- (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. As per the prosecution story, the attack on the victim was on account of old enmity and litigation between him and the accused Mukhtar and Abrar. Mohd. Ashfaq was immediately rushed to the District Hospital, Ghazipur where he was attended to by Dr. S.N.Pandey PW-8 who was then on emergency duty. He found multiple gun shot injuries over the left side of the back in an area 12 cm x 14 cm, 9 in number measuring 1 cm x 1 cm, though there was no blackening or tattooing. In the meanwhile, Ram Singh PW-5, Advocate and Mohd. Ashfaq's junior, reached the hospital at 9.45 p.m. on getting information of the incident. Mohd. Ashfaq thereafter dictated a report to him and after it had been signed by him, it was taken to the Police Station and a FIR under Section 307 of the IPC was registered by Head Constable Lalta Yadav. A memo was also received in the Police Station at 10.35 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.
(2.) The prosecution in support of its case, relied primarily on the evidence of Dr. A.K. Dwivedi PW-1, who had conducted the post-mortem examination, Executive Magistrate-cum- Tahsildar Vir Bahadur Prasad PW-2, Ram Singh, Advocate, PW-5, Mujur PW-6 and Durga Ram PW-7, the two eye witnesses named in the FIR, (but who did not support the prosecution), Dr. S.N.Pandey PW-8, the doctor of the District Hospital who had certified as to the mental condition of the victim at the time of the recording of the dying declaration by the Tahsildar, and the investigating officer Sub-Inspector Ram Hit Shukla PW-9. The accused were then questioned under Section 313 of the Cr.P.C. They pleaded false implication due to enmity.
(3.) The trial court observed that as the two eye witnesses had turned hostile, the case rested exclusively on the three dying declarations of the deceased in the form of the FIR, the statement of the deceased recorded by the investigating officer under Section 161 of the Cr.P.C. and the statement recorded by the Tahsildar. The trial court held that as there were several discrepancies inter-se these three statements, they could not be relied upon and accordingly taking the murder as a blind one, acquitted the accused. The matter was thereafter taken in appeal by the State Government to the High Court. The High Court has, by its judgment, which is now impugned before us, reversed that of the trial court holding that the so called discrepancies were insignificant that they could occur in any statement recorded in Court and the discrepancy with regard to the presence or otherwise of a light which figured in one statement and did not figure in the other was of little or no consequence in the facts. The Court then examined the dying declarations and observed that in so far as accused Mukhtar, Mateen and Usman was concerned, no direct and positive role had been assigned to them in the three dying declarations of the deceased and it was the single shot attributed to Abrar, the present appellant, which had killed the deceased. The Court also held that if Mukhtar, Mateen and Usman had also been carrying country made pistol, they would in normal circumstances, have used them as well. The Court also observed that there was no bar in relying only on a part of a dying declaration as the only test was the test of reliability. The Court observed that the third dying declaration had been recorded by the Tahsildar after he had taken a certificate from the doctor that Mohd. Ashfaq was fit to make a statement. The Court also held that the statement given in the dying declarations that the deceased was carrying a torch by which he had been able to identify the accused was to be accepted, as he was an educated man and would ordinarily be expected to carry a torch. It was also observed that as the incident had happened in Ghazipur, which was a District Headquarters, street lights were also available as was clear from the evidence as well as the site plan. The High Court, accordingly, maintained the acquittal of Mukhtar, Mateen and Usman, but allowed the appeal with respect to Abrar, the appellant herein. He was, accordingly, sentenced to imprisonment for life under Section 302 of the IPC.;