Madhya Pradesh High Court
Vijay Singh And Ors. vs The State Of M.P. on 10 May, 1999
Equivalent citations: 2000CRILJ650, 2000(1)MPHT183
Author: R.P. Gupta
Bench: R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. This appeal is directed against the judgment dated 22-6-1995 in Session Trial No. 123/91 passed by VIth Additional Sessions Judge, Jabalpur. The appellants are two of the five accused who were tried. Manohar Singh appellant has been convicted under Section 302 I.P.C. and Section 27 of the Arms Act and has been sentenced to life imprisonment and imprisonment for 3 months respectively. Vijaysingh appellant has been convicted under Section 302/34 I.P.C. and Section 27 of the Arms Act. He has also been sentenced to life imprisonment and imprisonment for 3 months for the respective offences. Three other accused persons; Lakhan Rajoriya, Shobharam Patel and Shiv Kumar were acquitted. All the accused including the appellants were acquitted of the charges under Sections 147 and 148 I.P.C..
2. The incident had occurred on 18-1-1989 at 2 p.m. in village Rimjha. In this incident on the instigation of Vijaysingh appellant, his son Manoharsingh fired a shot at Kailash with a gun which hit him on the abdominal region just above the scrotum and piercing the body emerged at the buttock. Kailash had come to the village Rimjha to file his nomination paper before the election officer Shri B.P. Rajak for the election of Sarpanch. Vijay Singh was also a candidate for the office of Sarpanch. Manoharsingh quarrelled with Kailash as to why he dared to be a candidate for the office of Sarpanch: He and other accused had attacked him and his companions with lathies also. Thus, his brother Raju @ Bharatsingh was hit with lathi and injuries were caused to him. Kailash was treated in hospital for about 3 months, but, he died due to his injuries on 22-4-1989.
3. First information report in this case had been recorded at Police Station Paten on the statement of Kailashsingh deceased himself. On the date of incident i.e. 18-1-1989 at 7:15 p.m. Kailash was the resident of village Chhatarpur. He had gone to village Rimjha at 1:30 p.m. to file his nomination form. Before he could handover his form to the election officer, Manoharsingh snatched it. Lakhan Rajoriya and Manoharsingh started assaulting him and Manoharsingh questioned as to how he dared to fill up his nomination. Kailash then started escaping. On this Vijay Singh exhorted "MADER CHOD KO MAR DO", Manoharsingh then fired a shot at Kailash which hit him on the front of his abdomen just above scrotum on the right side and pierced him on the back portion. Bharatsingh @ Raju who was with Kailash was beaten by Lakhan Rajoriya by lathi blows on his arms and ribs. In the first information report it was mentioned that witnesses Jhakkan Singh, Kalyan Singh, Lal Singh, Ganesh Singh had witnessed this incident. It was also asserted that accused Dhuri Singh also gave lathi blows on the legs of Kailash while Jhaloun had thrown him down (PATAK DIYA). Then Bhimme Singh witness brought Kailash to village Chhatarpur. From the village Prakash, Mullu, Charan and Buddhu brought him on a cot to police station.
4. It may be noticed at the outset that all these witnesses were produced before the trial Court as PW-1 - Mulayam Singh, PW- 2 - Bhimme Singh, PW-3 - Charanlal, PW-4 - Shivaraj Singh, PW-5 - Lalsingh, PW-6 -Jhalkan Singh, PW-8 - Hakam Singh, PW-9 - Nekram, PW-10 - Govindprasad Singh (witness to recovery), PW-14 - Hallu, PW-15 - Buddhu, PW-16 - Ganesh, PW-17 - Beniprasad and PW-18 - Raju @ Bharatsingh who had suffered lathi injuries, PW-20 - Mullu, son of Bhangilal, PW-21 - Kalyan Singh and PW-22 -Prakash. All turned hostile to prosecution case and simply stated that they do not know what had happened. Raju @ Bharat Singh simply stated that when he reached Panchayat Bhawan, there nominations forms were filled, he saw a quarrel going on and somebody hit him with lathi on his arm causing fracture of his arm. Kailash Singh had also gone to fill nomination, but, he does not know who hit Kailash. He is brother of Kailash. The finding of the Trial Court is based on testimony of dying declaration of Kailash in the first information report Ex. P/18 noted above, where he described the names of two appellants as assailants. This first information report was recorded by PW-25 - Head Constable Faguram. A further dying declaration Ex. P/30 was recorded by Executive Magistrate Shri S.S. Qureshi (PW-24) (a Naib Tehsildar) on 18-1-1989 itself in the presence of Dr. R.K. Mishra (PW-23) at 8:42 p.m. who had given a certificate that the injured person was in a fit condition to make a statement. The trial Court has further relied upon the medical report of injuries found by Dr. Mishra (PW-23) on the person of Kailashsingh that day and also injuries found on the body of Raju @ Bharatsingh that very day. Kailash was referred by Dr. Mishra to Medical College and there he was treated. The summary of admission ticket is Ex. P/34 which was an admitted document, but, the treatment chart is not on record. The summary shows that Kailash died on 22-4-1989. Kailash had undergone an operation for managing his injuries. The autopsy was performed on the body by Dr. Yadu (PW-12) at 3 p.m. on 22-4-1989. The death was found to have occurred due to peritonitis resulting in toxaemia. Pus in large quantity, was found in peritonial cavity and bladder. The autopsy report is Ex. P/13. The patient had been operated upon earlier, but, infection had set in resulting in peritonitis and toxaemia. He had noticed healed wound 4 cm x 3 cm just above the scrotum towards the right and another healed wound on the right side of buttock measuring 2 cm x 1/2 cm.
5. Shri S.S. Qureshi (PW-24) Executive Magistrate had proved the dying declaration Ex. P/30 as given by the deceased on 18-1-1989 in the presence of the Doctor. There was no cross-examination directed on Shri Qureshi. According to this dying declaration Kailash had stated that as he was filing his nomination paper for the post of office of Sarpanch, Manoharsingh and Lakhan Rajoriya snatched it and Manoharsingh had fired a shot at him on the asking of Vijaysingh. There were number of people with Manoharsingh, but, he knew among them Vijaysingh and Lakhan Rajoriya. The others were also armed with lathies. The incident occurred at 2 p.m. nearly and the shot hit him at his private part. The gun was a 355 rifle which was fired by Manoharsingh. There was no previous enmity and the only reason was because he was filing his nomination form. Those people fired 10 to 15 shots. He named that Jhalkan Singh, Kalyan Singh, Ganesh Singh, Lalsingh, Bharat Singh @ Raju and other people of Rimjha village were also present there. Dr. R.K. Mishra (PW-23) in his evidence stressed that the statement of Kailashsingh was recorded by Naib Tehsildar in his presence and that he had found Kailashsingh completely conscious and in healthy mind and recorded his certificate about it on Ex. P/30. He, however, said in cross-examination that the nature of injury on the buttock of Kailash suggested as if the shot had been fired from the back side of Kailash.
6. In the summary report of MLC prepared at Medical College, Jabalpur which is Ex. P/38, it was recorded that there was an avulsion injury scrotum and penile shaft with size 8 cm x 6 cm. The patient was admitted on 18-1-1989 and died on 22-4-1989 at 10:15 a.m. according to this summary. It was also recorded that there was entry would 1.5 cm x 1 cm on the right buttock and perforation in lower 1/3rd of rectum 3 cm x 2 cm. The operations which have been done were:
(a) Pelvic colostomy
(b) Suprapubic cystostomy/1st stage
(c) I.O.U.
(d) Colostomy closure/2nd stage.
Opinion regarding injury given on this report is "Dangerous to Life". The treating Doctor was R.K. Dubey. The summary is dated 27-4-1989. The document was admitted under Section 294 Cr.P.C. Dr. R.K. Dubey was not examined as witness.
7. Thus, in the absence of any eye-witness account, (all the witnesses having gone hostile to prosecution version), the Trial Court had relied upon the two dying declarations of the deceased supported with medical evidence. The Election Officer Shri B.P. Rajak (PW-17) has simply stated that he was present in the Panchayat Bhawan' for receiving nomination forms for Panchayat elections. He was acting as Election Officer. There were lot of crowd outside and he heard a sound of gun shot outside the room. He does not remember any of the party came to fill their nomination forms. Even this witness was declared hostile in parts of the prosecution version about part of his testimony.
8. The contention of the counsel for the accused is that the dying declarations in this case are not worth reliance to base the conviction of the appellants. It is urged that there is contradiction in the dying declaration regarding from which position the shot was fired i.e. from the front of Kailash or from his back. According to the dying declarations the shot hit him on the front near the scrotum and went out from the back on the buttock. But, the medical opinion is that the nature of injury found on the back and on the front suggests that the entry wound was at the buttock and the emergence of the bullet was from the front. The argument is that this opinion of the Doctor cannot be ignored by the Court as the same opinion was given in the summary report Ex. P/38 that the entry wound was on the back at the buttock. If this was so, and somebody had fired at Kailash from his back, it was doubtful that Kailash could have seen who fired the shot at him and he might have simply imagined that Manoharsingh fired the shot and he must have manipulated to say that the father of Manoharsingh instigated him to shoot. This probability is enhanced, as is argued by learned counsel for the appellant, by the version that several people had fired shots from the crowd.
9. So the argument is that implicit reliance can not be placed on these dying declarations as the deceased is not available for cross-examination by the accused persons. The fact that even Raju @ Bharatsingh who is brother of the deceased, has not supported the prosecution case should also be taken as leading to inference that the prosecution story is doubtful.
10. Some feeble attempt was also made by learned counsel for the appellants that it is not established that the dying declaration was actually made by Kailash voluntarily and uninterferred by anybody. It is urged that possibility is that some other persons who were with the injured at the Police Station had suggested part of the story, cannot be ruled out.
11. After perusing evidence of Faguram Head Constable (PW-25) we find it abundantly clear that the report Ex. P/18 was recorded by him on the statement of Kailash only, uninterferred by anybody else. He admitted in cross-examination that there were 10-12 persons present and were talking, but, he stressed that the report was given by Kailash as he had instructed them to let Kailash give his statement. No witness stated that he had narrated the story to the police before Kailash's report was recorded. So it is amply established beyond doubt that Ex. P/18 first information report was given by Kailashsingh voluntarily to Faguram Head Constable (PW-25). It was recorded within about five hours of the incident and would be said to be a true statement of event of shooting at Kailashsingh.
12. Similarly, the statements of Shri Qureshi and Dr. Mishra who have no interest in either of the parties, amply establish that the injured made his statement to Shri Qureshi. It was voluntary statement by him when he was in a fit and conscious state and full senses to make a statement. Shri Qureshi was not cross-examined even to suggest that the injured had consulted somebody else before making statement. No such suggestion was given even to Dr. Mishra. The first information report was recorded at 7:15 p.m. and this dying declaration was recorded at 8:20 p.m. i.e., about 1 hour after the first information report. So it was a voluntary version of the incident given soon after the incident without any other consultations operating on mind of Kailash injured.
13. Learned counsel for the appellant urged that on the first information report there was no report of Doctor that the patient was fit to make a statement. Such report is never to be recorded on the first information report. It is not suggested to Faguram PW that the injured was not fit to make a statement. The Supreme Court has observed in case of Jai Prakash v. State of Haryana reported in JT 1998 (5) SC 308 that a first information report given by the deceased before his death need not bear any opinion of the Doctor that the maker of the first information report was in a fit state of mind to make a statement. That can be established. The fact that he made a statement and police official recorded suggests his fit state of mind unless otherwise it is established and further that it makes no difference if such statement to police officer by the injured was not recorded in question answer form. The statement when recorded was only a complaint for which neither presence of the Doctor was required nor it was required to be in question answer form.
14. Thus, we find that the two dying declarations were made by Kailash, one after the other, to independent persons about how injuries were caused to him. His version about the incident is further corroborated by the fact that even Raju @ Bharat Singh had suffered injuries on his arm and there was fracture on his arm. His injuries are proved by Dr. R.K. Mishra (PW-23). It is another aspect that Bharat Singh @ Raju turned hostile regarding who caused injury to him and who attacked Kailash.
15. Now we turn to the contention of the counsel for accused that the dying declaration should not be relied upon to base conviction as presumably injured was not in a position to note who fired shot and he is not speaking the truth when he says that the shot was fired from his front in view of the opinion of the Doctor that the entry wound was on the buttock side and not near the scrotum. In order to appreciate this argument, it will be proper to look into the evidence of Dr. R.K. Mishra who first examined the injuries, the autopsy report, as also the medical opinion. The medical report about Kailash prepared by Dr. Mishra is Ex. P/26A. Three injuries were found on his person;
(i) Lacerated wound 3 1/2" x 3" with irregular margin ----- muscles exposed ------ testes (Rt.) lower - of penis ------. It was opined to be probably caused by gun shot weapon;
(ii) Perforating wound 3/4" x 1/2" x deep inverted margins, oval in shape, having bleeding ------- passing through the root-Penis. Probably caused by gun shot weapon;
(iii) Perforating wound 1" x 1" x deep everted margins on medical aspect of Rt. buttock 7 1/2" from greater trochater oval in shape. Probably caused by gun shot weapon.
Duration of all the three injuries was within 24 hours of examination by him. He advised X-ray and treatment by surgical specialist and he referred the patient to Victoria Hospital. He could not say the nature of gun whereby the shot might have been fired. He could not describe the distance of fire from the wound, but, in his opinion the shot might have been fired from the side of his buttock. He did not prove the injuries to internal organ.
16. We have also seen the summary report of M.L.C. at the time of death of Kailash prepared at Medical College, Jabalpur, i.e. Ex. P/38. The autopsy report given by Dr. Yadu i.e. Ex. P/13 may be looked into in its detail. Doctor noticed pus discharge through urethra and the following injuries :
(i) Healed wound with scar on medial aspect of Rt. Hip 2 1/2 cm. x 2 1/2 cm Rt. of midline;
(ii) Healed wound with scar 4 1/2 x 3 cm on upper Rt. quarter of external genitatia irregular;
(iii) midline partially healed operation scar 5 cm long pus discharge through lower part;
(iv) 11 cm long oblique operation scar in left part of abdomen with pus from it;
Internal examination of the body suggested anaemia. It appeared that the part of intestine had been taken out during operation. There was one litre yellow bad smelling pus in peritonial cavity. The large intestines had become stuck with each other and the bladder contained yellow-red foul-smelling pus. The internal injury became healed from the surface. The cause of death was peritonitis resulting in toxaemia. Which would caused the death, he could not opined with definiteness. He said that opinion could be given by operating surgeon.
17. The objection of learned counsel for the appellants regarding direction of fire and whether it was from the back of the deceased Kailash or from the angle from which he could see i.e. from his front or from another front angle will be discussed slightly at a later stage. First, we proceed to discuss two other objections of learned counsel against relevance of these two dying declarations. One is that these could not be acted upon because death is not proved to be the direct result of the gun shot injury, but, the death occurred three months after the incident of firing. The injured was operated upon and peritonitis developed in the intestine and bladder as huge quantity of pus was found during the autopsy on the body. So it cannot be said that the death was the direct result of firing. Death is removed in point of time also from the firing and so the statement of the deceased made to police or to the Magistrate on the day of firing cannot be counted as 'circumstances surrounding his death'. So his statement should not be held as covered by Section 32(1) of the Evidence Act.
18. Another argument is that the identity of the person who fired the shot and the person who instigated is not established by dying declaration itself and there is no evidence about it. Mere mention of names in the dying declaration does not establish the identity of the person who fired the shot. So, the argument runs that on mere acceptance of these dying declarations even if they are accepted to have been made by the deceased voluntarily, it cannot be said that they pertain to these accused as the shooter. It is urged that there should be evidence aluendi or inherent in the dying declaration as to who was the shooter. Learned counsel has cited a Supreme Court judgment in Gopal Singh and Anr. v. The State of Madhya Pradesh and Anr. (AIR 1972 SC 1557). It was observed in that case by the Supreme Court that a dying declaration which does not contain complete names and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based. It cannot be accepted without corroboration. In that case names of the assailants were given in the dying declaration of the victim who ultimately died and the assailants were mentioned as the persons with whom his father had enmity and litigation. There was material on record to suggest that there were other persons of that names. The father's name had not been given in the dying declaration and evidence was not led regarding litigation between the accused and father of the deceased. So the Court was left with the names of the accused persons as mentioned in the dying declaration. Since there were other persons of these names in the vicinity, Court held that it cannot be said beyond doubt that only the accused were the assailants and nobody else would be assailants. The corroborative evidence was found to be of doubtful character.
18A. First of these objections of learned counsel can be disposed of on the strength of Supreme Court's pronouncement in case of G.S. Walia v. State of Punjab and Ors., (JT 1998 (3) S.C. 449). In that case assault was made by real brothers, nephew and close relatives on the deceased on 29-5-1986, with iron rods, tyre lever and axe. There was no injury found with sharpside on the body of the deceased. Statement of the deceased was recorded on 31-5-1986. However, no case was registered and the medical report was received on 6-6-1986 and on that medical report case was registered under Section 326 I.P.C.. The injured died on 16-6-1986. There were injuries on the head and leg resulting into fracture. The medical report showed that the injuries were not sufficient to cause death in ordinary course of nature. Cause of death was said to be Pulmonary Embolism which means blocking of main artery to lungs, by piece of clot from other part of body, causing remote but unavoidable complication. The Supreme Court held in these circumstances that the statement made by the deceased would fall under Section 32(1) of the Evidence Act. It was further observed that even in the absence of sharp edged injury, being inconsistent with medical evidence, the statement was admissible and could not be mechanically rejected. It was also observed that a blow given by an axe with its sharp side pointing towards the victim may not always result in causing an incised wound. What type of injury it will cause would depend upon various factors like the position of the assailant and the victim, angle at which it hits the body, the part of the body where it lands, the force with which it hits the body etc.. To reject the evidence as untrue in such circumstances, considering it as inconsistent with medical evidence, without considering the relevant factors, would mean mechanical appreciation of such evidence. The High Court had considered the statement (Ex. PN) as untrue only on the ground that it stood contradicted by the medical evidence. The Supreme Court said that such mechanical rejection of the dying declaration was not proper. Thus, in the cited case in respect of death being removed in terms of time from the incident, the dying declaration was accepted as believable although certain other medical factors such as Pulmonary Embolism had also intervened. The inconsistency in medical evidence and regarding nature of blow was also considered as explainable and on possible explanation the inconsistency was ignored.
19. In another case cited at AIR 1997 SC 768 titled Rattan Singh v. State of Himachal Pradesh, a Bench of the Supreme Court including Hon'ble Dr. Justice A.S. Anand (now Hon'ble the Chief Justice of Supreme Court) interpreted the word "Statement as to circumstances of the transactions which resulted in death" occurring of Section 32 of the Evidence Act by explaining that there need not necessarily be a direct nexus between "circumstances" and "death". Statement of deceased before her death that accused was standing with gun, subsequently turning out to circumstance of transaction which resulted in her death, it was held that such a statement was admissible under Section 32(1) of the Evidence Act. In this case the accused had been making dubious and lewd love advances towards the deceased and, getting no response or getting rebuf, was trying to physically hurt her. On the night of occurrence, he secretly entered the house where the deceased and other family members were sleeping, but, members were aroused by the noise created by his entrance. The deceased saw him armed with a gun at a particular point in the house and cried out the name of the accused being present armed with gun and at that time itself the accused fired at her and caused her death. Of course, he was attempted to be caught and his gun was wrested from him, but, thereafter he was able to escape. In these circumstances, the Supreme Court held that the statement of the deceased was regarding circumstances which resulted in her death and so was admissible under Section 32(1) of the Evidence Act. Of course, it was found to be also admissible as conduct of the deceased under Section 6 of the Evidence Act.
19A. Thus, for a statement to be attracted under Section 32(1) of the Evidence Act, it is not necessary that death should have a nexus in terms of fixed time, with the statement, nor that the victim who made the statement should essentially be in apprehension of immediate death. The conditions are that the statement should relate to circumstances surrounding the event (assault) which ultimately led to death. There should be nexus between the circumstances stated by victim and his death.
20. A consideration of these interpretations of Section 32(1) of the Evidence Act, clearly leads to the inference that the statement of the deceased, in our opinion, made to the police and the Magistrate would be admissible under Section 32(1) of the Evidence Act although an operation intervened between the incident and the death and peritonitis had set in. The mere fact that the surgeon who performed the operation on the deceased has not been examined and the bed head ticket has not been exhibited, makes no difference in view of the evidence of the Doctor who initially examined the injuries and the evidence of autopsy surgeon as also the admitted summary of death.
20A The wound was a piercing wound near the root of the penis, its size was 3/4" x 1/2" with depth and it had inverted margins with bleeding. The corresponding wound on the opposite side was measuring 1" x 1" deep and was with everted margin. It was on the medial aspect of rt. buttock 7 1/2" from greater trochater. It was oval in shape. So the shot had entered the injured at one side and emerged from the other side. Even though the treating surgeon has not been examined, but, inference is clear that vital part of the body had been injured by this gun shot. We will discuss it at the later stage as to which of these could be entry wound and which the exit wound in spite of the opinion of the Doctor that the buttock wound was the entry Wound. The death summary Ex. P/38 gives opinion regarding the wound as dangerous to life. The operations were; (a) Pelvic Colostomy, (b) Suprapubic Cystostomy, (c) I.O.U., (d) Colostomy Closure. There was noticed perforation in lower l/3rd of rectum. There was noticed avulsion injury scrotum and penile shaft. So the fired shot had caused injury dangerous to life and attempt was made to treat them by the operations by the Doctor. The patient died after about 3 months, but, all through remained hospitalized, that is clear from the death summary. We have also seen the observation of the autopsy surgeon. It shows that the operation had been performed, but, the wound suffered infection resulting in pus formation in huge quantity and ultimately death. So the evidence is clear that the gun shot was the imminent cause of death of the patient although it was removed by time from the day of shot because of medical intervention and attempt to save the life. The argument that this attempt of the surgeon caused the death has no merit. So the argument of the counsel, that the statement of the deceased regarding the firing has no nexus to death, is without substance. The statement of the deceased in this case relates to the circumstance of transaction which ultimately resulted in death. Section 32(1) of the Evidence Act deals with such circumstances and is not restricted to the circumstances which caused the death. This has been specifically observed by the Supreme Court in Rattan Singh's case (supra).
21. The second objection of learned counsel for the appellants that these two dying declarations do not unmistakably point out the identity of these appellants, also has no substance when we examine these two statements of the deceased i.e., Ex. P/18 recorded by Police Officer and Ex. P/30 by Executive Magistrate. It is important factor that it is not a disputed fact that Manohar accused is son of Vijay accused. The deceased as well as accused had gone to the spot of incident for filing their nomination papers for the election of Sarpanch. Jhalkan PW states that Kailash deceased had gone to file his nomination papers in village Rimjha for the office of Sarpanch and other people had also gone. He avoided to tell anything about the incident. Bharat Singh @ Raju (PW-18), who is the brother of the deceased, also asserted that Kailash had gone to file nomination form for the post of Sarpanch, of course, he turned hostile on all other aspects of the case including the fact as to who caused injuries to him. He was certainly concealing the fact as is clear from his cross-examination relating to statement to police. There is no dispute that Manohar Singh is the son of Vijay Singh as he gave his father's name in his statement under Section 313 Cr.P.C. Both Vijay Singh and Manohar Singh have denied that they went to village Rimjha for filing nomination form. Vijay Singh admitted that the police vide memo Ex. P/10 had taken a rifle of 355 calibre from his house and also a gun licence of his son Bhagwan Singh during investigation after arresting him, also on 30-1-1985, the police seized a 12 bore double barrel gun, and 4 cartridges and a licence from him from his house vide memo Ex. P/1. The fact that Vijay and Manohar accused are father and son residents of village Singori and Vijay accused was Sarpanch are important material to show that the dying declaration referred to them only, when it named Manohar Singh and Vijay Singh. In view of this evidence, the judgment of the Supreme Court in Gopal Singh v. State of M.P., (AIR 1972 SC 1557) is not attracted in this case. The identity of these accused is established from dying declarations, the fact that the deceased was filing a nomination form for Sarpanch office and the fact that Vijay Singh was the Sarpanch and Vijay & Manohar felt aggrieved that this deceased should have audacity to file his nomination for office of Sarpanch. These factors clearly indicate that the deceased was referring to them only and nobody else in his dying declarations.
22. Now we advert to the argument that the nature of injuries disclosed that the shot was fired while the injured was running and hit him from the back. It is mainly based on the medical evidence of first examining Doctor R.K. Mishra (PW-23) and the death summary Ex. P/38. In these, gluteal wound is mentioned as the entry wound. The Doctor has not given any reason for this opinion, but, the observation appears, prima facie, contradictory to medical opinion expressed by eminent Doctors or experts in their textbooks of Medical Jurisprudence. The gluteal wound was larger in size i.e. 1" x 1" and had everted margin. The wound at the root of scrotum was smaller in size i.e. 3/4" x 1/2" and had inverted margins. The area of injury to the muscle surrounding the scrotum for 3 1/2", is of no importance as the skin and muscle in that area are in, more or less, loosely hanging state in a man. So the real size of the wound would be the spot where the stiff muscle starts. The size of which was 3/4" x 1/2" with inverted margin. A wound of entry is smaller in size than the wound of emergence. The wound of entry has inverted margins and wound of emergence has everted margins. In Modi's Medical Jurisprudence and Toxicology, Twenty-first-Edition at page 264 this opinion is mentioned: "The wound of entrance in distant shot is usually smaller than the projectile due to the elasticity of the skin, and round when the projectile strikes the body at a right angle and oval when it strikes the body obliquely. The edges of wound are inverted............. The wound of exit is often larger than the wound of entrance and its edges are irregular and everted.......... The edges of both the wounds of entrance and exit may be everted in fatty persons due to protrusion of fat in the wounds, and in decomposed bodies from the expansive action of the gases of putrefaction........." In a book on the subject namely : "Forensic Science in Criminal Investigation and Trials" by Dr. B.R. Sharma, Ph.D., Director, Himachal State Forensic Science Laboratory, Shimla, at page 275, it is observed regarding wounds caused by fire arm that when velocity of a fired shot exceeds 600 meter per second and upto 1100 meter per second, it also causes wound of the nature of blast effect. Thus, the wound in the loose skin around the testicles of the deceased could be because of such effect also. At the same page it is also mentioned that if a projectile comes out of the body the exit wound is larger than the entrance wound. So the laceration in that area after testicles of the size 3 1/2" x 3" with irregular margin is explainable on this theory of blast effect of a fired shot. Even in Gaur's book namely "Fire Arms, Forensic, Ballistic, Forensic Chemistry and Criminal Jurisprudence (2nd Edition 1989)" it is observed at page 82 that wound of exit is usually larger than the wound of entrance, unless on the way through the body the projectile is intercepted by some bones and there is some deformity or disintegration in the projectile. Shri K. Kumar in his book "Forensic Ballistics in Criminal Justice" based on his experience as Directors of Ballistics Laboratory of various States, making a scientific exposition of gun shot wounds, compares wound of entrance and wound of exit as under :
___________________________________________________________________________ Wound of Entrance Wound of Exit ___________________________________________________________________________
1. Size Appears smaller than the wound of Appears larger than the wound of exit due to inversion. Greater the entrance due to eversion. May distance, smaller the appearance. appear smaller than the entrance if Contact shots are exception to this the entrance wound is a contact phenomena due to stretching of shot.
surface skin.
2. Shape Regular, i.e., circular when the The shape is of irregular size bullet hits at right angles and oval when it hits and penetrates in an angular direction.
3. Nature Punctured and lacerated. May at times appear as incised particularly with high velocity, tapered and pencil point bullet.
4. Margins Usually inverted, but in case of Usually everted, abraded collar, wound of fatty part of the body, the contusion, tattooing, blackening, entrance wound may appear as burning, carbonisation, etc. are everted due to protusion of fat. May absent.
be surrounded with abraded collar and contused. A quantity of grease may be deposited. There may be blackening, scorching, tattooing, singing, of hair in case of close shot. Microscopical examination of range skin and subcutaneous tissues around the wound of entrance will disclose evidence of carbonisation, swelling and homogenisation of dermal collagen apart from the deposit of dark particles.
___________________________________________________________________________ These opinions in the eminent books on Medical Jurisprudence cannot be ignored because of the opinion of the Doctor in this case, given without reason and without support of authority. Even if the Doctor was produced by the prosecution itself, the Court is bound to see whether there is real conflict between the medical evidence and other evidence from the fact observed by the Doctor. Thus, after having observed the size of the wounds and inverted and everted nature of the margins, the Doctor was required to give the opinion why he considers the gluteal wound as of entry. He has not done so. The opinion is contrary to the opinion of renowned experts. Similarly on what basis the death summary relates the gluteal wound as entry wound is not known. This Court is not bound by prima facie wrong opinion.
23. The Supreme Court, in several cases, has pronounced upon the discrepancy in medical evidence and other evidence and held that the other evidence cannot be discarded unless the medical evidence expressly rules out the truth of other evidence. In AIR 1983 SC 484 titled Solanki Chimanbhai Ukabhai v. State of Gujarat it was observed that eye-witness version would be preferable to medical evidence unless the medical evidence completely rules out the eye-witness version. In AIR 1988 SC 912 titled Nanahau Ram v. State of Madhya Pradesh, the Supreme Court was faced with the situation where medical opinion ruled out survival of the deceased for half an hour, but, direct testimony was of factual survival for the period and making of dying declaration. The Court held that this direct testimony could not be wiped out by such medical opinion.
24. When we closely look at the dying declaration Ex. P/30 recorded by the Executive Magistrate, it says that on the order of Vijay Singh, Manohar Singh fired at him and he suffered injury on his private part. This happened .when his nomination form was snatched which he wanted to file. It was snatched by Lakhan Rajoriya and Manohar Singh. Regarding motive also he narrated that he had no enmity with these people also and he was attacked merely because he wanted to file the form. He also said that "UN LOGO NE 10-15 FIRE CHALAYE". The statement of this deceased in first information report Ex. P/18 mentioned that when these people had snatched his form and Manoharsingh questioned him as to how he dared to file his nomination form, this deceased "CHHUDA KAR BHAGA", then Vijay Singh instigated Manoharsingh to shoot and Manoharsingh shot him which hit him on his front near the scrotum towards its right upper portion. The buttock wound was also on the medial aspect of the right buttock. We are satisfied that wound on the front near the head of scrotum was the entry wound and the injury caused to the loose hanging skin and muscle around testicles was because of the formation of the skin and muscle in that area and could have been due to blast effect of the shot. The exit wound was on the gluteal region. So the dying declaration cannot be falsified as being contrary to medical opinion. Mere fact that in the F.I.R. he said that "MAI CHHUDAKAR BHAGA" would suggest his attempt in running after getting himself released and does not rule out that he was at a front angle to the shooter when he was fired at. The part of his statement that those people fired several shots appears to relate to what happened after he was shot. No other shot was aimed at him nor he was struck. The argument of the counsel for the appellants that this statement indicates that the other people also fired, but, does not show what was their aim and in these circumstances any of those shots could have hit this victim, does not have any merit so far as injury to Kailash is concerned. He had seen Manoharsingh shooting him and he was hit by that shot, so he made the statement. It is not that he was not sure of the shot of Manoharsingh. He categorically stated that Manoharsingh shot him on the asking of Vijaysingh. In this case a gun of 12 bore was recovered from Vijaysingh vide Ex. P/31 and another of 12 bore from acquitted accused Shiv Kumar. These facts are put forward for urging that a number of persons could have possessed guns and other guns were also fired, than one allegedly fired by Manoharsingh. So the argument runs that it should be taken as uncertain as to who fired the shot at Kailash particularly when Kailash had started running. These arguments are merely imaginary to create a doubt about whether Kailash had seen Manoharsingh shooting at him. It is immaterial if others also fired some shots in the air or anywhere else even. These shots were not fired at Kailash. The shot fired by Manoharsingh hit him. That is the clear and consistent acceptable statement made by Kailash in both of his dying declarations.
25. The appreciation of medical evidence and dying declarations made by this Court in this case fits in the scope of tests laid down by the Supreme Court in the above cited decisions.
26. On above detailed discussion, we find no infirmity in the dying declarations of the deceased that Manoharsingh appellant shot at him on the instigation by Vijaysingh appellant who is his father. The shot was fired at vital part of the body and ultimately resulted in death. It is immaterial as to how long the deceased fought with death in hospital, while he was operated upon. The death was the direct result of this gun shot injury. Apparently the accused wanted to cause death. So the appellants have been rightly convicted; Manohar Singh under Section 302 I.P.C. and Vijaysingh under Section 302/34 I.P.C..
27. The only other question left is whether offence under Section 27 Arms Act was committed by both these two appellants. So far appellant Vijaysingh is concerned he had asked his son Manoharsingh to shoot at Kailash. He was not in possession of any gun nor he utilized a gun. A rifle of 355 bore was recovered by the police during investigation of this case from Bhagwan Singh another son of Vijaysingh on 6-4-1984. Bhagwan Singh had licence for possession of this gun. One gun of 12 bore calibre was recovered from Vijaysingh from his house on his disclosure alongwith four cartridges and gun licence. The trial Court has not even found that Vijaysingh was in any manner in possession of this gun on the day of incident or at the time of incident or Vijaysingh used a fire arm. It was Manoharsingh who fired the fatal shot. Merely asking somebody illegally to shoot, is not the same thing as using the firearm which the other person used. So Vijaysingh cannot be held guilty under Section 27 Arms Act.
28. So far as Manoharsingh is concerned, he used the firearm which hit Kailash deceased. His act in shooting a firearm certainly falls within the ambit of offence punishable under Section 27 Arms Act. It is not necessary to establish what particular firearm was used nor can we say that rifle of 355 bore recovered by police from Bhagwan Singh or the 12 bore gun recovered from Vijaysingh, is the same as was fired at the deceased by Manoharsingh. It may have been or may not have been the same. The identity of the rifle is not essential to be established either for offence under Section 302 I.P.C. or Section 27 Arms Act, nor in fact any attempt has been made by the prosecution to show that the used fire arm was the same as was recovered from Bhagwan Singh or from Vijaysingh. So Manoharsingh has been rightly convicted under Section 27 Arms Act also.
29. In view of above discussion we find that the appellants Vijaysingh and Manoharsingh have been rightly convicted under Section 302/34 I.P.C. and 302 I.P.C. respectively. Manoharsingh has also been rightly convicted under Section 27 of the Arms Act. Their sentences are proper. Vijaysingh's conviction under Section 27 Arms Act, however, is set aside. His appeal to that extent is partly accepted. Rest of the appeal of Vijaysingh and the entire appeal of Manoharsingh is dismissed and the sentence awarded to them is also confirmed.