(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-1 recorded by the Judicial Magistrate and also on Ex. P-16, but having regard to the fact that A-2s 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 .

(4) THE Magistrate is examined as Public Witness 3 and he deposed that on 25/3/1981 at about 12.40 p.m. he recorded the dying declaration and before recording the same he was satisfied that the person making the statement was conscious and he was in a fit condition to make a voluntary statement. Having satisfied himself he proceeded to record the statement. Ex. P-1. The doctor who was present throughout, also made an endorsement in Ex. P-1 that the patient was fully conscious at the time of making the statement. In the cross-examination, he admitted that some details like nature of the weapons and the persons who were present and witnessed the occurrence have not been mentioned. The Magistrate further asserted that the entire questions put by him and answers given by the deceased have been faithfully recorded. In the dying declaration. Ex. P-1, we find that the first question put by him is "I am telling you that I am the Magistrate. Are you following?" Answer: "Yes, I am following." and then the other questions were put as to what happened and the reasons for the incident etc. and the answers given by the deceased have been duly recorded. So far as the mental condition of the deceased is concerned, the answer to the very first question shows that the patient was in a fit condition to make the statement. In K. Ramachandra Reddy v. Public Prosecutor , an observation is made to the effect that the omission of the person who recorded the dying declaration to question the deceased regarding his state of mind to make the statement was considered to be a very serious infirmity and that in case the omission by the Judicial Magistrate to put such a question threw a good deal of doubt whether the patient was really in a fit state of mind to make a statement. Whether the injured person who made the statement was in a fit condition depends on several circumstances. No doubt, a Judicial Magistrate who knows the law well would do better if such a question is put, but the mere absence of such a q