Every prosecution witness of fact turned hostile, yet the dying declaration stood: the Allahabad High Court has held that it cannot be disbelieved in toto on that ground alone, confirming the life sentences of a husband and his parents and acquitting two co-accused who were never identified.
Prayagraj: Relying on the dying declaration of a young woman who was allegedly set on fire with kerosene at her matrimonial home in Budaun, the Allahabad High Court has dismissed the appeals of a husband and his parents against their conviction for murder under Section 302 read with Section 149 of the Indian Penal Code. Her mother, sister, maternal aunt and brother had turned hostile at trial. The Court did set aside the conviction of two other accused, holding that their identity was never established [Smt. Rajeshwari and Another v. State of U.P.].
The Division Bench of Justice Siddhartha Varma and Justice Jai Krishna Upadhyay upheld the life imprisonment of Anuj Kumar, his mother Rajeshwari and his father Brajpal. Vipin and Madan were acquitted, with a direction that they be released forthwith unless wanted in any other case.
The declaration against the hostile witnesses
A definite dying declaration had been recorded, the Bench found, and the father of the deceased had rushed her to hospital on learning of the incident. It then held:
“We are of the view that the dying declaration, despite the fact that all the prosecution witnesses of fact had turned hostile, cannot be disbelieved in toto. There are circumstances in which prosecution witnesses are won over, either emotionally or by material benefits. In the present case winning over the prosecution witnesses cannot be ruled out, particularly in view of the fact that the dying declaration was piously recorded by the Tehsildar after the doctor had declared the injured fit enough to give the statement.”
The informant, the other witnesses and the deceased herself had known Rajeshwari, Brajpal and Anuj Kumar before the declaration was recorded. In the Court’s words, “their identities were definitely fixed and, since they had been named by a person who knew that she was going to die they were definitely guilty of the offences for which they were charged”.
From a burning in Asrasi to a conviction in Budaun
The prosecution says the woman, married to Anuj Kumar for about three years, was burnt at her matrimonial home in village Asrasi, police station Kadarchauk, around 4 PM on 4 January 2017. She was taken to the District Hospital at Budaun, where a Naib Tehsildar recorded her dying declaration at about 4:48 PM after a doctor declared her fit to give a statement. She died at about 2:45 AM on 5 January 2017. The post-mortem attributed death to shock and extensive ante-mortem burn injuries, and the FIR was lodged at about 11:45 PM.
On 20 January 2018, charges were framed under Sections 498-A and 304-B IPC and Sections 3 and 4 of the Dowry Prohibition Act, with an alternative charge under Section 302 read with Section 149 IPC. The mother, sister, maternal aunt and brother of the deceased all turned hostile at trial, some saying the burns were accidental, caused when a stove burst. On 30 November 2018 the Sessions Court at Budaun convicted all five accused under Section 302 read with Section 149 IPC and sentenced each to life imprisonment and a fine of Rs 10,000.
What the appellants and the State argued
It was a “brought up” case and the deceased was not in a fit condition to speak, the appellants argued. They pointed to missing pages in the bed-head ticket, to the thumb impression on the declaration being taken from her foot because her hands were burnt, to the absence of any mention of a kerosene smell in the post-mortem report, and to every witness of fact having turned hostile.
For the two acquitted appellants, the argument was that they were strangers to the family, were not identified by any witness or in a test identification parade, and that the charge sheet carried no description of them. Reliance was placed on the Supreme Court’s decision in Tukesh Singh v. State of Chhattisgarh on the need for identification in court.
The State relied on Khushal Rao v. State of Bombay, which holds that a dying declaration can form the sole basis of conviction without corroboration once the court finds it truthful and voluntary, and on the testimony of the doctor and the Naib Tehsildar who recorded it.
Why Vipin and Madan were acquitted
Vipin was named in the FIR, and Vipin and Madan were both named in the dying declaration. Yet none of the prosecution witnesses knew either man from before, no test identification parade was held, and no witness, not even a hostile one, identified them in court. The thumb impressions taken when charges were framed, the Court held, could not establish that they were the persons the deceased had named.
“Which Madan and Vipin of the country having crores of people were involved in the incident had to be marked out and trial had to be done vis-a-vis the marked out accused who had been conclusively identified as Madan and Vipin.”
Without identification, the Court held, “Vipin and Madan cannot be held guilty”. Their appeal was allowed and the judgment of 30 November 2018 was set aside as against them, while the appeals of the husband and his parents were dismissed.
Two limbs of one ruling
A settled position is applied here: a dying declaration the court finds truthful needs no corroboration, and family witnesses turning hostile does not by itself efface it. The Bench was willing to accept that witnesses may be won over, but it did not stretch the same declaration to convict persons whom no one could identify.
That second limb marks the edge of the principle. Where the accused are not family members and the witnesses do not know them, a name in a dying declaration must be tied to a particular person through a test identification parade or identification in court.
Case Title: Smt. Rajeshwari and Another v. State of U.P. (with Anuj Kumar v. State of U.P. and Vipin and Another v. State of U.P.)
Case Number: Criminal Appeal Nos. 1219, 1220 and 1221 of 2019
Bench: Justice Siddhartha Varma and Justice Jai Krishna Upadhyay, Allahabad High Court
Date of Judgment: October 16, 2026
Appearances: Mahendra Pal Singh Gaur, Advocate, for Anuj Kumar, Rajeshwari and Brajpal; Sunil Kumar, Advocate, for Vipin and Madan; Amit Sinha, Additional Government Advocate, for the State