Om Pal Singh vs State Of U.P

10 any certificate from a doctor that the deceased was in a

fit state to make a statement. The statement has been

recorded only because the pharmacist posted at the

hospital at the relevant time had stated that the injured

was in a fit state to give a statement.

11. In support of the submission, the learned counsel

relied on two judgments of this Court viz., Laxman Vs.

State of Maharashtra1 and Kanti Lal Vs. State of

Rajasthan2. Summing up his submissions, the learned

counsel submitted that there is hardly any evidence

either ocular or medical to connect the appellant with the

murder. There is no clear evidence of any previous

enmity between the appellant and the deceased.

12. Learned counsel for the State of U.P. submitted that

there is clear evidence of rivalry between the appellant 1 (2002) 6 SCC 710 2 (2009) 12 SCC 498

11 and the deceased. He also submitted that in view of the

eye-witness evidence of PW-2 and PW-3, motive even

though proved in this case, was not necessary to be

proved. Learned counsel further submitted that

PW-2 and PW-3 belong to the same village, therefore,

there was no reason for them to falsely implicate the

appellant. The dying declaration, according to the

learned counsel, is clear, cogent and has been rightly

relied upon by the trial court as well as the High Court.

It has been duly recorded by the Magistrate after

observing all necessary legal formalities.

13. We have considered the submissions made by the

learned counsel. The trial court as well as the High

Court, upon consideration of the entire ocular evidence

have concluded that both PW-2 and PW-3 have given a

consistent version of the various incidents narrated

above, which precipitated the enmity between the

12 deceased and the appellant. The animosity of the

appellant towards the deceased was such that only a

couple of months before the present incident, he and his

friends had encircled Rishipal with the intention of killing

him. On that occasion, however, the deceased had

managed to escape. The next time he was not so lucky.

14. The deceased was undoubtedly expecting to be

attacked by the appellant, which is evident from the fact

that he started moving away from the path of the

appellant as soon as he saw him. He was running

towards the field of Birpal when the appellant opened fire

from his double-barrelled gun. The aforesaid incident

was witnessed by PW2 and PW3, who were only 15 to 20

paces behind the deceased at the time when he was shot

down. They have clearly stated that they did not chase

the appellant fearing for their own life.

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15. Both the Courts have also noticed that the FIR was

initially registered under Section 307 IPC on the basis of

the statement given by PW-2. In the aforesaid statement

PW2 had clearly stated that on 11.6.1978 at

about 3.30 p.m. when he was returning from the

FCI godown alongwith the deceased Ravinder Pal Singh

and Rambir Singh, they had seen the appellant coming

from the opposite direction on his motorcycle. He had

stopped his motorcycle upon seeing them. He fired at the

deceased from his double-barrelled gun and then fled

from the scene. He did not even care to take his

motorcycle with him, which was subsequently recovered

from the scene of the crime. He clearly stated that they

were so petrified that they did not chase him. In the FIR,

this witness further narrates the history of the animosity

between the deceased and the appellant. Therefore, both

the trial court as well as the High Court, in our opinion,

14 have correctly concluded that the motive was not

introduced only at the time of the trial, in Court.

16. Both the courts have noticed that Dr. V.P.

Kulshrestha (PW-5) medically examined Rishipal Singh

on 11.6.1978 at 8.30 p.m. and found the following gun

shot injuries on his person as per injury report:-

(i) Gun shot wound of entry 0."2cm x muscle deep in right shoulder front (total two in number, no blackening and tattooing), injury kept under observation.

(ii) Multiple gun shot wounds of entries in an area of 22cm x 17 cm on front of chest both sides (total number 15) No blackening and tattooing. Injury kept under observation.

(iii) Multiple gun shot wounds of entry in an area of 22cm x 21 cm on front of abdoment (total number 9) Injury kept under observation.

(iv) Multiple gun shot wounds of entry in an area of 13x5 cm right upper arm front and lateral

15 aspect (total number 6) extending upto elbow.

Injury kept under observation.

(v) 4 gun shot wounds of entry on dorsum of right hand Injury kept under observation.

(vi) Seven gun shot wounds of entry on front of right thigh upper 1/3rd, Injury kept under observation.

(vii) Gun shot wounds of entry in an area of 5x22cm on right upper arm front to medical aspect of left upper arm.

17. Dr. V.P. Kulshrestha had opined that the injuries

could be caused to Rishipal Singh on 11.6.1978 at

about 3 or 3.30 p.m.

18. Both the Courts have also noticed that Dr. E.A.K.

Tiwari, PW-10 conducted the autopsy on the dead body

of Rishipal on 12.6.1978 at 4.00 p.m. According to the

post-mortem report, the following injuries were found on

the dead body:-

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1. Multiple gun shot wounds of entry (fifteen) each measuring 0.25cm x 0.25cm roughly circular on both sides of chest (5 on the left and 10 on the right side).

2. Multiple gun shot wounds of entry (nine) in number measuring 0.25cm x 0.25cm roughly circular on the front of the abdomen.

3. Multiple gun shot wounds of entry (3) in number measuring 0.25cm x 0.25cm roughly circular on the front of the right shoulder.

4. Multiple gun shot wounds of entry (6) in number each measuring 0.25cm x 0.25cm roughly circular on the front and the side of the right upper arm.

5. Two gun shot wounds of entry 0.25cm x 0.25cm 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 0.25cm x 0.25cm 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

17 upper part each measuring 0.25cm x 0.25cm roughly circular.

8. One gun shot wound of entry 0.25cm x 0.25cm roughly circular on the medical side of the middle of the upper arm.

9. One gun shot wound of entry 0.25cm x 0.25cm roughly circular on the outer side of the left side of neck.

This witness clearly opined that Rishipal died of gun shot

injury.

19. The trial court as well as the High Court have also

considered the submissions as to whether injury no. 9

was inconsistent with the ocular version that only one

shot was fired by the appellant. It was also sought to be

submitted before us that injury no. 9 is definitely from a

different weapon. This according to Mr. Nagendra Rai

would clearly show that the genesis of the crime has been

suppressed by the prosecution. The trial court as well as

18 the High Court, upon consideration of the same

submission have concluded that both the doctors

examined i.e. PW-5 and PW-10 were not ballistic experts.

They were not able to state as to whether the injuries

were caused by a single shot from a double-barrelled

gun. Relying on "Modi's Medical Jurisprudence and

Toxicology" (19th Ed. Pg. 221), the trial court has

concluded that when a projectile strikes the body at a

right angle, it is circular and oval when it strikes the

body obliquely. Dr. V.P. Kulshrestha, PW-5, in his injury

report has stated that injury no. (i) is 2 cm x 2 cm

muscle deep and is on right shoulder. According to him,

if this pellet had moved slightly to the inner side, it would

have caused injury on the right side of the neck like

injury No. 9 on the left side. This apart, it is not disputed

that all the other injuries on the deceased could have

been caused by a single shot from a double-barrelled

gun. Both the trial court as well as the High Court has

19 held that the medical evidence is consistent with the

ocular evidence. We did not see any reason to interfere

with the findings recorded by both the Courts.

20. This now brings us to the submissions with regard

to the dying declaration. Factually, it is to be noticed

that the Tehsildar, who recorded the dying declaration

appeared as PW-6, he has clearly stated that although no

doctor was present in the hospital, he was informed by

the pharmacist that Rishipal Singh was in a fit state to

make a statement. He, thereafter, isolated the injured

Rishipal Singh and recorded his statement. He further

stated that he wrote down word by word what Rishipal

Singh had stated. The contents of the statement were

read to the injured who stated that he understood and

accepted the same. Only thereafter, he put his thumb

impression on the statement. It is undoubtedly true that

the statement has not been recorded in the question and

20 answer form. It is also correct that at the time when the

statement was recorded Rishipal Singh was in a "serious

condition".

21. This Court in Laxman case (supra) has enumerated

the circumstances in which the dying declaration can be

accepted. We may notice here the observations made in

the Paragraph 3, which are as under:-

The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination,

21 the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying

22 declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

22. In our opinion, the trial court as well as the High

Court correctly accepted that the dying declaration was

an acceptable piece of evidence. Merely because, it is not

in question and answer form would not render the dying

declaration unreliable. The absence of a certificate of

fitness by the Doctor would not be sufficient to discard

23 the dying declaration. The certification by the doctor is a

rule of caution, which has been duly observed by the

Tehsildar/Magistrate, Bisauli, who recorded the

statement. The statement made by the injured is candid,

coherent and consistent. We see no reason to disbelieve

the same. We, therefore, see no reason to differ with the

conclusions arrived at by the trial court and the High

Court with regard to the dying declaration also. We must

also notice that PW2 and PW3 have given clear and

consistent eye-witness account. They have narrated the

previous incident of disharmony between the appellant

and the deceased. They have also adverted to the

previous attempts by the appellant to harm the deceased.

The entire incident of shooting has been graphically

described by the two witnesses. The direct testimony of

these two witnesses have been corroborated by the

medical evidence and the dying declaration.

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23. In such circumstances, the trial court as well as the

High Court have recorded possible as well as plausible

conclusions. In our opinion, the judgments recorded by

the Courts below do not call for any interference. The

appeal is dismissed.

..................................J. [B.SUDERSHAN REDDY]

.....................................J. [SURINDER SINGH NIJJAR]

NEW DELHI;

NOVEMBER 09, 2010.

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