( 1 ) ACCUSED 1 and 2 were tried in S. C. No. 27 of 1995 on the file of the I Additional District and Sessions Judge, Krishna, at Machilipatnam for the alleged offences punishable under sections 302 and 201 IPC. However, the learned Sessions Judge rejected the prosecution case in so far as it relates to the first accused is concerned, but convicted the second accused for the alleged offence punishable under Section 304 (II) IPC and accordingly sentenced him to undergo rigorous Imprisonment for a period of five years and to pay a fine of Rs. 100/-, in default, to undergo Rigorous Imprisonment for a further period of two weeks. Hence, this appeal by the appellant-second accused. ( 2 ) THE case of the prosecution, in brief, is that Mudedla Appa Rao (herein after referred to as the deceased ) was a worker in Indus marine Food Factory, which is at a distance of 2 or 3 k. m. from Pamarru. P. W. 1 Mudedla lakshmi, is the mother of the deceased. After the death of the father of the deceased, p. W. 1 and the deceased were living at pamarru and P. W. 1 was running chit business. The first Accused, by name dintakurru @ Pulipaka Venkateswara Rao joined as a subscriber in the chit and in that context, he was visiting the house of P. W. 1 frequently, which was not to the liking of the deceased. On 10-04-1994, when the deceased returned home from work, he saw the said Venkateswar Rao in his house and on account of which he was serious and found fault with his mother for allowing him into the house in spite of his repeated sayings. Later, the said Venkateswar Rao left the place. However, half an hour thereafter, the appellant herein, who was alleged to be working as a cleaner of the lorry belonging to the said Venkateswar Rao came and took the deceased away and later they consumed liquor. Thereafter, they boarded a lorry and got down at Bondlella Donka and when they were proceeding towards fields, two more persons joined them. All of them beat the deceased with sticks and dragged him to the nearby bushes and threw him into it. Thereafter, they boarded a lorry and got down at Bondlella Donka and when they were proceeding towards fields, two more persons joined them. All of them beat the deceased with sticks and dragged him to the nearby bushes and threw him into it. On the next day morning, some farmers saw the deceased and informed the same to P. W. 1, who, with the assistance of her neighbours engaged a taxi car, went to that place and took the deceased to the Police Station. The head Constable, P. W. 19, recorded the statement of the deceased Ex. P-20 and sent him to the Government Hospital for treatment. Based on Ex. P-20, P. W. 19 registered a case in Crime No. 42 of 1994 initially for the alleged offence punishable under section 324 read with 34 and 109 IPC. Ex. P-21 is the FIR. The Sub-Inspector of police, who was examined as P. W. 20 took upthe investigation, proceeded to the hospital and recorded the statement of the deceased, ex. P-22. Thereafter, P. W. 20 examined p. Ws. 1 to 5. In view of the gravity of the offence, he altered the FIR from Section 324 read with Section 34 and 109 IPC to section 307 IPC and submitted a memo (Ex. P-23) to the Magistrate to that effect. Later, he went to the scene of offence, prepared observation report, Ex. P-5, in the presence of the mediators and also drew a rough sketch marked as Ex. P-24. P. W. 18, the Deputy Civil Surgeon, examined the deceased and found fracture and dislocation of cervical 6th vertebra and also noticed abrasions on various parts of the body and accordingly, issued a wound certificate ex. P-19. Subsequently, the deceased was shifted to the Government General hospital at Machilipatnam where he was given treatment. On a requisition, dated 14-04-1994, the III Additional Judicial First class Magistrate went to the hospital and recorded the statement of the deceased, marked as Ex. P-16. In view of the seriousness of the injuries received by the deceased, he was referred to NIMS hospital at Hyderabad, where he was treated for 10 days. Thereafter, he was brought home. But, as he was ailing. P. W. 1 admitted him in the District Hospital, at Machilipatnam and there he died on 07-08-1994. P-16. In view of the seriousness of the injuries received by the deceased, he was referred to NIMS hospital at Hyderabad, where he was treated for 10 days. Thereafter, he was brought home. But, as he was ailing. P. W. 1 admitted him in the District Hospital, at Machilipatnam and there he died on 07-08-1994. On 18-04-1994, the appellant and the first accused were arrested at their native place and were produced before the magistrate. On receipt of the death intimation, the F. I. R. was altered to that of an offence punishable under Section 302 I. P. C. On receipt of the altered F. I. R. , the Inspector of police, who was examined as P. W. 21, took up investigation and held inquest over the dead body in the presence of the mediators. The inquest report was marked as Ex. P-10. Thereafter, the body was sent for post-mortem examination and P. W. 17, the doctor, who conducted autopsy, issued Post-mortem certificate Ex. P-18. He opined that the death must have occurred due to septicaemia. After completion of investigation, P. W. 21 filed charge-sheet against the appellant and the first accused for the offences punishable under Section 302 and 201 IPC. ( 3 ) IN support of its case, the prosecution examined 21 witnesses and got exhibited exs. P-1 to P-25. On an analysis of the said evidence, the learned Judge did not accept the case of the prosecution in so far as the first accused was concerned and accordingly acquitted him. However, considering the dying declarations marked as Exs. P-20, P-16 and also the evidence of P. W. 8, in whose company the deceased was last seen, the learned Judge convicted the appellant herein for the offence punishable under section 304 (ll) IPC. ( 4 ) HEARD the learned senior counsel mr. Bal Reddy, appearing for the appellant and also the Additional public Prosecutor. ( 5 ) ACCORDING to the learned counsel for the appellant, the alleged statements, which are in the form of dying declarations are wholly inconsistent. Ex. P-20 was recorded by the Head Constable, who was examined as P. W. 19, on 11-04-1994. Thereafter, the sub-Inspector, P. W. 20, took up investigation and he recorded another statement i. e. Ex. P-22. But, the said statement did not see the light of the day till 4-8-1997. If really it is a fact that Ex. Ex. P-20 was recorded by the Head Constable, who was examined as P. W. 19, on 11-04-1994. Thereafter, the sub-Inspector, P. W. 20, took up investigation and he recorded another statement i. e. Ex. P-22. But, the said statement did not see the light of the day till 4-8-1997. If really it is a fact that Ex. P-22 was recorded immediately after recording Ex. P-20, nothing prevented the Sub-Inspector from making a mention about the same. For the first time, the said statement was produced before the Court during the course of his examination on 4-8-1997. According to him, simply because the name of the appellant finds place in all the three dying declarations, it cannot be a basis for conviction and the Court has to take the entire version in the dying declarations into consideration in coming to the conclusion that the appellant alone has committed the alleged offence. In support of his contention, the learned senior counsel has drawn the attention of this Court to the following judgments. (1) Leila Srinivasa Rao v. State of andhra Pradesh (2) State of Punjab v. Praveen Kumar. It is his further submission that if the Court eschews the so called dying declarations from consideration, there is absolutely no other evidence to come to the conclusion that the appellant has committed the alleged offence, as stated by the prosecution. ( 6 ) THE learned Additional Public prosecutor opposed the said statements and submitted that the said dying declarations are wholly consistent. According to him, the trial Court is perfectly justified in taking the said dying declarations into consideration in coming to the conclusion that the accused has committed the offence, for which he is convicted. It is his further submission that even if the said dying declarations, marked as Exs. P-20, 16 and 22, are not accepted, still there is sufficient evidence to establish the guilt of the appellant herein. According to him, P. W. 1, who is the mother of the deceased has categorically stated that the deceased was last seen in the company of the appellant herein and similarly P. W. 8, who is totally an independent witness also speaks to the fact that the deceased was last seen in the company of the appellant herein. According to him, P. W. 1, who is the mother of the deceased has categorically stated that the deceased was last seen in the company of the appellant herein and similarly P. W. 8, who is totally an independent witness also speaks to the fact that the deceased was last seen in the company of the appellant herein. According to him, that evidence is sufficient to hold that the deceased was seen in the company of the appellant herein and it is for the appellant to explain as to what had happened thereafter in view of the fact that it is within his knowledge. In this context, he has drawn the attention of this Court to Section 106 of the Indian evidence Act and submitted that it is a fact, which is exclusively within the knowledge of the appellant herein and hence, the burden shifts on to him to prove as to what had happened subsequently. Forthis proposition, the learned counsel relied on a Judgment of the Apex Court reported in Ram Gulam choudhury and others v. State of Bihar (Supreme Court ). ( 7 ) IN the light of the said submission, it is necessary for this Court to look into exs. P-20,p-16 and P-22. No doubt, several facts are mentioned in ex. P-22, the alleged dying declaration, recorded by P. W. 20, If really it is a fact that the said dying declaration was recorded immediately after Ex. P-20, on 11-04-1994, what happened to the said dying declaration prior to 4-8-1997 is not known. Nothing is mentioned about the said dying declaration in the charge-sheet and as per the case of the prosecution, the III Additional Judicial first Class Magistrate recorded Ex. P-16 dying declaration, dated 14-04-1994. Hence, it is for the Court to look into the said document with suspicion. Coming to Exs. P-20 and p-16, admittedly there are inconsistencies in these two documents. In Ex. P-20, it is stated that "while I was at house at about 7. 00 p. m. , lorry cleaner Prasad, native of Jujjavaram came to my house and took me to the center, there we drank Brandy in Reddy s Brandy shop, boarded a lorry at about 8. 00 p. m. and got down at the bondlella donka. From there prasad took me to the fields. In the fields near our factory we the two other persons. 00 p. m. and got down at the bondlella donka. From there prasad took me to the fields. In the fields near our factory we the two other persons. (?) All the three beat me there with sticks. I received severe injuries. I fell down due to severe injuries on my legs. I do not know the names of other two persons. " So from a reading of the above dying declaration, according to the deceased he does not know those two persons, who joined Prasad and beat him. In so far as the dying declaration, marked as ex. P-16, which was recorded four days after the alleged incident is concerned, the deceased gave all the descriptive particulars and stated that Prasad i. e. appellant herein, venkateswar Rao i. e. the first accused in the case and another beat him indiscriminately. The said dying declaration reads as follows:" (7) Tell (me) what had happened? ans: At about 6. 30 p. m. on 10-04-1994 i went to home from factory Dinatakuru venkateswara Rao came to my house to pay chit amounts. On seeing him I accosted my mother that he is not a person of good character, that he does not pay chit amounts properly and not to allow him in the chits, Dintakuru venkateswara Rao also went away. (8) What are particulars of Dintakuru venkateswara Rao? ans: Owner of a lorry bearing No. 3547 native of Jujjavaram. It is located after crossing the 14th mile stone, aged about 35 years or 40 years. (9) What had happened subsequently? ans: After leaving my house, venkateswara Rao sent his cleaner prasad. He took me to the beer shop located opposite to State Bank in pamarru. Both of us drink alcohol, came to the center and at Masala. At that time venkateswara Rao accosted his cleaner prasad and enquired whether they had consumed alcohol, for which Prasad replied negatively. Prasad again came to me and asked whether I got kick for which I gave negative reply on that he again took me to the beer shop and made me to consume alcohol. We boarded the lorry: I intend to go to night duty on that day, we got down at the house of bondalollu", two other persons also get down from the lorry. After the departure of lorry, three persons beat me with sticks. (10) who are persons that beat you? We boarded the lorry: I intend to go to night duty on that day, we got down at the house of bondalollu", two other persons also get down from the lorry. After the departure of lorry, three persons beat me with sticks. (10) who are persons that beat you? ans: In the first instance, lorry cleaner prasad beat me with a stick on my neck, i fell down. Subsequently Dintakuru venkateswara Rao, who traveled along with us in the lorry and another person who is aged about 25 years whose name is not known to me and who can be identified by me on seeing him, beat me on the waist, legs. All the above three persons removed my banian and tied it around my neck. I lost consciousness. I do not know anything, they threw me in the wild bushes. " if really it is a fact that Venkateswara Rao, who was tried as first accused also beat him, why the deceased did not make a mention about him in the dying declaration marked as ex. P-20 is not known. Hence, all these dying declarations shall be looked into with care and caution. No doubt, in all the dying declarations, the name of the appellant finds place. But that alone shall not be the criteria to come to the conclusion that the appellant has committed the offence. In this context, it is necessary to refer to the Judgment in praveen Kumar s case (2 supra ). In para 10 of the said judgment, the learned Judges held that:"while appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truth fulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, However, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in thurukanni Pompiah and another v. State of Mysore, AIR 1965 SC 939 and khusal Rao v. State of Bombay, 1958 scr 552 ". In the absence of any corroborative evidence, reliance on the inconsistent dying declarations may not be correct in the light of the above Judgment. Hence, this Court is of the view that the submission of the learned counsel that the said dying declarations shall not be the basis for convicting the appellant is well founded. When once the dying declarations are eschewed from consideration, there remains the evidence of p. Ws. 1 and P. W. 8. No doubt, it is true that both these witnesses have clearly stated that the deceased was last seen in the company of the appellant, but that circumstance alone is not sufficient to hold that the appellant is guilty of the offence. The submission made by the learned Additional Public Prosecutor that when the said evidence is accepted, it is for the appellant to establish as to what had happened, in my considered view is not correct. No doubt, in the judgment referred to above by the learned Additional Public prosecutor, the Supreme Court has taken the view that it is for the accused to establish as to what happened to the dead body of the deceased. It is the rarest of the rare cases and definitely in such cases probably such a proposition can be laid. The Judgment relied upon by the learned Public Prosecutor can easily be distinguished. It was a case where a kidnapped boy was killed. About the said murder and the beating, there was sufficient evidence. It is the rarest of the rare cases and definitely in such cases probably such a proposition can be laid. The Judgment relied upon by the learned Public Prosecutor can easily be distinguished. It was a case where a kidnapped boy was killed. About the said murder and the beating, there was sufficient evidence. But, the evidence was to the effect that the said dead body was found and carried away by the accused therein. In that context the Supreme Court invoking Section 106 of the Evidence Act has observed that:"even otherwise, in our view, this is a case where Section 106 of the Evidence act would apply. Krishnanand chaudhary was brutally assaulted and then a Chhura blow was given on the chest. Thus chhura blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The appellants them carried away the body. What happened thereafter to krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the Court there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation, which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of mr. Mishra. "in fact, in the said Judgment also, the learned Judges were clear that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. We, therefore, see no substance in this submission of mr. Mishra. "in fact, in the said Judgment also, the learned Judges were clear that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. In view of the peculiar facts and circumstances of the case, the learned Judges invoked section 106 of the Evidence Act. If the argument of the learned Additional public prosecutor is accepted, in all criminal cases where the prosecution brings some evidence that the accused is guilty, the burden shifts on to the accused to establish that he is not guilty. That is not what the criminal jurisprudence intends. In fact, according to the established criminal jurisprudence, it is for the prosecution to bring home the guilt of the accused beyond all reasonable doubt and the evidence let in by the prosecution must be beyond the preponderance of probabilities. Hence, I am unable to accept the said submission that this is a case where section 106 of the Evidence Act has to be invoked and it is for the accused to establish that he is not guilty of the offence. ( 8 ) IN the instant case, simply basing on the evidence of P. Ws. 1 and 8 that the deceased was last seen in the company of the appellant, it cannot be said that the appellant alone has committed the alleged offence. P. Ws. 2, 3 and 4, the alleged eye witnesses, who have seen the deceased in the bushes and have spoken to him as to how he was thrown into bushes, did not support the case of the prosecution and were as such declared hostile. In the absence of any independent and corroborative piece of evidence, it is not safe to rely on the evidence of P. Ws. 1 and 8 alone to arrive at a conclusion that the appellant has committed the offence. ( 9 ) FOR the above reasons, this Court is of the view that the Judgment rendered by the court below in so far as the appellant herein is concerned is not correct and the appellant is also entitled to acquittal. 1 and 8 alone to arrive at a conclusion that the appellant has committed the offence. ( 9 ) FOR the above reasons, this Court is of the view that the Judgment rendered by the court below in so far as the appellant herein is concerned is not correct and the appellant is also entitled to acquittal. ( 10 ) THE criminal appeal is accordingly allowed and the conviction and sentence passed by the learned Sessions Judge against the appellant-second accused for the offence punishable under Section 304 (II) ipc in S. C. No. 27 of 1995 on his file, is hereby set aside and the appellant is acquitted of the same and he shall be set at liberty forthwith, if he is not required in any other case.