published in http://judis.nic.in/supremecourt/filename=40475
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.752 OF 2008
Rafique @ Rauf & others ….Appellants
VERSUS
State of U.P. ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal by the eight accused who were proceeded against
in Crime No.397/97 in Sessions Case No.35/1998 in the Court
of Second Additional Sessions Judge, District Kannauj, were
charged and convicted for offences falling under Section 302
read with 149, 307 read with 149, as well as for offences under
Sections 452, 148 and 147 IPC. All the accused were convicted
and inflicted with the punishment of life imprisonment for the
offence under Section 302 read with 149 IPC, 5 year rigorous
imprisonment for the offence under Section 307 read with 149
IPC, 1 year rigorous imprisonment for the offence under
Section 452 IPC, 6 months rigorous imprisonment for the
offence under Section 148 IPC and 3 months rigorous
imprisonment for the offence under Section 147 IPC.
Criminal Appeal No.752 of 2008 1 of 30Page 2
2. The case of the prosecution as projected before the Court
below was that 7 days prior to the date of occurrence there
was some dispute between the children of the parties of the
victim and the accused. A goat belonging to the accused
persons stated to have gone into the maize field of the
deceased Zahiruddin and when the son of the said deceased
objected to that, he was caught by the father of the accused 1
to 6. When the deceased Zahiruddin came to know about the
said conduct of Masook, father of the accused 1 to 6, he went
and protested by questioning him as to how for the grazing of
the maize crop by the goat belonging to Masook, the son of
the deceased could be held in captivity. The said protest
raised by deceased Zahiruddin was not liked by Masook and
both stated to have abused each other. Pursuant to the said
incident, on 05.09.1997 at about 3.00 pm, all the appellantsaccused armed with country-made gun (Addhi) as well as
country-made pistols and the first accused holding his gun,
entered the house of the deceased where P.Ws.1 to 3 were
conversing with the deceased, Zahiruddin and made
indiscriminate firing towards the deceased and the other
persons. The deceased, P.Ws.2 and 3 stated to have sustained
firearm injuries and they raised alarm pursuant to which others
Criminal Appeal No.752 of 2008 2 of 30
rushed to the spot. The appellants stated to have escaped
from the scene of occurrence after giving further threats.
3. The deceased and other injured were stated to have been
brought to Kotwali Farrukhabad, where P.W.1 lodged the
written complaint Ext. Ka-1. The crime was registered as Crime
No.397/97, as was evident from the G.D. entry Ext.Ka-14. The
Investigating Officer P.W.6 stated to have recorded the
statement of the deceased Zahiruddin purportedly under
Section 161 Cr.P.C under Ext. Ka-9. The injured along with the
deceased stated to have been sent to the hospital where the
injured persons including the deceased were examined by the
doctor. The injury report of the deceased Zahiruddin was Ext.
Ka-3, the injury report of P.W.2 was Ext. Ka-4 and the injury
report of P.W.3 was Ext. Ka-2. The deceased Zahiruddin died
on the next day, i.e. on 06.09.1997 at 3:30 pm. The inquest
memo was Ext. Ka-15 and the postmortem report was Ext. Ka-
5. P.W.4 Dr. Irfan Ahmad was the doctor who conducted the
postmortem and issued the postmortem certificate. The
Investigation was initially carried out by P.W.6 and was later
on completed by P.W.8. The charge-sheet was Ext.Ka-12.
P.W.2, the wife of the deceased suffered two injuries, while
P.W.3, the niece of the deceased, suffered one injury. The
Criminal Appeal No.752 of 2008 3 of 30Page 4
deceased suffered as many as eight injuries. It was in evidence
that all the injuries were due to gun shots. The distance
between the place of occurrence and the police station was
stated to be 20 kilometers. All the injured were examined by
the doctor by 5:45 pm to 6.10 pm on 05.09.1997 itself. It is in
the evidence of P.W.5, postmortem doctor that based on the
injuries noted on the body of the deceased it could be stated
that he was capable of speaking in spite of the injuries
sustained by him. The prosecution examined P.Ws.1 to 9.
Based on the evidence before the trial Court and the
incriminating circumstances existed against the appellants,
they were questioned under Section 313 Cr.P.C and all the
appellants denied their involvement and stated that due to
animosity the evidence had been adduced against them. It
was also stated that all of them belong to one and the same
family. They did not choose to let in any evidence in support of
their defence. It is in the above-stated background the
conviction and sentence came to be imposed by the trial
Court, which was also affirmed by the High Court in toto.
4. Assailing the judgment impugned, Mr. Jaspal Singh, learned
senior counsel for the appellants after taking us through the
relevant evidence on record, as well as the judgments
Criminal Appeal No.752 of 2008 4 of 30Page 5
impugned before us submitted that the presence of P.W.1 in
the place of occurrence was doubtful; that there were
prevaricating statements by the witnesses about the exact
place of occurrence; that there were grave doubts as to
whether all the accused opened fire or only few of them; that
having regard to the position in which P.Ws.2, 3 and deceased
were placed at the time of occurrence the occurrence could
not have been witnessed by the said so called eye-witnesses
as narrated by them and that though only fire shot injuries
were said to have been caused, not even a single pellet or an
empty cartridge was recovered from the scene of occurrence.
According to the learned senior counsel, there were serious
doubts as to whether the postmortem report related to the
body of the deceased. The learned senior counsel also
contended that the accused were not questioned with
reference to the so called dying declaration of the deceased in
the 313 questioning. The learned senior counsel, therefore,
contended that all the above factors created lot of doubts as to
the factum of the occurrence, as well as the crime and that in
any event the offence under Section 302 IPC cannot be said to
have been made out and at best it may fall under Section 304
Part I or II and that Section 148 will not apply. According to
Criminal Appeal No.752 of 2008 5 of 30Page 6
him, if at all the accused had any grievance it could have been
only against Shamshuddin, but certainly none had any object
to kill Zahiruddin, the deceased.
5. As against the above submissions, Mr. Aarohi Bhalla, learned
counsel for the State by referring to the judgment of the trial
Court contended that after a detailed consideration of the
stand of the appellants, the trial Court was able to conclude
with all certainty about the place of occurrence and, therefore,
the said submission made on behalf of the appellants do not
merit any consideration. According to the learned State
counsel, the family of P.W.1 and the deceased were only living
in two different portions of the same building and, therefore,
the submission raising doubts about the place of occurrence
does not merit any consideration. According to him the
medical evidence fully established the use of firearm in the
incident. The learned State counsel by making reference to
Ext.Ka-15, inquest report issued by Irshad Ahmad at 10:55,
contended that there was no doubt about the death of the
deceased and the postmortem report relating to his death was
also proved.
Criminal Appeal No.752 of 2008 6 of 30
6. Having heard learned counsel for the respective parties and
having bestowed our serious consideration to the various
submissions made before us, we find that the submissions of
learned counsel for the appellants raise the following questions
for consideration, namely:-
I. Whether the reliance placed upon by the High Court
on Ext.Ka-9, the recorded statement of the deceased
Zahiruddin, which was relied upon by the High Court as a
dying declaration and the confirmation of the conviction on
that basis was justified?
II. Whether there was any controversy relating to the
place of occurrence in order to doubt the case of the
prosecution?
III. Whether there was any doubt about the death of the
deceased as submitted on behalf of the appellants?
IV. Whether there was any scope to hold that the offence
would fall under Section 304 Part I or II and not under
Section 302 and other offences for which they were
convicted?
Criminal Appeal No.752 of 2008 7 of 30Page 8
7. At the outset it will have to be noted that except mere denial
of the offence alleged against the accused in their 313
questioning no other specific stand was taken on behalf of the
appellants nor was any defence evidence, oral or
documentary, placed before the Court. The motive for the
offence was stated to be the grazing of maize crop by the goat
belonging to the father of the appellants-accused 1 to 6 and
the grand-father of appellant-accused 8 in the field of the
deceased seven days prior to the date of occurrence.
Admittedly, all the accused were closely related. Most of them
belong to one family, namely, Masook. P.W.2 Shamshuddin,
the complainant is the brother of the deceased. As far as the
grazing of the maize crop as alleged by the complainant party
was concerned not much argument was raised on behalf of the
appellants. Even in the evidence nothing was stated to have
been brought out in order to reject the said case pleaded by
the prosecution. There was also no dispute about the fact that
the occurrence took place in the premises of the deceased, as
well as the complainant and other injured witnesses, namely,
P.Ws.2 and 3. As regards the presence of the deceased and
the other injured witnesses, namely, P.Ws.2 and 3 in the police
station at the instance of P.W.1 who was also an eye-witness
Criminal Appeal No.752 of 2008 8 of 30Page 9
to the occurrence, was also not seriously disputed. We also
find that the occurrence, which was stated to have taken place
at 3.00 pm on 05.09.1997, was brought to the notice of the
police without further loss of time, which was located about 20
kilometers away from the place of occurrence. There was also
no serious argument raised as regards the registration of the
FIR relating to the occurrence. Both the Courts below,
therefore, held in one voice that there was no chance of any
manipulation at the instance of the police.
8. While the occurrence had taken place at 3.00 pm, the
deceased who was seriously injured along with the other
injured witnesses P.Ws.2 and 3, were rushed to the hospital
from the police station who were examined by P.W.4 between
5.45 pm to 6.10 pm on 05.09.1997. The injury reports Ext.Ka-
3, Ext.Ka-4 and Ext.Ka-2 of the deceased, P.W.2 and P.W.3,
read along with the evidence of P.W.4 Dr. Irfan Ahmad,
sufficiently establish the nature of injuries sustained by all the
three of them. Ext.Ka-9 the statement of the deceased
recorded under Section 161 Cr.P.C. by P.W.6 at the police
station when he was in the injured condition immediately after
the incident, disclose the specific overt act against the
appellants-accused as revealed by the deceased himself. It is
Criminal Appeal No.752 of 2008 9 of 30Page 10
true that the trial Court declined to rely upon the said
statement by treating it as a dying declaration, while the High
Court fully relied upon the said statement as a dying
declaration of the deceased. In that respect certain other
factors, which are relevant to be stated are that the deceased
was 45 years old at the time of his death, as noted by P.W.4
Dr. Irfan Ahmad. P.W.5, Dr. P.V.S. Chauhan, who conducted the
postmortem of the deceased, in the course of the crossexamination, categorically stated that because of the injury it
cannot be concluded that the injured was unconscious and was
not able to speak. He further stated that after getting the
injuries in the brain it is not necessary that the injured would
immediately go to coma stage and that it cannot be definitely
stated within which time a person would reach the state of
coma. It is also relevant to state that it has come in the
evidence of P.Ws.1 to 3 that the families of the deceased
Zahiruddin, as well as his brother P.W.1 were living in the
same premises in two different portions. The presence of
P.W.3, the niece of the deceased Zahiruddin, at the place and
time of occurrence has also been sufficiently stated and
corroborated by all the three witnesses.
Criminal Appeal No.752 of 2008 10 of 30
9. Keeping the above factors in mind when we examine the
submissions made on behalf of the appellants, as far as the
reliance placed upon by the High Court in the impugned
judgment on Ext.Ka-9 by treating it as a dying declaration, the
High Court has noted the details mentioned in the said exhibit
by extracting the same in the judgment impugned, which is to
the following effect:
“On the west side of my house, there is field of corn
crop wherein 7 days prior to today i.e. 5.9.97, the
goats of my co-villager Massok s/o Altaf had entered.
My younger son Ezaz, aged 7 years had caught goat
and was taking the same away on which Massok had
freed the goat and started to take away my son, on
which we came to know and I asked him not to do so
that you are making the goat to eat the crop and
simultaneously you are taking my son also away, it is
not the right thing, on which they hurled abuses.
Today on 5.9.97 I was sitting in the verandah of my
house that suddenly around 3 o’clock Rauf, Ishtiyaq,
Ataullah, Ayub, Pauva alias Pappu, Latif sons of
Massok, Nisar s/o Farukh and Karim s/o Rauf came
there out of them Latif was carrying Adhi and Rauf was
carrying desi gun and others were carrying tamancha,
and they came to my house climbing the stairs, my
brother Shamsuddin, my wife Zabira and Mushtaq’s
daughter Shehnaz also present there. All the accused
persons after arriving started firing indiscriminately on
myself and my family members with an intention to
kill us, on sustaining injuries I fell down on the ground
and my wife and Shehnaz d/o Mushtaq also sustained
pellet injuries. Then we raised alarm, hearing the
same Shamsuddin, who had gone out of the house and
Mushtaq s/o Defendar and Majeed s/o Panna came
there and challenged the accused persons on which
the accused persons went away towards their house.
The accused persons were threatening of dire
consequences. The accused persons had fired from
Criminal Appeal No.752 of 2008 11 of 30Page 12
close distance. I have sustained grievous injuries on
different part of my body. My voice is becoming
unclear, and my brother Shamsuddin has brought me
to Thana on jeep.”
10. The said statement refers to the incident, which took
place seven days prior to the date of occurrence, which formed
the motive for the occurrence. It also refers to the presence of
all the accused on 05.09.1997 at 3 O’clock in his house and
the arms, which were in their possession. It also mentions the
presence of P.Ws.1 to 3 at that time. It further states as to how
indiscriminate firing was made by the accused, which resulted
in the injuries sustained by him, as well as P.Ws.2 and 3. It also
refers to the alarm raised by P.W.2 and the rushing in of
Mushtaq s/o Defendar and Majeed s/o Panna pursuant to which
the appellants-accused went away after making further threats
against the victim. Finally, it was stated that he was taken to
the police station by his brother P.W.1 in a Jeep.
11. The important question for consideration, therefore, is
whether the said statement made by the deceased can be
taken as a dying declaration and reliance can be placed upon
the same. The High Court while relying upon the said
statement has noted certain circumstances, namely, the
Criminal Appeal No.752 of 2008 12 of 30Page 13
evidence of P.W.6, Investigating Officer, who deposed that the
deceased was fully conscious when he was brought to the
police station with injuries on his face, chest and other parts of
the body and that he recorded his statement. It was also noted
that after recording his statement the Investigating Officer
referred him to the hospital for medical examination and
treatment. The High Court, thereafter, noted the evidence of
P.W.5 the postmortem doctor who categorically stated in his
cross-examination that the injured was also in a position to
speak and that it was not necessary that in all cases after
sustaining injury in the brain a person cannot retain his
conscience or will not be in a position to speak. The High Court
noted the further statement of the doctor that it is not
necessary that in every such case the patient would
immediately go to a coma stage.
12. The High Court, therefore, reached a conclusion that
the deceased Zahiruddin, was in a position to speak and that
the statement under Ext.Ka-9 was given by him who expired
on the next day evening. It further stated that since it was the
last statement of the deceased to the Investigating Officer it
can very well be treated as a dying declaration. The High Court
was conscious of the fact that the trial Court did not place any
Criminal Appeal No.752 of 2008 13 of 30Page 14
reliance on the said statement which in the opinion of the High
Court was erroneous.
13. In this context when we make reference to the
statutory provisions concerning the extent of reliance that can
be placed upon the dying declaration and also the implication
of Section 162(2) Cr.P.C. vis-à-vis Section 32(1) of the
Evidence Act, 1872, we feel that it will be appropriate to make
a reference to the decision of this Court reported in Khushal
Rao vs. State of Bombay - AIR 1958 SC 22. Justice Sinha
speaking for the Bench after making further reference to a Full
Bench decision of the High Court of Madras headed by Sir
Lionel Leach, C.J., a decision of the Judicial Committee of the
Privy Council and ‘Phipson on Evidence’ – 9th Ed., formulated
certain principles to be applied to place any reliance upon such
statements. We feel that the substance of the principles stated
in the Full Bench decision and the Judicial Committee of the
Privy Council and the author Phipson’s view point on accepting
a statement as dying declaration can also be noted in order to
understand the principles ultimately laid down by this Court in
paragraph 16.
Criminal Appeal No.752 of 2008 14 of 30
14. The Full Bench of the Madras High Court reported in In
re, Guruswami Tevar - ILR 1940 Mad 158 at page 170 (AIR
1940 Mad 196 at p.200) in its unanimous opinion stated that
no hard and fast rule can be laid down as to when a dying
declaration should be accepted, except stating that each case
must be decided in the light of its own facts and other
circumstances. What all the Court has to ultimately conclude is
whether the Court is convinced of the truthfulness of the
statement, notwithstanding that there was no corroboration in
the true sense. The thrust was to the position that the Court
must be fully convinced of the truth of the statement and that
it should not give any scope for suspicion as to its credibility.
This Court noted that the High Court of Patna and Nagpur also
expressed the same view in the decisions reported in
Mohamad Arif vs. Emperor – AIR 1941 Pat.409 (J) and
Gulabrao Krishnajee vs. Emperor – AIR 1945 Nag. 153 (K).
15. The Judicial Committee of the Privy Council while
dealing with a case, which went from Ceylon, which was based
on an analogous provision to Section 32(1) of the Indian
Evidence Act, took the view that apart from the evidence of
the deceased the other evidence was not sufficient to warrant
a conviction. It was, however, held that in that case when the
Criminal Appeal No.752 of 2008 15 of 30Page 16
statement of the deceased was received and believed as it
evidently was by the jury it was clear and unmistakable in its
effect and thereby, the conviction was fully justified and was
inevitable. The Judicial Committee noted that the factum of a
murderous attack, though resulted in the cutting of the throat
and the victim was not in a position to speak but yet by mere
signs she was able to convey what she intended to speak out,
and the said evidence was brought within the four corners of
the concept of dying declaration, which formed the sole basis
ultimately for the Court to convict the accused, which was also
confirmed by the Supreme Court of Ceylon, as well as by the
Judicial Committee of the Privy Council.
16. The author Phipson in his 9th Ed., of the book on
Evidence made the following observations:
"......The deceased then signed a statement
implicating the prisoner, but which was not elicited by
question and answer, and died on March 20. It was
objected that being begun in that form, it was
inadmissible:- Held (1) the questions and answers as
to his state of mind were no part of the dying
declaration; (2) that even if they were, they only
affected its weight, not its admissibility; and (3) that
the declaration was sufficient, without other evidence,
for conviction R. v. Fitzpatrick, (1910) 46 Ir. L.T. 173
(M)."
Criminal Appeal No.752 of 2008 16 of 30Page 17
17. After considering the above legal principles, this Court
has set down the following six tests to be applied for relying
upon a material statement as a dying declaration:
“16. On a review of the relevant provisions of the
Evidence Act and of the decided cases in the different
High Courts in India and in this Court, we have come
to the conclusion, in agreement with the opinion of the
Full Bench of the Madras High Court, aforesaid, (1)
that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of
conviction unless it is corroborated; (2) that each case
must be determined on its own facts keeping in view
the circumstances in which the dying declaration was
made; (3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind of
evidence than other pieces of evidence; (4) that a
dying declaration stands on the same footing as
another piece of evidence and has to be judged in the
light of surrounding circumstances and with reference
to the principles governing the weighing of evidence;
(5) that a dying declaration which has been recorded
by a competent magistrate in the proper manner, that
is to say, in the form of questions and answers, and,
as far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than a
dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human
memory and human character, and (6) that in order to
test the reliability of a dying declaration, the Court has
to keep in view the circumstances like the opportunity
of the dying man for observation, for example,
whether there was sufficient light if the crime was
committed at night; whether the capacity of the man
to remember the facts stated had not been impaired
at the time he was making the statement, by
circumstances beyond his control; that the statement
has been consistent throughout if he had several
opportunities of making a dying declaration apart from
the official record of it; and that the statement had
been made at the earliest opportunity and was not the
Criminal Appeal No.752 of 2008 17 of 30
result of tutoring by interested parties.” (Emphasis
added)
18. We also wish to add that as on date, there is no
statutory prescription as to in what manner or the procedure
to be followed for recording a dying declaration to fall within
the four corners of Section 32(1) of the Evidence Act. The
presence of Magistrate; certification of the doctor as to the
mental or the physical status of the person making the
declaration, were all developed by judicial pronouncements. As
has been repeatedly stated in various decisions, it will have to
be found out whether in the facts and circumstances of any
case the reliance placed upon by the prosecution on a
statement alleged to have been made by the deceased prior to
his death can be accepted as a dying declaration, will depend
upon the facts and circumstances that existed at the time of
making the statement. In that case it would mainly depend
upon the date and time vis-à-vis the occurrence when the
statement was alleged to have been made, the place at which
it was made, the person to whom the said statement was
made, the sequence of events, which led the person
concerned to make the statement, the physical and mental
condition of the person who made the statement, the cogency
with which any such statement was made, the attending
Criminal Appeal No.752 of 2008 18 of 30Page 19
circumstances, whether throw any suspicion as to the factum
of the statement said to have been made or any other factor
existing in order to contradict the statement said to have been
made as claimed by the prosecution, the nexus of the person
who made the statement to the alleged crime and the parties
involved in the crime, the circumstance which made the
person to come forward with the statement and last but not
the least, whether the said statement fully support the case of
the prosecution.
19. In this context, we can also make a reference to a
decision of this Court reported in Cherlopalli Cheliminabi
Saheb and another vs. State of Andhra Pradesh - (2003)
2 SCC 571, where it was held that it was not absolutely
mandatory that in every case a dying declaration should be
recorded only by a Magistrate. The said position was reiterated
in Dhan Singh vs. State of Haryana – (2010) 12 SCC 277
wherein, it was held that neither Section 32 of the Evidence
Act nor Section 162(2) of the Cr.P.C., mandate that the dying
declaration has to be recorded by a designated or particular
person and that it was only by virtue of the development of
law and the guidelines settled by the judicial pronouncements
that it is normally accepted that such declaration would be
Criminal Appeal No.752 of 2008 19 of 30Page 20
recorded by a Magistrate or by a doctor to eliminate the
chances of any doubt or false implication by the prosecution in
the course of investigation.
20. In a recent decision of this Court reported in Sri
Bhagwan vs. State of U.P. – 2012 (11) SCALE 734, to which
one of us was a party, dealt with more or less an identical
situation and held as under in paragraphs 21 and 22:
“21. As far as the implication of 162 (2) of
Cr.P.C. is concerned, as a proposition of law, unlike
the excepted circumstances under which 161
statement could be relied upon, as rightly
contended by learned senior counsel for the
respondent, once the said statement though
recorded under Section 161 Cr.P.C. assumes the
character of dying declaration falling within the four
corners of Section 32(1) of Evidence Act, then
whatever credence that would apply to a
declaration governed by Section 32 (1) should
automatically deemed to apply in all force to such a
statement though was once recorded under Section
161 Cr.P.C. The above statement of law would
result in a position that a purported recorded
statement under Section 161 of a victim having
regard to the subsequent event of the death of the
person making the statement who was a victim
would enable the prosecuting authority to rely upon
the said statement having regard to the nature and
content of the said statement as one of dying
declaration as deeming it and falling under Section
32(1) of Evidence Act and thereby commend all the
credence that would be applicable to a dying
declaration recorded and claimed as such.
Criminal Appeal No.752 of 2008 20 of 30Page 21
22. Keeping the above principle in mind, it can
be stated without any scope for contradiction that
when we examine the claim made on the statement
recorded by PW-4 of the deceased by applying
Section 162 (2), we have no hesitation in holding
that the said statement as relied upon by the trial
Court as an acceptable dying declaration in all force
was perfectly justified. We say so because no other
conflicting circumstance was either pointed out or
demonstrated before the trial Court or the High
Court or before us in order to exclude the said
document from being relied upon as a dying
declaration of the deceased. We reiterate that
having regard to the manner in which the said
statement was recorded at the time when the crime
was registered originally under Section 326 IPC
within the shortest time possible within which it
could be recorded by PW-4 in order to provide
proper medical treatment to the deceased by
sending him to the hospital, with no other intention
pointed out at the instance of the appellant to
discredit contents of the said statement, we hold
that the reliance placed upon the said statement as
the dying declaration of the deceased was perfectly
justified. Having regard to our above conclusion,
the said submission of the learned counsel for the
appellant also stands rejected.”
21. In the case on hand nothing was let in on the side of
the defence to contradict the presence of P.W.1 at the time of
occurrence, as well as subsequently when the deceased along
with the other injured persons, were taken to the police station
immediately after the occurrence. There was no reason to
doubt the presence of the deceased and the other injured
witnesses at the police station when the alleged statement
Ext.Ka-9 came to be recorded by P.W.6. A reference to the
Criminal Appeal No.752 of 2008 21 of 30
details contained in Ext.Ka-9 is in tune with what has been
narrated by the eye-witnesses P.Ws.1 to 3 before the Court.
There was nothing to contradict from the material available on
record in the form of evidence either documentary or oral in
order to hold that the deceased, could not have made the
statement before P.W.6. As has been noted by the courts
below, there was no delay involved in reporting the occurrence
to the police and the registration of the FIR. The further finding
of the courts below that there was no scope for any
manipulation at the instance of the police also strengthens the
reliance placed upon by the prosecution on Ext.Ka-9, by
treating the same as a dying declaration. When we apply
Section 162(2), the statute makes the position clear that the
statement as a dying declaration would squarely fall within the
said provision and has to only satisfy the stipulations
contained in Section 32(1).
22. Keeping the above factors in mind, when we apply
Section 32(1) to Ext.Ka-9 we find it, mentioned in every one of
the details of the case of the prosecution, which ultimately
resulted in the death of the deceased Zahiruddin, as well as
the injuries sustained by P.Ws.2 and 3, which fell for
consideration before the courts below. The very fact that the
Criminal Appeal No.752 of 2008 22 of 30Page 23
deceased who sustained such grievous injuries on the vital
parts of his body on 05.09.1997 at 3:00 pm, breathed his last
on 06.09.1997 at 3:30 pm, i.e. in a matter of 24 hours, was
sufficient to reach a conclusion that whether or not he was in
the expectation of his death, there could not have been any
scope to doubt the veracity of his statement as to the manner
in which the occurrence took place and the persons who were
responsible for the incident in question. Taking into account
the totality of the circumstances, namely, the motive behind
the incident, the mentioning of the names of the appellants
who were known to the deceased, as all of them belong to the
same village, the use of the weapons by the assailants, the
situation in which he was placed at the time when he made
the statement before P.W.6, where he could not have been
tutored to make the statement, having regard to the time
factor, the further statement of the doctor who issued the
postmortem certificate having come forward with an expert
opinion that in spite of the nature of injuries sustained the
deceased was fully capable of and was in a mind set to make a
statement, sufficiently demonstrated that Ext.Ka-9 was rightly
relied upon by the High Court as a dying declaration, squarely
falling within the statutory prescription of Section 32(1) of the
Criminal Appeal No.752 of 2008 23 of 30Page 24
Evidence Act, in order to rely upon the same for convicting the
appellants. We are, therefore, convinced that such reliance
placed upon by the High Court was perfectly justified and we
do not find any good grounds to differ from the same. We,
therefore, conclude and answer the said question in favour of
the prosecution.
23. When we come to the other question as to
whether
there was any controversy relating to the place of occurrence
in order to doubt the case of the prosecution, Mr. Jaspal Singh,
learned senior counsel appearing for the appellants contended
that in the FIR the complainant P.W.1 himself stated that he
came later and that the incident took place in his house; that
the staircase in the house was leading upto the first floor; that
the place where the incident took place was a narrow one; that
he was not certain as to whether all the accused opened fire or
one or two alone opened fire; that the firing took place only for
a minute; that when the accused entered the place P.Ws.2 and
3, as well as the deceased were facing north and that in
another place he stated that the deceased was present on the
roof and that no pellets were seen on the wall, nor any empty
cartridge was recovered. The learned counsel by referring to
the evidence of P.W.2 submitted that according to her she was
Criminal Appeal No.752 of 2008 24 of 30Page 25
in her house and that P.W.1 came later. It was pointed out that
the staircase inside the house led upto the second floor, while
P.Ws.2 and 3 and the deceased were in the Verandah of the
third floor, that the house of P.W.1 was on the eastern side of
the house of P.W.2, that the directions mentioned by her as to
how the parties were positioned at the time of occurrence,
were all circumstances, which go to show that there was no
cogency in the evidence of the so called eye-witnesses to
confirm that the occurrence took place at the place and in the
manner as narrated by them.
24. While making reference to the above submissions, we
only state that all the above submissions were considered
threadbare by both the courts below. In the High Court the so
called contradictions referred to on behalf of the appellants
were considered in detail in the following paragraphs and
ultimately rejected by stating as under:
“Much emphasis was laid on the contradictions
regarding place of occurrence. According to the
prosecution case, the incident took place in the
verandah of the house. Some contradictory
statements have been given by the eyewitnesses
regarding the situation of verandah. The I.O. prepared
the site plan, Ext.Ka-6, in which he has marked the
place of occurrence by letter ‘X’. From letter ‘A’ the
accused persons had made fire, at place ‘P’ he got the
pellets and from place A-1, L, B, the witnesses had
Criminal Appeal No.752 of 2008 25 of 30
seen the occurrence. According to the site plan Ext.Ka-
6, the place of occurrence was the third floor of the
house. This house was three storied. The I.O. has
shown 1st floor, 2nd floor and 3rd floor in his site plan,
meaning thereby, technically speaking, the ground
floor has been shown as 1st floor and 1st floor as 2nd
floor and 2nd floor as 3rd floor. There was also
misunderstanding between eyewitnesses regarding
narration of the storeyes of the house. The witnesses
were the illiterate rustic villagers who did not know the
difference between storey and floor. The ground floor
is narrated as 1st storey or 1st floor. We are of the
opinion that the I.O. had made negligence in preparing
site plan and did not show important things in it. For
example, he has not shown the house of PW-1
Shamshuddin in the site plan. He has also not
described in the site plan that the 2nd and 3rd storey of
the house was in the level of agricultural field situate
towards west or the ground floor or 1st floor was
situate on the low level of the agricultural field situate
towards west or the ground floor or 1st floor was
situate on the low level of the agricultural field situate
towards west.
PW-1 Shamshuddin, the real brother of the deceased
has stated in his cross-examination that the house of
the deceased was three storeyed. There was a ‘Zeena’
in the second storey of the house but there was no
‘Zeena’ in the 2nd storey. Further he has stated that in
the 3rd storey there were three rooms and verandah
but later on he has stated that three rooms and
verandah were situated in the 2nd storey and in the 3rd
storey there were two rooms and one verandah, in
which the incident took place. Further, he has stated
that ‘Zeena’ was present on the second storey of the
house from where the accused persons entered the
Verandah.
PW-2 Smt. Zabira has stated in her cross-examination
that the third storey of the house was in the level of
agricultural field situate towards west. Further, she
has stated that the incident had taken place in the 3rd
storey of the house.
Criminal Appeal No.752 of 2008 26 of 30Page 27
PW-3 Smt. Shahnaz has stated in her crossexamination that in the second storey of the house
there was no room but it was in the shape of
verandah. Further, she has stated that the incident
had taken place in the 2nd storey of the house. Further,
she has stated that the ‘Zeena’ was situate in the 2nd
storey of the house, which was in the level of the
agricultural field situate towards west.
The learned Trial Court has made a detailed discussion
over the said contradictions and he has given a finding
that due to illiteracy and rustic background some
contradictions have come in their statements. The I.O.
found blood in the ‘Verandah’ of the third storey. He
also found some pellets there. He had prepared memo
Ext.Ka-7. It is also said that the incient had taken
place in the ‘Verandah’ of the third storey of the
house. PW-2 Smt. Zabira has clearly stated in her
cross-examination that at the time of the incident all
the injured were sitting in the ‘Verandah’ of the third
storey. Thus, the place of occurrence was not
doubtful.”
25. Having considered the various facts noted by the Trial
Court and approved by the High Court in dealing with the
above submissions, we hold that the said submission does not
impress upon us in order to interfere with the judgment
impugned in this appeal. The said question is also, therefore,
answered against the appellants.
26. The next question that arises for consideration is as to
whether there was any doubt about the death of the deceased,
as submitted on behalf of the appellants.
Mr. Jaspal Singh,
learned senior counsel in his submissions referred to the
Criminal Appeal No.752 of 2008 27 of 30
evidence of P.W.4, Dr. Irfan Ahmad, who examined the injured
including the deceased at 5:45 pm on 05.09.1997 and
contended that according to the doctor all the injuries were
caused by firearm, that such injuries might have been caused
from the distance of 40 feet, that the injuries were on the front
side, that there was no injury on the head as compared to the
evidence of P.W.5, the postmortem doctor, who stated
categorically that injury No.1 was on the right side of the head,
which might have been caused by Lathicharge, which was also
the version of P.W.3. The learned counsel made further
reference to Ext.A-18 by which the death of the deceased was
communicated by the doctor to the police station for
conducting a postmortem and the postmortem held on
07.09.1997. By making further reference to Ext.Ka-5, the
postmortem report, which was issued by U.H.M. Hospital,
Kanpur by one Dr. B.S. Chauhan while the name of P.W.5 the
postmortem doctor who gave evidence was mentioned as Dr.
P.V.S. Chauhan of Ursala Hospital, Kanpur, the learned counsel
submitted that there were serious doubts as to whether it
related to the corpse of the deceased and the concerned
postmortem report really related to the deceased Zahiruddin
in this case. Though, in the first blush, the said contention
Criminal Appeal No.752 of 2008 28 of 30Page 29
made on behalf of the appellants appear to be of some
substance, on a close reading of the evidence of P.Ws.4 and 5,
we find that such instances pointed out by learned counsel
were all of insignificant factors and based on such factors it
cannot be held that there was any doubt at all as to the death
of the deceased or the injuries sustained by him as noted by
P.W.4 in Exts.Ka-2, Ka-3 and Ka-4. Ext.Ka-3 is related to the
deceased. Ext.Ka-5 postmortem certificate was issued by
P.W.5. We should also state that nothing was put to the above
said witnesses with reference to those alleged doubts relating
to the death of the deceased Zahiruddin. We are not,
therefore, inclined to entertain the said submission at this
stage in order to find fault with the case of the prosecution.
27. With that when we come to the last of the submissions
made on behalf of the appellants, namely,
whether there was
any scope to hold that the offence would fall under Section
304 Part I or II and not under Section 302 IPC and that no other
offence was made out,
we can straight away hold that having
regard to the extent of the injuries sustained by the deceased,
P.Ws.2 and 3 and the aggression with which the offence was
committed as against the victims, which resulted in the loss of
Criminal Appeal No.752 of 2008 29 of 30Page 30
life of one person considered along with the motive, which was
such a petty issue, we are of the firm view that there was
absolutely no scope to reduce the gravity of the offence
committed by the appellants. We are, therefore, not
persuaded to accept the said feeble submission made on
behalf of the appellants to modify the conviction and the
sentence imposed.
28. For all the above stated reasons, we do not find any
merit in this appeal. The appeal fails and the same is
dismissed.
………….……….…………………………..J.
[Dr. B.S. Chauhan]
...……….…….………………………………J.
[Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
July 02, 2013.
Criminal Appeal No.752 of 2008 30 of 30
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.752 OF 2008
Rafique @ Rauf & others ….Appellants
VERSUS
State of U.P. ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal by the eight accused who were proceeded against
in Crime No.397/97 in Sessions Case No.35/1998 in the Court
of Second Additional Sessions Judge, District Kannauj, were
charged and convicted for offences falling under Section 302
read with 149, 307 read with 149, as well as for offences under
Sections 452, 148 and 147 IPC. All the accused were convicted
and inflicted with the punishment of life imprisonment for the
offence under Section 302 read with 149 IPC, 5 year rigorous
imprisonment for the offence under Section 307 read with 149
IPC, 1 year rigorous imprisonment for the offence under
Section 452 IPC, 6 months rigorous imprisonment for the
offence under Section 148 IPC and 3 months rigorous
imprisonment for the offence under Section 147 IPC.
Criminal Appeal No.752 of 2008 1 of 30Page 2
2. The case of the prosecution as projected before the Court
below was that 7 days prior to the date of occurrence there
was some dispute between the children of the parties of the
victim and the accused. A goat belonging to the accused
persons stated to have gone into the maize field of the
deceased Zahiruddin and when the son of the said deceased
objected to that, he was caught by the father of the accused 1
to 6. When the deceased Zahiruddin came to know about the
said conduct of Masook, father of the accused 1 to 6, he went
and protested by questioning him as to how for the grazing of
the maize crop by the goat belonging to Masook, the son of
the deceased could be held in captivity. The said protest
raised by deceased Zahiruddin was not liked by Masook and
both stated to have abused each other. Pursuant to the said
incident, on 05.09.1997 at about 3.00 pm, all the appellantsaccused armed with country-made gun (Addhi) as well as
country-made pistols and the first accused holding his gun,
entered the house of the deceased where P.Ws.1 to 3 were
conversing with the deceased, Zahiruddin and made
indiscriminate firing towards the deceased and the other
persons. The deceased, P.Ws.2 and 3 stated to have sustained
firearm injuries and they raised alarm pursuant to which others
Criminal Appeal No.752 of 2008 2 of 30
rushed to the spot. The appellants stated to have escaped
from the scene of occurrence after giving further threats.
3. The deceased and other injured were stated to have been
brought to Kotwali Farrukhabad, where P.W.1 lodged the
written complaint Ext. Ka-1. The crime was registered as Crime
No.397/97, as was evident from the G.D. entry Ext.Ka-14. The
Investigating Officer P.W.6 stated to have recorded the
statement of the deceased Zahiruddin purportedly under
Section 161 Cr.P.C under Ext. Ka-9. The injured along with the
deceased stated to have been sent to the hospital where the
injured persons including the deceased were examined by the
doctor. The injury report of the deceased Zahiruddin was Ext.
Ka-3, the injury report of P.W.2 was Ext. Ka-4 and the injury
report of P.W.3 was Ext. Ka-2. The deceased Zahiruddin died
on the next day, i.e. on 06.09.1997 at 3:30 pm. The inquest
memo was Ext. Ka-15 and the postmortem report was Ext. Ka-
5. P.W.4 Dr. Irfan Ahmad was the doctor who conducted the
postmortem and issued the postmortem certificate. The
Investigation was initially carried out by P.W.6 and was later
on completed by P.W.8. The charge-sheet was Ext.Ka-12.
P.W.2, the wife of the deceased suffered two injuries, while
P.W.3, the niece of the deceased, suffered one injury. The
Criminal Appeal No.752 of 2008 3 of 30Page 4
deceased suffered as many as eight injuries. It was in evidence
that all the injuries were due to gun shots. The distance
between the place of occurrence and the police station was
stated to be 20 kilometers. All the injured were examined by
the doctor by 5:45 pm to 6.10 pm on 05.09.1997 itself. It is in
the evidence of P.W.5, postmortem doctor that based on the
injuries noted on the body of the deceased it could be stated
that he was capable of speaking in spite of the injuries
sustained by him. The prosecution examined P.Ws.1 to 9.
Based on the evidence before the trial Court and the
incriminating circumstances existed against the appellants,
they were questioned under Section 313 Cr.P.C and all the
appellants denied their involvement and stated that due to
animosity the evidence had been adduced against them. It
was also stated that all of them belong to one and the same
family. They did not choose to let in any evidence in support of
their defence. It is in the above-stated background the
conviction and sentence came to be imposed by the trial
Court, which was also affirmed by the High Court in toto.
4. Assailing the judgment impugned, Mr. Jaspal Singh, learned
senior counsel for the appellants after taking us through the
relevant evidence on record, as well as the judgments
Criminal Appeal No.752 of 2008 4 of 30Page 5
impugned before us submitted that the presence of P.W.1 in
the place of occurrence was doubtful; that there were
prevaricating statements by the witnesses about the exact
place of occurrence; that there were grave doubts as to
whether all the accused opened fire or only few of them; that
having regard to the position in which P.Ws.2, 3 and deceased
were placed at the time of occurrence the occurrence could
not have been witnessed by the said so called eye-witnesses
as narrated by them and that though only fire shot injuries
were said to have been caused, not even a single pellet or an
empty cartridge was recovered from the scene of occurrence.
According to the learned senior counsel, there were serious
doubts as to whether the postmortem report related to the
body of the deceased. The learned senior counsel also
contended that the accused were not questioned with
reference to the so called dying declaration of the deceased in
the 313 questioning. The learned senior counsel, therefore,
contended that all the above factors created lot of doubts as to
the factum of the occurrence, as well as the crime and that in
any event the offence under Section 302 IPC cannot be said to
have been made out and at best it may fall under Section 304
Part I or II and that Section 148 will not apply. According to
Criminal Appeal No.752 of 2008 5 of 30Page 6
him, if at all the accused had any grievance it could have been
only against Shamshuddin, but certainly none had any object
to kill Zahiruddin, the deceased.
5. As against the above submissions, Mr. Aarohi Bhalla, learned
counsel for the State by referring to the judgment of the trial
Court contended that after a detailed consideration of the
stand of the appellants, the trial Court was able to conclude
with all certainty about the place of occurrence and, therefore,
the said submission made on behalf of the appellants do not
merit any consideration. According to the learned State
counsel, the family of P.W.1 and the deceased were only living
in two different portions of the same building and, therefore,
the submission raising doubts about the place of occurrence
does not merit any consideration. According to him the
medical evidence fully established the use of firearm in the
incident. The learned State counsel by making reference to
Ext.Ka-15, inquest report issued by Irshad Ahmad at 10:55,
contended that there was no doubt about the death of the
deceased and the postmortem report relating to his death was
also proved.
Criminal Appeal No.752 of 2008 6 of 30
6. Having heard learned counsel for the respective parties and
having bestowed our serious consideration to the various
submissions made before us, we find that the submissions of
learned counsel for the appellants raise the following questions
for consideration, namely:-
I. Whether the reliance placed upon by the High Court
on Ext.Ka-9, the recorded statement of the deceased
Zahiruddin, which was relied upon by the High Court as a
dying declaration and the confirmation of the conviction on
that basis was justified?
II. Whether there was any controversy relating to the
place of occurrence in order to doubt the case of the
prosecution?
III. Whether there was any doubt about the death of the
deceased as submitted on behalf of the appellants?
IV. Whether there was any scope to hold that the offence
would fall under Section 304 Part I or II and not under
Section 302 and other offences for which they were
convicted?
Criminal Appeal No.752 of 2008 7 of 30Page 8
7. At the outset it will have to be noted that except mere denial
of the offence alleged against the accused in their 313
questioning no other specific stand was taken on behalf of the
appellants nor was any defence evidence, oral or
documentary, placed before the Court. The motive for the
offence was stated to be the grazing of maize crop by the goat
belonging to the father of the appellants-accused 1 to 6 and
the grand-father of appellant-accused 8 in the field of the
deceased seven days prior to the date of occurrence.
Admittedly, all the accused were closely related. Most of them
belong to one family, namely, Masook. P.W.2 Shamshuddin,
the complainant is the brother of the deceased. As far as the
grazing of the maize crop as alleged by the complainant party
was concerned not much argument was raised on behalf of the
appellants. Even in the evidence nothing was stated to have
been brought out in order to reject the said case pleaded by
the prosecution. There was also no dispute about the fact that
the occurrence took place in the premises of the deceased, as
well as the complainant and other injured witnesses, namely,
P.Ws.2 and 3. As regards the presence of the deceased and
the other injured witnesses, namely, P.Ws.2 and 3 in the police
station at the instance of P.W.1 who was also an eye-witness
Criminal Appeal No.752 of 2008 8 of 30Page 9
to the occurrence, was also not seriously disputed. We also
find that the occurrence, which was stated to have taken place
at 3.00 pm on 05.09.1997, was brought to the notice of the
police without further loss of time, which was located about 20
kilometers away from the place of occurrence. There was also
no serious argument raised as regards the registration of the
FIR relating to the occurrence. Both the Courts below,
therefore, held in one voice that there was no chance of any
manipulation at the instance of the police.
8. While the occurrence had taken place at 3.00 pm, the
deceased who was seriously injured along with the other
injured witnesses P.Ws.2 and 3, were rushed to the hospital
from the police station who were examined by P.W.4 between
5.45 pm to 6.10 pm on 05.09.1997. The injury reports Ext.Ka-
3, Ext.Ka-4 and Ext.Ka-2 of the deceased, P.W.2 and P.W.3,
read along with the evidence of P.W.4 Dr. Irfan Ahmad,
sufficiently establish the nature of injuries sustained by all the
three of them. Ext.Ka-9 the statement of the deceased
recorded under Section 161 Cr.P.C. by P.W.6 at the police
station when he was in the injured condition immediately after
the incident, disclose the specific overt act against the
appellants-accused as revealed by the deceased himself. It is
Criminal Appeal No.752 of 2008 9 of 30Page 10
true that the trial Court declined to rely upon the said
statement by treating it as a dying declaration, while the High
Court fully relied upon the said statement as a dying
declaration of the deceased. In that respect certain other
factors, which are relevant to be stated are that the deceased
was 45 years old at the time of his death, as noted by P.W.4
Dr. Irfan Ahmad. P.W.5, Dr. P.V.S. Chauhan, who conducted the
postmortem of the deceased, in the course of the crossexamination, categorically stated that because of the injury it
cannot be concluded that the injured was unconscious and was
not able to speak. He further stated that after getting the
injuries in the brain it is not necessary that the injured would
immediately go to coma stage and that it cannot be definitely
stated within which time a person would reach the state of
coma. It is also relevant to state that it has come in the
evidence of P.Ws.1 to 3 that the families of the deceased
Zahiruddin, as well as his brother P.W.1 were living in the
same premises in two different portions. The presence of
P.W.3, the niece of the deceased Zahiruddin, at the place and
time of occurrence has also been sufficiently stated and
corroborated by all the three witnesses.
Criminal Appeal No.752 of 2008 10 of 30
9. Keeping the above factors in mind when we examine the
submissions made on behalf of the appellants, as far as the
reliance placed upon by the High Court in the impugned
judgment on Ext.Ka-9 by treating it as a dying declaration, the
High Court has noted the details mentioned in the said exhibit
by extracting the same in the judgment impugned, which is to
the following effect:
“On the west side of my house, there is field of corn
crop wherein 7 days prior to today i.e. 5.9.97, the
goats of my co-villager Massok s/o Altaf had entered.
My younger son Ezaz, aged 7 years had caught goat
and was taking the same away on which Massok had
freed the goat and started to take away my son, on
which we came to know and I asked him not to do so
that you are making the goat to eat the crop and
simultaneously you are taking my son also away, it is
not the right thing, on which they hurled abuses.
Today on 5.9.97 I was sitting in the verandah of my
house that suddenly around 3 o’clock Rauf, Ishtiyaq,
Ataullah, Ayub, Pauva alias Pappu, Latif sons of
Massok, Nisar s/o Farukh and Karim s/o Rauf came
there out of them Latif was carrying Adhi and Rauf was
carrying desi gun and others were carrying tamancha,
and they came to my house climbing the stairs, my
brother Shamsuddin, my wife Zabira and Mushtaq’s
daughter Shehnaz also present there. All the accused
persons after arriving started firing indiscriminately on
myself and my family members with an intention to
kill us, on sustaining injuries I fell down on the ground
and my wife and Shehnaz d/o Mushtaq also sustained
pellet injuries. Then we raised alarm, hearing the
same Shamsuddin, who had gone out of the house and
Mushtaq s/o Defendar and Majeed s/o Panna came
there and challenged the accused persons on which
the accused persons went away towards their house.
The accused persons were threatening of dire
consequences. The accused persons had fired from
Criminal Appeal No.752 of 2008 11 of 30Page 12
close distance. I have sustained grievous injuries on
different part of my body. My voice is becoming
unclear, and my brother Shamsuddin has brought me
to Thana on jeep.”
10. The said statement refers to the incident, which took
place seven days prior to the date of occurrence, which formed
the motive for the occurrence. It also refers to the presence of
all the accused on 05.09.1997 at 3 O’clock in his house and
the arms, which were in their possession. It also mentions the
presence of P.Ws.1 to 3 at that time. It further states as to how
indiscriminate firing was made by the accused, which resulted
in the injuries sustained by him, as well as P.Ws.2 and 3. It also
refers to the alarm raised by P.W.2 and the rushing in of
Mushtaq s/o Defendar and Majeed s/o Panna pursuant to which
the appellants-accused went away after making further threats
against the victim. Finally, it was stated that he was taken to
the police station by his brother P.W.1 in a Jeep.
11. The important question for consideration, therefore, is
whether the said statement made by the deceased can be
taken as a dying declaration and reliance can be placed upon
the same. The High Court while relying upon the said
statement has noted certain circumstances, namely, the
Criminal Appeal No.752 of 2008 12 of 30Page 13
evidence of P.W.6, Investigating Officer, who deposed that the
deceased was fully conscious when he was brought to the
police station with injuries on his face, chest and other parts of
the body and that he recorded his statement. It was also noted
that after recording his statement the Investigating Officer
referred him to the hospital for medical examination and
treatment. The High Court, thereafter, noted the evidence of
P.W.5 the postmortem doctor who categorically stated in his
cross-examination that the injured was also in a position to
speak and that it was not necessary that in all cases after
sustaining injury in the brain a person cannot retain his
conscience or will not be in a position to speak. The High Court
noted the further statement of the doctor that it is not
necessary that in every such case the patient would
immediately go to a coma stage.
12. The High Court, therefore, reached a conclusion that
the deceased Zahiruddin, was in a position to speak and that
the statement under Ext.Ka-9 was given by him who expired
on the next day evening. It further stated that since it was the
last statement of the deceased to the Investigating Officer it
can very well be treated as a dying declaration. The High Court
was conscious of the fact that the trial Court did not place any
Criminal Appeal No.752 of 2008 13 of 30Page 14
reliance on the said statement which in the opinion of the High
Court was erroneous.
13. In this context when we make reference to the
statutory provisions concerning the extent of reliance that can
be placed upon the dying declaration and also the implication
of Section 162(2) Cr.P.C. vis-à-vis Section 32(1) of the
Evidence Act, 1872, we feel that it will be appropriate to make
a reference to the decision of this Court reported in Khushal
Rao vs. State of Bombay - AIR 1958 SC 22. Justice Sinha
speaking for the Bench after making further reference to a Full
Bench decision of the High Court of Madras headed by Sir
Lionel Leach, C.J., a decision of the Judicial Committee of the
Privy Council and ‘Phipson on Evidence’ – 9th Ed., formulated
certain principles to be applied to place any reliance upon such
statements. We feel that the substance of the principles stated
in the Full Bench decision and the Judicial Committee of the
Privy Council and the author Phipson’s view point on accepting
a statement as dying declaration can also be noted in order to
understand the principles ultimately laid down by this Court in
paragraph 16.
Criminal Appeal No.752 of 2008 14 of 30
14. The Full Bench of the Madras High Court reported in In
re, Guruswami Tevar - ILR 1940 Mad 158 at page 170 (AIR
1940 Mad 196 at p.200) in its unanimous opinion stated that
no hard and fast rule can be laid down as to when a dying
declaration should be accepted, except stating that each case
must be decided in the light of its own facts and other
circumstances. What all the Court has to ultimately conclude is
whether the Court is convinced of the truthfulness of the
statement, notwithstanding that there was no corroboration in
the true sense. The thrust was to the position that the Court
must be fully convinced of the truth of the statement and that
it should not give any scope for suspicion as to its credibility.
This Court noted that the High Court of Patna and Nagpur also
expressed the same view in the decisions reported in
Mohamad Arif vs. Emperor – AIR 1941 Pat.409 (J) and
Gulabrao Krishnajee vs. Emperor – AIR 1945 Nag. 153 (K).
15. The Judicial Committee of the Privy Council while
dealing with a case, which went from Ceylon, which was based
on an analogous provision to Section 32(1) of the Indian
Evidence Act, took the view that apart from the evidence of
the deceased the other evidence was not sufficient to warrant
a conviction. It was, however, held that in that case when the
Criminal Appeal No.752 of 2008 15 of 30Page 16
statement of the deceased was received and believed as it
evidently was by the jury it was clear and unmistakable in its
effect and thereby, the conviction was fully justified and was
inevitable. The Judicial Committee noted that the factum of a
murderous attack, though resulted in the cutting of the throat
and the victim was not in a position to speak but yet by mere
signs she was able to convey what she intended to speak out,
and the said evidence was brought within the four corners of
the concept of dying declaration, which formed the sole basis
ultimately for the Court to convict the accused, which was also
confirmed by the Supreme Court of Ceylon, as well as by the
Judicial Committee of the Privy Council.
16. The author Phipson in his 9th Ed., of the book on
Evidence made the following observations:
"......The deceased then signed a statement
implicating the prisoner, but which was not elicited by
question and answer, and died on March 20. It was
objected that being begun in that form, it was
inadmissible:- Held (1) the questions and answers as
to his state of mind were no part of the dying
declaration; (2) that even if they were, they only
affected its weight, not its admissibility; and (3) that
the declaration was sufficient, without other evidence,
for conviction R. v. Fitzpatrick, (1910) 46 Ir. L.T. 173
(M)."
Criminal Appeal No.752 of 2008 16 of 30Page 17
17. After considering the above legal principles, this Court
has set down the following six tests to be applied for relying
upon a material statement as a dying declaration:
“16. On a review of the relevant provisions of the
Evidence Act and of the decided cases in the different
High Courts in India and in this Court, we have come
to the conclusion, in agreement with the opinion of the
Full Bench of the Madras High Court, aforesaid, (1)
that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of
conviction unless it is corroborated; (2) that each case
must be determined on its own facts keeping in view
the circumstances in which the dying declaration was
made; (3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind of
evidence than other pieces of evidence; (4) that a
dying declaration stands on the same footing as
another piece of evidence and has to be judged in the
light of surrounding circumstances and with reference
to the principles governing the weighing of evidence;
(5) that a dying declaration which has been recorded
by a competent magistrate in the proper manner, that
is to say, in the form of questions and answers, and,
as far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than a
dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human
memory and human character, and (6) that in order to
test the reliability of a dying declaration, the Court has
to keep in view the circumstances like the opportunity
of the dying man for observation, for example,
whether there was sufficient light if the crime was
committed at night; whether the capacity of the man
to remember the facts stated had not been impaired
at the time he was making the statement, by
circumstances beyond his control; that the statement
has been consistent throughout if he had several
opportunities of making a dying declaration apart from
the official record of it; and that the statement had
been made at the earliest opportunity and was not the
Criminal Appeal No.752 of 2008 17 of 30
result of tutoring by interested parties.” (Emphasis
added)
18. We also wish to add that as on date, there is no
statutory prescription as to in what manner or the procedure
to be followed for recording a dying declaration to fall within
the four corners of Section 32(1) of the Evidence Act. The
presence of Magistrate; certification of the doctor as to the
mental or the physical status of the person making the
declaration, were all developed by judicial pronouncements. As
has been repeatedly stated in various decisions, it will have to
be found out whether in the facts and circumstances of any
case the reliance placed upon by the prosecution on a
statement alleged to have been made by the deceased prior to
his death can be accepted as a dying declaration, will depend
upon the facts and circumstances that existed at the time of
making the statement. In that case it would mainly depend
upon the date and time vis-à-vis the occurrence when the
statement was alleged to have been made, the place at which
it was made, the person to whom the said statement was
made, the sequence of events, which led the person
concerned to make the statement, the physical and mental
condition of the person who made the statement, the cogency
with which any such statement was made, the attending
Criminal Appeal No.752 of 2008 18 of 30Page 19
circumstances, whether throw any suspicion as to the factum
of the statement said to have been made or any other factor
existing in order to contradict the statement said to have been
made as claimed by the prosecution, the nexus of the person
who made the statement to the alleged crime and the parties
involved in the crime, the circumstance which made the
person to come forward with the statement and last but not
the least, whether the said statement fully support the case of
the prosecution.
19. In this context, we can also make a reference to a
decision of this Court reported in Cherlopalli Cheliminabi
Saheb and another vs. State of Andhra Pradesh - (2003)
2 SCC 571, where it was held that it was not absolutely
mandatory that in every case a dying declaration should be
recorded only by a Magistrate. The said position was reiterated
in Dhan Singh vs. State of Haryana – (2010) 12 SCC 277
wherein, it was held that neither Section 32 of the Evidence
Act nor Section 162(2) of the Cr.P.C., mandate that the dying
declaration has to be recorded by a designated or particular
person and that it was only by virtue of the development of
law and the guidelines settled by the judicial pronouncements
that it is normally accepted that such declaration would be
Criminal Appeal No.752 of 2008 19 of 30Page 20
recorded by a Magistrate or by a doctor to eliminate the
chances of any doubt or false implication by the prosecution in
the course of investigation.
20. In a recent decision of this Court reported in Sri
Bhagwan vs. State of U.P. – 2012 (11) SCALE 734, to which
one of us was a party, dealt with more or less an identical
situation and held as under in paragraphs 21 and 22:
“21. As far as the implication of 162 (2) of
Cr.P.C. is concerned, as a proposition of law, unlike
the excepted circumstances under which 161
statement could be relied upon, as rightly
contended by learned senior counsel for the
respondent, once the said statement though
recorded under Section 161 Cr.P.C. assumes the
character of dying declaration falling within the four
corners of Section 32(1) of Evidence Act, then
whatever credence that would apply to a
declaration governed by Section 32 (1) should
automatically deemed to apply in all force to such a
statement though was once recorded under Section
161 Cr.P.C. The above statement of law would
result in a position that a purported recorded
statement under Section 161 of a victim having
regard to the subsequent event of the death of the
person making the statement who was a victim
would enable the prosecuting authority to rely upon
the said statement having regard to the nature and
content of the said statement as one of dying
declaration as deeming it and falling under Section
32(1) of Evidence Act and thereby commend all the
credence that would be applicable to a dying
declaration recorded and claimed as such.
Criminal Appeal No.752 of 2008 20 of 30Page 21
22. Keeping the above principle in mind, it can
be stated without any scope for contradiction that
when we examine the claim made on the statement
recorded by PW-4 of the deceased by applying
Section 162 (2), we have no hesitation in holding
that the said statement as relied upon by the trial
Court as an acceptable dying declaration in all force
was perfectly justified. We say so because no other
conflicting circumstance was either pointed out or
demonstrated before the trial Court or the High
Court or before us in order to exclude the said
document from being relied upon as a dying
declaration of the deceased. We reiterate that
having regard to the manner in which the said
statement was recorded at the time when the crime
was registered originally under Section 326 IPC
within the shortest time possible within which it
could be recorded by PW-4 in order to provide
proper medical treatment to the deceased by
sending him to the hospital, with no other intention
pointed out at the instance of the appellant to
discredit contents of the said statement, we hold
that the reliance placed upon the said statement as
the dying declaration of the deceased was perfectly
justified. Having regard to our above conclusion,
the said submission of the learned counsel for the
appellant also stands rejected.”
21. In the case on hand nothing was let in on the side of
the defence to contradict the presence of P.W.1 at the time of
occurrence, as well as subsequently when the deceased along
with the other injured persons, were taken to the police station
immediately after the occurrence. There was no reason to
doubt the presence of the deceased and the other injured
witnesses at the police station when the alleged statement
Ext.Ka-9 came to be recorded by P.W.6. A reference to the
Criminal Appeal No.752 of 2008 21 of 30
details contained in Ext.Ka-9 is in tune with what has been
narrated by the eye-witnesses P.Ws.1 to 3 before the Court.
There was nothing to contradict from the material available on
record in the form of evidence either documentary or oral in
order to hold that the deceased, could not have made the
statement before P.W.6. As has been noted by the courts
below, there was no delay involved in reporting the occurrence
to the police and the registration of the FIR. The further finding
of the courts below that there was no scope for any
manipulation at the instance of the police also strengthens the
reliance placed upon by the prosecution on Ext.Ka-9, by
treating the same as a dying declaration. When we apply
Section 162(2), the statute makes the position clear that the
statement as a dying declaration would squarely fall within the
said provision and has to only satisfy the stipulations
contained in Section 32(1).
22. Keeping the above factors in mind, when we apply
Section 32(1) to Ext.Ka-9 we find it, mentioned in every one of
the details of the case of the prosecution, which ultimately
resulted in the death of the deceased Zahiruddin, as well as
the injuries sustained by P.Ws.2 and 3, which fell for
consideration before the courts below. The very fact that the
Criminal Appeal No.752 of 2008 22 of 30Page 23
deceased who sustained such grievous injuries on the vital
parts of his body on 05.09.1997 at 3:00 pm, breathed his last
on 06.09.1997 at 3:30 pm, i.e. in a matter of 24 hours, was
sufficient to reach a conclusion that whether or not he was in
the expectation of his death, there could not have been any
scope to doubt the veracity of his statement as to the manner
in which the occurrence took place and the persons who were
responsible for the incident in question. Taking into account
the totality of the circumstances, namely, the motive behind
the incident, the mentioning of the names of the appellants
who were known to the deceased, as all of them belong to the
same village, the use of the weapons by the assailants, the
situation in which he was placed at the time when he made
the statement before P.W.6, where he could not have been
tutored to make the statement, having regard to the time
factor, the further statement of the doctor who issued the
postmortem certificate having come forward with an expert
opinion that in spite of the nature of injuries sustained the
deceased was fully capable of and was in a mind set to make a
statement, sufficiently demonstrated that Ext.Ka-9 was rightly
relied upon by the High Court as a dying declaration, squarely
falling within the statutory prescription of Section 32(1) of the
Criminal Appeal No.752 of 2008 23 of 30Page 24
Evidence Act, in order to rely upon the same for convicting the
appellants. We are, therefore, convinced that such reliance
placed upon by the High Court was perfectly justified and we
do not find any good grounds to differ from the same. We,
therefore, conclude and answer the said question in favour of
the prosecution.
23. When we come to the other question as to
whether
there was any controversy relating to the place of occurrence
in order to doubt the case of the prosecution, Mr. Jaspal Singh,
learned senior counsel appearing for the appellants contended
that in the FIR the complainant P.W.1 himself stated that he
came later and that the incident took place in his house; that
the staircase in the house was leading upto the first floor; that
the place where the incident took place was a narrow one; that
he was not certain as to whether all the accused opened fire or
one or two alone opened fire; that the firing took place only for
a minute; that when the accused entered the place P.Ws.2 and
3, as well as the deceased were facing north and that in
another place he stated that the deceased was present on the
roof and that no pellets were seen on the wall, nor any empty
cartridge was recovered. The learned counsel by referring to
the evidence of P.W.2 submitted that according to her she was
Criminal Appeal No.752 of 2008 24 of 30Page 25
in her house and that P.W.1 came later. It was pointed out that
the staircase inside the house led upto the second floor, while
P.Ws.2 and 3 and the deceased were in the Verandah of the
third floor, that the house of P.W.1 was on the eastern side of
the house of P.W.2, that the directions mentioned by her as to
how the parties were positioned at the time of occurrence,
were all circumstances, which go to show that there was no
cogency in the evidence of the so called eye-witnesses to
confirm that the occurrence took place at the place and in the
manner as narrated by them.
24. While making reference to the above submissions, we
only state that all the above submissions were considered
threadbare by both the courts below. In the High Court the so
called contradictions referred to on behalf of the appellants
were considered in detail in the following paragraphs and
ultimately rejected by stating as under:
“Much emphasis was laid on the contradictions
regarding place of occurrence. According to the
prosecution case, the incident took place in the
verandah of the house. Some contradictory
statements have been given by the eyewitnesses
regarding the situation of verandah. The I.O. prepared
the site plan, Ext.Ka-6, in which he has marked the
place of occurrence by letter ‘X’. From letter ‘A’ the
accused persons had made fire, at place ‘P’ he got the
pellets and from place A-1, L, B, the witnesses had
Criminal Appeal No.752 of 2008 25 of 30
seen the occurrence. According to the site plan Ext.Ka-
6, the place of occurrence was the third floor of the
house. This house was three storied. The I.O. has
shown 1st floor, 2nd floor and 3rd floor in his site plan,
meaning thereby, technically speaking, the ground
floor has been shown as 1st floor and 1st floor as 2nd
floor and 2nd floor as 3rd floor. There was also
misunderstanding between eyewitnesses regarding
narration of the storeyes of the house. The witnesses
were the illiterate rustic villagers who did not know the
difference between storey and floor. The ground floor
is narrated as 1st storey or 1st floor. We are of the
opinion that the I.O. had made negligence in preparing
site plan and did not show important things in it. For
example, he has not shown the house of PW-1
Shamshuddin in the site plan. He has also not
described in the site plan that the 2nd and 3rd storey of
the house was in the level of agricultural field situate
towards west or the ground floor or 1st floor was
situate on the low level of the agricultural field situate
towards west or the ground floor or 1st floor was
situate on the low level of the agricultural field situate
towards west.
PW-1 Shamshuddin, the real brother of the deceased
has stated in his cross-examination that the house of
the deceased was three storeyed. There was a ‘Zeena’
in the second storey of the house but there was no
‘Zeena’ in the 2nd storey. Further he has stated that in
the 3rd storey there were three rooms and verandah
but later on he has stated that three rooms and
verandah were situated in the 2nd storey and in the 3rd
storey there were two rooms and one verandah, in
which the incident took place. Further, he has stated
that ‘Zeena’ was present on the second storey of the
house from where the accused persons entered the
Verandah.
PW-2 Smt. Zabira has stated in her cross-examination
that the third storey of the house was in the level of
agricultural field situate towards west. Further, she
has stated that the incident had taken place in the 3rd
storey of the house.
Criminal Appeal No.752 of 2008 26 of 30Page 27
PW-3 Smt. Shahnaz has stated in her crossexamination that in the second storey of the house
there was no room but it was in the shape of
verandah. Further, she has stated that the incident
had taken place in the 2nd storey of the house. Further,
she has stated that the ‘Zeena’ was situate in the 2nd
storey of the house, which was in the level of the
agricultural field situate towards west.
The learned Trial Court has made a detailed discussion
over the said contradictions and he has given a finding
that due to illiteracy and rustic background some
contradictions have come in their statements. The I.O.
found blood in the ‘Verandah’ of the third storey. He
also found some pellets there. He had prepared memo
Ext.Ka-7. It is also said that the incient had taken
place in the ‘Verandah’ of the third storey of the
house. PW-2 Smt. Zabira has clearly stated in her
cross-examination that at the time of the incident all
the injured were sitting in the ‘Verandah’ of the third
storey. Thus, the place of occurrence was not
doubtful.”
25. Having considered the various facts noted by the Trial
Court and approved by the High Court in dealing with the
above submissions, we hold that the said submission does not
impress upon us in order to interfere with the judgment
impugned in this appeal. The said question is also, therefore,
answered against the appellants.
26. The next question that arises for consideration is as to
whether there was any doubt about the death of the deceased,
as submitted on behalf of the appellants.
Mr. Jaspal Singh,
learned senior counsel in his submissions referred to the
Criminal Appeal No.752 of 2008 27 of 30
evidence of P.W.4, Dr. Irfan Ahmad, who examined the injured
including the deceased at 5:45 pm on 05.09.1997 and
contended that according to the doctor all the injuries were
caused by firearm, that such injuries might have been caused
from the distance of 40 feet, that the injuries were on the front
side, that there was no injury on the head as compared to the
evidence of P.W.5, the postmortem doctor, who stated
categorically that injury No.1 was on the right side of the head,
which might have been caused by Lathicharge, which was also
the version of P.W.3. The learned counsel made further
reference to Ext.A-18 by which the death of the deceased was
communicated by the doctor to the police station for
conducting a postmortem and the postmortem held on
07.09.1997. By making further reference to Ext.Ka-5, the
postmortem report, which was issued by U.H.M. Hospital,
Kanpur by one Dr. B.S. Chauhan while the name of P.W.5 the
postmortem doctor who gave evidence was mentioned as Dr.
P.V.S. Chauhan of Ursala Hospital, Kanpur, the learned counsel
submitted that there were serious doubts as to whether it
related to the corpse of the deceased and the concerned
postmortem report really related to the deceased Zahiruddin
in this case. Though, in the first blush, the said contention
Criminal Appeal No.752 of 2008 28 of 30Page 29
made on behalf of the appellants appear to be of some
substance, on a close reading of the evidence of P.Ws.4 and 5,
we find that such instances pointed out by learned counsel
were all of insignificant factors and based on such factors it
cannot be held that there was any doubt at all as to the death
of the deceased or the injuries sustained by him as noted by
P.W.4 in Exts.Ka-2, Ka-3 and Ka-4. Ext.Ka-3 is related to the
deceased. Ext.Ka-5 postmortem certificate was issued by
P.W.5. We should also state that nothing was put to the above
said witnesses with reference to those alleged doubts relating
to the death of the deceased Zahiruddin. We are not,
therefore, inclined to entertain the said submission at this
stage in order to find fault with the case of the prosecution.
27. With that when we come to the last of the submissions
made on behalf of the appellants, namely,
whether there was
any scope to hold that the offence would fall under Section
304 Part I or II and not under Section 302 IPC and that no other
offence was made out,
we can straight away hold that having
regard to the extent of the injuries sustained by the deceased,
P.Ws.2 and 3 and the aggression with which the offence was
committed as against the victims, which resulted in the loss of
Criminal Appeal No.752 of 2008 29 of 30Page 30
life of one person considered along with the motive, which was
such a petty issue, we are of the firm view that there was
absolutely no scope to reduce the gravity of the offence
committed by the appellants. We are, therefore, not
persuaded to accept the said feeble submission made on
behalf of the appellants to modify the conviction and the
sentence imposed.
28. For all the above stated reasons, we do not find any
merit in this appeal. The appeal fails and the same is
dismissed.
………….……….…………………………..J.
[Dr. B.S. Chauhan]
...……….…….………………………………J.
[Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
July 02, 2013.
Criminal Appeal No.752 of 2008 30 of 30
