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2018 DIGILAW 746 (RAJ)

Rafiq v. State of Rajasthan

2018-03-13

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT AND ORDER : Mohammad Rafiq, J. This appeal seeks to challenge the judgment of the Court of Sessions, Kota dated 30.06.1988, whereby the accused-appellant Rafiq was convicted for offence u/s.302 IPC and sentenced to life imprisonment. 2. Facts of the case, shron off unnecessary details, are that a parcha bayan of Mohammad Rafiq @ Haddi (Ex.P17) was recorded by Ram Gopal (PW11), the Assistant Sub-Inspector of Police in Government Hospital, Kota at 9.30 pm on 16.04.1986, wherein he alleged that at 8.15 pm on that day, while he was reading a novel under the light of street pole at dusherra maidan, suddenly Rafiq S/o Abdul Mazid and his brothers Dabli and Altaf came there in an auto rickshaw. Rafiq was holding a jug full of acid. He came from the side of Rang Manch. After parking the auto rickshaw at some distance, Rafiq came from behind and poured the jug full of acid over him and then all three of them ran away. He while crying for help, ran towards Kishorpura wherefrom he was taken in an auto rickshaw to the hospital. The acid was poured over his head and whole of body. At that time, Buddha @ Bashir and Mittu @ Abdul Karim resident of Kishorpura, Kota were also present there, who had seen the incident. Since the acid had fallen in both his eyes, he could not mark signatures. The Assistant Sub-Inspector of Police, therefore, obtained his thumb impression. 3. On the basis of aforesaid parcha bayan, a regular first information report was chalked out for offence u/s.307 and 326 IPC and investigation commenced. Since condition of the injured was quite serious, his dying declaration (Ex.P12) was also recorded on the same day by the Executive Magistrate Shri Rameshwar Dayal Meena (PW8) at 10.45 pm. In the meantime, his statement under Section 161 Cr.P.C. (Ex.P20) was recorded by the Investigating Officer also on the same day. The injured Mohammad Rafiq succumbed to his injuries in the morning of 24.04.1986. Police then added the offence of Section 302 IPC to the FIR. Charge sheet against the accused was filed u/s.302 IPC and against co-accused Mohammad Rashid @ Dabli and Altaf Mohammad for offence u/s.302/34 IPC. The accused-appellant denied the charges and claimed to be tried. The prosecution produced 15 witnesses and exhibited 29 documents. However, the defence did not produce any witness, but exhibited four documents. Charge sheet against the accused was filed u/s.302 IPC and against co-accused Mohammad Rashid @ Dabli and Altaf Mohammad for offence u/s.302/34 IPC. The accused-appellant denied the charges and claimed to be tried. The prosecution produced 15 witnesses and exhibited 29 documents. However, the defence did not produce any witness, but exhibited four documents. The accused-appellant in his examination u/s.313 Cr.P.C. alleged false implication. The learned Court of Sessions on conclusion of the trial, acquitted co-accused Mohammad Rashid @ Dabli and Altaf Mohammad for the aforesaid charges, however, convicted the accused-appellant in the manner as indicated above. Hence this appeal. 4. Shri Ravi Kasliwal, learned counsel for the accused-appellant has argued that according to Abdul Karim (PW2), he gave telephonic information to Gumanpura Police Station immediately after the incident and the police reached the place of occurrence half an hour thereafter. Ram Gopal (PW11) , who recorded the parcha bayan (Ex.P17) on the basis of which FIR (Ex.P23) was registered, had also earlier recorded information in the rojnamcha at police chowky, Kishorpura, copy of which (rojnamcha) has not been produced on record and has been deliberately withheld. It was this information, which ought to be treated as first information report, rather than recording of the FIR on the basis of parcha bayan. Shiv Dutt Sharma (PW15) also admitted that he too on receiving such information reached the place of occurrence. No entry thereabout appears to have been made by him in the rojnamcha. It is thus evident that all these information’s were deliberately withheld so as to prevent the genesis of the incident coming on record. Therefore, an adverse inference should be drawn against the prosecution that had the rojnamcha been brought on record, it would have gone against it. 5. Shri Ravi Kasliwal argued that there are, in fact, three dying declarations in the present case. The first being the parcha bayan (Ex.P17) recorded at 9.13 pm, on the basis of which FIR (Ex.P23) was recorded at 10.00 pm; the second dying declaration was the statement of the deceased recorded u/s.161 Cr.P.C. (Ex.P20) by the Investigating Officer Ram Gopal (PW11), who also admitted that SHO also arrived at the scene of occurrence and the third one was the dying declaration recorded by Rameshwar Dayal Meena (PW8), the Executive Magistrate. All these recorded dying declarations are wholly unreliable inasmuch as it cannot be believed that a person having extensive burn injuries upto 60%, would be in a position to give three repeated dying declarations in a span of two hours. Dying declaration becomes doubtful because Ram Gopal (PW11), who recorded the dying declaration has stated that injured Mohammad Rafiq was in a fit condition to give statement, but when it was put to him that Doctor had told that he had given a sedative injection to the injured, therefore, he was not in a position to give statement, this witness denied the suggestion. However, the Executive Magistrate Rameshwar Dayal Meena (PW8) in cross examination admitted that when he went to the hospital, he found the injured Rafiq in an unconscious state and that he had woken him up and then recorded his statement. It took about half an hour to record the complete statement and in between, he would become unconscious and had to be again awakened. This is further corroborated from the statement of Dr. C.M. Srivastava (PW12), who in the bed head ticket of the deceased (Ex.D3) mentioned that after deceased was brought to the hospital at 8.55 pm on 16.4.1986, he was administered fortwin injection. When a specific question was put to Dr. C.M. Srivastava as to the effect of such injection, he stated that in the normal course, a patient would become unconscious within five minutes and such unconsciousness may subsists for as long as six hours. Even Dr. Narendra Mehta (PW10) has also stated that when he saw the deceased in seriously injured condition, he was not in a position to speak and that it was mentioned in bed head ticket (Ex.D3) that when he was admitted, he was administered fortwin injection. Learned counsel therefore submitted that all the dying declarations are fabricated documents and cannot be relied for sustaining conviction of the accused-appellant. In support of his argument, learned counsel has relied on judgement of the Supreme Court in J. Ramulu vs. State of A.P., (2008) 4 RajLW 2958 (SC) and judgement of this Court in Smt. Kalawati vs. State of Rajasthan, (1993) Criminal Law Reporter 798. 6. In support of his argument, learned counsel has relied on judgement of the Supreme Court in J. Ramulu vs. State of A.P., (2008) 4 RajLW 2958 (SC) and judgement of this Court in Smt. Kalawati vs. State of Rajasthan, (1993) Criminal Law Reporter 798. 6. Shri Ravi Kasliwal, learned counsel argued that the learned trial court has relied on Ex.P20, the requisition given by the SHO to Medical Officer in charge of the M.B.S.H. Hospital, Kota to give the fitness certificate, on which the concerned Doctor gave the fitness certificate at 10.15 pm on 16th April, but no such Doctor has been produced, nor his name was known and no one has identified his signatures, which are not even legible. No witness has proved this document (Ex.P20) and, therefore, this also strengthens the case of the defence that deceased was not in a fit state to give statement. As regards the eye witnesses Bashir Mohd. (PW1) and Abdul Karim (PW2) , learned counsel argued that both these witnesses are planted witnesses and they actually did not witness the incident and reached the place of occurrence after the incident was over. Their testimony cannot be believed also because they had been having inimical relations with the appellant and were facing trial on the charge of throwing acid on the appellant himself in a criminal case in the same Court. Mohd. Hussain (PW6) rules out the presence of Bashir, who was working in a hotel and preparing the tea for the accused-appellant at the relevant time. Similarly, presence of Abdul Karim at the place of incident is also doubtful. Mohd. Hussain (PW6) has stated that when injured reached hotel, he did not disclose to any of the persons as to who had thrown acid on him. As such, it can be inferred that accused-appellant has been falsely implicated at the instance of Bashir and Abdul Karim, who had enmity with him. As against this, Abdul Karim (PW2) has stated that Bashir was with him and they both had gone for a walk and while passing by the place of occurrence, they noticed the incident. If Bashir was working in the hotel as stated by Mohd. Hussain (PW6), he could not possibly accompany Abdul Karim for a walk. This clearly shows that these two witnesses were planted by the prosecution as eye witnesses, but in fact they are not eye witnesses. 7. If Bashir was working in the hotel as stated by Mohd. Hussain (PW6), he could not possibly accompany Abdul Karim for a walk. This clearly shows that these two witnesses were planted by the prosecution as eye witnesses, but in fact they are not eye witnesses. 7. Shri Ravi Kasliwal, learned counsel argued that implicating appellant in the present case was result of mistaken identity as there were three persons by the name of Rafiq residing in the same Ward of Kishorpura in which the accused-appellant was residing. Banwari Lal (PW9), the Home Guard has stated that he was witness of recovery of jug and bottle from the house of the accused, but when he was asked to identify the accused-appellant in the Court, he failed to do so. Moreover, the information u/s.27 of the Evidence Act allegedly given by the accused led to the recovery of only a bottle vide memo Ex.P28. Recovery of a jug has been shown by the police vide memo Ex.P15 from an open place. Learned counsel argued that Bashir Mohd. (PW1), Abdul Karim (PW2), Mohd. Hussain (PW6) and Shabbir (PW7) were closely related to the deceased. They are highly interested witnesses, therefore, their testimony cannot be relied for convicting the accused-appellant for the alleged offence. 8. Learned counsel argued that while Bashir Mohd. (PW1) has stated that all the three accused after the incident ran away in the tempo, Abdul Karim (PW2) has contrarily stated that they ran on foot towards CAD chowraha (crossing). The intention of the appellant in throwing the acid over the deceased from a distance could never have been to commit his murder. At the maximum, his intention could be to disfigure his face as he himself was a victim of an acid attack by the accused party in which Bashir Mohd. (PW1) and Abdul Karim (PW2) were facing trial. The deceased did not die because of the acid attack, but because he did not timely get proper treatment. As per the testimony of Dr. Narendra Mehta (PW10) , who first of all medically examined the deceased in a seriously injured condition, has stated that his pulse was about 10 and blood pressure was 100/80 M.M. of mercury. His injury report was Ex.P16, which shows that his initial parameters were quite good. Similarly, Dr. C.M. Srivastava (PW12) has stated that deceased only had burns upto 60%. His injury report was Ex.P16, which shows that his initial parameters were quite good. Similarly, Dr. C.M. Srivastava (PW12) has stated that deceased only had burns upto 60%. Had he been given proper treatment, the possibility of his life being saved was quite high. Thus, primary cause of the death of the deceased was not acid burn injuries, but was shock on account of peripheral circulatory failure due to burn injuries and for the reason of proper treatment not being given to him. The accused-appellant, therefore, cannot be attributed the intention of committing murder, although knowledge can be attributed to him that he knew that injury that he caused was likely to result in death of deceased. His offence would not be culpable homicide amounting to murder, but would rather culpable homicide not amounting to murder and therefore punishable under Section 304 Part-II of IPC. It is argued that accused at the time of incident was aged 20 years and now that he was on bail pending trial and also his conviction has remained suspended during the pendency of this appeal, this Court may take a lenient view of the matter. Learned counsel in support of his arguments has relied on judgements of this Court in Gautam vs. State of Rajasthan, (1992) Criminal Law Reporter 344 and Radha Kant vs. State of Rajasthan, (2006) Supp RajLW 62. 9. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and submitted that cumulative reading of the statement of Ram Gopal (PW11), who recorded the parcha bayan and also statement of deceased u/s.161 Cr.P.C. as well as dying declaration recorded by Rameshwar Dayal Meena, Executive Magistrate (PW8), who despite their extensive cross examination remained unshaken, have been proved to be genuine and bona-fide documents. There is no contradiction in the three dying declarations, rather each one of them corroborate one another, which make them cogent and trustworthy. All the dying declarations inspire the confidence. Learned trial court therefore rightly convicted the accused-appellant for the alleged offence. The learned trial court in paras 9 to 19 of the judgement has extensively and elaborately discussed and rejected several objections of the defence regarding dying declaration. All the dying declarations inspire the confidence. Learned trial court therefore rightly convicted the accused-appellant for the alleged offence. The learned trial court in paras 9 to 19 of the judgement has extensively and elaborately discussed and rejected several objections of the defence regarding dying declaration. It is argued that the huge quantity of acid that was poured over the vital parts of the body of the deceased proves the criminal mens rea of the accused person, as a result of which, the deceased succumbed to injuries three days after the incident. The intention to commit murder of the deceased can safely be inferred from the circumstances. Apart from the dying declarations, Bashir Mohd. (PW1) and Abdul Karim (PW2) have both appeared as eye witnesses and proved the incident. These two witnesses watched the incident from a close distance. Presence of these two witnesses is shown in the parcha bayan (Ex.P17), statement of deceased u/s.161 Cr.P.C. (Ex.P20) and dying declaration (Ex.P12). The learned trial court has discussed about the credibility of their testimony in para 22 to 25 of the judgement and has rather recorded the finding that their testimony provides corroboration to the dying declaration. 10. Learned Public Prosecutor argued that Dr. C.M. Srivastav (PW12), conducted the postmortem and gave the opinion that the cause of death was shock on account of peripheral circulatory failure. Despite his statement that fortwin injection would bring about unconsciousness, Dr. Narendra Mehta (PW10) has clearly stated that injection of Fortwin would have soothing effect in reducing the pain. Apart from this, he also had given injection of coromin and oxygen and, therefore, it cannot be said that the deceased was unconscious and was not in a position to give statement. 11. Learned Public Prosecutor also submitted that as per the information given by the accused under Section 27 of the Evidence Act, a bottle and jug containing acid were recovered respectively vide memo Ex.P28 and Ex.P15. Although Banwari Lal (PW9) has to some extent not supported the case of prosecution, but he to the extent of recovery, has fully supported the case of prosecution. The recovery of a novel, "chappal" and "bushirt" from the place of occurrence was made vide Ex.P3, of which Mohammad Yusuf (PW4) and Mohd. Hussain were attesting witnesses. Although Banwari Lal (PW9) has to some extent not supported the case of prosecution, but he to the extent of recovery, has fully supported the case of prosecution. The recovery of a novel, "chappal" and "bushirt" from the place of occurrence was made vide Ex.P3, of which Mohammad Yusuf (PW4) and Mohd. Hussain were attesting witnesses. Learned Public Prosecutor argued that a solitary dying declaration, if it inspires confidence, can alone form the basis for conviction even if the fitness certificate has not been obtained from the Doctor. Learned Public Prosecutor in support of his arguments has relied on the judgement of the Supreme Court in Shama vs. State of Haryana, (2017) 11 SCC 535 , judgement of this Court in Kalu & Ors. vs. State of Rajasthan, 2014 4 WLC (Raj) 474, Bariyam Singh vs. State of Rajasthan, (2014) 4 WLC (Raj) 680, Mukesh vs. State, 2012 1 WLC(Raj) 767 and judgement of Punjab and Haryana High Court in Dr. A.G. Bhagwat vs. U.T. Chandigarh, (1989) CriLJ 214. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. At the outset, we may make it clear that the fact that accused was on bail pending trial and his conviction has remained suspended during the pendency of this appeal for as long as 30 years would be wholly inconsequential to our decision as to the correctness of the finding of conviction recorded by the learned trial court. We in deciding the appeal would be guided by the principles applicable to the appreciation of evidence in the scope of appeal as this Court while considering challenge to the judgement in appeal u/s.374 Cr.P.C., being the court of first appeal, can re-appreciate the entire evidence to arrive at its own conclusion on the same material. Now since this appeal is against the judgement of conviction, this Court has to also find out, whether on the basis of evidence available on record, the learned trial court was justified in recording the conviction of the accused appellant for the offence of murder. The parcha bayan of the deceased, which was recorded at earliest point of time i.e. at 9.43 pm on 16.4.1986, has given out the first version of the deceased wherein he alleged that on that day, around 8.15 pm, he was reading a novel in the street light, near dusshera maidan. The parcha bayan of the deceased, which was recorded at earliest point of time i.e. at 9.43 pm on 16.4.1986, has given out the first version of the deceased wherein he alleged that on that day, around 8.15 pm, he was reading a novel in the street light, near dusshera maidan. At that time, the accused-appellant Rafiq along with his brothers Dabli @ Altaf came there in an auto rickshaw. Rafiq was carrying a jug full of acid. He came from the side of Rang Manch, which was at his back. He came nearer to him and poured the acid over his body. Then all three of them ran away. He (deceased) while crying for help, went towards Kishorpura, wherefrom he was taken to hospital in an auto rickshaw. The parcha bayan (Ex.P17) of deceased Rafiq was recorded by Ram Goyal (PW11), who has stated that he had also recorded statement of injured Rafiq under Section 161 Cr.P.C., which was Ex.P20. In cross examination, he further stated that he did not mention the time. He denied the suggestion that before he took the statement, the injection was administered to injured and he became unconscious. He recorded the parcha bayan at 9.30 pm. He did not indicate the time of recording the statement u/s.161 Cr.P.C, but he gave the requisition Ex.P20A to the duty Doctor to obtain fitness certificate for recording dying declaration of the injured. Doctor gave the fitness certificate in his handwriting at 10.15 pm. It is thereafter that the dying declaration was recorded. This dying declaration is also available on record as Ex.P12. Reading of the dying declaration along with the earlier two statements of the deceased fairly show that there is striking similarity between parcha bayan as also the first statement and between the first statement and the second statement. In all three of them, allegations against the accused-appellant is that he was carrying a plastic jug in his hand, which was full of acid and that accused poured the acid over the body of deceased and then ran away. The learned trial court on analysis of evidence of three dying declarations and the statement of two eye witnesses i.e. Bashir Mohd. (PW1) and Abdul Karim (PW2) did not accept the case of the prosecution to the extent of two co-accused namely; Mohammad Rashid @ Dabli and Altaf Mohammad and recorded their acquittal with reasons. The learned trial court on analysis of evidence of three dying declarations and the statement of two eye witnesses i.e. Bashir Mohd. (PW1) and Abdul Karim (PW2) did not accept the case of the prosecution to the extent of two co-accused namely; Mohammad Rashid @ Dabli and Altaf Mohammad and recorded their acquittal with reasons. However, at the same time, the learned trial court has extensively dealt with as many as all the ten objections, which are raised against the reliability of the dying declaration, which would be evident from para nos.9 to 19 of the judgement and found the charges proved against the accused-appellant. However, at the same time, the learned trial court has extensively dealt with as many as all the ten objections, which are raised against the reliability of the dying declaration, which would be evident from para nos.9 to 19 of the judgement and found the charges proved against the accused-appellant. The learned trial court relied on the judgment of the Supreme Court in Khushal Das vs. State of Bombay, (1958) AIR (Supreme Court) 22 in which it was held 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 stand 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 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, for example, whether there was sufficient light if the crime was committed at night; 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 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. "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. 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 inherent weakness of a dying declaration as a piece of evidences 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, particular dying declaration was not free from the infirmities." 14. The learned trial court has dealt with as many as ten objections raised by the defence. The first objection was that neither Ram Gopal, ASI, (PW11) nor Executive Magistrate Rameshwar Dayal Meena (PW8) before recording statement of injured, obtained the fitness certificate as to his physical and mental fitness to give the statement. The trial court relied on various precedents of the Supreme Court and this Court and held that on the facts of the case, the requisition (Ex.P20A) given by the SHO to Medical Officer-in-charge of the hospital for obtaining the fitness certificate itself contained the fact of fitness certificate given by the Doctor at 10.15 pm. It is therefore that the Executive Magistrate has recorded the statement of deceased, which process continued upto 10.45 pm and has also noted the statement of Executive Magistrate Rameshwar Dayal Meena (PW8) to the effect that on his query, the injured Mohammad Rafiq told him that he was in full senses. With regard to second objection about fortwin injection administered to the injured Mohammad Rafiq as per the bed head ticket (Ex.D3) and statement of Dr. Narendra Mehta (PW10), the learned trial court noted and, in our view rightly, that as far as Dr. With regard to second objection about fortwin injection administered to the injured Mohammad Rafiq as per the bed head ticket (Ex.D3) and statement of Dr. Narendra Mehta (PW10), the learned trial court noted and, in our view rightly, that as far as Dr. C.M. Srivastava was concerned, he merely conducted the postmortem of the deceased, but Dr. Narendra Mehta was the treating Doctor, who has mentioned the purpose of giving fortwin injection is not to make the patient unconscious, but to give soothing effect so as to relieve him from pain. The learned trial court has carefully read the statement of Executive Magistrate Rameshwar Dayal Meena (PW8) in cross examination. When we again read that statement, we find that he has stated that no medicine was given to the injured Mohammad Rafiq in his presence. His statement that when he went to the hospital, deceased was unconscious and he woke him up, has to be read in the perspective that a person, who was unconscious, cannot be woken up, although a person who is sleeping or is half slept, can be woken up. This is what this witness has intended to convey because he in the subsequent part of the statement has also stated that in between the accused would become unconscious and when he wake him up, he again woke up. He rather clarified this at the conclusion of the statement when enquired from him (deceased) whether he was fully conscious, the injured Mohammad Rafiq has stated that he was fully conscious. The statement of Rameshwar Dayal, the Executive Magistrate (PW8) completed the recording of the statement 10.45 pm appears to have been improbable, given the fact that the parcha bayan was recorded at 9.30 pm, this objection was rightly rejected because the incident took place around 8.15 pm and the deceased in seriously injured condition was removed to hospital whereas as per the bed head ticket (Ex.D3) , he was admitted on 8.55 pm and parcha bayan was recorded at 9.30 pm; the requisition was given to the Medical Officer by the SHO to obtain the fitness certificate at 10.15 pm and recording of the one page statement soon after was completed at 10.45. The sequence of the events thus does not in any manner create any doubt about its genuineness. 15. The sequence of the events thus does not in any manner create any doubt about its genuineness. 15. The fourth objection which the learned trial court rejected was that the dying declaration was not recorded in question answer form. There is no requirement in law that all the dying declarations should be in question-answer form and this issue has been set at rest by number of judgements of this Court as also of the Supreme Court. The further objection that the Executive Magistrate Rameshwar Dayal did not mention in the dying declaration that injured Mohammad Rafiq told him that he was fully conscious, whereas the fact is that this was so mentioned by the Executive Magistrate at the close of the statement. Further contention that there were contradictions in dying declaration (Ex.P12) and the parcha bayan (Ex.P17) as to who brought deceased to the hospital, this is indeed a minor discrepancy and does not in any manner affect the credibility of the dying declaration. Contention that earlier report that was received by the police was the telephonic information, which it had entered in the rojnamcha and still copy of the rojnamcha was not placed on record as per Abdul Karim (PW2) and, therefore, the FIR registered on the basis of parcha bayan would be hit by Section 162 Cr.P.C., is noted to be rejected. Merely because SHO/ASI on receiving the information, reached the place of occurrence, but before that, the injured had already been taken to the hospital and they followed him to the hospital where he recorded his parcha bayan, does not mean that investigation has actually been carried out during this interregnum by the police. The investigation started only after the parcha bayan of deceased in seriously injured condition was recorded and the regular first information report was registered on that basis. 16. The objection that Bashir Mohd. (PW1), Abdul Karim (PW2), Mohd. Hussain (PW6) and Shabbir (PW7) being closely related to the deceased are highly interested and their testimony becomes doubtful cannot be sustained in law. Merely because some of the witnesses are related to deceased, does not make them less competent to depose as witnesses, if they had actually seen the incident. In fact, law by now is well settled that a relative witness would be rather interested in seeing that the real culprit get punished. Merely because some of the witnesses are related to deceased, does not make them less competent to depose as witnesses, if they had actually seen the incident. In fact, law by now is well settled that a relative witness would be rather interested in seeing that the real culprit get punished. The Supreme Court in a recent case of in Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 , reiterating the earlier judgement in Mohd. Ishaque vs. State of W.B, (2013) 14 SCC 581 has taken the view that testimony of interested witnesses are of grave importance and weight-age and no man would be willing to spare real culprit and frame innocent person. 17. Bashir Mohd. (PW1) has supported the case of the prosecution and has consistently stated that while they were walking near dusshera maidan, a tempo suddenly came from C.A.D. chowraha and stopped near the place of occurrence. Accused alighted from that tempo. He had a jug in his hand, which was having acid and he poured the acid over the deceased, who at that time was reading a novel sitting on the place of Gol Chowraha. They watched the incident from about 50 steps and all three of them ran away in the tempo. The injured was crying for help. Abdul Karim (PW2) has also stated that accused-appellant Rafiq had a jug of acid, which he poured over the head of the deceased and then all three accused ran away towards CAD crossing on foot. Contention that Abdul Karim in his statement stated accused ran away in auto rickshaw and Bashir Mohd. (PW1) has stated that accused ran away on foot, does not come any weight as it has been clarified by Abdul Karim (PW2) in cross examination that upto tempo the accused ran on foot and thereafter ran away in the tempo. Testimony of these two witnesses is further corroborated by dying declaration of the deceased. Mohd. Idris (PW3) has appeared in witness box to state that their statement u/s.161 Cr.P.C. was recorded by the police on the very next day of incident i.e. 17th April. The defence could not point out any serious or major contradiction between their two versions as none of them were confronted with their previous statements. Mohd. Idris (PW3) has appeared in witness box to state that their statement u/s.161 Cr.P.C. was recorded by the police on the very next day of incident i.e. 17th April. The defence could not point out any serious or major contradiction between their two versions as none of them were confronted with their previous statements. The fact that these witnesses were accused in the criminal case of acid attack on the accused-appellant, also could not be substantiated by evidence in defence before the learned trial court. 18. Mohd. Hussain (PW6) has stated that he was taking tea round 8.15 pm in the hotel of Shabbir in Kishorpura. A huge crowd had assembled there and he saw Rafiq @ Haddi (deceased) lying on the ground in injured condition as somebody had thrown acid over him. Then he along with Shabbir and two more persons took him to Gumanpura Police Station in auto rickshaw, wherefrom 2-3 Constable accompanied them and they all brought him to the hospital. Though, this witness in examination in chief did not own up his statement given to the police (Ex.P10) from 'A' to 'B', but in cross examination he admitted having given this statement that while taking injured Rafiq to a police station, they enquired from him as to who threw acid over him, he stated that when he was reading the novel in the street light, Rafiq along with two others came there in an auto rickshaw and Rafiq threw acid over him. Shabbir (PW7) has also stated that he too was present in the same hotel where the deceased came in serious injured condition. Miththu and Bashir were also following him. Lot of people had assembled there and they took deceased to Gumanpura Police Station wherefrom two Constables accompanied them in the auto rickshaw and he was taken to hospital. The deceased was crying that the accused Rafiq had thrown acid over him. This witness admitted in cross examination that he too was accused in the case of acid attack on accused Rafiq along with Basir and Yusuf. That fact may be true but it does not afford any justification for acid attack on the deceased Rafiq by the accused-appellant. The deceased was crying that the accused Rafiq had thrown acid over him. This witness admitted in cross examination that he too was accused in the case of acid attack on accused Rafiq along with Basir and Yusuf. That fact may be true but it does not afford any justification for acid attack on the deceased Rafiq by the accused-appellant. True it is, that there might be enmity between these three witnesses and the accused, but then the enmity is a double edged sword and can also be used as corroboration for the fact as to why the accused had chosen to attack the deceased also with acid. Therefore, testimony of these witnesses can nonetheless be used to provide corroboration to the dying declaration of the deceased. 19. It is trite law that while considering the dying declaration in a case, the Court has to weigh all the attending circumstances and come to the independent finding whether the dying declaration is properly recorded and whether it is voluntary and truthful and if on careful scrutiny, the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there should be no legal impediment to make it a basis of conviction, even if there is no corroboration. In the present case, however, there is substantial corroborating evidence to support and even independently prove what has been stated by the deceased in his dying declaration. The Supreme Court in Shama, supra, dealing with the question as to when a dying declaration can be relied for convicting accused, has held that one of the principles, which is always to be kept in mind, while examining dying declaration of deceased, is that "a man will not meet his maker with a lie in his mouth." In absence of any kind of infirmity or/and suspicious circumstances surrounding execution of dying declaration, once it is proved in evidence in accordance with law, it can be relied on for convicting accused even in absence of corroborative evidence but with a rule of prudence, that it should be so done with extreme care and caution. 20. 20. Reference may be usefully made also to judgement of the Supreme Court in Sunder Singh vs. State of Uttaranchal, (2010) 10 SCC 611 as regard non-examination of the Doctor, who gave the certificate of fitness. It was held therein that for basing conviction on dying declaration, the same must pass all tests of voluntariness, fit condition of mind of maker of dying declaration, witness not being influenced by any other factors and truthfulness of dying declaration. Though importance of evidence of Doctor as regards fitness of maker to make it cannot be understated, yet there could be cases, where though there is no certification by Doctor, still dying declaration can be accepted. On facts of that case, it was held that instant case belonged to such category and thus non-endorsement of Doctor on dying declaration was inconsequential. Here in the present case, there is, in fact, endorsement made by the Doctor but merely because he could not be produced in witness box, the dying declaration cannot be discarded, which even otherwise proves the guilt of the accused appellant beyond reasonable doubt, as per the requirement of law. 21. The Constitution Bench of the Supreme Court in Laxman vs. State of Maharashtra, (2002) AIR(Supreme Court) 2973, held that absence of certification of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken. 22. What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken. 22. The Supreme Court in Atbir vs. Government of NCT of Delhi, (2010) 9 SCC 1 , while revisiting its previous judgements in Munnu Raja vs. State of M.P., (1976) 3 SCC 104 , Paras Yadav vs. State of Bihar, (1999) 2 SCC 126 , Balbir Singh vs. State of Punjab, (2006) 12 SCC 283 , State of Rajasthan vs. Wakteng, (2007) 14 SCC 550 , Bijoy Das vs. State of W.B, (2008) 4 SCC 511 , Muthu Kutty vs. State, (2005) 9 SCC 113 , Panneerselvam vs. State of T.N., (2008) 17 SCC 190 , culled out the following principles to be kept in view while dealing with a case of dying declaration : "(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration." 23. The Supreme Court in Sudershan Kumar vs. State of Delhi, (1975) 3 SCC 831 was dealing with a case where the accused wanted to marry deceased-Maya Devi, but she declined as he was already married to another women. The accused then threatened her that if she would not marry him, she should either leave Delhi or he would kill her in such a manner that she would have a lingering death. On the particular day, the deceased was lying on her cot with her son aged about one month. Accused came to the room holding a jug containing acid and a bottle. The accused then poured the acid out of the jug on Maya Devi, her son and mother Raj Kumari. They started crying and the accused threw the jug on the cot and placed the bottle on the ground and ran away. Injured Maya Devi was thereafter moved to a private hospital where the Doctors found that Maya Devi had extensive injuries on her person and there were a few streaks and patches of acid burns on the right arm and forearm of her mother. Acid burns were also found on the scalp of the child of injured/deceased. Two days after the incident, injured started having toxaemia and infection of the bums. She was then transferred to Special Burns Unit of another hospital. The Court of Sessions convicted the accused under Section 302 IPC and sentenced him to imprisonment of life, which was confirmed by the High Court. Appellant's contention before the Supreme Court was that he did not intend to kill the deceased, but intended only to disfigure her and, therefore, the offence would fall u/s.304 Part-I or under Section 326 of the Indian Penal Code. Appellant's contention before the Supreme Court was that he did not intend to kill the deceased, but intended only to disfigure her and, therefore, the offence would fall u/s.304 Part-I or under Section 326 of the Indian Penal Code. It was also argued before the Supreme Court that the primary cause of death was not direct result of the injuries but because of developed symptoms of malaena and respiratory failure as the proper treatment was not given to deceased. Repelling all these arguments, the Supreme Court in paras 9 to 16 held as under : "9. In the present case, it is established beyond all reasonable doubt that the accused intended to cause injuries by throwing acid and injuries were caused on the person of Maya Devi. Dr. V.K. Jain, who treated Maya Devi in the City Clinic has stated in his evidence that the injuries suffered by Maya Devi were sufficient collectively, in the ordinary course of nature, to cause death. The opinion of Dr. Jain is corroborated by the evidence of Dr. K.S. Raj Kumar. He said that the burns were to the extent of 35 per cent of the body, that if the bum exceeded 30 per cent, the same would be dangerous to life and that the injuries on Maya Devi were dangerous to life. Dr. S.S. Kaushal who conducted the postmortem examination was of the view that death was due to toxaemia and septisemia from actions of toxine on account of the extensive superficial ulceration of the body caused by some corrosive material. The evidence of these doctors would show that the injuries caused to Maya Devi were of a dangerous character. The fact that Maya Devi lingered for about 12 days would not show that the death was not the direct result of the act of the appellant in throwing acid on her. The medical evidence is clear that 35 per cent of the surface of the body of Maya Devi was burnt as a result of the injuries received by her. "The involvement of one-third to one-half of the superficial surface of the body is likely to end fatally". (see Modi's Medical Jurisprudence and Toxicology, 17th ed., p.196). In suppurative cases, death may occur after five or six weeks or even longer (ibid, p. 198). 10. "The involvement of one-third to one-half of the superficial surface of the body is likely to end fatally". (see Modi's Medical Jurisprudence and Toxicology, 17th ed., p.196). In suppurative cases, death may occur after five or six weeks or even longer (ibid, p. 198). 10. Taylor says that after the fourth day of the injury, "the chief danger to life is the occurrence of sepsis in the burned areas"(see Taylor's Principles and Practice of Medical Jurisprudence, 12th ed., Vol.I, p.331). 11. It was contended for the appellant that death of Maya Devi was not the direct result of the injuries caused by the said burns but was on account of some supervening circumstances not resulting from the injuries and therefore, the appellant could not be held guilty of murder. He relied on the evidence of Dr. (Miss) Nirmala Lakshmi Narain who had stated, on her cross-examination, that the cause of death of Maya Devi was malaena and respiratory failure. Malaena, according to Dr. Jain is nothing but passing of old blood in the stools. The evidence of Dr. S.S. Kaushal who performed the postmortem examination of the dead body is definite. He says : "Death, in my opinion, was due to toxaemia and septicemia from absorption of toxins from extensive superficial ulceration of the body caused by some corrosive material." 12. As already stated, the evidence of Dr. Jain and Dr. Raj Kumar .is also to the effect that the injuries caused on Maya Devi were sufficient in the ordinary course of nature to cause death. The fact that Maya Devi developed symptoms of malaena and respiratory, failure and they also contributed to her death cannot in any way, affect our conclusion that the injuries caused by the acid bums were the direct cause of her death. "Since Curling first drew attention to the occurrence of duodenal ulcers after burns numerous cases have been recorded both in vivo and post-mortem after burns. Petechiae of the stomach and duodenum, often with erosions, occasionally acute ulcers, is a more common post-mortem finding : the condition is due to anoxia from hypotension and stasis. The large bowel may also be involved" (see Taylor's Principles and Practice of Medical Jurisprudence, 12th ed. Vol. I, p. 331). Petechiae of the stomach and duodenum, often with erosions, occasionally acute ulcers, is a more common post-mortem finding : the condition is due to anoxia from hypotension and stasis. The large bowel may also be involved" (see Taylor's Principles and Practice of Medical Jurisprudence, 12th ed. Vol. I, p. 331). Modi, in his Medical Jurisprudence, has stated that burns would cause: "Inflammation of serous membrances and internal organs, such as meningitis, peritonitis, oedema glottidis, pleurisy, bronchitis, broncho-pheumonia, pheumonia, enteritis and periorating ulcer of the duodenum (17th ed. p. 197). 13. Nor is there any substance in the argument that Maya Devi was not given proper treatment and that her death was due to negligence of the doctors who treated her. The evidence shows that immediately after she received the injuries, she was taken to the City clinic and there Dr. Jain treated her. As her condition did not improve, she was removed to the Burns Unit of Safdarjang Hospital. There is no evidence that it was because she did not receive proper treatment that the developed toxaemia and septisemia-Explanation 2 to Section 299 is relevant in this context : "Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by, resorting to proper remedies and skillful treatment the death might have been prevented". 14. The argument of counsel that the accused only intended to disfigure Maya Devi and not to cause her death overlooks the evidence of Raj Kumari that the appellant threatened Maya Devi that if she did not marry him, she will have a lingering death and also the evidence furnished by the dying declaration of Maya Devi that the appellant threatened to kill or disfigure her with acid. 15. The act of the appellant in pouring acid on the body was a pre-planned one and he intended to cause the injury which he actually caused. As the injuries caused by the appellant were sufficient in the ordinary course of nature to cause death, the appellant is guilty of an offence punishable under Section 302 of the Indian Penal Code. 16. In these circumstances, we confirm the conviction and sentence and dismiss the appeal." 24. As the injuries caused by the appellant were sufficient in the ordinary course of nature to cause death, the appellant is guilty of an offence punishable under Section 302 of the Indian Penal Code. 16. In these circumstances, we confirm the conviction and sentence and dismiss the appeal." 24. The Supreme Court in Sri Bhagwan vs. State of Uttar Pradesh, (2013) 12 SCC 137 upheld the conviction of the accused for offence under Sections 302, 326A, 326B IPC for causing murder by acid attack/pouring of acid on the basis of dying declaration of the deceased corroborated by two of the eye witnesses, who immediately took the deceased to the hospital where the police recorded her statement under Section 161 Cr.P.C. The argument before the Supreme Court was that since the deceased had severe burnt injuries, she was incapable of making such statement and, therefore, the alleged dying declaration recorded by the police cannot be true because as per the relevant police regulations, such statement if it were to be treated as dying declaration, should have been recorded in the presence of two respective witnesses in which the signature or mark of the declarant and the witnesses at the foot of the declaration, should have been obtained. The Supreme Court repelling the aforesaid argument held that Section 162 (2) Cr.P.C. carves out an exception to the main Section providing that credence can be given to Section 161 Cr.P.C. statement by leaving it like a declaration under Section 32(1) of the Evidence Act under certain exceptional circumstances. In paras 24 and 25 of the report, their Lordships held as under: "24. In paras 24 and 25 of the report, their Lordships held as under: "24. As far as the implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32 (1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such. 25. Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW-4 of the deceased by applying Section 162 (2), we have no hesitation in holding that the said statement as relied upon by the trial Court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under Section 326 IPC within the shortest time possible within which it could be recorded by PW-4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned counsel for the appellant also stands rejected." 25. In view of above discussion, we do not find any infirmity in the impugned judgement and any merit in this appeal, which is accordingly dismissed. The sentence of accused-appellant was suspended by this Court vide order dated 28.11.1988. He is therefore directed to surrender immediately before the trial court, which will take him into custody and send him to jail to serve out the remaining sentence of imprisonment. In case, the aforesaid accused-appellant does not surrender within one month from the date of receipt of copy of this judgment and order, the trial court shall take necessary steps to take him into custody and send him to jail to serve out the remaining sentence of imprisonment.