N Criminal Appeal No 175 of 1974
Appeal by special leave from the judgment and order dated the 18th October 1973 of the Allahabad High Court in Crl
Appeal Nos
1307 and 1966 of 1973
AND Criminal Appeal Nos
367 369 of 1974
Appeals by special leave from the judgment and order dated the 18th October 1973 of the Allahabad High Court in Criminal Appeal No 1307 of 1973 connected with Crl
Appeal Nos
1287 and 1566 of 1973
47 Rajendra Singh RK Garg BP Singh and Ranjit Kumar for the Appellant
OP Rana and MV Goswami for the Complainant
Dalveer Bhandari for the Respondent
The Judgment of the Court was delivered by BAHARUL ISLAM J
These four Criminal Appeals are by special leave
Criminal Appeal No 175 of 1974 is by the four appellants Maqsoodan Madan Mohan Prayagnath and Nando who have been convicted under Sections 30234 and 30734 Penal Code
The material facts may be briefly stated as follows On 8 61972 at about 545 or 600 am when Sulley PW 1 along with his brother Jadon deceased his son Rajendra CW 1 and his nephew Vijay Kumar PW 3 were going from their house in Neem Gali Mathura to their Dharamshala in Mohalla Bengali Ghat via Vishram Ghat and reached the area called Shyam Ghat they were waylaid by the twelve persons accused in the case and were assaulted
According to the prosecution the accused persons were variously armed with Ballams phrases and lathis
Another group of twelve or thirteen persons who were associates of the accused was standing at Vishram Ghat and some one was constantly inciting the accused persons with the expression kill kill whereupon the accused persons attacked and assaulted Jadon Vijay Kumar Rajendra and Sulley
Jadon and PW 3 were severely injured
The condition of Jadon was very precarious
After the assault the miscreants left
PW 1 arranged for a lorry belonging to one Vishnu Chaubey and carried the injured persons to the District Hospital
The driver of the lorry was one Than Singh
Jadon and PW 3 were removed to the operation theatre
Thereafter PW 1 proceeded to the Police Station Kotwali at Mathura and submitted a written First Information Report FIR about the incident
The FIR was written by his nephew Prakash Chandra Chaturvedi PW 8
The FIR was lodged at 630 am at the Police Station and has been proved in this case as exhibit Ka 16
After lodging the FIR PW 1 came back to the hospital where the injuries of all the four injured persons were examined by Dr BS Babbar
As the condition of the injured persons was serious intimation was sent to Shri UC Tripathi DW 7 Sub Divisional 48 Magistrate Sahabad for recording their statements
The Magistrate came and recorded the statements of PW 3 and CW 1 at 915 am and 920 am respectively
Jadon was operated upon and his condition was such that he could not make any statement
In fact he succumbed to the injuries the next day namely 961972 at 325 pm
The post mortem examination was conducted on the dead body of Jadon by Dr BS Babbar on 1061972 at 1000 am 3
The police after investigation submitted charge sheet against the twelve accused persons all of whom pleaded not guilty
The First Additional Sessions Judge Mathura who tried the case convicted eleven out of the twelve accused persons and acquitted accused No 12 Kanhaiya
Appellant Maqsoodan was convicted under Section 302 IPC and sentenced to death
The other ten accused persons were convicted under Sections 302149 and 307149 IPC and sentenced to imprisonment for life each under Section 302149 Penal Code
Accused Parmatma was convicted under Section 147 IPC and the rest were convicted under Section 148 IPC They were sentenced to various terms of imprisonment
The sentences of imprisonment were directed to run concurrently
There was also a reference for the confirmation of the death sentence imposed on Maqsoodan
The convicts filed several appeals before the High Court of Allahabad
The High Court altered the convictions of Maqsoodan Madan Mohan Prayagnath and Nando from under Sections 302149 and 307149 to ones under Sections 30234 and 30734 Penal Code
The sentence of death imposed on Maqsoodan was reduced to imprisonment for life
All of them were acquitted of the offences under Section 147 or Section 148 IPC The convictions and sentences as against the other six accused persons were set aside and they were acquitted
The acquittal of Kanahaiya was affirmed
Criminal Appeals No 367 368 and 369 of 1974 have been filed by the State against the acquittal of the eleven accused persons of the offences under Sections 147 and 148 Penal Code SLP No 766 of 1974 is by the State against the acquittal of Kanahaiya
All these appeals will be disposed of by this common judgment
Shri Rajendra Singh learned counsel appearing for the appellants in Criminal Appeal No 175 of 1974 first submits that 49 the conviction of the four appellants is unsustainable in law he submits that the evidence of the four witnesses namely PW 1 Sulley CW 1 Rajendra PW 3 Vijay Kumar and PW 2 Jagdish cannot form the basis of the conviction as only one witness namely PW 2 Jagdish out of five witnesses named in the FIR has been examined the eye witnesses examined are interested and their evidence cannot be safely relied on
The High Court has found that the testimony of the eye witnesses namely PWs 1 2 3 and CW 1 suffer from numerous infirmities
It therefore sought support to their testimony from the two earlier statements erroneously called dying declarations Exhibits Ka 22 and Ka 23 made by PW 3 Vijai Kumar and PW 2 Jagdish respectively
The infirmities referred to by the High Court consisted in according to the High Court improvements made by the witnesses and variations in their earlier and latter statements
In our opinion on that ground alone the testimony of PWs 1 2 3 and CW 1 cannot be held to be infirm
It is the duty of the court to remove the grain from the chaff
These four witnesses are the injured witnesses having received the injuries during the course of the incident
Their presence at the time and place of the occurrence cannot be doubted in fact it has not been challenged by the defence
As both the parties were inimical for a long time it will be prudent to convict only those persons whose presence and participation in the occurrence have been proved by the prosecution beyond reasonable doubt
We agree with the finding of the High Court that the presence and participation of appellants Maqsoodan Madan Mohan Prayagnath and Nando who are appellants in Criminal Appeal No 175 of 1974 has been proved beyond reasonable doubt despite the improvements and variations in their evidence
Shri Rajender Singh has submitted that it is not safe to rely on the testimony of PWs 1 2 3 and CW 1 as the prosecution has not examined all the witnesses named in the FIR except Jagdish nor has the prosecution examined any of the neighbours
It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts
It is the quality that counts
Learned counsel has not pointed out to us that any witness better or more creditable has been omitted by the prosecution
As stated above the eye witnesses examined in this case were the best and natural witnesses
Learned counsel also has criticized that during the course of evidence prosecution alleged that Maqsoodan 50 gave two blows but that fact was not mentioned in the FIR
He has also criticised that the injured witnesses do not say who injured whom
This on the contrary shows that the witnesses examined were not tutored and they gave no parrot like stereotyped evidence
It may be remembered that PW 1 who lodged the FIR received as many as seven incised wounds one of them being on the left chest he took Jadon who had received sd serious injuries and who later on succumbed lo them and CW 1 who received five incised injuries and PW 3 who has also seriously injured to the hospital
He lodged the FIR thereafter
The condition of his mind and disposition can easily be imagined
There were bound to be some errors in the FIR
It may also be remembered that the FIR was lodged within half an hour of the occurrence
There was little time lost
The occurrence took place at about 600 am on 861972 It is nobody s case that the witnesses were unable to recognise the real culprits
The accused persons were well known to the witnesses from before
They did not have any reason to omit the real culprits and implicate falsely the accused persons
The evidence of PWs 1 2 3 and CW1 could have been accepted even without corroboration
Even so the High Court rightly pressed into service the earlier statements of PW 3 and CW1 exhibit Ka 22 and Ka 23 respectively
Ka 22 and Ka 23 have been wrongly called dying declarations
The statement written or verbal of relevant facts made by a person who is dead is called a dying declaration it is relevant under Section 32 of the Evidence Act when the statement is made by the person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in case in which that person s death comes into question
When a person who has made a Statement may be in expectation of death is not dead it is not a dying declaration and is not admissible under Section 32 of the Evidence Act
In the instant case the makers of the statements exhibit Ka 22 and Ka 23 are not only alive but they deposed in the case
Their statements therefore are not admissible under Section 32 but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in the Court
In the instant case exhibit Ka 22 and Ka 23 respectively corroborate the testimony in Court of PW 3 and CW 1 respectively
The High Court has found that the witness later on improved the story and roped in some other persons
As a rule of 51 caution the High Court has found that the participation of the four appellants in the offence has been proved beyond reasonable doubt and the presence and participation of the other eight accused persons named by them have not been proved beyond doubt
We do not find valid reason to interfere with this finding of fact of the High Court in these appeals under Article 136 of the Constitution
As the number of accused persons present and participating in the occurrence have not been proved to be five or more the High Court has rightly held that the common object necessary for constituting an unlawful assembly has not been proved and therefore in the facts and circumstances of the case the High Court correctly held that common intention has not been proved and as such the four appellants were rightly acquitted of the offence under section 302 read with section 149 IPC and also rightly acquitted all the other accused persons of the offences under Sections 147 and 148 IPC 10
Shri Rajinder Singh next submits that if any offence at all has been committed by the appellants of Criminal Appeal No 175 of 1974 the offences may be under Section 326 IPC depending on the medical evidence and circumstances of the case and that Section 34 IPC cannot apply as no common intention has been proved
We cannot accept this submission
Dr BS Babbar PW 
3 who held the post mortem examination on the dead body of Jadon found a number of wounds out of which the following were serious 1
Incised wound 2 x 14 x scalp deep on head
Incised wound 3 x 14 x scalp deep on the head 3
Stiched wound with draining tube 3 towards upper portion of the stomach on right side
Stiched wound 112 on the upper portion of the left side of the stomach
In his opinion death was due to cyncope following shock and Haemorrhage as a result of the injuries
According to him injuries No 1  2 separately was sufficient to cause death in the ordinary course of nature
It therefore cannot be argued that the offence committed was not murder
52 Common intention is a question of fact
It is subjective
But it can be inferred from facts and circumstances
In this case the appellants were related
All of them were armed with deadly weapons
They were together
There was an order by some one kill kill when all of them simultaneously attacked the deceased and PWs 1 2 3 and CW 1
After the occurrence they left together they were later arrested from the same place
The High Court therefore rightly held that the appellants caused the injuries with the common intention and was justified in convicting the appellants under Section 30234 of the Penal Code
We therefore affirm the conviction and sentences inflicted by the High Court on Maqsoodan Madan Mohan Prayagnath and Nando appellants in Criminal Appeal No 175 of 1974 and dismiss the appeal
As held above that the High Court rightly held that the prosecution failed to prove the common object and therefore it rightly acquitted all the accused persons of the offences under Sections 147 and 148
In the result the State appeals are also dismissed
P B R Appeal dismissed


Summary:
The prosecution case against the 12 accused persons was that armed with deadly weapons they waylaid and assaulted the deceased and three others accompanying him and that someone among another group of 12 of their associates standing at some distance constantly incited the accused with the words kill kill
The deceased received serious injuries and died on the following morning
While the appellant was convicted under section 302 Indian Penal Code and sentenced to death ten other accused were convicted and sentenced variously
One of them was acquitted
On appeal the High Court reduced the sentence of death passed on the appellant to imprisonment for life
Convictions of four of the 11 accused were altered from under section 302149 and section 307149 to one under sections 30234 and 30734 IPC
All of them were however acquitted of the offences under section 147 or section 148 IPC The convictions and sentences against the other six accused were set aside and they were acquitted
It was contended on behalf of the appellants that their conviction was unsustainable in law because the evidence of the eye witnesses who were interested parties could not be safely relied upon
Dismissing the appeal  HELD The High Court erred in stating that the testimony of the four eye witnesses suffered from numerous infirmities that they made improvements in their testimony and that there were variations in their earlier and later statements
On that count alone their testimony could not be held to be infirm
It is the duty of the Court to remove the grain from the chaff
49 C D 46 The parties were inimical for a long time
The four witnesses were the injured persons and therefore their presence at the time and place of occurrence could not be doubted
The presence of all the four accused in the scene of occurrence and their participation in the crime had been proved beyond reasonable doubt despite the improvements and variations in the evidence of witnesses
49 E F In a case of this kind it is not the number of witnesses examined or the quantity of evidence adduced by the prosecution that counts
It is the quality that counts
Eye witnesses examined in the case were the best and natural witnesses
The accused persons were known to the witnesses and they did not have any reason to omit the real culprits and implicate falsely accused persons
49 G H 50 C A statement written or verbal of relevant facts made by a person who is dead is called a dying declaration and is admissible in evidence under section 32 of the Evidence Act
But when a person who has made a statement even if it be in expectation of death but is not dead it is not a dying declaration
It is not admissible under section 32 of the Evidence Act
50 E F In the instant case the two witnesses whose statements were erroneously called dying declarations by the High Court were alive and deposed in the case
Such statements are admissible under section 157 of the Evidence Act as former statements made by them to corroborate their testimony in the Court
50 F G Common intention is a question of fact and is subjective
It can be inferred from facts and circumstances
In the instant case the appellants who were related to one another were armed with deadly weapons when they waylaid and attacked the deceased and his companions someone incited them to kill and after the assault they left the scene of occurrence together and they were arrested from the same place
There was the therefore common intention and the High Court was justified in convicting them under section 30234 IPC
52 A C