N.N. Sharma, J.
1. This appeal is directed against the order dt. 5-10-1976 by Sri R. K. Gupta Sessions Judge Etah in Sessions trial No. 497 of 1975
2. Appellant Brij Rai Singh was convicted under Section 302 of the Penal Code co-accused Phool Singh who is dead now and whose appeal abates was convicted under Section 302, I.P.C. read with Section 34 I. P. C: each appellant was sentenced to Imprisonment for Life.
3. Prosecution story briefly stated is that appellant Brij Raj Singh and deceased Sri Chand were co-villegers residents of village Bhadwas police station Nidholikalan district Etah. An election for the office of Pradhan took place in this village and appellant Brii Raj Singh was opposed by Jodh Singh. Ram Swarup P. W. 5, own brother of Sri chand supported Jodh Singh which was unpalatable to Brij Rai Singh.
4. It was about four months prior to occurrence that Brii Rai Singh and his associate Phool Singh attacked Ram Swarup and Srichand a report about that incident was lodged at police station and the appellants were sent up to stand their trial which was pending at time of occurrence.
5. Both the appellants be laboured son of Ram Swarup and in that connection another report was lodged.
6. One Turram Singh was murdered and appellant Brij Raj Singh was an accused in that murder case Srichand deceased was a prosecution witness in that case against Brij Rai Singh.
7. Village Bhadwas lies towards north of G. T. road running in between Sikandrarao, districts-Aligarh and Etah. Bus-stand of Bhadwas lies at a distance of 2.1/2 furlongs from village Bhadwas which is at a distance of about 11 miles from Etah city towards west. There is a hotel across the road towards south which was closed at time of occurrence; flour machine is situated towards east of the said hotel which is in front of the trivium where the occurrence took place. On that fateful morning Srichand wanted to go to Etah by bus and so reached the road at about 10.45 a. m. when he found both the appellants alighting from bus which came from Etah side and was running for Aligarh.
8. Appellant Brij Rai Singh carried a single barrel gun with him; in view of deep seated enmity amongst the parties Srichand in utter dismay retraced his steps and reached the trivium where dusty road of his village met the G. T. Road. Meanwhile Ram Swaroop P. W. 5, his brother happened to arrive at that place on a cycle as he had also to go to Etah. Srichand disclosed to Ramswarup about the arrival of both the appellants. There was slight drizzle at time of occurrence. Ramswarup placed his cycle near the flour machine, across the road and reached near the place where his brother was standing. When the appellants approached the victim, informant Ram Swarup was at a distance of about 2 or 4 steps only from his brother. Appellant retorted Srichand with the utterance 'Lala-Ram Ram' Phool Singh exhorted Brii Rai Singh to shoot forthwith. In an attempt to save his life Srichand wanted to turn towards north. But Brii Rai Singh fired at Srichand who fell injured on the spot witnesses Mahendra Singh. Prempal Singh Chokhey and Suresh witnessed the occurrence. Both the assailants decamped. Jagdish. son of victim also arrived. Ram Swarup and Jagdish etc. carried the injured in a bus for medical aid to district hospital. Etah where he was examined by Dr. R.' P. Yadav. P. W. 12 at 12. 30 P. m. Report is as below:-
(1) Lacerated wound 22 c. m. x 1 c. m. to 5 c. m. x muscle to neck cavity and chest cavity deep. The wound was from of right shoulder to inner 1/3 part of left collar bone from right shoulder to 1/3 part of left collar bone The wound was muscle deep and over front and sides of neck and upper part of chest. The wound was neck to chest cavity deep. Both the collar bones were fractured and the bone fragments of left collar bone were lying embedded in the tissues. Tattooing was present over the margins of the wound Surgical emphyseema was present over the part of chest and the chest wall was flapping with respiration. Air was coming out of the wound on the front neck. The injury was kept under observation. X-ray of the chest and neck was advised. The direction of the wound was from right to left.
(2) Two wounds of exit 1.1/2 c. m. x 3/4 c m. x 1.3/4 x 1 cm. on the left side of injury No. 1 and very close to it. Margins were everted.
(3) Firearm wound of exit 3/4 c. m. X 1/2 c m, over left axilla. The injuries had been caused by a firearm. Injury No. 1 was grievous. These injuries were fresh and were bleeding. The general condition was not satisfactory. Pulse was 120 per minute, regular and feeble. Blood pressure was 100. The patient was quite conscious. Respiration was 40 per minute shallow and irregular and laboured.' Vide injury report Ext. Ka 19 proved by doctor.
9. As the condition of victim was critical so he sent for Magistrate through letter Ext, Ka 20.
10. Sri S. K. Gupta, P. W. 4 Executive Magistrate arrived at the hospital and found declarant fit to make dying declaration; his condition was certified as quite fit to make statement by Dr. R. P. Yadav P. W. 12 vide Ext. Ka 6. The declarant made declaration in a narrative form at 2.30 p. m. which was recorded in his own words and reads as below;-
today at 11 or 11.30 A. M. I was coming to Etah from village. Brij Raj Singh son of Dhan Raj Singh of Bhadwas alighted from the bus at Bhadwas he came from Etach via bus at his sight I slightly moved towards hotel; he proceeded towards Dharamshala there was slight drizzle when it ceased raining I reached on the road and stood there; thereafter my own brother Ram Swar-oop reached there on a cycle. Brii Ra.i and phool Singh approached me. At their sight I slightly receded, they reached in front and told 'Lala Ram Ram' and fired a shot at me the shot was' fired by Brii Rai Singh with a gun; I fell down. Brii Rai Singh ran away from there; only Brii Rai Singh had fired the shot; I have ill will with Brij Rai Singh; two or three cases are pending.
Vide Ext. Ka 7 proved by Sri S. K. Gupta Magistrate, P. W. 4; victim Srichand was escorted to Agra at 3.30 p. m. by his son Jagdish; Ram Swarup scribed a report Ext. Ka 8 and made it over at police station Kotwali Etah the case under Section 307. I.P.C. was registered vide Ext. Ka 12 against the appellants on the basis of this written report Ext. Ka 8 by clerk constable Aim Singh. P. W. 9 vide check report Ext. Ka 11 recorded at 4 p. m.
11. X-Ray examination of Srichand was conducted by Radiologist Dr. R. D. Sharma. P. W. 2, vide X-Ray plates Exts 2 and 3. He prepared X-ray report Ex. Ka 4 on 4-8-1975 about chest and abdomen of Srichand. It reads 'fracture Of clavicle bone of the left side with surgical emphysema. There is a radio opaque shadows (metallic)-density shallow lying in the axillary region on the left side.'
12. All attempts made in the emergency ward to save life of Srichand failed and he succumbed to his injuries on 6-8-1975 at 5.30 a. m. as testified by Dr. Sri Hari Pratap Gautam. P. W. 1.
13. Autopsy was held by Dr. A. M. Sukhiany on 6-8-1975 at 4.40 P. m. age of deceased was found about 50 years and following injuries were detected vide post-mortem report Ext. Ka 5 proved by doctor.
1. Punctured wound 2/10' x 1/10' x thoracic cavity deep on probing on the medial, side of upper part of left upper arm just near the axillary fold. The margins of the wound were ecchymosed and inverted The direction of the wound was transverse from left to right.
2. Punctured wound 1/2' x 4/10' x thoracic cavity deep on the upper part of right arm just medial to midline The margins were ecchymosed, lacerated and irregular. Direction of the wound was transverse from right to left.
3. Surgical stitched wound 17' long placed transversely with 32 thread stitches on the front and upper part of chest extending from anterior axillary fold of right side to mid axillary line of left side. On opening the wound, it was found that it was thoracic cavity deep and the underlying bones were fractured and missing.
4. Surgical stitched wound 6' long placed obliquely on the left side of chest front aspect 3' laterally to left nipple with eight stitches of thread. On opening the stitches the wound was thoracic cavity deep and 5th. 6th and 7th ribs were found broken and parts were missing.
5. Surgically incised wound 3/4' x 3/10' x thoracic cavity deep on the left side of chest lateral aspect and front part.
6. Surgically incised wound 3/4 x 3/10' x thoracic cavity deep on the right side chest lateral aspect and lower part.
14. On internal examination, the doctor found both the sides of the pleura lacerated and the cavity contained about four ounces of blood. The right lung was ruptured and lacerated on the upper lobe through and through. The left lung, was also ruptured and lacerated on the upper lobe through and through. The upper part of the pericardium was lacerated. The stomach was empty. Death was due to shock and haemorrhage as a result of the injuries.'
15. On information about the death of victim the case was amended to Section 302 I.P.C. by Sri Mewa Ram. clerk constable, P. W. 8 posted at police station Nidholi Kalan where the papers had already been received from police station kotwali Etah Mahendra Prasad Sharma, p. W. 11, Sub-inspector started investigation and found both the appellants absconding; they surrendered in court when process to compel their attendance was started against them; on completion of investigation, charge sheet Ext. Ka 18 was submitted against the appellants on 26-9-1975.
16. In order to prove their case prosecution examined 12 witnesses. None was examined in defiance.
17. Four documents Exts. Kha 1 to Kha 4 were filed by appellants to show their ill-will with the witness.
18. Both the appellants denied their participation in the occurrence; they also denied their association with each other it was conceded that Srichand was cited as a witness against Brii Rai Singh in the case in which he was prosecuted for the murder of Turram Singh but he did not testify in that case which ended in acquittal earlier. It was further stated that the reports were lodged against the appellants by Ram Swarup in connection with the beating incident however those reports were alleged as false;-
19. Prosecution evidence fell under two categories viz. (1) ocular testimony consisting of statements of Ram Swarup P. W. 5 Prempal P. W. 6 and Mahendra Pal Singh, p. W. 7 and (No. 2) dying declaration Ext. Ka 7 recorded by magistrate.
20. Learned trial Judge did not Pin faith on testimony of p. Ws. Prempal and Mahendra but he relied upon the statement of Ram Swaroop P. W. 5, and dying declaration Ext. Ka 7 and recorded conviction and sentences aforesaid.
21. We have heard learned Counsel for the parties and perused the record.
22. Learned advocates for the appellants attacked testimony of Ram Swarup P. W. 5, on the ground that he was a chance witness; he had no reason to have been present at the scene of occurrence. He had ill-will with the appellants he conceded in cross examination his presence on the spot as fortuitous. Had he been present on the spot he could mot have been spared by Brij Rai Singh who had a greater cause to have fired at him than at Srichand.
23. We have carefully considered all these contentions but see no good reason to strike a discordant note so far as appraisal of his testimony by learned trial judge is concerned. Learned trial judge had an occasion to observe the demean-our of this witness. He further observed that the witness was present by the side of his brother when the fatal shot was fired. Having fired the fatal shot the assailants decamped. Informant might not have been within the shooting range.
24. This reasoning of learned trial judge cannot be regarded as perverse. It is not for us to speculate as to what was passing in the minds of assailants at the time of shooting. The occurrence took place on the road near village Bhadwas it was testified by Ram Swaroop that the assailants had more ill-will with his elder brother than himself; he further testified that he lived separate from his brother; he did not know about the time when his brother started from the village on that day. He started on his cycle from the village and reached the culvert where he met his brother. This statement of the witness finds a material corroboration from the dying declaration Ext. Ka 7 which mentions that Ram Swaroop, brother of declarant also reached there subsequently on the cycle. It is further significant to note that although the names of other eyewitnesses were not disclosed in the declaration Ext. Ka 7 yet name of Ram Swarup occurs there. Had declarant chosen to be dishonest he could have easily named Jagdish his own son to have been present at the time of fatal assault. The declarant must have known that he was escorted throughout, subsequent to fatal assault on him by Jag-dish whose presence was even noted by Dr. R. P, Yadav in injury report. In these circumstances omission of name of Jagdish and mention of name of Ram Swaroop is a pointer to the presence of Ram Swaroop on the scene of occurrence. Learned trial Judge discarded the testimony of Mahendra and Prempal on the ground that they were interested witnesses and were not cited by the victim as witnesses of occurrence in the dying declaration. This reasoning of learned trial Judge seems correct and presence of Ram Swaroop on the spot throughout the occurrence seems consistent and reliable specially when Ram Swaroop remained unshaken in cross examination so far as the author of the fatal injury of the victim was concerned. He was cross-examined at length and testified about the time, place and manner of occurrence as laid above. He further testified that Brij Rai Singh fired fatal shot at the victim from a close range. Both the assailants left the spot double riding the cycle towards Etah his brother fell down Suresh, owner of flour machine Mahendra Prempal and Chhokey witnessed the occurrence. He further testified about the winning over of Suresh and Chokey by the appellants.
25. His testimony seems quite natural and probable and consistent with the medical evidence and circumstances of the case.
26. Dying declaration Ext. Ka 7 was attacked on several grounds. It was argued that this dying declaration was inconsistent with the medical evidence. It mentioned about one shot only. Dr. R. P. Yadav. in his injury report, Ex. Ka 19 mentioned about a single wound of entry direction of which was from right to left Dr. A. M. Sukhiany P. W. 3, who held autopsy mentioned about two wounds of entry direction of wound No. 1 was from right to left while direction of injury No. 2 was from left. to right; margins of this injury were lacerated and irregular and so he described it as a punctured wound and not as wound of exit as testified by Dr. R. P. Yadav P. W. 12.
27. So the argument developed was that the victim must have sustained two entry wounds which could have been caused by two separate shots and not the single shot as mentioned in dying declaration. So the declarant erred about the number of fires and it falsified the declaration.
28. We do not subscribe to this view. It appears that this argument was not even raised before the learned trial Judge. Dr. A. M. Sukhiany, P. W. 3, was confused about the margins of injury No. 2 and conceded in cross-examination that he was not sure about this wound being wound of exit or wound of entry. It was not suggested to the doctor in cross-examination that the deceased could have sustained two entry wounds by two fires. Dr. R. P. Yadav P. W. 12 who was examined subsequent to Dr. A. M. Sukhiany made a categorical statement on the point that wound No. 2 was wound of exit and not of entry. No cross-examination was directed to show that wound No. 2 had inverted margins or could be wound of entry also. None of these doctors were cross-examined by suggesting that injuries Nos. 1 and 2 of victim were gunshot wounds of entry. We have carefully perused the number and nature of injuries and find that the deceased had one gun shot wound of entry and injury No. 2 was simply an exit wound and the margins of this wound were everted and not inverted. So we do not find any conflict in the version laid in the dying declaration and medical evidence.
29. The next contention was that the dying declaration was the result of prompting and tutoring letter Ext. Ka 20 sent by Dr. R. p. Yadav. to District Magistrate disclosed that a mob had collected there Dr. R. p. Yadav also conceded that Sri Shambhy Saran Vakil was also in that crowd; the crowd was irritant informant Ram Swaroop who accompanied his brother in' the hospital had every opportunity to have tutored the victim to incriminate the appellants in this crime.
30. This contention is not weighty. Dr. R. P. Yadav did not concede that any person was present near the declarant when he made the dying declara-tion He also did not concede that any person had an opportunity to prompt the declarant before his dying declaration was recorded; Sri S. K. Gupta. P. W. 4. who recorded the declaration testified that there was none near the declarant when this declaration was recorded except Dr. R. P. Yadav. It was not the result of any prompting or tutoring. Under these circumstances we find that learned trial Judge correctly held that this declaration was not the result of any prompting or tutoring although the mob outside could have been irritant at the late arrival of the Magistrate specially when the condition of the declarant was precarious.
31. Learned advocates for the appellants again pointed out that the magistrate did not question the declarant about his mental state. Declarant was not in a position to make any statement. The statement was not recorded in the form of question and answer and as such the declaration was unreliable. In this connection reliance was placed upon Balak Ram v. State of U.P. reported in : 1974CriLJ1486 in which it was held that second dying declaration recorded by investigating officer was unreliable as it was not drawn in accordance with Rule 115 of U.P. Police Regulations which expressly enjoins the investigating officer to record the dying declaration in presence of two respectable witnesses and after obtaining signature of declarant at the foot of the declaration in that case the investigator did not take the necessary precautions to obtain the signatures of declarant or attesting witnesses at the foot of the declaration. It was further observed that the dying declaration was recorded by the Investigating Officer who was interested in the fruition of his efforts, the declarant was in the midst of friends and admirers right since the time of incident until dying declaration was recorded and so evidentiary value was not attached to it.
32. In the instant case dying declaration Ext. Ka-7 was not recorded by the investigator but the Executive Magistrate, Etah, Sri S. K. Gupta, P. W. 4. has vouched about Us genuineness. Dr. S. K. Gupta had nothing to do with the investigation of the case and was a person in authority and the declaration recorded by him cannot be lightly discarded unless it is shown that it was the result of tutoring, etc. We have observed above that Dr. R. P. Yadav. P. W. 12 and Sri S. K. Gupta. P. W. 4 testified on oath that none was near the declarant at the time when he made the declaration in his own words; when declarant was speaking there was hardly any duty on the part of magistrate to ask him as to whether he could speak or not, vocal organs of the declarant were not damaged and even at the end of his cross-examination Dr. R. P. Yadav P. W. 12. testified that the declarant was quite fit to speak and actually spoke before them when the declaration was recorded. After this definite statement made by the doctor which was believed by learned trial Judge we do not find any good reason to discard the declaration Ext. Ka 7 simply because the Magistrate did not put the specific question to the declarant about the fitness of declarant to make the declaration.
33. Learned advocates for the appellants relied upon K. Rama Chandra v. Public Prosecutor reported in : 1976CriLJ1548 which posited:-
Having regard to the surrounding circumstances, it would be extremely unsafe to place any reliance on the dying declaration and to find the conviction of the appellants on its basis particularly in view of the conduct of the de-ceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants and in view of the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was not able to speak normally.
34. It appears that in that case the declaration was made by the deceased in presence of P. W. 5 who happened to be present even when the dying declaration was being recorded; it was also established in that case that although the deceased was conscious at the place of occurrence at the time when he was put on the lorry also at the time when he was brought to the nursing home and was in a position to speak, he did not disclose the names of the appellants to anybody such conduct of the deceased in not nominating his assailants earlier despite his consciousness militated against his nomination of his assailants at a subsequent stage. It was under such circumstances that the dying declaraticon was disbelieved. It is not the law that if the dying declaration is not recorded in the form of questions and answers by the magistrate it should be discarded straightway. Section 32. Sub-clause (1) of the Evidence Act does not lay down any procedure for recording the dying declaration.
35. In Khushal Rao v. State of Bombay reported in : 1958CriLJ106 it was observed;
In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence but from the fact that particular dying declaration was not free from the infirmities.
36. In the instant case we find that Ext. Ka 7 when checked in the light of touchstone laid in the said authority holds water. The occurrence took place in broad daylight, the victim had every opportunity to have observed his assailants from close quarters; it could not have been a case of mistaken identity the attack was opened by Brij Rai Singh with the utterance 'Lala Ram Ram' the victim did not lose consciousness nor his power of speech or memory was impaired while making the dying declaration the mere fact that his son escorted him to hospital could not justify the inference that his son or brother could have tutored him. It is not the law that when any person sustains a fatal injury then his relatives must not reach him to the hospital for quick medical aid but must leave him on the spot un-cared for. There is nothing on record to show that Ext. Ka 7 was the result of any prompting or tutoring or was not voluntary and true; after taking all necessary precautions this dying declaration had been recorded by the Magistrate on duty in the words of declarant himself; the declarant made this declaration at the earliest opportunity even before the birth of this case and it finds a material corroboration from a prompt F.I.R. medical evidence and circumstances of the case. The appellants had a motive to launch the fatal assault; they also absconded after the occurrence. The declaration which was recorded by the Magistrate in the words of declarant himself is fully consistent with the oral and medical evidence and circumstances of the case as laid above. It was rightly held by learned trial Judge as voluntary and true and alone was sufficient to sustain the conviction of appellant Brij Rai Singh. So we find the aforesaid declaration as voluntary, true and reliable.
37. In the result appeal of phool Singh appellant abates on account of His death pending appeal. Appeal of Brij Raj Singh fails and his conviction and sentence aforesaid are affirmed.
38. Appeallant Brij Rai Singh is on bail. Let him surrender forthwith to his bail bonds and taken into custody to serve out the aforesaid sentence. The impugned order is modified accordingly.