# Ram Kishore v. State of U.P

- **Citation:** (2023) 8 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-02
- **Case number:** Criminal Appeal No. 259 of 1982
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishore-v-state-of-u-p-50585
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 302 & 394 - Punishment for
murder - Dying declaration - Relevancy of
- Code of Criminal Procedure, 1973 -
Sections 161, 232 & 313 - Indian Evidence
Act, 1872 - Section 32(1) - Deceased
lodged FIR against three accused persons,
alleged
that
appellant
fired
gun
at
deceased - During treatment, his condition
became critical - Doctor called Tehsildar
for recording St.ment. (Para 2, 5, 7)

PW-12, accompanied deceased at time of
occurrence, supported prosecution but
refused to identify accused persons - Rest
of persons, who were seen with deceased
instead of being cited as witnesses,
arraigned as accused - No other person
present at time of occurrence - Only direct
evidence was dying declaration, basis of
conviction - According to doctor, injuries
in ordinary course sufficient to cause
death of any man, thus deceased was
murdered. (Para 15)

PW-8 St.d injured was in condition to
speak, doctor given same opinion, when
Statement was recorded, only doctor was
present - PW-8 proved dying declaration,
prepared in his own handwriting, bears
opinion of PW-7 about his health condition
- PW-7 St.d patient was conscious at time
of recording of Statement by PW-8, entry
was made on Bed Head Ticket - Thus
Statement was trustworthy, not tutored.
(Para 20)

Appeal dismissed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,785 of 47,114. This is a partial read: ask again with offset=39785 for what follows._

8 All. Ram Kishore Vs. State of U.P.
77

(37) The accused-appellant is on bail.
Her bail bonds are canceled and sureties are
discharged.

(38) Office is directed to transmit the
lower court record along with a copy of the
judgment to the Court concerned forthwith
for information and follow up action.
----------
(2023) 8 ILRA 77
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 259 of 1982

Ram Kishore ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajesh Kumar Singh, Sri Raghvendra
Dwivedi, Sri Satish Chandra Dubey, Sri
Chandra Prakash Garg, Sri N.K. Roy, Sri
B.P. Singh

Counsel for the Respondent:
D.G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 302 & 394 - Punishment for
murder - Dying declaration - Relevancy of
- Code of Criminal Procedure, 1973 -
Sections 161, 232 & 313 - Indian Evidence
Act, 1872 - Section 32(1) - Deceased
lodged FIR against three accused persons,
alleged
that
appellant
fired
gun
at
deceased - During treatment, his condition
became critical - Doctor called Tehsildar
for recording St.ment. (Para 2, 5, 7)

PW-12, accompanied deceased at time of
occurrence, supported prosecution but
refused to identify accused persons - Rest
of persons, who were seen with deceased
instead of being cited as witnesses,
arraigned as accused - No other person
present at time of occurrence - Only direct
evidence was dying declaration, basis of
conviction - According to doctor, injuries
in ordinary course sufficient to cause
death of any man, thus deceased was
murdered. (Para 15)

PW-8 St.d injured was in condition to
speak, doctor given same opinion, when
Statement was recorded, only doctor was
present - PW-8 proved dying declaration,
prepared in his own handwriting, bears
opinion of PW-7 about his health condition
- PW-7 St.d patient was conscious at time
of recording of Statement by PW-8, entry
was made on Bed Head Ticket - Thus
Statement was trustworthy, not tutored.
(Para 20)

Appeal dismissed. (E-14)

List of Cases cited:

1. Khushal Rao Vs St. of Bombay 1958 SCR 552:
AIR 1958 SC 22: 1958 Cri LJ 106

2. Laxman Vs St. of Mah., (2002) 6 SCC 710

3. Poonam Bai Vs St. of Chhattisgarh, (2019) 6
SCC 145

4. Jayamma & anr. Vs St. of Karn., (2021) 6 SCC
213
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Ms. Nand Prabha Shukla, J.)

1. Heard Sri Satish Chandra Dubey,
learned counsel for the appellant and Sri
Jitendra Kumar, learned A.G.A. for the
State-opposite party.

2. The present appeal under Section
374 (2) Cr.P.C. has been preferred by the
78 INDIAN LAW REPORTS ALLAHABAD SERIES
sole appellant Ram Kishore assailing the
judgment and order of conviction and
sentence dated 07.01.1982 passed by the
learned Trial Court in Sessions Trial No.
252 of 1980 (State vs. Ram Kishore and
Others) arising out of Case Crime No. nil
of 1979, under Sections 307, 394 IPC, P.S.
Baberu, District- Banda whereby the
appellant has been convicted for the
offences under Sections 302 and 394 of the
IPC and sentenced which is as follows:

1. To undergo life imprisonment
under Section 302 IPC.

2.
To
undergo
rigorous
imprisonment for seven years for the
offences under Section 394 IPC.

3. All the punishments shall run
concurrently.

3. The trial had proceeded against all
the three accused under Section 302 read
with Section 34 IPC, 307 read with Section
34 IPC and Section 394 IPC.

4. Out of the total three accused, only
Ram Kishore has been convicted and the
rest two accused Iqbal Bahadur and Ram
Gopal were acquitted at the stage of 232
Cr.P.C. The acquittal orders have not been
subjected to challenge.

5. Brief facts of the prosecution case
are that:

Ramanand lodged an FIR on
18.07.1979 at 06:15 p.m. at Police Station-
Baberu, District- Banda, under Sections 307
and 394 IPC against three accused persons,
namely, Ram Kishore, Ram Gopal and Iqbal
Bahadur stating that on the date of the
incident at around 07:00 a.m., he proceeded
for his Sasural at Village Amwa, Police
Station- Biseda, District- Banda on his
bicycle carrying his gun bearing Licence No.
1581 along with 32 cartridges. He reached at
Agausi Ghat at about 09:30 a.m., he met three
persons, namely, Ram Kishore, Raj Gopal
Bhujwa and Iqbal. All the four persons
together crossed the river by one boat. After
reaching Agausi, they could not get the Bus,
therefore, detained at Agausi. The other three
wanted to go to Village Patvan but as the Bus
did not come, they went to the place of
Pheran Bhujwa situated near Agausi Bus
Stand. There they took the meals and again
went to the Bus Stand at 06:00 p.m. They met
a person working in the Malaria Department,
who used to live at Village Nimor. In the
meantime, accused Ram Kishore took his gun
and cartridges. Ram Gopal sat at the bicycle
of the first informant while accused Iqbal
Bahadur Singh and Ram Kishore sat at the
bicycle of the person said to have serving in
Malaria Department. When they covered the
distance of about one kilometer towards Kazi
Tola, near the culvert, on the road side, Ram
Kisore fired the gun at Ramanand. The first
informant sprang towards the Mahua tree in
the field. All the three chased him, then Ram
Kishore again fired at him. Hearing the noise,
Pheran Bhujwa, Devi Dayal Master and
number of other persons reached there. All
the three accused persons fled away from the
spot with his gun and cartridges. The persons
who reached there, took him to Baberu to
some distance by Tonga and the rest by a
Bus.

6. After reaching the hospital at
Baberu, Dr. P.C. Chandel examined the
injuries of Ramanand in the intervening
night of 18.07.1979 and 19.07.1979 at
12:05 a.m. at Sadar Hospital, Banda. The
injuries found by Doctor on the body of
Ramanand are as under:

"1. Lacerated wound 13 cm x 2.5
cm x muscle deep on Rt side of face (on
cheek) & extending to Back below ear
8 All. Ram Kishore Vs. State of U.P.
79
lobule & up to back of neck. Margins
lacerated. Skin lost and muscle torn.
Blackening and tatooing present on Rt
cheek. Adv x-Ray wound is gutter shaped
and direction from front to back & slightly
downwards.

2. Abrasion 2.5 cm x 0.5 cm on
lateral part of external ear including ear
lobule.

3. Multiple Abrasions in an area
7 cm x 1.5 cm on upper margin of wound of
Injury no. 1 behind the ear lobule.

4. Lacerated wound 9 cm x 7 cm
x muscle deep on upper most part of back
of Rt. side chest 2 cm below the margin of
Injury No. (1) and 4 cm lateral to
Achromion process of Rt scapula. Skin lost
& tissues are lacerated & muscle torn. Adv
x-Ray.

5. Multiple gun shot wounds of
entry four in number in an area of 5 cm x
1.5 cm on lateral aspect of left side
Abdomen each measuring 0.5 cm x 0.5 cm
x cavity deep 2 cm above Iliac chrest and
16 cm away from umblicus at 3 o' clock
position. Margins inverted with Abraded
collar. No blackening or tatooing or
charring present. Adv. x-Ray abdomen.
Direction from left to right inward,
medially and slightly downwards.

6. Abrasion 7 cm x 1 cm obliquely
placed 3 cm above Injury No. 5.

7. Lacerated wound (G.S.W. of
exit) 0.6 cm x 0.6 cm x cavity deep on Rt
side front of abdomen. 3 cm away from
umblicus at slightly lower level to Injury
No. (5) margin everted & lateral to it
foreign body (Hard) is palpable.

Opinion: Injury No. 1, 4 & 5 kept
U.O. Adv. x-Ray face with Neck, x-Ray
upper chest & x-Ray Abdomen. Rest are
simple.

Duration- Fresh

Caused by Abrasion by friction &
rest by firearm."

7. While treatment, Ramanand was
identified and brought by C.P. Sujan Singh
No. 196, P.S.-Baberu, Banda. During
treatment, the condition of the first
informant became critical. The Doctor
called the Tehsildar, Banda for recording
the
dying
declaration.
This
dying
declaration was recorded on 19.07.1979 at
1:20 a.m. by Sri Shiv Murti Singh
Tehsildar/ Magistrate, Banda. The contents
of the dying declaration as recorded by
Tehsildar, Banda is quoted below:

"बयान किया कि मुझे रामकिशोर बाप िा नाम
मुझे नहीं पता है जो औगासी में रहता है जो कि थाना मरिा में
है ने मेरी बन्दूि लेिर औगासी से आगे लगभग एि
किलोमीटर पुकलया िे आगे मुझ पर फायर िर कदया। पहला
फायर मुझे पेट पर लगा कफर मैं भागिर महुआ िे बाग िी
ओर गया कफर वहीं पहँच िर रामकिशोर ने ही कफर फायर
किया। मैं बचने िे कलए झुिा तो मेरे चेहरे और गददन पर फायर
से चोट आयी। राम किशोर िे साथ राजगोपाल गुप्ता कनवासी
देवलान थाना गाजीपुर तथा इिबाल कनवासी देवलान थाना-
गाजीपुर थे। इनिे बाप िा नाम मुझे नहीं मालूम है। ये लोग
मुझे घाट पर कमले थे तथा मेरे साथ ही इन्होंने सुरी नाव से
औगासी घाट पार किया उसिे बाद भुजवा िे पास सबने
खाना बनवािर खाया खाना भुजवा ने बनाया था नाम मुझे
यादनहीं आ रहा है। हम सब लोग साइकिल पर थे बन्दूि राम
किशोर ने औगासी में ले ली थी कफर पुकलया िे आगे
रामकिशोर ने मेरे ऊपर फायर िर कदया । मैंने हाथ पाांव जोडे
िहा कि मुझे न मारो कफर भी मार कदया और पकिम िी ओर
भाग गये। मैं कगर पडा कफर िुछ देर बाद गाांव िे लोग आये
और मुझे बबेरू अस्पताल ले गये। बबेरु से मुझे यहाां लाया
गया। बयान सुनिर तस्दीि किया।"

8. Before recording the dying
declaration, the Medical Officer of the
Sadar Hospital, Banda gave a certificate
that Ramanand was fully conscious at the
time of recording of the dying declaration
and remained conscious throughout the
recording
of
dying
declaration. This
document was exhibited as Exhibit Ka-18.
80 INDIAN LAW REPORTS ALLAHABAD SERIES
The first informant took his last breath on
19.07.1979 at 11:30 a.m. The post-mortem
of Ramanand was conducted on 20.07.1979
and the following ante mortem injuries
were found on the body of the deceased:

"1.
Gutter
shaped
gun-shot
wound of Entry-15 cms x 3 cms x muscle
deep over Right side of cheek & lateral
aspect of Right side of neck. 7.5 cms from
left angle of Rt. Eye & 7.5 cms from Rt
angle of mouth. Tatooing and charring
present
around
the
wound,
margins
inverted
and
lacerated.
Direction-
Backward downwards & medially.

2. Gutter shaped gun-shot wound
of entry- 9 cms x 4 cms x muscle deep over
superior aspect of right shoulder 3 cms
back to Achromian process of Rt scapula.

Injuries No. (1) and (2) are
produced one shot they are superimposed
to each other.

3. Abrasion- 3 cms x 1 cms over
lateral aspect left chest. 17 cms below the
left nipple and 17 cms form umblicus.

4. 4 gunshot wound of entry- in
an area of 5 cms x 2 cms. Over lateral
aspect of left side of abdomen. 0.5 cm x
above the Left Iliac crest 14 cms from
umblicus. No tatooing or charring part
margin inverted, Direction- medially &
forward.

5. Gun shot of wound of exit- 0.6
cm x 0.6 cm over Ant. aspect of Rt side of
abdomen. 3 cms for umblicus at 9 o' closed
position. Margins everted."

9. The cause and manner of death was
due to shock and haemorrhage. During the
course
of
investigation,
incriminating
material was collected and the charge sheet
was filed, cognizance was taken and the
charges were framed under Section 302/34
IPC, 307/34 IPC and Section 394 IPC
against all the three accused persons.

10. Prosecution Witnesses: During
the
trial,
prosecution
examined
12
witnesses as under:

P.Ws.
Names of Prosecution
Witnesses
Status
PW-1
Sri Rampal
Scribe of the
First
Information
Report
PW-2
Sri Pheran
Cooked
food
for
the
deceased
and
accused
PW-3
Sri Devi Dayal Singh
Accompanied
with Ramanand
on Bus to admit
him
in
the
hospital
PW-4
Sri Mitan Ram SubInspector
Proved
the
inquest
report
prepared
by
him at Sadar
Hospital,
Banda.
PW-5
Sri Naipal Singh, S.O.
Marka
First
Investigating
Officer
who
partly
investigated the
crime
PW-6
Dr. Vikash Chandra
Conducted the
post-mortem
examination of
the dead body
of
the
deceased.
PW-7
Sri
P.C.
Chandel
Medical Officer, Sadar
Hospital, Banda
Admitted
the
injured,
examined
his
injuries and in
whose presence
dying
declaration
of
the
deceased
was recorded
PW-8
Sri Shiv Murti Singh,
Tehsildar/Magistrate II
Class, Banda.
Recorded
the
dying
declaration
of
the deceased.
PW-9
Sri Ram Bahadur Singh,
Constable, P.S. Baberu,
Banda
proved
Chik
FIR which was
sent
to
P.S.
Marka, Banda
8 All. Ram Kishore Vs. State of U.P.
81
PW-10
Sri Kaptan Singh Head
Constable, P.S. Marka
Head Muharir
of PS Marka.
Proved the GD
Entry.
PW-11
Sri
Devi
Dayal
Prajapati, S.I., Marka
Second
investigating
Officer
who
submitted
the
Charge Sheet
PW-12
Sri Sukuru Lal Varma,
House Visitor
Working
in
Malaria
Department/inj
ured
Eye
witness

11. Documents exhibited and
proved:

Documents
Exhibits
First Information Report
Ex.Ka-19
Dying Declaration of Ramanand
Ex.Ka-18
Tehrir/Report
Ex.Ka-1
Injury report
Ex.Ka-15
Post-mortem examination report of
Ramanand
Ex.Ka-13
X-Ray Report of Ramanand
Ex.Ka-17
Statement of Pheran Bhujwa
Ex.Ka-2
Statement of Devi Dayal Master
Ex.Ka-3
Statement of Ramanand under Section
161 Cr.P.C.
Ex.Ka-11
Site Plan
Ex.Ka-12
Application of Sukru Lal PW-12 given
to PS Baberu
Ex.Ka.22

12. Now, we proceed to examine the
prosecution witnesses and the records
exhibited :

PW-1
Sri
Rampal
in
his
testimony deposed that the deceased
Ramanand reached Baberu crossing along
with Pheran and Devi Dayal on a Bus,
Pheran called him for medical treatment of
the deceased Ramanand. PW-1 along with
the deceased Ramanand and others went to
the hospital but as he asked to first get the
F.I.R. registered, so on that very spot,
Ramanand dictated the contents and PW-1
noted down the application and went to the
Police Station, on the basis of which FIR
was registered. PW-1, who is a scribe of
FIR, has proved the application as Exhibit
Ka-1. He further deposed that the deceased
Ramanand was at the hospital himself for
the treatment and PW-1 alone came to the
Police Station, Baberu for lodging the FIR
and a Constable was sent to the hospital for
identifying injured.

PW-2 Pheran deposed that his
place lies at Bus-stop, Agausi. He runs an
Ikka also. About two years and one month
back, Ram Kishore and three others came
to his place who were hungry. All four had
the meals and went away. Amongst them,
one was carrying gun and cartridge. After
the meal, all four at around 6:00 to 6:30
p.m. went away. When PW-2 went on his
Tonga for about one and a half miles, he
saw an injured person lying on the road and
could recognise that he is the one who
accompanied Ram Kishore and had meals
at his place. PW-2 carried the injured on his
Tonga and went towards Baberu. Devi
Dayal
and
4-5
other
people
also
accompanied him. On the way, they saw a
Bus passing-by, the injured sat on the Bus,
even PW-2 and Devi Dayal came along
with the injured to Baberu Chauraha where
they met PW-1 Rampal of Village-Agausi.
The injured was admitted in the hospital for
the treatment where he narrated the
incident which was scribed by Rampal
(PW-1). Rampal took that report to the
Police Station, Baberu from where a homeguard
reached
to
the
hospital. The
Constable, PW-2 and a person from Patvan
took the injured for medical examination at
12:00 mid night to Sadar Hospital, Banda.
In
his
cross-examination,
PW-2
had
deposed that he knew Ram Kishore, who
82 INDIAN LAW REPORTS ALLAHABAD SERIES
along with Ram Gopal and Iqbal Bahadur
came on his place for the meals.

PW-3 Devi Dayal Singh deposed
that about two years back, while he was
present at the Baberu Chauraha at about
09:00 p.m., where Rampal PW-1 was also
present, a Bus came carrying 15-25
passengers, a person came and informed
that there is an injured man, who needs to
be admitted in the hospital. He went to the
Hospital for the treatment and again
accompanied Rampal to the Police Station.
In his cross-examination, he denied the
suggestion that he was present at Agausi or
he was present at the place of the incident
nor he saw Ram Kishore firing at the
deceased or running away with the gun and
cartridge. He also deposed that the distance
of the hospital from the Bus Stand was
about 70-80 steps away. He saw the injured
whining with pain and seeking medical aid.

PW-4 Sub Inspector Mitan
Ram prepared the Inquest Report and
collected the Post-Mortem Report. In his
cross-examination, he deposed that the
injured Ramanand died on 19.07.1979 at
11:30 p.m. at District- Sadar Hospital,
Banda.

PW-5
S.O.
Naipal
Singh
deposed that on the date of incident he was
posted as SHO Police Station, Marka. On
that same day, he received relevant
documents i.e. FIR, General Diary with
regard to registration of the crime from PSBaberu. As per this GD, the FIR was
registered at Police Station-Baberu, which
is the part of the GD at P.S.-Marka. At
Parcha No. 11, the said witness proved the
original GD. On 19.08.1979 itself, the
offence under Sections 307 and 394 IPC
was converted into offence under Sections
302 and 394 IPC, which is also the part of
the Case Diary and proved the Exhibit Ka10. PW-5 took over the investigation on the
same date and recorded the statements of
the
Head
Constable
Kaptan
Singh,
Constable Hari Shankar Tiwari and the
statement of the injured Ramanand at Sadar
Hospital, Banda under Section 161 Cr.P.C.
On the same date, he recorded the
statement of Pheran, Shree Pal, who made
the spot inspection, prepared the site plan
(Exhibit ka-12). He also deposed that
Ramanand was in a fit condition, who
could speak while recording the statement.
He did not make any effort to get his
statement recorded by the Magistrate as he
could not infer that he may die. Neither he
ask the Doctor whether he may die, nor did
he enquire Doctor about his health
condition. In his cross-examination, he
categorically denied that Ramanand was
not in a position to speak.

PW-6
Dr. Vikash
Chandra
proved the post-mortem Report of the
deceased Ramanand and found following
ante mortem injuries on the body of the
deceased which are as under:

"मेरी राय में इस मृति िी मौत सदमें तथा उपरोक्त
चोटों से उत्पन्न रक्तस्राव िे िारण हुई थी।

वरवक्त मुआयना मैंने पोस्ठ माटदम िी इक्जमीनेशन
ररपोटद प्रदशद ि-१३ जो मेंरे लेख व हस्ताक्षर में तैयार किया था।

मेटैकलि 9 शाट्स व वेड्स िागज़ िे पैिेट में सील
मोहर दुरूस्त आए कसपाही िो साथ एस.पी. िे यहाां भेज कदया था।

अिेजन चोट नां- 3 कगरने से आ सिती है।

मेरी राय में चोट नां- 1 व दो एि ही शाट से आई
थी। चोट नां- 1 व चोट नां-2 खडे आदमी पर तब आयेगी जब मरने
वाला चोटैल से ऊांचे 9 स्थान पर हो। यह चोट लेटे हुये आदमी पर
मारने से आ सिती है। यकद दो साइकिलों पर हो और मारने वाला
पीछे िी साइकिल से बन्दूि चलाये तो आगे वाले पर नां-1 व नां-2
चोटे आ सिती है। यकद गददन िो बेस मानिर नाि पर मेनकडिुलर
मान िर िोड बनाये तो 45 या 60 कडगरी िा िोड बनेगा। मारने
वाले िी कस्थत ऊांची हर हालत में होनी चाकहए। यह चोट तो पीछे से
आ ही नहीं सिती। चोट नां-4 भी पीछे से नहीं आ सिती।

यकद सडिे िे किनारे पडे हो और उसी सडि से
आदमी साइकिल से जा रहा हो तो साइकिल वाले आदमी िो पेड
से ऊपर से फायर िरने पर चोट नां-1 व 2 आ सिती है।
8 All. Ram Kishore Vs. State of U.P.
83

इतनी चोटों िे बाद भी आदमी बोलने िी कस्थकत में
रह सिता है। चोट नां-4 ऐसे थी कजसिे िारण ज्यादा ददद रहा
होगा।"

PW-7 Dr. P.C. Chandel deposed
that he was posted as Medical Officer,
Sadar Hospital, Banda and was on
emergency duty. On the intervening night
of 18/19.07.1979 at 12:05 a.m., he
examined the injuries of Ramanand who
was brought and identified by Constable
Sujan Singh, C.P. 196 and was initially
treated and referred by Dr. Khan of Primary
Health Center, Baberu. He also proved the
ticket brought by Dr. Khan as Exhibit Ka14. After the medico-legal examination, the
Doctor found injuries on the body of
Ramanand.

The Doctor opined that Injury
Nos. 1, 4 and 5 were kept under
observation, rest other injuries were simple.
All the injuries were fresh and must have
been caused at around 6:00 hours. The
abrasion must have been caused due to
friction. Rest other injuries were caused
due to fire-arm. These injuries could have
caused on 18.07.1979 at about 06:00 p.m.
He entered the injury in the Injury Register
and obtained the signatures of Ramanand
and proved it as Exhibit Ka-15. He himself
admitted Ramanand in the hospital and
proved his bed head ticket as Exhibit Ka15, which was prepared in his own
handwriting. Thereafter, the patient was
attended by Dr. D.S. Rana. On 19.07.1979
at 11:20-11:30 a.m., Dr. S.K. Gupta
attended the patient proved as Exhibit Ka16. The names of Dr. D.S. Rana and Dr.
S.K. Gupta were mentioned. The patient
died
at
Sadar
Hospital,
Banda
on
19.07.1979 at 11:30 a.m. At the time of
admission, the condition of the patient was
not good. His blood pressure was low
(80/50), but the patient was conscious.
During his treatment, the said witness made
an effort to get his dying declaration
recorded as a result of which on 19.07.1979
at 1:20 a.m., the dying declaration of
Ramanand was recorded by Tehsildar,
Banda, whose entry is mentioned on the
Bed Head Ticket. He witnessed recording
of dying declaration and certified the ticket
on 19.07.1979 at 1:15 a.m. with a noting
that the patient was in a condition to speak.

PW-8 Shiv Murti Singh deposed
that he was posted as Tehsildar-cumMagistrate-II Class at District-Banda. On
that same day, he received an information
from Sadar Hospital, Banda to get the
dying declaration recorded of an injured.
He reached the emergency ward of Sadar
Hospital, Banda, where the injured was
under treatment of Dr. Chandel. The injured
was in a condition to speak. The Doctor
gave his opinion that the injured was in a
condition to speak. Whatever was narrated,
he noted it down. After recording the
statement, his thumb impression, was
obtained on it except the Doctor no other
person was present at the time while
recording the statement. The said statement
was proved as Exhibit Ka-18 which has
been prepared in his own hand-writing and
bears the information of the Dr. Sri P. C.
Chandel about his health condition. He had
put his initials of the said dying declaration
as was recorded on 19.07.1979 at 1:20 a.m.
in mid night.

PW-9 Ram Bahadur Singh
Constable C.P. 561 deposed that on
18.07.1979, he was posted at P.S. Baberu,
District-Banda as Constable on that day at
09:30 p.m., Ram Pal of Village Agausi
came with the Tehrir Report (Exhibit Ka1). On the basis of which an FIR (Exhibit
Ka-19) was registered. The said witness
proved the Chik FIR (Exhibit Ka-19). The
necessary information was entered into the
General Diary which was brought and
proved in the original. This information
was at once passed to Police Station-Marka
84 INDIAN LAW REPORTS ALLAHABAD SERIES
on the RT Set at that very moment. At the
time of lodging of the FIR, the first
informant Ramanand was in the hospital.
He sent Constable Sujan Singh and Home
guard Ram Sahay to the hospital along with
the letter so that the Doctor may treat the
injured accordingly. On the very next day,
all the relevant documents relating to the
case, were sent to the P.S.-Marka. The said
witness in his cross-examination stated that
he was not aware whether any dying
declaration are recorded or not? At that
time, S.O. Rajpal Singh was present.
Rampal, who brought the Tehrir Report,
stated that the condition of the injured was
not good.

PW-10 Kaptan Singh deposed
that on 19.07.1979, he was posted as Head
Muharir, P.S.- Marka, District- Banda and
on the same date, he entered the Chik FIR
(Exhibit Ka-19), which was registered at
Police Station Baberu on 18.07.1979 in his
General Diary as Report No. 31, and same
was received on 19.07.1979 at 12:15 p.m.
This original diary was proved as Exhibit
Ka-9. This case was registered in the
presence of S.O. Naipal Singh, who took
over the investigation. In his crossexamination, the said witness deposed that
in case, any information would have been
received on RT Set, the same would have
been registered in the RT Set Register.

PW-11 Devi Dayal Prajapati, is
the second Investigating Officer and was
posted as S.H.O., P.S.- Marka, District-
Banda. He deposed that initially the
investigation was entrusted to the then S.O.
Naipal Singh, after his transfer, he took
over the investigation on 22.10.1979 and
recorded the statement of the accused and
other witnesses and filed the charge-sheet
and proved it as Exhibit Ka-21. In his
cross-examination, he deposed that he
forgot to record the statement of the person
working in the Malaria Department. He did
not even try to find out the licence of the
gun. He even did not find the application
given by Sukuru Lal Verma.

PW-12 Sukuru Lal Verma was
examined as an injured witness and
deposed that on 18.07.1979 i.e. on the date
of the occurrence, he was posted in Agausi
area as a house visitor. He used to collect
blood from individuals for examination and
analysis and also used to distribute Malaria
tablets. He stated that he had gone to
Agausi on 18.07.1979 in connection with
discharge of his duties. He stated that he
kept his bicycle at the place of Bhujwa who
lives near Agausi Bus Stand. He returned
from Agausi at about 6:00 to 6:30 pm. He
collected his bicycle from the place of said
Bhujwa and when he had gone only a
distance of 10 steps, he met three persons.
He did not know them from before, he
stated that one of them had bicycle and one
of them had a gun and third was empty
handed. His residential house was situated
in Nimore, a place near Kazi Tola. He was
going to Nimore. They requested him to
accompany them upto Kazi Tola and gave
one of them to sit on his bicycle. One of
them started driving his bicycle and the rest
two rode the other bicycle. The said rest
two persons followed his bicycle. When
they covered a distance of about 11⁄4 or 11⁄2
kms., one of the said two persons, who
were on bicycle behind him, fired a gun,
which hit him at his left thumb. The other
person who was driving his bicycle left his
bicycle and ran towards west of the road.
While he was running towards Agausi, he
heard
another
voice
of
gun.
He
accompanied two persons from Agausi and
again went back to the place of occurrence.
He did not find any person there. He with
the help of those two persons whom he had
accompanied from Agausi, rode his bicycle
and went away to his residential place. On
19.07.1979, he went to Baberu Hospital
8 All. Ram Kishore Vs. State of U.P.
85
and along with the Doctor he went to the
Police
Station
and handed over
an
application marked as Exhibit Ka-22. He
stated that these accused persons are not the
one who were with him and the deceased at
the time of the occurrence. He refused to
recollect
names
of
persons
who
accompanied with him to the place of
occurrence and also the name of Bhujwa.

13. Statement of the accused
recorded under Section 313 Cr.P.C.:

After
the
closure
of
the
prosecution evidence further statements of
the accused under Section 313 Cr.P.C. were
recorded.
The
accused
pleaded
the
innocence and stated that they have been
falsely
implicated
in
this
case.
Accused/appellant Ram Kishore stated that
he had heard that such an occurrence had
taken place. On hearing about this
occurrence, he also went to Bus Stand but
heard that some persons had taken the
injured to Baberu Hospital. He further
stated that one Ram Das is inimical to him
and he got him falsely implicated in this
case.

14. Per contra, learned A.G.A. Sri
Jitendra Kumar vehemently opposed the
argument raised by the counsel for the
appellant and argued that judgment passed
by the Trial Court does not contain any
infirmities and it is based on evidence and
testimony of the prosecution witnesses.
Trial Court has rightly convicted the
appellant after considering and evaluating
the facts and law. There is dying
declaration against the appellant regarding
his involvement in the crime. Learned
A.G.A. has supported the judgment,
conviction and the sentence.

15. Findings and Analysis:

After the meticulous examination
of the evidence on record, it can be safely
concluded that both sides agreed that
Ramanand was murdered. Accused persons
have
not
challenged
the
place
of
occurrence. There was no dispute between
the parties about the time or place of the
occurrence and in his dying declaration,
injured/informant stated that he was fired
near a Puliya (Culvert) about one kilometer
away from Agausi. Accused persons have
not challenged this place and have admitted
that an occurrence, as he had heard, did
happen, at the said place. There is an eye
witness account of the incident. Pheran
Bhujwa examined as P.W.-2 and few others
of the Village found the deceased in an
injured condition at the said place. All these
evidence taken together clearly establish
the place of occurrence on the road side on
Agausi, Baberu Road at a distance of one
kilometer from Agausi. Sukuru Lal Verma
PW-12,
injured/eye
witness
who
accompanied the deceased at the time of
the
occurrence,
has
supported
the
prosecution so far the fact as to when
where and how the occurrence took place
but he refused to identify the accused
persons. Rest of the persons, who were
seen with the deceased instead of being
cited as witnesses, have been arraigned as
accused. There was no other person present
at the time of occurrence. Under these
circumstances, the only direct evidence
against the accused appellant available if at
all, is the dying declaration of Ramanand
which can be made a basis of conviction.
Dr. P.C. Chandel examined the injuries of
the deceased in the intervening night of
18/19.07.1979 at Sadar Hospital, Banda.
He found three abrasions and gun shot
wounds at four places, two of entry and two
of exit. Dr. Vikas Chandra, who conducted
the post-mortem examination on the dead
body of deceased found these gun shot
86 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries at the time of the post-mortem
examination. According to him, death of
the deceased was caused due to the shock
and haemorrhage. These injuries in the
ordinary course were sufficient to cause the
death
of
any
man.
Under
these
circumstances, it can be safely concluded
that deceased Ramanand was murdered.

16. It has further been noticed that the
FIR was dictated by Ramanand. His
statement under Section 161 Cr.P.C. was
recorded by the Investigating Officer and a
dying declaration was also recorded by the
Magistrate. Exhibit Ka-18 is a dying
declaration of the deceased Ramanand
which was recorded by P.W.-8 Shiv Murti
Singh Tehsildar, Banda on 19.07.1979 in
the
hospital
premises.
It
bears
the
certificate of the Doctor that Ramanand, the
injured, was fully conscious at the time of
recording his statement and remained
conscious throughout the process of the
said recording. There was no chance of any
tutoring at all. Thus, the deceased was in a
fit state of mind to make the statement, he
clearly
identified
the
assailant
and
voluntarily made a true statement without
any foreign influence or rancour. The said
statement is also corroborated by medical
evidence and the statements of P.W.-2 and
P.W.-12. The deceased had no enmity with
any of the accused, therefore, it cannot be
expected to have mention any wrong facts
against any of the accused persons. The
deceased stated that it was only accused
Ram Kishore who attacked him and in spite
of his request did not spare, and gave
another fire shot. He has also stated the
manner in which the injuries were received.
He stated that at the first shot, he fell upon
when he was on a bicycle and in the second
impact he again fell upon when he was in a
crouching
position.
After
carefully
considering the injury report, post-mortem
report, seat of the injuries and the opinion
of the Doctor, it can be concluded that
Ramanand received two gun shot injuries at
two places, one could have been caused in
straight line while he was sitting on the
bicycle and other could be caused in a
crouching position. The fact that accused
Ram Kishore fired two shots at the injured
and ran away with the gun and 32
cartridges, has also been proved. His
statement well corroborates with the
medical evidence establishing the guilt of
the accused appellant.

17. Case Laws cited and relied:

The law on the subject of dying
declaration has been clearly and explicitly
enunciated by the Apex Court.

1. In Khushal Rao vs. State of
Bombay 1958 SCR 552: AIR 1958 SC 22:
1958 Cri LJ 106 which held as under:

"On a review of the relevant
provisions of the Evidence Act and of the
decided cases in the different High Courts
in India and in this Court, we have come to
the conclusion, in agreement with the
opinion of the Full Bench of the Madras
High Court, aforesaid, (1) that it cannot be
laid down as an absolute rule of law that a
dying declaration cannot form the sole
basis
of
conviction
unless
it
is
corroborated; (2) that each case must be
determined on its own facts keeping in view
the circumstances in which the dying
declaration was made; (3) that it cannot be
laid down as a general proposition that a
dying declaration is a weaker kind of
evidence than other pieces of evidence; (4)
that a dying declaration stands on the same
footing as another piece of evidence and
has to be judged in the light of surrounding
circumstances and with reference to the
principles governing the weighing of
evidence; (5) that a dying declaration
8 All. Ram Kishore Vs. State of U.P.
87
which has been recorded by a competent
Magistrate in the proper manner, that is to
say, in the form of questions and answers,
and, as far as practicable, in the words of
the maker of the declaration, stands on a
much
higher
footing
than
a
dying
declaration which depends upon oral
testimony which may suffer from all the
infirmities of human memory and human
character, and (6) that in order to test the
reliability of a dying declaration, the Court
has to keep in view, the circumstances like
the opportunity of the dying man for
observation, for example, whether there
was sufficient light if the crime was
committed at night; whether the capacity of
the man to remember the facts stated, had
not been impaired at the time he was
making the statement, by circumstances
beyond his control; that the statement has
been consistent throughout if he had
several opportunities of making a dying
declaration apart from the official record of
it; and that the statement had been made at
the earliest opportunity and was not the
result of tutoring by interested parties.

Hence, in order to pass the test of
reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has been
made in the absence of the accused who
had no opportunity of testing the veracity of
the statement by cross-examination."

2.
In
Laxman
vs.
State
of
Maharashtra (2002) 6 SCC 710, it has
been held that:

"The situation in which a man is
on the deathbed is very solemn and serene,
is the reason in law to accept the veracity
of his statement. It is for this reason that
the requirements of oath and crossexamination are dispensed with. 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.
The court, however, has always to be on
guard to see that the statement of the
deceased was not as a result of either
tutoring or prompting or a product of
imagination. The court also must further
decide that the deceased was in a fit state
of mind and had the opportunity to observe
and identify the assailant. Normally,
therefore, the court in order to satisfy
whether the deceased was in a fit mental
condition to make the dying declaration
looks up to the medical opinion. But where
the eyewitnesses state that the deceased
was in a fit and conscious state to make the
declaration, the medical opinion will not
prevail, nor can it be said that since there is
no certification of the doctor as to the
fitness of the mind of the declarant, the
dying declaration is not acceptable. A
dying declaration can be oral or in writing
and
any
adequate
method
of
communication whether by words or by
signs or otherwise will suffice provided the
indication is positive and definite. There is
no requirement of law that a dying
declaration must necessarily be made to a
Magistrate and when such statement is
recorded by a Magistrate there is specified
statutory
form
for
such
recording.
Consequently, what evidential value or
weight has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case.
What is essentially required is that the
person who records a dying declaration
must be satisfied that the deceased was in a
fit state of mind. Where it is proved by the
testimony of the Magistrate that the
declarant was fit to make the statement
even without examination by the doctor the
declaration can be acted upon provided the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
court ultimately holds the same to be
voluntary and truthful. A certification by
the doctor is essentially a rule of caution
and therefore the voluntary and truthful
nature of the declaration can be established
otherwise."

3. In Poonam Bai vs. State of
Chhattisgarh (2019) 6 SCC 145, it has
been held that:

"A dying declaration can be the
sole basis for convicting the accused.
However, such a dying declaration should
be trustworthy, voluntary, blemishless and
reliable. In case the person recording dying
declaration is satisfied that declarant is in a
fit medical condition to make the statement
and
if
there
are
no
suspicious
circumstances, dying declaration may not
be invalid solely on the ground that it was
not certified by the doctor"

4. In Jayamma and Another vs.
State of Karnataka (2021) 6 SCC 213 it
has been held that:

"When a dying declaration has
been recorded in accordance with law, and
it gives a cogent and plausible explanation
of the occurrence, the court can rely upon it
as the solitary piece of evidence to convict
the accused. It is for such reason that
Section 32 of the Evidence Act, 1872 is an
exception to the general rule against the
admissibility of hearsay evidence and its
Clause (1) makes the statement of the
deceased
admissible.
Such
statement,
classified as a "dying declaration" is made
by a person as to the cause of his death or
as to the injuries which culminated to his
death or the circumstances under which
injuries were inflicted. A dying declaration
is thus admitted in evidence on the premise
that the anticipation of brewing death
breeds the same human feelings as that of a
conscientious and guiltless person under
oath. It is a statement comprising of last
words of a person before his death which
are presumed to be truthful, and not
infected by any motive or malice. The dying
declaration is therefore admissible in
evidence on the principle of necessity as
there is very little hope of survival of the
maker, and if found reliable, it can certainly
form the sole basis for conviction."

18. Section 32(1) of the Evidence Act,
1872 provides for the relevance of the
statement made by a person who is dead.
Section 32(1) of the Evidence Act, 1872 is
reproduced below:

"32. Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc., is relevant.-
Statements, written or verbal, of relevant
facts made by a person who is dead, or who
cannot be found, or who has become
incapable of giving evidence, or whose
attendance cannot be procured without an
amount of delay or expense which under
the circumstances of the case appears to
the Court unreasonable, are themselves
relevant facts in the following cases:-

(1) 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.