- (1.) NARESH aged about 21 years and his younger brother Shilo, alias Susheel aged about 19-20 years, hereinafter called Shilo, residents of Delhi Gate in the town of Ghaziabad, district Meerut have been convicted under Section 302/34 I. P. C. and sen tenced to suffer imprisonment for life for having caused the death of Ganga Ram aged about 26 years, son of Fateh Chand, P. W. I, on 2. 3. 1974 at about 7p. M. on the road infront of the shop of Radhey, Sweetmeet-seller at Delhi Gate, Ghazia bad. The learned 5th Additional Sessions Judge, Meerut, who tried the case did not place reliance on the testimony of the two eye-witnesses, Fateh Chand and Surajpal, P. Ws, 1 and 2. He recorded the conviction of the appellants on the basis of a dying declaration, Ex. ka. 11 recorded by Sri S. R. Yadav (P. W. 6), Magistrate First Class, Ghazia bad on 3. 3. 19744 at 1. 15 P. M. in M. M. G. Hospital, Ghaziabad in the presence of Dr. A. K. Uppal, P. W. 5, Medical Officer. In this appeal 2 legal points have been canvassed before us i. e. (1) Whether the dying declaration, Ex. Ka, 11 was admissible under Section 32 of the Evidence Act. and (2) whether the said dying declaration alone could be made basis of conviction. With regard to Shilo, the learned coun sel for the appellants further contended that he could not be convicted under Sec. 302 I. P. C. with the aid of Sec. 34. Facts giving rise to the abote 2 legal points are these. : On 2. 3. 1974 at about 6. 45 or 7. 00 P. M. , Ganga Ram, who was a railway servant, happened to pass infront of the shop of Radhey or Rajan, Sweetmeet-sellers at Delhi Gate. Four or five per sons were engaged, in gambling there. Ganga Ram asked them not to indulge in gambling in the market and advised them to do so in a street. NARESH told him to go away because he wanted to make money for liquor. Ganga Ram told him that he should not do so in the market. Thereupon NARESH grappled with him, took out a knife from his pocket and gave knife blows at his neck and side of the chest. Ganga Ram fell down. Shilo then attacked him at his back and hands with an iron rod, NARESH and Shilo then ran away. Ganga Ram was immediately taken to M. M. G. Hospital, Ghaziabad by his father Fateh Chand and brother Suresh Chand. Dr. A. K. Uppal examined him at 7. 10 P. M. and found 3 injuries on his person which are indicated below - 1. Incised wound 3"x 1/4" x muscle deep on the front of right side neck, bleeding present.
(2.) INCISED wound 1/4"x 3/10"x muscle deep on the right side neck. 1 /2" above injury on. ' 1. Incised wound 1" x 1/2" x depth not probed, on the front left side chest. 3" below the nipple at 6 o'clock position. Ganga Ram was admitted in the hospital and his injuries were kept under observation. Fateh Chand got a report of the occurrence written out by one Kameshwar in the Hospital. Then he went to police station Ghaziabad and lodged the report at 7. 35 P. M. in the presence of V. S. Chahar. S. I. , P. W. 3. He entered upon ivestigation. He prepared site plan of the place of occurrence. He took blood stained earth from that place. He reached the hospital. But he found the Ganga Ram was not able to give statement on the date of occurrence. On 3. 3. 1974 he again went to the hospital and found that Ganga Ram was in a fit state of giving statement. He interroga ted him and recorded his statement (copy Ex. Ka. 4 ). The condition of Ganga Ram deteriorated. Therefore, Fateh Chand desired to take him to Delhi hospital for treatment. Consequently Gana Ram was discharged from M. M. G. Hospital, Ghaziabad on 3. 3. 1974 at 12. 30 Hours. In the meantime Sri S. R. Yadav, Magistrate, was informed to record his dying declaration. Sri S. R. Yadav reached M, M. G Hospital at 1. 15 P. M. By that time Ganga Ram had not been removed from the hospital. Sri S. R. Yadav recorded his dying declaration, Ex. Ka. 11, in the presence of Dr. A. K. Uppal finding that he was in a state of giving statement. Thereafter Gunga Ram was taken to Sufdarganj hospital, Delhi in which he was admitted. He died in the said hospital on 10. 4. 1974 at 11. 50p. M. On 11. 4. 1974, Ram Singh, A. S. I. attached to police station Vijai Nagar, New Delhi, P. W. 8, held inquest on the dead body. Then on the same day at 5 P. M. , Dr. Bharat Singh Surgeon, Police Hospital, Delhi, P. W. 9, C3nducted Postmortem examination on the dead body of Ganga Ram. Following ante-mortem injuries were found :- 1. Healed scar 3" x 2/10" pinkish, over the front of neck, transverse above the thyroid cartilage. 2. Scar of wound 1/2" x 2/10", pinkish over the right angle of mandibale, horizontal. 3. Healed scar 1,1/2" x 2/10" over the left side chest in mid axillary line, 6" below the arm-pit, pinkish, angles tapering. Linear scar over the left para median line of abdomen, 7" long with rubber drainagetube at its upper end (operational), suture marks presnet in healing stage.
(3.) HEALED scar 1" x 3/10" over the left iliac fossa, tapering angle whitish to pinkish, transverse, Cut open marks over both angles.;