Rafique @ Rauf & Ors vs State Of U.P

1. This appeal by the eight accused who were proceeded against in Crime No.397/97 in Sessions Case No.35/1998 in the Court of Second Additional Sessions Judge, District Kannauj, were charged and convicted for offences falling under Section 302 read with 149, 307 read with 149, as well as for offences under Sections 452, 148 and 147 IPC. All the accused were convicted and inflicted with the punishment of life imprisonment for the offence under Section 302 read with 149 IPC, 5 year rigorous imprisonment for the offence under Section 307 read with 149 IPC, 1 year rigorous imprisonment for the offence under Section 452 IPC, 6 months rigorous imprisonment for the offence under Section 148 IPC and 3 months rigorous imprisonment for the offence under Section 147 IPC.

2. The case of the prosecution as projected before the Court below was that 7 days prior to the date of occurrence there was some dispute between the children of the parties of the victim and the accused. A goat belonging to the accused persons stated to have gone into the maize field of the deceased Zahiruddin and when the son of the said deceased objected to that, he was caught by the father of the accused 1 to 6. When the deceased Zahiruddin came to know about the said conduct of Masook, father of the accused 1 to 6, he went and protested by questioning him as to how for the grazing of the maize crop by the goat belonging to Masook, the son of the deceased could be held in captivity. The said protest raised by deceased Zahiruddin was not liked by Masook and both stated to have abused each other. Pursuant to the said incident, on 05.09.1997 at about 3.00 pm, all the appellants-accused armed with country-made gun (Addhi) as well as country-made pistols and the first accused holding his gun, entered the house of the deceased where P.Ws.1 to 3 were conversing with the deceased, Zahiruddin and made indiscriminate firing towards the deceased and the other persons. The deceased, P.Ws.2 and 3 stated to have sustained firearm injuries and they raised alarm pursuant to which others rushed to the spot. The appellants stated to have escaped from the scene of occurrence after giving further threats.

3. The deceased and other injured were stated to have been brought to Kotwali Farrukhabad, where P.W.1 lodged the written complaint Ext. Ka-1. The crime was registered as Crime No.397/97, as was evident from the G.D. entry Ext.Ka-14. The Investigating Officer P.W.6 stated to have recorded the statement of the deceased Zahiruddin purportedly under Section 161 Cr.P.C under Ext. Ka-9. The injured along with the deceased stated to have been sent to the hospital where the injured persons including the deceased were examined by the doctor. The injury report of the deceased Zahiruddin was Ext. Ka-3, the injury report of P.W.2 was Ext. Ka-4 and the injury report of P.W.3 was Ext. Ka-2. The deceased Zahiruddin died on the next day, i.e. on 06.09.1997 at 3:30 pm. The inquest memo was Ext. Ka- 15 and the postmortem report was Ext. Ka-5. P.W.4 Dr. Irfan Ahmad was the doctor who conducted the postmortem and issued the postmortem certificate. The Investigation was initially carried out by P.W.6 and was later on completed by P.W.8. The charge-sheet was Ext.Ka-12. P.W.2, the wife of the deceased suffered two injuries, while P.W.3, the niece of the deceased, suffered one injury. The deceased suffered as many as eight injuries. It was in evidence that all the injuries were due to gun shots. The distance between the place of occurrence and the police station was stated to be 20 kilometers. All the injured were examined by the doctor by 5:45 pm to 6.10 pm on 05.09.1997 itself. It is in the evidence of P.W.5, postmortem doctor that based on the injuries noted on the body of the deceased it could be stated that he was capable of speaking in spite of the injuries sustained by him. The prosecution examined P.Ws.1 to 9. Based on the evidence before the trial Court and the incriminating circumstances existed against the appellants, they were questioned under Section 313 Cr.P.C and all the appellants denied their involvement and stated that due to animosity the evidence had been adduced against them. It was also stated that all of them belong to one and the same family. They did not choose to let in any evidence in support of their defence. It is in the above-stated background the conviction and sentence came to be imposed by the trial Court, which was also affirmed by the High Court in toto.

7. At the outset it will have to be noted that except mere denial of the offence alleged against the accused in their 313 questioning no other specific stand was taken on behalf of the appellants nor was any defence evidence, oral or documentary, placed before the Court. The motive for the offence was stated to be the grazing of maize crop by the goat belonging to the father of the appellants-accused 1 to 6 and the grand- father of appellant-accused 8 in the field of the deceased seven days prior to the date of occurrence. Admittedly, all the accused were closely related. Most of them belong to one family, namely, Masook. P.W.2 Shamshuddin, the complainant is the brother of the deceased. As far as the grazing of the maize crop as alleged by the complainant party was concerned not much argument was raised on behalf of the appellants. Even in the evidence nothing was stated to have been brought out in order to reject the said case pleaded by the prosecution. There was also no dispute about the fact that the occurrence took place in the premises of the deceased, as well as the complainant and other injured witnesses, namely, P.Ws.2 and 3. As regards the presence of the deceased and the other injured witnesses, namely, P.Ws.2 and 3 in the police station at the instance of P.W.1 who was also an eye-witness to the occurrence, was also not seriously disputed. We also find that the occurrence, which was stated to have taken place at 3.00 pm on 05.09.1997, was brought to the notice of the police without further loss of time, which was located about 20 kilometers away from the place of occurrence. There was also no serious argument raised as regards the registration of the FIR relating to the occurrence. Both the Courts below, therefore, held in one voice that there was no chance of any manipulation at the instance of the police.

8. While the occurrence had taken place at 3.00 pm, the deceased who was seriously injured along with the other injured witnesses P.Ws.2 and 3, were rushed to the hospital from the police station who were examined by P.W.4 between 5.45 pm to 6.10 pm on 05.09.1997. The injury reports Ext.Ka- 3, Ext.Ka-4 and Ext.Ka-2 of the deceased, P.W.2 and P.W.3, read along with the evidence of P.W.4 Dr. Irfan Ahmad, sufficiently establish the nature of injuries sustained by all the three of them. Ext.Ka-9 the statement of the deceased recorded under Section 161 Cr.P.C. by P.W.6 at the police station when he was in the injured condition immediately after the incident, disclose the specific overt act against the appellants- accused as revealed by the deceased himself. It is true that the trial Court declined to rely upon the said statement by treating it as a dying declaration, while the High Court fully relied upon the said statement as a dying declaration of the deceased. In that respect certain other factors, which are relevant to be stated are that the deceased was 45 years old at the time of his death, as noted by P.W.4 Dr. Irfan Ahmad. P.W.5, Dr. P.V.S. Chauhan, who conducted the postmortem of the deceased, in the course of the cross-examination, categorically stated that because of the injury it cannot be concluded that the injured was unconscious and was not able to speak. He further stated that after getting the injuries in the brain it is not necessary that the injured would immediately go to coma stage and that it cannot be definitely stated within which time a person would reach the state of coma. It is also relevant to state that it has come in the evidence of P.Ws.1 to 3 that the families of the deceased Zahiruddin, as well as his brother P.W.1 were living in the same premises in two different portions. The presence of P.W.3, the niece of the deceased Zahiruddin, at the place and time of occurrence has also been sufficiently stated and corroborated by all the three witnesses.

10. The said statement refers to the incident, which took place seven days prior to the date of occurrence, which formed the motive for the occurrence. It also refers to the presence of all the accused on 05.09.1997 at 3 O’clock in his house and the arms, which were in their possession. It also mentions the presence of P.Ws.1 to 3 at that time. It further states as to how indiscriminate firing was made by the accused, which resulted in the injuries sustained by him, as well as P.Ws.2 and 3. It also refers to the alarm raised by P.W.2 and the rushing in of Mushtaq s/o Defendar and Majeed s/o Panna pursuant to which the appellants- accused went away after making further threats against the victim. Finally, it was stated that he was taken to the police station by his brother P.W.1 in a Jeep.

18. We also wish to add that as on date, there is no statutory prescription as to in what manner or the procedure to be followed for recording a dying declaration to fall within the four corners of Section 32(1) of the Evidence Act. The presence of Magistrate; certification of the doctor as to the mental or the physical status of the person making the declaration, were all developed by judicial pronouncements. As has been repeatedly stated in various decisions, it will have to be found out whether in the facts and circumstances of any case the reliance placed upon by the prosecution on a statement alleged to have been made by the deceased prior to his death can be accepted as a dying declaration, will depend upon the facts and circumstances that existed at the time of making the statement. In that case it would mainly depend upon the date and time vis-à-vis the occurrence when the statement was alleged to have been made, the place at which it was made, the person to whom the said statement was made, the sequence of events, which led the person concerned to make the statement, the physical and mental condition of the person who made the statement, the cogency with which any such statement was made, the attending circumstances, whether throw any suspicion as to the factum of the statement said to have been made or any other factor existing in order to contradict the statement said to have been made as claimed by the prosecution, the nexus of the person who made the statement to the alleged crime and the parties involved in the crime, the circumstance which made the person to come forward with the statement and last but not the least, whether the said statement fully support the case of the prosecution.

25. Having considered the various facts noted by the Trial Court and approved by the High Court in dealing with the above submissions, we hold that the said submission does not impress upon us in order to interfere with the judgment impugned in this appeal. The said question is also, therefore, answered against the appellants.

27. With that when we come to the last of the submissions made on behalf of the appellants, namely, whether there was any scope to hold that the offence would fall under Section 304 Part I or II and not under Section 302 IPC and that no other offence was made out, we can straight away hold that having regard to the extent of the injuries sustained by the deceased, P.Ws.2 and 3 and the aggression with which the offence was committed as against the victims, which resulted in the loss of life of one person considered along with the motive, which was such a petty issue, we are of the firm view that there was absolutely no scope to reduce the gravity of the offence committed by the appellants. We are, therefore, not persuaded to accept the said feeble submission made on behalf of the appellants to modify the conviction and the sentence imposed.

28. For all the above stated reasons, we do not find any merit in this appeal. The appeal fails and the same is dismissed.

July 02, 2013.