JUDGMENT : T. MEENA KUMARI, J.:— Challenging the conviction and the sentence in S.C. No. 454 of 2000 on the file of the learned I Additional District & Sessions Judge, Krishna District, Machilipatnam, by which the appellant-A1 was found guilty of the offence under Section 302 I.P.C. and convicted and sentenced to undergo Imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for one year, the present appeal is preferred by the appellant-A-1. 2. The brief facts that are necessary for disposal of the present appeal, may be stated as follows: One Gunduboyia Prabhavathi, (hereinafter referred to as ‘the deceased’) is the wife of the appellant-A1 and their marriage took place about three years prior to the incident. Out of their wedlock, they got one daughter and they were living separately in Meerjapuram village. At the time of their marriage, the mother of the deceased gave Rs. 7,000/- as dowry. A-1 and the deceased kept the said amount with the mother of the deceased. A-1. used to harass the deceased to bring back the said amount from her mother. 3. While so, on 15-12-1999, at about 4.00 p.m., while the deceased was alone, one Gunduboyina Sreenivasarao (A-2 in the above Sessions case), who is no other than the elder brother of A-1, entered into the house of the deceased and caught hold of her hand with an intention to have sex with her. While she was resisting, A-1 came into the house. Then, A-2 fled away. Thereafter, A-1 suspecting the fidelity of the deceased abused her and beat her throughout the night. On the next day viz., 16-12-1999 at about 11.00 a.m., A-1 brought kerosene and poured it on the body of the deceased and set fire uttering that she is not bringing the dowry amount from her mother and she is having illicit intimacy with A-2. After setting fire, A-1 came out of the house and raised cries as if the deceased herself set fire to herself. On hearing the cries of the deceased, neighbours came and put off the fire. After setting fire, A-1 came out of the house and raised cries as if the deceased herself set fire to herself. On hearing the cries of the deceased, neighbours came and put off the fire. Then, she was taken to a private hospital and from there, she was shifted to Government Hospital, Eluru, On intimation, the Police as well as the Principal District Munsif, W.G. District, Eluru recorded the statement of the deceased and a case in Crime No. 146 of 1999 for the offences under Sections 324 and 307 IPC was registered initially and investigated into. On 17-12-1999, the deceased succumbed to injuries while undergoing treatment. During the course of the investigation, inquest and post-mortem examination were held over the dead body of the deceased. After completion of the investigation, a charge sheet has been filed. After filling the charge sheet, the learned Judicial First Class Magistrate, Nuzvid, committed the case to the Court of Sessions, Krishna Division, Machilipatham. The learned Sessions Judge took it as a Sessions case and made over the same to the learned I Additional District & Sessions Judge, Krishna Division, Machilipathnam for disposal. 4. The charges levelled against the appellant-A1 are as follows: Firstly: “A-1 being the husband of the deceased Gunduboyina Prabhavathi, prior to her death on 16-12-1999, subjected her to cruelty to bring back Rs. 7,000/- which was kept with her mother and which was given towards dowry at the time of marriage, and thereby committed an offence punishable under Sec. 498-A(iii) IPC. Secondly: “On 16th day of December, 1999 at about 11.00 a.m., A1 at his house in Meerjapuram, did commit murder of his wife by pouring kerosene and set fire with a match stick, in connection with the demand of dowry of Rs. 7,000/- which was kept at the mother of the deceased and by suspecting her character, and thereby committed an offence punishable under Section 302 IPC.” 5. When the charges were read over and explained to the accused, he pleaded not guilty. 6. In order to substantiate its case, the prosecution has examined P.Ws. 1 to 13 and got marked Exs.P-1 to P-21 besides material objects M.Os. 1 to 4. Relevant portions in the Section 161 Cr.P.C. statements of P.W. 2 and P.W. 7 were marked as Exs.D-1 and D-2 respectively. 6. In order to substantiate its case, the prosecution has examined P.Ws. 1 to 13 and got marked Exs.P-1 to P-21 besides material objects M.Os. 1 to 4. Relevant portions in the Section 161 Cr.P.C. statements of P.W. 2 and P.W. 7 were marked as Exs.D-1 and D-2 respectively. After closure of the prosecution evidence, A-1 along with another accused was subjected to examination under Section 313 Cr.P.C. by putting incriminating circumstances deposed against him by the witness of the prosecution. The plea of the accused is of total denial. No oral or documentary evidence was adduced on behalf of the accused. 7. On appreciation of the evidence on record, the trial Court while acquitting A-1 for the offence under Section 498-A(iii) I.P.C. found the appellant-A-1 guilty of the charge under Section 302 IPC and convicted and sentenced him to undergo the sentenced stated supra. Having aggrieved by the same, the present appeal is preferred by A-1 alone. Therefore, the entire case in this case is being proceeded with against A-1 alone. 8. Heard Smt. A. Gayathri Reddy, learned Counsel appearing for the appellant-A-1 and the learned Public Prosecutor appearing on behalf of the State. 9. The learned Counsel for the appellant-A-1 contented that there is no direct evidence to show that the accused is the assailant of the deceased and that the judgment under appeal is full of surmises and conjectures, but the mere surmises and conjectures cannot be a base for conviction. It is further contended that the deceased was in an unconscious state of mind in the hospital and Ex. P-4 clearly establishes the same and therefore, the dying declarations cannot be believed and that the motive attributed against the accused was not established by the prosecution. Hence, the conviction and the sentenced are liable to be set aside. 10. It is further contended that the deceased was in an unconscious state of mind in the hospital and Ex. P-4 clearly establishes the same and therefore, the dying declarations cannot be believed and that the motive attributed against the accused was not established by the prosecution. Hence, the conviction and the sentenced are liable to be set aside. 10. On the other hand, it is contended by the learned Public Prosecutor that the dying declarations recorded by P.W. 7 and P.W. 12 clearly establish that it is the accused, who poured kerosene and set fire to the deceased and the dying declarations are not the outcome of tutoring and prompting by any person and that there was a motive for the accused to commit the murder since he was suspecting the fidelity of the deceased and therefore, the trial Court rightly found the accused guilty of the offence under Section 302 IPC and there are no grounds to interfere with the judgment under appeal. 11. Before going to deal with this appeal, it is not out of place to mention that in the above Sessions Case, the appellant-A-1 was charged for the offences under Sections 498-A(iii) and 302 IPC. The trial court while acquitting the accused for the charge under Section 498-A(iii) IPC, convicted and sentenced him for the offence under Section 302 IPC. Challenging the conviction and the sentence imposed for the offence under Section 302 IPC, the present appeal has been preferred by A1 alone. 12. At the Every outset, it has to be seen as to whether the death of the deceased is homicidal in nature. 13. In this regard, the evidence of P.W. 13-Medical Officer, who conducted autopsy over the dead body of the deceased on 18-12-1999 at 2.00 p.m. and issued Ex. P-16-P.M. Certificate along with other doctor, the evidence of P.W. 10-M.R.O., Nuzvid, who conducted inquest over the dead body of the deceased and Ex. P-11 inquest panchanama, is relevant for consideration. 14. The testimony of P.W. 13 goes to show that he along with another doctor conducted post mortem over the dead body of the deceased and found the following injuries: External: Scalp hair signed in frontal and parietal region; Superficial to deep burnt injuries present over face, neck front and back, whole back both upper limbs including palms. 14. The testimony of P.W. 13 goes to show that he along with another doctor conducted post mortem over the dead body of the deceased and found the following injuries: External: Scalp hair signed in frontal and parietal region; Superficial to deep burnt injuries present over face, neck front and back, whole back both upper limbs including palms. Both thighs, both legs, upper abdomen burns about 80% to 85%, Red area of demarcation present between burnt and unburnt area. Skin charred, Epidermis peeled of in most areas. Interal: Thoracic Cavity intact. Trachea & Bronchi congested. Both lungs normal size Cut section congested. Frothy bloody discharge coming out. Heart normal size cut section clotted blood present in the chambers. Large blood vessels normal. Abdomen: Stomach containing 200 ml. of semi digested rice food present, liver normal size cut section congested. Spleen normal size cut section congested. Both Kidneys normal size cut section congested. Urinary bladder empty, uterus normal size, cut section empty. Head and neck: Scalp hair signed, reinal cavity intact. Meninges congested, brain normal size congested, Hyoid intact no facture. Thorax Normal congested spin intact. 15. According to the Medical Officer, the deceased would have died of shock due to extensive burns. From his cross-examination, it is elicited that he did not find any kerosene smell. In this view of the matter, we have no other go except to hold that the deceased died of burns. 16. Now, it has to be seen as to whether it is the accused, who is the assailant of the deceased or not. 17. In this regard let us examine the veracity of the prosecution witnesses viz., P.W. 1 and P.W. 2 and the dying declarations. 18. P.W. 1, who is the mother of the deceased, is working as a maid-servant in the hospital belonging to Dutta Ramachandrarao (P.W. 6). According to her, A-1 and the deceased were residing separately in a separate portion of the house belonging to the father of the accused. According to her, by the time of shifting the dead body to a private hospital where she was working, the deceased was conscious and when P.W. 1 asked the deceased as to the happening of the incident, she replied that on the previous day, while the deceased was alone, A-2 caught hold of her hand. While she was resisting, A-1 came into the house. Then, A-2 fled away. While she was resisting, A-1 came into the house. Then, A-2 fled away. Thereafter, A-1 abused and beat her suspecting her fidelity and on the next day, A-1 poured kerosene and set fire. 19. P.W. 2, who is no other than the sister of P.W. 1, deposed that on the date of incident, P.W. 1 asked her to come with her to Meerjapuram on the premise that she received a phone call from Meerjapuram that the deceased and A-1 were quarreling. According to her, when they were thinking to go to Merrjapuram, the deceased was brought to the hospital. When they asked the deceased as to the incident, she replied that A-2 caught hold of her hand and noticing the same, A-1 beat her suspecting her fidelity and on the date of incident, A-1 poured kerosene and set fire to her. 20. According to P.Ws. 1 and 2, the reason spoken to by them as to causing of burns to the deceased, is with regard to the misbehaviour of A-2. Apart from that, the private doctor viz., P.W. 6, who referred the deceased to the Government Hospital, did not speak anything except deposing as to the burns sustained by the deceased. If really, according to P.Ws. 1 and 2, they could know the reason for burn injuries from the deceased, P.W. 6, who is the Doctor of that private Hospital, ought to have spoken to that effect. But, his evidence is silent in this regard. 21. P. Ws. 3, 4 and 5 turned hostile. Though they are declared as hostile witnesses, it is well settled that if any part of the evidence of hostile witness inspires confidence, it can be used as corroboration. According to their testimony, the accused and the deceased lived happily and there were no disputes between them. According to them, the incident in question is nothing but an accident. 22. Yet another important evidence in the instant case is dying declaration. 23. P.W. 7, who is Head Constable, recorded the statement of the deceased under Ex. P-4. A perusal of his testimony goes to show that on receipt of intimation from the hospital, he went there and recorded the statement of the deceased after obtaining the certificate from the doctor about the condition of the patient. But perusal of Ex. 23. P.W. 7, who is Head Constable, recorded the statement of the deceased under Ex. P-4. A perusal of his testimony goes to show that on receipt of intimation from the hospital, he went there and recorded the statement of the deceased after obtaining the certificate from the doctor about the condition of the patient. But perusal of Ex. P-4 falsifies his testimony inasmuch as the statement was alleged to have been recorded at 3 p.m. whereas the endorsement as to the consciousness of the deceased was made by the Doctor at 4.25 p.m. 24. Insofar as Ex. P-14 dying declaration is concerned. P.W. 12-the then learned Magistrate recorded the statement of the deceased. A perusal of his testimony goes to show that he recorded the statement of the deceased after obtaining the certificate from the doctor as to the condition of the deceased. 25. Ex. P-14 also goes to show that the learned Magistrate started recording the statement at 3.20 p.m., and completed the same by 3.40 p.m. Ex. P-15 endorsement made by the Doctor goes to show that the same was made at 3.40 p.m. According to the said endorsement, it is not known as to whether the deceased was conscious at 3.20 p.m. or not. 26. The evidence of hostile witnesses P.Ws. 3 to 5 goes to show that they heard cries from the house of A-1. According to their evidence, the appellant-A-1 was present and was extinguishing flames by pouring water by the time they rushed to the place of incident. These witnesses are independent one and nothing has been elicited from their testimony to disbelieve their evidence. 27. The endorsement made by the Doctor subsequently after recording of the dying declarations by the Head constable as well as the learned Magistrate leads to draw an inference that the Doctor might not have been present at the time of recording the statement. Therefore, We feel that much sanctity cannot be attached to the dying declarations. 28. In a case of this nature wherein the guilt of an assailant is sought to be established by way of circumstantial evidence, when two views are possible on the evidence adduced in the cases, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be drawn. 29. Admittedly, the mother and maternal aunt of the deceased (P.Ws. 29. Admittedly, the mother and maternal aunt of the deceased (P.Ws. 1 and 2) were present from the time of deceased joining in the private hospital. In such a view of the matter, We feel that there would be every possibility and likelihood of their tutoring the deceased. 30. Apart from that, though it is the case of the prosecution that the appellant poured kerosene and lit fire, the medical evidence goes to show that no kerosene smell was found on the body of the deceased. 31. In the above facts and circumstances of the case and in the absence of any direct or circumstantial evidence, We feel that it is a fit case wherein the benefit of doubt can be given to the accused entitling him to the acquittal. In this view of the matter, the conviction and the sentence imposed against the accused by the Court below are liable to be set aside. Accordingly, this Criminal Appeal is allowed. Consequently, the conviction and the sentence insofar as the appellant-A-1 is concerned, are set aside. 32. The appellant-A-1 shall be released forthwith, if he is no longer required in any other case.