No impediment or legal bar against relying on said dying declaration.

K.N. Basha, J.

The sole appellant in this case, who has been originally arrayed as A-1, has preferred this Appeal questioning the legality of the Judgment of conviction and sentence passed by the learned Additional Sessions Judge, Thanjavur, in S.C. No.113 of 2002 dated 04.03.2003 convicting him under Section 341 I.P.C. (1 count), and sentencing him to undergo simple imprisonment for one month and also convicting him under Sections 302 r/w 34, I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months. The learned Trial Judge ordered the sentences to run concurrently.

2. There were two accused in this case and the second accused was tried separately in S.C. No.40 of 1998 as the appellant (A-1) was absconding and that case was ended in acquittal on 01.12.1998 on the ground that the name of the second accused was not mentioned by the deceased in the Dying Declaration.

3. The brief facts of the case, as unfolded during the course of the trial, are as follows :

(i) PW.2 is the wife of the deceased. PW.3 is the brother of the deceased. PW.4 is the wife of PW.3. It is stated by PW.3, brother of the deceased that the deceased was already having one wife, viz. , Malliga. PW.2 is the second wife of the deceased. PW.2 has turned hostile and she has not supported the case of the prosecution. PW.2 is said to have given a report under Ex.P.17. A perusal of the report given by her under Ex.P.17 shows that the accused (A-1) was having enmity with the deceased keeping the wife of the accused (A-1) as a concubine and therefore, he has decided to kill the deceased.

(ii) The prosecution placed reliance on the evidence of PW.2 to 6 as eye-witnesses but, unfortunately, all the eye-witnesses viz. , PWs.2 to 6 have turned hostile. The entire case of the prosecution is, therefore, left with the Dying Declaration, Ex.P.11, recorded by the Judicial Magistrate.

(iii) PW.13, the Head Constable, attached to the Thanjavur West Police Station received a telephonic message on 24.02.1995 at 10.45 a.m. about the admission of the deceased in the hospital, as he was assaulted by two known persons with knife. He had made entry in the general diary and placed the same before the Sub-Inspector of Police.

(iv) PW.14, Head Constable perused the general diary on 24.02.1995 at 9.45 p.m., and thereafter, went to Thanjavur Medical College Hospital and found the deceased admitted in the hospital with the blood stained injuries.

(v) PW.16, the Sub-Inspector of Police, attached to the Thanjavur West Police Station also received the information about the occurrence and perused the general diary of the police and thereafter, he went to the Thanjavur Medical College Hospital. The deceased was taken to the surgical ward. There, he examined PW.2 wife of the deceased and recorded her statement under Ex.P.17. PW.2 is also to have produced M.O.1-blood stained dhoti and M.O.2-blood stained shirt said to have been used by the deceased. Thereafter, he returned to the Police Station and registered a case in Crime No.211 of 1995 under Sections 341 and 307, I.P.C. Ex.P.18 is the First Information Report. He sent copy of the F.I.R. to the Court and to the higher police officials.

(vi) Doctor (PW.1) attached to the Thanjavur Medical College Hospital stated that the deceased was admitted on 24.02.1995 with bloodstained injuries. It is further stated that he was admitted in the surgical ward. At that time, the Judicial Magistrate came to the hospital and recorded Dying Declaration from 12.20 noon to 1.20 p.m. The Doctor, PW.1, also stated that he was present throughout recording of the Dying Declaration by the Magistrate and he also certified that the deceased was conscious and in a fit state of mind to give the Dying Declaration under Ex. P.1. P.W.1, Doctor, also stated that he had sent a message under Ex.P.2 to the Judicial Magistrate for recording Dying Declaration.

(vii) PW.9, who