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IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, GAUTAM CHOWDHARY, JJ.
Ashiq Ali and Another - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal No. 4702 of 2012
Decided On : 10-02-2021
Dying Declaration - Conviction under Section 302 read with Section 34 of IPC - [IPC Section 302, IPC Section 34] - The court discussed the acceptability of a dying declaration, the requirement of oath and cross-examination, and the need for the declarant to be in a fit state of mind. The court emphasized the importance of evaluating the dying declaration and medical opinions. The judgment relied on various legal provisions and previous decisions to uphold the dying declaration and convict the accused.
Fact of the Case:
Tej Singh met with a tragic death when he was set ablaze at his field. The accused were convicted under Section 302 read with Section 34 of IPC based on the dying declaration of the deceased.
Finding of the Court:
The court found the dying declaration to be credible and upheld the conviction of the accused under Section 302 read with Section 34 of IPC.
Issues: The main issue was the credibility of the dying declaration and whether the accused should be convicted under Section 302 read with Section 34 of IPC.
Ratio Decidendi: The court emphasized the importance of evaluating the dying declaration and medical opinions, and relied on various legal provisions and previous decisions to uphold the dying declaration and convict the accused.
Final Decision: The appeal was partly allowed, and both accused were held guilty of offences punishable under Section 304 Part-I read with 34 of IPC. The default sentence was maintained, and if the accused completed ten years of incarceration, they were to be set free.
JUDGMENT :
Kaushal Jayendra Thaker, J.
1. By way of this appeal, the appellants have challenged the Judgment and order dated 9.11.2012 passed by court of Additional Sessions Judge, Etha in Sessions Trial No.578 of 2005, State Vs. Ashiq Ali and Others arising out of Case Crime No.80 of 2005 under Sections 302/34 I.P.C., Police Station Aliganj, District Etah whereby the accused-appellant was convicted under Section 302 read with Section 34 of IPC and sentenced to imprisonment for life with fine of Rs.5,000/- in each.
2. The brief facts are that Tej Singh met with a very tragic death when he was at his field at night, both the accused came and set him ablaze. He immediately went to police station and conveyed that he was set ablaze by the accused which was ascribed as written report (Exhibit–3) which culminated into FIR which is Exhibit-5. On dying declaration of Tej Singh, which is at Exhibit-15 he named Ashik Ali and Ahmad Raj Khan and stated that on 17.6.2005 at about 10:00 p.m. when he was at fields of Gajroob which is situated at village Agaunapur, in furtherance of their common intention so as to do away. The accused set deceased ablaze by pouring kerosene oil on him. They caused the death of Tej Singh. During the investigation recovery of burn cloths, injury report and post-mortem report were produced on record. The deceased succumbed to his burn injuries that is why accused have been charged with commission of offence under Section 302 read with 34 IPC.
3. The charge sheet was laid before the learned Magistrate and as the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions. The learned Sessions Judge summoned the accused read over charge against them which were framed on 3.1.2006. The accused pleaded not guilty and claimed to be tried.
4. The prosecution so as to bring home the charges examined eleven witnesses, who are as under:-
| 1. | Rajrani | P.W.1 |
| 2. | Ahvaran Singh | P.W.2 |
| 3. | Balram Singh | P.W.3 |
| 4. | Dr. V.K. Dubey | P.W. 4 |
| 5. | A.C. Dubey | P.W. 5 |
| 6. | Narendra Singh | P.W. 6 |
| 7. | Raj Bahadur | P.W.7 |
| 8. | Rajesh Kumar | P.W.8 |
| 9. | Virendra Singh | P.W.9 |
| 10. | Dr. P. K. Gupta | P.W.10 |
| 11. | M.U. Ali | P.W.11 |
5. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
| 1. | F.I.R. | Ext. Ka-5 |
| 2. | Written report | Ext. Ka-3 |
| 3. | Dying declaration -Tej Singh | Ext. Ka-15 |
| 4. | Recovery of memo of Plastic 'Pipiya' | Ext. Ka-1 |
| 5. | Recovery memo of burn Cloth | Ext. Ka-2 |
| 6. | Bed Head Ticket | Ext. Kha-1 |
| 7. | Photo copy of register | Ext. Ka-17 |
| 8. | Injury report | Ext. Ka-16 |
| 9. | P.M. Report | Ext. Ka-4 |
| 10. | Site Plan with Index | Ext. Ka-7 |
6. Learned counsel appearing on behalf of accused-appellants has relied on the decisions in Kushal Rao Versus The State of Bombay, AIR 1958 SC 22, Sharad Birdhichand Sarda Vs. State of Maharastra, S.C. Cr.R. 1985 page 28, Samshul Haque Vs. State of Assam, AIR 2019 SC page 4163, Ashraf Ali Vs. State of Assam, 2008 (3) Crimes (SC) 112, Ranvir Yadav Vs. State of Bihar, 2009 (4) Supreme 205, Sukhjit Singh Vs. State of Punjab, 2014 Supreme (SC) 667, Sujit Biswas Vs. State of Assam, 2013 Supreme (SC) 503 and Maheshwar Tigga Vs. State of Jharkhand, 2020 SC 4535.
7. Learned A.G.A. appearing on behalf of State has relied on the decisions in Govindappa and others Vs. State of Karnataka, (2010) 6 SCC 533, Laxman Versus State of Maharashtra, (2002) 6 SCC 710, Criminal Appeal No.10 of 2000 and Latoor Singh Vs. State of NCT of Delhi decided
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