TMI Blog2010 (12) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... AL NO. 1668 OF 200 - - - Dated:- 16-12-2010 - HARJIT SINGH BEDI, P. SATHASIVAM AND CHANDRAMAULI KR. PRASAD, JJ. JUDGEMENT HARJIT SINGH BEDI, J. This appeal by way of special leave arises out of the following facts: 1. At about 9.30 p.m. on the 3rd of April, 1979, Mohd. Ashfaq, a practicing Advocate, residing in Mohalla Kapoorpur of Ghazipur town, was returning home after visiting Suhasini Talkies. As he reached near the house of Saeed Khan, he found the four accused, Mukhtar, Abrar, Mateen and Usman, all armed with country made pistols, standing near the door of the house. Mohd. Ashfaq recognized them in the light of the torch that he was carrying. Apprehending danger, Mohd. Ashfaq ran towards his house which was close by, ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate from the Doctor that the injured was fit to make a statement. Mohd. Ashfaq died the next day in the hospital at Varanasi and a case under Section 302 of the IPC was thereupon entered against the accused. The dead body was also subjected to a post-mortem examination and it revealed much the same injuries as detected at the time of the medical examination in the District Hospital, Ghazipur but on the opening of the body the large and small intestines and the kidneys were found to be lacerated. The doctor opined that the death had occurred due to shock and haemorrhage resultant to abdominal injuries. The accused were, accordingly, arrested and ultimately brought to trial for an offence punishable under Section 302/34 of the IPC. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occur in any statement recorded in Court and the discrepancy with regard to the presence or otherwise of a light which figured in one statement and did not figure in the other was of little or no consequence in the facts. The Court then examined the dying declarations and observed that in so far as accused Mukhtar, Mateen and Usman was concerned, no direct and positive role had been assigned to them in the three dying declarations of the deceased and it was the single shot attributed to Abrar, the present appellant, which had killed the deceased. The Court also held that if Mukhtar, Mateen and Usman had also been carrying country made pistol, they would in normal circumstances, have used them as well. The Court also observed that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been possible for the deceased to have recognized the four assailants as there was no evidence to show that he was either carrying a torch or there was any electric light available at the site where he had been shot. 5. The learned counsel for the State has, however, supported the judgment of the High Court by pointing out that the dying declarations were categorical inasmuch that the four accused had been named in each one of them and that three accused who had been acquitted had got the benefit of doubt only on the ground that no shot had been fired by them. It has been submitted that there was in any case absolutely no reason to discard the dying declaration recorded by the Tahsildar at 11.50 p.m. after he had taken a certi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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