Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Testimonies Of Credible Witnesses Cannot Be Discarded In Absence Of Convincing Reasons - Appeal Dismissed.
JUDGEMENT TITLE : Shiv Raj Singh Vs. State On 13/02/2014 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 512 OF 1989
CORAM : Hon'ble Sheo Kumar Singh,J. And Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
A.F.R.
CRIMINAL APPEAL NO. 512 OF 1989
Shiv Raj Singh ............... Appellant
Vs.
State Of U.P. .................... Respondent

Hon'ble Sheo Kumar Singh, J.
Hon'ble Vinod Prasad, J.
(Delivered By Hon'ble Vinod Prasad, J.)
This Appeal By The Sole Appellant Shiv Raj Singh Is Directed Against The Impugned Judgment Of Conviction Under Section 302 I.P.C. And Order Of Sentence To Serve Life Imprisonment And To Pay A Fine Of Rs. 5,000/- And In Default Of Payment Of Fine To Serve Simple Imprisonment For Another Six Months R.I., Therefore, Recorded By Additional Sessions Judge/ Special Judge (E.C.Act), Etawah Vide Impugned Judgment And Order Dated 9.2.1989 Passed In S.T. No. 147 Of 1987, State Vs. Shiv Raj Singh Relating To Crime No. 1 Of 1987, P.S. Jaswantnagar, District Etawah.
The Underlying Facts Are That On The New Years Day 1.1.1987 At 10 A.M., Informant Suba Singh And His Wife Smt. Keshkali Were Sitting At Their Door Along With Their Son-in-law Gulab Singh (deceased) Son Of Ram Pal Singh Resident Of Village Sagra, P.S. Naya Gaon, District Bhind, M.P. And Their Samdhi Shiv Raj Singh Resident Of Village Kushalpur, P.S. Bewar, District Mainpuri And Were Chatting Amongst Themselves Regarding Relationship. Meanwhile, Appellant Shiv Raj Singh Holding A Licensee Gun Of His Brother Ati Raj Singh Came To The Spot And Started Hurling Various Abuses To The Informant, Which Affronted His Son-in-law Gulab Singh, Who Interdicted Appellant To Refrain From Such A Faux Pas. Appellant Thereafter Threatened By Exhorting To Settle The Scores With The Informant And Gulab Singh And No Sooner Thereafter Loaded His Gun With A Cartridge, Aimed At Gulab Singh And Fired A Shot, Causing Injuries On The Left Side Hand, Torso, Armpit And Thigh Of Gulab Singh. Informant And Other Present People Raised Sudden Shrieks And Tried To Save The Injured Gulab Singh. Hearing Their Shrieks, Other Villagers Present In The Vicinity Also Challenged The Appellant Who Then Escaped Towards His House. The Incident Had Occurred Because The Appellant Had A Grudge Against The Informant And His Relatives For Many Reasons.
Informant Got The F.I.R. Ext. Ka-1 Penned Down By Mahendra Kumar And Alongwith The Injured Carried On A Cot By Four Persons Covered A Distance Of 18 Kilometers West To The Police Station Jaswantnagar, Etawah, Where He Lodged His F.I.R. The Same Day At 5.15 P.M. As Crime No. 1 Of 1987, Under Section 307 I.P.C. Naming The Appellant As The Sole Perpetrator Of The Crime.
H/C 65 Nawab Khan P.W.4 Registered The Crime By Preparing Chik F.I.R. Ext. Ka-3 And GD Rapat No. 29 Ext. Ka-4. The Aforesaid Head Constable P.W.4 Got Prepared Chitthi Mazrubi (letter Requesting For Medical Examination) From C/C Jagdish Prasad Ext. Ka-5, Which Was Then Signed By In-charge Inspector SSI R.R. Punia And Thereafter P.W.4 Dispatched The Injured Along With Constable Sunder Lal Shukla For His Medical Examination To PHC Jaswantnagar. Following Day Morning (2.1.1987) At 8 A.M., P.W. 4 Received The Information Regarding Demise Of Injured Gulab Singh And, Therefore, He Converted The Registered Crime From Under Section 307 To 302 I.P.C. Vide Conversion GD Ext. Ka-6.
SI Mohd. Islam P.W. 5 In Whose Presence, Crime Was Registered, Embarked Upon The Investigation, Copied Chik And GD And Recorded The Statement Of The Injured Victim, Which Statement By Virtue Of Death Of The Injured Gulab Singh, Is His Dying Declaration Ext. Ka-7. Head Moharir Nawab Khan And Scribe Mahendra Kumar Thereafter Were Interrogated And Their Statements Were Recorded. Coming To The Scene Of The Incident In Village Baooth, I.O. Conducted Raid To Apprehend The Appellant But Failed In That Attempt. He, However, Searched The Accused's House And Prepared Search Memo Ext. Ka-8 And Thereafter Recorded The Statements Of Search Witnesses Samar Bahadur And Sher Bahadur. P.W. 5 Remained In Village For The Entire Night And On 2.1.1987 Conducted Spot Inspection At The Pointing Out Of The Informant And Prepared Site Plan Ext. Ka-9. From The Place Of The Incident, Pellets, Wad, Blood Stained And Plain Earth, Blood Stained Stings Of The Cot Were Recovered And Collected And Recovery Memos Thereof Exts. Ka-10, Ka-11 And Ka-12 Were Prepared. The Wad And The Five Pellets Recovered From The Spot Are Material Exts. 1 And 2, Plain Earth Is Material Ext. 3 And Blood Stained Earth Is Material Ext. 4. Blood Stained Stings Of Cot Is Material Ext. 5. Again A Raid Was Conducted By The I.O. To Apprehend The Appellant But Without Any Success. Thereafter Witness Shiv Ram Singh Was Interrogated And Subsequent Thereto Autopsy Report Of The Deceased Was Copied By The I.O. / P.W. 5. Further Investigation Thereafter Was Continued By In-charge Inspector Satyaveer Solanki, Who Concluded The Investigation And Forwarded Charge Sheet Ext. Ka-13 Against The Appellant On 30.1.1987.
Autopsy On The Cadaver Of The Deceased Was Performed By Dr. M.C. Gupta, S.M.O. District Hospital, Etawah On 2.1.1987 At 2.30 P.M. Who Had Noted Following Ante Mortem Injuries Sustained By The Deceased:-
"1. Lacerated Gun Shot Wound Of Entry 16cm X 8cm X Bone Deep With Presence Of Charring On Flexion And Lateral Aspect Of Left Upper Forearm, Direction Forward Backward.
2. Gun Shot Wound Of Entry 1cm X 1cm X Cavity Deep On Front Aspect Of Left Chest 10cm Down From Left Nipple On Dissection Underlying Ribs 5th And 6th Fractured. Margins Inverted.
3. Gun Shot Wound Of Entry 1cm X 1cm X Cavity Deep On Front Aspect Of Left Chest, 6cm Above Injury No. 2, Direction Outer Posteriorly, Margins Inverted.
4. Multiple Abrasion In Area 5cm X 3cm On Front Of Left Side Of Chest 7cm Down From Left Nipple.
5. Multiple Gun Shot Wound Of Entry In An Area 5cm X 4cm X Bone Deep Varying In Size 1cm X 1cm On Front Aspect Of Left Thigh. Margins Inverted.
6. Multiple Gun Shot Wound Of Exit In Area 12cm X 6cm X Bone Deep Margins Everted, Communicating Injury No. 5 On Dessection Underlying Bone Femur Fractured."

On External Examination, Autopsy Doctor Had Found The Deceased To Be 26 Years Of Age, Who Had An Average Built Body And Rigor Mortis Was Present On His Upper And Lower Extremities. His Eyes Were Half Opened And No Decomposition Had Set In. 5th And 6th Ribs Were Fractured, Pleura On The Left Side Was Lacerated Along With Bronchi. Left Lung Too Was Lacerated And A Litre Of Blood Fluid Was Present In The Deceased Thoracic Cavity. Faecal Matter And Gases Were Present In Small And Large Intestines. According To The Doctor, Cause Of Deceased Death Was Shock And Hemorrhage Due To Sustained Injuries. Doctor Had Recovered A Shot From The Left Lung And Other Metallic Shots From Back Of 5th And 6th Ribs Of The Deceased, Which He Had Dispatched To The Police. From The Cadaver Of The Deceased, An Underwear, Pazama, Two Shirts, One Jerey Were Removed And Handed Over To The Constables Sheetla Prasad And Ram Naresh, Who Had Earlier Brought The Corpse Of The Deceased To The Doctor.
On The Strength Of Submitted Charge Sheet Ext. Ka-13, Appellant Was Summoned And After Observing Due Procedural Formalities, His Case Was Committed To The Sessions Court For Trial, Where It Was Registered As S.T. No. 147 Of 1987, State Vs. Shiv Raj Singh. Aforesaid Trial Was Transferred To Additional Sessions Judge, Etawah For Prosecuting The Accused.
Appellant Was Charged With Offence Under Section 302 I.P.C. On 28.11.1987 And Since He Abjured That Charge, Pleaded Not Guilty And Claimed To Be Tried That His Trial Commenced During Course Of Which Prosecution Examined Informant Suba Singh P.W. 1, Shiv Raj Singh P.W. 2 As The Two Fact Witnesses.
Autopsy Dr. M.C. Gupta P.W.3, Constable Nawab Khan P.W.4, I.O./S.I. Mohd. Islam P.W.5 Were Examined As Formal Witnesses. Besides The Oral Testimonies Of The Aforesaid Persons, Prosecution Relied Upon Various Documentary Evidences In The Form Of Exhibits Mentioned Herein Before And Also Material Exhibits.
In Examination Under Section 313 Cr.P.C., Appellant Denied The Incriminating Circumstances Put To Him And Claimed His False Implication Because Of Party Factionalism. He Also Stated That Both P.W.1 And P.W.2 Are Relatives And They Have Deposed A Cooked Up Version.
As Already Noted, Learned Trial Judge Found The Guilt Of The Appellant Established To The Hilt Clear Of All Doubts And, Therefore, Convicted Him For The Charge Of Murder And Sentenced Him To Imprisonment For Life With Rs.5,000/- Fine And In Default Thereof To Serve Simple Imprisonment For Another Six Months. In Case Of Deposit Of Fine, Rs.4000/- Out Of It Was Awarded As Compensation To The Widow Of The Deceased Gulab Singh Vide Impugned Judgment And Order, Which Has Now Been Challenged By The Appellant In The Instant Appeal.
This Appeal Was Filed In The Year 1989 And Since Nobody Had Appeared To Argue It For The Appellant, That Applying The Law Laid Down By The Apex Court In Bani Singh And Others Vs. State Of U.P. AIR 1996 Supreme Court 2639, We Had Appointed Sri I.K. Chaturvedi, Learned Advocate As Amicus Curiae To Argue The Appeal And Have Heard Him For The Appellant And Smt. Raj Laxmi Sinha, Learned AGA For The State.
Sri Chaturvedi, Learned Amicus Curiae Raised Many Contentions But His Primary Arguments Mainly Were Directed And Centered Around Two Facts, Which He Castigated Vehemently; Firstly That The Deceased Has Lost His Life Because Of The Delay Caused In Providing Him Immediate Medical Attendance And Secondly, That The Dying Declaration, Which Is In The Form Of 161 Cr.P.C. Statement Recorded By The I.O. P.W.5 Was Fabricated And Cooked-up And No Essential Formalities For Recording The Dying Declaration Has Been Observed By The I.O. Besides Aforesaid Two Pivotal Submissions, Learned Amicus Curaie Also Contended That Only Two Related Witnesses Have Been Examined By The Prosecution And No Independent Witness Of The Locality, Though Alleged To Be Present At The Scene Of The Incident, Came Forward To Lend Credence To The Prosecution Version And, Therefore, The Entire Prosecution Story Seems To Be Mendacious And Feigned. It Was Also Contended That P.W.2 Was Not Present At The Spot And Subsequent To The Murder, That He Was Sent For And Was Made A Witness Of The Incident. Next It Was Submitted That Incident Had Occurred In The Dark Hours Of The Night Without Witnessing Of It By Anybody And, Therefore, Prosecution Version Is A Prevaricated Cooked Up Story, Liable To Be Discarded. It Was Next Submitted That The Arch Enemy Informant P.W.1 Was Present At The Scene Of The Murder And, Therefore, There Was No Reason For The Appellant To Shoot Down The Deceased Without Any Motive, Rhyme Or Reason As With The Deceased, Appellant Had No Scores To Settle Down. It Was Meekly Further Submitted That In Any Case, Since The Incident Preceded With Hurling Of Abuses And It Is Difficult To Believe That The Deceased Would Not Have Retorted Appellant's Abuses, That Out Of Grave And Sudden Provocation That The Appellant Had Fired A Single Shot At The Deceased And, Therefore, His Guilt Do Not Travel Beyond Section 304 Part (I) IPC Of Culpable Homicide, Not Amounting To Murder Because Of Grave And Sudden Provocation And, Therefore, In Case Appellant Is Not Acquitted Of The Murder Charge, His Crime Should Be Palliated To One Under Section 304 Part (I) IPC And He Be Sentenced Only To 10 Years R.I. With Some Fine And His Conviction Under Section 302 IPC And Imposed Sentence Of Life Imprisonment Be Scored Out.
Learned AGA Contradicted Appellants' Submissions And, Arguing To The Contrary, Urged That It Is A Day Light Incident With Consistent Medical Evidence And Without Any Motive Worth In Name, Appellant Has Shot Dead An Innocent Person In The Prime Of His Youth Being 26 Years Of Age. She Pointed Out That The Deceased Had Arrived At His In-laws House The Previous Evening To Accompany His Wife And Only Because He Inhibited The Appellant To Refrain From Hurling Filthy Abuses To His Father-in-law In His Presence That His Innocent Act To Save The Prestige Of His Father-in-law Costed Him His Life. There Is No Evidence On Record That But For Nixing The Appellant From Vetuparizing The Father-in-law Deceased Had Entered Into Any Verbal Exchange Of Abuses With The Appellant And, Therefore, It Cannot Be Said That The Incident Had Occurred In The Heat Of Passion Out Of Self Control Because Of Exchange Of Abuses And Grave And Sudden Provocation Preceded The Incident. It Was A One Sided Affair With The Prosecution Side Only Objecting To The Abuses Disgorged By The Appellant And His Rankled Act And Temerity Cannot Be Applied To Anoint Any Benefit To The Appellant As At All Times, He Was At Fault And Was In A Pugnacious Mood. Arriving At The Door Of The Informant Hurling Filthy Abuses At The Morning Time Armed With A Gun Carrying A Cartridge With Him, Loading His Gun, Aiming At The Deceased And Shooting Him Down, All The Facts, Cumulatively Are Indicative Of A Clear Intent To Commit Murder And, Therefore, The Appeal Sans Merit And Deserves To Be Dismissed.
We Have Bestowed Our Thoughtful Considerations On Rival Contentions. From Vetting Of All The Evidences Of Both The Fact Witnesses Informant P.W.1 Suba Singh And His Samdhi Shiv Raj Singh P.W.2, We Have Not Been Able To Fathom Out Any Damaging Statement On The Basis Of Which, It Can Be Said That They Were And/ Or Could Not Be Present At The Spot Nor Had Seen The Incident. Natural Presence Of These Witnesses At The Incident Scene In The Early Hours Of The Morning Is Established Beyond Doubt. Informant In His Depositions Has Clearly Corroborated And Supported His F.I.R. Version And Had Stated That He Was Sitting Along With His Wife On The Same Cot On Which P.W.2 Was Sitting. Deceased Was Sitting On Another Cot And Informant And P.W.2 Were Chatting With Each Other. It Has Further Been Evidenced That When The Deceased Proscribed The Appellant From Vetuparizing The Informant Then Appellant Had Loaded His Gun With A Cartridge, Aimed At The Deceased And Shot At Him. The Underlying Motive For This Entire Episode Was That The Appellant Was A Ruffian Or Knave And He Had Demanded Rs.6,000/- Two Or Four Days Ago The Incident From The Informant But Since The Informant Refused To Part With The Money And Oblige Him That Appellant Having A Grudge Against The Informant, Had Committed The Crime. From The Injuries Sustained By The Deceased Blood Had Tickled Down On His Attires And On The Ground. Injured Was Firstly Carried To Jaswantnagar Police Station After Two Or Three Hours Of The Incident On A Cot And It Was At The House Of Kishan Swaroop Master That The F.I.R. Was Got Penned Down By The Informant. P.W.1 Further Testified That In His Presence I.O. P.W.5 Had Recorded The Statement Of The Injured Deceased Gulab Singh And At That Time, He Was Fully Conscious And Was Speaking Clearly. Injured Was Dispatched To The District Hospital Etawah And Informant Was Asked To Stay Back At The Police Station, Where His Statement Under Section 161 Cr.P.C. Was Recorded. In The District Hospital Etawah Deceased Was Declared Dead. Inquest On The Cadaver Of The Deceased Was Performed By The I.O. On The Following Day And Inquest Memo Was Signed By The Informant Also. It Has Further Been Evidenced By The Informant That When He Refused To Satisfy The Illegal Demand Of Money By The Appellant Then He Was Threatened But For That Episode He Had Not Lodged Any F.I.R. Due To Fear. Some Omissions Have Been Asked From The Informant To Which, He Was Unable To Offer Any Viable Explanation. It Has Further Been Stated By The Informant That Four People Had Waded The Injured On A Cot To The Police Station. When Questioned Regarding Availability Of Any Transport, Informant Had Specifically Denied By Stating That Although The Road Is Metaled Road, Which Is At A Distance Of Four Furlongs From His Village But Only A Single Bus Plies On This Road, As His Village Is Within The Notorious Dacoity Affected Area. It Has Further Been Evidenced By P.W.1 That His Samdhi P.W.2 Is A Resident Of District Mainpuri At A Distance Of 20 Kos (40 Miles) And He Had Arrived The Previous Evening At 3 P.M. It Has Further Been Deposed That The Village Of The Deceased Is 25 Kos (50 Miles) From His Village And He (deceased) Had Arrived The Previous Evening At 4 P.M. For Accompanying His Wife Along With Him. It Has Further Been Stated That After Sun Rise They Were Sitting On The Cots At The Erected Pedestal. Informant Has Further Testified That In His Witnessing Appellant Had Loaded The Gun With A Cartridge And Before The Deceased Could Get Up, He Was Shot At By The Appellant, Who Had Made A Single Fire. It Has Further Been Stated That The Appellant Had Vetuperized For Two Or Three Minutes And In Between This No Neighbours Had Arrived At The Scene And Village People Came There Only After The Incident Was Over. It Was Further Deposed By The Informant That After Deceased Had Sustained Firearm Injury, He Remained Lying At The Ground For Fifteen Or Twenty Minutes And Thereafter, He Was Made To Lie Down At The Bed Over A Cot And In The Same Condition He Was Wayfared To The Police Station. Bed Was Also Got Blood Stained. It Is Also Evidenced That Injured Was Not Shrieking While He Was Being Tramped To The Police Station And His Only Anxiety Was To Reach The Hospital At The Earliest. It Has Further Been Stated That So Long As The Injured Remained At The Police Station, No Medical Aid Was Made Available To Him. Some Insignificant Trivial And Naff Questions Were Put To The Informant But Since They Do Not Dissipate The Genuineness Of The Prosecution Story Nor Affects The Credibility Of The Witness That We Do Not Consider It Essential To Mention Them. Informant Was Suggested That Deceased Was Shot At In The Night And He Had Not Witnessed The Incident And The F.I.R. Was Lodged Subsequently After Due Consultation And Deliberation And Because Of Party Faction Appellant Has Been Falsely Implicated To All Of Which He Has Emphatically Denied. P.W.1 Was Lastly Questioned On His Vocation And In Reply Thereto Informant Had Disclosed That He Was A Constable In M.P. Police Force From Where He Retired In The Year 1977. He Had Empathetically Rebutted Defence Suggestion That He Was A Perjurer And Was Giving A Mendacious Version.
P.W.2 Has Supported And Corroborated Informant P.W.1 On All Material Aspects Of The Matter And From Vetting Of His Cross Examination, We Do Not Find Anything Contrary To What Has Been Stated By The Informant. On The Other Hand, What Emerges From His Cross Examination Is That P.W.2 Have Plucked The Loop Holes, Which Had Occurred In The Testimonies Of The Informant. It Has Been Deposed By Him That The Deceased Was Sitting In A Loo Posture (ukudu) When He Was Shot At. It Has Further Been Deposed By P.W.2 That The Injured Had Sustained Injury On The Left Side Of His Body Who Was Firstly Brought To Jaswantnagar PHC, Where The Doctor After Examining Him Advised To Carry Him To The District Hospital Etawah As His Condition Was Getting Worsened And Deteriorated. Shiv Raj Singh P.W.2 Also Evidenced That On The Same Cot Deceased Was Carried From Village To The Police Station And Then To Jaswantnagar Hospital And From There To District Hospital Etawah. He Was Suggested That He Had Not Seen Any Incident And Being Relative, He Was Deposing A Myth And A Spurious Version To Which Suggestion By The Defence This Witness Has Denied Empathetically.
Thus, What Is Unambiguously Discernible From The Statements Of Both The Fact Witnesses Is That The Defence Has Not Been Able To Discredit Their Testimonies By Getting Elicited From Them Any Doubtful Piece Of Evidence. Both The Fact Witnesses Have Corroborated The Entire Prosecution Story With Sufficient Clarity And Confidence Inspiring Evidence. No Inconsistent, Incongruency Or Unnaturality Has Occurred In Their Depositions As To Cause Any Doubt On The Truthfulness Of Their Evidences. Sri Chaturvedi, Learned Amicus Curaie Has Castigated Their Testimonies For The Reason That No Independent Witnesses Had Arrived At The Incident Scene To Support Their Case But, To Say The Least, The Said Argument Is Very Gibberish And Was Harangued Only To Be Slated And Not To Be Considered In Depth. There Is No Rule Of Law Nor Of Prudence That Unless Independent Witnesses Support The Prosecution Story, It Cannot Be Believed. On The Contrary, There Was Absolutely No Reason For The Near Relatives Specially A Father-in-law To Implicate The Appellant Sparing Real Assailant In The Murder Of His Own Son-in-law, Who Had Arrived At His House Just The Previous Evening To Take Back His Wife. There Was No Enmity Between The Deceased And The Appellant Compelling The Father-in-law To Nail-in The Appellant In A Murder Incident. Presence Of P.W.2 At The Spot Cannot Be Doubted For The Reason That He Has Supported The Informant P.W.1 In All Significant Aspects And Main Issues Of The Incident. It Is Very Uncommon For A Samdhi To Involve Another Samdhi And Make Him A Witness Of A Murder Incident. There Was No Reason For P.W.2 To Take Side With The Informant And Give A Feigned Version Against The Appellant Had He Been Innocent. Castigation By Sri Chaturvedi, Therefore Is Hereby Repelled.
Coming To Another Limb Of The Argument That The Statement Of The Deceased Recorded By The I.O. Is A Fabricated Version, We Do Not Find Any Material On The Record To Support Such A Snipping. It Is Well Establish On The Record That By The Time Injured Had Arrived In Jaswantnagar Hospital, He Was Alive And Conscious. It Was From Jaswantnagar Hospital That He Was Carried To District Hospital Etawah. Statement Of The Injured Deceased Was Recorded Prior To That, And, Therefore, What Is Established Is That At The Time When The Statement Of The Injured Was Slated By The I.O., He Was Alive And Conscious. If The Accused Wanted To Take Advantage And To Castigate Recording Of Statement Of The Injured They Should Have Asked The Doctor Regarding The Failing Condition Of The Injured Which They Consciously Eschewed. The Appellant Has Also Not Taken A Chance To Examine The Doctor Of The Jaswant Nagar Hospital To Obviate His Difficulty And Get It Elicited From Him That When The Injured Was Examined By Him, He Was Not In A Fit State To Make Any Declaration. Only On A Bald Suggestion Without Bringing On Record Any Attending Circumstance Denting The Prosecution Version, The Prosecution Case Cannot Be Discarded As Mendacious.
I.O. Had Recorded 161 Cr.P.C. Statement Of The Deceased And, Therefore, The Castigation By The Learned Amicus Curaie That No Formalities For Recording Of The Dying Declaration Has Been Observed By The I.O. Dissipates As, For Recording An Interrogatory Statement Under Section 161 Cr.P.C., No Such Formality Was Required To Be Observed. It Is By Virtue Of Death Of The Deceased That His Statement Inked By The I.O. Becomes His Dying Declaration And A Relevant And Admissible Piece Of Evidence Under Section 32 Of The Evidence Act. Defence Counsel Had Not Made Any Serious Endeavour To Belie Such A Statement. It Is Recollected That It Is Neither Rule Of Law Nor Of Prudence That A Dying Declaration By Itself Is Insufficient To Record A Conviction. If It Is Found To Be Genuine And Authentic, No Corroboration Is Required To Act Upon It And Such Is The Case In The Present Appeal. Even If We, For A Moment Keep A Side Oral Testimonies Of The Fact Witnesses, We Are Of The View That The Statement Of The Deceased In The Form Of 161 Cr.P.C. Statement, Which Is His Dying Declaration Is Too Well Authentic And Believable That We Do Not Require Any Other Material To Hold The Appellant Guilty Of The Murder Crime. For P.W.1 And 2, We Only Require To Observe This Much That They Too Are Believable, Reliable And Trustworthy Witnesses And It Is Very Safe To Act On Their Creditworthy Testimonies To Anoint Charge Of Murder Around The Appellant.
Learned Amicus Curaie Has Failed To Convince Us And To Bring Before Us Any Material For Not Upholding The Conviction Of The Appellant. Medical Consistency With Presence Of Blood At The Spot And Total Absence Of Any Reason To Implicate The Appellant In A Gruesome Murder Incident By The Father-in-law Impels Us To Believe That Prosecution Has Successfully Wrapped Up Appellant's Guilt Around Him And There Is No Scope For Him To Escape The Rigors Of Punishment For The Murder Committed By Him.
Now We Turn To The Last Submission Of Sri Chaturvedi That The Guilt Of The Appellant Should Be Palliated To Section 304 Part I. On This Score, We Do Not Find Sufficient Material For The Same. It Was The Appellant, Who Had Arrived At The Spot Armed With A Gun And Cartridge. There Was No Reason For Him To Approach The House Of The Informant At An Early Hour Of The Wintry Morning When His Relatives Were Present Along With Him. It Was On His Own Volition That The Appellant Had Started Hurling Filthy Abuses On The Informant. The Deceased, Who Was Son-in-law Naturally Took It To Be A Temerity And A Faux Pas And, Therefore, It Was But Natural For Him To Raise An Objection For Such A Rankled Vetuparizing. Merely, Because The Deceased Objected To The Conduct Of The Appellant Is Not Grave And Sudden Provocation Given To The Appellant For Him To Act In Such A Reckless And Uncalled For Manner Of Loading His Gun Aiming At The Deceased And Shooting Him Down. This Was An Individual Act Of The Appellant Without Any Grave And Sudden Provocation. He Had Arrived At The Incident Scene With Premeditated And Preconceived Notions. Nothing Has Been Done By The Prosecution Side So As To Drive The Appellant To Act In A Scurrilous Manner Of Firing A Fatal Shot At The Deceased. There Is Absolutely No Evidence On Record, Which Even Remotely Suggested That Any Grave And Sudden Provocation Was Given To The Appellant By The Prosecution Witnesses Or Even By The Deceased. An Objection To Hurling Of Abuses, We Repeat, Is No Grave And Sudden Provocation Offered To A Murderer. Appellant Has To Reap The Fruits Of His Own Misdeed.
The Village Of The Incident Was One Of The Villages Falling Within The Dacoity Affected Area And, Therefore, Normally Village People Refrain From Taking Side Of Either Of The Factions. Nobody Wants To Generate Enemies To Make Their Lives In Peril. Non Examination Of Independent Witnesses, Therefore, Do Not Affect The Credibility Of The Prosecution Version, Which Is Well Knit And Which Completely Establishes The Charge Of Murder Against The Appellant.
The Above Discussion Leads Us To Conclude That Prosecution Has Succeeded In Bringing Home The Charge Of Murder And Establish The Guilt Of The Appellant And Learned Trial Judge Has Not Erred, Faultered Or Committed Any Error In Convicting The Appellant For The Said Charge And Punishing Him Accordingly. The Sentence Awarded To The Appellant Is Neither Severe Nor Unjust And To Say The Least Is The Minimum, Which Could Have Been Inflicted On Him.
Appeal Lacks Merit And Is Hereby Dismissed And The Impugned Judgment And Order Of Conviction And Sentence Dated 9.2.1989 Passed By Additional Sessions Judge/ Special Judge, E.C. Act Etawah In S.T. No. 147 Of 1987, State Vs. Shiv Raj Singh Is Hereby Affirmed. Appellant Is In Jail. He Is Directed To Serve Out His Sentence Imposed As Above.
Appeal Stands Dismissed.
Let A Copy Of The Judgment Be Certified To The Trial Court For Its Intimation.
Dt.13.2.2014
Arvind/Tamang/-

Hon'ble Sheo Kumar Singh, J.
Hon'ble Vinod Prasad, J.
Sri I.K. Chaturvedi, Learned Advocate Was Appointed As Amicus Curiae By Us To Assist The Court In Disposal Of The Appeal Under The Direction Passed By The Apex Court. Sri I.K. Chaturvedi Has Rendered Valuable Assistance For Which He Is Directed To Be Paid Rs. 8,000/- As His Fees By The Office Of This Court.

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