Allahabad High Court
Irshad & Another vs State Of U.P. on 5 March, 2013
Author: Anil Kumar Sharma
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 35 Case : - CRIMINAL APPEAL U/S 374 CR.P.C. No. 4977 of 2009 1. Irshad both sons of Mohd. Farooq, residents of Village Baripur, 2. Gulshad Police Station Kokhraj, District Kaushambi. ..........Appellants Versus State of U.P. .......Respondent Counsel for appellants : Sri Dileep Kumar and Sri Rajeev Gupta and Imran Ullah Khan Counsel for the Respondent : Sri R.Y. Pandey. AGA Counsel for the complainant : Sri Kamal Krishna, Sr. Advocate assisted by Sri Moinuddin. Hon'ble Rakesh Tiwari, J . Hon'ble Anil Kumar Sharma, J.
(Delivered by Justice Anil Kumar Sharma) Challenge in this appeal is to the judgment and order dated 01.08.2009 passed by the then learned Sessions Judge, Kaushambi in S.T. Nos. 190 of 2005 and 189 of 2005 whereby the appellants have been convicted and sentenced as under : -
Sl. No. Name of Accused Under Section Imprison-
ment Fine Default R.I. 1 Both accused-appellants 449 IPC 10 Yearrs' RI Rs.2,500/-
1 Year 1 450 IPC 7 Years' RI Rs.2,000/-
1 Year 1 307/34 IPC 10 Years' RI Rs.2,500/-
1 Year 1 302/34 IPC Life Imprisonment Rs.7,000/-
3 Years 2 Accused Gulshad 25 Arms Act 3 Years' RI 500/-
6 Months All the sentences were to run concurrently.
2. The facts germane to the appeal are that on 19.06.2005 at 9.30 a. m. complainant Anwar Mahmood son of Sri Mahood Hasan, resident of village Baripur, P. S. Kokhraj, Distt. Kaushambi submitted a written report in Police Station Kokhraj stating that Irshad had taken loan in the name of Ilyas, younger brother of Mohd. Ayub and since then there was tension between both the parties. On 19.06.2005 at 9.00 a.m. Irshad from his D.B.B.L. licence gun and accused Gulshad from country made pistol fired shots on Mohd. Ayub, and when his daughter Smt. Baby @ Tabassum ran to save him, fire was also shot on her. The incident took place inside the house of Mohd Ayub in which both the injured suffered serious injuries. The complainant along with both the injured went to police station Kokhraj and submitted his written report, on the basis whereof Case Crime No. 174 of 2005 was registered against both the appellants under Sections 452, 307, 504 and 506 I.P.C. Investigation of the case was entrusted to S.I. Paras Nath Yadav. He recorded the statements of the complainant and both the injured, who were sent for medical examination. Dr. B.N. Srivastava medically examined Smt. Baby @ Tabassum on 19.06.2005 at 11.30 a.m. in Swaroop Rani Hospital, Allahabad and he found following injuries on her person:-
(i) Fire arm wound of entrance size 3 cm x 3 cm internal side of right thy 10 cm about right knee, margins inverted, blackening in the wound and color of abrasion present.
(ii) Fire arm wound of exit of size 4 cm x 4.00 cm on the outer part of thigh, 15 cm below right GI margins inverted fresh blood present.
Duration of injures was fresh and were caused by fire arm. The general condition of the patient was low and she was admitted in the hospital. X-ray of right thigh was advised.
3. Injured Mohd. Ayub was also admitted in the Swaroop Rani Hospital, Allahabad on 19.06.2005 where he scummbed to the injuries at 11.45 a.m. The inquest on his dead body was performed on 19.06.2005 at 1.40 p. m. and it was sent in sealed cover for post mortem examination along with usual papers. Dr. Sanjiv Yadav conducted autopsy on the cadaver of the deceased on the same date at 4.30 p. m. He found that the 50-years old deceased was having good built body male of average muscularity. Rigor-mortis was present on neck and upper limb. He found the following ante-mortem injuries on his person:-
(i) Entrance wound 3 x 3 c.m. x Muscle deep on left side of hip near ischium. Margin inverted. Blackening and tattooing present. Hair were partly burnt. The injury was upward and interiorly towards left region.
(ii) Exit wound 7 x 4 c. m. x organ deep in left inguinal region. Margin inverted. Under neath vessels lacerated. Blood clot present.
(iii) Entrance wound 2 x 2 c. m. x muscle deep on right side of back of hip. Direction medially margins blackening present inverted.
(iv) Exit wound 8 x 6 c. m. on back of right side of scrotum just below to scrotum near anal canal and scrotum. Margin inverted. Blood clot present in the wound. Vessels lacerated.
(v) Hospital bandage drip mark (I.V.).
(vi) Mark of injection on the right elbow, fore arm.
In the internal examination doctor found that both the chamber of the heart, stomach and small intestines were empty. The doctor obtained that the deceased suffered both due to shock and hemorrhage as a result of ante-mortem fire-arm injuries from a close distance.
4. The Investigating Officer reached on the spot and recorded the statement of the witnesses and seized five empty cartridges 12 bore and one empty cartridge 315 bore in presence of witnesses and prepared memo Ex. K-8 on the spot. He also took the samples of plain and blood stained earth of the floor through memo Ex. Ka-9. On 24.06.2005 both accused-appellants were arrested by the police and on their interrogation they confessed their guilt and offered to get the weapons of the crime recovered. They took the police about 200 meters away from abadi of the village in northern side and inside the dense chari crop field of the Purshottam Maurya, accused Irshad took out his DBBL gun and two cartridges 12 bore, while accused Gulshad handed over a country made pistol 315 bore and two live cartridges 315 bore at 5.40 p. m. Both the accused persons stated to the police that with these weapons they have fired shots on Ayub and Smt. Baby @ Tabassum. The recovery memo was prepared and the weapons were sealed. On the basis of the recovery memo Case Crime No. 176 of 2005 under Section 3/25 Arms Act was registered against accused Gulshad at 7.30 p.m. on 24.06.2005 Investigation of this case was entrusted to SI Pradeep Kumar Yadav. During investigation the empty cartridges recovered from the spot as also the weapons handed over by the accused persons to the police were sent for scientific examination to Forensic Science Labotrary, Lucknow, who reported that the empty cartridges EC-1, EC-2 and EC-5 were discharged from DBBL gun and cartridges EC-6 was fired from country made pistol sent for examination. The investigation in both the case culminated in the charge sheets against the accused appellants.
5. After the committal of the case to the Court of Session, charges for the offence punishable under Section 449, 450, 302/34 and 307/34 I.P.C were framed against both the accused who abjured their guilt and claimed trial. Accused Gulshad was further charged for the offence punishable under Section 25 Arms Act to which he pleaded not guilty.
6. In support of its case, the prosecution had examined. Smt. Baby @ Tabassum PW-1, Mohd. Haneef PW-2, Anwar Mahmood PW-3, Dr. Bhupendra Nath Srivastava PW-4, S.I. Ashok Kumar Yadav PW-5, Dr. Sanjiv Yadav PW-6, S.I. Paras Nath Upadhyay PW-7, S.I. Pradeep Kumar Yadav PW-8, S.I. Suresh Kumar Mishra PW-9, Constable Shri Krishna Katiyar PW-10, S.I. Raisuddin PW-11 and constable Ram Bahadur PW-12.
7. In their separate statements under Section 313 Cr.P.C. both the accused persons denying the entire prosecution story have stated that Javed @ Munnu real brother of Smt. Baby @ Tabassum who had enmity with other villagers had brought some persons from his in-laws' village Ujhihini in order to frighten the villagers who were firing shots. Mohd Ayub and his daughter Smt. Baby @ Tabassum came out from their house and sustained fire arm injuries. In defence, the accused persons have examined by Raghuvendra Naraian Tripathi as DW-1.
8. The learned Sessions Judge after hearing the parties' counsel had convicted and sentenced both the accused-appellants as indicated in para-1 of the judgment. Aggrieved, they have come up in appeal.
9. We have heard the learned counsel for the parties at length and perused the original records of the case carefully.
10. Learned counsel for the appellants has argued that the following points before:
i) that the FIR is ante-timed and it has no evidentiary value in view of statement of PW-3;
ii) that there was no motive to kill the deceased or injure PW-1;
iii) that the witnesses examined in the case are closely related with the deceased and no independent witness had been examined:
iv) that presence of PW-2 on the spot at the time of incident is not at all proved;
v) that the incident had not taken place in the manner as alleged by the prosecution;
vi) that the prosecution story is full of contradictions and witnesses have made improvements;
vii) that the alleged statement of deceased u/s 161 Cr.P.C. cannot be considered as his dying declaration and it was not put to the accused persons in their statements u/s 313 Cr.P.C.;
viii) that interpolation in judicial record was made to make them consistent with the prosecution story;
ix) that the alleged recovery of fire arms and ammunition at the instance of accused is false and fabricated.
11. Per contra learned AGA and the learned senior advocate for the complainant have contended that it is a day light murder, report whereof was promptly given to the police within half an hour of the incident; that both the parties are closely related with each other; that PW-1 is the wife of accused Gulshad, while both the accused are real nephews of the deceased; that the scribe has tried to shield the accused persons; that the incident had taken place in the morning hours inside the house of the deceased, so there was no possibility of any other person having witnessed the incident; that the statement of the deceased u/s 161 Cr.P.C. duly proved by the I.O. is his dying declaration which was put to the accused persons in their statements u/s 313 Cr.P.C and that the accused have voluntarily offered to get the weapons used in the crime recovered and they were accordingly handed over by them to the police and the place of recovery was in the special knowledge of the accused persons.
THE F.I.R. - WHETHER ANTE-TIMED
12. The consistent case of the prosecution is that the incident had taken place at 9.00 a.m. on 19.6.2005 and its report was promptly lodged with the police at 9.30 a.m. the same day by PW-3. It has also come in evidence that both the injured were taken to the police station on a tractor and they were interrogated by the investigating officer. The distance of police station from the village of incident is only 2 Kms. The registration of case has been testified by both the investigating officers i.e. Ashok Kumar Yadav PW-5 (Station Officer of P.S. Kokhraj at the time of incident) and Paras Nath Yadav PW-7 (the 1st investigating officer). Both of them have stated that this case was registered on the basis of written report of Anwar Mahmood in their presence at the police station at crime no. 174/2005 u/s 452/307/504/506 IPC on 19.6.2005 and its investigation was entrusted to him (PW-7). The check report has been proved by Sri Yadav as Ex.Ka-5 and copy of GD regarding registration of the case has also been exhibited by Paras Nath Upadhyay PW-7 as Ex. Ka-22. A bare suggestion had been given to PW-7 that the report is ante-timed, which has been denied by him. No material had been put to any of the above witnesses in cross-examination to show that the report was not registered at the given time.
13. Anwar Mahmood PW-3 is the maker of the written report Ex.Ka-1. He has given eye witness account of the incident and has stated that the report was written by him, which is in his hand-writing and it bears his signature. According to him he wrote the report while sitting on the tractor outside the police station and he had taken Ayub in tractor to the police station. Although the testimony of this witness with regard to writing the report and handing it over at the police station could not be shaken by the defence, but the tenor of his entire deposition shows that he has tried to shield the accused persons, as rightly argued by the learned counsel for the complainant. The demeanor of this witness had been noted by the trial Court in his examination in chief which fortifies our above conclusion. The actual statement of this witness in this regard, is as under:
" ?kVuk vkt ls yxHkx X;kjg efgus igys dh gSA bj'kkn] xqy'kkn rFkk bfy;kl ds chp esa yksu ds ysu nsu dk >xM+k FkkA eSa v;wc ds cjkens esa Fkk rc rd Qk;fjax 'kq: gks x;hA tc Qk;fjax cUn gks x;h rks eSa v;wc ds ?kj ds vUnj ?kqlkA eSaus ns[kk fd v;wc ygw yqgku FksA csch dks xksyh yxh FkhA v;qc vkSj csch ds vykok vkSj ogkW ij dksbZ ekStwn ugha FkkA eSaus bj'kkn vkSj xqy'kkn dks edku ds ckgj fudy dj Hkkxrs gq;s ns[kk FkkA xokg us dgk fd muds gkFk esa dqN lkeku Fkk dkQh lkspdj xokg us dgk muds gkFk esa cUnwd FkhA bj'kkn ds gkFk esa cUnwd FkhA ;g tokc Hkh xokg us dkQh lkspdj fn;kA xqy'kkn ds gkFk esa dV~Vk FkkA fnu dk le; FkkA lcsjs ds 8-30 ls 9-00 cts dk le; FkkA bl ?kVuk dh fjiksVZ eSaus fy[kh FkhA xokg dks rgjhjh fjiksVZ i PW-1 has categorically stated that Anwar Mahmood had taken her and his injured father to police station in a tractor. This statement finds corroboration from the copy of GD (Ex.Ka-22) regarding registration of the case, but Anwar Mahmood in the very 1st line of his cross-examination has stated that he does not know as to who has taken Baby @ Tabassum PW-1 to the police station. The categorical statement of this witness about writing the report is that he has himself written the report, but the investigating officer has recorded in his statement that he dictated the report to some one and signed the same. PW-3 has later stated that there was some mistake in the report which he wrote at the residence, but he tore it off and then wrote another report out side the police station by sitting on the tractor. The later statement of this witness appears to have been given to benefit the accused persons, because in examination-in-chief he has not stated that he wrote any report at the residence, but straight away said that he wrote the report outside the police station on the tractor. If he had written some other report earlier at home, then he could have said so in his examination-in-chief, but very cleverly he had given this statement in cross-examination. Our conclusion about the conduct of this witness finds corroboration from his statement where he reluctantly described the weapons carried by the accused person when he had seen them coming out from the house of the deceased. Thus, no reliance can be placed on the statement of PW-3 that he had written some report earlier which was torn by him as some mistake had crept therein. Considering the time gap between the incident and the time of reporting the crime to the police, there appears to be no possibility of any concoction or deliberations in drafting the written report. In the report the informant had not noted the name of any other eye witness namely Mohd. Haneef PW-2. The named accused are not strangers to the family of the deceased rather they are closely related with him and injured Baby @ Tabassum PW-2. Anwar Mahmood PW-3 is not related with the family of the deceased. Thus, we find that the report of the crime had been promptly lodged with the police and it can safely be taken into consideration for evaluating the other prosecution evidence in the case.
THE MOTIVE
14. Learned counsel for the appellants has vehemently argued that there was no motive for the accused to eliminate the deceased or the injured Baby @ Tabassum and they have been falsely implicated in the case. On the other hand the learned AGA has contended that immediate motive for the crime had been noted in the prompt FIR which was lodged by a person who is not closely related with the deceased or inimical with the accused persons. In order to appreciate this issue it would be pertinent to note the pedigree of the parties relevant for the disposal of this case, which has come in the statement of PW-1 and not disputed on behalf of the defence. It is as under:
Shadruddin __________________________________________ | | | | Mohd. Faooq Mohd. Ayub Mohd. Zubair Iliyas ____________ (deceased) | | Irshad Gulshad Wife-Baby Tabssum (Accused No.1) (Accused No.2) (PW-1) The above pedigree shows that both the accused are real nephews of the deceased and accused Gulshad is husband of injured Baby @ Tabssum PW-2 and father-in-law of the deceased. It has come in the statement of PW-1 that she was married with accused Gulshad about five years ago and out of the wedlock she had a son, who is residing with her and for last six months she was staying with her parents due to strained relations with her in-laws. The houses of both the parties are adjacent as is clear from the testimony of PW-1 and site plan. The location of these houses has not been disputed by the appellants. This case is based on direct evidence of eye-witnesses including one injured witness Baby @ Tabssum PW-1, so motive loses its significance. The immediate motive was with regard to a dispute on Bank loan taken by Irshad in the name of Iliyas. Prior to the incident Irshad and Iliyas had exchange of hot words in which deceased intervened which infuriated Irshad and Gulshad and when Baby @ Tabassum and her mother took the deceased inside the house soon thereafter both the accused armed with fire-arms entered into the house of the deceased and opened fires on the deceased and when his daughter intervened she was also injured causing fire-arm injuries to her. Thus, we find that the prosecution has successfully proved the motive for both the accused to assassinate the deceased and make life attempt on PW-1.
INTERESTED/RELATED WITNESSES AND NON-EXAMINATION OF INDEPENDENT WITNESSES
15. Much emphasis has been laid by the learned counsel for the appellants that no independent witness has been examined by the prosecution and only partisan and inimical witnesses have been produced in the case. On the other hand learned counsel for the complainant has contended that the incident had taken place at about 9 a.m. inside the house of the deceased, so the presence of any other stranger there is out of question and both the parties are closely related so there is no reason why PW-1 and PW-2 would falsely depose against the appellants. After considering the arguments advanced at the Bar, we find that the facts of the case clearly show that only Mohd. Anwar and Mohd. Haneef were present at the house of the deceased when the incident took place, so the presence of any other witness does not arise. The topography of the place of incident shows that the house of the accused-appellants is adjacent to the house of the deceased. The testimony of related witness cannot be discarded on the ground of their close relationship with the deceased or the injured, rather they would be the last person to screen the real offender. The incident had taken place in the broad-day light, so there is no occasion of misidentification of assailants and false nomination of accused persons. Anwar Mahmood PW-3 is an independent witness, who had some how tried to support the accused but the tenor of his deposition clearly shows that he is an eye witness of the incident. He was present at the house of the deceased prior to the incident along with Mohd. Haneef PW-2, so it was unnatural for him not to go inside the house of the deceased, where the accused fired shots on the deceased and his daughter in order to kill them. Thus, the prosecution story does not suffer from the vice of examining interested and partisan witnesses or non-examination of independent witnesses.
PRESENCE OF PW-2, MANNER OF INCIDENT AND EVIDENCE OF INJURED & EYE WITNESSES
16. Learned counsel for the appellants has vehemently argued that Mohd. Haneef PW-2, the alleged eye witness was not present on the spot as at the relevant time he was on duty in his Company and the incident is highly improbable and it has not taken in the manner as alleged by the prosecution. He has further contended that PW-1 could not have sustained fire-arm injuries in the manner as has been described by her in the Court and Anwar Mahmood PW-3 had not seen the incident of alleged firing inside the house of the deceased. On examination of record we find that PW-2 has stated that he had come to the house of deceased for taking money. He is the son-in-law of the deceased and his village is situated at a distance of 1-2 Kilometers from village Baripur, where the incident had taken place. He has been cross-examined by the defence on this point and he has stated that a day prior to the incident it was Saturday and he was on duty up to 8.00 p.m. In his company on Sunday only 25% officials perform duty up to 1.00 p.m. and on that day he had gone at 8.00 a. m. for taking leave only for 20-25 minutes as his son was suffering from high fever. He reached the company and his attendance was marked by the official after seeing him. He went to take leave from Bhawani Sarkar who told him to have short leave for an hour and for this he did not move any written application. He has further stated that his company is situated only at a distance of half kilometer from his village. The explanation given by this witness for his absence from duty on 19.6.2005 at the relevant time appears to be quite plausible. The calendar for the year-2005 shows that on 18.6.2005 it was Saturday and on the day of incident i. e. 19.6.2005 it was Sunday. Since on Sundays only 25% of the staff used to attend the company, so it was not difficult for the supervisor or the manager of PW-2 to grant him short leave without any written application. The witness wanted to consult doctor for his ailing son and for that purpose he must be in need of money, so he had come to Mohd. Ayub (deceased), his father-in-law to seek financial help from him. Although these facts could not be elicited from this witness, but the circumstances do show that for this reason he has visited village Baripur on the day of incident and that's why he has not accompanied the injured to the police station. It has come in cross-examination of PW-2 that in his absence his brother had taken his sick son to the doctor. In these circumstances, the presence of PW-2 on the spot at the time of incident is quite probable.
17. The manner of incident had been vividly stated by PW-1 and PW-2 in their deposition before the Court. Presence of PW-1 cannot be doubted as she is an injured witness and the time and place of incident give guarantee of her presence at the spot. Both these witnesses have detailed the incident in unison and there is no contradiction in their testimony. Learned counsel for the appellants with reference to the statement of the I.O. has contended that they have not stated so in their statements u/s 161 Cr.P.C., therefore, they have improved their version regarding the incident. We are not impressed with this argument. The statement u/s 161 Cr.P.C. of a witness is not generally recorded by the investigating officer verbatim, although they are required to do so. PW-1 was having fire-arm injury and she must be in great shock and pain when the investigating officer interrogated her at the police station. This conclusion finds corroboration from the testimony of investigating officer. Both these witnesses have given in detail as to how the deceased and injured Baby @ Tabassum suffered fire arm injuries at the hands of the accused persons, so it cannot be termed as improvements, rather in the facts and circumstances of the case we find that they have explained the manner in which shots were fired by the two appellants from their respective weapons and the injuries sustained by the injured and the deceased. PW-1 is the wife of accused Gulshad for five years who is also her real cousin (son of her uncle-Tau). Although their relations were strained for six months, but it has not reached the height of 'no return'. There cannot be any animus for her to depose falsely against her husband and his real brother. Similarly PW-2 is the son-in-law of the deceased, so he would also not screen the real offenders and falsely implicate the accused persons, who were also his close relatives. Anwar Mahmood PW-3 has although at places tried to support the defence, but over-all assessment of his deposition gives clear picture of the incident and he too has corroborated the prosecution story about motive and manner of assault in all material particulars.
18. PW-1 is a rustic woman and she had been subjected to lengthy cross-examination. She had given details of the topography of houses of the deceased and the accused, which materially finds corroboration from the site plan. She had not exaggerated the incident or role of accused persons in the incident. According to her after sustaining injuries his father sat down by the side of north-western wall and when accused Irshad tried to fire shot again from his gun, he caught the barrel of the gun and then three shots fired by him went in air without injuring any one. Learned counsel for the appellants has strenuously argued that in such a situation three shots cannot be fired from DBBL because the accused was required to reload the gun. It is true, but this fact has not been asked from PW-1 whether Irshad had reloaded the gun, when its barrel was caught by the deceased. Thus no benefit can be given to the accused-appellants on this score. From the testimony of PW-1 to PW-3, we find that they have fully proved the place and manner of incident and there are no material contradictions therein. Their testimonies are clear, cogent and reliable.
STATEMENT OF DECEASED U/S 161 Cr.P.C.- WHETHER DYING DECLARATION?
19. SI Paras Nath Upadhyay PW-7 has recorded the statement of deceased Mohd. Ayub when he was transported by PW-3 to police station soon after the incident on 19.6.2005. The said statement has been proved by this witness as Ex. Ka-21. The contention of the learned AGA is that this statement of the deceased recorded by the investigating officer prior to his death is his 'dying declaration'. Per contra learned counsel for the appellants has contended that while recording this statement the investigating officer has not procured two respectable witnesses and has also not obtained his signature or thumb impression, so he has violated the mandatory provisions of Regulation 115 of U.P. Police Regulations.
20. The principle on which the dying declaration is admitted is indicated by the Maxim of the Law - nemo moriturus proesumitur mentiri - 'a man will not meet his Maker with a lie in his mouth'. The statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death are relevant whatever may be the nature of the proceedings in which the cause of the death of the person who made the statement comes into question. If the Investigation Officer records the statement of an injured person under Section 161 Cr.P.C. in the course of the investigation into the case which has been originally registered under Section 307 etc., of the Indian Penal Code and if the injured person subsequently dies and the provision of law under which the case was registered is altered into Section 302 IPC, then also a dying declaration becomes admissible in evidence as substantive piece of evidence under Section 162 (2) Cr.P.C. Learned counsel for the appellants has criticized the alleged dying declaration on the ground that he has not followed mandatory provisions of Regulation-115 of U.P. Police Regulations, as he was required to record such declaration in presence of two respectable witnesses and signature or thumb mark of the victim should have been obtained on such statement. Suffice it to say that the statement of deceased u/s 161 Cr.P.C. was recorded by the investigating officer soon after registration of the case and before sending him for medical aid, so the statement was not recorded in the shape of dying declaration. The condition of Mohd. Ayub was not very much critical. We find support from the observations of the Apex Court given in the latest case of Shri Bhagwan Das Vs. State of U. P. (Criminal Appeal no. 1709 of 2009) decided on 6.12.2012, wherein the Apex Court has stated that a statement u/s 161 Cr.P.C. of an injured recorded by the investigating officer during the course of investigation can be accepted as a dying declaration even if compliance of Regulation 115 of U.P. Police Regulation has not been made. The relevant observations of the Apex Court are as under:
16. A reading of the said paragraph appears to be a guideline issued to the investigating officers as to the precautions to be taken while recording a dying declaration. It was stated therein that such declaration can be recorded by the investigating officer himself in the presence of two respectable witnesses and obtain the signature or mark of the declarant and the witnesses at the foot of the declaration. In the first place, such a guideline in the form of police regulation can have no impact on any superior statutory prescription. Leaving aside such a proposition which does not require to be considered in this case, the said para 115 will apply only in a grave situation where the victim is seriously injured and it would be impossible compliance of Section 32 (1) of the Evidence Act in its full rigour. Such guidelines have been issued to insure that at least the basic requirement of recording such a dying declaration in the presence of two respectable persons as witnesses while obtaining the signature or mark of the victim himself. It is relevant to note that the said paragraph 115 makes a specific reference to the recording of the dying declaration in which event alone such precautions have to be ensured by the investigating officers and not when Section 161 statement is recorded which does not require the signature of the author of the statement.
17. While keeping the above prescription in mind, when we test the submission of the learned counsel for the appellant in the case on hand at the time when 161 Cr.P.C. statement of the deceased was recorded, the offence registered was under Section 326, IPC having regard to the grievous injuries sustained by the victim. PW-4 was not contemplating to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid. Before sending him to the hospital for proper treatment PW-4 thought it fit to get the version about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-2 came to be recorded. Undoubtedly, the statement was recorded as one under Section 161 Cr. P. C. Subsequent development resulted in the death of the victim on the next day and the law empowered the prosecution to rely on the said statement by treating it as a dying declaration, the question for consideration is whether the submission put forth on behalf of the respondent counsel merits acceptance.
18. Mr. Ratnakar Dash, learned senior counsel made a specific reference to Section 162 (2) Cr. P. C. in support of his submission that the said section carves out an exception and credence that can be given to a 161 statement by leaving it like a declaration under Section 32(1) of the Evidence Act under certain exceptional circumstances. Section 162 (2) Cr.P.C. reads as under:
"162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act."
19. Under Section 32(1) of the Evidence Act it has been provided as under:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
20. Going by Section 32(1) Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32(1) of the India Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
21. As far as the implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32 (1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.
22. Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW-4 of the deceased by applying Section 162 (2), we have no hesitation in holding that the said statement as relied upon by the trial Court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under Section 326 IPC within the shortest time possible within which it could be recorded by PW-4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned counsel for the appellant also stands rejected."
The facts of the above-noted case are pari materia with the case before us, so the principles laid down by the Apex Court are fully applicable to the instant case.
21. Learned counsel for the appellants has further contended that the statement of deceased u/s 161 Cr.P.C. recorded by the investigating officer was not put to the accused in their statements u/s 313 Cr.P.C., therefore, it can not be read in evidence against them and it has materially prejudiced them in their defence. The argument is without any force. Perusal of the record shows that additional statements of accused were recorded u/s 313 Cr.P.C. on 8.6.2009 after the prosecution re-examined SI Paras Nath Upadhyay PW-7 to prove the statement of deceased u/s 161 Cr.P.C.. Specific question no. 2 was asked from each accused about the aforesaid statement of the deceased, which reads as under:
" iz'u&2% vfHk;kstu lk{; esa vk;k gS fd foospd ikjlukFk mik/;kl ih- Mcyw- 7 us fnukad 19-6-2005 dks pksVfgy ekS0 v;wc o et:ck Jherh rcLlqe mQZ csch dk c;ku vUrxZr /kkjk 161 na- iz- la- esa vafdr fd;kA ckn esa pksVfgy ekS0 v;wc dh e`R;q gks x;hA e`rd ekS0 v;wc ds c;ku vUrZxr /kkjk 161 na-iz-la- dh Nk;k izfr izn'kZ d&21 gSA bl lEcU/k esa vkidks D;k dguk gS\ mRrj% xyr c;ku fn;k gSA "
In the above question the statement of deceased recorded by the investigating officer u/s 161 Cr.P.C. was specifically asked and it was also noted that later on he has died. Thus, it cannot be said that the dying declaration of the deceased recorded by the investigating officer as statement u/s 161 Cr.P.C. was not put to the accused persons or they have been materially prejudiced.
22. The investigating officer PW-7 has proved the statement of deceased Mohd. Ayub as Ex. Ka-21 stating that he has recorded the statements of both the injured on 19.6.2005 in the case diary. In cross-examination he has stated that did not get the injury report of Ayub and he has recorded his statement at the police station. He has recorded the statements in presence of both the injured and there were other persons, but he does not remember their names. It is pertinent to note that this statement of PW-7 was recorded on 20.3.2009 that's about four years after the incident. In this statement the deceased has narrated the entire incident as also the facts leading to the incident as also the role of each accused, which is quite consistent with the prosecution story. Thus, this statement of the deceased can be relied upon as his dying declaration. It is now not res integra that conviction of an accused can be based solely on the dying declaration of the deceased, if it is reliable and is consistent with the prosecution story. Apart from it, in the instant case we have the testimonies of eye witnesses as also an injured witness, who have fully corroborated the prosecution story on all material particulars.
INTERPOLATION IN JUDICIAL RECORD, EFFECT?
23. Learned counsel for the appellants has vehemently argued that during trial of the case interpolations were made in the judicial record of the case and under the directions of this Court FIR was lodged against DGC (Criminal), officials of the Court of District Judge, Kaushambi, son of the deceased and others, so the prosecution has adopted malpractice to make its case consistent with the medical evidence. Although in the record of the case no such material is available, however, in the impugned judgment, the learned Sessions Judge before parting with the case has made certain observations lending support to the contention of the learned counsel for the appellants to some extent, but it is not relevant for our purpose because the record of the case with the help and consent of the parties was reconstructed and no objection was taken before the trial Court about the genuineness of such reconstructed record. The learned Sessions Judge has observed as under:
" Before parting with the judgment I have found it my duty to place on ecord that the Hon'ble High Court vide order dated 22.11.2005 passed in Misc. Bail Application no. 21365 of 2005 Irshad Vs. State had directed to decide the case within 6 months. The same could not be concluded because of several factors and one of the main factor was that during the pendency of the case in the statements of P.W.1 Smt. Baby alias Tabassum, PW 2 Shri Mohd. Haneef, PW 3 Shri Anwar Mahmood and PW 6 Dr. Sanjeev Yadav some tampering and alteration were done in the record of the Court. On the direction of the Hon'ble High Court a Departmental Enquiry was held and an FIR at Crime no. 222/2006 u/s 218/219/460 IPC was registered at P.S. Manjhanpur against five unknown persons on 27.11.2006. The police after investigation submitted chargesheet against the following six persons:
i) Shri Dinesh Chandra Srivastava, the then Reader of the Court of District & Sessions Judge, Kaushambi;
ii) Shri Ramendra Kumar Dwivedi, the then Sessions Clerk of the Court of District & Sessions Judge, Kaushambi;
iii) Shri Munnu alias Javed son of the deceased;
iv) Shri Ashok Kumar Verma, the then DGC (Criminal), Kaushambi;
v) Shri Ram Harsh Verma, Advocate, learned counsel for the complainant of the main S.T. Case; and
vi) Shri Meraj Ahmad.
The original statement of PW-1, PW-2, PW-3 and PW-6 which were recorded in the Court has been taken over by the police for investigation and the matter is pending in the Court. On the direction of the District & Sessions Judge reconstruction of those statements were made which are on record and on its basis this Sessions trial is being decided...."
After reconstruction the record has been set right. The observations of the Sessions Judge are more in the nature of giving an explanation as to why the case could not be decided in six months, as directed by this Court. In ante mortem injury no. 1 of the deceased, the size of fire-arm entry wound appears to have interpolated, but it is not significant in view of cogent, clear and reliable testimony of eye witnesses including the injured witness PW-1.
RECOVERY OF WEAPONS - CASE U/S 25 ARMS ACT AGAINST GULSHAD
24. During the course of investigation both the accused were arrested on 24.6.2005 at about 4.30 p.m. they got the weapons of offence recovered to the police. Accused Irshad took out his licensed DBBL gun and two live cartridges 12 bore, while accused Gulshad got recovered one country made pistol 315 bore and two live cartridges 315 bore to the police from the middle of dense chari field. This recovery has been proved by SI Ashok Kumar Yadav PW-5 and SI Paras Nath Upadhyay PW-7 through their statements before the trial Court. The recovered articles along with the empties found from the spot were sent for examination to Ballistic Expert of Forensic Science Laboratory, Lucknow and their report is on record. The report states that one empty 12 bore was found to have been fired the DBBL gun of accused Irshad and one empty 315 bore was discharged from the country made pistol 315 bore got recovered by accused Gulshad. Learned counsel for the appellants has criticized the recovery on the ground that there is no public witness. No fruitful cross-examination has been done from PW-5, who has also proved the case property of the case in the court before the Sessions Judge. PW-7 has stated in cross-examination that they had called public witnesses before recovery but no one turned up. It is very common that the people do not cooperate with police investigation particularly in the country side where mutual animosity within the groups in the village is very normal. No body wants to have enmity with the other in the matters which are not concerned with them. In the instant case both the parties belong to the same family, so no outsider would like to take risk of have animus of any one. The police witnesses are as much as reliable as any other public witness, unless a foundation is laid during their cross-examination for their false implication of accused on any ground what-so-ever. No such exercise has been done by the defence during the cross-examination of police officers who have arrested the accused persons and have made recoveries at the instance of each accused-appellant. Our conclusion on this score finds support from the latest case of Govindaraju @ Govinda Vs. State by Sriramapuram P.S. And anothers 2012 (78) ACC 545 (SC), wherein the Apex Court after elaborately discussing this point has observed, as under:
" The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction."
25. Thus, the testimony of PW-5 and PW-7 cannot be rejected for want of corroboration from public witnesses. Accused Gulshad has been charge-sheeted by PW-8 after investigation and sanction for his prosecution was also obtained from the District Magistrate for possessing illicit arm and ammunition. Thus, he has been rightly convicted for the offence punishable u/s 25 Arms Act and appropriately sentenced.
CONCLUSION
26. In view of what has been said and done above, we find that the prosecution had successfully proved its case against each accused-appellant beyond all reasonable doubt and the trial Court has not at all erred in returning guilty verdict against the them. The appeals have no force and are hereby dismissed. Both the appellants are in jail and would serve out the remaining part of the sentence.
27. Let certified copy of the judgment be transmitted to the court concerned and Chief Judicial Magistrate, Kaushambi for ensuring compliance. The accused-appellants be informed about the outcome of the appeal through Superintendent Jail concerned. The compliance report be submitted within 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J) March 05, 2013 Imroz