# Munna @ Parvez / (In Jail) v. State of U.P

- **Citation:** (2022) 11 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** J. Criminal Appeal No. 3856 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-parvez-in-jail-v-state-of-u-p-47804
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 302,
304 part-I, 307, 354 Ka & 354-Gha -
Indian Evidence Act, 1872 - Sections- 32 &
11 All. Munna @ Parvez Vs. State of U.P.
213
60- Criminal Appeal - Conviction & Sentence -
Life imprisonment with fine - evaluation of
evidences - offence of teasing & murder - FIR -
informant alleged that accused are used to
tease his daughter and date on incident they
asked to her by giving mobile to call them when
she denied, being angry, they tried to drag her
and by sprinkled kerosene on her and set her
ablaze - dying declaration - distinction between
'murder' and 'culpable homicide'- admittedly
death
caused by
the
accused
was
not
premeditated, they had no intention to caused
death - injuries were though sufficient in the
ordinary course of nature to have caused death
- held, instant case fall under the exception 1
and 4 to section 300 of IPC - hence, appeal is
liable to be partly allowed - impugned conviction
u/section 302 IPC is liable to be converted into
conviction u/section 304 Part - I IPC.(Para - 43,
45, 46)

Appeal Partly allowed. (E-11)

List of Cases cited:

## Text

212 INDIAN LAW REPORTS ALLAHABAD SERIES
these eye-witnesses is very much doubtful
rather it is proved that they were not
present at the place of occurrence and have
not seen any incident as alleged by
prosecution, there emerges strong suspicion
and high probability of false implication of
the accused-appellants on the basis of
enmity between the families of in-laws of
deceased and appellant Vijay Pal. False
implication of appellant- Rajnesh is also
due to enmity. This enmity is explained by
PW2.

21. After sifting the evidence as
above, we are of the considered opinion
that learned trial court has fallen into grave
error in believing the testimony of PW2
and PW3 because it is well proved that they
were not the as eye-witness. Learned trial
court has not taken into consideration that
material contradictions in their testimony
and these contradictions are so major that
they go to the very root of the prosecution
case and shatter it.

22. Hence, we are of the considered
view that learned trial court did not
appreciate the evidence in right perspective
and misread it. Appellants- Vijay and
Rajnesh are wrongly convicted by trial
court under Section 302 r/w Section 34 IPC
and Section 323 r/w Section 34 IPC.
Hence, we upturn the finding of learned
trial court convicting the appellants and the
appeal is liable to be allowed.

23. Accordingly, both the appeals are
allowed.

24. Impugned judgement is set aside.
Conviction and sentence of both the
appellants under Section 302 r/w Section
34 IPC and Section 323 r/w Section 34 IPC
is hereby set aside and appellants are
acquitted of the aforesaid charges.

25.

The
accused-appellants
be
released from jail forthwith if not wanted in
any other case.

26. Record and proceedings be sent
back to the court below.

27. In Criminal Appeal No. 2819 of
2019 Smt. Abhilasha Singh, Advocate was
appointed as Amicus Curiae as learned
counsel for the appellant did not appear.
She
will
be
paid
Rs.15,000/-
as
remuneration by the High Court Legal
Services Committee.
----------
(2022) 11 ILRA 212
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

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

Criminal Appeal No. 3856 of 2015

Munna @ Parvez
 ...Applicant/ Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Mahesh Prasad Yadav, Sri Brijesh Sahai,
Sri Mohammad Asif, Sri Ram Jatan Yadav,
Sri Arun Kumar Srivastava, Sri Girish Kumar
Singh

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 302,
304 part-I, 307, 354 Ka & 354-Gha -
Indian Evidence Act, 1872 - Sections- 32 &
11 All. Munna @ Parvez Vs. State of U.P.
213
60- Criminal Appeal - Conviction & Sentence -
Life imprisonment with fine - evaluation of
evidences - offence of teasing & murder - FIR -
informant alleged that accused are used to
tease his daughter and date on incident they
asked to her by giving mobile to call them when
she denied, being angry, they tried to drag her
and by sprinkled kerosene on her and set her
ablaze - dying declaration - distinction between
'murder' and 'culpable homicide'- admittedly
death
caused by
the
accused
was
not
premeditated, they had no intention to caused
death - injuries were though sufficient in the
ordinary course of nature to have caused death
- held, instant case fall under the exception 1
and 4 to section 300 of IPC - hence, appeal is
liable to be partly allowed - impugned conviction
u/section 302 IPC is liable to be converted into
conviction u/section 304 Part - I IPC.(Para - 43,
45, 46)

Appeal Partly allowed. (E-11)

List of Cases cited:

1. Surinder Kumar Vs St. of Pun., (2020) 2 SCC
563,

2. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537,

3. Dhari & ors. Vs St. of U.P., AIR 2013 SC
30,

4. Shyam Babu Vs St. of U.P., AIR 2012 SC
3311,

5. Shyamal Ghosh Vs St. of W.B., AIR 2012 SC
3539,

6. Dayal Singh Vs St. of Uttaranchal, AIR 2012
SC 3046,

7. Amit Vs St. of U.P., AIR 2012 SC 1433,

8. St. of Haryana Vs Shakuntala & ors., 2012
(77) ACC 942 (SC),

9. Bikau Pandey Vs St. of Bihar, (2003) 12 SCC
616,

10. Anil Rai Vs St. of Bihar, (2001) 7 SCC 318,

11. Deepak Verma Vs St. of H.P., (2011) 10 SCC
129,

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

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

14. Ramilaben Hasmukhbhai Khristi Vs St. of
Guj., (2002) 7 SCC 56,

15. Hema Vs St., (2013) 81 ACC 1 (SC),

16. Tukaram & ors. Vs St. of Mah., (2011) 4 SCC
250,

17. B.N. Kavatakar & anr. Vs St. of Karn., 1994
SUPP (1) SCC 304,

18. Veeran & ors. Vs St. of M.P., (2011) 5 SCR
300,

19. Khokan Alias Khokhan Vishwas Vs St. of
Chhattisgarh, (2021) 2 SCC 365,

20. Anversinh v. St. of Guj., (2021) 3 SCC 12,

21. Pravat Chandra Mohanty Vs St. of Odisha,
(2021) 3 SCC 529,

22. Pardeshiram Vs St. of M.P., (2021) 3 SCC
238.

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

1. This Criminal Appeal has been
directed against the judgment and order
dated 15.7.2015 passed by the Additional
Sessions Judge, Fast Track Court, Pilibhit
in Sessions Trial No. 435 of 2013 (Case
Crime No. 362 of 2013), P.S. Kotwali
Pilibhit, District Pilibhit convicting and
sentencing the appellant under Section 302
I.P.C. for life imprisonment and a fine of
Rs. 10,000/-, under Section 354-ka IPC for
three years rigorous imprisonment and a
fine of Rs. 5,000/- and under Section 354gha
IPC
for
three
years
rigorous
imprisonment and a fine of Rs. 5,000/- with
214 INDIAN LAW REPORTS ALLAHABAD SERIES
stipulation of default clause. All the
sentences
were
directed
to
run
concurrently.

2. Brief facts, as culled out from the
record, are that a First Information Report
was lodged by the informant, Zahid Khan
son of Shri Puttan, resident of Veni
Chaudhary, Police Station Kotwali Sadar,
Pilibhit, at Police Station Kotwali Sadar,
District Pilibhit with the averments that
Munna, Adnan son of Dilshel Khan and
Amar son of Mohd. Umar used to tease her
daughter Hima by passing comments which
was complained to their guardians but they
did not stop their activities. On 20.5.2013,
at about 8.00 p.m. when his daughter was
returning from the house of her Bua in
front of the gate of the house, the aforesaid
Munna and others gave mobile to Hima and
asked her to call to them with the said
mobile but Hima did not accept the mobile,
due to which being angry they tried to drag
her. Angreed with Hima's protest, the
aforesaid Munna and others sprinkled
kerosene on her and set her ablaze. Hearing
her cry, Shahid, son of the informant and
Gudia, wife of Afaq and the local residents
reached there and on their exhortation, the
aforesaid Munna and others ran away.
Information about the incident was given at
Police Station Kotwali at 9.30 p.m. and the
injured
was
hospitalized
in
District
Hospital,
Pilibhit
where
her
dying
declaration (Ext. ka-11) was recorded by
the Nayab Tehsildar, Pilibhit. He also took
her thumb impression over the same.
Victim was conscious at the time of
statement.

3. On the basis of the written report
(Ext. ka-1), chik First Information Report
(Ext. Ka-2) was registered at Police Station
concerned on 20.5.2013 at 9.30 p.m.
against Munna, Adnan and Amar at case
crime no. 362 of 2013 under Sections 354ka and 354-gha and 307 IPC.

4. Investigation of the case proceeded.
During
course
of
investigation,
the
Investigating
Officer
recorded
the
statement of witnesses, prepared site plan,
inquest report was prepared and post
mortem was performed. During the course
of instigation, the victim died. After
making thorough investigation, charge
sheet was submitted against the accused.
Concerned Magistrate took cognizance on
the charge sheet. On 19.7.2013 and
13.9.2013 respectively accused Adnan and
Amar were declared juvenile in conflict
with law and their files were separated and
sent to Juvenile Justice Board. The learned
Magistrate summoned the accused Munna
and committed the case to Court of
Sessions, as prima facie charges were for
the sessions triable offences.

5. The charges framed were under
Sections 354-ka, 354-gha, 307 IPC read
with Section 34 IPC and 302 IPC read with
Section 34 IPC. The accused-person
pleaded not guilty and wanted to be tried.
Trial started and in support of its case,
prosecution examined 10 witnesses, who
are as follows:

1
Zahid
PW-1
(informant)
(father of the
deceased)
2
Rashid
PW-2 (brother
of deceased)
3
Asma Bee
PW-3 (aunt of
deceased)
4
Ram
Chandra
Sharma
PW-4
(scribe
of the F.I.R.)
5
Dr. Bhagwan Das
PW-5
(who
performed the
post
mortem
11 All. Munna @ Parvez Vs. State of U.P.
215
of
the
deceased
and
and
gave
certificate
before
the
dying
declaration of
the deceased)
6
Gandhi Lal Sharma
PW-6
(who
conducted the
inquest of the
deceased
and
prepared other
papers)
7
Rajeev Nigam
PW-7 (Nayab
Tehsildar
Sadar, Pilibhit
who recorded
the
dying
declaration of
the deceased)
8
Satendra
Kumar
Singh
PW-8
(Investigating
Officer-III)
9
Rakesh Singh
PW-9
(Investigating
Officer-I)
10
Anand
Kumar
Verma
PW-10
(Investigating
Officer-II)

6. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Written report
Ext. A-1
2
Chik F.I.R.
Ext. A-2
3
G.D. entry
Ext. A-3
4
Post
mortem
report
Ext. A-4
5
Inquest report
Ext. A-5
6
Challan Nash
Ext. A-6
7
Photo Nash
Ext. A-7
8
Letter to C.M.O.
Ext. A-8
9
Letter to R.I.
Ext. A-9
10
Specimen Seal
Ext A-10
11
Dying declaration
Ext. A-11
12
Charge sheet
Ext. A-12
13
Memo
of
clothings
of
deceased
Ext. A-13
14
Site plan
Ext. A-14
15
Copy G.D.
Ext. A-15
16
Certificate before
recording
the
dying declaration
Ext. A-16
17
Certificate
after
recorded
the
dying declaration
Ext. A-17

7. Deceased was hospitalised after the
occurrence. She died on the same day of
the occurrence during the course of
treatment.

8. The incriminating circumstances
emanating from the prosecution evidence
were put to the accused. In his statement
recorded under Section 313 CrPC, he
denied his involvement in the incident and
pleaded false implication on account of
enmity.

9. The accused in his defence has
examined DW-1 Ishaq Ahmad, DW-2
Fahim, DW-3 Sharfuddin and DW-4 Jalil
Miyan.

10. Relying upon the aforesaid
evidence adduced by the prosecution, the
trial court concluded that the prosecution
succeeded in proving its case beyond
reasonable
doubt
and
convicted
and
sentenced
the
accused
appellant
accordingly.

11. The learned counsel for the
appellant assailing the findings of the trial
court recorded in the impugned judgment
216 INDIAN LAW REPORTS ALLAHABAD SERIES
argued that the impugned judgment is a
product of surmises and and conjectures.
The trial court did not appreciate the
evidence on record in a legal and proper
manner and the findings are contrary to
law. The impugned judgment does not
appear to be fair and just conclusion of the
episode which invites interference of the
appellate court and deserves to be set-aside.
It has also been submitted that the sentence
imposed by the trial court is too severe and
the accused appellant invites indulgence of
the appellate court to acquit him. The dying
declaration, which also formed basis of
conviction, is also not legally reliable. On
the aforesaid grounds it has been prayed
that the accused appellant be acquitted by
allowing the present appeal.

12. Per contra, learned AGA
appearing for the State has contended that
there is no legal or factual error in the
impugned judgment and it is a result of
proper appreciation of facts and evidence
on record and the dying declaration is also
a reliable and cogent piece of evidence. On
the aforesaid grounds, dismissal of the
present appeal was prayed for.

13. Heard Shri Mahesh Prasad Yadav,
learned counsel for the appellant and Shri
N.K. Srivastava, learned AGA for the
State.

14. At the very outset, the fact which
draws our attention is that the present case
rests upon the eye witness account. The
facts of the case find support from oral
evidence as well as the dying declaration of
the deceased. It is found in the F.I.R. itself
and also in the oral testimonies of PW-1,
father of the deceased and PW-2, brother of
the
deceased,
that
earlier
from
the
occurrence the named accused persons
including the present appellant used to
passing comments upon the deceased and
their mischief was complained of by the
informant to their family members also. As
per the F.I.R. version at the time of
occurrence the appellant alongwith other
two co-accused whose trial was separated
and sent to the Juvenile Justice Board, tried
to give mobile phone to the deceased
forcibly but she refused to take it being
angry of which they tried to drag her and in
the course of this incident they poured
kerosene oil upon the deceased and set her
ablaze.

15. PW-2, the brother of the deceased,
has categorically stated in his evidence that
when on cry of his sister he reached the
spot, he saw the appellant Munna and other
co-accused Adnan and Amar surrounding
his sister. Co-accused Adnan and Amar
poured kerosene oil over his sister and
present appellant Munna set her ablaze. At
the time of occurrence his father Zahid,
mother Shamshadi Begum and other
neighbourers came over there. Hima ran
towards the house and laid on a cot. They
took her to the hospital but after some time
she died. The accused fled away from the
scene of occurrence. This statement finds
support from the statement of PW-1,
informant, who has also categorically
confirmed the role of present appellant in
the occurrence. PW-1 and PW-2 both have
stated that the present appellant and other
co-accused used to tease the deceased and
when she protested on the fateful day she
was set ablaze by them. The informant has
also proved the written report as Ext. A-1.

16. PW-3, Smt. Asma Bee, who is a
native of the same vicinity, has also
corroborated the prosecution version and
has stated that when on the cry of Hima she
reached the spot, she saw her burning and
Munna, Adnan and Amar running away
11 All. Munna @ Parvez Vs. State of U.P.
217
from there. PW-1 and PW-2 have also
stated that when Hima laid on the cot after
the occurrence she had told that Amar,
Adnan and Munna had set her ablaze and
they used to tease her.

17. There is nothing in the crossexamination of PW-1, PW-2 and PW-3
which can be termed as inconsistent or
untrustworthy statement.

18. It has been contended by the
learned counsel for the appellant that there
is no independent witness of the incident
and all the aforesaid three witnesses are the
family members of the deceased, which
makes the prosecution story suspicious.

19. We do not find ourselves in
agreement with the aforesaid plea taken by
the learned counsel for the appellant. The
legal position in respect of a relative
witness has been made clear in a catena of
decisions by the Hon'ble Apex Court and
by this Court also. It is well settled that the
testimony of a witness in a criminal trial
cannot be discarded merely because the
witness is relative or family member of the
victim of the offence. In such a case the
Court has to adopt a careful approach in
analysing the evidence of such a witness
and if the testimony of the related witness
is otherwise found credible the accused can
be convicted on the basis of testimony of
such related witness. Recently, in Surinder
Kumar Vs. State of Punjab (2020) 2 SCC
563 Hon'ble Supreme Court has reiterated
that merely because prosecution did not
examine any independent witness, would
not necessarily lead to conclusion that
accused was falsely implicated. The same
view
has
been
taken
in
Bhagwan
JagannathMarkad
Vs.
State
of
Maharastra (2016) 10 SCC 537, Dhari &
Others Vs. State of U.P., AIR 2013 SC
308, Shyam Babu Vs. State of U.P., AIR
2012 SC 3311, Shyamal Ghosh Vs. State
of WB, AIR 2012 SC 3539, Dayal Singh
Vs. State of Uttaranchal, AIR 2012 SC
3046, Amit Vs. State of U.P., AIR 2012 SC
1433
and
State
of
Haryana
Vs.
Shakuntala & Others, 2012 (77) ACC 942
(SC). In view of the aforesaid case laws
and the trustworthy and cogent evidence of
PW-1, PW-2 and PW-3 we are of the
considered view that the learned trial court
did not make any illegality in relying upon
the testimonies of the aforesaid witnesses.

20. PW-4, Head Constable Ram
Chandra
Sharma,
has
proved
the
registration of F.I.R. on the basis of written
report of informant Zahid Khan. He has
proved the chik F.I.R. as Ext. A-2 and G.D.
as Ext. A-3 and no adversity is found in his
deposition. The proceedings of inquest has
been proved by PW-6 S.I. Gandhi Lal
Sharma who has not only proved the
inquest report but also the papers sent for
the post mortem i.e. challan nash, photo
nash, letter to C.M.O., letter to R.I. as Ext.
A-5 to Ext. A-9 and specimen seal as Ext.
A-10. No unnatural statement has been
made by this witness also.

21. It is pertinent to mention here the
evidence of PW-5 Dr. Bhagwan Das, who
has performed the autopsy of the deceased
Hima. In his deposition PW-5 has proved
the Autopsy Report as Ext. A-4 and the
following ante mortem injuries were found
by him :

"Superficial to almost deep burn
injury present over body except lower
abdomen and back of head. Front scalp
hair burnt. Skin peeled out at places read
colour of base of burn injury."

He has also opined that death was
caused due to shock and mild asphyxia as a
218 INDIAN LAW REPORTS ALLAHABAD SERIES
result of extensive burn injury over the
body (in the ante mortem injury). He has
further stated that the deceased was 95%
burnt. She was brought to the emergency of
the hospital in a burn and living condition
and was referred to surgery and was
examined on 20.5.2013 at 9.00 p.m.
General condition of the patient was very
bad and pulse was not being found and B.P.
was very much low. It is noteworthy that
the post mortem of the deceased was
conducted on 21.5.2013 at 1.40 p.m. and
the death occurred on 21.5.2013 at 5.30
a.m..

22. On the basis of aforesaid
evidence, we reach the conclusion that the
offence was committed by the present
appellant with the aid of other co-accused
by burning and the prosecution has
successfully proved its case to this extent.

23. Furthermore, from the statement
of PW-1, PW-2 and PW-3 it is clear that
the occurrence happened on the road near
the house of the informant. The topography
of the place of occurrence has been clearly
shown in the site plan Ext. A-14 proved by
PW-9, who has stated in his deposition that
on pointing out of the informant of the case
he had inspected the spot and prepared the
site plan. Hence, the place of occurrence is
certain and we, therefore, do not find any
force in the contention of the learned
counsel for the appellant regarding the
fixation of place of occurrence.

24. The motive of the case was also
hit by the learned counsel for the appellant,
who has vehemently argued that the
appellant had no reason to set the deceased
ablaze and there was no previous enmity
between the parties. Learned AGA has
opposed this plea and submitted that since
the present case rests upon the evidence of
eye witnesses, there is no need to prove the
motive of the offence for the prosecution.
We also find ourselves in support of the
plea taken by the learned AGA. In Bikau
Pandey Vs. State of Bihar (2003) 12 SCC
616 it has been held that when the direct
evidence establishes the crime, motive is of
no
significance
and
pales
into
insignificance. In Anil Rai Vs. State of
Bihar (2001) 7 SCC 318 it has been held
that enmity is a double edged weapon
which can be a motive for the crime as also
the ground for false implication of the
accused persons.

25. There are catena of decisions on
the point that in a case based upon the eye
witness account, the motive loses its
significance. In Deepak Verma Vs. State
of Himachal Pradesh (2011) 10 SCC 129
It has been held as under:

"...Proof of motive is not a sine
qua non before a person can be held guilty
of commission of crime. Motive being a
matter of mind, is more often than not
difficult to establish through evidence."

26. Moreover, in the present case it
has been fully established by the cogent
and reliable evidence of PW-1 PW-2 that
the accused appellant used to tease the
deceased who was a young girl alongwith
other co-accused persons and when they
failed in their planning to give a mobile
phone to her to be in regular contact with
her, they set her ablaze.

27. The trial court in the impugned
judgment has discussed the aforesaid
points at length and has made a
categorical finding that the prosecution
case is fully established on the basis of
cogent and reliable evidence on the
aforesaid points.
11 All. Munna @ Parvez Vs. State of U.P.
219

28. Both sides have made their rival
contentions upon the veracity of dying
declaration of the deceased. PW-7 the
Nayab Tehsildar, Sadar has recorded the
dying declaration of the deceased on
20.5.2013. Dying-declaration was recorded
by him after obtaining the certificate of
mental-fitness from doctor in the hospital.
After completion of dying-declaration also
the said doctor has given certificate that
during the course of statement, the victim
remained conscious.

29. 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
declaration to be the sole basis of conviction
is that it can be so done, 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.

30. 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 of Lakhan (supra) that a
dying declaration recorded by a competent
Magistrate would stand on a much higher
footing than the declaration recorded by
officer 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.

31. In the wake of aforesaid judgment
of Lakhan (supra), dying declaration
cannot be disbelieved, if it inspires
confidence.
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
220 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

32. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7 SCC
56], the Hon'ble Apex Court held that
under the law, dying declaration can form
the sole basis of conviction, if it is free
from any kind of doubt and it has been
recorded in the manner as provided under
the law. It may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

33. From the above case laws, it clearly
emerges that it is not an absolute principle of
law that a dying declaration cannot form the
sole basis of conviction of an accused when
such dying declaration is true, reliable and
has been recorded in accordance with
established practice and principles and if it is
recorded so then there cannot be any
challenge regarding its correctness and
authenticity.

34. In the present case, dying
declaration of the deceased was recorded by
Nayab
Tehsildar,
Sadar,
Pilibhit
after
obtaining the certificate of medical fitness
from the concerned doctor. This dying
declaration was proved by him. This witness
is absolutely an independent witness and has
no grudge or enmity to the convict at all. In
the dying declaration, the deceased did not
unnecessarily involved the other family
members of the accused appellants. She only
attributed the role of burning to accused
appellant, who were actual culprit.

35. Learned counsel for the appellant
has also assailed the proceedings of the
investigation and has argued hat the
investigation has not been done in a proper
manner and there are several lacunas in the
investigation.
Learned
trial
court
has
elaborately discussed the several aspects of
the investigation of the case and has found
that there is no material lacuna or omission in
the investigation of the case and we concur
with the same. Moreover, it is also to be kept
in mind that even if the investigation of the
case is faulty but the prosecution succeeds to
prove its case on the basis of other cogent
evidence on record, it makes no adverse
affect over the prosecution case. In Hema Vs.
State (2013) 81 ACC 1 (Supreme Court) it
has been held by the Hon'ble Apex Court that
any irregularity or deficiency in investigation
by I.O. need not necessarily lead to rejection
of the case on prosecution when it is
otherwise proved. The only requirement is to
use
of
extra
caution.
The
defective
investigation cannot be fatal to prosecution
when ocular testimony is found credible and
cogent. It may be reiterated at the cause of
repetition that investigation in the present
case does not suffer with any material
irregularity which goes to the root of the
prosecution case.

36. One specific argument has been
made from the side of the appellant to the
11 All. Munna @ Parvez Vs. State of U.P.
221
effect that the prosecution has not disclosed
the genesis of the case in truthful manner
and many material facts have been
concealed. It is vehemently argued that it
was not a homicidal death but the deceased
committed suicide by setting her ablaze
herself in the house of the informant
himself. DW-1, DW-2 and DW-4 have
been examined from the defence side to
prove the aforesaid facts. They have stated
in their respective depositions that at the
time of the occurrence they had seen the
deceased in burning condition over the roof
of Zahid, the informant. They went over
there and found that Hima was lying on the
bed in burning condition and they had
brought her away to the hospital. They
have also stated that at the time of
occurrence there was a power cut in the
vicinity and they live nearby the house of
the accused. DW-3 has also been examined
to prove the factum of power cut at the time
of occurrence. He is an employee of
Electricity Division, Pilibhit and on the
basis of official register he has proved this
fact that on 20.5.2013 there was a shutdown in mohalla Beni Chaudhary from
8.05 p.m. to 8.35 p.m..

37. Learned AGA has vehemently
opposed the aforesaid plea taken by the
learned counsel for the appellant and
contended that the parties were known to
each other as they lived in the same vicinity
which is called mohalla Beni Chaudhary,
Pilibhit. Even if it is presumed that there was
power cut at the time of occurrence, it cannot
be said that the accused and his friends could
not be identified by the prosecution witnesses
of fact. Moreover, deceased was seen in
burning condition by PW-1, PW-2 and PW-3
and in the light of the fire itself they could
easily be identified by the witnesses. Hence,
the evidence of DW-3 is of no help to the
convict / appellant. The attention of this
Court was also drawn by the learned AGA to
the fact that DW-1 has stated in his evidence
that the inquest proceedings were performed
before him and he had made signature over
the inquest report but he has admitted that at
the time of inquest he did not disclose this
fact to the police that it was a suicidal case.
This
omission
makes
his
deposition
unreliable. Likewise, testimony of DW-2 is
also not reliable. In his cross-examination he
has stated that whatsoever he has stated in his
examination-in-chief he had informed to the
police. It is noteworthy that there is nothing
on record in writing regarding this fact. So far
as the testimony of DW-4 is concerned, he
has not seen the occurrence and has only seen
the deceased crying and burning.

38. Learned trial court has discussed the
defence evidence, above mentioned, at length
and found it not reliable and we concur with
the same.

39. Considering the evidence of the
witnesses, the medical evidence including
post mortem report and also considering the
dying declaration, there is no doubt left in our
mind about the guilt of the present appellant.

40. 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 Section 299 of the Indian Penal Code,
which read 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
222 INDIAN LAW REPORTS ALLAHABAD SERIES
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

41. 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 caused
is done-
Subject to certain
exceptions culpable
homicide is murder
is the act by which
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.

42. 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.

43. 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 Part-I as per the
observations of the Apex Court in Veeran
and others Vs. State of M.P. Decided,
(2011) 5 SCR 300 which have to be also kept
in mind.

44. In latest decision in Khokan
Alias Khokhan Vishwas vs. State of
11 All. Shiv Kishore Tiwari @ Rajju Tiwari Vs. State of U.P.
223
Chhattisgarh, (2021) 2 Supreme Court
Cases 365 where the facts were similar to
this case, the Apex Court has allowed the
appeal of the accused appellant. The decision
of the Apex Court in the case of Anversinh
v. State of Gujarat, (2021) 3 SCC 12 which
was related to kidnapping from legal
guardian, wherein it was established that the
Court while respecting the concerns of both
society and victim, propounded that the twin
principle of deterrence and correction would
be served by reducing the period of
incarceration already undergone by the
accused. In our case, this is not that gruesome
murder where the accused cannot be dealt
with in light of all these judgments.
Judgments in Pravat Chandra Mohanty v.
State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of the
accused.

45. In view of the aforesaid discussions,
we are of the view that appeal is liable be
partly allowed and the conviction of the
appellant under Section 302 IPC is liable to
be converted into conviction under Section
304 (Part-I) IPC.

46. Accordingly, appeal is partly
allowed and the appellant is convicted for the
offence under Section 304 (Part-I) IPC and is
sentenced
to
undergo
ten
years
of
incarceration with remission. We maintain
the fine amount and default sentence, which
will start if fine is not deposited after ten
years with remission.

47. Record and proceedings be sent
back to the Court below forthwith.

48. This Court is thankful to learned
Advocates and Mr. Mohd. Furkan Khan, Law
Clerk (Trainee) of this Court for ably
assisting the Court.
----------
(2022) 11 ILRA 223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6577 of 2008

Shiv Kishore Tiwari @ Rajju Tiwari
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vikas Tiwari, Sri Abhay Kumar Singh, Sri
I K Chaturvedi, Sri Mahesh Prasad Yadav,
Sri P.K. Shukla, Sri R.K. Pandey, Sri
Shailesh Pandey, Sri V.B. Rao, Sri Kamta
Prasad

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 313 - Indian Penal
Code, 1860 - Section - 302- Criminal Appeal
- Conviction & Sentence - Life imprisonment
with fine - Evaluation of evidences - offence of
murder - FIR - informant alleged that accused
were calling names & abusing standing at the
door of his house, when the family of the
informant trying to stop him by abusing accused
started abusing from his courtyard and triggered
two fire from his gun in hand out of which one
fire was fit the uncle of the informant, resulted
the uncle was died on the spot - distinction
between 'murder' and 'culpable homicide'- trial
court fallen into grave error believing the
testimonies of PWs whom are not the eyewitnesses and there are several material
contradiction in their testimony - the report of
ballistic expert is not in favour of the
prosecution - held, death was homicidal death
but prosecution has failed to proved the charges
against the accused beyond reasonable doubt -