# Shishupal Singh v. State of U.P

- **Citation:** (2023) 5 ILRA 1020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Criminal Appeal No. 7125 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shishupal-singh-v-state-of-u-p-50070
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 498A, 304B,
302
and
3⁄4
D.P.
Act-Challenge
toConviction-complainant had no motive to
falsely implicate the accused-there is
clinching
evidence
to
support
the
prosecution's case-dying declaration of
the deceased is supported by prosecution
witnesses
i.e.
PW-1,
PW-4
and
independent prosecution witness PW-3Also, medical evidence fully supports the
prosecution version-place of occurrence is
not disputed by the defence-accused had
strong motive as he had second wife and
the present wife(victim) had not borne
any child for four years during the marital
life -this is a case of direct evidenceTherefore, the prosecution has proved the
charge
leveled
against
the
accused
beyond reasonable doubt-The accused has
been in jail for more than 15 years, he has
already undergone sufficient incarceration
therefore, applying the sentencing policy
of 14 years at par with the judgment of
the Apex Court in the case of Vikas Yadav,
appellant is liable to be released from
jail.(Para 1 to 29)

The appeal is disposed of. (E-6)

List of Cases cited:

Bijoy Das Vs St. of W.B. (2008) 4 SCC 511

## Text

1020 INDIAN LAW REPORTS ALLAHABAD SERIES

53. Accordingly, both the criminal
appeals are partly allowed.

54. Consequently, the judgment and
order dated 25th September, 2007 passed
by the Special Judge (E.C. Act), Meerut in
Sessions Trial No. 862 of 2002 (State Vs.
Narendra & Others), arising out of Case
Crime No. 135 of 2002, under Sections
147, 148, 307, 302 and 506 I.P.C., Police
Station-Jani, District-Meerut is modified to
the extent as aforesaid.

55. The accused-appellants, namely,
Narendra and Pappi, who are reported to be in
jail since 2007 shall be released on compliance
of Section 437-A Cr.P.C., unless they are
wanted in any other case forthwith, whereas
the accused-appellants, namely, Satendra and
Pappan, are reported to be on bail and thus
need not surrender and their bail bonds stand
discharged. They shall be set free subject to
compliance of Section 437-A Cr.P.C., unless
they are wanted in any other case.

56. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Meerut henceforth, who shall transmit the
same to the concerned Jail Superintendent
for release of the accused-appellants in
terms of this judgment.
----------
(2023) 5 ILRA 1020
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 7125 of 2007

Shishupal Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Brij Raj Singh, Sri H.P. Mishra, Sri Rajesh
Kumar Dubey, Sri Satya Prakash, Sri Shashi
Shekhar Mishra(A.C.)

Counsel for the Respondent:
G.A., Sri R.K. Yadav

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 498A, 304B,
302
and
3⁄4
D.P.
Act-Challenge
toConviction-complainant had no motive to
falsely implicate the accused-there is
clinching
evidence
to
support
the
prosecution's case-dying declaration of
the deceased is supported by prosecution
witnesses
i.e.
PW-1,
PW-4
and
independent prosecution witness PW-3Also, medical evidence fully supports the
prosecution version-place of occurrence is
not disputed by the defence-accused had
strong motive as he had second wife and
the present wife(victim) had not borne
any child for four years during the marital
life -this is a case of direct evidenceTherefore, the prosecution has proved the
charge
leveled
against
the
accused
beyond reasonable doubt-The accused has
been in jail for more than 15 years, he has
already undergone sufficient incarceration
therefore, applying the sentencing policy
of 14 years at par with the judgment of
the Apex Court in the case of Vikas Yadav,
appellant is liable to be released from
jail.(Para 1 to 29)

The appeal is disposed of. (E-6)

List of Cases cited:

Bijoy Das Vs St. of W.B. (2008) 4 SCC 511

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Present criminal appeal challenges
judgment and order dated 15.10.2007
passed by the learned Additional Sessions
5 All. Shishupal Singh Vs. State of U.P.
1021
Judge/Fast Track Court, Court No. 3,
Mainpuri, in Sessions Trial No.159 of 2006
(State Vs. Shishupal Singh) arising out of
Case Crime No. 118 of 2006 under
Sections 498-A, 304B I.P.C.and Sections 3⁄4
D.P. Act Police Station-Bewar, DistrictMainpuri, whereby the learned Additional
Sessions Judge/Fast Track Court, Court No.
3, Mainpuri has convicted the accusedappellant, Shishupal Singh for commission
of offence under Section 302 of Indian
Penal Code, 1860 (for short 'IPC') and
sentenced him to undergo imprisonment for
life with fine of Rs.5,000/- and in default
thereof, to further undergo six months
additional imprisonment.

2. Heard Sri Shashi Shekhar Mishra,
learned Amicus Curiae for the accusedappellant and learned A.G.A. for the State.

3. Brief facts of the case is that the
informant/P.W.1 Vidya Devi has given a
written report (Exhibit-ka/1) on 4th March,
2006 to the Police Station-Bevar, DistrictMainpuri alleging therein that the marriage
of her daughter, namely, Laxmi Devi was
solemnised with the accused-appellant
Shishupal four years ago by giving a lot of
dowry. Just after the marriage, the husband
of her daughter Laxmi Devi i.e. the
accused-appellant,
her
mother-in-law
Gangadevi, father-in-law Subedar Singh
and elder-brother-in-law (Jeth) used to
harass, torture and beat her for additional
demand of dowry, due to which the
informant/P.W.-1 did not send her to her inlaws' place and she kept her at her place. It
is further alleged that in-laws of her
daughter wanted to solemnize the marriage
of Shishupal at another place after killing
her daughter. Nandoi of daughter of the
informant (husband of her sister-in-law),
namely,
Grish
Chandra
along
with
Kishanpal came to her place 20 days ago,
to take her daughter along with them to the
place of her in-laws and both of them gave
an assurance that nothing wrong would
happen in future with her daughter and
guaranteed her that if anything happens
now, it would be their responsibility. On the
said persuasion, the informant/P.W.-1 sent
her daughter Laxmi Devi with them.
Lakshmi herself was a student of B.A. and
Lakshmi's husband used to work in P.A.C.
On 03.03.2006 at around 8:00 a.m.,
neighbour of the informant, namely, Ram
Kishan informed her that Lakshmi's health
is bad, at that time she was at her second
daughter
Triveni's
in-laws
house.
Neighbour of the informant, namely, Lal
Ram and son of her brother-in-law (Jeth)
along with his family went to the place of
occurrence i.e. Bevar. When they came to
know that the daughter of the informant i.e.
Laxmi had gone to Government Hospital,
Mainpuri, they went to Mainpuri. On
reaching Maipuri they saw the daughter of
the
informant
in
dead
condition
at
Mortuary. At mortuary, apart from the
neighbour of the informant, namely, Lal
Ram and son of her brother-in-law (Jeth)
along with his family, only the father-inlaw of Laxmi was present from the side of
her
in-laws.
After
the
post-mortem,
neighbour of the informant, namely, Lal
Ram and son of her brother-in-law (Jeth)
along with his family requested the fatherin-law of Laxmi to cremate her body after
her mother would come but he refused to
do the same. After some time, other people
came from the side of Laxmi in-laws, who
forcefully took her daughter's dead body by
a Tempo. Thereafter the family members of
the informant came directly to her village
and after coming there, they called her
from her second daughter in-laws' place
and disclosed the entire incident to her.
Then the informant has come to lodge the
report. It is further alleged that the in-laws
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
of her daughter Laxmi have not even
allowed her to see her daughter's dead
body. All the people of the daughter in-laws
have locked their house and fled. The
informant has also came to know that the
statement of her daughter Laxmi was
recorded
in
the
hospital. After
the
daughter's marriage, it was revealed that the
accused-appellant Shishupal had secretly
married with another girl. In the murder of
her daughter, all the above accused have
conspired and killed her for the sake of
dowry. It is further alleged that since the
informant/P.W. -1 was helpless, she could
not fulfil the demand of motorcyle of her
in-laws and that's why all of them have
burnt her daughter to death. On reaching
the spot, the informant was informed by the
neighbours of her daughter's in-laws that
all the above accused were beating her
daughter and after holding her by the other
accused, the accused-appellant Shishupala
had poured kerosene oil and set her on fire.
25 years ago the husband of the informant
had died and thereafter somehow she
solemnized the marriage of their daughters
after giving dowries.

4. On the basis of the written report of
informant/P.W.-1, F.I.R. was lodged at
Police Station Bewar, District Mainpuri on
the same day i.e. 3rd March, 2006 at 15:30
o'clock against the accused persons,
namely,
accused-appellant
Shishupal,
Ganga Devi, Gyanpal, Subedar, Grish
Chandra
and
Kishanpal
and
the
investigation
was
carried
out.
On
investigation being put into motion, the
Police recorded the statements of the
witnesses
and
completed
necessary
formalities. On 3rd March, 2006, P.W.-7 the
then Tehsildar Asha Ram under the order of
the Sub-Divisional Magistrate Mainpuri,
got the inquest of the body of the deceased
Laxmi conducted at District Hospital,
Mainpuri by the Police and also got the
inquest report prepared (Exhibit-ka/8). He
also appointed inquest witnesses. He also
got the necessary papers prepared like
police papers, letter to R.I., letter to
C.M.O., Photo lash, chalan lash (Exhibitka/9 to Exhibit-ka/12). P.W.-7 also got the
body of the deceased sealed and sent for
post-mortem.

5. The post-mortem of the dead body
of deceased Laxmi was conducted by Dr.
K.C. Bhardwaj (P.W.-2), the then Medical
Officer at District Hospital, Mainpuri on
3rd March, 2006 at 03:45 p.m. The
postmortem report Exh. Ka-2 was prepared
and in the opinion of the Autopsy Surgeon
(P.W.-2), the death of the deceased Laxmi
was due to shock as a result of following
ante-mortem
superficial
burn
deep
injuries:-

"1. Superficial to deep burn all over
the body except ante side abdomen and
perineum and top of head, skin pulled off
places, whole body blackening present and
smell of kerosene oil present at places, line
of redness present at places. "

6. After sustaining burn injuries, the
deceased was admitted District Hospital,
Mainpuri where Doctor U.C. Chaturvedi
(P.W.-8) medically treated the deceased
Laxmi. During her treatment, on 2nd March,
2006 at 02:05 p.m. the dying declaration of the
deceased Laxmi (Exhibit-ka/5) was recorded
by the Naib Tehsildar, Mainpuri (P.W.-5) after
taking fitness certificate from the Doctor of
E.M.O. District Hospital, Mainpuri i.e. (P.W.-
8). The dying declaration of the deceased
Laxmi is extracted herein-below:

"प्रमाजणत जकया जाता है जक श्रीमती लक्ष्मी देवी W/o
श्री जशशुपाल जसंह जनवासी भािती जवद्या मजन्दि बेवि अपना
व्यान दे ! जलये आपने पूिे होश में है।
5 All. Shishupal Singh Vs. State of U.P.
1023

हस्ताक्षि

2.3.06

2-05 PM

मृत्यु पूवष व्याि

आज स्दिाुंक 2-3-06 को समय 2:05 PM पर
लक्ष्मी देवी W/o श्री स्शशुपाल स्सुंह स्िवासी भारिी स्वद्या
मस्न्दर बेवर िािा बेवर उम्र लगभग 25 वर्ष िे व्याि स्कया स्क
मैं उपरोक्त पिे की स्िवासी ह ूँ। मुझे आज सुबह िीि - चार बजे
मुझे मारा िा ििा मेरे ऊपर पउआ में रखा स्मट्टी िेल डाल
स्दया और मास्चस से आग लगा दी। आग से मेरा पूरा शरीर
जगह - जगह जला है। मेरी शादी चार साल पूवष हुई िी, मेरे
कोई बच्चा िहीं है। दूसरी लड़की (पत्िी) के पीछे मुझे जलाया
है। और स्कसी व्यस्क्त िे मुझे िहीं जलाया है। इस घटिा में
केवल मेरे पस्ि का हाि है। मेरे सास-सुसर हैं। इन्होंिे ही
अथपिाल में भिी कराया है। मेरा पस्ि राि को ही भाग गया।
वह साि िहीं आये मेरे जेठ, िन्दोई और ससुर अथपिाल में
आये हैं। इिमें से स्कसी का कोई दोर् िहीं है। यह कारिामा मेरे
पस्ि का ही है। मैंिे होश में ब्याि स्दया है। मुझे और कुछ िहीं
कहिा। आग मैंिे खुद िहीं लगायी है। ब्याि सुिकर िथदीक
स्कया।

जन0अ0 लक्ष्मी देवी

हस्ताक्षि

02.3.06

ना0 तहसीलदाि मैनपुिी

2:20 PM

प्रमाजणत जकया जाता है जक श्रीमती लक्ष्मी देवी W/o श्री
जशशुपाल जसंह अपना ब्यान देने के बाद तक पुिे होश में िही

हस्ताक्षि

2-3-06

2:23 PM

E.M.O.

D.H. Mainpuri"

7.

Initially,
the
investigation
was
conducted by Circle Officer, Karhal,
namely,
Ram
Chandra
Guha
(not
produced)and thereafter the investigation
has been conducted by Circle Offier
Shravan Kumar Singh (P.W.-6). After
perusal of the investigation conducted by
Ram Chandra Guha, he made entry in G.D.
of inquest and thereafter recorded the
statements of P.W.-2 Dr. K.C. Bhardwaj
and P.W.-8 Dr.U.C. Chaturvedi. After that
P.W.-6 has recorded the statements of
witnesses and made entry in G.D. of dying
declaration of the deceased Laxmi after
obtaining permission from the C.J.M. On
23rd March,
2006
he
recorded
the
statements of informant Vidya Devi and
other witnesses. After conclusion of the
statutory investigation under Chapter-XII
Cr.P.C. P.W.-6 has submitted the chargesheet
against
the
accused-appellant
Shishupal under Section 498-A, 304-B
I.P.C.
and
Sections
3/4
D.P.
Act,
exonerating the other accused named in the
F.I.R. before the Court of concerned
Magistrate, who took cognizance thereon
and the case was committed to the court of
Sessions as the offence alleged to have
been committed were triable by the
Sessions Court. Initially on 17th July, 2007
the accused-appellant has been charged
under Sections 498-A, 304 B I.P.C. and
Section 4 D.P. Act but subsequently on 18th
June, 2007, he has been charged under
Sections 498-A I.P.C. 304-B and 302 I.P.C.
and Section 4 D.P. Act.

8. The charges were read out to the
accused-appellant,
who
denied
the
accusation and demanded trial.

9.
 The
trial
started
and
the
prosecution has examined seven witnesses,
who are as follows:-

1
Vidya
Devi,
informant/the
complainant, mother of the
deceased.
PW1
2
Dr.
K.C.
Bhardwaj,
who
conducted the autopsy of the
body of the deceased
PW2
3
Ramendra Singh, Constable
Clerk, who prepared the chik
PW3
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
FIR and proved the same
4
Amar Singh, cousin brother of
the deceased
PW4
5
Laxmi Narain, then Naib
Tehsildar, who recorded the
dying
declaration
of
the
deceased Laxmi at District
Hospital,
Mainpuri(Investigating
Officer)
PW5
6
Circle Officer Shravan Kumar
Singh, Investigating Officer
PW6
7
Asha Ram, the then Tehsildar,
who got conducted the inquest
of the body of the deceased at
District Hospital, Mainpuri
PW7
8
Dr. U.C. Chaturvedi, who
medically treated the deceased
at District Hospital, Mainpuri
and
gave
medical
fitness
certificate of the deceased
before recording her dying
declaration
PW8

10. The defence has also adduced
Subedar
Singh,
father-in-law
of
the
deceased as D.W.-1 and also named in the
FIR but subsequently, his name was
exonerated by the Investigating Officer in
the charge-sheet. This witness has also
informed the Police about the incident of
burning occurred with her daughter-in-law
i.e. the deceased .

11. The prosecution in order to
establish the charges leveled against the
accused-appellant
has
relied
upon
following documentary evidence, which
were duly proved and consequently marked
as Exhibits:

1
First
Information
Report Ex.Ka
dated 4th March, 2003
.-3
2
Written report dated 4th
March, 2003
Ex.Ka
.-1
3
Memo of dying declaration
of the deceased dated 2nd
March, 2003
Ex.
Ka.-5
4
Application
of
Budear
Singh (D.W.-1)
Ex.Kh
a.-1
5
Post-mortem report of the
deceased dated 3rd March,
2003
Ex.Ka
.-2
6
Site plan with index dated
4th March, 2003
Ex.
Ka.-7
7
Charge-sheet
Ex.
Ka.-6

12. The accused in his statement
recorded under Section 313 Cr.P.C. has
denied to have committed the alleged
offence. Though he has accepted his
marriage with the deceased 4 years ago but
he has denied that he had demanded any
motorcycle as dowry and because of nonfulfilment of said demand, he has beaten
and tortured her. He has also denied that he
killed the deceased by pouring kerosene oil
and set her on fire. He has also stated that
false report has been lodged at Police
Station against him and after preparing
false site plan, charge-sheet was submitted
before the court concerned against him. He
has further stated that the witnesses have
given false statements against him. He has
again stated that in P.A.C. Etah, a
departmental proceedings were going on
against him to having second wife apart
from first wife and the statement given by
the deceased Laxmi Devi against him in the
said proceedings was altered by the people
of his department due to which she was
annoyed and she committed suicide by
setting her on fire. He has also stated that at
5 All. Shishupal Singh Vs. State of U.P.
1025
the time of incident, he was at his home for
which he had to give evidence later.

13. The trial court on the basis of
evidence so led by the prosecution has
found the guilt of the accused-appellant to
have been proved beyond reasonable doubt.
The trial Court has found the witnesses to
be reliable and the dying declaration has
also been found credible and reliable which
formed the basis for conviction of the
accused. Accordingly, the trial court has
held that, accused-appellant Shishupal
Singh is liable to be acquitted for the
offence under Sections 498A, 304B IPC
and Section 3/4 Dowry Prohibition Act and
is liable to be convicted/punished under
Section 302 I.P.C. It is against this
judgment that the present appeal has been
preferred
by
the
accused-appellant
Shishupal.

14. The submission made by the
counsel for the accused appellant is that the
informant is the mother of the deceased and
was inimical to the accused. In the
statement recorded under Section 313
Cr.P.C., the accused-appellant has stated
that he has not committed any offence. It is
further submitted that in the statement
under Section 313 Cr.P.C. the accusedappellant has stated that in P.A.C. Etah, a
departmental proceedings were going on
against him to having second wife apart
from first wife and the statement given by
the deceased Laxmi Devi against him in the
said proceedings, got altered by the people
of his department due to which she was
annoyed and she committed suicide by
setting her on fire. He further submits that
the dying declaration is not reliable in the
facts of the present case since the deceased
was not in a position to give any statement.
He next submits that no satisfaction is
recorded by the Doctor about the deceased
being in a fit mental state to give her
statement. He also submits that the
condition of the victim was critical and her
trachea was blocked for which operation
was proposed and, therefore, the victim
otherwise was not in a position to speak or
to get her dying declaration recorded.

15. Learned counsel, therefore,
submits that this is a case of suicide not
homicidal, as the deceased being a shot
temper lady and she had not borne any
child for four years during the marital life,
she committed suicide by pouring kerosene
oil on herself and set her on fire and the
family members of the deceased have taken
advantage of it to falsely implicate the
accused and thereby settle their goal in
garbing money from the accused-appellant.
It is urged that the evidence on record has
not been examined in correct perspective
by the trial Court. It is also urged on behalf
of the accused-appellant that the FIR is
delay of two days which was lodged, as an
after-thought for falsely implicating the
accused-appellants on the basis of which
the accused-appellant have been convicted.

16. Learned counsel for the State has
submitted that there is no reason for false
implication of the accused and the
complainant had no motive to falsely
implicate the accused. There is clinching
evidence to support the prosecution's case;
there is dying declaration of the deceased
and the statements given by the deceased
therein have been supported by the
prosecution witnesses including P.W.-1,
P.W.4, independent prosecution witness
P.W.3; the prosecution version has also
been supported by the medical evidence;
the place of occurrence has not been
disputed by the defence; and the accusedappellant has strong motive or intention as
he had second wife and the same has also
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
been
explained
by
the
evidence
of
prosecution. Therefore, the prosecution has
proved the charge levelled against the
accused-appellant
beyond
reasonable
doubt. Evidence of prosecution witnesses
will not permit this Court to show any
leniency in the matter.

17. On the cumulative strength of the
aforesaid submissions, learned A.G.A.
submits that as this is a case of direct
evidence, the impugned judgment and
order of conviction does not suffer from
any illegality and infirmity so as to warrant
any interference by this Court. As such the
present jail appeal filed by the accused
appellants who committed heinous crime
by murdering the deceased is liable to be
dismissed.
18. We have considered the submissions
made by the learned counsel for the parties
and have carefully examined the original
records of the case as well as the impugned
judgment
and
order
of
conviction
challenged before us.

19. We are in full agreement with the
findings recorded by the trial court after
relying upon the statements of P.W.-5,
P.W.-8 and the dying declaration of the
deceased itself that the circumstances in
which the dying declaration of the deceased
Lakshmidevi has been recorded by P.W.5 is
quite natural, which makes it clear that the
deceased Lakshmidevi was in her senses
and in full consciousness while making the
dying declaration. The dying declaration
has been made of her own free will. He has
further recorded that there was no scope for
any pressure and manipulation because the
dying
declaration
was
made
by
Lakshmidevi before her death, wherein she
has only taken the name of her husband i.e.
accused-appellant Shishupal Singh and she
has told that her husband had beaten her
first at 3 to 4 o'clock in the night, then
poured kerosene oil on her and set her on
fire with matches. The trial court has also
recorded that in the dying declaration the
deceased Lakshmidevi has stated that her
whole body was burnt due to fire at several
places. Her marriage was solemnized 4
years ago of the incident. She did not have
any child. Due to his second wife, the
accused-appellant Shishupal had set the
deceased on fire and no other in-laws has
set her on fire. The deceased has further
stated in her dying declaration that in this
incident her husband is only responsible.
Her mother-in-law and father-in-law were
there, who admitted her to the hospital. Her
husband escaped in the night itself. He
didn't come along with them. She has also
stated
that
her
brother-in-law
(Jeth),
Nandoi, father-in-law had come to the
hospital. There is no fault of anyone in this
incident. This feat is of her husband only.
The deceased made her statement in her
senses. Apart from the above, she had
nothing to tell. She has also stated that she
did not set herself on fire.

20. On the basis of the aforesaid
statement of the deceased in her dying
declaration, the trial court has opined that
on seriously reviewing the said dying
declaration of deceased Lakshmidevi, it is
found to be creditworthy that if the
deceased wanted, she could have taken the
name of all family members of in-laws in
her dying declaration as well, but she has
told the name of her husband, who poured
kerosene oil on her and set her on fire with
matches. Apart from this, it is also very
important that the dying declaration made
by the deceased Lakshmidevi was not
given due to any pressure or any other
reason
because
when
the
deceased
Laxmidevi was admitted to the District
Hospital in a burnt condition, at that point
5 All. Shishupal Singh Vs. State of U.P.
1027
of time no member of her family i.e. her
mother and any other person were present
and those who were present there in the
hospital to take care of her was her in-laws
only. Under these circumstances, the trial
court has opined that there is valid reason
to consider the verbal declaration of death
made by the deceased. The trial court has
also recorded that it is also clear from the
dying declaration of Lakshmidevi that her
husband Shishupal Singh was married to
another woman and had a child from the
said wedlock. This fact is undisputed
because the defence witness (D.W.-1) i.e.
her father-in-law has himself accepted this
fact in his testimony. This statement of the
deceased that her husband was already
married has also been supported by her
widow mother i.e. P.W.1/informant and her
cousin brother (P.W.-4) in their testimony.
Thus, on the basis of dying declaration of
the deceased and statements of the
prosecution witnesses i.e. P.W.-1, P.W.4,
P.W.-5 and P.W.-8 and the evidence on
record, the trial court has come to the
conclusion
that
the
prosecution
has
succeeded to prove the guilt of the accusedappellant that due to his second wife the
accused-appellant used to beat and harass
the deceased before the incident and after
that he poured kerosene oil on her and set
her on fire and the said criminal act of
accused Shishupal Singh comes under the
category of murder. On the basis of such
finding, the trial court has come to the
conclusion that this is not a case of murder
of dowry, but is a direct murder case, which
the prosecution has successful proved.

21. While considering the evidence of
P.W.1 to P.W.8 in cumulative nature, the
death can be said to be homicidal death.
Postmortem report goes to show that the
superficial deep burn injuries on the body
of the deceased would be the cause of death
and that it was homicidal death. There is
also dying declaration which was given by
the deceased in her senses and not under
any pressure as is evident from the
statements of independent prosecution
witnesses i.e. P.W.-5, who recorded the
dying declaration after taking medical
fitness certificate from P.W.-8, who was
medically treating the deceased when she
was admitted in the hospital and was alive.
It is settled law that the dying declaration
made by a person on the verge of his/her
death has a special sanctity as at that
solemn moment a person is unlikely to
make any untrue statement.

22. In the case of Bijoy Das Versus
State of West Bengal reported in (2008) 4
SCC 511, wherein in paragraph-11, the
Apex Court has held as follows:

"11. As observed by this Court in
Narain Singh v. State of Haryana AIR vide
para 7: (SCC p. 267, para 7) A dying
declaration made by a person on the verge
of his death has a special sanctity as at that
solemn moment a person is most unlikely to
make any untrue statement. The shadow of
impending death is by itself guarantee of
the truth of the statement of the deceased
regarding the circumstances leading to his
death. But at the same time the dying
declaration like any other evidence has to
be tested on the touchstone of credibility to
be acceptable. It is more so, as the accused
does not get an opportunity of questioning
veracity of
the statement by crossexamination. The dying declaration if
found reliable can form the base of
conviction.

8. In Babulal v. State of M.P. (2003
(12) SCC 490) this Court observed vide in
para 7 of the said decision as under: (SCC
p.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

494)
A
person
who
is
facing
imminent death, with even a shadow of
continuing in this world practically nonexistent, every motive of falsehood is
obliterated. The mind gets altered by most
powerful ethical reasons to speak only the
truth. Great solemnity and sanctity is
attached to the words of a dying person
because a person on t as she had not
borne any child for four years during the
marital life he verge of death is not likely
to tell lies or to concoct a case so as to
implicate an innocent person. The maxim
is a man will not meet his Maker with a lie
in
his
mouth
(nemo
moriturus
praesumitur mentiri). Mathew Arnold
said, truth sits on the lips of a dying man.
The general principle on which the
species of evidence is admitted is that they
are declarations 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 mind induced by the most powerful
consideration to speak the truth; situation
so solemn that law considers the same as
creating an obligation equal to that which
is imposed by a positive oath administered
in a court of justice.

9. In Ravi v. State of T.N. ((2004 (10)
SCC 776) this Court observed that: (SCC
p. 777, para 3) If the truthfulness of the
dying declaration cannot be doubted, the
same alone can form the basis of
conviction of an accused and the same
does not require any corroboration,
whatsoever, in law."

 (Emphasis supplied by us)

23. The death occurred because of the
ante-mortem burn injuries. Learned counsel
for the appellant has not been able to
establish that the dying declaration is not
natural dying declaration we concur with
the learned Judge that the deceased died out
of ante-mortem burn injuries. The contours
for accepting the dying declaration are
fulfilled in the facts of the case, therefore,
we conclude that it was a homicidal death.
The next question is whether the accused
was the sole perpetrator of the offence. The
dying declaration, which we have held to
be
fulfilled
on
contours
of
dying
declaration goes to show that the deceased
was in a full consciousness and has named
only her husband and no other in-laws have
been named in the dying declaration. The
cause of the incident was that as she had
not borne any child for four years during
the marital life and that the appellant had
some illicit relations prior to the marriage
that was the cause behind killing the
deceased by the accused-appellant.

24. Therefore, on totality of the facts
and circumstances and the oral testimony
of the prosecution witnesses specifically
the dying declaration of the deceased
coupled with the medical evidence, we find
that the judgment and order impugned
passed by the trial court in convicting the
accused-appellant under Section 302 I.P.C.
and sentenced him to life imprisonment
with fine of Rs, 5,000/- cannot be said to be
illegal or perverse.

25. However, considering the total
period of incarceration undergone by the
accused-appellant i.e. more than 15 years is
just and proper. In the case of Vikash
Yadav Vs. State of Uttar Pradesh &
Others reported in (2016) 9 SCC 541, the
Apex Court has opined that there was lack
of uniformity in award of death sentences
and life convicts got released after 14 years
due to remission provisions mentioned in
the Code of Criminal Procedure. Fixed
term non-remittable imprisonment beyond
14 years barred the statutory remission (not
constitutional remission under Articles 71
5 All. Shishupal Singh Vs. State of U.P.
1029
and
161.
Fixed
term
non-remittable
sentence came to rescue of court when
death sentence fell short of rare-rest of rare
category and court felt reluctant to endorse
death sentence. Therefore, there is no bar to
fix
non-remittable
term
beyond
the
minimum of 14 years up to the end of one's
life.

26. The relevant portion of the
judgment of the Apex Court in the case of
Vikash Yadav is read as under:

"To elaborate, though the power
exercised under Article 71 and Article 161
of the Constitution is amenable to judicial
review in a limited sense, yet the Court
cannot exercise such power. As far as the
statutory power under Section 433-A is
concerned, it can be curtailed when the
Court is of the considered opinion that the
fact situation deserves a sentence of
incarceration which be for a fixed term so
that power of remission is not exercised.
There are many an authority to support that
there is imposition of fixed term sentence to
curtail the power of remission and scuttle
the
application
for
consideration
of
remission by the convict. It is because in a
particular fact situation, it becomes a
penological necessity which is permissible
within the concept of maximum and the
minimum. There is no dispute over the
maximum,
that
is,
death
sentence.
However, as far as minimum is concerned
the submission of the learned counsel for
the
appellants
is
courts
can
say
"imprisonment for life" and nothing else.
It cannot be kept in such a strait-jacket
formula. The court, as in the case at
hand, when dealing with an appeal for
enhancement
of
sentence
from
imprisonment of life to death, can
definitely say that the convict shall suffer
actual incarceration for a specific period.
It is within the domain of judiciary and
such an interpretation is permissible. Be
it noted, the Court cannot grant a lesser
punishment than the minimum but can
impose a punishment which is lesser than
the maximum. It is within the domain of
sentencing
and
constitutionally
permissible."

27. The accused has been in jail for
more than 15 years, he has already
undergone sufficient incarceration for the
incident occurred in 02.03.2006. We
therefore, apply the fix term sentencing
policy of 14 years at par with the
judgment of the Apex Court in the case of
Vikas
Yadav
(Supra).
Accordingly,
accused-appellant is liable to be released
from jail.

28. The accused-appellant, namely,
Sheeshu Pal Singh, who is reported to be
in jail since 2007 shall be released on
compliance of Section 437-A Cr.P.C.,
unless he is wanted in any other case
forthwith.

29. This appeal stands disposed off
subject to the observations/directions
made herein above.

30. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Mainpuri henceforth, who shall transmit
the
same
to
the
concerned
Jail
Superintendent
for
release
of
the
accused-appellants in terms of this
judgment.

31. Sri Shashi Shekhar Mishra,
learned Amicus Curiae for the sole
appellant has ably assisted this Court and
would be entitled to his fee for a sum of Rs.
15,000/- from the High Court Legal
Services Authority.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 1030
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.05.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 1103 of 2019

Aman @ Monu ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Lalu Prasad Bhatt, Ashok Kumar Shukla, Dinesh
Chandra Tewari, Lalu Prasad Bhatt, Rakesh
Kumar Tripathi

Counsel for the Opp. Party:
Govt. Advocate, Manoj Kumar Singh

Criminal Law - Juvenile Justice (Care &
Protection of Children) Act, 2015 - Section
94 - Indian Penal Code, 1860 - Sections
363, 366, 376, 328, 506 & 120B -
Protection
of
Children
from
Sexual
Offence
Act,
2012
-
Section
3⁄4
-
Determination
of
age
after
attaining
majority
-
Reliability
of
St.ment
of
prosecution witness - Appellate Court
concluded that there was conflict in date
of
birth
of
revisionist,
directed
for
radiological age - Finding of Juvenile
Justice Board was based on family register
and St.ment of PW-2, in which she St.d
revisionist never got admission in Gaytri
Shishu Mandir - The St.ment of PW-1 was
based on basis of T.C. of said school -
According to St.ment of CW-1 and CW-2,
supported the family register, the date of
birth of revisionist was 6.3.2003 - Proper
inquiry has been done by Juvenile Justice
Board, rightly concluded that date of birth
of revisionist was 6.3.2003 - If St.ment of
PW-1
was
accepted,
then
age
of
revisionist was 23 years - Impugned order
set aside (Para 9, 10, 14)

Criminal Revision allowed. (E-13)
List of Cases cited:

1. Ashwani Kumar Saxena Vs St. of M.P. (2012)
9 SCC 750, (Para 34, 35 , 43)

2. Mukarrab Etc Vs St. Of U.P (Criminal Appeal
Nos. 1119-1120 of 2016, decided on 30
November, 2016), (Para 17, 18, 19, 22, 27)

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. On 11.5.2023, following order was
passed by this Court:

"1. Heard learned counsel for the
parties.

2. This criminal revision U/s 102 of
the Juvenile Justice (Care & Protection of
Children) Act, 2015 has been against the
order dated 31.7.2019 passed by the
Special Judge (POCSO Act)/8th Additional
District & Sessions Judge, Bahraich in
Criminal Appeal No. 08/2019, U/s 101 of
the Juvenile Justice (Care & Protection of
Children) Act,
2015,
Police
Station-
Dargah Sareef, District- Bahraich whereby
the appeal filed by the respondent no.2 has
been allowed and order dated 6.3.2019
passed by Juvenile Justice Board has been
quashed in case no. 70/12/2018 vide case
crime
no.
48/2018,
U/s
363,366,376,328,506,120B
IPC
and
Section 3/4 of the Protection of Children
from Sexual Offence Act, Police Station-
Dargah Sareef, District- Bahraich.

3. Learned counsel for the revisionist
submitted that the revisionist conflict with
law is juvenile. In this matter, the alleged
date of mentioned in the FIR as 26.2.2018.
The Juvenile Justice Board arrived at a
conclusion that as per the educational
certificate of Class V marks sheet, scholar
register and transfer certificate form, the
date of birth of the revisionist is 6.3.2003.
Thus the age of the revisionist on the