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Second Written (Supplementary) Dying Declaration.

16. In this second written dying declaration, which is at Exh.55, initially deceased Gautam has referred to the fact that he was working for Jigya @ Mustafa for cutting trees since last 15 years and since two years, the three accused persons are also working for Jigya. About 1½ years back, there had been quarrel between him and Shaikh Maheboob, when he had given stick blow to Shaikh Maheboob. Since apl422.11 about six days before 13.12.2010 the three accused and (deceased) Gautam had been working in Singnapur for cutting trees. He then referred to his wife and daughter already being admitted in the hospital and how earlier in the day he had gone to see them.

It is mentioned that additional statement recorded was correctly recorded and had been read over to him.

17. Thus, first written dying declaration Exh.43 and the second written dying declaration Exh.55 both are specifically referring to the injuries caused by accused No.1 Shaikh Maheboob and involvement of accused Nos. 2 and 3 also. Looking to the injuries Gautam had and which have been referred to by P.W.4 Dr. Narendra, Gautam may apl422.11 have indeed been in pain when his first dying declaration Exh.43 was recorded. Second dying declaration Exh.55 is more explanatory. In Exh.43 also Gautam had stated that accused Salim and Lalu had joined for beating, and that accused Maheboob had caused injuries by axe. In Exh.55 Gautam gave details as to how beating (referred in Exh.43) was done by accused Nos. 2 and 3. Gautam (Deceased) also explained that at the time of earlier statement, he was in pains and so could not give details.

19. It has been argued by learned counsel for the accused persons that there was no necessity for recording the second dying declaration.

Learned counsel placed reliance on the case of "Shaikh Bakshn & Ors vs. State of Maharashtra" 2007 (2) Bom. C.R. (Cri.) 332 (2007) 11 SCC 269. Perusal of facts of the said case, shows that in that matter, dying declaration had not been read over and explained and it was not on record as to what was the necessity to record second dying declaration. In the said case, deceased had stated that incident occurred in the bedroom but no marks of burning were seen in the bedroom and they were noticed in the kitchen.

Thereafter, he went back on foot and contacted Police Patil, who in turn came to the spot and then phoned the Police. The injured could reach the hospital only at about 1.10 a.m. can be seen from the injury certificate Exh.30. Thus, ground realities show pitiable conditions were there for (deceased) Gautam when he was injured.

21. The sense of time of P.W.1 Shantabai, who is labour and deceased Gautam, who was also labour and working as wood cutter, may not be said to be very good. Deceased was illiterate who put his thumb impression on his dying declarations. Thus, the time mentioned by the deceased Gautam in first dying declaration (Exh.43) that incident took place at about 6.00 p.m. and the second dying declaration (Exh.55) that it took place at about 7.00 - 7.30 p.m. need not be given much weightage. Incident took place in the evening of 13.12.2010 at the Akhada.