# Sandeep @ Pintu v. State of U.P

- **Citation:** (2021) 11 ILRA 751
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-11-19
- **Bench:** Attau Rahman Masoodi, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-pintu-v-state-of-u-p-46694
- **Pages:** 14

## Headnote

A. Criminal Law - Circumstantial Evidence -
Dying declaration - Indian Penal Code,1860 -
Sections 302/34 & 307; Indian Evidence Act,
1872 - Sections 8 & 27.

Validity and the authenticity of the oral dying
declaration - It is not always necessary that a
dying declaration should be certified by a doctor
before reliance could be placed on the same. But
then in the absence of any such certificate, the
courts should be satisfied that from the material
on record it is safe to place reliance on such
uncertified declaration. (Para 24)

In the present case, the information/intimation given
by the injured Aditya Kumar (deceased) is an oral
dying declaration as the reproduction of the exact
words at every stage of trial and nothing could be
brought out in the cross-examination of PW. 2 to
doubt the truthfulness and veracity of his statement.
(Para 28)
Even though an oral dying declaration can form
basis of conviction in a given case, but such a
dying declaration has to be trustworthy and
free from every blemish and inspire confidence.
The reproduction of the exact words of the oral
declaration in such cases is very important.
(Para 25)

An oral dying declaration can form a basis of
conviction, if the same is established trustworthy and
free from every blemish and inspires confidence. In
the present case, the information given by the injured
to his brother/PW-2/complainant, was narrated in the
FIR, in the statement and in the cross examination,
by reproduction of exact words and the same was
also not impeached at the time of cross examination.
(Para 26)

The dying declaration should be of such a
nature as to inspire full confidence and in its
truthfulness and correctness and must qualify
triple test that statement of deceased was not
as a result of either tutoring or prompting or a
product of imagination. In the present case, it is
nowhere the case of the prosecution that the oral
dying declaration of the deceased is a result of either
tutoring or prompting or a product of imagination.
Hence

## Text

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11 All. Sandeep @ Pintu Vs. State of U.P.
751
Central Pay Commission. We expect the
appellants to create an adequate mechanism to
see to it that the persons employed by the
process of "Outsourcing" are not exploited in
any manner.

58.Accordingly, we have no difficulty in
setting aside the judgment of the Division Bench
dated 19.11.2018 and the consequential orders
passed while upholding the impugned Regulation.
The appeals are allowed with the following
directions:

(i) The respondents/writ petitioners in
Civil Appeal No 2753 of 2021 are directed to be
confirmed by granting adequate approval as Class
"IV" employees, having given prior approval.

(ii) The respondents/writ petitioners
and similarly placed persons who are recruited
by the institutions including the respondents
shall be continued with the same scale of pay as
if they are recruited prior to 08.09.2010 for
which the entire disbursement will have to be
made by the institutions alone.

(iii) The appellants shall undertake the
necessary exercise to see to it that there is a
mechanism available for the proper implementation
of "Outsourcing" with specific reference to the
conditions of service of those who are employed
while taking note of the recommendations made in
the Seventh Central Pay Commission".

 (emphasis supplied)

15. In the present case, as is evident from the
letter of the DIOS dated 14.7.2003, the appellantpetitioner's salary was approved for the post of
Assistant Clerk ( Class IV employee) with a
condition that such appointment would be subject to
the decision of the writ petition. The decision of the
DIOS dated 14.7.2003 is itself based on the interim
order dated 13.9.2002 passed by the writ court.

16. The decision in the case of Pawan
Kumar Misra (supra), in which it was held that
anything done without "prior approval" is a nullity,
would therefore, have to be read in terms of the
aforesaid judgement of the Supreme Court, that is to
say, an appointment without prior approval under
Section 101 of the Regulation would be a nullity in
so far as it purports to bind the State Government to
grant aid to the institution concerned for payment of
salary. The appointment made by the Principal of
the Institution, and the Manager of the institution
having forwarded the papers for approval of the
appointment of the appellant-petitioner, would not
be a nullity so far as the institution is concerned.

17. Under the circumstances and in view of
the settled law on the question, neither the appellantpetitioner nor the institution concerned have any
right to claim government aid for salary and others
dues of the appellant-petitioner. Since the appellantpetitioner has been found suitable for the post by the
management and was appointed without "prior
approval", the appointment would not be valid only
as far as any right to claim aid under Regulation 101
of Chapter III of the Regulation framed under the
Act of 1921 is concerned. Accordingly, the
judgement of the learned Judge is upheld. However,
this will not stand in the way of appellant-petitioner
claiming entitlement to pay and others dues from
the management itself in terms of judgement of the
Supreme Court in the case of State of U.P. and
others Vs. Principal Abhay Nandan Inter
College and others (supra).

18. Subject to above, the appeal is dismissed.
----------

(2021)11ILR A751
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR, J.

Criminal Appeal No. 256 of 2010

Sandeep @ Pintu ...Appellant
Versus
State of U.P. ...Respondent
752 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Vinod Kumar Yadav, Anil Kumar Tiwari, Jitendra
Mohan, Krishna Bhushan Tripathi, Manjusha
Kapil, Pawan Nigam, Rakesh Kumar Nayak

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Circumstantial Evidence -
Dying declaration - Indian Penal Code,1860 -
Sections 302/34 & 307; Indian Evidence Act,
1872 - Sections 8 & 27.

Validity and the authenticity of the oral dying
declaration - It is not always necessary that a
dying declaration should be certified by a doctor
before reliance could be placed on the same. But
then in the absence of any such certificate, the
courts should be satisfied that from the material
on record it is safe to place reliance on such
uncertified declaration. (Para 24)

In the present case, the information/intimation given
by the injured Aditya Kumar (deceased) is an oral
dying declaration as the reproduction of the exact
words at every stage of trial and nothing could be
brought out in the cross-examination of PW. 2 to
doubt the truthfulness and veracity of his statement.
(Para 28)
Even though an oral dying declaration can form
basis of conviction in a given case, but such a
dying declaration has to be trustworthy and
free from every blemish and inspire confidence.
The reproduction of the exact words of the oral
declaration in such cases is very important.
(Para 25)

An oral dying declaration can form a basis of
conviction, if the same is established trustworthy and
free from every blemish and inspires confidence. In
the present case, the information given by the injured
to his brother/PW-2/complainant, was narrated in the
FIR, in the statement and in the cross examination,
by reproduction of exact words and the same was
also not impeached at the time of cross examination.
(Para 26)

The dying declaration should be of such a
nature as to inspire full confidence and in its
truthfulness and correctness and must qualify
triple test that statement of deceased was not
as a result of either tutoring or prompting or a
product of imagination. In the present case, it is
nowhere the case of the prosecution that the oral
dying declaration of the deceased is a result of either
tutoring or prompting or a product of imagination.
Hence, the oral dying declaration inspire full
confidence in its truthfulness and correctness. (Para
29)
B.
The
accused
cannot
be
unpunished
particularly when the bloodstains were found
of human origin, though the blood group could
not be determined as by the time the
bloodstains were examined by the Forensic
Science Laboratory, they (bloodstains) were
disintegrated. (Para 31)

It is an undisputed position in the present case, as
per the FSL report that the blood was disintegrated,
though the blood group could not be determined but
the blood which was found on the clothes of the
appellant was human blood. (Para 32)

C.
Indian
Evidence
Act:
Section
8
-
Admissibility of the recovery memo as an
admissible piece of evidence - Recovery made
on the pointing out of the accused person
would be admissible u/s 8 of the Evidence Act,
1872. (Para 33)

If for the sake of argument, it is accepted that the
recovery alleged is not admissible u/s 27 of the
Evidence Act, yet the pointing out of the accused
leading to recovery may be a conduct admissible u/s
8 of the Evidence Act. (Para 22, 33)

D. Nothing has been tried to improve in the
prosecution case. In the present case, the version
of the FIR, the examination in chief of PW-2
(complainant/brother of the deceased) and in the
cross examination, the version is the same about the
dying declaration and except that the father was also
present when the statement was given. (Para 34, 35)

E. Motive - It is not necessary that in every
case some motive must be alleged or proved
before recording any conviction against any
accused
person,
where
the
prosecution
evidence is trustworthy, proving the allegation
of prosecution and which inspires confidence in
truthfulness of the prosecution case and in the
unimpeachable evidence of the prosecution the
question of motive remains no more essential
or relevant. In the present case, the other evidence
is corroborating with the prosecution story. (Para 38)
11 All. Sandeep @ Pintu Vs. State of U.P.
753
Appeal dismissed. (E-4)

Precedent followed:

1. Chacko Vs St. of Kerala, (2003) 1 SCC 112 (Para
24)

2. Darshana Devi Vs St. of Pun., 1996 SCC (Cri) 38
(Para 19)

3. Laxman Vs St. of Mah., AIR 2002 SC 2973 (Para
19)

4. Prabhu Dayal Vs St. of Raj., 2008 2 JIC 642 (SC)
(Para 23)

5. Himachal Pradesh Administration Vs Shri Om
Prakash, (1972) 1 SCC 249 (Para 22)

6. Jagdish Narain & anr. Vs St. of U.P., 1996 SCC (Cri)
565 (Para 20)

7. Prakash Chand Vs State (Delhi Administration),
1979 SCC (Cri) 656 (Para 22)

8. A.N. Venkatesh & anr. Vs St. of Karn., 2005 SCC
(Cri) 1938 (Para 22)

Precedent distinguished:

1. Nawab Singh & ors. Vs St. of U.P., 2008 (1) ALJ
(NOC) 89 (All.) (Para 16)

2. Surinder Kumar Vs St. of Hary., (2011) 10 SCC 173
(Para 16)

3. Sampat Babso Kale & anr. Vs St. of Mah., (2019) 4
SCC 739 (Para 16)

4. Balaji Vs St. of Mah., (2019) 15 SCC 575 (Para
17)

5. St.of Guj.Vs Mohan Bhai Raghubhai Patel & anr.,
(1992) Supp (3) SCC 87 (Para 17)

6. St. of Mah. Vs Sanjay S/o Digambar Rao Rajhans,
(2004) 13 SCC 314 (Para 17)

Precedent cited:

1. Gurcharan Singh & anr. Vs St. of Pun., AIR 1956
SC 460 (Para 13)

Present appeal challenges judgment and order
dated
16.01.2010,
passed
by
Additional
Sessions Judge, Ambedkar Nagar.

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

1. This criminal appeal has been filed by
the appellant against the judgment and order
dated 16.01.2010 passed by the Additional
Sessions Judge, Ambedkar Nagar in Sessions
Trial No. 24 of 2003, arising out of Crime No.
192 of 2002 under Section 302/34 of the Indian
Penal Code (hereinafter referred to as, the IPC),
registered at Police Station Kotwali Tanda,
District
Ambedkar
Nagar
convicting
the
appellant Sandeep @ Pintu and sentencing him
for imprisonment for life.

2. Heard Shri Anil Kumar Tiwari, learned
counsel for the appellant and Shri Umesh
Verma, learned AGA for the State and perused
the impugned judgment and order passed by the
trial court and also the lower court record.

3. As per the prosecution case, on
02.09.2002, an FIR was lodged by the
complainant, who is the brother of the
injured/deceased under Section 307 IPC which
was subsequently, converted to Section 302 IPC
on 03.09.2002 against the appellant and one
unknown person stating therein, that on
02.09.2002, his younger brother Aditya Kumar
left the home at 8.00 PM for attending some
party. At around 9.45 PM, he came home with
injuries on his body and on inquiring about the
injuries, it was told by him that "right now
Sandeep @ Pintu (present appellant) and one
unknown person stabbed him by knife near
Atithi Villa". There were injuries on the chest
and other parts of the body of the injured.

4. After investigation, the charge sheet was
filed under Section 302/34 IPC in the Court
against the present appellant and one accused
person namely, Saurabh Srivastava.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The trial court framed charges against the
co-accused Saurabh Srivastava and Sandeep @
Pintu (present appellant) under Section 302/34
IPC. The accused persons denied the charges and
claimed to be tried.

6. The prosecution in order to prove its case
examined Atul Kumar Gupta, the friend of the
deceased
as
PW-1,
Kamlesh
Kumar,
the
complainant and the brother of the deceasedAditya Kumar as PW-2, Anil Kumar Gupta, owner
of the Juice Corner as PW-3, Vijay Shanker Singh,
witness of recovery as PW-4, Kaushal Kishore,
witness of recovery as PW-5, Inspector Sarnath
Singh as PW-6, Dr. Atal Verma as PW-7, SI J.K.
Singh as PW-8, SI Ramesh Chand as PW-9.

7. As documentary evidence, the prosecution
has proved a copy of the FIR as exhibit Ka-1, Chik
Shankhya 125/02 as exhibit Ka-15, Report No. 42
for lodging the FIR and registering the Case Crime
No. 192 of 2002 in Rojnamacha Aam as exhibit
Ka-16-carbon copy, Report No. 20 in Rojnamcha
Aam for conversion of the case from Section 307
to Section 302 IPC as exhibit Ka-17-carbon copy,
site plan as exhibit Ka-8, the blood-stained and
plain soil and two pairs of slippers recovered as
exhibit ka-2, the inquest report as exhibit Ka-9,
photo of the body of the deceased challan nash,
namoona mohar letter by CMO as exhibit Ka 10
and ka-14 respectively. The post mortem report
prepared by Dr. Atal Verma in his hand writing
and signature as exhibit Ka-7, the recovery memo
of the knife recovered used in the crime as exhibit
Ka-3, recovery memo of recovery of one pant, tshirt (blood stained) as exhibit Ka-17. The
recovery of blood stained one pant and t-shirt as
exhibit Ka-4, the site plan of the place of recovery
of knife recovered as exhibit Ka-5, the Charge
sheet as exhibit Ka-6 and the FSL report as exhibit
Ka-18.

8. The statements of the accused persons
were recorded under Section 313 of the Code of
Criminal Procedure (in short, the Cr.P.C.)
wherein, they had denied the commission of
crime and stated that the case has been
registered falsely due to enmity and in
connivance with the conspiracy of the persons
against the appellant and also denied the
recovery. It is not the case of the appellant that
the trial court, while affording opportunity to the
accused under Section 313 Cr.P.C. has not
questioned him on any aspect of the evidence
that would have caused any prejudice to him. It
is equally not the case of the appellant that any
material has gone unnoticed as he has not led
any evidence in defence. The accused persons
were asked to give defence evidence but they
did not choose to adduce any.

9. The trial court on the appreciation of
evidence before it found that the FIR was lodged
promptly by the complainant on the basis of the
information given by the victim-deceased which
fact was duly proved by the oral testimony of
P.W-2. The trial court treated the statement of
victim/deceased to PW.2/brother, as oral dying
declaration.

10. According to the trial court that the
injuries of the victim deceased as stated about by
PW. 2 is corrroborated by the post-mortem
report as proved in evidence by PW 7- Dr. Atal
Verma.

11. The trial court did not accept the
argument that the victim/deceased with injuries
on his person could not walk down to his house
which is hardly 300-400 metres/121 steps away
from the place of incident.

12. The trial court also found that nothing
could be shown from the cross-examination of
the witnesses to doubt their testimony, the
recoveries of the knife and blood-stained items
were also found to be proved.

13. The co-accused Saurabh Srivastava
was though acquitted by the trial court but on the
11 All. Sandeep @ Pintu Vs. State of U.P.
755
ground that his name was not taken by the
victim-deceased nor by his brother PW. 2,
therefore, the trial court extended him the
benefit of doubt. Even otherwise it is well settled
in the case of Gurcharan Singh and Anr. vs.
State of Punjab [AIR 1956 SC 460] that a coaccused acquitted on the strength of same set of
facts and evidence does not entail a consequence
of parity where the benefit of doubt is extended
to the co-accused on some clinching distinction,
as is the case at hand.

14. The evidence of the case proved
against the accused convicted and sentenced him
as mentioned above.

15. Learned counsel for the appellant has
submitted that due to several injuries inflicted
upon the body of the Aditya Kumar, it was
improbable for him to go home on his own and
it was also not possible to state anything to his
brother as recorded in the FIR and from the
place of incident till the house of injured, even
no trail of blood was found.

16. It is further contended that before
treating any statement as a dying declaration, the
mental and physical health is to be certified by a
doctor but in the present case, the same was not
done. In support of his submission, learned
counsel for the appellant has relied on the
judgments rendered by the Hon'ble Supreme
Court in the cases of Nawab Singh Vs. Others
Vs. State of Uttar Pradesh [2008 (1) ALJ
(NOC) 89 (ALL.)] , Surinder Kumar Vs.
State of Haryana [(2011) 10 SCC 173] and
Sampat Babso Kale and another Vs. State of
Maharashtra [ (2019) 4 SCC 739].

17. Learned counsel for the appellant next
argued that the recovery made is not admissible
under Section 27 of the Evidence Act, 1872 for
the reason that the human blood found on the
clothes of the appellant was not matched with
the blood sample of the deceased. It is further
contended that the prosecution has failed to
allege or prove any motive for the appellant to
commit the crime and in support of his
submission, relied upon para no. 19 of the
judgment of Hon'ble Supreme Court in the case
of Balaji Vs. State of Maharashtra [ (2019) 15
SCC 575]. Learned counsel for the appellant has
further relied upon para no. 5 of the judgment
rendered by Hon'ble Supreme Court in the case
of State of Gujarat Vs. Mohan Bhai Raghbhai
Patel and another [ (1992) Supp (3) SCC 87].
Learned counsel for the appellant has also relied
upon the para no. 5 of the judgment in the case
of State of Maharashtra Vs. Sanjay S/o
Digambar Rao Rajhans [(2004) 13 SCC 314]
rendered by Hon'ble Supreme Court to support
his case on the above aspect.

18. On the other hand, learned AGA
conceding the fact that the case, at hand, is a
case of circumstantial evidence has ably
demonstrated that the last oral dying declaration
of the deceased has since been corroborated by
the witness (P.W. 2) word by word, therefore,
the prosecution has discharged the burden of
proof beyond reasonable doubt. It has been
further submitted that the FIR was lodged by
PW 2 naming the appellant in pursuance of the
statement/information given by his brother
Aditya Kumar (deceased), immediately after the
occurrence, falls under the purview of oral dying
declaration and an oral dying declaration can
form basis of conviction, provided the same is
reliable in evidence. The creditworthiness of the
oral dying declaration was well tested in the trial
and reproduction of the exact words in the oral
testimony
of
P.W.-2
have
sanctified its
truthfulness beyond a reasonable doubt.

19. The aforesaid dying declaration has not
been impeached during the cross examination of
the PW -2. In support of his submissions, learned
AGA has relied upon the judgment of Hon'ble the
Apex Court in the case of Darshana Devi Vs.
State of Punjab [1996 SCC (Cri) 38]. In the light
756 INDIAN LAW REPORTS ALLAHABAD SERIES
of the judgment of the Apex Court, it is argued that
the veracity of dying declaration is to be tested on
triple test i.e. the dying declaration is not as a result
of either tutoring or prompting or a product of
imagination and in support of his submissions,
relied upon the judgment in the case of Laxman
Vs. State of Maharashtra [ AIR 2002 SC 2973]. It
has further been argued by learned AGA that
doubting the prosecution case by the appellant that
the injured/ deceased-Aditya Kumar could not
reach his home on his own is against the weight of
evidence on record and is wholly misplaced. In
support of the judgment impugned, learned AGA
has relied upon the statement of Investigating
Officer (PW 8), who had made a statement that the
blood stains were found on the wall of the house
and when the same may be read along with the
statement of the PW 2, it is clear that the oral
testimony of P.W. 2 lends complete support to the
credence of P.W. 8 that the blood stains were
found on the stairs and wall of the house linking
the trail upto the place of occurrence, as mentioned
in the site plan.

20. It is further submitted that the statement
given by the Investigating Officer is an admissible
piece of evidence as the same is not on the basis of
hearsay but the Investigating Officer recorded the
same after he had observed the blood on the stairs
and wall while preparing the site plan. In support
of his submissions, he relied upon the judgment
rendered by Hon'ble Supreme Court in the case of
Jagdish Narain and anothers Vs. State of Uttar
Pradesh [1996 SCC (Cri) 565]. Taking us through
the suggestions made to PW-2 that he was not at
home when his injured brother reached home,
meaning thereby, reaching of the injured at home
was not disputed or denied but the doubt or dispute
which was suggested regarding the presence of
PW-2 at home during night hours rather lends
support to the case of prosecution about reaching
of the deceased at home on his own.

21. Learned AGA has submitted that the
oral testimony of the doctor who conducted the
post-mortem, in his cross examination, has not
suggested anything that the injured was not in a
position to reach home on his own and was
unable to state anything. The injuries mentioned
in the post-mortem report would not alone
discredit the last oral dying declaration unless
the defence had succeeded to fish out any doubt
in the cross-examination. Learned AGA has
further submitted that as per the site plan, it has
specifically been shown that the trail of blood
was found on the road from the place of incident
till the house of the injured and his physical
condition to make the last oral declaration being
doubtless has rightly been construed in view of
the evidence on record.

22. It is further contended that the recovery
was not disputed and the same has been proved
but the submissions raised before this Court that
the recovery made is not admissible under
Section 27 of the Evidence Act, 1872 is also
unacceptable. It was submitted that if for the
sake of argument, it is accepted that the recovery
alleged is not admissible under Section 27 of the
Evidence Act, yet the pointing out of the
accused leading to recovery may be a conduct
admissible under Section 8 of the Evidence Act,
and in support of his submissions learned AGA
has relied upon several judgments reported in
Himachal Pradesh Administration vs. Shri Om
Prakash [(1972) 1 SCC 249], Prakash Chand
vs. State (Delhi Administration) [1979 SCC
(Cri) 656], A.N. Venkatesh and another vs.
State of Karnataka [2005 SCC (Cri) 1938].

23 It is further contended that the
submissions of the learned counsel for the
appellant that the human blood found on the
clothes of the appellant was not matched with
the blood of the deceased; in certain cases,
where the blood is disintegrated and matching of
the same is not possible and it could not give
any advantage to the accused. In the FSL report,
it has specifically been mentioned that the blood
was disintegrated and in support of his
11 All. Sandeep @ Pintu Vs. State of U.P.
757
submissions relied upon the judgment of Hon'ble
Supreme Court in the case of Prabhu Dayal vs.
State of Rajasthan [2018 2 JIC 642 (SC)].

24. After hearing the learned counsel for
the respective parties and examining the lower
court record, as per the prosecution story,
naming the appellant in the FIR along with an
unknown person was on the basis of the
statement made by the injured Aditya Kumar
(deceased) to the complainant/PW-2. It is to be
seen whether such a revelation may be treated as
oral dying declaration or not. The argument putforth by learned counsel for the appellant that
the doctor had not certified the medical
condition of the injured to give dying
declaration, is wholly misplaced and the
judgments relied upon are inapplicable in the
facts and circumstances of the present case. The
argument advanced by learned counsel for the
appellant on the strength of the judgment in the
case of Chacko vs. State of Kerala [(2003) 1
SCC 112]. The relevant extract of the case of
Chacko
(supra)
is
being
reproduced
hereinbelow:-

"Having heard learned counsel for the
parties and perused the records, we find it
difficult to accept the prosecution case based on
the dying declaration allegedly made by the
deceased. As pointed out by the learned counsel
for the appellant, it is very difficult to accept the
prosecution case that the deceased who was of
about 70 years, and had suffered 80% burns
could make a detailed dying declaration after 8
to 9 hours of the burning giving minute
particulars as to the motive, the manner in
which she suffered the injuries. This, in our
opinion, itself creates a doubt in our mind apart
as to the genuineness of the declaration [See :
Munnu Raja & Anr. vs. State of Madhya
Pradesh, (AIR 1976 SC 2199 para 6)]. Further
in the absence of any certificate by a competent
doctor as to the mental and physical condition of
the deceased to make such a dying declaration,
we think it is not safe to rely on the same. We
are aware of the judicial pronouncements of this
Court that it is not always necessary that a
dying declaration should be certified by a doctor
before reliance could be placed on the same. But
then in the absence of any such certificate, the
courts should be satisfied that from the material
on record it is safe to place reliance on such
uncertified declaration. (emphasis laid by us)
[See : Ram Bai vs. State of Chhattisgarh (2002
(8) SCC 83)]. In the instant case it is not as if
the doctor was not available. As a matter of fact,
PW-3 who treated the deceased in the first
instance was available at the time when the
deceased allegedly made the dying declaration,
still we find he has neither given a certificate as
to the condition of the deceased nor has he
attested the said document. That apart, a
perusal of the dying declaration as per Ex. P-4
shows that the contents of the documents are so
arranged so as to accommodate the space which
is above the thumb impression which we think is
not a normal way of recording a statement if the
same was genuine. This is also a ground to
suspect the genuineness of the document. Then
again as complained by the learned counsel for
the appellant, we notice that on 28.7.1996 at
about 5.30 p.m. the Police had known that it was
the appellant who had committed this crime but
in the inquest report which was drawn on
29.7.1996 in Column No.12 corresponding to
the name of the suspect, it is specifically
mentioned 'No' meaning thereby that the officer
who drew this document did not have the
knowledge that it is the appellant who had
caused the injury. This is the very same person
(PW-5) who has scribed Ex. P-4. The above
factor coupled with the manner in which the
incident has been recorded in Ex. P-4 certainly
creates a grave doubt in our mind as to the
genuineness of the dying declaration Ex. P-4.
The fact that PW-3, the doctor, had recorded
that "patient conscious, talking" in the wound
certificate by itself would not in any manner
further the prosecution case as to the condition
758 INDIAN LAW REPORTS ALLAHABAD SERIES
of the patient to make the dying declaration nor
does his oral evidence as also that of the
investigating officer made in the court for the
first time would in any manner improve the
prosecution case."

25. With the aforesaid judgment cited by
the learned counsel for the appellant, the
judgment cited by the learned AGA in the case
of Darshna Devi (supra) relating to the validity
and the authenticity of the oral dying declaration
is also to be seen and the relevant para is being
quoted hereinbelow:-

"There is variance in the statements of
the two witnesses with regard to the exact words
allegedly used by the deceased. According to
PW 2, the deceased had stated that the appellant
had sprinkled kerosene on him when he was
lying asleep and had burnt him, while Lachhmi
Devi, PW 1 did not attribute any such statement
to the deceased. PW 1 reiterated in her crossexamination "all that Madan Lal told me was
that he had been burnt by Darshana Devi by
sprinkling koresene" Even though an oral dying
declaration can form basis of conviction in a
given case, but such a dying declaration has to
be trustworthy and free from every blemish and
inspire confidence. The reproduction of the
exact words of the oral declaration in such cases
is very important. The difference in the exact
words of the declaration in this case detract
materially from the value of the oral dying
declaration." (emphasis laid by us)

26. After going through the submissions
and the judgments of the Hon'ble Supreme
Court, it has come out that an oral dying
declaration can form a basis of conviction, if the
same is established trustworthy and free from
every blemish and inspires confidence. The
reproduction of the exact words of the oral dying
declaration in such cases is very important and
here the information given by the injured to his
brother/PW-2/complainant narrated in the FIR,
in the statement and in the cross examination, by
reproduction of exact words and the same was
also not impeached at the time of cross
examination.

27. The witness reproduced in the exact
words used by his deceased brother in all the
places i.e. in the FIR, statement and at the time
of cross-examination. For convenience, the same
is quoted below:-

"वक मुझे अभी अवतवथ विला के पास सोंर्ीप
उर्द वपोंटू ि उनक एक अज्ञात साथी ने चाकू मार
वर्या है"

28. Similarly, the case law in the case of
Chako (supra) relied by the learned counsel for
the appellant has held that in absence of any
certificate by a competent doctor as the mental
and physical condition of the deceased to make
such a dying declaration, is not safe to rely but it
can be acted upon in absence of any such
certificate, if the Court would be satisfied that
from the material on record, it is safe to place
reliance on such uncertified declaration. In the
present case, the information/intimation given
by the injured Aditya Kumar (deceased) is an
oral dying declaration as the reproduction of the
exact words at every stage of trial and nothing
could be brought out in the cross-examination of
PW. 2 to doubt the truthfulness and veracity of
his statement.

29. As per the judgment of Hon'ble
Supreme Court in the case of Laxman (supra),
the dying declaration should be of such a nature
as to inspire full confidence and and in its
truthfulness and correctness and must qualify
triple test that statement of deceased was not as a
result of either tutoring or prompting or a
product of imagination. Here in the present case,
it is nowhere the case of the prosecution that the
oral dying declaration of the deceased is a result
of either tutoring or prompting or a product of
11 All. Sandeep @ Pintu Vs. State of U.P.
759
imagination. Hence, the oral dying declaration
inspire full confidence in its truthfulness and
correctness.

30. At the same time, the material on
record i.e. the recovery of blood stained clothes
and the FSL Report pointing out that the blood
was found on the clothes of the appellant was a
human blood. The submission on behalf of the
appellant that the injured Aditya Kumar could
not reach his house on his own and was also not
in a position to state anything and there is no
blood found in between the place of incident and
the house of the injured makes the prosecution
story false. The submission put-forth by learned
counsel for the appellant are untenable. As per
the site plan prepared by the Investigating
Officer the blood trail was found from the place
of incident to the house of injured Aditya
Kumar. This falsifies the argument of learned
counsel for the appellant that no blood trail was
found rather it lends support to the prosecution
case, as an independent circumstance that the
deceased had gone to his house from the place of
incident.
The
Investigating
Officer
while
preparing the site plan has shown blood stains
on the walls of the house which is admissible as
per the law settled by the Hon'ble Apex Court
and PW 2 had also made a statement that the
blood was there on the walls of his house, it also
lends support to the prosecution case. Apart
from that, at the time of cross examination, no
such suggestion was made to the Doctor that the
injured could not be in a position to reach his
home with injuries on his body.

31. As far as the submissions that the blood
found on the clothes of the appellant were not
matched with the blood of the deceased is of no
avail as per the law settled by the Hon'ble Apex
Court in the case of Prabhu Dayal (Supra). The
relevant extract is being quoted hereinbelow:-

"The reports of the Forensic Science
Laboratory as well as those of the Ballistic
Experts have been perused by us. The Forensic
Science Laboratory report discloses that the
samples collected from the scene of the offence
had bloodstains of human origin. However,
since the bloodstains were disintegrated by the
time the bloodstains were examined by the
Forensic Science Laboratory, the blood group
could not be determined. For the same, the
accused
cannot
be
unpunished,
more
particularly when the bloodstains were found of
human origin. (emphasis laid by us)

In State of Rajasthan v. Teja Ram,
(1999) 3 SCC 507, this Court concluded that
even when the origin of the blood cannot be
determined, it does not necessarily prove fatal to
the case of the prosecution. In that case, the
murder weapons had been recovered with blood
on them, and the origin of the blood on one of
the weapons could not be determined. Therein,
the Court held as follows:

"25. Failure of the serologist to detect
the origin of the blood due to disintegration of
the serum in the meanwhile does not mean that
the blood stuck on the axe would not have been
human blood at all. Sometimes it happens, either
because the stain is too insufficient or due to
haematological
changes
and
plasmatic
coagulation that a serologist might fail to detect
the origin of the blood. Will it then mean that the
blood would be of some other origin? Such
guesswork that blood on the other axe would
have been animal blood is unrealistic and farfetched in the broad spectrum of this case. The
effort of the criminal court should not be to
prowl for imaginative doubts. Unless the doubt
is of a reasonable dimension which a judicially
conscientious
mind
entertains
with
some
objectivity, no benefit can be claimed by the
accused.

26. Learned counsel for the accused
made an effort to sustain the rejection of the
abovesaid evidence for which he cited the
decisions in Prabhu Babaji Navle v. State of
Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147]
and Raghav Prapanna Tripathi v. State of U.P.
760 INDIAN LAW REPORTS ALLAHABAD SERIES
[AIR 1963 SC 74 : (1963) 1 Cri LJ 70] In the
former, Vivian Bose, J. has observed that the
chemical examiner's duty is to indicate the
number of bloodstains found by him on each
exhibit and the extent of each stain unless they
are too minute or too numerous to be described
in detail. It was a case in which one
circumstance projected by the prosecution was
just one spot of blood on a dhoti. Their
Lordships felt that "blood could equally have
spurted on the dhoti of a wholly innocent person
passing through in the circumstances described
by us earlier in the judgment". In the latter
decision, this Court observed regarding the
certificate of a chemical examiner that inasmuch
as the bloodstain is not proved to be of human
origin the circumstance has no evidentiary value
"in the circumstances" connecting the accused
with the murder. The further part of the
circumstance in that case showed that a shirt
was seized from a dry cleaning establishment
and the proprietor of the said establishment had
testified that when the shirt was given to him for
dry cleaning, it was not bloodstained.

27. We are unable to find out from the
aforesaid decisions any legal ratio that in all
cases where there was failure of detecting the
origin of the blood, the circumstance arising
from recovery of the weapon would stand
relegated to disutility. The observations in the
aforesaid cases were made on the fact situation
existing therein. They cannot be imported to a
case where the facts are materially different."

32. From perusal of the above judgment, it is
clear where the blood stains were disintegrated by
lapse of time the blood stains were examined by
the FSL, as it is in the present case, the blood
group could not be determined. For the same, the
accused
could
not
be
unpunished,
more
particularly, when the blood stains found were of
human origin and it is an undisputed position in the
present case, as per the FSL report that the blood
was disintegrated and the blood which was found
on the clothes of the appellant was human blood.

33. As far as the contention raised by
learned counsel for the appellant regarding
admissibility of the recovery memo as an
admissible piece of evidence, it is also not
accepted as per law laid down by the Hon'ble
Supreme Court, where the recovery made on the
pointing out of the accused person would be
admissible under Section 8 of the Evidence Act,
1872. The relevant extracts of the judgments are
quoted hereinbelow:-

Para 14 of the judgment rendered in
the case of Himachal Pradesh Administration
(supra) is quoted hereinbelow, for ready
reference:-

"14. In the Full Bench judgment of
seven Judges in Sukhan v. The Crown, which
was approved by the Privy Council in Pulkuri
Kotayya's case, Shadi Lal, C.J., as he then was
speaking for the majority pointed out that the
expression 'fact' as defined by Sec. 3 of the
Evidence Act includes not only the physical fact
which can be perceived by the senses but also
the psychological fact or mental condition of
which any person is conscious and that it is in
the former sense that the word used by the
Legislature refers to a material and not to a
mental fact. It is clear therefore that what
should be discovered is the material fact and the
information that is admissible is that which has
caused that discovery so as to connect the
information and the fact with each other as the
'cause and effect'. That information which does
not distinctly connect with the fact discovered or
that portion of the information which merely
explains the material thing discovered is not
admissible under Sec. 27 and cannot be proved.
As explained by this Court as well as by the
Privy Council, normally Sec. 27 is brought into
operation where a person in police custody
produces from some place of concealment some
object said to be connected with the, crime of
which the informant is the accused. The
concealment of the fact which is not known to
the police is what is discovered by the
11 All. Sandeep @ Pintu Vs. State of U.P.
761
information and lends assurance that the
information was true. No witness with whom
some material fact, such as the weapon of
murder, stolen' 'property or other in eliminating
article is not hidden sold or kept and which is
unknown to the Police can be said to be
discovered as a consequence of the information
furnished by the accused. These examples
however are only by way of illustration and are
not exhaustive. What makes the information
leading to the discovery of the witness
admissible is the discovery from him of the thing
sold to him or hidden or kept with him which the
police did not know until the. information was
furnished to them by the accused. A witness
cannot be said to be discovered if nothing is to
be found or recovered from him as a
consequence of the information furnished by the
accused and the information which disclosed the
identity of the witness will not be admissible.
(emphasis laid by us) But even apart from- the
admissibility of the information under Sec. 27,
the evidence of the Investigating Officer and the
panchas that the accused had taken them to
P.W. 11 and pointed him out and as
corroborated by P.W. 11 himself would be
admissible under Sec. 8 of the Evidence Act as
conduct of the accused."

Para 8 of the judgment rendered by
Hon'ble Supreme Court in the case of Prakash
Chand (supra) is reproduced hereinbelow, for
ready reference:-

"8.