Pooran Singh And Others vs State on 16 July, 2026

Allahabad High Court

Pooran Singh And Others vs State on 16 July, 2026

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2026:AHC:144976-DB
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL APPEAL No. - 215 of 1989   
 
   Pooran Singh And Others    
 
  .....Appellant(s)   
 
 Versus  
 
   State    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Sukhvir Singh   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Dga   
 
      Reserved On 25.03.2026  Delivered On 16.07.2026 Uploaded On 17.07.2026  Court No. - 48
 
   
 
  
 
HON'BLE CHANDRA DHARI SINGH, J.   

HON’BLE LAKSHMI KANT SHUKLA, J.

(Per: Hon’ble Lakshmi Kant Shukla, J.) 1. The present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.) has been preferred by the appellant nos. 1, 2 & 3, namely, Pooran Singh, Darshan Singh and Mahendra Singh, respectively, against the judgment and order of conviction dated 25.01.1989 passed by the IInd Additional Sessions Judge, Saharanpur, whereby appellant no. 1, Pooran Singh has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life, and appellant nos. 2&3, namely, Darshan Singh and Mahendra Singh, respectively, have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced to imprisonment for life.

SPONSORED

2. During the pendency of the present appeal, appellant No. 2, Darshan Singh, died on 26.10.2023 and appellant no. 3, Mahendra Singh died on 30.12.2019. Since, no application seeking leave to pursue the appeal on behalf of the said deceased appellants has been moved, the appeal, insofar as relates to appellant nos. 2 & 3, namely, Darshan Singh and Mahendra Singh, respectively, has already been abated. Now, the instant appeal lies only on behalf of appellant no. 1, Pooran Singh.

3. Brief facts of the case, as narrated in the written complaint (Exhibit Ka-3) are that on the night of the incident, i.e. 03.02.1984, the informant, Jageendra Singh along with his father, Swarn Singh, was sleeping in the verandah of their house where an electric light was on. In the night at about 10:30 pm, three persons, namely Pooran Singh son of Dalveer Singh, resident of Jandkheda, Police Station Rampur, armed with a country-made pistol and Darshan Singh & Mahendra Singh, both sons of Pyara Singh, residents of Khandwa, Police Station Gangoh, District Saharanpur arrived at the informant’s house. Upon hearing the barking of dogs, the informant’s father woke up and recognized the aforesaid accused persons and on being questioned by the informant’s father as to why they had come, accused Pooran Singh responded that they had come to settle scores with him. The accompanying accused persons exhorted Pooran Singh to shoot the deceased by saying “what are you looking at? Shoot the bastard. He acts like a big leader.” Thereafter, Pooran Singh fired a single gun shot at the informant’s father with the intention to kill him. The bullet struck the right side of his chest. On hearing the gunshot, nearby persons, namely, Balbeer Singh son of Ajeet Singh and Kulwant Singh son of Kashmeera Singh, residents of Khandwa and the informant’s elder brother, Balvindra Singh reached the spot and witnessed the occurrence. They attempted to apprehend the accused persons, however, the accused persons managed to flee away towards north west direction and could not be apprehended. Thereafter, they took the injured for treatment to the Government Hospital at Gangoh on the tractor of the village Pradhan where he was medically examined. On the next morning, the doctor advised and referred the injured to Saharanpur for further treatment. Subsequently, the informant approached the police station to lodge a first information report. On the basis of the written report, Chik FIR dated 04.02.1984 (Exhibit Ka-1) giving rise to Case Crime No. 23, under Section 307/34 I.P.C., Police Station Gangoh, District Saharanpur was registered at 07:30 am against the aforesaid accused persons. On 05.02.1984 the injured Swarn Singh died on 05.02.1984 at 8:15 am, thereafter section 302 IPC was added.

4. Upon registration of FIR, Investigating Officer started investigation. During the course of investigation the informant, Jageendra Singh, handed over one empty cartridge of 12 bore and 9 pellets of a 12 bore cartridge to the Investigating Officer. A torch and bloodstained soil, from the place of occurrence, were also collected. The aforesaid articles were seized in the presence of witnesses vide recovery memo Exhibit Ka-4, Exhibit Ka-5 and Exhibit Ka-15. The Investigating Officer also recorded the statement of the injured under Section 161 Cr.P.C. wherein he supported the prosecution version as narrated in the FIR. After completion of investigation, the Investigating Officer filed charge sheet dated 27.02.1984 (Exhibit Ka-12A) against accused Pooran Singh, Darshan Singh and Mahendra Singh, under Sections 147, 148, 307, 302 I.P.C.

5. The following anti-mortem injuries were found on the body of the injured, Swarn Singh:

(i) Gun shot wound 2 cm x 1 cm x depth cannot be ascertained 5 cm above the Rt nipple on the Rt Side chest. Blood was coming out from the wound. No tattooing. No scorching or blackening on the wound.

(ii) Multiple Gun Shot wound in an area of 20 cm x 14 cm on the right side chest. Size of each Gun Shot wound cm x cm x depth cannot be ascertained. Blood oozes out from each wound. No tattooing. No Scratching. No Blackening on the wound.

6. The following postmortem injuries were found on the body of the deceased, Swarn Singh:

1. Gun Shot injury wound of entry 2 x 1 cm x lung cavity deep 5cm above the right nipple at 2’clock position. No blackening, No tattooing, no charring present.

2. Multiple gun shot wound of entry 20 x 14cm x muscle and lung cavity deep, size of each gun shot wound is x 1/4cm. No blackening. No charring present. Blood from the wound coming and multiple gun shot wound are around the injury no. 1.

7. The Chief Judicial Magistrate took cognizance of the case. As the offence was exclusively triable by the Court of Session, the case was committed to the Court of Session which came up before the II Addl. Sessions Judge, Saharanpur. Charges were farmed against accused Pooran Singh, under Section 302 I.P.C. and accused Darshan Singh and Mahendra Singh were charged with offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. on 17.10.1986. All the charges framed against the accused persons were explained and read over to them which they denied and claimed to be tried.

8. In support of his case, the prosecution examined nine witnesses, namely, P.W.-1, Badloo Ram, Constable, who registered the case at Police Station Gangoh, P.W.-2 Jageendra Singh, complainant/eye witness of the incident, P.W.-3, Kulwant Singh, eye-witness, P.W.-7 Balbir Singh, eye-witness, P.W.-6, constable Vijaypal, who took the body of the deceased for the post-mortem, P.W.-4, Dr. R.K. Tayal, who examined the injured at P.H.C. Gangoh, P.W.-5, Dr. Chandra Gupta, who conducted post-mortem examination, P.W.-8 & P.W.-9, Inspector V.K. Yadav and S.I. O.P. Sharma, investigating officers of the case and got proved the chick FIR Ex. Ka-1, G.D. Entry Ex. Ka-2, Written Report Ex. Ka-3, Recovery memo of Empty Cartridge, Tikli & Pallets Ex. Ka-4, Recovery memo/Supurdaginama of Torch Ex. Ka-5, Medical Report of deceased Ex. Ka-6, Post mortem report Ex. Ka-7, Police Form 13 Ex. Ka-8, Letter to R.I. Ex. Ka-9, Letter to CMO Ex. Ka-10, Panchayatnama Ex. Ka 11, Photolash Ex. Ka-12, Charge sheet Ex. Ka-12A, Statement u/s 161 of deceased Ex. Ka-13, C.D. Ex. Ka-13A, Site plan Ex. Ka-14, C.D. Ex. Ka-14A, Recovery memo of blood stains & plain earth Ex. Ka-15, G.D. Entry Ex. Ka-16 (Rapat No. 41 at 19:30 dated 06.02.1988), Vidhi Vigyan Prayogshala (FSL) Report Ex. Ka-17, Letter to FSL Ex. Ka-18..

9. The accused persons were examined under Section 313 Cr.P.C., wherein they denied the prosecution case in toto and stated that they have been falsely implicated in the present case due to previous enmity.

10. The defence got examined DW-1 Bhudev Sharma and got proved copy of G.D. entry Rapat No. 6 dated 04.02.2024 at 06:05 am as Ex. Kha-1, as well as certified copy of judgment in S.T. No. 197 of 1984, State Vs. Balvinder Singh @ Bindu dated 09.12.1988 decided by 3rd Additional Sessions Judge, Saharanpur.

11. After considering the facts and circumstances of the case, hearing the valuable arguments of the learned counsel for the parties, and upon appreciation of the evidence available on record, the Trial Court vide judgement and order dated 25.01.1989 convicted the accused Pooran Singh under Section 302 I.P.C. and accused Darshan Singh and Mahendra Singh, under Section 302 I.P.C. read with Section 34 I.P.C. All the three accused persons were sentenced to undergo imprisonment for life.

12. Feeling aggrieved by the aforesaid judgement and order, the present appeal has been preferred by the appellants on the following grounds:

(i) that the findings recorded by the Trial Court are contrary to the facts and law applicable to the case;

(ii) that the conviction and sentence are based on misreading and mis-appreciation of the evidence on record and is too severe;

(iii) that the conviction and sentence recorded by the Trial Court is excessive.

13. Heard Mr. Sandeep Kumar Dubey, the learned Amicus Curiae appearing of behalf of appellant no. 1 and Mr. S.K. Ojha, learned AGA appearing on behalf of State and perused the record.

14. Learned Amicus Curiae submitted that the written report in question was scribed by Bijendra Singh S/o Ramdas but the scriber of written report has not been examined so it cannot be said that written report has been duly proved. The next submission of learned Amicus Curiae is that no recovery either from possession of appellant no. 1 or on his pointing out has been made, so the involvement of appellant no. 1 in present criminal act cannot be ascertained. His third submission is that according to the so called ocular witness, only one gun shot was fired in the incident and only one empty cartridge was recovered from the place of occurrence by the Investigating Officer, whereas the injury report of deceased Ex. Ka-6 and his postmortem report Ex. Ka-7 reflect that the deceased has sustained two gun shot injuries. Thus, it is clear that if the so called ocular witnesses were present on spot at the time of incident, they would have witnessed two firing. So this is a blind murder case and presence of ocular witness at the spot is not credible one. The next submission of learned Amicus Curiae is that, according to submission of so called ocular witness there was light from a torch and a lantern but a single source of light of torch was handed over to the Investigating Officer with the assertion that the witnesses had identified the culprits with the help of said torch.

15. So far as the first point raised by the learned Amicus Curiae is concerned, the statement of PW-2/the informant of the case, is on record. He is the signatory to the written report and has duly proved it before the Court, meaning thereby the said written report has been duly proved by its signatory so far non production of its scriber Bijendra Singh does not discredit this document. In the case of Anil Kumar vs. State of U.P., (2003) 3 SCC 569, the Apex Court has observed that non-examination of scriber of FIR is not fatal to prosecution and no adverse inference can be drawn against prosecution if the scriber was not an eye-witness to the incident. The complainant/informant had proved the execution of the FIR by examining himself as PW-3.

16. So far as second point raised by learned Amicus Curiae is concerned, the present case rests upon ocular evidence. In cases where there is reliable and cogent ocular evidence is available recovery of weapon is not of significant consequence and is not essential to sustain the prosecution case. In this regard, reliance may be placed upon the judgment of the Apex Court in the case of Gulab v. State of U.P., (2022) 12 SCC 677, wherein the Apex Court has also observed that non-recovery of the weapon would not discredit the prosecution when eyewitnesses are credible, and that failure to produce ballistic opinion would not be sufficient to impeach credible direct evidence.

18. So far as third submission of learned Amicus Curiae is concerned Ex. Ka-6 and Ex. Ka-7, namely the injury report and post-mortem report of deceased respectively reflects that injury no. 2 situated around injury no. 1 meaning thereby the medical examination as well as doctor who conducted autopsy found only one gun shot injury, therefore, the submission of learned Amicus Curiae is not sustainable. In this regard, reliance may be placed upon the judgment of the Hon’ble Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174, wherein it has been held that medical evidence is essentially corroborative in nature and unless it completely rules out the prosecution version, the same cannot be made a ground to discard otherwise reliable evidence. Similar view has been taken in State of U.P. v. Krishna Gopal (1988) 4 SCC 302, wherein the Hon’ble Supreme Court held that where the ocular testimony is found credible and trustworthy, medical opinion pointing to alternative possibilities is not to be accepted as conclusive, and such ocular evidence cannot be discarded unless the medical evidence completely rules out the prosecution version. Further, in Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380. The relevant paragraph no. 17 of the aforesaid is quoted herein below:-

“17. The width of the ligature mark would very much depend upon the type of the cloth, how tightly and strongly it was rolled over and was converted into a rope and how soon it was removed. In Punjab Singh v. State of Haryana (1984) SCC (Cri) 484 it was held that if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence. Again in Anil Ral v. State of Bihar (2001) 7 SCC 318 it was held that if medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of the eyewitnesses has to be accepted. We are in respectful agreement with the view taken in the above cases. We are, therefore, clearly of the opinion that in the case in hand there is no inconsistency between the testimony of the eyewitnesses and the medical evidence and the case of the prosecution does not suffer from any infirmity on that account.”

19. Learned Amicus Curiae next submitted that the inquest of deceased was conducted on 05.02.1984 between 11:00 am and 1:00 pm though the FIR was lodged on 04.02.1984 at 7:30 am the inquest report does not contain crime number and relevant penal clauses.

20. So far as non mentioning of crime number and relevant penal provisions in inquest report is concerned, it is expedient to clarify that inquest report of a dead body is conducted in pursuance of provisions contained in section 174 of Cr.P.C. Section 174 Cr.P.C. provides as under:-

“174. Police to enquire and report on suicide, etc.-(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule made by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forwarded to the District Magistrate or the Sub-divisional Magistrate within twenty-four hours.

(3) When-

(i) the case involves suicide by a woman within seven years of her marriage;

or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical person appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate”

21. The purpose of Section 174 is to ensure that the inquest report reflects the apparent cause of death and to describe the wounds, marks, or injuries found on the body and the manner or the weapon by which such injuries may have been inflicted. There is no specific column in the prescribed proforma for an inquest report that requires the mentioning of the crime number or the relevant penal sections. Therefore, the inclusion of the crime number and relevant penal sections in the inquest report is neither mandatory nor required. Consequently, the contention of the learned Amicus Curiae in this regard is unsustainable.

22. The learned Amicus Curiae further contended that the alleged dying declaration of the deceased has been proved as Ex. Ka-13, being a statement of the deceased (intended to be recorded during his lifetime while in an injured condition) under Section 161 Cr.P.C. However, the said document neither bears the signature or thumb impression of the deceased, nor has it been attested by any witness. In this regard, Rule 115 of the Police Regulations mandates that such a statement of the deceased must carry the signatures or thumb impressions of two witnesses. Therefore, the evidentiary value of the said document is rendered doubtful.

23. So far as the contention regarding discrepancies in the statement of the deceased recorded under Section 161 Cr.P.C. (Ex. Ka.-13) is concerned, it is evident that such a statement was recorded during the course of investigation. Section 162 Cr.P.C. provides that if the Investigating Officer obtains the signature of a witness on a statement recorded under Section 161 Cr.P.C., such an act would vitiate the investigation, meaning thereby non obtaining the signatures of witness (in present case of deceased) on his statement u/s 161 Cr.P.C. is a mandate. So on the basis of non presence of signature of deceased or any other witness on the statement u/s 161 Cr.P.C. does not cause any prejudice to the defence. Consequently, the argument advanced in this regard lacks legal merit and is unsustainable. In this regard, reliance may be placed upon the judgment of Hon’ble Supreme Court in the Case of Pradeep Bisoi @ Ranjit Bisoi Vs. State of Odisha (2019) 11 SCC 500. The relevant paragraph no. 11 of the aforesaid judgment is quoted hereunder:-

“11. Sub-section (2) of section 162 incorporataes a clear exception to what has been laid down in sub-section (1). The statement recorded by police under section 161, falling within the provisions of clause (1) of Section 32 of the Evidence Act, thus, is clearly relevant and admissible.

In Mukeshbhai Gopalbhai Barot Vs. State of Gujrat (2010) 12 SCC 224, this Court had the occasion to consider Sections 161 and 162 CrPC and Section 32 of the Evidence Act. In the above case, the victim, who received burn injuries on 14-9-1993 was admitted to Civil Hospital. Her statement was recorded by the Executive Magistrate and by the police. The statement recorded by the police under Section 161 CrPC was discarded by the High Court taking the view that it had no evidentiary value. The view of the High Court was not accepted by this Court. In paras 16 and 17, this Court held that the statement of persons recorded under section 161 can be treated as dying declaration after death?…”

24. Learned Amicus Curiae further argued that before obtaining the dying declaration no medical certificate regarding fit state of mind of deceased was obtained. In this regard in our considered view if the statement of injured who later on died, is recorded in hospital as dying declaration the certificate of Doctor treating the injured regarding his fit state of mind is compulsory not only that but during whole process of recording of dying declaration the injured was in fit state of mind to give statement. According to FIR version when the FIR was lodged only section 307 IPC was levelled. The FIR was lodged on 04.02.1984 at 7:30 am and the injured died on 05.02.1984 at 08:15 am. The FIR was lodged after getting the injured (later deceased) admitted in Government Hospital, meaning thereby if the dying declaration was recorded the above mentioned formalities of certification was mandatory. Section 32(1) of Indian Evidence Act 1872 provides as under:-

“(1) When it relates to cause of death:- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question”

25. This is because when a person feels that his end is near, he doesn’t want to tell a lie that could endanger his safety. Therefore, a dying person cannot lie. In such a situation, he must realize that he may die. The same view has been taken in the judgment of Hon’ble Supreme Court in the case Laxman Vs. State of Maharashtra (2002) 6 SCC 710 in paragraph no. 3, the same is quoted herein below:-

“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

26. According to statement of PW-9 Sub Inspector Om Prakash Singh who proved the statement of injured recorded under section 161 Cr.P.C. as his dying declaration as Ex. Ka-13 on 04.02.1984 he was posted as S.I. at the police station concerned and was entrusted with the Investigation of the case. He copied the FIR in G.D. and C.D., recorded the statement of constable Badlu Ram Sharma and copied the Medical report of injured. Thereafter he recorded the statement of injured Swarn Singh lying on a trolley outside the police station, meaning thereby at that time the injured was not in hospital. According to the FIR version, the informant, along with others, took the injured to the Government Hospital at Gangoh in the tractor of the Village Pradhan, where medical aid was provided. The doctor subsequently referred the patient to a higher centre. While proceeding towards Saharanpur, they stopped at the police station along with the injured. This indicates that the Investigating Officer had an opportunity to record the statement of the injured under Section 161 Cr.P.C. outside the police station. In such circumstances, there was no requirement to obtain certification from a medical expert regarding the patient’s fitness to give a statement, and therefore, the absence of such certification is not material.

27. If the dying declaration is recorded by a Magistrate in presence of and under certification of doctor is much credible the grade of credibility decreases towards statement recorded by doctor in absence of Magistrate, statement recorded by police etc. Moreover written dying declaration is more credible than oral dying declaration, meaning thereby in case of oral dying declaration the Court should be very cautious at the time of placing reliance upon it. Such declaration requires some clarification too. If such dying declaration gets corroboration from other evidence the conviction can be based on that dying declaration.

28. So far as the law laid down by Hon’ble Apex Court in Paparambaka Rosamma and others Vs. State of Andhra Pradesh reported in (1999) 7 SCC 695 is concerned, the said judgment does not apply to present case due to different factual condition of the instant case.

29. Keeping the alleged dying declaration at the centre, learned Amicus Curiae argued that according to internal examination of the deceased pleura on right side and the lungs were badly lacerated all over, the stomach contained approximately 300 ml of coffee coloured fluid. In such circumstances, it is highly improbable that the deceased was in a fit condition to give a detailed dying declaration.

30. It is undisputed that injured Swarn Singh died on 05.02.1984 at 8:15 am. The incident is said to be of 03.02.1984 at 10:30 pm and the FIR was lodged on 04.02.1984 at 7:30 am just after that the Investigating Officer copied the chick FIR and G.D., recorded the statement of Chick scriber, copied the medical report in C.D. and recorded the statement of injured (later deceased), meaning thereby the statement was recorded approximately one day prior to his death. Moreover, the medical report of injured, Ex. Ka-6, does not contains the unconscious status of patient, meaning thereby the injured was not unconscious and in absence of any positive evidence regarding unconsciousness of injured, later on deceased it cannot be said that he was not in a position to give statement. It is remarkable that even if the injured is not in a position to speak but in conscious position he may answer the question by way of indication and in such matter his statement can be recorded.

31. The next submission of learned Amicus Curiae in the present case is that there is no independent witness has been examined. PW-2 is the son of deceased, PW-3 is the Sadhu of deceased and PW-3 is brother-in-law of deceased. In this regard it is pertinent to mention that in modern selfish era no one wants to be part of a Court proceedings unless and until he is interested or otherwise is bound by law to come to court and depose. Due to fear that if he involves himself in proceeding against an accused of such a heinous offence like murder he or his family may meet with fatal consequence ruling. Thus it is made clear that only for the reasons that conviction is based on the statement of interested witness the conviction cannot be set aside.

32. Learned Amicus Curiae has further submitted that according to the statement of appellant no. 1 Pooran Singh, in his statement under section 313 Cr.P.C., has stated that the present case has been instituted against him due to prior enmity. In this regard, it is pertinent to clarify that enmity is a double-edged weapon. On one hand, it may provide a motive for the false implication of an adversary; on the other hand, it equally furnishes a motive for the commission of the offence itself. In the present case, the murder is alleged to have been committed on account of existing enmity. It is well settled that, in cases involving the murder of a close relative, it is highly improbable that the complainant would falsely implicate an enemy while allowing the real culprit to escape. At the most, if the incident had been committed by some other person, there might have been a possibility of naming such person along with an enemy due to previous enmity. However, in the present case, the principal role of firing has been specifically attributed to Appellant No. 1, Pooran Singh. Therefore, in the facts and circumstances of the case, the plea of false implication on account of enmity appears weakens the commission of offence because of such enmity.

33. Learned Amicus Curiae further argued that according to prosecution case one accused fired while the other two merely exhorted, is wholly false and that the names of three persons were introduced only with a view to falsely implicate them. However, in our considered opinion, even if such an argument is accepted, the benefit thereof can accrue only to those accused against whom the role of exhortation has been attributed. Appellant no. 1 does not fall within that category, as the specific and principal role of firing has been assigned to him. Therefore, he cannot claim any benefit from the alleged falsity or exaggeration regarding the involvement of the co-accused.

34. The learned trial court has recorded conviction of the appellant in correct perspectives and the impugned judgment and order dated 25.01.1989 passed by the IInd Additional Sessions Judge, Saharanpur cannot be termed as perverse or against the evidence available on record. It is liable to be upheld and it is affirmed. The appeal lacks merit and is liable to be dismissed.

35. It is accordingly, dismissed.

36. Let a copy of this judgment be transmitted forthwith to the trial court as well as to the concerned Jail Superintendent for necessary information and compliance.

37. The learned Amicus Curiae shall be entitled to receive the fee as prescribed by the Government of Uttar Pradesh, which shall be paid expeditiously.

38. The lower court record be returned to the court concerned forthwith.

(Lakshmi Kant Shukla,J.) (Chandra Dhari Singh,J.)

July 16, 2026

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