Judgment N.N.Sharma, J. 1. HARI alias Satya Pal, son of Qabool Singh, aged about 26 years, resident of village Baruki, Police Station Bhopa, district Muzaffarnagar has filed this appeal against his conviction under Section 302 of the Indian Penal Code by Sri Hukam Singh on 17-2-1981 in Sessions Trial No. 288 of 1979 ; appellant was sentenced to imprisonment for life. 2. PROSECUTION story briefly stated is that on 6-6-1979, deceased Phool Singh, a co-villager of appellant, aged about 25 years returned to his village at about 6.00 P. M. or so. He alighted from the bus along with Vikram (PW 1), Vedu (PW 2), Parmanand and Peeru at the bus stop of their village as all of them had gone to Muzaffarnagar City for shopping on that day appellant accosted Phool Singh victim on the way running north-south towards east of primary school; when deceased enquired about the matter, appellant whipped out a country made pistol and fired a shot from close range hitting the victim on his abdomen ; victim fell down; appellant ran towards south-east and could not be over-taken by witnesses aforesaid despite a hot chase; while he was being carried in an injured state on horse-cart of Brahm Singh (PW 12), deceased was again attacked by appellant on the way in presence of Mohar Singh (PW 13) and Kallu etc.; however, the shot missed its aim and appellant escaped on the arrival of village Pradban and Yash Pal etc. Victim dictated report Ext. Ka-3 to Mahendra Singh (PW 6) about the occurrence and made it over at police station in the same night at 10.10 P. M. Distance of Police Station from the scene of occurrence was about six miles. On the basis of this report, first information report Ext. Ka-6 was drawn by Head Constable Daulat Ram (PW 8) at Police.station and the case was registered in the general diary Ext. Ka-7 under Section 307 of the Indian Penal Code. 3. THE injured was sent for medical examination by investigator Sri Surendra Singh (PW 16). He was medically examined at 1100 P. M. in the same night by Dr. S. R. Royal (PW 10) in Bhopa dispensary vide injury report Ext. Ka-8 which runs as below :- "1. Nine gun shot entry wounds in an area of 8 cm x 7 cm each apart 1 cm to 2 cm. He was medically examined at 1100 P. M. in the same night by Dr. S. R. Royal (PW 10) in Bhopa dispensary vide injury report Ext. Ka-8 which runs as below :- "1. Nine gun shot entry wounds in an area of 8 cm x 7 cm each apart 1 cm to 2 cm. THE measurement of each wound was 1 cm x 1 cm. THE injury was on the right side of the abdomen in 10'O clock position. THE margins of the wounds were inverted and were irregular. Blackening was present around the wounds. THE shirt and the under-shirt worn by the deceased had holes upon them. THE injury Was 7 cm above and right side of the umbilicus. THE injury had been kept under observation and X-ray had been advised. THE injured had been referred to the District Hospital, Muzaffarnagar. THE injury received was caused by gun shot vide Ext. Ka-8." 4. DOCTOR opined that the aforesaid injury could have been sustained by him at about 8.00 P. M. on that evening. The victim was admitted in District Hospital, Muzaffarnagar on 7-6-1979 when his dying declaration was recorded at 9.20 A. M. by Sri N. P. Asthana, City Magistrate (PW 9); declarent was found fit to make a declaration by Dr. J. N. Mathur (PW 4) who certified about it vide Ext. Ka-1. This declaration was signed by victim and is Ext. Ka-1/1. The victim succumbed to his injuries in Pyare Lal Sharma Hospital, Meerut on 11- 6-1979. 5. POST-mortem-examination was conducted by Dr. S. C. Goyal (PW 5) on 12- 6-1979 at 3.30 P. M. vide Ext, Ka-2 which runs as below "The deceased was aged about 25 years and nearly 24 hours had passed since his death. Rigor mortis was found present in the entire body and he had noted down the following ante-mortem injuries on him :- 1. Stitched wound 27 cm long having 22 stitches slightly right to the umbilicus. 2. Drainage tube was present on the right side of the abdomen. 3. Nine gunshot entry wounds in an area of 7 cm x 6 cm, nearly 4 cm above the umbilicus. Every entry wound was 1/2 cm x 1/2 cm x abdominal cavity deep. 4. Incised wound 3 cm x 1 cm x abdominal cavity deep on the left side of the umbilicus in 10'O clock position. 6. 3. Nine gunshot entry wounds in an area of 7 cm x 6 cm, nearly 4 cm above the umbilicus. Every entry wound was 1/2 cm x 1/2 cm x abdominal cavity deep. 4. Incised wound 3 cm x 1 cm x abdominal cavity deep on the left side of the umbilicus in 10'O clock position. 6. SEVEN pellets had been recovered from the abdomen of the deceased Phool Singh which had been sealed by the witness in a bundle. Those pellets were Ex. 1. The inner examination disclosed that the peritoneum, bladder and duodenum were stitched and the intestines were joined to each other. Colostomy of the deceased Phool Singh had also been carried out and his liver was also stitched. The cause of death was shock and haemorrhage and the postmortem report prepared and signed by the witness was Ex. Ka-2. 7. ON completion of investigation, appellant was sent up to stand his trial. 8. APPELLANT denied his participation in the occurrence and alleged his implication to party faction. He examined Biley Ram (DW 1) and Himanchal (DW 2) in support of the suggestion that the victim sustained injuries at his compact holding on that night at the hands of unknown assailants. 18 witnesses were examined by prosecution in support of its case. 9. EYE witnesses relating to the second incident which occurred on the way while injured was being carried to the Police Station was not made out as the witnesses turned hostile. However, learned Judge believed the main incident which was vouched by Vikram (PW 1), Vedu (PW 2) and Khube Ram (PW 3) and evidenced by written report Ext. Ka. 3 and dying declaration Ext. Ka-1/1. Thus the conviction and sentence were recorded. 10. We have heard Sri D. Wali, learned Advocate for appellant and Sri Jitendra Prakash, learned counsel for the State and carefully perused the record. Mr. Wali attacked ocular testimony on the ground that PW 1 Vikram and PW 2 Vedu did not testify that they had seen appellant actually shooting the victim with a country made pistol; a similar statement was made by Khube Ram (PW 3) ; names of these witnesses did not occur in the dying declaration of deceased recorded by Magistrate, Ext. Wali attacked ocular testimony on the ground that PW 1 Vikram and PW 2 Vedu did not testify that they had seen appellant actually shooting the victim with a country made pistol; a similar statement was made by Khube Ram (PW 3) ; names of these witnesses did not occur in the dying declaration of deceased recorded by Magistrate, Ext. Ka-1 Vikram (PW 1) and Vedu (PW 2) at the time of heir interrogation did not allege that they saw the appellant for the first time while he was standing with a country made pistol in his hand though in their statements before the learned trial judge, they claimed to have seen the appellant holding the country made pistol in his hand when their attention was diverted towards him. There was hardly any light on the spot 'to facilitate recognition of appellant in this hit and run affair. Investigator did not examine Mukkha although Khube Ram (PW 3) alleged that he was smoking in the enclosure of Mukkha when he was attracted by the pistol shot. 11. We have carefully considered this entire criticism which does not cut ice. Vikram Singh (PW 1) testified that he alighted from bus along with Phool Singh ; both of them made way towards their house. Suddenly he was attracted by the report of shot and found appellant standing with country made pistol in his hand; he decamped towards south and eluded capture despite their pursuit. They returned and found Phool Singh in an injured state on the ground. He conceded that he did not make such detailed statement before investigator. 12. Vedu (PW 2) corroborated Vikram Singh (PW 1) but added that he had not actually seen Phool Singh alighting from bus. His attention was attracted by the report of shot; he saw appellant standing with country made pistol in his hand; thereafter appellant ran towards south; Phool Singh was found lying on the ground ; they chased appellant for seven steps or so but he decamped. Khube Kam (PW 3) claimed to have set in the enclosure of Mukkha where they were smoking hubble-bubble ; they were attracted by the report of shot and emerged out and saw Phool Singh lying on the road in an injured state. They saw appellant running towards south; Phool Singh also informed them about hits being shot at by appellant. Khube Kam (PW 3) claimed to have set in the enclosure of Mukkha where they were smoking hubble-bubble ; they were attracted by the report of shot and emerged out and saw Phool Singh lying on the road in an injured state. They saw appellant running towards south; Phool Singh also informed them about hits being shot at by appellant. The deponent Raghubir and Kallu carried Phool Singh to Police station. On the way, Phool Singh was again attacked by appellant in vain. 13. It appears that all these witnesses were nominated in the first information report Ext. Ka-3 which was a prompt report. IT was scribed by Mahendra Singh (PW 6) at his work-shop in the same night at about 10.00 P. M. Appellant had no ill-will with Mahendra Singh. Learned trial judge observed that these witnesses Vikram (PW 1) and Vedu (PW 2) were equally related to the appellant and had given a graphic description of the incident which was quite convincing and had a ring of truth. None of these witnesses conceded that there was no light inside the village Abadi at the bus stop on that evening at the the time of occurrence. Some shops and houses of villagers were situated near the scene of occurrence; a dialogue also took place between the appellant and the victim prior to the shooting incident and recognition by timbre of voice was quite possible. Investigator Sri Surendra Singh (PW 16) conceded that he did not interrogate Mukkha as Mukkha did not claim to be an eye witness although his enclosure lay just in front of the venue of occurrence towards east; under such circumstances, interrogation of Mukkha was not necessary nor there was any suggestion that Mukkha had been deliberately withheld in this case by prosecution although he could have been an eye witness. 14. The aforesaid witnesses testified to have accompanied the victim in the same bus ; they claimed to have seen appellant holding country made pistol and standing near the scene of occurrence just after the shot ; victim was also seen fallen by them in an injured state and he proclaimed appellant to be author of his injuries ; they also claimed to have hotly chased the appellant. Thus the aforesaid witnesses testified) about facts which formed part of the same transaction and their testimony is relevant as res gestae under Section 6 of the Indian Evidence Act. THEir evidence reveals their presence on the spot immediately after shot, Khube Ram (PW 3) also testified about spontaneous declaration by victim connecting the appellant with the crime. Thus all the facts testified by them accompanying the act of shot form part of the same transaction vide Mahendra Pal v. State, AIR 1955 Allahabad 328. In that case non production of such witnesses who came up immediately after the murder and who were informed by eye witnesses about the accused, operated to prejudice the prosecution. Omissions elicited in cross-examination were not considered as significant and relevant by learned trial judge. He observed that the mere fact that Vikram (PW 1) and Vedu (PW 2) did not mention the aforesaid fact about seeing the appellant standing with a country made pistol in his hand and thereafter running towards south before investigator did not make any material difference. 15. It is significant to note thai under explanation appended to Section 162 of the Code of Criminal Procedure only omission to state a fact or circumstance before the investigator may amount to contradiction if the same appears to be significant and relevant having regard to the context in which such omission occurs and whether the omission amounts to contradiction in the true context shall be a question of fact. Obviously, the investigator does not prepare detailed record of the statements of witnesses at the time of interrogation. The correct use is whether the inconsistency in the statements recorded by investigator and the court renders the evidence of the witness unreliable. In Tahsildar Singh v. State of U. P., AIR 1959 SC 1012 , it was pointed out that in order to amount to contradiction, omission in the statement before investigator should be of he nature which may be incompatible with the statement of the interrogates made in court. For example if a witness states during police investigation that he saw A striking B and in the witness box he says that he saw A striking B with a knife, the omission to refer to knife in the previous statement is so material as to amount to a statement contrary to the one made in the witness box. For example if a witness states during police investigation that he saw A striking B and in the witness box he says that he saw A striking B with a knife, the omission to refer to knife in the previous statement is so material as to amount to a statement contrary to the one made in the witness box. Similarly,in Davabhai v. State of Gujarat, AIR 1964 SC 1563 , it was held that the prosecution witnesses were properly permitted to be contradicted on the basis of an omission to speak about the accused's insanity in the former statements, because the former statements and the ones made in court could not stand together. 16. In the instant case, such omissions were not pointed out to our satisfaction. So this criticism is repelled. Similarly the fact that the names of these witnesses were not mentioned by the declarent in his second declaration does not render their presence doubtful. Such omissions of names in Ext. Ka-1 could not have been deliberate but operable to the prejudice of declarent only ; it could have been the result of fading memory of the declarent whose condition was deteriorating in between the two declarations. So this entire criticism about said witnesses is safely discardable. 17. The principal evidence against the accused consists of the two dying declarations made by the deceased. 18. In order to appreciate the attack by the learned Advocate for the appellant on these declarations, it is necessary to refer to each of them in extenso. The first declaration constitutes the first information report of this case and was recorded by Sri Mahendra Singh (PW 6} on 6-6-1979 at about 10.00 p. m. It is Ext. Ka-3 and reads as below :- "To S. O. P. S. Bhopa, District Muzaffarnagar. The first declaration constitutes the first information report of this case and was recorded by Sri Mahendra Singh (PW 6} on 6-6-1979 at about 10.00 p. m. It is Ext. Ka-3 and reads as below :- "To S. O. P. S. Bhopa, District Muzaffarnagar. Today at 8 p. m. I returned to my village from Muzaffarnagar in a bus and alighted from the same near the school and was making way for my home ; my co-villagers Vedu s/o Khan Singh, Parmanand s/o Samey Singh, caste Gujar and Peeru s/o Mohan ; Hari and Vikram s/o Mohar Singh Gujar also accompanied me ; as we proceeded ahead of school upto a distance of about 4-5 steps, Hari alias Satya Pal son of Qabool, caste Gujar came from the village and told me to listen ; when I asked him to tell what he had to say, he whipped out a pistol with the utterance to tell immediately and fired a shot on me suddenly and instantaneously ran towards jungle; my associates chased him but he eluded capture ; I sustained injury in my abdomen by the shot. While proceeding to police station to lodge the report along with Khube Ram s/o Sodhar Singh and Kallu Ram s/d Saktu and Ranbir s/o Buddhu Singh, he again met us near the crusher of our village on the road and directed to stop the tonga ; as we did not stop he Tonga, bad character Hari alias Satya Pal aforesaid fired a shot on us which attracted Mollahr Singh Pradhan, Sultan and Yashpal etc. ; on the alarm he decamped. I have come to lodge the report. Let legal action be taken after recording my report. Phool Singh s/o Atar Singh Caste Gujar, Village Baruki, P. S. Bhopa Date 6-6-79." The second dying declaration was recorded by Sri N. P. Asthana, Executive Magistrate (PW 9) on 7-6-1979 at 9-20 A. M. in District Hospital, Muzaffarnagar. The declarant was certified to be in fit mental state to make declaration by Dr. J. N. Mathur (PW 4) Ext. Ka-1/1 is the declaration which reads as below :- "Phool Singh stated on oath that yesterday I came to Muzaffarnagar from village and returned at about 7-00 p. m. to village by bus. The declarant was certified to be in fit mental state to make declaration by Dr. J. N. Mathur (PW 4) Ext. Ka-1/1 is the declaration which reads as below :- "Phool Singh stated on oath that yesterday I came to Muzaffarnagar from village and returned at about 7-00 p. m. to village by bus. The bus stopped in my village Baruki and I got down; as soon as I alighted from the bus, one person Satya Pal alias Hari s/o Qabool my co-villager met me; he was accompanied by two others whom I do not know ; Satya Pal had a country made pistol in his hand ; he enquired of me as to how long I would save myself ; I replied that so long as I would be saved by Lord upwards ; on it he fired a shot on me; shot hit my abdomen ; I fell down ; persons present lifted me; some persons also went to police station Bhopa to lodge the report ; Satya Pal etc. tried to obstruct on the way; the report was dictated ; I got the wound bandaged in Bhopa dispensary and reached this hospital. I was shot at about 8 or 8-15 p. m.; prior to it, I fell out once or twice with Satya Pal in connection with irrigation and he harboured ill-will. Phool Singh." 19. SRI D. Wall, learned Advocate for appellant argued before us that the said declaration recorded before the Magistrate was the result of tutoring. In this connection, he pointed out that in cross-examination Dr. J. N. Mathur (PW 4) conceded that he could not give the names of persons who talked with the injured on that day. 20. This statement cannot justify the inference that some persons met the declarent before he made the declaration; it also does not show that the said declaration was the result of any prompting etc.; doctor was examined on 1-7-1980 relating to fact which took place on 7-6-1979 and under such circumstances, he naturally alleged that he did not remember about the persons who might have or might have not met the declarent. On the other hand, Sri N. P. Asthana, Magistrate (PW 9) negatived this suggestion by alleging that there was none near the declarent when he made this declaration the declarent voluntarily made the declaration. So this contention is ruled out. On the other hand, Sri N. P. Asthana, Magistrate (PW 9) negatived this suggestion by alleging that there was none near the declarent when he made this declaration the declarent voluntarily made the declaration. So this contention is ruled out. Sri D. Wali, learned Advocate for the appellant conceded that this declaration Ext. Ka-1/1 did not need any corroboration and was relevant under Section 32 (1) of the Indian Evidence Act. The earlier view that corroboration was necessary as laid in Ram Nath v. State of Madhya Pradesh AIR 1953 SC 420 is no longer good law vide Khushal Rao v. State of Bombay, AIR 1958 SC 22 which rules the day. 21. However, two weaknesses were pointed out by Mr. Wali, learned Advocate for the appellant, in the declarations. It was pointed out that the declarations aforesaid were inconsistent. No motive for the assault has been laid in declaration Ext. Ka-6 although it occurs in Ext. Ka-1/1. Names of eye witnesses as cited in Ext. Ka-6 do not occur in Ext. Ka-1/1, and it was further mentioned in Ext. Ka-1/1 that appellant had two associates with him who were strangers; there is also variation in the dialogue between the declarent and appellant in both the declarations as pointed out above. 22. We have carefully considered these contentions which have little force. The mere fact that motive about the occurrence was not laid in Ext. Ka-6 although it was given in Ext. Ka-1/1, does not carry any weight. In cases of direct evidence, question of motive has little significance. Learned trial judge himself did not pin faith on any motive put forward in the second declaration. Declarent did not nominate any associate of accused in his declaration Ext. K-1/1 and so there is nothing to show that he wanted to involve some one else in the crime. Both the declarations are consistent about the time, place and manner of occurrence and the author of fatal shot. Presence of other persons although not named in Ext. Ka-1/1 was stated in the subsequent declaration as the victim was picked up by them. 23. In Jorubha Juzer Singh v. state of Gujarat, AIR 1980 SC 358 the victim made three dying declarations implicating the accused. Presence of other persons although not named in Ext. Ka-1/1 was stated in the subsequent declaration as the victim was picked up by them. 23. In Jorubha Juzer Singh v. state of Gujarat, AIR 1980 SC 358 the victim made three dying declarations implicating the accused. All the declarations were not identical in language and it was held that apart from eye witnesses, dying declarations made by the victim were sufficient to warrant conviction of the appellant. IN Lallubhai Devchand Shah v. State of Gujarat, AIR 1972 SC 1776 , it was pointed out that a dying declaration must be closely scrutinised as to appear to be truthful, and voluntary, conviction of the accused on its basis without any independent corroboration is sustainable. 24. In Godhu v. State of Rajasthan, AIR 1974 SC 2188 it was observed :- "(A) It is not correct to hold that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. IN cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part that it is not possible to sever the two parts, the court would be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the declaration does not depend upon the correctness of the other part. IN the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. Thus where in a dying declaration the deceased said that he was forcibly dragged inside the room by the accused and that the accused had shot at him, the accused could be held to have shot and caused the fatal injuries when that part was corroborated toy the evidence and that part was separable from the other part viz., the forcible dragging of deceased which was not proved to be correct." Obviously, a person while describing any incident on different times cannot give identical version unless tutored for the purpose. In the instant case, we have checked these dying declarations on the touch stone laid in Khushal Rao's case (supra) which posited "..................and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties." 25. Both the dying declarations are specific on the point that the appellant was author of the fatal shot sustained by victim on that evening in village Abadi, his recognition by timbre of voice was perfectly possible. The nature of injuries detailed above go to show that appellant and victim stood near each other when the fatal shot was fired on the victim. BOTH these declarations were not the result of any tutoring or prompting and were narrated by the declarant in his owe/ words promptly and are consistent throughout. BOTH these declarations find a material support from ocular testimony laid above and have a ring of truth. 26. Ext. Ka-1/1 was reduced in writing by a responsible authority like a Magistrate who remained unshaken in cross-examination. It was recorded on oath although such oath was not even necessary. BOTH these declarations find a material support from ocular testimony laid above and have a ring of truth. 26. Ext. Ka-1/1 was reduced in writing by a responsible authority like a Magistrate who remained unshaken in cross-examination. It was recorded on oath although such oath was not even necessary. The doctors certificate is to the effect that the declarant was in his senses when he made this declaration and signed the same. The nature of injuries sustained by victim do not go to show that his power of speach was impaired in any manner Under such circumstances, we find both these declarations as most reliable evidence available against the appellant in this crime. Some variations or inconsistencies, as pointed out by learned Advocate for appellant, are not on material points and could not be regarded criss cross or irreconcilable. In this view of the matter, we find no merit in this appeal which fails. Conviction and sentence recorded by the learned trial Judge are affirmed. Appellant is in jail and shall serve out the sentence awarded to him. Appeal dismissed.