MAMIDI VENKANNA VENKAIAH Vs. STATE OF A P

JUDGEMENT

(1.) Heard the learned counsel for the appellant as well as the learned Public Prosecutor. This is an appeal filed against the conviction and sentence in Sessions Case No. 210 of 1997 on the file of the II-Addl. Sessions Judge, Nalgonda. A-1 has been convicted of the offence under Sec. 302 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- in default he has to suffer imprisonment for six months. A-2 was acquitted.

(2.) Appellant/A-1 was charged with an offence under Section 302 of I.P.C. for having committed the murder of his wife Mamidi Jayamma by pouring kerosene over her body and set fire to her on 7-11-1996 at 1930 hours at Thallagadda, Suryapet. She died while undergoing treatment in Osmania General Hospital at Hyderabad. He pleaded not guilty to the charge and was tried. Prosecution examined 14 witnesses and exhibited 12 documents.

(3.) It is concerned at the bar that there is no direct evidence and the witnesses who were projected as eye witnesses being the children of the couple (P.Ws. 2 and 3) turned hostile. The conviction has been solely based on two dying declarations purported to have been made by the deceased before her death. One of the dying declarations being Ex.P-1 was recorded by the Magistrate (P.W.I) on 7-11-1996 at 9.40 p.m., whereas the second dying declaration being Ex.P-9 was recorded by Police Officer (P.W.12). As a matter of fact, this dying declaration was recorded by police as a statement under Section 161 Cr.P.C. These two dying declarations have been attacked by the learned counsel appearing for the appellant on various grounds. The first dying declaration which was recorded by the Magistrate is challenged additionally on the ground that the doctor has not certified that the deceased was in a fit condition to make a statement when the dying declaration was recorded. We have seen the dying declaration and also the statement made by the Magistrate who was examined as P.W.I. The doctor while giving certificate has stated, "At the time of recording dying declaration the patient is conscious and alert to give statement." The learned counsel for the appellant submits that it is settled law that the doctor should certify that the patient was in a fit condition to make a statement, but he has only stated that the patient was conscious and alert to give the statement. In view of the reasons we would be giving shortly for accepting the other arguments of the learned counsel for the appellant, we do not intend to decide as to whether the 'alertness' would mean the 'fitness'.