JUDGMENT Madan Mohan Lal, J. 1. This is am appeal against the judgment and order dated 6-3-1978 passed by Sri Mohan Singh the then 5th Additional Sessions Judge, Fatehpur by which be convicted Ajaipal Singh appellant under section 302 IPC and sentenced him to imprisonment for life. 2. The appellant and deceased Rajendra Singh were residents of village Mauhal, Police Station Kalyanapur, District Fatehpur. About 15 or 20 days prior to the murder of Rajendra Singh the sister-in-law of the latter was ill. On that day at about 11 in the night, when the deceased, along with Jageshwar Singh, Virendra Singh, Surajdin and Mahabir Singh was sitting at the door of his house, the appellant, along with Ram Asrey and Lala Singh came towards that side and stood on the "rasta" and started laughing and talking loudly. They were asked as to who they were on which Ram Asrey disclosed his identity. Virendra Singh then told the appellant and his companions that at such a time they should hot make noise. It is said that the appellant and his companion Lala Singh then climbed on the "Chabuttra" of the deceased in a fighting mood. The prosecution has alleged that at the said time Rajendra Singh slapped the appellant and pushed him down from the chabutra. The appellant then went away after advancing threats. It is the further case of the prosecution that on 29-4-1977 at about 5 P. M. Rajendra Singh was returning home from village Bindki Chaudagra on cycle. When he reached in his village in front of the "chaupal" of one Shiroman Singh, situated towards east of his (deceased) bouse, the appellant came out of the said "chaupal" and asked him to stop. As soon as Rajendra Singh deceased stopped his cycle the appellant., armed with rifle, came down from the "chabutra" and fired two shots, out oil which one hit Rajendra Singh deceased and he fall down injured. After this incident the appellant ran away with his rifle. This incident was seen by informant Gopal Singh, father of the deceased, and by Bhawani Deen and Sheo Pratap Singh etc. The deceased was taken to nearby G. T. Road on a cart. Sheo Narain Singh was sent to Bindki Chaudagra to arrange for conveyance. After this incident the appellant ran away with his rifle. This incident was seen by informant Gopal Singh, father of the deceased, and by Bhawani Deen and Sheo Pratap Singh etc. The deceased was taken to nearby G. T. Road on a cart. Sheo Narain Singh was sent to Bindki Chaudagra to arrange for conveyance. In the meantime Gopal Singh got the report of the incident written and sentt the same and an empty cartridge, recovered from the place of occurrence, to the police station through indrapal Singh. The said report was lodged at P. S. Kalyanapur, situated at a distance of three miles, on the same day at 6-15 P. M. Rajendra Singh was taken to the District Hospital, Fatehpur in a bus where he was medically examined. As his condition was serious, hence his dying declaration was recorded by Sri Shafatullah, S. D. M. Fatehpur at 8 P. M. on the same day. Rajendra Singh was subsequently shifted to L.L.R. Hospital on the same night. Rajendra Singh died on 1-5-1977 at 8-35 P. M. 3. In support of its case the prosecution examined 3 eye-witnesses, namely, PW 1 Gopal Singh informant, PW 2 Sheo Pratap Singh and PW 3 Bhawani bin. PW 4 Indrapal Singh carried the written report of the incident and empty cartridge to the police station. PW 5 Dhooni Singh had seen the appellant running away with the rifle from the sidle of place of occurrence immediately after this incident. PW 7 Suraj Din andl PW 8 Jageshwar Singh are the witnesses of the earlier incident, which took place 15-20 days prior to this incident. PW 12 Shaftullah, S.D.M. had recorded the d}\ing declaration of the deceased. PW 9 Constable Jagdeo Prasad had recorded the first information report and bad registered the case. PW 10 Ram Narain Lal, S. I., had prepared the inquest .report of the dead-body. PW 13 Constable Btbu Lal had converted and registered this case from section 307 IPC to section 302 IPC 4. PW 14 Dr. S. K. Gupta was Medical Officer, District Hospital Fatehpur. He had medically examined Rajendra Singh deceased on 29-4-1977 at 7 P. M. and had found the following injuries on his person :- 1. One gun shot wound of entry 3-1/2" x 3/4" x abdominal cavity deep on Rt. PW 14 Dr. S. K. Gupta was Medical Officer, District Hospital Fatehpur. He had medically examined Rajendra Singh deceased on 29-4-1977 at 7 P. M. and had found the following injuries on his person :- 1. One gun shot wound of entry 3-1/2" x 3/4" x abdominal cavity deep on Rt. Side of abdomen 1/2" away from the mid line of abdomen upper limit lying 4-1/2" below x iphisternum with multiple loops of small intestine and omentum protuding outside the wound. Blackening and tattooing was present. Bleedding was profused. Direction front to back. 2. One gun shot wound of exit 1/4" x 1/4" x abdominal cavity deep on the back and lower part in mid line 1-11/2" above the tip of cocy x Blackening and tattooing was absent. PW 15 Dr. Ila Bannerji was lecturer (Surgery) in the Kanpur Medical College. She had operated Rajendra Singh deceased. Rajendra Singh expired on 1-5-1977 at 8.35 P. M. Post mortem examination of the dead- body of Rajendra Singh was made by Pw 6 Dr. H. O. P. Jha. He found the following ante-mortem injuries on the said dead-body. 1. Stitched wound Horizontal 7 eta long with 3 stitches over left upper arm upper outer part. On removing stitches found an incised wound 7 cm x 2 cm x muscle deep. 2. Stitched wound 18 cm long over left side of abdomen vertical from umbilicus and 3 drainage tubes one on each side of abdomen and one in the middle. On removal of stitches (15) four wounds 8 cm long with margins lacerated 11 cm below and 8 cm above. Pubic symphysis with wound, having clean cut margins lacerated and below it. 3. Stitched wound lower part of back between folds of buttock upper at the It. Side of cocy x 3 cm. long with 3 stiches. On removal of stitches found a wound with lacerated margins in the middle of stitched wound 1/2 cm long No blaekening swollen and tattooing were found in the above wound. 4. Incised wound Rt. and lower and front part 2 cm x 1/2 cm x muscle deep. 5. ON internal examination the said doctor found that the heart was empty weighing about 200 grams. Peritoneum was found stitched. Blackish green fluid was present. 4. Incised wound Rt. and lower and front part 2 cm x 1/2 cm x muscle deep. 5. ON internal examination the said doctor found that the heart was empty weighing about 200 grams. Peritoneum was found stitched. Blackish green fluid was present. Small intestines wens found stitched all round over middle part left side at places Large intestines were normal and were stitched at tour places. Bladder was empty. 6. In the opinion of the doctor tie death of Rajendra Singh bad occurred due to shock and haemorrhage. Investigation of this case was conducted by PW 11 Sri Jai Karan Singh S. I. He went to Village Mauhal on 30-4-1977, where he recorded the statements of Gopal Singh, Dhooni Singh and Jageshwar Singh etc. He was shown bicycle of Rajendra Singh deceased and the same was then given by him in the supurdagi of Jageshwar Singh. He recorded the statement of the informant on 1-5-1977. the statement of Sheo Pratap Singh was taken on 3-5-1977. 7. The appellant in his statement denied the case of the prosecution and further stated that the fields belonging to his family and the fields of Gopal Singh were adjoining to each other, that the said fields were irrigated from the Same "Kulaba" and that on account of the same there remained quarrel between them and that this was why he had been falsely implicated in this case. 8. In defence the appellant examined DW 1 Pooran Singh alias Kallo to depose that there were 2-3 persons of the name of Rajendra Singh son of Gopal Singh. The learned lower court has believed the case set up and the evidence adduced by the prosecution and has accordingly convicted and sentenced the appellant as aforesaid. Aggrieved with the same the appellant -has filed Ibis appeal. 9. We have heard the learned counsel for the appellant and the State and 'have perused the record carefully. 10. This is a case in which the guilt of the appellant is established beyond reasonable doubt from the dying declaration made by Rajendra Singh deceased. PW 12 Shafatullah, who was S.D.M, Fatehpur, has deposed that on 29-4-1977 he went to District Hospital Fatehpur, where he recorded the dying declaration of Rajendra Singh deceased at 8 P. M. which is Ex. Ka-19. PW 14 Dr. PW 12 Shafatullah, who was S.D.M, Fatehpur, has deposed that on 29-4-1977 he went to District Hospital Fatehpur, where he recorded the dying declaration of Rajendra Singh deceased at 8 P. M. which is Ex. Ka-19. PW 14 Dr. S. K. Gupta has stated in his evidence that at the time of the recording of the said dying declaration he had made a note about the condition of Rajendra Singh deceased. It may be observed that vide his said note the said doctor stated that Sri Rajendra Singh was in fit state of mind to give his statement and that he remained so throughout the said statement. There is every reason to believe the said evidence and it is, therefore, clear from the said evidence that on 29-4- 1977 at about 8 P. M. PW 12 Shafatullah, S.D.M., recorded the dying declaration of Rajendra Singh deceased at 'District Hospital, Fatehpur and that at the said time the latter was mentally fit to make the said statement. PW 14 Dr. S. K. Gupta has also deposed that at the time of recording of the aforesaid dying declaration he and Pw 12 Shafatullah, SD.M. atone were present and the others were removed from the said place. There is thus nothing to doubt that the dying declaration made by Rajendra Singh deceased was voluntary. 11. It is apparent in this case that when Rajendra Singh deceased made the said dying declaration he had not been tutored. This is clear from the fact that in his dying declaration Rajendra Singh deceased stated that none-else was present at the time of the incident. In our opinion, had Rajendra Singh been tutored by any interested person when he would have been made to state that the witnesses were there to witness this incident and he would not have been allowed to state that none-else was present at that place. From the said circumstance we are also convinced that Rajendra Singh gave a truthful version of the incident. 12. The dying declaration was also made at the earliest opportunity. From the said circumstance we are also convinced that Rajendra Singh gave a truthful version of the incident. 12. The dying declaration was also made at the earliest opportunity. It may be noted that whereas this incident took place on 29-4-1977 at 5 P. M. in Village Mauhal the dying declaration of Rajendra Singh was recorded at the District Hospital, Fatehpur by Shafatulllah, S.D.M. within three hours, i. e. on the same day at 8 P. M. Rajendra Singh had full opportunity to observe, see and identify his assailant. It may be observed that this incident took place in a broad day light, i. e. on 29-4-1977 at 5 P. M. The point that this incident took place in the day light is clear from two facts, firstly, from the fact that the First Information Report in this case was lodged at P. S. Kalyanapur, situated at a distance of 3 miles, on the same day at 6.15 P. M. and, secondly from the fact that the injuries of Rajendra Singh were examined at the District Hospital, Fatehpur on the same day at 7 P. M. Thus, there is no matter of doubt that the incident had taken place in the day light on 29-4-1977 at 5 P. M. as alleged by the prosecution. In our opinion, when this incident took place in broad day light, the deceased had full opportunity to see, observe and recognise his assailant. It may not be out of place to state here that in his dying declaration Rajendra Singh, besides other things, stated that the appellant bad fired a shot at him from a rifle. This shows that the deceased had seen the weapon from which shot was fired at him. Had the deceased not seen the weapon there was no question for him to make a reference to the same in his dying declaration. The fact that the deceased gave the description of the fire-arm by which shot was fired at him shows that he (deceased) had full opportunity to see his assailant. 13. The contents of dying declaration real that the capacity of Rajendra Singh to remember the facts had not been impaired at the time of making the statement. The fact that the deceased gave the description of the fire-arm by which shot was fired at him shows that he (deceased) had full opportunity to see his assailant. 13. The contents of dying declaration real that the capacity of Rajendra Singh to remember the facts had not been impaired at the time of making the statement. It may be noted that in his dying declaration Rajendra Singh stated that on the said day between 5 and 6 p. m. he was returning to his home from Bindki Chaudagra and that when he reached the door of Shroman, resident of Mauhal, then Ajaipal Singh son of Narendra Singh, resident of village Mauhal, came from the side and fired a shot at him from the rifle, on which he fell down and that Ajaipal Singh, appellant, ran away. In our view such a statement could have been made by the deceased in an unhalting manner only when his capacity to remember the facts had not been impaired. 14. There is no manner of doubt in the proposition that where the person making the dying declaration had opportunity to observe and identify the assailant, when his capacity to remember the facts had not been impaired at the time of making statement, when he was in a fit mental condition, when before making the dying declaration he had not been tutored by the interested person, when the statement had been made al; the earliest opportunity, when the dying declaration was a truthful version of the incident and when it is found that the said declaration was voluntary then such a dying declaration can safely be relied upon and assailant can be held guilty solely on the basis of the said dying declaration. The learned counsel for the appellant has referred to us the injuries of Rajendra Singh and on the basis of the same has tried to argue that when the deceased was hit from the back then there was no question of bis having seen and recognised the appellant. In our opinion, the said argument has no merit as may be seen from the injuries reproduced above. Rajendra Singh deceased had sustained one gun shot wound of entry on his right side of abdomen. When this is so, the deceased had full opportunity to see the assailant. 15. The learned counsel for the appellant has submitted that the said injury no. Rajendra Singh deceased had sustained one gun shot wound of entry on his right side of abdomen. When this is so, the deceased had full opportunity to see the assailant. 15. The learned counsel for the appellant has submitted that the said injury no. 1 measuring 3 1/2 "x 3/4 " could not have been a wound of entry in the light of injury no. 2 which measured 1/4 " x 1/4 ". In this context he has taken us to the evidence of Dr. S. K. Gupta, PW 14, who had examined the said injuries of Rajendra Singh, to show that the said doctor wavered at one stage of his evidence and tried to state that the aforesaid injury no. 1, which was described by him as a gun shot wound of entry, may be a gun shot wound of exit and injury no. 2 may be gun shot wound of entry. It is true that ordinarily the gun shot wound of exit is larger than the gun shot wound of entry and, therefore, the description of the aforesaid injuries posed some difficulty and thus at the earliest the investigating agency had asked the doctor to explain the matter. Ex. Kha 3 is the explanation which the said doctor had furnished on 20-5-1977 and in the same he stated that although it was a general rule that gun shot wound of exit was larger in size than the wound of entry yet he added that the present case was an exceptional case. However, he further stated that because the condition of the patient was serious and the injury was on vital organ hence he did not consider it advisable to probe the wound. It may however, be observed at this place that the doctor had found blackening and tattooing present around injury no. 1. The said blackening and tattooing could not have been possibly present on a gun shot wound of exit. 16. In this case PW 16 Dr. J. S. Lokhra, Medical Superintendent, District Hospital, Fatehpur was examined as an expert and he stated in his evidence that ordinarily the wound of entry was larger than the gun shot wound of exit. But he did not hesitate to add that he was not an expert. At best Dr. J. S. Lokhra, PW 16, tried to state about a general rule, which could always be subject to exceptions. But he did not hesitate to add that he was not an expert. At best Dr. J. S. Lokhra, PW 16, tried to state about a general rule, which could always be subject to exceptions. H. W. V. Cox in his book on Medical Jurisprudence and Toxicology (5th Edn.) (page 274) has stated that there may be enlargement of the hole caused by gas pressure when the gun shot wound is aimed on contact or at very shot range. Any way, we are of the opinion that the medical evidence in this case does not completely rule but tie possibility of Rajendra Singh deceased having seen his assailant. We are also of the view that even if the injury no. 2 is treated as gun shot wound of entry, line victim still would have had sufficient opportunity to see the assailant. He would have obviously taken a round and seen the assailant specially when in his dying declaration he was clear to state that he had seen the weapon which was being carried on by the assailant and was described as rifle. The incident, as already observed, took place in a broad day light and, therefore, we have no hesitation to say that the victim had full opportunity to see and recognise the assailant. The learned counsel for the appellant has urged before us that Ajaipal Singh son of Narendra Singh, resident of Mauhal, referred to in the dying declaration may be a person other than the appellant because there were more persons than one of the same name in the village. In this connection he has referred to us the evidence of DW 1 Pooran Singh. The learned counsel for the State, on the other hand, has submitted that the evidence of DW 1 Pooran Singh was vague and unreliable and that when the prosecution had produced witnesses to the effect that there was no person other than the appellant of the name of Ajaipal Singh son of Narendra Singh then had there been any truth in the assertion that there were more persons than one of the said name and parentage, the defence should have produced extract of the Kutumb Register of the village. In the light of the said argument we haves gone through the evidence and we find the evidence given by the DW 1 Pooran Singh unreliable and the evidence given by the prosecution witnesses as convincing. It may be noted that DW 1 Pooran Singh tried to state in his evidence that 2-3 persons of the name of Ajaipal Singh son of Narendra Singh residence of Mauhal were known to him. It may be observed that he was not sure as to the said persons were 2 or 3 in number. He specifically referred to only one other Ajaipal Singh whose father's name was Surajpal resident of village Mauhal. In his cross-examination this witness admitted that he did not know the names of all the family members of all the persons named Narendra Singh residing in his village. He did not know the names of the other sons of Narendra Singh except Ajaipal Singh. He referred to one Narendra Singh, who had died about one year ago. He then changed and stated that the said Narendra was alive. From such type of evidence we find no reason to differ with the view taken by the learned lower court that the evidence of DW 1 Pooran Singh did not inspire confidence and that the same could not be believed. As against the same the prosecution examined PW 3 Bhawani Din, PW 5 Dhooni Singh and PW 7 Suraj Din, who deposed that there was only one person of the name of Ajaipal Singh son of Narendna Singh in the village Mauhal and he was the appellant in this case. We have gone through the said evidence and we agree with the view taken by the learned lower court that the said evidence can be believed We are thus satisfied thalt Ajaipal Singh son of Narendra Singh, resident of village Mauhal, referred to in the dying declaration, was the appellant and no other person. 17. We have gone through the said evidence and we agree with the view taken by the learned lower court that the said evidence can be believed We are thus satisfied thalt Ajaipal Singh son of Narendra Singh, resident of village Mauhal, referred to in the dying declaration, was the appellant and no other person. 17. Although we are of the view that the conviction and sentence of Ajaipal Singh appellant can be sustained merely on the basis of the dying declaration made by Rajendra Singh deceased, yet it would be proper to state at this place that the case of the prosecution against the appellant is strengthened from the evidence of PW 5 Dhooni Singh, who had seen the appellant running away from the side of the incident immediately after the occurrence and from the evidence of PW 7 Suraj Din and PW 8 Jageshwar Singh, who had deposed about the earlier incident. 18. PW 5 Dhooni Singh had stated in his evidence that on the date of the incident at about 5.30 P. M. he was returning to his home from the house of Ram Sajiwan Ehandal and that when he was on rasta towards east of the house of Gopal Singh informant he heard the firing of two shots etc. He further deposed that at the time he found Ajaipal Singh appellant carrying a rifle, running away towards south and that wham he went ahead he found Rajendra Singh lying injured. This witness withstood cross-examination well and there is nothing in his cross-examination which may discredit him. In our view, the fact that at the time of the incident the appellant carrying a rifle was running away from the side of the place of occurrence lends support to the case of the prosecution against the appellant. PW 7 Suraj Din and Pw 8 Jageshwar Singh have stated in their evidence that few days prior to this incident at about 11 in the night when they, along with Rajendra Singh and Bindoo, were sitting at the door of the house of the informant Gopal Singh, the appellant, along with others, came on the "rasta" and stood in front of the said door, on which Bindoo inquired as to why they were to be told by the appellant as to why he raised such an objection daily. They have further stated in the evidence that the appellant then climbed the "chabutra" of Gopal Singh, informant., and gave a challenge on which Rajendra Singh deceased slapped the appellant and pushed him down. Both these witnesses have given a consistent version of the prior incident and there is no material contradiction in their evidence about line same. We are thus satisfied that a few days prior to the occurrence the aforesaid altercation had taken place between the deceased Rajendra Singh on the one hand and the appellant on the other. We find merit in the argument advanced by the learned counsel for the State that only a person having a motive to exterminate the appellant would have committed his murder. 19. The learned counsel for the State has urged before us that there was every reason to believe in this case the three eye witnesses, namely, PW 1 Gopal Singh, PW 2 Sheo Pratap Singh and PW 3 Bhawani Deen. We find no merit in the said argument. Rajendra Singh deceased in his dying declaration clearly stated that at the time of incident no one else was present. In our view by making the said statement Rajendra Singh, excluded the possibility of any eye witness having witnessed the incident. Therefore, we are not inclined to believe the said three eye-witnesses that they had witnessed the occurrence. 20. To conclude, we are of the opinion that the case of the prosecution against the appellant is made out beyond reasonable doubt solely from the dying declaration made by Rajendra Singh deceased. The case of the prosecution, however, also finds support and strength from the evidence of PW 5 Dhooni Singh, who saw the appellant armed with a rifle, running away from side of the place of occurrence immediately after the incident and also from the previous enmity between the appellant on the one hand and Rajendra Singh deceased on the other. The learned lower court was thus justified in convicting and sentencing the appellant under section 302 IPC. In the result, therefore, this appeal is dismissed- The conviction and the sentence of Ajaipal Singh appellant under section 302 IPC are maintained. The appellant is on bail. He shall be taken into custody forthwith so that he may serve out the sentence of life imprisonment imposed on him. Appeal dismissed.