Maqsoodan & Ors Vs. State of Uttar
Pradesh  INSC 97 (15 December 1982)
ISLAM, BAHARUL (J) ISLAM, BAHARUL (J) DESAI,
ERADI, V. BALAKRISHNA (J)
CITATION: 1983 AIR 126 1983 SCR (2) 45 1983
SCC (1) 218 1982 SCALE (2)1351
Penal Code-Common intention-How determined.
Evidence Act-Dying declaration-Person making
the statement not dead and deposed in Court-Statement if could be called dying
declaration-Such statement if admissible under section 32-Not quantum of
evidence but quality relevant.
The prosecution case against the 12 accused
persons was that, armed with deadly weapons, they waylaid and assaulted the
deceased and three others accompanying him, and that someone among another
group of 12 of their associates standing at some distance constantly incited
the accused with the words "kill, kill". The deceased received
serious injuries and died on the following morning.
While the appellant was convicted under s.
302 Indian Penal Code and 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 the 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 of them were however acquitted of the offences under s. 147 or s.
148 I.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 was unsustainable in law because the evidence of the eye
witnesses, who were interested parties, could not be safely relied upon.
Dismissing the appeal,
HELD: The High Court erred in stating that
the testimony of the four eye witnesses suffered from numerous infirmities,
that they made improvements in their testimony and that there were variations
in their earlier and later statements. On that count alone their testimony
could not be held to be infirm. It is the duty of the Court to remove the grain
from the chaff. [49 C-D] 46 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] 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 quality that counts.
Eye witnesses, examined in the case were the
best and natural witnesses. The accused 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 C] A statement, written or verbal, of relevant
facts made by a person who 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 E-F] In the instant case the two
witnesses whose statements were erroneously called dying declarations by the
High Court were alive and deposed in the 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 F-G] Common intention is a question of
fact and is subjective. It can be inferred from facts and circumstances.
In the instant case the appellants who were
related to one another were armed with deadly weapons when they waylaid 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 the same place. There was the therefore
common intention and the High Court was justified in convicting them under s.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 175 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.
AND Criminal Appeal Nos. 367-369 of 1974.
Appeals by special leave from the judgment
and order dated the 18th October, 1973 of the Allahabad High Court in Criminal
Appeal No. 1307 of 1973 connected with Crl. Appeal Nos. 1287 and 1566 of 1973.
47 Rajendra Singh, R.K. Garg B.P. Singh and
Ranjit Kumar for the Appellant.
O.P. Rana and M.V. Goswami for the
Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by
BAHARUL ISLAM, J. These four Criminal Appeals are by special leave. Criminal 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.
2. The material facts may be briefly stated
On 8 6.1972 at about 5.45 or 600 a.m, when
Sulley (P.W. 1) along with his brother, Jadon (deceased), his son, Rajendra
(C.W. 1) and his nephew Vijay Kumar (P.W. 3) were going from their house 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 assaulted.
According to the prosecution, the accused
persons were variously armed with Ballams, phrases and lathis. Another group of
twelve or thirteen persons who were associates of the accused was standing at
Vishram Ghat and someone was constantly inciting the accused persons with the
expression, "kill, kill" whereupon the accused persons attacked and
assaulted Jadon, Vijay Kumar, Rajendra and Sulley. Jadon and P.W. 3 were
severely injured. The condition of Jadon was very precarious. After the
assault, the miscreants left.
P.W. 1 arranged for a lorry belonging to one
Vishnu Chaubey and carried the injured persons to the District Hospital.
The driver of the lorry was one Than Singh.
Jadon 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 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 has been proved in this case as Ex. "Ka- 16".
After lodging the FIR, P.W. 1 came back to the hospital where the injuries of
all the four injured persons were examined by Dr. B.S. Babbar. As the condition
of the injured persons was serious, intimation was sent to Shri U.C. Tripathi
(D.W. 7), Sub-Divisional 48 Magistrate, Sahabad, for recording their
statements. The Magistrate came and recorded the statements of P.W. 3 and C.W.
1 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 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,
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 I.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. 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 Penal 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
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 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.
6. Shri Rajendra Singh, learned counsel
appearing for the appellants in Criminal Appeal No. 175 of 1974, first submits
that 49 the conviction of the four appellants is unsustainable in law; he
submits that the evidence of the four witnesses, namely, P.W. 1, Sulley, C.W.
1, 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
interested and their evidence cannot be safely relied on.
The High Court has found that the testimony
of the eye witnesses, namely, P.Ws 1, 2, 3 and C.W. 1 "suffer from
numerous infirmities". It, therefore, sought support to their testimony
from the two earlier statements erroneously called dying declarations, 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. 1 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 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 has 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
participation in the occurrence have been proved by the prosecution beyond
We agree with the finding of the High Court
that the presence and participation of appellants Maqsoodan, Madan Mohan,
Prayagnath and Nando, who are appellants in Criminal Appeal No. 175 of 1974 has
been proved beyond reasonable doubt, despite the improvements and variations in
Shri Rajender Singh has submitted that it is
not safe to rely on the testimony of P.Ws. 1, 2, 3 and C.W. 1 as the
prosecution has 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 has 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 has criticized that during the course
of evidence, prosecution alleged that Maqsoodan 50 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 not tutored and they gave no parrot like stereotyped
evidence. It may be remembered that P.W. 1 who lodged the FIR received as many
as seven incised wounds, one of them being on the left chest; he took Jadon,
who had received serious injuries and who later on succumbed lo them, and C.W.
1, who received five incised injuries and P.W. 3, who has also seriously
injured, to the hospital. He lodged the FIR thereafter. The condition of his
mind and disposition can easily be imagined. There were bound to be some errors
in the FIR. It may also be remembered that the FIR was lodged within half an
hour of the occurrence. There was little time lost. The occurrence took place
at about 6.00 a.m. on 8.6.1972 It is nobody's case that the witnesses were
unable to recognise the real culprits. The accused persons were well-known to
the witnesses from before. They did not have any reason to omit the real
culprits and implicate falsely the accused persons. The evidence of P.Ws. 1, 2,
3 and C.W.1 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.1 (Ex. Ka- 22 and Ka-23) respectively.
7. Exts. Ka-22 and Ka-23 have been wrongly
called dying declarations. The statement written or verbal, of relevant facts
made by a person who is dead, is called a dying declaration; it is relevant
under Section 32 of the Evidence Act, when the statement is made by the person
as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in case, in which that person's death
comes into question.
When a person who has made a Statement, may
be in expectation 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,, are not admissible under
Section 32; but their statements however are admissible under Section 157 of
the Evidence Act as former statements made by them in order to corroborate
their testimony in the Court. In the instant case, Ex. Ka-22 and Ka-23
respectively corroborate the testimony in Court of P.W. 3 and C.W. 1
8. The High Court has found that the witness
later on improved the story and roped in some other persons. As a rule of 51 cautions,
the High Court has found that the participation of the four 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 do not find valid reason to interfere with this finding
of fact of the High Court, in these appeals under Article 136 of the
9. As the number of accused persons present
and participating in the occurrence have not been proved to be five or more,
the High Court 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 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.
10. Shri Rajinder Singh next submits that if
any offence at all has 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 held the post-mortem examination on
the dead body of Jadon found a number of wounds out of which the following were
1. Incised wound 2" x 1/4" x scalp
deep on head.
2. Incised wound 3" x 1/4" x scalp
deep on the head
3. Stiched wound with draining tube 3"
towards upper portion of the stomach on right side.
4. Stiched wound 1.1/2" on the upper
portion of the left side of the stomach.
In his opinion, death was due to cyncope
following shock and Haemorrhage as a result of the injuries. According to him,
injuries No. 1 & 2 separately was sufficient to cause death in the ordinary
course of nature. It, therefore, cannot be argued that the offence committed
was not murder.
52 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 someone, "kill, kill", when
all of them simultaneously attacked the deceased and P.Ws.
1, 2, 3, and C.W. 1. After the occurrence,
they left 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 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
12. In the result, the State appeals are also
P. B. R. Appeal dismissed.