SARJOO PROSAD, C. J. -
(1.)THESE two appeals arise out of the same judgment and order of the learned Sessions Judge, Pali, dated 29th November, 1958, convicting the appellant under section 302 of the Indian Penal Code and sentencing him to imprisonment for life. One of the appeals was preferred from jail while the other has been presented through counsel in Court.
(2.)THE facts leading to the prosecution have been carefully summed up in the judgment of the learned Sessions Judge. Briefly they are as follows: THE case relates to an incident which took place early in the afternoon of 13th June, 1955 resulting in the death of Ummaid Singh, a young man of only about 30 years, who was the eldest son of the appellant. Besides the deceased the appellant has two more sons named Raghuraj Singh (P. W. 1) and Balbeer Singh. He has also a daughter called Rajendra Kumari (P. W. 12), who is married to one Raghuraj Singh of Padampura in the District of Sawai Madhopur. THE first wife of Ummaid Singh had died leaving a daughter Mst. Taj Kanwar (P. W. 8), who was about 9 or 10 years old when the occurrence took place. Ummaid Singh was married a second time to Mst. Girdhar Kanwar (P. W. 11), a sister of Raghuraj Singh of Padampura. After the death of her mother, the daughter Taj Kanwar mostly stayed with her maternal grandmother in Bagru House at Jaipur. THE appellant lived in Lototi in a room which faces a lake on the first floor of the house known as Garh or Kot (small fort ). Ummaid Singh, the appellant's son, as also the younger son stayed in rooms in the ground floor, while the ladies Girdhar Kanwar, Rajendra Kumari, and the wife of the appellant Mst. Pratap Kanwar (P. W. 13) stayed in the Zenana portion of the house. Rajendra Kumari had come from Padampura to Lototi about a day before this occurrence and she was staying with Girdhar Kanwar. It appears that a few days before the unfortunate incident Ummaid Singh had gone in a marriage party and when returning from there he brought with himself his daughter Mst. Taj Kanwar to Lototi. This was only a day before the occurrence and he also happened to bring with him an engine of a flour m 11 which had been given to him as gift by his father-in-law. It is said that Ummaid Singh, who has been already handed overcharge of the management of Thikana Lototi, had taken a loan of Rs. 2,000/- from the accused for payment of some decree against the Thikana. On the date of the occurrence in question it is said that the appellant demanded the return of the money from him which led to some unpleasantness between the father and Â« the son. THE story as told by Mst. Girdhar Kanwar, the wife of the deceased, is that on this fateful day at about 8 A. M. Ummaid Singh was called by his father through a servant named Kalyan Daroga and the father demanded back the money. Ummaid Singh told his wife that Thakur Sahib had been quarrelling about the repayment of his money and asking to get out of his house. Ummaid Singh, therefore, took away from her the saman of the Thikana like "chanwat", "chhadi", horses' ornaments etc. and threw all those articles in front of his mother and then went away to his room in the ground floor. In the afternoon between 1&2 P. M. when Umaidsingh with his wife, sister and daughter was about to take his midday meal, he was again called by the appellant. Ummaid Singh then went to the appellant's room. THE story then proceeds that Girdhar Kanwar and Rajendra Kumari soon after heard a Halla in the appellant's room. THEse ladies then ran from their room which was also on the first floor about 20 yards away towards the appellant's room and as they started they heard the report of a pistol fire in that room and in quick succession there was a second report. By the time they had entered the room there was also a third fire from the pistol. Girdhar Kanwar noticed that the pistol was in the hands of the appellant and Ummaid Singh stood injured bleeding in the abdomen. Girdhar Kanwar and her mother-in-law Pratap Kanwar, the wife of the appellant, caught, hold of his hands and got the pistol released. THEn Girdhar Kanwar supported her husband in taking him out to the terrace adjoining the room, when a Chhut Bhai Narain Singh also arrived and took charge of Umaidsingh. Umaidsingh was later shifted with the help of Narainsingh,raghurajsingh &others in a truck to Jaitaran hospital, where Harakraj (PW16) finding his condition precarious sent information to the Sub-Divn. Magistrate and the police for having his dying declaration recorded. A Second Class Magistrate, Shri Chandi Dan (P. W. 7), then arrived at the Jaitaran Dispensary at about 6. 30 P. M. and recorded the dying declaration in the presence of Dr. Harakraj, Dr. Sohanlal and one Mr. Qurreshi, a Police Sub-Inspector. Dr. Harakraj, who had examined Ummaidsingh, noticed that he had a perforated wound in the abdominal cavity on the middle of the left side of the abdomen at the level of the umbilicus. He also noticed that the bullet had pierced the intestines. Since he apprehended that the condition of the injured was dangerous, he gave him first-aid and later removed him to Mahatma Gandhi Hospital in Jodhpur for operation, as the bullet lodged inside the abdominal cavity had to be taken out. THEy reached Jodhpur at about 9 P. M. when Ummaid Singh was immediately operated upon by Dr. Gangaram (P. W. 10), who extracted the bullet. THE condition of the victim does not appear to have worsened on the 14th but on the 15th evening he became restless and delirious; the pulse became feeble and ultimately he succumbed at about 7-30 P. M. that evening. THE autopsy on his body was performed by Dr. Radheymohan (P. W. 9) next morning at about 11 A. M. on 16. 6. 56 and this doctor was of opinion that death was due to shock on account of the gunshot wound.
It has been already observed that Dr. Harakraj had also sent verbal message to the Police Station, Jaitaran that the Lototi Kanwar, meaning Umaid Singh, had received a gunshot wound and was lying in the Dispensary and so the police should reach there immediately. The Head Constable, Rehmat Ali (P. W. 15), who was then in charge of the Police Station, in the absence of his senior officer rushed to the Dispensary immediately. On his arrival a written first information of the incident (Ex. P. 1) was handed over to him by Raghuraj Singh, the youngest brother of Umaidsingh. Rehmat Ali also recorded the statement of Raghuraj Singh (Ex. P. 3 ). He prepared a farad Zarbat of the injuries on the person of Ummaidsingh (Ex. P. 5) and sent a report to the Magistrate for recording the dying declaration of the victim. In the meantime Mr. Chandidan, a Second Class Magistrate, who had already received information from the doctor, arrived at the hospital and recorded the dying declaration. This dying declaration is a very important piece of evidence in the case and will have to be dealt with in extenso. The Police Officer thereafter left for Lototi, about 6 miles off from Jaitaran, and arrested the appellant the same evening at about 10 P. M. Next morning he inspected the site and prepared a site plan. He also seized a bullet and some small piece of plaster lime from inside the room of the appellant where the incident is alleged to have taken place. The bullet and the piece of plaster lime were found to be lying near the wall on which there was a mark of the bullet. He put them inside a sealed cover which was later handed over to another investigating officer Shankersingh (P. W. 6) on 15th June, 1956, Rehmatali himself being deputed to Police Lines at Pali. This Shankersingh, also a Head Constable, did further investigation under the supervision of the Circle Inspector Shri Genda Singh. On 18th June, 1956, Raghuraj Singh, the son of the appellant, produced a double-barrelled 12 bore gun and a revolver before him. In the chamber of the revolver there were found two spent cartridges which have all been exhibited in the case. The investigation was finally completed by the Officer-in-charge of the Police Station Shri Udairaj (P. W. 14) who did not take charge of the case until six days later on 19th June, 1956. The bullet extracted from the body of the victim which had been handed over by the operating surgeon to Dr. Harakraj was also handed over to this Officer and he recorded the statements of Rajendra Kumari, Girdharkanwar, Pratapkanwar and Tajkanwar in Jaipur and Padampura and then submitted charge-sheet against the appellant who was in due course committed to the court of Session and tried and convicted as aforesaid.
The appellant pleaded not guilty to the charge under sec. 302 of the Indian Penal Code. His version substantially is that on the day of the occurrence Ummaidsingh came to him with a request for Rs. 2,000/- which he needed to instal the flour mill which he had brought from his father in law. The appellant replied that Ummaidsingh having himself been in charge of the management of the Thikana for the last 7 or 8 years, the appellant had no money with him. Ummaidsingh then left the appellant's room but in the afternoon he again came to the appellant's room demanding money and insisting that his prestige was at stake and that if the money was not paid to him he would commit suicide. It is said that Ummaidsingh carried a revolver with him and before the appellant could intercept he shot himself. The shot hit Ummaidsingh on the left abdomen and the appellant became unconscious at the sight. When he regained his senses he was arrested by the police. Substantially, therefore, the defence of the appellant is that the deceased committed suicide and in the alternative it has been pleaded that he received the gunshot injury during the course of a scuffle when the appellant was trying to snatch the revolver from the hands of Ummaidsingh. A few defence witnesses have also been examined in support of this theory of suicide, namely, Narainsingh (D. W. 1) and Harisingh (D. W. 2), two of the Chhut Bhaiyyas of the appellant, and Kalyan Daroga (D. W. 3) his servant. The defence has examined a firearms and ballistic expert.
The notable and unfortunate feature of the case is that several of the alleged eyewitnesses, for instance, Pratapkanwar, the wife of the appellant, and Raghuraj, his son who were said to be present when the occurrence took place, have gone back upon the earlier statements which they made before the police. They have been declared hostile and cross-examined by the prosecution. The prosecution, therefore, has to fall back upon the dying declaration of Ummaidsing, the deceased, and the evidence of Mst. Girdharkanwar, his widow and that of Tajkanwar, his daughter, as corroborated by the first information report. In our opinion, the dying declaration is the most material piece of evidence in the case and it is, therefore, necessary to refer to it in some detail. The dying declaration is in Hindi and was recorded by Shri Chandidan, a Second Class Magistrate of Jaitaran, at the local dispensary at about 6-30 P. M. on the day of the occurrence. Freely translated in English it is to the following effect - "i state on oath that to-day at about two or three hours earlier I was sitting in the room of my Data (father) in the Kot of the Thikana at Lototi. We were discussing about the management of the Thikana; there was a talk of having something in writing for a sum of Rs. 2,000/-and also about the compensation form. I refused to write any such document about the sum of Rs. 2,000/- until the Thakur Sahib of Ber arrived. At this there was a quarrel between me and my Data. My mother and my younger brother Raghuraj Singh were then present there. A pistol was lying underneath the cushion of the chair of my Data (father ). He fired three shots with that pistol. The first shot hit me in the left side of the abdomen. When he was firing the second shot, I caught hold of the pistol and the third fire also drew blank. As soon as there was the second fire my sister and my wife came over there. I snatched away the pistol and handed it up to my younger brother Raghuraj Singh. At that time there was also a 12 bore gun lying loaded in that room. I unloaded that and threw it away. When there was the third pistol fire, Chhut Bhai Narain Singh and others also arrived, whom I cannot correctly describe in this condition. (There is a note at this stage that he was feeling some pain ). My brother Raghuraj Singh and Narain Singh then carried me to my room. While the talk was going on I was sitting on a mundha. When my Data (father) sought for the pistol underneath the cushion, my mother rushed towards him. I then apprehended that there was some trouble brewing (dal men kala dikhta hai ). By the time he fired I had stood up. My father fired the shots. I was then standing at a distance of two or three feet from my Data. We were sitting facing each other. Again says, I was on the right side. "
The endorsements at the end of the statement show that the state ment had been read out to the deponent who signed it in token of its correctness. It further shows that the officer recording the statements that the declaration was made in his presence voluntarily by Ummaid Singh in a conscious condition. The deponent was identified before the officer by Dr. Harak Raj, Dr. Sohan Lal, and Shri N. S. Qurreshi, a Police Sub-Inspector, all of whom along with Head Constable Rehmat Ali appear to have been present when the dying declaration was given. If this dying declaration passes the test of reliability, there can be no doubt that the prosecution story would be amply proved. The learned counsel for the appellant has, therefore, taken great pains to contend against the genuineness of this dying declaration; but before we come to his criticism we may look to the relevant evidence on the point to ascertain how far it is supported by other materials on record. The Officer, who recorded the statement, says that when he reached the Dispensary at 6. 30 P. M. , he saw Ummaid Singh lying on a stretcher in Jaitaran Hospital. He had a bandaged injury on the left abdomen and the bandage was smeared with blood. Ummed Singh was in a condition to speak and he was quite conscious and in his senses to understand things. The Officer himself knew Ummaid Singh from before. Ummed Singh gave his statement in a narration form without questions being put to him, and the Officer was satisfied that the declaration was given by Ummaid Singh voluntarily. He says that Dr. Harakraj and Dr. Sohan Lal were both present by the side of Ummaid Singh when his dying declaration was being recorded. Ummaid Singh gave his statement in a continuous narration but at times when he felt great pain on account of the injury he stopped for some time and then again proceeded, and it took him about 20 to 25 minutes to record the dying declaration. All this is borne out also by the endorsements made by the Officer at the time when he recorded the statement. The Officer was also unable to detect that Ummaid Singh entertained any malice or ill-will against his father. It is clear from the statement itself that it is a plain and unvarnished narration of facts without any exaggeration or illwill. In fact all the time the deceased appears to have respectfully addressed his father as "data'. That the statement was voluntary and made by Ummaid Singh in a conscious and fit state of mind is supported also by the statement of Dr. Harakraj, the Medical Officer in charge of the Jaitaran Dispensary. He says that the dying declaration was recorded in his presence and that Ummaid Singh was conscious and in a fit state of mind when he gave his statement. He had normal understanding at the time and could give his statement in the form of a narration. It is true that his condition was dangerous and the doctor apprehended that he would not survive; but the doctor's evidence shows that the patient was conscious and speaking even when he was on the operation table. This is also the evidence of the surgeon who performed the operation.
Even Dr. Sohan Lal, who has been examined for the defence and who was admittedly present at the time, does not deny that the statement was made by Ummaid Singh himself in a conscious state of mind. He admits that the deposition of Ummaid Singh was recorded as spoken by him and Ummaid Singh signed it after reading it himself. The witness also signed the declaration after reading it. He further admits that the facts contained in the appended certificate were all correct. About Mr. Qurreshi, the Police Officer, he says that the Officer was sitting silent during the time that the deposition was being recorded. The witness has tried to support the defence version. He says that when he asked Ummaid Singh how he met with the accident, the latter replied that he and his Data had a scuffle and during that scuffle he received the gunshot wound. It is difficult to accept the statement of the witness on the point. If he knew that the dying declaration was nor correctly given about the cause of the accident, as an honest individual he should have pointed this out to the Officer recording it and not signed the declaration in token of its correctness. Actually if it was a case of accidental gunshot wound, Ummaid Singh would never have attributed the blame for the injury to his father thereby implicating him in a charge of murder. It is preposterous to suggest, as it was suggested by Mr. Trivedi, that it was at the instance of this witness that Ummaid Singh, to escape any possible charge of suicide, implicated his father in making the statement that he did. The evidence clearly shows that the version in the dying declaration is a true and genuine statement of facts as they happened, resulting in the gunshot injury to Ummaid Singh and the person who caused that injury. In our opinion, on the face of the dying declaration alone the prosecution case is fully established; but it also finds corroboration from different other sources.
We would refer at this stage to the first information report which was lodged by younger brother of Ummaid Singh and the son of the appellant. It is a written report and signed by Raghuraj Singh and handed over to Rehmat Ali Head Constable at the Jaitaran Hospital as soon as the latter arrived there. The learned Sessions Judge has rendered it in English and it runs as follows: - Shriman Sub-Inspector Sahib, Thana Police, Jaitaran. Shrimanji, it is Requested that to-day on 13. 3. 56 noon my elder brother Ummaid Singh was sitting in the upstairs room of my father Hukum Singhji and talking about the Thikana Lenden. My father suddenly fired a shot at my brother from a revolver which was lying on a sofa set below the pillow and the shot hit on the left abdomen. Two pistol fires missed because Ummaid Singhji caught hold of the pistol. At that time I and my mother were present in the room. At other fires my sister and Bade Bhabhi (wife of the deceased) had arrived. Ummaid Singhji unloaded a 12 bore gun and had given to me which I shall produce. I have brought my brother to the hospital. The bullet is still lying in abdomen. Signed Raghuraj Singh. 13. 6. 56. On receipt of the above report the Head Constable also examined Raghuraj Singh. His evidence before the police is quite consistent with the first information report which fully corroborates the dying declaration. In his evidence in Court Raghuraj admits having written and signed the first information report; but he says that the whole thing was dictated to him by the Prosecuting Sub-Inspector Mr. Qurreshi, who was then present in the Jaitaran Dispensary. The dying declaration and the first information report both indicate that Raghuraj Singh was present at the time of the occurrence but Raghuraj denied this in Court and alleged that he was somewhere in the garden. He also alleged that he was unconscious at the time the dying declaration of his brother Ummaid Singh was being recorded in the hospital; but on his own showing the fact is that even though he may have fainted at some stage for a few minutes he regained consciousness at about 4-30 or 4-45 P. M. and he was in his senses when he wrote down the report; but he then says that his mind was puzzled and he wrote it on the dictation of the Police Sub-Inspector because Ummaid Singh directed him to do so and he did not realise at the time that he was writing a false version of the occurrence thereby implicating his own father. All this endeavour to explain away the first information report is palpably false. The witness is a matriculate and does not appear to lack maturity. The first information report is written in a set and steady hand and signed by Raghuraj Singh in English. It is, therefore, difficult to believe that he wrote the report at the dictation of somebody and in a puzzled state of mind. The learned Sessions judge has rightly commented that his evidence in Court is very unnatural. We do not see any reason why either Ummaid Singh or Mr. Qurreshi would direct him to make a false report to the police foisting the blame upon the father for causing the gunshot injury and that in a conscious state of mind this young man himself would be a party to any such conspiracy against his father. In fact he has tried to feign ignorance about the nature of the injury on his brother and the manner in which he came by this injury. He says that till the day of his examination in Court he did not know whether his brother had shot himself or any assailant had shot him, and he never tried to find out how his brother received the injury since he had no interest in the case. There is convincing evidence to show that he was actually present at the time of the occurrence and would have been a valuable eye-witness but for the fact that in Court he has prevaricated and tried to conceal his knowledge of the incident.
The learned Sessions Judge, however, holds that the first information report fell within the mischief of section 162 of the Code of Criminal Procedure and was, therefore, inadmissible in evidence. He observes that Rehmat Ali, the Head Constable, had received a verbal message through the cook of the hospital that Lototi Kanwar had received a gunshot wound. On receipt of the information the Constable immediately repaired to the Jaitaran Hospital. As soon as he reached there the first information report was handed over to him by Raghuraj Singh. He then sent a written request to the Magistrate, Jaitaran, to record the dying declaration of the victim. Ex. P. 9 is the letter of request. The learned Sessions Judge seems to think that since Raghuraj had become unconscious at the sight of his brother's injury in the hospital, the first information must have been given to Rehmat Ali after he had already taken steps to call for the Magistrate. In other words, according to the learned Judge the investigation of the case had started already when the police officer got the report of Raghu Raj Singh. Having examined the evidence carefully we are not inclined to accept this view of learned Sessions Judge. It is true that Rehmat Ali had received a verbal message from the doctor of gunshot injury to the Kanwar of Lototi on which he left for the hospital; but this information was very vague; it conveyed no knowledge of any offence; and except going to the hospital he had done nothing more till then. His evidence definitely is that only when he reached the hospital he received the first information report from Raghuraj Singh and he recorded the statement of the informant. He also prepared a report of the injuries on the body of Umaid Singh and then sent a letter to the Magistrate to record the dying declaration of the victim. He denied the suggestion that he obtained the first information report only when Ummaid Singh started for Jodhpur and the dying declaration had been recorded. He also denied the suggestion that after the dying declaration had been recorded the first information report was dictated by Mr. Qurreshi. He says that when he reached the hospital Raghuraj Singh was in his senses and no injections were given to him by the doctor in his presence. It may be that, as Dr. Sohan Lal deposed, Raghuraj had become unconscious at the sight of his brother's injury in the hospital and took several minutes to regain his senses; but Raghuraj himself says that he became unconscious in the ho:pital ten minutes after reaching there and he regained his senses between 4-30 and 4-45 P. M. We have no doubt, therefore, that Rehmat Ali recorded this first information report before he took any further steps in the investigation or before he wrote that letter to the Magistrate for recording the dying declaration of the victim. There was no suggestion made to Rehmat Ali that the first information report was given to him after he had already sent for the Magistrate. The report itself appears to have been handed over to the Head Constable at about 6 P. M. though he appears to have instituted the first information on the basis of the report after returning to the Thana at about 7-30 P. M. It follows that the first information report is admissible in evidence and is not hit by sec. 162 of the Code of Criminal Procedure, as erroneously held by the learned Sessions Judge. This report fully bears out the statement in the dying declaration. Apart from this there is also some reliable oral evidence which lends support to the prosecution case and to which we shall presently refer.
(3.)THE oral evidence is largely of an unsatisfactory nature. Pratap Kanwar, the wife of the appellant, and Raghuraj Singh, his younger son, who, according to the dying declaration and the first information report were eye-witnesses to the occurrence have changed their statements in Court, and as held by the learned Sessions Judge told lies to screen the offender. Nothing better could be expected from witnesses of that character in view of their close relationship with the appellant. We have already dealt with the evidence of Raghuraj Singh and will advert to the evidence of Pratap Kanwar at later stages. THEre remains, however, the evidence of some witnesses which is quite worthy of credit and deserves notice. At the outset is the statement of Mst. Taj Kanwar, the daughter of the deceased by his first wife. THE girl is about ten years of age and though young, the learned Sessions Judge rightly held that she was a competent witness and gave natural and intelligent answers. This is evident from some of the preliminary questions that were put to her. THE girl after the death of her mother used to stay mostly with her maternal grand-mother at Bagru as we already know she had been brought by her father only a day before the occurrence. Her presence at Lototi on that day is admitted not only by Girdhar Kanwar, the wife of the deceased, and Rajendra Kumari, his sister, but also by Pratap Kanwar, his mother. This girl, as the evidence of Rajendra Kumari shows, was already present with her father in the room of the appellant when the occurrence happened. THE widow of the deceased, Girdhar Kanwar, also says that Taj Kanwar with her younger brother Robin (son of Girdhar Kanwar) had gone to the Thakur's room with their father. This girl deposes that she was in the room of her grandfather (Dadosa) when the pistol was fired. She also deposes about the quarrel between her father and the appellant about some money and that the pistol was lying on a sofa beneath the pillow oh which the grand-father was sitting. She says that her grand-father took out the pistol and fired thrice at her father. Her father received one pistol shot in the abdomen, one fire hit the door and another went straight in tank. She says that at that time her Chhota Kakosa (her uncle) and her grand-mother were also present. THE learned Sessions Judge has, however, considered it safe not to place reliance upon the evidence of this child witness because of certain confusions in her statement. THE first confusion pointed out is that she did not actually know whether the first shot hit the father or the second or the third, and she admitted that she learnt only from her father's sister Rajendra Kumari that the first shot hit her father. In her examination-in-chief it does not appear that she said that the first shot hit her father. All that she says is that her father received one pistol shot in abodmen and, therefore, there is no real discrepancy in her evidence on that point. THE fact that she plainly admitted what she learnt from her father's sister shows that her deposition in Court was unsophisticated and natural and was not the result of any tutoring. THE other confusion pointed out in her statement is that she went to the room of the appellant with Pratap Kanwar, Rajendra Kumari and Girdhar Kanwar, which, as the learned Sessions Judge observes, was not believable "because Rajendra Kanwar and Pratap Kanwar reached after the two shots had already been fired". Pratap Kanwar in the above quotation is apparently a mistake for Girdhar Kanwar. Earlier in her statement she had definitely said that her father and she went together. THE confusion may be due to the fact that the learned Session Judge allowed the cross-examiner to put involved questions to the child. In all fairness the questions ought to have been split up before they were put to the girl. It often happens that when questions of this kind are put, even adult witnesses give confusing answers and Judges have from time to time warned against such a practice being countenanced by courts of law. Before questions in cross-examination are put to witnesses it is the duty of the Court to see whether the question put involves a number of other questions and then split up the question and ask the witness to answer1 them in their proper sequence. In that event there is no likelihood of any confusion. Getting an answer to an involved question in monosyllables is bound to lead to confusions. Another point which has been urged against the acceptance of the evidence of this child witness is that on her own admission it appears that the Thanedar was with her the earlier night and in the morning she came to Court in a Tonga with the Thanedar. This by itself is not sufficient to discredit her testimony. She had to be escorted to Court by someone and in the circumstances of this particular case the Thanedar had to be extra careful in not leaving the work to the sweet mercies of her relations. THEre is no suggestion made to the Thanedar that he had tutored this girl and having examined her evidence with care we reel that in the main her statement is genuine and true, though there are a few confusions here and there. She proves that her grand-father, the appellant, was responsible for causing injury to her father with gunshot We are, therefore, not inclined to reject the testimony of this girl altogether.
Next is the evidence of Mst. Girdhar Kanwar, the widow of the deceased. She has given details of the events which appended both in the morning and in the after-noon to the extent that she had personal knowledge of the matter and we feel no hesitation in accepting her testimony, which materially bears out the prosecution story. Leaving aside what happened earlier in the morning, the relevant part of her evidence is that at time of the occurrence she and Rajendra Kumari were in her room. Her husband, who had been expressly sent for, the appellant, and Raghuraj Singh were in the appellant's room. Taj Kanwar and her little brother Robin also were in the appellant's room then. She suddenly heard a noise (halla) coming from Thakur Sahib's (the appellant's) room. Then she and Rajendra Kumari went towards that room. Rajendra Kumari went much ahead, but she herself stayed near the stairs and heard loud discussions (bolchal), though in the commotion (khalbala) she could not clearly make out who spoke what. She at once heard the report of a pistol fire in that room followed by a second pistol fire. Then she entered Thakur Sahib's room and by that time there was a third fire. She noticed the pistol in the hand of Thakur Sahib, the appellant. He was standing near the sofa chair and her husband was standing to his right with bleeding injury in the abdomen. Thakur Sahib was holding the handle of the pistol. She, her mother-in-law, and others caught hold of his hand, while her husband was holding the barrel of the pistol. She says that she saw with her own eyes that the appellant fired the third shot as soon as she stepped into the room. They snatched the pistol from the appellant's hand and then she helped her husband out of the room to the adjoining terrace, when and latter Narainsingh, Raghurajsingh and others took charge of her husband. Her evidence is completely in accord with the dying declaration of her husband, except in one or two small matters on which much stress has been laid by the learned counsel for the appellant. The first discrepancy pointed out is that while she says that she took out the cartridges from inside the 12 bore gun and then her husband took the gun to Thakur Sahib's room, the statement in the dying declaration is that in the appellant's room there was a 12 bore gun lying which was loaded and Ummaidsingh unloaded the gun and threw it away. It is not clear from the evidence whether the loaded 12 bore gun to which reference has been made in the dying declaration was the same 12 bore gun which Girdhar Kanwar is said to have unloaded and given to her husband, before it was taken to the room of Thakur Sahib. Her evidence about the gun is that when she, her husband, Raghurajsingh, her Nanad (husband's sister), and her daughter were about to begin their meals and the meals had been served, the appellant called Raghuraj saying that her husband had taken away a gun also and that it should be returned to the appellant. Her husband told Raghuraj to inform the appellant that he needed the gun as he was going to Bhikdai for games shikar, but Thakur Sahib insisted that the gun should be brought back; and then her husband wanted to take the gun to Thakur Sahib personally so that he would be able to bring it back. Admittedly this gun was also a 12 bore gun. There may be some other 12 bore loaded gun in the room or there may be some lapse of memory on the part of this woman, when deposing in Court in February, 1958, long after the incident, in thinking that she had unloaded the gun herself. The question might have been of some importance if there was any plea or suggestion on record that the appellant had fired in self-defence. As it is, it has little or no importance so far as the material part of the prosecution case is concerned; and we do not feel that on account of this little discrepancy we should not rely upon the testimony of this lady, whose evidence is otherwise quite reliable and untainted. Another little discrepancy to which reference has been made is about the time when her husband is said to have caught hold of the barrel of the pistol in order to deflect the shots. She of course was actually not in the room when the second shot was fired and she states that her husband caught hold of the barrel of the pistol after the third shot had been fired, while the dying declaration shows that after the first shot the victim hastened to catch hold of the barrel evidently to deflect and avoid the aim of the other shots fired by the appellant. This discrepancy is again very natural and does not detract from the veracity of the evidence given by this lady. Another adverse comment made against the evidence of this witness is that she describes the injury as being on the right side of the abdomen, whereas in fact the injury is on the left side. The victim was not bare bodied but was wearing clothes and it appears that on account of the injury the clothes were smeared with blood. It is, therefore, not unreasonable to think that she could not exactly locate the injury at the time and took it to be on the right side. She was only for some time by the side of her husband and helped him out to the terrace in that injured condition before he was taken charge of by his younger brother and Narainsingh and others. Therefore, any such mistake as to the exact location of the injury, though correctly described to be in the abdomen, was not unnatural. If at all, it merely shows that she faithfully described her own observation of the occurrence.
Our attention in this connection has been drawn to the evidence of Narainsingh (D. W. 1) and Harisingh (D. W. 2), who are Chhut Bhaiyyas of the Thikana and, as found by the learned Sessions Judge, have lied on various points with a view to exonerate the appellant who is the Thikanedar of Lototi. Narainsingh deposed that when he heard the reports of gun-fire in quick succession, he ran towards the room of the appellant and received the injured Ummaidsingh on the terrace and supported him to the latter's room. He, however, says that from the terrace he saw the appellant, his wife and Ummaidsingh inside the room; but he did not see Girdhar Kanwar and Rajendrakumari. The statement of Harisingh is to the same effect. In other words, their evidence implies that Girdharkanwar was not there at the time. Girdharkanwar has of course stated that she helped her husband up to the terrace and there Narainsing and others took charge of him and took him down-stairs. These witnesses have been belied even by the statements of Rajendra Kumari and Pratap Kanwar who have been declared hostile by the prosecution and were cross-examined. Rajendrakumari consistently stated that Girdharkanwar and she herself helped the deceased up to the terrace; and even Pratapkanwar, the wife of the appellant, deposed to the effect that as soon as the first shot was fired, Girdharkanwar and Rajendrakumari had reached inside the room. It was but natural that on hearing the report of gunshot Girdharkanwar must have rushed to the room of the appellant with a view to save and help her husband out of the room. These witnesses examined for the defence have further tried to support the theory of suicide. According to Narainsingh he asked Ummaidsingh how all that had happened and the latter replied that he had shot himself out of "gussa" (anger) and that he would not say anything more. He asked the witness to arrange immediately for a motor to take him to the hospital. Hari Singh also stated that Narainsingh asked Ummaidsingh how the incident took place, and the deceased said that he had shot himself. He further said that when he asked Ummaidsingh why he had shot himself, the latter replied that he had needed urgently a sum of Rs. 2,000/-and asked his father to give the amount to him but since the father refused to do so, he shot himself. According to Hari Singh this disclosure was made by the witness in pursuance of Narainsingh and Arjunsingh. Narainsingh nowhere said in his statement that Ummaidsingh referred to any such dispute with his father for a sum of Rs. 2,000/ -. On the contrary, Narainsingh said that Ummaidsingh refused to say anything more and insisted on making arrangements for taking him expeditiously to the hospital. This is a material contradiction in the evidence of the witnesses as pointed out by the learned Sessions Judge and destroys the value of their evidence. It is further to be noticed that in his statement before the police (Ex. P. 19) Narainsingh made no reference to this suicide story and when confronted with that statement he merely denied that he made any such statement. In our opinion the learned Sessions Judge has given very sound reasons for disbelieving the evidence of these witnesses. The evidence of defence witness Kalyan is equally worthless. None of the witnesses Narain Singh and Harisingh said that he was present when the deceased made the alleged disclosure of having shot himself. Moreover, according to Kalyan the statement is alleged to have been made when the deceased was taken out of his room and was about to be put in a truck to be taken to hospital which is in conflict with the evidence of the other two. These are, therefore, thoroughly unreliable witnesses, whose evidence has been rightly discarded by the learned Sessions Judge. The evidence of Pratapkanwar, the wife of the appellant, as pointed out by the learned Sessions Judge, is also unreliable. She has tried to screen her husband and set up a false story of suicide; but even she does in some measure support the dying declaration. She admitted that there was a dispute between the father and the son for a sum of Rs. 2,000/- at the time of the occurrence, and we have noticed that she does speak of the arrival of the sister and the wife of the deceased on hearing the report of pistol shot. Rajendra Kumari also has a double allegiance, one to her father and the other to her brother from her husband's side. In other respects her evidence also has to be read between the lines; but even she bears out the part of the statement in the dying declaration that she and the wife of the deceased both entered the room when they heard pistol shots and assisted in snatching away the pistol from the hands of the appellant; and that when she entered the room she found that her brother had a bleeding injury on the abdomen and that he was also trying to snatch the pistol from her father's hand, and so did her mother. On all this material, therefore, there cannot be the least doubt that the appellant was guilty of the crime of shooting the deceased with the pistol and causing the bleeding injury in the abdomen to which the deceased ultimately succumbed.
Apart from the alleged discrepancy between the dying declaration and the statement of Girdharkanwar, to which reference has been already made, in respect of the loading or unloading of the 12 bore gun, the dying declaration has been attacked on yet another ground. Criticism is directed against the statement in the dying declaration that at the time the pistol shots were fired the deponent was standing at a distance of 2 or 3 feet from his father. Stress is laid on the evidence of Dr. Harakraj where he says that "the skin around the wound was charred and scorched and was blackened". It is argued that this could not have happened if the deponent was, as stated by him, standing at a distance of 2 to 8 feet from the assistant. Dr. Harakraj himself says that the skin around the wound would get charred and blackened if the shot were fired within a range of four feet; but the learned counsel for the appellant has placed reliance upon the evidence of Mr. Dixit, a ballistic expert, and also upon certain Medico-Legal Texts. According to Mr. Dixit, scorching could take place only if the revolver was held two to three inches from the target and not more, and blackening could take place upto 6" to 10" and not more if black powder was used. For the defence reliance has also been placed upon the opinion of Major Sir Gerald Burrad in his book "identification of Firearms and Forensic Ballistics"; while for the prosecution reliance has been placed on Taylor's Medical Jurisprudence and Modi's Medical Jurisprudence and Toxicology which appear to support the opinion of Dr. Harakraj, The learned Sessions Judge has very elaborately discussed the various texts bearing on the point and we do not feel inclined for the purposes of this case to embark on any such examination of the matter. Even if Mr. Dixit's opinion is accepted, one has to remember that after all the statement about the distance between the victim and the assailant at the time of the occurrence as given in the dying declaration by Ummaid Singh was merely a rough estimate. It is obvious that the talk between the father and the son must have been going on at close quarters and the argument of the defence counsel seems to ignore the posit on of the arm and the length of the barrel when the hand was uplifted to fire the shots. There can be no doubt that the position of the arm and the barrel would cover much of the small space between the assailant and his victim and that the barrel must have been very much close to the body of the victim when the shot was fired. It Las also been argued that at the time when the pis of was recovered there were only two empty shells in the chamber. The pistol was actually handed up by Raghuraj to the police at a much later date on the 18th of June and the interval may well explain the absence of one of the cartridges in the chamber. Our review of the evidence shows that there were actually three shots fired by the accused, as stated in the dying declaration, two in quick succession and the third after Girdhar Kanwar and Rajendra Kumari had also entered the appellant's room.