- (1.)There are two appellants in this appeal. They are original accused 1 and 3. They along with another accused Balam Venkateswara Rao, A-2 were tried for the offence punishable under Section 302 read with Section 34 Indian Penal Code. The trial court acquitted A-2 and convicted A-1 and A-3 and their convictions are confirmed by the High court. Hence this appeal.
(2.)The accusation against the accused is that on 15/3/1981 at about 10. 00 a. m. they attacked the deceased Dharma Raju with sharp-edged weapons and inflicted multiple injuries as a result of which he died. The prosecution examined PWs 1,2, 4, 5, 7 and 8 as eyewitnesses and also relied on the two dying declarations Ex. P-16 and Ex. P-1 recorded by the Sub-Inspector and the judicial Magistrate respectively. Out of the direct witnesses, Public Witness 8 turned hostile and the courts below were not prepared to place much reliance on the evidence of the other witnesses because of the improbabilities. The courts below, particularly, the High court relied on the dying declaration Ex. P-1recorded by the Judicial Magistrate and also on Ex. P-16, but having regard to the fact that A-2's name was not mentioned by the deceased in Ex. P-1, he was given the benefit of doubt. So far as the appellants are concerned, the High court was satisfied that both the dying declarations are reliable, particularly. Ex. P-1 recorded by the Judicial Magistrate and confirmed their convictions.
(3.)Shri K. Rajendra Choudhary, the learned counsel for the appellants submits that the dying declaration has not been properly recorded and there is any amount of doubt about the condition of the deceased and the fact that the magistrate failed to question him specifically about his mental condition to ascertain whether he was in a fit condition to make the statement, is fatal to the dying declaration. In this context, he relied on a judgment of this court in K. Ramachandra Reddy v. Public Prosecutor.