Sahebzade v. State Of U. P. — 1987 DIGILAW 898 (ALL)

JUDGMENT Umesh Chandra, J. 1. This appeal is directed against a judgment and order dated 11-3-1978, passed by V Additional District and Sessions Judge, Allahabad, in Sessions Trial No. A-476 of 1976, by which Sahebzade son of Akbar Ali, resident of village Manjhanpur was convicted and sentenced to ten years' rigorous imprisonment under Section 304 IPC and to six months' rigorous imprisonment under Section 323 IPC read with Section 34 IPC. The other appellant Chand Babu son of Bassan who is also a resident of village Manjhanpur was convicted and sentenced to 10 years' rigorous imprisonment under Section 304 IPC read with Section 34 IPC and to six months' rigorous imprisonment under Section 323 IPC. The sentences were ordered to run concurrently. 2. Akhtar Husain complainant and the appellants are close neighbours. Both are residents of village Manjhanpur. Sibtain Akhtar son of Akhtar Husain was teaching some boys of his mohalla which was not liked by the appellants. Two days before the occurrence when Sibtain Akhtar was in the grove of Mohd. Sadiq, both the appellants had asked him not to teach those boys and had threatened him with dire consequences. According to the prosecution when on 9-5-1975 at about 4.30 p. m. Sibtain Akhtar was passing through the lane running in between the houses of Mashooq Ali and Ghulam Husain and was returning to his home from the houses or Dr. Ali Amzad, the two appellants detained him and asked him to give up the tuitions. Sibtain Akhtar asserted that he would not give up the tuitions. Thereupon Chand Babu started giving him fist blows and Sahebzade gave him a knife blow on the left side of his chest. This incident was witnessed by Zaheer Hasan PW 2 and his son Bashir Hasan PW 3. These witnesses brought Sibtain Akhtar to his house where he narrated the incident to his father who scribed a report Ext. ka 1 and brought him to the police station. A report of the occurrence was lodged at police station Manjhanpur the same day at 5.30 p. m. Injured Sibtain Akhtar was brought to the police station in an ekka. Lok Nath Misra PW 5 was the constable Moharrir at the police station. He received the written report. On the basis of this report he prepared a first information report Ext. ka 8 and registered a case in the general diary. Ext. Lok Nath Misra PW 5 was the constable Moharrir at the police station. He received the written report. On the basis of this report he prepared a first information report Ext. ka 8 and registered a case in the general diary. Ext. ka 10 is a letter addressed to the Doctor of Primary Health Centre, Manjhanpur. Constable Rama Shanker took Sibtain Akhtar to the Primary Health Centre from where the complainant was directed to take the injured to the Hospital at Allahabad for treatment. The injured was brought to T. B. Sapru Hospital, Allahabad where Dr. J. K. Satsangi PW 6 examined his injuries at 8.30 p. m. Sibtain Akhtar had received one incised wound 1 1/4 " x 1/2 " on the left side chest 2 " below the left nipple. When the condition of Sibtain Akhtar became critical, he was sent to Swaroop Rani Medical Hospital. Sibtain Akhtar, however, died in Swaroop Rani Medical Hospital on 10-5-1975 at 11.50 a. m. On 11-5-1975. Dr. J. K, Satsangi PW 6 conducted the post-mortem examination. In the opinion of the Doctor death was caused due to shock and haemorrhage as a result of the injuries received by Sibtain Akhtar. Vishwanath Tripathi PW 7 was the A.S.I, attached to police statton Manjhanpur. He was not present at the police station when the case was registered. However, he started investigation and recorded the statements of the witnesses as also the statement of the deceased in Swaroop Rani Medical Hospital. After completing the investigation a charge-sheet was submitted against the appellants leading to their trial. 3. In support of the prosecution story Akhtar Husain PW 1, Zaheer Hasan PW 2 and Bashir Hasan PW 3 were examined. The learned Additional Sessions Judge found that Zaheer Hasan and Bashir Hasan were not present at the time of the occurrence. The statement of the deceased recorded by the Investigating Officer under Section 161 CrPC on which the prosecution relied as dying declaration was also disbelieved by the learned Additional Sessions Judge who, however, found that the oral statement made by the deceased to his father Akhtar Husain was wholly reliable and believing this statement he convicted and sentenced the appellants as mentioned above. Aggrieved, the present appeal has been filed. 4. Aggrieved, the present appeal has been filed. 4. To establish the charge against the appellants the prosecution relies (1) on the ocular testimony of Zaheer Hasan PW 2 and Bashir Hasan PW 3 alleged to be the eye-witnesses of the occurrence resulting in the death of Sibtain Akhtar, (2), the dying declaration recorded by the Investigating Officer under Section 161 CrPC and (3) the dying declaration alleged to have been made by deceased Sibtain Akhtar to his father Akhtar Husain, who lodged a report at police station Manjhanpur about an hour after the occurrence. The learned Additional Sessions Judge rejected the testimony of the two prosecution witnesses Zaheer Hasan PW 2 and Bashir Hasan PW 3 holding that both these witnesses were not present at the time of the occurrence. The learned Additional Sessions Judge also rejected the statement of the deceased alleged to have been recorded by the Investigating Officer in Swaroop Rani Medical Hospital, Allahabad. However, the Additional Sessions Judge relied on the statement made by the deceased to his father and held that as the deceased had named the appellants as assailants and there is nothing to taint this dying declaration, the same can be the basis for conviction. The oral testimony of the two witnesses Zaheer Hasan and Bashir Hasan was rightly rejected by the learned Additional Sessions Judge. Bashir Hasan is the son of Zaheer Hasan and both of them are related to Akhtar Husain it is admitted by Akhtar Husain PW 1 that his sister is married to Zaheer Hasan. He is also his cousin. Secondly, Zaheer Hasan at the time of the occurrence was a peon attached to Collection Amin Babu Lal Misra. Satish Chandra DW 1, A.W.B.N. Tahsil Manhanjpur had produced the register of collection and casual leave to show that Babu Lal Mishra along with Zaheer Hasan had come to the Tahsil on 8-5-1975 to deposit a sum of Rs. 2,299/- in the Treasury. The casual leave register of the year 1975, the earned leave register of the same year, the bill book and the acquittance roll were produced by Sri Ghulam Mohammad Farooq which shows that the statement of Zaheer Hasan that he was on leave that day is incorrect. 2,299/- in the Treasury. The casual leave register of the year 1975, the earned leave register of the same year, the bill book and the acquittance roll were produced by Sri Ghulam Mohammad Farooq which shows that the statement of Zaheer Hasan that he was on leave that day is incorrect. The learned Additional Sessions Judge has rightly pointed out these documents which fully prove that the statement of Zaheer Hasan PW 2 that he was coming out of the mosque after his evening prayer at the time of the occurrence, cannot be believed. Thirdly, Sibtain Akhtar died on Friday when usually there is mass prayer in the mosque at about 1 p. m. These two witnesses had not attended this mass prayer. They tried to explain it by saying that both of them took sometime in getting ready for the noon prayers and as they could not go to the mosque in the noon prayer, therefore, they had gone to the mosque at about 4 p. m. This statement was also rightly rejected by the Additional Sessions Judge because according to Zaheer Hasan he was on casual leave on that day and according to Bashir Hasan he had closed his shop on Friday. Both these witnesses had, therefore, no valid reason not to attend the mass prayer at 1 p. m. Obviously the witnesses have taken this stand to prove their presence at the place of occurrence. For the reasons mentioned above, the findings of the learned Additional Sessions Judge that both these witnesses were not present at the time of the occurrence and have not witnessed the assault is confirmed. 5. According to Akhtar Husain PW 1 the statement of the deceased was recorded by the Investigating Officer in the Hospital between 9 and 10 a. m. on 10-5-1975. Soon thereafter the Investigating Officer also recorded the statement of Akhtar Husain. Vishwanath Tripathi PW 7 has stated that he was not present at the police station when the report was lodged. According to general diary entry no. 22, the case was to be investigated by A.S.I. Vishwanath Tripathi on his return to the police station. Vishwanath Tripathi has been out of the police station in connection with evidence in a case under Section 304 IPC State v. Mata Din and another under Section 457 IPC against Amrit Lal and others of police station Bara. 22, the case was to be investigated by A.S.I. Vishwanath Tripathi on his return to the police station. Vishwanath Tripathi has been out of the police station in connection with evidence in a case under Section 304 IPC State v. Mata Din and another under Section 457 IPC against Amrit Lal and others of police station Bara. It is admitted by Vishwanath Tripathi that he received the papers of this case on return from Bara on 10th May 1975 at about 7 a. m. and that thereafter he soon started for Sadar and went to Swaroop Rani Medical Hospital where he recorded the statement of the deceased. This statement cannot be believed. Firstly, because in the G. D. entry no, 9 relating to the departure, of Vishwanath Tripathi which he himself had recorded he had not noted that from Sadar he will go to Swaroop Rani Medical Hospital for recording the statement of the deceased. Secondly, constable Rama Shanker who had taken the injured first to the Hospital at Manjhanpur and then to Beli Hospital and subsequently to Swaroop Rani Medical Hospital, Allahabad, returned to the police station on 10-5-1975 at 8.35 a. m., i.e., after the departure of Vishwanath Tripathi. Consequently the Investigating Officer could not know that the injured was in Swaroop Rani Medical Hospital. The statement of Vishwanath Tripathi, therefore, that he was told at the police station that the injured had been taken to Swaroop Rani Medical Hospital, cannot be believed. There is another reason also to disbelieve this statement. When the injured was brought to the Medical College Hospital, the Doctor had endorsed at the bed head ticket that the patient was not fit for making a dying declaration. The time of admission was 8.30 p. m. on 10-5-1975. It is significant that when on 10-5-1975 according to the Investigating Officer he recorded the statement of the deceased, the Doctor was not called for his opinion as to whether the injured was in a fit Medical condition to make statement. There is no reason why in the Hospital itself the Investigating Officer did not care to call the attending Doctor to satisfy himself that the injured was capable of making a dying declaration. There is no reason why in the Hospital itself the Investigating Officer did not care to call the attending Doctor to satisfy himself that the injured was capable of making a dying declaration. In the case of Munna Raja v. The State of Madhya Pradesh, AIR 1976 SC 2199 the practice of recording dying declaration by the Investigating Officer himself without requisitioning services of Magistrate was condemned. Consequently when at 8.30 p. m. in the previous night the condition of the injured was such that dying declaration could not be recorded, the statement of the Investigating Officer that in the next morning a few hours before the death of Sibtain Akhtar he was in a fit condition to make dying declaration, cannot be believed. The dying declaration alleged to have been recorded by the Investigating Officer under Section 161, CrPC in such suspicious circumstances cannot be acted upon and the learned Additional Sessions Judge was justified in rejecting the same. 6. Learned counsel for the prosecution has referred to the judgment of the learned Additional Sessions Judge in detail to argue that the occurrence took place in broad day light in a crowded market place, and, therefore, the injured Sibtain Akhtar who died subsequently could not have failed to notice the assailants. It is also argued that as the injured was immediately brought to his house and had met his father there, in all probability he must have told to his father about the assailants and all facts and circumstances resulting in the assault made on him. It was, therefore, argued that the Additional Sessions Judge was Justified in placing reliance on an uncorroborated dying declaration made by the deceased to his father which has reflected in the first information report lodged by his father in the presence of the deceased. Before discussing this argument, a few points may be mentioned. There is no hard and fast rule as to when a dying declaration should be accepted. Each case has to be decided in the light of the surrounding circumstances. After taking the evidence and the surrounding circumstances into consideration if the court is satisfied that the statement is true, such a dying declaration, notwithstanding that there is no corroboration, can be the basis of conviction. Each case has to be decided in the light of the surrounding circumstances. After taking the evidence and the surrounding circumstances into consideration if the court is satisfied that the statement is true, such a dying declaration, notwithstanding that there is no corroboration, can be the basis of conviction. But before such a conclusion is drawn, the court must be satisfied that there is nothing in the evidence of the surrounding circumstances to raise suspicion as to the credibility of the dying declaration. 7. In Khushal Rao v. State of Bombay, AIR 1958 SC 22 the Supreme Court has laid down as under :- " It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence ; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, Stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties." 8. The same principle was emphasised in Kusa v. State of Orissa, AIR 1980 SC 559 , and it was held : "............if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration." In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. 9. In Harbans Singh v. The State of Punjab, AIR 1962 SC 439 , the Hon'ble Supreme Court has held : "But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities." 10. Before the intrinsic value of the statement said to have been made by the deceased to his father Akhtar Husain, is considered, a few facts may be mentioned. The reliability of the statement depends on the condition of the injured when he reached the house soon after the, occurrence which took place at about 4 30 P.M. on 9-5-1975. As mentioned earlier, at about 8.30 P.M., i.e., about four hours after the occurrence Sibtain Akhtar was not in a fit condition to make any statement. The reliability of the statement depends on the condition of the injured when he reached the house soon after the, occurrence which took place at about 4 30 P.M. on 9-5-1975. As mentioned earlier, at about 8.30 P.M., i.e., about four hours after the occurrence Sibtain Akhtar was not in a fit condition to make any statement. It is significant that though injured Sibtain Akhtar was present at the police station when the report was lodged yet he did not utter a word. According to Akhtar Husain he had written the report himself at the house in the presence of the injured and had brought the same to the police station. This report does not mention that the facts had been narrated or that a statement had been made by the injured to his father on the basis of which a report was lodged. There is only the statement of Akhtar Husain a highly interested witness in support of the prosecution case that a statement was made by the injured at the house. Secondly, it has been held above that the Investigating Officer had not recorded the statement of the injured in the Hospital. It follows, therefore, that Akhtar Husain was also not interrogated by the Investigating Officer in the morning of 10th May, 1975. Therefore, at the earliest opportunity Akhtar Husain did not take up a case that such statement was made by his son at his house. 11. Thirdly, the medical evidence also discredits the testimony of Akhtar Husain. The medical report shows that vital organs of the injured were affected by knife blows suffered by the deceased. The post-mortem report shows that pleura, walls of the ribs as well as left lung were punctured. The thoracic cavity was full of coagulated blood. In such a condition it can hardly be believed that the deceased soon after the occurrence would have been able to give a coherent version of the incident as is evident from the first information report. The thoracic cavity was full of coagulated blood. In such a condition it can hardly be believed that the deceased soon after the occurrence would have been able to give a coherent version of the incident as is evident from the first information report. In this connection I may refer to the case of Darshan Singh v. State of Punjab, AIR 1983 Supreme Court 554, wherein the Hon'ble Supreme Court has held : "If the vital organs of Sohan Singh were "completely smashed" it is impossible to believe that he was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. True, he was quite near his Creator on the morning of the 30th, dangerously so indeed, and we may accept that his mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges. But, Sohan Singh was too ill to entertain any thoughts, good or bad, and he could not possibly have been in a position to make any kind of intelligible statement. Therefore, his dying declaration cannot be relied upon for any purpose and has to be excluded from consideration. When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it." 12. Fourthly, a dying declaration can be relied when it records what the deceased himself had said about the circumstances and the events leading to his death. If there are circumstances in the case which show that the deceased might have been prompted by his friends or neighbours in making the statement, there is always a probability of substitution or addition and such a dying declaration cannot be wholly relied upon. In this connection reference may be made to the case of Rasheed Beg v. State of Madhya Pradesh, AIR 1974 SC 332 , which lays down that a dying declaration recorded in suspicious circumstances should not be acted upon without corroborative evidence. In this connection reference may be made to the case of Rasheed Beg v. State of Madhya Pradesh, AIR 1974 SC 332 , which lays down that a dying declaration recorded in suspicious circumstances should not be acted upon without corroborative evidence. Where in the circumstances of the case it is not impossible that there was discussion amongst the people who were around the deceased as to who could be the assailants, the dying, declaration suffers from infirmity as it cannot be said that it records what the deceased himself wanted to say. In this case Akhtar Husain PW 1 has stated that the entire incident was narrated to him by his son and by those who had come with him to his house (vide paragraph 3 of the statement). From the place of the incident Sibtain Akhtar was taken to his house by Zaheer Hasan PW 2 and Bashir Hasan PW 3. Both of them have stated that they had supported the injured while taking him to his house. Under these circumstances it is difficult to find out as to what part of the incident was narrated by the injured to his father and what part was told by the persons who had carried him to his house. Consequently the circumstances under which such a statement was made, are not fully explained and are suspicious and when the relations of Akhtar Husain, and other neighbours were present the probability that no statement was made by the injured and that the first information report contains only a tutored version as narrated by these two witnesses whose presence has not been established, cannot be ruled out. Lastly the alleged statement as stated by Akhtar Husain PW 1 also suffers from material contradiction. The presence of Zaheer Hasan PW 2 and Bashir Hasan PW 3 has not been established. Moreover, according to Akhtar Husain, he was told about the incident of 7-5-1975 that at 4 P.M. the appellants had threatened the injured that in case he continue his tuition he would be met with dire consequences. But no specific mention of this incident has been made in the first information report. Only a vague allegation was made that the appellants had threatened the injured for having continued his tuition. 13. But no specific mention of this incident has been made in the first information report. Only a vague allegation was made that the appellants had threatened the injured for having continued his tuition. 13. In a case of a verbal dying declaration it will not be safe to place reliance and the same cannot be acted upon without sufficient corroboration unless the oral evidence produced by the prosecution proves the words actually uttered by the deceased. If on the contrary, the evidence shows that there are suspicious circumstances under which the statement was made, the probability that the other persons present at that time had added or altered the sequence of events leading to the assault, cannot be ruled out. 14. The learned Additional District and Sessions Judge, Allahabad, was, therefore, not justified in placing reliance on the aforesaid dying declaration. In the result, the appeal succeeds and is allowed. The order of conviction and sentence, dated 11-3-1978, passed by Vth Additional District and Sessions Judge, Allahabad is set aside. The appellants are acquitted of the offences with which they were charged. They are on bail by the order, dated 14-3-1978, passed by Hon'ble Mohd. Hamid Husain, J. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed.