RAMESH MADHAV BAPAT, J. ( 1 ) THE State of Andhra Pradesh has preferred this present Criminal Appeal no. 669 of 1998 questioning the acquittal recorded against the respondents accused nos. l and 3 in SC No. 246 of 1996 by the ii Additional Sessions Judge, Kurnool, by his judgment dated 5-3-1998. Initially accused Nos. 1 to 3 were tried for the offences under Section 302 read with Section 34 ipc. ( 2 ) THE prosecution story can be briefly narrated as follows: that accused No. 3 is the uncle of accused No. 1 and accused No. 2 is the close follower and associate of accused No. 1 and accused No. 3. They were residing in bogguline in Nandyal town. The deceased p, Bhaskar Rao was also residing in bogguline, Nandyal. One Kamalamma, wife of Anthoni was also residing in the same street. A1 developed illicit intimacy with her. The deceased P. Bhaskar Rao chastised accused No. l for his illicit intimacy with kamalamma. Accused No. l and Anthoni, the husband of Kamalamma were quarreling with each other in drunken state. The deceased P. Bhaskar Rao made Anthoni and Kamalamma vacated their house. Therefore, accused No. l bore grudge against the deceased P. Bhaskar Rao. It is further the case of the prosecution that on 24-2-1996 at about 7. 30 p. m. , the deceased p. Bhaskar Rao, his wife P. Ratnakumari (PW1) and his sister B. Krupavathi (PW2) were present at the bunk of one E. Sunkamma (PW3 ). At that time, Al to A3 with common intention to kill P. Bhaskar Rao came there armed with daggers. There was electric light near the bunk. A1 to A3 attacked P. Bhaskar Rao with daggers. A1 to A3 also threw chilli powder in the eyes of P. Bhaskar Rao and thereafter assaulted P. Bhaskar Rao with daggers indiscriminately on his left shoulder, chest, ribs, left elbow, left wrist, right thigh, left thigh and left leg. On hearing the cries one b. Babu (PW4) rushed to the spot and also witnessed the occurrence. The deceased p. Bhaskar Rao sustained multiple injuries and fell down on the ground. Al to A3 ran away after stabbing P. Bhaskar Rao. The elder brother of the deceased P. Paul (PW5) who came there took the deceased who was lying with bleeding injuries, to the government Hospital, Nandyal. The deceased p. Bhaskar Rao sustained multiple injuries and fell down on the ground. Al to A3 ran away after stabbing P. Bhaskar Rao. The elder brother of the deceased P. Paul (PW5) who came there took the deceased who was lying with bleeding injuries, to the government Hospital, Nandyal. The SI ofpolice recorded the statement ofthe deceased at about 9. 45 p. m. The Additional district Munsif, Nandyal, recorded the dying declaration of the deceased at about 10. 45 p. m. Thereafter, the deceased was taken to Government General Hospital, kurnool, for treatment. On the way to hospital the deceased P. Bhaskar Rao succumbed to injuries and thereafter section of law in the FIR was altered to one under section 302 IPC from Sections 307 and 324 ipc. The SI of Police, Nandyal, III Town ps, investigated the case. The Inspector of police, Nandyal Town Circle, arrested the accused and filed the charge-sheet. ( 3 ) IT appears from record that in order to connect the accused with the crime the prosecution led the evidence of PWs. 1 to 15 and got marked Exs. Pl and P22. Material objects MOs. 1 to 11 were also produced in the Court. ( 4 ) AFTER hearing the prosecution case and the defence of the accused, the learned Sessions Judge disbelieved the prosecution case and acquitted the accused. Hence, the State of Andhra Pradesh has filed this present appeal. ( 5 ) LEARNED Public Prosecutor appearing on behalf of the State submitted at the Bar that the judgment of the trial court acquitting the accused is erroneous as there is the evidence of three eye-witnesses and also the evidence in the form of dying declaration which corroborates with the first information given by the deceased himself to SI of Police and this evidence is sufficient to hold that all the accused had shared common intention to commit the murder of the deceased. ( 6 ) WE proceed to scrutinise the evidence as brought on record so as to ascertain whether the prosecution has been able to connect the accused with the crime. ( 7 ) IN order to establish the fact that the deceased died a homicidal death, the prosecution led the evidence of PW6 and pw11 who were alleged to have present at the time of inquest panchanama. The inquest panchanama was prepared by pw14. ( 7 ) IN order to establish the fact that the deceased died a homicidal death, the prosecution led the evidence of PW6 and pw11 who were alleged to have present at the time of inquest panchanama. The inquest panchanama was prepared by pw14. The inquest report is filed on record as Ex. P6. ( 8 ) AS stated earlier, the brother of the deceased PW5 had carried the injured person (deceased) to the Government hospital for treatment at Nandyal. Preliminary treatment was given at the hospital at nandyal and thereafter on the advice of the Doctor the deceased was removed to the Government Hospital at Kurnool. Unfortunately, the deceased died on the way. After the death of the deceased the section of law was altered from Section 307 ipc to Section 302 IPC. After conducting inquest Panchanama the Investigating Officer made arrangements to send the dead body to PW10 who happened to be the Professor, forensic Medicine attached to Medical college at Kumool. He conducted autopsy over the dead body on receipt of the requisition on 25-2-1996. He commenced the post-mortem examination on the same day at 3. 30 p. m. and completed by 5. 15 p. m. On examination of the dead body he found the following injuries:1. Incised cut over left upper eye lid 2 cms. x 0. 5 cm. x muscle deep. 2. Incised cut over lower lip on right side 1 cm. x 0. 5 cm. 3. Incised cut over front of left shoulder 3. 4 cms. x 1 cm. 4. Incised cut over top of left shoulder 4 cms. x 1 cm. x skin deep. 5. Stab injury over front of middle of chest over xyphistemum, horizontally placed 3. 5 cms. x 1. 5 cms. x 6. 5 cms. In its depth, pericardium of heart and right ventricle are found injured pericondial cavity and thoracic cavity contain 505 ml. , of fluid blood. 6. Stab injury 5 cms. , below right nipple 3 cms. x 1. 5 cm. x abdominal cavity deep. In its depth, costal margins and stomach are found injured. Abdominal cavity and stomach contain 719 ml. , of fluid blood. Stomach contain blood stained undigested food material 201 ml. , contain rice and other food particles. 7. Stab injury 10 cms. , below and inner to right nipple 3 cms. x 1. 5 cms. x abdominal cavity deep. In its depth, costal margins and stomach are found injured. Abdominal cavity and stomach contain 719 ml. , of fluid blood. Stomach contain blood stained undigested food material 201 ml. , contain rice and other food particles. 7. Stab injury 10 cms. , below and inner to right nipple 3 cms. x 1. 5 cms. x abdominal cavity deep. In its depth, stomach is found injured. 8. Stab injury 10 cms. , below left nipple over front of left side of abdomen 3. 5 cms. x 1. 5 cms. abdominal cavity deep. No organ found injured in its depth. 9. Stab injury 15 cms. , below and inner to left nipple 3. 5 cms. x 1. 5 cms. x abdominal cavity deep. In its depth no organ found injured. 10. Incised cut 4 cms. , above and front to left elbow 4 cms. x 1. 5 cms. x muscle deep. Oblique in position. 11. Incised cut 3 cms. , above and outer to left elbow 5 cms. x 2 cms. x muscle deep oblique in position. 12. Incised cut over front of left elbow 4 cms. x 1. 5 cms. x muscle deep, horizontal in position. 13. Incised cut 4 cms. , below and front to left elbow 5 cms. x 1. 5 cms. x muscle deep. Oblique in position. 14. Incised cut over back of left elbow horizontal in position 4 cms. x 2 cms. x skin deep. 15. Incised cut over outer aspect of left elbow joint 4 cms. x 2 cms. x skin deep. 16. Incised cut over dorsum of left wrist 2 cms. x 1 cm. x skin deep. 17. Incised cut between left thumb and fore finger 2. 5 cms. x 1. 5 cms. x skin deep. 18. Stab injury over front of right thigh 6 cms. above knee. 2. 5 cms. x 1. 5 cms. x 4. 5 cms. 19. Incised cut over front of right knee 2 cms. x 1 cm. x skin deep. 20. Grazed abrasion 3 cms. Above injury No. 19 measuring 2 cms. x 1. 5 cms. 21. Stab injury over medial aspect of left thigh 2. 5 cms. x 1. 5 cms. x 4. 5 cms. 22. Stab injury over central part of front of thigh 3 cms. x 2 cms. x 4. 5 cms. 23. Stab injury over back of left thigh 3 cms. x 1. 5 cms. x 1. 5 cms. 21. Stab injury over medial aspect of left thigh 2. 5 cms. x 1. 5 cms. x 4. 5 cms. 22. Stab injury over central part of front of thigh 3 cms. x 2 cms. x 4. 5 cms. 23. Stab injury over back of left thigh 3 cms. x 1. 5 cms. x 5 cms. 24. Incised cut over back of left knee 3. 5 cms. x 1. 5 cms. x muscle deep, 25. Incised cut 2 cms. above injury No. 24, measuring 2 cms. x 1. 5 cms. x skin deep. 26. Incised cut over front of left lower leg 3. 5 cms. x 1 cm. x bone deep. ( 9 ) HE noticed as many as 26 injuries on the person of the deceased. According to the opinion of the doctor all the injuries might have been caused on the deceased between 12 to 18 hours prior to the post-mortem examination. Accordingly, he issued the post-mortem report which is marked as Ex. P5. According to PW10 the cause of death was due to shock and haemorrhage resulting from multiple injuries and excessive bleeding. The evidence of the Doctor coupled with Ex. P5 further corroborates with the evidence of inquest panchanama. Hence on the point of homicidal death, we hold that the prosecution could able to establish that the deceased died a homicidal death. ( 10 ) AS stated earlier, there are three eye-witnesses to the incident who had witnessed the attack on the deceased by the accused. PW1 happened to be the wife of the deceased. She along with her deceased husband and his sister Krupavathi pw2 had gone to the bunk of one Sunkamma pw3 at 7. 30 p. m. When they were at the bunk the accused A1 to A3 who were alleged to have armed with daggers arrived at the scene of offence and all the three accused pushed her husband into the bunk and stabbed him on various parts of the body after throwing chilli powder on the face of the deceased. ( 11 ) WHILE commenting upon the evidence of PW1, learned defence Counsel sri Padmanabha Reddy submitted at the bar that the presence of PW1 at the scene of offence is very much doubtful for the reasons, according to the dying declaration ex. ( 11 ) WHILE commenting upon the evidence of PW1, learned defence Counsel sri Padmanabha Reddy submitted at the bar that the presence of PW1 at the scene of offence is very much doubtful for the reasons, according to the dying declaration ex. P7 which is alleged to have been recorded by the Magistrate, the deceased does not speak about the presence of PW1 and therefore PW1 might have been planted so as to suit the convenience of the prosecution. We are not in agreement with the submission made by the learned Counsel for the elaborate reasons to be given hereinafter in the judgment. But it is sufficient to hold that the evidence of PW1 has not been shattered in the cross-examination and her evidence appears to be very natural. PW1 further deposes that the incident in question was witnessed by PWs. 2 and 3 and thereafter PWs. 4 and 5 appeared at the scene of offence. PW5 happened to be the brother of the deceased. He removed the deceased to the Government Hospital at nandyal with the help of PWs. 1 and 2. PW2 happened to be the sister of the deceased who had also accompanied the deceased to the bunk of Sunkamma. She had also seen the attack by accused Nos. 1 to 3 on her brother. She has also in her evidence stated that on appearance of the accused at the scene of offence, they threw chilli powder on the face of the deceased and attacked him with draggers indiscriminately. The evidence of PW2 is also not shattered in any manner in the cross-examination. PW2 further deposed that on hearing the cries one B. Babu PW4 and PW5 came to the scene of offence and removed the injured to Government Hospital at Nandayal. The evidence of PW2 corroborates with the evidence of PW1 in all respects. PW3 Sunkamma is also an eye-witness to the incident. In fact, the attack had taken place in her beedi bunk. She deposed before the trial Court that the deceased along with PWs. 1 and 2 had come to her bunk at 7. 45 p. m. But in the later part of they evidence, she turned hostile and did not support the prosecution case. PW3 was cross-examined by the learned Public prosecutor with the permission of the Court but nothing is elicited in the cross-examination. 1 and 2 had come to her bunk at 7. 45 p. m. But in the later part of they evidence, she turned hostile and did not support the prosecution case. PW3 was cross-examined by the learned Public prosecutor with the permission of the Court but nothing is elicited in the cross-examination. PW4 happens to be a neighbour of the deceased. But he also did not support the prosecution case and therefore he was declared hostile. PW5 who is the younger brother of the deceased and on hearing the cries he rushed to the bunk of Sunkamma. He speaks about the presence of PWs. l and 2. According to his version he removed the deceased to the government Hospital at Nandayal where he was given initial treatment and on the advise of the Doctor he was shifted to Government hospital at Kurnool. But unfortunately the deceased died on the way itself. The evidence of PW5 establishes the presence of pws. l and 2 at the scene of offence. PW6 is the inquest panch whose evidence has been already discussed by us in the earlier paragraphs of the judgment. PW7 is also a panch, witnesses in whose presence blood stained clothes from the person of the dead body was seized by the police under the cover of panchanama. PW7 attested Ex. P3 panchanama. PWS is also a panch witness who has also attested Ex. P3 along with pw7. PW9 is the Village Administrative officer who attested Ex. P4 Panchanama under which material objects MOs. 5 to 11 were recovered by the Police Officers from the scene of offence. PW10 is the Doctor whose evidence has been already discussed by us. PW11 is another panch who has attested inquest report Ex. P6. PW12 is the munsif Magistrate who has recorded the dying declaration of the deceased on receipt of requisition from the Government hospital at Nandyal. According to the evidence of PW12, he visited the Hospital at 10. 30 p. m. and recorded the statement of the deceased. Initially he had put certain questions so as to satisfy himself that the patient (deceased) was in a fit condition to give the declaration. Ex. P7 is the dying declaration recorded by PW. 12 and Ex. P8 is the requisition received by him. ( 12 ) LEARNED Counsel Sri Padmanabha reddy appearing for the defence submitted at the bar that Ex. Ex. P7 is the dying declaration recorded by PW. 12 and Ex. P8 is the requisition received by him. ( 12 ) LEARNED Counsel Sri Padmanabha reddy appearing for the defence submitted at the bar that Ex. P7 has been brought into existence after the deceased was removed to government Hospital at Kurnool and therefore no reliance can be placed on Ex. P7. Learned Counsel further submitted that the patient might not have been given the dying declaration because of his precarious condition and moreover the declarant i. e. , the deceased has not stated before the learned Magistrate about the presence of pws. 1 and 2 at the scene of offence. Therefore, the presence of PWs. 1 and 2 at the scene of offence has got to be rejected. We are not in agreement with the submission made by learned Counsel for reason that the learned Counsel himself stated that the patient was in a precarious condition and therefore he might not have given the dying declaration, if this proposition is accepted, it has to be inferred that he might have given the details of his assailants only and he did not bother to give the details as to who had witnessed the incident. If the declarant i. e. , the deceased omits to give the names of PWs. 1 and 2, the declaration of the declarant (deceased) is not fatal to the prosecution case. Moreover, the submission of learned Counsel cannot be accepted for another reason that is the doctor PW13 who was present at the time of recording the dying declaration has clearly certified that the patient was in a fit and conscious condition to give the statement. The endorsement of the Doctor that the patient was in a fit and conscious condition to give the statement means that he was mentally fit to give statement. Therefore, we have no hesitation in holding that the dying declaration Ex,p7 inspires confidence. Further the deceased himself alleged to have told the names of the persons who attacked him and he has further alleged to have told that if at all he dies, the accused will be responsible for his death. This fact itself would go to show that he was mentally fit to give the statement. Further the deceased himself alleged to have told the names of the persons who attacked him and he has further alleged to have told that if at all he dies, the accused will be responsible for his death. This fact itself would go to show that he was mentally fit to give the statement. ( 13 ) PW13 is the Doctor who initially treated the deceased at Government hospital, Nandyal gave information to the si of Police, III Town Police Station. The intimation is marked at Ex. P9 and also sent requisition to the learned Magistrate for recording the dying declaration. He also noticed injuries on the person of the deceased which have been described by him while giving evidence. PW14 is the SI of Police who on receipt of intimation from the government Hospital at Nandyal rushed to the hospital and recorded the statement of the deceased which is brought on record as ex. P10. On the strength of Ex. P10 the offence in question came to be registered in criminal No. 15 of 1996 under Sections 324, 307 read with 34 IPC and on the death of the deceased the section of law was altered to that of Section 302 read with Section 34 ipc. ( 14 ) WHILE commenting upon the evidence of PW14, learned Counsel submitted at the Bar that Ex. PIO the statement of the deceased recorded by the si of Police cannot be relied as the patient might not have been in a condition to give the statement. On Ex. P10 statement, PW13 the doctor has endorsed to the effect that the "patient is in a conscious condition to give the statement". On Ex. P7 dying declaration recorded by PW12, the doctor PW13 endorsed to the effect that the "patient is in a fit and conscious condition to give the statement". On Ex. P10 statement, PW13 the doctor has endorsed to the effect that the "patient is in a conscious condition to give the statement". On Ex. P7 dying declaration recorded by PW12, the doctor PW13 endorsed to the effect that the "patient is in a fit and conscious condition to give the statement". ( 15 ) WHILE commenting on the above endorsements of the doctor PW13, learned counsel Sri Padmanabha Reddy relied on a decision of the Supreme Court rendered in the case of D. Rosamma v. State of Andhra pradesh, 1999 (2) ALD (Crl.) 641 (SC), wherein their Lordships held as under:"dying declaration recorded by magistrate-No certificate given by the doctor before the starting of recording the statement-Magistrate after putting some questions endorsed that the victim was in fit condition-After completion of the recording, doctor endorsed only that the patient was conscious-It does not mean that she was in a fit condition to make a statement-Held :it is not safe to rely on the dying declaration. " ( 16 ) IN the present case before us, in ex. PIO itself the doctor has endorsed stating that the patient is conscious to give statement. The endorsement that the patient is conscious to give statement means that he is also mentally fit to give the statement. A statement cannot be given by a person unless he is mentally fit to give the statement. The word conscious to give statement has to be presumed that the patient was mentally fit to give the statement therefore we hold that the ruling cited by learned Counsel does not apply to the facts of this case. ( 17 ) CONSIDERING the entire evidence, we are of the considered view that there is sufficient evidence on record which consists of first information given by the deceased himself while he was living to the SI of police, the dying declaration recorded by the learned Magistrate and the evidence of three eye witnesses would conclusively establish that accused Nos. 1 to 3 were responsible for causing the death of the deceased. ( 18 ) UNDER these circumstances, we hold that the learned II Additional Sessions judge, Kurnool, did not appreciate the above facts which are borne out from the record and erroneously acquitted the accused. Therefore, we are inclined to allow the appeal. 1 to 3 were responsible for causing the death of the deceased. ( 18 ) UNDER these circumstances, we hold that the learned II Additional Sessions judge, Kurnool, did not appreciate the above facts which are borne out from the record and erroneously acquitted the accused. Therefore, we are inclined to allow the appeal. The appeal is accordingly allowed and the order of acquittal recorded by the learned Sessions Judge is hereby set aside and the accused Nos. 1 to 3 are convicted of the offences punishable under Section 302 read with Section 34 IPC and each of the accused is sentenced to suffer imprisonment for life.