# Smt. Gangotri v. State of U.P

- **Citation:** (2024) 1 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Criminal Appeal No. 2109 of 2022
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gangotri-v-state-of-u-p-50921
- **Pages:** 22

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 307/34 - Indian
Evidence Act, 1872 - Section 32(1) - Code
of Criminal Procedure, 1973 - Sections
161 & 313 - Appellants challenged conviction
under Sections 302/34 and 307/34 I.P.C. for
murder of Suman and attempt to murder Kamla.
Court held: (1) St.ment of Kamla recorded
368 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 161 Cr.P.C. was not admissible as
dying declaration under Section 32(1) of
Evidence Act for charge under Section 307
I.P.C., as her death was not in issue (Indrapal Vs
St. of M.P., (2001) 10 SCC 76). (2) Kamla's
St.ment was inadmissible for charge under
Section 302 I.P.C. regarding Suman's death,
as it did not relate to cause or circumstances
of Kamla's death (In re Peria Chelliah Nadar,
AIR 1942 Mad 450). (3) Failure to confront
appellants
with
Kamla's
St.ment
during
examination under Section 313 Cr.P.C. vitiated
trial, causing prejudice and violating natural
justice (Sharad Birdhichand Sarda Vs St. of
Mah., AIR 1984 SC 1622). (4) Prosecution
witnesses (PW-1, PW-2, PW-3, PW-4) did not
implicate appellants; PW-4 was hostile, and
no
eye-witness
account
supported
involvement. (5) No corroborative evidence or
dying declaration linked appellants to the
crime; conviction based on inadmissible
St.ment was unsustainable (Sukhar Vs St. of
U.P., (1999) 9 SCC 507). Judgment of
conviction set aside; appellants acquitted.
(Paras 21-57)

Criminal Appeals Allowed.

List of Cases cited:

## Text

_Characters 0–39,851 of 71,277. This is a partial read: ask again with offset=39851 for what follows._

1 All. Smt. Gangotri Vs. State of U.P.
367
hours before the information was given to
the police. The possibility of deliberation
and consultation having preceded the
lodging of police report is a distinct
possibility. We are amused at the manner in
which the investigation has proceeded and
material facts have been withheld. In the
facts of the case, the failure on part of the
prosecution to explain the genesis of the
incident coupled with the strong possibility
of deliberation and consultation having
preceded the making of written report,
followed by complete absence of motive on
part of the accused persuade us to
disbelieve the testimony of child witness in
the facts and circumstances of the present
case. Though the incident is gruesome in
which four persons have lost their lives but
that in itself would not persuade us to
punish the accused against whom evidence
is lacking and is not reliable.

27. In view of the deliberations held
above, we do not subscribe to the view
taken by the trial court that the prosecution
has succeeded in establishing its case
beyond reasonable doubt against the
accused appellant. The accused appellant is
clearly entitled to benefit of doubt.
Reference made under Section 366 Cr.P.C.
is, therefore, answered by holding that the
accused appellant is not found guilty and
consequently, the death penalty awarded to
him stands reversed. The criminal appeal
filed by the accused appellant to that extent
succeeds and is allowed.

28. We find absolutely no good
ground to interfere with the view taken by
the trial court for acquitting the accused
Smt. Deva and Sri Devi Deen @ Bhawani
Deen Yadav as the findings returned by the
court below to discard the testimony of
PW-2 is found to be based upon correct
appraisal of the evidence on record.
Accordingly, the Criminal Appeal u/s 372
Cr.P.C. No.21 of 2021 filed by informant
Raghunandan is rejected.

29. At the end, we record our
appreciation
for
the
able
assistance
rendered to the Court by Sri Gajendra
Pratap, learned Senior counsel, who has
acted pro bono as Amicus Curiae and Smt.
Abhilasha Singh who has assisted learned
Senior counsel in the present case and
highlighted evidence, meticulously, for us
to come to our conclusion. Smt. Abhilasha
Singh will be entitled to her fees quantified
at Rs.15,000/- from the High Court Legal
Services Authority.
----------
(2024) 1 ILRA 367
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 2109 of 2022
with
Criminal Appeal No. 2110 of 2016

Smt. Gangotri ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Prakash Chandra Srivastav

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 307/34 - Indian
Evidence Act, 1872 - Section 32(1) - Code
of Criminal Procedure, 1973 - Sections
161 & 313 - Appellants challenged conviction
under Sections 302/34 and 307/34 I.P.C. for
murder of Suman and attempt to murder Kamla.
Court held: (1) St.ment of Kamla recorded
368 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 161 Cr.P.C. was not admissible as
dying declaration under Section 32(1) of
Evidence Act for charge under Section 307
I.P.C., as her death was not in issue (Indrapal Vs
St. of M.P., (2001) 10 SCC 76). (2) Kamla's
St.ment was inadmissible for charge under
Section 302 I.P.C. regarding Suman's death,
as it did not relate to cause or circumstances
of Kamla's death (In re Peria Chelliah Nadar,
AIR 1942 Mad 450). (3) Failure to confront
appellants
with
Kamla's
St.ment
during
examination under Section 313 Cr.P.C. vitiated
trial, causing prejudice and violating natural
justice (Sharad Birdhichand Sarda Vs St. of
Mah., AIR 1984 SC 1622). (4) Prosecution
witnesses (PW-1, PW-2, PW-3, PW-4) did not
implicate appellants; PW-4 was hostile, and
no
eye-witness
account
supported
involvement. (5) No corroborative evidence or
dying declaration linked appellants to the
crime; conviction based on inadmissible
St.ment was unsustainable (Sukhar Vs St. of
U.P., (1999) 9 SCC 507). Judgment of
conviction set aside; appellants acquitted.
(Paras 21-57)

Criminal Appeals Allowed.

List of Cases cited:

1. Indrapal Vs St. of M.P., (2001) 10 SCC 76
(Para 32)

2. In re Peria Chelliah Nadar, AIR 1942 Mad
450 (Para 38)

3. Lukka Ulahannan Vs Travancore-Cochin St.,
AIR 1955 TRA-C 104 (Para 39)

4. Kunwarpal Singh Vs Emperor, AIR 1948 All
170 (Para 40)

5. Ratan Gond Vs St. of Bihar, AIR 1959 SC 18
(Para 41)

6. Gananath Pattnaik Vs St. of Orissa, (2002)
2 SCC 619 (Para 34)

7. Sharad Birdhichand Sarda Vs St. of Mah.,
AIR 1984 SC 1622 (Para 47)

8. Sujit Biswas Vs St. of Assam, (2013) 12 SCC
406 (Para 48)
9. Asraf Ali Vs St. of Assam, (2008) 16 SCC 328
(Para 50)

10. Shivaji Sahabrao Bobade Vs St. of Mah.,
(1973) 2 SCC 793 (Para 53)

11. Moti Singh Vs St. of U.P., AIR 1964 SC 900
(Para 35)

12. St. of U.P. Vs Shashi Shekhar, 2004 SCC
OnLine All 1822 (Para 33)

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

1. The criminal appeal No. 2109 of
2016 has been filed against the judgment
and order of conviction dated 19.04.2016
passed by District Judge, Rampur in
Sessions Trial No. 525 of 2013 whereby the
learned
District
Judge,
Rampur
has
convicted the accused appellants Smt.
Gangotri Devi and Madan Lal for the
offences punishable under Section 307
I.P.C. read with Section 34 I.P.C. and
sentenced them to ten years rigorous
imprisonment along with a fine of Rs.
5,000/-. In case of default of payment of
fine, the accused appellants had to further
suffer six months additional imprisonment.
They were further convicted under Section
302 read with Section 34 I.P.C. and were
sentenced to life imprisonment and fine of
Rs. 20,000/- each. In case of default in
payment of fine, the accused appellants had
to further undergo additional imprisonment
for a period of two years.

2. Criminal Appeal No. 2110 of 2016
was filed by the appellant Daulat Ram
against the judgment and order dated
19.04.2016 passed by learned District
Judge, Rampur in S.T. No. 42 of 2015
(State v. Daulat Ram) and convicted him
for the offences punishable under Section
307 I.P.C. read with Section 34 I.P.C. and
sentenced him for ten years rigorous
1 All. Smt. Gangotri Vs. State of U.P.
369
imprisonment along with a fine of Rs.
5,000/-. In the case of default, the accused
appellant had to further suffer six months
additional imprisonment. The appellant was
also convicted under Section 302 read with
Section 34 I.P.C. and was sentenced to life
imprisonment with a fine of Rs. 20,000/-.
In case of default in payment of fine, the
accused appellant had to further undergo an
additional imprisonment for a period of two
years.

3. Both the Sessions Trials i.e. S.T.
No. 525 of 2013 and S.T. No. 42 of 2015
arose from the Case Crime No. 217 of 2013
under Section 307, 302 I.P.C. read with
Section 34 of I.P.C., Police Station Milak,
District Rampur. As both the Sessions
Trials arose from the same Crime number
i.e. Case Crime No. 217 of 2013, they were
tried together and decided by a common
judgment and order dated 19.04.2016 by
District Judge, Rampur.

4. The factual matrix of the case is
that the informant namely Prabhu Dayal
S/o Natthu Lal submitted a written
complaint dated 15.05.2013 paper no. 50Ka
(Ex. K-1) on which a First Information
Report paper no. 52Ka (Ex. Ka-3) was
registered in Case Crime No. 217 of 2013,
under Section 307, 302 I.P.C. read with
Section 34 I.P.C., P.S. Milak, District
Rampur.

5. As per the First Information
Report, the informant stated that the
marriage of the informant was settled with
one Kamla D/o Sher Singh. After the
settlement of marriage, father of Kamla
expired. It has been further stated that
mother of Kamla had died earlier and in the
family of Kamla there was a younger sister
named Suman and one elder brother by the
name of Bablu.

6. Rahul s/o Bablu and Smt. Gangotri,
mother of Rahul used to quarrel with
Kamla and Suman for a share in the
property which had come in the share of
Kamla and Suman after the death of their
father. Because of this reason at about
11:00AM
on
15.03.2013,
Rahul
s/o
Gajendra @ Bablu, his mother Smt
Gangotri W/o Gajendra and their relative
Daulat Ram and Madan Lal started quarrel
with Suman and Kamla and Madan Lal and
Daulat Ram exhorted Rahul and Gangotri
to kill Kamla and Suman. Upon this
goading, Rahul shot Suman with a country
made pistol (Tamancha) and thereafter also
tried to kill Kamla. Suman died on the spot
while Kamla was brought to the police
station. On the spot, Harish and many other
villagers were present. The scribe of the
complaint was one Devesh Kumar S/o
Horilal.

7. After the First Information Report
was lodged, the police investigated the
crime and after collecting evidence, a
charge sheet paper no. 53 Ka (Ex. Ka-4)
was submitted under Section 173 (2)
Cr.P.C. against Smt. Gangotri and Madan
Lal. A separate charge sheet (paper no. 66
Ka (Ex. Ka-17) was submitted against
Daulat Ram.

8. The accused Rahul S/o Gajendra
was a minor, therefore the matter proceeded
against Rahul before Juvenile Justice
Board, Rampur.

9. The learned Magistrate after taking
cognizance and after complying with the
provisions
of
Section
207
Cr.P.C.
committed the case for trial to the Court of
Sessions. On 14.09.2015, Smt. Gangotri
and Madan Lal were charged under Section
307 I.P.C. for attempting to murder Kamla,
under Section 302 I.P.C. and for murder of
370 INDIAN LAW REPORTS ALLAHABAD SERIES
Suman under Section 302 I.P.C. read with
Section 34 I.P.C. in Sessions Trial No. 525
of 2013.

10. The learned Magistrate charged
Daulat Ram under Section 307 I.P.C. for
attempting to murder Kamla and under
Section 302 of I.P.C. for the murder of
Suman read with Section 34 I.P.C. in
Sessions Trial No. 42 of 2015 on
14.09.2015.

11. During trial, statements of six
persons namely Prabhu Dayal PW-1, Km.
Usha PW-2, Mansi Devi PW-3, Harpal
Singh @ Harish PW-4, Dr. Sanjeev PW-5
and the Investigating Officer Sunit Kumar
were recorded. Statement of Pankaj Kumar,
S.I. was also recorded as Court Witness no.
1.

12. The prosecution produced written
complaint (Ex. Ka-1), post-mortem report
(Ex. Ka-2) Chik F.I.R. (Ex. Ka-3), Charge
Sheet (Ex. Ka-4), Naksha Nazri site map
(Ex. Ka-5), Medical Report of Kamla
(Injured) (Ex. Ka-6), Fard Mitti (Ex. Ka-7),
Fard Cement (Ex. Ka-8), Fard Khokha (Ex.
Ka-9), Report P.S. Milak (Ex. Ka-10),
Challan lash (Ex. Ka-11), Inquest Report
(Ex. Ka-12), Photo lash (Ex. Ka-13) Letter
S.I. (Ex. Ka-14), Specimen Mohar (C) (Ex.
Ka-15), Nakal G.D. (Ex. Ka-16), Charge
Sheet (Ex. Ka-17) and death report of
Kamla (Ex.-18) as documentary evidence
during trial.

13. Statements of accused were also
recorded under Section 313 Cr.P.C. in
which they denied the incident and claimed
that they had been falsely implicated.

14. Additional statement of accused
were also recorded in which accused Smt.
Gangotri deposed that she was not at home
and had gone to hospital in connection with
the illness of her husband. Accused Madan
Lal has stated that he was in his village
Loha which is at a distance of 15KM from
the place of incidence and the accused
Daulat Ram deposed that he was at his
village Sigra which is 12 KM from the
place of incident.

15. After considering the entire
evidence, learned Sessions Judge, Rampur
convicted accused appellants namely Smt.
Gangotri, Madan Lal and Daulat Ram
under Section 307 read with Section 34
I.P.C. for attempting to murder Kamla and
also sentenced them to undergo rigorous
imprisonment of ten years along with fine
of Rs. 5,000/-. He also convicted the
accused appellants under Section 302
I.P.C. read with Section 34 I.P.C. for
murdering Suman and sentenced them
with imprisonment for life with fine of Rs.
20,000/-.

16. Heard learned counsel for the
appellants and learned A.G.A. for the State
and perused the record.

17. Since both the appeals arise out
of a common judgment dated 19.04.2016,
they are being decided together.

18.

Learned
counsel
for
the
appellants vehemently assailed the order
of conviction and made the following
submissions.

(1) The accused appellants are
innocent and have not committed the
alleged crime. The order of conviction is
passed on conjectures and surmises.

(2) The informant Prabhu Dayal
was not an eye-witness of the incident and
has admitted in his statement that he had
lodged the First Information Report on the
1 All. Smt. Gangotri Vs. State of U.P.
371
basis of information given to him by
Kamla.

(3) It has also been stated in his
cross-examination by PW-1 that neither the
police nor the informant had any talks with
Kamla as she was unconscious.

(4) Kamla was not examined as
witness as she died during the pendency of
the trial. It was further contended that
prosecution had failed to prove the date,
time and cause of death of Kamla. There
was no evidence to the effect that Kamla
died because of injuries sustained in the
alleged incident.

(5) All the other witnesses of fact
produced by the prosecution failed to prove
involvement
of
the
appellants
Smt.
Gangotri Devi, Madan Lal and Daulat Ram
in the crime in question and rather they
have stated that they had not seen the
appellants committing the crime and even
denied their presence at the spot.

(6) PW-2 Usha and PW-3 Mansi
Devi had only given evidence against
Rahul and had not seen Gangotri, Madan
Lal and Daulat Ram and as such there was
no eye witness account against the accused
appellants.

(7) Accused Rahul who was a
minor, his case was not before the trial
court.

(8) PW-4 Harpal was declared
hostile.

(9) The statement of Kamla was
recorded by the investigating officer after
ten days of the incident and there is no
reason
mentioned
for
recording
the
statement after such a delay of the alleged
injured witness.

(10) The
statement
recorded
under Section 161 Cr.P.C. of Kamla, who
died after one year could not be relied upon
as a dying declaration under Section
32(1)of the Evidence Act. The statement of
Kamla recorded under Section 161 Cr.P.C.
was neither signed by Kamla nor was
recorded in presence of any other witness.

(11) The trial court has erred in
law in treating the statement under Section
161 Cr.P.C. as dying declaration under
Section 32(1) of the Evidence Act and there
was no corroboration to the aforesaid
statement of Kamla.

(12) Lastly it was submitted by
the learned counsel for the appellants that
the appellants were not confronted with the
statement of Kamla recorded under Section
161 Cr.P.C. which was treated as a dying
declaration at the time of recording their
statement under Section 313 Cr.P.C and
therefore, the same cannot be relied upon.

19. Per contra, learned A.G.A. for the
State refuted the submissions made by the
learned counsel for the appellants and made
the following submissions:

(1) The trial court has rightly
relied upon the statement of Kamla
recorded under Section 161 Cr.P.C. as
dying declaration.

(2) There is no impediment in
convicting the accused only on the basis of
dying declaration without there being any
corroborative evidence.

(3) The statement of Kamla
recorded under Section 161 Cr.P.C. was
proved
by
Sunit
Kumar.
PW-6
(Investigating Officer) who recorded the
said statement.

(4) PW-6 was an independent
witness and there was no suggestion by the
defence as to why PW-6 will give false
evidence against the accused appellants.

(5) Not putting the question to the
accused appellants with regard to the
statement of deceased Kamla recorded
under
Section
161
Cr.P.C.
during
questioning the accused under Section 313
Cr.P.C. would not vitiate the trial and the
372 INDIAN LAW REPORTS ALLAHABAD SERIES
accused appellants had to establish the
prejudice caused to them and lastly it was
submitted that the trial court rightly passed
the judgment convicting the accused
appellants after considering the entire
evidence and the appeal had no merits and
is liable to be dismissed.

20. With the help of both the
counsels, learned counsel for the appellants
and learned A.G.A. for the State, we have
perused the record of the case.

21. The informant Prabhu Dayal PW1 in his examination-in-chief has stated that
his marriage was settled with Kamla D/o
Sher Singh and after the settlement of
marriage Sher Singh died. After the death
of the father of Kamla her sister Suman,
brother Bablu, nephew Rahul and sister-inlaw Gangotri and three small kids remained
in the family. Rahul S/o Bablu and
Gangotri used to quarrel with Kamla and
Suman regarding his share in the land
which came in the name of Kamla and
Suman after the death of their father Sher
Singh. He has further stated that on
15.05.2013 at about 11:00 AM, there was a
fight between Rahul, Gangotri, Madan Lal
and Daulat Ram with Kamla and Suman.
Daulat Ram and Madan Lal exhorted to kill
them, then Rahul shot Suman and thereafter
Kamla and Suman ran towards the roof to
save their lives. Gangotri caught Kamla's
leg and thereafter Rahul shot Kamla.
Suman thereafter jumped from the roof.
Rahul, Gangotri, Daulat Ram and Madan
Lal shot several fire shots on Suman who
died on the spot. Kamla was injured and
she was taken to the Milak Hospital by the
informant. It has been further stated by
PW-1, who had witnessed the incident that
the incident was not within the knowledge
of the informant. The entire sequence of
events was told to the informant by Kamla.
The informant got the complaint written by
Devesh Kumar and after reading the same
he had put his signatures. It has been
further stated that the written complaint
was filed by the informant in the police
station. In his cross-examination, PW1 has
stated that he had not witnessed the
incident and had also not disclosed in the
F.I.R. about direct knowledge of the
incident. In fact he has stated that he was
informed by Kamla. After hearing the news
of murder, he first went to the Police
Station Milak and informed the police that
some incident had occurred in the village
Bihta and at that point of time, the police
personnel
did
not
lodge
the
First
Information Report. It has been further
stated by the informant that the informant
reached police station Milak at around 11:
1⁄2, 11: 3⁄4 hours and it took him 10-15
minutes at the police station. It has been
further stated that the police personnel
accompanied the informant to village
Bihta. At the house of Sher Singh,
informant met uncle of Kamla namely
Sompal but it was further stated that he did
not have conversation with Sompal. When
police personnel reached Sher Singh's
house, Kamla was lying on the zina (stairs).
It was also stated by the informant that
police personnel did not have talks with
Kamla and the police personnel did not ask
Kamla regarding her injuries. Also no
enquiry was made as to who had assaulted
her. Kamla was unconscious at that point of
time therefore, neither, the police personnel
nor the informant had conversation with
Kamla. It was further stated by the
informant that in the First Information
Report, he had mentioned the name of
Harish as witness as there was no other
witness. It was still further stated that the
informant had taken the injured Kamla in a
police vehicle along with two constables to
the hospital. It was also stated by the
1 All. Smt. Gangotri Vs. State of U.P.
373
informant that when he reached the hospital
at Milak, doctor said after examining the
injured Kamla that there was excessive
bleeding and also advised him to take her
to Bareilly. Thereafter the informant got the
written complaint drafted by Devesh
Kumar and had given the same in the
police station. It was further stated that at
about 01:00 PM or some time after 01:00
PM he had taken Kamla to Bareilly and had
admitted her in a Hospital. After admitting
Kamla it was stated by the informant that
he remained with Kamla and only after
being called by the inspector came to the
police station after 2-3 days. It was further
stated by the informant in his crossexamination that he had gone from Bihta to
hospital and had not gone to the police
station along with Kamla. It was further
stated that when the police had taken
statement of Kamla at Bareilly, informant
was not present as he was removed from
there. It has also been stated that he had not
mentioned in the F.I.R. that he had come
along with Kamla to the police station and
he states that how reverse facts had been
stated in the First Information Report, he
could not say. It had also been stated by the
PW1 that he had not gone to the police
station on the date of incident.

22.

PW2
Km.
Usha
in
her
examination-in-chief has stated that on
15.05.2013 she along with her sister-in-law
Mansi was at her house and his brother
Harish was not there at the house and came
later on after hearing the news. It was
stated by PW-2 that at about 11:00AM, she
heard the sound of fire and the younger
daughter of master Sher Singh came to her
house running and thereafter Rahul came
with a Tamancha (Pistol) in his hand and
shot Suman twice. It has been further stated
that Gangotri Devi, Daulat Ram and Madan
Lal did not come to her house nor she had
seen them there.

23. PW-3 Mansi Devi in her
examination-in-chief has stated that at
about 11:00AM, on 15.05.2013, she was in
the verandah of her house and her sister in
law was reading in the verandah. It has
been further stated that her husband Harish
was not present in the house. It was also
stated by PW-3 that she heard sounds of
two fire shots from the neighbouring area.
It was further stated that the younger
daughter of Sher Singh Suman came
running in an injured condition and fell
down near the tap. Rahul came with a
tamancha (pistol) in his hand and had shot
Suman and thereafter had repeating the
shooting and then had ran away. It has been
further stated by PW-3 that Gangotri Devi,
Madan Lal and Daulat Ram did not come
to her house nor she had witnessed them
there. It was further stated in her crossexamination that Kamla, Gangotri and
Prabhu Dayal did not come with police to
her house.

24. PW-4 Harpal @ Harish has stated
in
his
examination-in-chief
that
on
15.05.2013, he has gone to Karkheda in
connection with the work of the company
and his wife Mansi and sister Usha were
present in the house. It was further stated
that his house is neighbouring the house of
Sher Singh. The daughter of Sher Singh did
not come to his house in his presence as he
was not there at the time of incident. He
has not seen Rahul firing on Suman. It has
been further stated that he has not
witnessed Gangotri Devi, Madan Lal and
Daulat Ram coming to his house. PW-4
was declared hostile by the prosecution. It
has been stated by the PW4 in her crossexamination that he has not heard any
374 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute between Kamla and Suman with
Gangotri and Rahul.

25. PW-5 Dr. Sanjeev Malik has
proved the post-mortem report.

26. PW-6 Sunit Kumar retired
inspector of police has stated that on the
information of informant Prabhu Dayal
regarding the incident dated 15.05.2013
which occurred at about 11:00AM in
which her would be wife Kamla was
injured and would be sister-in-law Suman
was murdered by nephew of Kamla
namley Rahul her mother Gangoti Devi
and relatives Daulat Ram and Madan Lal.
The
First
Information
Report
was
registered and PW6 has investigated the
crime. It was further stated that on
15.05.2013, the statement of Prabhu
Dayal under Section 161 Cr.P.C. was
recorded and on the instructions of the
informant the spot inspection was made
and Naksha Nazri was prepared which is
Ex.Ka-5. It was further stated by PW-6
on 25.05.2013, he has recorded the
statement of Kamla at Osker hospital,
Bareilly and whatever stated by Kamla
was written in diary word by word and
after the completion of investigation,
charge sheet was submitted by PW-6. In
his cross-examination, it has been stated
by PW-6 that it is incorrect that prior to
lodging of F.I.R. Prabhu Dayal came to
the police station and thereafter PW-6 has
gone to the spot and after coming from
there has lodged the F.I.R. Prabhu Dayal
has not claimed to have witnessed the
incident but has mentioned the incident on
the information given by Kamla. It was
also stated by PW-6 that on 15.05.2013 he
did not met Kamla. It was also stated by
PW-6 that as Kamla told Prabhu Dayal, on
the basis of the same, Prabhu Dayal got the
spot inspection done and PW-6 prepared
Naksha Nazri. On questioning of the court,
it was informed by PW-6, when he has
recorded the statement, she was conscious
and only her lower limbs were not
functioning. It was further stated by PW-6
that dying declaration was not recorded
before the Magistrate for the reason that there
was no likelihood of the death of Kamla.

27. Contention of the learned counsel
for the appellants is that the trial court has
erroneously treated the statement of Kamla
recorded by investigating officer under
Section 161 Cr.P.C. to be a dying declaration.
Except for the aforesaid statement, all the
witnesses of fact had not supported the
prosecution version. The statement recorded
by the investigating officer under Section 161
Cr.P.C. in the present case, cannot be treated
as dying declaration under Section 32(1) of
Evidence Act. It has been further contended
that there were two charges against the
accused/appellants. First under Section 302
I.P.C. for causing murder of deceased Suman
and the other under Section 307 I.P.C. for
causing such injuries to Kamla which would
amount to attempting to murder Kamla, who
had died subsequently.

28. Per contra, learned A.G.A. has
contended that there was no bar to treat a
statement recorded by an investigating officer
under Section 161 Cr.P.C. as a dying
declaration, after the death of the person,
who has given such statement. In the
present case, after recording of statement of
Kamla under Section 161 Cr.P.C. by the
investigating officer, Kamla had died and
she could not be produced as a witness in
trial and, therefore, her statement would
fall within the purview of Section 32(1) of
Evidence Act, as dying declaration.

29. Before we proceed further to
consider rival submissions, it would be
1 All. Smt. Gangotri Vs. State of U.P.
375
appropriate to look into the provisions of
Section 32(1) of the Evidence Act:

"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.

(2).....,
(3)......,
(4).....,
(5)....,
(6)......, (7)....., (8)...."

30. Section 32(1) of Evidence Act
renders a statement relevant which was
made by a person who is dead, in cases, in
which cause of his death comes into
question, but its admissibility depends upon
one of the two conditions, i.e. either such
statement should relate to cause of his
death or it should relate to any of the
circumstances of transaction which resulted
in the death.

31. Unless the statement of a dead
person would fall within the purview of
Section 32(1) of Evidence Act, there is no
other provision under which the same can
be admitted in evidence. In order to make
statement of a dead person admissible in
law, (written or verbal), the statement must
be as to the cause of death or with regard to
any of the circumstance of the transaction
which resulted in the death, in cases, in
which cause of death comes into question.
In the present case, there is no dispute that
after recording the statement of Kamla
under Section 161 Cr.P.C., Kamla died and
could not be produced as witness during
trial because of her death. The appellants
were charged under Section 307 I.P.C. for
attempting to murder Kamla. In a charge
under Section 307 I.P.C., the question of
death of Kamla was not an issue for
consideration. It has rightly been contended
by learned counsel for the appellants that
since while dealing with the charge under
Section 307 I.P.C., the death of the person
in
question
was
not
an
issue
for
consideration,
Section
32(1)
of
the
Evidence Act would stand at bay and the
statement recorded under Section 161 could
not be considered at all. The question of the
death of the person was not an issue. Rather
it was the injuries which were caused to the
person which were being investigated into.
Except for the statement under Section 161
Cr.P.C. of Kamla, none of the prosecution
witnesses
had
deposed
as
to
the
involvement of the appellants in the
causing of such injuries to Kamla which
might result in her killing.

32. Learned counsel for the appellant
relied upon the judgment of Supreme Court
in case of Indrapal v. State of M.P.
reported in (2001) 10 SCC 76 wherein it
has been held that unless the statement of
deceased comes within the purview of
Section 32(1) of the Evidence Act, it cannot
be admitted in evidence. Such statement
must be regarding cause of death of the
376 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased or as to any of the circumstance
of the transaction which resulted in her
death. Paragraph nos, 4, 5, 6 & 7 of
Inderpal v. State of M.P. (Supra) are
quoted as under:

"4. We will consider at first the
contention as to whether there is any
evidence against the appellant which can
be used against him for entering upon a
finding that he subjected Damyanti to
cruelty as contemplated in Section 498A,
IPC. PW1 - father of the deceased and
PW8 - mother of the deceased have stated
that Damyanti had complained to them of
her plight in the house of her husband and
particularly about the conduct of appellant.
PW-4 - sister of the deceased and PW5 - a
relative of the deceased have also spoken
more or less in the same line. Exhibit P-7
and Exhibit P-8 are letters said to have
been written by Damyanti. In those two
letters reference has been made to her life
in the house of her in-laws and in one of
the letters she said that her husband had
subjected her to beating.

5. Apart from the statement
attributed to the deceased none of the
witnesses had spoken to anything which
they had seen directly. The question is
whether the statements attributed to the
deceased could be used as evidence in this
case including the contents of Exhibits P-7
and P-8 (letters).

6. Before deciding that question
we have to point out that the High Court
came to a conclusion that the allegation
that she committed suicide was not
substantiated. A dying declaration was
recorded by the Executive Magistrate in
which deceased had stated that she got
burns accidentally from a stove. If that be
so, death could not be the result of either
any harassment or any cruelty which she
was subjected to. In this context we may
point out that the State has not challenged
the finding of the High Court that death of
Damyanti was not due to commission of
suicide.

7. Unless the statement of a dead
person would fall within the purview of
Section 32(1) of the Indian Evidence Act
there is no other provision under which the
same can be admitted in evidence. In order
to make the statement of a dead person
admissible in law (written or verbal) the
statement must be as to the cause of her
death or as to any of the circumstance of
the transactions which resulted in her
death, in cases in which the cause of death
comes into question. By no stretch of
imagination
can
the
statements
of
Damyanti contained in Exhibit P7 or
Exhibit P8 and those quoted by the
witnesses
be
connected
with
any
circumstance of the transaction which
resulted in her death. Even that apart,
when we are dealing with an offence
under Section 498A, IPC disjuncted from
the offence under 306, IPC the question of
her death is not an issue for consideration
and on that premise also Section 32(1) of
the Evidence Act will stand at bay so far
as these materials are concerned."

33. In case of State of U.P. v. Shashi
Shekhar and others reported in 2004 SCC
OnLine ALL 1822, the Division Bench of
this Court has held that in case, the person
who had made the statement before his
death dies in some other incident and the
cause of death was not in question in that
trial, his statement would not be relevant
under Section 32(1) of the Evidence Act. It
will be useful to note the facts of the
aforesaid case in brief. One Dr. Ved
Bhushan was kidnapped and later on
recovered by the police. He gave a
statement
at
the
time
of
recovery
inculpating the accused therein but when
1 All. Smt. Gangotri Vs. State of U.P.
377
the matter of kidnapping went into trial, Dr.
Ved Bhushan died in some other incident
and could not be produced as witness. The
Division Bench of this Court in paragraph
no. 12 of the judgment in case of State of
U.P. v. Shashi Shekhar (Supra) held as
under:

"12. The statement made by Dr.
Ved Bhushan under Section 161 Cr. P.C.
could also not be utilised by the
prosecution in its favour as his previous
statement to fix up the culpability on the
heads of the accused-respondents. As per
Section 32(1) of the Indian Evidence Act,
the statement made by a person who is
dead can be used in evidence provided it
relates to the cause of his death, or as to
any
of
the
circumstances
of
the
transaction which resulted in his death,
in case in which the cause of that
person's death comes into question. In the
present case, Dr. Ved Bhushan was
murdered in some other incident and
cause of his death was not in question in
this trial. Therefore, his statement made
under Section 161 Cr.P.C. was hit by
Section 162."

34. In case of Gananath Pattnaik v.
State of Orissa reported in (2002) 2 SCC
619, the Apex Court has held that
prosecution witness deposed prior to
death that deceased woman has stated to
the witness that she (the deceased) was
not treated well by her husband and inlaws for non-fulfillment of balance dowry
amount.
Such
evidence
although
admissible in respect of the offence under
Section 304-B I.P.C. by virtue of Section
32(1) of Evidence Act but not admissible
for the offence under Section 498-A of
I.P.C. Paragraph no. 10 of Gananath
Pattnaik v. State of Orissa (Supra) is quoted
as under:

"10. Another circumstance of
cruelty is with respect to taking away of the
child from the deceased. To arrive at such a
conclusion, the trial court has referred to
the statement of PW5, who is the sister of
the deceased. In her deposition recorded in
the court on 4.5.1990 PW5 had stated:

"Whenever I had gone to my
sister, all the times she was complaining
that she is not well treated by her husband
and in-laws for non-fulfilment of balance
dowry amount of scooter and twin one."

and added:

"On 3.6.1987 for the last time I
had been to the house of the deceased i.e.
to
her
separate
residence.
Sworna,
Snigdha, Sima apa, Baby Apa accompanied
me to her house on that day. At that time
the deceased complained before us as usual
and added to that she said that she is being
assaulted by the accused now-a-days. She
further complained before us that the
accused is taking away the child from and
her, and that her mother in-law has come
and some conspiracy is going against her
(the deceased). She further told that "mate
au banchei debenahin".

Such a statement appears to have
been taken on record with the aid of Section
32 of the Indian Evidence Act at a time
when the appellant was being tried for the
offence under Section 304B and such
statement was admissible under Clause (1)
of the said section as it related to the cause
of death of the deceased and the
circumstances of the transaction which
resulted in her death. Such a statement is
not admissible in evidence for the offence
punishable under Section 498A of the
Indian Penal Code and has to be termed
as being only a hearsay evidence. Section
32 is an exception to the Hearsay Rule
and
deals
with
the
statements
or
declarations by a person, since dead,
relating to the cause of his or her death or
378 INDIAN LAW REPORTS ALLAHABAD SERIES
the circumstances leading to such death.
If a statement which otherwise is covered
by the Hearsay Rule does not fall within
the exceptions of Section 32 of the
Evidence Act, the same cannot be relied
upon for finding the guilt of the accused."

35. Learned counsel for the appellant
further relied upon the judgment of Apex
Court in case of Moti Singh and another v.
State of Uttar Pradesh reported in AIR
1964 SC 900, wherein in paragraph no. 15
of the aforesaid judgment, the Apex Court
has held as under:

"15. The effect of this finding is
that the alleged dying declaration of Gaya
Charan,, Ex. Kha 75, cannot be admissible
in evidence. Clause (1) of Section 32 of the
evidence Act makes a statement of a person
who has died relevant only when that
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. When Gaya Charan is not proved
to have died as a result of the injuries
received in the incident, his statement
cannot be said to be the statement as to the
cause of his death or as to any of the
circumstances of the transaction which
resulted in his death. This is obvious and is
not disputed for the respondent State."

36. In case of Sukhar v. State of U.P.
reported in (1999) 9 SCC 507, it has been
held by Apex Court that when the
prosecution did not make any attempt to
establish how the deceased died or whether
his death was in any way connected with
the injuries sustain to him on the relevant
date of occurrence, the statement given by
the injured to the investigating officer is not
admissible as dying declaration under
Section 32 of the Evidence Act. Relevant
finding in case of Sukhar v. State of U.P.
(Supra) as contained in paragraph no. 2 is
quoted as under:

"2. The prosecution case in
nutshell is that Nakkal appeared at the
police station on the date of occurrence at
9.40 a.m. and narrated the incident as to
how he was injured by the accused. The
police then treated the said statement as
First Information Report and started
investigation. The informant was then taken
to the hospital for medical examination. As
per the FIR, the accused Sukhar is the
nephew of Nakkal and had cultivated the
land of Nakkal forcibly. When Nakkal
demanded batai, Sukhar abused Nakhal
and refused to give any batai. Thus,there
was enmity between Nakkal and Sukhar. On
the fateful day during the morning
hours,while Nakkal was going on the road,
Sukhar caught hold of his back and fired a
pistol shot towards him. Nakkal raised an
alarm on account of which Ram Kala and
Pitam reached the scene of occurrence and
at that point of time, Nakkal fell down and
the accused made his escape.