RAFIQUE @ RAUF & OTHERSversusSTATE OF U.P.

                     [2013] 7 S.C.R. 293


               RAFIQUE @ RAUF & OTHERS                              A
                               v.
                       STATE OF U.P.
             (Criminal Appeal No. 752 of 2008)
                        JULY 2, 2013
                                                                    B
     [DR. B.S. CHAUHAN AND FAKKIR MOHAMED .
              ·IBRAHIM KALIFULLA, JJ.]

    PENAL CODE, 1860:
                                                                    c
     ss.3021149, 3071149, 452, 148 and 147 - Accused
indulging in indiscriminate firing, causing death of one of their
opponents and injuries to two others - Conviction and life
sentence awarded by courts below - Held: The presence of
the informant and injured witnesses at the place of occurrence      D
has been sufficiently explained - Their evidence and the
statement of the deceased recorded soon after the incident,
the injuryreports and the post-mortem report as well as the
motive clearly bring home the guilt of accused-appellants --
Having regard to the extent of the injuries sustained by            E
deceased, and the witnesses and the aggression with which
the offence was committed, which resulted in the loss of life
of one person considered along with the motive, there is
absolutely no scope to reduce the gravity of the offence
committed by the appellants and to modify the conviction and        F
the sentence imposed - Code of Criminal Procedure, 1973 -
s.161 and s.162(2) - Evidence Act, 1872 - s.32(1).

     Evidence Act, 1872:

     s. 32(1) - Dying declaration - Statement of deceased           G
recorded by police soon after the occurrence - Factors to be
considered to place reliance upon such statement as dying
declaration - Explained - Held: The grievous injuries sustained
by the victim on his vital parts of body and his death within
                              293                                   H
    294     SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A 24 hours, was sufficient to reach a conclusion that whether or
  not he was in the expectation of his death -- The further finding
  of courts below that there was no scope for any manipulation
  at the instance of police also strengthens the reliance placed
  upon by prosecution on the said statement by treating the
B same as a dying declaration - Sub-s. (2) of s.162, CrPC
  makes the position clear that the statement as a dying
  declaration would squarely fall within the said sub-section and
  has to only satisfy the stipulations contained in s. 32(1) of
  Evidence Act- High Court rightly relied upon the said
c statement as a dying declaration, squarely falling within the
  statutory prescription of s. 32(1) of Evidence Act- Penal Code,
  1860 - s.3021149, 3071149, 452, 148 and 147 - Code of
  Criminal Procedure, 1973 - ss.161 and 162(2).

          The eight appellants were prosecuted for
D   commission of offences punishable u/ss 3021149, 149, s.
    307/149, 452, 148 and 147 IPC. The case of the
    prosecution was that 7 days prior to the date of
    occurrence there was some dispute between the children
    of the complainant party and the accused persons over
E   a goat belonging to the accused persons stated to have
    gone into the maize field of 'Z', the brother of PW-1; that
    pursuant to the said incident, on 05.09.1997 at about 3.00
    pm, all the appellants-accused possessed with fire arms,
    entered the house of the 'Z', where P.Ws.1 to 3 were
F   conversing with him, and made indiscriminate firing
    causing firearm injuries to 'Z' and P.Ws.2 and 3; that 'Z'
    and other injured were taken to Kotwali where P.W.1
    lodged the written complaint and the Investigating Officer
    (PW-6) recorded the statement of 'Z' purportedly uls 161
G   Cr.P.C (Ext. Ka-9); that the injured were sent to the
    hospital where 'Z' succumbed to his injuries on the
    following day. The trial court convicted all the accused
    persons ulss 3021149, 307/149,452, 148 and 147 IPC and
    sentenced them to various terms of sentences including
H   life imprisonment uls 3021149. The High Court dismissed
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.            295


their appeal.                                               A

    In the instant appeal filed by the convicts, the .
arguments for the parties boiled down to the following
questions:
    (i) Whether the reliance placed by the High Court on    B
    Ext. K-9 (the recorded statement of the deceased) as
    a dying declaration and the confirmation of the
    conviction on that basis was justified?

    (ii) Whether there was any controversy relating to      c
    place of occurrence in order to doubt the case of the
    prosecution?

    (iii) Whether there was any doubt about the death of
    the deceased?
                                                            D
    (iv) Whether the offence would fall u/s 304 and not
    u/s 302 IPC?
    Dismissing the appeal, the Court.

     HELD: 1.1 It is significant to note that as on date, E
there is no statutory prescription as to the manner or the
procedure to be followed for recording a dying
declaration to fall within the four corners of s. 32(1) of the
Evidence Act. The presence of Magistrate; certification of
the doctor as to the mental or the physical status of the F
person making the declaration, were all developed by
judicial pronouncements. It will have to be found out
whether 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, G
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-a-vis
the occurrence when the statement was alleged to have
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    296    SUPREME COURT REPORTS              [2013) 7 S.C.R.


A 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; his physical and mental condition, the
  cogency with which any such statement was made; the
B attendant circumstances and, whether they throw any
  suspicion as to the factum of the statement said to have
  bee-n· 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
c 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 whether
  the said statement fully supports the case of the
  prosecution. Sub-s.(2) of s.162, CrPC makes the position
0 clear that the statement as a dying declaration would
  squarely fall within the said sub-section and has to only
  satisfy the stipulations contained in s. 32(1) of the
  Evidence Act. [para 18 and 21] [311-A-E; 313-H; 314-A]

      Cherlopa//i Cheliminabi Saheb and Another v. State of
E Andhra Pradesh-(2003) 2 SCC 571, Ohan Smgh v. State of
  Haryana 2010 (8) SCR 794 = (2010) 12 SCC 277; Srii
  Bhagwan v. State of U.P. 2012 (11) Scale 734 - relied on.

       1.2 In the instant case, Ext.Ka-9, the statement of the
F deceased recorded u/s 161 Cr.P.C. by the Investigating
  Officer (P.W.6) at the police station when he was in the
  injured condition immediately after the incident,
  disclosed the specific overt act by the appellants. PW-6
  deposed that the de~eased was fully conscious when he
G was brought injured to the police station. The very fact
  that the deceased who sustained such grievous injuries
  on the vital parts of his body breathed his last in a matter
  of 24 hours, was sufficient to reach a conclusion whether
  or not he expected his death. There could not have been
H any scope to doubt the veracity of his statement as to the
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.             297


manner in which the occurrence took place and the             A
persons who were responsible for the incident in
question. Taking into account the totality of the
circumstances, namely, the motive behind the incident,
the mentioning of the names of the appellants who were
known to the deceased, as all of them belong to the           B
same village, the use of the weapons by the assailants,
the situation in which he was placed at the time when he
made the statement before P.W.6, where he could not
have been tutored to make the statement, having regard
to the time factor, the statement of the doctor {PW-5) who    c
issued the postmortem certificate having come forward
with an expert opinion that in spite of the nature of
injuries sustained the deceased was fully capable of and
was in a mind set to make a statement, sufficiently
demonstrated that Ext.Ka-9 was rightly relied upon by the
                                                              0
High Court as a dying declaration,·squarely falling within
the statutory prescription of s. 32(1) of the Evidence Act.
[para 8 and 22) [304-G-H; 305-A; 314-B-G]
    Khushal Rao v. State of Bombay 1958 SCR 552= AIR
1958 SC 22; In ref· Guruswami Tevar ILR 1940 Mad= {AIR        E
1940 Mad 196; Mohamad Arif v. Emperor AIR 194~ Pat. 409
{J) and Guiabrao Krishnajee v. Emperor AIR 1~45 Nag.
153{K) - referred to.

     2.1 There was no dispute about the fact that the F
occurrence took place in the premises of the deceased,
as well as the complainant {PW-1) and other injured
witnesses {P.Ws.2 and 3). It has come in the evidence of
P.Ws.1 to 3 that the families of the deceased and his
brother {P.W.1) were living in the same premises in two G
different portions. The presence of P.W.3, the niece of the
deceased at the place and time of occurrence has also
been sufficiently stated and corroborated by all the three
witnesses. (para 7-8) [304-C; 305-0-E] ·

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    298     SUPREME COURT REPORTS              [2013] 7 S.C.R.


A      2.2 Nothing was let in on the side of the defence to
  contradict the presence of P.W.1 at the time of
  occurrence, as well as subsequently when the deceased·~
  along with the other injured persons, were taken to the
  police station immediately after the occurrence. There
B was no reason to doubt the presence of the deceased
  and the other injured witnesses at the police station when
  the alleged statement Ext.Ka-9 came to be recorded by
  P.W.6. A reference to the details contained in Ext.Ka-9 is
  in tune with what has been narrated by the eye-
C witnesses P.Ws.1 to 3 before the court. There was
  nothing to contradict the material available on record in
  the form of evidence either documentary or oral in order
  to hold that the deceased, could not have made     f
                                                         the
  statement before P.W.6. As has been noted by the courts
  below, there was no delay involved in reporting the
D occurrence to the police and the registration of the FIR.
  [para 21] [313-D-G]

        3. Keeping in view the evidence of P.Ws.4 and 5, it
  cannot be held that there was any doubt at all as to the
E death of the deceased or the injuries sustained by him
  as noted by P.W.4 in Exts.Ka-2, Ka-3 and Ka-4. The injury
  reports of the deceased, P.W.2 and P.W.3, read along
  with the evidence of the doctor, who had examined them,
  sufficiently establish the nature of injuries sustained by
F all the three. Ext.Ka-3 is related to the deceased. Ext.Ka-
  5 postmortem certificate was issued by P.W.5. Further
  nothing was put to the witnesses with reference. to
  doubts relating to the death of the deceased. Therefore,
  the submission raising doubt in this regard at this stage
G cannot be entertained in order to find fault with the case
  of the prosecution. [para 8 and 26] [304-G; 318-F-H]

        4. As regards the pleas that the offence would .fall u/
    s 304 and not u/s 302 IPC and that no other offence was
    made out, this Court holds that having regard to the
H
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.              299

extent of the injuries sustained by the deceased, P.Ws.2       A
and 3 and the aggression with which the offence was
committed against the victims, which resulted in the loss
of life of one person considered along with the motive,
which was such a petty issue, there is absolutely no
scope to reduce the gravity of the offence committed by        B
the appellants and to modify the conviction and the
sentence imposed. [para 27] [319-A-C]
                    Case Law Reference:
    1958 SCR 552             referred to          para 13      c
    ILR 1940 Mad             referred to          para 14
    AIR 1941 Pat. 409 (J)    referred to          para 14
    AIR 1945 Nag. 153(K) referred to              para 14
                                                               D
    2010 (8) SCR 794         relied on            para 19
    (201 O) 12 sec 211       relied on            para 19
    2012 (11) Scale 734      relied on            para 20
                                                               E·
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 752 of 2008.

    From the Judgment and Order dated 16.08.2007 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
5764 of 2006.                                                  F

    Jaspal Singh, lmtiaz Ahmed, Naghma lmtiaz, Mohd. Asad
Khan (for Equity Lex Associates) for the Appellants.

   Aarohi Bhalla, Ardhendumauli Kumar Prasad for the           G-
Respondent.

    The Judgment of the Court was delivered by

    FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This
appeal by the eight accused who were proceeded against in      H
    300     SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A   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
B   and inflicted with the punishment of life imprisonment for the
    offence under Section 302 read with 149 lPC, 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
c   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
 D 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
·E 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
 F 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
 G 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
 H occurrence after giving further threats.
   RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                301
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

        3. The deceased and other injured were stated to have A .
  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 B
 ·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 C       ,.,
  report of P.W.3 was Ext. Ka-2. The deceased Zahiruddin died
  on the next day, i.e, on 06.p9.1997 at 3:30 pm. The inquest
  memo was Ext. Ka-15 and the postmortem report was Ext. Ka-
  5. P.W.4 Dr. lrfan Ahmad was the doctor who conducted the
  postmortem and issued the postmortem certificate. The D
  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 E
  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 . F
  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 G
  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 thefr defence. It is in the· above-
  stated background the conviction and sentence came to be H
    302     SUPREME COURT REPORTS                   [2013) 7 S.C.R.


A   imposed by the trial Court, which was also affirmed by the High
    Court in toto.

        4. Assailing the judgment impugned, Mr. Jaspal Singh,
  learned senior counsel for the appellants after taking us through
  the relevant evidence on record, as well as the judgments
8 impugned before us submitted that the presence of P.W.1 in
  the place of occurrence was doubtful; that there were
  prevaricating statements by the witnesses about the exact
  place of occurrence; that there were grave doubts as to whether
  all the accused opened fire or only few of them; that having
C regard to the position in which P.Ws.2, 3 and deceased were
  placed at the time of occurrence the occurrence could not have
  been witnessed by the said so called eye-witnesses as
  narrated by them and that though only fire shot injuries were
  said to have been caused, not even a single pellet or an empty
D cartridge was recovered from the scene of occurrence.
  According to the learned senior counsel, there were serious
  doubts as to whether the postmortem report related to the body
  of the deceased. The learned senior counsel also contended
  that the accused were not questioned with reference to the so
E called dying declaration of the deceased in the 313
  questioning. The learned senior counsel, therefore, contended
  that all the above factors created lot of doubts as to the factum
  of the occurrence, as well as the crime and that in any event
  the offence under Section 302 IPC cannot be said to have been
F made out and at best it may fall under Section 304 Part I or II
  and that Section 148 will not apply. According to him, if at all
  the accused had any grievance it could have been only against
  Shamshuddin, but certainly none had any object to kill
  Zahiruddin, the deceased.                  ·
G         5. As against the above submissions, Mr. Aarohi Bhalla,
    learned counsel for the State by referring to the judgment of the
    trial Court contended that after a detailed consideration of the
    stand of the appellants, the trial Court was able to conclude with
    all certainty about the place of occurrence and, therefore, the
H
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                    303
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] ...

said submission made on behalf of the appellants do not merit        A .
any consideration. According to the learned State counsel, the
family of P .W.1 and the deceased were only living in two
different portions of the same building and, therefore, the
submission raising doubts about the place of occurrence does
not merit any consideration. According to him the medical            B
evidence fully established the use of firearm in the incident. The
learned State counsel by making reference to Ext.Ka-15,
inquest report issued by lrshad Ahmad at 10:55, contended
that there was no doubt about the death of the deceased and
the postmortem report relating to his death was also proved.         c
     6. Having heard learned counsel for the respective parties
and having bestowed our serious consideration to the various
submissions made before us, we find that the submissions of
learned counsel for the appellants raise the following questions
for consideration, namely:-                                          D

     I. Whether the reliance placed upon by the High Court on
     Ext.Ka-9, the recorded statement of the deceased
     Zahiruddin, which was relied upon by the High Court as a
     dying declaration and the confirmation of the conviction on     E
     that basis was justified?

     II. Whether there was any controversy relating to the place
     of occurrence in order to doubt the case of the
     prosecution?
                                                                     F
     Ill. Whether there was any doubt about the death of the
     deceased as submitted on behalf of the appellants?

     IV. Whether there was any scope to hold that the offence
     would fall· under Section 304 Part I or II and not under        G
     Section 302 and other offences for which they were
     convicted?

    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       H
    304     SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A 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
a 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
c argument was raised on behalf of the appellants. Even iri 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
0
  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
E 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
F 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
G 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. lrfan Ahmad, sufficiently establish
  the nature of injuries sustained by all the three of them. Ext.Ka-
H 9 the statement of the deceased recorded under Section 161
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                     305
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Cr.P .C~ by P .W.6 at the police station when he was in the injured    A
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         B
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. lrfan Ahmad. P.W.5, Dr. P.V.S. Chauhan, who conducted
the postmortem of the deceased, in the course of the cross-            C
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          D
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 ..:>f P.W.3, the niece of the
deceased Zahiruddin, at the place and time of occurrence has           E
also been sufficiently stated and corroborated by all the three
witnesses.

     9. Keeping the above factors in mind when we examine
the submissions made on behalf of the appellants, as far as            F
the reliance placed upon by the High Court in the impugned
judgment on Ext.Ka-9 by treating it as a dying declaration, the
High Court has noted the details mentioned in the said exhibit
by extracting the same in the judgment impugned, which is to
the following effect:                                                  G
     "On the west sid.e of my house, there is field of corn crop
     wherein 7 days prior to today i.e. 5.9.97, the goats of my
     co-villager Massok s/o Altaf had entered. My younger son
     Ezaz, aged 7 years.had caught goat and was taking the
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    306       SUPREME COURT REPORTS                    [2013] 7 S.C.R.


A         same away on which Massok had freed the goat and
          started to take away my son, on which we came to know
          and I asked him not to do so that you are making the goat
          to eat the crop and simultaneously you are taking my son
          also away, it is not the right thing, on which they hurled
B         abuses. Today on 5.9.97 I was sitting in the verandah of
          my house that suddenly around 3 o'clock Rauf, lshtiyaq,
          Ataullah, Ayub, Pauva alias Pappu, Latif sons of Massok,
          Nisar s/o Farukh and Karim s/o Rauf came there out of
          them Latif was carrying Adhi and Rauf was carrying desi
c         gun and others were carrying tamancha, and they came
          to my house climbing the stairs, my brother Shamsuddin,
          my wife Zabira and Mushtaq's daughter Shehnaz also
          present there. All the accused persons after arriving started
          firing indiscriminately on myself and my family members
          with an intention to kill us, on sustaining injuries I fell down
D
          on the ground and my wife and Shehnaz d/o Mushtaq also
          sustained pellet injuries. Then we raised alarm, hearing the
          same Shamsuddin, who had gone out of the house and
          Mushtaq s/o Defendar and Majeed s/o Panna came there
          and challenged the accused persons on which the accused
E         persons went away towards their house. The accused
          persons were threatening of dire consequences. The
          accused persons had fired from close distance. I have
          sustained grievous injuries on different part of my body. My
          voice is becoming unclear, and my brother Shamsuddin
F         has brought me to Thana on jeep."

        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
G 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
H refers to the alarm raised by P.W.2 and the rushing in of
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                   307
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Mushtaq s/o Defendar and Majeed s/o Panna pursuant to which          A
the appellants-accused went away after making further threats
against the victim. Finally, it was stated that he was taken to
t~e police station by his brother P.W.1 in a Jeep.

     11. The important question for consideration, therefore, is
                                                                    8
whether the said statement made by the deceased can be
taken as a dying declaration and reliance can be placed upon
the same. The High Court while relying upon the said statement
has noted certain circumstances, namely, the evidence of
P.W.6, Investigating Officer, who deposed that the deceased
was fully conscious when he was brought to the police station C
with injuries on his face, chest and other parts of the body and
that he recorded his statement. It was also noted that after
recording his statement the Investigating Officer referred him
to the hospital for medical examination and treatment. The Hligh
Court, thereafter, noted the evidence of P.W.5 the postmortem D
doctor who categorically stated in his cross-examination that
the injured was also in a position to speak and that it was not
necessary that in all cases after sustaining injury in the brain a
person cannot retain his conscience or will not be in a position
to speak. The High Court noted the further statement. of the E
doctor that it is not necessary that in every such case the patient
would immediately go to a coma stage.

      12. The High Court, therefore, reached a conclusion that
the deceased Zahiruddin, was in a position to speak and that         F
the statement under Ext.Ka-9 was given by him who expired
on the next day evening. It further stated that since it was the
last statement of the deceased to the Investigating Officer it can
very well be treated as a dying declaration. The High Court was
conscious of the fact that the trial Court did not place any
reliance on the said statement which in the opinion of the High      G
Court was erroneous.

     13. In this context when we make reference to the statutory
provisions concerning the extent of reliance that can be placed
upon the dying declaration and also the implication of Section       H
    308     SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A 162(2) Cr.P.C. vis-a-vis Section 32(1) of the Evidence Act,
  1872, we feel that it will be appropriate to make a reference to
  the decision of this Court reported in Khushal Rao vs. State
  of Bombay- AIR 1958 SC 22. Justice Sinha speaking for the
  Bench after making further reference to a Full Bench decision
B of the High Court of Madras headed by Sir Lionel Leach, C.J.,
  a decision of the Judicial Committee of the Privy Council and
  'Phipson on Evidence' - 9th Ed., formulated certain principles
  to be applied to place any reliance upon such statements. We
  feel that the substance of the principles stated in the Full Bench
C decision and the Judicial Committee of the Privy Council and
  the author Phipson's view point on accepting a statement as
  dying declaration can also be noted in order to understand the
  principles ultimately laid down by this Court in paragraph 16.

        14. The Full Bench of the Madras High Court reported in
D In re, Guruswami Tevar - ILR 1940 Mad 158 at page 170 (AIR
  1940 Mad 196 at p.200) in its unanimous opinion stated that
  no hard and fast rule can be laid down as to when a dying
  declaration should be accepted, except stating that each case
  must be decided in the light of its own facts and other
E circumstances. What all the Court has to ultimately conclude is
  whether the Court is convinced of the truthfulness of the
  statement, notwithstanding that there was no corroboration in
  the true sense. The thrust was to the position that the Court must
  be fully convinced of the truth of the statement and that it should
F not give any scope for suspicion as to its credibility. This Court
  noted that the High Court of Patna and Nagpur also expressed
  the same view in the decisions reported in Mohamad Arif vs.
  Emperor" AIR 1941 Pat.409 (J) and Gulabrao Krishnajee vs.
  Emperor - AIR 1945 Nag. 153 (K).
G        15. The Judicial Committee of the Privy Council while
    dealing with a case, which went from Ceylon, which was based
    on an analogous provision to Section 32(1) of the Indian
    Evidence Act, took the view that apart from the evidence of the
    deceased the other evidence was not sufficient to warrant a
H
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                     309
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
conviction. It was, however, held that in that case when the           A
statement of the deceased was received and believed as it
evidently was by the jury it was clear and unmistakable in its
effect and thereby, the conviction was fully justified and was
inevitable. The Judicial Committee noted that the factum of a
murderous attack, though resulted in the cutting of the throat and     B
the victim was not in a position to speak but yet by mere signs
she was able to convey what she intended to speak out, and
the said evidence was brought within the four corners of the
concept of dying declaration, which formed the sole basis
ultimately for the Court to convict the accused, which was also        c
confirmed by the Supreme Court of Ceylon, as well as by the
Judicial Committee of the Privy Council.

    16. The author Phipson in his 9th Ed., of the book on
Evidence made the following observations:
                                                                       D
     "...... The deceased then signed a statement implicating the
     prisoner, but which was not elicited by question and
     answer, and died on March 20. It was objected that being
     begun in that form, it was inadmissible:- Held (1) the
     questions and answers as to his state of mind were no part        E
     of the dying declaration; (2) that even if they were, they only
     affected its weight, not its admissibility; and (3) that the
     declaration was sufficient, without other evidence, for
     conviction R. v. Fitzpatrick, (1910) 46 Ir. LT. 173 (M)."
                                                                       F
    17. After considering the above legal principles, this Court
has set down the following six tests to be applied for relying
upon a material statement as a dying declaration:

     "16. On a review of the relevant provisions of the Evidence
     Act and of the decided cases in the different High Courts G
     in India and in this Court, we have come to the conclusion,
     in agreement with the opinion of the Full Bench of the
     Madras High Court, aforesaid, (1) that it cannot be laid
     down as an absolute rule of law that a dying declaration
     cannot form the sole basis of conviction unless it is H
    310      SUPREME COURT REPORTS                   [2013) 7 S.C.R.


A         corroborated; (2) that each case must be determined on
          its own facts keeping in view the circumstances in which
          the dying declaration was made; (3) that it cannot be laid
          down· as a general proposition that a dying declaration is
          a weaker kind of evidence than other pieces of evidence;
B         (4) that a dying declaration stands on the same footing as
          another piece of evidence and has to be judged in the light
          of surrounding circumstances and with reference to the
          principles governing the weighing of evidence: (5) that a
          dying declaration which has been recorded by a
c         competent magistrate in the proper manner. that is to say,
          in the form of questions and answers. and. as far as
          practicable. in the words of the maker of the declaration.
          stands on a much higher footing than a dying declaration
          which depends upon oral testimony which may suffer from
D         all the infirmities of human memorv and human character.
          and (6) that in order to test the reliability of a dying
          declaration. the Court has to keep in view the
          circumstances like the opportunity of the dying man for
          observation. for example. whether there was sufficient light
          if the crime was committed at night; whether the capacity
E
          of the man to remember the facts stated had not been
          impaired at the time he was making the statement, by
          circumstances beyond his control; that the staternent has
          been consistent throughout if he had several opportunities
          of making a dying declaration apart from the official record ·
F         of it; and that the statement had been made at the earliest
          opportunity and was not the result of tutoring by interested
          parties." (Emphasis added)

       18. We also wish to add that as on date, there is no
G 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
H developed by judicial pronouncements. As has been repeatedly
   RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                   311
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

 stated in various decisions, it will have to be found out whether   A
 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.     B
 In that case it would mainly depend upon the date and time vis-
 a-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 s~quence of events,
 which led the person concerned to make the statement, the           c
 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        0
 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    E
 fully support the case of the prosecution.

         19. In this context, we can also make a reference to a
  decision of this Court reported in Cher/opal/i Cheliminabi
   Saheb and Another vs. State of Andhra Pradesh - (2003) 2
. SCC 571, where it was held that it was not absolutely              F
  mandatory that in every case a dying declaration should be
  recorded only by a Magistrate. The said position was reiterated
  in Ohan Singh vs. State of Haryana - (2010) 12 SCC 277
  wherein, it was held that neither Section 32 of the Evidence Act
  nor Section 162(2) of the Cr.P.C., mandate that the dying          G
  declaration has to be recorded by a designated or particular
  person and that it was only by virtue of the development of law
  and the guidelines settled by the judicial pronouncements that
  it is normally accepted that s~ch declaration would be recorded
  by a Magistrate or by a doctor to eliminate the chances of any     H
    312      SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A doubt or false implication by the prosecution in the course of
  investigation.

         20. In a recent decision of this Court reported in Sri
    Bhagwan vs. State of U.P. - 2012 (11) SCALE 734, to which
    one of us was a party, dealt with more or less an identical
8
    situation and held as under in paragraphs 21 and 22: .

          "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
c         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
D         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
E         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
F         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
G         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
H         force was perfectly justified. We say so because no other
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                  313
   [FAKKIR MOHAMED IBRAHIM KALIFULLA. J.]
    conflicting circumstance was either pointed out or             A
    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          B
    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      C
    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."
                                                                   D
     21. In the case on hand nothing was let in on the side of
the defence to contradict the presence of P.W.1 at the time of
occurrence, as well as subsequently when the deceased along
with the other injured persons, were taken to the police station
immediately after the occurrence. There was no reason to doubt     E
the presence of the deceased and the other injured witnesses
at the police station when the alleged statement Ext.Ka-9 came
to be recorded by P.W.6. A reference to the details contained
in Ext.Ka-9 is in tune with what has been narrated by the eye-
witnesses P.Ws.1 to 3 before the Court. There was nothing to       F
contradict from the material available on record in the form of
evidence either documentary or oral in order to hold that the
deceased, could not have made the statement before P.W.6.
As has been noted by the courts below, there was no delay
involved in reporting the occurrence to the police and the         G
registration of the FIR. The further finding of the courts below
that there was no scope for any manipulation at the instance
of the police also strengthens the reliance placed upon by the
prosecution on Ext.Ka-9, by treating the same as a dying
declaration. When we apply Section 162(2), the statute makes
                                                                   H
    314      SUPREME COURT REPORTS                 [2013] 7 S.C ..R.


A the position clear that the statement as a dying declaration
  would squarely fall within the said provision and has to only
  satisfy the stipulations contained in Section 32(1).

           22. Keeping the above factors in mind, when we apply
    Section 32(1) to Ext.Ka-9 we find it, mentioned in every one of
8
    the details of the case of the prosecution, which ultimately
     resulted in the death of the deceased Zahiruddin, as well as
    the injuries sustained by P. Ws.2 and 3, which fell for
    consideration before the courts below. The very fact that the
    deceased who sustained such grievous injuries on the vital
C    parts of his body on 05.09.1997 at 3:00 pm, breathed his last .
    on 06.09.1997 at 3:30 pm, i.e. in a matter of 24 hours, was
    sufficient to reach a conclusion that whether or not he was in
    the expectation of his death, there could not have been any
    scope to doubt the veracity of his statement as to the manner
D   in which the occurrence took place and the persons who were
     responsible for the incident in question. Taking into account the
    totality of the circumstances, namely, the motive behind the
    incident, the mentioning of the names of the appellants who
    were known to the deceased, as all of them belong to the same
E   village, the use of the weapons by the assailants, the situation
    in which he was placed at the time when he made the
    statement before P.W.6, where he could not have been tutored
    to make the statement, having regard to the time factor, the
    further statement of the doctor who issued the postmortem
F   certific;ate having come forward with an expert opinion that in
    spite of the nature of injuries sustained the deceased was fully
    capable of and was in a mind set to make a statement,
    sufficiently demonstrated that Ext.Ka-9 was rightly relied upon
    by the High Court as a dying declaration, squarely falling within
G   the statutory prescription of Section 32(1) of the Evidence Act,
    in order to rely upon the same for convicting the appellants. We
    are, therefore, convinced that such reliance placed upon by the
    High Court was perfectly justified and we do not find any good
    grounds to differ from the same. We, therefore, conclude and
H   answer the said question in favour of the prosecution.
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                   315
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

       23. When we come to the other question as to whether          A
there was any controversy relating to the place of occurrence
in order to doubt the case of the prosecution, Mr. Jaspal Singh,
learned senior counsel appearing for the appellants contended
that in the FIR the complainant P.W.1 himself stated that he
came later and that the incident took place in his house; that       B
the staircase in the house was leading upto the first floor; that
the place where the incident took place was a narrow one; that
he was not certain as to whether all the accused opened fire
or one or two alone opened fire; that the firing took place only
for a minute; that when the accused entered the place P.Ws.2         c
and 3, as well as the deceased were facing north and that in
another place he stated that the deceased was present on the
roof and that no pellets were seen on the wall, nor any empty
cartridge was recovered. The learned counsel by referring to
the evidence of P.W.2 submitted that according to her she was
                                                                     0
in her house and that P.W.1 came later. It was pointed out that
the staircase inside the house led upto the second floor, while
 P.Ws.2 and 3 and the deceased were in the Verandah of the
third floor, that the house of P.W.1 was on the eastern side of
the house of P.W.2, that the directions mentioned by her as to
 how the parties were positioned at the time of occurrence, were     E
 all circumstances, which go to show that there was no cogency
 in the evidence of the so called eye-witnesses to confirm that
the occurrence took place at the place and in the manner as
 narrated by them.
                                                                     F
     24. While making reference to the above submissions, we
only state that all the above submissions were considered
threadbare by both the courts below. In the High Court the so
called contradictions referred to on behalf of the appellants were
considered in detail in the following paragraphs and ultimately      G
rejected by stating as under:

     "Much emphasis was laid on the contradictions regarding
     place of occurrence. According to the prosecution case,
    the incident took place in the verandah of the house. Some
                                                                     H
    316      SUPREME COURT REPORTS                    [2013] 7 S.C.R.


A         contradictory statements have been given by the
          eyewitnesses regarding the situation of verandah. The 1.0.
          prepared the site plan, Ext.Ka-6, in which he has marked
          the place of occurrence by letter 'X'. From letter 'A' the
          accused persons had made fire, at place 'P' he got the
B         pellets and from place A-1, L, B, the witnesses had seen
          the occurrence. According to the site plan Ext.Ka-6, the
          place of occurrence was the third floor of the house. This
          house was three storied. The 1.0. has shown 1st floor, 2nd
          floor and 3rd floor in his site plan, meaning thereby,
c         technically speaking, the ground floor has been shown as
          1st floor and 1st floor as 2nd floor and 2nd floor as 3rd
          floor. There was also misunderstanding between
          eyewitnesses regarding narration of the storeyes of the
          house. The witnesses were the illiterate rustic villagers who
          did not know the difference between storey and floor. The
D
          ground floor is narrated as 1st storey or 1st floor. We are
          of the opinion that the 1.0. had made negligence in
          preparing site plan and did not show important things in
          it. For example, he has not shown the house of PW-1
          Shamshuddin in the site plan. He has also not described
E         in the site plan that the 2nd and 3rd storey of the house
          was in the level of agricultural field situate towards west
          or the ground floor or 1st floor was situate on the low level
          of the agricultural field situate towards west or the ground
          floor or 1st floor was situate on the low level of the
F         agricultural field situate towards west.

          PW-1 Shamshuddin, the real brother of the deceased has
          stated in his cross-examination that the house of the
          deceased was three storeyed. There was a 'Zeena' in the
G         second storey of the house but there was no 'Zeena' in the
          2nd storey. Further he has stated that in the 3rd storey there
          were three rooms and verandah but later on he has stated
          that three rooms and verandah were situated in the 2nd
          storey and in the 3rd storey there were two rooms and one
          verandah, in which the incident took place. Further, he has
H
  RAFIQUE @ RAUF & OTHERS v. STATE OF U.P.                  317
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    stated that 'Zeena' was present on the second storey of A
    the house from where the accused persons entered the
    Verandah.

    PW-2 Smt. Zabira has stated in her cross-examination that
    the third storey of the house was in the level of agricultural
                                                                   8
    field situate towards west. Further, she has stated that the
    incident had taken place in the 3rd storey of the house.

    PW-3 Smt. Shahnaz has stated in her cross-examination
    that in the second storey of the house there was no room
    but it was in the shape of verandah. Further, she has stated C
    that the incident had taken place in the 2nd storey of the
    house. Further, she has stated that the 'Zeena' was situate
    in the 2nd storey of the house, which was in the level of
    the agricultural field situate towards west.
                                                                   D
    The learned Trial Court has made a detailed discussion
    over the said contradictions and he has given a finding that
    due to illiteracy and rustic background some contradictions
    have come in their statements. The 1.0. found blood in the
    'Verandah' of the third storey. He also found some pellets E
    there. He had prepared memo Ext.Ka-7. It is also said that
    the incient had taken place in the 'Verandah' of the third
    storey of the house. PW-2 Smt. Zabira has clearly stated
    in her cross-examination that at the time of the incident all
    the injured were sitting in the 'Verandah' of the third storey.
    Thus, the place of occurrence was not doubtful."                F

    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 G
impugned in this appeal. The said question is also, therefore,
answered against the appellants.

    26. The next question that arises for consideration is as
to whether there was any doubt about the death of the              H
    318      SUPREME COURT REPORTS                   [2013] 7 S.C.R.


A   deceased, as submitted on behalf of the appellants. Mr. Jaspal
    Singh, learned senior counsel in his submissions referred to the
    evidence of P.W.4, Dr. lrfan Ahmad, who examined the injured
    including the deceased at 5:45 pm on 05.09.1997 and
    contended that according to the doctor all the injuries were
B caused by firearm, that such injuries might have been caused
    from the distance of 40 feet, that the injuries were on· the front
    side, that there was no injury on the head as compared to the
    evidence of P.W.5, the postmortem doctor, who stated
  . categorically that injury No.1 was on the right side of the head,
c which might have been caused by Lathicharge, which was also
    the version of P.W.3. The learned counsel made further
    reference to Ext.A-18 by which the death of the deceased was
    communicated by the doctor to the police station for conducting
    a postmortem and the postmortem held on 07.09.1997. By
    making further reference to Ext.Ka-5, the postmortem report,
0
    which was issued by U.H.M. Hospital, Kanpur by one Dr. B.S.
    Chauhan while the name of P.W.5 the postmortem doctor who
    gave evidence was mentioned as Dr. P.V.S. Chauhan of Ursala
    Hospital, Kanpur, the learned counsel submitted that there were
E serious doubts as to whether it related to the corpse of the
    deceased and the concerned postmortem report really related
   ,to the deceased Zahiruddin in this case. Though, in the first
    blush, the said contention made on behalf of the appellants
    appear to be of some substance, on a close reading of the
    evidence of P.Ws.4 and 5, we find that such instances pointed
F out by learned counsel were all of insignificant factors and
    based on such factors it cannot be held that there was any doubt
    at all as to the death of the deceased or the injuries sustained
    by him as noted by P.W.4 in Exts.Ka-2, Ka-3 and Ka-4. Ext.Ka-
    3 is related to the deceased. Ext.Ka-5 postmortem certificate
G was issued by P.W.5. We should also state that nothing was
    put to the above said witnesses with reference to those alleged
    doubts relating to the death of the deceased Zahiruddin. We
    are not, therefore, inclined to entertain the said submission at
    this stage in order to find fault with the case of the prosecution.
H
  RAFIQUE@ RAUF & OTHERS v. STATE OF U.P.                319
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
      27. With that when we come to the last of the submissions A
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, s
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       c
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         D
dismissed.

R.P.                                      Appeal dismissed.