# Rajesh Sharma & Anr v. State Of U.P

- **Citation:** (2016) 5 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Vikram Nath, Pratyush Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-sharma-anr-v-state-of-u-p-43999
- **Pages:** 20

## Headnote

Criminal Appeal - Murder - Section 302/34 IPC - Conviction based on dying declaration - No
eyewitness - Alleged kidnapping and burning - Oral dying declaration - Statement under Section 161
Cr.P.C. - Magistrate-recorded dying declaration - Fitness of declarant - Mental condition - Anti-timed FIR
- Delay in lodging FIR - Interested witnesses - Enmity due to matrimonial disputes - Circumstantial
evidence - Chain of circumstances - Accidental burns - Kerosene stove - Burden of proof - Benefit of
doubt - Appreciation of evidence by appellate court - Acquittal.

## Text

_Characters 0–39,988 of 61,660. This is a partial read: ask again with offset=39988 for what follows._

912 INDIAN LAW REPORTS ALLAHABAD SERIES
29. Accordingly the appeal is allowed.

30. The judgment and order of conviction and sentence dated 30.06.2015, passed by
Additional Sessions Judge / F.T.C., Jalaun at Orai, in S.T. No. 113 of 2012 (State vs. Kishor),
arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506, 376 I.P.C. and S.T. No.
124 of 2012 (State vs. Nripati), arising out of Case Crime No. 52 of 2012, under Sections 323, 504,
506 I.P.C., Police Station Kotra, District Jalaun, as against the present appellant, is hereby set aside.

31. The appellant namely Kishor is in jail. He shall be released forthwith in this case.
However, the appellant is directed to comply with the provision of Section 437A Cr.P.C.

32. Let a certified copy of this judgment be sent to the court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2016

BEFORE

THE HON'BLE VIKRAM NATH, J.
THE HON'BLE PRATYUSH KUMAR, J.

Criminal Appeal No.- 6133 Of 2011
&
Criminal Appeal No.- 6322 Of 2011

Rajesh Sharma & Anr. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
Rajul Bhargava

Counsel for the Respondent:
Govt. Advocate, D.K.Srivastava, K.P. Pandey

Criminal Appeal - Murder - Section 302/34 IPC - Conviction based on dying declaration - No
eyewitness - Alleged kidnapping and burning - Oral dying declaration - Statement under Section 161
Cr.P.C. - Magistrate-recorded dying declaration - Fitness of declarant - Mental condition - Anti-timed FIR
- Delay in lodging FIR - Interested witnesses - Enmity due to matrimonial disputes - Circumstantial
evidence - Chain of circumstances - Accidental burns - Kerosene stove - Burden of proof - Benefit of
doubt - Appreciation of evidence by appellate court - Acquittal.

1. Facts giving rise to the present appeals may be summarized,That on 01.05.2008 at 11.30 AM, Pawan
Sharma gave a written report at outpost Krishna Nagar police station Kotwali Mathura stating therein that on
that day his father Munna Lal Sharma had left the house in the morning to visit Krishna Janam Bhoomi for
5 All. Rajesh Sharma & Anr. Vs State Of U.P.

913
worshiping, from there he proceeded to Bhuteshwar on the way in front of Shriji Baba Ashram, he was
intercepted by Rajesh Sharma and his two sons Shiv Kumar and Punit, those three came on motorcycle and at
about 10.00 AM, forced his father to sit on the motorcycle and took him to their house. Near their house they
poured kerosene oil on the head of his father and burnt him, whole body of his father was burnt, about which
he received information on mobile, thereupon he along with his brother Varun Sharma and Arun Sharma
reached Agrasen Nagar and saw their father was tossing around in pain on the road. They took him to the
District Hospital, on enquiry his father told him that he was forcibly taken by Rajesh Sharma (father-in-law of
Varun Sharma) and his two sons and near their house he was burnt with the help of kerosene oil.
 On this check FIR was scribed, Case Crime No. 288 of 2008, under Section 307 IPC was registered and
investigation was entrusted to Sub Inspector Sunil Kumar Sharma, who immediately recorded the statement
of scribe of check FIR and the first informant, he also recorded the statement of injured Munna Lal Sharma,
inspected the spot, took into his possession burnt clothes of Munna Lal Sharma. He started searching for the
accused persons, thereafter investigation was transferred to Inspector Kotwali Sri C.L. Sharma, who
conducted the further investigation and found the involvement of Sonu @ Mukesh in the crime also. During
treatment injured Munna Lal Sharma died at Agra, after completion of investigation charge-sheet against
three named accused was submitted, thereafter separate charge-sheet against Sonu @ Mukesh was
submitted.The case of Rajesh Sharma, Shiv Kumar and Punit was committed to the Court of Session on
01.07.2008 and case of Sonu @ Mukesh was committed to Court of Session on 23.10.2010. The case of Punit
@ Pramendra was separated on 7th October, 2008 for enquiring about his juvenility to the Juvenile Justice
Board, Mathura. The present appellants stood for trial before the Court of Session, whereby they were
charged under Sections 302/34 IPC, they denied the charge and claimed to be tried.(Para 5-8)

2. Learned counsel appearing for the appellants has submitted that in the present case there are three dying
declarations, first is oral as claimed in the FIR, second is the statement allegedly recorded by the Investigating
Officer and 3rd is the dying declaration recorded by the Magistrate at Agra. He further submits that none of
the dying declaration is above board, in the first two dying declarations the name of Sonu @ Mukesh does not
find place, in the 3rd dying declaration his name was added, all the dying declarations were fabricated on the
behest of first informant and Varun P.W.2, who are sons-in-law of appellant Rajesh Sharma and against both
of them litigations are pending between the daughters of appellant Rajesh Sharma and sisters of other two
appellants.
 He attacked against the credibility of dying declaration recorded by the Magistrate on the ground that injured
Munna Lal Sharma was not mentally fit to give correct account of the occurrence, on account of pressure of
his sons he made the statement. That Munna Lal Sharma sustained burn injuries accidentally, taking
advantage of the alleged incident these two brothers (sons of the deceased) have manufactured a false case
against the appellants. The second ground raised in support of the appeals is that the investigation was not
fairly conducted and Investigating Officer in collusion with the first informant due to enmity with the
appellants chargesheeted them. That FIR was anti timed, statements of the injured alleged to be recorded by
the Investigating Officer is fabricated one.(Para 13-17)

3. The State-respondent these arguments have been repelled and it has been submitted that dying
declaration recorded by the Magistrate has been found to be true by the learned trial Judge. He recorded
findings after taking into consideration the facts and circumstances of the case and law about dying
declarations, thus, the findings are well substantiated from the record, they need no interference and appeals
are without substance.(Para 18)

Held:(Paras 53-56)

1. When considering in this factual and legal scenario we find that plea of defence that due to kerosene oil
stove an accident had occurred with Munna Lal Sharma and on account of matrimonial disputes the FIR was
lodged against the appellants, who happened to be relatives of the girls, who were prosecuting their
914 INDIAN LAW REPORTS ALLAHABAD SERIES
husbands. Entry of the injuries sustained by Munna Lal Sharma at District Hospital finds place in the register
meant for accidental injuries and Ext. Kha-3 are enough to create doubt that dying declaration Ext. Ka-9 may
not be a true account of the occurrence.We are also fortified in our conclusion from the fact that Investigating
Officer could not find any sign of pouring kerosene oil at the alleged place of occurrence, no local witness of
the alleged occurrence or at the place of alleged kidnapping was examined. The FIR was lodged under
suspicious circumstances with delay and prosecution has not given any explanation for the same.The learned
trial Judge while appreciating the evidence has ignored these material points, he failed to appreciate the
evidence in the manner prescribed by law.For this reason, findings recorded by the him, are erroneous,
appeals have substance. Accordingly, both the appeals are allowed.

Case Law discussed:

Ishvarbhai Fuljibhai Patni v. State of Gujarat, 1995 SCC (Cri) 222 - Para 18
Lal Mandi v. State of West Bengal, 1995 Cri LJ 2659 (SC) - Para 19
State of U.P. v. Ram Sagar Yadav and others, AIR 1985 SC 416 - Para 29
Paniben (Smt.) v. State of Gujarat, 1992 SCC (Cri) 403- Para 29
Laxmi (Smt.) v. Om Prakash and others, 2001 SCC (Cri) 993- Para 29
Bhajju alias Karan Singh v. State of Madhya Pradesh, (2012) 4 SCC 327 - Para 29
Rafique @ Rauf and others v. State of U.P., 2013 LawSuit (SC) 525- Para 29
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622- Para 30

(Delivered by Hon'ble Vikram Nath, J.
&
Hon'ble Pratyush Kumar, J.)

1. These two appeals, filed on behalf of the accused-appellants under Section 374(2)
Cr.P.C., are directed against the judgment and orders dated 12.10.2011 passed by Sri A.K. Ganesh,
Additional Sessions Judge, Court No.7, Mathura in Sessions Trial No. 510 of 2008 (State Vs.
Rajesh Sharma and another) and Sessions Trial No. 888 of 2008 [State Vs. Sonu @ Mukesh],
whereby the appellants were convicted and punished as under:

2. In Criminal Appeal No. 6133 of 2011, the appellants Rajesh Sharma son of Chaturbhuj
Sharma and Shiv Kumar son of Rajesh Sharma have been convicted and sentenced as under:

U/s 302/34 IPC
: Life Imprisonment with fine of Rs.15,000/-.each.
: In default of payment of fine 6 months RI each.

3. In Criminal Appeal No. 6322 of 2011, the appellant Sonu @ Mukesh son of Hari Bahu
has been convicted and sentenced as under:

U/s 302/34 IPC
: Life Imprisonment with fine of Rs.15,000/- each.
: In default of payment of fine 6 months RI each.

4. Since both the appeals arise out of the same judgment and orders dated 12.10.2011
passed in Sessions Trial No. 510 of 2008 (State Vs. Rajesh Sharma and another) and Sessions Trial
5 All. Rajesh Sharma & Anr. Vs State Of U.P.

915
No. 888 of 2008 [State Vs. Sonu @ Mukesh], they have been heard together and decided by a
common order.

5. Facts giving rise to the present appeals may be summarized as under:

6 That on 01.05.2008 at 11.30 AM, Pawan Sharma gave a written report at outpost Krishna
Nagar police station Kotwali Mathura stating therein that on that day his father Munna Lal Sharma
had left the house in the morning to visit Krishna Janam Bhoomi for worshiping, from there he
proceeded to Bhuteshwar on the way in front of Shriji Baba Ashram, he was intercepted by Rajesh
Sharma and his two sons Shiv Kumar and Punit, those three came on motorcycle and at about 10.00
AM, forced his father to sit on the motorcycle and took him to their house. Near their house they
poured kerosene oil on the head of his father and burnt him, whole body of his father was burnt,
about which he received information on mobile, thereupon he along with his brother Varun Sharma
and Arun Sharma reached Agrasen Nagar and saw their father was tossing around in pain on the
road. They took him to the District Hospital, on enquiry his father told him that he was forcibly
taken by Rajesh Sharma (father-in-law of Varun Sharma) and his two sons and near their house he
was burnt with the help of kerosene oil.

7. On this check FIR was scribed, Case Crime No. 288 of 2008, under Section 307 IPC was
registered and investigation was entrusted to Sub Inspector Sunil Kumar Sharma, who immediately
recorded the statement of scribe of check FIR and the first informant, he also recorded the
statement of injured Munna Lal Sharma, inspected the spot, took into his possession burnt clothes
of Munna Lal Sharma. He started searching for the accused persons, thereafter investigation was
transferred to Inspector Kotwali Sri C.L. Sharma, who conducted the further investigation and
found the involvement of Sonu @ Mukesh in the crime also. During treatment injured Munna Lal
Sharma died at Agra, after completion of investigation charge-sheet against three named accused
was submitted, thereafter separate charge-sheet against Sonu @ Mukesh was submitted.

8. The case of Rajesh Sharma, Shiv Kumar and Punit was committed to the Court of
Session on 01.07.2008 and case of Sonu @ Mukesh was committed to Court of Session on
23.10.2010. The case of Punit @ Pramendra was separated on 7th October, 2008 for enquiring
about his juvenility to the Juvenile Justice Board, Mathura. The present appellants stood for trial
before the Court of Session, whereby they were charged under Sections 302/34 IPC, they denied
the charge and claimed to be tried.

9. In order to prove the charges on behalf of the prosecution documentary evidence was
filed and in the oral evidence 14 witnesses were examined. Thereafter statements of the appellants
were recorded under section 313 of the Code of Criminal Procedure. In the defence two witnesses
were examined. After conclusion of the trial, counsel for both the parties were heard and by the
impugned judgment the appellants were convicted and sentenced as above.

10. In the opinion of the trial court there was motive for commission of the crime and there
was dying declaration made by the deceased, it was found to be trustworthy.
916 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Heard Sri Rajul Bhargava, learned Senior Advocate, assisted by Sri Chandra Kumar
Singh, Advocate, appearing for the appellants Rajesh Sharma and Shiv Kumar, Sri Tripathi B.G.
Bhai, learned counsel for the appellant Sonu @ Mukesh, Sri Saghir Ahmad, learned Additional
Government Advocate, appearing for the State-respondent and Sri K.P. Pandey, Advocate,
appearing for the complainant Pawan and perused the record.

12. On behalf of the appellants it has been contended that the learned trial Judge has not
appreciated the evidence in proper perspective. There was no eye witness account and only on the
basis of dying declaration appellants have been convicted.

13. Sri Rajul Bhargava, learned Senior Advocate, assisted by Sri Chandra Kumar Singh,
learned counsel appearing for the appellants has submitted that in the present case there are three
dying declarations, first is oral as claimed in the FIR, second is the statement allegedly recorded by
the Investigating Officer and 3rd is the dying declaration recorded by the Magistrate at Agra. He
further submits that none of the dying declaration is above board, in the first two dying declarations
the name of Sonu @ Mukesh does not find place, in the 3rd dying declaration his name was added,
all the dying declarations were fabricated on the behest of first informant and Varun P.W.2, who
are sons-in-law of appellant Rajesh Sharma and against both of them litigations are pending
between the daughters of appellant Rajesh Sharma and sisters of other two appellants.

14. He attacked against the credibility of dying declaration recorded by the Magistrate on
the ground that injured Munna Lal Sharma was not mentally fit to give correct account of the
occurrence, on account of pressure of his sons he made the statement.

15. Learned counsel for the appellants further submits that Munna Lal Sharma sustained
burn injuries accidentally, taking advantage of the alleged incident these two brothers (sons of the
deceased) have manufactured a false case against the appellants. The second ground raised in
support of the appeals is that the investigation was not fairly conducted and Investigating Officer in
collusion with the first informant due to enmity with the appellants chargesheeted them.

16. In support of the second ground Sri Bhargava submits that FIR was anti timed,
statements of the injured alleged to be recorded by the Investigating Officer is fabricated one.

17. On behalf of the State-respondent these arguments have been repelled and it has been
submitted that dying declaration recorded by the Magistrate has been found to be true by the
learned trial Judge. He recorded findings after taking into consideration the facts and circumstances
of the case and law about dying declarations, thus, the findings are well substantiated from the
record, they need no interference and appeals are without substance.

18. Before we propose to deal with the arguments submitted by the respective parties, we
would like to recollect the manner in which appeal against conviction is required to be considered
by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. In
this regard, we would like to refresh the observation made by the Apex Court in the case of
5 All. Rajesh Sharma & Anr. Vs State Of U.P.

917
Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of
the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate
jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and
discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the
evidence, we do not find that the High Court even cared to notice the evidence led in the case.
None of the arguments of the learned counsel for the appellant have been noticed, much less
considered and discussed. The judgment is cryptic and we are at loss to understand as to what
prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain
requirement of justice, the High Court while dealing with a first appeal against conviction and
sentence is expected to, howsoever briefly depending upon the facts of the case, consider and
discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently
fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the
infirmities pointed out by us, the judgment under appeal cannot be sustained."

19. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995
CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the
caution to the High Court reminding its duty in the matter of hearing of appeal against conviction.
It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an
appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the
record and if two views are possible on the appraisal of the evidence, the benefit of reasonable
doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot
legally interfere with" the order of conviction where the trial court has found the evidence as
reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a
different conclusion on reassessment of the evidence. The observation made in Tota Singh's case,
which was an appeal against acquittal, have been misunderstood and mechanically applied.
Though, the powers of an appellate court, while dealing with an appeal against acquittal and an
appeal against conviction are equally wide but the considerations which weigh with it while
dealing with an appeal against an order of acquittal and in an appeal against conviction are
distinct and separate. The presumption of innocence of accused which gets strengthened on his
acquittal is not available on his conviction. An appellate court may give every reasonable weight to
the conclusions arrived at by the trial court but it must be remembered that an appellate court is
duty bound, in the same way as the trial court, to test the evidence extrinsically as well as
intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the
record so as to arrive at an independent finding regarding guilt or innocence of the convict. An
Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the
evidence on the record and arrive at an independent finding based on the appraisal of such
evidence."
918 INDIAN LAW REPORTS ALLAHABAD SERIES
20. Before entering into the arguments advanced on behalf of the respective parties, we
would like to place on record substance of the prosecution evidence and also of the defence.

21. The substance may be noticed as under:

Pawan Sharma PW.1
P.W.1 is the first informant and son of the deceased. He has
fully supported the facts mentioned in the first information
report with the addition that when he asked his father he was
also naming Sonu @ Mukesh incoherently. Sonu @ Mukesh
is his brother-in-law, he has proved written report Ext. Ka-1
and further stated that two daughters of appellant Rajesh
were married to his younger brothers Arun and Varun,
sometime after the marriage these girls were planning to live
separately, when his brothers did not succumb to their
pressure, they were falsely prosecuted under Section 498-A
IPC, his wife and these girls are living in their

Mayke, they had got themselves bailed out in the criminal
cases. His father used to do pairvi in those cases, on account
of this enmity the appellants murdered his father. According
to him, Investigating Officer recorded statement of his father
at Mathura and his father named all the four accused persons,
according to him, burnt clothes of his father were taken into
possession by the Investigating.
Varun Sharma P.W.2
P.W.2 has stated that Parul Sharma and Dolly, both daughters
of Rajesh Sharma were married to him and Varun. They are
living in their Mayke, they have falsely implicated them in
false case of dowry, thereafter he reiterated the facts stated in
the FIR. According to him, his father had died on 03.06.2008
(03.05.2008) at Siddhi Vinayak Nursing Home, earlier he
was treated at S.N. Medical College, Agra. He has proved
Supurdagi of dead body Ext. Ka-2.
 Constable

Saudan
Singh P.W.3
P.W.3 is the scribe of the check FIR, he has proved the check
FIR Ext. Ka-3, copy of the report of the general diary Ext.
Ka-4.
Inspector P.L. Sharma P.W.4 P.W.3 is the third Investigating Officer, he gave details of
steps taken in the course of investigation, he has proved
charge-sheet submitted against Rajesh Sharma, Shiv Kumar
and Punit, Ext. Ka-5.
5 All. Rajesh Sharma & Anr. Vs State Of U.P.

919
Dr. Surendra Pathwar P.W.5 P.W.5 is the Doctor, who on 03.05.2008 at 2.00 PM
performed the autopsy on the dead body of the deceased
Munna Lal Sharma, who had died on 03.05.2008 at 3.00 AM
at Siddhi Vinayak Nursing Home. According to him, there
were superficial to deep burns on whole of the body
excluding head and face, most part of both arms, perineum
region and sole and both feet. According to him, during
internal examination he found brain and its membrane and
lungs were congested. In the small intestine he found semi
digested food and the large intestine was filled with gases
and faecal matter. He has proved postmortem report Ext. Ka6. In his opinion cause of death was shock as a result of ante
mortem burns.
 Constable

Suresh
Kumar P.W.6
P.W.6 is the scribe of reporting police outpost Krishna Nagar,
he has altered case crime no. 288 of 2008 under Section 307
IPC into 302 IPC, he has proved copy of the report of the
general diary Ext. Ka-7.
Dr. R.L. Sharma P.W.7
P.W.7 was posted at the relevant time as Chief

Medical Officer, Emergency Department of S.N. Medical
College, Agra on 01.05.2008. He has deposed that at 1.30
PM Munna Lal Sharma aged 70 years was brought by Raj
Kumar his son, the patient had 94% burns, his condition was
very low, he has proved the entries in the original register
and filed the certified copy thereof Ext. Ka.8. During
examination he has stated that statement of injured Munna
Lal
Sharma was recorded by the Executive
Magistrate on that day at 5.30 PM, the injured was fit for
giving statement, his condition remained stable, during the
statement he has proved certificate Ext. Ka-9.
Sub Inspector Padm Singh
P.W.8
P.W.8 is the Police Officer, who conducted the inquest
proceedings on 03.05.2008, he has proved inquest report and
other accompanying papers with the dead body Ext. Ka-10 to
Ka-14.
Constable Satya Ram P.W.9 P.W.9 is the bearer of the dead body from Siddhi Vinayak
Hospital, Hariparwat, Agra to Mortuary.
Sub Inspector Guru Prasad
P.W.10.
P.W.10 was the second Investigating Officer, he had arrested
Rajesh Sharma, Shiv Kumar and Punit.
920 INDIAN LAW REPORTS ALLAHABAD SERIES
Mr. Achche Lal Singh Yadav
P.W.11.
P.W.11 was the Additional City Magistrate-II, Agra on
01.05.2008, he has proved dying declaration Ext. Ka-9,
according to him, after obtaining fitness certificate from the
Doctor, he recorded the statement of the injured Munna Lal
Sharma.
Inspector
D.N.
Verma
P.W.12
P.W.12 is the fourth Investigating Officer. He gave details of
the steps taken in the course of investigation. He has proved
charge-sheet submitted against Sonu @ Mukesh Ext. Ka-15.
Dr. Ashok Sharma
P.W.13
P.W.13 on 02.05.2008 at 2.00 PM admitted Munna Lal
Sharma in the seriously burnt condition in Siddhi Vinayak
Hospital, Hariparwat, Agra. He has proved the original BHT
and filed its photostat copy under his certificate. He has
proved the certificate Ext. Ka-16.
Sub Inspector Sunil Kumar
Sharma P.W.14.
P.W.14 is the first Investigating Officer, he gave details of
steps taken in the course of investigation. He has proved site
plan Ext. Ka17, memo of taking clothes of injured Munna
Lal Sharma Ext. Ka-18. He has identified them, which are
exhibited as material Ext. 1 to 3.

22. The appellants in their statements recorded under Section 313 of the Code of Criminal
Procedure have denied the facts stated by the prosecution witnesses. According to them, on account
of criminal prosecution under Sections 498-A, 307 IPC initiated by the daughters of Rajesh Sharma
they were all falsely prosecuted and for this reason witnesses have given false testimonies.

23. In the defence two witnesses were examined.

24. Dr. Rakesh Bansal D.W.1 was the Medical Officer on 01.05.2008 at District Hospital,
Mathura, on that day from 8.00 AM to 2.00 PM he was on emergency duty and at 10.45 AM he
admitted Munni Lal Sharma in burnt condition. According to him, except sole of feet all over body
there were superficial to deep burns, he has proved the original BHT and entry in accidental
register and filed certified photostat copies which are exhibited as Ext. Kha-1 and Kha-2.

25. Dr. Richa Jegan D.W.2 Assistant Professor, S.N. Medical College, Agra, she had
treated Munna Lal Sharma on 01.05.2008 along with Dr. Ritesh Kumar Singh, she has proved
details of treatment given to him and proved Ext. Kha-3. According to her whereabouts of Dr.
Ritesh Kumar Singh were not known. She has proved the entry contained in the hospital of the
patient to the effect that the injuries were sustained due to kerosene stove as disclosed by son of the
injured Raj Kumar.

26. So far as statements of Pawan Sharma P.W.1 and Varun Sharma P.W.2 are concerned,
out of them, Pawan Sharma P.W.1 is the first informant, he has been examined to prove enmity,
oral dying declaration, lodging of FIR, finding of his father in burnt state in Agrasen Nagar. During
5 All. Rajesh Sharma & Anr. Vs State Of U.P.

921
cross-examination it has come out that they are four brothers, eldest is Raj Kumar, all of them are
married but only wife of Raj Kumar is living with him, wife of this witness Anita, wife of Varun,
Parul and wife of Arun, Dolly are living in their Mayke, all three brothers are facing cases for
maintenance and dowry. He could not tell who informed him on mobile. According to him, he and
his brother took their father on motorcycle to District Hospital, Agra. Thereafter he left his father in
the care of his brother at the hospital and lodged the first information report at Krishna Nagar
outpost. Though he has admitted that on the way Kotwali is situated but admitted that he did not go
there and proceeded towards Krishna Nagar outpost. What we find important is the fact that first
information report was lodged at 11.30 AM. According to him, he gave the report at 10.00 AM,
according to Dr. Rakesh Bansal D.W.1 patient was admitted at 10.35 AM, thus, sequence of events
narrated by the witness and the time given by him are disparate with the entries made by the police
officers and the Doctor. On the point of motive his statement is unconvincing and his bonafide of
lodging FIR at reporting outpost Krishna Nagar also becomes doubtful for the reasons given herein
after.

27. Varun Sharma P.W.2 is the other brother who took his father from Agrasen Nagar, he
is also facing criminal prosecution launched by his wife. According to him, name of Sonu @
Mukesh was also told by his father on the way but he could not tell that why this name does not
find place in the statements recorded by the Investigating Officer.

28. It is not disputed that Munna Lal Sharma died due to shock as a result of anti mortem
burns, his death took place on 03.05.2008 and he sustained burn injuries on 01.05.2008. The only
controversy is that whether Munna Lal Sharma was kidnapped by the appellants and he was burnt
by the appellants or in the morning hour he sustained burn injuries due to kerosene oil stove and
died as a result thereof. On this point the appellants have been convicted on the basis of dying
declaration Ext. Ka-9.

29. Before proceeding further we would like to notice the case laws referred on behalf of
the appellants during the arguments. The details of these case laws are as under:

1. State of U.P. v. Ram Sagar Yadav and others [AIR 1985 416]. The relevant
para is quoted:

" It is well-settled that, as a matter of law, a dying declaration can be acted upon
without corroboration. There is not even a rule of prudence which has harden d into a rule of
law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort Or
the Court has to be to find out whether the dying declaration is true. If it is, no question of
corroboration arises. It is only If the circumstances surrounding the dying declaration are not
clear or convincing that the Court may, for its assurance, look for corroboration to the dying
declaration. The instant case. is a typical illustration of that class of cases in which the Court
should not hesitate to act on the basis of an uncorroborated dying declaration The circumstances
leave no doubt that the dying declaration made by the deceased to the Judicial Magistrate to the
effect that he was beaten by Darogah and the constables at the Police Station is rue in every
922 INDIAN LAW REPORTS ALLAHABAD SERIES
respect and it is safe to accept the same. [628F; G; 629AB] Khushal Rao v. The State of Bombay,
[1958] SCR 552, Harbans Singh v. State of Punjab, [1967] Supp. ISCR 104 and Gopalsingh v.
State of M.P, [1972] 3 SCC 268."

2. Paniben (Smt.) Vs. State of Gujarat [1992 SCC (Cri) 403)]. Reliance has been
placed on the observation made in para18 of the report quoted herein below:

18.Though a dying declaration is entitled to great weight, it is worthwhile to
note that the accused has no power of cross-examination. Such a power is essential for eliciting
the truth as an obligation of oath could be. This is the reason the Court also insists that the
dying declaration should be of such a nature as to inspire full confidence of the Court in the
correctness. The Court has to be on guard that the statement of the deceased was not as a result
of either tutoring or a product of imagination. The Court must be further satisfied that the
deceased was in a fit state of mind after a clear opportunity to observe and identify the
assailants. Once the Court is satisfied that the declaration was true and voluntary. undoubtedly, it
can base its conviction without any further corroboration. It cannot be laid down as an 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. This Court has
laid down in several judgments the principles governing dying declaration, which could be summed
up as under:

(i)There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration. (Munnu Raja V. State of M.P.[1976 (3) SCC 104]

(ii)If the Court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration.[State of U.P. v. Ram Sagar Yadav, Ramawati Devi V.
State of Bihar, 1985 (1) SCC 552]

(iii)This Court has to scrutinize the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination. The deceased had
opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K.
Ramachandra Reddy v. Public Prosecutor, 1976(3) SCC 618]

(iv).Where dying declaration is suspicious it should not be acted upon without
corroborative evidence. [Rasheed Beg v. State of M.P., 1974(4) SCC 264]

(v).Where the deceased was unconscious and could never make any dying
declaration the evidence with regard to it is to be rejected. [Kake Singh v. State of M.P., 1981 Supp
SCC 25]

(vi)A dying declaration which suffers from infirmity cannot form the basis of
conviction [Ram Manorath v. State of U.P., 1981 (2) SCC 654]
5 All. Rajesh Sharma & Anr. Vs State Of U.P.

923
(vii)Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980
Supp SCC 455]

(viii)Equally, merely because it is a brief statement, it is not be discarded. On the
contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza v. State of Bihar,
1980 Supp SCC 769]

(ix)Normally the court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But where the eye witness
has said that the deceased was in a fit and conscious state to make this dying declaration, the
medical opinion cannot prevail. [Nanahau Ram v. State of M.P., 1988 Supp SCC 152]

(x)Whee the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan, 198 (3)
SCC 390]

3. Laxmi (Smt) Vs. Om Prakash and others [2001 SCC (Cri) 993)]. Reference has
been made to the observations made in para-29 of the report which reads as under:

"29.A dying-declaration not being a deposition in Court, neither made on oath nor
in the presence of the accused and therefore not tested by cross-examination is yet admissible in
evidence as an exception to the general rule against the admissibility of heresay. The admissibility
is founded on the principle of necessity. The weak points of a dying declaration serve to put the
court on its guard while testing its reliability and impose on the court an obligation to closely
scrutinise all the relevant attendant circumstances. [see Tapinder Singh Vs. State of Punjab 1971
(1) SCJ 871]. One of the important tests of the reliability of the dying declaration is a finding
arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of
making a statement at the point of time when the dying declaration purports to have been made
and/or recorded. The statement may be brief or longish. It is not the length of the statement but the
fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court
finds that the capacity of the maker of the statement to narrate the facts was impaired or the court
entertains grave doubts whether the deceased was in a fit physical and mental state to make the
statement the court may in the absence of corroborate evidence lending assurance to the contents
of the declaration refuse to act on it. In Bhagwan Das Vs. State of Rajasthan - AIR 1957 SC 589 the
learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration
was able to talk so as to make a statement. This Court while upholding the finding of the learned
Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a
charge of murder. In Kake Singh @ Surendra Singh Vs State of M.P.AIR 1982 SC 1021 the dying
declaration was refused to be acted upon when there was no specific statement by the doctor that
the deceased after being burnt was conscious or could have made coherent statement. In Darshan
Singh Vs. State of Punjab - AIR 1983 SC 554 this Court found that the deceased could not possibly
have been in a position to make any kind of intelligible statement and therefore said that the dying
924 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration could not be relied on for any purpose and had to be excluded from consideration. In
Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the dying declaration was
recorded by the investigating officer. This Court excluded the same from consideration for failure
of the investigating officer to get the dying declaration attested by the doctor who was alleged to be
present in the hospital or any one else present."

4. Bhajju alias Karan Singh Vs. State of Madhya Pradesh [2012(4) SCC 327].
Reliance has been placed on para-26 of the report, quoted as below:

"26.The law is well-settled that a dying declaration is admissible in evidence and
the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can
form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated
dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on
the same footing as any other piece of evidence. It has to be judged and appreciated in light of the
surrounding circumstances and its weight determined by reference to the principle governing the
weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity,
either of its own or as disclosed by the other evidence adduced in the case or the circumstances
coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the
infirmities are such as would render a dying declaration so infirm that it pricks the conscience of
the Court, the same may be refused to be accepted as forming basis of the conviction."

5. Rafique @ Rauf and others Vs. State of U.P. [2013 Law Suit (SC) 525]. Para16 of the report has been relied on which may be gainfully referred and quoted below:

"16. The author Phipson in his 9th Ed., of the book on Evidence made the
following observations:

"......The deceased then signed a statement implicating the prisoner, but which was
not elicited by question and answer, and died on March 20. It was objected that being begun in that
form, it was inadmissible:- Held (1) the questions and answers as to his state of mind were no part
of the dying declaration; (2) that even if they were, they only affected its weight, not its
admissibility; and (3) that the declaration was sufficient, without other evidence, for conviction R.
v. Fitzpatrick, (1910) 46 Ir. L.T. 173 (M).
"
30. From the prosecution version and evidence adduced to substantiate the same, it
transpires that prosecution had not examined any witness who had seen the actual occurrence. This
case at the best rests on circumstantial evidence, in order to prove the charges in case of
circumstantial evidence the prosecution is required to satisfy the court that all links in the chain of
circumstantial evidence have been proved by the cogent and credible evidence. In the celebrated
case of Sharad Birdhichand Sarda AIR 1984, SC, 1622, the Hon'ble Supreme Court has lucidly
described when the circumstantial evidence can be treated to be conclusive.