JUDGMENT : (Delivered by Hon'ble Naheed Ara Moonis, J.) The aforementioned appeals are directed against the common judgment and order dated 19.4.1982 passed by Vth Additional District & Sessions Judge, Bijnor in S.T. No.332 of 1980 arising out of Case Crime No.89 of 1980, P.S. Seohara, District Bijnor whereby appellants Bundu and Irshad were convicted under Section 302 IPC and sentenced to undergo imprisonment for life with the fine of Rs.2500/- each, under Section 323/34 IPC for three months rigorous imprisonment with fine of Rs.400/- each. Shafayat and Ahmad Hasan were convicted under Section 302/34 IPC with life imprisonment and to pay fine of Rs.2500/- each. The appellant Ahmad Hasan was further convicted under Section 323 IPC to pay fine of Rs.400/- and appellant Shafayat was convicted under Section 323/34 IPC to pay fine of Rs.400/- and in default three months rigorous imprisonment. It was further directed that out of amount of fine, if paid or realized, a sum of Rs.1000/- each will be paid to the widow and children of Paramvir Singh, the deceased as compensation. Criminal Appeal No.1028 of 1982 has been filed on behalf of appellants Shafayat, Ahmad Hasan and Bundu and Criminal Appeal No.1214 of 1982 on behalf of Irshad. The appellant nos.1 and 2, namely, Shafayat and Ahmad Hasan in Criminal Appeal No.1082 of 1982 have died during the pendency of the appeal according to the report of Chief Judicial Magistrate, Bijnor, dated 24.8.2007. Hence the appeal preferred by the appellant nos.1 and 2, namely, Shafayat and Ahmad Hasan stood abated vide order dated 6.12.2012. The sole appellant Irshad has also died during the pendency of his appeal on 20.11.2006 and as such the appeal on behalf of Irshad stood abated vide order dated 25.8.2008. Thus Bundu is the only surviving convicted appellant of Criminal Appeal No.1028 of 1982. The genesis of the prosecution case in short conspectus as narrated in the FIR lodged by Ram Pal against the accused persons, namely, Irshad, Bundu, Ahmad Hasan and Shafayat with respect to an incident occurred on 12.6.1980 at about 6 pm contending therein that his brother Paramvir Singh was having licence of double barrel gun. On 11.6.1980 Irshad who is a clerk and working for tempo union which runs from Seohara to kanth and Bundu S/o Ahmad Hasan of his village came to his house for purchasing 50 cartridges from his brother Paramvir Singh. On 11.6.1980 Irshad who is a clerk and working for tempo union which runs from Seohara to kanth and Bundu S/o Ahmad Hasan of his village came to his house for purchasing 50 cartridges from his brother Paramvir Singh. Irshad and Bundu, both, are of notorious character. When his brother refused to give cartridges they became infuriated and challenged him that by nurturing enmity he will not remain alive. They went away extending threat to life to his brother. On 12.6.1980 at about 6 pm when the complainant, his brother Paramvir Singh and his father Hari Singh were returning home from their tube-well and when reached in front of the house of Ahmad Hasan, Ahmad Hasan along with his brother Shafayat, his son Bundu and one Irshad named above encircled all of them. Irshad and Bundu were equipped with knives while Ahmad Hasan had wielded with lathi and Shafayat was bare handed. Irshad exhorted to kill him at this Shafayat caught hold Paramvir Singh and Irshad and Bundu who were having knives started assaulting him with knives. When his father Hari Singh came forwarded and tried to save his son, Ahmad Hasan who was wielded with lathi, assaulted his father with lathi. Out of fear the complainant stepped away to few paces and cried for help and Vijaypal Singh, Ram Singh and Mukandi Singh of his village arrived there. They had challenged all the accused persons and scolded them thereafter all the accused persons escaped from the spot. The brother of the complainant Paramvir Singh was lying in precarious condition as he had suffered injury over his abdomen. A taxi was arranged and the complainant had taken his brother Paramvir Singh and father Hari Singh to the district hospital Moradabad for medical treatment and were admitted there. The First Information Report was lodged by Ram Pal at about 5.45A.M.on 13.6.1980 (Ext. Ka-1). The case was registered under Section 307 IPC as case crime no.89 of 1980 at police station Kotwali, district Moradabad (Ext. Ka-8). The following injuries were found on the person of Paramvir Singh examined by Dr. A.P. Singh posted as Medical Officer, District Hospital, Moradabad on 13.6.1980 at 12.30 am. Ka-1). The case was registered under Section 307 IPC as case crime no.89 of 1980 at police station Kotwali, district Moradabad (Ext. Ka-8). The following injuries were found on the person of Paramvir Singh examined by Dr. A.P. Singh posted as Medical Officer, District Hospital, Moradabad on 13.6.1980 at 12.30 am. Incised wound (stab) 7 cm x 2½ cm x pereleniel cavity deep on the left upper part of abdomen at the sub costal margin loop of intestine coming through the wound; Incised wound (stab) size 5 cm x 2 cm x pereleniel cavity deep on the left side of abdomen 4½ cm below the injury no.1 and 4 cm away from umbilicus, loop of intestine out; Incised wound size 7 cm x ½ cm x muscle deep on the left lower part of abdomen 4cm above the eliacrest. According to the Doctor's opinion all the above injuries were fresh at the time of examination and were caused by some sharp edged weapon. The injury nos.1 and 2 were grievous and the injury no.3 was kept under observation. Hari Singh was also examined by Dr. A.P. Singh (P.W-10) at about 12.50A.M.on 13.6.1980 who found the following injury on his person: Lacerated wound size 1½ cm x ½ cm x bone deep on the back of skull at the occipito parietal junction in median plan. According to the doctor's opinion the injury was fresh caused by some blunt object, the injury was kept under observation and X-ray was advised. The medical reports of Paramvir Singh and Hari Singh were proved by Dr. A.P. Singh (P.W-10) and marked as (Ext. Ka-17 and 18). On the basis of the First Information Report lodged against the appellants the criminal law was set in motion. The investigation was entrusted to S.I. Bani Singh Verma (P.W-8) who proceeded with the investigation and reached village Manduri at about 2 pm. He recorded the statement under Section 161 Cr.P.C. of Vijaypal Singh (P.W-3) and Ram Singh (P.W-4). He tried to search accused Irshad at tempo stand Seohara but could not find him. He recorded statement of Mukundi and various witnesses and at their pointing out site plan (Ext. Ka11) was prepared. He found blood at the place of incident. In the presence of witnesses plain and blood stained earth was collected and sealed separately which was exhibited as Ka-12. He recorded statement of Mukundi and various witnesses and at their pointing out site plan (Ext. Ka11) was prepared. He found blood at the place of incident. In the presence of witnesses plain and blood stained earth was collected and sealed separately which was exhibited as Ka-12. The investigating officer remained at the place of incident during night due to communal tension and proceeded only on 14.6.1980 at 6 A.M. from there and reached at district hospital Moradabad at 8.30 A.M. At district hospital he recorded the statement under Section 161 Cr.P.C. of the the complainant Ram Pal and injured Hari Singh. The investigating officer also recorded the statement of Paramvir Singh under Section 161 Cr.P.C. which was made a part of the case diary and the same was proved by P.W-8 as Ext. Ka-13. Later on Paramvir Singh succumbed to the injuries on 15.6.1980 at 3 A.M. at district hospital Moradabad. The case was converted under Section 302 IPC. The investigating officer conducted inquest and prepared the inquest report, diagram, challan of the dead body and the corpus was put in a sealed cover and was sent for postmortem examination through Rameshwar Dayal, and Ram Kumar, Constables. The corpus of Paramvir Singh was handed over to Dr. P.C. Saxena (P.W-7) who conducted the autopsy at the mortuary on 15.6.1980 at 5 P.M. and found following ante-mortem injuries on the body of the deceased: Stitched wound 21 cm long on left chest and abdomen about 13 cm below nipple-one rubber drainage tube present in the wound; Minor three abrasions marked about 0.75 cm in diameter on left side of neck in middle approximately 6 cm x 4 cm area; Tip of nose -75 cm diameter contusion present; Stitched wound present on right thumb dorselry 2 cm long; Abrasion with pealing of skin on back of both heels 4 cm x 3 cm; Stitched wound on the left side of abdomen laying transvarsly 5 cm long skin deep about 4 cm above the left out hip iliac spine. On internal examination left pleura and left lung in lower lake laterally found ruptured. According to the Doctor the above injuries were ordinarily sufficient to cause the death of a person and that the deceased had died on account of injury on left lung and stomach on 15.6.1980 at about 3 pm. On internal examination left pleura and left lung in lower lake laterally found ruptured. According to the Doctor the above injuries were ordinarily sufficient to cause the death of a person and that the deceased had died on account of injury on left lung and stomach on 15.6.1980 at about 3 pm. The Doctor proved the the above noted injuries and the postmortem report marked as Ext. Ka-9. Though the investigation was conducted by Bani Singh Verma (P.W-8) in his absence the investigation was handed over to Khem Chandra Verma (P.W-9) who on the basis of the credible evidence and material collected during investigation found complicity of all the accused appellants under Section 302 IPC hence submitted charge sheet which was proved by P.W-9 and Exhibited as Ka-16. The case was committed to the court of sessions for trial. Thereafter the charges were framed under Section 302/34, 323/34 IPC on 8.10.1980 by the Vth Additional District and Sessions Judge, Bijnore which was read over and explained to the accused persons The accused appellants abjured the charges and claimed to be tried, hence their trial commenced. In order to substantiate the charges against the appellants the prosecution examined as many as ten witnesses during the course of trial. Out of whom four witnesses were the witnesses of fact while remaining were the formal witnesses. Rampal Singh, the brother of the deceased, Paramvir Singh and son of Hari Singh, was examined as P.W-1. Hari Singh, who is the father of Rampal Singh and Paramvir Singh and an injured witness, was examined as P.W-2 while Vijaypal Singh and Ram Singh, who are eyewitnesses, were examined as P.W-3 and P.W-6 respectively. Sub-Inspector Atar Singh, who was examined as P.W-4, had proved the First Information Report lodged by Rampal Singh on the basis whereof the case was registered. Rameshwar Dayal, Constable, was examined as P.W-5, who carried the dead body of the deceased, Paramvir Singh to the district hospital Moradabad for postmortem. Dr. P.C. Saxena, who had conducted the postmortem of the deceased, Paramvir Singh, was examined as P.W-7 who proved the postmortem report. As stated earlier S.I. B.S. Verma, the investigating officer, was examined as P.W-8. Khem Chandra Verma, S.I. who was entrusted with the investigation and submitted the charge sheet against the accused persons and proved the same which was Ext. Ka-16, was examined as P.W-9. Dr. As stated earlier S.I. B.S. Verma, the investigating officer, was examined as P.W-8. Khem Chandra Verma, S.I. who was entrusted with the investigation and submitted the charge sheet against the accused persons and proved the same which was Ext. Ka-16, was examined as P.W-9. Dr. A.P. Singh, who was posted as Medical Officer at district hospital, Moradabad medically examined Paramvir Singh and Hari Singh on the fateful night of 12/13.6.1980, was examined as P.W-10 and proved the injury reports. In defence two witnesses, namely Ali Jan as D.W-1 and Satish Chand Saxena as D.W-2 had been examined. The prosecution has adduced and duly proved the following documents in evidence: Written Report Ext. Ka-1; Recovery memo of blood stained clothes of deceased Paramvir Singh and injured Hari Singh Ext. Ka-2; First Information Report Ext. Ka-8; Postmortem Examination report of deceased Paramvir Singh dated 15.6.1980 at 5 pm who died at 3A.M. Ext. Ka-9; Site Plan: Prepared on 13.6.1980 Ext. Ka-11; Memo of plain and blood stained soil from the place of occurrence Ext. Ka-12; Statement of injured Paramvir Singh recorded u/s 161 Cr.P.C. on 14.6.1980 at 8.30A.M. Ext. Ka- 13; G.D. Entry Ext. Ka-15; Charge sheet Ext. Ka-16; Injury report of Paramvir Singh examined on 13.6.1980 at 12.30 A.M. Ext. Ka-17; Injury report of Hari Singh Ext. Ka-18 examined on 13.6.1980 at 12.50 A.M.. The statements of the accused appellants were recorded under Section 313 Cr.P.C. All of them denied allegations and pleaded innocence and false implication on account of personal grudge and animosity regarding Mosque and stated that they were implicated in the incident due to old enmity and that all the witnesses belonged to the same caste and related with each other. After conclusion of the statement under Section 313 Cr.P.C. the defence has examined two witnesses, namely, Ali Jan (D.W-1) and Satish Chandra Saxena (D.W-2). D.W-1 Ali Jan stated that he was running cycle shop at Seohara and he had never seen accused Irshad at Tempo stand of Seohara working as Munshi. D.W-2 Satish Chandra Saxena who placed the G.D. of 13.6.1980 wherein information regarding name of injured Hari Singh and Paramvir Singh at 1.05 A.M. entered at about 1.25 A.M. On the information Atar Singh S.I. proceeded to district hospital Moradabad who returned to police station Kotwali at 2.30 A.M. and on his information the memo was sent to P.S. Seohara. D.W-2 Satish Chandra Saxena who placed the G.D. of 13.6.1980 wherein information regarding name of injured Hari Singh and Paramvir Singh at 1.05 A.M. entered at about 1.25 A.M. On the information Atar Singh S.I. proceeded to district hospital Moradabad who returned to police station Kotwali at 2.30 A.M. and on his information the memo was sent to P.S. Seohara. Various documentary evidence were filed in support of their case vide Ext. Kha-1- Kha-4 by the defence besides acertified copy of judgment (Ext. Ka-5) in O.S. NO.194 of 1958 Budha and others Vs. Daleep and others which was decreed on 22.5.1959 declaring the plaintiff to raise chabutra and to construct Mosque. The learned trial Judge examined the entire evidence on record meticulously and arrived at conclusion that the prosecution has proved its case beyond all reasonable doubt and accordingly convicted them and held that the appellants Bundu, present surviving appellant, and Irshad were guilty of offence punishable under Section 302 IPC while Shafayat and Ahmad Hasan were convicted under Section 302/34 IPC. On account of death of Irshad, Shafayat and Ahmad Hasan learned Amicus Curiae is now assailing the correctness of conviction and sentence in respect of appellant Bundu. We have heard Mr. Shri Ram Rawat, learned Amicus Curiae on behalf of appellant Bundu and Sri Rajeev Gupta, learned A.G.A. assisted by Sri Hasan Abdi and Sri Rahul Asthana on behalf of the State and also perused the record. Learned counsel for the appellant submitted that there are several infirmities which rendered the prosecution case vulnerable but the learned trial court has lost sight of these vital factors. It is submitted by the learned counsel for the appellant that the alleged occurrence is said to have taken place on 12.6.1980 at 6 pm and the deceased Paramvir Singh who allegedly sustained knife blows died on 15.6.1980 at 3 A.M. There was ample opportunity to get his dying declaration recorded before the Magistrate when he was constantly under the treatment of the Doctor. There was no certificate that the deceased was in a position to speak and could give his statement while recording his statement under Section 161 Cr.P.C. The investigating officer ought to have taken thumb impression or signature of the injured Paramvir Singh hence such statement on his death cannot be treated as dying declaration. There was no certificate that the deceased was in a position to speak and could give his statement while recording his statement under Section 161 Cr.P.C. The investigating officer ought to have taken thumb impression or signature of the injured Paramvir Singh hence such statement on his death cannot be treated as dying declaration. The medical report shows that Paramvir Singh who is said to have been assaulted by the appellants with knives had sustained incised wound and the injuries were found grievous in nature yet he was able to speak at the time when the statement under Section 161 Cr.P.C. was recorded by the investigating officer. It was not even recorded in the presence of the doctor on duty or the doctor who was treating the deceased. The investigating officer has recorded the statement under Section 161 Cr.P.C. in a routine manner like that of other witnesses. The entire statement is verbatim reiterated as mentioned in the FIR and as such it cannot be said that the deceased himself had spoken about the incident and the manner of assault as allegedly committed by all the accused appellants including the appellant Bundu. The trial Judge has committed manifest error in relying upon so called dying declaration which cannot be used for corroboration rather it could only be used for the purposes of contradiction. It is further contended that neither Nathu, the driver of the jeep in which injured Hari Singh and the deceased were allegedly taken to the hospital nor the mechanic who repaired the puncture of the hired jeep had been examined by the prosecution which belies the medical examination of the injured persons who were examined at about 12.30 A.M. and 12.50 A.M. when the incident had allegedly occurred at about 6 pm on 12.6.1980. The very genesis and motive of the case that the accused persons Irshad and Bundu had gone to the house of the complainant and demanded cartridges from his brother Paramvir Singh as he was possessing the licence is not proved as to whether the deceased was having licence of keeping cartridges. No such licence had been produced or proved by any other cogent evidence and, therefore, it cannot be said that the deceased was having licence of keeping cartridges. The investigating officer has also denied that he had not made any effort for ascertaining regarding possession of licence. No such licence had been produced or proved by any other cogent evidence and, therefore, it cannot be said that the deceased was having licence of keeping cartridges. The investigating officer has also denied that he had not made any effort for ascertaining regarding possession of licence. Thus the genesis of occurrence i.e. the motive is shaky and not worthy of reliance and cannot be made the sole basis for committing murder of Paramvir Singh. It is further argued by the learned Amicus Curiae that the alleged incident had occurred in the darkness of night and there was no source of light and as such chance of identifying the assailants was too remote and the appellants were implicated due to previous animosity. The First Information Report of the incident lodged by P.W-1 Rampal Singh at 5.45 A.M. on 13.6.1980 whereas the alleged incident is said to have taken place on 12.6.1980 at about 6 P.M. when the distance of police station is only 5 miles. There is no plausible explanation about the delay in lodging of FIR rather it clearly shows an outcome of due deliberation and consultation. Even if the prosecution case is accepted to be true Irshad was the main accused against whom the appeal stood abated. Ahmad Hasan who is alleged to have assaulted with lathi but no injury of lathi found on the person of deceased Paramvir Singh. There is great contradiction in the statement of the witnesses who are interested and inimical, yet the trial court has placed explicit reliance upon their statement and convicted the appellants. Learned counsel further submitted that the view taken by the trial Court is wholly erroneous and contrary to settled principles of criminal jurisprudence and, therefore, indescribable. P.W.-1 Rampal and P.W-2 Hari Singh, who are related and interested witnesses their testimony cannot be relied upon and the same is unworthy of any credence. Concludingly, it was summarized by contending that instant appeal deserves to be allowed and conviction and sentence of the appellant Bundu be set aside and he be acquitted of the charges. Learned A.G.A. has vehemently refuted the contention raised by the learned Amicus Curiae appearing for the appellant that the statement of the injured Paramvir Singh was recorded by the investigating officer under Section 161 Cr.P.C. without any certification of any doctor that he was in a position to speak. Learned A.G.A. has vehemently refuted the contention raised by the learned Amicus Curiae appearing for the appellant that the statement of the injured Paramvir Singh was recorded by the investigating officer under Section 161 Cr.P.C. without any certification of any doctor that he was in a position to speak. When the statement was recorded the injured was conscious and his condition was not so much serious. This has been observed and mentioned by the investigating officer before recording his statement at the district hospital Moradabad. The statement of Paramvir Singh is the narration of the facts which he had faced at the hands of all the accused persons and at the same time he had also stated that he was feeling great pain. The statement so recorded has been proved by the investigating officer which has been marked as Ext. Ka-13. hence cannot be doubted that the victim will falsely implicate innocent persons. The statement recorded under Section 161 Cr.P.C. of the deceased on his death attains the status of dying declaration even if it may not be taken into account, other evidence are absolutely reliable fully corroborating the prosecution case. It has specifically been mentioned in the First Information Report about the immediate motive to commit the crime that on refusal of giving cartridges to the accused Irshad and Bundu they became annoyed and at that time the complainant and his father were present and accused persons had extended threat of dire consequences to the deceased Paramvir Sing. On the next day they intercepted Paramvir Singh, his father Hari Singh and the complainant his brother Rampal Singh, who were returning from their tube-well towards home. Irshad and Bundu, both whipped out knives and Irshad specifically stated to kill him today and started assaulting Paramvir Singh while co-accused Shafayat had caught hold of him. Thus the conduct of all the accused shows their prior meeting of mind and they were present at the place of occurrence equipped with knife and lathi who assaulted Paramvir Singh and his father Hari Singh with their respective weapons at the exhortation of Irshad. The medical report of Paramvir Singh and Hari Singh fully corroborates the statement of the complainant and his father Hari Singh who is an injured witness beside other eyewitness, namely, P.W-3 Vijaypal Singh and P.W-6 Ram Singh who had seen the occurrence and reached there on the shrieks of the complainant. The medical report of Paramvir Singh and Hari Singh fully corroborates the statement of the complainant and his father Hari Singh who is an injured witness beside other eyewitness, namely, P.W-3 Vijaypal Singh and P.W-6 Ram Singh who had seen the occurrence and reached there on the shrieks of the complainant. All the witnesses were put to lengthy cross-examination but nothing were elicited to discredit their testimony with regard to time, place and manner of the monstrous incident. The learned A.G.A. further submitted that so far as the delay in lodging the FIR is concerned the complainant in his deposition before the court has clearly stated that after the occurrence took place first he had gone to arrange a taxi from Milak which was at a distance of one kilometer and thereafter on taxi brother and his father were taken to district hospital Moradabad. He reached at Moradabad only at about 12.30 P.M. in the night. The distance between Moradabad and his village is about 49-50 Km. and when they started from the village at a distance of 2½ Km at kanth the vehicle got punctured and 3½ hours were consumed for repairing the wheel. Since the condition of his brother Paramvir Singh was serious he was admitted in emergency where he had to arrange blood and other medicines from the market for his treatment hence he could not lodge the report earlier which was a very natural conduct. In such circumstances the delay, if any, in lodging the FIR will not effect the credibility of the prosecution case. In this incident the father of the complainant who was accompanying with his son Paramvir Singh, had also sustained injuries of lathi when he tried to save his son Ahmad Hasan had made a murderous assault upon him with lathi causing injury to him on the back of skull who was also medically examined on the same night by Dr. A.P. Singh (P.W-10). Therefore, the presence of P.W-2 who is an injured witness, cannot be doubted. The other witnesses had also seen incident and they were the natural witnesses hence it cannot be said that they were the chance witnesses. Their statement is consistent with the prosecution case and cannot said to be tutored. It is further contended that P.W-10 Dr. Therefore, the presence of P.W-2 who is an injured witness, cannot be doubted. The other witnesses had also seen incident and they were the natural witnesses hence it cannot be said that they were the chance witnesses. Their statement is consistent with the prosecution case and cannot said to be tutored. It is further contended that P.W-10 Dr. A.P. Singh who had first attended the injured Paramvir and his father Hari Singh at district hospital Mordabad, has categorically stated that all the injuries were fresh and caused by knife and lathi respectively. No question was put to the Doctor as to why the statement before the Magistrate had not been recorded and as such the appellant cannot derive any benefit. The medical report is fully corroborating with the ocular testimony. Learned trial court has rightly convicted and sentenced appellants Irshad, Shafayat and Ahmad Hasan (since deceased) including the sole surviving appellant Bundu who has also been assigned specific role of causing injury with knife to the deceased Paramvir Singh. He had actual participation in the commission of offence as he joined together with each other and there was common intention of all to do particular act and in furtherance of that common intention and prearranged plan the murderous assault took place. Minor variation or deviation in the statement of the prosecution witnesses would not topple down the entire prosecution case. From thread bare analysis of the evidence on record the deposition of P.Ws-1, 2, 3 and 6 fully corroborate the factum of time, manner and place of incident with the medical report. Hence conviction and sentence against the surviving appellant Bundu deserves to be upheld. We have scrutinized the submission on the anvil of the evidence on record. Firstly we shall deal with the mute question whether the injured Paramvir Singh whose statement under Section 161 Cr.P.C. was recorded by the investigating officer on his death can be treated as dying declaration or not and whether the same can be made basis for conviction. In this regard the statement of the investigating officer B.S. Verma ( P.W-8) is pertinent to be examined. After the case was registered on 13.6.1980 at 5.45 A.M. at police station Seohara the investigation was handed over to the investigating officer (P.W-8). In this regard the statement of the investigating officer B.S. Verma ( P.W-8) is pertinent to be examined. After the case was registered on 13.6.1980 at 5.45 A.M. at police station Seohara the investigation was handed over to the investigating officer (P.W-8). On 13.6.1980 firstly he reached at about 2.15 P.M. in the village Manduri, P.S. Seohara where the incident had occurred and after inspecting the place of occurrence he prepared the site plan. He had collected the blood stained soil in the presence of the witnesses and prepared its memo. He had tried to search the accused persons but he could not find them. On account of this incident there was communal turmoil between two groups in the village hence he remained there in the night. At about 6 A.M. on 14.6.1980 he reached to the district hospital Moradabad at 8.30 A.M. where he recorded the statement of the complainant Rampal Singh, injured Hari Singh and Paramvir Singh, the deceased which was entered by him in the case diary and it has specifically been stated by him that when the statement of Paramvir Singh was recorded he was conscious and there was no expectation that he will die and hence he had neither made any effort to call any doctor or Magistrate for recording his statement nor he had taken any permission from the doctor for recording his statement. While recording the statement the investigating officer had observed the general condition of the injured and stated that he was not in a good condition but he was conscious and was speaking. Hence he recorded the statement of Paramvir Singh as stated by him. The statement so recorded has been proved as Ext. Ka-13 by the investigating officer, P.W-8. Admittedly the statement of the victim was recorded at 8.30 A.M. by the investigating officer on 14.6.1980 by that time on account of medical aid provided to him his condition would have improved. The incident had taken place on 12.6.1980 at 6 pm. The statement so recorded has been proved as Ext. Ka-13 by the investigating officer, P.W-8. Admittedly the statement of the victim was recorded at 8.30 A.M. by the investigating officer on 14.6.1980 by that time on account of medical aid provided to him his condition would have improved. The incident had taken place on 12.6.1980 at 6 pm. and he was admitted in district hospital at 12.30 A.M. Thus there was ample time for improvement in his general condition and finding him that he is conscious to speak the investigating officer recorded his statement under Section 161 Cr.P.C. Such statement of the injured as recorded by the investigating officer consequent upon his survival can only be treated as a statement under Section 161 Cr.P.C. and only then the statement can be used for corroboration or contradiction. When the injured Paramvir Singh was admitted in the hospital it was the duty of the Doctor to provide medical aid who was stabbed with knife on his abdomen. The investigating officer who reached at the hospital recorded the statement of the injured only after satisfying that the injured was in a conscious state and was able to speak. This statement has been recorded by the investigating officer in a natural manner as a part of his duty to record the statement of the witnesses under Section 161 Cr.P.C. The deceased could not survive and expired on the very next day i.e. on 15.6.1980 in the morning at 3 A.M. It is settled law that the statement under Section 161 Cr.P.C. of the injured recorded before his death by the investigating officer shall be treated on his death as dying declaration as held in the case of Tapinder Singh vs. State of Punjab and others; 1970 (2) SCC 113 . On analysis of the said dying declaration the deceased has narrated the entire incident in a very natural manner and has categorically stated about the assault perpetrated by the appellants Irshad and Bundu. Injuries proved fatal leading to the death of the deceased. We may refer some of the judgments of Hon'ble the Apex Court with regard to the admissibility and evidentiary value of dying declaration recorded in the presence of Magistrate or Doctor and such statement recorded by the investigating officer which becomes a dying declaration of the deceased after his death. Injuries proved fatal leading to the death of the deceased. We may refer some of the judgments of Hon'ble the Apex Court with regard to the admissibility and evidentiary value of dying declaration recorded in the presence of Magistrate or Doctor and such statement recorded by the investigating officer which becomes a dying declaration of the deceased after his death. In the case of Bhajju @ Karan Singh vs State Of M.P (2012)4 SCC 327 it is stated that Section 32 of the Evidence Act, 1872 was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes statement of the deceased admissible, which has been generally described as dying declaration. The court, in no uncertain terms, held that it cannot be laid down as an absolute rule of law that dying declaration could not form the sole basis of conviction unless it was corroborated by other evidence. The dying declaration, if found reliable, could form the basis of conviction. Similar principle was stated by the Hon'ble Apex Court in the case of Surinder Kumar v. State of Haryana (2011) 10 SCC 173 where the dying declaration was found to be shrouded by suspicious circumstances and no witness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration. In the case of Laxman v. State of Maharashtra (2002)6 SCC 710 , while dealing with the argument that the dying declaration must be recorded by a magistrate and the certificate of fitness was an essential feature, made the following observations: ". In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records the dying declaration must be satisfied that the deceased was in a fit state of mind." In Girja Prasad Vs. State of Madhya Pradesh (2007) 7 SCC 625 while particularly referring to the evidence of a police officer the Hon'ble Apex Court observed that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 the Apex Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful. Keeping in view the aforesaid decisions of the Apex Court it would be safe to go through the other corroborative evidence of eyewitness with the medical evidence besides the statement recorded under Section 161 Cr.P.C. of the deceased. Considering the nature and the number of injuries suffered by Paramvir Singh and his father Hari Singh the natural anxiety of the complainant and other persons at the spot to focus their attention to save their life and, therefore, it cannot be said that within the short span of time between the occurrence and the recording of statement under Section 161 Cr.P.C. of the injured by the investigating they have been tutored to falsely name the appellants as assailants in place of the real culprit and also to concoct the existence of motive for the crime. The victim Paramvir Singh had succumbed to the injuries on 15.6.1980 at 3 A.M. and his statement recorded under Section 161 Cr.P.C. has been treated as dying declaration on his death occurred on 15.6.1980. An accused can be convicted if the dying declaration is acceptable as truthful even in the absence of corroborative evidence and for the sake of argument if the statement which was recorded by the investigating officer is said to be a tutored one the evidence of eyewitnesses, namely, Rampal Singh, the complainant (P.W-1) and Hari Singh, the father of father of the complainant (P.W-2), Vijaypal Singh (P.W-3) and Ram Singh (P.W-6) whose testimony appears to us trustworthy and unshaken and there is no convincing reason to disbelieve their testimony that they would falsely implicate the appellants in place of real assailants. The Hon'ble Apex Court has decided in catena of cases that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement had been made at the earliest opportunity and was not by the interested witnesses. The statement of P.W-1 Rampal Singh divulging the facts that in an unnatural manner the accused appellants had way laid his brother Paramvir Singh inflicting injuries by knives over his abdomen and on account of stab injuries loop of intestine had come out. P.W-2 Ram Singh too was assaulted with lathi when he tried to save his son. It was the natural conduct of the P.W-1 to first give medical aid to them for which he had to arrange a vehicle. A detail description has already been given which has been discussed in preceding paras. There is no material contradiction in the statement of witnesses regarding manner of participation of all the appellants. From the evidence on record, it is fully explained that the First Information Report was lodged at 5.45 A.M. on 13.6.1980 and could not be lodged earlier. A detail description has already been given which has been discussed in preceding paras. There is no material contradiction in the statement of witnesses regarding manner of participation of all the appellants. From the evidence on record, it is fully explained that the First Information Report was lodged at 5.45 A.M. on 13.6.1980 and could not be lodged earlier. The testimony of Doctor A.P. Singh (P.W-10), who had examined Paramvir Singh and Hari Singh lends support to the prosecution case. Paramvir Singh had sustained 3 stab wound over the abdomen which was caused by sharp edged weapon. Loop of intestine came out from the abdomen. During the course of his postmortem examination Dr. P.C. Saxena (P.W-7) found three minor abrasions and skin of heel pealed off, the injuries were clarified that injury on neck and tip of the nose could be caused by impact of any hard substance and abrasion on heels when he was forcibly dragged. According to the prosecution Shafayat had caught hold the deceased he would have made struggle to release himself when two persons were stabbing him with knives. P.W-3 Vijaypal Singh and P.W-6 Ram Singh who immediately reached at the spot when Rampal Singh (P.W-1) raised alarm for help they challenged the accused appellants they have identified the assailants and had opportunity to see them running after committing crime. All the accused persons are known to all the witnesses as they reside in close vicinity of each other except Irshad. Irshad who was working as Munshi at the Tempo Union of Seohara used to visit Paramvir Singh, the deceased. Thus it cannot be said that Irshad and other accused persons were not known to the complainant party and the complainant has falsely implicated all of them. The dispute regarding building of mosque was decided in favour of muslim party long time ago and that could not be a ground to falsely implicate the accused appellants. The place of occurrence is fully supported by the site plan prepared by S.I. B.S. Verma (P.W-8). The incident took place near the house of appellant no.2 Ahmad Hasan (since deceased). The surviving appellant Bundu is the son of Ahmad Hasan who along with Irshad had committed brutal assault while Shafayat was catching hold the victim and Irshad challenged to kill him today who should not remain alive. The incident took place near the house of appellant no.2 Ahmad Hasan (since deceased). The surviving appellant Bundu is the son of Ahmad Hasan who along with Irshad had committed brutal assault while Shafayat was catching hold the victim and Irshad challenged to kill him today who should not remain alive. Thus the witnesses have stated in a very natural manner the overt act of all the accused persons coupled with the conduct at the relevant spur of moment. All the evidence are of conclusive nature which cannot be doubted to raise any suspicion of their false implication. The testimony of other eyewitnesses is wholly trustworthy with regard to the manner of assault committed by the accused persons. The sole surviving appellant, Bundu, who was equipped with knife and the accused Irshad (since deceased), both had assaulted Paramvir Singh. The deceased who had sustained stabbed wound on his abdomen while the co-accused Shafayat (since deceased) had caught hold him. Hari Singh (P.W-2), the father of the injured, was also given lathi blow by Ahmad Hasan (since deceased) and on hue and cry when all the witnesses arrived there the accused persons had escaped from the spot. There was sufficient light to identify the accused persons who were known to the victims. The argument of learned Amicus Curiae is that witnesses are related and partisan hence no reliance can be placed. It is well settled that the evidence of partisan witness cannot be discarded. In the present case P.W-1 is the son of P.W-2. Their presence at the time of incident cannot be doubted. The statement of P.W-2 who is an injured witness cannot be discarded merely because he is related with P.W-1 and the deceased. The statement of such witnesses is subject to close scrutiny. It is also well settled that the evidence of injured witness must be rated high, such person cannot screen the real offender and would not substitute an innocent person. The evidence of other witnesses who have been examined cannot be rejected even on the ground of likelihood of being tutored whereas in fact their presence has been shown right from the beginning. The testimony of all the witnesses cannot be disbelieved merely because they are related or partisan witnesses as held by Hon'ble the Apex Court in the case of Hari Obula Reddy And Ors. The testimony of all the witnesses cannot be disbelieved merely because they are related or partisan witnesses as held by Hon'ble the Apex Court in the case of Hari Obula Reddy And Ors. vs The State Of Andhra Pradesh (1981) 3 SCC 675 and has laid down certain broad guidelines in respect of scrutinizing the evidence of the eye-witnesses, which is being reproduced here below: "But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations." In Sucha Singh and another Vs. State of Punjab reported in 2003(7) Supreme Court Cases 643 the Apex Court held that the witness being a close relative and being a partisan witness is not a sole factor to reject his testimony. A relation would not conceal the actual culprit and make allegation against an innocent person. Reverting to the facts of the present case, the statement was recorded by the police officer after due certification of fitness in discharge of his normal functions. The statement of the deceased was voluntarily and truthful description of the events whose version was fully supported by the complainant and his father who had accompanied the deceased at all relevant times, right from inflicting of the injury till the time of his admission in the hospital. The father of the deceased has also clearly stated that son is lying in precarious condition on account of incident. In other words, the complete chain of events, pointing unexceptionally towards the guilt of the appellants which has been established by the prosecution beyond any reasonable doubt. Once the statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, therefore, there is no reason to doubt the truthfulness of such statement merely because it was recorded by a police officer. In the present case when the statement of the injured was recorded by the investigating officer the injured was in a fit state of mind. In the present case when the statement of the injured was recorded by the investigating officer the injured was in a fit state of mind. It does not matter that the statement under Section 161 Cr.P.C. recorded by the investigating officer should be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. When the court entertains grave doubts whether the deceased was in fit physical and mental state to make the statement, the court may, in the absence of corroborative evidence lending assurance of the contents of the declaration, refuse to act on it. But in the absence of any discrepancy or material contradiction by omission in the examination of the witnesses the statement which has been recorded under Section 161 Cr.P.C. on the death of the deceased comes within the purview of dying declaration being absolutely credible hence the conviction based on the same cannot be faulted. The prosecution has been able to prove and establish truthfulness and correctness of the facts in issue and makes out the guilt of the accused Bundu appellant beyond shadow of reasonable doubt. Since the accused appellant Irshad, Ahmad Hasan and Shafayat are now dead the appeal has already been stood abated against them. Hence on an over all consideration, we find that the recorded conviction of the appellant no.3 Bundu by the learned Vth Additional District & Sessions Judge dated 19.4.1982 does not call for any interference. Therefore, we affirm the Trial Court's judgment of conviction and sentence against the surviving appellant Bundu. The appeal has no force and is accordingly dismissed. The appellant Bundu is on bail. His bail is cancelled. The Chief Judicial Magistrate, Bijnor shall cause the appellant Bundu to be arrested and lodged in jail to serve out the sentence as awarded by the court below. Mr. Shri Ram Rawat, learned Amicus Curiae appearing on behalf of the appellant Bundu rendered his valuable and able assistance to the Court in disposing of the present appeal, we direct the High Court Legal Aid Services Committee to pay a sum of Rs.15000/- (Rupees fifteen thousands only) to him. Office is directed to send back the record to the trial court for compliance. Judgment be certified and placed on record. ———————