# Neeraj Kumar Kanaujia v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-31
- **Case number:** Crl. Misc. Application (Leave to Appeal) No. 400 of 2014
- **Bench:** Rakesh Tiwari, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeraj-kumar-kanaujia-v-state-of-u-p-ors-43107
- **Pages:** 6

## Headnote

Cr.P.C. Section-372-Leave to appealagainst
acquittal-on
ground
the
deceased made dying declaration before
his death-assigning role of accusedunder Section 27 of evidence Act-valid
u/s 32 of Evidence Act-held that dying
declaration recorded by constable on
dictation of I.O.-No declaration in eye of
law-blood sustained clothes neither sent
for forensic test not produced before
Trail
Court-material
contradiction
in
prosecution witnesses-no independent
witness-examined-Trail
Court
not
committed any illegality or infirmityrequires no interference by High CourtAppeal dismissed.
Held: Para-16
The Apex Court in the case of Murlidhar
alias Gidda and others versus State of
Karnataka, 2014 (2) SCC (Crl.) 690 has
held that if a dying declaration of the
injured was recorded by a Constable on
the dictation of I.O. it will not be a dying
declaration in the eye of law. Hence, in the
facts of this case it is established from the
statements of P.W.2 and P.W.4 that
injured was not in a position to give his
statement. The trial Court has therefore,
rightly disbelieved the dying declaration of
the deceased recorded by the I.O. It is also
significant to note that the blood stained
clothes of the deceased were neither sent
for forensic test nor the same were
produced before the trial Court.
Case Law discussed:
(2014) 5 SCC-509; SCC-2011 (7) page-295;
SCC-2011 (2) page 490; Cr. L.J. 2006 page
2618; AIR 1995 SC-2472; AIR 2004 SC 1920;
1999 (2) SCC-126; 2014 (2) SCC (Crl.) 690.

## Text

3 All]. Smt. Ganga Devi Vs. Sri Bhagwan Dass & Ors.
1231
20.

List
the
matter
before
appropriate Bench after three weeks.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: 31.10.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Crl. Misc. Application (Leave to Appeal)
No. 400 of 2014
Neeraj Kumar Kanaujia
...Complainant
Versus
State of U.P. & Ors.
..Opp. Parties.
Counsel
for
the
Complainant:
Sri Gulab Chandra
Counsel for the Respondents:
A.G.A.
Cr.P.C. Section-372-Leave to appealagainst
acquittal-on
ground
the
deceased made dying declaration before
his death-assigning role of accusedunder Section 27 of evidence Act-valid
u/s 32 of Evidence Act-held that dying
declaration recorded by constable on
dictation of I.O.-No declaration in eye of
law-blood sustained clothes neither sent
for forensic test not produced before
Trail
Court-material
contradiction
in
prosecution witnesses-no independent
witness-examined-Trail
Court
not
committed any illegality or infirmityrequires no interference by High CourtAppeal dismissed.
Held: Para-16
The Apex Court in the case of Murlidhar
alias Gidda and others versus State of
Karnataka, 2014 (2) SCC (Crl.) 690 has
held that if a dying declaration of the
injured was recorded by a Constable on
the dictation of I.O. it will not be a dying
declaration in the eye of law. Hence, in the
facts of this case it is established from the
statements of P.W.2 and P.W.4 that
injured was not in a position to give his
statement. The trial Court has therefore,
rightly disbelieved the dying declaration of
the deceased recorded by the I.O. It is also
significant to note that the blood stained
clothes of the deceased were neither sent
for forensic test nor the same were
produced before the trial Court.
Case Law discussed:
(2014) 5 SCC-509; SCC-2011 (7) page-295;
SCC-2011 (2) page 490; Cr. L.J. 2006 page
2618; AIR 1995 SC-2472; AIR 2004 SC 1920;
1999 (2) SCC-126; 2014 (2) SCC (Crl.) 690.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard Sri Gulab Chandra, learned
counsel for the appellant, learned AGA
for the accused-respondents and perused
the record.
2. In view of the judgment rendered
in the case of Lekhraj versus State of U.P.
and others (Criminal Misc. Application
under Section 372 Cr.P.C. ( Leave to
Appeal) No. 6 of 2014 decided on 10th
October, 2014, no leave to appeal is
required for the victim to prefer an appeal
on the grounds mentioned in proviso to
Section 372 Cr.P.C. as he has an
indefeasible statutory right to file the
appeal.
3. Criminal Appeal No. 400 of 2014
under Section 372 Cr.P.C. has been
preferred
challenging
the
impugned
judgment and order dated 20.9.2014
passed by the Addl. Sessions Judge, Court
No. 10, Allahabad in S.T. No. 757 of
2011 (State Vs. Sunil Kumar Kaushik and
another along with connected S.T.No. 758
of 2011, State versus Sunil Kumar
Kaushik)
acquitting
the
accusedrespondents of the charges framed against
them under Sections 302 read with
1232
 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 34 IPC and Section 3/25 of the
Arms Act.
4. The facts of the case as are culled
out from record are that on 23.11.2010 at
about 9.15 P.M. when complainant Neeraj
Kumar Kannauji was returning on his
motorcycle along with his father Ramesh
Chandra Kannaujia after attending the
marriage of daughter of his uncle at
Transport Nagar, all of a sudden two
persons came on a motorcycle and the fire
was made by the pillion rider. After firing
they fled away towards Karbala. On
hearing the sound of firearm shots the
people began to run away due to fear. The
complainant brought his injured father to
Colvin Hospital from where he along with
his uncle and other persons was brought
to Jeevan Jyoti Hospital for treatment.
Dying declaration of Ramesh Chandra
Kannaujia was recorded by the Police
Officer at that hospital. The appellantcomplainant then lodged an FIR of the
incident at P.S. Khuldabad, Allahabad on
the same day.
5. Pursuant to the report, case crime
nos. 758 of 2011 and 77 of 2011 under
Section 302 and Section 3/25 of the Arms
Act were registered on 24.11.2010 at
00.10 A.M. at P.S.Khuldabad against
unknown
persons.
During
the
investigation, the names of the accused
persons came to light. Accused Sunil
Kumar Kaushik while on police remand
pointed a recovery of 315 bore tamancha
and one blank cartridge used in the
murder of Ramesh Chandra Kannaujia.
After investigation, the I.O. submitted
charge sheet against the accused persons
under Sections 302 IPC and 3/25 of the
Arms Act.
6. The case on being committed to
the Court of Session, the charge under
Section 302 read with Section 34 IPC was
framed against accused-respondents Sunil
Kumar Kaushik and Tinku Kaushik and a
separate charge under Section 3/25 of the
Arms Act was framed against accused
Sunil Kumar Kaushik, who denied the
charges and claimed trial.
7. In order to prove its case the
prosecution examined eleven witnesses,
namely, Neeraj Kumar Kannaujia (PW-1)
Arjun Lal (PW-2), Dr. Santosh Kumar,
Orthopedic Surgeon, T.B. Sapru Hospital,
Allahabad (PW-3), S.O. Anjani Kumar
Mishra (PW-4), Hajari Lal (PW-5), S.I.
Ram Asre Mishra (PW-6) S.O. Rajesh
Kumar (PW-7), Retired Dy. S.P. Jitendra
Nath Pandey (PW-8), Head Constable
Shyam Lal (PW-9), Surendra Singh,
Inspector
Food
&
Civil
Supplies,
Varanasi (PW-10) and Dr. S.K. Dubey
(PW-11) whereas the accused persons in
their statements under Section 313
Cr.P.C. denied the entire circumstances
appearing in story against them stating
that they have been falsely implicated in
this case. The accused-respondents also
produced five defence witnesses, namely,
Raj Kumari Devi (DW-1), Pradeep
Chaudhari
(DW-2),
Suresh
Mahajan
(DW-3), Sri Apoorva Vrat Pathak, Dy.
Jailer, Central Jail, Naini, Allahabad
(DW-4) and Devendra Kumar Pandey
(DW-5) in support of their case.
8. The impugned judgment is
assailed on the ground that from the
evidence of Neeraj Kannaujia (PW-1) and
Arjun Kannaujia (PW-2) it is established
that
the
accused-respondents
were
inimical with Ramesh Chandra Kannaujia
(since
deceased
)
on
account
of
encroachment over the land of Dhobi
3 All].
 Neeraj Kumar Kanaujia Vs. State of U.P. & Ors.
1233
Ghat which was motive for commission
of crime; that accused Sunil Kumar
Kaushik on remand had himself pointed
out recovery of tamancha of .315 bore
along with a blank cartridge used in the
murder of Ramesh Chandra Kannaujia;
that recovery memo has also been proved
by the concerned Police officer and
witnesses in the trial Court which itself
was sufficient to convict the accusedrespondents in view of Section 27 of the
Evidence Act; that deceased made his
statement soon prior to his death in
hospital
before
the
Police
Officer
assigning the role of committing the
murder to accused Sunil Kumar Kaushik
on account of enmity arising out of
encroachment over the land of Dhobi
Ghat, which is valid under Section 32 of
the Evidence Act but the trial Court has
not considered these facts and evidence
on record while acquitting the accusedrespondents. Learned counsel has placed
reliance upon the judgment rendered in
Dharam Deo Yadav versus State of Uttar
Pradesh, (2014) 5 SCC-509 in support of
these contentions.
9. It is also submitted that Neeraj
Kannaujia (PW-1) who was with his
father Ramesh Chandra Kannaujia on
23.11.2010 when murder was committed
had identified accused Sunil Kumar
Kaushik before the Court. He also stated
the manner and involvement of the
accused in murder. It is stated that there is
a clear, cogent and credit worthy evidence
on record explaining the injuries sustained
by the deceased which were illegally
discarded by the trial Court on ground of
contradictions
in
the
statement
of
witnesses and medical evidence, though
minor contradictions cannot be a ground
of acquittal as has been held in the cases
of Waman and others versus State of
Maharasthra, SCC-2011 (7) page-295,
Ravindra Kumar Pal versus Republic of
India, SCC-2011 (2) page-490 and that as
per the decision rendered in the case of
Kishore
Sindhi
versus
State
of
Maharshtra, Cr.L.J. 2006 page 2618,
Karnail Singh versus State of M.P., AIR
1995 SC-2472, Dhanraj alias Shera and
others versus State of Punjab, AIR 2004
SC 1920, Paras Yadav and others versus
State of Bihar, 1999 (2) SCC-126.
10. On the basis of aforesaid
judgments Counsel has argued that any
irregularity in the investigation cannot be
a ground for acquittal but the trial Court
has passed the impugned judgment of
acquittal
taking
into
account
the
irregularities
and
omissions
in
the
investigation. In so far as the dying
declaration is concerned, it is submitted
that it was not signed by the deceased or
the doctor; that it is well established law
that the FIR is not a encyclopedia where
facts to be mentioned but the trial Court
has discarded the prosecution story
merely because of non-mentioning of the
name of accused-respondents in the FIR
and that Ramesh Chandra Kannaujia
(since deceased) was in a serious
condition, hence could not have given any
declaration in that state. Therefore, the
entire facts and evidence available on
record clearly go to show that there is a
strong prosecution story with credit
worthy evidence proving the prosecution
case, hence the impugned judgment and
order of the trial Court based on illegal
and perverse finding is liable to be set
aside.
11. After considering the evidence,
material on record and hearing counsel for
the parties, the trial Court acquitted the
accused-respondents
vide
impugned
1234
 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order dated 20.9.2014
holding that the prosecution has failed to
prove its case beyond all reasonable
doubts.
12. On perusal of the impugned
judgment of the trial Court, evidence as
well as the record it appears that the
incident is said to have taken place on
23.11.2010 at about 9.15 P.M. at
Chauphatka bridge whereas the report
was lodged at P.S. Khuldabad on
24.11.2010 at 00.10 A.M. against two
unknown persons. Complainant Neeraj
Kumar Kannaujia (PW-1) in his evidence
has stated that he had seen the assailants
for the first time at Dhobi Ghat where he
used to go off and on along with his
father; that neither he nor his father were
having any land in their name at Dhobi
Ghat and that there was a dispute with the
accused persons, who wanted to grab the
land of Ghobi Ghat on which accused
Sunil
Kumar
Kaushik
had
made
encroachment and had started running a
shop
dealing
in
footwear.
Ramesh
Chandra Kannaujia (since deceased) had
opposed this whereupon the accused
persons had threatened him with dire
consequences.
13. PW-1 has further stated in his
oral evidence that when his father
sustained bullet injuries he was in a
conscious state and speaking but had not
told the names of the assailants to him or
any other members of his family. He also
stated that he knew the names of the
assailants from before. There is no reason
given by him as to why he did not
mention the names of the accused persons
in the FIR if he knew them from before.
14. Similar is the statement of Arjun
Lal (PW-2) who is brother of the
deceased- Ramesh Chandra Kannaujia.
He has stated in his evidence that when
deceased was got admitted in Colvin
hospital he was speaking but neither he
nor any persons present there, had
enquired from the deceased as to who had
attacked and caused bullet injuries. It may
be pointed out here that if injured is in a
conscious state and is aware of the
assailants surrounded by his family
members
or
well
wishers
as
per
prosecution story then he will certainly
tell them the names of the assailants.
Therefore, his statement of the witness
appears to be very unnatural
15. The dying declaration of
deceased-Ramesh Chandra Kannaujia is
said to have been recorded by I.O. Sri
Anjani Kumar Mishra on 24.11.2010 at
12.00 in the night. From the statement of
Dr. S.K. Dubey, (PW-11) it appears that
he was kept on ventilator. He has stated
that the patient who is kept on ventilator,
will not be in a position to speak. Doctor
treating the injured at Jeevan Jyoti
Hopsital has not given any certificate that
he was in a conscious state to give
statement. The Doctor could have also
recorded the dying declaration of the
injured but he has not done so. From
paper nos. (Ex.Ka-21 and Ex.Ka-22)
issued by Dr. Ashok Kumar Srivastava of
Jeevan Jyoti Hospital it appears that the
injured was not in a position to speak due
to tubes in his throat and mask of
ventilator covering his face but was also
not examined by the prosecution to prove
that the injured was in a position to speak.
Arjun Lal (PW-2) has stated that the
dying declaration of his brother was
recorded by the I.O. Sri Anjani Kumar
Mishra (PW-4) in his evidence has stated
that on 24.11.2010 at 12.30 when he
reached Jeevan Jyoti Hospital in the night
3 All].
 Neeraj Kumar Kanaujia Vs. State of U.P. & Ors.
1235
he had to take permission from the Doctor
for going in the ICU room. He has also
stated that the dying declaration of injured
was recorded by Munshi Purshottam
Pandey on his dictation in the hospital but
he was not examined by the prosecution.
In this situation, the I.O. could have got
his dying declaration recorded by a
Magistrate but it has not been done in the
instant case.
16. The Apex Court in the case of
Murlidhar alias Gidda and others versus
State of Karnataka, 2014 (2) SCC (Crl.)
690 has held that if a dying declaration of
the injured was recorded by a Constable
on the dictation of I.O. it will not be a
dying declaration in the eye of law.
Hence, in the facts of this case it is
established from the statements of P.W.2
and P.W.4 that injured was not in a
position to give his statement. The trial
Court has therefore, rightly disbelieved
the dying declaration of the deceased
recorded by the I.O. It is also significant
to note that the blood stained clothes of
the deceased were neither sent for
forensic test nor the same were produced
before the trial Court.
17. Raj Kumari (DW-1) has stated in
her evidence that accused Sunil Kumar
Kaushik is the father-in-law of her
daughter. He along with his family
members had come to attend the Tilak
ceremony of Ramu on 23.11.2010 at 7.00
P.M. at Ashok Nagar. Dinner at Tilak
ceremony took place till 12.00 in the night
and that she saw accused Sunil Kumar
Kaushik had not gone any where else
during this period i.e. he had stayed there
during the whole of the ceremony till
12.00 midnight. Pradeep Chaudhari (DW2) and Suresh Mahajan (DW-3) in their
statements have stated that on 23.11.2010
in the Tilak ceremony of Ramu Gautam
son of Banshi Lal at Ashok Nagar the
accused persons were present and accused
Sunil Kumar Kaushik had stayed there
during the whole night. There is nothing
in their statements which may indicate
that the accused persons were not present
in the Tilak ceremony, the night of
23.11.2010 at between 8.00 to 9.30 P.M.
when the murder of Ramesh Chandra
Kannaujia was committed.
18. In so far as the recovery of
country made pistol from the possession
of accused Sunil Kumar Kaushik is
concerned, it has come in the evidence of
constable Kalp Nath Singh (PW-7) that
the colour of the country made pistol was
white steel whereas S.I. Ram Asre Mishra
(PW6) in his evidence has stated that the
colour of country made pistol was iron
and not in steel colour. The rulings cited
by the learned counsel for the appellant
are not applicable to the facts and
circumstances of the present case and are
clearly distinguishable.
19. From the above discussions, we
find that there are material contradictions
in the statements of prosecution witnesses
and the medical evidence. No independent
witness has been examined by the
prosecution.
20. In our considered opinion, the
trial Court has not committed any
illegality or infirmity in acquitting the
accused persons through the impugned
judgment and order dated 20.9.2014,
hence requires no interference by this
Court.
1236
 INDIAN LAW REPORTS ALLAHABAD SERIES
21. For the reasons stated above, the
Criminal Appeal lacks merit and is
dismissed at the admission stage itself.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ASHOK PAL SINGH, J.
Special Appeal No. 445 of 2011
Bhuneshwar Rai
...Appellant
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Anil Kumar Srivastava, Sri Swarn
Kumar Srivastava
Counsel for the Respondents:
C.S.C.
U.P.
Civil
Services
Regulation-370Pensionary benefit-deniel in garb of
Regulation 370-identical provision of
Punjab
State
government-quashedaffirmed by Hon'ble Supreme Courtfurther Hon'ble Supreme Court clarifiedRegulation 370 to be read in the line of
judgment
of
Apex
Court-held-work
charge employee working for more than
10
years
continuously-entitled
for
pension benefit.
Held: Para-13
For all these reasons the dispute in the
present special appeal is no longer resintegra. The appellant has put in more
than 10 years regular service as work
charge
employees
w.e.f.
26.3.76
to
30.4.2006, hence he is entitled to the
benefit of pension etc. in view of the law
stated above.
Case Law discussed:
2010-Laws (SC)-2-40; (2010 (1) ADJ-329 (All)
(LB); (2006 (1) ESC 611 (All)(DB); (2006 (6)
ADJ-384 (DB).
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the
parties and perused the record.
2. The appellant has filed this intra
court appeal challenging the validity and
correctness of the judgment and order
dated 3.3.2011 passed by the Writ Court
in Civil Misc. Writ Petition No. 43822 of
2008, Bhuneshar Rai versus the State of
U.P. and others, whereby the aforesaid
writ petition had been dismissed.
3. Brief facts giving rise to the
instant appeal are that the appellant was
working in work charge establishment as
Chaukidar/helper since 26.6.1976 and
continued to work as such till 30.4.2006.
The proceedings for regularization was
initiated by the respondents in April,
2006. The Executive Engineer issued
letter dated 18.4.2006 directing the
appellant to produce the certificates of
educational
qualification
etc.
for
considering his case for regularization on
25.4.2006 so that formality could be
completed. He retired on attaining age of
superannuation on 30.4.2006.
4. It is contended that appellant
ought to have been regularized in April,
2006 and that his entire services from
26.6.1976 be counted for his pension and
other retiral benefits.
5. In support of his aforesaid
contention, learned counsel for the
appellant has relied upon the judgment
rendered by the Apex Court in the case of
Punjab State Electricity Board and
another versus Narata Singh, 2010-Laws
(SC)-2-40, which has been relied upon by
the learned Single Judge of this Court in
the case of Mohd. Mustafa versus State of