P. K. Babri,j. ( 1 ) THIS appeal has been brought against judgment datedmarch 26, 19s7, of an Additional Session Judge, New Delhi, convicting theappellant of an offence punishable under Section 304, Part I, read withsection 34 of the Indian Penal Code (for short 1pc ) and a subsequentorder of the same date sentencing the appellant to undergo rigorousimprisonment for ten years and to pay a fine of Rs. 500. 00 and in default, toundergo further rigorous imprisonment for three months. ( 2 ) FACTS, in brief, are that on 13/03/1980, some unknown personhad given a message to Police Control Room which was recorded in Dailydiary No. 91 at 3. 14 P. M. to the effect that some persons in a taxi hadthrown out a person on Road No. 53, Near Ayurvedic Hospital Punjabibagh and that person appeared to be dead. The Control Room conveyedthis message to Police Station Punjabi Bagh where it was recorded at serialno. 17a in Daily Diary at 3. 25 P. M. and SI Sukhbir Singh, who waspresent in the area in connection with holding some inquiry in Daily Diaryno. l7a at East Avenue Road, was sent a copy of the Daily Diary reportthrough Constable Suraj Bhan along with police vehicle No. DHD312. SISukhbir Singh had reached the spot accompanied by Constable Bhopal Singhand Constable Suraj Bhan in the said vehicle being driven by Head Constable Amar Singh and he found that Police Control Room Van. which wasunder the charge of Head Constable Ram Parkash (PW 13) had alreadyarrived and he made query from the injured person lying there, whose namewas disclosed by him as Kishan Lal. At that time, PW2 Subedar Sher Singhwas also present and the injured Kishan Lal was stated to have made thestatement which was recorded in Urdu and was reproduced in his own wordsin the Rukka Ex. PW12/a which was signed by Head Constable Ramparkash, witness Sher Singh and duly attested by SI Sukhbir Singh. At that time, PW2 Subedar Sher Singhwas also present and the injured Kishan Lal was stated to have made thestatement which was recorded in Urdu and was reproduced in his own wordsin the Rukka Ex. PW12/a which was signed by Head Constable Ramparkash, witness Sher Singh and duly attested by SI Sukhbir Singh. Thefree translation of the said dying declaration is to the following effect : "that about a month earlier Sri Ram, real brother of the Kishanlal, had been stabbed and they (Sri Ram and his family) suspectedkishan Lal of being instrumental in that stabbing and with aview to take revenge at about noon time appellant-Prem Kumars/o Sri Ram, accompanied by one Puppy, one Bengali and anotherperson, whose name he did not know assaulted at him with knivesand hockeys at a hillock in New Delhi while Prem with knife andothers with hockeys bad assaulted at him and after putting him ina taxi had thrown him out at that spot and that he was about todie and he should be taken to the hospital immediately. " ( 3 ) IT was recorded in the endorsement made by SI Sukhbir Singh inthis dying declaration that Kishan Lal was in awful pain and was keeping hiseyes closed and thus, be was not in a position to sign the said statement. Hetook steps to send the injured Kishan Lal in the PCR Van and Kishan Lalwas admitted in the hospital as per MLC Ex. PW28/a with the history of havling been stabbed and beaten by somebody. He was admitted in the hospitaat 4. 10 P. M. and at that time he was conscious but was smelling of alcohol. However, he succumbed to his injuries at 4. 25 P. M. as per death summaryex. PW31/a due to cardio-respiratory arrest. Earlier to that Rukka was sentthrough Constable Bhopal Singh for registration of the case. A case undersection 307 read with Section 34 Indian Penal Code came to be registered at Police Station130panjabi Bagh as per copy of the FIR Ex PW42/c at 4. 05 P. M. vide Dailydiary No. 20a. PW31/a due to cardio-respiratory arrest. Earlier to that Rukka was sentthrough Constable Bhopal Singh for registration of the case. A case undersection 307 read with Section 34 Indian Penal Code came to be registered at Police Station130panjabi Bagh as per copy of the FIR Ex PW42/c at 4. 05 P. M. vide Dailydiary No. 20a. SI Sukhbir Singh also reached the hospital and learnt aboutthe death of the injured Kishan Lal and converted the case from Section 307ipc to Section 302 IPG and was met by PW23 Kanhaiya Lal and PW36suraj Parkash, who ar e residents of the same place as decased and bad eemeto the hospital on learning about deceased having been taken to the hospitaland they accompanied the police in search of Prem Kumar and at about7 P-M- on the same day Prem Kumar was arrested his personal search resulted in seizure of one ration card belonging to. the deceased and one electricitybill Ex. PE also in the name of the deceased, which were taken into possession vide memo Ex. PW23/b. Blood stained shrit Ex. PI, which was worn bythe appellant at that time, was also taken into possession and converterinto sealed parcel. This memo was also signed by the said two witnesses. On the following day, in the presence of the same witnesses the appellant wasinterrogated and he is stated to have made a disclosure statement which wasreduced into writing Ex. PW36/c and in pursuance of the said disclosurestatement, relevant portion of which was that he had concealed the dagger,which was used in the occurrence, in the garbage can placed near the latrinesat Guru Ravidas Road, Lane No. 4 Dev Nagar and he could point out thesame and get it recovered and thereafter he got recovered the dagger fromthat place of which Sketch Ex. PW36/b was prepard. The upper smallportion of the blade of the dagger stood broken. PW36/b was prepard. The upper smallportion of the blade of the dagger stood broken. The same also was foundto be blood stained and was converted into sealed parcel and taken intopossession vide recovery memo Ex PW36/a. The appellant had also diclosed about the place of occurrence where the deceased was subjected to stabbing and beating and had led the police party and pointed out the place inthe said hillock near Railway Line close to Bhutan Embassy from whichplace certain broken pieces of bottles of rum and wine some pieces ofcigarette, and some blood were found and which were taken into possessionvide memo Ex PW15a. This memo is signed by SI Ram Chander and ASIRam Saran. At that time, it appeared that public witnesses were not joinedfrom the place where the injured was found lying in Punjabi Bagh, bloodstained earth, one blood stained paper and control earth were also taken intoposssesion and converted into sealed parcel vide memo Ex. PF. SI Sukhbirsingh also held the inquest proceedings and had taken into possession thesealed parcel containing the Pajama of the deceased vide memo Ex. PW14/a. The postmortem was perfomed by Dr. Bharat Singh (PW2) who noticed thefollowing injuries: "1. One incised wound over the right frontal area placedobliquely size I" into skin deep covered by blood clot. 2. Multiple scattered abrasion on the front neck and upper partof the chest of various sizes and shapes red in colour. 3. Multiple contusion on the lateral size of right arm and forearm,all overwearing in size from 3" X 1 " to 2" X 1". Blue redin colour. 4. Contusions on the back of right hand all over, bluish red incolour. 5. Contusion with abrasion on right side of chest in an areaof 6" @ 2", red in colour. 6. Two linear scretches over the right side, of abdomen crossing,each other as shown in diagram size was 7" long. 7. Abrased contusion on the right thigh upper front part in anarea of 12" X 9" bluish red in colour. 8. Contusion on the front mid part thigh placed transversely, size 6" X 1" bluish red in colour. 9. One incised would on the right gluteal area placed transverselysize 1 X " X ". Wound was spindile. 10 One incised wound in front of right thigh lower part size1" X 1/10" X 1/10". 11. 8. Contusion on the front mid part thigh placed transversely, size 6" X 1" bluish red in colour. 9. One incised would on the right gluteal area placed transverselysize 1 X " X ". Wound was spindile. 10 One incised wound in front of right thigh lower part size1" X 1/10" X 1/10". 11. One incised would on the front of right leg, near the knee jointsize half inch into skin deep. 12. Multiple abrasion with contusion on the front of right leg allover bluish red in colour. 13. Multiple contusion on left leg all over bluish red in colour. 14. One incised wound on the left buttock placed transveresely,size 1" X 1/10" X 2/10". 15. Contusion all over left buttock and upper part back of thigh inan area of 18" X 6" bluish red in colour. 16. Multiple abrasion contusion on the back of chest and abdomen,placed in various directions bluish red in colour. 17. Multiple abrasion with contusions all over the outer side of theleft arm and forearm, bluish red in colour. "the doctor opined that all injuries were anti-mortem and injuriesnos. l. 6,10,lland14 were possible by sharp edged weapon and otherinjuries were possible by blunt object such like lathi or stick, and death wasdue to severe pain resulting from multiple injuries but injuries were notsufficient to cause death in ordinary course of nature and he proved hisreport Ex. PA in this connection. The sample blood of the deceased and thekurta of the deceased were taken off by the doctor and converted intosealed parcel which were also taken into possession by Investigating Officer. ( 4 ) AS the place of occurrence fell within the jurisdiction of Policestation Chanakyapuri, the, case was got registered at Police Stationchanakyapuri vide copy of the FIR Ex. PH and the further investigation wastaken over by SI Lala Ram (PW41) It appears that the appellant had alsopointed out the wineshop from where the bottles of liquor were purchased,and the said pointing out memo is Ex. PW22/a. Prem Kumar, Gopalmohinder Singh @ Pappi and Pranab @ Bengali were tried by theadditional Sessions Judge for offence punishable under Section 302 read withsection 34 IPC. PW22/a. Prem Kumar, Gopalmohinder Singh @ Pappi and Pranab @ Bengali were tried by theadditional Sessions Judge for offence punishable under Section 302 read withsection 34 IPC. The Additional Sessions Judge after considering theevidence came to the conculsion that dying declaration given by the deceasedkishan Lal was by itself sufficient to bring home the offence as it wastruthful and did not suffer from any infirmities but as identities of otherthree culprtis mentioned in the dying declaration could not be linked withthe other three accused, so he acquitted the other three accused while heconvicted the appellant on the basis of the said dying declaration alone butalso held that there was sufficient evidence proved on the record showingthat the appellant had taken the deceased with him on that day at about10 AM and that he had got recovered the weapon of offence i. e. the daggerin question and bad also pointed out the placed of occurrence and thus, beheld him guilty of the offence punishable under Section 304, Part I, readwith Section 34 IPC. ( 5 ) I may mention here that the case property was also sent to thecfsl and the reports Ex. PW41/a and Public Witness 41b were received which clearlydepicted that the blood of the deceased was of b group which was found onhis pajama and kurta and was also found on the dagger in question. Althoughthe appeal was filed by the appellant through Shri I. S. Arora Advocate. yet when the appeal reached for hearing before me in spite of the fact thatthe case was adjourned a number of termes counsel for the appellant failedto appear; production warrents of the appellant were issued who appearedbefore me on 19/12/1988 and requested the court to fix a date forarguments and he would see that his counsel appeared on the next date toargue the matter but in spite of the fact that the case was fixed as per hisrequest, yet his counsel never appeared and again the appellant was summoned and he was brought from Jail on 22/02/1989 and he then requestedthe court that he was not in a position to engage any counsel as his previouscounsel had not appeard to conduct the case and so a counsel at the Stateexpense may be provided to him. I appointed Miss Maldeep Sidhu Advocate,as Amicus Curiae the State expense to argue the matter. She had advancedelaborate arguments in support of the appeal. I appointed Miss Maldeep Sidhu Advocate,as Amicus Curiae the State expense to argue the matter. She had advancedelaborate arguments in support of the appeal. The Court expresses itsgratitude to the counsel for rendering able assistance in the matter. ( 6 ) THE first attack of the learned counsel for the appellant is withregard to the veracity and the truthfulness of the alleged dying declarationmade by the deceased. She has contended that the alleged dying declarationhad not been recorded in question and ansewer form by the police and noefforts had been made to get the statement recorded by any Magistrate andthe statement bad not been also got signed or thumb impressed by thedeceased. So, the said statement should not be taken into consideration. Shealso pointed out that Constable Bhopal Singh, who was present at the time ofrecording of the dying declaration bad not in his statement in court made anyreference to any such dying declaration and there appeared many discrepanciesin the statement ofpw12 Subedar Sher Singh which also would throw lot ofdoubt on the veraicy of the dying declaration. ( 7 ) WHILE narrating the facts it has already been pinpointed thatdeceased was subjected to many stab injuries and belows given by bluntweapon and had multiple injuries and was almost on the verge of death. It isclearly recorded by SI Sukbbir Singb that deceased was groaning in awfulpain and was keeping his eyes closed when he made the dying declarationand the anxiety of the police at time was to rush him to hospital for givinghim medical aid if the same could save the life of the deceased. So, there wasvery little time available with SI Sukhbir Singh in making any efforts to getany higher officer or Magistrate for getting recorded the dying declarationand he bad given good explanation for not getting the signatures or thumbimpression of the deceased on the dying declaration as the man was on theverge of death and was not even opening his eyes and was in lot of pain thatthe deceased could not be made to sign or thumb impressed the said dyingdeclaration. As far as Constable Bbopal Singh is concerned, it is true that heaccompanied SI Sukbbir Singh to the spot and appeared as PW7 and badnot made any reference to any dying declaration mady by the deceased butthe fact should not be lost sight of that constables have to perform some jobat the spot of keeping the spot guarded and they might not pay any attentionto the investigation being done by the Investigating Officer. No question wasput to Constable Bhopal Singb eliciting from him whether be bad beard thedying declaration at the spot from the mouth of the deceased. So, the merefact that Constable Bhopal Singh had not made any reference to the dyingdeclaration in his testimony in court does not take away the authenticityfrom the said dying declaration. As far as Subedar Sher Singh (PW12) isconcerned, he was the first man who had seen the deceased being thrownout of the taxi and his making request to some inmate of Kothi No. 28punjabi Bagh, to inform the police and he did state that injured bad told thathis nephew, one Bengali, one pappi and one other whose name he did notrecollect, bad caused him injuries. It appears that be bad forgotten the nameof the said nephew, which was given by the deceased in his dying declaration. The other discrepancy pointed out in his testimony is that he mentioned thathead Constable Ram Parkash had also reduced into writing the dyingdeclaration but the case of the prosecution is that no such dying declarationwas scribed by Head Constable Ram Parkash. It is to be remembered herethat it is admitted even by Subedar Sher Singh as also deposed to by Headconstable Ram Parkash that local police had arrived at the spot almost whenthe Control Room Van had reached. So, it is evident that Head Constableram Parkash, who reached a few moments prior to arrival of the localpolice, had perhaps put some questions to the injured and at that momentsi Sukhbir Singh also arrived and the dying declaration was taken down bysi Sukbbir Singh. Subedar Sher Singh categorically admits that he hadsigned the said dying declaration recorded by the local police. He identifiedhis signatures on Ex PW12/a at point x . PW12 Subedar Sher Singh hasbeen found to be truthful witness by the trial Court for very good reasons. Subedar Sher Singh categorically admits that he hadsigned the said dying declaration recorded by the local police. He identifiedhis signatures on Ex PW12/a at point x . PW12 Subedar Sher Singh hasbeen found to be truthful witness by the trial Court for very good reasons. He was frank enough to depose that he could not identify any of the culpritswho had gone away in the taxi after throwing out the injured on the road. ( 8 ) COUNSEL for the appellant has also pointed out that the dying declaration had not been taken by SI Sukhbir Singh on any separate paper and hehad at first narrated the facts as to how and in what manner he arrived atthe spot and who were the persons whom he found present at the spot andthereafter, he had written the said dying declaration in inverted commas. Itis argued that if there was some urgency required in taking down the dyingdeclaration the Investigating Officer would have not proceeded to record thedying declaration in the manner he had recorded. Mere fact that theinvestigating Officer was recording the dying declaration after narrating afew facts as to the manner he came to the spot would not, in my opinionthrow any doubt regarding the authenticity of the dying declaration. It isalso pertinent to mention that in the dying declaration except for the nameof the appellant and his parentage and his close relationship with the deceased the particulars of other three culprits were not detailed out. If the dyingdeclaration had not been made in a natutal manner by the deceased and badbeen fabricated later on, as is the argument advanced, in consultation withthe relations of the deceased, then the vague particulars of other culpritswould have been mentioned in the dying declaration and some specific factswould have been mentioned to identify theother culprits as well. So, I agreewith the reasons given by the Additional Sessions Judge in giving the findingsthat dying declaration had been made by the deceased in the manner allegedby the prosecution and the same is the truthful one. It is not disputed beforeme that the appellant s father had received stab injuries earlier and a casewas registered and that had gone untraced. So, the motive given in the dyingdeclaration for the appellant nursing some suspicion about the band ofdeceased in that occurance and taking revenge on that score can be considered to be plausible one. It is not disputed beforeme that the appellant s father had received stab injuries earlier and a casewas registered and that had gone untraced. So, the motive given in the dyingdeclaration for the appellant nursing some suspicion about the band ofdeceased in that occurance and taking revenge on that score can be considered to be plausible one. It is settled law that if the dying declaration isproved to be truthful one then the same alone can be the basis for bringinghome the offence to the accused. In Khushal Rao v. State of Bombay, air 1958 SC 22 , it was held that: "in order to pass the test of reliability, a dying declaration has tobe subjected to a very close scrutiny, keeping in view the fact thatthe statement has been made in the absence of the accused whohad no opportunity of testing the varacity of the statement bycross-examination. But once, the Court has come to the conclusionthat the dying declaration was the truthful version as to theciscumstances of the death and the assailants of the victim, thereis no question of further corroboration. If on the other hand, thecourt, after examining the dying declaration in all its aspects, andtesting its varacity, has come to the conclusion that it is not reliableby itself, and that it suffers from an infirmity, then, withoutcoroboration it cannot form the basis of a conviction. Thus, thenecessity for corroboration arises not from any inherent weaknessof a dying declaration as a piece of evidence, but from the fact thatthe Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities. " ( 9 ) SAME principles were laid down by a Division Bench of this Courtin Om Prakash @ Billu Bhatia v. The State. 15 DLT (1979)277. The merefact that the dying declaration is not in question and answer form also, inmy opinion, is not sufficient to throw any doubt on the dying declaration inquestion regarding its authenticity and truthfulness. In Urgen Sherpa v. State of Sikkim, 1985 Crl. 15 DLT (1979)277. The merefact that the dying declaration is not in question and answer form also, inmy opinion, is not sufficient to throw any doubt on the dying declaration inquestion regarding its authenticity and truthfulness. In Urgen Sherpa v. State of Sikkim, 1985 Crl. L. J, 1988, a\division Bench of Sikkim High Courtbad an occasion to examine this question and it was held that the dyingdeclaration should not be seen as suspect merely because it had been recordedin a narrative and not in question and answer form, Normally the dyingdeclaration as far as possible should be recorded in question and answerform but mere omission to do so without any further defects in recording thedying declaration would not be sufficient to brush aside the dying declaration. In the present case the dying declaration has been recorded in narrative formbut it appear to be in the words uttered by the deceased and the same hadbeen put into inverted commas by SI Sukhbir Singh. So, I hold that in thepresent case it is proved beyond any shadow of reasonable doubt that dyingdeclaration bad been recorded and the same is truthful. ( 10 ) AS far as other evidence in support of the charge is concerned,pw1 Jail Singh, who had allegedly seen the occurrence at the spot, hadturned hostile and did not support the prosecution version. PW10 Shakuntia,widow of the deceased, did support the prosecution case on the point ofprem Kumar-appellant coming to the house and asking Kisban Lal toaccompany him and the appellant had told Kishan Lal that he had somework with him and Kishan Lal had gone. She had mentioned that sheherself was ailing at that time and one neighbour Prem (PW32) had come torender some assistance in the household work at that time. She had in herpolice statement mentioned about appellant suspecting her husband of beinginstrumental in appellant s father being stabbed but she expressed ignoranceabout these facts and denied having told the police that the appellant hadearlier given any threats to her husband for taking any revenge. She had alsoallegedly told the police that the appellant wanted her husband to give suretyfor someone and for that purpose the appellant had come to ask her husbandto accompany him. She had alsoallegedly told the police that the appellant wanted her husband to give suretyfor someone and for that purpose the appellant had come to ask her husbandto accompany him. She was confronted with the statement recorded undersection 161 of the Code of Criminal Procedure after taking permission of thecourt but she denied these facts whereas she admitted a particular fact thather husband bad gone in the morning at about 10 A. M. with the appellant. To the same effect is the statement of Prem (PW32) who is an independentwitness. She also mentioned that Kishan Lal had taken the ration card withhim. Public Witness 11 Gulab Singh, son of the deceased, however, for reasons knownto him best did not care to support the prosecution case of his having knownthat the appellant had taken his father on that day in the morning so thathis father could stand surety but he was declared hostile and in cross-examination by the Public Prosecutor he stated that his mother had told himthat the appellant had come to the house for taking his father on thatmorning. It is to be remembered that he is cousin brother of the appellantand he might have been persuaded by some close relation not to give anystatement incriminating the appellant for the offence. Be that as it may,there is no reason to doubt the testimony of PW32 Prem and PW10shakuntia. ( 11 ) APART from this fact that it is appellant who bad taken the deceased in the morning, the recovery of electricity bill in the name of the deceasedand the ration card of the deceased from the personal search of the appellant at the time of arrest also renders the statements of Shakuntia and Premcorroboration that it was appellant who had taken the deceased with him sothat deceased could furnish some surety. Kanhaiya Lal witness had turnedhostile but he admitted his signatures on all material documents and did notgive any explanation as to why he signed the documedts at the instance ofpolice if nothing had happened in his presence. The other public witnesssuraj Prakash (PW36) had wholly corroborated the prosecution case onall points. Nothing has come out from his cross-examination to show that hehad any reason to depose against the appellant. He is not shown to be anyrelation of the deceased or connected with the deceased s family. He is asmuch neighbour of the deceased as of the appellant. So. Nothing has come out from his cross-examination to show that hehad any reason to depose against the appellant. He is not shown to be anyrelation of the deceased or connected with the deceased s family. He is asmuch neighbour of the deceased as of the appellant. So. there is no reasonfor not placing implicit trust in the testimony of such an independentwitness. ( 12 ) THE learned counsel for the appellant has, however, argued thatsura) Parkash has not in his examination-in-chief narrated the facts givenout by the appellant in his disclosure statement. I do not think it makesany difference to the prosecution case. After all the witness did state thatthe disclosure statement was made by the appellant and he had signedthesame and he had got recovered the dagger in question from that particularplace. It is also significant to mention that the blood, which was found onthe blade of the dagger, was of same human group as the blood of thedeceased. This renders further assurance to the prosecution case that thedagger in question was used in committing the offence by the appellant. It isalso to be remembered that it is the appellant who in fact pin-pointed theplace of occurrence and the broken pieces of liquor bottle and some saltishestables were recovered from that place and so also the blood stained stone. Hence, from all these facts which stood proved on record beyond anyshadow of doubt the Additional Sessions Judge was right in coming to theconclusion that it is the appellant alongwith three other culprits (whoremained unknown) that the offence in question was committed. So, theappellant has been rightly convicted for the offence punishable undersection 304, Part I read with lection 34 IPC. The appellant does not deserveany leniency in sentence inasmuch as be has done away with the life of bisown real uncle by inflicting knife injuries while his companions gave hockeyblows to the deceased. So, I maintain the conviction and the sentences of theappellant and dismiss this appeal.