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PETITIONER: K RAMACHANDRA REDDY & ANR.

       Vs.

RESPONDENT: THE PUBLIC PROSECUTOR

DATE OF JUDGMENT05/05/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA GUPTA, A.C.

CITATION:  1976 AIR 1994            1976 SCR  542  1976 SCC  (3) 618  CITATOR INFO :  D          1983 SC 164  (6)  RF         1992 SC1817  (17)

ACT:      Indin Evidence  Act. S.  32, Dying declaration-Omission of recording  Magistrate to  question injured  regarding his mental capacity  to  make  statement,  whether  meterial-Two views of  evidence when  possible, whether interference with order of acquittal proper.

HEADNOTE:      The two  appellants and  three others were tried by the Additional Sessions  Judge, Nellore,  under  Ss.  147,  148, 302/149 and  302/34 I.P.C..  for having committed the murder of  Venugopal   Reddy.  The   Session  Judge   recorded  the prosecution evidence, heard the arguments, and acquitted the accused, holding  that the  prosecution had  failed to prove the case against them. On appeal by the State under Sec. 417 Cr.P.C.. the  High Court  reversed the  acquittal  order  in respect of  the appellants  and convicted  them  under  Sec. 302/34 l.P.C  solely on  the basis  of a  dying  declaration allegedly made  by the  deceased before a Magistrate. In the present appeal  filed under  Sec. 2A  of the  Supreme  Court (Enlargement of  Criminal  Appellate  Jurisdiction)  Act  of 1970, it  was contended  before this  Court firstly that the High Court had wrongly interfered with an order of acquittal in a  case where  two views are possible, and secondly, that the dying declaration was not a voluntary or true disclosure but was the result of tutoring and prompting.      Allowing the appeal the Court, ^      HELD: (  1 ) The Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether  he  was  mentally  capable  of  making  any statement. The doctor’s certificate that the deceased was in fit state  of mind  to make statement by itself would not be sufficient to  dispel the doubts created particularly by the omission by  the Magistrate,  when he was satisfied that the injured was  suffering severe pain and was not able to speak normally. [550A-B, E-F]      Khushal  Rao   v.  State  of  Bombay  [1958]  SCR  552, followed.

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    Harbans Singh & Anr. v. State of Punjab, [1962] Supp. 1 S.C.R. 104.  Lallubhai Dev  Chand Shah  v. State  of Gujarat [1971] 3  SCR 767  and Tapinder  Singh v.  State  of  Punjab [1971] 1 SCR 599, referred to.      (2) Even  if the High Court was in a position to take a view different  from the  one taken by the Sessions Judge on the same  evidence, this would not be a ground for reversing the order of acquittal. Thus as two views were possible, the High  Court  was  in  error  in  disturbing  the  order  <of acquittal passed by the Sessions Judge. [551 & E]      Ram Jag  & ors.  v. The  State of  U.P. [1974]  3 SCR 9 followed.

JUDGMENT:      CRIMlNAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 143 of 1975.      From the Judgment and order dated 18th February 1975 of the Andhra Pradesh High Court in Criminal Appeal No. 583 and CMP Nos 10-103 of 1975.      D. Mookherjee and A. V. V. Nair, for the Appellants.      P.  Ram   Reddy  and   P.  Parameshwara  Rao,  for  the Respondent.      The Judgment of the Court was delivered by 543      FAZAL ALI, J. Five accused persons, namely, accused No. 1 K.  A 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  ss. 147,  148,  302/149  and 302/34 I.P.C.  for having  caused the murder Of the decessed 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 s. 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  Sessions  Judge  only  in respect of  accused Nos.  1 &  2 and convicted them under s. 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 &  2 respectively  have  filed  the  present appeal in  this Court  under s.  2A  of  the  Supreme  Court (Enlargement of  Criminal  Appellate  Jurisdiction)  Act  of 1970.      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 convicton of  the accused  Nos. 1 & 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

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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.      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 544           (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  hot   a  voluntary   or  true                disclosure by the deceased but was the result                of tutoring and prompting by his relations.      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 .      Before examining  the contentions raised by counsel for the parties,  it may  be necessary  to give  a resume of the prosecution case  shorn of its essential details. It appears that there  was serious  political rivalry  between  Bhaskar Reddy  A-5  and  the  deceased  Venugopala  Reddy  over  the election of  the local Panchayat Committee known as Samithi. It appears  that some  allegations  or  misappropriation  or public funds  having been made against accused No. 5 Bhaskar Reddy the  deceased displaced  him from the Presidentship of the Panchayat  Samithi in  a meeting called a few day before the death  of the  deceased  where  Bhaskar  Reddy  was  not invited. This  is supposed  to have  provided  an  immediate provocation for  the accused  to have attacked the deceased. According to  the prosecution  the deceased  had gone to his Petrol Pump  in Tada  Bazar and after sunset was leaving for his village  through  the  main  highway  and  after  having traversed about  half a  mile when  he reached  the place of occurrence situate near the mango grove he was surrounded by the five  accused who  pounced up him and assaulted him with stones, knives  and sticks.  Venugopala fell  down  and  the accused ran  away after  assaulting him.  P.Ws. S  and 6 who were keeping  watch over  the mango  grove were attracted to the scene  of occurrence  by the  cries of  the deceased and P.W. S  was sent  by P.W.  6 to the village Rachakandrika to call the  relations of the deceased. The errand entrusted to P.W. S  having been  executed P.W. 1 the son of the deceased and P.W.  2 his  cousin arrived  at the  spot and  found the deceased in  a sitting  posture being  attended to by P.W. 6 with a  large number  of injuries  on his person. In fact it would appear  from the  post mortem report that the deceased

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had sustained  as many  as 48  injuries on his person. IT is further alleged  by the  prosecution that  P.W. I  asked his father regarding  the occurrence  and the deceased disclosed the names  of  accused  Nos.  I  to  5  as  his  assailants. Thereafter the  deceased was taken in a lorry to the Nursing Home of Dr. Ramamurthi at Nellore and P.W. 7 Sarpanch of the village and a very close and intimate friend of the deceased also accompanied the deceased in the lorry upto Nellore. Dr. Ramamurthi had  gone to  a cinema  but on  being sent for he arrived at the Nursing Home and attended to the deceased. He directed P.W.  1 to  rush to the police station at Sullurpet to report  he occurrence.  P.W.  1  went  to  Sullurpet  and reported the  matter to the Sub-inspector who made a station diary entry  Ext. D-4.  The Sub-lnspector.  however, did not choose to register. 545 the case  on the  basis of  the diary entry but proceeded to Nellore. We  A would  like to mention here that Ext. D-4 was the real F.I.R. in the case within the meaning of s. 154 Cr. P.C. and  the Sub-Inspector  committed a dereliction of duty in  not   registering  the   case  on  receiving  the  First Information Report about the death of the deceased from P.W. 1 the  son of  Venugopala Reddy.  We might also mention that the Sub-Inspector  P.W. 15 was also a friend of the deceased being his  class fellow.  It may  be pertinent  to note here that although  a report  was made  by P.W.  1  to  the  Sub- Inspector yet  the names  of the  appellants were not at all mentioned in  the station diary entry which was based on the verbal report  given by  P.W. 1.  No reason  or  explanation seems to  have been  given by  the prosecution  for the non- disclosure of  the names  of the  appellants by P.W. 1 if in fact he had been told these names by the deceased himself at the spot. When the Sub-Inspector P.W. 15 reached the Nursing Home he  was asked by the Doctor P.W. 17 to get a Magistrate so that  the  dying  declaration  of  the  deceased  may  be recorded. Acting  upon the  instructions of P.W. 17 the Sub- Inspector went  to the Magistrate P.W. 11 who arrived at the Nursing Home  and recorded  the  dying  declaration  of  the deceased which  is Ext.  P-2 in the case and which forms the basis of the conviction of the two appellants. Thereafter in view  of   the  critical   condition  of  the  deceased  Dr. Ramamurthi advised  that the deceased should be taken to the Madras General Hospital and accordingly the relations of the deceased took  the deceased  to the  Madras General Hospital where also he is said to have made another dying declaration before the  police. This  dying  declaration,  however,  was rejected both  by the  Sessions Judge and the High Court and it is  not necessary  for us  to refer  to this  part of the evidence. Even  the oral dying declaration said to have been made by  E the deceased to P.Ws. 1 and 2 and others also has not been  accepted either  by the  Sessions Judge  or by the High Court.      The accused pleaded innocence and averred that they had been falsely  implicated due to enmity. Thus it would appear that the  conviction of  the accused depends entirely on the reliability of  the dying  declaration Ext.  P-2. The  dying declaration is  undoubtedly admissible  under s.  32 of  the Evidence Act  and not  being a statement on oath so that its truth could  be tested by cross-examination, the Courts have to  apply   the   strictest   scrutiny   and   the   closest circumspection to the statement before acting upon it. While great solemnity  and sanctity  is attached to the words of a dying man  because a  person on  the verge  of death  is not likely to  tell lies or to concoct a case so as to implicate an innocent  person yet the Court has to be on guard against

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the statement  of the  deceased being  a  result  of  either tutoring, prompting  or a  product of  has imagination.  The Court must be satisfied that the deceased was in a fit slate of mind to make the statement after the deceased had a clear opportunity to  observe and identify his assailants and that he  was  making  the  statement  without  any  influence  or rancour.  Once   the  Court  is  satisfied  that  the  dying declaration is  true and  voluntary it  can be sufficient to found the conviction even without any further corroboration. The law  on the  subject has  been  clearly  and  explicitly enunciated 37-833 Sup CI/76 546 by this Court in Khushal Rao v. State of Bombay(l) where the Court observed as follows:           On a  review of  the relevant  provisions  of  the      Evidence Act  and of the decided cases in the different      High Courts in India and in this Court, we have come to      the conclusion,  & agreement  with the  opinion of  the      Full Bench  of the Madras IB High Court, aforesaid, (1)      that it  cannot be laid down as an absolute rule of law      that a  dying declaration cannot form the sole basis of      conviction unless  it is  corroborated, (2)  that  each      case must  be determined  on its  own facts  keeping in      view tile  circumstances in which the dying declaration      was made;  (3) that it cannot be laid down as a general      proposition that  a dying  declaration is a weaker kind      of evidence  than other  pieces of evidence; (4) that a      dying declaration stands on the same footing as another      piece of  evidence and has to be judged in the light of      surrounding circumstances  and with  reference  to  the      principles governing the weighing of evidence, (S) that      a dying  declaration  which  has  been  recorded  by  Q      competent magistrate  in the  proper manner, that is to      say, in  the form of questions and answers, and, as far      as practicable,  in the  words  of  the  maker  of  the      declaration, stands  on a  much higher  footing than  a      dying declaration  which depends  upon  oral  testimony      which may  suffer from  all the  infirmities  of  human      memory and  human character,  and (6)  that in order to      test the  reliability of a dying declaration, the Court      has  to   keep  in  view  the  circumstances  like  the      opportunity of  the  dying  man  for  observation,  for      example, whether  there was  sufficient  light  if  the      crime was  committed at  night. whether the capacity of      the man  to remember  the facts  stated  had  not  been      impaired at  the time  he was  making the statement, by      circumstances beyond  his control.  that the  statement      has  been  consistent  throughout  if  he  had  several      opportunities of  making a dying declaration apart from      the official  record of  it; and that the statement had      been made  at the  earliest opportunity and was not the      result of tutoring by interested parties.      Hence, in  order to  pass the  test of  reliability,  a dying declaration  has to  be  subjected  to  a  very  close scrutiny, keeping  view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination." The  above  observations  made  by  this  Court  were  fully endorsed by a Bench of five Judges of this Court ’in Harbans Singh and  Another v.  State of  Punjab(2)  .  In  a  recent decision of  this  Court  in  Tapinder  Singh  v.  State  of Punjab(3), relying  upon the  earlier decision  referred  to above. this Court observed as follows:      (1) [1958] S.C.R. 552.

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    (2) [1962] Supp. (1) S.C.R. 104.      (3) [1971] 1 S.C.R. 599. 547           lt is  true that  a dying  declaration  is  not  a      deposition in  court and ii is neither made on oath nor      in the  presence of  the accused. It is, therefore, not      tested by  cross-examination on  behalf of the accused.      But a  dying declaration is admitted in evidence by way      of  an  exception  to  the  general  rule  against  the      admissibility of  hearsay evidence, on the principle of      necessity. The  weak points of a dying declaration just      mentioned merely  serve to  put the  court on its guard      while testing  its reliability,  by imposing  on it  an      obligation  to  closely  scrutinise  all  the  relevant      attendant circumstances." In  Lallubhai   Devchand  Shah   and  others   v.  State  of Gujarat(1), this  Court laid special stress on the fact that one of  the important  tests of  the reliability  of a dying declaration is  that the  person who  recorded  it  must  be satisfied that  the deceased  was in a fit state of mind and observed as follows:           "The Court,  therefore, blamed  Dr. Pant  for  not      questioning Trilok  Singh with  a view  to test whether      Trilok Singh  was in  a "fit state of mind" to make the      statement. The  "fit state  of mind"  referred to is in      relation to  the  statement  that  the  dying  man  was      making. In  other words, what the case suggests is that      the person  who records  a dying  declaration  must  be      satisfied that the dying man was making a conscious and      voluntary statement with normal understanding."      We would  now examine the dying declaration Ext. P-2 in the light of the principles enunciated above. To begin with, we would like to deal with the surrounding circumstances and the  attendant   factors  which   culminated  in  the  dying declaration Ext.  P-2 made by the deceased at Dr. Ramamurthi Nursing Home.  According to the prosecution there were three clear occasions  when the  deceased was  conscious and could have  made   a  statement   disclosing  the   names  of  his assailants.  The   first  occasion   was  at  the  place  of occurrence itself,  after the  deceased is said to have been assaulted by  the accused.  The persons  who were present on this occasion  were P.Ws.  1, 2,  5 & 6. According to P.W. 1 (p. 5 of the printed Paper Book) the deceased even though he was groaning  was in  a condition  to speak out and on being questioned he  narrated the  entire occurrence and disclosed the names  of the  five accused  persons to P.W. 1. The fact that the deceased had mentioned the names of all the accused to this  witness has  been disbelieved  by 4 both the Courts and in  our opinion rightly, because P.W. i did not make any mention of this fact either in the F.I.R. Ext. D-4 or in his statement to  the police. Nevertheless from the statement of P.W. 1 who is the son of the deceased it is manifestly clear that the  deceased was in a position to make a statement and yet he  did  not  disclose  the  names  of  the  assailants. Similarly P.W.  2  (p.  15  of  the  Printed  Paper  Book  ) categorically states  that in  his presence P.W. I asked the deceased as  to how the incident took place and the deceased told him  that all  the five  accused had assaulted him with sticks, stones and  (1)[1971] 3 S.C.C. 767. 548 knives and  then ran away. This also shows that the deceased was conscious  when he  is said to have made this statement. Lastly, there  is the evidence of P.W. 6 (p. 29 of the Paper Book) who  also says the although the witness could not hear

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what the  deceased said yet he was speaking very slowly with his son.  Thus at the first stage, namely, when the deceased was at  the spot  he was in a position to make the statement and yet,  according to  the findings of the Courts below, he did not disclose the names of the assailants to any body.      The  second  occasion  when  the  deceased  could  have disclosed the  names of  his assailants was at the time when he was  carried in  a lorry  from the place of occurrence to Dr. Ramamurthi  Nursing Home.  P.W. 1  (p. 8  of the printed Paper Book)  categorically states  that at the time when his father was  put on the lorry he was groaning but he was in a position to  talk. The witness further goes on to state that ’none of the ’’O to 30 persons who had gathered at the scene tried to ask the deceased as to how the incident took place. Similarly P.W.  6 (p.  29 of the printed Paper Book) clearly stated that  the injured  was in a position to talk while he was being  put on  the lorry and about 50 to 60 persons were present there at that time.      The  third   occasion  when  the  deceased  could  have disclosed the  names of  the assailants  was when he reached the Nursing  Home. In  this connection  P.W. 1  (p. 9 of the printed Paper Book) has stated that on reaching the hospital the Doctor  was sent  for and  at that  time his  father was conscious and  was in  a position  to  talk  though  he  was groaning with pain. He further admitted that he did not tell the Doctor  what his  father had  told him. Similarly P.W. 2 states (at  p. 16  of the  printed Paper Book) that when the Sub-Inspector of  Sullurpet came  and saw the injured in the room of  the Nursing  Home the  injured was in a position to talk but  the Sub-Inspector  did not talk to him or question him on  anything. P.W.  15 the  Sub-Inspector  of  Sullurpet states (at  p. 41  of the  printed Paper Book) that he found about 20  persons at  the Nursing  Home gathered outside the Nursing Home and saw Dr. Ramamurthy attending on the injured inside when the injured was hl a conscious state.      From  the  evidence  discussed  above,  it  is  clearly established that  although the deceased was conscious at the place of occurrence, at the time when he was put on the lory and also at the time when he was brought to the Nursing Home and was in a position to speak he did not disclose the names of the  assailants to any body. This conduct of the deceased can be  explained only on two hypotheses, namely, either the deceased was  not conscious at all and was not in a position to talk to ally body or that even though he was conscious he did not  disclose the  occurrence to  any body because under the stress  and strain  of the  assault,  which  took  place admittedly at  a time when darkness had set in and there was very little  moonlight, he  was not  able  to  identify  the assailants. No  third inference  can be  spelt out  from the conduct of  the deceased  in not disclosing the names of the assailants on  these three occasions. Further more, the fact that the  deceased was  not in  a position  to identify  the assailants receives  intrinsic support from the statement of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly 549 states that  he had  seen A-3,  A-4 and  A-l at  A-5’s house about five  years before  the occurrence.  He further states that he  did not  know it  his father  knew A-l, A-3 and A-4 well and  by their  names. He  further states  that A-3  had visited his  house five  years ago  and  he  could  not  say whether his  father was  present at  that time.  Lastly  the witness states  that he  had no  other acquaintance with A-3 and A-4.  He also states that he came to know A-2 only after the occurrence  of this case. The learned Sessions Judge has rightly  relied  on  these  circumstances  to  come  to  the

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conclusion that  the deceased  did not know the names of the accused nor was he able to identify them in the darkness and this introduces a serious infirmity in the dying declaration itself. It  would be seen that in the dying declaration Ext. P-2 the  name of  the accused  No. l  Ramachandra  Reddy  is clearly mentioned  and so  is the  name of accused No. 2. If according to  P.W. l  there was  a clear  possibility of the deceased not  having known the names of A-l, A-2 or A-3 then it is  not understandable how these names could be mentioned by the  deceased in  his dying  declaration unless the names were suggested  to him by some body. Against this background the presence  of P.W.  2 the  cousin of  the deceased by his side even  at  the  time  when  the  dying  declaration  was recorded or  a little  before that clearly suggests that the possibility of  prompting cannot  be excluded. Even the High Court has  clearly Found  that the  possibility of prompting was there.      Dr. Ramamurthi  P.W.  17  has  stated  that  while  the Magistrate was  recording the  statement of the injured, the injured was  sitting for a while and was thereafter lying in the lap  of  P.W.  2  who  was  nursing  him  then.  Another important circumstance  that  has  been  considered  by  the learned Sessions  Judge but  overlooked by the High Court is that even  though according  to  the  evidence  led  by  the prosecution the deceased was fully conscious in the hospital and had  met persons  from  his  village,  his  Friends  and acquaintances including  Dr. Ramamurthi P.W. 17 and the Sub- Inspector P.W.  15 yet  he did not make any statement to any of these  persons nor  did  any  of  these  persons  try  to question the  deceased about  the occurrence.  In  fact  the categorical evidence  of P.W. 17 Dr. Ramamurthi is that from the time  the patient  was brought  in the Nursing Home till the Magistrate  arrived, the  patient did  not  to  any  one including him.  The learned Sessions Judge has observed that this is  a very  extra-ordinary and  unnatural circumstances which throws  a wood  deal of  doubt on the circumstances in which the  dying declaration  was recorded.  The Doctor  was known to the deceased and yet neither the deceased talked to him nor  did the  Doctor make  any inquiry  from him. On the other hand P.W. 15 the Sub-Inspector has stated (at p. 42 of the printed  Paper Book)  that when the deceased had reached the Hospital  he was  not in  a position  to  talk  and  was groaning. P.W.  17 Dr.  Ramamurthi has  also stated that the state of  mind of  the deceased was restlessness. He further deposed that till the Magistrate arrived, the witness had no opportunity to  assess the  mental capacity  of the  injured Venugopala Reddy.  It would appear from the evidence of P.W. 20 who  made the  postmortem that  there were  as many  as 4 injuries on  the person  of the  deceased out of which there were 28  incised wounds  on the  various parts  of the  body including quite  a few  gaping incised  injuries. In view of these serious  injuries we find it difficult to believe that the deceased  would have been in a fit state of mind to make a dying declaration. The Magistrate P.W. 11 who recorded the dying 550 declaration has admitted that the injured was suffering from paid and  he was  not in a position to sign and so his thumb impression was  taken. The  Magistrate further admitted that the injured  was taking  time to  answer the  questions. The Magistrate further  admitted that  the injured was very much suffering with  pain. In spite of these facts the Magistrate appears to  have committed  a serious  irregularity  in  not putting a  direct question  to the  injured whether  he  was capable mentally  to make  any statement.  In  the  case  of

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Lallubhai Devchand Shah referred to by us supra 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 one and in our opinion in  the instant  case the  omission of  the Judicial Magistrate who knew the law well throws a good deal of doubt on the  fact whether  the deceased was really in a fit state of mind  to make a statement. The Sessions Judge has rightly pointed out  that even  though the deceased might  conscious in the  strict sense of the term, there must be  reliable to show, in  view of his intense suffering and serious injuries that he  was in  a fit  state of  mind to  make a  statement regarding the  occurrence. Having  regard, therefore, to the surrounding circumstances  mentioned above,  which have  not been  fully  considered  by  the  High  Court,  we  find  it extremely  unsafe   to  place  any  reliance  on  Ext.  p  2 particularly in  view of  the conduct of the deceased in not making any  disclosure regarding the occurrence on the three previous  occasions   when  he   had  a  full  and  complete opportunity to name his assailants.       Lastly  it is  admitted that  there was serious enmity between the  parties. P.W. 2 states (at p. 16 of the printed Paper  Book)   that  there  were  ill-feelings  between  the deceased and  A-l, A-2  to A-5.  While counsel for the State has submitted  that the deceased was assauted due to enmity, the possibility  cannot be  ruled out  that the  accused may have been  named because of the enmity. The learned standing counsel for  the State  relied upon  the  statement  of  Dr. Ramamurthi who  had given  the certificate that the deceased was  in  fit  state  of  mind  to  make  a  statement.  This certificate by  itself would not be sufficient to dispel the doubts created  by the  circumstances mentioned  by  us  and particularly The  omission by tile Magistrate in not putting a direct  question to  the  deceased  regarding  the  mental condition of  the injured  when he  was satisfied  that  the injured was  suffering from  severe pain and was not able to speak normally.  For these  reasons,  therefore,  this  case clearly falls  within principles  (5) and  (6) laid  down by this  Court   in  Khushal   Rao’s  case  (supra).  In  these circumstances we  feel that  it would  be wholly  unsafe  to found the  conviction of the appellants on the basis of Ext. P-2 Mr. P.  Ram Reddy  for the State submitted that Ext. P-2 was corroborated by  the presence of at least accused No. 1 near the petrol  pump slightly before the occurrence, took place. The presence of accused No. 1 in Tada Bazar near his village is not  completely inconsistent  with his  guilt and being a resident of  the village  close by his presence in the Bazar can be  explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, how ever,  surrendered within  14 days  and this  is  not  a circumstance which  outweigh the  effect of  the  suspicious circumstances under which 551 the dying  declaration was  made. It seems to us that as the deceased did not know the names of the appellants nor did he know them  from before  he was  not  able  to  identify  his assailants and  the names were supplied by P.W. 2 his cousin just before  the dying  declaration was  made.  Putting  the prosecution case  at the highest, there can be no doubt that the view  taken by the learned Sessions Judge that the dying declaration did  not amount  to a truthful disclosure cannot be said  to the  against the  weight of  the evidence on the record and  even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on

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the same  evidence, this would not be a ground for reversing the order  of acquittal.  In Ram Jag and others v. The State of U.P.(’) this Court observed as followed:           "Such  regard   and  slowness   must  find   their      reflection in the appellate judgment, which can only be      if the appellate court deals with the principal reasons      that become influenced the order of acquittal and after      examining the  evidence with care gives its own reasons      justifying a  contrary view  of  the  evidence.  It  is      implicit ill this judicial process that if two views of      the evidence  are reasonably  possible, the  finding of      acquittal ought not to be disturbed." Thus in  the instant  case  as  two  views  were  reasonably possible and  therefore tile  High Court  was  in  error  in disturbing the  order of  acquittal  passed    the  Sessions Judge.      For The  reasons given above, we are satisfied that the High Court  was not  at all justified in reversing the order of acquittal  passed by  the Sessions  Judge. The  appeal is accordingly allowed,  the  conviction  and  sentence  passed against the  appellants are set aside and they are acquitted of the  charges framed  against  them.  The  appellants  are directed to be set at liberty forthwith.                     M.R.Appeal allowed.  (1) [1974] 3 S.C.R. 9. 552