LexTHE STATE OF TAMIL NADU REP. BY SECRETARY OF GOVERNMENT versus SUBAIR @ MOHAMED SUBAIR AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 17 S.C.R. 1046 A THE STATE OF TAMIL NADU REP. BY SECRETARY OF GOVERNMENT v. ,._ SUBAIR @ MOHAMED SUBAIR AND ORS. ~ (Criminal Appeal No. 162 of 2002) B DECEMBER 18, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] c Penal Code, 1860 - s. 302 - Murder - Two eye- ~ witnesses - Two dying declarations: one made before Judicial Magistrate and the other made before constable - In the dying declaration made before the Magistrate names of accused not mentioned while the same mentioned in the other dying D declaration - FIR registered on the basis of dying declaration made before the constable - Conviction by trial court - On · appeal, held: Acquittal justified - Evidence of eye-witnesses doubtful in view of their conduct - Dying declaration made before Judicial Magistrate deserves acceptance. r .._ Appellants-accused were charged for having caused E death of one person. According to prosecution the accused assaulted the deceased. PWs 1 and 2 were the -- eye-witnesses to the incident. The eye-witnesses left the deceased in injured condition. PW 3-an auto driver, took ._ him to the hospital. The deceased made two dying F declarations; one before Judicial Magistrate (PW 12) and the other before a constabJe (PW-22). In the dying declaration made to the Magistrate, he did not disclose ' ... the names of the accused, while in the dying declaration made to the constable, he specifically mentioned the }- G names of the accused. FIR was lodged on the basis of the dying declaration made to the constable. Case was_ registered uls. 307 IPC. On the death of deceased, the case was altered to one uls. 302 IPC. Trial Court held the accused guilty of offence uls. 302 IPC. High Court f- acquitted them. Hence the present appeal. H 1046 STATE OF TAMIL NADU REP. BY SECRETARY OF GOVT. v. 1047 SUBAIR@MOHAMED SUBAIR Dismissing the appeal, the Court A HELD: 1. The analysis made by the High Court to ~ direct acquittal cannot be faulted. The conduct of PWs 1 ..., and 2 is un-natural and unbelievable and their presence at the time of occurrence is doubtful and the testimonies of PWs 1 and 2 cannot be accepted. PWs 1 and 2 stated B that they had left the injured in lurch and had disappeared from the scene making deceased to cringe an auto driver to take him to hospital. Further, both PWs 1 and 2 have, ---1 stated that they did not inform about the occurrence to -.; anybody till they were asked by the police in the mid.: c night of the date of occurrence. [Paras 4 and 7] [1056-H; ""'( ~ 1057-A-B; 1058-D] 2.1. The deceased did not state in his dying declaration before the Judicial Magistrate that accused Nos. 1 to 4 were his assailants in the occurrence. Ex.P- 12 is the dying declaration of deceased recorded by, D Judicial Magistrate (PW-11 ). According to dying, declaration of deceased, the Magistrate went and saw '· deceased in the Trauma Ward of the Hospital and she put· \ (~ some questions to him and was satisfied that the injured 1 ,, was in a fit condition and she recorded Ex.P-12 statement given by deceased in the presence of PW-12 and she' E ----; obtained the left hand thumb impression of him in it. PW- f 12 has also given a certificate in Ex.P-12 that the patient ' .. was fully conscious and was able to speak throughout the recording of the statement. From the above, it is clear that the Judicial Magistrate after observing formalities had · F recorded the dying declaration of deceased in the , r" ~. presence of duty doctor. In that Ex.P-12 dying declaration, deceased had stated that the names of the assailants were not known. According to the prosecution case, deceased knew all the accused very well since he G had an encounter with all of them a few days before the occurrence as is evident from the testimony of PW-10. [Para 5] [1057-C-F] ~ 2.2. The prosecution relied on Ex.P-21 statement given by deceased to PW-22 Head Constable in the H 1048 SUPREME COURT REPORTS [2008] 17 S.C.R. A Coimbatore Medi.cal College Hospital as his dying declaration. According to PW-22, he recorded Ex.P-21 statement given by the deceased and the doctor (PW-25) ". had given a certificate in it. PW-25 was not the doctor on ~ \ duty in the ward at the time of recording Ex.P-21 B statement and he himself in the cross-examination has stated that usually the doctor incharge of the ward alone would certify in the dying declaration. Ex.P-21 stat
Excerpt shown. Read the full judgment & AI analysis in Lexace.