K.C. Agarwal, J.
1. This appeal has been preferred by Pritam Singh and Bharat Singh against the judgment of the Sessions Judge, Etawah, convicting them by the judgment and order dated 29-1-1977 in S. T. No. A-244 of 1976, State v. Pritam Singh and others. The Appellant Pritam Singh has been convicted under Section 148, I.P.C. and Section 302, I.P.C. He has been sentenced to Rule 1. for two years under Section 148, I.P.C. and imprisonment for life under Section 302, I. P.C. Bharat Singh appellant has been convicted under Section 147, I.P.C. and is sentenced to one year's R.I. The sentences of Pritam Singh were directed to run concurrently.
2. In brief, the prosecution case was. that Ratan deceased was in fact at the liquor shop in Mohalla Garhipura, Etawah. Along with Ratan, there were a number of persons employed at the said shop including Hira Lal (P.W. 1), Radhey Shyam (P.W. 2) and Mazboot Singh (P.W. 3).
3. It was alleged that on 4th May, 1976, at about 10 p.m., Pritam Singh went to the liquor shop to purchase liquor but he was informed that it was time to close the shop and no liquor could be sold at that time. The other accused behind him were Bharat Singh, Sukhai, Cyan Singh, Ramesh Babuand Ramu. On being refused liquor, those persons behind Pritam remarked that in case they wanted the shop to continue in the locality aforesaid, the liquor had to be supplied to them. These persons had entered the shop from its northern door. Hira Lal (P.W. 1) and Mazboot Singh (P.W. 3) closed the said door. Thereafter, Pritam Singh proceeded to the eastern door. The servants working at the shop wanted to close it also. By the time, the eastern door could be closed, the accused arrived there. Ratan was in front of all these servants. Pritam Singh then took out the country made pistol and fired at Ratan from a distance of two cubic feet. Ratan fell down and the accused ran away.
4. Hira Lal wrote out report of the occurrence and then after taking the rickshaw in which Ratan was seated, these persons went to the Kotwali which was situated very near to the place of occurrence. The written report was lodged at 10.55 p.m. Ratan was taken to the Sadar hospital where he was admitted the same night. Finding his condition to be serious, he was shifted to S.N. Hospital, Agra where he succumbed to his injuries at 10.20A.M.
5. Netrapal Singh S. I. (P.W. 8) started investigation and after completing the same, submitted a charge-sheet against the six accused persons, namely, Pritam Singh, Bharat Singh, Sukhai, Cyan Singh, Ramesh Babu and Ramu.
6. All the accused pleaded not guilty. According to them, the witnesses deposed against Pritam Singh on account of his enmity with one Ram Swar up who was a resident of the same locality.
7. From the side of the prosecution, Hira Lal (P.W.1). Radhey Shyam (P.W. 2), Mazboot Singh (P.W. 3), Indram Pandey (P.W. 4), Dr. N.K. Saxena (P.W. 5), Dr. G.D. Dubey (P.W. 6) and Sri Shambhoo Nath (P.W. 7) were produced. Netrapal Singh (P.W. 8) who was the Investigating Officer was also examined. Out of the witnesses mentioned above, the eye-witnesses were Hira Lal (P.W. 1), Radhey Shyam (P.W. 2) and Mazboot Singh (P.W. 3). Dr. N. K. Saxena conducted the post-mortem on the dead body of Ratan deceased. The deceased was 25 years of age. He found the following ante mortem injuries on his body :
1. Gunshot wound of entry 4/10' X 4/10' X chest cavity deep on the left side front of the chest 4' below and at 5 O'Clock position from the left nipple. Margins inverted and ecchymosed. Scorching tatooing and blackening not present. Direction backwards, downwards and towards the right side. Shot after causing injury No. 1 caused through and through rupture of the left pleura at the anterior aspect of left lower lobe and at the base then caused through and through perforation of the left dome of the diaphagram, then caused rupture of transverse colon at its posterior inferior surface near spleenic flexor, then caused through and through rupture of the tail of the pancrease, then produced perforation of the root of mesenterynear its attachment and found embedded in the retro peritonial tissue of the abdomen cavity.
2. Scabbed abrasion 2' X 1/10' on the outer aspect of left upper part.
8. On internal examination, the right side of heart was found to contain clotted blood and both lungs were pale. According to the doctor, injuries were sufficient to cause death in the ordinary course of nature.
9. Dr. G.D. Dubey (P.W. 6) was the Medical Officer, Children Hospital, Etawah on 4th May, 1976. He examined Ratan deceased at about 11.30 p.m. on 4-5- 76. Being of the opinion that the condition of Ratan was serious, he sent message to Shambhu Nath Bajpayee (P.W. 7), the Magistrate for coming to the hospital for the purpose of recording the dying declaration of Ratan. Shambhu Nath Bajpayee reached the hospital at 1.15 a.m. and recorded the dying dec la ration at 1.30 a.m. In the dying declaration, the deceased Ratan stated that he was an employee of the liquor shop of Mohalla Garhipura and that on 4th May, 1976 at about 10 p.m. he was in the shop along with Radhey Shyam and one or two others. At that hour, five or six persons entered the shop out of whom he recognized Bharat Singh and Pritam Singh. These two persons asked for liquor but refused to pay its price. He stated that on payment of price being not made he refused to give liquor. Thereafter, Pritam Singh shot him with the revolver in the left side of his chest.
10. P.W. 1 Hira Lal supported the prosecution story detailed above and proved the first information report (Ex. Ka 1). The oral evidence of P.W. 3 Mazboot Singh was also to the effect that Pritam Singh had fired the shot at Ratan. Relying on the testimony of these two witnesses as well as the dying declaration recorded by S.N. Bajpayee (P.W. 7). the learned Sessions Judge convicted the appellants Pritam Singh and Bharat Singh for the various offences mentioned above. He, however, found that all the four accused had since not committed any offence, they could not be convicted of the charge under Section 302, I.P.C. read with Section 149, I.P.C. His view was that the remaining four persons had no knowledge that Pritam Singh possessed a Tamancha. Accordingly, he acquitted them on the evidence led by the prosecution. He, however, held that the prosecution hadproved the charges under Sections 148 and 302, P.C. against accused Pritam Singh and convicted him for the various terms of imprisonment, stated above. He also found that Bharat Singh since had been named in the dying declaration, he was liable to be convicted under Section 147, I.P.C. Being aggrieved, this appeal has been preferred by the two appellants.
11. The learned Sessions Judge, as stated above, relied on the testimony of Hira Lal (P.W.1), and Majboot Singh (P.W. 3) and held that the charges against the appellants had been established. The learned Sessions Judge further found that the appellants were liable to be convicted on the basis of the dying declaration made by the deceased on the 5th May, 1976. Before we deal with the statements of the prosecution witnesses, we may consider the question of the legality of conviction of the appellants on the basis of the dying declaration.
12. The dying declaration had been recorded by Shambhu Nath (P.W. 7) at 1.30 a.m. The dying decla ration was made by the deceased when he was in a fit state of mind. Dr. G.D. Dubey (P.W. 6) stated that he had examined the deceased Ratan and found him to be in a fit state of mind. He did not suffer from any state of shock and was able to make his statement. The fact that Dr. G.D. Dubey had examined the deceased Ratan in the Children hospital, Etawah is established from the medical report given by him. Shambhu Nath (P.W. 7), the Sub-divisional Magistrate, Etawah has proved the dying declaration (Ex. Ka 6). According to him, before recording the statement, he had satisfied himself that he was in a fit condition to make the statement. Dr. G.D. Dubey was also present at the time of making the dying declaration and he proved his certificate (Ex. Ka 6-A). S.N. Bajapyee (P.W. 7) stated that the deceased Ratan was all alone in the room when the dying declaration was recorded.
13. The dying declaration is brief, coherent and consistent. After perusal of the dying declaration and considering the evidence of the two witnesses Dr. G.D. Dubey (P.W. 6) and S.N. Bajpayee (P.W. 7), we are satisfied that the dying declaration was true and free from any effort to prompt the deceased to make the statement. In this dying declaration, the deceased Ratan has not implicated the four accused persons who had been acquitted by the learned Sessions Judge. His statement was that Pritam Singh had shot him with the Tamancha which he had in his possession. In fact, even about Bharat Singh, no effort to implicate him by the deceased was made. The fact that he did not make any allegation against Bharat Singh goes a long way to show his truthfulness.
14. The law with regard to dying declaration is very clear. It has to be scrutinized very closely as to its truthfulness like any other important piece of evidence in the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that a person dying is normally not likely to implicate innocent person falsely. A person dying would not die with a lie on his lips. The principles oh which this species of evidence is admitted is that they are the declaration made in extremity when the party is at the point of death and when every hope of this world is gone.
15. In a number of decisions, the Supreme Court has held that if the statement of a dying person passes the test of careful scrutiny applied by the Court, it become more reliable piece of evidence which does not require any corroboration. See Khushal Rao v. State of Bombay : 1958CriLJ106 and Kusa v. State of Orissa : 1980CriLJ408 . From these decisions, it is established that if the deceased was fully conscious and was not suffering from any confusion or hallucination, the statement made by him would not require corroboration and can be acted upon. The two things which a Court must take care of for examining the dying declaration are that it is not the result of coaching, tutoring or prompting of somebody and that the deceased was in a fit state of mind to make the statement and is making the same without any rancour. In the instant case, the two requirements have been fully established. As stated above, the deceased had no enmity with Pritam Singh and, therefore, the statement made by him can be safely acted upon without having been corroborated. The deceased was under a settled hopeless expectation of death. Exclusion of the dying declaration would defeat the ends of justice. We are in agreement with the view of the learned Sessions Judge and hold that the dying declaration in the instant case was admissible without corroboration and that the same establishes the guilt of Pritam Singh for having killed Ratan. Section 32(1) of the Evidence Act says 'when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the 14 cause of that person's death comes into question, such a statement written or verbal, made by a person who is dead (omitting the unnecessary words) is itself a relevant fact.'
16. This rule has been enacted in Sub-section (1) of Section 32 as said by the Supreme Court in Khushal Rao v. State of Bombay (supra) as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. The idea behind is that at such a moment when a person making his statement is in danger of losing his life, he could not be expected to tell lies. On the evidence of Dr. G.D. Dubey (P.W. 6) and after considering the injuries, we are of opinion that the deceased Ratan was on the verge of death. That was the best guarantee of the truth of the statement made by him.
17. The main emphasis of the learned Counsel for the appellants for not accepting the dying declaration was that as it did not tally and was not in consonance with the statements of the eye-witnesses, the dying declaration was untrue and incapable of being relied upon and acted upon. We find no merit in this submission. The eye-witnesses Hira Lal (P.W. 1) and Mazboot Singh (P.W. 3) has deposed that the fire was shot by Pritam. This part of their statements is in conformity with the dying declaration. Therefore, there is no substance in the assertion that the dying declaration was untrue. Moreover, the truthfulness of a dying declaration has to be tested with reference to the circumstances and other relevant facts. It should not be rejected as unreliable on the ground of not being in conformity with the oral testimony of the witnesses. Some time the witnesses have a tendency of exaggerating a fact. Therefore, it would be improper and illegal to reject the dying declaration on the basis of the dying declaration not being in complete harmony and consonance with the oral statements.
18. The learned Counsel for the appellants stated that as the parentage of Pritam Singh has not been given in the dying declaration, the same could not be relied upon for convicting the accused appellant No. 1, Pritam Singh. His submission was that in the absence of parentage, it was difficult to say that the dying declaration was about appellant No. 1, Pritam Singh. The submission made has no substance. P. Ws. 1 to 3, Hira Lal, Radhey Shyam and Mazboot Singh, have stated consistently about the complicity of Pritam Singh in the case. Hira Lal (P.W. 1) stated that the accused appellant had fired the shot at the deceased. To the same effect is the statement of P.W. 3 Mazboot Singh. In view of the statements of these persons, no doubt is left that shot was fired by Pritam Singh. From the injuries of the deceased which were as follows, it appears that they were caused from a very close range.
Rounded gun shot wound of entrance with lacerated and inverted margin size 11/2 cm X 11/2 cm depth, could net be ascertained as probing is not advisable, situated on left side of chest, 9 cm below left nipple. Blackening, scorching and tatooing present around the wound.
19. The deceased Ratan had clearly seen him and there is no substance in the submission that he could not recognize him. It has come in the statements of Radhey Shyam (P.W. 2) and Mazboot Singh (P.W. 3) that Pritam Singh appellant was not only a resident of the same locality where the liquor shop is situated but also was its visitor. Radhey Shyam and Mazboot Singh knew Pritam Singh from before. These two witnesses as well as P.W. I Hira Lal stated that a bulb was burning in the shop whereas another in the Barotna adjoining to the shop. In the Gali also, according to these witnesses, there was light of bulb. Hence, there was sufficient light for the deceased Ratan to recognize Pritam Singh.
20. Casting doubt on the truthfulness of the dying declaration, the learned Counsel for the appellants relied on the statement of P.W. 3 Mazboot Singh wherein he stated that the copy of the FIR which had been brought by Hira Lal (P.W. 1) was read over to the deceased Ratan. On the basis of this statement, the learned Counsel urged that Ratan deceased has since been, tutored and had been asked to tell the names of the persons stated in the FIR, no sanctity could be attached to the dying declaration. This part of the statement has not been corroborated by P.W. 1 Hira Lal. It was Hira Lal (P.W. 1) admittedly who had lodged the same and had brought to the hospital. Hira Lal stated in unequivocal terms that he remained outside the room where the deceased Ratan had been hospitalised and he did not read the same to the deceased. P.W. 2 Radhey Shyam also does not support Mazboot Singh (P.W. 3) on the point of reading of the FIR by Hira Lal to deceased Ratan. After considering the statements of these witnesses, we are of opinion that P.W. 3 Mazboot Singh did not recollect the fact of ' reading over the FIR to deceased Ratan. This part of his statement is not trustworthy and reliable. Ratan deceased was under great pain and anguish. He could not be interested in what had been written in the FIR about the incident when as a matter of fact he was victim of the occurrence. Neither he could be anxious to know about the FIR nor could Hira Lal had a desire to tell the same to the deceased. In the state of health in which the deceased Ratan was he could legitimately had no concern with the contents of the FIR. Moreover, the FIR had named all the six persons who were tried in the Sessions Court about the murder of deceased Ratan but in bis dying declaration the deceased took the name of only Pritam Singh and Bharat Singh. This would show that the deceased was uninfluenced and not affected by the FIR even if it was held that it was read over to him.
21. The next argument of the learned Counsel for the appellants was that Pritam Singh had been named in the FIR on account of enmity which he had with Ram Swarup. Ram Swarup was a resident of a bouse situated in the neighbourhood of the liquor shop. Hira Lal (P.W 1) was a tenant of a portion of this house which he had occupied 5 or 6 days before the occurrence. The learned Counsel submitted that Hira Lal had been asked by Ram Swarup to mention the name of Pritam Singh in the FIR and it is on that account that Pritam Singh was figured in the same. We are not satisfied with this argument.
From the evidence on record, it appears that Ram Swarup had lodged a report under Section 429 against Pritam Singh. Pritam Singh had also been prosecuted for the same but was. subsequently acquitted. The dispute between the two was of a trivial nature and Ram Swarup in these circumstances could not be held interested in involving Pritam Singh in the murder case. Further more Hira Lal admittedly had no enmity with Pritam. Even if Ram Swarup had some enmity with Pritam Singh that could not impel Hira Lal to falsely implicate Pritam Singh.
22. That apart, the deceased Ratan had, admittedly, no enmity with Pritam Singh. It has come in evidence of Radhey Shyam (P.W. 2) and Mazboot Singh (P.W. 3) that Ram Swarup was not even present in the hospital. Ratan did not name Pritam Singh on account of any enmity of the accused Pritam Singh with Ram Swarup. The dying declaration was untainted.
23. Although we have held that if the statement of a dying person passes a careful scrutiny, it did not require any corroboration, we have examined the statements of the eye-witnesses Hira Lal (P.W. 1) and Mazboot Singh (P.W. 3). These two witnesses are reliable and had an occasion to see the occurrence. They stated that Pritam Singh had shot the deceased. Nothing could be elicited in the cross-examination to shake the testimony of these witnesses. They were independent witnesses. Their statements fully prove the , case of the prosecution that Ratan had been murdered by the shot fired by Pritem Singh.
24. Now comes the question of Bharat Singh's conviction and sentence. Bharat Singh had not been assigned any role by Ratan in his dying declaration nor was anything said by P. Ws 1, 2 and 3 in their statements. The evidence at the most establishes that he was also in the shop at the time when the country made pistol was shot at by Pritam Singh. But mere presence in the shop for the purpose of purchasing liquor was not an offence fan which he could be convicted. The learned Sessions Judge since had acquitted, the four accused, he could not be considered to be a member of any unlawful assembly inasmuch as after excluding four persons only two persons remained i.e. Bha rat Singh and Pritam Singh. His conviction, therefore, under Section 147, I.P.C. by the Sessions Judge was illegal. The essential question for a case under Section 147, I.P.C. is whether there was an unlawful assembly, as defined in Section 141, of five or more persons. There being no unlawful assembly, his conviction was unjustified.
25. Pritam Singh had also been incorrectly convicted by the Sessions Judge for the offence under Section 148, I.P.C. Section 148, I.P.C. applies only to a case if one member of the unlawful assembly is armed with a deadly weapon. Since there was no unlawful assembly, no question of applying Section 148 I.P.C. arises.
26. In the result, the appeal of Bharat Singh succeeds and is allowed. His conviction and sentence under Section 147, I.P.C. are set aside. He is on bail. He need not surrender. His bail bonds are discharged.
27. The appeal of Pritam Singh Partly succeeds and is allowed. His conviction and sentence under Section 148, I.P.C. are set aside but his appeal in other respect is dismissed. His conviction and sentence for the offence under Section 302, I.P.C. are upheld. He shall surrender forthwith to serve out his sentence.