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2023 DIGILAW 1835 (ALL)

Ram Kishore v. State of U. P.

2023-08-02

NAND PRABHA SHUKLA, SURYA PRAKASH KESARWANI

body2023
JUDGMENT : 1. Heard Sri Satish Chandra Dubey, learned counsel for the appellant and Sri Jitendra Kumar, learned A.G.A. for the State-opposite party. 2. The present appeal under Section 374 (2) Cr.P.C. has been preferred by the sole appellant Ram Kishore assailing the judgment and order of conviction and sentence dated 07.01.1982 passed by the learned Trial Court in Sessions Trial No. 252 of 1980 (State vs. Ram Kishore and Others) arising out of Case Crime No. nil of 1979, under Sections 307, 394 IPC, P.S. Baberu, District- Banda whereby the appellant has been convicted for the offences under Sections 302 and 394 of the IPC and sentenced which is as follows: 1. To undergo life imprisonment under Section 302 IPC. 2. To undergo rigorous imprisonment for seven years for the offences under Section 394 IPC. 3. All the punishments shall run concurrently. 3. The trial had proceeded against all the three accused under Section 302 read with Section 34 IPC, 307 read with Section 34 IPC and Section 394 IPC. 4. Out of the total three accused, only Ram Kishore has been convicted and the rest two accused Iqbal Bahadur and Ram Gopal were acquitted at the stage of 232 Cr.P.C. The acquittal orders have not been subjected to challenge. 5. Brief facts of the prosecution case are that: Ramanand lodged an FIR on 18.07.1979 at 06:15 p.m. at Police Station- Baberu, District- Banda, under Sections 307 and 394 IPC against three accused persons, namely, Ram Kishore, Ram Gopal and Iqbal Bahadur stating that on the date of the incident at around 07:00 a.m., he proceeded for his Sasural at Village Amwa, Police Station- Biseda, District-Banda on his bicycle carrying his gun bearing Licence No. 1581 along with 32 cartridges. He reached at Agausi Ghat at about 09:30 a.m., he met three persons, namely, Ram Kishore, Raj Gopal Bhujwa and Iqbal. All the four persons together crossed the river by one boat. After reaching Agausi, they could not get the Bus, therefore, detained at Agausi. The other three wanted to go to Village Patvan but as the Bus did not come, they went to the place of Pheran Bhujwa situated near Agausi Bus Stand. There they took the meals and again went to the Bus Stand at 06:00 p.m. They met a person working in the Malaria Department, who used to live at Village Nimor. The other three wanted to go to Village Patvan but as the Bus did not come, they went to the place of Pheran Bhujwa situated near Agausi Bus Stand. There they took the meals and again went to the Bus Stand at 06:00 p.m. They met a person working in the Malaria Department, who used to live at Village Nimor. In the meantime, accused Ram Kishore took his gun and cartridges. Ram Gopal sat at the bicycle of the first informant while accused Iqbal Bahadur Singh and Ram Kishore sat at the bicycle of the person said to have serving in Malaria Department. When they covered the distance of about one kilometer towards Kazi Tola, near the culvert, on the road side, Ram Kisore fired the gun at Ramanand. The first informant sprang towards the Mahua tree in the field. All the three chased him, then Ram Kishore again fired at him. Hearing the noise, Pheran Bhujwa, Devi Dayal Master and number of other persons reached there. All the three accused persons fled away from the spot with his gun and cartridges. The persons who reached there, took him to Baberu to some distance by Tonga and the rest by a Bus. 6. After reaching the hospital at Baberu, Dr. P.C. Chandel examined the injuries of Ramanand in the intervening night of 18.07.1979 and 19.07.1979 at 12:05 a.m. at Sadar Hospital, Banda. The injuries found by Doctor on the body of Ramanand are as under: “1. Lacerated wound 13 cm x 2.5 cm x muscle deep on Rt side of face (on cheek) & extending to Back below ear lobule & up to back of neck. Margins lacerated. Skin lost and muscle torn. Blackening and tatooing present on Rt cheek. Adv x-Ray wound is gutter shaped and direction from front to back & slightly downwards. 2. Abrasion 2.5 cm x 0.5 cm on lateral part of external ear including ear lobule. 3. Multiple Abrasions in an area 7 cm x 1.5 cm on upper margin of wound of Injury no. 1 behind the ear lobule. 4. Lacerated wound 9 cm x 7 cm x muscle deep on upper most part of back of Rt. side chest 2 cm below the margin of Injury No. (1) and 4 cm lateral to Achromion process of Rt scapula. Skin lost & tissues are lacerated & muscle torn. Adv x-Ray. 5. 1 behind the ear lobule. 4. Lacerated wound 9 cm x 7 cm x muscle deep on upper most part of back of Rt. side chest 2 cm below the margin of Injury No. (1) and 4 cm lateral to Achromion process of Rt scapula. Skin lost & tissues are lacerated & muscle torn. Adv x-Ray. 5. Multiple gun shot wounds of entry four in number in an area of 5 cm x 1.5 cm on lateral aspect of left side Abdomen each measuring 0.5 cm x 0.5 cm x cavity deep 2 cm above Iliac chrest and 16 cm away from umblicus at 3 o’ clock position. Margins inverted with Abraded collar. No blackening or tatooing or charring present. Adv. x-Ray abdomen. Direction from left to right inward, medially and slightly downwards. 6. Abrasion 7 cm x 1 cm obliquely placed 3 cm above Injury No. 5. 7. Lacerated wound (G.S.W. of exit) 0.6 cm x 0.6 cm x cavity deep on Rt side front of abdomen. 3 cm away from umblicus at slightly lower level to Injury No. (5) margin everted & lateral to it foreign body (Hard) is palpable. Opinion: Injury No. 1, 4 & 5 kept U.O. Adv. x-Ray face with Neck, x-Ray upper chest & x-Ray Abdomen. Rest are simple. Duration- Fresh Caused by Abrasion by friction & rest by firearm.” 7. While treatment, Ramanand was identified and brought by C.P. Sujan Singh No. 196, P.S.-Baberu, Banda. During treatment, the condition of the first informant became critical. The Doctor called the Tehsildar, Banda for recording the dying declaration. This dying declaration was recorded on 19.07.1979 at 1:20 a.m. by Sri Shiv Murti Singh Tehsildar/ Magistrate, Banda. The contents of the dying declaration as recorded by Tehsildar, Banda is quoted below: 8. Before recording the dying declaration, the Medical Officer of the Sadar Hospital, Banda gave a certificate that Ramanand was fully conscious at the time of recording of the dying declaration and remained conscious throughout the recording of dying declaration. This document was exhibited as Exhibit Ka-18. The first informant took his last breath on 19.07.1979 at 11:30 a.m. The post-mortem of Ramanand was conducted on 20.07.1979 and the following ante mortem injuries were found on the body of the deceased: “1. This document was exhibited as Exhibit Ka-18. The first informant took his last breath on 19.07.1979 at 11:30 a.m. The post-mortem of Ramanand was conducted on 20.07.1979 and the following ante mortem injuries were found on the body of the deceased: “1. Gutter shaped gun-shot wound of Entry-15 cms x 3 cms x muscle deep over Right side of cheek & lateral aspect of Right side of neck. 7.5 cms from left angle of Rt. Eye & 7.5 cms from Rt angle of mouth. Tatooing and charring present around the wound, margins inverted and lacerated. Direction- Backward downwards & medially. 2. Gutter shaped gun-shot wound of entry- 9 cms x 4 cms x muscle deep over superior aspect of right shoulder 3 cms back to Achromian process of Rt scapula. Injuries No. (1) and (2) are produced one shot they are superimposed to each other. 3. Abrasion- 3 cms x 1 cms over lateral aspect left chest. 17 cms below the left nipple and 17 cms form umblicus. 4. 4 gunshot wound of entry- in an area of 5 cms x 2 cms. Over lateral aspect of left side of abdomen. 0.5 cm x above the Left Iliac crest 14 cms from umblicus. No tatooing or charring part margin inverted, Directionmedially & forward. 5. Gun shot of wound of exit- 0.6 cm x 0.6 cm over Ant. aspect of Rt side of abdomen. 3 cms for umblicus at 9 o’ closed position. Margins everted.” 9. The cause and manner of death was due to shock and haemorrhage. During the course of investigation, incriminating material was collected and the charge sheet was filed, cognizance was taken and the charges were framed under Section 302/34 IPC, 307/34 IPC and Section 394 IPC against all the three accused persons. 10. Prosecution Witnesses: During the trial, prosecution examined 12 witnesses as under: P.Ws. Names of Prosecution Witnesses Status PW-1 Sri Rampal Scribe of the First Information Report PW-2 Sri Pheran Cooked food for the deceased and accused PW-3 Sri Devi Dayal Singh Accompanied with Ramanand on Bus to admit him in the hospital PW-4 Sri Mitan Ram Sub-Inspector Proved the inquest report prepared by him at Sadar Hospital, Banda. PW-5 Sri Naipal Singh, S.O. Marka First Investigating Officer who partly investigated the crime PW-6 Dr. Vikash Chandra Conducted the post-mortem examination of the dead body of the deceased. PW-5 Sri Naipal Singh, S.O. Marka First Investigating Officer who partly investigated the crime PW-6 Dr. Vikash Chandra Conducted the post-mortem examination of the dead body of the deceased. PW-7 Sri P.C. Chandel Medical Officer, Sadar Hospital, Banda Admitted the injured, examined his injuries and in whose presence dying declaration of the deceased was recorded PW-8 Sri Shiv Murti Singh, Tehsildar/Magistrate II Class, Banda. Recorded the dyingdeclaration of the deceased. PW-9 Sri Ram Bahadur Singh, Constable, P.S. Baberu, Banda proved Chik FIR which was sent to P.S. Marka, Banda PW-10 Sri Kaptan Singh Head Constable, P.S. Marka Head Muharir of PS Marka. Proved the GD Entry. PW-11 Sri Devi Dayal Prajapati, S.I., Marka Second investigating Officer who submitted the Charge Sheet PW-12 Sri Sukuru Lal Varma, House Visitor Working in Malaria Department/injured Eye witness 11. Documents exhibited and proved: Documents Exhibits First Information Report Ex.Ka-19 Dying Declaration of Ramanand Ex.Ka-18 Tehrir/Report Ex.Ka-1 Injury report Ex.Ka-15 Post-mortem examination report of Ramanand Ex.Ka-13 X-Ray Report of Ramanand Ex.Ka-17 Statement of Pheran Bhujwa Ex.Ka-2 Statement of Devi Dayal Master Ex.Ka-3 Statement of Ramanand under Section 161 Cr.P.C. Ex.Ka-11 Site Plan Ex.Ka-12 Application of Sukru Lal PW-12 given to PS Baberu Ex.Ka.22 12. Now, we proceed to examine the prosecution witnesses and the records exhibited : PW-1 Sri Rampal in his testimony deposed that the deceased Ramanand reached Baberu crossing along with Pheran and Devi Dayal on a Bus, Pheran called him for medical treatment of the deceased Ramanand. PW-1 along with the deceased Ramanand and others went to the hospital but as he asked to first get the F.I.R. registered, so on that very spot, Ramanand dictated the contents and PW-1 noted down the application and went to the Police Station, on the basis of which FIR was registered. PW-1, who is a scribe of FIR, has proved the application as Exhibit Ka-1. He further deposed that the deceased Ramanand was at the hospital himself for the treatment and PW-1 alone came to the Police Station, Baberu for lodging the FIR and a Constable was sent to the hospital for identifying injured. PW-2 Pheran deposed that his place lies at Bus-stop, Agausi. He runs an Ikka also. About two years and one month back, Ram Kishore and three others came to his place who were hungry. All four had the meals and went away. Amongst them, one was carrying gun and cartridge. PW-2 Pheran deposed that his place lies at Bus-stop, Agausi. He runs an Ikka also. About two years and one month back, Ram Kishore and three others came to his place who were hungry. All four had the meals and went away. Amongst them, one was carrying gun and cartridge. After the meal, all four at around 6:00 to 6:30 p.m. went away. When PW-2 went on his Tonga for about one and a half miles, he saw an injured person lying on the road and could recognise that he is the one who accompanied Ram Kishore and had meals at his place. PW-2 carried the injured on his Tonga and went towards Baberu. Devi Dayal and 4-5 other people also accompanied him. On the way, they saw a Bus passing-by, the injured sat on the Bus, even PW-2 and Devi Dayal came along with the injured to Baberu Chauraha where they met PW-1 Rampal of Village- Agausi. The injured was admitted in the hospital for the treatment where he narrated the incident which was scribed by Rampal (PW-1). Rampal took that report to the Police Station, Baberu from where a home-guard reached to the hospital. The Constable, PW-2 and a person from Patvan took the injured for medical examination at 12:00 mid night to Sadar Hospital, Banda. In his cross-examination, PW-2 had deposed that he knew Ram Kishore, who along with Ram Gopal and Iqbal Bahadur came on his place for the meals. PW-3 Devi Dayal Singh deposed that about two years back, while he was present at the Baberu Chauraha at about 09:00 p.m., where Rampal PW-1 was also present, a Bus came carrying 15-25 passengers, a person came and informed that there is an injured man, who needs to be admitted in the hospital. He went to the Hospital for the treatment and again accompanied Rampal to the Police Station. In his crossexamination, he denied the suggestion that he was present at Agausi or he was present at the place of the incident nor he saw Ram Kishore firing at the deceased or running away with the gun and cartridge. He also deposed that the distance of the hospital from the Bus Stand was about 70-80 steps away. He saw the injured whining with pain and seeking medical aid. PW-4 Sub Inspector Mitan Ram prepared the Inquest Report and collected the Post-Mortem Report. He also deposed that the distance of the hospital from the Bus Stand was about 70-80 steps away. He saw the injured whining with pain and seeking medical aid. PW-4 Sub Inspector Mitan Ram prepared the Inquest Report and collected the Post-Mortem Report. In his cross-examination, he deposed that the injured Ramanand died on 19.07.1979 at 11:30 p.m. at District- Sadar Hospital, Banda. PW-5 S.O. Naipal Singh deposed that on the date of incident he was posted as SHO Police Station, Marka. On that same day, he received relevant documents i.e. FIR, General Diary with regard to registration of the crime from PS-Baberu. As per this GD, the FIR was registered at Police Station-Baberu, which is the part of the GD at P.S.-Marka. At Parcha No. 11, the said witness proved the original GD. On 19.08.1979 itself, the offence under Sections 307 and 394 IPC was converted into offence under Sections 302 and 394 IPC, which is also the part of the Case Diary and proved the Exhibit Ka-10. PW-5 took over the investigation on the same date and recorded the statements of the Head Constable Kaptan Singh, Constable Hari Shankar Tiwari and the statement of the injured Ramanand at Sadar Hospital, Banda under Section 161 Cr.P.C. On the same date, he recorded the statement of Pheran, Shree Pal, who made the spot inspection, prepared the site plan (Exhibit ka-12). He also deposed that Ramanand was in a fit condition, who could speak while recording the statement. He did not make any effort to get his statement recorded by the Magistrate as he could not infer that he may die. Neither he ask the Doctor whether he may die, nor did he enquire Doctor about his health condition. In his cross-examination, he categorically denied that Ramanand was not in a position to speak. PW-6 Dr. Vikash Chandra proved the post-mortem Report of the deceased Ramanand and found following ante mortem injuries on the body of the deceased which are as under: PW-7 Dr. P.C. Chandel deposed that he was posted as Medical Officer, Sadar Hospital, Banda and was on emergency duty. On the intervening night of 18/19.07.1979 at 12:05 a.m., he examined the injuries of Ramanand who was brought and identified by Constable Sujan Singh, C.P. 196 and was initially treated and referred by Dr. Khan of Primary Health Center, Baberu. He also proved the ticket brought by Dr. On the intervening night of 18/19.07.1979 at 12:05 a.m., he examined the injuries of Ramanand who was brought and identified by Constable Sujan Singh, C.P. 196 and was initially treated and referred by Dr. Khan of Primary Health Center, Baberu. He also proved the ticket brought by Dr. Khan as Exhibit Ka-14. After the medico-legal examination, the Doctor found injuries on the body of Ramanand. The Doctor opined that Injury Nos. 1, 4 and 5 were kept under observation, rest other injuries were simple. All the injuries were fresh and must have been caused at around 6:00 hours. The abrasion must have been caused due to friction. Rest other injuries were caused due to firearm. These injuries could have caused on 18.07.1979 at about 06:00 p.m. He entered the injury in the Injury Register and obtained the signatures of Ramanand and proved it as Exhibit Ka-15. He himself admitted Ramanand in the hospital and proved his bed head ticket as Exhibit Ka- 15, which was prepared in his own handwriting. Thereafter, the patient was attended by Dr. D.S. Rana. On 19.07.1979 at 11:20-11:30 a.m., Dr. S.K. Gupta attended the patient proved as Exhibit Ka-16. The names of Dr. D.S. Rana and Dr. S.K. Gupta were mentioned. The patient died at Sadar Hospital, Banda on 19.07.1979 at 11:30 a.m. At the time of admission, the condition of the patient was not good. His blood pressure was low (80/50), but the patient was conscious. During his treatment, the said witness made an effort to get his dying declaration recorded as a result of which on 19.07.1979 at 1:20 a.m., the dying declaration of Ramanand was recorded by Tehsildar, Banda, whose entry is mentioned on the Bed Head Ticket. He witnessed recording of dying declaration and certified the ticket on 19.07.1979 at 1:15 a.m. with a noting that the patient was in a condition to speak. PW-8 Shiv Murti Singh deposed that he was posted as Tehsildarcum- Magistrate-II Class at District-Banda. On that same day, he received an information from Sadar Hospital, Banda to get the dying declaration recorded of an injured. He reached the emergency ward of Sadar Hospital, Banda, where the injured was under treatment of Dr. Chandel. The injured was in a condition to speak. The Doctor gave his opinion that the injured was in a condition to speak. Whatever was narrated, he noted it down. He reached the emergency ward of Sadar Hospital, Banda, where the injured was under treatment of Dr. Chandel. The injured was in a condition to speak. The Doctor gave his opinion that the injured was in a condition to speak. Whatever was narrated, he noted it down. After recording the statement, his thumb impression, was obtained on it except the Doctor no other person was present at the time while recording the statement. The said statement was proved as Exhibit Ka-18 which has been prepared in his own hand-writing and bears the information of the Dr. Sri P. C. Chandel about his health condition. He had put his initials of the said dying declaration as was recorded on 19.07.1979 at 1:20 a.m. in mid night. PW-9 Ram Bahadur Singh Constable C.P. 561 deposed that on 18.07.1979, he was posted at P.S. Baberu, District-Banda as Constable on that day at 09:30 p.m., Ram Pal of Village Agausi came with the Tehrir Report (Exhibit Ka-1). On the basis of which an FIR (Exhibit Ka-19) was registered. The said witness proved the Chik FIR (Exhibit Ka-19). The necessary information was entered into the General Diary which was brought and proved in the original. This information was at once passed to Police Station-Marka on the RT Set at that very moment. At the time of lodging of the FIR, the first informant Ramanand was in the hospital. He sent Constable Sujan Singh and Home guard Ram Sahay to the hospital along with the letter so that the Doctor may treat the injured accordingly. On the very next day, all the relevant documents relating to the case, were sent to the P.S.-Marka. The said witness in his cross-examination stated that he was not aware whether any dying declaration are recorded or not? At that time, S.O. Rajpal Singh was present. Rampal, who brought the Tehrir Report, stated that the condition of the injured was not good. PW-10 Kaptan Singh deposed that on 19.07.1979, he was posted as Head Muharir, P.S.- Marka, District- Banda and on the same date, he entered the Chik FIR (Exhibit Ka-19), which was registered at Police Station Baberu on 18.07.1979 in his General Diary as Report No. 31, and same was received on 19.07.1979 at 12:15 p.m. This original diary was proved as Exhibit Ka-9. This case was registered in the presence of S.O. Naipal Singh, who took over the investigation. This case was registered in the presence of S.O. Naipal Singh, who took over the investigation. In his cross-examination, the said witness deposed that in case, any information would have been received on RT Set, the same would have been registered in the RT Set Register. PW-11 Devi Dayal Prajapati, is the second Investigating Officer and was posted as S.H.O., P.S.- Marka, District- Banda. He deposed that initially the investigation was entrusted to the then S.O. Naipal Singh, after his transfer, he took over the investigation on 22.10.1979 and recorded the statement of the accused and other witnesses and filed the charge-sheet and proved it as Exhibit Ka-21. In his cross-examination, he deposed that he forgot to record the statement of the person working in the Malaria Department. He did not even try to find out the licence of the gun. He even did not find the application given by Sukuru Lal Verma. PW-12 Sukuru Lal Verma was examined as an injured witness and deposed that on 18.07.1979 i.e. on the date of the occurrence, he was posted in Agausi area as a house visitor. He used to collect blood from individuals for examination and analysis and also used to distribute Malaria tablets. He stated that he had gone to Agausi on 18.07.1979 in connection with discharge of his duties. He stated that he kept his bicycle at the place of Bhujwa who lives near Agausi Bus Stand. He returned from Agausi at about 6:00 to 6:30 pm. He collected his bicycle from the place of said Bhujwa and when he had gone only a distance of 10 steps, he met three persons. He did not know them from before, he stated that one of them had bicycle and one of them had a gun and third was empty handed. His residential house was situated in Nimore, a place near Kazi Tola. He was going to Nimore. They requested him to accompany them upto Kazi Tola and gave one of them to sit on his bicycle. One of them started driving his bicycle and the rest two rode the other bicycle. The said rest two persons followed his bicycle. When they covered a distance of about 1¼ or 1½ kms., one of the said two persons, who were on bicycle behind him, fired a gun, which hit him at his left thumb. One of them started driving his bicycle and the rest two rode the other bicycle. The said rest two persons followed his bicycle. When they covered a distance of about 1¼ or 1½ kms., one of the said two persons, who were on bicycle behind him, fired a gun, which hit him at his left thumb. The other person who was driving his bicycle left his bicycle and ran towards west of the road. While he was running towards Agausi, he heard another voice of gun. He accompanied two persons from Agausi and again went back to the place of occurrence. He did not find any person there. He with the help of those two persons whom he had accompanied from Agausi, rode his bicycle and went away to his residential place. On 19.07.1979, he went to Baberu Hospital and along with the Doctor he went to the Police Station and handed over an application marked as Exhibit Ka-22. He stated that these accused persons are not the one who were with him and the deceased at the time of the occurrence. He refused to recollect names of persons who accompanied with him to the place of occurrence and also the name of Bhujwa. 13. Statement of the accused recorded under Section 313 Cr.P.C.: After the closure of the prosecution evidence further statements of the accused under Section 313 Cr.P.C. were recorded. The accused pleaded the innocence and stated that they have been falsely implicated in this case. Accused/appellant Ram Kishore stated that he had heard that such an occurrence had taken place. On hearing about this occurrence, he also went to Bus Stand but heard that some persons had taken the injured to Baberu Hospital. He further stated that one Ram Das is inimical to him and he got him falsely implicated in this case. 14. Per contra, learned A.G.A. Sri Jitendra Kumar vehemently opposed the argument raised by the counsel for the appellant and argued that judgment passed by the Trial Court does not contain any infirmities and it is based on evidence and testimony of the prosecution witnesses. Trial Court has rightly convicted the appellant after considering and evaluating the facts and law. There is dying declaration against the appellant regarding his involvement in the crime. Learned A.G.A. has supported the judgment, conviction and the sentence. 15. Trial Court has rightly convicted the appellant after considering and evaluating the facts and law. There is dying declaration against the appellant regarding his involvement in the crime. Learned A.G.A. has supported the judgment, conviction and the sentence. 15. Findings and Analysis: After the meticulous examination of the evidence on record, it can be safely concluded that both sides agreed that Ramanand was murdered. Accused persons have not challenged the place of occurrence. There was no dispute between the parties about the time or place of the occurrence and in his dying declaration, injured/informant stated that he was fired near a Puliya (Culvert) about one kilometer away from Agausi. Accused persons have not challenged this place and have admitted that an occurrence, as he had heard, did happen, at the said place. There is an eye witness account of the incident. Pheran Bhujwa examined as P.W.-2 and few others of the Village found the deceased in an injured condition at the said place. All these evidence taken together clearly establish the place of occurrence on the road side on Agausi, Baberu Road at a distance of one kilometer from Agausi. Sukuru Lal Verma PW-12, injured/eye witness who accompanied the deceased at the time of the occurrence, has supported the prosecution so far the fact as to when where and how the occurrence took place but he refused to identify the accused persons. Rest of the persons, who were seen with the deceased instead of being cited as witnesses, have been arraigned as accused. There was no other person present at the time of occurrence. Under these circumstances, the only direct evidence against the accused appellant available if at all, is the dying declaration of Ramanand which can be made a basis of conviction. Dr. P.C. Chandel examined the injuries of the deceased in the intervening night of 18/19.07.1979 at Sadar Hospital, Banda. He found three abrasions and gun shot wounds at four places, two of entry and two of exit. Dr. Vikas Chandra, who conducted the post-mortem examination on the dead body of deceased found these gun shot injuries at the time of the post-mortem examination. According to him, death of the deceased was caused due to the shock and haemorrhage. These injuries in the ordinary course were sufficient to cause the death of any man. Under these circumstances, it can be safely concluded that deceased Ramanand was murdered. 16. According to him, death of the deceased was caused due to the shock and haemorrhage. These injuries in the ordinary course were sufficient to cause the death of any man. Under these circumstances, it can be safely concluded that deceased Ramanand was murdered. 16. It has further been noticed that the FIR was dictated by Ramanand. His statement under Section 161 Cr.P.C. was recorded by the Investigating Officer and a dying declaration was also recorded by the Magistrate. Exhibit Ka-18 is a dying declaration of the deceased Ramanand which was recorded by P.W.-8 Shiv Murti Singh Tehsildar, Banda on 19.07.1979 in the hospital premises. It bears the certificate of the Doctor that Ramanand, the injured, was fully conscious at the time of recording his statement and remained conscious throughout the process of the said recording. There was no chance of any tutoring at all. Thus, the deceased was in a fit state of mind to make the statement, he clearly identified the assailant and voluntarily made a true statement without any foreign influence or rancour. The said statement is also corroborated by medical evidence and the statements of P.W.-2 and P.W.-12. The deceased had no enmity with any of the accused, therefore, it cannot be expected to have mention any wrong facts against any of the accused persons. The deceased stated that it was only accused Ram Kishore who attacked him and in spite of his request did not spare, and gave another fire shot. He has also stated the manner in which the injuries were received. He stated that at the first shot, he fell upon when he was on a bicycle and in the second impact he again fell upon when he was in a crouching position. After carefully considering the injury report, post-mortem report, seat of the injuries and the opinion of the Doctor, it can be concluded that Ramanand received two gun shot injuries at two places, one could have been caused in straight line while he was sitting on the bicycle and other could be caused in a crouching position. The fact that accused Ram Kishore fired two shots at the injured and ran away with the gun and 32 cartridges, has also been proved. His statement well corroborates with the medical evidence establishing the guilt of the accused appellant. 17. The fact that accused Ram Kishore fired two shots at the injured and ran away with the gun and 32 cartridges, has also been proved. His statement well corroborates with the medical evidence establishing the guilt of the accused appellant. 17. Case Laws cited and relied: The law on the subject of dying declaration has been clearly and explicitly enunciated by the Apex Court. 1. His statement well corroborates with the medical evidence establishing the guilt of the accused appellant. 17. Case Laws cited and relied: The law on the subject of dying declaration has been clearly and explicitly enunciated by the Apex Court. 1. In Khushal Rao vs. State of Bombay 1958 SCR 552 : AIR 1958 SC 22 : 1958 Cri LJ 106 which held as under: "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) 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 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." 2. In Laxman vs. State of Maharashtra (2002) 6 SCC 710 , it has been held that: “The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.” 3. In Poonam Bai vs. State of Chhattisgarh (2019) 6 SCC 145 , it has been held that: "A dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording dying declaration is satisfied that declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, dying declaration may not be invalid solely on the ground that it was not certified by the doctor" 4. In Jayamma and Another vs. State of Karnataka (2021) 6 SCC 213 it has been held that: "When a dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the court can rely upon it as the solitary piece of evidence to convict the accused. It is for such reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the deceased admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the sole basis for conviction." 18. Section 32(1) of the Evidence Act, 1872 provides for the relevance of the statement made by a person who is dead. Section 32(1) of the Evidence Act, 1872 is reproduced below: “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.” 19. Series of judgments of Hon’ble Supreme Court laying down the law on “dying declaration” reveals that a dying declaration can be the sole basis of conviction if it is trustworthy, voluntary, blemishless and reliable. Series of judgments of Hon’ble Supreme Court laying down the law on “dying declaration” reveals that a dying declaration can be the sole basis of conviction if it is trustworthy, voluntary, blemishless and reliable. 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. 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 party. The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. Since the accused has no power of cross-examination, the Court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. When a dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the court can rely upon it as the solitary piece of evidence to convict the accused. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. As per Sub- Section (1) of Section 32 of the Evidence Act, 1872, 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, then such statements are relevant whether the person who made them was or was not under expectation of death, at the time when they were made. 20. Applying on the facts and circumstances of the present case the provisions of Section 32(1) of the Evidence Act, 1872 and the principles of law settled by Hon’ble Supreme Court as briefly summarised above, we find that the dying declaration of the deceased was recorded by a Magistrate who deposed as PW-8. 20. Applying on the facts and circumstances of the present case the provisions of Section 32(1) of the Evidence Act, 1872 and the principles of law settled by Hon’ble Supreme Court as briefly summarised above, we find that the dying declaration of the deceased was recorded by a Magistrate who deposed as PW-8. In his testimony, he stated that the injured was in a condition to speak and the doctor has given his opinion that the injured was in a condition to speak and when the deceased’s statement was recorded, no one except the doctor was present. The PW-8 has proved the “dying declaration” (Ex. ka-18) which was prepared by the PW-8 in his own handwriting and bears the opinion of Dr. P.C. Chandel (PW-7) about his health condition. The statement of the deceased was recorded on 01:20 A.M. on 19.07.1979. The PW-7 Dr. P.C. Chandel has stated in his evidence that the patient was conscious at the time of recording of his statement by the PW-8 and entry to this effect was made on the Bed Head Ticket with a noting that the patient was in a condition to speak. The learned trial court has found the dying declaration to be trustworthy and not tutored. Under the circumstances, the dying declaration (Ex.ka-18) as proved by the PW-8 and corroborated with the evidence of PW-7, has to be given due weight. Considering the evidence of prosecution witnesses as noted in paragraph-12 of this judgment, we are of the view that the “dying declaration” of the deceased was voluntary and trustworthy. Therefore, it can be safely concluded that the accused Ram Kishore committed the offence under Section 302 and 394 I.P.C. Accordingly, his conviction and sentence under Sections 302, 394 I.P.C. deserves to be confirmed. 21. For all the reasons stated herein above, this Court finds no reason to interfere with the impugned judgment and order dated 7.1.1982 passed by the Trial Court in Session Trial No. 252 of 1980 convicting and sentencing the sole appellant Ram Kishore for the offences under Sections 302 and 394 IPC. This Court is in complete agreement to the view taken by the Trial Court and affirms the same. The appeal is, accordingly, dismissed. Accused/appellant Ram Kishore has already been arrested and sent to jail on 20.07.2023. This Court is in complete agreement to the view taken by the Trial Court and affirms the same. The appeal is, accordingly, dismissed. Accused/appellant Ram Kishore has already been arrested and sent to jail on 20.07.2023. He shall serve out the remaining period of sentence in terms of the impugned judgment and order dated 07.01.1982 passed by the Trial Court. 22. Office is directed to transmit a certified copy of this judgment and order to the concerned Court for necessary information and compliance. It is further directed that the original record of the case be returned forthwith which shall be kept safely by the trial Court.