ABRARversusTHE STATE OF UTTAR PRADESH

              [2010] 13 (ADDL.) S.C.R. 1217


                         A BRAR                                A
                             v.
            THE STATE OF UTTAR PRADESH
            (Criminal Appeal No. 1668 of 2005)
                  DECEMBER 16, 2010
                                                               8
      [HARJIT SINGH BEDI, P. SATHASIVAM AND
         CHANDRAMAULI KR. PRASAD, JJ.]

     Penal Code, 1860 - s. 302 - Conviction under - Victim
chased by accused and three others armed with weapons - C
Accused firing shot at victim from the back - Death of victim
- Recording of three dying declarations - Acquittal by trial
court on account of discrepancies in the dying declarations
and eye-witnesses turning hostile - High Court upholding
acquittal of others, however, convicting accused u/s.302 - On D
appeal, held: All three dying declarations, one which formed
the basis of FIR, second recorded by Sub-Inspector as a
statement uls. 161 Cr.P.C. and third recorded by Tahsildar,
unanimous - Minor discrepancies in the dying declarations
not relevant - Tahsildar recor<jed the dying declarations after E
the doctor certified that victim was fit to make statement -
 Thus, dying declarations were reliable - Motive established
between the parties - FIR was lodged promptly - FIR -
Evidence - Dying declaration - Criminal law - Motive - Code
of Criminal Procedure, 1973.
                                                               F
    According to the prosecution case, the parties were
on inimical terms. On the fateful day, at about 9.30 p.m.)
four accused armed with weapons chased advocate 'A'.
They shouted at each other that 'A' should be killed. The
appellant fired at 'A' from the rear. On hearing the shouts, G
PW 6 aQd PW 7 reached the place of incident and
witnesse<i the incident. 'A' was rushed to the hospital. PW
8-doctor attended 'A'. PW 5, junior of 'A' reached the
hospital and 'A' dictated the report to his junior and
                            1217                               H
    1218 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A signed it. FIR was registered under Section 307 IPC. PW
  9-Sub-lnspector as also PW 2-Tahsildar recorded the
  statement of 'A'. 'A' died the next day and the case was
  converted into one under Section 302 IPC. The accused
  were tried for an offence punishable u/s. 302/34 IPC. The
B trial court acquitted the accused since the two eye
  witnesses had turned hostile and there were several
  discrepancies in the three statements. The High Court
  convicted and sentenced the appellant u/s.302 IPC and
  upheld the acquittal of the other accused giving them
c benefit of doubt. Therefore, the appellant filed the instant
  appeal.

        Dismissing the appeal, the Court

       HELD: 1.1 The entire prosecution story would
D depend on the dying declarations. It must be borne in
  mind that all three dying declarations, the first one which
  formed the basis of the FIR, the second recorded by the
  ASI as a statement under Section 161 of the Code of
  Criminal Procedure, 1973 and a third recorded by the
E Tahsildar are unanimous, as all the accused were
  mentioned therein. The High Court by way of abundant
  caution, already gave the benefit to three of the assailants
  on the plea, that tt.y, though armed, did not cause any
  injury to the de eased. The motive too was also
F established as t ere appeared to be deep animosity
  between the parties and that the appellant had, in fact,
  appeared as a witness in several cases in which the
  victim 'A' or his son were the accused. There are some
  discrepancies in the dying declarations with regard to the
G presence or otherwise of a light or a torch. However,
  these are insignificant. It is also clear from the evidence
  that the injured had been in great pain and if there were
  minor discrepancies inter-se the three dying declarations,
  they were to be accepted as something normal. The trial
  court was, thus, clearly wrong in rendering a judgment
H
                                                                 ..
      ABRAR v. STATE OF UTTAR PRADESH                  1219


of acquittal solely on the said ground. The dying              A
declarations were recorded by the Tahsildar after the
doctor had certified the victim as fit to make a statement.
The doctor also appeared in the witness box to support
the statement of the Tahsildar. Therefore, no fault
whatsoever, could be found in the dying declarations.          s
[Para 6] [1223-D-H; 1224-A-B]

     1.2 The prompt lodging of the FIR is another
circumstance in favour of the prosecution. The incident
happened at 9.30 p.m. on 03.04.1979 and the FIR was
recorded· at 10.30 p.m. i.e. within an hour of the incident    C
under Section 307 IPC. [Para 7] [1224-C]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1668 of 2005.
                                                               D
    From the Judgment & Order dated 29.07.2005 of the High
Court of Judicature at Allahabad in Government Appeal No.
313 of 1982.

    SWA Qadri, Jubair Ahmad Khan, Saima Bakshi,
Minnatullah, Lakshmi Raman Singh for the Appellant.            E

   S.R. Setia, D.K. Goswami, Ajay Kumar Singh, Shrish
Kumar Misra for the Respondent.

    The Judgment of the Court was delivered by
                                                               F
    HARJIT SINGH BEDI, J.

     This appeal by way of special leave arises out of the
following facts:
                                                               G
     1. At about 9.30 p.m. on the 3rd of April, 1979, Mohd.
Ashfaq, a practicing Advocate, residing in Mohalla Kapoorpur
of Ghazipur town, was returning home after visiting Suhasini
Talkies. As he reached near the house of Saeed Khan, he
found the four accused, Mukhtar, Abrar, Mateen and Usman,
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    1220 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A all armed with country made pistols, standing near the door of
  the house. Mohd. Ashfaq recognized them in the light of the
  torch that he was carrying. Apprehending danger, Mohd. Ashfaq
  ran towards his house which was close by, raising an alarm.
  The accused chased him shouting at each other that he should
B be done away with on which Abrar, the appellant herein, fired
  at him from the rear. The alarm raised by the victim attracted
  Muzur PW-6, Durga Ram PW-7 and one Bissu to the place of
  incident and they too saw the shot being fired. As per the
  prosecution story, the attack on the victim was on account of
c old enmity and litigation between him and the accused Mukhtar
  and Abrar. Mohd. Ashfaq was immediately rushed to the District
  Hospital, Ghazipur where he was attended to by Dr.
  S.N.Pandey PW-8 who was then on emergency duty. He found
  multiple gun shot injuries over the left side of the back in an area
D 12 cm x 14 cm, 9 in number measuring 1 cm x 1 cm, though
  there was no blackening or tattooing. In the meanwhile, Ram
  Singh PW-5, Advocate and Mohd. Ashfaq's junior, reached the
  hospital at 9.45 p.m. on getting information of the incident.
  Mohd. Ashfaq thereafter dictated a report to him and after it
E had been signed by him, it was taken to the Police Station and
  a FIR under Section 307 of the IPC was registered by Head
  Constable Lalta Yadav. A memo was also received in the
  Police Station at 10.35 p.m. from Dr. S.N.Pandey about Mohd.
  Ashfaq's admission on which Sub-Inspector Ram Hit Shukla
F PW-9 reached the hospital at 10.5G p.m. and recorded another
  statement of Mohd. Ashfaq. A third dying declaration was
  recorded the same night by the Tahsildar, Vir Bahudar Prasad
  PW-2, at 11.50 p.m. after taking a certificate from the Doctor
  that the injured was fit to make a statement. Mohd. Ashfaq died
  the next day in the hospital at Varanasi and a case under
G Section 302 of the IPC was thereupon entered against the
  accused. The dead body was also subjected to a post-mortem
  examination and it revealed much the same injuries as detected
  at the time of the medical examination in the District Hospital,
  Ghazipur but on the opening of the body the large and small
H
       ABRAR v. STATE OF UTTAR PRADESH                      1221
             [HARJIT SINGH BEDI, J.]

intestines and the kidneys were found to be lacerated. The           A
doctor opined that the death had occurred due to shock and
haemorrhage resultant to abdominal injuries. The accused
were, accordingly, arrested and ultimately brought to trial for an
offence punishable under Section 302/34 of the IPC.
                                                                     B
     2. The prosecution in support of its case, relied primarily
on the evidence of Dr. A.K. Dwivedi PW-1, who had conducted
the post-mortem examination, Executive Magistrate-cum-
Tahsildar Vir Bahadur Prasad PW-2, Ram Singh, Advocate,
PW-5, Mujur PW-6 and Durga Ram PW-7, the two eye
witnesses named in the FIR, (but who did not support the             C
prosecution}, Dr. S.N.Pandey PW-8, the doctor of the District
Hospital who had certified as to the mental condition of the
victim at the time of the recording of the dying declaration by
the Tahsildar, and the investigating officer Sub-Inspector Ram
Hit Shukla PW-9. The accused were then questioned under              D
Section 313 of the Cr.P .C. They pleaded false implication due
to enmity.

     3. The trial court observed that as the two eye witnesses
had turned hostile, the case rested exclusively on the three dying   E
declarations of the deceased in the form of the FIR, the
statement of the deceased recorded by the investigating officer
under Section 161 of the Cr.P.C. and the statement recorded
by the Tahsildar. The trial court held that as there were several
discrepancies inter-se these three statements, they could not        F
be relied upon and accordingly taking the murder as a blind
one, acquitted the accused. The matter was thereafter taken
in appeal by the State Government to the High Court. The High
Court has, by its judgment, which is now impugned before us,
reversed that of the trial court holding that the so called          G
discrepancies were insignificant that they could occur in any
statement recorded in Court and the discrepancy with regard
to the presence or otherwise of a light which figured in one
statement and did not figure in the other was of little or no
consequence in the facts. The Court then examined the dying
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    1222 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A declarations and observed that in so far as accused Mukhtar,
  Mateen and Usman was concerned, no direct and positive role
  had been assigned to them in the three dying declarations of
  the deceased and it was the single shot attributed to Abrar, the
  present appellant, which had killed the deceased. The Court
B also held that if Mukhtar, Mateen and Usman had also been
  carrying country made pistol, they would in normal
  circumstances, have used them as well. The Court also
  observed that there was no bar in relying only on a part of a
  dying declaration as the only test was the test of reliability. The
c Court observed that the third dying declaration had been
  recorded by the Tahsildar after he had taken a certificate from
  the doctor that Mohd. Ashfaq was fit to make a statement. The
  Court also held that the statement given in the dying
  declarations that the deceased was carrying a torch by which
  he had been able to identify the accused was to be accepted,
0
  as he was an educated man and would ordinarily be expected
  to carry a torch. It was also observed that as the incident had
  happened in Ghazipur, which was a District Headquarters,
  street lights were also available as was clear from the evidence
  as well as the site plan. The High Court, accordingly,
E maintained the acquittal of Mukhtar, Mateen and Usman, but
  allowed the appeal with respect to Abrar, the appellant herein.
  He was, accordingly, sentenced to imprisonment for life under
  Section 302 of the IPC.

F      4. Mr. Quadri, the learned counsel for the appellant has
  raised several arguments before us during the course of
  hearing. He has pointed out that in the background that the two
  eye witnesses had turned hostile and had not supported the
  prosecution, the only evidence against the appellant, were the
G three dying declarations and as these were discrepant in
  material particulars, no reliance could be placed on them as
  well with the result that there was no evidence against the
  appellant. He has also submitted that it would not have been
  possible for the deceased to have recognized the four
H assailants as there was no evidence to show that he was either
       ABRAR v. STATE OF UTTAR PRADESH                      1223
             [HARJIT SINGH BEDI, J.]

carrying a torch or there was any electric light available at the   A
site where he had been shot.

     5. The learned counsel for the State has, however,
supported the judgment of the High Court by pointing out that
the dying declarations were categorical inasmuch that the four
                                                                    8
accused had been named in each one of them and that three
accused who had been acquitted had got the benefit of doubt
only on the ground that no shot had been fired by them. It has
been submitted that there was in any case absolutely no reason
to discard the dying declaration recorded by the Tahsildar at       C
 11.50 p.m. after he had taken a certificate from the doctor that
the victim's fitness to make a statement.

      6. We have heard the learned counsel for the parties very
carefully. It has rightly been pointed out by the learned counsel
for the appellant that the entire prosecution story would depend D
on the dying declarations. It must be borne in mind that all three
dying declarations, the first one which formed the basis of the
FIR, the secon~ recorded by the ASI as a statdment under
Section 161 of the Cr.P.C. and a third recorded by the Tahsildar·
are unanimous as all the accused find mention therein. The High E
Court, has by way of abundant caution, already given the benefit
to three of the assailants on the plea, that they, though armed,
had not caused any injury to the deceased. The motive too has
also been established as there appeared to be deep animosity
between the parties and that the accused Abrar, the appellant F
had, in fact, appeared as a witness in several cases in which
Mohd. Ashfaq or his son were the accused. It is true that there
are some discrepancies in the dying declarations with regard
to the presence or otherwise of a light or a torch. To our mind,
however, these are so insignificant that they call for no G
discussion. It is also clear from the evidence that the injured
had been in great pain and if there were minor discrepancies
inter-se the three dying declarations, they were to be accepted
as something normal. The trial court was thus clearly wrong in
rendering a judgment of acquittal solely on this specious ground.
                                                                    H
         1224 SUPREME COURT REPORTS [2010] 13 (AODL.) S.C.R.


     A   We, particularly, notice that the dying declaration had recorded
         by the Tahsildar after the Doctor had certified the victim as fit
         to make a statement. The doctor also appeared in the witness
         box to support the statement of the Tahsildar. We are, therefore,
         of the opinion, that no fault whatsoever could be found in the
     B   dying declarations.

              7. The prompt lodging of the FIR is another circumstance
         in favour of the prosecution. The incident happened at 9.30 p.m.
         on the 3rd of April, 1979 and the FIR was recorded at 10.30
         p.m. i.e. within an hour of the incident under Section 307 of the
     C   IPC. We, therefore, find no merit in the appeal. It is, accordingly,
         dismissed.

         N.J.                                          Appeal dismissed .




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