Kalua and Another vs State of U.P.

B.N. Katju, J.—Kalua and Hafeez have filed criminal appeal No. 870 of 1977 and Mohammad Saeed alias Saidu has filed criminal appeal No. 873 of 1977 against the judgment of the Sessions Judge, Bulandashahr dated 30-4-1977 passed in connected session trials Nos. 298 of 1976 and 369 of 1976 convicting them u/s 302/34 IPC and sentencing them to life imprisonment.

The case of the prosecution as narrated by Mohammad Saddiq (PW 1) is that Mohammad Shafi deceased was with him on the day of occurrence. Kalua Appellant wanted to employ the deceased and send him to Bombay where the buffaloes and bullocks were sent but the deceased did not want to go to Bombay. On 2-5-1976 at about 2 P.M. Mohammad Shafi deceased brought fodder on a buffal cart and parked the said cart under a Peepal tree in Mohalla Sarai Kazi in the city of Bulandshahr. After he had carried a bag of fodder to the house of Mohammad Saddiq (PW 1) and was coming back and had reached in front of the house of Kamalu the three Appellants surrounded him and Kalua Appellant told the deceased that he would teach him a lesson for not working with him. Hafeez Appellant then caught the bands of the deceased and Kalua and Mohammad Saeed Appellants assaulted him with knives. The deceased after receiving injuries raised an alarm and jumped from the cart. When the witnesses challenged the Appellants they ran. An attempt was made by the witnesses to catch them but it was unsuccessful. The deceased was thereafter taken by Mohammad Saddiq (PW) to the hospital where his injuries were examined by Dr. S.S. Das (PW 5) at 3.50 p.m.

The dying declaration of the deceased was recorded by Bam Kripal Singh Magistrate (PW 7) between 5.15 and 5.35 p.m. on the same day (2-5-76) which runs as follows:

Bahalaf bayan kiya ki chakku Saeed urf Sadu va Kallu bap ka nam Ibban ne mara hai. Wah napar ki gathari lekar ke ghar dalne aya tha. Ek gathari Bhaisa thela me rakkhi thi. Isi beech Hafeez wa Saeed wa Kallu ne Kaha ki wah unke yahan naukari kare. Ma karne par use jan se mar dege. Isi beech nana karne per Hafeez ne kaha ki usko Chakku maro. Saeed wa Kallu ne Chakku mare. Inhone gali galauj bhi baki thi. Maine koee gali nahin dithi. Kam unke yahan se chhorane par we log ranjish mante the. Maine kisika jhonths nahin nahin liya hai. Aur koee bat nahin kahani hai.

The deceased died at 6 p.m. on the same day (2-5-1976).

The postmortem examination was conducted by Dr. Aqil Ahmad (PW 3) on 3-5-1976 at 11.40 a.m. and the under mentioned antemortem external injuries were found on his body:

Incised wound 1 1/2" x 1" muscle on inner side of right thigh 2" below right inguinal line.

Stab wound 1 1/2" x 3/4" x chest cavity, 3 1/2" below right nipple at 6''O clock position.

Abrasion 3 1/2" x 1/4" on left forearm extending upto elbow.

Three small abrasions on outer aspect of left arm.

Incised wound 2" x 1/2" x muscle on right arm 1" above elbow.

Incised wound 1" x 1/2" x bone on upper margin of right scapula.

Incised wound 1 1/2" x 1/2" x bone deep, middle of right scapula.

On internal examination the liver and the gall bladder were found to be cut.

In the opinion of Dr. Aqil Ahmad (PW 3) the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death.

The prosecution examined two eye witnesses, namely, Mohammad Saddiq (PW 1) and Mohammad Hanif (PW 2).

Ram Kripal Singh Magistrate (PW 7) proved the dying declaration of the deceased recorded by him.

All the Appellants pleaded not guilty and stated that they were implicated falsely due to enmity.

The trial Court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the Appellants and convicted and sentenced them as mentioned earlier.

Ram Kripal Singh Magistrate PW 7 deposed that on 2-5-1976 he was posted as Executive Magistrate in the city of Bulandshahr. He recorded the dying declaration of Mohammad Shafi deceased (Ext. Ka. 15) on that day at 5.15 P.M. in the presence of Dr. S.S. Das PW 5. After the dying declaration was recorded Dr. S.S. Das PW 5 certified that the deceased was mentally fit to make the dying declaration. It was stated by him that he put questions to the deceased and recorded the statement of the deceased. No one else was present near the deceased when his statement was recorded by him. The statement of the deceased was recorded in about twenty minutes. Nothing has been brought out in his cross-examination to demolish his testimony. In our opinion his evidence is wholly reliable.

Dr. S.S. Das PW 5 deposed that he examined the injuries of Mohammad Shafi deceased at 3.50 P.M. on 2-5-1976 in the district hospital at Bulandshahr and prepared the report Ext. Ka. 7. The dying declaration of the deceased was recorded by the Magistrate at 5.15 P.M. on the same day in his presence. The deceased was conscious and was in a fit condition to make his statement. He proved his certificate Ext. Ka. 8 on the dying declaration. Nothing has been brought out in his cross-examination to shake his credit. In our opinion his evidence is also wholly reliable and corroborates the evidence of Ram Kripal Singh Magistrate PW 7 regarding the recording of the dying declaration of the deceased.

It is thus established that the dying declaration Ext. Ka. 15 was made by the deceased to Ram Kripal Singh Magistrate PW 7. Considering the fact that the incident took place in broad day light the deceased must have recognised his assailants. It is difficult to believe that he would have omitted his real assailants and would have implicated the Appellants falsely. It was stated by the deceased in his dying declaration that he was assaulted by Kalua and Mohammad Saeed Appellants with knives which is fully supported by the medical evidence. The deceased has also mentioned the motive for the assault on him by the Appellants in his dying declaration. In our opinion the dying declaration of the deceased is wholly reliable.

Mohammad Saddiq PW 1 narrated the prosecution case regarding the incident as mentioned earlier. His testimony appears to have been wrongly rejected by the trial Court. It is important to note that his presence at the time of the incident is strongly supported by the fact that the first information report lodged by him mention the same names of the Appellants which were mentioned by the deceased in his dying declaration and the first information report also mentions the same motive for the assault which is mentioned in the dying declaration. If Mohammad Saddiq PW 1 was not present at the time of the incident It is difficult to understand how the same names of the Appellants and the same motive for the assault on the deceased would have been mentioned by him in the first information report. It may be mentioned that it was stated by Ram Kripal Singh Magistrate PW 7 that no one was present near the deceased when he recorded the dying declaration of the deceased. Mohammad Saddiq PW 1 could not have thus known the contents of the dying declaration prior to the lodging of the first information report by him. It is true that it was stated by Mohammad Saddiq PW 1 that a copy of the first information report was not given to him by the Head Moharrir at the time of the lodging of the report but was given to him at night on the same day and that a copy of the first information report was not sent to Dr. Mohammad Aqil PW 3 along with the other documents for conducting the postmortem examination but from this it cannot be inferred that the first information report was not lodged by Mohammad Saddiq PW 1 at 4.40 P.M. on 2-5-1976. It is significant to note that no question was put to Head Moharrir Sangram Singh PW 4 regarding the sending of the special report. He was also not asked in his cross-examination as to when he gave a copy of the first information report to Mohammad Saddiq PW 1. It is also true that it is mentioned in the first information report that the deceased was assaulted by the Appellants when he reached mohalla Sarai Qazi whereas in the statement made by Mohammad Saddiq PW 1 in the trial Court it is mentioned that the deceased was assaulted in front of the house of Kamalu when he was returning after having kept one bag of fodder at the house of Mohammad Saddiq PW 1 but in our opinion this discrepancy is not of a material nature. It is also true that it was stated by Dr. S.S. Das PW 5 that the deceased was brought to the hospital by his brother Abdul Rashid but from this it cannot be inferred that the deceased was not taken from the place of occurrence to the hospital by Mohammad Saddiq PW 1 as stated by him in the trial Court as it is quite possible that Abdul Rashid may have reached the hospital after the deceased had reached there and Dr. S.S. Das PW 5 may have mentioned him as the person who had brought the deceased as he was his brother. It was stated by Mohammad Saddiq PW 1 that be took the deceased to the hospital within half an hour of the incident but from this also it cannot be inferred that Mohammad Saddiq PW 1 was not present at the time of the incident as it is quite possible that Mohammad Saddiq PW 1 has no idea of time as he appears to be illiterate. The incident could have taken place not exactly at 2 P.M. but about half an hour or forty minutes later. In these circumstances the deceased would have been brought to the hospital by Mohammad Saddiq PW 1 after the incident at 3.50 P.M. on the day of occurrence. It is true that Mohammad Saddiq PW 1 is distantly related to the deceased but there does not appear any adequate reason for him to implicate the Appellants falsely. In our opinion the evidence of Mohammad Saddiq PW 1 is reliable and established that the Appellants took part in assaulting the deceased at the time of the incident.

Mohammad Hanif PW 2 corroborated the evidence of Mohammad Saddiq PW 1 regarding the incident. It was stated by him that on the day of incident at about 2 P.M. while he was going from Kasai Bara towards mohalla Sarai Qazi he witnessed the incident. He is mentioned as an eye witness in the first information report and the explanation given by him for his presence at the time of the incident appears to be satisfactory. It is true that he is a relation of Mohammad Saddiq PW 1 but this is not sufficient to reject his testimony. It may be mentioned that there was also no adequate reason for him to implicate the Appellants falsely. Nothing has been brought out in his cross-examination to shake his credit. In our opinion his evidence is also reliable and establishes the participation of the Appellants in the incident.

It may be mentioned that in the dying declaration of the deceased it has not been stated that Hafeez Appellant had caught his bands at the time of the incident which was stated by Mohammad Saddiq PW 1 and Mohammad Hanif PW 2. In our opinion this discrepancy is of no importance as it is quite possible that Hafeez Appellant may have caught the hands of the deceased for a short time before he was assaulted by Kalua and Mohammad Saeed Appellants and the deceased may not have mentioned this in his dying declaration. The deceased has mentioned in his dying declaration that all the three Appellants had told him at the time of the incident that he should work at their place otherwise he would be killed and when he refused Hafeez Appellant said that he should be assaulted with knife. Mohammad Saddiq PW 1 and Mohammad Hanif PW 2 on the other hand stated in trial Court that at the time of the incident Kalua Appellant told the deceased that he would teach him a lesson for not working with him. We are also not prepared to attach any importance to this discrepancy as it is quite possible that Mohammad Saddiq PW 1 and Mohammad Hanif PW 2 may not have heard distinctly all that the Appellants had said before the deceased was assaulted by Kalua and Mohammad Saeed Appellants with knives as they were not very near the place of occurrence but were standing at a distance of fifty paces from the place of occurrence at the time of the incident.

The result, therefore, is that the dying declaration of the deceased coupled with the evidence of Mohammad Saddiq (PW 1) and Mohammad Hanif (PW 2) establishes that the Appellants participated in assaulting the deceased at the time of the incident.

It was contended by the learned Counsel for the Appellants that Section 32(1) of the Evidence Act is ultravires the Constitution as it is in conflict with Article 14 of the Constitution. There is no force in this contention. Section 32(1) of the Evidence Act relates to dying declaration made by a deceased person with respect to the transaction resulting in his death. The Legislature in its wisdom made the aforesaid statement of the deceased admissible in evidence out of necessity as the deceased is not available during the trial to give evidence and solemnity is attached to such statements as they are made usually when a person has received grievous injuries which are likely to cause death. The persons whose evidence is admissible u/s 32(1) of the Evidence Act thus form a separate class and their classification is also reasonable. Moreover the Court has to determine the reliability of the evidence admissible u/s 32(1) of the Evidence Act on the same principles on which the reliability of other evidence is determined. It is noteworthy that Section 158 of the Evidence Act mentions the matters which may be proved in connection with the proved statement relevant u/s 32(1) of the Evidence Act. It is mentioned therein that all matters may be proved in order to contradict or to corroborate it or in order to impeach or confirm the credit of the maker of the statement u/s 32(1) of the Act which might be proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. In these circumstances Section 32(1) of the Evidence Act does not violate Article 14 of the Constitution as it cannot be held to be discriminatory or arbitrary.

The question that remains to be considered is regarding the offence committed by the Appellants. The dying declaration of the deceased which has been held by us to be wholly reliable mentions that at the time of the incident all the three Appellants told him to work with them otherwise he would be killed and when he refused Hafeez Appellant said that he should be assaulted with knives and thereafter Kalua and Mohammad Saeed Appellants assaulted the deceased with knives. It is thus clear that the assault on the deceased with knives by Kalua and Mohammad Saeed Appellants followed the instigation by all the Appellants firstly to kill him and then by Hafeez Appellant to assault him with knives. In these circumstances the common intention of the Appellants was to commit the murder of the deceased. They were, therefore, rightly held guilty by the trial Court u/s 302/34 IPC.

For the reasons given above there is no merit in both the appeals Nos. 870 of 1977 and 873 of 1977 which are accordingly dismissed.

All the three Appellants, namely, Kalua, Hafeez and Mohammad Saeed are on bail. They shall be taken into custody forthwith to serve out the sentence awarded to them.

Appeals dismissed.