Umar and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Since both these appeals i.e. (Criminal Appeal No. 93 of 2015-Mohd. Umar V. The State of U.P.) and (Criminal Appeal No. 283 of 2015- Rafeeq V. The State of U.P.) arise out of a common judgment, therefore, the same are being disposed of by a common judgment.

Sri Atul Verma, learned counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate were heard.

Criminal Appeal No. 93 of 2015 has been preferred by the appellant-Mohd. Umar and Criminal Appeal No. 283 of 2015 has been preferred by the appellant Rafeeq challenging the judgment and order dated 13.01.2015 passed by learned Additional Sessions Judge, Court No. 7, Sitapur, in Sessions Trial No. 692 of 2004, arising out of Case Crime No. 2170 of 2003, Police Station Kotwali, District Sitapur, whereby both the appellants were convicted and sentenced as under:-

"(i) Under Section 302/149 IPC- Imprisonment for life alongwith fine of Rs. 10,000/- each with default stipulation of one year additional imprisonment.

(ii) Under Section 307/149 IPC- Ten years'' rigorous imprisonment alongwith fine of Rs. 5000/- each with default stipulation of three months additional imprisonment.

(iii) Under Section 452 IPC- Seven years'' rigorous imprisonment alongwith fine of Rs. 3000/- each with default stipulation of two months'' additional imprisonment.

(iv) Under Section 147 IPC- Two years'' rigorous imprisonment alongwith fine of Rs. 500/- each with default stipulation of one month additional imprisonment.

(v) Under Section 148 IPC- Three years'' rigorous imprisonment alongwith fine of Rs. 500/- each with default stipulation of one month additional imprisonment."

However, by the same judgment the other accused persons who took their trial alongwith present appellants namely Shanekdar, Zeeshan and Ishaq were acquitted of the charges levelled against them.

In brief, the case of the prosecution as disclosed in the FIR was that the complainant Shakila alias Marjina Khatoon lodged an FIR scribed by Mohd. Ikram Ansari at the Police Station Kotwali, District Sitapur on 16.12.2003 at 8:15 AM alleging therein that her husband Mohd. Zabir Ali had expired one year prior to the incident due to heart attack. After the death of her husband the nephews of her husband namely Babar, Shanekdar and Zeeshan were trying to grab the property of her husband and they started harassing the complainant. They also filed several civil cases in the court. On 16.12.2003 in the morning at about 7:00 A.M. Shanekdar, Zeeshan, Rafeeq, Mohd. Ishaq and Mohd. Umar armed with countrymade pistols raided the house of the complainant. The daughter of the complainant namely Saltnat opened the door then Rafeeq opened fire at her due to which her daughter became injured and he started crying and ran inside the house and all the accused persons trespassed into her house and started indiscriminate firing. Because of such indiscriminate firing complainant, her nephew Ikram and daughter Saltnat became seriously injured and fell down. The accused persons were of the view that these persons have expired so they went away from the place of occurrence. The complainant alongwith her injured daughter and nephew went to Sadar Hospital and during treatment her daughter Saltnat died because of the fire arm injuries sustained by her in this incident. After that the FIR of this case was lodged at the police station.

On the basis of this information this case was registered and inquest proceedings were conducted at the mortuary of the District Hospital Sitapur. The dead body was sent for postmortem which was conducted on the same day at 4:30 P.M. and in the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem fire arm injuries.

In the postmortem four fire arm wounds of entry and fire arm wounds of exit were reported by the doctor.

During course of investigation, the place of occurrence was inspected and its site plan was prepared. The blood stained and plain earth were taken into custody.

During investigation on 20.01.2004 in compliance of the order of C.J.M. dated 19.01.2004 the appellant Rafeeq was taken on police remand and on his pointing out the weapon of offence is alleged to have been recovered. The two injured persons were medically examined on the same day and their dying declaration were also recorded by Nayab Tehsildar Pyare Lal on 16.12.2003.

After completing the investigation the charge-sheet was filed against all the accused persons. In the said dying declaration both the injured had named only the present appellants and not the other three named accused persons.

The defence of the accused persons was of their total denial and their false implication because of the enmity.

In order to prove its case the prosecution has examined PW-1 Mohd. Imran, (an independent witness) he has not supported the case of the prosecution and he has stated that he had only seen that the daughter of the complainant was lying on the road and there was some bleeding from her mouth and chin. He has not seen any person firing on her or running away from the place of occurrence, PW-2 Zafar Ahmad is a formal witness of the recovery of blood stained and plain earth but he has stated that his signatures were obtained on plain paper. PW-3 is Sub Inspector Ajai Singh who had conducted the inquest proceedings on the body of the deceased Saltnat in the supervision of S.I. Lallan Singh so he is only a formal witness, PW-4 is the complainant Shakila alias Margina Khatoon. She has supported the case of the prosecution but cross examination of this witness could not be concluded because of her death. PW-5 Ashok Kumar Sharma, peon of Nayab Tehsildar who has proved the statement of the two injured recorded as dying declaration as secondary evidence which were recorded by Nayab Tahsildar, Pyare Lal PW-6 is SSI Lalta Prasad the Investigating Officer of this case who has also proved the recovery on the pointing out of the appellant Rafeeq, PW-7 is Dr. Dinesh Kumar who has proved the medical certificate of fitness on the two dying declarations. Admittedly the injured persons whose dying declarations have been proved had survived.

In this case as CW-1 Constable Jotha Lal was examined who has stated that Tahsildar Pyare Lal has expired who had recorded the statements of Smt. Shakila alias Margina Khatoon, complainant of this case and Mohd. Ikram. CW-2 Constable Ansar Ahmad has stated that the injured Ikram Ahmad has expired CW-3 Constable Janglee Prasad has stated that Smt. Shakila alias Margina Khatoon (complainant of this case) has expired due to illness and CW-4 D r. Narendra Singh Bhadauria who has given the certificate of fitness on the two alleged dying declarations.

In defence DW-1 Ram Kishore Singh was examined, he is the jail warden. He, on the basis of the jail record, has testified that Mohd. Zeeshan and Shanikdar were in jail in reference to Case Crime No. 503 of 2003 in a case under Motor Vehicle Act and they were released from jail on 19.12.2013. The evidence of these witness was only relevant with regard to the accused persons who have already been acquitted by the trial court.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence both these appeals.

Submission of the learned counsel for the appellants was that the witnesses of fact who have been examined by the prosecution have not supported the case of the prosecution. The injured complainant has supported the case of prosecution but because of her death during pendency of the trial, her cross-examination could not be concluded and therefore her evidence cannot be read against the present appellants as they could not get full opportunity to defend them by completing her cross-examination. It has also been argued that the learned trial court has placed implicit reliance on the statements of the two injured persons recorded as dying declaration, who subsequently survived and on the basis of the same have convicted them. This approach of the learned trial court was absolutely against the law which has rendered its judgment unsustainable under law.

Learned Additional Government Advocate has fairly conceded that the alleged dying declarations (Exhibit Ka-12 and Ka-13) of injured witnesses who have subsequently survived does not fall within the purview of Section 32 of the Evidence Act nor they are relevant under section 6 of the Evidence Act. He has admitted the fact situation that before conclusion of the cross examination of the complainant she has expired.

Perusal of the record shows that PW-1 has not supported the case of the prosecution and nothing could be extracted in his cross-examination by the public prosecutor to lend any support to the case of the prosecution. PW-2 has stated that he came out of his house after about two hours of hearing of the noise of fires. Nothing could be extracted in his cross-examination to support the case of the prosecution. Regarding the evidence of the complainant learned trial court has given reasons due to which her cross-examination could not be concluded in para 30 of the judgment and the learned trial court in para 37 itself has observed that under Section 33 of the Indian Evidence Act, the evidence of this witness cannot be taken into consideration. But inspite of that the Court observed that in order to effective decision of this case it is desirable to appreciate the evidence of the complainant. In para 42 of the judgment the learned trial court has observed about the statements of the two injured persons which were recorded as their dying declaration but subsequently they were survived. In the said statement the complainant and Mohd. Ikram both have stated that Rafeeq and Mohd. Umar have fired and the remaining accused persons could not be identified by them. Thereafter learned trial court has also considered whether such statement are admissible as dying declaration or not. Thereafter he has opined that the said statements were admissible in evidence under Section 6 of the Indian Evidence Act and only on the strength of this evidence has convicted the appellants. The approach adopted of the learned trial court was absolutely unwarranted under law. When the learned trial court himself observed that the evidence of the complainant was not admissible under Section 33 of the Indian Evidence Act then there was absolutely no occasion for him to consider the said evidence for effective decision of this case.

Before proceedings further we would like to quote Section 6 of the Indian Evidence Act which reads as under:-

"6. Relevancy of facts forming part of same transaction--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."

Thus this section provides an exception to the general rule whereunder the hearsay evidence has been made admissible in evidence. So the words said or uttered in the course on same transaction or almost contemporaneously with the incident without any interval, hearsay evidence becomes admissible because the chances of fabrication stands eliminated.

This point has considered by the Hon''ble Apex Court in the case of Bhairon Singh V. State of M.P. reported in , (2009) 13 SCC 80 and has observed in paragraphs Nos. 20 and 21 as under:-

"The learned Counsel for the State, however, invited our attention to Section 6 of the Evidence Act and referred to a decision of this Court in Sukhar v State of U.P. reported in , 2000 CriLJ 29

Section 6 of the Evidence Act reads thus:

Relevancy of facts forming part of same transaction.-- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

In the case of, Sukhar, this Court noticed position of law with regard to Section 6 of the Evidence Act thus:

Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore''s Evidence Act reads thus:

Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may we l continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.

Sarkar on Evidence (15th Edn.) summarises the law relating to applicability of Section 6 of the Evidence Act thus:

The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot & c the declarations of al concerned in the common object are admissible.

Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.

The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence."

Hon''ble the Apex Court in the case of State of Maharashtra V. Kamal Ahmad Mohammad Vakil Ansari & Others reported in , (2013) 12 SCC 17 has again considered this aspect and has observed in paragraphs Nos. 38 and 41 as under:-

"38. Reliance was also placed on decision rendered in Gentela Vijaya Vardhan Rao v. State of A.P. reported in , 1996 (6) SCC 241, wherein this Court held, that the principle of law embodied in Section 6 of the Evidence Act, is expressed as "res gestae". The rule of "res gestae", it was held, is an exception to the general rule, that hearsay evidence is not admissible. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act, it was pointed out, was on account of spontaneity and immediacy of such statement or fact, in relation to the "fact in issue". and thereafter, such facts or statements are treated as a part of the same transaction. In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon, and in conjunction therewith.

We may first extract Section 6 of the Evidence Act hereunder:

Relevancy of facts forming part of same transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.

(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at al of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

In our considered view, the test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction". It is therefore, that for describing the concept of "res gestae", one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe illustration (a) under Section 6 of the Evidence Act, specially in conjunction with the words "are so connected with a fact in issue as to form a part of the same transaction", in a manner differently from the approach characterized above."

Thus keeping in view the aforementioned legal position, the statements of these two injured persons recorded by the Nayab Tehsildar as dying declaration after petty long gap of the incident and at a different place were not admissible in evidence under Section 6 of the Evidence Act and the learned trial court has committed error of law in treating the same as admissible evidence. The value of dying declaration of any of the witnesses when recorded and subsequently he survives then the said dying declaration is not admissible as dying declaration but it shall fall only within the category of his earlier statement of such witnesses and the evidentiary value of such statement would be the same as is attached with the statement under Section 161 Cr.P.C. and the same can be used only for the limited purpose for which statement under Section 161 Cr.P.C. can be used.

Hon''ble the Apex Court in the case of Ranjit Singh V. State of M.P. reported in , (2011) 4 SCC 336 has considered this aspect and has observed in paragraphs Nos. 29 to 32 as under:-

"In Maqsoodan and Ors. v. State of U.P. reported in , AIR 1983 SC 126, this Court dealt with a similar issue wherein a person who had made a statement in expectation of death did not die. The court held that it cannot be treated as a dying declaration as his statement was not admissible under Section 32 of the Indian Evidence Act, 1872 (hereinafter called the Act 1872), but it was to be dealt with under Section 157 of the Act 1872, which provides that the former statement of a witness may be proved to corroborate later testimony as to the same fact.

A similar view has been re-iterated by this Court in Ramprasad v. State of Maharashtra reported in , AIR 1999 SC 1969, as the Court held:

"Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact" but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof."

This has also been reiterated in Gentela Vijayavardhan Rao and Anr. v. State of Andhra Pradesh reported in , AIR 1996 SC 2791; and State of U.P. v. Veer Singh and Ors. reported in , (2004) 10 SCC 117.

Thus, in view of the above, it can safely be held that in such an eventuality the statement so recorded has to be treated as of a superior quality/high degree than that of a statement recorded under Section 161 Cr.P.C. and can be used as provided under Section 157 of the Act 1872."

Thus in the instant case there was absolutely no legally admissible evidence against the appellants to connect them with the said offence.

In view of the discussion made above, we are of the considered view that approach of the learned trial court was erroneous, the finding recorded by the learned trial court was not in accordance with law. Learned trial court utterly failed to appreciate the legal position which has rendered its judgment unsustainable under law. Accordingly, these appeals i.e. (Criminal Appeal No. 93 of 2015-Mohd. Umar V. The State of U.P.) and (Criminal Appeal No. 283 of 2015- Rafeeq V. The State of U.P.) deserve to be allowed and are hereby allowed. Appellant Mohd. Umar is on bail. His bail is cancelled and sureties are discharged. He is acquitted of the charge levelled against him. Appellant Rafeeq is in custody. He is acquitted of all the charges levelled against him. He shall be released forthwith, if not, wanted in any other case.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.