JUDGMENT (Per N.R.L. Nageswara Rao, J.) The sole accused in Sessions Case No.163 of 2006 on the file of Principal Sessions Judge, Eluru, West Godavari, who was convicted for the offence under Section 302 of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to undergo rigorous imprisonment for life and to pay a fine of 500/-, in default to undergo simple imprisonment for a period of six months, is the appellant herein. 2. The case of the prosecution is that the deceased, Gone Mariyamma, was the wife of PW.8. The marriage of the deceased with PW.8 was performed six years prior to the date of offence i.e., 07.11.2004 and they were blessed with a son. The accused developed intimacy with the deceased and a month prior to 07.11.2004, the deceased gave her gold ear studs to the accused on his personal request and the accused pledged them. A week prior to 07.11.2004, the husband of the deceased i.e., PW.8 was arrested by the Pedapadu police and was sent for remand. To arrange bail to her husband, the deceased requested the accused to return the gold ear studs, but the accused failed to return them and continued his intimacy with the deceased. The deceased warned the accused not to visit her house and discontinue the relationship with her. The accused grew wild and in pursuance of his anger against the deceased, on the night of 7/8.11.2004 during mid-night, he entered into the house of the deceased, poured kerosene on her and lit her to fire. On that, the deceased raised cries and the neighbours, PWs.1 to 6, came and they' put off the burns and saw the accused running away. The deceased was shifted to the Government Hospital, Eluru. Her statement was recorded by PW.11 and it was registered as a case in Crime No.156 of 2004, under Section 307I.P.C. by PW.16 and investigation was taken up. During the course of investigation, the scene of offence was observed, panchanama was conducted, statement of the deceased was recorded and the statement of other witnesses was also recorded. The dying declaration of the deceased was also recorded by PW.12, who is the Special Judicial Magistrate of First Class (Mobile Court), Eluru. On 11.11.2004 at about 08:30 AM, the accused was apprehended in presence of the mediators and the accused given a voluntary confessional statement with regard to commission of the offence. The dying declaration of the deceased was also recorded by PW.12, who is the Special Judicial Magistrate of First Class (Mobile Court), Eluru. On 11.11.2004 at about 08:30 AM, the accused was apprehended in presence of the mediators and the accused given a voluntary confessional statement with regard to commission of the offence. He was sent for remand. While undergoing treatment, the deceased died on 18.11.2004 at about 04:25 PM, and the Section was altered into one under Section 302 I.P. C. During the course of investigation, inquest was held over the dead body of the deceased and thereafter, it was sent for post-mortem examination. The material objects were sent to Forensic Science Laboratory for analysis. After getting the Forensic Science Laboratory report, a charge sheet was filed against the accused for the offence punishable under Section 302 I.P.C. The case was taken on file as P.R.C.No.29 of 2005 by the learned II Additional Judicial Magistrate of First Class, Eluru, and committed the same to the Court of Sessions. 3. After the appearance of the accused before the learned Sessions Judge, a charge under Section 302 I.P.C. was framed, read over and explained to him in Telugu and he pleaded not guilty. 4. On behalf of the prosecution PWs.1 to 20 were examined and Exs.P-1 to P-26 were got marked besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he did not adduce any defence evidence. 6. The learned Sessions Judge, after appreciating the evidence on record found the accused guilty of the offence for which he was charged and accordingly, convicted and sentenced him. Aggrieved by the same, the present Criminal Appeal, is filed. 7. Since the accused has no capacity to defend himself, Dr. K. Satyanarayana Rao has been appointed as legal aid counsel. Heard the legal aid counsel for the appellant and also the learned Public Prosecutor representing the state. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that the accused committed the murder of the deceased? 2) Whether the conviction and sentence recorded by the learned Sessions Judge is legal and sustainable? 9. Heard the legal aid counsel for the appellant and also the learned Public Prosecutor representing the state. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that the accused committed the murder of the deceased? 2) Whether the conviction and sentence recorded by the learned Sessions Judge is legal and sustainable? 9. In support of the prosecution case, PW.1, who is the brother of PW.8, who is the husband of the deceased, deposed that he came to know that the deceased was burnt to death at about 12:00 mid night and she was taken to the hospital and at that time PW.8 was in jail. According to him, the house of the accused was situated five houses away from his house and he did not speak anything about the nature of the information given by the deceased or the nature of the incident. He was declared as hostile by the prosecution. PW.2 is also said to be a neighbour and did not support the prosecution case and she was also declared as hostile. So also, PWs.3 and 4. PW.5 is no other than the brother of PW.8 and he also did not support the prosecution case about the nature of the incident and declared hostile. PW.6 is said to be a neighbour and also did not support the prosecution case and was declared as hostile. PW.7 also did not support the prosecution case. PW.8 is no other than the husband of the deceased and according to him, at the time of incident, he was in jail being convicted in a theft case and he was informed that his wife died of burns and was also further informed that she herself poured kerosene on her and set ablaze by herself. According to him, he saw his wife in the hospital and she was in a state of comma. He was also declared hostile by the prosecution. The evidence of PW.9 is about taking of the photos at the scene of offence. The evidence of PW.10 is also not in support of the prosecution case and was declared hostile. According to him, he saw his wife in the hospital and she was in a state of comma. He was also declared hostile by the prosecution. The evidence of PW.9 is about taking of the photos at the scene of offence. The evidence of PW.10 is also not in support of the prosecution case and was declared hostile. The evidence of PW.11 is that he is Police Constable attached to the Out Post at Government Hospital and on 08.11.2004 at about03:30 AM, he received intimation about the admission of the deceased and he recorded the statement of the deceased under EX.P17 and obtained certification of the doctor. In cross-examination, he stated that the deceased was not in a position to put her signature and the deceased received extensive burn injuries. He denied the suggestion that EX.PI7 was created by him in his Out Post Police Station. The evidence of PW.12, who is the then Special Judicial Magistrate of First Class (Mobile Court), Eluru, is about the recording of the dying declaration of the deceased under EX.PI9. The evidence of PW.13 is about his presence at the time of recording the statement by PW.11 and certifying it to the effect that the patient was conscious and coherent. The evidence ofPW.14 is about conducting postmortem examination and finding the following injuries and opining the cause of death: "Injuries: Neck Thorax abdomen full burns. Slough, Edema and inflammation, external genitalia, both upper limbs burnt, Lower limbs upto the Thigh burned. Face not burnt. Rigoer mortis present. Burns all over the body. Maggots all over the body. Internal Organs: Chest Symmetrical; no rib fracture. Pleval Cavity empty. Lungs: Voluminous C/s congested. Trachea of Brenchi and inflamed normal in size cut section congested;" The evidence of PW.15 is that he is a Police Constable, who was present at the time of post-mortem examination and he handed over the dead body of the deceased to the relatives of the deceased. The evidence of PW.16 is that he is an Assistant Sub Inspector of Police, Devarapalli Police Station. Earlier he worked as Head Constable in Pedavegi Police Station and he received the statement of the deceased recorded by PW.11 under EX.P.17 and registered the First Information Report and proceeded to the Government Hospital and examined the said injured Mariyamma and recorded her statement. He also spoke about the investigation done by him. Earlier he worked as Head Constable in Pedavegi Police Station and he received the statement of the deceased recorded by PW.11 under EX.P.17 and registered the First Information Report and proceeded to the Government Hospital and examined the said injured Mariyamma and recorded her statement. He also spoke about the investigation done by him. The evidence of PW.17 is about verification of the investigation and arresting the accused. The evidence of PW.18 is about his presence at the time of conducting inquest over the dead body of the deceased. The evidence of PWs.19 and 20 is about the investigation done by them in this case. 10. In this case, the learned counsel for the appellant contends that except the dying declarations, Exs.PI7 and PI9, relied on by the lower Court, there is absolutely no evidence about the accused causing the murder of the deceased; that the two dying declarations are not consistent and they cannot be taken as corroborative evidence and when there are circumstances pointing to suspicion about the manner of recording the dying declarations or the contentions therein, it is not safe to rely upon such dying declarations and convict the accused. He relied on decisions reported in State of Rajasthan v. Yusuf (1) 2009 (3) ALT (Crl.) 42 (SC) = 2009 (5) SCJ 388 = 2009 12 SCC 139 , wherein all the valid requirements to base a conviction on dying declarations were analyzed with reference to the earlier case law and Nallapati Sivaiah v. Sub-divisional Officer, GUl1tur, Andhra Pradesh (2) 2007 (3) AL T (Crl.) 253.(SC) = 2007 (7) SCJ 619 = 20103 SCC (Cri.) 560, wherein it is stated about the reliability of the dying declarations and the circumstances under which they should be relied or discarded. The learned counsel for the appellant also contends that the statement of the deceased recorded by PW.I6 after registration of the crime has been suppressed and it is also a dying declaration, which should have been produced before the Court and suppression of such statement will entitle the accused for benefit of doubt. 11. The learned counsel for the appellant also contends that the statement of the deceased recorded by PW.I6 after registration of the crime has been suppressed and it is also a dying declaration, which should have been produced before the Court and suppression of such statement will entitle the accused for benefit of doubt. 11. On the other hand, the learned Public Prosecutor supported the conviction of the appellant on the ground that there is absolutely no need for the deceased to implicate the accused in the crime and the identity of the accused cannot be doubted, since he is known to the deceased and the lower Court has rightly convicted the accused. 12. Evidently, before appreciating the contention of the learned counsel for the appellant, it is useful to extract the dying declarations Exs.P17 and 19, which are as follows: "Ex.PI7 Statement of Gone Mariyamma, W /o. Raju, age 25 years, Caste Mala, Pedapadu village, Pedapadu MandaI: My marriage had taken place about six years back. I had a male issue aged 3 years. My husband is working as coolie. Since my marriage, I had illegal contacts with another person by name Adam of Pedapadu. About one month back I have given my ear studs for pledging without the knowledge of my husband. On 06.11.2004 I asked Adam to release the ear studs and told her "why you are hesitating, I will release them". She told that "you shall release them or not you shall not come to me". Since one week my husband in jail. My husband is involved in a theft case. She stated to Adam that "you shall not come to me I shall live myself", he went away. Today i.e., on 7/8/-11.2004 night at 12 hours I felt my body was drenched, when I opened my eyes and found Adam it match stick on my body and running away. I am sleeping on the floor. My son is sleeping on the cot by my side. In the meanwhile, I raised cries and came out the neighbours Lella Martha, Lella Mary, Lella Soul, my brother in law, Anandarao, my mother-in-law, Tejaramma and Gudupudi Sujatha came and took me to the Government Hospital, Eluru for treatment, Doctor gave me treatment and joined. Then police came and recorded my statement read over to me and found correct. In the meanwhile, I raised cries and came out the neighbours Lella Martha, Lella Mary, Lella Soul, my brother in law, Anandarao, my mother-in-law, Tejaramma and Gudupudi Sujatha came and took me to the Government Hospital, Eluru for treatment, Doctor gave me treatment and joined. Then police came and recorded my statement read over to me and found correct. I put my thumb impressions as both my hands burnt." "Ex.P19 - Dying Declaration of Goone Mariyamma recorded by Magistrate Special Mobile Court, Eluru. At 7.00 A.M. on 08.11.2004 I received Government Hospital's intimation. Immediately I along with my attender Mr. Samson reached the Government Hospital and with the help of Duty Doctor, I reached the patient and recorded as belong at 7-20 A.M. What is your name? Goone Mariyamma. To which village you belongs? Pedapadu. Are you married? Married, 6 years back. What is your husband's name? Gone Raju. I am Magistrate, came from Court, can you identify me? Identifying. Are you able to give answers in sound disposing state of mind? Yes. How you are receiving the injuries? My husband is languished in jail in a theft case. I am having contacts with one Origala Adam of my village. I gave my ear studs to him for his necessities. Day before yesterday I stated to him I knew my mistake and no contacts between us. Yesterday night at 12-00 hours, myself and my son were in the house. I laid my son on the cot and myself on the floor. I forgot to put latch to the doors. Origala Adam came and poured kerosene on my body and lit matchstick. I received burn injuries. When I came out the surrounding people extinguished the flames. Do you wish to more? Do justice and prays compensation." With regard to the motive for commission of the offence by the accused, the statement of the deceased shows that she has got intimacy with the accused since long time and she has given her gold ear studs to the accused for pledging them without the know ledge of her husband and asked him to return the same. She also further claims to have stated that whether he returns the ear studs or not, he shall discontinue the relationship with her. This is said to be the cause of provocating the accused to commit the offence. She also further claims to have stated that whether he returns the ear studs or not, he shall discontinue the relationship with her. This is said to be the cause of provocating the accused to commit the offence. Evidently, during the course of investigation, no effort was made by the investigating officer to know as to whether exactly the gold ear studs said to have been given by the deceased were pledged by the accused and whether the money was utilized by the accused. This is the basic factor, according to the prosecution, driving the accused to commit the crime. In the absence of any effort made by the investigating officer to establish that fact, the mere assertion of the deceased in her statement cannot be given any weight, because it is a fact which could be established by letting in positive corroborative evidence by the prosecution. Therefore, the prosecution evidently did not bestow its attention. Even, otherwise, the only reason for the quarrel between the deceased and the accused is said to be the non-return of the ear studs and the objection raised by the deceased that the accused shall not continue the relationship with her. This objection raised by the deceased with the accused is said to be two days prior to the date of incident. Evidently, the relationship between the accused and the deceased has been continuing for a long time and it appears to be known to everyone. Therefore, any objection raised by the deceased to discontinue the relationship, which is two days prior to the incident, cannot be taken as a serious factor aggravating the conduct of the accused to go to the house of the deceased during night time and commit the murder. This is also one of the weak circumstances attributing the motive of the accused. Therefore, the second circumstance against the accused for commission of the offence appears to be weak. Coming to the dying declaration, Ex.PI7, recorded by the Head Constable, PW.11, is concerned, evidently, his statement does not show that he himself was personally satisfied with the mental condition and capacity of the deceased to give a statement. It may be true that at the end of the statement, the consciousness and coherency of the deceased was obtained under Ex.P18 from the doctor. It may be true that at the end of the statement, the consciousness and coherency of the deceased was obtained under Ex.P18 from the doctor. But, that is not sufficient and when a dying declaration is recorded by any person or by any Magistrate or third person, there should be evidence to show that the said person, who recorded or heard the statement of the victim, shall be satisfied that the person, who is giving such statement, has got sound' mind and also can understand the questions and answer the same. Evidently, such a version from PW.11 is not there. Furthermore, the statement Ex.P19 does not show that the deceased has requested the accused to release the ear studs and bring to her and even if he does not bring, he shall discontinue the relationship with the deceased. Therefore, there is variation of statements in Exs.P17 and P19 and a material statement as to the ear stud was brought on record is missing in Ex.P19, is rightly pointed out by the learned counsel for the appellant. Furthermore, it was during mid night and there is also no material to show that there was any light or other mode of identification of the person who entered into the house of the deceased and set fire to her. The possibility of not locking the house during night time and deceased was alone with the child is also remote as contended by the learned counsel for the appellant. Therefore, there is any amount of doubt as to the correctness of the statement EX.P17 recorded by the Head Constable and we have no hesitation in holding that the relevant statement EX.P17 is not found in Ex.P19, which is the statement recorded by the Magistrate. Both the statements are not corroborating about the intention of the accused to commit the offence. Furthermore, as per the evidence of PW.16, during the course of investigation, the statement of the deceased was said to have been recorded under 161 Cr.P.C., which itself is a dying declaration, has not been produced before the Court. As per the decisions reported inA. Furthermore, as per the evidence of PW.16, during the course of investigation, the statement of the deceased was said to have been recorded under 161 Cr.P.C., which itself is a dying declaration, has not been produced before the Court. As per the decisions reported inA. Savithramma and another v. State of Andhra Pradesh (3) 2009 (2) ALT (Crl.) 81 (DB)(A.P.) = 2009 (1) ALD (Crl.) 515 and Harijana Mulinti Bhushanna v. State of Andhra Pradesh (4) 2004 (2) ALT (Crl.) 571 (D.B.) (A.P.), suppression of the said statement entitles an adverse inference to be drawn against the accused. 13. Therefore, for all the above reasons and also for the reason that all the nearest relatives, who are said to have gone to the scene immediately after the incident, did not support the prosecution case nor they spoke anything about the accused committing the offence to find him guilty, the accused is entitled for reasonable benefit of doubt and accordingly, the conviction and sentence imposed by the learned Sessions Judge cannot be sustained. 14. In the result, Criminal Appeal is allowed setting aside the conviction and sentence recorded by Principal Sessions Judge, Eluru, West Godavari District, in Judgment, dated 08.01.2007, in Sessions Case No.163 of 2006, against the appellant/accused of the charge under Section 302 LP.C. The appellant/accused is found not guilty of the charge under Section 302 I.P.C. and accordingly, he is acquitted of the said charge. The appellant/accused shall be released forthwith, if he is not required to be detained in any other crime. The fine amount, if any, paid by the appellant/accused shall be refunded to him.