Amrik Singh vs State
2011 Latest Caselaw 3785 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                             Date of Hearing: 21st July, 2011
                                                           Date of Decision: 8th August, 2011
+        CRL.A No.73/1998

         AMRIK SINGH                                              ....... APPELLANT
                                Through:     Mr. V.K. Malik, Advocate with
                                             Appellant produced from JC.
                       Versus

         STATE                                                    ........ RESPONDENT
                                Through:     Mr. Lovkesh Sawhney, APP for the State.
                                             HC Somdutt, 3rd Battalion, Vikas Puri.
         CORAM:
         HON'BLE MR. JUSTICE S. RAVINDRA BHAT
         HON'BLE MR. JUSTICE G. P. MITTAL

         1. Whether reporters of local papers may be
            allowed to see the Order?                               Yes
         2. To be referred to the Reporter or not?                  Yes
         3. Whether the Order should be reported                    Yes
            in the Digest?

                                  JUDGMENT

G.P. MITTAL, J.

1. The Appellants Lokpal (since deceased) and Amrik Singh impugn the judgment dated 07.02.1998 and order on sentence dated 11.02.1998 whereby they were convicted for the offences punishable under Section 302/452/34 of the Indian Penal Code (IPC) and were sentenced to undergo life imprisonment and to pay fine of ` 5,000/- each for the offence punishable under Section 302 read with Section 34 IPC; were sentenced to undergo Rigorous Imprisonment for three years and to pay fine of ` 5,000/- each for the offence punishable under Section 452 read with Section 34 IPC.

2. The Appellant Lokpal died during pendency of the Appeal and by order dated 15.02.2011 the proceedings against him were ordered to have abated in Criminal Appeal No.72/1998. In fact, co-accused Chander Pal, Vikram Singh and Prem Kumar also faced trial with the Appellant; they were acquitted by the Trial Court by the impugned judgment on the ground that there was no evidence to show that they shared common intention with the Appellants.

3. On 30.04.1992 at 9:15 A.M. a DD No.16-B was recorded in Police Station (PS) Mangol Puri that a firing incident occurred at the house of Sultan Singh in Village Mangol Pur Kalan. SI Ashok Rana along with Constable Subhash reached Sultan Singh's house. The SI was informed that the two injured Ved Prakash and Sultan Singh had been removed to Jaipur Golden Hospital. The SI, therefore, proceeded to the hospital, leaving Constable Subhash at the spot to protect the scene of the incident.

4. On reaching the hospital, SI Ashok Rana collected the MLC of the deceased (Ved Prakash) (who was in an injured condition at that time). He was declared fit to make a statement. The SI recorded his statement Ex.PW-16/A. The deceased Ved Prakash stated that on 30.04.1992 at about 9:45 A.M. he was carrying a lota of lassi from his house. The Appellants and co-accused Chander Pal came out from the latter's house and called the deceased. The deceased stopped for a while but doubted their motive as he had enmity with the co-accused over some land. Therefore, he started running; he noticed that the three accused (the Appellants and Chander Pal) chased him. The deceased reached the bethak in Sultan Singh's house; co-accused Prem and Vikram Singh also reached there. The deceased entered the bethak. The Appellants also followed him inside the room. The Appellant Lokpal caught hold of the deceased and the Appellant Amrik Singh took out a revolver from his pant and fired at the deceased's neck from a close range. The deceased fell down. A number of persons reached there. Sultan Singh also entered the bethak and went forward to help the deceased but the Appellant also assaulted him. The other accused, Chander Pal, Vikram Singh and Prem Kumar were standing outside the room at the time of the incident. Since many people started collecting there, the Appellants and the co- accused fled away. The deceased informed the SI that the incident was witnessed by Sultan Singh (PW-2), Sheoraj Singh (PW-3) and Rishi Pal (PW-6). He (Ved Prakash) disclosed that he was taken to the Jaipur Golden Hospital by the neighbours.

5. On the statement of Ved Prakash, SI Ashok Rana made endorsement Ex.PW-16/B for registration of a case under Section 307/452/34 IPC. The IO collected the blood, bloodstained earth, earth control, three lead bullets. The MLC of the injured Sultan Singh (PW-2) was also collected. The same afternoon, the deceased Ved Prakash was shifted from Jaipur Golden Hospital to Batra Hospital where he succumbed to the injuries on 08.06.1992.

6. Co-accused Vikram Singh, Chander Pal and Prem were arrested, whereas the Appellants Lokpal and Amrik Singh obtained anticipatory bail from the Calcutta High Court. The bail granted by the Calcutta High Court was subsequently cancelled and the Appellants too were arrested. The Appellant Amrik Singh got recovered a revolver in pursuance of the disclosure statement Ex.PW-7/A. Co-accused Chander Pal also surrendered his licensed revolver. The licensed revolver of co-accused Prem was also taken into possession by the police of PS Shalimar Bagh.

7. During the course of investigation, three revolvers were sent for expert opinion to CFSL. The bullets recovered could not be connected to the three revolvers recovered from the Appellant Amrik Singh and co-accused Chander Pal and Prem.

8. Charges for the offences punishable under Section 302/452/120-B/34 IPC and under Section 25 of the Arms Act were framed against the Appellants and co-accused. On Appellants' pleading not guilty to the charge, the prosecution examined 33 witnesses.

9. PW-2 Sultan Singh, PW-3 Sheoraj Singh, PW-6 Rishi Pal, PW-16 SI Ashok Rana, PW-20 Lady Constable Asmeeta, PW-22 Head Constable Roop Chand, PW-11 Dr. Atul Kohli and PW-18 Dr. Rajiv Bhatt from Jaipur Golden Hospital, PW-28 Dr. Sumita Singh from Batra Hospital and PW-23 Dr. L.T. Ramani autopsy surgeon are the material witnesses. PWs 2, 3 and 6 are witnesses of the occurrence.

10. PW-2 Sultan Singh deposed that on 30th April (he could not tell the year on the ground that he was illiterate) four years back he was sitting in the verandah of his bethak. He heard the noise of "maar lo- maar lo". He saw Ved Prakash (the deceased) running, followed by the Appellants. They entered in the room i.e. his bethak. He also followed and went inside the bethak. The Appellant Amrik Singh fired a round from his pistol which struck the lota held by the deceased; the second round fired by the Appellant Amrik Singh struck the wall and the third one hit the deceased's throat. He came to his (the deceased's) rescue. The Appellant Amrik Singh pushed him, as a result of which he fell down and sustained injuries. Appellant Amrik Singh and Lokpal ran away from the spot. Sheoraj also come to the bethak.

11. The testimony of PW-3 is to the same effect except a little variation in the time of the incident. He deposed that on 30.04.1992 at about 9:30/9:45 A.M. he was proceeding to Sultan Singh's bethak from his house. He noticed Lokpal and Amrik Singh

chasing the deceased Ved Prakash. Ved Prakash entered Sultan Singh's bethak. Both Lokpal and Amrik Singh also entered the bethak. Sultan Singh was sitting in the verandah on a cot in front of the bethak. Amrik Singh fired a shot which struck the lota in the deceased's hands; the second bullet fired by Amrik Singh hit the wall. Lokpal caught hold of the deceased and the third round was fired by the Appellant Amrik Singh by putting the barrel on deceased's throat. He (the deceased) fell down and the Appellants escaped. He and Sukhdev removed Ved Prakash and Sultan Singh to Jaipur Golden Hospital.

12. PW-6 Rishi Pal gave an entirely different version. He testified that on 30.04.1992 at about 8:30 A.M. he was proceeding to the Gher from his house. Two persons ran after firing at Ved Prakash (the deceased) and escaped on a motorcycle. He stated that he could not identify the attackers. Ved Prakash fell down near his house as well as the house of Inder and Sultan. He, along with the Ved Prakash's took him to Jaipur Golden Hospital. The witness was cross-examined by the learned APP. He denied the suggestion that Lokpal and Amrik Singh were chasing the deceased Ved Prakash or that they had followed him to Sultan Singh's bethak and fired at him. He was confronted with the specific portions of his statement Mark X.

13. PW-16 SI Ashok Rana deposed that on 30.04.1992 he was posted at PS Mangol Puri.

On receipt of a copy of DD No.16-B he proceeded to village Mangol Pur. Public persons informed him that a firing incident had taken place in the house of one Sultan Singh. He reached the place of occurrence where he was informed that Sultan Singh and Ved Prakash had been taken to Jaipur Golden Hospital. While leaving Constable Subhash (PW-32) at the spot, he reached Jaipur Golden Hospital and collected the MLC Ex.PA of Ved Prakash. The doctor opined that the injured was fit to make the statement (on the application Ex.PW-11/A). He recorded statement Ex.PW-16/A and made endorsement Ex.PW-16/B and sent it to the Police Station for registration of a case. He then returned to the spot and took into possession various articles including the lota containing the bullet hole.

14. PW-20 Lady Constable Asmeeta and PW-22 HC Roop Chand are relevant only to the extent that the information regarding the firing in Mangol Pur Kalan village was received by PCR on 30.04.1992 at 9:12 A.M. and the same was recorded by DD entry at 9:15 A.M. by PW-22 HC Roop Chand.

15. PW-11 Dr. Atul Kohli deposed that on 30.04.1992 while working in Jaipur Golden Hospital he had given the fitness certificate Ex.PW-11/B on the application Ex.PW- 11/A.

16. PW-18 Dr. Rajiv Bhatt deposed about the arrival of deceased Ved Prakash in the hospital on 30.04.1992 at 10:15 A.M. He recorded the history of the patient and found him to be conscious and well oriented.

17. PW-28 Dr. Sumita Singh who was working as a doctor at Batra Hospital on 30.04.1992 deposed that on 30.04.1992 the patient was referred to Batra Hospital from Jaipur Golden Hospital. She found the patient to be conscious. There was an open wound on the left side of the neck measuring 1cm x 1cm. There was an abrasion on the left side of the chest. No other external injury was noticed by her.

18. PW-23 Dr. L.T. Ramani, the autopsy surgeon conducted postmortem examination on the dead body of the deceased Ved Prakash. He inter alia found "a healed up stitched wound on the front of the neck over the trachea". He opined that healed up scar found on the left side of the neck was corresponding to entry wound by a fire arm projectile, recovered from the body.

19. On closure of the prosecution evidence, the Appellant was examined under Section 313 Cr.P.C. in order to enable him to explain the incriminating evidence appearing against him. The Appellant (Amrik Singh) denied the prosecution's allegations and pleaded false implication. He raised the plea of alibi and stated that he was in Calcutta at the time of the alleged incident. He stated that he and his brother Lokpal were falsely implicated in the case because of Sultan Singh's enmity with his father. The Appellant Amrik Singh also examined DW-3 who corroborated the version, spoken to PW-6 to prove that the injury on the deceased's person was caused by some unknown assailants and that the Appellant Amrik Singh and Lokpal (since deceased) were not present at the spot at the time of the incident. DW-6 was examined to prove that the Appellant was his tenant.

20. By the impugned judgment, the Trial Court rejected the Appellant's contention that there were major contradictions or discrepancies in the evidence adduced, that PWs 2 and 3 were procured witnesses or that the dying declaration Ex.PW-16/A was forged or manipulated. The Trial Court held that whether the Appellant Amrik Singh was a

party to the FIR dated 28.04.1992 (under Section 448 IPC) or not was not material in view of the reliable and ocular evidence proving commission of the offence by the Appellant. The testimonies of PWs 2 and 3 was found to be consistent on the firing by the Appellant Amrik Singh in furtherance of common intention with Appellant Lokpal. The Appellants were accordingly convicted and sentenced as stated earlier.

21. We have heard Mr. V.K. Malik learned counsel for the Appellant and Mr. Lovkesh Sawhney, learned APP for the State and have perused the record.

22. It is urged by the learned counsel for the Appellant that the circumstances proved would show that the Appellant Amrik Singh was falsely implicated in the case. There were contradictions in the timing of the incident, recorded by PW-20 in the PCR form and PW-22 in the Police Station, as deposed by PWs 2, 3 and 6. There was no mention of the name of the Appellants in the MLC Ex.PA of the deceased Ved Prakash (who was alive at that time). Rather, the MLC Ex.PA records that the patient himself disclosed that "patient got injured when some persons attacked him with bullet in Mangolpur Kalan at around 09:45 A.M. on 30.04.1992." It is urged that since DD No.16-B Mark A was recorded in PS Mangol Puri at 09:15 A.M., it was impossible that the incident could have taken place at 09:45 A.M. as disclosed by the deceased.

23. It is contended that the testimony of the three eye witnesses are discrepant on important aspects of the prosecution version. The revolver recovered at the Appellant's instance could not be connected to the incident as according to the CFSL Report Ex.PW-30/H5, the bullets were not fired from the revolver recovered from the Appellant.

24. It is contended that the Appellant Amrik Singh or for that matter the Appellant Lokpal (since deceased) were not even parties to the FIR recorded in PS Mangol Puri on 28.04.1992 under Section 448 IPC and thus there could not have been any motive for the Appellant to have opened fire on the deceased.

25. On the other hand, Mr. Lovkesh Sawhney, learned APP submits that absence of the assailants name in the MLC Ex.PA was immaterial as the doctor was mainly concerned with the treatment of the patient and not his history as to who had fired on

him. The learned APP placed reliance on Pattipati Venkaiah v. State of Andhra Pradesh, 1985 (4) SCC 80.

26. It is emphasized by the learned APP that the deceased Ved Prakash's statement Ex.PW-16/A was recorded immediately upon reaching the hospital, which later turned into a dying declaration on account of his succumbing to the bullet injury. The statement was recorded after obtaining a fitness certificate and nothing could be elicited in PW-16's cross-examination to render Ex.PW-16/A suspicious. There is no reason to doubt the said dying declaration. Small variations about the exact time of the incident and discrepancies in the deposition of the witnesses to the occurrence are natural. Rather, it shows that the witnesses were truthful and not tutored to make a parrot like statement. It is urged that the fact that the bullets recovered were not connected to the Appellant's revolver does not, in any way, affect the prosecution case as the Appellant had absconded after the incident and it was only on 04.03.1993 when the Appellant's disclosure statement was recorded leading to the recovery of the revolver.

27. The first information about the incident was transmitted by PW-20 Lady Constable Asmeeta at 09:12 A.M. on 30.04.1992 which was recorded by PW-22 HC Roop Chand at 09:15 A.M. by entry in the log book Ex.PW-22/A. The message was to the effect that a firing incident occurred in Mangol Pur, Outer Ring Road near Police line. The time of the incident in the MLC, was given by the deceased Ved Prakash as 09:45 A.M. (on his arrival in the hospital at 10:15 A.M.). PW-2 gave the time of the incident as 10:15 A.M.; PW-3 stated that the incident took place at about 09:30/09:45 A.M. It was only PW-6 who deposed that the incident took place at about 8:30 A.M.

28. Since wireless message was recorded by DD No.16-B at 09:15 A.M., there cannot be any doubt that the incident did take place just before 09:30 A.M. when it was recorded by PW-22 and was passed on to PS Mangol Puri.

29. It has to be borne in mind that the deceased Ved Prakash as well as PWs 2 and 3 were villagers residing in village Mangol Pur Kalan. Everyone, particularly villagers give the time of any incident only by approximation. Thus, if the deceased Ved Prakash named the time of incident as 09:45 A.M., PW-2 gave the time of incident to be 09:30 /09:45 A.M. and PW-3 stated that the incident took place at about 10:15 A.M.,

reasonable latitude in the difference of timing of the incident has to be given. Since Ved Prakash was taken to the hospital and had reported to the Casualty in Jaipur Golden Hospital at 10:15 A.M., we can safely presume that the incident took place sometime between 09:00 - 09:10 A.M. The variation in the timings as deposed by the deceased Ved Prakash and PWs 2 and 3 is natural and does not affect the prosecution version.

30. We are not inclined to believe the time of the incident to be 08:30 A.M. as the witness was found to be too pliable and ready to help the accused persons at all costs. As observed by the Trial Court, he went to the extent of sending an Affidavit running into three pages from Bombay (before leaving for Kuwait) to the Court that the accused persons had been implicated in the case falsely.

31. It is true that the name of the assailants is not recorded in MLC Ex.PA of the deceased Ved Prakash. As per the MLC, the deceased had disclosed that some persons attacked him with bullets. It is important to note that Jaipur Golden Hospital is a private hospital. All the medico legal cases are normally taken to Government hospitals by the police and even by the private persons. The doctors at private hospitals are not usually familiar with the procedure of recording history of the patients. It is just possible that if the doctor had asked the name of the assailants, the deceased might have disclosed it. In the case of Pattipati Venkaiah (supra) the Supreme Court observed that the primary effort of a doctor is to save the life of the person brought to him and inform the police in medico legal cases. The Doctor is not concerned as to who committed the offence and whether the person brought to him was a criminal or an ordinary person. Thus, merely because the name of the assailants is not recorded in the MLC by the doctor on duty in a private hospital, it cannot be inferred that the assailants were unknown to the deceased.

32. Of course, the revolvers recovered from the Appellant or even produced by the co-

accused were not connected to the bullets fired during the incident accordingly to the CFSL Report Ex.PW-30/H5. At times, a suspect tries to mislead the police by producing a weapon which was not used in the crime. The weapon could be concealed or destroyed and its recovery is not possible. That, however, does not mean that the culprit can, by adopting such means escape the clutches of law. An important piece of evidence would undoubtedly be missing, due to absence of the

weapon of offence or if the weapon produced is not connected to the injury caused or to the bullet fired as in this case. In such circumstances, the Court has to look to the other evidence to discern whether the offence, with which the accused has been charged with, is proved to hove been committed by him.

33. It is also important to note that the Appellant obtained anticipatory bail from Calcutta High Court and was arrested in this case only on 04.03.1993 (after about eleven months of the incident). He was interrogated in presence of his counsel Shri O.P. Ahuja (see statement of PW-7 Toddar Mal). Thus, it is evident that the Appellant was acting under a legal advice since the very beginning. The fact that the bullets were not connected to the revolver recovered from him does not come to his rescue, if the case against him is otherwise proved.

34. It was argued by learned counsel for the Appellant that he was not an accused in case FIR No.254/1992 registered on 28.04.1992 under Section 448 IPC and thus, there was no motive for commission of this offence by him. It is true that the Appellant was not an accused in the trespass case, but, at the same time, his father Shiv Charan was an accused in the said case. Therefore, the Appellant could have a motive to cause harm to the deceased as there was dispute on the question of occupation/trespass of the Gaon Sabha land by Shiv Charan. We would not go into the question whether the aforesaid FIR was true or false. Suffice it to say that there was some bad blood between the family of Shiv Charan and the deceased in a dispute with regard to land. This gave some motive to the Appellant for commission of the offence. However, since this case is based on direct evidence, the motive pales into insignificance and has to be judged on the strength of the evidence produced by the prosecution.

35. It is urged by the learned counsel for the Appellant that there are discrepancies, contradictions and improvements in PWs 2 and 3 testimonies; there is no reason to discard PW-6's testimony who categorically stated that some unknown persons came on a motorcycle and escaped after firing on the deceased. The Appellant and Lokpal (since deceased) were putting up at Calcutta on the date of the incident and thus, the prosecution case was not proved against the Appellant. In any case, it is argued that there were reasonable doubts in the prosecution version entitling the Appellant to an acquittal.

36. The Trial Court dealt with contradictions and improvements in detail. The observations of the Trial Court are as under:-

" XXXXXX XXXXXX XXXXXX

37. Neither PW6 nor DW3 inspired confidence. Even if, PW6 may have been present at the time of commission of offence and about whose presence the court entertains no doubts, in the light of statement of PW16, but still the version given by him that two scoundrals had come on motorcycle and fired does not appear truthful. His conduct in addressing a letter to the court is itself demonstration of his intention that his sole concern has been to bail-out the accused persons and, in particular, Lokpal and Amrik. DW3 is, in fact, a partisan witness as is admitted by him about his relationship with the accused Lokpal and Amrik and I have no reason but to discard his testimony altogether. I do not, therefore, share the perceptions of the Ld. Counsel for the accused that DW3 and PW6 should be believed in preference to PW2 and PW3.

XXXXXX XXXXXX XXXXXX

40. Coming to the evidence on record, the plea of the accused Lokpal and Amrik that they were not in Delhi and that they were at Calcutta is not believable. The witness of Calcutta examined by them, namely, DW6 Mohd. Amin speaks of the middle of the month of April 1992 when he had received a message from the father of these accused persons about a murder having taken place at their house in Delhi. The incident is of 30.4.92, even though, the witness could forget the date of a month. He could very well remember if it was the last day of April 1992. But he says that it was the middle of the month. A perusal of the deposition of DW6 which has been referred to in the earlier part of the judgment would leave no room for doubt that whatever is stated by DW6 is just not true. Similarly, I am not inclined to believe the father of these accused, namely, DW4 that these two accused were in Calcutta on the day of the incident. Merely, because these two accused were not made accused in respect of the incident of 28-4-1992 is of no consequence.

41. Apart from the fact that the plea of alibi taken by the accused Lokpal and Amrik is not proved on record, the conduct of these accused persons in applying for anticipatory bail from a court at Calcutta is, in fact a pointer to their quilt. The possibility of their involvement in the crime is implicit in their very conduct soon after the commission of the offence and such a conduct is relevant under section 8 of the Evidence Act. Such probability is turned into certainty when the deposition of PW2 and PW3 and version given by the deceased soon after the occurrence is adverted to.

42. The eye witnesses in the form of deposition of PW2 and PW3 are believable. The so-called improvement referred to by the Ld. defence counsels of the kind referred to during the discussion of evidence in the earlier part of the judgment and the so called contradictions in their deposition as high-lighted by the Learned Defence counsel in the aforesaid evidence do not appear to me to be significant. There are bound to be some variance in the manner of expression. The substance of the deposition of the PW2 and PW3 is similar with respect to the methodology in which the victim was harmed and role played by each of these two accused persons. The position of PW2 was such that he could not have seen if PW6 had also seen the occurrence. In so far as PW3 is concerned, he has witnessed the incident from a different place than where PW2 was positioned and, therefore, in the circumstances, there is a variance in the deposition of PW2 and PW3 as to the precise stage at which the shots were fired, namely, if all the shots were fired inside the room as stated by PW2 or that earlier shots were fired at the doorway of the bethak and in the manner stated by PW3. The court finds no significant contradiction in their deposition as to the methodology adopted in harming the victim. The evidence on record does not permit of two views so that one favouring the accused could have been resorted to. No doubt, there have been strained relations between the father of these two accused and PW2 but this would not be sufficient to discard his deposition or that of PW3. The enmity of these witnesses with the accused has not been of the kind that they would go so far as to implicate him in a murder case.

The variance in the deposition of PW2 and PW16 as to where PW2 was examined, whether PW2 was taken in stretcher to inside Jaipur Golden Hospital or he walked on foot from the car, whether PW2 could feel the presence of PW3 or not, whether PW3 could feel the first two shots being fired from outside or at the doorway to the room from the place where he viewed the incident, the slight difference in timings as recorded in DD, as given by PW2, as recorded in MLCS Ex.PA and PB, the obvious anxiety on the part of PW2 and PW3 to disown the presence of PW6 are quite a natural thing. There is, otherwise, no contradiction as to the shots fired as are contended by the Ld. Defence counsel. It would be wrong to dub their deposition as being those of highly partisan witnesses. The court believes PW2 and PW3 as to their presence, their ability to see the occurrence and as to the occurrence as stated by them.

43. In so far as the alleged contradictions in the deposition of PW2 and PW3 and what is set out in Ex.PW16/A, namely, the version of the deceased soon after the occurrence is concerned, there is, in fact, no contradiction whatsoever. Imagine the situation. A person is being chased, he is finally tied down by one of the two chasers and the other fires at him. In such a situation, how could one expect the person being chased to count the number of shots that had misfired. Therefore, to me, there appears to be no contradiction whatsoever, in the ocular deposition of PW2 and PW3 and the version of the deceased

soon after the occurrence as appearing in Ex.PW16/A as to the methodology in which the victim was harmed by Lokpal and Amrik.

XXXXXX XXXXXX XXXXXX"

37. Thus, it may be seen that the Trial Court has given sound reasons not to attach undue importance to the contradictions in the testimonies of PWs 2, 3 and 6. PW-6 was completely disbelieved as the Trial Court concluded that he was partisan and had a desire to help the accused; the version given by him was highly improbable. Obviously, if two unknown assailants had opened fire on the deceased, the latter and his relatives' anxiety would be to get to the truth instead of letting the actual culprit and roping in some person even if there was some previous animosity towards him. It is true that one or two persons can be falsely roped in if there is long standing enmity between two parties, but even in such cases the actual assailant/assailants are never allowed to go scot free.

38. The plea of alibi was also rightly rejected, as, except for DW-4, (the Appellant's father's testimony) there was no evidence to show that the Appellant was in Calcutta on the day of the incident. The testimony of DW-6 that the telephone call from the Appellant's father was received in mid April (while the incident took place on 30.04.1992) itself belied the alibi plea.

39. Small variations about the manner of assault too cannot be attached with much importance as rightly held by the Trial Court that PWs 2 and 3 saw the incident from different places. Moreover, the mental condition of the deceased was simply to save himself. He was, therefore, more concerned about the bullet fired at him than anything else.

40. The Trial Court, in our considered opinion, rightly rejected the contention that the discrepancies and the improvements pointed out were material as to affect the substratum of prosecution version. The power of observation, retention and reproduction differs from person to person. One person may attach importance to the minute details whereas another may take note of only important aspects of the happening. The witnesses PWs 1 and 2 and the deceased were one on the manner of assault i.e. the chase by the Appellant; opening fire while the deceased had reached Sultan Singh's bethak and their escape.

41. In this view of the matter we are of the opinion that the contradictions / improvements pointed out on Appellant's behalf do not affect the prosecution case

42. It was canvassed on behalf of the Appellant that the deceased was not in imminent danger or fear of death and, therefore, the statement Ex.PW-16/A cannot be taken as a dying declaration. It is emphasized that the statement Ex.PW-16/A is a fabricated and manipulated statement and there is no reliable evidence on record to prove that the deceased Ved Prakash was fit to make the statement at the time it was recorded by the IO.

43. The MLC Ex.PA shows that the patient was conscious and well oriented and his vitals were stable. By endorsement Ex.PW-11/B, on the application Ex.PW-11/A Ved Prakash was declared fit to make a statement. PW-16 SI Ashok Rana testified that the application Ex.PW-11/A was moved by him to the doctor at 10:30 A.M. and after obtaining the fitness certificate he proceeded to record the statement of the deceased. He stated that the endorsement was made by the doctor in his presence. Apart from giving a suggestion that the application Ex.PW-11/A was moved by him not on 30.04.1992 but on 01.05.1992, nothing was elicited in his cross-examination to show that PW-16 was lying on this count. Admittedly, the endorsement Ex.PW-16/B was made on the statement Ex.PW-16/A before 11:30 A.M. i.e. the time when the rukka was dispatched to the Police Station for registration of a case under Section 307/452/34 IPC. SI Ashok Rana being a public servant is presumed to have discharged his duties honestly. In any case, he could not have taken the risk of showing the rukka to be dispatched on 30.04.1992 at 11:30 A.M. and would record the statement Ex.PW-16/A on the next day i.e. 01.05.1992. Of course, PW-11 deposed in his cross-examination that the endorsement might have been made by him on 01.05.1992 at 11:00 A.M. as he must be on duty on 01.05.1992. The witness was re-examined by the learned APP and he admitted that he had not consulted the duty roster of the year 1992 before making the statement in the Court. Thus, the fact that the fitness certificate was given by him on 01.05.1992 was only on account of the guess work of PW-11 and the testimony of PW-16 has to be preferred over PW-11's testimony.

44. It is very important to note that PW-11 Dr. Atul Kohli could not have given the fitness certificate on 01.05.1992 as the deceased had been removed to Batra Hospital

on 30.04.1992 itself and was admitted there at 2:30 hours. Since the deceased was not admitted in Jaipur Golden Hospital on 01.05.1992, the fitness certificate could have been given by PW-11 Dr. Atul Kohli only on 30.04.1992 at 11:00 A.M. The contention raised on Appellant's behalf is fallacious.

45. It is urged by the learned counsel for the Appellant that when the statement Ex.PW-

16/A was made by the deceased he was not in expectation of death and, therefore, the statement made (by the deceased) would not be admissible in evidence under Section 32 of the Evidence Act. Under Section 32 of the Evidence Act, it is not required that at the time of making the statement the person should be in expectation of death. As per Section 32, statement written or verbal of relevant facts made by a person who is dead is admissible when it relates to the cause of his death. We are supported in this view by B. Shashikala v. State of Andhra Pradesh, 2004 (13) SCC 249, where it was held that there was no legal requirement that the dying declaration would be admissible in evidence only when the same is made in expectation of death.

46. It is true that the statement Ex.PW-16/A was recorded by SI Ashok Rana. Normally, the Courts attach more value to a dying declaration made to a doctor or to a Magistrate. However, there is no rule of law that the statement made to a police officer is valueless.

47. In Gulam Hussain & Anr. v. State of Delhi, 2000 (7) SCC 254, a dying declaration recorded by an ASI in the hospital after getting a fitness certificate from the doctor was relied on by the Supreme Court.

48. In case of Dhan Singh v. State of Haryana, 2010 (12) SCC 277, it was held that there was no mandatory requirement that the dying declaration had to be recorded by any designated or a particular person. It was only to eliminate chances of any doubt of false implication by prosecution that a dying declaration recorded by a Magistrate or a doctor is preferred. A dying declaration recorded by a Head Constable in the circumstances of the case was upheld by the Supreme Court.

49. In this case, SI Ashok Rana obtained the fitness certificate Ex.PW-11/B from PW-11 Dr. Atul Kohli. The patient was conscious and well oriented. The SI, at the time of recording the statement did not know that the deceased would eventually die. It was in these circumstances he wanted to have the first hand information from injured and

to proceed further in the matter against the culprits. Unfortunately, the deceased succumbed to the single gunshot injury suffered by him on the neck and the statement made by him became a dying declaration. In the circumstances, the dying declaration recorded by the Police Officer cannot be rejected in this case.

50. It may also be noticed that the prosecution in this case has produced direct evidence regarding the commission of the offence by the Appellant and the dying declaration is sought to be used only for the purpose of corroboration. In our opinion, the statement Ex.PW-16/A made by the deceased is credible and believable. He attributed specific acts against the Appellant and the co-accused Lokpal (since deceased). Co-accused Chander Pal, Vikram Singh and Prem Kumar were not assigned any role of exhortation or holding the deceased. If the deceased wanted to implicate every one, he might have implicated the co-accused Chander Pal, Vikram Singh and Prem Kumar too and assigned them a specific role. In the circumstances, the dying declaration Ex.PW-16/A by itself is sufficient to base Appellant's conviction, though, as stated above, there is ample direct evidence to establish the guilt of the Appellant.

51. It is contended by the learned counsel for the Appellant that the prosecution has not placed on record the copy of the FIR bearing endorsement that it was received by the illaqa Magistrate immediately after it was registered. The Constable who is alleged to have delivered the copy of the FIR to the Magistrate has not been examined and there is every possibility of embellishment and introduction of a coloured version to rope in innocent persons by the prosecution.

52. It may be noticed that the case was initially registered under Section 307 IPC.

Despite catena of judgments (Devender @ Kallu v. State, 2011 (2) JCC 1453; Dharambir & Anr. v. The State, 2002 (3) JCC 2059; Moti Lal & Anr. v. State of Rajasthan, 2000 (9) SCALE 1; Bal Krishan Sita Ram Pandit v. The State, 1987 CRl. LJ 479; Ishwar Singh v. The State of UP, AIR 1976 SC 2423) the Delhi Police remains under the impression that the requirement of compliance with Section 157 of the Code of Criminal Procedure (Cr.P.C.) is to be only in relation to an offence punishable under Section 302 IPC. Section 157 in terms, however, does not differentiate between Section 302 IPC or any other cognizable offence. Therefore, it is expected of the police to send a report to the Magistrate in all cases forthwith.

53. It is, however, established on record that the fitness certificate Ex.PW-11/B was given by PW-11 Dr. Atul Kohli at 11:00 A.M. and the statement Ex.PW-16/A must have been recorded immediately as the deceased was shifted to Batra Hospital on 30.04.1992 itself at 2:30 P.M. in peak traffic hours. It must have taken at least one hour in reaching Batra Hospital in extreme South of Delhi from Jaipur Golden Hospital in extreme North-West and completion of formalities regarding the deceased's admission. It may also be noticed that the IO was not cross-examined regarding the delay/ non sending of report to the Illaqa Magistrate. In the facts and circumstances, we cannot throw, otherwise proved case of the prosecution.

54. In Balram Singh & Anr. v. State of Punjab, 2003 (11) SCC 286, the Supreme Court observed that if the ocular evidence adduced by the prosecution is worthy of acceptance, the element of delay in registering the FIR/complaint or sending the same to the jurisdictional Magistrate by itself would not in any manner weaken the prosecution case. We find the testimony of the two witnesses i.e. PWs 2 and 3 and the dying declaration Ex.PW-16/A to be credible and reliable and, therefore, the failure of the prosecution to prove that the report regarding registration of a case was immediately sent to the Illaqa Magistrate is not fatal to the prosecution case.

55. We would like to refer to Paras Yadav & Ors. v. The State of Bihar, 1999 (2) SCC 126, where the Supreme Court observed that the lapse or omission committed by the Investigating Agency designedly or because of negligence would put the Court on guard to examine the evidence de hors such omission to find out whether the evidence produced is reliable or not. The contaminated conduct of the official should not stand in the way of the Courts getting to the truth. Thus, in our view, non proof of sending of the police report to the Illaqa Magistrate forthwith as required under Section 157 Cr.P.C. is not fatal to the prosecution case.

56. The learned counsel for the Appellant emphasized that there is no medical evidence to show that the deceased's death was the direct cause of the gunshot injury alleged to be inflicted by the Appellant. Rather, the postmortem report Ex.PW-23/A opined that the cause of death was due to multiple organ failure. It is established on record that the deceased suffered the gunshot on the neck piercing the wind and the food pipe. The Appellant was taken to one of the best hospitals in the area i.e. Jaipur Golden Hospital. The relatives of the deceased wanted the best medical attention for him. He

was, therefore, shifted to the best equipped and a bigger hospital i.e. Batra Hospital and Medical Research Centre on 30.04.1992 at 02:30 P.M. The Trial Court dealt with this contention as under:-

"48. The homicidal nature of the death of the deceased is proved from the sequence of events starting from the injuries as recorded in the MLC prepared at Jaipur Golden Hospital which fact is corroborated by the Doctor at Batra Hospital. The report of the Autopsy Surgeon does not appear to be a satisfying one. This is the least I can speak of the Autopsy Surgeon. It was the duty of the Autopsy Surgeon to have given an opinion with reference to the Injury No.1 as on the day of assault and he was supposed to say whether it was sufficient to cause death. His opinion in the form of an endorsement that the patient died of multiple organ failure as clinically diagnosed by the Doctors at Batra Hospital cannot be said to be a due performance of the duties of an Autopsy Surgeon. The Doctor at Batra Hospital was giving the cause of death as on the date of death and as on that date it was obviously the multiple organ failure. However, the evidence on record proves that it was the Injury No.1 which was the cause of death despite the surgical intervention and an attempt to save the victim.

49. The Doctors of the Batra Hospital could not be accused of the negligence nor could the Surgery performed at Batra Hospital or the post surgery complications could be treated to be the cause of death. The Surgery performed at Batra Hospital and the post-operative complications only deferred the timing of death which is proved to have been due to the fact that the victim was fired at on the neck resulting in the damage to his wind pipe as well as the food pipe. Healed up scar on the left of the neck, as stated by the Autopsy Surgeon did not mean that internal injuries consequent upon Injury No.1 were healed up. The death of the deceased is, thus, proved to be homicidal. I am not inclined to hold that the death of the deceased was natural or accidental, in the facts and circumstances of this case."

57. At this stage, we would like to refer to Bhagirath v. State of Haryana, 1997 (1) SCC 481, where death of deceased Nihal Singh as per the postmortem report was opined to be on account of toxemia resulting from peritonitis. The deceased Nihal Singh had suffered ten punctured wounds for which he was shifted to a bigger hospital at Rohtak. It was held that the cause of death was the injuries suffered resulting into toxemia. Bhagirath (supra) fully applies to the facts of this case as deceased Ved Prakash succumbed to the gunshot injury on his neck resulting in multiple organ failure. It cannot be said by any stretch of imagination that the deceased died on account of medical negligence or due to lack of medical care. The Appellant, thus, cannot escape liability for causing the gunshot injury which resulted in the deceased's death under Section 302/34 IPC.

58. On the basis of the evidence produced, this Court is satisfied that the testimonies of PWs 2 and 3 are consistent about the sequence of events. Both the witnesses and the deceased are consistent about the Appellant and others, chasing the deceased upto Sultan Singh's bethak and firing three shots; the first hitting the lota, the second hitting the wall and the third one piercing the deceased's neck. PWs 2 and 3's testimonies are corroborated by the dying declaration Ex.PW-16/A, lota Ex.PB had two bullet holes established by CFSL Report Ex.PW-30/H2. The prosecution version is further corroborated by recovery of the three lead (used cartridges) from Sultan Singh's bethak.

59. In view of the above discussion, we do not find any merit in the appeal. The same, therefore, has to fail. The appeal is dismissed in these terms.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE AUGUST 8, 2011 vk