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In a judgment of the Allahabad High Court it was decided that, the mere fact that in the dying declaration, an oath has been administered to the deceased before recording it , would not make the credibility of the dying declaration doubtful and would not nullify it. If an Executive Magistrate chooses a particular language for the dying declaration then the deceased cannot be blamed and nor the prosecution. This was decided in an appeal arising from an impugned judgment and order passed by the Additional Sessions Judge in which the appellants were convicted under Section 302/34 of Indian Penal Code and sentencing them to rigorous imprisonment for life.
In the instant case, the victim, Radhey Shyam Maheshwari was a practising lawyer and was also an active politician and the accused who was also deceased, Chob Singh was earlier a Block President of Congress Party. Due to his anti party actions he was expelled from the party and since then he was having inimical relation with the deceased. On 19th April 2004, the deceased was going to the house of Advocate, Rajendra Pal Gupta in relation to some political activities, the appellants, including Chob Singh and accused Dharm Pal stopped him on the way. Dharm Pal had iron rods with him. The other three accused persons were carrying country made pistols.The first blow was given by Dharm Pal with the said rod and then the deceased accused Chob Singh exhorted for killing the deceased. The other accomplices used the firearms.
The Court decided that, the Trial Court was justified in convicting the appellants. It also dismissed the appeal which said that the deceased was not in a position to give a dying declaration. Precedents were relied upon and it was said that, conviction can be based solely on the basis of dying declaration alone, but the same must be wholly reliable and trustworthy.
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