JUDGMENT 1. - These two appeals arise from Sessions Case No. 23/93 on the file of Additional Sessions Judge No. 2, Baran. D.B. Criminal Appeal No. 99/94 is by the accused Madhu Kant who was convicted under section 302 Indian Penal Code and Section 3 read with Section 27 of the Arms Act; while D.B. Criminal Appeal No. 69/94 is by the State challenging the order of acquittal of co-accused Krishna Gopal and Smt. Sosar Bai vide impugned Judgment dated, February 11, 1994. 2. The case relates to a dual murder of Jagmohan Nagar, aged 34 years and his wife Smt. Gomti, aged 26 years. Briefly stated, the prosecution case is that at the relevant time, deceased Jagmohan Nagar was tenant of Shiv Narain Nagar and occupying a portion of his house on the first floor. The house was jointly owned by Krishan Gopal accused and Shiv Narain Nagar who are real brothers and the house is divided between them. Accused Krishan Gopal, his wife Smt. Sosar Bai and his son Madhu Kant also resided in a portion of the house belonging to them. It is alleged that in the night intervening 22/23rd December, 1992 all the three accused, namely; the appellant Madhu Kant, his father Krishna Gopal and mother Sosar Bai came on the first floor of the house and started abusing to the deceased Jagmohan and his wife. The, Smt. Sosar Bai brought a gun and cartridges fro her house and handed over the same to the appellant Madhu Kant, who in turn, made fires on being exhorted by his father Krishna Gopal. Jagmohan's wife Smt. Gomti sustained injuries from the gunfire when she came infront of her husband to save him. She fell down on the ground. Jagmohan tried to escape, but he, too sustained gun-shot injury from the fire made on him by the appellant Madhu Kant. 3. Jagmohan's wife Smt. Gomti sustained injuries from the gunfire when she came infront of her husband to save him. She fell down on the ground. Jagmohan tried to escape, but he, too sustained gun-shot injury from the fire made on him by the appellant Madhu Kant. 3. At 11.30 P.M. in the same night, C.I.-Ram Singh, who was Station House Officer (for short S.H.O.) of the Police Station, Kotwali, Baran, received an anonymous telephonic message about making of gun fires in the house of Shri Shiv Narain Nagar the ex-M.L.A. The said information was recorded in "Rojnamcha-Aam" of the Police station and thereafter, S. H.O.-Ram Singh, alongwith S.I.-Gopal Singh, A.S.I.-Raghuraj Singh and other Police Constables came to the site of occurrence and found Jagmohan Nagar and his wife Smt. Gomti Bai in a pool of blood. Smt. Gomti had breathed her last, while Jagmohan was alive. He was immediately shifted to Government Hospital, Bran with A.S.I.- Raghuraj Singh. His condition being precarious, the Police took steps for recording his dying declaration by a judicial Magistrate. At 1.20 a.m. in the same night, two statements of Jag Mohan were recorded. The first statement as 'Parcha Bayan' (Ex. P.10) was recorded by the A.S.I.-Raghuraj Singh and it was treated as First Information Report (F.I.R.). Crime No. 394/92, under Sections 302 and 307/34 Indian Penal Code, was registered at the Police Station and a formal F.I.R. (Ex. P. 21) was chalked out. The second statement (Ex. P. 23) was recorded by P.W. 14. Prabhu Lai Ameta, Munsif and judicial Magistrate, Baran, as dying declaration. Both the statements were recorded in presence of duty doctor-Rajmal Chittora. Before recording the dying declaration by the M,msif and Judicial Magistrate. Dr. Rajmal Chittora certified the deponent to be in a fit condition to make a statement. The said dying declaration reads as under:-(English transalation) "Name-Jag Mohan Nagar son of Ratan Lalji Ans.-34 years, by caste Dhakar, Advocate by profession. Resident of Baran. Q.1. What is the time and date of the incident ? Ans. It was approximately 8.30 or 9.30 in the night. Q.2. Where the incident had taken place? Ans. At my house. Q.3. How did you get this condition ? Ans. Madhu Nagar caused gun shot injury to me. His mother brought cartridges and the gun and his father Krishna Gopal Nagar exhorted him to make gun fires and he also hurled abuses. Q.2. Where the incident had taken place? Ans. At my house. Q.3. How did you get this condition ? Ans. Madhu Nagar caused gun shot injury to me. His mother brought cartridges and the gun and his father Krishna Gopal Nagar exhorted him to make gun fires and he also hurled abuses. Madhu made gun fires. My wife came in front of me and sustained gunshot injuries. She fell down. When I tried to escape, I was also struck by a gun fire. Q.4. Who else were present at the time of incident ? Ans. Raghu Nandan Nagar & my wife, who has died and none else. Q.5. What was done and spoken at the time of incident ? Ans. Madhu made gun fires. His mother brought the gun and cartridges and his father exhorted to kill after hurling abuses. Q.6. Why it was done so? Ans. I had closed the gate of the house. He came from another gate and asked me as to why I had closed the gate. For this, he made gun fires. Q.7. Who else came on the spot after the incident ? Ans. Police came at the place of incident. Q.8. Have you to say anything else ? Ans. No God forgive me." 4. Jagmohan Nagar was admitted in the Hospital at Baran with gun-shot injuries. P.W. 12-Dr. Umesh Prasad Sharma, Medical Jurist, Government Hospital, Baran, examined his injuries at 1 a.m. in the night vide injury report Ex. P. 19. He found two gun-shot wounds i.e. one entry wound and an exit wound with following descriptions as made in the report : "Entry wound-Oval in shape, below nipple on right side of chest, 11/4 cm. x 1 an. on sixth intercoastal space, front of Rt. chest with bleeding. No scroching or burning of skin, tattooring can not be seen due to severe bleeding. Margins are dear cut and inverted. Exit wound -11/2 an. x 11/4 an. situated on posterior aspect of left side of chest (on lower part of chest) at about 11th intercostal space. Margins are everted and rough. Pt. conscious and restless. Injuries are grievous and dangerous to life. 5. At 5 a.m. on the following morning site-plan (Ex. P.1) of the place of occurrence was prepared by the Investigation Officer (for short the 1.0.). Inquest report (Ex. Margins are everted and rough. Pt. conscious and restless. Injuries are grievous and dangerous to life. 5. At 5 a.m. on the following morning site-plan (Ex. P.1) of the place of occurrence was prepared by the Investigation Officer (for short the 1.0.). Inquest report (Ex. P.2) of dead body of Smt. Gomti was prepared at 5.20 a.m. and then, it was handed over for post-mortem examination, which was conducted at 9.30 a.m. on the same day by the Medical Jurist, P.W.12-Dr. Umesh Prasad Sharma vide post-mortem examination report-Ex.P.18. The Doctor found following injuries on the body of the deceased as described in the post-mortem report: "(A) Left arm-10 wounds (gun-shot) circular 1/2 cm. to 1 cm. in size 5 holes on anterio-lateral aspect of arm and 5 holes on posterio-lateral aspect of mid part of left arm. Entry wounds are on anterio-lateral aspect of arm and exit wounds are on posterio-medial aspect of arm. Entry Wounds : Skin is not burnt or scorches. No marks of tattooing. They are present in 5" dia-meter. Exit Wounds : No marks of burns or scorching of skin-Circular to oval 1/2 cms. to 11/4cms. in size. Present in a diameter of about 5". Arm is broken at middle. One pellet is found in one of the exit wound. It is sealed: Same number of holes are present in the blouse of left arm. (B) 5 holes (gun-shot wounds) are present on left side of chest-left on nipple, above and below the nipple on front chest. Wounds are 1/2 to 1 cms. in dia-meter in an area of about 5". No tattooing, burning or scorching. Five holes are present on the blouse front side and on the brassiers left side. (C) Two wounds are present on back at loin area just left of mid-line-size 3/4 cm. Left lung:-There are tears. Full of blood and shows 3 holes in it. Pericardium-Heart shows 2 holes. The chest cavity is full of blood. Stomach and its contents:-One tear (hole) is present at posterior wall. Lever:-Tear present on left lobe upper surface. In the opinion of Doctor, cause of death was due to the gun-shot injuries, injuring heart, lung, broken left arm leading to sudden haemorrhage, shock and death. 6. The I.O., seized one 12-bore gun (in broken condition) from the place of occurrence vide seizure-Memo-Ex.P.3. Five empty cartridges of 12-bore gun. Lever:-Tear present on left lobe upper surface. In the opinion of Doctor, cause of death was due to the gun-shot injuries, injuring heart, lung, broken left arm leading to sudden haemorrhage, shock and death. 6. The I.O., seized one 12-bore gun (in broken condition) from the place of occurrence vide seizure-Memo-Ex.P.3. Five empty cartridges of 12-bore gun. lead pellets, three lead shots and two lead slugs (balls) were also seized from the place of occurrence vide Memo-Ex.P.4. Blood smeared clothes of Smt. Gomti were seized vide Memo-Ex.P.11 at 8 a.m. on 23.12.92. The 1.0. also seized blood of the deceased Gomti and injured Jagmohan from the place of occurrence in morning of 23.12.92 vide Memos Ex. P. 24 and P. 25. All the three accused were arrested on 23.12.92 and on information (Ex.P.33) a 12-bore gun was recovered from possession of the appellant Madhu Kant vide Memo-Ex. P.6. 7. Statement of the deceased Jagmohan under Section 161. Criminal Procedure Code was recorded on 13.1.93 when he was alive. On his death on 31.1.93 autopsy on his dead body was conducted by a Medical Board consisting of Dr. Y. K Sharma (P.W.11), Dr. B.K. Trivedi and Dr. B.S.Bisnar vide post-mortem report Ex. P.17. In the opinion of the Doctors, the cause of Jagmohan's death was toxaemia. 8. After completion of usual investigation, a charge-sheet was laid against all the three accused in the court of Chief Judicial Magistrate, Baran, who in turn, committed the case to the Court of Sessions Judge, Baran, from where it was made over to the court of Additional District and Sessions Judge No. 2. Baran for trial. At the trial appellant-Madhukant was charged under section 302 Indian Penal Code for committing murder of Jag Mohan Nagar and his wife Smt. Gomti Bai. He was also charged under section 3 read with Section 27 of the Arms Act. The co-accused Krishna Gopal and Smt. Sosar Bai were charged under section 302 with the aid of Section 108 and 114 Indian Penal Code for aiding and instigating commission of the offence. 9. At the trial, prosecution examined 22 witnesses to bring home guilt of the accused persons. The plea of the accused was of total denial and no witness was examined in defence. 9. At the trial, prosecution examined 22 witnesses to bring home guilt of the accused persons. The plea of the accused was of total denial and no witness was examined in defence. The prosecution evidence, mainly consisted of - (i) Three statement of the deceased Jag Mohan, namely, his statement (Pracha-Bayan-Ex.P.20) to A.S.I.-Raghuraj Singh just after the incident at 1.20 a.m. in the same night which was treated as P.I.R., his statement (Ex.P.23) to the Munsif and Judicial Magistrate, Baran in the night of the incident. which was recorded as his dying declaration and his statement (Ex.P.26) under section 161 Cr. P.C. recorded by the I.O. on 13.1.93. It is not disputed that all these statements are dying declarations after Shri Jag Mohan having died. (ii) The deposition of P.W.2.-Radhu Nandan who claims to be an eye-witness of the incident and deposition of P.W.4-Kumari Santosh Nagar, who was sleeping in the house and got awakened on the sound of gun-fires and came at the spot after the incident. (iii) The medical evidence and the evidence of recovery of various articles as corroborative evidence. 10. Placing reliance on the prosecution evidence, learned trial Judge convicted the appellant Madhu Kant under Sections 302 Indian Penal Code and 3/27 of the Arms Act. Under section 302 Indian Penal Code, he was sentenced to suffer imprisonment for life and to pay a fine of Rs. 200/-. In default of payment of fine, to undergo rigorous imporisonment for one month. Under section 3 /27 of the Arms Act, he was sentenced to 3 years rigorous imprisonment and to pay fine of Rs. 100/-. In default of payment of fine to undergo 15 days rigorous imprisonment. The substantive sentences were ordered to run concurrently. The remaining two accused, namely, Krishna Gopal and Smt. Sosar Bai were acquitted of the charges levelled against them. 11. Before we advert to the various criticism made by Mr. S.R. Bajwa, the learned counsel for the accused, while assailing the statements/dying declarations made by the deceassed Jagmohan, we would like to state that the law on dying declarations is well settled by now. 11. Before we advert to the various criticism made by Mr. S.R. Bajwa, the learned counsel for the accused, while assailing the statements/dying declarations made by the deceassed Jagmohan, we would like to state that the law on dying declarations is well settled by now. The general rule of the Evidence Act is to exclude 'hear-say' evidence, but Section 32 of the Act embodies certain exceptions to the 'Hear-say Rule' and one of them is a statement made by the deceased as to the cause of his death or to any circumstances of the transaction, which resulted n this death. In cases in which the cause of his death comes into question. It is because great solemnity and sensitivity is attached to the words of a dying man, as a person on the verge of his death is not likely to tell a lie or concoct a case so as to implicate an innocent person. Such statements, not being on oath to testify their veracity by cross-examination, the courts have to apply the strictest scrutiny and closest circumspection to the statements before acting upon them. The Court, therefore, has to be on guard against the statement of the deceased being as a result of tutoring, prompting or a product or his own imagination. The Court must also be satisfied that the deceased was in a fit state of mind to make the statement and had a clear opportunity to observe and identify his assailants, that he was making the statement without any influence or rancor. It goes without saying that the circumstances in which a dying declaration is made and the nature of its contents are very strong grounds in determining the weight to be attached to a dying declaration. A dying declaration made soon after the incident or at a time when the deceased expected death or at a time by which the deceased could not have consulted others or received hints from others will ordinarily be deserving great weight. Similarly, if contents of the dying declaration indicate that what is alleged is probably true and that no apparent attempt has been made to exaggerate the incident or to rope in large number of persons, it will ordinarily be considered to be a dying declaration worth reliance. Similarly, if contents of the dying declaration indicate that what is alleged is probably true and that no apparent attempt has been made to exaggerate the incident or to rope in large number of persons, it will ordinarily be considered to be a dying declaration worth reliance. These are few illustrations to be stated as it is difficult to make an exhaustive description of the facts which would justify to have reliance on a dying declaration. Then, the credit of a deceased declarant may he impeached or confirmed in the same manner as that of any other witness on cross-examination. After applying the various tests to scrutinise and weigh the evidence led to prove such statement as a dying declaration if the same is found to be reliable, voluntary and free from all suspicions, conviction on such declaration alone is perfectly legal without any corroboration. See Mannu Roja V. State of U.P., AIR 1976 Supreme Court 2199 : (1976) 2 SCR 764 ; State of U.P. V. Ram Sagar Yadav, AIR 1985 Supreme Court 416 ; Ramvati Devi V. State of Bihar, AIR 1983 Supreme Court 164 ; Smt. Peniben V. State of Gujarat, AIR 1992 Supreme Court 1817 and K. Ramchandra Reddy and another V. Public Prosecutors, AIR 1976 Supreme Court 1994 . 12. In back ground of the above principles and guidelines pertinent to dying declarations, we now proceed to consider the various contentions urged by Shri Bajwa, assailing the three dying declarations made by the deceased. The first contention in this respect is that the prosecution has not led satisfactory evidence to prove that the death of Jagmohan was as a result of gun-shot injuries sustained by him at the time of incident. According to Shri Bajwa, death of Shri Jagmohan Nagar was not the direct result of the injuries sustained by him and it could have been caused by the negligence of medical staff. In support of his contention, Shri Bajwa relied on the statement made by P.W.11-Dr. Y.K. Sharma, who has stated the cause of Jagmohan's death to be toxemia which could be as a result of septic. 13. There is no dispute on this legal position, as contended by Shri Bajwa. In support of his contention, Shri Bajwa relied on the statement made by P.W.11-Dr. Y.K. Sharma, who has stated the cause of Jagmohan's death to be toxemia which could be as a result of septic. 13. There is no dispute on this legal position, as contended by Shri Bajwa. Clause-(1) of Section 32 of the Evidence Act makes a statement of a person, who has died, relevant only when his statement relates to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of that person's death comes into question. If it is not proved that the declarant had died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the Transaction which resulted in his death. This legal aspect is obvious and is not disputed even by the learned Public Prosecutor.However, the contention of the learned Public Prosecutor is that there was reliable and sufficient medical evidence n the record to prove that declarant Jagmohan had died as a result of the injuries received by him in the incident. In support of this contention, he referred to some portions of the statements of Dr. Umesh Prasad Sharma (P.W.12) and Dr. H.K. Singh (P.W.19). 14. P.W.12-Dr. Umesh Prasad Sharma has stated that on the request of Police, he examined injuries of Jagmohan who was admitted in the hospital as indoor patient in Male-Surgical-Ward on bed No. 46. The Doctor then, described in detail the gun-shot injuries sustained by Jagmohan and also proved injury-report Ex.P.18 prepared by him. This part of his statement relating to the injuries sustained by Jagmohan was not challenged in cross-examination. From its statement it stands proved beyond doubt that Jagmohan had sustained gun-shot injuries in the incident as described in the injury report, Ex. P.18 which have been extensively extracted in earlier part of the judgment. 15. P.W.19-Dr. H.K. Singh was Senior specialist of Surgery in M.B.S. Hospital, Kota at the relevant time. He had attended Jagmohan when he was admitted in Surgical Ward of the Hospital on 23.12.92. Dr. Singh has deposed that the patient was having fire arm injuries and he was referred from the Government Hospital, Baran. 15. P.W.19-Dr. H.K. Singh was Senior specialist of Surgery in M.B.S. Hospital, Kota at the relevant time. He had attended Jagmohan when he was admitted in Surgical Ward of the Hospital on 23.12.92. Dr. Singh has deposed that the patient was having fire arm injuries and he was referred from the Government Hospital, Baran. He had an entry wound on his right lower chest and an exit would on his right lumber region. His general condition was poor. Blood pressure was 100/70 and abdomen was swollen all over and tender. His abdomen and chest were X-rayed. Sonography was also done and injuries were noticed on his liver, kidney and intestines. He was operated after making arrangement of four units of blood. On opening abdomen, it was found that it was full of blood, urine and faecal matter. On cleaning the same, it was also noticed that injury to the liver was through and through, colon, omentum, transceiver colon and lower pole of right kidney were visualised. There was a big tear on posterior wall of the abdomen. The kidney was profusely bleeding, so first kidney was repaired and right half of the kidney was removed. A piece of omentum which was badly damaged was also removed. Transverse colon anastomosis was done. On two sides complete haemostasis was done. At the time of operation, blood pressure was maintained. Four units of blood transfused, melicoat catheter was put in dean peritoneal space and another catheter in hypo-chondric area. Abdomen was closed in layers. After operation, treatment was given-blood transfusion, antibiotics and fluids.He further stated that there was blood stained discharge and non-union of anastomosis, as such, abdomen was re-opened from the same side on 3.1.93. Peritoneal cavity was found full of blood. Anastamased stump was bleeding. Hence, wound of colon was stitched and closed. Distant anastomosis was done and small intestine was anastomosed to large intestine. A drain was put in the peritoneal cavity to drain the blood or any discharge. The abdomen was closed by applying tension sutures. At the time of operation, blood pressure was low. Three units of blood were again transfused. Again there was non-union of stitched site. As injury causes swelling and there was accumulation of faecal matter and urine, it caused accumulation of toxins. The abdomen was closed by applying tension sutures. At the time of operation, blood pressure was low. Three units of blood were again transfused. Again there was non-union of stitched site. As injury causes swelling and there was accumulation of faecal matter and urine, it caused accumulation of toxins. On 7th day of operation, there was faecal discharge from stitched line because of formation of faecal fistula and because of this, patient's condition deteriorated (patient became weak). Blood transfusion was done on alternative days. The accumulation of faecal matter was because of injury to abdomen. If faecal matter and urine remain collected in abdomen for about 6 hours of injury. toxemia sets in. The injured had injuries on his vital parts of the body. He survived for such duration only due to medical aid. Otherwise, the injuries were sufficient to cause death in the ordinary course of nature. A photo-stat copy of operation-notes (Ex. P. 27-A) is on the record. In cross-examination, the Doctor further stated that on 10.1.93 he realised that toxemia had set in and this was because of accumulation of urine and faecal matter in abdominal cavity. He then, stated that there was no possibility of survival of the patient even he had been shifted to a better hospital. 15. From the evidence of Dr. H.K. Singh it is evident that toxemia was because of the injuries and on account of accumulation of urine and faecal matter. In other words, the injuries were respondible for toxemia which resulted in the death of Jagmohan Nagar. His statement is firm and specific that accumulation of faecal matter and urine was due to the injuries sustained by the victim, thus resulting in bacterial toxemia. The evidence of Dr. Y.K. Sharma, P.W. 11 does not help to the accused as he merely stated that cause of the death of Jagmohan was toxemia, and he was unable to tell the cause of toxemia in the present case. In view of this, the contention of Mr. Bajwa deserves to be rejected that the death of Jagmohan Nagar was not as a result of the injuries sustained by him in the incident. 16. In view of this, the contention of Mr. Bajwa deserves to be rejected that the death of Jagmohan Nagar was not as a result of the injuries sustained by him in the incident. 16. We are also unable to subscribe to the contention of Shri Bajwa that in absence of ascertainment by use of probe it was not possible to give a categorical opinion that wounds sustained by Jagmohan were from a gun-shot or the entry and exit wounds were communicating injuries. The evidence of P.W.12-Dr. Umesh Prasad Sharma and P.W.19-Dr. H.K. Singh in this connection is quite clear and firm that the wounds sustained by Shri Jagmohan were the result of a gun-shot fire. Dr. H.K. Singh had operated the victim twice after opening his adbomen and his opinion on the nature of the wounds is significant and cannot be brushed aside on mere hypothetical ground. In cross he has also confirmed that in the case of Jagmohan the gun-shot, after breaking 6th and 7th ribs on right chest, diverted towards lumber region. In view of clear expert medical evidence the above contention made by Shri Bajwa deserves to be rejected. 17. At this juncture, we would like to deal with an important question of law thrown-up by Shri Bajwa for our consideration which is : Whether the statements/dying declarations of the deceased Jagmohan in respect of his wife's death are admissible and relevant under the Evidence Act ?According to Mr. Bajwa that part of the statements/ declarations which relate to the death of deponent's wife should be excluded from considerations as under Section 32(1) only that statement is admissible which relates to the cause of deponent's death or to any of the circumstances of the transaction which resulted in his death. In other words, his contention is That under Section 32(1), the statement of a dead person is not relevant fact with respect to the question about the death of another person. 18. In the instant case, Jagmohan's dying declarations covered not only the manner in which the appellant fired on him but also an antecedent fact about the appellant making fire on him but his wife rushing towards him for rescue and getting gun-shot injuries which resulted in her death. 18. In the instant case, Jagmohan's dying declarations covered not only the manner in which the appellant fired on him but also an antecedent fact about the appellant making fire on him but his wife rushing towards him for rescue and getting gun-shot injuries which resulted in her death. As regard to that part of dying declaration which relates to deponent's death it would come squarely within the expression "as to cause of his death" appearing in sub-section (1) of Section 32 of the Evidence Act. The question, then, arises whether the portion of dying declaration about infliction of gun-shot injuries to Jagmohan's wife would be admissible under sub-section (1) ? Section 32 (1) of the Evidence Act reads as under:- "S. 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. Statements, writing or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable are themselves relevant facts in the following cases : (1) When it relates to cause of death when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." A perusal of the above provisions shows that it refers to two kinds of statements : (i) when the statement is made by a person as to the cause of his death : or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The expression "any of the circumstances of the transaction which resulted in his death" is apparently wider in scope than the expression "the cause of death". The expression "any of the circumstances of the transaction which resulted in his death" is apparently wider in scope than the expression "the cause of death". It is true that the circumstance or circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in death of the declarant. But if death of another person is a part and parcel of the same incident which resulted in death of the deponent, then, all the circumstances relating to the incident shall be relevant and admissible. In other words, the whole of the deponent's statement would be admissible. To exclude any part of the statement would be to exclude the statement relating to the circumstances of the transaction which resulted in his death. The circumstances of the death of another person may be so inter-linked or inter-woven with the circumstances relating to the deponent's death that exclusion of any part would amount to causing damage to or extracting the circumstances from the statement of the deponent relating to his death. In such situation exclusion of any part of the statement would not give a complete picture, rather it shall present a distorted version of the incident relating to his death. The expression 'transaction' herein indicates an act completed or performed. Therefore, all circumstances directly or indirectly having connection with the deponent's death would be relevant and admissible under Section 32(1) of the Evidence Act. Such circumstance or circumstances may also relate to the death of another person. 19. In Pakala Narayan Swami V. Emperor, AIR 1939 PC 47 ; 1939 (1) Mad. L.J. 756 the Privy Council while interpreting the words "circumstances of the transaction" has expanded its ambit thus : "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than 'res-gustae". Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than 'res-gustae". Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that "the cause of (the declarant's) death comes into question." General expressions indicating fear or suspicion whether of a particular individual of otherwise and not directly related to the occasion of the death will not be admissible. But, statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused." 20. In the State V. Ramprasad Singh and Others, AIR 1953 Patna 354 , a Division Bench of Patna High Court has observed as under : "The expression "any of the circumstances" of the transaction which resulted in his death" is, in my opinion, wider in scope than the expression "the cause of his death"; in other words, sub-section (1) of section 32 refers to two kinds of statements - (1) when the statement is made by a person as to the cause of his death, or (2) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words "resulted in his death" do not in my opinion mean "caused his death". If I am correct in my view of Section 32 (1), Evidence Act, then the statements of Jadubansilal were admissible in this case." 21. The words "resulted in his death" do not in my opinion mean "caused his death". If I am correct in my view of Section 32 (1), Evidence Act, then the statements of Jadubansilal were admissible in this case." 21. In a very early Madras case, in "re.P. Subbu Thevani", 2 Weir 750 it was held that statements made by a deceased person as to the cause of his death are admissible, not only as against the person who actually caused the deponent's death, but also against other persons concerned in the transaction which resulted in the deponent's death, in cases in which the cause of that person's death comes in question. One of the question raised in the appeal by other convicted persons was-whether the statement of the deceased man as to the participation of the appellants in the dacoity were relevant against them. The answer was given in the affirmative. In answering the question their Lordship Kernan and Brandt, J.J. said : "As to its (statement of the deceased person) not being admissible except as against the person who actually caused the deponent's death, we are of opinion this is not so in the case before us. The wording of section 32 of the Indian Evidence Act is comprehensive; "When the statement is made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question." Now here one of the questions was, whether the accused, other than Pechi Muttu Thevan, could be convicted of having been concerned in committing a dacoity in the committing of which murder was caused and we have no doubt that statements as to what was done by those concerned in the dacoity in which murder was caused was relevant against those concerned in the dacoity." 22. The above case was followed by the Rangoon High Court, in ' Nga Hla Din V. Emperor, AIR 1936 Rangoon 187 . There a husband and a wife were killed at one and the same place and time. Of the two accused persons one was the servant of the other. The husband was killed by the master and the wife by the servant. There a husband and a wife were killed at one and the same place and time. Of the two accused persons one was the servant of the other. The husband was killed by the master and the wife by the servant. The only evidence in the case was the dying declaration of the wife, who besides stating that the servant attacked her (as a result of which she died) the master killed the husband. The question arose whether the wife's statement was admissible against the master, who killed the husband. Accepting the dying declaration against both the accused persons, the trial Court had convicted each of them for the murder and sentenced both of them to death. The contention as to the admissibility of the statement against the master was negatived by the High Court and the convictions for the murders and the death sentences were confirmed. The learned Judges held that statements by a deceased person as to the cause of his death are admissible not only as against the person who caused the death of the deponent, but also against other person concerned in the transaction which resulted in the deponent's death, in cases in which the cause of that person's death comes into question. 23. A similar question arose before the Travencore Cochin High Court in Lukka Ulahannan V. Travencore-Cochin State, AIR 1955 Tranvancore Cochin 104 . The Court relied on the decisions of the above referred Madras and Rangoon cases and held : "Section 32 (1) Evidence Act, provides : When the cause of a person's death comes into question statements made by that person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death are relevant. In our opinion, to exclude from the evidence statements made by a deceased person as to incidents which, occurred during the course of the transaction which resulted in his death, statements other than those relating to the cause of his death would be to import a limitation to the words used in the section which their natural meaning does not warrant. When a limitation like that is intended, the Legislature provides for it. The language of Section 27, Evidence Act, may, for instance, be compared. When a limitation like that is intended, the Legislature provides for it. The language of Section 27, Evidence Act, may, for instance, be compared. It is difficult to say that the statements as to the stabbing of Pathrose by accused or of P.W. 2 by accused-2, are not statements made as to any of the circumsatnaces of the transaction which resulted in Mundan's death. P.W.2 was stabbed when he interceded to render assistance to Pathrose and Mundan who had fallen down as the result of injuries inflicted upon them by accused 1. Accused 2 stood charged with abetment of the acts of accused 1 and vice versa." 24. In Kashinath Tukaram Jadhav V. State of Maharashtra, 1984 Cr. L.J. 1447 , before Division bench of Bombay High Court, the relevant ' part of the dying declaration of the deceased Tatya was thus : "On Sunday, the 30th July, 1978, at about 1.00 p.m. myself and Shri Khanna were standing near the flour mill, in Tagore Nagar Group No. 7. One Kashya Jadhav came there and called us. He asked whether we were searching him for assaulting. Immediately thereafter, he took out one open knife and stabbed Khanna on his chest twice. Where I tried to save Khanna, Kashya stabbed me on my chest." The question arose for consideration, whether the dying declaration of the deceased, disclosing the manner in which the accused stabbed Khanna also fell within the meaning of the phrase "any of the circumstances of the transaction" contained in sub-section (1) of Section 32 of the Evidence Act. After considering the decisions of various High Courts it was held as under:-(Para 28 of the Judgment) - "A reading of the declaration shows that it would become unintelligible and present a distorted picture if the narration regarding stabbing of khanna is excluded there form. Why did Kashya stab Tatya? It is because Tatya ran to the rescue of Khanna who was being stabbed by Kashya. By excluding the narration regarding Khanna, the declaration may give an impression that Kashya came to the spot and straightway lunged towards Tatya and stabbed him-which is not what the declarant states. Right from the moment Kashya arrived at the crossing of the roads where Nana and Khanna were standing till the stabbing of Nana formed an unbroken chain of events constituting one transaction. Right from the moment Kashya arrived at the crossing of the roads where Nana and Khanna were standing till the stabbing of Nana formed an unbroken chain of events constituting one transaction. Hence, the narration of Nana regarding the manner in which Kashya stabbed Khanna would also fall within the meaning of the phrase "any of the circumstances of the transaction" contained in sub-section (1) of Section 32 of the Evidence Act. An errant bus-driver ploughing his bus into a crowd of waiting commuters; a rogue pachyderm running amock from captivity trampling the onlookers; a racist spraying bullets on the foci of his hatred will not the last of the survivors of the rampage be able to describe how others met their deaths before the avalanche hit him?" 25. We are in full agreement withe the view expressed by the Division Bench of Bombay High Court on the legal question. We also agree that the question whether the statement of one dying declaration an be relevant fact with respect to the death of another will depend upon : "(a) Whether it was made in the continuation of a narration describing the final occurrence concerning the declarant; and (b) Whether it is directly concerned with an event which took place in the presence, sight or hearing of the declarant; (c) Whether that event has some proximate relation to the actual final occurrence; and (d) Whether the declaration would become unintelligible or distorted if the narration of that event is blotted out from the declaration." At this juncture, we would also like to refer to the decisions in Kunwarpal Singh and another V. Emperor, AIR 1948 Allahabad 170: 1949 Cr. L.J. 140 and Surjit Singh Sher Singh V. The State, 1969 Cr. L.J. 98 , in which the respective Division Benches of Allahabad High Court and Punjab and Haryana High Court have taken a contrary view. With due respect to the learned Judges we are unable to subscribe to the view taken by them and we prefer to follow the view expressed by the Travencore Cochin and Bombay High Courts. 26. Learned Counsel also strongly relied upon two decisions of the Supreme Court in Ratan Gond V. State of Bihar, AIR 1959 Supreme Court 18 and Moti Singh and Another V. State of U.P., AIR 1964 Supreme Court 900 . In Ratan Gond's case (supra), the facts were that- "One Mst. 26. Learned Counsel also strongly relied upon two decisions of the Supreme Court in Ratan Gond V. State of Bihar, AIR 1959 Supreme Court 18 and Moti Singh and Another V. State of U.P., AIR 1964 Supreme Court 900 . In Ratan Gond's case (supra), the facts were that- "One Mst. Jatri, (mother) had two daughtes, namely, Kumari Baisakhi aged 9 years and Kumari Aghni aged 5 years. The subject matter in the appeal related to the murder of girl Baisaki. The mother had gone to pluck berries in a hilly jungle leaving her two daughters in the house. When she came back at about noon, she found Aghni alone in the house. She enquired from Aghni about the elder sister Baisaki and Aghni made certain statements to her as well as to other persons later the day and the next day. Aghni, however, died within few months of the occurrence before her statement could be recorded in a judicial proceeding. One of the points urged on behalf of the accused was that the statements of Aghni was not admissbile in evidence either under section 32 or under Section 33 of the Act. In that context the Supreme Court observed that her statements were not admissbile in evidence either under Section 32 or Section 33 of the Evidence Act. "This brings us to a consideration of the submissions made on behalf of the appellant. We may say at the very outset that we agree with learned counsel for the appellant that the statements of Aghni, who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding, were not admissible in evidence either under Section 32 or Section 33 of the Evidence Act. Section-33 is clearly out of the way because Aghni made no statement in a judicial proceeding or before any person authorised by law to take her evidence. The only relevant clause of Section 32 which may be said to have any bearing is Clause (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. The only relevant clause of Section 32 which may be said to have any bearing is Clause (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghni do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. We are, therefore, of the opinion that the statements do not come within section 32 (1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of the State, has conceded that Section 32 (1) does not apply to the statements of Aghni.". 27. In Moti Singh's case (supra) the deceased had two gun-shot wounds which were opined by the Doctor to be dangerous to life. He died about three weeks after the incident. No post-mortem of the dead body was conducted and in the absence of the proof that he had died as a result of the injuries received in an incident. It was held that his statement cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. Hence, his statement was excluded from consideration. 28. The above two decisions of the Supreme Court are apparently distinguishable. In the instant case, the relevant part of the dying declaration of the deceased Jagmohan made to the Judicial Magistrate reads as under : "Madhu Nagar caused gun-shot injury to me. His mother brought cartridges and the gun and his father Krishna Gopal Nagar exhorted him to make the fire and hurled abuses. Madhu made gun fires. My wife came in front of me and sustanined gun-shot injury. She fell down. When I tried to escape. I was also struck by a gun fire." A reading of the above declaration shows that narration with regard to the infliction of injury to the deponent's wife is a part and parcel of the circumstances of the transaction which resulted in the death of Jagmohan. She fell down. When I tried to escape. I was also struck by a gun fire." A reading of the above declaration shows that narration with regard to the infliction of injury to the deponent's wife is a part and parcel of the circumstances of the transaction which resulted in the death of Jagmohan. That part is so inter-woven and inter-linked that if narration regarding infliction of gun-shot injury to his wife is excluded, the incident would not give a complete picture rather it would present a distorted version. We are of the opinion that narration about the death of deponent's wife is an unbroken chain of the events constituting one transaction and it would fall within the phrase "any of the circumstances of the transaction." The whole of the statement therefore, would be admissible, the legal question is answered accordingly and it is held that dying declaration of Jagmohan in relation to his wife's death from the injuries by gun-shot made by the appellant is admissible in evidence. 29. The next equally serious question is whether the statements made by the deceased Jagmohan are voluntary and true disclosure of account of the incident. For this we minutely examined the evidence led by prosecution. His first statement is Ex. P. 20 which is a 'Parcha-Bayan' made to Shri Raghuraj Singh -A.S.I. Raghuraj Singh was examined in the trial Court as P.W. 13 and he has proved the said statement and the fact of recording it at 1.20 a.m. in the same night in presence of Dr. Chittora. He also stated that crime No. 392/92 was registered at the Police Station on the basis of that Statement. In cross-examination, he stated to have gone to the place of incident alongwith Circle Inspector at 11.30 in night on getting vague information about the occurrence from an unidentified person and from there, on the directions of S.H.O. went to the Government Hospital, Baran with injured Jagmohan and recorded his, 'Parcha-Bayan'. The evidence of Raghuraj Singh has not been shattered at all in cross-examination and there is nothing on record even to suggest that he was having any animosity or malice against the appellant to falsely implicate him by fabricating a false statement of Jagmohan Nagar. His evidence cannot be suspected or discarded simply on the ground of his being a Police Officer. His evidence cannot be suspected or discarded simply on the ground of his being a Police Officer. There is also no material on record or even any suggestion by the accused that some body had prompted the deponent, who himself was a lawyer, to make the statement Ex. P. 20. 30. Another statement of the deceased Jagmohan is the dying declaration, recorded by Shri Prabhu Lal Ameta, Munsif and Judicial Magistrate, Baran. The whole of his dying declaration has been extracted in earlier part of the judgment, which is in question and answer form. The dying declaration was recorded after obtaining certificate of fitness of the deponent from duty Doctor Shri Rajmal Chittora. The Magistrate, Shri Prabhu Lal Ameta, has been examined as P.W. 14 and Dr. Rajmal Chittora as P.W. 18. They have proved the dying declaration, Ex. P. 23, made by the deceased Jagmohan. His thumb impressions were taken on the dying declaration as he was not in a position to put his signatures. It also contains signature of the Magistrate at portion A to B and of Dr. Chittora at portion E to F. The certificate of fitness is narrated at portion C to D. From the testimony of judicial Magistrate Shri Ameta and Doctor Chittora, we are satisfied that dying declaration Ex. P. 23 was made by the deceased Jagmohan and he was in a fit condition to make the statement. The statement was properly recorded after taking all precautions. Learned counsel for the accused also could not point out any infirmity in recording the statement so as to discredit the same. His criticism to the above two dying declarations is two-fold. The first criticism is that those statements are in brief and do not contain a full account of the incident as given by the deponent in his subsequent statement (Ex. P. 26) to the Police on 13.1.93 under section 161 Cr. P.C. The second criticism relates to the difference of time of the occurrence in the statement made on 13.1.93. We examined the above criticisms carefully, and on our deep probe, we are unable to discredit or suspect the two statements Ex. P. 20 and Ex. P. 23 made by the deceased. Those statements were recorded immediately after the incident when the declarant Jagmohan, was having severe pain on account of the injuries sustained by him. We examined the above criticisms carefully, and on our deep probe, we are unable to discredit or suspect the two statements Ex. P. 20 and Ex. P. 23 made by the deceased. Those statements were recorded immediately after the incident when the declarant Jagmohan, was having severe pain on account of the injuries sustained by him. What was necessary at that time was to know as to how he had sustained the injuries. In the circumstances and looking to the serious condition of the declarant, we are of the opinion that merely because the earlier dying declarations did not contain a detailed account of the occurrence, they cannot be suspected or discredited. On the other hand, his short statement containing the name of the person who caused the injuries lends guarantee of their being truthful. 31. It is true that there is some difference about the time of occurrence in the last statement of the deceased made to the Police on 13.1.93. In our opinion, this difference of time was due to bona fide mistake. The incident had taken place in the night of 23rd December. Winter nights in the month of December are longer and difference in exact time may be bonafide if the same is not given after consulting a watch. In any way, once we are satisfied that the dying declarations Ex. P. 20 and Ex. P. 23 were voluntarily made by Jagmohan deceased we do not attach much significance for slight difference about the time of occurrence in the two statements. 32. The third statement of the deceased Jagmohan was made on 13.1.93 by way of his statement to the police under section 161 Cr. P.C. It contains a detailed and graphic account of whole of the incident. The declarant was in a condition to give a detailed statement on 13.1.93. It is also true that it contains some facts relating to the incident which are not stated i n the earlier statements Ex. P. 20 and Ex. P. 23, which were recorded immediately after the incident while the statement Ex. P. 26 was recorded on 13.1.93. We are of opinion, that in facts and circumstances that neither the statement Ex.P.26, recorded on 13.1.93, can be suspected or rejected for containing detailed account of the incident nor the statements Ex. P. 20 and Ex. P. 23 can be suspected and discarded being in brief. P. 26 was recorded on 13.1.93. We are of opinion, that in facts and circumstances that neither the statement Ex.P.26, recorded on 13.1.93, can be suspected or rejected for containing detailed account of the incident nor the statements Ex. P. 20 and Ex. P. 23 can be suspected and discarded being in brief. The trial Judge in our view, committed no error in placing reliance on all the three statements made by the deceased Jagmohan before his death. 33. Another important piece of evidence led by prosecution and relied by the trial court is the statement of the eye-witness, P.W.2, Raghu Nandan Nagar. This witness was residing in a portion of the house as a tenant at the time of incident. According to this witness, at about 11 in night, he was sleeping in his room and got awakened by the noise of hurling abuses between the accused persons and deceased. He, then, gave a graphic picture of the entire incident including making of gun fires by the appellant, Madhukant. According to him, Smt. Gautmi sustained injuries from gun fires prior to Jag Mohan. That Jag Mohan, had also brought his gun and made a fire from it and immediately thereafter, he sustained a gun-shot from the fire made by the appellant. This witness has been cross-examined at length and after going through his entire cross-examination we are satisfied that his testimony has remained firm and unshattered. Learned counsel for the accused criticised his evidence on the ground that his conduct at the time of incident and after the incident was highly un-natural and abnormal. For this Mr. Bajwa contended that instead of going to the police station to make a report the witness just went to his village to inform the father of the deceased. Another criticism was that his evidence is not corroborated by medical evidence. Mr. Bajwa also contended that the I.O. did not prepare the site plan of the spot of incident at the instance of this witness and this fact shows that he was not an eye-witness of the incident. 34. We have considered the above criticisms. So far first criticism is concerned, it may be stated that the father and other family members of the deceased Jagmohan resided in a nearby village. 34. We have considered the above criticisms. So far first criticism is concerned, it may be stated that the father and other family members of the deceased Jagmohan resided in a nearby village. Immediately after the incident, the witness Raghu Nandan went to the house of Radha Kishan Nagar and intimated him about the incident and thereafter, he went to his village on a Motor Cycle to intimate his own father and Jagmohan's father. It is true that this witness did not go to the police to lodge a report, but in our view, on this ground his testimony cannot be rejected as his worry was to inform the relatives of the deceased who were residing in a village at a short distance from the town of Baran. Not only this, he went to Radha Kishan Nagar and narrated him about the incident. In a given situation where a close relative is murdered, action may differ from man to man. Then, the witness being a dose relative of the deceased would hardly try to save the real culprit. His statement was also recorded by the police the very next morning of the incident. The trial Court has believed his testimony. We are in agreement with the reasoning given by the trial Court. It appears to us that the evidence of the witness Raghu Nandan is convincing and deserves credence. 35. The next criticism about preparation of the site-plan in absence of the witness Raghunandan can be rejected on the ground that no cross-examination in this connection was made by defence counsel either to the Investigating Officer or the witness. 36. The fact that the witness Raghu Nandan was living in the same house as a tenant at the time of incident has not been disputed in his cross-examination and Mr. Bajwa also did not raise any argument on this factual aspect. If it is so, the presence of this witness at the time of incident is quite natural. Then, his testimony gets support from dying declarations made by the deceased Jagmohan and the statement of P.W.4-Kumari Santosh who came to the place of incident immediately after the occurrence was over the found the accused persons'and the witness Raghu Nandan standing there while Jag Mohan and his wife Smt. Gautmi were lying with gun-shot injuries on the floor. 37. Then, his testimony gets support from dying declarations made by the deceased Jagmohan and the statement of P.W.4-Kumari Santosh who came to the place of incident immediately after the occurrence was over the found the accused persons'and the witness Raghu Nandan standing there while Jag Mohan and his wife Smt. Gautmi were lying with gun-shot injuries on the floor. 37. Learned counsel for the appellant had also contended that Jagmohan's daughter and his father, as well as Radha Kishan Nagar were not examined by the prosecution and adverse inference be drawn against it. We are not impressed by this argument for the simple reason that none of these witnesses was an eye-witness of the incident to speak against the appellant. Radha Kishan could have corroborated the testimony of P.W.2, Raghu Nandan, but on this ground we find no reason to discard either the prosecution case or the evidence of Raghu Nandan. As already stated, the presence of Raghu Nandan at the time of incident was quite natural and his testimony gets corroboration from dying declarations of the deceased and the statement of Kumari Santosh. 38. A good deal of argument was made by Mr. Bajwa to convince that the deceased Jag Mohan had sustained bullet injuries and they could not be caused by a 12-bore gun. This argument is based on FSL report (Ex. P. 7), wherein no opinion was given on lead pellets, lead shots, lead slugs and wad pieces of pockets E and H to link the gun with crime. For this, suffice is to say that three 12-bore cartridges c-7 to c-9 are opined to have been fired by the 12-bore gun SBBL gun (W/2) which is said to be the crime gun. The lead slugs/balls recovered from the place of incident are not bullet pieces and the report also does not say that the lead slugs/balls recovered from the place of incident could not be fired from a 12-bore gun. The FSL report only states that due to lack of evidence they have not been connected with the 12-bore fire arms (W/1 and W/2), but by this fact, no inference can be drawn that they were pieces of bullet or that the lead slugs/pellets could not be fired from the crime gun. The FSL report only states that due to lack of evidence they have not been connected with the 12-bore fire arms (W/1 and W/2), but by this fact, no inference can be drawn that they were pieces of bullet or that the lead slugs/pellets could not be fired from the crime gun. The witnesses have described 'Goli' (ball/bullet) in a lose common parlance and by this expression, it cannot be said that injuries sustained by the deceased Jagmohan were from a bullet and they could not be by a 12-bore gun. In presence of over-whelming evidence on record, we reject this argument also. 39. Thus, we are convinced that conviction of the appellant-Madhukant under section 302 Indian Penal Code and Section 3/27 of the Arms Act is well founded calling for no interference in appeal filed by him. The co-accused, Krishna Gopal and his wife Smt. Sosar have been given the benefit of doubt by the trial Court. We do not find any strong reason to interfere in the order of their acquittal. We affirm the finding of the trial Court in this connection.Consequently, both the appeals are dismissed.Appeals dismissed. *******