Admissibility of the statement of shop owner a witness for the offence of murder in evidence after his death prior to the trail.

Jayachandra Reddy J.–All the six accused In S.C. No. 29of 1980 on the file of the learned Sessions Judge, Nellore are the appellants. They are found guilty under section 148, Indian Penal Code and each of them is sentenced to under go two years rigorous imprisonment. They are also convicted under section 302 read with section 149, Indian Penal Code and each of them is sentenced to undergo imprisonment for life. A-1 is further convicted under section 324, Indian Penal Code, and sentenced to suffer one year rigorous imprisonment.

2. The prosecution case is as follows. Ali the six accused and the material witnesses in the case are the residents of Nellore town. One Ingilala Suresh Kumar, hereinafter referred to as the deceased, is a resident of Rayapu Malawada, Nellore town and he was working as an employee in Radha-Madhav theaters. P.W. 3 and one Chitti Babu are his brothers. There have been misunderstanding between the accused on one hand and the. deceased and his brothers on the other. About one and half years prior to the occurrence, one Navakoti Sukumar; an associate of A-1 was murdered and Chitti Babu, the brother of the deceased and the deceased figured as accused, but the case ended in acquittal. About four years ago, A-1, A-4 and Sukumar, the deceased in the other case filed a case against the deceased in this case and that case also ended in acquittal. One year prior to the present occurrence, A-2 stabbed P.W. 3 and in that connection, a case was filed in the Court of the Second Additional Judicial First Class Magistrate, Nellore and the same is pending trial. Because of the acquittal of the deceased in the other two cases, the accused bore grudge against him and they were waiting for an opportunity to do away with the deceased.

3. One Gangapatnam Dayakar was working as a clerk under a Kerala Arrack contractor in the depot situated to the east of Atmakur bus stand. P.W.1, at the relevant time, was working as a cooly at the Railways Goods shed and the lorry stand and he is a friend of the deceased. Both of them used to visit the arrack shop of Dayakar to consume arrack. On 16th December, 1979, at about 11-30 p.m. the deaceased and P.W. 1 went to the arrack shop and sat on a bench asked Dayakar to serve arrack. Just then A-1 to A-6, having formed themselves into an unlawful assembly, entered the arrack shop. A-1 was armed with an axe and A-2 to A-6 were armed with knives and iron rods. Having entered their shop, A-1 shouted saying that the deceased cannot escape the death. So saying, he hacked the deceased with the axe on his chin. The deceased fell down from the bench. Thereafter A-2 to A-6, stabbed the deceased and also beat him indiscriminately all over the body with knives and ion rods. The deceased died on the spot. P.W. 2 who is a licensed cooly of the Road Transport Corporation at Atmakur bus stand also proceeded to the shop of Dayakar to consume arrack. On the way he stopped for urination and when he got up, he saw the accused entering the arrack shop. Then he went near the shop and peeped through a hole in the thatty on the southern side of the arrack shop and witnessed the occurrence. Thus P.Ws. 1 and 2 and Dayakar witnessed the occurrence. As the accused were stabbing the deceased, P. W. 1 questioned the accused about their highhanded act and A-1 took a knife from one of his associates and stabbed P.W. 1 with the knife on the left wrist of P.W. 1. Thereafter, the accused ran away. Seeing the occurrence, Dayakar in whose shop the deceased was stabbed to death stayed for some time and then went to No. 2 Town Police Station and presented a report Exhibit P-9 to the Head Constable P. W. 9 at about 1 a. m. P.W. 9 registered the crime and issued express F.I.Rs. The Inspector of Police, City Crime Station, Nellore P.W. 11 received the F.I.R. and took up the investigation. On 17th December, 1979, at about 7 a.m. P.W. 11 inspected the scene of offence, seized the bloodstained eath from the place of occurrence and