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INTRODUCTORY FACTS AND PROSECUTION CASE

2. The prosecution case as per the first information report (for short 'FIR') (Ex. Ka-1), which was lodged on 25.05.2002, at 3:05 am, at P.S. Pachokhra, District Firozabad, by Mohan Lal Baghel (not examined), elder brother of the deceased (Bhagwan Singh Baghel), is that there was a marriage party of the daughter of Prem Singh in which a dance programme was going on. The informant, his younger brother (the deceased) and several others were witnessing the dance programme. While watching the programme, at about 1.30 am in the night of 25.05.2002, the deceased left the programme to attend to nature's call, there Mahendra Singh Baghel (A1) stopped him and Geetam Singh Baghel (A2), the brother of A-1, fired at the deceased from a country made pistol thereby causing injury to the deceased. In the first information report it was alleged that the incident was witnessed by Munshi Lal Baghel (PW.3) and informant's nephew Ranveer Singh (PW.1) and various other persons, who tried to get hold of the accused but they escaped. The alleged motive for the crime was land dispute.

10. PW.3-Munshi Lal- stated that he was there with Bhagwan Singh (the deceased), Ranveer Singh, Mohan Lal and various other fellow villagers at the dance programme held in connection with the marriage of Prem Singh's daughter, Manju. The incident occurred at 1:30 am in the night when dance programme was going on. He stated that during the dance programme Bhagwan Singh (the deceased) went to urinate. There he was stopped by Mahendra Singh (A1) and Geetam Singh (A2) fired a shot at the deceased from a country made pistol. Thereafter, the accused ran towards west and Bhagwan Singh, in an injured condition, ran towards east and, thereafter, fell in the field of Dori Lal. Whereafter, Mohan Lal and others arrived and took the injured Bhagwan Singh in a tractor. At that point of time, the deceased was alive and fully conscious. He stated that he saw the entire incident. He identified the two accused in front of the court. He stated that at the time of the incident there was light with the aid of a generator. He stated that the incident was an outcome of enmity on account of land dispute as the field purchased by Mahendra Singh (A1) was purchased by Bhagwan Singh (the deceased).

25. Now we shall proceed to analyse the evidence led by the prosecution. Apart from the testimony of formal witnesses, there are essentially two types of evidence to support the prosecution case. One is the alleged dying declaration (Ex. Ka-8), recorded by PW8, and the other is the ocular account rendered by PW3.

26. We shall deal with the dying declaration first. The dying declaration (Ex. Ka-8) recites that the deceased with great difficulty could speak that in the previous night in connection with the marriage of Manju, the daughter of Prem Singh, Baraat had come and a dance programme was on. He (the deceased) along with fellow villagers was part of the audience. Sitting near him were Munshi Lal (PW3); and his nephew Ranveer (PW1). At about 1.30 am, in the night, he left to urinate. As soon as he got up after urinating, Mahendra Singh (A-1) and his brother Geetam Singh (A-2), who had also come to witness the dance programme, arrived. Mahendra Singh stopped him and Geetam Singh fired at him with country made pistol. The shot hit him on the right side of his rib cage. Upon being hit, he cried /shouted. Hearing his cries and the sound of gun shot, Munshi Lal (PW3), his nephew Ranveer Singh and others came running and tried to arrest the two accused but they ran away towards the west. In his narration, the deceased proceeded to disclose his enmity with Mahendra Singh (A-1) on account of land dispute. He also added that after hearing gunshot complete panic had set in and the dance programme had stopped.

30. The prosecution case, both in the first information report as well as in the ocular account rendered by PW-3, is to the effect that the deceased Bhagwan Singh was part of the audience to the dance programme and that, during the course of that programme, he went to urinate. According to PW3, he was stopped by Mahendra Singh (A1) and was shot by Geetam Singh (A2). Now, the issue which arises for our consideration is whether PW3 witnessed the actual firing or he was part of the audience of the dance programme at the time when the shot was fired and arrived with others upon hearing gun shot or the cries of the deceased.