# Bablu @ Nand Kumar v. State of U.P

- **Citation:** (2022) 5 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-03
- **Case number:** Criminal Appeal No. 1255 of 2016
- **Bench:** Rajan Roy, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bablu-nand-kumar-v-state-of-u-p-48566
- **Pages:** 11

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
323, 326 - Section 4 of D.P. Act-challenge to
-conviction-modification of sentence-dying
declaration-deceased
got
burnt in
her
matrimonial home and died in hospital
during treatment-PW-6 recorded the dying
declaration in which deceased stated her
husband set her ablaze after pouring
kerosene oil and nobody was present thereargument about overwriting of time has no
force-conviction can be based on dying
declaration alone without corroboration if it
is trustworthy and genuine-no evidence of
demand of dowry as the witness turned
hostile-sentence
u/s
302
IPC
is
confirmed.(Para 2 to 29)

B. It is well settled that, as a matter of law,
a dying declaration can be acted upon
without corroboration. There is not even a
rule of prudence which has hardened into a
rule of law that a dying declaration cannot
be acted upon unless it is corroborated. The
primary effort of the court has to be find out
whether the dying declaration is true. If it is,
no question of corroboration arises. it is only
if the circumstances surrounding the dying
declaration are not clear or convincing that
the court may, for its assurance, look for
corroboration to the dying declaration.
(Para 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

64 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Considering the weapon used and
the place and nature of the injuries, though
it is found that the appellant committed the
offence without any premeditation in a
sudden fight in the heat of passion upon a
sudden quarrel but the same cannot be said
to have been done by mistake or accident.
The act of the appellant was clearly with
the intent to cause bodily injury which
could result in the death of the deceased.

It is a case where there may be an
absence of the intention to cause death but
it is not where there is also an absence of
intention to cause such bodily injury as is
likely to cause death which in the ordinary
course of things is likely to cause death.

36. In view of the above discussion,
though we find that the appellant is not
guilty of murder under Section 302 of the
Code but he is guilty of committing an
offence which is punishable under Section
304 Part I of the Code "Culpable homicide
not amounting to murder", punishable in
the first part (Part I) of Section 304 of the
Code.

37. We, therefore, do not agree with
the contentions of the learned counsels for
the appellant that the offence committed by
the appellant would fall in the Second part
(Part II) of Section 304 IPC. Having held
that the appellant is guilty of the offence
under Section 304 Part I, we partially
accept this appeal and alter the offence
from that of Section 302 of the Code to one
under Section 304 Part I of the Indian Penal
Code.

Further, giving due consideration
to the facts and circumstances of the
present case, we find that the sentence of
10 years rigorous imprisonment would be
adequate for the offence of which the
appellant has been held guilty.

We, therefore, award a sentence
of 10 years rigorous imprisonment to the
appellant. The judgment under appeal is
modified in the above terms.

38. The appellant is in jail. The
appellant
has
been granted
bail
on
15.4.1999. However, pursuant to the order
dated 3.12.2019, in execution of the nonbailable warrant, the appellant was lodged
in jail. The bail application filed by
appellant on 3.1.2020 has been rejected by
this Court vide order dated 19.12.2019.
According to the learned counsels for the
appellant, the appellant has remained in jail
for about a period of nine years.

Be that as it may, the appellant
shall serve out the sentence awarded above.

The appeal is allowed in part.

The office is directed to send
back the lower court record along with a
certified copy of this judgment for
information and necessary compliance.

The
compliance
report
be
furnished to this Court through the
Registrar General, High Court, Allahabad
within one month.
----------
(2022)05ILR A64
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1255 of 2016

Bablu @ Nand Kumar ...Appellant
Versus
State of U.P. ...Respondent
5 All. Bablu @ Nand Kumar Vs. State of U.P.
65
Counsel for the Appellant:
Sri Rehan Ahmad Siddiqui

Counsel for the Respondent:
Shri Chandra Shekhar Pandey, Additional
Government Advocate

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
323, 326 - Section 4 of D.P. Act-challenge to
-conviction-modification of sentence-dying
declaration-deceased
got
burnt in
her
matrimonial home and died in hospital
during treatment-PW-6 recorded the dying
declaration in which deceased stated her
husband set her ablaze after pouring
kerosene oil and nobody was present thereargument about overwriting of time has no
force-conviction can be based on dying
declaration alone without corroboration if it
is trustworthy and genuine-no evidence of
demand of dowry as the witness turned
hostile-sentence
u/s
302
IPC
is
confirmed.(Para 2 to 29)

B. It is well settled that, as a matter of law,
a dying declaration can be acted upon
without corroboration. There is not even a
rule of prudence which has hardened into a
rule of law that a dying declaration cannot
be acted upon unless it is corroborated. The
primary effort of the court has to be find out
whether the dying declaration is true. If it is,
no question of corroboration arises. it is only
if the circumstances surrounding the dying
declaration are not clear or convincing that
the court may, for its assurance, look for
corroboration to the dying declaration.
(Para 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Jayamma & anr. Vs St. of Kar. (2021) 6 SCC
213

2. Hem Chand Vs St. of Har. (1994) 6 SCC 727
3. G.V. Siddaramesh Vs St. Kar. (2010) 3 SCC
152
4. Govind Singh Vs St. of Chattishgarh (2019)
17 SCC 812

5. Amrish Kumar Kashyap Vs St. of U.P. CRLA
NO.s 303 & 316

6. Ashadeen & ors. Vs St. of U.P. (2018) 102
ACC 807

7. Mahesh Vs St. of U.P. (2017) 6 ALJ 75

8. Pravin Khimji Chauhan Vs St. of Mah. CRLA
No. 978 of 2012

9. Shyam Shankar Kankariya Vs St. of Mah.
(2006) 13 SCC 165

10. St. of U.P. Vs Ram Sagar Yadav & ors.
(1985) 1 SCC 552

11. Sundar Singh & ors. Vs St. of U.P. (1964)
SCC Online Alld. 30 FB
(Delivered by Hon'ble Mrs. Saroj Yadav J.)

1. This criminal appeal has been filed
by the appellant/convict Bablu @ Nand
Kumar against the judgement and order
dated
14.7.2016
passed
by
learned
Additional Sessions Judge/Court No.VIII,
District Faizabad in Sessions Trial No.57 of
2015
convicting
and
sentencing
the
appellant under Section 304-B of Indian
Penal Code, 1860 ( in short 'I.P.C.') with
life-imprisonment, under Section 323 I.P.C.
with six months' imprisonment and fine of
Rs.500/-and in default of fine, one month's
additional simple imprisonment, under
Section 326 I.P.C. with seven years'
imprisonment and fine of Rs.10,000/- and
in default of fine, six months' additional
simple imprisonment, under Section 498-A
I.P.C. with two years' imprisonment and
fine of Rs.5,000/- and in default of fine,
three
months'
additional
simple
imprisonment, under Section 4 of the
Dowry Prohibition Act with one year's
imprisonment and fine of Rs.1,000/- and in
66 INDIAN LAW REPORTS ALLAHABAD SERIES
default of fine, two months' additional
simple imprisonment.

The main grounds of challenge in
memo of appeal are that the impugned
judgement and order is not sustainable in
the eye of law and deserves to be quashed
because the trial court has awarded
maximum punishment provided under
Section 304-B I.P.C. Prosecution witnesses
have not supported the prosecution story.
The
statement-in-chief
and
crossexamination of the prosecution witnesses
are contradictory but this aspect has not
been considered by the learned trial court.
The offences under Section 498-A, 304-B,
323 and 326 I.P.C. and Section 4 of the
Dowry Prohibition Act ( in short 'D.P.Act.')
are not made out against the appellant. The
statements of prosecution witnesses are
highly doubtful. The learned trial court has
not considered the arguments of the
appellant and evidence on record, in the
right perspective. Learned trial court has
failed to apply its judicial mind while
passing
the
conviction
order.
No
independent witness was examined by the
prosecution. The learned trial court has
committed illegality in disbelieving the
defence version. There is no eye-witness of
the crime. The appellant is innocent and has
committed no crime. The trial court has
wrongly disbelieved the evidence of
appellant and the fact that he himself got
burnt while trying to save the life of his
wife, the deceased.

2. The facts necessary for disposal of
this appeal in short are as under :-

An F.I.R. was registered at Case
Crime No.592/2014 on the basis of written
report dated 5.11.2014 submitted by the
complainant Raghuveer at Police Station
Kotwali
Ayodhya,
Faizabad.
it
was
mentioned in the written report that
daughter of the complainant named Saloni
aged about 24 years was married to Bablu
@ Nand Kumar about 4 years' back
according to Hindu customs and rites. The
appellant and other family members used to
harass her for extra dowry and asked for
motorcycle and Rs.20,000/- in cash and
other goods. Deceased Saloni used to tell
about
this
to
her
mother
and
the
complainant whenever she came to her
parental home. Bablu @ Nand Kumar told
her that he will go on 1.11.2014 to the
parental house of the deceased and if the
demands were not fulfilled, then he will
beat and burn the deceased after pouring
kerosene oil. The complainant tried to fulfil
the demands of the appellant and his family
members but on 2.11.2014, Bablu set
ablaze the daughter of the complainant
after pouring kerosene oil. His daughter
was being treated in burn-ward of Faizabad
Hospital.

3. After investigation, chargesheet
was submitted against the appellant/convict
only, under Sections 323, 326, 498-A, 304B I.P.C. and Section 3/4 of the D.P. Act.
The concerned magistrate took cognizance
and committed the case to the court of
Sessions for trial. The Sessions Court
framed charge under Section 304-B I.P.C.
and in alternative, charge under Section
302 I.P.C. The charges under sections 498A, 323, 326 of I.P.C. and under Section 4 of
the D.P.Act were also framed.

4. The prosecution in order to prove
its case, examined seven witnesses in toto.
These witnesses are P.W.-1 Raghuveer the
complainant, P.W.-2 Renu the sister of the
deceased, P.W.-3 Smt. Kunta Devi mother
of the deceased, P.W.-4 Rajendra Kumar
Nishad a witness of the vicinity, P.W.-5 Dr.
Vipin Kumar who conducted the post
5 All. Bablu @ Nand Kumar Vs. State of U.P.
67
mortem on the cadaver of the deceased,
P.W.-6 Shri Vinit Kumar Naib Tehsildar
who recorded the dying declaration of the
deceased and P.W.-7 Shri Dinesh Kumar
Dwivedi, Circle Officer who investigated
the case. Apart from oral evidence,
documents, Exhibit Ka-1 to Exhibit Ka-10
were also proved. The genuineness of
chargesheet Exhibit Ka-7, carbon copy of
concerned G.D. Exhibit Ka-9, Specimen
seal Exhibit Ka-11, information of death by
medical officer Exhibit Ka-12, Memo
regarding death of the victim Exhibit Ka13, Police Papers Exhibit Ka-16 and Exhiit
Ka-17, Exhibit Ka-14, Exhibit Ka-15 and
Exhibit Ka-18 were not disputed by the
counsel
of
the
appellant
and
made
endorsement on these documents to that
effect. Thereafter, the statement of the
appellant/ convict was recorded under
Section 313 of the Code of Criminal
Procedure,1973 (in short 'Cr.P.C.') firstly
on 2.1.2016 wherein the convict denied the
fact of torturing the deceased for non
fulfilment of demand of dowry and the
unnatural death of his wife. He also stated
that the witnesses had deposed falsely and
refused to adduce any evidence in defence.
He also stated that he is innocent, and also
that he got burnt while trying to save his
wife and remained hospitalised for nine
days and was still not well completely. The
additional statement of appellant/ convict
under Section 313 Cr.P.C. was recorded on
25.3.2016
wherein
he
was
asked
specifically about dying declaration of the
deceased
and
he
stated
that
dying
declaration was recorded illegally. The
certificate from the doctor appears to be
taken afterwards and there is over-writing
on timing. The deceased has given no
statement against him and the statement
was recorded of someone else maliciously.
He has also stated that investigating officer
has submitted the chargesheet without any
basis. The complainant and other witnesses
of facts have stated nothing against him and
all have stated that the appellant is
innocent. The dying declaration is forged
and witnesses P.W.-6 and P.W.-7 have given
false evidence against law. He also stated
that he wanted to adduce evidence in
defence. He got examined D.W.-1 Dr. Hari
Om Srivastava in defence.

5. After hearing the arguments of both
the sides, on the basis of evidence available
on record, the trial court came to the
conclusion that the delay in lodging the
F.I.R. has been explained by the father of
the deceased who is complainant of the
case. It is also proved that the deceased
died an unnatural death i.e. due to burn
injuries which have been proved by the
doctor P.W.-5. who conducted the post
mortem on the cadaver of the deceased. It is
also proved that the incident took place
within seven years of marriage of the
deceased with the appellant/convict. As far
as the demand of dowry and act of cruelty
in that regard soon before the death is
concerned, the father of the deceased who
has been examined as P.W.-1 has proved
very well all these facts in his examinationin-chief though in his cross examination, he
has not supported what he has stated in the
examination-in-chief
but
has
proved
Exhibit Ka-1 his written report, lodged by
him. Other witnesses of facts examined as
P.W.-2, P.W.-3 and P.W.-4 have turned
hostile but there is no contradiction on the
point that the deceased Saloni was married
to Bablu @ Nand Kumar and her parents
gave dowry according to their capacity.
There is no dispute that the deceased died
of burn-injuries. The accused has nowhere
stated in his statement under Section 313
Cr.P.C. that he never demanded any dowry
and his wife Saloni got burnt herself or was
set-ablaze by someone else or accidentally,
68 INDIAN LAW REPORTS ALLAHABAD SERIES
he has only stated that he is innocent and he
also got burnt while trying to save his wife.
The incident took place in the matrimonial
home of the deceased so the persons living
in the matrimonial home should have
explained the real cause of burn i.e. how
she got burnt but nothing has been stated
by the appellant/convict in his statement
under Section 313 Cr.P.C. explaining or
disclosing the fact how the deceased got
burnt.
The
deceased
in
her
dying
declaration
has
stated
that
the
appellant/convict poured kerosene-oil over
her and set her ablaze. When the deceased
was asked, that did anybody else torture or
harass her, she denied and categorically
answered that only Bablu her husband, was
there and he burnt her after dousing with
kerosene oil. The learned trial court has
further concluded that the dying declaration
has been proved by P.W.-6 Shri Vinit
Kumar, Naib Tehsidar and it is also proved
that dying declaration was recorded after
following
required
formalities.
The
deceased
has
also
told
P.W.-6
that
appellant/convict used to beat her everyday
after consuming liquor. The deceased has
not implicated anybody else except her
husband. The trial court relied upon the
dying declaration of deceased as well as on
examination-in-chief of the P.W.-1 the
complainant and also the medical witness
P.W.-5 who conducted the post-mortem and
appellant
has
been
convicted
under
Sections 304-B, 323, 326, 498-A of I.P.C.
and also under Section 4 of the D.P.Act.

6. Being aggrieved of his conviction,
this appeal has been preferred.

7. Heard Shri Rehan Ahmad Siddiqui
assisted by Mohd. Ehsan and Shri Chandra
Shekhar
Pandey,
learned
Additional
Government Advocate for the respondent State.

8.

Learned
counsel
for
the
appellant/convict
during
arguments,
emphasised on the point that the extreme
punishment has been awarded by the trial
court under Section 304-B I.P.C. and it is
not
a
case
deserving
the
extreme
punishment. The minimum punishment
under Section 304-B is seven years and the
appellant/ convict has already undergone a
period of nine and a half years, so his
sentence i.e. imprisonment for life under
Section 304-B, be converted into the period
undergone by him.

9.

Learned
counsel
for
the
appellant/convict also submitted that P.W.-2
Renu, sister of the deceased, P.W.-3 Kunta,
mother of the deceased who are witnesses
of facts have turned hostile. Even P.W.-1
Raghuveer, the complainant, father of the
deceased has given contradictory statement,
to what What he has stated in his
examination-in -chief and written in written
report Exhibit ka-1 on the basis of which
F.I.R. was registered.

10. Learned counsel also assailed the
dying declaration of the deceased by
arguing that dying declaration was not
recorded after following all due formalities.
The deceased was burnt upto 95%, so she
was not in a position to give a dying
declaration, hence the sentence should be
modified to that effect.

11.

Learned
counsel
for
the
appellant/convict relied upon the following
case laws :-

(a). Jayamma and another Vs.
State of Karnataka reported in (2021) 6
SCC 213

(b). Hem Chand Vs. State of
Haryana reported in (1994) 6 SCC 727.
5 All. Bablu @ Nand Kumar Vs. State of U.P.
69

(c ). G.V. Siddaramesh Vs. State
of Karnataka.

reported in (2010) 3 SCC 152.

(d) Govind Singh Vs. State of
Chattishgarh

( 2019) 17 SCC 812.

(e). Amrish Kumar Kashyap Vs.
State of U.P. reported in Criminal Appeal
Nos.303 and 316 of 2016 decided on
4.5.2016.

(f). Ashadeen and others Vs. State
of U.P

reported in 2018 (102) ACC 807.

(g). Mahesh Vs. State of U.P.
reported

in 2017(6) ALJ 75.

(h). Pravin Khimji Chauhan Vs.
The State of Maharashtra reported in
Criminal Appeal NO.978 of 2012 decided
on 15.2.2022.

12. To the contrary, learned A.G.A. Shri
Chandra Shekhar Pandey submitted that there is
evidence that the appellant set ablaze the
deceased after dousing with kerosene oil, so it is
a case of murder and appellant/convict should
have been punished under Section 302 I.P.C.
instead of under Section 304-B I.P.C. He also
argued that dying declaration of the deceased
was recorded promptly by authorised executive
magistrate i.e. Naib Tehsildar after observing all
due formalities. He took certificate of the doctor
before recording the dying declaration and also
at completion. The dying declaration is genuine,
as the deceased very genuinely stated that the
appellant/convict set her ablaze after dousing
her with kerosene oil. She had not named any
other family member of the convict, hence the
appeal should be dismissed as minimum
punishment under Section 302 I.P.C. is life
imprisonment.

12. Considered the rival submissions
of the learned counsel of the parties and
perused the original record.

13. Evidence available on record
reveals that there is no dispute about the
fact that the deceased was married with
appellant/convict about 4 years back of the
incident and she got burnt in her
matrimonial home on 2.11.2014 at the time
mentioned in the F.I.R. and subsequently
died of burn injuries on 9.11.2014 in
hospital
during
treatment.
Only
fact
remains how she got burnt or who burnt
her. In this regard, P.W.-1, the complainant
father of the deceased has proved in his
examination-in-chief that he solemenised
marriage
of
his
daughter
with
the
appellant/convict
after
giving
dowry
according to his status/capacity but the
appellant/convict demanded extra dowry
after marriage and started torturing and
harassing the deceased and continuously
harassed and tortured her for dowry and
ultimately set her ablaze after dousing her
with kerosene oil. He has proved his
written report Exhibit Ka-1 and also proved
his signature on it. He has explained the
reason for delay in lodging the F.I.R. that
he remained busy in treatment of her
daughter so could not lodge the F.I.R.
promptly. It is proved that deceased was
admitted in the hospital after she got burnt,
on the same night. The hospital authority
informed the executive authority for
recording her dying declaration. P.W.-6
Naib Tehsildar reached the hospital to
record the same on the same night. He
recorded the dying declaration after taking
fitness certificate from the doctor and he
got it certified after completion of dying
declaration that the deceased was fit for
giving the statement. The thumb impression
of the deceased put on the Dying
declaration is not in shape which shows
that it was in burnt condition. On behghalf
of the appellant/convict, no suggestion has
been made to P.W.-6 Naib Tehsildar that the
thumb impression is not of the deceased
70 INDIAN LAW REPORTS ALLAHABAD SERIES
rather it has been suggested that the thumb
impression of the patient was taken
afterwards,
after
getting
the
dying
declaration
prepared
somewhere
else.
Perusal of dying declaration Exhibit Ka-6
shows that it is in question answer form
and very precise. The deceased has
categorically stated that her husband Bablu
set her ablaze after pouring kerosene oil.
She has also stated that nobody else was
present there. She has not implicated any
other person or family member of the
appellant/convict. On being asked, she has
answered that she has two children, one
daughter and one son. The daughter is elder
and the son is younger. On being asked, she
has also stated that the appellant/convict
used to abuse her and beat her daily after
consuming liquor. Again, upon being
asked, she has stated that none else used to
torture her. The dying declaration has been
duly proved by P.W.-6 though there is an
over writing on time but P.W.-6 has
explained it and denied the suggestion that
dying declaration was written at the house
of the witness. The certificate of the doctor
shows the time of starting as 11.35 P.M.
and 11.50 P.M. as time of completion. In
such a situation, this argument about over
writing of time has no force.

15. It is settled law that the conviction
can be based on dying declaration alone
without corroboration if the court finds the
dying
declaration
trusthworthy
and
genuine.

16. In Jayamma and another Vs.
State of Karnataka (supra), the Hon'ble
Apex Court after quoting the principles
regarding dying declaration, summarised
by the Apex Court in Shyam Shanker
Kankariya Vs. State of Maharashthra
(2006) 13 SCC 165 has observed that "it
goes without saying that when the dying
declaration
has
been
recorded
in
accordance with law, and it gives a
cogent and plausible explanation of the
occurrence, the court can rely upon it as
the solitary piece of evidence to convict
the accused."

17. In Shyam Shanker's case
(supra),
Hon'ble
Apex
Court
has
summarised the principles governing
dying declaration as follows :-

"11. .... (i). There is neither rule
of law nor of prudence that dying
declaration cannot be acted upon without
corroboration.

(ii). If the Court is satisfied that
the
dying
declaration
is
true
and
voluntary it can base conviction on it,
without corroboration.

(iii). The court has to scrutinize
the dying declaration carefully and must
ensure that the declaration is not the
result
of
tutoring,
prompting
or
imagination.
the
deceased
had
an
opportunity to observe and identify the
assailants and was in a fit state to make
the declaration.

(iv). Where dying declaration is
suspicious, it should not be acted upon
without corroborative evidence.

(v). Where the deceased was
unconscious and could never make any
dying declaration the evidence with
regard to it is to be rejected.

(vi). A dying declaration which
suffers from infirmity cannot form the
basis of conviction.

(vii). Merely because a dying
declaration does not contain the details as
to the occurrence, it is not to be rejected.

(viii). Equally, merely because it
is brief statement, it is not to be discarded.
On the contrary, the shortness of the
statement itself guarantees truth.
5 All. Bablu @ Nand Kumar Vs. State of U.P.
71

(ix). Normally the court in order
to satisfy whether the deceased was in a fit
mental condition to make the dying
declaration look up to the medical opinion.
But where the eyewitness has said that the
deceased was in a fit and conscious state to
make the dying declaration, the medical
opinion cannot prevail.

(x).
Where
the
prosecution
version differs from the version as given in
the dying declaration, the said declaration
cannot be acted upon.

(xi). Where there are more than
one statement in the nature of dying
declaration, one first in point of time must
be preferred. Of course, if the plurality of
dying declaration could be held to be
trustworthy and reliable, it has to be
accepted."

18. In State of U.P. Vs. Ram Sagar
Yadav and others : 1985(1) SCC 552, the
Hon'ble Apex Court has held as under :-

"13. It is well-settled that, as a
matter of law, a dying declaration can be
acted upon without corroboration. There is
not even a rule of prudence which has
hardened into a rule of law that a dying
declaration cannot be acted upon unless it
is corroborated. The primary effort of the
court has to be to find out whether the
dying declaration is true. If it is, no
question of corroboration arises. It is only
if the circumstances surrounding the dying
declaration are not clear or convincing that
the court may, for its assurance, look for
corroboration to the dying declaration."

19. In the present matter, as noted
above, dying declaration Exhibit Ka-6 has
been duly proved by the executive
magistrate who recorded the same and
certificate of fitness has been obtained
before starting and after completion. This
dying declaration was recorded at the time
when even F.I.R. was not lodged by the
father or any other kith and kin of the
deceased. She was admitted in a burnt state
in the hospital and hospital authority sent
information to the executive authority for
recording the same. So there remains no
possibility that dying declaration was
recorded at the behest of the kith and kin of
the deceased or after tutoring by any kith
and kin of the deceased. The dying
declaration is in question answer form and
a very genuine dying declaration wherein
deceased has implicated only the culprit
and none else. This dying declaration is
worthy of credence and it raises confidence
of the court that it is genuine and is not a
result of tutoring.

20. The case laws Jayamma and
another Vs. State of Karnataka (supra)
cited by the learned counsel for the
appellant/convict
is
of
no
help
to
appellant/convict because in Jayamma's
case (supra), the Hon'ble Apex Court found
that direct or indirect dominance of the
police officer appears to have influenced
the answers only in one direction. The
narration of events were so accurate that
even a witness in the normal state of mind
cannot be expected to narrate. The person
making statement was very old to narrate
the incident with precision as what was
made. There was sufficient evidence that
the victim was under the effect of sedative
pain killers. The dying declaration was
recorded by a police officer and not by an
executive or judicial magistrate. There were
contradictions in the statement of the
doctor and the police officer recording the
statement. The thumb impression of the
victim
allegedly
put
on
the
dying
declaration was very natural. There was no
sign of burnt on the thumb impression. The
police officer did not take the certificate of
72 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses before recording the dying
declaration.
Judicial
or
executive
magistrate was not called for recording of
dying
declaration
though
there
was
opportunity. In the present matter, dying
declaration was recorded by executive
magistrate
and
after
taking
fitness
certificate, before starting recording of
dying declaration and also after completion
of the dying declaration. The deceased was
a
young
lady
married
with
appellant/convict just 3-4 years ahead of
the incident.

21. Hem Chand's case(supra) is also
of no help to the appellant/ conviction
because in that case, the accused was held
guilty on the basis of presumption raised
under Section 113-B of the Indian Evidence
Act, therefore the Hon'ble Apex Court
converted the sentence of life imprisonment
into 10 years' imprisonment but in the
present case, the evidence on record is
there that the deceased was set ablaze by
the
appellant/convict.
The
dying
declaration is a genuine one, having won
confidence of the court.

22.

In
Govind
Vs.
State
of
Chattishgarh (supra), during the verbal
quarrel, accused threw chimni lamp on the
deceased resulting in burn injury to the
deceased. Since the incident took place at
the spur of moment, so the apex court
converted the sentence awarded under
Section 302 I.PC. to Section 304(2) of
I.P.C. The situation in the present case is
altogether different. There is evidence on
record that the appellant/ convict used to
beat and abuse the deceased everyday after
consuming liquor.

23. Similarly, rest of the case laws
cited on behalf of the appellant/convict are
of no help due to the difference in facts and
circumstances of the present case.

24. In the matter at hand, dying
declaration was recorded by the executive
magistrate upon the information received
from
hospital
authorities.
the
dying
declaration is a genuine and trustworthy
and inspires confidence in the court. It was
a fit case where the Sessions Judge ought to
have convicted the appellant/convict under
Section 302 I.P.C. i.e. for the alternative
charge already framed instead of convicting
under Section 304-B I.P.C. However, the
Sessions Judge has awarded maximum
punishment provided under Section 304-B
I.P.C. i.e. sentence for life imprisonment,
that is very well warranted considering the
facts and circumstances and evidence
available on record.

25. Now considering all the facts and
circumstances of the case, analysed as
above, we deem it fit to modify the finding
of the trial court to the effect that the
appellant/ convict is guilty of offence
punishable under Section 302 I.P.C. for
alternative charge already framed and the
punishment awarded by the trial court for
life imprisonment to the appellant is
confirmed under Section 302 I.P.C.instead
of under Section 304-B I.P.C. for the
reasons that, there is evidence on record
which indicates that the deceased was burnt
alive by the appellant and appellant alone.
The dying declaration of the deceased
noted and analysed above has established
beyond reasonable doubt, the guilt of the
appellant.
The
dying
declaration
is
trustworthy and genuine. There is nothing
on the record to doubt the credibility of the
dying declaration made by the deceased.
Here we made it clear that it is not an
enhancement of punishment as the trial
5 All. Bablu @ Nand Kumar Vs. State of U.P.
73
court has already awarded sentence of
imprisonment for life.

26. However, the sentences awarded
under Section 323, 326, 498-A I.P.C. and
under Section 4 of the D.P. Act are not
sustainable. The appellant cannot be
convicted under Section 323 and 326 I.P.C.
for inflicting simple and grievous injuries
on the person of the deceased if he is being
punished under Section 302 I.P.C. for
causing death.

27. In Sundar Singh and others Vs.
State of U.P 1954 SCC Online Allahabad
30 (FB), the Full Bench of this Court has
observed as under :-

"23.
Every
offence,
i.e.,
a
separate offence, has a distinct, punishment
prescribed for it. There are, however,
certain exceptions whereby a series of
successive offences have to be treated as
"one
offence"
for
the
purposes
of
punishment; apart from this rule, or
exception,
a
man
is answerable
&
punishable for each offence that he
commits. A man who sets upon another
with a lathi and beats him with it by
delivering successive blows is, strictly
speaking, guilty of so many separate
offences as the blows that he delivers.

"24. If a man causes simple hurt
by one blow and grievous hurt by another,
then he can be convicted but not punished
both under Sections 323 and 325, I.P.C.
Section
235,
Criminal
P.C.,
makes
provision for the trial of a person for more
offences than one when such offences are
committed during the course of the "same
transaction", though at the same time a
man may be tried for acts constituting one
offence as also constituting another offence
when combined together. Sub-section (4) of
this section, however, says : "Nothing
contained in this section shall affect the
Indian Penal Code, 1860, Section 71."

25. Section 71 of the Penal Code,
is in these words :

"Where anything which is an
offence is made up of parts, any of which
parts is itself an offence, the offender shall
not be punished with the punishment of
more than one of such his offences, unless it
be so expressly provided.

Where anything is an offence
falling within two or more separate
definitions of any Law in force for the time
being by which offences are defined or
punished, or

Where several acts of which one
or more than one would by itself or
themselves constitute an offence, constitute,
when combined, a different offence, the
offender shall not be punished with a more
severe punishment than the court which
tries him could award for any one of such
offences."

26. This section provides two
illustrations. Illustration (a) is worded thus
:

"A gives Z fifty strokes with a
stick. Here A may have committed the
offence of voluntarily causing hurt to Z by
the whole beating, and also by each of the
blows which make up the whole beating. If
A were liable to punishment for every blow,
he might be imprisoned for fifty years, one
for each blow. But he is liable only to one
punishment for the whole beating."

27. This illustration, to my mind,
clearly indicates the scope and the true
meaning of the first part of Section 71. The
meaning of the important word in that
section, namely, the word "parts" has got to
be understood in the light of this
illustration, otherwise, there is likely to be,
as unfortunately there has been, a complete
misunderstanding of the meaning which the
Legislature intended for that word, or the
74 INDIAN LAW REPORTS ALLAHABAD SERIES
sense in which that word was used by the
Legislature in that section.

28.
The
second
illustration,
namely, illustration (b) is in these words :

"But if, while A is beating Z, Y
interferes, and A intentionally strikes Y,
here, as the blow given to Y is no part of
the act whereby A voluntarily causes hurt
to Z, A is liable to one punishment for
voluntarily causing hurt to Z, and to
another for the blow given to Y."

29.
This
illustration
further
clarifies the position, for it makes it clear
that when an offence is committed by an
individual as against two separate persons,
though, broadly speaking, both the offences
may have been committed during the
course of one transaction, he is made liable
for the assault on both the individuals. It is
Important to note that the first part of
Section 71, I.P.C., really deals with a case
in which the whole of the act is punishable
under the same section or under allied
sections, namely, where a series of offences
partake of the same nature. This part of the
section, to my mind, does not deal with a
case where a part of man's action
constitutes one kind of offence and another
part of his action, though committed in a
sequence in the course of one transaction,
falls under another section, not allied.

30. The second part of Section 71
of the Code makes provision for a
contingency when the same act constitutes
more offences than one."

28. There is no evidence of demand of
dowry as the witnesses produced to
establish the fact have turned hostile.
hence, the conviction under Section 4 of
The Dowry Prohibition Act is also set
aside.

29. To sum up, the appellant is held
guilty for the offence punishable under
Section 302 I.P.C., for alternative charge
already framed and the sentence of life
imprisonment awarded by the trial court is
hereby confirmed but under Section 302
I.P.C. instead of under Section 304-B I.P.C.
The conviction of the appellant/convict U/S
323, 326 and 498-A I.P.C. and U/s 4 of The
Dowry Prohibition Act is hereby set aside.

29. The appeal is partly allowed,
accordingly.

30. Since the the appellant/ convict is
already in jail, he shall serve his sentence in
jail, confirmed hereinabove.

31. Let copy of this judgement
alongwith original record of trial court be
sent to the trial court concerned for
information and necessary action.
----------
(2022)05ILR A74
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1314 of 2005
connected with
Criminal Appeal No. 1529 of 2005

Sri Kant & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Anurag Shukla

Counsel for the Respondent:
Sri Umesh Chandra Verma, Additional Govt.
Advocate

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian