JUDGMENT : T. MEENA KUMARI, J.:— This appeal is directed against the judgment of the learned III Additional District and Sessions Judge (Fast Track Court), Kadapa in S.C. No. 99 of 2001, dated of 6-2-2004. whereby the appellant-A-1 was convicted of the offence punishable under Section 302 I.P.C., and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default to undergo Simple Imprisonment for six months. However, A-3 and A-4 were acquitted of the offence punishable under Section 302 of I.P.C. The case against A2 was separated and numbered as S.C. No. 192 of 2003 by the District and Sessions Judge, Kadapa. 2. The substance of the charge against the accused in that A-1 to A-4 on 22-9-2000 at about 10.30 a.m., while the deceased Balakrishnaiah, S/o. Kaki Narsaiah and Undayagiri Bala Kondaiah (L.W. 5) were grazing their bulls at “Gunjana”, came there and made an attempt to attack the deceased to kill him with daggers and that A-1, A-2 and A-4 stabbed him with daggers on his body while A-3 caught hold of him and that the deceased died on 22-09-2000 at about 6.45 p.m., and thereby, they committed an offence punishable under Section 302 read with 34 of I.P.C. 3. The case of the prosecution as unfolded during the trial is as follows: The accused as well as the deceased are residents of N.R. Puram Harijanwada of Penagaluru Mandal. While so, it is alleged that five months prior to the date of occurrence, when a dispute arose between the accused No. 1 and one Yentholi Subbaiah, the maternal uncle of the deceased, the deceased interfered and chastised the 1st accused. From that lime, the 1st accused bore grudge against the deceased. While so, on 22-9-2000 at about 8.00 a.m. U. Balakondaiah, P.W. 1 and the deceased took their bulls to Gunjana river of grazing. Then they tied their bulls to a fig tree and were cutting “Sajja Choppa”. At that time, in the adjacent lands, C. Bheemaiah, P.W. 3 was bundling the sajja choppa and one D. Yacob P.W. 4, was spreading the paddy hay for drying. Then one of the bulls freed itself and ran towards the river. Then they tied their bulls to a fig tree and were cutting “Sajja Choppa”. At that time, in the adjacent lands, C. Bheemaiah, P.W. 3 was bundling the sajja choppa and one D. Yacob P.W. 4, was spreading the paddy hay for drying. Then one of the bulls freed itself and ran towards the river. When P.W. 1 was trying to catch hold of it, A-3 and A-4 came from the opposite direction and A-1 and A-2 from the side of Gunjana river and questioned him as to why he told to beat the 1 st accused, he replied that he never told like that. When A-1 and A-2 went towards the deceased and questioned him as to why he told to stab him; the deceased replied that he did not say so. Then, A-1 and A-2 went towards the deceased and questioned him as to why he told to stab him; the deceased replied that he did not say so. Then, A-1 took out a dagger from his waist and stabbed the deceased on the left side of his chest. When P.W. 1 and the deceased raised cries, A-2 took out a dagger and stabbed the deceased on the left shoulder and A-1 stabbed him on his back. On hearing the cries, P.Ws. 3 and 4 came there and on seeing them, the accused ran away from the scene of offence. Then the deceased ran to some distance and fell down on the ridge of the land belonging to K. Yellaiah. As blood was oozing out, P.W. 4 tied lungi to the chest of the deceased., Then the deceased was taken to Penagaluru Police Station where the Sub-Inspector of Police, P.W. 11 recorded his statement and sent him to Government Hospital, Rajampeta. Basing on the statement of the deceased, P.W. 11 registered a case in Crime No. 42 of 2000. P.W. 7 is the Magistrate who recorded the dying declaration of the deceased at Government Hospital, Rajampeta. The deceased was thereafter shifted to S.V.R.R. Hospital, Tirupathi where he succumbed to those injures. P.W. 10, the Circle Inspector of Police, thereafter, conducted inquest on the dead body of the deceased. Thereafter, he sent the dead body to P.W. 9 for conducting post mortem examination. Subsequently, P.W. 10 arrested the accused and seized M.Os. 1 to 3, which are the weapons used in the commission of offence. P.W. 10, the Circle Inspector of Police, thereafter, conducted inquest on the dead body of the deceased. Thereafter, he sent the dead body to P.W. 9 for conducting post mortem examination. Subsequently, P.W. 10 arrested the accused and seized M.Os. 1 to 3, which are the weapons used in the commission of offence. After completion of investigation, he filed charge sheet in the Court. 4. The plea of the appellant-A1 is one of total denial. The prosecution in order to prove its case against the accused, examined P.Ws. 1 to 11 and got marked Exs.P. 1 to P-19 and M.Os. 1 to 7. One behalf of the defence, no oral or documentary evidence was adduced. The learned trial Judge, on appraisal of entire evidence, both oral and documentary, held that the prosecution has proved the offence under Section 302 of I.P.C. against A-1 and accordingly convicted and sentenced A-1 as stated supra. Aggrieved by the said conviction and sentence. A-1 preferred this appeal. 5. Learned counsel for the appellant-accused submits that the judgment of the trial Court is based on surmises and conjunctures and there is no evidence on record to show that the accused had committed the offences. He further contended that the trial Court ought not to have relied upon Exs.P-8 and P-15, which were recorded by the Magistrate as well as the investigating Officer. Since there are certain contradictions in the statements recorded by the Police as well as the Magistrate and since the other accused have been acquitted by the trial Court, the trial Court ought to have acquitted him also. He, therefore, prayed that the appeal be allowed. 6. On the other hand, the learned Additional Public Prosecutor submitted that in Exs.P-8 and P-15, dying declarations recorded by the Magistrate as well as the investigating Officer, the deceased has specifically mentioned the name of A-1. In view of the fact that there is no other evidence available on record to implicate the other accused, the trial Court is justified in convicting the appellant-accused for the offence with which he was charged. He, therefore, submits that the findings of the learned trial Judge are quite legal, valid and they do not require any interference. 7. Now, let us peruse the evidence adduced by the prosecution. 8. P.W. 1 is the resident of N.R. Puram Harijanawada of Penagalur Mandal. He, therefore, submits that the findings of the learned trial Judge are quite legal, valid and they do not require any interference. 7. Now, let us peruse the evidence adduced by the prosecution. 8. P.W. 1 is the resident of N.R. Puram Harijanawada of Penagalur Mandal. In his evidence, he deposed that on 22-09-2000 himself and the deceased took their bulls for the purpose of grazing. Then they tied their bulls to a fig tree and were cutting “Sajja Choppa”. At that time, in the adjacent lands, C. Bheemaiah, P.W. 3 was bundling the sajja choppa and one D. Yacob, P.W. 4 was spreading the paddy hay for drying. Then one of the bulls freed itself and ran towards the river. When he was trying to catch hold of it. A-3 and A-4 came from the opposite direction and A-1 and A-2 from the side of Gunjana river and questioned him as to why he told to beat the 1st accused, he replied that he never told like that. Then A-1 and A-2 went towards the deceased and A-1 questioned him as to why he told to stab him; the deceased replied that he did not say so. Then, A-1 stating that he will show how to slab, took a dagger from his waist and stabbed the deceased on the left side of his chest. When himself and the deceased raised cries. A-3 and A-4 closed his mouth and then A-2 took out a dagger and stabbed the deceased on the left shoulder and A-4 stabbed him on his back. On hearing the cries, P.Ws. 3 and 4 came there and on seeing them, the accused ran away from the scene of offence. Then the deceased ran to some distance and fell down on the ridge of the land belonging to K. Yallaiah, As blood was oozing out, P.W. 4 tied a lungi to the chest of the deceased, then, himself, P.W. 4 and P.W. 3 brought the deceased in the cart of one Avula Narsimhulu to the village and on their way to village, the parents of the deceased had met them and questioned as to what has happened. Then they informed them about the said incident. Thereafter, they shifted him into a jeep and took him to Pengalur Police Station where the Sub-Inspector of Police recorded his statement and registered a case. Then they informed them about the said incident. Thereafter, they shifted him into a jeep and took him to Pengalur Police Station where the Sub-Inspector of Police recorded his statement and registered a case. Then the deceased was shifted to Government Hospital, Rajampet where the learned Magistrate recorded the statement of the deceased. Thereafter, the deceased was shifted to Government Hospital, Triupathi where the deceased succumbed to those injuries. 9. So far as motive is concerned, P.W. 1 stated in his evidence that two months prior to the date of offence, one Yantholi Subbaiah, material uncle of the deceased pressed the foot of first accused at Chakka Bajana in the village and then the deceased interfered on his behalf. The 1st accused, therefore, bore grudge against him when a suggestion was put to him that the said Chakka Bhajana took place about five months back, he denied the same. 10. P.W. 2 is the father of the deceased. In his evidence, he deposed that on the date of incident, himself and his wife were at their house. Then, his son and P.W. 1, went to the fields at Ganjana river to graze the bulls. While so, at about 10.45 a.m., one Gorla Narayana of their village informed him that his son was murdered by the accused. Thereafter, when himself and his wife were running towards. North of their village, on their way, they found P.W. 1, P.W. 3 and P.W. 4. When he questioned P.W. 1 as to what has happened, then he informed him that A-1 to A-4 have stabbed the deceased. Then they took, the deceased to Pengalur Police Station where the Sub-Inspector of Police recorded his statement. Thereafter the Magistrate recorded his statement. So far as motive is concerned, he supported the version of P.W. 1. Since he has not witnessed the incident, nothing worthwhile could be elicited from him. 11. P.Ws. 3 and 4 are not direct witnesses to the incident. In their evidence, they spoke about the presence of P.W. 1 as well as the accused at the scene of offence. They further stated that when they heard the cries from the side of fig tree near Gunjana river, they ran towards that side and then they saw P.W. 1 and the deceased running towards them. They were being chased by A-3 and A-4. On seeing them, A-3 and A-4 ran towards fig tree. They further stated that when they heard the cries from the side of fig tree near Gunjana river, they ran towards that side and then they saw P.W. 1 and the deceased running towards them. They were being chased by A-3 and A-4. On seeing them, A-3 and A-4 ran towards fig tree. They also found A-1 and A-2 at the fig tree. Then, they all ran towards Gunjana river. Though they are not direct witnesses to the incident, but, in their evidence, they have categorically stated about the deceased received injuries and about the presence of the accused as well as P.W. 1. at the scene of offence. Therefore, we do not find any reason to disbelieve their evidence. Their evidence also supports the version of P.W. 1. 12. P.W.-7. is the Magistrate who recorded the statement of the deceased under Ex. P-8. He deposed in his evidence that on 22-9-2000 on receipt of intimation from Government Hospital, Rajampet, he went there and putting some preliminary questions to the deceased, he was satisfied that the deceased was in a fit state of mind to give a statement. Then he recorded the Statement of the deceased under Ex. P-8, which reads thus: “Q. 8) What happened to you? A. Today in the morning itself I took bulls to our fields. Then after some time, I tied bulls to a tree in my fields. I think to go to home. At that moment, two persons by name Nagarjuna, Haribabu came. They also belong to our village. I went to fields of Bala Kondaiah, Bala Kondaiah also present in the fields with me. A-1 that time Bala Hondaiah and Haribabu talking together. At that time Subbaiah, who belongs to our villager came there. Jayaramaiah followed him. At that time. Subbaiah questioned Bala Kondaiah that “you have said that you will beat me now beat me. I will see. Then Subbaiah came to me and asked you said that you will stab me. Now stab. I will see, I have not told that I said to Subbaiah. Then Subbaiah saying that now will stab and stabbed with dagger on my chest. At that time, Bala Kondaiah who is in my side shouted. At that moment, Nagarjuna, Haribabu closed his mouth. Then I fallen down. Now I got consciousness at Hospital.” 13. Now stab. I will see, I have not told that I said to Subbaiah. Then Subbaiah saying that now will stab and stabbed with dagger on my chest. At that time, Bala Kondaiah who is in my side shouted. At that moment, Nagarjuna, Haribabu closed his mouth. Then I fallen down. Now I got consciousness at Hospital.” 13. P.W. 9 is the doctor who conducted autopsy over the body of the deceased and found the following injuries; 1. Sutured wound of 3 cm. length, 5 cm., to the right and 2 cm., above the level of left nipple 3 black sutures. This wound entered chest cavities through the 3rd left inter costal space and made a dent of 3 cm., in the pericardium and made a stab wound of 2.5 c.m., × 0.7 cm., over the upper part of left ventricle entered the cavity. 2. Abrasion of 10 × 0.5 cm., over the upper part of left shoulder obliquely placed. 3. Abrasion of 2×1 cm., over the outer aspect of right hip. 4. Sutured wound of 2 cm., length with two black sutures over the left side of back of lower part of chest near to the spine, did not enter the cavity. 5. Abrasion of 8 × 0.5 cms., over the middle of left thing outer aspect obliquely placed. 6. Incised injury of 3 × 0.5 cms., × skin deep over the middle of outer aspect of left arm. 7. Incised injury of 3 × 0.5 cm. × skin deep over the left thener area. 14. All the above injuries are ante mortem in nature. Ex. P-10 is the Post mortem Certificate issued by him. He opined that the deceased appeared to have died of stock and haemorrhage due to stab injury to the heart. He further opined that injury No. 1 is sufficient to cause the death of the deceased in the ordinary course. 15. P.W. 10 is the Inspector of Police whose evidence is formal in nature since he examined the witnesses conducted inquest, prepared the rough sketch and seized M.Os. 5 to 7 from the dead body of the deceased. He also spoke about the arrest of the accused. 16. P.W. 11 is the Sub-Inspector of Police who recorded the statement of the deceased on 22-09-2000 at about 12 noon under Ex. 5 to 7 from the dead body of the deceased. He also spoke about the arrest of the accused. 16. P.W. 11 is the Sub-Inspector of Police who recorded the statement of the deceased on 22-09-2000 at about 12 noon under Ex. P-15 which reads thus: “On 22-9-2000 Friday morning at about 8.00 a.m., for grazing bulls I went to Gunjana and after grazing the bulls, we tied bulls to a tree for some time and stayed. In the meanwhile, through the gunjana edge. I. Kaki Subbaiah, Penchalaiah, 2. Dasari Rama-chandraiah, 3. Siddam Nagarjuna, S/o. Penchaliah, 4. Davarapalli Haribabu, S/o. Chennaiah of our Harijanwada, people by shouting saying by catching “Eenakoduku Balakrishnaiah” and kill him by saying that by keeping dagger in their hands when came near us and about to run being afraid, Kaki Subbaiah, with the dagger in his hands stabbed on my left chest. Then Dasari Ramachandaiah stabbed on my left shoulder above with dagger. In the meanwhile, when Siddam Nagarjuna caught me Deverapalli Hari Baby, with dagger and stabbed on my back and got blood injuries and I cried loudly there Udaygiri Balakrishnana who was grazing the bulls ran and came to me the said four accused ran away.” 17. In the above dying declaration recorded by the Sub-Inspector, the deceased has clearly mentioned the names of A-1 to A-4, whereas in the dying declaration recorded by the Magistrate under Ex. P-8, he mentioned that only A-1 and A-2 have attacked him. Therefore, there are inconsistencies in the two dying declarations of the deceased. 18. Thus, there are contradictions and infirmities in the two dying declarations. In view of the various contradictions and infirmities as pointed out in the statements recorded by the investigating Officer as well as the Magistrate. 19. Further, it is seen from the medical evidence adduced by the doctor, that two injuries were found on the chest region, namely, injury Nos. 1 and 4, which are sutured wounds. According to the doctor, injury No. 1 is sufficient to cause the death of the deceased in the ordinary course. Inquiry No. 4 has not been explained by the doctor. According to the prosecution, A-1 has attacked the deceased with a dagger on the chest. Even though A-1 had attacked the deceased with a dagger, the prosecution had not been able to show that A-1 has such an intention to kill him. Inquiry No. 4 has not been explained by the doctor. According to the prosecution, A-1 has attacked the deceased with a dagger on the chest. Even though A-1 had attacked the deceased with a dagger, the prosecution had not been able to show that A-1 has such an intention to kill him. Hence, we cannot find him guilty of the offence with which he was charged. 20. In the circumstances, we are of the view that the case at best would fall under Section 304 part-II, but not under Sec. 302 I.P.C. Therefore, we are inclined to modify the conviction and sentence recorded by the trial Court against Appellant-Accused No. 1. 21. Accordingly, the conviction and sentence recorded by the trial Court against the Appellant-Accused No. 1 for the offence under Section 302 of I.P.C. is set aside. Instead, he is convicted under Section 235(1) Cr.P.C. for the offence under Section 304 Part-II of I.P.C. and sentenced to undergo Rigorous imprisonment for five years. He shall be set at liberty forthwith, if he is not required in any other case. The period of sentence undergone by the appellant-accused shall be given set off under Section 428 of Cr.P.C. 22. The appeal is accordingly allowed.