JUDGMENT
M.N. Rao, J.
1. The appellants herein were convicted by the learned Additional Sessions Judge, Warangal, in S.C. No. 219 of 1990 for the offence punishable under S. 302, I.P.C. for causing the death of one Thota Ramulu by intentionally stabbing and axing him on 5-3-1990 at about 7.30 p.m. at Ashok Nagar village on the road and each of them was sentenced to R.I. for life and fine of R. 2,000/- each and in default to R.I. for six months.
2. A-1 is the son of A-2. PW-1, the wife of the deceased, is the niece of A-2. A-1 is a resident of Miryalaguda village. A-2 and the material prosecution witnesses are the residents of Ashok Nagar. The case of the prosecution is that A-2 had deposited Rs. 6,000/- with PW-1, the wife of the deceased, and the latter had spent Rs. 2,300/- out of that amount without the knowledge of his wife and so disputes had arisen about non-payment of the balance amount and a panchayat held in that regard did not result in amicable settlement. When A-2, after some time, demanded repayment of the amount, PW-1 could repay only Rs. 3,700/-. When the matter was referred to elders for panchayat, they advised A-2 to receive Rs. 1,800/- but A-2 was not satisfied with the decision. A few days later, the wife of A-2 went to the house of one Polu Hanumanthu (PW-3) and gave him fish curry in the absence of his wife. The deceased wanted to insult A-2 and inform the said fact to the neighbours. Therefore, A-1 and A-2 bore grudge against the deceased. The actual incident happened on 5-3-1990 at about 7.30 p.m. When the deceased was narrating Polu Gopal (PW-2) about the wife of A-2 giving fish curry to PW-3, A-1 and A-2 overhead it, went there and picked up quarrel with the deceased and attacked him with knife (MO-2) and pick-axe (MO-1). A-1 stabbed the deceased on the abdomen, chest, fore-arm and wrist. A-2 dealt a blow with the pick-axe on the left knee of the deceased. Polu Gopal (PW-2) and the wife of the deceased (PW-1) raised hue and cry resulting in Suraiah, Mangali Yakaiah and Sreeramulu reaching the place and they found the deceased with bleeding injuries and shifted him to the bus stand. In the meanwhile, the Sub-Inspector of Police came there and, on a complaint, Ex. P-1, given by PW-1, the wife of the deceased, made on endorsement and sent the same to the Station House Officer to register the crime and sent the injured to hospital in his jeep. The Munsif Magistrate, Narasampet, (PW-6) recorded the dying declaration of the injured at the narasampet hospital. Later, the injured was shifted to M.G.M. Hospital where he succubmed to injuries on 7-3-1990. Thereafter, the section of law was altered from S. 307, I.P.C. to S. 302, I.P.C.
3. After completion of the investigation, charge-sheet was laid. The prosecution examined, in all, ten witness, of whom PW-8 is the doctor who conducted the autopsy on the body of the deceased. PW-10 is the investigating officer. PW-1 is the wife of the deceased. Polu Gopal (PW-2) is the son-in-law of the deceased. PW-6 is the Munsif Magistrate who recorded the dying declaration. Eleven documents, Exs. P-1 to P-11, were marked. No witnesses were examined on behalf of the accused. One document, Ex. D-1, which is zerox copy of the dying declaration, was brought on record. Before the trial Court, all the material witnesses including PW-1, the wife of the deceased, did not support the prosecution and they were, therefore, declared hostile and cross-examined. The trial Judge basing on the dying declaration, Ex. P-3, recorded by the Munsif Magistrate (PW-6) convicted both the accused as stated supra. Aggrieved by that, the present appeal was preferred.
4. Sri C. Padmanabha Reddy, learned counsel for the appellants, relying upon the decision of the Supreme Court in K. R. Reddy v. Public Prosecutor, , contends that the dying declaration, Ex. P-3, should not be the foundation for conviction since it was affilicted with several legal infirmities, that PW 6, the Munsif Magistrate, did not ask the injured Thota Ramulu at the hospital at the time of recording the dying declaration whether he was in a fit mental condition to make the statement, that the doctor, who endorsed on Ex. P-3 about the mental fitness of the injured to make the statement, was not examined and that as the incident took place at night and as the dying declaration mentions that the victim was stabbed but one of the two weapons being only on axe. M.O.-1, the version of the deceased as stated in EX. P-3 should be disbelieved.
5. The legal position as to the degree of reliance that could be placed on a dying declaration for recording the conviction is fairly settled. In an unreported judgment in Criminal Appeal No. 225 of 1967, dated 12-11-1968 (Sucha Singh v. State of U.P.), the Supreme Court observed :
“It would be very unsafe to record a conviction for the offence of murder, relying solely upon a statement recorded as a dying declaration which is not shown to be made by a person in a fit state of mind.”
Extracting the aforesaid statement in a subsequent decision – Lallubhai v. State of Gujarat, , Palekar, J. speaking for the two Judge Bench observed (Para 10) :
“There can be no doubt that when a dying declaration is recorded the person who records the statement must be satisfied that the person who makes the statement is consciously making the statement understanding the implications of the words he uses. The expression ‘fit state of mind’ used in the case referred to above means no more than that”.
The above statement of law was (sic) K. R. Reddy v. Public Prosecutor (1976 Cri LJ 1548) (SC) (supra). It is, therefore, incumbent on the part of the trial Court to examine carefully in a case where all the material prosecution witnesses turned hostile, whether the dying declaration was made by the victim consciously and in a fit state of mind. The injured person was conscious while making the statement and in a position to understand the implications of the words he uses. In other words whether he was in a fit state of mind. The dying declaration, in this case, was recorded by PW 6, the Munsif Magistrate Narasampet. In his evidence, he stated that no relatives were present when the dying declaration, Ex. P-3, was recorded from the injured, Thota Ramulu, who later on succumbed to injuries. He also stated that the Medical Officer was present when the statement was recorded and that the injured person was ‘conscious’ and the statement was made ‘voluntarily’. He denied the suggestion in the cross-examination that the statement was not recorded in the exact words used by the patient. He asserted that he asked the doctor whether the patient was able to make the statement but admitted that he did not obtain the endorsement of the doctor before the commencement of recording the statement, EX. P-3. The statement, EX. P-3, is in the form of questions and answers. PW 6 elicited from the injured person his name, father’s name, village and the place where he was viz. hospital. After disclosing his identity, PW 6 asked the injured person to narrate as to what happened. The injured replied :
“They stabbed me with knives.”
To the question as to who stabbed the injured, the injured replied :
“Mandala Bhadraiah (A-1) and Mandala Veeraiah (A-2) both stabbed me”.
The reason for stabbing, as stated by the injured, was :
“There was a minor dispute. There were exchange of words. What should I tell you sir, it arose without any reason. They are abusing us in filthy language. When I asked as to why they are abusing us, they stabbed me.”
To another question as to what happened further, the injured replied :
“They stabbed in the abdomen, in the plank, on the hands and all over the body indiscriminately.”
The name of his wife and the person, who were present at the time when the incident happened, were also stated by the deceased. Finally the injured stated :
“The altercation took place on the read near my house. they trespassed into my house and beat me.”
6. From Ex. P-3, it is clear that no question was put by the Magistrate, PW 6, as to whether the injured was in a fit condition to make the statement. Sri Padmanabha Reddy contends that failure to put such a question is fatal to the prosecution case. We do not think so. The Magistrate was fully satisfied as to the state of mind of the injured person. The satisfaction of the Magistrate was based not only upon the answers given by the injured but also on the certificate issued by the doctor in the form of an endorsement at the foot of Ex. P-3 which reads :
“Certified that the patient Thota Ramulu is conscious and capable of making statement.”
When the Magistrate was satisfied about the state of mind of the injured to make the statement as to how the injuries came to be inflicted upon him and when he made an endorsement on the dying declaration :
“During the time of recording the statement the patient was fully conscious and I am satisfied that he made the statement voluntarily in conscious condition. Doctor also certified the condition of the patient before and after the proceedings.”
We are of the view that failure on the part of the Magistrate to put a formal direct question as to the state of mind of the patient cannot be a circumstance for doubting either the mental condition of the injured or the contents of the declaration, Ex. P-3, and that as the endorsement of the doctor, who was present at the time of recording the declaration, EX. P-3, was obstained regarding the state of mind of the injured, the failure on the part of the prosecution to examine the doctor is not fatal to its case. K. R. Reddy v. Public Prosecutor (1976 Cri LJ 1548) (SC) (supra), on which reliance was placed by Sri Padmanabha Reddy in support or his contention that it was the duty of the Magistrate to put a direct formal question as to the state of mind to the injured, has no application to the facts of the present case. It was found by the Supreme Court in that case that the deceased had opportunity at three places to make the statement as to the circumstances to disclose the names of the assailants but he did not do so. Commenting on the conduct of the deceased, the Supreme Court observed (at p. 1553 of Cri LJ) :
“This conduct of the decased can be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to anybody or that even though he was conscious he did not disclose the occurrence to anybody because under the stress and strain of the assault, which took place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assailants. No third inference can be spelt out from the conduct of the deceased in not disclosing the names of the assailants on these three occasions.”
In that fact situation, the evidence of the Magistrate, who recorded the dying declaration, was discussed. The Magistrate, in his evidence in that case, had admitted that the injured was suffering from pain and he was not in a position to sign and so his thumb impression was taken. There was also a further admission by the Magistrate that the injured as taking time to answer the incident and that the injured was very much suffering with pain. The Supreme Court, therefore, observed (at p. 1554 of Cri LJ) :
“In spite of these facts the Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement …… the omission of the Judicial Magistrate who knew the law well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement.”
7. The facts in the case on hand being totally different, the aforesaid statement of law cannot be made applicable. In our comprehension, it is not necessary in every case that the Magistrate should put a formal direct question to the injured at the time of making the dying declaration as to the latter’s state of mind. But prudence required that the Magistrate should take such a precaution. However, in cases where such a question was not put, no inference can be drawn that the dying declaration is bereft of any weight and that it should not form the basis for conviction. In Padmaben Shamalbhai Patel v. State if Gujarat, , a three Judge Bench of the Supreme Court held (at pp. 468 & 469 of AIR SCW) :
“In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence – neither extra strong nor weak – and can be acted upon without corroboration if it is found to be otherwise true and reliable.”
In Ganpat Mahadeo Mane v. State of Maharashtra, , his Lordship Jayachandra Reddy, j., speaking for the Division Bench, pertinently observed :
“The form by itself is not important. The statement is clear. Because of the mere fact that the entire thing is not recorded by way of separate questions and answers, the value of the dying declaration is not detracted.”
We are, therefore, of the considered opinion that failure on the part of the Magistrate in the case on hand to put a formal direct question as to the state mind of the deceased, Thota Ramulu is not circumstance to hold that the nature of the dying declaration is detracted. What the deceased stated in Ex. P-3 receives corroboration from medical evidence, Ex. P-8 postmortem report. The external injuries, as found by PW-8, the doctor, who conducted the autopsy, are as follows :-
(1) Sutured oblique wound of 7 cms. long with 5 black sutures present over the right costal arch-discharges are oozing out.
(2) One vertical middle 16 cms. long sutured wound, discharging fluids, with 13 black cotton stitches present extending from ensiform cartilage up to the naval.
(3) One penetrated wound present of 0.75 x 0.2 cms. through which a rubber tube is seen coming out, on right side abdomen 12 cms. above the right iliac crest.
(4) One sutured vertical 3 cms. long, with 2 stitches present 4 cms. below the left collar bone, muscle and rib cage deep on opening.
(5) Horizontal scratch of 4 cm. x 0.1 cms. present 5 cms. to left of mind abdominal line on front of abdomen.
(6) Surgical repaired wound, 3 cms., long oblique with one suture present 22 cms. above left iliac crest entered the 6th and 7th intercostal space, entered ltoracice lage (sic), injured posterior surfice of lower lobe, pleunal space had 300 ml. of blood.
(7) 4 cms. long sutured oblique wound with 3 sutures present 2 cms, below injury (6) entered thoracic cage, liver substance.
(8) Vertical sutured wound of 5.5 cms. long having 3 stiches present 4 cms. below the injury (7) above, entered abdominal cavity.
(9) Olique sutured wound of flexor, inner side of left forearem ulnar side near wrist-measuring 6 cms. long had five sutures.
(10) Vertical sutured perforating injury 4 cm. long with three sutures present 10 cms. below acromion process, on the external side of left arm.
(11) The injury existed through a sutured vertical wound of 3 cms. long sutured by two stiches present 7 cms. internal injury to ten above.
(12) Horizontal scratch present 12 cms. below the left rapazoidfold 7 cms. x 0.1 cms.
(13) Abrasion of 1 cm. x 0.5 present in between two gluteal dimples – fresh and red.
(14) Stab wound of 2 x 0.5 cm. joint space deep on inner side of right knee cap.
The following are the internal injuries :
(1) On opening the adbominal cavity the stomach is repaired at two places, at transverse memsololon, mysentivey was repaired, peritoneal cavity cotain 700 ml. of yelloish turbid fluid, distended intestinal loops, glued lustre is roughened, and repaired.
(2) The left side lower lobe of lung the disphroagm, the left lobe of liver penetrated at two places 3 cms. x 2.5 cms.
(3) The left periorenal and kidney is pierced through at the upper outer to lower down position 1.5 cms. x 0.5 cms. with sub capsular haematonia of 2.5 cms. depth.
Comment : (A) Injuries in external injuries numbers 7, 8 corresponds with 1, 2, 3 of internal injuries.
(B) The repairs are of recent surgical operative procedures intra abdominal.
It is mentioned in Ex. P-8 that the external injuries 7 and 8 correspond with internal injuries 1, 2 and 3. Sri Padmanabha Reddy says that when the injuries of such serious nature were sustained by the decesed, he could not have been in a fit condition to make a statement and in such a situation it was incumbent upon the prosecution to examine the doctor, who was present when the statement, Ex. P-3, was recorded. We are not inclined to agree. The doctor had already certified about the mental condition of the injured. The Magistrate was satisfied about the mental condition of the injured and he deposed as a witness in the trail Court. When PW 8, the doctor, was in the witness box, no questions were asked in the cross-examination as to whether the injuries, as mentioned in Ex. P-8, had the effect of disabling the injured from stating as to how the injuries came to be inflicted. The non-examination of the doctor, who was present at the time when Ex. P-3 was recorded, in our considered view, does not, therefore, weaken the case in any manner. M.O.-1 is the pick axe and M.O.-2 is a knife. In Ex. P-3, the injured stated that A-1 stabbed him with knife and A-2 stabbed him with pick axe. The comment of the learned counsel is that it was not possible to inflict stab injuries with a weapon like M.O.-1 – Pickaxe. We do not find any justifiable ground to disbelieve the contents of Ex. P-3 on this score. M.O.-1 being a pick axe, infliction of stab injuries with such a weapon cannot be ruled out. What is more important is that when PW 8, who conducted the authopsy, was in witness box, no questions were put to him in the cross-examination, as to whether it would be possible to inflict injuries found in Ex. P-8 with a weapon like M.O.-1. We do not, therefore, find any suspicious circumstances to doubt the contents of Ex. P-3.
8. As the accused and the deceased are living in the same area and being related to each other, it would not at all be difficult for the deceased to identify his assailants. It was only 7.30 p.m. in the evening. We do not, therefore, entertain any doubts on this aspect.
9. We agree with the conviction and sentence awarded by the learned Sessions Judge to the appellants. The appeal, therefore, fails and is accordingly dismissed.
10. Appeal dismissed.