Abdul Sattar vs The State Of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 19 October 1955

Coram: Bhagwati

In this appeal with special leave, the Supreme Court examined a decision of the High Court of Mysore that had set aside the acquittal granted by the Sessions Judge of Bangalore. The appeal concerned a charge under section 302 of the Indian Penal Code, which relates to murder. The appellant, identified as accused number one, was alleged to have shot and killed a person named Abdul Lateef Sab on the night of 9 March 1949 at approximately ten o’clock p.m. in the village of Kodihalli, located in Kankanahalli Taluk. Two other individuals – the appellant’s son, who was accused number two, and the son’s friend, accused number three – were charged under section 302 read with section 34 of the Indian Penal Code on the basis that they were present at the scene and had actively participated in the commission of the offence. The learned Sessions Judge had acquitted all three accused, holding that the evidence presented by the prosecution was insufficient to sustain a conviction. The State of Mysore appealed this acquittal to the High Court. The High Court reversed the Sessions Judge’s finding with respect to accused number one, convicting him of the murder charge and imposing a sentence of transportation for five years, taking into account his advanced age and the particular circumstances of the case. The acquittals of accused numbers two and three, however, were left undisturbed by the High Court.

The evidence against accused number one was primarily circumstantial rather than direct. The prosecution argued that several facts inevitably pointed to his guilt. First, there existed a known ill-will between the accused and the deceased. Second, multiple impartial witnesses reported seeing the accused at the time and place of the incident. Third, the accused was observed fleeing the scene immediately after the shooting. Fourth, he evaded arrest and did not present himself before authorities until three months later. Fifth, the deceased made a dying declaration, albeit an incomplete one, at about eleven-forty-five p.m. on the same day, roughly an hour and a half after the incident. This declaration was supported by the testimony of PW 20, Range Gowda, and PW 14, 15, and 16. Sixth, a rag identified as MO 5, which was said to smell of gun-powder, was found near a hedge close to the location of the shooting. The prosecution contended that these pieces of evidence collectively indicated that the deceased had sustained a gunshot wound inflicted by the accused that night. The Sessions Judge acknowledged the existence of animosity between the accused and the victim but concluded that motive alone did not constitute sufficient proof of murder. He found that the witness testimonies were not conclusive enough to establish beyond reasonable doubt that the accused fired the fatal shot, and he regarded the dying declaration as lacking independent corroboration. Additionally, he noted that the alleged firearm was never recovered, nor were any other items associated with the shooting found except for the small cloth fragment. The judge also observed that there was no evidence showing that the accused had ever handled a gun or possessed the necessary skill, courage, or capacity to fire accurately from a distance of four to six feet behind a hedge at a moving target on the road.

In the Sessions Court, the judge held that the existence of ill-will between the deceased and accused No 1, while relevant, could not by itself constitute proof of murder and, therefore, could not be the sole ground for conviction. He found the testimony of the witnesses insufficient to establish beyond doubt that accused No 1 had fired the fatal shot, and he considered the dying declaration of the deceased inadequate for a conviction because, in his view, it lacked corroboration by any independent evidence. The judge was particularly persuaded by the fact that the firearm allegedly used by accused No 1 had not been recovered, and that the only physical item linked to the shooting was a small piece of cloth, identified as M.O. 5, which was said to smell of gun-powder. No evidence was presented showing that accused No 1 had ever handled a gun, nor was there proof that he possessed the necessary skill, courage, or capacity to shoot accurately from a distance of four to six feet behind a hedge at a target moving on the road. The medical examiner’s report indicated that the wounds on the deceased’s body progressed from below upward, and, in the absence of any ballistic expert testimony, the judge found it difficult to conclude that the shot had been fired from behind a three-foot-high hedge. He reasoned that if a gun had been placed on the top of the hedge and discharged, the resulting injuries would have been directed from above downward, which was inconsistent with the post-mortem findings. Consequently, the judge regarded the prosecution’s evidence as meagre and insufficient to prove the offence, noting that reasonable doubt remained, especially due to the lack of expert evidence, and that such doubt must benefit the accused. Accordingly, he rejected the unanimous view of the assessors that accused No 1 was guilty and ordered his acquittal. Conversely, the High Court, on appeal, adopted the opposite view. It accepted the testimony of witnesses concerning events that occurred before the shooting. The elder brother of accused No 1, identified as P.W. 21, testified that all the accused had assembled at accused No 1’s residence at approximately ten-thirty in the morning and that he overheard them saying that the deceased was to be murdered. Further, P.W. 10 reported seeing accused No 1 at his shop at about seven-thirty in the evening, while P.W. 16 observed him moving toward the deceased’s flour mill at eight o’clock. Finally, P.W. 12 stated that he saw accused No 1 peering into the mill premises at around nine p.m., thereby placing the accused in the vicinity of the crime shortly before the incident.

In this case, witnesses testified that P.W. 12 observed the accused No. 1 on the premises at approximately nine o’clock in the evening. In addition, P.W. 20, identified as Range Gowda, stated that he had been with the deceased until the deceased reached his own house and that, suddenly, he heard the report of a gunshot followed by the dying declaration of the deceased, who shouted, “Sattar shot me off… I am ruined… Please come Range Gowda.” After hearing this, Range Gowda switched on his torchlight and proceeded toward the spot where the deceased lay; while moving in that direction, he reported seeing the accused No. 1 running toward the mosque carrying a gun in his hand. P.W.s 18 and 19 further corroborated this sequence by stating that they heard the gunshot and immediately thereafter saw the accused No. 1 running toward the tank. Their observations were supported by the testimony of P.W.s 14, 15 and 16, each of whom said that the deceased, after the incident, shouted that Sattar had shot him. Physical evidence also emerged in the form of a piece of cloth, identified as M.O. 5, which was noted to have the smell of gun-powder and is the type of material used as a wad to secure a gun muzzle before firing. Moreover, the dying declaration of the deceased, though incomplete because of his weakened condition, unequivocally identified the accused No. 1 as the person who shot him. The deceased’s own words were recorded as follows: “I was going home. When I came near the house of Abdul Mazeed Sab Satar, Sab shot me from the bush. He ran away. I saw.” He placed the time of the incident at ten-ten p.m. and estimated that the shot had been fired from a distance of fifteen yards. When questioned about who was with him, he stated that Range Gowda was on his side and that he stood near his house. Because the dying man was in no condition to answer further questions, his statement was treated as a dying declaration. The High Court also considered evidence of ill-will that had been established by the learned Sessions Judge, and it accepted the witnesses as independent and reliable. The Court found that the testimonies of Range Gowda and P.W.s 14, 15 and 16, together with the dying declaration, were sufficient to conclude that the accused No. 1 had shot the deceased. Additionally, the High Court examined the nature of the injuries revealed in the post-mortem report and rejected the defence argument that the mosque ground, from which the accused was alleged to have fired, was at a higher level than the road on which the deceased walked, reasoning that such a height difference would have caused injury trajectories to run from a higher to a lower point, contrary to the findings of the post-mortem examination.

The Court noted that the post-mortem report described the trajectory of the wounds as descending from above, not the reverse. It further observed that the hedge in the locality, composed of a lantana fence, contained various openings, as testified by the Sub-Overseer who prepared a sketch of the scene. Because no evidence established the exact position of the assailant, the Court held that it was conceivable the bullet could have been fired through one of those openings, thereby producing the injuries described. Regarding the lack of ballistic expert testimony, the Court rejected the argument as unrealistic and fanciful. It explained that even an expert could not determine precisely where the shooter and the victim stood at the moment of discharge, and that the established distance of fifteen yards was sufficient to account for the spread of the pellets that caused the injuries. Considering these circumstances, the Court concluded that only the first accused had been clearly shown to have fired the shot that caused the death of the deceased. The appellant’s counsel argued that the High Court should not have disturbed the acquittal ordered by the Sessions Judge because there were no compelling reasons for interference. The Court disagreed, finding that the Sessions Judge had placed undue emphasis on the need for expert evidence in gun-shot injury cases and had entertained a doubt that he labeled reasonable, despite the absence of such evidence. The Sessions Judge was held to have undervalued the testimony of independent witnesses, describing it as scant and insufficient to prove the first accused’s guilt. Although the dying declaration of the deceased had been admitted, the Sessions Judge wrongly concluded that it lacked corroboration from independent testimony. The Court was not satisfied that the Sessions Judge had viewed the evidence and the facts in the appropriate perspective. It agreed with the High Court’s reasoning that the witnesses were independent and that the dying declaration was adequately corroborated by the testimony of Range Gowda (PW-20) and by PW-14, PW-15 and PW-16. On a full appreciation of all circumstances surrounding the incident, the Court affirmed that the first accused was responsible for inflicting the gun-shot injuries on the deceased. In the Court’s opinion,

The Court held that the High Court was fully justified in overturning the acquittal order that had been passed by the learned Sessions Judge in favour of accused No 1. The appellant contended that the injuries sustained by the deceased were not gun-shot injuries. To support this claim, the appellant relied on a passage from Modi’s Medical Jurisprudence, tenth edition, page 210, which distinguishes gun-shot wounds from lacerated, punctured and incised wounds, and argued that the wounds in the present case were either punctured or incised rather than gun-shot wounds. However, the Court observed that during the cross-examination of the medical doctor who performed the post-mortem examination, no questions were put to him concerning the nature of the wounds. The doctor’s testimony remained unchallenged, and he expressly stated that he was of the opinion that death resulted from shock and haemorrhage caused by gun-shot wounds and that all the injuries could have been caused by a single shot. Because the cross-examination did not address the appellant’s medical argument, the Court concluded that, on the basis of the evidence before it, the appellant could not successfully raise the issue of the character of the wounds before this Court.

The appellant further argued that the dying declaration of the deceased was an incomplete document and therefore could not be used against him. In support of this submission, the appellant cited the observations of the Privy Council in Cyril Waugh v. The King, 54 Cal WN 503 at p. 507 (A), where the Lordships held that a dying declaration was inadmissible if, on its face, it was incomplete and it was impossible to know what the deceased might have added. The appellant also relied on the statements of Mahajan, J., in Ram Nath v. State of Madhya Pradesh, which warned against convicting an accused solely on the basis of a dying declaration without further corroboration, because such statements are not made under oath, are not subject to cross-examination, and may be rendered unreliable by the maker’s possible mental or physical confusion. The Court found that these authorities did not assist the appellant. Although the deceased’s statement was incomplete in the sense that he could not answer further questions due to his condition, the portion of the declaration that accused No 1 had shot him was clear, categorical, and directly implicated the accused. The Court noted that there was no deficiency in the part of the statement that concerned the shooting; it was complete in itself and did not require additional questioning to clarify the accusation. Consequently, the Court concluded that the appellant’s contentions regarding the wound type and the alleged incompleteness of the dying declaration could not be accepted.

In the circumstances, the Court observed that the dying declaration, although it was incomplete in other respects, was fully sufficient with respect to the allegation that accused number one had fired the fatal shot at the deceased, and therefore the prosecution could rely upon it as credible evidence. The Court further noted that the dying declaration received additional support from the testimony of Range Gowda, who was identified as witness number twenty, as well as from the evidence of witnesses numbered fourteen, fifteen and sixteen. This corroboration, according to the Court, bestowed upon the dying declaration a strong presumption of truth and significantly strengthened the case against accused number one. The Court added that these points comprised the only arguments that the appellant could properly raise before the Court, and after considering them, the Court found that none of the appellant’s submissions could be accepted. Consequently, the Court concluded that the conviction and the sentence imposed on the appellant by the High Court were to be upheld, and that the appeal filed by the appellant was to be dismissed.