JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—This appeal has been filed by the appellant/accused against the conviction and sentence dated 6.3.2010 passed in ST No. 39 of 2003 (State v. Rajneesh Dwivedi and others) by Additional District & Sessions Judge, Court No. 4, Jhansi (hereinafter referred to as the ASJ). 2. Accused Rajneesh Dwivedi (the appellant) was put up on trial by the ASJ in ST No. 39 of 2003 for being charged with committing offence under Section 302 and 307 IPC. Co-accused Sahwan alias Chootu and Santoo alias Santosh Kumnar were also put on trial by the aforesaid Court under Sections 302 and 307 read with Section 34 of IPC and Section 25 read with Section 4 of the Arms Act respectively. Accused Sahwan alias Chhotu and Santoo alias Santosh Sharma were acquitted of charges levelled against them vide judgment dated 5.3.2010. The appellant Rajneesh Dwivedi was found guilty of committing offence under Section 302 and 326 IPC and he was sentenced to undergo imprisonment for life and fine of Rs. 10,000/-. In default, he was ordered to undergo simple imprisonment and he was further sentenced to undergo imprisonment for three years and fine of Rs. 5,000/- was imposed for offence punishable under Section 326 IPC. In default, he was directed to undergo imprisonment for one and half months. All the sentences were to run concurrently. 3. The allegations unfolded in the FIR are that the sister of the informant Smt. Atlesh Srivas was working in Nehru Yuva Kendra, Ashik Chauraha, Jhansi where the the appellant Rajneesh Dwievedi was also working. About one month prior to the incident, the appellant/accused eve teased Smt. Atlesh Srivas on which she slapped him and also made a complaint about this incident to the officer of Nehru Yuva Kendra where she was working. Due to this Rajneesh Dwivedi was inimical with the sister and brother-in-law of the informant. On 7.1.2003, brother-in-law of the informant was going on his motorcycle and his wife Smt. Atlesh Srivas was sitting behind him. They were returning to their home from the house of her uncle Sri Dhaniram Verma and they were followed by the informant Arvind Kumar Srivas alongwith the younger brother of the deceased Arvind who was pillion rider of his motorcycle. They were returning to their home from the house of her uncle Sri Dhaniram Verma and they were followed by the informant Arvind Kumar Srivas alongwith the younger brother of the deceased Arvind who was pillion rider of his motorcycle. As soon as the deceased reached near Central School No. 3 about 9pm, all the accused persons came by Boxer motorcycle which was being driven by Santosh Sharma. The accused persons stopped their motorcycle and also stopped the motorcycle of Sachin Kumar Srivas and the appellant fired at them with intention to kill them. The shot hit Sachin Kumar Srivas in his stomach and on the hand of Smt. Atlesh Srivas. Both Sachin and his wife Smt. Atlesh fell down on the spot and the appellant and his companions fled on motorcycle. This occurrence was witnessed by the informant Arvind Kumar Srivas, brother of Smt. Atlesh and Arvind brother of deceased and passers-by. On raising alarm one Jitendra and others came to the spot and carried Sachin Kumar Srivas and Smt. Atlesh to the medical college and report was lodged. 4. Arvind Kumar Srivas (PW-1) who is the informant and brother-in-law (Sala of the Deceased) has lodged the FIR, Smt. Atlesh Srivas (PW-2) is injured eye-witness, wife of the deceased. Dr. Pratap Singh (PW-3), conducted the autopsy on the body of the deceased Sachin Kumar Srivas and proved the post-mortem report. Doctor found the following ante-mortem injuries on the body of the deceased. Ante-mortem Injuries: 1. Stiched wound 21 cm inlength having 13 stitches vertical in direction over abdomen 8 cms below xiphisternum. 2. Stitched wound 9 stitches in circle over left side abdomen 12 cms below left nipple as 5.30 O’clock position colostomy wound 6 cms x 6 cms over inverted margins. 3. Colostomy wound 4 cms x 2 cms in size on right iliac fossa with three stiches 4 cms inner and above right iliac fissa with three stitches 4 cm Inner & above right iliac superior spring. 4. Lacerated would 3 cms x 3 cms x collor deep size (would of exit) on right side of waist (right aspect of abdomen) 5 cms above right iliac crest everted margins. Blackening and tattooing present colour of abrasion present (Exit wound). 5. Dr. 4. Lacerated would 3 cms x 3 cms x collor deep size (would of exit) on right side of waist (right aspect of abdomen) 5 cms above right iliac crest everted margins. Blackening and tattooing present colour of abrasion present (Exit wound). 5. Dr. RN Pandey (PW-4) has examined the deceased Sachin when he was injured who lateron succumbed to his injury and he also examined Smt. Atlesh (PW-2) and proved his medical report. Sri RN Pandey found following injuries on the body of Sachin and Smt. Atlesh. Injury report of Sachin. 1(a). Lacerated wound of 10cm diameter size, inverted margin over left side of hypochondrial region form which the blood oozing +ve Depth kept under observation to be ascertained by the surgery dt. Concern on O.T. Or as suitable. The collor of abrasion +ve. (b) Lacerated would of 2 cm diameter size everted margins over right side super iliac lateral wall of the abdomen from which the blood oozing +ev. Depth kept under observation to ascertained by the surgery dt. Concern in O.T. Or as suitable. The abdominal tissues protruding out of the wound. 1 a & b kept under observation and x-ray advised and referred to surgery dt (Dpartment) concern for further needful. Inference - The injury No. 1 a & b are caused by fire-arm object Nature keep under observation advice X-Ray and referred to OT surgery dt. Concerned for further needful of about fresh in duration. Injury Report of Smt. Atlesh. 1(a) lacerated would 1 cm diameter size with inverted margins x depth of the would kept under observation to be ascertained by the ortho. dt. Concern in O.T. Or as suitable over posterior/lateral aspect upper 1/3 region of the right upper arm from which blood oozing +ve. (b) Lacerated would of 1.5 cm diameter size with everted margins over anterior lateral aspect middle 1/3 region of the right upper arm from which the blood oozing +ve. The depth of the wound to be ascertained by the ortho. Concern in OT or as suitable. (a) & (b) Kept under observation. Advised x-ray and referred to the orthopedic dt. For further need full. Inference - Injury No. 1 a and b are caused by fire-arm object Nature keep under observation advice X-ray of about fresh in duration.” 6. The depth of the wound to be ascertained by the ortho. Concern in OT or as suitable. (a) & (b) Kept under observation. Advised x-ray and referred to the orthopedic dt. For further need full. Inference - Injury No. 1 a and b are caused by fire-arm object Nature keep under observation advice X-ray of about fresh in duration.” 6. The Doctor found that death of Sachin occurred due to ante-mortem gun shot injuries and the deceased suffered death due to shock and brain haemorrhage as a result of ante-mortem gun injuries. 7. Sri Vijay Bahadur (PW-5), who was posted as Additional City Magistrate on 8.1.2003 has recorded the dying declaration of injured Sachin Kumar Srivas on 8.1.2003 at about 4:45 p.m. at Medical College, Jhansi. He has stated that the injured was examined by Dr. RN Pandey (PW-4), who has stated that injured was competent to give his statement, his statement was recorded after inquiry about his name and parentage etc. He has further stated that one passer-by got him admitted in the hospital. He is not inimical to anybody. Sri Anil Kumar Agarwal, Sub Inspector (PW-6) in whose presence the case under Section 307 IPC was registered and to whom initial investigation was entrusted. He took the statement of complainant and eye-witness, the injured Sachin Kumar Srivas was also interrogated by the Investigating Officer. He further inspected the place of occurrence and prepared the sketch map marked as Ex-Ka-6 and arrested the accused Santosh Sharma and Chootu alias Sahwan Ali on the information of the informant and recovered country made pistol used in the offence alongwith empty cartridges and live cartridge from the possession of Santosh Sharma and one illegal knife from the possession of Sahwan and further the motorcycle bearing No. UP 93 R 1380 (Boxer) from the possession of Santosh Sharma which was said to have been used in commission of the crime. This witness further prepared memo of recovery. He was further informed about the death of the injured Sachin Kumar Srivas. He reached mortuary to prepare inquest report and copied the inquest report in the case diary and proved it as Ex-ka-9 and converted the case into one under Section 302 IPC. He further proved the material exhibits in Court. 8. This witness further prepared memo of recovery. He was further informed about the death of the injured Sachin Kumar Srivas. He reached mortuary to prepare inquest report and copied the inquest report in the case diary and proved it as Ex-ka-9 and converted the case into one under Section 302 IPC. He further proved the material exhibits in Court. 8. Sub-Inspector, Sri Ram Milan Soni (PW-7) initially registered case under Section 307 IPC, prepared the chick report and proved it as Ex-Kha-16 and proved copy of the Ex-Ka-17. Head Constable Sri Daya Shankar Dwivedi (PW-8) has given evidence regarding the case of Santosh Sharma registered under Section 25 Arms Act. Constable Sri Dinesh Chand (PW-9) has given evidence regarding the arrest of non applicant Chhotu alias Sahwan Ali and Santosh Sharma and recovery of country made pistol alongwith live and empty cartridges, motorcycle No. UP 93 1360 and an illegal knife. Likewise Sub Inspector Sri Fateh Bahadur Singh (PW-10) submitted charge-sheet against non applicant Sahwan under Section 4 Arms Act. Constable Sri Shiv Charan Singh (PW-11) has proved the charge-sheet submitted against non appellant Rajneesh Dwivedi. 9. The defence of the accused person was that they have falsely been implicated in the matter. They have nothing to do with the offence. Accused Sahwan stated that a false recovery has been shown against him and the accused Santosh Sharma also has denied the occurrence and has said that no investigation has been done and he was called from his house and implicated falsely in this case. 10. Dr. Vikas Singh (DW-1) was examined on behalf of the defence to prove certain submissions written in on the bed head ticket of the injured lateron deceased. Sri Sanjev Sharma(DW-2), his brother who has tried to prove that the accused Santosh Sharma was lifted by the police and was falsely implicated. Thus prosecution has examined total 11 witness and 2 defence witnesses were examined. 11. Learned Trial Court after considering the evidence of both the prosecution and the defence held that charge against accused Rajneesh Dwivedi under Section 302 and 326 IPC stood proved and acquitted the remaining accused persons, by giving benefit of doubt. Conviction of the appellant Rajneesh Dwivedi resulted into institution of the present appeal. 12. We have heard Sri Gopal Swaroop Chaturvedi, Senior Advocate, learned counsel for the appellant and Sri Vimlendu Tripathi, the learned AGA for the State. 13. Conviction of the appellant Rajneesh Dwivedi resulted into institution of the present appeal. 12. We have heard Sri Gopal Swaroop Chaturvedi, Senior Advocate, learned counsel for the appellant and Sri Vimlendu Tripathi, the learned AGA for the State. 13. To start with as far as motive is concerned, the defence could not show why the appellant was falsely implicated, although an unsuccessful attempt has been made by the defence to show that wife of the deceased Smt. Atlesh was friendly to the appellant. As far as motive for the accused committing offence is concerned, it has come on record that accused eve-teased Smt. Atlesh on which Smt. Atlesh slapped him and reported the matter to her higher authorities, on which, being displeased, the appellant committed offence. As far as motive is concerned, in case of direct evidence motive loses its value. A bare perusal of the FIR shows that motive has been mentioned in the FIR and even in oral evidence. For this perusal of the statement Arvind Kumar Srivas (PW-1) and Smt. Atlesh (PW-2) has to be looked into. Smt. Atlesh has stated in her statement that the appellant was also serving at Nehru Yuva Kendra and he had eve-teased her, on which, she got irritated and slapped the appellant and also complaind about the matter to higher authorities. She has been cross-examined on this point in which she has stated that she could not tell the date when she was eve-teased nor the name of the officer to whom she has complained. She has further stated that neither did she report this matter to the police nor informed this matter to her husband but she told her parents about this matter. 14. It has come in evidence that this occurrence took place about one month prior to the date of marriage. The date of marriage of Smt. Atlesh and the deceased is said to be 13.12.2002. Hence the view of the Court is that if the incident of eve-teasing was not reported to the deceased it would not have made much difference as Smt. Atlesh was recently married to the deceased who would have wanted her marriage to run smoothly. As far as statement of Arvind Kumar Srivas (PW-1) is concerned, he has stated that the deceased was married to his sister on 13.12.2002, but he does not remember the date when his sister was eve-teased. As far as statement of Arvind Kumar Srivas (PW-1) is concerned, he has stated that the deceased was married to his sister on 13.12.2002, but he does not remember the date when his sister was eve-teased. Even otherwise the evidence of this witness is not direct on the point of eve-teasing, but the motive has been established by the prosecution. 15. As far as evidence of witnesses is concerned, it has been argued on behalf of the appellant that all the prosecution witnesses have narrated different stories and all the witnesses are not reliable. Dying declaration of Sachin was recorded on 8.1.2003 which began at 4:45 pm and concluded on 5:05pm and another statement was recorded by the Investigation Officer (I.O) which is also said to be dying declaration on the same date. A perusal of the statement of Sri Anil Kumar Agarwal, Sub Inspector (PW-6) goes to show that he did not remember when he recorded the statement of the deceased Sachin. He was not at all in the knowledge as to whether any Magistrate has recorded statement of the deceased Sachin. Right here it has been argued that any lapse on the part of the I.O., could not result in acquittal of the deceased. In support of the preposition prosecution has placed reliance upon Sunil Kundu v. State of Jharkhand, 2013 Crl LJ 2339 (SC). 16. Reverting back to the dying declaration, it has been argued by the learned AGA that conviction on basis of dying declaration alone is sufficient. In support he has placed reliance upon Subhash Soni and another v. State of Madhya Pradesh, (2009) 3 SC 9Crl) 291; Shakuntala (Smt.) v. State of Haryana, (2007) 10 SCC 168 ; Sham Shankar Kankaria v. State of Maharashtra, (2006) 13 SCC 165; Laxman v. State of Maharashtra, 2002 SCC (Crl) 1491. 17. Admittedly, the statement of the injured before his death was recorded by Additional City Magistrate, Jhansi (the ACM) and the statement under Section 161 was recorded by the I.O. The question which props up now is as to which dying declaration should be relied upon, reason being that both the dying declarations do not totally tally each other. It cannot be said that dying declarations are contrary to to each other but some facts are definitely wanting in the dying declaration recorded by the ACM. It cannot be said that dying declarations are contrary to to each other but some facts are definitely wanting in the dying declaration recorded by the ACM. It is well-settled law that evidentiary value of the dying declaration is sufficient by itself. The corroboration is not essential if dying declaration is truthful and trustworthy. Hon’ble Apex Court has laiddown law that if the Court is satisfied with the dying declaration that same has been voluntarily made by the deceased, it can be relied upon without any corroboration. 18. The dying declaration recorded by the competent Magistrate would stand on much better footing then the declaration recorded by the police officer for the bare reason that the Magistrate has no axe to grind against the accused named in the dying declaration of the victim but this has to be looked into alongwith the other circumstances. 19. A perusal of the dying declaration recorded by the ACM shows that dying declaration was recorded by the ACM in the medical college. Prior to and after completion of the statement, the deceased was certified by the Doctor to be in a fit mental and physical condition to make declaration tutoring or prompting was not suggested by the defence. The Hon’ble Apex Court has held that evidentiary value of the evidence recorded by the Magistrate is much more reliable/credible than recorded by a police officer. Dying declaration under Section 32 is an exception to the general rule reflected in Section 60 of the Evidence Act which enacts that oral evidence in all cases must be direct. Hence we find that the dying declaration recorded by the Magistrate i.e. ACM has more substantive value of evidence. Hence in view of what has been stated above, dying declaration recorded by ACM inspires confidence. In the dying declaration the deponent has stated that the appellant came from behind and said that they had taken ‘Panga’ with Rajneesh, “I shoot you”. The shooter has mentioned his name to be Rajneesh Dwivedi. The deponent has further stated that he did not know Rajneesh Dwivedi. The shooter was driving motorcycle. He has further stated that his wife also does not recognise the culprits. It is vehemently argued by the counsel for the appellant that no culprit would commit an offence openly and tell his name too. The deponent has further stated that he did not know Rajneesh Dwivedi. The shooter was driving motorcycle. He has further stated that his wife also does not recognise the culprits. It is vehemently argued by the counsel for the appellant that no culprit would commit an offence openly and tell his name too. This argument does not find favour with the Court because there are some persons who pose themselves to be very daring and intend to give clear message as to why incident is taking place. 20. Here we would like to connect the statement of the deceased with the statement given by Smt. Atlesh who had said that she did not tell the name of Rajneesh Dwievdi to her husband at the time of the incident because the appellant himself told his name while he was opening fire at the deceased. 21. Thus there is corroboration of the dying declaration with the statement given by eye/injured witness. As far as evidence of Smt. Atlesh is concerned, she is an injured witness who has sustained gun shot injury and her presence at the spot cannot be disputed. Since Smt. Atlesh was newly married to the deceased, there was possibility that she could have concealed the eve-teasing incident to avoid any misunderstanding between husband and wife. A lot of arguments have been advanced as to the place from where the deceased and the injured were returning whether it was from Jarmani Hospital or from their Uncle’s House namely Sri Dhani Ram. 22. Smt. Atlesh (PW-2) has stated that she was returning from Jarmani Hospital from where she went to her uncle’s House Sri Dhaniram, whereas in the dying declaration returning from Jarmani Hospital has been stated. 23. We think some minute details are wanting in the dying declaration but they are not fatal to the prosecution. 24. The Statement of Smt. Atlesh was criticised by the counsel for the appellant on the ground of her conduct after the incident and that she has stated that she knew Chhotu Alias Sahwan and Santosh prior to the incident because they used to come to meet the appellant at the office of Nahru Yuva Kendra and their names were mentioned in the visitor’s register which used to be destroyed by end of each day. 25. 25. In this regard, learned AGA has argued that exaggerations and embellishment in the prosecution case are bound to occur and human behaviour is not fixed nor any straight jacket formula can be prescribed and it is the duty of the Court to separate grain from the chaff as had been laid down in Manjit Singh and others v. State of Punjab and otehrs, 2013 (11) Scale 394; Yogendra @ Yogesh and others v. State of Rajasthan, 2013 Crl J 3239 SC; Dalbir Singh v. State of Haryana, 2008 CrlJ 3061 SC. 26. It seems to us that both these statements of the eye-witnesses are in consonance with the dying declaration of the deceased who has also said that the appellant got down from the motorcycle and opened fire at him. No doubt there are minor discrepancies in the statement of the eye-witnesses as to whether miscreants came from opposite direction or from the back but the Court thinks that minor discrepancy and variance are bound to occur in natural and trustworthy witnesses but in pith and substance statement of injured wife and dying declaration of deceased qua the role of appellant is one and the same and there is no disparity on the said score. Nothing has been brought on record from the side of the appellant, as to why husband and wife separately and independently have nailed the appellant. There is no reason for them to leave the real assailant. The statement of deceased in dying declaration and statement of injured cumulatively taken reinforces the conclusion of guilt of accused appellant. Counsel for the appellant has also submitted that benefit of discrepancy in the statement of eye-witness could be given to the appellant. In reply the learned AGA while placing reliance upon State of Punjab v. Jagir Singh, AIR 1973 (SC) 2407 ; has contended that the appellant could not be acquitted merely on conjunctures. 27. Another discrepancy pointed out by the counsel for the appellant is that the statement of all the witnesses did not tally on the point whether the deceased and the injured were taken to Civil Hospital initially and then they were referred to the Medical College, where they got treatment. He has further criticised the statement of eye-witness on the fact that they are not sure that they went by two seater or tempo to the medical college. 28. He has further criticised the statement of eye-witness on the fact that they are not sure that they went by two seater or tempo to the medical college. 28. An argument has been advanced on behalf of the appellant that there is evidence to show that the deceased was referred to Medical College, Jhansi and the story of going to Civil Hospital and then to the medical college has been concocted by the prosecution to build up the prosecution case. In this regard, reference to the statement of DW-1 is important. Perusal of the record shows that the case sheet is on record, in which it has been mentioned that the injured sustained gun shot injuries and it has also been mentioned that one Jitendra brought the injured to the hospital. A perusal of the discharge summary says that in the clinic note, it has been mentioned that the injured was brought by relatives although in the alleged history it has been written that the injured was shot by some unknown persons. As regard this endorsement is concerned, DW-1 has said that he was told by the injured and his family members that some unknown persons shot him. In cross-examination, this witness has said that he prepared the note after talking to the injured and has admitted that the word ‘relatives’ also find place in the clinical note. A bare perusal of the record also says that patient was already managed at the hospital and the ACM was summoned to record dying declaration. Further, perusal of clinic note says that the patient was taken to Civil Hospital, Jhansi and lateron referred to MLB Medical College, Jhansi. Thus the story as narrated by the witness that initially injured was taken to Civil Hospital and lateron referred to said medical college is corroborated by the documentary evidence available on record. 29. It has come on evidence that Smt. Atlesh, wife of the Deceased was holding her husband from his back and the seat of the injuries of the deceased couple with that of the seat of the injuries of the accused if seen together go to show that medical evidence is supportive to the ocular evidence. As far as evidence of the I.O is concerned, it is well-settled law that lapse on the part of the I.O do not come to rescue of the accused if the case is otherwise proved. As far as evidence of the I.O is concerned, it is well-settled law that lapse on the part of the I.O do not come to rescue of the accused if the case is otherwise proved. Because a dead man cannot come out and say to the I.O why are you spoiling my case. The statement of I.O. Sri Anil Kumar Agarwal (PW-6) reflects that he has expressed ignorance to the recording of dying declaration by ACM and has not at all bothered to know whether any dying declaration was recorded or not. He did not record the statement of Sri Jitendra who took the injured/deceased to the Hospital. He did not bother to proceed to the spot at once but all these shortcomings do not entitle the applicant for acquittal. Further testimony of Smt. Atlesh is clear and reliable and there is no contradiction vis-a-vis the evidence on record, and only because she is wife of the deceased, her evidence cannot be thrown out but, in fact, evidence has to be read with completion caution, and here in the present case with complete caution evidence has been examined. Thus what has been said and discussed above same leads to irresistible conclusion that learned Trial Court has rightly convicted the appellant. 30. In view of above, we come to the conclusion that the appellant is guilty under Section 302 IPC and under Section 326 IPC. The appeal against the judgement and order dated 6.3.2010 passed in ST No. 39 of 2003 (State v. Rajneesh Dwivedi and others) by Additional District & Sessions Judge, Court No. 4, Jhansi is liable to be dismissed. It is accordingly dismissed. —————