Harjit Singh Bedi, J. - (1.) The facts leading to the filing of these appeals are as under: 1. On the 20th May 2000, Fateh Mohammad deceased, Mohammad Shamoon PW-1 and his elder brother Wali Mohammad PW-2 were on their way to Court for appearing in a case. They got down from the bus at about 11.15 a.m. at Mawana Bus Stand, Meerut and moved on towards the Courts and as they reached near the office of the Bus Union, Yaqoob and Manabbar and Qasim sons of Khuda Bux, Qasim son of Sanabbar and Zuber son of Manabbar, all residents of village Bisola, Police Station Evoli, armed with country made pistols, started firing at Fateh Mohammad. Mohammad Shamoon and Wali Mohammad ran towards the Sardhana Bus Stand to save their lives and in the meanwhile the assailants ran away from the spot. Fateh Mohammad, seriously injured, was admitted to Jaswant Rai Speciality Hospital, Saket, Meerut by Mohammad Shamoon and was examined by Dr. Anil Kapoor PW.4 at 11.35 a.m. Mohammad Shamoon thereafter lodged a report at about 12 noon at Police Station, Civil Lines, Meerut at a distance of two furlongs from the place of incident. Sub-Inspector Dhani Ram Arya PW.11 also visited the hospital and recorded the statement of the injured and the other witnesses including Wali Mohammad. He also moved an application for recording the dying declaration of Fateh Mohammad which was duly recorded on the 21st May 2000 at 8.15 p.m. by Shri Rajdev Singh, Additional City Magistrate, Meerut in the presence of Dr. Narender Trivedi PW.6. The Sub Inspector also visited the place of incident and made the necessary enquiries. Fateh Mohammad succumbed to his injuries on the 25th May 2000 and on receiving this information Sub-Inspector Subhash Chaudhary PW.5 reached the hospital, drew up the inquest proceedings and sent the dead body for its post-mortem examination. The case was also converted from one under Section 302 to 307 of the IPC. On the completion of the investigation, a charge-sheet was filed with respect to Manabbar, Qasim and Zuber as Yaqoob had, in the meanwhile, absconded. The prosecution placed primary reliance on the evidence of the two eye witnesses, Mohammad Shamoon PW 1 and Wali Mohammad PW 2. Dr. Anil Kapoor PW 4, who had examined Fateh Mohammad on 25th May 2000 at 11:30 a.m., Dr. N. Trivedi PW-6, who had certified Fateh Mohammad as being fit at the time of the reading of the dying declaration, Shri Rajdev Singh PW-10 aforementioned, Dhani Ram Arya PW 11 the police officer who had recorded the first dying declaration of Fateh Mohammad as a statement under Section 161 of the Cr.P.C. in the case diary, Dr. N.K. Gupta PW 3, who had conducted the autopsy on the dead body and had opined that death had been caused due to Septicemia and shock as a result of ante- mortem injuries and Sub-Inspector J.S. Pundhir PW 9, who had investigated the case under Section 302 of the IPC and had recovered two country made pistols at the instance of Qasim and Zuber accused. The accused in their statements under Section 313 of the Cr.P.C. denied all allegations and pleaded false implication. They also produced some witnesses in defence and in particular DW1 V. Roy a Ballistic expert, who deposed that if a bullet was left embedded in the body it could result in Septicemia. The trial court relying on the aforesaid evidence convicted the accused for an offence under Section 307 of the IPC and sentenced them to rigorous imprisonment for 4 years and fine of Rs. 5,000/- each but acquitted them of the offence under Section 302 of the IPC. Two appeals were filed in the High Court, one by the accused-appellants and the other by the State Government challenging the acquittal of the accused for the offence under Section 302 of the IPC. The High Court by the impugned judgment dated 8th August 2007 dismissed the appeal filed by the accused but allowed the State appeal and convicted the accused- appellants for the offence punishable under Section 302/149 of the IPC and sentenced them to undergo imprisonment for life. It is in this background that the matter is before us at the instance of the accused.
(2.) Mr. Sushil Kumar, the learned senior counsel for the appellants has raised four arguments in the course of the hearing. It has first been submitted that the first dying declaration recorded by PW Dhani Ram Arya of Police Station, Civil Lines, Meerut in the Jaswant Rai Specialty Hospital did not bear the signature of the deceased or the endorsement of a Doctor as to the fitness of the injured and no credence could thus be attached to it. It has also been submitted that the second dying declaration recorded in the hospital by Shri Rajdev Singh, Additional City Magistrate, Meerut on the 21st May 2000 had not been properly endorsed by the Magistrate and did not satisfy the tests or instructions laid down relating to the recording of dying declaration and as the endorsement of the Doctor did not reveal the medical condition of the injured, this too was unreliable and could not be relied upon. For these assertions, the learned Counsel has placed reliance on Balak Ram v. State of U.P., (1975) 3 SCC 219 and K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) 3 SCC 618. It has, in addition, been submitted that as per the evidence on record the victim Fateh Mohammad had been admitted in the hospital not by Mohammad Shamoon PW 1 but by J.S. Pundhir PW 9 a Police Officer as per the statement of Sub-Inspector Subhash Chaudhary PW 5 and this by itself made it apparent that the two eye witnesses had not been present at the spot and had been called long after the incident. It has finally been submitted that from the medical and the other evidence it was clear that the appellants were, if at all, guilty for the offence under Section 307 of the IPC, as held by the trial court and not under Section 302 of the IPC, as held by the High Court, and for this additional reason the appeal was liable to succeed.
(3.) The learned State counsel has, however, controverted the stand taken by Mr. Sushil Kumar. It has been submitted that even assuming that there was some flaw in the recording of the first dying declaration by D.R. Arya, no serious objection could be raised with regard to the second dying declaration recorded by the Executive Magistrate. It has, further been submitted that the very promptness in the recording the FIR belied the argument that the eye witness had been brought to the scene long after the event. It has also been argued that the evidence of Dr. N.K. Gupta PW3 would indicate that the injuries suffered by Fateh Mohammad were the immediate and proximate cause of death and merely because there was a time lag between the injury and death would not make any difference in so far as culpability of the appellants for the murder was concerned.;