ORDER

1.Heard learned counsel for the parties.

2. The two appellants along with other two accused persons were tried and by judgment rendered by the trial court Accused 3 and 4 were acquitted of all the charges whereas the appellants were convicted under Section 302 read with Section 34 of the Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs 2000, in default to undergo rigorous imprisonment for a period of six months. Against the order of acquittal, no appeal was preferred either by the State or by the private prosecutor whereas on appeal being preferred by the convicted persons, their conviction and sentence have been upheld by the High Court. Hence this appeal by special leave.

3. In the present case, the first information report was lodged on the basis of the statement of PW I who is nobody else than the wife of the deceased. According to the first information report, four persons, including the informant, PWs 2, 3 and 4 were eyewitnesses to the alleged occurrence but none of them has supported the prosecution case in their substantive evidence in court, as such they have been declared hostile. Conviction of the appellants is based solely on dying declaration of the victim, which was recorded by a Judicial Magistrate, PW 11 in the presence of the doctor, PW 7. It is well settled that if the truthfulness or otherwise of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law, Therefore, the question to be considered is whether there was any infirmity in the dying declaration.

4. Mr M.N. Krishnamani, learned Senior Counsel appearing in support of the appeal, firstly, submitted that at the foot of the dying declaration, the doctor has simply given a certificate that the victim was conscious and he has nowhere stated that he was in a fit state of mind, therefore, no reliance can be placed upon the dying declaration. In support of his submission, learned Senior Counsel has placed reliance upon a decision of this Court in 9 Paparambaka Rosamma v. State of A.p 1 On the other hand, learned counsel appearing on behalf of the State pointed out that learned Senior Counsel for the appellant has cited the decision which has been overruled by a Constitution Bench of this Court in the case of Laxman v. State of Maharashtra2. We do not find any force in submission of learned Senior Counsel appearing for the appellants for two reasons. Firstly, the Constitution Bench has specifically stated in para 5 of the judgment that: (SCC p. 715)

"For the reasons already indicated earlier, we have no hesitation in a coming to the conclusion that the observations of this Court in Paparambaka Rosamma easel (at SCC p. 701, para 8) to the effect that in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time ofmaking a declaration has been too broadly stated and is not the correct enunciation of law." This shows that judgment rendered by three-Judge Bench has been overruled by the decision of the Constitution Bench. Secondly, even the three-Judge Bench judgment of this Court in the case of Paparambaka Rosamma1 does not help the appellants, as in that case in the dying declaration as well as inhis evidence in court, the doctor simply said that the patient was conscious, but nowhere mentioned the mental condition of the victim. In the present case, the doctor, PW 7 has specifically stated in court that prior to recording of the dying declaration, the Magistrate asked him as to whether the patient was in a conscious state and if he could answer the questions put to him. The witness says that he told the Judicial Magistrate that the victim was fully conscious and he was in the state of answering the ques