Arvind Kumar Vishnoi vs State of Uttarakhand <BR> State of Uttarakhand Vs Mahipal Singh and others.

U.C. Dhyani, J.—The present criminal appeal as well as the Government appeal are directed against the same judgment and order dated 22.12.2001, passed by learned Sessions Judge, Nainital in Sessions Trial No. 328 of 1995, whereby accused / appellant Arvind Kumar Visnoi is convicted u/s 302 of the Indian Penal Code, 1860 and sentenced to imprisonment for life, and also directed to pay fine of Rs. 10,000/- in default of payment of which he has been further directed to undergo rigorous imprisonment for a period of two years. Vide same judgment and order the accused / respondents Mahipal Singh, Sunil Kamboj alias Pappu and Brijesh Kumar have been acquitted of the charge of offence punishable u/s 302 read with Section 34 of I.P.C.

Prosecution story, in brief, is that P.W.1 Harendra Singh Dhillon had gone for some work to Kedar Singh Chauhan (deceased) resident of Nai Basti, Jaspur. After their meeting was over, Kedar Singh Chauhan offered Harendra Singh Dhillon to drop him at the bus station on his scooter. At about 06:00 P.M. near Singhal Nursing Home, a Maruti car bearing registration No. DDD 1784 came from the opposite direction and after overtaking the scooter obstructed its way. Accused Arvind Kumar Visnoi (A.S.D.M. Rudrapur), Mahipal Singh, Sunil Kamboj alias Pappu and his brother Brijesh Kumar, duly armed with weapons alighted from the car and after pushing Harendra Singh aside from the scooter, started firing at Kedar Singh Chauhan, who fell down on the ground. On raising the alarm and on hearing gunshots Rupendra Singh Bagga (P.W.2) resident of Bhagwantpur and many other persons came there, on which four accused made good their escape. There was sufficient light in which the informant Harendra Singh and the witnesses recognized the accused persons. P.W.1 Harendra Singh and P.W.2 Rupendra Singh Bagga brought the injured Kedar Singh to the police station on the same day i.e. 29.11.1992 at about 06:10 P.M., and lodged the first information report. On the basis of said first information report, chik FIR (Ext. Ka-1) was prepared and Crime No. 467 of 1992 was registered against accused Mahipal singh, Sunil Kamboj alias Pappu, Brijesh Kumar and Arvind Kumar Visnoi initially in respect of offence punishable u/s 307 of I.P.C. Injuries on the person of Kedar Singh Chauhan (before his death) were recorded by P.W.3 Dr. P.K. Dixit on 29.11.1992 at 07:15 P.M. who prepared injury report (Ext. Ka-2). On the same day, a dying declaration (Ext. Ka-6) of injured Kedar Singh was recorded by S.D.M. Kashipur (P.W.6) in the presence of P.W.3 Dr. P.K. Dixit, Cardiologist. In the dying declaration the injured before his death has stated that accused Arvind Kumar Visnoi s/o Udai Raj Singh Visnoi with his 12 bore gun fired twice at him. He further stated that accused Mahipal Singh, Sunil Kamboj and Brijesh Kumar were accompanying him. He has also stated that he had enmity with these persons and they robbed him of Rs. 20,000/- cash. The incident took place near Singhal Nursing Home, Jaspur. At the end of the dying declaration it is stated that the accused had threatened him to kill, regarding which he had already informed the police. Dr. P.K. Dixit, Cardiologist had endorsed on the dying declaration that the patient was fully conscious and was in a position to make a statement. The next day i.e. 30.11.1992 Kedar Singh Chauhan succumbed to the injuries received by him and the dead body was taken for postmortem examination. Dr. J.K. Goel (P.W.4) conducted postmortem examination on the dead body on 31.011.1992 at 04.46 P.M. and prepared autopsy report (Ext. Ka-5). The Medical Officer recorded two gunshot wounds on the dead body. He opined in the report that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. Police took the dead body in their possession and prepared inquest report (Ext. Ka-7) and other necessary papers. The investigation of the case was started by P.W.14 S.I. S.A. Zaidi, who inspected the spot and prepared memo regarding taking into possession of the scooter (Ext. Ka-14), memo regarding taking into possession of a hand bag (Ext. Ka-15) and site plan (Ext. Ka-17). After interrogating the witnesses and on completion of investigation successor Investigation Officer S.O. Brijendra Singh filed charge sheet (Ext. Ka-19) against the four accused for their trial in respect of offences punishable u/s 307 / 302 / 120-B of I.P.C.

The Magistrate, on receipt of the charge sheet after giving necessary copies to the accused, as required u/s 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned III Addl. Sessions Judge, Nainital, after hearing the parties, on 22.08.1996, framed charge of offences punishable u/s 302 read with Section 34 of I.P.C. against the four accused. All of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Harendra Singh Dhillon (informant and eyewitness); P.W.2 Rupendra Singh Bagga (another eyewitness); P.W.3 Dr. P.K. Dixit (who recorded the injuries on the person of the injured and was present during recording of dying declaration); P.W.4 Dr. J.K. Goel (who conducted the postmortem examination); P.W.5 Smt. Labi Chauhan (widow of the deceased); P.W.6 Shamim Ahmed Khan (Magistrate who recorded dying declaration); P.W.7 S.I. J.K. Gangwar; P.W.8 S.I. Pratap Singh; P.W.9 R.K. Srivastava; P.W.10 Narendra Verma (owner of gun shop); P.W.11 Kaluwa (declared hostile); P.W.12 Suresh Kumar; P.W.13 H.C. Bhagwan Singh (who recorded the FIR) and P.W.14 S.I. S.A. Zaidi (the Investigating Officer). On behalf of the defence D.W.1 Dr. R.K. Shroff, D.W.2 Dr. R.K. Singh and D.W.3 A.K. Gupta (Fingerprint Expert) were examined. A court witness C.W.1 R.A. Misra (Govt. Fingerprint Expert) was also examined. The oral and documentary evidence was put to the accused u/s 313 of Cr.P.C., in reply to which they alleged that false evidence has been adduced against them and they have been falsely implicated in the crime. The trial court found accused / appellant Arvind Kumar Visnoi guilty of charge of offence punishable u/s 302 of I.P.C. After hearing the parties on sentence, convict Arvind Kumar Visnoi was sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/-. However, the trial court acquitted co-accused Mahipal Singh, Sunil Kamboj alias Pappu and Brijesh Kumar from the charge of offence punishable u/s 302/34 of I.P.C. giving them benefit of doubt. Aggrieved by said judgment and order, present criminal appeal was filed by the convict Arvind Kumar Visnoi, whereas the State has filed the present Government appeal against acquittal of the three co-accused.

It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.4 Dr. J.K. Goel, who prepared autopsy report after postmortem examination on dead body of Kedar Singh Chauhan on 30.11.1992, at 04:45 P.M. The ante mortem injuries recorded in autopsy report (Ext. Ka-5) are being reproduced below:-

i) Gunshot wound of entry 1 cm x 0.5 cm on right side chest 6 cm from the nipple at 8 O'' clock position, blackening and tattooing present. Round form wound entry. Margins of wound inverted.

ii) Gunshot wound of entry 1 cm x 0.5 cm x cavity deep on postero lateral aspect of right side chest lower part just below lower margin right side of ribcage, margin and wound inverted, scorching and tattooing present. Round form of wound entry.

iii) Stitched wound 25 cm in length (vertical in position or right side abdomen).

iv) Stitched wound (horizontal) 16 cm in length on right side abdomen.

v) Stitched wound 14 cm in length (horizontal) on right side of chest.

vi) Stitched wound 3.5 cm in length on left side of abdomen.

The Medical Officer (P.W.4 Dr. J.K. Goel) has opined in the autopsy report that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries.

So far as the First Information Report is concerned, the same was lodged within 10 minutes of the incident. The distance between the police station and the place of occurrence is only one furlong. The injuries on the person of Kedar Singh Chauhan were also got examined without delay. The dying declaration has also been recorded on that vary day. Post mortem report corroborates the injuries mentioned in the medical report and both of these documents support First Information Report inasmuch as the gun shots were fired at Kedar Singh on 29.11.1992 at 6:00 p.m. The Inquest Report also shows that the victim has died due to firearm injuries. The doctor, who conducted post mortem examination has also stated that the cause of death of Kedar Singh Chauhan was shock and excessive haemorrhage.

The dying declaration (Exhibit A-6) was recorded by P.W.6 Shri Shamim Ahmad Khan, Sub Divisional Magistrate on 20.11.1992. Let us examine the dying declaration of Kedar Singh, aged about 38 years, son of Shri Mahi Ram, resident of Jaspur, district Nainital. The doctor has certified that the patient is fully conscious and well oriented and he is in a position to give statement. This certificate was given by P.W.3 Dr. P.K. Dixit, Cardiologist of L.D. Bhatt Hospital, Kashipur.

Kedar Singh Chauhan''s condition was critical. He was not controlling the day, for the same was not in his hands and therefore, his dying declaration was recorded thus:

The Magistrate asked, "How did this incident take place?

Reply was- Arvind Kumar Vishnoi S/O Udai Raj Singh Vishnoi fired (at him) twice with his 12 bore gun. He was accompanied by Sri Mahipal Singh S/O Battu Singh and Sunil Kumar Kamboj & Brijesh Kumar, both sons of Jaswant Singh Kamboj. He had an old enmity with them. They had decamped a cash of Rs. 20,000/- from him. This incident has taken place on the road near Singhal Nursing Home, Jaspur. They had committed marpeet and had also threatened (him) with dire consequences. The police was informed (about the same) earlier.

This dying declaration was endorsed with further certificate of Dr. P.K. Dixit that during the whole statement, the patient was fully conscious. This dying declaration (Exhibit Ka-6) appears to be a true statement of its maker. It makes clear that accused Arvind Kumar Vishnoi had intentionally fired at him which caused his death. Whether injured Kedar Singh was in a position to make any dying declaration as such was certified by Dr. P.K. Dixit that the injured was fully conscious and thereby was in a position to give his statement. Shri Shamim Ahmad Khan, S.D.M. as well as Dr.Dixit have no enmity with Arvind Kumar Vishnoi or any of his associates. It therefore, suffers from no infirmity.

Great emphasis was laid by learned counsel for the appellant on the fact that the time of recording the dying declaration is not mentioned in it. The signatures of the injured have also not been obtained. The argument so advanced on behalf of the appellant is not of much help inasmuch as the Magistrate, who recorded the statement obtained thumb impression of Kedar Singh on the same. So far as non-mentioning of time is concerned, P.W.6 Shri Shamim Ahmad Khan has stated that he could not record the same by mistake. P.W.3 Dr. P.K. Dixit thought that it was not necessary for him to mention the time in his endorsement. The said dying declaration (Exhibit Ka-6) is strong corroborative piece of evidence as the same was recorded by a Magistrate and the doctor has duly certified his state of consciousness.

We have considered the veracity of the dying declaration recorded by PW6 Shamim Khan, Sub Divisional Magistrate, Kashipur in the presence of Dr. P.K. Dixit, Cardiologist, who has certified the consciousness of injured at the time of making of the statement. We have satisfied ourselves regarding the correctness of the dying declaration and, accordingly, hold that dying declaration is not tutored; it is voluntary.

The dying declaration recorded in this case inspires full confidence in its trustworthiness and correctness. It has intrinsic worth and its reliability can be determined from its tenor and contents. There are no material contradictions in the statements of prosecution witnesses. The dying declaration recorded in this case is free from doubt, reliable one and if the conviction is based on this dying declaration it will meet the ends of justice. There are no embellishments. What is more important is that a Sub Divisional Magistrate has recorded the dying declaration against one of his colleagues. Learned Sub Divisional Magistrate has recorded the dying declaration in the language of the victim himself. He has not implied his own language so as to suggest that it is tutored one. The document appears to be correct and unalloyed version of the deceased. It is not a fabricated or distorted document. It passes the test of total reliability. The necessary details, minute and material, are found therein. Kedar Singh Chauhan was in a fit state to give the statement according to the Doctor. The Sub Divisional Magistrate has taken the opinion of the Doctor as to his fitness. Possibility of anxiety of planting the accused persons it totally ruled out. Taking an over-all perspective of the evidence, it is a case in which the veracity of prosecution witnesses and dying declaration cannot be doubted. It is free from mysteries, conjectures and surmises. The dying declaration inspires full confidence to the court in its truthfulness and correctness. Dying declaration is the last statement by its maker and great caution is exercised in considering the weight to be given to this species of evidence. On the basis of the oral testimony of prosecution witnesses coupled with the dying declaration recorded by an independent Sub Divisional Magistrate, it transpires that dying declaration is not the result of tutoring and is free and voluntary one. Neither the Doctor nor the Sub Divisional Magistrate were interested in the outcome of the case. Declaration showed the clarity of mind of the maker and there is no reason to doubt the certificate issued by a qualified Doctor. It is found to be absolutely coherent, cogent and inspiring evidence. There is nothing to discredit or disbelieve the said dying declaration. Before recoding the dying declaration learned Sub Divisional Magistrate had obtained Doctor''s opinion about the condition of the patient, who had declared the victim fit for making the statement and hence it is a reliable piece of evidence. We are in complete agreement with the findings recorded by the trial court so far as it relates to the accused /non-respondent Arvind Singh Vishnoi.

Prosecution has examined two eye witnesses viz., PW1 Harendra Singh Dhillon and PW2 Rupendra Singh Bagga. The former has stated that he had gone to the house of Kedar Singh Chauhan on 29.12.1992. On his way back to home, he was taken by the said Kedar Singh to drop him at Bus Station Jaspur in his scooter. At about 6 p.m. accused persons came in a red coloured Maruti Car and stopped the scooter. This occurrence took place near Singhal Nursing Home. Accused appellant Arvind Kumar Vishnoi and accused Sunil Kumar Kamboj were armed with 12 bore gun. Accused Mahipal and Brijesh Kumar were armed with country made pistols. They got down from the Car and fired at Kedar Singh Chauhan. On hearing the sound of fire, P.W. 2 Ruprendra Singh Bagga and a few more people came on the spot. Accused persons fled away from the scene. PW1 Harendra Singh Dhillon knew all the four accused persons as he had seen these persons with deceased Kedar Singh before this incident. PW1 Harendar Singh Dhillon has also said that he took injured Kedar Singh to Police Station Jaspur and lodged the FIR (Exhibit Ka-1). Lamp post was there near the place of occurrence.

PW2 Rupendra Singh Bagga has corroborated the statement of PW1 Harendra Singh. He said that he was going to the side of Bus Station and when he reached near Singhal Nursing Home, a red coloured Maruti Car stopped the scooter, which was being driven by Kedar Singh Chauhan. Harendra Singh Dhillon was pillion rider. Four persons, viz., accused Arvind Kumar Vishnoi, who was armed with gun. Accused Sunil Kamboj, who too armed with gun, accused Mahipal and Brijesh Kumar, who were armed with pistols got down from the Maruti Car. Immediately appellant Arvind Kumar Vishnoi fired at Kedar Singh Chauhan, who fell down. PW1 Harendra Singh Dhillon and PW2 Rupendra Singh Bagga took Kedar Singh to the Police Station promptly. The accused persons fled away from the scene.

FIR appears to have been lodged immediately and if there is some confusion regarding delay in lodging the FIR, the same has been dispelled by the learned trial court at Para 23 Page 11 of the judgment. We are inclined to agree with the view expressed by learned Sessions Judge, Nainital that there is no delay in lodging the FIR. Learned trial court has also referred to rulings of Ananta Mohanta Vs. State of Orissa, and State of U.P. vs. Anil Singh, 1989 SCC (Cri) Page 48 to repel the arguments of learned counsel for the accused that it was Sub Inspector S.A. Zaidi, who has taken the injured to Hospital. Such an irregularity, if any, to our mind does not materially affect the truthfulness of the prosecution story.

The statements of eye witnesses in this case get corroboration from the dying declaration (Exhibit Ka-6) supporting the prosecution story that appellant Arvind Kumar Vishnoi fired at Kedar Singh Chauhan (since deceased) and other accused persons Mahipal, Brijesh and Sushil Kamboj were also present with him. That the victim sustained gun shot injuries gets corroboration from the medical report (Exhibit Ka-2). The ocular testimony of these two eye witnesses coupled with the corroboration from dying declaration (Ext. Ka-6) goes on to prove that appellant Arvind Kumar Vishnoi fired twice at Kedar Singh Chauhan, who succumbed to the injuries next day as is evident from the post mortem report (Ext. A-5).

These two eyewitnesses cannot be termed as chance witnesses. PW1 Harendra Singh Dhillon is the pillion rider and he is the most natural witness. Had he not deposed, the prosecution story would have been assailed on the ground that the pillion rider has not been examined. Similarly PW2 Rupendra Singh Bagga also cannot be termed as a chance witness. Where the occurrence has taken place on way to Bus Station in an open road, whosoever is travelling on the road or standing thereby or waiting for the bus is a natural witness and not a chance witness. It has been observed by the Hon''ble Supreme Court in State of U.P. vs. Roop Singh, 1995 SCC (Cri) 403 that where there is a prompt FIR and witness is able to show cogent reasons for his presence near the scene of occurrence, his testimony cannot be disbelieved.

It was contended on behalf of the appellant Arvind Kumar Vishnoi that the injured was shot at by some unknown person, was removed from the spot in injured condition by the Police and was taken to the Jaspur Hospital. Subsequently, a twist was given to the real story by introducing two so called eye witnesses.

We are not inclined to agree with the contention of the learned counsel for the appellant in view of the eyewitness account of two witnesses duly supported by the medical evidence and the dying declaration. The learned counsel for the appellant also referred to the lapses in the investigation. They are dismissed summarily in view of the pronouncement of the Hon''ble Supreme Court that the prosecution cannot be faulted for insignificant wrongs and omissions of the investigating officer.

It was also argued on behalf of the appellant that the dying declaration is doubtful. We have given a careful thought to the arguments so advanced on behalf of the appellant. We are of the view that the dying declaration so recorded by the Sub Divisional Magistrate inspires confidence. The thumb impression on the dying declaration was sent to the Government expert for examination, whose report cannot be doubted for the reasons enumerated in the report.

It was further argued on behalf of the appellant that the dying declaration was recorded by the Magistrate who was not informed by the Police and the Sub Divisional Magistrate came only on the information given by a local MLA and one Dinesh Kumar Sharma, who has got business rivalry with the father of the appellant. One thing is certain that the Magistrate had come to record the dying declaration of the victim. Whether he came at the instance of Police or at the instance of local MLA, that makes no difference. The fact remains that he came and recorded the dying declaration in the presence of Doctor.

The rulings cited by the learned counsel for the appellant in this behalf have no bearing on the facts of the case and hence do not help the appellant in any way. They are -State (Delhi Admn.) vs. Laxman Kumar 1986 Cr.LJ page 156; State of U.P. Vs. Madan Mohan and Others, ; State of U.P. vs. Shishupal Singh 1994 SC 129; Ashok Kumar vs. State of Bihar 1999 Cr. L.J. 599 SC; Shaikh Rafiq and Another Vs. State of Maharashtra, , for the sake of record.

Yet another argument advanced on behalf of the appellant is that the prosecution witnesses are the procured witnesses who have been planted to falsely implicate the appellant. We are of the view on the basis of facts brought on record that although the witnesses were not the residents of the locality but the fact remains that they are natural witnesses and not chance witnesses.

The last but not least, whether a person of the stature and status of the appellant being P.C.S Officer can commit such a crime? In view of the evidence rendered on behalf of the prosecution, it is abundantly clear and that is why more agonising that a person of status has committed the crime in the broad day light which adds to the gravity of the offence. Law- protector has turned into a law-breaker. It may be noted here right now that the officer who has recorded the dying declaration of the victim is also a PCS officer of almost the same rank. Why should his evidence be not believed ? The incident took place within 100 paces away from the police station. The injured was brought to police station first and then to hospital. It is impossible to plant such a person in the circumstances. There was hardly any time with the informant to plant anybody. The evidence thus produced on behalf of prosecution is worth believing.

The appellant accused had a motive to kill Kedar Singh Chauhan. It has been held by the Hon''ble Supreme Court in so many cases that where there is a direct evidence, the question of motive fades into oblivion. Where direct evidence of commission of crime is there, the motive of crime loses its importance. In the instant case, appellant Arvind Kumar Vishnoi had fired at Kedar Singh Chauhan, which resulted in his death. PW5 Smt. Lavi Chauhan has stated that in April, 1992, the accused persons attempted to kill her husband. There was some dispute between the parties regarding payment of money. So on the basis of the evidence on record, we are of the view that the prosecution has been able to prove its case against appellant accused Arvind Kumar Vishnoi beyond reasonable doubt.

There is no infirmity in the judgment and order recorded by the learned trial court to this extent. We see no reason to interfere in this part of the judgment. The appeal preferred by the appellant therefore, fails.

***

In the above discussion, we have gathered that we are not inclined to interfere in the judgment of the learned trial court so far as it relates to conviction of the appellant Arvind Kumar Vishnoi. The State has filed the Government Appeal against the acquittal of Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar. Let us revisit the prosecution evidence in the context, for, the same will facilitate appreciation of evidence thus rendered by the prosecution in a better way so far as the case of respondents (those who have been acquitted by the trial court) are concerned. Although this part of the judgment is supplementary to the fist part of the judgment but is specific to the case of the respondents. There may be some unavoidable overlappings. Since the incident is one therefore there is interdependence of one part on another. Both are intrinsically connected with each other.

But before that, we consider it to be our bounden duty to cite the reasons for acquittal of the accused respondents Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar by the learned trial court. In para 25 of the judgment learned Sessions Judge, Nainital has mentioned that charge u/s 302 read with section 34 IPC has been framed against all the accused persons. According to the judgment of the trial court, while two gun shot injuries are proved to have been caused by Arvind Kumar Vishnoi, for bringing home charge of section 302 IPC read with section 34 IPC against the others, the factum of common meeting of mind and common intention was essential to have been proved, which has not been done. In the present case, according to the learned Sessions Judge, it is certainly true that accused persons Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar had come in a Maruti Car with accused Arvind Kumar Vishnoi on 29.11.1992 on the spot but there is no sufficient evidence to show the common intention of all to intentionally cause the death of Kedar Singh Chauhan. PW 1 Harendra Singh and PW 2 Rupendra Singh Bagga did show that other accused also fired but this part of oral testimony does not get corroboration from the dying declaration Ext. A-6. In the circumstances, the factum of common intention to commit murder on the part of accused Sunil Kamboj alias Pappu, Brijesh Kumar and Mahipal Singh cannot be said to have been proved beyond reasonable doubt as such they deserve the benefit of doubt, the learned Sessions Judge concluded.

Learned AGA arguing for the State has submitted that it was wrongly observed by the learned trial court that there is no sufficient evidence to show the common intention of all to intentionally cause the death of Kedar Singh Chauhan. The intention to commit murder is fully proved beyond reasonable doubt as against the accused-respondents Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar. It is proved by the statement of the eyewitnesses that all accused respondents have fired by their weapons on deceased. The first fire was made by Arvind Kumar Vishnoi(non respondent) and after that accused-respondents have fired on the deceased. The evidence of prosecution witness has not been appreciated in correct perspective. Learned trial court has committed manifest error of law in holding that the prosecution has failed to prove its case beyond reasonable doubt. On the basis of material evidence available on record the order of acquittal is not justified in law and as such the same is liable to be set aside by the Hon''ble Court. We may recall the prosecution story here. On 29.11.1992, complainant Harender Singh Dhillon had gone for some work to victim Kedar Singh Chauhan and when he was returning with victim on the scooter at about 6 p.m. near Singhal Nursing Home a maruti car came through the opposite side and stopped near the scooter. All the four accused got down from the car and started firing at the victim Kedar Singh Chauhan who received fire injuries on his person. Meanwhile, on hue and cry, and due to the sound of fire Bhupender Singh Bagga and many others witnesses reached on the spot. Seeing them the accused persons ran away from the spot by their car. The accused-respondents were well known to Harender Singh Dhillon. The witnesses Harender Singh Dhillon and Bhupender Singh Bagga brought the victim to Police Station at about 6.10 pm on the same day and orally lodged the first information report against the accused persons about this incident. The injured /victim was rushed to L.D.Bhatt hospital, Kashipur who had received firearm injuries on his person. His dying declaration was recorded by Sub Divisional Magistrate, Kashipur on the same day. In the dying declaration the injured /victim had stated inter alia, that Arvind Kumar Vishnoi /non respondent fired on him by the 12 bore gun. The accused Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar were with him. He had previous enmity with the accused and they had threatened to kill him, regarding which he had also informed the police. The dying declaration was recorded in the presence of Doctor P.K.Dixit Cardiologist who verified and endorsed in dying declaration that the patient was fully conscious and was in a position to make the statement. The next day injured /victim died due to the injuries. When post mortem was performed on his body by Doctor J.K.Goel on 30.11.1992, the cause of death was shown to be shock and hemorrhage as a result of the ante mortem injuries.

The charge against the respondents / accused has been framed for the offence punishable u/s 302 read with section 34 IPC. It will be appropriate to reproduce section 34 IPC here :

Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

It has been held in Lallan Rai and Others Vs. State of Bihar, that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing from the scene cannot absolve the accused.

A clear distinction is made out between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. The facts of this case suggest that all the accused shared a common intention to kill the deceased.

It has been held in Suresh and another vs. State of UP, 2001 Supreme Court Cases (Crl) 601 as follows:

Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

It appears to us that in such a situation the offence of section 302 read with section 34 IPC appears to have been made out as against Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar. The common intention to commit the offence as against these respondents seems to have been proved. Even if the victim did not attribute in his dying declaration that the respondents did not fire at him but the fact remains that they were armed with weapons sharing common intention with Arvind Kumar Vishnoi (Accused-non respondent) who fired on the victim by a 12 bore gun. This declaration of the victim that only one person fired on him attaches more sanctity to the dying declaration towards its correctness, for he had an opportunity to exaggerate the incident. But he did not do so. Instead of saying that all the accused persons fired at him, he has simply stated that only Arvind Kumar Vishnoi fired on him with his 12 bore gun and others namely Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar were with him. He kept silent on the point that the others also fired on him. It shows the clarity of the mind of maker to indicate the correctness of the statement.

All the accused persons are named in the first information report. The first 3 names are those of respondents and 4th one is that of Arvind Kumar Vishnoi, A.S.D.M, Rudrapur, non respondent. The incident took place on 29.11.1992 at 6 p.m. and the first information report is lodged promptly, the same day, the same evening within an interval of 10 minutes. The distance between the place of occurrence and the police station is hardly a furlong. The first information report indicates that all the four persons have fired at Kedar Singh Chauhan with the intention to kill him. The dying declaration shows that only Arvind Kumar Vishnoi has fired on the victim, while others were with him. The evidence has it that all the accused persons came in a maruti car and fled away from the same maruti car after committing the crime. The medical officer who examined the victim found two gun shot wounds of entry. The dying declaration Ext. Ka-6 has endorsed the fact that the victim sustained two fire arm injuries. In the opening sentence of his reply the victim has said that it was Arvind Kumar Vishnoi who fired two bullets on him with his 12 bore gun. Arvind Kumar Vishnoi was accompanying by Mahipal Sing s/o Battu Singh, Sunil Kumar Kamboj alias Pappu and Brijesh Kumar, both sons of Jaswant Sing Kamboj. They robbed him of a cash of Rs. 20,000/-. The occurrence took place near Singhal Nursing Home, Jashpur. They had old enmity with him. Earlier they had committed mar-peet with him and they had threatened to kill him. Information to this effect was given to Police (earlier). They are responsible for the incident. All the accused persons were charged on 22.08.1996 for the offence punishable u/s 302 read with section 34 IPC. PW 1 Harender Singh Dhillon has said in his examination-in-chief that Arvind Kumar Vishnoi had a 12 bore double barrel gun in his hands, Sunil Kamboj alias Pappu had 12 bore gun, Mahipal Singh and Brijesh Kumar had country made pistols in their hands. Two bullets hit Kedar Singh Chauhan. This witness knew the culprits and saw them in the light of the lamp post. He lodged the first information report. The testimony of this witness shows the meeting of minds of the accused. That is inferred from the circumstances.

Let us concede for the sake of arguments for a moment that the testimony of this witness is in variation with the dying declaration, in as much as while the eye witness says that all the accused persons were armed with gun/country made pistol, the dying declaration simply shows that Arvind Kumar Vishnoi fired two bullets on him and other accused persons were present with him. It appears to us that there is no contradiction in the eyewitness account and dying declaration, in as much as the presence of the respondents on the spot is confirmed. The dying declaration is silent on the fact whether the respondents too were armed with some weapon or not. There is no variation, no contradiction in the eye witness account and the dying declaration. PW 2 Rupendra Singh Bagga has fully corroborated the eyewitness account of PW 1 Harendra Singh Dhillon who is eyewitness as well as the lodger of the first information report. Presence of the accused respondents on the spot is not at all doubtful. It is not a case of sudden and grave provocation whereby it could be inferred that there was no prior meeting of minds and the assailant Arvind Kumar Vishnoi fired at the victim in a spur of moment. The eye witness account is substantially corroborated by the deceased in his dying declaration. The presence of accused-respondents is confirmed on the scene of occurrence while the ocular testimony is in favour of the respondents being armed with weapons, the dying declaration is silent on the point. Thus there is no contradiction between the ocular testimony and the dying declaration. Remaining silent on the fact that the respondents were armed with weapons does not mean that there is contradiction between the testimony of eye witnesses and dying declaration, which is corroborative piece of evidence. The eye witnesses who were present on the spot have attributed the overt act on the part of the respondents as well. Thus the respondents owe joint and constrictive liability for the crime.

PW 3 Doctor P.K.Dixit (Medical Officer P.H.C.) has supported the prosecution version and has said that the dying declaration of the victim was recorded by Sub Divisional Magistrate in his presence. PW 4 Doctor J.K.Goel has also supported the prosecution version. PW 5 Smt. Lavi Chauhan who is the wife of the deceased has said that her husband and accused Arvind Kumar Vishnoi, ASDM, Rudrapur were business partners. Her husband was a contractor and had dispute with the accused persons over business. She was put to a very lengthy cross-examination but nothing substantial has come out in favour of the accused persons. The most important witness, apart from the eyewitness and Doctors in this case, is the evidence of PW 6 Shamim Ahmad Khan, City Magistrate, Farukkhabad who was posted as SDM, Kashipur on 29.11.1992. Shri Shamim Ahmad Khan, S.D.M had recorded the dying declaration (Ext. Ka-3) of the victim in the presence of Doctor P.K.Dixit at L.D.Bhatt Hospital, Kashipur. PW 7 Sub Inspector J.K.Gangwar, P.S. Sasarpur, District Meerut had conducted the investigation of the another case crime no. 158 of 1990 when he was posted at Chowki Nadehi, Police Station Jaspur. PW 8 Pratap Singh, Sub Inspector is a witness of Panchayatnama etc. PW 9 R.K.Srivastava, Superintendent of Police at the headquarter of U.P. -Nepal border, Lucknow has deposed that there is no entry in the register to suggest that the DBBL gun of Arvind Kumar Vishnoi, the then A.S.D.M was deposited on 26.11.1992. P.W.10 Narender Verma is the owner of Tarai Gun House. PW 11 Kalua denied knowing Kedar Singh Chauhan. He had said that he had lodged a first information report against Prem Singh and anothers in relation to a land. PW 12 Suresh Kumar is a signatory to Ext. Ka-14 and Ext. Ka-15 which relate to the recovery of scooter, currency note and a bag. PW 13 head constable Bhagwan Singh is a formal witness who has proved chik first information report Ext. Ka -1 and copy of G.D. Ext. Ka-16. PW 14 SI S.A.Zaidi is the Investigating Officer who has conducted the investigation in part upto 09.12.1992 and thereafter Inspector Brijender Singh had submitted the charge-sheet Ext. Ka-19 against the accused persons. Inspector Brijender Singh has died.

C.W. 1 R.A.Mishra, Government Finger Print Expert has proved that the finger print impressions on the documents referred to him by the court belong to Kedar Singh Chauhan.

D.W. 1 Doctor R.K. Saraf, C.H.C., Jaspur has proved that there is an entry at page no. 54 dated 29.11.1992 to show that Kedar Singh was referred to L.D.Bhatt Hospital. DW 2 Doctor R.K.Singh has deposed that the victim was brought to combind hospital, Jashpur on 29.11.1992 at 6:30 p.m and looking into the critical condition of the victim he was referred to L.D.Bhatt Hospital. D.W. 3 A.K.Gupta, Finger Print and Handwriting Expert has opined that the thumb impressions on the documents referred to him belong to different persons. The evidence of Government finger print expert in this case is capable of outweighing the evidence tendered by a private finger print expert, as is explicit from the contents of their cross examination. So far as the question of the victim being taken to C.H.C., Jaspur first and then being referred to L.D.Bhatt Hospital is concerned, it makes no material difference whether the victim was brought to L.D.Bhatt Hospital directly or through C.H.C. Jaspur. The evidence thus tendered on behalf of the accused persons is not capable of creating suspicion in the prosecution story.

A combined reading of the dying declaration and statement of eyewitnesses duly supported by the medical evidence is sufficient to suggest that the respondents had shared the common intention with the non-respondent in broad day light gruesome murder of Kedar Singh Chauhan. Prosecution was not supposed to prove that any meeting sharing common intention was held in an air conditioned room by the respondents. Res ipsa loquitor. Facts and circumstances speak for themselves.

Dying declaration is not the one and only piece of evidence here. It is only a corroborative piece of evidence and not substantive one and therefore, we have considered the case in its entirety. We have scrutinized the evidence of two public witnesses. We have believed them and only therefore, the question of corroboration by dying declaration arose. We have not relied solely on the basis of dying declaration but have considered the eye witness account of the witnesses. Many onlookers gather on the scene but they disappear like thin air. Veracity of the eyewitness account is to be tested on material things. Small contradictions may come here and there. If the court believes the eyewitness account of prosecution witnesses then there is no reason not to accept section 34 IPC in the facts of the case. If the court does not believe eyewitness account then section 34 IPC also goes away.

Thus we come to the conclusion that the prosecution has been able to prove the case against all the accused persons beyond reasonable doubt. Whereas the charge u/s 302 IPC stands proved against the accused appellant Arvind Kumar Vishnoi, the charge u/s 302 read with section 34 IPC also stands proved against the respondents namely, Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar. Whereas the appeal of convict Arvind Kumar Vishnoi fails, the Government Appeal preferred by the State against the respondents, viz., Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar succeeds. We are of the considered opinion that the respondents are liable to be awarded the same sentence, as has been awarded to the convict Arvind Kumar Vishnoi i.e. the sentence of life imprisonment and fine of Rs. 10,000/- to each respondents. In case of non-payment of fine, each one shall be required to further undergo two years'' rigorous imprisonment. There are only two sentences possible in case of murder. It does not fall within the category of ''rarest of rare'' case and therefore the accused- respondents deserve a lenient sentence prescribed, which is imprisonment for life, along with fine.

The appeal preferred by the appellant Arvind Kumar Vishnoi being Criminal Appeal No. 12 of 2002 Arvind Kumar Vishnoi vs State is therefore, dismissed. The conviction and sentence recorded by the trial court against the accused-appellant Arvind Kumar Vishnoi in respect of offence punishable u/s 302 is hereby affirmed. Accused is on bail. His bail bonds are cancelled and sureties are discharged. Accused Arvind Kumar Vishnoi is directed to surrender before the court concerned to serve out remaining part of sentence awarded to him by the learned trial court.

Government Appeal no. 356 /2008 preferred by the State of Uttarakhand against the accused-respondents Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar succeeds and is accordingly, allowed. The accused-respondents are held guilty for the offence punishable u/s 302 IPC read with section 34 IPC. The order of acquittal recorded by the learned trial court in respect of said accused-respondents viz., Sunil Kamboj alias Pappu, Mahipal Singh and Brijesh Kumar for the offence punishable u/s 302 read with section 34 IPC is set aside. The said accused-respondents are directed to surrender before the court concerned to serve out the sentence hereby awarded to them by this Court, i.e., imprisonment for life to each and fine of Rs. 10,000/- each. In case of default, each one shall further undergo two years'' rigorous imprisonment.

Let the lower court record be sent back to the court concerned along with a copy of this judgment for ensuring compliance of these orders.