JUDGMENT : 1. The appellant herein is the sole accused S.C.No.118 of 2005, on the file of the Assistant Sessions Court, Padmanabhapuram, Kanyakumari District. The appellant has filed this Criminal Appeal before this Court challenging the judgment of conviction, dated 17.12.2007, passed by the learned Assistant Sessions Judge, Padmanabhapuram, sentencing the accused to undergo 10 years R.I., and imposing the fine amount of Rs.10,000/-, in default, to undergo 12 months S.I. 2. The case of the prosecution, in brief, is as follows:- (i) On receipt of Ex.P9 / intimation, dated 06.09.2002 of the Manju Private Nursing Home, Marthandam, on 07.09.2002, at 4.00 Hrs., in the early morning, from Kuzhithurai Police Station, Kanyakumari District, P.W.1 / Head Constable, Thiruvattar, went to the said Hospital and received Ex.P1 / Written Complaint from one Aruldoss, brother of the injured, since the injured was unable to speak, at about 6.30 a.m., on 07.09.2002 and returned to the Police Station and registered Ex.P8 / FIR., in Crime No.600 of 2002, against the accused, at 7.30 a.m., for the offence punishable under Section 304(2) IPC. P.W.23 / Inspector of Police, Thiruvattar, took investigation and visited the scene of occurrence in the presence of P.W.9 and one Rajkumar and prepared Ex.P11 / Observation Mahazar and drew Ex.P10 / Rough Sketch and examined some witnesses. (ii) On receipt of Ex.P4 / Requisition on 10.09.2002 at 17.20 Hrs., from the Inspector of Police, Thiruvattar, P.W.14 / Judicial Magistrate, Kuzhithurai, went to the said hospital on 10.09.2002 at about 5.30 p.m., where the injured was under treatment and recorded Ex.P5 / Dying Declaration from the injured, having burn injuries in both of his hands and legs, in the presence of the Doctors, between 6.00 pm., and 6.20 p.m. (iii) On receipt of Ex.P6 / Death Intimation stating that the injured expired at 3.10 a.m., on 11.09.2002 from the Manju Private Nursing Home, on the same day ie., 11.09.2002, the charge against the accused was altered into Section 304(2) IPC. P.W.23 sent Ex.P.13 / Alteration Report, on 11.09.2002, to the Judicial Magistrate, Padmanabhapuram. (iv) The Inspector of Police, Thiruvattar, conducted inquest proceedings between 9.00 a.m., and 11.05 a.m., and prepared Ex.P12 / Inquest Report, in the presence of the Panchayatars. Accused was arrested by P.W.23, on 12.09.2002 at 14.00 Hrs and confession statement was recorded in the presence of one Rameshraj and P.W.2. (iv) The Inspector of Police, Thiruvattar, conducted inquest proceedings between 9.00 a.m., and 11.05 a.m., and prepared Ex.P12 / Inquest Report, in the presence of the Panchayatars. Accused was arrested by P.W.23, on 12.09.2002 at 14.00 Hrs and confession statement was recorded in the presence of one Rameshraj and P.W.2. In pursuance of Ex.P14, admitted portion of the confession statement M.O.1 / Chimney Lamp was recovered from the accused in the presence of the above witnesses under Ex.P15 / Mahazar. Thereafter, P.W.22 completed the investigation in this case and laid the charge sheet against the accused for the offence under Section 304(2) IPC., before the Judicial Magistrate Court, Padmanabhapuram, on 30.11.2002. (v) The learned Judicial Magistrate, Padmanabhapuram took cognizance of the case as P.R.C.No.33 of 2004 and Section 207 Cr.P.C., proceedings was complied with. Afterwards, the case was taken on file, after committal as S.C.No.118 of 2005, on the file of the Principal Sessions Court, Nagercoil at Kanyakumari District and was made over to the Assistant Sessions Court, Padmanabhapuram, for further proceedings. After hearing the accused and the Public Prosecutor, charge was framed under Sections 304(2) of IPC., against the accused. 3. The crux of the charge is that while loading the bricks from the brickcline (Choolai) on 06.09.2002, at about 8.50 p.m., a dispute arose between witness and the accused in throwing a brick upon Anand by the accused. Consequently, the accused threw the Kerosene Chimney Lamp, knowing well that it will cause death upon the said Anand, since Anand just removed away, the Chimney Lamp fell on the deceased and caught fire on the dresses worn by the deceased and the deceased got burn injuries all over the body. The deceased was admitted in the Manju Private Nursing Home and while he was under treatment, he died on 11.09.2002, at 3.10 a.m., early morning, due to severe burn injuries and thereby, the accused committed the offence punishable under Section 304(2) IPC. 4. Since the accused denied the charge and pleads not guilty, trial commenced and prosecution examined P.Ws.1 to 23 and produced Exs.P1 to 15 and marked M.O.1, in order to prove the charge against the accused. After completion of prosecution evidence, accused was questioned under Section 313(b) of Cr.P.C., in respect of the incriminating evidences found in the prosecution evidence and the accused denied prosecution evidence, as untrue and false. After completion of prosecution evidence, accused was questioned under Section 313(b) of Cr.P.C., in respect of the incriminating evidences found in the prosecution evidence and the accused denied prosecution evidence, as untrue and false. D.W.1 / Mother of the accused was examined, as defence witness and Exs.D1 to D3 were marked. 5. Considering the evidence on record, the trial Court came to the conclusion that the accused found guilty for the offence punishable under Section 304(2) IPC., and convicted the accused, as stated supra. Hence, the present Criminal Appeal has been preferred by the accused against the conviction and sentences passed by the trial Court. 6. Among 23 witnesses P.Ws,3, 4, 5, 6, 8, 9 and 12 were declared as hostile, during their evidence, since they did not support the case of the prosecution and they were cross-examined by the prosecution. P.Ws.3 and 4 were alleged to be present in the place of occurrence and also witnessed the occurrence. P.Ws.5 and 6 are brothers and they were alleged to have taken the injured after occurrence in an auto, to the Manju Private Nursing Home at Marthandam and admitted the injured for treatment on the date of occurrence itself. P.W.8 was also alleged to be present in the scene of occurrence and witnessed the occurrence. P.W.9 is alleged to be signed in Ex.P11 / Observation Mahazar. P.W.10 is alleged to be the Auto Driver by whom the injured was taken in his auto to the Manju Private Nursing Home at Marthandam, from the place of occurrence. P.Ws.11 & 12 were said to be signed in Ex.P14 & 15 Mahazars, as witnesses. P.W.11 did not speak about the recording of confession statement from the accused and also about the recovery of M.O.1, as mentioned in Ex.P15 / Recovery Mahazar. 7. Though P.W.12 admitted the signatures as Exs.P2 & P3 respectively found in Ex.P14 & P15 Mahazars respectively, he has categorically stated in his evidence that he put those Exs.P2 & P3 signatures with P.W.11 in Thiruvattar Police Station. Hence, the factum of recording the confession, which leads to recovery of M.O.1 from the accused is not proved by the prosecution. M.O.1 was also not identified by the above witnesses during their evidence. P.W.13 is alleged to be the owner of the lorry, bearing Registration No.TN-74-Y-8548, driven by P.W.3 and is used for loading the brick on the date of occurrence. M.O.1 was also not identified by the above witnesses during their evidence. P.W.13 is alleged to be the owner of the lorry, bearing Registration No.TN-74-Y-8548, driven by P.W.3 and is used for loading the brick on the date of occurrence. P.W.14 was the Judicial Magistrate, Kuzhithurai, who recorded the dying declaration from the injured, on 10.09.2002, at Manju Private Nursing Home, Marthandam. P.W.15 was the Doctor, working at Manju Private Nursing Home, Marthandam, who said to have admitted the injured on 06.09.2002, at about 9.00 p.m., and treated the injured having burn injuries and also gave death intimation (Ex.P6) on 11.09.2002 to Kuzhithurai Police Station. P.W.16 / Doctor conducted Postmortem on the deceased in Kuzhithurai Government Hospital on 11.09.2002 and issued Ex.P11 / Postmortem Certificate. P.Ws.17 & 18 were working as Head Constables in Thiruvattar Police Station and P.Ws.19 & 20 were working as Head Constables in Kuzhithurai Police Station respectively. P.W.21 was the Head Constable working in Kuzhithurai Police Station, who said to have received Ex.P1 complaint from P.W.1 at Manju Private Nursing Home, Marthandam and registered the Ex.P8 / FIR against the accused under Section 304(2) IPC. P.Ws.22 & 23 were the Investigating Officers of this case working at Kuzhithurai Police Station on different spells. P.W.1 is the brother of the deceased. 8. As per Ex.P1 / Complaint and Ex.P8 / FIR, P.W.1 was also present in the occurrence Place and witnessed the occurrence. P.W.2 is the brother-in- law of the deceased and he is also alleged to be present and witnessed the occurrence, but their evidence before the trial Court reveal the fact that they were not the eyewitnesses and their evidence is only in the nature of hearsay regarding the occurrence. They came to know the occurrence only after the injured was admitted in the Manju Private Nursing Home at Marthandam. The witness Anand, who played a main role in the alleged occurrence, was not examined as witness by the prosecution during trial, though he was examined by the investigating officer during his investigation. No valid reason was assigned for non-examination of the witness by the prosecution. Preparation of observation mahazar and rough sketch, which were done in the presence of the witnesses, are not proved by the prosecution during trial in respect of the occurrence place. No valid reason was assigned for non-examination of the witness by the prosecution. Preparation of observation mahazar and rough sketch, which were done in the presence of the witnesses, are not proved by the prosecution during trial in respect of the occurrence place. Arrest and recording of confession of the accused, which lead to recovery of M.O.1 are not proved by the prosecution during evidence, since those connected witnesses turned hostile during trial. 9. The case of the prosecution is that Ex.P1 / Complaint was received from P.W.1 from the Manju Private Nursing Home by P.W.21, who thereafter, came to the Police Station and registered the FIR against the accused. But, P.W.1 deposed that he signed Ex.P1 / Complaint in the Police Station and he did not know the contents of Ex.P1 / written complaint. Hence, the receipt of Ex.P1 / Complaint from P.W.1 at Manju Private Nursing Home, Marthandam and also the registration of FIR by P.W.21, on the basis of that complaint, were not proved in the evidence. P.W.1 / complainant, who said the criminal law in motion did not prove or corroborate the contents founds in Ex.P1 / Complaint during his evidence. 10. The trial Court relied the evidence of P.W.2, as eyewitness, and Ex.P5 / Dying Declaration recorded by P.W.14 / Judicial Magistrate, in the presence of Doctors, who certified the conscious state of the injured and also about the inability to sign the recorded dying declaration by the injured, due to burn injuries on his both hands and legs for convicting the accused. But, the evidence of P.W.2 proves the fact that his evidence is in the nature of hearsay evidence and he did not see the occurrence and he was also not present in the scene of occurrence. P.W.1 deposed that four persons viz., Stephen, Anand, Singh and Selvaraj threw the Chimney Lamp upon the deceased. P.W.2 deposed that Singh and Anand threw the lamp upon Sasi (deceased). As per the evidence of P.W.14, who recorded the dying declaration on 10.09.2002 at Manju Private Nursing Home, the injured has stated that Singh threw the Chimney Lamp upon Anand, but he just moved away it fell on his dress and caught fire and also caused burn injuries over his body and he was admitted by the accused and others for treatment in the hospital. 11. The contents of Ex.P5 are not corroborated by the eyewitnesses. 11. The contents of Ex.P5 are not corroborated by the eyewitnesses. The Doctor, who said to be present with P.W.14 at the time of recording Ex.P5 / Dying Declaration, is also not examined by the prosecution, since Ex.P5 does not contain the signature / thump impression of the deceased. P.W.15 also did not corroborate the evidence of P.W.14. The Doctor, who certified the mental state of the injured at the time of recording the confession, was also not examined by the prosecution to prove the fact that Ex.P5 was recorded in his presence. P.W.14 also did not specifically state the name of the Doctor, who certified the physical fitness of the injured and also his inability to put his thump impression and signatures in the said recorded confession statement. P.W.7 also deposed that the injured did not speak in the hospital from 06.09.2002 till his death. P.W.7 did not support the case of the prosecution, but he was not declared as hostile by the prosecution. Prosecution has admitted that the injured was admitted on 06.09.2002 at 9.00 p.m., in Manju Private Nursing Home, Marthandam and the injured having burn injuries expired on 11.09.2002. A.R / Wound Certificate of the injured is also not produced by P.W.15. It is stated that the injured was admitted with burn injuries on 06.09.2002 in the Manju Private Nursing Home for treatment and he died because of burn injuries on 11.09.2002 at 3.10 a.m. The relevant medical records in respect of the injured / deceased is also not produced by the prosecution during trial. No motive or intention to cause death or injuries upon deceased by the accused is proved by the prosecution. 12. The deceased before given dying declaration on 10.09.2002 between 6.00 p.m., and 6.20 p.m., was in the midst of P.Ws.1, 2, 7, who are the family members and close relatives from the time of occurrence. This also indicates that the deceased had been discussing about the incident with his brother, brother-in-law and father respectively. Hence, Ex.P5 / Dying Declaration creates a doubt in the mind of this Court about the genuineness and dying declaration is not voluntary and unreliable one. None of the witnesses examined by the prosecution identifying the accused, who said to have thrown the Chimney Lamp during the occurrence and also M.O.1 caused burn injuries upon the deceased. 13. Hence, Ex.P5 / Dying Declaration creates a doubt in the mind of this Court about the genuineness and dying declaration is not voluntary and unreliable one. None of the witnesses examined by the prosecution identifying the accused, who said to have thrown the Chimney Lamp during the occurrence and also M.O.1 caused burn injuries upon the deceased. 13. The learned counsel appearing for the appellant contends that the real accused is not before this Court and the name of the accused is Joseph @ Darwin and on the date of occurrence, the accused was a juvenile. The postmortem report reveals the fact that the deceased was aged about 25 years, on 11.09.2002. The alleged occurrence took place on 06.09.2002. Hence, it is not correct to state that the accused was a juvenile on the date of occurrence. Identity of the accused is also not disputed in the evidence of prosecution, through the alleged eyewitnesses and other witnesses also. 14. The case of the prosecution is based upon the eyewitness and also the dying declaration of the deceased. The trial Court awarded conviction only based upon the evidence of P.W.2, as eyewitness and the dying declaration recorded by P.W.15 / Judicial Magistrate. However, P.W.2 is not an eyewitness as contended by the prosecution. Ex.P5 / Dying Declaration is not proved in accordance with law and is also not corroborated by the witnesses examined by the prosecution. 15. The counsel for the appellant also relies the Judgment to support his contention in respect of genuineness of dying declaration in The Judgment of Hon'ble Supreme Court in State of U.P. Vs. Shishupal Singh reported in ( AIR 1994 SC 129 ); (ii). the Judgment of Allahabad High Court in Abdul Hameed and Others Vs. State reported in (1994 Crl.L.J.872) and the Judgment of Kerala High Court in State of Kerala Vs. N.Moideenkutty Haji and Others reported in (1994 Crl.LJ, 1250 ). 16. In the case on hand, the accused was convicted by the trial Court, relying only upon the sole dying declaration of the injured, given before the learned Judicial Magistrate. The evidence of P.W.2 is also in the nature of hearsay evidence and he is not an eyewitness, as held by the trial Court. Ex.P5 / Dying Declaration is unreliable one, as held by this Court. 17. The evidence of P.W.2 is also in the nature of hearsay evidence and he is not an eyewitness, as held by the trial Court. Ex.P5 / Dying Declaration is unreliable one, as held by this Court. 17. Considering the above facts and circumstances of the case, this Court comes to a conclusion based on the evidence of prosecution that the charge against the accused is not proved beyond reasonable doubts and the accused is entitled to the benefit of doubt and hence, the accused is liable to be acquitted from this case. 18. In the result, this Criminal Appeal is allowed by setting aside the Judgment convicting the accused under Section 304(2) IPC, passed by the Assistant Sessions Judge, Padmanabhapuram, dated 17.12.2007, in S.C.No.118 of 2005 and acquitted the accused / appellant. The trial Court is directed to refund the fine amount, if paid, on application by the appellant / accused. The bonds executed by the accused stands cancelled.