GOPAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant, who is the sole accused in the case, has been found guilty under Section 302, I.P.C. and sentenced to undergo imprisonment for life for the offence of committing murder of one Ram Khelawan, deceased in the case, by shooting him down with a fire-arm. The appeal preferred by him is dismissed by the High Court.

(2.) According to the prosecution about four months before this occurrence, Pushpa, niece of the accused, was alleged to have been kidnapped by the deceased and one Ramesh, P.W. 2. A report was lodged and the case was pending. Therefore the accused bore grudge against the deceased. On 29-9-1978 at about 8 p.m. the deceased along with P.W. 2 was going from the side of Bhanmati crossing and when they reached Hemrajwali Gali, the accused fired at the deceased with a country made pistol. P.W. 1 and one Manna Lal witnessed this occurrence. On receiving the shot the deceased fell down. P.W. 7 arrived there soon and took the injured to the hospital in a rikshaw and he was admitted in the emergency ward. P.W. 4, Dr. N. S. Chauhan and two Surgeons reached the emergency ward after making the necessary entries. P.W. 4 recorded the dying declaration of the deceased in the presence of P.W. 3, another Surgeon. In this, the deceased stated that he was shot at by the accused. A case was registered under Section 307, I. P.C. on the basis of the complaint given by P.W. 2 but after the death of the deceased on 30-9-78 the Offence was altered to under Section 302, I.P.C., P.W. 8, S. I. took over the investigation, held the inquest and the dead body was sent for post-mortem. P.W. 5, Dr. J. B. Saxena conducted the post-mortem and he opined that the death was due to gun-shot injuries. After completion of the investigation the charge-sheet was laid. The accused pleaded not guilty and stated that he has been falsely implicated and he denied that Pushpa was his niece. The prosecution examined 11 witnesses. Out of them P.W. 1 figured as an eye-witness and he supported the prosecution case when his evidence was recorded on 16-3-79 by the trial Court and also during parts of the cross-examination on that day. His cross-examination was postponed to 19-3-79 and on that day he developed a different attitude and started giving answers favourable to the defence particularly about the presence of the lights in the street. He was treated hostile and he was cross-examined. P.W. 2 only deposed that on hearing some noise he reached Hemrajwali Gali and he found the deceased injured and that his brother P.W. 7 took the deceased to the hospital. He was also treated hostile since he went to the extent of denying the report given by him. However, both the Courts below mainly relied on the dying declaration recorded by the Doctors. In that dying declaration, the deceased clearly stated that the accused shot at him. The contents as extracted by the High Court would show that after the firing of shot was heard by the deceased and after he was injured, he turned to that side and saw the accused running away and he identified him and has given the particulars of the accused namely about his residence and his brothers name also. Therefore there is no question of any mistake in identification. The High Court has considered this aspect in great detail and has rightly held that all the particulars mentioned in the dying declaration would leave no doubt regarding the identity of the accused. Apart from this even though P.W. 1 is treated hostile, in his chief examination and also during cross-examination on the first day, he supported the prosecution case and his evidence also would show that it was the accused who shot at the deceased. The Doctors, P.Ws. 3 and 4 who recorded the dying declaration deposed that the injured was conscious and his mental condition was such that he could give a statement and whatever he stated was correctly recorded and read out to him. The High Court also pointed out certain circumstances which corroborate the dying declaration. Therefore we see absolutely no grounds to come to a different conclusion. The appeal is accordingly dismissed.