1. Appeal against conviction for murder under Section 302/34 IPC based on circumstantial and dying declaration evidence. (Para 2 , 3 , 5 , 6 , 7 , 8 , 9 , 11 , 13 )
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2006 Supreme(SC) 1185
S.B. Sinha & Markandey Katju
Mohammed Arshad PETITIONER
Versus
State of Maharashtra & Ors. RESPONDENT
Appeal (crl.) 1674 of 2005
With Criminal Appeal No.1676 of 2005
Decided on: 24/11/2006
Benefit of doubt is granted to an accused who is omitted from initial dying declarations and whose attributed role in a subsequent declaration is contradicted by medical evidence, as such additions are viewed as unreliable improvements.
Headnote:(A) Indian Penal Code, 1860 - Section 302 read with Section 34 - Dying Declarations - Contradictions and improvements in dying declarations - Where an accused is not named in the first two dying declarations and is only named in a third, more detailed declaration, and where the role attributed to the accused is not supported by medical evidence, the accused is entitled to the benefit of doubt.
(B) Criminal Evidence - Medical evidence vs. Oral testimony - If the role attributed to an accused in a dying declaration (e.g., assaulting with a wooden stick on the back) is completely contradicted by the medical report (e.g., no injury found on the back), such testimony is deemed unreliable.
Facts of the case:
The appellants were convicted under Section 302/34 of the Indian Penal Code for the murder of a person. The deceased made three dying declarations: the first before a physician, the second before a Judicial Magistrate, and the third before an Investigating Officer. In the first two declarations, two of the accused were named, but the third appellant was not. In the third declaration, the deceased detailed a business dispute and named the third appellant, alleging he was assaulted with a wooden stick on his back. Medical evidence showed vital injuries to the chest and stomach but no injuries on the back.
Findings of Court:
The court found that the evidence against one appellant was consistent across all dying declarations and corroborated by medical evidence and the recovery of the weapon. However, regarding the other appellant, the court noted that he was not named in the initial declarations and the medical evidence did not support the specific act attributed to him in the final declaration, suggesting an improvement in the statement.
Issues: Whether a conviction can be sustained when an accused is only named in the final dying declaration and the specific injuries attributed to that accused are not found in the medical report.
Ratio Decidendi: The court held that inconsistencies between dying declarations, coupled with a lack of medical corroboration for the specific role attributed to an accused, create reasonable doubt. If the alleged motive and role only appear in a subsequent, detailed declaration and are contradicted by physical evidence, the benefit of doubt must be extended to the accused.
Result: Appeal of one appellant allowed and the other dismissed.
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JUDGMENT
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.
The appellants, along with one Syed Salim, were tried for commission of an offence under Section 302/34 of Indian Penal Code, 1860 ('IPC', for short) and were directed to suffer Rigorous Imprisonment for life. A fine of
a sum of Rs.3,000/- each was also imposed.
Abdul Karim (P.W.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 'Out Patient Department' (OPD) in an injured condition. Before him a statement was made by Mohammed Shakeel (P.W.6) which was treated as a First Information Report.
Since the deceased, Kayyum, was operated, his statement could not be recorded immediately. P.W.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 blood stained clothes of the victim.
While in hospital, Kayyum gave three dying declarations one on 17.3.1999 before the attending physician, Dr. Kagane, who was examined as P.W.10. He gave a dying declaration before a Judicial Magistrate on 18.3.1999, which is very short one and is reproduced hereinafter :
"I. S.B. Shaikh, 4th Judicial Magistrate 1st class, Nanded will ask you few questions and you may answer those without any fear.
Q.1What is your name and where do you stay?
Ans.Shaikh Khayum s/o Shaikh Nabisab, r/o Ashraf Nagar, Nanded.
Q.2How did the incident take place?
Ans.I have been injured by weapons on 17.03.99 in front of the house of Shaukat by Shaukat, Saleem and others.
Q.3Who is responsible for the said incident?
Ans.The above mentioned people are responsible."
I have been read over the statement given by me and the same is correct.
Thumb impression of left hand"
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, accidentally it 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, g
