Judgement

CHANDRACHUD, J:- Though seven persons were originally put up for trial in the Sessions Court. Krishna Division, Machilipatnam, we are now concerned only with one of them Bandarupalli Venkateswarlu, who was arraigned as accused No. 3. The learned Sessions Judge convicted the appellant under Section 304, Part II, Penal Code, and the remaining six under Section 304 read with Section 149. The judgment of the Sessions Court was challenged by the accused as well as the State Government. The High Court of Andhra Pradesh allowed the appeal filed by the State partially by convicting the appellant under Section 302 and accused Nos. 5 and 6 under Section 302 read with Section 34. All of these were sentenced to im-prisonment for life. The remaining four were acquitted by the High Court.

2. The special leave petitions filed by accused Nos. 5 and 6 were dismissed by this Court on September 14, 1970. The special leave petition filed by the State of Government against the acquittal of accused Nos. 1, 2, 4 and 7 was also dismissed by this Court on the same date. The jail petition filed by the appellant came before this Court subsequently when special leave was granted to the appellant to appeal against the judgment of the High Court.

3. The incident out of which the prosecution arises happened at about 4.30 p.m. on February 24, 1968 in a place called Kanchikacherla. The deceased Arikatla Kotesu a young harijan boy used to eke out his livelihood by working as a coolie. On February 24, 1968, he was passing through the village of Kanchinkacherla when the appellant and two other accused are alleged to have questioned him whether he had stolen their brass utensils. They tied his hands with a rope and tried to extort a confession from him. The boy admitted that he had sold the utensils to a hotel-keeper who, at the demand of the accused, produced the utensils. The accused then brought the boy to a tobacco barn. They tied him with a rope and asked him to divulge details of the other thefts committed by him. Accused No. 6 is alleged to have poured kerosene on the boy after which the appellant lighted a match and set fire to his clothes.

4. The deceased Kotesy managed to run away and the first thing he did was to contact a private doctor who advised him go to the Government Hospital or to a police station. At about 5-30 p.m. the deceased went to the police station at Kanchikacherla where his statement Ex. P-56, is said to have been recorded. He was thereafter admitted to the Government hospital where his dying declaration, Ex. P-61, was recorded at about 9-30 the next morning. He succumbed to his injuries on the afternoon of the 26 th.

5. Ten out of the thirteen witnesses examined by the prosecution as eye-witnesses turned hostile, leaving the evidence of P. Ws. 1 to 3 only for consideration. The High Court was not impressed by the evidence of P. W. 1 and thus the narrow for examination in this appeal is whether the evidence of P. Ws. 2 and 3 is sufficient to sustain the conviction of the appellant under Section 302, Penal Code.

6. Before considering the evidence to these two witnesses, it would be necessary to make a brief reference to the statement Ex. P-56 alleged to have been made by the deceased to P. W. 19, the Station Writer. That statement purports to contain the names of the accused but the High Court, very rightly, refused to act on it. If the deceased had mentioned the names of the accused to the Station Writer, the requisition (Ex. P-57) sent by the Write to the Medical Officer would not have contained a vague statement that the body was "burnt by someone" from Kanchikachrla and that the body was being forwarded for medical treatment. Besides, had the appellant disclosed the names of the accused to the Station Writer, it is unlikely that he would have failed to mention their names in the dying declaration, Ex. P-61. It seems clear that the deceased could have identified those who killed him but he did not know them by their names. But