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J U D G M E N T G.N. RAY, J.

This appeal is directed against judgment dated 21.2.1984 passed by the Punjab and Haryana High Court in Criminal Appeal No. 691-DB of 1981. By the impugned judgment, the High Court has set aside the order of acquittal dated 27.05.1981 passed in favour of the appellant by the learned Additional Sessions Judge, Sirsa in Sessions Trial No. 59 of 1980 and has convicted the appellant Bhagirath, accused No. 1 in the Sessions Trial under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 20,000/- with a direction that if the fine was realised, it would be paid to the next heirs of the deceased as compensation.

Further investigation in the case was undertaken by PW

24. SI Ram Singh on 30.5.1980. The accused Om Prakash and Balwant were arrested at Bus Stand in village Goriwala at 1.30 P.M. on 9.6.1980 and on search, a country made pistol of .12 bore was recovered from Om Parkash (Ext. P-8) with a cartridge inside (Ext. P-9). Such pistol and cartridge were sealed after preparing rough sketch map of the pistol. A separate case under Arms Act was initiated against Om Prakash because he had no license for possessing the said pistol. The injured Nihal Singh was taken to Civil Hospital, Sirsa where he was examined in O.P.D. by Dr Garg and referred to bigger hospital at Rohtak. The injured was admitted and underwent operation by Dr. Verma, Registrar, Surgery (PW 1). The doctor had removed bullets (Ext. P1/1 to

About the time of reporting of the injured Nihal Singh at Sirsa Hospital, the High Court has pointed out that Dr. Garg of Sirsa hospital just superficially examined the injured Nihal Singh at O.P.D without admitting him and referred him to Rohtak Hospital. The time of reporting at Sirsa hospital mentioned by Dr. Garg not with reference to any record but on the basis of his memory when he deposed after a long lapse appears to be wrong. But Dr. Gulati has mentioned the time of referring Nihal Singh to Sirsa Hospital. The distance of Rohtak hospital was about 102 miles from Sirsa, Nihal Sihgh reached Rohtak Hospital at 11.45 PM. Such timing of reporting at Rohtak Hospital tallies with the timing of reporting at Rohtak Hospital tallies with the time recorded by Dr. Gulati at Dabwali hospital. If the injured had left for Rohtak at about 2.30 P.M. from Sirsa, he would have reached Rohtak Hospital long before 11.45 P.M. The High Court has held that the time of coming at Sirsa Hospital as stated by Dr. Garg is erroneous because of his money failing after lapse of time.

Mr. Ranjit has submitted that there is no evidence to suggest that Dr. Gulati had any reason to depose falsely or to be party to a false dying declaration concocted by PW.25 Dharamvir. Similarly, there is no evidence to indicate that PW 25 was inclined to fabricate a false dying declaration. There was, therefore, no occasion to discard the deposition of PW.17 Dr. Gulati and PW 25 Dharamvir, Mr. Ranjit has submitted that from the records of the Civil Hospital, Dabwali, it has been clearly demonstrated that the injured was in the said Hospital upto 5.00 P.M. After that he was taken to Sirsa Civil Hospital where he was examined in the O.P.D. Department without admitting him and no record has been maintained in the said hospital at Sirsa. Since he was referred to the Civil Hospital at Rohtak, the injured was immediately rushed to the said hospital where he was admitted at 11.45 P.M. Such timing of admission at Rohtak hospital appears from the records maintained in the civil hospital at Rohtak. The High Court in the aforesaid facts, has very rightly said that as Dr. Garg who had hurriedly examined the injured at Sirsa Hospital without admitting him in the said hospital, must have been confused about the time of deposing after a long lapse of time. On the contrary, the time of admission in the Rohtak Hospital clearly supports the prosecution case that the patient was in the Dabwali Civil Hospital upto 5.00 P.M. and after undertaken journey via Sirsa, the injured was admitted in the Civil Hospital at Rohtak at 11.45 P.M. Mr. Ranjit has also submitted that the learned Sessions Judge has also erred in holding that the dying declaration was not admissible in evidence because the death was not attributable to the injuries caused on Nihal Singh but he died of toxemia resulting from peritonitis. Mr. Ranjit has submitted that it has come out from the medical evidence and also from the post mortem report that Nihal Singh had suffered 10 punctured wounds for which he was ultimately referred to a bigger hospital at Rohtak where the deceased had undergone an operation but within two days he succumbed to such injuries. It is quite apparent from the post-mortem report and also from the deposition of the doctor that the injuries suffered by the deceased were serious and were likely to cause death in the ordinary course. Simply because attempt to save his life had been taken by performing operation on the injured but such attempt ultimately failed because he developed toxemia resulting from peritonitis on account of the injuries suffered by him, it cannot be held that the death is not due to the injuries sustained by the deceased. The dying declaration is, therefore, admissible in evidence and the rejection of the same on the score of being not admissible is illegal. Mr. Ranjit has also submitted that if the view taken by the trial court in passing the order of acquittal is not in conformity with the evidence adduced in the case and such view does not appear to be reasonable view which can be taken in the facts of the case, interference with the order of acquittal after appreciating evidence on record is fully justified. The High Court has analysed in detail as to how the learned Sessions Judge had gone wrong and has taken the view against the weight of the evidence. Hence, interference by the High Court in exercise of the power of the court of appeal should not be interfered and this appeal should be dismissed.