# Ram Bhajan & Ors v. State of U.P

- **Citation:** (2022) 10 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Crl. Appeal No. 7788 of 2010
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bhajan-ors-v-state-of-u-p-47882
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- The dying declaration is
generally accepted, but has to be accepted
with
caution.
The
declarant
is
not
10 All. Ram Bhajan & Ors. Vs. State of U.P.
909
available for cross examination. It is not
the case of the prosecution that after
receiving gunshot injury deceased was in
a position to speak. Had it been so, the
Medical Officer or the hospital staff would
have said so or informed the police or the
magistrate to record the statement of the
deceased. Further, the prosecution has
not produced any evidence to corroborate
the testimony of dying declaration. There
is no requirement of law that such a
statement must necessarily be made to a
Magistrate. What evidentiary value or
weight has to be attached to such
statement, must necessarily depend on
the facts and circumstances of each
particular case. In a proper case, it may be
permissible to convict a person only on
the basis of a dying declaration in the light
of the facts and circumstances of the case.
The trial court committed an error in
resting conviction of the accused on the
dying declaration of the deceased alleged
to have made to his father (PW-3).

Where the dying declaration is truthful and
inspires confidence of the court then conviction
can be secured solely upon the basis of dying
declaration without further corroboration but
where the dying declaration is suspicious then
the court has to look for other evidence to
corroborate the dying declaration and where the
same fails to corroborate but contradicts the
dying declaration then reliance cannot be placed
on such dying declaration.

Indian Evidence Act, 1872- Section 27-
The accused confessed of committing the
crime with the other accused with the
recovered
weapon.
The
prosecution
miserably failed to establish the link of the
assault weapon with the crime- The word
''distinctly' means ''directly', ''indubitably',
''strictly', ''unmistakably'. The word has
been advisedly used to limit and define
the scope of the provable information. The
phrase ''distinctly relates to the fact
thereby discovered' is the linchpin of the
provision. This phrase refers to that part
of the information supplied by the accused
which is the direct and immediate cause of
the discovery- The recovery of the alleged
assault weapon has not been connected
with the commission of the crime by the
prosecution.

Disclosure made by the accused must be
distinctly related to the discovery and recovery
made in pursuance thereof and it is incumbent
upon the prosecution to connect the recovery so
made with the commission of the offence. (Para
21, 22, 28, 30)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

908 INDIAN LAW REPORTS ALLAHABAD SERIES

(63) In this case charges were framed
under Sections 364A, 302 and 201 IPC.
From the evidence produced by the
prosecution it is fully proved that deceased
were cleverly called by the accused persons
and after they reached Agra they were
kidnapped and abducted. There they were
administered sleeping pills, and thereafter
their
hyoid
bones
were
broken
by
strangulation and were buried under the
earth. Thus the ingredients of Section 364A
IPC is completed. They were thereafter
buried alive and in an unconscious state of
mind.
The
accused
persons
while
committing such acts were always knowing
that
their
acts
were
so
imminently
dangerous
that
they
would
in
all
probability, cause death. Thus the act of
convicted accused persons is covered under
Section 300 (4) IPC. By burying the
deceased persons and by burning their
clothes and shoes the accused persons had
also committed the offence under section
201 IPC. Thus this court is of the
considered view that charges against the all
accused appellants have been proved
beyond reasonable doubt and they were
correctly convicted by the learned trial
court.

(64) So far as the sentencing is
concerned the lower court had opined that
it is not a rarest of the rare cases and
therefore awarded them minimum sentence.
The State or the informant have not
preferred any appeal against the order of
sentencing. Under Sections 302 and 364A
IPC
the
minimum
sentence
is
life
imprisonment and fine which has already
been awarded by the trial court. The trial
court has already awarded five years
rigorous imprisonment and 5,000/- fine
each under Section 201 IPC. Thus the
sentence awarded by the trial court is
neither excessive nor harsh.

(65) On the basis of above discussion,
both the appeals fail and are liable to be
dismissed accordingly.

(66) Accordingly, Jail Appeal No.
3367/2010 (Pawan Mishra Vs. State of
U.P) and Criminal Appeal No. 3490 of
2010 ( Dinesh Sahu & Kripal Sahu Vs.
State of U.P.) are hereby dismissed. The
order of conviction and sentencing passed
by Special Judge (D.A.A.), Agra in ST No.
121 of 2005 (State Vs. Pawan Mishra and
others) Crime No. 356/ 2005 under Section
364, 302/ 201 IPC, P.S. New Agra, DistrictAgra is hereby confirmed.

(67) Let a copy of this Judgement be
sent to Jail Authorities and court concerned
for compliance. Lower court's records
along with a copy of this judgment be also
sent back to the court concerned.
----------
(2022) 10 ILRA 908
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Crl. Appeal No. 7788 of 2010

Ram Bhajan & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri P.N. Misra, Sri Apul Mishra, Ms. Mridul
Tripathi, Sri P.N. Misra

Counsel for the Opp. Party:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 32- The dying declaration is
generally accepted, but has to be accepted
with
caution.
The
declarant
is
not
10 All. Ram Bhajan & Ors. Vs. State of U.P.
909
available for cross examination. It is not
the case of the prosecution that after
receiving gunshot injury deceased was in
a position to speak. Had it been so, the
Medical Officer or the hospital staff would
have said so or informed the police or the
magistrate to record the statement of the
deceased. Further, the prosecution has
not produced any evidence to corroborate
the testimony of dying declaration. There
is no requirement of law that such a
statement must necessarily be made to a
Magistrate. What evidentiary value or
weight has to be attached to such
statement, must necessarily depend on
the facts and circumstances of each
particular case. In a proper case, it may be
permissible to convict a person only on
the basis of a dying declaration in the light
of the facts and circumstances of the case.
The trial court committed an error in
resting conviction of the accused on the
dying declaration of the deceased alleged
to have made to his father (PW-3).

Where the dying declaration is truthful and
inspires confidence of the court then conviction
can be secured solely upon the basis of dying
declaration without further corroboration but
where the dying declaration is suspicious then
the court has to look for other evidence to
corroborate the dying declaration and where the
same fails to corroborate but contradicts the
dying declaration then reliance cannot be placed
on such dying declaration.

Indian Evidence Act, 1872- Section 27-
The accused confessed of committing the
crime with the other accused with the
recovered
weapon.
The
prosecution
miserably failed to establish the link of the
assault weapon with the crime- The word
''distinctly' means ''directly', ''indubitably',
''strictly', ''unmistakably'. The word has
been advisedly used to limit and define
the scope of the provable information. The
phrase ''distinctly relates to the fact
thereby discovered' is the linchpin of the
provision. This phrase refers to that part
of the information supplied by the accused
which is the direct and immediate cause of
the discovery- The recovery of the alleged
assault weapon has not been connected
with the commission of the crime by the
prosecution.

Disclosure made by the accused must be
distinctly related to the discovery and recovery
made in pursuance thereof and it is incumbent
upon the prosecution to connect the recovery so
made with the commission of the offence. (Para
21, 22, 28, 30)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

1. Laxman Vs St. of Maha., 2002 (6) SCC 610

2. Arun Bhanudas Pawar Vs St. of Maha.,2008
(11) SCC 232

3.
Heikrujam
Chaoba
Singh
Vs
St.
of
Manipur,1998 (8) SCC 458

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Ms. Mridul Tripathi, learned
Amicus Curiae appearing for the appellant,
Shri
Om
Prakash
Mishra,
learned
Additional Government Advocate and
perused the lower court record with the
assistance of the learned counsel for the
parties.

2. The instant appeal has been filed
against the judgment and order dated 18
November 2010, passed by the Additional
Sessions Judge/F.T.C. No. 7, Shahjahanpur,
in Session Trial No. 526 of 2004, along
with Session Trial No. 527 of 2004, arising
out of Crime No. 283 of 2003 connected
with Crime No. 287 of 2003, P.S. Kanth,
District Shahjahanpur, whereby, convicting
the appellant no.2 Ram Kishore under
Section 302 IPC and further convicting the
appellant no. 1 Ram Bhajan and appellant
no. 3 Udai Veer under Section 302/34 IPC
and sentencing them to imprisonment for
life and fine of Rs. 5,000/- each, further
convicting the appellant no. 1 Ram Bhajan
910 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 25/27 of Arms Act and
sentencing him to 3 years rigorous
imprisonment and fine of Rs. 1,000/-. In
case of the default of payment, the
appellant will have to undergo further 1
month simple imprisonment.

3. The prosecution case setup in the FIR
is that on 5 November 2003, Mool Shankar,
son of the complainant (P.W.-3) had gone to
Kanntha town to get the quilt stuffed. The
complainant had gone to the market, where
he was informed by Jagdish and Pratap,
residents of his village, that his son Mool
Shankar (deceased) was caught by accused
Rambhajan and Udayveer at about 2 PM on
Kurriya Road and their brother Ramkishore
shot his son in the stomach with a countrymade pistol. The injured Mool Shankar was
taken to the Shahjahanpur Hospital on a
tempo by some persons. It is further stated
that complainant reached the Government
Hospital and found his son admitted. It is
further alleged that injured Mool Shankar
told
the
complainant
that
accused
Ramkishore shot with a country-made pistol
in his stomach while accused Udayveer and
Rambhajan caught him. It was further alleged
that 5-6 months earlier a case under Section
307 IPC was lodged by accused Rambhajan
against the son of the complainant and Tej
Ram. It is due to this enmity the accused have
committed
the
crime.
Mool
Shankar
(deceased) succumbed to the injury in the
hospital during treatment on 8 November
2003.

4. A report came to be lodged and
registered on the written complaint of the
informant on 9 November 2003. The
Investigating Officer (IO) recorded the
statement of the witnesses, prepared the site
plan on the pointing out of the complainant.
Postmortem on the dead-body of the
deceased was conducted on the same day at
3:30 PM. On the arrest of accused
Rambhajan, the country-made pistol of 315
bore, empty cartridge and one live cartridge
was recovered on the disclosure made by the
accused on 15 November 2003. Recovery
memo was prepared on the spot. On the basis
of recovery memo, Case Crime No. 287 of
2003
was
registered
against
accused
Rambhajan under Section 25/27 of Arms Act.

5. The Investigating Officer prepared
the site plan after investigating the spot. The
blood stained clothes of the deceased, the
bullet recovered from the body of the
deceased and the country-made pistol, the
empty cartridge and one live cartridge
recovered on pointing of accused Rambhajan
was sent to the Forensic Science Laboratory
(for short ''FSL') for chemical examination.
The charge-sheet under Section 302 IPC
came to be filed against all the accused
persons, whereas, charge-sheet under Section
25/27 Arms Act was filed against accused
Rambhajan.

6. Upon committal of both the cases
Sessions court framed charges against the
accused Ramkishore, Rambhajan and others
under Section 302, read with, Section 34 IPC.
The Sessions court framed charges against
Rambhajan under Section 25/27 Arms Act.
The accused denied the charges and claimed
trial.

7.

In
support
of
the
charge
prosecution
examined
the
following
witnesses:

1. P.W.-1 Jagdish, eyewitness.

2 P.W.-2 Pratap Singh, eyewitness.

3. P.W.-3 Kaptan, complainant, father
of the deceased.

4. P.W.-4 Inspector-in-Charge, Sri
Babu Ram Sagar (I.O.), in the case of
Section
10 All. Ram Bhajan & Ors. Vs. State of U.P.
911

302 IPC and complainant in the case
of Section 25/27 Arms. Act.

5. P.W.-5 Dr. Prem Prakash, conducted
post-mortem

6. P.W.-6 Sub-Inspector, Sri Hari
Singh (I.O.), of case under Section 25/27 of
the Arms Act.

7. P.W.-7 Constable Jitendra Kumar
Singh, writer of the chick FIR and G.D. of
the registered case

8. P.W.-8 Sub-Inspector, Sri Tej
Bahadur prepared panchayatnama

9. P.W.-9 Constable Clerk Sri Mahesh
Chandra, writer of the chick and G.D. of
the registered case Section 25/27 of Arms
Act.

8. The details of the documents
which was proved on behalf of the
prosecution are as follows:

1. Exhibit Ka-1, written report,
which has been proved by P.W.-3
complainant Kaptan.

2. Exhibit Ka-2, site plan, regarding
case of Section 302 of I.P.C.

3. Exhibit Ka-3, recovery memo of
country-made pistol and cartridge.

4.
Exhibit
Ka-4,
charge-sheet
regarding case of Section 302 of I.P.C.

5. Exhibit Ka-5, letter sent to
forensic science laboratory, Exhibit Ka-2
to Exhibit Ka-5 has been proved by Dr.
Prem Prakash.

6. Exhibit Ka-6, post-mortem report,
which has been proved by Dr. Prem
Prakash.

7. Exhibit Ka-7, site plan regarding
the case of Section 25/27 of Arms Act.

8.
Exhibit
Ka-8,
sanction
for
prosecuting, regarding Section 25/27 of
Arms Act.

9.
Exhibit
Ka-9,
charge-sheet
regarding Section 25/27 of Arms Act.
Exhibit Ka-7 to Exhibit Ka-9 have been
proved by P.W.-6 Sub-Inspector Hari
Singh.

10.
Exhibit
Ka-10,
chick
F.I.R.
regarding Section 302 of I.P.C.

11. Exhibit Ka-11, G.D. of the
registered case regarding Section 302 of
I.P.C. Exhibit Ka-10 and Exhibit Ka-11 has
been proved by P.W.-7 Jitendra Kumar.

12. Exhibit Ka-12, panchayatnama
which has been proved by P.W.-8 S.I. Tej
Bahadur Singh.

13. Exhibit Ka-13, challan body.

14. Exhibit Ka-14, sealed samples.

15. Exhibit Ka-15, photo of the body.

16. Exhibit Ka-16, report of C.M.O.
Exhibit Ka-12 to Exhibit Ka-16 has been
proved by P.W.-8 Tej Bahadur Singh.

17.
Exhibit
Ka-17,
chick
F.I.R.
regarding section 25/27 of Arms Act.

18. Exhibit Ka-18, G.D. of the
registered case regarding Section 25/27 of
Arms Act. Exhibit Ka-17 and Exhibit Ka18 have been proved by P.W.-9 Constable
Mahesh Chandra.

9. The accused persons on being
confronted with the prosecution evidence,
denied of having committed the crime.
They further stated that they have been
falsely implicated due to enmity. In defence
the accused persons did not produce any
evidence.

10. The trial court upon scrutiny of
the oral and documentary evidence reached
a finding that the prosecution has been able
to prove the charges beyond reasonable
doubt
against
the
accused
persons,
accordingly,
recorded
conviction
and
sentence, hence, the present appeal.

11. Learned Amicus Curiae appearing
for
the
appellants
submits
that
the
witnesses of fact P.W.-1 and P.W.-2 claim
to be eye-witnesses of the incident, but
912 INDIAN LAW REPORTS ALLAHABAD SERIES
have not supported the prosecution case
and stated that they had not seen the
accused either catching hold the deceased
or being shot by the accused Ramkishore.
The witnesses were declared hostile. The
conviction of the appellants rests on the
testimony of P.W.-3 complainant/father of
the deceased who admittedly is not an eyewitness and his testimony rests of the
information given by the deceased during
treatment that the accused-appellants had
committed the crime.

12. Learned counsel submits that the
testimony of P.W.-3 is not corroborated by
any independent evidence, therefore, is
merely a hearsay evidence. He further
submits that recovery of the assault weapon
from accused Rambhajan is planted and the
weapon has not been connected with
commission of the offence. It is urged that
the finding reached by the trial court is per
se perverse and the conviction is not based
on credible evidence, but merely on the
uncorroborated confessional statement of
the accused.

13.
 As
per
prosecution
case,
complainant (P.W.-3) is not the eye-witness
of the incident. At the market he received
information from Jagdish (P.W.-1) and
Pratap Singh (P.W.-2) that his son has been
shot by accused Ramkishore while the
other accused held him. It is further stated
by P.W.-3 that during treatment deceased
informed him that the accused persons had
committed the crime. The eye-witness i.e.
P.W.-1 and P.W.-2 have not supported the
prosecution case and were declared hostile.
P.W.-3 in examination-in-chief reiterates
the prosecution version and further states
that injured was taken to the hospital by
some police personnel. He further states
that he first directly went to the thana
where his son was not found and was
informed that his son is admitted in the
hospital. From thana complainant went to
the hospital where his son informed him
that accused had committed the offence.

14. He further stated that a civil case
is
pending
against
accused
persons,
therefore, are inimical, and 4-5 months
earlier a report was lodged against his son
by accused Udayveer. He further stated that
his son succumbed to the injury in the
hospital after three days (08.11.2003).
Complainant got the report transcribed by
Chhavi Nath and was submitted to the
thana on the following day i.e. 9 November
2003, the report came to be registered at
12:45
PM.
In
cross-examination,
he
admitted that he first visited the thana and
then the spot of the incident where
Ramavtar a shop owner told him about the
incident of firing on his son. He reached the
hospital at about 4-5 PM and found his son
admitted. He further stated that his son had
informed him about the incident being
committed by the accused. He further
admitted that he alone was attending his
son in the hospital. P.W.-3 further admitted
that he is one of the witnesses to the
Panchayatnama and further stated that he
had informed the police officer preparing
the Panchayatnama about the accused
persons who had committed the crime.

15. He further stated that he had got
arrested the accused Rambhajan from a
sugarcane field.

16. P.W.-4 Babu Ram Sagar the
Investigating Officer stated that the FIR
came to be registered on the written
complaint of the complainant on 9
November 2003, the statement of the
complainant was taken on the same day and
that of Jagdish (P.W.-1). The site of the
incident was inspected in the presence of
10 All. Ram Bhajan & Ors. Vs. State of U.P.
913
the complainant and the witnesses; the site
map (exhibit-Ka-2) was prepared. Accused
Rambhajan came to be arrested on 14
November 2003 (7:30 AM) on the
information of Mukhbir. The assault
weapon, country-made pistol of 315 bore,
an empty cartridge and live cartridge was
recovered on the disclosure and at the
pointing out of the accused. The accused
confessed of committing the crime with the
recovered weapon.

17.
 P.W.-5
Dr.
Prem Prakash
Srivastava conducted autopsy on the body
of the deceased on 9 November 2003 at
3:30 PM. The following injuries were
found on the body of the deceased:

"1. Gunshot wound of entry was 0.9
cm x 0.8 cm (illegible) abdominal cavity
deep. The said wound was present on the
left side of the chest and was 10 cm below
the left nipple. It was from inside to outside.
There was blackening and tattooing around
the wound. The left lung was lacerated. The
diaphragm was lacerated. The horizontal
collar was lacerated. The stomach was also
lacerated. The right side of the liver was
lacerated.

Rigor mortis was present on the upper
part and lower part of the body i.e. on the
whole body. In the internal examination of
the deceased, he found that the brain,
spleen and both kidneys were dry. There
was no blood. The left pleura was
lacerated. Semi-digested food was present
in the small intestine. The urine bag and
heart were empty. Feces were present at
many place in the large intestine. The right
side of the liver was lacerated and dry. A
metallic bullet was found on the right side
of the cavity. About 2 liters of blood mixed
with feces were present in the abdominal
cavity. In his opinion, the death of the
deceased Mool Shankar was due to the
bleeding caused by the bullet and the shock
caused by it. The injuries of the deceased
was possible to come on the date of
5.11.2003 at 2:00 pm. Injuries were
possible to come from firearms such as
country-made pistols.

The deceased died on 8.11.2003 at
around 6:10 pm in the district hospital."

18. The trial court on the evidence of
P.W.-3-complainant and the confessional
statement recorded by the accused-Ram
Bhajan and recovery of the assault weapon
on his pointing out recorded conviction.
The relevant portion of the trial court order
is extracted:

"The son of the complainant i.e., the
deceased Mool Shankar had told the
complainant about the incident. The
complainant says that there was no one
there at that time. There is no reason not to
believe
his
statement.
When
the
complainant's son narrated the incident to
the complainant, no one else was present
there.

The complainant also states that
deceased Mool Shankar did not have any
other attendant other than the complainant.
The complainant has got his report written
from Chhavinath Singh. It is true that
Chhavinath Singh is not an eyewitness to
the incident. The non-appearance of
Chhavinath Singh in evidence does not
adversely affect the prosecution story.

Before lodging the report in police
station, Kanth, Sub-Inspector P.W.-8 Tej
Bahadur Singh of police station Kotwali,
District
Shahjahanpur
has
filled
the
panchayatnama of deceased Mool Shankar
in District Hosapital, Shahjahanpur, and
the dead body was sealed there. At that
time complainant himself was present there.
If the complainant has stated the names of
the accused to the witness filling the
914 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchayatnama i.e. P.W.-8 Tej Bahadur
Singh and he has not written the names of
the accused on the Panchayatnama, then it
does not adversely affect the prosecution
story because the case was not investigated
by Sub-Inspector Tej Bahadur nor this
witness recorded the statement under
Section 161 Code of Criminal Procedure.

xxxxxxxxx

Recovery memo was made by the
police on the spot and the pistol and
cartridges was sealed. It is recorded in
the recovery memo Exhibit Ka-3 that on
15.11.2003, S.H.O. Babu Ram Sagar,
along
with
other
police
personnel,
arrested
accused,
Rambhajan
S/o
Ramdulare, resident of Bhudhia police
station, Shahjahanpur, at present in lockup, after handcuffing, in the hope of
recovery of murder weapon [country
made pistol] regarding the main crime
number 283/03 under Section 302 Indian
Penal Code, Police Station Kanth, in a
government jeep, No. UP 27 B/ 6000, left
from police station with constable driver
Shrikrishna, and handing over report
number 6, at 6:45 A.M., before the saw
machine
of
Munshilal
Lohar
R/o
Rawatpur, on Kurriya road, accused
asked to stop the vehicle and the accused
got
out
of
the
jeep,
the
persons
commuting were asked to testify stating
the purpose of arrest, but everyone went
away without revealing their names and
addresses. That after searching each
other's clothes and on being assured that
no one has any firearm, cartridge, then
the accused Rambhajan went ahead and
recovered a country made pistol 315
bore, wherein, a empty cartridge was
stuck in the barrel and a live cartridge
315 bore, from the bunch of patail and
the accused stated that this is the same
country made pistol that I had given to
my brother Ramkishore on the day of the
incident, all three of us shot Mool
Shankar in front of the agency of Ram
Avatar at 2:00 P.M. All three of us had
run away after shooting. The police
station was nearby from the spot, so out
of fear, the pistol with empty cartridge
and the cartridge was hidden in this
patail. Mool Shankar shot my brother. All
three of us have avenged his killing. This
pistol belongs to him. Therefore, the
crime of accused Rambhajan reaches the
extent of Section 25/27 Arms Act. The
police took possession of the country
made pistol, cartridges at 7:30 A.M., on
the spot, the signatures of fellow officials
were made after reading aloud the
recovery memo written by HCP Shri
Krishna Yadav. The country made pistol
and cartridge was sealed. Samples were
sealed.

The
evidence
collected
by
the
investigator under Section 27, Evidence
Act, is credible.

To prove a criminal incident, it is not
necessary that the eyewitnesses should be
available on the spot, because the accused
wants to execute any criminal incident in
such a way that no one can see or
recognize them at the time of causing the
incident and are able to escape safely after
causing the incident. As happened in this
case. Those who are said to be eye-witness
of the incident have not supported the
incident. In this case, the deceased Mool
Shankar did not die on the spot and he told
his father in the hospital about the incident
caused by the accused.

Thus, in the opinion of the Court, the
prosecution has proved its case beyond
doubt."

(English Translation by the Court)

19. In the given facts, prosecution
case rests upon motive; the testimony of
PW-3,
father
of
the
deceased,
and
10 All. Ram Bhajan & Ors. Vs. State of U.P.
915
confession of the accused made in the
disclosure statement before the police that
the accused committed the offence with the
recovered assault weapon.

20. The question that arises is as to
whether the dying declaration made by the
deceased to his father during treatment in
secrecy is reliable and credit worthy. PW-3
is not the eye witness. PW-1 and PW-2
setup as eyewitnesses in the FIR did not
support the prosecution case. They flatly
denied their presence on the spot and at the
time of the incident. As per PW-3 he was
informed by PW-1 and PW-2, while he was
in the market that his son was shot by
Ramkishore while other accused were
catching hold the deceased. In cross
examination PW-3 admits that first he went
to the thana, where he was informed that
his
son
has
been
hospitalised.
He,
thereafter, went to the hospital. PW-3
reached the hospital between 4 to 5 PM,
whereas, the incident is of 2 PM. He
further, deposed that his son succumbed to
the injuries after three days of the incident
on 8 Nov 2013. He (PW-3) further stated
that he was the lone person attending to his
son in the hospital; the deceased during
treatment informed him that the accused
had committed the offence. Ramkishore
shot him while others held him. PW-3
further clarifies in cross examination that
he was alone, Medical Officer or staff of
the hospital was not present at the moment
deceased informed him the names of the
accused persons.

21. The dying declaration is generally
accepted, but has to be accepted with caution.
The declarant is not available for cross
examination. It is not the case of the
prosecution that after receiving gunshot
injury deceased was in a position to speak.
Had it been so, the Medical Officer or the
hospital staff would have said so or informed
the police or the magistrate to record the
statement of the deceased. Further, the
prosecution has not produced any evidence to
corroborate
the
testimony
of
dying
declaration. The eye witnesses setup in the
FIR (PW-1 and PW-2) have not supported the
prosecution case. PW-3 being an interested
witness and his statement is without
corroboration from independent witness, is
not sufficient to prove the prosecution case.

22. There is no requirement of law that
such a statement must necessarily be made to
a Magistrate. What evidentiary value or
weight has to be attached to such statement,
must necessarily depend on the facts and
circumstances of each particular case. In a
proper case, it may be permissible to convict
a person only on the basis of a dying
declaration in the light of the facts and
circumstances of the case.

23. In the case of Laxman Vs. State of
Maharashtra1, at para 3, it was observed as
follows :-

The
juristic
theory
regarding
acceptability of a dying declaration is that
such declaration is made in extremity, when
the party is at the point of death and when
every hope of this world is gone, when
every motive to falsehood is silenced, and
the man is induced by the most powerful
consideration to speak only the truth.
Notwithstanding the same, great caution
must be exercised in considering the weight
to be given to this species of evidence on
account
of
the
existence
of
many
circumstances which may affect their truth.
Since the accused has no power of crossexamination, the courts insist that the dying
declaration should be of such a nature as to
inspire full confidence of the court in its
truthfulness and correctness.
916 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In Arun Bhanudas Pawar Versus
State of Maharashtra2, Supreme Court
declined to accept the testimony of the
mother of the deceased that deceased upon
regaining consciousness disclosed the name
of the accused to her. The mother of the
deceased categorically deposed that when
she went to civil hospital she found her son
in unconsciousness condition, however,
later on, deceased regaining consciousness
informed her the names of accused who
assaulted him with knife. She further stated
that doctor was present when the deceased
made oral dying declaration to her. The
Court declined to accept her testimony
being an interested witness and her
testimony was not without corroboration
from
independent
witness,
including,
medical officer. The court observed as
follows:

"21....It is well-settled law that the
oral dying declaration made by the
deceased ought to be treated with care and
caution since the maker of the statement
cannot
be
subjected
to
any
crossexamination.
In
the
present
case,
admittedly, the alleged dying declaration
had not been made to any doctor or to any
independent witness, but only to the
mother...The prosecution has not brought
on record any medical certification to
prove that after operation the deceased was
in a fit condition to make the declaration
before his mother."

26. Similarly Heikrujam Chaoba
Singh vs. State of Manipur3, Supreme
Court declined to accept the testimony of
the brother of the injured made to him in
the ambulance by the injured/deceased. The
relevant portion of the report is extracted:

We are, therefore, called upon to
examine the evidence of PW 2 and 5 to find
out whether the Courts below were justified
in relying upon their testimony and in
believing the statements alleged to have
been made by the deceased while being
carried to the hospital in ambulance and
thereafter while he was an indoor patient in
the hospital itself. So far as the statement in
the ambulance is concerned, it was made to
PW 2 who is the brother of the deceased.
He stated in his evidence that on inquiry
about the injuries sustained by his brother,
Hera Singh the injured told him that he had
been given blows by Heikrujam Chaoba
Singh with a dao, Yumlembam Paka Singh
with a hockey stick and another person
with a lathi. In his cross-examination, he
candidly admitted that there were three or
four persons inside the ambulance when his
brother told him the names of his assailants
but none of those disinterested persons
have been examined by the prosecution to
corroborate said PW 2. He also admitted in
his cross-examination that those persons
who were in the ambulance were present
near him when his brother stated the words
and yet the prosecution has not offered any
explanation as to why none of those
persons were examined who could have
been disinterested persons deposing about
the dying declaration said to have been
made by the deceased inside the ambulance
while he was being carried to the hospital.
....... In the aforesaid premise, we do not
think it safe to hold the evidence of PW 2 to
be reliable and, therefore, the oral dying
declaration as deposed to him by him
cannot be pressed into service for bringing
home the charges leveled against the
accused/appellant.

27. Further, no suggestion was given
to the doctor (PW-5), as to whether the
deceased
was
conscious
or
able
to
communicate verbally or by gestures. The
postmortem report notes blackening and
10 All. Ram Bhajan & Ors. Vs. State of U.P.
917
tattooing,
meaning
thereby,
that
the
deceased was shot from a close range. The
wound is abdominal cavity deep. Left lung
lacerated; diaphram lacerated; stomach
lacerated, right side of the liver lacerated.
In internal examination PW-5 noted that
brain, spleen and kidneys were dry. There
was no blood. About two litre blood was
present in the abdominal cavity. The
condition of the deceased was not such to
suggest he was conscious, his vital organs
were dry and blood had drained and
collected in the abdomen. The prosecution
had not produced the Bed-Head ticket of
the deceased. The Investigating Officer
PW-4 had stated that he had not recorded
the statement of the treating doctor or
medical staff. In the circumstances, the trial
court committed an error in resting
conviction of the accused on the dying
declaration of the deceased alleged to have
made to his father (PW-3). The finding
reached by the trial court is perse perverse.

28. Further, the conviction of the
accused
rests
upon
the
disclosure/confession made to the police.
The trial court found the evidence collected
by the Investing Officer under Section 27
of the Evidence Act credible. Investigating
Officer PW-4, arrested accused Rambhajan
after five days of lodging of the FIR
(14.11.2013); on his pointing out a 315
bore country made pistol, one empty
cartridge and live cartridge was recovered.
The accused confessed of committing the
crime with the other accused with the
recovered
weapon.
The
prosecution
miserably failed to establish the link of the
assault weapon with the crime. The
recovery of the assault weapon is one
circumstance in the chain of circumstances.
The statement of the accused during arrest
that he shot the deceased cannot be read in
evidence.

29. Section 27 of Evidence Act reads
thus:-

''27.How much of information received
from accused may be proved.--Provided
that, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any
offence, in the custody of a police officer, so
much of such information, whether it
amounts to a confession or not, as relates
distinctly to the fact thereby discovered,
may be proved.'

30. The expression ''provided' that
together with the phrase ''whether it
amounts to a confession or not' show that
the section is in the nature of an exception
to the preceding provisions particularly
Sections 25 and 26. It is not necessary in
this case to consider if this section
qualifies, to any extent, Section 24, also. It
will be seen that the first condition
necessary for bringing this section into
operation is the discovery of a fact, albeit a
relevant fact, in consequence of the
information received from a person accused
of an offence. The second is that the
discovery of such fact must be deposed to.
The third is that at the time of the receipt of
the information the accused must be in
police custody. The last but the most
important condition is that only ''so much
of the information' as relates distinctly to
the fact thereby discovered is admissible.
The rest of the information has to be
excluded. The word ''distinctly' means
''directly',
''indubitably',
''strictly',
''unmistakably'.
The
word
has
been
advisedly used to limit and define the scope
of the provable information. The phrase
''distinctly relates to the fact thereby
discovered' is the linchpin of the provision.
This phrase refers to that part of the
information supplied by the accused which
918 INDIAN LAW REPORTS ALLAHABAD SERIES
is the direct and immediate cause of the
discovery.

31. The testimony of P.W.-3 having
been found to be unreliable, doubtful and
fails to inspire confidence of the Court, in
the circumstances the prosecution case
stands
demolished.
The
independent
witnesses P.W.-1 and P.W.-2 claiming to
have witnessed the incident have turned
hostile. They decline their presence on the
spot. Ram Avtar, before whose shop the
incident is alleged to have occurred was not
examined.
Chabinath,
scribe
of
the
complaint, visited P.W.-3 at the hospital and
was informed of the incident by P.W.-3 was
not examined by the prosecution to support
the version of P.W.-3 that the injured was in
a state of consciousness and was in a
position to speak. The police personnel that
carried the injured and admitted him to the
hospital was not examined. It is not the
case of the prosecution that initially FIR
was lodged under Section 307 IPC. The
medical officer/staff of the hospital was not
examined, nor, their statement taken of the
I.O.

32. Having regard to the postmortem
report and the testimony of the doctor P.W.-
5 it appears in all probability the injured
was not in a position to speak. The FSL
report was not produced by the I.O. In this
backdrop, the trial court committed gross
error in resting the conviction on the
disclosure statement of the accused, that
they committed the crime with the
recovered weapon which is not admissible
in evidence. The recovery of the alleged
assault weapon has not been connected
with the commission of the crime by the
prosecution.

33. Having regard to the facts and
circumstances of the case we are unable to
persuade ourselves to uphold the impugned
judgment and order of conviction and
sentence, therefore, appeal is liable to be
allowed and the impugned judgment and
order of conviction and sentence is liable to
be set aside.

34.

The
criminal
appeal
is,
accordingly,
allowed.
The
impugned
judgment and order of conviction and
sentence is set aside. The appellants are
directed to be released forthwith, if not
required in any other offence.

34. The appellants on being released
the mandate of Section 437-A Cr.P.C. to be
complied.

35. Let the lower court record be sent
back to court below along with a copy of
this judgment, for ascertaining necessary
compliance.

36. It is provided that fees assessed at
Rs. 20,000/- shall be released in favour of
Amicus Curiae.
----------
(2022) 10 ILRA 918
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

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

Criminal Appeal No. 6058 of 2018
with Criminal Misc. Appl. (Leave to Appeal)(D)
No. 108 of 2018

Mahendra Kumar ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Raj Karan Patel, Sri Ram Milan Mishra