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(per Hon'ble Smt Justice T. Rajani) The judgment that is assailed, in this appeal, is rendered by the XI Additional District and Sessions Judge, Krishna, Gudivada in SC.No.211 of 2009 on 21.03.2012 whereby A1 was found guilty for the offence punishable under section 302 IPC.

2. To understand the facts of the case, the charge sheet can be referred to:

A1 is the brother-in-law of A2. A2 is the son of A4. A3 is son-in- law of A4. A1, A2 and A4 are residents of Gudivada while A3 is a resident of Vijayawada. They conspired to do away with the deceased, as he has become obstacle to their pork business. In pursuance of their pre-plan, A4 induced the deceased on 08.12.2007, to do pork business in her stall at market centre. Believing the inducement of A4, the deceased, on 09.12.2007, at about 4 AM, along with his wife went to the market centre with dressed pork and shared it with A2 for selling. At about 9.30 AM, the deceased felt that the pork on hand is not sufficient for that day and he took a pig from the slaughter house situated adjacent to the market, for dressing. A1 to A3, who were waiting to do away with the deceased, followed him to the slaughter house. A1, armed with porker knife, hacked the deceased on the back and left chest, with an intention to kill the deceased. While the deceased was trying to run away to save his life, A2 and A3 closed the gate of the slaughter house, to prevent him from escaping and pushed the deceased from the gate. When the deceased tried to scale over the wall to escape from there, A1 further hacked on his left forearm, on which the deceased fell down on the ground. The deceased forcibly came to the road, by pushing A2 and A3 and fell down on the road, unconscious. Later, he was shifted to Government Area Hospital, Gudivada in 108 Ambulance, but he succumbed to the injuries while undergoing treatment at Government General Hospital, Guntur on 22.12.2007 at 11 PM.

Hence, the contention of the counsel for the appellant that since the Court below did not believe part of the dying declaration while acquitting A2 to A4, the dying declaration loses value, loses its strength.

9. Ex.P22 is the dying declaration of the deceased. In the said declaration, the deceased disclosed the manner in which the incident occurred and stated that on 09.12.2007 at 9.40 AM, he was selling pigs in the market centre of Bandar, Gudivada, as Balasani Ramanamma told him to take pig and sell the pig meat. He bent forward to set fire with match, to burn the pig. Then Sala Panduranga Rao, A1, hacked him with pig meat knife, on his back and again he hacked on his left side chest. When he tried to escape, by running through the gate, A2 and her son-in-law, A3, caught him and obstructed him from escaping. When he tried to jump the compound wall to escape, he hacked him on his left hand arm and again he hacked him on right hand wrist. He came out and fell down and became unconscious. Explaining the reason for the said attack, he states that he did not have any disputes with Sala Panduranga Rao or with anybody. They hacked him with a view to prevent him from selling pig meat and with a view to stop him from doing business. They hacked him as he was doing business and maintaining his family happily. For the question as to who were there at the time of the incident, he stated that there were nobody there, who had acquaintance with him, but he stated that the persons, who came to buy pig meat, were present but he does not know their names. It is true that the said statement of the deceased does not spell the presence of P.W.1 at the place of the incident.

10. A reading of the evidence of P.W.1 would offer an answer for the lapse of the deceased in not speaking about the presence of P.W.1. According to her evidence, on the date of the incident, she went to the market along with the deceased at about 4 AM and they cut the pig and half of the meat was given to A2. The deceased went to the place where the pigs were cut, which is behind their shop and A1 followed the deceased. She went to a hotel to take tiffin, at 9 AM and while she was half way in taking tiffin, she heard the cries of the deceased and went to the gate of the market, near their shop. A1 to A4 were present there with the deceased and A1 hacked the deceased at left side of the chest with a knife used for cutting pigs and he again beat the deceased on back side with the same knife. The deceased tried to jump the wall and was climbing the wall. Then A1 beat the deceased on his left, with the knife and the accused went away. On that, the deceased came out of the gate and fell down. P.Ws.2 and 3 went to the deceased and advised her to bring their people. She then left to her house. In the meanwhile, P.Ws.2 and 3 shifted the deceased to the hospital.

11. Hence, from the above, it can be understood that there was no opportunity for the deceased to observe P.W.1. P.W.1, in fact, left the place where the deceased was present, for taking tiffin and it is only later, when P.W.1 heard the cries of the deceased, that she saw the deceased and A1 to A4 and she witnessed the hacking made by A1. The scenario of the incident becomes vivid, through her evidence. By the time P.W.1 went to the spot, the attack on the deceased commenced and the deceased was making attempts to escape from them and in that state of mind, it cannot be expected that the deceased would be able to witness the presence of other witnesses and hence, he might not have observed P.W.1, due to which reason, her presence is not stated by the deceased in his statement. The evidence also shows that he fell unconscious.