JUDGMENT
K.S. Lodha, J.
1. The appellant Narpat Singh has been convicted under Section 302, IPC and sentenced to life imprisonment and a fine of Rs. 500/-, in default, he has been further directed to undergo two months’ R.I. by the learned Sessions Judge, Balotra, by his judgment dated 5-3-1983. He was also convicted under Section 27, of the Arms Act and sentenced to two years’ R.I. and a fine of Rs. 200/-, in default, one month’s R.I., by the same judgment. Aggrieved of this, he has come up in appeal.
2. The prosecution story, briefly stated is that the fields of the deceased Hingol Singh, Devi Singh father of the present accused Narpat Singh, Bhoor Singh and Deep Singh are situated near each other and there is a river flowing in between them. Hingol Singh had put an obstruction against the river thereby stopping its flow towards Devi Singh’s field and on that account the accused Narpat Singh s/o Devi Singh was annoyed with him. It appears that some ‘Panchayat’ had also been held in respect of this dispute and the matter was tried to be settled but still Narpat Singh was bearing a grudge against Hingol Singh.
3. On 11-7-81, at about 6.45 P.M., Hamir Singh was standing outside his ‘dhani’, which is near the dhani of Deep Singh, Hingol Singh. He heard a report of gun fire from the eastern side and little later while he was standing near the water reservoir outsidt his dhani and Deep Singh, Bhoor Singh, Aashu, Wala etc. were also standing nearby, then Loon Singh s/o Deep Singh came running and weeping and told them that Narpat Singh had fired at Hingol Singh and that Hingol Singh had fallen down and further that Durga was sitting by his side. Thereupon, Deep Singh, Bhoor Singh, Aashu and Wala ran towards the site and Hamir Singh also followed them on his mare. When they reached the spot where Hingol Singh was lying injured near the way from Chhapri Nadi and Durga was sitting by his side, they found that Hingol Singh had received injuries from pellets on his right side and hand and was bleeding. On their reaching there, Hingol Singh told them that Narpat Singh, who was hiding near the ‘kair’ had fired from a twelve bore gun with the intention of killing him and thus he had been injured. On receiving this information Hamir Singh etc. tried to make arrangements for taking him to the hospital and Hamir Singh met Derawar Singh at Police Chowki, Vishala and informed him of this incident. They also tried to contract Police Station, Barmer in order to inform it about this incident but the line was out of order and, therefore, they could not talk to the Police Station. It is also mentioned in the report lodged by Hamir Singh at the police out post that the doctor was also not available at Vishala and no motor car was available there for carrying the deceased and, therefore, he (Hamir Singh) took the tractor of Gulab Singh and came to Barmer and lodged the verbal report which was taken down vide Ex.P.12. In this report he had further stated that Hingol Singh and Loon Singh were coming with the water tank and the ‘pakhal’ on the camel from Chhapari Nadi towards their dhani when Narpat Singh had fired at Hingol Singh. He also mentioned that Durga had seen Narpat Singh firing the gun and then running away as Durga was coming behind Hingol Singh. He also mentioned further that as there was dispute regarding the flow of water between Hingol Singh and Narpat Singh, Narpat Singh had killed Hingol Singh because Hingol Singh had obstructed the course of water. On this, the police registered a case for offence under Section 307, IPC and started investigations. The Police Constable Darawar Singh had reached the spot immediately after receiving the information at the chowki through Hamir Singh. By that time, Hingol Singh was living. Ram Swaroop, P.W. 18 after registering the case vide Ex.P. 12 reached the spot later in the night. By that time, Hingol Singh had breathed his last. After usual investigations and getting the post-mortem examination of the dead body of Hingol Singh carried out, the police put up a challan against the accused and the learned Judicial Magistrate, Barmer committed him to the Court of the learned Sessions Judge, Balotra. The learned Sessions Judge framed a charge under Section 202, I.P.C. and another under Section 27 of the Arms Act against the accused. He pleaded not guilty. The prosecution examined 19 witnesses and produced 21 documents. The accused denied the prosecution story but did not examine any witness in his defence, The learned Judge on completion of the trial, convicted and sentenced him as aforesaid.
4. The learned Judge has based his conviction of the appellant on the testimony of the two eye-witnesses P.W. 11 Loon Singh and P.W. 12 Durga as also the dying declaration of the deceased proved by P.W. 2 Bhoor Singh, P.W. 8 Deep Singh and P.W. 15 Hamir Singh. He also placed reliance upon the recovery of a gun and pellets including empty of cartridges said to have been hidden by the accused near the place of the incident. The learned Counsel for the appellant has challenged all these three pieces of evidence and has vehemently urged that the identity of the accused Narpat Singh was highly in dispute, eye-witnesses are not at all reliable, that the dying declaration is also not free from doubt as from the evidence it appears that the deceased must have already died before the alleged dying declaration could have been made by him and that the alleged recovery of the gun and the empties etc. was also of no avail to the prosecution. The learned public prosecutor, on the other hand, has supported the findings of the learned Sessions Judge and has urged that the conviction of the appellant is well founded.
5. We have given our careful consideration of the rival contentions. We shall take up the contentions raised by the learned Counsel for the appellant one by one.
6. Expanding his contention about the doubtful identity of the accused, the learned counsel for the appellant urged that from the prosecution own evidence, it appeared that there were five persons by the name of Narpat Singh in the village Vishala. The parentage of the accused had not been stated in the first information report nor disclosed by the deceased in dying declaration nor the witnesses had disclosed it in their statements before the police but now the witnesses have tried to make an improvement by alleging that the parentage of the accused had been disclosed by the deceased in the dying declaration and they had also stated the same in their statements before the police. When all the eye-witnesses have thus made a particular and uniform improvement over their police statements. It must be taken that they had
designedly done so with an ulterior motive and that that part of their statements before the court should not be believed. In this connection he pointed out that in the first information report, only Narpat Singh has been mentioned without mentioning the name of his father. Then P.W. 2 Bhoor Singh has stated the name of the accused as Narpat Singh s/ o Devi Singh. P.W. 8 Deep Singh has stated the name of the accused as Narpat Singh s/o Hingol Singh and the accused is as a matter of fact Narpatsingh s/o Devi Singh and it is admitted by the witnesses, e.g. P.W. 1 Derawar Singh, that there is one more Narpat Singh s/ o Gulab Singh in village Vishala and that Narpat Singh as also Gulab Singh had entered the witness box. In this state of affairs, when the name of the father of the accused had not been mentioned in the first information report or in the police statements and was also not disputed by the accused in his alleged dying declaration, it cannot be said for certain which Narpat Singh was the real culprit. This argument had been raised by the learned Counsel with great vehemence but on a careful scrutiny of the record we find it has absolutely no legs to stand upon. No doubt, there is Narpat Singh s/o Gulab Singh admittedly in village Vishala beyond the accused Narpat Singh s/o Devi Singh but so far as Narpat Singh s/o Hingol Singh and Narpat Singh s/ o Deep Singh, as have been recorded in the statements of Deep Singh and Hamir Singh go it clearly appears that it was on account of mistake either by the learned Sessions Judge while dictating the statements of these witnesses or by the typist who typed out these statements because it is nobody’s case’ that Hingol Singh or Deep Singh has a son by the name of Narpat Singh. So far as Narpat Singh s/o Gulab Singh is concerned, both Narpat Singh and Gulab Singh have appeared in evidence in this case and it has not been brought out in the cross-examination even by a suggestion that this Narpat Singh could have been the real accused. Now we are left only with another Narpat Singh whose parentage has not been mentioned in the first information report or in the statements of the witnesses and according to the learned Counsel, he must be a person different from Narpat Singh s/o Devi Singh, the present accused, but to us there does not appear to be doubt that this Narpat Singh whose father’s name was thus not mentioned is none else but the present accused Narpat Singh s/o Devi Singh. It may be mentioned that in the first information report Ex.P.12, which was got recorded by Hamir Singh at police station, Barmer, it had clearly been mentioned that Narpal Singh wanted to kill Hingol Singh because there was a dispute going on between them regarding the flow of water through the fields of Devi Singh, Hamir Singh, Deep Singh and Hingol Singh etc. and Hingol Singh had obstructed that flow of water of Devi Singh’s field and, therefore, Devi Singh got annoyed with him. The accused is the son of this Devi Singh and, therefore, the reference to Narpat Singh in the first information report must clearly be to the present accused and none else. ;
7. So far as the improvement regarding the name of the father of the accused in the statements of the witnesses in the court and the absence thereof in their police statements is concerned, it may at once be stated that rio doubt, the name of the father of the accused had not been mentioned by the witnesses Loon Singh, Bhoor Singh, Deep Singh and Hamir Singh in their statements before the police and now they have tried to explain this omission by saying that they had mentioned the name of the father of the accused before the police but the police may not have recorded the same. On a first look, this improvement appears to be material but on a careful consideration we find that it cannot be said to be an improvement at all looking to the status of the witnesses and the manner in which this question cropped up before them. As already stated above, there are only two Narpat Singh; Narpat Singh s/o Devi Singh and Narpat Singh s/o Gulab Singh in village Vishala. We have already stated above that Narpat Singh s/o Gulab Singh could not have been the culprit and, therefore, when Narpat Singh was referred to by these witnesses in their statements before the police, it could be only Narpat Singh s/o Devi Singh. The witnesses must have had the parentage of Narpat Singh in their mind and, therefore, they may have been under the impression that when they had stated the name of Narpat Singh they had meant to state Narpat Singh s/o Devi Singh. They may not have actually stated so but now when they have been cross-examined in this respect, they may have explained their position by saying that they had stated the parentage of the accused. It will also not be out of place to mention here that when Derawar Singh P.W. 1 came in the witness box, a simple question was asked to him whether there is a person by the name of Narpat Singh s/o Gulab Singh in village Vishala and he denied his knowledge about it. The prosecution and the learned counsel for the defence did not suggest even at that stage that Narpat Singh s/o Gulab Singh or any other Narpat Singh except the accused could be involved in this incident. When the prosecution witnesses who came later found that probably the defence was likely to create confusion on account of the absence of the name of the father of the accused in the first information report and their statements before the police, they may have out of over enthusiarn, come out with the above explanation and in these circumstances, in our opinion, much capital cannot be made out of this and it cannot be said that the witnesses have designedly made this improvement with an ulterior motive. Added to it is the fact that the incident had taken place in day light. The accused was a resident of the village itself and close relation of the deceased as well as Loon Singh. He must also be very well known to Durga as he was also the ‘vazir’ belonging to the same village. Therefore, there could not be any chance of mistaken identity. It also does not stand to reason that in these circumstances the witnesses would have left out the real culprit and would falsely implicate the present accused Narpat Singh merely on account of the dispute regarding flow of water. It may also be mentioned that this dispute could be a motive for the accused to kill Hingol Singh who had obstructed the flow of water to his field but could not be a motive for Hingol Singh or for the other witnesses to falsely implicate him.
8. It was also urged by the learned Counsel for the appellant that Loon Singh and Durga could not have identified the accused at the spot between Loon Singh says that he had first the gun fire and then saw the accused running. So also is the statement of Durga who says that he had first seen the accused running towards his dhani from a distance of 200 poundas and thus it is possible that they are naming the accused merely on the basis of suspicion. However, we do not find force in this contention. These witnesses do not merely state that they had seen the accused running. According to Loon Singh, he was ahead of the deceased Hingol Singh on the water tank. Hingol Singh was following him holding the rein of the camel and Durga was following Hingol Singh at a distance of about 40 poundas after he had been called by Hingol Singh from his field. In this situation, Durga could have clearly seen the accused firing the gun and thereafter running away and Loon Singh also, being attracted by the report of the gun, must have immediately looked back and saw the accused running after having heard the report of gun. They could, therefore, easily identify the accused. We are, therefore, clearly of the opinion that this contention regarding identity of the accused has been raised only to be rejected.
9. The learned Counsel for the appellant also contended that it appears, the police had also tried to find out the foot prints of the accused at the spot which they would not have ordinarily tried to if the identity of the accused was not in dispute. But to us, this contention also appears to be devoid of force inasmuch as it appears that it was only by way of abundant caution that the police may have done so. We are supported in this conclusion from the fact that at the time of the site inspection, the Investigating Officer had also noted the marks of the wheel of the camel cart at the spot.
10. As regards the testimony of the eyewitnesses Loon Singh and Durga, the contention of the learned Counsel for the appellant was that both these witnesses are not at all reliable. In respect of Loon Singh he urged that he is a boy aged about 12 and is thus a child witness. The oath had not been administered to him by the learned trial court, that by itself goes to show that he was not of a mature understanding and, therefore, no reliance would be placed upon him. We are unable to agree with him. It is true that he is a boy about 12 years of age and oath was not administered to him because according to the learned Sessions Judge, he did not understand the sanctity of oath. But it does not mean that he was not of nature understanding and could not understand the questions and given rational answers. A bare perusal of his whole statement bears it out that he had mature understanding. Then, it was urged that he was a chance witness, inasmuch as he had gone to plough the field for the first time on that day and he admits that he did not know how to plough. He also admits that he missed his school on that day although it was not a holiday. In our opinion, these circumstances do not show that he is a chance witness. On the other hand, from his evidence it appears that his presence at the spot was natural. He says that since the rain had already taken place and it was the right time for cultivation, he had gone to the field with his uncle Hingol Singh on that day and looking to the importance and the opportune time of cultivation he may have thought it proper to miss the school for a day. He may not have known ploughing from before, but could have started the same from that day onwards. It is not in common among the villagers that boys aged 11 or 12 assist in the ploughing operation. Then it was urged that the conduct of both Loon Singh and Durga was unnatural in not talking to each other at the spot. To our mind, this contention also appears to be equally without substance. Both the witnesses had seen the incident, therefore, there was no question of any talk between them. The boy must have been dazed of seeing this incident and must have rushed to his father and other uncle to inform them of this and it was quite natural for Durga to keep watch on and go to the site of Hingol Singh who had fallen injured seriously.
11. Regarding Durga, it was urged that the very presence of this witness at the time of the incident appears to be unnatural and the very fact that he was examined by the police on 13-7-1981 i.e. two days after the incident, strengthens this suspicion and it appears that he has been put forward as a made up eye-witness. It is true that the evidence of this witness was recorded by the police after some delay i.e. on 13-7-1981 but this by itself cannot give rise to an inference that the presence of this witness at the spot was unnatural or improbable. The Investigating officer has come forward with a valid explanation that as he had been busy in recording the statement of Loon Singh and preparing the inquest memo and site inspection note etc. on 12-7-81, he could not record the evidence of Durga on’ that day but recorded it on the very next day. Otherwise also, no adverse inference can be drawn against the prosecution for this late examination, inasmuch as the name of this witness as an eye-witness had already been disclosed much earlier in the report Ex.P.5 as well as Ex.P.12. It may also be mentioned here that the field of this witness is quite nearby to the place of the occurrence about 400 poundas away and according to both Loon Singh as well as this witness while he was working in the field Hingol Singh who passed by it carrying the water tank and the pakhal had called him to come to him and he was followed Hingol Singh at the time this incident took place. Therefore, his presence cannot be open to doubt.
12. It was also urged that by the learned Counsel for the appellant that the name of this witness does not find place either in the site inspection note or the inquest memo and, therefore, it must be presumed that by the time these documents were prepared, the fact that Durga had witnessed this incident was not certain to the knowledge of the investigating Officer. However, according to us, on this count alone, the testimony of this witness cannot be discarded and his presence at the time of the incident cannot be disbelieved. The mere absence of the name of the eyewitness in the inquest report or the site inspection note does not necessarily make the evidence of that witness doubtful unless there are other serious reasons which create doubt about his testimony. It will depend upon facts and circumstances of each particular case, what importance has to be attached to the absence of the name of the eye-witness in these documents. It must, of course, be observed here that it would have been better if the Investigating Officer had mentioned their presence in these documents and had also shown the places from where these two eyewitnesses, namely, Loon Singh and Durga had seen the incident. This would have facilitated the appreciation of the situation better.
13. It was vehemently urged by the learned Counsel for the appellant that this witness had been cross-examined by the public prosecutor himself and thereby it appears that the prosecution itself does not rely upon the testimony of this witness. His evidence must, therefore, be discarded. We have carefully examined this aspect of the matter. It appears that at one time, the Hon’ble Supreme Court had taken the view 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”, as has been observed by his Lordship P. N. Bhagwati, J., as he then was, in Jagir Singh v. The State (Delhi) 1975 SCC (Cri) 129 : (1975 Cri LJ 1009), sitting with his Lordship N. L. Untwalia, J. This view has since then been watered down by the later authorities of the Hon’ble Supreme Court in some of which these two Hon’ble Judges were parties to the judgment, e.g. Sat Paul v. Delhi Administration 1976 SCC (Cri) 160 : (1976 Cri LJ 295) in which the leading judgment was of Hon’ble Justice R. S. Sarkaria and Hon’ble Justice P. N. Bhagwati was sitting with him. In this judgment after referring to Jagir Singh’s case (supra) their Lorsdhips observed as under (at pp. 309, 310 of Cri LJ) :–
“From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should, as a matter of prudence, discard his evidence in toto.
In the light of the above principles, it will be seen that, in law, part of the evidence of the panch witnesses who were thoroughly cross-examined and contradicted with their inconsistent police statements by the Public Prosecutor could not be used or availed of by the prosecution to support its case. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-examination, their credit was substantially, if not wholly, shaken. It was, therefore, not proper for the courts below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses.”
And in para 53 it was observed that it was in the peculiar context of the cross-examination of the public prosecutor that the prosecution witness concerned stood discredited altogether, and it was further clarified that (at p. 309 of Cri LJ) :–
“It was in the context of such a case, where, as a result of the cross-examination by the Public Prosecutor, the prosecution witness concerned stood discredited altogether that this Court in Jagir Singh v. State (Delhi Administration) (1975 Cri LJ 1009) (SC) (supra), with the aforesaid rule of caution — which is not to be treated as a rule of law–in mind, said that the evidence of such a witness is to be rejected en bloc.”
14. Then in Bhagwan Singh v. The State of Haryana, 1976 SCC (Cri) 7 : (1976 Cri LJ 203), to which both Hon’ble Justice P.N. Bhagwati and Hon’ble Justice Untwalia were members along with Hon’ble Justice P. K. Goswami, it was observed by his Lordship Goswami on behalf of the Court as under (at p. 205 of Cri LJ) :–
“But the fact that the court gave permission to the prosecution to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.”
14A. Again in Sri Rabindra Kumar Dey v. State of Orissa, 1976 SCC (Cri) 566 : (1977 Cri LJ 173), relying upon Bhagwan Singh’s case (1976 Cri LJ 203) (SC) (supra), it was reiterated as under (at p. 181 of Cri LJ):–
“It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether.”
Thus we are clearly of the opinion that Durga cannot be discarded altogether merely on the ground that he had been permitted to be cross-examined by the public prosecutor although he was a prosecution witness and if his evidence otherwise appears to be reliable and trustworthy, he can be relied upon. On a careful perusal of his evidence, we are further of the opinion that as a matter of fact, the learned public prosecutor need not have cross-examined him at all. It was probably due to some confusion or misapprehension that he went against a part of his police statement but as soon as his attention was drawn to that statement he corrected himself and adhered to that statement. It, therefore, cannot be said that the witness was trying to resile from his previous statement or was trying to put forward a version other than that he was supposed to state before the court. His evidence is fully corroborated by the evidence of Loon Singh, whose testimony we have already referred to above.
15. It was also contended by the learned Counsel for the appellant that the testimony of this witness should be discarded on the ground that his conduct was unnatural, inasmuch as he did not state the facts seen by him to any other witnesses, namely, Deep Singh, Bhoor Singh and Hamir Singh etc. According to us, this contention is a little misconceived and appears to be based on reading a part of the statement of this witness diverting it from the context in which that statement was made. The learned Counsel for the appellant drew our attention to the part of the statement of Durga, where he had stated :
^^pw¡fd esjs tkus ij fQj yw.kflag vk x;k Fkk
vkSj mlds ckn esa gehjflag oxSjk vk x;s Fks blfy, fdlh dks ckr ugha dghA**
From it, the learned Counsel wants us to infer that Durga did not narrate the incident to Hamir Singh and other persons who came along with him but this does not appear to be the meaning of this part of the sentence. This sentence is preceded by the words–
^^vklikl esa dqEgkjksa vkSj eksghyks ds [ksr
Fks vkSj mlesa yksx gy [kM jgs FksA djhc 400 ikaoMk dh nwjh ij yksx gy [kM jgs
FksA**
If it is read in context with this part, it would clearly mean that the witness did not think it necessary to talk to those persons who were working in the fields about 400 poundas away and not that he did not narrate the story of Hamir Singh etc.
16. Thus, according to us, both these eyewitnesses can be relied upon and their statements clearly go to show that it was the accused who had fired at the deceased Hingol Singh.
17. The evidence of these witnesses is also sought to be corroborated by the fact that the deceased himself had stated in the oral dying declaration that Narpat Singh had fired at him and injured him. This dying declaration is said to have been made in the presence of Loon Singh and Durga, the eye-witnesses, as also P.W. 2 Bhoor Singh, P.W. 8 Deep Singh and P.W. 15 Hamir Singh, who had reached the spot along with Aasha and Wala and in that dying declaration he had clearly stated that it was Narpat Singh who had fired at him and injured him. However, this dying declaration is also challenged by the learned Counsel for the appellant on various grounds. His first submission is that as a matter of fact, the deceased could not have made this dying declaration at all after Bhoor Singh, Deep Singh and Hamir Singh etc. had reached the spot because he should have either succumbed to the injuries immediately after receiving the same or would have become unconscious and could not have made this dying delcaration when Hamir Singh etc. reached there. It is also pointed out that these persons could not have reached the spot before at least 45 minutes or an hour. In this connection, he pointed out that Dr. G. K. Vyas had stated that after receiving such injuries, the deceased must have gone in shock within 15 to 20 minutes and within about half an hour of the receipt of the injuries, ordinarily, he does not remain in a position to speak and would die within about 10 to 12 minutes after losing such consciousness. He also pointed out that the place from where these witnesses reached the spot was about more than a mile away from the spot. Loon Singh must have taken time to reach the place where these witnesses were and thereafter these witnesses would have also taken sufficient time to reach the spot. We have carefully considered this aspect of the matter. A careful perusal of the statement of Dr. G. K. Vyas would go to show that after receiving such injuries the deceased must have been in a position to speak till about 45 or 50 minutes of the receipt of the injuries. So far as the distance between the place from where the witnesses came and the spot goes, it has been stated by P.W. 2 Bhoor Singh to be 1000-1500 poundas away. P.W. 8 Deep Singh states it to be about 300 poundas. P.W. 15 Hamir Singh states it to be about 700-800 poundas. Therefore, the maximum distance which can be said to be between the place from where these witnesses came and the spot is about 1000 or 1500 poundas, i.e. less than a mile. Loon Singh says that he had gone running from the spot to his father and Deep Singh Bhoor Singh etc. also say that after receiving this information from Loon Singh, they came rushing to the spot and Hamir Singh had followed them on a mare back. This would, therefore, not have taken them more than 20 or 30 minutes in all and, therefore, the deceased must have been in a position to make a statement before them. We, therefore, cannot accept this contention of the learned Counsel for the appellant that this dying declaration could not be possible to have been made by the deceased after these persons reached the spot.
18. The learned Counsel also lays much stress on the fact that the deceased did not name the father of the accused in his dying declaration as has been stated by these witnesses before the police but now these witnesses state that deceased had named the father of the accused also in the dying declaration. We have already discussed the question about the dispute about identity of the accused and the improvement made by the witnesses in this respect in their police statements and we need not repeat the same here. Even if for the sake of argument it is accepted that the deceased did not name the father of the accused in his dying declaration there could not be any manner of doubt that he meant to implicate the present accused and none else.
19. Next, it was urged by the learned Counsel for the appellant that Loon Singh does not appear to have gone back to the spot and, therefore, he could not have been present at the time this dying declaration was made but he still deposes to the fact of the dying declaration being made in his presence. The contention is devoid of force inasmuch as it is clear from the material on record that Loon Singh had certainly come back to the spot after informing his father etc. This will be borne out from the last sentence of his examination in chief where after referring to the coming of Deep Singh, Bhoor Singh, Hamir Singh etc. to the spot and the dying declaration being made by the deceased, he further says that thereafter he left the place taking the camel with him. In this connection, the learned counsel also pointed out that the other witnesses do not refer to the presence of Loon Singh at that time but in our opinion such a reference was not at all necessary when the witnesses had not been questioned about Loon Singh’s presence at that time. On the other hand, certain questions were put to Loon Singh assuming his presence at the spot, e.g., a question appears to have been put to Loon Singh as to how Hingol Singh made the dying declaration and on that he replied that his father had asked Hingol Singh as to what had happened and then Hingol Singh narrated the incident. No cross-examination was directed against this witness or any other witness regarding the presence of Loon Singh at that time.
20. Then it was urged by the learned Counsel that Aashu and Wala, who were independent witnesses and who were alleged to have come to the spot along with Deep Singh, Bhoor Singh Hamir Singh etc., have not been produced by the prosecution and, therefore, an adverse inference should be drawn against it to the effect that as a matter of fact no such dying declaration was made in the presence of these witnesses. We are sorry, we are not in a position to accept this contention either. It is not always necessary for the prosecution to examine all the witnesses in respect of a particular fact. If the prosecution story is fully disclosed by the witnesses already produced, no inference can be drawn against it for not producing some other persons who could also depose to the same facts and unnecessary repetition can always be avoided. Now, when the dying declaration has been deposed to by Deep Singh, Bhoor Singh, Hamir Singh and Durga, Aasha and Wala need not have been examined for establishing the same. Deep Singh, Bhoor Singh and Loon Singh being closely related to the deceased, may appear to be interested witnesses but Hamir Singh appears to be a person who is almost equally related to the deceased and the accused, therefore, he can be deemed to be an independent witness, so also is the case of Durga. He has not been shown to be in any way interested in the prosecution or against the accused. Therefore, prosecution cannot be accused of not producing independent witness or producing only interested witnesses.
21. Yet another attack on this dying declaration made by the learned Counsel is that none of these witnesses have stated the exact words of the deceased in which the dying declaration was made and different witnesses give different versions about the same. Hamir Singh has stated that the deceased had also told these persons to arrange for conveyance for carrying him to the hospital and reporting the matter to the police, whereas the other witnesses are silent in this respect. The contention cannot be accepted for the simple reason that it is almost improbable, if not impossible for the witnesses to remember the exact words of the deceased after lapse of almost a year. However, they have remembered the essential part of the version given by the deceased at the time when he was in the agony of death. It may be that the deceased may have also asked for arranging for conveyance to carry him to the hospital and to inform the police. Hamir Singh, who had gone in search of conveyance and had also gone to the police, must have remembered this fact, whereas the other witnesses may not have paid much attention to this part of the statement of the deceased. Therefore, on this ground, the dying declaration cannot be discarded. We are, therefore, clearly of the opinion that this dying declaration made by the deceased has clearly been established because, according to us, the deceased was in a position to make this dying declaration at the alleged time, the statements of these witnesses do show that he did in fact make such a statement and although he had not named the father of the accused, he did mean the accused Narpat Singh s/o Devi Singh as a culprit and we do not find any reason to discard this dying declaration.
22. The learned trial Court has relied upon the recovery of the gun and the empties and the learned counsel for the appellant has challenged that finding. We may at once state that after having gone through the evidence in this respect, we are clearly of the opinion, that this recovery is of no avail to the prosecution and, therefore, we need not go into this aspect of the matter in detail but it would be sufficient to say that the gun recovered belonged not to the accused but to his father and was recovered from the house of his father, which was not in the exclusive possession of the accused. Three empties have been recovered, out of which two were said to be in the bandoleer which was recovered from the house of the father of the accused and it is nobody’s case that these two empties were in any way connected with this crime. A third empty is said to have been recovered from near the site in pursuance of the information said to have been given by the accused and at his instance. The evidence in this respect is wholly discrepant. P. W. 10 Gulab Singh says that this empty was recovered at a distance of about 3-31/2 miles from Vishala and was found lying buried about 3 or 4 cubic deep whereas the Investigating Officer Ram Swaroop states that it was from a place 100 poundas away from the place of incident that the empty was taken out by the accused after digging the earth a little and the recovery memo shows that the earth was dug about 4 inches deep, at a place about 100 poundas away from the dhani of Narpat Singh. Apart from this discrepancy, the very fact that the accused would have thus hidden the empty whole fleeing from the spot, appears to be whoolly unnatural and in these circumstances we are not going to place any reliance upon this recovery.
23. However, even if this recovery is left out of consideration, we are fully convinced with the evidence of the two-eye-witnesses Loon Singh and Durga corroborated by the dying declaration of the deceased that it was the accused Narpat Singh s/ o Devi Singh who had caused the injuries to the deceased by firing a gun at him.
24. Dr. G. K. Vyas, P. W. 7, has described the injuries on the person of the deceased in the post-mortem report Ex.P. 7, as under:–
“Injuries external:
Abrasion 1/4″ x 1/10″ (dark red scab) on mid of lateral of Rt. Arm.
1. Irregular punctures wounds and abrasion spots about 15 over the outer of Rt. elbow and postero lateral of upper 1/2 of Rt. forearm. Size varies from pin head to 0.3″ x 0.3″ bleeding and clot over and around the area (dried). Extravasation of blood ‘clot in subcutaneous area and muscles — small injury spots, over the muscles under the injuries. One pallet was removed from the forearm.
2. Multiple irregular punctures wounds c abrasions covered with blood (dried over the Rt. side of chest and abdomen in posterior exillary area extending to Rt. Hypochondria as shown in figure-Big punctures 3-4 on the 6th and 7th and 8th ribs on lower part of Rt. of chest and abdomen measuring 3/4″ x 1/2″ present. Often varying from pin poin to 0.2 x 0.2″ size.
Deeper Section :
Extra vascular of blood (clots) present above the subcutaneous area below the punctures with corresponding small lacerating and punctures of underlying muscles.
6th, 7th and 8th ribs below the area are fractures. There is big gap 1″ x 1″ in the 7th intercostal space created by fractures ribs the florid which is favoured c lacerated liver.
Liver : 3 Laceration of the liver
(1) Biggest below the above hole 3/4″ x 1/2 going deep though liver in its Rt. lobe Rt. surface.
(2) Laceration 1/2″ x 1/2″ 1″ above the fist
(3) Laceration 1/2″ x 1/2″ over the under surface of Rt. Lobe present going deep in the substance (sic) bathed c blood and clots Injury to (sic) in present with bleeding.”
He has further stated that cause of death was sudden and excessive haemorrhage due to liver injury caused by pellets of gun and when re-examined by the court on 16-3-82, he stated that the injuries were sufficient in the ordinary course of nature to cause death and specially the injury to the liver was so sufficient. Therefore, there is no room for doubt that the accused either wanted to cause the death of Hingol Singh or in any case intended to inflict such injury which was sufficient in the ordinary course of nature to cause death. Therefore, his conviction under Section 302, I.P.C. appears to be quite proper.
25. So far as his conviction under Section 27 Arms Act is concerned, although it has not clearly been established that the injuries had been caused to Hingol Singh by the gun recovered in this case but there is no room for doubt that the accused had used a fire arm for causing these injuries. Therefore, his conviction under this section also appears to be proper.
26. The result, therefore, is that this appeal is without any substance and is hereby dismissed.
27. Since the gun has not been connected with the crime in this case, it may be returned to the person who holds the valid licence for it.