MUNNAWAR Vs. STATE OF U P

JUDGEMENT

(1.) The facts leading to the filing of these appeals are as under:

(2.) Mr. Sushil Kumar, the learned senior counsel for the appellants has raised four arguments in the course of the hearing. It has first been submitted that the first dying declaration recorded by PW Dhani Ram Arya of Police Station, Civil Lines, Meerut in the Jaswant Rai Specialty Hospital did not bear the signature of the deceased or the endorsement of a Doctor as to the fitness of the injured and no credence could thus be attached to it. It has also been submitted that the second dying declaration recorded in the hospital by Shri Rajdev Singh, Additional City Magistrate, Meerut on the 21st May 2000 had not been properly endorsed by the Magistrate and did not satisfy the tests or instructions laid down relating to the recording of dying declaration and as the endorsement of the Doctor did not reveal the medical condition of the injured, this too was unreliable and could not be relied upon. For these assertions, the learned Counsel has placed reliance on Balak Ram v. State of U.P., (1975) 3 SCC 219 and K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) 3 SCC 618. It has, in addition, been submitted that as per the evidence on record the victim Fateh Mohammad had been admitted in the hospital not by Mohammad Shamoon PW 1 but by J.S. Pundhir PW 9 a Police Officer as per the statement of Sub-Inspector Subhash Chaudhary PW 5 and this by itself made it apparent that the two eye witnesses had not been present at the spot and had been called long after the incident. It has finally been submitted that from the medical and the other evidence it was clear that the appellants were, if at all, guilty for the offence under Section 307 of the IPC, as held by the trial court and not under Section 302 of the IPC, as held by the High Court, and for this additional reason the appeal was liable to succeed.

(3.) The learned State counsel has, however, controverted the stand taken by Mr. Sushil Kumar. It has been submitted that even assuming that there was some flaw in the recording of the first dying declaration by D.R. Arya, no serious objection could be raised with regard to the second dying declaration recorded by the Executive Magistrate. It has, further been submitted that the very promptness in the recording the FIR belied the argument that the eye witness had been brought to the scene long after the event. It has also been argued that the evidence of Dr. N.K. Gupta PW3 would indicate that the injuries suffered by Fateh Mohammad were the immediate and proximate cause of death and merely because there was a time lag between the injury and death would not make any difference in so far as culpability of the appellants for the murder was concerned.