MOHAMMED ARSHAD versus STATE OF MAHARASHTRA AND ORS.

Citation: [2006] SUPP. 9 S.C.R. 359 · Decided: 24-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

·-
MOHAMMED ARSHAD 
A 
v. 
STATE OF MAHARASHTRA AND ORS. 
NOVEMBER 24, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Evidence Act-S.32- Dying declarations-Three dying declaration 
made by deceased-Role attributed to accused in third declaration did not 
find mention in first two dying declarations-Accused stated to havz assaulted C 
deceased with stick on his back-No such injury was found on his person-
Held, he is entitled to benefit of doubt-Penal Code, 1860-ss.302134. 
Penal Code, 1860-ss.302134-Deceased had an altercation with 
accused on two earlier occasions about which he had lodged a report-
Evidence of eyewitnesses and Doctor, that vital injury could be inflicted with D 
an article which overt act was ascribed to accused -Said weapon recovered, 
pursuant to confession made by him-Conviction of accused upheld 
Prosecutions case was that PW-6 informed PW-11, Police Inspector 
about incident. When he reached the spot, he came to know that deceased was 
injured in quarrel with the appellant-Shaukat. Deceased was admitted in the E 
hospital. While in hospital, deceased gave three dying declarations. First dying 
declaration was made before the Doctor. Second dying declaration was made 
before the Magistrate which was short one, wherein the deceased named 
appellant-Shaukat, one Saleem and others, as responsible for the said incident. 
A third dying declaration was made before Investigating Officer which F 
was detailed one. Therein he stated that he was doing partnership with 
appellant-Arshad and he had invested a sum of Rs.60,000 in the said business; 
that he wanted the said money back from Arshad but he did not pay back. He 
also narrated two incidents on 8th and 14th March in which altercation had 
taken place between him and appellant-Shaukat. He further stated that on the G 
fateful day, one Salim stopped him on way and assaulted him with a knife, 
appellant-Shaukat assaulted him with knife on his chest anc1 stomach while 
appellant-Arshad assaulted him on back by a wooden stick. 
The deceased died three days after the incident. Sessions Judge relied 
359 
II 
360 
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. 
A upon the evidence of PW-2, PW-6 and PW-7 as also the dying declarations of 
the deceased and held both the appellants and Salim guilty for offence u/ss. 
302/34 JPC. The High Court upheld the same. Hence these appeals. 
B 
Allowing the appeal of Arshad and dismissing the appeal of Shaukat, 
the Court 
HELD: 1.1. Although the appellants and Salim were named in the First 
Information Report, but, it was only the deceased who could tell about the actual 
incident. He made three dying declarations. The 1st dying declaration was 
before the doctor wherein he did not name appellant-Arshad. Although, he 
C named appellant-Shaukat and Salim and stated "others", but there is no reason 
as to why despite the fact that he had later on described the motive on the part 
of Arshad, he did not take his name as one of the assailants in his 1st dying 
declaration. (366-D-F) 
1.2. In the dying declaration before the Magistrate, deceased did not state 
D in details the role played by each of the accused, as only three questions were 
put to him by the Magistrate. It was for the Magistrate to ask for the details 
_of the incident. He did not do so and presumably, therefore, the deceased had 
no occasion to state about the incident in detail. (366-G I 
1.3. The dying declaration before the Investigating Officer is a detailed 
E one. It is not in the question-answer form. He stated about his family at some 
details, his running of the business in partnership with Arshad as also the 
incidents which had taken place on 8th, 14th and 17th of March, 1999. The 
statements made by him corroborated the statements made by the eye-witnesses 
P.W.6 and P.W.7. (366-H; 367-A) 
F 
2.1. It is of some significance to point out that although, the appellant-
Arshad is stated to have assaulted the deceased with a stick on his back, no 
such injury was found on his person. He was not named in the first two dying 
declarations. He was named only in the 3rd dying declaration. The motive 
ascribed as against him did not find place in the First Information Report. 
G Evidently, the deceased made improvement in his 3rd dying declaration before 
the Police Officer. Keeping in view the backdrop of events, there is no reason 
as to why appellant-Arshad would not have been named in the 1st or 2nd dying 
declarations if the motive for his involve

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