Abrar Vs. The State
of Uttar Pradesh
JUDGMENT
HARJIT SINGH BEDI, J.
1.
This
appeal by way of special leave arises out of the following facts:
2.
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 SuhasiniTalkies. As he reached near the house of Saeed Khan, he found
the four accused, Mukhtar, Abrar, Mateen and Usman, 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 be done away with on which Abrar, the
appellant herein, fired at him from the rear.
3.
The
alarm raised by the victim attracted Muzur PW-6, Durga Ram PW-7 and one Bissuto
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 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 gunshot
injuries over theleft side of the back in an area 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 there after dictated
a report to him and after it 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.
4.
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 PW-9
reached the hospital at 10.50 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, at11.50 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 Section302 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 intestines and the kidneys were
found to belace rated. The doctor opined that the death had occurred due to
shock and hemorrhage resultant to abdominal injuries. The accused were,
accordingly, arrested and ultimately brought to trial for an offence punishable
under Section302/34 of the IPC.
5.
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 eyewitnesses named in the FIR, (but who did not support the prosecution),
Dr. S.N.Pandey PW-8, the doctor of the District Hospital who had certified as
to the mental condition of thevictim 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 Section 313 of the Cr.P.C. They
pleaded false implication due to enmity.
6.
The
trial court observed that as the two eye witnesses had turned hostile, the case
rested exclusively on the three dying 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 be relied upon and accordingly taking the murder as a
blind one, acquitted the accused. The matter was there after 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 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 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 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 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, 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, 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.
7.
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 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 assailants as there was no
evidence to show that he was either carrying a torch or there was any electric
light available at the site where he had been shot.
8.
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 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 11.50 p.m. after he had taken a certificate from the doctor that the
victim's fitness to make a statement.
9.
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 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
Cr.P.C. and a third recorded by the Tahsildar are unanimous as all the accused find
mention therein. The High 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 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 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. 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 dying declarations.
10.
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 10.30p.m. i.e. within an hour of the incident under Section 307 of the
IPC. We, therefore, find no merit in the appeal. It is, accordingly,
dismissed.
............................J.
(HARJIT SINGH BEDI)
............................J.
(P. SATHASIVAM)
............................J.
(CHANDRAMAULI KR. PRASAD)
16TH
DECEMBER 2010
NEW
DELHI
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