# Ranjeet @ Jamidar v. State of U.P

- **Citation:** (2019) 3 ILRA 891
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-07
- **Case number:** Criminal Appeal No. 286 of 2002
- **Bench:** Ved Prakash Vaish, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ranjeet-jamidar-v-state-of-u-p-44864
- **Pages:** 15

## Headnote

A. -Criminal Law-Indian Penal Code,1860
- Criminal appeal against conviction -
Section 302 & Section 324 of I.P.C.-
culpability of the appellant - Section 32 of
the Indian Evidence Act deals with the
cases in which statement of relevant facts
made by a person who is dead or cannot
be found etc., is relevant viz-a-viz Section
161 and 162 of Cr.P.C.- the statement
recorded by the police under Section 161
of
the
Cr.P.C.,
falling
within
the
provisions of clause (1) of Section 32 of
the Indian Evidence Act is clearly relevant
and admissible - held-the statement of
the person recorded under Section 161
can be treated as dying declaration after
death - dying declaration is admissible in
evidence by virtue of Section 32 of Indian
Evidence
Act-statement
of
victim/deceased recorded by Police under
Section 161 of Cr.P.C. immediately before
her death can be considered as dying
declaration - mere delay in sending copy
of F.I.R. do not entitle the appellant a
benefit of doubt - recovery of kulhadi
(axe) is not admissible under Section 27
of the Indian Evidence Act - onus to prove
the defence was upon the appellant
which she has failed to discharge despite
opportunity
being
granted.
(Para16,18,19,22,27,29,31,33)

Appeal dismissed .(E-7)

List of cases cited:-

## Text

_Characters 0–39,979 of 49,579. This is a partial read: ask again with offset=39979 for what follows._

3 All. Ranjeet @ Jamidar Vs. State of U.P.
891
from the realm of "may be true" to the
plane
of
"must
be
true"
as
is
indispensably
required
in
law
for
conviction on a criminal charge. It is trite
to state that in a criminal trial, suspicion,
howsoever
grave,
cannot
substitute
proof."

23. In the present case, needle of
suspicion definitely goes against the
accused persons, but it does not pin point
the appellant. As per diary statement of
PW-3 Gajram, it is Jamunia, who pressed
her by a quilt whereas in the court
statement of PW-3, he stated that it is the
appellant, who pressed the deceased.
Moreover, the statement of PW-3 Gajram
and PW-5 Babu Ram have already been
disbelieved by the trial court holding that
these are not trustworthy witnesses as
they were having inimical relations with
the accused persons. On the same set of
evidence, the trial court has acquitted
some of the accused, whereas has
convicted the appellant and deceased
accused Harkaran. The evidence adduced
by the prosecution is not clinching and
conclusive and therefore, we find it
difficult to uphold the judgment of the
trial court. The accused appellant is
entitled to get the benefit of doubt.

24. The appeal is, accordingly,
allowed. The judgment of Trial Court is
set aside. Appellant Chhatar Pal is on bail,
therefore, no further order is required
----------

(2019)11ILR A891

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.11.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 286 of 2002

Ranjeet @ Jamidar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.U. Pandey, Sri R.K. Dwivedi.

Counsel for the Respondent.
Govt. Advocate

A. -Criminal Law-Indian Penal Code,1860
- Criminal appeal against conviction -
Section 302 & Section 324 of I.P.C.-
culpability of the appellant - Section 32 of
the Indian Evidence Act deals with the
cases in which statement of relevant facts
made by a person who is dead or cannot
be found etc., is relevant viz-a-viz Section
161 and 162 of Cr.P.C.- the statement
recorded by the police under Section 161
of
the
Cr.P.C.,
falling
within
the
provisions of clause (1) of Section 32 of
the Indian Evidence Act is clearly relevant
and admissible - held-the statement of
the person recorded under Section 161
can be treated as dying declaration after
death - dying declaration is admissible in
evidence by virtue of Section 32 of Indian
Evidence
Act-statement
of
victim/deceased recorded by Police under
Section 161 of Cr.P.C. immediately before
her death can be considered as dying
declaration - mere delay in sending copy
of F.I.R. do not entitle the appellant a
benefit of doubt - recovery of kulhadi
(axe) is not admissible under Section 27
of the Indian Evidence Act - onus to prove
the defence was upon the appellant
which she has failed to discharge despite
opportunity
being
granted.
(Para16,18,19,22,27,29,31,33)

Appeal dismissed .(E-7)

List of cases cited:-

1. Marudanal Augusti Vs St. of Ker. (1980)
SCC (Cri) 985
892 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Ishwar Singh Vs The St. of U.P. AIR (1976)
SC 2423.

3. Mukeshbhai Gopalbhai Barot Vs St. of Guj.
AIR (2010) SC 3692

4. Sri Bhagwan Vs St. of U. P.(2013) 12 SCC
137

5. Nijjam Faraghi @ Nijjam Faruqui Vs St. of
W. B. (1998) 2 SCC 45

6. Khushal Rao Vs St. of Bom. (1958) SCR 552
7. Paparambaka Rosamma & ors. Vs St. of
A.P. (1999) 7 SCC 695

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

9. Laxmi Vs Om Prakash (2001) 6 SCC 118

10. Nallapati Sivaiah Vs S.D.O., Guntur, A.P.
(2007) 15 SCC 465

11. Pala Singh & anr. Vs State of Pun. (1972)
2 SCC 640

12. Sarwan Singh & ors. Vs St. of Pun. (1976)
4 SCC 369

(Delivered by Hon'ble Ved Prakash
Vaish, J.)

1. Heard Sri Rajesh Kumar
Dwivedi, learned amicus curiae for the
appellant and Sri Pankaj Kumar Tiwari,
learned Addl. G.A. for the State.

2. This appeal is directed against the
judgment
and
order
dated
22nd
December, 2001 passed by learned
Additional Sessions Judge/Special Judge,
Essential Commodities Act, Sultanpur, in
Sessions Trial No.353 of 1996 titled as
State vs. Ranjeet @ Jamidar, whereby the
appellant has been convicted for the
offence under Section 302 of the Indian
Penal Code (hereinafter referred to as
"I.P.C.")
and
sentenced
to
undergo
rigorous imprisonment for life and to pay
fine for a sum of Rs.5,000/-, in default of
payment of fine to further undergo
rigorous imprisonment for six months.
The appellant has also been convicted for
the offence under Section 324 of I.P.C.
and
sentenced
to
undergo
rigorous
imprisonment for three years and to pay
fine for a sum of Rs.5,000/-, in default of
payment of fine to further undergo
rigorous imprisonment for six months.

3. The facts as unfolded during trial
of the case are that the complainant, Ram
Bahadur Yadav S/o Dwarika Prasad
lodged a complaint on 15.05.1996, in
which, he stated that on the intervening
night of 14/15.05.1996 at about 11:00
PM, marriage procession (barat) had
come to his village, on hearing of yelling
of mother of Murali S/o Lal Bahadur, he
went towards her house and saw that the
appellant, Ranjeet @ Jamidar, who
belongs to his village was beating to his
bhabhi, Shivkali with kulhadi (axe) as a
result of which she received injuries on
her head and stomach, when he tried to
separate her, he was also attacked on head
by accused, when they cried then Murali,
Chhatai and other persons came there and
at that time Ranjeet @ Jamidar ran away
from the spot.

4. On the basis of the said
complaint, the First Information Report
(hereinafter referred to as "F.I.R.") No.28
of 1996 for the offence under Sections
324/307 of I.P.C. was recorded as Case
Crime No.95 of 1996 at Police Station
Munshiganj, District Sultanpur. The same
is recorded in general diary as report
No.2. During investigation, the injured,
namely, Shivkali and Ram Bahadur Yadav
were medically examined, statement of
injured, Smt. Shivkali was recorded. The
injured,
Smt.
Shivkali
died
on
3 All. Ranjeet @ Jamidar Vs. State of U.P.
893
15.05.1996, inquest paper was prepared,
postmortem got conducted by Dr. C.P.
Tiwari at District Hospital Sultanpur.
After completion of the investigation,
chargesheet
for
the
offence
under
Sections 302 and 324 of I.P.C. was filed
against the appellant. After complying
with the provisions of Section 207 of
I.P.C., the case was committed to learned
Sessions Judge, Sultanpur.

5. After hearing both the parties and
considering the record of the case, on
20th November, 1998, learned trial court
found sufficient ground to proceed against
the appellant, Ranjeet @ Jamidar for the
offence punishable under Sections 302
and 324 of I.P.C. The appellant abjured
his guilt and claimed trial.

6. In support of its case, the
prosecution examined as many as nine
witnesses. PW-1, Ram Bahadur Yadav is
the complainant, he has proved the
complaint as Ex. KA-1. PW-2, Chhotai is
an eyewitness, he deposed that marriage
procession (barat) had come to his house
about four years ago in the month of May,
marriage procession (barat) had come to
his house at about 11:00 PM, he heard
yelling of Smt. Shivkali widow of Lal
Bahadur, he reached at her door and saw
that Ranjeet was giving beating to
Shivkali with kulhadi (axe), when Ram
Bahadur Yadav was tired to separate them
then Ranjeet inflicted kulhadi (axe) on
him also, there was a light of lamp on the
door of Shivkali, Murali also reached
there, who saw the incident, Murali is the
elder son of Smt. Shivkali, he identified
accused/appellant, Ranjeet who inflicted
injuries on the head and stomach of
Shivkali and Ram Bahadur received two
injuries, Ram Bahadur and Ram Shankar
took Shivkali to Police Station and case
was registered and Shivkali was sent to
District Hospital where she died at about
9:00 AM. PW-3, Dr. A.P. Mishra from
District
Hospital,
Sultanpur,
who
medically examined the injured, namely,
Smt. Shivkali and Ram Bahadur Yadav,
he has proved the medical report of
Shivkali as Ex. KA-2 and medical report
of Ram Bahadur Yadav as Ex. KA-3, he
disclosed five injuries on the body of of
deceased Shivkali and two injuries on the
body of Ram Bahadur Yadav and the
injured Shivkali was in serious and
shocked position. PW-4, S.I. Ramvali
Pandey is the Investigating Officer, he has
deposed that on 15.05.1996, investigation
was handed over to him, he recorded
statement of injured, Smt. Shivkali W/o
Lal Bahadur, which is Ex. KA-4,
thereafter, he recorded statement of Ram
Bahadur Yadav and statement of Murali,
he inspected the spot and prepared the site
plan which is Ex. KA-5 and recorded the
statement
of
Vasudev
Yadav
and
Chhotelal who are the witnesses of
recovery, S.O. Ajeet Kumar Singh seized
bloodstained soil and plain soil vide
seizure memo as Ex. KA-6, which wears
his signature. PW-5, Dr. C.P. Tiwari, who
conducted autopsy on the body of the
deceased, Smt. Shivkali, he has deposed
that on 15.05.1996 at about 5:00 PM he
conducted autopsy on the body of
Shivkali W/o Lal Bahadur, he has proved
the postmortem report as Ex. KA-7, he
opined the cause of death due to coma
shock and hemorrhage as a result of antimorterm injuries and injuries No.3 and 4
were possible with kulhadi (axe). PW-6,
Ajeet Kumar Singh was working as S.O.
Munshiganj, on 15.05.1996, he has
deposed that Case Crime No.95 of 1996
under Sections 324/307 of I.P.C. was
registered in his presence and the
investigation was handed over to S.I.
894 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramvali Pandey, he along with Ramvali
Pandey reached the spot and bloodstained
soil, plain soil and kulhadi (axe) were
seized vide seizure memo as Ex. KA-6,
he has also deposed that on 16.05.1996
after the death of Smt. Shivkali, Section
302 of I.P.C. was added and the
investigation was taken over by him, he
recorded statements of Constable Dinesh
Chandra Mishra and Ashok Kumar Singh
and statement of Chhotai, he made efforts
to arrest the accused but he was not
traceable,
on
19.05.1996,
copy
of
panchnama and copy of postmortem
report were kept on the file, on
01.06.1996, statement of S.I. M.P. Singh
who prepared panchnama was recorded
and other proceedings were conducted on
12.06.1996 and the recovered article from
the spot were sent to FSL through Kailash
Nath
Katiyar
on
05.06.1996,
on
26.06.1996, remand of accused was
obtained and chargesheet was prepared
which is Ex. KA-8. He has also proved
kulhadi (axe) as Ex.-1, which was
recovered from the spot. PW-7, S.I.
Mahendra Pratap Singh has proved the
panchnama (inquest report) as Ex. KA-9
he has also deposed that he obtained R.I.
papers, photographs of the body, challan
vide seizure memo as Ex. KA-10 to Ex.
KA-14. PW-8 C.P. Ashok Kumar Singh
who recorded report No.12 at 9:15 Hrs on
16.05.1996 copy of which is Ex. KA-15.
PW-9 HC Salik Ram Pandey who
recorded the chick F.I.R., he has proved
copy of F.I.R. as Ex. KA-16, he recorded
Report No.2 at 2:30 PM on 15.05.1996 in
the rojnamacha copy of which is Ex. KA17.

7. After completion of prosecution
evidence,
Statement
of
the
appellant/accused under Section 313 of
the
Code
of
Criminal
Procedure
(hereinafter referred to as "Cr.P.C.") was
recorded. The appellant denied complicity
in
the
crime
and
pleaded
false
implication. He stated that on the night of
the incident, he was in the house of his
relative at Village Jalalpur and said that
before incident his bhabhi (Shivkali) has
complained that Ram Bahadur keeps bad
eyes at her due to that he had scolded
Ram Bahadur and further stated that Ex.-
1, kulhadi (axe) was of the Ram Bahadur.
Ram Bahadur had tried to rape his bhabhi.
He is falsely implicated because he had
opposed Ram Bahadur. The appellant
choose not to lead defence evidence.

8. After appreciating evidence and
considering the rival contentions of the
parties, learned trial court found the
appellant to be guilty having committed
the offence under Sections 302/324 of
I.P.C. and convicted the appellant for the
same and sentenced him vide impugned
judgment and order dated 22.12.2001.

9. Being aggrieved by the impugned
judgment and order dated 22.12.2001, the
appellant preferred the present criminal
appeal.

10. Learned amicus curiae for the
appellant contended that Smt. Shivkali
died after about 4-5 Hrs of the incident
but no dying declaration was recorded,
the statement of injured recorded under
Section 161 of Cr.P.C. cannot be treated
as a dying declaration. The deceased
Shivkali was not in a position to give any
statement.

11. Learned amicus curiae for the
appellant also urged that there is an
inordinate delay in lodging the F.I.R., the
incident occurred at about 11:00 PM on
14.05.1996,
the
complainant
Ram
3 All. Ranjeet @ Jamidar Vs. State of U.P.
895
Bahadur Yadav had received injuries and
was not in a position to lodge the
complaint and the F.I.R. was recorded on
15.05.1996 at 2:30 AM; the injured Smt.
Shivkali
died
in
District
Hospital,
Sultanpur on 15.05.1996 at 9:00 AM and
the case was converted to Section 302
read with Section 324 of I.P.C. on
16.05.1996; the copy of F.I.R. was not
forwarded to Ilaka Magistrate forthwith.
Learned amicus curiae for the appellant
also submitted that there is delay in
conducting the inquest report. Crime
number is not mentioned on the inquest
report which creates suspicion that the
F.I.R. was not in existence at the time of
inquest report. In this regard, reliance was
placed upon in the case of 'Marudanal
Augusti vs. State of Kerala', 1980 SCC
(Cri) 985 and 'Ishwar Singh vs. The
State of Uttar Pradesh', AIR 1976 SC
2423.

12. Learned amicus curiae for the
appellant further submitted that the
weapon of offence i.e., kulhadi (axe) was
not produced before the trial court and not
shown to autopsy surgeon to seek whether
the injuries to be caused by the said
weapon or not; learned amicus curiae for
the appellant also submitted that the
prosecution has not been examined
material witnesses, namely, Murali and
Chhatai (who were the eye witnesses of
the incident) and Chhotelal, Jokhuram
and Vasudev (who were the witnesses of
recovery), which creates suspicion in the
case
of
prosecution;
there
are
contradictions
in
the
testimony
of
prosecution
witnesses;
there
is
no
recovery of bloodstained clothes of the
appellant. In this regard, reliance was
placed upon in the case of 'Ishwar Singh
vs. The State of Uttar Pradesh', AIR
1976 SC 2423.

13. Learned Addl. G.A. refuting the
submission of learned amicus curiae for
the appellant and submitted that the trial
court has rightly analyzed the evidence on
record and committed no error; the
statement of injured Smt. Shivkali (who
later on died) was recorded by PW-4, S.I.
Ramvali Pandey on 15.05.1996 and the
same is admissible in evidence and
appellant/accused can be convicted on the
basis of said dying declaration.

14. We have given our anxious
thought to the submissions made by
learned amicus curiae for the appellant
and learned Addl. G.A. for the State and
have carefully perused the material on
record.

15. The main thrust of the
submissions of learned amicus curiae for
the appellant is that the statement of
injured cannot be treated as dying
declaration since death occurred at 9:00
AM on 15.05.1996 that is after about 10
Hrs. of the incident.

16. Before proceeding to examine
the culpability of the appellant before us,
in the conspectus of the facts, it would be
worthwhile to consider the relevant
provisions of Section 32 of the Indian
Evidence Act. Section 32 of the Indian
Evidence Act deals with the cases in
which statement of relevant facts made by
a person who is dead or cannot be found
etc., is relevant viz-a-viz Section 161 and
162 of Cr.P.C. Section 32 of the Indian
Evidence Act reads as under:

"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
896 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.

2................

3................

4................

5................"

17. Chapter XII of the Cr.P.C.
contains Sections 161 and 162 of the
Cr.P.C. Section 161 of the Cr.P.C. deals
with examination of witnesses by Police.
Section 162 of the Cr.P.C. deals with
"statements to Police not to be signed: use
of statements in evidence". Sections 161
and 162 of the Cr.P.C. read as under:-

"161.
Examination
of
witnesses by police.--(1) Any police
officer making an investigation under this
Chapter, or any police officer not below
such rank as the State Government may,
by general or special order, prescribe in
this behalf, acting on the requisition of
such officer, may examine orally any
person supposed to be acquainted with
the facts and circumstances of the case.

(2) Such person shall be bound
to answer truly all questions relating to
such case put to him by such officer, other
than questions the answers to which
would have a tendency to expose him to a
criminal charge or to a penalty or
forfeiture.

(3) The police officer may
reduce into writing any statement made to
him in the course of an examination
under this section; and if he does so, he
shall make a separate and true record of
the statement of each such person whose
statement he records:

[Provided that statement made
under this sub-section may also be
recorded
by
audio-video
electronic
means:]

[Provided
further
that
the
statement of a woman against whom an
offence under Section 354, Section 354-A,
Section 354-B, Section 354-C, Section
354-D, Section 376, [Section 376-A,
Section 376-AB, Section 376-B, Section
376-C, Section 376-D, Section 376-DA,
Section 376-DB], Section 376-E or
Section 509 of the Indian Penal Code (45
of 1860) is alleged to have been
committed or attempted shall be recorded,
by a woman police officer or any woman
officer.]

162. Statements to police not to
be
signed:
Use
of
statements
in
evidence.--(1) No statement made by any
person to a police officer in the course of
an investigation under this Chapter, shall,
if reduced to writing, be signed by the
person making it; nor shall any such
statement or any record thereof, whether
in a police diary or otherwise, or any part
of such statement or record, be used for
any
purpose,
save
as
hereinafter
provided, at any inquiry or trial in respect
of any offence under investigation at the
time when such statement was made:
3 All. Ranjeet @ Jamidar Vs. State of U.P.
897

Provided that when any witness
is called for the prosecution in such
inquiry or trial whose statement has been
reduced into writing as aforesaid, any
part of his statement, if duly proved, may
be used by the accused, and with the
permission
of
the
Court,
by
the
prosecution, to contradict such witness in
the manner provided by Section 145 of the
Indian Evidence Act, 1872 (1 of 1872);
and when any part of such statement is so
used, any part thereof may also be used in
the re-examination of such witness, but
for the purpose only of explaining any
matter
referred
to
in
his
crossexamination.

(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."

18. Thus, from a bare reading of
sub-Section(2) to Section 162 of Cr.P.C. it
is
clear
that
sub-Section(2)
is
an
exception to what has been laid down in
sub-Section (1). Therefore, the statement
recorded by the police under Section 161
of
the
Cr.P.C.,
falling
within
the
provisions of clause (1) of Section 32 of
the Indian Evidence Act is clearly
relevant and admissible.

19. In 'Mukeshbhai Gopalbhai
Barot vs. State of Gujarat', AIR 2010
SC 3692, the Hon'ble Supreme Court
considered the provisions of Sections 161
and 162 of the Cr.P.C. and Section 32 of
the Indian Evidence Act. In the said case,
the victim, who received burn injuries on
14.09.1993 was admitted to Ahmedabad
Civil
Hospital,
her
statement
was
recorded by the Executive Magistrate and
by the Police. The statement recorded by
the Police under Section 161 of the
Cr.P.C. was discarded by the High Court
taking the view that it had no evidentiary
value. The said view of the High Court
was not accepted by the Hon'ble Supreme
Court. It was held that the statement of
the person recorded under Section 161
can be treated as dying declaration after
death. The relevant paragraphs -4 and 5
read as under:-

"4. We have considered the
arguments advanced by the learned
counsel for the parties. At the very outset,
we must deal with the observations of the
High Court that the dying declarations
Exs.44 and 48 could not be taken as
evidence in view of the provisions of
Section 161 and 162 of the Cr.P.C. when
read cumulatively. These findings are,
however, erroneous. Sub-section (1) of
Section 32 of the Indian Evidence Act,
1872
deals
with
several
situations
including the relevance of a statement
made by a person who is dead. The
provision reads as under:

Sec.32.
Cases
in
which
statements 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
898 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.

We see that the aforesaid dying
declarations are relevant in view of the
above provision. Even otherwise, Section
161 and 162 of the Cr.P.C. admittedly
provide for a restrictive use of the
statements recorded during the course of
the investigation but sub-section (2) of
Section 162 deals with a situation where
the maker of the statement dies' and reads
as under:

"(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."

5. A bare perusal of the
aforesaid provision when read with
Section 32 of the Indian Evidence Act
would reveal that a statement of a person
recorded under Section 161 would be
treated as a dying declaration after his
death. The observation of the High Court
that the dying declarations Ex.44 and 48
had no evidentiary value, therefore, is
erroneous. In this view of the matter, the
first dying declaration made to the
Magistrate on 14th September 1993
would, in fact, be the First Information
Report in this case."

20. In another case of 'Sri Bhagwan
vs. State of Uttar pradesh', (2013) 12
SCC
137,
while
considering
the
provisions of Section 161 of the Cr.P.C.
and Section 32 of the Indian Evidence
Act, the Hon'ble Supreme Court observed
as under:-

"20. While keeping the above
prescription in mind, when we test the
submission of the learned counsel for the
appellant in the case on hand at the time
when Section 161 CrPC statement of the
deceased was recorded, the offence
registered was under Section 326 IPC
having regard to the grievous injuries
sustained by the victim. PW 4 was not
contemplating
to
record
the
dying
declaration of the victim inasmuch as the
victim
was
seriously
injured
and
immediately needed medical aid. Before
sending him to the hospital for proper
treatment PW 4 thought it fit to get the
version about the occurrence recorded
from the victim himself that had taken
place and that is how Exhibit Ka-2 came
to
be
recorded.
Undoubtedly,
the
statement was recorded as one under
Section
161
CrPC.
Subsequent
development resulted in the death of the
victim on the next day and the law
empowered the prosecution to rely on the
said statement by treating it as a dying
declaration,
the
question
for
consideration is whether the submission
put forth on behalf of the respondent
counsel merits acceptance.

21. Mr Ratnakar Dash, learned
Senior Counsel made a specific reference
to Section 162(2) CrPC in support of his
3 All. Ranjeet @ Jamidar Vs. State of U.P.
899
submission that the said section carves
out an exception and credence that can be
given to a Section 161 CrPC statement by
leaving it like a declaration under Section
32(1) of the Evidence Act under certain
exceptional circumstances. Section 162(2)
CrPC reads as under:

"162. (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."

22. Under Section 32(1) of the
Evidence Act it has been provided as
under:

"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.

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."

23. Going by Section 32(1) of
the Evidence Act, it is quite clear that
such statement would be relevant even if
the person who made the statement was
or was not at the time when he made it
was under the expectation of death.
Having regard to the extraordinary
credence attached to such statement
falling under Section 32(1) of the
Evidence Act, time and again this Court
has cautioned as to the extreme care and
caution to be taken while relying upon
such evidence recorded as a dying
declaration.

24. As far as the implication of
Section 162(2) CrPC is concerned, as a
proposition of law, unlike the excepted
circumstances under which Section 161
CrPC statement could be relied upon, as
rightly contended by the learned Senior
Counsel for the respondent, once the said
statement though recorded under Section
161 CrPC assumes the character of dying
declaration falling within the four corners
of Section 32(1) of the Evidence Act, then
whatever credence that would apply to a
declaration governed by Section 32(1)
should automatically deemed to apply in
all force to such a statement though was
once recorded under Section 161 CrPC.
The above statement of law would result
in a position that a purported recorded
statement under Section 161 of a victim
having regard to the subsequent event of
the death of the person making the
statement who was a victim would enable
the prosecuting authority to rely upon the
said statement having regard to the nature
and content of the said statement as one
of dying declaration as deeming it and
falling under Section 32(1) of Evidence
Act and thereby commend all the
credence that would be applicable to a
dying declaration recorded and claimed
as such."

21. In the case of 'Nijjam Faraghi
alias Nijjam Faruqui vs. State of West
900 INDIAN LAW REPORTS ALLAHABAD SERIES
Bengal', (1998) 2 SCC 45, the kerosene
oil was poured on the victim and she was
put on fire on 13.06.1985, she died on
31.07.1985. The Hon'ble Supreme Court
after referred to the provisions of Section
32 of the Indian Evidence Act held that
mere fact that the victim died long after
making the dying declaration, said
statement does not loose its value. The
relevant paragraph of the said judgment
reads as under:-

"9. There is no merit in the
contention that the appellant's wife died
long after making the dying declarations
and therefore those statements have no
value. The contention overlooks the
express provision in Section 32 of the
Evidence Act. The second paragraph of
sub-section (1) reads as follows:

"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."

No doubt it has been pointed
out that when a person is expecting his
death to take place shortly he would not
be indulging in falsehood. But that does
not mean that such a statement loses its
value if the person lives for a longer time
than expected. The question has to be
considered in each case on the facts and
circumstances established therein. If there
is nothing on record to show that the
statement could not have been true or if
the other evidence on record corroborates
the contents of the statements, the court
can certainly accept the same and act
upon it. In the present case both courts
have discussed the entire evidence on
record
and
found
that
two
dying
declarations contained in Exs. 5 and 6
are acceptable."

22. Law of dying declaration is, by
now, almost settled that dying declaration
is admissible in evidence by virtue of
Section 32 of Indian Evidence Act. In the
case of "Khushal Rao v. State of
Bombay", 1958 SCR 552 it is held that :-

"xxxxx This provision has been
made by the Legislature, advesedly, as a
matter of sheer necessity by way of an
exception to the general rule that hearsay
is no evidence and that evidence, which
has not been tested by cross-examination,
is not admissible. The purpose of crossexamination is to test the veracity of the
statements made by a witness. In the view
of the Legislature, that test is supplied by
the solemn occasion when it was made,
namely, at a time when the person making
the statement was in danger of losing his
life. At such a serious and solemn
moment, that person is not expected to tell
lies; and secondly, the test of crossexamination would not be available. In
such a case, the necessity of oath also has
been dispensed with for the same reasons.
Thus, a statement made by a dying person
as to the cause of death has been
accorded by the Legislature a special
sanctity which should, on first principles,
be respected unless there are clear
circumstances brought out in the evidence
o show that the person making the
statement was not in expectation of death,
not that that circumstance would affect
the admissibility of the statement, but only
its weight. It may also be shown by
evidence that a dying declaration is not
reliable because it was not made at the
earliest opportunity, and, thus, there was
a reasonable ground to believe its having
been put into the mouth of the dying man,
3 All. Ranjeet @ Jamidar Vs. State of U.P.
901
when his power of resistance against
telling a falsehood was ebbing away; or
because the statement has not been
properly recorded, for example, the
statement had been recorded as a result of
prompting by some interested parties or
was in answer to leading questions put by
the recording officer, or, by the person
purporting to reproduce that statement.
These may be some of the circumstances
which can be said to detract from the
value of a dying declaration. But in our
opinion, there is no absolute rule of law,
or even a rule of prudence which has
ripened into a rule of law, that a dying
declaration unless corroborated by other
independent evidence, is not fit to be
acted upon, and made the basis of a
conviction."

23. In "Paparambaka Rosamma
and Others v. State of A.P.", (1999) 7
SCC 695 it has been observed that where
conviction is solely based on the dying
declaration, the Court has to consider
carefully the dying declaration and the
evidence of the witnesses supporting it.
Case should be taken to ensure whether it
is established that the dying declaration
was genuine, true and free from doubts
and was recorded when the injured was in
a fit state of mind.

24. In the case of "Laxman Vs.
State of Maharashtra" (2002) 6 SCC
710, the Constitution Bench of Hon'ble
Court has held thus:-

"3. 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. The situation in
which a man is on the deathbed is so
solemn and serene, is the reason in law to
accept the veracity of his statement. It is
for this reason the requirements of oath
and cross-examination are dispensed
with. Since the accused has no power of
cross-examination, 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. In most
cases, however, such statements are made
orally before death ensues and is reduced
to writing by someone like a Magistrate
902 INDIAN LAW REPORTS ALLAHABAD SERIES
or a doctor or a police officer. When it is
recorded no oath is necessary nor is the
presence of a Magistrate absolutely
necessary, although to assure authenticity
it is usual to call a Magistrate, if
available for recording the statement of a
man about to die. 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 no 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 court
ultimately hold 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."

25. In "Laxmi V. Om Prakash",
(2001) 6 SCC 118, the Supreme Court has
pointed out that the admissibility of the
dying declaration rests on the principle of
necessity. The principles thereof have
been culled out in the following terms in
paras 28 and 29 of the pronouncement
which shed valuable light on the issue
under examination in the present case and
read as follows:-

"29. A dying declaration not
being a deposition in court, neither made
on oath nor in the presence of the accused
and therefore not tested by crossexamination is yet admissible in evidence
as an exception to the general rule
against the admissibility of hearsay. The
admissibility is founded on the principle
of necessity. The weak points of a dying
declaration serve to put the court on its
guard while testing its reliability and
impose on the court an obligation to
closely
scrutinise
all
the
relevant
attendant circumstances (see Tapinder
Singh v. State of Punjab, 1970 CriLJ
1415). One of the important tests of the
reliability of the dying declaration is a
finding arrived at by the court as to
satisfaction that the deceased was in a fit
state of mind and capable of making a
statement at the point of time when the
dying declaration purports to have been
made and/or recorded. The statement may
be brief or longish. It is not the length of
the statement but the fit state of mind of
the victim to narrate the facts of
occurrence which has relevance. If the
court finds that the capacity of the maker
of the statement to narrate the facts was
impaired or the court entertains grave
doubts whether the deceased was in a fit
physical and mental state to make the
statement the court may in the absence of
corroborating evidence lending assurance
to the contents of the declaration refuse to
act on it. In Bhagwan Das v. State of
Rajasthan (1957) 1 SCR 854, the learned
Sessions Judge found inter alia that it was
improbable if the maker of the dying
declaration was able to talk so as to make
a statement. This Court while upholding
the finding of the learned Sessions Judge
held the dying declaration by itself
insufficient for sustaining a conviction on
a charge of murder. In Kako Singh @
Surender Singh v. State of M.P. 1982
CriLJ 986, the dying declaration was
refused to be acted upon when there was
3 All. Ranjeet @ Jamidar Vs. State of U.P.
903
no specific statement by the doctor that
the deceased after being burnt was
conscious or could have made a coherent
statement. In Darshan Singh v.