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Punjab High Court · body

2010 DIGILAW 225 (PNJ)

Iqbal Singh v. State Of Punjab

2010-01-11

HEMANT GUPTA, JASWANT SINGH

body2010
Judgment HEMANT GUPTA, J. 1. The present appeal is directed against the judgment dated 10.4.2001, convicting the present appellant for the offence punishable under Sec.302 ipc, for the murder of Bikar Singh and Nirbhai Singh and sentencing him to undergo life imprisonment and to pay a fine of Rs.5000/- each on two counts and also in default of payment of fine to further undergo rigorous imprisonment for a period of six months on each count. The appellant was further sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of rs.1000/- and in default thereof to further undergo rigorous imprisonment for a period of two months under Sec.27 of the Indian Arms Act, 1959 . 2. The appellant has been charged for the aforesaid offences on the basis of statement of Bikar Singh S/o Saudagar Singh (Ex. PRR), which is to the effect that he has friendship with Nirbhai Singh S/o kashmira Singh, resident of Chakki, P. S. Machhiwara (deceased) and Iqbal Singh s/o Mohinder Singh (accused-appellant ). On 23.6.1998 at about 8.00 PM, Iqbal singh demonstrated with his uncle Harmel Singh that Bikar Singh and Nirbhai singh have deceived him in friendship, as they are keeping evil eye upon his wife. Harmel Singh talked to Bikar Singh. Bikar Singh told him that there is nothing in this matter and they will clear the matter. On 24.6.1998 at about 7.00 AM, he (Bikar Singh) alongwith his father Saudhagar Singh, uncle Harmel singh and Nirbhai Singh on the scooters went to the house of Iqbal Singh for clarification. As soon as they got down before the gate of his (Iqbal Singh)house after parking the scooter, Iqbal Singh, who was armed with his double barrel gun of.12 bore and standing before the gate of his courtyard, told them that it is better that you had come, otherwise he had to search for them. He was told that he should first hear them. Iqbal Singh in the presence of saudagar Singh, father of Bikar Singh and uncle Harmel Singh fired with his licenced gun at Bikar Singh directly, the pallets of which hit at his chest. The other fire was shot at Nirbhai Singh, which hits his abdomen. They raised hue and cry upon which Iqbal Singh ran away on his car alongwith his gun. The other fire was shot at Nirbhai Singh, which hits his abdomen. They raised hue and cry upon which Iqbal Singh ran away on his car alongwith his gun. Subsequently, after arranging the vehicle, he (Bikar Singh) and Nirbhai Singh in the injured condition, were taken to Civil Hospital, Machhiwara. The police action on the said statement was taken by SI/sho Balbir Singh, P. S. Machhiwara. On the basis of such statement, DDR No.3 was recorded at 8.20 AM and FIR No.42 dated 24.6.1998 (Ex. PRR/2) was lodged. The special report was received by the Magistrate on 24.6.1998 at 11.00 AM. 3. The appellant was arrested on 24.6.1998 at about 9.00 PM and the offending gun and two live cartridges were recovered. The report of Forensic science Laboratory, Chandigarh (Ex. PZ/2) shows that two cartridges were fired from the left and right barrel of the said.12 bore gun of the appellant. 4. It may be noticed that initially charge was framed against the appellant in respect of murder of Bikar Singh by the learned Sessions Judge on 1.12.1998. It was on 2.8.2000, charge was amended and that of offence under section 302 for the murder of Nirbhai Singh was also added. The prosecution case is based upon dying declaration Ex. PRR of Bikar Singh, completed at 8.10 am on 24.6.1998 and the eye-witness account of Saudagar Singh, father of Bikar singh (PW-12) and Harmel Singh, uncle of Bikar Singh (PW-9 ). The prosecution also relies upon dying declaration of Nirbhai Singh recorded on 25.6.1998. To prove the dying declaration, it is the case of the prosecution that ruqa (intimation) Ex. PD was sent by Dr. Jasdev Singh (PW-2 ). On such intimation being received, the police party headed by SI Balbir Singh, reached the Civil hospital, Machhiwara. Ex. PE is the request letter to S. M. O. , Civil Hospital machhiwara, in respect of fitness of Bikar Singh for the purpose of his statement, whereas Ex. PF is the request letter in respect of Nirbhai Singh. Dr. Jasdev Singh (PW-2) has declared Bikar Singh as fit for making statement, whereas Nirbhai Singh was found to be unfit to make statement and was referred to Civil Hospital, Ludhiana. On such opinion given by Dr. Jasdev Singh, the statement of Bikar Singh was recorded, which was thumb marked by Bikar Singh. Such statement of Bikar Singh was endorsed by dr. On such opinion given by Dr. Jasdev Singh, the statement of Bikar Singh was recorded, which was thumb marked by Bikar Singh. Such statement of Bikar Singh was endorsed by dr. Jasdev Singh in the following manner : "this statement given by this patient Bikar Singh S/o Saudagar Singh in my presence and also L. T. I. given in my presence". Bikar Singh was also referred to Civil Hospital, Ludhiana, but he died on the way near village kohara. The inquest report (Ex. PC) on the body of Bikar Singh was prepared by asi Ajmer Singh, who was deputed by SI Balbir Singh on receiving of wireless message. Swaran Singh and Gurdev Singh have identified the dead body of Bikar singh. The post- mortem on the body of Bikar Singh was performed at 3.00 PM at civil Hospita, Samrala, on receipt of police request Ex. PB alongwith accompanying papers through C. Naurang Singh at 2.30 PM. The post- mortem report (Ex. PA) and the pictorial diagram of the injuries on the person of Bikar singh, shows that injury Nos.1 and 2 are on forehead, injury Nos.3, 4 and 5 are on the upper chest and injury Nos.6 and 7 are on the left arm. Seven pallets were removed from the body and handed-over to the police authorities by Dr. Amarjit Singh (PW-1), who performed post- mortem. " 5. On the other hand, Nirbhai Singh was declared dead by Dr. Ashwarya mehra (PW-4) vide memo Ex. PL at 3.20 AM on 5.7.1998. Vide Ex. PJ, ASI Harbans lal, Police Station Machhiwara has requested C. M. O. Civil Hospital, Ludhiana, for the post-mortem on the dead body of Nirbhai Singh. Vide endorsement ex. PJ/1, Dr. Gurcharan Singh was deputed to do the needful on 5.7.1998. The inquest report is Ex. PK. The post-mortem was performed at about 3.00 PM. The post-mortem report in respect of Nirbhai Singh is Ex. PH. The prosecution has also examined Dr. Gurcharan Singh (PW-2), who performed post-mortem on the dead body of Nirbhai Singh at Civil Hospital, ludhiana. Dr. K. S. Kular (PW-10), who declared Nirbhai Singh as fit for making statement on 25.6.1998. Dr. Bharat Rattan (PW-15) produced the case history of treatment to Nirbhai Singh at Ludhiana. 6. The prosecution has also examined SI Balbir Singh (PW-14), ASI harbans Lal (PW-13), HC Naurang Singh (PW-16), ASI Gopal Kishan (PW-18) and ASI ajmer Singh (PW-19 ). Dr. K. S. Kular (PW-10), who declared Nirbhai Singh as fit for making statement on 25.6.1998. Dr. Bharat Rattan (PW-15) produced the case history of treatment to Nirbhai Singh at Ludhiana. 6. The prosecution has also examined SI Balbir Singh (PW-14), ASI harbans Lal (PW-13), HC Naurang Singh (PW-16), ASI Gopal Kishan (PW-18) and ASI ajmer Singh (PW-19 ). The statements of other prosecution witnesses are not material at this stage, as the same are formal in nature. 7. The accused in his statement recorded under Sec.313 Cr. P. C. has stated that prior to the occurrence Bikar Singh and Nirbhai Singh were on friendly terms with him. His wife complained to him that both of them had cast an evil eye on her. On the evening prior to the occurrence, he complained about the conduct of Bikkar Singh and Nirbhai Singh to Harmel Singh, uncle of Bikar singh. He has further stated that on 24.6.1998 at about 5.00 AM, when he was sleeping in his house and his wife was putting fodder to the domestic cattle, bikar Singh and Nirbhai Singh came to his house and gave a knock through the small window at outer gate of the house. When his wife opened the window, Bikar singh and Nirbhai Singh pounced upon her and she ran back into the inner portion of the house. Upon hearing the cry of his wife, he challenged Bikar singh and Nirbhai Singh. Bikar Singh tried to attach him with his Kulhari. His licenced gun was at that time lying on his bed. He then picked up the same and fired one shot in his self defence and that fire shot hit both Bikar Singh and nirbhai Singh. The accused has also examined his wife Sukhbir Kaur (DW-1), who has deposed on the similar lines as the stand taken by the appellant in his statement under Sec.313 Cr. P. C. The learned trial Court found that at the time of recording statement of Bikar singh, he was mentally alert and conscious and has given the details of the occurrence and that there was nothing wrong or unnatural about the same. There is no ground to disbelieve such dying declaration of Bikar Singh, which is also corroborated from the statement of Harmel Singh (PW-9) and that of Saudagar singh (PW-12 ). The trial Court also found that the medical evidence supports the ocular version. There is no ground to disbelieve such dying declaration of Bikar Singh, which is also corroborated from the statement of Harmel Singh (PW-9) and that of Saudagar singh (PW-12 ). The trial Court also found that the medical evidence supports the ocular version. The trial Court also found that the accused was having sufficient motive to commit the crime. The defence version was found to be unreliable, as Kulhari was not found at the spot at the time of investigation. It also found that there is no evidence that the deceased tried to cause any harm to the wife of the accused on any occasion and, therefore, suspicion in the mind of the accused against both the deceased appears to be ill-founded. The statement of Smt. Sukhbir Kaur (DW-1), wife of the appellant was found to be false and without any substance. 8. Learned counsel for the appellant has vehemently argued that the entire prosecution case is based upon manipulations and incorrect facts. The prosecution witnesses are not telling truth and have contradicted themselves in the material particulars about the timing of occurrence. It is contended that bikar Singh has, in fact, died at Machhiwara, as the nature of injuries upon his person were sufficient to cause his death within half an hour. It is contended that the dying declaration, the process of which is said to be completed at 8.10 AM, is falsely prepared document, as Bikar Singh could not be in a condition to give statement of one and a half page, coupled with another one and a half page of police action. Such statements could not be completed, had the occurrence taken place at 7.00 AM. It is, thus, contended that the prosecution has manipulated the timings of the occurrence and the version of the appellant is more trustworthy and reliable. It is pointed out that in ruqa (Ex. PD), the arrival of the patients is recorded as 7.20 AM. There is no mention of dispatch of such intimation to the Police station. HC Naurang Singh (PW-16) in his cross-examination stated that he reached at the spot at 7.15 AM, alongwith SI Balbir Singh, whereas SI Balbir singh as PW-14, has stated that he has firstly gone to Civil Hospital, wherein he had made a request Ex. PE about the medical fitness of Bikar Singh to make statement. HC Naurang Singh (PW-16) in his cross-examination stated that he reached at the spot at 7.15 AM, alongwith SI Balbir Singh, whereas SI Balbir singh as PW-14, has stated that he has firstly gone to Civil Hospital, wherein he had made a request Ex. PE about the medical fitness of Bikar Singh to make statement. On the other hand, ASI Ajmer Singh (PW-19) in his cross-examination deposed that he reached at the Civil Hospital, Machhiwara at about 7.40 AM. He has taken about 2-3 minutes in writing application Ex. PE and another 2-3 minutes to write application Ex. PF. It is, thus, contended that 3 pages report could not have been prepared in about 20-25 minutes time. It is also contended that in ruqa (Ex. PD), the names of Saudagar Singh and Harmel Singh were not disclosed as is normal procedure admitted by Dr. Jasdev Singh himself. Thus, harmel Singh (PW-9) and Saudagar Singh (PW-12) have been introduced subsequently. 9. In respect of death of Bikar Singh at Machhiwara, learned counsel for the appellant relies upon the statement of Harmel Singh (PW-9), who has deposed that he learnt about the death of Bikar Singh at about 8.30 AM and the dead body of Bikar Singh was brought to the Police Station, Machhiwara at about 8.30 AM itself. It is, thus, contended that the story that Bikar Singh died on the way to Ludhiana and near village Kohara, is a made up story. 10. In respect of capacity of Bikar Singh to make statement, learned counsel for the appellant has relied upon the statement of Dr. Amarjit Singh (PW-1), who has deposed that keeping in view the nature and dimensions of the injuries, the possibility of the injured unable to make any statement about half an hour after causing of injuries to him, could not be ruled out. He has also deposed that arota, the main blood vessel coming out of the heart, was ruptured. Therefore, the statements of the prosecution witnesses that Bikar Singh remained standing for about 10-15 minutes before the vehicle was arranged to remove him to hospital, is totally falsehood and with such kind of injuries, Bikar Singh would fall immediately and was not in a fit condition to make statement Ex. PRR. We do not find any substance in the arguments raised by the learned counsel for the appellant. PRR. We do not find any substance in the arguments raised by the learned counsel for the appellant. The manner of occurrence; consequent medical help to the injured; and the police action in respect of recording of statements and collecting other evidence need to be examined keeping in view the fact that all three i. e. the appellant, Bikar singh and Nirbhai Singh are admittedly friends. Bikar Singh has stated so in his dying declaration. So is the statement of appellant under Sec.313 cr. P. C. The difference in stand in the prosecution case and that of the accused, is in respect of timing and manner of occurrence. However, whether the prosecution has been proved the incident in the manner propounded needs to be examined. It is not disputed that Machhiwara is a small place and the place of occurrence, hospital and the Police Station are in close proximity i. e. half kilometer from each other. The evidence also need to be examined keeping in view that the perception in time spent in different aspects regarding recording of requisitions and statements would vary from person to person, as it is subjective. Such timing is by approximation and there could be some contradictions and/or variation, when the witnesses have been examined after more than two years. 11. Now the incident is said to have occurred at 7.00 AM. Keeping in view the distance of the place of occurrence and the civil hospital and the time taken by the Doctor to give drip to the patients and to send the requisition, arrival and recording of statement of Bikar Singh, cannot be said to be improbable. Dr. Jasdev Singh (PW-2) in his cross-examination, has deposed that the Police arrived at the civil hospital in 20 to 25 minutes. ASI Gopal Krishan (PW-18) has produced rojnamcha Ex. DA, wherein SI Balbir Singh has left for Civil Hospital at 7.30 AM. ASI Ajmer Singh (PW- 19) has deposed that they reached the civil hospital at about 7.40 AM. Therefore, from 7.40 AM till 8.10 AM, the prosecution has 30 minutes of time for the purposes of recording of dying declaration of Bikar Singh and that of police action thereon. The timings in the documents on record seems to be natural. ASI Ajmer Singh (PW- 19) has deposed that they reached the civil hospital at about 7.40 AM. Therefore, from 7.40 AM till 8.10 AM, the prosecution has 30 minutes of time for the purposes of recording of dying declaration of Bikar Singh and that of police action thereon. The timings in the documents on record seems to be natural. The time given by the witnesses orally is by approximation and there can be some variation in the comprehension of a witness, although even oral evidence of time is in tune with prosecution story. Dr. Amarjit Singh (PW-1) has given his opinion in respect of condition of patient, who has received injury 5cm deep into the brain. The statement is that possibility of injured unable to make statement about half an hour after the injuries, could not be ruled out. It is only a possibility. Such opinion is not conclusive, when the prosecution has produced direct eye-witnesses account. On the other hand, Dr. Jasdev Singh (PW-2), who attended Bikar Singh, has deposed that he was satisfied about the fitness of the patient and that Bikar Singh has admitted the statement to be correct and thumb marked the same, in his presence. It is the same Doctor, who has declared Nirbhai Singh as unfit to make statement on the same day and almost at the same time. There is nothing to suggest that why he should give a false declaration. Still further, the witness has given endorsement Ex. PG/1 that the statement was given by Bikar Singh. Therefore, the statement of Dr. Jasdev Singh (PW-2), who treated the patient at the first instance will prevail over the opinion of Dr. Amarjit Singh (PW-1), who has conducted post-mortem. 12. In Khushal Rao Vs. State of Bombay, 1958 SCR 552, 559, it was held that the statement made by a dying person as to the cause of death, has been accorded by the legislature, a special sanctity which should, on first principles, be respected unless there is clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that such circumstance would affect the admissibility of the statement, but only its weight. It has been held that there is no absolute rule of law or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction. The Honble Court held the following principles in respect of dying declarations : (1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) That in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Keeping in view the aforesaid tests, the statement made by Bikar Singh is truthful version, in respect of the circumstances of the death. Keeping in view the aforesaid tests, the statement made by Bikar Singh is truthful version, in respect of the circumstances of the death. It was made soon after the incident, giving the background of the occurrence as well as manner of assault. Statement is completed at 8.10 AM i. e. within 70 minutes of occurrence. There was hardly any scope of introduction of witnesses and to propound any story. In fact, the defence version advances the time of occurrence to 5.00 AM or so. Therefore, we do not find any infirmity in the dying declaration, Ex. PRR, of Bikar Singh. Learned counsel for the appellant has relied upon the statement of Harmel Singh (PW-9) in support of his argument that Bikar Singh has died in Civil Hospital, machhiwara alone, when he deposed that he received the information about the death of Bikar Singh at about 8.30 AM and his body was brought to the Police station, Machhiwara at about 8.30 AM. There is voluminous evidence in respect of movement of Bikar Singh from Civil Hospital, Machhiwara. SI Balbir Singh (PW-14) has deposed that he received wireless message about the death of Bikar singh, when he was present at the place of occurrence. ASI Ajmer Singh (PW-19)has deposed that he was present at the spot alongwith SI Balbir Singh, when they received the information regarding death of Bikar Singh. He reached village Kohara, where he prepared inquest report (Ex. PC ). Swaran Singh and gurdev Singh have identified the dead body. The dead body was sent to Civil hospital, Samrala for post-mortem examination alongwith C. Naurang Singh. It has also come in his testimony that village Kohara is at a distance of 20 km from Police Station Machhiwara. The dead body of Bikar Singh was brought to civil Hospital, Samrala at about 12.30 PM, directly from village Kohara. He has stated that the dead body was never taken to Machhiwara nor Machhiwara falls on the way. Swaran Singh (PW-6), uncle of Nirbhai Singh, identified the dead body of Bikar Singh after Nirbhai Singh was got admitted in Dayanand Medical college, Ludhiana. Saudagar Singh (PW-12) has deposed that Bikar Singh and nirbhai Singh were rushed to Ludhiana in two separate cars. Swaran Singh (PW-6), uncle of Nirbhai Singh, identified the dead body of Bikar Singh after Nirbhai Singh was got admitted in Dayanand Medical college, Ludhiana. Saudagar Singh (PW-12) has deposed that Bikar Singh and nirbhai Singh were rushed to Ludhiana in two separate cars. He, his father gurdev Singh and PW Swaran Singh took Bikar Singh in a car to Ludhiana and that he succumbed to the injuries near village Kohara, on the way to Hospital. He has also deposed that Bikar Singh or his dead body was not brought to the police Station Machhiwara at any stage. Thus, the statement of Harmel Singh about the dead body of Bikar Singh having brought to the Police Station Machhiwara is minor contradiction and is inconsequential and cannot over ride the voluminous evidence of movement of bikar Singh from Civil Hospital, Machhiwara. The witnesses, who have identified the dead body are Gurdev Singh, grand-father of deceased Bikar Singh and Swaran singh, uncle of Nirbhai singh. The statement of Swaran Singh that he identified the dead body in the evening is of no help to the appellant, as duly signed inquest of Swaran Singh was available with Dr. Amarjit Singh (PW- 1) at about 2.30 PM for the post-mortem performed at 3.00 PM. It is well- settled that man may lie, but the circumstances do not. Therefore, the statement of Swaran Singh that it was in the evening of 24.6.1998, when he identified the dead body, seems to be only a case of mistake in respect of signing of the inquest report. It is a minor contradiction, which does not effect the case of the prosecution, as a result of time lapse between occurrence and statements. 13. Learned counsel for the appellant has vehemently argued that the dead body of Bikar Singh has been identified by Swaran Singh and Gurdev Singh and such inquest report does not disclose the manner of occurrence or that the appellant was the assailant. Since the manner of occurrence and the assailant and the fact that Harmel Singh and Swaran Singh are the witnesses have not been disclosed in the inquest report, therefore, the prosecution has set up a case, which contradicts the stand of the prosecution as alleged. 14. We do not find any merit in the said argument. The inquest report is prepared under Sec.174 Cr. 14. We do not find any merit in the said argument. The inquest report is prepared under Sec.174 Cr. P. C. Such report is prepared to ascertain, whether a person has died under suspicious circumstances and if so, what is apparent cause of death. The detail, as to how the deceased was assaulted and who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of proceedings under Sec.174 Cr. P. C. In Pandurang Vs. State of Hyderabad 1955 SC 216, it was held that the inquest report is admissible under Sec.145 of the evidence Act. It was held to the following effect : "20. The injuries shown in the inquest report and the post- mortem report do not tally. It is questionable how far an inquest report is admissible except under Sec.145 of the Evidence Act but we do not regard the difference as of value so far as the appellants are concerned; at best it could only have helped Tukaram and Nilla who have not appealed. " In Pedda Narayana Vs. State of A. P.1975 SC 1252, the Court delineated the scope of Sec.174 Cr. P. C. and it was held to the following effect : "11. A perusal of this provision would clearly show that the object of the proceedings under Sec.174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Sec.174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. " 15. Later in a judgment reported as Radha Mohan Singh Vs. State of U. P. (2006) 2 scc 450, three Judges Bench has held to the following effect : "14. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under Sec.174 is limited in scope and is confined to the ascertainment of the apparent cause of death. State of U. P. (2006) 2 scc 450, three Judges Bench has held to the following effect : "14. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under Sec.174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under section 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Sec.174. Neither in practice nor in law is it necessary for the person holding the inquest to mentioned all these details. " In the aforesaid judgment, the Court has referred to Eqbal Baig Vs. State of A. P. AIR 1987 SC 923 and Shakila Khader Vs. Nausheer Cama AIR 1975 SC 1324 and held that not mentioning of names of eye- witnesses in the inquest report could not be a ground to reject their testimonies. Similarly the absence of the name of the accused in the inquest report cannot lead to infer that he was not present at the time of the commission of offence. Therefore, we do not find that there is any material contradiction in the prosecution case in respect of death of Bikar singh and the manner in which he died. 16 Nirbhai Singh, the other injured was found to be medically unfit to give statement on 24.6.1998, as he was stated to be unconscious. He was referred to Civil Hospital, Ludhiana, but was admitted in Dayanand Medical college, Ludhiana. Dr. Bharat Rattan (PW-15) has deposed on the basis of case history that Nirbhai Singh was admitted in the hospital at 9.34 AM and that the patient was conscious on 25.6.1998 and that a conscious person is ordinarily fit to make statement. Dr. He was referred to Civil Hospital, Ludhiana, but was admitted in Dayanand Medical college, Ludhiana. Dr. Bharat Rattan (PW-15) has deposed on the basis of case history that Nirbhai Singh was admitted in the hospital at 9.34 AM and that the patient was conscious on 25.6.1998 and that a conscious person is ordinarily fit to make statement. Dr. K. S. Kular (PW-10) has deposed that Nirbhai Singh was fit to make statement on 25.6.1998. The fact is that such statement is not endorsed to be correct by the Doctor nor the same is purportedly made in the presence of the Doctor. The alleged dying declaration (Ex. PW13/a) of Nirbhai Singh is a statement recorded by the prosecution under Sec.161 of the Cr. P. C. Such statement is not signed by nirbhai Singh and does not satisfy the requirement contemplated by law, to treat such statement as that of a dying declaration, therefore, such statement cannot be relied upon. 17. Another argument raised by the learned counsel for the appellant is that in double barrel gun, the empties are not ejaculated, unless the bullets are sought to be loaded. Therefore, in the absence of any evidence of reloading of such double barrel gun, recovery of empties from the spot shows the falsehood in the case of the prosecution case. The said argument is again not tenable for the reason that it is admitted case of the appellant that he fired one shot. As per the report of Forensic Science Laboratory (Ex. PZ/2), one shot each has been fired from the left and right barrel of the licenced gun of the appellant. It may be noticed that recovery memo of possession of aforesaid double barrel gun (Ex. PR), shows that it was loaded with two live cartridges. On unloading the same, two cartridges 12 bore live were recovered. Therefore, lack of evidence of reloading of double barrel gun on the part of the prosecution is of no consequence, as both the bullets are proved to be fired from the licenced gun of the appellant. 18. Another argument advanced by the learned counsel for the appellant is that the Investigating Officer has not noticed the scooters parked outside the house of the appellant, as deposed by the prosecution witnesses. Therefore, it belies the prosecution case. We do not find any merit in the said argument as well. 18. Another argument advanced by the learned counsel for the appellant is that the Investigating Officer has not noticed the scooters parked outside the house of the appellant, as deposed by the prosecution witnesses. Therefore, it belies the prosecution case. We do not find any merit in the said argument as well. The scooters were not involved in the commission of crime. Therefore, the fact that the Investigating Officer has not noticed the scooters parked outside the house of the appellant is immaterial. 19. On the other hand, learned State counsel has argued that the appellant has set up a case of self-defence. It is contended that in terms of section 105 of the Evidence Act, 1872 , the burden of proving the existing circumstances to bring the case within any of the exceptions in the Indian penal Code, is on the accused. It is contended that from the cross- examination of the prosecution witnesses, statement of the accused and his wife Sukhbir kaur (DW-1), it is apparent that the defence has termed the deceased as the aggressors, as Bikar Singh is alleged to be armed with Kulhari. Kulhari has not been recovered at the spot of occurrence nor there is any evidence of use of kulhari. The appellant or his wife has not received any injury. None of the independent witnesses from the residential locality, in which the appellant is residing has been examined. Sukhbir Kaur (DW-1), has stated that both the deceased have evil eye on her, but they did not tease her on any earlier day. Still further, in her examination- in-chief, she has deposed that she has entered the living portion of the house and bolted the shutter from inside, when she heard a fire shot in the court- yard of her house. Therefore, to say that the deceased have intention to harm wife of the appellant is not tenable, as before the firing of gun shot, the wife of the appellant has secured herself. It is, thus, apparent that having secured herself, the right of private defence does not empower the appellant to inflict more harm than it is necessary to inflict for the purposes of defence. Nirbhai Singh was un-armed, even as per the defence version, whereas Bikar Singh is not proved to be possessed of Kulhari. It is, thus, apparent that having secured herself, the right of private defence does not empower the appellant to inflict more harm than it is necessary to inflict for the purposes of defence. Nirbhai Singh was un-armed, even as per the defence version, whereas Bikar Singh is not proved to be possessed of Kulhari. The pallets have hit bikar Singh on the left upper portion of the body, which shows that the bullets were fired to cause, not for the purpose of defence, as the victims are proved to be un-armed. 20. Thus, we are of the opinion that the appellant has failed to discharge the burden as envisaged under Sec.105 of the Evidence Act, 1872 . Therefore, firing two gun shots at two un-armed persons is in excess of right of private defence. 21. In view of the above, we do not find any merit in the present appeal. The same is dismissed.