# Ram Gopal @ Guddu v. The State of U.P. 1224 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 11 ILRA 1223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** Crl. Appl. No. 2362 of 2018
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-gopal-guddu-v-the-state-of-u-p-1224-indian-law-reports-allahabad-series-47985
- **Pages:** 20

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32(1)- Dying Declaration- Multiple
Dying
Declarations-
The
statement
recorded
by
the
police
has
lesser
important than the statement recorded by
the Tehsildar, doctor or any other person
as it is generally signed by the scriber
(sic) and doctor and the patient itself but
if there is no such statement and she is
(sic) died on account of the injuries
caused
to
her
in
the
incident,
the
statement recorded under Section 161
Cr.P.C.
becomes
relevant
and
the
conviction can be solely based upon such
statement if it inspire (sic) confidence-
While relying on the dying declaration, the
court has to look into whether the
statement
was
given
by
the
victim
voluntarily - As PW-7 stated that hospital
employees
and
neighbours
were
not
present in the room, it cannot be said that
the statement given by the victim was
under any duress, tutoring or prompting.

Merely because the dying declaration of the
deceased was recorded by the investigating
officer and not by the Magistrate or Doctor,
would not render the same inadmissible and
conviction of the accused can be secured solely
upon the basis of the said dying declaration
provided the same has been made voluntarily
and without any coercion or tutoring.

Indian Evidence Act, 1872- Section 32(1)-
Dying
Declaration-
Multiple
Dying
Declarations- When there are multiple
dying
declaration
(sic),
such
dying
declaration becomes doubtful but where
there
are
inconsistency
(sic)
and
contradictory statements in the dying
declaration (sic), they should be examined
in
the
light
of
surrounding
and
corroborating evidence, therefore, the
multiple dying declaration cannot be
thrown away on the very threshold. The
only rider is that the multiple dying
declaration should be examined in the
light of other evidence produced by the
prosecution during the trial or appeal.

Only when there are inconsistencies and
contradictions in multiple dying declarations that
the court has to look for corroboration.

Indian Evidence Act, 1872- Section 32(1)-
Dying Declaration- PW-1 and PW-2 are
not eye witnesses of the fact and they
were not present when the appellants set
the victim ablazed (sic). Therefore, if there
is omission in the manner of incident in
the statements of PW-1 and PW-2 that is
immaterial because the statement of
victim is intact regarding the manner of
incident. It is also pertinent to mention
here that the victim herself given (sic)
only one statement under Section 161
Cr.P.C. and no other than this statement is
recorded by any other person. Therefore
we are not agree (sic) with the argument
of learned counsel that there are multiple
dying declarations- From the evidence on
record, it is found that dying declaration
by the statement of victim recorded by the
Investigating Officer under Section 161
Cr.P.C. and relied by the Court under
Section 32 of the Indian Evidence Act are
(sic) reliable evidence and the evidence is
corroborated by the medical evidence as
well as the evidence of PW-1 and PW-2.

It is only the statement made by the deceased
before her death and which is intact and
trustworthy, that is relevant and admissible u/s
32 (1) of the Evidence Act while statements of
other witnesses are immaterial.

Indian Evidence Act, 1872- Section 154-
Hostile Witness- PW-3 is declared hostile
by ADGC- It is settled proposition of law
that the statement of hostile witness can
be relied upon to the extent that he
supports the prosecution case.

Settled law that the evidence of a hostile witness
cannot be discarded as a whole, and relevant parts
thereof which are admissible in law, can be used
by the prosecution or the defence.

Indian Evidence Act, 1872- Section 134- It
is the prerogative of the prosecution to
11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1225
prove their case by single witness or the
multiple witnesses and it is the reliability
and credibility of the witnesses and not
the number.

It is the quality and not quantity

## Text

_Characters 0–39,919 of 67,943. This is a partial read: ask again with offset=39919 for what follows._

11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1223

91. Following aspects emerge from the
discussion on the prosecution evidence:

(i) PW-2 neither witnessed the incident nor
he reached the place of occurrence. The victim
did not recieved any injury. The appellant was
arrested on 10/11.11.2008 at 2:30 a.m. (on the
date of the incident) from the room of the house
by PW-2. This gives rise to two possibilities.
One, no incident took place at 9:00 p.m. Two, the
incident of theft took place in the night of
10/11.11.2008 and PW-2 called the police, PW-3
SI Ranjit Dubey arrested the appellant. Three, the
victim was consenting party after seeing by
someone she lodged the FIR after 30 hours of the
incident.

(ii) The aforesaid possibilities derive
strength from the delay in lodging the FIR
despite the presence of police at the place of the
incident after calling, and reached there and
called the victim. In addition to that the incident
took place on the mid of the lawn, which is open
place.

92. On the basis of the facts and
circumstances discussed above, an inferrence can
easily be drawn that the prosecution case is
wholly based on sole testimony of PW-1 victim
and the evidence of the victim does not inspire
confidence. Therefore, the entire genesis of the
case is in serious doubt in view of the
contradictions and material inconsistencies.

93. The contrary view taken by the trial
court is against the weight of the evidence. I
hardly find objective evaluation, analysis, or
scrutiny of the testimony in a proper
persepective. The serious infirmities pointed out
by the defence raising doubt with regard to the
prosecution case have been brushed aside by the
learned trial judge by simply stating that the
delay in lodging the FIR does not affects the
prosecution case and there is no material
contradictions in the prosection evidence. The
trial court, in my view, was not right and justified
in lightly brushing aside the contradictions and
omissions borne out from the prosecution
evidence, that too, when the entire prosecution
rested on a sole testimony, PW-1 victim.

94. For all the reasons recorded and
discussed above, I am of the considered view
that the prosecution has failed to prove the
charge of offences punishable under Section 354,
376/511, IPC against the appellant beyond
reasonable doubt. As the evidence on record does
not bring home the guilt of the appellant beyond
the pale of doubt, the appellant is entitled to the
benefit of doubt. Consequently, the appellant is
entitled to be acquitted of all the charges for
which he was tried.

95. As a result, the criminal appeal is
allowed. The judgment and order of conviction
as well as sentence recorded by the trial court is
set aside. The appellant is acquitted of all the
charges for which he has been tried. The
appellant is released after completing the
sentence as awarded by the trial court as
informed by learned amicus curiae and AGA.

96. The trial court record be returned
forthwith together with a certified copy of this
judgment.
----------
(2022) 11 ILRA 1223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.11.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Crl. Appl. No. 2362 of 2018
with Crl. Appeal Nos. 1993 of 2018 and 2242 of
2018

Ram Gopal @ Guddu ...Appellant
Versus
The State of U.P. ...Respondent
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Arun Sinha

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32(1)- Dying Declaration- Multiple
Dying
Declarations-
The
statement
recorded
by
the
police
has
lesser
important than the statement recorded by
the Tehsildar, doctor or any other person
as it is generally signed by the scriber
(sic) and doctor and the patient itself but
if there is no such statement and she is
(sic) died on account of the injuries
caused
to
her
in
the
incident,
the
statement recorded under Section 161
Cr.P.C.
becomes
relevant
and
the
conviction can be solely based upon such
statement if it inspire (sic) confidence-
While relying on the dying declaration, the
court has to look into whether the
statement
was
given
by
the
victim
voluntarily - As PW-7 stated that hospital
employees
and
neighbours
were
not
present in the room, it cannot be said that
the statement given by the victim was
under any duress, tutoring or prompting.

Merely because the dying declaration of the
deceased was recorded by the investigating
officer and not by the Magistrate or Doctor,
would not render the same inadmissible and
conviction of the accused can be secured solely
upon the basis of the said dying declaration
provided the same has been made voluntarily
and without any coercion or tutoring.

Indian Evidence Act, 1872- Section 32(1)-
Dying
Declaration-
Multiple
Dying
Declarations- When there are multiple
dying
declaration
(sic),
such
dying
declaration becomes doubtful but where
there
are
inconsistency
(sic)
and
contradictory statements in the dying
declaration (sic), they should be examined
in
the
light
of
surrounding
and
corroborating evidence, therefore, the
multiple dying declaration cannot be
thrown away on the very threshold. The
only rider is that the multiple dying
declaration should be examined in the
light of other evidence produced by the
prosecution during the trial or appeal.

Only when there are inconsistencies and
contradictions in multiple dying declarations that
the court has to look for corroboration.

Indian Evidence Act, 1872- Section 32(1)-
Dying Declaration- PW-1 and PW-2 are
not eye witnesses of the fact and they
were not present when the appellants set
the victim ablazed (sic). Therefore, if there
is omission in the manner of incident in
the statements of PW-1 and PW-2 that is
immaterial because the statement of
victim is intact regarding the manner of
incident. It is also pertinent to mention
here that the victim herself given (sic)
only one statement under Section 161
Cr.P.C. and no other than this statement is
recorded by any other person. Therefore
we are not agree (sic) with the argument
of learned counsel that there are multiple
dying declarations- From the evidence on
record, it is found that dying declaration
by the statement of victim recorded by the
Investigating Officer under Section 161
Cr.P.C. and relied by the Court under
Section 32 of the Indian Evidence Act are
(sic) reliable evidence and the evidence is
corroborated by the medical evidence as
well as the evidence of PW-1 and PW-2.

It is only the statement made by the deceased
before her death and which is intact and
trustworthy, that is relevant and admissible u/s
32 (1) of the Evidence Act while statements of
other witnesses are immaterial.

Indian Evidence Act, 1872- Section 154-
Hostile Witness- PW-3 is declared hostile
by ADGC- It is settled proposition of law
that the statement of hostile witness can
be relied upon to the extent that he
supports the prosecution case.

Settled law that the evidence of a hostile witness
cannot be discarded as a whole, and relevant parts
thereof which are admissible in law, can be used
by the prosecution or the defence.

Indian Evidence Act, 1872- Section 134- It
is the prerogative of the prosecution to
11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1225
prove their case by single witness or the
multiple witnesses and it is the reliability
and credibility of the witnesses and not
the number.

It is the quality and not quantity of evidence,
which is relevant. (Para 41, 50, 53, 58, 59, 62,
63)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Mehiboobsab Abbasabi Nadaf Vs St. of Kar.,
(2007) 13 SCC 112 (cited)

2. St. of Punj. Vs Praveen Kumar Crl. Appeal No.
633 of 1999 dec. on 18.11.2004 (Manupatra)
(cited)

3. Sanjay Vs St. of Maha. ,(2007) 9 SCC 148
(cited)

4. Amol Singh Vs St. of M.P., (2008) 5 SCC 468
(cited)

5. Heikrujam Chaoba Vs St. of Mani., (1999) 8
SCC 458 (cited)

6. Uttam Vs The St. of Maha. Crl. Appeal No.
485 of 2012

7. Kundula Bala Subrahmanyam & anr. Vs St. of
A.P (1993) 2 SCC 684

8. Shudhakar Vs St. of M.P., (2012) 7 SCC 569

9. Paniben (Smt.) Vs St. of Guj.(1992) 2 SCC
474

10. Lakhan Vs St. of M.P. (2010) 8 SCC 514

11. Amol Singh Vs St. of M.P., (2008) 5 SCC 468

12. Rajesh Yadav & anr. etc. Vs St. of U.P. in Crl.
Appeal No. 339-340 of 2014 dec. on 04.02.2022

13. Attar Singh Vs St. of Maha. in Crl. Appeal
No. 1091 of 2010, dec. on 14.12.2012

14. Amar Singh Vs Balwinder Singh & ors. in
Crl. Appeal No. 1671 of 1995, dec. on
31.01.2003
15. Anant Mohanto Vs St. of Orrisa , AIR 1979
SC 1433

16. Vishram Vs St. of M.P., AIR 1993 SC 250

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. The present criminal appeal No.
2362 of 2018 has been filed on behalf of
appellant-Ram Gopal @ Guddu under
Section 374(2) Cr.P.C. against the judgment
and order dated 24.10.2018 passed by
Mukesh Kumar Singh, Additional Sessions
Judge/Special Judge Anti Corruption, Court
No. 6, Lucknow in Sessions Trial No. 1042
of 2010 (State Vs. Ram Gopal @ Guddu),
arising out of Case Crime No. 168 of 2010,
under Sections 147, 302 IPC, Police Station
Hasanganj, District Lucknow, convicting
and sentencing the appellants to undergo
imprisonment for two years under Section
147 IPC and further convicting and
sentencing the appellants to undergo
imprisonment for life and fine of Rs. 5000/-
under Section 302 read with 34 IPC and in
default of payment of fine to undergo a
further period of three months additional
imprisonment in addition.

2. Criminal Appeal No. 1993 of 2018
has been filed on behalf of appellat-Munnu
Pandit @ Mahesh Kumar against the
judgment and order dated 24.10.2018
whereby the appellant-Munnu Pandit @
Mahesh has been convicted and sentenced
as above.

3. Criminal appeal No. 2242 of 2018
has been filed on behalf of appellants,
Pappu, Mangla, Smt. Radha and Kamla
Devi against the judgment and order dated
24.10.2018 whereby the appellants have
been convicted and sentenced as above.

4. Feeling aggrieved by the aforesaid
judgment and order dated 24.10.2018, the
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellants
have
preferred
the
aforesaid three appeals. Since, common
factual matrix and law involved in the
aforementioned appeals and they have been
filed against the same impugned judgment,
therefore, they are being decided by a
common order.

5. Wrapping the facts in brief is that
the complainant of the case Lal Ji lodged
an FIR to the effect that on 25.04.2010
Ram Gopal @ Guddu, Pappu Sons of
Mahavir, Mangla daughter of Mahavir,
Munnu Pandit and wives of Guddu @ Ram
Gopal and Pappu called and carried his
mother to the house of accused-Ram Gopal
@ Guddu and sprinkling kerosene oil upon
her, set her ablaze. Her mother was badly
injured. He admitted his mother in serious
condition in Civil Hospital, Hazaratganj,
Lucknow with the assistance of his
neighbours. Neighbours Shravan Kumar
Dixit S/o Ramesh Chandra Dixit, Sanjay
Kumar S/o Laddan Gupta and my wife
Ramawati Devi had seen the whole
incident and tried to save his mother. On
hue and cry, many of his neighbours
gathered at the place of occurrence. His
mother is hospitalized and later on died due
to injuries caused by the accused persons.

6. On the basis of written report, a
Case Crime No. 168 of 2010, under
Sections
307
IPC,
Police
Station
Hasanganj,
District
Lucknow
was
registered on 25.04.2010 and after the
death of injured Durga Devi again a written
information was given by the complainant
to the police station that his mother died
due to injuries caused by the accused.

7. Autopsy of the deceased was
conducted by Hasanganj police and on the
same day, the deceased was sent for getting
postmortem through Constable Chandra
Kumar,
Police
Station
Hazaratganj,
Lucknnow. The fact is recorded in ''Nakal
Rapat' No. 49 at 20:50 dated 01.05.2010,
alongwith necessary papers, memo, copy of
GD,
copy
of
report,
photonash,
Chalannash,
namuna
nash.
The
Investigating
Officer
recorded
the
statement of injured Smt. Durga Devi and
prepared the site plan and after collecting
the
sufficient
evidences
against
the
accused, filed chargehseet no. 162 of 2010
in the Court concerned.

8. The Magistrate concerned had
taken
cognizance
of
the
case
and
summoned
the
accused
persons
and
committed the case to the court of Sessions
after compliance of provisions under
Section 207 of the Cr.P.C. On the basis of
written report, the chik report was prepared
and endorsed in GD no. 35 at about 16:40
hours.

9. The accused were summoned by
the court of Sessions and charge framed
under Section 302 read with Section 149
Cr.P.C. against Ram Gopal @ Guddu,
Pappu, Mangla, Munnu Pandit @ Mahesh
Kumar, Radha and Kamla and read over to
accused. The accused abjured from the
charges levelled against them and claimed
to be tried.

10. In order to prove this case against
accused, prosecution adduced 9 witnesses,
namely, PW-1 Lal Ji, the complainant of
the case, PW-2 Shravan Kumar Dixit, eye
witness of the case and witness of fact, who
tried to save the deceased, PW-3 Neeraj,
PW-4 Dr. S.N. Pandey who conducted
postmortem in the body. PW-5 HCP
Asharaf Ali Khan who prepared the chik
report and GD, PW-6 SI Kameshwar
Singh who prepared the inquest and
conducted autopsy, PW-7 SI Shambhu
11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1227
Nath Tiwari who recorded the statement of
witnesses, inspected and prepared the site
plan and recovered the towel and ''Dhibari'
and prepared recovery memo thereof
(Exhibit-Ka-12),
PW-8
SHO
Vinay
Kumar
Gautam
who
recorded
the
statement of accused Ram Gopal @ Guddu
son of Mahavir, Kamla W/o Pappu, Mangla
W/o Ram Chandra and recorded the
statements of witnesses of inquest, namely,
Srilal, Ram Adhar, Ram Kumar, Budharam
and Santram. He recorded the statement of
witnesses Rameshwar, Tuntun and Rajesh
Kumar and scriber of the FIR and
statements of SI Shambhu Nath Tiwari and
SI
Rameshwar
Singh
and
Constable
Bheemsen and filed chargesheet.

The prosecution adduced and proved
the following papers:

(i) Written reports, Exhibit Ka-1 and
Ka-2

(ii) Inquest report, Exhibit Ka-6

(iii) Site Plan, Exhibit Ka-12

(iv) Copy of GD, Exhibit Ka-5

(v) Chalan Nash, Exhibit Ka-7

(vi) Photo Nash, Exhibit Ka-8

(vii) Specimen Seal, Exhibit Ka-9

(viii) Letter to Kotwali, Hazaratganj,
Lucknow, Exhibit Ka-10

(ix) Death report, Exhibit-Ka11

(x) Chargesheet, Exhibit Ka-14

11. After conclusion of the evidence,
the statements of the accused recorded under
Section 313 Cr.P.C. All the accused denied
from the commission of crime and stated that
they are falsely implicated due to enmity.
Accused Ram Gopal stated that he was not
present at the place of occurrence as he went
to Kanpur for purchasing Coconut in answer
to the question no. 2.

12. After perusal of the record and
hearing of the submissions advanced by the
learned Government Counsel and learned
Counsel for the accused, the trial court
reached to the conclusion that all the
accused are named in the First Information
Report. The Investigating Officer recorded
the statement of the injured Smt. Durga
Devi on the same day on which day the
incident occurred i.e. 25.04.2010 and
learned court treated the statement of
injured as her dying declaration under
Section 162(2) of Cr.P.C and Section 32(1)
of the Indian Evidence Act as she died due
to injuries caused to her by the said
accused. Learned trial court found that
deceased stated about the role of all the six
accused and their participation in the
incident. PW-2, Shravan Kumar Dixit is an
independent witness who corroborated the
testimony of the deceased Durga Devi.
Recovery of Towel and ''Dhibari' was made
from the threshold of the house of the
accused Ram Gopal, therefore, the court
convicted and sentenced all the six accused
persons under Section 302 read with 34
IPC and punished them accordingly.

13. Heard Sri Arun Sinha, learned
counsel for the appellants in the present
appeal as well as in Criminal Appeal No.
2242 of 2018, Sri Amarjeet Singh Rakhra,
learned counsel for the appellant in
Criminal Appeal No. 1993 of 2018, Sri
Arunendra, learned Additional Government
Advocate for the State and perused the
record.

14. Learned counsel for appellantMunnu Pandit @ Mahesh Kumar argued
that he is not named in the FIR. He is not
implicated in the case. No role is assigned
to him during the course of incident. He has
no motive to commit the crime. PW-3 is
completely hostile and PW-2 who is said to
be eye witness of the incident also denied
his role in the commission of crime.
1228 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Learned counsel for rest of the
appellants stated that learned court below
misinterpreted the evidence as there is no
dying declaration of the deceased. The date
of incident is said to be 25.04.2010 and the
deceased expired on 01.05.2010. There was
ample time to record the statement of the
deceased in the form of dying declaration
but the Investigating Officer made no effort
to do so and the trial court relied on the
statement of the deceased while being alive
recorded by the Investigating Officer under
Section 161 of Cr.P.C. There are many
discrepancies in the statement the deceased
herself and the statements of PW-1 and
PW-2 recorded in the course of trial.

16. On the contrary, learned AGA
vehemently
opposed
the
arguments
advanced by learned counsel for the
appellants and stated that PW-2, alongwith
PW-3 and two others, namely, Sanjay and
Vikki was standing in front of his house
with the intention to have a bath in the river
when he saw the incident and tried to save
the victim and took the victim, injured to
the hospital. The statement of the victim
was recorded by the Investigating Officer
on very day of incident in hospital which
was rightly believed by the trial court. The
judgment passed by the trial court is in
consonance with the facts and law and is
liable to be uphold.

17. The PW-1, Lal ji stated on oath
that accused Ram Gopal, Pappu and their
wives Radha, Kamla and sister Mangla
took her mother forcibly to their house, tied
her hands, sprinkled kerosene oil and set
her ablazed. His mother came out of their
house raising alarm to save her. Shravan
Kumar Dixit , PW-2 alongwith other
neighbours gathered and informed the
police. The complainant was informed by
one Tuntun, brother of Shravan Kumar,
about the incident. He reached to Daliganj
bridge on the information received from
Tuntun, the brother of Shravan Kumar
Dixit where Shravan Kumar Dixit was
taking his mother to the Trauma Centre,
Medical College, Lucknow. Doctor refused
to admit her and referred her to Balrampur
Civil Hospital. The victim was carried to
Civil Hospital Balrampur by police Jeep
and got her admitted, then the complainant
lodged the FIR in the concerned police
station. This witness proved the written
report as Exhibit Ka-1. It is also stated by
this witness that his mother informed him
before her death that Ram Gopal, Pappu
and their wives and sister Mangla set her
ablazed. He alleged that there was previous
enmity between his mother and the accused
as the accused wanted to grab her house
and have also taken the earnest money for
her house.

18. PW-2 Shravan Kumar Dixit
deposed that he was standing in front of his
house alongwith Vikki, Neeraj, Sanjay and
Kapil. Ram Gopal called Durga Devi, the
deceased to his house. After some time,
Durga Devi came out of the house in
burning condition followed by accused
Ram Gopal @ Guddu, Pappu, Mangla,
Munnu Pandit, Radha and Kamla who were
threatening her. He alongwith his friends
tried to save the victim by their Towel.
They too sustained injuries by ''Danda'
inflicted by Ram Gopal @ Guddu, Pappu,
Mangla, Munnu Pandit, Radha and Kamla.
They rescued the victim to Balrampur
hospital. On the way, he was told by the
victim Durga Devi that Ram Gopal called
her to his house, where Mangla, Munnu
Pandit, Radha and Kamla were already
present. All of them sprinkled kerosene oil
on her and set her ablazed. Both hand of
the victim were tied with piece of cloth
which he released. PW-2 stated that she
11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1229
was taken to said hospital by police jeep
and during the treatment she expired on
01.05.2010. The witness identified all the
accused during the trial in the court. PW-3
Neeraj was declared hostile by AGDC,
however he stated that when he came out
from his house, he saw a woman buring
and people were gathered around her. He
stopped for 5 to 10 minutes and then he
went away.

19. PW-4 Dr. S.N. Pandey, Senior
consultant,
radiologist
conducted
the
autopsy of the body of the deceased in the
mortuary of medical university, Lucknow
on 01.05.2010 at 2:40 p.m. which was
brought by Constable 1670 Bheemsen and
Head Constable 1817 Chandra Kumar.

20. Following antemortem injuries
were found on the body of deceased:

(i) Superficial to deep septic burn
would present on all over the body except
both buttock sacral region public region,
both back of thigh and both leg with both
sole.

(ii) Pus slugh debris with unhealthy
granulation tissues present in burn wound.
On opening and section cutting of both
lung, liver, spleen and both kidneys.

(iii)Multiple pus foci seen at places.
Membranes, brain and pleura, left lung and
pericardium congested. The death of
deceased opined by the doctor "due to
septisemia as a result of antemortem burn
wound".

21. PW-5 HCP Ashraf Ali deposed in
Court that on 25.04.2010 at about 16:50
p.m., Lal Ji son of Late Rameshwar
submitted a written report sighed by him on
police station. On the basis of written
report, Crime No. 168 of 2010, under
Section 307 IPC was registered against
Ram Gopal @ Guddu, Pappu, Mangla,
Munnu Pandit, Radha and Kamla. The
written report was endorsed in GD No. 35
at 16:50 p.m. by Head Constable Ram
Prakash Prajapati as Exhibit Ka-5 and
investigation was handed over to SI
Shambhu Nath Tiwari.

22. PW-6 SI Kameshwar Singh
deposed that he conducted autopsy on the
body of the deceased in the presence of
witnesses and proved the inquest report as
Exhibit Ka-6.

23. PW-7 SI Shambhu Nath Tiwari
deposed in Court that he recorded the
statements of the witnesses and wife of the
complainant and recovered ''Dhibari' and
Towel from the house of the accused Ram
Gopal and prepared recovery memo as
Exhibit Ka-12.

24. PW-8 SHO Vinay Kumar Gautam
stated on oath that he arrested the accused
and recorded the statements of witnesses of
inquest and statements of Rameshwar,
Tuntun and Rajesh.

25. When the accused were asked to
adduce evidence in their defence, the
accused adduced DW-1 Ramesh Chandra
Srivastava who deposed in Court that he
was not summoned by the Court but
accused Munnu was present in his house
and joined the uninterrupted recital of
Ramcharitmanas. He remained there from
7:00 a.m. till 8 to 9 p.m. alongwith his
family members.

DISCUSSIONS:

26. PW-1 is not eye witness. It
transpires from the record that he was
informed by Tuntun, the brother of Shravan
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Dixit, PW-2 regarding the incident
and when he reached to the bridge of
Daliganj, Shravan Kumar was taking his
mother to Trauma Centre, KGMU. PW-2 is
eye witness who was standing in front of
his house and was preparing for taking bath
in river, when he saw the victim coming out
from the house of the accused Ram Gopal
in burning condition. Immediately they
tried to put off fire by their Towel and
carried her to Balrampur Hospital by
Riksha to Trauma Centre and thereafter he
accompanied victim and complainant to
Civil Hospital, Balrampur alongwith police
constables.

27. PW-3, however declared hostile
but he proved this fact that when he came
out from his house, he saw a woman in
burning condition and there was crowed
also.

28. Learned counsel for all the accused
stated that there is no dying declaration as
contemplated by the law and learned trial
court treated the statement of victim
recorded under Section 161 Cr.P.C. by
Investigation Officer as evidence under
Section 162(2) Cr.P.C. and Section 32 of
the Indian Evidence Act. It also argued that
there are multiple dying declaration. One is
recorded by the Investigating Officer, the
second which victim told to her son, the
complainant after three days of incident
and third she revealed the incident to PW-2
Shravan Kumar Dixit when he was taking
her to KGMU. All the three dying
declaration have sharp contradictions and
they do not build confidence to be believed
to the extent to convict, the accused in the
crime. PW-1 admitted in his crossexamination that her mother told him that
the accused sprinkled kerosene oil and set
her ablazed, after three days of incident.
PW-2 stated that the victim told him about
this incident when he was taking her to
Balrampur Hospital that Ram Gopal @
Guddu called her to his house where
Pappu, Radha Devi, Kamala Devi, Mangala
and Munnu all were already present and all
of them collectively set her ablazed.
Learned trial court mentioned the statement
of the victim recorded under Section 161
Cr.P.C. and made it part of judgment. Smt.
Durga Devi, the injured stated that at about
02:30 p.m. when she was at her home, her
cousin Ram Gopal @ Guddu, Pappu and
her sister Mangla and wives of Ram Gopal
@ Guddu and Pappu and their neighbour
Munnu Pandit came and called her for
consultation, as soon as she entered their
house, all of them put plastic sheet on her
and tied her hand, Ram Gopal sprinkled
kerosene oil and when she shouted that
what are they doing, the wife of Ram Gopal
set her ablazed and her body started
burning. Shouting and crying when she
came out of the house, whole of her body
had burnt. One of the boy put his towel on
her and tried to put off the fire. She was
crying, her daughter-in-law was weeping
and the victim was admitted in hospital and
she stated in her statement that she has no
hope of life as the accused burnt her like
monsters and her body was paining and
throat is drying. The statement of victim
was recorded on the date of occurrence
itself, so there is no probability to distort
the actual incident.

29. Learned counsel for the appellants
argued that there are contradictions in the
statements of PW-1 and PW-2 as the PW-1
told that Pappu, Mangla, Smt. Radha and
Kamla Devi came to call her while PW-2
stated that injured told him that Ram Gopal
@ Guddu came to call her alone and Coappellants Mangala, Radha, Kamla were
sitting in the house, however, the deceased
herself stated to the Investigating Officer
11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1231
that all the accused came to her house to
call her. Of course there is discrepancies in
the statements of PW-1, PW2 and in the
statement
of
the
victim
given
to
Investigating Officer but in all the three
statements, the presence of all the accused
is found there. The statement recorded by
the Investigating Officer is victim's first
hand statement, however the statement
given by PW-1 and PW-2 is reproduced by
them on the basis of their memory.

30. It is pertinent to mention here that
the statement of PW-1 is recorded on
21.01.2011 and concluded on 11.05.2011,
approximately after one year of the
incident. The statement of PW-2 Shravan
Kumar Dixit was recorded from 26.05.2011
to 04.07.2013 in segments. However, the
statement of victim was recorded under
Section 161 Cr.P.C. on the date of incident,
therefore, there is no reason to disbelieve
the statement of victim. Moreover, it is also
pertinent to mention that while recording
the
statement
of
the
victim,
the
Investigating
Officer
recorded
the
demeanour of the victim also. The
statement of the victim is also aspire
confidence as in her own statement she
stated that she has no hope of life and
Hon'ble Apex Court held in several
judgments that no one would lie on the last
bed. The discrepancies in the statement of
the PW-1 and PW-2 and the victim are not
of such a nature that the statement of the
victim could be disbelieved.

31. The deceased in her statement
mentioned that accused tied her hands by
plastic sheet that also corroborates by the
evidence of PW-2 Shravan Kumar Dixit who
stated in his statement that the hands of the
victim were tied which she released
thereafter. The deceased victim assigned the
role of setting fire on the wife of Ram Gopal.
Learned trial court explained that the accused
Radha Devi is wife of Ram Gopal who was
medically examined at time of arrest and
abrasions were found on her head and nose
which also proves her involvement in the
commission of crime.

32. Learned trial court mentioned in its
judgment that if the statement of the victim is
recorded by the Investigating Officer under
Section 162(2) of Cr.P.C. and later on the
victim expires due to the injuries caused, the
statement shall be admissible in evidence
under Section 32(1) of the Indian Evidence
Act. For ready reference Section 162(2) of
the Cr.P.C. is quoted hereunder:

Section 162(2) in The Code Of
Criminal Procedure, 1973

"(2) Nothing in this section shall be
deemed to apply to any statement falling
within the provisions of clause (1) of section
32 of the Indian Evidence Act, 1872 (1 of
1872 ), or to affect the provisions of section
27 of that Act. Explanation.- An omission to
state a fact or circumstance in the statement
referred to in sub- section (1) may amount to
contradiction if the same appears to be
significant and otherwise relevant having
regard to the context in which such omission
occurs and whether any omission amounts to
a contradiction in the particular context shall
be a question of fact."

33. It is argued by learned counsel that
the victim expired on 01.05.2010, seven days
after the incident but no dying declaration
recorded during this period which shows that
there was no such injuries and no need to
record the dying declaration.

34. It is true that the statement
recorded by the police has lesser important
than the statement recorded by the
Tehsildar, doctor or any other person as it is
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
generally signed by the scriber and doctor
and the patient itself but if there is no such
statement and she is died on account of the
injuries caused to her in the incident, the
statement recorded under Section 161
Cr.P.C.
becomes
relevant
and
the
conviction can be solely based upon such
statement if it inspire confidence. Section
32(1) of the Indian Evidence Act is quoted
as under:

Section
32(1)
in
The
Indian
Evidence Act, 1872

"When it relates to cause of death--
When the statement is made by a person as
to the cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person's death comes into
question. Such statements are relevant
whether the person who made them was or
was not, at the time when they were made,
under expectation of death, and whatever
may be the nature of the proceeding in
which the cause of his death comes into
question."

35. Learned counsel for the appellants
relied upon the judgment of Hon'ble Apex
Court
rendered
in
the
case
of
Mehiboobsab Abbasabi Nadaf Vs. State
of Karnataka reported in [(2007) 13 SCC
112], wherein Hon'ble Apex Court held
that:

"Conviction can indisputably be based
on a dying declaration. But, before it can
be acted upon, the same must be held to
have
been
rendered
voluntarily
and
truthfully.
Consistency
in
the
dying
declaration is the relevant factor for
placing full reliance thereupon. In this
case, the deceased herself had taken
contradictory and inconsistent stand in
different
dying
declarations.
They,
therefore, should not be accepted on their
face value. Cation, in this behalf, is
required to be applied.

36. Hon'ble Apex Court relying upon
the case law of Balbir Singh Vs. State of
Punjab reported in [(2006) 12 SCC 283]
and in the case of Muthu Kutty Vs. State
reported in [(2005) 9 SCC 113] held:
(Balbir Singh Case, SCC Page 291, Para
34 as under:

We are of the opinion that whereas the
findings of the learned Sessions Judge as
also the High Court in regard to the guilt of
appellant I must be accepted, keeping in
view the inconsistencies between the two
dying declarations, benefit of doubt should
be given to Appellant 2. We, however,
uphold the conviction and sentence of both
the appellants under Section 498-A IPC."

37. Learned counsel for the appellants
relied upon the judgment given the case of
State of Punjab Vs. Praveen Kumar in
Criminal Appeal No. 633 of 1999 decided
on 18.11.2004 published in Manupatra,
wherein Hon'ble Apex Court held that:

"While appreciating the credibility of
the evidence produced before the Court, the
Court must view evidence as a whole and
come to a conclusion as to its genuineness
and truthfulness. The mere fact that two
different versions are given but one name is
common in both of them cannot be a
ground for convicting the named person.
The court must be satisfied that the dying
declaration is truthful. If there are two
dying declarations giving two different
versions, a serious doubt is created about
the truthfulness of the dying declaration. It
may be that if there was any other reliable
evidence on record, this Court could have
considered such corroborative evidence to
11 All. Ram Gopal @ Guddu Vs. The State of U.P.
1233
test
the
truthfulness
of
the
dying
declarations."

38. Learned counsel relied upon the
case of Sanjay Vs. State of Maharashtra
reported in [(2007) 9 SCC 148]. In this
case Hon'ble Apex Court held that:

"In our opinion in view of the different
dying declarations, it would not be safe to
uphold the conviction of the appellant and
we have to give him the benefit of doubt. It
cannot be said in this case that prosecution
has proved the appellant's guilt under
Section 306 IPC of abetting the suicide
beyond reasonable doubt."

39. Learned counsel for the appellants
relied upon the judgment rendered in the
case of Amol Singh Vs. State of Madhya
Pradesh reported in [(2008) 5 SCC 468],
wherein Hon'ble Apex Court Ruled that:

"If
the
deceased
had
several
opportunities
of
making
such
dying
declarations, that is to say, if there are
more than one dying declaration they
should be consistent. However, if some
inconsistencies are noticed between one
dying declaration and the other, the Court
has
to
examine
the nature
of
the
inconsistencies, namely, whether they are
material or not. While scrutinizing the
contents of various dying declarations, in
such situation, the court has to examine the
same in the light of the various surrounding
facts and circumstances."

40. Learned counsel for the appellants
argued that Hon'ble Supreme Court has
decided that if there are multiple dying
declaration, the dying declaration becomes
doubtful and such a dying declaration
cannot be relied upon for the conviction of
the appellants.

41. We are agree with the point of
learned counsel and the law laid down by the
Apex Court that when there are multiple dying
declaration, such dying declaration becomes
doubtful but in all the law laid down and cited
before this Court, Hon'ble Supreme Court held
that where there are inconsistency and
contradictory
statements
in
the
dying
declaration, they should be examined in the
light of
surrounding
and
corroborating
evidence, therefore, the multiple dying
declaration cannot be thrown away on the very
threshold. The only rider is that the multiple
dying declaration should be examined in the
light of other evidence produced by the
prosecution during the trial or appeal.

42. In the instant case, the date of
occurrence is 25.04.2010 and the victim
expired on 01.05.2010 and the dying
declaration as such argued by learned counsel
for appellants is not recorded by Tehsildar,
Doctor or any other person and the trial court
treated the statement of victim under Section
161 Cr.P.C. as dying declaration as admissible
under Section 32 of the Indian Evidence Act.

43. The victim told for the first time to
PW-2 Shravan Kumar Dixit about the manner
of incident and when PW-1, the son of the
victim, joined him while PW-2 was carrying
the victim to hospital, she also informed his
son about the incident. PW-1 and PW-2 had
reproduced in court what the victim told them.
However, the statement of victim herself was
recorded on the date of incident itself on
25.04.2010 and it was first hand information
given to Investigating Officer. We are aware of
the fact that any information passes through
many person then some changes occurr in the
subsequent statement.

44. PW-7, Shambhu Nath Tiwari
deposed in Court that he recorded the
statement of the victim in hospital and due
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
to paucity of time, the statement of doctor
was not recorded and the statement of
victim could not be recorded in the
presence of Magistrate. He also stated in
his statement that victim was badly injured
when he recorded her statement, hospital
employees and neighbours of the victim
were not present. They were outside of the
room. This fact is also to be taken into
account that Investigating Officer did not
record the statement of victim in the form
of dying declaration. He simply recorded
the statement under Section 161 Cr.P.C.,
therefore the formalities to be at the time of
dying declaration were not made. Later on
when the victim died, the statement was
read as dying declaration by the court.
While relying on the dying declaration, the
court has to look into whether the statement
was given by the victim voluntarily as PW7 stated that hospital employees and
neighbours were not present in the room, it
cannot be said that the statement given by
the victim was under any duress, tutoring
or prompting.

45. Hon'ble Apex Court in Para 3 of
the judgment rendered in the case of
Heikrujam Chaoba Vs. State of Manipur
reported in [(1999) 8 SCC 458] has held as
under:

"3.An oral dying declaration no doubt
can form the basis of conviction, through
the Courts seek for corroboration as a rule
of
prudence.
But
before
the
said
declaration can be acted upon, the Court
must be satisfied about the truthfulness of
the same and that the said declaration was
made by the deceased while he was in a fit
condition to make the statement. The dying
declaration has to be taken as a whole and
the witness who deposes about such oral
declaration to him must pass the scrutiny of
reliability......"

46. Hon'ble Apex Court in the
judgment given in the case of Uttam Vs.
The State of Maharashtra in Criminal
Appeal No. 485 of 2012 has held in Para
nos. 12, 13, 14, 16, 17, 18, 21 and 23 as
under:

12.
In
Kundula
Bala
Subrahmanyam and Another v. State of
Andhra Pradesh reported in [(1993) 2
SCC 684]14, this Court had highlighted the
significance of a dying declaration in the
following words :

"18. Section 32(1) of the Evidence Act
is an exception to the general rule that
hearsay
evidence
is
not
admissible
evidence and unless evidence is tested by
cross-examination, it is not creditworthy.
Under Section 32, when a statement is
made by a person, as to the cause of death
or as to any of the circumstances which
result in his death, in cases in which the
cause of that person's death comes into
question, such a statement, oral or in
writing, made by the deceased to the
witness is a relevant fact and is admissible
in evidence. The statement made by the
deceased, called the dying declaration,
falls in that category provided it has been
made by the deceased while in a fit mental
condition. A dying declaration made by
person on the verge of his death has a
special sanctity as at that solemn moment,
a person is most unlikely to make any
untrue statement.