1996 Supreme(Guj) 551

Gujarat High Court
Judgename :R.K.Abichandani, R.R.Jain
STATE OF GUJARAT - Appellant
Versus
IQBAL @ ALTAFHUSEIN GULAMHUSEIN malek - Respondent
CRIMINAL APPEAL 345 of 1985
Decided On : 11/07/1996

Headnote:(a) Evidence Act, 1872 - Sec. 32(1) - Criminal Procedure Code, 1973 - Sec. 162(1) - Statement made before Police - Admissibility - Provision under Sec. 162(1) of the Code has no application to any statement falling within the provision of clause (1) of Sec. 32 of Evidence Act - No requirement of law that such statement/dying declaration must necessary be made to a Magistrate - What evidential value or weight has to be attached to such statement/ dying declaration made to police must necessarily depend on facts & circumstances of each case - In the case it is not as if dying declaration was made only in presence of Police Officer - Medical Officer was also present & he made endorsement below the statement - Contention that deceased could not have raised his hand to put his thumb impression is also absolutely without substance - No reason to infer that dying declaration was concocted at a later point of time.The contention that the dying declaration was in effect a statement before the Police and was hit by the provisions of Section 162 (1) is devoid of any substance because Section 162(2) Itself provides that `Nothing in this Section shall be deemed to apply to any statement falling within the provisions of Cl. (1) of Section 32 of the Indian Evidence Act. Therefore, a dying declaration cannot be hit by the provisions of Section 162 (1) even if it is made in presence of a Police Officer. As held by the Supreme Court in Ramavati - AIR 1983 S.C. 164, there is no requirement of law that dying declaration must necessarily be made to a Magistrate. What evidential value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each case. In that case the dying declaration was recorded by the Assistant Inspector of Police and it was held that the dying declaration was admissible and can be relied upon for the purpose of convicting the accused. In the present case it is not as if that the dying declaration was recorded only in the presence of the Police Officer. The Police Officer had, after recording the FIR proceeded to the nearby hospital where he recorded the dying declaration of Nanumiya. The offence which was registered initially was one under Section 307 of the IPC, but later, the charge was converted into one under Section 302 of the Indian Penal Code. Therefore, it is obvious that looking to the injuries which were inflicted on Nanumiya, the Police Officer thought it proper to record his statement in presence of the doctor and also take the endorsement of the doctor below that statement. The contention that Nanumiya could not have raised his hand for putting thumb mark has absolutely no substance, because, even where a person is seriously injured in his arm, by holding the thumb against the paper, his thumb impression can be easily taken. There is absolutely no reason to infer that the dying declaration Ex. 52 was concocted at a later point of time.[Para 25](b) Criminal Procedure Code, 1973 - Sec. 294(3) - Genuineness of Panchnama Ex. 44 admitted - Formal proof to admit the same in evidence not required - Averment in Panchnama that deceased `N stated before Panchas that accused inflicted injuries may not form the substantive evidence in the case but can lend further corroboration to what is already established by other reliable evidence.The panchnama Ex. 44, after noting down the injuries, proceeds to record that Nanumiya had stated before the panchas that Iqbal, Fatehkhan and Anwarmiya had given the dharia blows to him and Gulamnabi had given stick blows to him. This panchnama Ex. 44 was exhibited in view of the endorsement made by the learned Counsel for these accused persons on the list Ex. 2 under which 12 documents enumerated therein were produced, and, amongst the documents which were admitted, the said panchnama which appeared at serial No. 1 was also admitted and was therefore, exhibited. This aspect is also referred to by the learned Sessions Judge in paragraph 18 of his judgment. Therefore, panchnama Ex. 44 was exhibited because its genuineness was not challenged. In view of the endorsement made by the Counsel for the accused persons on the list under which it was produced, the panchnama was rightly exhibited, under the provisions of Sec. 294(3) of the Criminal Procedure Code, in which it is provided that where genuineness of any document is not disputed, such document may be read in evidence in any enquiry, trial or in any other proceedings in the Court without proof of the signature of the person by whom it purports to be signed, provided that the Court may in its discretion require such signatures to be proved.[Para 27]Even though a document which is admitted as genuine and is exhibited in a trial in view of the endorsement made by the Counsel for the accused under Section 294 of the Code, its evidenciary value has to be decided in context of the facts and circumstances of the case. It would therefore be open for the accused persons to assail the contents of the documents, because admission of the document as a genuine document would not amount to admitting the facts stated therein and the acceptance of facts stated in such a document would depend on whether it should be treated as a substantive piece of evidence or a corroborative piece of evidence. We are not relying on that portion contained in the panchnama Ex. 44 which is a dying declaration, as a substantive piece of evidence. As noted above, there is ample direct positive evidence showing involvement of all these four accused persons. The oral evidence itself is sufficient to hold them guilty. That is amply corroborated by the documentary evidence in form of dying declarations though of course the dying declaration alone can be relied upon as a substantive piece of evidence. The statement in the panchnama only lands further corroboration to that what is already established by other reliable evidence.

       [Para 27](c) Penal Code, 1860 - Secs. 326 & 302/34 - Death caused due to injuries - Two appeals by State and one by two of the accused against the decision in the case - Appreciation of evidence - Besides the oral evidence of eye witnesses, there is reliable dying declaration of the deceased against all the four accused - Court is satisfied on that basis that accused stayed waiting for deceased `N to come and at that time accused 1, 2 & 3 were armed with Dharias & accused No. 4 with stick - When `N came there on his house they stopped him and attacked him with weapons in their hands & inflicted fatal injuries resulting in his death - Contention that accused No. 1 was not Iqbal as alleged, is not acceptable on basis of school certificates produced because no original certificate was produced and no cross examination was directed to witnesses in that regard - The manner in which accused waited for the arrival of deceased & jointly inflicted injuries, common intention of all the four to commit murder can not be denied - Accused No. 4 may not have inflicted injuries but then his presence is fully established among the accused - He was armed with stick - He could not deny his liability of having common intention to commit the offence - As a result prosecution has been able to establish that all the four accused were guilty of murdering deceased `N in furtherance of common intention - Accused No. 2 `Y has died during pendency of appeal & therefore appeal against him abates - Rest all the three convicted under Sec. 302 read with Sec. 34.The positive evidence on record clearly shows that the accused No. 1 was known as Iqbal, and, this is not a case where there is any scope of mistaken identity of the accused No. 1. He also drew our attention to one xerox copy of a School Leaving Certificate in the name of Altaf Hussain Gulam Mohammed Malek, in which the birth-date was shown as 1.1.1990. In the certificates which is in the name of Iqbal it is shown as 1.6.1954. On the strength of these certificate it is contended that these two were different persons. We may only point out that after the written defence Ex. 59 was given alongwith the xerox copies of the documents, a pursis was filed on 12.12.1984 which is on the record, which contains the list of some original documents of which xerox copies were produced with the written defence Ex. 59. It will be noted from that list that no original school leaving certificate was produced with that list. We are therefore, not inclined to attach any weight to the copies of the School Leaving Certificates annexed with the written defence Ex. 59.

       [Para 24]Under the circumstances, on totality of the established facts and circumstances of the case, we are fully satisfied that all these four accused persons had gone together fully armed at the place of the incident, waiting for Nanumiya to come and when Nanumiya came there on a horse back, they assaulted him with their weapons causing severe injuries, which resulted in his death. They, after jointly committing the assault, went away together. The manner in whcih they waited and inflicted these serious injuries on Nanumiya and having accomplished their task went away together, clearly shows that they were acting in furtherance of their common, intention to cause death of Nanumiya. The non-mention of contusion by the doctor at Mahudha or by Mr. Shah who had examined the injured when he was alive, is hardly of any consequence because when all the four accused assaulted Nanumiya with their weapons causing severe injuries, even if accused No. 4 did not inflict any blows with the stick, he would have been held guilty for the offence because he was in the company of all other accused persons and it is evident that he was having a stick in his hands. The panchnama Ex. 44 shows that there was a bruise mark. We are not inclined to accept the suggestion made by the learned Counsel that the bruise must have been caused to Nanumiya while he was being shifted to the hospital. From the positive evidence on record, we are of the view that even the accused No. 4 had participated in the crime with the stick and he had inflicted the stick blow and that he too shared the common intention to cause the death of Nanumiya. Under these circumstances all the accused were guilty of murdering Nanumiya in furtherance of their common intention. The contention raised on behalf of the accused persons cannot therefore be accepted.

       [Para 28]