JUDGMENT

S.B. Sinha, J.

These criminal appeals arise out of a common judgment dated 8.12.2004 passed by a Division Bench of the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No.478 of 2002.

The appellants, along with one Syed Salim, were tried for commission of an offence under Section 302/34 of Indian Penal Code, 1860 ('IPC', for short) and were directed to suffer Rigorous Imprisonment for life. A fine of

a sum of Rs.3,000/- each was also imposed.

Abdul Karim (P.W.11), at the relevant point of time, was attached with Shivaji Nagar Police Station, Nanded as Police Inspector. He received an information at about 10.45 p.m. that an incident had occurred at Ashrafnagar. He went there in a police jeep and came to know that one Kayyum was injured in a quarrel, which took place between him and one Syed Shaukat. He came to learn that Kayyum was admitted in the Government Hospital. He went there and found him in the 'Out Patient Department' (OPD) in an injured condition. Before him a statement was made by Mohammed Shakeel (P.W.6) which was treated as a First Information Report.

Since the deceased, Kayyum, was operated, his statement could not be recorded immediately. P.W.11, however, went to the place of occurrence on the next day and recorded statements of some witnesses. He recorded the statement of one Rauf, who was present in the hospital. He also seized the blood stained clothes of the victim.

While in hospital, Kayyum gave three dying declarations one on 17.3.1999 before the attending physician, Dr. Kagane, who was examined as P.W.10. He gave a dying declaration before a Judicial Magistrate on 18.3.1999, which is very short one and is reproduced hereinafter :

"I. S.B. Shaikh, 4th Judicial Magistrate 1st class, Nanded will ask you few questions and you may answer those without any fear.

Q.1What is your name and where do you stay?

Ans.Shaikh Khayum s/o Shaikh Nabisab, r/o Ashraf Nagar, Nanded.

Q.2How did the incident take place?

Ans.I have been injured by weapons on 17.03.99 in front of the house of Shaukat by Shaukat, Saleem and others.

Q.3Who is responsible for the said incident?

Ans.The above mentioned people are responsible."

I have been read over the statement given by me and the same is correct.

Thumb impression of left hand"

Yet again, a dying declaration was made before the Investigating Officer on 19.3.1999, which is a detailed one. Therein, the deceased disclosed that he was running business of fissile stone in partnership with appellant-Arshad and he invested a sum of Rs.60,000/- in the said business. He, however, wanted the said amount back from Arshad. Although, he was assured thereabout, Arshad did not pay him back the same. He furthermore narrated two instances, one of which took place on 1.3.1999. While he was riding a two-wheeler, accidentally it dashed with the motorcycle of Syed Shaukat who was sitting thereupon drinking water. He started abusing him.

The matter was reported to the police station, but, on intervention of their parents no report was lodged and the matter was compromised. He narrated the second incident which took place on 17.3.1999 at about 6 O'clock when he and his cousin Mohammed Rais were going to the hotel 'Sailani' together, Syed Shaukat was standing in front of his house and asked as to why he had been looking at him, to which he replied in the negative. Shaukat, allegedly, threatened him saying that that was his last day and asked him to do whatever he could. He went to hotel 'Sailani' and thereafter reported the matter to the police station of Shivajinagar. He came back to the hotel and discussed the matter with his friends. He, thereafter, having thought that his mother must be worrying, went to his house to tell about the incident to his family members. While returning from the hotel, when he reached in front of a mutton shop, Syed Salim (absconding) came on the road and asked him to wait and as soon as he stopped his motorcycle, he, allegedly,