JUDGMENT : (C. Praveen Kumar, J.) 1. Originally, A-1 to A-3 in Sessions Case No.269 of 2013 on the file of the learned III Additional District and Sessions Judge, Kurnool at Nandyal were tried on two charges. A-1 and A-2 were tried for the offence punishable under Section 302 I.P.C. while A-3 was tried for the offence punishable under Section 302 read with 34 I.P.C. 2. Vide judgment, dated 08.06.2016, the learned Sessions Judge, while acquitting A-2 of the offence punishable under Section 302 I.P.C. and A-3 of the offence punishable under Section 302 read with 34 I.P.C., convicted A-1 of the offence punishable under Section 302 I.P.C., and accordingly, sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to suffer simple imprisonment for a period of one month. 3. The graveman of the charge against the accused is that on 08.05.2012, at about 5.00 a.m., towards Illuru Kothapeta on Banaganapalli-Koilakuntla Road, Banaganapalli Mandal, 2 Kurnool District, the accused is said to have caused the death of one Pogaku Lakshmi Reddy (hereinafter, referred to as “deceased”) by pouring petrol and setting him on fire. 4. The facts in issue are as under:- P.W.4 is the daughter of the deceased while P.Ws.1 and 2 were examined as eye witnesses to the incident. It is said that the house of A-1 to A-3 was situated opposite to the house of the deceased, who used to do cloth business and also conduct panchayats in the village as an elder. The husband of P.W.4 used to assist the deceased in his business. There were disputes between P.W.3 and the accused with regard to parking of horse cart since last three years prior to giving evidence. The deceased used to advise them not to quarrel with each other and tried to pacify the dispute. About 20 days prior to the incident, on one day, A-1 is said to have parked his motor cycle in front of the house of P.W.3, which lead to a quarrel between them. On hearing the cries, the deceased intervened and advised A-1 and A-2 not to park the motor cycle in front of the house of P.W.3. A-1 and A-2 are alleged to have threatened the deceased with dire consequences warning him not to interfere with their matter. On hearing the cries, the deceased intervened and advised A-1 and A-2 not to park the motor cycle in front of the house of P.W.3. A-1 and A-2 are alleged to have threatened the deceased with dire consequences warning him not to interfere with their matter. This incident was said to have been witnessed by P.W.4, who is none other than the daughter of the deceased. It is also said that the accused used to abuse and threaten the deceased whenever they come in contact with the deceased but the deceased used to ignore the same. On the date of incident i.e., on 08.05.2012, at about 4.30 a.m., the deceased is said to have gone out for a walk at Koilakuntla Road. It is said that A-1 also used to go out for walk on that road. P.Ws.1 and 2, who also claim to have gone for a morning walk, claimed to have seen the deceased going for a morning walk on Koilakuntla Road. When they reached the sub-station at Banaganapalli, the deceased came in opposite direction, crossed them and went away. They also claim to have seen A-1 to A-3 coming in opposite direction, wherein A-3 was found holding a plastic can, while A-1 was holding a small bucket. After crossing P.Ws.1 and 2, they heard cries of the deceased and when they turned back, they saw A-1 litting fire with a match stick and throwing the same on the deceased, setting his body on ablaze. Immediately, the deceased removed his clothes and threw them away. P.Ws.1 and 2 rushed to the scene and extinguished the fire with the help of gunny bags, which were available on the road side. A-1 to A-3, by raising cries as “Laxmi Reddyni Champanide Nidrapom”, went towards Kothapeta Village. Intimation about the incident was given to one Rama Subba Reddy (L.W.3) through cell phone. Then, L.W.4 along with one G.Chiranjeevi Achari (L.W.4) came to the scene of offence on a motor cycle and then, took the injured to Government Hospital, Banaganapalli. At about 6 a.m., the Sub- Inspector of Police, Banaganapalli, on receipt of M.L.C. intimation from Government Hospital, rushed to the hospital and recorded the statements of P.Ws.1, 2 and the injured after obtaining certificate from the Duty Doctor with regard to the mental condition of the injured. At about 6 a.m., the Sub- Inspector of Police, Banaganapalli, on receipt of M.L.C. intimation from Government Hospital, rushed to the hospital and recorded the statements of P.Ws.1, 2 and the injured after obtaining certificate from the Duty Doctor with regard to the mental condition of the injured. Basing on the said statement, a case in Crime No.63 of 2012 of Banaganapalli Police Station came to be registered for the offence punishable under Section 307 read with 34 I.P.C. Ex.P-13 is the F.I.R. Again, at 8.00 a.m., P.W.13 visited the hospital, secured the presence of P.Ws.1, 2 and others and recorded their statements. On the same day, at about 10.00 a.m., P.W.13 secured the presence of mediators i.e., P.W.6 and one P.Venkata Subbaiah (L.W.15), took them to the scene of offence, which is situated near Electrical Sub Station on Koilakuntla Road and prepared a panchanama of the scene, which is marked as Ex.P-2. He also got prepared a rough sketch, which is marked as Ex.P-14. At the scene, he seized burnt pieces of lungi under M.O.3. For the purpose of better treatment, the injured was shifted from Banaganapalli Government Hospital to Yashoda Hospital, Hyderabad. On 09.05.2012 at about 7.30 p.m., P.W.12 – Sub Inspector, Panjagutta Police Station received a requisition for recording the dying declaration of the deceased. Basing on the same, he approached the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad at about 8.00 p.m., handed over the requisition and accompanied her to the hospital. P.W.9, who was working as learned XIV Additional Chief Metropolitan Magistrate, Nampally, then proceeded to the hospital at 8.45 p.m., identified the injured with the help of Duty Doctor, put some preliminary questions to know the state of mind and being satisfied with regard to the mental condition of the injured, recorded the dying declaration, which is placed on record as Ex.P-8. P.W.13, who continued with the investigation, received information about the death of the injured at Yashoda Hospital, Hyderabad through a special messenger on 16.05.2012 at 1.30 p.m., which led to alteration of section of law from Section 307 read with 34 I.P.C. to 302 read with 34 I.P.C. Ex.P-15 is the altered F.I.R. He then sent the F.I.R. – Ex.P-15 to all the concerned. P.W.13 claims to have proceeded to Yashoda Hospital and conducted inquest over the dead body of the deceased on 17.05.2012 in the presence of P.W.5 and others. P.W.13 claims to have proceeded to Yashoda Hospital and conducted inquest over the dead body of the deceased on 17.05.2012 in the presence of P.W.5 and others. Ex.P-1 is the Inquest Report. After completing the inquest, the body was sent for post mortem examination. P.W.10 – Associate Professor, Forensic Medicine, Osmania Medical College, Hyderabad conducted autopsy over the dead body of the deceased on 17.05.2012 and issued Ex.P-11 – Post Mortem Certificate. According to her, the cause of death was due to burns. P.W.14, who took up further investigation from P.W.13, examined P.W.4 and others. On 14.05.2012, at about 5.00 p.m., while P.W.6 was present at M.R.O’s office, the Sub Inspector of Police called him and thereafter, all of them went to Yagantipalli Village where they noticed two persons trying to run away on seeing the police. Both of them were apprehended and on interrogation, revealed their identity as A-1 and A-2 and also confessed about the commission of the offence. Ex.P-3 is the relevant portion of the confession. The accused took them to Koilakuntla Road RCC Culvert from where they discovered a plastic can and a bucket under Ex.P-4 seizure panchanama. M.Os.1 and 2 are the two objects. After collecting all the necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.37 of 2012 on the file of the learned Judicial Magistrate of First Class, Banaganapalli. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned III Additional District and Sessions Judge, Kurnool at Nandyal for trial and disposal in accordance with law. 6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-15 and M.Os.1 to 3. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. 7. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-15 and M.Os.1 to 3. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. On behalf of the accused, none were examined. However, Ex.D-1 was got marked. 8. Believing the two dying declarations recorded by P.Ws.13 and 9, the learned Sessions Judge, while acquitting A-2 and A-3, convicted A-1 and sentenced him, as stated supra. Challenging the same, the present appeal came to be filed by A-1. 9. Sri P. Veera Reddy, learned Senior Counsel for the appellant/A-1, mainly submits that there is absolutely no legal evidence available on record to connect the accused with the crime. According to him, not only the two dying declarations, which are placed on record as Exs.P-8 and P-12, are inconsistent with each other, but also the oral evidence of P.Ws.1 and 2, who were examined as eye witnesses to the incident. He took us through the two dying declarations and the evidence of P.Ws.1 and 2 to contend that the conviction and sentence awarded by the trial Court warrants interference. 10. On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, opposed the same contending that there is absolutely no variation in the two dying declarations recorded by the Sub Inspector and the Magistrate respectively. According to him, though there is no reference to the presence of A-2 and A-3 in the dying declaration recorded by the Magistrate but there is a reference to them in Ex.P-12. According to him, non-mentioning the names of A-2 and A-3 in the said dying declaration may not matter much more so, when benefit was given to them by the trial Court. He further submits that even if the two dying declarations are excluded from consideration, still, there is evidence of P.Ws.1 and 2, who were examined as eye witnesses and whose presence cannot be disputed. In view of the above, he would contend that the conviction and sentence imposed by the trial Court requires no interference of this Court. 11. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of A-1 for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 12. In view of the above, he would contend that the conviction and sentence imposed by the trial Court requires no interference of this Court. 11. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of A-1 for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 12. POINT:- As seen from the record, the prosecution is mainly relying upon the evidence of P.Ws.1 and 2 and also Exs.P-12 and P-8, which were recorded by P.W.13 and P.W.9 respectively. In order to test the veracity of these two documents and the oral evidence adduced by the prosecution, it would be necessary for us to refer to the contents of those two dying declarations and the evidence adduced. As seen from the record, the first dying declaration was recorded by P.W.13 after obtaining the endorsement of the Doctor before recording the dying declaration. In the said dying declaration, which was recorded on 08.05.2012 at 6.45 a.m., it was categorically stated that on the date of incident, at about 4.30 a.m., the deceased, as usual, went to answer calls of nature by walk towards Koilakuntla Road and after crossing the electric sub station, he sat by the side of the road to answer calls of nature. According to him, at some distance opposite to him, A-1 and another person were also sitting for answering calls of nature. After answering the calls of nature, when the deceased was proceeding towards Banaganapalli side by walk, P.Ws.1 and 2 met him and talked with him and then, proceeded further. It is said that A-1 and another person who were coming behind him, poured petrol on him. Immediately, he turned back and noticed that the person who was with A-1 instigating the other to kill him. Saying so, he lit a match stick and threw it at the deceased due to which, his clothes were set on fire. Immediately, he removed the wearing apparel by making hue and cry. Burn blisters were raised on his both hands, calfs of his both legs and on his head. On hearing his cries, P.Ws.1 and 2 came to the spot. Then, A-1 and another person ran away towards I.K.Peta threatening the witness by stating that they won’t sleep till they kill the deceased. Burn blisters were raised on his both hands, calfs of his both legs and on his head. On hearing his cries, P.Ws.1 and 2 came to the spot. Then, A-1 and another person ran away towards I.K.Peta threatening the witness by stating that they won’t sleep till they kill the deceased. The time of the incident, according to the first dying declaration, was at 5.00 a.m. Thereafter, the family members came there and shifted the injured to Banaganapalli Government Hospital for treatment. 13. From the contents of the above dying declaration, which is recorded by the Magistrate, it is clear that the incident was witnessed by P.Ws.1 and 2 and they came there on hearing the cries of the deceased. Apart from that, the said dying declaration also indicate as if the person accompanying A-1 is said to have set fire the deceased by throwing a match stick on him. 14. The next dying declaration was recorded by P.W.9 on the next day evening at Yashoda Hospital, Somajiguda. The same is placed on record as Ex.P-8. In the said dying declaration, the learned Magistrate, after being satisfied with regard to the mental condition of the injured, proceeded to record the dying declaration. When questioned as to how the incident took place, the injured is said to have stated that every day, he goes for walking, to a distance of about 2 kms. The injured also informed that there were some disputes between A-1 and some others in which he intervened and pacified the matter, because of which, A-1 developed grudge and on Tuesday morning, at 5.30 a.m., when he went out for a walk, A-1 poured petrol and set him on fire. According to him, the incident occurred at a distance of 1 km., from their village. The said dying declaration also refers to two more persons standing at some distance and those two persons also belong to Banaganapalli but residents of other side street. He further states that the name of the father of A-1 is Ramaiah and he used to run horse cart while the name of A-1’s mother is Subbulu. When asked as to whether there were any disputes between the deceased and A-2, the injured stated that except screaming for trivial disputes in the bazaar, there was no enmity. 15. He further states that the name of the father of A-1 is Ramaiah and he used to run horse cart while the name of A-1’s mother is Subbulu. When asked as to whether there were any disputes between the deceased and A-2, the injured stated that except screaming for trivial disputes in the bazaar, there was no enmity. 15. From the contents of this dying declaration, it is very clear that the deceased knew the names of A-2 and A-3 also and the declaration also reveals that on the fateful day, while he was going for a walk, A-1 poured petrol and set the deceased on fire. Though the learned Magistrate referred to the names of two more persons but the deceased failed to mention their names. The said dying declaration is also silent as to the presence of A-1 and A-2 crossing over him while walking and P.Ws.1 and 2 coming towards him after hearing his cries. In other words, this dying declaration excludes the presence of P.Ws.1, 2 and also A-2 and A-3 at the scene but the evidence of P.Ws.1 and 2, who were examined as eye witnesses to the incident, is something different. 16. According to P.W.1, on 08.05.2012, at 4.30 a.m., while himself and P.W.2 were going for morning walk at Koilakuntla Road and when they reached Banaganapalli sub-station, the deceased came opposite to them and went away. While they were proceeding further, they observed A-1 to A-3 coming from opposite direction, wherein A-3 was holding a plastic can while A-1 was holding a small plastic bucket. It is said that after passing a distance of 20 feet, they heard cries of the deceased and when they turned back, they noticed A-2 litting a match stick and throwing the same on the deceased, setting him on ablaze. Immediately, the deceased is said to have removed his clothes, threw them away and raised cries pursuant to which, P.Ws.1 and 2 ran towards him and put off the flames. 17. In the cross examination of P.W.1, it has been elicited that the house of the accused and the deceased are opposite to each other while the house of P.W.1 is situated far away from the house of the deceased. It is also elicited that P.W.1 is an accused in one murder case and that he was convicted and was in Chenchalguda Jail. It is also elicited that P.W.1 is an accused in one murder case and that he was convicted and was in Chenchalguda Jail. Apart from that, P.W.1 was an accused in two more crimes i.e., in Crime No.131 of 2014 on the file of the learned Judicial Magistrate of I Class, Banaganapalli and Crime No.203 of 2015 of Banaganapalli Police Station. 18. Similarly, P.W.2, in his cross examination, admits that after the incident, the accused left M.Os.1 and 2 at the place of incident and ran away. He further admits that he did not sustain any burn injuries when extinguished the fire with gunny bags. He further admits that he did not state in his earlier statement about the visit of Sub Inspector to the hospital at 6.30 a.m. and he going back at 8.30 a.m. 19. From the evidence of these two eye witnesses, the case of the prosecution appears to be that A-1 to A-3 were present and A-2 is said to have lit the match stick and set fire the deceased. From an overall analysis, the fact situation varies to the incident in question. 20. While the first dying declaration recorded under Ex.P-12 would show that on the fateful day, the deceased went out to answer calls of nature and after answering the calls of nature, while he was returning back, A-1 and another person followed him and poured petrol. When he turned back, the person who was accompanying A-1 is said to have set fire the deceased. In the said dying declaration, there is a reference to P.Ws.1 and 2, who claim to have seen the incident and came running towards the deceased on hearing his cries and put off the flames. The second dying declaration, which is recorded by the Magistrate under Ex.P-8, is silent on material aspects. First of all, the version of the deceased in the said dying declaration is to the effect that on that day, he went out for a morning walk and while he was walking on Koilakuntla Road, A-1, who was also in his morning walk, is said to have poured petrol and set the deceased on fire. First of all, the version of the deceased in the said dying declaration is to the effect that on that day, he went out for a morning walk and while he was walking on Koilakuntla Road, A-1, who was also in his morning walk, is said to have poured petrol and set the deceased on fire. This is not the version in the first statement recorded by the police, which form the basis for the F.I.R. The entire version is now given a go-bye and P.Ws.1 and 2 came up with a different version implicating A-1 and A-2 in commission of the offence. Their version shows as if on the date of incident, they saw A-1 to A-3 on the road i.e., A-3 with a plastic can and A-1 with a small plastic bucket, which was not spoken to in any one of the dying declarations. 21. Apart from that, specific role is attributed to A-2 in setting the deceased on fire, which is not the case of the deceased at any point of time. In fact, failure to mention the names of A-2 and A-3 in the two dying declarations would not arise when they are known persons. It may be true that benefit of doubt was given to A-2 and A-3 and they were acquitted of the said charge but the question is whether A-1 can be convicted basing on the material available on record. From the discrepancies pointed out above, we feel that it may not be safe to convict A-1 on the material evidence adduced by the prosecution, more so, when the very role of A-1 is not being spoken to by the deceased in his two dying declarations and also by the two eye witnesses. Further, it is to be noted that there is any amount of inconsistency even with regard to the person who poured the petrol and also the person who set fire the deceased. 22. For the above said reasons, we feel that it is a fit case where benefit of doubt can be given to A-1 and the judgment of the trial Court is liable to be set aside. 23. 22. For the above said reasons, we feel that it is a fit case where benefit of doubt can be given to A-1 and the judgment of the trial Court is liable to be set aside. 23. In the result, the conviction and sentence recorded by the learned III Additional District and Sessions Judge, Kurnool at Nandyal vide judgment, dated 08.06.2016, in Sessions Case No.269 of 2013 against the appellant/A-1 for the offence punishable under Section 302 I.P.C. is set aside. The appellant/A-1 shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/A-1 shall be refunded to him. 24. Accordingly, the Criminal Appeal is allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.