REPORTABLE

 IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 973 OF 2003

Om Pal Singh                          … Appellant

VERSUS

State of U.P.                                …Respondent

  J U D G M E N T

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.   

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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.  

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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’  

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(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  

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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  

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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 others.

5. Dr.  V.P.  Kulshrestha  (PW-5)  medically  examined  

Rishipal Singh on 11.6.1978 at 8.30 p.m. and found gun  

shot 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.

6. Rishipal  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  

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mortuary Budaun and held inquest on the dead body of  

Rishipal  Singh  and  prepared  papers  (Exts-Ka  17  to  

Ka-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.  

7. Dr.  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  gun  shot  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  

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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.

8. By order dated 21.3.1980, the Trial Court convicted  

the appellant under Section 302 IPC, and sentenced him  

to rigorous imprisonment for life.

9. Challenging 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.

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10. 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 submitted  

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-barrelled gun.  Yet the medical evidence  

clearly  shows  that  the  deceased  suffered  multiple  gun  

shot 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  

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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  hearsay.  

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  

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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

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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  

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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,  

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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  

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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  

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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  

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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  

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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  

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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,  

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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  

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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  

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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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