Judgment B.N.P.Singh, J. 1. At the outset, we may briefly refer to the salient features of the prosecution case against the appellant centering around the incident in question. The gravamen of charges against the sole appellant was that at about 7.30 p.m. on 6th February, 1991, while deceased Shiv Prakash along with his brother Om Prakash (P.W. 5) and Sushil Kumar (P.W. 6) was returning after purchasing vegetables and sweets and had reached south of the house of Sudarshan Ram, the appellant also accompanied them and fired a shot from the front side on the chest of Shiv Prakash, pursuant to which, he dropped on the ground. On alarms being raised, it was alleged that those who flocked to the place of occurrence, were Bhola alias Jai Prakash Paswan, Baidyanath Prasad, Arjun Prasad, Krishna Sao and others, before whom the injured made oral dying declaration stating inter alia, the names of the appellant as the assailant and the visitors were also informed by Om Prakash about the appellant being assailant of his brother. After the injured was carried to Pilgrim hospital for treatment, there too both the deceased and his brother disclosed complicity of the appellant as the assailant, who had shot at the injured. As the injured was in precarious condition, the doctor (P.W. 9) referred Shiv Prakash to Magadh Medical Hospital, Gaya, and there too the injured was crying loudly about the complicity of the appellant as his assailant and in course of treatment, the injured eventually succumbed to the injuries. The prosecution was launched at behest of Om Prakash Paswan (P.W. 5), brother of the deceased, pursuant to which usual investigation commenced during which the Police Officer recorded statements of witnesses, visited the place of occurrence, secured post mortem examination report and on conclusion of investigation, laid charge sheet before the Court. 2. The plain defence of the appellant was that of his innocence and his false implication on behest of Sri Jai Prakash Palit, Ex M.L.A. and local leader of Congress. The State examined at trial altogether 9 witnesses, who are brother of the deceased, two doctors, the Police Officer and others, who claimed to have reached the place of occurrence shortly after the incident. The State examined at trial altogether 9 witnesses, who are brother of the deceased, two doctors, the Police Officer and others, who claimed to have reached the place of occurrence shortly after the incident. The trial court after proper evaluation of the testimony of the witnesses, while did not find merit in the defence of the appellant, recorded verdict of guilt finding the appellant guilty under section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life. 3. Before we delve into the appreciation of contentions raised at Bar on behalf of the appellant, a brief resume of narrations made by the prosecution witnesses is made which may assist to arrive at a proper conclusion. To begin with the evidence of Om Prakash Paswan (P.W. 5), we find him reiterating his early version which he rendered before the Police about the appellant accompanying him while he was returning along with his brother Shiv Prakash and Sushil Kumar, after making purchases of vegetables and sweets, and firing a shot at his brother Shiv Prakash when he dropped on the ground. The narration made in the early version about the injured having been removed firstly to Pilgrim Hospital, Gaya, and then on being referred to Magadh Medical College Hospital, Gaya was also reiterated by Om Prakash Paswan, who was the maker of the fardbeyan. The injured notwithstanding his treatment, however, did not survive and eventually succumbed to the injuries. He claimed to have set the criminal law in motion while launching prosecution against the appellant having rendered the fardbeyan before the Police. The witness would reiterate about the oral dying declaration having been made by his injured brother and even before the persons who flocked to the place of occurrence shortly after the incident and also during his treatment in the hospital. 4. Now we may switch over to the evidence of Sushil Kumar (P.W. 6) who happens to be the maternal cousin of the deceased and also that of Om Prakash. The narration made by this witness at trial was that on 6th February, 1991, while Shiv Prakash and Om Prakash were returning with him from market after purchasing vegetables and sweets when they happened to reach near the house of Sudarshan Ram, the appellant came there and having accompanied them, fired a shot at Shiv Prakash and made good his escape. They removed Shiv Prakash to hospital and eventually he died at Magadh Medical College Hospital. The fardbeyan of Om Prakash Paswan recorded by the Police also bears his signature testifying his presence at the time of recording the fardbeyan of his brother. As for the motive, the witness would state that Shiv Prakash was a social worker, who had reprimanded the appellant not to play gambling for which the appellant had threatened him. Three witnesses, namely, Baijnath Prasad (RW. 1), Ramjee Prasad (P.W. 2) and Jai Prakash Paswan (P.W. 4) stated to have reached the place of occurrence shortly on hearing the sounds of firing, when they noticed Shiv Prakash in pool of blood bearing injuries on his person. All these three witnesses stated about oral dying declaration having been made by the injured, about complicity of the appellant who fired shot on him. Ramjee Prasad (P.W. 2) also claimed to have witnessed the fleeing of the appellant from the place of occurrence. The complicity of the appellant was also disclosed to them by Om Prakash (P.W. 5) and Sushil Kumar (P.W. 6). 5. Dr. Sarwesh Kumar, Medical Officer posted at Pilgrim Hospital, Gaya (P.W. 9) states that injured Shiv Prakash was brought to Pilgrim Hospital, Gaya and during his examination, he noticed gun shot injuries on the chest of the deceased and as the injured was in precarious condition, he referred him to Anugrah Narain Medical College, Hospital, for better treatment. Another doctor examined by the State was Dr. Mithilesh Kumar of Magadh Medical College, Gaya, and he happens to be P.W. 9 who stated to have held autopsy over the dead body of the deceased and noticed following anti mortem injuries on his person : There was bandage over chest. There was one oval wound of entry of size 3/4" x 1/2" x chest cavity deep located over front of right side of lower chest located x 3" below right nipple with tatooing around entry and blackend and inverted margin. Direction of the wound was downward, backward and medially towards left side. There was fracture of right 7 and 8th ribs at front and laceration of right lung with pleura, liver and diaphragm, chest and abdominal cavity were filled with blood clots. One distorted metallic pellet was found lodged into body of first lumber of vertebra. Direction of the wound was downward, backward and medially towards left side. There was fracture of right 7 and 8th ribs at front and laceration of right lung with pleura, liver and diaphragm, chest and abdominal cavity were filled with blood clots. One distorted metallic pellet was found lodged into body of first lumber of vertebra. These injuries in the estimation of the doctor were grievous in nature and were also dangerous to life, caused by fire-arm. Death of the deceased in the opinion of the doctor was due to shock and haemorrhage and assault in opinion of the doctor might have been made from a close range. The doctor also opined that since there was laceration of right lung with pleura, liver and diaphragm, there may be sudden massive haemorrhage causing death in a minute and on receipt of such injuries,the patient would not have been in a position to talk. Mahesh Ram (P.W. 8), who was the Investigating Officer, stated to have recorded the fardbeyan of Om Prakash in the hospital on 6th of February, 1991 at 21.30 hrs, pursuant to which he took up investigation of the case, and visited the place of occurrence, which was adjacent to the pucca road situated at the adjacent eastern side of the boundary wall of Improvement Trust at a distance of 100 yards from Railway Gumti, Bageshwari. The Police Officer states to have received the inquest report of the dead body of the deceased prepared by another Police Officer and concluded investigation on receipt of the Post mortem report. 6. Since the trial court has also relied on some documents placed on the record by the State, we consider it proper to make reference of them and these documents are condition report of the deceased Shiv Prakash prepared in Magadh Medical College Hospital, Gaya, which is Exhibit 8 and it shows that the injured was admitted in the hospital in Surgical Emergency ward in gasping state with bandages over right lower chest, and pulse and Blood Pressure were not recordable. The State also brought on the record the dead body carrying certificate (Exhibit 9) and reference certificate of Pilgrim Hospital, Gaya, which is Exhibit 10. 7. Now we may refer to some of the arguments which have been advanced on behalf of the appellant, obviously to criticise the propriety of findings of the court below. The State also brought on the record the dead body carrying certificate (Exhibit 9) and reference certificate of Pilgrim Hospital, Gaya, which is Exhibit 10. 7. Now we may refer to some of the arguments which have been advanced on behalf of the appellant, obviously to criticise the propriety of findings of the court below. The contentions are raised that though the witnesses, who claimed to be ocular or even those who claimed to have seen Shiv Prakash lying injured at the place of the occurrence stated about oral dying declaration having been made by the injured before he succumbed to the injuries, if the positive findings recorded by the doctor,who held autopsy over the dead body of the deceased or even condition report of the deceased (Exhibit 8) was to be given due consideration, that would completely belie the claim of these witnesses about the injured to be capable to make any speech on receipt of such injuries on his person, which were not only grievous but even dangerous to life. We, however, hold the view that even the finding recorded by the doctor and also the condition certificate suggesting the patient in gasping condition, whose blood pressure and pulse were not recordable,would not rule out the possibility of the injured making speech and also render dying declaration shortly after receipt of the injuries on his person which was not on the upper part of chest but it was in the lower part of the chest and also that neither his brain, neck nor vocal chord was damaged.Reference can be had to the observations made by the Apex Court in the case reported in 1978 Cr.L.J. 1603 (State of Haryana V/s. Harpal Singh and others) when in similar situation, the Court recorded a finding that the fact that pulse was not palpable and blood pressure was unrecordable and the patient was in a gasping condition would not necessarily show that the patients condition was such that no dying declaration could be recorded. Relying even on the condition report (Exhibit 8), we may find that the deceased survived for about an hour on receipt of the injuries and it was not the case of the prosecution that the injured succumbed to the injuries shortly on its receipt on his person which may rule out the possibility of the injured making speech on receipt of these injuries. That apart, some of the witnesses before whom the deceased made oral dying declaration before he succumbed to the injuries, have made consistent narration before the Court about the injured having made dying declaration before them and possibly no fault can be found with the witnesses whose conduct was not impeached by the defence to be unnatural. However, we may hasten to add that Ramjee Prasad (P.W. 2) and Jai Prakash Paswan (P.W. 4) did not make similar narration before the Police about oral dying declaration having been made in their presence by the injured and on this score narration made by these two witnesses at trial about oral dying declaration having been made before them has to be kept out of consideration. The evidence of other witnesses on this score was quite in conformity with the statement rendered before the Police and their evidences was not impeached by the defence about that being contrary to their version made before the Police. Since a stray statement was made by P.W. 6 about he having not witnessed firing at the deceased, the defence wants to make capital of such omission on the part of the witness and we are impressed with the finding recorded by the Court below that no conclusion can be drawn by picking up isolated sentence of the witness without adverting to the statement as a whole which is also the rule of appreciation of evidence, and on these premises we endorse the findings of the court below about P.W. 6 to be the ocular witness of the incident. 8. There being negative evidence of the Investigating Officer about seizure of any offending article from the place of occurrence or drop of blood, would not introduce any legal infirmity in the prosecution version as it is now well known maximum that for fault of Investigating Officer,which might have been committed due to negligence, the prosecution cannot be a casualty. Since the occurrence took place at a public place, presence of empty shells of cartridges or even stains of blood may not be an assured possibility due to passage of passersby and on this count too we do not notice infirmity in the prosecution case. Since the occurrence took place at a public place, presence of empty shells of cartridges or even stains of blood may not be an assured possibility due to passage of passersby and on this count too we do not notice infirmity in the prosecution case. Likewise, contention raised at Bar that many persons have not been examined at trial who were suggested to have flocked to the place of occurrence shortly after the incident, did not merit consideration as it was not obligatory on the part of the State to examine each and every witness, and that apart those who were examined at trial had given true account of the occurrence and they deserve credence. Though credibility of P.W.6 was also sought to be impeached by the defence at trial drawing his attention to his early version which he rendered before the Police but from the evidence of the Investigating Officer on that account we find that there was nothing like that which can exclude the possibility of this witness to be the ocular witness of the assault on the deceased. Likewise, though P.Ws. 1, 2 and 4 were not the eye witnesses yet they assured corroboration to the testimony of other ocular witnesses about Sheo Prakash lying injured and even one of them claimed to have witnessed the appellant making good his escape. Evidence of these witnesses coupled with the finding of the doctor do suggest that Sheo Prakash died homicidal death and complicity of the appellant, who executed killing of the deceased by gun shot injuries was quite explicit and also writ large in the evidences placed on the record. 9. Having analysed the evidence placed on the record and the facts and circumstances of the case, we do not feel persuaded to take a contrary view than of the trial Judge who conducted the proceeding and rendered finding of guilt against the appellant and also sentenced him in the manner stated above. There being no merit, this appeal is dismissed. R.N.Prasad, J. 10 I agree.