# Balram v. State of U.P

- **Citation:** (2021) 10 ILRA 68
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-08
- **Case number:** J. Criminal Appeal No. 221 of 2015
- **Bench:** Devendra Kumar Upadhyaya, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balram-v-state-of-u-p-46398
- **Pages:** 11

## Headnote

Law
-
Appeal
against
conviction - The Indian Penal Code, 1860 -
Section 302 - murder - Section 304 -
culpable
homicide
not
amounting
to
murder - dying declaration - in order to
form the sole basis for conviction of the
accused-appellant, the dying declaration
has to be truthful and voluntary - duty of
prosecution to prove its case against the
accused-appellant
beyond
reasonable
doubt - benefit of doubt belonged to the
accused - Suspicion, howsoever grave
cannot take place of a proof .(Para -
26,40)

Accused/appellant, elder brother of husband of
the deceased - beaten deceased - some
altercation between the ladies - deceased
returned
after
attending
nature's
call
-
accused/appellant and one - poured kerosene
oil on the deceased - set her ablaze by igniting
match stick - deceased sustained burn injuries -
10 All. Balram Vs. State of U.P.
69
dying declaration recorded by the Naib Tehsildar
- different version of occurrence narrated by
deceased in her dying declaration - FIR
registered under section 304 - Trial court
convicted under section 302 - hence instant
appeal.

HELD:-Prosecution projected two versions of
the
same
incident
which
are
mutually
irreconcilable and failed to prove its case
beyond reasonable doubt. Trial court failed to
consider
and
appreciate
the
material
contradictions appearing in the prosecution
case and evidence led by the prosecution and
defence in its right perspective and , thus,
has erred in convicting and sentencing the
appellant, who is entitled to the benefit of
doubt. (Para - 41)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

68 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein seat of injury no.(2) at forehead of
deceased and persistent demand of dowry
shows that soon before her death, she was
subjected to cruelty and harassment by her
husband for, or in connecting with, demand
of dowry. Prosecution has successfully
discharges its duty and it is obligatory on
the Court to raise a presumption that
accused caused the dowry death. No
unimpeachable evidence has been adduced
by the accused to prove his innocence and
rebut his complicity in commission of
crime of dowry death. There is no
illegality, infirmity or perversity in the
impugned judgment and order passed by
the Court below warranting interference by
this Court in exercise of its appellate
jurisdiction. Learned Court below has
rightly held the present appellant guilty
under Section 304-B and 498-A IPC and
under Section 4 of Dowry Prohibition Act.

64. In view of aforesaid discussions
and observations, I do not find any good
ground to alter or modify the impugned
judgment and order dated 30.11.2018
passed in Sessions Trial No.529 of 2015.

65. In the result, the present appeal
lacks merit and is, accordingly, dismissed.
The conviction and sentence of appellant
under Sections 304-B and 498-A IPC and
under Section 4 of D.P. Act as awarded by
Court
below
is
hereby
upheld
and
impugned judgment and order dated
30.11.2018 passed by the Additional
District Judge/Fast Track Court (created by
XIVth
Finance
Commission),
Kanpur
Nagar in Sessions Trial No.529 of 2015, is
hereby affirmed and maintained.

66. Let a copy of this judgment along
with lower Court's record be sent to
concerned Court below, for compliance. A
compliance report be sent to this Court.
Copy of this judgment be also supplied to
accused-appellant
through
concerned
Superintendent of Jail
----------
(2021)10ILR A68
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.10.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J
THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.

Criminal Appeal No. 221 of 2015

Balram ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Alok Srivastava, Ninnie Shrivastava, Pankaj
Kumar Singh, Ravi Kant Pandey

Counsel for the Respondent:
Govt. Advocate

(A)
Criminal
Law
-
Appeal
against
conviction - The Indian Penal Code, 1860 -
Section 302 - murder - Section 304 -
culpable
homicide
not
amounting
to
murder - dying declaration - in order to
form the sole basis for conviction of the
accused-appellant, the dying declaration
has to be truthful and voluntary - duty of
prosecution to prove its case against the
accused-appellant
beyond
reasonable
doubt - benefit of doubt belonged to the
accused - Suspicion, howsoever grave
cannot take place of a proof .(Para -
26,40)

Accused/appellant, elder brother of husband of
the deceased - beaten deceased - some
altercation between the ladies - deceased
returned
after
attending
nature's
call
-
accused/appellant and one - poured kerosene
oil on the deceased - set her ablaze by igniting
match stick - deceased sustained burn injuries -
10 All. Balram Vs. State of U.P.
69
dying declaration recorded by the Naib Tehsildar
- different version of occurrence narrated by
deceased in her dying declaration - FIR
registered under section 304 - Trial court
convicted under section 302 - hence instant
appeal.

HELD:-Prosecution projected two versions of
the
same
incident
which
are
mutually
irreconcilable and failed to prove its case
beyond reasonable doubt. Trial court failed to
consider
and
appreciate
the
material
contradictions appearing in the prosecution
case and evidence led by the prosecution and
defence in its right perspective and , thus,
has erred in convicting and sentencing the
appellant, who is entitled to the benefit of
doubt. (Para - 41)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

1. Panneerselvam Vs St. of T.N. , (2008) 17
SCC 190

2. Jayamma Vs St. of Karn. , AIRONLINE
2021 SC 241

3. P. Ramesh Vs St. Represented by
Inspector of Police , (2019) 20 SCC 593

4. Laxman Vs St. of Mah., 2003 (1) JIC 30
(SC)

5. Chandra Narain Yadav Vs Shibjee Yadav &
ors. , 2000 (2) JIC 801 (SC)

6. Sham Shankar Kankaria Vs St. of Mah.,
(2006) 13 SCC 165

7. St. of Guj. Vs Ayrajbhai Punjabhai Varu ,
(2016) 14 SCC 151

8. Vallabhaneni Venkateshwara Rao Vs St. of
A.P. , (2009) 6 SCC 484

9. Upendra Pradhan Vs St. of Orissa , (2015)
11 SCC 124

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard Ms. Ninnie Shrivastava,
learned amicus curiae for the appellant, Sri
Vishwash Shukla, learned A.G.A. for the
State and have perused the entire record
available before us.

2.
After
being
convicted
and
sentenced in Sessions Trial No.183/2012
arising out of Crime No.61/2012, under
Section 302 Indian Penal Code (hereinafter
referred to as "I.P.C."), Police Station
Tarabganj, District Gonda by the learned
Additional District & Sessions Judge,
Court No.2, Gonda vide judgment and
order
dated
22.01.2015,
the
sole
accused/appellant has filed the instant
criminal appeal.

3. By the impugned judgment and
order, the learned trial court convicted and
sentenced
the
appellant
to
undergo
imprisonment for life and a fine of
Rs.10,000/- for the offence under Section
302 I.P.C. and in default of payment
thereof, the appellant was directed to
undergo
three
months'
additional
imprisonment.

4. The facts as unfolded by the
prosecution, in short conspectus, are that a
written report was handed over at Police
Station Tarabganj by the first informant,
Smt. Reshma Devi on 21.03.2012 stating
therein that her daughter, deceased-Smt.
Bindoo was married to Indrajeet resident of
Pathar Begwa, Police Station Tarabganj,
District Gonda ten years ago. Indrajeet
works at Mumbai. The deceased-Bindoo
lived in Gonda with her children, namely,
Deepak and Rohit aged about nine and four
years respectively. The accused-Balram,
elder brother of Indrajeet, had beaten
Bindoo, the deceased on 14.02.2012 at
about 05:00 PM in the evening due to
brawl between the ladies. On 15.02.2012 in
70 INDIAN LAW REPORTS ALLAHABAD SERIES
the morning at about 04:00 AM, when the
deceased-Bindoo returned after attending
nature's call, accused/appellant, Balram and
one Aafta Devi poured kerosene oil on the
deceased and thereafter, set her ablaze by
igniting match stick. The deceased-Bindoo
sustained burn injuries, who was taken to
hospital by younger daughter of the first
informant, namely, Smt. Renu and her
husband Manoj. The deceased-Bindoo was
admitted in Government Hospital, Gonda.
Her husband, Indrajeet used to take care of
deceased by visiting Gonda from Mumbai.
However, the deceased-Bindoo succumbed
to her injuries on 08.03.2012 during her
treatment.

5. The Naib Tehsildar, Ratnesh
Tiwari, PW-3 recorded dying declaration of
deceased on 15.02.2012 after obtaining
certificate regarding fitness of deceased
from the Emergency Medical Officer,
District Hospital Gonda.

6. The autopsy on the cadaver of the
deceased was conducted on 09.03.2012
which is Ex. Ka-12, according to which,
the cause of death is septicemic shock as a
result of ante-mortem burn injuries.

7. On the basis of aforesaid information
by the first informant, an F.I.R. was
registered under Section 304 I.P.C. at Police
Station Tarabganj, District Gonda against
accused-Balram and Smt. Aafta Devi.

8. After registration of the case, the
Investigating Officer, Incharge Inspector,
Shashikant Mishra, PW-5 prepared site plan,
Ex. Ka-9, recorded the statements of
witnesses under Section 161 Cr.P.C. and after
completion of investigation, chargesheet, Ex.
Ka-10 was submitted against accused-Balram
only under Section 302 I.P.C.

9. As the case was exclusively
triabled by the court of Sessions, the
learned Magistrate committed the case to
the court of Sessions, which came to be
registered as Sessions Trial No.183/2012.
The learned Sessions Judge framed charge
under Section 302 I.P.C. against accusedBalram, which was read over and explained
to the accused to which he pleaded not
guilty and claimed to be tried.

10. To bring home the guilt of the
appellant to the hilt, the prosecution has
examined as many as eight witnesses. Smt.
Reshma Devi, PW-1 is the first informant
and mother of the deceased. Smt. Renu,
PW-2 is real sister of the deceased who is
said to have accompanied the deceased
while she was being taken to the hospital
after sustaining burn injuries. Ratnesh
Tiwari, PW-3 is the Naib Tehsildar who
has recorded dying declaration of the
deceased on 15.02.2012. Mohd. Jaseem,
PW-4 is the Naib Tehsildar who has proved
panchayatnama, Ex. Ka-3. Shashikant
Misra, PW-5 is the Incharge Inspector, who
has prepared site plan, Ex. Ka-9. Sanjay
Kumar Pandey, PW-6 is the S.H.O. who
has filed charge sheet and a report, which
are Ex. Ka-10 and Ex. Ka-11 respectively.
Dr. Anil Kumar, PW-7 is the doctor who
has conducted the autopsy on the cadaver
of the deceased. S.I. Ram Lakhan Tiwari,
PW-8 is also an Investigating Officer of the
case.

11.

After
the
conclusion
of
prosecution evidence, statement of accused
was recorded under Section 313 Cr.P.C.
The accused stated that the deceased burnt
herself to commit suicide, thus, he has
stated the prosecution case to be false. He
claimed himself to be innocent and also
stated to have been falsely implicated.
10 All. Balram Vs. State of U.P.
71

12. Defence witnesses, namely, Smt.
Nandini Devi, Smt. Durgawati and Deepak
Vishwakarma were also examined as DW1, DW-2, DW-3 respectively from the side
of the accused.

13. The learned trial court vide
impugned judgment and order dated
22.01.2015 convicted the accused/appellant
as aforesaid. Hence the instant appeal.

14. Learned amicus curiae appearing
for the appellant has vehemently argued
that the first information report regarding
the occurrence was lodged on 21.03.2012
i.e., after a delay of about 34 days from the
date of incident and atleast after a delay of
about thirteen days from the date of death
of the deceased, Smt. Bindoo. The
prosecution has failed to explain the cause
of such delay. The first information report
was, thus, lodged after consultation with
relatives and others to falsely implicate the
accused/appellant.

15. She has further submitted that the
prosecution story as contained in the first
information report, Ex. Ka-13 is entirely
different from the version of occurrence as
narrated by the deceased in her dying
declaration, Ex. Ka-2, which itself casts
doubt on the veracity of the prosecution
story. According to her, the learned trial
court has returned finding of guilt against
the weight of evidence available on record
by ignoring the testimonies of defence
witnesses,
particularly,
Deepak
Vishwakarma, DW-3, son of the deceased
who is a competent witness, therefore, the
same is perverse and liable to be set aside.

16. She has also argued that having
sustained serious burn injuries, the victim
was physically and mentally unable to
make any voluntary declaration in the form
of dying declaration, Ex. Ka-2. Therefore,
no reliance, whatsoever, on such dying
declaration can be placed in order to hold
the accused/appellant guilty.

17. Her further submission is that the
prosecution
itself
has
projected
two
versions of the same occurrence, which are
irreconcilable, therefore, the prosecution
has failed to prove its case against the
accused-appellant
beyond
reasonable
doubt. The accused/appellant deserves
benefit of doubt and the impugned
judgment and order being unsustainable
deserves to be set aside.

18. To lend support to her aforesaid
arguments, she has placed reliance upon the
judgments of the Hon'ble Supreme Court in
Panneerselvam vs. State of Tamil Nadu
reported
in
(2008)
17
SCC
190,
Jayamma vs. State of Karnataka reported
in AIRONLINE 2021 SC 241 and P.
Ramesh
vs.
State
Represented
by
Inspector of Police reported in (2019) 20
SCC 593.

19. Per contra, Sri Vishwash Shukla,
learned A.G.A. has submitted that a hapless
lady has been done to death by the
accused/appellant in a brutal manner by
setting her ablaze after pouring kerosene oil
on the person of the deceased. He has
further stated that the dying declaration,
Ex. Ka-2 has been duly recorded by the
Naib Tehsildar, Ratnesh Tiwari, PW-3 after
obtaining a report regarding mental and
physical fitness of the deceased being
capable
of
making
voluntary
dying
declaration. Therefore, reliance upon such
dying declaration, Ex. Ka-2 has rightly
been placed by the learned trial court.

20. Learned A.G.A. would, then,
contend that the finding of guilt has rightly
72 INDIAN LAW REPORTS ALLAHABAD SERIES
been returned by the learned trial court on
the basis of evidence available before it,
which is duly supported by the law laid
down by the Hon'ble Supreme Court in
Laxman vs. State of Maharashtra, 2003
(1) JIC 30 (SC), Chandra Narain Yadav
vs. Shibjee Yadav and others, 2000 (2)
JIC 801 (SC) and Sham Shankar
Kankaria vs. State of Maharashtra,
(2006) 13 SCC 165 wherein it has been
held by the Hon'ble Supreme Court that
dying declaration can be the sole basis of
conviction if found to be voluntary and
truthful and that it is not required to be
recorded in any particular form.

21. A Constitution Bench of the
Hon'ble Supreme Court in Laxman's case
(supra) in para-3 has held as under:-

"3. The juristic theory regarding
acceptability of a dying declaration is that
such declaration is made in extremity,
when the party is at the point of death and
when every hope of this world is gone,
when every motive to falsehood is silenced,
and the man is induced by the most
powerful consideration to speak only the
truth. Notwithstanding the same, great
caution must be exercised in considering
the weight to be given to this species of
evidence on account of the existence of
many circumstances which may affect their
truth. The situation in which a man is on
death bed is so solemn and serene, is the
reason in law to accept the veracity of his
statement. It is for this reason the
requirements
of
oath
and
crossexamination are dispensed with. Since the
accused
has
no
power
of
crossexamination, the Court insist that the dying
declaration should be of such a nature as
to inspire full confidence of the court in its
truthfulness and corrects. The Court,
however, has to always be on guard to see
that the statement of the deceased was not
as a result of either tutoring or prompting
or a product of imagination. The Court
also must further decide that the deceased
was in a fit state of mind and had the
opportunity to observe and identify the
assailant. Normally, therefore, the Court in
order to satisfy whether the deceased was
in a fit mental condition to make the dying
declaration look up the medical opinion.
But where the eye-witnesses state that the
deceased was in a fit and conscious state to
make the declaration, the medical opinion
will not prevail, nor can it be said that
since there is no certification of the doctor
as to the fitness of the mind of the
declarant, the dying declaration is not
acceptable. A dying declaration can be oral
or in writing and in any adequate method
of communication whether by words or by
signs or otherwise will suffice provided the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced
to writing by someone like a Magistrate or
a doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence of a Magistrate is absolutely
necessary, although to assure authenticity
it is usual to call a Magistrate, if available
for recording the statement of a man about
to die. There is no requirement of law that
a dying declaration must necessarily be
made to a Magistrate and when such
statement is recorded by a Magistrate there
is no specified statutory form for such
recording. Consequently, what evidential
value or weight has to be attached to such
statement necessarily depends on the facts
and circumstances of each particular
case. What is essentially required is that
the
person
who
records
a
dying
declaration must be satisfied that the
deceased was in a fit state of mind. Where
it is proved by the testimony of the
10 All. Balram Vs. State of U.P.
73
Magistrate that the declarant was fit to
make
the
statement
even
without
examination by the doctor the declaration
can be acted upon provided the Court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor
is essentially a rule of caution and
therefore, the voluntary and truthful
nature
of
the
declaration
can
be
established otherwise."(emphasized by us)

22. The Hon'ble Supreme Court in
Sham Shankar Kankaria's case (supra)
in para-11 has held as under:-

"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........................."

(emphasized by us)

23. The approach to be adopted by
the
courts
while
evaluating
dying
declaration has also been summarized by
the Hon'ble Supreme Court in paras-15
and
18
in
State
of
Gujarat
vs.
Jayrajbhai Punjabhai Varu reported in
(2016) 14 SCC 151 as under:-

"15. The courts below have to
be extremely careful when they deal with
a dying declaration as the maker thereof
is not available for the cross-examination
which poses a great difficulty to the
accused person. A mechanical approach
in relying upon a dying declaration just
because
it
is
there
is
extremely
dangerous. The court has to examine a
dying declaration scrupulously with a
microscopic eye to find out whether the
dying declaration is voluntary, truthful,
made in a conscious state of mind and
without being influenced by the relatives
present or by the investigating agency
who may be interested in the success of
investigation or which may be negligent
while recording the dying declaration.

18. The court has to weigh all
the attendant circumstances and come to
the independent finding whether the
dying declaration was properly recorded
and whether it was voluntary and
truthful. Once the court is convinced that
the dying declaration is so recorded, it
may be acted upon and can be made a
basis of conviction. The courts must bear
in mind that each criminal trial is an
individual aspect. It may differ from the
other trials in some or the other respect
and, therefore, a mechanical approach to
the law of dying declaration has to be
shunned."

24. Even in Chandra Narain
Yadav's case (supra), relied upon by the
prosecution, the Hon'ble Supreme Court
has held that it is settled that a dying
declaration, if found to be truthful and
74 INDIAN LAW REPORTS ALLAHABAD SERIES
voluntary, can form the sole basis of
conviction even without corroboration.

25. Thus, so far as the capacity of the
maker of dying declaration in this case is
concerned, Ratnesh Tiwari, PW-3 has
testified in unequivocal terms that he had
recorded
the
dying
declaration
on
15.02.2012 after ascertaining the fact that
the victim was conscious and was in a fit
state of mind to make a dying declaration.
According to him, before and after
recording of dying declaration, Ex. Ka-2,
he had obtained certificate from Emergency
Medical Officer, Gonda regarding medical
and physical fitness of the declarant, Smt.
Bindoo. Therefore, the argument of learned
amicus curiae to the effect that after having
burn injuries, the victim was not in a fit
state of mind to make a dying declaration
worth acceptance is not acceptable.

26. However, in order to form the sole
basis for conviction of the accusedappellant, the dying declaration, Ex. Ka-2
has to be truthful and voluntary as held by
the Hon'ble Supreme Court in Sham
Shankar
Kankaria's
case
(surpa),
Jayrajbhai
Punjabhai
Varu's
case
(supra) and Chandra Narain Yadav's
case (surpa).

27. The prosecution story as culled out
from the first information report, Ex. Ka-13 is
that the accused/appellant, Balram, elder
brother of husband of the deceased, had
beaten Bindoo, the deceased on 14.02.2012 at
about 05:00 PM in the evening due to some
altercation between the ladies. On 15.02.2012
in the morning at about 04:00 AM, when the
deceased-Bindoo returned after attending
nature's call, the accused/appellant, Balram
and one Aafta Devi poured kerosene oil on
the deceased and thereafter, set her ablaze by
igniting match stick. The deceased-Bindoo
sustained burn injuries who was taken to
hospital by younger daughter of the first
informant, namely, Smt. Renu, PW-2 and her
husband Manoj. Thus, according to the first
information report, Ex. Ka-13, the specific
time of occurrence is about 04:00 AM on
15.02.2012, which was witnessed by Smt.
Renu, PW-2 the real sister of the deceased.
The first informant, Smt. Reshma Devi is not
an eye witness of the said incident.

28. However, what we notice is that an
altogether different version of the occurrence
has been narrated by the deceased, Smt.
Bindoo in her dying declaration, Ex. Ka-2. In
the dying declaration, Ex. Ka-2, she has
stated to have been set ablaze by the accusedappellant in the intervening night of
14/15.02.2012 at about 11-12 PM. The
deceased, in her dying declaration, Ex. Ka-2,
has also stated that Smt. Kismalti W/o
Kaushal, her younger mother-in-law tried to
put off fire by throwing a blanket upon her.
Thus, according to the dying declaration, Ex.
Ka-2, at the time of alleged occurrence, Smt.
Renu, PW-2, the real sister of deceased, was
not present and Smt. Kismalti W/o Kaushal
who is said to have been present and who is
said to have attempted to put off fire by
throwing blanket upon the deceased, has not
been examined from the side of prosecution
without assigning any reason therefor. She
was an important witness for ascertaining the
true manner and time of the occurrence,
however, the prosecution has chosen not to
produce Smt. Kismalti without assigning any
reason therefor, despite the fact that she has
been shown to be a witness in the charge
sheet, Ex. Ka-10.

29. We also notice the fact that
according to the first information report,
Ex. Ka-13, apart from the appellantBalram, one Smt. Aafta Devi is also said to
have participated in the commission of
10 All. Balram Vs. State of U.P.
75
crime, however, in dying declaration, Ex.
Ka-2, the declarant has not named Smt.
Aafta Devi. No evidence against Smt.
Aafta Devi could be gathered during the
investigation. Therefore, charge sheet was
not submitted against Smt. Aafta Devi after
conclusion of investigation.

30. The real sister of the deceased,
Smt. Renu, PW-2 in her testimony has
stated that the incident took place on
15.02.2012 in the morning at about 04:00
AM. Therefore, the time of occurrence as
disclosed in the first information report, Ex.
Ka-13 is quite different from the time of
occurrence mentioned in dying declaration,
Ex. Ka-2. The deceased, Bindoo in her
dying declaration, Ex. Ka-2 has stated that
at the time of occurrence, Smt. Kismalti
W/o Kaushal tried to put off fire.
Therefore, the fact that the prosecution did
not
produce
Smt.
Kismalti
without
assigning any reason assumes significance.
It also raises doubt on the presence of Smt.
Renu
on
the
spot
because
Deepak
Vishwakarma, DW-3, who is son of the
deceased, has stated that on the date of
occurrence, he was sleeping beside his
mother. He saw his mother, who herself
poured kerosene oil upon her and got it
ignited by herself. He has also stated that
Smt. Kismalti threw a blanket upon his
mother and fled away from the spot due to
fear. This witness being son of the
deceased, appears to be reliable witness
whose presence on the fateful night with
her mother is quite natural. He appears to
be more reliable than any other prosecution
witnesses in respect of time and manner of
occurrence.

31. We may also notice that the
investigating officer, Sashikant Mishra,
PW-5 has, in his testimony, stated that the
place of occurrence was an open place as
shown in the site plan, Ex. Ka-9. During
the inspection of the site of occurrence, he
did not notice any burnt up bed sheet,
mattress or cot etc. nor did he collect any
such article from the site of occurrence.
This fact again lends support to the
statement of Deepak Vishwakarma, DW-3
who has stated that her mother after
pouring kerosene oil on herself went out
and once she returned from there, this
witness saw her burning. That is why, no
burnt up bed sheet, mattress or cot etc.
were perhaps found or recovered from the
spot.

32. It is also a significant fact that the
prosecution has clearly projected two
different versions of the same incident.
One, as narrated by the declarant/deceased,
Smt. Bindoo in her dying declaration, Ex.
Ka-2, according to which, the accusedappellant, Balram is said to have set her
ablaze
in
the
intervening
night
of
14/15.02.2012 at about 11:00-12:00 PM
due
to
some
brawl.
Despite
dying
declaration, Ex. Ka-2 dated 15.02.2012 to
the aforesaid effect being in existence, an
altogether different version of this very
occurrence is also projected by the
prosecution as culled out from the first
information report, Ex. Ka-13 which was
lodged on 21.03.2012, according to which,
apart from the appellant-Balram, one Aafta
Devi is also said to have participated in
setting the deceased ablaze, which is said to
have been witnessed by Smt. Renu, PW-2
real sister of the deceased. The deceased
died on 08.03.2012. The first information
report, Ex. Ka-13, however, was lodged on
21.03.2012 after a delay of about thirteen
days from the date of death of the deceased,
Smt. Bindoo. The two different versions of
the same occurrence, which the prosecution
has projected, have material differences
with regard to time of occurrence, manner
76 INDIAN LAW REPORTS ALLAHABAD SERIES
of occurrence and the persons who
allegedly committed the crime in question.

33. According to dying declaration,
Ex. Ka-2, Smt. Kismalti attempted to put
off fire by throwing a blanket upon the
deceased. She was shown as a witness in
the charge sheet, Ex. Ka-10. She was, thus,
an important witness for ascertaining the
true manner and time of the occurrence,
however, she has not been examined by the
prosecution without assigning any reason,
whatsoever, for the same. Therefore, it
would be fair to draw an inference that
perhaps she was not prepared to support
false prosecution case.

34. The Hon'ble Supreme Court in
Vallabhaneni Venkateshwara Rao vs.
State of Andhra Pradesh reported in
(2009) 6 SCC 484 in paras-21 and 23 has
held as under:-

"21. It is seen from the records,
three different stories have been projected by
the prosecution. As per Ext. P-12 recorded at
12.45 p.m., three persons attacked with sticks
in the presence of one eyewitness Jagan. As
per Ext. C-2 recorded at 2.30 p.m. ten
persons attacked with crowbar. As per Ext.
P-14 recorded by PW 8 before the death of
the deceased at 2.50 p.m. seven persons
attacked with sticks in the presence of two
new eyewitnesses. No clear answer comes
from the prosecution as to which of the three
versions is believable. Ext. P-12 suffers from
two infirmities. Firstly, medical evidence is
contradictory. Secondly, only eyewitness
Jagan mentioned in Ext. P-12 was not
examined. The non-examination of the said
eyewitness would result in the lack of
corroboration to Ext. P-12.

23. Above being the position, it
would be unsafe to convict the appellantaccused. Their convictions are accordingly
set aside. They be set at liberty forthwith if
not required to be in custody in any other
case."

35. The learned trial court has found the
witness Deepak Vishwakarma, DW-3, son of
the deceased as a competent witness to
understand and depose, however, it has failed
to appreciate the fact that DW-3 being son of
the deceased was a natural witness whose
presence beside his mother on the date of
occurrence was more natural than the
presence of Smt. Renu, PW-2, the married
real sister of the deceased.

36. Deepak Vishwakarma, DW-3, who
is son of the deceased, has stated that his
mother, deceased-Smt. Bindu gave him
mobile phone to watch picture and she went
out of the house and once she returned, she
was engulfed in fire. He has also stated that
his
mother
did
not
complain
about
appellant/accused.

37. The Hon'ble Supreme Court in
Jayamma's case (supra) while setting aside
the judgment and order of conviction passed
by the High Court and upholding the
judgment of acquittal passed by the learned
trial court in a case where the prosecution has
projected two different versions of the same
incident and where the first information
report was found to be lodged after some
delay has, inter alia, relied upon following
circumstances:-

"22.

xxxx

 xxxx

xxxx

 xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

Sixthly, the alleged motive for
the homicidal death is highly doubtful.
10 All. Balram Vs. State of U.P.
77
There is not an iota of evidence, and the
prosecution has made no effort to verify
the truth in the statement that the
appellants poured kerosene and lit the
victim on fire only because her son had
assaulted the husband of Appellant No.1
and the accused were insisting on
payment of Rs.4,000/ which was spent on
the treatment of the said assault-victim.
Not much can be said when the deceased's
own son and daughterinlaw have denied
this incident and rather claimed that their
mother/motherinlaw committed suicide.

The Seventh reason to dissuade
us from harping upon Ex.P5 is the
conduct of the parties, i.e., a natural
recourse expected to happen. Had it been
a case of homicidal death, and the victim's
son (PW2) and her daughter-in-law
(PW5) had witnessed the occurrence, then
in all probabilities, they would have, while
making arrangement to take the injured to
hospital, definitely attempted to lodge a
complaint to the police. Contrarily, the
evidence of the doctor and the police
officer suggest that while the son,
daughterinlaw and neighbour of the
deceased were present in the hospital,
none approached the police to report such
a ghastly crime. It is difficult to accept
that the son and daughter-in-law of the
deceased were won over by the accused
persons within hours of the occurrence.
This unusual conduct and behaviour
lends support to the parallel version that
the victim might have committed suicide.

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx"

(emphasized by us)

38. In the present case too, the
incident occurred on 14/15.02.2012, the
deceased, Smt. Bindoo admittedly died on
08.03.2012, her dying declaration, Ex. Ka2 stood recorded on 15.02.2012, however
the first information report came to be
lodged on 21.03.2012 i.e., after a delay of
about 34 days from the date of incident and
atleast after a delay of about thirteen days
from the date of death of the deceased,
Smt. Bindoo. Deepak Vishwakarma, DW-3
has stated that his mother, deceased-Smt.
Bindoo burnt herself. The learned trial
court,
thus,
lost
sight
of
aforesaid
significant facts while returning the finding
of guilt of the accused/appellant.

39. The learned trial court also failed
to appreciate the fact that according to
Shashikant Mishra, PW-5, the investigating
officer, no burnt up residue of the bed
sheet, mattress or cot etc. were recovered
from the site of occurrence, which clearly
indicates that the site of occurrence was
different from the room or thatch of the
deceased.

40. We are conscious of the fact that
in the present case, a young lady has died
but the fact remains that it is the duty of
prosecution to prove its case against the
accused-appellant
beyond
reasonable
doubt. Suspicion, howsoever grave cannot
take place of a proof. In this regard, the
Hon'ble Supreme Court in Upendra
Pradhan vs. State of Orissa reported in
(2015) 11 SCC 124 in para-14 has held as
under:-

"14. Taking the first question for
consideration, we are of the view that in
case there are two views which can be
culled out from the perusal of evidence and
application of law, the view which favours
the accused should be taken. It has been
recognised as a human right by this Court.
In Narendra Singh v. State of M.P., [(2004)
10 SCC 699 : 2004 SCC (Cri) 1893], this
Court has recognised presumption of
78 INDIAN LAW REPORTS ALLAHABAD SERIES
innocence as a human right and has gone
on to say that: (SCC pp. 708 & 709, paras
30-31 & 33)

"30. It is now well settled that
benefit of doubt belonged to the accused.
It is further trite that suspicion, however
grave may be, cannot take place of a
proof. It is equally well settled that there is
a long distance between ''may be' and
''must be'.

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx" (emphasized by us)

41. Thus, it can be safely concluded
that the prosecution has projected two
versions of the same incident which are
mutually irreconcilable. Therefore, on the
basis of aforementioned discussions, we are
of the considered view that the prosecution,
in the instant case, has been unable to
answer as to which of the two prosecution
stories is believable. The prosecution has,
thus, failed to prove its case beyond
reasonable doubt. The learned trial court
has failed to consider and appreciate the
material contradictions appearing in the
prosecution case. The learned trial court
has also failed to appreciate and consider
the evidence led by the prosecution and
defence in its right perspective and, thus,
has erred in convicting and sentencing the
appellant, who is entitled to the benefit of
doubt. Therefore, the impugned judgment
and order passed by the learned trial court
is not sustainable in the eyes of law and the
same is liable to be set aside. The accusedappellant is entitled to be acquitted of
charge levelled against him.

42. In view of the aforesaid, the
present criminal appeal is allowed and
consequently impugned judgment and
order dated 22.01.2015 passed by the
learned Additional District & Sessions
Judge, Court No.2, Gonda in Sessions Trial
No.183/2012
arising
out
of
Crime
No.61/2012, under Section 302 of I.P.C.,
Police Station Tarabganj, District Gonda is
hereby set aside.

43. The accused-appellant, Balram is
in jail. Let the accused-appellant, Balram
be released from jail forthwith, if he is not
wanted in any other case.

44. In compliance of provisions of
Section 437A Cr.P.C., it is directed that the
accused-appellant, Balram shall furnish a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned within two weeks of his release
from the jail.

45. Before we part with the case, we
express
our
appreciation
for
the
distinguished assistance rendered by Ms.
Ninnie Shrivastava, the learned amicus
curiae in the instant appeal. The learned
amicus curiae shall be paid a sum of
Rs.10,000/-.

46. Let the record of lower court
along with a copy of this order be
transmitted forthwith to the learned trial
court concerned for necessary information
and compliance.
----------
(2021)10ILR A78
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE RAJEEV SINGH, J

Criminal Appeal No. 276 of 2011