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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.

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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 appellants-

accused  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  

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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  

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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  

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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  

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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.

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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?

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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  

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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  

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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  cross-

examination, 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.  

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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  

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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  

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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  

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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.  

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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  

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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)."  

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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  

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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  

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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  

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Page 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.  

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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  

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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  

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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  

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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  

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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  

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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.

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PW-3  Smt.  Shahnaz  has  stated  in  her  cross- examination 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  

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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  

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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  

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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.

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