- (1.) G. P. Mathur, J. Baibir has filed this appeal against the judgment and order dated 23-3-1979 of IV Additional Sessions Judge, Etah in S. T. No. 262 of 1978 by which he has been convicted under Section 302, IPC and has been sentenced to imprisonment for life. Two other persons, namely, Ram Singh and Shahab Uddin were also changed along with the appellant under Sec tions 302/34, IPC but they were acquitted.
(2.) THE charge against the accused was that at about 4 p. m. on 1-12-1987 he fired upon the deceased Surajpal by a country made pistol. THE prosecu tion in support of its case examined in all 8 witnesses and also relied upon dying declarations made by the deceased. THE defence of the appellant was that the case of the prosecution was false and he had been implicated on account of village party bandi (groupism ). No evidence was adduced by the appellant. THE learned Sessions Judge believed the prosecution case and con victed and sentenced the appellant as stated above. Ram Singh and Shahab Uddin who were not alleged to have caused any injury and were charged under Sections 302/34, IPC were acquitted. The F. I. R. of the incident was lodged by the deceased Surajpal himself at 4. 45 p. m. on 1-12-1977 at police station Amapur on the basis whereof a case was registered as crime No. 241 of 1977 under Section 307, IPC. The detailed version given in the FIR would be considered later as the same is relied upon as dying declaration by the prosecution. After the F. I. R. was lodged, the deceased Surajpal was taken to P. H. C. was lodged, the deceased Surajpal was taken to P. H. C. Amapur where he was medically examined at 5 p. m. by P. W. 3 Ashok Kumar Doctor found the following ante mortem injuries on the body of Surajpal. (1) Gun shot, wound 3/4 cm. x 3/4 cm. on the abdomen, 9 cm. below umbilious, around the wound, there was blackening, margins inverted, would was bleeding. This wound appeared to be wound of entrance. (2) Gun shot wound of exit 1 cm. x 1 cm. over left hip, margins everted no blackening around the wound. " In the opinion of the doctor the injuries were caused by gun shot and were fresh in duaration. He further advised X-ray examination of the injuries and the case was referred to district hospital. After the case had been registered at the police station, P. W. 4 Ganesh Chandra Varma S. I. commenced investi gation. He received information that Suraj Pal had been taken to Bus-stand for proceeding to Etah hospital. He therefore, went to the Bus-stand and recorded the statement of Suraj Pal under Section 161, Cr. P. C. A copy of which has been filed as Ex ka 2 on the record. He recorded statement of some witnesses on 2-12-1977, conducted spot inspection and collected plain and blood stained earth from the spot. Subsequently the investigation was taken over by P. W. 6 Fateh Alam Khan who completed the same and submitted charge-sheet against the three accused, At 11. 55 a. m. on 2-12-1977 P. W. 8 Saved Mahphooz Ali Executive Magistrate recorded the statement of Surajpal deceased in the district hospital. A copy of which has been filed as Ex. Ka 19 on the record. It appears that Suraj Pal sucumbed to his injuries in the district hospital on 2-12-1977 and thereafter post mortem examination on his body was performed by P. W. 7 Dr. Virendra Srivastava at 11. 45 a. m. on 4-12-1977. Following ante-mortem injuries were found on the body of the deceased : (1) Gun shot wound 1/2 cm. x 1/2 cm. on the public region. 11 cms below and 2 cms. left to unabilious wound, of entry. (2) wound of exit 1 cm. x 1 cm. on the left buttock 6 cm below the pelvis bone and 5 cms. left to natal claft. On internal examination, Doctor found that the walls of abdomen were punc tured and peritoneum had also been punctured. Cavity contained blood and pus. On further direction intestine was found punctured on left lower quarter and at rectum. Cavity of abdomen was full of black fluids. In the opinion of the doctor the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. The prosecution in order to establish the case against the appellant mainly relies upon the dying declarations made by Surajpal deceased. It is, therefore, necessary to consider them in detail.
(3.) AS stated earlier the F. I. R. of the incident was lodged by the deceased Surajpal himself at 4. 45 p. m. on 1-12-1977. The version given in the F. I. R. is as follows "my name is Suraj Pal, father's name is Sunder Singh Dhobi and am resident of Shikanderabad. I went to Munir Nagar along with my elder brother P. W. 1 Roshan to collect clothes. When I reached near the outer verandah (bailthaka) of accused Shahab Uddin. I saw that all three accused, namely, Balbir Ram Singh and Shahab Uddin were sitting there, Balbir said to me that I had not offered him Salam. On this I said that salams are offered to elderly people. On this all three accused stood up and Balbir said that Dhobi (Washerman) should be set right and he fired from his pistol upon me which hit me on the left side. All the three accused there after lifted me and left me near the well of Lakhan Singh. Roshan and Manphool Singh brought me to the police station. The incident took place at 4 P. M. It is noted in the F. I. R. (Ex. Ka 7) that the same read over to Surajpal and thereafter he put his thumb- impression thereon.;