# Harish Chandra (In Jail) v. State

- **Citation:** (2019) 1 ILRA 1274
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-11-25
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chandra-in-jail-v-state-44300
- **Pages:** 10

## Headnote

D.G.A., Sri Vinai Singh.

A. Authenticity of the Delay Dying
Declaration
and
suspicion
(Dying
Declaration under Section 32 (1) Indian
Evidence Act.

In dying declaration was recorded by the
doctor
in
dying declaration deceased
indicate name of accused- appellant. But
unfortunately another report typed out
and
sent
to
the
police
station
by
registered post (Para 27). The dying
declaration was not recorded before the
Magistrate, although the deceased had
remained alive for about 10 days after
being shot and there was ample time for
doctor who claims to have recorded the
dying declaration of the deceased to have
called the Magistrate rather than recording
the same himself without there being any
evidence on record showing that the
deceased's
condition
at
the
time
of
recording of her alleged dying declaration
was so serious that there was no time to
call the Magistrate for recording her dying
declaration(Para 37). If the deceased had
actually identified accused-appellant she would
have certainly disclosed his name to informant.
(Para 39)

Criminal Appeal allowed. (E-2)

## Text

1274 INDIAN LAW REPORTS ALLAHABAD SERIES
and another vs. Hotel Blue Moon
(supra), as Assessing Officer did not issue
notice as contemplated under Section
143(2) of the Act in block assessment
proceedings under Section 158BC, which
was mandatory and non service thereof is
fatal.

14. The order of the Tribunal dated
13.10.2005 as far as non-issuance of
notice under Section 143(2) of the Act is
set aside.

15. The appeal is allowed. The
question of law, therefore, is answered in
favour of the assessee and against the
Revenue.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2017

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 1964 OF 1983

Harish Chandra ...Appellant (In Jail)
Versus
State ...Respondent

Counsel for the Appellant:
Sri A.D. Giri, Sri Dharmendra Singhal, Sri
Pankaj Kr. Tyagi, Sri Pankaj Singh, Sri
R.S. Sengar.

Counsel for the Respondent:
D.G.A., Sri Vinai Singh.

A. Authenticity of the Delay Dying
Declaration
and
suspicion
(Dying
Declaration under Section 32 (1) Indian
Evidence Act.

In dying declaration was recorded by the
doctor
in
dying declaration deceased
indicate name of accused- appellant. But
unfortunately another report typed out
and
sent
to
the
police
station
by
registered post (Para 27). The dying
declaration was not recorded before the
Magistrate, although the deceased had
remained alive for about 10 days after
being shot and there was ample time for
doctor who claims to have recorded the
dying declaration of the deceased to have
called the Magistrate rather than recording
the same himself without there being any
evidence on record showing that the
deceased's
condition
at
the
time
of
recording of her alleged dying declaration
was so serious that there was no time to
call the Magistrate for recording her dying
declaration(Para 37). If the deceased had
actually identified accused-appellant she would
have certainly disclosed his name to informant.
(Para 39)

Criminal Appeal allowed. (E-2)

(Delivered by Hon'ble Bala Krishna
Narayana, J.
& Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Pankaj Tyagi, learned
counsel for the appellant, Sri Anil Pathak,
A.G.A. 1st, assisted by Sri J.K. Upadhyay
and
Km.
Meena,
learned
A.G.As.
appearing on behalf of the State.

2. This appeal has been preferred by the
accused-appellant Harish Chandra against the
judgment dated 20.08.1983 and order dated
22.08.1983 passed by Shri S.K. Srivastava-II
Additional Sessions Judge, Muzaffarnagar in
Sessions Trial No. 330 of 1982 (State Vs.
Harish Chandra) arising out of Case Crime
No. 40 of 1982 at Police Station Thana
Bhawan, District Muzaffarnagar by which the
appellant has been convicted and sentenced to
imprisonment for life under Section 302 I.P.C.

3. The prosecution case as emerging
out from the material on record is as
follows
:
1 All. Harish Chandra Vs. State
1275

(i) Written report Ext. Ka1 with
regard to an incident which had taken
place on 21.3.1982 at 6;30 A.M. in which
one Smt. Kiran Devi had received
gunshot injuries, which was scribed by
one Veer Singh son of Chhotey Singh on
the dictation of P. W. 1 Mahabir Singh
son of Himanchal Singh was given at
Police Station Thana Bhawan, District
Muzaffarnagar on 21.3.1982 at about 6:30
A.M. was registered at Case Crime No. 40
of 1982, under Section 308 I.P.C., chek
F.I.R. Ext. Ka7 and corresponding G.D.
entry was recorded at serial number 10
Ext. Ka8, copy is on record.

4. After lodging the report, the
informant came back to the P.H.C. Thana
Bhawan where Dr. Akhtar Ali P. W. 4
examined the injuries of Smt. Kiran Devi
at 7:00 A.M. Dr. Akhtar Ali found
following injuries on the person of Smt.
Kiran Devi.

Gun shot wound 3 x 2 cm on left
side of back just lateral to vertebral
column at the level of 3rd thoracic spine.
The wound was side to side. The edges
were inverted reddish. It was a inlet
wound outlet not present. Pallets are
inside. Blood around the wound was
present. No blackening or tattooing
present around the wound.

Gun shot wound 2 cm in
diameter on right side of back just lateral
to vertebral column 2 cm right to injury
no. 1. Edges were inverted. No blackening
was seen. Blood clot was present. Advised
x-ray.

5. In the opinion of P. W. 4 Dr. Akhtar
Ali, the injuries were serious in nature and
caused by firearm from a distance of about 3
feet and were fresh at the time of the medical
examination. P. W. 4 Dr. Akhtar Ali prepared
injury report of Smt. Kiran Devi which is on
record as Ext. Ka3.

6. P. W. 4 Dr. Akhtar Ali sent the
injured Smt. Kiran Devi to the district
hospital, Muzaffarnagar from where she
was allegedly taken to Medical College
Meerut (hereinafter referred to as the "
Medical College") for necessary treatment
where she reached on the same day and
was admitted in the Medical College. P.
W. 8 Dr. O. P. Nagpal who was on duty in
the emergency ward at that time admitted
Smt. Kiran Devi for treatment. On
22.3.1982
Smt.
Kiran
Devi
was
transferred from the emergency ward to
the orthopedic department of the College
where she was treated and an operation
was also performed and she was kept
there for further treatment.

7. On 23.3.1982 Dr. Nagpal was
informed by the orthopedic department
that the dying declaration of Smt. Kiran
Devi was to be recorded. P.W. 8 Dr. O. P.
Nagpal sent information to the police
station
for
making
necessary
arrangements for recording the dying
declaration of Smt. Kiran Devi. However,
the police failed to make any arrangement
and procure the service of a Magistrate
for that purpose and therefore, P. W. 8 Dr.
O.P. Nagpal himself recorded the dying
declaration of Smt. Kiran Devi on
23.3.1982 at 10:30 A.M. The dying
declaration recorded by him is Ext. Ka12
on record. In the dying declaration Smt.
Kiran Devi named her brother-in-law
(Bahnoi) Harish Chandra as her assailant.
When the informant Mahabir Singh came
to know that Smt. Kiran Devi had named
her brother-in-law Harish Chandra as her
assailant, he got another report Ext. Ka2
typed out and sent it to the Station Officer
P. S. Thana Bhawan by registered post
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
and it appears that this second report
reached P. S. Thana Bhawan on 24.3.1982
and was handed over by the S.O. P. S.
Thana Bhawan to P. W. 7 S.I. Jai Pal
Singh to whom the investigation of the
case had been entrusted.

8. Smt. Kiran Devi was discharged
from the Medical College on 27.3.1982
and was then brought by Mahabir Singh
to her residence in Village Harar, district
Fatehpur.

9. When the F.I.R. of this case was lodged
at the Police Station Thana Bhawan on
21.03.1982 at about 6:35 A.M. S.I. Jai Pal Singh
was present and the investigation of the case was
handed over to him. He immediately went to
P.H.C. Thana Bhawan where he recorded the
statement of Mahabir Singh. It is stated that
Mahabir Singh and Investigating Officer of the
case went to the scene of occurrence and
inspected the same. He collected bloodstained
earth and kept it in a box and sealed it. He also
collected plain earth from the vicinity of the
scene of occurrence and kept it in another box
and sealed it and prepared Fard Ext. Ka5. The
said boxes were marked as material Exts. Ka1
and Ka2. After inspecting the scene of
occurrence he prepared it's site plan Ext. Ka6.
Thereafter he recorded the statement of Km.
Anjana Rani and then came back to the police
station. The injury report of Smt. Kiran Devi
was prepared by P. W. 4 Dr. Akhtar Ali.

10. On 28.3.1982, Investigating Officer of
the case went to the Medical College Meerut
and contacted Sri Rajendra Nath In-Charge of
the Orthopedic Department who informed him
that Smt. Kiran Devi had been discharged a day
earlier i.e. on 27.03.1982.

11. He did not do anything thereafter
and on 31.03.1982 P. W. 9 Sri Babu Ram, the
then S.O. P.S. Thana Bhawan took over the
charge and started investigation himself. On
the same day, he recorded the statement of
Smt. Kiran Devi Ext. Ka23, informant
Mahabir Singh and witnesses Richpal, Isam
Pal Raj Pal, Krishna Pal, Satya Bhan Singh
and Lala Jai Prakash.

12. He started searching accusedappellant Harish Chandra but he was
untraceable. On 16.04.1982 he raided the
house of accused-appellant Harish Chandra
but he was not present there. The S.O. then
got the case under Section 308 I.P.C.
converted to one under Section 307 I.P.C. The
Investigating Officer obtained proclamation
and warrant under Sections 82 and 83 Cr.P.C.
Ext. Ka21 and Ext. Ka22.

13. On 3.5.1982, Smt. Kiran Devi
died at about 9:00 P.M. and it is alleged
that she died on account of the injuries
caused to her by accused-appellant Harish
Chandra in the aforesaid occurrence. The
informant Mahabir Singh then went to the
police station Thana Bhawan at 9:45 P.M.
and informed the police about the death of
Smt. Kiran Devi. The case was then
converted to one under Section 302 I.P.C.
and necessary entry in the G. D. was
made, carpon copy of which is on record
as Ext. Ka10.

14. The I.O./S.I. Babu Ram along
with Constable Munshi Ram and Home
Guard Sohan Lal went to the house of
the informant on the same night and
after
appointing
Panchs,
conducted
inquest on the body of the deceased and
prepared inquest report Ext. Ka14,
Sketch of the dead body Ext. Ka15,
Challan lash Ext. Ka18, letter addressed
to
C.M.O.
Muzaffarnagar
for
postmortem examination Ext. Ka16 and
letter
to
the
R.I.
Police
Lines,
Muzaffarnagar, Ext. Ka17. The dead
body was then sealed and handed over
1 All. Harish Chandra Vs. State
1277
to Constable Banshi Ram and Home
Guard Sohan Lal along with necessary
papers.

15. Constable Banshi Ram and
Home Guard Sohan Lal brought the dead
body
of
Smt.
Kiran
Devi
to
Muzaffarnagar and handed it over to Dr.
S.K. Sharma on 4.5.1982. Dr. S.K.
Sharma
performed
the
postmortem
examination on the dead body of Smt.
Kiran Devi on the same day at about 1:00
P.M. He found that the deceased was aged
about 22 years and she had died about
3/4th
day
before
the
postmortem
examination. Rigor Mortis was present
over inferior extremities and was going
from superior extremities. He found the
following ante-mortem injuries on the
dead body of Smt. Kiran Devi :

Suppurated wound 2" x 1" x
bone over thoracic spine upper part more
towards left side. There were stitches still
in the wound. Surgical dressing applied.

Suppurated wound 1/2" x 1/2" x
bone over right inter scapular region.

Three suppurated wounds in an
area of 3" x 2" over right side back upper
third. Size varying from 1" x 1/2" x
muscle to 1/2" x 1/2" x skin.

Suppurated wound 2 (1/2)" x 1"
x skin over 1-umber spine.

Large suppurated wound 13" x
5" x bone over sacrum and adjacent parts
of both gluten move on right side.

Suppurated wound 5 (1/2)" x 5"
x muscle over left hip lateral half.

Multiple
suppurated
wounds
over both legs and heels. Size varying
from 1" x 1/2" x skin to 4" x 2" x muscle.

16. On internal examination, he
recovered 2 metallic pallets under the skin
of left side of neck and recovered three
metallic pallets from C-6 to T-4 level in
the body. In his opinion, the cause of
death was prolonged suppuration and
toxemia. He prepared the postmortem
report Ext. Ka4.

17. The accused-appellant Harish
Chandra surrendered in the court on
11.5.1982
and
was
put
up
for
identification on 24.6.1982 where Rich
Pal and Isam Singh came for his
identification but both of them failed to
identify him. The Investigating Officer
then concluded the investigation and
submitted charge-sheet Ext. Ka19 against
the accused-appellant Harish Chandra.

18. The prosecution in order to
prove it's case against the accusedappellant Harish Chandra examined as
many as 10 witnesses of whom P. W. 1
Mahabir Singh, P. W. 2 Kishan Pal and P.
W. 3 Satya Bhan were examined as
witnesses of one fact or the other
connected with the crime while P. W. 4
Dr. Akhtar Ali, P. W. 5 Dr. S.K. Sharma,
P. W. 6 S.I. Jaipal Singh, P. W. 7 Head
Constable Hari Singh, P. W. 8 O. P.
Nagpal, P. W. 9 Babu Ram and P. W. 10
Banshi Ram were produced as formal
witnesses. The prosecution also adduced
documentary evidence to which we shall
refer as and when the context so requires.

19. The accused-appellant Harish
Chandra in his statement recorded under
Section 313 Cr.P.C. stated that there
was a rumor that the informant's son
Brij Raj Kishore husband of Smt. Kiran
Devi committed the murder of Smt.
Kiran Devi and when he got this
information, he alongwith his brotherin-law (saala) namely Ram Bhul Singh,
i.e. brother of Smt. Kiran Devi, went to
Medical College on 22.3.1982. At the
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
College Ram Bhul Singh told the
informant Mahabir Singh that Smt.
Kiran Devi had been shot by Brij Raj
Kishore. The informant Mahabir Singh
however did not allow him as well as
Ram Bhul Singh to meet Smt. Kiran
Devi. He added that Smt. Kiran Devi
was the third wife of the aforesaid Brij
Raj
Kishore. The
first
wife was
divorced by Brij Raj Kishore and the
second wife was killed by him and then
he had arranged the marriage of his
sister-in-law Smt. Kiran Devi with the
aforesaid Brij Raj Kishore because the
informant Mahabir Singh had requested
him to get his son Brij Raj Kishore
married. According to him, since he was
himself searching the assailant of Smt.
Kiran Devi he was falsely implicated in
this case by Mahabir Singh to save his
own son Brij Raj Kishore.

20. The learned IInd Additional
Sessions Judge, Muzaffarnagar after
considering the submissions advanced
before him by the learned counsel for
the
parties
and
scrutinizing
the
evidence on record, convicted the
accused-appellant
Harish
Chandra
under Section 302 I.P.C. and awarded
sentence of life imprisonment to him.

21. Hence this appeal.

22. It is submitted by the learned
counsel for the appellant that the appellant
was not named in the FIR which was
lodged by the P. W. 1 Mahabir Singh on
21.3.1982.
However
after
due
deliberations and consultations he gave
another report on 24.3.1982 stating
therein that since the deceased Kiran Devi
had remained unconscious after being
shot, P. W. 1 in the FIR of the incident
lodged by him had not named anyone as
accused.
However
on
regaining
consciousness Smt. Kiran Devi informed
him that she had been shot by the
accused-appellant
Harish
Chandra,
although the written report of the incident
Ext. Ka1 does not contain any recital that
the deceased Kiran Devi had become
unconscious after being shot. He next
submitted that it is proved from the facts
and circumstances of the case that it was
Brij Kishore, the husband of the deceased
and the son of the first informant who had
shot the deceased, with the object of
saving his son, the informant had
nominated the applicant who is the
brother-in-law (jeeja) of the deceased as
accused
in
the
application
dated
21.3.1982. He further submitted that the
so called dying declaration of the
deceased recorded on 23.3.1982 in which
the deceased Kiran Devi had accused the
appellant of causing firearm injury to her
is a fabricated document and the same
does not inspire any confidence in view of
the fact that the same does not contain any
certification of the doctor who had
recorded her dying declaration that the
deceased was at the time of the recording
of her dying declaration conscious and in
a fit mental condition to give her dying
declaration. He further submitted that the
first dying declaration allegedly made by
the deceased before P. W. 1 Mahabir
Singh is wholly unreliable and unworthy
of credence. He lastly submitted that there
being no legally admissible evidence on
record to sustain the recorded conviction
of the appellant and the sentence of life
imprisonment awarded to him by the trial
court cannot be sustained and are liable to
be set aside.

23. Per contra Sri Saghir Ahmad,
learned A.G.A. appearing for the state
submitted
that
the
prosecution
has
succeeded in proving by cogent and
1 All. Harish Chandra Vs. State
1279
reliable evidence that the murder of Smt.
Kiran Devi was committed by the accusedappellant Harish Chandra by causing firearm
injury to her. The complicity of the accusedapplicant in the commission of the murder of
Smt. Kiran Devi stands fully proved from the
evidence of P. W. 1 Mahabir Singh and the
facts stated by deceased Smt. Kiran Devi in
her dying declaration Ext. Ka2. The medical
evidence on record fully corroborates the
prosecution story. The impugned judgment
and order do not suffer from any illegality or
infirmity warranting any interference by this
Court. This appeal lacks merit and is liable to
be dismissed.

24. We have very carefully
considered the submissions made by
learned counsel for the parties before us
and perused the entire lower court record.
The only question which arises for our
consideration in this appeal is that
whether the prosecution has been able to
prove it's case against the accusedappellant Harish Chandra beyond all
reasonable doubts or not ?

25.

Record
shows
that
the
prosecution in order to prove it's case
against
the
accused-appellant
had
examined as many as 10 witnesses of
whom P. W. 1 informant Mahabir Singh,
P. W. 2 Kishan Pal and P. W. 3 Satya
Bhan were examined as witnesses of fact
while the remaining witnesses were
formal witnesses.

26. We first proceed to discuss the
evidence of all the three witnesses of fact
P. W. 1 Mahabir Singh, P. W. 2 Kishan
Pal and P. W. 3 Satya Bhan produced by
the prosecution during the trial.

27. The informant P. W. 1 Mahabir
Singh stated that on 21.3.1982 at about
5:45 - 6:00 AM, he along with his
daughter Km. Anjana and daughter-in-law
Smt. Kiran Devi was proceeding towards
the Asthan of Johan Singh Devta where
his
daughter-in-law
was
going
for
worship and at that time Smt. Kiran Devi
was in family way. While going to the
Asthan of Johan Singh Devta he was
ahead of all of them and his daughter-inlaw was behind him and his grand
daughter Km. Anjana and when he
reached near the tubewell of Baljeet
Singh, grand father of the accusedappellant Harish Chandra, he heard a
sound of gunshot and when he turned his
back, he saw a person running away
towards the village Abadi and his
daughter-in-law Smt. Kiran Devi criying
out that she had received firearm injury,
she fell on the ground and when he came
near his daughter-in-law, he found her
lying on the ground unconscious with
firearm injuries. He also stated that his
eye sight was weak therefore he was
unable to recognize the man from a
distance of 3-4 paces and therefore, he
could not identify the person who had
shot her and run away from the scene of
the occurrence towards the village Abadi.
He further stated that he took his
daughter-in-law Smt. Kiran Devi to the
P.H.C. Thana Bhawan where he dictated a
report of the occurrence to Veer Singh
Ext. Ka1 and then delivered the same at
the police station Thana Bhawan in the
morning and thereafter when he came
back from the police station, the medical
examination of his daughter-in-law Smt.
Kiran Devi took place. He also stated that
his daughter Km. Anjana lives with her
maternal grand mother in Haryana.
According to him, after the medical
examination of Smt. Kiran Devi at P.H.C.
Thana Bhawan he took her to the District
Hospital, Muzaffarnagar and from there
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
he took her to Medical College Meerut where
she regained consciousness on 23.3.1982 and
then her dying declaration was recorded by P.
W. 8 Dr. O.P. Nagpal at the College. In the
dying declaration, his daughter-in-law named
the accused-appellant Harish Chandra as her
assailant and when he came to know about it,
he got another report typed out and sent to the
police station Thana Bhawan by registered
post. He also stated that his daughter-in-law
Smt. Kiran Devi was discharged from the
College on 27.3.1982 and then he brought her
back to the village where despite proper care
she died on 3.5.1982 on account of the injuries
sustained by her in the aforesaid occurrence
which took place on 21.3.1982. He gave
information about the death of Smt. Kiran
Devi to the police. He also stated that Rich
Pal, Isam Singh, Raj Pal and Krishan Pal had
also told him about the occurrence. He also
stated that almost about a month before the
occurrence his daughter-in-law Smt. Kiran
Devi had started going to the Asthan of Johan
Singh Devta for worship every week either on
saturday or sunday mostly on sunday and
seldom on saturday. He denied that the spot
inspection was done by the I.O. in his
presence. He in his cross-examination further
stated that on 31.3.1982 after the I.O. recorded
the statement of Smt. Kiran Devi in the village
and went away then Raj Pal, Sat Bhan and
Krishan Pal came there and told him that on
21.3.1982 they had seen accused-appellant
Harish Chandra running towards village
Abadi from the crime scene of the occurrence
with a firearm and then he took them to the
police station where their statements were
recorded.

28. P. W. 2 Krishan Pal stated that
on 21.3.1982 at about 6:00 A.M. he
alongwith Raj Pal and Satya Bhan was
going to ease himself and when they took
a turn on the road leading to village Nojal
he as well as Raj Pal and Satya Bhan saw
the accused-appellant Harish Chandra
running from the Nojal side towards the
Village Abadi with a Katta in his hand.
Raj Pal enquired from Harish Chandra as
to what had happened but Harish Chandra
did not not reply. He then went upto the
side of the tubewell of Baljeet which is
adjacent to the road leading to village
Nojal. He saw Smt. Kiran Devi lying
unconscious in injured condition and
bleeding near the tubewell of Baljit Singh
and then Mahabir Singh who was present
there arranged a cot and took her towards
his house. He in his cross-examination
admitted that several persons of the
village had collected there but neither he
nor his two companions Raj Pal and Satya
Bhan told anybody that they had seen the
accused-appellant
Harish
Chandra
running away with a pistol from the place
of occurrence.

29. P. W. 3 Satya Bhan made almost
similar statement as P. W. 2 Krishan Pal.
Over and above he also added that on
31.3.1982 at about 6:15 P.M. he was
going to ease himself and when he passed
in front of the house of P. W. 1 Mahabir
Singh he saw a police vehicle standing
and he enquired as to what was the
matter, he was told that the accusedappellant Harish Chandra had fired at
Smt. Kiran Devi. On receiving the
aforesaid information, it flashed in his
memory that he had seen the accusedappellant Harish Chandra running on
21.3.1982 with a pistol and it was
possible that he might have shot at Smt.
Kiran Devi and then he told about it to P.
W. 1 Mahabir Singh. He in his crossexamination he admitted that he is the real
nephew of the informant Mahabir Singh
P. W. 1 and when he asked from him as to
why he did not tell Mahabir Singh or
others who were present at the scene of
1 All. Harish Chandra Vs. State
1281
occurrence on 21.3.1982 that he had seen
Harish Chandra running towards village
Abadi with a pistol in his hand, he said
that at that time he never thought that
Harish Chandra who was the real brotherin-law (Bahnoi) of Smt. Kiran Devi could
have shot her and that is why he did not
tell anything either to Mahabir Singh or
others.

30. The dying declaration Ext. Ka12
of the deceased- Smt. Kiran Devi
recorded by P. W. 8 Dr. O.P. Nagpal is as
follows :

"Mai Itwar Kee Subha 6:00 Bajay
Devta Par Ja Rahi Thee. Mere Baray Jija Sri
Harish Chandra Jo apnay tubewell par
kharay thay, rastay mai parta hai, Mainay
Pahchan Liya. Mere Jija mere Pichchay
Pichchay Aaye aur mainay Poocha mere
pichchay pichchay Que Aa rahay Ho.
Mujhsay Kucch Nahi Bolay. Mujhsay Teen
Saal pahlay unhonay kaha tha kee tumhay
goli maar doonga. Tumhara Rista mere Gair
Raazi say hua hai.

Mujhay enhonay Pichchay say
gooli maar dee aur bhaag gaye aur mai
Baihosh hokar gir pari.

Uprokt bayan mujhay Pathkar
sunaya gaya."

31. It is undisputed that Smt. Kiran
Devi had received firearm injury on
21.3.1982 in the early hours and she died
on 3.5.1982 in her husband's house.

32. The question of primary importance
in this case is that whether the prosecution has
been able to link the appellant with the crime
in question by leading any cogent and reliable
evidence or not.

33.

Record
shows
that
the
prosecution in order to prove its case
against the accused-appellant examined P.
W. 1 Mahabir Singh, P. W. 2 Krishan Pal
and P. W. 3 Satya Bhan as witnesses of
fact and apart from the oral and
documentary evidence on record, there is
dying declaration of the deceased which
has already been reproduced hereinabove.

34. As far as the evidence of P. W. 1
Mahabir Singh is concerned, there is no
doubt about the fact that he neither
witnessed the incident nor recognized the
assailants. P. W. 2 Krishan Pal and P. W.
3 Satya Bhan have also not deposed that
they had seen the appellant firing at the
deceased, they have merely deposed that
on the date of incident they had seen the
appellant running from the Najel side
towards the village Abadi with a Katta in
his hand and then they saw Kiran Devi
bleeding and lying unconscious in an
injured condition near the tubewell of
Baljeet Singh. The evidence of P. W. 2
Krishan Pal and P. W. 3 Satya Bhan has
been castigated by the learned counsel for
the appellant on the ground that they had
not stated the same to the Investigating
Officer, S.I. Jaipal Singh on 21.3.1982,
the date of incident and hence they by
deposing before the trial court that they
had seen the appellant on the date of
occurrence,
they
made
material
improvements in their evidence and hence
no reliance can be placed on the same.

35. It emerges from the record that
these witnesses had not given any such
statement to the Investigating Officer on
21.3.1982 when he had come to the
village
in
connection
with
the
investigation of the case. There is another
very material aspect of the matter which
shrewd their evidence with suspicion is
that although admittedly the deceased was
known to P. W. 2 Krishna Pal and P. W. 3
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
Satya Bhan, P. W. 3 Satya Bhan being the
nephew
of
the
informant
but
no
explanation is coming forth from them for
their failure to tell P. W. 1 Mahabir Singh
that they had seen the appellant running
with a Katta in his hand. Otherwise the
said fact would have certainly found
mention in the F.I.R. and P. W. 2 Krishna
Pal and P. W. 3 Satya Bhan would have
been nominated as witnesses therein.

36. Thus, we are of the view that the
evidence of P. W. 2 Krishna Pal and P.
W. 3 Satya Bhan is not wholly reliable
and nothing turns upon the evidence of P.
W. 1 Mahabir Singh.

37. Now we are left with the dying
declaration of the deceased which is on
record as Ext. Ka2. The authenticity of
the dying declaration of the deceased has
been assailed by the learned counsel for
the appellant on the ground that the same
was not recorded before Magistrate,
although the deceased had remained alive
for about 10 days after being shot and
there was ample time for P. W. 8 Dr. O.P.
Nagpal who claims to have recorded the
dying declaration of the deceased to have
called
the
Magistrate
rather
than
recording the same himself without there
being any evidence on record showing
that the deceased's condition at the time of
recording of her alleged dying declaration
was so serious that there was no time to
call the Magistrate for recording her dying
declaration.

38. Another ground on which the
learned counsel for the appellant has
assailed the dying declaration of the
deceased is that if the deceased had
recognized the appellant as the person
who had shot her, she would have
disclosed his name to her father-inlaw, P. W. 1 Mahabir Singh who was
accompanying her at the time of the
incident and to whom as is apparent
from the F.I.R. she told that she had
been shot and thereafter she had fallen
on
the
ground.
Since
she
was
conscious after being shot, in the
normal course of human conduct the
first thing which she would have told
her father-in-law was that it was the
appellant who had shot him but she
did not.

39. Upon perusal of the F.I.R.
Ext. Ka7 and the facts stated by P. W.
1 Mahabir Singh in his examinationin-chief, we find that there is force in
the submissions made by the learned
counsel for the appellant. If the
deceased had actually identified her
assailants she would have certainly
disclosed his name to her father-in-law
who had lodged the F.I.R. of the
incident and in that case the appellant
would have been named as an accused
therein.

40. Thus, in view of the foregoing
discussion, we find that the prosecution
has failed to prove its case against the
appellant beyond all reasonable doubts,
hence the appellant is entitled to benefit
of doubt. Neither the recorded conviction
of the appellant nor the sentence of life
imprisonment awarded to him can be
sustained. Accordingly the impugned
judgment and order are hereby set aside.
The appeal succeeds and is allowed. The
appellant is on bail. He need not
surrender. His bail bonds are cancelled
and the sureties are discharged. The
appellant shall however comply with the
mandatory provisions of Section 437-A of
the Cr.P.C.
----------
1 All. Prakash Vs. State of U.P.
1283
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2019

BEFORE
THE HON'BLE R.S.R. (MAURYA), J.
THE HON'BLE UMESH KUMAR, J.

CRIMINAL APPEAL No. 3609 OF 2015
Connected With

CRIMINAL APPEAL No. 1807 OF 2015

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

Counsel for the Appellant:
Sri Mangala Prasad Rai, Sri Rajiv Lochan
Shukla, Sri Sharangpani Vikramdhar Dw,
Sri Brijesh Sahai, Sri Bhavya Sahai.

Counsel for the Opposite Party:
A.G.A., Sri Avanish Kumar singh, Sri
Krishna Kumar Singh.

A. The Court may classify the oral
testimony into three categories, namely
(1) wholly reliable (2) wholly unreliable
and (3) neither wholly reliable, nor
wholly unreliable(Para 19). It will be
necessary for the Court to scrutinise the
testimony more particularly keeping in
consideration
the
deficiencies,
drawbacks and infirmities pointed out in
the evidence and to evaluate the same to
arrive at a conclusion. (Para 20)

Criminal Appeal allowed.

Chronological list of Cases Cited:-

1. Manjeet Singh Khera Versus State of
Maharashtra,
SPECIAL
LEAVE
PETITION
(CRIMINAL) NO.5897 OF 2013.

2.
V.K.
Sasikala
v.
State
Represented
by
Superintendent of Police (2012) 9 SCC 771 (E-2)

(Delivered by Hon'ble Umesh Kumar, J.)

1. These two criminal appeals have
been filed challenging the judgment and
order
dated
30.04.2015
passed
by
Additional Sessions Judge, Court No.3,
Fatehpur in S.T. No. 1185 of 2001 ( State
Vs. Ravi Karan and others) by which the
appellants have been convicted and
sentenced for life imprisonment and a fine
of Rs. 20,000/- each under Sections 302
read with Section 34 IPC and in default to
undergo 2 years R.I., and under Section
307 read with Section 34 IPC, to undergo
7 years R.I. and fine of Rs. 10,000/- each;
and in default to further undergo one year
R.I. All the sentences are directed to run
concurrently. The accused-Bhola died
during trial.

2. P.W.1 Shiv Prasad-informant has
given a written report at Police Station
Kishanpur district, Fatehpur alleging that
in the evening on 16.2.1992 at about 6.00
P.M. some altercation took place between
Moti Lal with Pitai Kumhar of his village;
his son Hira Lal and Awadesh intervened
and brought Moti Lal to the house. Soon
thereafter, Ravi Karan son of Ram Naresh
having Rifle, Prakash armed with DBBL
gun and Bhola having lathi in his hand
came abusing in front of the door of Moti
Lal; Moti Lal asked them not to abuse,
upon hearing the noise, the informant, his
son Suresh Chandra, sister-in-law ( wife
of Babu Lal), wife of Moti Lal, and Chiya
daughter of Moti Lal and Awadhesh
arrived and forbade them not to abuse, on
which, accused Bhola exhorted saying kill
them as their bullying has increased and
now they have started teasing their own
persons;
in
the
meantime,
accused
Prakash and Ravi Karan having Rifle and
gun in their hands fired on Moti Lal
which hit on his stomach; the wife of
Moti Lal-Sarla, his daughter Chiya and
informant's son Suresh Chandra and his