Abrar vs State Of U.P

all armed with country made pistols, standing near the door of

the house. Mohd. Ashfaq recognized them in the light of the

torch that he was carrying. Apprehending danger, Mohd.

Ashfaq ran towards his house which was close by, raising an 2

alarm. The accused chased him shouting at each other that

he should be done away with on which Abrar, the appellant

herein, fired at him from the rear. The alarm raised by the

victim attracted Muzur PW-6, Durga Ram PW-7 and one Bissu

to the place of incident and they too saw the shot being fired.

As per the prosecution story, the attack on the victim was on

account of old enmity and litigation between him and the

accused Mukhtar and Abrar. Mohd. Ashfaq was immediately

rushed to the District Hospital, Ghazipur where he was

attended to by Dr. S.N.Pandey PW-8 who was then on

emergency duty. He found multiple gun shot injuries over the

left side of the back in an area 12 cm x 14 cm, 9 in number

measuring 1 cm x 1 cm, though there was no blackening or

tattooing. In the meanwhile, Ram Singh PW-5, Advocate and

Mohd. Ashfaq's junior, reached the hospital at 9.45 p.m. on

getting information of the incident. Mohd. Ashfaq thereafter

dictated a report to him and after it had been signed by him, it

was taken to the Police Station and a FIR under Section 307 of

the IPC was registered by Head Constable Lalta Yadav. A

memo was also received in the Police Station at 10.35 3

p.m. from Dr. S.N.Pandey about Mohd. Ashfaq's admission on

which Sub-Inspector Ram Hit Shukla PW-9 reached the

hospital at 10.50 p.m. and recorded another statement of

Mohd. Ashfaq. A third dying declaration was recorded the

same night by the Tahsildar, Vir Bahudar Prasad PW-2, at

11.50 p.m. after taking a certificate from the Doctor that the

injured was fit to make a statement. Mohd. Ashfaq died the

next day in the hospital at Varanasi and a case under Section

302 of the IPC was thereupon entered against the accused.

The dead body was also subjected to a post-mortem

examination and it revealed much the same injuries as

detected at the time of the medical examination in the District

Hospital, Ghazipur but on the opening of the body the large

and small intestines and the kidneys were found to be

lacerated. The doctor opined that the death had occurred due

to shock and haemorrhage resultant to abdominal injuries.

The accused were, accordingly, arrested and ultimately

brought to trial for an offence punishable under Section

302/34 of the IPC.

4

2. The prosecution in support of its case, relied primarily on

the evidence of Dr. A.K. Dwivedi PW-1, who had conducted the

post-mortem examination, Executive Magistrate-cum-

Tahsildar Vir Bahadur Prasad PW-2, Ram Singh, Advocate,

PW-5, Mujur PW-6 and Durga Ram PW-7, the two eye

witnesses named in the FIR, (but who did not support the

prosecution), Dr. S.N.Pandey PW-8, the doctor of the District

Hospital who had certified as to the mental condition of the

victim at the time of the recording of the dying declaration by

the Tahsildar, and the investigating officer Sub-Inspector Ram

Hit Shukla PW-9. The accused were then questioned under

Section 313 of the Cr.P.C. They pleaded false implication due

to enmity.

3. The trial court observed that as the two eye witnesses

had turned hostile, the case rested exclusively on the three

dying declarations of the deceased in the form of the FIR, the

statement of the deceased recorded by the investigating officer

under Section 161 of the Cr.P.C. and the statement recorded

by the Tahsildar. The trial court held that as there were

several discrepancies inter-se these three statements, they 5

could not be relied upon and accordingly taking the murder as

a blind one, acquitted the accused. The matter was thereafter

taken in appeal by the State Government to the High Court.

The High Court has, by its judgment, which is now impugned

before us, reversed that of the trial court holding that the so

called discrepancies were insignificant that they could occur in

any statement recorded in Court and the discrepancy with

regard to the presence or otherwise of a light which figured in

one statement and did not figure in the other was of little or no

consequence in the facts. The Court then examined the dying

declarations and observed that in so far as accused Mukhtar,

Mateen and Usman was concerned, no direct and positive role

had been assigned to them in the three dying declarations of

the deceased and it was the single shot attributed to Abrar,

the present appellant, which had killed the deceased. The

Court also held that if Mukhtar, Mateen and Usman had also

been carrying country made pistol, they would in normal

circumstances, have used them as well. The Court also

observed that there was no bar in relying only on a part of a

dying declaration as the only test was the test of reliability. 6

The Court observed that the third dying declaration had been

recorded by the Tahsildar after he had taken a certificate from

the doctor that Mohd. Ashfaq was fit to make a statement.

The Court also held that the statement given in the dying

declarations that the deceased was carrying a torch by which

he had been able to identify the accused was to be accepted,

as he was an educated man and would ordinarily be expected

to carry a torch. It was also observed that as the incident had

happened in Ghazipur, which was a District Headquarters,

street lights were also available as was clear from the evidence

as well as the site plan. The High Court, accordingly,

maintained the acquittal of Mukhtar, Mateen and Usman, but

allowed the appeal with respect to Abrar, the appellant herein.

He was, accordingly, sentenced to imprisonment for life under

Section 302 of the IPC.

4. Mr. Quadri, the learned counsel for the appellant has

raised several arguments before us during the course of

hearing. He has pointed out that in the background that the

two eye witnesses had turned hostile and had not supported

the prosecution, the only evidence against the appellant, were 7

the three dying declarations and as these were discrepant in

material particulars, no reliance could be placed on them as

well with the result that there was no evidence against the

appellant. He has also submitted that it would not have been

possible for the deceased to have recognized the four

assailants as there was no evidence to show that he was either

carrying a torch or there was any electric light available at the

site where he had been shot.

5. The learned counsel for the State has, however,

supported the judgment of the High Court by pointing out that

the dying declarations were categorical inasmuch that the four

accused had been named in each one of them and that three

accused who had been acquitted had got the benefit of doubt

only on the ground that no shot had been fired by them. It

has been submitted that there was in any case absolutely no

reason to discard the dying declaration recorded by the

Tahsildar at 11.50 p.m. after he had taken a certificate from

the doctor that the victim's fitness to make a statement.

6. We have heard the learned counsel for the parties very

carefully. It has rightly been pointed out by the learned 8

counsel for the appellant that the entire prosecution story

would depend on the dying declarations. It must be borne in

mind that all three dying declarations, the first one which

formed the basis of the FIR, the second recorded by the ASI as

a statement under Section 161 of the Cr.P.C. and a third

recorded by the Tahsildar are unanimous as all the accused

find mention therein. The High Court, has by way of

abundant caution, already given the benefit to three of the

assailants on the plea, that they, though armed, had not

caused any injury to the deceased. The motive too has also

been established as there appeared to be deep animosity

between the parties and that the accused Abrar, the appellant

had, in fact, appeared as a witness in several cases in which

Mohd. Ashfaq or his son were the accused. It is true that

there are some discrepancies in the dying declarations with

regard to the presence or otherwise of a light or a torch. To

our mind, however, these are so insignificant that they call for

no discussion. It is also clear from the evidence that the

injured had been in great pain and if there were minor

discrepancies inter-se the three dying declarations, they were 9

to be accepted as something normal. The trial court was thus

clearly wrong in rendering a judgment of acquittal solely on

this specious ground. We, particularly, notice that the dying

declaration had recorded by the Tahsildar after the Doctor had

certified the victim as fit to make a statement. The doctor also

appeared in the witness box to support the statement of the

Tahsildar. We are, therefore, of the opinion, that no fault

whatsoever could be found in the dying declarations.

7. The prompt lodging of the FIR is another circumstance in

favour of the prosecution. The incident happened at 9.30 p.m.

on the 3rd of April, 1979 and the FIR was recorded at 10.30

p.m. i.e. within an hour of the incident under Section 307 of

the IPC. We, therefore, find no merit in the appeal. It is,

accordingly, dismissed.

............................J. (HARJIT SINGH BEDI)

.....................

........J. (P. SATHASIVAM)

.............................J. (CHANDRAMAULI KR. PRASAD) 16TH DECEMBER 2010 10

NEW DELHI