MUKHERJEE, J. (1) IN Sessions Case No. 122 of 1989 on the file of the Additional Sessions Judge, Fourth court. Thane, seven persons were arraigned for rioting, five murders and other related offences. While acquitting two of them, the trial Judge convicted the other five under S. 147, 342/149, 440/34 and 302/149 Indian Penal Code and sentenced them to different terms of imprisonment, including life, and fine. Aggrieved thereby the five convicts (who were arrayed as A-1 to A-5 in the trial court) preferred appeals in the High court which were dismissed. Assailing the dismissal of their appeals three of them, namely A-2, A-3 and A-4 have filed these appeals which have been heard together and this judgment will dispose of them. (2) BRIEFLY stated the prosecution case is as under: (A) In the Waldhuni area of Kalyan City the Railways own a number of buildings, rooms of which are allotted to its employees. Eknath Brahmane (Public witness 4, is one of such employees who was allotted Room No. 7 on the ground floor of Building No. 1003. That room was used by the two sons of Eknath, namely, Manohar and Sanjay as their study; and Eknath along with his other family members lived in a nearby chawl; (B) Two and a half months prior to the incident with which we are concerned in these appeals, Eknath and his friend Rajesh were arrested for attempting to commit the murder of Baksh Jamalkhan Pathan, brother of Amir Jamal Khan Pathan (A-1 and, a week before the incident, they were released on bail. Since the attempt was made to commit the murder of his brother A-1 bore a grudge against them. (C) In the night of 20-10-1988 Sanjay along with his brother Manohar and friends Rajesh, Harshad and Romi was sleeping in their study. At or about 3.45 a.m. they woke up on hearing some noise from outside the window and found their beds splashed. They immediately got up and saw the accused persons pouring petrol inside the room through the window. Thereafter they set the room on fire by throwing an ignited matchstick and left bolting the door from outside. (D) A little later when Kanhayalal, a regular milk supplier to the residents of the railway quarters, reached there he detected some fire in Room No. 7. He immediately sent information to the family members of Rajesh and to Eknath. Thereafter they set the room on fire by throwing an ignited matchstick and left bolting the door from outside. (D) A little later when Kanhayalal, a regular milk supplier to the residents of the railway quarters, reached there he detected some fire in Room No. 7. He immediately sent information to the family members of Rajesh and to Eknath. On receiving that information they rushed there and found the room locked from outside and fire inside. Eknath unlocked the room and saw Sanjay, Harshad and Romi lying dead on the floor of the room and Rajesh and Manohar in the bathroom in a critical condition. All of them had burn injuries on their persons. (E) Eknath immediately reported the incident to the police station over telephone and arranged to send Manohar and Rajesh to Ulhasnagar central Hospital. On receiving the telephonic message Inspector Nanavade reached the spot and having learnt that the condition of Manohar and Rajesh was deteriorating issued direction to SI Tulshiram (Public witness 20 to get their statements recorded by a Magistrate. The services of Dr Prem Narayan Talareja (Public witness 16, a Special Executive Magistrate, were accordingly requisitioned. He went to the hospital and recorded their statements (Exhs. 59 and 60). A formal complaint of Rajesh was also recorded by SI Shripat Malache (Public witness 20) and on that complaint the police registered a case and took up the investigation. As the condition of Manohar and Rajesh was serious, they were transferred to K.E.M. Hospital, Bombay where the former died on 26/10/1988 and the latter on the following day. On completion of investigation the police submitted a charge-sheet and in due course the case was Committed to the court of Session. (3) AT the outset, we may point out that the prosecution case, to the extent it sought to prove that the above-named five boys were set on fire while they were sleeping inside Room No. 7 of Railway Building No. 1003 and that owing to bum injuries they met with their death stands proved by overwhelming evidence on record. Since, this part of the prosecution case was not challenged by the accused persons in the court below we need not detail or discuss the evidence adduced in proof thereof. Since, this part of the prosecution case was not challenged by the accused persons in the court below we need not detail or discuss the evidence adduced in proof thereof. (4) TO prove that the three appellants before us, namely, Balu Janardan Shantaram Shirke (A-2, Shabbir Mohammed Sayyad (A-3 and Abdul Razak Hussain Pathan (A-4 were among the miscreants who perpetrated the ghastly crime the prosecution relied solely upon the two dying declarations of Manohar and Rajesh which were recorded by Public Witness 16. Some other circumstantial evidence was also pressed into service by the prosecution to sustain the charges against A-1 and A-5 but as they have not preferred any appeal we need not detail the same. Both the courts below found that the dying declarations were properly recorded and that it was absolutely safe to make them the sole basis of conviction. (5) TO appreciate the comments made by learned counsel for the appellants against reception of and reliance upon the dying declarations we may first refer to the evidence laid by the prosecution in proof thereof. Dr Gaikwad (Public witness 15, in whose presence the dying declarations were recorded, testified that he was on duty in the central Hospital, Ulhasnagar from 9 p.m. on 21/10/1988 to 9 a.m. on the following day. At or about 5 a.m. (i.e. on 21/10/1988 Manohar Bramhane and Baba were brought to the hospital by Constable Chundrate of Mahatma Phule of Chowk Police Station, Kalyan. On their examination he found that both of them had burn injuries; the extent of such injuries was 40% and 50% respectively. After preparing their case papers (Exts. 57 and 58 respectively) and admitting them in the hospital, he sent information to the police. At or about 6.30 a.m. a Police Inspector and a Special Executive Magistrate (Public witness 16 came to the hospital and enquired of him about the condition of the patients. He then examined the level of their consciousness by asking their names and ages, who brought them to the hospital and as to what had happened to them. He found that they were able to make statements and, accordingly he made identical endorsements in the margin of the two papers in which the dying declarations were to be recorded (Exts. 59 and 60. He found that they were able to make statements and, accordingly he made identical endorsements in the margin of the two papers in which the dying declarations were to be recorded (Exts. 59 and 60. The endorsements made by him in the margin reads as under: "PATIENT is conscious and able to give statement." (6) HE next deposed that after he made the above endorsements certifying the conditions of the patients the Special Executive Magistrate got the dying declarations recorded, one after the other, by a constable who was on hospital duty. The Special Executive Magistrate put the questions to the patients and answers given by them were recorded by the police constable in "Marathi". After the dying declarations were recorded the patients put their signatures on their respective dying declarations. Then he (Public witness 15 again examined the patients and found that they were conscious. Accordingly he made another endorsement on the dying declarations which reads as under: "PATIENT is conscious and able to give statement and was so throughout his statement which has been taken in my presence." (7) IN his testimony Dr Prem Narayan Talareja (Public witness 16, the Special Executive Magistrate, stated that on being requested by the Sub-Inspector of Police he went to the hospital at 6.45 a.m. to record dying declarations of two persons. Reaching there he met Dr Gaikwad (Public witness 15 and enquired of him about the patients and further asked him to verify whether those patients were in a position to give statements. Accompanied by the doctor he then went and reached the patients bedside. Dr Gaikwad examined both the patients by putting certain questions and they replied correctly. Then he directed him to certify about the condition of the patients. Accordingly Dr Gaikwad made endorsements about the condition of the patients on two papers and he handed them over to him. On being satisfied about their health, he requested the doctor to call the police constable who was then on hospital duty to write down the declarations of the patients as he (Public witness 16 could not write "Marathi", though he could speak and follow that language. After the constable was brought he (Public witness 16 started putting questions in "Marathi", first to Manohar and the answers given by him were written down by the constable. He followed the same procedure in respect of the other patient. After the constable was brought he (Public witness 16 started putting questions in "Marathi", first to Manohar and the answers given by him were written down by the constable. He followed the same procedure in respect of the other patient. On perusal of the evidence of the doctor and the Special Executive Magistrate, we find that they corroborated each other and their evidence clearly establishes that both the declarants were conscious and able to make statements. There is nothing on record also to indicate as to why they would depose falsely. (8) THAT brings us to the contents of the two documents (Exts. 59 and 60. Both the declarants were first asked about their name, address, age, occupation and their residence. Thereafter each of them was asked as to how they received the burn injuries. In answer thereto Manohar told that he along with Romi, Harshad, Sanjay and Rajesh slept in Room No. 7 of Building No. 1003 on 20/10/1988 at or about 10.30 p.m. On the following morning at about 3.45 a.m, he heard the noise of the window and got up. He found some cold liquid falling on his body. At that time he saw the following persons standing in front of the window; (i) Amir Pathan residing at Waldhuni, (ii) Richard Philips residing at Waldhuni, (iii) Baba, brother of Lambu Yusuf, residing at Machhibazar, (iv) Sabir, brother of Babadu and (v) Baba Shirke residing at Kalyan Rambaug. They threw petrol through the window of the room which fell on his body as also on the bodies of others. He was lastly asked by Public Witness 16 what was the reason for burning them. The answer of Manohar to that was that Amir told them that you people had killed my brother Mohamad and hence I will not keep you alive. Manohar further stated that the above persons were angry about the assault on Mohamad Pathan and hence they conspired together to throw petrol on them. He lastly stated that Amir latched the room from outside and set fire to the room. As a result, Romi, Harshad and Sanjay died on the spot, while they were taken to the hospital. The statement made by Rajesh is in conformity with and corroborates that of Manohar so far as the manner of setting them on fire as also the names of the miscreants. As a result, Romi, Harshad and Sanjay died on the spot, while they were taken to the hospital. The statement made by Rajesh is in conformity with and corroborates that of Manohar so far as the manner of setting them on fire as also the names of the miscreants. (9) IN assailing the dying declarations, it was first submitted on behalf of the appellants that Public Witness 16 admitted that he was not authorised to record a dying declaration and hence the courts below ought not to have placed any reliance upon them. This contention has to be stated only to be rejected: firstly, because, our attention has not been drawn to any rules which require that without empowerment an Executive Magistrate cannot record a dying declaration; secondly, because, even if there is any such rule absence of such power does not in any way undermine the status of Public Witness 16 as an Executive Magistrate; thirdly, because there is uncontroverted evidence on record that no other Special Executive Magistrate was readily available for the purpose; and lastly because there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. It appears that the above contention was raised before both the courts below, and it was negatived in view of the evidence on record and relying on the following passage from the judgment of the court in Ramawati Devi v. State of Bihar: "A statement, written or oral, made by a person who is dead 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 persons death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case." (10) IT was next contended that as the dying declarations were not made by the two victims at the earliest available opportunity the possibility of those being the outcome of tutoring by interested parties could not be excluded. In elaborating this contention it was submitted that prior to the recording of the dying declarations by the Magistrate, the victims were questioned by the Investigating Officers as also by Dr Gaikwad (Public witness 15, but before them they did not mention the names of the miscreants. This contention is also without any substance. From the evidence it appears that both of them were rushed to the hospital in a critical condition and immediate steps were taken by the Investigating Officer to get a Magistrate to record their statements. In that context it was not expected of the Investigating Officer to record their statements in detail. So far as the doctor is concerned, we have already noticed that it was only after the Magistrate came that he ascertained whether the patients were able to make any statement. In our considered opinion the circumstance which clearly negates an inference that the statements were tutored to implicate the appellants falsely is that there is nothing on record to suggest that either of the two victims or any member of their family had an axe to grind against them (the appellants). This apart, considering the time when, and the manner in which, the incident took place no person, other than the victims could have known the miscreants and, therefore, the question of furnishing their names by f others could not have arisen. This apart, considering the time when, and the manner in which, the incident took place no person, other than the victims could have known the miscreants and, therefore, the question of furnishing their names by f others could not have arisen. (11) ON behalf of the appellants our attention was drawn to the cross- examination of Public Witness 15, where he stated, inter alia, that one of the patients disclosed his name as "Rajesh" at the time of recording of his dying declaration, but earlier when his name was asked for filling in his case paper (Ext. 58 he gave his name as Baba Tike. Public Witness 15 further stated that when two names were stated by the same person he (Public witness 15 felt that the said patient might be hallucinating. According to learned counsel, in view of the above answers given by the doctor it must be said that the patient was not in a position to make a dying declaration and that whatever he told was due to hallucination. This contention also does not merit acceptance for the dying declarations of Rajesh corroborate in all material particulars with that of Manohar including the names of the miscreants which necessarily mean that at the time his dying declaration was recorded Rajesh was in a proper frame of mind, even if earlier he was not so. Having given our anxious consideration to the entire evidence relating to the dying declarations, we are in complete agreement with the courts below that they can be safely made the basis of conviction. (12) THE only other question that remains to be answered is whether from the above dying declarations the identities of the three appellants as the miscreants has been properly and correctly established. It was submitted on behalf of the appellants that from the vague and cryptic descriptions of the miscreants given in the dying declarations it could not be said the three of them mentioned therein unmistakably referred to the appellants. As earlier noticed, the prosecution sought to establish that of the five miscreants named in the dying declarations Balu Shirke referred to A-2, Shabir to A-3 and Baba (Lambu Yusufs brother) to A-4. Having considered the evidence relating to this aspect of the matter we are of the view that identifications of A-2 and A-3 stand fully established but not that of A-4. Having considered the evidence relating to this aspect of the matter we are of the view that identifications of A-2 and A-3 stand fully established but not that of A-4. So far as A-2 is concerned, apart from his name his place of residence was stated in the dying declarations and he was arrested therefrom. Indeed, during the trial it was not even suggested that he was not a resident of the place mentioned in the dying declaration. So far as A-3 is concerned, we find that in his examination under Section 313 Criminal Procedure Code when he was told that he was described as brother of Babadu he denied the same. Relying upon the above answer it was submitted before us that in absence of any other evidence to prove that "Shabir" mentioned in the dying declarations referred to A-3 his identity could not be said to have been established. We do not find any substance in this contention for it was elicited in cross-examination of Public Witness 21 that the address of A-3 as given in the charge-sheet was his own house. It was also elicited from him that A-3 was the brother of Babadu. There cannot be any manner of doubt, therefore, regarding the identity of A-3. As regards A-4 he was sought to be identified with reference to his having a brother by the name "Lambu" Yusuf. When his identification on the basis thereof was assailed before the trial court, it wrongly took note of the fact that he was described as "Lambu" and since, according to the trial court, he was the tallest among the persons who were facing the trial concluded that he was correctly identified. This conclusion drawn by the trial court is not only factually incorrect but also presumptive. A-4 is therefore entitled to the benefit of reasonable doubt. (13) FOR the foregoing discussion, we dismiss Criminal Appeals Nos. 1136 and 1137 of 1995 preferred by Shabir Mohamad Syed (A-3 and Balu Janardhan Shantaram Shirke (A-2 respectively and allow Criminal Appeal No. 615 of 1997 preferred by Abdul Razak Hussain (A-4. A-4 who is in jail be released forthwith unless wanted in connection with some other case.