B.R. Arora, J.@mdashThis appeal is directed against the judgment dated 11-8-86, passed by the Additional Sessions Judge, Bhilwara, by which the learned Additional Sessions Judge, convicted and sentenced the appellant for the offence u/s 302 I.P.C.
2. Appellant Mohammad Zakir along with Chhotu alias Abdul Hamid, Amir Khan, Wazir Khan and Gaffar Mohammad, was tried by the learned Additional Sessions Judge, Bhilwara, for the offence under Sections 302, 302/120B, 302/34 IPC and Section 3 read with Sections 25 and 27 of the Indian Arms Act. The case of the prosecution is that on 26-5-83, at about 10.45 p.m. PW 1 Balu Ram and his brother Satya Narain were returning from their shop situated near a temple in village Asind. Balu Ram was pushing a hand-cart having three wheels and an empty drum was lying on the hand-cart. Satya Narain was carrying two kettles in his hands -- one of the kettles was containing milk-cream and the another was containing curd. After covering some distance from the Railway Crossing, they, saw Mohammad Zakir and Chhotu coming from the opposite side having guns in their hands. Both the accused crossed them and after crossing two-three paces, accused-appellant Mohammad Zakir, by his muzzle-loading gun, fired towards Satya Narain, who, on receiving the injuries, fell down on the ground. Balu Ram thereupon cried and the accused ran away. Balu Ram called his younger brother Kailash and put Satya Naraion on the hand-cart and took him to the Primary Health Centre, Asind, where he was attended by PW 11 Dr. Mangi Lal Sharma, who medically examined him, gave him the necessary medical aid, called the police, the dying declaration of injured Satya Narain (Ex. P. 14) was recorded by PW 31 Ishwar Lal SHO, and the matter was, thereafter, referred to Mahatma Gandhi Hospital, Bhilwara, where Satya Narain was admitted at about 1.00 a.m. on 27-5-83 and he was attended by PW 10 Dr. Fateh Singh Choudhary -- the medical jurist. The condition of injured Satya Narain was serious and, therefore, his dying declaration Ex. P 11 was recorded by PW 18 Ganpat Singh, ASI Police. Satya Narain breathed his last in M. G. Hospital, Bhilwara, at 5.20 a.m. The prosecution, in support of its case, examined thirty-one witnesses. The accused, in their defence, examined three witnesses. The case of the accused, put-up in the defence, was that accused Mohammad Zakir is having the weak eye sight and he is completely blind by one eye and see very little from the another eye and, therefore, he could not carry the gun in the night and even cannot go outride the house in the night and some persons used to come in the area for hunting rabbits and peacocks and Satya Naraian might have received gunfire injuries at the hands of some hunter. The learned Additional Sessions Judge did not believe the defence version and rejected the same. He, however, came to the conclusion that the prosecution has been able to prove the case against the accused-appellant beyond a reasonable manner of doubt and convicted the accused-appellant for the offence u/s 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 100/- and in default of payment of fine further to undergo one month''s rigorous imprisonment. He, however, acquitted the accused-appellant of the offence u/s 3 read with Sections 25 and 27 of the Indian Arms Act. The learned Additional Sessions Judge, also, acquitted the co-accused of the offences under Sections 302, 302/120B and 302/34 IPC as according to the learned trial Court there was no evidence on record to prove the criminal conspiracy to commit the offence or any Common intention thereof to commit the murder of Satya Narain. It is against this judgment dated 11-8-86, passed by the learned trial Court convicting and sentencing the accused-appellant for the offence u/s 302 IPC that the appellant has preferred this appeal.
3. It is contended by the learned counsel for the appellant that PW 1 Balu Ram is not an eye witness to the occurrence as no blood was found On his clothes though he alleged to have lifted the injured the kettles were not found at the place of the incident and Balu Ram did not receive any injury though according to him he was accompanying the deceased and his evidence, also, does not find corroboration from the medical evidence. It is, also, contended by the learned counsel for the appellant that the appellant had no motive to commit the murder of Satya Narain and the prosecution witnesses Kailash and Babu Lal do not corroborate the prosecution case and from the evidence produced by the prosecution, no case against the accused-appellant is made-out and he, therefore, deserves to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court, below and submitted that the appellant has been rightly convicted and sentenced by the learned trial Court.
4. We have considered the submissions made by the learned counsel for the parties and perused the judgment as well as the record of the case.
5. The prosecution has produced thirty-one witnesses. Out of these thirty-one witnesses, PW 1 Balu Ram is the eye witness of the occurrence, who, also, lodged the FIR. PW7 Salim is a witness, who helped the accused-appellant in procuring the gun from PW 13 Hasan. PW 12 Satya Narain is a witness, from whom a pen and paper were taken by the accused, on which the accused wrote something. PW 19 Kailash Chand is the brother of deceased Satya Narain, who came at the scene of the occurrence immeditaely after the occurrence. PW 20 Choth Mal is the Photographer who took the photographs Ex. P37 to Ex. P40 of the place of the incident. PW 21 Babu Lal was living in the vicinity where the incident took place, who heard the cries of some persons, while he was standing on the roof of his house that somebody was killed but he does not know the name of the person who has been killed and the killer PW2/Bheru Lal, PW3 Ram Dayal, PW4 Ladu Lal PW5. Lal Chand, PW6 Bheru Lal and PW 16 Bhanwar Lal are the Motbir witnesses to the various memos and the recoveries. Witnesses PW4 Ladu Lal, PW8 Lukhman, PW9 Yunus Ahmed, PW 13 Hasan, PW 14 Sarraft, PW 15 Shamshuddin, PW 17 Gani Mohammad and PW 22 Lal Mohammed have not supported the prosecution case during the trial and they have been declared hostile. PW 10 Dr. Fateh Singh Choudhary was the Medical Jurist, M. G. Hospital, Bhilwara, who attended deceased Satya Narain and in whose presence the dying declaration was recorded and who, also, performed the postmortem examination on the dead-body of deceased Satya Narain. PW 11 Dr. Mangi Lal Sharma was the Medical Officer Incharge, Primary Health Centre, Asind, who attended injured Satya Narain when he was brought to the Primary Health Centre and referred the matter to M. G. Hospital, Bhilwara. The remaining are the police witnesses, who were involved in the investigation at one stage or the another. The learned trial Court, while convicting the appellant, placed reliance over the statements of PW 10 Dr. Fateh Singh Choudhary and PW11 Dr. Mangi Lal Sharma; the dying declaration Ex. P. 11 made by the deceased and the circumstantial evidence relating to: (i) the recovery of the pellets and the clothes of the deceased, and (ii) the recovery of the gun from the house of the father of the accused which was found serviceable and recently used. The learned trial Court did not place reliance over the dying declaration Ex. P. 14 recorded by PW 31 Ishwar Lal, SHO and, also, did not place reliance over the statements of other witnesses.
6. The case of the prosecution mainly rests upon the evidence of PW1 Balu Ram and PW 19 Kailash Chand, which is sought to be corroborated from the medical evidence, the dying declarations made by Satya Narain and the recovery of the gun on the information and at the instance of the accused-appellant, which was found recently used and the recoveries of the pellets etc. from the place of the occurrence.
7. PW 1 Balu Ram has stated that on 26-5-83, at about, 10.45 p.m., he, along with his brother Satya Narain(deceased) was returning from their shop situated, near the temple in village Asind. He was carrying the hand-cart of three wheels whereon an empty drum was placed., Satya Narain had two kettles in his hand and one of the kettles was containing curd and the other was containing milk-cream. When they crossed the gate, in the light they saw accused Mohammad Zakir and Chhotu carrying the guns. On seeing both the accused they turned by the side of the road. Both the accused crossed them and after crossing them, accused Mohammad Zakir fired towards us, which hit Satya Narain, who, after receiving the injuries, fell down on the ground and cried and thereafter the accused ran away. He could not lift Satya Narain as he was a man of heavy weight and, therefore, he ran towards the house, informed the inmates of the house about the incident and his father, sister and brother Kailash came towards the place of the incident, took-down the drum from the cart and put injured Satya Narain on it and took him to the Primary Health Centre, Asind, handed him over to the doctor and went to the Post Office to inform the police on telephone but as the Post Office was closed, he directly went to the Police Station to lodge the report. This witness has further stated that his brother Satya Narain has been killed by accused Mohammad Zakir and Chhotu on account of enmity as the Muslim persons used to play playing-cards in the temple and they objected to it. This witness has further stated that the site-plan and the inspection note were prepared in his presence and the recoveries were, also, made in his presence. In the cross-examination, he has denied the suggestion that he was not present at the scene of the occurrence when the incident took place. This witness has admitted that the house of one Onkar Banjara falls in the way but he denied the suggestion that there was a marriage on that day and stated that nobody was present out-side the house of Onkar Banjara. He has, also, admitted that at the place of the incident the kettles were not found when the police arrived there. He has, also, denied the suggestion that Mst. Anchi informed him and other members when they came at the place of the incident that two hunters fired towards pea-cocks which hit Satya Narain. He has, however, admitted that he did not disclose the motive with the accused to commit the murder either in the FIR or in his statement recorded u/s 161 Cr. P. C. because no such enquiry was made from him by the police. When this witness was confronted with certain omission, also, he stated that he stated so to the police but why the police did not record so, he cannot say. In the cross-examination he has admitted that when he lifted Satya Narain and put him on the hand-cart, his hands were smeared with the blood but his clothes were not stained with the blood of Satya Narain. He has denied that two hunters, armed with guns, were going from that side at the time of the incident. He has, also, denied the suggestion that some villagers informed him that they saw two hunters firing towards pea-cocks. In the cross-examination he has stated that the fire was made from the distance of one feet after when the accused crossed them. This witness has tried to make improvement from his statement recorded during the investigation. He has tried to improve his version so that it may fit in the prosecution case. This witness, though stated that he was with the deceased going side by side but in spite of this fact he did not receive any injury though they were going closely. He lifted the injured from the ground and put him on the hand-cart. The blood was coming out from the injuries sustained by the deceased but still no blood was found on the clothes of this witness. The kettles were not found at the place of the incident, which, also, belies the evidence of this witness. The evidence of this witness, also, does not find corroboration from the medical evidence. According to this witness, the fire was made by the accused-appellant from a distance of one or two feet while as per the medical evidence, the fire was made from a distance often to twenty feet. Further, as per this witness the fire was made from behind while the direction of the fire-injuries received by the deceased is perpendicular as has been disclosed by PW 10 Dr. Fateh Singh Choudhary. Looking to the improvements made by this witness and certain other omissions in his statement as well as from the fact that the evidence of this witness does not find corroboration from the medical evidence and this witness neither received any injury nor his clothes were smeared with the blood, raise suspicion on the presence of this witness at the scene of the occurrence. If he would have been coming with the deceased then he must have received gun-shot injury and if he tried to take-up the deceased from the ground and put him on the handcart then he must have received blood stains on his clothes. These facts raise a suspicion on the presence of this witness at the time of the incident. The learned lower Court was, therefore, not justified in placing reliance over this witness, also.
8. PW 19 Kailash Chand is the other brother of deceased Satya Narain, who came at the scene of the occurrence immediately after the incident and saw accused Mohmmad Zakir and Chhotu going towards the village and coming from the side of Panchayat Samiti. He has stated that on 26-5-86, at about 10.30 p.m., he was sitting in his hotel situated opposite Panehayat Samiti. He Saw accused Mohammad Zakir and Chhotu coming from the side of Panchayat Samiti and proceeding towards the village and they were armed with guns. He started closing the hotel as it became late and in the meantime he heard the sound of gun-fire and simultaneously heard the crise of his brother Balu Ram saying that "Sattu has been killed by fire arm." When he went towards the place of the incident, he saw his brother Balu Ram running towards his house, who informed that Zakir had opened fire on Sattu. He went at the place of the incident and saw Sattu lying on the ground, who had fire-arm injuries on his person and disclosed that Zakir has inflicted injuries to him. In the cross-examination he has stated that the place of the incident was visible from his house and he directly went to the place of the occurrence and did not go to his house. When he was confronted with his statement Ex. D. 1 that his brother Balji came to the house running, he disclosed that he did not say so to the police but stated to the police that he was coming towards the Dhani. He has, also, denied that he made the statement during the investigation that he along with his family members came from the house and reached at the place of the incident. He has stated that Zakir and Chhotu passed near his shop from a distance of about ten feet and he cannot say how much time was taken in covering the distance from his shop and the fire made by the accused. He has, also, admitted that in the compound of Panchayat Samiti, the employees of Panchayat Samiti use to reside. This witness has tried to make improvement from his earlier statement. The earlier version given by this witness was that he was in the house when the incident took place and his brother Balu came running to the house and on being informed by him, he and his other family members went to the place of the occurrence and saw his brother Satya Narain lying injured. The evidence of this witness that he saw the accused before the incident while he was sitting at the hotle, does not inspire confidence. This witness has tried to make improvement to bring his statement in conformity with the prosecution case. This witness has actually not seen the accused armed with the fire-arms as he was sitting in the house and came to the place of the incident after receiving the information either from some person or after hearing the sound of fire-arm. The evidence of this witness, also, does not inspire confidence.
9. The learned trial Court sought corroboration of the statement of PW 1 Balu Ram from the medical evidence, but the medical evidence, instead of supporting the statement of PW 1 Balu Ram contradicts it. There was no blackening or charring around the wounds found on the deadbody of Satya Narain. If the injuries would have been caused by the fire-arm from a distance of one or two feet only, as disclosed by PW 1 Balu, Ram, then there must have been blackening and charring marks on the clother and around the wounds. The direction of the injury, the nature of the injuries found on the corpse of Satya Narain, the distance and the dispersion of the pellets etc. clearly negative the prosecution case instead of supporting it. The medical evidence does not. support the prosecution case. The learned trial Court was, therefore, not justified in seeking corroboration from the medical evidence, which rather contradicts the prosecution case.
10. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the dying declaration made by Satya Narain. There are two dying declarations on record-- one is Ex. P. 14 recorded by PW 31 Ishwar Lal on 27-5-83 at Primary Health Centre, Asind in the presence of PW11 Dr. Mangi Lal but that dying declaration has not been believed by the learned trial Court. We have considered the evidence relating to this dying declaration and we are of the opinion that it was rightly not believed by the learned Trial Court. The Tehsildar was called for recording the dying declaration of deceased Satya Narain but before he could reach, the SHO himself recorded the dying declaration of Satya Narain. He did not consider it proper even to get the certificate from the doctor on duty showing that the injured was in a fit condition to make the statement. Certain other infirmities, also, were pointed out by the learned trial Court and we are of the opinion that the reasons given by the learned trial Court for the rejection of this dying declaration are convincing. The dying declaration Ex. P 14 was, therefore, rightly disbelieved by the trial Court. The second Dying Declaration was recorded by PW 18 Ganpat Singh, ASI, in M. G. Hospital, Bhilwara at 3.00 a.m. The letter Ex. P25 was written by the Medical Jurist requesting the City Kotwali, Bhilwara, to get the dying declaration of Satya Narain recorded. The reply tp Ex. P24 was received by the doctor that he may record the statement as at that odd hours no Magistrate was available. PW 10 Dr. Fateh Singh Choudhary did not record the dying declaration himself and it was PW 18 Ganpat Singh, ASI, who recorded the dying declaration Ex. P. 11 of Staya Narain. No note on this dying declaration has been given by the doctor regarding the state of mind of the deceased. It has not been mentioned in the dying declaration that Satya Narain was in a fit condition to make the statement. The dying declaration is also, not in the question and answer form. In view of the Exception provided in Sub-section (2) of Section 162 Cr. P. C. it would have been better that the doctor, who was present, should have recorded the dying declaration. As the investigating officers are naturally interested in the success of the investigation, therefore, recording of the dying declaration by the investigating officer himself instead of recording it by the doctor, should be depricated. The dying declaration has been recorded by PW 18 Ganpat Singh, ASI is in the form of statement and is not in question and answer form and, therefore, it cannot be said that to what extent the answers have been suggested by the questions put to the injured. The dying declaration Ex. P. 11, also, does not disclose exactly what statement was made by the deceased. The law requires that the exact words used by the deceased should be made available to the Court. Though the evidence of dying declaration is accepted on the ground that a dying man will not tell a lie, but the dying declaration Ex. P. 11 which does not contain the note of the doctor that the deceased was in a fit condition to make the statement, and as it is not in the question and answer form and recorded by the investigating officer himself, raises the suspicion regarding the truthfulness of the statement allegedly made by the deceased. The evidence of this dying declaration, also, does not inspire confidence and we are of the opinion that no conviction of the accused can be based on this dying declaration Ex. P. 11.
11. The other circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the pellets from the place of the incident and the recovery of the clothes of the deceased. These recoveries are of no consequence because it is an admitted position that Satya Narain died on account of fire-arm injuries received by him and the place of the incident has not been disputed. When a person received fire-arm injuries, pellets enter into the body and some of the pellets may fall on the ground and they can be recovered from the place of the incident and the holes will be found on the clothes of the injured. These recoveries, therefore, do not help the prosecution.
12. The last circumstance believed by the learned trial Court is the recovery of the gun on the information and at the instance of the accused- appellant. It was a muzzle-loading gun recovered on the information and at the instance of the accused. The gun was found recently used as has been disclosed in the prosecution evidence. But it does not connect the accused-appellant with the crime. Merely because the gun was found used recently, does not mean that it was used in this incident. In the muzzle loading gun, pellets are discharged. They do not connect the gun in any way. There is no specific finding of the Ballistic Expert on the point that this gun was used in the crime. This gun does not connect the accused with the crime.
13. For the reasons mentioned above, the judgment passed by the learned trial Court convicting and sentencing the appellant, deserves to be set aside and the accused-appellant deserves acquittal.
14. In the result, the appeal, filed by accused- appellant Mohammad Zakir, is allowed. The judgment dated 11-8-86, passed by the learned Additional Sessions Judge, Bhilwara, convicting and sentencing the accused-appellant, is set aside and the appellant is acquitted of the offence u/s 302 IPC. He is in jail and be released forthwith if he is not required in any other case.
