The dying declaration was found to be truthful and voluntary, and the medical negligence argument was deemed irrelevant. The court held the appellants guilty of the offence under Section 304 Part-I IPC, modifying the conviction and sentence.

Kailash Gambhir, J.

1. By this common order we propose to decide three appeals under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) preferred by Anil Kumar, Saravjeet Singh and Tilak Raj, respectively, challenging the judgment and order on sentence dated 07.10.1998 and 09.10.1998, whereby the learned Additional Sessions Judge, Delhi has convicted them under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to undergo imprisonment for life together with fine of Rs. 500/- each and in default thereof to further undergo rigorous imprisonment for a period of one month.

2. The case of the prosecution as it is unfolded in the chargesheet is as under:-

“On 06.09.1985 Duty Constable Sultan Singh informed the police that Shri Trilok Chand s/o Shri Santram had been admitted in the hospital in an injured condition by Mr. Ashoki, son of Shri Risal Singh. On this information DD. No. 30-A at P.P Prasad Nagar was recorded and copy of it was handed over to ASI Balbir Singh. Who went to hospital and obtained the MLC of the injured. Since doctor declared him fit for statement ASI Balbir Singh recorded his statement wherein he stated that he was residing at 1250, P.R Road, Delhi and was doing the work of tailoring. One Rajju was running a rationing shop and was his friend. About two weeks earlier Rajju had taken 1330/- Rs. From him, promising him to return them in 10 days. On that day he had gone to Satyam cinema to watch a show, at about 11:40 p.m raju and his friend who runs motor mechanical shop, tilak resident of Dev Nagar, Anil resident of Bapa Nagar, and Survjeet resident of Government quarters met him at the cinema. He asked Raju to return his money but raju asked him to come to Dev Nagar and them he would return his money. On that day at 07:30 p.m he after leaving his house was present at Rajram Kharoodewala at P.L.Road, a three wheeler scooter in which a boy aged 19/20 years was sitting and he told him that his friends are calling. On this he sat in the scooter and he was brought to subzi wala chownk Dev Nagar. At around 07:40, Raju with all his friends asked him that now tell what do you wasn’t, and in the meantime the auto left. All the accused persons started inflicting injuries on the deceased when he asked them to return money. When he cried and raised alarm, Mr. Ashoki brother in law of his elder brother came and removed him to Willington Hospital, in an auto rickshaw. All the accused person were known to deceased”.

3. To bring home the charges, the prosecution in all examined 25 witnesses. In their statements recorded under Section 313 Cr.P.C., all the accused denied their complicity in the crime and pleaded that they were falsely implicated in the case. In defence, the accused persons had examined 3 witnesses.

4. On behalf of Tilak Raj-appellant in CRL.A. 549/1998 and Saravjeet Singh- appellant in Crl.A.481/1998 arguments were addressed by Mr.K.B.Andley, Sr. Advocate duly assisted by Mr.M.L.Yadav, Advocate and on behalf of Anil Kumar-appellant in Crl. A. 456/1998, the arguments were addressed by Mr.Vikrant Sarin, Advocate. The State was represented by Mr. Sunil Sharma, APP for the State. Written submissions were also filed by the counsel for the appellants.

5. The contentions raised by both the counsel for the appellants were not much in variance except that in the case of appellant- Anil Kumar, one of the arguments raised by the counsel was that there was no recovery of any incriminating article from him during the disclosure statement. The main attack of both the counsel for the appellants, otherwise, was on the authenticity, genuineness and truthfulness of the dying declaration made by the deceased to ASI Balbir Singh- PW-18, who rushed to the Ram Monohar Lohia hospital (hereinafter referred to as “RML”) after information was received at Police Station-Karol Bagh vide DD No. 38 dated 06.09.1985 regarding the admission of an injured person-Tril