JUDGMENT 1. Cases Referred : Abdul Rahman v. State of Maharashtra AIR 1979 SC 1181 ,.Balah Ram V. State of U.P. AIR 1974 SC 2165 .Dilip Singh v. State of Madras AIR 1979 SC 1173 ..Dilip Singh v. State of Punjab AIR 1979 SC 1973.Gaurishanker v. State of U.P. [ AIR 1962 Supreme Court 399].Godu v. State of Rajasthan [ AIR 1974 SC 2188 ],.K R. Ramchandra Reddy v. Public Prosecutor [ AIR 1976 SC 1994 ]. JUDGEMENT 2. Milap Chandra, J. - These appeals and revision have been filed against the judgment of learned Additional Sessions Judge, Sri Ganganagar dated September 14, 1983, conviction and sentencing the accused-appellants as under: S. No. Name of the accused appellant Conviction under Section Sentences 1. Balkar Singh 302, IPC Life imprisonment and fine of Rs. 1,000/- and in default, three month's S.I. 27, Arms Act One years R.I and of Rs. 1000/-, in default to undergo 15 day's S.I. 2. Sardulsingh alias Man Singh -do- -do- 2. On August 31, 1982 at 12.05 P.M. Harpal Singh PW 1 lodged FIR Ex. P 1 at the Police Station, Gajsinghpur (Sri Ganganagar) with the allegations, in short, that his uncle Ranveer Singh (PW 4) was allotted a plot measuring 80' x 40' situated at 19-FF by the Sarpanch, Gram Pancbayat, Motasar Kuni at patta (Ex P 9) was issued. The accused Pragat Singh who died during the trial and who was residing in the same Chak used to threaten Ranveer Singh PW 4 that he would not allow him to construct a wall on the said plot, situated adjacent to his house. In the morning of August 31, 1982. the deceased Gurmeet s/o Ranveer Singh and mistry Gurdeep Singh were constructing a wall on the said plot. At about 10.00 A.M., the accused Pargat Singh, Sardul Singh alias Man Singh and Balkar Singh came to the said plot through the window of their house. Accused Pargat Singh was armed with a lathi, Balkar Singh has having a gun and Sardul Singh had a pistol. Pargat Singh asked Balkar Singh and Sardul Singh to do away Gurmeet Singh and Gurdeep Singh. Thereon, both of them filed their pistol and gun and seriously injured Gurmeet Singh and Gurdeep Singh. At the time of the occurrence, Harpal Singh was taking his cattle to the Chhapra. Pargat Singh asked Balkar Singh and Sardul Singh to do away Gurmeet Singh and Gurdeep Singh. Thereon, both of them filed their pistol and gun and seriously injured Gurmeet Singh and Gurdeep Singh. At the time of the occurrence, Harpal Singh was taking his cattle to the Chhapra. Ranveer Singh PW 4 Mohan Singh, Bheera PW 2 and Daljeet Singh were also present there. The accused persons ran away when they were challenged by them The injured were brought to the Primary Health Centre, Gajsinghpur in a tractor by them. A case under Section 302/34, Indian Penal Code and Section 27, Arms Act was registered and investigation was commenced. Dr. S.C. Agarwal PW 11 attended Gurdeep Singh and Gurmeet Singh. The prosecution case further was that Dr. S.C. Agrawal asked A.S.I. Shri Pana Ram (PW 12) to get the dying declarations of the deceased recorded. A S I Shri Panaram himself recorded the dying declarations Ex. P 28 and Ex. P 29 of Gurdeep Singh and Gurmeet Singh in the presence of the doctor. On his advice, they were removed to the District Hospital, Sri Ganganagar. The Medical Jurist, Dr. Rajendra Kumar Gupta PW 6 examined the injured Gurmeet Singh. The other injured Gurdeep Singh died at 4.40 PM the same day. The dying declaration Ex.P 15 of the injured Gurmeet Singh was recorded by the Judicial Magistrate, Sri Pramod Kumar Vashisth PW 12. He could not record the dying declaration of Gurdeep Singh as he had already died by that time. The injured Gurmeet Singh died at 11.00 AM on September 1, 1982. Dr. Rajendra Kumar Gupta PW 6 conducted the post-mortem examination of their dead bodies and prepared the post-mortem reports Ex. P 17 and Ex. P 19. After completing the investigation, a challan was filed before the Munsif-Judicial Magistrate, Sri Karanpur (Sri Ganganagar) who committed them to the Sessions Judge, Sri Ganganagar. Subsequently, the case was transferred to the Additional Sessions Judge, Sri Ganganagar for trial Charges were framed under Section 302, in the alternative under Section 302 read with Section 34, Indian Penal Code and also Under/Section 27, Arms Act against the accused Balkar Singh and Sardul Singh Charges under Section 120B, in the alternative under Section 302 read with Section 34 and also under Section 302 read with Section 114, Indian Penal Code were framed against accused Pargat Singh. None pleaded guilty. All claimed trial. None pleaded guilty. All claimed trial. 3. During the trial, the prosecution examined the informant Harpal Singh PW 1, Beera Singh PW 2 and Ranveer Singh PW 4 as eye-witnesses of the occurrence, Santok Singh PW 3 and Harbans Singh PW 5, Secretary and Sarpanch respectively of the Gram Panchayat, Motasar Kuni to prove the Patta Ex P 9 granted in favour of Ranveer Singh PW 4 in respect of the disputed plot. Dr. Suresh Kumar Agarwal PW 11 who first attended the injured Gurmeet Singh and Gurdeep Singh and in whose presence their dying declarations Ex. P 28 and Ex. P 29 were recorded. Incharge Police Station, Gajsinghpur, Panaram PW 12 who recorded the FIR Ex. P 1 and the dying declaratins Ex. P 28 and Ex P 29, Dr. Rajendra Kumar Gupta PW 6 who examined the injured Gurmeet Singh and conducted the post-mortem examination on the dead bodies of Gurdeepsingh and Gurmeetsingh and prepared the injury report Ex. P 13 and post-mortem reports Ex. P17 and Ex. P 19. Judicial Magistrate, Pramod Kumar Vashisth PW 10 who recorded the dying declaration Ex P 15 of the injured Gurmeet Singh, Head Constable Abdul, Gani Khan PW 9 and Deputy Superintendent of Police. Ratan Singh PW 13 as Investigating Officers, Head Constable Jagdish Ram PW 7 who kept the sealed packets in the Malkhana of the Police Station, Gajsinghpur and the constable Sawai Singh PW 8 who took the sealed packets to the Forensic Science Laboratory, Jaipur. 4. The accused-persons disclosed in their statements recorded under Section 313, Cr.PC that they have falsely been implicated, Patta Ex P 9 and other documents have been fabricated, the prosecution story is false, they were not arrested by the Police, they themselves surrendered before it, they did not give any information and get recovered any article and they are innocent. They did not produce any witness or document in their defence. 5. They did not produce any witness or document in their defence. 5. After hearing the parties, the learned Additional Sessions Judge, Sri Ganganagar convicted and sentenced the accused-appellants as said above, holding: [i] that Harpal Singh PW 1, Beer Singh PW 2 and Ranveer Singh PW 4 have actually seen the occurrence, their testimony is reliable, it inspires confidence and finds corroboration from other circumstances of the case; [ii] that the deceased Gurdeep Singh and Gurmeet Singh received injuries from two shots fired from two different fire arms and not from one shot of a fire arm only and [iii] that the dying declaration Ex. P 15 of the deceased Gurmeet Singh is genuine and true. The learned trial court further held that even ignoring the dying declarations Ex P 28 and P 29 recorded by the ASI Panaram PW 12 and the recovery of the firearms in pursuance of the informations Ex P 33 and Ex P 34 given by the accused-appellants, the prosecution's case against the accused appellants is proved beyond doubt. 6. Shri M.R. Sharma, Senior Advocate, appearing for the accused appellants has contended: [i] That the presence of the alleged eye-witnesses, namely, Harpal Singh. PW 1 Beer Singh PW 2 and Ranveer Singh PW 4 at the place of occurrence was very much doubtful and the learned trial court was in error in placing reliance on their testimony. These witnesses are interested in the prosecution and are inmical towards the accused. Their statements are contradictory and do not inspire confidence. The prosecution story that the accused-per sons came through the window of their house to the disputed plot is highly improbable. Patta Ex P 9 has been fabricated after the occurrence; [ii] The prosecution has failed to establish a motive on the part of the accused-appellants to kill Gurdeep Singh and Gurmeet Singh when their enmity was with Ranveer Singh PW 4 only: [iii] The learned trial court seriously erred in holding that Gurdeep Singh and Gurmeet Singh received injuries from two shots fired from two different fire arms. Dr. Rajendra Kumar Gupta PW 5 has categorically stated in his cross-examination that the fire arm injuries of both the injured persons i.e. Gurdeep Singh and Gurmeet Singh could be to a shot from one fire arm only. Dr. Rajendra Kumar Gupta PW 5 has categorically stated in his cross-examination that the fire arm injuries of both the injured persons i.e. Gurdeep Singh and Gurmeet Singh could be to a shot from one fire arm only. The finding of the learned trial court that two pieces of wads were not of the one cartridge but of two different cartridges, is not based on any material on record. In the absence of an expert opinion, the learned trial court was not justified to hold so on the basis of its own observations. It also committed a serious error in holding that L.G. cartridge, contains six effective pellets only; [iv] The learned trial court has seriously erred in placing reliance on the dying declaratian Ex P 15. It was recorded after the relatives. of the deceased Gurmeet Singh had tutored him and it was recorded in their presence. He relied upon Balah Ram V. State of U.P. AIR 1974 SC 2165 ; Gedu v. State of Rajasthan, AIR 1974 SC 2188 , K. Ramchandra Reddy v. Public Prosecutor AIR 1976 SC 1994 and Dilip Singh v. State of Madras AIR 1979 SC 1173 . 7. The learned Public Prosecutor and the learned Counsel for the complainant duly supported the conviction of the accused-appellants. They contended that the learned trial court was in error ignoring the dying declarations Ex Ps 28. and 29 recorded by the ASI Panaram PW. 12 and the recovery of the fire arms in pursuance of the informations Ex.Ps 33 and Ex.Ps 34 by the accused-appellants under Section 27, Evidence Act and these documents, further corroborate the prosecution evidence on which reliance has been placed by the learned trial court They further contended that the Medical Jurist. Dr. 12 and the recovery of the fire arms in pursuance of the informations Ex.Ps 33 and Ex.Ps 34 by the accused-appellants under Section 27, Evidence Act and these documents, further corroborate the prosecution evidence on which reliance has been placed by the learned trial court They further contended that the Medical Jurist. Dr. Rajendra Kumar PW 6 has simply made a general remark to the effect that the two injured might have received their fire arm injuries from one shot of a fire arm only, his attention was not specifically invited towards the inter se position of the victims Gurdeep Singh and Gurmeet Singh and also their inter-deposition with respect of the fire arm holders before the shots hit them, the sites of the various fire arm injuries received by them leave no doubt that all the injuries could not have been caused by one shot from a fire arm only, at least two shots were fired, it is not the case of the accused-persons that the two shots were fired from the same fire arm and it is definite and positive case of the prosecution that one shot each was fired from two different fire arms, i.e gun and pistol. The dying declarations Ex. P 15, P. 28 and Ex P. 29 were carefully and correctly recorded and there was no question of tutoring the injured persons by the relatives as they were busy in their treatment. They also contended that the learned trial court should have awarded the death sentence to the accused-appellant under the facts and circumstances of the case. 8. There is no force in the contention of the learned Counsel for the accused-appellants that the presence of the eye-witnesses, namely, Harpal Singh PW 1, Beera Singh PW 2 and Ranveer Singh PW 4 was very much doubtful at the place of the occurrence. It is not in dispute that the occurrence took place quite close to the houses of Harpal Singh PW 1 and Ranveer Singh PW 4 They are duly shown in the site plan Ex. P2. Harpal Singh is the son of Balraj Singh in whose name the house has been shown. Beera Singh PW 2 was the servant of Ranveer Singh PW 4 for the last three years. The names of these witnesses find mention in the First Information Report Ex. PI lodged the same day within two hours of the occurrence. P2. Harpal Singh is the son of Balraj Singh in whose name the house has been shown. Beera Singh PW 2 was the servant of Ranveer Singh PW 4 for the last three years. The names of these witnesses find mention in the First Information Report Ex. PI lodged the same day within two hours of the occurrence. It may also be mentioned here that it was duly received by the Magistrate-concerned, i.e. Munsif cum-Judicial Magistrate, Karanpur within six hours of the occurrence. It bears his signatures under the note giving the date and time of its receipt. Essential details of the occurrence appear in the statements of these witnesses. It is correct that there are certain discrepancies in the statements of these witnesses but they are not on material points. They are of minor nature. It is common experience that the discrepancies do occur even in the statements of perfectly honest witnesses. They are really due to differences in individual faculties with regard to observation and recollecting recital of details. Unless there is any good ground to presume that they are due to deliberate attempt 10 suppress or depart from truth, it is unfair to discard the direct testimony of witnesses merely on account of such discrepancies when there is general agreement as to material circumstances. It is correct that the site-plan Ex P2 does not show the place where the accused-persons and the eye witnesses were standing at the time of the occurrence. This omission does not cast any doubt on the prosecution story. The site-plan was prepared at the instance of Harpal Singh PW 1. The indication of this fact in the site-plan Ex. P2 would have been hit by Section 152, Cr. PC 1973 Reference of Gaurishanker v. State of U.P. [ AIR 1962 Supreme Court 399] may be made here. 9. It is correct that Ranveer Singh PW 4 is the father of the deceased Gurmeet Singh, Harpal Singh PW 1 is the nephew of Ranveer Singh PW 4 and Beera Singh PW 2 was the servant of Ranveer Singh PW 4 It is also correct that it is mentioned in the First Information Report Ex. P 1 that the accused Pragat Singh (deceased) started having enmity with Ranveer Singh PW 4 and deceased Gurmeet Singh as the latter wanted to raise a wall on the land near his "Ahata". Enmity is double edged weapon. P 1 that the accused Pragat Singh (deceased) started having enmity with Ranveer Singh PW 4 and deceased Gurmeet Singh as the latter wanted to raise a wall on the land near his "Ahata". Enmity is double edged weapon. It often provides motive for committing crime also. Ranveer Singh PW 4 and Harpal Singh PW 1 being father and cousin of the deceased Gurmeet Singh had no reason for leaving out the real assailants and implicating the accused-persons falsely. One could at least understand one's attempt to implicate his enemies in addition to fats real culprits. 10. There is also no force in the contention of learned Counsel for the accused-appellants that it appeared to be highly improbable that the accused-persons came through the window of their house to the disputed plot and then fired shots from their fire arms as Gurmeet Singh and Gurdeep Singh were visible from the window and the shots could be fired there-from. It is clearly stated in the First Information Report Ex. P 1 that the accused Pragat Singh, Balkar Singh and Sardul Singh came on the disputed plot through the window of their house and the accused Pragat Singh asked the accused Balkar Singh and Sardul Singh to do away Gurmeet Singh and Gurdeep Singh who were constructing the disputed wall at the place of the occurrence. There is no suggestion in the cross-examination of any of the prosecution witnesses that the shots were fired from the said window. According to the statement of A.S.I. Panaram PW 12, the distance between the window and the disputed wall was about 45'. From the nature, speed and dispersion of the pellets of the two shots, it appears that they were not fired from the window, or otherwise their dispersion would have been much more and the force would have been lesser. The post-mortem report Ex. P 19 of the deceased Gurmeet Singh shows that there were two entry and two corresponding exit wounds and the postmortem report Ex. P 19 of the deceased Gurdeep Singh shows one wound of entry and corresponding one wound of exit. This confirms that the pellets had tremendous speed when they hit the bodies of the deceased persons. 11. There is also no force in the contention of the learned Counsel for the accused-appellants that the Patta Ex. P. 9 was fabricated after the occurrence took place. This confirms that the pellets had tremendous speed when they hit the bodies of the deceased persons. 11. There is also no force in the contention of the learned Counsel for the accused-appellants that the Patta Ex. P. 9 was fabricated after the occurrence took place. The prosecution has examined the then Sarpanch Harbans Singh PW 5 and the Secretary, Santok Singh PW 3 of the Gram Panchayat, Motasar Kuni who issued the Patta Ex. P. 9. They have deposed that the Patta Ex. P9 bears the signatures of the Sarpanch Harbans Singh PW 5, lessee Ranveer Singh PW 4 and attesting witnesses Menda Singh and Daljeet Singh. It was issued on 1-4-1968. From the mere fact that the attesting witnesses were minors and were relatives of the lessee it cannot be branded as a forged document. A minor can be an attesting witness. It is proved from the Patta Ex. P 9 that land where the wall was being constructed belonged to Ranveer Singh PW 4. He thus had a right to raise a wall there. 12. There is also no force in the contention of the learned Counsel for the accused-appellants that the prosecution has failed to establish a motive on the part of the accused-appellants to kill Gurdeep Singh and Gurmeet Singh when their enmity was with Ranveer Singh PW 4. It is stated in the First Information Report Ex. P 1 that the accused Pragat Singh (who died during trial) started entertaining enmity with Ranveer Singh PW 4 and his sons. It is well proved from the evidence on record that the wall was being constructed by the Mason Gurdeep Singh and the deceased Gurmeet Singh was giving bricks to him. Admittedly, Gurmeet Singh was the son of Ranveer Singh PW 4 The accused-persons were protesting against the construction of this wall. Thus they had immediate grievance against Gurdeep Singh and Gurmeet Singh who were then actually constructing the wall. This provided immediate motive for firing shots upon them. 13. There is no force in the contention of the learned Counsel for the accused-appellants that Gurdeep Singh and' Gurmeet Singh received fire arm injuries from a shot fired from one fire arm only. It is correct that the Medical Jurist Dr. This provided immediate motive for firing shots upon them. 13. There is no force in the contention of the learned Counsel for the accused-appellants that Gurdeep Singh and' Gurmeet Singh received fire arm injuries from a shot fired from one fire arm only. It is correct that the Medical Jurist Dr. R K. Gupta PW 4 who conducted the post-mortem examination on the dead bodies of the deceased Gurmeet Singh and Gurdeep Singh, has disclosed in his cross-examination that the fire arm injuries received by them could be due to a shot from one arm only. The post-mortem reports Ex. Ps 17 and Ex. P 19 show that the deceased received the following injuries: 14. "1. Gurmeet Singh-- 1. Lacerated wound 1/4" x ⅛" x muscle deep on the right side of the abdominal flank in the middle laterally; 2. Lacerated wound 1/4" x ⅛" x muscle deep above Rt. Sacral region; 3. Lacerated wound 1/4" x ⅛" x muscle deep on the right Renual angle; 4. Lacerated wound ⅛" x 1/4" x muscle deep on the left lateral broder of the abdomen; 5. Lacerated wound ⅜" x 1/4" x muscle-deep above left Renual angle; 6. Lacerated wound ⅜" x ⅓" x muscle-deep left side of the abdomen on the anterior border; 7. Lacerated wound 1/4" x ⅛" muscle-deep on the left thigh Ant, in the middle ⅓rd. Injuries Nos. 1 to 6 were due to firm-arm weapon. Injury No. 7 was due to Slint weapon. No blackening, Scoarching or tatooing was persent around the wound. Wounds No. 1 to 4 were wounds of entry and No. 5 and 6 wound of exit. Injuries Nos. 3 and 5 and 4 and 6 communicated with each other. Wound No. 2 was going towards left side in the Internal region. Injury No. 1 was going deep in the abdominal cavity. 15. "2. Gurdeep Singh-- 1. Lacerated wound ⅜' X ⅛" x ⅛" on the right knee lateral side; 2. Lacerated wound ⅜" x ⅛" x ⅛" on the right thigh laterally in the lower l/3rd; 3. Right angle of the mouth is lacerated 1/4' X ⅛' x ⅜" x Rt. incise teeth broken; 4. Lacerated wound 1/4' X ⅛' muscle deep on the Right upper arm lateral posteriorly in the upper l/3rd. Margins inverted; 5. Lacerated wound ⅜" x ⅛" x ⅛" on the right thigh laterally in the lower l/3rd; 3. Right angle of the mouth is lacerated 1/4' X ⅛' x ⅜" x Rt. incise teeth broken; 4. Lacerated wound 1/4' X ⅛' muscle deep on the Right upper arm lateral posteriorly in the upper l/3rd. Margins inverted; 5. Lacerated wound 1/4" X ⅛" X musde-deep on the Right appear arm latero posteriorily in the upper l/3rd. Margins inverted; 6. Lacerated wound 1/4" X ⅛" X muscle deep on the Right upper arm lateral. Post in the upper l/3rd. Margins inverted; 7. Lacerated wound 1/4" X ⅛" X muscle-deep on the Right upper arm post in the upper l/3rd; 8. Lacerated wound 1/4" x muscle deep on the lateral post aspect of the chest 33/4" below Axilla. Margins inverted; 9. Lacerated wound ⅜" x 1/4" muscle deep margins inverted. On the right upper arm medially in the upper ⅓rd 'B'; Injuries No. 1, 2 and 3 were due to Blunt weapon. Injuries Nos. 1 and 2 were simple in nature. Injury No. 3 was grievous in nature. Injuries No. 4 to 9 were due to fire arm weapon. Injury No. IX was wound of exist and communicating with injury No. V Right Humerous was fractured. No blackening scoarching or Tatooing was present on the wounds." 16. The inter-se position of the two victims, i.e., Gurumeet Singh and Gurdeep Singh and their position vis-a-vis fire-arm holders was not pointed out to Dr. R.K. Gupta PW 4 before he made the said statement If it had been pointed out, he would not have stated so. The eye-witness Harpal Singh PW 1 has deposed that the disputed wall was being raised in the direction of east-west, Gurdeep Singh was sitting on it, his face was towards west, Gurmeet Singh was sitting towards the north of Gurdeep Singh at a distance of 21/2, he was giving bricks to him and at the time when the shots were fired the face of Gurmeet Singh was towards north-west and both were sitting The aforesaid three eye-witnesses have disclosed that the shots were fired from the eastern side. It is correct that the distance in between the fire-arm, holders and the victims at the time of the actual firing has not come on record. No mark of blackening or tatooing was seen around the fire arm injuries. It is correct that the distance in between the fire-arm, holders and the victims at the time of the actual firing has not come on record. No mark of blackening or tatooing was seen around the fire arm injuries. As such shots were fired from a distance of more than 5'. The aforesaid injuries of Gurmeet Singh show that his fire arm injuries were on the abdomen, sacram and renal angle. Similarly, injuries of Gurdeep Singh show that his fire arm injuries were clustered on his right arm and there was only one fire arm injury on his chest. The learned Counsel for the accused-appellants contended that there was a great distance in between the fire arm holders and the victims, as such there was great dispersion of pellets and only one shot caused all the aforesaid fire arm injuries. If it would have been so, the other parts of their bodies exposed towards the shot, would have also received fire arm injuries. The fact that the fire arm injuries received by Gurdeep Singh were clustered on his right arm and the fire arm injuries of Gurmeet Singh were on his abdomen and other adjacent parts of his body leave no doubt that at least two shots were fired. The inter se position of the victims and their position vis-a-vis fire arm holders also show that all these fire arm injuries could not have been received by one shot only. As already observed above, Harpal Singh PW 1 has disclosed in his cross-examination that the face of Gurmeet Singh was towards north, west and the shots came from the eastern side. In such a position he could not have simultaneously received fire arm injuries on his right flank, sacram, right renal angle and also on his left renal angle and left lateral border of the abdomen. The observations made in Taylor's Medical Jurisprudence at. P. 411 (Volume 1) (10th Edition), by Blaister in his book at P. 285 (13th Edition), by H W.V. Cox in his Medical Jurisprudence and Toxicology at P. 282 (5th Editition) and by Modi in his book at P. 229 regarding dispersion of pellets, relied upon by the learned Counsel for the accused-appellants, do not help them. They rather support the prosecution version. It is correct that the report Ex. They rather support the prosecution version. It is correct that the report Ex. P 29 of the Ballistic Expert in this regard it is not categorical It does not indicate that only one fire arm was used. Howe ver, it is stated in sub-para (3) of the last para that 12 bore cartridges case (C-3) has not been fired from any of the two submitted weapons (W 1 and W 2) from packets 'J' and K.'. 17. There is yet another aspect of the matter. The dying declarations Ex P 15, Ex. P 29 and immediately recorded FIR P. 1 clearly mention that both the accused appellants used their arms in causing injuries to the deceased Gurmeet Singh and Gurdeep Singh. The eye-witnesses, Harpal Singh PW 1, Beera Singh PW 2 and Ranveer Singh PW 4 bave also deposed that the shots from two fire arms were fired, deceased Gurmeet Singh has categorically stated in his dying declaration Ex. P 15, recorded by the Judicial Magistrate, Shri Pramod Kumar Vashisth PW 10, that the pellts hit on his on back while be was giving bricks to the Mistry, he fell down, the accused Pragat Singh asked Balkar Singh and Man Singh to fire and he again received pellets on his chest while he was going towards the heap of the bricks to hide himself. 18. There is also no force in the contention of the learned Counsel for the accused appellants that the learned trial court seriously erred in placing reliance upon the dying declaration Ex. P 15 of the deceased Gurmeet Singh. The injured persons were first brought to the Government Dispan-sary, Gajsinghpur, where Dr. R K. Agrawal PW 11 attended them and advised the ASI Panaram PW 12 for getting their dying declarations record-ded and, accordingly, he recorded them vide Ex. P 28 and Ex. P 29 at about 1.30 p.m. the same day. Thereafter, they were shifted to the Government Hospital, Sri Ganganagar. Application Ex. P 27 was moved by the Sub-Inspector Saddique Mohammed of the Police Station, Kotwali Sri Ganganagar at about 4.30 P.M. before the Judicial Magistrate No. 2, Sri Ganganagar Shri Pramod Kumar Vashisth PW 10 for recording the dying declarations of the injured persons. Thereafter, they were shifted to the Government Hospital, Sri Ganganagar. Application Ex. P 27 was moved by the Sub-Inspector Saddique Mohammed of the Police Station, Kotwali Sri Ganganagar at about 4.30 P.M. before the Judicial Magistrate No. 2, Sri Ganganagar Shri Pramod Kumar Vashisth PW 10 for recording the dying declarations of the injured persons. Shri Vashisth PW 10 has deposed that he recorded the dying declaration Ex P 15 of the injured Gurmeet Singh, he has also deposed that before recordirg the dying declaration, he made enquiry from the Medical Jurist Dr. R.K. Gupta PW 6 about the fitness of the injured to give his statement and the dying declaration Ex. P 15 was recorded after being satisfied about his condition. lt is correct that Shri Vashisth PW 10 has disclosed in his cross-examination that the relatives of the deceased were present when the dying declaration Ex. P 15 was recorded by him, He Las made it clear in his cross-examination that there was no question of the relatives telling the injured any thing about the occurrence, while he was recording the dying declaration Ex. P 15. He has categorically stated that no relative told the deceased anything in his presence. Ranveer Singh PW 4 has denied the sugges tion in his cross-examination that the injured persons were told the names of the accused-persons and the witnesses before they reached the Government Dispensary, Gajsinghpur. He has categorically stated that at that time, they were busy to save their lives. The Medical Jurist Dr. R K. Gupta PW 6 has deposed that Gurmeet Singh was in a fit condition to give dying declaration and for this purpose, he wrote letter Ex. P 12 to the SHO, Kotwali, Shri Ganganagar. He has further deposed that he has given a note to this effect on the dying declaration Ex. P 15 itself. It may be mentioned here that the dying declaration of the injured Gurdeep Singh could not be recorded at Sri Ganganagar as he died at 4.40 p.m. on August 31, 1982 before Sri P.K. Vashisth PW 10 reached the hospital. A perusal of the dying declaration Ex.P 15 shows that it was voluntarily given by the deceased Gurmeet Singh. It does not smack any tutoring. It also does not suffer from any inherent improbability or inconsistency. A perusal of the dying declaration Ex.P 15 shows that it was voluntarily given by the deceased Gurmeet Singh. It does not smack any tutoring. It also does not suffer from any inherent improbability or inconsistency. It finds corroboation from the statements of the three eyewitnesses, namely, Harnam Singh PW 1, Beera Singh PW 2, Ranveer Singh PW 4 and the FIR Ex. P 1. Presence of relatives does not make a dying declaration tutored. Reference of Abdul Rahman v. State of Maharashtra AIR 1979 SC 1181 , may be made here. 19. It may also be mentioned here that the ASI, Panaram PW 12 who was then Incharge, Police Station, Gajsinghpur, recorded the dying declarations Ex P 28 and Ex.P 29 of Gurdeep Singh and Gurmeet. Singh respectively. He has deposed that he did so as the Medical Officer, Government Dispensary, Gajsinghpur Dr. R.K. Agarwal, PW 11 told him that the condition of injured Gurdeep Singh and Gurmeet Singh was very serious and he also advised for immediate recording their dying declaration and, accordingly, he recorded them in his presence. Similar is the statement of Dr. R K. Agarwal, PW 11, Dr. Agarwal has given note "Uprokt Bayan Mere Samne Liya Gay Hain" at the bottom of these dying declarations. Both bear the thumb impressions of the declarations. The nearest Magistrate available for recording the declarations was Karanpur. The distance in between Gajsinghpur and Karanpur is about 17 Kms. Nothing damaging has been elicited out in the cross examination of either ASI. Panaram PW 12 Dr. R.K. Agrawal PW 11. which may go to create any doubt in the genuineness of these dying declarations. In Balkalaram v. State of UP AIR 1974 SC 2195 relied upon by the learned Counsel for the accused appellants, dying declaration was not got signed by the declarant and attested by any witness, despite the presence of many witnesses. It is correct that the dying declaration Ex.P 15 and Ex.P 18 of Gurmeet Singh are not exactly similar but there is no material discrepancy or contradiction in between them. A little difference in between them rather indicates their geniuneness. They seem to be natural and inspire confidence. There is nothing on the record to indicate that the declarants, particularly Mistry Gurdeep Singh, had any animosity with any accused prior to the occurrence. A little difference in between them rather indicates their geniuneness. They seem to be natural and inspire confidence. There is nothing on the record to indicate that the declarants, particularly Mistry Gurdeep Singh, had any animosity with any accused prior to the occurrence. No part of any of the dying declarations Ex.P 15, Ex.P 28 and Ex.P 29 have been found to be false. As such Godu v. State of Rajasthan [ AIR 1974 SC 2188 ], also does not help the accused-appellants In K R. Ramchandra Reddy v. Public Prosecutor [ AIR 1976 SC 1994 ], the deceased had three opportunities to tell about the occurrence to the witness but the did not disclose any thing and, thereafter, it was alleged that he made the dying declaration. Such is not the case here. In Dilip Singh v. State of Punjab AIR 1979 SC 1973 , relied upon by the learned Counsel for accused-appellants, it has been held that a declaration cannot be rejected on the ground that it was recorded by a Police Officer when the deceased was in a critical condition and no person was available in village to record his dying declaration. 20. There is no force in the contention for the learned Public Prosecutor and the learned Counsel for the complainant that the learned trial court erred in ignoring the recovery of the fire arms in pursuance of the informations Ex.P 33 and Ex P 34 given by the accused-appellants under Section 27, Evidence Act. The Deputy Superintendent of Police, Ratan Singh PW 13 has deposed that on September 12, 1982, at 10 a.m. the accused Sardul Singh, Man Singh gave information Ex.P 33 to him for the recovery of barrel gun, three cartridges and three spent cartridges from the field of his elder brother Kuldeep Singh situated in Killa Kamal Chak No. 12 PS and similar information Ex.P 34 was given by accused Balkar Singh at the same time. He has further deposed on the same day, at 2 40 p.m., the accused Balkar Singh and Sardul Singh got recovered gun Article. 4, pistol Article 5 spent and live cartridges and a joint recovery memo Ex P 25 was prepared. The information memos Ex P 33 and Ex.P 34 show that each contains information regarding the recovery of the fire arm used by the co-accused. 4, pistol Article 5 spent and live cartridges and a joint recovery memo Ex P 25 was prepared. The information memos Ex P 33 and Ex.P 34 show that each contains information regarding the recovery of the fire arm used by the co-accused. In other words, the information Ex.P 33 given by the accused Man Singh alias Sardul Singh contains the information regarding the recovery of pistol of the accused Balveer Singh also and similarly, the information Ex.P 33 given by the accused Balveer Singh contains the information regarding the recovery of the gun of the accused Sardul Singh also. After the recording of the information Ex.P 33 and recovery of both the fire arms in pursuance thereof, the second information Ex P 34 was inadmissible. There was no question of any discovery in pursuance of the second information Ex.P 34 as the recovery has already been made in pursuance of the First Information Ex.P 33. Now question arises as to which information was first given. Both the informations Ex.P 33 and Ex.P 34 mention the time of recording as 10 a.m The Deputy Superintendent of Police, Ratan Singh. PW 13, stated in his cross-examination that he did not remember as to which information was first given. As such it becomes doubtful as to whose information was first. The learned trial court has rightly not placed any reliance on these informations. The report Ex.P 33 of the State Forensic Science Laboratory, Jaipur is also not categorical. 21. We were taken through the statements of the prosecution witnesses, particularly of (he eye-witnesses, namely, Harpal Singh PW 1, Beerasingh PW 2 and Ranveer Singh PW 4 by the learned Counsel for the accused-appellants. The report Ex.P 33 of the State Forensic Science Laboratory, Jaipur is also not categorical. 21. We were taken through the statements of the prosecution witnesses, particularly of (he eye-witnesses, namely, Harpal Singh PW 1, Beerasingh PW 2 and Ranveer Singh PW 4 by the learned Counsel for the accused-appellants. It is well proved from the statements of the three eye-witnesses, namely, Harpal Singh PW 1, Beera Singh PW 2 and Ranveer Singh PW 4, that both the accused-appellants Balkar Singh and Sardul Singh came armed with pistol and gun along with the co-accused Pragat Singh (who died during trial) from their house through the window opening towards the said land of Ranveer Singh PW 4, the accused Balkar Singh fired shot from his pistol towards the deceased Gurmeet Singh and the accused Sardul Singh fired shot from his gun towards the deceased Gurdeep Singh, all these three witnesses proclaimed as to why they had been shot down and asked not to injure them and, thereafter, they ran away to their house. Their statements find corroboration from the dying declarations Ex.P 15, Ex.P 28 and Ex.P 29 immediately recorded FIR Ex.P 1 and post-mortem reports Ex P 17 and Ex.P 19. Nothing damaging could be elicited out in their cross-examination. Their testimony inspires confidence. The learned Additional Sessions Judge has rightly relied upon their statements. It is also well proved from their statements that the accused Balkar Singh, Sardul Singh and Pragat Singh formed a common intention to do away Gurmeet Singh and Gurdeep Singh who are constructing the wall on the disputed land, in furtherance of the common intention, the accused-appellant Balkar Singh fired shot from his pistol towards Gurmeet Singh and the accused-appellant Sardul Singh fired from his gun towards the deceased Gurdeep Singh and as a result of the fire arm injuries both of them died. Thus the offence under Section 302. Indian Penal Code is well proved against the accused-appellants Balkar Singh and Sardul Singh for murdering Gurmeet Singh and Gurdeep Singh respectively. The learned Additional Sessions Judge has not convicted and sentenced the accused-appellants for the offence punishable under Section 302 read with Section 34, Indian Penal Code and no appeal has been filed against it. Thus the appeal of the accused-appellants Balkar Singh and Sardul Singh has no force. 22. The learned Additional Sessions Judge has not convicted and sentenced the accused-appellants for the offence punishable under Section 302 read with Section 34, Indian Penal Code and no appeal has been filed against it. Thus the appeal of the accused-appellants Balkar Singh and Sardul Singh has no force. 22. A charge under Section 27, Arms Act was framed against the accused-appellants Balkar Singh and Sardul Singh. The learned Additional Sessions Judge found it proved. As already observed above, it is well proved the evidence on record that both of them used fire arms to kill Gurmeet Singh and Gurdeep Singh. The learned Additional Sessions Judge rightly convicted and sentenced them under Section 27, Arms Act. 23. The appeal and the revision filed by the State and complainant Harpal Singh PW 1 respectively for awarding capital sentence have also no great force. It is not the prosecution case that any of the accused appellants tried to fire second shot from his fire arm Its case is that one shot each was fired by the accused appellants from their fire arms. Under the facts and circumstances of the case, it is not a fit case in which death sentence should be awarded. 24. Consequently, the aforesaid appeals and revision are dismissed, The conviction and sentence of the accused appellants Balkar Singh and Sardul Singh under Section 302, Indian Penal Code and Section 27, Arms Act are maintained.Appeal Dismissed. *******