MUNNAWAR AND ORS.versusSTATE OF U.P. ETC.

                        [2010] 5 S.C.R. 1202


A                      MUNNAWAR AND ORS.
                                  v.
                         STATE OF U.P. ETC.
              (Criminal Appeal Nos. 1680-1682 of 2007)

                            MAY 5, 2010
8
          [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

       Penal Code, 1860: ss. 3021149 - Fire shot at victim -
  Death of victim after 5 days - Dying declaration recorded by
C magistrate duly endorsed by doctor- Trial court convicted the
  accused u/s.307 but acquitted them u/s.302 on the ground
  that it was negligence on the part of doctor which led to
  septicemia and finally the death of victim - However, High
  Court convicted accused u/s. 3021149 - On appeal, held:
o Injuries on the person of victim were grievous and sufficient
  to cause death as they were on sensitive parts of the body -
  Promptness in recording of FIR would belie the doubt as to
  the presence of eyewitness-informant at the place of incident
  - There were no suspicious circumstances with regard to the
E dying declaration and no reasons spelt out as to why the two
  officers (magistrate and doctor) would falsely implicate·
  accused - Order of conviction not interfered with.

           Prosecution case was that the deceased, alongwith
      PW-1 and PW-2 was on way to court to attend a case.
F     Appellants anned with a pistol fired a shot at the deceased
      and thereafter ran away from the spot: The incident took
      place at 11.15 A.M. The deceased was seriously injured
      and was taken to hospital and examined by the Doctor .
      PW-4 at 11.35 A.M. FIR was lodged at 12 noon. PW-11, the
(;.   police officer recorded statement of the deceased. Next
      day, statement of the deceased was recorded by
      Magistrate. After 5 days of the incident, deceased
      succumbed to injuries. Case was converted from one
      under Section 307 IPC to Section 302 IPC. Trial Court
H                               1202
   MUNNAWAR AND ORS. v. STATE OF U.P. ETC.            1203


acquitted the appellants of offence under Section 302 IPC      A
but convicted them under Section 307 IPC. Appellants
filed appeals against conviction and the State filed appeal
against acquittal of appellant of offence under Section
302. High Court convicted appellants for offence under
Section 302/149 IPC. Hence the appeals.                        B

    Dismissing the appeals, the Court

     HELD: 1. The dying declaration recorded by the
Executive Magistrate gave full details as to the identity of   C
the assailants, the weapons used, the site of the injury
and the fact that he was brought to the hospital by a
neighbour and his elder brother who were accompanying
him at the time of incident. The doctor, (PW 6) who was
looking after the deceased when the dying declaration
                                                               0
was recorded gave a certificate that he was fully
conscious and lucid at the time of its recording. The
Magistrate also deposed that the deceased was fully
conscious when the dying declaration was recorded by
him. The submission that the injuries on the person of the     E
deceased were so serious that the evidence of the
Executive Magistrate endorsed by the Doctor with regard
to the fitness of the deceased was a matter of suspicion,
was without basis. There were no suspicious
circumstances whatsoever with. regard to the dying
declaration recorded by the Magistrate and endorsed by
                                                               F
the doctor and no substantial reas.ons were spelt out as
to why these officers would favour the prosecution. The
fact that the deceased died several days later, of
septicemia brought about by the gunshot injury clearly         G
showed that his condition was not overly critical or
precarious when the dying declaration was recorded.
[Paras 4, 5] [1209-A-E; 1210-E-F]

    Balak Ram v. State of U. P. 1975(3) SCC 219; K.
                                                               H
    1204   SUPREME COURT REPORTS                  [2010) 5 S.C.R.


A Ramachandra Reddy & Anr. v. The Public Prosecutor
    1976(3) sec 618, referred to.

       2. Prima facie, some delay had occurred for the
  delivery of the special report., but that by itself would not
8 be of any consequence more particularly as the incident,
  as at that time, had not led to the death of the victim and
  case under Section 307 of the IPC was registered. The
  evidence of Doctor (PW-4) was that the injured was
  admitted to the hospital by his son, PW-1. The
c promptness of the FIR is a clear reflection of the fact that
  the two eye witnesses were present at the time of
  incident. It is also the admitted position that the deceased
  and party were on their way to attend a court hearing
  when they were attacked. Those who are involved in
0 serious criminal litigation seldom go alone to attend court
  hearings, and are invariably accompanied by other
  persons as per the dictates of tradition and prudence in
  rural North India. Therefore, the presence of the two eye
  witnesses is accepted. [Paras 6, 7] [1211-B-D; 1212-A-D]
E        3. The injuries seemed to have been caused from a
   very close range as tattooing was pre!ient. The doctor
   also pointed that some of the injuries were grievous and
   were fatal to life and all the injuries were sufficient to
  ·cause death as they were on sensitive parts of the body
F and tha~ the injured was under severe shock, and had
   been given three units of blood at the time of his
   admission to hospital. In the light of such evidence, the
   trial court erred in concluding that it was the negligence
   on the part of the doctor which had led to septicemia and
G finally the death of the patient. [Para 9] [1214-A-C]
                        Case Law Reference:
        1975(3) sec 219             referred to          Para 2
H       1976(3) sec 618             referred to          Para 2
  MUNNAWAR AND ORS. v. STATE OF U.P. ETC.                1205


    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal              A
No.(s). 1680-1682 of 2007.

    From the Judgment & Order dated 08.08.2007 of the High
Court of Judicature at Allahabad in Government Appeal No.
4195 of 2002 & Criminal Revision No. 953 of 2002 & Criminal       B
Appeal No. 2154 of 2002.

    Sushil Kumar, Manoj Prasad, Aditya Kumar for the
Appellants.

   T.N. Singh, Rajiv Dubey, Kamlendra Mishra for the              c
Respondent.

    The Judgment of fhe Court was delivered by

    HARJIT SINGH BEDI, J. The facts leading to the filing of
these appeals are as under:                                       D

     1. On the 20th May 2000, Fateh Mohammad deceased,
Mohammad Shamoon PW-1 and his elder brother Wali
Mohammad PW-2 were on their way to Court for appearing in
a case. They got down from the bus at about 11.15 a.m. at         E
Mawana Bus Stand, Meerut and moved on towards the Courts
and as they reached near the office of the Bus Union, Yaqoob
and Manabbar and Qasim sons of Khuda Bux, Qasim son of
Sanabbar and Zuber son of Manabbar, all residents of village
Bisola, Police Station Evoli, armed with country made pistols,
                                                                  F
started firing at Fateh Mohammad. Mohammad Shamoon and
Wali Mohammad ran towards the Sardhana Bus Stand to save
their lives and in the meanwhile the assailants ran away from
the spot. Fateh Mohammad, seriously injured, was admitted to
Jaswant Rai Speciality Hospital, Saket, Meerut by Mohammad
Shamoon and was examined by Or. Anil Kapoor PW.4 at 11.35         G
a.m. Mohammad Shamoon thereafter lodged a report at about
12 noon at Police Station, Civil Lines, Meerut at a distance of
two furlongs from the place of incident. Sub-Inspector Dhani
Ram Arya PW.11 also visited the hospital and recorded the
                                                                  H
    1206     SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A  statement of the injured and the other witnesses including Wali
   Mohammad. He also moved an application for recording the
   dying declaration of Fateh Mohammad which was duly
   recorded on the 21st May 2000 at 8.15 p.m. by Shri Rajdev
   Singh, Additional City Magistrate, Meerut in the presence of Dr.
t3 Narender Trivedi PW.6. The Sub Inspector also visited the
   place of incident and made the necessary enquiries. Fateh
   Mohammad succumbed to his injuries on the 25th May 2000
   and on receiving this information Sub-Inspector Subhash
   Chaudhary PW.5 reached the hospital, drew up the inquest
c  proceedings and sent the dead body for its post-mortem
   examination. The case was also converted from one under
   Section 307 to 302 of the IPC. On the completion of the
   investigation, a charge-sheet was filed with respect to
   Manabbar, Qasim and Zuber as Yaqoob had, in the meanwhile,
D absconded. The prosecution placed primary reliance on the
   evidence of the two eye witnesses, Mohammad Shamoon PW
   1 and Wali Mohammad PW 2. Dr. Anil Kapoor PW 4, who had
   examined Fateh Mohammad on 25th May 2000 at 11 :30 a.m.,
   Dr. N. Trivedi PW-6, who had certified Fateh Mohammad as
   being fit at the time of the reading of the dying declaration, Shri
E Rajdev Singh PW-10 aforementioned, Dhani Ram P<rya PW 11
   the police officer who had recorded the first dying declaration
   of Fateh Mohammad as a statement under Section 161 of thE?
   Cr.P.C. 'in the case diary, Dr. N.K. Gupta PW 3, who had
   conducted the autopsy on the dead body and had opined that
F death had been caused due to Septicemia and shock as a
   result of ante-mortem injuries and Sub-Inspector J.S.Pundhir
   PW 9, who had investigated the case under Section 302 of the
   IPC and had recovered two country made pistols at the instance
   of Qasim and Zuber accused. The accused in their statements
G under Section 313 of the Cr. P. C. denied all allegations and
   pleaded false implication. They also .,:iroduced some witnesses
   in defence and in particular DW1 V. Roy a Ballistic expert, who
   deposed that if a bullet was left embedded in the body it could
   result in Septicemia. The trial court relying on the aforesaid
H
   MUNNAWAR AND ORS. v. STATE OF U.P. ETC.                  1207
          [HARJIT SINGH BEDI, J.]

evidence convicted the accused for an offence under Section          A
307 of the IPC and sentenced them to rigorous imprisonment
for 4 years and fine of Rs.5,000/- eac~ but acquitted them of
the offence under Section 302 of the IPC. Two appeals were
filed in the High Court, one by the accused-appellants and the
other by the State Government challenging the acquittal of the       B
accused for the offence under Section 302 of the IPC. The High
Court by the impugned judgment dated 8th August 2007
dismissed the appeal filed by the accused but allowed the State
appeal and convicted the accused-appellants for the offence
punishable under Section 302/149 of the IPC and sentenced            c
them to undergo imprisonment for life. It is in this background
that the matter is before us at the instance of the accused.

      2. Mr. Sushil Kumar, the learned senior counsel for the
appellants has raised four arguments .in the course of the
hearing. It has first been submitted that the first dying            D
declaration recorded by PW Dhani Ram Arya of Police Station,
Civil Lines, Meerut in the Jaswant Rai Specialty Hospital did
not bear the signature of the deceased or the endorsement of
a Doctor as to the fitness of the injured and no credence could
thus be attached to it. It has also been submitted that the          E
second dying declaration recorded in the hospital by Shri
Rajdev Singh, Additional City Magistrate, Meerut on the 21st
May 2000 had not been properly endorsed by the Magistrate
and did not satisfy the tests or instructions laid down relating
to the recording of dying declaration and as the endorsement         F
of the Doctor did not reveal the medical condition of the injured,
this too was unreliable and could not be relied upon. For these
assertions, the learned counsel has placed reliance on Balak
Ram vs. State of UP. 1975(3) SCC 219 and K. Ramachandra
Reddy & Anr vs. The Public Prosecutor 1976(3) SCC 618. It            G
has, in addition, been submitted that as per the evidence on
record the victim Fateh Mohammad had been admitted in the
hospital not by Mohammad Shamoon PW 1 but by J.S. Pundhir
PW 9 a Police Officer as per the statement of Sub-Inspector
Subhash Chaudhary PW 5 and this by itself made it apparent           H
    1208    SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A   that the two eye witnesses had not been present at the spot
    and had been called long after the incident. It has finally been
    submittep that from the medical and the other evidence it was
    clear that the appellants were, if at all, guilty for the offence
    under Section 307 of the IPC, as held by the trial court and not
s   under Section 302 of th"e IPC, as held by the High Court, and
    for this additional reason the appeal was liable to succeed.

        3. The learned State counsel has, however, controverted
  the stand taken by Mr. Sushi! Kumar. It has been submitted that
  even assuming that there was some flaw in the recording of the
C first dying declaration by D.R. Arya, no serious objection could
  be raised with regard to the second dying declaration recorded
  by the Executive Magistrate. It has, further been submitted that
  the very promptness in the recording the FIR belied the
  argument that the eye witness had been broughtto the scene
D long after the event. It has also been argued that th~ evidence
  of Dr. N.K. Gupta PW3 would indicate that the injuries suffered
  by Fateh Mohammad were the immediate and proximate
  cause of death and merely because there was a time lag
  between the injury and death would not make any difference in
E so far as culpability of the appellants for the murder was
  concerned.

        4. We have considered the arguments advanced by the
  learned counsel for the parties very carefully. It is true, as
F contended by Mr. Sushi! Kumar, that PW Dhani Ram Arya the
  Police Officer had recorded the statement of Fateh Mohammad
  in the case diary as being one under Section 161 of the Cr.P.C.
  It is also true that this statement had not been recorded in the
  marner provided by the Police Regulations with regard to the
G recording of dying declarations by Police Officers. Left at this
  stage perhaps, the judgment of the Supreme Court in Balak
  Ram's case (supra) would apply and the accused would be
  entitled to submit that this dying declaration could not be relied
  upon, but we notice that a second dying declaration had also
  been recorded by the Executive Magistrate PW Rajdev Singh
H
  MUNNAWAR AND ORS. v.' STATE OF U.P. ETC.                  1209
         [HARJIT SINGH BEDI, J.]

and that this statement was in substance identical with the A
statement recorded by Dhani Ram. The second dying
declaration recorded at 8.15 p.m. in the Jaswant Rai Specialty
HOspital gives full details as to the identity of the assailants, the
weapons they were using, the site of the injury and the fact that.
he had b~n brought to hospital by a neighbour and his elder B
brother who were accompanying him at the time of incident. We
also find that Dr. N.K. Trivedi PW 6 who was looking after Fateh
Mohammad when the dying declaration was recorded gave a ·
certificate that he had been fully conscious and lucid at the time
of its recording. PW Raj Dev Singh also deposed that Fateh c
Mohammad was fully conscious when the dying declaration had
been recorded by him. It has been submitted by Mr. Sushi!
Kumar that the injuries on the person of the deceased were so
serious that the evidence of the Executive Magistrate endorsed
by the Doctor witn regard to the fitness of Fateh Mohammad,
                                                                      D
was a matter of suspicion. We see no basis for this submission
for the simple reason that Fateh Mohammad had died long
after he had sustained the injuries and we have no reason to
disbelieve the statement of the Executive Magistrate or the
attending Doctor. In Balak Ram's case this Court dealt with two
dying declarations, one recorded by the investigating officer in E
the case diary which was held to be unreliable and the other
by the Executive Magistrate which was held to be reliable
notwithstanding the fact that the injured, when taken to the
hospital, was in a very critical condition. This Court observed
that though there may be some suspicion with regard to the F
statement recorded by the Police Officer, the same could not
be said of the second dying declaration. It was observed thus.:

           "The circumstances surrounding the dying
    declaration, though uninspiring, are not strong enough to        G
    justify the view that officers as high in the hierarchy as the
    Sub-Divisional Magistrate, the Civil Surgeon and the
    District Magistrate hatched a conspiracy to bring a false
    document into existence. The Civil Services have no
    platform to controvert allegations, howsoever grave and
                                                                     H
    1210     SUPREME COURT REPORTS                   (2010] 5 S.C.R.


A        unfounded. It is, therefore, necessary that charges
         calculated to impair their career and character ought not
         to be accepted except on the clearest proof. We are not
         prepared to hold that the dying declaration is a fabrication."

          5. The aforequoted paragraph fully supports the view that
8
    (save for very good reasons) a dying declaration recorded by
    a Magistrate duly endorsed by a Doctor should not be
    discarded. In K. Ramachandra Reddy's case (supra), this
    Court again, en an appreciation of the circumstances leading
C to the recording of the dying declaration, held that it could not
    be relied upon. It is, therefore, obvious that the fact as to
    whether a dying declaration is reliable or not would depend
    upon the facts of the case and the evidence produced by the
    prosecution and no hard and fast rule by way of precedent can
    ever be adopted. As already observed by us, there are no
D suspicious circumstances whatsoever with regard to the dying
    declaration recorded by Rajdev Singh and endorsed by Dr .
 .. Trivedi and no substantial reason has been spelt out by :Mr.
    Sushi! Kumar as to why these officers would be a party in favour
    of the prosecution. It is also.extremely relevant that in both the
E cited cases, the primary argument was based on the physical
    condition of the maker of the dying declaration i.e. deceased.
    In the present case, however, the fact that the deceased had
    remained alive for a long period of time after the incident and
    died several days later of septicemia brought about by the
F gunshot injury clearly shows that his condition was not overly
    critical or precarious when the dying declaration had been
    recorded.

        6. Mr. Sushil Kumar has also argued that the two ~ye
G witnesses were not present and the story that they had admitted
  the injured Fateh Mohammad to hospital was incorrect, more
  particularly as per the evidence of Sub-Inspector S· bhash
  Chaudhary PW5, Fateh Mohammad had been admitted by J.S.
  Pundhir PW to the hospital. It has, accordingly, been submitted
  that the duo had been brought to the place of incident after the
H
   MUNNAWAR AND ORS. v. STATE OF U.P. ETC.                 1211
          [HARJIT SINGH BEDI, J.]

incident had tctken place and had been put up as eye                A
witnesses. It has been submitted that though it appeared that
the incident had happened at 11.15 a.m. on the 20th May 2000
and the FIR had been recorded 45 minutes later but the facts
indicated that it had been recorded much later and ante-time
so as to make it possible for the eye witnesses to be brought       B
to the spot and this plea was strengthened by the admitted
position and that the special report had been delivered to the
Magistrate on the 23rd May 2000 and no explanation had been
tendered as to why the delay had occurred. Prima facie, it
appears that some delay had occurred for the delivery of the        c
special report, but that by itself can be no consequence more
particularly as the incident, as at that time, had not led to the
death of the victim and case under Section 307 of the IPC had
been registered. We see from the evidence of PW Dr. Anil
Kapoor, that Fateh Mohammad had been admitted to the                D
Jaswant Rai Special'ity Hospital at 11.35 a.m. on 20th May
2000 by PW Shamoon his son and that the injured was irritable
but was mentally conscious at the relevant time. When cross-
examined as to whether J.S. Pundhir had admitted the injured
to the hospital on the basis of the Memo 13-A/T8, the Doctor
explained that he was the Doctor In Charge and the Bed Head         E
Ticket had been recorded by hirn on the admission sheet. It is,
therefore, obvious that the prosecution story that Mohammad
Shamoon had admitted Fateh Mohammad to the hospital finds
full support of an independent witness, i.e. Dr. Anil Kapoor. Mr.
Sushil Kumar has, however, referred us to the cross-                F
examination of Sub-Inspector Sobhash Chaudhary PW who had
entered into the investigation after the death Fateh Mohammad
that as per the memo receipt after the death of Fateh
 Mohammad, it was Sub-Inspector J.S.Pundhir who had
 admitted Fateh Mohammad to the hospital. We are of the             G
 opinion that this memo cannot be relied upon in the face of the
 statement made by Dr. Anil Kapoor and by J.S. Pundhir PW
 himself very emphatically testified that he had not admitted
 Fateh Mohammad to the hospital. Any doubt as to the
suspicion with regard to the promptness of the FIR or the ante-     H
    1212    SUPREME COURT REPORTS                    f20101 5 S.C.R.


A   timing of the FIR on account of the delivery of the special report
    under Section 157 of the Cr.P .C. is, therefore, clearly dispelled.

         7. We, therefore, find that the promptness of the FIR is a
    clear reflection of the fact that the two eye witnesses had been
    present at the time of incident. It must also be borne in mind
8
    that as per the evidence, Fateh Mohammad and family were
    involved in several criminal and civil litigatic>ns with otht;!r
    persons. It is also the admitted position that Fateh Mohammad
    and party were on their way to attend a court hearing when they
    had been attacked. We must also observe that those who are
C   involved in serious criminal litigation seldom go alone to attend
    court hearings, and, are irivariably accompanied by other
    persons as per the dictates of tradition and prudence in rural
    North India. We must, therefore, accept the presence of the two
    eye witnesses PW's Shamoon and Wali Mohammad.
D
          8. Mr. Sushil Kumar has also pointed out that the Sessions
    Judge had, in his judgment, acquitted the accused-appellants
    for the offence punishable under Section 302 of the IPC but had
    convicted them under Section 307 of the IPC and that in any
E   case this was the proper order to be made in the peculiar facts
    of the case. It has been submitted that the injuries had been
    suffered by Fateh Moh;:i'llmad on the 20th May 2000 but he had
    died on the 25th May 2000 and that as per the statement of
    PW Dr. N.K. Gupta, who had conducted the post-mortem of the
F   dead body, the death was due to septicemia on account of the
    infection caused by the injuries and that had Fateh Mohammad
    been given proper treatment, he may have survived. 'It has been
    pleaded that from the evidence of PW Dr. Anil Kapoor, who
    had initially treated the injured at the Jaswant Rai Specialty
G   Hospital, it was apparent that the infection had set in on account
    of the lack of proper treatment and that in the light of this
    medical opinion the appellants were entitled to claim the benefit
    of doubt and plead that, if at all, a case under Section .307 of
    the IPC was spelt out. We are of the opinion, however, that the
    trial court has ignored some basic issues. We have gone
H
  MUNNAWAR AND ORS. v. STATE OF U.P. ETC.                  1213
         [HARJIT SINGH BEDI, J.]

through the statement of the Dr. Ar)il K~poor who had noticed • A
the following injuries on the person of the Fateh Mohammad at
the time of his admission io hospital:

     1.    Lacerated wound size of wound 2.9. x 1.0 ems fr,e$h
           ofeecfi-ng present. Depth not probed, with invdrted
                                                                    B
           margins present at right side of chest 08.0 ems
           from right nipple at 2.00 o'clock position. Tattooing
           present in an area of 17.0 x 4.5 ems area.

     2.    Tattooing without any wound present over right side
           of neck obliquely vertical in an area of 9.0 cm~ x       C
           3.0 ems upper end starting at the level of mastoid
           process, 04.0 ems posterior to mastoid process.

     3.    Lacerated wound with inverted margins present
           over left side of face 5.0 x 2.0 ems x depth not         D
           probed. 2.0 ems below left eye. Tattooing present
           around the wound in an area of 6.0 x 5.0 ems.
           Fresh bleeding present.

     4.    Lacerated wound with inverted margins present
           over back of left hand 13.0 ems below left oleranon.     E
           process size 3.0 ems x 1.0 cm x depth not probed,
           freshbleeding present. Tattooing present in an area
           of 4.0 x 3.0 ems around wound.

      5.   Lacerated wound with everted margins present over        F
           antero-lateral size of left forearm size 1.0 x 1.0 ems
           x depth not probed fresh bleeding present.

     6.    Lacerated wound with everted margins 4 x 2 ems
           x depth not probed present over right scapular
           rg.7.0 ems from post. Axillary line fresh bleeding       G
           present.

     7.    Lacerated wound with everted margins 1.0 x 1.C
           ems x depth not probed present over left scapular
           rg.6.0 from mid line, fresh bleeding present.            H
                                                               ... ------~,.--




    1214      SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A         9. We see from the injuries that they had been caused from
    a very close range as tattooing was present. Dr. Anil Kapoor
    also pointed that injury Nos.1, 3, 6 and 7 were grie\¢'us and
    were fatal to life and all the injuries were sufficientto cause
    death as they were on sensitive parts of the body and that the
B   injured was under severe shock, and had been given three units
    of blood at the time of his admission to hospital. In the light of
    this ,evidence, we are unable to comprehend as to how the trial
    court could have concluded that it was the negligence on the
    part of Dr. Anil Kapoor which had led to septicemia and finally
c   to the death of the patient.

           We, therefore find;,;rio merit in these appeals. Dismissed.

    D.G.                                         Appeals dismissed.




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