Holding

The Supreme Court upheld the convictions under sections 302/34 and 307/34, affirmed the acquittals under sections 147 and 148, and held that the witnesses' statements were admissible under section 157 and that common intention was proved.

Summary

The case concerned the murder of Jadoo and injuries to three others during a waylaying by twelve accused. The trial court convicted eleven of the accused, including Maqsoodan, under sections 302, 307 and related provisions, sentencing Maqsoodan to death. On appeal, the Allahabad High Court reduced Maqsoodan's sentence to life imprisonment, altered convictions to sections 302/34 and 307/34, and acquitted the accused of offences under sections 147 and 148. The Supreme Court examined whether the witnesses' statements, some labelled dying declarations, were admissible, concluding they were admissible under section 157 of the Evidence Act, not section 32. It held that despite variations, the eye‑witness testimony was reliable and that common intention under section 34 IPC was proved, justifying the convictions. The Court affirmed the High Court’s findings, dismissed the appeals, and upheld the acquittals on sections 147 and 148.

Issues considered

Whether the statements of witnesses, labelled dying declarations, are admissible under section 32 of the Evidence Act or section 157.
Whether the variations and improvements in eye‑witness testimony render it infirm.
Whether common intention under section 34 of the IPC can be inferred from the facts.
Whether the convictions under sections 302/34 and 307/34 are sustainable.
Whether the acquittals under sections 147 and 148 are justified.

Legislation cited

Indian Evidence Act, 1872s. 157, s. 32
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 326, s. 34

Subjects

dying declarationsection 32 evidence actsection 157 evidence acteye‑witness testimonycommon intentionsection 34 IPCmurder convictionappeal

Judgment

45 A

MAQSOODAN & OTHERS
v.
STATE OF UTTAR PRADESH [AND VICE-VERSA]
B
December 15, 1982

[D. A. DESAI, BAHARUL ISLAM AND
V. BALAl:RISHNA BRAD!, JJ.]

P•!llll Codt-Commo• int,.tlon-How d•lerml•ed. c
Evid1nc1 .4ct-Dy/ng dtclaration-P1r1on making tht statement not d«Jd
and deposed In Court-Statement If could be called dying declaratlo•-Such
stattmtnl if admis1Jbl1 under section 32-Not quantum of evidence but quality
relevant.

The prosecution case against the 12 accused persons was that, armed D
with deadly weapons, they waylaid and assaulted the deceased and three others
accompanying him, and that someone among another group of 12 of thCir
associates standing at some distance constantly incited the accused wich the
words "kill, kill". The deceased received serious injuries and died on the
followin1 morning.

While the appellant was convicted under s. 302 Indian Penal Code and
E
-)
sentenced to death, ten other accused were convicted and sentenced variously.
One of them was acquitted.

On appeal the High Court reduced the sentence of death passed on the
appellant to imprisonment for life. Convictions of four of tho 11 accused were
altered from under s. 302/149 and s. 307/ 149 to one under ss. 302/34 and 307/34
I.P.C. All or them were however acquitted of the offences under s. 147or1. 148
F
l.P.C. The convictions and sentences against the other six accused were set aside
and they were acquitted.

It was contended on behalf of the appellants that their conviction wa1
unsustainable in law because the evidence of the eye witnesses. who were
interested parties, could not be safely relied upon. G
Dismissing the appeal,

HELD : The High Court erred in stating that the testimony of the four
eye witneases suffered from numerous infirmities, that they made improvements
in theit testimoney and that there were variations in their earlier and later H
statements. On that count alone their testimony could not be held to be infirm.
It is tbe duty of the Court to remove the grain from the chafl'. [49 CD]
46 SUPREME COURT REPORTS (1983) 2 s.c.R.

A The parties were inimical for a long time. The four witnesses were the
injured persons and therefore, their presence at the time and place of occurrence
could not be doubted. The presence of all the four accused in the scene of
occurrence and their participation in· the crime had been proved beyond
reasonable doubt despite the improvements and variations in the evidence of
witnesses. [49 E-F]

8 In a case of this kind it is not the number of witnesses examined or the
quantity of evidence adduced by the prosecution that counts. It is the quaJity
that counts. Eye witnesses, examined in the case were the best and natural
witnesses. The accussed persons were known to the witnesses and they
did not have any reason to omit the real culprits and implicate falsely accused
persons. [49 G-H; 50 CJ
A statement, written or verbal, of relevant facts made by a person who
c is dead, is called a dying declaration and is admissible in evidence under s. 32
of the Evidence Act. But when a person who has made a statement, even if it
be in expectation of death but is not dead, it is not a dying declaration. It is not
.
•
admissible under s. 32 of the Evidence Act. [50 B-PJ

In the instant case the two witnesses whose statements were erroneously
called dying declarations by the High Court were alive and deposed in the
D case. Such statements are admissible under s. 157 of the Evidence Act as
former statements made by them to corroborate their testimony in the Court.
[50 P-GJ

Common intention is a question of fact and is subjective. It can be
inferred from facts and circumtances. ln the in!tant case the appellants who
were related to one anotheriwere armed with deadly weapons when they waylaid
E and attacked the deceased and his companions, someone incited them to "kill",
and after the assault they left the scene of occurrence together and they were
arrested from ihe same place. There was the therefore common intention
and the High Court was justified in convicting them under s. 302/34, IPC.
f52 A-CJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 175
F
of 1974.

Appeal by special leave from the judgment and order dated
the 18th October, 1973 of the Allahabad High Court in Crl.
Appeal Nos. 1307 and 1966 of 1973.
G AND
Criminal Appeal Nos. 367-369 of 1974.

Appeals by special leave from the judgment and order dated
H the 18th October, 1973 of the Allahabad High Court in Criminal
Appeal No. 1307 of 1973 connected with Cr(. Appeal Nos. 1287 and
1566 of 1973.
MAQSOODAN v. U.P. STATE (Baharul Islam, J.) 47

Rajendra Singh, R-.K. Garg B.P. Singh and Ranjit Kumar for A
the Appellant.

O.P. Rana and M. V. Goswami for the Complainant.

Da/vur Bhandari for the Respondent.
B
The Judgment of the Court was deliv~red by

BAHARUL ISLAM, J. These four Criminal Appeals are by
special leave. Crimininal Appeal No. 175 of 1974 is by the four
appellants-Maqsoodan, Madan Mohan, Prayagnath and Nando
who have been convicted under Sections 302/34 and 307/34 Penal
Code.
c
2. The material facts may be briefl.ly stated as follows :

On 8.6.1972 at about 5.45 or 6 00 a.m., when Sulley (P. W. I)
along with his brother, Jadoo (deceased), his son, Rajendra (C. W. !)
and bis nephew Vijay Kumar (P. W. 3) were going from their house D
in Neem Gali, Mathura, to their Dharamshala in Mohalla Bengali
Ghat, via Vishram Ghat and reached the area called Shyam Ghat,
they were waylaid by the twelve persons accused in the case and
were a&Saultcd. According to ':the prosecution, the accused persons
were variously armed with Ballams, pharsas and lathis. Another
group of twelve or thirteen persons who were associates of the 1
E
accused was standing at Vishram Ghat and some one was constantly
inciting the accused persons with the expression, "kill, kill" where-
upon the accused persons attacked and assaulted Jadoo, Vijay
Kumar, Rajendra and Sulley. Jadoo and P.W. 3 were severely
injured. The condition of Jadoo was very precarious. After the
assault, the miscreants left. P.W. 1 arranged for a lorry belonging F
to one Vishnu Chaubey and carried jthe injured persons to the
District Hospital. The driver of the lorry was one Than Singh. Jadoo
and P.W. 3 were removed to the operation theatre. Thereafter,
P.W. 1 proceeded to the Police Station, Kotwali at Mathura and
submitted a written First Information Report (FIR) about the
G
incident. The FIR was written by his nephew, Prakash Chandra
Chaturvedi (P.W. 8). The FIR was lodged at 6.30 a.m. at the
Police Station and bas been proved in this case as Ex. "Ka-16".
After lodging the FIR, P.W. I came back to t~e hospital where the
injuries of all the four injured persons were examined by Dr. B.S. H
· Babbar. As the condition of the injured persons was serious,
intimation was sent to,Shri U.C. Tripathi (D.W. 7), Sub·Divisionlll
48 SUPREME COURT REPORTS [1983] 2 s.c.a.

A Magistrate, Sahabad, for recording their statements. The Magistrate
came and recorded the statements of P.W. 3 and C.W. I at 9.15
a.m. and 9.20 a.m. respectively. Jadon was operated upon and his
condition was such that he could not make any statement. In fact,
he succumbed to the injuries the next day, namely, 9.6.1972 at
3.25 p.m. The post-mortem examination was conducted on the
B dead body of Jadon by Dr. B.S. Babbar on 10.6.1972 at 10.00 a.m.

3. The police after investigation submitted charge-sheet
against the twelve accused persons, all of whom pleaded not guilty.
The First Additional Sessions Judge, Mathura, who tried the case,
c convicted eleven out of the twelve accused persons and acquitted
accused No. 12, Kanhaiya. Appellant Maqsoodan was convicted under
Section 302 I.P.C. and sentenced to death. The other ten accused
persons were convicted under Sections 302/ 149 and 307/149 l.P,C. and
sentenced to imprisonment for life, each under Section 302/149 Penal
Code. Accused Parmatma was convicted under Section 147 I.P.C.
D and the rest were convicted under Section 148 I.P.C. They were
sentenced to various terms of imprisonment. The sentences of
imprisonment were directed to run concurrently. There was also a
reference for the confirmation of the death sentence imposed on
Maqsoodan.

4. The convicts filed several appeals before the High Court
of Allahabad. The High Court altered the convictions of
Maqsoodan, Madan Mohan, Prayagnath and Nando, from under
Sections 302/149 and 307/149 to ones under Sections 302/34 and
307/34 t'enal Code. The sentence of death imposed on Maqsoodan
was reduced to imprisonment for life. All of them were acquitted
of the offences under Section 147 or Section 148 I.P.C. The
F
convictions and sentences as against the other six accused persons
were set aside and they were acquitted. The acquittal of Kanahaiya •
was affirmed. Criminal Appeals No. 367, 368 and 369 of 1974
have been filed by the State against the acquittal of the eleven
accused persons of the offences under Sections 147 and 148, Penal
G Code; S.L.P. No. 766 of 1974 is by the State against the acquittal
of Kanahaiya.

5. All these appeals will be disposed of by this .common
judgment.
H
6. Shri Rajendra Singh, learned counsel appearing for the
appellants in Criminal Appeal No. 175 of f974, first snbmits that
MAQSOODAN •• U.P. STATE (Baharul Islam, J,) 49

the conviction of the four appellants is unsustainable in law ; A
he submits that the evidence of the four witnesses, namely, P.W. I,
Sulley, C.W. I, Rajendra, P.W. 3, Vijay Kumar and P.W. 2,
Jagdish, cannot form the basis of the conviction as only one
witness, namely, P.W. 2, Jagdish, out of five witnesses named in the
FIR has been examined ; the eye-witnesses examined are inter~sted
and their evidence cannot be safely relied on.

The High Court bas found that the testimony of the eye
•
witnesses, namely, P.Ws I, 2, 3 and C.W. I "suffer from numerous
infirmities". It, therefore, sought support to their testimony from
the two earlier statements erroneously called dying declarati~ns,
Exhibits Ka 22 and Ka 23 made by P.W. 3 Vijai Kumar and P.W. 2
Jagdish respectively. The infirmities referred to by the High Court
consisted in, according to the High Court, improvements made by
the witnesses and variations in their earlier and latter statements. In

- our opinion, on that ground alone, the testimony of P. Ws: 1, 2, 3
and C. W. I cannot be held to be infirm. It is the duty of the court
to remove the grain from the chaff. These four witnesses are the 'l
injured witnesses having received the injuries during the course of
the incident, Their presence at the time and place of the occurrence
cannot be doubted; in' fact it bas not been challenged by the
defence. As both the parties were inimical for a long time, it will
be prudent to. convict only those persons whose presence and parti· Ii:
cipation in the occurrence have been proved by the prosecution
beyond reasonable doubt. We agree with the finding of the High
Court that the presence and participation of appellants Maqsoodan,
.Madan Mohan, Prayagoath and Nan do, who are appellants in
-~.
Criminal Appeal No. 175 of 1974 has been· proved beyond
reasonable doubt, despite the improvements and variations in their .F
evidence.

Sbri Rajender Singh has submitted that it is not safe to rely
on the testimony of P.Ws. I, 2, 3 and C.W. las the prosecution
bas not examined all the witnesses named in the FIR except Jagdish,
nor has the prosecution examined any of the neighbours. It is not
the number of witnesses examined nor the quantity of evidence
adduced by the prosecution that counts. It is the quality that
counts. Learned counsel bas not pointed out to us that any witness
better or more creditable has been omitted by the prosecution.
As stated above, the eye witnesses examined in this case were the
best and natural witnesses. Learned counsel also bas criticiz:d that
durini the course of evidence, prose~utjon alle!Je4 lbat Maqsoo<!~l\
50 SUPREME COURT REPORTS [1983] 2 8.C.I\.

A gave two blows but that fact ·was not mentioned in the FIR. He
has also criticised that the injured witnesses do not say who injured
whom. This, on the contrary, shows that the witnesses examined
were riot tutored and they gave no parrot like stereotyped evidence.
It may be remembered .that P.W. I who lodged the FIR received as
many as seven incised wounds, one of them being on the left chest;
B he took Jadon, who had received serious injuries and who later on
succumbed to them, and C.W. I, who received five incised injuries
and P.W. 3, who was also seriously injured, to the hospital. He
lodged the FIR ·thereafter. The condition of his mind and disposi-
tion can easily be imagined. There were bound to be some errors in
the FIR. It may also be remembered that the FIR was lodged with·
c in half an hour of the occurrence. There was little time Jost. The
occurrence took place at about 6.00 a.m. on 8.6.1972. It is nobody's
case that the witnesses were unable 10 recognise the real culprits. The
accused persons were well-known to the witnesses from before. They
did not have any reason to omit the rea,l culprits and implicate
falsely the accused persons. The evidence of P.Ws. I, 2, 3 and C.W.l
D could have been accepted even without corroboration. Even so, the
High Court rightly pressed into service the earlier statements of·
P.W. 3 and C.W.l (Ex. Ka-22 and Ka-23) re.spectively.

7, Exts. Ka-22 and Ka-23 have been wrongly called dying
declarations. The statement written or verbal, of relevant facts made
E by a person who is dead, is ca lied a dying declaration; it is relevant
under Section 32 of the Evidence Act, when the statement is made
by the per.son as to the cause of his death, or as to any of the circum-
stances of the transaction which resulted in bis death, in case, in .
. which that person's death comes into question.
F .
When a person who has made a statement, may be in expecta-
tion of death, is not dead, it is not a dying declaration and is not
admissible under Section 32 of the Evidence Act. In the instant
case, the makers of the statements Ex. Ka-22 and Ka-23, are not
only alive but they deposed in the case. Their statements, therefore,
G are not admissible under Section 32; but their statements however
are admissible under Section 157 of the Evidence Act as former state-
ments made by them in .order to corroborate their testimony in the
Court. In the instant case, Ex. Ka-22 and Ka-23 respectively corro-
borate the testimony in Court of P. W. 3 and C. W. I respectively.
H
· 8. The High Court bas found that the witnesses later on
improved th~ story and roped in some other persons. As a rule of
MAQSOODAN v. U.P. STATE (Bakaru/ Js/am, /,) ~l

caution, the High Court has found that the participation of the four A.
appellants in the offence has been proved beyond reasonable doubt
and the presence and participation of the other eight accused· persons
named by them have not been proved beyond doubt. We d" not find
valid) reason to interfere with this finding of fact of the High Court,
in these appeals under Article 136 of the Constitution.
B
9. As the number of accused persons present and participa-
ting in the occurrence have not been proved to be five or more,
the High Conrt has rightly held that the common object necessary
for constituting an unlawful assembly has not been proved, and
therefore in the facts and circumstances of the case, the High Court
G
-. correctly held that common intention has not been proved and as
such the four appellants were rightly acquitted of the offence under
section 302 read with section 149 I.P.C., and also rightly acquitted
all the other accused persons of the offences under Sections 147 and
148 I.P.C.
D
JO. Shri Rajinder Singh next submits that if any offence at all
bas been committed· by the appellants of Criminal Appeal No. 175
of 1974, the offences may be under Section 326 I.P.C. depending on
the medical evidence and circumstances of the case and that Section •
34 I.P.C. cannot apply as no common intention has been proved.
We cannot accept this submission. Dr. B.S. Babbar, P. W. 3, who E
held the post-mortem examination on the dead body of Jadoo
found a number of wounds out of which the following were serious :

I. Incised wound 2' x l /4' x scalp deep on bead.

2.
3.
Incised wound 3' x 1/4' x scalp deep on the head
Stiched wound with draining tube 3' towards upper
'
portion of the stomach on right side.

4. Stiched wound LI /2' on the upper portion of the left side
of the stomach. G
In his opinion, death was due to cyncope following shock and
Haemorrhage as a result of the injuries. According to liim, injuries
. -(
- ;.-
No. I & 2 separately was sufficient to cause death in the ordinary
course of nature. It, therefore, c.annot be argued that the offence H
committed was not murder.
52 SUPREMll c<>ukt i<.El>ORTS [1983] 2 s.c.it.

A Common intention is a question of fact. It is subjective.
But it can be inferred from facts and circumstances. In this case,
the appellants were related. All of them were armed with deadly
weapons. They were together. There was an order by some one,
"kill, kill", when all of them simultaneously attacked the deceased
and P.Ws. I, 2, 3, and C.W. I. After the occurrence, they left
B together; they were later arrested from the same place. The High
Court therefore rightly held that the appellants caused the injuries
with the common intention, and was justified in convicting !the
appellants under Section 302/34 of the Penal Code. We, therefore,
affirm the conviction and sentences inflicted by the High Court ·on
Maqsoodan, Madan Mohan, Prayagnath and Nando, appellants in
c Criminal Appeal No. 175 of 1974 and dismiss the appeal.

11. As held above that the High Court rightly held that the
prosecution failed to prove the common object and therefore it
rightly acquitted all the accused persons of the offences under
Sections 147 and 148.
D
12. In the result, the State appeals are also dismissed .

•
P. B. R. Appeal dismissed.