[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1668 OF 2005

Abrar                   ….Appellant

Vs.

The State of Uttar Pradesh       …Respondent

J U D G M E N T  

HARJIT SINGH BEDI, J.

This  appeal  by  way  of  special  leave  arises  out  of  the  

following facts:

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,  

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  

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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.  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  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 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 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  

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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,  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 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  intestines  and  the  kidneys  were  found  to  be  

lacerated.   The 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.  

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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  

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  

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 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  

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could not 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 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.  

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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.

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  

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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.   

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  

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.   

6. We have heard the learned counsel for the parties very  

carefully.   It  has  rightly  been  pointed  out  by  the  learned  

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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  

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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.

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 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

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NEW DELHI

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