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       AFR

      Court No.­ 43

      Reserved on:­ 13.11.2019

     Delivered on:­ 17.12.2019

Criminal Appeal No.­1589/2018

Appellant:­  1. Pappi @ Mashkoor, & 

2. Smt. Naeema

Respondent :­  State of U.P.

Counsel for Appellant :­ Raj Kumar Khanna, Amber 

Khanna

Counsel for Respondent :­ A.N. Mulla, Deepak Mishra, 

A.G.A.'s

With

    Criminal Appeal No.­7393/2017

Appellant:­  Naeem

Respondent :­  State of U.P.

Counsel for Appellant :­ Raj Kumar Khanna, Amber 

Khanna

Counsel for Respondent :­ A.N. Mulla, Deepak Mishra, 

A.G.A.'s

Hon'ble Pankaj Naqvi,J.

Hon'ble Suresh Kumar Gupta,J.

(Delivered by Pankaj Naqvi, J)

These criminal appeals are preferred against the

judgment and order dated 24.10.2017, passed by the

Sessions Judge, Moradabad, in S.T No.260/2017 (State vs.

Pappi @ Mashkoor and others), arising out of Case Crime

No.1332/2016, convicting / sentencing appellants under

Sections 302/34 to life along with fine of Rs.25,000/-.

The prosecution case is as under:

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1. An FIR dated 1.12.2016, arising out of Case Crime

No.1332/2016, under Sections 307 IPC, P.S. Katghar,

Moradabad, lodged by the informant, alleged that accused

Pappi @ Mashkoor (brother-in-law), Naeema (sister-in-law)

and Naeem (brother of Naeema) were harassing her to

indulge in flesh trade as her husband had expired around 2

years ago, the informant (victim) refused to accede to the

request, she was subjected to physical assault and also

asked to vacate the house. On the day of occurrence, i.e.,

on 1.12.2016 at 1.30 PM, all the above 3 accused poured

kerosene over her, accused Pappi and Naeema ignited the

matchstick, threw the same at her, all the 3 accused

surrounded her so as not to provide her any escape route.

The victim on being set on fire, cried for help which

attracted the arrival of neighbouring residents to douse the

fire and chase the accused as also informed her relatives.

2. P.W.-2, brother of the victim, got the victim

admitted in the District Hospital, Moradabad on 1.12.2016

at 2.20 PM with 80 % deep thermal and facial burns. Naib

Tehsildar, Sadar, Moradabad (P.W.-5) was summoned

telephonically to record the statement of the victim. P.W.-5

recorded the statement (Ext. Ka-6) of the victim on

1.12.2016 at about 8.48 PM in the hospital which concluded

at 9.15 PM. Dr. A.K. Singh, Emergency Medical Officer,

District Hospital, Moradabad, certified that the victim was

fully conscious while recording her statement. The dying

declaration reads as under:

Annexed Memo 

Dying Declaration of Shaheen Parveen w/o Mansoor

Hussain, aged 32 years, R/o Rahmatnagar, Karula Gali No. 1,

PS ­ Katghar, Moradabad.

Shaheen   Parveen   W/o   Mansoor   Hussain,   aged   32

years, R/o Rahmatnagar, Karula Gali No. 1, PS ­ Katghar,

Moradabad is fully conscious and well (...illegible...) to give

dying declaration.

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Sd/­(illegible)        

Emergency Medical Officer 

District Hospital      

Moradabad          

01.12.2016         

8:45 P.M.          

Pursuant   to   the   instructions   given   by   Tehsildar   Sadar,

Moradabad, I came to the District Hospital Moradabad to

record the dying declaration. 

Name: Shaheen Parveen W/o – Mansoor Hussain, Age: 32

years, Female; R/o: Rehmatnagar, Karula Gali No. 1, PS:

Katghar, Moradabad, Date: 01.12.2016, 8:48 P.M.

Gave personal introduction and told her of the importance of

the declaration. 

Question: What is your name and address?  

Answer: My name is Shaheen Parveen. My husband's name

was Mansoor Hussain. Around two years will have gone by

in February, 2017 since his date of death. My address is

Rehmatnagar Gali No. 1, Ahmed Raza Masjid, Karula, PS –

Katghar, District – Moradabad Nagar.

Question: How did this incident occur to you? 

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 this

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.       

Question: Have you anything more to say or narrate?

Answer: I have two sons; one is 10 yrs old and other one is 9

yrs old. I wish the house to be partitioned, and my children

to be given my share in the house. Now, I have nothing more

to say. 

Shaheen Parveen w/o

Mansoor Hussain

is fully conscious while

giving her dying

Sd/­(illegible)

01.12.2016

(Rajkumar Bhaskar)

Naib Tehsildar Nagar

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declaration.

D/d

Sd/­(illegible)

Emergency Medical

Officer 

District Hospital

Moradabad

(Dr. AK Singh)

EMODHMBI

9:17 P.M.

RTI attested, Sd/­

(illegible) 01.12.2016

Tehsil and District –

Morabadabad

Date: 01.12.2016

Time: 9:15 P.M.

Ex.­Ka­6

3. The victim on 1.12.2016 was referred to Medical

College, Meerut or higher centre. She came to be admitted

at Safdarjang Hospital, New Delhi on 2.12.2016 at about

1.15 AM. P.W.-6 / Dr. Jayant prepared the medico-legal

report (Ext. Ka-8). The said report also incorporated the

role of the above 3 named accused in setting her on fire.

The victim succumbed to the injuries on 2.12.2016 at 7.55

PM. P.W.-7 / A.S.I. at P.S. Safdarjang Enclave, New Delhi

after ascertaining the identity of the victim, carried out the

inquest (Ext. Ka-13) at mortuary of the hospital.

4. The prosecution in order to establish its case,

examined P.W.-1, maternal uncle of the victim, P.W.-2

(brother of the victim), P.W.-3, scribe, P.W.-4, the Constable

prepared the check report on the basis of a written report,

submitted by the victim. P.W-5, the Naib Tehsildar recorded

the dying declaration of the victim on 1.12.2016 at 8.48 PM.

P.W.-6, the doctor at Safdarjang Hospital, examined the

victim and is also the author of medico legal (Ext. Ka-8). He

also proved the death report (Ext. Ka-9), death summary

(Ext. Ka-10) and the autopsy (Ext. Ka-11) of the victim

authored under the signatures of Dr. Saket and Dr. Amit

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Kumar respectively. P.W.-7, the ASI at P.S. Safdarjang

Enclave, New Delhi prepared the inquest (Ext. Ka-13)

under his signatures. P.W.-8, the 2

nd

IO proved the

signatures of the 1

st

IO / S.I. Surjit Singh, who entered the

contents of the check FIR and the GD entry in the case

diary, obtained statements of the prosecution witnesses as

also recorded the factum of the recording of the statement

of the victim before the Magistrate (P.W.-5). He also

authenticated the signatures of the 1

st

IO on the site plan

(Ext. Ka-16) along with other investigational formalities upto

the filing of the charge-sheet (Ext. Ka-17).

5. Accused Pappi alleged that the victim committed

suicide as she was emotionally depressed after the death

of her husband. Accused Naeem and Naeema set up bare

denial. The defence did not lead any evidence.

6. The trial court after evaluating the evidence on the

record, found the dying declaration to be wholly reliable,

convicted the appellants as above.

7. Heard Sri Raj Kumar Khanna, assisted by Sri

Amber Khanna, learned counsel for the appellants and Sri

A.N. Mulla, assisted by Sri Deepak Mishra, the learned

A.G.A.'s.

8. Learned counsel for the appellants challenged the

reliability of the dying declaration on the following grounds:

(A) (i) Motive alleged in the FIR lodged by the victim

was that she, a widow, was being repeatedly coerced by

accused brother-in-law (Pappi), sister-in-law (Naeema) and

Naeem (brother of Naeema) to indulge in flesh trade which

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the victim had been resisting whereas the dying declaration

alleged threats of forcible eviction from the house.

(ii) Timing of the dying declaration: The case of

prosecution is that the alleged dying declaration was

recorded in the hospital at 8.48 PM which stands

contradicted with the testimony of P.W.-1 who was stating

that no sooner P.W.-1 / the informant learnt about the

occurrence around noon, he went to the hospital to see

P.W.-5, the Naib Tehsildar recording the statement of the

victim, i.e., the prosecution has failed to explain time

difference of almost 6 to 8 hours.

(iii) Tutoring: Presence of the mother of the victim

while the statement of the victim was being recorded does

not render the statement to be voluntary and truthful.

(iv) Medical condition of the victim: Epidermal to

dermal ante mortem flame burn injuries present all over the

body except scalp, front of both legs, front of lower half of

right thigh and both foot. The total burn surface area is

approximately eighty percent of the total body surface area.

Red line of demarcation present at the margins of the burnt

area. Singeing of hairs and blackening of hairs present at

places, victim having been administered sedatives to

induce sleep, the medical condition cannot be such that she

was fit enough to make a dying declaration. Sri Khanna in

this regard relied on a “Practical Handbook on Burns

Management, issued by the Government of India for

National Programme for Prevention, Management and

Rehabilitation (NPPMR).”

(v) Contradiction: There is a vital contradiction

between the FIR and the dying declaration vis-a-vis who

arrived at the scene as the FIR alleged that on cries for

help, first neighbours arrived, doused the fire, whereas the

dying declaration alleged that the victim came out of the

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house, the neighbours doused the fire.

(B) He further highlighted the contradictions between

P.W.'s- 1, 2 & 3 so as to suggest that the very genesis of

prosecution case is highly doubtful.

(C) He finally argued that it cannot be said that

prosecution has established its case beyond a shadow of

doubt in view of glaring discrepancies in the present case

and the appellants are entitled to the benefit of doubt.

9. Sri A.N. Mulla, the learned A.G.A. controverted the

above submissions on the premise that the contradictions

either between the FIR and the dying declaration as

regards the motive, as also who arrived at the scene first or

between witnesses of fact are trivial, not affecting the basic

prosecution case, i.e., who caused the burn injuries to the

victim. He further submitted that the dying declaration was

recorded at 8.48 PM, duly proved by P.W.-5, Naib Tehsildar,

an independent public servant. Alternatively, he submitted

that timing of the recording of the dying declaration would

not impact the basic prosecution case. He finally argued in

the light of evidence on record that prosecution has

successfully established its case beyond a reasonable

doubt, appeal is bereft of merit, liable to be dismissed.

10. The sole basis of conviction is the dying

declaration. We lest be very clear as to the law in this

regard before we proceed to evaluate the evidence. It is

well settled beyond any cavil that a dying declaration is

entitled to considerable weight if carefully scrutinized as the

accused is not in a position to challenge the declarant who

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is no more. The court has to be circumspect that a dying

declaration is rendered truly and voluntarily not prompted

by any influences. The logical corollary which follows from

above is that the medical condition of the victim should be

such that it must appear to the court that the declarant was

in a fit medical condition to give a statement. It is equally

well settled that a dying declaration, if found to be true and

voluntary, can be the sole basis of conviction requiring no

corroboration.

11. The Apex Court in Paniben vs. State of Gujarat

(1992), 2 SCC 474, culled out following principles which

could be summed up on reliability of dying declaration as

under:-

Though a dying declaration is entitled to great

weight, it is worthwhile to note that the accused

has no power of cross-examination. Such a power

is essential for eliciting the truth as an obligation

of oath could be. This is the reason the Court also

insists that the dying declaration should be of

such a nature as to inspire full confidence of the

Court in its correctness. The Court has to be on

guard that the statement of deceased was not as a

result of either tutoring, prompting or a product of

imagination. The Court must be further satisfied

that the deceased was in a fit state of mind after a

clear opportunity to observe and identify the

assailants. Once the Court is satisfied that the

declaration was true and voluntary, undoubtedly, it

can base its conviction without any further

corroboration. 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 coroborated. The rule requiring corroboration is

merely a rule of prudence. This Court has laid

down in several judgments the principles

governing dying declaration, which could be

summed up as under:

(i) There is neither rule of law nor of prudence that

dying declaration cannot be acted upon without

corroboration. Mannu Raja v. State of M.P., [1976]

2 SCR 764.

(ii) If the Court is satisfied that the dying

declaration is true and voluntary it can base

conviction on it, without corroboration. State of M.

P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati

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Devi v. State of Bihar, AIR 1983 SC 164.

(iii) This Court has to scrutinise the dying

declaration carefully and must ensure that the

declaration is not the result of tutoring, prompting

or imagination. The deceased had opportunity to

observe and identify the assailants and was in a fit

state to make the declaration. Ram Chandra

Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.

(iv) Where dying declaration is suspicious it

should not be acted upon without corroborative

evidence.Rasheed Beg v. Sate of Madhya Pradesh,

[1974] 4 S.C.C. 264.

(v) Where the deceased was unconscious and

could never make any dying declaration the

evidence with regard to it is to be rejected. (Kake

Singh v. State of M. P.., AIR 1982 S.C. 1021)

(vi) A dying declaration which suffers from

infirmity cannot form the basis of conviction.

(Ram Manorath v. State of U.P. 1981 SCC (Crl.)

(vii) Merely because a dying declaration does not

contain the details as to the occurrence, it is not

to be rejected. (State of Maharashtra v.

Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).

(viii) Equally, merely because it is a brief

statement, it is not be discarded. On the contrary,

the shortness of the statement itself guarantees

truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC

1505)

(ix) Normally the court in order to satisfy whether

deceased was in a fit mental condition to make the

dying declaration look up to the medical opinion.

But where the eye witness has said that the

deceased was in a fit and conscious state to make

this dying declaration, the medical opinion cannot

prevail. (Nanahau Ram and another v. State, AIR

S912)

(x) Where the prosecution version differs from the

version as given in the dying declaration, the said

declaration cannot be acted upon. (State U.P. v.

Madan Mohan, AI1989 S.C. 1519).

12. The above principles have been recently

reiterated by the Apex Court in Jagbir Singh vs. State of

NCT Delhi in Criminal Appeal No.967/2015, decided on

4.9.2019.

13. The FIR (Ext. Ka-4) lodged by victim against the

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accused on 1.12.2016 alleged that she, a widow, for 2

years was being repeatedly coerced by the accused

appellants to indulge in flesh trade which she had been

resisting so much so, that on the fateful day at about 1.30

PM, accused – appellants sprinkled kerosene over her, set

her on fire with a lighted matchstick by accused Pappi @

Mashkoor (brother-in-law) and Naeema (wife of Pappi).

This FIR in a way, is also a dying declaration as the victim

succumbed to her injuries next evening at 7.55 PM.

14. P.W.-5, a Naib Tehsildar was instructed by

Tehsildar to record the statement of the victim at the District

Hospital, Moradabad. P.W.-5 arrived at the hospital on

1.12.2016, put up few questions to the victim to ascertain

her mental capacity to depose who answered affirmatively.

He after introducing himself, commenced the recording of

the statement of the victim at 8.48 PM after obtaining

certificate from Dr. A.K. Singh regarding the fitness of the

victim to make a statement (Ext. Ka-6), which concluded at

9.15 PM. After recording the statement, victim appended

her right thumb impression on the statement.

MOTIVE:-

The dying declaration is challenged on the ground

that the alleged motive in the FIR, that the victim was being

coerced by the accused to indulge in flesh trade whereas

the dying declaration alleged property dispute. Once the

victim nominates the role of named accused both in the FIR

and in the dying declaration, latter cannot be dented on the

ground that the motive stands altered. Alteration in motive

is trivial, not affecting the basic prosecution case. It is well

settled that if there is minor inconsistency between multiple

dying declarations, same may be ignored if it is not

affecting materially the prosecution case. We may place

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reliance on a decision of the Apex Court in Amol Singh vs.

State of Madhya Pradesh, (2002) 8 SCC 468 wherein it

held as under:

Law relating to appreciation of evidence in the

form of more than one dying declaration is well

settled. Accordingly, it is not the plurality of the

dying declarations but the reliability thereof that

adds weight to the prosecution case. If a dying

declaration is found to be voluntary, reliable and

made in fit mental condition, it can be relied

upon without any corroboration. The statement

should be consistent throughout. If the

deceased had several opportunities of making

such dying declarations, that is to say, if there

are more than one dying declaration they should

be consistent. However, if some inconsistencies

are noticed between one dying declaration and

the other, the court has to examine the nature of

the inconsistencies, namely, whether they are

material or not. While scruitinizing the contents

of various dying declaration, in such a situation,

the court has to examine the same in the light of

the various surrounding facts and

circumstances.

TIMING OF DYING DECLARATION:-

The case of the prosecution is that the dying

declaration was recorded in the hospital at 8.48 PM

whereas P.W.-1, maternal uncle of the victim stated that

upon acquiring information relating to the occurrence, he

reached the hospital around noon to see that P.W.-5 was

recording the statement of the victim as is borne out from

P.W.-1 at page-35 of the paper book. P.W.-5 is an

independent public witness. No malafides or mischief is

alleged against him. Dr. A.K. Singh had certified the

medical fitness of the victim both prior as well as after the

dying declaration. The dying declaration itself indicates the

actual time of its recording, i.e., 8.48 PM which concluded

at 9.15 PM and that the victim was conscious all

throughout. There appears to be no plausible reason for

P.W.-5, an independent public witness to manipulate timing

of the recording of the dying declaration.

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TUTORING:-

P.W.-5, the Naib Tehsildar before recording the dying

declaration had also ensured total isolation of the victim

except him and the doctor. He ensured privacy in recording

the statement by putting a portable curtain around the bed

of the victim. He categorically denied the presence of the

mother of the victim at the time of recording of the dying

declaration as also the fact that he had colluded with the

family of the victim in recording the statement.

MEDICAL CONDITION:-

Much stress was laid by learned counsel for the

appellants that the medical condition of victim at the time of

recording of the dying declaration was not such which could

make the dying declaration true and voluntary. He invited

our attention to the autopsy (Ext. Ka.11) prepared by

Safdarjang Hospital, Delhi that epidermal to dermal ante

mortem flame burn injuries were present all over the body

except scalp, front of both legs, front of lower half of right

thigh and both foot. The total burn surface area was

approximately eighty percent of the total body surface area.

15. Learned counsel for the appellants placed

immense reliance on “Practical Handbook on Burns

Management” issued by the Government of India for

National Programme for Prevention, Management and

Rehabilitation (NPPMR)” to contend that once the degree of

burns is raised from 1

st

degree to 4

th

degree, intensity of

pain decreases as with more depth more nerve endings are

destroyed. We can possibly have no dispute as to what has

been indicated by histopathological expert in case of burn

injuries in the handbook. The moot question is whether a

person with aforesaid extent of injuries would be in a

position to make a statement?

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16. There is no hard and fast rule that a victim with

the extent of aforesaid burns (80 %) is incapable of giving

any statement. Each case will have to be decided taking

into consideration the facts and circumstances of that

case. We find it useful to refer to a judgement of the Apex

Court in Ramesh vs. State of Haryana (2017)1 SCC

529 (Para-36) wherein the Apex Court held that “In view

of specific certificate of the doctor about the fitness of the

deceased that she remained fit while recording the

statement, the mere fact that she had suffered 100%

burn would not ipso facto lead to the conclusion that the

deceased was unconscious or that she was not in a

proper state of mind to make a statement”. Thus, in the

light of evidence and legal position as indicated above it

cannot be said as a general proposition that the victim

with 80% burn injuries is incapable of giving a statement.

17. PW-1 is the maternal uncle and PW-2 is the brother of

the victim. Both of them reside in the near vicinity to the house

of the victim. PW-1 asserted that the victim (widowed niece)

often used to visit him complaining that appellants were

coercing her to vacate the house after the death of her

husband. P.W.-2, brother of the victim residing in the vicinity

claims to be an eye-witness but does not appear to be so as his

presence at the time of occurrence appears to be doubtful. The

trial court rightly held P.W.-2 to be not a witness to the occurrence.

However, when he learnt about the occurrence, he reached the

scene, dialed 100 for ambulance. On arrival of ambulance, he

took his sister (victim) to the District Hospital. PW-3, the scribe, is

an acquaintance of the victim. Thus, none of the above

witnesses are eyewitnesses. They were only narrating the

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sequence of post occurrence event. There may be some

contradiction amongst them as to the timing of the dying

declaration which we have already dealt, which contradiction

being trivial is liable to be ignored.

18. PW-6, the doctor at Safdarjang Hospital, New Delhi

asserted that he had written that the victim sustained burn

injuries from kerosene poured over her by appellants and that

he at his own level did not carry any examination as to cause of

burn injuries. On further cross examination he admitted that

cause of burn injuries attributable to kerosene was written as

per the statement of the victim. Merely because the said doctor

did not carry out any inquiry at his level either as to the cause of

burn injuries and was only incorporating the cause of burn

injuries to kerosene as per the statement of the victim is not

such a fatal omission in the absence of any malafides as also

no challenge was made to the source / cause of burn injuries.

The doctor was also stating that at the time of admission of the

victim at hospital, she was conscious and conversing.

19. Accused Pappi alias Mashkoor alleged that he was

not present in the house at the time of occurrence and that the

victim after the death of her husband had earlier made an

attempt to commit suicide. Once accused Pappi alias Mashkoor

is raising an alibi not supported by any evidence same has to

be discarded. There is also no defence evidence relating to

earlier alleged suicide attempts. Accused Naeem and Naeema

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alleged bare denial. All the three accused admitted that the

victim sustained burn injuries at her home in Moradabad but

succumbed under treatment in Delhi.

20. A dying declaration should satisfy all the necessary

tests and one such important test is that if there are more than

one dying declaration, they should be consistent particularly in

material particulas (See: Kamla vs. State of Punjab, (1993) 1

SCC 1). The Apex Court in a recent decision in Jagbir (supra)

again reiterated that where there are more than one dying

declaration, it must entirely agree with one another except

where some minor inconsistency emerge which are

reconcilable. The relevant portion of the said judgment is

quoted hereunder:

However, there may be cases where there are more

than one dying declaration. If there are more than one

dying declaration, the dying declarations may entirely

agree with one another. There may be dying

declarations where inconsistencies between the

declarations emerge. The extent of the Jagbir Singh vs

State (Nct Of Delhi) on 4 September, 2019 . The

inconsistencies may turn out to be reconciliable. In

such cases, where the inconsistencies go to some

matter of detail or description but is incriminatory in

nature as far as the accused is concerned, the court

would look to the material on record to conclude as to

which dying declaration is to be relied on unless it be

shown that they are unreliable;

The third category of cases is that where there are

more than one dying declaration and inconsistencies

between the declarations are absolute and the dying

declarations are irreconcilable being repugnant to one

another. In a dying declaration, the accused may not

be blamed at all and the cause of death may be placed

at the doorstep of an unfortunate accident. This may

be followed up by another dying declaration which is

diametrically opposed to the first dying declaration. In

fact, in that scenario, it may not be a question of an

inconsistent dying declaration but a dying declaration

which is completely opposed to the dying declaration

which is given earlier. There may be more than two.

i. In the third scenario, what is the duty of the court?

Should the court, without looking into anything else,

conclude that in view of complete inconsistency, the

second or the third dying declaration which is relied

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on by the prosecution is demolished by the earlier

dying declaration or dying declarations or is it the duty

of the court to carefully attend to not only the dying

declarations but examine the rest of the materials in

the form of evidence placed before the court and still

conclude that the incriminatory dying declaration is

capable of being relied upon?

21. During pendency of the appeal an application under

section 391 Cr.P.C. was filed by the appellants to summon

Dr.A.K.Singh, the doctor at District Hospital who is reported to

have certified the mental condition of the victim to record her

statement. The precise contention of the appellants is that in

view of the medical condition of the victim (80% burn), she was

not in a position to record her statement.

22. Section 391 of the Code enables the appellate court, if

it thinks additional evidence is necessary, shall record its

reasons, may take such evidence itself or direct the court below

concerned to take such evidence. This is an extraordinary

power contingent upon the satisfaction of the appellate court as

the word “if it thinks additional evidence to be necessary”.

Thus if in a given case the court finds additional evidence to be

necessary to record a particular finding having a material

bearing on a case, then no fetters can be imposed in exercise

of such a right. The ultimate test in any criminal trial is to

ascertain the truth.

23. We do not find any merit in the application for the

following grounds:-

a) There is no hard and fast rule that a victim with 80%

burn injuries is incapable of making a statement.

b) Dr.A.K.Singh, certified the medical condition of the

victim both prior and post the dying declaration as is evident

from the dying declaration itself.

17

c) PW-5, the Nayab Tehsildar authenticated that the DD

was recorded in his presence after obtaining the certificate from

Dr.A.K.Singh.

d) PW-6, the doctor at Safdarganj Hospital, New Delhi

stated that at the time of admission on 2.12.2016 at about 1

A.M., victim was conscious and conversing.

24. We after scanning the entire evidence on record are

of the view that the dying declaration of the victim is true and

voluntary, rendered in fit medical state coupled with the fact that

the victim was having two sons aged about 9 & 10 there

appears to be no palpable reason as to why she would commit

suicide.

25. We are, thus, of the view that the prosecution has

successfully established its case beyond any shadow of doubt,

appeal is liable to be dismissed.

Both the appeals are dismissed.

Let a copy of this order be sent to the Judgeship

concerned so as to enable him to submit a compliance

report within 2 months.

Order Date:­ 17.12.2019

Chandra   

                    (Suresh Kumar Gupta, J)   (Pankaj Naqvi,J)