Munnawar & Ors vs State Of U.P

Munnawar & Ors. .......Appellant (s)

Versus

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

JUDGMENT

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, 2

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 3

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 4

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 5

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. 6

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 7

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 8

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 9

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, 10

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, 11

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: 12

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. 13

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