JUDGMENT

FAZL ALI, J.:— Five accused persons, namely, accused No. 1 K. Ramachandra Reddy, No. 2 Manne Sreehari, No. 3 Prabhakar Reddy, No. 4 Sudhakara Reddy and No. 5 Bhaskar Reddy were put on trial in the Court of First Additional Sessions Judge, Nellore under Sections 147, 148, 302/149 and 302/34, I. P. C. for having caused the murder of the deceased Venugopala Reddy resident of Rachakandrika village of Nellore District. The learned Sessions Judge after recording the evidence of the prosecution and hearing the arguments rejected the entire prosecution case and held that the prosecution had miserably failed to prove the case against any of the accused and he accordingly acquitted all the five accused by his judgment dated July 25, 1973. The State of Andhra Pradesh thereafter filed an appeal under Section 417 of the Code of Criminal Procedure against the order of acquittal passed by the learned Additional Sessions Judge, Nellore. The appeal was heard by a Division Bench of the Andhra Pradesh High Court which reversed the order of acquittal passed by the learned Session Judge only in respect of accused Nos. 1 and 2 and convicted them under Section 302/34, I. P. C. and sentenced them to imprisonment for life. The acquittal of the other accused Nos. 3 to 5 was confirmed by the High Court. The two appellants namely K. Ramachandra Reddy and Manne Sreehari to be referred to hereafter as Accused Nos. 1 and 2 respectively have filed the present appeal in this Court under Section 2A of the SC (Enlargement of Criminal Appellate Jurisdiction) Act of 1970.

2. A perusal of the judgment of the High Court clearly reveals that the learned Judges have not accepted the major part of the evidence adduced by the prosecution in support of the case against the accused and have founded the conviction of the accused Nos. 1 and 2 solely on the basis of Ext. P-2 a dying declaration alleged to have been made by the deceased Venugopala Reddy at Dr. Ramamurthi Nursing Home before a Magistrate the next day after he is said to have been assaulted. The High Court on a careful reading of the dying declaration held that it was a truthful version of the manner in which the deceased was assaulted by the accused and as the deceased had made a full disclosure to a Magistrate in the presence of a Doctor who had testified to the fact that the deceased was in a fit state of mind to make a statement there was no reason to disbelieve the dying declaration which the High Court believed to be genuine and true.

3. The arguments of the learned counsel for the appellants naturally centered round the reliability of Ext. P-2 the dying declaration recorded by the Magistrate at the Nursing Home. Appearing for the appellants Mr. Debabrata Mookerjee submitted two propositions before us:

(1) that the High Court in reversing the acquittal of the appellants completely overlooked the principles laid down by this Court that the High Court ought not to interfere with an order of acquittal in appeal without displacing the reasons given and the circumstances relied upon by the trial Court and certainly not in a case where two views are possible; and

(2) that the High Court failed to consider the suspicious circumstances under which the dying declaration was made which went to show that it was not a voluntary or true disclosure by the deceased but was the result of tutoring and prompting by his relations.

4. On the other hand Mr. Ram Reddy the senior standing counsel for the State of Andhra Pradesh submitted that the High Court was fully justified in relying upon the dying declaration which was both true and voluntary and whose correctness had been testified by the Magistrate and the Doctor. The learned counsel also relied on some other evidence in order to corroborate the genuineness of the dying declaration.

5. Before examining the contentions raised by counsel for the parties, it may be necessary to given a resume of the prosecution case shorn of its (un?) essential details. It appears that