# Heera v. State of U.P

- **Citation:** (2024) 8 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-21
- **Case number:** Criminal Appeal No. 5306 of 2002
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-v-state-of-u-p-52301
- **Pages:** 8

## Headnote

Indian Penal Code, 1860 - Section 376 -
Rape - Evidence Act, 1872 - Section 3 -
Appreciation of evidence - One of the
witnesses of fact stated that he saw the
accused-appellant running towards the
forest while buttoning up his pant, and the
victim
was
lying
bleeding.
Medical
examination of the victim was conducted
within six and a half hours of the time of
the incident. In the medical examination
of the victim, no bleeding or injury, etc.,
was found. Neither any redness was seen,
nor any swelling was noticed by the
doctor in the private part of the victim,
and her hymen was found intact. Medical
report stated that the vagina admits the
tip of the finger. Supplementary report
stated that no spermatozoa was seen.
Held: At the tender age of six years, if the
victim is subjected to rape, some sort of
injury is bound to occur. Had there been
any bleeding, the doctor would not have
opined that the vagina admits the tip of
the finger. Opinion of the doctor that no
rape was committed was completely
ignored by the trial court. Victim merely
shook her neck while answering the
questions put to her. Possibility of the
minor victim having been tortured to
shake her neck instead of giving an oral
reply cannot be ruled out, particularly as a
girl of 5-6 years may ably answer the
questions put to her. Statements of
witnesses of fact, as well as the victim, do
not
corroborate
with
the
medical
evidence. Prosecution failed to prove the
charges of rape. (Para 17, 22, 24)

Allowed. (E-5)

List of Cases cited:

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES
Since the deceased was a minor child of six
years, any serious beating on him, leading
to his death, is bound to carry some signs
of injury. This is not the case as per the
medical
evidence.
The
contradiction,
therefore, remains unexplained. Similarly,
medical evidence shows cause of death to
be throttling with hyoid bone fractured but
the two witnesses of fact do not allege
anywhere that the deceased was throttled.
This
contradiction
also
remains
unexplained. In our opinion, the material
contradiction in the medical evidence viz-aviz the eye-witness account clearly creates
a doubt on the prosecution case. We do not
subscribe to the view taken by the Sessions
Court that these are aspects which could be
overlooked.

36. Hon'ble Supreme Court has dealt
with a similar issue in Viram @ Virma Vs.
The State of Madhya Pradesh, reported in
(2022) 1 SCC 341, wherein in Para 13, the
Court has observed as under:-

"13. The oral evidence discloses
that there was an indiscriminate attack by
the accused on the deceased and the other
injured eye-witnesses. As found by the
Courts below, there is a contradiction
between the oral testimony of the witnesses
and the medical evidence. In Amar Singh v.
State of Punjab (supra), this Court
examined
the
point
relating
to
inconsistencies between the oral evidence
and the medical opinion. The medical
report submitted therein established that
there were only contusions, abrasions and
fractures, but there was no incised wound
on the left knee of the deceased as alleged
by a witness. Therefore, the evidence of the
witness was found to be totally inconsistent
with the medical evidence and that would
be sufficient to discredit the entire
prosecution case"

37. We have already observed that the
ocular version of the incident is irreconcilable
with the medical evidence on record and the
inconsistency remains unexplained by the
prosecution. Once that be so, it cannot be said
that prosecution has succeeded in proving its
case beyond reasonable doubt. Consequently,
the applicant is entitled to get the benefit of
doubt.

38.

For
the
discussions
and
deliberations held above, we find that the
prosecution has not been able to establish its
case
beyond
reasonable
doubt.
The
conviction
and
consequential
sentence
awarded by the Court of Sessions, therefore,
cannot be sustained. The appeal consequently
succeeds and is allowed. The judgment and
order dated 4.2.2020, passed by the learned
Additional Sessions Judge, Court No. 8,
Mathura in Sessions Trial No. 477 of 2015,
arising out of Case Crime No. 188 of 2015,
under Section 304(1) IPC, Police Station -
Refinery, District - Mathura, is set aside.

39. The accused-appellant Rajendra
Yogi shall be set to liberty, forthwith, unless
he is wanted in any other case, subject to
compliance of Section 437A Cr.P.C.
----------
(2024) 8 ILRA 154
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5306 of 2002

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

Counsel for the Appellant:
8 All. Heera Vs. State of U.P.
155
Sri Rajiv Gupta, Sri Shyam Babu Vaish

Counsel for the Respondents:
D.G.A.

Indian Penal Code, 1860 - Section 376 -
Rape - Evidence Act, 1872 - Section 3 -
Appreciation of evidence - One of the
witnesses of fact stated that he saw the
accused-appellant running towards the
forest while buttoning up his pant, and the
victim
was
lying
bleeding.
Medical
examination of the victim was conducted
within six and a half hours of the time of
the incident. In the medical examination
of the victim, no bleeding or injury, etc.,
was found. Neither any redness was seen,
nor any swelling was noticed by the
doctor in the private part of the victim,
and her hymen was found intact. Medical
report stated that the vagina admits the
tip of the finger. Supplementary report
stated that no spermatozoa was seen.
Held: At the tender age of six years, if the
victim is subjected to rape, some sort of
injury is bound to occur. Had there been
any bleeding, the doctor would not have
opined that the vagina admits the tip of
the finger. Opinion of the doctor that no
rape was committed was completely
ignored by the trial court. Victim merely
shook her neck while answering the
questions put to her. Possibility of the
minor victim having been tortured to
shake her neck instead of giving an oral
reply cannot be ruled out, particularly as a
girl of 5-6 years may ably answer the
questions put to her. Statements of
witnesses of fact, as well as the victim, do
not
corroborate
with
the
medical
evidence. Prosecution failed to prove the
charges of rape. (Para 17, 22, 24)

Allowed. (E-5)

List of Cases cited:

1. Dola @ Dlagobinda Pradhan & anr. Vs St. of
Odisha reported in 2018 (18) SCC 695

2. Sadashiv Ramrao Hadbe Vs St. of Mah., 2007
(1) SCC (Cri.) 161
(Delivered by Hon'ble Dr. Justice Gautam
Chowdhary, J.)

1. By means of the instant appeal, the
accused-appellant Heera is assailing the
judgment and order of conviction dated
24.10.2002
passed
by
the
learned
Additional Sessions Judge (Fast Track )
Court Room No. 16, District Bulandshahr
in Sessions Trial No. 122 of 2002 (State
Vs. Heera) arising out of Case Crime No.
107 of 2001 whereby the accused-appellant
has been sentenced under Section 376
I.P.C. to undergo for life imprisonment
along with fine of Rs. 1000/- and in default
in payment of fine to further undergo
simple imprisonment of two years.

2. The prosecution case emanates on
the written report of the informant (exhibit
ka-1), as per which, on 31.03.2001 when
the informant had gone for work and his
wife Smt. Heera Devi had gone to jungle to
bring the fodder and his daughter aged
about 04 years was alone in the house,
while playing she went out of the house to
look for her mother, at about 06:00 P.M.,
when the accused-appellant enticed her
away and took her to the wheat field of
Isthtiaq Haji and committed rape upon her.
On hearing her cry, Gurcharan Singh son of
Mohar Singh and Durga Prasad son of Moti
Ram rushed towards the spot and saw that
the
accused-appellant
had
forcefully
pressed the victim and was committing
rape upon her. As soon as Gurucharan
Singh and Durga Prasad reached, the
accused appellant ran away towards the
forest. The trouser (Pajami) of the victim
was brought down and was soaked with
blood
and
the
victim
was
lying
unconscious. The informant and his wife
rushed to the place of occurrence and
brought back the victim. Upon such report,
the F.I.R. came to be lodged on 31.03.2001
156 INDIAN LAW REPORTS ALLAHABAD SERIES
in Case Crime No. 107 of 2001, under
Section 376 I.P.C. at Police Station
Jahangirabad, District Bulandshahr. The
matter was entrusted for investigation to
the Investigating Officer and the victim
was medically examined on 01.04.2001 at
about 12:30 A.M. Thereafter statements of
the witnesses including that of the victim
were recorded under Section 161 Cr.P.C.
and 164 Cr.P.C. The Investigating Officer,
after collecting evidence, culminated the
investigation in submission of charge sheet
against the accused-appellant under Section
376 I.P.C. upon which cognizance was
taken on 11.06.2001 by the concerned
Magistrate. The case was committed to the
Court of Sessions and the case was
registered as Sessions Trial No. 122 of
2002 (State Vs. Heera). Charge was framed
under Section 376 I.P.C., against the
accused-appellant. The accused-appellant
denied the charges and demanded trial.
Consequently, the trial commenced.

3. During trial, the prosecution has
relied
upon
following
documentary
evidence:-

"(i) Written report (Ex. Ka-1).

(ii) Medico Legal Examination
Report (Ex. Ka-2).

(iii)
Supplementary
Medical
Report (Ex. Ka-3).

(iv) Recovery memo of "Pajami"
G.D.entry (Ex. Ka-4)

(v) Site Plan with Index (Ex. Ka5).

(vi) Charge sheet original (Ex.
Ka-6).

(vii) F.I.R. Ka-7)

(viii) Site Plan (Ex. Ka-8)

(ix) Inquest report (Ex. Ka-9)."

4. From the side of prosecution, as
many as six prosecution witnesses appeared
before the trial Court. The P.W.1 is the
informant Vinnami, P.W.2 Durga Prasad,
P.W. 3 is victim, P.W.4 Gurcharan Singh,
P.W.5 Dr. Anita Dutta and P.W.6 S.I. Ram
Ji Lal, whereas no defence witness was
adduced.

5. The informant-P.W.1 has clearly
supported the prosecution case and has
repeated the F.I.R. version. In his crossexamination, it borne out that he did not go
to the place of occurrence and he saw the
victim unconscious at his house.

6. P.W.2 Durga Prasad, one of the
witnesses of fact has stated that he
alongwith Gurcharan were going towards
the jungle and as he reached near the wheat
field of Ishtiaq, he heard cry, on which he
went to that side where he saw that the
accused-appellant
ran
towards
forest
buttoning up his pant and the victim was
lying bleeding.

7. P.W.3 is the victim, who answered
to the questions merely by shaking her
neck. The testimony of the P.W.3 as has
been recorded before the trial Court, is as
under:-

नामः- "Victim" गवाह सवालो का जबाव हााँ
ना में गिटन डहला कर िेती है।

प्रश्नः-1 तुम्हारे पीछे कोन ख़िा है ?

उत्तर :- हीरा

प्रश्नः-2 क्या हीरा ने तुम्हे खाने के डलये डबस्कुट
डिया ?

उत्तरः- हााँ में गिटन डहलायी

प्रश्नः-3 हीरा क्या तुम्हे खेत पर ले गया था ?

उत्तरः- गिटन डहला कर हााँ में बताया।

प्रश्नः-4 क्या हीरा तुम्हारे गांव में रहता है ?

उत्तरः- गरिन डहला कर हााँ में उत्तर डिया।
8 All. Heera Vs. State of U.P.
157

प्रश्नः-5 हीरा ने खेत पर ले जाकर क्या तुम्हारे साथ
बुरा काम डकया ?

उत्तरः- हााँ में गिटन डहलायी।

प्रश्नः-6 जब हीरा बुरा काम कर रहा था तो तुम्हारे
कहां िुःख हुआ था?

उत्तरः- हाथ लगाकर पेशाब की जगह बतायी।

प्रश्नः-7 ििट होने पर तुम रोयी थी ?

उत्तरः- हााँ में गिटन डहलायी।

प्रश्नः-8 जहााँ ििट हुआ क्या खून आया था ?

उत्तर:- गवाह ने गिटन डहलाकर हााँ में जवाब डिया।

8. Another witness of fact, P.W.4
Gurcharan
Singh
also
adduced
his
testimony before the trial, who has
reiterated the similar version as has been
stated by P.W.2.

9. P.W.5 is Dr. Anita Dutta, who had
examined the victim. The doctor has
proved the medical reports. Relying upon
the medical papers, the doctor has stated
that there are no external or internal injury
on the victim and her hymen is intact. The
possibility of rape has not been supported
by the doctor. P.W.6 is the Sub-Inspector
Ramji Lal who is formal witnesses and has
supported the prosecution case, on the basis
of
evidence
collected
during
the
investigation.

10. The accused-appellant has been
confronted with the material evidence
adduced against him during the trial. His
statement under Section 313 Cr.P.C. came
to be recorded wherein he stated that he has
been falsely implicated and that the
evidence adduced is not reliable.

11. On the basis of the above material
produced during the trial, the Court of
Sessions has come to the conclusion that
the guilt of the accused appellant has
clearly been established beyond reasonable
doubt and consequently, the accusedappellant has been convicted and sentenced
as per the law.

12.

Challenging
the
impugned
judgement and order of conviction and
sentence against the accused appellant, Sri
Shyam Babu Vaish, learned counsel for the
accused-appellant, submits that the Court
of Sessions has erred in recording the
finding of conviction and sentence against
the appellant inasmuch as the testimony of
witnesses are not reliable and that the
accused-appellant
has
been
falsely
implicated. He further submits that the
victim did not sustain any internal or
external
injury
and
the
medical
examination as well as supplementary
medical report do not corroborate with the
prosecution
version.
Learned
counsel
further argued that perverse findings has
been recorded by the trial Court. Thus, the
impugned judgment and order is liable to
be set aside.

13. Per contra, learned A.G.A. has
submitted that offence has been committed
by the accused-appellant and the learned
trial Court, after considering the evidence
available on record, recorded the findings
of conviction and has sentenced the
accused-appellant
to
undergo
life
imprisonment,
therefore
there
is
no
illegality or perversity in the judgement and
order of conviction passed by the trial
Court and thus the impugned judgement
and order of conviction does not call for
any interference by this Court.

14. We have heard Sri Shyam Babu
Vaish learned counsel for the accusedappellant, Sri Pankaj Kumar Tripathi,
learned A.G.A. for the State and perused
the material on record including the
original record of the trial Court.
158 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The learned trial Court while
recording the findings of conviction has
observed though hymen is found intact but
according to the medical jurisprudence, in
the case of girl of less than 12 years, hymen
is posteriorly situated, which restricts the
gender (penis) to come in contact with
hymen thus it is natural that the hymen
would be intact even after the commission
of offence alleged furthermore, genital
injuries are such that the same cannot be
examined without giving anesthesia. The
learned
trial
Court
considering
the
testimony of witnesses of fact i.e. P.W. 2
Durga Prasad and P.W.4 Guru Charan
Singh has observed that their statements
corroborate each other and they are natural
witnesses.
Apart
from
the
aforesaid
statements,
learned
trial
Court
also
considered the testimony of the victim, who
appeared before the trial Court as P.W.3.
After considering the evidence adduced
before the trial Court, the learned trial
Court has convicted and awarded sentence
to
the
accused-appellant
for
life
imprisonment along with fine.

16. Before discussing the findings of
conviction recorded by the trial Court, it is
necessary to perused Section 375 I.P.C. in
which "Rape" has been defined which
reads as under:-

375. Rape-- A man is said to
commit "rape": if he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a women or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a women or makes her to do so with him
or any other person; or

(c) manipulates any part of the
body of a women so as to cause penetration
into the vagina, urethra, anus or any part of
the body of such women or make to do so
any other person; or

(d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person.

17. The statement of the victim
recorded before the trial Court as P.W.2
shows that merely she has shaken her neck
while answering the questions put to her,
which not entirely reliable. The possibility
of minor victim having been tortured to
shake her neck instead of giving oral reply
cannot be ruled out particularly as a girl of
5-6 years may ably answer the questions
put to her. There is nothing on record to
suggest that victim was incapacitated or
could not speak. The witness of fact P.W. 2
Durga Prasad has stated before the trial
Court that he rushed towards the direction
from where the sound of cry was coming
and on seeing him, the accused-appellant
ran away towards the forest buttoning his
pant and the victim was lying bleeding.
Similar version was also stated by P.W. 4
Gurucharan. In the medical examination of
the victim no bleeding or injury etc. is
however found.

18. So far as statements of witnesses
of fact are concerned, it is crystal clear after
seeing them, the accused-appellant ran
away towards the forest buttoning his pant
but it has not been specifically stated that
the accused-appellant was seen committing
rape upon the victim. "Rape" has been
defined under Section 375 I.P.C. which
specifically states that (a) penetrates his
penis, to any extent, into the vagina, mouth,
urethra or anus of a women or makes her to
do so with him or any other person; or (b)
inserts, to any extent, any object or a part of
8 All. Heera Vs. State of U.P.
159
the body, not being the penis, into the
vagina, the urethra or anus of a women or
makes her to do so with him or any other
person; or (c) manipulates any part of the
body of a women so as to cause penetration
into the vagina, urethra, anus or any part of
the body of such women or make to do so
any other person; or (d) applies his mouth
to the vagina, anus, urethra of a woman or
makes her to do so with him or any other
person, whereas no such ingredients of
Section 375 I.P.C. has been found in the
statement of the witnesses of fact.

19. So far as testimony of P.W.2
victim is concerned, it is necessary to take
note of the fact that she has merely shaken
her neck while answering the question put
to her. There is much inconsistencies in the
prosecution
version
and
the
cross
examination of the victim. While the FIR
speaks of the incident to have taken place
at 6.00 P.M. and the victim was allegedly
taken back home by the informant and his
wife, the victim in her cross examination
has stated that she went back home alone
and it was day time. The Apex Court in the
matter of Dola alias Dlagobinda Pradhan
and another Vs. State of Odisha reported
in 2018 (18) SCC 695 has reversed the
concurrent conviction in somewhat similar
circumstances observing that the testimony
of the victim is full of inconsistencies and
does not find support with the medical
evidence.

20. Now coming to the finding
recorded by the learned trial Court with
regard to the medical evidence. In the
instant case, the incident is said to have
taken place on 31.03.2001 at about 18:00
hours, whereas the medical examination of
the victim was conducted on 01.04.2001 at
about 12:30 A.M. i.e. within 06:30 hours
from the time of incident. The medical
examination report of the victim is as
under:-

"Certified that I have examined
Km. "X" d/o Vinami resident of Village
Jalilpur P.S.Jahangirabad B/I Constable CP
NO.
99
Rajendra
Sharma
P.S.
Jahangirabad, District Bulandshahr at 12:30
A.M. on 01.04.2001.

M.I. Colour of iris of eyes is
black.

G.E. She is fully conscious and
alert at the time of examination. Breast not
developed. Axillary and public hairs not
present.

No mark of injury on her body.

Height-97 c.m. weight 15 kg.,
Teeth 10/10 (milk teeth)

Internal Examination No mark of
injury on her private parts including lower
abdomen and inner part of both the thights.

Vagina admits tip of the finger.
Hymen intact.

Vagina smear made and sent to
pathologist for HPE to District Hospital
Bulandshahr.

Referred to Radiologist X-ray
department, District Hospital Bulandshahr
for X-Ray elbow and wrist joint (including
carpal bones) for age."

21. Pursuant to the recommendation
made
by
Medical
Officer
K.M.G.,
Bulandshahr
for
X-Ray
as
well
as
pathological
examination
before
the
Radiologist, the victim was examined, after
her examination, the supplementary report
was prepared on 12.04.2001, which reads
as under:-

"Supplementary report of "X"
daughter of Vinami resident of Jalilpur,
P.S. Jahangirabad, District Bulandshahr.

X-Ray Report No. 1543-44 dated
03.04.2001.
160 INDIAN LAW REPORTS ALLAHABAD SERIES

X-Ray Rt. Wrist AP view No.
1543 shows appearance of 4 carpal bones.
Capitate, Hamate cumeform and lunate
distal end of radius appeared but styloid of
ulna not appeared.

X-Ray Rt. Elbow joint No. 1544:-
Head of radius not appeared. Medial
epicondyle of humerus appeared.

Lateral epicondyle not appeared.

Pathology Report No. 23 of 2001
dated 03.04.2001.

No spermatozoa seen in the
supplied smear.

Conclusion (1) Her age is about
5-6 years.

(2) No opinion about rape can be
given"

22. So far as bleeding of victim is
concerned, the medical report states that the
vagina admits tip of the finger and also the
fact that supplementary report shows that
no spermatozoa was seen and therefore, no
medical evidence of rape is on record. The
medical examination of the victim was
conducted within six and half hours of the
time of incident and had there been any
such bleeding, the doctor would not have
opined that vagina admits tip of the finger.
The opinion of the doctor that no rape has
been committed has been completely
ignored by the trial Court. Thus the
testimony of P.W.2 and P.W.4 do not find
support from the medical evidence.

23. Although in Sadashiv Ramrao
Hadbe Vs. State of Maharastra, 2007 (1)
SCC (Cri.) 161 the Hon'ble Apex Court
has held that the sole testimony of
prosecutrix is sustainable if it inspires the
confidence of the Court but if the version
given by the prosecutrix is not supported by
the medical evidence or the whole
surrounding
circumstances
are
highly
improbable and belie the case set up by the
prosecutrix, the Court shall not act on the
solitary evidence of the prosecutrix. The
paragraph no. 9 of the aforesaid judgement
reads as under:-

"9. It is true that in a rape case the
accused could be convicted on the sole
testimony of the prosecutrix, if it is capable
of inspiring of confidence in the mind of
the court. If the version given by the
prosecutrix is unsupported by any medical
evidence
or
the
whole
surrounding
circumstances are highly improbable and
belie the case set up by the prosecutrix, the
court shall not act on the solitary evidence
of the prosecutrix. The courts shall be
extremely careful in accepting the sole
testimony of the prosecutrix when the
entire case is improbable and unlikely to
happen."

24. We have given our thoughtful
consideration to the evidence on record as
has been discussed in the preceding
paragraph
and
also
the
arguments
submitted by the learned counsel for the
parties. We find that the statements of
witnesses of fact as well as the victim do
not corroborate with the medical evidence.
The medical examination of the victim was
conducted within six and a half hours. The
specific case of the prosecution is that
sexual assault was committed upon the
victim. In our assessment at the tender age
of six years if the victim is subjected to
rape some sort of injury is bound to occur
and be reflected in the medical papers or
the testimony of doctor. The fact that
neither any redishness was seen nor any
swelling was noticed by the doctor in the
private part of the victim and her hymen
was found intact, coupled with the fact that
there are contradictions in the manner in
which the offence was observed by the
witnesses, we are of the considered opinion
8 All. Dilawar Singh Vs. State of U.P.
161
that the prosecution has failed to prove the
charges of rape levelled against him and
accused is entitled to benefit of doubt.

25. In view of the discussions and
deliberations held, this criminal appeal
succeeds and is allowed. The conviction
and sentence of the accused appellant
Heera vide judgment and order dated
24.10.2002
passed
by
the
learned
Additional Sessions Judge (Fast Track )
Court Room No. 16, District Bulandshahr
in Sessions Trial No. 122 of 2002 (State
Vs. Heera) arising out of Case Crime No.
107 of 2001 under Section 376 I.P.C.
Police
Station
Jahangirabad,
District
Bulandshahr, is set aside.

26. The accused-appellant shall be
released forthwith unless he is wanted in
any other case subject to compliance of
Section 437-A Cr.P.C.

27. The trial Court record along with
the copy of this order be transmitted to the
court concerned forthwith.
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(2024) 8 ILRA 161
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5591 of 2019
And
Criminal Appeal No. 5593 of 2019

Dilawar Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Noor Muhammad, Rajeev Malviya, Shashi
Dhar Pandey, Yogesh Kumar Srivastava

Counsel for the Respondent:
G.A.

Evidence Act, 1872 - Section 32 - Dying
Declaration
-
Admissibility
of
Dying
Declaration - Sole ground for conviction of
the appellants was the Dying Declaration
Held : Court held that in the instant case
Dying Declaration cannot be relied upon.
Dying Declaration had two endorsements
of the doctor one at the top and one at the
bottom. At both places, there was seal of
E.M.O., S.N.M. Hospital with initial of the
Doctor but the name of the doctor was not
mentioned in both the endorsement. On
the
top
and
bottom
of
the
Dying
Declaration doctor has used the word
"Dying
Declaration"
instead
of
"Statement"
show
that
those
endorsements were made subsequently
when the deceased died and that is why
the term "Dying Declaration" was used
instead of "Statement". Doctor has stated
that the victim was fully conscious and
can give her Dying Declaration. On the
bottom, again the doctor stated that
during recording of the Dying Declaration
she was conscious. In ordinary course,
the doctor gives an opinion that the victim
is in the fit state of mind to get her
statement
recorded.
In
both
the
endorsements, the Doctor has not given
any opinion that the victim was in a fit
state of mind to get her statement
recorded and it is only stated that she is
conscious to give her dying declaration. In
the absence of any specific opinion by the
doctor that the victim is in fit mental state
to
give
the
statement,
the
Dying
Declaration become highly suspicious.
Doctor has not recorded his satisfaction by
asking some preliminary questions that
the victim was in a fit mental condition to
make her statement. There was no
endorsement
by
doctor
that
after
recording the dying declaration, he has
read over the same to the victim and after
understanding the same, she has put her
thumb impression.Doctor who made the