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4. Learned counsel for the appellants have assailed the impugned judgment mainly on the ground that conviction and sentence has been recorded, considering the fard-beyan as dying declaration after death of informant. As a matter of fact, the deceased after sustaining injuries was not in a position to speak at all. No certificate from the doctor, who attended him at Sadar Hospital, Sahibganj has been taken to the effect that the informant was mentally fit, fully conscious and capable of giving statement. The so called dying declaration does not find attestation from doctor J.Khan who had examined him and provided first aid. The fard-beyan has been marked Ext.1. Archana Devi (PW-1) happens to be the wife of deceased and she has stated in Para 8 of her cross-examination that her husband had given written report signed by him to police officer who arrived at Sadar hospital, Sahibganj. The prosecution has suppressed that written report and prepared a fard-beyan on their own. Therefore, the fard-beyan on the basis of which this case has been instituted, is not the statement of deceased Arun Kumar.

It is submitted that conviction can be recorded solely on the dying declaration if it is free from doubt and manipulation. The court has to be cautious while placing reliance on dying declaration for holding the accused guilty. In the case at hand, the police officer who had recorded fard-beyan had never consulted any doctor of Sadar hospital, Sahibganj before recording fard-beyan of injured Arun Kumar Das. Manoj Kumar Sinha(PW-7) had recorded the fard-beyan and he is investigating officer too. He says that after receiving information regarding occurrence he went to Sadar Hospital, Sahibganj and found the informant in the operation theater. Some people were also present in that operation theater. He did not feel it desirable to seek permission from the doctor before recording the fard-beyan. Doctor Bhagat Marandi (PW-8) has stated that on 16.8.2003 he was posted as CAS at Sadar Hospital, Sahibganj and at about 9:10 p.m. Arun Kumar Das in injured condition was brought to the hospital. At about 9:45 p.m. injured was referred to Bhagalpur Medical College and hospital. Surprisingly enough, instead of taking the injured to Bhagalpur, the family members had taken him to Silliguri for further treatment. In Para 3 he says that condition of Arun Kumar Das was precarious when he was referred to BMCH, Bhagalpur. In para 2 he says that he had seen the injured in the operation theater and public was not allowed to enter. At that point of time, no outsider was present in the operation theater. If the version of PW-8 is correct then statement of investigating officer PW-7 is incorrect that many persons were present in the operation theater in whose presence fard-beyan of Arun Kumar Das (deceased) was recorded. As a matter of fact, the investigating officer in order to justify his action obtained signatures of two attesting witnesses on the fard-beyan. The investigation done by PW-7 is also perfunctory. He did not collect blood stained soil from the place of occurrence and without any forensic examination he says that blood fallen on the ground was fresh and that is why he presumed it to be human blood. He did not make effort to recover the weapon used in the offence. The place of occurrence is situated within heart of the town. Vegetable market,shops and hotels were situated near the place of occurrence but, the investigating officer did not take pain to examine those persons. No independent witness has come forward to support the occurrence. Learned counsel has relied on the judgment reported in 2007 (15) SCC 465 Nallapati Sivaiah Vs. Sub Divisional Officer,Guntur A.P. By referring judgment cited above, it is submitted that all precautions are required to be taken before placing reliance on the dying declaration for holding the accused guilty. It is submitted that all attending circumstances should be considered before placing reliance on the dying declaration. Needless to mention, PW-1 wife of deceased did not admit that her husband had given statement to the police and it was reduced to writing rather, she says that her husband had given written report signed by him.

5. Learned A.P.P. has opposed the arguments and submitted that prosecution has proved its case beyond shadow of all reasonable doubts and the learned trial judge has rightly held the appellants guilty placing reliance on the dying declaration. According to statement of deceased, at about 9 p.m. he returned home from his shop and was just going to change his dress, at about 9:15 p.m. somebody called him. When he came out of the house, he saw the appellant Kanchan Sinha who requested him to accompany to enjoy smoking and further told to forget the previous incident. The deceased accompanied by Kanchan Sinha proceeded and after covering some distance he saw five to six persons standing near the garage of Israil and out of them he identified Bablu Yadav and Babloo Rajak. Before he understand the situation, he was dragged by the miscreants to nearby alley approaching to Priya Hotel and shots were fired on him by appellants Kanchan Sinha, Bablu Yadav and Babloo Rajak. He sustained injuries and raised alarm. Immediately, family members and the other witnesses reached there and took him to nearby Sadar Hospital, Sahibganj. He was taken to operation theater where his statement was recorded at about 9:30 p.m. By referring it, it is submitted that there was no opportunity for tutoring the deceased. Within no time, police also arrived at the hospital and recorded statement of Arun Kumar and that fard- beyan after death of Arun Kumar has been considered as dying declaration. At the time, fard-beyan was recorded it was not expected that Arun Kumar (deceased) would succumb to his injuries. As per statement of PW-8 Dr. Bhagwat Marandi, first aid was provided to injured and this witness has clearly stated that the informant was conscious and he was mentally fit to give statement. So far statement of PW-1 is concerned, she has admitted in her deposition that after Arun Kumar was taken to operation theater, she had left the hospital. Therefore, she does not know how the fard-beyan of Arun Kumar was recorded by the police. Two attesting witnesses namely Anant Kumar Das (PW-3)and Rajendra Prasad Yadav (PW-4) have supported the prosecution case and they have confirmed that fard-beyan of Arun Kumar was recorded in their presence and it was duly signed by Arun Kumar and also by them. The contention made by informant further find support from the statements of these two witnesses. The witnesses as well as investigating officer have stated that blood was fallen on the ground at the place of occurrence, only because blood stained soil was not seized the place of occurrence can not be disbelieved. There are witnesses who had immediately reached to the place of occurrence and removed the injured to the hospital and these witnesses are PW- 1,PW-2 and PW-6. It is not the case in which conviction has been recorded only on the dying declaration rather, the dying declaration find support from statement of other witnesses who had reached to the place of occurrence and removed the injured to hospital. The prosecution has well proved its case and there is no merit in these appeals and the same are liable to be dismissed.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.(State of U.P. v. Madan Mohan (1989)3 SCC 390) The judgment reported in the case of Paniben Vs. State of Gujrat (Supra) has also been referred in the judgment reported in (2010) 6 SCC 566 Puran Chand Vs. State of Haryana relied upon by the prosecution.

7. In view of the guidelines given by their lordships in various judgments, we have examined the facts and evidence available in the case at hand, we do agree with the submissions of learned A.P.P. that without having any opportunity of tutoring and without giving time to the author even to think or to implicate any person falsely, the fard-beyan of deceased Arun Kumar was recorded in the Sadar hospital Sahibganj. It is reiterated that the deceased was called from his house at about 9:15 p.m. he was taken by the appellants in the nearby alley and shots were fired upon him. After Arun Kumar sustained injuries he was immediately removed to Sadar Hospital, Sahibganj which is situated at stone through distance. The police station is also closure to the place of occurrence. Immediately, the police arrived at the hospital and recorded fard-beyan of Arun Kumar(deceased) at 9:30 p.m. So within fifteen minutes everything was over and therefore, statement of Arun Kumr recorded by the police within fifteen minute of the occurrence was certainly uninfluenced and untutored. He had had an opportunity to see the appellants and they were known to him from before. He was not expecting that due to previous incident he would be murdered and reference of previous incident find place in the fard-beyan and the statements of witnesses. The bullet pumped in the body came out by creating exit wound in his abdomen near umbilical area and that was the reason he thought that shots were fired in his abdomen. Since, exit wound appearing in the abdomen were larger in size nobody noticed that shots were fired from behind from gluteal region. It was only noticed by PW-9 Saibal Gupta who conducted post-mortem examination on the dead body of Arun Kumar. The fard-beyan of deceased find support from evidence of two attesting witnesses Anant Kumar Das (PW-3) and Rajendra Prasad Yadav (PW-4) and they have fully supported the prosecution case as narrated in the fard-beyan. The informant had been disclosing names of appellants from the very beginning after he sustained injuries, to the witnesses who reached to him and the statement was finally reduced to writing in the shape of fard-beyan at the hospital. Only because Dr. Khan who had attended the informant first, has not been examined, we can not deny statement of Dr. Bhagwat Marandi PW-8 who was also present at the hospital at the relevant point of time and he had also seen Arun Kumar when he was brought to the hospital in injured condition. This doctor has supported the fact that Arun Kumar was conscious and he was mentally capable of giving statement so recorded by the police officer. Because of the contradictions as to who were present at the operation theater and who were not, the fard beyan of Arun Kumar which was recorded in the hospital cannot be thrown away. Again we would like to observe that it is not a case in which the deceased was brought to hospital by unknown persons and his statement was recorded and that statement later considered as dying declaration rather, it is a case in which the informant was immediately rescued after he was shot at. It will not be out of place to mention that the deceased had disclosed names of the appellants to those witnesses and the statement so given before them was again given by the deceased before the police. The aforesaid witnesses in whose presence fard-beyan was recorded, the witnesses who helped Arun Kumar in removing hospital, have fully supported the prosecution case and nothing material contradiction has been taken from their mouth.