MAQSOODAN & OTHERS versus STATE OF UTTAR PRADESH [AND VICE-VERSA]

Citation: [1983] 2 S.C.R. 45 · Decided: 15-12-1982 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Dismissed

Judgment (excerpt)

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45 
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MAQSOODAN & OTHERS 
v. 
STATE OF UTTAR PRADESH [AND VICE-VERSA] 
December 15, 1982 
[D. A. DESAI, BAHARUL ISLAM AND 
V. BALAl:RISHNA BRAD!, JJ.] 
P•!llll Codt-Commo• int,.tlon-How d•lerml•ed. 
Evid1nc1 .4ct-Dy/ng dtclaration-P1r1on making tht statement not d«Jd 
and deposed In Court-Statement If could be called dying declaratlo•-Such 
stattmtnl if admis1Jbl1 under section 32-Not quantum of evidence but quality 
relevant. 
The prosecution case against the 12 accused persons was that, armed 
with deadly weapons, they waylaid and assaulted the deceased and three others 
accompanying him, and that someone among another group of 12 of thCir 
associates standing at some distance constantly incited the accused wich the 
words "kill, kill". 
The deceased received serious injuries and died on the 
followin1 morning. 
While the appellant was convicted under s. 302 Indian Penal Code and 
sentenced to death, ten other accused were convicted and sentenced variously. 
One of them was acquitted. 
On appeal the High Court reduced the sentence of death passed on the 
appellant to imprisonment for life. Convictions of four of tho 11 accused were 
altered from under s. 302/149 and s. 307/ 149 to one under ss. 302/34 and 307/34 
I.P.C. All or them were however acquitted of the offences under s. 147or1. 148 
l.P.C. The convictions and sentences against the other six accused were set aside 
and they were acquitted. 
It was contended on behalf of the appellants that their conviction wa1 
unsustainable in law because the evidence of the eye witnesses. who were 
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interested parties, could not be safely relied upon. 
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Dismissing the appeal, 
HELD : The High Court erred in stating that the testimony of the four 
eye witneases suffered from numerous infirmities, that they made improvements 
in theit testimoney and that there were variations in their earlier and later 
statements. On that count alone their testimony could not be held to be infirm. 
It is tbe duty of the Court to remove the grain from the chafl'. [49 CD] 
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46 
SUPREME COURT REPORTS 
( 1983) 2 s.c.R. 
The parties were inimical for a long time. The four witnesses were the 
injured persons and therefore, their presence at the time and place of occurrence 
could not be doubted. 
The presence of all the four accused in the scene of 
occurrence and their participation in· the crime had been proved beyond 
reasonable doubt despite the improvements and variations in the evidence of 
witnesses. [49 E-F] 
In a case of this kind it is not the number of witnesses examined or the 
quantity of evidence adduced by the prosecution that counts. It is the quaJity 
that counts. Eye witnesses, examined in the case were the best and natural 
witnesses. 
The accussed persons were known to the witnesses and they 
did not have any reason to omit the real culprits and implicate falsely accused 
persons. [49 G-H; 50 CJ 
A statement, written or verbal, of relevant facts made by a person who 
is dead, is called a dying declaration and is admissible in evidence under s. 32 
of the Evidence Act. But when a person who has made a statement, even if it 
be in expectation of death but is not dead, it is not a dying declaration. It is not 
admissible under s. 32 of the Evidence Act. 
[50 B-PJ 
In the instant case the two witnesses whose statements were erroneously 
called dying declarations by the High Court were alive and deposed in the 
case. Such statements are admissible under s. 157 of the Evidence Act as 
former statements made by them to corroborate their testimony in the Court. 
[50 P-GJ 
Common intention is a question of fact and is subjective. It can be 
inferred from facts and circumtances. ln the in!tant case the appellants who 
were related to one anotheriwere armed with deadly weapons when they waylaid 
and attacked the deceased and his companions, someone incited them to "kill", 
and after the assault they left the scene of occurrence together and they were 
arrested from ihe same place. 
There was the therefore common intention 
and the High Court was justified in convicting them under s. 302/34, IPC. 
f52 A-CJ 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 175 
of 1974. 
Appeal by special leave from the judgment and order dated 
the 18th October, 1973 of the Allahabad High Court in 
Crl. 
Appeal Nos. 1307 and 1966 of 1973. 
AND 
Criminal Appeal Nos. 367-369 of 1974. 
Appeals by special leave from the judgment and order dated 
H 
the 18th O

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