PER R. M. BAPAT, J. ( 1 ) THE sole accused in S. C. No. 351/95, which was tried by the I Additional Sessions judge, West Godavari at Eluru, is the appellant herein. ( 2 ) THE accused/appellant was prosecuted and tried for offences punishable under Sections 376 and 302, IPC for murdering the deceased Indira on 4-2-1995 at 2 a. m. On evidence, the learned Judge found that the prosecution was able to establish the guilt of the accused under both charges and therefore sentenced him to be hanged by neck till death. ( 3 ) ON passing the conviction, the record was sent to this Court for confirmation of the sentence which is numbered as R. T. No. 1/2000 and the accused/appellant herein filed Crl. A. No. 541/2000. Since both the cases arise out of the same Sessions Case, they are disposed of by common judgment. ( 4 ) THE prosecution case can be briefly stated as follows:- the deceased Indira and her husband gopi were residing in a village known as jakkaram. Gopi was employed in a Prawns company. The accused was known to Gopi since long. The accused/appellant also visited the said village in search of a job. The husband of the deceased, Gopi was able to secure a job for the accused/appellant. The deceased and her husband allowed the accused to stay in their house and take food with them. ( 5 ) IT is further stated by the prosecution that on the intervening night of 4-2-1995 the accused/appellant went to the house of the deceased Indira when her husband was away for purchase of Prawns. She served food as usual and after taking meals, the accused/appellant slept near the door step and the deceased Indira slept inside the house. After some time, at about 2 a. m. the accused/ appellant got up, went to the room of the deceased Indira with an intention to satisfy his lust for sexual intercourse. After entering the room, the accused/appellant pulled her saree and told her to allow him to have sexual intercourse. The deceased was not prepared to have sex with him. She told the accused/appellant that what he was doing is not correct. She further told him that she was pregnant, carrying six months. But the accused was not satisfied. Therefore, he gagged her mouth, removed her clothes and had sexual intercourse. The deceased was not prepared to have sex with him. She told the accused/appellant that what he was doing is not correct. She further told him that she was pregnant, carrying six months. But the accused was not satisfied. Therefore, he gagged her mouth, removed her clothes and had sexual intercourse. He further threatened her from disclosing the above fact to any one. The deceased Indira removed the gag from her mouth and raised cries saying "boboy chachipothanu", meaning thereby she would die. She further threatened the accused/appellant that she would disclose the heinous act of the accused/appellant to the neighbours. Therefore, the accused/ appellant pulled her into kitchen, poured kerosene on the person of the deceased and set her on fire. The deceased started shouting and she came to the backyard of her house. On hearing her sounds, the neighbours i. e. , the landlord- p. W. 2 and P. W. 1 who happened to be the next door neighbours of the deceased came out. The landlord poured some water on the person of the deceased and tried to extinguish the fire, the deceased fell on the ground. Thereafter, she was removed to hospital for treatment. She was accompanied by P. W. 1 Radhika. On reaching the hospital, intimation was given to Kalla Police Station. P. W. 5 came to the hospital and recorded the statement of the deceased. As a matter of fact, the deceased was not able to speak Telugu. She was able to speak Malayalam. Therefore, P. W. 5 with the help of P. W. 1 Radhika, was able to record her statement. After recording the statement, it was sent to Kalla Police Station. P. W. 6 registered the case as Crime No. 4/95 against the accused / appellant. On receipt of a copy of the report, P. W. 11, the Inspector of police proceeded to Government Hospital, bhimavaram and recorded the statement of the deceased once again, which is now produced on record at Ex. P-24. The said statement was also recorded by P. S. I. P. W. 11 with the help of P. W. 1. ( 6 ) IT is further stated by the prosecution that at about 1. 30 a. m. , the deceased died. The death intimation was given to the Police station. Then the Sections of law were altered from Sections 307 and 376, IPC to sections 302 and 376, IPC. ( 6 ) IT is further stated by the prosecution that at about 1. 30 a. m. , the deceased died. The death intimation was given to the Police station. Then the Sections of law were altered from Sections 307 and 376, IPC to sections 302 and 376, IPC. The Inspector of police held inquest over the dead body of the deceased in the presence of P. W. 4. The inquest report is produced on record at ex. P-2. ( 7 ) IT further appears from record that the investigating Officer visited the scene of offence and prepared a panchanama of the scene of offence and recovered some incriminating articles. The statements of various witnesses were recorded. The scene of offence was got photographed by the investigating Officer. A requisition was sent to the learned Magistrate, Bhimavaram for recording dying declaration of the deceased. P. W. 10, the Magistrate, recorded the dying declaration again with the help of P. W. 1. The dying declaration recorded by the magistrate is produced on record at Ex. P-14. Thus, on completion of the investigation, charge-sheet was filed. ( 8 ) THE defence of the accused/appellant is that of total denial. It is also the defence of. the accused/appellant that he has been falsely implicated in this case. ( 9 ) IN order to bring home the guilt of the accused/appellant, the prosecution led the evidence of P. Ws. 1 to 11. They also produced certain documents, which were marked as Exs. P-1 to P-25 and M. Os. 1 to 5. ( 10 ) IN order to establish that the deceased died homicidal death, the prosecution led the evidence of P. W. 11 who had conducted the inquest over the dead body of the deceased in the presence of P. W. 4 who is the village Administrative Officer and others. The inquest report is Ex. P-2. After the inquest was over, the dead body was handed over to P. W. 7 for conducting autopsy over the dead body of the deceased. P. W. 7 was working as a Civil Assistant Surgeon, government Hospital, Bhimavaram at the relevant time. On receipt of the requisition, he conducted autopsy over the dead body of the deceased and noticed 100% burn injuries and on internal examination, he noticed the following injuries:- "head - membranes congested. Brain congested. Skull - intact. Neck - Hyoid bone intact. Larynx congested. On receipt of the requisition, he conducted autopsy over the dead body of the deceased and noticed 100% burn injuries and on internal examination, he noticed the following injuries:- "head - membranes congested. Brain congested. Skull - intact. Neck - Hyoid bone intact. Larynx congested. Throat - rib cage intact. Lungs congested. Bloody froathy fluid coming out from cut section. Hearts left side chambers empty; right "side chambers filled with fluid blood. Abdomen: Liver conges ted; spleen congested, Kidneys congested. Bladder empty. Uterus: Size of uterus is about 20 weeks cogested. On cut section ammoltic: sac is present. Ammoltic fluid is present. Foecal parts well developed. Length is 25 cms. Female sex. Nails are distinct. Light hair present on head. 20 weeks completed. Stomach: Blackish fluid present about 200 ml in the stomach. Specimen preserved. Bottle no. i - Swab from vagina, bottle No. 2 - public hair. Bottle No. 3: Nail scrapping, bottle No. 4; Cervical swab. Appropriate time of death is about 20-26 hours prior to my examination". ( 11 ) THE doctor opined that the deceased died because of the exclusive burn injuries. He reserved his opinion before receipt of f. S. L. report. After receipt of the F. S. L. report, he gave the final opinion marked as ex. P-18 and stated that the deceased died because of burn injuries, but there is no positive evidence of rape. But still, the possibility of rape cannot be ruled out. ( 12 ) CONSIDERING the evidence led by the prosecution on the point of homicidal death, we hold that the deceased died homicidal death. ( 13 ) THE next point raised for our consideration is as to whether the prosecution has been able to connect the accused/appellant with the crime. ( 14 ) P. W. 1, Radhika is a crucial witness in this case. P. W. 1 happened to be a neighbour of the deceased. During odd hours when she heard the cries and commotion, she came out of the house and went to the backside of her house and noticed P. W. 2 who was the landlord of the house where the deceased and P. W. 1 were staying, trying to extinguish the fire. P. W. 1 alleged to have made queries with the deceased as to how she sustained burns. P. W. 1 alleged to have made queries with the deceased as to how she sustained burns. Thereupon, the deceased told P. W. 1 radhika that the accused / appellant, against her will, raped her and set her on fire. This is the first dying declaration, which is the real dying declaration proved by P. W. 1. ( 15 ) THE learned Counsel Mr. P. S. Narayana appearing on behalf of the accused/appellant submitted the bar that as a matter of fact, P. W. I might have been tutored by the Police Officers to depose against the accused/appellant and therefore, her version has to be looked at with a great doubt. ( 16 ) WE are not in agreement with the learned Counsel for the accused/appellant. As a matter of fact, there is no evidence on record to show that P. W. 1 Radhika was on criminal terms with the accused. P. W. 1 radhika is a woman and she had no reasons to make a false implication of the accused/ appellant in a heinous crime like murder. She deposed before the Court that she had made queries with the deceased as to how she sustained the injuries. Thereupon,. the deceased told P. W. 1 Radhika that the accused/appellant had set her on fire. ( 17 ) IT appears from the record that the injured was removed to the hospital arid later the intimation was given to the Police station. P. W. 5, the Head Constable recorded the statement of the deceased which is now brought on record at Ex. P-1. Ex. P-1 is the first report-cum-dying declaration. P. W. 5 took the help of P. W. 1 in recording the statement as the deceased was not able to speak telugu. The deceased was able to speak malayalam. Even in the statement recorded by P. W. 5, the deceased told the entire story as to how she was raped and how the accused/appellant poured kerosene on her person and set her on fire. Therefore, the dying declaration given by the deceased inspires confidence. ( 18 ) A requisition was sent to the learned magistrate for recording the dying declaration of the deceased. The dying declaration recorded by the learned magistrate is now produced on record at ex. P-14. Therefore, the dying declaration given by the deceased inspires confidence. ( 18 ) A requisition was sent to the learned magistrate for recording the dying declaration of the deceased. The dying declaration recorded by the learned magistrate is now produced on record at ex. P-14. In his evidence, the Magistrate stated that some questions were put to the deceased in order to satisfy himself that she was mentally sound to depose and give the dying declaration. On being satisfied, the magistrate put the questions and recorded the answers in the question and answer form. ( 19 ) WE have one more dying declaration which was recorded by the Investigating officer, P. W. ll. The said dying declaration is produced on record a t Ex. P-24 in which the deceased had repeated the same story. ( 20 ) WHILE commenting upon these three dying declarations, which are produced on record, the learned Counsel Mr. P. S. Narayana submitted at the bar that there has been variance in the three dying declarations and therefore the three dying declarations should be accepted with caution. It was further contended by the learned Counsel that when there is variance in the dying declarations, then the Court cannot choose one and reject the other, so as to convict the accused in a heinous crime like murder. The learned Counsel placed reliance on a decision of Supreme Court in dandu Lakshmi Reddy vs. State of A. P. In which their Lordships held that if there is variance in two sets of dying declarations, then such dying declarations should not be accepted. ( 21 ) WE have no hesitation in accepting the said proposal. But in the present case, we hold that there is no variance at all. Ex. P-1 and P-24 are practically the same. Apparently, some variance appears in ex. P-14. But, in fact, it is not variance at all. Ex. P-14 was recorded by the Magistrate in question and answer form. But on material particulars, especially the accused/ appellant committing rape on the person of the deceased and setting her on fire, there is no variance at all in the three dying declarations. Therefore, the contention of the learned Counsel cannot be accepted. ( 22 ) CONSIDERING the above facts, we are of the considered view that the learned sessions Judge rightly convicted the accused / appellant. Therefore, the contention of the learned Counsel cannot be accepted. ( 22 ) CONSIDERING the above facts, we are of the considered view that the learned sessions Judge rightly convicted the accused / appellant. ( 23 ) NOW, the question arises as to what is the proper sentence in the present case. ( 24 ) THE learned Counsel Mr. P. S. Naryana relied upon a ruling reported in Ramji Rai and others vs. State of Bihar, in which their Lordships laid down certain tests so as to ascertain whether the case on hand is a rarest of rare cases in which the death sentence is called for. The first test laid down by their Lordships is: Was there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence? The second test is: were the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weight age to the mitigating circumstances which speak in favour of the offender? Applying the aforesaid test, we are of the considered view that the present case cannot be called as a rarest of rare cases. Their Lordships of the supreme Court in Bachan Singh vs. State of punjab were pleased to lay down same principle. The death sentence is to be awarded in rarest of rare cases. But, in the present case, we are of the considered view that the present case will not fall in the category of rarest of rare cases. Therefore, we are inclined to modify the sentence awarded. Accordingly, we pass the following order:- ( 25 ) THE referred Trial is dismissed. The criminal Appeal stands partly allowed by converting the death sentence into sentence of imprisonment for life.