JUDGMENT : Both the appellants were put on trial on the accusation of committing murder of Manoj Kumar Gupta in furtherance of their common intention by causing firearm injury to him. The trial court having found both of them guilty convicted them for the offence punishable under Section 302/34 of the Indian Penal Code vide its judgment dated 19.4.2008 and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.30,000/-out of which Rs.5000/-was ordered to be deposited in favour of the State Government and the rest of the amount was ordered to be paid to the widow of the deceased. 2. The case of the prosecution as has been made out in the Fardbeyan (Ext.4) is that Manoj Kumar Gupta was having a counter for selling building materials. As usual on 4.5.2005 he left home at about 5 p.m. in the evening for coming to his counter. At about 7-7.30 p.m. someone rang to the informant and informed that Manoj Kumar Gupta has been shot at Munka Bagicha. On getting this information, the informant, Sanjay Kumar Gupta (P.W.8) and his brother Bablu Kumar Gupta (P.W.7) came and found their brother Manoj Kumar Gupta seriously injured. Immediately he was taken to Hospital. In the way, he in the state of semi consciousness was uttering that someone by calling on his Mobile asked him to come to Munka Bagicha as he had to purchase sand, stone chip etc. On receiving call, he came to Munka Bagicha on his Motor Cycle where both the appellants shot at him. At the Hospital some treatment was given to him by Dr.Vijay Shankar (P.W.10) as well as by Dr. Anwar Akram (not examined). Upon giving first aid, the patient was asked to be taken to RIMS. While he was being taken to RIMS, patient died in the way at about 11 p.m. on 4.5.2005. 3. The dead body was again brought to Hospital where Sudhir Kumar Verma, A.S.I posted at Sadar Thana came and recorded the Fardbeyan of the informant, Sanjay Kumar Gupta at about 6.30 p.m. on the next day i.e, 5.5.2005. On such fardbeyan, a formal FIR (Ext.5) was drawn and the case was lodged against the appellants. P.W.9, Sudhir Kumar Verma himself took up the investigation. During investigation, he held inquest on the dead body of the deceased and prepared inquest report (Ext.6). On such fardbeyan, a formal FIR (Ext.5) was drawn and the case was lodged against the appellants. P.W.9, Sudhir Kumar Verma himself took up the investigation. During investigation, he held inquest on the dead body of the deceased and prepared inquest report (Ext.6). After preparing an inquest report, the dead body was sent for post mortem examination which was conducted by Dr.Marshal Aind (P.W.1), who upon holding autopsy on the dead body did find following external injuries. 1. Blood clots on both side of lower part of face redish in colour. 2. Left upper eye lid swollen and bluish in colour. 3. At lateral edge of left eye-brow, stitched wound was found. On removing stitch, lacerated wound ¼ “ x ¼ “ x muscle deep was found. Spots of multiple blood clots on right arm redish in colour were found. On upper part of right arm laterally oval shaped wound inverted margin measuring 1” x ½ “ x muscle deep. 4. In right mid arm anteriorly oval shaped wound with everted margin 1- ¼” x 1’. 5. Right chest laterally in mid portion lacerated wound 1-½ x x 1” x muscle deep. 6. On left chest on the back lateral to scapular lacerated oval wound with inverted margin blackened skin around wound ¾ “ x ½ “ x chest cavity deep – wound of entrance. 7. Blood spot on back left chest in front just below mid clavicle, transversely a clear cut wound with sharp angle at the ages and slightly curved margin 1” x ¼ “x chest cavity deep. Spots of blood clot on chest. Internal Examination : On opening chest – blood clots present in chest cavity. Right lung pale intact, left lung ruptured and damaged. Heart in both chamber empty. Liver , spleen and kidney were found pale and intact. One piece of bullet was removed from left iliac fossa embedded in membrane posteriously. 4. Dr. issued post mortem examination report (Ext.1) with an opinion that death was caused due to haemorrhage and shock caused by firearm injuries. Meanwhile, the Investigating Officer recorded the statement of the witnesses and also inspected the place of occurrence. 5. On completion of investigation, charge sheet was submitted against both the appellants, upon which cognizance of the offences punishable under Section 302/34 of the Indian Penal Code and under Section 27 of the Arms Act was taken. 6. Meanwhile, the Investigating Officer recorded the statement of the witnesses and also inspected the place of occurrence. 5. On completion of investigation, charge sheet was submitted against both the appellants, upon which cognizance of the offences punishable under Section 302/34 of the Indian Penal Code and under Section 27 of the Arms Act was taken. 6. Upon the case being committed to the court of sessions, both the appellants were put on trial, during which the prosecution examined as many as 11 witnesses. Of them, P.W.2, Shyam Prakash Singh is the person, who had given information telephonically to the informant, on being found that the deceased has been shot at. This witness has turned hostile. P.W.3, Neelendu Jaipuriya and P.W.4,Yamuna Devi, Bhabhi of the deceased did not support the case of the prosecution and thereby they were declared hostile. P.W.5, Sita Ram Sao, father of the deceased and P.W.6, Sushma Devi, wife of the deceased did testify that the deceased had left home at 5 p.m. on 4.5.2005 to come to his counter for selling building materials. At about 7.30 p.m. the informant Sanjay Kumar Gupta received information telephonically that Manoj Kumar Gupta had been shot at at Munka Bagicha where P.W.7 and P.W.8 both brother of the deceased went and brought the deceased to Hospital where they also came and then had had talk with the deceased, who disclosed that it was the appellants who has shot at him. According to P.W.7, Bablu Kumar Gupta and P.W.8, Sanjay Kumar Gupta, when it was informed telephonically that their brother Manoj Kumar Gupta has been shot at, they came to Munka Bagicha where they did find their brother lying on the ground under pool of blood. Immediately, P.W.2, Shyam Prakash Singh as well as P.W.7 and P.W.8 and two more persons to Hospital. In the car and also at Munka Bagicha the deceased on being asked did disclose that while he was returning home, somebody called on his Mobile and asked him to come to Munka Bagicha as they had to purchase building materials. When he did not agree, the person, who had called asked that they had to leave the place and are ready to give money in advance. Thereupon he came to Munka Bagicha where he did not find anyone and when he turned around to come back, he was shot at by the appellants. When he did not agree, the person, who had called asked that they had to leave the place and are ready to give money in advance. Thereupon he came to Munka Bagicha where he did not find anyone and when he turned around to come back, he was shot at by the appellants. They further deposed that when the deceased was taken to Hospital crowd gathered. P.W.6 Sushma Devi and P.W.5, Sita Ram Sao also reached over there, there the deceased in presence of them as well as one Journalist, Nilendu Jaipuriya (P.W.3) and the police disclosed that it were the appellants, who have shot at him. P.W.11, Shankarlal Gupta also deposed in the same line, though with some variations. 7. The trial court having placed its reliance on the testimonies of witnesses, particularly P.W.7 and P.W.8 and even P.W.11 did find the appellants guilty for committing murder of the deceased. However, the court in spite of evidences being there to the effect that the deceased died on account of injury being caused by firearm acquitted the appellants of the charges under Section 27 of the Arms Act. The trial court having convicted the appellants under Section 302/34 imposed sentence as has been stated above. 8. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been filed. 9. Mr. B.M.Tripathy, learned Sr. counsel appearing for the appellant no 1.submits that entire case rests upon the oral dying declaration. It be accepted by the court only upon being convinced that the deceased was in the state of making statement which is never tainted with falsehood or embellishment but in the instant case, several circumstances are there which would go to establish that the said dying declaration is not above board, rather circumstances would go to show that the prosecution came with such case of deceased disclosing the name of the appellants with a view to falsely implicate the appellant but in fact, the medical evidence and other evidences are otherwise indicating therein that the deceased was not in position to utter a single word after receiving injury. 10. In this regard, it was submitted that the doctor did find that one of the lungs completely got damaged. 10. In this regard, it was submitted that the doctor did find that one of the lungs completely got damaged. In that view of the matter, he would not have been in position to speak out anything after receiving injury and it gets strengthened from the fact that when P.Ws.7 and 8 reached at the place of occurrence, they found the deceased in a precarious condition as blood was rushing out of the body which was made to stop by P.W.2 by pressing wound through a towel which fact itself signifies that the deceased would not have been in position to speak out anything. This fact further gets buttressed from the fact and circumstances of the case appearing in this case wherein it has come from the evidence of P.Ws.7 and 8 that they, for the first time, came to know about the culpability of the appellants of firing shot upon the deceased through P.W.2, Shyam Prakash Singh but the said Shyam Prakash Singh has never supported this fact in his evidence and thereby it can be easily said that the prosecution failed to establish that it were the appellants who shot at the deceased. Similar is the situation with respect to other witnesses, P.Ws.5 and 6, who have also testified that while the deceased was telling them that he has been shot at by the appellants. Police personnel, doctor, nurse and one Journalist P.W.3, Neelendu Jaipuriya were present before whom the deceased disclosed about the name of the appellants, who shot at him but none of the independent persons either police officer, doctor, nurse has come forward to support that fact. In that event, when only the relatives are coming forward to make out a case that it were the appellants who fired shot at the deceased but not getting corroboration from any independent source, the trial court should not have accepted the testimonies of P.Ws.5, 6, 7, 8 and 11 but ignoring the important facts which have been highlighted, the trial court has recorded the order of conviction and sentence which is hereby fit to be set aside. 11. 11. As against this, learned counsel appearing for the informant and also the State submits that it is true that the deceased on being shot at received several injuries, as a result of which, one of the lungs got damaged but one of the lungs remained intact and that the deceased died after more than 4 and ½ hours of receiving the injuries. In such situation it cannot be said that the deceased was not in the state of making any utterances in absence of any evidence contrary to it and that it is the case of the prosecution that the appellant, Arun Kumar Gupta was admittedly in inimical term with the deceased, who had lodged a case against him which was being pursued by the deceased and therefore, the appellants had held out threat to the deceased not to pursue it. In that event, testimonies of the witnesses particularly P.Ws.5, 6, 7 and 8 which could not be shaken on the point of deceased telling them about he being shot at by the appellant, cannot be discarded and thereby the trial court was absolutely justified in recording the order of conviction and sentence which needs no interference. 12. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution that the deceased was running a business through a counter for selling building materials. He on the day of occurrence i.e, 4.5.2005 left home at about 5 p.m. for coming to the counter. At 7.30 p.m. Shyam Prakash Singh, P.W.2 informed the informant, Sanjay Kumar Gupta telephonically that his brother has been shot at in from of his house at Munka Bagicha. On getting this information P.W.7, Bablu Kumar Gupta and P.W.8, Sanjay Kumar Gupta, both brother of the deceased, went there and found the deceased lying on the ground under pool of blood. They with the help of Shyam Prakash Singh (P.W.2) took the deceased to Hospital. According to P.Ws.7 and 8, while the deceased was being taken in a car to Hospital being driven by P.W.2, Shyam Prakash Singh, the deceased on being asked by P.Ws.7 and 8 told that while he was returning home, someone called on his Mobile and asked to come to Munka Bagicha as they were intending to purchase some building materials. According to P.Ws.7 and 8, while the deceased was being taken in a car to Hospital being driven by P.W.2, Shyam Prakash Singh, the deceased on being asked by P.Ws.7 and 8 told that while he was returning home, someone called on his Mobile and asked to come to Munka Bagicha as they were intending to purchase some building materials. Upon it, he came to Munka Bagicha but there he did not find anyone. As soon as he turned around for coming back, he found both the appellants over there who shot at him. When he reached Hospital, Compo under and Nurses were there but the Doctor was not available. The Compo-under immediately left Hospital to call the Doctor. Meanwhile, while the deceased had been kept in front of Operation Theatre, he disclosed about the said fact of being shot at by the appellants to his father, Sita Ram Sao (P.W.5) and his wife, Sushma Devi (P.W.6), who had reached Hospital by that time. While the deceased was making statement, the Journalist, Neelendu Jaipuriya (P.W.3) and Sudhir Kumar Verma (P.W.9), Investigating Officer and Doctor Vijay Shankar (P.W.10) were also present. Since neither P.W.3, Neelendu Jaipuriya, P.W.9, Shdhir Kumar Verma, P.W.10, Dr. Vijay Shankar nor nurse has come forward to state the said fact as has been stated by P.Ws. 7 and 8 and also by P.Ws. 5 and 6, the submission is being advanced on behalf of the defence that the deceased upon receiving injury causing damage to one of the lungs and was found in a precarious condition as he was profusely bleeding would not have been in position to utter a single word but the prosecution with the help of closely related witnesses developed the prosecution story that the deceased disclosed the name of the appellants as assailant. 13. Further submission as has been advanced is that had there been utterances by the deceased in the car, P.W.2, Shyam Prakash Singh , who drove the car to the Hospital must have said about the utterances being made by the deceased to P.Ws. 7 and 8 but admittedly, P.W.2, Shyam Prakash Singh has not said anything in this regard. 14. Thus, the question does arise as to whether the deceased having received injuries being caused by firearm was in a position to make utterances ? 15. 7 and 8 but admittedly, P.W.2, Shyam Prakash Singh has not said anything in this regard. 14. Thus, the question does arise as to whether the deceased having received injuries being caused by firearm was in a position to make utterances ? 15. In this respect, we may refer to evidence of Doctor, who did find injuries as has been stated above, apart from the injuries at one of the lungs which, according to Doctor, got damaged. However, the evidence of the Doctor does disclose that other lung and heart as well as other organs were intact, though heart was found empty. In such event, it is being argued that deceased would not have been in position to speak out but nothing has been elicited from the doctor to form such an opinion which has been expressed before the court. Contrary to it, we do find particularly from the evidence of P.W.5, Sitaram Sao that the deceased as per his evidence when was brought to Sadar Hospital, he himself went to the bed and laid down. That apart, the Investigating Officer in his evidence at paragraph 5 has stated that when he reached to the Hospital, for the first time, he found the deceased talking with others. All these facts clearly indicate that the deceased was in position to speak even after receiving gun shot injury. Having found the deceased being in a condition to speak out one would be tempted to accept the testimonies of P.Ws. 5, 6, 7 and 8, who have testified that on being asked, the deceased disclosed to P.Ws. 7 and 8 in the car itself and also at Hospital to P.Ws. 5 and 6 that it were the appellants, who fired shot at him. The submission was also advanced that P.Ws.7 and 8 have clearly testified that they, for the first time, came to know about the appellants firing shot upon the deceased from P.W.2, Shyam Prakash Singh but the said Shyam Prakash Singh in his evidence has not supported the fact that it were he, who disclosed about the name of the assailant to P.Ws.7 and 8 and thereby the testimonies of P.W.7 and 8 regarding they coming to know about the name of the appellants through the deceased be taken to be suspicious. It is true that both P.Ws. It is true that both P.Ws. 7 and 8 in their cross-examinations have said so but on close scrutiny, we do find that those facts have been stated by the witnesses in cross-examination though from their earlier statements made in the Fardbeyan and also under Section 161 of the Code of Criminal Procedure nothing seems to be there suggesting that they came to know all about it from P.W,.2 and thereby even if the witnesses have stated so, that can be taken to have come under the stress of cross-examination which hardly affects the case of the prosecution. 16. Going further in the matter, we do find that P.W.2, Shyam Prakash Singh, who took the deceased to Hospital along with P.Ws.7 and 8 and two others is normally expected to support the version of P.W.7 and 8 regarding deceased disclosing that the appellants have fired shot upon him but the witness turned hostile, when he did not support his earlier statement. 17. Similar is the situation with Neelendu Jaipuriya (P.W.3), the Journalist, before whom the deceased is said to have disclosed the aforesaid fact but again he, upon not supporting his earlier statement, has been declared hostile. 18. Now coming to the evidence of P.W.9, Sudhir Kumar Verma, the Investigating Officer, who, according to the witnesses and also as per him (P.W.9), was present and heard about the utterances made by the deceased but according to the defence, he is not supported the version of P.W.7, P.W.8 and also the other witnesses by making a specific statement that he heard the deceased saying that it was the appellants, who fired shot at the deceased. 19. We do find that the Investigating Officer has admitted in his evidence that as soon as he reached Hospital, he found the deceased talking with others and according to other witnesses, he even noted it down what the deceased had uttered at the Hospital but that was not much basis for lodging the case. Reason probably might have been that the Investigating Officer on account of being not there right from beginning would not have heard entire evidences. Reason probably might have been that the Investigating Officer on account of being not there right from beginning would not have heard entire evidences. Even if it is assumed that the investigating Officer should have drawn the FIR on the basis of such utterances being first version, which Investigating Officer failed to so, this can not be taken to be fatal for prosecution on account of latches of the Investigating Officer when the evidences are there which remain unimpeachable. 20. That apart, we do find that the prosecution has also been able to establish the motive as it has been testified by P.W.5, P.W.7 and P.W.8 that the appellant Arun Kumar Gupta was inimical to the deceased as the deceased and other family members on being assaulted by the appellants on earlier occasion had lodged a case in which evidences were going on and the appellant wanted the deceased not to pursue the said case. Even the appellant in his statement made under Section 313 of the Code of Criminal Procedure has admitted about the fact of the pendency of the case in between him and the deceased. 21. Under the circumstances as stated above, we do not find any illegality with the order of conviction and sentence recorded, though illegality seems to be there on the part of the trial court in acquitting the appellants for the offence punishable under Section 27 of the Arms Act as evidences including the medical evidence are consistent that the deceased died on account of firearm injuries but since no appeal has been preferred either by the State or by the aggrieved party, this Court is not in position to reverse the finding. 22. Thus, we do not find any merit in this appeal. Hence, it is dismissed. 23. Since the appellant no.1, Arun Kumar Gupta is on bail, he is directed to surrender before the court below immediately. If he fails to do so, the trial court would take every measure to get the appellant apprehended so that he may serve out the sentence.