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The appellant and four other accused were committed to Sessions trial No. 59 of 1980 for offence under Section 302 read with Section 34 IPC and section 120 B IPC. The prosecution case in short was that on 29.05.1980 in Mandi Dabwai. The accused Bhagirath was individually charged for offence under Section 302 IPC for causing the murder of Nihal Singh in the area Mandi Dabwali. According to prosecution case, at about 2.50 P.M. on 29.05.1980 PW 25, Head Constable Dharambir of police station Dabwali received a telephone message for Dr. S. Gulati (PW 17) of Civil Hospital. Dabwali that Nihal Singh was admitted in the said hospital with gunshot injuries. Such message was entered in Daily Diary Roznamacha being Entry No. 19 (Ex. PJJ). Dharam Singh, H.C. of P.S. Dabwali (PW25) with constable Vijay Kumar (PW10) came to the Civil Hospital at 3.10 P.M. and moved an application (Ex.PZ) for obtaining fitness certificate of the said injured and the doctor gave certificate that the injured was in a position to make statement (Ext. PA/1). The said Dharam Singh also requisitioned the service of S.D.J.M. Dabwali and S.D.M. (C) for recording dying declaration of the injured Nihal Singh, Dharam Singh recorded the statement of Nihal Singh (Ex PAA). Nihal Singh in his statement stated that there was enmity between him and Chhotu. Chhotu and the accused Bhagirath were on a look out for Nihal Singh to get him murdered. On the date of incident at about 2 P.M., Nihal Singh was going to Dabwali Mandi after being free form Court and Sohan Lal (PW19) and Manswarup were ahead of him and PW 20 Kishan Lal was following him When Nihal Singh reached in front of the shop of Lekh Ram, Tobacco dealer then the accused Bhagirath being accompanied by another person, whose description was given by Nihal Singh in his statement, was standing there. When Nihal Singh crossed Bhagirath, he fired a shot from a country made pistol at his back which hit him and when Nihal Singh turned around and raised a lalkara, Bhagirath and the person accompanying him had run away. Kisnan Lal (PW 20) Sohan Lal (PW 19) and man Swarup came running and Man Swarup and Kishnan Lal brought Nihal Singh to the civil hospital. After the statement was recorded by Dharambir, the same was read over to Nihal Singh and having admitted that the Statement was correctly recorded, Nihal Singh signed the said statement in presence of Dr. Gulati (PW 17). The said doctor also attested the said statement. Such statement was sent to the police station with the endorsement of the said Dharmbir and on the basis of such statement, FIR (Ex. PAA/2) was recorded by PW 9 Gulzari Lal, a head constable. Prior to recording of the said statement by Dharam Singh, Dr. Gulati had prepared a ruga (Ex. Py) AT 3.10 P.M. and medico-legal report (Ext. PX) was also prepared at 4.00 P.M. However, the constable Vijay Kumar returned to the hospital at 4.45 P.M. with a report (Ex. PKK/1) that both S.D.J.M. and S.D.M. (C) were away.

It may be stated that the learned Sessions Judge has also entertained doubt about the genuineness of the said dying declaration because such dying declaration was recorded at 4 P.M. at Dabwali Civil Hospital at 5 P.M. by Dr. Gulati but PW. 4 Dr. Garg, the Medical Officer of Rohtak, Civil Hospital Sirsa has deposed that the said injured came to the hospital at 2.15 P.M. to 3 P.M. which was 35 miles away from Dabwali Civil Hospital, the dying declaration could not have been recorded at 4 P.M. at Dabwali Hospital.

Mr. Malik has further contended that both PW 19 and P.W. 20 and partisan witnesses. It has also come out in the evidence that there are two factions in the village one being led by the deceased Nihal Singh and the other being led by the accused Chhotu. PWs. 19 and 20 were admittedly not the residents of Dabwali and normally their presence at the place of occurrence s not excepted. Although PW. 20 Krishanlal tried to explain his presence at Dabwali by stating that he was on long leave and at the relevant time was living in a rented house at Dabwali but the said witness miserably failed to satisfy the Court as to whether he was really a tenant by making payment of rents to the landlord, So far as P.W.19 Sohanlal is concerned, although the said Sohanlal deposed that came to Dabwali bazaar for making some purchases but the said witness also failed to state what articles were purchased and of what quantity. Considering the fact that the said witnesses were partisan witnesses and they were inimical to the accused party, the learned Sessions Judge has not rightly placed any reliance on the depositions of PWs. 19 and 20.

After giving our careful consideration to the facts and circumstances of the case and the judgments passed by the learned Sessions Judge and also by the High Court and on consideration of the materials on record and evidences through which we have been taken by the learned counsel for the parties, it appears to us that the dying declaration which was recorded by the Head Constable PW 25 Dharamvir is fully convincing and can be safely relied upon. The Head Constable, on getting message from Dr. Gulati that a person with gun shot injuries had been admitted in the Civil Hospital at Dabwali, immediately rushed to the said place and after making entry in the police register and after obtaining certificate form Dr. Gulati about the condition of the injured, took statement from the injured Nihal Singh for the purpose of registering a case. At the time of recording such statement, the said Head Constable had no intention to record the statement as dying declaration. On the contrary, he genuinely made an attempt to get dying declaration recorded by a Magistrate and for the said purpose he requisitioned the services of both S.D.J.M. and S.D.M. (C). Unfortunately, both the said Magistrates were not available in their respective house. Such facts have been clearly proved with reference to the records and also from the depositions given by PW 10 an P.W.25. Simply because Dr. Gulati did not listen to the statement made by the injured Nihal Singh to Dharamvir, it cannot be held that the statement recorded by Dharamvir was unfounded and no reliance should be placed on the same. Dr. Gulati has attested the statement recorded by Dharamvir wherein it was specifically stated that the statement was read over to the patient who had admitted that same to be correct. It has been rightly indicated by the High Court that even in answer to query made to Dr. Gulati as to whether he was satisfied about the correctness of the statement recorded by the Head Constable Dharamvir, the said Dr. Gulati had recorded that he had satisfied himself about the correctness of the statement recorded by Dharamvir by putting questions to that effect to the injured Nihal Singh. It may also be indicated here that although there was inimical relation between the accused Chhotu and his followers and the deceased Nihal Singh, Nihal Singh did not implicate Chhotu or the other accused Kalawati but he had only implicated the appellant Bhagirath in his dying declaration by indicating that it was Bhagirath who was then accompanied by an unidentified person, had fired a shot on him from a pistol. In our view, the High Court has rightly held that Dr. Garg had no occasion to examine the injured Nihal Singh at 2.00 to 2.15 P.M. on the said date because Nihal Singh was in the Civil Hospital at Dabwali upto 5.00 P.M. The statement as to time of examination of Nihal Singh was made by Dr. Garg from his memory after a long lapse of time because no record had been kept in the Sirsa about the time of examination by Dr. Garg. The prosecution case that Nihal Singh made statement to Dharamvir at Dabwali Civil Hospital and the injured Nihal Singh was in the said hospital upto 5.00 P.M. has been clearly established from the deposition of Dr. Gulati and of the said Dharamvir and also from the records of Dabwali Civil Hospital. In our view, that trial court has also gone wrong in proceeding on an erroneous view that the dying declaration was not admissible in evidence because the death was not due to injuries sustained by the injured in the hands of the accused Bhagirath. Although ultimately toxemia had developed because of peritonitis, all such complications are directly attributable to the injuries suffered by the deceased Nihal Singh by the gun shot in the hands of the accused Bhagirath.