Krishna Kumar And Other vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 25.08.2026
Delivered on 16.10.2026
CRIMINAL APPEAL No. - 1697 of 1989
Krishna Kumar
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Sikandar B. Kochar A/C, M. Islam
Counsel for Respondent(s) : D.G.A.

Court No. - 29
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
( Per Jai Krishna Upadhyay, J.)
1. This criminal appeal has been preferred by the appellant Krishna
Kumar @ Kumbh Karan against the judgment and order dated
31.07.1989 passed by the Additional Sessions Judge-9th, Bareilly,
arising out of Sessions Trial No. 437 of 1987 (State Vs. Krishna Kumar
@ Kumbh Karan and others), whereby the learned trial Court convicted
the appellant Krishna Kumar @ Kumbh Karan under Section 302 I.P.C.
and sentenced him to undergo life imprisonment with a fine of Rs. 100/-.
In case of default of payment of fine, he was sentenced to undergo
additional rigorous imprisonment for three months.
2. Since the Government Appeal No. 1392 of 1989 does not arise out of
the impugned order dated 31.07.1989 and has been wrongly connected
along with the criminal appeal No. 1697 of 1989, therefore, the same is
herby disconnected and is directed to be listed separately for hearing
before the appropriate bench.
3. In brief, the prosecution case is that deceased Bhim Singh had an
ongoing land dispute with Bhagwan Das, Kumbha karan, Ram Sahay,
and Chhote. On 24.02.1987 at about 11:15 p.m., when deceased Bhim
Singh reached his house at Nekpur, Madhinath from the Sugar Factory,
the accused Bhagwan Das, Ram Sahay, Chhote, and Kumbhakaran
met him. Among them, Ram Sahay, Chhote, and Bhagwan Das caught
hold of the deceased and instigated Kumbhkaran, saying, "What are you

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2
waiting for? Kill the bastard!". Thereupon, appellant-accused
Kumbhakaran stabbed deceased Bhim Singh in the stomach with a
dagger (gupti) with the intention to kill him. On the shouts of Bhim Singh,
witnesses Sohan Lal (PW-1) and Budhpal (PW-2) arrived at the scene
and witnessed the entire incident. The injured Bhim Singh reached the
police station in a rickshaw and lodged a First Information Report (FIR),
which was recorded by Constable Siyaram. The witnesses and the
deceased clearly saw and identified the accused persons in the electric
light.
4. Thereafter, Dr. U.K. Saxena (PW-3) medically examined the injured
Bhim Singh, and his dying declaration was recorded by Executive
Magistrate Leeladhar Nainwal (PW-7) after obtaining the doctor's
certification confirming his fitness to make a statement. The injured
Bhim Singh succumbed to his injuries on 25.02.1987 at 7:45 a.m. at the
District Hospital, Bareilly. His medical examination was conducted on
25.02.1987 at midnight, and his dying declaration was recorded on
25.02.1987 between 1:15 a.m. and 1:30 a.m. The post-mortem
examination of Bhim Singh was performed on 25.02.1987 at 4:30 p.m.
at District Hospital, Bareilly. Inquest (Panchayatnama) proceedings and
other statutory formalities were duly completed following his death.
5. Upon completion of the investigation, the charge-sheet against the
accused was submitted to the court, and the case was subsequently
committed to the Sessions Court. Charges were framed under Section
302 I.P.C. against the accused-appellant, who denied the charges and
claimed trial.
6. During the course of trial, the prosecution examined as many as 9
witnesses.
7. PW-1 Sohan Lal is an eyewitness who testified that his field is
adjacent to Madhinath Chowki. He stated that about one and a half
years prior, at around 11:00 p.m., while returning home from his fields,
he reached near Puran and Narayan's house at about 11:15 p.m. and
saw Chhote, Ram Sahay, and Kumbhakaran surrounding Bhima
(deceased). When he asked why they were surrounding him, Bhagwan
Das stated, "What are you looking at? Why don't you hit?" Meanwhile,
Kumbhakaran thrust a dagger into Bhima's stomach. As soon as the
dagger struck, Bhima ran toward Chaupala, and the accused fled into
the fields. PW-1 deposed that he witnessed the entire incident under the
light of an electric pole. He identified the accused in court and confirmed
the existence of prior enmity between the deceased and the accused.

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3
During cross-examination, PW-1 remained consistent with his
examination-in-chief.
8. PW-2 Budh Pal, another eyewitness named in the FIR, did not
support the prosecution version during trial and was declared hostile.
9. PW-3 Dr. D.K. Saxena, Medical Officer at District Hospital Bareilly,
testified that on 25.02.1987, Bhim Singh was admitted to the hospital at
12:05 a.m. He proved the bed-head ticket (Ex. Ka-8). He deposed that
at 1:15 a.m. on 25.02.1987, the Executive Magistrate arrived to record
the dying declaration. PW-3 certified that prior to recording the
statement, the deceased was fully conscious and mentally fit, endorsing
his handwriting and signature on Ex. Ka-7B. He further certified at 1:30
a.m. that even after completion of the declaration, the deceased
remained conscious and capable. He proved the death intimation memo
(Ex. Ka-9).
10. PW-4 Siyaram, a formal police witness, proved the Inquest
(Panchayatnama) (Ex. Ka-12).
PW-5 Rajbala Vishnoi, Station Officer, deposed that initial
11.
investigation was conducted by S.I. R.D. Tyagi and that she took over
the investigation at Kotwali on 27.02.1987. On that day, she recorded
statements of Puran Lal, Virendra Singh, Budh Pal, Sohan Lal, and the
recovery witnesses. She conducted a search at the house of accused
Krishna Kumar, inspected the spot under PW-1's direction, prepared the
site plan (Ex. Ka-2), and recorded inquest witness statements. She
subsequently submitted Charge-sheet No. 23 (Ex. Ka-3).
12. PW-6 Raj Bahadur Singh, Head Constable, proved G.D. Entry (Ex.
Ka-7) and FIR (Ex. Ka-4).
13. PW-7 Leeladhar Nainwal, A.S.D.M., deposed that upon receiving a
police memo after midnight on 25.02.1987, he reached the emergency
ward of District Hospital, Bareilly. After obtaining a doctor's certificate
regarding the victim's mental fitness, he commenced recording the dying
declaration at 1:15 a.m. The victim stated:
"I went to the house from Alakhnath (place). I spoke to my
brothers. They said, 'Get out. You've become a saint.' I told
them I had property worth lakhs, and they stabbed me in the
stomach with a knife or dagger. Ram Sahay S/o Narayan, and
his younger son Narayan caught hold of me. Kumbhakaran
S/o Puran Lal, stabbed me in the stomach with a dagger. I ran

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4
away in fear. I came to Chaupula and a traffic constable there
brought me to the hospital. This is my statement."
He proved that the statement was read over to the injured, who
confirmed its correctness and affixed his thumb impression. PW-7
obtained the doctor's final certificate and signed Ex. Ka-7B at 1:30 a.m.
14. PW-8 Dr. F.A. Khan conducted the post-mortem on 25.02.1987 at
4:30 p.m. He noted average build, rigor mortis present, and the following
ante-mortem injuries:
Punctured wound 3' x 1.5' x abdominal cavity deep on right side of
abdomen, 3' outer to umbilicus at 10 o'clock position, directed
upward and leftward, cutting omentum, lower stomach, and small
intestine through and through.
•
Incised wound 4 cm x 2 cm x muscle deep on left palmar aspect at
base of left thumb.
•
Incised wound 7 cm x 1 cm x muscle deep cutting base of left
index, middle, and ring fingers in a line.
•
Incised wound 5cm x 1 cm x bone cut between left little and ring
fingers on palmar aspect.
•
Incised wound 3 cm x 1.5 cm x muscle deep on palmar aspect of
left index finger.
•
He recorded that the cause of death was shock and haemorrhage
resulting from Injury No. 1, caused by a sharp and long weapon.
15. PW-9 Ram Sewak Upadhyay, Constable, proved Case Diary
Parchas No. 1 and 2 written by initial Investigating Officer S.I. R.D.
Tyagi.
16. All incriminating circumstances appearing in the prosecution
evidence were put to the appellant while recording his statement under
Section 313 Cr.P.C. The appellant denied the incriminating
circumstances and claimed false implication. He pleaded ignorance
regarding the dying declaration and filed a written statement during his
examination under Section 313 Cr.P.C., wherein he stated that his
father was unable to walk and that deceased Bhimsen harboured a
grudge against him regarding the sale of land and distribution of money.
On the day of the incident, his father was attacked at his house with an
intention to kill him. To save his father, the appellant tried to snatch the

CRLA No. 1697 of 1989
5
dagger from Bhimsen, who then attacked to kill him. In the scuffle to
snatch the weapon, the dagger struck Bhimsen's stomach. The
appellant snatched the dagger, which was subsequently taken from him
by persons present at the spot. Before he could take his father to the
police station to report the matter, the police arrived at his residence and
arrested him.
17. No evidence was led by the defence.
18. By the impugned judgment and order dated 31.07.1989, the learned
Trial Court convicted and sentenced the appellant, leading to the
present appeal.
19. We have heard Sri Sikandar B. Kochar, learned Amicus Curiae for
the appellant Krishna Kumar @ Kumbh Karan, and the learned A.G.A.
for the State.
20. Sri Sikandar B. Kochar, learned Amicus Curiae appearing on behalf
of the appellant, submitted that:
(i) The prosecution case fundamentally suffers from material
inconsistencies across the multiple statements treated as dying
declarations. While the First Information Report (Ex. Ka-4) registered at
the instance of the injured recites that he reached the police station in a
rickshaw with local assistance, the written dying declaration (Ex. Ka-7B)
recorded by the Executive Magistrate (PW-7) sets up a divergent
narrative that a traffic constable brought him directly from Chaupala to
the hospital. Furthermore, PW-3 Dr. D.K. Saxena recorded in the bed-
head ticket (Ex. Ka-8) that the injured was brought by Constable 330
Bahadur Singh. These contradictory versions regarding the transit and
conveyance of the injured destroy the spontaneity, voluntariness, and
credibility of the dying declaration (Ex. Ka-7B).
(ii) The ocular evidence produced by the prosecution is thoroughly
untrustworthy and uncorroborated. PW-2 Budh Pal, cited as an
independent eyewitness in the FIR, turned completely hostile during
trial. The sole remaining eyewitness, PW-1 Sohan Lal, is an interested
witness whose statement under Section 161 Cr.P.C. was recorded after
an unexplained and inordinate delay of three days (on 27.02.1987) by
Investigating Officer PW-5. Such deliberate delay in examining an
alleged neighbour generates serious doubt regarding his presence at
the scene and points toward post-incident tutoring.
(iii) The learned Trial Court failed to evaluate the plausible defence

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6
version set up by the appellant in his written statement under Section
313 Cr.P.C. The appellant cogently explained that the deceased initiated
an unprovoked attack on his physically disabled father over a land
dispute. The injury to the deceased was accidentally sustained during a
scuffle while the appellant was exercising his right of private defence to
save his father's life. The prosecution completely failed to negate this
probable defence plea.
(iv) The prosecution failed to recover the alleged weapon of assault
(gupti/dagger) or establish any forensic linkage connecting the appellant
to the crime. In the absence of corroborative physical evidence, a
conviction under Section 302 I.P.C. based solely on contradictory dying
declarations is unsustainable in law.
21. On the other hand, supporting the impugned judgment, the learned
A.G.A. for the State submitted that:
(i) The core substratum of the prosecution case has remained
unshakeable throughout the trial. Across all recorded statements,
including the FIR narrative, medical entries, and the solemn dying
declaration (Ex. Ka-7B), the specific and primary overt act of inflicting
the fatal dagger blow into the abdomen of the deceased has been
consistently attributed to appellant Krishna Kumar @ Kumbh Karan.
Minor variations regarding the exact vehicle used or the identity of the
person assisting the injured during transit are trivial peripheral details
that do not erode the core truthfulness of the assault.
(ii) The dying declaration (Ex. Ka-7B) was recorded by an independent
Executive Magistrate (PW-7 A.S.D.M.) after obtaining written
certification of mental fitness from attending Medical Officer Dr. D.K.
Saxena (PW-3) prior to and after recording the statement. The
declaration satisfies all tests under Section 32(1) of the Indian Evidence
Act, 1872 (now Section 26 of the Bharatiya Sakshya Adhiniyam, 2023).
Being voluntary, truthful, and untainted by tutoring, it independently
forms a valid legal foundation for conviction.
(iii) The ocular account of PW-1 Sohan Lal corroborates the dying
declaration on all material points. PW-1 clearly identified the appellant
stabbing the deceased in electric light, and his testimony remained firm
under cross-examination. His account is fortified by the post-mortem
report (Ex. Ka-11) proved by PW-8 Dr. F.A. Khan, which revealed a
deep, fatal abdominal cut (Injury No. 1) along with multiple incised
defence wounds on the deceased's left hand.

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(iv) The short delay of two to three days in recording the Section 161
Cr.P.C. statement of PW-1 was adequately explained by S.O. Rajbala
Vishnoi (PW-5), who took over investigation on 27.02.1987. As settled
by the Hon'ble Supreme Court, a short delay in examining witnesses
during an active investigation is not fatal per se when the underlying
evidence is reliable. The defence plea under Section 313 Cr.P.C. is an
unproven, self-serving afterthought lacking medical or testimonial
support.
22. Having considered the rival submissions advanced by learned
counsel for the parties and perused the entire material available on
record the point of determination which arises for adjudication is that
whether the learned Trial Court committed any legal error or perversity
in convicting and sentencing the appellant under Section 302 I.P.C. on
the basis of the evidence available on record.
23. Since the core arguments advanced by both the parties rests upon
the evidentiary value and reliability of the multiple dying declarations, it
is necessary to analyse the statutory principles and the law propounded
by the Hon'ble Supreme Court in this regard.
24. The statutory framework governing dying declarations, formerly
embodied under Section 32(1) of the Indian Evidence Act, 1872, is now
encapsulated under Section 26 of the Bharatiya Sakshya Adhiniyam,
2023 (BSA, 2023). Section 26 of BSA, 2023 provides that written or
verbal statements of relevant facts made by a person who is dead are
relevant when made as to the cause of death or as to any
circumstances of the transaction resulting in death.
25. The jurisprudential foundation of Section 32(1) / Section 26 BSA
rests upon the legal maxim Nemo morit urus praesumitur mentiri that a
person will not meet their Maker with a lie in their mouth. There is no
rigid statutory form prescribed for recording a dying declaration; it can
be made verbally, in writing, or by any recognized method of
communication, provided cognitive fitness is established. As Matthew
Arnold famously observed, "truth sits on the lips of a dying man" , the
general principle on which these statements are admitted is that these
declarations are made in extremity, when every hope of this world is
gone and every motive to falsehood is silenced, create an obligation
equal to that imposed by a positive oath in a court of justice. A dying
declaration, if voluntary, truthful, and unprompted, can form the sole
basis of conviction without requiring corroboration. However, where
multiple dying declarations exist, the Court must subject each to close

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scrutiny to ensure coherence and absence of material variance.
26. As held by the Hon'ble Supreme Court in Mohan Lal Gangaram
Gehani Vs. State of Maharashtra [(1982) 1 SCC 700] , where the
prosecution relies upon multiple statements in the nature of dying
declarations, the statement first in point of time is ordinarily preferred
unless subsequent statements are proven equally spontaneous and
reliable. For a plurality of dying declarations to be accepted, they must
exhibit coherence on the core substratum.
27. In Abhishek Sharma Vs. State (Govt. of NCT of Delhi) [(2024) 13
SCC 660] , the Hon'ble Supreme Court codified the parameters for
appreciating multiple dying declarations:
(1) The primary requirement for all dying declarations is that they
should be voluntary and reliable and that such statements should
be made in a fit state of mind;
(2) All dying declarations should be consistent. In other words,
inconsistencies between such statements should be 'material' for
its credibility to be shaken;
(3) When inconsistencies are found between various dying
declarations, other evidence available on record may be
considered for the purposes of corroboration...;
(4) The statement treated as a dying declaration must be
interpreted in light of surrounding facts and circumstances;
(5) Each declaration must be scrutinized on its own merits...;
(6) When there are inconsistencies, the statement that has been
recorded by a Magistrate or like higher officer can be relied on,
subject to the indispensable qualities of truthfulness and being
free of suspicion;
(7) In the presence of inconsistencies, the medical fitness of the
person making such declaration, at the relevant time, assumes
importance along with other factors such as the possibility of
tutoring..."
28. In view of the aforesaid settled position of law, we now proceed to
critically evaluate and scrutinize the multiple dying declarations and
ocular evidence available on record in the instant matter.
29. The statutory sanctity of the written dying declaration (Ex. Ka-7B) is

CRLA No. 1697 of 1989
9
established through the testimony of Leena Dhar Nainwal, the then
A.S.D.M. (PW-7). PW-7 deposed that upon receiving a police memo
after midnight on 25.02.1987, he reached the emergency ward of District
Hospital, Bareilly, and verified from the doctor on duty that the victim,
Bhim Sen alias Bhim Singh, was in a fit mental state to give a statement.
Commencing at 1:15 a.m., the dying declaration was recorded verbatim,
wherein the deceased categorically stated that Ram Sahay and his son
caught hold of him, and appellant Kumbhakaran stabbed him in the
stomach with a dagger. PW-7 read the statement back to the injured,
who confirmed its correctness and affixed his thumb impression at 1:30
a.m.
30. The veracity of the Executive Magistrate (PW-7) stands fully fortified
by the medical officer, Dr. D.K. Saxena (PW-3). PW-3 proved the bed-
head ticket (Ex. Ka-8) and testified that he endorsed his handwritten and
signed medical certificates both before recording commenced
(confirming full consciousness and fitness) and immediately after its
completion (confirming the deceased remained stable throughout). A
joint and harmonious reading of PW-3 and PW-7 demonstrates that the
dying declaration was recorded under rigorous medical oversight, free
from any tutoring or fabrication.
31. Further, the dying declaration is corroborated by the eyewitness
account of PW-1 Sohan Lal, who identified the appellant stabbing the
deceased under electric lighting. PW-1's account matches the medical
findings of PW-8 Dr. F.A. Khan. Significantly, Injuries No. 2, 3, 4, and 5
on the left hand of the deceased are classic incised defence wounds,
establishing that an unarmed victim attempted to ward off a lethal attack.
This physical evidence falsifies the defence plea raised under Section
313 Cr.P.C. that the injury occurred accidentally during a scuffle over a
weapon. Furthermore, the defence produced no medical or testimonial
evidence showing injuries to the appellant or his father.
32. The main challenge raised by the defence relates to minor variations
between the FIR narrative and the written dying declaration (Ex. Ka-7B)
regarding how the deceased reached the hospital, whether by rickshaw,
via a traffic constable from Chaupala, or accompanied by Constable 330
Bahadur Singh. As mandated by Principle (2) in Abhishek Sharma
(supra) , only material inconsistencies shake credibility. The core
substratum of the prosecution case across all declarations, that
appellant Krishna Kumar @ Kumbh Karan inflicted the fatal dagger/gupti
blow into the abdomen of deceased Bhim Singh, remains unwavering.
The minor variance regarding the mode of conveyance does not destroy

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10
the consistent attribution of the fatal assault to the appellant.
33. So far as the three-day delay in recording PW-1's statement under
Section 161 Cr.P.C., is concerned, it was explained by PW-5 S.O.
Rajbala Vishnoi, who took over investigation on 27.02.1987 from S.I.
R.D. Tyagi. As established in Goutam Joardar v. State of W.B. [(2022)
17 SCC 549] , Sunil Kumar v. State of Rajasthan [(2005) 9 SCC 283],
and V.K. Mishra v. State of Uttarakhand [(2015) 9 SCC 588], delay in
recording witness statements is not fatal per se when explained and
where the substantive evidence remains trustworthy.
34. Upon a comprehensive evaluation of the evidence available on
record, arguments advanced by parties, relevant statutory provisions
and settle position of law, this Court finds that the prosecution has
established beyond reasonable doubt that appellant Krishna Kumar @
Kumbh Karan inflicted the fatal dagger blow on deceased Bhim Singh.
The findings of the learned Trial Court are supported by evidence, free
from perversity or legal error, and warrant no interference and the
judgment and order dated 31.07.1989 is liable to be affirmed and
present criminal appeal is liable to be dismissed.
35. Accordingly, the present criminal appeal is dismissed . The
impugned order dated 31.07.1989 of conviction and sentence passed by
the Additional Sessions Judge-9th, Bareilly in Sessions Trial No. 437 of
1987 is hereby affirmed.
36. The accused-appellant Krishna Kumar @ Kumbhkaran is directed
to surrender before the Court concerned to serve the remaining
sentence.
37. Let a copy of this judgment along with the lower court record be
transmitted to the trial court for necessary information and compliance.
38. This Court would like to record its appreciation of the assistance
given by the learned Amicus Curiae, Shri Sikandar B. Kochar, and asks
the Legal Services Authority to pay him the legal aid fees of Rs. 30,000/-
for the same.
October 16,
2026
AKT
(Jai Krishna Upadhyay,J.) (Siddhartha Varma,J.)
Digitally signed by :-
ASHOK KUMAR TRIPATHI
High Court of Judicature at Allahabad