JUDGMENT : (Delivered by Hon'ble Krishna Pratap Singh,J.) 1. Heard Sri Narayan Singh Kushwaha, Sri Dileep Kumar and Sri Rajrshi Gupta learned counsel for the appellant and Sri Virendra Pratap Yadav, learned A.G.A. for the State. 2. The present criminal appeal has been preferred by the appellant-accused Jai Singh against the judgment and order dated 17.02.1986 passed by the IXth Additional Sessions Judge, Etah in Session Trial No. 122 of 1985 arising out of Criminal Case Crime No. 19 of 1984 (State vs. Jai Singh), under Section 302 Indian Penal Code, Police Station Baghwala, District Etah. The appellant-accused Jai Singh has been convicted under Section 302 I.P.C. and he was sentenced with imprisonment for life. 3. Briefly the facts of the case are as under:- 4. The first information report of the present case was lodged on 02.02.1984 at about 9:00 A.M. at Police Station Baghwala, District Etah, under Section 307 I.P.C. regarding an incident which is said to have taken place on 02.02.1984 at about 6:00 A.M. in village Banehra, District Etah situated at a distance of about three miles towards East from the police station. 5. The informant Ram Avtar son of Kishor Singh Thakur PW-1 is resident of village Banehra. On 02.02.1984 at around 6:00 A.M.- 8:00 A.M. his cousin brother deceased Gajraj Singh son of Sarnan Singh was standing at the door. The appellant-accused Jai Singh son of Gokul Singh shot fire from his illegal country made pistol from the roof-top which hit Gajraj Singh on his neck. The deceased Gajraj Singh fell down on the ground. As soon as the deceased fell down informant Ram Avtar PW-1 fled away from the spot. Informant Ram Avtar PW-1 went to inform the police station. He got a report Exhibit Ka-1 written by one Ram Abhilash Singh given by him to the police station. The present case was initially registered under Section 307 I.P.C. at Police Station Baghwala, District Etah. On the basis of written report Exhibit Ka-1 Head Moharir Om Prakash PW-5 had prepared chik FIR Exhibit Ka-7, G.D. entry Exhibit Ka-8 and Tarmimi G.D. Exhibit Ka-9 was also prepared by him on 12.02.1984. 6. After the registration of the case the investigation of the matter was taken over by police Sub-Inspector Phool Singh PW-9. On the basis of written report Exhibit Ka-1 Head Moharir Om Prakash PW-5 had prepared chik FIR Exhibit Ka-7, G.D. entry Exhibit Ka-8 and Tarmimi G.D. Exhibit Ka-9 was also prepared by him on 12.02.1984. 6. After the registration of the case the investigation of the matter was taken over by police Sub-Inspector Phool Singh PW-9. Investigating Officer recorded the statement of Constable Om Prakash PW-5 and informant Ram Avtar PW-1 at the police station and reached the spot on the same day and recorded the statement of deceased Gajraj Singh, under Section 161 Cr.P.C. Exhibit Ka-15. The Investigating Officer also prepared the Mazroobi Chitthi Exhibit Ka-16 and send the injured Gajraj Singh to the hospital for medical examination. Investigating Officer also recorded the statement of widow of the deceased Smt. Vimla PW-3 and Natthu Singh and on their pointing he sketched the site plan Exhibit Ka-17. On 14.02.1984 Investigating Officer recorded the statement of Rajbir Singh and Brijraj Singh. On 16.02.1984 Investigating Officer recorded the statement of appellant-accused Gajraj Singh in District Jail Etah. On 19.02.1984 Investigating Officer recorded the statement of Ram Das and Suresh. On 11.03.1984 he also recorded the statement of informant Ram Avtar PW-1 and Suresh Singh. After completing the investigation the charge-sheet Exhibit Ka-18 was filed against the appellant-accused Jai Singh. 7. On 09.02.1984 Sub-Inspector Chandrapal Verma PW-4 receiving information of death of Gajraj Singh from Shri Sallan Surgical Ward, S.N. Medical College Agra he went with Constable 1987 Om Prakash to the mortuary S.N. Medical College, Agra and prepared inquest report Exhibit Ka-2. He also prepared photo lash, challan lash, letter to C.M.O. and letter to R.I. Exhibit Ka-3 to Exhibit Ka-6 and send the dead body through Constable 1987 Om Prakash for postmortem examination. Sub-Inspector Chandrapal Verma PW-4 has stated that the dead body of the deceased Gajraj Singh was not kept in sealed cover because the dead body was kept in mortuary which was situated nearby. 8. The deceased Jai Singh was medically examined on 02.02.1984 at about 11:15 A.M. by Doctor V.K. Gupta PW-6. The following injuries were found on his body:- (1) Multiple firearm wounds of entry in an area of 24 Cm. x 11 Cm. on the right side face, right side neck and upper part of the right chest. Each measuring .3 Cm. x .3 Cm. x deep kept under observation. Margin lacerated and inverted. The following injuries were found on his body:- (1) Multiple firearm wounds of entry in an area of 24 Cm. x 11 Cm. on the right side face, right side neck and upper part of the right chest. Each measuring .3 Cm. x .3 Cm. x deep kept under observation. Margin lacerated and inverted. No blackening and tattooing present. (2) Multiple firearm wounds of entry in an area of 20 Cm. x 7 Cm. on the lateral aspect of right upper arm. Each measuring .3 Cm. x .3 Cm. x Muscles deep. Margin lacerated and inverted. No blackening and tattooing was present. (3) Three firearm wounds of entry of the right side back of chest, 5 Cm. apart, each measuring .3 Cm. x .3 Cm. x Muscles deep. Margin lacerated and inverted. No blackening and tattooing present. (4) Two firearms abrasion on the posterior aspect of right firearm 5 Cm. above the right wrist joint. Each measuring .3 Cm. x .3 Cm. No blackening and tattooing was present. Duration of injuries were fresh. Injury report is Exhibit Ka-11. 9. Postmortem examination on the dead body of the deceased Gajraj Singh was performed by Doctor H.B. Singh PW-8 on 10.02.1984 at about 4:00 P.M. The dead body was brought to the Doctor by the Constable 1987 Om Prakash. Following ante-mortem injuries were found:- (1) Multiple gun shot wounds of entrance in area of 4'' x 2'' on right side of face and traumatic swelling. (2) Multiple gun shot wounds of entrance 8''x5'' in front of right side of neck and upper part of right side chest. (3) Multiple gun shot wounds of entrance 14'' x 4'' in front and back of right shoulder and upper arm. (4) Multiple gun shot wounds of entrance 3'' x 2'' on back of right firearm middle. (5) Multiple gun shot wounds of entrance 9'' x 4'' on right side back of chest and upper part. 10. Cause of death was shock and haemorrhage due to ante-mortem injuries. In the opinion of Doctor the death was about one day old postmortem examination report is Exhibit Ka-19. 11. On the strength of submitted charge-sheet the appellant-accused was summoned. (5) Multiple gun shot wounds of entrance 9'' x 4'' on right side back of chest and upper part. 10. Cause of death was shock and haemorrhage due to ante-mortem injuries. In the opinion of Doctor the death was about one day old postmortem examination report is Exhibit Ka-19. 11. On the strength of submitted charge-sheet the appellant-accused was summoned. Since the disclosed offence was exclusively triable by Sessions Court, the learned First Additional Munsif Magistrate, Etah committed the case to the Court of Sessions on 28.03.1985, where it was registered as Session Trial No. 122 of 1985 (State vs. Jai Singh). The aforesaid session trial was transferred to the Court of Additional Sessions Judge, Etah for trial. 12. Learned trial Judge charged the appellant-accused with offence under Section 302 I.P.C. on 21.09.1985. The charge was read over and explained to the appellant-accused. The appellant-accused pleaded not guilty and claimed to tried and consequently session trial procedure was restored to establish the guilt of the appellant-accused. 13. In order to prove its case prosecution has examined informant Ram Avtar PW-1, Suresh Chandra PW-2 and Smt. Vimla Devi PW-3 as witnesses of fact. Sub-Inspector Chandrapal Verma PW-4 who had prepared inquest report and other relevant papers Exhbit Ka-2 to Exhibit Ka-6 regarding the postmortem examination of dead body of the deceased. Constable Om Prakash PW-5 who has prepared chik report, GD of the case under Section 307 I.P.C. which was subsequently converted under Section 302 I.P.C. Doctor V.K. Gupta PW-6 who has conducted the medical examination of deceased and prepared the injury report Exhibit Ka-11 of the deceased. Om Prakash PW-5 before whom the inquest report was prepared and dead body was brought to the Doctor for postmortem examination. Doctor H.B. Singh PW-8 who has conducted the postmortem examination of the dead body of the deceased. Sub-Inspector Phool Singh PW-9 who has conducted the investigation of the case. 14. After the evidence of the prosecution statement of the appellant-accused was recorded under Section 313 Cr.P.C. Appellant-accused has stated that he has been falsely implicated in the present case and the witnesses have deposed false story against him due to enmity. 15. Learned trial Court believed the prosecution case and therefore convicted the appellant-accused under Section 302 I.P.C. and sentenced him accordingly vide judgment and order dated 17.02.1986 which decision has now been called in question in the instant appeal. 16. 15. Learned trial Court believed the prosecution case and therefore convicted the appellant-accused under Section 302 I.P.C. and sentenced him accordingly vide judgment and order dated 17.02.1986 which decision has now been called in question in the instant appeal. 16. Learned counsel for the appellant-accused has submitted that the prosecution could not establish its case beyond reasonable doubt. The findings recorded by the trial Court in the impugned judgment and order dated 17.02.1986 are illegal, perverse and improper. It is also submitted that prosecution story is not believable as pellets, cartridges and blood were not found on the place of occurrence. It was also submitted that the blood stained earth and plain earth have not been taken from the place of occurrence. Prosecution has not produced any chemical examination report before the Court. Thus the place of occurrence of the incident was not established by the prosecution. It was further submitted that the medical evidence does not support the prosecution case. It was also submitted that statement of eye account witnesses is full of contradictions, exaggeration and improvement, which is fatal for prosecution case. The witnesses who had carried the deceased for treatment were not examined. It was also submitted that contradictions have also occurred in the prosecution evidence about the role of the appellant-accused and manner of the incident. It was further submitted that the prosecution has suppressed the origin and genesis of the incident. Enmity between the parties are admitted, therefore, there is much possibility of false implication of the appellant-accused in the present case. It is also submitted that the investigation carried out in the matter is defective and fatal to the prosecution case. Therefore, criminal appeal filed by the appellant-accused is liable to be allowed. 17. Learned A.G.A. for the State has submitted that the prosecution evidence is sufficient to prove the offence punishable under Section 302 I.P.C. He further submitted that in the view consistent versions of the informant Ram Avtar PW-1, Suresh Chander PW-2 and Smt. Vimla Devi PW-3 that the appellant-accused has committed the murder of the deceased by firing country made pistol. The statement of the eye witnesses is reliable and trustworthy. Learned trial Court has rightly convicted the appellant-accused in the present case. Lastly, it is submitted by learned A.G.A. for the State that the appeal filed by the appellant-accused has no merit and is liable to be dismissed. 18. The statement of the eye witnesses is reliable and trustworthy. Learned trial Court has rightly convicted the appellant-accused in the present case. Lastly, it is submitted by learned A.G.A. for the State that the appeal filed by the appellant-accused has no merit and is liable to be dismissed. 18. We have considered the submissions advanced by learned counsel for the parties and perused the judgment and order of the trial Court as well as the record of the case. 19. The first point which is to be considered in the present case the delay in lodging first information report. The incident of this case is alleged to have taken place on 02.02.1984 at about 6:00 A.M. and the FIR of this case was lodged on the same day at 9:00 A.M. i.e. after three hours of the incident. According to the chik report Exhibit Ka-7 the distance of the village from the police station was three miles. During this period informant Ram Avtar PW-1 went to police station for lodging FIR. He must have made some arrangement to proceed the police station. His cousin deceased had received firearm injuries. Considering the facts and circumstances of the present case there is no delay in lodging the first information report. Therefore, it can be said that in the present case prompt FIR has been lodged and specific allegation of firing by country made pistol up on deceased Gajraj Singh has been assigned to the present sole appellant-accused. 20. Deceased Gajraj Singh is cousin brother of informant Ram Avtar PW-1, who has fully and completely supported the case of the prosecution and deposed that around 7 ¾ months ago, the incident had occurred. It was 6:00 A.M. He was serving fodder to his buffalo. Ram Krishan came to his door. He has further deposed that Ram Krishan is younger brother of appellant-accused Jai Singh and his house is opposite to his house. He has also deposed that he said to Ram Krishan that he had told Pachaury of Shahpur that he had thrashed him (Ram Avtar PW-1) badly. On this, Ram Krishan replied that he had stated correctly. Ram Krishan stated that he had lodged a case against him. Then he said that he had lodged the case correctly. There occurred verbal arguments between Ram Krishan and informant Ram Avtar PW-1. Meanwhile his cousin Gajraj Singh came there. On this, Ram Krishan replied that he had stated correctly. Ram Krishan stated that he had lodged a case against him. Then he said that he had lodged the case correctly. There occurred verbal arguments between Ram Krishan and informant Ram Avtar PW-1. Meanwhile his cousin Gajraj Singh came there. He wanted to say something as well. Hearing the arguments, other persons reached there. Ram Das, Suresh, Natthu Singh and wife of Gajraj Singh (deceased) were among them. He has further deposed that Gajraj Singh wanted to say something, then appellant-accused Jai Singh on the roof-top of his house fired from his country made pistol. The bullets hit Gajraj Singh on his cheek, neck and chest. One round of firing was resorted to. As soon as Gajraj Singh was hit by bullet, he first rushed to police station Baghwala. In connection with the occurrence, he got complaint report written by Abhilash Singh. He wrote only those things which he had dictated to him. After writing the report Abhilash Singh read over the contents to him. Then he put his signature on it which he had identified. The 'tehriri' is marked as Exhibit Ka-1. He has also deposed that appellant-accused Jai Singh was present in the Court when his statement was recorded in the Court. He had enmity with these persons before the occurrence. When hit by the bullet, Gajraj Singh was standing against the southward wall. After the report was lodged the Sub-Inspector had gone to his village. Sub-Inspector did not inquire about the occurrence in his presence. The Sub-Inspector had sent the injured Gajraj Singh to the hospital in Etah. At the hospital in Etah, the injuries of the Gajraj Singh were examined. As the condition of Gajraj Singh was critical, he was referred to hospital in Agra, where he was remained admitted in the hospital and after 5-6 days he succumbed to his injuries in Agra. He has further deposed that when he returned from there, he got to know that Gokul, father of the appellant-accused Jai Singh had lodged a fabricated report against them and named Rajbir, Brij Raj, Ram Das, Suresh and Mahesh etc. in it. At the time of death of the deceased, the deceased was wearing other clothes. He was not wearing the same clothes which he wore at the time of occurrence. in it. At the time of death of the deceased, the deceased was wearing other clothes. He was not wearing the same clothes which he wore at the time of occurrence. He had filed 'tehrir' report at police station Baghwala on the same day. He has undergone a lengthy cross-examination but nothing in his cross-examination could be elicited which makes his evidence unreliable. 21. Likewise Suresh Chander PW-2 has also supported the case of prosecution and deposed that the said incident had occurred around a year and nine months back. It was 6:00 A.M. He was present at his home. He heard the use of expletives from the side of Ram Avtar's PW-1 house. Hearing the noise, he and his father Ram Das reached there. Abuses were being exchanged with the Ram Avtar PW-1 and Ram Krishan. Gokul, the father of the Ram Krishan and Chhote Singh were standing there. Appellant-accused Jai Singh was standing on the roof-top wielding a country made pistol. The wife of the deceased Smt. Vimla Devi PW-3 was standing in front of her door. Meanwhile, deceased Gajraj Singh had hardly said anything by standing against the wall after moving further when appellant-accused Jai Singh fired a shot with the country made pistol causing injuries to the deceased Gajraj Singh who fell down there. Ram Avtar PW-1 ran away from the spot and so did appellant-accused Jai Singh. All these persons having absconded Ram Das, Smt. Vimla Devi, he and villagers laid Gajraj Singh on the cot and returned from there. He has further deposed that when abuses were being exchanged, Nathu Singh was present there who was now no more. Gajraj Singh has now died. He had then gone with Gajraj Singh. He has also deposed that Gajraj Singh had died 5-6 days after sustaining injuries during the beating. 22. Smt. Vimla Devi PW-3 is wife of deceased Gajraj Singh. She has also supported the case of prosecution and deposed that it was 6:00 A.M. Around one year and nine months back she was at her door. She heard the voices of informant Ram Avtar PW-1 and Ram Krishan. Some verbal arguments were being exchanged before her house. Upon hearing this, she came out of her home and was standing at the door. Hearing the noise Natthu Singh, Suresh and Ram Nath had come over there. She heard the voices of informant Ram Avtar PW-1 and Ram Krishan. Some verbal arguments were being exchanged before her house. Upon hearing this, she came out of her home and was standing at the door. Hearing the noise Natthu Singh, Suresh and Ram Nath had come over there. Her husband (deceased) had returned after sweeping garbage and cow dung and was standing in front of the door. She has further deposed that appellant-accused Jai Singh fired gun shot. Her husband had hardly moved ahead from the door to say something and come up to the concrete wall of one Vijay, when appellant-accused Jai Singh shot him from the roof-top causing injuries to him. At that very time Ram Avtar PW-1 had fled away. Appellant-accused Jai Singh had fired a gun shot which caused injuries to her husband Gajraj Singh. Ram Das and Suresh had laid him on the cot which was kept on platform. After that Sub-Inspector had visited the village. When Sub-Inspector visited the village, her husband was alive. He had recorded her husband's statement. Sub-Inspector had asked questions from her husband and recorded his statement. She further deposed that Sub-Inspector had sent her husband Gajraj Singh to Etah hospital with a Constable from where her husband was referred to Agra. She had shown the place of occurrence to Sub-Inspector. 23. Both the aforesaid witnesses of fact have also undergone a lengthy cross-examination but nothing in their cross-examination could be elicited which makes their evidence unreliable. Ram Avtar PW-1, Suresh PW-2 and Smt. Vimla Devi PW-3 have depicted an eye to eye picture of what transpired on the fateful day. The place of occurrence was inspected on the same day by the Investigating Officer and place of 'A' has been shown from where the fire was shot by the appellant-accused Jai Singh and the place 'B' has been shown as where deceased Gajraj Singh had received firearm injuries. The place where Ram Avtar PW-1 and Smt. Vimla Devi PW-3 were present has been shown in the site plan Exhibit Ka-17 at place 'C' and 'D'. So witnesses were very close to each other and this incident is said to have taken place in the morning at 6:00 A.M. and there was ample opportunity for the witnesses to see the incident and recognized the appellant-accused. So witnesses were very close to each other and this incident is said to have taken place in the morning at 6:00 A.M. and there was ample opportunity for the witnesses to see the incident and recognized the appellant-accused. The evidence of aforesaid prosecution witnesses of fact is very consistent regarding the role played by the sole appellant-accused and they have stated that the appellant-accused is the person who had fired at deceased from his roof-top and their evidence stand fully corroborated by medical evidence wherein fire wounds were found on the body of the deceased. Learned counsel for the appellant-accused has challenged the evidence of prosecution witnesses of fact on the ground that there are some contradiction in evidence of these witnesses. But we find only minor discrepancies in the evidence of these three witnesses. Minor discrepancies are bound to occur. But it does not make their evidence unreliable. 24. The evidence of informant Ram Avtar PW-1, Suresh Chander PW-2 and Smt. Vimla Devi PW-3 have also been challenged on the ground that the deceased was the cousin brother of Ram Avtar PW-1 and Smt. Vimla Devi PW-3 is widow of the deceased. There was enmity between the Suresh Chander PW-2 and appellant-accused Jai Singh, so they are all related, interested and inimical witnesses. It was also contended by learned counsel for the appellant-accused that Suresh Chander PW-2 has deposed against the appellant-accused because of enmity. Therefore, their statements are liable to be discarded. 25. It is not disputed that the deceased was the cousin brother of Ram Avtar PW-1 and Smt. Vimla Devi PW-3 is the widow of the deceased. It is also not disputed that there was inimical relation between Suresh Chander PW-2 and appellant-accused but there is no law that evidence of close witnesses cannot be acted upon even if they are wholly reliable and their presence at the scene of the occurrence stands established. 26. In a case of State of Uttar Pradesh vs. Sughar Singh and Others AIR 1978 Supreme Court 191 Hon'ble Apex Court has observed in para-10 as under:- "Where the witness is the father of the deceased and also inimical to the accused, he being a partisan witness his testimony has to be viewed with great caution but that itself cannot be sufficient ground to reject it unless the same is found to be untruthful by the reason of other infirmities. On examining the evidence from that angle in the case it can be held that there is no grave infirmity which would go to discredit him." 27. So now it is settled law that the statement of a relative of the deceased cannot be discarded merely on the ground that he or she is an interested and partisan witness. In the present case, the incident is alleged to have taken place in front of the house of deceased Gajraj Singh. Though the deceased was the cousin brother of informant Ram Avtar PW-1 and Smt. Vimla Devi PW-3 is the widow of the deceased but they are most natural witnesses and their presence at the scene of occurrence cannot be doubted. Why these close relatives of the deceased would spare the real assailant and falsely implicate the innocent person appellant-accused who is their neighbourer. The case of the defence is not probable that appellant-accused has been falsely implicated in this case only due to enmity. It is noteworthy that Investigating Officer Phool Singh PW-9 has recorded the statement of the deceased Gajraj Singh under Section 161 Cr.P.C., which is Exhibit Ka-15. In his statement deceased Gajraj Singh had also stated that appellant-accused Jai Singh had fired a shot on him from the roof-top causing injuries to him. 28. Learned counsel for the appellant-accused has contended that since the deceased had received firearm injuries on his face, neck, back and chest, he was incapable of making any statement and therefore the alleged dying declaration in the form of Section 161 Cr.P.C. statement recorded by the Investigating Officer Phool Singh PW-9 cannot be true. Learned counsel has further contended that as per para-115 of Police Regulations, Section 161 Cr.P.C. statement, if were to be treated as dying declaration, the same should have been done in presence of two respectable witnesses in which the signature or mark of the declarant and the witnesses at the foot of the declaration should have been obtained. It was further contended that since the said requirement was not fulfilled, the said statement could not have been relied upon. 29. According to the injury report Exhibit Ka-11 of the deceased and postmortem examination report Exhibit Ka-19 there were firearm injuries on the face, neck, back and chest of the deceased Gajraj Singh. It was further contended that since the said requirement was not fulfilled, the said statement could not have been relied upon. 29. According to the injury report Exhibit Ka-11 of the deceased and postmortem examination report Exhibit Ka-19 there were firearm injuries on the face, neck, back and chest of the deceased Gajraj Singh. Statement of the Investigating Officer Phool Singh PW-9 shows that the deceased was fully conscious after attack on him. He had recorded the statement of the deceased under Section 161 Cr.P.C. in conscious condition of the deceased. Doctor V.K. Gupta PW-6 has deposed that the deceased was in semi conscious condition when he was medically examined by him. The statement of Dr. V.K. Gupta PW-6 shows that the condition of the deceased was as such that he was capable of giving statement. In these circumstances, the statement recorded by the Investigating Officer Phool Singh PW-9 of the deceased was true and the contention of the learned counsel for the appellant-accused that the deceased was not in a position to make statement cannot be accepted. Para 115 of the Police Regulations will apply only in a grave situation where the victim is seriously injured and which would be impossible compliance of Section 32(1) of the Evidence Act in its full rigour. Investigating Officer was not recording the dying declaration of the deceased, he was only recording the statement of the deceased under Section 161 Cr.P.C. which does not require the signature of the author of the statement or the presence of two respectable witnesses at the time of recording the statement. It is noteworthy that deceased had died after six days of the incident. It shows that on the date of incident deceased was in a fit state of mind to give statement under Section 161 Cr.P.C. After lodging FIR Investigating Officer got his statement recorded under Section 161 Cr.P.C. Accused was neighbourer of the deceased. Incident is said to have taken place in the morning at about 6:00 A.M. Deceased and eye witnesses had recognized the accused in the day light. Statement of deceased under Section 161 Cr.P.C. has also been corroborated by the ocular witnesses and Investigating Officer S.I. Phool Singh PW-9. So, the statement of the deceased recorded under Section 161 Cr.P.C. is found worthy and can be relied on as dying declaration. Statement of deceased under Section 161 Cr.P.C. has also been corroborated by the ocular witnesses and Investigating Officer S.I. Phool Singh PW-9. So, the statement of the deceased recorded under Section 161 Cr.P.C. is found worthy and can be relied on as dying declaration. In case of Gulab Singh vs. State of U.P. 2003 (47) ACC 161 Division Bench of this Court has held in para-17 as under:- "17. In the instant case the statement of Satya Narain Singh is worthy to be relied on. It amounts to dying declaration. It has been corroborated by the statement of PW 1 Smt. Babuni, the statement of the investigating officer, the Constables and his statement is consistent with the postmortem examination report. There is motive to cause firearm injury and no person would falsely involve his own family member unless he is really the culprit and caused the injury. Therefore, we fully subscribe to the view expressed by learned Sessions Judge, who held Gulab Singh guilty under section 302 IPC and sentenced him with life imprisonment." 30. In case of Sri Bhagwan vs. State of Uttar Pradesh (2013) 12 Supreme Court Cases 137 Hon'ble Apex Court has observed in para-19 as under:- "19. Before us, for the first time it was contended on behalf of the appellant that the said statement cannot be accepted as a dying declaration for the reason that it was not attested by two respectable witnesses as is required in para 115 of the police regulations. The said paragraph 115 reads as under: "115. The officer investigating a case in which a person has been so seriously injured that he is likely to die before he can reach a dispensary where his dying declaration can be recorded should himself record the declaration at once in the presence of two respectable witnesses, obtaining the signature or mark of the declarant and witnesses at the foot of the declaration." A reading of the said paragraph appears to be a guideline issued to the investigating officers as to the precautions to be taken while recording a dying declaration. It is stated therein that such declaration can be recorded by the investigating officer himself in the presence of two respectable witnesses and obtain the signature or mark of the declarant and the witnesses at the foot of the declaration. It is stated therein that such declaration can be recorded by the investigating officer himself in the presence of two respectable witnesses and obtain the signature or mark of the declarant and the witnesses at the foot of the declaration. In the first place, such a guideline in the form of police regulation can have no impact on any superior statutory prescription. Leaving aside such a proposition which does not require to be considered in this case, the said para 115 will apply only in a grave situation where the victim is seriously injured and it would be impossible compliance of Section 32 (1) of the Evidence Act in its full rigour. Such guidelines have been issued to insure that at least the basic requirement of recording such a dying declaration in the presence of two respectable persons as witnesses while obtaining the signature or mark of the victim himself. It is relevant to note that the said paragraph 115 makes a specific reference to the recording of the dying declaration in which event alone such precautions have to be ensured by the investigating officers and not when Section 161 statement is recorded which does not require the signature of the author of the statement." 31. Learned counsel for the appellant-accused has drawn our attention to the statement of the Doctor V.K. Gupta PW-6 and contended that injuries could not be caused to the deceased by single shot. Looking into the injuries of the deceased it can be said that at least two shots were fired. It is further contended that eye witnesses deposed that only one gun shot was fired at the deceased. Medical report Exhibit Ka-11 showed four gun shot injuries on the body of the deceased. It was also contended that Doctor V.K. Gupta PW-6 explained that four injuries could not be caused by one shot. It is also contended that inconsistency between the evidence of Doctor and eye witnesses as to how the injuries were caused the evidence of the Doctor V.K. Gupta PW-6 shall override the testimony of the eye witnesses. 32. According to the medical report Exhibit Ka-11 following injuries were found on the body of the deceased:- (1) Multiple firearm wounds of entry in an area of 24 Cm. x 11 Cm. on the right side face, right side neck and upper part of the right chest. Each measuring .3 Cm. 32. According to the medical report Exhibit Ka-11 following injuries were found on the body of the deceased:- (1) Multiple firearm wounds of entry in an area of 24 Cm. x 11 Cm. on the right side face, right side neck and upper part of the right chest. Each measuring .3 Cm. x .3 Cm. x deep kept under observation. Margin lacerated and inverted. No blackening and tattooing present. (2) Multiple firearm wounds of entry in an area of 20 Cm. x 7 Cm. on the lateral aspect of right upper arm. Each measuring .3 Cm. x .3 Cm. x Muscles deep. Margin lacerated and inverted. No blackening and tattooing was present. (3) Three firearm wounds of entry of the right side back of chest, 5 Cm. apart, each measuring .3 Cm. x .3 Cm. x Muscles deep. Margin lacerated and inverted. No blackening and tattooing present. (4) Two firearms abrasion on the posterior aspect of right firearm 5 Cm. above the right wrist joint. Each measuring .3 Cm. x .3 Cm. No blackening and tattooing was present. Duration of injuries were fresh. Injury report is Exhibit Ka-11. 33. Doctor H.B. Singh PW-8 who had conducted the postmortem examination on the body of the deceased deposed that injuries of the deceased could be caused by one gun shot. According to the postmortem report Exhibit Ka-19 following ante-mortem injuries were found on the body of the deceased:- (1) Multiple gun shot wounds of entrance in area of 4'' x 2'' on right side of face and traumatic swelling. (2) Multiple gun shot wounds of entrance 8''x5'' in front of right side of neck and upper part of right side chest. (3) Multiple gun shot wounds of entrance 14'' x 4'' in front and back of right shoulder and upper arm. (4) Multiple gun shot wounds of entrance 3'' x 2'' on back of right firearm middle. (5) Multiple gun shot wounds of entrance 9'' x 4'' on right side back of chest and upper part. 34. So there is inconsistency between the evidence of Doctor V.K.Gupta PW-6 and Doctor H.B. Singh PW-8. The question of relying upon one or other Doctor would depend upon the facts and circumstances of the case. The statement of the eye witnesses are found to be consistent with the opinion of Doctor H.B. Singh PW-8, but inconsistent with the opinion of Doctor V.K. Gupta PW-6. The question of relying upon one or other Doctor would depend upon the facts and circumstances of the case. The statement of the eye witnesses are found to be consistent with the opinion of Doctor H.B. Singh PW-8, but inconsistent with the opinion of Doctor V.K. Gupta PW-6. Where there is inconsistency between the evidence of Doctors that the injuries on the body of the deceased were caused by one gun shot or more, on the basis of such inconsistency unimpeachable testimony of the eye witnesses could not be disbelieved. In the present case the direct evidence of the eye witnesses is that the appellant-accused has committed murder of the Gajraj Singh by firing a shot with country made pistol. Therefore, inconsistency relating to the number of the shot based on medical opinion offered would be of no significance. It is trite that where the eye witnesses account are found credible and trustworthy, the difference of medical opinion pointing to the alternative possibilities should not be accepted. In catena of decisions Hon'ble Apex Court has held that whenever there is conflict between medical evidence and ocular testimony normally ocular testimony should be preferred unless it belies fundamental facts. 35. In case of Piara Singh and Others vs. State of Punjab AIR 1977 Supreme Court 2274 Hon'ble Apex Court has observed in para nos. 5 and 6 as under:- "5. It is well settled that the positive evidence in the case is that of the eye-witnesses who had seen and narrated the entire occurrence. The evidence of a medical man or an expert is merely an opinion which lends corroboration to the direct evidence in the case. Where there is a glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story, that is undoubtedly a manifest defect in the prosecution case. 6. Where the opinion of a medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion, the opinion of that expert should be accepted which supports the direct evidence in the case." 36. In case of Leela Ram (D) through Duli Chand vs. State of Haryana & Anr. JT 1999 (8) SC 274 Hon'ble Apex Court has held in para-15 as under:- "15. In case of Leela Ram (D) through Duli Chand vs. State of Haryana & Anr. JT 1999 (8) SC 274 Hon'ble Apex Court has held in para-15 as under:- "15. It is the above evidence which has prompted the High Court to ask the learned Advocate appearing for the prosecution "to caricature any position in which a man can strike such an injury with a .12 bore gun......." Whether there was one shot or two shots, can it not be termed to be immaterial in the matter of assessing the culpability of the accused. The son who saw his father has been shot at and thereafter fell dead - total stunning effect on the son and it is on this score that mere hair splitting on the available evidence ought not to be undertaken and instead the totality of the situation ought to have been reviewed. The empty cartridges were found and the ballistic expert's report that the cartridges match with the injury. The High Court ascribes this to be an immaterial piece of evidence. We, however, do not think so. Ballistic expert's evidence cannot be brushed aside since that is in the normal course of events, a valuable material vis-a-vis the use of the gun and the injury. The High Court went on to record the contradiction from the medical evidence but unfortunately the same does not find support from the evidence on record. Dr. A.S. Chaudhary having done the post-mortem examination on the deceased Maman, has stated in his evidence that: "Injuries Nos. 2, 4 and 5 are the exit wounds. Injuries Nos. 1 and 3 are the entry wounds". Dr. Chaudhary further said that "Injury No. 1 is an entry wound of point blank range". The doctor has been subjected to cross examination and he at the end of it all said that; "It can be said that the injuries on the person of the deceased were the result of one shot". It is on this count, the High Court recorded that Dr. Chaudhary "had also to agree to this position" (emphasis supplied). Needless to say that the Doctor probably has not been able to match the cross-examining lawyer and there was thus an unequal duel between the medical man and a refined lawyer. Can it be said; that by reason of the evidence of Dr. Chaudhary "had also to agree to this position" (emphasis supplied). Needless to say that the Doctor probably has not been able to match the cross-examining lawyer and there was thus an unequal duel between the medical man and a refined lawyer. Can it be said; that by reason of the evidence of Dr. Chaudhary the contradictions are galore in nature, so far as the evidence of Leela Ram is concerned - the High Court upon consideration of the factum of such a contradiction answers the same on a positive note. This however, is not acceptable to this Court: the discrepancy does not seem to be of such a nature so as to effect the creditworthiness or the trustworthiness of the witness. As as matter of fact it does not so do by reason of the fact that Maman fell a victim of gun shot injuries and died; it is immaterial as to whether one or two gun shots were fired - the contradiction at its highest cannot but be stated to be in regard to a minor incident and does not travel to the root of the nature of the offence. The other piece of evidence is that the Sarpanch and the members of the village panchayat saw the accused running away towards the village Aharwan just after firing with his gun." 37. Learned counsel for the appellant-accused has further submitted that the prosecution story is not believable as pellets, cartridges and blood were not found on the place of occurrence. It was also submitted that the blood stained earth and plain earth have not been taken by the Investigating Officer from the place of occurrence so the place of occurrence of the incident is not established by the prosecution, which is fatal for the prosecution. 38. It is true that the Investigating Officer had not collected the blood stained earth and plain earth from the place of occurrence. Investigating Officer Phool Singh PW-9 has deposed that he had not found blood on the place of occurrence. He had also not found pellets and cartridges at the place of occurrence. As we are aware of the fact that in villages the ground is almost all 'kachcha'. After incident the movement of the people was not restrained at the place of occurrence. He had also not found pellets and cartridges at the place of occurrence. As we are aware of the fact that in villages the ground is almost all 'kachcha'. After incident the movement of the people was not restrained at the place of occurrence. Though the Investigating Officer came to the village after some hours of the incident but he had not found blood, pellets and cartridges on the place of occurrence. In above circumstances where the movement of the people was not restrained at the place of occurrence hence if the blood, pellets and cartridges were not found at the place of occurrence that is not serious infirmity. We have seen that in the present case there is other reliable evidence to connect the appellant-accused with the crime. The prosecution has successfully proved that the appellant-accused had fired bullet with country made pistol at the deceased and caused his death. So the blood, pellets and cartridges were not found on the place of occurrence will not be fatal to the prosecution case. 39. On the basis of above discussions, we are of the view that the prosecution has been able to prove its case beyond all reasonable doubt against the appellant-accused. The charge of the murder levelled against the appellant-accused is well proved, therefore, the appellant-accused has been rightly held guilty and he has been rightly convicted for life imprisonment. We fully concur with the findings of the trial Court. The Criminal Appeal No. 543 of 1986 (Jai Singh vs. State) filed by the appellant Jai Singh lacks merit and is hereby dismissed. 40. Appellant-accused is stated to be on bail. The appellant-accused Jai Singh shall surrender before the trial Court within 30 days from the date of this judgment to serve the sentence awarded to him, failing which learned trial Court shall issue non-bailable warrants against him and shall send him to jail serving the sentence as ordered. 41. Let a copy of this judgment be sent to the learned Sessions Judge concerned for securing compliance and compliance report shall be submitted to this Court. 42. Office is directed to send back the records of trial Court immediately.