# Manjoor Alam @ Nirahu (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-16
- **Case number:** Criminal Appeal No. 2126 of 2013
- **Bench:** Ashwani Kumar Mishra, Shiv Shankar Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manjoor-alam-nirahu-in-jail-v-state-of-u-p-48049
- **Pages:** 14

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 162, 162(2), 313 &
437 (A) - Indian Penal Code, 1860 -
Sections 302, 307, 308 & 326 - India
Evidence Act, 1872 - Sections 32 & 32(1)
- Criminal Appeal - challenging the order of
Conviction & Sentence of Life Imprisonment -
allegations upon accused-appellant that on
account of enmity had thrown acid upon the
deceased which caused serious injuries to him
resulted he was died during treatment -
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
825
Evaluation of Evidence - Trial court relied upon
the St.ment of PW-2 (wife of deceased who was
sleeping with deceased husband on the date of
incident) - Court finds that, there were no
independence or credible witnesses who have
seen the incident and alleged St.ment of
deceased is not corroborated as neither the
alleged motive is proved nor the testimony of
eye-witnesses is found credible and reliable -
mere recovery of burnt clothes or plastic bottle
etc would not be sufficient to prove the cause
of injury commissioned by accused - Appeal
succeeds and is allowed - impugned order is set
aside - appellant be set to liberty, forthwith,
subject to compliance of section - 437A
Cr.P.C.(Para - 12, 26, 31, 32)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

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824 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and incapable of explanation or
any other reasonable hypothesis".

59. We have no hesitation to hold that
the principle enumerated in the aforesaid
case law is clearly applicable to the present
case and no error was committed by the
learned trial court to convict the appellants
with the aid of Section 34 IPC.

60. The evidence of PW-1 and PW-2
is wholly reliable and cogent and they fall
into the category of wholly reliable witness.
The date, time and place of occurrence, the
manner of assault, the names of assailants
all these factors have been fully proved by
the ocular evidence which finds support
from the medical evidence. F.I.R. of the
case is also prompt. We are, therefore, of
the considered opinion that the prosecution
has proved the charge under Section 302/34
IPC beyond reasonable doubt against both
accused, namely, Tahar Singh and Bal
Krishna but charge under Sections 307/34
IPC has not been proved on the basis of
evidence on record, instead, charge under
Section 324/34 IPC is proved against the
present
appellants
beyond
reasonable
doubt.

61. Resultantly, appeal is partly
allowed in the aforesaid terms. The
conviction and sentence under Section
302/34 is hereby confirmed and the
conviction and sentence under Section
307/34 I.P.C. is converted into Section
324/34
IPC
and
the
appellants
are
sentenced to undergo imprisonment for a
period of three years for the offence
punishable under Sections 324/34 of IPC.
Both the sentences are to run concurrently.

62. Appellants Tahar Singh and Bal
Krishna are on bail, their bail bonds are
cancelled and sureties are discharged. The
concerned Court is directed to take the
appellants Tahar Singh and Bal Krishna
into custody forthwith and send them to jail
to serve-out the remaining sentence.

63. Let the lower Court record be
transmitted back along with the certified
copy of this judgement for information and
necessary compliance.

64. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 12 ILRA 824
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKAR PRASAD, J.

Criminal Appeal No. 2126 of 2013

Manjoor Alam @ Nirahu
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri B.K. Tripathi, Sri Araf Khan, Sri
Mohammad Adnanul Haq, Sri Pradeep
Kumar

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 162, 162(2), 313 &
437 (A) - Indian Penal Code, 1860 -
Sections 302, 307, 308 & 326 - India
Evidence Act, 1872 - Sections 32 & 32(1)
- Criminal Appeal - challenging the order of
Conviction & Sentence of Life Imprisonment -
allegations upon accused-appellant that on
account of enmity had thrown acid upon the
deceased which caused serious injuries to him
resulted he was died during treatment -
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
825
Evaluation of Evidence - Trial court relied upon
the St.ment of PW-2 (wife of deceased who was
sleeping with deceased husband on the date of
incident) - Court finds that, there were no
independence or credible witnesses who have
seen the incident and alleged St.ment of
deceased is not corroborated as neither the
alleged motive is proved nor the testimony of
eye-witnesses is found credible and reliable -
mere recovery of burnt clothes or plastic bottle
etc would not be sufficient to prove the cause
of injury commissioned by accused - Appeal
succeeds and is allowed - impugned order is set
aside - appellant be set to liberty, forthwith,
subject to compliance of section - 437A
Cr.P.C.(Para - 12, 26, 31, 32)

Appeal Allowed. (E-11)

List of Cases cited:

1. Kamal Khudal Vs St. of Assam (2022 SCC Online
SC 882),

2. Arvind Bajpai Vs St. of U.P. (Jail Appeal No.
3231/2015 decided on 01.10..2019),

3. Samsul Haque Vs The St. of Assam (AIR 2019 Sc
4163).

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is by the accused
Manjoor Alam @ Nirahu challenging his
conviction in Sessions Trial No. 8 of 2009
arising out of Case Crime No. 796 of 2008,
under Section 302 IPC, Police Station
Kolhui, District Maharajganj; whereby he
has been sentenced to rigorous life
imprisonment
alongwith
fine
of
Rs.
10000/- and on its failure to undergo
further incarceration of two years.

2. The prosecution case proceeds on a
written report dated 11.9.2008 (Exhibit Ka1) by the informant (PW-1), who happens
to be the father of the deceased, stating that
he is a resident of District Maharajganj and
his son Ramjan has returned about a month
ago from Saudi and was sleeping with his
wife Noorjahan (PW-2) on the roof. On
6.9.2008 at about 10.00 in the night the
accused appellant who was residing at
Bahduri on rent, on account of enmity
came on the roof and threw acid on his son
and daughter-in-law. The injured son was
taken to Gorakhpur for treatment and the
doctors have referred him for further
treatment to Delhi where he is admitted and
undergoing treatment. The son of the
informant was not in a position to speak
and the daughter-in-law (PW-2) who had
sustained lesser injuries is being treated by
doctor Maurya. Having returned from
Delhi the report has been lodged with the
request to take appropriate action. On the
basis of the above report the first
information report got registered as Case
Crime No. 796 of 2008 at 8.35 pm on
11.9.2008.

3. The investigation proceeded and a
plastic bottle used for throwing acid
together with certain acid burnt clothes
(Lungi and Odhani) were recovered vide
Exhibit Ka-8 on 2.11.2008. After nearly
three months of the incident the injured son
of the informant died on 15.12.2008 at
about 8.00 pm and an intimation of such
fact was given to the Investigating Officer
on 16.12.2008.

4. Initially the FIR was lodged under
section 308 and 326 IPC but after the death
of injured the offence was altered to one
under Section 302 IPC. It may also be
noticed that the offence under Section 308
IPC was also altered to Section 307 IPC
during the course of investigation. The
Investigating Officer proceeded in the
matter and collected medico legal case
sheet cover as also the summary prepared
by the Medical College at Gorakhpur. The
826 INDIAN LAW REPORTS ALLAHABAD SERIES
case sheet shows that the injured was
admitted at the Medical College at
Gorakhpur on 7.9.2008 at 1.45 am and
doctor has mentioned it to be a case of burn
injury. The informant had informed the
doctor that someone had thrown acid on the
son of the informant while he was sleeping
at about 11.00 pm. To similar effect is the
document at Page 9 of the paper book
wherein the doctor has recorded that it is a
case of acid burn where acid was thrown by
someone at around 11.00 pm on 6.9.2008
while the patient was sleeping. The
Investigation ultimately concluded with
submission
of
chargesheet
(Ex.Ka-9)
against
the
accused
appellant.
The
implication of the accused appellant
apparently surfaced on the basis of
statement made by PW-2 and PW-1 who
stated that the acid has been thrown on the
deceased by the accused appellant.

5. The Magistrate took cognizance
upon the charge-sheet and committed the
case to the Court of Sessions wherein
charges were framed against the accused
appellant under Section 302 IPC. The
accused appellant denied the accusations
made against him and demanded trial. The
trial accordingly commenced in which
prosecution has produced three witnesses
of
fact
namely
Noor
Ali
(PW-1)
(informant/father
of
the
deceased);
Noorjahan (PW-2) (wife of the deceased)
and PW-3 Hamid, who happens to be the
father of PW-2 and lives in an adjoining
house but was sleeping next to PW-1 at the
time of occurrence.

6. PW-1 in his statement has clearly
stated that on the fateful night the deceased
was sleeping with his wife (PW-2) on the
roof of the house when the accused
appellant on account of prior enmity came
on the roof and threw acid on his son and
daughter-in-law. The injured and his wife
screamed on hearing of which PW-1 claims
to have opened his torch and saw in the
torch light the accused appellant fleeing.
He also shouted to apprehend him but the
accused appellant fled. He has further
stated that PW-3 had also come to his
house and was sleeping next to him. Both
these witnesses namely PW-1 and PW-3
however saw the accused appellant fleeing
from the place by the staircase in the torch
light. The condition of injured was critical
who was taken to Gorakhpur from where
he was referred to Delhi and was admitted
in AIIMS and he was not in a position to
speak. He has further specified that on
account of acid attack the injured had
sustained injuries on his chest, back, hands,
face, nose and ears and it was on account of
such injuries that he ultimately died. He has
also verified recovery made by the
Investigating Officer. The witness PW-1
was again recalled and he stated that he had
not seen the accused appellant going on the
roof through the staircase and there was no
light on the staircase. He also claimed that
his daughter-in-law (PW-2) had also
sustained burn injuries at 3-4 places. She
also informed him that it was the accused
appellant who had thrown acid on the
deceased.

7. In the cross examination PW-1 has
stated that in his statement under Section
161 Cr.P.C. he has not disclosed about
recognizing the accused appellant in the
torch light. He has admitted that in the FIR
there is no reference of recognizing the
accused appellant in the torch light. He has
further stated that the torch has neither been
recovered nor any recovery memo has been
prepared in respect of the torch and even
the description of the torch cannot be given
by him as the torch was from Saudi. The
torch has also not been produced before the
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
827
Court nor was it recovered by the
Investigating Officer. He has disclosed that
he is above 75 years of age and he uses
specs and he can at best see upto a distance
of 10 ft. He has stated that on hearing the
screams of his son and daughter-in-law, he
saw the accused appellant fleeing from the
spot and was seen from behind in torch
light by him. In the statement under Section
161 Cr.P.C., however, the version of PW-1
seeing the accused appellant fleeing after
committing the offence in torch light has
not been disclosed to the Investigating
Officer. He has also stated about enmity
between the accused appellant and his
family but such enmity has not been
substantiated nor any incident or event
which
caused
the
enmity
has
been
disclosed. In the cross examination PW-1
has also stated that there was no dispute
relating to landed property between him
and the accused appellant and there was no
enmity between them either. He has
however stated that he was not on talking
terms with the accused appellant nor the
accused appellant was on talking terms
with the deceased. He has also denied the
suggestion that on account of the deceased
living out of country he was not treated
well by his daughter-in-law or their
relations were not cordial or that his
daughter-in-law had illicit relations with
someone else due to which the incident
occurred.

8. PW-2 is the wife of the deceased
who has supported the prosecution case and
has clearly stated that she was sleeping
alongwith her husband on the roof of the
house when accused appellant came
through the staircase at about 10.00 in the
night and due to enmity threw acid upon
the deceased. In the cross-examination she
has explained the circumstances in detail.
She has stated that she went to sleep on the
fateful night at about 10.00 and at the time
when she went on the roof it was dark and
there was no light. The deceased and the
PW-2 were sleeping close-by but were
facing different directions. She claims that
she identified the accused appellant as
being the person who had thrown acid upon
her husband. In the same breath she has
stated that she had not seen the acid being
thrown and she started screaming. The
accused appellant allegedly left by the
same staircase and it was about five
minutes after her screaming that her father
and father-in-law (PW-3 and PW-1) came
on the roof with the torch. She has clearly
stated that by the time her father-in-law
(PW-1) came on the roof the accused had
already fled. She has also stated that there
was enmity between the accused appellant
and her family. The witness, however, has
stated that the relations between the
accused appellant and her family were not
cordial and that she had never talked to the
accused appellant nor had even met him.
She has even denied having seen the
accused appellant earlier or recognizing
him. Although PW-2 claims to have
sustained burn injuries but no proof in the
form of injury report or doctor's opinion
has been placed on record.

9. PW-3 has also supported the
prosecution story but has clearly stated in
the cross-examination that he never met the
accused appellant nor had ever talked to
him. He has further denied the suggestion
that the accused appellant had any relations
with his family or that his daughter had any
relations with the accused. He has,
however, not claimed to have seen the
accused appellant at the place of incident
himself.

10. PW-4 Sahadul and PW-5
Sadavriksh have proved the inquest report.
828 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-6 is the Constable, who has proved the
chick FIR. PW-7 is also an inquest witness.
He has stated that the injured/deceased had
informed him that someone had thrown
acid upon him and has not alleged that such
role was assigned to the accused appellant
by the deceased. Dr. D.C. Pandey has
appeared as PW-8, is autopsy surgeon and
has proved the postmortem report. He has
stated that the burn injuries caused to the
deceased were not sufficient to cause death
and that his death ultimately occurred on
account of septicemia, as there was lack of
proper treatment for the deceased.

11. Before proceeding further it may
be worth noticing that the incident occurred
on 6.9.2008 and the Investigating Officer
also recorded the statement of the deceased
under Section 161 Cr.P.C. on 29.9.2008. In
his statement under Section 161 Cr.P.C. the
deceased has stated that he had gone to
sleep at about 10.00 when accused
appellant Manjoor Alam, who lives in a
rented accommodation at Bahduri, due to
enmity came on the roof where he was
sleeping and threw acid on him and his
wife. Though the deceased remained alive
for nearly 2 and half months thereafter but
his dying declaration was never recorded.
Incriminating material collected during the
course of trial against the accused appellant
were specifically confronted to him which
he denied but the incriminating material in
the form of statement of deceased under
Section
161
Cr.P.C.
implicating
the
appellant was never put to him and he was
not confronted with such incriminating
material.

12. The trial court on the basis of oral
and documentary evidence placed on
record by the prosecution came to the
conclusion that the accused appellant on
account of enmity had thrown acid upon
the deceased which caused serious burn
injuries to him and that due to it the injured
died. For the purposes of arriving at a
finding of guilt against the accused
appellant the court below has essentially
relied upon the statement of PW-2, who is
said to have seen the occurrence. Her
presence next to her husband while they
were about to go to sleep is not doubted.

13. Sri Araf Khan, learned counsel for
the appellant submits that the appellant has
been falsely implicated in the present case,
inasmuch as, the prosecution witnesses
although have asserted that there was
enmity between the accused appellant and
the family of the informant, yet no material
or cause of such enmity has been
substantiated and, therefore, the first
submission raised on behalf of the
appellant is that there is absolutely no
motive for the accused appellant to commit
the offence. Learned counsel further
submits that though PW-1 claims to have
seen the accused appellant fleeing through
the staircase in the torch light, but such
testimony is not believable, inasmuch as,
neither any source of light has been
substantiated during the course of trial nor
at such old age was it otherwise plausible
to come to the roof so quickly. It is also
argued that PW-2 has clearly stated that
PW-1 reached the roof nearly 5 minutes
after she screamed and that the accused
appellant had already fled by then. So far as
the statement of PW-2 is concerned, it is
stated that she has clearly admitted in her
cross-examination that she had neither met
the accused appellant nor recognized him
and as she otherwise has admitted that there
was no light at the place of occurrence her
statement that she could identify the
accused appellant as being the person who
threw acid on the deceased is not
believable. Learned counsel also submits
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
829
that no test identification parade was
otherwise conducted to ascertain the
identity of the accused appellant.

14. Learned counsel for the appellant
submits that the accused appellant has been
implicated only on the basis of suspicion
that there was affair between the wife of
the deceased and the accused and that such
suspicion, howsoever strong, cannot take
the shape of evidence so as to convict the
accused appellant.

15. Ms. Meena, learned AGA, on the
other hand states that the statement of eyewitness PW-2 is absolutely credible and her
presence near her husband could not be
doubted and being a distant relative the
identification by her of accused appellant
cannot be doubted. She further submits that
the medico legal examination report clearly
shows that the deceased died due to burn
injuries caused by the accused appellant
and since there was a definite motive for
him to commit such offence the conviction
of the accused appellant as also his
sentence is clearly based on the evidence
available on record which warrants no
interference.

16. At the very outset we may note
that the accused appellant pursuant to his
implication in the present case was arrested
on 22.10.2008 and has remained in jail ever
since then. The appellant, therefore, has
undergone actual sentence of nearly 14
years. The accused appellant otherwise has
no criminal history.

17. The implication of the accused
appellant has surfaced on the basis of
written report of PW-1 in which it is
alleged that while the deceased had gone on
the roof alongwith his wife to sleep the
accused appellant threw acid upon him due
to enmity and on account of such injuries
sustained
on
6.9.2008
he
died
on
15.12.2008. The prosecution case is that
there was an enmity between the accused
appellant and the family of the informant
and the prosecution witnesses PW-1 and
PW-2 have clearly supported the plea of
enmity between accused appellant and the
family of the informant. However, we find
on a careful perusal of the evidence brought
on record that except for allegation made
by the prosecution witnesses with regard to
enmity between them no specific instance
or exact motive/reason of such enmity has
been
substantiated
on
record.
PW-1
although has stated that there was an
enmity between his family and the accused
appellant, but in the cross-examination he
has clearly admitted that there was no
dispute between them with regard to landed
property and has rather gone to the extent
of saying that there was no prior enmity
between them. Similarly PW-2 has also
stated that there was enmity between the
parties but no exact cause of enmity has
been disclosed or substantiated by her
either. No other material in the form of
documentary evidence has otherwise been
placed on record by the prosecution to
substantiate the plea of enmity between the
parties. In such circumstances, we find
substance in the contention advanced on
behalf of the appellant that the plea of
enmity,
set
up
as
a
ground
for
commissioning of offence, by the accused
appellant has not been substantiated on
record. In its absence the motive for the
alleged commissioning of offence on part
of the accused appellant has not been
proved by the prosecution.

18. From the suggestions given to
PW-3, it appears that the prosecution has
suggested that there was some relationship
between the accused appellant and PW-2,
830 INDIAN LAW REPORTS ALLAHABAD SERIES
since her husband was living abroad, but
this suggestion has also been denied and no
other material in the form of positive
evidence
has
been
placed
by
the
prosecution to demonstrate that on account
of his living abroad his wife (PW-2) had
developed relations with the accused
appellant. In such circumstances, the plea
of there being relations between PW-2 and
the accused appellant remains only in the
nature of doubt or suspicion and such
material
cannot
be
a
substitute
for
evidence, which alone could be relied upon
to implicate the accused appellant.

19. The present case nonetheless is of
direct evidence and in case the prosecution is
able to prove it the lack of motive may not be
of much substance. In such circumstances,
the Court is required to examine the
evidentiary value of the statements of PW-1,
PW-2 and PW-3 who are the witnesses of
fact and have supported the prosecution story.
So far as PW-1 is concerned, he has clearly
admitted that he had not seen the accused
appellant alighting the staircase to the roof
and that there was no light on the staircase
either. The incident is admitted to have
occurred in the darkness of night while the
deceased had gone to sleep alongwith his
wife. The implication of accused appellant in
the testimony of PW-1 is based upon his
statement that having heard screams of his
son and daughter-in-law he rushed and saw
the accused appellant fleeing from behind in
the torch light. In order to prove such
assertion the first evidence which is required
to be proved by the prosecution is the
existence of light in which the prosecution
witnesses PW-1 allegedly saw the accused
appellant from behind. In the statement
before the Court such source of light is
alleged to be a torch brought by the deceased
from Saudi and in which the incident was
seen by PW-1. Admittedly no such torch has
been recovered by the police nor has been
produced before the Court by PW-1. We
further find that such assertion has otherwise
not been made in the FIR. PW-1 has stated
that he did tell about the torch light but the
scribe omitted to mention it. We further find
that even in the statement made to the police
under Section 161 Cr.P.C., PW-1 has not
narrated about existence of torch light in
which he claims to have seen the accused
appellant
fleeing
from
the
place
of
occurrence. The plea with regard to torch
light is, therefore, taken for the first time at
the stage of trial. Existence of light was one
of the crucial aspects which had to be proved
by the prosecution before the statement of
PW-1 of having seen the accused appellant
fleeing from the place of occurrence could be
relied upon. The fact that such source of light
has not been substantiated by either
recovering the torch; preparing a recovery
memo and producing the torch clearly casts a
dent on the prosecution case. We may at this
stage
refer
to
the
statement
of
the
Investigating Officer who appeared as PW-9
S.I. Umashankar Yadav who has stated that
neither possession of torch was taken nor any
of the witnesses had informed him about
seeing the accused appellant or identifying
him in torch light. The statement of PW-9, in
that regard, is relevant and is reproduced
hereinafter:-

^^eSus dksbZ VkpZ dCtk iqfyl xokgku
ls ugha fy;k Fkk uk fdlh ls xokg us ?kVuk dks
VkpZ ls ns[kus dh ckr o VkpZ dh jks'kuh esa
eqyfte dks igpkuus dh ckrsa crkbZ gSaA

izFke lwpuk fjiksVZ esa eqfYte dks VkpZ
dh jks'kuh esa ?kVukLFky ;k ?kVuk dkfjr ns[kus
ckr ugh crk;k u gh Hkkxrs gq, VkpZ dh jks'kuh
esa igpkuus dh ckr vk;h gSA^^

20. PW-2 is the star witness of the
prosecution case who claims to have seen the
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
831
accused appellant throwing acid on her
husband. She has admitted that the incident is
of about 10.00 pm and that neither on the
staircase nor at the place of occurrence there
was any light. She has further admitted that
while lying nearby her husband she was
facing in a different direction from the
direction of her husband. She has stated that
there existed a staircase from outside the
house by which the accused appellant came
on the roof and she recognized the accused
appellant while throwing the acid. In the very
next sentence PW-2 has however stated that
when the accused appellant threw acid she
could not see it nor could see as to what was
worn by the accused appellant and she started
screaming. She has stated that accused
appellant fled from the same staircase and her
father-in-law and father (PW-1 and PW-3)
came on the roof with the torch nearly five
minutes after her screaming. She has also
categorically stated that by the time her
father-in-law came on the roof the accused
appellant had already fled. It has otherwise
been noticed that PW-2 in the crossexamination has clearly stated that relations
between her family and that of the accused
appellant were not good and she had never
spoken to the accused appellant nor had met
him. She has further admitted that neither she
had
seen
the
accused
appellant
nor
recognized him. The statement of PW-2,
made in the cross-examination is reproduced
hereinafter:-

^^eqfYte ls eSa dHkh feyh tqyh ugha
D;ksafd muds ?kj ls esjs ?kj ds lEcU/k vPNs ugha
gSA eqfYte us dHkh eq>ls ckrphr ugha fd;k Fkk
u feyk tqyk FkkA eqfYte vkt rd eq>ls dHkh
u feyk u ckrphr fd;k u eS gh mlls dHkh
feyhA eqfYte ls esjh dksbZ fe=rk ugha gS dksbZ
tku igpku ugh gSaA iqfyl us ;k fdlh Hkh
O;fDr us eqfYte dh eq>ls tku igpku ugha
djk;hA eqfYte dks eSaus dHkh u ns[kk u
igpkukA^^

21. In the backdrop of the fact that
there was otherwise no source of light on
the roof top, we find it difficult to accept
the testimony of PW-2 that she saw the
accused appellant committing the offence,
particularly when she admits that she had
neither seen the accused appellant earlier,
nor recognized him.

22. Although, learned AGA has laid
much emphasis on the fact that PW-2 in the
examination-in-chief has supported the
prosecution case of having seen the
accused appellant committing the offence
and his being a distant relative (pattidar)
but we find that PW-2 has not been put to
further examination by the prosecution on
this aspect of the matter, particularly after
she stated that she had not seen the accused
appellant earlier or recognized him. The
prosecution having failed to confront PW-2
on this aspect of the matter cannot be heard
now to state that the statement of PW-2
made at the time of examination-in-chief be
relied upon, by overlooking the statement
made by her in the cross-examination,
which
goes
contrary
to
the
earlier
statement.

23. Similarly PW-3 has reached the
roof top alongwith PW-1 and has not seen
the occurrence or the alleged fleeing of
accused appellant in the torch light. PW-3
has merely stated that he reached the roof
and saw his daughter and son-in-law
screaming. He, therefore, admits that he has
not seen the throwing of acid by the
appellant on the deceased. When we notice
the statements of witnesses of fact PW-1,
PW-2 and PW-3 cumulatively, we find that
the prosecution version that accused
appellant had thrown acid upon the
deceased is clearly not substantiated. PW-3
moreover has stated that he neither knew
the accused appellant nor recognized him.
832 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The last arguments advanced by
learned AGA is with regard to the
statement of the deceased, made to the
police, under Section 161 Cr.P.C. being
treated as dying declaration. Record reveals
that the alleged statement to the police was
made by the injured deceased on 29.9.2008
and it is after nearly two and half months
that the injured died. The statement of the
deceased under Section 161 Cr.P.C.,
therefore, cannot be treated to be a
statement made just before his death. It is
only when the statement is made just before
his death that the statement is entitled to
weight in view of Section 32 of the Indian
Evidence Act, 1872.

25. As the person making the
statement under Section 161 Cr.P.C. has
not signed the statement and otherwise
there is neither any certification by the
doctor that the deceased was in a fit state of
mind to make the statement nor is it made
before the Magistrate, as is the case in a
written dying declaration, the oral dying
declaration made to police under Section
161 Cr.P.C., would have to be subjected to
careful scrutiny and corroboration before
such statement could be relied upon. Law
on the subject of oral dying declaration has
recently been examined by the Supreme
Court in Kamal Khudal Vs. State of Assam,
2022 SCC OnLine SC 882, wherein the
Court observed as under in Paragraphs 21
and 22:-

"21. The law regarding the
nature, scope and value as a piece of
evidence of oral and written dying
declarations is now fairly well settled by
various judicial decisions of this Court. A
dying declaration, oral or written, before it
could be relied upon, must pass a test of
reliability as it is a statement made in the
absence of the accused and there is no
opportunity to the accused even to put it
through the fire of cross examination to test
is genuinity or veracity. The court has,
therefore, to subject it to close scrutiny. But
once the court is satisfied that it is a truthful
version as to the circumstances in which
the death resulted and the persons causing
injuries, the law does not expect that there
should be corroboration before it can be
relied
upon.
However,
if
there
are
infirmities and the court does not find it
safe to base any conclusion on it without
some further evidence to support it, the
question of corroboration arises.

22. We may refer to one of the
decisions of this Court in the case of
Heikrujam Chaoba Singh v. State of
Manipur, (1999) 8 SCC 458, wherein in
para 3 this Court observed as under:

"3. An oral dying declaration no
doubt can form the basis of conviction,
though the Courts seek for corroboration as
a rule of prudence. But before the said
declaration can be acted upon, the Court
must be satisfied about the truthfulness of
the same and that the said declaration was
made by the deceased while he was in a fit
condition to make the statement. The dying
declaration has to be taken as a whole and
the witness who deposes about such oral
declaration to him must pass the scrutiny of
reliability. ...""

26. In the present case the injured
died almost after two and half months due
to septicemia. It cannot be said that the
author of the statement was aware that he is
likely to die soon which is the necessary
condition for attaching credibility to the
statement of the person itself on the
premise that the person about to die would
not go with falsehood in his mouth. There
are otherwise no independent or credible
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
833
witnesses who have seen the recording of
statement by the Investigating Officer of
the alleged disclosure made by the
deceased.

27. Learned counsel for the appellant
has placed reliance upon a Division Bench
Judgment of this Court in Arvind Bajpai
Vs. State of U.P., Jail Appeal No. 3231 of
2015, dated 1.10.2019, wherein Paragraph
115 of Police Regulations has been noticed,
which
provides
that
the
officer
investigating a case in which a person has
been so seriously injured that he is likely to
die before he can reach a dispensary, where
his dying declaration can be recorded,
should himself record the declaration at
once in the presence of two respectable
witnesses. The Court has opined that non
observance of paragraph 115 would be a
material
circumstance.
After
noticing
Section 32 of the Indian Evidence Act the
Court has adverted to the evidentiary value
of a statement made under Section 161
Cr.P.C. in following words:-

"31. As far as implication of 162
(2) of Cr.P.C. is concerned, as a proposition
of law, unlike the excepted circumstances
under which 161 statement could be relied
upon, as rightly contended by learned
senior counsel for the respondent, once the
said statement though recorded under
Section 161Cr.P.C. assumes the character
of dying declaration falling within the four
corners of Section 32(1) of Act, 1872, then
whatever credence would apply to a
declaration governed by Section 32(1),
should automatically deemed to apply with
all force to such a statement though
recorded under Section 161 Cr.P.C. The
above statement of law would result in a
position
that
a
purported
recorded
statement under Section 161 Cr.P.C. of a
victim having regard to the subsequent
event of death of the person making
statement who was a victim would enable
prosecuting authority to rely upon the said
statement having regard to the nature and
content of the said statement as one of
dying declaration as deeming it and falling
under Section 32(1) of Act, 1872 and
thereby commend all the credence that
would be applicable to a dying declaration
recorded and claimed as such.

32. We now propose to deal the
validity of the dying declaration. Court in
Paniben vs. State of Gujarat, (1992) 2 SCC
474, laid down certain principles regarding
dying declaration, which are as under :-

"Though a dying declaration is
entitled to great weight, it is worthwhile to
note that the accused has no power of
cross-examination.
Such
a
power
is
essential for eliciting the truth as an
obligation of oath could be. This is the
reason the Court also insists that the dying
declaration should be of such a nature as to
inspire full confidence of the Court in its
correctness. The Court has to be on guard
that the statement of deceased was not as a
result of either tutoring, prompting or a
product of imagination. The Court must be
further satisfied that the deceased was in a
fit state of mind after a clear opportunity to
observe and identify the assailants. Once
the Court is satisfied that the declaration
was true and voluntary, undoubtedly, it can
base its conviction without any further
corroboration. It cannot be laid down as an
absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The
rule requiring corroboration is merely a
rule of prudence. this Court has laid down
in
several
judgments
the
principles
governing dying declaration, which could
be summed up as under:-
834 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) There is neither rule of law nor
of prudence that dying declaration cannot
be acted upon without corroboration.
(Mannu Raja v. State of M.P.).

(ii) If the Court is satisfied that
the dying declaration is true and voluntary
it can base conviction on it, without
corroboration. (State of M.P. v. Ram Sugar
Yadav, Ramawati Devi vs. State of Bihar).

(iii) This Court has to scrutinise
the dying declaration carefully and must
ensure that the declaration is not the result
of tutoring, prompting or imagination. The
deceased had opportunity to observe and
identify the assailants and was in a fit state
to make the declaration. (Ram Chandra
Reddy v. Public Prosecutor).

(iv) Where dying declaration is
suspicious it should not be acted upon
without corroborative evidence. (Rasheed
Beg v. State of Madhya Pradesh).

(v) Where the deceased was
unconscious and could never make any
dying declaration the evidence with regard
to it is to be rejected. (Kake Singh v. State
of M.P).

(vi) A dying declaration which
suffers from infirmity cannot form the basis of
conviction. (Ram Manorath v. State of U.P.).

(vii) Merely because a dying
declaration does not contain the details as
to the occurrence, it is not to be rejected.
(State of Maharashtra v. Krishnamurthi
Laxmipati Naidu).

(viii) Equally, merely because it
is a brief statement, it is not be discarded.
On the contrary, the shortness of the
statement itself guarantees truth. (Surajdeo
Oza v. State of Bihar).

(ix) Normally the court in Order
to satisfy whether deceased was in a fit
mental condition to make the dying
declaration look up to the medical opinion.
But where the eye witness has said that the
deceased was in a fit and conscious state to
make this dying declaration, the medical
opinion cannot prevail. (Nanahau Ram and
Anr. v. State of M.P.).

(x) Where the prosecution version
differs from the version as given in the
dying declaration, the said declaration
cannot be acted upon. (State of U.P. v.
Madan Mohan).

33. In the case in hand we thus
found that statement under Section 161
Cr.P.C. which was relied upon as dying
declaration, does not fulfill the requirement
of every provisions of law and fact.

34. PW-6, Chandra Prakas Bhatt,
deposed that on 26.05.2012, he undertook
investigation, recorded statement of Smt.
Aneeta
Bajpai
(injured).
He
further
deposed in cross-examination that dying
declaration was not got recorded because
she had come to her house after getting
cured from hospital. He did not take
container and Match box in his possession
from spot; she died after five days from the
date of incident. Thus, it is very clear, when
Investigator recorded statement of victim
under Section 161 Cr.P.C., she was not
under the expectation of death and she
remained alive about two weeks. Evidently,
dying declaration was not recorded by
Investigating Officer before two reliable
witnesses,
therefore,
statement
under
Section 161 Cr.P.C. does not fall under the
12 All. Manjoor Alam @ Nirahu Vs. State of U.P.
835
category of 'dying declaration' under
Section 32 of Act,1872."

28. We have examined the evidence
on record and find that the alleged
statement of deceased is not corroborated
as neither the alleged motive is proved nor
the statement of eye-witnesses is found
credible and reliable. We are also inclined
to accept the argument of Sri Khan that as
the alleged statement of deceased under
Section
161
Cr.P.C.
has
not
been
confronted to the accused appellant, as
being one of the incriminating material
under
Section
313
Cr.P.C.,
such
circumstance otherwise cannot be relied
upon
against
the
accused
appellant.
Reliance is placed upon a judgment of the
Supreme Court in Samsul Haque Vs. The
State of Assam, AIR 2019 SC 4163,
wherein the Supreme Court has examined
the consequences of failure on part of the
prosecution to confront the accused with
material circumstance appearing against
him
under
Section
313
Cr.P.C.
In
paragraphs 21 to 25, the Court has held as
under:-

"21. The most vital aspect, in our
view, and what drives the nail in the coffin
in the case of the prosecution is the manner
in which the court put the case to accused
No.9, and the statement recorded under
Section 313 of the Cr.P.C. To say the least
it is perfunctory.

22. It is trite to say that, in view
of the judgments referred to by the learned
Senior
Counsel,
aforesaid,
the
incriminating material is to be put to the
accused so that the accused gets a fair
chance to defend himself. This is in
recognition of the principles of audi
alteram partem. Apart from the judgments
referred to aforesaid by the learned Senior
Counsel, we may usefully refer to the
judgment of this Court in Asraf Ali v. State
of Assam. The relevant observations are in
the following paragraphs:

"21. Section 313 of the Code
casts a duty on the Court to put in an
enquiry or trial questions to the accused for
the purpose of enabling him to explain any
of the circumstances appearing in the
evidence against him.