[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1680-1682 OF 2007

Munnawar & Ors.  …….Appellant (s)  

Versus

State of U.P. etc.         ……..Respondent (s)

J U D G M E N T  

HARJIT SINGH BEDI, J  .   

The facts leading to the filing of these appeals are as under:

1. On the 20th May 2000, Fateh Mohammad deceased, Mohammad  

Shamoon PW-1 and his elder brother Wali  Mohammad PW-2 were on  

their way to Court for appearing in a case.  They got down from the bus  

at  about  11.15  a.m.  at  Mawana  Bus  Stand,  Meerut  and  moved  on  

towards the Courts and as they reached near the office of the Bus Union,  

Yaqoob and Manabbar and Qasim sons of  Khuda Bux,  Qasim son of  

Sanabbar  and Zuber  son of  Manabbar,  all  residents  of  village  Bisola,  

Police Station Evoli, armed with country made pistols, started firing at  

Fateh  Mohammad.   Mohammad  Shamoon  and  Wali  Mohammad  ran  

towards  the  Sardhana  Bus  Stand  to  save  their  lives  and  in  the  

meanwhile the assailants ran away from the spot.  Fateh Mohammad,

seriously  injured,  was  admitted  to  Jaswant  Rai  Speciality  Hospital,  

Saket, Meerut by Mohammad Shamoon and was examined by Dr. Anil  

Kapoor PW.4 at 11.35 a.m.  Mohammad Shamoon thereafter lodged a  

report  at  about  12  noon  at  Police  Station,  Civil  Lines,  Meerut  at  a  

distance of two furlongs from the place of incident.  Sub-Inspector Dhani  

Ram Arya PW.11 also visited the hospital and recorded the statement of  

the injured and the other witnesses including Wali Mohammad.  He also  

moved  an  application  for  recording  the  dying  declaration  of  Fateh  

Mohammad which was duly recorded on the 21st May 2000 at 8.15 p.m.  

by Shri Rajdev Singh, Additional City Magistrate, Meerut in the presence  

of Dr. Narender Trivedi PW.6.  The Sub Inspector also visited the place of  

incident  and  made  the  necessary  enquiries.   Fateh  Mohammad  

succumbed to his injuries on the 25th May 2000 and on receiving this  

information  Sub-Inspector  Subhash  Chaudhary  PW.5  reached  the  

hospital, drew up the inquest proceedings and sent the dead body for its  

post-mortem examination.  The case was also converted from one under  

Section 307 to 302 of the IPC.  On the completion of the investigation, a  

charge-sheet was filed with respect to Manabbar, Qasim and Zuber as  

Yaqoob  had,  in  the  meanwhile,  absconded.   The  prosecution  placed  

primary reliance on the evidence of the two eye witnesses, Mohammad  

Shamoon PW 1 and Wali Mohammad PW 2.   Dr. Anil Kapoor PW 4, who  

had examined Fateh Mohammad on 25th May 2000 at 11:30 a.m., Dr. N.  

Trivedi PW-6, who had certified Fateh Mohammad as being fit at the time  

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of  the  reading  of  the  dying  declaration,  Shri  Rajdev  Singh  PW-10  

aforementioned,  Dhani  Ram  Arya  PW  11  the  police  officer  who  had  

recorded the first dying declaration of Fateh Mohammad as a statement  

under Section 161 of the Cr.P.C. in the case diary, Dr. N.K. Gupta PW 3,  

who had conducted the autopsy on the dead body and had opined that  

death had been caused due to Septicemia and shock as a result of ante-

mortem  injuries  and  Sub-Inspector  J.S.Pundhir  PW  9,  who  had  

investigated the case under Section 302 of the IPC and had recovered  

two country made pistols at the instance of Qasim and Zuber accused.  

The accused in their statements under Section 313 of the Cr.P.C. denied  

all allegations and pleaded false implication.  They also produced some  

witnesses in defence and in particular DW1 V. Roy a Ballistic expert, who  

deposed that if a bullet was left embedded in the body it could result in  

Septicemia.  The trial court relying on the aforesaid evidence convicted  

the accused for an offence under Section 307 of the IPC and sentenced  

them to rigorous imprisonment for 4 years and fine of Rs.5,000/- each  

but acquitted them of the offence under Section 302 of the IPC.  Two  

appeals were filed in the High Court, one by the accused-appellants and  

the  other  by  the  State  Government  challenging  the  acquittal  of  the  

accused for the offence under Section 302 of the IPC.  The High Court by  

the impugned judgment dated 8th August 2007 dismissed the appeal filed  

by the accused but allowed the State appeal and convicted the accused-

appellants for the offence punishable under Section 302/149 of the IPC  

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and  sentenced  them to  undergo  imprisonment  for  life.   It  is  in  this  

background that the matter is before us at the instance of the accused.  

2. Mr. Sushil Kumar, the learned senior counsel for the appellants  

has raised four arguments in the course of the hearing.  It has first been  

submitted that the first dying declaration recorded by PW Dhani Ram  

Arya of Police Station, Civil Lines, Meerut in the Jaswant Rai Specialty  

Hospital did not bear the signature of the deceased or the endorsement  

of a Doctor as to the fitness of the injured and no credence could thus be  

attached  to  it.   It  has  also  been  submitted  that  the  second  dying  

declaration recorded in the hospital by Shri Rajdev Singh, Additional City  

Magistrate, Meerut on the 21st May 2000 had not been properly endorsed  

by the Magistrate and did not satisfy the tests or instructions laid down  

relating to the recording of dying declaration and as the endorsement of  

the Doctor did not reveal the medical condition of the injured, this too  

was unreliable and could not be relied upon.  For these assertions, the  

learned counsel has placed reliance on  Balak Ram vs. State of U.P.  

1975(3) SCC 219 and  K. Ramachandra Reddy & Anr. vs. The Public  

Prosecutor 1976(3) SCC 618.  It has, in addition, been submitted that as  

per  the  evidence  on  record  the  victim  Fateh  Mohammad  had  been  

admitted in the hospital not by Mohammad Shamoon PW 1 but by J.S.  

Pundhir  PW 9 a  Police  Officer  as  per  the  statement  of  Sub-Inspector  

Subhash Chaudhary PW 5 and this by itself made it apparent that the  

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two eye witnesses had not been present at the spot and had been called  

long  after  the  incident.   It  has  finally  been  submitted  that  from the  

medical and the other evidence it was clear that the appellants were, if at  

all, guilty for the offence under Section 307 of the IPC, as held by the  

trial court and not under Section 302 of the IPC, as held by the High  

Court, and for this additional reason the appeal was liable to succeed.   

3. The learned State  counsel  has,  however,  controverted the stand  

taken by Mr. Sushil Kumar.  It has been submitted that even assuming  

that there was some flaw in the recording of the first dying declaration by  

D.R. Arya, no serious objection could be raised with regard to the second  

dying declaration recorded by the Executive Magistrate.  It has, further  

been submitted that the very promptness in the recording the FIR belied  

the argument that the eye witness had been brought to the scene long  

after the event.  It has also been argued that the evidence of Dr. N.K.  

Gupta  PW3  would  indicate  that  the  injuries  suffered  by  Fateh  

Mohammad  were  the  immediate  and  proximate  cause  of  death  and  

merely because there was a time lag between the injury and death would  

not make any difference in so far as culpability of the appellants for the  

murder was concerned.   

4. We  have  considered  the  arguments  advanced  by  the  learned  

counsel for the parties very carefully.   It is true, as contended by Mr.  

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Sushil Kumar, that PW Dhani Ram Arya the Police Officer had recorded  

the statement of Fateh Mohammad in the case diary as being one under  

Section 161 of the Cr.P.C.  It is also true that this statement had not  

been recorded in the manner provided by the Police Regulations with  

regard to the recording of dying declarations by Police Officers.  Left at  

this stage perhaps, the judgment of the Supreme Court in Balak Ram’s  

case (supra) would apply and the accused would be entitled to submit  

that this dying declaration could not be relied upon, but we notice that a  

second  dying  declaration  had  also  been  recorded  by  the  Executive  

Magistrate PW Rajdev Singh and that this statement was in substance  

identical with the statement recorded by Dhani Ram.  The second dying  

declaration recorded at 8.15 p.m. in the Jaswant Rai Specialty Hospital  

gives full details as to the identity of the assailants, the weapons they  

were using, the site of the injury and the fact that he had been brought  

to hospital by a neighbour and his elder brother who were accompanying  

him at the time of incident.  We also find that Dr. N.K. Trivedi PW 6 who  

was  looking  after  Fateh  Mohammad  when  the  dying  declaration  was  

recorded gave a certificate that he had been fully conscious and lucid at  

the time of its recording.  PW Raj Dev Singh also deposed that Fateh  

Mohammad was fully conscious when the dying declaration had been  

recorded by him.  It has been submitted by Mr. Sushil Kumar that the  

injuries on the person of the deceased were so serious that the evidence  

of the Executive Magistrate endorsed by the Doctor with regard to the  

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fitness of Fateh Mohammad, was a matter of suspicion.  We see no basis  

for  this submission for the simple reason that Fateh Mohammad had  

died long after he had sustained the injuries and we have no reason to  

disbelieve  the  statement  of  the  Executive  Magistrate  or  the  attending  

Doctor. In Balak Ram’s case this Court dealt with two dying declarations,  

one recorded by the investigating officer in the case diary which was held  

to be unreliable and the other by the Executive Magistrate which was  

held to be reliable notwithstanding the fact that the injured, when taken  

to the hospital, was in a very critical condition.  This Court observed that  

though  there  may  be  some  suspicion  with  regard  to  the  statement  

recorded by the Police Officer, the same could not be said of the second  

dying declaration.  It was observed thus:

“The  circumstances  surrounding  the  dying  declaration,   though uninspiring,  are not  strong  enough to  justify  the  view  that  officers  as  high  in  the  hierarchy  as  the  Sub-Divisional   Magistrate, the Civil Surgeon and the District Magistrate hatched  a conspiracy to bring a false document into existence.  The Civil   Services have no platform to controvert allegations,  howsoever  grave and unfounded.  It  is,  therefore, necessary that charges  calculated to impair their career and character ought not to be   accepted except on the clearest proof.  We are not prepared to   hold that the dying declaration is a fabrication.”  

5. The aforequoted paragraph fully supports the view that (save for  

very good reasons)  a  dying declaration recorded by a Magistrate  duly  

endorsed  by  a  Doctor  should  not  be  discarded.   In  K.Ramachandra  

Reddy’s  case  (supra),  this  Court  again,  on  an  appreciation  of  the  

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circumstances leading to the recording of the dying declaration, held that  

it could not be relied upon.  It is, therefore, obvious that the fact as to  

whether a dying declaration is reliable or not would depend upon the  

facts of the case and the evidence produced by the prosecution and no  

hard and fast rule by way of precedent can ever be adopted.  As already  

observed by us, there are no suspicious circumstances whatsoever with  

regard to the dying declaration recorded by Rajdev Singh and endorsed  

by  Dr.  Trivedi  and  no  substantial  reason  has  been  spelt  out  by  Mr.  

Sushil Kumar as to why these officers would be a party in favour of the  

prosecution.  It is also extremely relevant that in both the cited cases,  

the primary argument was based on the physical condition of the maker  

of the dying declaration i.e. deceased.  In the present case, however, the  

fact that the deceased had remained alive for a long period of time after  

the incident and died several days later of septicemia brought about by  

the gunshot injury clearly shows that his condition was not overly critical  

or precarious when the dying declaration had been recorded.  

6. Mr. Sushil Kumar has also argued that the two eye witnesses were  

not  present  and  the  story  that  they  had  admitted  the  injured  Fateh  

Mohammad  to  hospital  was  incorrect,  more  particularly  as  per  the  

evidence of Sub-Inspector Subhash Chaudhary PW5, Fateh Mohammad  

had  been  admitted  by  J.S.  Pundhir  PW  to  the  hospital.   It  has,  

accordingly, been submitted that the duo had been brought to the place  

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of incident after the incident had taken place and had been put up as eye  

witnesses.   It  has  been  submitted  that  though  it  appeared  that  the  

incident had happened at 11.15 a.m. on the 20th May 2000 and the FIR  

had been recorded 45 minutes later but the facts indicated that it had  

been recorded much later and ante-time so as to make it possible for the  

eye witnesses to be brought to the spot and this plea was strengthened  

by the admitted position and that the special report had been delivered  

to the Magistrate on the 23rd May 2000 and no explanation had been  

tendered as to why the delay had occurred.  Prima facie, it appears that  

some delay had occurred for the delivery of the special report, but that by  

itself can be no consequence more particularly as the incident, as at that  

time, had not led to the death of the victim and case under Section 307  

of the IPC had been registered.  We see from the evidence of PW Dr. Anil  

Kapoor, that Fateh Mohammad had been admitted to the Jaswant Rai  

Specialty Hospital at 11.35 a.m. on 20th May 2000 by PW Shamoon his  

son and that the injured was irritable but was mentally conscious at the  

relevant time.  When cross-examined as to whether J.S. Pundhir had  

admitted the injured to the hospital on the basis of the Memo 13-A/T8,  

the Doctor explained that he was the Doctor In Charge and the Bed Head  

Ticket had been recorded by him on the admission sheet.  It is, therefore,  

obvious  that  the  prosecution  story  that  Mohammad  Shamoon  had  

admitted  Fateh  Mohammad  to  the  hospital  finds  full  support  of  an  

independent  witness,  i.e.  Dr.  Anil  Kapoor.   Mr.  Sushil  Kumar  has,  

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however, referred us to the cross-examination of Sub-Inspector Subhash  

Chaudhary PW who had entered into the investigation after the death  

Fateh Mohammad that as per the memo receipt after the death of Fateh  

Mohammad, it was Sub-Inspector J.S.Pundhir who had admitted Fateh  

Mohammad  to  the  hospital.   We  are  of  the  opinion  that  this  memo  

cannot be relied upon in the face of  the statement made by Dr.  Anil  

Kapoor and by J.S. Pundhir PW himself very emphatically testified that  

he had not admitted Fateh Mohammad to the hospital.  Any doubt as to  

the suspicion with regard to the promptness of the FIR or the ante-timing  

of the FIR on account of the delivery of the special report under Section  

157 of the Cr.P.C. is, therefore, clearly dispelled.  

7. We,  therefore,  find  that  the  promptness  of  the  FIR  is  a  clear  

reflection of the fact that the two eye witnesses had been present at the  

time of incident.  It must also be borne in mind that as per the evidence,  

Fateh Mohammad and family were involved in several criminal and civil  

litigations with other persons.  It is also the admitted position that Fateh  

Mohammad and party were on their way to attend a court hearing when  

they  had  been  attacked.   We  must  also  observe  that  those  who  are  

involved in serious criminal litigation seldom go alone to attend court  

hearings, and are invariably accompanied by other persons as per the  

dictates  of  tradition  and  prudence  in  rural  North  India.   We  must,  

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therefore, accept the presence of the two eye witnesses PW’s Shamoon  

and Wali Mohammad.  

8. Mr. Sushil Kumar has also pointed out that the Sessions Judge  

had, in his judgment, acquitted the accused-appellants for the offence  

punishable under Section 302 of the IPC but had convicted them under  

Section 307 of the IPC and that in any case this was the proper order to  

be made in the peculiar facts of the case.  It has been submitted that the  

injuries had been suffered by Fateh Mohammad on the 20th May 2000  

but he had died on the 25th May 2000 and that as per the statement of  

PW Dr. N.K. Gupta, who had conducted the post-mortem of the dead  

body, the death was due to septicemia on account of the infection caused  

by  the  injuries  and  that  had  Fateh  Mohammad  been  given  proper  

treatment,  he may have survived.  It  has been pleaded that from the  

evidence of PW Dr. Anil Kapoor, who had initially treated the injured at  

the Jaswant Rai Specialty Hospital, it  was apparent that the infection  

had set in on account of the lack of proper treatment and that in the  

light of  this medical  opinion the appellants were entitled to claim the  

benefit of doubt and plead that, if at all, a case under Section 307 of the  

IPC was spelt out.  We are of the opinion, however, that the trial court  

has ignored some basic issues.  We have gone through the statement of  

the Dr. Anil Kapoor who had noticed the following injuries on the person  

of the Fateh Mohammad at the time of his admission to hospital:

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1. Lacerated wound size of wound 2.9. x 1.0 cms fresh bleeding  present.  Depth not probed, with inverted margins present at  right side of chest 08.0 cms from right nipple at 2.00 o’clock  position.   Tattooing present  in an area of  17.0 x 4.5 cms  area.

2. Tattooing without any wound present over right side of neck  obliquely vertical in an area of 9.0 cms x 3.0 cms upper end  starting at the level of mastoid process, 04.0 cms posterior to  mastoid process.  

3. Lacerated wound with inverted margins present over left side  of face 5.0 x 2.0 cms x depth not probed.  2.0 cms below left  eye.  Tattooing present around the wound in an area of 6.0 x  5.0 cms.  Fresh bleeding present.   

4. Lacerated wound with inverted margins present over back of  left hand 13.0 cms below left oleranon process size 3.0 cms x  1.0 cm x depth not probed, fresh bleeding present.  Tattooing  present in an area of 4.0 x 3.0 cms around wound.  

5. Lacerated wound with everted margins present over antero- lateral  size of left  forearm size 1.0 x 1.0 cms x depth not  probed fresh bleeding present.  

6. Lacerated wound with everted margins 4 x 2 cms x depth not  probed  present  over  right  scapular  rg.7.0  cms  from post.  Axillary line fresh bleeding present.  

7. Lacerated wound with everted margins 1.0 x 1.0 cms x depth  not probed present over left scapular rg.6.0 from mid line,  fresh bleeding present.  

9. We see from the injuries that they had been caused from a very  

close range as tattooing was present.   Dr. Anil Kapoor also pointed that  

injury Nos.1, 3, 6 and 7 were grievous and were fatal to life and all the  

injuries were sufficient to cause death as they were on sensitive parts of  

the body and that the injured was under severe shock, and had been  

given three units of blood at the time of his admission to hospital.  In the  

light of this evidence, we are unable to comprehend as to how the trial  

court could have concluded that it was the negligence on the part of Dr.  

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Anil Kapoor which had led to septicemia and finally to the death of the  

patient.   

We, therefore find no merit in these appeals.  Dismissed.

…….…………………………. (H.S. BEDI)

………………………………… (J.M. PANCHAL)

Dated: 05 May, 2010 New Delhi  

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