# Girish Singh v. State of U.P

- **Citation:** (2022) 10 ILRA 222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-02
- **Case number:** Criminal Appeal No. 3098 of 1984
- **Bench:** Arvind Kumar Mishra-I, Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-singh-v-state-of-u-p-47708
- **Pages:** 8

## Headnote

A. Criminal Law-Criminal Procedure Code,
1972-Section 374(2) - Indian Penal Code,
1860-Section
302-Challenge
toConviction-Murder-Accused stabbed the
deceased
with
Ballam-testimony
of
witnesses PW-1 and PW-2 of fact is
contradictory and full of infirmities-PW-3
did not support the prosecution versionboth the witnesses ie. PW-1 and PW-2
were inimical towards the appellant and
the fact of grudge and animosity is
proved-Trial court could not appraise
substantive facts and testimony of this
case
in
right
perspective-Prosecution
failed to prove its case beyond reasonable
doubt against the appellant-Hence, the
accused is entitled to the benefit of
doubt.(Para 1 to 34)

B. It is settled principle of criminal
jurisprudence
that
in
cases
where
evidence
and
circumstances
when
weighed
substantially
and
taken
cumulatively
raised
strong
suspicion
about the manner and style of the
occurrence that it was in fact so caused by
the accused-appellant, then benefit of
doubt would be the only reasonable
outcome of judicial scrutiny and this
benefit of doubt always works in favour of
the appellants.(Para 32)

The appeal is allowed. (E-6)

## Text

222 INDIAN LAW REPORTS ALLAHABAD SERIES
do more harm to justice dispensations and
would undermine the public confidence in the
efficacy of law. It is the duty of every court to
award proper sentence having regard to
nature of offence and manner of its
commission. The supreme court further said
that courts must not only keep in view the
right of victim of crime but also society at
large. While considering imposition of
appropriate punishment, the impact of crime
on the society as a whole and rule of law
needs to be balanced. The judicial trend in the
country has been towards striking a balance
between
reform
and
punishment. The
protection of society and stamping out
criminal proclivity must be the object of law
which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain order
and peace, should effectively meet challenges
confronting the society, as society could not
long endure and develop under serious threats
of crime and disharmony. It is therefore,
necessary to avoid undue leniency in
imposition of sentence. Thus, the criminal
justice jurisprudence adopted in the country is
not retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

28. Keeping in view the facts and
circumstances of the case and also keeping in
view criminal jurisprudence in our country
which is reformative and corrective and not
retributive, this Court considers that no
accused person is incapable of being reformed
and therefore, all measures should be applied
to give them an opportunity of reformation in
order to bring them in the social stream.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and for
that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded by
learned trial court for life term is very harsh
keeping in view the entirety of facts and
circumstances of the case and gravity of
offence. Hon'ble Apex Court, as discussed
above, has held that undue harshness should
be avoided taking into account the reformative
approach underlying in criminal justice
system.

30.

Therefore,
accused-appellants,
Babloo Kori alias Santosh Kumar and Manish
Kori are convicted for the offence punishable
under Section 304 (Part I) of IPC and
sentenced to 10 years rigorous imprisonment.
The fine is reduced to Rs.10,000/-. The fine if
they have yet not deposited, will deposit the
same within four weeks from the date of
release from jail. The jail authority shall see
that the accused-appellants are lodged in the
jail to re-incarcerate for the default period if
fine is not paid after they are released. The
accused be released on completion of their
respective sentences

31. In view of the above, both the
criminal appeals are partly allowed. Record
and proceedings be sent back to the Court
below forthwith.
----------
(2022) 10 ILRA 222
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 3098 of 1984

Girish Singh ...Appellant
Versus
State of U.P. ...Opposite Party
10 All. Girish Singh Vs. State of U.P.
223
Counsel for the Appellant:
Sri N.B. Singh, Sri Jai Prakash Singh, Sri
Rajrshi Gupta, Sri Rahul Yadav

Counsel for the Respondent:
D.G.A.

A. Criminal Law-Criminal Procedure Code,
1972-Section 374(2) - Indian Penal Code,
1860-Section
302-Challenge
toConviction-Murder-Accused stabbed the
deceased
with
Ballam-testimony
of
witnesses PW-1 and PW-2 of fact is
contradictory and full of infirmities-PW-3
did not support the prosecution versionboth the witnesses ie. PW-1 and PW-2
were inimical towards the appellant and
the fact of grudge and animosity is
proved-Trial court could not appraise
substantive facts and testimony of this
case
in
right
perspective-Prosecution
failed to prove its case beyond reasonable
doubt against the appellant-Hence, the
accused is entitled to the benefit of
doubt.(Para 1 to 34)

B. It is settled principle of criminal
jurisprudence
that
in
cases
where
evidence
and
circumstances
when
weighed
substantially
and
taken
cumulatively
raised
strong
suspicion
about the manner and style of the
occurrence that it was in fact so caused by
the accused-appellant, then benefit of
doubt would be the only reasonable
outcome of judicial scrutiny and this
benefit of doubt always works in favour of
the appellants.(Para 32)

The appeal is allowed. (E-6)
(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.
&
Hon'ble Mayank Kumar Jain, J.)

1. By way of instant criminal appeal,
challenge has been made to the validity and
sustainability of the judgment and order of
conviction dated 31.10.1984 passed by IV
Additional Sessions Judge, Ghazipur, in
Session Trial No.37 of 1984, State Vs.
Girish Singh, arising out of Case Crime
No.76 of 1983, under Section 302 I.P.C.,
Police Station- Khanpur, District- Ghazipur
whereby the appellant Girish Singh has
been sentenced to life imprisonment.

2. Heard Mr. Rajrshi Gupta, Mr.
Rahul Yadav and Jai Prakash Singh,
learned counsel for the appellant, Mr. Om
Prakash, Mr. Alok Kumar Tripathi, Mr.
Sunil Kumar Tripathi and Mr. M.P. Singh
Gaur, A.G.As. for the State and perused the
record.

3. The prosecution story as unfolded
through the record reflects that one Rani
Devi wife of late Jainath Singh, resident of
Village Nayakdih, Police Station Khanpur,
District Ghazipur, lodged the written report
at Police Station Khanpur on 19.06.1983 at
7:45 a.m. regarding some incident that took
place yesterday night at 11:45 p.m. in
village Nayakdih which was 9 kms. away
from the police station Khanpur, with the
description that the informant is the
resident of within Police Station Khanpur.
Her nephew Ramagya Singh son of
Dashrath Singh was not having any issue
and had given his landed property to the
son of his uncle, Ujagir Singh, Shriraj
Singh, Giriraj Singh by way of the Will. It
so happened that for the last one year, there
was some dispute with Shriraj Singh,
therefore, the deceased Ramagya Singh
began to reside with the son of his uncle,
Jairaj Singh. Some property was sold out
by the deceased and the sale consideration
was given to Jairaj Singh due to which the
accused were inimical with the deceased.

4. It so happened that on 18.06.1983
in the night, the deceased Ramagya Singh
was sleeping on the cot in front of the door
224 INDIAN LAW REPORTS ALLAHABAD SERIES
of Bhagwati. It was around 11:30 p.m.
when Girish Singh came to the house of the
informant and asked whereabouts of Jairaj
Singh whereupon she told that Jairaj singh
has gone to attend marriage ceremony.
Upon this, the accused said that he will kill
Ramagya Singh today and he will see as to
how he sold out his land. He went away
from there. As soon as Girish Singh left her
home, she raised alarm whereupon Rama
Shanker Singh from her neighbourhood got
up and intercepted the accused by saying
that have you become mad, whereupon
Girish Singh went away from the scene and
saying that he proceeded on to take tobacco
(Surti) and proceeded towards tubewell
where the informant along with Rama
Shanker Singh arrived. Thereafter, they
rested in front of their houses.

5. It was around 11:45 p.m., the
appellant
possessing
lance
(Ballam)
proceeded towards Rama Shanker Singh
where he was sleeping and threatened him
that in case he got up, he will be killed.
Thereafter, the appellant proceeded towards
house of Ramagya whereupon Rama
Shanker Singh raised alarm then Kripa
Shanker Singh and others rushed to the spot
lightening torches in their hands. At that
point of time, the appellant assaulted
Ramagya Singh on his stomach with lance
(Ballam). Ramagya Singh shouted that he
will be killed. Thereafter, Kripa Shanker
Singh, Rama Shanker Singh and the
informant reached near Ramagya Singh.
They saw lance (Ballam) being extracted
by the appellant Girish Singh from the
stomach (of deceased) in the torch light.
Upon seeing the informant and others, the
appellant fled away from the scene.
Thereafter, lance (Ballam) was taken out of
stomach of Ramagya Singh. No one chased
the appellant out of fear. The informant
could not come to lodge the first
information report in the night. The report
was scribed / written in the following
morning and the matter was reported as
such. The written report is Ext. Ka-1.

6.

Contents
of
the
aforesaid
information were taken down in the Check
FIR on 19.06.1983 at 7:45 a.m. at aforesaid
police station at Case Crime No.76 of 1983
under Section 302 I.P.C. Check FIR is Ext.
Ka-6. On the basis of entries so made in the
check F.I.R., a case was registered in the
relevant G.D. at serial no.10 on 19.06.1983
at 07:45 a.m. at aforesaid case crime
number at Police Station Khanpur, under
aforesaid section of I.P.C. against appellant,
which is Exhibit Ka-7.

7. The investigation ensued and was
taken over by S.P. Shukla, PW-5. He
arrived on the spot. In his investigation, he
has proved several documents apart from
Check FIR, registration of the case in the
general diary, and statement of the
informant as recorded by him under
Section 161 Cr.P.C. Thereafter, inquest
report of the deceased Ramagya Singh was
prepared by the Investigating Officer.
Inquest
report
reveals
that
process
commenced around 9:55 a.m. and ended at
11:55 p.m. on 19.06.1983. Inquest report is
Ext. Ka-9. In the opinion of inquest
witnesses, it was thought proper to send the
dead body for post mortem examination so
that cause of death could be ascertained
properly.

8. Thereafter relevant papers were
prepared for sending the dead body for post
mortem examination which paper are;
Police Form 13 Challan of dead body Ext.
Ka-10, Photonash Ext. Ka-11, letter to R.I.
Ext. Ka-12, letters to C.M.O. Ghazipur Ext.
Ka-13 and Ext. Ka-14, Specimen Seal Ext.
Ka-15. Post mortem examination on the
10 All. Girish Singh Vs. State of U.P.
225
dead body of the deceased Ramagya was
conducted by Dr. P.C. Srivastava, at
District Hospital Ghazipur on 20.06.1983 at
2:00 p.m. wherein following ante mortem
injuries were noted:

9. Punctured wound, margin sharp - mid
line - on the abdomen 10 cm above umbilicus
at 12 O' Clock position, oblique downward
direction. 3 cm x 2 cm x abdominal cavity
deep loops of bowel seen coming out of
wound with faecal matter.

10. Cause of death was opined to be
shock and haemorrhage as result of ante
mortem injury no.1. Duration of death was
said to be one and half day. This post mortem
examination report is Ext. Ka-5.

11. During course of the investigation,
Kathari, a sort of mattress used by the villagers
was taken into possession, memo whereof was
prepared by the investigation officer. The
weapon of assault lance (Ballam) has been
proved as material Ext. 1. The investigation
officer also prepared site plan of the place of
occurrence which is Ext.16. The Investigating
Officer after completing other formalities filed
charge-sheet Ext. Ka-17 against the appellant.

12. Thereafter, the case was committed
to the court of Sessions from where it was
made over for hearing and disposal to the
aforesaid court of IV-Additional Sessions
Judge, Ghazipur, who after hearing the
prosecution and accused-appellant on the point
of charge was satisfied with prima facie case
and framed charge against the accusedappellant under Section 302 IPC. Charge was
readover and explained in Hindi to the
accused-appellant who abjured charge and
opted for trial.

13. In turn, the prosecution was asked
to adduce its testimony whereupon the
prosecution produced in all 5 witnesses. A
brief sketch of witnesses is as under:-

14. Kripa Shanker Singh PW-1 and
Rama Shanker Singh PW-2 both claim
themselves to be witnesses of the incident
and have given eye-account testimony of
the occurrence. The informant Rama Devi
PW-3 has turned hostile. Insofar as Dr. P.C.
Srivastava PW-4 is concerned, he has
conducted post mortem examination on the
body of the deceased Ramagya Singh and
noted ante mortem injury during course of
the post mortem examination. S.P. Shukla,
PW-5 is the investigation officer in this
case.

15. No further evidence was adduced
by the prosecution. Therefore, evidence for
the prosecution was closed. The statement
of the accused was recorded under Section
313 Cr.P.C. wherein in reply to the question
no.11 and 12, specific statement has been
made as to how and why PW-1 and PW-2
are deposing against the appellant basically
on account of enmity in collusion with the
police. PW-1 and PW-2 are agents of the
police. No evidence, whatsoever, has been
led by the appellant.

16. The case was heard on merit by
the learned trial Judge who after appraisal
of facts and evaluation of the evidence and
circumstances of the case, returned finding
of conviction against appellant under
Section 302 I.P.C. and sentenced the
appellant to life imprisonment under
Section 302 I.P.C.

17. Consequently, this appeal.

18. It has been vehemently submitted
by learned counsel for the appellant that
insofar as testimony of both PW-1 and PW2 is concerned, when read cumulatively, it
226 INDIAN LAW REPORTS ALLAHABAD SERIES
would come out that they did not see actual
assailant causing injury with Ballam (lance)
to the deceased Ramagya Singh. There was
some incident of extending threat alone
regarding which both the prosecution
witnesses have testified with variation.
However, if testimony of one is taken to be
true then it is noticeable that PW-1 Kripa
Shanker Singh, who happened to be a
doctor by profession, he cannot be expected
to be a rustic man and unaware of the
situation and not responding properly on
the spot at the time of commission of the
offence, for the reasons that the deceased
Ramagya Singh remained alive after the
occurrence for about 30 minutes. But this
witness (PW-1) has tried to improve the
case by stating that at the time when he
reached to the spot, the deceased told him
that he has been stabbed with Ballam
(lance). The deceased Ramagya Singh was
crying that the appellant had assaulted him.
However, the statement under Section 161
Cr.P.C. is found not supported by him on
this particular aspect of the case. It is
noticeable that he being scribe (PW-1) of
the report has not stated even a single word
about the same in the first information
report. If this piece of testimony is believed
and taken to be true then it works in
contrast to the testimony of Rama Shanker
Singh PW-2.

19. As per testimony of PW-1, he did
not see anyone committing the crime in
question. When he arrived on the spot, he
did not see anyone committing assault on
the deceased with Ballam (lance). Either of
the two versions of PW-1 or PW-2 may be
true. As per testimony of Rama Shanker
Singh PW-2, he arrived on the spot along
with Kripa Shanker Singh PW-1. There is
no case that Kripa Shanker Singh PW-1 did
not arrive on the spot in company with
Ram Shanker Singh.

20. It has been further submitted that
insofar as the first information report is
concerned that this is highly belated, for
which no plausible reason has been
assigned in the testimony of the informant
PW-3 as to how the first information report
was so belatedly lodged by her. However, it
has been stated in the first information
report that it being night hours, the first
information report could not be lodged with
the police station concerned that by itself is
nothing but deliberate attempt to avoid the
prevailing situation.

21. It is noticeable that in the
testimony of Kripa Shanker Singh PW-1, it
has surfaced that the police had arrived on
the spot prior to 10:00 a.m. on 19.06.1983
and after deliberation with the police,
Daroga Ji asked that report should be
written / scribed, thereafter, the report was
written and lodged with the police station
concerned, that fact by itself is fair enough
to throw away the entire prosecution case,
for the reason that as per the prosecution
claim, the first information report was
lodged at 7:45 a.m. on 19.06.1983, Police
Station
Khanpur,
District
Ghazipur,
whereas, testimony of PW-2 is reflective of
fact that the dead body was taken to the
police station on tractor prior to arrival of
Daroga Ji at 10:00 a.m.

22. Based upon that fact position and
testified by PW-2, claim is that insofar as
preparation of inquest report Ext. Ka-9 is
concerned, arrival of the police on the spot
was stated to be around 9:45 a.m. It was
time when the preparation of inquest
commenced, however the inquest was
completed around 11:55 a.m. That being
admitted position how can the dead body
be brought to the police station Khanpur
prior to 11:55 a.m. But as per testimony of
the prosecution witnesses, the dead body
10 All. Girish Singh Vs. State of U.P.
227
had already been taken to the police station
Khanpur, that by itself is connotative to fact
that the police were acting hand in glove
with the scribe and the other prosecution
witnesses of this case.

23. Insofar as PW-3, informant of this
case is concerned, she has denied, out and
out lodging of any first information report
in the shape as claimed by the prosecution
witnesses. She has not supported the
prosecution version. She has not accused
the appellant of any act of assault being
caused by him as such. The enmity with the
appellant on the one hand and Kripa
Shanker Singh PW-1 and Rama Shanker
Singh PW-2 on the other hand is admitted.
In view of the statement of the accused
under Section 313 Cr.P.C. as given in reply
to question no.11, both the witnesses were
inimical towards the appellant, and the fact
of grudge and animosity is very much
proved. It is highly improbable that the
appellant had killed the deceased Ramagya
Singh.

24. Learned counsel for the appellant
has further contended that testimony of
witnesses
of
fact
is,
on
the
face,
contradictory
and
full
of
inherent
infirmities. There is no point for making
charge under Section 302 I.P.C. Charge
itself is erroneous. Learned trial Judge
while appraising facts and evaluating
evidence and circumstances misread the
same and recorded erroneous and illegal
finding of conviction and sentence.

25. Per contra, the learned A.G.A.
retorted
to
aforesaid
arguments
by
submitting that the entire scene has been
described in the testimony of the Kripa
Shanker Singh PW-1 and Rama Shanker
Singh PW-2. Ram Devi PW-3 has not
supported the prosecution case although
circumstances of the case are consistently
proved by PW-1 and PW-2 that prior to the
incident, the appellant was threatening and
he proceeded possessing Ballam (lance)
towards the house / spot where the
deceased Ramagya Singh was sleeping in
front of the door of Bhagawati.

26. The learned counsel proceeded to
add that no doubt can be raised on the
innocuous testimony of PW-1 and PW-2
which positively proves guilt of the
accused-appellant
beyond
reasonable
doubt. There is no material contradiction in
the testimony of the prosecution witnesses.
Learned trial court has judiciously recorded
conviction and has passed appropriate
sentence.

27. We have also considered the rival
submissions and taken into consideration
rival claims.

28. In view of above, the point for
determination of this appeal relates to fact
as to whether the offence under Section 302
I.P.C. was committed by the accusedappellant
by
stabbing
the
deceased
Ramagya Singh with Ballam (lance) on
19.06.1983 around 11:45 p.m. and he was
seen by the witnesses and the prosecution
has proved charge under Section 302 I.P.C.
beyond reasonable doubt?

29. In that regard, we would like to
discuss the point of the first information
report to be ante timed as raised by the
learned counsel for the appellant. In that
regard, we come across detailed testimony
of the scribe (PW-1) of the first information
report who has testified to the ambit as
appear on page 24 of the paper-book that
Daroga Ji arrived on the spot around 9:00
a.m. - 10:00 a.m. and the report was written
after 10 to 15 minutes of his arrival. That
228 INDIAN LAW REPORTS ALLAHABAD SERIES
piece of testimony reveals in no uncertain
terms fact that the first information report
was not existing at 10:00 a.m. on
19.06.1983. Moreover, Daroga Ji who
arrived on the spot had surveyed the spot,
prior to the report being scribed, took stock
of the situation and directed the persons
present over there to sribe the report.

30. It has been stated by PW-1 on
page no.25 of the paper-book that Daroga Ji
took the dead body to the police station
concerned on tractor. This aspect of F.I.R.
being ante timed overshadows the entire
prosecution case, for the reason that the
entire things looked vitiated and full of
ambiguity cannot be believed on its face
value. It appears that Daroga Ji played hand
in glove with PW-1 and PW-2. PW-2 if
taken to be true then his testimony
vindicates that he neither saw the appellant
commit the crime nor did he see the
appellant
in
the
nearby
place
(of
occurrence) after the occurrence.

31. The prosecution has not clarified
about the piece of testimony of PW-1
appearing on page no.24 of the paper-book,
as discussed above, regarding arrival of
Daroga Ji on the spot around 9:00 a.m. -
10:00 a.m. on 19.06.1983 and that piece of
testimony by itself is established and
admitted case against the prosecution and
re-examination of PW-1 on this point as
was required of the prosecution was waived
off by it. That being the case, the other
aspects of this case need not be looked into
at this stage, for the reason that the
informant PW-3 has not supported the
prosecution story and has stated in
categorical terms that report was not
written on her dictation, for the reasons
best known to her. Nothing adverse of the
sort has emerged in the cross-examination
of PW-3 by the prosecution itself.

32. It is settled principle of criminal
jurisprudence that in cases where evidence
and
circumstances
when
weighed
substantially and taken cumulatively raised
strong suspicion about the manner and style
of the occurrence that it was in fact so
caused
by
the
accused-appellant
(as
claimed by the prosecution), then benefit of
doubt would be the only reasonable
outcome of judicial scrutiny and this
benefit of doubt always works in favour of
the appellants.

33. The learned trial court could not
appraise substantive facts and testimony of
this
case
in
right
perspective
and
considered things from narrow angle
without properly scrutinizing the same on
its entirety and intrinsic potency, instead it
read testimony and circumstances only on
its face value, whereas, proper scrutiny of
fact vis a vis testimony on record would
have brought truth on the surface. It is very
easy to consider and examine testimony
recorded in examination in chief, whereas,
the Court has to cautiously contemplate on
the entire testimony as a whole and
particularly as emerging from the cross
examination and then to proceed to record
finding on merit for arriving at just
conclusion.

34. We may record our satisfaction
that arguments extended on behalf of the
present appellants carry force and the same
are
approved
and
sustained
by
us.
Consequently we hold in unambiguous
term that the prosecution has not been able
to prove its case beyond reasonable doubt
against the appellant. Thus charge framed
against him become doubtful and he is
entitled to the benefit of doubt.

35. In the wake of above discussion,
we may sum up that the finding of
10 All. Ashok Vs. State of U.P.
229
conviction recorded by the trial court is
on the face erroneous and perverse and
the same cannot be sustained in the eye of
law. Therefore, the judgment and order of
conviction dated 31.10.1984 passed by IV
Additional Sessions Judge, Ghazipur, in
Session Trial No.37 of 1984, State Vs.
Girish Singh, arising out of Case Crime
No.76 of 1983, under Section 302 I.P.C.,
Police
Station-
Khanpur,
District-
Ghazipur, is hereby set aside. Accusedappellant is acquitted of charge as above.
Accordingly,
the
instant
appeal
is
allowed.

36. In this case, the accused-appellant
is already on bail. He need not surrender in
this case. His bail bonds cancelled and
sureties discharged. However, he shall
furnish surety bonds in compliance with
Section 437A Cr.P.C.

37. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2022) 10 ILRA 229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

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

Criminal Appeal No. 3950 of 2016
with
Criminal Appeal No. 4177 of 2016

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

Counsel for the Appellant:
Sri Shri Ram Rawat, Sri Ajay Kumar, Sri Giri
Ram Rawat, Sri Pradeep Chauhan, Sri
Rakesh Kumar Verma, Sri Ram Jatan Yadav,
Sadhna Rani, Sri Anil Kumar Srivastava

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-Challenge
to-Conviction- dying declaration-deceased
died due to septicemia caused by burn
injuries-Four witnesses turned hostileWitnesses involved in recording the dying
declaration
fully
supported
the
prosecution case-role of appellant is clear
from the dying declaration and other
evidences--Hence, Learned trial court has
committed no error on acting on the sole
basis of dying declaration-The case falls
within the ambit of Section 304 IPC and
not
under Section 302
IPC
as
the
deceased died after 14 days of incident
due to the poisonous infection developed
in her burn injuries-Thus, The conviction
of appellant u/s 302 IPC is converted into
section 304 (Part -I) IPC.(Para 1 to 40)

B. The testimony of hostile witnesses can
be relied upon to the extent it supports
the prosecution case. 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.(Para 15 to 17)

C. 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, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 20 to 25)