High Court · 2025 on 09 Jul 2025

Order

"Learned counsel for the revisionists and learned A.G.A. for the State are present. Learned A.G.A. has accepted notice on behalf of opposite party no. 1. Issue notice to opposite party no. 2, returnable at an early date. Steps be taken within a week. Learned A.G.A. as well as opposite party no. 2 may file their respective counter affidavits within two weeks. Rejoinder affidavit, if any, may be filed within one week thereafter. List this as fresh on 06.09.2023. "

6. Subsequent to above order and other orders passed by this Court, as are discernible from the order sheet, office has submitted a report dated

30.1.2024, stating therein that notice issued to first informant/opposite party-2 has been served. However, inspite of service of notice neither any counter affidavit has been filed on behalf of first informant/opposite party-2 in opposition to this criminal revision nor anyone has put in appearance on his behalf to oppose this criminal revision even in revised call.

7. Record shows that an incident is alleged to have occurred on

26.11.2011, in which, one Mahesh sustained burn injury. According to the prosecution, the injured was first taken to Simbhavali Sugar Mill, where first aid was administered to him and thereafter, he was discharged.

8. The injured was then got admitted at Bharat Hospital, Meerut by Prem Veer Singh (PW-2), as is evident from the recital occurring in the Bed Head Ticket of injured Mahesh (deceased), where he was attended and treated by Dr. Amit Bhatnagar (PW-3).

9. As per information sent by Bharat Hospital, Meerut to the police station concerned regarding death of injured Mahesh (deceased) as well as post 3 mortem report of deceased and history sheet/medical report prepared by Dr. Amit Bhatnagar (PW-3), the deceased died on 27.11.2011 at 03:10 a.m. at Bharat Hospital, Meerut.

10. After the death of injured Mahesh (deceased), a belated F.I.R. dated

27.11.2011 was lodged by first informant/opposite party-2 Ganesh Kumar Saini at 09:40 a.m. and was registered as Case Crime No. 342 of 2011, under Sections 147, 323, 302, 120B and 34 IPC, Police Station- Simbhavli, District-Hapur. In the aforesaid F.I.R. five persons namely, Nilesh, Babli, Geeta, Sunita and Rajendra have been nominated as named accused. The last two being the revisionists herein. The FIR is based on heresay as the first informant is not an eye witness of the occurrence, nor it discloses the name of the person from whom, the first informant received information regarding the occurrence..

11. Gravamen of the allegations made in the FIR is to the effect that there was some discord between Mahesh (brother of first informant) and Geeta his wife. As such, Geeta, wife of injured Mahesh (deceased) was residing at her parental home. As per prosecution story, Mahesh is alleged to have gone to the house of his in-laws at Village Peer Nagar, District-Hapur to bring back his wife on 26.11.2011. However, a scuffle is alleged to have taken place, whereafter, all the five accused named in FIR i.e. Neelesh, Babli, Sunita, Geeta and Rajendra are alleged to have committed physical assault (maar-peet) upon Mahesh. It is also alleged that thereafter, they poured petrol upon him and then immolated him. The FIR further states that the occurrence took place around 6:30 p.m. and the injured was got admitted by first informant at Bharat Hospital, Meerut, where he was battling for his life.

12. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He, thereafter, recorded the statements of first informant and other witnesses i.e. (i). Ganesh Kumar Saini (first informant), (ii). Ramesh, (iii). Anil Gujjar, (iv). Prince, (v). Vikram, (vi). 4 Nikhil, (vii). Tejpal Singh Saini, (viii). Ganga Ram, (ix). Chandra Kiran Saini, (x). Mahendra Singh Gujjar, (xi). Jitendra, (xii). Sri Ram Singh, (xiii). Jitendra Kumar (Manager Bharat Hospital), (xiv). Dr. Amit Bhatnagar, (xv). Rahul Tewatiya (employee of Bharat Hospital), (xvi). Rajeev Kummar (Employee of Bharat Hospital), (xvii). Pram Veer Singh and (xviii). IInd statement of Ganesh Kumar under Section 161 Cr.P.C.

13. PW-2 Premveer Singh in his statement under Section 161 Cr.P.C. disclosed that while the injured Mahesh (deceased) was being taken to the hospital, he had made an oral declaration to him, to the effect that his wife Geeta, Sali Sunita and Sala Babli caught him from behind, thereafter, Rajendra Singh poured petrol upom him and ultimately, Sala Lokesh immolated him.

14. PW-3 Dr. Amit Bhatnagar, in his statement under Section 161 Cr.P.C., recorded by the Investigating Officer under Section 161 Cr.P.C. had stated that he had recorded the dying declaration of the injured Mahesh (deceased) before his death on the Bed Head Ticket of the injured Mahesh (deceased), therefore, the Investigating Officer submitted a letter dated

03.12.2011 addressed to the Incharge Medical Officer, Bharat Nursing Home demanding the dying declaration of the injured Mahesh (deceased) recorded by the Doctor. This letter dated 03.12.2011 is part of the case diary. However, the dying declaration of injured Mahesh (deceased) alleged to have been recorded by PW-3 Dr. Amit Bhatnagar was not supplied to the Investigating Officer, as such, it is not part of the case diary. To the contrary, the two medical reports/history sheets and Bed Head Tickets of the injured Mahesh (deceased) were supplied, which are part of the case diary. The first document i.e. history sheet/medical report of deceased is just after site plan prepared by the Investigating Officer. As per this document, it was prepared on 27.11.2011 at 09:30 p.m. However, the same has the thumb impression of the injured Mahesh (deceased), when admittedly, he had died on 27.11.2011 at 03:10 a.m. The second document is also the history sheet/medical report of injured Mahesh 5 (deceased) prepared by PW-3 Dr. Amit Bhatnagar. The same is on record at page 12 of the case diary after the letter of the Investigating Officer dated 03.12.2011. This document is dated 16.12.2011 (the date mentioned besides the signature of PW-3) and also mentions that the deceased died on 27.11.2011 at 03:10 a.m. However, at the top of the document, the date

26.11.2011 and time 09:30 p.m. is mentioned. Both the documents record the factum of disclosure made by the injured Mahesh (deceased).

15. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only three of the named accused i.e. Lokesh, Babli and Sunita is established in the crime in question. He, accordingly submitted the charge sheet/police report dated 19.2.2012 in terms of Section 173(2) Cr.P.C., whereby aforementioned named accused were charge sheeted under sections 147, 302, 323 and 34 IPC whereas the other two named accused namely Rajendra and Geeta i.e. revisionist herein were exculpated.

16. Upon submission of above-mentioned charge sheet, concerned Magistrate took cognizance upon same in exercise of jurisdiction under Section 190(1)(b) Cr.P.C.. However, as offence complained of is triable exclusively by the Court of Sessions, consequently, the Jurisdictional Magistrate first complied with the formality contemplated under Section 207 Cr.P.C. i.e. supply of documents to charge sheeted accused and then in compliance of Section 209 Cr.P.C., committed the case to Court of sessions. Resultantly, Sessions Trial No. 55 of 2013 (State Vs. Lokesh and Others) under sections 147, 323, 302, 120B and 34 IPC, Police Station- Simbhavli, District Hapur came to be registered and is now pending in the Court of Additional District and Sessions Judge-Ist, Hapur.

17. Concerned Sessions Judge, accordingly, proceeded with the trial. He, therefore, in compliance of Section 228 Cr.P.C. framed charges against charge sheeted accused who denied the same, pleaded innocence and demanded trial. Resultantly, the trial procedure commenced. 6

18. Prosecution in discharge of it’s burden to bring home the charges so famed against charge sheeted accused, adduced three prosecution

witnesses up to this stage, namely, P.W.1- Ganesh Kumar Saini (first informant-brother of injured Mahesh (deceased)), P.W.2- Premveer Singh (brother-in-law/Jija of injured Mahesh (deceased) and P.W.3-Dr. Amit Bhatnagar, who had attended and treated injured Mahesh (deceased) at Bharat Hospital, Meerut.

19. In the light of depositions of aforesaid witnesses, an application dated

23.11.2021, under section 319 Cr.P.C. was filed by the prosecution (first informant/opposite party-2 Ganesh Kumar Saini) alleging therein that since as per the depositions of above-mentioned witnesses recorded before Court below, complicity of Rajendra and Geeta named accused but exculpated i.e. the revisionists herein has also emerged in the crime in question, therefore, they be also summoned to face trial in aforementioned Sessions Trial.

20. The application dated 23.11.2021 was opposed by the defence (charge sheeted accused) and they filed their objections dated 21.2.2022 to the same.

21. Is is apposite to mention here that while strong reliance was placed by the prosecution on the deposition of P.W.3-Dr. Amit Bhatnagar as according to this witness, there was an oral dying declaration made by the deceased to him, wherein the act of pouring petrol upon deceased is assigned to revisionist-1 Rajendra Singh, there was material on record to the effect that revisionist-1 who is an Army personnel was present at the place of his posting i.e. Meerut Cantonment on the date of occurrence and no leave was sanctioned to him on the day of occurrence.

22. Consequently, Court below before proceeding to decide the aforementioned application under section 319 Cr.P.C. summoned one Colonel Arun Hari Haran, who was posted as Colonel General staff in Sub Area, Meerut Head Quarter, the immediate superior of revisionist 7 Rajendra Singh as a Court witness, to examine the credibility of alibi emerging against revisionist-1 Rajendra Singh.

23. CW-1 Colonel Arun Hariharan in his deposition before Court below stated that he was posted as Colonel General Staff in Meerut Sub Area from August-2011 to August-2013. He received information from Subedar Rajendra Singh on 26.11.2011 at around 06:00 p.m. that his Saadhu Mahesh (deceased) has committed suicide. This witness has further deposed that Subedar Rajendra Singh was present in the Sub Area from

26.11.2011 to 28.11.2011. No leave was sanctioned to Subedar Rajendra Singh for the aforesaid period. In the penultimate part of his examination- in-chief, he has further stated Subedar Rajendra Singh was seen by him at around 04:30 p.m. On a specific question being asked as to how much time it will take to reach Simbhavli from Meerut Cantt., this witness upon perusing the google map stated that it will take approximately 2 hours.

24. Ultimately, Court below, upon appraisal and appreciation of the material on record, came to the conclusion that since prima facie complicity of revisionists has also emerged in the crime in question, as per the depositions of the prosecution witnesses adduced upto this stage i.e. PW-1, PW-2 and PW-3 and the oral dying declaration made by the deceased to PW-3 Dr. Amit Bhatnagar, therefore, by means of an order dated 9.6.2023, Court below allowed the application under section 319 Cr.P.C filed by first informant/opposite party-2 and summoned the revisionists to face trial in concerned Sessions Trial.

25. Perusal of the order dated 09.06.2023 will go to show that Court below for allowing the application under Section 319 Cr.P.C. has recorded the following findings;- (i). The deposition of CW-1 Colonel Arun Hariharan is unworthy of reliance as this witness has not stated that Subedar Rajendra Singh was in front of his eyes from 26.11.2011 to 28.11.2011. (ii). The first information report was lodged against Rajendra and Sunita along with other named accused. 8 (iii). PW-1 and PW-2 have mentioned the names of Rajendra Singh and his wife Sunita for committing the crime in question along with the names of other named accused. (iv). Injured Mahesh (deceased) in his dying declaration has mentioned the name of Rajendra, wherein the role of pouring petrol upon his person has been assigned to Rajendra Singh, whereas the act of torching has been assigned to named accused Lokesh. (v). The dying declaration of the injured Mahesh (deceased) cannot be ignored. (vi). As such, in the light of facts and circumstances as have emerged on record, as well as the evidence on record, prima-facie the revisionists Rajendra Singh and Sunita are liable to be summoned to face their trial for committing the crime in question.

26. Thus feeling aggrieved by the above order dated 9.6.2023, passed by the Additional District and Sessions Judge, 1st, Hapur, revisionists have now approached this Court by means of present criminal revision.

27. Mr. Rajiv Kumar Singh, the learned counsel for revisionists in challenge to the order impugned contended that the order impugned in present criminal revision is not only illegal but also in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court.

28. Elaborating his aforesaid submission, the learned counsel for revisionists submitted that revisionists were nominated as named accused in the F.I.R. However, investigating Officer during course of investigation did not find/collect any such material on the basis of which, complicity of present revisionists in the crime in question could be said to be even prima-faice apparent. He, accordingly exculpated the present revisionists in the charge sheet/police report dated 9.2.2012 submitted by him. However, no protest petition was filed by the prosecution i.e. first informant/opposite party-2 to the said police report. Consequently, the 9 prosecution was estopped from filing an application under Section 319 Cr.P.C., for summoning the revisionists to stand their trial in concerned Sessions Trial.

29. According to the learned counsel for revisionists, Investigating Officer who had investigated the concerned case crime number and had also submitted the police report dated 19.2.2012, has not yet been examined before Court below. It is only when, the statement-in-chief/examination- in-chief of the Investigating Officer is recorded that Court below could come across the material on the basis of which, present revisionists were exculpated by the Investigating Officer. It was thus urged by the learned counsel for revisionists that in view of above, Court below ought to have deferred the disposal of application under section 319 Cr.P.C. filed by prosecution till the deposition of Investigating Officer was not recorded. As such Court below has pre-empted the disposal of application under section 319 Cr.P.C.

30. It was next contended by the learned counsel for revisionists that statements of P.W.1- Ganesh Kumar Saini, P.W.2- Premveer Singh P.W.3- Dr. Amit Bhatnagar were also recorded by the Investigating Officer under section 161 Cr.P.C. However, nothing strong and cogent emerged in their statements so as to even infer the complicity of present revisionists in the crime in question.

31. While PW-1 Ganesh Kumar Saini (first informant-brother of injured Mahesh (deceased)) in his statement under Section 161 Cr.P.C. has neither disclosed the name of the person from whom, he received information regarding the occurrence nor the time when said information was received by him. As such, the FIR is prima-facie based upon heresay. He has also not disclosed that the injured Mahesh (deceased) had made an oral dying declaration to him. Apart from above, the time, he met the injured Mahesh (deceased) at the hospital has also not been disclosed.

32. However, this witness in his deposition before Court below has for the 10 first time stated that the injured Mahesh (deceased) had made an oral dying declaration to him that Lokesh, Babli, Sunita and Geeta first indulged into a brawl with injured Mahesh (deceased), thereafter, they assaulted him, then poured petrol upon him and ultimately set him ablaze. However, in the FIR, 5 persons namely (1) Lokesh, (2) Babli, (3) Geeta, (4) Sunita and (5) Rajendra have been nominated as named accused. The FIR was lodged after the death of the injured Mahesh (deceased). As such, PW-1, who had lodged the FIR did not support the FIR as the complicity of all the named accused nominated in the FIR was not alleged in his deposition before Court below. As such, the manner of occurrence in the FIR and the oral dying declaration alleged to have been made by the injured Mahesh (deceased) to PW-1 are not similar, therefore, inconsistent. Thus no reliance could be placed upon same.

33. PW-2 Premveer Singh, in his previous statement under Section 161 Cr.P.C., has stated that the injured Mahesh (deceased) while being taken to the hospital had made an oral declaration to him that Geeta (wife), Sunita (sister-in-law) and Babli (brother-in-law) caught him from behind, thereafter, Rajendra (Sadhu) poured petrol on his person and then Lokesh (his brother-in-law) immolated him. However, this witness in his deposition before Court below has alleged that Sadhu Rajendra Singh, Sali Sunita, wife Geeta and Sala Bablu and Sala Lokesh, the three Sali Sunita, wife Geeta and Sala Babli caught Mahesh from behind, then Rajendra Singh poured petrol on his person and thereafter, Lokesh immolated him. It is thus apparent that the manner of occurrence as alleged to have been disclosed by Mahesh has been narrated differently by PW-2 in his deposition before Court below, from the narration previously made by him in his statement under Section 161 Cr.P.C., as an anomaly exists in the names Babli and Bablu in his deposition before Court below, which remains unexplained. As per the deposition of this witness, it is not explicitly clear as to whether one of the accused is Bablu or Babli.

34. PW-3 Dr. Amit Bhatnagar in his deposition before Court below has 11 stated that the injured Mahesh (deceased) had made an oral dying declaration to him that an unknown person caught him from behind, Rajendra Singh, thereafter, poured petrol on his person and ultimately, Lokesh immolated him. Whereas this witness in his previous statement under Section 161 Cr.P.C. has stated that he had recorded the dying declaration of injured Mahesh (deceased) on the Bed Head Ticket of injured Mahesh (deceased) and the said dying declaration is lying safe at the hospital. Two witnesses namely Rajeev Kumar and Rahul Tetiya, who are employees of Bharat Hospital, Meerut, in their statements under Section 161 Cr.P.C., before the Investigating Officer, had stated that the dying declaration of deceased was recorded on the history sheet/medical report of injured Mahesh (deceased) by PW-3 Dr. Amit Bhatnagar. The Investigating Officer had, accordingly, submitted a letter dated 03.12.2011 to the Medical Officer Incharge, Bharat Nursing Home, Meerut demanding the copy of dying declaration of the deceased recorded by the Doctor. However, the same was not supplied to the Investigating Officer and therefore, the same is not part of the case diary. The same has not been filed/adduced in evidence before Court below either. In response to the said letter, the history sheets/medical reports of the injured Mahesh (deceased) were supplied to the Investigating Officer. Both the history sheets/medical reports have been referred to in the preceding part of this judgment. However, the recital occurring in the aforesaid history sheets/ medical reports cannot be treated as the dying declaration of deceased as the exact words uttered by the deceased have not been mentioned therein.

35. On the above premise, the learned counsel for revisionists thus urged that a paradoxical situation has emerged inasmuch as, while the revisionists were exculpated by the Investigating Officer but almost on the same evidence, they have been summoned by Court below to face trial. At this juncture, the learned counsel for revisionists invited the attentionof Court to the judgment of Supreme Court in Mani Pushpak Joshi vs. State of Uttarakhand and Another, (2019) 9 SCC 805, wherein the 12 Apex Court scrutinized the deposition of the witnesses on the basis of which, the prospective accused was summoned by the Trial Court. It was thus contended by the learned counsel for revisionists that when the depositions of PW-1, PW-2 and PW-3 are scrutinized analytically, no cast iron case can be said to be made out for summoning the revisionists to face trial.

36. Referring to the judgement of Supreme Court in Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706, it was urged by the learned counsel for revisionists that Court while deciding an application under section 319 Cr.P.C, can summon a prospective accused on the strength of the statement-in-chief of one prosecution witness, but provided something new has emerged in the deposition of witnesses, than what was stated by him in his previous statement under section 161 Cr.P.C. Apart from above, the Court is also under a legal obligation to consider the plethora of material collected by Investigating Officer during course of investigation before summoning a prospective accused, as it is a relevant material. However, in no circumstance, Court can summon a prospective accused merely on the basis of his complicity in the crime in question. Court below has neither returned a finding that depositions of P.W.1- Ganesh Kumar Saini, P.W.2- Premveer Singh P.W.3-Dr. Amit Bhatnagar discloses new facts which were not stated in their previous statements under section 161 Cr.P.C. nor has it considered the material collected by the Investigating Officer during course of investigation as no finding in that regard is recorded in the impugned order. PW-1 and PW-2 are not an eye witness of the occurrence. However, they have alleged that the injured Mahesh (deceased) had made an oral dying declaration to them regarding the manner of occurrence. PW-3 Dr. Amit Bhatnagar in his previous statement under Section 161 Cr.P.C. had stated that he had recorded the dying declaration of deceased on the Bed Head Ticket of injured Mahesh (deceased), whereas this witness in his deposition before Court below stated that the injured Mahesh (deceased) had made an oral dying 13 declaration to him. However, the three oral dying declarations alleged to have been made by the injured Mahesh (deceased) to aforementioned witnesses are not identical and similar. In spite of above, no attempt was made by Court below to decide the acceptability/reliability of the aforementioned oral dying declarations. Consequently, the same cannot be treated as evidence but mere hypothesis and therefore, no reliance could have been placed upon them by Court below. As such, Court below has not exercised it’s jurisdiction diligently and has thus erred in summoning the revisionists to stand their trial as no cast iron case can be said to be made out for summoning the revisionists to face trial.

37. Reliance was also placed upon the Five Judges Bench judgment of the Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, wherein Court has observed regarding the degree of satisfaction, which is required to be recorded before summoning a prospective accused. Learned counsel for revisionists referred to paragraph 106 of the report in support of this submission that a certain degree of satisfaction is required to be recorded on the material on record before summoning a prospective accused. Accordingly, the same is reproduced herein below;-

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross- Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

38. With reference to above, the learned counsel for revisionists urged that 14 from perusal of impugned order, it is apparent that no such satisfaction as is required in law was recorded by Court below in the light of material on record, as in the absence of any finding regarding the acceptability/reliability of all the three oral dying declarations or either of them alleged to have been made by the injured Mahesh (deceased) to PW- 1, PW-2 and PW-3, there was no evidence on record, on the basis of which, Court below could record it’s satisfaction in the same manner as observed by the Apex Court as noted herein above. .

39. It was further submitted by the learned counsel for revisionists that in the present case, Court below has relied upon the deposition of P.W.3 Dr. Amit Bhatnagar, who has alleged that a disclosure (dying declaration) was made by the deceased to him before his death, regarding the manner of occurrence, as noted in the second last paragraph of the impugned order (the role of pouring petrol upon the deceased is assigned to revisionist-1). In fact, from the tenure of the impugned order, it is evident that Court below was swayed away by the deposition of PW-3. However, in the said statement nothing has been averred in respect of revisionist-2, Sunita wife of revisionist-1 Rajendra Singh. This aspect has been completely ignored by Court below, while passing the impugned order. As such, even though, the complicity of revisionist-2 Sunita has not emerged in the deposition of PW-3 yet Court below has summoned revisionist-2 to face trial, which is manifestly illegal.

40. According to the learned counsel for revisionists, the alleged disclosure (dying declaration) made by the injured Mahesh (deceased) to PW-3 as disclosed by P.W.-3, Dr. Amit Bhatnagar, who is a private Doctor, in his deposition before court below cannot be treated as an oral dying declaration. This witness in his previous statement under Section 161 Cr.P.C. has stated that he had recorded the dying declaration of injured Mahesh (deceased) on the Bed Head Ticket of injured Mahesh (deceased) and the same is lying safe at the hospital. Accordingly, the Investigating Officer had given an application dated 03.12.2011 to the 15 Incharge Medical Officer, Bharat Nursing Home, Meerut demanding the copy of dying declaration of deceased recorded by the Doctor. However, the same was not supplied to the Investigating Officer and therefore, the same is not part of the case diary. To the contrary, the history sheets/medical reports of the injured Mahesh (deceased) prepared by Dr. Amit Bhatnagar PW-3 were supplied to the Investigating Officer. This witness prepared the history sheet/medical report of the injured Mahesh (deceased). However, in the case diary, there are two history sheets/medical reports of the injured Mahesh (deceased) prepared by PW- 3 Dr. Amit Bhatnagar. The first document i.e. history sheet/medical report of deceased is just after site plan prepared by the Investigating Officer. As per this document, it was prepared on 27.11.2011 at 09:30 p.m. However, the same has the thumb impression of the injured Mahesh (deceased), when admittedly, he had died on 27.11.2011 at 03:10 a.m. The second document is also the history sheet/medical report of injured Mahesh (deceased) prepared by PW-3 Dr. Amit Bhatnagar. The same is on record at page 12 of the case diary after the letter of the Investigating Officer dated 03.12.2011. This document is dated 16.12.2011 (the date mentioned besides the signature of PW-3) and also mentions that the deceased died on 27.11.2011 at 03:10 a.m. However, at the top of the document, the date

26.11.2011 and time 09:30 p.m. is mentioned. Both the documents record the factum of disclosure made by the injured Mahesh (deceased). Two witnesses examined by the Investigating Officer namely Rajeev Kumar and Rahul Tetiya, in their statements under Section 161 Cr.P.C. have stated that the dying declaration of injured Mahesh (deceased) was recorded on the history sheet/medical report. PW-3 Dr. Amit Bhatnagar has only proved the history sheet/medical report dated 26.11.2011, which was marked as Ext-Ka-2. However, in both the history sheets/medical reports, the exact words uttered by the injured Mahesh (deceased) have not been mentioned. As such, the recital occurring in the aforesaid documents regarding the manner of occurrence alleged to have been 16 disclosed by the injured Mahesh (deceased) cannot be treated as dying declaration of the deceased. No attempt was made by Court below to examine the applicaton under Section 319 Cr.P.C. filed by the prosecution in the light of above.

41. Furthermore, in view of clinching and convincing evidence that revisionist-1 is an Army personnel and his immediate superior namely Colonel Arun Hariharan in his deposition before Court below as C.W.1 has clearly and categorically stated that on the date of occurrence, revisionist-1 was present at the place of his duty and had not been granted leave. He was seen by him on 26.11.2011 at 04:30 p.m. Further, Subedar Rajendra Singh informed him at around 06:00 p.m. that his Sadhu Mahesh has committed suicide. On a specific question being put to this witness as to how much time it will take to reach Simbhavli from Meerut Cantt., this witness after perusing the google map, replied that it will take approximately two hours. Therefore, prima-facie the alleged oral dying declaration alleged to have been made by the deceased to P.W.3 is not worthy of acceptance/reliance as it does not stand corroborated. Moreover, no finding regarding acceptability and reliability of the aforesaid oral dying declaration made by the injured Mahesh (deceased) has been recorded by Court below nor the same stands corroborated upto this stage.

42. Learned counsel for revisionists invited the attention of Court to the supplementary affidavit filed by him. He referred to paragraph 4 of the said affidavit and on basis thereof, it was contended by him that revisionist-2 Sunita was admitted in Vijay Shree Nursing Home, Muzaffar Nagar on 24.11.2011 and was discharged on 27.11.2011. In view of above, revisionist-2 could not have been present at the time and place of occurrence. As such, she has been falsely implicated in the crime in question.

43. It was lastly contended by the learned counsel for revisionists that jurisdiction under section 319 Cr.P.C. is not to be exercised in a routine 17 manner but sparingly, as power conferred under Section 319 Cr.P.C. is an extra-ordinary discretionary power. Courts while considering an application under section 319 Cr.P.C. cannot summon a prospective accused simply on the basis of his mere complicity in the crime in question. In view of the law laid down by Apex court in S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Court has to find out whether strong and cogent evidence which is much more than mere complicity of a prospective accused has emerged as per statements of prosecution witnesses before summoning a prospective accused. No finding in this regard has been returned by Court below in the impugned order either.

44. Court below has not even dealt with the reliability/acceptability of the alleged oral dying declaration alleged to have been made by the deceased to PW-3 Dr. Amit Bhatnagar on the one hand and the other two dying declarations alleged to have been made to PW-1 and PW-2 on the other hand, in the light of attending circumstances. In short, the submission was that no attempt was made by Court below to find out as to whether the alleged oral dying declarations alleged to have been made by the deceased to PW-1, PW-2 and PW-3, stand corroborated from the record or not and whether the same are prima-facie worthy of reliance/acceptance. The said exercise was essential in the facts of the case as there were three oral dying declarations alleged to have been made by the injured Mahesh (deceased) are neither similar nor identical. In fact, they all are in sharp contrast to each other. In the absence of any finding recorded by Court below in view of above, no strong and cogent evidence against revisionists can be said to have emerged against revisionists warranting their summoning by Court below to stand their trial. As such, revisionists have been summoned by Court below on the basis of mere hypothesis and not evidence. On the above conspectus, the learned counsel for revisionists thus contended that order impugned is arbitrary and therefore, cannot be sustained and thus liable to be set aside by this Court. 18

45. Per contra, the learned A.G.A. representing State-opposite party-1 opposed the present criminal revision. He submitted that order impugned is perfectly just and legal. Court below has exercised its jurisdiction judiciously and not with material irregularity. As such, order impugned is not liable to be interfered with by this Court. According to the learned A.G.A., Court below has summoned the revisionist in aforesaid Sessions Trial on the basis of depositions of the three prosecution witnesses i.e. PW-1 Ganesh Kumar Saini (first informant), PW-2 Premveer Singh and PW-3 Dr. Amit Bhatnagar, who have deposed before Court below up to this stage. Since the examination-in-chief (cross examination) of the said witnesses had already been recorded before Court below, therefore, their depositions fall in the realm of legal evidence. As such, no reliance can be placed upon their previous statements recorded under sections 161 Cr.P.C. at this stage. Revisionists will have adequate opportunity to contradict the aforementioned prosecution witnesses examined up to this stage with their previous statements recorded under Section 161 Cr.P.C. during the course of trial.

46. According to the learned A.G.A. the order impugned cannot be faulted on the ground that Court below has pre-empted the disposal of application under section 319 Cr.P.C. inasmuch as the Investigating Officer who had conducted the investigation of concerned case crime number and had also submitted the police report has not been examined as yet. In view of the law laid down by Five Judges Bench judgment of Apex Court in Hardeep Singh (Supra), it is not necessary for the Court dealing with an application under Section 319 Cr.P.C. to defer the disposal of an application under section 319 Cr.P.C. till the deposition of the Investigating Officer is recorded as a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness. It was thus urged by the learned A.G.A. that it was not at all necessary to defer the disposal of application under Section 319 Cr.P.C. till the Investigating Officer was examined. As such, no illegality has been 19 committed by Court below in summoning the revisionist to face trial on the strength of depositions of the three prosecution witnesses, who have deposed before Court below up to this stage.

47. Learned A.G.A. also submitted that plea raised on behalf of revisionists that since no objection/protest petition was filed by first informant against the Police report dated 19.2.2012 and therefore, the application under section 319 Cr.P.C. was not maintainable is misconceived, inasmuch as neither estoppel nor acquiescence can be pleaded against prosecution for not having filed protest petition to the charge sheet/police report. Moreover, the issue raised herein has already been set at rest by Apex Court in Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368, wherein Court has held that even if, no protest petition was filed against the charge sheet/police report, the same cannot be an impediment in filing an application under Section 319 Cr.P.C.

48. In the submission of learned A.G.A. the complicity of revisionist-1, Rajendra Singh has emerged in the crime in question as per the oral dying declaration made by the injured Mahesh (deceased) to PW-3, Dr. Amit Bhatnagar, wherein the deceased made a disclosure to P.W.-3 qua the manner of occurrence. As per the said oral dying declaration, the role of pouring petrol upon the injured Mahesh (deceased) has been assigned to Rajendra Singh, revisionist-1.

49. According to learned A.G.A., the very credibility of P.W.3 could not be contradicted nor it stood diluted nor the same is not unworthy of reliance even in view of the statement of C.W.1, Colonel Arun Hari Haran.

50. On the above conspectus, learned A.G.A. thus contended that present criminal revision does not involve any question of law and fact. The findings returned by Court below are pure findings of fact, which could not be dislodged as being illegal, perverse or erroneous. As per the 20 depositions of PW-1, PW-2 and PW-3, since prima-facie the complicity of revisionists in the crime in question stands emerged therefore, this court in exercise of revisional jurisdiction is not required to conduct a mini trial to flush out the innocence of revisionists as observed by the Apex Court in the case of Yashodhan Singh and Others Vs. State of Uttar Pradesh and Another, (2023) 9 SCC 108. Moreover, once the findings recorded by Court below in the order impugned could not be dislodged, the conclusion cannot be altered. Present criminal revision thus stands concluded by findings of fact. Neither any illegality has been committed by Court below in passing the order impugned nor Court below has committed a jurisdictional error in passing the order impugned. As such, present criminal revision is liable to be dismissed by this Court.

51. Having heard the learned counsel for revisionists, the learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination in present revision is: Whether the order impugned in present criminal revision can be justified on the basis of the depositions of three prosecution witnesses but in ignorance of the material on record i.e. papers in the case diary? Secondly, whether the Court below without deciding the reliability and acceptability of the three oral dying declarations alleged to have been made by the injured Mahesh (deceased) to PW-1, PW-2 and PW-3 respectively could rely on any one of them or all, even when the same are contradictory to each other thus inconsistent and therefore, irreconcilable.

52. Apart from the deposition of the aforementioned three prosecution witnesses, who have deposed before Court below, there was on record other material also, which has either been referred to in the order impugned or was required to be looked into by Court below while exercising jurisdiction under Section 319 Cr.P.C. For ready reference, the same is summarized herein under in chronological order;- (i). The occurring giving rise to present criminal proceedings is alleged to have occurred on 26.11.2011 at 06:30 p.m. at Village Peer Nagar, District- Hapur, in which, one Mahesh sustained burn injury. 21 (ii). The injured Mahesh (deceased) was taken to Simbhavli Sugar Mill, where he was administered first aid and thereafter, discharged. (iii). Subsequent to above, the injured Mahesh (deceased) was taken by PW-2 Premveer Singh (brother-in-law/Jija of Mahesh) for getting him admitted to the hospital. On the way, the injured Mahesh (deceased) is alleged to have made an oral declaration to PW-2 Premveer Singh regarding the manner of occurrence. (iv). Injured Mahesh (deceased) was got admitted at Bharat Hospital Meerut on 26.11.2011 at 08:55 p.m. by PW-2 Premveer Singh as is evident from the endorsement made in the Bed Head Ticket of injured Mahesh (deceased). (v). PW-3 Dr. Amit Bhatnagar attended and treated the injured Mahesh (deceased). He prepared the history sheets/medical reports dated

26.11.2011 and 27.11.2011. (vi). The history sheet/medical report dated 26.11.2011 mentions the aforesaid date at the top with the timing 09:30 p.m. but at the bottom besides the signature of PW-3 Dr. Amit Bhatnagar, the date 16.12.2011 is mentioned. (vii). The history sheet/medical report dated 27.11.2011 with the timing 09:30 p.m. depicts the thumb impression of injured Mahesh (deceased). (viii). Both the history sheets/medical reports record the cause as well as the manner of occurrence as alleged to have been disclosed by the injured Mahesh (deceased). However, the exact words uttered by the injured Mahesh (deceased) have not been incorporated therein. (ix). In the case diary, there are two history sheets/medical reports of injured Mahesh (deceased) referred to above. However, PW-3 Dr. Amit Bhatnagar has proved only one of the history sheet/medical report dated

26.11.2011, which has been marked as Ext- Ka-2. 22 (x). The injured Mahesh (deceased) died on 27.11.2011 at 03:10 a.m. in the hospital. (xi). Thereafter, a belated FIR 27.11.2011 at 09:40 a.m. was lodged by PW-1 Ganesh Kumar Saini (first informant), wherein 5 persons namely (1) Nilesh, (2) Babli, (3) Geeta, (4) Sunita and (5) Rajendra were nominated as named accused. (xii). The FIR discloses that first informant received an information on his mobile phone regarding the occurrence. As such, first informant is not an eye witness of the occurrence. The FIR is based on heresay. The recital occurring in the FIR that the first informant got the injured Mahesh (deceased) admitted at Bharat Hospital Meerut and that the injured was battling for his life are false inasmuch as, the injured was got admitted by PW-2 Premveer Singh and secondly, the FIR was lodged after the death of injured Mahesh (deceased). (xiii). Statement of PW-1 Ganesh Kumar Saini was recorded under Section 161 Cr.P.C. However, this witness in his statement has not disclosed the name of the person from whom, he received the information regarding the occurrence nor the timing as to when the said information was received. He has further not declared the time he met the injured Mahesh (deceased) at the hospital. He has also not disclosed that an oral declaration was made by the injured Mahesh (deceased) to this witness. (xiv). Deposition of PW-1 Ganesh Kumar Saini before Court below. (xv). The emergence of the first oral dying declaration in the deposition of PW-1, which is alleged to have been made by the injured Mahesh (deceased) to PW-1 Ganesh Kumar Saini before this death. As per the said oral dying declaration, Lokesh, Babli, Sunita and Geeta committed the crime in question. Thus the said dying declaration does not completely support the FIR. The complicity of named accused Rajendra and Nilesh has not surfaced in the alleged oral dying declaration, whereas, the complicity of not named accused Lokesh has emerged in the crime in 23 question. Admittedly, the FIR was lodged after the death of injured Mahesh (deceased). The oral dying declaration must have been made to PW-1 before his death. Yet there is inconsistency in the manner of occurrence as stated in the FIR and in the oral dying declaration alleged to have been made by the injured to PW-1. (xvi). The statement of PW-2 Premveer Singh recorded under Section 161 Cr.P.C. This witness in his statement has alleged that an oral declaration was made by the injured Mahesh (deceased) that his wife Geeta, Sali Sunita and Sala Babli caught him from behind, thereafter, Rajendra Singh poured petrol upon him and then Lokesh immolated him. Admittedly, Lokesh is not named in the FIR and no allegation has been made against named accused Nilesh. As such, the second dying declaration alleged to have been made by the injured Mahesh (deceased) has emerged in the statement of PW-2 Premveer Singh but the manner of occurrence emerging in the second oral dying declaration is different from the one stated in the FIR. (xvii). The deposition of PW-2 Premveer Singh before Court below. As per the narration of PW-2 before Court below, it is alleged by PW-2 that the injured Mahesh (deceased) had disclosed that his (Sadhu) Rajendra Singh, (Sali) Sunita, (wife) Geeta, (Sala) Bablu, Sala (Lokesh), the three Sali Sunita, Wife Geeta, and Sala Babli caught him from behind then Sadhu Rajendra Singh poured petrol on him and Sala Lokesh alighted the fir. Thus there is contradiction in the statement as at one place the word ‘Bablu” has been mentioned, whereas at the second place, the word Babli has been mentioned. This IInd oral dying declaration is not similar to the narration occurring in the FIR. (xviii). The statement of PW-3 Dr. Amit Bhatnagar (who had attended and treated the injured Mahesh (deceased), when he was admitted at Bharat Hospital, Meerut) recorded under Section 161 Cr.P.C. (xix). The emergence of the fact in the statement under Section 161 24 Cr.P.C. of Dr. Amit Bhatnagar that the dying declaration of injured Mahesh (deceased) was recorded by this witness on the Bed Head Ticket of injured Mahesh and the same is lying safe in the hospital. (xx). Subsequently, in view of the statement of PW-3 Dr. Amit Bhatnagar, the Investigating Officer submitted a letter dated 03.12.2011 to the Incharge, Medical Officer, Bharat Nursing Home, Meerut demanding the copy of dying declaration of the injured Mahesh (deceased) recorded by the Doctor. (xxi). However, at no point of time, the said dying declaration was supplied to the Investigating Officer, as such, the same is not part of the case diary nor the same was filed/adduced in evidence before Court below. (xxii). Rajeev Kumar and Rahul Tetiya, who are employees of Bharat Hospital, in their statements under Section 161 Cr.P.C., have stated that the dying declaration of injured Mahesh (deceased) was recorded on the history sheet/medical report of injured Mahesh (deceased) prepared by Dr. Amit Bhatnagar (PW-3). However, the two history sheets/medical reports only record that an oral declaration regarding the manner of occrrence was disclosed by the injured Mahesh (deceased). The same cannot be treated as dying declaration of injured Mahesh (deceased) as the exact words uttered by the injured Mahesh (deceased) have not been incorporated. (xxiii). The deposition of PW-3 Dr. Amit Bhatnagar before Court below, wherein he has departed from his previous statement under Section 161 Cr.P.C. and has now stated that an oral dying declaration was made by the injured Mahesh (deceased) to him. As per the said oral dying declaration, some unknown person caught the injured Mahesh (deceased) from behind, thereafter, Rajendra Singh poured petrol on his person and then Lokesh immolated him. (xxiv). It is thus apparent that PW-1 and PW-2 are not an eye witness of 25 occurrence. PW-3 is the Doctor. All the three prosecution witnesses i.e. PW-1, PW-2 and PW-3 have alleged that an oral dying declaration was made by the injured Mahesh (deceased) to them but all the three oral dying declarations are different to each other and therefore, there is no consistency in the same. (xxv). The deposition of CW-1 Colonel Arun Hariharan, who in his deposition before Court below has clearly and categorically stated that Subedar Rajendra Singh was posted under him. Subedar Rajendra Singh on 26.11.2011 at around 06:00 p.m. had disclosed to him that Mahesh, his Sadhu has committed suicide. No leave was sanctioned to Subedar Rajendra Singh from 26.11.2011 to 28.11.2011. This witness has further stated that he had seen Subedar Rajendra Singh at 04:30 p.m. at Meerut Cantt. According to this witness, it will take 2 hours from Meerut Cantt. to reach Simbhavli. (xxvi). The statements of independent witnesses namely (1) Ramesh, (2) Anil Gujjar, (3) Prince, (4) Vikram Singh, (5) Nikhil, (6) Tejpal Singh, (7) Ganga Ram, (8) Kiran Saini, (9) Mahendra Singh Gujjar, (10) Jitendra and (11) Ram Singh, who in their statements recorded under Section 161 Cr.P.C. have stated that the injured Mahesh took out petrol from his motorcycle by dipping a piece of clothe, thereafter, poured the same upon himself and then immolated himself. (xxvii). The recovery of motor cycle of injured Mahesh (deceased) from the place of occurrence by the Investigating Officer, vide recovery memo dated 29.11.2011. (xxviii). The admission slip/discharge slip dated 27.11.2011 of revisionist- 2 Smt. Sunita (Annexure-S.A.-2 to the supplementary affidavit dated

25.08.2023). However, the said document is not part of the case diary. (xxix). During investigation nor in his deposition before Court below, the first informant Ganesh Kumar Saini (PW-1) has disclosed the name of the person, who gave him the information regarding the occurrence in 26 question nor the Investigating Officer has obtained the CDR report of the mobile phone of first informant Ganesh Kumar Saini. As such, how the first informant PW-1 acquired information about the incident in question is a mystery. The said fact has not been investigated by the Investigating Officer.

53. Before proceeding to answer the said questions (as formulated in paragraph-51 of this judgment), it shall be useful to analytically discuss the material tabulated above.

54. PW-1, Ganesh Kumar Saini is the brother of injured Mahesh Chandra (deceased). He is also the first informant. He lodged the FIR. As per the prosecution story unfolded in the FIR, it is alleged that some villager of Village-Peer Nagar, District-Hapur informed first informant on his mobile phone regarding the incident in question. Consequently, the FIR is based on heresay. As such, this witness is not an eye witness of the incident in question. After receipt of the aforesaid information, as per the FIR, this witness alleges that he got injured Mahesh Chandra admitted at Bharat Nursing Home, Meerut. However, the time of admission is not disclosed. The FIR further gives a vivid description of the cause of occurrence as well as the manner of occurrence. It further records that the injured Mahesh (deceased) was battling for his life at the Hospital.

55. However, in the FIR, there is no disclosure of the Oral Dying Declaration of the deceased alleged to have been made by the deceased to this witness. Secondly, as per the recital occurring in the FIR, the injured Mahesh (deceased) was got admitted at Bharat Hospital by this witness and further the injured was alleged to be battling for his life at Bharat Hospital, Meerut. The same are incorrect inasmuch as, firstly the FIR was lodged on 27.11.2011 at 09:40 a.m., when admittedly, the deceased had died on 27.11.2011 at 03:10 a.m., which fact is established from the information sent by the Hospital to the police station, the post mortem report of the deceased and the history sheet/medical report prepared by Dr. Amit Bhatnagar. Secondly, as per the history sheet/medical report 27 dated 26.11.2011 prepared by PW-3 Dr. Amit Bhatnagar as well as the Bed Head Ticket of injured Mahesh (deceased), he was brought to the hospital by PW-2 Premveer Singh. As such, the prosecution story unfolded in the FIR does not prima-facie inspire confidence.

56. Subsequently, the statement of first informant Ganesh Kumar Saini was recorded under Section 161 Cr.P.C. This witness in his statement has again not stated that the deceased had made an oral declaration to him nor has he disclosed the name of the person, who informed him about the occurrence or the time when aforesaid information was received by him. He has, however, stated that when he reached the Hospital after lodging the FIR, his brother had already died. It is apposite to mention here that the documentary evidence on record clearly belies the aforesaid statement of the first informant. Admittedly, the FIR was lodged on 27.11.2011 at 09:40 a.m. whereas the injured Mahesh (deceased) had already died on

27.11.2011 at 03:10 a.m. As such, the FIR was lodged after the death of injured Mahesh (deceased). Therefore, this part of the statement occurring in the deposition of PW-1 is prima-facie false.

57. Subsequently, this witness deposed before Court below as PW-1. Even though, this witness is not an eye witness of the occurrence yet he has given a vivid description of the cause of occurrence as well as the manner of occurrence. The basis of such description is the alleged oral dying declaration alleged to have been made by the injured Mahesh Chandra (deceased) to this witness. As per the said oral dying declaration, Lokesh, Babli, Sunita and Geeta first indulged into a brawl with the injured Mahesh Chandra (deceased), thereafter, they are alleged to have assaulted him then poured petrol upon him and set him ablaze. It is thus evident that the complicity of revisionist-2 Smt. Sunita alone has emerged in the crime in question as per the deposition of PW-1. However, the time, when this witness met the injured Mahesh (deceased) at the hospital has not been mentioned. In the FIR lodged by this witness, the following have been nomianted as named accused; Neelesh, Babli, Sunita, Geeta and Rajendra. 28 Admittedly, the alleged oral dying declaration must have been made to PW-1 by the injured Mahesh (deceased) before the FIR was lodged. Yet irrespective of above, there is no similarity qua the manner of occurrence in the FIR as well as the alleged oral dying declaration alleged to have been made by the injured Mahesh (deceased) to PW-1. Thus the first dying declaration does not support the prosecution story as unfolded in the FIR. If the first informant PW-1 had met the injured before lodging the FIR, the names of the accused in the alleged oral dying declaration made by the injured Mahesh (deceased) to this witness and the named accused nominated in the FIR would have been similar. As such, no credence can be attached to the deposition of PW-1 as well as the alleged oral dying declaration alleged to have been made by the injured Mahesh (deceased) to this witness.

58. Prem Veer Singh (PW-2) is the brother-in-law (Jija) of the injured Mahesh Chandra (deceased). The statement of this witness was recorded by the Investigating Officer under Section 161 Cr.P.C. This witness in his aforesaid statement has disclosed that while he was taking the injured Mahesh (deceased) to the hospital, a disclosure (oral dying declaration) was made by the injured Mahesh (deceased) to him that his wife Geeta, sister-in-law Sunita, and brother-in-law Bablu caught him from behind, his Sadhu Rajendra poured petrol upon him and thereafter Lokesh immolated him. Subsequently, the injured Mahesh (deceased) had also made a statement before the Doctor. However, Mahesh died in the same night at 03:10 a.m.

59. However, this witness in his deposition before Court below as PW-2 has stated that while he was taking the injured Mahesh Chandra (deceased) to the hospital, the injured had disclosed to him that Rajendra Singh (Sadhu of injured), Sunita (Sali of injured), Geeta (wife of injured), Bablu (brother-in-law of injured) and Lokesh (brother-in-law of injured), the three (Sali) Sunita, (Wife) Geeta and (Sala) Babli caught him from behind, thereafter, Rajendra sprinkled petrol upon his person and Lokesh 29 torched him. It is thus apparent that the second dying declaration of deceased has emerged in the deposition of aforesaid witness. Secondly, this witness is also not an eye witness of the occurrence.

60. As per the second dying declaration, the complicity of Rajendra Singh, his wife Sunita, Geeta (wife of injured Mahesh), Bablu and Lokesh (brother-in-law of injured Mahesh) has emerged in the crime in question. Nothing has emerged against named accused i.e. Neelesh. While in the previous statement under Section 161 Cr.P.C. of this witness, the complicity of one Babli (Sala) has emerged, however, as per the deposition of this witness before Court below, at one place the complicity of Sala Bablu and at other place, the complicity of Salal Babli has emerged. No explanation has come forward explaining the said anomaly. Admittedly, the FIR was lodged after the death of injured Mahesh (deceased). However, in the FIR, there is no mention of the oral dying declaration made by the injured Mahesh (deceased) to PW-2. As such, the manner of occurrence in the oral dying declaration of injured Mahesh (deceased) as disclosed in the previous statement of PW-2 Premveer Singh and his subsequent deposition before Court below are not similar.

61. PW-3 Dr. Amit Bhatnagar is alleged to have attended and treated the injured on 26.11.2011 at Bharat Hospital Meerut. This witness had prepared the history sheets/medical reports of the injured, wherein the alleged disclosure made by the injured Mahesh Chandra (deceased) to this witness was also incorporated. However, in the case diary, there are two history sheets/medical reports of the injured Mahesh (deceased) prepared by PW-3 Dr. Amit Bhatnagar. The first document i.e. history sheet/medical report of deceased is just after site plan prepared by the Investigating Officer. As per this document, it was prepared on 27.11.2011 at 09:30 p.m. However, the same has the thumb impression of the injured Mahesh (deceased), when admittedly, he had died on 27.11.2011 at 03:10 a.m. The second document is also the history sheet/medical report of injured Mahesh (deceased) prepared by PW-3 Dr. Amit Bhatnagar. The 30 same is on record at page 12 of the case diary just after the letter dated

03.12.2011 of the Investigating Officer. This document mentions the date

26.11.2011 with time 09:30 p.m. at the top. However, just besides the signature of PW-3, Dr. Amit Bhatnagar at the bottom, the date 16.12.2011 is mentioned. This document further contains a recital that the deceased died on 27.11.2011 at 03:10 a.m. Both the documents record the factum of disclosure made by the injured Mahesh (deceased). As such, the recital occurring in the aforesaid documents regarding the manner of occurrence alleged to have been made by the injured Mahesh (deceased) cannot be treated as dying declaration of the deceased as the exact words uttered by the injured Mahesh (deceased) are conspicuous by their absence in both the documents referred to above. No attempt was made by Court below to examine the application under Section 319 Cr.P.C. filed by the prosecution in the light of above. For ready reference, the medical report containing the disclosure alleged to have been made by the injured Mahesh Chandra (deceased) to PW-3 and incorporated in both the history sheets/medical reports, prepared by this witness is extracted herein below;- “Informant had gone to meet his 2 and ½ years old son, when he says he was caught from behind by someone and Rajendra (his wife’s sister’s husband) poured petrol on him and Lokesh (wife’s brother) ignited with match stick he sustained burn. Fire was extinguished by nearby villagers by covering with blanket. He was initially taken to Simbhawali Mill Kasba, where primary treatment was given by local doctor (details not known) and then came to this hospital on 26.11.2011 at 08:55 p.m. and got admitted Pt. Is married for past 3 and ½ hears and he and his wife are living separately for about 1 and ½ years.”

62. The statement of Dr. Amit Bhatnagar, who attended the injured Mahesh (deceased) at Bharat Hospital was also recorded under Section 161 Cr.P.C. by the Investigating Officer. This witness in his statement has stated that he had treated the injured Mahesh (deceased) and had also 31 recorded his dying declaration on the Bed Head Ticket, which is lying safe at Bharat Hospital. For ready reference, the statement of PW-3 Dr. Amit Bhatnagar as recorded under Section 161 Cr.P.C. is reproduced herein below;- ^^ बयान अमि(cid:8)त भटनागर (MBBS M.Sc.) सर्ज(cid:16)री MCH प्लास्टि(cid:21)टक कालौनीगढ़ रोड (cid:8)ेरठ ने पूछने पर बयान मिकया मिक र्जब मिकसी भी अ(cid:21)पताल (cid:8)ें र्जला हुआ (cid:8)रीर्ज भत$ होता है तो उसके उपचार के लिलए (cid:8)ुझे बुलाया र्जातात है। मि,0 26@27-11-2011 की रामि. (cid:8)ें एक व्यमि0 (cid:8)हेश चन्द्र सैनी S/o श्री र(cid:8)ेष चन्द्र सैनी मिन0 ग्रा0 रोहटा थाना खेबड़ा] जिर्ज0 बागपत र्जली हुई हालत (cid:8)ें भारत नर्सिंसग हो(cid:8) (cid:8)ेरठ गढ़ रोड पर ,ालिखल हुआ था। उसका (cid:8)ैंने उपचार मिकया था तथा उसका बयान BHT पर अंमिकत मिकया था] र्जो भारत अ(cid:21)पताल (cid:8)ें सुरक्षि@त है। उसका बयान (cid:8)ेरे द्वारा के शशीट व (cid:8)ेक्षिडकोलीगल (cid:8)ें भी अंमिकत मिकया गया है। उस(cid:8)ें बयान लिलखने के पश्चात (cid:8)ेरे द्वारा (cid:8)र्जरूब के ह(cid:21)ता@र न होने की ,श (cid:8)ें मिनशानी अंगूठा एवं पैर का अंगूठा लगवाया था। जिर्जसे आप अ(cid:21)पताल से प्राप्त कर सकते हैं। पूव(cid:16) (cid:8)ें (cid:8)ैंने उसका ((cid:8)र्जरूब) बयान BHT पर अंमिकत मिकया था। प्रश्न%-आप को (cid:8)र्जरूब का (cid:8)ुत्यु पूव(cid:16) कथन अंमिकत करने के पष्चात् उसके बयान को सम्बस्टिन्Lत कोट(cid:16) या सम्बस्टिन्Lत पुलिलस अLी@क के पास सील्ड लिलफाफे (cid:8)ें र्जाना चामिहए था र्जबमिक आपने ऐसा नहीं मिकया और बयान को अनसील्ड ,शा (cid:8)ें भारत हास्टि(cid:21)पटल (cid:8)ें छोड़ मि,या इस सम्बन्L (cid:8)ें आपको क्या कहना है। उत्तरः- ह(cid:8) तो अ(cid:21)पताल (cid:8)ें ही छोड़ ,ेते है। यह जिर्जम्(cid:8)े,ारी अ(cid:21)पताल वालों की है। वे उसे कही भेर्जे या नहीं। (cid:8)ुझे इस सम्बन्L (cid:8)ें यही कहना है।’’

63. Dr. Amit Bhatnagar deposed before Court below as PW-3. This witness in his deposition before Court below has stated that while he was attending the injured Mahesh Chandra (deceased), it was disclosed by him that some unknown person caught him, thereafter, Rajendra poured petrol upon him and then Lokesh set him on fire. It would be apt to reproduce the exact deposition of this witness regarding above;- “सशपथ बयान मिकया मिक 26-11-2011 को (cid:8)ैं भारत अ(cid:21)पताल मिन0 तेर्ज(cid:8)णिY गढ़ रोड 32 हापुड़ (cid:8)ें प्लास्टि(cid:21)टक सर्ज(cid:16)न के रूप (cid:8)ें तैनात था। उसी मि,न (cid:8)हे श चन्, सैनी उम्र 28 वष(cid:16) पु. र(cid:8)ेश चं, मिन0 ग्रा0 रटौल थाना खेकड़ा जिर्ज0 बागपत अ(cid:21)पताल (cid:8)ें इलार्ज हेतु भत$ हुआ था। (cid:8)रीर्ज ने बताया मिक वह मि,नांक 26-11-11 को सायं 6 बर्जे पत्नी के (cid:8)ायके गांव पीरनगर जिर्ज0 पंचशीलनगर हापुड़ (cid:8)ें अपने ढाई साल के बच्चे से मि(cid:8)लने गया था। वहां पर मिकसी ने (cid:8)रीर्ज (cid:8)हेश सैनी को पकड़ लिलया तथा रार्जेन्द्र ने उसे पेट्रोल डाल मि,या व लोके श ने उसे आग लगा ,ी। पड़ोजिसयों ने कम्बल डालकर आग बुझाई। (cid:8)हेश सैनी को सबसे पहले जिसम्भावली मि(cid:8)ल क(cid:21)बे (cid:8)ें ले र्जाकर भत$ मिकया।”

64. Thus the third dying declaration of the deceased has emerged in the deposition of PW-3. As per the said oral dying declaration, the complicity of only two of the named accused i.e. Rajendra Singh and Lokesh has emerged in the crime in question. However, PW-3 Dr. Amit Bhatnagar has completely departed from his previous statement under Section 161 Cr.P.C. for which, no explanation has come forward from him.

65. Rajeev Kumar and Rahul Teitya, who are employees of Bharat Hospital, were examined by the Investigating Officer, under Section 161 Cr.P.C. These witnesses in their deposition before Court below have stated that the dying declaration of injured Mahesh (deceased) was recorded by Dr. Amit Bhatnagar (PW-3) on the history sheet/medical report of injured Mahesh (deceased) dated 26.11.2011, which also has the thumb impression of the deceased. However, the aforesaid document only records the factum of an oral declaration made by the injured Mahesh (deceased). The said recital cannot be treated as dying declaration of the deceased as the exact words uttered by the injured Mahesh (deceased) have not been incorporated therein.

66. Apart from above, some of the witnesses examined by the Investigating Officer at the stage of investigation under Section 161 Cr.P.C. namely (1) Ramesh, (2) Anil Gujjar, (3) Prince, (4) Vikram Singh, (5) Nikhil, (6) Tejpal Singh, (7) Ganga Ram, (8) Kiran Saini, (9) Mahendra Singh Gujjar, (10) Jitendra and (11) Ram Singh have clearly and categorically stated in their statements that the injured Mahesh 33 Chandra (deceased) himself took out petrol from the petrol tank of his motor cycle by dipping a piece of cloth and then squeezed the same on his person and then immolated himself.

67. After the depositions of aforementioned witnesses i.e. PW-1, PW-2 and PW-3 had been recorded, prosecution (first informant) filed an application under Section 319 Cr.P.C. alleging therein that since the complicity of Rajendra Singh and his wife Sunita i.e. the present revisionists has also emerged in the crime in question, as per the depositions of witnesses examined upto this stage, therefore, they be also summoned to face trial.

68. Court below upon perusal of record and upon appraisal and appreciation of the facts came to the conclusion that since revisionist-1 Rajendra Singh is an army personnel and posted at Meerut, therefore, strong alibi has emerged in his favour. In view of above, Court below opined that it is desirable to have the statement of his immediate superior. Accordingly, Court below summoned Colonel Arun Hariharan as CW-1.

69. CW-1 Colonel Arun Hariharan, who was posted as Colonel General Staff in Sub Area, Meerut Head Quarter, the immediate superior of revisionist Rajendra Singh appeared before Court below as a Court witness i.e. CW-1. This witness in his deposition before Court below has clearly and categorically stated that on 26.11.2011 at around 06:00 p.m., a disclosure was made by Subedar Rajendra Singh to him that his Sadhu Ramesh has committed suicide but no leave was sanctioned by him to Rajendra Singh, who was working as Subedar at the relevant time under him. He had further stated that he had seen Subedar Rajendra Singh in the Cantt. Area at 04:30 p.m. He also produced the relevant register regarding sanction of leave, wherein no endorsement regarding sanction of leave to Subedar Rajendra Singh was mentioned. In the cross examination, a specific suggestion was put to the CW-1 Colonel Arun Hariharan as to how much time it will take to reach Hapur from Meerut. CW-1 had categorically replied that it will take at least 2 hours. 34

70. During the pendency of present criminal revision, the learned counsel for revisionists filed a supplementary affidavit dated 25.08.2023 annexing along with the same, the admission slip/discharge slip of revisionist-2 Smt. Sunita in proof of the fact that she was under hospitalization before the date of occurrence i.e. 26.11.2011 and was discharge on 27.11.2011. In fact, this accused has raised a plea of alibi in her defence. However, as the said document is not part of the case diary, the same cannot be looked into.

71. It is in the above background that his Court has to consider as to whether, complicity of revisionists in the crime in question is prima-facie apparent or something more than mere complicity of revisionists in the crime in question has emerged. Secondly, whether there is any evidence against the revisionists to sustain their summoning or the revisionists have been summoned on the basis of mere hypothesis. This is on the ground that PW-1 and PW-2 are not an eye witness of the occurrence. PW-3 is a Doctor. All the aforesaid three witnesses allege that the injured Mahesh (deceased) had made an oral dying declaration to them. However, all the three oral dying declarations are different, therefore, there is no consistency between them. Irrespective of above, no finding has been returned by Court below regarding acceptability/reliability of either of the three oral dying declarations or all of them.

72. At this juncture, it shall be useful to refer to the judgment of the Supreme Court in Brijendra Singh Vs. State of Rajsthan, (2017) 7 SCC

706. Paragraphs 13, 14 and 15 of the said report are relevant for the controversy in hand. Accordingly, the same are reproduced herein below;- "13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during 35 trial. Insofar as the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.

14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.

15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination- in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in- chief. However, in a case like the present where plethora of evidence was collected 36 by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

73. Therefore, the Court has to find out as to whether as per the depositions of PW-1, PW-2 and PW-3, something new has emerged in their depositions than what was stated by him in their statements under Section 161 Cr.P.C. Another test, which this Court is required to undertake is that as per the mandate of law laid down by Apex Court in S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226, Court has to find as to whether, any strong and cogent evidence has emerged against revisionists or not. The Bench in paragraph 29 of the report referred to the Five Judges Bench judgment of Supreme Court in Hardeep Singh (Supra) and thereafter, delineated it’s views in paragraphs 34, 35 and 36. For ready reference, paragraphs 34, 35 and 36 of the aforementioned report are reproduced herein below;- “34. The aforesaid reasons given by the High Court do not stand the judicial scrutiny. The High Court has not dealt with the subject-matter properly and even in the absence of strong and cogent evidence against the appellant, it has set aside the order of the Chief Metropolitan Magistrate and exercised its discretion in summoning the appellants as accused persons. No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word “evidence” has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that “only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier 37 manner”. This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the “evidence”, on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 CrPC.

35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.

36. In view of the above, it was not open to the High Court to rely upon the statements recorded under Section 161 CrPC as independent evidence. It could only be corroborative material. In the first instance, “evidence” led before the Court had to be taken into consideration. As far as deposition of PW 1 which was given in the Court is concerned, on going through the said statement, it becomes clear that he has not alleged any conspiracy on the part of the appellant landlords. In fact, none of the witness has said so. In the absence thereof, along with the important fact that these appellant landlords were admittedly not present at the site when the alleged incident took place, we do not find any “evidence” within the meaning of Section 319 CrPC on the basis of which they could be summoned as accused persons. PW 1 and PW 4 have deposed about the incident that took place at the site and the manner in which the persons who are present allegedly behaved. In the statement of PW 4, he has alleged that “Subsequently I came to know the said people is not police officials the people was sent by landlords of the building…”. That statement may not be enough for roping in the appellants/landlords to face the charge under those provisions of IPC with which others are charged. The standard of evidence mentioned in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , namely, “strong and cogent evidence”, is lacking.” 38

74. Refence may also be made to the Five Judges Bench judgment of the Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, wherein Court has observed regarding the degree of satisfaction, which is required to be recorded before summoning a prospective accused. Reliance was placed upon paragraph 106 of the report. Accordingly, the same is reproduced herein below;-

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross- Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

75. In view of aforesaid observations made by the Apex Court, this Court has to consider whether there was any such evidence before Court below or mere hypothesis on the basis of it, the satisfaction as required in law could have been recorded by Court below for summoning the revisionists to stand their trial.

76. PW-1 and PW-2 are not an eye witnesses of the occurrence, therefore, their deposition qua the manner of occurrence is wholly unworthy of reliance as it is based on heresay. The Apex Court in the case of Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730, set aside the order passed by Court below in exercise of jurisdiction under Section 319 Cr.P.C. on the ground that since PW-1 is not an eye witness, her deposition is not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 Cr.P.C. It would be apt to reproduce the relevant observations occurring in paragraph 23 of the report;- 39 “Having considered the matter in detail, we are of the opinion that PW- 1, not being an eye-witness, her deposition is not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 to summon the appellants.”

77. However, as per the deposition of PW-1 Ganesh Kumar Saini, the injured Mahesh (deceased) is alleged to have made an oral dying declaration to this witness. As per the said oral dying declaration, Lokesh, Babli, Sunita and Geeta entered into a brawl with him i.e. injured Mahesh (deceased), thereafter, he was physically assaulted by aforesaid persons then petrol was poured upon him and thereafter, he was immolated. It is thus apparent that the name of named accused Rajendra Singh has not surfaced in the said oral dying declaration. Secondly, the name of not named accused Lokesh has emerged in the said oral dying declaration. It is the admitted case of PW-1 Ganesh Kumar Saini, the first informant that he had met the injured Mahesh (deceased) at the hospital and an oral declaration was made to him. The FIR was, however, lodged on

27.11.2011 at 09:40 a.m. after the death of injured Mahesh (deceased), which took place on 27.11.2011 at 03:10 a.m. However, in the FIR, the name of Lokesh has not been named as an accused nor the fact that the injured Mahesh (deceased) had made an oral declaration to this witness. The anomaly existing in the manner of occurrence as mentioend in the FIR and the alleged oral dying declaration alleged to have been made by the injured Mahesh (deceased) make this witness unworthy of acceptance.

78. PW-2 Premveer Singh in his deposition before Court below has stated, while he was taking the injured Mahesh (deceased) to the hospital, he made a disclosure to him on the way that his (Sadhu) Rajendra Singh, (Sali) Sunita, (Wife) Geeta, (Sala) Bablu, (Sala) Lokesh, the three (Sali) Sunita, (wife) Geeta and (Sala) Babli caught him from behind then (Sadhu) Rajendra Singh poured petrol on him and (Sala) lokesh alighted the fire. However, as per the aforesaid oral dying declaration, the complicity of Nilesh, named accused has not emerged. Furthermore, the 40 anomaly occurring in the second dying declaration inasmuch as, the names of Babli and Bablu have occurred, which is contradictory, remains unexplained. The manner of occurrence emerging in the second dying declaration is contrary to the first oral dying declaration.

79. PW-3 Dr. Amit Bhatnagar in his deposition before Court below has deposed that he had attended the injured Mahesh (deceased) and also treated him. The injured Mahesh (deceased) had made an oral dying declaration to him that an unknown person caught him from behind thereafter, Rajendra Singh poured petrol upon him and ultimately, Lokesh alighted the fire.

80. However, PW-3 in his statement under Section 161 Cr.P.C. had stated that he had recorded the dying declaration of injured Mahesh (decesed) on the Bed Head Ticket of injured Mahesh (deceased), which is lying safe at the hospital. Two witnesses namely Rajeev Kumar and Rahul Tetiya, who are employees of Bharat Hospital have stated that the dying declaration of deceased was recorded on the history sheet/medical report of the injured Mahesh (deceased).

81. In view of above, the Investigating Officer submitted a letter dated

03.12.2011 to the Medical Officer Incharge, Bharat Nursing Home, Meerut demanding the copy of dying declaration of injured Mahesh (deceased). In response to the same letter, the history sheets/medical reports of injured Mahesh (deceased) dated 26.11.2011 and 27.11.2011 were supplied to the Investigating Officer. Apart from the anomalies existing in the aforementioned history sheets/medical reports of injured Mahesh (deceased), which has been dealt with in paragraph 40 of the present judgment, the history sheets/medical reports only incorporate the factum of the oral dying declaration alleged to have been made by the injured Mahesh (deceased) inasmuch as, the exact words uttered by the injured Mahesh (deceased) have not been recorded in the history sheets/medical reports. As such, the recital occurring in the history sheets/ medical reports of the injured Mahesh (deceased) prepared by Dr. Amit 41 Bhatnagar, PW-3 cannot be treated as dying declaration of the deceased.

82. On account of above, technically the disclosures alleged to have been made by the deceased to PW-1 Ganesh Kumar Saini , PW-2 Prem Veer Singh and PW-3 Dr. Amit Bhatnagar have to be treated as oral dying declarations. Present case is thus a case of multiple dying declarations. Therefore, as a logical corollary to above, this Court will have to examine the issue as to whether Court below was justified in proceeding to summon the revisionists to stand their trial without deciding the reliability and acceptability of the alleged oral dying declarations inasmuch as, in the absence of the said finding, the alleged oral dying declarations shall not fall within the realm of the term evidence but mere hypothesis.

83. Section 32 of the Indian Evidence Act, 1872 deals with dying declaration. For ready reference, the same is extracted hereinunder:- “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Statements, written or verbal, or relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose atttendance 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. 42 (2)Or is made in course of business. - When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him. (3)Or against interest of maker. - When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him, or would have exposed him to a criminal prosecution or to a suit for damages. (4)Or gives opinion as to public right or custom, or matters of general interest. - When the statement gives the opinion of any person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5)Or relates to existence of relationship. - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6)Or is made in will or deed relating to family affairs. - When the statement relates to the existence of any relationship [by blood, marriage or adoption] [Inserted by Act 18 of 1872, Section 2.] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing 43 on which such statements are usually made, and when such statement was made before the question in dispute was raised. (7)Or in document relating to transaction mentioned in section 13, clause (a). - When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (8)Or is made by several persons and expresses feelings relevant to matter in question. - When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. Illustrations (a)The question is, whether A was murdered by B; orA dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; orThe question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow.Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration are relevant facts. (b)The question is, as to the date of A's birth.An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day, he attended A's mother and delivered her of a son, is a relevant fact. (c)The question is, whether A was in Calcutta on a given day.A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact. (d)The question is, whether a ship sailed form Bombay harbour on a 44 given day.A letter written by a deceased member of a merchant's firm, by which she was chartered to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact. (e)The question is, whether rent was paid to A for certain land.A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact. (f)The question is, whether A and B were legally married.The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. (g)The question is, whether A, a person who cannot be found, wrote a letter on a certain day.The fact that a letter written by him is dated on that day, is relevant. (h)The question is, what was the cause of the wreck of a ship.A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. (i)The question is whether a given road is a public way.A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. (j)The question is, what was the price of grain on a certain day in a particular market.A statement of the price, made by a deceased baniya in the ordinary course of his business, is a relevant fact. (k)The question is, whether A, who is dead, was the father of B.A statement by A that B was his son, is a relevant fact. (l)The question is, what was the date of the birth of A.A letter from A's deceased father to a friend, announcing the birth of A on given day, is a relevant fact. 45 (m)The question is, whether, and when, A and B were married.An entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact. (n)A sues B for a libel expressed in a painted caricature exposed in a shop window.The question is as to similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.”

84. The issue regarding proof and admissibility of dying declaration came up for consideration before the Privy Council in the case of Pakala Narayana Swami Vs. The King Emperor, 1939 SCC OnLine PC 1.

85. In Khushal Rao Vs. State of Bombay, AIR 1958 SC 22, Court laid down the following principles regarding the admissibility of dying declaration in evidence:- “(i) that it cannot be laid sown as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (ii) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made, (ii) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made, (iii) 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, (iv) that a dying declaration stands on the same footing as another piece of evidence has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence, 46 (v) 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 the oral testimony which may suffer from all the infirmities of human memory and human character, (vi) 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 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.’

86. Subsequently, a Constitution Bench of the Supreme Court in Laxman Vs. State of Maharashtra, AIR 2002 SC 2973, considered the correctness of the law laid down in Paparambaka Rosamma Vs. State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji Vs. State of Gujarat, (1999) 9 SCC 562. The Constitution Bench approved the law laid down in Koli Chunilal Savji (Supra).

87. In Koli Chunilal Savji (Supra), the Bench was considering the 47 credibility and reliability/acceptability of the two dying declarations made by the deceased. Having undertaken a deep scrutiny of the facts of the case, the Bench formulated the questions, which arose for determination in paragraph 6 of the report. The same reads as under;- “6. In view of the rival submissions made at the Bar, two questions really arise for our consideration: (1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from consideration for the infirmities pointed out by Mr. Keshwani, appearing for the appellants. (2) Whether the High Court exceeded its jurisdiction in interfering with the order of acquittal, recorded by the learned Sessions Judge.”

88. The Bench thereafter referred to the earlier judgment in Harjeet Kaur Vs. State of Punjab, (1999) 6 SCC 545 and ultimately, denuded that both the dying declarations can be relied upon.

89. With regard to the proof of oral dying declaration, reference be made to the judgment of the Supreme Court in Atbir Vs. Govt. (NCT of Delhi), (2010) 9 SCC 1, wherein Court has stated as follows in paragraph 22 of the report:- “22. The analysis of the above decisions clearly shows that; (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 48 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 be 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.’

90. The acceptability of an oral dying declaration was again considered by 49 the Apex Court in the case of Kamal Khudal Vs. State of Assam, 2022 SCC OnLine SC 882. The Bench noted the submissions urged before the Court by the learned counsel for appellant in paragraph 10 of the report. Thereafter, the Court scrutinized the evidence on record and ultimately expressed it’s views in paragraphs 20, 21, 22, 23, 24 and 25. For ready reference, the same are reproduced herein below;- “20. We are of the view, having regard to the evidence on record, that High Court was justified in accepting the oral dying declaration made by the deceased before the PW2 as one reliable and inspiring confidence.

21. The law regarding the nature, scope and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuinity or veracity. The court has, therefore, to subject it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises.

22. We may refer to one of the decisions of this Court in the case of Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458, wherein in para 3 this Court observed as under: “3. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said 50 declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. …”

23. “Truth sits upon the lips of a dying man.” Matthew Arnold

24. The whole idea of accepting a statement in the name of dying declaration comes from a maxim “Nemo moriturus praesumitur mentire” which means that a man will not meet his maker with a lie in his mouth. It is believed that when a man is at the point of death and when every expectation of this world is gone, it hushes away every motive of lie.

25. In our view, the oral evidence of the PW2, namely, Hanu Khetrapal is quite natural. On the day of occurrence, he was working in his agricultural field. His presence in his field could be said to be natural. There is no good reason for Hanu Khetrapal (PW2) to come before the trial court and depose falsely against the accused persons. It is not even the case of the accused appellant herein that Hanu Khetrapal (PW2) had some axe to grind against him, including the other coaccused and, therefore, fabricated the entire story of an oral dying declaration. Besides the same, the oral dying declaration of the deceased made before Hanu Khetrapal (PW2) stands corroborated with the medical evidence on record. The medical evidence on record would suggest that there were 75% burn injuries on the chest of the deceased. The burn injuries were suffered by the deceased as the accused persons are said to have poured hot lali (raw material used for preparing liquor).”

91. In Irfan @ Naka Vs. State of UP, 2023 SCC OnLinie SC 1060, the Court has observed as under in paragraphs 62, 63, 64, 65 and 66;- “62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below 51 reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying 52 declaration is reliable as the accused is named in the dying declaration as the assailant.

64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful.

65. In Sujit Biswas v. State of Assam reported in (2013) 12 SCC 406, this Court, while examining the distinction between “proof beyond reasonable doubt” and “suspicion” in para 13 has held as under: “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of 53 dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.”

66. It may be true as said by this Court, speaking through Justice Krishna Iyer in Dharm Das Wadhwani v. State of Uttar Pradesh reported in (1974) 4 SCC 267, that the rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of the legitimate inferences flowing from the evidence, circumstantial or direct. Even applying this principle, we have a doubt as regards the complicity of the appellant-convict in the crime.”

92. Admittedly, PW-1 is a witness of fact but he is not an eye witnesses of the occurrence. PW-1 is the first informant but he does not disclose the name of the person, who gave him the information about the occurrence as well as the time aforesaid information was received by him. Furthermore, PW-1 has also not disclosed the time, when he met the injured Mahesh (deceased) at the hospital. As such, the FIR is based on heresay. Moreover, PW-1, in his previous statement under Section 161 Cr.P.C. has mentioned that an oral dying declaration was made by the injured Mahesh (deceased) to him. The names of the accused occurring in the oral dying declaration alleged to have been made by the injured Mahesh (deceased) to PW-1 and those mentioned in the FIR are different. While Rajendra Singh and Nilesh are named accused but their complicity in the crime in question has not emerged as per the oral dying declaration alleged to have been made by the injured Mahesh (deceased) to PW-1. Apart from above, the complicity of not named accused Lokesh has 54 emerged. It is evident from the record that the FIR was lodged on

27.11.2011 at 09:30 a.m. but after the death of injured Mahesh (deceased), who had died on 27.11.2011 at 03:10 a.m. As a logical consequence of above, PW-1 would have met the injured Mahesh (deceased) before this death. However, the narration regarding the manner of occurrence mentioned in the FIR and then occurring the alleged oral dying declaration made by the injured Mahesh (deceased) to PW-1 are materially different. In view of above, no satisfaction as required in law could have been recorded by Court below regarding the complicity of revisionists in the crime in question. Court below has miserably failed to consider this aspect of the matter, which has vitiated the order impunted. Court below without considering the aforesaid anomalies and recording a finding with regard to the reliability and acceptability of the oral dying declaration alleged to have been made by the injrued Mahesh (deceased) to PW-1 has relied upon the same.

93. PW-2 is also not an eye witness of the occurrence. However, this witness alleges that the injured Mahesh (deceased) had made an oral dying declaration to him. In his statement under Section 161 Cr.P.C., this witness has disclosed the factum about the manner of occurrence as disclosed to him by the injured Mahesh (deceased). As per the said disclosure, his wife Geeta, Sali Sunita and Sala Babli caught him from behind, thereafter, Rajendra Singh poured petrol on his person and then ultimately, Lokesh immolated him. However, in his deposition before Court below, this witness has stated that as per the declaration made by the injured Mahesh (deceased), (Sadhu) Rajendra Singh, (Sali) Sunita, (wife) Geeta, (Sala) Bablu, Sala (Lokesh), the three Sali Sunita, Wife Geeta, and Sala Babli caught him from behind then Sadhu Rajendra Singh poured petrol on him and Sala Lokesh alighted the fire. Thus there is contradiction in the statement as at one place the word ‘Bablu” has been mentioned and at the second place, the word Babli has been mentioned. The said anomaly stands unexplained. Moreover, the manner of 55 occurrence emerging in the second oral dying declaration alleged to have been made by the injured Mahesh (deceased) to PW-2 is materially different from the first oral dying declaration. Therefore, the aforesaid dying declaration could not be relied upon at the same time.

94. When the aforementioned two oral dying declarations are examined together, it is apparent that there is a sharp contrast between them regarding the manner of occurrence. In view of above, Court below ought to have exercised caution before proceeding to rely upon the same.

95. Court below has summoned the revisionists only by considering the depositions of PW-1 Ganesh Kumar Saini (first informant), PW-2 Premveer Singh (he got the injured Mahesh hospitalized at Bharat Hospital Meerut) but without deciding the issue as to whether the oral dying declarations emerging in the depositions of PW-1 and PW-2 are reliable and acceptable and whether they stand corroborated.

96. PW-3 Dr. Amit Bhatnagar in his deposition before Court below has stated that the injured Mahesh (deceased) had made an oral dying declaration to him, which was incorporated in the history sheet/medical report of the injured. However, there are two history sheets/medical reports of the injured Mahesh (deceased) in the case diary. Perusal of the same goes to show that the same only record an endorsement of alleged oral dying declaration made by injured Mahesh (deceased) but do not reflect the exact declaration made by the injured Mahesh (deceased) as the exact words uttered by the injured Mahesh (deceased) have not been mentioned therein. Therefore, the same cannot be treated as dying declaration of the deceased. Two witnesses namely Rajeev Kumar and Rahul Tetiya, who are employees of Bharat Hospital have stated that the dying declaration of deceased was recorded on the history sheet/medical report. The two history sheets/medical reports of the injured Mahesh (deceased) prepared by PW-3 Dr. Amit Bhatnagar only makes an endorsement of the alleged oral dying declaration of the injured Mahesh (deceased) as the exact words uttered by the injured Mahesh (deceased) 56 have not been mentioned. However, PW-3 Dr. Amit Bhatnagar in his previous statement recorded under Section 161 Cr.P.C. has stated that he had recorded the dying declaration of injured Mahesh (deceased) on his Bed Head Ticket, which is lying safe at the hospital. Accordingly, the Investigating Officer had submitted a letter dated 03.12.2011 to the Medical Officer Incharge, Bharat Nursing Home, Meerut demanding the dying declaration. However, the same was not supplied. As such, the same is not part of the case diary. The Investigating Officer was handed over the history sheets/medical reports of the injured Mahesh (deceased), which are dated 26.11.2011 and 27.11.2011 respectively. PW-3 Dr. Amit Bhatnagar has only proved one of the history sheet/medical report dated

26.11.2011, which has been marked as Ext-Ka-2. However, the said history sheet/medical report also records the time of discharge of injured Mahesh (deceased)/his death, which is 27.11.2011 at 03:10 a.m. In view of above, Court below could not have relied upon the alleged oral dying declaration alleged to have been made by the injured Mahesh (deceased) to PW-3 only after holding the same to be reliable and acceptable, which admittedly has not been done.

97. The deposition of CW-1 Colonel Arun Hariharan was disbelieved on the ground that the injured Mahesh (deceased) before his death made an oral dying declaration to Dr. Amit Bhatnagar i.e. Pw-3, wherein the act of pouring petrol upon the injured Mahesh (deceased) was assigned to revisionist-1 Rajendra Singh and secondly CW-1 in his deposition has not stated that Subedar Rajendra Singh was in front of his eyes from

26.11.2011 to 28.11.2011. The Court has ignored the factum emerging in the deposition of CW-1 that Subedar Rajendra Singh was seen by this witness at 04:30 p.m., no leave was sanctioned to Subedar Rajendra Singh, Subedar Rajendra Singh had himself disclosed to this witness that his Sadhu has committed suicide at around 06:00 p.m. and it will take two hours to reach Simbhavli from Meerut Cantt.

98. Court below completely ignored the statement of independent 57 witnesses namely (1) Ramesh, (2) Anil Gujjar, (3) Prince, (4) Vikram Singh, (5) Nikhil, (6) Tejpal Singh, (7) Ganga Ram, (8) Kiran Saini, (9) Mahendra Singh Gujjar, (10) Jitendra and (11) Ram Singh, who in their statements under Section 161 Cr.P.C. have stated that Mahesh (deceased) himself took out petrol from his motor-cycle, poured it on himself and then set himself ablaze.

99. Apart from above, one important circumstance, which emerged during the course of investigation is that the motor-cycle of Mahesh (deceased) was recovered from the place of occurrence. However, no attempt was made by Court below to consider the recovery memo of the same.

100. The factual position, which has thus emerged is that there are three oral dying declarations alleged to have been made by the injured Mahesh (deceased) to PW-1, PW-2 and PW-3. All the three oral dying declarations are inconsistent qua the manner of occurrence, therefore, irreconcilable. In view of above, Court below was mandatorily required to return a finding as to whether all the three oral dying declarations are reliable and acceptable or two of them or one is reliable and acceptable. Admittedly, PW-1 and PW-2 are not eye witnesses of the occurrence. The FIR is based upon heresay. PW-3 is the the Doctor, who had attended and treated the injured Mahesh (deceased) at the hospital. This witness has also alleged that an oral dying declaration was made by the injured Mahesh (deceased), which fact is contrary to his previous statement recorded under Section 161 Cr.P.C.

101. The law is fairly settled that there can be multiple oral dying declaration and all can be accepted. However, oral dying declaration is by itself not a conclusive proof of evidence but has to be proved in accordance with the mandate of Section 32 of the Evidence Act. It is on account of above that the Apex Court has repeatedly used the phrase reliability and acceptability and if need be to go for corroboration.

102. From perusal of the impugned order, it is apparent that no exercise 58 was undertaken by Court below regarding reliability and acceptability of either of three oral dying declarations or all of them. Without deciding the said question, Court below has relied upon the same and summoned the revisionists. As such, the revisionists have been summoned by court below even when no strong and cogent evidence emerged against them as in the absence of any finding as noted above, the three oral dying declarations alleged to have been made by the injured Mahesh (deceased) shall simply remain hypothesis.

103. On the aforesaid factual scenario, three aspects of the matter have arisen for consideration;- (a) Once the complicity of the prospective accused i.e. the revisionists has emerged in the deposition of PW-1, PW-2 and PW-3 then no illegality was committed by Court below in summoning the revisionists. The said view can be supported with the aid of two judgments of the Apex Court in Akhilesh Vs. State of U.P., 2025 SCC OnLine SC 727 and Shiv Baran Vs. State of U.P. and Another, 2025 SCC OnLine SC 1457. (b) No doubt, a prospective accused can be summoned by a Court in exercise of jurisdiction under Section 319 Cr.P.C. on the basis of the statement-in-chief of one witness yet the Court is required to look into the plethora of material collected by the Investigating Officer as it is a relevant material. Admittedly, the material collected by Investigating Officer during course of investigation i.e. the statement of independent witnesses namely (1) Ramesh, (2) Anil Gujjar, (3) Prince, (4) Vikram Singh, (5) Nikhil, (6) Tejpal Singh, (7) Ganga Ram, (8) Kiran Saini, (9) Mahendra Singh Gujjar, (10) Jitendra and (11) Ram Singh, who have given a different narration of the occurrence, the statements of PW-1, PW- 2 and PW-3 recorded under Section 161 Cr.P.C. inasmuch as, PW-3 Dr. Amit Bhatnagar in his statement under Section 161 Cr.P.C. has stated that he had recorded the dying declaration of the deceased on the Bed Head Ticket of injured Mahesh (deceased) and the same is lying safe at the hospital but the same is not part of the case diary nor was it produced 59 before Court. The recovery memo relating to the recovery of motor cycle of deceased from the place of occurrence, the two history sheets/medical reports of the injured Mahesh (deceased) prepared by Dr. Amit Bhatnagar mention about the oral dying declaration of decesed, the said report do not contain the recital that the dying declaration of injured Mahesh (deceased) was recorded on the Bed Head Ticket of injured Mahesh (deceased). Even the Investigating Officer, vide letter dated 03.12.2011 demanded the dying declaration of deceased recorded by the Doctor, but the same was not supplied to him. The aforesaid material is part of the case diary but has been completely overlooked by Court below and therefore, the order impugned stands vitiated. The said view can be supported by the judgment of Supreme Court in Brijendra Singh (Supra) and S Mohammad Ishpahani (Supra). (c). The reliability and acceptability of the three dying declartion has not been decided by Court below either way. Since the three alleged oral dying declaration are inconsistent and contradictory to each other, therefore, all the three oral dying declaration are prima-facie unworthy of acceptance and reliance at the same time. No adjudication has been made by Court below in this regard. As such, there was no evidence before Court below upon which, Court below could have recorded the same degree of satisfaction as is required to be recorded before summoning a prospective accused by virtue of the law laid down by the Five Judges Bench judgment of Supreme Court in Hardeep Singh (Supra).

104. This Court, while exercising revisional jurisdiction can go into the facts and circumstances of the case to find out whether Court below has committed a jurisdictional error or not, when particularly, the exercise of jurisdiction is based upon the facts on record. In the case of Mani Pushpak Joshi (Supra), the Apex Court examined the material on record and irrespective of the fact that complicity of prospective accused was alleged, the Court quashed the order passed by the trial Court in exercise of jurisdiction under Section 319 Cr.P.C. 60

105. Since the jurisdiction under Section 319 cr.P.C. is to be exercied by Court below and it is the Court dealing with the matter under Section 319 Cr.P.C. which has to record findings on the aforesaid questions but Court below has not answered the said questions either way. As such, prima- facie, Court below has not exercised it’s jurisdiction diligently but in a casual and cavalier fashion (as expressed by the Apex Court.).

106. In view of the discussion made above, the present criminal revision succeeds and is liable to be allowed.

107. It is, accordingly, allowed.

108. The order impugned dated 9.6.2023, passed by Additional District and Sessions Judge-Ist, Hapur in Sessions Trial No. 55 of 2013 (State Vs. Lokesh and Others) under sections 147, 323, 302, 120B and 34 IPC, Police Station- Simbhavli, District Hapur is, hereby, quashed.

109. The matter shall stand remanded to Court below for decision afresh in the light of observations made above. Order Date :- 09.07.2025 Vinay