JUDGMENT
P.P. Gupta, J.
1. This is a criminal appeal against the judgment and order dated 5-10-1978 passed by the VI Additional Sessions Judge, Kanpur, convicting and sentencing the appellant, Rafiq Ahmad, to undergo imprisonment for life under Section 302, I.P.C. in S.T. No. 164/M of 1977.
2. The charge against the appellant is that he, on 21-3-1977 at about 11-00 P.M. in front of the Bhaton-Ki-Bagia, Latourcha Road, Police Station Anwarganj, Kanpur, voluntarily fired at the deceased Iqbal alias Mullu with a revolver, as a result of which he died and thereby the appellant committed the murder of Iqbal alias Mullu.
3. The brief facts of the case are that the deceased Iqbal alias Mullu was running a betel shop on a Thela by the side of Latouche Road, at a place between Latoucha Road and the shop of the father of the accused, the case of the prosecution is that on 21-3-1977, at about 11-00 P.M., when Mullu was closing his shop, the accused came from the north and after showing the revolver to Mullu fired at him. Mullu sustained injuries and fell down. The accused is said to have run away in the Gali of Bhatoon-Ki-Bagia, which is just near the place of occurrence on northern side, the occurrence was seen by the witnesses, viz. Shafiq (P.W. 2), Shaukat Ali (P.W. 4), Sakir Husain (P.W. 3), and Ram Subhag, who were standing in front of the shop after taking betels. One Banney Khan was at the shop of Jamil Rickshaw-Wala, which is in front of the shop of Mullu, across the road, at a distance of about 18 paces. On hearing the firing Banney Khan (P.W. 5) also reached the spot. He found Mullu lying injured on the ground, who was saying that he was fired at by the accused, Rafiq. Mullu was at once removed to the U.H.M. Hospital in a Rickshaw.
4. At the hospital, Mullu was attended to by Dr. Nafisul Hasan (P.W. 9) at 11-35 P.M., who examined his injuries and found the following injuries on his person :
Multiple gun shot injury in 16 cm x 12 cm area right lower chest and right Upper abdomen depth under observation.
Mullu was admitted in the hospital.
5. At the hospital, written report, Ex. Ka-2, was written by Banney Khan (P.W. 5) at the dictation of Shafiq Khan (P.W. 2). The report was lodged at the Police Station by Shafiq Khan.
6. Mullu died the same night, i.e. on 22-3-1977 at 2-50 A. M. Thereafter the case was converted under Section 302, I.P.C.
6A. The post-mortem examination on the dead body of Mullu was performed by Dr. R.D. Tripathi (P.W. 1) on 22-3-1977 at 3-15 P.M. He found the following ante mortem injuries on the dead body of Mullu:–
1. 8 Gun shot wounds of entrance with laceration inverted margins in an area of 16 cm x 12 cm x cavity deep on the right side of the lower chest and upper abdomen 14 cms above the lateral to the umblicus. All the wounds were of 1/2 cm diameter and all were of the same size.
2. Gun shot wounds of exit on the right side, 3 cms outer to spinal cord and 10 cm above and inner side of Illiac crest. All these wounds were of 1 cm x 1/2 cm diameter and all were of the same size.”
7. On internal examination, it was found that 1st, 3rd and 5th vertebree were fractured. The pleura was reptured on the right side lower part. Right lung was also found ruptured and one shot was recovered from the right lung. Peritonaum was also found ruptured. The cause of death was due to shock and haemorrhage on account of the aforesaid injuries.
8. The case was investigated by Janki Pal Singh, S.I. (P.W. 11), who recorded the statement of Shafiq Khan at about 1-00 A.M. in the night. He reached the spot at about 1-30 A.M. There was no sufficient light in which the bullet marks could have been seen. Therefore, nothing further was done at the spot. He then went to the hospital to record the statement of Mullu. Since Mullu was in an unconscious state and the Doctor had not advised him so, the statement of Mullu could not be recorded and thereafter he returned to the Police Station. Having received the information of the death of Mullu, he again went to the hospital where he prepared the inquest report. On 22-3-1977 at 8-20 A.M., after completing other necessary formalities and collecting plain and blood stained earth from the spot, he submitted the charge against the accused on 25-3-1977, Ex. Ka-16. In order to prove the charge against the appellant, the prosecution examined 11 witnesses in all. Out of the four eye-witnesses, P.W. 2, Shafiq Khan, P.W.3, Sakir Husain and P.W. 4, Shaukat Ali, turned hostile to support the prosecution story. Only P.W. 5, Banney Khan, who is named in the F.I.R., has supported the prosecution.
9. After assessing the entire evidence on record, the learned Addl. Sessions Judge held the charge of murder against the appellant fully proved. Accordingly, he convicted and sentenced the appellant, as above.
10. Feeling aggrieved, the appellant, Rafiq Ahmad, has come up in an appeal before this Court.
11. We have heard the learned counsel for the appellant, Sri A.N. Srivastava, and the learned A.G.A. at length and have also perused the entire record of the case.
12. On behalf of the appellant, it was submitted before us that none of the prosecution witnesses have supported the prosecution story. Banney Khan (P.W. 5) was not an eyewitness. The F.I.R. in the case was not proved. There was also no light in which the assailant could have been identified. It was further argued that there was no motive for the appellant to commit the murder of Mullu.
13. We do not subscribe to the argument that F.I.R. in the case was not proved. The author of the F.I.R. is Shafiq (P.W. 2) and the scribe is Banney Khan (P.W. 5). Shafiq (P.W. 2) has admitted his signature on the F.I.R., Ex. Ka-2. P.W. 5, Banney Khan, has stated that the F.I.R. is in his hand-writing and it was written by him on the dictation of Shafiq (P.W. 2) at the hospital, After having been scribed, it was read over and explained to Shafiq and thereafter his signature was obtained on it. He has further stated that whatever was dictated by Shafiq was written by him and nothing on his own was added in the F.I.R. As has been said above, Shafiq (P.W. 2) has admitted his signature on the F.I.R. This evidence sufficiently proves the F.I.R. Therefore, the argument that F.I.R. in the case was not proved has no legs to stand. The next argument that there was no light on the spot is also devoid of merits. Although, it is a fact that the source of light is not mentioned in the F.I.R., but it was not necessary to have mentioned it therein. P.W. 5, Banney Khan, has stated that there was sufficient light at the place where the incident took place. It was the end of month of March when this occurrence took place. Latouche Road at Kanpur is a busy road where there are number of hotels and shops. The time was around 11-00 P.M. According to Banney Khan, electric lights were there in the neighbouring shops. Looking to the month and time and also the place where the occurrence took place, there is hardly anything to disbelieve the statement of Banney Khan that there was sufficient light at the place where the occurrence took place. It is, therefore, difficult to agree with the argument advanced on behalf of the appellant that there was no light.
14. The only question to be decided is whether there was any legal evidence to sustain the conviction of the appellant or not. Three eye-witnesses, viz. Shafiq Khan (P.W. 2), Sakir Husain (P.W. 3) and Shaukat Ali (P.W. 4) have stated that they did not see the occurrence. They were declared hostile and were permitted to be cross-examined by the prosecution. The only witness, who has supported the prosecution is Banney Khan (P.W. 5).
15. Regarding the witness, Banney Khan (P.W. 5) also, it has been said on behalf of the appellant that he too is not an eye-witness of the occurrence and there is nothing in his testimony which may prove the charge of murder against the appellant. It is, of course, true that Banney Khan himself did not see the appellant firing at the deceased. He has, however, stated that on the date of occurrence at about 11-00 P.M. he was standing in front of the shop of Jamil, which is at a distance of 18 or 19 paces from the shop of deceased Mullu, and saw that the appellant Rafiq had come from the side of Anwarganj Police Station and reached a place where the lane of Bhaton-Ki-Gali meets the Latouche Road, He also saw Mullu closing his shop at that time. Sabir and others were also seen by him standing in front of his shop. It is also his statement that immediately thereafter he heard the firing of shots and saw the appellant running in the Bhaton-Ki-Bagh Lane. He admitted that he did not see whether the appellant was carrying any weapon in his hand or not. He, however, stated that there was light at the spot. He immediately rushed to the place from where he had heard the firing of shots and found Mullu lying injured on the ground. He has further stated that Mullu was crying that he was fired at by the appellant Rafiq. He also found that Mullu had sustained bullet injuries. Thus, the statement of Banney consists of two parts. Firstly, immediately after having heard the firing of shot he saw the appellant running away from the spot, where he later found Mullu lying injured with fire-arm injuries. Secondly, that as he approached Mullu, he found him crying that he had been fired at by the appellant Rafiq.
16. As has been said earlier, Banney Khan is the scribe of the F.I.R., Ex. Ka-4, which was dictated to him by Shafiq (P.W. 2). It has come in his statement that he had scribed this F.I.R. on the dictation of Shafiq. It was read over and explained to him and it was thereafter that Shafiq had put his signature on it. Although Shafiq has not supported the prosecution, but he admits his signature on the F.I.R., Ex. Ka-4. It leaves no room for any doubt that the F.I.R. was dictated by Shafiq to this witness, Banney Khan. The other important point to be noted is that according to Banney Khan, the injured Mullu was taken by him to the hospital. His statement finds corroboration from the statement of Dr. Nafisul Hasan (P.W. 9), who had examined the injured Mullu on 21-3-1977 at 11-35 P.M. He has stated that Mullu (injured) was brought to the hospital by Banney Khan. The occurrence had taken place at 11-00 P.M. Banney Khan was present along with the injured at the hospital immediately thereafter at 11-35 P.M. All these facts have established the presence of Banney Khan at the spot when the occurrence took place. In these circumstances, we have no doubt whatsoever regarding the presence of the witness Banney Khan, at the spot when the deceased Mullu was fired at.
17. Banney Khan is an independent witness. He has stated on oath that immediately after hearing the firing of shots he saw the appellant running away. Again, when he reached the spot from where the shots were heard, he found Mullu lying injured with a fire-arm injuries. He was crying that he had been fired at by the appellant Rafiq. The statement of Mullu to Banney Khan amounts to dying declaration. This dying declaration was made by the deceased immediately after the occurrence. No time had elapsed in between. The statement was made at the earliest opportunity. Banney Khan was the earliest, who reached him. Therefore, there was no occasion of any tutoring by any other person. As discussed above, there was sufficient light. There is nothing in the statements of Dr. Nafisul Hasan (P.W. 9), who examined the injuries, or of Dr. R.D. Tripathi (P.W. 1), who performed the post-mortem on the body of deceased Mullu, to infer that Mullu had become unconscious after sustaining fire-arm injuries and was not in a position to speak immediately thereafter. Our attention was drawn to the statement of Dr. Nafisul Hasan (P.W. 9) that the statement of injured Mullu could not be recorded because he was in a semi-conscious condition and was unable to speak. From this the learned counsel for the appellant tried to convince us that the deceased was not in a position to speak and so the statement of Banney Khan regarding a declaration having been made to him by the deceased cannot be believed. We are, however, unable to accept the submission of the learned counsel for the appellant. The occurrence had taken place at 11-00 P.M. The injured was examined at 11-35 P.M. According to Banney Khan, he approached Mullu immediately after he was fired at. Thus, there was a gap of about half an hour when the deceased was shot at and his injuries were examined by Dr. Nafisul Hasan. At the time Mullu was shot at, his injuries were fresh and he may have been in a condition to speak, but subsequently half an hour thereafter it is likely that he may not have been in a position to speak on account of the agony or semi-consciousness resulting from the said injuries. In this connection it is important to note that Dr. R.D. Tripathi (P.W. 1) has given his opinion that after taking into consideration the injuries, it is not necessary that the injured must have become unconscious immediately after receiving the injuries. In these circumstances, the statement of Banney Khan that Mullu had declared Rafiq as his assailant cannot be said to be improbable.
18. Banney Khan is an independent person, having no prejudice or malice against the appellant. It cannot, therefore, be believed that he will make a false statement to implicate the appellant.
19. It is well settled that there can be conviction on the basis of dying declaration alone and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is truthful and not vitiated in any manner. The satisfaction of the Court may be based on various circumstances and considerations. Where deceased was in a fit state of mind to make a statement after he had a clear opportunity to observe and identify his assailant and that he was making the statement without any influence or rancour, it can be accepted without corroboration and the conviction can be founded on it.
19A. In this case we find that there was sufficient light and so the deceased had ample opportunity to see and identify his assailant. He made the declaration immediately after he was fired at. Banney Khan was the first person to approach him. In between no interested person had an opportunity to go near him and so there was no occasion of his being tutored. The statement was made by the deceased voluntarily and without any rancour. In the circumstances, there is no reason to disbelieve his declaration and conviction can be based on it without any further corroboration.
20. The statement of Banney Khan that when he reached the place from where he had heard the shots he saw the deceased lying injured with firearm injuries, who was crying out that he had been fired at by the appellant Rafiq is fortified from his earlier statement that immediately before the occurrence he saw the appellant reaching the place of occurrence where Mullu was closing his shop and he heard the firing of shots and immediately thereafter saw the appellant running away. Therefore, in the aforesaid circumstances of the case, the dying declaration of the deceased Mullu which is fully corroborated by the statement of Banney Khan will be enough for upholding the conviction of the appellant on the charge of murder of Mullu.
21. Another argument was that the F.I.R. does not mention about dying declaration, hence it cannot be believed. It may be repeated that the F.I.R. was scribed by Banney Khan at the dictation of Shafiq and consequently he wrote that Shafiq dictated to him. Moreover, reference about dying declaration was made by Shafiq, Sakir Husain and Shaukat Ali also apart from Banney Khan, in their statement under Section 161, Cr.P.C. which have been duly proved after they were declared hostile. Each one of them had therein stated that immediately after sustaining injuries, Mullu was crying out that he had been fired at by the appellant Rafiq. It is impossible to conceive that the Investigating Officer while recording the statements of the eye-witnesses under Section 161, Cr.P.C. could have anticipated that all other eyewitnesses, except Banney Khan, will turn hostile. It cannot, therefore, be said that the I.O. has falsely recorded in their statements that after sustaining injuries Mullu crying out that Rafiq was the assailant. In these circumstances, the absence of reference to the dying declaration in the F.I.R. does not cast any cloud on the authenticity of the dying declaration which otherwise is trustworthy and truthful. To our mind, the dying declaration is not vitiated in any manner whatsoever. It can, therefore, safely be acted and made the basis of conviction.
22. In view of the above discussion, we come to the irresistible conclusion that it was the appellant Rafiq, who on the date and time mentioned in the F.I.R. fired at Mullu while he was closing his shop. Mullu died on account of the injuries sustained by him. The appellant fired at Mullu with the intention to kill him. He has, therefore, rightly been convicted and sentenced as above.
23. Consequently, the appeal is hereby dismissed. The conviction and sentence for life imprisonment of the appellant are confirmed. The appellant is on bail. He will surrender to serve out the sentence awarded.