JUDGMENT (Per N.V. Ramana, J.) This appeal is directed against the judgment dated 28.04.2006, passed in S.C. No. 264 of 2005 by the X Additional District and Sessions Judge, Guntur at Narsaraopet, convicting the appellant-sole accused for the offence punishable under Section 302 IPC, and sentencing him to suffer imprisonment for life and pay fine of Rs. 1,000/- in default, to undergo imprisonment for six months. 2. The deceased, namely Darivemula Prabhudas, is a resident of Ambedkar Nagar, Vinukona. He belongs to Madiga caste. He was having illicit intimacy with one Shaik Shahjahan, the sister of the accused, since four years, and that a month prior to 22.10.2004, he had eloped with her to Chilkaluripet. The elders and relatives of the deceased searched and traced the deceased and the sister of the accused and brought them back to Vinukonda. The elders admonished them and pacified the issue by advising the deceased and the sister of the accused to discard their illicit intimacy and live separately and sent them to their respective houses. Since then, the deceased is said too have discontinued his illicit intimacy with Shahjahan. Due to illicit intimacy of the deceased with Shahjahan, her husband deserted her and she is residing in the house of the accused along with her children. The deceased, is said to be in the habit of calling the accused as brother-in-law much to his displeasure. Due to this, the accused waited for an opportunity to kill the deceased as he was responsible for spoiling the life of his sister Shahjahan. 3. While so, on 22.10.2004 at about 6.00 pm while the deceased was proceeding towards Lakshmi Talkies Centre, Vinukonda from his house through Railway Gate, and on his reaching Yenugupalem Bus Stop Centre, Vinukonda, and observing that the deceased was alone, the deceased attacked the deceased, he picked up a knife from his pocket and stabbed the deceased on his stomach and left hand thrice, as a result of which, the deceased sustained severe bleeding injuries. L.W. 2, namely Darivemula Kotaiah, P.W. 4 and L.W.7, namely Sampengula Yerra Kotaiah and other pedestrians witnessed the incident and when they rushed to the scene of offence, the accused fled holding the a knife in his hand. 4. Then L.W.2 and P.W. 4 shifted the deceased to Government Hospital, Vinukonda for treatment. P.W.12, namely Dr. L.W. 2, namely Darivemula Kotaiah, P.W. 4 and L.W.7, namely Sampengula Yerra Kotaiah and other pedestrians witnessed the incident and when they rushed to the scene of offence, the accused fled holding the a knife in his hand. 4. Then L.W.2 and P.W. 4 shifted the deceased to Government Hospital, Vinukonda for treatment. P.W.12, namely Dr. Santosh Kumar, treated the deceased and sent an admission intimation to the Station House Officer, Vinukonda Police Station. On 22.10.2004, P.W.13-Head Constable on receipt of the intimation, visited the Government Hospital, Vinukonda and he recorded the statement of the deceased from 8.00 pm to 8.30 pm and returned to the Police Station, and handed over the statement of the deceased to P.W.14-Sub-Inspector of Police. Thereafter, P.W.12, referred the deceased to Government General Hospital, Guntur, for expert treatment. 5. Initially, based on the intimation of admission and the statement of the deceased, P.W. 14 registered a case in Crime No. 237 of 2004 for the offence under Section 324 IPC and took up investigation. During the course of investigation, he visited the scene of offence, prepared rough sketch of the scene of offence and drafted observation report in the presence of mediators, namely P.W.9 and L.W.12. He then examined P.W.1, L.W.2, P.W.2, P.W.3, P.W.4, P.W.6, L.W.7 and P.W.7 as also the deceased and recorded their statements and seized the blood stained shirt of the deceased under police proceedings. 6. While so, on 27.10.2004, at about 2.45 am, the deceased died while undergoing treatment in Government General Hospital, Guntur. P.W.11, then sent death intimation to P.W.10-Head Constable, who in turn had sent the same to Vinukonda Police Station at 9.30 am. Based on the death intimation, P.W.14 altered the section of law from Section 324 IPC to Section 302 IPC, and took up investigation. 7. On 27.10.2004; P.W.14 visited the Government General Hospital, Guntur, and held inquest over the dead body of the deceased from 1.00 pm to 3.00 pm in the presence of P.W.9, L.W.10 and one Surabhi Kanakaratnam, and thereafter, sent the dead body of the deceased for post-mortem examination. P.W.5-Dr. P. Akineedu Prasad, conducted autopsy over the dead body of the deceased and issued post-mortem certificate, opining the cause of death of the deceased as due to multiple injuries. Thereafter, P.W.15 verified the investigation done by P.W.14 and took up further investigation. P.W.5-Dr. P. Akineedu Prasad, conducted autopsy over the dead body of the deceased and issued post-mortem certificate, opining the cause of death of the deceased as due to multiple injuries. Thereafter, P.W.15 verified the investigation done by P.W.14 and took up further investigation. During the course of investigation, P.W.15 arrested the accused on 30.10.2004 at 12.00 noon at Railway Station, Vinukonda, in the presence of P.W.9 and L.W.12 and recorded the confessional statement of the accused and seized a steel knife from his possession. Thereafter, he produced the accused before the Magistrate concerned, who remanded him to judicial custody. P.W.15 sent the material objects, namely the blood stained shirt of the deceased and blood stained knife seized from the accused to FSL, Hyderabad and report is awaited. 8. The learned Sessions Judge has framed charge under Section 302 IPC against the accused, for which the accused pleaded not guilty and claimed to be tried. 9. In order to establish the said charge, the prosecution examined P.Ws. 1 to 15 and got marked Exs. P1 to P21 and M.Os.1 and 2. On behalf of defence, no oral evidence was adduced, but Ex. D1, underlined portion in Section 161 Cr.P.C. statement of P.Ws. 1, 2, 3 and 7 were marked. 10. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1,000/- and in default to undergo imprisonment for six months. 11. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. 12. Now the point that arises for consideration in this criminal appeal is: 13. Whether the prosecution could establish the charge under Section 302 IPC against the accused beyond reasonable doubt? 14. According to the prosecution, the motive for the accused to kill the deceased is that the deceased had illicit intimacy with the sister of the accused and that a month prior to the date of incident, he eloped with his sister and as a result of his elopement, the husband of his sister deserted her and her life is ruined. The prosecution to prove its case, has examined P.Ws. 1 to 15. 15. The prosecution to prove its case, has examined P.Ws. 1 to 15. 15. P.W.1 is a relative of the deceased and resident of Ambedkar Colony, P.W. 2 is the mother of the deceased, P.W.3, is a Rickshaw Puller and a resident of Ambedkar Colony, P.W.4 runs a Barber Shop near Yengugupalem, P.W.5 is the Doctor who conducted autopsy over the dead body of the deceased, P.W.6 runs a Tea Stall near Yenugupalem, P.W.7 is also a Rickshaw Puller and resides in Ambedkar Colony, P.W.8 is a Carpenter, who signed on Ex.P5-inquest report, P.W.9 is the Panchayat Secretary, who signed on Ex.P6-scene of offence and observation report, P.W.10 is the Head Constable, who received intimation and sent Exs. P8 and P9 to the Police Station along with endorsement under Ex.P10, P.W.11 is the Doctor, who confirmed the death of the deceased, P.W.12 is the Doctor, who referred the deceased to Government General Hospital, Guntur, P.W.13 is the Head Constable, who received Ex. P12 from P.W.12 and recorded Ex.P13-statement of the deceased, P.W.14 is the Sub Inspector of Police and P.W.15 is the Inspector of Police. They conducted investigation. 16. P.W.1, who is an eye-witness to the incident, in his evidence stated that the deceased is a Carpenter by profession. That on 22.10.2004 at 6.00 pm, while the deceased was going to Lakshmi Hall Centre for getting his wages, and on reaching Yenugupalem Bus Stop near the Tea Stall of P.W.6, the accused stabbed the deceased on his abdomen, right side of chest, right arm pit and on left wrist. Then immediately, himself and P.W.3, who were sipping tea in the Tea Stall of P.W.6, rushed towards the deceased and on seeing them, the accused left the scene of offence with knife in his hand. Thereafter, they took the deceased to Government Hospital, Vinukonda, and sent P.W.3 to inform about the incident to the parents of the deceased, and while P.W.3 was going to the house of the deceased, the police came to Government Hospital, Vinukonda and recorded the statement of the deceased. On the advise of P.W.12-Doctor, they shifted the deceased to Government Hospital, Guntur. On the advise of P.W.12-Doctor, they shifted the deceased to Government Hospital, Guntur. According to P.W.1, the reason for the accused to attack the deceased is that the deceased had illicit intimacy with the sister of the deceased and that a month prior to the incident, the deceased had eloped with the sister of the deceased, and then himself, the parents of the deceased L.W.7 and P.W.7 went to Lambadi Colony near Chilkaluripet and brought the deceased and the sister of the accused to Vinukonda, and after holding panchayat in the presence of elders of both the parties, sent the deceased and the sister of the accused to their respective houses. However, P.W.1 in his cross-examination admitted that he does not know the name of the father of the accused and about their family and whether the accused is adopted son and that he knows the accused just one year prior to the incident. He further admitted that Shahjahan is the second sister of the accused and that she was married and staying with her husband and that the accused had two elder brothers, and that to his knowledge, the brothers of the accused never admonished the deceased with respect to the illicit intimacy he had with Shahjahan. He further admitted that the Tea Stall of P.W.6 is located in a room with a table placed outside for preparing tea, and that he has not seen the accused and the deceased passing on the road prior to the incident. He further admitted in his evidence that at the time when the police recorded the statement of the deceased, the parents of the deceased, himself and P.W.3 were present, and that P.W.3 belongs to his caste. He, however, denied the suggestion that there is rivalry between Madiga caste people and Muslim people and that a false case is foisted against the accused. 17. P.W.2, the mother of the deceased in her evidence stated that on coming to know about the incident, she along with her husband and P.W.3 went to the Government Hospital, Vinukonda, and at that point of time, the police were recording the statement of the deceased. Though, according to the prosecution, the incident took place at about 6.00 pm, but P.W.2 in her evidence stated that she came to know about the incident at 5.30 pm. Though, according to the prosecution, the incident took place at about 6.00 pm, but P.W.2 in her evidence stated that she came to know about the incident at 5.30 pm. She stated that she never saw the accused and deceased quarrel prior to the incident even though they moved together. 18. P.W.3, who is also an eye-witness to the incident, corroborated the version of P.W.1. He stated that they were sitting inside the Tea Stall of P.W.6, and there is no possibility of their watching the incidents taking place outside the Tea stall, and that by the time they came outside the Tea Stall, the accused stabbed the deceased and was running away and that they did not chase the accused to nab him. He stated that when the police recorded the statement of the deceased, except P.W.1, no other person was present. 19. P.W.4, who runs a Barber-Shop near the place of incident and who is another eye-witness to the incident turned hostile. P.W.6, at whose Tea Stall the incident happened turned hostile. P.W.5 who conducted autopsy over the dead body of the deceased in her evidence stated that she found seven injuries on the dead body of the deceased as is evident from Ex.P2-post mortem certificate issued by her. He stated that he cannot say whether all the injuries were caused by a single weapon or more than one weapon. 20. P.W.7, who is an independent witness, in his evidence stated that when the deceased eloped with the sister of the accused, he along with P.Ws. 1 and 3 brought them back and sent them to their respective houses in the presence of caste elders of both the parties. However, in his cross-examination, he admitted that he does not know about the illicit intimacy between the deceased and the sister of the accused, but heard about it. He admitted that he was not present when the stabbing of the deceased took place. He further admitted that the deceased and P.W.1 belongs to his caste and that they reside in his area. He stated that the accused developed grouse against the deceased as he had eloped with his sister and therefore, he stabbed the deceased. 21. He admitted that he was not present when the stabbing of the deceased took place. He further admitted that the deceased and P.W.1 belongs to his caste and that they reside in his area. He stated that the accused developed grouse against the deceased as he had eloped with his sister and therefore, he stabbed the deceased. 21. P.W.8, who is said to have signed Ex.P5-inquest panchanama in his evidence admitted that he does not know what will be written in the inquest report and that he had signed Ex.P5-inquest report at the instance of the police. P.W.9, who is the Panchayat Secretary, who signed Ex.P6-scene of offence panchanama and observation report and Ex.P7-confession and recovery panchanama for M.O. 2, stated that he did not see whether there is any blood stain on M.O.2. P.W.10, is the Head Constable, who received Exs. P8 and P9, intimation relating to admission of the deceased and later about his death. P.W.11 is the Doctor who confirmed the death of the deceased. P.W.12 is the Doctor at Government Hospital, Viinukonda, who under Ex.P12 referred the deceased to Government Hospital, Guuntur. He stated that due to non-availability of Surgeon and Blood Bank in Vinukonda, he had referred the deceased to Government Hospital, Guntur. Considering the gravity of the injuries, he felt that there was no necessity to get the dying declaration of the deceased recorded and that at the time when he was referred to Government Hospital, Guntur, the deceased was in a fit condition to give dying declaration. 22. P.W.13 is the Head Constable, who upon receipt of Ex.P12 from P.W.12 went to Government Hospital, Vinukonda and recorded the statement of the deceased, and that at the time of recording the statement of the deceased, he had sent the mother of the deceased and others away and that he did not obtain any endorsement from P.W.12 about the condition of the deceased as the deceased was in a fit condition while recording Ex.P13. P.W. 14 is the Sub Inspector of Police. He conducted investigation of the case. He admitted that initially, based on Ex.P13 statement, P.W.13, issued Ex.P14-FIR, registering a case against the accused for the offence under Section 324 IPC Thereafter, he prepared Ex.P18 rough sketch of the scene of offence, which he stated is not the correct scene of offence. P.W. 14 is the Sub Inspector of Police. He conducted investigation of the case. He admitted that initially, based on Ex.P13 statement, P.W.13, issued Ex.P14-FIR, registering a case against the accused for the offence under Section 324 IPC Thereafter, he prepared Ex.P18 rough sketch of the scene of offence, which he stated is not the correct scene of offence. On coming to know about the death of the deceased through the Head Constable, he altered the section of law from Section 324 IPC to Section 302 IPC and issued Ex.P17 altered FIR. He admitted that he did not investigate whether Shahjahan and her husband are living together and that he did not examine any witness of Chiilkaluripet where the deceased and Shahjahan are said to have stayed there for some time. P.W.15 is the Inspector of Police, who conducted partial investigation and arrested the accused. 23. Though P.Ws. 1 and 3 are eyewitnesses to the incident, the fact remains, P.W.3 in his evidence stated that they were sipping tea inside the Tea Stall of P.W.6 and that no one can see as to what is happening outside the Tea Stall, and that by the time, they came out of the Tea Stall, they saw the accused running away and they did not make any attempt to chase the accused and catch hold of him. In view of this evidence of P.W.3, the possibility of P.Ws. 1 and 3 witnessing what was happening outside the Tea Stall is very remote. Therefore, P.Ws. 1 and 3 could not have witnessed the killing of the deceased by the accused that happened just outside the Tea Stall of P.W.6, who turned hostile and did not support the case of the prosecution. 24. According to the prosecution the motive for the accused to kill the deceased is that the deceased a month prior to the incident had eloped with the sister of the accused, and to prove that they examined P.Ws. 1, 2, 3 and 7, the fact remains, P.W.1 is the relative of the deceased, P.W.2 is the mother of the deceased, P.Ws. 3 and 7 are independent witnesses. 1, 2, 3 and 7, the fact remains, P.W.1 is the relative of the deceased, P.W.2 is the mother of the deceased, P.Ws. 3 and 7 are independent witnesses. Though they deposed that on coming to know that the deceased and the sister of the accused were living at Chilkaluripet, they brought them back and in the presence of elders of both the parties, sent them to their respective houses, but P.W.2, who is the mother of the deceased stated that she never saw the accused and the deceased quarrel prior to the incident. Except, P.W.1, no other witness supported the case of the prosecution about the motive. Though P.W.7, an independent witness stated that the reason for the killing of the deceased by the accused is the elopement of the sister of the accused by the deceased, but in his evidence, he stated that he belongs to the caste of P.W.1 and the deceased, and that he does not know personally whether there was illicit intimacy between the deceased and the sister of the accused, though he heard of it. Thus it is clear that the evidence of P.Ws. 1, 2, 3 and 7 is not corroborating with each other and there are inconsistencies. The mother of the deceased herself spoke of no enmity between the accused and the deceased prior to the incident. Therefore, we are not inclined to believe the story of the prosecution that elopement of the sister of the accused by the deceased, is the motive for the accused to kill the deceased. 25. The next contention that has to be considered is whether Ex.P13, recorded by P.W.13-Head Constable can be treated as a dying declaration to convict the accused. P.W.13 in his evidence stated that upon receiving Ex.P12-intimation from P.W.12-Doctor, he rushed to Government Hospital, Vinukonda and recorded Ex.P13-statement of the deceased, but the fact remains, he has not obtained the endorsement of Ex.P12-Doctor as regards the mental condition of the deceased. It is the evidence of P.W.12 that when he referred the deceased to Government Hospital, Guntur, he did not feel the necessity to get the dying declaration of the deceased recorded, even though the deceased was in a fit condition to give dying declaration. It is the evidence of P.W.12 that when he referred the deceased to Government Hospital, Guntur, he did not feel the necessity to get the dying declaration of the deceased recorded, even though the deceased was in a fit condition to give dying declaration. Though P.W.13 in his evidence stated that at the time of recording, he had sent the mother of the deceased and others and then recorded Ex.P13, the evidence of P.Ws. 1 and 2 is that the parents of the deceased, himself and P.W.3 were present at the time of recording the statement of the deceased, while it is the evidence of P.W.3 that only P.W.1 was present at the time of recording the statement of the deceased by the police. Thus the evidence of P.Ws. 1 to 3 and 13 does not corroborate with each other. Based on such un-corroborative evidence, it cannot be said that none were present at the time of recording Ex.P13 statement of the deceased. The presence of the parents of the deceased and people of the caste of the deceased at the time of recording Ex.P13-statement of the deceased, as spoken to by P.Ws. 1 to 3 gives an inference that there is every possibility of the deceased being tutored to give false dying declaration. 26. It is the contention of the learned counsel for the appellant that there is unexplained delay in sending the FIR to the Magistrate Court. To consider this contention, we have perused the original record. Though the incident occurred at 6.00 pm., and thereafter, based on the intimation given by P.W.12, a case was registered on 22.10.2004 at 9.00 pm, the fact remains, it was sent to the Magistrate Court concerned only on 25.10.2004 at 10.30 am. No reason whatsoever is explained by the prosecution for not sending the FIR to the Magistrate Court for nearly four days after its registration. This circumstance throws doubt on the prosecution case whether the statements of the witnesses and statement of the deceased was recorded at all, and were recorded only after receiving intimation about the death of the deceased. 27. In the light of the findings recorded by us, as noted above, we hold that the prosecution failed to prove the charge under Section 302 IPC against the accused beyond all reasonable doubt. 28. In the result, the criminal appeal is allowed. 27. In the light of the findings recorded by us, as noted above, we hold that the prosecution failed to prove the charge under Section 302 IPC against the accused beyond all reasonable doubt. 28. In the result, the criminal appeal is allowed. The conviction recorded by the learned Sessions Judge by his judgment dated 20.12.2007 in S.C. No. 264 of 2005 against the accused for the offence under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 1,000/- is set aside. The appellant-accused is acquitted of the charge under Section 302 IPC and he shall be set at liberty if he is not required in any other case.