JUDGMENT 1. - In a trial under section 302 Indian Penal Code and Section 27 of the Arms Act conducted by the learned Sessions Judge, Sri Ganganagar, appellant Nand Singh was convicted and by the judgment dated May 3, 1977 sentenced to imprisonment for life and a fine of Rs. 500/-, in default to undergo two months rigorous imprisonment for the first count and three years rigorous imprisonment for the second count. The substantive sentences for the two offences were ordered to run concurrently. 2. Being aggrieved by his conviction and sentence appellant Nand Singh has preferred this appeal. The State of Rajasthan felt dissatisfied with the imposition of the lesser penalty of imprisonment for life for the offence under section 302 Indian Penal Code and therefore, preferred appeal under section 377 of the Criminal Procedure Code for enhancement of sentence. 3. As the two appeals arise out of the same judgment, we propose to dispose them of by a single judgment. 4. Briefly stated the facts of the case giving rise to these appeals are that on January 21, 1976 camp of the Tehsildar was fixed at village Dudamod in connection with allotment of land. Deceased Kesar Das Advocate was Oath Commissioner for Tehsil Padampur and, therefore he, on January 20, 1976 went to village Dudamod along with Roshan Lal Advoeate, Govind Lal and Satish Kumar Petition-Writers and Uma Shanker. They were staying in the baithak (Drawing Room) of Mai Singh at village Dudamond." At about 5.30 p.m. Phagan Singh (P.W. 3) went there and invited them to dinner at his house. At about 6 30 p.m. Phagan Singh again went there and Kesar Das deceased and Govind Lal Petition-Writer (P.W. 1) accompanied him to his house for dinner. Phagan Singh (P.W. 3) made them sit in his baithak and himself went inside to take his food. Budh Singh (P.W. 2)-son of Phagan Singh (P.W. 3) served the meals to deceased Kesar Das and Govind Lal (P.W. 1). Kesar Das was silting on a cot with his face towards the north while taking food and the plate of food was on a table lying in front of him. Govind Lal (P.W. 1) was sitting on a cot which was in front of on which Kesar Das was sitting and his plate of food was on the same cot. Kesar Das was silting on a cot with his face towards the north while taking food and the plate of food was on a table lying in front of him. Govind Lal (P.W. 1) was sitting on a cot which was in front of on which Kesar Das was sitting and his plate of food was on the same cot. While these people were still busy in taking food Khan Chand (P.W. 5) got the door on the western side of the room opened through Budh Singh (P.W. 2) and entered the room and a talk with Kesar Das in connection with the verification of an affidavit. Kesar Das asked Khan Chand (P.W. 5) to wait till he would finish the Meals. Khan Chand (P.W 5) went inside the house where Phagan Singh (P.W. 3) was taking food. A little while thereafter, Nand Singh appellant reached there and standing just out of the door in the southern wall of the room which was left open after Khan Chand (P.W. 5) had come inside uttered the words "Kesar Das sambhalja". Immediately after saying so, he fired a shot from the gun which hit Kesar Das on the right shoulder. The bullet travelled obliquely from right side to the left side and its pieces hit the chair lying in front of the cot on which the deceased was silting. Kesar Das immediately fell down. Govind Lal (PW 1) being attracted by the words uttered by Nand Singh saw towards that direction. Budh Singh (PW 2) also reached near the table on which the plate of the deceased was, just when the bullent was fired and he is said to have seen the assailant while the letter took a turn to leave that place. Gavind Lal (PW 1) and Budh Singh (PW 2) caught hold of the injured Kesar Das. Meanwhile Phagan Singh (PW 3), Satish Kumar and Khan Chand (PW 5) also reached inside the room from inside the house. Kapoor Singh (PW 4) who was passing in the lane outside the house also reached there and on these persons reaching there, Govind Lal (PW 1), Budh Singh (PW 2) and simultaneously) the injured also told them that Nandsingh had fired the shot injuring him. Kesar Das was taken in a tractor of Phagan Singh (PW 3) to the hospital. Phagan Singh (PW 3). Kesar Das was taken in a tractor of Phagan Singh (PW 3) to the hospital. Phagan Singh (PW 3). Govind Lal (PW 1), Kapoor Singh (PW 4) ane Khan Chand (PW 5) accompanied him. In the way Kundan Lal, uncle-in-law of Kesar Das met them and he took the injured in the jeep to Padampur dispensary, Dr. Brij Mohan Choudhary (PW 11) Medical Officer at Government Dispensary, Padampur informed the police through Ex. P. 8 about the injured of a medico legal case being brought to the hospital. Dr. Choudhary (PW 11) examined Kesar Das and noted following two injuries on his pensions. 1. Oval lacerated wound, wound of entrance postero anterior upward direction. No burning no tatooing, of size 1/2" x ⅓" upto wound of exit, just medial to the medial border of left scapula 1" below the scapula. 2. Lacerated wound of exit with muscles bulging out of the size of the wound 3" x 21/4" upto the wound of entrance just above the middle one third of the left clavicle bone. He prepared the injury report Ex. P. 29. 5. On receiving (Ex. P. 8) at about 10.00 p.m. Abdul Gani Khan (P.W. 6), the Station House Officer, Police Station, Padampur went to the hospital and presented the tehrir Ex. P. 9 to the Doctor to certify whether the injured was fit to give statement. The doctor though reported the condition to be serious, yet certified him fit to give statement. Abdul Gani Khan (P.W. 6), thereafter recorded the statement of injured Kesar Das which is Ex. P. 10. As the case was of the jurisdiction of Police Station, Gajsinghpur, the Station House Officer, Abdul Gani Khan (P.W.6) sent Ex. P. 10, statement of the injured to Police Station, Gajsinghpur with constable Alimuddin. Abdul Gani Khan (P W.6) sent a requisition to the Tehsildar, Padampur for recording dying declaration of Kesar Das. The dying declaration recorded by the Tehsildar is Ex.P. 11. 6. Constable Alimuddin reached Police Station Gajsinghpur at about 3.00 a.m. on January 21, 1976 and handed-over Ex.P.10 to Jai Bhagwan (P.W. 10), the Station House Officer of that Police Station. On the basis of that statement first information report Ex. P. 14 was recorded. The Station House Officer, Jai Bhagwan (P.W.9) left for the site and reached village Dudamod at the house of Phagan Singh (P.W.3) in the early morning. On the basis of that statement first information report Ex. P. 14 was recorded. The Station House Officer, Jai Bhagwan (P.W.9) left for the site and reached village Dudamod at the house of Phagan Singh (P.W.3) in the early morning. He, at the instance of Phagan Singh (P.W.3), inspected the site and prepared the site inspection plan Ex.P.l and site inspection memo Ex.P.l A. The SHO took the blood from the floor and sealed it. He also took in possession the table cloth and the utensils which had blood stains on them. The pieces of the wood of the chair broken on account of the bullet shot and a pen lying in between the cot and the table were also taken in possession. Twelve pieces of the bullet found at the site were also t; k n in possession. Phagan Singh (P.W. 3) produced the coat Ex.7 of the Kesar Das before the Station House Officer. As it had mark of gun shot, it was taken in possession. All the articles taken in possession by the Station House Office were sealed then and there. On the same day Nand Singh appellant was arrested vide memo Ex.P. 7. After his arrest Nand Singh furnished information to the Station House Officer for getting hit licenced 315 bore recovered from the wooden almirah in his house. The information reduced into writing is Ex. P.15. In pursuance of that information rifle Ex. 8 and one empty cartridge Ex.9 found in it were taken in possession vide memo Ex.P. 16 and were sealed. On January 23, 1976 Santokh Singh produced the licence of that rifle and one live cartridge which were taken in possession vide memo Ex. P. 17. On January 25, 1976 Kundan Lal produced clothes of Kesar Das which were having marks of gun shot injuries and stains of blood and the Station House Officer took them in possession and sealed. 7. After completion of necessary investigation, charge sheet against the appellant was filed in the court of Munsif and Judicial Magistrate, Rai Singhnagar. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions, committed the appellant to the Court of Sessions Judge, Sri Ganganagar to stand his trial. 8. The learned Sessions Judge charge sheeted the appellant for the aforesaid offences and recorded his plea. The appellant denied the charges and claimed to be tried. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions, committed the appellant to the Court of Sessions Judge, Sri Ganganagar to stand his trial. 8. The learned Sessions Judge charge sheeted the appellant for the aforesaid offences and recorded his plea. The appellant denied the charges and claimed to be tried. To substantiate its case prosecution examined 15 witnesses in all. The appellant in his statement under section 313 of the Code of the Criminal Procedure totally denied the allegations levelled against him and stated that Badh Singh, Phagan Singh, Kapoor Singh and Mai Singh were inimical to him on account of water dispute and, therefore, have deposed against him. He also stated that Kesar Das was his counsel in the ceiling matter but he had no grievance against him. He admitted that the rifle record-belonged to him and he had a licence for it but stated that he gave it on demand and no information was furnished by him. The Station House Officer, Abdul Gani Khan (P.W. 6) was examined as D.W. 1. The learned Sessions Judge placed reliance on the prosecution witnesses and the dying declarations and passed the judgment under appeal. 9. We heard Mr. M.R. Bhansali, learned counsel for the appellant Nand Singh and Mr. H.N. Calla, learned Public Prosecutor for the State of Rajasthan assisted by Mr. B.R. Purohit and Mr. D.K. Purohit learned counsel for the complainant and gave our anxious consideration to the material on record. 10. The prosecution has led direct as well as circumstantial evidence to establish the guilt against the appellant Nand Singh. Reliance has been placed on the oral and the three written dying declarations Ex. P. 10, Ex. 11 and Ex. P. 13 of Kesar Das. Direct evidence is of Govind Lal (P.W. 1) and Budh Singh (PW 2). Phagan Singh (PW 3). Kapoor Singh (PW 4) and Khan Chand (P.W. 5) have been examined as the supporting evidence to the oral dying declaration and the circumstance of the incident having taken place in the room belonging to Phagan Singh (P.W.3) and the deceased and Govind Lal (P.W. 1) and Budh Singh (P.W. 2) being there at the relevant time. Besides that, evidence has also been led regarding the motive for the commission of the crime. Munni Lal Garg (P.W. 12) has been examined for that purpose. 11. Mr. Besides that, evidence has also been led regarding the motive for the commission of the crime. Munni Lal Garg (P.W. 12) has been examined for that purpose. 11. Mr. Bhansali, learned counsel for the appellant assailed the findings of the learned Sessions Judge on a number of grounds. According to him the three written dying declarations cannot be said to be true and voluntary. While levelling criticism against the truthfulness of the dying declarations as well as presence and the possibility of the alleged eye witnesses Govindlal (PW 1) and Budhsingh (PW 2) to identify the assailant, the learned counsel has contended that there was no sufficient light in the room. 12. The testimony in the form of dying declaration being most important factor in the case, we carefully examined the testimony about the oral as well as the three written dying declarations in order to arrive at a conclusion, whether they can be implicitly relied upon so as to fasten the guilt on the accused beyond any reasonable doubt. 13. Taking (he oral dying declaration first, the evidence in this connection is that of Budh Singh (P.W. 2), Phagan Singh (P.W. 3) and Khan Chand (P.W. 5). All these witnesses have deposed that just after the incident when Phagan Singh (P.W. 3), Khan Chand (P.W. 5) and Satish Kumar reached inside the room, Kesar Das told that he was shot by Nand Singh. The witnesses have stated that when Govind Lal (P.W. 1) and Budh Singh (P.W. 2) were telling this fact Kesar Das also simultaneously stated so. The learned trial Judge has declined to place implicit faith on this part of the prosecution case for the reason that these three witnesses have not narrated this fact in their police statement. Another reason for not placing reliance on this oral dying declaration is that when Govind Lal (P.W. 1) and Budh Singh (P.W. 2) the two alleged eye witnesses were already there and had told the fact to the persons immediately reaching there, where was the necessity for the injured to tell the name. So far as the second reason given by the learned trial Judge is concerned, we do not feel impressed because even when others might be telling the fact of incident, there could have been spontaneous utterance by the injured, if his physical condition so permitted. So far as the second reason given by the learned trial Judge is concerned, we do not feel impressed because even when others might be telling the fact of incident, there could have been spontaneous utterance by the injured, if his physical condition so permitted. But in view of the absence of this oral dying declaration in the police statements of the three witnesses, we also do not feel inclined to give any weight to this part of the prosecution case. 14. The written dying declaration Ex. P. 10 whose recorded by the Station House Officer, Abdul Gani Khan (P.W. 6) Padampur dispensary at 11.00 p.m. on January 20, 1976. It was on the basis of this statement that the first information report was recorded by the Station House Officer, Jai Bhagwan (P.W. 9) of Police Station, Gajsinghpur and the investigation proceeded. Ex. P. 10 contains the details about Kesar Das along with Govind Lal Petition Writer going to the house of Phagan Singh (P.W. 3) and taking dinner there. It also speaks about the appellant Nand Singh going there with the rifle and telling "Kesar Das sambhal ja" and then firing the shot, causing the injury to him. 15. Ex. P. II was recorded at 11:45 p.m. at the same dispensary by the Tehsildar Sukh Vir Singh (P.W. 7). Ex. P. 11 written by Sukh Vir Singh (P.W. 7) is a short statement and does not give the details. The contents are somewhat different from Ex. P. 10 which we would discuss at the relevant place. 16. Ex. P. 13 is the statement recorded by the Magistrate S.C. Goyal (P.W. 8) at 5.20 a m. on January 21, 1976 in the Male Surgical Ward of Shri Ganganagar hospital, where the injured was shifted from Padampur dispensary on the same night. This dying declaration is a detailed one and in material particulars similar to the contents of Ex. P. 10. 17. Mr. Bhansali has directed considerable criticism against all the three dying declarations raising a number of grounds to convince us that at the time of recording these dying declarations the injured was not in a fit mental and physical state so as to recollect and reproduce what had actually happened. 18. While dealing with Ex. P. 10, the main argument advanced by Mr. 18. While dealing with Ex. P. 10, the main argument advanced by Mr. Bhansali is that it being a statement recorded by the Police Officer cannot be said to be a true version of what the injured might have stated, because it does not bear the signatures of the doctor attending the injured, nor is there any mention about the condition of the injured therein. 19. The statement was recorded by Abdul Gani Khan (P.W. 6) immediately after his reaching the hospital. Prior to the recording of the talesmen, the Station House Officer had obtained a certificate from Dr. Brij Mohan Choudhary (P.W. 11) on thetehrir Ex P 9. This certificate about the fitness of the patient to give statement despite his condition being serious has been Proved by Dr. Brij Mohan Choudhary (P W. 11) in his deposition at the trial. The Station House Officer has stated about the presence of the doctor at the time of his recording the statement but the doctor does not recollect whether Abdul Gani Khan (P.W. 6) recorded the statement of Kesar Das in his presence. Kesar Das had died on January 26, 1976. From the statement of Dr. Satish Kumar (P.W. 15) on the basis of the various entries on the Bed Head Ticket exhibited by him relating to the condition of the injured from January 21, 1976 onwards till the date of his death, it is evident that the condition was improving up to January 23, 1976 and till that date, there was no sheck and the general condition was fair. This fact taken together with the certificate of Dr. Brij Mohan Choudhary (P.W. 11) on Ex. P. 9 and proved by him in his statement in the Court indicates that though the condition of Kesar Das was serious on account of the gun shot injuries he was able to give statement. 20. Mr. Bhansali has laid much emphasis on the fact that as the time Dr. Brij Mohan Choudhary (P.W. 11) had examined the injured his general condition was serious pulse was feeble and blood pressure was not recordable. The endorsement by the doctor on Ex. P. 9. regarding fitness of the injured to give statement clearly indicates that the general condition of the patient did not impair his capacity to give statement. Brij Mohan Choudhary (P.W. 11) had examined the injured his general condition was serious pulse was feeble and blood pressure was not recordable. The endorsement by the doctor on Ex. P. 9. regarding fitness of the injured to give statement clearly indicates that the general condition of the patient did not impair his capacity to give statement. The doctor has specifically deposed that he had certified though his condition was serious he was in a fit condition to give statement. 21. Coming to the question of the veracity of the dying declaration recorded by the police officer it is to be noted that it is not in all cases that the statement so recorded is to be discarded. What is required is a care full scrutiny, as to whether the statement suffers from any such infirmity which may give an indication that the police officer in his enthusiason for the fruition of the effort of investigation has not made an honest recording of what the injured might have stated. Ex. P. 10 purported to be the statement of the injured. It was in view of his condition that Abdul Gani Khan (P W. 6) took the precaution to obtain the certificate about the fitness of the injured to give the statement. It was at the time not recorded for the purpose of being used as the dying declaration, rather was intended to be a first information report. In such circumstance the absence of the signatures of the duty doctor on that statement will not be of any help to the defence. There is no dispute about the statement recorded by the police being used as substantive piece of evidence in case the injured person making the statement expires. It is this principal which is enunciated in State of U.P. v. Mod Lal and others, AIR 1968 Allahabad 83 wherein a report made by the deceased at the police station was considered to be dying declaration and though made before the police officer was held to be a substantive piece of evidence. 22. So far as the hones recording of the statement by the Station House Officer is concerned he has specifically deposed that he had written Ex. P. 10 exactly as injured had stated. 22. So far as the hones recording of the statement by the Station House Officer is concerned he has specifically deposed that he had written Ex. P. 10 exactly as injured had stated. In the case of Tehal Singh and others v. State of Punjab, AIR 1979 SC 1347 even when the statement recorded by the Head Constable was not the exact reproduction of what the injured stated and the version of the Head Constable was that he put questions to the deceased and recorded his answers and that he recorded what the deceased stated in his own way, their Lordships were pleased to hold that it does not mean that he recorded something other than what the deceased stated. All that it meant was that the language was his but the substance was that of the deceased. In such circumstances no infirmity could be attached to the dying declaration on that count. 23. Mr. Bhansali referred to the case of Balak Ram and another v. State of U.P., AIR 1974 SC 2165 wherein their Lordships did not consider it prudent to base a conviction on adding declaration made to Investigating Officer, particularly when it was not signed by declarant or the witnesses. The peculiar circumstances of the case which led to this opinion were that the Investigating Officer pressed by sergeant situation did not even fill up the page of the first information report, but still took the case diary with him on the off-chance that a dying declaration may be in the offing. Not only that, neither the signature or mark of the injured was taken at the foot of the dying deceleration nor signature of any body else was taken on it dispute a large number of persons being present in the car. Their Lordships took in view the non compliance by the Investigating Officer of R. 115 of the U.P. Police Regulation which expressly enjoins the Investigating Officer to record, if at all, in the presence of two respectable witnesses and after obtaining the signature or mark of the declarant at the foot of the declaration. It is pertinent to note that the case before us stands on a different footing. It is pertinent to note that the case before us stands on a different footing. The Station House Officer who recorded the statement has taken care to obtain a certificate from the concerned doctor about the fitness of the injured to give statement and has on oath stated that the statement was recorded in the presence of that doctor. The doctor has not specifically denied his presence at the time rather has stated that he d id not recollect whether the statement was recorded in his presence. Moreover the statement Ex. P. 10 bears the thumb impression of the deceased and Abdul Gani Khan (P.W. 6) has deposed that because of glucose drip in the left hand, he had taken the right hand thumb impression of Kesar Das on Ex. P. 10. This being the position, we do not find any infirmity so far as the recording of the statement by the Station House Officer is concerned. 24. The next point to be considered regarding this dying declaration is whether it is consistent with the subsequent dying declaration in material particulars. The story about Govind Lal (P.W. 1) and the injured going to the house of Phagan Singh (P.W. 3) and taking food there, Budh Singh (P.W. 2) serving the food to them, Nand Singh coming from the southern door and finding the shot hitting Kesar Das; Kesar Das falling down on account of the injuries sustained by him and Phagan Singh (P.W. 3) and Khan Chand (P.W. 5) etc. taking him in the tractor to hospital finds place in Ex. P. 10 as well as Ex. P. 113. The fact of Nand Singh telling Kesar Dassambhal ja" is, of course, there in Ex.P. 10 but is missing in Ex. P. 13. Before dealing with this difference between Ex. P. 10 and Ex. P. 13 and its effect on the case we will discuss Ex P. 11 to find out whether it corroborates the other dying declarations or not. In Ex. P 10 and Ex. P. 13 the contention is that Nand Singh came from the southern door and the victim fell down on sustaining the injuries. The version in Ex. P. 11 is that while the declarant was taking food, there was gun shot from the back side of the almirah. hitting him on the right shoulder. In Ex. P 10 and Ex. P. 13 the contention is that Nand Singh came from the southern door and the victim fell down on sustaining the injuries. The version in Ex. P. 11 is that while the declarant was taking food, there was gun shot from the back side of the almirah. hitting him on the right shoulder. That, just on sustaining the gun shot injuries lie at once stood up and saw Nand Singh with the gun in his hand standi g near the almirah, who thereafter ran away. 25. Drawing our attention to the discrepancies in. Ex. P. 11, Mr. Bhansali vehemently argued that the three dying declarations not being consistent, no reliance should be placed on any of them. 26. On the face of it, the argument appears to be plausible, because in order to make it the basis of conviction, the deposition of the injured should be consistent throughout, in case he had the occasion to narrate the facts more than once before his death, but at the same time in the given circumstances of a case if after close scrutiny with care and caution, court can come to the judicial conclusion that one or more of 'hem can be acted upon and the remaining can be discarded, then merely because of some inconsistency in one or more of them, all of them need not be disbelieved. 27. After giving our anxious consideration to Ex. P. 11 we are of I opinion that it is safe to rely on it as honest reproduction of the statement of the declarant and, therefore, this statement (Ex.P. 11) should not have been pressed into service. Sukh Vir Singh, Tehsildar (P.W. 7) has recorded this statement. He has not taken care to obtain any certificate from the doctor about the fitness of Kesar das to give the statement. The witness has of course stated that he orally enquired from the doctor on duty, about his condition yet in the absence of any certificate and an endorsement by the Tehsildar to that effect in Ex. P. 11, we are not inclined to hold that the he (P.W. 7) had satisfied himself about the condition of the injured on the basis of the opinion of the doctor. It is noteworthy that on being questioned Dr. P. 11, we are not inclined to hold that the he (P.W. 7) had satisfied himself about the condition of the injured on the basis of the opinion of the doctor. It is noteworthy that on being questioned Dr. Brij Mohan Choudhary (P.W. 11) has stated that he did not remember as to whether he told the Tehsildar that Kesar das was in a fit condition to make statement. Suck Vir Singh (P.W. 7) has not himself scribed Ex. P. 11 rather, as his statement show, he got it recorded by his reader under his supervision The witness admitted that this was the first dying declaration ever recorded by him He has further stated that Kesardas was able to give statement but was perturbed and that, he was speaking in Punjabi-Hindi. The witness stated that he understands Punjabi but cannot speak. The witness further stated that Kesardas knew Hindi also and on being asked to speak in Hindi, Panjabi words still appeared in his statement. The witness could not state what Punjabi words he uttered. This being the position, the Tehsildar translating the Punjabi part of the statement and I dictating to the reader throws doubt on the translation being literal and Ex. P. 11 being the exact reproduction of what the injured might have stated. It I is further to be noted that there is no endorsement about the statement being read over to the deponent and he having admitted it be correct. The Tehsildar has admitted not to have made any such endorsement on Ex. P. 11. In this view of the matter, we have no hesitation to hold that Ex. P. 11 does not carry conviction of being a correct statement and therefore we decline to press it into service. The aforesaid reasons for discarding Ex. P. 11 do not impair the veracity of the other two dying declarations if they otherwise stand the tests of a truthful voluntary dying declarations. We have already discussed Ex. P. 10, the earliest written dying declaration and have arrived at a conclusion that it is truthful recording of the narration given by the injured. 28. Now we shall discuss Ex P. 13, the dying declaration recorded by the Judicial Magistrate. We have already discussed Ex. P. 10, the earliest written dying declaration and have arrived at a conclusion that it is truthful recording of the narration given by the injured. 28. Now we shall discuss Ex P. 13, the dying declaration recorded by the Judicial Magistrate. The argument of the learned counsel for the appellant Nand Singh about the fitness of the patient to give the statement on account of the deterioration of the condition need not detail us much because there is the endorsement at the bottom of the statement by the doctor attending the patient (Kesar Das) that he was fully conscious to give statement. Dr Satish Kumar (P.W. 15) has, with reference to the various enterics in the Bed Head Ticket of the patient stated that on January 21, 1976 at 3.30 a m, one unit of blood was transfused and also stated about improvement in the condition till January 23, 1976. 29. Another argument advanced is that this certificate has no value in the absence of the statement of Dr. S.P. Goyal. Prosecution is expected to examine the doctor in support of the certificate given by him regarding the fitness of the patient to give a statement, but failure on the part of the prosecution to do so does not in all cases undervalue the statement recorded by the Magistrate after observing all necessary formalities. We may not be understood to mean that the doctor giving certificate is not a material witness but we are of the opinion that even in case where the doctor is not examined, the statement need not be discarded merely on that account if it otherwise inspires confidence. The Magistrate Suresh Chand Goyal (P.W. 8) has proved the doctors certificate at the foot of the statement Ex. P. 13 and has also stated that he had also enquired from him about the fitness of the patient to give statement. He has further stated that it was only after the doctor has replied in the affirmative that he had recorded the statement. Similar circumstances were there in the case of State of Rajasthan v. Chunilal and another, Rajasthan Cr. Cases (Vol. II), 166. He has further stated that it was only after the doctor has replied in the affirmative that he had recorded the statement. Similar circumstances were there in the case of State of Rajasthan v. Chunilal and another, Rajasthan Cr. Cases (Vol. II), 166. before the Division Bench of this Court and it was observed that no infirmity can be attached to the dying declaration even when the prosecution had not examined the doctor in support of the certificate given by him, as the Magistrate recording the statement had proved the doctors certificate on the relevant document. Apart from it, there is the categoric statement of Suresh Chand Goyal (P.W. 8) that the voice of the injured was clear and during the period of half an hour which he took in recording the statement neither he (Kesar Das) took any water nor any medicine was given to him. The perusal of the statement Ex. P. 13 shows that it is in the form of questions and answers with the endorsement of R.O. and A.C. It bears the signatures of Kesar Das duly proved by the Magistrate (P.W. 8) which further lands support to its authenticity. 30. Mr. Bhansali strenuously contended that even assuming that the two dying declarations i.e. Ex. P. 10 and Ex. P. 13 were faithfully recorded, there being inconsistencies in them they cannot be said to be the exact reproduction to what the injured might have known at the time of the incident. The inconsistency pointed out is that in Ex. P. 10 the declarant has stated that Nand Singh uttered the words Kesar Das sambhal ja" and fired the shot. While this version is missing in Exp. P. 13. 31. The importance of the various statements being consistent in all material particulars cannot be over emphasized. At the same time if one statement is a short version and the other one is in detail it cannot be said to be inconsistent merely for that reason. To meet, the argument of Mr. Bhansali, Mr. H.N. Calla, learned Public Prosecutor submitted that the memory at the time of the first dying declaration Ex. P. 10 was fresh and, therefore, ail the minute details find place in it. The matter is not so simple and requires card til examination. The utterance by the assailant assumes importance for it might have attracted the attention of the persons inside the room. P. 10 was fresh and, therefore, ail the minute details find place in it. The matter is not so simple and requires card til examination. The utterance by the assailant assumes importance for it might have attracted the attention of the persons inside the room. In this view of the matter we are to examine these two statements as to whether but for this utterance there could not have been any possibility or chance for the victim to have seen the assailant. It will also have to be seen whether there is any corroborative evidence to denote that the deceased had looked towards the door before being shot at. 32. While narrating the story of the utterance by the assailant the deceased had nowhere stated in Ex. P-10 that it was the voice of Nand Singh which had attracted his attention enabling him to recognise the assailant. This story of Nand Singh telling "Kesar Das sambhal ja" appears in the statement P.W, 1 Govind Lal also. Mr. Bhansali has challenged the veracity of that statement which we would discuss at appropriate stage. Govind Lal (P W. 1) has stated that on hearing those words Kesar Das turned his neck towards the door through which the bullet was fired by the accused As the cross-examination of Govind Lal (P.W. 1) shows this fact has not been stated by him in his police statement and for that reason Mr. Bhansali has urged that it cannot be taken to be a corroborative evidence about the deceased having seen the assailant by turning his neck. The argument is not devoid of force and we, therefore, tried to find out whether there is other evidence to show that Kesar Das could actually see the appellant despite the fact of his face being towards the north while taking food This story finds support from the statement of Dr. Satish Kumar (P.W. 15). In cross examination regarding the nature of the injures, in reply to a suggestion about the possibility of the victim sustaining such injuries while sitting with his back towards the assailant, the doctor has stated that if the chest was not moved and the victim only moved the neck on the tight side, them this injury was possible from south-east. In cross examination regarding the nature of the injures, in reply to a suggestion about the possibility of the victim sustaining such injuries while sitting with his back towards the assailant, the doctor has stated that if the chest was not moved and the victim only moved the neck on the tight side, them this injury was possible from south-east. In this view of the mailer the possibility of the deceased turning his neck towards the door through which the assailant fired the shot and sustaining this type of injury cannot be overruled. We are, therefore, of the opinion that merely because utterance of the assailant "Kesar Das sambhal ja" does not appear in Ex. P-13 and that there is no specific reason given by the declarant for his looking towards the door, it cannot be said that he did not turn his neck towards the direction prior to sustaining the injuries. 33. Another factor of considerable importance in this connection is that even if the deceased might have turned his neck and seen the person firing the shot whether there was sufficient light in the room to enable him to recognise who the assailant was. 34. Mr. Bhansali has emphatically argued that there being dark outside the room towards the lane and the statements of the witnesses being inconsistent regarding the lamp and the lantern being there in the room, there could not have been any possibility of anybody inside it to have recognised the person standing at the door. It has also been argued by him that there is no mention of the light of the lamp and lantern in Ex. P. 10, on the basis of which First Information Report was recorded and therefore, it can be inferred that prosecution has introduced the lamp and lantern in the room so that it may be safely established that there was sufficient light to identify the assailant. He substantiated his arguments by referring to the case of The State of Rajasthan v. Balbir Singh and another, 1979 WLN 501 . 35. Phagan Singh (P.W. 3), Govind Lal (P.W. 1) and Budh Singh (P W. 2) have stated about there being one lamp and one lantern in the room where deceased and Govind Lal (P.W. 1) were taking food. 35. Phagan Singh (P.W. 3), Govind Lal (P.W. 1) and Budh Singh (P W. 2) have stated about there being one lamp and one lantern in the room where deceased and Govind Lal (P.W. 1) were taking food. The inconsistency in the statements in this regard pointed out is that Phagan Singh (P.W. 3) has stated that the lantern (Diya) was already there in the baithak and while going to bring Kesar Das and Govind Lal (P.W. 1) he brought the lamp which was already lying burning near the cattle and put it in the baithak. Budh Singh (P.W. 2) has stated that one lantern and one earthen-lamp were burning in that room In his cross-examination he has stated that when Kesar Das and Govind Lal (P W. 1) came in the 'baithak only Diya was burning and after four or five minutes he brought the lantern and put it inside. The argument of the learned Public Prosecutor that P.W. 1 Govindlal attention towards the lantern might have gone after four or five minutes of its being placed there by Budh Singh (P W. 2) is not devoid of force. Similarly the possibility of Phagan Singh (P.W. 3) placing lantern inside the room along with the burning lamp while going to call Kesar Das and Govind Lal (P.W. 1) and thereafter somebody removing the lantern from there and Budh Singh (P.W. 2) bringing it again cannot be over-ruled. The Investigating Officer Jai Bhagwan (P.W. 9) who has prepared the site plan Ex. P 1 has stated about the places shown in the site plan where according to Phagan Singh (P.W. 3) lantern and the Diyawere burning at the relevant time. In this view of the matter, the aforesaid inconsistency in the statements of Phagan Singh (P.W. 3) and Budh Singh (P.W. 2) about the two lamps already been there or one being brought after the arrival of Kesar Das and Govind Lal (P.W. 1) does not carry much importance. So far as the omission of this fact in Ex P. 10 is concerned, it should not be lost sight of that it was given by a person under going pangs and agony of the bullet injury and his whole attention must have naturally been focused on the question as to who the assailant was and what weapon he used. So far as the omission of this fact in Ex P. 10 is concerned, it should not be lost sight of that it was given by a person under going pangs and agony of the bullet injury and his whole attention must have naturally been focused on the question as to who the assailant was and what weapon he used. In the case of The State of Rajasthan v. Balbir Singh and another, 1979 WLN 501 referred by Mr. Bhansali on this point the incident had taken place in the court yard of the house and the source of light was of electric bulb in the courtyard. The omission that fact in the first information report was considered to be of material significance, especially when no such existing source was mentioned in the site inspection memo and in the site plan even by the Investigation Officer. In view of altogether different facts and circumstances of the present case, this authority if of no help to the accused-appellant. In the case on hand the two guests were taking food in that room and it does not appeal to common sense that the host might not have arranged for any light at the time. 36. The important point for consideration now emerging is whether the lantern and the Diya were placed in such a position so as to enable the persons inside to recognise the assailant. There is sufficient evidence to show that one of the lamps was on the left hand side of the cot on which Kesar Das was sitting and placed on a raised hearth place marked as No. 15 in the site plan Ex. P. 1 and the other was on a chair placed at No. 9 shown in the site plan near the eastern wall of the room which was quite close to the door through which the shot is said to have been fired. The measurement of the room was approximately 15 x 16. The light through the lamps therefore can be said to be sufficient for that room. Even then it is still to be examined whether there could have been any direct reflection on the face of the assailant to enable the persons inside to identify him. This is established that 'chabutri outside the door was at a lower level. The light through the lamps therefore can be said to be sufficient for that room. Even then it is still to be examined whether there could have been any direct reflection on the face of the assailant to enable the persons inside to identify him. This is established that 'chabutri outside the door was at a lower level. The argument of the learned Public Prosecutor is that the light of the lamp lying on the chair inside must have thrown sufficient light on the face of the assailant. The cot on which the deceased was sitting was not far away from the door and the direction was angular. Kesar Das was well acquainted with Nand Singh and, therefore, recognising him in close proximity in the light of the lantern as stated above could not impossible. 37. The admissibility of the statement of a person without there being any opportunity to the accused to cross examine him is for the reason that much sanctity is attached to the narration by a dying man who is not ordinarily expected to implicate an innocent man at the time when he is on the verge of leaving this word. With this principle in view and the careful examination of the two dying declarations Ex. P. 10 and Ex. P. 13 we have no hesitation to hold that they have been rightly made the basis of conviction. 38. Govind Lal (P.W. 1) and Budh Singh (P W. 2) have been examined as the two eye witnesses of the occurrence. So far as Budh Singh (P.W. 2) is concerned his presence in the house was quite natural. It has come in both the dying declarations relied upon by us, that Bhudh Singh (P.W. 2) was serving food to the deceased and Govind Lal (P.W. 1). According to this witness when he opened the door for Khan Chand (P.W. 5) and when Khan Chand after having a talk with Kesar Das went inside, the door remained open. The witness went inside the house to bring water. That, when he returned with the water he heard the report (Khudka) of the gun fire and saw Nand Singh taking a turn from the door of the baithak and running away. He had a rifle in his hand at that time. 39. Mr. Bhansali has attacked on the truthfulness of the statement of this witness mainly on three grounds. Firstly. He had a rifle in his hand at that time. 39. Mr. Bhansali has attacked on the truthfulness of the statement of this witness mainly on three grounds. Firstly. that he could not have identified the assailant in the dark. Secondly, that he had not stated about seeing the face of the assailant in his police statement and thirdly that his statement was not recorded immediately after the police had reached the site. 40. While dealing with the dying declarations we have discussed in detail about there being two lamps (lantern and Diya) burning in the room. It is evident from the record that there was no electric supply in village Dudamod. When the people are not accustomed to blazing electric light their eyes are so trained that in the light of lamps and lanterns they can easily recognise persons. Nand Singh was residing in the same lane in which the house of Budh Singh (P.W. 2) was situated. Budh Singh therefore, must be well acquainted with Nand Singh. In this view of the matter there is nothing improbable. In the statement of Budh Sing looking towards the door on hearing the gun fire report (Khudka) and identifying the assailant. The argument of Mr. Bhansali is that Budh Singh (P.W. 2) has not stated in his police statement about having seem the face of the assailant and therefore, his statement about identifying the assailant then and there is a subsequent improvement. The argument is, of course, not totally devoid of force but by this fact alone we are not persuaded to disbelieve the testimony of Budh Singh (P.W. 2) about the identification of the assailant for the reason that Phagan Singh (P.W. 3), Kapoor Singh (P.W 4) and Khan Chand (P.W. 5) who had reached the room immediately after the occurrence have stated that Budh Singh (P.W. 2) and Govindlal (P.W. 1) has told that Nand Singh had fired the shot and injured Kesar Das. So far as the delay in recording the statement is concerned, there is explanation by Budh Singh (P.W. 2) and Phagan Singh (P.W. 3) both. According to the witness on the morning next to the night of occurrence, at about 6.00 or 6.15 a.m. he had gone to irrigate his field situated at a distance of two and half miles. So far as the delay in recording the statement is concerned, there is explanation by Budh Singh (P.W. 2) and Phagan Singh (P.W. 3) both. According to the witness on the morning next to the night of occurrence, at about 6.00 or 6.15 a.m. he had gone to irrigate his field situated at a distance of two and half miles. According to the witness on that day his turn for irrigation started at 6.00 or 6.15 a.m. and he continued irrigation till 4.30 or 4.45 p.m. and then went to his house. Police had left the house by that time. He was then taken by his father to the Police Station. Similar is the statement of Phagan Singh (P.W. 3) father of the witness. The agriculturists are very particular to irrigate their fields when the water is available only by turn for a limited period and therefore, the witness leaving early in the morning for the field was quite natural. The site was inspected at the instance of Phagan Singh (P.W. 3). In this view of the matter the delay in recording the statement of Budh Singh (P.W. 2) cannot be said to be inordinate or unexplained. We are, therefore, inclined to hold that Budh Singh (P.W. 2) has been rightly believed as an eye witness to the occurrence by the learned trial Judge. 41. Govind Lal (P.W. I), Petition Writer, is said to have gone to the house of Phagan Singh (P.W. 3) with Kesar Das on being invited for dinner. Mr. Bhansali has criticised the statement of this witness on a number of grounds. He has doubted the presence of the witness in that room on that day on the ground that if Govind Lal (P.W 1) would have been there, there was no reason for him not to have taken with him his register for entering the petitions written by him, which he was expected under the rules to maintain. A question was put to Govind Lal (P.W. 1) in this regard and he had admitted that he was not having the register with him that day. That might have been a apse on his part to follow the rules and regulations for the petition-writers, but that in itself will not be sufficient to doubt his presence there on that date. That might have been a apse on his part to follow the rules and regulations for the petition-writers, but that in itself will not be sufficient to doubt his presence there on that date. Even Kessar Das was not having with him the register of the affidavits verified by him that day as is evident from the statement of Govind Lal (P.W. 1), but there cannot be any doubt about Kesar Das being there in the room. 42. Another ground taken by Mr. Bhansali is the delay in recording the statement of the witness, Govind Lal (P W. 1) Admittedly he was examined on January 25, 1976. Mr. Bhansali stressed that if Govind Lal (P.W. 1) was an eye witness there was no reason to delay his examination by the police for five days, especially when he was there at Ganganagar during the period Kesar Das was undergoing treatment in the hospital. On the face of it, it appears very strange that the Investigating Officer would not examine such an important witness for such a long period of five days, but at the same time it will have to be seen whether there was reasonable explanation for this delay in examining the witness. The reason given by Jai Bhagwan (P.W. 9) for this delay is that the witness was sent for but was not available. Mr Bhansali submitted that this explanation is not believe able because Birbal had gone to Ganganagar hospital and Govind Lal (P.W. 1) has stated that he was there at Ganganagar during those days. The contention of Mr. H.N. Calla, learned Public Prosecutor is that Jai Bhagwan (P.W 9) had not gone to Ganganagar and it is not necessary that Govind Lal (P.W. 1) must have remained in the hospital or near the patient throughout so as to be available to Birbal. Be it as it may, though there is explanation for the delay in recording the statement it can be said that the Investigating Officer was not very vigilant to secure the attendance of the witness at an early date. 43. Now the question to be determined is whether this delay in itself is sufficient to hold that Govind Lal was not the eye witness to the occurrence and prosecution has introduced a false witness to strengthen its case. 43. Now the question to be determined is whether this delay in itself is sufficient to hold that Govind Lal was not the eye witness to the occurrence and prosecution has introduced a false witness to strengthen its case. It is well settled that it is not in all cases that delay in examining the witness should be considered to be such an infirmity and flaw so as to discard the testimony rather it will depend upon the circumstances of the case and the material proving the presence of the witness at the relevant time. 44. In the case of Ganesh Bhavan Patel and another v. State of Maharashtra, AIR 1979 SC 135 even four days delay in examining the alleged eye witness was considered to be fatal. The reason was the unnatural conduct of that witness in leaving the victim unattended though he was lying injured and bleeding at the spot. 45. In the case of Ranbir and others v. State of Punjab, AIR 1973 SC 1409 . their Lordships were pleased to observe that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case Their Lordships further observed that it is essential that the Investigating Officer should be asked specifically about the delay and the reasons thereof and then it was held that the evidence of a witness does not become untrustworthy merely because he was examined after delay by the Investigating Officer. We are, therefore, of the opinion that the testimony of Govind Lal (P.W. 1) need not be discarded merely on this count if he otherwise impresses as a truthful witness. 46. Mr. Bhansali next argued that had Govind Lal (P.W. 1) been there at the relevant time, the utensils in which he must have taken food should have been found in the room The prosecution case is that the utensils were removed. Govind Lals statement is that, he had already finished his means by the time the incident had taken place. The statements of Govind Lal (P.W. 1), Budh Singh P.W. 2) and Phagan Singh (P.W. 3) are. Govind Lals statement is that, he had already finished his means by the time the incident had taken place. The statements of Govind Lal (P.W. 1), Budh Singh P.W. 2) and Phagan Singh (P.W. 3) are. of course, contradictory to each other so far as the exact time of the removal of the utensils is concerned but the statements of the witnesses taken as a whole do not create any doubt about the presence of Govind Lal (P W. 1) at the relevant time. The witnesses have clearly stated that they do not remember the exact time when the utensils were removed but all of them are unanimous on the point that prior to the arrival of the Police, the utensils were removed. The reason given is that only those utensils were retained in the room which had blood stains on them. 47. It is pertinent to not that the name of this witness appears in both the dying declarations, Ex. P. 10 and Ex. P. 13 Mr. Bhansalis argument that his name does not appear in Ex.P. 11 does not carry weight for two reasons. Firstly, we have not placed any reliance on that dying declaration and secondly, there is the name of Budh Raj Arjinawis accompanying the deceased and there was no Budh Raj in the picture rather it was Budh Singh who was not Arjinawis and this further strengthens our view expressed above that Ex P. 11 cannot be said to be a faithful recording of all what the patient might have stated. Govind Lals presence is admitted by Budh Singh (P.W. 2). Phagan Singh (P W. 3), Khan Chand (P.W. 5) and Kapoor Chand (P.W. 4). In view of this type of evidence we hold that Govind Lal (P.W. 1) was present there in the room at the time of the incident. 48. Govind Lal presence in the room at the time of the incident having been thus established the important point for consideration is whether he was in a position to recognise Nand Singh as the assailant We have already discussed the evidence about the sufficiency of the light in the room. Govind Lal (P.W. 1) was sitting on a cot in front of the cot on which the deceased was. It has not come on record as to in which direction the face of Govind Lal (P.W. 1) was. Mr. Govind Lal (P.W. 1) was sitting on a cot in front of the cot on which the deceased was. It has not come on record as to in which direction the face of Govind Lal (P.W. 1) was. Mr. H.N. Calla, learned Public Prosecutor has submitted that he must naturally by sitting with his face towards Kesar Das and. therefore, his face must have been south In the absence of any specific evidence on the poi it we find ourselves unable to come to a definite opinion on this point Govind Lal (P.W. 1) has stated that the assailant had uttered the words "Kesar Das sambhal ja" after putting one foot step inside the threshold and other foot remaining outside. The witness has further stated that in case one step of the accused would not have been inside the door at the time of firing the shot and he would not hive spoken, the witness could not have identified him On this version of the witness Mr. Bhansali built up the argument that because of the omission in the police statement of the fact that the assailant uttered the words after putting his foot step inside the threshold, the testimony of the witness relating to the identification of the assailant should be disbelieved. In cross examination the attention of the witness was drawn to his police statement Ex. D 1. The omission on this point has been put to the witness in a very ingenious way that it is not mentioned therein that "Nand Singh ne apna ek panw darwaja ke ander rakh kar sambhal jane wali hat kahi ho aur goli chalai ho". This does not prove any omission about the two factors viz. the one foot step being inside and the utterance of the words "sambhal ja" rather relates to the sequence of the utterance of the words "sambhal ja" being after the foot step being put inside. In this view of the matter, we are not inflamed to hold that this theory of "sambhal ja" has been introduced by the witness for the first time in his statement at the trial It is also to be noted that in the first dying declaration of Kesar Das Ex. P. 10, recorded immediately after his being taken Padampur dispensary, this story about the accused giving the Lalkar "Kesar Das sambhal ja" finds place. 49. Mr. P. 10, recorded immediately after his being taken Padampur dispensary, this story about the accused giving the Lalkar "Kesar Das sambhal ja" finds place. 49. Mr. Bhansali vehemently contended that no person in his proper sense would be so reckless so as to reveal his identity to the witness prior to the commission of the crime. In support of his argument he referred to the case of Datar Sirgir v. The State of Punjab, AIR 1974 SC 1193 . It was a case of committing an unnatural crime of patricide. The alleged eye witnesses were disbelieved by the Court and in view of that, the theory of the assailant giving a lalkar of Thakur Singh lo the victim was also not relied upon. The reason for this opinion given by their Lordships was that there was nothing on the record to show that the appellant was suddenly so incensed and gripped by a passion to shoot his father as to have become oblivious to the consequences of revealing his identity by rushing to the chowbara to shoot at Thakur Singh. We are in agreement with Mr. Bhansali that ordinarily there is a natural instinct of the culprits to conceal their identity. The reason is that there is a deep rooted feeling of self preservation and as a natural corollary there would be an effort to conceal the identity. But cases are not rare in which the assailant gripped in some passion or emotion or prevailed over by some revengeful spirit would throw a challenge and then act upon it or give a warning to the victim. Mr. Calla, learned Public Prosecutor contended that in the part of the State where this occurrence has taken place i.e. Ganganagar side, it is a general feature that the assailants do use the words 'tagra ho jaorsambhal jaand therefore, there was nothing so unnatural in the assailant giving a lalkar in these terms. There being no evidence about the general tendency of the culprits in that part of the State we are not inclined to give much weight to this argument of the learned Public Prosecutor but at the same time as observed above this utterance by the assailant does not appear to be so unnatural so as to totally disbelieve this part of the prosecution story. 50. 50. The next question that arises for determination is whether in such a short lime the witness Govind Lal (P.W. 1) was able to identify the assailant. Govind Lal (P.W. 1) has stated that he had written certain petitions at the instance of Nand Singh and therefore, was well acquainted with him. The assailant had made a successful aim from a close range and we are in agreement with the argument of the learned Public Prosecutor that Govind Lal (P.W. 1) could not have mistaken the assailant at such close quarters. 51. As a result of above discussion, we are of the opinion that Govind Lal (P.W. 1), and Budh Singh (P.W. 2) against whom there is no allegation that they had any animus to implicate Nand Singh have been rightly believed as the witnesses to the occurrence and they lend full support to the two dying declarations. 52. We may observe that it is well settled that in cases where dying declaration is considered to be authentic given by a person who was conscious and in a fit condition to give a statement, no corroboration is required. It is this principle which is enunciated in the case of Munnu Raja and another v. State of Madhya Pradesh, AIR 1976 SC 2199 . in the following terms:- "It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must riot look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration". 53. What we mean to say is that in this case there are two authentic dying declarations which themselves could be sufficient to base a conviction but there is also the corroboration of those dying declarations in the form of the statements of two eye witnesses which after careful scanning, we have found lice from any infirmity. 54. Now we will examine the evidence regarding the motive for the accused appellant Nand Singh to commit the crime In Ex. 54. Now we will examine the evidence regarding the motive for the accused appellant Nand Singh to commit the crime In Ex. P. 10 the declarant has stated that there was a ceiling case of Nand Singh in which he was his counsel. Subsequently Nand Singh engaged another counsel. The case was decided against Nand Singh and for that reason he became annoyed with the deceased. Govind Lal (P.W. 1) has stated that after the incident Kesar Das had told him that the accused suspected that he (Kesar Das) had soiled his case and therefore, had shot him. Because the other witnesses present at the time in the room where the incident had taken place, do not support Govind Lal (P.W. 1) on this point we are reluctant to attach any importance to this part of the statement of Govind Lal (P.W. 1) But there is another corroborative piece of evidence in the form of statement of advocate Munni Lal Garv (P.W 12) who has specifically stated that Nand Singh had engaged Kesar Das in his ceiling case and then engaged the witness for that matter. That, on enquiry as to why he was changing his counsel Nand Singh had told the witness that he was not satisfied by the pleading of Kesar Das. This fact of changing of counsel has not been denied by the accused. Mr. Bhansali has stressed that even if this story about the grievance of Nand Singh is believed, still on this petty point he would not have committed such a heinous crime specially so when lie had won the case in appeal Motive is always a subjective condition of mind and it is only the doer of the act who can know as to what particular feeling prevailed upon him to do a particular act at a particular moment. Cases are not rare in which the courts have to go without clear evidence regarding motive and still there is finding of conviction if other clinching evidence exists to justify it. We are, therefore, of the opinion that whatever value may be attached to the evidence regarding the motive it will not come in the way of the conviction of the accused for the reason that there is unimpeachable, cogent convincing evidence against him in the form of dying declarations and testimony of eye witnesses. 55. We are, therefore, of the opinion that whatever value may be attached to the evidence regarding the motive it will not come in the way of the conviction of the accused for the reason that there is unimpeachable, cogent convincing evidence against him in the form of dying declarations and testimony of eye witnesses. 55. We therefore, find full justification in the conviction of the appellant for the offence under section 302 Indian Penal Code. 56. Assailing the finding of guilt for the charge under section 27 of the Arms Act, Mr. Bhansali challenged the recovery of the rifle in pursuance of the alleged information furnished by the appellant Nand Singh and submitted that the witnesses to the recovery have not supported the recovery memo and that falsifies the version given by Jai Bhagwan, Station House Officer. Much discussion is not required on this point because the rifle Ex. 8 being the licenced one with the accused is not denied. Similarly it being given to the Station House Officer by the appellant is also not disputed. Mr. Bhansalis contention is that it was not in pursuance of any information rather on demand that the rifle was given to the Station House Officer by the accused. Be it as it may, it will not make any difference because the licence was in the name of the accused. 57. Mr. Bhansali next argued that the presence of an empty cartridge in the rifle in itself will not connect the owner with the crime. He placed reliance on the principle enunciated in the case of Dungar Singh v. The State of Rajasthan, 1976 Cr. L.R. (Raj.) 557. In that case the revolver alleged to be the weapon of offence was recovered at the instance of the accused. It was containing an empty cartridge in the barrel. In the absence of the specific opinion of the ballistic expert that the revolver was used recently it was held that the presence of the empty cartridge in the revolver cannot connect the revolver with the crime. There being no other convincing evidence to connect the accused with the offence of committing murder, he was acquitted of the charge under section 302 Indian Penal Code. However in view of the recovery of the revolver at his instance his conviction under section 25(i)(a) of the Arms Ac twas maintained. 58. There being no other convincing evidence to connect the accused with the offence of committing murder, he was acquitted of the charge under section 302 Indian Penal Code. However in view of the recovery of the revolver at his instance his conviction under section 25(i)(a) of the Arms Ac twas maintained. 58. In the present case the empty cartridge is of course found in the rifle and was not recovered at the site and in the absence of there being specific opinion of the expert about the duration of the use of the rifle this recovery of empty cartridge may not be an incriminating circumstance for the crime of murder but that would not bring to an end the charge under section 27 of the Arms Act. The reason is that there is cogent and convincing evidence about the accused being in possession of the fire-arm at the time of the incident. The main ingredient of the offence under this section i.e. intent to use the same for any unlawful purpose, is not far to seek. The act of the accused-appellant in firing the planned successful shot hitting the victim Kesar Das indicates his guilty intention in this regard. We, therefore, find justification in the conviction and sentence under section 27 of the Arms Act also. 59. Now we proceed to deal with the appeal filed by the State for enhancement of the sentence for the offence under section 302 Indian Penal Code. 60. Mr. Calla, learned Public Prosecutor for the State emphatically argued that the accused is guilty of the ghastly murder of a young budding lawyer with a spirit of vengeance for losing a case and therefore, extreme penalty should be awarded. 61. Mr. Bhansali, learned counsel for Nand Sing submitted that the circumstances of the case have been rightly taken into consideration by the learned trial Judge and the extreme penalty is not warranted. 62. Is is really unfortunate that a young man with blooming career has met his end in such a nasty way but in view of the young age of the accused and a period of five years having lapsed since the date of the incident we do not consider it just and proper to interfere in the discretion exercised by the learned trial Judge in the matter of punishment. 63. 63. Consequently, both the appeals filed by the accused Nand Singh and the State of Rajasthan fail and are hereby dismissed.Appeal Dismissed. *******