M. C. JAIN, J. Sessions Trial Nos. 181 of 1979 and 197 of 1979 had been conjoined together and decided by a common judgment dated 7th December, 1981 by Sri D. K. Agarwal, the then I Additional Sessions Judge, Banda. In Sessions Trial No. 181 of 1979 Bhupat and Nakatiya alias Babo were tried. The charges against Bhupat were under Sections 302, 307 and 323 read with Section 34 IPC as well as under Sections 25 and 27 of the Indian Arms Act. Nakatiya @ Babo was tried with him for the charges under Sections 323, 307 IPC read with Section 34 IPC and under Section 302 read with Section 34 IPC. Smt. Nakatiya was acquitted but Bhupat was convicted under Section 302 IPC and under Section 27 of the Indian Arms Act. He was sentenced to life imprisonment under Section 302 IPC and two years rigorous imprisonment under Section 27 of the Indian Arms Act. 2. Murder of one Lachhmaniya was committed in this incident which occurred on 12th October, 1978 at about 11 a. m. near minor canal in village Dikhitwara, P. S. Atarra, district Banda. The murder of one Jagdish was also attempted but simple injury was caused to him and Bhupat was found to have an illicit arm for unlawful purpose. The two accused belonged to village Malhotra, Police Station Atarra, district Banda. Though Nakatiya was a married lady but she had illicit relations with Bhupat. There was some dispute between Nakatiya and Jagdish son of Ram Das. Jagdish left the village for lodging the FIR at the Police Station against her. Nakatiya with her paramour Bhupat followed him. On reaching the minor canal in village Dikhitwara, Nakatiya began to assault Jagdish with Danda which she carried and instigated Bhupat to shoot him down. Bhupat, who carried a pistol fired at Jagdish son of Ram Das. The shot did not hit him. At about the same time, Lachhmaniya with some other ladies was going to visit a relation who had delivered a child. Her cousin brother Jagdish Prasad Brahman was also present nearby. They were attracted on hearing the sound of shot. Two constables namely, Hori Lal and Raghuveer Singh who were on patrol duty nearby were also attracted to the scene. They tried to apprehend Bhupat but he opened fire on them which hit Lachhmaniya, an unconcerned lady. Her cousin brother Jagdish Prasad Brahman was also present nearby. They were attracted on hearing the sound of shot. Two constables namely, Hori Lal and Raghuveer Singh who were on patrol duty nearby were also attracted to the scene. They tried to apprehend Bhupat but he opened fire on them which hit Lachhmaniya, an unconcerned lady. Bhupat and Nakatiya were thereafter apprehended at the spot and taken to the Police Station Atarra along with both the injured. Jagdish cousin of Lachhmaniya lodged the report, on the basis of which a case was registered. Constable Hori Lal lodged an oral report against Bhupat under Sections 25 and 27 of the Arms Act on the basis of which another chick report was prepared. Lachhmaniya and Jagdish son of Ram Das were sent for medical examination and their injuries were examined by Dr. Krishna Gopal Vaishya, PW-5. Lachhmaniya was referred to District Hospital Banda, where she died on 14th October, 1978. On the conclusion of the investigation, both the accused were charge-sheeted. It would be relevant to state here that the following injuries were found on the person of Lachhmaniya on 12th October, 1978 at 12. 45 p. m. at the time of her medical examination : (1) Gunshot wound 1 cm x 0. 5 cm x 0. 2 cm (Probe easily enters into wound) at left side on jaw (mandible) 5. 5 cm below left ear. No staining. Advised X-ray. (2) Gunshot wound 1 cm x 0. 8 cm x 1. 5 cm (Probe easily enters into wound) on left side abdomen, epigastrium region, 2 cm below lower border left Breast. Advised X-ray. Staining around wound was present. (3) Gunshot wound 1. 2 cm x 0. 5 cm x 1 cm (Probe easily enters into wound) on left side abdomen 2 cm below injury No. 2. X-ray advised. Staining of skin present. (4) Gunshot wound 1 cm x 0. 5 cm x 1 cm on left side abdomen in hypochondirum, staining of skin present, 3. cm away from injury No. 3. X-ray was advised. (5) Gunshot wound 0. 5 cm x 0. 2 cm x skin deep on left side chest just below lower margin of Lt. breast. (6) Gunshot wound 0. 8 cm x 0. 5 cm x 3 cm (Probe easily enters into wound) on left upper arm middle portion outer side, staining of skin present. X-ray was advised. X-ray was advised. (5) Gunshot wound 0. 5 cm x 0. 2 cm x skin deep on left side chest just below lower margin of Lt. breast. (6) Gunshot wound 0. 8 cm x 0. 5 cm x 3 cm (Probe easily enters into wound) on left upper arm middle portion outer side, staining of skin present. X-ray was advised. (7) Gunshot wound 1. 2 cm x 0. 3 cm muscle deep (Probe easily enters into wound) on the back of left hand in between left of middle and ring finger. Staining present. (8) Exit wound of injury No. 7, 0. 4 cm x 0. 2 cm muscle deep, connected with injury No. 7 at palm of left hand in between ring and middle finger. (9) Gunshot wound 1 cm x 1 cm x 3 cm (Probe easily enters into wound) downwards, on front of left thigh. Upper 1/3 staining present. 3. According to the Doctor, all the injuries had been caused by fire-arm. 4. Jagdish had sustained the following injuries as found on his medical examination on 12-10-1978 at 1. 30 p. m. : (1) Lacerated wound 2 cm x 0. 5 cm x scalp deep on the right side head, 11 cm above occipit. (2) Lacerated wound 0. 2 cm x 0. 1 cm x scalp deep on right side head, 0. 6 cm above injury No. 1. (3) Contusion 6 cm x 2. 5 cm on right side back upper portion, colour reddish. 5. The aforesaid three injuries were caused by blunt object and were simple. 6. Dying declaration of the deceased Lachhmaniya also came to be recorded. 7. Post-mortem over the dead-body of the deceased was conducted by Dr. G. J. Gupta PW-9 on 15-10- 1978 at 12. 10 p. m. Suffice it to say that gunshot injuries had been found an ante-mortem injuries and she had died as a result of shock and haemorrhage resulting therefrom. 8. At the trial the prosecution examined nine witnesses out of whom Jagdish Prasad PW-1, Sharda PW-2, Jagdish son of Ram Das PW- 3 and Constable Hori Lal Yadav PW-4 were eye witnesses. 9. The defence was of denial. Raja Ram DW-1 was examined on behalf of Nakatiya to prove an application allegedly given by her on 26th July, 1978 to Superintendent of Police, Banda about the illegal arrest of her son from her house. Dr. 9. The defence was of denial. Raja Ram DW-1 was examined on behalf of Nakatiya to prove an application allegedly given by her on 26th July, 1978 to Superintendent of Police, Banda about the illegal arrest of her son from her house. Dr. D. S. Rana was examined as DW-2 to prove the bed head ticket of Smt. Lachhmaniya. 10. In the ultimate conclusion, the trial Court recorded the finding as stated hereinabove. Naturally, Bhupat is aggrieved by his conviction and sentences and has preferred this appeal. 11. We have heard Sri K. D. Tripathi, learned Counsel for the appellant and learned AGA in opposition of this appeal. The gist of the submissions made by the learned Counsel for the appellant is that Smt. Lachhmaniya was not the target of the shooting as per the own case of the prosecution and as such the appellant cannot be deemed to have committed the murder, the so-called dying declaration of the deceased could not be believed, the directions of the deceased and the appellant were such that she could not have been hit by the shot allegedly fired by the latter and there were contradictions in the testimony of eye witnesses who could not be believed. Reference was also made to the alleged enmity between Jagdish Prasad PW-1 and the appellant Bhupat. 12. So far as the first question that Smt. Lachhmaniya was not the target of shooting as per the own case of the prosecution is concerned, Section 301 IPC is the complete answer to the argument of the learned Counsel for the appellant. It reads as under : " (301) Culpable homicide by causing death of person other than person whose death was intended. If a persons by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. " 13. The appellant opened fire on two constables who attempted to apprehend him at the spot and to avoid his arrest. " 13. The appellant opened fire on two constables who attempted to apprehend him at the spot and to avoid his arrest. The shot so fired by him hit an unconcerned person Smt. Lachhmaniya, who died as a result thereof. Having regard to the provision of law contained in Section 301 IPC it would not make any difference at all that Smt. Lachhmaniya was not the target of shooting and was an unconcerned person. Therefore, the first argument advanced by the learned Counsel for the appellant is liable to be rejected and is hereby rejected. 14. Next we come to the dying declaration of the deceased. It was Dr. K. G. Vaishya PW-5 who had initially examined the injuries of Smt. Lachhmaniya in Government Hospital Atarra at 12. 45 p. m. on 12- 10-1978 where she was taken by C. P. No. 191 Brij Kishore of P. S. Atarra, after the lodging of the FIR. The dying declaration was also recorded by him at 12. 10 p. m. which has been proved by him as Exhibit C-1. The Doctor has emphatically testified that the dying declaration had been recorded by him. He produced the carbon copy of the same (Exhibit C-1) and the original had been sent by him to SDM Naraini. The duplicate copy too contains the thumb-mark of Lachhmaniya. The learned Counsel for the appellant has argued that no Magistrate was present at the time of the recording of the dying declaration and that the original has not been produced. On the non-availability of the original, the carbon copy could definitely be proved by the said Doctor without there being any legal impediment. The carbon copy was prepared with the original in the same process. It also contains the endorsement of dying declaration being forwarded to Sub- Divisional Magistrate, Naraini for necessary action. The dying declaration is to the effect that at the time of the incident, she was going to see her niece in Ayurvedic Hospital Atarra, who had given birth to a child ; that Bhupat was accompanied by Nakatiya ; that Bhupat opened fire on the approaching constables, but the shot hit her. She was then taken to Police Station Atarra and thereafter to the hospital. There is no reason to suppose that the Doctor would record a fictitious dying declaration of the deceased. She was then taken to Police Station Atarra and thereafter to the hospital. There is no reason to suppose that the Doctor would record a fictitious dying declaration of the deceased. There can be no valid objection in relying upon the said dying declaration of the deceased, which is an important piece of evidence, supporting the prosecution case against the appellant Bhupat. From Atarra, she was referred for treatment to Banda where she died. Having regard to her injuries, which required immediate and best medical treatment Dr. K. G. Vaishya PW-5 could not be expected to wait for the arrival of the Magistrate to record her dying declaration. To be short, the dying declaration of the deceased is a legal piece of evidence supporting the case of the prosecution against the accused appellant. 15. It is further to be observed that the most important feature of the case is that the appellant was apprehended at the spot with countrymade pistol (weapon of offence) two live cartridges and one empty cartridge from the barrel of the pistol. Recovery memo was prepared by two constables Hori Lal and Raghuveer at the place of incident itself and thereafter he was taken to Police Station. Not only this the country-made pistol and empty cartridge contained in the barrel of the pistol were subjected to scientific examination in respect of which Sri V. Rai, Ballistic Expert submitted a report with the finding that the empty cartridge had been shot from the countrymade pistol (recovered from the appellant ). There was no good reason to ignore the report of the Ballistic Expert. 16. It has been urged by the learned Counsel for the appellant that Jagdish Prasad PW-1, Lachhmaniya and the appellant were going in the same direction and Lachhmaniya was behind Bhupat appellant. It was reasoned that Bhupat would not have opened fire in the opposite direction. The argument is too theoretical and artificial. The case is that when the two constables attempted to arrest Bhupat, he ran away and he fired from his countrymade pistol to scare away the constable. Visualizing the scenario, it cannot be said that the position of Lachhmaniya remained unchanged when Bhupat began to run away and fired shot to get away from the constables who were coming from the north direction and wanted to apprehend him. 17. Visualizing the scenario, it cannot be said that the position of Lachhmaniya remained unchanged when Bhupat began to run away and fired shot to get away from the constables who were coming from the north direction and wanted to apprehend him. 17. We note that there are no noteworthy contradictions in the testimony of the eye witnesses Jagdish Prasad PW-1, Smt. Sharda PW-2, Jagdish son of Ram Das PW-3 and Constables Hori Lal Yadav PW-4, which could shake or dislodge the prosecution case against the appellant. Constable Hori Lal Yadav PW- 4 was one of the two constables who had apprehended the appellant at the spot and upon whom the appellant had opened fire, which actually hit Smt. Lachhmaniya. There is nothing to presume that he would concoct a false case against him without any apparent cause, so much so that his arrest at the spot with weapon of offence could also be planted. 18. Some enmity of Jagdish Prasad PW-1 with the appellant has been highlighted by making reference to his cross-examination where he admitted that he had heard about the dispute which took place between his Phupha namely Lalu and appellants grand-father and that a dispute had also taken place between his sons and Bhupat earlier to the present incident. However, the details of such disputes have not been brought on record. The learned trial Judge has rightly observed that in the absence of the same, no idea could be formed about the magnitude of such dispute (s) that they were of such nature that this witness could go to such extent to implicate the appellant Bhupat falsely. Therefore, neither any importance could be attached to the alleged bad blood between Jagdish Prasad PW-1 and appellant Bhupat nor there were any significant contradictions in the testimony of the eye-witnesses. 19. On the basis of the judicial scrutiny of the evidence on record and attending circumstances in the light of the arguments of the learned Counsel for the appellant, we do not entertain the slightest doubt about the appellant being the culprit who murdered Smt. Lachhmaniya on the given date, time and place by the weapon which was recovered from him on his arrest. Really speaking, he was a dangerous person who indulged in indiscriminate firing to avoid his arrest and scare away two approaching constables who wanted to apprehend him, without being least careful as to the consequences. Really speaking, he was a dangerous person who indulged in indiscriminate firing to avoid his arrest and scare away two approaching constables who wanted to apprehend him, without being least careful as to the consequences. 20. As a matter of fact, the charge against the appellant under Section 25 Arms Act failed because of technical flaw of proper sanction. He has rightly been convicted under Section 27 of the Arms Act for using fire-arm for unlawful purpose, i. e. committing the murder of Smt. Lachhmaniya. The trial Judge also afforded the possible benefit to Nakatiya (non-appellant) as against her there was no evidence excepting that of Jagdish son of Ram Das PW-3 regarding his assault by her. The evidence of exhortation, the part assigned to her, was also not there. 21. The conclusion arrived at by the learned trial Court is perfectly warranted by judicial and critical scrutiny of the evidence together with concomitant circumstances. The appeal has no merit and is liable to be dismissed. 22. The appeal is hereby dismissed. The appellant Bhupat is on bail. He shall be arrested and lodged in Jail to serve out the sentences passed against him. The Chief Judicial Magistrate Banda shall report compliance of his order within two months. The record of the lower Court be returned to the Court below forthwith. Appeal dismissed. .