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Judgment
Criminal Appeal No.1884/2008 and Criminal Appeal No.2100/2008 have arisen from the same judgment dated 30.08.2008 passed by the
Court of Shri B.S. Ohariya, IV Additional Sessions Judge, Jabalpur in Sessions Trial No.412/2007 (State Vs. Mohammad Arif and two others),
whereby learned Additional Sessions Judge had convicted all three accused persons namely Mohammad Arif, Mangan @ Sakhawat Khan and
Mohammad Shamim @ Shanu under Section 302 of the Indian Penal Code and had sentenced them to life imprisonment and fine in the sum of
Rs.500/-. In default of payment of fine, each of them was directed to undergo rigorous imprisonment for a further period of one month. Since both
of these appeals have arisen from the same judgment, they are being disposed of by this common judgment.
Briefly stated, the prosecution case is that deceased Gulam Nabi was younger brother of first informant Mohammad Azad (PW-4). Mohammad
Aslam (PW-5) is brother-in-law (Jija) of Mohamamd Azad. At about 9:00 p.m. on 12.06.2007, deceased Gulam Nabi had gone to the house of
Shamsuddin, Sweet Shop owner, to dine. At around 9:00 p.m., accused Mangan @ Sakhawat Khan put his arm around the shoulder of the
deceased and took him outside, where they were met by accused persons Mohammad Arif and Mohammad Shamim @ Shanu. Thereafter, an
altercation ensued. As a result, all three accused persons delivered blows with knives to deceased Gulam Nabi. Consequently, he fell down. The
incident was witnessed by Shahzad Khan (PW-2) Mohammad Islamuddin (PW-6) and Mohammad Alim (PW-9). At that time, first informant
Mohammad Azad and Mohammad Aslam were sitting at Mohammad Azad''s home. When they learnt about the incident, they rushed to the spot
and found deceased Gulam Nabi in an injured condition. They immediately picked him up, placed him in a rickshaw and took him to Victoria
Hospital, Jabalpur. On the way, deceased Gulam Nabi told them that accused Mangan had taken him out of Shamsuddin''s house, where
remaining two accused persons Mohammad Arif and Mohammad Shamim met them. An altercation ensued and the three accused persons
assaulted him with knives. By the time they reached Victoria Hospital, deceased Gulam Nabi had already expired. The first information report was
immediately lodged in P.S. Hanumantal, Jabalpur, at 9:45 p.m.. During post-mortem examination, it was discovered that the deceased had
sustained four incised wounds caused by hard and sharp object. Two of the injuries were caused to the chest. Injury no.2 situated below left
nipple, had pierced the pericardium and left ventricle of his heart. He had died as a result of cardio- respiratory arrest due to shock caused by
injury to a vital organ like heart. During investigation, on the disclosure statement made by accused Mohammad Arif under Section 27 of the
Evidence Act, the knife used in commission of the offence, was recovered.
The charge-sheet in the matter was filed and the trial Court framed a charge under Section 302 of the IPC against each of the aforesaid three
accused persons. After the trial, they were convicted and sentenced as hereinabove stated.
The trial Court held that though, eye-witness Shahjad Khan (PW-2), Mohd. Islamuddin (PW-6) and Mohd. Alim (Pw-9) had turned hostile, on
the basis of evidence of Mohd. Azad (PW-4) and Mohd. Aslam (PW-5) regarding oral dying declaration, the prosecution had succeeded in
proving beyond reasonable doubt that the accused persons had committed murder of deceased Gulam Nabi.
The conviction recorded by the trial Court has been assailed on behalf of the appellants mainly on the grounds that the oral dying declaration is
inherently a weak piece of evidence. It becomes weaker still if different witnesses to oral dying declaration are unable to reproduce the exact
words uttered by the deceased and it differs from witness to witness. It has further been submitted that the deceased is said to have told the
witnesses only the names of the assailants and other particulars of the assailants were not disclosed. There are several persons by the names
disclosed by the deceased living in the given locality; therefore, the dying declaration is not reliable. It has further been urged that Mohd. Azad
(PW-4) has not stated in his examination-in-chief that Mohd. Aslam (PW-5) was also with him when he received the information regarding the
incident. There was no previous enmity between the deceased and the appellants and the incident, as narrated, occurred on the spur of moment. It
has also been submitted that no witness who was attending the dinner party with deceased Gulam Nabi, when he was taken out by appellant-
Mangan @ Shakhawat Khan, has been examined. Dr. Mukesh Agarwal (PW-3), who had conducted the post-mortem examination has stated in
his cross-examination that a person would ordinarily die within 1-2 minutes after sustaining the kind of injury that was found in the heart of the
deceased. The maximum period during which a person could remain alive after sustaining such an injury, was 5-10 minutes. It appears highly
improbable that witnesses Mohd Azad (PW-4) and Mohd. Aslam (PW-5) would be able to reach the deceased within the aforesaid period;
therefore, the dying declaration becomes unreliable. The trial Court grievously erred in placing reliance upon the oral dying declaration. In support
of aforesaid contention, learned counsel for the appellants have invited attention of the Court to the judgments rendered by Supreme Court in the
cases of Sabbita Satyavathi Vs. Bandala Srinivasarao and others, AIR 2004 SC 4540, Waikhom Yaima Singh Vs. State of Manipur, AIR 2011
SC (Supp) 783 and Balbir Vs. Vazir and others, AIR 2014 SC 2778. In these circumstances, the appellants deserve the benefit of doubt and are
liable to be acquitted.
Learned Government Advocate for the respondent/State on the other hand has supported the conviction and sentence imposed upon the
appellants.
On perusal of the record and due consideration of rival contention, the Court is of the view that these appeals must succeed for the reasons
hereinafter stated:
As per the prosecution case, there were three eye-witnesses to the incident namely Sahjad Khan (PW-2), Mohd. Islamuddin (PW-6) and
Mohd. Alim (PW-9). All three witnesses have turned hostile; as such, there is no direct evidence available in the case.
In aforesaid circumstances, the prosecution case rests entirely upon the oral dying declaration purportedly made by deceased Gulam Nabi to his
brother Mohd. Azad (PW-4) and his brother-inlaw (Jija) Mohd. Aslam (PW-5), who rushed to the spot immediately after hearing about the
incident. The oral dying declaration is said to have been made while the deceased was being taken by aforesaid two witnesses to hospital in a
rickshaw.
Mohd. Azad (PW-4) has stated that at about 9:00 p.m. on 12.06.2007, he was at his home. At that time, a child arrived and told him that
Gulam Nabi had been stabbed. Thereafter, he rushed to Nalband Mohala and found his brother Gulam Nabi lying on the road near hand-pump in
front of Raheem Barber''s Shop. Aforesaid statement has been corroborated by Mohd. Aslam (PW-5), who is brother-in-law (Jija) of Mohd.
Azad. Mohd. Azad (PW-4) and Mohd. Aslam (PW-5) have further stated that Gulam Nabi had sustained injuries to his chest, head and hands.
Mohd. Azad has also stated that Gulam Nabi had injury to his stomach as well. Thereafter, they took Gulam Nabi in a rickshaw to Victoria
Hospital. Mohd. Azad has stated that on way to Victoria Hospital, Gulam Nabi had told him that he had gone to dine at Sweet Shop owner
Shamsuddin''s house. At that time appellant, Mangan had come and had taken him towards Nalband Mohala, where appellants Shanu and Arif
met him. All four had an argument. Thereafter, the three appellants assaulted Gulam Nabi with knives. In this regard Mohd. Aslam (PW-5) has
stated that on way to the hospital, Gulam Nabi had told them that all three appellants Mangan, Shanu and Arif together, had assaulted him with
knives. Mohd. Azad (PW-4) and Mohd. Aslam (PW-5) have stated that when they reached Victoria Hospital, Gulam Nabi had already expired.
Mohd. Azad (PW-4) has stated that Gulam Nabi was examined by doctors in the Victoria Hospital in his presence but he had expired. Mohd.
Azad (PW-4) and Mohd. Aslam (PW-5) have stated that after that they had gone to Hanumantal, police station in a two wheeler vehicle and had
lodged the FIR (Ex. P/3) at 9:45 p.m. the same night. ASI M.K.Verma (PW-12) has corroborated the statements of aforesaid two witnesses and
has stated that on the report lodged by Mohd. Azad, he had registered the FIR (Ex. P/3). On the report of Mohd. Azad, he had recorded Marg
Intimation (Ex.P/5).
Now, the question that arises for consideration is, to what extent reliance can be placed upon the statements of Mohd. Azad (PW-4) and
Mohd. Aslam (PW-5)? It has to be noted at the out-set that the Supreme Court has held in the case of Waikhom Yaima Singh Supra that:
15.There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be
wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is
a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the
witnesses who are said to have heard it. In the present case also, the exact words are not available.
Mohd. Azad (PW-4) is real brother of the deceased and Mohd. Aslam is Azad''s brother-in-law. Thus, they are related to the deceased. In
the examination-in-chief of Mohd. Azad, he has not mentioned that at the time of receipt of the information of assault by him, Mohd. Aslam was
also present on the spot. Though, in his cross-examination on behalf of appellant Mangan, he has stated that his brother-in-law had gone to police
station to lodge report with him, there is no mention in the statement that the brother-in-law had accompanied him from home to the spot.
Moreover, no witness who was attending the dinner party with deceased Gulam Nabi, when he was taken out by appellant- Mangan @
Shakhawat Khan, has been examined. These circumstances though, not decisive in nature, make the oral dying declaration vulnerable.
Mohd. Azad, in his deposition, has given details of the oral dying declaration made by Gulam Nabi to him whereas, Mohd. Aslam has
cryptically stated that Gulam Nabi had told them that Mangan, Arif and Shanu, all three together struck blows with knives. Thus, atleast Mohd.
Aslam has failed to reproduced the exact words uttered by the deceased. Supreme Court in the case of Waikhom Yaima Singh Vs. State of
Manipur (supra) has observed that oral dying declaration is a weak kind of evidence and where exact words uttered by the deceased are not
available particularly because of the failure of memory of the witnesses, who are said to have heard it and the exact words of the deceased differ
from witness to witness, reliance cannot be placed upon the oral dying declaration.
On the other hand, learned Govt. Advocate has contended that witnesses Mohd. Azad (PW-4) and Mohd. Aslam (PW-5), who are near
relatives of the victim, immediately rushed to the spot on hearing about the incident. They were taking deceased to the Hospital in a rickshaw. On
the way to the Hospital, he disclosed the names of the assailants to the witnesses. Before the deceased could be taken to the Hospital, he had
expired. The FIR was lodged within 45 minutes of the incident. During those 45 minutes, witnesses received information of the incident, rushed to
the spot, took the deceased to the Hospital, Doctors examined the deceased and pronounced him dead and the witnesses went on a two wheeler
to the concerned police station and lodged the report. They had no occasion to confer or interact with anyone, who was present on the spot
before lodging the FIR. The names of the appellants clearly figured in the FIR. Not only their names but their places of residence have also been
mentioned. In these circumstances, there was no way the witnesses could have learnt the names of assailants otherwise than from the victim
himself. As such, the statement of the witnesses regarding oral dying declaration cannot be disbelieved simply because Mohd. Aslam failed to
reproduce the exact words of the victim.
The arguments of learned counsel for the State no doubt are weighty and worthy of serious consideration. However, it may be noted that the
first informant Mohd. Azad (PW-4) has admitted in his cross-examination (paragraph no. 28) that when he had reached the police station
Hanumantal from the hospital, he had met police personnel but they did not lodge the report immediately. They went straight to the spot along with
him in a jeep. They spent about half an hour on the spot preparing the spot map. Thus, it is clear that the first information report was not lodged
immediately after the receipt of information of commission of the offence from Mohd. Azad, solely on the basis of his knowledge but was lodged at
least half an hour later also on the basis of the knowledge gathered by the police on the spot. Thus, the FIR was at least ante-timed, if not ante-
dated and implicit reliance cannot be placed thereon. In these circumstances, aforesaid argument of the learned counsel for State losses its edge.
The next point that has been raised on behalf of the appellants is that Dr. Mukesh Agrawal (PW-3), who had conducted the postmortem
examination upon the dead body of the deceased Gulam Nabi, has stated that the deceased had sustained five injuries caused by hard and sharp
object. Four of them were stab injuries and one was an incised wound. The fatal injury obviously was injury no.2, situated 4 c.ms. below the left
nipple, admeasuring 3 x 1 x 10 c.ms.. It had pierced the fifth rib, pericardium and left ventricle. The deceased had died of cardio-respiratory arrest
due to shock caused by injury to a vital organ heart. In the cross-examination, the medical witness has admitted that the deceased must have lost
two litres of blood and would have been in a position to talk for only a short while after sustaining the injury; however, he would not have been
able to talk normally. The witness has also admitted that ordinarily a person could remain alive for a period of about 1-2 minutes after sustaining
such injury. At the most, a person could stay alive after such injury for a period of about 5-10 minutes. On the basis of aforesaid evidence, it has
been urged on behalf of the learned counsel for the appellants that there was no way the witnesses could have reached the deceased while he was
still alive. If at all they had reached the deceased while he was still alive, he would not have been able to speak coherently to them and disclose the
names and addresses of the assailants; therefore, no reliance can be placed upon such oral dying declaration. In this regard, learned counsel for the
appellants have invited attention of the Court to the judgment rendered by the Supreme Court in the case of Sabbita Satyavathi Vs. Bandala
Srinivasarao and others (supra) wherein, eye-witnesses had turned hostile and Court had held that with injuries to the heart and lungs of the victim,
he would not have been in a position to make an oral dying declaration.
In the opinion of this Court, the aforesaid argument has considerable strength. Mohd. Azad (PW-4) has deposed in para no.15 of the cross-
examination that Shamsuddin''s house is situated at a distance of about 100 metres from his own house. Appellant Mangan had put his arms across
the shoulder of the deceased and had ventured out with him towards Nalband Moholla. Whereafter, other appellants had joined him. Thus, the
place of the incident was certainly more than 100 metres from the house of the witnesses where they were sitting, when they had received the
information. For want of clear evidence, there is no way of ascertaining how much more the distance was? Thus, it is doubtful whether the
witnesses had actually reached deceased while he was still alive and whether he had actually made any dying declaration to the witnesses and the
FIR was lodged solely on the basis of the knowledge of the first informant. In the facts and circumstances of the case the possibility that the
witnesses had simply informed the police about the assault upon the victim and the police had gathered the names and addresses of alleged
assailants from the spot and had lodged ante-timed FIR on the basis of knowledge gathered from the spot, cannot be discounted.
Learned counsel for the appellants have also placed reliance upon the judgment rendered by the Supreme Court in the case of Balbir Vs. Vazir
and others (supra) wherein, the oral dying declaration was held to be unreliable because the driver of the car in which the deceased was taken to
the Hospital and wherein, the dying declaration was alleged to have been made, was not examined and there was no corroboration to lend
assurance to the oral dying declaration. In the instant case also, the rickshaw puller has not been examined.
On the basis of foregoing discussion, the Court is of the view that in facts and circumstances of the case, it would be unsafe to base the
conviction of appellants solely upon the uncorroborated, oral dying declaration of witnesses Mohd. Azad and Mohd. Aslam; and therefore, all
three appellants deserve the benefit of doubt. The impugned judgment of conviction is not sustainable in the eyes of law and is liable to be set-
aside.
Consequently, the conviction and sentence of the appellants Mohommed Aarif, Mangan @ Sakhawat Khan and Mohommed Shameem @
Shanu under section 302 of the I.P.C. is set-aside and they are acquitted of the offence.
They shall be released forthwith if not required in connection with any other case.