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2010 (7) Supreme 923
SUPREME COURT OF INDIA
B.Sudershan Reddy and Surinder Singh Nijjar, JJ.
Om Pal Singh — Appellant
versus
State of U.P. — Respondent
Criminal Appeal No. 973 of 2003
Decided on : 9-11-2010
Facts of the Case :
Appellant was prosecuted herein in the instant case for causing death of deceased by firing shots at him from his double barrel gun. Trial Court convicted appellant for said offence. Appeal thereagainst was Dismissed by High Court.
2. Present Appeal has been filed against said offence.
Findings of the Court :
Trial court as well as High Court correctly accepted that dying declaration was an acceptable piece of evidence. Merely because, it was not in question and answer form would not render dying declaration unreliable. The absence of a certificate of fitness by the Doctor held not sufficient to discard dying declaration. The certification by doctor is a rule of caution, which had been duly observed by Tehsildar/Magistrate, Bisauli, who recorded statement. The statement made by injured was candid, coherent and consistent. There was no reason to disbelieve the same. No reason was found to differ with conclusions arrived at by trial court and High Court with regard to dying declaration also. Prosecution witnesses PW2 and PW3 gave a clear and consistent eye-witness account . They narrated the previous incident of disharmony between the appellant and the deceased. They also adverted to previous attempts by appellant to harm deceased. The entire incident of shooting had been graphically described by two witnesses. The direct testimony of said two witnesses had been corroborated by medical evidence and dying declaration. In such circumstances, trial court as well as High Court had recorded possible as well as plausible conclusions. Impugned judgments recorded by Courts below did not call for any interference. Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
Surinder Singh Nijjar, J. —
1. This appeal has been filed against the judgment and order of the High Court of Judicature at Allahabad in Criminal Appeal No. 604 of 1980 by which the High Court has confirmed the judgment of the trial court wherein the appellant had been convicted under Section 302 IPC and sentenced to life imprisonment.
2. The prosecution version as noticed by the trial court as well as the High Court is that there was enmity between the deceased Rishipal and Om Pal Singh, the appellant herein for a number of years. Both the deceased and the appellant were competing for the license of a liquor shop near the railway station, Davera, about 3 years prior to the tragic incident on 11.6.1978. Since then, there had been several hostile incidents, at different times, between the two. It appears that on one occasion, the appellant had beaten up Rishipal, on the basis of which a criminal case was pending against the appellant in the local Court at Bareilly. Thereafter, there was a theft committed at the grocery shop of the deceased. Here again, he had registered a complaint of theft against the appellant at the local police station. As a consequence of these incidents, earlier also in the month of February or March, 1978, the appellant had tried to kill the deceased but he had managed to escape.
But the victim was not so lucky, when he was shot down by the appellant on 11.6.1978.
3. According to Ram Prakash (hereinafter referred to as PW 2) on 11.6.1978, he had gone to FCI godown in Village Ehroli to purchase food grains. Later, he, Rishipal, Ravinder Pal Singh (hereinafter referred to as PW 3) and Rambir Singh were returning form the godown on their cycles. When they were at a distance of about 200 steps form the culvert of the State tube well, the appellant also arrived there on his Yezdi motorcycle from the village. He was armed with a double-barrelled gun. Rishipal was about 15 to 20 paces ahead of the rest. On seeing him, the appellant parked his motorcycle at a distance of about 40 steps. He then advanced towards Rishipal. Seeing him the deceased became perplexed; he left his cycle and rushed towards the plot of one Birpal Singh. He was wearing an ‘open shirt’ (Ext. 1), ‘Baniyan’ (Ext. 2) and ‘Pant’ (Ext. 3). Thereafter the appellant fired one shot from his double-barrelled gun at Rishipal causing injuries to him. The deceased fell down as a result of the injuries. The appellant thereafter escaped, leaving behind his motorcycle.
4. PW 2 and others then took the deceased in a bullock cart to Davtra. Thereafter they proceeded to Police Station Bisauli at 6:10 p.m. on the same day and lodged the written report (Ext. Ka 2). On the basis of the written report (Ext. Ka 2), H.C Irshad Khan(PW 4) wrote FIR (Ext. Ka 4) and registered the case in GD. (Ext. Ka 5) under Section 307 IPC. He took the clothes of the injured Rishipal for which he wrote memo (Ext. Ka 3) and sent him to hospital Bisauli for medical examination. But unfortunately, no doctor was present there. Dr. Chandan Singh Verma (PW-1) medical officer at Bisauli was on leave on that day. Shri Bipaon Behari Khare (PW-6), the then Tehsildar Magistrate, Bisauli recorded his dying declaration (Ext.Ka9) at hospital Bisauli. He sealed this dying declaration and sent the same to CJM Budaun. The case was registered in the presence of S.I. Hawaldar Singh (PW-7). He started the investigation and recorded the statement of H.C. Irshad Ahmed and proceeded to the Hospital Bisauli. He recorded the statement of Rishipal (Ext. Ka11) there. Then he recorded the statements of Ram Prakash, Rambir and Ravinder Singh at the Hospital. He also recorded the statement of Shreepal there. Rishipal was then sent to the District Hospital, Budaun for medical examination after his dying declaration was recorded. S.I. Hawaldar Singh reached the spot along with complainant Ram Prakash. He inspected the site and prepared site plan (Ext. Ka12). He found Yezdi motor cycle at the spot. Th
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