Abrar v The State Of Uttar Pradesh
Supreme Court of India

16 December 2010
Criminal Appeal No. 1668 of 2005
The Judgment was delivered by : H.S. Bedi, J.
1.  At about 9.30 p.m. on the 3rd of April, 1979, Mohd. Ashfaq, a practicing Advocate, residing in Mohalla Kapoorpur of Ghazipur town, was returning home after visiting Suhasini Talkies. As he reached near the house of Saeed Khan, he found the four accused, Mukhtar, Abrar, Mateen and Usman, 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 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.
2. 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.
3. 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 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.  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.
5.  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 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.
6. 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.
7. 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. 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.
8. 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.
9.  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 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.
10. 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.
11.  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.
12.  We have heard the learned counsel for the parties very carefully. It has rightly been pointed out by the learned 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.
13. 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.
14. 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 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.
15.  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.
Appeal dismissed


Babu Ram and Others v State of Punjab
Supreme Court of India

5 March 1998
Cr.A. No. 121 of 1991 (From the Judgment and Order Dt. 29 November 1990 of the Punjab and Haryana High Court in Cr. As. Nos. 138-DBA of 1989 and 389-DB of 1988)
The Judgment was delivered by: NANAVATI, J.
1. The three appellants were tried in the Court of Sessions, Bhatinda in Sessions Case No. 73 of 1987 for the offence punishable u/s. 302 read with S. 34 IPC. The charge against them was that Appellant 2-Krishna Devi, the mother-in-law of Santosh Rani, poured kerosene on her and Babu Ram, the father-in-law, threw a lighted matchstick on her and when Santosh Rani was trying to run out of the room, her husband - Rajinder Kumar - Appellant 3 had tried to bolt the door. It was also the prosecution case that all the three had set her on fire because they felt that sufficient dowry was not given to her by her parents.
1.  The defence of appellant-Babu Ram was that he was not in the house at the relevant time as he had already left at about 8.30 a.m. for the shop in which he was working. Krishna Devi's defence was that she was washing clothes in the courtyard of their house and was not present in the room on the first floor where the incident of burning had taken place. The defence of the husband was that he was taking a bath on the ground floor at that time.
2.  The trial court believed the pleas of Babu Ram and Krishna Devi but disbelieved the explanation of Rajinder Kumar. It, therefore, acquitted Babu Ram and Krishna Devi but convicted Rajinder Kumar for the offence punishable u/s. 302 IPC.
3.  Rajinder Kumar filed Criminal Appeal No. 389-DB of 1988 before the High Court challenging his conviction. The State also filed Criminal Appeal No. 138 of 1989 challenging the acquittal of Babu Ram and Krishna Devi. Both the appeals were heard together by the High Court and by a common judgment they were disposed of. The High Court confirmed the conviction of Rajinder Kumar and also set aside the acquittal of Babu Ram and Krishna Devi as it held that both the dying declarations made by Santosh Rani were true and there was no good reason to disbelieve them.
4.  Aggrieved by their conviction, all the appellants have filed this appeal. It was submitted by the learned counsel for the appellants that Santosh Rani could not have made the dying declaration as she could not have been in a fit state of mind as she had received 60% burns and was given an injection of morphine about an hour before her dying declaration was recorded.  However, this contention cannot be accepted in view of the categorical evidence of the doctor who has stated that she was in a fit state of mind when she made the statement. The Judicial Magistrate, who recorded the dying declaration, has also stated that he had enquired from the doctor whether she was in a fit state of mind and after Doctor Garg certified her to be so and finding her fit he had recorded the statement.
5.  We, therefore, see no reason to doubt the genuineness of the dying declaration Ex. PG/1. The second dying declaration Ex. PH was recorded by ASI Jagdish Singh, sometime after the dying declaration Ex. PG/1 was recorded by the Judicial Magistrate. In that dying declaration also, Santosh Rani had given the same version. In fact, it was recorded as the first information report and subsequently treated as dying declaration after she had died. We are, therefore, of the opinion that the High Court was right in relying upon both the dying declarations.
6.  In the two dying declarations, what Santosh Rani had stated was that her mother-in-law had poured kerosene over her and the father-in-law had thrown a lighted matchstick and set her on fire. The only part stated to have been played by the husband was that when she was trying to go out of the room, he had attempted to bolt the door so as to prevent her from going out of the house. Therefore, even though after accepting the two dying declarations as true, it cannot be said with reasonable certainty that the husband was also a party to the commission of the offence. The version of the husband was that at the time of the incident, he was taking a bath on the ground floor.
7. It, therefore, appears that on coming to know that something had happened on the first floor, he went there and seeing her in flames, he had tried to bolt the door with a view to prevent the outsiders from coming to know about the incident. Nothing else was alleged against the husband. The evidence against the husband was thus not sufficient to warrant his conviction u/s. 302 read with S. 34 IPC. This aspect has been overlooked by the High Court.
8.  We, therefore, dismiss the appeal of Babu Ram and Krishna Devi and allow the appeal of Rajinder Kumar. Appellant Rajinder Kumar is acquitted of the charge levelled against him and his bail bonds are ordered to be cancelled. Appellants Babu Ram and Krishna Devi were also released on bail during the pendency of the appeal. Their bail is cancelled and they are ordered to surrender to custody to serve out the remaining part of the sentence.
Appeal partly allowed.


Govindappa and others v State of Karnataka
Supreme Court of India

11  May  2010
Cr.A. No. 1469 of 2008
The Judgment was delivered by: P. Sathasivam, J.
1. This appeal is directed against the final judgment and order dated 04.10.2007 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 2573 of 2006 whereby the High Court partly allowing the appeal acquitted Laxmibai - A-3, the mother of the appellants herein and Bhagirathi-A-5, the grandmother of appellants and affirming the sentence passed by the trial Court convicted A-1, A-2 and A-4, appellants herein, for offences under Section 498-A/34 IPC and Section 302/34 IPC.
2. The facts leading to the present appeal are as follows:
2.1. The deceased - Renuka, was married to appellant No.1 about 10 years prior to the date of the incident. As per the prosecution case, on 10.12.2005, at about 12 noon, the appellants herein, along with their mother and grandmother tried to pour kerosene oil and lit fire on the deceased and because of that she raised hue and cry. On hearing her noise, five neighbours came and requested them not to do so but the accused persons asked them not to interfere in their family matter. Appellant No.3 poured kerosene on the deceased and appellant No.2 set fire in the presence of the neighbours. After pouring kerosene, the accused persons ran away from the house and the neighbours extinguished the fire and covered the deceased with blanket and had taken her immediately to the Government Hospital Bagalkot. At about 2.30 p.m., the Doctor (PW-7) informed the police and the Magistrate (Tehsildar) (PW 12) came to the Hospital at 4.30 p.m. and recorded the dying declaration of the deceased which is filed as Ex. P-9.
The Police Officer came to the hospital after 7 p.m. and taken the statement of the deceased which was written by Govindagowda Patil - PW-11, the neighbour, and FIR was registered at the police station at 7.15 p.m. which is Ex. P-10. The Investigating Officer, PW-17 came to the hospital at 8.30 p.m. and again tried to take the statement of the deceased but she was not in a position to give any statement and at 9.00 p.m., she died. The Inquest Panchnama was prepared at about 11.00 p.m. On 11.12.2005, post-mortem was conducted by the Doctor, PW-7, the report of which is Ex. P-5. The Investigating Officer filed the charge sheet on 23.01.2006. On 26.06.2006, the Fast Track Court, Bagalkot framed the charges against all the five accused persons under Sections 498A, 143, 147, 341, 302 read with S. 149 IPC.
By order dated 03.10.2006, the Fast Track Court, Bagalkot convicted all the five accused for the offence punishable under Sections 498A, 143, 147, 341, 302 read with S. 149 I.P.C. and sentenced them to undergo rigorous imprisonment for two years and also sentenced them to pay a fine of Rs.2000/- each in default, simple imprisonment for three months for the offence punishable under Section 498A read with S. 149 IPC and further convicted them for the offences punishable under Section 302/149 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.10,000/- each in default, simple imprisonment for one year. All of them filed a Criminal Appeal being Appeal No. 2573 of 2006 before the High Court. By order dated 04.10.2007, the High Court by partly allowing the appeal acquitted A-3 and A-5 of all the charges leveled against them and affirming the sentence passed by the trial Court on A-1, A- 2 and A-4 convicted them for the offence punishable under Section 498A/34 IPC and Section 302/34 IPC. Aggrieved by the said order, accused Nos. 1, 2 and 4 have preferred this appeal by way of special leave petition.
3. We have heard Mr. Sanjay Jain, learned counsel for the appellants-accused and Mr. Sanjay R. Hegde, learned counsel for the respondent-State.
4. Points for consideration in this appeal are:
"(i) Whether the Trial Court was justified in convicting the appellants-accused A-1, A-2, and A-4 for offences punishable under Section 498A, read with S. 34 IPC and S. 302 read with S. 34 IPC?
(ii) Whether the sentence imposed upon the appellants-accused is justifiable?
(iii) Whether the High Court is right in confirming the conviction and sentence imposed on the appellants?"
5. In this appeal, we are concerned only with A-1, A-2 and A-4, since the other accused A-3 and A-5 were acquitted by the High Court.
6. Apart from various materials in the form of oral and documentary evidence, the Trial Court accepted the evidence of eye-witnesses, namely, PW-3, PW-4, PW-5, PW-6 as well as Dr. Uma Kant PW-7 who treated Renuka, father of the deceased PW-9, one elderly person of the village PW-10 and Taluk Executive Magistrate PW-12 who had recorded the dying declaration of Renuka. Learned counsel for the appellants-accused pointed out that as per the prosecution, there were five witnesses present at the spot of incident, even before the victim was burnt, but none of them stopped the accused or tried to prevent the incident. He also submitted that the Trial Court and the High Court committed an error in relying upon the dying declaration recorded by PW- 12 since PW-12 has neither taken the certificate from the Doctor nor asked any question to verify the mental condition of the deceased Renuka, particularly, when she suffered 100% burns as shown in the postmortem report.
7. At the foremost, let us verify the evidence of Dr. Uma Kant PW-7 who treated the injured Renuka when she was brought to the hospital. Though, he had stated that injured Renuka had sustained 100% burn injuries, at about 4.45 p.m., according to him, she was in a fit state of mind to give statement. Based on the statement of doctor PW-7, Taluka Executive Magistrate PW-12 recorded her statement in the presence of PW-7. It is further seen that after recording the statement, her left thumb impression was taken on the statement, the doctor PW-7 also subscribed his signature. It is true that in the cross-examination it was elicited that the tongue of the deceased was swollen and protruded and lips were burnt. Though this suggestion has been admitted by PW-7, the fact remains at the time of recording her statement PW-7 was satisfied that Renuka was in a fit condition and in a fit state of mind to make a statement. There is no reason to disbelieve the version of PW-7 who made initial treatment and he was very well present during the entire period of recording the statement (Ex. P-9). We hold that the evidence of PW-7 coupled with PW-12 are acceptable and support the case of the prosecution.
8. Now, let us discuss the other eye-witnesses, first and foremost is PW-3. According to him, he is residing in a house adjacent to the deceased Renuka. He explained that he knew the family members of the appellants and the deceased. He also explained that sister-in-law of the deceased A-4 desired to give her elder daughter in marriage to A-1 and because of that Renuka was being assaulted by the appellants. He deposed that on 10.12.2005 at 12.00 o'clock he heard a crying sound from the house of the appellants. He along with others went to the house of the appellants and they found A-1, A-3 and A-5 holding Renuka. A-2 had a match-box in his hand and A-4 was holding kerosene can. Though he requested not to cause any harm to Renuka, according to him, the accused person were holding Renuka and sister-inlaw (A-4) poured kerosene. He further asserted that after setting fire by pouring kerosene accused A-1 to A-4 ran away from the scene of occurrence. Though, he also implicated A-3 and A-5 in the commission of offence but in the absence of further corroboration, the High Court has rightly acquitted them.
However, there is no reason to disbelieve the evidence of PW-3 insofar as A-1, A-2 and A-4 appellants herein that they were responsible for the cause of the death of Renuka.
9. The next witness is Govindappa PW-4, who witnessed the incident and partly supported the case of the prosecution. He explained how the deceased was humiliated and harassed by the appellants. According to him, this was narrated to him by Renuka during her lifetime and on several occasions she had gone to her native place due to illtreatment meted out to her at the hands of the appellants. He also explained that on 10.12.2005 at about 12.00 o'clock, when he was in his house, he heard cries from the house of the appellants. He rushed to their house and saw in the first floor Renuka was in ablaze. As rightly observed by the High Court, though, PW-4 did not support the entire case of prosecution and he had been treated as hostile witness, his evidence to the extent A-2 and A-4 participating in the commission of offence is proved. To this extent, the High Court has rightly accepted his testimony.
10. The next eye-witness examined by the prosecution is one - Prakash PW-6. He explained how Renuka was humiliated and harassed by the appellants and on the relevant date and time and after hearing the cries he went to the first floor and found A-1, A-2 and A-5 were holding Renuka, A-4 was holding kerosene can and A-2 was holding a matchstick. He further deposed that the accused informed him that it is their family matter and none should interfere. At that time, A-4 poured kerosene on the body of Renuka and A-2 lighted match stick and lit fire to Renuka and immediately all the accused ran away from the scene of occurrence. As observed by the High Court, the evidence of PW-6 shows that A-4 poured kerosene and A-2 lit fire. The above statement of PW-6 finds support from the dying declaration Ex. P-7. His assertion that A-1 was holding Renuka also finds corroboration from the dying declaration Ex. P-9. In other words, the evidence of PW-6 clearly proves the participation of A-1, A-2 and A-4 in the commission of offence.
11. Krishnappa, father of the deceased was examined as PW-9. He explained how his daughter was harassed and humiliated by the appellants. He also explained the desire of A-4 sister-in-law of the deceased to give her elder daughter to A-1. His evidence gets support from the dying declaration Ex. P-9 and to this extent the same is acceptable and rightly relied on by the High Court.
12. An elderly person from the same village had been examined as PW-10 and he also narrated how the deceased Renuka was humiliated and harassed at the instance of the appellants.
13. Other important witness is H.N. Nagaraj, PW-12, Taluka Executive Magistrate. He deposed before the Court that he had recorded the dying declaration of Renuka and the same was recorded after ascertaining her condition from PW-7 Dr. Uma Kant. After noting that Renuka was in a fit state of mind from Dr. Uma Kant PW-7 and she was in a position to make the statement, in the presence of PW-7 he recorded her statement on 10.12.2005 at 4.45 p.m. He denied the suggestion that Renuka was not in a position to make a statement.
14. About dying declaration Ex. P-9, we have already adverted to the evidence of Dr. Uma Kant (PW-7), Government District Hospital Bagalkot. He explained that on 10.12.2005 at 2.20 p.m. injured Renuka w/o Govindappa Macha was brought with history of burns on the same day at 1.00 p.m. and she was admitted in the hospital and treatment was given to her. When Taluka Executive Magistrate (PW-12) came to the hospital at about 4.45 p.m., he enquired about the mental condition of the patient and whether she is capable of giving statement for which PW-7 informed that the patient is in a fit state of mind to give statement.
Accordingly, the statement was recorded in his presence and then Renuka put her left thumb impression on the said statement and both the Doctor and the Magistrate also signed on the said statement. It is true that on the same night at 9.00 p.m. the injured expired due to burn injuries and post-mortem was conducted. On examination of body, he found superficial (epidermal burn) all over the body. Hyperaemic skin, singeing of hair present, burn 100% few small blisters are seen over the face containing serous ferrous fluids, skin is red and hyperaemic, singeing of hair present on head, duramater is leathery, brain is shrunken and yellow. All the internal organs were congested, coal particles are seen in nose, mouth, trachea and esophagus. Found smell of kerosene oil on her body. He is of the opinion that death is due to shock as a result of 100% burn, time since death is within 4 to 24 hours.
Accordingly, he issued the post-mortem report as per Ex. P-5, which bears his signature. PW-7 has also denied the suggestion that the deceased-Renuka was in the semi-coma till the death.
15. Though, it was argued that PW-12 Tahsildar has not obtained the certificate from the Medical Officer regarding condition of the deceased, that itself is not sufficient to discard the dying declaration (Ex. P-9). What is essential required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. The evidence of doctor (PW-7) clearly shows that the deceased was in a sound state of mind while giving the statement before the Tahsildar (PW-12). In such circumstances, we are of the view that such a dying declaration has got due weight in the evidence.
Further, as stated earlier, the doctor has explained that though the deceased Renuka sustained 100% burn injuries, she was in a position to talk. In such circumstances, her statement cannot be rejected on the ground that she sustained severe burn injuries. Normally, the person on the verge of death will not implicate somebody falsely. Even if we accept some contradiction in Ex. P-7 complaint, in the light of Ex. P-9 dying declaration coupled with the evidence of eye-witnesses, there is ample evidence on record to hold that the appellants ill-treated the deceased Renuka and subjected her to cruelty by giving both mental and physical torture and in furtherance of their common intention only to commit the murder of the deceased, poured kerosene and set fire on her who ultimately succumbed to the injuries on the same day in the District Hospital, Bagalkot. In our view, dying declaration (Ex. P-9) fully corroborates the evidence of Doctor and Tahsildar who recorded it.
16. The analysis of the prosecution witnesses, particularly, PW-3, PW-4, PW- 10 elderly person of the village and PW-12 Taluk Executive Magistrate who recorded the dying declaration of Renuka clearly proves the involvement of appellants in the commission of offence as charged and they were rightly awarded sentence of life imprisonment. Though, it was pointed out that there were certain discrepancies, according to us, they all are minimal and it had not affected the case of the prosecution. As discussed earlier, in view of the oral evidence of PW-3, PW-4, PW-6, PW-7, PW-9, PW- 10, PW-12 coupled with dying declaration Ex. P-9, we hold that the prosecution has fully established its case against the appellants and we are in entire agreement with the conclusion arrived by the High Court.
17. In the light of the above discussion, we do not find any merit in the appeal, consequently, the same is dismissed.
Appeal dismissed.


Rukia Begum and others v State Of Karnataka
Supreme Court of India

4 April 2011
CRIMINAL APPEAL NO. 1519 OF 2008 WITH CRIMINAL APPEAL NO. 698 OF 2008 WITH CRIMINAL APPEAL NO. 698 OF 2008
The Judgment was delivered by : Chandramauli Kr. Prasad, J.
1.  Altogether 8 persons were put on trial for commission of the offence under Section 302 and 201 read with Section 34 as also Section 379 of the Indian Penal Code. Accused Jaibunissa died during the trial, whereas accused Rukiya Begum, Nasreen, Mansoor and Mohmmed Ghouse were acquitted of all the charges. However accused Issaq Sait, Nasarath and Mujahid were held guilty of the offence under Section 302 and 201 read with Section 34 of the Indian Penal Code and awarded life imprisonment and seven years imprisonment respectively.
2. State of Karnataka, aggrieved by the acquittal of Rukia Begum Nasreen, Mansoor and Mohammed Ghouse preferred appeal whereas appellant Issaq Sait and Mujahid aggrieved by their conviction and sentence also preferred appeal. State also preferred appeal seeking enhancement of sentence.
3. All the appeals were heard together and the High Court by its common judgment dated 28th of May, 2007 dismissed the appeal preferred by the appellants Issaq Sait and Mujahid.
4. The appeal filed by the State against the acquittal of the accused persons was partly allowed by the High Court and it set aside the acquittal of Rukia Begum, Nasreen and Mohammed Ghouse and convicted them for the offence under Section 302 and 120-B of the Indian Penal Code and sentenced them to imprisonment for life.
5.  Rukia Begum and Nasreen have filed separate appeals whereas Issaq Sait and Mujahid appealed with the leave of the court. In these appeals we are concerned with Rukia Begum, sole appellant in Criminal Appeal No. 1519 of 2008, Nasreen, appellant in Criminal Appeal No. 1808 of 2009 and Issaq Sait and Mujahid, appellants in Criminal Appeal No. 698 of 2008. It is relevant here to state that convict Mohammed Ghouse joined as Appellant No. 2 in the appeal filed by Nasreen and as he failed to surrender, his appeal stood dismissed.
6.  Prosecution commenced on the basis of a written report given by PW-12 Thammaiah to PW-31 G.Jayaraj, the Sub- Inspector of Police in which he disclosed that while he was at his agricultural field near the land of accused Jaibunnisa, his brother-in-law PW-2 Chandrashekar @ Chandru informed him that while he was near Aralikatte, PW-1 Thandavamurthy and appellant Nasreen informed him that the dead bodies of Rasheed Sait and his wife Sabeena Sait were lying in the field.
7. The Sub-Inspector of Police G.Jayaraj came to the place of occurrence and found trace of blood from the place of occurrence to the gate of the deceased and the accused. During the course of investigation appellants Rukiya Begum and Nasreen were arrested and on their disclosure plastic bucket and plastic pot kept in the bathroom were seized.
8. Appellant Issaq Sait was also arrested and his statement led to the recovery of wheel and tyre of the motorcycle belonging to the deceased. Appellant Mujahid surrendered before the Judicial Magistrate and he was taken on police remand for interrogation. During interrogation the statement given by him led to the recovery of the knife. The personal belongings of the deceased Sabeena Begum were also recovered from other accused persons.
9.  According to the prosecution there was strained relationship between the deceased Rasheed Sait on one side and his mother accused Jaibunnisa, sisters i.e. appellants Rukia Begum and Nasreen and husband of the sister on the other side in relation to the ancestral property.
10. The appellants, in fact, had admitted the strained relationship amongst themselves. Further case of the prosecution is that on 9th June, 1995 Rasheed Sait along with his wife Sabeena Begum and daughter Tamanna had gone to Mysore to meet PW-4, Rameeza and reached there at 5.30 P.M. After having meal at her house they left for their home. In order to trap the deceased the accused persons tied coconut leaves obstructing the passage near his house. Rasheed Sait while coming to his house hit against the obstruction and fell from his motorcycle.
11. It is the case of the prosecution that all the appellants herein besides other accused persons attacked Rasheed Sait and his wife Sabeena Begum and caused their death. Prosecution has alleged that in order to shield themselves from punishment the accused persons shifted the dead bodies and dismantled the motorcycle used by the deceased.
12.  Police after investigation submitted chargesheet and the appellants besides four other accused persons, namely, Jaibunnisa, Mansoor, Mohammed Ghouse, and Nasarath @ Musarath @ Nasarathulla Shariff were committed to the Court of Sessions. Appellants denied to have committed any offence and claimed to be tried. There is no eye-witness to the occurrence and the prosecution sought to establish the guilt against all the accused persons, including the appellants by circumstantial evidence.
13. It has brought on record oral evidence as also documentary evidence to prove that there was strained relationship between the deceased and the accused persons in regard to the share in the ancestral property. Presence of blood marks near the house of some appellants was another circumstance relied on by the prosecution to prove the guilt. Recovery of wheel and tyre of the motorcycle of the deceased from appellant Issaq Sait and recovery of knife from appellant Mujahid at their instances was another circumstance which, according to the prosecution pointed towards the guilt of these two appellants. The conduct of these appellants i.e., abscondence immediately after the occurrence was yet another circumstance brought by the prosecution to establish their guilt.
14.  The trial court on the appraisal of the evidence came to the conclusion that motive and recovery of bucket and plastic pot at the instance of the appellants Rukia Begum and Nasreen do not pointedly lead towards their guilt and accordingly acquitted them of all the charges. However, the circumstantial evidence brought and proved by the prosecution, i.e. motive; presence of blood; recoveries and abscondence immediately after the occurrence persuaded the trial court to hold that the circumstantial evidence clearly lead towards the guilt of appellants Issaq Sait and Mujahid and accordingly convicted and sentenced them as above.
15.  We have heard the learned counsel for the appellants as also the State. It has been submitted by the counsel representing appellants Rukia Begum and Nasreen that the circumstantial evidence brought against them do not conclusively point towards their guilt and, therefore, the High Court erred in reversing the well considered judgment of acquittal of the trial court. They point out that the strained relationship between these appellants and their brother Rasheed Sait does not necessarily lead towards the guilt of these appellants. Recovery of day to day articles i.e., bucket and plastic pot also do not point out towards their guilt. It has been pointed out that the High Court while convicting these two appellants has not relied on the recovery. Ms. Anitha Shenoy, however, submits that two sisters, i.e., appellants Rukia Begum and Nasreen had very serious dispute with the deceased in regard to share of property.
16. According to her this is a strong motive to commit the crime.
17.  We have bestowed our consideration to the rival submissions and we are of the opinion that the circumstantial evidence brought against these appellants are not such which lead towards their guilt. As stated earlier, recovery from these appellants itself has been discarded by the High Court. In our opinion motive alone, in the absence of any other circumstantial evidence would not be sufficient to sustain the conviction of these two appellants. It is worthwhile mentioning here that the trial court on appraisal of the evidence came to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt, so far as Rukia Begum and Nasreen are concerned. It is trite that where two views on the evidence are reasonably possible and the trial court has taken a view favouring acquittal, the High Court in an appeal against acquittal should not disturb the same merely on the ground that if it was trying the case, it would have taken an alternative view and convicted the accused.
18. The High court while hearing appeal against the judgment of acquittal is possessed of all the power of appellate court and nothing prevents it to appraise evidence and come to a conclusion different than that of the trial court but while doing so it shall bear in mind that presumption of innocence is further reinforced by acquittal of the accused by the trial court. The view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. There must be compelling and weighty reason for the High Court to come to a conclusion different than that of the trial court. The view taken by the trial court was justified in the facts and circumstances of the case and a possible view and, therefore in our opinion, the High Court erred in setting aside their acquittal.
19.  The case of appellant Issaq Sait and Mujahid in our opinion, however, stands on altogether different footing. The trial court has held them guilty. There is overwhelming evidence to prove beyond all reasonable doubt that they shared the motive with other accused persons. Appellant Issaq Sait during the course of investigation gave statement which led to the recovery of wheel and tyre of the motorcycle belonging to the deceased which was dismantled. It was seized and seizure list was prepared. This recovery has been proved by oral evidence as also the seizure list. Further, the statement given by appellant Mujahid during the course of investigation led to recovery of the knife and it has been proved by PW-25 Jakir Ahamad and seizure memo. These two appellants were not found at the normal place of their work and their abscondence has been proved by PW-7 Ashok Kumar, the Manager of M/s. Habeeb Solvent Extract. In his evidence he has stated that appellant Issaq Sait and appellant Mujahid were working in the factory. He has further stated that Issaq Sait was assigned duty for collection of money due to the company and such a duty was assigned on 9th of June, 1995. PW-33 Govindaraju had also stated that the appellant Issaq Sait, as an employee of M/s. Habeeb Solvent Extract, approached him for collection of money and on 9th of June, 1995 he paid a sum of Rs. 10,000/- to him. PW-7 has further stated in his evidence that during the month of June, 1995 appellant Mujahid left the factory and did not join the duty.
20. From the aforesaid evidence it is clear that the appellants Issaq Sait and Mujahid were employees of M/s. Habeeb Solvent Extract and absconded soon after the incident.
21.  No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established.
22. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else.
23. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.
24. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt.
25. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned.
26.  In the result Criminal Appeal No. 1519 of 2008 filed by Rukia Begum and Criminal Appeal No. 1808 of 2009 preferred by appellant Nasreen are allowed, the impugned judgment of the High Court is set aside.
27. Appellant Rukia Begum is in jail, she be set at liberty forthwith.
Criminal Appeal No. 698 of 2008 stands dismissed.
Appeals disposed of


Koli Chunilal Savji and Another v tate of Gujarat
Supreme Court of India

29 September 1999
Cr. Appeal Nos. 1786 and 1703 of 1996
The Judgment was delivered by: G.B.Pattanaik, J.
1.  These two appeals arise out of Judgment dated 21/24.6.1996 of the High Court of Gujarat at Ahmadabad in Criminal Appeal Nos. 236 and 105 of 1989 and are being disposed of by this common Judgment. The two appellants were tried for having committed an offence under Section 302/34 IPC on the allegation that on 28.6.84 at 4 A.M., while deceased Dhanuben was sleeping on her bed, the two accused persons namely her husband and mother-in-law poured kerosene and set fire with match box. Along with the deceased, her son Ajay was also there and both, the deceased and Ajay were burnt. They were taken to the hospital for treatment.
2.  In the hospital, Police recorded the statement of Dhanuben which was treated as F.I.R. and then after registering the case, investigation started. In the hospital, both Dhanuben and her son Ajay died and as such the accused persons stood charged for offence under Sections 498A and 302/34 of the IPC. Apart from the statement by deceased Dhanuben to PW 14, which was treated as F.I.R., a Magistrate also recorded her statement which was treated as a dying declaration. On scrutiny of the prosecution evidence, the learned Sessions Judge did not rely upon the dying declaration made by the deceased Dhanuben and in the absence of any other evidence to connect the accused appellants with the murder of the deceased, acquitted them of the charge under Section 302/34 IPC.
3.  The learned Sessions Judge however came to the conclusion that the offence under Section 498A has been established beyond reasonable doubt and as such convicted them under the said Section and sentenced them to rigorous imprisonment for two years and imposed a penalty of Rs.250/-, in default, further imprisonment for two months. The State of Gujarat preferred an appeal against the acquittal of the accused persons of the charge under Section 302/34 IPC and the accused persons preferred appeal against their conviction under Section 498A. The High Court by the impugned Judgment set aside the order of acquittal, relying upon the two dying declarations Exh. 45 and Exh. 41 and convicted the appellants of the charge under Section 302/34 IPC and States appeal was allowed.
4.  The appeal filed by the accused persons, assailing their conviction under Section 498A however stood dismissed and the conviction under Section 498A and the sentence passed there under was maintained. It may be stated that while admitting the appeal of the accused persons against their conviction under Section 498A, the High Court had suo motu issued notice as to why the sentence imposed for the offence punishable under Section 498A should not be enhanced. But while disposing of the criminal appeals, the High Court did not think it proper to enhance the sentence and accordingly notice of enhancement stood discharged.
5.  On the basis of the post-mortem report conducted on the dead bodies of Dhanuben and her son Ajay and the evidence of doctor PW9, who conducted the autopsy over the dead bodies, the conclusion is irresistible that both the persons died on account of burn injuries but the defense however raised a contention that the two persons died on account of suicide and the house was set fire by the deceased herself. The prosecution witnesses to whom deceased had made oral dying declaration, implicating the accused persons, did not support the prosecution during trial and, therefore, with the permission of the Court the Public Prosecutor cross- examined them. The High Court accordingly, placed no reliance on their testimony. The High Court however examined the two dying declarations namely Exh.45, recorded by the Sub-Inspector PW14 and the dying declaration Exh.41, recorded by the Magistrate PW12 and came to the conclusion that both these dying declarations are truthful and voluntarily made and, therefore, can safely form the basis of conviction of the accused persons under Section 302/34 IPC.
6. With the aforesaid conclusion the order of acquittal passed by the learned Sessions Judge of the charge under Section 302/34 was set aside and the accused appellants were convicted of the said charge and were sentenced to imprisonment for life. The High Court also relying upon the dying declaration and other materials, further came to the conclusion that the prosecution case, so far as the charge under Section 498A IPC is concerned, has been proved beyond reasonable doubt and, therefore, upheld the conviction and sentence passed thereunder by the learned Sessions Judge.
7.  Mr. Keshwani, the learned counsel appearing for the appellants argued with vehemence that the two dying declarations cannot be relied upon inasmuch as the doctor was not present while the dying declaration was recorded by the Magistrate and further, there is no endorsement by the doctor, indicating the mental condition of the deceased to the effect that she was in a fit condition to make the statement.
8.  The learned counsel also further urged that the doctor himself has not been examined in this case which makes the position worse. Mr. Keshwani also made a submission that the deceased was surrounded by her own relations before the dying declaration was recorded by the Magistrate and as such had sufficient opportunity to be tutored and consequently the dying declaration recorded by the Magistrate becomes vitiated. Mr. Keshwani also submitted that the incident having taken place at 4 A.M. and the dying declaration having been recorded by the Magistrate at 9 A.M., five hours after the occurrence, there has been gross delay which makes the dying declaration doubtful and as such should not have been accepted. Mr. Keshwani lastly submitted that the learned Sessions Judge having recorded an order of acquittal, the same should not have been interfered with by the High Court without justifiable reasons and on this score also the conviction of the appellants under Section 302/34 IPC cannot be sustained.
9.  The learned counsel appearing for the respondent State, on the other hand submitted that the dying declaration which has been relied upon by the High Court in the facts and circumstances, has been rightly held to be truthful and voluntary one and, therefore, in law, can form the sole basis of conviction. She also contended that though endorsement of the doctor and presence of the doctor is ordinarily looked for but merely on that score the dying declaration recorded by the Magistrate cannot be held to be an untruthful one. Besides, the learned counsel submitted that the doctor did make an entry in the Police yadi, indicating that the deceased was in a fit condition to make any statement and it is he, who took the Magistrate to the deceased and non-endorsement by the doctor on the statement recorded by the Magistrate cannot be held to be fatal nor can any doubt arise on that score.
10.  The learned counsel further contended that the power of the High Court against an order of acquittal is the same as against an order of conviction and while setting aside an order of acquittal, it is necessary for the Appellate Court to look at the reasoning given by the trial Judge and be satisfied whether those reasoning are just and proper or not. The reasoning given by the learned Sessions Judge to discard the two dying declarations having been found by the High Court to be wholly unreasonable and, therefore, the High Court was fully entitled to interfere with the conclusion of the learned Sessions Judge and no infirmity can be found out on that score.
11.  Coming to the affirmation of conviction under Section 498A, while Mr. Keshwani, appearing for the accused appellants submitted that on this scanty evidence, the Courts could not have convicted the accused persons of the said charges, the learned counsel for the respondent submitted that both the Courts have analysed the evidence fully and having found that the charge under Section 498A IPC has been proved beyond reasonable doubt, question of interfering with the said conviction does not arise.
12.  In view of the rival submissions made at the Bar, two questions really arise for our consideration. (1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from consideration for the infirmities pointed out by Mr. Keshwani, appearing for the appellants. (2) Whether the High Court exceeded its jurisdiction in interfering with the order of acquittal, recorded by the learned Sessions Judge.
13.  Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keshwani, that in the absence of doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr. Keshwani in this connection relies upon the decision of this Court in the case of Maniram vs. State of Madhya Pradesh, AIR 1994 SC 840. 1993 Indlaw SC 149313. In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of aforesaid infirmity and interfered with the Judgment of the High Court. But the aforesaid requirements are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question.
14.  In Ravi Chander and Ors. vs. State of Punjab, 1998 (9) SCC 303 1996 Indlaw SC 1655, this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur vs. State of Punjab 1994(4) SCALE 447, this Court has examined the same question and held:
15. As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the Dying Declaration itself but on the application, that would not render the Dying Declaration suspicious in any manner.
16.  In view of the aforesaid decisions of this Court, we are unable to accept the submission of Mr. Keshwani that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. Shukla, she told the doctor on duty that she is required to take the statement of Dhanuben and she showed the doctor the Police yadi.
17.  The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on Police yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the Police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon.
18.  In this particular case, the police also took the statement of the deceased which was treated as F.I.R., and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt. Consequently, we have no hesitation in rejecting the first submission of Mr. Keshwani.
19.  In this connection, it may be appropriate for us to notice an ancillary argument of Mr. Keshwani that there has been an inordinate delay on the part of the Magistrate to record the dying declaration and, therefore, the same should not be accepted. As we find from the records, the incident took place at 4 A.M. and the Magistrate recorded the dying declaration at 9 A.M., in our opinion, it cannot be said that there has been an inordinate delay in recording the statement of the deceased. Mr. Keshwani had also urged that when the Magistrate recorded the dying declaration, the deceased had been surrounded by her relations and, therefore, it can be assumed that the deceased had the opportunity of being tutored. But we fail to understand how this argument is advanced inasmuch as there is no iota of evidence that by the time the Executive Magistrate went, the deceased was surrounded by any of her relations. No doubt the Magistrate herself has said that three or four persons were there near the deceased whom she asked to go out but that they were the relations of the deceased, there is no material on record. We, therefore, have no hesitation to reject the said submission of Mr. Keshwani.
20.  Coming now to the second question, the law is well settled that the power of the High Court while sitting in appeal against an order of acquittal is the same, as the power while sitting in appeal against the conviction and the High Court, therefore would be fully entitled to re-appreciate the materials on record and in coming to its own conclusion. The only compulsion on the part of the Appellate Court is to bear in mind the reasons advanced by the learned Sessions Judge, while acquitting the accused and indicate as to why those reasons cannot be accepted. This being the parameter for exercise of power while entertaining an appeal against the order of acquittal and in view of our conclusion and finding that the two dying declarations were truthful ones and voluntarily made, we see no infirmity with the impugned judgment of the High Court in setting aside an order of acquittal. On going through the Judgment of the Sessions Judge, we find that the learned Sessions Judge erroneously excluded the two dying declarations from purview of consideration and therefore, the High Court was justified in interfering with the order of acquittal. If the order of acquittal is based upon the grounds not sustainable, the Appellate Court would be justified in interfering with the said order of acquittal. Consequently, we are of the opinion that in the facts and circumstances of the present case, the High Court was fully justified in interfering with the order of acquittal recorded by the Sessions Judge and as such the conviction of the appellant under Section 302/34 IPC is unassailable. Coming to the question of conviction under Section 498A IPC, as has been stated earlier, the learned Sessions Judge also convicted the appellant of the said charge and the High Court on re-appreciation, has affirmed the conviction and sentence passed there under and nothing has been brought to our notice to take a contrary view. In the net result, therefore, these appeals fail and are dismissed.
Appeal dismissed.


Rambai v State of Chattisgarh
Supreme Court of India

4 October 2002
Appeal (crl.) 1247 of 2001
The Judgment was delivered by : Santosh Hegde, J.
1.  Being aggrieved by the judgment of the High Court of Judicature Chhattisgarh made in Criminal Appeal No. 1873 of 2000 whereby the High Court dismissed the appeal of the appellant filed against the judgment of the Sessions Judge, Raipur, Madhya Pradesh in Sessions Trial No.412 of 1998 the appellant has preferred this appeal before us.
2.  Brief facts necessary for the disposal of this appeal are as follows:
3. That the appellant and deceased Vidya Bai who is her sister-in-law used to have frequent quarrels. Consequent to which it is stated on 8th of October, 1998 at about 2.30 p.m. the appellant poured kerosene oil on Vidya Bai and burnt her. It is the prosecution case that Vidya Bai on being so burnt ran out of the house when her husband Balram came to her rescue and tried to extinguish the fire, in this process it is stated even he suffered some burn injuries on his hands. Thereafter, it is the prosecution case that Vidya Bai was taken to the hospital where PW.17, Dr. Kiran Aggrawal examined her injuries and found that Vidya Bai suffered almost about 85% burns on her body.
4. Though the police were informed of this incident, they were unable to record any statement of Vidya Bai since she was not in a position to do so. It is the further case of the prosecution that on 12.10.1998 when she regained consciousness a statement was recorded as per Ex.P/9 by PW.11, G.S. Gaharwar which was treated as the first information for registering a crime. It is also stated that on the very same day as per Ex.D/4 the said witness PW.11 also recorded another dying declaration. It is the further case of the prosecution that later in the evening of 12th October, 1998 at about 4.30 p.m. on a request made by the police to the Tehsildar/Executive Magistrate to record the dying declaration of Vidya Bai, PW.12, K.K. Bakshi, came to the hospital and recorded Ex.P/11 another dying declaration of the said Vidya Bai. It is also on the record that said Vidya Bai died around 4.30 a.m. on 13th October, 1998, therefore, a case which had originally registered under Section 307 IPC was re- registered under Section 302 IPC. The appellant who was arrested under Section 307 IPC and thereafter was charged under Section 302 IPC and was tried for the said offence. The prosecution in support of its case examined 19 witnesses, while defence in support of its case examined three witnesses.
5. In her 313 Cr.P.C. statement the appellant took the specific defence that at the time of the mishap she was preparing incense sticks and came to know about burns suffered by the deceased she also went to extinguish the fire and she had not poured any kerosene oil and set Vidya Bai on fire. She also contended that at the instance of the mother of the deceased in her dying declaration deceased had falsely implicated her. As stated above the trial court found the appellant guilty of the offence charged and sentenced she to undergo imprisonment for life under section 302 IPC and the High Court has confirmed the said sentence.
6.  Shri Seeraj Bagga, learned counsel appearing as amicus curiae in this case contended that in the instant case there are three dying declarations all made on 12th October, 1998 while the prosecution has relied upon the dying declaration Ex.P/11 that is recorded on that day at about 4.30 p.m. by PW.12. He contended that all the earlier efforts of the prosecution to get a dying declaration recorded failed because of the report of the doctors wherein the said doctors had stated that the injured was not in a fit state to make a dying declaration. Further, he contends that PW.19, Dr. Ashok Sharma who was not the doctor in-charge of the treatment of the deceased for the first time gave a certificate that the deceased was in a fit state to make a statement.
7. In the said backdrop, such a certificate of the doctor PW.19 ought not to be relied upon. In this context, he pointed out that on the very same day i.e. on 10th October, 1998 at about 12.15 p.m. as also at 4.30 p.m. two attempts made by the prosecution investigating agency to record the dying declaration of the deceased failed, because then the doctors had certified that she was not in a fit condition to make statement. He also contended that PW.11 had failed to ensure before the recording of the said dying declaration that the deceased was in a fit mental condition to make the said statement.
8. In the absence of any such certificate by recording authority it is contended that the dying declaration cannot be relied upon. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313)2002 Indlaw SC 1921 wherein overruling the judgment of this Court in Laxmi(Smt.) vs. Om Prakash and others (2001 (6) SCC 118)2001 Indlaw SC 20085, it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declaring to make such dying declaration. If the person recording such dying declaration is satisfied that the declaring is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declaring to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19,
9. Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission to the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 19 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below.
10.  Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resoled from his statement made before the investigating officer have held that it is not safe to rely upon DW.2. In such a situation we are unable to take a contra view from the one taken by the courts below. Having carefully examined the judgments of the courts below and material on record, we are satisfied that the courts below have correctly come to the conclusion as to the guilt of the appellant. In the said view of the matter the appeal fails and the same is dismissed.
11.  We place on record our appreciation for the assistance rendered by Shri Seeraj Bagga, Advocate, as amicus curiae in this case and direct the payment for a sum of Rs.750/- to him as fee.
12.  We also permit Shri Prakash Shrivastava, Advocate for respondent to file his Vakalatnama within four weeks from today.
Appeal dismissed


Amresh Tiwari v Lalta Prasad Dubey and Another
Supreme Court of India

11 April 2000
Special Leave Petition (crl.) 3858 of 1999
The Judgment was delivered by : S. N. Variava, J.
Leave granted.
1. This appeal is against an Order dated 8th September, 1999. By this Order the High Court has, in exercise of powers under Section 482 of the Criminal Procedure Code, set aside an Order dt. 09 June 1999, passed by the sub-divisional Magistrate. The SDM had dropped/discontinued the proceedings under Section 145 of the Criminal Procedure Code.
Briefly stated the facts are as follows :
2. In respect of the property concerned the 1st Respondent had a dispute with Sharda Prasad and Shiv Kumar. The 1st Respondent filed Civil Suit No. 280 of 1990 in the Court of Civil Judge, Gyanpur on 10 October, 1990. It is not denied that this Suit was for declaration of title, possession and for injunction. On 10 October 1990, itself an application for ad interim Order was made. An Order to maintain status quo, as on that date, was passed by the Court.
3. According to the Appellant, on 10th October, 1990 itself the said Sharda Prasad and Shiv Kumar had executed a Sale Deed in favour of Smt. Prem Kali, who was the mother of the Appellant. According to the Appellant possession of the property was delivered to Smt. Prem Kali on the same day. In Suit No. 280 of 1990, on an application made by Smt. Prem Kali, she was impleaded as a party defendant. In that Suit the pleadings are complete. Issues have been framed. The suit is pending trial.
4. While this Suit was pending the S.O. Police Station, Aurai made a report to the S.D.M., Gyanpur stating that there was a dispute regarding possession of land likely to cause a breach of peace within his jurisdiction and for initiating of proceeding under Section 145 Criminal Procedure Code. On the basis of this report, the learned S.D.M. passed preliminary Order under Section 145(1) Criminal Procedure Code. Pursuant to this preliminary Order the Appellant's mother appeared and filed a written statement stating that there was no dispute likely to cause breach of peace regarding possession of the said property. It was pointed out that the civil Suit was pending in the court of civil jurisdiction and an Order directing maintenance of status quo had already been passed. The 1st Respondent also filed a written statement pursuant to the preliminary Order. The 1st Respondent claimed that the property which formed the subject matter of the civil Suit was different from the property in respect of which proceedings under Section 145 Criminal Procedure Code had been adopted.
5. The Appellant thereafter made an Application that the proceedings under Section 145 Criminal Procedure Code be dropped as a civil Suit in respect of the same property was pending. That Application was rejected by the S.D.M. on 13 September 1991. Against the Order dated 13 September 1991, a Criminal Revision was filed before the Additional Session Judge, Gyanpur. The said Criminal Revision was rejected by an Order dated 16 March 1993. A Review Application was also dismissed by the Additional Session Judge on 11 May 1993. Thereafter the proceedings under Section 145 Criminal Procedure Code were resumed. Statements of parties were recorded. In the course of her statement the 1st Respondent, inter alia, stated as under :
"The Civil Suit which has been filed regarding this land which is Suit No. 280 of 1990. In respect of the disputed land which is the subject matter of the suit an order for maintain status-quo has been passed...... The Civil Suit, I have filed in the Civil Court is for dispossession of Amrit Lal and Prem Kali from the disputed land. This suit has been filed for obtaining stay order against Sharda Prasad."
6. Thus the 1st Respondent admitted that the civil Suit was in respect of this land i.e. the land in respect of which proceedings under Section 145 Criminal Procedure Code had been adopted. The 1st Respondent also admits that the Suit is for possession and for stay. Very fairly it is conceded before us that the land in respect of which the proceedings under Section 145 Criminal Procedure Code was adopted were part of the properties in respect of which Suit No. 280 of 1990 had been filed.
7. After the statement of the parties had been recorded, an Application was made by the Appellant that the proceedings under Section 145 Criminal Procedure Code may be discontinued/dropped in view of the pending civil Suit in which an order of maintenance of status quo had already been passed. By an Order dated 9th June, 1999, the S.D.M. dropped the proceedings under Section 145 Criminal Procedure Code by concluding that there was no propriety in continuing the proceedings under Section 145 Criminal Procedure Code when the civil Court was in seisin of the matter and an Order for maintaining status quo had already been passed.
8. Against the Order dated 09 June 1991, the 1st Respondent filed Criminal Revision No. 1230 of 1999 before the Allahabad High Court. The Criminal Revision Application was allowed by the learned single Judge, who set aside the Order dated 09 June 1999 and remanded the matter back to the trial Court for resuming the proceeding under Section 145 Criminal Procedure Code. The only ground on which the learned single Judge has set aside the Order dated 09 June 1999 is that earlier an Application for dropping the proceedings under Section 145 Criminal Procedure Code had been made and dismissed and that the Revision against that Order had also been dismissed by the Sessions Court by the Order dated 11 May 1993. It was held that the Order 11 May 1993 had become final between the parties and was thus binding. It was held that in view of that Order the trial court could not have accepted the contention and should have rejected the Application for dropping the proceedings. It was held that in view of that Order the only option left to the Magistrate was to decide the proceedings under Section 145 Criminal Procedure Code between the parties on merit. It is this Order which is assailed in this Appeal.
9. We have heard the parties at length. In our view the High Court has committed an error in setting aside the Order of the Magistrate on the basis that the earlier Order was final and binding. The earlier Orders were interim Orders. They were passed before any evidence or statements had been recorded. Those Orders were passed only on the basis of the contentions of the parties. At that stage the 1st Respondent had contended that the civil proceedings did not relate to the same properties in respect of which the proceedings under Section 145 Criminal Procedure Code were adopted. Thereafter statements were recorded in the Section 145 proceedings. In her statement the 1st Respondent admitted that proceedings under Section 145 Criminal Procedure Code were in respect of property which formed the subject-matter of the civil Suit and in respect of which an Order for maintenance of status quo had been passed by the civil Court. The S.D.M. was bound to take a decision afresh based on the statements before him. It is settled law that interim Orders, even though they may have been confirmed by the higher Courts, never bind and do not prevent passing of contrary Order at the stage of final hearing. The learned single Judge of the High Court appears to have lost sight of this.
10. The learned single Judge also failed to appreciate that the earlier Orders were passed on the footing that the civil proceedings related to different properties and were between different parties. Subsequently, when it became clear that the civil proceedings were in respect of the same properties and between the same parties even the factual position had changed. For that reason also the earlier Order would not be binding.
11. The question then is whether there is any infirmity in the Order of the S.D.M. discontinuing the proceedings under Section 145 Criminal Procedure Code. The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant vs. State of U.P. & Ors., reported in 1985 (1) S.C.C. 427 1984 Indlaw SC 15. In this case it has been held as follows :
"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue."
12. We are unable to accept the submission that the principles laid down in Ram Sumers' case 1984 Indlaw SC 15 would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers' case 1984 Indlaw SC 15 is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.
13. Reliance has been placed on the case of Jhummamal alias Devandas versus State of Madhya Pradesh & Ors., reported in 1988 (4) S.C.C. 452 1988 Indlaw SC 572. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 Criminal Procedure Code had resulted in a concluded order.
14. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded Order under Section 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumers' case 1984 Indlaw SC 15 (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate.
15. In this view of the matter the appeal is allowed. The impugned Order is set aside. In our view, the S.D.M. was right in discontinuing the proceedings under Section 145 Criminal Procedure Code. The Order passed by the S.D.M. on 9th of June, 1999 is restored.
16. Before we part it must be mentioned that in the impugned Order the High Court has passed strictures against the S.D.M. The High Court has also directed the District Magistrate to transfer the proceedings from the S.D.M. who passed the Order dated 09 June 1991. In our view the strictures were uncalled for. We hope that in future the High Court would not pass such strictures. Two views are always possible. Merely because the High Court takes a different view is no ground for passing strictures against the lower court.
Petition allowed.


Ram Sumer Puri Mahant v State of Uttar Pradesh and Others
Supreme Court of India

17 December 1984
Cr.A. No. ...... of 1984, (Arising out of S.L.P. (Cri) No. 1369 of 1982)
The Order of the Court is as follows:
Special Leave granted.
1.  Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order direction initiation of proceedings under S. 145, Criminal P.C.('Code' for short), and attachment of the property at the instance of respondents 2-5. Indisputably, in respect of the very property there was a suit for possession and injunction being Title Suit No. 87/75 filed in the Court of the Civil Judge at Ballia wherein the question of title was gone into and by judgment dated February 28, 1981, the said suit was dismissed. The appellant was the defendant in that suit.
2.   According to the appellant close relations of respondents 2-5 were the plaintiffs and we gather from the counter affidavit filed in this Court that an appeal has been carried from the decree of the Civil Judge and the same is still pending disposal before the appellate court. The assertion made in the petition for Special Leave to the effect that respondents 2 to 5 are close relations has not been seriously challenged in the counter affidavit. When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under S. 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
3.  We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the Magistrate by which the proceeding under S. 145 if the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.
Appeal allowed.


Bhima @ Bhimarao Sida Kamble and Others v State of Maharashtra
Supreme Court of India

27 August 2002
Appeal (Crl.) 418 of 1994
The Judgment was delivered by : S. Rajendra Babu, J.
22 persons were charged by the Court of Session, Solapur on the allegation that they formed an unlawful assembly with the common object of murdering vithal and causing injury to Bhimrao, the brother of Vithal, and to cause damage to the 'wada' at Dambaldar. After trial most of them stood convicted under Section 302 read with Section 149 and Section 440 read with Section 149 of the Indian Penal Code [IPC] and accused Nos. 14, 18 and 19 were also charged and convicted under Section 323 read with Section 34 IPC for having caused simple hurt to Bhimrao. On appeal, the High Court acquitted some more accused but confirmed the conviction and sentence in regard to others. Accused Nos. 1 to 3 and 14 to 19 are in appeal before us. We are not concerned with other accused.
1.  This Court granted leave by an order made on 18-7-1994 confining the same only to the question of the nature of offences disclosed. When the learned Senior Advocate Shri A. T.M. Rangaramanujam pitched his arguments a little too high to contend that the accused are entitled to plain acquittal, we made it clear to him that when the trial court and the High Court on the basis of evidence have come to a conclusion one way or the other of their involvement in the incident in respect of which they were charged, we cannot re-appreciate the matter and come to a different conclusion. Thereafter, he confined his arguments only to the question of offence arising out of proved facts.
2.  After analysing the evidence of PWs I5 and 16 and other material on record the learned Sessions Judge held that accused No. 1 went to the 'vasti' of Vithal along with some of the accused accused and was following Vithal upto his 'wada', that when Vithal and Bhimrao were inside he charged on the servant to scare him away as he was pleading to protect the members of his master's family. He held that he shared the common object to murder Vithal, though the circumstances in the case may not suggest that he was sharing the common object to murder Bhimrao but to cause him hurt.
3.  As regards accused No. 2, from the testimony of PW 16 and other evidence on record, the learned Judge held that when the deceased-Vithal arrived at the Bus Stand after release on bail, he was seen following Vithal; that he went inside the 'wada' scaling the wall; that his conduct certainly suggested that he was taking active part as a member of the unlawful assembly to find out where the victims were hiding and how to reach them, as otherwise there was no reason to scale the wall and go inside the 'wade'.
4.  As regards accused No. 3, the learned Judge on analysing evidence of PWs 12 and 16 along with other material on record held that he was present at the S. T. stand and he was following Vithal near the 'wada' and when Vithal and Bhimrao were inside, he pelted stones at Suman. These circumstances were sufficient to hold that he was the member of the unlawful assembly and was sharing its common object except in respect of the injury caused to Bhimrao.
5.  As regards accused Nos. 14, 18 and 19, the learned Judge relied on evidence of PWs 9 and 10 for causing injuries to Bhimrao and from evidence of PWs 14 and 16 held that accused Nos. 18 and 19 were at the S. T. bus stand and accused No. 14 joined them in search of Vithal. They came following Vithal, went inside the 'wada' beat Bhimrao after taking him outside from where he was hiding. These acts prove their sharing of the common object to murder Vithal and their common intention to assault Bhimrao. The learned Sessions Judge also took the view that the target of attack was not Bhimrao but Vithal inasmuch as Bhimrao happened to be accidentally with Vithal and accused Nos. 14, 18 and 19 beat him inside the 'wada'. This act of theirs was not in furtherance of the common object of the assembly, but this was in furtherance of the common intention to do so in order to put Bhimrao in fear from coming ahead to save his brother Vithal. Therefore, as regards accused Nos. 14, 18 and 19, the learned Judge concluded that there is 'common object in respect of Vithal and 'common intention' in respect of Bhimrao.
6.  In. this case, the learned Sessions Judge noticed that there was no specific evidence as to the nature of weapons with which they were armed. What was proved in the whole case was that accused Nos. 14, 18 and 19 personally dealt blows with sticks and the allegation that accused No. 3 wielded axe was not proved. There was no evidence to show that at the time of incident they were armed with axes. Axes produced by accused Nos. 1,2, 18 and 19 were not shown to have been used in causing hurt. On that basis, the learned Sessions Judge held that accused Nos. 14, 18 and 19 cannot be found to be the members of unlawful assembly armed with deadly weapons. In appeal, the High Court also examined the evidence with reference to each one of the appellants and affirmed the findings recorded by the trial court.
7.  When a large number of persons were armed only with sticks of pelted stones which they could find anywhere either near the fields or on their way and it was not established as to who specifically attacked whom, it is not clear as to whether the intention was to cause death. It is more probable that the intention was to give hard beating only. Even if we accept the case that the deceased-Vithal was pursued right upto the 'wada' the object of the mob was to teach him a stern lesson who is said to be a bully in the village. In the circumstances and in the light of evidence, we must hold that the reasonable inference to be drawn is that the common object was to commit offences under Section 323 and Section 325 read with Section 147/149 IPC and not under section 302 read with Section 149 IPC. The trial court as well as High Court appear to have lost sight of crucial aspects.
8. Therefore, we think that-these accused who are under appeal before us deserve to be acquitted of the charges under Section 302 read with Section 149 IPC, while they stand convicted as rightly held by the trial court, under Section 147, Section 323 and Section 325 IPC. The sentences which they have already undergone should be treated as sufficient punishment and they may be released forthwith if they are still in jail. Orders made by the trial court as confirmed by the High Court will stand modified accordingly. The appeal is allowed limited to the above extent.
Appeal allowed


Ram Lal v Delhi Administration
Supreme Court of India

5 September 1972
Cr.A. No. 190 of 1970.
The Judgment was delivered by: PALEKAR, J.
1.  The appellant Ram Lal has been convicted by the Delhi High Court for the murder of one Har Lal under Section 302, I.P.C. and sentenced to imprisonment for life. Special leave is limited to the question of the applicability of Section 302, I.P.C.
2.  Appellant Ram Lal along with three others, namely, Lekh Ram, Tek Chand and Mohar Singh were committed to the Court of Session on two separate charges. One charge was under Section 302, read with Section 34, I.P.C. for the alleged murder of deceased Har Lal, and the other charge was under Section 325, read with Section 34, I.P.C. for voluntarily causing grievous hurt to one Budh Ram. One more charge was added in the court of Session so far as Ram Lal is concerned. The Additional Sessions judge noticed that the lathi blow which proved to fatal was given by Ram Lal and hence a substantive charge under Section 302, I.P.C. was framed against the appellant.
3.  After trial, Mohar Singh was acquitted. The appellant Ram Lal, Lekh Ram and Tek Chand were convicted u/s. 302 read with Section 34, I.P.C. and sentenced to undergo life imprisonment for the murder of Har Lal. The appellant and Tek Chand were also convicted under Section 325, read with Section 34, for the grievous injuries caused to Budh Ram and sentenced to 2 1/2 years rigorous imprisonment. The sentences were made to run concurrently. In appeal to the High Court the appellant Ram Lal alone was convicted for the offence under Section 302, I.P.C. for the murder of Har Lal whereas Tek Chand and Lekh Ram were convicted in respect of that assault under Section 325, read with 34. The sentence passed on Tek Chand and Lekh Ram was reduced to 2 1/2 years rigorous imprisonment.
4.  The appellant Ram Lal has alone come to this court and we are concerned only with the question whether the prosecution has been able to prove on the facts as disclosed and accepted by the High Court an offence under Section 302, I.P.C. against him. The High Court came to the conclusion, so far as the attack on deceased Har Lal is concerned, that he was assaulted with lathis or sticks by the appellant, Tek Chand and Lekh Ram. It also came to the conclusion that their common intention was not to cause death but only grievous hurt. On that finding the conviction of all the three could have been only under Section 325, read with S. 34. The reason, however, why Ram Lal, the appellant, was convicted under Section 302, I.P.C. was the High Court held that though all three had the common intention of causing grievous hurt, it was appellant Ram Lal who gave the blow on the head of the deceased with his lathi which proved fatal and hence the appellant was liable to be convicted under Section 302, I.P.C. According to the High Court though Tek Chand and Lekh Ram had attacked the deceased they had not given any blow to the deceased on his head.
5.  The whole case seems to have proceeded on the assumption that only one blow was given on the head and that was given by appellant Ram Lal. The Additional Sessions Judge while framing the additional charge against the appellant for substantive offence under Section 302, I.P.C. mentioned that the evidence as recorded before the Committing Court disclosed that the appellant had given a fatal lathi stick blow on the head of Har Lal. The charge against him also as framed by him stated that the appellant had intentionally caused the death "by causing lathi blow" on the head of the deceased. The High Court also assumed that only one lathi blow was given on the head of the deceased and that blow proved fatal. Now all these assumption are obviously not correct.
6.  Dr. Ved Vrat who had examined the injuries on the person of the deceased has described the injuries as follows -
(1) Contused lacerated wound 1/2"x 1/2" bone deep, left side frontal region; bleeding present;
(2) Contused lacerated wound 2"x 1/2" bone deep over vertex in mid line. Bleeding present;
(3) Deformity nose;
(4) Deformity left side forehead and left parietal region depressed fracture skull.
7.  The post-mortem examination was performed by Dr. Bishnu Kumar who noted 5 injuries - two out of which where definitely on the head. They are -
(1) Stitched wound with irregular margins 1 c.m. on the back part of left frontal region about 2 c.m. to the left of mid line. Tissues underneath were lacerated and depression in this area was present;
(2) Stitched would with irregular margin 2.5 c.m. with abrasions all round in an area of 3 c.m. on the vertex in mid line i.e. in the back part of parietal region.
Dr. Bishnu Kumar further stated as follows:
"On opening head effusion of blood in scalp in whole of the frontal region on the both sides and parietal and temporal region on left side was also present. Depressed communicated fracture involving left frontal and parietal bones was present. From three sides of this communited fracture, fissured fracture was going. On the right side this fracture was continuous with the separation of the suture which ended at the junction of middle and front fossa. On the front and fissured fracture was traversing on the front fossa and joining the fracture coming from the middle fossa. Plenty of subdural haemorrhage covering whole of right cerebral hemisphere and subsrachnoid haemorrhage in plenty was present.......... In my opinion death in this case was due to intracramial haemorrhage and fractured skull consequent to head injury caused by some blunt object or surface."
(The above quotation is as printed in the paper book.)
8.  No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal.
9. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under Section 302, I.P.C. was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325, read with S. 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts.
10.  Therefore, we set aside the conviction under Section 302, I.P.C. and convict the appellant under Section 325, read with Section 34, and sentence him to five years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of the order passed against him by the High Court.
Order accordingly.