G. P. MATHUR, J. Baibir has filed this appeal against the judgment and order dated 23-3-1979 of IV Additional Sessions Judge, Etah in S. T. No. 262 of 1978 by which he has been convicted under Section 302, IPC and has been sentenced to imprisonment for life. Two other persons, namely, Ram Singh and Shahab Uddin were also changed along with the appellant under Sec tions 302/34, IPC but they were acquitted. 2. The charge against the accused was that at about 4 p. m. on 1-12-1987 he fired upon the deceased Surajpal by a country made pistol. The prosecu tion in support of its case examined in all 8 witnesses and also relied upon dying declarations made by the deceased. The defence of the appellant was that the case of the prosecution was false and he had been implicated on account of village party bandi (groupism ). No evidence was adduced by the appellant. The learned Sessions Judge believed the prosecution case and con victed and sentenced the appellant as stated above. Ram Singh and Shahab Uddin who were not alleged to have caused any injury and were charged under Sections 302/34, IPC were acquitted. 3. The F. I. R. of the incident was lodged by the deceased Surajpal himself at 4. 45 p. m. on 1-12-1977 at police station Amapur on the basis whereof a case was registered as crime No. 241 of 1977 under Section 307, IPC. The detailed version given in the FIR would be considered later as the same is relied upon as dying declaration by the prosecution. After the F. I. R. was lodged, the deceased Surajpal was taken to P. H. C. was lodged, the deceased Surajpal was taken to P. H. C. Amapur where he was medically examined at 5 p. m. by P. W. 3 Ashok Kumar Doctor found the following ante mortem injuries on the body of Surajpal. (1) Gun shot, wound 3/4 cm. x 3/4 cm. on the abdomen, 9 cm. below umbilious, around the wound, there was blackening, margins inverted, would was bleeding. This wound appeared to be wound of entrance. (2) Gun shot wound of exit 1 cm. x 1 cm. over left hip, margins everted no blackening around the wound. " In the opinion of the doctor the injuries were caused by gun shot and were fresh in duaration. This wound appeared to be wound of entrance. (2) Gun shot wound of exit 1 cm. x 1 cm. over left hip, margins everted no blackening around the wound. " In the opinion of the doctor the injuries were caused by gun shot and were fresh in duaration. He further advised X-ray examination of the injuries and the case was referred to district hospital. After the case had been registered at the police station, P. W. 4 Ganesh Chandra Varma S. I. commenced investi gation. He received information that Suraj Pal had been taken to Bus-stand for proceeding to Etah hospital. He therefore, went to the Bus-stand and recorded the statement of Suraj Pal under Section 161, Cr. P. C. A copy of which has been filed as Ex ka 2 on the record. He recorded statement of some witnesses on 2-12-1977, conducted spot inspection and collected plain and blood stained earth from the spot. Subsequently the investigation was taken over by P. W. 6 Fateh Alam Khan who completed the same and submitted charge-sheet against the three accused, At 11. 55 a. m. on 2-12-1977 P. W. 8 Saved Mahphooz Ali Executive Magistrate recorded the statement of Surajpal deceased in the district hospital. A copy of which has been filed as Ex. Ka 19 on the record. It appears that Suraj Pal sucumbed to his injuries in the district hospital on 2-12-1977 and thereafter post mortem examination on his body was performed by P. W. 7 Dr. Virendra Srivastava at 11. 45 a. m. on 4-12-1977. Following ante-mortem injuries were found on the body of the deceased : (1) Gun shot wound 1/2 cm. x 1/2 cm. on the public region. 11 cms below and 2 cms. left to unabilious wound, of entry. (2) wound of exit 1 cm. x 1 cm. on the left buttock 6 cm below the pelvis bone and 5 cms. left to natal claft. On internal examination, Doctor found that the walls of abdomen were punc tured and peritoneum had also been punctured. Cavity contained blood and pus. On further direction intestine was found punctured on left lower quarter and at rectum. Cavity of abdomen was full of black fluids. In the opinion of the doctor the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. 4. Cavity contained blood and pus. On further direction intestine was found punctured on left lower quarter and at rectum. Cavity of abdomen was full of black fluids. In the opinion of the doctor the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. 4. The prosecution in order to establish the case against the appellant mainly relies upon the dying declarations made by Surajpal deceased. It is, therefore, necessary to consider them in detail. 5. As stated earlier the F. I. R. of the incident was lodged by the deceased Surajpal himself at 4. 45 p. m. on 1-12-1977. The version given in the F. I. R. is as follows "my name is Suraj Pal, fathers name is Sunder Singh Dhobi and am resident of Shikanderabad. I went to Munir Nagar along with my elder brother P. W. 1 Roshan to collect clothes. When I reached near the outer verandah (bailthaka) of accused Shahab Uddin. I saw that all three accused, namely, Balbir Ram Singh and Shahab Uddin were sitting there, Balbir said to me that I had not offered him Salam. On this I said that salams are offered to elderly people. On this all three accused stood up and Balbir said that Dhobi (Washerman) should be set right and he fired from his pistol upon me which hit me on the left side. All the three accused there after lifted me and left me near the well of Lakhan Singh. Roshan and Manphool Singh brought me to the police station. The incident took place at 4 P. M. 6. It is noted in the F. I. R. (Ex. Ka 7) that the same read over to Surajpal and thereafter he put his thumb- impression thereon. 7. The copy of the F. I. R. and Chick report have been proved by P. W. 5 Bani Singh, Head Constable of Police Station Amapur. He stated that at about 4. 45 P. M. on 1-12-1977 Roshan and Manphool Singh had brought Surajpal to the police station on a cot and thereafter he had written the report on the dictation of Surajpal, aforesaid. He has further stated that he wrote exactly the same words which were dictated by Surajpal and after the version had been read over to him he put his thumb-impression thereon. He has further stated that he wrote exactly the same words which were dictated by Surajpal and after the version had been read over to him he put his thumb-impression thereon. In his cross-examination he has stated that he had not added or substracted anything from the statement given by Surajpal and had written only that much which was dictated by him. 8. P. W. 4 Ganesh Chandra Varma, S. I, of police station Amapur has stated that he recorded statement of Surajpal at the Bus stand on 1-12-1977 and has proved the same as Ex. Ka 2 on the recorded. This statement is exactly similar to the F. I. R. However, after stating that the three accused threw him near the well, few more lines have been added. It is further stated there that the accused are Badmash (criminals) and )n account of their fear no person of the village said anything. The accused are criminals and they had fired in furtherance of their common intention and that there was a feeling of terror in the village due to the assault made by the accused. In his cross-examination the witness stated that he did not find any blood near the place where the deceased was thrown nor did he give any report for chemical examination of the blood stained earth which had been collected by him from the spot. He denied the suggestion that he had not recorded statement of any witness. 9. P. W. 8 Sayed Maphooz Ali, Executive Magistrate, Etah recorded daying declaration of Surajpal at 11. 55 a. m. on 2-12-77 in the district hospital where the deceased gave following statement. 10. At about 4p. m. on 1-12-1977 Ram Singh son of Trilok Singh took me to village Munni Ka Negala which is one mile from my village. There I met Balbir son of late Hira Lal who is resident of said place. I along with Ram Singh and Balbir (accused) sat in a room of the house of Shahab Uddin (accused ). There was old enmity with Balbir. Shahab Uddin was not present while they were sitting in the room, Ram Singh pointed towards Balbir. I understood that both of them had brought me there for committing my murder. I immediately got up to leave the place when Balbir fired upon me from a country made pistol. There was old enmity with Balbir. Shahab Uddin was not present while they were sitting in the room, Ram Singh pointed towards Balbir. I understood that both of them had brought me there for committing my murder. I immediately got up to leave the place when Balbir fired upon me from a country made pistol. I fell down on the spot and became unconscious. Ram Singh and Balbir ran away from there. Some people of the village arrived at the scene after hearing the sound of gun shot and took me to another place, where I was made to lie down. When people from my village came to know of the occurrence, they brought me to the police station on a cot. From the police station I was taken to Amapur hospital and from there to district hospital, Etah. " 11. This dying declaration which is Ex. ka 19 on the record bears the following certificate in English by the doctor : "certified that Sri Surajpal is in fit state of mind to give the above statement and that the above statement has been recorded in my presence. " Sayed Mahphooz Ali also proved the aforesaid certificate given by the doctor and has stated that the same was written by Dr. Dang in his presence. This certificate ka 20. In his cross-e animation the witness has stated that when he reached near the deceased, he found some persons present there but before recording his statement he removed all of them. He did not know as to who were there and that talks the deceased had with them. To a question put by court, the witness stated that the deceased was not uncon scious and he was properly understanding the questions put by him and after understanding the questions he used to give reply. 12. P. W. 1 Roshan is the real brother of the deceased. He has stated in his examination-in-chief that when his brother was shot in Munir Nagar, he was not present on the spot. The witness was declared hostile and was cross-examined by the State Counsel. In his cross-examination he stated that he received information at 4 p. m. that some one had shot his brother and then he went to Munir Nagar where he found him lying hear the well of Lakhan. He did not enquire from his brother as to who had shot him. In his cross-examination he stated that he received information at 4 p. m. that some one had shot his brother and then he went to Munir Nagar where he found him lying hear the well of Lakhan. He did not enquire from his brother as to who had shot him. He has further stated that his brother was himself saying that Balbir, Shahab Uddin and Ram Singh had shot him near the baithaka (outer verendah) of Shahab Uddin. He further stated that his brother was saying that Balbir had shot him from pistol at about 4 p. m. the accused had said that the dhobi (washerman) had not offered them salam and on this a shot was fired. In cross-examination by the defence, the witness stated that he came to Etah next day and at that time Suraj Pal was in senses. 13. P. W. 2 Manphool Singh has stated that Suraj Pal was assaulted at 4 p. m. in Munir Nagar, but he did not see the occurrence, when he saw a crowd near the well of Lakhan Singh he went there and found Surajpal lying in an injured condition. This witness was also declared hostile and was cross-examined by the State Counsel. In cross-examination he stated that he did not enquire from any one as to who had fired upon Suraj Pal. He denied to have taken the deceased to the police station. 14. Both the eye-witnesses in this case have turned hostile. However, the deceased gave there statements which are relied upon as dying declarations by Ihe prosecution. The first version of the occurrence is the F. I. R. which was lodged by the deceased himself within 45 minutes of the assault made upon him. In the F. I. R. Surajpal has clearly stated that the appellant Balbir fired upon him from a pistol near the baithaka of Sahab Uddin. This place is at a distance of two miles from the police station where the F. I. R. was lodged at 4. 45 p. m. The version given in the F. I. R. finds complete corroboration from the medical evidence as the injury report Ex. Ka 1 and the post mortem report Ex. Ka 18 show that gunshot injuries had been caused to the deceased near the abdomen and there was blackening around the wound of entry. 45 p. m. The version given in the F. I. R. finds complete corroboration from the medical evidence as the injury report Ex. Ka 1 and the post mortem report Ex. Ka 18 show that gunshot injuries had been caused to the deceased near the abdomen and there was blackening around the wound of entry. The fact that the injury was caused on the abdomen and that there was blackening shows that the assailant was in front of the deceased and was also at a close distance. Therefore, the deceased had full opportunity to see and identify the assailant. It cannot be doubted that the incident took place at about 4 p. m. as the F. I. R. was lodged at 4. 45 p. m. and medical examina tion was done at 5 p. m. in P. H. C. , Amapur. Thus the version given in the F. I. R. by the deceased that he was fired upon at 4 p. m. is fully established. There Is absolutely no material on record which may cause any doubt on the veracity of the F. I. R. In our opinion it is a truthful version of the incident given by the deceased himself wherein he stated in clear words that the appel lant Balbir fired upon him by pistol. 15. P. W. 8 Sayed Mahphooz Ali Executive Magistrate recorded the statement of Surajpal at 11. 55 a. m. on 2-12-77 in the district hospital, Etah. The witness has stated that Surajpal was in fit mental condition at the time of statement. He has also stated that the deceased was not unconscious and used to give answers after properly understanding the questions put by him. The dying declarations (Ex. Ka 19) also bears a certificate by Dr. Dang that Surajpal was in fit state of mind to give the statement. There is no reason to doubt the statement given by P. W. 8 and also the certificate given by Dr. Dang that Surajpal was in fit mental condition to give statement. In this statement also Surajpal said in clear words that Balbir fired upon him from a country-made pistol or rifle and the shot pierced left lower side of his abdomen. The role of shooting has been assigned to Balbir appellant. There is absolutely no reason to place reliance upon the dying declaration recorded by P. W. 8. In this statement also Surajpal said in clear words that Balbir fired upon him from a country-made pistol or rifle and the shot pierced left lower side of his abdomen. The role of shooting has been assigned to Balbir appellant. There is absolutely no reason to place reliance upon the dying declaration recorded by P. W. 8. The only criticism made by the learned counsel for the appellant is that the same was not recorded in question-answer form. The witness has said that he had written the answers given by Surajpal deceased in a narrative form. The mere fact that the question put by the Magistrate were not recorded in dying declaration, is no ground for rejecting the same. The answers given by the deceased are very clear and we have no reason to doubt that a person who holds the responsible position of an Executive Magistrate would have committed any mistake while recording answers given by Surajpal deceased in narrative form. Learned counsel for the appellant has further submitted (hat this dying declaration of the deceased should not be accepted as it is a tutored statement and was not the own version of the deceased himself. In support of his argument learned counsel has placed reliance upon the statement given by the Magistrate that when he reached near the injured he found that some people were present. There is no evidence on record as to who these people were nor there is any evidence to the effect that they had tutored the deceased to give a statement implicating the appellant. The Magistrate had taken the precaution of removing these persons from the spot so that they may not in any manner affect the statement of the deceased. In fact P. W. 1. Roshan has said in his cross-examination by the defence that some persons of Munir Nagar had come to his brother Surajpal when he was at Etah. The deceased belonged to Sikanderabad and the appellant belongs to Munir Nagar. So if at all the persons from the own place of the appellant were near Surajpal and not from his village. There is no material on record to show that any one had asked or instructed Surajpal to implicate the appellant in the case. The deceased belonged to Sikanderabad and the appellant belongs to Munir Nagar. So if at all the persons from the own place of the appellant were near Surajpal and not from his village. There is no material on record to show that any one had asked or instructed Surajpal to implicate the appellant in the case. Thus we are not prepared to hold that any tutoring had been done or that Surajpal assigned the role of shooting to the appellant Balbir on account of any tutoring. We are of the opinion that a turthful and independent version of the incident was given by Surajpal deceased in his statement to the Magistrate. 16. Learned counsel for the appellant has then submitted that there are serious contradictions in the version of the incident as given in the F. I. R. (Ex. ka 7) and the dying-declaration as recorded by the Magistrate (Ex. ka 19) and therefore, the same should not be relied upon. It is true that there is some difference in the two versions. While in the F. I. R. it is said that the deceased had gone to Munir Nagar for collecting clothes and when he reached near the Baithaka of Shahab Uddin he found all the there accused sitting there and Balbir told him that he had not offered him salam. It is further stated therein that when the deceased said salam is offered to elderly people Balbir said that the Dhobi should be set right and then he fired upon him. In the dying declaration recorded by the Magistrate, it is said that one Ram Singh of his village took the deceased to Munni Ka Nagala where Balbir met him. Thereafter accused Ram Singh and Balbir and the deceased sat in a room of the house of Shahab Uddin. Ram Singh pointed something to Balbir from which the deceased understood that he had been brought for the purpose of killing and as soon as he started to leave he was by Balbir. The difference is only in some verbal exchange of words which took place prior to actual shoting. So far as the names of accused are concerned, they are common in the both except that in Ex. Ka 19 it is said that Shahab Uddin was not present in his house. The place of occurrence is also same. The difference is only in some verbal exchange of words which took place prior to actual shoting. So far as the names of accused are concerned, they are common in the both except that in Ex. Ka 19 it is said that Shahab Uddin was not present in his house. The place of occurrence is also same. In the first information report it is said as near the baithaka of Shahab Uddin while in Ex. Ka 19 it is said that when he was about to leave the house of Shahab Uddin, firing was done. Therefore, in both the versions the occurrence is said to have taken place near the house of Shahab Uddin. This also finds corroboration from the statement of P. W. 4 Ganesh Chandra Varma, S. I. who visited the spot and collected blood stained earth from a place which is in front of the Baithaka of Shahab Uddin. In both the versions the occurrence is said to have taken place at 4 p. m. on 1-12-1977. The specific role of shooting is assigned to appellant Balbir in both the versions. In Ex. Ka 19 it is said that he was shot by a country made pistol made of rifle. The medical evidence shows that the deceased sustained a single gun shot wound of the size 3/4 cm. x 3/4 cm. and there was an exit wound on the left hip which shows that a bullet had pierced the body. A bullet injury can be caused by a rifle and therefore, the medical evidence completely corroborates the version in the Ex. Ka 19 that a country made pistol of rifle barrel was used. Thus there is no contradiction between the two dying declarations so far as the basic features of the case are concerned. The mere fact that there is some difference in the reason given in the two versions as to why the appellant fired upon the deceased can be no ground for rejecting the dying declaration in toto. We have carefully examin ed both the dying declarations and in our opinion they give truthful version of the incident so far as the time, place, name of the appellant and the weapon used are concerned. There is absolutely no reason not to place reliance upon them. We have carefully examin ed both the dying declarations and in our opinion they give truthful version of the incident so far as the time, place, name of the appellant and the weapon used are concerned. There is absolutely no reason not to place reliance upon them. Thus it is conclusively established that it was the appel lant Balbir who had fired upon the deceased Surajpal at 4 p. m. on 1-12-1977 near the house of Shahab Uddin. 17. The statement of the deceased as recorded under Section 161, Cr. P. C. by P. W. 4 Ganesh Chandra Varma also amounts to dying declara tion. Learned counsel for the appellant has submitted that it cannot be believed that the Sub-Inspector went to the Bus stand immediately and record ed the statement of Surajpal. He has further submitted that first part of this statement is more or less a copy of the F. I. R. and therefore it is a suspect document. We have carefully examined the statement of P. W. 4 and in our opinion nothing has come out from his statement which may cause doubt upon his version, or show that he did not recorded the statement of the deceased at the bus stand. However, even we exclude this statement which is Ex. Ka 2 on the record from consideration, not much difference will be made as O e prosecution case is fully established from the other two dying declarations, namely, Ex. Ka 7 and Ex. Ka 19. 18. Learned counsel for the appellant has when submitted that as both the prosecution witnesses had turned hostile reliance should not be placed upon the dying declarations. It is true that both the eye- witnesses have not supported the prosecution case. Learned State Counsel has submitted that P. W. 1. Roshan is Dhobi (Washerman) by caste and he resides in a village. It is mentioned in Ex. Ka 2 that the accused are Badmansh (Criminals) and they had created a terror in the village. According to learned State Counsel looking to the social conditions prevailing in the rural areas in the country, the possibility that threat was given to P. W. 1 Roshan not to give evidence against the appellant cannot be ruled out. The statement of the two eye witnesses definitely shows that they are trying to conceal the truth and are not giving correct version. The statement of the two eye witnesses definitely shows that they are trying to conceal the truth and are not giving correct version. P. W. 1 Roshan who is the own brother of the deceased has stated in his cross-examination that he did not enquired from his brother as to who had fired upon him. It is impossible to believe that if a person sees his brother in an injured condition, he would not enquire as to who has assaulted him. Almost similar statement has been given by P. W. 2 Manphool Singh to the effect that he did not enquire from the people collected near the injured as to who had fired upon Surajpal. We may point out here that even P. W. 1 Roshan has said that the deceased was saying that Balbir had fired upon him from pistol. This statement of P. W. 1 Roshan is an evidence of statement given by the deceased immediately after he was assaulted and is admissible as a dying declaration against the appellant. 19. We, therefore, uphold the finding of the trial court that it was the appellant who had fired upon the deceased from a country made pistol. The appellant is thus guilty of having committed an offence under Section 302, IPC. 20. Learned counsel for the appellant has submitted that accused Balbir was aged less than 16 (sixteen) years at the time of the commission of the crime and therefore, the sentence of life imprisonment imposed upon him is illegal. According to learned counsel the appellant should not have been sent to jail in view of the provisions of Juvenile Justice Act, 1986, in this connection, it may be mentioned here that the occurrence took place on 1-12-1977, the charge was framed against the appellant by learned Addl. Sessions Judge on 22-11-1972 and the judgment in the case was pronounced on 23-3-1979. The Juvenile Justice Act, 1986 was published in Gazette on 2-12-1986 and Section 1 (3) thereof provided that it shall come into force on such date as the Central Government may, by Notification in the official Gazette appoint and different dates may be appointed for different provisions of the Act for different state. It is, therefore, obvious that the Juvenile Justice Act has come into force many years after the conclusion of the trial of the appellant. It is, therefore, obvious that the Juvenile Justice Act has come into force many years after the conclusion of the trial of the appellant. It, is, therefore, not possible to give benefit of the aforesaid Act to the appellant. Sri Rathor, learned counsel for the appellant has submitted that in view of the law laid down in Raton Lal v. State of Punjab, AIR 1965 SC 444 , the appellant should be given the benefit of Junvenile Justice Act though the said Act has been enacted by the Parliament during the pendency of his appeal in the High Court. We are of the opinion that the case cited by the learned counsel is distinguishable and has no application to the facts of the present case. In the case of Ratan Lal (Supra) the provisions of Proba tion of Offenders Act became applicable to the district to which the case related during the pendency of the appeal and the question for consideration was as to whether the benefit thereof could be given to the accused who had been convicted under Sees. 451 and 354, IPC and had been sentenced to three months R. I. The Supreme Court held that the benefit of said Act could be given to the accused though it came into force during the pendency of the appeal and remanded the case to the learned Sessions Judge for satisfying himself of the conditions laid down in Section 6 of the Act. In the present case, the learned counsel is challenging the holding of the trial of the appellant by the learned Sessions Judge and has submitted that the appellant should have been tried in accordance with the procedure prescribed in Juvenile Justice ct. Since the Act has been enacted nearly eight years after the conclusion of the trial of the appellant, it is not possible to hold that his trial is illegal nor it is possible to give him the benefit of the aforesaid act. 21. There is another aspect of the matter. No such plea that the appellant was under sixteen years age was raised during trial or any such submission was made. There is no material or evidence on record to show that the appellant was less than 16 years of age at the time of the commission of the crime. 21. There is another aspect of the matter. No such plea that the appellant was under sixteen years age was raised during trial or any such submission was made. There is no material or evidence on record to show that the appellant was less than 16 years of age at the time of the commission of the crime. The whole argument is based only upon the fact that when the statement of the accused was recorded under Section 313, Cr. P. C. on 7-3-1979, he gave his age as eighteen years. This is not a proof of the fact that he was actually 18 years of age at the time when his statement was recorded by the Court. The statement of the accused was recorded one year and three months after the commission of the crime which would mean that he was aged sixteen years and nine months when the incident took place. However, as already observed there is no evidence at all on the record to show that the age of the appellant was less than sixteen years when he committed the crime in question merit. Even if his statement is taken to be correct he would be about thirty-one years of age today. The submission of the learned counsel has therefore no meried. 22. In view of the discussions made above, the appeal fails and is hereby dismissed. The appellant had been granted bail by this court on 27-8-1979. He has been taken into custody of 25-7-1992. He shall serve out the sentence awarded to him by the learned Sessions Judge. Appeal dismissed. .