http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: NISHAR AHMED FAJMOHMED KAJI

       Vs.

RESPONDENT: STATE OF GUJART

DATE OF JUDGMENT:       07/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 7TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice M.M.Punchhi               Hon’ble Mr.Justice M.Srinivasan Narayan N.  Keshwani, R.N.  Keshwani and Sanjay Kumar, Advs. for the appellant Dr. N.M.  Ghatate, Sr.Adv.,  S.K.  Sabharwal,  Ms.  Neithono Rhetaso, and  Ms. Hemantika  Wahi, Advs.  with him  for  the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Srinivasan, J. 1.   The appellant and another per son by name Dilip Bhagwan Rai were  prosecuted in  the Court  of Sessions,  Valsad  at Navasri, State  of Gujarat for the offences punishable under Sections 302  and 34  of the I.P.C. on the charges that they committed murder  of one  Gajanand Patel  on 4.8.1984 within the  compound of Court of Judicial Magistrate (F.C.), Pardi. The deceased  was an  advocate by profession and the General Secretary of  an employees’  union.   On 4.8.1984  at  about 11.45 a.m.  he reached  the Court of the Judicial Magistrate by car  alongwith four  other persons,  three of  them being advocates.   When the  deceased was climbing the steps to go to the  court room,  he was  shot by   the  appellant with a pistol.   There were thereof firings.  While two of them hit the deceased,  one just caused abrasion on his body and fell outside.  He was taken to the court room and soon thereafter he was  removed to  Dr. Nedkarni’s  treatment by Dr. Purnima Nadkarni.   She advised  to take him to Kasturba hospital at Valsad for  further treatment.   At  about 12.30  p.m he was taken to  the said  hospital.  A message had meanwhile call. A sub-inspector the complaint of the victim.  Thereafter the Sub-inspector  conveyed   the  message   to  the   executive Magistrate who  went to  the hospital at about 2.00 p.m. and recorded the  dying declaration of the injured.  In the said dying declaration  as well  as in  a statement  made by  the deceased  in  Dr.  Nadkrani’s  hospital,  the  name  of  the appellant was  mentioned as  the person who shot the victim. The doctor  started the  operation at  about 3.30  p.m.  and completed the same at about 7.25 p.m But soon thereafter the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

victim collapsed and died at about 7.30 p.m. 2.   It  was   found  that   the  appellant  and  the  other accomplice were in the court room of the Judicial MAGISTRATE (F.C.), Valsad  for attending a case under police bandobest. The appellant  and his  accomplice were taken to custody and interrogated by the police. They were  arrested at about 8.30 p.m. in the police station at Valsad.    According  to  the  prosecution  on  4.8.84  a judgment was  to be  delivered by  the J.M.F.C,  Valsad in a case wherein  the appellant  and his accomplice were accused and they were present in Court for that purpose and that the police had  given them  bandobest as they apprehended breach of peace.   Both  had left  the court  premises around 11.00 a.m. and returned to the Court at 12.30 p.m.  They were seen to be  coming on  a moter-cycle  and parking the same in the compound.   As it was raining on that day the clothes of the accused were also found wet. 3.   The prosecution  examined for  eye witnesses  three  of whom were advocates who went to the Court at Pardi alongwith the deceased in the same car and the fourth being the driver of that  car.  Dr. Purnima Nadkarni who gave the preliminary treatment to  the deceased  soon after  the incident and Dr. Harit Desai  who operated on the deceased were also examined as PWs  13 and  12  respectively.    The  secretary  of  the deceased who  had taken  him to  the hospital in a tempo was examined as  PW 7.    The  Head  Constable  who  was  posted alongwith other  policemen for the bandobast in the Court at Valsad was  examined as  PW.16.  The two statements given by the deceased  in the hospital were marked as Ex.44 and Ex.53 On a  consideration of  the entire  evidence on  record, the Sessions Judge held that the prosecution had established its case against the accused beyond any doubt and convicted them under Section  302 and 34 I.P.C. The appellant was convicted also under  Section 25-A of the Arms Act.  The appellant was sentenced to  life imprisonment  and payment  of fine of Rs. 500/- for the offence under Section 302 read with Section 34 I.P.C.  For the other offence he was sentenced to undergo RI for six  months concurrently.   The  accused  preferred  and appeal before  the High  Court.   During the pendency of the appeal and  other accused  Dilip Bhagwan Rai expired.  On an analysis of  the evidence, the High Court concurred with the view expressed  by the  Sessions  Judge  and  confirmed  the conviction and  sentence.   The appellant has preferred this appeal by Special Leave. 4.   Learned counsel for the appellant has vehemently argued that the  case of  the prosecution  is wholly improbable and that it  has  not  been  proved  by  satisfactory  evidence. According to  him, when  the accused were admittedly present in the  court of  JMFC, Valsad  under the  bandobast of  the police they  could not  have gone  to the court at Pardi and committed the  offence as alleged by the prosecution.  It is argued that  the version  of the  Head Constable  PW  16  is totally unacceptable  on the  face of  it, in the absence of any record  to support  the same and he should not have been believed by the courts below. 5.   We do  not find  any merit  in this  contention.    the evidence of  PW 16 is quite natural and in the circumstances of the  case there  could not  have been  any record for the absence of the accused for about an hour and a half from the premises of the court at Valsad.  The Trial Court as well as the High  Court have  discussed his  evidence at  length and considered the present contention in the proper perspective. We do  not find  any infirmity  in the  said discussion.  We have no  reason whatever to differ from the courts below and disbelieve PW 16.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

6.   The  second  contention  of  learned  counsel  for  the appellant is  that all the four eye-witnesses are interested persons and  they are  not worthy of any credence.  There is nothing on  record to  show  how  the  said  witnesses  were interested to  speak against  the accused.  Nothing has been placed on  record to  indicate any enmity or motive on their part to speak against the accused.  The mere fact that three of them  were advocates and the fourth was the driver of the deceased  is  not  sufficient  to  dub  them  as  interested persons.  There is no doubt whatever that the said witnesses were in the same car by which the deceased went to the court at  Pardi  and  they  were  all  present  at  the  scene  of occurrence.  We do not find any merit in this contention 7.   The next contention is that the High Court was in error in refusing  permission to  the  appellants  to  examine  an independent eye  witness by name Kirti Ratilal Rajput and an adverse  inference   should  have  been  drawn  against  the prosecution for  not examining the said person in court as a witness.   During the  pendency of  the appeal  in the  High Court, the  appellant filed  an  application  for  examining Kirta Ratilal Rajput as a court witness alleging that he was an independent eye witness and his statement was recorded in the course of investigation under Section 162 of the Cr.P.C, but  the   prosecution.    We  are  unable  to  accept  this contention.   The High  Court had  found that  the statement made before  the police by the said Kirti Ratilal Rajput was not against  the prosecution  and in  no sense  or manner in favour of  the appellant  The application  for examining him was made  after a  lapse of  seven years  from the  date  of occurrence, some  time before  the  hearing  of  the  appeal though the  appeal was  itself pending  from 1985.  The High Court has  rightly rejected  the application  filed  by  the appellants. 8.   The fourth  contention of  learned counsel  is that the eye witnesses  did not  identify the  accused and  could not have identified  him.  He placed reliance on the judgment of this Court  in State  of Orissa versus Brahmananda, AIR 1976 SC 2488  wherein it  was held  that if  in a murder case the entire prosecution depended on the evidence of the person of a person  claiming to be an eye witness and the said witness did not  disclose the  name of the assailant for a day and a half after the incident and the explanation offered for such non-disclosure was  unbelievable, such  non-disclosure was a serious infirmity  which destroyed  the credibility  of  the evidence of  the witness and that the High Court was correct in rejecting  it  as  untrustworthy.    There  is  no  merit whatever in the contention.  All the eye witnesses had known the appellant  for  more  than  three  years  prior  to  the occurrence.   Their presence  at the scene of occurrence was quite natural  and established.  They had seen the appellant running away  from the  stops of the court room.  The courts below were  not in  error in accepting their testimony.  The above ruling cited by the learned counsel has no application in the facts of this case his contention is rejected. 9.   The fifth  contention  is  that  there  is  discrepancy between the medical evidence and the ocular evidence.  It is contended by  the learned  counsel that  the medical  report shows that  firing could  not have  taken place from a short distance and  the person,  who fired  the pistol should have been far  away and  therefore the  witnesses could  not have identified the  said person.   It is pointed out by the High Court there  cannot be  a  definite  opinion  regarding  the distance from  which shot was fired.  As per the evidence of PW 22,  a Senior  Scientific  Officer  in  Forensic  Science Laboratory, Ahmedabad,  on examination  of the skin samples,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

it could  not be  said with certainty whether the firing was from  a   particular  distance.     According  to  him,  the blackening of the skin would be there in a case of pistol or revolver fired  from the  distance of about 2 feet to 3 feet while powder marks could be detected even from a distance of 20 feet in cases of those two weapons.  He has also stated:      "I do  not agree  that as the range      increases tatooing  from the powder      more spare until no trace of powder      marks  are   found  which  normally      beyond a yard."      Thus  there  is  no  discrepancy  between  the  medical evidence and  ocular evidence.    this  contention  is  also rejected. 10.  The last  argument is  that the dying declaration given by the deceased should not have been accepted as the name of the accused  was introduced  therein at  the instance of his relatives and  it was  not mentioned  by the deceased on his own.    Learned  counsel  for  the  appellant  refers  to  a statement of  Dr. Hirabhai PW 12 to the affect that the name of the  accused was  given by  a relative  and  not  by  the deceased.  It is, therefore, contended that the deceased did not mention  the name of the appellant on his own in Ext.44. There is  no substance  in this contention.  Even before the deceased was  taken to  Kasturba hospital  at Valsad, he was given preliminary treatment by Dr. Purnima Nadkarni.  In her presence,  the  deceased  had  mentioned  the  name  of  the appellant as  the person  who had  fired the bullets at him. Her deposition in this regard is very clear and has not been shaken in  any manner  in the cross examination.  We have no hesitation to  affirm the view expressed by the courts below accepting the  reliability of  the dying  declaration of the deceased. 11.  Learned counsel  for the  appellant has placed reliance on the  judgment in Milkivet Singh versus State of Rajasthan AIR 1981  SC 1578.   In that case, the dying declaration was not attested  by the  wife of  the deceased  or  the  doctor present in  the hospital.   The  court found  that it  was a matter of  concoction.   Besides,  there  was  inconsistency between the  medical and  ocular evidence.   The  court held that the  conviction of  the accused  was unsustainable  and reversed the  judgment of the High Court.  the facts in that case are entirely different and the ruling has no bearing in the present case. 12.  On a  consideration of  all the  materials on record we have no  hesitation to affirm the concurrent judgment of the courts below and dismiss this appeal.