# Deepak & Anr v. State of U.P

- **Citation:** (2022) 10 ILRA 359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Crl. Appeal No. 1005 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-anr-v-state-of-u-p-47728
- **Pages:** 15

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506, - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
evaluation of evidences - offence of murder -
FIR - informant alleged that his niece was killed
by both of the accused by pouring kerosene oil
on her and set her ablaze - dying declaration is
the sole basis of conviction - distinction between
'murder' and 'culpable homicide' - admittedly
death of deceased was a homicidal death since
she died after 17 days of burning incident - in
post mortem-report cause of death was
septicaemia shock due to ante mortem flame
burning - hence, instant case is falls within
ambit of section 304 IPC not under section 302
IPC - quantum of sentence - impugned
conviction & sentences u/s 302/34 IPC is liable
to be converted into u/s 304(part-1) IPC - since,
sentence to undergone more than 10 years of
incarceration with remission court maintain the
fine and default sentences for section 452 and
354 of IPC - appeal partly allowed.
(Para - 45, 46, 47, 53, 54, 55, 56)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506 - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
evaluation of evidences - offence of murder -
dying declaration - principle for accepting dying
declaration - if dying declaration is true, reliable
and has been recorded in accordance with
established
practice
and
principles,
its
correctness & authenticity cannot be challenged
and further, hostility of witnesses of fact cannot
demolish the value & reliability of dying
declaration of the deceased.
(Para - 29, 30, 31)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Section - 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506 - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section- 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
360 INDIAN LAW REPORTS ALLAHABAD SERIES
accused punished offence committed u/s 3(2)(v)
SC/ST Act, as well as offence convicted u/s
302/34 IPC - no independence witness or
evidence
on
record
shows
that
accused
committed offence on the ground that deceased
belongs to a community covered under SC/ST
Act - trial court misconstrued the provisions of
SC/ST Act - hence, conviction and sentence u/s
3(2)(v) is set aside. (Para - 43, 44)

Appeal Partly allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,966 of 49,126. This is a partial read: ask again with offset=39966 for what follows._

10 All. Deepak & Anr. Vs. State of U.P.
359
that the suit is pending for the past 27
years, it is ordered that the Trial Court shall
proceed with the suit, fixing two dates of
effective hearing every week and shall
conclude the trial within four months next
after hearing parties and their witnesses,
who have already not been examined. The
District Judge, Basti shall cause the records
of the case to be transmitted forthwith to
the District Judge, Sant Kabir Nagar. .

10. Let a copy of this order be
communicated to the Additional Civil
Judge (Jr. Div.) Vth, Basti through the
learned District Judge, Basti, the District
Judge, Basti and the District Judge, Sant
Kabir
Nagar
by
the
Registrar
(Compliance).
----------
(2022) 10 ILRA 359
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Appeal No. 1005 of 2013

Deepak & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Shailendra Kumar Verma, Sri Sheshadri
Trivedi, Sri Satish Trivedi(Sr. Adv.)

Counsel for the Opp. Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506, - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
evaluation of evidences - offence of murder -
FIR - informant alleged that his niece was killed
by both of the accused by pouring kerosene oil
on her and set her ablaze - dying declaration is
the sole basis of conviction - distinction between
'murder' and 'culpable homicide' - admittedly
death of deceased was a homicidal death since
she died after 17 days of burning incident - in
post mortem-report cause of death was
septicaemia shock due to ante mortem flame
burning - hence, instant case is falls within
ambit of section 304 IPC not under section 302
IPC - quantum of sentence - impugned
conviction & sentences u/s 302/34 IPC is liable
to be converted into u/s 304(part-1) IPC - since,
sentence to undergone more than 10 years of
incarceration with remission court maintain the
fine and default sentences for section 452 and
354 of IPC - appeal partly allowed.
(Para - 45, 46, 47, 53, 54, 55, 56)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506 - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
evaluation of evidences - offence of murder -
dying declaration - principle for accepting dying
declaration - if dying declaration is true, reliable
and has been recorded in accordance with
established
practice
and
principles,
its
correctness & authenticity cannot be challenged
and further, hostility of witnesses of fact cannot
demolish the value & reliability of dying
declaration of the deceased.
(Para - 29, 30, 31)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Section - 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506 - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section- 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
360 INDIAN LAW REPORTS ALLAHABAD SERIES
accused punished offence committed u/s 3(2)(v)
SC/ST Act, as well as offence convicted u/s
302/34 IPC - no independence witness or
evidence
on
record
shows
that
accused
committed offence on the ground that deceased
belongs to a community covered under SC/ST
Act - trial court misconstrued the provisions of
SC/ST Act - hence, conviction and sentence u/s
3(2)(v) is set aside. (Para - 43, 44)

Appeal Partly allowed. (E-11)

List of Cases cited:

1. Maniben Vs St. of Guj., 2009 Lawsuit SC
1380 : (2009) 8 SCC 796

2. Koli Lakhmanbhai Chandabhai Vs St. of Guj.,
1999 (8) SCC 624

3. Ramesh Harijan Vs St. of U.P., 2012 (5) SCC
777

4. St. of U.P. Vs Ramesh Prasad Misra & anr.,
1996 AIR (SC) 2766

5. Lakhan Vs St. of M. P., (2010) 8 SCC 514

6. Krishan Vs St. of Har., (2013) 3 SCC 280

7. Ramilaben Hasmukhbhai Khristi Vs St. of
Guj., (2002) 7 SCC 56

8. Ram Das Vs St. of U.P., AIR 2007 SC 155

9. Dharmendra Vs St. of U.P., 2011 Cri LJ 204
(All)

10. St. of Guj. v. Munna, 2016 Cri LJ 4097
(Guj)

11. Vishnu Vs St. of U.P., Criminal Appeal No.
204 of 2021, decided on 28.1.2021

12. St. of U. P. Vs Mohd. Iqram & anr., (2011) 8
SCC 80

13. Bengai Mandal @ Begai Mandal Vs St. of
Bihar, (2010) 2 SCC 91

14. Chirra Shivraj Vs St. of Andhra Pradesh,
(2010) 14 SCC 444

15. Gautam Manubhai Makwana Vs St. of
Guj.,
Criminal
Appeal
No.83
of
2008,
decided on 11.9.2013

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. The instant Criminal Appeal has
been directed against the judgment and
order dated 2.3.2013 passed by the Special
Judge (SC/ST Act) / Additional Sessions
Judge, Ghaziabad in Sessions Trial No. 402
of 2008 (Case Crime No. 230 of 2007), P.S.
Babugarh, District Ghaziabad convicting
and sentencing the appellants under Section
302 I.P.C. read with Section 34 I.P.C. for
life imprisonment and a fine of Rs. 10,000/-
each with stipulation of default clause,
under Section 354 IPC for one year
rigorous imprisonment, under Section 452
IPC for two years rigorous imprisonment
and under Section 3 (2)(v) The Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act (in short ''the
SC/ST Act') for life imprisonment each and
a fine of Rs. 5,000/- with stipulation of
default clause.

2. Brief facts, as culled out from the
record, are that a First Information Report
was lodged by the informant, Sukhpal son
of Ram Chandra, resident of village Garhi
Hoshiyarpur, Police Station Babugarh,
Ghaziabad, at Police Station Babugarh,
District Ghaziabad with the averments that
on 16.7.2007 at 11.30 a.m. when her niece
Km. Laxmi, daughter of Kripal (Julaha),
was present in the house, Pintu and Deepak
sons of Satpal @ Sattu entered in the house
and asked her as to why outstanding rent of
Rs. 100/- for the video C.D. was not paid
by her. Pintu inquired that many days ago
he had given a letter to her and why she
had not given answer? To this, niece of the
informant objected and started scolding
10 All. Deepak & Anr. Vs. State of U.P.
361
them. This angered the accused. Deepak
brought the canister containing kerosene
oil, opened the lid and poured upon the
niece of informant at once and Pintu set her
ablaze. On her shrieks, informant and other
persons reached there and they both ran
away. She was severely burnt and sent to
Hapur for treatment.

3. On 19.7.2007, dying declaration of
the victim (Ext. ka-9) was recorded by the
Tehsildar. He also took her signature over
the same. Victim was conscious at the time
of statement.

4. On the basis of the written report
(Ext. ka-1), chik First Information Report
(Ext. Ka-5) was registered at Police Station
concerned on 16.7.2007 at 12.35 p.m.
against the accused appellants as case
crime no. 230 of 2007. G.D. entry was also
registered at the same time.

5. The F.I.R. was investigated by the
Sub-Inspector of the concerned Police
Station
and
subsequently
it
was
investigated by the Station House Officer
of the concerned Police Station. During
course of investigation, the Investigating
Officer recorded the statement of witnesses
and victim, prepared site plan, inquest
report was prepared and post mortem was
performed. The investigation was over and
after completing all formalities, charge
sheet was submitted against the accused
appellants.
The
learned
Magistrate
summoned the accused and committed the
case to Court of Sessions, as prima facie
charges were for the sessions triable
offences.

6. The Court of Sessions framed the
charges as accused were summoned in
commission of the offence under Sections
452, 354, 302/34, 504, 506 IPC and Section
3(2)(v) SC/ST Act. The accused pleaded
not guilty and wanted to be tried. Trial
started and in support of its case,
prosecution examined 14 witnesses, who
are as follows:

1
Kripal
PW-1 (father of
the deceased)
2
Sukhpal
PW-2 (informant)
(uncle
of
deceased)
3
Mithlesh
PW-3
4
Savitri
PW-4 (aunt of
deceased)
5
Kamlesh
PW-5
6
Raju
@
Raj
Kumar
PW-6
7
Ummed Singh
PW-7
8
Rumal Singh
PW-8
9
Indrajeet
PW-9 (witness of
recovery)
10
Praveen Kumar
Tyagi
PW-10
(Investigating
Officer-II)
11
H.C.P. Rampal
Singh
PW-11 (scribe of
the F.I.R.)
12
S.I.
Bijendra
Singh
PW-12
(Investigating
Officer-I)
13
Harish Chandra
Pandey
PW-13
(Technical
Assistant posted
in
G.T.B.
Hospital,
Delhi,
who proved the
writing
and
signature of Dr
R.P. Singh, who
performed
the
362 INDIAN LAW REPORTS ALLAHABAD SERIES
post mortem of
the deceased.
14
Suryabhan Giri PW-14
(Tehsildar,
who
recorded
the
dying declaration
of the deceased)

7. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Written report
Ext. A-1
2
Memo
of
recovery
of
vacant canister
Ext. A-2
3
Letter
of
deceased
Ext. A-3
4
Memo
of
recovery
of
cloths
of
deceased
Ext. A-4
5
Chik F.I.R.
Ext. A-5
6
G.D.
Ext. A-6
7
Post
Mortem
Report
Ext. A-7
8
Charge sheet
Ext. A-8
9
Dying
declaration
of
the deceased
 Ext. A-9

8. Deceased was hospitalised after the
occurrence. She died after 17 days of the
occurrence during the course of treatment.

9. After conclusion of evidence,
statements of accused were recorded under
Section 313 of Cr.P.C., in which they
pleaded
their
innocence
and
false
implication. In support of its case defence
has examined DW-1 Kajal, DW-2 Pramod
Kumar and DW-3 Ashok Kumar.

10. Heard Shri Satish Trivedi, learned
Senior Advocate assisted by Shri Sheshadri
Trivedi, learned counsel for the appellants
and Shri Patanjali Mishra, learned AGA for
the State.

11.

Learned
Senior
Advocate
appearing for the appellants submitted that
accused
persons
have
been
falsely
implicated in this case. They have not
committed the present offence. It is further
submitted by learned counsel that all the
witnesses of fact have turned hostile and
have not supported the prosecution version
and on the basis of analysis of their
evidence, no guilt against the accused
appellants is established and proved.
Learned Senior Counsel for the appellants
next submitted that in this case there are
two dying declarations i.e. one recorded by
the Investigating Officer in the form of
statement under Section 161 CrPC and the
other by the Tehsildar. When two sets of
dying declarations are available and same
are contrary to each other, the subsequent
dying declaration implicating the appellants
could not have been believed and accepted
and on the basis of the said dying
declaration the appellants could not have
been held guilty for a serious offence of
murder. It is further submitted that the
dying-declarations of the deceased were
recorded when she was surviving, but the
same have no corroboration with any
prosecution evidence. All the witnesses of
fact have turned hostile and nobody
supported
the
prosecution
version.
Therefore, learned trial court committed
grave error by convicting the accused on
the basis of dying-declaration only when it
was not corroborated at all. Offence under
Section 3(2) (v) SC/ST Act is not made out,
10 All. Deepak & Anr. Vs. State of U.P.
363
as F.I.R. nowhere states that the deceased
was belonging to a particular community.
No documentary evidence to prove that the
deceased was belonging to Scheduled Caste
or Scheduled Tribe, has been produced
either before Investigating Officer or
Sessions Court.

12. Learned Senior Counsel for the
appellants additionally submitted that if, for
the sake of argument, it is assumed that
appellants have committed the offence, in
that case also no offence under Section 302
IPC is made out. Maximum this case can
travel up to the limits of offence under
Section 304 IPC because the deceased died
after 17 days of the occurrence due to
developing the infection in her burnwounds, i.e., septicaemia. As per catena of
judgments of Hon'ble Apex Court and this
Court, offence cannot travel beyond section
304 IPC, in case the death occurred due to
septicaemia. Learned Senior Counsel for
the appellants also submitted that autopsy
report also shows that cause of death was
septicaemic shock due to ante mortem
flame burning. Learned counsel relied on
the judgment in the case of Maniben vs.
State of Gujarat [2009 Lawsuit SC 1380],
and the judgment in Criminal Appeal
Nos.1438 of 2010 and 1439 of 2010 dated
7.10.2017 and judgment of Criminal
Appeal No.2558 of 2011 delivered on
1.2.2021 by this Court and several other
judgments.

13. No other point or argument was
raised by the learned Senior Counsel for the
appellants and he confined his arguments
on above points only.

14. Learned AGA, per contra,
vehemently opposed the arguments placed
by counsel for the appellants and submitted
that conviction of accused can be based
only on the basis of dying-declaration, if it
is
wholly
reliable.
It
requires
no
corroboration. Moreover, testimony of
hostile witnesses can also be relied upon to
the extent it supports the prosecution case.
Learned trial court has rightly convicted the
appellants under Section 302 IPC and
sentenced
accordingly.
Offence
under
Section 3(2)(v) SC/ST Act is clearly made
out against the appellants. There is no merit
in the appeal and the same may be
dismissed.

15. First of all learned counsel for the
appellants has raised the issue relating to
the hostility of the witnesses. Witnesses of
the fact were examined before learned trial
court. All the witnesses have turned hostile
but the testimony of hostile witnesses
cannot be thrown away just on the basis of
the fact that they have not supported the
prosecution case and were cross-examined
by the prosecutor. The testimony of hostile
witnesses can be relied upon to the extent it
supports the prosecution case. Needless to
say that the testimony of hostile witnesses
should be scrutinized meticulously and
very cautiously.

16. While examining the testimonies
of witnesses of fact PW-1, PW-2, PW-3,
PW-4, PW-5, PW-6, PW-7, PW-8 and PW9, it appears that they have denied the fact
as to who was the main assailant and who
set ablaze the victim and on this point they
have
been
declared
hostile
by
the
prosecution and cross-examination has
been conducted by the prosecution but it is
very significant to note that from the entire
deposition of the aforesaid witnesses it is
quite clear that they admitted some
significant points which are helpful to the
prosecution case. They have admitted the
burning of the victim, her hospitalization,
date, time and place of the occurrence,
364 INDIAN LAW REPORTS ALLAHABAD SERIES
hence except the name of the offenders,
they have admitted all the facts relating to
the occurrence.

17. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], as held that
evidence of hostile witness can be relied
upon to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a
whole. It is settled law that evidence of
hostile witness also can be relied upon to
the extent to which it supports the
prosecution version. Evidence of such
witness cannot be treated as washed off the
record. It remains admissible in the trial
and there is no legal bar to base the
conviction upon testimony of such witness
if corroborated by other reliable evidence.

18. In Ramesh Harijan vs. State of
U.P. [2012 (5) SCC 777], the Hon'ble Apex
Court has also held that it is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witness cannot be treated
as effaced or washed off the record
altogether.

19. In State of U.P. vs. Ramesh
Prasad Misra and another [1996 AIR
(Supreme Court) 2766], the Hon'ble Apex
Court held that evidence of a hostile
witnesses would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to
the effect that evidence of a hostile witness
cannot be discarded as a whole, and
relevant part thereof, which are admissible
in law, can be used by prosecution or the
defence.

20. Perusal of impugned judgment
shows
that
learned
trial
court
has
scrutinised the evidence on record very
carefully.

21. As far as the dying-declaration is
concerned, it was recorded by Shri Surya
Bhan Giri, Tehsildar, who was examined as
PW-14. Dying-declaration was recorded by
him after obtaining the certificate of
mental-fitness from doctor in the hospital.

22. Learned Senior Counsel for the
appellants has argued that in this matter
two dying declarations have been recorded
and same are doubtful and not corroborated
by witnesses of fact, hence, it cannot be the
sole basis of conviction. Legal position of
dying declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable.

23. PW-12, the Investigating Officer,
who is said to be recorded the statement
under Section 161 CrPC of the deceased
when she was injured but utter surprise to
the Court not a single word has been stated
by him in examination-in-chief regarding
recording of statement of injured / deceased
under Section 161 CrPC (then alive). It is
for the first time in his cross-examination,
PW-12 has stated whatsoever was stated by
the deceased in her statement under Section
161 CrPC (then alive). No doubt statement
recorded by the Investigating Officer
during course of the investigation of the
victim or injured may be treated as dying
declaration if subsequently he / she dies so
far as it relates to the cause of death but law
of evidence requires that such statement
10 All. Deepak & Anr. Vs. State of U.P.
365
must be proved in the Court in due course
of law. The said statement should find place
in verbatim in the statement of the
Investigating Officer and the relevant
portion
of
the
statement
should
be
exhibited
before
the
Court
during
deposition of the Investigating Officer as
prosecution witness. But in the matter in
hand the aforesaid procedure has not been
followed and that is why whatsoever was
stated allegedly by the deceased (then
alive) cannot be termed the statement of the
victim as dying declaration in strict legal
sense. That is why we are bound to opine
that in the present case the statement under
Section 161 CrPC of the victim recorded by
the Investigating Officer cannot be termed
as ''dying declaration' and as such there is
only one dying declaration on record which
was recorded by the PW-14.

24.

Hon'ble
Apex
Court
has
summarized the law relating to dying
declaration in Lakhan vs. State of Madhya
Pradesh [(2010) 8 Supreme Court Cases
514], in this case, Hon'ble Apex Court held
that the doctrine of dying declaration is
enshrined in the legal maxim nemo moriturus
praesumitur mentire, which means, "a man
will not meet his Maker with a lie in his
mouth". The doctrine of dying declaration is
enshrined in Section 32 of Evidence Act,
1872, as an exception to the general rule
contained in Section 60 of Evidence Act,
which provides that oral evidence in all cases
must be direct, i.e., it must be the evidence of
a witness, who says he saw it. The dying
declaration is, in fact, the statement of a
person, who cannot be called as witness and,
therefore, cannot be cross-examined. Such
statements themselves are relevant facts in
certain cases.

25. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration thereof is
required. It is also held by Hon'ble Apex
Court in the aforesaid case, that a dying
declaration recorded by a competent
Magistrate would stand on a much higher
footing than the declaration recorded by
office of lower rank, for the reason that the
competent Magistrate has no axe to grind
against the person named in the dying
declaration of the victim.

26. Deceased survived for 17 days
after the incident took place. Her dying
declaration was recorded by PW-14,
Tehsildar after obtaining the certificate of
medical fitness from the concerned doctor.
This dying declaration was proved by him
as Ext. ka-9. This witness is absolutely an
independent witness and has no grudge or
enmity to the convicts at all. PW-14 in his
deposition has stated that the victim /
injured in her statement had narrated that:

''वह कदनाोंक 16.07.2007 को सुबह 7.30
बजे स्कूल जाने के कलए अपने भाई बकहनोों को
तैयार कर रही थी। क्ोोंकक मेरी माों घर पर नहीों
थी। वह हमारे कपताजी के पास कदल्ली गयी थी।
हमारे कपताजी कदल्ली में मेहनत मजदूरी करते
थे। इसकलये उस कदन घर पर नही थी। उसने
आगे बताया कक मै अपने भाई बकहनोों को तैयार
कर स्कूल िोड़कर घर वापस आ गयी, घर
वापस आने पर मैं अपने घर पर काम कर रही
थी। तभी दीपक व कपन्टू मेरे घर में घूसे और माों
के बारे में पूिा तो उसने आगे बताया कक मैंने
उन्हें माूँ के घर में न होने की बात कही तभी
366 INDIAN LAW REPORTS ALLAHABAD SERIES
दोनोों कपन्टू व दीपक ने मेरे साथ मेरी इज्जत
लूटने के कलए बेइज्जती करने लगे। मैं बहुत
िटपटाई और आोंह?-2 मैं कचल्लाती रही। मेरे
कचल्लाना देखकर उन दोनोों ने (कपन्टू व दीपक)
ने पास में पड़ी कमट्टी के (कागज फटा) की
किबरी कजसमें कमट्टी का तेल पड़ा हुआ था
(कागज फटा) उपर कमट्टी का तेल उिेलकर
आग लगा दी। आग लगते ही जलन को मैं
िटपटाने लगी तथा वहाों से उठकर मेरे पड़ोस में
अपने ताई के घर भाग कर गई, जहाों ताई के
पररवार वालोों ने मेरी आग बुझाई।'

27. In the wake of aforesaid judgment
of Lakhan (supra), dying declaration
cannot be disbelieved, if it inspires
confidence.
On
reliability
of
dying
declaration and acting on it without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana [(2013) 3
Supreme Court Cases 280] that it is not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused. Hence, in order
to pass the test of reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.

28. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7 SCC
56], the Hon'ble Apex Court held that under
the law, dying declaration can form the sole
basis of conviction, if it is free from any
kind of doubt and it has been recorded in
the manner as provided under the law. It
may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

29. From the above case laws, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

30. In dying declaration of deceased,
it is also important to note that it was
recorded on 19.7.2007 and the deceased
died on 2.8.2007 while the incident took
place on 16.7.2007. It means that she
remained alive for 14 days after making
dying declaration. Therefore, truthfulness
10 All. Deepak & Anr. Vs. State of U.P.
367
of dying declaration can further be
evaluated from the fact that she survived
for 14 days after making it from which it
can reasonably be inferred that she was in a
fit mental condition to make the statement
at the relevant time. Moreover, in the dying
declaration,
the
deceased
did
not
unnecessarily involved the other family
members of the accused appellants. She
only attributed the role of burning to the
accused appellants, who were actual
culprit.

31. In such a situation, the hostility of
witnesses of fact cannot demolish the value
and reliability of the dying declaration of
the deceased, which has been proved by
prosecution in accordance with law and is a
truthful version of the event that occurred
and also of the circumstances leading to her
death.

32. As already noticed, none of the
witnesses or the authorities involved in
recording the dying declaration had turned
hostile. On the contrary, they have fully
supported the case of prosecution. The
dying declaration is reliable, truthful and
was voluntarily made by the deceased,
hence, this dying declaration Ext. ka-9 can
be acted upon without corroboration and
can be made the sole basis of conviction.
Hence, learned trial court has committed no
error on acting on the sole basis of dying
declaration.
Learned
trial
court
was
completely justified in placing reliance on
dying declaration and convicting the
accused-appellants on the basis thereof.

33. Although no specific defence
has been taken in their statement under
Section 313 CrPC by the convicts /
appellants but they have adduced oral
evidence and have relied upon the
statement of DW-1, DW-2 and DW-3,
who stated that the deceased herself set
her ablaze at the time of occurrence and
there was no fault of the accused persons.

34. DW-1 is the sister of the deceased. In
her examination-in-chief she has stated
that on the fateful day she was present at
her house when the accused persons came
over there and demanded Rs. 100/- for
C.D. and a quarrel took place; her sister
herself poured kerosene over her and set
her ablaze herself but in the crossexamination she has admitted that on the
day of occurrence, she had gone to her
school and does not remember whether
the deceased herself set her ablaze or any
one else set her ablaze.

35. DW-2 in his examination-inchief has also stated that there was some
letter of the deceased which was in the
possession of Bala. Feeling ashamed of
this Laxmi herself had set her ablaze by
pouring kerosene over her. He was
present at the time of occurrence and the
accused persons did not set her ablaze.
He has also stated that occurrence took
place at 11.00-11.30 a.m.. However, in
his cross-examination he has admitted
that he usually goes to his field in the
morning at 7.00 a.m.. He has not clarified
this fact in his deposition that as to why
he was present on the spot at about 11.00
- 11.30 a.m. when at 7.00 a.m. only he
used to go to his field.

36. Hence, DW-1 and DW-2 both are
not reliable witnesses and same is the
position of the deposition of DW-3 who has
admitted that he has reached the spot after
the deceased was set ablaze. Hence, he is
not the eye witness of the occurrence.

37. Learned trial court has discussed
the evidence of DW-1, DW-2 and DW-3
368 INDIAN LAW REPORTS ALLAHABAD SERIES
and has opined that the defence gets no
help from the depositions of the aforesaid
witnesses and we concur with the same.

38. So far as the submission that
offence under Section 3(2)(v) SC/ST Act is
not made out against the appellants is
concerned, in this matter the F.I.R., in the
case at hand, was lodged by the brother of
the deceased. Whether it can be said that
the incident was committed on the ground
that the deceased belonged to a particular
community falling in the term 'Scheduled
Castes' or 'Scheduled Tribes' so as to attract
the provision of Section 3 (2) (v) of SC/ST
Act, the F.I.R. is silent about this aspect.
Documentary evidence showing as to what
caste to the deceased belonged, has not
been brought on record. For attracting the
provisions of Section 3(2) (v) of SC/ST
Act, there should be corroboration by way
of documentary evidence to prove that the
injured / deceased, to whom the act is
committed, belongs to 'Scheduled Castes'
or 'Scheduled Tribes'. Just because a person
belongs to and says so, will it be a piece of
evidence? It is nobody's case that the
appellants committed this crime on the
ground that the deceased belonged to a
particular community. Even if we believe
that there is no documentary evidence and
that the deceased belongs to the community
which is alleged then also can it be said that
the offence has been committed as she
belongs to a particular community? This is
moot question which arises before us.

39. In Ram Das vs. State of U.P.,
AIR 2007 SC 155 wherein there was rape
on woman belonging to Scheduled Caste, it
was held that these could be no ground to
convict the accused under Section 3 (2) (v)
when there was no evidence to support the
charge under Section 3 (2) (v) of SC/ST
Act. Mere fact that victim happened to be a
girl belonging to Scheduled Caste did not
attract provisions of SC/ST Act.

40. In Dharmendra vs. State of U.P.,
2011 Cri LJ 204 (All), the Court has held
that there was no evidence on record to
show that incident was caused by the
accused on the ground that victim belonged
to Scheduled Caste. Fact of victim,
belonging to Scheduled Caste by itself was
not sufficient ground to bring case within
the purview of Section 3 (2) (v) of Act.
Conviction under Section 3 (2) (v) was
improper.

41. In State of Gujarat v. Munna,
2016 Cri LJ 4097 (Guj), the Court held as
under:

"In the instant case, so far as the
charge against the accused for the offence
punishable under Section 3 (2) (v) of the
Atrocity Act, 1989 was concerned, from the
deposition of the witnesses it had not come
out that the accused committed the offence
against the deceased on the ground that
deceased was a member of Scheduled
Caste or Scheduled Tribe. In absence of
such evidence it could not be said that the
original accused had committed the offence
punishable under Section 3 (2) (v) of the
Atrocity
Act,
1989.
Under
the
circumstances on the basis of the evidence
of record the accused could not be held
guilty for the aforesaid offence."

42. Decision of the Division Bench of
this Court in case of Criminal Appeal No.
204 of 2021 (Vishnu vs. State of U.P.)
decided on 28.1.2021 penned by one of us
(Dr. K.J. Thaker, J.) held as under :

"38. Section 3(2)(v) of Scheduled
Casts and Scheduled Tribes ( Prevention of
Atrocities) Act, 1989 is concerned, the FIR
10 All. Deepak & Anr. Vs. State of U.P.
369
and the evidence though suggests that any
one or any act was done by the accused on
the basis that the prosecutrix was a
member
of
Scheduled
Castes
and
Scheduled Tribes then the accused can be
convicted for commission of offence under
the said provision. The learned Trial Judge
has materially erred as he has not discuss
what is the evidence that the act was
committed because of the caste of the
prosecutrix.
The
sister-in-law
of
the
prosecutrix had filed such cases, her
husband and father-in-law had also filed
complaints. We are unable to accept the
submission of learned AGA that the
accused knowing fully well that the
prosecutrix belongd to lower strata of life
and therefore had caused her such mental
agony which would attract the provision of
Section 3(2)(v) of the Atrocities Act. The
reasoning of the learned Judge are against
the record and are perverse as the learned
Judge without any evidence on record on
his own has felt that the heinous crime was
committed
because
the
accused
had
captured the will of the prosecutrix and
because the police officer had investigated
the matter as a attrocities case which
would not be undertaken within the
purview of Section 3(2)(v) of Atrocities Act
and has recorded conviction under Section
3(2)(v) of Act which cannot be sustained.
We are supported in our view by the
judgment of Gujarat High Court in
Criminal Appeal No.74 of 2006 in the case
of Pudav Bhai Anjana Patel Versus State
of Gujarat decided on 8.9.2015 by Justice
M.R. Shah and Justice Kaushal Jayendra
Thaker (as he then was).

39. Learned Judge comes to the
conclusion that as the prosecutrix belonged
to community falling in the scheduled caste
and the appellant falling in upper caste the
provision of SC/ST Act are attracted in the
present case.

40. While perusing the entire evidence
beginning from FIR to the statements of
PWs-1, 2 and 3 we do not find that
commission of offence was there because of
the fact that the prosecutrix belonged to a
certain community.

41. The learned Judge further has not
put any question in the statement recorded
under Section 313 of the accused relating
to rape or statement which is against him.

42. In view of the facts and evidence
on record, we are convinced that the
accused has been wrongly convicted,
hence, the judgment and order impugned is
reversed and the accused is acquitted. The
accused appellant, if not warranted in any
other case, be set free forthwith."

43. Initially the case was registered
under Sections 452, 326 IPC. Section
3(2)(v) SC/ST Act was added during
investigation but on what basis it was
added has no where been clarified by PW12 and PW-10 in their testimonies, who are
said to be the I and II Investigating Officers
of the case, respectively. It is pertinent to
mention here that neither in the F.I.R. nor
in the depositions of the witnesses of fact it
has been mentioned any where that the
deceased belonged to SC/ST community
and the offence was committed due to her
caste.

44. In the case at hand, no
independent witness has been examined
who would have deposed that the accused
committed the offence on the ground that
deceased belonged to a community covered
under SC/ST Act. This omission proves
fatal to the prosecution in such a vital
matter where punishment is for life
imprisonment.
There
is
no
deeming
provision under SC/ST Act. In view of the
above, we cannot concur with the learned
Sessions Judge as the evidence which has
370 INDIAN LAW REPORTS ALLAHABAD SERIES
been laid before the learned judge has been
misread by learned Sessions Judge in this
context and he has misconstrued the
provisions of Section 3 (2) (v) of SC/ST
Act. Hence, conviction and sentence under
Section 3 (2) (v) SC/ST Act of the accusedappellants is, set aside.

45. Now we come to the point of
argument raised by learned Senior Counsel
for the appellants that deceased died due to
septicaemia, hence this case falls within the
ambit of Section 304 IPC and not under
Section 302 IPC. In this regard, learned
counsel has submitted that deceased died
after 17 days of incident due to the
poisonous infection developed in her burn
injuries, which could be avoided by good
treatment. There was no intention of the
appellants to cause the death of the
deceased.

46. It is admitted fact that the
deceased died after 17 days of burning and
post mortem report goes to show that she
died due to septicaemic shock by reason of
ante mortem flame burning. Though doctor,
who has performed the autopsy of the
deceased, could not be examined yet the
Technical Assistant posted in G.T.B.
Hospital, Delhi, has proved the writing and
signature of Dr R.P. Singh before the Court
and he has been examined as PW-13. It has
been specifically mentioned in the post
mortem report that the cause of death was
septicaemic shock due to ante mortem
flame burning. Hence, the death of the
deceased was septicaemial death.

47. The finding of fact regarding the
presence of witnesses at the place of
occurrence cannot be faulted with. Death
of deceased was a homicidal death. The
fact that it was a homicidal death takes
this Court to most vexed question
whether it would fall within the fourcorners of murder or culpable homicide
not amounting to murder. Therefore, we
are considering the question whether it
would be a murder or culpable homicide
not amounting to murder and punishable
under Section 304 IPC.

48. In State of Uttar Pradesh vs.
Mohd. Iqram and another, [(2011) 8
SCC 80], the Apex Court has made the
following observations in paragraph 26,
therein:

"26. Once the prosecution has
brought home the evidence of the
presence of the accused at the scene of
the crime, then the onus stood shifted on
the
defence
to
have
brought-forth
suggestions as to what could have
brought them to the spot in the dead of
night. The accused were apprehended
and, therefore, they were under an
obligation
to
rebut
this
burden
discharged by the prosecution and having
failed to do so, the trial-court was
justified in recording its findings on this
issue. The High Court committed an error
by concluding that the prosecution had
failed to discharge its burden. Thus, the
judgment proceeds on a surmise that
renders it unsustainable."

49. In Bengai Mandal alias Begai
Mandal vs. State of Bihar [(2010) 2 SCC
91], incident occurred on 14.7.1996, while
the deceased died on 10.8.1996 due to
septicaemia caused by burn injuries. The
accused was convicted and sentenced for
life imprisonment under Section 302 IPC,
which was confirmed in appeal by the High
Court, but Hon'ble The Apex Court
converted the case under Section 304 PartII IPC on the ground that the death ensued
after twenty-six days of the incident as a
10 All. Deepak & Anr. Vs. State of U.P.
371
result of septicaemia and not as a
consequence
of
burn
injuries
and,
accordingly, sentenced for seven years'
rigorous imprisonment.

50. In Maniben vs. State of Gujarat
[(2009) 8 SCC 796], the incident took place on
29.11.1984. The deceased died on 7.12.1984.
Cause of death was the burn injuries. The
deceased was admitted in the hospital with
about 60 per cent burn injuries and during the
course of treatment developed septicaemia,
which was the main cause of death of the
deceased. Trial-court convicted the accused
under Section 304 Part-II IPC and sentenced for
five years' imprisonment, but in appeal, High
Court convicted the appellants under Section
302 IPC. Hon'ble The Apex Court has held that
during the aforesaid period of eight days, the
injuries aggravated and worsened to the extent
that it led to ripening of the injuries and the
deceased died due to poisonous effect of the
injuries.