JUDGMENT K.N. Ojha, J.
1. These appeals have been preferred against order of conviction and sentence dated 31-7-1980, passed by learned V. Addl. Sessions Judge, Allahabad, in S. T. No. 382 of 1978, State v. Sangam Lal Singh and Darlyeo Singh, through which Sangam Lal Singh has been convicted under Section 302 read with Section 109, I.P.C. and Dariyao Singh has been convicted under Section 302, I.P.C. and both of them have been sentenced to undergo life imprisonment.
2. We have heard Sri D.R. Chaudhary, learned counsel for the appellants and Sri G.S. Bisariya, learned A.G.A. for the State and have gone through the record.
3. According to prosecution one Raj Bahadur Singh resident of village Ganja, P. S. Pura Mufti, district Allahabad, lodged F.I.R. on 11-8-1978 at 7.30 p.m. against appellants, at police station Pure Mufti district Allahabad under Section 307, I.P.C. containing the fact that appellant Sangam Lal Singh had damaged the ridge of his field, hence, altercation of hot talk had taken place between Dhaukal Singh, father of Raj Bahadur Singh and sons of Sangam Lal Singh. The occurrence did take place on 11 -8-1978 at 9 a.m. Dhaukal Singh had gone to the residence of Sardawan Singh for Panchayat in this matter. There Chandra Bhan Singh, Narvada Singh and Tribhuwan Singh were also present. Sangam Lal Singh and Dariyao Singh came there and exchange of hot talk did take place on which Sangam Lal Singh made exhortation and Dariyao Singh caused injury with country made pistol to Dhaukal Singh, who fell down on the spot. Dariyao Singh ran away and Dhaukal Singh was brought to Medical College. Allahabad.
4. Statement of Dhaukal Singh victim was recorded by Hiramani Singh Yadav, Executive Magistrate, Allahabad on 11 -8-78 at 7.15-p.m. in Swaroop Rani Nehru Hospital, Allahabad. The statement was made before a Doctor, who certified that Dhaukal Singh was mentally sound to make the statement to the Magistrate about the circumstances in which the injuries were caused to him. Dhaukal Singh stated that on the exhortation of Sangam Lal Singh, Dariyao Singh fired him because there was dispute about the ridge of the land between Dhaukal Singh and the appellants.
5. Later on Dhaukal Singh died. Thus, the statement of Dhaukal Singh, recorded by the Magistrate Hiramani Singh Yadav, has been treated as dying declaration.
6. Investigating Officer reached the spot, prepared site plan, recorded the statement of the witnesses under Section 161, Cr.P.C. The post-mortem examination was done on the dead body of Dhaukal Singh by Dr. R.N. Sharma. In the opinion of the Doctor, Dhaukal Singh, was aged about 65 years, following ante mortem injuries were found on his body :--
1. Firearm wound of entry on the right side of chest in 1/4" diameter. Slight blackening was present. No tattooing or scorching was present and the wound was circular.
2. Firearm wound on entry in 1/4" diameter with fresh bleeding on left side of abdomen. Blackening was present and there was no tattooing.
3. Two firearm found of entry in 1/4" diameter with lacerated margins. Blackening was present and there was scorching. Fresh bleeding was present.
4. Two firearm wound of entry in 1/4th diameter with lacerated margin, 1" apart of medial aspect of left thigh. Fresh bleeding and blackening were present.
7. In the opinion of Doctor, these injuries were used by firearm and it could be of 9 a.m. of 11-8-1978.
8. After the charge-sheet was submitted against the appellants, they faced trial before the Addl. Sessions Judge.
9. Prosecution examined P.W. 1 Sardawan Singh, P.W. 2 Raj Bahadur Singh, P.W. 3 Rajendra Dayal, P.W. 4 P.D. Pandey, Investigating Officer, P.W. 5 Radha Krishna Yadav, in charge out-post Badshahi Mandi Police Station Kotwali, Allahabad, who conducted the inquest report of the dead body of Dhaukal Singh, P.W. 6 Harpal Singh Yadav, S.I. and other formal witnesses.
10. Accused appellants examined D. W. 1, Dr. S.K. Patwari D.W. 2 Constable Tribhuwan Singh and D.W. 3 Raj Murati Lal, Sessions Clerk.
11. After appreciating the evidence produced by the parties learned Sessions Judge found that the charge was proved against the appellants, hence the order of conviction and sentence was passed against the appellants, against which instant appeal has been preferred.
12. The defence case of the accused is that injuries were caused on the side of the accused persons at about 10 or 11 a.m. when Sangam Lal Singh and his son Ram Lakhan were injured. Some one fired in the crowd as a result of which Dhaukal Singh was injured, Raj Bahadur Singh lodged false F.I.R. against the appellant and they have been falsely implicated.
13. It has been submitted by the learned defence counsel that the original file has been missed from the Sessions Court and, therefore, the judgment cannot be delivered on merit. We have considered this point. Learned Sessions Judge got the papers reconstructed. There is copy of the F.I.R. and the statements of the prosecution and defence witnesses, copy of the judgment, site plan etc. Thus, there is sufficient evidence on record, from which the judgment delivered by the learned Sessions Judge can be appreciated and the appeal can be decided on merit.
14. In this case informant P.W. 2 Raj Bahadur Singh has duly proved F.I.R. written by Gulab Singh, P.W. 9 Sharda Prasad. constable clerk at police station Para Mufti registered the case under Section 307. I.P.C. against both the appellants. Dhaukal Singh succumbed to gun shot injuries on 12-8-1978 at 5 a.m. The statement of P.W. 2 Raj Bahadur Singh has explained as how the occurrence did take place. He has also admitted that there was distance of 32 steps between Dariyao Singh appellant and Dhaukal Singh deceased at the time of fire and blood was found in 'Kothari' and on the quit. The statement of Raj Bhadur Singh is supported by the dying declaration of Dhaukal Singh, which was recorded by P.W. 8 Hira Mani Singh Yadav, Executive Magistrate, Allahabad on 11-8-1978 at 7.15 p.m. at Swaroop Rani Nehru Hospital, Allahabad. P.W. 3 Dr. Rajendra Dayal certified medical fitness of Dhaukal Singh at the time of recording the statement. In dying declaration of Dhaukal Singh, it was specifically stated that Dariyao Singh had caused firearm injuries to him on 11-8-1978 at 9 a.m. and Dariyao Singh is the resident of his village Ganja and is his Pattidar, He specified that ill will was existing between the parties and Dariyao Singh had exhorted to Sangam Lal Singh. Thus, specific particulars of the occurrence have been given. Time, place, weapon, motive etc. have been specifically mentioned. Therefore, in our opinion, learned Sessions Judge has a rightly believed the dying declaration, made by Dhaukal Singh.
15. Learned counsel for defence has submitted that the dying declaration has been recorded in a narration form. in 1989 Cri LJ 1350 "Tehal Singh v. State of Rajasthan" it has been held by Hon'ble the Supreme Court that recording of the substance of the person making dying declaration adjoins no infirmity with dying declaration. Executive Magistrate Hiramani Singh Yadav (P.W. 8) and the Doctor, certified the mental Condition of Dhaukal Singh to be fit for making dying declaration. P.W, 3 Dr. Rajendra Dayal, has stated that Dhaukal Singh had made the statement when he was in his senses and there was no person to prompt or influence him. In AIR 2002 SC 2973 : (2002 Cri LJ 4095) "Laxman v. State of Maharashtra" it has been held by Hon'ble the Supreme Court that what is essentially required is that the person who records dying declaration must be satisfied that the deceased was in a fit state of mind. In this case dying declaration was recorded by the Executive Magistrate in writing and the medical condition of Dhaukal Singh was certified by the Doctor to be fit as is deposed by him before the learned Sessions Judge. F.I.R. was lodged under Section 307, I.P.C. It was later on converted under Section 302, I.P.C. which shows that Dhaukal Singh was alive and later on died. The occurrence did take place in broad day light. Thus, it cannot be doubted that Dariyao Singh fired on the victim resulting into his death, the statement of Dhaukal Singh, which in the nature of dying declaration supports the statement of P.W. 2 Raj Bahadur Singh, who also was present in the 'Panchayat', when the occurrence did take place.
16. The defence case is that injuries were caused to appellant Sangam Lal Singh and his son Ram Lakhanand some one fired from crowd, as a result of which Dhaukal Singh died. Thus, appellants cannot be blamed for the injuries caused to Dhaukal Singh. Ram Lakhan son of Sangam Lal Singh was examined by D.W. 1 Dr. S.K. Patwari, Medical Officer of P.H. Chayal and the following injuries were found on his body on 11-8-1978 :--
1. Lacerated wound on scalp 2 cm. x .2 cm. x muscle deep on temporal bone.
2. Swelling with pain on the left side arm.
2. Contusion with swelling on the right hand on dorsal side of little finger.
4. Contusion, reddish blue, on lateral side 4 cm x 2 cm.
17. Sangam Lal Singh was examined at P.H C. Chayal and the following injuries were found by the Doctor on his body :--
1. Lacerated wound between thumb and the index finger of right hand.
2. Contusion over the right forearm, 3 cm x 2 cm on right wrist joint.
18. Dr. S.K. Patwari was examined by the accused as D.W. 1, who stated that injuries of Ram Lakhan and Sangam Lal Singh were simple in nature and were caused by some blunt object including lathi. He has stated that page Nos. 105 to 109 of medico legal registered was blank and he did not note down the place of injury No. 4. It was stated by him that the injuries of Sangam Lal Singh could be self inflicted. Thus, the injuries of Sangam Lal Singh and Ram Lakhan are not of such nature that it may be concluded that some persons were causing injuries to Ram Lakhan and Sangam Lal Singh and some one fired from the crowd and firearm injuries were caused to Dhaukal Singh resulting into his death. It was a broad day light occurrence. The occurrence did take at the door of Sardawaji Singh (PW. 1). When the parties are of the same village, it cannot be believed that in the crowd of such nature, a person was not knowing the other person. Any outsider had not gone to cause injuries to another person. Thus, the defence version is not worthy to be believed that some one fired from the crowd and the appellants had no concern with the injuries resulting in the death of Dhaukal Singh. The injuries of Ram Lakhan and Sangam Lal Singh cannot at all be pleaded as justification for causing fatal injuries to Dhaukal Singh in self defence. Thus, the statement of Raj Bahadur Singh (P.W. 2) and dying declaration made by Dhaukal Singh deserve to be believed rather than the version raised by the defence.
19. Learned counsel for the defence has submitted that the witnesses Chandra Bhan Singh, Narbada Singh, Tribhuwan Singh and Lal Bahadur have not been examined, who are said to be the eye-witnesses of the occurrence. P.W. 2 Raj Bahadur Singh has deposed that Chandra Bhan Singh, Narbada Singh and Tribhuwan Singh are men of party of accused, therefore, they avoided to depose truth before the Court. He has also stated that witness Lal Bahadur Slngh has been killed. Therefore, only Raj Bahadur Singh son of the deceased was present on the spot, who has corroborated the dying declaration of Dhaukal Singh: In these circumstances, if there is no independent witness from the side of the prosecution, the occurrence cannot be doubted.
20. Active role of Dariyao Singh is proved by the prosecution evidence, but neither Sangam Lal Singh, father of Dariyao Singh, had gone to the door of Sardawan Singh with any weapon nor any injury was caused by him to Dhaukal Singh or Raj Bahadur Singh. It is not the case of prosecution that Sangam Lal Singh caught hold of Dhaukal Singh. In dying declaration Dhaukal Singh deposed that on the challenge of Sangam Lal Singh, Dariyao Singh caused firearm injury to him. When Sangam Lal Singh was not armed with any weapon, it cannot be believed that intention of Sangam Lal Singh in making such challenge was for committing murder of Dhaukal Singh. If the intention of Sangam Lal Singh would have been so, he must have been armed with some weapon. Therefore, the charge under Section 302 read with Section 109, I.P.C. is not proved against him, but the charge under Section 302, I.P.C. is proved against Dariyao Singh.
21. Therefore, the appeal No. 17/14/ 1980 succeeds. Sangam Lal Singh is acquitted of the charge under Section 302 read with Section 109, I.P.C. He is on bail. He need not surrender. His sureties are discharged.
22. The appeal No. 2304/1980 of Dariyao Singh is dismissed and the order of conviction and sentence of life imprisonment passed by Vth Additional Sessions Judge, Allahabad passed against him, under Section 302, I.P.C. is confirmed. He is on bail. His bail is cancelled. Let Dariyao Singh be arrested and sent to Jail to serve out the sentence.
23. Let a copy of this judgment along with record be sent to the Court below for compliance and to report to this Court within two months.