J. C. MISHRA, J. ( 1 ) THESE two appeals have been filed by the same accused, Rajendra Singh and Jagat Narain, challenging their conviction under Section 302/34 IPC and 307/34 IPC and sentence of life imprisonment and 7 years R. I. respectively recorded by Sri J. P. Sharma, II Additional Sessions Judge, Banda. ( 2 ) INFORMANT, Udai Narain Singh (P. W. 5), and Badri Singh (PW 2) are sons of Shiv Baran Singh. Deceased, Raj Kishor Srivastava, happens to be a friend of Udai Narain Singh and he had come to chat with Udai Narain Singh, at the time of the incident. ( 3 ) DILEEP Singh, father of appellant Rajendra Singh and accused Narendra Singh, was murdered. Informant Udai Narain Singh was involved in the murder of Dileep Singh and was facing sessions trial at the time of the incident. The other accused-appellant Jagat Narain was friend of accused Narendra Singh and Rajendra Singh. ( 4 ) THE prosecution case is that on 27-10-79 informant Udai Narain Singh and deceased Raj Kishor Srivastava were sitting at the chabutra, in front of the house of Badri Singh (PW 2), when at about 4. 00 P. M. accused Narendra Singh, Rajendra Singh and Jagat Narain, armed with guns, emerged from the lane running by the side of Sambhua Chamars house and rapidly reached near the chabutara, where deceased Raj Kishor Srivastava and Udai Narain Singh were sitting. Accused Narendra Singh exhorted, asking his associates to kill. It is alleged that on the exhortation of Narendra Singh accused Rajendra Singh and Jagat Narain appellants, fired from the guns and thereby caused injuries to Udai Narain Singh as well as Raj Kishor Srivastava. The incident was witnessed by Badri Singh (PW 2), who was sitting on the chabutara in front of the house of Gajju Chamar. ( 5 ) BADRI Singh (PW 2) carried the injured persons to Banda where they were admitted in the District Hospital. They were medically examined by Dr. P. C. Chandel (PW 8 ). ( 6 ) THE Medical Officer examine Udai Narain Singh (PW-5) at 8. 30 P. M. and noted the following injuries in the injury report (Ext. Ka-10 ). (1) Gun shot wound of entry 6 cm x 7 cm x abdominal content deep on back of right side of lower part of chest and upper abdomen 5 cm. ( 6 ) THE Medical Officer examine Udai Narain Singh (PW-5) at 8. 30 P. M. and noted the following injuries in the injury report (Ext. Ka-10 ). (1) Gun shot wound of entry 6 cm x 7 cm x abdominal content deep on back of right side of lower part of chest and upper abdomen 5 cm. away from mid-line of back and 8 cm below inferior scapular angle of right side. Margins were inverted and lacerated with abraded collar. Skin lost and muscles torn. Blackening was present at margins and on the torn muscles in the wound Direction inward, forward and slightly downward. Bleeding was present. X-ray was advised. (2) Gun shot wound of exit 6 cm x 6 cm x abdominal content deep on right side lateral part of abdomen and lower chest 4 cm above iliac chrest and freely communicating to injury No. 1. Tissues lacerated skin lost. Margins everted and lacerated. Injuries No. 1 and 2 were in close contact just separated by a thin strip of skin. Bleeding was present. (3) Gun shot wound of exist 2 cm x 1 cm x Abdominal contents deep freely communicating to injuries No. 2 and 1 situated 1 cm lateral and below to injury No. 2. Margins were everted and lacerated. Bleeding was present. (4) Gun shot wound of exit 1 cm x 1 cm x Abdominal content deep, 1 cm in front of injury No. 2 and 1 cm. above injury No. 3. Margins were everted and lacerated. Bleeding was present. (5) Gun shot wound of entry 1. 5 cm x 1 cm forearm content deep posterior - Medical aspect of right forearm in upper part 4 cm below elbow. There is swelling 1 cm x 1 cm on posterior-medical aspect of right forearm 11 cm below injury No. 5 underneath swelling a hard foreign body is pulpable, Margins of wound were inverted and lacerated with abraced collar. No blackening, tatooing or charring was present. X-ray was advised of right forearm upper 2/3 part. Direction of injury down-ward. ( 7 ) DR. Chandel examined deceased Raj Kishor Srivastava at 8. 45 and found the following injuries on his body, which were noted in the injury report Ext. Ka-8. No blackening, tatooing or charring was present. X-ray was advised of right forearm upper 2/3 part. Direction of injury down-ward. ( 7 ) DR. Chandel examined deceased Raj Kishor Srivastava at 8. 45 and found the following injuries on his body, which were noted in the injury report Ext. Ka-8. (1) Gun shot wound of entry 1 cm x 1 cm x Buttock contents deep on posterior medical part of right hip at the junction of thigh and hip 5 cm lateral and below the anal orifice. Margins were inverted and lacerated with abraded collar. Bleeding was present. Direction inward and upward. X-ray was advised. No blackening. No tatooing. No charring. (2) Gun shot wound of entry 1 cm x 1 cm x hip contents deep on right side of perineum above and medial to injury No. 1 and 1. 5 cm. lateral to Ano scrotal ridge. Margins were inverted and lacerated with abraded collar. No blackening, tatooing or charring was present. X-ray was advised. Bleeding was present. (3) Gun shot wound of entry 1. 5 cm x 1. 5 cm x scrotal contents deep on inferior part of right side of scrotum. Margins inverted and lacerated. The right testicle was herneated out of the wound was lacerated. Bleeding was present. Directions were same as in injuries No. 1 and 2. (4) Lacerated wound 1 cm x 0. 2 cm x skin deep on medial aspect of right feet. 7 cm in front of Medial maleolus. ( 8 ) IN the hospital Udai Narain Singh (PW-5) dictated a report (Ext. Ka-1) to Shiv Saran Lal (PW-1) who carried it to P. S. Kotwali, Banda. Head Constable, Suba Singh, on the basis of this report (Ext. Ka-1) prepared the chik report (Ext. Ka-12) and made an entry in G. P. report No. 29 at 4-00 P. M. , a copy of which is Ext. Ka-13. On the following day he sent the papers through Constable Shyam Sunder to P. S. Kamasin and made entry to this effect in D. G. report No. 21 at 10. 30 A. M. on 29/10/1979. ( 9 ) DECEASED Raj Kishor Srivastava, who was medically examined by Dr. P. C. Chandel (PW-8) was admitted as an injured patient at 8-45 P. M. ( 10 ) A request was made for recording the dying declaration. 30 A. M. on 29/10/1979. ( 9 ) DECEASED Raj Kishor Srivastava, who was medically examined by Dr. P. C. Chandel (PW-8) was admitted as an injured patient at 8-45 P. M. ( 10 ) A request was made for recording the dying declaration. ( 11 ) SRI Rajendra Prasad (PW-3) was posted as Tahsildar at the headquarters Banda. He went to the District Hospital on 27-10-79 and after satisfying that the deceased was in a fit condition, he recorded his statement (Ext. Ka-2) on oath, kept in a sealed envelope and despatched it to the Magistrate concerned. ( 12 ) DR. P. Chandel, who had advised X-ray of Udai Narain Singh arranged his X-ray under his supervision. After perusing X-ray plates (Exts. 1 and 2) he prepared X-ray report (Ext. Ka-11 ). ( 13 ) THE condition of Raj Kishor Srivastava deteriorated and despite best possible medical aid, he succumbed to his injuries at 7. 10 A. M. on 29-11-79. A memo (Ext. Ka-15) to this effect was received by the Head Constable Clerk, Suba Singh (PW-9), at P. S. Kotwali, Banda at 8. 30 A. M. where an entry was made by Constable Clerk Mannu Lal Kutiyar in G. D. , an extract of which is Ext. Ka-16. ( 14 ) HEAD Constable Krishna Pal Singh (PW-7), who was posted at P. S. Kamasin as Head Constable Clerk received report and other papers from P. S. Kotwali, Banda on 29/10/1979, when he registered a case as Crime No. 177 under Section 307 IPC vide G. D. report No. 19. In the night he received a wireless message at 10-10 P. M. that Raj Kishor Srivastava had died. On the receipt of this message the Head Constable Clerk altered the case under Section 302 IPC vide G. D. report an extract of which is Ext. Ka-6. ( 15 ) S. I. CHHEDI Lal Tripathi was posted at P. S. Kotwali on 29/10/1979. On receipt of the memo regarding the death of Raj Kishor Srivastava, he went to the District Hospital, held inquest on the dead body prepared inquest report (Ext. Ka-19), Photo lash (Ext. Ka-20) and challan lash (Ext. Ka-21 ) and sent the dead body in sealed condition through constables Ram Awadh and Ishwari Dass for post mortem examination. On receipt of the memo regarding the death of Raj Kishor Srivastava, he went to the District Hospital, held inquest on the dead body prepared inquest report (Ext. Ka-19), Photo lash (Ext. Ka-20) and challan lash (Ext. Ka-21 ) and sent the dead body in sealed condition through constables Ram Awadh and Ishwari Dass for post mortem examination. He also made report to the C. M. O. for conducting post mortem examination as also for retraining of Bandai of the deceased (Exts. Ka-22 and Ka-23 ). ( 16 ) THE post mortem examination was conducted by Dr. G. J. Gupta (PW-6), who was posted at District Hospital, Banda, on 29/10/1979 at 3. 45 P. M. He noted the following ante-mortem injuries on the dead body. 1. Gun shot wound of entry 1 cm x 1 cm x content deep. On the posterio medial part of right hip adjoining the thigh and hop 5. 5. cm lateral and below the anal orifice. Margin-lacerated inverted with abraded collar. No Blackening. No charring. No tatooing. Direction inward and upward-reaching upto bladder. Bladder is lacerated and perforated. One pellet recovered from bladder. 2. Gun shot wound of entry 1 cm x 1 cm x content (hop) deep. On right side of perinium. 4 cm. above and medial to injury No. 1 and 1. 5 cm lateral ano scrotul region. Margin lacerated and inverted with abraded collar. No blackening. No charring. No tattooing. Direction inward and upward, reaching upto sacrum. One pellet recovered from sacrum bone. 3. Stitched wound 4 cm on the right side of scrotum on the posterio lateral aspect. 4. Lacerated wound 1 cm x 1/2 cm x skin deep on the medial aspect of right foot. 7 cm. anterior to medial maleolous. ( 17 ) THE investigation of the case was conducted by S. O. Narain Singh (PW-11 ). On receipt of the chik report and papers from P. S. Kotwali he went to Kumetha Sani, interrogated Badri Singh (PW-2), Brij Bhushan, Gajua, Ram Dev and Sant Kumar, inspected the site and prepared its plan (Ext. Ka-25 ). He found the earth on the place of occurrence of offence stained with blood. He took its sample as also of the plain earth and prepared its memo Ext. Ka-26. He also interrogated Shiv Saran (PW-1) and other witnesses. Ka-25 ). He found the earth on the place of occurrence of offence stained with blood. He took its sample as also of the plain earth and prepared its memo Ext. Ka-26. He also interrogated Shiv Saran (PW-1) and other witnesses. On the following day i. e. on 31/10/1979, he went to the District Hospital and interrogated Udai Narain Singh and other witnesses. On 13-11-79 he received blood stained baniyan and shirt and dictated memo to Head Constable Clerk, Krishna Pal Singh. After observing the other formalities of investigation he submitted chargesheet (Ext. Ka-28) against the accused. ( 18 ) TO prove its case the prosecution examined scribe, Shiv Saran Lal (PW-11), eye witnesses, Badri Singh (PW-2) and Udai Narain Singh (PW-5), and Tehsildar Rajendra Prasad, who had recorded the dying declaration of deceased Raj Kishor Srivastava. ( 19 ) THE prosecution also examined Medical Officers, Dr. P. C. Chandel (PW-8) and Dr. G. J. Gupta (PW-6), who had conducted medical examination of the injured persons and performed autopsy respectively. ( 20 ) THE prosecution also examined Head Constable Clerks, Krishna Pal Singh (PW-7) and Suba Singh (PW-9), S. I. Chhedi Lal Tripathi, who had held inquest on the dead body and Investigating Officer S. O. Narain Singh. ( 21 ) BOTH eye witnesses Badri Singh and injured Udai Narain Singh, who had lodged the report proved unfaithful to the prosecution and did not support its case regarding complicity of the accused persons. They stated that they could not see and identify the culprits. ( 22 ) THE learned Additional Sessions Judge relied on the dying declaration recorded by the Tehsildar Sri Rajendra Prasad and on its basis convicted and sentenced accused Rajendra Singh and Jagat Narain, while acquitting Narendra Singh, who was assigned the role of exhortation. ( 23 ) FEELING aggrieved accused Rajendra Singh and Jagat Narain filed Criminal. Appeal No. 1950 of 1980. For reasons best known to them they filed another appeal - Criminal Appeal No. 2035 of 1980. One of the appeals was superfluous. However, we are disposing of both these appeals by this common order. ( 24 ) WE have heard Sri Pratap Narain Mishra, learned counsel for the appellants, and Sri R. C. Deepak, learned Additional Government Advocate. For reasons best known to them they filed another appeal - Criminal Appeal No. 2035 of 1980. One of the appeals was superfluous. However, we are disposing of both these appeals by this common order. ( 24 ) WE have heard Sri Pratap Narain Mishra, learned counsel for the appellants, and Sri R. C. Deepak, learned Additional Government Advocate. ( 25 ) THE learned counsel for the appellants contended that the dying declaration was not a reliable document and the deceased was not in a fit condition to give his statement. The dying declaration was result of tutoring and, therefore, it could not be relied on in recording conviction against the appellants. ( 26 ) BEFORE considering the argument advanced against the authenticity of dying declaration it would be convenient to refer to the evidence of Badri Singh (PW-2) and Udai Narain Singh (P. W. 5 ). Both these witnesses have stated that they were present on the scene of occurrence of offence and the firing was made in their presence. Udai Narain Singh (PW-5) is an injured witness. His presence on the spot cannot be doubted. He stated that he was sitting along with deceased Raj Kishor Srivastava on the chabutara, which was in front of the house of Badri Singh, when at about 4. 30 P. M. some-one fired, as a result of which both of them received he had seen accused Jagat Narain, Rajendra Singh and Narendra Singh. He, however, stated that he could not see the assailants as the shot was fired from behind the Peepal tree. Thus, Udai Narain Singh, the injured witness, has supported the prosecution case regarding date, time and place of the incident. He also gave direct evidence regarding the presence of all the accused persons near the place of incident a few minutes before the incident as also the fact that all of them had guns with them. ( 27 ) BADRI Singh, who was cited as a witness in the First Information Report, also stated that his brother Udai Narain Singh and deceased Raj Kishor Srivastava were sitting on the chabutara in front of his house and further that both of these persons had received fire-arm injuries. ( 28 ) BADRI Singh did not support the prosecution case regarding time. He stated that the incident had taken place after sunset and he could not see the assailants. ( 28 ) BADRI Singh did not support the prosecution case regarding time. He stated that the incident had taken place after sunset and he could not see the assailants. He also made a departure on the F. I. R. as well as his statement under Section 161 Cr. P. C. regarding his presence on the chabutara of Gajju Chamar. ( 29 ) THE learned Additional Sessions Judge believed the evidence of Udai Narain Singh regarding time and discarded the statement of Badri Singh on the ground that if the incident had taken place after sunset the victims could not have been got admitted in the District Hospital at 8. 30 P. M. ( 30 ) CONSIDERING the distance of Banda City and place of the incident the inference drawn by the trial judge appears to be correct. He pointed out that Kamasin is situated at a distance of 3 miles from the place of occurrence of offence and Banda is situated at a distance of 60 Kms. from Kamasin. He observed that as both the victims were admitted at about 8. 30 P. M. they must have reached Banda at about 8. 00 P. M. The time of medical examination and admission is established by the evidence of the Medical Officer and there is no reason to disbelieve it. We find that the evidence of this witness establishes beyond doubt that the incident took place at the door of Badri Singh at about 4. 00-4. 30 P. M. on the date alleged by the prosecution and both the victims had received fire-arm injuries. ( 31 ) THE learned counsel for the appellants vehemently argued that the trial Court committed an error in accepting part of the evidence of hostile witnesses while rejecting their evidence that they could not see the assailants. He contended that the evidence of these witnesses deserves to be discarded wholly. We do not find any force in this contention. ( 32 ) A perusal of the judgment would show that the learned Additional Sessions Judge was aware of the correct legal view regarding the admissibility of the evidence of hostile witnesses. He contended that the evidence of these witnesses deserves to be discarded wholly. We do not find any force in this contention. ( 32 ) A perusal of the judgment would show that the learned Additional Sessions Judge was aware of the correct legal view regarding the admissibility of the evidence of hostile witnesses. He referred to the pronouncement of the Supreme Court in Saiyed Akbar v. State of Karnataka reported in 1980 SCC (Crl) page 59 : ( AIR 1979 SC 1848 ) wherein it was observed that when a witness is declared hostile the credit worthiness had been on how much of fact he stand discredited. There is no general rule that the testimony of witness declared hositle is washed off the record altogether. ( 33 ) SIMILAR view has been taken by the Supreme Court in Dhanamjoy Chatterjee alias Dhana v. State of W. B. , 1994 SCC (Cri) 358 wherein it was held that the testimony of a hostile witness cannot be ignored totally and the Court can scrutinise his testimony and accept that portion of the same, which receives corroboration from the other evidence on record. The testimony of a hostile witness is not liable to be rejected, without even scrutinising it, although great care and caution is required to analyse the same before accepting any part of it as is otherwise found reliable and consistent with the prosecution case. ( 34 ) THE learned Additional Sessions Judge with his legal background considered the evidence of both these witnesses analytically and with care and caution. We entirely agree with the conclusion drawn by the learned Additional Sessions Judge that from the statements of Badri Singh (PW-2) and injured witness Udai Narain Singh (PW-5) it is established that the incident occurred on the date, time and place as alleged by the prosecution and both the victims, Udai Narain Singh and Raj Kishor Srivastava, received injuries as a result of firing. ( 35 ) THE learned counsel for the appellants vehemently argued that eye-witness Udai Narain Singh had himself received injuries and he would not be having sympathy with the assailants and the fact that he had not named the accused persons as assailants, establishes that victims could not see and identify the culprits either as shots were fired from behind the pipal tree or during the night. We do not find any force in this argument. We do not find any force in this argument. It is not difficult to find reason for these witnesses turning hositle. It may be recapitulated that Udai Narain Singh was himself facing trial for the murder of Dileep Singh, father of accused Narendra Singh and Rajendra Singh and, therefore, he could have made cargain with the accused, Narendra Singh and Rajendra Singh, for getting them acquitted at the cost of his own acquittal in the murder case. In fact, Udai Narain Singh (PW-5) secured acquittal. We are not aware of the circumstances in which Udai Narain Singh was acquitted but the possibility of his being acquitted on account of the favour shown by Narendra Singh and Rajendra Singh is not overruled. It may also be remembered that Raj Kishore Srivastava who lost his life in the incident belonged to a different family. In these circumstances the inference, desired by the learned counsel for the appellants, cannot be drawn particularly for the obvious reason, which impelled Udai Narain Singh and Badri Singh to turn hostile. We are not prepared to balieve their evidence that the shots were fired from hiding and, therefore, it was not possible for the deceased to have seen the assailants. ( 36 ) THE prosecution case is that the first information report was written on the dictation of Udai Narain Singh (PW-5 ). The report was scribed by Shiv Saran Lal (PW-1) who has supported the prosecution case. His evidence was rightly believed by the learned Additional Sessions Judge after considering all the criticisms raised against his evidence. Without repetition of the reasons we find that the report was prepared on the dictation of Udai Narain Singh and it was lodged at the police station without any reasonable delay. ( 37 ) THE only incriminating evidence against the appellants is the dying declaration which, according to the prosecution, was recorded by Tehsildar Sri Rajendra Prasad (PW-3 ). The learned counsel far the appellants contended that the dying declaration was not written in question and answer form. In other words the questions asked by the Tehsildar were not noted. The time of recording of the statement was also not noted. Moreover, the dying declaration was not written in the words of the deceased, but in his own words by the Magistrate. In other words the questions asked by the Tehsildar were not noted. The time of recording of the statement was also not noted. Moreover, the dying declaration was not written in the words of the deceased, but in his own words by the Magistrate. It has also been contended that before recording the statement the Tehsildar should have obtained a certificate from the Medical Officer that the deceased was in a mentally fit condition to give his statement. ( 38 ) THE aforesaid objections were raised in the trial Court and after considering the same the learned Additional Sessions Judge found that it is a reliable document. It is true that the Magistrate should record dying declaration in question and answer form so as to avoid confusion. But merely on the ground that the dying declaration was written in narrative form it cannot be discarded. Learned Additional Sessions Judge supported the view taken by him by a pronouncement of the Supreme Court in Tehal Singh v. State of Punjab, reported in 1979 SCC (Cri) 722 : ( AIR 1979 SC 1347 ) wherein it was held that the recording the substance of the answer given by the person, making the dying declaration did not attach any infirmity. Similar view was taken by the Supreme Court in Padamaben Shamalbhai Patel v. State of Gujarat, reported in 1991 SCC (Cri) 275, wherein it was held that the failure on the part of the medical men to record her (deceased) statement in question and answer form cannot in any manner affect the probative value to be attached to her evidence. In Ganpat Mahadeo Mane v. State of Maharashtra, 1993 SCC (Cri) 491 : ( AIR 1993 SC 1180 ) the Supreme Court held that the fori by itself is not important. If the statement is clear, the value of the dying declaration is not detracted because of the mere fact that the entire thing is not recorded by way of separate questions and answers. ( 39 ) THE learned counsel for the appellants then contended that the Tehsildar did not record the statement of the deceased in his words but on the contrary recorded substance in his own language. In other words the Tehsildar recorded the dying declaration in his own words and not that of the deceased. ( 39 ) THE learned counsel for the appellants then contended that the Tehsildar did not record the statement of the deceased in his words but on the contrary recorded substance in his own language. In other words the Tehsildar recorded the dying declaration in his own words and not that of the deceased. The learned counsel vehemently argued that on account of this infirmity the dying declaration cannot be considered as an independent document and consequently the conviction cannot be recorded on its basis. ( 40 ) THE Tehsildar, Sri Rajendra Prasad (PW-3), admitted that he had recorded the dying declaration in his own words. He clarified that he understood the statement given by the deceased and then wrote the declaration in his own words. The learned Additional Sessions Judge also noted this fact and observed that the language was of the witness Sri Rajendra Prasad but substance was that of the injured, Raj Kishor Srivastava. He, however, refused to discard the declaration on the ground that the Magistrate had rendered the declaration in his own language. In Teha Singh v. State of Punjab, 1979 SCC (Cri) 722 : ( AIR 1979 SC 1347 ) it was held that recording the substance of the answer given by the person making dying declaration did not attach any infirmity. In P. Babu v. State of Andhra Pradesh, reported in 1994 SCC (Cri) 424 : (1993 AIR SCW 3174) the dying declaration was written in a different language i. e. the language used was different from that of the maker. The deceased had given his statement in Telugu but the dying declaration was recorded in English. The Supreme Court found that the evidence of the doctors that the statement was read out and explained to the injured was reliable and there was no ground to reject the evidence; that after being read out the statement to the deceased admitted to be correct. The dying declaration was held to be duly and sincerely recorded and, therefore, it was relied on in basing conviction. ( 41 ) FROM the evidence of Tehsildar and also of Dr. P. C. Chandel (PW-8) who was present at the time of dying declaration, it is proved that the dying declaration was recorded on the statement of the deceased. The Magistrate had absolutely no reason to record false statement. ( 41 ) FROM the evidence of Tehsildar and also of Dr. P. C. Chandel (PW-8) who was present at the time of dying declaration, it is proved that the dying declaration was recorded on the statement of the deceased. The Magistrate had absolutely no reason to record false statement. He specifically stated that though words used were his own but the statement was in accordance with the declaration of the deceased. It is not believable that in the presence of doctor the Tehsildar could have written a different statement. We find that the dying declaration was correctly recorded and, therefore, it cannot be discarded on the ground that the Magistrate employed his own language. ( 42 ) THE Tehsildar admitted that he had omitted to incorporate the time, when he recorded the dying declaration. From his evidence, which is corroborated by the evidence of Dr. P. C. Chandel it is proved that the statement was recorded in the Hospital. Both these witnesses stated that the deceased was in a mentally fit condition to give his statement. From the injury report as also from the post mortem report it appears that the deceased had not sustained any injury in the head region or in his chest, so as to damage heart. The prosecution has proved the bed head ticket. The deceased was admitted at 8. 15 p. m. He was then in a state of shock but he was conscious. The doctor prescribed medicines and he was administered glucose. The doctor again examined him at 11. 05 p. m. and advised the medicines prescribed earlier to be continued. Then there is an endorsement by Dr. P. C. Chandel that the dying declaration was recorded by the Tehsildar Banda. Below this endorsement similar endorsement was made by the Tehsildar "the declaration recorded by me". He also appended his signature, which was proved by him in evidence and marked as Ext. Ka-3. ( 43 ) THE deceased was again examined at 12. 00 O Clock. The doctor noted that the general condition was improving. Pulse was 90. B. P. was recorded as 100. /70. Heart was normal. Lungs were clear. ( 44 ) FROM the perusal of bed-head-ticket it appears that the dying declaration was recorded between 11. 05 p. m. and 12. 00 O Clock. 00 O Clock. The doctor noted that the general condition was improving. Pulse was 90. B. P. was recorded as 100. /70. Heart was normal. Lungs were clear. ( 44 ) FROM the perusal of bed-head-ticket it appears that the dying declaration was recorded between 11. 05 p. m. and 12. 00 O Clock. Thus, mere non-mentioned of time by the Tehsildar is hardly of any relevance; more so the time of recording of the dying declaration cannot be determined by the bed head ticket itself. ( 45 ) DR. P. C. Chandel, in whose presence the dying declaration was recorded has stated that the deceased was mentally fit to give his statement. He stated that at the time of admission the deceased was conscious. He also stated that on his advice the surgeon had examined the deceased at 11. 05 p. m. on 27/10/1979 and had endorsed the treatment. He also found that the condition of patient was average. He also stated that the dying declaration was recorded after examination of the patient by the surgeon. This evidence finds support from the bed head ticket itself. ( 46 ) ON the dying declaration the Medical Officer, Dr. P. C. Chandel, had given a certificate that Raj Kishor Srivastava mentally fit and fully conscious and he remained conscious throughout the time of recording of his declaration. The learned counsel for the appellants contended that if the doctor had examined the deceased prior to the recording of the dying declaration he should have given his certificate before the start of recording statement. It is true that no such statement was recorded but merely on account of this fact it cannot be held that the deceased was not mentally fit to give his statement. The Tehsildar has stated that before recording the statement he had asked the doctor to endorse his view regarding medical condition but he had declined to give his certificate but assured him to gave requisite certificate after the recording was completed. From the statement of these witnesses, however, we are satisfied that the deceased was in a mentally fit condition to give his statement. This inference is further strengthened by perusal of the dying declaration, which shows that it is coherent and un-ambiguous statement. From the statement of these witnesses, however, we are satisfied that the deceased was in a mentally fit condition to give his statement. This inference is further strengthened by perusal of the dying declaration, which shows that it is coherent and un-ambiguous statement. In view of this inference the dying declaration cannot be discarded on the technical objection that the certificate was not obtained before starting the recording of the dying declaration. ( 47 ) IN State of Rajasthan v. Kishor, reported in 1996 Cri LJ 2003, the doctor, who was attending the deceased and giving treatment had not turned up and the Magistrate recorded her statement in the absence of the doctor. The bed case sheet in the hospital of the deceased was also not produced. The nature of the treatment given to the deceased before the Magistrate recorded the statement was also not available on record. The Supreme Court observed that these lapses do not create any doubt on the capacity of the deceased or on her mental condition at the time of giving statement as the statement was found to be clear coherent and specific. ( 48 ) IN the case before us the bed head ticket has been brought on record, which shows that the deceased was conscious throughout after his admission in the Hospital till the recording of the dying declaration and even thereafter. Shortly after the recording of the dying declaration the deceased was found to be improving as noted by the doctor at 12. 00 O clock. We have also the direct evidence of the doctor as also of the Magistrate. They have stated in unequivocal terms that the deceased was in a mentally fit condition to give his statement. The doctor gave his certificate on the dying declaration itself, after the recording was completed. The statement is clear, coherent and specific. Therefore, the argument raised by the learned counsel for the appellants has got no force. ( 49 ) THE learned counsel for the appellants then contended that the dying declaration is a tutored version as the near relations were present in the Hospital before the statement was recorded. Dr. P. C. Chandel stated that the attendants were present but they were asked to go out before recording the dying declaration. He clarified that by attendants he meant personal attendant and relations of the deceased. Dr. P. C. Chandel stated that the attendants were present but they were asked to go out before recording the dying declaration. He clarified that by attendants he meant personal attendant and relations of the deceased. There is, however, no material to suggest that at any time before recording the dying declaration the deceased was tutored by the persons attending him. The ideal conditions where the victims are unattended are rare. Merely on the account that some attendants happened to be present before the recording of dying declaration cannot be treated as sufficient for discarding the dying declaration. Moreover, the deceased had no enmity with the accused. He stated in his dying declaration that he was fired at without any reason. Therefore, he had no reason to implicate the appellants falsely in this case. It is hardly believable that he would have introduced the names of the accused persons on the prompting of his relations or attendants. The learned Additional Sessions Judge referred to a decision of the Supreme Court in Habib Usman v. State of Gujarat, reported in 1979 SCC (Cri) 671 : ( AIR 1979 SC 1181 ) wherein it was observed that mere presence of relative and friends before the making of the dying declaration does not necessarily mean that it was tutored. The defence has to prove it as a positive fact. Nothing has been elicited in the cross-examination of the Magistrate or the doctor to indicate that the deceased was tutored. It was not even so suggested to the Medical Officer. Therefore, no adverse inference as desired by the learned counsel for the appellants can be drawn merely on account of presence of the attendants in the Hospital prior to the recording of the dying declaration. ( 50 ) THE learned counsel contended that the dying declaration is contradicted by the medical evidence, which indicates that the deceased had no occasion or opportunity to see the assailants. From the evidence of the eye-witnesses the place of occurrence is fixed. The deceased and Udai Narain Singh were sitting on a chabutara when the assailants fired at them. In the dying declaration it is stated that both Jagat Narain and Rajendra had fired their guns. He further stated that either of the two fires had hit him. He further stated that after sustaining injury he tumbled and became unconscious. The deceased and Udai Narain Singh were sitting on a chabutara when the assailants fired at them. In the dying declaration it is stated that both Jagat Narain and Rajendra had fired their guns. He further stated that either of the two fires had hit him. He further stated that after sustaining injury he tumbled and became unconscious. The doctor has opined that injury No. 4, which was a lacerated wound 1 cm. x 1/2 cm. x skin deep could be caused by a fall. The deceased sustained three injuries, which were not accompanied with tattooing, charring or blackening. The shot was, therefore, fired from a distance beyond four feet. The injured, Udai Narain Singh, sustained two wounds of entry, one of which was a result of fire from close range, from a distance within four feet as it was accompanied with blackening at margins. The other gun-shot wound of entry had no blackening, tattooing or charring. It was the result of the other fire. The learned Additional Sessions Judge considered in detail the nature of injuries and concluded that injury No. 5 of the injured Udai Narain Singh and the injuries Nos. 1, 2 and 3 of the deceased Raj Kishor Srivastava could be result of one fire while injury No. 1 of Udai Narain Singh which was wound of entry was result of another fire. Injuries Nos. 2, 3 and 4 of Udai Narain Singh, which were wounds of exit, were result of injury No. 1 caused to Udai Narain Singh. . ( 51 ) LEARNED counsel for the appellants vehemently argued that the doctor opined that the injuries of the victims could be result of three fires. It may, however, be noted that the evidence of Medical Officer in this regard is only an opinion. It is true that the injuries could be caused by three fires but the possibility of the firearm injuries found on the bodies of Udai Narain Singh and Raj Kishor Srivastava being result of only two fires has not been excluded. Therefore, the dying declaration cannot be said to be contradicted by medical evidence. ( 52 ) BOTH the victims were sitting on the chabutara when the injuries were inflicted on their bodies by fire-arms. The deceased could have sustained his injuries while sitting with his legs folded. Therefore, the dying declaration cannot be said to be contradicted by medical evidence. ( 52 ) BOTH the victims were sitting on the chabutara when the injuries were inflicted on their bodies by fire-arms. The deceased could have sustained his injuries while sitting with his legs folded. It is a matter of common knowledge that when two friends are talking together and that too for a considerable period they sit leisurely. Some time they adopt posture of half lying and half sitting and frequently by folding their legs. There is nothing unusual if the deceased was sitting with his legs folded and kept on the chabutara. He may be half lying and half sitting when he sustained the injuries. It is very difficult for the witnesses to explain accurately the posture, when one sustains firearm injuries. The fact remains that the injuries could be sustained by the victims by two fires. Nothing could be elicited in the cross-examination of the Medical Officers to indicate that the dying declaration is contradicted by the medical evidence. ( 53 ) IN view of the aforesaid discussion we find that the dying declaration is a truthful statement of the deceased, who was mentally fit and had given his statement in unambiguous terms. It has withstood the test of scrutiny. It is free from any doubt. Therefore, the dying declaration by itself can be made basis for conviction. It has been held by the Supreme Court in State of Rajasthan v. Kishor, 1996 Cri LJ 2003, decided by Honble K. Ramaswamy, Honble S. Saghir Ahmal and Honble G. B. Pattanaik, JJ. that if after careful scrutiny the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and it is coherent and consistent, there is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration. ( 54 ) THE F. I. R. is no doubt belated. The prosecution has tried to explain the delay. The prosecution case, however, had come to light earlier, by the dying declaration, made by the deceased, which has been found to be reliable. The learned Additional Sessions Judge has held that despite delay in lodging the F. I. R. does not make the prosecution story doubtful. The prosecution has tried to explain the delay. The prosecution case, however, had come to light earlier, by the dying declaration, made by the deceased, which has been found to be reliable. The learned Additional Sessions Judge has held that despite delay in lodging the F. I. R. does not make the prosecution story doubtful. He has further held that the F. I. R cannot be said to be fabricated or written after concoction or consultation. Being so the F. I. R. can also be considered as a corroborative piece of evidence. ( 55 ) AFTER considering the arguments and materials on record we feel impressed by the dying declaration, which is corroborated by the testimony of Udai Narain Singh and Badri Singh, regarding time and place, as also by the medical evidence. The deceased has no reason to implicate the accused falsely in the case. We find that the prosecution has proved its case beyond shadow of doubt. ( 56 ) LEARNED counsel for the appellants contended that the accused had no motive to murder Raj Kishor Srivastava and he sustained only three injuries which were not sufficient in the ordinary course of nature to cause death. He contended that utmost an offence punishable under Section 304, I. P. C. is made out. We do not find any force in this contention. From the manner in which the accused persons fired on the vital parts of the body of the victims, after having come together there is no doubt that their intention was to commit the murder. They took no chances and did not wait for the deceased to separate from Udai Narain Singh, whom they intended to kill. It is immaterial whether they intended to kill the deceased or Udai Narain Singh or also the fact that the person whom they intended to kill survived. Considering the entire circumstances of the case we have no doubt that the intention of the assailants was to commit murder. Therefore, they were rightly convicted under Sections 302/34 and 307/34, I. P. C. ( 57 ) THE appeal is dismissed. The appellants are on bail. C. J. M. Banda shall take necessary steps for the arrest of the appellants. Appeal dismissed. .