S.B Sinha, J.— These criminal appeals arise out of a common judgment dated 8-12-2004 passed by a Division Bench of the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 478 of 2002.
2. The appellants, along with one Syed Salim, were tried for commission of an offence under Sections 302/34 of the Indian Penal Code, 1860 (“IPC”, for short) and were directed to suffer rigorous imprisonment for life. A fine of a sum of Rs 3000 each was also imposed.
3. Abdul Karim (PW 11), at the relevant point of time, was attached with Shivaji Nagar Police Station, Nanded as Police Inspector. He received an information at about 10.45 p.m that an incident had occurred at Ashrafnagar. He went there in a police jeep and came to know that one Kayyum was injured in a quarrel, which took place between him and one Syed Shaukat. He came to learn that Kayyum was admitted in the government hospital. He went there and found him in the “Outpatient Department” (OPD) in an injured condition. Before him a statement was made by Mohammed Shakeel (PW 6) which was treated as a first information report.
4. Since the deceased, Kayyum, was operated, his statement could not be recorded immediately. PW 11, however, went to the place of occurrence on the next day and recorded statements of some witnesses. He recorded the statement of one Rauf, who was present in the hospital. He also seized the bloodstained clothes of the victim.
5. While in hospital, Kayyum gave three dying declarations — one on 17-3-1999 before the attending physician, Dr. Kagane, who was examined as PW 10. He gave a dying declaration before a Judicial Magistrate on 18-3-1999, which is a very short one and is reproduced hereinafter:
“I, S.B Shaikh, IVth Judicial Magistrate, Ist Class, Nanded will ask you few questions and you may answer those without any fear.
Q.1. What is your name and where do you stay?
Ans. Shaikh Kayyum s/o Shaikh Nabisab, r/o Ashrafnagar, Nanded.
Q.2. How did the incident take place?
Ans. I have been injured by weapons on 17-3-1999 in front of the house of Shaukat by Shaukat, Salim and others.
Q.3. Who is responsible for the said incident?
Ans. The abovementioned people are responsible.”
I have been read over the statement given by me and the same is correct.
Thumb impression of left hand”
6. Yet again, a dying declaration was made before the investigating officer on 19-3-1999, which is a detailed one. Therein, the deceased disclosed that he was running business of fissile stone in partnership with appellant Arshad and he invested a sum of Rs 60,000 in the said business. He, however, wanted the said amount back from Arshad. Although, he was assured thereabout, Arshad did not pay him back the same. He furthermore narrated two instances, one of which took place on 1-3-1999. While he was riding a two-wheeler, it accidentally dashed with the motorcycle of Syed Shaukat who was sitting thereupon drinking water. He started abusing him. The matter was reported to the police station, but, on intervention of their parents no report was lodged and the matter was compromised. He narrated the second incident which took place on 17-3-1999 at about 6 o'clock when he and his cousin Mohammed Rais were going to the hotel “Sailani” together. Syed Shaukat was standing in front of his house and asked as to why he had been looking at him, to which he replied in the negative. Shaukat, allegedly, threatened him saying that that was his last day and asked him to do whatever he could. He went to hotel “Sailani” and thereafter reported the matter to the police station of Shivajinagar. He came back to the hotel and discussed the matter with his friends. He, thereafter, having thought that his mother must be worrying, went to his house to tell about the incident to his family members. While returning from the hotel, when he reached in front of a mutton shop, Syed Salim (absconding) came on the road and asked him to wait and as soon as he stopped his motorcycle, he, allegedly, gave a call saying “Shaukat Bhai” and started assaulting him with a knife. At that time Shaukat and Arshad came running. Whereas Shaukat took out his knife and assaulted him in his chest and stomach, Arshad, allegedly, assaulted him on his back by a wooden stick. He, thereafter, started shouting and begged them not to hit him, whereupon several people came running and rescued him. They made him sit on the motorcycle and brought him to the hotel. The motive for alleged commission of the said offence, in his words, is as under:
“Therefore, S. Shaukat S. Kasim, his brother-in-law, S. Arshad s/o S. Hussain who are staying in my lane as I asked for the money in the contractorship of fissile stone (1) S. Shaukat S. Kasim (2) Salim s/o S. Hussain (3) S. Arshad s/o S. Hussain assaulted me with knife and khanjar and wooden stick on my chest, right side of neck, on right side of my bicep and with an intention to kill me have caused injuries to me. At present my health is good.”
7. The deceased died three days after the incident.
8. Apart from the appellants and Syed Salim, it appears that one Syed Maqdum was also prosecuted for commission of the said offence, although, he was not named in the dying declaration of the deceased. He, however, was acquitted. The learned Sessions Judge found the appellants herein as also the said Syed Salim to be guilty of commission of the offence under Sections 302/34 IPC. The appeal preferred thereagainst by the appellants herein as also Syed Salim was dismissed. Both the learned trial Judge and the High Court relied upon the evidence of Farukoddin (PW 2), Mohammed Shakeel (PW 6) and Mohammed Rais (PW 7), as also the dying declarations of the deceased Kayyum.
9. Before we advert to the depositions of the said witnesses as also the dying declarations of the deceased, we may notice the injuries suffered by the deceased, which are as under:
(1) Abrasion at nose anteriorly on left side. Size 2.5 × 1 cm. Brown scarp formed.
(2) Stitched wound of 3 stitches (2.5 cm) at the neck on the right side on the lower aspect. On dissection track directed medially downwards in right thoracic cavity. Pleura showed corresponding cut of 2.5 cm (clean cut) with corresponding puncture wound of 2.3 cm × 0.3 cm × 1.5 cm at upper lobe. Blood clots seen in the track and adherent to lung. Evidence of right haemothorax-1600 ml with few blood clots.
(3) Stitched wound at left side second intercostal space, mid-clavicular line (3 stitches) 2.5 cm in length, stitches intact.
(4) Stitched wound at left side of chest, seventh intercostal space anterior axillary (fold), line (2 stitches intact) 1.5 cm.
(5) Stitched wound on chest right side, seventh intercostal space anterior axillary (fold) 3 stitches 2.5 cm.
(6) Stitched wound on abdomen on right side lumbar region (2 stitches intact) 8 cm above iliac crest.
(7) Stitched wound on abdomen right paramedical, vertical, 11 stitches intact (suggestive of laparotomy).
(8) Stitched wound over abdomen, 2 stitches left side just below umbilicus.
(9) Stitched wound on right arm on middle third laterally, 4 stitches intact.
(10) Stitched wound on right elbow laterally, four stitches intact.
(11) Stitched wound on right wrist medially, six stitches intact.
(12) Stitched wound on right forearm middle third region medially (2 stitches intact).
(13) Evidence of venisection left ankle medially.”
10. It is of some significance to point out that although, the appellant Mohammed Arshad is stated to have assaulted the deceased with a stick on his back, no such injury was found on his person.
11. Mr Sanjay R. Hegde, learned counsel appearing on behalf of the appellant in Criminal Appeal No. 1674 of 2005, Mohammed Arshad would submit that the prosecution case cannot be relied upon inasmuch as: (1) the deceased had not named the appellant in two dying declarations; (2) an improvement was made by the deceased in his third dying declaration, wherein some role was attributed for which no credence can be given.
12. Mr Uday Umesh Lalit, learned Senior Counsel appearing on behalf of the appellant in Criminal Appeal No. 1676 of 2005, Syed Shaukat, pointed out that Farukoddin (PW 2) was not an eyewitness. It was furthermore submitted that his evidence as regards the purported statements made to him by the deceased relating to the mode and manner of assault by the appellant and the said Syed Salim had not been believed by the High Court also. The learned counsel urged that Mohammed Shakeel (PW 6) is also not reliable as although he had helped the deceased to sit on the motorcycle, his clothes did not become bloodstained although, admittedly, the deceased received serious injuries and blood was oozing profusely. Drawing our attention to deposition of Mohammed Rais (PW 7), the learned counsel would contend that he had introduced one “dastiwala” and even his identity as Accused 4 had not been established. It was further submitted that both PWs 6 and 7 were interested witnesses, as PW 6 was a friend of the deceased and PW 7, admittedly, was related to him.
13. In the first information report as also in his evidence, PW 6 had named the appellants herein and Syed Salim. He was an eyewitness. He categorically stated that whereas Salim had a khanjar in his hand, Arshad had a wooden stick. He also heard the deceased crying as “save me”, “do not beat me”. He also heard the deceased taking the names of the appellants and Syed Salim, whereupon he rushed to the spot and found them to be assaulting the deceased. The clothes of the deceased were stained with blood. He found injuries on his person. After the accused fled away, he helped the deceased to sit on his motorcycle and was taken to the hotel. Mohammed Rais (PW 7) was another eyewitness. He deposed in regard to the business dealings by and between the deceased and Arshad. He also deposed in regard to the incidents which took place on 8-3-1999, 14-3-1999 and 17-3-1999. Farukoddin (PW 2), on the other hand, came to the spot immediately after the occurrence. He is not an eyewitness in the strict sense of the terms but the same is corroborative in nature. He, however, reached the spot immediately after the occurrence. As noticed hereinbefore, his testimony of the fact that the deceased told him about the participation of the appellants and Syed Salim had not been believed by the High Court.
14. It is no doubt true that the appellants and Syed Salim were named in the first information report, but, the deceased was the only person who could tell about the actual incident. He, as noticed hereinbefore, made three dying declarations. The first dying declaration was before the doctor. He did not name Mohammed Arshad, although, he named Syed Shaukat and Syed Salim.
15. No doubt in his first dying declaration he named Shaukat and Salim and stated “others”, but we do not find any reason as to why despite the fact that he had later on described the motive on the part of Arshad, he did not take his name as one of the assailants in his first dying declaration.
16. The comments made by the learned counsel that in the dying declaration before the Judicial Magistrate he did not state in detail the role played by each of the accused, cannot be accepted as only three questions were put to him by the learned Judicial Magistrate, out of which only Questions 2 and 3 are relevant. It was for the learned Magistrate to ask for the details of the incident. He did not do so and presumably, therefore, the deceased had no occasion to state about the incident in detail in his dying declaration before the learned judicial Magistrate. The dying declaration before the investigating officer, which was recorded on 19-3-1999, is a detailed one. It is not in the question-answer form. He stated about his family in some detail, his running of the business in partnership with Arshad as also the incidents which had respectively taken place on 8-3-1999, 14-3-1999 and 17-3-1999. The statements made by him corroborated the statements made by the eyewitnesses Mohammed Shakeel (PW 6) and Mohammed Rais (PW 7). Submission of Mr Lalit that testimony of PW 6 should not be believed, cannot be accepted. Only because his clothes did not become bloodstained, in our view, is not of much significance. He only helped the deceased to sit on the motorcycle, and the same may be the reason of his clothes not being stained with blood. There was, thus, no reason for us to reject the testimony of PW 6 in regard to Shaukat. It may be true that PW 7 named one “dastiwala”. He, however, explained the same stating:
“We reached the house. Kayyum said that he would go back to hotel. Kayyum left the house with Yamaha motorcycle; I followed him. I was on the bicycle. In front of house of Pasha, Salim stopped Kayyum. Thereafter Salim, Shaukat, Arshad and dastiwala were beating Ayub with stick, khanjar and knife. I ran away after seeing them. I again say that I ran towards Kayyum.”
17. He, however, stated:
“It is true that a person returning from ‘Haj’ pilgrimage wears white scarf (dasti). It is not true that Suleman Pirani was always wearing white scarf.”
18. We also do not find much substance in the submission of Mr Lalit that when the Police Inspector Abdul Karim, PW 11, made inquiries from Mohammed Shakeel, PW 6, the names of the appellants were not disclosed. That was not the occasion where the names could be disclosed as PW 11 had only informed him about the incident. All the people must have been worried about the deceased. Furthermore, it is not in dispute that the incident took place at about 10.30 p.m, whereas the first information report was lodged at about 11.45 p.m It is, therefore, unlikely that appellant Syed Shaukat had been falsely implicated, particularly, in view of the fact that as a sequel to the incident which took place on 8th March he had lodged a report and in respect of the incident which took place on 14th March, the deceased had lodged a report.
19. Furthermore, Dr. Rajendra Kagane, PW 10 in his evidence categorically stated that Injury 2, which was vital, could be inflicted with Article No. 12, which overt act was ascribed to the appellant. The said weapon was also recovered pursuant to the confession made by him.
20. We, therefore, do not find any merit in the appeal preferred by Syed Shaukat.
21*. So far as the appeal preferred by Mohammed Arshad is concerned, we are of the opinion that he is entitled to benefit of doubt. He was not named in the first two dying declarations. He was named only in the third dying declaration. No injury by stick was found on the back of the deceased. The motive ascribed as against him did not find place in the first information report. Evidently, the deceased made improvement in his third dying declaration before the police officer.
22. Keeping in view the backdrop of events, we fail to see any reason as to why appellant Mohammed Arshad would not have been named in the first or second dying declarations if the motive for his involvement was non-payment of a sum of Rs 60,000 as was disclosed by the deceased.
23. This Court in Balbir Singh v. State of Punjab (2006) 12 SCC 283, (2006) 9 Scale 537 (2) relying upon several decisions of this Court including State of Maharashtra v. Sanjay (2004) 13 SCC 314 and Muthu Kutty v. State (2005) 9 SCC 113 held: (Balbir Singh case)
“34. We are of the opinion that whereas the findings of the learned Sessions Judge as also the High Court in regard to the guilt of Appellant 1 must be accepted, keeping in view the inconsistencies between the two dying declarations, benefit of doubt should be given to Appellant 2. We, however, uphold the conviction and sentence of both the appellants under Section 498-A IPC.”
24. For the reasons aforementioned, while allowing Criminal Appeal No. 1674 of 2005, Criminal Appeal No. 1676 of 2005 preferred by Syed Shaukat is dismissed. Appellant Mohammed Arshad shall be released forthwith, if not required in connection with any other case.