of accused No. 1 Pappi @

Mashkoor, in the absence of any specific role attributed to

accused No. 2 Naeema and accused No. 3 Naeem, they are

entitled to the benefit of doubt.

16. In the result, we pass the following order:

(i) Criminal Appeal No. 1978 of 2022 qua appellant

Naeem and Criminal Appeal No. 1979 of 2022 qua

appellant Naeema are allowed. The order of

conviction and sentence dated 24

th October 2017

passed by the trial court and maintained by the

High Court vide impugned judgment and order

dated 17

th December 2019 in respect of the

aforesaid appellants is quashed and set aside.

They are acquitted of all the charges charged with

and are directed to be released forthwith if not

required in any other case

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(ii) Criminal Appeal No. 1979 of 2022 qua appellant

Pappi @ Mashkoor is dismissed.

17. Pending application(s), if any, shall stand disposed of.

….........................J.

(B.R. GAVAI)

….........................J.

(SANDEEP MEHTA )

NEW DELHI;

MARCH 05, 2024.