Amit Kuamr Gupta & Others vs State Of U.P. & Another
2012 Latest Caselaw 1267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 25
 

 
Case :- CRIMINAL REVISION No. - 1058 of 2008
 

 
Petitioner :- Amit Kuamr Gupta & Others
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Madhur Prasad,Sumit Jaiswal,Sunita Jaiswal
 
Respondent Counsel :- Govt. Advocate,Amit Mishra
 

 
Hon'ble Mrs. Jayashree Tiwari,J.

Case called out in the revised list.

Learned counsel for the applicant revisionists is present.

Learned A.G.A. is also present.

The present revision has been filed against the order passed by the learned Magistrate rejecting the discharge application of the applicant revisionists on the grounds mentioned in the body of the order itself.

During the course of argument emphasis was led on the point that dying declaration has been made by the deceased which has been annexed as annexure-1 to the revision, whereas the deceased given the statement before the Magistrate that she has consumed some medicine contained in the bottle and she is not aware that what were the contents of the bottle. It is further submitted that in the aforesaid dying declaration there is a statement given by the deceased that she was never ill treated by her husband and in laws but they were very affectionate and loving with and had cordial  and loving relation with her. The contention of learned counsel for the applicant revisionists is that in the shape of this dying declaration, the statement recorded by the deceased, it is expedient on the part of the learned trial court to have observe  the dying declaration, but learned lower court has rejected the discharge application giving a detailed reasons.

Even if for the argument's sake, it is taken to be proved, it is dying declaration made by a person who is now no more, the statement just immediately before his death, it shall be treated to be a previous statement of a person regarding the cause of his death and as such it is admissible only on the condition that the statement is duly proved by the person who recorded the statement.

Learned counsel for the revisionists concedes that this stage has not been arrived before the learned Magistrate. In the circumstances, mere statement itself is not enough and it is  not substantive piece of evidence unless it is corroborated by cogent evidence only then it can be taken into consideration.

So the application for discharge is legally not maintainable and learned lower court has rejected the discharge application. In doing so, learned Magistrate has not committed any error or irregularity. Apparently, no illegality or perversity is reflected in the order so passed. The revision, therefore, appears to have no force in itself and is liable to be dismissed as such.

The revision is accordingly, dismissed.

Order Date :- 3.5.2012

Monika