JUDGMENT
V.N. Singh, J.
1. This appeal has been filed against the order dated 21-3-1980 passed by the then Vth District and Sessions Judge, Budaun, by which, he convicted and sentenced appellant Ompal Singh to undergo rigorous imprisonment for life under Section 302, I.P.C. in Sessions Trial-No. 444 of 1978.
2. Brief facts of the case are that, Ram Prakash lodged a report on 11-6-1978 at 18.10 p.m. at police station Bisauli District Budaun which was registered at crime No. 215 of 1978 under Section 307, I.P.C. that today on 11-6-1978 he had gone to F.C.I. Godown in village Ehroli in connection with the purchase of food grains. He was coming from F.C.I. godown along with Rishipal, Ravindra Pal Singh and Rambir Singh. At about 3.30 p.m. when they reached near culvert of the southern Tube Well of Laluwa Nagla, accused Ompal Singh armed with double barrel gun came by Yezdi Motor Cycle and stopped the Motor Cycle and fired on Rishipal with intention to kill him. Rishipal fell down after receiving the injuries and accused Ompal Singh ran away after leaving the Motor Cycle on the spot. They did not chase accused Ompal Singh due to fear. Ompal Singh has enmity with the injured Rishipal. Two or three years back at platform Dabtori, altercation took place between Omphal Singh and Rishipal in connection with the contract of liquor, in which, Ompal Singh received injuries. After some time in the incident of theft in the shop of injured Rishipal, Ompal Singh was named by Rishipal thus Ompal Singh had strong motive to kill Rishipal. Three or four days prior to this incident, Ompal surrounded Rishipal with intention to kill him.
3. Ram Prakash and others carried Rishipal by a bullock cart to Davtra. Report in writing was prepared by Ram Prakash then he proceeded to police station Bisauli. Ram Prakash reached the police station Bisauli on 11-6-1978 at 6.10 p.m. and lodged the written report. Head Constable Irshad Ahmad Kan prepared the F.I.R. (Ex. Ka.4) and entry was made in the G.D. Clothes of injured Rishipal were taken into custody and memo was prepared.
4. Rishipal was sent to Bisauli Hospital for medical examination. As Doctor was on leave, injured could not be examined at Bisauli Hospital, Information was sent by the Pharmacist to the Tehsildar/Magistrate for recording the dying declaration of injured Rishipal. Dying declaration of Rishipal, injured was recorded by Shri Bipin Behari Kharey, Tehsildar/Magistrate, Bisauli, Rishipal was sent to District Hospital, Budaun for medical examination after the dying declaration was recorded at Bisauli Hospital.
5. Rishipal, injured was medically examined by Dr. V.P. Kulshrestha on 11-6-1978 at 8.30 pm. and the following gun shot injuries were found on his person :
1. Gun shot wound of entry 0.2 cm. x muscle deep on right shoulder front (total two in number in number, no blackening and tattooing) injury kept under observation.
2. Multiple gun shot wounds of entries in an area of 22 cm. x 17 cm. on front of chest both sides (total number 15) No blackening and tattooing. Injury kept under observation.
3. Multiple gun shot wounds of entry in an area of 22 cm. x 21 cm. on front of abdomen (total number 9) Injury kept under observation.
4. Multiple gun shot wounds of entry in an area of 13.5 cm. right upper arm front and lateral aspect (total number 6) extending up to elbow. Injury kept under observation.
5. 4 gunshot wounds of entry on dorsum of right hand. Injury kept under observation.
6. Seven gun shot wounds of entry on front of right thigh upper 1/3rd Injury kept under observation.
7. Gun shot wounds of entry in an area 5 x 22 cm. on right upper arm front to medical aspect of left upper arm.
6. Injury report of injured Rishipal is Ex. Ka. 8.
7. S.I. Shri Hawaldar Singh, started investigation and recorded the statement of Head Constable Irshad Ahmad Khan. Thereafter he proceeded to Hospital and recorded the statements of injured Rishipal. Ram Prakash, complainant, Rambir and Ravinder Singh, eye witnesses. He also recorded the statement of Shreepal there.
8. The investigating officer inspected the site in presence of the complainant Ram Prakash and prepared the site plan, Ex. Ka 12. The Investigating Officer also found Yezdi Motor Cycle and other articles on the spot and he took the motor cycle and other article in possession and prepared seizure memo Ex. Ka 13. Investigating Officer also collected blood stained and simple earth and wads from the spot and prepared the written memo Ex. Ka. 14.
9. Rishipal, injured died on 11-6-1978 at about 9.40 pm. at District Hospital, Budaun. Report was sent to the police station Kotwali, Budaun which was received at the police station Kotwali at 10.30 pm. On receipt of the information S.I.B.D Sharma proceeded to mortuary, Budaun and prepared inquest and other papers. He received the dead body and sent the same through constable Harbir Singh and Rajbir Singh on 12-6-1978 at 9.30 a.m. for post mortem examination.
10. Dr. A.K. Tiwari, PW 10 conducted post mortem on the dead body of Rishipal on 12-6-1978 at 4 pm. and found the following ante mortem injuries on his person :
1. Multiple gun shot wounds of entry (fifteen) each measuring 0.25 cm. x 0.25 cm. roughly circular on both sides of chest (5 on the left and 10 on the right side).
2. Multiple gun shot wounds of entry (3) in number measuring 0.25 cm. x 0.25 cm. roughly circular on the front of the abdomen.
3. Multiple gun shot wounds of entry (3) in number measuring 0.25 cm. x 0.25 cm. roughly circular on the front of the right shoulder.
4. Multiple gun shot wounds of entry (6) in number each measuring 0.25 cm. x 0.25 cm. roughly circular on the front and the side of right upper arm.
5. Two gun short wounds of entry 0.25 cm. x 0.25 cm. roughly circular on the palm of the right hand (one near the base of thumb)
6. Multiple gun shot wounds of entry (7) in number each measuring 0.25 cm. x 0.25 cm. roughly circular on the front of the upper part of right thigh.
7. Multiple gun shot wounds of entry (3) three in number on the front and side of the left thigh upper part each measuring 0.25 cm x 0.25 cm. roughly circular.
8. One gun shot wound of entry 0.25 cm. x 0.25 cm. roughly circular on the medial side of the middle of the upper arm.
9. One gun shot wound of entry 0.25 cm. x 0.25 cm. roughly circular on the outer side of the left side of neck.
11. Post mortem report of the deceased Rishipal is Ex. Ka. 23.
12. After receipt of the information regarding death of injured Rishipal through constable Harishankar, the case was altered under Section 302, I.P.C. vide G.D. entry (Ex.Ka. 6). S.I. Hawaldar Singh, the investigating officer recorded the statements of witnesses of inquest report.
13. Subsequently investigation was done by Inspector Chandra Mohan Dikshit. Shri Dikishit sent the articles for chemical examination to the Chemical Examiner. Report of the Chemical Examiner is Ex. Ka.24.
14. After completion of the investigation Shri Dikshit submitted charge sheet against accused Ompal Singh Ex. Ka. 15.
15. Prosecution examined 10 witnesses in all before the trial Court. They were, namely.
P.W 1, Dr. Chandan Singh Verma, medical officer, Bisaulit. He proved the endorsement of compounder that medical officer is on leave and injured referred to the District Hospital , Budaun;
P.W. 2, Ram Prakash, in first information and an eye witness of the incident;
P.W. 3. Ravindar Pal Singh, an eye witness of the incident.
P.W. 4 Irshad Ahmad Khan, Head Constable.
P.W. 5 Dr. V.P. Kulshreshta, who examined the injured Rishipal;
P.W. 6 Bipin Behari, Tehsildar/ Magistrate, who recorded the dying declaration of Rishipal.
P.W. 7 S.I. Hawaldar Singh, who conducted the investigation of the incident. P.W. 8 Sangram Singh;
P.W. 9 B.D. Sharma; and
P.W. 10 Dr. A.K. Tewari, who conducted autopsy on the dead body of Rishipal.
16. Accused Ompal gave the statement under Section 313, Cr.P.C. and pleaded not guilty and alleged that he has been falsely implicated due to enmity. He also stated that Shreepal took Yezdi Motor Cycle along with other articles in his absence from his Baithak. He admitted that he is a licensee of gun. He also alleged that report is ante timed and statement of Rishipal is fictitious.
17. Accused examined constable Surendar Singh (D.W. 1) and filed report (Ext. Kha 1) and application (Ext. Kha 2) in defence.
18. From perusal of the record it is clear that although Dr. V.P. Kulshreshta has mentioned only seven injuries on the body of the deceased, Rishipal while in the post mortem report of Rishipal nine injuries have been mentioned. Dr. V.P. Kulshreshtha has admitted in cross examination that he missed injury No. 9 mentioned in the post mortem report but as he has mentioned only 7 injuries while there are 9 injuries on the body of the deceased Rishipal as per post mortem report it is also clear that injury No. 7 mentioned in the post mortem report which is on the left thigh of the deceased has not been mentioned by Dr. Kulshreshtha.
19. Heard learned counsel for the appellant and the learned A.G.A. for the State.
20. Argument of the learned counsel for the appellant is that injury Nos. 4 and 9 are not possible by one shot. In this connection attention of the Court has been drawn towards the statement of Dr. V.P. Kulshreshtha who stated in cross examination that, injury No. 4 was on the lateral aspect and injury No. 9 of the deceased mentioned in the post mortem report are not likely by single shot.
21. It has been argued by learned counsel for the appellant that injury No. 9 shown in the post mortem report is towards left outer side of the neck as such. Considering the total injuries, injury No. 9 is not possible by one shot.
22. So far as Dr. V.P. Kulshreshtha is concerned he has admitted that he is not ballistic expert.
23. This question was put to Dr. A.K. Tewari also who conducted the post mortem examination, he deposed that, as he is not a ballistic expert hence he is not in a position to say, whether injuries were received by one or by more than one shot.
24. So far as the conduct of Dr. V.P. Kulshreshtha is concerned it is clear that he has not mentioned injury No. 7 shown in the post mortem report which is on the left thigh and injury No. 9 which is on left side of neck.
25. From perusal of the post mortem report it is clear that there was multiple gun shot injuries towards left chest and right chest both sides.
26. From perusal of injury No. 7 mentioned in the post mortem report it is clear that there were multiple gun shot wounds of entry on the left thigh towards outer side.
27. So far as injury No. 9 is concerned, it is on the left side of the neck towards outer side.
28. In this way it is clear that the deceased had received injury towards left side of his body also.
29. Injury No. 9 mentioned in the post mortem report is possible by one gun shot if the face of the deceased was towards right side at the time of receipt of injury.
30. In such circumstances it cannot be said that injuries on the body of the deceased are not possible by one shot.
31. So far as statement of Dr. V.P. Kulshreshtha is concerned he has not mentioned injury No. 7 received on the left side and injury No. 9 received on the left side of the neck. He has admitted that he is not Ballistic expert while Dr. A.K. Tewari did not support the version of Dr. Kulshreshta and j stated that as he is not a Ballistic expert, hence he is not in a position to say whether these injuries were received through one shot or more than one shot.
32. Statement of Dr. Kulshreshtha that the injuries were not possible by one shot is only his personal opinion and that cannot be a conclusive evidence.
33. All the eye witnesses PW 2, Ram Prakash and PW 3 Ravindar Pal Singh had stated that accused Ompal Singh fired only one shot and that deceased Rishpal received only one gun shot.
34. It has been settled by several decisions that, eye witnesses should be believed instead of the statement of doctor, which is only his personal opinion. In such circumstances the argument of learned counsel for the appellant has no force.
35. It has been argued by learned counsel for the appellant that deceased would not have been in position to give the statement after receiving the injuries mentioned on his body as such dying declaration is forged.
36. In this connection attention of the Court has been drawn towards the statement of Dr. A.K. Tewari who conducted the post mortem examination. He deposed that, in view of lungs injury, Heart injury and the injuries of the intestines and nature of the injuries of deceased he is of the personal opinion that, probably the deceased might have been in a position to give the statement.
37. Dr. A.K. Tewari has, however, admitted that it is difficult to assess whether any person was in a position to give the statement after receiving such injuries, because it differs from person to person. Besides it, pharmacist has given certificate at the foot of the dying declaration recorded by Shri Bipin Kharey, Tehsildar/Magistrate that, injured person was in sense when the statement was recorded by the Magistrate.
38. Besides it, Tehsildar/Magistrate, Kharey has stated on oath that Pharmacist informed him that Rishipal is in a fit condition to give the statement. In cross examination again he stated that when he was informed that, injured is in a fit condition to give the statement then he started recording his statement. He also deposed that, although Rishipal was feeling pain but he was not restless. He again deposed that he did not inquire from Rishipal regarding his mental condition as he was satisfied that Rishipal is in a position to give the statement. He proved the dying declaration.
39. Besides it, complainant, eye witness Ram Prakash also deposed that in the Bisauli Hospital, statement of Rishipal was recorded by Tehsildar/Magistrate. He also stated that , Rishipal directed him to prepare the written report then he prepared the written report. He also deposed that, he inquired from the Rishipal whether report should be written on his behalf or report should be written on behalf of witnesses. Ravindar Pal Singh, an eye witness has also stated that statement of Rishipal Singh was recorded by Tehsildar/Magistrate.
40. Besides it, Irshad Ahmad Khan, Head Constable has stated that in the G.D. No. 29 of or in Chitthi Majroobi, he has not mentioned that Rishipal was in sense. He further stated that, if injured is brought in unconscious stage at the police station then only he mentions in the G.D. that, injured has been brought in unconscious stage.
41. S.I. Hawaldar Singh, the investigating officer has also stated that, he also recorded the statement of Rishipal injured. He has proved the statement, Ex. Ka. 11.
42. Besides it, Dr. V.K. Kulshreshtha has mentioned in his medical report that, injured was in a conscious state. As per report of the Doctor, injured was admitted in the Hospital, but his bed head ticket has not been summoned by the accused to prove that deceased was in unconscious state when he was admitted in the Hospital. Injured deceased remained alive up to 9.40 p.m. In such circumstances, it cannot be said that deceased Rishipal was not in a position to give the statement and dying declaration is a fabricated document. It is unthinkable that for no rhyme or reason the Magistrate would conspire to fabricate a document in the form of dying declaration of the deceased putting his service at stake.
43. It has been argued by learned counsel for the appellant that, F.I.R. is ante timed.
44. Incident took place on 11-6-1978 at about 3.30 p.m. while the report was lodged on the same day at 6.10 p.m. at the police station Bisauli, Besides it, Tehsildar Bipin Behari Kharey has stated that dying declaration of the deceased was recorded at 6.45 p.m. Moreover time noted at the foot of the dying declaration also is 6.45 p.m.
45. Besides it, injured was medically examined by Dr. V.K. Kulshreshtha at 8.30 p.m. on 11-6-1978.
46. In this connection, attention of the Court has been drawn towards the Chitthi Majroobi in which, crime number, sections and name of the accused have not been mentioned. In this connection attention of the Court has also been drawn by the learned counsel for the appellant that after lodging of the F.I.R. no case, cognizable or non cognizable, was registered at the police station Bisauli but this does not affect prosecution case.
47. Accused has admitted the ownership of the Motor Cycle in dispute . According to the statement of Investigating Officer and complainant Motor Cycle was recovered from the place of occurrence. In this connection, accused has given statement that his Motor Cycle was taken by Shreepal from his Baithaka, but when and at what time it was taken and in whose presence it was taken and while Shri Pal was carrying the Motor Cycle, who saw him have not been mentioned by the accused nor any evidence was given by the accused in this connection to prove his statement that, his Motor Cycle was carried by Shreepal from his Baithaka. As such the statement of accused cannot be believed and recovery of the Motor Cycle owned by the accused at the spot has been established from the evidence on record. This is a strong circumstance going against the accused.
48. Besides it blood stained earth and two wads were recovered on 11-6-1978 from the place of occurrence. It also proves the prosecution version.
49. Even the motive suggested in the F.I.R. has been proved by the witnesses.
50. Statement of D.W. 1 Surendra Singh does not support the defence version. Surendra Singh, D.W. 1 proved the lodging of the F.I.R. in non cognizable offence in January, 1979, while the present incident took place in the month of June, 1978 prior to the lodging of the F.I.R.
51. Besides it, complainant, Ram Prakash and Ravindar Singh has supported the prosecution versions and there is no material to disbelieve their evidence.
52. Witness Ram Prakash has stated that about two years back altercation took place between Rishipal and accused Ompal near Davtara Railway Station in connection with the contract of liquor. About one year and six months, prior to the incident back, theft took place in the shop of Rishipal regarding which Rishipal lodged report against accused Ompal. About 3 -4 days prior to the incident near the temple Ompal surrounded Rishipal but he was luckily saved. Accused was annoyed with deceased Rishipal. About 13 months back he had gone to Ahraula Go down in connection with the purchase of food grains. From Galla Godown witness Ram Prakash, deceased Rishipal, Ravindar Pal and Ramveer Singh were going on cycle. When they were about two furlongs from his village at about 250 steps from the Tube Well culvert accused Ompal came by Yezdi Motor Cycle from the side of the village armed with the gun. While he was at a distance of 40 steps from Rishipal he stopped the Motor Cycle. Seeing him Rishipal left his cycle and went towards the western side of the field of Veerpal. Ompal accused came in front of the Rishipal and fired on Rishipal due to which he received injuries. Ompal ran away leaving his Motor Cycle.
53. Witness also deposed that he carried Rishipal from the place of occurrence to Davtara by bullock cart. He prepared written report at Davtara which is Ex. Ka. 2. Alongwith Rishipal and written report he went to police station Davtara and produced written report Ex. Ka 2. From police station Rishipal was sent to Bisauli Hospital. No doctor was available in the Bisauli Hospital on that day. Statement of Rishipal was recorded by Tehsildar in Bisauli Hospital. From Bisauli he was sent to Budaun for treatment where he died.
54. In the cross-examination witness deposed that it is incorrect to say that prior to the incident altercation took place with accused Ompal. It is also incorrect to say that written report was prepared by Shreepal son of Hakim Singh. It is incorrect to say that in absence of the accused Motor Cycle of the accused were brought by Shreepal from Chaupal of the accused. It is incorrect to say that witness Ramveer and Ravindar Pal belongs to the party of Shreepal. In the cross examination it is also deposed that it is incorrect to say that at the time of preparation of the report he had intention to write 2.30 p.m. time of the incident, later on he changed the time of occurrence at 3.30 p.m. and substituted 3 in place of 2. In this way it is clear that witness Ram Prakash has supported the prosecution version.
55. Ravindar Pal witness has deposed that accused Ompal has Yezdi Motor Cycle and Double Barrel Gun. Relation between Ompal and Rishipal were not good. Litigation was pending in Bareilly regarding Marpeet at the shop of liquor. Ompal was suspected by Rishipal regarding theft committed at the shop of Rishipal. Ompal surrounded Rishipal with intention to kill 2-3 days back from the date of incident but luckily he was saved.
56. About 13 months back witness Ravindar Pal, Rashipal, Ram Prakash and Ram Veer were going to village Laluwa Nagla by cycles from the Galla Godown. They were at a distance of one and half furlongs from his village. Accused Ompal came by his Motor Cycle from the side of village armed with Double Barrel Gun. Ompal stopped the Motor Cycle at a distance of 30-35 steps from Rishipal. When Rishipal saw that Ompal has stopped the Motor Cycle he left his cycle and went towards the field of Veer Pal. Ompal accused also went to the field of Veer Pal and fired on Rishipal. Rishipal received injuries and fell down. After firing Ompal leaving Motor Cycle went towards western side. They came to Davtara police station by bullock cart along with Rishipal Singh injured. From Davtara they carried Rishipal to Bisauli Hospital. Ram Prakash prepared the written report. They carried the injured to police station. Ram Prakash produced the written report in the police station. Rishipal was brought to the Government Hospital in front of the police station but no doctor was available. Tehsildar Bisauli recorded the statement of Rishipal in the Hospital. From there Rishipal was sent for treatment to Sadar Hospital Budaun where he was examined and died after one and half hours.
57. In the cross examination witness deposed that accused Ompal fired single shot on Rishipal. He further deposed that it is incorrect to say that witness Ravindar Pal and Ram Prakash were not present at the time of incident in the village and they were outside the village and later on they came to Bisauli and became witnesses. It is also incorrect to say that Shreepal son of Hakim carried Rishipal to Bisauli Hospital and due to enmity he is telling lie. In this way this witness has also corroborated the prosecution story.
58. Witness Ram Prakash and Ravindar Pal has supported the prosecution version and supported the statement of each other.
59. From the cross examination it is clear that there is no material to disbelieve their evidence.
60. According to the Chemical Examiner there were bloodstains on the articles.
61. It is a day light occurrence and it has taken place at about 3.30 pm. and there is no question of non identification of the accused by the witnesses.
62. Only on the ground of minor contradictions occurring in the evidence of the witnesses, it cannot be said that prosecution case is false.
63. Considering the above facts and circumstances the Court is of the opinion that the prosecution succeeded in establishing the guilt of accused appellant Ompal Singh for the offences punishable under Section 302, I.P.C. for murdering Rishipal beyond reasonable doubt.
64. The conviction and sentence of the appellant-Ompal Singh are confirmed and the appeal preferred by him is, accordingly, dismissed. Appellant is on bail. He shall forthwith surrender before the C.J.M. Budaun to serve out the sentences. The C.J.M. Budaun is also directed to secure arrest of the appellant Ompal Singh by issuing non bailable warrants and send him to jail to serve out the sentence and submit compliance report within a month.
Office is directed to send a copy of this order to C.J.M. Budaun for information and necessary action.