M. P. THAKKAR, J. ( 1 ) ONE Popat Savji a 35 year old villager from village Mekhatimbadi which is at a distance of about two kilometres from Upleta Town left on a motor cycle with milk cans in order to supply milk at Upleta. It is th Prosecution case that after he had proceeded on the Highway and had covered some distance five persons assaulted him. Four of them were armed with iron shod sticks and one of them was armed with an axe. As many as 23 injuries were inflicted on Popat. One injury was inflicted on his head two on his right upper arm two on his left upper arm one on the chest one on the back six on the right leg and eight on the left leg. A number of multiple fractures were caused and there was profuse bleeding. It is the prosecution case that P. W. 2 Thakarshi and P. W. 3 Bavanji who also belonged to the same village happened to reach the spot where Popat was being attacked and had witnessed the incident and had identified the assailants They stopped a State Transport Bus which was going on the Highway and removed Popat to the Cottage Hospital at Upleta. It is alleged that P. W. 13 Head Constable Isa Musa who had gone to the hospital on being informed about the incident had recorded the statement of Popat Savji in the Emergency Room where be was under treatment. P. W. 4 Dr. Bhartiben Doshi was of the opinion that it was necessary to administer blood transfusion to Popat. As the requisite facilities were not available at the Hospital she advised the removal of the patient to Jamnagar. Popat was being removed in a Mini Municipal Bus from Upleta to Jamnagar Hospital. On the way to Jamnagar Popat succumbed to the injuries in the bus at about 12-30 noon. His dead body was brought back to Upleta. In connection with this incident respondents accused Nos. 1 to 5 were tried by the learned Additional Sessions Judge Rajkot at Gondal in Sessions Case No. 11 of 1977. The learned trial Judge by his judgment and order dated 14/12/1977 acquitted the accused of the offences with which they were charged namely offences under secs. 147. 148 302 read with sec. 149 of the Indian Penal Code. There were individual charges against accused No. 1. The learned trial Judge by his judgment and order dated 14/12/1977 acquitted the accused of the offences with which they were charged namely offences under secs. 147. 148 302 read with sec. 149 of the Indian Penal Code. There were individual charges against accused No. 1. for an offence under sec. 302 of the Indian Penal Code against accused No. 2 for an offence under sec. 326 of the Indian Penal Code and against accused Nos. 3 4 and 5 for an offence under sec. 325 of the Indian Penal Code. The accused were acquitted of these individual charges as well. The aforesaid order of acquittal rendered by the learned trial Judge has been called into question by the State of Gujarat by way of the present appeal. ( 2 ) IN regard to a dying declaration as usual the two questions which are required to be resolved are: (1) Whether it is genuine and (2) whether it is true. In so far as the first aspect is concerned if the evidence of P. W. 4 Dr. Bhartiben is considered to be trustworthy there is no escape from the conclusion that the dying declaration as per Exh. M/s was made by Popat Savji in the emergency room of the hospital in the presence of Dr. Bhartiben and was recorded by P. W. 13 Head Constable Isa Musa. The evidence of P. W. 4 Dr. Bhartiben must therefore be closely and carefully scrutinised from this perspective. ( 3 ) BEFORE travelling to the question as to whether the said dying declaration is true we must deal with certain points made by the learned Defence Counsel in regard to the dying declaration. The first point made by him was that it was not recorded in the form of question and answer. Be it realised that the dying declaration was not being recorded by the Executive Magistrate. It was being recorded by the Head Constable who had rushed to the hospital on being informed about the medico legal case and about the fact that a seriously injured person was under treatment at the hospital and it had become necessary to record his statement. It is not necessary that dying declaration must be always recorded in the form of question and answer. It is not necessary that dying declaration must be always recorded in the form of question and answer. It would be desirable to do so but if that is not done by itself it is not a circumstance which would justify throwing the dying declaration in the dustbin. An argument was also advanced by the learned defence counsel that the dying declaration should not be accepted in view of the fact that the relatives of the deceased had come to the hospital and were near about the cot of the deceased. So far as the evidence goes the evidence of P. W. 4 Dr. Bhartiben clearly establishes that at the point of time when the dying declaration of Popatbhai was recorded no relatives were present in the emergency room wherein Popat was lying when his statement was recorded. In fact her evidence shows that till the point of time the statement was recorded no relative was contacted but assuming that some relatives had arrived at the hospital and were near the cot of the injured person at the time when the dying declaration was recorded that can by itself scarcely be considered as a good or a valid ground for discarding the dying declaration. It is difficult to conceive of a case where relatives would not rush to the hospital and go near the injured person if they are in the same town and come to know of the injuries caused to their near and dear ones. In almost every case relatives are bound to rush to his bedside. Unless the Court is prepared to virtually hold that a dying declaration is practically speaking not a relevant piece of evidence at all and no dying declaration can form the basis of a finding of guilt the Court cannot countenance the argument that merely because the relatives are there the dying declaration should be disbelieved. To do so would tantamount to saying that a dying declaration is practically speaking a worthless piece of evidence. No doubt the presence of relatives in the context of the possibility of tutoring is a relevant consideration. It is one thing to say that it is a relevant consideration and if the Court has reason to believe that the dying declaration owes its origin to tutoring it may be disregarded. No doubt the presence of relatives in the context of the possibility of tutoring is a relevant consideration. It is one thing to say that it is a relevant consideration and if the Court has reason to believe that the dying declaration owes its origin to tutoring it may be disregarded. It is another to say that merely because the relatives are present and there is such a remote possibility it should be disbelieved. There are two conceivable situations (the test is not meant to be exhaustive) in which the presence of relatives may give rise to a reasonable belief that tutoring may have taken place and the dying declaration may not be true. (1) Such an argument can be advanced in a given case when the conditions of visibility at the time of the occurrence were such that the victim could not have identified the assailants. In such a case the victim may not know the identity of the assailants. And then he would be faced with a temptation to implicate those against whom he has enmity or those against whom he entertains suspicion by reason such enmity at the instance of his relatives. (2) Another conceivable case is where the relatives lodge a FIR naming the culprits on the mere basis of suspicion while the victim is unconscious and the victim comes to be questioned after the names of the alleged assailants are disclosed in the FIR. In that case the victim may be faced with the situation where the names of suspects have already been disclosed and if he does not know the identity of the assailants by reason of the fact that he was not able to identify them on account of darkness or on account of lack of opportunity he may fall in line and implicate the persons already named. In such cases it would be permissible to make an approach of suspicion in order to doubt the dying declaration with scepticism on the ground that the relatives had come near the victim or had an opportunity to tutor the injured person. In such cases it would be permissible to make an approach of suspicion in order to doubt the dying declaration with scepticism on the ground that the relatives had come near the victim or had an opportunity to tutor the injured person. Merely because the relatives were in the hospital near about the injured person it would not be reasonable to draw the inference that the injured person did not know the names of the culprits or had not been able to identify the culprits and was implicating the persons named in the dying declaration only on account of suspicion or tutoring. We are therefore unable to accept this argument. We may mention that such an argument was advanced in the case of Habib Usman Appellant v. The State of Gujarat Respondent reported in A. I. R. 1979 Supreme Court 1181 and the Supreme Court had an occasion to observe that merely because some friends and relatives happened to be with the deceased before the statement was recorded the statement cannot be thrown out as tutored. So also the argument that the dying declaration should be thrown overboard on the ground that it is recorded by a Police Constable because he happened to arrive there immediately in obedience to the duty cast on him by law cannot be accepted. The Police Constable had no personal animosity against the accused. He would not have even known the names of the accused so as to enable him to fabricate the dying declaration. A similar argument was advanced in the Supreme Court in the case of Tehal Singh and Others Appellants v. State of Punjab Respondents reported in A. I. R. 1979 Supreme Court 1347 wherein a dying declaration was recorded by the Head Constable who had recorded the answers given by the injured victim in his own language. Even in such a situation the challenge thrown to the genuineness of the dying declaration was repelled by the Supreme Court. ( 4 ) GENUINE yes but is it also true ? We are immediately faced with this question. By and large inter alia the following three tests can be devised in order to answer the question whether it is true : (1) Was the victim in a position to identify the assailant ? (2) Whether the version narrated by the victim is intrinsically sound and accords with probabilities ? We are immediately faced with this question. By and large inter alia the following three tests can be devised in order to answer the question whether it is true : (1) Was the victim in a position to identify the assailant ? (2) Whether the version narrated by the victim is intrinsically sound and accords with probabilities ? (3) Whether any material part emphasis being laid on material part is proved to be false by other reliable evidence ?on probabilities we are not shown any good ground to doubt the truthfulness of the version narrated by Popatbhai. The incident occurred between 5-45 and 7-00 a. m. in the month of May. The visibility would therefore be sufficiently good to enable the victim to identify the assailants. The accused belonged to the same village namely Mekhatimbadi. They were known to the victim. If therefore he was assaulted by persons from his own village who had enmity with him in day light at about 6-45 or 7-00 a. m. his statement cannot be faulted on the score of probabilities. In fact on probabilities it would be difficult to comprehend a situation where a victim of such a serious assault (in the course of which assault fractures were caused on both the legs and both the hands and as many as 23 injuries were inflicted) would open the door of escape for the real culprits and rope in those with whom there were some chapter case proceedings or with whom there was some animosity. (It appears that there was some animosity on account of the grazing of the cattle by the Rabaris in the fields of the Patels and in connection with a theft which took place in a temple in respect of which suspicion was thrown on some of the accused perhaps at the instance of Popatbhai ). Would it be reasonable to hold that when such an attack occurred in the early morning in good day light and the victim had identified the assailants he would fail to implicate the real culprits and would involve those who had not caused him any hurt but against whom he had some hostility. When he had suffered such serious injuries at the hands of the assailants the flash point of his anger would be directed against the real culprits. When he had suffered such serious injuries at the hands of the assailants the flash point of his anger would be directed against the real culprits. Must one be placed in a similar situation in order to realize that in the midst of intense pain and suffering with death within sight he would not invent a false story to exonerate the author of the pain and suffering and to inculpate some others with whom he had some hostility ? That such argument is advanced cannot be helped. That it is accepted by the learned trial Judge is something which causes us distress and dismay. We on our part do not have a moments hesitation in rejecting the same. In our opinion if the version narrated by Popat is tested on the touchstone of probabilities it stands to reason to hold that he had implicated those persons whom he had identified as assailants and not persons who had no hand in the assault merely because there was some past chapter case proceedings or other animosity. Thus there is no infirmity in the version narrated by Popatbhai in the dying declaration. ( 5 ) THE last ground which commended itself to the learned trial Judge in the light of the submission urged before him was that Popatbhai had three previous occasions to name the assailants before his dying declaration was recorded and yet he had failed to do so. This argument has also been reiterated before us by the learned defence counsel. We must therefore deal with it at this stage. The argument is advanced in the context of the fact that Popatbhai did not disclose the names of the assailants before P. W. 5 Lavji who removed him in the S T. Bus to the hospital. It will be recalled that P. W. 2 and P. W. 3 had stopped the S. T. Bus being driven by P. W. 11 Ratilal Ravanbhai on the Highway and had made a request to remove the injured person in the said bus. P. W. 5 belongs to the same village namely Mekhatimbadi and he was travelling by the same bus His evidence shows that upon the bus being stopped by P. W. 2 and P. W. 3 he had got down from the bus and at their request had removed Popat to the hospital in the bus. P. W. 5 belongs to the same village namely Mekhatimbadi and he was travelling by the same bus His evidence shows that upon the bus being stopped by P. W. 2 and P. W. 3 he had got down from the bus and at their request had removed Popat to the hospital in the bus. Popatbhai was lying in an injured condition on the road. He was removed to the bus and he was taken to the hospital at Upleta in the said bus. From the bus he was removed in a stretcher to the hospital. It appears that under cross-examination he was asked whether Popat Savji had named the assailants. The witness has stated in paragraph 2 under cross-examination that Popat was not saying anything and that though he had questioned Popat he had not given any reply. The relevant passage from the evidence may be extracted for the sake of preciseness: (Popat Savji was not speaking. We had asked him but he did not reply. We had asked him what had happened but he did not reply.)THIS is the basis of the argument that Popat had an opportunity to dis- close the names of the names of the assailant to P. W. 5 Lavji and yet he had not done so. Now we must visualize the physical condition of Popat before we condemn him on this ground. We have already indicated the nature of the injuries caused to Popat. As many as 23 injuries were inflicted on him. Serious blows were inflicted on both his legs and both his arms and he had sustained fractures on the legs and both the arms. His statement shows that thereafter he had become unconscious. He was profusely bleeding. What can a person in such a physical condition be expected to do ? He might be writhing with terrible pain. Would he be in mood to communicate with others ? Should we expect him to anticipate his future death and the future trial of the accused on the charge of his murder and to name the accused ? What would be his stale of mind ? What would be his mood ? A person in his condition would scarcely respond to such inquiries. His whole attention would be focussed on the pain and misery suffered by him. What would be his stale of mind ? What would be his mood ? A person in his condition would scarcely respond to such inquiries. His whole attention would be focussed on the pain and misery suffered by him. He would not be in a mood to satisfy the curiosity of persons making such inquiries and to quench their thirst for information. He would be looking forward to being treated so that his pain suffering and misery may be alleviated to some extent. And pray what was the purpose in informing Lavji as to who were the assailants ? Of course if such a question were put by a Police Officer he might realise the importance and may answer. The second dimension of the matter is that the aforesaid extract from the evidence of P. W. 5 clearly shows that Popat had not given any answer. It would have been a different matter if Popat had said that he did not know the names of the assailants. Then the criticism would have been justified. But to condemn him because he did not strain himself to give replies to satisfy the curiosity of Lavji on the score of what had happened to him is to evince the height of unreasonableness. We are therefore not prepared to find fault with the dying declaration on this ground. As we have repeatedly pointed out earlier the learned trial Judge has not made any methodical approach and has failed to discuss the various factors so that we can deal with his findings appropriately. We have therefore to fall back upon extracting the stray patches from his judgment in order to deal with the point. The argument on the score of failure to disclose the names of the assailants on the three occasions has been deals with by the learned trial Judge in paragraph 18 of his judgment as under :it was argued by Mr. Budhbhatti that the injured had the occasion to make statement at the time when Thakersey and Bawanji had approached him but no such statement was made. He then argued that the injured had the scope to make the dying declaration in the bus before the passengers or at least he could have informed Lavji Khimji Bawanji Narad but he did not make any statement It was then argued by Mr. He then argued that the injured had the scope to make the dying declaration in the bus before the passengers or at least he could have informed Lavji Khimji Bawanji Narad but he did not make any statement It was then argued by Mr. Budhbhatti that the injured could have made statement to the lady doctor giving the names of the assailants. He therefore argued that the injured had the occasion thrice to make the statement but no attempt was made and therefore the so called dying declaration is not believable and cannot be accepted. Mr. Budhbhatti referred to me a case reported in K. Ramachandra Reddy v. Public Prosecutor 1976 (Vol. IV) Cr. Law Reporter (Supreme Court) page 286. Their Lordships have referred to various decisions of the Honble Supreme Court laying down the principle regarding the reliability of the dying declaration which is admissible under sec 22 of the Evidence Act. Their Lordships have narrated three occasions which were available to the injured for making the statement. In our case also the injured had not made statement to anybody prior to the dying declaration was recorded. Their Lordships have narrated three previous occasions in paras 9 10 and 11 of the judgment and in para 12 Their Lordships have observed that from the evidence discussed above it clearly establishes that although the deceased was conscious at the place of occurrence at the time when he was put on the lorry and also at the time when he was brought to the Nursing Home and was in a position to speak he did not disclose the names of the assailants to anybody. Their Lordships have observed that this conduct of the deceased can explain only on two hypotheses namely either the deceased was not conscious at all and was not in a position to talk to anybody or that even though he was conscious he did not disclose the occurrence to anybody because under the stress and strain of the assault which took place admittedly at the time when darkness had set in and there was very little moonlight he was not able to identify the assailants. In this case the incident had happened at about 7-00 a. m. or so. Here the question of darkness will not arise. In this case the incident had happened at about 7-00 a. m. or so. Here the question of darkness will not arise. The fact remains that he did not disclose on three different occasions and the only inference that can be drawn is that he had not identified the assailants. ( 6 ) IT will be seen that the second occasion which the learned trial Judge has in mind is the so called opportunity which he had of disclosing the names of the assailants to the passengers in the bus Does the argument deserve any serious notice ? Obviously not. We have already discussed the physical and mental condition of Popat at the material time. Do we expect him to stand up in the bus and to make a declaration to the passengers of the bus as to what had happened ? Which then was the opportunity which has been missed by the victim ? We need not reiterate what we have observed in the context of this argument a short while ago Suffice it to say that it would be extremely unreasonable to make a sceptical approach to the dying declaration on such flimsy grounds. The learned trial Judge has referred to the case of K Ramachandra Reddy v. The Public Prosecutor reported in 1976 (Vol. IV) Cr. Law Reporter (Supreme Court) page 286 which has been cited before us as well. The learned trial Judge himself has given the answer to the argument based on that decision when he has evinced awareness of the fact that the incident which gave rise to the prosecution in the case decided by the Supreme Court occurred on a dark night after midnight whereas the incident in the present case occurred at about 7-00 a. m. in good day light When the incident occurred on a pitch dark night and there was every possibility of the victim having failed to identify the assailants the dying declaration was required to be viewed in a different perspective. Be it also realised that the Supreme Court has not laid down any absolute proposition in K. Ramachandra Reddys case that if an injured patient writhing in pain does not narrate to everyone he meets the incident or the names of the assailants the dying declaration may be scuttled. Be it also realised that the Supreme Court has not laid down any absolute proposition in K. Ramachandra Reddys case that if an injured patient writhing in pain does not narrate to everyone he meets the incident or the names of the assailants the dying declaration may be scuttled. The decision in the aforesaid case is rested on the facts of that particular case and the learned trial Judge has read into the judgment something which has not been said by the Supreme Court therein. The learned trial Judge has read a principle into the said judgment when no such principle has been laid down therein. We need say no more about it. ( 7 ) IT was lastly contended that Popatbhai had not named the assailants before P. W. 4 Dr. Bhartiben when she admitted the injured as an indoor patient and commenced treatment. No doubt the manes of the assailants are not recorded in the case paper but then it must be realised that the case paper is prepared by a doctor and not by a Police Officer. The only purpose of eliciting the history on the part of the doctor is to find out whether it was a medico legal case or otherwise. She is not a Police Officer concerned with the question of detecting of the crime or investigating the offence. And P. W. 4 Dr. Bhartiben has frankly stated in paragraph 4 of her deposition that We never asked the patient about the names of the assailants. What then is improbable in it ? What then is there to arouse suspicion about the dying declaration? In fact if the defence is to be believed Dr. Bhartiben was hand in glove with the Patels of the village and had gone to the extent of concocting the dying declaration at Exh. M/s. If that was so nothing prevented her from mentioning the names of the assailants in the case papers as well which could also have been concocted. The point of the matter is that the doctor is concerned with taking of the history with a different perspective namely as to whether or not it is a medico legal case. The doctor is not concerned with the problem of detecting the offender. The point of the matter is that the doctor is concerned with taking of the history with a different perspective namely as to whether or not it is a medico legal case. The doctor is not concerned with the problem of detecting the offender. Again the uppermost thought in the mind of the doctor would be to complete the formalities in the shortest possible time and to commence the treatment of the patient. A doctors main function is to alleviate suffering and to save lives not to investigate the offence or to satisfy the curiosity as to who had assaulted the injured person. And the dying declaration itself shows that after sustaining the serious injuries for some time he had become unconscious. The evidence of Dr. Bhartiben shows that after he was admitted he had administered injections of Dexona and Mephantine in order to stabilise the blood pressure. She was thus concerned with stabilising the condition of the patient. It would be unreasonable to expect Dr. Bhartiben to interrogate him about the names of the assailants. That was the function to be discharged by the Police Officer and she has done what was expected of her by summoning the Police Officer who had come there on being informed of the incident and recorded the dying declaration in the presence of Dr. Bhartiben. ( 8 ) THUS each and every criticism levelled against the dying declaration is found to be worthless. We therefore feel satisfied that the dying declaration is genuine and true. As observed earlier the finding recorded by the learned trial Judge on this score is perverse and it must therefore be upturned unhesitatingly. [his Lordship after discussing the evidence further observed as follows :] ( 9 ) IN the result we allow the appeal partly and set aside the order of acquittal rendered by the learned Additional Sessions Judge as against respondents accused Nos. 1 to 5. We convict each of the respondents accused Nos. 1 to 5 for an offence under sec. 326 read with sec. 149 of the Indian Penal Code. We also convict each of the respondents accused Nos. 1 to 5 for an offence under sec. 148 of the Indian Penal Code. We also convict each of the respondents accused Nos. 1 and 2 for an offence under sec. 326 of the Indian Penal Code. 326 read with sec. 149 of the Indian Penal Code. We also convict each of the respondents accused Nos. 1 to 5 for an offence under sec. 148 of the Indian Penal Code. We also convict each of the respondents accused Nos. 1 and 2 for an offence under sec. 326 of the Indian Penal Code. The acquittal of the respondents for the rest of the offences is not disturbed. .