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TMI Blog2010 (12) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Ashfaq recognized them in the light of the torch that he was carrying. Apprehending danger, Mohd. Ashfaq ran towards his house which was close by, raising an alarm. The accused chased him shouting at each other that he should be done away with on which Abrar, the appellant herein, fired at him from the rear. The alarm raised by the victim attracted Muzur PW-6, Durga Ram PW-7 and one Bissu to the place of incident and they too saw the shot being fired. As per the prosecution story, the attack on the victim was on account of old enmity and litigation between him and the accused Mukhtar and Abrar. Mohd. Ashfaq was immediately rushed to the District Hospital, Ghazipur where he was attended to by Dr. S.N.Pandey PW-8 who was then on emergency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l injuries. The accused were, accordingly, arrested and ultimately brought to trial for an offence punishable under Section 302/34 of the IPC. 2. The prosecution in support of its case, relied primarily on the evidence of Dr. A.K. Dwivedi PW-1, who had conducted the post-mortem examination, Executive Magistrate-cum- Tahsildar Vir Bahadur Prasad PW-2, Ram Singh, Advocate, PW-5, Mujur PW-6 and Durga Ram PW-7, the two eye witnesses named in the FIR, (but who did not support the prosecution), Dr. S.N.Pandey PW-8, the doctor of the District Hospital who had certified as to the mental condition of the victim at the time of the recording of the dying declaration by the Tahsildar, and the investigating officer Sub-Inspector Ram Hit Shukla PW-9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sman had also been carrying country made pistol, they would in normal circumstances, have used them as well. The Court also observed that there was no bar in relying only on a part of a dying declaration as the only test was the test of reliability. The Court observed that the third dying declaration had been recorded by the Tahsildar after he had taken a certificate from the doctor that Mohd. Ashfaq was fit to make a statement. The Court also held that the statement given in the dying declarations that the deceased was carrying a torch by which he had been able to identify the accused was to be accepted, as he was an educated man and would ordinarily be expected to carry a torch. It was also observed that as the incident had happened in G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was in any case absolutely no reason to discard the dying declaration recorded by the Tahsildar at 11.50 p.m. after he had taken a certificate from the doctor that the victim's fitness to make a statement. 6. We have heard the learned counsel for the parties very carefully. It has rightly been pointed out by the learned counsel for the appellant that the entire prosecution story would depend on the dying declarations. It must be borne in mind that all three dying declarations, the first one which formed the basis of the FIR, the second recorded by the ASI as a statement under Section 161 of the Cr.P.C. and a third recorded by the Tahsildar are unanimous as all the accused find mention therein. The High Court, has by way of abundant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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