2. The prosecution story in nutshell is that 17.3.2000 at about 11.15 A.M. Prabhu Dayal son of Sri Aangne Lal resident of village Nagla Gagin, P.S. Chhibramau, District Kannuaj submitted a written report in P.S. Chhibramau wherein he stated that on 16.3.2000 Rakesh son of Sri Ram Swaroop resident of Kathahar in the noon came in the village along with Vimal Kishore Dubey @ Chhotey son of Bharat Dubey resident of Kasawa and pointed out towards the house of Pradhan and his elder brother and thereafter they went towards Kasawa. About 15 days before a fair was held in Kasawa, arrangement whereof was with the Pradhan and presently Smt. Krishna Devi, daughter-in-law of Rati Ram is the Pradhan. In the fair Vimal Kishore Dubey @ Chhotey under intoxication was illegally extorting money from the shop keepers, which was objected by Rati Ram, the elder brother of the complainant whereupon Vimal Kishore Dubey @ Chhotey bore enmity with them. The report further stated that on 17.3.2000 the complainant along with his elder brother Rati Ram and Raghu Nandan Shakya son of Mishri Lal Shakya resident of village Bharapur had come to Chhibramau market and were returning back in private bus no. UGR 159. When the aforesaid bus reached at Atirajpur turn Vimal Kishore Dubey @ Chhotey, who was sitting in the bus in order to kill took out 'Tamncha' and fired shot in the stomach of his elder brother Rati Ram at 10.30 A.M. and the accused made his escape good. Since the condition of the injured was precarious so he took him to Government hospital, Chhibramau in the same bus where he is undergoing treatment. On the basis of this report case crime no. 83 of 2000, under Sections 307 IPC was registered at P.S. Chhibramau, investigation whereof was taken up by Inspector Ram Prakash Singh. When injured Rati Ram reached hospital, Dr. K.N. Gupta sent a memo (Ex.Ka-10) to S.O. P.S. Chhibramau for information and necessary action stating that patient Rati Ram son of Sri Angne Lal, aged about 55 years resident of village Gagin Nagla Kasawa, P.S. Chhibramau, District Kannuaj having sustained fire-arm injury has been brought by Ashok Kumar Dubey son of Sri Ram Bharose Lal Dubey resident of Mohalla Dikshitan, P.S. Chhibramau, District Kannuaj. The same day Sri P. K. Agarwal, SDM, Chhibramau recorded dying declaration of the injured at 11.30 A.M. and before recording his statement he obtained certificate from Dr. K.N. Gupta who certified that injured is conscious and is in a position to give statement. After recording dying declaration the Doctor further certified that the injured remained conscious during statement and the statement was taken in his presence. This certificate was given at 11.35 A.M. Dr. K.N. Gupta sent another memo (Ex.Ka-11) to S.O. Chhibramau stating that Rati Ram who was admitted in injured condition having sustained fire-arm injury in the hospital at 11.00 A.M. had expired during treatment in the hospital at 11.50 A.M. On the basis of this memo the case was converted into section 302 IPC vide G.D. report no. 19 dated 17.3.2000 at 12.30 P.M. The Investigating Officer after getting information regarding registration of the case through R.T. Set reached the Government Hospital Chhibramau and interrogated the complainant. Thereafter, he took him to the place of the incident and prepared site plan. The inquest on the dead body of the deceased was conducted by S.I. Ram Singh Rathore under instructions of the S.O. at 1.00 P.M. on 17.3.2000 and thereafter the dead body of the deceased was sent for post mortem examination in a sealed cover along with usual papers. The autopsy on the dead body was conducted by Dr. B.G. Tiwari on 18.2.2000 at 11.15 A.M. He found that 55-years old deceased was of average built body. His eyes were closed and mouth was slightly distended. Dry clotted blood over abdomen was found. Both iliac Fossa were in green discoloration. Rigor mortis passed from upper limb while it was present on lower limb. He found following ante-mortem injuries on his person.
"3.5 x 3 cm. x abdominal cavity deep right side abdomen near umbilicus, margin inverted, lacerated echimosed. Blackening and Tattooing present in an area 6 x 4 cm. Omen tum was coming out."
On internal examination it was found that the heart of the deceased was empty, peritoneum and left kidney were lacerated and the cavity was full of blood. The stomach contained pasty food matter 100 grams. Gases and fecal matters were found in small and large intestines. Gall bladder was half full. The Doctor found 14 small pellets, one wading and one tikli from the body of the deceased. In the opinion of the Doctor, the deceased suffered death due to shock and haemorrhage as a result of ante-mortem injuries.
3. On 18.3.2000 the investigating officer interrogated the driver and conductor of the bus wherein the incident took place. The accused surrendered in the Court on 6.4.2000 and the same day he was interrogated in the lock-up, who allegedly confessing his guilt assured to get the weapon of offence recovered. Thereafter he filed an application for police custody remand of accused on 16.4.2000 and such remand was granted by the Court from 8.00 a.m. of 18.4.2000 till 4.00 p.m. on 19.4.2000. On 18.4.2000 the accused in custody was lodged in lock-up of the police station at 1.45 p.m. He was again interrogated at 2.15 p.m. He confessed his guilt about having committed murder of Rati Ram and stated that he had hidden the country-made pistol near half-dry tube well of Gram Panchyat situated in east of Ramlila ground. The accused then took the investigating officer to Ramlila ground of Kasava. The investigating officer procured public witnesses Jagdish and Sia Ram and in their presence got the country made pistol recovered embedded in the earth at about 5.00 p.m. The barrel of the country made pistol contained an empty cartridge. The recovery memo was prepared at the spot and its copy was furnished to the accused. On the basis of recovery memo case crime no. 115/2000 u/s 25/27 Arms Act was registered against the accused. The investigation of this case conducted by SI S. N. Gautam PW-7. The investigation in both the cases ended in charge-sheets against the accused. The articles recovered at the instance of accused and his wearing apparels were sent for examination to Forensic Science Laboratory and its report are Ex. Ka-24 and Ka-25.
4. After committal of the case to the Court of Sessions separate charges u/s 302 IPC and 25 Arms Act were framed against the accused, who abjured his guilt and claimed trial. Both the cases were tried together by the trial Court.
5. In order to prove its case the prosecution has examined complaint Prabhu Dayal PW-1, Dr. B. G. Tiwari PW-2, SDM P. K. Agarwal PW-3, Constable Bengali Singh PW-4, HC Ranjit Singh PW-5, Dr. K. N. Gupta PW-6, retired sub-inspector of police S. N. Gautam PW-7, and Inspector Ram Prakash Singh PW-8.
6. The accused in his statement u/s 313 CrPC had again denied the entire prosecution story and pleaded false implication. He examined driver of the Gyanendra DW-1 and conductor Bhoora DW-2 to say that the incident had not taken place in the bus.
7. The learned trial Court after hearing the parties' counsel through impugned judgment and order has convicted the accused-appellant u/s 302 IPC as stated in para-1 of this judgment. However, the accused was acquitted for the offence punishable u/s 25 Arms Act.
8. We have heard Sri P. N. Misra learned senior Advocate for the accused-appellant and Sri R. A. Misra, AGA for the State.
9. The homicidal death of the deceased on account of fire-arm injury has been proved through the statements of Dr. B. G. Tiwari PW-2 and Inspector Ram Prakash Singh PW-8, who have prepared post-mortem report and inquest report of the corpse of deceased respectively. The consistent case of the prosecution is that the accused fired shot on the deceased in running bus UGR-159 near Atirajpur on 17.3.2000 at about 10.35 a. m. and thereafter made his escape good. The date, time and place of incident is not disputed to the defence as well. There contention is that the accused has not caused the fatal injury to the deceased They have tried to show that the incident had not taken inside the bus, but when the aforesaid bus reached Atirajpur turn, the crowd got the bus stopped and the public boarded injured Rati Ram in the bus for being taken to hospital and the driver then took the bus to Bus Union, Chhibramu. In order to prove this case, the defence has examined Gyanendra DW-1 (driver) and Bhoora DW-2 (conductor) before the trial Court. Gyanendra DW-1 and the accused are neighbours and residents of same village. The investigating officer has stated in his deposition that he had interrogated both these witnesses on 18.3.2000, but they have denied their interrogation. On perusal of the statements of these witnesses we find that they are not consistent and improbable. According to Gyanendra DW-1, when his bus reached near Atirajpur turn, Rati Ram was lying on the road in injured condition and public boarded him in the bus for being taken to the hospital. In cross-examination he has stated that he did not enquire as to where and who has fired shot on Rati Ram. He saw him in injured condition, blood was oozing out, but did not see where he had sustained injuries? In the bus there were 50-55 passengers and he was going from Chhibramau to Indergarh and it takes about 1½ hours to cover the distance. If there were 50-55 people in the bus then the driver of the bus cannot dare to pick up any injured from the road and taking turn would came back to the place from where he had left and park the bus at Bus Union. It could happen only when the incident had taken place inside the bus. Moreover, Bhoora DW-2, the conductor of the bus has stated that when his bus reached Atirajpur turn at about 10-11 a.m. the crowd was crying that Rati Ram Pradhan is lying dead. The public stopped the bus and boarding Rati Ram took the bus to Talgram bus stand. He has stated in his examination-in-chief itself that when Rati Ram was kept in his bus then he was dead. No bus driver or conductor would carry the corpse of any one in the bus full of passengers and that too in the reverse direction. If for any any reason the bus driver and conductor agree to carry the dead body, even then the passengers would not permit them to do so. Bhoora DW-2 has stated in cross-examination that he did not see any injury or blood on the clothes of Rati Ram. He did not enquire as to how Rati Ram has sustained injuries? He did not know him from before nor he tried to ascertain his whereabouts. He has admitted that for 3-4 years he is working with driver Gyanendra. He was having good relations with him and he obeyed him. Thus the statements of both the witnesses with regard to condition of Rati Ram when he was taken in the bus are inconsistent and contradictory. It appears that due to relations of Gyanendra DW-1 with accused, both these witnesses have appeared in the witness-box to deny the incident having taken place inside the bus on 17.3.2000 at about 10.35 a.m.
10. The first information report of the crime has been promptly lodged with the police i. e. within 40 minutes of the incident. The alleged time of incident is 10.35 a.m. The distance between place of incident and police station Chhibramau is only 3 kilometers. It has come in evidence that immediately after the incident the PW-1 took his injured brother in the same bus to the hospital, admitted him there, got the written report Ex. Ka-1 prepared and handed it over at police station at 11.15 a. m. This report has been lodged by the complainant before the death of his brother. He has been cross-examined by the defence on this point, but nothing could be elicited therefrom to create any doubt about the veracity of his statement. PW 4 has stated that on 17.3.2000 complainant Prabhu Dayal came to the office of police station and handed him over a written report, on the basis whereof he has prepared check report no. 62 crime no. 83/2000 u/s 307 IPC against Vimal Kishore Dubey @ Chhotey and made its entry in GD report no. 16 at 11.15 a.m. He has proved the check report Ex.Ka-4 and copy of GD as Ex. Ka-5. He has also testified about the receipt of the death report of the deceased at 12.30 p.m. on the same day and dispatch of special report to seniors officer at 1.00 p.m. The corresponding GDs are Ex. Ka-6 and Ka-7. In cross-examination this witness has stated that prior to the instant crime a case at crime no. 82 u/s 323/324 IPC was registered at 6.30 a.m. in the police station. Thus, there is no question of ante-timing of the FIR. The instant FIR is prompt and no time was left with the complainant to pen it down after deliberations and consultation. The importance of prompt reporting of crime to the police is well known. It rules out possibilities of fabrication of the first information report on one ground or the other.
11. Learned counsel for the appellant has disputed the place of incident i. e. bus UGR-159 on the ground that no blood was taken by the investigating officer from the bus during investigation. Admittedly no blood was taken by the investigating officer from the bus in question. In this connection, PW-8 has been cross-examined by the defence and he has stated as :
" cl ds vUnj [kwu Qsyk gqvk feyk Fkk rFkk dgha dgha ?kCcs Hkh ns[kk FkkA tks [kwu esa cl esa Qsyk Fkk og cl dh Q'kZ ij yxh Vhu ij FkkA mldks iqfyl dCtk esa fy;k tkuk lEHko ugha FkkA Vhu ij Qsys gq;s [kwu dks [kjksap dj Hkh iqfyl dCts es ugha fy;k t ldrk FkkA "
The explanation given by the investigating officer in the facts and circumstances of the case is quite reasonable and plausible. It inspires confidence. Therefore, non-collection of the blood of the deceased from the bus would not adversely affect the prosecution story. It is important to note that in cross-examination of PW-1 a suggestion had been given by the learned counsel for the defence that his brother Rati Ram died in the bus after sustaining gun shot injury. This fact also confirms the prosecution case that the deceased sustained fire-arm injury inside the bus.
12. Learned senior counsel for the appellant castigating the statement of PW-1 has vehemently argued that his presence on the spot at time of incident is highly doubtful for the reason that he has not accompanied his injured brother to the hospital rather chose to first lodge the report at the police station. It was unnatural conduct of a real brother who had accompanied his critically injured brother in the alleged incident. He has drawn our attention to the memo of the doctor Ex. Ka-11 sent by him to SHO, Chhibramau intimating that the deceased had been brought by Ashok Kumar Dubey. Refuting this argument the learned AGA has stated that PW 1 was also travelling in the same bus in which the incident took place. He was returning from the market as it was festive season on account of Holi and Idu-ul-zuha, when the market open early to felicitate the people for shopping. After the incident PW 1 got the bus turned back and along with injured he came to hospital and if the doctor has not noted his name in the memo it would not disprove his presence in the hospital and belie his categorical statement in this regard. It is true that in memo Ex.Ka-10 the name of PW 1 is not mentioned, but it does not mean that PW-1 had not accompanied his brother Rati Ram to the hospital. From the prosecution evidence it appears that Rati Ram was a prominent person. His son's wife was Pradhan of the village and being less literate deceased was looking after her work, which has become prevalent now-a-days after reservation of women in allocation of seats for Gram Pradhan, Block Pramukhs, member of local bodies etc. that where the concerned woman public representative or Gram Pradhan is illiterate or semi-literate her official duties are performed by her husband or other elder male member of the family and if he is husband people called him 'Pradhan Pati'. As such not only the PW 1 but several people must have gathered at the hospital after knowing about the incident. PW-1 has specifically stated in his examination-in-chief that after the incident he brought his brother to the hospital in the same bus. To quote his own words -
^^------ ?kVuk fnukad 17-3-2001 dh gsA eSa o j?kquUnu] HkkbZ jrhjke fNcjkeÅ ls vius xkao okfil vk jgs FksA cl ua0 ;w-th-vkj- 159 ls izkbosV cl ls vk jgs FksA mlh cl esa eqfYte foey fd'kksj cSBk FkkA lqcg djhc 10-35 cts dk le; gksxkA tSls gh cl vfrjktiqj ds eksM+ ij igWqph oSls gh foey fd'kksj mQZ NksVs us esjs HkkbZ ds Åij 12 cksj ds raeps ls Qk;j fd;kA xksyh esjs HkkbZ ds isV esa ukHkh ds ikl yxhA Qk;j gksrs gh MªkbZoj us cl dks jksdkA foey fd'kksj vfrjktiqj dh vksj Hkkx x;kA fQj mlh cl dks okil eqM+okdj ?kk;y jrhjke dks ysdj vLirky vk;kA jrhjke dks vLirky esa HkrhZ djk;kA rc rd esjk HkkbZ gks'k esa Fkk rFkk cksy jgk FkkA ?kVuk dh fjiksVZ bPNk jke ls fy[kk;h FkhA tks mUgksaus esjs cksyus ij fy[kh FkhA rgjhj fjiksVZ i Significantly PW 1 has not been questioned in cross-examination about negating his presence in admission of his elder Rati Ram in injured state in the hospital. Rather he has stated in cross-examination that when he admitted his brother he was conscious. He did not visit him after admission till his death. Further, in the promptly lodged written report, PW 1 has noted that his brother has been admitted in the hospital where he is going undergoing treatment. No opportunity was given to him as to how the name of Ashok Kumar Dubey had been noted by the doctor as the person who had admitted injured Rati Ram in the hospital. He has further stated that he later on came to know that his dying declaration had been recorded by the SDM. No suggestion had been given to PW 1 by the defence challenging his presence at the time of incident in the bus in question or taking the deceased to the hospital. Rather it had been suggested to him that his brother died in the bus itself after sustaining gun shot wound, which has been denied by him. The written report Ex. Ka-1 was submitted at the police station by PW-1 at 11.15 a.m., whereas the deceased was admitted in the hospital as per memo Ex. Ka-10 at 11.00 a.m. The hospital and the police station are situated in qasba Chhibramau and the distance is not much as is evident from copy of GD report no. 19 time 12.30 p. m. whereby the case was converted u/s 302 IPC. PW-1 has stated in cross-examination that he reached police station at 11.15 a. m., stayed there for 10-15 minutes and then returned back to Govt. hospital. His brother died at about 12 O'clock. He has fairly admitted that he does not know when the statement of his brother was recorded. Thus, from the evidence available on record it is proved that PW-1 had accompanied his brother Rati Ram to hospital after the incident and non-mention of his name in Ex. Ka-10 would not belie is reliable evidence on this score. In these circumstances, the law laid down in the cases cited on behalf of the appellant namely Sukhwant Singh Vs. State of Punjab (1995) 3 SCC 367, Din Dayal Vs. Raj Kumar @ Raju and others 1998(36) ACC 718 (Supreme Court) and Kochu Maitheen Kannu Salim Vs. State of Kerala 1998 (36) ACC 725 have no application.
13. From perusal of the calendar for the year-2000 we find that in the 3rd week of March, 2000, it was Id-ul-Zuha on 18.3.2000 and 20-21 March, 2000 was Holi. Judicial notice can be taken that on eve of festivals the markets in qasba and cities open early to facilitate the people of nearby villages for making purchases, so it was not unnatural that the deceased and PW-1 were returning from Chhibramau market. It has come in cross-examination of PW 1 that he left home for Chhibramau at 8 a. m. which is only 7-8 kilometers from his village and returned back at 10.30 a. m. and market opened in the morning due festive season. Rati Ram met him in the bus and they had left home separately. He was carrying a bag in his hand and it reached private bus union people. The testimony of PW 1 is consistent, clear and reliable. There is no contradiction in his statement vis-a-vis the other evidence available on record. No doubt he is real brother of the deceased, but his testimony cannot be thrown on board on the ground of his relationship with the deceased. It is true that there were other people in the bus where the incident took place, and no one has been examined by the prosecution, but it would not make any difference because no one would come forward to depose against a person who is committing crime in broad-day light and whose antecedents, in the wake of incident that took place in the fair about a fortnight ago between the accused and the deceased, were not good at all. Although the bus driver and conductor have deposed that the deceased did not sustain injury inside the bus, but they could not dare to say that the accused has not caused fatal fire-arm injury to the deceased. They have simply pleaded ignorance about the person who had inflicted injury on the deceased.
14. The motive for the crime has been attributed to the accused as about a fortnight ago in a village fair the deceased objected to illegal extortion of money by the accused in drunken state and at that time scuffle took place between them and the later threatened to see him after the fair. PW 1 has testified these facts in his examination-in-chief, but surprisingly no question had been asked from this witness during his cross-examination. If a factual statement given by a witness in his examination-in-chief is not questioned or controverted during his cross-examination then there is no difficulty in believing that part of his statement if otherwise it is not probable, realistic or absurd. Contrary to it, no suggestion had been given to PW-1 for false implication of the accused in the case. A simple suggestion had been given to him at the end of cross-examination that his brother had been killed by others due to election animosity and the accused had been falsely implicated in the case, which had been categorically denied by the complainant.
DYING DECLARATION OF THE DECEASED
15. The most important piece of evidence against the accused is the dying declaration of the deceased which was recorded by SDM P. K. Agrawal PW 3 on 17.3.2000 at 11.30 a.m. in Govt. Hospital, Chhibramau. Sri Agarwal has visited the hospital for this purpose on telephonic information of Dr. K. N. Gupta PW-6. Learned AGA has placed heavy reliance on the dying declaration Ex.Ka-3 of the deceased. Per contra learned counsel for the appellant has submitted that it is a fabricated document and it was not read over to the alleged injured.
16. A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentire). Matthew Arnold said, "truth sits on the lips of a dying man". which means 'a man will not meet his maker with a lie in his mouth'. The doctrine of Dying Declaration is enshrined in Section 32 of the Indian Evidence Act, 1872 (hereinafter called as, 'Evidence Act') as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
17. In Criminal Appeal no. 2297 of 2009 Lakhan Vs State of M.P. decided on 9.8.2010, the Apex Court in para-9 has held, The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.
In para-11 of the report the Apex Court has highlighted the importance of recording of dying declaration by an Executive Magistrate in the following words:
"11. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case. [ vide Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur v. State of Punjab (1999) 6 SCC 545; Koli Chunilal Savji & Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors. v. State of Maharashtra, (2008) 2 SCC 516.]"
The Hon'ble Court summarizing the law on dying declaration has observed in para-20 as under:
"20. In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
CONTENTS OF DYING DECLARATION
18. The dying declaration of the deceased Ex. Ka-13 recorded by SDM P. K. Agarwal PW-3 reads as under:
"Injured is conscious and is in position to give statement.
Sd/- Dr. K.N. Gupta 17.3.2000 11.30 A.M.
Medical Officer-in-charge, PHC, Chhibramau, Distt. Kannauj ^^c;ku jrhjke iq= vaxus yky 'kkD; mez 50 lky fu0 xkxs uxyk dlkok us c;ku fd;k fd eq>s xksyh NksVs iq= Hkkjr fu0 dlkok us dV~Vs ls xksyh ekjhA ;g ?kVuk rkyxzke jksM vfrjktiqj ds ikl dh gSA eSa cl esa tk jgk Fkk NksVs Hkh cl esa gh FkkA ?kVuk vkt fnukad 17-03-200 dks yxHkx 10-30 lqcg dh gSA esjs }kjk e`R;q iwoZ c;ku Jh jrhjke ,y-Vh-vkbZ jrhkjke fy[kk x;k ,oa ?kk;y jrhjke dk vaxwBk fu'kkuh yxok;k x;kA Sd/- P.K. Agarwal 17.3.2000 11.35 AM SDM, CBM Injured remain conscious during statement recorded and the statement taken in my presence.
Sd/- Dr. K.N. Gupta 17.3.2000 11.35 A.M.
Medical Officer-in-charge, PHC, Chhibramau, Distt. Kannauj"
19. On scrutiny of the instant dying declaration Ex. Ka-3 of the deceased we find that it contains almost everything which clearly establishes the manner of incident as also the culpability of the accused. The prosecution has examined Dr. K. N. Gupta PW-6, who has proved his memos Ex. Ka-10 and Ka-11 sent to SHO, Chhibramau after the injured was brought in the hospital and after his death. He further stated that he informed the SDM on telephone for recording dying declaration. The certificates given by him on dying declaration Ex. Ka-3 have also been proved. Sri P. K. Agarwal SDM has proved the dying declaration of the deceased. He has stated that before recording the dying declaration of Rati Ram Dr. K.N. Gupta certified that he is conscious and in a position to make statement. Thereafter he recorded the statement of injured who fully conscious and in a position to give statement. After recording the statement it was read over to him. Dr. Gupta has also testified that on his telephonic information Sri P. K. Agarwal came to hospital and recorded dying declaration of injured Rati Ram from 11.30 to 11.35 A.M. in his presence. He gave certificates before recording dying declaration and after his statements. He has further stated that the injured remained conscious during statement, it was read over to him and his thumb impression was obtained. No formal suggestion had been given to any of these official witnesses that they have any friendly relations with the deceased or any animosity with the accused. A bare suggestion had been given to Sri Agarwal that the injured was unconscious and he has fabricated the dying declaration, which had been emphatically denied by him. The dying declaration is quite brief but it contains all material particulars about the incident, e. g. the name of accused, his father's name, residence, nature of weapon, place of occurrence (both i.e. inside the bus, road and place of incidence), traveling of accused in the same bus and the date and time of incident. In view of nature and quality of evidence available on record in respect of dying declaration, the ratio given in the case (cited on behalf of the appellant) of Shaikh Bkshu and others Vs. State of Maharashtra (2008) 1 Supreme Court Cases (Cri) 679 has no application in the instant case on account of distinct facts.
20. It is pertinent to note here that PW-1 in his deposition before the Court has stated that he brought his injured brother Rati Ram to hospital and admitted him in Chhibramau hospital and till then he was conscious and speaking. On this part of the statement of PW-1 it has only been suggested to him in cross-examination that his brother died in the bus after sustaining gun shot injury. However, no suggestion had been given to PW-1 that he has prompted or tutored his brother to name the accused in his dying declaration. In these circumstances, we have no hesitation to conclude that the dying declaration Ex. Ka-3 is not suspicious at all. It is true and reliable. Further it is not the result of tutoring, prompting or imaginative. Its shortness itself is a guarantee of its veracity. Thus, in view of the laid down by the Apex Court as referred earlier, the sole dying declaration of the deceased is sufficient to bring home the guilt to the accused-appellant.
21.Learned senior counsel for the appellant has lastly argued that Dr. B. G. Tiwari PW-2 has not stated in his deposition before the trial Court that the ante-mortem fire-arm injury allegedly sustained by the deceased was sufficient in ordinary course of nature to cause his death, so at the worst the case would come within the purview of Section 304 Part-I I.P.C. and the learned trial Court has erred in convicting him for the offence punishable u/s 302 IPC. No doubt Dr. Tiwari has in so many words not stated in his examination-in-chief that the ante-mortem gun shot injury sustained by the deceased was sufficient in ordinary course to cause his death, but on reading his statement as a whole the irresistible conclusion is that the sole injury was fatal for the deceased. Perusal of the statement of Dr. Tiwari shows that the fire was shot from close range as blackening and tattooing in area of 6 cm x 4 cm was found around the entry wound. The seat of injury 3.5 cm x 3.0 x abdominal cavity deep was near umbilicus and omentum was coming coming out. On internal examination the heart of the deceased was found empty, abdominal cavity was full of blood. Peritoneum and left kidney were lacerated. The post-mortem notes Ex. Ka-2 indicates that 14 small pellets and one wadding and one tickli was recovered from the body of the deceased. The doctor has further deposed that the injury which has caused the death of the deceased could be sustained by him from fire-arm at 10.35 a.m. on 17.3.2000. In cross-examination the doctor has stated that from ante-mortem injury instantaneous death is also possible. Thus on close scrutiny of autopsy report of deceased and the statement of Dr. Tiwari we find that the gun shot injury sustained by the deceased was sufficient in the ordinary course to cause his death. The ratio laid down by a division bench of this Court in the case of Hafizulla and others Vs. State 2003 (46) ACC 550 is not applicable in this case. Similarly on account distinguishable facts the law laid down by the Apex Court in the case of Chilamakur Nagireddy Vs. State of Madhya Pradesh 1977 (14) ACC 281 has no application. In this case the Hon'ble Court found that the doctor did not say that injury caused by accused no. 6 on the person of the deceased by itself was fatal or sufficient in the ordinary course of nature to cause his death. In the facts of this case several injuries were allegedly caused to the deceased by several accused persons. Although the doctor stated that the deceased would have died of shock due to fracture of temporal skull bone, injury to descending aorta, injury to live and large intestines ascending colon and haemorrhage but later stated that extenral injury no. 1 and injury no. 2 corresponding to internal injuries no. 1 and 3 are fatal each by itself. On this evidence the Apex Court differentiated the case of accused who was attributed with injury no.6 and consequently he was found guilty for the offence u/s 326 IPC while maintained the conviction of accused no. 1 and 9 u/s 302 IPC. Here we have single accused and sole fire-arm injury sustained by the deceased which has caused his death in about 1½ hours of the incident. Not only this, there is evidence that a fortnight ago the accused extended threat to the deceased when he was resisted by the later from extorting money from small shop-keepers of the village fair and a day before the incident Rakesh s/o Ram Sarup r/o Village Kathahar came along with the accused and pointed towards the house of Pradhan and his brother. It was a broad-day light incident. The deceased did not provoke the accused in any manner before the incident. PW-1 has stated in cross-examination that his brother was sitting on the seat of the bus. Before firing shot the accused catching the collar of the deceased made him to stand and then from close range fired shot. All this happened in such a quick succession that there was no opportunity to stop or resist him. In the facts and circumstances of the case, we find that the accused had the requisite intention of causing bodily injury to the deceased which was sufficient in the ordinary course of nature to cause his death. The act of the accused is covered under third clause of Section 300 IPC, so he has been rightly found guilty for the offence punishable u/s 302 IPC and so the argument of learned counsel for the appellant cannot be accepted.
22.In view of what has been said and done above, we find that the learned trial Court has correctly appreciated the evidence on record and has not erred at all in convicting the accused-appellant u/s 302 Indian Penal Code. The prosecution has successfully proved its case against the accused beyond all reasonable doubt. Thus, the appeal is meritless and is accordingly dismissed. The accused is in jail and would serve out the remaining part of the sentence.
23.Let a certified copy of the judgment be sent to the Court concerned for compliance, which should be reported in a month.
........................Rakesh Tiwari, J .................Anil Kumar Sharma, J October 19, 2012 Imroz/-