# Raj Deo & Ors v. State of U.P

- **Citation:** (2025) 1 ILRA 612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-08
- **Case number:** Criminal Appeal No. 165 of 2001
- **Bench:** Mrs. Sangeeta Chandra, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-deo-ors-v-state-of-u-p-52902
- **Pages:** 33

## Headnote

A. Criminal Law - Murder - Dying Declaration
- Indian Evidence Act, 1872 - Section 32 -
Code of Criminal Procedure, 1973 - Sections
161 & 162(2) - Admissibility of Statement to
Police- Under Section 162(2) CrPC, any
statement falling under Clause (1) of
Section 32 of the Indian Evidence Act is
admissible, even if recorded under Section
161 CrPC. A statement by a person, who
later
dies,
regarding
the
cause
or
circumstances of his death, is relevant and
may be treated as a dying declaration. Such
a statement, if voluntarily and truthfully
made by a person in a fit mental state, is
admissible
even
without
medical
certification. Requirement of certification is
a rule of caution and not mandatory. In the
present
case
statement
of
the
injured/deceased was recorded by the
Investigating Officer while he was admitted
in the hospital. In his statement recorded
under Section 161 Cr.P.C., he categorically
stated that the accused persons had
assaulted him with 'lathi', and the appellant
Ram Vishal was carrying a 'kulhari' and had
assaulted him with its blunt side. After his
death, the said statement-being related to
the cause of his death-is admissible in
evidence by virtue of Section 32 of the
Indian Evidence Act (Para 21, 22)
B. Criminal Law - Murder - Indian Penal
Code, 1860 - Sections 302, 147, 148 & 149
- Common Object, Common Intention -
Most important ingredient of unlawful
assembly is common object. Common
object of the persons composing that
assembly is to do any act or acts stated in
clauses
"First",
"Second",
"Third",
"Fourth" and "Fifth" of that section. In
order to fasten vicarious responsibility on
any member of an unlawful assembly the
prosecution must prove that the act
constituting an offence was done in
prosecution of the common object of that
assembly or the act done is such as the
members of that assembly knew to be
likely to be committed in prosecution of
the common object of that assembly.
What is important in each case is to find
out if the offence was committed to
accomplish the common object of the
assembly or was one which the members
knew to be likely to be committed. There
must be a nexus between the common
object and the offence committed. If an
offence is committed by a member of the
unlawful assembly in prosecution of the
common object, any member of the
unlawful assembly who was present at the
time of commission of offence and who
shared
the
common
object
of
that
assembly
would
be
liable
for
the
commission of that offence even if no
overt act was committed by him. Active
participation is not a necessary condition
under Section 149 IPC; knowledge of the
common object suffices. (Para 37)

C. Criminal Law - Murder - Deceased,
returning home after purchasing a tractor
part, was ambushed by the accused hiding
near the roadside. He was pulled off his
bicycle and assaulted with lathi-danda and
kulhari; Kulhari was used by appellant
Ram Vishal from its blunt side. Witnesses
rushed to the spot and took the injured to
the hospital, where he later succumbed to
his injuries. He sustained 21 injuries,
including a fractured skull, and death
occurred due to their cumulative effect.
Formation of unlawful assembly by the
accused persons was well-established.
Though it is not necessary for every
1 All. Raj Deo & Ors. Vs. State of U.P.
613
member of the unlawful assembly to take
active part, it was evident that all the
accused had participated in the 'marpeet',
and considering the fact that 21 injuries
were found on the person of the deceased,
it was inferred that the common object of
the unlawful assembly was to commit the
murder of the deceased by beating him to
death. The fact that after the deceased
had been assaulted by the accused
persons with 'lathi', it is thereafter the
accused
Ram
Vishal
assaulted
the
deceased on his head with the blunt side
of the 'axe' would not be sufficient to
assume/presume that the common object
of the assembly was not to cause the
death of the deceas

## Text

_Characters 0–39,563 of 104,375. This is a partial read: ask again with offset=39563 for what follows._

612 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 1 ILRA 612
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.01.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 165 of 2001

Raj Deo & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
U.P. Singh

Counsel for the Respondent:
G.A., Anil Kumar Singh, Vijai Shankar Tripathi

A. Criminal Law - Murder - Dying Declaration
- Indian Evidence Act, 1872 - Section 32 -
Code of Criminal Procedure, 1973 - Sections
161 & 162(2) - Admissibility of Statement to
Police- Under Section 162(2) CrPC, any
statement falling under Clause (1) of
Section 32 of the Indian Evidence Act is
admissible, even if recorded under Section
161 CrPC. A statement by a person, who
later
dies,
regarding
the
cause
or
circumstances of his death, is relevant and
may be treated as a dying declaration. Such
a statement, if voluntarily and truthfully
made by a person in a fit mental state, is
admissible
even
without
medical
certification. Requirement of certification is
a rule of caution and not mandatory. In the
present
case
statement
of
the
injured/deceased was recorded by the
Investigating Officer while he was admitted
in the hospital. In his statement recorded
under Section 161 Cr.P.C., he categorically
stated that the accused persons had
assaulted him with 'lathi', and the appellant
Ram Vishal was carrying a 'kulhari' and had
assaulted him with its blunt side. After his
death, the said statement-being related to
the cause of his death-is admissible in
evidence by virtue of Section 32 of the
Indian Evidence Act (Para 21, 22)
B. Criminal Law - Murder - Indian Penal
Code, 1860 - Sections 302, 147, 148 & 149
- Common Object, Common Intention -
Most important ingredient of unlawful
assembly is common object. Common
object of the persons composing that
assembly is to do any act or acts stated in
clauses
"First",
"Second",
"Third",
"Fourth" and "Fifth" of that section. In
order to fasten vicarious responsibility on
any member of an unlawful assembly the
prosecution must prove that the act
constituting an offence was done in
prosecution of the common object of that
assembly or the act done is such as the
members of that assembly knew to be
likely to be committed in prosecution of
the common object of that assembly.
What is important in each case is to find
out if the offence was committed to
accomplish the common object of the
assembly or was one which the members
knew to be likely to be committed. There
must be a nexus between the common
object and the offence committed. If an
offence is committed by a member of the
unlawful assembly in prosecution of the
common object, any member of the
unlawful assembly who was present at the
time of commission of offence and who
shared
the
common
object
of
that
assembly
would
be
liable
for
the
commission of that offence even if no
overt act was committed by him. Active
participation is not a necessary condition
under Section 149 IPC; knowledge of the
common object suffices. (Para 37)

C. Criminal Law - Murder - Deceased,
returning home after purchasing a tractor
part, was ambushed by the accused hiding
near the roadside. He was pulled off his
bicycle and assaulted with lathi-danda and
kulhari; Kulhari was used by appellant
Ram Vishal from its blunt side. Witnesses
rushed to the spot and took the injured to
the hospital, where he later succumbed to
his injuries. He sustained 21 injuries,
including a fractured skull, and death
occurred due to their cumulative effect.
Formation of unlawful assembly by the
accused persons was well-established.
Though it is not necessary for every
1 All. Raj Deo & Ors. Vs. State of U.P.
613
member of the unlawful assembly to take
active part, it was evident that all the
accused had participated in the 'marpeet',
and considering the fact that 21 injuries
were found on the person of the deceased,
it was inferred that the common object of
the unlawful assembly was to commit the
murder of the deceased by beating him to
death. The fact that after the deceased
had been assaulted by the accused
persons with 'lathi', it is thereafter the
accused
Ram
Vishal
assaulted
the
deceased on his head with the blunt side
of the 'axe' would not be sufficient to
assume/presume that the common object
of the assembly was not to cause the
death of the deceased or to infer that it
was only Ram Vishal who could be
responsible for the death of the deceased.
Once all the accused persons had formed
an 'unlawful assembly' and they had acted
in a concerted and well-planned manner
and had inflicted around 21 injuries on
vital parts of the body in furtherance of
common object established that all the
members of the unlawful assembly were
in knowledge of the common object of the
assembly, which was to cause/commit the
murder to beat Ram Jas to death. The
common object of the unlawful assembly
to cause the death of the deceased stood
established
beyond reasonable
doubt.
Trial court's judgment was based on
proper appreciation of evidence. Court
found no merit in the appeal, and
accordingly, the appeal preferred by the
appellants
was
dismissed.
Conviction
Affirmed. (Para 18, 38, 40)

Dismissed. (E-5)

List of Cases Cited:

1. Ram Bharosey Vs St. of U.P., 2010 Cri LJ 871

2. Suresh Dattu Bhojane Vs St. of Mah., (2024)
7 SCC 15

3. Gurmej Singh & ors. Vs St. of Punj., AIR 1992
SC 214

4. Lalji & ors. Vs St. of U.P., (1989) 1 SCC 437

5.
Dharmendra
Kumar
Vs
St.
of
M.P.,
MANU/SC/0566/2024

6. Harendra Rai Vs St. of Bihar & ors.,
MANU/SC/0905/2023

7.
Manjit
Singh
Vs
The
St.of
Pun.,
MANU/SC/1195/2019

8. Kuldip Yadav & ors. Vs St. of Bihar,
MANU/SC/0390/2011

9. Chanakya Dhibar (Dead) Vs St. of W.B. &
ors., MANU/SC/1096/2003

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J. & Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard Shri U.P.Singh, learned
counsel for the appellants, Shri U.C.
Verma, learned A.G.A. for the State, Shri
Vijai Shankar Tripathi, learned counsel
appearing for the complainant/informant
and perused the record.

2. This criminal appeal has been
preferred by the appellants, namely, Raj
Deo, Ram Singar, Ram Vishal, Ram
Bodh and Surya Bhan under Section
374(2) of the Cr.P.C. against the judgment
and order of the trial court dated
05.03.2001 passed by IIIrd Additional
Sessions Judge, Sultanpur in Sessions Trial
No. 222 of 1992 (State vs. Raj Deo and
others), arising out of Case Crime No. 263
of 1991, under Sections 147, 148, 302/149
I.P.C., Police Station Lambhua, District
Sultanpur, whereby the appellant- Ram
Vishal has been convicted for committing
offence under Section 148 and 302/149
I.P.C. and rest of the appellants have been
convicted for committing offence under
Section 147 and 302/149 I.P.C. and have
been sentenced with maximum term of
rigorous life imprisonment' pertaining to
614 INDIAN LAW REPORTS ALLAHABAD SERIES
offence under Section 302/149 I.P.C. with
fine of Rs. 5000/- along with default clause.

3. Shri U.P. Singh, learned counsel
representing the appellants submits that
appellant no.1/Raj Deo and appellant
no.4/Ram Bodh had died on 13.02.2015
and 09.07.2012 respectively during the
pendency of this appeal. This submission of
learned counsel for the appellant has also
been corroborated by the report of the
C.J.M., Sultanpur of date 30.09.2019. Vide
order of date 13.03.2024 passed by this
Court, the proceedings of this appeal have
already been abated with regard to
appellant no.1/Raj Deo and appellant
no.4/Ram Bodh. Thus, the instant appeal
survives only for appellants no.2, 3 and 5,
namely, Ram Singar, Ram Vishal and
Surya Bhan.

4. The necessary facts required for
disposal of the instant appeal appears to be
that, an F.I.R. was lodged by the informant
Raj Mani at Police Station Kadipur at 19:25
hours on 10.09.1991 alleging that his
nephew Ramjas S/o Babban Mishra was
returning from Lambhua market at about
5:00 pm. after purchasing spare parts of a
tractor on bicycle and he was intercepted
by the accused persons Raj Deo, Ram
Singar, Ram Vishal, Ram Bodh and Surya
Bhan at Lambhua-Durgapur road, who
were armed with 'lathi-danda' and Axe
(kulhari)
and
assaulted
him
brutally
whereby he sustained grievous injuries. On
an alarm being raised, Radhey Shyam S/o
Badri, Ram Jiyawan S/o Lal Mohan,
Mahendra S/o Raj Mani and Ram Baran
Tiwari S/o Ram Abhilakh arrived at the
scene of the crime and challenged the
assailants. The deceased, who at that point
of time was injured, was taken to the
hospital on a 'rickshaw' by Ram Baran and
Mahendra Kumar and at the time of his
admission in the hospital he was bleeding
heavily.

5. On the basis of this written
information, an F.I.R. at Case Crime No.
263 of 1991, under Sections 147, 148, 323
and 308 I.P.C. was registered at Police
Station
Kadipur,
District
Sultanpur,
substance of which was entered in the
General Diary of the police station.

6. The deceased Ram Jas, who at
that point of time was injured, was
examined
by
doctor
R.P.
Singh
on
10.09.1991
at
6:45
pm.
at
C.H.C.,
Lambhua,
Sultanpur
and
he
noted
following injuries on his person.

(1) Contusion at right side
of the parietal region 4cm x 3cm.
Reddish in colour 6cm above the
right ear. Bleeding from the right
nose is present. Patient is drousy.
Right pupil is semi dilated.
(2) Contusion at left upper
arm 7cm x 2cm .2cm below from
left shoulder joint reddish in colour.
(3) Abraded contusion at
posterior aspect of the right elbow
joint 4cm x 2cm. Oozing of the
blood is present.
(4) Multiple contusions all
over the back of the Patient in area
of chest region size 14cm x 2cm.
Each reddish in colour.
(5) Lacerated wound on the
right leg 6cm x 2 cm x bone deep.
Fresh bleeding present.

Opinion:- All the injuries
are fresh caused by blunt object.
Patient kept under observation
because he is having head injury xray skull, right elbow joint and
right leg advised.
1 All. Raj Deo & Ors. Vs. State of U.P.
615
7. During the course of treatment,
the injured Ram Jas died and information
pertaining to his death was sent to the
concerned police station whereon the
investigation of the case was amended in
Section 302 of the I.P.C. The inquest of the
body of the deceased was prepared and
after necessary paper work the dead body
of the deceased was sent in sealed
condition for postmortem.

8. The postmortem of the body of
the deceased was performed by Doctor
S.M.M. Naqvi at district hospital Sultanpur
on 11.09.1991 at 12:00 noon. The body of
the deceased was found of good built.
Rigor mortis was present in all four limbs,
no signs of decomposition were found.

Following
ante-mortem
injuries
were noted by the doctor at the time of
postmortem:-

(i) Abraded contusion 7.5 cm. x 5
cm. on right side of head.
(ii) Abrasion 1 cm. x 0.8 cm. on
right zygomatic process.
(iii)
Multiple
abrasions
on
Posterior Lateral aspect of upper limb up
to palm.
(iv)
Multiple
contusions
on
Posterior aspect of left upper limb up to
palm.
(v) Lacerated wound 0.5 cm. x 0.5
cm. muscle deep on right elbow joint.
(vi) Multiple contusions crossing
each other in an area of 30 cm. x 13 cm. on
right side back of chest 7 cm. away from
mid line.
(vii) Contusions 11 cm. x 1.5 cm. on
right side of back 8 cm. away from mid line.
(viii) Multiple contusions crossing
each other 28 cm. x 13 cm. over right side
of right hip.
(ix) Multiple abrasions in an area
of 04 cm. x 01 cm. on right side of chest 7
cm. below from right nipple at 8'o clock
position.
(x) Multiple contusions crossing
each other 26 cm. x 8 cm. on front aspect of
right thigh 05 cm. below Rt. illiac crest.
(xi) Multiple contusions 8 cm. x 5
cm. on mid of left thigh.
(xii) One stitched wound 5 cm. on
right leg 7 cm. below right knee joint.
(xiii) Abrasion 2 cm. x 0.5 cm. on
mid of right leg.
(xiv) Lacerated wound 2 cm. x 0.5
cm. muscle deep on lower part of right leg
5 cm. below knee.
(xv) One abrasion 1.5 cm. x 0.8 cm.
on the right leg.
(xvi) One lacerated wound 1 cm. x
0.5 cm. muscle deep on right toe.
(xvii) Abrasion 2.5 cm. x 1 cm. at
medial aspect of left leg 3 cm. below left
knee.
(xviii) One lacerated wound 3 cm. x
1 cm. x muscle deep on right foot 9 cm.
below the knee joint.
(xix) One lacerated wound 3 cm. x
1 cm. muscle deep on left leg 6 cm. below
above injury.
(xx) Multiple abrasions in an area
of 5 cm. x 4 cm. at medial aspect of left leg
4 cm. above left lateral malleolus.
(xxi) Contusions 3.5 cm. x 2 cm. on
the base of left toe.

Internal Examination
On internal examination the scalp
was found congested. Skull was found
fractured on right side of parietal region
subdural hematoma was found on the right
side of cerebral hemisphere. The brain was
found congested. Heart was found full of
blood and was weighing 250 grams. The
bladder was empty.
616 INDIAN LAW REPORTS ALLAHABAD SERIES
In the opinion of the doctor, the
death of the deceased was caused due to
'coma and shock' as a result of ante-mortem
injuries.

9. The investigating officer of the
case also recorded the statement of the
injured (deceased) Ram Jas under Section
161 Cr.P.C., wherein he stated that when on
the relevant day and time when he was
going to his house with the tractor part he
was assaulted by the accused persons with
'lathi-danda and 'kulhari' and accused Ram
Vishal assaulted him with 'kulhari' while
other accused persons assaulted him with
'lathi'. It is also stated by him that Ram
Vishal was assaulting him with the back of
the 'kulhari' (not with the sharpen side of
it).

10. The investigating officer
prepared the site plan and also recorded the
statement of various prosecution witnesses
and
after
finding
sufficient
material
submitted charge sheet against all the
accused persons under Sections 147, 148,
302 and 323 I.P.C.

11. The trial court framed the
charges under Section 148 and 302 read
with Section 149 I.P.C. against appellant-
Ram Vishal, while the charges under
Section 147 read with Section 302/149
I.P.C. were framed against the other
accused persons, namely, Raj Deo, Ram
Singar, Ram Bodh and Surya Bhan, which,
they denied and claimed trial.

12. The prosecution in order to
prove
its
case
has
presented
P.W.-
1/Informant, P.W.-2/Ram Jiyawan Mishra,
P.W.-3/Ram
Baran
Tiwari,
P.W.-
4/Mahendra Kumar Mishra (eye witness),
P.W.-5/Dr. R.P. Singh (doctor who has
examined the deceased when he was
injured), P.W.-6/Dr. S.M.M. Naqvi (doctor
who has conducted the postmortem), P.W.-
7/S.I. Purushottam Mishra, who conducted
the investigation and the first investigating
officer, P.W.-8/Ramakant Sharma, who has
filed charge sheet.

13. Apart from the abovementioned oral evidence, the prosecution
has also relied on documentary evidence
e.g.
written
Tehrir,
Exhibit-ka-1,
panchnama, Exhibit-ka-2, statement of the
deceased recorded under Section 161
Cr.P.C., Exhibit-ka-3, Injury report of the
deceased, Exhibit-ka-5, Photo lash, Chitthi
R.I., Chitthi C.M.O., Exhibit-ka-11, Letter
to
R.I.,
Exhibit-ka-12,
Sample
Seal,
Exhibit-ka-13, Site Plan, Exhibit-ka-14,
Chik F.I.R., Exhibit-ka-16, G.D. kayami,
Exhibit-ka-17, postmortem report of the
deceased,
Exhibit-ka-7,
charge
sheet,
Exhibit-ka-15.

14. After conclusion of the
evidence of the prosecution, the statement
of the appellants/accused were recorded
under Section 313 Cr.P.C., wherein they
denied all the evidence produced by the
prosecution and claimed that they have
been falsely implicated in this case.

15. The trial court after hearing
learned counsel for the parties found the
case of the prosecution proved beyond
reasonable doubt and convicted the accused
Ram Vishal under Section 148 I.P.C. and
other co-accused persons under Section 147
I.P.C. while convicting all the accused
persons under Section 302 I.P.C. with the
help of Section 149 I.P.C. in the manner
described in the 2nd paragraph of this
judgment.

16. Learned counsel for the
appellants while challenging the impugned
1 All. Raj Deo & Ors. Vs. State of U.P.
617
judgment and order of the trial court,
submits that the trial court has committed
manifest illegality in appreciating the
evidence available on record and has
passed the judgment of conviction only on
the basis of 'surmises and conjectures'.

While drawing the attention of this
Court towards the testimony of four
prosecution eye witnesses, it is submitted
that if the evidence of these prosecution
witnesses is perused in totality, it would
emerge that they may not be the eye
witness of the alleged crime and it is
submitted that it is hard to digest that none
of the prosecution witness has come
forward to save the deceased and none of
them has sustained any injury in the
process while their close relative was being
done to death in front of them.

It is further submitted that there
were only five accused persons, as per the
prosecution story, on the spot, while there
were four prosecution witnesses and the
accused persons were not armed with any
deadly weapon. Therefore, the conduct of
the witnesses in not making any attempt to
save the deceased would suggest that they
were not present at the spot and they have
not seen any occurrence and a blind murder
has been attributed to the appellants on the
basis of prior enmity.

It is also submitted that even if the
case of the prosecution is taken on its face
value, it would emerge that the object of
the unlawful assembly was not to cause the
death of the deceased, as all the accused
persons were carrying simple household
articles which could be used as weapon
also. It is highlighted that 'kulhari' and
'lathi' is a common article found in every
household in village and, thus, the evidence
of the prosecution would itself suggest that
there was no common object of the alleged
unlawful assembly to cause the death of the
deceased.
It is further submitted that the trial
court has committed an illegality in relying
on the statement of the deceased recorded
by the investigating officer under Section
161 Cr.P.C. and the manner in which the
statement is shown to have been recorded,
could not be believed as it has come in the
evidence of the doctor that after sustaining
the injury on his head, the deceased might
have gone in 'coma' at once, thus, he ould
not be in a position to give any statement.

17. It is also submitted that when a
weapon is stated to have been used by the
accused person, it would deemed to have
been used in its natural way and, thus,
when it is stated that 'kulhari' has been used
by appellant- Ram Vishal, the same would
be deemed to have been used from its
sharper side and no injury has been caused
to the deceased, which could be attributed
to 'kulhari' and, thus, there is major
contradiction in the ocular and medical
evidence.
It
is
also
argued
with
considerable force that Chhotelal who is
shown to be coming with the deceased on
bicycle has not been presented as a witness
by the prosecution, rendering the case of
prosecution as false.

It is next submitted that even if it is
believed that the accused persons had formed
an unlawful assembly, the object of the said
assembly could only be to inflict minor
injuries, as except the one injury sustained by
the deceased on his head, other injuries have
been found simple and the injury which has
been sustained on head could only be
attributed to the appellant Ram Vishal and,
hence, it could not be said that the common
object of the assembly was to cause the death
of the deceased.
618 INDIAN LAW REPORTS ALLAHABAD SERIES
It is also submitted that the motive,
which has been placed for the purpose of
commission of crime, is very weak and
there
are
major
contradictions,
embellishments, inherent weaknesses in the
evidence of the prosecution witnesses and
it was a case wherein the reasonable doubt
was emerging out of the evidence of the
prosecution tendered before the trial court
and the trial court has committed a mistake
in convicted the appellants. Thus, the
impugned judgment and order of the trial
court be set-aside and appellants be
acquitted of all the charges framed against
them.

18. Learned A.G.A. on the other
hand submits that there was enmity existing
between the two families which is an
admitted fact. The deceased had gone on
the relevant day to purchase a part of the
tractor and it was known to the accused
persons that he would return to his home
and, thus, they laid a trap and waited for his
return and when he was coming back to his
home with Chhotelal he was assaulted by
the accused persons/appellants who were
armed with 'lathi' and 'kulhari'.

It is further submitted that from the
start, it is the case of the prosecution that
accused/appellant Ram Vishal has assaulted
the deceased on his head with the blunt side
of the 'axe' and the medical evidence
corroborates this fact.
It is also submitted that the
deceased has sustained as many as 21
injuries and having regard to the manner in
which the assault has been made, the only
conclusion that could be drawn is that the
object of the unlawful assembly was to
cause the death of the deceased.
It is next submitted that there are
no major contradictions in the evidence of
the prosecution eye witnesses. They were
natural witnesses and their testimony could
not be doubted only on the score that they
are related to the deceased as they were
natural witnesses. The spot has been fixed
by the witnesses and, thus, no illegality has
been committed by the trial court in
convicting the appellants.

Learned A.G.A. representing the
State has placed reliance on the following
law reports:

(1) Ram Bharosey Vs. State of U.P.
reported in 2010 CRI.L.J. 871.
(2) Suresh Dattu Bhojane Vs. State
of Maharashtra reported in (2024) 7 SCC
15.
(3) Gurmej Singh and others Vs
State of Punjab reported in AIR 1992 SC
214.
(4) Lalji and Others Vs. State of
U.P. reported in (1989) 1 SCC 437.

19. Before proceeding further, in
the direction of appreciating the evidence
of the prosecution witness(s) vis-a-vis the
submissions raised by learned counsel for
the appellants, it is in the interest of justice
to recollect the evidence of the prosecution
witnesses.

P.W.-1/Raj Mani Mishra, who is
the informant of this case, is not the eye
witness of the incident and his evidence is
only with regard to the fact that he had sent
the deceased to purchase a part of the
tractor and thereafter he had gone to his
agricultural
field
situated
in
Village
Chaukia where he was informed by his
servant about the incident and, thereafter,
he is stated to have arrived at the scene of
crime where he was informed about the fact
that his brother has been taken to the
hospital and thereafter he arrived at the
hospital and the whole incident has been
1 All. Raj Deo & Ors. Vs. State of U.P.
619
narrated to him by his son Mahendra
Kumar Mishra/P.W.-4.

P.W.-2/Ram Jiyawan Mishra, has
claimed himself to be the eye witness of the
incident and according to him, he at the
relevant point of time was in his sugarcane
field, when he heard an alarm raised by the
deceased he immediately arrived and has
witnessed the whole incident. He has given
detailed account of the incident in terms
that all accused persons were assaulting the
deceased in front of his eyes and accused
persons Raj Deo, Ram Singar, Surya Bhan
and Ram Bodh were possessing 'lathi' while
accused Ram Vishal was having a 'kulhari'
in his hand and also that it was Ram Vishal
who had assaulted the deceased from the
blunt side of the accused on his head.
According to him, the deceased was taken
to the hospital by P.W.-3/Ram Baran Tiwari
and P.W.-4/Mahendra Kumar Mishra.

P.W.-3/Ram Baran Tiwari has also
claimed to have seen the incident, as at the
relevant point of time he was going to
Lambhua on a rickshaw and when he arrived
near the scene of crime, he saw the accused
persons assaulting the deceased and except
Ram Vishal who is possessing a 'kulhari', the
other accused persons were armed with 'lathi
and Ram Vishal assaulted the deceased with
the blunt side of the 'axe' on his head while
the other persons assaulted the deceased with
'lathi'. He also claimed to have scolded the
accused persons pertaining to the assault
given by them to the deceased. He also stated
to have taken the deceased to hospital on his
rickshaw with the help of P.W.-4/Mahendra
Mishra and also that the investigating officer
(daroga ji) has taken the statement of the
deceased (who at that point of time was
injured) in the presence of the doctor and
thereafter the deceased had died that very
night.
P.W.-4/Mahendra Kumar Mishra
is the paternal cousin of the deceased. He
has also claimed to have seen the incident,
as at the relevant point of time he was in
his field and it was there he heard alarms
raised by the deceased as the deceased was
returning from Lambhua to his home. He
also stated to have seen the assault made by
the accused Ram Vishal with 'kulhari' from
its blunt side on the head of the deceased
while the other accused persons were
assaulting with 'lathi' possessed by them.
He also claimed to have taken the deceased
to the hospital with the help of P.W.3/Ram
Baran Tiwari and also that the deceased had
regained consciousness in the night and his
statement was recorded by the investigating
officer.

P.W.-5 is the Dr. R.P. Singh, who
has examined the injuries sustained by the
deceased when he was injured and these
injuries have been recorded in this
statement at an appropriate place.

P.W.-6/Dr. S.M.M. Naqvi has
stated to have conducted the postmortem of
the deceased at 12:00 pm. on 11.09.1991
and also proved the postmortem report and
according to him the death of the deceased
was caused on account of 'shock and
hemorrhage' as a result of antemortem
injuries.

P.W.-7/S.I. Purushottam Mishra
is the first investigating officer of the case
who has proved to have recorded the
statement of the deceased under Section
161 Cr.P.C. and proved a copy of the same
available on record as Exhibit-ka-8. He also
stated to have prepared necessary papers
for the postmortem of the deceased
including inquest report and also to have
sent the body of the deceased for
postmortem.
620 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.-8/S.H.O. Ramakant Sharma
is the third investigating officer of this case,
who
has
taken
the
charge
of
the
investigation,
as
earlier
investigating
officers, namely, Purushottam Mishra and
Shri Ashutosh Sharma were transferred to
some other police station. He has proved
the lodging of the F.I.R. as well as the
signatures and the proceedings done by the
earlier
investigating
officer
S.I.
Purushottam Mishra and Shri Ashutosh
Sharma.

20. Having heard learned counsel
for the parties and having perused the
record, it is evident that the case of the
prosecution in nutshell was that on
10.09.1991 at about 5:00 pm. in the
evening the deceased was returning to his
home after purchasing a part of the tractor,
which had gone out of order and when he
arrived at 'Lambhua-Durgapur road', the
appellants armed with 'lathi-danda' and
'kulhari' were waiting for him and started
assaulting him with 'lathi-danda' and
'kulhari'. The 'kulhari' (axe) has been used
by the appellant- Ram Vishal from its blunt
side. On an alarm raised, the witnesses
Radhey Shyam, Ram Jiyawan, Mahendra,
Ram Baran Tiwari had arrived at the scene
of crime and had taken the deceased, who
at that point of time was injured, to the
hospital on a 'rickshaw' and during the
course of treatment the deceased has
succumbed to the injuries.

21. So far as the submission of
learned counsel for the appellants with
regard to the uses of axe/kulhari by
accused-appellant Ram Vishal and also that
there are contradictions in the medical and
ocular testimony is concerned, it is to be
recalled that though, in the first information
report, it has been stated that the appellants
have assaulted the deceased with 'lathidanda' and 'kulhari', however, the statement
of the injured was recorded by the
investigating officer while he was admitted
in the hospital and he in his statement
recorded under Section 161 Cr.P.C. has
categorically stated that the other coaccused persons had assaulted him with
'lathi' while the appellant Ram Vishal was
carrying a 'kulhari' and was assaulting him
with the blunt side of the 'kulhari'. This
statement of the injured/deceased Ram Jas
recorded while he was admitted in the
hospital. After his death, it is admissible in
evidence by virtue of Section 32 of the
Indian Evidence Act as the same is related
to the cause of his death. In this regard the
law laid down by Hon'ble Supreme Court
in Dharmendra Kumar Vs. State of
Madhya
Pradesh
reported
in
MANU/SC/0566/2024 and in Harendra
Rai Vs. The State of Bihar and Ors.
reported in MANU/SC/0905/2023 may be
recalled, which is reproduced as under:-

Honb'le
Supreme
Court
in
Dharmendra Kumar Vs. State of Madhya
Pradesh reported in MANU/SC/0566/2024
has held as under :

"64. Before we proceed
further,
it
would
be
apt
to
recapitulate Section 32(1) of the
IEA, whereunder the statement
made by a person, who is dead, as
to the cause of his death or as to
any of the circumstances of the
transaction which resulted in his
death, is relevant and admissible,
irrespective of the fact that such
person at the time of making the
statement
was
not
under
expectation of death.
65. Section 161 Code of
Criminal Procedure empowers the
Police to examine orally any
1 All. Raj Deo & Ors. Vs. State of U.P.
621
person who is acquainted with the
facts and circumstances of the case
under investigation. The Police
may reduce such statement into
writing also. Section 162(1) Code
of
Criminal
Procedure,
nonetheless, mandates that no
statement made by any person to a
Police
Officer,
if
reduced
to
writing, be signed by the person
making it, nor shall such statement
be used in evidence except to
contradict a witness in the manner
provided by Section 145 of the IEA.
However, Sub-section (2) of Section
162 Code of Criminal Procedure
carves out an exception to Subsection (1) as it explicitly provides
that nothing in Section 162 shall be
deemed to apply to any statement
falling within the ambit of Clause
(1) of Section 32 of the IEA. In
other words, a statement made by a
person who is dead, as to the cause
of his death or to the circumstances
of the transaction which resulted in
his death, to a Police Officer and
which has been recorded Under
Section 161 Code of Criminal
Procedure, shall be relevant and
admissible,
notwithstanding
the
express bar against use of such
statement in evidence contained
therein. In such eventuality, the
statement recorded Under Section
161 Code of Criminal Procedure
assumes the character of a dying
declaration. Since extraordinary
credence has been given to such
dying declaration, the court ought
to
be
extremely
careful
and
cautious
in
placing
reliance
thereupon. There are a catena of
decisions of this Court which lend
support to the inter-play between
provisions of the Code of Criminal
Procedure
and
the
IEA,
as
explained above.
67. The Constitution Bench
in
Laxman
v.
State
of
Maharashtra
MANU/SC/0707/2002
:
2002:INSC:352 : (2002) 6 SCC
710 has authoritatively ruled that:
3. ... ........But where the
eyewitnesses
state
that
the
deceased was in a fit and conscious
state to make the declaration, the
medical opinion will not prevail,
nor can it be said that since there is
no certification of the doctor as to
the fitness of the mind of the
declarant, the dying declaration is
not acceptable. A dying declaration
can be oral or in writing and any
adequate method of communication
whether by words or by signs or
otherwise will suffice provided the
indication is positive and definite.
In most cases, however, such
statements are made orally before
death ensues and is reduced to
writing
by
someone
like
a
Magistrate or a doctor or a police
officer.
... ...
What is essentially required
is that the person who records a
dying declaration must be satisfied
that the deceased was in a fit state
of mind. Where it is proved by the
testimony of the Magistrate that the
declarant was fit to make the
statement even without examination
by the doctor the declaration can
be acted upon provided the court
ultimately holds the same to be
voluntary
and
truthful.
A
certification by the doctor is
essentially a Rule of caution and
622 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore the voluntary and truthful
nature of the declaration can be
established otherwise.
68. It is important in this
case
to
appreciate
that
the
Investigating Officer recorded the
statement instantly, a day after the
incident. He has categorically
stated that the medical report did
not mention that the condition of
the declarant, Tularam, was serious
in
nature.
More
importantly,
Tularam was able to convey his
statement properly. Furthermore,
on perusal of the statement, it is
clear that the declarant Tularam
was in a fit condition as not only
did he properly explain the incident
but has also markedly specified the
role of the Appellant. That apart,
the injuries found during the postmortem examination conducted by
P.W.13 and P.W.15 have duly
corroborated
the
statement
of
deceased Tularam.
69.
From
the
above
discussion, it is manifest that the
mere non- obtainment of a medical
fitness certificate will not deter this
Court from considering a properly
recorded statement Under Section
161 Code of Criminal Procedure to
be a dying declaration."
Hon'ble Supreme Court in
Harendra Rai Vs. The State of
Bihar
and
Ors.
reported
in
MANU/SC/0905/2023 has held as
under :
"91. Now further issue
crops up about the treatment of the
FIR/Bayan
Tahriri
as
dying
declaration and in this respect
various earlier pronouncements of
this Court have clarified the
position of law that the statement
by an injured person recorded as
FIR can be treated as a dying
declaration and such a statement is
admissible Under Section 32 of the
Indian Evidence Act. It was also
held that the dying declaration
must not cover the whole incident
or
narrate
the
case
history.
Corroboration is not necessary for
this situation; a dying declaration
can be the sole basis for conviction.
92. In the case of Munnu
Raja and Anr. v. State of M.P.
MANU/SC/0174/1975 : (1976) 3
SCC
104,
the
following
observations are relevant:
Para 5. In regard to these
dying declarations, the judgment of
the Sessions Court suffers from a
patent infirmity in that it wholly
overlooks the earliest of these
dying declarations, which was
made by the deceased soon after
the incident in the house of one
Barjor Singh. The second statement
which has been treated by the High
Court as a dying declaration is Ex.
P-14, being the FIR which was
lodged by the deceased at the
police station. The learned Sessions
Judge probably assumed that since
the statement was recorded as a
FIR, it could not be treated as a
dying
declaration.
In
this
assumption, he was clearly in error.
After making the statement before
the
police,
Bahadur
Singh
succumbed to his injuries and
therefore the statement can be
treated as a dying declaration and
is admissible Under Section 32(1)
of the Evidence Act. The maker of
the statement is dead and the
statement relates to the cause of his
death.
1 All. Raj Deo & Ors. Vs. State of U.P.
623
Para 6. The High Court
has held that these statements are
essentially true and do not suffer
from any infirmity. It is well settled
that though a dying declaration
must be approached with caution
for the reason that the maker of the
statement cannot be subject to
cross-examination, there is neither
a Rule of law nor a Rule of
prudence which has hardened into
a Rule of law that a dying
declaration cannot be acted upon
unless it is corroborated...
***
Para 10. We are in full
agreement with the High Court that
both of these dying declarations are
true. We are further of the opinion
that considering the facts and
circumstances of the case, these
two statements can be accepted
without corroboration. Bahadur
Singh was assaulted in broad day
light and he knew the Appellants.
He did not bear any grudge
towards them and had therefore no
reason to implicate them falsely.
Those who were in the constant
company of Bahadur Singh after
the assault, had also no reason to
implicate the Appellants falsely.
They bore no ill-will or malice
towards the Appellants. We see no
infirmity attaching to the two dying
declarations which would make it
necessary
to
look
out
for
corroboration.

93. This Court in the case
of Ram Bihari Yadav v. State of
Bihar
and
Ors.
MANU/SC/0302/1998 : (1998) 4
SCC 517, has discussed the law in
paragraph 6 as follows:
Para 6. The law relating to
dying declaration- the relevancy,
admissibility, and its probative
value- is fairly settled. More often
the expressions 'relevancy and
admissibility' are used as synonyms
but their legal implications are
distinct and different for more often
than not facts which are relevant
are not admissible; so also facts
which are admissible may not be
relevant, for example, questions
permitted to be put in crossexamination to test the veracity or
impeach the credit of witnesses,
though not relevant are admissible.
The probative value of the evidence
is the weight to be given to it which
has to be judged having regard to
the facts and circumstances of each
case. In this case, the thrust of the
submission relates not to relevancy
or admissibility but to the value to
be given to Exh.2. A dying
declaration made by a person who
is dead as to cause of his death or
as to any of the circumstances of
the transaction which resulted in
his death, in cases in which cause
of his death comes in question, is
relevant Under Section 32 of the
Evidence Act and is also admissible
in
evidence.
Though
dying
declaration is indirect evidence
being a specie of hearsay, yet it is
an exception to the Rule against
admissibility of hearsay evidence.
Indeed, it is substantive evidence
and like any other substantive
evidence requires no corroboration
for forming basis of conviction of
an Accused. But then the question
as to how much weight can be
attached to a dying declaration is a
question of fact and has to be
624 INDIAN LAW REPORTS ALLAHABAD SERIES
determined on the facts of each
case.
94.
We
may
usefully
reproduce the relevant paragraphs
of the judgment of this Court in the
case of Suresh Chandra Jana v.
State of West Bengal and Ors.,
reported in MANU/SC/0997/2017 :
(2017) 16 SCC 466, which reads as
follows:
32. It would not be out of
place to discuss the importance of
dying declaration Under Section 32
of the Evidence Act. The principle
underlying Section 32 of the
Evidence Act is 'Nemo moriturus
praesumitur mentire' i.e., man will
not meet his maker with a lie in his
mouth. Dying declaration is one of
the exceptions to the Rule of
hearsay. It is well settled that there
is no absolute Rule of law 'that the
dying declaration cannot form the
sole basis of conviction unless it is
corroborated'. The Rule requiring
corroboration is merely a Rule of
prudence [refer Paniben (Smt.) v.
State
of
Gujarat,
MANU/SC/0346/1992 : (1992) 2
SCC 474; Munnu Raja and Anr. v.
State
of
Madhya
Pradesh,
MANU/SC/0174/1975 : (1976) 3
SCC 104; State of U.P. v. Ram
Sagar Yadav, MANU/SC/0118/1985
: (1985) 1 SCC 552; Ramawati
Devi
v.
State
of
Bihar,
MANU/SC/0135/1983 : (1983) 1
SCC 211].