# Deepak Kalra (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 816
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Criminal Appeal No. 4437 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kalra-in-jail-v-state-of-u-p-46816
- **Pages:** 7

## Headnote

matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Section 302-challenge
to-conviction- the appellant had inimical
relation with his wife- He had started to
consume liquor-He used to regularly beat
her- Before two days only, his father had
brought the deceased to the matrimonial
home-The capacity of the deceased to
make a dying declaration with 90% burns
is of her own-There is no tutoring by any
interested person-The evidence on record
gets corroboration of PW-2 who is the son
2 All. Deepak Kalra Vs. State of U.P.
817
of appellant and deceased, who has
testified that it was his father who had
poured kerosene on his mother-due to
being addicted to liquor and being in
depression due to loss of business, there
was a quarrel between him and his wifeHe and his wife had a heated discussion-
Statement recorded under Section 313
Cr.P.C. shows that he had felt really
sorry about the incident- He has children
( second daughter) whom he will have to
maintain and he has been in jail for a
period
of
over
10
years-accused
sentenced reduced to ten years from life
imprisonment-he is set free.(Para 1
to21)

B. Dying declaration can be acted upon as
per the contours laid down by the
authoritative pronouncements, we would
like to go by the 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 correctness.
(Para 10)

The Appeal is allowed.(E-5)

List of Cases cited:-

## Text

816 INDIAN LAW REPORTS ALLAHABAD SERIES
of acquittal but could have punished under
Section 304 part I or II of I.P.C. which was
attracted in the facts of this case.

25. The concept of honour killing is
invoked by learned Judge in the facts of the
case and it would be not possible to concur
as us a case of no evidence. Despite that the
accused is in jail for more than 10 years
without remission. The factual scenario
even if it is believed could not have
permitted the Judge to convict the accused
for 302 IPC where no evidence was there
on record. Most of the family members
have turn hostile but the learned Judge has
convict the accused on the basis that he had
done with her death which was opinion as
based on ideology of the learned Judge. It
is not a case on record that the appellant did
not want the deceased to fall love in a
lower caste. Even if we read operative
portion it is very clear that there a quarrel
between brother and the sister. According
to the learned trial Judge the brother acted
in gruesome manner and that is why
punished him with life imprisonment with a
fine of Rs. 20,000/-. The learned Judge has
heavenly relied upon Bhagwan Das Vs.
State of New Delhi 2011 Crl.LJ 2903 just
because the accused did not examine any
witness. The learned Judge has relied
reliance and has convicted on the statement
under section 161 Cr.P.C. of the witnesses.
With this preclude we decide the appeal.
Similar is case before us and reliance can
be placed on the case of Sharafat (Supra).

26. The accused is in jail for more
than 10 years. He is sentenced to undergo
nine years R.I. with fine of Rs. 500/- and,
in case of default in payment of fine,
further
to
undergo
three
months
imprisonment. He is ordered to be set free
if not required in any other case.

27 . Accordingly, the appeal is
allowed.

28. Record and proceedings be sent
back to the trial court.

29. This court is thankful to Shri
Santosh Kumar Tripathi, learned counsel
for the appellant and learned AGA Sri N.K.
Srivastava for ably assisting this Court in
getting this old matter disposed off.
----------
(2021)02ILR A816
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4437 of 2014

Deepak Kalra ....Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Santosh Tiwari, Sri Dhiraj Kumar
Pandey, Sri Sunil Kumar Mishra

Counsel for the Opposite Party:
A.G.A., Sri Rahul Kumar Tripathi

A.
Criminal
matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Section 302-challenge
to-conviction- the appellant had inimical
relation with his wife- He had started to
consume liquor-He used to regularly beat
her- Before two days only, his father had
brought the deceased to the matrimonial
home-The capacity of the deceased to
make a dying declaration with 90% burns
is of her own-There is no tutoring by any
interested person-The evidence on record
gets corroboration of PW-2 who is the son
2 All. Deepak Kalra Vs. State of U.P.
817
of appellant and deceased, who has
testified that it was his father who had
poured kerosene on his mother-due to
being addicted to liquor and being in
depression due to loss of business, there
was a quarrel between him and his wifeHe and his wife had a heated discussion-
Statement recorded under Section 313
Cr.P.C. shows that he had felt really
sorry about the incident- He has children
( second daughter) whom he will have to
maintain and he has been in jail for a
period
of
over
10
years-accused
sentenced reduced to ten years from life
imprisonment-he is set free.(Para 1
to21)

B. Dying declaration can be acted upon as
per the contours laid down by the
authoritative pronouncements, we would
like to go by the 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 correctness.
(Para 10)

The Appeal is allowed.(E-5)

List of Cases cited:-

1. Khushal Rao Vs St. of Bom. (1958) AIR S.C.
22
2. St. of M.P. Vs Ramesh Kumar (2018) LawSuit
(MP)358

3. Pramod Kumar Vs St. of U.P. CRLA No.318 of
2015

4. Tukaram & ors. Vs St. of Mah. (2011) 4 SCC
250

5. B.N. Kavatakar & anr. Vs St. of Karnataka
(1994) SUPP 1 SCC 304

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. )

1. By way of this appeal, the appellant
has challenged the Judgment and order
dated 26.9.2014 passed by court of Ist
Additional Session Judge, Court No.1,
Saharanpur in Sessions Trial No.81 of
2009, State Vs. Deepak Kalra arising out of
Case Crime No.615 of 2008 under Sections
302 I.P.C., Police Station Sadar Bazar,
District Saharanpur whereby the accusedappellant was convicted under Section 302
of IPC and sentenced to imprisonment for
life with fine of Rs.5,000/- and in case of
default of payment of fine, to undergo
further rigorous imprisonment for two
years.

2. The factual data which is culled out
from the record is that the accused on
20.9.2008, deceased Pooja was married to
Deepak Kumar namely accused-appellant.
Deepak had lost lot of money in the
business, and, therefore had taken to liquor
and used to demand money from his in-law.
The accused tired to set his wife ablaze on
the date of incident. The deceased had
come back to the matrimonial home with
her father-in-law who had assured his
parents that she would be kept well, but she
was set ablaze within two days of
returnings by the accused is her dying
declaration. They had altercation and
quarrel on the said date also is what is
818 INDIAN LAW REPORTS ALLAHABAD SERIES
stated in her dying declarations, she
conveyed in her dying declaration that her
mother-in-law, brother-in-law and father-inlaw were not responsible for the incident.
The brother-in-law had brought her to the
hospital. The investigation was conducted
and the accused was charge sheeted.

3. The accused was committed to the
Court of sessions as it was sessions triable
case. Accused being brought before session
judge, the learned sessions judge framed
charges on 19.3.2009 under Section 302 of
IPC.

4 . The prosecution so as to bring
home
the
charges
examined
eleven
witnesses, who are as under:-

1.
Deposition
of
Sushma Bajaj
P.W.1
2.
Deposition
of
Deepansh
P.W.2
3.
Deposition
of
Ashok Kumar
P.W.3
4.
Deposition
of
Dr.
Naresh
Chandra
P.W.4
5.
Deposition
of
Narendra
Pal
Singh
P.W.5
6.
Deposition
of
Bulaki
Ram
Verma
P.W.6
7.
Deposition
of
J.K. Tomar
P.W.7
8.
Deposition
of
Desh
Deepak
Singh
P.W.8
9.
Deposition
of
Balbir Singh
P.W.9
10.
Deposition
of
I.B.P. Mishra
D.W.1
11.
Deposition
of
Sanjay Kalra
D.W.2

5. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:

1.
F.I.R.
Ext. Ka-2
2.
Written report
Ext. Ka-1
3.
Dying declaration Ext.Ka-8/22/9
4.
Recovery
of
memo of match
box, bottle & cap
of cold drink

Ext. Ka-20
5.
Recovery memo
of half shirt
Ext. Ka-21
6.
Injury report
Ext. Ka-6
7.
Bed head ticket
Ext. Ka-7
8.
P.M. Report
Ext. Ka-10
9.
Panchayatnama
Ext. Ka-11
10. Charge-sheet
(Mool)
Ext. Ka-16
11. Site
Plan
with
Index
Site
Plan
with
Index

6. The minor child Deepansh-PW-2
who is son of accused as well as son of the
deceased has deposed that since six
months, they were staying with their aunt.
The deceased was taken to the matrimonial
home , by the grand father according to the
child. The minor child has accepted in his
testimony that he had conveyed to the
maternal aunt that his father and grand
father had set his mother ablaze and father
2 All. Deepak Kalra Vs. State of U.P.
819
had taken her to the hospital. He has
withstood the cross examination also.

7. Learned counsel appearing on
behalf of accused-appellant has relied on
the decisions in Khushal Rao Vs. State of
Bombay, AIR 1958 S.C. 22, State of
Madhya Pradesh Vs. Ramesh Kumar, 2018
LawSuit(MP)358 and a Division Bench
Judgment of this Court in Criminal Appeal
No.318 of 2015 (Pramod Kumar Vs. State
of U.P.) Decided on 28.2.2019.

8. Learned A.G.A. appearing on
behalf of State has contended that this is a
case of dowry death. The accused has
caused the death of his wife with brutality.
It is further submitted that the dying
declaration has been rightly believed by the
learned Trial Judge. It is further submitted
that just because the witnesses have been
family members, they have not supported
the prosecution in totality and that the
dying delcaration goes to show that there is
corroboration. The FIR goes to show that
the deceased Pooja was staying with her
brother. The evidence of the minor has also
been properly scrutinized by the learned
Judge. Though later on he has not
supported the prosecution but in his chief,
he has stated that he had conveyed to his
aunt-Sushma Bajaj that was his father, who
had set her ablaze but father had taken her
to the hospital. He has further relied on
evidence of the doctor and the police
authorities so as to contend that the
judgment does not require any interference
and has contended that the post mortem
report and the examination by doctor shows
that the body was having burn injuries
except the feet.

9. It is further submitted by learned
AGA that the accused should not be dealt
with lightly. It is further submitted that
incident occurred on 21.9.2008 at 10:30
p.m. The deceased was set ablaze and has
submitted that the learned Judge has
minutely discussed oral testimony, decision
and has convicted the accused.

10. Before we decide to evaluate
whether the dying declaration can be acted
upon as per the contours laid down by the
authoratative pronouncements, we would
like to go by the 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 cross-examination
are dispensed with. Since the accused has
no power of cross-examination, 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 correctness. 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 to the medical opinion.
820 INDIAN LAW REPORTS ALLAHABAD SERIES
But where the eyewitnesses 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 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.

11. Before we decide to threadbare go
through the evidence, we make it clear that
we have appreciated the entire evidence on
record. We have been taken through the
entire evidence most of witnesses who have
turned hostile but to certain extent, they
have corroborated the dying declaration.

12. The appellant can be said to have
caused the homicidal death. The reason
being he was the one who has been named
in the dying declaration by the deceased
and his son has also conveyed to his
maternal aunt who has narrated the fact in
the FIR. The dying declaration can be said
to be trustworthy and it has to be held that
dying declaration though is a weak piece of
evidence stands on the same footing as any
other piece of evidence. The surrounding
circumstances go to show that the appellant
had inimical relation with his wife. He had
started to consume liquor. He used to
regularly beat her. Before two days only,
his father had brought the deceased to the
matrimonial home. The capacity of the
deceased to make a dying declaration with
90% burns is of her own. There is no
tutoring by any interested person. The
evidence on record gets corobotation of
PW-2 who is the son of appellant and
deceased, who has testified that it was his
father who had pourd kerosene on his
mother.

13. Learned counsel for the appellant
submitted that the accused had not been
instrumental in cuasing the death of the
deceased. The dying declaration according
to the learned counsel, is not fulfilling the
contours set by the Supreme Court and the
High Court. It is submitted that except PW1, most of the witnesses have not supported
the case of the prosecution. We hold that
the accused was the one who had set his
wife ablaze. We hold that the contours for
accepting or rejecting the dying declaration
are met with in the facts of our case and we
2 All. Deepak Kalra Vs. State of U.P.
821
are convinced that the dying declaration
has
been
properly
recorded
and
is
admissible in evidence as it is corroborated
by the evidence of the child witness also.

14. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C. of
the Indian Penal Code should be upheld or
the conviction deserves to be converted
under Section 304 Part-I or Part-II of the
Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which read as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

15. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
Subject
to
certain
exceptions
culpable
culpable
homicide
if
the
act
by
which
the
death
is
caused
is
done-
homicide is murder is the
act by which the death is
caused is done.
INTENTION
(a) with the
intention
of
causing
death; or
(1) with the intention of
causing death; or
(b) with the
intention
of
causing such
bodily injury
as is likely to
cause death;
or
(2) with the intention of
causing such bodily injury
as the offender knows to be
likely to
cause the death of the
person to whom the harm
is caused;

KNOWLED
GE
KNOWLEDGE
(c) with the
knowledge
that the act is
likely
to
cause death.
(4) with the knowledge that
the act is so immediately
dangerous

that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse for
incurring
the
risk
of
causing
death
or
such
injury as is mentioned
above.

16. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
822 INDIAN LAW REPORTS ALLAHABAD SERIES
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that the offence would
be one punishable under Section 304 part-I
of the IPC.

17. If we summarize the evidence of
all the witnesses, they have withstood the
cross examination and the factum of
trustworthy dying declaration corroborated
by the testimony of PW-2 son himself
against father will also not permit us to
brush aside the evidence.

18. The submission of learned counsel
for the appellant relying on the decisions in
Khushal Rao ( supra) would, on the
contrary, go against the appellant and the
decision in State of Madhya Pradesh (
supra) is also against appellant.

19. In our case, the decision of State
of Madhya Pradesh ( supra) will not aid
the appellant, reason being here this is a
case of conviction wherein State of
Madhya Pradesh it was appeal against
acquital. The judgment of this High Court
in Pramod Kumar Vs. State of U.P. also
will not help the appellant. The conviction
has been based on circumstances which are
attendant to the dying declaration. The said
decision in Pramod Kumar Vs. State of U.P.
also laid down that the dying declaration
was truthful. Similar is the case here.
Reliance can be placed on the recent
decision of this Bench in the case of
Criminal Appeal No.- 4702 of 2012 (Ashiq
Ali and Another Versus State of U.P.)
decided on 10.2.2021 and this vexatious
question as to whether the offence with
such
gravity
would
fall
within
the
provisions of Section 300 or 304 I.P.Code.
The decision in Pramod Kumar (supra) and
the decision in the case of Ashiq Ali and
another (supra) will permit us to hold that
accused be punished for Section 304 Part -I
of IPC as it appers that due to being
addicted to liquor and being in depression
due to loss of business, there was a quarrel
between him and his wife. He and his wife
had a heated discussion. The judgment of
this Court is pressed into service by the
learned counsel which is applicable to the
facts of this case. Statement recorded under
Section 313 Cr.P.C. shows that he had felt
really sorry about the incident. He has
children ( second daughter) whom he will
have to maintain and he has been in jail for
a period of over 10 years.

20.

We
substitute
the
life
imprisonment
to
10
years
rigorous
imprisonment.
Fine
is
reduced
to
Rs.1,000/- and the sentence is reduced to
three months.

21. Appeal is partly allowed. If the
accused is not wanted in any other case, he
be set free.

22. Record and proceedings be sent
back to the Court below forthwith.
----------
(2021)02ILR A822
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4598 of 2014

Talewar ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants: