MOHD. ASIF versus STATE OF UTTARANCHAL

Citation: [2009] 4 S.C.R. 12 · Decided: 06-03-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

[2009] 4 S.C.R. 12 
A 
MOHD. ASIF 
v 
... 
STATE OF UTTARANCHAL 
CRIMINAL APPEAL NO. 78 OF 2007 
B 
MARCH 6, 2009 
(S.S. SINHA AND ASOK KUMAR GANGULY, JJ.) 
Penal Code, 1860 : 
Sections 300, 302, 304 Part II, 326 - Conviction uls 3021 
c 34 - Affirmed by High Court - On appeal, Held: It cannot be 
.. 
said that the death did not take place due to the injury inflicted 
- Not a case which attracts provisions of s. 304 Part II ors. 326 
- Rightly convicted u/s 302 - Evidence - Dying declaration. 
D 
In this appeal against High Court's judgment 
convicting the appellant for an offence punishable under 
s.302/34 confirming the order of the trial court, reliability 
of the dying declaration, whether the death was caused 
due to the injury caused and for converting the sentence 
E from s.300 IPC to s.304 IPC were involved. 
Dismissing the appeal, the Court 
HELD: 1.1 Pulmonary embolism is caused by reason 
of the blockage in the lungs, a clot may form on any part 
of the body and then travel upto the lungs. Pulmonary 
... 
F embolism is an extremely common and highly lethal 
condition that is a leading cause of death in all age groups. 
It may arise from anywhere in the body. It may be caused 
even during long air travels as commonly it arises from 
G the calf veins. It is not a disease by itself. It has been argued 
on behalf of the appellant that the death of the deceased 
occurred due to pulmonary embolism as a result of the 
~ 
operation that he had to undergo after the incident and 
not due to the injury caused to him at the time of the 
H 
12 
MOHD. ASIF V. STATE OF UTTARANCHAL 
13 
scuffle. This argument as rightly pointed out by the lower A 
.... 
court is misconceived. [Para 8] [20-D-F] 
1.2 The operation of the deceased was necessitated 
because of the injury inflicted upon him at the time of the 
incident and there would have been no question of 
B 
subjecting him to such an operation had he not been so 
seriously injured in the incident. The operation of the 
deceased became necessary on account of the injury. It 
can hardly be argued that his death did not take place 
,.._ 
due to the aforesaid injury. [Para 1 OJ [24-G] 
Medical Dictionary, 2nd Edition, by P.H. Collin and c 
Taylor's Principles and Practice of Medical Jurisprudence -
referred to. 
2. Dying declaration in this case has been held to be 
reliable. The level of reliance to be placed on a dying D 
--; 
declaration by a court has now come to be well settled. If 
it is trustworthy, a judgment of conviction can be based 
thereupon. [Para 8] [20-F-G] 
Ranjit Singh & ors. Vs. State of Punjab (2006) 13 SCC 
130; Shakuntala (Smt.) vs. State of Haryana (2007) 10 SCC E 
168; State of Rajasthan vs. Parthu (2007) 12 SCC 754 and 
Samadhan Dhudaka Kofi vs. State of Maharashtra (2008) 16 
SCALE 66 - relied on. 
~ 
3.1 The Explanation appended to s.300 IPC states 
F 
that whether the provocation was grave and sudden 
enough to prevent the offence from amounting to murder 
is a question of fact. It is not a case of exercise of right of 
private defence. The provocation was not given by a thing 
done in obedience to the law, or by a public servant in the 
..j 
lawful exercise of the powers of such public servant. The G 
provocation, if any, was sought for by the offenders. In 
this case, appellant and the co-accused must be held to 
have known that it was so imminently dangerous that it 
must, in all probability, cause death or such bodily injury 
as is likely to cause death.[Para 14] [26-G-H; 27-A-B] 
H 
14 
SUPREME COURT REPORTS 
[2009] 4 S.C.R. 
A 
3.2 Applying the settled legal principles, there is no 
doubt in that it is not a case which attracts the provisions 
of Section 304 Part II of the IPC or Section 326 thereof . 
[Para 14] [29-B] 
Virsa Singh vs. State of Punjab AIR 1958 SC 465 and 
8 Kesar Singh & Anr. Vs. State of Haryana 2008 (6) SCALE 433 
- relied on. 
4. The present case is not a case where the 
intervening ailment was wholly unconnected with the 
c injury. The appellant has rightly been found guilty of 
commission of an offence under Section 302 of the IPC. 
[Para 16] [31-A-C] 
Manubhai Atabhai vs. State of Gujarat (2007) 10 SCC 
358 - relied on. 
D 
Dashrath Singh vs. State of U.P (2004) 7 SCC 408 -
held inapplicable. 
Chowa Manda/ & anr. Vs. State of Bihar (Now Jharkhand) 
(2004) 13 SCC 231; State of Rajasthan vs. Jara Ram (2005) 
E 10 SCC 591 and Gokul Parashram Patil vs. State of 
Maharashtra (1981) 3 SCC 331 - distinguished. 
Case Law Refere

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