# State of U.P v. Uma Shanker & Ors

- **Citation:** Criminal Appeal No. 80 of 1982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Criminal Appeal No. 80 of 1982
- **Bench:** Anil Kumar, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-uma-shanker-ors-46183
- **Pages:** 9

## Headnote

P.L.
Mishra,
Anup
Kumar
Upadyaya,
Subodh Kumar Shukla

Criminal law- Indian Penal Code - Section
302
read
with
34
-
Appeal
against
conviction.

Held :-
Testimony related witness -
The prosecution case cannot be rejected only on
the ground that witnesses are relatives of
deceased. (E-2)
Dying Declaration- An accused may be
convicted only on the basis of dying declaration
if it is true and is reliable. (para 20) No illegality
or infirmity found in the impugned judgment
passed by Trial Court. (para 26)

The appeal rejected. (E-2)

List of Cases Cited:-

## Text

3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
69
shot on the chest of the deceased and
receiving the shot he died then and there,
after firing shot all accused fled together,
and on being chased they threatened of dire
consequences for the purpose to guard
themselves and fled away, all these
circumstances clearly demonstrate that all
the accused had common intention to kill
the deceased Manish and act of exhortation
of the appellant is leading to the killing of
deceased Manish in furtherance of common
intention. There is clear, cogent and reliable
evidence against the appellant Indra Pal in
perpetration of the crime. Learned trial
court properly evaluating the evidence has
recorded the finding of conviction and
sentence. We find that learned trial court
has not committed any illegality or
infirmity in passing the impugned judgment
and order.

36. Appeal lacks merit. Accordingly it
is dismissed.

37. Appellant No.2 Indra Pal Singh @
Guddu is on bail, his bail is canceled. He
shall be taken into custody forthwith to
serve out the sentence as awarded by the
trial court and affirmed by us.

Office is directed to communicate
the order to the court concerned forthwith
and remit original record to the court
concerned.
----------
(2020)03-05ILR A69
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.01.2020

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 80 of 1982
State of U.P. ...Appellant
Versus
Uma Shanker & Ors. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
P.L.
Mishra,
Anup
Kumar
Upadyaya,
Subodh Kumar Shukla

Criminal law- Indian Penal Code - Section
302
read
with
34
-
Appeal
against
conviction.

Held :-
Testimony related witness -
The prosecution case cannot be rejected only on
the ground that witnesses are relatives of
deceased. (E-2)
Dying Declaration- An accused may be
convicted only on the basis of dying declaration
if it is true and is reliable. (para 20) No illegality
or infirmity found in the impugned judgment
passed by Trial Court. (para 26)

The appeal rejected. (E-2)

List of Cases Cited:-

1. Atbir Vs. Govt. (N.C.T. Of Delhi) (2010) 9
SCC 1,

2. Harbans Sing & anr. Vs. St. of Punj., AIR
1962 SC 439,

3. Khushal Rao Vs. St. of Bombay, AIR 1958 SC
22,

4. Surajpal Singh & ors. Vs. St., AIR 1952 SC
52,

5. St. of M.P. Vs. Mukesh & ors., (2007) 2 SCC
680.
70 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal has
been filed against the judgment and order
dated 23.10.1981, passed by Ist Additional
Sessions Judge, Hardoi in Sessions Trial
No.136 of 1981 (State vs. Umashankar and
others) arising out of Case Crime No.188
of 1980, P.S.-Qasimpur, District-Hardoi,
whereby
the
respondents-accused
(hereinafter referred to as respondents)
Uma Shankar, Pyare Lal (since deceased)
and Ashok have been acquitted by the trial
Court from the charges of offence under
Section 302 read with 34 I.P.C.

2. During pendency of appeal, the
respondent no.2-Pyare Lal had died and the
present appeal filed against him has been
abated by this Court vide order dated
11.09.2017.

3. The prosecution case, in brief, is that
the deceased Chhotey Lal (hereinafter referred
to as deceased), father of P.W.2-Laxmi Kant,
the respondents-Pyare Lal (since deceased),
Uma Shankar and Ashok were resident of
village Rasoolpur Brehman, P.S.-Qasimpur,
District-Hardoi. The respondent-Pyare Lal
(since deceased) was father of respondentAshok whereas respondent-Uma Shankar is
friend
of
respondent-Pyare
Lal
(since
deceased). Shiv Kant, another son of deceased,
used to sit with the respondents which was not
liked by the deceased as the respondents did not
had good character. On 04.11.1980 at 4:00 a.m.,
the deceased along with his son Laxmi Kant
(P.W.-2) was going to plough his field and as
they reached near the grove of Chhannu (not
examined), the respondents appeared there.
Respondent-Ashok was armed with country
made pistol whereas respondents-Pyare Lal
(since deceased) and Uma Shankar were armed
with lathis. The respondent-Pyare Lal (since
deceased) instigated the respondents-Uma
Shankar and Ashok to kill the deceased
whereupon Laxmi Kant (P.W.-2) tried to save
his father but he was caught by the respondentUma Shankar. On hue and cry made by Laxmi
Kant (P.W.-2), Ratan Shankar (not examined)
and Chhannu Lal (not examined) appeared at
the place of occurrence carrying torches.
Meanwhile, the respondent-Ashok fired at the
deceased with pistol carried by him, which hit
the chest of the deceased, whereupon he fell
down. Laxmi Kant (P.W.-2) and other villagers
took the deceased by bullock cart at Police
Station-Qasimpur, District-Hardoi, where at
7:20 a.m., a written report, (Ext. Ka-1),
prepared on dictation of deceased by one Raj
Narain (P.W.-1), was filed and first information
report (F.I.R.) was registered against the
respondents-Pyare Lal (since deceased), Uma
Shankar and Ashok and the same was
registered as Case Crime No.188 of 1980,
under Sections-307/34 I.P.C.. The deceased was
sent to Primary Health Center, Behandar,
District-Hardoi
for
recording
his
dying
declaration and his dying declaration was
recorded at 8:00 a.m. on 04.11.1980 by Dr. R.
K. Singh Chauhan (P.W.-8). The deceased was
referred to District Hospital, Hardoi, as his
condition was critical, for treatment. Dr. S. N.
Singh (P.W.-5), examined the injuries of the
deceased at 12:45 p.m. on 04.11.1980 and noted
the following injuries on his body :

"Gunshot wound of entry on the
right side of chest, just adjacent to the
sternal border, 3cmx3cm,chest cavity deep.
Margins inverted, bleeds on touch. Air is
gashping out of the wound with respiration.
Air cavity is present on whole of chest, back
with arm and neck. Swelling on the face
was present.

4. According to Doctor (P.W.-5), the
injuries
of
the
deceased
were
very
dangerous in nature as it was caused by
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
71
some fire arm and its duration was about
1/4 day. The patient (deceased) was in a
very critical condition and was having a
difficulty in talking at that time. He
prepared the injury report as Ext. Ka-13.

5. During treatment, the deceased
died in District Hospital, Hardoi at 4:25
p.m. on 04.11.1980. The inquest report was
prepared by S.I., Vidur JI Tripathi (P.W.-3),
who sealed the dead body of the deceased
and sent the same for post-mortem
examination along with relevant papers to
District Hospital, Hardoi. Dr. U. D. Kapoor
(P.W.-6), Medical Officer In-charge, Sadar
Hospital, District-Hardoi conducted the
post mortem examination of the dead body
of the deceased at 11:00 a.m. on 06.11.1980
and found the following ante mortem
injuries :

(i) One gunshot wound of entry 3
cms x 2 cms x chest cavity deep on right
side of the chest. Blackening was present
around the wound.

(ii) The third and fourth ribs were
fractured. The pleura on the right side was
badly lacerated and about 8 ounce of blood
was present.

(iii) The right lung was badly
lacerated.

According
to
him,
during
examination, three wadding pieces and 22
small pellets were found from the body of
the deceased. In the opinion of Doctor
(P.W.-6), death of deceased was caused due
to shock and haemorrhage, resulted by ante
mortem injury.

6. Investigation of the case was
entrusted to S.I., Sri Ram Patil (P.W.-4),
posted at Qasimpur, who recorded the
statements of Laxmi Kant (P.W.-2), Ratan
Shankar (not examined) and Chhannu Lal
(not examined). He inspected the place of
occurrence and prepared the site plan
(Ext.Ka-6), examined the torches and took
it in his custody from Ratan Shankar (not
examined)
and
Chhannu
Lal
(not
examined) and after examination, handed
over to them. He prepared the memo of
handing over of torches (Ext.Ka-5).

7. During investigation, after the
death of deceased, the case was converted
into under Section 302 I.P.C. and thereafter,
the investigation was entrusted to S.O. Raj
Bahadur Singh (not examined), Station
Officer, P.S.-Qasimpur, who, after due
investigation, filed charge sheet (Ext. Ka-9)
against the respondents under Section 302
I.P.C. before Chief Judicial Magistrate,
Hardoi, who took the cognizance of an
offence and since the case was exclusively
triable by the Sessions Court, after
providing the copies of relevant police
papers, committed the case to Court of
Sessions, Hardoi for trial.

8. The charge for the offence under
Section 302 I.P.C. was framed against the
respondent-Ashok whereas the charge for
the offence under Section 302 read with 34
I.P.C. was framed against the respondentsUma Shankar and Pyare Lal (since
deceased). All the respondents denied the
charges levelled against them and claimed
for trial.

9. During trial, the prosecution, in
order to prove its case, examined Raj
Narain (P.W.-1), Laxmi Kant (P.W.-2), S.I.,
Vidur JI Tripathi (P.W.-3), S.I., Sri Ram
Patil (P.W.-4), Dr. S. N. Singh (P.W.-5), Dr.
U. D. Kapoor (P.W.-6), Constable Sarju
Prasad (P.W.-7) and Dr. R. K. Singh
Chauhan (P.W.-8). Laxmi Kant (P.W.-2)
(eye witness of the occurrence) and Dr. R.
K. Singh Chauhan (P.W.-8), who recorded
the dying declaration of the deceased are
72 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses of facts whereas rest are formal
witnesses.

10.

After
conclusion
of
the
prosecution evidence, the statement of
respondents were recorded under Section
364 Cr.P.C., 1898 (Section 313 Cr.P.C.,
1973).
They
denied
the
prosecution
evidence and stated that they were falsely
implicated due to previous enmity. They
did not produce any evidence in their
defence. The learned trial Court, after
considering the entire evidence available on
record, found that the prosecution had
failed to prove the guilt of the respondents
beyond reasonable doubt and accordingly
acquitted
all
the
respondents
vide
impugned judgment and order.

11. Aggrieved by the said judgment
and order passed by learned Trial Court,
this appeal has been preferred by the State.

12. Heard learned A.G.A., Sri Subodh
Kumar Shukla, learned Senior Advocate
assisted by Sri Ashok Kumar Verma,
learned counsel for the respondentsaccused and perused the record.

13. Learned A.G.A. has submitted the
impugned judgment and order passed by
Trial Court is against the settled provision
of criminal jurisprudence. He further
submitted that Laxmi Kant (P.W.-2), son of
deceased, was present at the time of
occurrence and had seen the whole incident
; his evidence can not be discarded but the
trial Court had disbelieved his evidence
only on the technical ground. Learned
A.G.A. further submitted that disbelieving
the second dying declaration of the
deceased, recorded by Dr. R. K. Singh
Chauhan (P.W.-8) as it was not recorded in
question and answer form, is against the
settled principle of criminal jurisprudence.
Learned A.G.A. further submitted that there
is no defect in the dying declaration of the
deceased and ocular evidence is wholly
corroborated by the medical evidence led
by the prosecution. Learned A.G.A, further
submitted that the impugned judgment and
order is liable to be set aside and the appeal
be allowed.

14. Per contra, learned counsel
appearing for the respondents submitted
that the prosecution has miserably failed its
case beyond reasonable doubt. Learned
counsel further submitted that the alleged
offence was committed in the dark night
and outskirts of the village where the
presence of Laxmi Kant (P.W.-2) was not
natural. Learned counsel further submitted
that the statement of Laxmi Kant (P.W.-2)
is not supported by the medical evidence
led by Dr. S. N. Singh (P.W.-5). Learned
counsel further submitted that in the F.I.R.,
source of light was not mentioned, during
investigation
prosecution
story
was
manufactured that Ratan Shankar (not
examined)
and
Chhannu
Lal
(not
examined) appeared at the place of
occurrence carrying torches but these
witnesses were not produced by the
prosecution to prove the source of light.
Learned counsel further submitted that
dying declaration is forged and false
because deceased was not in position to
speak. Learned counsel further submitted
that the respondents are innocent ; the
deceased was murdered by unknown
persons in the night but due to enmity, they
were falsely implicated in this case.

15. We have considered the arguments
led by learned counsels for both the parties
and perused the record.

16. From perusal of the record, it
transpires that the whole prosecution story
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
73
is based on the statement of Laxmi Kant
(P.W.-2) and dying declaration of the
deceased. Learned trial Court disbelieved
the testimony of Laxmi Kant (P.W.-2) on
the ground that the alleged incident was
taken place at 4:00 a.m. on 04.11.1980 and
at that time there was no source of light at
the place of occurrence. Learned trial Court
found that on 04.11.1980 sun would have
risen at 6:30 a.m. It cannot be believed that
even the slightest day light would have
been available at 4: 00 a.m. on that day. In
addition to it, learned trial Court also
disbelieved the statement of Laxmi Kant
(P.W.-2) because the deceased had not
mentioned the presence of any light at the
place of occurrence in his dying declaration
(Ext. Ka-16). In the said facts and
circumstances, learned trial Court was of
the view that Laxmi Kant (P.W.-2) could
not have been in a position to identify the
assailants properly. In addition to the
above, learned trial Court also disbelieved
the testimony of Laxami Kant (P.W.-2) on
the ground that he had stated that the
respondent-Ashok had fired a shot from a
distance of 5 steps at his father whereas
according to medical evidence, the shot
was fired from a very close range as
blackening was found present around the
wound and the pellets and wadding pieces
had entered into the body of the deceased.
Learned trial Court also disbelieved the
prosecution story on the ground that second
dying declaration (Ext.-Ka-16) of the
deceased was not in question and answer
form.

17. It is settled principle of law that
the prosecution case cannot discarded only
on the ground that it is based on sole eye
witness who is relative of deceased if his
testimony is fully trustworthy and reliable.
Thus, in this case, it has also to be seen
whether the testimony of Laxmi Kant
(P.W.2) is reliable or not ? Coming to the
facts of this case, admittedly, the alleged
occurrence was happened on 04.11.1980 at
about 4:00 a.m. in the outskirts of villageRasoolpur. From the perusal of site plan
(Ext. Ka-6), it appears that the said
occurrence was caused nearby the grove of
one Chhannu Lal (not examined) and
nearby the place of occurrence and no
residential area has been shown. Laxmi
Kant (P.W.-2), star witness of prosecution,
has stated that at the time of occurrence, it
was 5:00 a.m., he and his father were going
to plough his field ; he was carrying plough
(Patela) and as they reached near the
western side to grove of Chhannu Lal (not
examined), he saw that respondents-Pyare
Lal (since deceased), Uma Shankar and
Ashok were present there ; respondentAshok
was
armed
with
tamancha
(countrymade pistol) whereas respondentUma Shankar and Pyare Lal (since
deceased) were armed with lathis. He
further stated that respondent-Pyare Lal
(since deceased) exhortated to kill his
father as he ran to save his father, he was
caught by respondent-Uma Shankar then
respondent-Ashok fired at his father by
pistol which hit right side of his father's
chest. He further stated that respondentAshok had fired from distance of 4-5 steps.
According to him, on his alarm, Ratan
Shankar (not examined) and Chhannu Lal
(not examined) appeared at the place of
occurrence and thereafter the aforesaid
respondents fled away. He further stated
that it was 4:30 a.m. when his father was
shot and there was some light in which he
identified the respondents. He further stated
that he with the help of witnesses brought
his father at his house, thereafter he had
gone to place of occurrence to bring the
plough and when he returned at his house,
he learnt that Raj Narain (P.W.-1) had
prepared F.I.R. (Tahrir) (Ext.K-1). In cross
74 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, he admitted that he had not
told to Investigating Officer concerned that
at the time of occurrence, he was carrying
plough (Patela). He further admitted that it
was dark night at the time of occurrence
and Ratan Shankar (not examined) and
Chhannu Lal (not examined) were carrying
torches and it was 4:00 a.m. when fire was
shot at his father. Further according to this
witness, fire was shot from the distance of
five steps whereas the according to Dr. U.
D. Kapoor, (P.W.-6), the blackening was
present around the wound and three
wadding pieces and twenty two small
pellets were found from the body of the
deceased during post-mortem examination.
Thus, in absence of source of light and as
the medical evidence is not in support of
the testimony of this sole eyewitness, the
evidence of Laxmi Kant (P.W.-2) becomes
doubtful.

18. In addition to the above, although
no effective effort was made by Laxmi
Kant (P.W.-2) to save his father and only on
this ground, his statement cannot be held
unreliable but his statement that he, leaving
his seriously injured father, had gone to
take back plough (Patela) from the place of
occurrence in stead to make any effort to
carry his father to any hospital forthwith for
treatment and meanwhile F.I.R. (Tahrir)
(Ext.K-1) was prepared by Raj Narayan
(P.W.-1) further makes his conduct and
evidence very doubtful.

19. In first information report, the
presence of Ratan Shankar (not examined)
and Chhannu Lal (not examined) has also
been shown, who appeared at the place of
occurrence on the alarm raised by Laxmi
Kant (P.W.-2). They were independent
witnesses. As per prosecution story, they
were carrying torches but reasons based
known to the prosecution, neither Ratan
Shankar (not examined) and Chhannu Lal
(not examined) were produced nor said
torches were produced before the Trial
Court. The prosecution has not put any
plausible explanation of non production of
those witnesses and vital piece of evidence,
which also made the prosecution case
doubtful.

20. The prosecution case is also based
on the dying declaration made by the
deceased which was recorded by Dr. R. K.
Singh Chuahan (P.W.-8). It is settled
principle of law that an accused may be
convicted only on the basis of dying
declaration if it is true and is reliable
because
the
admissibility
of
dying
declaration is based on the Latin Maxim
"Nemo Moriturus Praesumitur mentire"
which means that a person will not meet his
maker with a lie in his mouth. It is also
settled principle that dying declaration
cannot be treated as gospel truth; it must
inspire the confidence of the Court and
before relying on such dying declaration
the Court has to satisfy itself regarding
truthfulness and veracity of the statement
of the person who had recorded and proved
such dying declaration because the person
who had made the dying declaration never
comes before the Court for examination
and the defence has no opportunity to cross
examine him. In true sense, the evidence of
dying declaration is nothing but heresay
evidence which is inadmissible in evidence.
Thus it is duty of the Court to ensure the
fact that whether such dying declaration
was made by the deceased or not, and if it
is made by him, whether the deceased was
in free and sound state of mind and was not
tutored, influenced or pressurized by any
person. If it is proved that the maker of the
statement
was
tutored,
influenced,
pressurized or was not in a position to
make such dying declaration or any
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
75
reasonable suspicion appears in the manner
of recording thereof, such dying declaration
cannot be made as sole basis for the
conviction of accused.

21. Hon'ble Supreme Court in Atbir
Vs. Government (N.C.T. Of Delhi) (2010)
9 SCC 1, while discussing the factors
governing the reliability of the dying
declaration on the basis of law laid down
by the Hon'ble Supreme Court has
summarized the principles in this regard as
follows:-

"The following principles can be
culled out from earlier decisions of the Supreme
Court:-

(i) Dying declaration can be the sole
basis of conviction if it inspires the full confidence
of the court.

(ii) The court should be satisfied that
the deceased was in a fit state of mind at the time
of making the statement and that it was not the
result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that
the declaration is true and voluntary, it can base
its conviction without any further corroboration.

(iv) It cannot be laid down as an
absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is
merely a rule of prudence.

(v)
Where
the
dying
declaration is suspicious, it should not
be acted upon without corroborative
evidence.

(vi) A dying declaration which
suffers from infirmity such as the
deceased was unconscious and could
never make any statement cannot form
the basis of conviction.

(vii) Merely because a dying
declaration does not contain all the
details as to the occurrence, it is not to
be rejected.

(viii) Even if it is a brief
statement, it is not to be discarded.

(ix) When the eyewitness affirms that
the deceased was not in a fit and conscious state
to make the dying declaration, medical opinion
cannot prevail.

(x) If after careful scrutiny, the court is
satisfied that it is true and free from any effort to
induce the deceased to make a false statement and
if it is coherent and consistent, there shall be no
legal impediment to make it the basis of
conviction, even if there is no corroboration."

(Emphasis supplied)

22. Further, it is also well settled principle of
law that the dying declaration, if it is true and free
from any reasonable doubt as well as inspire the
confidence of Trial Court, may be sole ground for
the conviction. Before relying on such dying
declaration, it has to be seen whether there was
sufficient light on the place of occurrence and the
deceased was in a position to identify the assailant
and such dying declaration was recorded in proper
manner i.e. in question and answer form or not.
The Constitutional Bench of Hon'ble the Apex
Court in Harbans Sing and another vs. State of
Punjab, AIR 1962 SC 439 while relying the
settled principle of law on dying declaration as
held by Hon'ble the Apex Court in Khushal Rao
vs. State of Bombay, AIR 1958 SC 22, has held as
under :-

"The Court then proceeded to
review the relevant provisions of the
Evidence Act and of the decided cases in
the different High Courts in India and in
this Court and stated the law in these
words:

"That it cannot be laid down as
an absolute rule of law that a dying
declaration cannot form the sole basis of
conviction unless it is corroborated; (2)
that each case must be determined on its
own
facts
keeping
in
view
the
circumstances
in
which
the
dying
76 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration was made; (3) that it cannot be
laid down as a general proposition that a
dying declaration is a weaker kind of
evidence than other pieces of evidence; (4)
that a dying declaration stands on the same
footing as another piece of evidence and
has to be judged in the light of surrounding
circumstances and with reference to the
principles governing the weighing of
evidence; (5) that a dying declaration
which has been recorded by a competent
Magistrate in the proper manner, that is to
say, in the form of questions and answers,
and, as far as practicable, in the words of
the maker of the declaration, stands on a
much higher footing than a dying
declaration which depends upon oral
testimony which may suffer from all the
infirmities of human memory and human
character, and (6) that in order to test the
reliability of a dying declaration, the
Court
has
to
keep
in
view
the
circumstances like the opportunity of the
dying man for observation, for example,
whether there was sufficient light if the
crime was committed at night; whether the
capacity of the man to remember the facts
stated had not been impaired at the time
he
was
making
the
statement,
by
circumstances beyond his control; that the
statement has been consistent throughout
if he had several opportunities of making
a dying declaration apart from the official
record of it; and that the statement had
been made at the earliest opportunity and
was not the result of tutoring by interested
parties".

"Hence, in order to pass the test
of reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has
been made in the absence of the accused
who had no opportunity of testing the
veracity of the statement by crossexamination. But once the court has come
to
the
conclusion
that
the
dying
declaration was the truthful version as to
the circumstances of the death and the
assailants of the victim, there is no
question of further corroboration. If, on
the other hand, the court, after examining
the dying declaration in all its aspects and
testing its veracity, has come to the
conclusion that it is not reliable by itself,
and that it suffers from an infirmity, then,
without corroboration it cannot form the
basis of a conviction. Thus, the necessity
for corroboration arises not from any
inherent weakness of a dying declaration as
a piece of evidence, as held in some of the
reported cases, but from the fact that the
court, in a given case has come to the
conclusion that that particular dying
declaration
was
not
free
from
the
infirmities referred to above or from other
infirmities as may be disclosed in evidence
in that case."

(Emphasis supplied)

23. Dying declaration (Ext. Ka-16) of
the deceased was recorded on 04.11.1980 at
about 8:00 a.m. by Dr. R. K. Singh
Chauhan (P.W.-8). This dying declaration
does not show whether any question was
put to deceased regarding occurrence or not
? In this dying declaration neither any
source of light nor presence of Laxmi Kant
(P.W.-2) nor presence of Ratan Shankar
(not examined) and Chhannu Lal (not
examined) has been stated by deceased. As
per this dying declaration, only deceased
was going at about 4:00 a.m. to plough his
field and when he reached near the grove of
Chhannu Lal, the respondents-Pyare Lal,
Uma Shankar and Ashok appeared at the
place of occurrence, they stopped the
deceased and on the exhortation of the
respondent-Pyare Lal (since deceased), the
respondent-Ashok fired on the person of
3-5 All. Vinod Vs. State of U.P.
77
deceased by pistol. According to Dr. S. N.
Singh (P.W.-5), injuries of the deceased was
so dangerous that it bleeds on touch and air
was gashping out of the wound with the
respiration ; the patient was in very critical
condition. In his opinion, the injury of the
patient was dangerous in nature. Thus, in
view of absence of source of light at the
place of occurrence, critical condition of
deceased and also it is not in question and
answer form, the dying declaration (Ext.
Ka-16) is doubtful and not reliable.

24. It is settled principle of law that
the accused will be presumed as innocent
unless and until the prosecution has
succeeded to prove its case beyond
reasonable doubt and the presumption of
innocence
of
accused
is
further
strengthened if he is acquitted by the Trial
Court
after
considering
the
material
evidence available on record. Hon'ble the
Apex Court in Surajpal Singh and others
Vs. State, AIR 1952 SC 52 held as under :-

"It is well-established that in an
appeal under section 417 of the Criminal
Procedure Code, the High Court has full
power to review the evidence upon which
the order of acquittal was founded, but it is
equally well-settled that the presumption
of innocence of the accused is further
reinforced by his acquittal by the trial
court, and the findings of the trial court
which had the advantage of seeing the
witnesses and hearing their evidence can
be reversed only for very substantial and
compelling reasons." (Emphasis supplied).

25. It is also well settled principle of law
that in an appeal against acquittal, if two views
are possible, one is in favour of accusedperson and judgment of Trial Court is not
illegal or manifestly perverse, the appellate
Court should not disturb the order of acquittal.
Hon'ble the Apex Court in State of Madhya
Pradesh vs. Mukesh and others, (2007) 2
SCC 680 held as under :-

"Moreover, it must be borne in mind
that we are dealing with a judgment of
acquittal passed by the High Court. If two
views are possible, ordinarily this Court would
not interfere therewith. The State has not been
able to show any illegality in the judgment of
the High Court. We, therefore, do not intend to
interfere therewith. The appeal is dismissed."

26. In the light of above discussions, we
are of the view that the impugned judgment
and order passed by Trial Court is well
reasoned, well discussed and requires no
interference. The prosecution has miserably
failed to prove its case beyond reasonable
doubt and there is no illegality or infirmity in
the impugned judgment and order dated
23.10.1981 passed by Trial Court in Sessions
Trial
No.136
of
1981,
whereby
the
respondents-accused were acquitted. The
appeal is liable to be dismissed.

27. The judgment and order dated
23.10.1981 passed by Trial Court in Sessions
Trial No.136 of 1981 is affirmed. The appeal
lacks merit and is dismissed.
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(2020)03-05ILR A77
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 119 of 2019

Vinod ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anurag Mishra, Sri Om Prakash