Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 12 of 2002 Arvind Kumar Vishnoi ...…………. Appellant versus State of Uttarakhand ...…………. Respondent Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. Jitendra Chaudhary, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the State. along with Government Appeal No. 356 of 2008 S tate of Uttarakhand ...…………. Appellant versus Mahipal Singh and others. ...…………. Respondents Mr. Amit Bhatt, Addl. Government Advocate, present for the State Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. Lokendra Dobhal, present for the respondents. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. The present criminal appeal as well as the Government appeal are directed against the same 2 judgment and order dated 22.12.2001, passed by learned Sessions Judge, Nainital in Sessions Trial No. 328 of 1995, whereby accused / appellant Arvind Kumar Visnoi is convicted under Section 302 of the Indian Penal Code, 1860 and sentenced to imprisonment for life, and also directed to pay fine of ` 10,000/- in default of payment of which he has been further directed to undergo rigorous imprisonment for a period of two years. Vide same judgment and order the accused / respondents Mahipal Singh, Sunil Kamboj alias Pappu and Brijesh Kumar have been acquitted of the charge of offence punishable under Section 302 read with Section 34 of I.P.C. 2. Prosecution story, in brief, is that P.W.1 Harendra Singh Dhillon had gone for some work to Kedar Singh Chauhan (deceased) resident of Nai Basti, Jaspur. After their meeting was over, Kedar Singh Chauhan offered Harendra Singh Dhillon to drop him at the bus station on his scooter. At about 06:00 P.M. near Singhal Nursing Home, a Maruti car bearing registration No. DDD 1784 came from the opposite direction and after overtaking the scooter obstructed its way. Accused Arvind Kumar Visnoi (A.S.D.M. Rudrapur), Mahipal Singh, Sunil Kamboj alias Pappu and his brother Brijesh Kumar, duly armed with weapons alighted from the car and after pushing Harendra Singh aside from the scooter, started firing at Kedar Singh Chauhan, who fell down on the ground. On raising the alarm and on hearing gunshots 3 Rupendra Singh Bagga (P.W.2) resident of Bhagwantpur and many other persons came there, on which four accused made good their escape. There was sufficient light in which the informant Harendra Singh and the witnesses recognized the accused persons. P.W.1 Harendra Singh and P.W.2 Rupendra Singh Bagga brought the injured Kedar Singh to the police station on the same day i.e. 29.11.1992 at about 06:10 P.M., and lodged the first information report. On the basis of said first information report, chik FIR (Ext. Ka-1) was prepared and Crime No. 467 of 1992 was registered against accused Mahipal singh, Sunil Kamboj alias Pappu, Brijesh Kumar and Arvind Kumar Visnoi initially in respect of offence punishable under Section 307 of I.P.C. Injuries on the person of Kedar Singh Chauhan (before his death) were recorded by P.W.3 Dr. P.K. Dixit on 29.11.1992 at 07:15 P.M. who prepared injury report (Ext. Ka-2). On the same day, a dying declaration (Ext. Ka-6) of injured Kedar Singh was recorded by S.D.M. Kashipur (P.W.6) in the presence of P.W.3 Dr. P.K. Dixit, Cardiologist. In the dying declaration the injured before his death has stated that accused Arvind Kumar Visnoi s/o Udai Raj Singh Visnoi with his 12 bore gun fired twice at him. He further stated that accused Mahipal Singh, Sunil Kamboj and Brijesh Kumar were accompanying him. He has also stated that he had enmity with these persons and they robbed him of ` 20,000/- cash. The incident took place near Singhal Nursing Home, Jaspur. At the end of the 4 dying declaration it is stated that the accused had threatened him to kill, regarding which he had already informed the police. Dr. P.K. Dixit, Cardiologist had endorsed on the dying declaration that the patient was fully conscious and was in a position to make a statement. The next day i.e. 30.11.1992 Kedar Singh Chauhan succumbed to the injuries received by him and the dead body was taken for postmortem examination. Dr. J.K. Goel (P.W.4) conducted postmortem examination on the dead body on 31.011.1992 at 04.46 P.M. and prepared autopsy report (Ext. Ka-5). The Medical Officer recorded two gunshot wounds on the dead body. He opined in the report that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. Police took the dead body in their possession and prepared inquest report (Ext. Ka-7) and other necessary papers. The investigation of the case was started by P.W.14 S.I. S.A. Zaidi, who inspected the spot and prepared memo regarding taking into possession of the scooter (Ext. Ka- 14), memo regarding taking into possession of a hand bag (Ext. Ka-15) and site plan (Ext. Ka-17). After interrogating the witnesses and on completion of investigation successor Investigation Officer S.O. Brijendra Singh filed charge sheet (Ext. Ka-19) against the four accused for their trial in respect of offences punishable under Section 307 / 302 / 120-B of I.P.C. 5 3. The Magistrate, on receipt of the charge sheet after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned III Addl. Sessions Judge, Nainital, after hearing the parties, on 22.08.1996, framed charge of offences punishable under Section 302 read with Section 34 of I.P.C. against the four accused. All of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Harendra Singh Dhillon (informant and eyewitness); P.W.2 Rupendra Singh Bagga (another eyewitness); P.W.3 Dr. P.K. Dixit (who recorded the injuries on the person of the injured and was present during recording of dying declaration); P.W.4 Dr. J.K. Goel (who conducted the postmortem examination); P.W.5 Smt. Labi Chauhan (widow of the deceased); P.W.6 Shamim Ahmed Khan (Magistrate who recorded dying declaration); P.W.7 S.I. J.K. Gangwar; P.W.8 S.I. Pratap Singh; P.W.9 R.K. Srivastava; P.W.10 Narendra Verma (owner of gun shop); P.W.11 Kaluwa (declared hostile); P.W.12 Suresh Kumar; P.W.13 H.C. Bhagwan Singh (who recorded the FIR) and P.W.14 S.I. S.A. Zaidi (the Investigating Officer). On behalf of the defence D.W.1 Dr. R.K. Shroff, D.W.2 Dr. R.K. Singh and D.W.3 A.K. Gupta (Fingerprint Expert) were examined. A court witness C.W.1 R.A. Misra (Govt. Fingerprint Expert) was also examined. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that 6 false evidence has been adduced against them and they have been falsely implicated in the crime. The trial court found accused / appellant Arvind Kumar Visnoi guilty of charge of offence punishable under Section 302 of I.P.C. After hearing the parties on sentence, convict Arvind Kumar Visnoi was sentenced to imprisonment for life and also directed to pay fine of ` 10,000/-. However, the trial court acquitted co-accused Mahipal Singh, Sunil Kamboj alias Pappu and Brijesh Kumar from the charge of offence punishable under Section 302/34 of I.P.C. giving them benefit of doubt. Aggrieved by said judgment and order, present criminal appeal was filed by the convict Arvind Kumar Visnoi, whereas the State has filed the present Government appeal against acquittal of the three co- accused. 4. It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.4 Dr. J.K. Goel, who prepared autopsy report after postmortem examination on dead body of Kedar Singh Chauhan on 30.11.1992, at 04:45 P.M. The ante mortem injuries recorded in autopsy report (Ext. Ka-5) are being reproduced below:- i) Gunshot wound of entry 1 cm x 0.5 cm on right side chest 6 cm from the nipple at 8 O’ clock position, blackening and tattooing present. Round form wound entry. Margins of wound inverted. 7 ii) Gunshot wound of entry 1 cm x 0.5 cm x cavity deep on postero lateral aspect of right side chest lower part just below lower margin right side of ribcage, margin and wound inverted, scorching and tattooing present. Round form of wound entry. iii) Stitched wound 25 cm in length (vertical in position or right side abdomen). iv) Stitched wound (horizontal) 16 cm in length on right side abdomen. v) Stitched wound 14 cm in length (horizontal) on right side of chest. vi) Stitched wound 3.5 cm in length on left side of abdomen. The Medical Officer (P.W.4 Dr. J.K. Goel) has opined in the autopsy report that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. 5. So far as the First Information Report is concerned, the same was lodged within 10 minutes of the incident. The distance between the police station and the place of occurrence is only one furlong. The injuries on the person of Kedar Singh Chauhan were also got examined without delay. The dying declaration has also been recorded on that vary day. Post mortem report corroborates the injuries mentioned in the medical report and both of these documents support First Information Report inasmuch as the gun shots were fired at Kedar Singh on 29.11.1992 at 8 6:00 p.m. The Inquest Report also shows that the victim has died due to firearm injuries. The doctor, who conducted post mortem examination has also stated that the cause of death of Kedar Singh Chauhan was shock and excessive haemorrhage. 6. The dying declaration (Exhibit A-6) was recorded by P.W.6 Shri Shamim Ahmad Khan, Sub Divisional Magistrate on 20.11.1992. Let us examine the dying declaration of Kedar Singh, aged about 38 years, son of Shri Mahi Ram, resident of Jaspur, district Nainital. The doctor has certified that the patient is fully conscious and well oriented and he is in a position to give statement. This certificate was given by P.W.3 Dr. P.K. Dixit, Cardiologist of L.D. Bhatt Hospital, Kashipur. 7. Kedar Singh Chauhan’s condition was critical. He was not controlling the day, for the same was not in his hands and therefore, his dying declaration was recorded thus : The Magistrate asked, “How did this incident take place?” Reply was- Arvind Kumar Vishnoi S/O Udai Raj Singh Vishnoi fired (at him) twice with his 12 bore gun. He was accompanied by Sri Mahipal Singh S/O Battu Singh and Sunil Kumar Kamboj & Brijesh Kumar, both sons of Jaswant Singh Kamboj. He had an old enmity with them. They had decamped a cash of ` 20,000/- from 9 him. This incident has taken place on the road near Singhal Nursing Home, Jaspur. They had committed marpeet and had also threatened (him) with dire consequences. The police was informed (about the same) earlier. 8. This dying declaration was endorsed with further certificate of Dr. P.K. Dixit that during the whole statement, the patient was fully conscious. This dying declaration (Exhibit Ka-6) appears to be a true statement of its maker. It makes clear that accused Arvind Kumar Vishnoi had intentionally fired at him which caused his death. Whether injured Kedar Singh was in a position to make any dying declaration as such was certified by Dr. P.K. Dixit that the injured was fully conscious and thereby was in a position to give his statement. Shri Shamim Ahmad Khan, S.D.M. as well as Dr.Dixit have no enmity with Arvind Kumar Vishnoi or any of his associates. It therefore, suffers from no infirmity. 9. Great emphasis was laid by learned counsel for the appellant on the fact that the time of recording the dying declaration is not mentioned in it. The signatures of the injured have also not been obtained. The argument so advanced on behalf of the appellant is not of much help inasmuch as the Magistrate, who recorded the statement obtained thumb impression of Kedar Singh on the same. So far as non-mentioning of time is concerned, P.W.6 Shri 10 Shamim Ahmad Khan has stated that he could not record the same by mistake. P.W.3 Dr. P.K. Dixit thought that it was not necessary for him to mention the time in his endorsement. The said dying declaration (Exhibit Ka-6) is strong corroborative piece of evidence as the same was recorded by a Magistrate and the doctor has duly certified his state of consciousness. 10. We have considered the veracity of the dying declaration recorded by PW6 Shamim Khan, Sub Divisional Magistrate, Kashipur in the presence of Dr. P.K. Dixit, Cardiologist, who has certified the consciousness of injured at the time of making of the statement. We have satisfied ourselves regarding the correctness of the dying declaration and, accordingly, hold that dying declaration is not tutored; it is voluntary. 11. The dying declaration recorded in this case inspires full confidence in its trustworthiness and correctness. It has intrinsic worth and its reliability can be determined from its tenor and contents. There are no material contradictions in the statements of prosecution witnesses. The dying declaration recorded in this case is free from doubt, reliable one and if the conviction is based on this dying declaration it will meet the ends of justice. There are no embellishments. What is more important is that a Sub Divisional Magistrate has recorded the dying declaration against one of his colleagues. Learned Sub Divisional 11 Magistrate has recorded the dying declaration in the language of the victim himself. He has not implied his own language so as to suggest that it is tutored one. The document appears to be correct and unalloyed version of the deceased. It is not a fabricated or distorted document. It passes the test of total reliability. The necessary details, minute and material, are found therein. Kedar Singh Chauhan was in a fit state to give the statement according to the Doctor. The Sub Divisional Magistrate has taken the opinion of the Doctor as to his fitness. Possibility of anxiety of planting the accused persons it totally ruled out. Taking an over-all perspective of the evidence, it is a case in which the veracity of prosecution witnesses and dying declaration cannot be doubted. It is free from mysteries, conjectures and surmises. The dying declaration inspires full confidence to the court in its truthfulness and correctness. Dying declaration is the last statement by its maker and great caution is exercised in considering the weight to be given to this species of evidence. On the basis of the oral testimony of prosecution witnesses coupled with the dying declaration recorded by an independent Sub Divisional Magistrate, it transpires that dying declaration is not the result of tutoring and is free and voluntary one. Neither the Doctor nor the Sub Divisional Magistrate were interested in the outcome of the case. Declaration showed the clarity of mind of the maker and there is no reason to doubt the certificate issued by a qualified Doctor. It is found to be absolutely coherent, cogent and inspiring 12 evidence. There is nothing to discredit or disbelieve the said dying declaration. Before recoding the dying declaration learned Sub Divisional Magistrate had obtained Doctor's opinion about the condition of the patient, who had declared the victim fit for making the statement and hence it is a reliable piece of evidence. We are in complete agreement with the findings recorded by the trial court so far as it relates to the accused /non- respondent Arvind Singh Vishnoi. 12. Prosecution has examined two eye witnesses viz., PW1 Harendra Singh Dhillon and PW2 Rupendra Singh Bagga. The former has stated that he had gone to the house of Kedar Singh Chauhan on 29.12.1992. On his way back to home, he was taken by the said Kedar Singh to drop him at Bus Station Jaspur in his scooter. At about 6 p.m. accused persons came in a red coloured Maruti Car and stopped the scooter. This occurrence took place near Singhal Nursing Home. Accused appellant Arvind Kumar Vishnoi and accused Sunil Kumar Kamboj were armed with 12 bore gun. Accused Mahipal and Brijesh Kumar were armed with country made pistols. They got down from the Car and fired at Kedar Singh Chauhan. On hearing the sound of fire, P.W. 2 Ruprendra Singh Bagga and a few more people came on the spot. Accused persons fled away from the scene. PW1 Harendra Singh Dhillon knew all the four accused persons as he had seen these persons with deceased Kedar Singh before this incident. 13 PW1 Harendar Singh Dhillon has also said that he took injured Kedar Singh to Police Station Jaspur and lodged the FIR (Exhibit Ka-1). Lamp post was there near the place of occurrence. 13. PW2 Rupendra Singh Bagga has corroborated the statement of PW1 Harendra Singh. He said that he was going to the side of Bus Station and when he reached near Singhal Nursing Home, a red coloured Maruti Car stopped the scooter, which was being driven by Kedar Singh Chauhan. Harendra Singh Dhillon was pillion rider. Four persons, viz., accused Arvind Kumar Vishnoi, who was armed with gun. Accused Sunil Kamboj, who too armed with gun, accused Mahipal and Brijesh Kumar, who were armed with pistols got down from the Maruti Car. Immediately appellant Arvind Kumar Vishnoi fired at Kedar Singh Chauhan, who fell down. PW1 Harendra Singh Dhillon and PW2 Rupendra Singh Bagga took Kedar Singh to the Police Station promptly. The accused persons fled away from the scene. 14. FIR appears to have been lodged immediately and if there is some confusion regarding delay in lodging the FIR, the same has been dispelled by the learned trial court at Para 23 Page 11 of the judgment. We are inclined to agree with the view expressed by learned Sessions Judge, Nainital that there is no delay in lodging the FIR. Learned trial court has also referred to rulings of Anant Mahanta 14 vs. State AIR 1979 SC 1433 and State of U.P. vs. Anil Singh, 1989 SCC (Cri) Page 48 to repel the arguments of learned counsel for the accused that it was Sub Inspector S.A. Zaidi, who has taken the injured to Hospital. Such an irregularity, if any, to our mind does not materially affect the truthfulness of the prosecution story. 15. The statements of eye witnesses in this case get corroboration from the dying declaration (Exhibit Ka-6) supporting the prosecution story that appellant Arvind Kumar Vishnoi fired at Kedar Singh Chauhan (since deceased) and other accused persons Mahipal, Brijesh and Sushil Kamboj were also present with him. That the victim sustained gun shot injuries gets corroboration from the medical report (Exhibit Ka-2). The ocular testimony of these two eye witnesses coupled with the corroboration from dying declaration (Ext. Ka-6) goes on to prove that appellant Arvind Kumar Vishnoi fired twice at Kedar Singh Chauhan, who succumbed to the injuries next day as is evident from the post mortem report (Ext. A-5). 16. These two eyewitnesses cannot be termed as chance witnesses. PW1 Harendra Singh Dhillon is the pillion rider and he is the most natural witness. Had he not deposed, the prosecution story would have been assailed on the ground that the pillion rider has not been examined. Similarly PW2 Rupendra Singh Bagga also cannot be termed as a chance witness. Where the occurrence has 15 taken place on way to Bus Station in an open road, whosoever is travelling on the road or standing thereby or waiting for the bus is a natural witness and not a chance witness. It has been observed by the Hon’ble Supreme Court in State of U.P. vs. Roop Singh, 1995 SCC (Cri) 403 that where there is a prompt FIR and witness is able to show cogent reasons for his presence near the scene of occurrence, his testimony cannot be disbelieved. 17. It was contended on behalf of the appellant Arvind Kumar Vishnoi that the injured was shot at by some unknown person, was removed from the spot in injured condition by the Police and was taken to the Jaspur Hospital. Subsequently, a twist was given to the real story by introducing two so called eye witnesses. 18. We are not inclined to agree with the contention of the learned counsel for the appellant in view of the eyewitness account of two witnesses duly supported by the medical evidence and the dying declaration. The learned counsel for the appellant also referred to the lapses in the investigation. They are dismissed summarily in view of the pronouncement of the Hon'ble Supreme Court that the prosecution cannot be faulted for insignificant wrongs and omissions of the investigating officer. 19. It was also argued on behalf of the appellant that the dying declaration is doubtful. We have given a careful 16 thought to the arguments so advanced on behalf of the appellant. We are of the view that the dying declaration so recorded by the Sub Divisional Magistrate inspires confidence. The thumb impression on the dying declaration was sent to the Government expert for examination, whose report cannot be doubted for the reasons enumerated in the report. 20. It was further argued on behalf of the appellant that the dying declaration was recorded by the Magistrate who was not informed by the Police and the Sub Divisional Magistrate came only on the information given by a local MLA and one Dinesh Kumar Sharma, who has got business rivalry with the father of the appellant. One thing is certain that the Magistrate had come to record the dying declaration of the victim. Whether he came at the instance of Police or at the instance of local MLA, that makes no difference. The fact remains that he came and recorded the dying declaration in the presence of Doctor. 21. The rulings cited by the learned counsel for the appellant in this behalf have no bearing on the facts of the case and hence do not help the appellant in any way. They are -State (Delhi Admn.) vs. Laxman Kumar 1986 Cr.LJ page 156; State of U.P. vs. Madan Mohan, AIR 1989 SC 1519; State of U.P. vs. Shishupal Singh 1994 SC 129; Ashok Kumar vs. State of Bihar 1999 Cr. L.J. 599 SC; 17 Shaikh Rafiq vs. State of Maharashtra (2008) 3 SCC 691, for the sake of record. 22. Yet another argument advanced on behalf of the appellant is that the prosecution witnesses are the procured witnesses who have been planted to falsely implicate the appellant. We are of the view on the basis of facts brought on record that although the witnesses were not the residents of the locality but the fact remains that they are natural witnesses and not chance witnesses. 23. The last but not least, whether a person of the stature and status of the appellant being P.C.S Officer can commit such a crime? In view of the evidence rendered on behalf of the prosecution, it is abundantly clear and that is why more agonising that a person of status has committed the crime in the broad day light which adds to the gravity of the offence. Law- protector has turned into a law- breaker. It may be noted here right now that the officer who has recorded the dying declaration of the victim is also a PCS officer of almost the same rank. Why should his evidence be not believed ? The incident took place within 100 paces away from the police station. The injured was brought to police station first and then to hospital. It is impossible to plant such a person in the circumstances. There was hardly any time with the informant to plant anybody. The evidence thus produced on behalf of prosecution is worth believing. 18 24. The appellant accused had a motive to kill Kedar Singh Chauhan. It has been held by the Hon’ble Supreme Court in so many cases that where there is a direct evidence, the question of motive fades into oblivion. Where direct evidence of commission of crime is there, the motive of crime loses its importance. In the instant case, appellant Arvind Kumar Vishnoi had fired at Kedar Singh Chauhan, which resulted in his death. PW5 Smt. Lavi Chauhan has stated