IMPORTANT POINT
Conviction based on the dying declaration is legally sustainable although ultimately toximia had developed because of peritonitis when all such complications are directly attributable to the injuries suffered by the deceased by the gun shot in the hands of the accused.

Headnote:APPEAL AGAINST CONVICTION -Indian Penal Code, 1860-Section 302-Prosecution for offence under-Dying declaration recorded by Head Constable PW25-PW25 took statement from injured for registering a case-He genuinely made an attempt to get dying declaration recorded by a Magistrate-Magistrate being not available-Doctor attested statement recorded by PW25-Doctor satisfied himself about correctness of statement by putting questions to that effect to the injured-Eye witnesses stated that accused had fired a shot from the pistol from a close range-Such deposition gets corroboration from medical evidence and also from dying declaration-High Court rightly placed reliance on dying declaration on basis of which conviction against appellant is warranted-View taken by Sessions Judge in passing order of acquittal in favour of appellant is not a reasonable view-Judgment of conviction confirmed. (Paras 14 to 16)

JUDGMENT

G.N. Ray, J.-This appeal is directed against judgment dated 21.2.1984 passed by the Punjab and Haryana High Court in Criminal Appeal No. 691-DB of 1981. By the impugned judgment, the High Court has set aside the order of acquittal dated 27.5.1981 passed in favour of the appellant by the learned Additional Sessions Judge, Sirsa in Sessions Trial No. 59 of 1980 and has convicted the appellant Bhagirath, accused No. 1 in the Sessions Trial under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 20,000/- with a direction that if the fine was realised, it would be paid to the next heirs of the deceased as compensation.

2. The appellant and four other accused were committed to Sessions Trial No. 59 of 1980 for offences under Section 302 read with Section 34 IPC and section 120B IPC. The prosecution case in short was that on 29.5.1980 the accused Chhotu and Bhagirath hatched a conspiracy to murder one Nihal Singh and pursuant to such conspiracy, the accused had murdered Nihal Singh in 29.5.1980 in Mandi Dabwali. The accused Bhagirath was individually charged for offence under Section 302 IPC for causing the murder of Nihal Singh in the area Mandi Dabwali. According to prosecution case, at about 2.50 P.M. on 29.5.1980 PW 25,. Head Constable Dharambir of police station Dabwali received a telephone message from Dr. S. Gulati (PW 17) of Civil Hospital, Dabwali that Nihal Singh was admitted in the said hospital with gunshot injuries. Such message was entered in Daily Diary Roznamcha being Entry No. 19 (Ex. PJJ). Dharam Singh, H.C. of P.S. Dabwali (PW25) with constable Vijay Kumar (PW 10) came to the Civil Hospital at 3.10 P.M. and moved an application (Ex. PZ) for obtaining fitness certificates of the said injured and the doctor gave certificate that the injured was in a position to make statement (Ext. PA/1). The said Dharam Singh also requisitioned the service of S.D.J.M. Dabwali and S.D.M. (C) for recording dying declaration of the injured Nihal Singh. Dharam Singh recorded the statement of Nihal Singh (Ex. PAA). Nihal Singh in his statement stated that there was enmity between him and Chhotu. Chhotu and the accused Bhagirath were on a look out for Nihal Singh to get him murdered. On the date of incident at about 2 P.M., Nihal Singh was going to Dabwali Mandi after being free from Court and Sohan Lal (PW 19) and Manswarup were ahead of him and PW 20 Kishan Lal was following him. When Nihal Singh reached in front of the shop of Lekh Ram, tobacco dealer then the accused Bhagirath being accompanied by another person, whose description was given by Nihal Singh in his statement, was standing there. When Nihal Singh crossed Bhagirath, he fired a shot from a country made pistol at his back which hit him and when Nihal Singh turned around and raised a lalkara, Bhagirath and the person accompanying him had run away. Kishan Lal (PW 20) Sohan Lal (PW 19) and Man Swarup came running and Man Swarup and Kishan Lal brought Nihal Single to the civil hospital. After the statement was recorded by Dharambir, the same was read over to Nihal Singh and having admitted that the Statement was correctly recorded, Nihal Singh signed the said statement in presence of Dr. Gulati (PW 17). The said doctor also attested the said statement. Such statement was sent to the police station with the endorsement of the said Dharambir and on the basis of such statement, FIR (Ex. PAA/2) was recorded by PW 9 Gulzari Lal, a head constable. Prior to recording of the said statement by Dharam Singh, Dr. Gulati had prepared a ruqa (Ex. PY) at 3.10 P.M. and medico-legal report (Ext. PX) was also prepared at 4.00 P.M. However, the constable Vijay Kumar returned to the hospital at 4.45 P.M. with a report (Ex. PKK/1) that both S.D.J.M. and S.D.M.(C). were away.

3. The investigating officer took into possession of the shirt Ex. P5, and vest Ext. P6 of the injured from the said doctor and the sealed parcel of such shirt and vest is Ext

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1996 Supreme(SC) 1796

IMPORTANT POINTConviction based on the dying declaration is legally sustainable although ultimately toximia had developed because of peritonitis when all such complications are directly attributable to the injuries suffered by the deceased by the gun shot in the hands of the accused.

Cases Referred (3)

IMPORTANT POINT
Conviction based on the dying declaration is legally sustainable although ultimately toximia had developed because of peritonitis when all such complications are directly attributable to the injuries suffered by the deceased by the gun shot in the hands of the accused.