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2012 DIGILAW 773 (AP)

Sivagallu Sailu v. State

2012-08-27

N.V.RAMANA, P.DURGA PRASAD

body2012
JUDGMENT N.V. Ramana, J. – These two Criminal Appeals, under Section 374 (2) of the Code of Criminal Procedure, the first by the appellant-accused through his Advocate and the second through Legal Aid question the conviction and sentence imposed against the appellant herein, by judgment dated 10.07.2008 passed in S.C. No. 292 of 2007 on the file of the Court of the I Additional Sessions Judge at Mahabubnagar. 2. The case of the prosecution in brief is that on 11.09.2006, at about 10.00 a.m., P.W.9, the father of the deceased, Andalu, lodged a report with the Kothur police stating that about eight years back, he performed the marriage of his daughter-deceased with the accused-Sivagalla Sailu of Nandigama. Out of the wedlock, they were blessed with one male and one female child. Since one year prior to the incident, the accused had been harassing the deceased mentally and physically demanding to get Rs.1,00,000/- additional dowry from them, for purchasing a motorcycle and constructing a house. Unable to witness the harassment, he purchased a house for Rs.18,500/-at Nandigama and gave it to the accused. While so, after disposal of their joint family property, the accused received Rs.30,000/- towards his share. He kept the same in the custody of P.W.9. Later, instead of asking return of the said amount of Rs.30,000/-, the accused harassed the deceased to get Rs.60,000/- from him. On one or two occasions, the accused even attempted to set the deceased on fire, but she escaped. 3. The accused suspecting that the deceased was having illicit relationship with one Shankeriah, escalated the physical harassment against the deceased. In that connection, two months prior to the incident, P.Ws. 5 and 6-village elders, held a panchayat, wherein the accused was advised by the panchayat not to harass the deceased, but he did not change his behaviour and continued to harass the deceased. On 07.09.2006, at about 10.00 p.m., the accused came home in a drunken condition, snatched the mangalasutram from the neck of the deceased, poured kerosene on her body and set fire to her, and thereafter, left the house. The deceased sustained severe burn injuries. P.Ws. 1 and 2 rushed to the spot and saw the deceased lying in front of her house with burn injuries. The deceased sustained severe burn injuries. P.Ws. 1 and 2 rushed to the spot and saw the deceased lying in front of her house with burn injuries. Thereafter, P.W.3 and Bommagalla Yadaiah (L.W.6) brought the deceased to his house at Shadnagar in an auto, and from there, he took the deceased to Government Community Health Centre, Shadnagar, and then to Osmania General Hospital, Hyderabad. On his enquiry, the deceased narrated the entire incident. 4. Based on the said report, P.W.13-Sub Inspector of Police registered a case in Crime No. 209 of 2006 against the accused for the offences punishable under Sections 498-A and 307 I.P.C. and took up investigation. During the course of investigation, he examined and recorded the statement of P.W.9 at the Police Station. Thereafter, he visited Osmania General Hospital, examined the deceased and recorded her statement. From there, he visited the scene of offence, drafted the scene of offence panchanama in the C.D. form, in the presence of mediators, P.W.7 and Yerragani Ramulu (L.W.12) and recovered M.O.1-one empty kerosene plastic can. While the deceased was undergoing treatment, P.W.8-II Additional Chief Metropolitan Magistrate, recorded the dying declaration of the deceased. 5. On 14.09.2006 at about 2.10 p.m., the deceased, while undergoing treatment at Osmania General Hospital, succumbed to the burn injuries. On 15.09.2006, upon receipt of death intimation, P.W.13 altered the section of law from Section 307 I.P.C. to Section 302 I.P.C. Thereafter, P.W.14 took up further investigation of the case. He visited Osmania General Hospital, examined and recorded the statements of P.Ws. 9 and 10 and Gudem Ashok (L.W.3.) He then visited the scene of offence at Nandigama and examined and recorded the statements of P.Ws. 1 to 6 and Bommagalla Yadaiah (L.W.6). Thereafter, on his requisition, the Revenue Divisional Officer, Hyderabad, directed P.W.11-Mandal Revenue Officer, to hold inquest over the dead body of the deceased. Pursuant thereto, P.W.11 held inquest over the dead body of the deceased, in the presence of mediators, Advelli Narsimha (L.W.13) and K. Yadagiri (L.W. 14). Thereafter, he sent the dead body of the deceased for post-mortem examination. P.W.12 having conducted autopsy over the dead body of the deceased, issued post-mortem report opining the cause of death of the deceased as due to burns. Thereafter, on credible information, P.W.14 apprehended the accused and brought him to Kothur Police Station. Thereafter, he sent the dead body of the deceased for post-mortem examination. P.W.12 having conducted autopsy over the dead body of the deceased, issued post-mortem report opining the cause of death of the deceased as due to burns. Thereafter, on credible information, P.W.14 apprehended the accused and brought him to Kothur Police Station. On interrogation in the presence of mediators, the accused confessed to the commission of the crime. Thereafter, he produced the accused before the Magistrate, who remanded him in judicial custody. Thus P.W.14 filed charge sheet against the accused for the offences punishable under Sections 498-A and 302 I.P.C. 6. The learned Sessions Judge framed charges against the appellant-accused for the offences under Sections 498-A and 302 I.P.C. The appellant-accused pleaded not guilty for the said charges and claimed to be tried. To prove the guilt of the appellant-accused, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P17 and M.O.1. In defence, the appellant-accused neither adduced any oral evidence nor marked any document. 8. The learned Sessions Judge, having appreciated the entire evidence available on record, found the appellant-accused not guilty of the offence under Section 498-A I.P.C. and acquitted him for the said charge, but having found him guilty of the offence punishable under Section 302 I.P.C., convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.100/-. 9. Questioning the said conviction and sentence, the appellant-accused filed Criminal Appeal No. 1261 of 2008 through his counsel and Criminal Appeal No. 519 of 2009 is filed through Legal Aid. 10. The learned counsel for the appellant-accused submitted that there are two dying declarations of the deceased, one recorded by P.W.8 under Ex.P11 and the other recorded by P.W.13-Sub Inspector. The dying declaration recorded by P.W.13 was not produced by the prosecution because it is in favour of the accused, and the non-production thereof, amounts to denial of fair trial to the appellant-accused and causes prejudice to him. In view of non-production of the dying declaration of the deceased recorded by P.W.13 adverse inference has to be drawn against the prosecution under Section 114(g) of the Indian Evidence Act. Thus the conviction of the appellant-accused for the charge under Section 302 I.P.C. by the learned Session Judge, based on Ex.P11-dying declaration recorded by P.W.8, is liable to be set aside and the appellant-accused has to be acquitted of the said charge. 11. Thus the conviction of the appellant-accused for the charge under Section 302 I.P.C. by the learned Session Judge, based on Ex.P11-dying declaration recorded by P.W.8, is liable to be set aside and the appellant-accused has to be acquitted of the said charge. 11. On the other hand, the learned Public Prosecutor supported the judgment of the learned Sessions Judge convicting the appellant-accused relying on Ex.P11-dying declaration recorded by P.W.8. He submitted that no adverse inference can be drawn against the prosecution for non-production of the dying declaration recorded by P.W.13, particularly when P.W.13 in his evidence stated that the statement of the deceased recorded by him matched with the contents of Ex.P11-dying declaration of the deceased recorded by P.W.8. He thus contended that the criminal appeal be dismissed confirming the judgment of the learned Sessions Judge convicting the appellant-accused. 12. We have heard the learned counsel for the appellant-accused and the learned Additional Public Prosecutor for the respondent-State and perused the judgment under appeal and other material available on record. 13. The point that arises for consideration in the present criminal appeal is whether the prosecution could establish the guilt of the appellant-accused for the offence punishable under Section 302 I.P.C., beyond all reasonable doubt? 14. P.W.1 is the sister-in-law of the accused, P.W.2, 3, 4, 5, 6 and 7 are residents of the village where the accused resides, P.W.8 is the Magistrate, who recorded the dying declaration of the deceased under Ex.P11, P.Ws. 9 and 10 are parents of the deceased, P.W.11 is the Mandal Revenue Officer, who conducted inquest panchanama, P.W.12 is the Doctor, who conducted autopsy over the dead body of the deceased, P.W.13 is the Sub Inspector of Police, who based on the report given by P.W.9 registered FIR and P.W.14 is the Inspector of Police, who conducted investigation. 15. P.W.1 is a resident of Nandigama village. She stated that the accused is the elder brother of her husband and the deceased is the wife of the accused. They have joint properties and upon its disposal, they got Rs.30,000/- towards their share. She does not know how much amount was given to the accused towards his share. The accused purchased a house with his money and the money given by the parents of the deceased. They have joint properties and upon its disposal, they got Rs.30,000/- towards their share. She does not know how much amount was given to the accused towards his share. The accused purchased a house with his money and the money given by the parents of the deceased. She stated that on the day of incident, at about 11.00 p.m. on hearing the cries of the deceased, she came out of the house and found the deceased in flames, but does not know as to who put off the flames. The deceased did not inform her anything about the incident. She was declared hostile by the prosecution. In her cross-examination, she denied that she stated it in Exs. P1 and P2. She further stated that on the day of incident, the accused was not present in the village as he had gone to Srisailam along with the Tractor for immersion of Lord Vinayaka idol, and after immersion, he returned to the village on the next day morning. 16. P.W.2, who is also a resident of Nandigama and knows the accused and the deceased, turned hostile. He stated that he came to know that the deceased sustained injuries while cooking food in the house. The relation between the accused and the deceased were cordial. He stated that the accused on receiving telephone call about the incident came back to the village. 17. P.Ws. 3 to 6, who are also residents of Nandigama village, turned hostile. 18. P.W.7 stated that he heard that the wife of the accused was caught fire in the kitchen and died. In that connection, the police came to the house of the deceased, conducted inquest panchanama under Ex.P8 and obtained his signature thereon. In his cross-examination, he stated that his signature was obtained at the police station, Kothur, four days after the incident. The contents of Ex.P8-panchanama were not read over to him. The police seized M.O.1-red kerosene plastic can from the scene of offence, but it was not seized in his presence. 19. P.W.8 is the II Additional Chief Metropolitan Magistrate. He stated that on 08.09.2006, at about 1.25 p.m., when he visited ABC Ward of Osmania General Hospital, for recording the dying declaration of a victim in some other crime, the Duty Medical Officer, issued Ex.P9-requisition to him to record the dying declaration of the deceased, who was in the ABC ward. P.W.8 is the II Additional Chief Metropolitan Magistrate. He stated that on 08.09.2006, at about 1.25 p.m., when he visited ABC Ward of Osmania General Hospital, for recording the dying declaration of a victim in some other crime, the Duty Medical Officer, issued Ex.P9-requisition to him to record the dying declaration of the deceased, who was in the ABC ward. The Duty Doctor, namely Dr. Nagabushanam, identified the deceased and certified that she was conscious and coherent and in a fit state of mind to make statement before him. Thereafter, he put some preliminary questions to the deceased to test her ability to give statement coherently, and after satisfying for himself that she was conscious and coherent, recorded her statement. After concluding the recording of the statement of the deceased at about 1.35 p.m., he obtained her left thumb impression and after reading over the contents thereof to her and after she admitted the same to be true, affixed her thumb impression. Thereafter, he obtained the endorsement of the Doctor that the victim was conscious and coherent during the course of recording the statement. In his cross-examination, he stated that the question which he put to the deceased were simple and they were answered by the deceased in one or two words. He did not enquire with the Duty Doctor whether any sedatives were administered to the deceased. He stated that he cannot say whether the victim/deceased had given tutored version before him. 20. P.W.9 is the father of the deceased. He stated that the deceased and the accused were living happily. About one year after their marriage, he purchased a house in the name of the deceased for Rs.18,000/- in Nandigama village. The accused has two brothers. They had some lands, but he does not know, whether they still own them or disposed of. There were no disputes between him and the accused. The accused respected the elders and he used to maintain distance with him out of respect. One year after the marriage, the accused set up separate family for his parents. The deceased kept a sum of Rs.30,000/- belonging to the accused with him fearing that he would waste the money, but he used the said money for himself. The accused neither asked him to return the money at any point of time nor demanded him to purchase motorcycle for him. The deceased kept a sum of Rs.30,000/- belonging to the accused with him fearing that he would waste the money, but he used the said money for himself. The accused neither asked him to return the money at any point of time nor demanded him to purchase motorcycle for him. On coming to know that the deceased was admitted in the hospital at Janampet, they went there. On his enquiry, the deceased informed him that she caught fire accidentally while cooking food. The accused was also present in the hospital. As the condition of the deceased was critical, the Doctors advised him to shift her to Osmania Hospital. The deceased succumbed to the burn injuries sustained by her on the 6th or 7th day after the incident. His brother’s son, Panjal took him to Kothur Police Station and obtained his thumb impression for giving the complaint. He is an illiterate and does not know whether his complaint was obtained even before the death of his daughter. In the cross-examination made by the Additional Public Prosecutor, he stated that the deceased never complained any time that she was harassed by the deceased for payment of money of Rs.60,000/-. He did not state before the police as in Ex.P11. He denied the suggestion that he compromised with the accused and is giving false evidence. 21. P.W.10 is the mother of the deceased. She turned hostile. 22. P.W.11 is the Mandal Revenue Officer. He stated that he held inquest over the dead body of the deceased in the presence of L.Ws. 13 and 14 and that Ex.P13 is the inquest report. The panchas opined that the deceased was harassed by the accused. On 07.09.2006, the accused poured kerosene and set fire to her and she expired on 14.09.2006, while undergoing treatment. 23. P.W.12 is the Assistant Professor in the Department of Forensic Medicine. He stated that on 15.09.2006, on receipt of requisition from the Station House Officer, Kothur, he conducted postmortem examination over the dead body of the deceased, and issued Ex.P14-post-mortem certificate opining the cause of death is due to burns. 24. P.W.13, who is the Sub Inspector of Police, Kothur, stated that based on Ex.P15-report lodged by P.W.9, he registered a case in Crime No. 209 of 2006 for the offences punishable under Sections 498-A and 307 I.P.C. against the accused and issued Ex.P16-FIR. 24. P.W.13, who is the Sub Inspector of Police, Kothur, stated that based on Ex.P15-report lodged by P.W.9, he registered a case in Crime No. 209 of 2006 for the offences punishable under Sections 498-A and 307 I.P.C. against the accused and issued Ex.P16-FIR. Thereafter, he recorded the statement of P.W.9 as in Ex.P11. On the same day, he visited Osmania General Hospital, the scene of offence and secured the presence of P.W.7 and L.W.12 and in their presence, conducted scene of panchanama under Ex.P8, prepared rough sketch and seized M.O.1-kerosene tin from the scene of offence. He further stated that on 14.09.2006, on receipt of information from Osmania Hospital that the deceased died, he issued alteration memo Ex.P17 altering the section of law from Section 307 I.P.C. to Section 302 I.P.C. Thereafter, he sent requisition to P.W.10-Mandal Revenue Officer, for conducting inquest over the dead body of the deceased, and handed over the case file to P.W.14 for further investigation. In his cross-examination, he stated that he cannot say the time of recording the statement of the victim at Osmania General Hospital, but added that it was on the same day when Ex.P16-FIR was issued. What all the deceased stated before P.W.8-II Additional Chief Metropolitan Magistrate, was also stated before him. He denied the suggestion that the deceased did not make any allegation against the accused in the statement before him. He stated that at the time of recording the statement of the deceased, he did not peruse the dying declaration recorded by the Magistrate. He denied the suggestion that they have suppressed the statement of the deceased recorded by him since it was running contrary to their case. 25. From the above evidence of the witnesses, it is evident that there is no eye-witness to the incident and the entire case of the prosecution is based on circumstantial evidence of the witnesses. Even though the prosecution witnesses, P.Ws. 1 to 7 and P.Ws. 9 and 10, who are the father and mother of the deceased turned hostile, but the learned Sessions Judge, relying upon Ex.P11-dying declaration recorded by P.W.8 found the appellant-accused guilty of the charge under Section 302 I.P.C., convicted and sentenced him to suffer imprisonment for life. 26. Even though the prosecution witnesses, P.Ws. 1 to 7 and P.Ws. 9 and 10, who are the father and mother of the deceased turned hostile, but the learned Sessions Judge, relying upon Ex.P11-dying declaration recorded by P.W.8 found the appellant-accused guilty of the charge under Section 302 I.P.C., convicted and sentenced him to suffer imprisonment for life. 26. It is the case of the appellant-accused that apart from Ex.P11-dying declaration recorded by P.W.8, there is another dying declaration of the deceased, recorded by P.W.13, which was not produced by the prosecution, and non-production of the same prejudice the appellant-accused and gives rise to draw an adverse inference against the prosecution that since it was in favour of the accused, it was not produced. 27. In view of this contention, we shall examine whether failure on the part of the prosecution in producing the dying declaration of the deceased recorded by P.W.13, an adverse inference can be drawn against the prosecution under Section 114(g) of the Indian Evidence Act? 28. Before we deal with this issue, we deem it appropriate to discuss the scope and ambit of Section 114(g) of the Evidence Act, which reads as follows: 114. Court may presume existence of certain facts. – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Court may presume existence of certain facts. – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume: (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business has been followed in particular cases; (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. (h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. 29. On a careful consideration of the above provision, it is crystal clear that there is no compulsive element in the provision to draw an adverse inference against a party whenever or wherever it fails to produce available document or evidence. The section itself starts with “Courts may presume”, which provides discretion to the Court whether to draw or not to drawn an adverse inference. Drawing of inference will depend upon facts and circumstances of each case. 30. The scope of Section 114(g) of the Evidence Act fell for consideration before us in Pallam Venkaiah v. The State of A.P. (Criminal Appeal No. 369 of 2008, dated 25.04.2012). Drawing of inference will depend upon facts and circumstances of each case. 30. The scope of Section 114(g) of the Evidence Act fell for consideration before us in Pallam Venkaiah v. The State of A.P. (Criminal Appeal No. 369 of 2008, dated 25.04.2012). It was urged before us that the dying declaration recorded by the police was not placed before the court, and in view of the provisions of Section 114(g) of the Evidence Act, an adverse inference should be drawn against the prosecution. In support of the said argument, reliance was placed upon the judgments of this Court in Harijana Mulinti Bhushanna v. State of A.P. 2004 (2) ALT (Crl.) 571 (DB) and Kolagatla Hasanaiah @ Hasan v. State of A.P., 2011 (2) ALD (Crl.) 70 (AP) = 2011 (1) ALT (Crl.) 402 (DB)(AP). This court after examining and discussing the said judgments and the judgments of the apex Court in State of Karnataka v. Moin Patel ( AIR 1996 SC 3041 ) and in Harpal Singh v. Devinder Singh 1997 (2) ALD (Crl.) 236 (SC) = 1997 JT SC 610 and several other judgments of this Court, held as follows: There cannot be any dispute that it is the prima facie duty of the prosecution to call all the witnesses and place all the relevant material in connection with the alleged occurrence, but in several cases where the prosecution was not diligent in prosecuting the case or by oversight are not placing, certain material evidence on record or not examining the witnesses who are crucial to bring home the guilt of the accused. In such cases, the accused are taking shelter under Section 114(g) of the Evidence Act and seeking acquittal on this ground. After elaborately discussing the precedents, both by this Court and the Hon’ble Apex Court, we are of the considered opinion that whenever an important evidence is not produced by the prosecution, ipso facto, it will not give any right to the accused to seek shelter under Section 114(g) of the Evidence Act that an adverse inference should be drawn and it is fatal to the case of the prosecution. As held by the Apex Court, if there are independent witnesses whose evidence is reliable and trustworthy to prove the charges leveled against the accused, the infirmities arising out of non-examination of other independent witnesses will not be sufficient to put the prosecution out of the Court. Therefore, in such an event, the presumption under Section 114(g) of the Evidence Act, will not come to the rescue of the accused. To analyze this aspect, the Courts have to specifically look into the facts and circumstances of each case, the other important evidence available on record, the prejudice that is caused to the accused and then only the Courts have to come to a definite conclusion whether to draw or not to draw an adverse inference. 31. In the instant case, it is the admitted case of the prosecution that on the very same day after P.W.8 recorded Ex.P11-dying declaration of the deceased, P.W.13 also recorded the dying declaration of the deceased, but the same was not produced by the prosecution. A suggestion was made to P.W.13 that they have suppressed the dying declaration recorded by him because it was running contrary to the case of the prosecution. By giving such suggestion to P.W.13, a doubt was created by the defence that the statement of the deceased recorded by P.W.13 was in favour of the appellant-accused, and more so when P.W.8-II Additional Chief Metropolitan Magistrate, who recorded Ex.P11-dying declaration of the deceased stated that he cannot say whether the deceased has given tutored version before him. The appellant-accused in his examination under Section 313 Cr.P.C. has categorically stated that he was not available on the day of the incident. He left in the morning to Srisailam for immersion of Ganesh idol as per the instructions of the owner of the Tractor, as its Driver, and upon the owner of the Tractor informing him that his wife met with a fire accident while she was cooking food, he immediately came to the Osmania Hospital on the next day morning, and at that point of time, his wife told him that one Shankeriah, Laxmamma and Krishnaiah tutored and forced her to make dying declaration against him. At the instance of those three persons she made false statement. At the instance of those three persons she made false statement. The fact that the deceased was not in the house at the time of incident and he went to Srisailam for immersion of Ganesh idol, was also spoken to by P.Ws. 1 and 2. P.W.1 in his evidence stated that the accused left Srisailam along with the Tractor for vinayaka nimmajanam and he was not present and that he came on the next day after completion of immersion. Similarly, P.W.2 also stated that on the day of the incident, the accused had gone to Srisailam along with his Tractor to attend Ganesh immersion ceremony and on the next day, at about 6.00 a.m., he returned to the village. P.W.10, the mother of the deceased, in her cross-examination stated that she and her husband together went to Osmania General Hospital at 12.00 p.m. and when the accused came there, they admonished him as to why he had gone to Srisailam. This evidence of P.Ws. 1, 2 and 10 clearly discloses that the accused was not in the village on the day of incident as he went to Srisailam for Ganesh immersion as driver of the Tractor. When it is the case of the accused in his 313 Cr.P.C. statement that his wife told him that three persons by name Shankeriah, Laxmamma and Krishnaiah, tutored her and forced her to give statement against the accused, non-production of the dying declaration of the deceased recorded by P.W.13, would certainly cause prejudice to the accused and gives rise to draw an adverse inference against the prosecution under Section 114(g) of the Indian Evidence Act. Therefore, convicting the appellant-accused for the offence under Section 302 I.P.C., merely basing on Ex.P11-dying declaration of the deceased, recorded by P.W.8-II Additional Chief Metropolitan Magistrate, would not be proper, and more particularly when P.W.2 in her evidence stated that she came to know that the deceased caught fire while cooking food and P.W.9, who is the father of the deceased stated that when he enquired the deceased told him that she caught fire accidentally while cooking food. 32. 32. This apart, the implication of the accused in the case cannot be ruled out because P.W.9, the father of the deceased in his evidence stated that his brother’s son Panjal took him to Kothur police station and obtained his thumb impression for giving complaint, that he is an illiterate and does not know whether his complaint was obtained even before the death of the deceased. Further, the prosecution also failed to prove the Ex.P8-inquest panchanama and seizure of MO1, as P.W.7 in his evidence stated his signature on Ex.P8-inquest panchanama was taken by the police four days after the incident and that he does not know the contents thereof and that M.O.1 was not seized in his presence. 33. Hence, for the foregoing reasons, we hold that the prosecution failed to prove the guilt of the appellant-accused for the charge under Section 302 I.P.C. beyond all reasonable doubt. Hence, the conviction and sentence of the appellant-accused, recorded by the learned Sessions Judge, basing on Ex.P11-dying declaration of the deceased, recorded by P.W.8, cannot be sustained and is liable to be set aside. 34. In the result, the criminal appeals are allowed. The conviction and sentence dated 01.08.2008, passed by the I Additional Sessions Judge, Mahabubnagar, against the appellant-accused, in S.C. No. 292 of 2007, for the offence under Section 302 I.P.C. is set aside and he shall be released forthwith, if he is not required in any other case.