15 December 1982
Supreme Court


Case number: Appeal Criminal 175 of 1974








CITATION:  1983 AIR  126            1983 SCR  (2)  45  1983 SCC  (1) 218        1982 SCALE  (2)1351

ACT:      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.

HEADNOTE:      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. 302/34, IPC.                                                     [52 A-C]

JUDGMENT:      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 Complainant.      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 as follows:      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 some one 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 reasonable doubt. 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  their evidence.      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 sd  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 respectively. 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 caution, 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 Constitution.      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 serious:      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 some one, "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 and 148.      12.  In   the  result,   the  State  appeals  are  also dismissed. P. B. R.                                   Appeal dismissed. 53