# Raghubir Singh & Ors. (In Jail) v. State

- **Citation:** (2020) 1 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-11
- **Case number:** Criminal Appeal No. 2155 of 1983
- **Bench:** Govind Mathur, C.J. Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghubir-singh-ors-in-jail-v-state-45240
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code -
Section 302, read with Section 34, 394,
411 - Appeal against conviction.

Evidentiary value of dying declaration.
The legal position that a Dying Declaration
possess great weight and an accused of a
crime can very very be held guilty on basis
of it only without further corroborations, but
at the same time it has to be ensured
thatsuch
declaration
must
inspire
full
confidence of the Court in its correctness.
(para 14)

The location of the place of occurrence too is
not matching in both the pieces of evidence.
True it is, the Dying Declaration was recorded
by a Executive Magistrate after obtaining a
fitness certificate from a medical practitioner
who treated the deceased but the infirmities
noticed above makes the Dying Declaration less
reliable or to say looses reliability to rest upon
the case of the prosecution entirely on that. In
view of it, in our considered opinion, the Dying
1 All. Raghubir Singh & Ors. Vs. State
149
Declaration in the instant matter deserves to be
ignored. (para 15)

The evidence of PW-2 is son of deceased and
three other independent witnesses produced by
prosecution did not support the prosecution
story. The evidence adduced by PW-2 is also in
huge contradiction with the facts stated in the
Dying Declaration. In entirety of the case, it
was necessary to have some corroboration of
the evidence adduced by PW-2, son of
deceased, which is conspicuously absent. A
reasonable doubt thus exists in accepting the
prosecution case. (para 17)

Appeal is allowed. (E-2)

List of cases cited: -

## Text

148 INDIAN LAW REPORTS ALLAHABAD SERIES
house. Those ornaments were to be
returned back, hence, this false case with
false accusation.

38. Even if these facts were being
admitted and proved, on record, then, also
in view of statement of prosecutorix
regarding
rape
committed
with
her,
testimony of DW-1 and DW-2, may not
going to give any reason, which may be of
any probability for raising any benefit of
doubt
against
the
proved
case
of
prosecution.

ORDER

The sentences awarded by the
learned Sessions Judge, as above, are the
sentence, given by the Legislature for
above offences and this offence of rape,
that too, with a minor, physically disabled
girl, by real maternal uncle, comes in a
category, where, a deterrent punishment is
needed, which the learned Sessions Judge
has rightly and cogently awarded in the
impugned judgment.

39. There is no illegality or
disproportion in the quantum of sentence.

40. Accordingly, on the point of
sentence, too, Criminal Appeal merits its
dismissal, and, thus, it stands dismissed as
such.

41. In view of what has been
discussed above, Criminal Appeal, being
devoid of merits, deserves to be dismissed
and,
thus,
Criminal
Appeal
stands
dismissed in toto.

42. Let a copy of this Judgment,
alongwith the Trial Court's record, be sent
to the Trial court concerned, by the office
within two weeks.
----------
(2020)1ILR A148

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 2155 of 1983

Raghubir Singh & Ors.
 ...Appellants (In Jail)
Versus
State ...Respondent

Counsel for the Appellants:
Sri V.C. Singh, Sri Gaurav Singh Tomar, Sri
Subhash Gosain, Sri V.S. Singh

Counsel for the Opposite Party:
A.G.A., Sri Ravindra Singh, Sri Shiv Sagar
Singh, Sri Subhash Gosain

Criminal Law - Indian Penal Code -
Section 302, read with Section 34, 394,
411 - Appeal against conviction.

Evidentiary value of dying declaration.
The legal position that a Dying Declaration
possess great weight and an accused of a
crime can very very be held guilty on basis
of it only without further corroborations, but
at the same time it has to be ensured
thatsuch
declaration
must
inspire
full
confidence of the Court in its correctness.
(para 14)

The location of the place of occurrence too is
not matching in both the pieces of evidence.
True it is, the Dying Declaration was recorded
by a Executive Magistrate after obtaining a
fitness certificate from a medical practitioner
who treated the deceased but the infirmities
noticed above makes the Dying Declaration less
reliable or to say looses reliability to rest upon
the case of the prosecution entirely on that. In
view of it, in our considered opinion, the Dying
1 All. Raghubir Singh & Ors. Vs. State
149
Declaration in the instant matter deserves to be
ignored. (para 15)

The evidence of PW-2 is son of deceased and
three other independent witnesses produced by
prosecution did not support the prosecution
story. The evidence adduced by PW-2 is also in
huge contradiction with the facts stated in the
Dying Declaration. In entirety of the case, it
was necessary to have some corroboration of
the evidence adduced by PW-2, son of
deceased, which is conspicuously absent. A
reasonable doubt thus exists in accepting the
prosecution case. (para 17)

Appeal is allowed. (E-2)

List of cases cited: -

1. St. of U.P. Vs. Madan Mohan & ors., AIR
1989 SC 1519

(Delivered by Hon'ble Govind Mathur, C.J.
Hon'ble Vivek Varma, J.)

1. By the judgment impugned dated 9th
September,
1983,
learned
Special
Judge/Additional Sessions Judge, Jalaun at
Orai,
recorded
conviction
of
accused
appellants Raghubir Singh, Himmat Singh,
Sarnam Singh and Pheran Singh for
commission of offence punishable under
Section 302, read with Section 34 Indian
Penal Code and sentenced them to undergo
imprisonment for life term. The accused
appellants have also been convicted for an
offence punishable under Section 394 IPC
and for that they have been sentenced to
undergo rigorous imprisonment for ten years
with fine of Rs. 1,000/- each and further to
undergo six months rigorous imprisonment in
default of payment of fine. Accused appellant
Pheran Singh has also been convicted for an
offence punishable under Section 411 IPC.
During the pendency of the appeal, all the
accused persons except Sarnam Singh, son of
Raghubir Singh, have died and as such appeal
has also been abated qua them.

2. The case of the prosecution is that
on 15th December, 1980, at about 5.45
pm, Sri Gajendra Singh (PW-2) and his
father Nathu Singh (deceased), were
returning to their home after visiting Devi
Temple situated in outskirts of their
village. At a pond, on way, Pheran Singh
armed with a knife, Sarnam Singh,
Raghubir Singh, Himmat Singh and
Makrand Singh armed with lathis along
with four other unknown persons came
from backside and attacked on Nathu
Singh. They also snatched the pistol that
was fastened by a belt on the robes of
Nathu Singh. On arrival of certain other
persons including Ram Das (PW-1),
Hakim Singh (PW-3) and Hamir Singh
(PW-4), who too were also coming from
the temple, the accused persons fled from
the spot of occurrence. Consequence to the
attack, Nathu Singh received several
injuries and, therefore, he was taken to the
hospital at a Jalaun. Doctor present at
Jalaun hospital provided first aid and also
stitched the injuries received by Nathu
Singh. Looking to the seriousness, injured
was referred for further treatment at
Government hospital Orai. Gajendra Singh
while leaving Nathu Singh at Orai hospital
for treatment went to the police station at
Orai to lodge a First Information Report.
At his instance, a case was lodged against
accused appellants and one Makrand
Singh
for
commission
of
offence
punishable under Section 307, read with
Section 149 IPC. At Orai hospital, after
obtaining fitness certificate from Dr. D.S.
Chauhan (PW-9), the Sub Divisional
Magistrate, Orai Sri P.D. Srivastava (PW12) recorded Dying Declaration (Exhibit
Ka-6) of Nathu Singh. Sri Nathu Singh
then was referred and moved for further
treatment to Government Hospital, Kanpur
and while in transit he died. After death of
Nathu Singh, investigation was undertaken
150 INDIAN LAW REPORTS ALLAHABAD SERIES
for commission of offence under Section
302/149 IPC. It would be pertinent to
mention that though the FIR was lodged at
Police Station Orai but the investigation
was
transferred
to
Police
Station
Madhogarh having territorial jurisdiction
for investigation of cases, at the place,
where the alleged crime was committed.

3. During the course of investigation
accused Pheran Singh was arrested and from
him a pistol and certain live cartridges were
recovered. As per the prosecution, the pistol
was of deceased Nathu Singh that was
snatched by the accused appellants while
committing the crime. The Investigating
Agency after completing the investigation
filed a report along with a charge sheet before
the competent court. The case being triable by
the Court of Sessions was committed to it.
The Sessions Court on basis of the material
available framed the charges and on denial of
the same trial commenced as desired.

4. The prosecution supported its case
by citing several documents, including
Dying Declaration (Exhibit Ka-6) and by
getting
ocular
evidence
of
sixteen
witnesses recorded. Out of the sixteen
witnesses, four witnesses, namely, Ram
Das (PW-1), Gajendra Singh (PW-2),
Hakim Singh (PW-3) and Hamir Singh
(PW-4) were cited as eye witnesses. Dr.
R.G. Singh (PW-11) adduced medical
evidence as he conducted autopsy on the
corpus of the deceased Nathu Singh. Sri
Dinesh Chandra Chaturvedi (PW-10)
narrated all the steps taken by him during
the course of investigation, being the
Investigating Officer. Sri P.D. Srivastava
(PW-12) affirmed the Dying Declaration
(Exhibit Ka-6) and its contents as he
recorded the same in the capacity of Sub
Divisional Magistrate. The testimony of
Dr. D.S. Chauhan (PW-9) was recorded as
he granted fitness certificate of Sri Nathu
Singh for getting his Dying Declaration
recorded. After completing the prosecution
evidence, opportunity was extended to the
accused appellants for explaining adverse
and incriminating circumstances existing
against them in prosecution evidence. All
the accused termed the entire evidence as
false and concocted with an allegation that
they have been falsely implicated in the
case. No evidence in defence was adduced.

5. It would be appropriate to state
that out of the four eye witnesses three,
namely, Ram Das (PW-1), Hakim Singh
(PW-3) and Hamir Singh (PW-4) did not
support prosecution case in any manner
and, therefore, they were declared hostile.
Sri Gajendra Singh (PW-2) who also
happens to be son of deceased Nathu
Singh supported the prosecution story.

6. Trial Court after examining the
entire evidence available on record while
acquitting the accused Makrand Singh
from all the charges, held the accused
appellants guilty for offences mentioned in
para 1 of the judgment and sentenced them
accordingly.

7. In appeal, the argument advanced
by learned counsel appearing on behalf of
the appellant is that the evidence available
on record is not adequate to arrive at a
definite conclusion about involvement of
the accused appellant Sarnam Singh in the
crime and a reasonable doubt exist to
accept the prosecution story. According to
learned counsel, the Dying Declaration
(Exhibit Ka-6) is not a reliable being
having serious contradictions with the
prosecution case. According to him, the
narration of the incident by eye witness
Gajendra Singh (PW-1) is in serious
conflict with the facts given in Dying
1 All. Raghubir Singh & Ors. Vs. State
151
Declaration. In such circumstance, as per
learned counsel, the Dying Declaration
deserves to be ignored. To substantiate the
argument, he has placed reliance upon a
judgment of the Supreme Court in State of
Uttar Pradesh Vs. Madan Mohan and
others., reported in AIR 1989 SC 1519. The
other argument advanced by learned counsel
is that even the evidence adduced by the eye
witness is not reliable. According to him, lot
of contradictions exists in the version of facts
narrated by the eye witness. The eye witness
is a witness interested being a son of
deceased, as such, it was necessary to get his
version of facts corroborated by independent
witnesses, but in the case in hand, such
witnesses have not supported the prosecution
story. Hence, the accused appellant-Sarnam
Singh deserves to be acquitted from the
charges levelled against him.

8. Per contra, Km. Meena, learned
Additional Government Advocate submits
that the Dying Declaration is an important
piece of evidence and that cannot be
ignored for minor reasons. According to
her, a Dying Declaration in itself is
sufficient to record conviction of an
accused. In the case in hand, as per learned
Additional Government Advocate, the
Dying Declaration made by deceased Sri
Nathu Singh is very definite and that in
quite unambiguous terms mentions for
causing knife blows to him by Sarnam
Singh. As per the medical evidence
available on record, the stab wounds were
the cause of death. Hence, the Trial Court
rightly recorded the conviction.

9. Heard learned counsels and
examined the record and considered the
argument advanced.

10. At the threshold, it would be
appropriate to state that as per the medical
evidence available on record, there is not
doubt about the homicidal death of Sri
Nathu Singh. The question before us is
with regard to culpability of the surviving
accused Sarnam Singh. Suffice to state
that deceased Nathu Singh had 21 injuries
and his cause of death was shock and
excessive bleeding due to injuries Nos. 6,
7, 8, 13 and 17. The injuries referred
above are as follows:

"6. Punctured wound 2 1⁄2 cm x
1cm x cavity deep, on left side of chest 10
cm above left nipple.

7. Stitched wound 1 cm long in
epigastric region.

8. Stitched wound 1 cm long on
left side of abdomen 8 cm above and
lateral to the umblicus.

13. Stitched wound 2cm long on
lateral aspect right side of chest 4 cm
above sub coastal margin.

17. Punctured wound 2 cm x 1⁄2
cm x cavity deep on lateral aspect of left
chest 13 cm below left axilla."

11. All these injuries could have
been received by knife. As per the facts
stated in the FIR, the knife was with
accused Pheran Singh and he caused
injuries to Nathu Singh by it. The fact
relating to knife blows by Sarnam Singh
came before the investigation agency in
the Dying Declaration (Exhibit Ka-6). The
Dying Declaration "Exhibit Ka-6" is an
important piece of evidence in the instant
matter and that reads as under:

"Question No. 1 - What is your
name and address?

Answer - My name is Natthu
Singh s/o Sri Gulab Singh r/o Gohani,
Police Station Madhaugarh, District-
Jalaun.
152 INDIAN LAW REPORTS ALLAHABAD SERIES

Question No. 2 - Where, at what
time and by whom the injuries were
inflicted on you?

Answer - As I was coming
towards the village from my agriculture
fields and had reached near Hardev Singh
s/o Chhote Singh's house, four persons
had emerged out from the shop which used
to be run from the room of his house, and
had grabbed me on the way itself and had
begun to assault me with knives. Sri
Pheran Singh s/o Raghuraj Singh and
Sarnam Singh s/o Raghuveer Singh were
involved in assaulting with the knives
while Raghuveer Singh s/o Chatur Singh
and Himmat Singh s/o Chatur Singh kept
holding me? It was around 7.00 in the
evening and the date was 15.12.80. All the
injuries suffered by me were knife injuries.

Question No. 3 - Why did they
assault you?

Answer
-
All
the
accused
harbour animosity against me due to the
mutual legal battle, as I have emerged
victorious in the case at every level.

Question No. 4 - Do you have
anything else to state?

Sir,

Immediate action against these
people is needed otherwise they will attack
other ones as they are history-sheeters.
They had injured me with knife and had
taken away my licesned pistol also."

The statement was heard, read
and verified."

 (Authorized translation
of the original which is in Devnagari)

12. Before proceeding further, it
would also be appropriate to quote the
relevant part of the statement given by the
eye witness Gajendra Singh (PW-2) and
that reads as under:

"On15.12.80 at 5:45pm, it was
very bright there. My father and I were
returning after devi darshan. When we
reached near the pond, which was on the
path itself. Accused Feran Singh, Raghuvir
Singh, Sarnam Singh, Himmat Singh and
Makrand Singh were coming from ahead.
Four outsiders were accompanying them
whom I do not know. Feran Singh was
armed with knife. Rest were armed with
lathies.
These
persons
came
and
surrounded my father. Feran Singh and
four outsiders hit him to ground. At that
time, Feran Singh started inflicting knife
on my father. When I turned back and saw,
the witness Hammir Singh, Ramdas,
Kripal Singh and Hakim Singh were
coming. Then, I raised alarm "Run! these
persons are killing my father". When
Feran Singh was inflicting knife on my
father, rest of the accused persons were
exhorting "Come on, kill the bastard, don't
leave him alive". When the aforesaid
witnesses
reached
at
the
scene
of
occurrence the accused immediately ran
with challenge to see later on. On this, the
accused escaped northwards. My father
had a licensed pistol that he always
keeping with him. Feran Singh took it
away by cutting the belt with knife. He
took it away with cover itself."

 (Authorized translation
of the original which is in Devnagari)

13. In absolute contradiction to the
facts stated in the Dying Declaration, the
eye witness stated that the knife injuries
were caused by Pheran Singh. Beside that,
in the Dying Declaration, it is stated that
Nathu Singh was returning from his house
but as per eye witness, he was coming
from temple after Devi darshan. As per the
Dying Declaration, the incident occurred
near the house of Hardev Singh but as per
eye witness, incident took place near a
1 All. Raghubir Singh & Ors. Vs. State
153
pond situated on the way. From perusal of
the site plan, it reveals that the incident
occurred at the road in front of a pond. On
other side of the road, house of Sri Syam
Lal is situated. A primary school building
is also shown close to the pond but no
house of Hardev Singh is there in the site
plan. As a matter of fact, no other building
except the two mentioned above is situated
in close vicinity of the pond and the place
where the incident occurred.

14. On minute appreciation of
evidence brought on record, it is apparent
that the version of facts stated in the Dying
Declaration are in enormous conflict with
the facts stated by the eye witness and also
locations shown in the site plan. With this
background,
we
have
measured
evidentiary weight of Dying Declaration in
the instant matter. We are aware of the
legal position that a Dying Declaration
possess great weight and an accused of a
crime can very very be held guilty on basis
of it only without further corroborations,
but at the same time it has to be ensured
that such declaration must inspire full
confidence of the Court in its correctness.
It is always required to be kept in mind
that the Dying Declaration is accepted
with a concept of human behaviour and
tendency that a person dying will neither
speak lie nor make any effort to implicate
an innocent person in the crime. While
relying upon a Dying Declaration, Court
must be conscious to this fact that the
accused would not be having any chance
in cross examination. The primary effort
of the Court while dealing with the Dying
Declaration hence is to find out its
truthfulness and to see that it must not
suffer from any infirmity. If in a case the
prosecution version of facts differs from
the version of facts given in Dying
Declaration, then such declaration suffers
from serious infirmity and that cannot be
acted upon.

15. In State of Uttar Pradesh Vs.
Madan Mohan (supra), the Supreme
Court
refuse
to
accept
the
Dying
Declaration which was in contradiction to
the narration of facts by eye witness upon
whom the prosecution relied. In the instant
matter too out of the four eye witnesses
sited by the prosecution, three did not
support the prosecution story and whatever
stated by Gajendra Singh (PW-2) is having
huge difference in version of facts
mentioned in the Dying Declaration. As
per Dying Declaration, knife blows were
given by the accused Pheran Singh as well
as Sarnam Singh but the eye witness in
quite specific terms assigns the role of
causing knife blows to Pheran Singh only.
The location of the place of occurrence too
is not matching in both the pieces of
evidence. True it is, the Dying Declaration
was recorded by a Executive Magistrate
after obtaining a fitness certificate from a
medical practitioner who treated the
deceased but the infirmities noticed above
makes the Dying Declaration less reliable
or to say looses reliability to rest upon the
case of the prosecution entirely on that. In
view of it, in our considered opinion, the
Dying Declaration in the instant matter
deserves to be ignored.

16. Learned Additional Government
Advocate also relied upon the evidence adduced
by eye witness Gajendra Singh (PW-2) with
assertion that the participation of accused
Sarnam Singh is definite and he was certainly
sharing common intention with Pheran Singh in
killing Nathu Singh, as such, his conviction
under Section 302/34 is justified.

17. We do not find much force in this
argument too. As already stated, Sri
154 INDIAN LAW REPORTS ALLAHABAD SERIES
Gajendra Singh (PW-2) is son of
deceased Nathu Singh and beside that,
three
other
independent
witnesses
produced in evidence by prosecution did
not support the prosecution story. The
evidence adduced by Gajendra Singh is
also in huge contradiction with the facts
stated in the Dying Declaration. In
entirety of the case, it was necessary to
have some corroboration of the evidence
adduced by Gajendra Singh, son of
deceased
Nathu
Singh,
which
is
conspicuously
absent.
A
reasonable
doubt thus exists in accepting the
prosecution case.

18. For the reasons given above,
this appeal deserves acceptance. Hence
is allowed. The conviction recorded and
the sentence awarded in the judgment
impugned dated 9th September, 1983
passed
by
learned
Special
Judge/Additional Sessions Judge, Jalaun
at Orai, in Sessions Trial No. 68 of 1981
and Sessions Trial No. 6 of 1983 is set
aside. The accused Sarnam Singh is
acquitted from all the charges for which
he was tried. He has already been
released
from
State
custody
on
furnishing bail bonds and sureties, the
same are hereby discharged.
----------
(2020)1ILR A154

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 2372 of 2013

Anil Kumar @ Dhulliya ...Appellant
Versus
State of U.P. ...Opposite Party
Counsel for the Appellant:
From Jail, Atul Kumar Singh, Sri Archana
Singh (Amicus Curiae)

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -
Section 302 - Appeal against conviction.

It is settled that merely because witnesses are
close relatives of victim, their testimonies
cannot be discarded. Relationship with one of
the parties is not a factor that affects credibility
of witness, more so, a relative would not
conceal actual culprit and make allegation
against an innocent person. (para 30)

The witness testimony and the consistency of
the prosecution version as a whole. (para 35)

However, minor contradictions, inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a ground
on which the evidence can be rejected in its
entirety. (para 38)

So far as motive is concerned, it is well settled
that where direct evidence is worthy, it can be
believed, then motive does not carry much
weight. (39)

In view of facts and legal position discussed
hereinabove, we find that Trial Court has
rightly analyzed evidence led by prosecution
and found accused guilty and convicted him for
having committed murder. (para 48)

Appeal is rejected. (E-2)

List of cases cited: -

1. Dalip Singh Vs. St. of Punjab, AIR,1953, SC 364

2. Dharnidhar Vs. St. of UP (2010) 7 SCC 759

3. Ganga Bhawani Vs. Rayapati Venkat Reddy
& ors., 2013(15) SCC 298

4. Bhagalool Lodh & anr. v. St. of UP, AIR 2011 SC
2292