N.C. Dwivedi, J.
1. In this appeal, the appellant Dayaramsingh has challenged his conviction under Section 302 of the I.P.C. for which he was sentenced to undergo imprisonment for life.
2. Along with the appellant, four other accused viz., Harisingh, Ajmersingh, Ramswaroop and Kaptansingh were also prosecuted under Sections 147 and 302/149 of the I.P.C. but they were acquitted of these offences. The appellant was also acquitted of these charges.
3. The prosecution case is this; On 5-2-1970, the appellant along with others, came to the deceased Khalaksingh where the appellant fired at him with a 12 bore gun. The firing was preceded by exchange of abuses between them. After receiving the gun shot injuries, the deceased walked few paces and fell down profusely bleeding. Villagers assembled there including Jhandusingh (P. W. 5) deceased's own brother, before whom Khalaksingh made an oral dying declaration naming the appellants as having shot at him, Jhandusingh (P. W. 5) went to the police station and lodged the F.I.R. Ex. P-3 at 5 p.m. the same day,
4. An inquest was held over the dead body of Khalaksingh as per inquest report Ex. p-1 dated 5-2-1970.
5. Dr. Kulshrestha (P. W. 11) performed the post-mortem examination on the dead body of Khalaksingh on 6-2-1970 and as per post-mortem report Ex. P-15, found as under:
There was a lacerated wound 12 cm. x 10 cm. x 8 cm. irregular in shape, over the left axilla and chest. Blood-clots were present. There was tattooing around the wounds and the muscles were lacerated, pleura was lacerated on the left side. Left lung was lacerated, 2nd and 3rd ribs were found fractured'. According to Dr. Kulshreshtha, Khalaksingh died due to the gun shot injury which was ante mortem in nature and was sufficient in the ordinary course of nature to cause death. According to him, death must have been instantaneous but there was possibility that the victim might have survived hardly a few minutes, i.e., for 2 or 3 minutes.
6. Regarding the opinion of Dr. Kulshreshtha, Shri Shukla, Civil Surgeon, Morena (C.W.I) was examined who, after going through the post mortem report, stated that the victim must have died instantaneously or may have survived for sometime after receiving the gunshot injury. He stated that the opinion given by Dr. Kulshreshtha could not be supported or endorsed to the extent of ruling out of probability of survival for some time.
7. As per seizure memo Ex. P. 4, blood stained 12 bore pellets were seized having been received from the hospital in a sealed condition. From the appellant, as per seizure memo Ex. p. 5, a 12 bore gun with 9 cartridges and licence, was seized as per seizure memo Ex. p. 5. The appellant was arrested on 28-2-1970, as per arrest memo Ex. p. 6. Blood stained earth was seized from the place of shooting as also from the place where the injured had fallen down, as per seizure memos Exhibits p.-12 and p-13.
8. As per Ballistic Expert's report Ex. p. 16, the gun seized from the appellant was not in perfect working condition, but it was capable of firing 12 bore cartridges.
9. The appellant abjured his guilt and pleaded false implication.
10. The point for decision in this appeal is whether the appellant shot dead Khalaksingh on 5-2-1970.
11. We have heard Shri J. P. Gupta, Advocate, for the appellant and Shri M. A. Shah, Dy. Government Advocate for the State. We are of the view that conviction of the appellant under Section 302 of the I.P.C. is well merited.
12. Before us, neither Shri Gupta nor Shri Shah, disputed that Khalaksingh is dead. His dead body was seen by number of prosecution witnesses including his own brother Jhandusingh (P. W. 5). An inquest was held over his dead body as per inquest report Ex. p. 1. Dr. Kul-shreshtha (PW 11) performed the autopsy on his dead body and opined that he died because of gun shot injuries. We thus find that Khalaksingh is dead and that his death was homicidal,
13. Before we discuss the prosecution evidence on merits, we would quote some adverse findings recorded by the Sessions Judge Morena, and thereafter we will consider if these drawbacks affect the reliability of the prosecution version. The adverse findings are as under:
(i) Head Constable Gotiram (P.W. 13) was not an honest and straightforward police official and cooked up the story of vigorous search and prompt recording of statement with a view to show the outstanding nature of his efforts. (Para 7)
(ii) Gotiram (P.W. 13) prepared the spot map which was very confusing about the direction, distance and relativity and his statement in Court introduced further deliberate confusions on this point in the case.
(iii) There was lot of confusion about the place of occurrence, the direction and the relative positions of various houses and places. (Para 11)
(iv) Material eye witnesses were not examined. The witnesses named in the F.I.R. Ex. p-3 as eye witnesses, were not examined before the committing magistrate and out of them only Jaswant-singh (P.W. 2) was examined before the Sessions Court. Child witnesses Shanti-bai, daughter of the deceased, and Dalsingh were not examined though summoned.
(v) Layaksingh (P. W, 4) is wholly unreliable.
(vi) Sultansingh (P.W. 3) is partly reliable witness.
(vii) The prosecution story does not disclose a baser or sordid motive for the murder. It does not appear to be pre-planned, nor could it be unusually brutal,
(viii). The other co-accused Harisingh Ajmersingh, Ramswaroop and Kaptansingh were given benefit of doubt and acquitted of all the charges framed against them.
14. With the above findings, Shri Gupta contended that the Sessions Judge having found the prosecution evidence false in regard to the four accused persons as also in regard to the other points, the remaining prosecution witnesses connecting the appellant with the shooting of Khalaksingh, should not be accepted. We are not inclined to agree with the approach. The maxim falsus in uno falsus in omnibus' is not a sound rule for the reasons that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In this connection reference may be made to the following cases:
Abdul Gani v. State of M. P. : AIR1954SC31 , Ugar Ahir v. State of Bihar : AIR1965SC277 and (Soharab v. State of M.P. : 1972CriLJ1302 .
In such a situation, a cautious scrutiny of the prosecution evidence appears to be necessary and the substratum of prosecution case or material part of the evidence has to be Judged to find out whether the disbelieving part of the prosecution version affects the reliability of the main plank of the prosecution version. If after scrutiny of the prosecution version, the remaining part can be believed, there will be no bar to its acceptance (Soma Bhai v. State of Gujarat). See : 1975CriLJ1201 .
15. It may also be mentioned before scrutinising the prosecution evidence that the relations between the appellant and the deceased were not cordial. Normally where there are two factions in a village, independent witnesses could not be expected to come forward to give evidence. The evidence of relation and partisan witnesses has to be scrutinised with caution, but the evidence of such witnesses does not deserve to be reject ed outright simply because they are relation or inimical witnesses. In this connection, reference may be made to the following cases:
(i) State of U.P. v. Iftikhar Khan : 1973CriLJ636 .
(ii) Nanhku Singh v. State of Bihar : 1972CriLJ1204
(iii) Barati v. State of U.P. : 1974CriLJ709
(iv) Badri v. State of U.P. : 1975CriLJ1739 and
(v) Gurdas Singh v. State of Rajasthan : 1975CriLJ1218 .
16. Sultansingh (P. W. 3) is the cousin of the deceased and in para 17 of the judgment has been described as a chance witness. Even then, in spite of contradictions from Exhibits D-4 and D-5, he was held to be a partly reliable witness. Regarding appreciation of evidence of chance witness, the following principles laid down in (Bahalsingh v. State of Harayana) : 1976CriLJ1568 have to be kept in view:
If by coincidence of chance a person happens to be at the place of occurrence at the time it is taken place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does not require cautious and close scrutiny.
With the above case law in view, we will proceed to examine the prosecution evidence.
17. We will begin with the scrutiny of the evidence of Jhandusingh (P.W. 5) who is the brother of the deceased. He stated that Raghuvirsingh (P.W. 9) came to his house and informed him that the appellant had shot dead Khalaksingh. He went there and questioned his brother as to who had shot him dead whereupon, Jhandnsingh (Khalaksingh?) told him that it was the appellant. In para 13, he denied the suggestion that he had found Khalaksingh lying dead in the jungle. On the point of oral dying declaration, we find no inconsistency in his evidence. He is corroborated in his testimony by the F.I.R. Ex. P-3 lodged within about 4 or 5 hours of the occurrence after covering a distance of 5 miles in which Jhandusingh has named Raghuvirsingh (P.W. 9) as his informant and also referred to the oral dying declaration made by the deceased. We find no reason to discard his evidence in regard to the information received by him from Raghuvirsingh as also in regard to the oral dying declaration made by the deceased.
18. Raghuvirsingh (P.W. 9) is named in the F. I. R. He stated that at noontime, he heard the shout that the appellant had shot dead Khalaksingh. He rushed to Jhandusingh (P. W. 5) and informed him that he had heard the cries about the appellant having shot dead Khalaksingh. Raghuvirsingh stated that Khalaksingh was not unconscious and declared the appellant to be his assailant. The evidence of Jhandusingh (P.W. 5) and Raghuvirsingh (P.W. 9) in regard to the oral dying declaration made by the deceased is consistent and suffers from no infirmity. We believe their statement that after receiving the gunshot injury, Khalaksingh was in a conscious state and made the dying declaration implicating the appellant.
19. We will now refer to the testimony of Jaswantsingh (P. W. 2) who is named in the F. I. R. Ex. P-3. He saw the quarrel between the appellant and the deceased under a Ber tree from a distance of 40-50 paces. Hearing the abuses, he proceeded towards the place of incident and while he was at a distance of 10-15 paces, he saw the appellant firing a gun at Khalaksingh. He testified to the oral dying declaration made by the deceased at the instance of Jhandusingh and others. He identified the gun (Article A) as belonging to the appellant with which he had discharged the bullet. The contradictions brought out in his cross-examination do not discredit his testimony. In Ex. p-3, he has referred only to the main incident of firing and, therefore, omission regarding the dying declaration in his statement made on 23-2-1970, could not discredit his testimony because in his earlier statement Ex. D. 2 dated 5-2-1970, he has referred to the oral dying declaration. In his evidence we find no drawback of substance to discredit his testimony. We agree with the Sessions Judge that he is a wholly reliable witness and we believe him not only as an eye witness, but also as his haying heard the deceased making the oral dying declaration implicating the appellant.
20. Mansingh (P.W. 1) is also an eye witness who saw the appellant armed with a gun and shooting at Khalaksingh, He also referred to the oral dying declaration made by the deceased. He identified the gun (Art. A) as the weapon of offence. His evidence could not be discredited on the ground that he did not disclose of his having seen the incident at the place of occurrence. This was not necessary, because besides him, there were more than one eyewitness to the shooting. The injured himself had declared the name of the appellant as his assailant. There was thus no propriety in his having himself proclaimed as an eyewitness. His evidence does not justify the defence version that the quarrel was sudden, because the arrival of the appellant armed with a gun, shows his pre-determination to settle his dues because of the deceased having assaulted his son. His statement in para 31 that the deceased was catching hold of a branch of Beri does not indicate that he was armed with a lathi or that he had either raised it or used it against the appellant. We find no reason to discard his testimony.
21. Even if the evidence of Sultansingh (P.W. 3) an eye witness to the shooting is excluded altogether that does not adversely affect the testimony of the witnesses discussed above. We, however, do not think that his evidence, being dubbed as that of a chance witness entitles total rejection but only needs cautious scrutiny. After cautious scrutiny, we find no ground to reject his testimony, at least to the extent of oral dying declaration made by the deceased,
22. We omit Layaksingh (P.W. 4) iron consideration as he has been held to be wholly unreliable in para 17 of the judgment.
23. Laxmansingh (P. W. 10) is the Patel of the village Taj pur and is thus an independent witness. There is nothing to indicate that he has any animus against the appellant. He came to the spot hearing that the appellant had shot Khalaksingh. He is positive that Khalaksingh was speaking and on being questioned by him, named the appellant as the person' who had shot him. We find his evidence regarding the oral dying declaration fully reliable.
24. Shri Gupta attacked the dying declaration on number of grounds. He contended that the oral dying declaration recorded by the Sub-Inspector Police deserves to be rejected. I have no dispute with this proposition. But in this case, there is no written dying declaration in the hand of the Police Officer. The prosecution evidence consisted of oral dying declaration testified by more than one witness including the Patel of the village and finds corroboration from the F. I. R. Ex. p-3. Shri Gupta also relied on the following cases:
(i) Ram Kumar v State of M. P. : 1975CriLJ870 (ii) Ajuddhi v. State of M.P. (1977) 2 MP WN (SN) 109. (iii) Santasing v. State of Punjab : 1976CriLJ1875 . (iv) Chanansingh v. State of Haryana : AIR1971SC1554 and (v) Datarsingh v. State of Punjab : 1974CriLJ908 .
He contended that material witnesses were not examined, persons examined were not mentioned in the F. I. R., persons not named in the F. I. R. have been examined and there was delay in the arrest of accused persons. According to him, all these drawbacks throw considerable doubt on the credibility of the prosecution evidence.
25. Regarding late arrest of the appellant, it is sufficient to mention that he had absconded immediately after the incident and, therefore, there was delay in his arrest. In this connection the evidence of H. C. Gotiram (PW 3) and Sub-Inspector P. D. Misra, (P.W. 14) may be referred to. Even proceedings under Sections 87 and 88 of the Cr. P.'C. were taken. On these facts, late arrest of the appellant can give no benefit to him.
26. Regarding examination of material witnesses, the prosecution has to examine only those witnesses who are essential to the unfolding of the narration. It is not necessary that it should examine each and every witness irrespective of his being useful to the Court or not. This aspect has been discussed by the Court below in paras 12, 13 and 14 of the judgment and there is a finding that there is no case of dishonest suppression of material witnesses.
27. Even accepting what Shri Gupta has urged no charge could be laid against the prosecution because it has examined Jhandusingh (P.W. 5) Raghuvir-singh (P. W. 9) and Jaswantsingh (P. W. 2) who are named in the F. I. R. A perusal of the F. I. R. Ex. p-3 itself shows that the list of witnesses was not exhaustive. Jhandusingh (P. W. 5) is not an eye witness and his knowledge was confined to the information gathered by him in the short time at his disposal. Hence it could not be urged that other persons examined were not present and were deliberately examined. The F. I. R. itself shows that names of all the persons present were not mentioned and only few names were mentioned. Therefore, non-mention of the names of some of the eye witnesses does not discredit their evidence. Even otherwise, as discussed above, Jhandusingh, Raghuvirsingh and Jaswantsingh are named in the initial report. In the aforesaid circumstances, the drawbacks pointed out and the rulings relied upon by Shri Gupta do not apply to the facts of this case, though we have no dispute with the propositions laid down therein.
28. A serious argument was advanced regarding the ability of the injured Khalaksingh to make tin oral dying declaration. There is the testimony of more than one witness including an independent witness, i.e., the patel of the village, who has testified to the oral dying declaration which is also mentioned in the F.I.R., when there is direct oral testimony on this point, it could not be rejected on the ground that it is not supported by medical evidence.
29. In this connection, reference may be made to (Bajwa v. State of U.P. : 1973CriLJ769 and (Karanailsingh v. State of Punjab : 1971CriLJ1463 .
30. A perusal of the evidence of Dy, Kulshreshtha, (P. W. 11) relied upon by Shri Gupta being highly vacillating does not categorically rule out the possibility of the injured being in a state of consciousness after receiving the injury. In Para 6, Dr. Kulshrestha stated that the man must have died instantaneously. Then he has stated that this was not the only possibility but the first possibility. He then stated that it depended upon the man who received the injury. Then he stated that it was also possible that, the man might have survived hardly for 2 or 3 minutes. These statements themselves present a possibility of the man. being able to speak for a few minutes after receiving the injury. In , he admitted that there was no injury to the right lung, nor the vocal cord was injured. According to him the only reason for instantaneous death was shock accompanied by haemorrhage. He admitted that major blood vessels were healthy. The injured was quite healthy and stout. Larynx and trachea were healthy. There was no other injury on any other part of his body, nor was he suffering from any disease. In Para 9 he again made a vacillating statement that he was definite that in this particular case the man must have been in all probability,: died instantaneously. We have carefully considered his evidence and find i1 vascillating and unsupported by reasons. Even accepting his evidence, shock and haemorrhage will come after sometime when all other vital organs were healthy.
31. As against the opinion of Dr. Kulshreshtha (P.W. 11) the evidence of Dr. Shukla (C. W. 1) exposed the falsity of his opinion. He stated that the opinion given by Dr. Kulshreshtha cannot be supported or endorsed to the extent of ruling out all probability of survival for sometime, We thus hold the evidence of Dr. Kulshreshtha vacillating and inconclusive and when examined in the light of facts stated above, together with the opinion of Dr. Shukla it is apparent that after receiving the injury Khalaksingh was in a position to speak out as has been testified by more than one witness. We, therefore, reject the contention of Shri Gupta that the injured either died instantaneously or was not able to speak out after receiving the injury.
32. The use of the gun with presence of lacerated wound 12 cm. x 10 c. m. x 0 c. m. over left axils and chest with laceration of pleura and lung and fracture of 2nd and 3rd ribs, taken together, indicated that the appellant had the intention to finish off his victim. The injury was sufficient in the ordinary course of nature to cause death. We find no support for the contention of Shri Gupta that it was a sudden quarrel or that the appellant acted in exercise of right of defense of person. The appellant, duly armed went to the deceased who was unarmed and mere exchange of abuses between the two did not show that it was a fight on the spur of the moment or that the appellant had any apprehension from the deceased. We are, therefore, of the view that the prosecution has; established the guilt of the appellant under Section 302 of the I. P. C, beyond all reasonable doubt. We find no substance in this appeal,
33. For the reasons given above, the appeal fails and is hereby dismissed. Conviction of the appellant Dayaramsingh under Section 302 of the I. P. C, with sentence of imprisonment for life is confirmed. His bail bonds are cancelled. He should surrender to his bail to serve out the sentence of imprisonment.