Om Pal Singh VS State
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
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.
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 asPW 3) and Rambir Singh were
returning form the godown on their cycles. When they were at a distance of
about200 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-barreled 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-barreled gun at Rishipal causing
injuries to him. The deceased fell down as are sult of the injuries. The
appellant thereafter escaped, leaving behind his motorcycle.
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 senthim 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. There was a basket in his motor cycle containing bags and other goods (Exts
4 & 5). He took these articles in his possession for which he wrote memo
(Ext.-Ka13). He also collected blood stained earth (Ext.6), unstained earth
(Ext.7) and two wads (Ext.7&9) from the spot for which he wrote memo
(Ext.Ka14). He gave raid at the house of the accused but in vain. Then he
recorded the statements of Rajpal Singh, Mahipal Singh, Raghubir Singh and
V.P. Kulshrestha (PW-5) medically examined Rishipal Singh on 11.6.1978 at 8.30
p.m. and found gunshot injuries on his person and opined that the injuries could
be caused to Rishipal Singh on 11.6.1978 at about 3 or 3.30 p.m.
Singh died on 11.6.1978 at 9.40 p.m. at District Hospital, Budaun the report of
which was sent to Police Station Kotwali, Budaun. This report was received at
the Police Station Kotwali at 10.30 p.m. On receipt of this information S I
B.D. Sharma (PW-9) proceeded to the mortuary Budaun and held inquest on the
dead body of Rishipal Singh and prepared papers (Exts-Ka 17 toKa-22). He
sealed the dead body and sent the same through constables Harbir Singh and
Rajbir Singh on 12.6.1978 at 9.30 a.m. for post mortem examination.
E.A.K. Tiwari (PW-10) who conducted autopsy on the dead body of Rishipal on
12.6.1978 at 4 p.m. opined that Rishipal died due to gunshot injuries on
11.6.1978 at 9: 40 p.m. The information regarding the death of Rishipal was
received on 12.6.1978 through constable Harishankar at 6:30 a.m. and the case was
altered to 302 IPC vide G.D (Ext. Ka6). On the receipt of the post mortem
report S.I. Hawaldar Singh recorded the statement of the witnesses of inquest
report. Thereafter Inspector Chander Mohan Dixit made the remaining
investigation in the case. He submitted charge sheet(Ext. Ka 15) against the
appellant on 18.7.1978. The chemical examiner gave report (Ext Ka 24) that the pant,
open shirt, baniyan and earth (Exts 1 to 4) were stained with blood. The
appellant pleaded not guilty and was duly put on trial.
order dated 21.3.1980, the Trial Court convicted the appellant under Section
302 IPC, and sentenced him to rigorous imprisonment for life.
the aforesaid judgment, the appellant filed Criminal Appeal No: 604 of 1980
before the High Court of Judicature at Allahabad. The High Court vide order
dated 26.8.2002 confirmed the conviction and sentence of the appellant under
Section 302 IPC. Aggrieved by the said judgment, the appellant filed Criminal
Appeal No: 973 of 2003 before this Court.
We have heard Mr. Nagendra Rai, learned Senior Advocate for the appellant and
Mr. S.R. Singh on behalf of the respondent State. Mr. Nagender Rai, learned
senior counsel submitted that both the trial court as well as the High Court
have committed a serious error in convicting the appellant for the murder.
Learned counsel sub mitted that the entire genesis of the incident has been fabricated.
Both the eye-witnesses PW-2 and PW-3 have stated that the appellant had fired
only once from his licensed double-barreled gun. Yet the medical evidence clearly
shows that the deceased suffered multiple gunshot injuries, which are not
consistent with the ocular version given by the prosecution witnesses. Learned
senior counsel also submitted that if one examines the injuries carefully, it
would be found that the deceased had suffered injuries on the chest as well as
the back. This would not have been possible as the appellant is alleged to have
fired only once. It is further submitted that the motive narrated by PW-2 and
PW-3 is entirely a made up story. Neither PW-2 nor PW-3 were eye-witnesses
to any of the alleged incidents. They have merely given the evidence on the
basis of hear say. Learned senior counsel further submitted that there was recovery
of two empty cartridges from the spot which has not been explained by the
prosecution. This would clearly belie the version that has been given by the prosecution.
The evidence of PW-2 and PW-3 even otherwise ought not to have been believed
as they are not consistent on any of the relevant points. Learned senior counsel
submitted that the Courts below have erred in law in relying on the alleged
dying declaration recorded by Tehsildar/Magistrate, Bisauli. The dying
declaration could not have been made by the deceased as he would not have been
in a fit condition, in view of the seriousness of the injuries suffered. In any
event, the dying declaration has been recorded without obtaining 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.
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
Learned counsel for the State of U.P. submitted that there is clear evidence
of rivalry between the appellant 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
thatPW-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.
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 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
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-barreled gun. The aforesaid incident
was witnessed by PW2 and PW3, who were only 15 to 20paces 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.
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
statementPW2 had clearly stated that on 11.6.1978 at about 3.30 p.m.
when he was returning from the FCI godown along with the deceased Ravinder Pal
Singhand 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-barreled 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,have
correctly concluded that the motive was not introduced only at the time of the
trial, in Court.
Both the courts have noticed that Dr. V.P. Kulshrestha (PW-5)
medically examined Rishipal Singhon 11.6.1978 at 8.30 p.m. and found the
following gunshot injuries on his person as per injury report:-
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.
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
gun shot wounds of entry in an area of 22cm x 21 cm on front of abdoment
(total number 9) Injury kept under observation.
gun shot wounds of entry in an area of 13x5 cm right upper arm front and
lateral aspect (total number 6) extending upto elbow. Injury kept under
gun shot wounds of entry on dorsum of right hand Injury kept under observation.
gun shot wounds of entry on front of right thigh upper 1/3rd, Injury kept under
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:-
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 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
9. One gun shot wound of
entry 0.25cm x 0.25cm roughly circular on the outer side of the left side of
This witness clearly
opined that Rishipal died of gun shot injury.
trial court as well as the High Court have also considered the submissions as
to whether injury no. 9was 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 asthe 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 aright 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 cmmuscle 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-barreled gun. Both the trial
court as well as the High Court has 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
noticedthat 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 answer form. It is also correct that at the time
when the statement was recorded Rishipal Singh was in a "serious condition".
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 declaring, 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 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 declaring 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 off it ness by the Doctor would not be sufficient
to discardthe 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 dis believe 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.
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.[SURINDER SINGH NIJJAR]