IMPORTANT POINT
Dying declaration - tests for relying upon restated.

JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal by the eight accused who were proceeded against in Crime No.397/97 in Sessions Case No.35/1998 in the Court of Second Additional Sessions Judge, District Kannauj, were charged and convicted for offences falling under Section 302 read with 149, 307 read with 149, as well as for offences under Sections 452, 148 and 147 IPC. All the accused were convicted and inflicted with the punishment of life imprisonment for the offence under Section 302 read with 149 IPC, 5 year rigorous imprisonment for the offence under Section 307 read with 149 IPC, 1 year rigorous imprisonment for the offence under Section 452 IPC, 6 months rigorous imprisonment for the offence under Section 148 IPC and 3 months rigorous imprisonment for the offence under Section 147 IPC.

2. The case of the prosecution as projected before the Court below was that 7 days prior to the date of occurrence there was some dispute between the children of the parties of the victim and the accused. A goat belonging to the accused persons stated to have gone into the maize field of the deceased Zahiruddin and when the son of the said deceased objected to that, he was caught by the father of the accused 1 to 6. When the deceased Zahiruddin came to know about the said conduct of Masook, father of the accused 1 to 6, he went and protested by questioning him as to how for the grazing of the maize crop by the goat belonging to Masook, the son of the deceased could be held in captivity. The said protest raised by deceased Zahiruddin was not liked by Masook and both stated to have abused each other. Pursuant to the said incident, on 05.09.1997 at about 3.00 pm, all the appellants-accused armed with country-made gun (Addhi) as well as country-made pistols and the first accused holding his gun, entered the house of the deceased where P.Ws.1 to 3 were conversing with the deceased, Zahiruddin and made indiscriminate firing towards the deceased and the other persons. The deceased, P.Ws.2 and 3 stated to have sustained firearm injuries and they raised alarm pursuant to which others rushed to the spot. The appellants stated to have escaped from the scene of occurrence after giving further threats.

3. The deceased and other injured were stated to have been brought to Kotwali Farrukhabad, where P.W.1 lodged the written complaint Ext. Ka-1. The crime was registered as Crime No.397/97, as was evident from the G.D. entry Ext.Ka-14. The Investigating Officer P.W.6 stated to have recorded the statement of the deceased Zahiruddin purportedly under Section 161 Cr.P.C under Ext. Ka-9. The injured along with the deceased stated to have been sent to the hospital where the injured persons including the deceased were examined by the doctor. The injury report of the deceased Zahiruddin was Ext. Ka-3, the injury report of P.W.2 was Ext. Ka-4 and the injury report of P.W.3 was Ext. Ka-2. The deceased Zahiruddin died on the next day, i.e. on 06.09.1997 at 3:30 pm. The inquest memo was Ext. Ka-15 and the postmortem report was Ext. Ka-5. P.W.4 Dr. Irfan Ahmad was the doctor who conducted the postmortem and issued the postmortem certificate. The Investigation was initially carried out by P.W.6 and was later on completed by P.W.8. The charge-sheet was Ext.Ka-12. P.W.2, the wife of the deceased suffered two injuries, while P.W.3, the niece of the deceased, suffered one injury. The deceased suffered as many as eight injuries. It was in evidence that all the injuries were due to gun shots. The distance between the place of occurrence and the police station was stated to be 20 kilometers. All the injured were examined by the doctor by 5:45 pm to 6.10 pm on 05.09.1997 itself. It is in the evidence of P.W.5, postmortem doctor that based on the injuries noted on the body of the deceased it could be stated that he was capable of speaking in spite of the injuries sustained by him. The prosecution examined P.Ws.1 to 9. Based on the evidence before the trial Court and