The Supreme Court held that a woman’s statement recorded by police under Section 161 CrPC can be treated as a valid dying declaration. The Court also summoned the husband’s relatives for further proceedings in the case before it.
New Delhi: The Supreme Court set aside the Allahabad High Court order and directed that the husband’s mother, brother and brother-in-law must also face trial for their alleged role in the firing and murder of Nishi, who later died of her injuries.
The Court held that the evidence recorded during trial, the testimony of the child witness, and the deceased woman’s own recorded statements created a strong prima facie case that the other family members instigated the crime.
The apex Court has determined that statements taken by the police in accordance with Section 161 of the Code of Criminal Procedure (CrPC) may be regarded as dying declarations under Section 32 of the Indian Evidence Act, even in the absence of a Magistrate or a medical fitness certificate.
The Division Bench, led by Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh, approved the appeal in Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors. (2025 INSC 1386).
The Court noted that the evidence available, including the testimonies of the deceased’s brother and minor daughter, as well as the deceased’s statements to the police, indicated the likely involvement of the respondents.
The key legal issue was whether the Trial Court and the High Court were correct in rejecting a prosecution application under Section 319 of the CrPC. This application sought to summon the deceased’s mother-in-law and brothers-in-law as additional accused, named in the deceased’s statements but excluded from the police chargesheet.
The Supreme Court found the dismissal to be incorrect. It reaffirmed that a statement from a deceased individual about the cause of their death, recorded by a police officer per Section 161 CrPC, is pertinent and admissible under Section 32(1) of the Evidence Act.
As a result, the Court set aside the Allahabad High Court’s judgment dated April 22, 2024, and the Trial Court’s order from August 3, 2023. The private respondents (Respondent Nos. 2 to 4) have now been ordered to face trial in Sessions Trial No. 1151 of 2021.
Background
This case arose from FIR No. 187 of 2021, filed by Neeraj Kumar after his sister Nishi was shot at her matrimonial home in Sikandrabad, Bulandshahr. The FIR initially named only her husband Rahul.
The appellant, Neeraj Kumar, claimed that his sister, Nishi, was shot by her husband, Rahul, at her marital residence. This information was relayed to him by his nine-year-old niece, Shristi, who stated, “Papa has shot Mummy at home.”
While receiving treatment for her firearm injuries, Nishi provided statements to the police under Section 161 CrPC on two occasions: On March 25, 2021, she identified her husband as the shooter.
Then, on April 18, 2021, she further alleged that her husband shot her at the instigation of his mother, Rajo @ Rajwati (Respondent No. 2), brother Satan @ Vineet (Respondent No. 3), and brother-in-law Gabbar (Respondent No. 4). She mentioned that the motive for the shooting stemmed from harassment regarding the birth of daughters and a refusal to terminate a female foetus.
Unfortunately, the victim succumbed to her injuries on May 15, 2021. Following the investigation, a chargesheet was submitted on July 16, 2021, solely naming her husband, Rahul, under Sections 302 and 316 of the IPC, while the other relatives were cleared of involvement.
The victim survived for nearly two months and her statements were recorded twice under Section 161 CrPC. In the first statement she named only Rahul as the shooter; in the later one she explained that the shooting took place “on instigation by one of my Nandoi (Brother-in-law of husband), my [Saas] mother-in-law and Dewar [Brother-in-law] under their conspiracy.”
Her nine-year-old daughter Shrishti also gave detailed evidence before the Trial Court describing the instigation and active involvement of the husband’s relatives.
The Trial Court and High Court both refused the prosecution’s application under Section 319 CrPC to summon the husband’s mother, brother and brother-in-law. They held that the evidence was not strong or cogent, that the child witness was not an eyewitness, and that the deceased’s statements could not be treated as dying declarations.
The Supreme Court disagreed with every one of these conclusions.
Arguments of the Parties
The prosecution asserted that the evidence presented during the trial clearly delineated the involvement of the respondents. They placed significant emphasis on the testimony of the minor daughter (PW-2), who was at the scene, and the detailed statement of the deceased recorded on April 18, 2021, which specified the instigating roles of the respondents.
The respondents contended that PW-2 acknowledged in cross-examination that she arrived at the scene only after hearing gunshots, suggesting she was not actually an eyewitness. They characterized PW-2 as a tutored witness living with the appellant’s family.
Additionally, they argued that the deceased’s statements were inconsistent; notably, the initial statement did not name the respondents. The defense highlighted that these statements were not recorded in the presence of a Magistrate and lacked medical certification of the deceased’s mental fitness.
They pointed out that the death occurred nearly two months after the initial statement, arguing this weakened its credibility as a dying declaration.
Court’s Analysis
- Scope of Power Under Section 319 CrPC:
Citing the Constitution Bench judgments in Hardeep Singh v. State of Punjab (2014) and S. Mohammed Ispahani v. Yogendra Chandak (2017), the Court reiterated that the authority under Section 319 CrPC is “extraordinary and discretionary,” to be exercised when “strong and cogent evidence” exists.
The Court noted, “The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.” - Testimony of the Minor Witness (PW-2):
The Supreme Court criticized the High Court for relying on PW-2’s cross-examination to undermine her testimony at the summoning stage, describing this approach as conducting a mini-trial, which is impermissible. The Court observed that PW-2’s deposition, in conjunction with her Section 161 statement, specifically assigned overt acts to the respondents, such as handing the pistol to the main accused and urging him to finish her. - Admissibility of Dying Declarations:
Addressing the validity of the deceased’s statements to the police, the Court dismissed the argument that they were inadmissible due to the lack of a Magistrate or medical certification.
Citing Dharmendra Kumar v. State of M.P. (2024), the Bench stated,
“A statement made by a deceased person… to a Police Officer and recorded under Section 161 CrPC, shall be relevant and admissible under Section 32(1) of the Evidence Act… notwithstanding the express bar provided in Section 162 CrPC. Such a statement, upon the death of the declarant, assumes the character of a dying declaration.”
Regarding the necessity of mental fitness certification, the Court remarked,
“The requirement for a dying declaration to be recorded in the presence of a doctor, following certification of the declarant’s mental fitness, is merely a matter of prudence.”
Concerning the time gap between the statement and death, the Court clarified,
“The law does not require that a declarant, at the time of making the statement, to be under the shadow of death or the expectation that death is imminent… What is pertinent is that the statement relates either to the cause of death or the circumstances leading to it.”
The Supreme Court concluded that the testimonies of PW-1 and PW-2, alongside the statements of the deceased, provided adequate grounds to summon the respondents.
Also Read: Dowry Death? Dying Declaration Sends Mother-In-Law To Jail For Life: District Court
The Court deemed objections regarding inconsistencies and potential tutoring as “premature” and suitable for resolution at trial.
The court stated,
“Therefore, the appeal is accordingly allowed… Parties are directed to appear before the Trial Court on 08th January 2026. We direct them to fully cooperate and not take any unnecessary adjournments. The trial is expedited.”
The Court also clarified that all observations were only for deciding the Section 319 issue and not for determining guilt during trial. The High Court’s 22 April 2024 order was set aside and the family members were ordered to appear before the Trial Court on 8 January 2026.
Case Title: Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
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