K. N. OJHA, J. ( 1 ) THIS appeal has been preferred against judgment and order dated 17-7-1981 passed by Sri S. L. Tripathi, sessions Judge, Deoria in Sessions Trial No. 359 of 1980 by which appellant Gulab Singh has been convicted and has been awarded sentence of life imprisonment under Section 302,1. P. C. ( 2 ) ACCORDING to prosecution the oocurrence is said to have taken place in the night of 26/27-7-1980 at about 8 or 9 p. m. in village Belwa Dubauli, Police Station rudrapur, District Deoria , F. I. R. of which was lodged at police station Rudrapur by satya Narain Singh, deceased himself on 27-7-1980 at about 3. 15 a. m. against Gulab singh, Khublal, Bhan Singh and Subba. The police station is at a distance of 6 miles from the place of occurrence. Satya Narain Singh injured was alive at the time of occurrence and after lodging the F. I. R. he succumbed to injuries. Scribe of the F. I. R. was Rajendra Singh. ( 3 ) POST mortem examination on the dead body of Satya Narain Singh was done by Dr. C. V. Singh, Medical Officer District Hospital, deoria on 27-7-1980 at 2. 00 p. m. and following ante mortem injuries were found on the body of Satya Narain Singh, aged about 70 years :1. Gun shot wound of entry 2" x 1" x abdominal cavity deep on the left side of abdomen, 7" below the axilla. Blackening and charring was present around the wound and small intestine was coming out. 2. Abrasion 1" x 3/4" with swelling on the middle side of right arm, lower part including right elbow. Blackening and charring was present. ( 4 ) THE blood was collected in the abdominal cavity wherefrom 6 pellets were recovered by -the doctor. There was a gun shot wound of entry 2" x 2" on the outer wall of the stomach. Two wads and pellets were recovered from it. Semi digested food was found in the stomach. There was a lacerated wound 2" x 2" on the outer side of spleen. Faecal matter was present in both the intestines. ( 5 ) IN the opinion of the doctor, death of satya Narain Singh had taken place due to shock and haemorrhage resulting from ante mortem injuries. Semi digested food was found in the stomach. There was a lacerated wound 2" x 2" on the outer side of spleen. Faecal matter was present in both the intestines. ( 5 ) IN the opinion of the doctor, death of satya Narain Singh had taken place due to shock and haemorrhage resulting from ante mortem injuries. ( 6 ) AFTER the F. I. R. was lodged, the investigating officer Ganga Prasad Tripathi, recorded the statement of injured Satya Narain singh and Smt. Babuni. Earlier the F. I. R. was lodged under Section 307, I. P. C. but later on it was converted under Section 302, i. P. C. Since Satya Narain Singh later on died, hence his statement recorded under Section 161, Cr. P. C. was treated as dying declaration. After completing the investigation including preparation of inquest report, site plan etc. , the charge sheet was submitted against accused Gulab Singh, Khub Lal, bhan Singh and Subba, against whom the f. I. R. was lodged and the case was committed to the Court of Session. ( 7 ) PROSECUTION examined P. W. 1 Smt. Babuni, P. W. 2 Dhelaroo, P. W. 3 Dukhi and p. W. 4 Basant Singh as eye witnesses. P. W. 5 is constable Matbar Singh, who carried satya Narain Singh to Rudrapur Dispensary, district Deoria and when Satya Narain Singh died on the way to district hospital Deoria, he carried his dead body back to the police station, where inquest report was prepared. P. W, 6 Davan Chaubey, head constable of police station Rudrapur, district Deoria, prepared chick report of Satya Narain Singh at the police station. P. W. 7 is Dr. C. V. Singh who conducted post mortem examination on the dead body of Satya Narain Singh. P. W. 9 is Ganga Prasad Tripathi, who was the station Officer at police station Rudrapur district Deoria, who recorded the statement of satya Narain Singh under Section 161, cr. P. C. , which has been treated as dying declaration by the learned Sessions Judge. ( 8 ) ACCORDING to prosecution, Satya narain Singh was resident of village Belwa dubauli, police station Rudrapur district deoria. He had three sons Basant Singh, nem Singh and Kapildeo Singh. Appellant gulab Singh is the son of Nem Singh. Smt. Babuni wife of Banshi Singh is resident of the same village. ( 8 ) ACCORDING to prosecution, Satya narain Singh was resident of village Belwa dubauli, police station Rudrapur district deoria. He had three sons Basant Singh, nem Singh and Kapildeo Singh. Appellant gulab Singh is the son of Nem Singh. Smt. Babuni wife of Banshi Singh is resident of the same village. Her daughter was married with Kapildeo Singh son of Satya Narain singh. Smt. Babuni had no issue other than the sole daughter, therefore, she executed registered sale deed in favour of Satya Narain singh in respect of her property. Gulab singh, his grandson, used to demand that his name should be mutated over the property of Satya Narain Singh, but Satya Narain singh refused to do so, because he used to say that after his death, all his sons would be entitled for share. Therefore, he would not execute sale deed in favour of any person. Satya Narain Singh along with Smt. Babuni was going from his residence to the residence of Smt. Babuni towards village belwa Dubauli, in the night of 26/27-7-1980 at about 8 or 9 a. m. as he had to sleep there. When they reached near the mango tree of habib Sai, Gulab Singh along with Khub Lal bhan Singh and Subba met them and Gulab singh said that since he was not executing sale deed of the land in his favour, therefore, he had to face the consequences and gulab Singh fired at Satya Narain Singh. Dukhi and Dhelaroo Yadav of the same village reached there and saw the occurrence. After firing, Gulab Singh and other accused persons ran away. Satya Narain Singh got f. I. R. written from Rajendra Singh of the same village Belwa Dubauli and lodged it at police Station Rudrapur, in the same night of 27-7-1980 at 3. 15 am. Prosecution examined 4 eye witnesses as mentioned above. Eye witnesses P. W. 2 Dhelaroo, P. W. 3 Dukhi and P. W. 4 Basant Singh were declared hostile by the prosecution as they did not support the prosecution story. ( 9 ) AFTER appreciating the evidence, learned Sessions Judge passed impugned order of conviction and sentence. Accused khub Lal, Bhan Singh alias Chandra Bhan singh and Subba were acquitted and Gulab singh was convicted and sentenced to life imprisonment against which this appeal has been preferred. ( 9 ) AFTER appreciating the evidence, learned Sessions Judge passed impugned order of conviction and sentence. Accused khub Lal, Bhan Singh alias Chandra Bhan singh and Subba were acquitted and Gulab singh was convicted and sentenced to life imprisonment against which this appeal has been preferred. Accused Gulab Singh has denied his participation in the crime and stated under Section 313, Cr. P. C. that he has been falsely involved in the case, so that he may not be able to get the property of Satya Narain singh. ( 10 ) WE have heard Sri R. P. Tripathi, learned counsel for the appellant and Sri g. S. Bisariya, learned A. G. A. and have gone through the record. ( 11 ) A perusal of the record shows that p. W. 1 Smt. Babuni, P. W. 2 Dhelaroo, P. W. 3 Dukhi and P. W. 4 Basant Singh are said to be eye-witnesses of the occurrence, P. W. 2 Dhelaroo, P. W. 3 Dukhi and P. W. 4 Basant singh, who are residents of the same village belwa Dubauli, did not support the prosecution story and they have been declared hostile by the prosecution. But Smt. Babuni {p. W. 1) has supported the prosecution story as described in the F. I. R. She has stated as how she was coming with Satya Narain singh to her residence, when on the way, appellant along with three others met and gulab Singh fired with pistol from a nearby place. Thereafter Satya Narain Singh was carried to the police station and F. I. R. was lodged in the same night at about 3. 15 a. m. on 27-7-1980 by name against appellant and three others. F. I. R. was signed by Satya narain Singh. Since his condition was serious, his statement under Section 161, cr. P. C. was recorded by the investigating officer and Satya Narain Singh specifically stated that since he did not want to execute the sale deed of the land in favour of the appellant, he had caused firearm injury to him. Lateron when Satya Narain Singh was being carried to the hospital, Deoria, he died on the way. P. C. was recorded by the investigating officer and Satya Narain Singh specifically stated that since he did not want to execute the sale deed of the land in favour of the appellant, he had caused firearm injury to him. Lateron when Satya Narain Singh was being carried to the hospital, Deoria, he died on the way. Therefore , he was brought back and the case was turned from 307 to 302, I. P. C. P. W. 5 Matbar Singh has stated that he was constable at police station Rudrapur and he had carried injured satya Narain Singh from the police station to P. H. C. Rudrapur, where doctor advised him to carry Satya Narain Singh to District hospital Deoria. Therefore, he started for district Hospital Deoria, but he had travelled only one Km. from P. H. C. Rudrapur when Satya Narain Singh died on the way. In cross examination he has deposed that when Satya Narain Singh, injured was being carried to district hospital Deoria, he was alive and in senses. He has also stated that at Rudrapur he managed jeep and then started for district hospital in jeep but Satya narain Singh died near Village Chilvan mohal. In the jeep one old lady and some other persons of the village were sitting. Since Satya Narain Singh died his body was brought back to the police station Rudrapur, where they reached about 7 a. m. Thus, from the statement of P. W. 5 Constable Matbar singh, it becomes clear that Satya Narain singh was injured and he was carried to lodge F. I. R. at the police station in alive condition. The statement of P. W. 5 Constable matbar Singh is corroborated by the statement of P. W. 6 H. C. Davan Chaubey, who has stated that in the night of 26/27-7-1980 at about 3. 15 a. m. he was at police station rudrapur and he had prepared chick report of Satya Narain Singh. He has stated that when Satya Narain Singh had gone to lodge f. I. R. he was conscious and he talked with p. W. 6 H. C. Davan Chaubey and had shown his injuries to him. The statements of P. W. 5 Constable Matbar Singh and P. W. 6 Davan chaubey are further corroborated by the statement of P. W. 7 Dr. C. V. Singh, who was medical Officer of District Hospital, Deoria. The statements of P. W. 5 Constable Matbar Singh and P. W. 6 Davan chaubey are further corroborated by the statement of P. W. 7 Dr. C. V. Singh, who was medical Officer of District Hospital, Deoria. He has stated that the death of Satya Narain singh could take place on 27-7-1980 at about 7 a. m. Gravity of injury No. 1 was such that the injured could be conscious or unconscious up to 7 a. m. P. W. 9 Ganga Prasd tripathi was S. H. O. Police Station Rudrapur. He has stated that Satya Narain Singh lodged F. I. R. in his presence and after the f. I. R. was lodged he took investigation in his own hand and just thereafter he had recorded the statement of Satya Narain singh and had sent him to Rudrapur hospital along with Matbar Singh, but Matbar singh came back with dead body of Satya narain Singh in the morning and told that satya Narain Singh died on the way to district hospital, Deoria. Since the condition of satya Narain Singh was very serious, therefore, the doctor of P. H. C. Rudrapur asked to carry him to District Hospital, Deoria. This was the reason the injuries of Satya Narain singh could not be examined at P. H. C. Rudrapur. Therefore, if there is no injury report prepared by P. H. C. Rudrapur, on this ground it cannot be said that Satya Narain singh was not in conscious. The statement of Satya Narain Singh recorded by the investigating officer under Section 161, Cr. P. C. amounts to dying declaration and it has been supported by witness P. W. 1 Smt. Babuni. Satya Narain Singh used to live with her. He was going with her to her residence to sleep and, therefore, presence of Smt. Babuni is natural on the spot and the statement of Satya Narain Singh recorded under section 161, Cr. P. C. by the investigating officer, which amounts to dying declaration, supported with the statement of P. W. 1 babuni against appellant Gulab Singh is sufficient to bring the guilt home to the appellant satya Narain Singh was in senses till he got the F. I. R. lodged and his statement under Section 161, Cr. P. C. by the investigating officer, which amounts to dying declaration, supported with the statement of P. W. 1 babuni against appellant Gulab Singh is sufficient to bring the guilt home to the appellant satya Narain Singh was in senses till he got the F. I. R. lodged and his statement under Section 161, Cr. P. C. was recorded, which is proved from the statement of the witnesses P. W. 1 Smt. Babuni, P. W. 5 constable matbar Singh, P. W. 6 Head Constable davan Chaubey and P. W. 9 Ganga prasad Tripathi, investigating officer. ( 12 ) A question arises as to whether the statement of Satya Narain Singh amounts to dying declaration and is worthy to be relied on. The learned counsel for the appellant has cited, AIR 2002 SC 617 : ( 2002 Crlj 984 ), Kajal Sen v. State of Assam, in which Honble the Supreme Court has held that when there is inconsistency between statement of eye witnesses, entire story of recording dying declaration becomes doubtful. AIR 1958 SC 22 : (1958 Cri LJ 106), khusal Rao v. State of Bombay, has been cited in which Honble the Supreme Court has observed that a dying declaration can form sole basis of conviction but it depends upon the facts of the case. Another ruling cited is AIR 2002 SC 2973 : (2002 Cri LJ 4095), laxman v. State of Maharashtra, in which it has been held by Honble the supreme Court that what is essentially required in dying declaration is that the person who records it must be satisfied that deceased was in a fit state of mind. Another ruling cited is AIR 2002 SC 820 : ( 2002 Crlj 1474 ), Bhupan v. State of Madhya pradesh, in which Honble the Supreme court has held that overtact attributed to the accused appellant in dying declaration was only of slapping the deceased. Caste of appellant given in dying declaration was wrong. It was held that dying declaration could not be made sole basis of conviction. AIR 1962 SC 130 : (1962 (1) Cri LJ 196), tarachand Damu Sutar v. The State of maharashtra, has been cited in which honble the Supreme Court has held that a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. AIR 1962 SC 130 : (1962 (1) Cri LJ 196), tarachand Damu Sutar v. The State of maharashtra, has been cited in which honble the Supreme Court has held that a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be believed if there are no grounds for doubting it at all. None of the above rulings warrant the rejection of the dying declaration in the present case. ( 13 ) IN instant case the doctor has stated that injury No. 1 of Satya Narain Singh was such that in the night of 26/27-7-1980 when he was lodging, F. I. R. he could be in senses and it could be otherwise also but the statement of Satya Narain Singh was recorded by the investigating officer who was present at the police station and Satya narain Singh had stated the circumstances in which appellant Gulab Singh was intending for getting his name mutated in the landed property. Satya Narain Singh also stated that when he along with Smt. Babuni was going to her residence and reached near mango tree of Habib Sai, the appellant and three others used insulting language against him and said that Satya Narain Singh was enjoying life and appellant his grandson and other family members, were facing hardships. Therefore, he had to face consequences and he fired at him. If Satya Narain singh and Smt. Babuni have stated that they saw Gulab Singh causing firearm injuries from a close range, this fact is worthy to be relied on because in post mortem examination report blackening and charring was found present around the wound. When smt. Babuni was cross examined, she has stated that the fire was made by Gulab Singh from a distance of 8 or 10 steps. She is an illiterate lady of 60 years of age and it is not expected that she would have clear idea of measurements in steps, therefore, the distance which appears from the post mortem examination report and what has been stated by Smt. Babuni is consistent and it is clear that Satya Narain Singh was alive when he lodged F. I. R. and his statement under Section 161, Cr. P. C. was recorded just thereafter by the investigating officer at the police station. P. C. was recorded just thereafter by the investigating officer at the police station. If Satya Narain Singh would not have been alive, he would not have put his signature on F. I. R. and he would not have narrated the motive and circumstances in which the injury was caused by the appellant. Since blackening and charring were present around the injury resulting into death of Satya Narain Singh, therefore, injury was caused from close range. Even though it was night, Satya Narain Singh and smt. Babuni were able to recognise the real culprit. The appellant had challenged the victim with insulting utterances before actual firing. Therefore, Satya Narain Singh had full opportunity to recognise the appellant. ( 14 ) THIS is the occurrence which did take place in same family. Satya Narain Singh would not lodge the F. I. R. against his grandson unless he had really fired at him. Smt. Babuni who is an old widow lady cannot pick up courage to make false statement against gulab Singh unless he really caused firearm injuries. Three witnesses PW. 2 dhelaroo, P. W. 3 Dukhi and P. W. 4 Basant singh are residents of the same village. They do not want to incur displeasure of the appellant or his family members. If they have not supported the prosecution story and they have stated that they reached the spot after injury was caused to Satya Narain singh , it does not mean that P. W. 1 Smt. Babuni is telling lie. Since the condition of satya Narain Singh was serious, he was advised to be immediately, carried to P. H. C. Rudrapur, whenfrom he was advised to be sent to district hospital , Deoria. In such circumstance, if there was no sufficient opportunity to call for the Magistrate or doctor at the police station in the night the dying declaration of Satya Narain Singh cannot be disbelieved. In view of the law laid down in the above cited rulings, the motive, the circumstances and challenge which was made prior to fire was opened, show that there was sufficient reason and opportunity for Satya Narain Singh to be able to recognise the appellant and P. W. 1 Smt. Babuni was also able to recognize the real culprit, who is appellant in this case. Since Smt. Babuni did not recognize other three accused persons against whom F. I. R. was lodged by Satya Narain Singh, therefore, the statement of Smt. Babuni and statement of satya Narain Singh was not taken to be sufficient to prove the guilt against other three accused of the crime. But since Gulab Singh had fired from close range after making challenge, therefore, injured and Smt. Babuni had sufficient occasion to see as to who had caused firearm injury. ( 15 ) IT has been submitted by learned counsel for the appellant that P. W. 1 Smt. Babuni has stated that Satya Narain Singh along with her was going to her residence to take meal and sleep. It is submitted that it means meal was not taken and semi digested food could not be found in the stomach of satya Narain Singh. But post mortem examination report shows that semi digested food was present in stomach and faecal matter was present in the intestines. A perusal of the record shows that neither in f. I. R. nor in statement of Satya Narain Singh recorded under Section 161, Cr. P. C. , there is any mention that Satya Narain Singh was going to take meal. Only it is written that satya Narain Singh was going with Smt. Babuni to sleep at her residence. When the statement is that Satya Narain Singh sometimes used to live at his residence and sometimes at the residence of Smt. Babuni, it was possible that he would have taken some food at his residence sometime before and when the occurrence did take place the food content was found in semi digested condition. Therefore, on the basis of the stomach condition of Satya Narain Singh it cannot be held that it is not the occurrence of 26-7-1980 at about 8 or 9 p. m. ( 16 ) IN the instant case the statement of satya Narain Singh is worthy to be relied on. It amounts to dying declaration. It has been corroborated by the statement of P. W. 1 Sjnt. Babuni, the statement of the investigating officer, the Constables and his statement is consistent with the post mortem examination report. There is motive to cause firearm injury and no person would falsely involve his own family member unless he is really the culprit and caused the injury. It has been corroborated by the statement of P. W. 1 Sjnt. Babuni, the statement of the investigating officer, the Constables and his statement is consistent with the post mortem examination report. There is motive to cause firearm injury and no person would falsely involve his own family member unless he is really the culprit and caused the injury. Therefore, we fully subscribe to the view expressed by learned Sessions Judge, who held Gulab Singh guilty under Section 302, i. P. C. and sentenced him with life imprisonment. ( 17 ) HENCE, instant appeal does not yield any fruitful result and is liable to be dismissed. ( 18 ) THE appeal is dismissed. Accused appellant Gulab Singh is on bail. His bail is cancelled. He shall be taken into custody and sent to jail to serve out the sentence. ( 19 ) OFFICE shall send a copy of this judgment along with record to the Court below for needful compliance under intimation to this Court within two months. Appeal dismissed.