# Ajay and Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-05-28
- **Bench:** Bala Krishna Narayana, Rajiv Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-and-ors-in-jail-v-state-of-u-p-44333
- **Pages:** 17

## Headnote

A. Evidence Act - Section 32- Multiple
Dying
Declarations
-
Three
dying
declarations. Inconsistencies in dying
declarations and since the third dying
declaration
also
substantially
differs
from the prosecution version hence held
that reliance placed by the learned trial
judge on the same for the purpose of
convicting the appellants is per se illegal.
The First Dying Declaration was given by the
victim immediately after admission in hospital
on 22.03.2010 at 7.45 p.m. before D.W.2 Dr.
Karamvir Singh in which she stated that she
had set herself ablaze. The second Dying
Declaration was recorded by the policeman of
police outpost- Ambehata at about 9 a.m. on
23.03.2010
after
the
victim
regained
consciousness
was
suppressed
by
the
1 All. Ajay & Ors. Vs. State of U.P.
243
prosecution. The Third Dying Declaration was
recorded
by
P.W.7
Naib
Tehsildar
on
23.03.2010 at about 12.15-12.30 p.m. No
signatures of the deceased on the Third Dying
Declaration and it was also not noted in the
said dying declaration that the deceased was
not in a condition to sign her Dying
Declaration. The certificate of fitness was also
not proved by the Emergency Medical Officer
as a witness during the trial. No question was
put by P.W.7 to the deceased to satisfy himself
whether she was giving the Dying Declaration
voluntarily. (Para 29 to 45)

B. Delay in lodging the F.I.R- Inordinate
and unexplained delay of almost 24
hours in lodging the F.I.R by P.W.1.
Hence, the possibility of the F.I.R having
been prepared after due deliberations
and consultations on the advice of the
police to falsely implicate the appellants
cannot be ruled out.
Although as per the evidence the police had
arrived at the place of the occurrence and had
immediately taken the deceased with her
parents, P.W.1 and P.W.2 to the hospital. D.W 1
Om Prakash was named as a witness in the F.I.R
but was not produced as a prosecution witness
and his evidence remained consistent and
clinching to the effect that the parents of the
deceased had set her ablaze. (Para 46 and 47)

Conviction of the appellants set aside.
Appeals allowed. (E-3)

## Text

_Characters 0–39,727 of 57,929. This is a partial read: ask again with offset=39727 for what follows._

242 INDIAN LAW REPORTS ALLAHABAD SERIES
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

52. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence, weapon used in commission of
murder and the manner in which it was
executed or committed, we find that
punishment
imposed
upon
accusedappellants by Trial Court in impugned
judgment and order is not excessive and it
appears fit and proper and no ground
appears to interfere in the matter on the
point of punishment imposed upon him.

53. In view of above discussion,
both the appeals lacks merit and is
dismissed.

54. Lower Court record alongwith a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.

55. Before parting, we provide that
Ms. Somya Chaturvedi, Advocate, who has
appeared as Amicus Curiae for appellant in
present Jail Appeal, shall be paid counsel's
fee as Rs. 10,000/-. State Government is
directed to ensure payment of aforesaid fee
through Additional Legal Remembrancer,
posted in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.05.2018

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAJIV GUPTA, J.

CRIMINAL APPEAL No. 991 OF 2013
Connected With
CRIMINAL APPEAL No. 1893 OF 2013

Ajay and Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ramesh Singh, Sri Achint Ranjan
Singh, Sri Apul Mishra, Sri Mohammad
Umar Khan, Sri Yogesh Kumar Srivastava,
Sri Raghuraj Kishore, Sri Rajesh Pathik,
Sri Harish Chandra Tiwari.

Counsel for the Opposite Party:
A.G.A., Sri Chetan Chaterjee.

A. Evidence Act - Section 32- Multiple
Dying
Declarations
-
Three
dying
declarations. Inconsistencies in dying
declarations and since the third dying
declaration
also
substantially
differs
from the prosecution version hence held
that reliance placed by the learned trial
judge on the same for the purpose of
convicting the appellants is per se illegal.
The First Dying Declaration was given by the
victim immediately after admission in hospital
on 22.03.2010 at 7.45 p.m. before D.W.2 Dr.
Karamvir Singh in which she stated that she
had set herself ablaze. The second Dying
Declaration was recorded by the policeman of
police outpost- Ambehata at about 9 a.m. on
23.03.2010
after
the
victim
regained
consciousness
was
suppressed
by
the
1 All. Ajay & Ors. Vs. State of U.P.
243
prosecution. The Third Dying Declaration was
recorded
by
P.W.7
Naib
Tehsildar
on
23.03.2010 at about 12.15-12.30 p.m. No
signatures of the deceased on the Third Dying
Declaration and it was also not noted in the
said dying declaration that the deceased was
not in a condition to sign her Dying
Declaration. The certificate of fitness was also
not proved by the Emergency Medical Officer
as a witness during the trial. No question was
put by P.W.7 to the deceased to satisfy himself
whether she was giving the Dying Declaration
voluntarily. (Para 29 to 45)

B. Delay in lodging the F.I.R- Inordinate
and unexplained delay of almost 24
hours in lodging the F.I.R by P.W.1.
Hence, the possibility of the F.I.R having
been prepared after due deliberations
and consultations on the advice of the
police to falsely implicate the appellants
cannot be ruled out.
Although as per the evidence the police had
arrived at the place of the occurrence and had
immediately taken the deceased with her
parents, P.W.1 and P.W.2 to the hospital. D.W 1
Om Prakash was named as a witness in the F.I.R
but was not produced as a prosecution witness
and his evidence remained consistent and
clinching to the effect that the parents of the
deceased had set her ablaze. (Para 46 and 47)

Conviction of the appellants set aside.
Appeals allowed. (E-3)

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. The argument of this case was
concluded on 28.05.2018. We then made
the following order :-

"Heard Sri Rajesh Pathik and
Sri Harish Chandra Tiwari, learned
counsel for the appellants, Sri Chetan
Chaterjee,
learned
counsel
for
the
informant and Sri J. K. Upadhyay as well
as Sri Deepak Misra,learned A. G. As.
appearing for the State.

We will give reasons later on,
but we make the operative order now:

"The impugned judgement and
order dated 26.2.2013 passed by the
Special Judge (E. C. Act) / Additional
Sessions Judge, Court No. 5, Saharanpur
in S. T. No. 429 of 2010; State of U. P.
Versus Sonu and others convicting the
appellants under Sections-302/34, 365
and 506 IPC, P. S.-Nakud, distrtictSaharanpur and sentencing them to
undergo rigorous imprisonment for life
with fine of Rs. 10000/- each for offence
under Section-302/34 I. P. C., five years'
R. I. together with fine of Rs. 5000/- each
for offence under Section-365 I. P. C. and
one year's R. I. coupled with fine of Rs.
1000/- each for offence under Section-506
I. P. C. along with default clauses, is
hereby set-aside and the appeal is
allowed. The accused-appellants are
acquitted of all the charges framed
against them. The accused-appellants
who are in jail, shall be released
forthwith unless they are wanted in some
other case subject to their complying with
the provisions of Section 437 A Cr. P. C."

2. Here are the reasons :-

The
prosecution
case
as
unfolded during the trial is that P.W.1
informant Ramesh Chandra son of Jai
Singh, resident of village- Ambehatapeer,
police
outpost-
Ambehatapeer,
P.S.-
Nakud, District- Saharanpur gave a typed
complaint on 23.03.2010 addressed to
S.S.P., Saharanpur stating therein that
when on 19.03.2010 at about 10.30 a.m.,
his daughter Sumita (deceased) who was
studying in B.Sc. Ist year, was going from
her house to her school Puran Mal Degree
College, Gangoh to find out the dates
fixed for holding practical examination,
244 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Sonu (deceased), son of Mamchand,
Ajay (A1) son of Angoora and Jagveer (A3)
son of Jai Singh threatened her with a
revolver and forcibly pushed her into their
maruti van. They kept his daughter in
different places for two days and committed
rape upon her. On 21.03.2010 at about 2.30
p.m., they pushed his daughter out of their
van in front of "aaraht" of Raj Kumar
Khurrana in a perturbed condition. On being
informed about the incident by the villagers,
he brought his daughter to his house. After
sometime, the family members of accused
Sonu (deceased) etc. along with some other
respectable persons of the village came to the
house of P.W.1 informant Ramesh Chandra
and threatened him that they would not let
his daughter marry in case he dared to inform
the police about the incident. On account of
fear, he did not take any action. On
22.03.2010 at about 5 p.m., accused Sonu
(deceased), Ajay (A1) and Jagveer (A3)
came to the dump yard of his house and
caught his daughter with the intention of
burning her alive, Ajay (A1) who was
carrying a canister containing kerosene oil on
his shoulder, poured the same on his
daughter as a result of which, she ran within
the dump yard raising cries for help on which
Jagveer (A3) and others threatened to shoot
her in case she went to the police. On hearing
the noise, Satpal, Om Prakash, Zahoor
Ahmad etc. also reached the place of
occurrence and tried to douse the fire by
sprinkling water on her. Sumita (deceased),
daughter of the informant had received 80
per cent burn injuries. The informant and the
other villagers took Sumita to the hospital
where she remained unconscious throughout
the night. When at about 9 a.m. on the next
day,
she
regained
consciousness,
the
incharge of police outpost, recorded the
statement of his daughter and the informant
then went to the police station to lodge the
report of the occurrence along with the
statement of her daughter. In the complaint it
was also mentioned that an order be passed
directing the P.S.- Nakud to register a case
against Sonu (deceased), Ajay (A1) and
Jagveer (A3) as his daughter's life was in
danger.

3. On the basis of the written report
(Ext.Ka.1), Case Crime No. 31/137/2010
u/s 363, 366, 376, 307 and 506 I.P.C. was
registered
against
the
accused
and
relevant G.D. Entry vide rapat no. 20 time
17.10
hours
was
prepared.
The
investigation of the case was entrusted to
P.W.6 S.I. Samarpal Singh.

4. One day before the F.I.R. was
registered
i.e.
on
22.03.2010,
the
informant had brought his daughter
Sumita (deceased) to DistrictHospital,
Saharanpur with severe burn injuries at
about 7.45 p.m. where she was medically
examined and admitted for treatment in
the hospital. On 23.03.2010, P.W.6 S.I.
Samarpal Singh wrote a letter to City
Magistrate, Saharanpur with a request for
getting the dying declaration of the
deceased recorded on which P.W.7
Rajnikant Pandey, Naib Tehsildar was
ordered to record the dying declaration of
the deceased. He recorded the dying
declaration of the deceased on 23.03.2010
between 12.15 and 12.30 p.m. in the burn
unit of the hospital after the Emergency
Medical Officer present there had stated
that the deceased was in a fit condition to
give her dying declaration. The victim
was read over her statement and her
thumb impression was also obtained
thereon. The dying declaration of the
deceased is being reproduced hereinbelow
:-

D;k uke gS\

lqferk
1 All. Ajay & Ors. Vs. State of U.P.
245

firk dk D;k uke gS\

Jh jes'k pan

dgkW jgrh gks\

vEcsgVk ihj rglhy udqM

fdruh mez gS\

mUuhl lky twu esa gks tk;sxh

dSls ty xbZ\

lksuw iq= ekepan vt; iq= vaxwjk] eksuw
iq= vaxwjk] vkSj tlchj iq= t; flag us tc eSa
dkyst ls vk jgh Fkh] esjk vigj.k dj fy;k vkSj
eq>s 'kkdqEHkj ys x,A ogkW ls eSa fdlh rjg NqVdj
?kj vkbZ 'kqØokj dksA dy fQj eSa vius edku ds
fiNokM+s [kM+h Fkh rks mu pkjks yM+dks us esjs mij
feVVh dk rsy Mky fn;kA eSa Hkkx dj ckFk:e esa
xbZ rks lksuw us ekfpl dh frYyh yxk nhA vigj.k
ds lEcU/k esa iqfyl esa fjiksVZ ugh djkbZA igys rks
ikik th us

vkx yxus dh ?kVuk fdrus cts dh gS\

'kke 6&30 cts yxHkx

vLirky dkSu yk;k\

esjs ikik yk, gS]

5. On 24.03.2000, Ajay (A1),
Jagveer
(A3)
and
accused
Sonu
(deceased)
were
arrested
by
the
Investigating Officer on the information
given to him by the police informer.
Sumita died on 27.03.2010 at about 8.30
p.m. whereafter Section 302 I.P.C. was
added vide rapat no. 24 time 19.20 hours.

6. The inquest on the body of
Sumita (deceased) was conducted by
P.W.4 S.I. Ajay Pal Gautam in the
mortuary of District Hospital, Saharanpur
who prepared the inquest report and other
connected
documents
namely
letter
addressed to R.I., letter addressed to
C.M.O., challan lash, photo lash. The
body of the deceased was thereafter sent
for postmortem examination through
Constables
Yashpal
and
Homeguard
Ishwar Singh.

7. The autopsy on the body of
deceased was conducted by P.W.3 Dr.
Keshav Swami on 27.03.2010 at about
5.15 p.m. who also prepared and proved
her postmortem report as (Ext.Ka.2). He
noted following ante-mortem injuries on
the person of Sumita (deceased) :-

1) Superficial burn injuries
present all over the body, front of face,
feet and sole, present on right forearm.

2) Skin peeled off at places.

3) Red line of demarcation
present in between burnt and burned
areas.

4) Singeing of all body hair.

8. In the opinion of P.W.3 Dr.
Keshav Swami, the cause of death was
shock due to ante-mortem burn injury.

9. Monu (A2) was arraigned as an
accused in the case on the basis of the
facts stated by the deceased in her dying
declaration. The investigation of the case
was transferred on 02.04.2010 to S.I.
Madan Pal Singh Ashok, who recorded
the statements of the informant and other
witnesses. He also seized green colour
plastic jerrican of two litres capacity and
prepared
its
memo
on
11.04.2010
(Ext.Ka.14). The Investigating Officer filed
charge-sheet against all the four accused
including the appellants before the Chief
Judicial
Magistrate,
Saharanpur
who
committed the case for the trial of the
accused to the Court of Sessions Judge,
Saharanpur where it was registered as S.T.
No. 429 of 2010, State Versus Sonu and
three others and transferred for disposal
from there to the Court of Special Judge
(E.C. Act)/Additional Sessions Judge, Court
No. 5, Saharanpur who on the basis of the
material on record and after affording
opportunity of hearing to the prosecution as
well as the accused, framed charge u/s 363,
246 INDIAN LAW REPORTS ALLAHABAD SERIES
366, 302/34 and 506 I.P.C. The appellants
abjured the charge and claimed trial.

10. The prosecution in order to
prove the charge framed against the
appellants examined P.W.1 informant
Ramesh Chandra and P.W.2 Kusum Lata,
parents of the deceased as witnesses of
fact while P.W.3 Dr. Keshav Swami who
had conducted the postmortem on the
body of the deceased, prepared and
proved
the
postmortem
report
as
(Ext.Ka.2), P.W.4 S.I. Ajay Pal Gautam,
the first Investigating Officer of the case,
P.W.5 Head Constable Rajpal Singh who
had prepared the check F.I.R. and the
G.D.
Entry
(Ext.Ka.9),
P.W.6
S.I.
Samarpal Singh, the second Investigating
Officer
who
had
completed
the
investigation
and
filed
charge-sheet
against the accused, P.W.7 Rajnikant
Pandey, Naib Tehsildar who recorded the
dying declaration of the deceased and
P.W.8 S.I. Madan Pal Singh Ashok, who
recorded the statements of the informant
and other witnesses, were produced as
formal witnesses.

11. The prosecution also adduced
documentary evidence comprising of
written report of the incident (Ext.Ka.1),
postmortem
report
(Ext.Ka.2),
death
memo
(Ext.Ka.3),
inquest
report
(Ext.Ka.4),
letter
addressed
to
R.I.
(Ext.Ka.5), letter addressed to C.M.O.
(Ext.Ka.6), photo lash (Ext.Ka.7), challan
lash (Ext.Ka.8), check F.I.R. (Ext.Ka.9),
copies of G.D. (Ext.Ka.10 and Ka.11),
dying declaration of Sumita (deceased)
(Ext.Ka.12),
site
plan
(Ext.Ka.13),
recovery memo of jerrican (Ext.Ka.14)
and charge-sheet (Ext.Ka.15).

12. After recording of the evidence
of the prosecution was closed, the
appellants were examined u/s 313 Cr.P.C.
on 22.06.2012. Accused Sonu (deceased)
on being read over the statements of
P.W.1 informant Ramesh Chandra and
P.W.2
Kusum
Lata,
described
the
contents thereof as false. He further
alleged that he had been arrested from his
house and falsely implicated in this case.
As regards, the dying declaration of the
deceased, he expressed his ignorance and
stated that all the witnesses had given
false evidence against him. He also filed a
written statement u/s 313 Cr.P.C. paper
nos. 95 Ka/3 and 95 Ka/4 in which he
stated that he was having an affair with
the deceased and they had physical
relations. Before the incident, Sumita
(deceased) had called him on phone
asking him to meet her outside the town.
At that time, he was earning his livelihood
by working as woodcutter. He disclosed
the aforesaid fact to Neetu. Neetu called
his uncle on phone and thereafter Sumita
(deceased) was handed over by them to
her parents. On 19.03.2010 at about 4
p.m., Sumita (deceased) asked him on
phone to reach Behat bus stand for going
from there to Shakumbhari. He reached
there and tried to remonstrate with Sumita
(deceased) by saying that he was earning his
livelihood by working as labourer and he did
not have time to go with her to Shakumbhari
but on her insistence, he was forced to go
with Sumita (deceased) to Shakumbhari. On
21.03.2010, they returned from Shakumbhari
and went to their respective homes. The
parents of Sumita (deceased) maltreated and
tortured her for the insult suffered by them
on account of her having gone with accused
Sonu
(deceased)
and
thereafter
on
22.03.2010, her own parents set her ablaze
after pouring kerosene oil on her. One Om
Prakash had telephonically informed the
police outpost about the occurrence by his
cellphone on which the policemen had
1 All. Ajay & Ors. Vs. State of U.P.
247
arrived at the spot and had taken Sumita and
her parents along with them. Sumita was
admitted in GovernmentHospital where she
died on 27.03.2010. Sumita had got herself
photographed with him and had also written
love letters to him. Ajay (A1), Monu (A2)
and Jagveer (A3) had not accompanied him.
Accused Sonu (deceased) had appended two
photographs and copies of purported love
letters along with his written statement filed
by him u/s 313 Cr.P.C.

13. Ajay (A1), Monu (A2) and
Jagveer (A3) in their statements recorded
u/s 313 Cr.P.C. denied the prosecution
case as false and alleged false implication
on account of their being the sons of the
uncles of accused Sonu (deceased). The
accused examined D.W.1 Om Prakash
and D.W.2 Dr. Karamvir Singh. They also
filed a photocopy of medico-legal report
of the Sumita (deceased) (Ext.Kha.1) and
her dying declaration (Ext.Kha.2).

14. Learned Special Judge (E.C.
Act)/ Additional Session Judge, Court no.
5, Saharanpur after considering the
submissions made by learned counsel for
the parties before him and scrutinizing the
evidence on record, both oral as well as
documentary, convicted all the appellants
and awarded aforesaid sentences to them.

15. Hence, these two appeals.

16. Record shows that the appeal
preferred by accused Sonu (deceased)
against the judgement and order dated
26.02.2013 namely Criminal Appeal No.
1893 of 2013 was dismissed as abated on
account of his having died during the
pendency of the appeal.

17. Sri Rajesh Pathik, learned
counsel for the appellants has submitted
that the inordinate and unexplained delay
of more than 24 hours in lodging the
F.I.R. of the occurrence is in itself
indicative of the fact that the written
report of the incident was prepared after
due deliberations and consultations with
the
police
falsely
implicating
the
appellants, who are closely related to each
other, as a measure of vendetta by the
informant on account of his daughter
Sumita (deceased) having an affair with
the accused Sonu (deceased). He next
submitted that despite the fact that the
written report of the incident contains a
specific recital that the Investigating
Officer of the case had recorded the
statement of Sumita (deceased) after she
had
regained
consciousness
in
the
morning
of
23.03.2010
and
P.W.1
informant Ramesh Chandra had gone to
the police station to lodge the F.I.R. of the
occurrence along with the statement of the
deceased
recorded
by
S.I.
P.W.7
Rajnikant Pandey but the said statement
of
the
deceased
was
deliberately
suppressed by the prosecution presumably
because the same did not corroborate the
prosecution story as narrated in the
written report (Ext.Ka.1). He further
submitted that material contradictions
with regard to the named perpetrators of
the crime and the place and the manner in
which the deceased was set ablaze as
narrated in the written report and later
testified by the two witnesses of fact visa-vis the dying declaration of the
deceased which itself appears to be a
manufactured document render the oral
evidence on record as well as the
deceased's
dying
declaration
wholly
unreliable and untrustworthy and the
reliance placed by the trial court on the
same for fastening the guilt on the
appellants is per se illegal. He further
submitted that there are irreconcilable
discrepancies with regard to the first part
248 INDIAN LAW REPORTS ALLAHABAD SERIES
of the occurrence which constituted the
alleged kidnapping of the deceased by the
appellants and accused Sonu (deceased),
her being raped by them for two days and
thrown out of the maruti van and the
manner of her recovery vis-a-vis the
dying declaration and the F.I.R. of the
incident. The time of incident mentioned
in the F.I.R. is 5.10 p.m. while the
deceased in her dying declaration had
stated that she had been set ablaze at
about 6.30 p.m. Moreover, the failure of
P.W.1 informant Ramesh Chandra to
lodge any complaint with regard to the
alleged kidnapping and rape of the
deceased by the appellants further belies
the prosecution story in that regard. He
next submitted that the learned trial Judge
illegally discarded the defence version of
the
occurrence
which
stood
fully
corroborated from the evidence of D.W.1
Om Prakash and D.W.2 Dr. Karamvir
Singh and the documentary evidence
brought on record by the accusedappellant which clearly indicated that the
appellants were innocent and had nothing
to do with the alleged kidnapping of the
deceased or her being set ablaze. He lastly
submitted that such being the state of
evidence and the role of setting the
deceased ablaze having been specifically
ascribed to accused Sonu (deceased) and
the prosecution having miserably failed to
prove that the appellants had also aided
accused Sonu (deceased) in the alleged
kidnapping
of
the
deceased,
their
conviction recorded by the trial court by
invoking aid of Section 34 I.P.C. is per se
illegal and is liable to be set-aside.

18. Per contra Sri J. K. Upadhyay,
learned A.G.A appearing for the State
submitted that it is fully proved from the
evidence of the two witnesses of fact
examined by the prosecution during the trial
that the deceased was kidnapped by the
appellants and accused Sonu (deceased)
while she was going to her school to find out
the dates fixed for holding practical
examination and illegally confined in a
maruti van and that the accused after
committing rape on her for two days by
taking her to different places, had thrown her
out of the maruti van in front of "aaraht" of
Raj Kumar Khurrana, and after the first
informant had brought back his daughter to
his house, the parents of accused had come to
his house and threatened that they would see
that his daughter was never married in case
he filed any report against them and then on
the same day, the accused had set the
deceased ablaze by pouring kerosene oil on
her. He further submitted that the learned
trial Judge did not commit any illegality in
relying upon the dying declaration of the
deceased for the purpose of convicting the
appellants. There is no merit in the
submission made by learned counsel for the
appellants that the conviction of the
appellants recorded by the trial court by
invoking Section 34 I.P.C. is illegal. There
are no material contradictions in the
statements of the witnesses recorded during
the trial and the facts stated by the deceased
in her dying declaration so as to render the
prosecution story unreliable. The prosecution
story is also not liable to be thrown out
merely on the ground of there being some
delay in lodging of the F.I.R. There is no
merit in this appeal. The appeal is liable to be
dismissed.

19. The only question which arises
for our consideration in this case is that
whether the prosecution has been able to
prove its case against the appellants
beyond all reasonable doubts or not ?

20. Record shows that as per the
prosecution version set forth in the written
1 All. Ajay & Ors. Vs. State of U.P.
249
report of the occurrence (Ext.Ka.1) which
was lodged by P.W.1 informant Ramesh
Chandra, father of Sumita (deceased).
Accused Sonu (deceased), Ajay (A1) and
Monu (A2) had entered into the dump
yard of informant's house and had caught
hold of Sumita with the intention of
burning her alive. Ajay (A1) poured
kerosene oil on her from the canister
which he was carrying on his shoulder on
which Sumita (deceased) raised cries for
help and started running helter-skelter
within the dump yard. Monu (A2) and
others threatened to shoot her in case she
went to the police. On hearing the noise,
P.W.1
informant
Ramesh
Chandra,
Satpal, Zahoor and Om Prakash and
several other persons rushed to his house and
tried to douse the fire by pouring water on
her. Sumita (deceased) had received 80 per
cent burn injuries in the occurrence. She was
taken to the hospital on the same day in an
unconscious condition and admitted there for
treatment. On the next day at about 9 a.m.,
she regained consciousness and a police man
of police outpost- Ambehata came to the
hospital and recorded her statement. P.W.1
informant Ramesh Chandra then went to
police station to lodge the F.I.R. in the
evening along with the statement of Sumita
(deceased). The F.I.R. was registered on
23.03.2010 at about 17.10 hours. The
incident which had taken place in the
evening of 22.03.2010 was preceded by
another occurrence which had taken place on
19.03.2010 when Sumita (deceased) was
going to her school Puran Mal Degree
College, Gangoh to find out the dates on
which the practical examination were going
to be held, she was kidnapped by accused
Sonu (deceased), Ajay (A1), Monu (A2) and
Jagveer (A3) at gunpoint and forcibly pushed
into the maruti van and taken to different
places for the next two days where they had
committed rape on her. On 21.03.2010 at
about 2.30 p.m., the deceased was thrown
out of the maruti van in front of the "aaraht"
of Raj Kumar Khurrana and on the
information given by the villagers to P.W.1
informant Ramesh Chandra, he had taken his
daughter to his house and after sometime,
parents of accused Sonu (deceased) along
with some respectable persons of his village
had come to his house and requested him not
to lodge any report otherwise they would see
that his daughter was never married. As a
result, he did not take any action against
them.

21. The prosecution in order to
prove its version of the incident examined
P.W.1 informant Ramesh Chandra and
P.W.2 Kusum Lata as eye witnesses of
the occurrence although in the F.I.R. it
was mentioned that a large number of
villagers including Satpal, Om Prakash,
Zahoor Ahmad etc. had also reached the
place of occurrence on hearing the noise
and witnessed the same but they were
withheld although Om Prakash who was
nominated as an eye witness of the
occurrence in the F.I.R. was produced by
the defence and examined as D.W.1.

22. P.W.1 informant Ramesh
Chandra
in
his
examination-in-chief
deposed that the accused in the case
namely Sonu (deceased), Ajay (A1),
Monu (A2) and Jagveer (A3) were known
to him previously. Jasveer was also called
Jagveer. Sumita was his daughter. At the
time of the occurrence, she was studying
in B.Sc. Ist year. On 19.03.2010 at about
10.00 a.m. while she was going to Puran
Mal Degree College, Gangoh where she
studied, to enquire about the dates of
practical examination and as soon as she
reached the crossing of the village, she
met Ajay (A1), Monu (A2), Jagveer (A3)
and accused Sonu (deceased) near the bus
250 INDIAN LAW REPORTS ALLAHABAD SERIES
stand, who kidnapped her and forced her
into their van. They took his daughter to
different places for the next two days and
committed
wrong
with
her.
On
21.03.2010 at about 2.30 p.m., they left
his daughter in front of "aaraht" of Raj
Kumar Khurrana in a perturbed condition.
The man who sold nuts at the bus stand
informed him on which he along with his
other family members went to the place
where his daughter was thrown. He
brought her back to his house in an
unconscious state. He gave water to her
after which she gained consciousness. The
relatives of the accused along with some
respectable persons of the village came to
his house and tendered apologies for the
misdeeds of their children and requested
him not to lodge any report with the
police
against
them
otherwise
her
daughter would never be able to get
married. On 22.03.2010 at about 5 p.m.,
Ajay (A1), Monu (A2), Jagveer (A3) and
accused Sonu (deceased) came to his
house from the back door. Ajay (A1)
poured kerosene oil on her from the
canister which he was carrying on his
shoulder while the remaining three
accused
caught
hold
of
Sumita
(deceased). Accused Sonu (deceased) set
Sumita ablaze on which she ran within the
dump yard shouting. When he tried to
save his daughter, Jagveer (A3) took out
his revolver and threatened him with dire
consequences in case he came forward.
On account of his threats, he could not
save her. On hearing the noise, Satpal,
Zahoor and Om Prakash also arrived at he
place
of
occurrence
and
saw
the
occurrence and tried to save his daughter
Sumita who had received 80 per cent burn
injuries. He and his family members took
his daughter to GovernmentHospital,
Saharanpur and got her admitted there.
His daughter regained consciousness in
the morning of 23.03.2010 after which a
Daroga Ji came to the hospital and
recorded her statement. Thereafter he
scribed the written report of the incident
(Ext.Ka.1) and lodged it at P.S.- Nakud,
District- Saharanpur. It is noteworthy that
P.W.1 informant Ramesh Chandra in his
examination-in-chief has not deposed about
recording of any dying declaration of the
deceased by P.W.7 Rajnikant Pandey, Naib
Tehsildar after the police man of police
outpost- Ambehata had recorded her
statement.
P.W.1
informant
Ramesh
Chandra in his cross-examination when
contradicted with the contents of the F.I.R.
in which he had not named Monu (A2) as
accused, he said that he had written the
name of Monu (A2) as accused in the F.I.R.
but in case his name was not there, he had
no explanation for the same. He came up
with the same explanation for his failure to
nominate Monu (A2) as accused in his
statement recorded u/s 161 Cr.P.C. on
being contradicted with the same by the
defence counsel.

23. P.W.2 Kusum Lata in her
examination-in-chief recorded during the
trial corroborated the evidence of P.W.1
informant
Ramesh
Chandra
on
all
material points. In addition, she stated that
after the policemen had arrived, she was
asked to first save her daughter and the
duty of catching the accused was theirs.
She also stated that after the statement of
her daughter was recorded by a police
man of police outpost- Ambehata, a
senior officer had come and had recorded
the statement of Sumita (deceased) in a
closed room. Her daughter had died due
to burn injuries on 27.03.2010. She in her
evidence did not state that the information
about her daughter being abandoned by
the accused in front of "aaraht" of Raj
Kumar Khurrana, was given to her by the
1 All. Ajay & Ors. Vs. State of U.P.
251
person selling nuts at the bus stand. She
deposed that somebody had informed
them about her daughter being thrown out
of maruti van by the accused in front of
"aaraht" of Raj Kumar Khurrana. She in
her examination-in-chief also deposed
that on 22.03.2010 at about 5 p.m., she
was washing clothes in the dump yard and
her daughter was sitting in the courtyard
in a pensive mood. All the four accused
namely Ajay (A1), Monu (A2), Jagveer
(A3)
and accused Sonu (deceased)
entered the premises of her house from
the back door. Monu (A2) caught hold of
her daughter while Ajay (A1) poured
kerosene oil on her and accused Sonu
(deceased) set her ablaze. Her daughter
shouted on which Jagveer (A3) threatened
her with a revolver and told her that in
case she made any noise, he would shoot
her. Satpal, Zahoor and Om Prakash had
also reached the place of occurrence on
hearing the noise. The police also arrived
and took the deceased along with her
parents and family members to the
hospital who regained consciousness on
the next day at about 9 a.m. A police man
from police outpost, Ambehata had
recorded her statement and thereafter
some senior officer came and recorded
her statement in a closed room. Her
daughter died on 27.03.2010 as a result of
burn injuries. P.W.2 Kusum Lata, on
being contradicted with her statement
recorded u/s 161 Cr.P.C. in which the
name of Monu (A2) was conspicuous by
its absence, stated that she had told the
name of Monu (A2) to the Investigating
Officer but in case he had failed to
mention his name in her statement, she
had no explanation for the aforesaid
omission on the part of the Investigating
Officer. P.W.2 Kusum Lata in her crossexamination on page 34 of the paper book
further
deposed
that
when
P.W.7
Rajnikant Pandey, Naib Tehsildar came to
record the dying declaration of the
deceased, she was sitting with her
daughter in the ward. Naib Tehsildar had
asked her to leave the room.

24. Although in the F.I.R. as well as in
the examination-in-chief of P.W.1 informant
Ramesh Chandra, he has stated that Ajay
(A1) had poured kerosene oil kept by him in
the canister, over the deceased while P.W.2
Kusum Lata did not state about any canister
in her evidence.

25. Thus, upon a conjoint reading of
the statements of P.W.1 informant Ramesh
Chandra and P.W.2 Kusum Lata, it transpires
that their evidence on the point of the Sumita
(deceased) being kidnapped by the appellants
is hearsay and inadmissible in evidence
against the appellants. Moreover, there are
several material contradictions in their
evidence with regard to the main occurrence.
While P.W.1 informant Ramesh Chandra
stated that he was the first one to reach the
place of occurrence after hearing the noise
and was threatened by Jagveer (A3) with a
revolver when he tried to save his daughter,
P.W.2 Kusum Lata also claimed herself to be
the first person to arrive at the place of
occurrence and being threatened by Jagveer
(A3). Moreover, both P.W.1 informant
Ramesh Chandra and P.W.2 Kusum Lata
have failed to come up with any plausible
explanation for their having not nominated
Monu (A2) also as an accused in their
statements recorded u/s 161 Cr.P.C.

26. Similarly although both the eye
witnesses deposed before the trial court
that police had arrived at the place of
occurrence immediately after the incident
and taken their daughter with them to the
hospital but in the F.I.R. (Ext.Ka.9), there
is no such recital. In fact the F.I.R.
252 INDIAN LAW REPORTS ALLAHABAD SERIES
contains a categorical averment that
P.W.1 informant Ramesh Chandra and
villagers had taken the deceased to the
hospital. The deceased also in her dying
declaration stated that her father had taken
her to the hospital.

27. Similarly, no explanation is
coming forth for non-mention of Monu
(A2) in the F.I.R. The F.I.R. also does not
contain any recital that after Ajay (A1)
had poured kerosene oil on the deceased,
the accused had set her ablaze. In fact the
F.I.R. is absolutely silent on the point that
after kerosene oil was poured on her, the
accused or anyone of the accused had set
her ablaze. P.W.1 informant Ramesh
Chandra has also failed to mention in the
F.I.R. that when he had gone to save his
daughter after hearing her shrieks, Jagveer
(A3) had threatened him with a revolver.

28. The aforesaid discrepancies in
their statements create a very strong
suspicion about the truthfulness of the
facts deposed by them with regard to the
main occurrence. In our opinion, their
evidence does not inspire confidence and
it would not be safe to confirm the
conviction of the appellants by placing
reliance on their testimony.

29. The only evidence thus left on
record against the appellants is the dying
declaration of the deceased. The veracity
of the dying declaration of the deceased
has been assailed by the learned counsel
for the appellants inter alia on the grounds
that the version of the occurrence given in
the dying declaration is vague as the same
does not refer to the date of the
occurrence and materially differs from the
prosecution version; that there is evidence
on record indicating that before P.W.7
Rajnikant Pandey, Naib Tehsildar had
proceeded to record the dying declaration
of the deceased, her family members were
sitting with her and hence, there was
ample
opportunity
of
tutoring
the
deceased; that the statement of the
deceased which was recorded by police
man of police outpost- Ambehata as soon
as she had regained consciousness in the
hospital on the next day and with which
P.W.1 informant Ramesh Chandra had
gone to the police station for lodging the
F.I.R. as deposed by him in his evidence,
was deliberately suppressed; that there is
evidence of D.W.2 Dr. Karamvir Singh
who was the first doctor to attend the
victim when she was admitted to the
hospital on 22.03.2010 at 7.45 p.m. and
the extract of medico-legal register
(Ext.Kha.1) indicating that on being asked
by D.W.2 Dr. Karamvir Singh about how
she had received injuries, she had told
him that she had set herself ablaze and the
aforesaid statement in fact constituted her
first dying declaration which has been
illegally ignored by the trial Judge. Before
considering the acceptability of the dying
declaration and the course which a court
should adopt in the event of there being
multiple
dying
declarations
of
the
deceased, it would be useful to refer the
legal position :-

30. In Sham Shankar Kankaria vs.
State of Maharashtra, (2006) 13 SCC
165, the Apex Court held as under :

"10. This is a case where the
basis of conviction of the accused is the
dying declaration. The situation in which
a person is on deathbed is so solemn and
serene when he is dying that the grave
position in which he is placed, is the
reason in law to accept veracity of his
statement. It is for this reason the
requirements
of
oath
and
cross-
1 All. Ajay & Ors. Vs. State of U.P.
253
examination are dispensed with. Besides,
should the dying declaration be excluded
it will result in miscarriage of justice
because the victim being generally the
only eye-witness in a serious crime, the
exclusion of the statement would leave the
Court without a scrap of evidence.

11. 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, or 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 assailant. 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
corroborated.
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 as indicated in
Smt. Paniben v. State of Gujarat (AIR
1992 SC 1817):

" (i) There is neither rule of law
nor of prudence that dying declaration
cannot
be
acted
upon
without
corroboration. (See Munnu Raja &Anr. v.
The State of Madhya Pradesh (1976) 2
SCR)

(ii) If the Court is satisfied that
the dying declaration is true and
voluntary it can base conviction on it,
without corroboration. (See State of Uttar
Pradesh v. Ram Sagar Yadav and Ors.
(AIR 1985 SC 416) and Ramavati Devi v.
State of Bihar (AIR 1983 SC 164)]