M.L. Shrimal, J.
1. This appeal has been preferred by the convicts Balkan and Multan against the judgment of the Sessions Judge, Ganganagar dated May 24, 1971 whereby Balkan was convicted under Section 302 I. P. C for causing the murder of Gopal and sentenced to rigorous imprisonment for life, whereas Multan was convicted under Section 307 I. P.C. for attempting to commit the murder of Gopal, and sentenced to rigorous imprisonment for five years. Both the appellants were further convicted under Section 25(1) of the Indian Arms Act and each of them was sentenced to undergo rigorous imprisonment for two years. Both the sentences have been ordered to run concurrently. Both Balkan and Multan were acquitted of all other charges.
2. The facts of this case lie within a narrow compass- On August 21, 1970 at 12.0 O'clock in the noon Gopal (since deceased), Balwant Singh (P.W. 5) and Laxmi alias Gogi (P.W. 3), sister of the deceased, were sitting in a lane which is adjacent to the house of Padmaram (P. W- 1), father of the deceased. The two appellants armed with 12 bore pistols and in a druken state passed through the lane, uttering obscene words. On seeing the appellants in that state Gopal (since deceased) objected as to why they were loitering in the lane and using filthy language whereupon Balkan in a tell-tale manner said, 'Let us teach a lesson to Gopal for his rubbish talk'. It is alleged that immediately thereafter Multan fired a pistol-shot at Gopal (deceased), but it missed the mark and soon after that, Balkan fired another pistol shot which caused injuries on the left side of the chest of Gopal, who fell down on the spot and the accused took to their heels. It is alleged that Indraj was playing in the Bakhal, but hearing the talk between Gopal (deceased) and the appellants, he reached the spot at the relevant time. According to the prosecution P.W. 2 Indraj, P.W. 3 Laxmi alias Gogi and P.W. 5 Balwant Singh witnessed the occurrence. P.W. 4 Smt. Keshar (mother of the deceased) had also arrived on the scene of occurrence but she could see only the accused running away and the injured Gopal (deceased) lying in the lane. Indraj rushed to call his father P.W. 1 Padma Ram from the field. He informed P.W. 1 Padmaram that Multan and Balkari had fired shots at Gopal (deceased). P- W. 1 Padmaram immediately came to his house and found Gopal lying injured in the lane. Gopal (deceased) told his father P.W. 1 Padmaram that he, P.W. 3 Laxmi alias Gogi and P- W. 5 Balwant Singh were sitting in the lane behind their house near the well. The appellants Balkari and Multan armed with pistols came to the lane in a drunken state and were making obscene utterances. On his raising objection, Balkari told in a tell-tale manner, 'we will teach you a lesson for your rubbish talk'. Immediately thereafter Multan fired a pistol-shot at Gopal which passed over him without causing any injury. Thereafter Balkari fired another pistol-shot which hit him and caused injuries in the left side of his chest- The injured Gopal was taken to the hospital at Ganganagar. Thereafter P.W. 1 Padmaram (father of the deceased) lodged the first information report of the occurrence at 2 p.m. on the same day viz. 21-8-1970 at the Police Station, Sadar, Gan~ ganagar, which is situated at a distance of 10 miles from the place of occurrence. The first information report was reduced to writing and is marked Ex. P. 4. After registering the case the Station House Officer P.W. 10 Bhan-war Lai went to the hospital. He recorded the statement of Gopal and finding his condition serious, the Station House Officer made a request vi9e Ex. P- 13 to P.W. 8 Shri B. B. Datta to record the dying declaration of Gopal. The dying declaration was recorded by P.W. 8 Shri B. B. Datta, Second Class Magistrate (vide Ex. P. 14). The injuries on the person of Gopal were noted at 2.40 p.m. by P.W. 11 Dr, Moman Ram. The injury report is Ex. P. 1. Gopal succumbed to his injuries at 5 p.m. The post-mortem examination of the dead body of' Gopal was performed by P.W. 11 Moman Ram. The injuries found on his person are:
(1) Gunshot wound 1/3' x 1/4' x abdomen cavity deep on the lower half of anterior lateral side of left side of chest 4 1/2' lateral to the mid-line.
(2) Gun shot wound 1/3' x 1/4 x abdomen cavity deep on the lower half of anterior lateral side of left side of chest 1/2' lateral to injury No. 1.
(3) Gun shot wound 1/3' x 1/2 abdomen cavity deep on the lower half of anterior lateral side of left side of chest W below and lateral to injury No- 2.
(4) Two adjoining gun-shot wounds' each 1/3' x 1/4' x abdominal cavity deep on the lower half anterior lateral side of left side of chest 1/2z' below and lateral to injury No. 1.
(5) Gun-shot wound 3/4' x 1/4' x skin deep on the lower half of anterior lateral side of left side of chest 1/3' below and lateral to injury No. 4.
(6) Gun-shot wound 1/3' x 1/4' abdomen cavity deep on the lower half anterior lateral side of left side of chest 1' below and lateral to injury No. 3. Injury No- 5 was simple and rest were grievous.
3. On opening the dead body P.W. 11 Dr. Momanram noted the following internal injuries:
Abdomen; Peritonium was punctured and abdomen cavity was full of blood.
Stomach and its contents: Punctured through and through at five places and the contents were digested food material. Small intestines healthy. Spleen: Lacerated bladder full of urine.
4. In the evening of 21-8-1970 P.W. 10 Bhanwarlal, Station House Officer, reached the place of occurrence, inspected the site at the instance of P.W. 2 Indraj, prepared the site plan Ex. P. 5 and site inspection note Ex. P. 5A. He arrested the accused on 23-8-1970.
5. After usual investigation, the Police submitted a report under Section 173 Cr. P. C Igainst both the appellants in the Court of Munsiff and First Class Magistrate, Sri Ganganagar. The said Magistrate conducted the preliminary enquiry in accordance with Section 207A Cr. P. C-,. and committed the accused to the Court of Sessions 'Judge, Sri Ganganagar. The accused pleaded not guilty to the charge. In support of their case, the prosecution examined 11 witnesses, out of whom P.W. 2 Indraj, P. W- S Laxmi alias Gogi, P.W. 5 Balwant Singh were, according to the prosecution, eye-witnesses of the occurrence, P.W. 5 Balwant Singh was declared a hostile witness. P.W. 1 Padmaram is the father of the deceased Gopal. He was examined to prove ocular dying declaration made by Gopal (deceased) before the first information report was lodged at the polioe station. He was the author of the first information report. P.W. 4 Smt. Keshar is the mother of Gopal (deceased) who reached the scene of occurrence when the accused were making good their escape. She recognised and identified them on the spot. P.W. U B. B. Datta is the Magistrate, who proved the dying declaration Ex. P. 14. He himself ascertained the capacity of the deceased to answer the questions and verify the statement. Besides this, prior to the recording of the dying declaration (Ex. P. 14), he obtained a certi ficate from the doctor-in-charge of the patient to the effect that Gopal (deceased) son of Padmaram, was in a fit condition to give the statement. P.W. 11 Dr. Moman Ram is the person who performed the post-mortem exa-minanon of the dead body of Gopal. The accused persons in their statements under Section 342 Cr. P. C- denied the prosecution allegation about their having participated in the assault on the deceased in the manner indicated by the prosecution. Both of them further stated that there were many other persons having the same name as the accused.
6. The learned Sessions Judge found the prosecution evidence reliable, He convicted and sentenced both the appellants as mentioned above by his judgment dated May 24, 1971. Aggrieved by their conviction and sentence, both the accused have submitted this appeal,
7. Mr. K. C. Gaur, learned Counsel for the accused, assailed the conviction on the ground that the evidence adduced by the prosecution in this case is not reliable and suffers from a number of infirmities. His contention was that out of the three alleged eyewitnesses, two could not have been On the scene of occurrence, and the third one was declared hostile by the prosecution and as such his statement cannot be of any avail to the prosecution. That the dying declarations -both ocular and written are neither true nor reliable. Lastly, he urged that admittedly both the appellants were under the influence of drink. Their minds were obscured to such an extent that they were not in a position to form the required intention and as such the appellants should be held guilty under Section 304 Part II I. P. C-, and not under Sec-302 I. P. C The learned Public Prosecutor Mr. Sishodiya, appearing on behalf of the State, urged that both the eye-witnesses P.W. 2 Indraj and P. W- 3 Laxmi alias Gogi are sterling worth. The prosecution can place reliance on the statement of a hostile witness also for the purpose of corroboration of other evidence. He urged that the evidence regarding dying declaration was unimpeachable. He further urged that voluntary drunkenness is no defence. A man is presumed to intend the natural consequences of his act. Then is nothing oil the record to prove that the appellants were too intoxicated to form the intent for the purpose. The evidence on record shows that the accused, were talking coherently and that they took to their heels Just after killing Gopal. We propose to deal with the rival contentions of the parties ad-seriatum;
8. The first contention of the learned Counsel for the accused is that both P.W. 2 Indraj and P.W. 3 Smt. Laxmi alias Gogi were not present on the scene of occurrence at the time of the murder of Gopal. We find force in this contention only in part regarding P.W. 2 Indraj. The witness in his cross-examination admitted that at the time of occurrence he was playing in his Bakhal. He further admitted that the place of occurrence was not visible from the 'Bakhal', but hearing the noise, he came out of his house. In the initial stage of his examination-in-chif he stated that Gopal died of bullet injury nine months back. At the time when the bullet was fired at Gopal by Balkari and Multan (convicts), he was playing near the door. Later on he stated that he was present in the lane when the appellants came and that h witnessed the entire occurrence. Thus his statement regarding the point of time when he reached the lane is not consistent. P.W. 1 Padmaram first of all got the information regarding the occurrence from P.W. 2 Indraj. A perusal of the first information report shows that P.W. 2 Indraj did not disclose to his father on the field that he had seen the occurrence. A perusal of the site plan Ex. P. 5 and the site inspection note Ex. P. 5-A shows that the place where Gopal (deceased) is said to have been sitting at the time of occurrence has been marked 'A' in the plan. Similarly the places where the eye-witnesses P.W. 3 Laxmi and P.W. 5 Balwant Singh were sitting and seeing the occurrence have been marked as ?B' and 'C in the plan But the presence of P.W. 2 Indraj at the place from where he is alleged to have seen the occurrence has not been shown by any mark in the plan, though the site plan is alleged to have been prepared at the instance of P.W. 2 Indraj. This omission in the site-plan is very significant and has a great bearing on the veracity of the statement of this witness. Besides this, he is a child witness, nearly 11 years of age on the date of occurrence. Taking a conspectus of the circumstances mentioned above, we consider it highly unsafe to convict the accused persons for the charges of murder and attempt to murder on the basis of this questionable witness.
9. As regards F. W. 3 Laxmi alias Gogi, the learned oounscl for the accused pointed out two infirmities only:
(a) That her presence at the scene of occurrence has not been mentioned in the dying declaration Ex. P. 14 recorded by the Second Class Magistrate P.W. 8 B. B. Datta;
(b) that she was examined after two days by the police though she could have been examined on August -21, 1970.
10. The learned Counsel for the State urged that the pet and household name of P.W. 3 Laxmi is Gogi, Her name appears in the first information report (Ex. P. 4). It has been specifically mentioned therein that Gopal told his father that at the time of occurrence P.W. 3 Laxmi alias Gogi and P.W. 5 Balwant were sitting in the lane. This first information report was lodged within 2 hours of the occurrence. The distance between the Police Station and the place of occurrence is 10 miles. The first information report was lodged after taking the injured Gopal to the hospital at Sri Gang&nagar.; P.W. 1 Padma-ram must have taken some time to arrange first-aid to his injured son. The first informa tion report in the circumstances of the case can, therefore, be said to be prompt enough. It is also noteworthy that neither Gopal nor his father Padmaram or P.W. 3 Laxmi had any animus against the accused persons for falsely implicating them in a serious case of murder, The accused have no doubt denied their complicity in the crime, but have not imputed any motive against any of the pro secution witnesses. P.W. 3 Laxmi's presence in the lane at the time of occurrence has been shown in the site-plan (Ex. P. 5) and the ins pection note Ex. P. 5A. The learned Public Prosecutor further submitted that the first information report containing the first dying declaration was recorded on August 21, 1970 at 2 p.m. and the dying declaration Ex. P. 14 was recorded by P.W. 8 B. B. Datta at 3.20 on August 21, 1970. Thus the first information report was prior in time and non-mention of the name of P- W. 3 Laxmi in Ex. P. 14 cannot be of much avail to the defence in the circumstances of the case. We are inclined to agree with the learned Public Prosecutor.
11. The second infirmity pointed out by the learned Counsel for the accused is regarding the late examination of this witness in the Police. We find no substance in this argument. P.W. 3 Laxmi's name, as an eyewitness of the occurrence, had been mentioned in the first information report (Ex, P. 4) which was lodged within about 2 hours of the occurrence. It is not a case of party-faction. Neither Laxmi nor her father had any animus against the accused. In the circumstances of this case the delay in recording the statement of P.W. 3 Laxmi alias Gogi by the Investigating Officer would not justify rejection of her testimony.
12. We have given our thoughtful consideration to the statement of P, W. 3 Laxmi alias Gogi. She unfolded the entire prosecution stery in detail. She had withstood the test of cross-examination and emerged out with credit. The substratum of her evidence has throughout been consistent. We do not have any reason to hold that her testimony is unreliable. Nothing could be brought out in her cross-examination on the basis of which the veracity of her statement can be challenged. For the reasons already mentioned, we hold that the presence of P.W. 3 Laxmi on the scene of occurrence is indubitably proved.
13. It was urged on behalf of the appellants that P.W. 5 Balwant Singh was examined by the prosecution to support their case, but was permitted to be cross-examined by the Public Prosecutor, and as such a part of his statement cannot be utilised by the prosecution. Reliance was placed on Jagir Singh v. State : 1975CriLJ1009 . The learned Public Prosecutor for the State Mr. Sishodiya urged that a part of the statement of a hostile witness can be used by either of the parties to corroborate other evidence, and placed reliance on Bhanu-prasad v. State of Gujarat and Narayan Nalhu Naik v. State of Maharashtra : 1SCR133 .
14. In Jagir Singh v. State 1975 Cri LJ 1009 (SC), their Lordships were pleased to observe:
It is now well settled that when a witness, who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony.
In view of this clear dictum of the Supreme Court we are unable to use the evidence of Balwant Singh P.W. 5 in favour of the prosecution.
15. The third contention of the learned Counsel for the appellants is that the trial court erred in placing reliance on the dying declarations. He further urged that if the eye-witnesses are not relied upon, the only evidence which remains against the accused persons is the dying declarations, one made to P.W. 1 Padmaram and the other made to the Second Class Magistrate, P. W- 8 B. B. Datta which was reduced to writing and marked Ex. P. 14. The learned Counsel urged that P.W. 1 Padmaram is the solitary witness to prove the ocular dying declaration. He has not been corroborated on this point by any other witness such as P.W. 2 Indraj or P.W. 3 Laxmi, whose presence cannot be eliminated from the place where the first dying declaration is alleged to have been made. He further submitted that it is not safe to convict the accused persons merely on the dying declaration, because such a statement is not made on oath and is not subject to cross-examination. After receiving the pistol-shot injuries on the vital part of the body, Gopal must have been mentally and physically in a state of so much confusion as not to be able to say things with any clarity. We do not feel persuaded to accept this contention of the learned Counsel for the appellants.
16. As already discussed, the first information report was lodged very promptly within two hours of the occurrence at the Police Station, Sri Ganganagar, which is situated at a distance of 10 miles from the scene of occurrence, and that also, after getting Gopal admitted to the hospital. Neither Gopal (deceased) nor his father P.W. 1 Padma Ram had any animus against the accused persons. The statement of P- W. 1 Padmaram stands corroborated on the point by the first information report (Ex. P. 14). It is not possible to hold that soon after the occurrence in question P.W. 1 Padmaram so quickly cooked up a false story of dying declaration involving the appellants- The first information report contains a very detailed version of the dying declaration. These details constitute intrinsic evidence detracting from the plea that making of dying declaration to P.W. 1 Padmaram is a got-up story.
17. The murder was committed in day-light at 12.00 noon. The statement of P, W. 8 B. B. Datta and the endorsement made by the doctor on the reverse of Ex. P. 13 proves that the capacity of Gopal to make a statement had not been impaired in any way at the time he made the dying declaration. The dying declaration mentioned in the first information report and the dying declaration reduced to writing by P.W. 8 B. B. Datta and marked Ex. P. 14, are consistent with each other. We have gone through the dying declarations very carefully and scrutinised the statements of P.W. 8 B. B. Datta and P.W. 1 Padmaram. Nothing has been brought out in cross-examination which can detract from the reliability of their evidence. We hold that the dying declarations made by Gopal on August 21, 1970 are truthful versions as to the circumstances of the death and the assailants of the victim.
18. The law on the point stands well settled- Reference may be made to Harbans Singh v. The State of Punjab : AIR1962SC439 and Lallubhai v. The State of Gujarat : 1972CriLJ828 .
19. In Harbans Singh v. State of Punjab : AIR1962SC439 it has been held,.It must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declaration which do not arise in the case of assessing the value of a statement made in court by a person claiming to be a witness of the occurrence.
20. In Lallubhai v. State of Gujarat : 1972CriLJ828 , their Lordships were pleased to observe,-
The law with regard to dying declarations is very clear. A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of 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 the dying man is normally not likely to implicate innocent persons falsely.
21. As already mentioned above the two dying declarations made within a period of 3 1/2 hours by Gopal (deceased) are consistent. The deceased has consistently named the appellants as his assailants and in both the dying declarations it was made clear by Gopal (deceased) that a shot fired by Balkari from his pistol hit him on the left side of his chest. This statement stands corroborated by the statement of P.W. 3 Laxmi as well as Ex. P. 1 injury report and the statement of P.W. 11 Dr. Momanrarn, showing that the dispersion of the pellets was within an area of hardly 2' and tattooing marks were present around the margins of the wounds. The medical evidence also indicates that the incident took place in the manner stated by the deceased in his dying declarations- In our view, apart from the ocular account of the incident given by the eye-witness P.W. 3 Laxmi, the, dying declaration made by the deceased Gopal is truthful, coherent and consistent. It stands amply corroborated by the medical evidence and the size of the injuries received by Gopal (deceased). The pistol fired by Multan did not cause any injury to Gopal (deceased). It missed the mark and the shot aimed and fired by Balkari caused the injuries in the chest of Gopal (deceased) resulting in his death. Thus the guilt has been brought home to the accused appellants.
22. Lastly it was urged that the trial Court committed an error of law in convicting the appellant Balkari under Section 302 I. P.C. He further pleaded that the case against the appellants falls under Section 304 Part II I, P. C Admittedly both the appellants were under the influence of drink. Their minds were obscured to such an extent that they were not in a position to form the required intent, necessary for convicting the accused under Sec 3021. P.C. Reliance has been placed on Gulab Singh v. State of Rajasthan 1975 Cri LJ 695 (Raj). That case has no bearing on the facts of the case on hand. That was a case of inflicting a lathi blow on the head of the deceased, by a person who was not directly in controversy, but was interested only in helping the other accused. The case is entirely distinguishable on facts from the present one, and so it cannot be of any avail to the accused.
23. The other case relied upon by the learned Counsel for the appellants is Krishna Singh v. State of Orissa 1971 Cri L] 1497 (Ori). Placing reliance on this case the learned Counsel urged that having regard to the provisions of Section 86 I. P.C. and because of the total absence of motive or premeditation to commit the murder of Gopal and the fact that the appellants were heavily drunk at the time of occurrence the offence committed by the appellants, if at all, would fall only under Sec 304 Part II I. P.C. and not under Section 302 I. P.C. of which the accused Balkari has been convicted. We have examined the case of Krushna Singh (supra)-The case on hand is totally distinguishable from the facts of the case of Krushna Singh (supra). Their Lordships of the Orissa High Court on the facts of that case, came to the conclusion that the appellant in that case, Krushna Singh, at the time of occurrence was beside his mind due to drinks whereas in the case on hand, there is nothing on record on the basis of which it can be held that the appellant Balkari was so much under the jn-fluence of drink that his mind was so obscured as to be incapacitated to form the required /intention. The statement of P, W. 3 Laxmi read with the statement of P.W. 1 Padmaratn and the first information report (Ex. P.4) very clearly show that the accused Balkari at the time of commission of the crime was not incapacitated to form the requisite intention. He along with Multan was loitering in the lane and uttering obscene words. When Gopal objected as to why they were loitering in the lane and using filthy language, Multan fired a pistol-shot which missed the mark and soon after that Balkari fired another pistol-shot at Gopal (deceased) which caused injuries on the left side of his chest. Content with their doing immediately the accused took to their heels. All these facts, in our opinion, go to prove that there was not proved incapacity in the accused Balkari to form the intention to cause bodily injury at the place where it was caused. There is sufficient evidence on record that the appellant Balkari aimed the shot at the chest of the deceased which is undoubtedly a vital part of the body, and the injury inflicted was sufficient in the ordinary course of nature to cause death. As already observed, the evidence disclosed that Balkari was not heavily drunk, otherwise he could not have walked independently and talked coherently. He knew the nature of the act which he was performing. Simply because the mind of the accused was so affected by drink that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his act. In similar circumstances their for ships of the Supreme Court in Basdev v. State of Pepsu : 1956CriLJ919 (2) were pleased to hold the accused of that case guilty of the offence punishable under Section 302 I. P- C. Their Lordships have observed as follows:.
In the present case the learned Judges have found that although the accused was under the influence of drink, he was not so much under its influence that his mind was so obscured by the drink that there was incapacity in him to form the required intention as stated. They go on to observe:-
All that the evidence shows at the most is that at times he staggered and was incoherent in his talk, but the same evidence shows that he was also capable A moving himself independently and talking coherently as well. At the same time it is proved that he came to the darwaza of Natha Singh P.W. 12 by himself, that he made a choice for his own seat and that is why he asked the deceased to move away from his place that after shooting at the deceased he did attempt to get away and was secured at some short distance from the darwaza, and that when secured he realised what he had done and thus requested the witnesses to be forgiven saying that it had happened from him.
There is no evidence that when taken to the police station Barnala, he did not talk or go there just as the witnesses and had to be specially supported. All these facts, in my opinion, go to prove that there was not proved incapacity in the accused to form the intention to cause bodily injury sufficient in the ordinary course of nature to cause death.'
The accused had, therefore, failed to prove such incapacity as would have been available to him as a defence, and so the law presumes that he intended the natural and probable consequences of his act, in other words, that he intended to inflict bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.
(16) On this finding the offence is not reduced from murder to culpable homicide not amounting to murder under the second part of Section 304 of the Penal Code. The conviction and sentence are right and the appeal is dismissed.
24. We find that the guilt has been fully brought home to the accused and there is no force in this appeal. The conviction and sentence awarded to both the appellants by the trial court are confirmed, and the appeal is dismissed.