IMPORTANT POINT
Murder – Once dying declaration made by deceased is proved, fact that Ballistic Expert could not give a definite opinion on the question of whether cartridge recovered from body of deceased was fired by Revolver recovered at instance of accused no.1, is not relevant at all.

JUDGMENT

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant Suresh @ Hanumant in Crl. Appeal No.2685 of 2023 is accused no.3. The appellant, Dinesh Kumar @ Khali in Crl. Appeal No. 1250 of 2023 is accused no.1, and the appellant, Deepak Kumar @ Chintu in Crl. Appeal No.3685 of 2023 is accused no.2. The trial court convicted all the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). In addition, accused no.1 was convicted for an offence punishable under Section 25(1B)(a) and 27(1) of the Arms Act, 1959 (for short, “the Arms Act”). They were sentenced to undergo rigorous life imprisonment for the offence punishable under Section 302 read with Section 34 of the IPC. Accused no. 1 was sentenced to pay a fine of Rs.20,000/- for the said offence. The accused nos.2 and 3 were sentenced to pay a fine of Rs.15,000/- each for the offence. Default sentences were provided for non-payment of fines. Accused no.1 was further sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/- for the offence punishable under Section 25(1B)(a) of the Arms Act. By the impugned judgment, a Division Bench of the High Court has confirmed the conviction and sentence of the appellants.

2. According to the case of the prosecution, the deceased Nagender Yadav was the husband of PW-1 Bindu. Accused no.1 used to stay in the same locality as PW-1 and the deceased. The other two accused used to roam around with accused no.1 in the locality and therefore, all three were known to the PW-1 and her deceased husband. According to the prosecution’s case, in Diwali of the year 2010, accused no.1 came to the house of the deceased and called the deceased outside the house. Accused no.1 was carrying a beer bottle at that time. He broke the said bottle on the door of the house of the deceased and left the house after abusing and threatening the deceased.

3. The incident happened on the intervening night of 15th and 16th May 2012. PW-1, along with her minor son, aged 10 years, and the deceased were sleeping in their house. Around 12:30 am on 16th May 2012, PW-1 heard a sound like a cracker. She woke up and heard her husband (deceased) calling her. She saw the deceased coming from the gate of the house in a bending position and was crying in pain. She turned on the light and found that the blood was oozing out of the abdomen of the deceased. Then she started weeping. The deceased upon asking PW-1 to call their family members, disclosed to her that accused no.1 had shot him when the accused nos.2 and 3 were also present with the accused no.1. Thereafter, PW-1 raised alarms, when PW-2 Ram Singh Yadav, who was the brother of the deceased and his sister’s son Angad (PW-10), who were neighbours of the deceased, rushed there. The deceased was taken to Sanjay Gandhi Memorial Hospital, from where he was shifted to RML Hospital. After a few minutes, he was declared dead.

4. The prosecution mainly relies upon the dying declaration of the deceased made before PW-1 and PW-2 as well as recovery of the firearm at the instance of the accused no.1. Though it was claimed that PW-10 Angad was also present when the dying declaration was made by the deceased, to that extent PW- 10 has not supported the prosecution. The Trial Court and the High Court have accepted the prosecution's case of dying declaration.

SUBMISSIONS

5. The learned counsel appearing for the appellants has taken us through the notes of evidence of the material prosecution witnesses. His first submission is that the photographs on record show that there was a big iron gate to the deceased's house; therefore, the theory that the accused entered the house at midnight cannot be accepted. He submitted that, as seen from the evidence of PW-1, there was darkness where the deceased was attacked, and she had to turn on the light. Therefore, it is unlikely that the deceased may have recognised his assailants in the darkness. It was submitt