2015 ALL SCR 3830
(SUPREME COURT)

FAKKIR MOHAMED IBRAHIM KALIFULLA AND UDAY UMESH LALIT, JJ.

Mohan Lal Vs. State of Rajasthan

Criminal Appeal No.1142 of 2008

31st July, 2015.

Petitioner Counsel: Dr. SUMANT BHARADWAJ, Ms. MRIDULA RAY BHARADWAJ
Respondent Counsel: Mr. MUKUL KUMAR, Mr. SHOVAN MUHRA, Mr. MILIND KUMAR

Penal Code (1860), S.302 - Murder - Appeal against conviction - Prosecution case that appellant fired gunshot at his real brother causing his death - Incident witnessed by wife of deceased - Another brother of deceased also came to the spot on hearing the sound of gunshot - Deceased himself informed to said brother that appellant fired gunshot at him - Deceased also stated in his dying declaration about the property dispute between him and appellant which led to incident as also about the presence of his wife on spot of incident - Said declaration was attested by medical officer - Thus, evidence of witnesses supported by dying declaration - Even though recovered pellets were not sent for ballistic report, same cannot be held to be such a serious lacuna to interfere with order of conviction - Appeal dismissed. (Paras 8, 9, 10, 11, 12)

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment of the Division Bench of the High Court of Rajasthan Bench at Jaipur Bench dated 19.03.2007 in D.B. Crimial Appeal No. 997 of 2001. The appellant was tried for having committed murder of his real brother by name Babu Lal on 22.05.2000 at around 04.00 p.m with the aid of his licenced gun. The occurrence was witnessed by PW-4 and PW-5. Immediately after the occurrence the deceased was removed to the hospital in a jeep by the sons of PW-5. In the hospital the deceased was examined by PW-6 Doctor Mahendra Singh Chauhan who at the instance of Investigating Officer PW-12 certified the physical and mental condition of the deceased. Statement (Ex. P-8) of the deceased was recorded in the presence of PW-6 who also attested the same.

2. Based on the above evidence and after the arrest of the appellant, the weapon which was stated to have been used in the occurrence was also recovered in the house of the appellant. In the post-mortem report, PW-11 Doctor P.K. Tiwari after having spoken about the nature of the injuries stated on oath during the course of cross-examination that in spite of serious injuries sustained by the deceased he would have survived at least for two to three hours.

Having considered the evidence available on record the trial court found the appellant guilty of the offence under Section 302 and sentenced him for life imprisonment. The Division Bench found no good ground for interference with the same and confirmed the conviction and sentence by the judgment impugned in this appeal.

3. We heard Dr. Sumant Bharadwaj, learned counsel appering for the appellant on behalf of Ms. Mridula Ray Bharadwaj, learned counsel appointed by the Supreme Court Legal Services Committee. He fervently contended that the so called eye witness PW-4 and and the supporting witness PW-5 could not have been believed, inasmuch as, their statement in cross-examination was completely in variation with what was stated in the examination-in-chief. Learned counsel contended that the deceased having suffered serious injuries as noted in the post-mortem report and huge collection of blood i.e. 2000 ml, in the chest, there would have been no scope for the deceased to survive and, therefore, exhibit P-8 would not have come into existence and ought not to have been relied upon by the courts below. Learned counsel also contended that there was no definite evidence to show that the deceased could have been removed to the hospital within a short time as the hiring of a jeep at the place of occurrence itself had taken long time for the witnesses to move the deceased to the hospital. Learned counsel also contended that in the absence of ballistic report about the bullets recovered from the body of the deceased and necessary matching of the recovered bullets with that of the weapon alleged to have been recovered at the instance of the appellant, the story of the prosecution was wholly unreliable and the conviction, therefore, cannot be sustained.

4. As against the above submissions Mr. Mukul Kumar, learned counsel for the State contended that the evidence of PW-4, PW-5, PW-6 & PW-11 is cogent and convincing and supported by the dying declaration (Ex. P-8) apart from the recovery of the weapon itself at the instance of the appellant. Therefore, the conclusion drawn by the trial court as well as that by the High Court for convicting the appellant does not call for interference.

5. Having heard learned counsel for the parties and having perused the material papers placed before us, as well as the original record, we are also convinced that the judgment holding that the guilt, as found proved against the appellant, by the courts below was well justified.

6. The evidence of PW-4, in her examination-in-chief, was clear to the effect that at the time of the occurrence, she was in the house while the house of the appellant was in front of her house and the house of PW-5 was behind her house; that there was already some quarrel between the appellant and the deceased who are real brothers; that on the fateful day her husband was sleeping in the house and that at around 04.00 p.m, the appellant was hurling abuses against her husband; on hearing the same when her husband came out; the appellant opened fire at her husband with the gun; Pursuant to which the deceased suffered two gunshots in his chest and that he fell down while the appellant ran away from the scene of occurrence. This narration of PW-4 in her examination-in-chief was mostly supported again in the examination-in-chief of PW-5 who also stated that on the date of occurrence at about 04.30 p.m he was in his house which was behind the house of the deceased; he heard the noise of gunshot which came from Jagh; pursuant to which he rushed to the house of his deceased brother Babu Lal where he found that PW-4 was weeping and the body of deceased was lying in the pool of blood. He has also clearly stated that at that point of time the deceased was able to speak and when PW-5 asked him as to what happened, the deceased told him that the appellant had inflicted gunshot injuries with the gun which belonged to the appellant. He also stated in the course of the examination-in-chief that when the police enquired the deceased in the hospital, that they recorded the statement of the deceased and got his thumb impressions which was Ex. P-8. He specifically made a statement that on a query by the police the deceased stated "Mohan Lal inflicted gunshot at me."

7. While referring to the above two witnesses the learned counsel, Dr. Bharadwaj vehemently contended that in the cross-examination the said witnesses made a different story which gave a clean chit to the appellant inasmuch as the version in the cross-examination was that the deceased was unconscious after he sustained injuries at the place of occurrence and, therefore, the story of the prosecution that the deceased himself made a statement by way of dying declaration as against the appellant is not reliable. We must point out that there are some variations in the statement of PW-4 and PW-5 made in the examination-in-chief and what they have stated in the cross-examination. In fact, in respect of PW-4, we must also point out that at the end of the cross-examination, she stated that "it is wrong to state that I did not see the incident and I am making false statement on the advise of the policemen." Thereby in effect PW-4 virtually confirmed her version in examination-in-chief by not sticking to her varied version in the cross-examination.

8. Having closely analysed the version of the above two witnesses, the manner in which the witnesses narrated the occurrence in their examination-in-chief, we are of the view that the deceased, the appellant and the witnesses being closely related to each other, it was quite apparent that some variation in the statement in cross-examination than what was stated in the examination-in-chief must have been made half heartedly. As noted earlier, the denial of the suggestion by PW-4 at the end of her cross-examination virtually wiped out whatever contra stated by her in cross-examination and thereby re-affirmed her version in examination-in-chief.

9. When we examine the contents of Exhibit P-8 dying declaration relied upon by the courts, below we find that there would have been no scope for any manipulation or creating the said document for implicating the appellant. The document when perused, we find that narration in the statement gives every fact which would have been only in the exclusive knowledge of the deceased with reference to the nature of the dispute that was prevailing between the appellant and the deceased relating to the property of their mother which ultimately provoked the appellant to assault the deceased with the gun. The statement also makes it clear that PW-4 who was very much there by the side of the deceased when the appellant caused the gunshot injuries. The writing of Ex. P-8 also shows that the nature of writing was natural and there is very little scope to doubt its contents as well as how it would have come into existence.

10. PW-6 Dr. Mahender Singh Chauhan who attended on the deceased made it clear that the deceased was brought to the hospital at 06.00 p.m and a requisition was made under Exhibit P-7 as to the physical and mental condition of the deceased. PW-6 certified that the deceased was conscious to make the statement. Based on which Exhibit P-8 came to be recorded in his presence and the thumb impressions of the deceased was taken. At the bottom of Exhibit P-8, PW-6 has specifically written in his own handwriting 'statement attested" by him on 22.5.2000 at 07.00 p.m.'. Therefore, the eye-witness account of PW-4 and PW-5, on the one hand, was supported by the evidence of PW-6 and further supported by Exhibit P-8.

11. Thus, the version spoken by the witnesses and the statement made by the deceased was fully supporting the case of the prosecution that it was the appellant who was responsible for the killing of the deceased. It was further supported by the evidence of PW-11 who stated in uncontroverted terms that there was every possibility of the deceased having survived for two to three hours even after having suffered serious injuries on his chest.

12. In the light of the said fool proof evidence against the appellant when we consider the contention that the recovered pellets were not sent for ballistic report in order to implicate the appellant, we are of the view that the same cannot be held to be such a serious lacuna to interfere with the conclusion of the courts below.

13. In the light of the overwhelming evidence available on record as relied upon by the courts below, we do not find any scope to interfere with the conclusion arrived at by the courts below.

14. The appeal fails and the same is dismissed.

15. Before parting, we must record our appreciation for the assistance rendered by learned counsel, Dr.Sumant Bharadwaj appearing on behalf of learned counsel, Ms. Mridula Ray Bharadwaj for the appellant. We direct the Supreme Court Legal Services Committee to pay to her a sum of Rs. 10,000/- as remuneration for ably assisting this Court.

Ordered accordingly.