# Mithlesh (In Jail) v. State of U.P

- **Citation:** (2023) 2 ILRA 771
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Criminal Appeal No. 1213 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithlesh-in-jail-v-state-of-u-p-49214
- **Pages:** 13

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- No tutoring in the whole
process of recording of dying declaration
and Ex.Ka-13 is a genuine and innocent
statement. P.W.10 R.K. Singh, Tehsildar/
Executive Magistrate is a responsible
officer and not a interested witness -No
material circumstance is found from the
analysis of the evidence on record to
establish that the Tehsildar had any
orientation against the accused.

The dying declaration cannot be said to be
tutored where the Magistrate has recorded it in
a proper manner and the court finds the same
to be natural and truthful.

Criminal Law- Indian Evidence Act, 1872-
Section
32-Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is
wholly reliable- In case the court comes to
the conclusion that the dying declaration
is true and reliable, has been recorded by
a person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring/duress/prompting; it
can be the sole basis for recording
conviction. In such an eventuality no
corroboration is required. The reliability of
dying declaration in absence of doctor's
certification
is
not
fatal
if
person
recording
it
was
satisfied
that
the
deceased was in a fit state of mind.

Settled law that conviction can solely be based
,without any further corroboration and despite
the absence of a doctor's certificate, upon a
dying declaration where the same is found to be
natural, credible and trustworthy.

Criminal Law- Indian Penal Code, 1860-
Sections 300, 302 &304 -The offence
would be one punishable under Section
304 part-I of the IPC-It appears that the
death caused by the accused was not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC-
The role of the appellant that is clear from
the dying declaration and other records
and we also keep in mind that the
deceased had survived for 5 days after the
occurrence
and
ultimately
died
of
septicaemia-
The
conviction
of
the
appellant under Section 302 I.P.C. is
required to be converted to that under
Section 304 Par I of I.P.C.

Where the accused had committed the offence
without pre-meditation or prior intention and
the deceased had expired after several days due
to septicaemia, then instead of the offence of
murder, the accused would be liable to be
convicted for the offence of culpable homicide
not amounting to murder punishable under
section 304 Part- I of the IPC. (Para 37, 39, 47
51, 56)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,792 of 42,020. This is a partial read: ask again with offset=39792 for what follows._

2 All. Mithlesh Vs. State of U.P.
771
punishment should be proportionate to the
gravity of the offence.

59. The Apex Court in the case of G. V.
Siddaramesh Versus of State of Karnataka,
2010 (87) AIC 43 (SC), where appeal was filed
by convict husband in a dowry death case, while
deciding the appeal of the appellant, modified the
sentence. Paragraph 31 of the said judgment is
reproduced below:

"31. In conclusion, we are satisfied
that in the facts and circumstances of the case,
the appellant was rightly convicted under
Section 304-B I. P. C. However, his sentence of
life imprisonment imposed by the Courts below
appears to us to be excessive. The appellant is a
young man and has already undergone 6 years
of imprisonment after being convicted by the
Additional Sessions Judge and the High Court.
We are of the view, in the facts and
circumstances of the case, that a sentence of 10
years' rigorous imprisonment would meet the
ends of
justice. We accordingly, while
confirming the conviction of the appellant under
Section 304-B, I. P. C., reduce the sentence of
imprisonment for life to 10 years' rigorous
imprisonment. The other conviction and sentence
passed against the appellant are confirmed."

60. Applying the principles laid down by
the Apex Court in the aforesaid judgements and
having regard to the totality of the facts and
circumstances of the case, particularly, the fact
that no minimum sentence has been provided for
the offence under Section 304 IPC, it appears to
us from a perusal of the impugned judgment that
sentence awarded by learned trial court for life
term is very harsh keeping in view the entirety of
facts and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as discussed
above, has held that undue harshness should be
avoided taking into account the reformative
approach underlying in criminal justice system.
Adopting the same reformative approach, we
consider that no accused person is incapable of
being reformed and, therefore, all measures
should be applied in order to bring them in the
social stream.

61. Keeping in view the reformative theory
of punishment and "doctrine of proportionality",
it appears to us that the sentence of life
imprisonment awarded under Section 304 (PartI) IPC by learned trial Court to the appellant is
too harsh and severe. The appellant is in jail since
12.11.2012 i.e. for the last more than ten years.
This fact is also admitted by learned AGA.

62. Hence, we are of the considered view
that since the appellant has already served-out
more than ten years jail sentence, the sentence of
life imprisonment under Section 304 (Part-I) IPC
is converted into the sentence already undergone,
which would meet the ends of justice.

63. The appeal is, accordingly, partly
allowed, subject to the above modification of
sentence.

64. Registry is directed to transmit the
record to the Court below for necessary
compliance.
----------
(2023) 2 ILRA 771
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

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

Criminal Appeal No. 1213 of 2020

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

Counsel for the Appellant:
772 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Suraj Kumar Singh, Sri Arvind Kumar
Singh, Sri Noor Mohammad, Sri Sunil
Kumar Srivastava

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- No tutoring in the whole
process of recording of dying declaration
and Ex.Ka-13 is a genuine and innocent
statement. P.W.10 R.K. Singh, Tehsildar/
Executive Magistrate is a responsible
officer and not a interested witness -No
material circumstance is found from the
analysis of the evidence on record to
establish that the Tehsildar had any
orientation against the accused.

The dying declaration cannot be said to be
tutored where the Magistrate has recorded it in
a proper manner and the court finds the same
to be natural and truthful.

Criminal Law- Indian Evidence Act, 1872-
Section
32-Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is
wholly reliable- In case the court comes to
the conclusion that the dying declaration
is true and reliable, has been recorded by
a person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring/duress/prompting; it
can be the sole basis for recording
conviction. In such an eventuality no
corroboration is required. The reliability of
dying declaration in absence of doctor's
certification
is
not
fatal
if
person
recording
it
was
satisfied
that
the
deceased was in a fit state of mind.

Settled law that conviction can solely be based
,without any further corroboration and despite
the absence of a doctor's certificate, upon a
dying declaration where the same is found to be
natural, credible and trustworthy.

Criminal Law- Indian Penal Code, 1860-
Sections 300, 302 &304 -The offence
would be one punishable under Section
304 part-I of the IPC-It appears that the
death caused by the accused was not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC-
The role of the appellant that is clear from
the dying declaration and other records
and we also keep in mind that the
deceased had survived for 5 days after the
occurrence
and
ultimately
died
of
septicaemia-
The
conviction
of
the
appellant under Section 302 I.P.C. is
required to be converted to that under
Section 304 Par I of I.P.C.

Where the accused had committed the offence
without pre-meditation or prior intention and
the deceased had expired after several days due
to septicaemia, then instead of the offence of
murder, the accused would be liable to be
convicted for the offence of culpable homicide
not amounting to murder punishable under
section 304 Part- I of the IPC. (Para 37, 39, 47
51, 56)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. St. Vs Veer Pal & ors. (2022) 2 SCC (Crl) 224

2. Lakhan Vs St. of M.P ,(2010) 8 SCC 514

3. Krishan Vs St. of Har. (2013) 3 SCC 280

4. Gulzari Lal Vs St. of Har. (2016) 4 SCC 583

5. Sher Singh Vs St. of Punj. (2008) 4 SCC 265

6. Sudhakar Vs St. of M.P. ( 2012) 7 SCC 569

7. B. Sanghikala Vs St. of A.P, 2005 SCC (Crl) 171

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

9. B.N. Kavatakar & anr. Vs St. of Kar. 1994
SUPP (1) SCC 304
2 All. Mithlesh Vs. State of U.P.
773
10. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

11. St. of U.P Vs Mohd. Iqram & anr, (2011) 8
SCC 80

12. Bengai Mandal @ Begai Mandal Vs St. of
Bih. (2010) 2 SCC 91

13. Maniben Vs St. of Guj.(2009) 8 SCC 796

14. Pawan Kumar Vs St. of U.K. (2021) 11 SCC
53

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. The Court of Additional Sessions
Judge, Court No.3, Saharanpur recorded
conviction
of
the
present
appellant
Mithlesh under Section 302 I.P.C. in
Sessions Trial No. 520 of 2015 (State Vs.
Mithlesh) arising out of Case Crime No.
38/2015, P.S.- Titro, District- Saharanpur
and sentenced her for life imprisonment
and fine to a tune of Rs.20,000/- and to
undergo
6 months
additional
simple
imprisonment in case of default of payment
of fine, hence this appeal.

2. The prosecution case as culled out
from the FIR is that the informant and the
accused had some land dispute. On
9.4.2015 Devendra, son of informant cut
down some trees from that land and a
complaint was made by the accused in the
police
station.
When
the
Devendra
aforesaid was going to the police station,
accused Smt. Mithlesh who was standing
outside the police station, with intention to
kill, set ablaze Devendra by pouring petrol
over him. The occurrence was witnessed by
the informant, his son Ravindra and Ranpal
son of Mehar Chand. Injured was taken for
treatment and written report Ex.Ka-1 was
given to the police station on the basis of
which chick FIR Ex.Ka-2 under Section
307 I.P.C. was lodged and entry was made
in the relevant G.D. Ex.Ka-3. The injured
was
referred
to
District
Hospital,
Saharanpur and subsequently to the higher
centre. He was admitted in Safdarjang
Hospital, Delhi on 10.04.2015 where
during treatment he succumbed to the
injuries on 14.4.2015. At District Hospital
Saharanpur
injured
Devendra
was
medically examined by Dr. Pravin Kumar,
who found superficial deep burn over the
body except both elbow, waist and scalp. It
was found by the doctor that the injuries
might have been caused by setting ablaze
with aid of petrol or kerosene oil and
Medico Legal Report Ex.Ka-11 was
prepared. When the injured was brought to
Safdarjang
Hospital,
Delhi,
he
was
medically examined by Dr. Akshat Vahan,
who found 85% burn injuries over his body
and he was admitted into I.C.U and Medico
Legal Report Ex.Ka-5 was prepared.

3. After the death of the deceased the
case was converted into Section 302 I.P.C.
and his autopsy was performed by Dr.
Mukesh Kumar Bansal who found as
herein under:

"EXTERNAL
EXAMINATION ( Injuries etc):

Infected epidermal to dermal
thermal burn injuries present all over the
body except lower part of abdomen, back
of right forearm and right hand, both palms,
both sole. Skin Peeled off at places
revealing yellowish green foul smelling pus
covering necrotic base. Blackening of skin
present at places. Singeing of hair present
at
places.
Total
area
of
burn
is
approximately 85% of total body surface
area".

4. It was opined by doctor that death
was due to septicaemic shock as a result of
774 INDIAN LAW REPORTS ALLAHABAD SERIES
infected ante mortem flame thermal burn
injuries involving about 85% of total body
surface area and accordingly, autopsy
report
Ex.Ka-12
was
prepared.
The
Investigation of the case was conducted
firstly by Sri Viresh Pal Giri, who recorded
the statement of witnesses and after
inspection of the spot site plan Ex.Ka-9
was also prepared by him and semi burn
clothing, plain soil and stony part of road
was also seized and memo Ex.Ka-10 was
prepared. The I.O. also recorded statement
of injured Devendra, whose fitness to give
statement was certified by Dr. Sarseej
Sharma through fitness certificate Ex.Ka-4.
However, after alteration of the case under
Section 302 I.P.C. investigation was taken
by S.H.O. Kapil Gautam, who performed
the rest proceedings of the investigation
and after finding sufficient evidence charge
sheet under Section 302 I.P.C. Ex.Ka-8 was
submitted to the Court. However, on
14.04.2015
the
dying
declaration
of
aforesaid Devendra was recorded by Shri
R.K. Singh, Tehsildar, who prepared dying
declaration Ex.Ka-13, which was recorded
at Safdarjang Hospital, Delhi. The accused
appeared before the Court and the case
being exclusively triable by the Sessions
Court was committed to the Court of
Session. Charge under Section 302 I.P.C.
was framed against the accused to which he
pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove
its case relied upon oral and documentary
evidence.

6. In oral evidence as many as 11
witnesses have been examined, who are as
follows:

1
Vijay
Pal,
informant,
father of the deceased
PW1
2
Ravindra, eye-witness
PW2
3
HCP Ghaseetu, scribe of
the FIR
PW3
4
Dr.
Anwar
Ansari,
medical examination of
injured at CHC, Gangoh,
Saharanpur
PW4
5
Dr.
Akshat
Vahan,
witness of Medico Legal
Report, death summery
and death report
PW5
6
Inspector Kapil Gautam,
second I.O
PW6
7
S.I. Viresh Pal Giri, first
I.O
PW7
8
Dr.
Pravin
Kumar,
witness
of
medical
examination
PW8
9
Dr.
Mukesh
Kumar
Bansal, witness of the
autopsy report
PW9
10 R.K.
Singh,
Tehsildar,
witness
of
the
dying
declaration
PW10
11 Dr.
Sarseej
Sharma,
witness
of
fitness
certificate
of
injured
Devendra
PW11

7. To support the oral the oral
evidence following documentary evidence
has been filed by the prosecution:

1
Written Report
Ex.Ka-1
2
Chik FIR
Ex.Ka-2
3
Registration G.D.
Ex.Ka-3
4
Emergency
Register at CHC
Gangoh
Ex.Ka-4
5
Medical
Report
of
Safdarjang
Hospital, Delhi
Ex.Ka-5
6
Death Summery
Ex.Ka-6
7
Death Report
Ex.Ka-7
8
Charge Sheet
Ex.Ka-8
2 All. Mithlesh Vs. State of U.P.
775
9
Site Plan
Ex.Ka-9
10
Memo
of
Recovery
Ex.Ka-10
11
Medical
Report
of
District
Hospital,
Saharnpur
Ex.Ka-11
12
Autopsy Report
Ex.Ka-12
13
Dying
Declaration
Ex.Ka-13
14
FSL report
Paper No.86Ka

8. After the evidence was over, the
incriminating circumstances and evidence
were put to the accused, who claimed the
whole evidence to be false and took
defence of false implication due to enmity
in respect of some land dispute. Claiming
his innocence, the accused also examined
D.W.1 Billu and D.W.2 Nafee Singh.

9. P.W.1 Vijay Pal is the informant
and father of the deceased Devendra Singh,
who in his statement corroborated the
prosecution version and has stated that at
the time of occurrence, the accused was
standing in front of the gate of the police
station and threw petrol or kerosene oil or
any flammable article over Devendra and
set him ablaze by match stick. The incident
was witnessed by his brother Pala Ram and
Madan also, who came on the spot along
with him. His son was taken to Gangoh
Hospital and then to District Hospital,
Saharanpur from where he was referred to
Delhi, where he died on 14.04.2015. He has
proved written report Ex.Ka-1 and has also
stated that a civil litigation had been
pending between the parties since 1992.
However,
there
occured
some
contradictions between his statement before
the Court and that of given to the I.O but
the contradictions are not material and does
not hit at the very root of the prosecution
case. The contradictions, as we note, are
minor and ignorable, as such.

10. P.W.2 Ravindra is said to be the
eye-witness of the occurrence, who has
deposed that he had not seen the accused
pouring any inflammable article over the
body of Devendra but had seen her setting
ablaze him. The factum of enmity in
respect of some land dispute between the
parties has also been affirmed by this
witness. The deposition of this witness is
clearly natural and trustworthy and no
material contradictions is found in his
deposition.

11. P.W.3 HCP Ghaseetu has proved
chick FIR Ex.Ka-2 and case registration
G.D. Ex.Ka-3 and has stated that the FIR
was lodged on the basis of the written
report given by the informant Vijaypal.

12. P.W.4 Dr. Anwar Ansari has
examined the injured Devendra at C.H.C.
Gangooh, however, according to this
witness after giving first aid to the injured,
he referred him to S.B.D. Hospital,
Saharanpur. He has proved emergency
register Ex.Ka-4.

13. P.W.5 Dr. Akshat Vahan had
stated that he had admitted the injured in
the hospital, who was 85% burned at that
time. He was admitted in I.C.U. where
during treatment he died on 14.04.2015.
This witness has proved the Medico Legal
Report, death summary and death report of
Devendra as Ex.Ka-5, Ex.Ka-6 and Ex.Ka7 respectively.

14. P.W.6 S.H.O. Kapil Gautam is the
second I.O of the case, after its alteration
into Section 302 I.P.C. He has proved the
proceedings of investigation and also
charge sheet Ex.Ka-8.
776 INDIAN LAW REPORTS ALLAHABAD SERIES

15. P.W.7 S.I. Vireshpal Giri, the first
I.O. has proved the proceeding of the
investigation, site plan Ex.Ka-9 and seizure
memo Ex.Ka-10. He has also stated that he
had taken statement of injured Devendra at
Safdarjang Hospital, Delhi on 13.4.2015.

16. P.W.8 Dr. Pravin Kumar has
stated that he had medically examined
Devendra at S.B.D. Hospital, Saharanpur.
Medico Legal Report Ex.Ka-11 has been
proved by this witness and he had found it
a burn case.

17. P.W.9 Dr. Mukesh Kumar, who
performed autopsy of the deceased and post
mortem report Ex.Ka-12 has been proved
by this witness.

18. P.W.10 R.K. Singh, Tehsildar has
stated in his deposition that on 14.04.2015
on the instructions of S.D.M., he recorded
the dying declaration and proved the same
as Ex.Ka-13.

19. P.W.11 Dr. Sarseej Sharma has
proved this fact that when the statement of
injured was recorded by the I.O. Viresh Pal
Giri on 13.04.2015, he had given fitness
certificate for the condition of the injured,
which he has proved as Ex.Ka-14.

20. Two defence witnesses have also
been examined by the accused. D.W.1,
Billo has proved this fact that his shop is
situated near police station Gangooh. On
the date of occurrence, he had seen
Devendra entering into the police station
and after one or two minutes he came out,
he was ablaze and fell down before his
shop.

21. D.W.2 Nafee Singh has proved CD
Material Ex.Ka-1 and has stated before the
Court that he has visualized the CD
wherein Devendra was speaking that he
himself set him ablaze.

22. On the basis of the aforesaid
evidence and facts and circumstances of the
case and also after hearing the rival
submissions of both the sides, learned trial
Court recorded the conviction under
Section 302 I.P.C. and sentenced him
accordingly.

23. Learned counsel for the appellant
has submitted that the allegations against
the appellant are totally false and there is
no cogent and reliable evidence to support
the charge levelled against the appellant.
None of the witnesses of fact are reliable
and the dying declaration does not inspire
confidence. The investigation is faulty and
from the evidence on record the case of
false implication emerges out.

24. Per contra, learned A.G.A. has
contended that the present case rests upon
the eye-witness account. P.W.1 and P.W.2,
who are the eye-witnesses are reliable and
natural witnesses. The prosecution case is
supported by the medical evidence as well.
There is no material irregularity or lacuna
in the investigation of the case. On the
basis of the eye-witness account, no
possibility of false implication of the
accused is found. On the aforesaid grounds,
the dismissal of this appeal has been prayed
for.

25. From perusal of the entire
evidence, at the very outset, we find that
the lady, who is the appellant was well
aware of the fact that the parties were
called before the police but her presence
over there with a cane of kerosene itself
shows her animus towards the deceased.
She is alleged to have been poured the
kerosene over the deceased and this fact is
2 All. Mithlesh Vs. State of U.P.
777
fully established by the ocular evidence of
P.W.1 and P.W.2 and analysis of the
depositions of both the witnesses take us to
this logical conclusion that it was the
accused, and accused only, who set ablaze
the deceased by pouring kerosene oil upon
him.

26. We find that the evidence of
P.W.1 and P.W.2 coupled with the dying
declaration Ex.ka13 would go to show that
it was nothing else but a homicidal death
corroborated by the autopsy report and also
by the medical report available on record.

27. The veracity of the dying
declaration has been assailed by the learned
counsel for the appellant but we cannot
ignore this fact that the dying declaration
was recorded by Tehsildar/ Executive
Magistrate P.W.10, who has categorically
stated that at the time of giving the
statement Devendra was conscious and was
in a condition to give statement. A perusal
of the dying declaration Ex.Ka-13 shows
that at the end of the statement it has been
signed and dated by the giver. Shri R.K.
Singh, Tehsildar/ Executive Magistrate has
also put his signature at the end of the
statement along with the date and time
Ex.Ka.13 also bears the seal of Shri R.K.
Singh, which is reproduced herein below:

c;ku

c;ku ntZ fd;k eSa nsosUnz iq= Jh
fot;iky] xkWo rcjZdiqj Fkkuk frrjks ftyk lgkjuiqj
m0iz0 dk jgus okyk gwWA eSa fnukad 09-04-2015 dks
vius [ksr ls lQsnk dk isM+ dkVdj ?kj yk jgk Fkk
fd jkLrs esa iqfyl us jksd fy;k vkSj mlus dgk fd
;g isM+ fdlh vkSj dk gS ftldk uke feFkys'k uke
,d vkSjr gh gSA bls Fkkus ys pyksA eSa VSDVj dks Fkkus
ys tk jgs Fks fd jkLrs esa VsDVj iyV x;k vkSj mlds
ckn eSa xkWo ds iz/kku ds ikl x;kA mlus eq>s dksbZ
lgk;rk djus ls euk dj fn;k fQj eSa Fkkuk igaqWpkA
ogkW ij feFkys'k uke dh vkSjr cSBh FkhA eSa iqfyl
okyksa ls ckr gh dj jgk Fkk fd ml vkSjr us esjs
Åij feV~Vh dk rsy Mky fn;k vkSj ekphl dh frYyh
tyk dj eq>s Mjkus yxhA blh chp mlds gkFk ls
tyrh gqbZ frYyh NwV dj esjs Åij vk x;kA ftlls
eSa tyus yxkA eq>s lkeus pk; okyk Jh fcYyw us vkx
cq>kbZ vkSj mlds ckn ?kj ds yksxks us xaxks vLirky
igqWpk;kA bl ?kVuk ds le; ogkW ij nks iqfyl okys
Hkh Fks ftldks eSa lkeus vkus ij igpku ldrk gwWA eSa
;g c;ku vius gks'kks gok'k esa ns jgk gWwA ;g c;ku eSa
lqu fy;k vkSj le>dj gLrk{kj dj jgk gwWA

 vVsLVsM

 vifBr gLrk{kj

 14-04-2015

 VkbZe 12-30 ls 1-05 ,0,e0

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 U;w nsgyh fMfLVaDV

28. The whole prosecution story has
been summed up in the aforesaid statement.
The background of the incident and the
author of the crime i.e. accused, the manner
of crime and the place of occurrence
including name of witnesses, all the
relevant facts find place in the aforesaid
statement Ex.Ka-13.

29. The learned counsel for the
appellant has vehemently argued that the
dying declaration in this case is not a valid
piece of evidence. It has not been
corroborated by any cogent evidence. On
the other hand the learned AGA has relied
upon the law laid down by the Hon'ble
Apex Court in State v. Veer Pal and
Others (2022) 2 SCC (Criminal) 224
which is as under :-

16 Now, on the aspect, where in
the absence of any corroborative evidence,
there can be a conviction relying upon the
dying declaration only is concerned, the
decision of this Court in Munnu Raja
(Munnu Raja vs. State of M.P., (1976) 3
scc 104: 1976 SCC (Cri) 376) and the
subsequent decision in Paniben vs. State of
Gujrat [Paniben v. State of Gujarat,
778 INDIAN LAW REPORTS ALLAHABAD SERIES
(1992) 2 SCC 474: 1992, SCC (Cri) 403]
are required to be referred to. In the
aforesaid decisions, it is specifically
observed and held that there is neither a
rule of law nor of prudence to the effect
that a dying declaration cannot be acted
upon without a corroboration. It is
observed and held that if the Court is
satisfied that the dying declaration is true
and voluntary it can base its conviction on
it, without corroboration. Similar view has
also been expressed in State of U.P. Vs.
Ram Sagar Yadav [State of U.P. vs. Ram
Sagar Yadav] (1985) 1 SCC 552; 1985
ACC (Cri) 127] and Ramawati Devi vs.
State of Bihar. [Ramwati Devi vs. State of
Bihar] (1983) 1 SCC 211: 1983 SCC (Cri)
169]. Therefore, there can be a conviction
solely based upon the dying declaration
without corroboration.

30. From the statement of P.W.10 it is
absolutely clear that there is no tutoring in
the whole process of recording of dying
declaration and Ex.Ka-13 is a genuine and
innocent statement. P.W.10 R.K. Singh,
Tehsildar/ Executive Magistrate is a
responsible officer and not a interested
witness.
We
note
that
no
material
circumstance is found from the analysis of
the evidence on record to establish that the
Tehsildar had any orientation against the
accused, hence, question of doubt on
declaration recorded by P.W.10 does not
arrive at all.

31. Our attention is drawn towards
one more ancillary fact that P.W.7, who is
the first I.O. of the case has also recorded
the statement of Devendra, then injured, at
Safdarjang Hospital on 13.4.2015. At the
time of recording of the evidence the
patient was in a fit mental condition, a
certificate of this effect was given by
P.W.11
Dr.
Sarseej
Sharma,
senior
resident, department of burn and plastic
surgery, Safdarjang, Hospital, New Delhi,
which is proved by him as Ex.Ka-14.

32. A plea has been raised on behalf
of the appellant that since two dying
declarations are on record, the court must
verify the veracity of such statements and
also to find out as to which of the statement
is reliable.

33. In the backdrop of this argument
and after going through the statement of
P.W.7, we find that what statement, the
injured had given to P.W.7, is no where
mentioned in the whole testimony of
P.W.7. Moreover, the said statement was
not put before P.W.7 and the extract of
such statement has not been exhibited,
meaning thereby the said dying declaration
has not been proved as per law of
Evidence. Hence we are not inclined to
accept the statement of the injured
Devendra recorded by P.W.7 as a dying
declaration. It remains a simple statement
recorded under Section 161 Cr.P.C. and no
reliance can be placed upon this statement,
however, as concluded earlier in this
judgement dying declaration Ex.Ka-13 is a
valid and reliable peace of evidence and we
rely upon the same.

34. The trial Court has also relied
upon the dying declaration Ex.Ka-13 and
has analysed the surrounding evidence
thoroughly. It was correctly opined by the
learned trial Court that no certificate of
doctor was required prior to rely upon such
dying declaration.

35. Learned counsel for the appellant
has argued that dying declaration is
doubtful and not corroborated by witnesses
of fact, hence, it cannot be the sole basis of
conviction.
Legal
position
of
dying
2 All. Mithlesh Vs. State of U.P.
779
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
has summarized the law regarding dying
declaration in Lakhan vs. State of Madhya
Pradesh [(2010) 8 Supreme Court Cases
514]. In this case, Hon'ble Apex Court held
that "the doctrine of dying declaration is
enshrined in the legal maxim nemo
moriturus praesumitur mentire, which
means, "a man will not meet his Maker
with a lie in his mouth". The doctrine of
dying declaration is enshrined in Section 32
of Evidence Act, 1872, as an exception to
the general rule contained in Section 60 of
Evidence Act, which provides that oral
evidence in all cases must be direct, i.e., it
must be the evidence of a witness, who
says he saw it. The dying declaration is, in
fact, the statement of a person, who cannot
be called as witness and, therefore, cannot
be
cross-examined.
Such
statements
themselves are relevant facts in certain
cases".

36. On reliability of dying declaration
and acting on it without corroboration,
Hon'ble Apex Court held in Krishan vs.
State of Haryana [(2013) 3 Supreme
Court Cases 280] that "it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused. Where the dying declaration is
true
and
correct,
the
attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused. Hence, in order
to pass the test reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration".

37. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
It is also held by Hon'ble Apex Court in the
aforesaid case, that a dying declaration
recorded by a competent Magistrate would
stand on a much higher footing than the
declaration recorded by office of lower
rank, for the reason that the competent
Magistrate has no axe to grind against the
person named in the dying declaration of
the victim.

38. So as to the omission to take a
certificate from a doctor regarding the
fitness of the maker of the dying
declaration by the Tehsildar/ Executive
Magistrate in the present case is concerned,
we take note of and follow the law laid
down in Gulzari Lal Vs. State of Haryana
(2016) 4 SCC 583 wherein it has been held
that a valid dying declaration may be made
without obtaining a certificate of fitness of
declarant by a medical officer. Likewise in
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Sher Singh Vs. State of Punjab (2008) 4
SCC 265 it was held that the reliability of
dying declaration in absence of doctor's
certification is not fatal if person recording
it was satisfied that the deceased was in a
fit state of mind.

39. In the facts and circumstances of
the present case, we can safely rely upon
Sudhakar Vs. State of M.P. ( 2012) 7 SCC
569 wherein it was clarified that " Dying
declaration" is the last statement made by a
person at a stage when he is in serious
apprehension of his death and expects no
chances of his survival. At such time, it is
expected that a person will speak the truth
and only the truth. Normally in such
situations, courts attach intrinsic value of
truthfulness to such statement- Once such
statement has been made voluntarily, it is
reliable and is not an attempt by deceased
to cover up truth or falsely implicate a
person, then courts can safely rely on such
dying declaration and it can form the basis
of conviction- More so, where version
given by deceased as dying declaration is
supported and corroborated by other
prosecution evidence, there is no reason for
courts to doubt truthfulness of such dying
declaration.

40. Learned counsel for the appellant
submitted that the medical evidence shows
that the deceased died due to Septicaemic
shock after about five days from the date of
occurrence and, therefore, it cannot be said
that the deceased was done to death and
was murdered.

41. While replying to the submission
of the learned counsel for the appellant that
since the death was caused due to
septicaemia and it took place after about
five days from the date of occurrence,
dying declaration is not reliable and
inadmissible, the learned AGA has relied
upon the case of B. Sanghikala v. State of
Andhra Pradesh, 2005 SCC (Criminal)
171, wherein it has been held that there is
no legal requirement that dying declaration
could be admissible in evidence only when
made under expectation of death.

42. All these facts coupled with the
fact that we have hold that it was a
homicidal death, we concur with the
learned trial Court on the same aspect.

43. The evidence of D.W.1 and D.W.2
have been relied upon by the learned
counsel for the appellant. D.W.1 has
narrated that the deceased was set ablaze in
the police station itself. In this regard the
learned counsel for the appellant has drawn
our attention to the statement of Dr. Akshat
Vahan P.W.5 who has stated in his
statement that the patient had told him that
he was burn in the police station by the
police.

44. So far as the statement of P.W.5 is
concerned that it was a police officer who
set the deceased ablaze, it does not find
support from any other evidence on record,
particularly from the ocular evidence,
which is reliable and trustworthy. The
learned trial Court has also discussed this
issue in the impugned judgment and has
found that the aforesaid statement of P.W.5
is not trustworthy in the facts and
circumstances of this case and we agree
with the same.

45. So far as the evidence of D.W.2 is
concerned, the CD allegedly containing the
video recording of the statement of the
deceased Devendra has not been proved,
according to law before the Court and this
fact has also been highlighted by the
learned trial Court, which accordingly did
2 All. Mithlesh Vs. State of U.P.
781
not rely upon the aforesaid CD. We also
find ourselves in full agreement with the
learned trial Court, also keeping in view the
provisions of Section 65A and 65B of the
Evidence Act and find that the electronic
evidence
has
not
been
proved
in
consonance
with
the
aforesaid
legal
provisions.

46. So far as the deposition of D.W.1
is concerned, his deposition also does not
inspire confidence specially in the light of
the dying declaration Ex.Ka-13 and also in
the light of the trustworthy and cogent
ocular evidence. In the site plan Ex.Ka-9,
the place of occurrence has been shown by
letter "x" which situates outside the police
station,
which
is
the
case
of
the
prosecution. P.W.7 has proved this site plan
in his evidence. Hence, the oral evidence
adduced by the defence is not reliable.

47. From the upshot of the aforesaid
discussion, we find that the finding of fact
regarding the presence of witnesses, place
of occurrence etc. cannot be faulted with
the death of the deceased was a homicidal
death, however, it appears that the death
caused
by
the
accused
was
not
premeditated and he had no intention to
cause death of the deceased and this fact
takes this Court to the most vexed question
where it would fall within the four corners
of the murder or culpable homicide not
amounting to murder, therefore, we are
considering the question whether it would
be a murder or culpable homicide not
amounting to murder and punishable under
Section 304 I.P.C.

48. While considering the conclusion
arrived at by the learned Trial court and the
sentence imposed upon by it, we would
have to see as to whether the deceased was
done to death, however, the cause of death
due to Septicaemic Shock will not take out
from the purview of Section 300 IPC.

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

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

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

Section 299
Section 300
A person commits
culpable homicide
if
the
act
by
which the death is
Subject to certain
exceptions culpable
homicide is murder
is the act by which
782 INDIAN LAW REPORTS ALLAHABAD SERIES
caused is done-
the death is caused
is done.
INTENTION
(a)
with
the
intention
of
causing death; or
(1)
with
the
intention of causing
death; or
(b)
with
the
intention
of
causing
such
bodily injury as is
likely
to
cause
death; or
(2)
with
the
intention of causing
such bodily injury
as
the
offender
knows to be likely
to cause the death
of the person to
whom the harm is
caused;
KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge
that
the act is likely to
cause death.
(4)
with
the
knowledge that the
act
is
so
immediately
dangerous that it
must
in
all
probability
cause
death
or
such
bodily injury as is
likely
to
cause
death, and without
any
excuse
for
incurring the risk of
causing death or
such injury as is
mentioned above.

51. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar
and Another Vs. State of Karnataka,
reported in 1994 SUPP (1) SCC 304, we
are of the considered opinion that the
offence would be one punishable under
Section 304 part-I of the IPC. Also from
the upshot of the aforesaid discussions, it
appears that the death caused by the
accused was not premeditated, accused had
no intention to cause death of deceased, the
injuries were though sufficient in the
ordinary course of nature to have caused
death, accused had no intention to do away
with deceased, hence the instant case falls
under the Exceptions 1 and 4 to Section
300 of IPC. While considering Section 299
as
reproduced
herein
above
offence
committed will fall under Section 304 PartI as per the observations of the Apex Court
in Veeran and others Vs. State of M.P.
(2011) 5 SCR 300 which have to be also
kept in mind.

52. In State of Uttar Pradesh vs.
Mohd. Iqram and another, [(2011) 8 SCC
80], the Apex Court has made the
following observations in paragraph 26,
therein:

"26. Once the prosecution has
brought home the evidence of the presence
of the accused at the scene of the crime,
then the onus stood shifted on the defence
to have brought-forth suggestions as to
what could have brought them to the spot
in the dead of night. The accused were
apprehended and, therefore, they were
under an obligation to rebut this burden
discharged by the prosecution and having
failed to do so, the trial-court was justified
in recording its findings on this issue. The
High Court committed an error by
concluding that the prosecution had failed
to discharge its burden. Thus, the judgment
proceeds on a surmise that renders it
unsustainable."

53. In Bengai Mandal alias Begai
Mandal vs. State of Bihar [(2010) 2 SCC
91], incident occurred on 14.7.1996, while
2 All. Dharmendra Singh Vs. State of U.P.
783
the deceased died on 10.8.1996 due to
septicaemia caused by burn injuries. The
accused was convicted and sentenced for
life imprisonment under Section 302 IPC,
which was confirmed in appeal by the High
Court, but Hon'ble The Apex Court
converted the case under Section 304 PartII IPC on the ground that the death ensued
after twenty-six days of the incident as a
result of septicaemia and not as a
consequence
of
burn
injuries
and,
accordingly, sentenced for seven years'
rigorous imprisonment.

54. In Maniben vs. State of Gujarat
[(2009) 8 SCC 796], the incident took place on
29.11.1984. The deceased died on 7.12.1984.
Cause of death was the burn injuries. The
deceased was admitted in the hospital with
about 60 per cent burn injuries and during the
course of treatment developed septicaemia,
which was the main cause of death of the
deceased. Trial-court convicted the accused
under Section 304 Part-II IPC and sentenced for
five years' imprisonment, but in appeal, High
Court convicted the appellants under Section
302 IPC.