JUDGMENT : Rao, J. - The Appellants Bula Mohanty and Magikhia Gochhayat were tried along with one Nityananda Khuntia by Shri T.V. Rao, Additional Sessions Judge, Puri, for attempting to commit murder of One Ramini Mohapatra by pouring some acid on him on the night of 4-8-1954 in the town of Puri with the common intention of committing murder u/s 307/34 I.P.C. Nityananda Khuntia was acquitted and the Appellants were convicted u/s 826184, I.P.C. for voluntarily causing grievous hurt by means of "dangerous weapon" to Ramini Mohapatra with the common Intention of causing such offence and were sentenced to undergo rigorous imprisonment for two years each. 2. The prosecution case is that Ramini Mohapatra, the deceased, who was a leading member of Barabati Jaga in the town of Puri was sleeping on the Choutra under a Bakul tree On the night of 4.8.1954 in the company of Ram Chandra Sahinaik, Gangadhar Mohapatra (P.W. 1) and Narayana Pratihari (P.W. 4) at the Barabati Jaga. It appears that these four persons offered Bhog at the temple in that Jaga that night and partook the same and went to sleep at about 11 P.M. Ramini and Ram Chandra were sleeping on the Choutra under the Bakul tree while Gangadhar (P.W. 1) and Narayan (P.W. 4) were sleeping on the Choutra in front of the Jaga house about 15 to 20 cubits away from the Bakul tree. It is stated that at about 2-30 A.M. P.W. 1 woke up due to mosquito bite and was sitting on his bed when he noticed that Appellant Bula Mohanty, Nityananda Khuntia and Appellant Magikhia Gochhayat were coming to the place where Ramini was sleeping. There was a lantern burning at that place. The prosecution case is that Bula Mohanty put out the light and in the darkness Appellant Nityananda called "Magikhia to pour". Immediately thereafter, Ramini raised a scream crying "Malo Bapato". Then P.W. 1 Gangadhar roused Narayan from steep and proceeded towards the spot. The accused persons were seen fleeing into the nearby lane on the eastern side. P.W. 4 Narayan who was holding a torchlight went to chase them. Ramini was found Jumping with pains on his body as some acid was thrown on him. He threw away all his wearing, clothes due to extreme pain. The accused persons were seen fleeing into the nearby lane on the eastern side. P.W. 4 Narayan who was holding a torchlight went to chase them. Ramini was found Jumping with pains on his body as some acid was thrown on him. He threw away all his wearing, clothes due to extreme pain. P.W. 4 went up to the water tap, focussed the torch and found the three accused persons along with three others Krishna Pratihari, Jamini Mohapatra and one other unrecognised person running away. He raised an alarm calling the neighbours for help, on hearing which Biswanath Patnaik (P.W. 8) and Kasinath Patnaik (P.W. 9) came out other houses and enquired into the matter. P.W. 4 Narayan went in search of a rickshaw to take Ramini to the hospital and on the way he met P. W. 6 Hati Panda at the Hajuri temple who had seen Appellant Magikhia running away. It appears, rickshaw was not available and so Ramini went on foot to some distance and got Into a rickshaw and proceeded to the hospital at about 3-30 A.M. accompanied by Narayan and Damo Das. It may be noted that a man proceeding to the hospital must necessarily cross the Police Station, both of which are on the main road. Ramini was admitted In to the hospital by Dr. A. Dutta (P.W. 3) for treatment of extensive burns on his body. The Doctor dressed the burns and gave him treatment. At 8 A.M., P.W. 1 Gangadhar lodged information at the Police Station which was made First Information Report (Ext. 6) by P.W. 11 Inspector Shri B.B. Das and a case u/s 324, I.P.C. was registered against the three accused persons. P.W. 11 directed the Junior Sub Inspector Shri S.B. Das (P.W. 12) to hold investigation. The Investigation Officer then gave a requisition for medical examination of the injured Ramini Mohapatra after seeing him at the hospital and proceeded to the spot where he seized one empty Horlicks bottle (M. Order 1) lying near Choutra ill an open condition. P.W. 11 directed the Junior Sub Inspector Shri S.B. Das (P.W. 12) to hold investigation. The Investigation Officer then gave a requisition for medical examination of the injured Ramini Mohapatra after seeing him at the hospital and proceeded to the spot where he seized one empty Horlicks bottle (M. Order 1) lying near Choutra ill an open condition. He also collected some semi liquid substance sticking at the Choutra in a bottle (M. O. X) for chemical examination, and seized a mat (M.O. II), a pillow (M.O. III), a Lenguti (M.O. IV), two Napkins (M. O. v. and M. O. VI), a sacred thread (M. O. VII), a brass bucket (M. O. VIII) and a lantern (M.O. IX) lying on the Choutra as per the seizure list (Ext. 5). 3. The Medical Officer (P.W. 3) found the following injuries on Ramini Mohapatra. "Burns of the entire face, neck, anterior part of the chest and abdomen due to some acid. The trickling down of the acid on the back was present". He Was of opinion that it was produced probably by some acid. This injury certificate of the Medical Officer (P.W. 3) is as vague as it could be. No description of the burns was noted) though the injury certificate shows that the burns were due probably to some add. The patient remained io the hospital for about ten moots for under going treatment and he died eventually on 19.6.1951) at 2 A.M. No report was made immediately after the death of Ramini, an in patient In the hospital, to the police though it is in evidence that by that time a charge sheet was filed against the accused and the deceased was even examined as a prosecution witness, in that case on commission in the hospital itself. As no death report was sent to the police and the Investigating Officer came to learn about the death about a month later on 20-7-1955 when he made enquiry at the hospital and the death report was obtained on 22-7-1955 from Dr. D. Dutta (P.W. 5) which is Ext. 2. As already stated, by then the investigation of the information lodged before the police on 5.8-1954 was already completed and a chargesheet Was submitted- u/s 826, I.P.C. After the death of the deceased, additional evidence was recorded by the committing Magistrate u/s 219, Code of Criminal Procedure relating to the cause of death. 2. As already stated, by then the investigation of the information lodged before the police on 5.8-1954 was already completed and a chargesheet Was submitted- u/s 826, I.P.C. After the death of the deceased, additional evidence was recorded by the committing Magistrate u/s 219, Code of Criminal Procedure relating to the cause of death. 4. The motive for the occurrence is said to be enmity between the deceased Ramini Mohapatra and the accused persons who are all member of the Barabati Jaga. One Nand kumar Sukla (P.W. 7), a brother of the Mahant of Mahiprakash Math was the master of Appellant Bula Mohanty whom he discharged and took the help of the deceased Ramini Mohapatra when Bula Mohanty threatened to extort money from him. According to the prosecution case, Buta Mohanty consequently bore grudge and filed a petition u/s 107, Code of Criminal Procedure on 31-7-1954 against Nanda Kumar and this was the immediate case of the occurrence. 5. It is the evidence of the Investigating Officer that he got the scrappings of the acid collected from the spot informally tested by one Professor Shri N.C. Das of Puri College who is P.W. 2 who found it to be concentrated nitric acid. It may be noted that neither the wearing apparel seized at the spot immediately on the next morning by the Investigating Officer nor the empty Horlicks bottle which contained some traces of acid and also a thumb impression on it were not sent to any chemical expert by the Investigating Officer. 6. There is also on the record Ext. A slated to be a dying declaration of the victim Ramini Mohapara. The deposition of Ramini Mohapatra In the case originally launched G.R. Case No. 977 of 1954 was admitted in evidence u/s 38 of the Evidence Act. 7. The Appellants pleaded not guilty and stated that they were falsely implicated due to enmity. The plea of the other accused who was acquitted was also the same. Appellant Bola Mohanty stated that Nand Kumar Sukla got him Implicated falsely as he owed him arrear salary which he demanded from his master. Appellant Magikhia Gochhayat stated that he worked as a mason under one Sivaram Pati, a member of the Barabati Jaga who owed him wages for such service and when demanded he got him falsely implicated. 8. Appellant Bola Mohanty stated that Nand Kumar Sukla got him Implicated falsely as he owed him arrear salary which he demanded from his master. Appellant Magikhia Gochhayat stated that he worked as a mason under one Sivaram Pati, a member of the Barabati Jaga who owed him wages for such service and when demanded he got him falsely implicated. 8. The deceased who was admitted into the hospital on 5-8.1954 was discharged on 0-12-1954, but again surprisingly he was readmitted Into the hospital where he remained for another 7 month; when he expired. The cause of death was slated to be one of heart failure due to terminal diarrhoea ( toxic absorption) after extensive burns and ulcers. The patient was under the treatment of Dr. A. Mohanty, the Assistant Surgeon who was in charge of the Surgical Ward. He was not examined in the case. It is in evidence that when Ramini Mohapatra was collapsing on the night of his death, Dr. Mohanty Was not even informed by the Medical Officer (P.W. 5) on night duty in the hospital. He was consequently not present when Ramini died and there Is no mention by him in the bed-head tickets (Exts. 4 and 4/a) which do not contain the complete clinical charts of Ramini the cause of death. It was only P.W. I) Dr. D.N. Dutta who was on night duty for emergency work at the hospital. According to his evidence, he found the condition of the patient getting serious from 9 P.M. onwards and recorded the cause of death when he died. He simply noted "Heart failure" in the column of cause of death. As already stated, this was not reported to the police and the body was allowed to be removed by the relatives without holding any Inquest over the dead body by the police or arranging for any post-mortem examination. Dr. D.N. Dutta (P.W. 5) tried to explain this grave omission by saying that he was not aware that the patient was concerned in the police case as there was no note in the bed-head ticket that it was a police case whereas Dr. A. Dutta (P.W. 3) who admitted the patient into the hospital on the night of 4.8.1954 stated that he gave a report to the police after admission but he did not know the Cause of death. A. Dutta (P.W. 3) who admitted the patient into the hospital on the night of 4.8.1954 stated that he gave a report to the police after admission but he did not know the Cause of death. He also stated that he gave the details of the cause of death at the bottom of the bed-head ticket. As observed by the learned Additional Sessions Judge it is unfortunate that necessary Information was not given to the police immediately after the death although the patient was examined In the hospital by the Magistrate who conducted the commitment enquiry and recorded his statement, and a dying declaration (Ext. A) was also recorded by the Magistrate soon after the admission of the patient into the hospital. This shows a careless, if not a culpable, negligence of duty on the part of the hospital authorities. It is surprising that P.W. S who reserved his opinion about the seriousness of the injury at the time of admission and subsequently came to the conclusion that it was grievous in nature caused by some acid, was not able to know what kind of acid was poured on the deceased, but was only of the opinion that the injuries could have been caused by pouring some acid. In this case, there is no expert evidence from the Chemical Examiner as to what kind of acid was used in causing the injuries on the deceased. The offence is sought to be proved by the evidence of Ramini Mohapatra while he was alive and his associates at the Chootra, Gangadhar Mohapatra (P.W. 1) and Narayan pratihari (P.W. 4) besides three other witnesses P.Ws. 6, 8 and 9 who claim to have heard about the occurrence from Narayan immediately after the incident. Ramini Mohapatra's evidence was recorded In the hospital on 8.2-1955, nearly six months after the occurrence. From his evidence it appears that on the night of the occurrence Ramini settled the dispute between Nanda Kumar Sukla and Sibram Pati when the latter paid Rs. 700/. Ramini Mohapatra's evidence was recorded In the hospital on 8.2-1955, nearly six months after the occurrence. From his evidence it appears that on the night of the occurrence Ramini settled the dispute between Nanda Kumar Sukla and Sibram Pati when the latter paid Rs. 700/. for repairing the Barabati Jaga Ghar that accused Nityananda Khuntia, Bola Mohanty, Magikhia Gochhayat, Kosa Paatihari, Badia Patihari and Jamini were present with Gangadhar P.W. 1 and Narayan (P.W. 4) j that all of them offered Bhog and partook it; that the accused persons along with Rosa and Badia demanded share in the money paid by Sibram that Ramini declined and then they left the place. Ramini further stated that he slept on the Chontra below the Bakul tree with a lantern burning and a bucket kept near his head; that he was sleeping on the mat with a pillow under his head; that his brother Ganga and his friend Narayan were sleeping On another Choutra 15 to 20 cubits away; that at about 2. 30 or 3 A.M. he suddenly felt burning sensation on his body and got up shouting io agony; that he found accused Bula, Magikhia and Nityananda along with Badia, Kusa and Jamini running away at a distance of 10 cubits from him towards the neighbouring lane; that Narayan and Ganga came to him running and he ran towards the lane in distress; that he found some liquid substance over the affected parts of the body; that the neighbours Biswanath Patnaik (P.W. 8), Kasinath Patnaik (P.W. 9), Buxi Adhikari and Nata Babu compounder saw him and he was told by the compounder that some acid was thrown on him; and that he threw away his clothes and went to the hospital in a rickshaw. This evidence of Ramini Mohapatra could not be tested by cross-examination, as cross-examination was declined in the committal court. His dying declaration was recorded on 6.8-1954 by a Magistrate the day next following the occurrence. It is curious that the prosecution did not care to examine the Magistrate who recorded the dying declaration. It was tendered in evidence by the defence, marked Ext. A for purpose of contradiction. In this dying declaration also, Ramini implicated accused Bula and Magikhia besides Kusa, Badia and Jamini as seen running away after pouring the acid on him. It is curious that the prosecution did not care to examine the Magistrate who recorded the dying declaration. It was tendered in evidence by the defence, marked Ext. A for purpose of contradiction. In this dying declaration also, Ramini implicated accused Bula and Magikhia besides Kusa, Badia and Jamini as seen running away after pouring the acid on him. Be did not implicate accused Nityananda Khuntia as being recognise either by voice or by face anywhere near about the place of occurrence among the people that ran away. The statement, as noted by the learned Sessions Judge, made in the dying declaration varies in many important respects with that stated in his evidence. In both these statements it is significant that the presence of Ram Chandra Sahinaik on the Choutra on the night of occurrence beside him was not at all stated. This Ram Chandra, it may be noted, was admittedly not on good terms with Ramini and his brother Ganga as he had filed a criminal case u/s 825, I.P.C. against them six months before the occurrence in which case they were acquitted. Consequently it is highly improbable that Ram Chandra would be sleeping or allowed to sleep near Ramini on the date of occurrence. Be was also not examined by the prosecution. Ram Chandra had no acid burns on his body although the mat on which he is said to have slept contained acid stains, though according to the prosecution case the acid was thrown at Ramini from a bottle and Ram Chandra was sleeping by the side. On the strength of this evidence as also some other factors noted by the learned Additional Sessions Judge, he came to the conclusion that Nityananda Khuntia was not connected with the occurrence and acquitted him. 9. It is only P.W. 1 Gangadhar Mohapatra who claims to have seen the actual arrival of the accused persons on the spot in the lamp light and their preparation for pouring the acid on the deceased. Be was sleeping 3& cubits away from the spot. Be did not see the actual pouring, but immediately thereafter he heard Ramini screaming. He did not go to chase the accused persons who were running away according to his evidence, but it was P.W 4 Narayan who had gone till the water tap and returned with the Bhadraloks after raising an alarm. Be did not see the actual pouring, but immediately thereafter he heard Ramini screaming. He did not go to chase the accused persons who were running away according to his evidence, but it was P.W 4 Narayan who had gone till the water tap and returned with the Bhadraloks after raising an alarm. Be did not even escort Ramini to the hospital. It was only P.W. 4 . - who followed Ramini to the hospital. He went at 8 O'clock in the morning to the Police Station to give information even without seeing the condition of his brother in the hospital. But nevertheless he explains the delay in lodging the information by saying that it was due to escorting Ramini to the hospital. He did not state that there was in addition to the three accused persons any other person who was running away. P.W. 4: Narayan stated that he focussed a torch tight and he saw six persons fleeing off out of whom he could identify the three accused persons besides Kusa and Jamini. It is also curious to quote that when the occurrence is the throwing of some acid on Ramini, P.W. 4: stated that he found Kusa holding a Farsa and Jamini a lathi among the culprits that fled away. But this statement is not corroborated by any other witness nor Was it mentioned in the First Information Report. P.W. 4: admits that Biswanath Patnaik (P.W. 8) came to him soon after hearing the Halla to the spot and informed him to send Ramini to the hospital as advised by the compounder. P.W. 8 stated that after coming to the spot, he went back to the compounder's place and consulted him about Ramini's condition. The compounder is not cited as a witness. The statement of the deceased that the compounder came to the place of occurrence is quite at variance with this evidence. Biswanath and Kasinath who had gone to the spot on hearing the alarm did not hear anything from Ramini as to the identity of the culprits. The evidence of P.W. 6 Hati Panda as to having seen Appellant Magikhia running away was not accepted by the learned Additional Sessions Judge. The learned Additional Sessions Judge, after a discussion of the evidence, mainly relied upon the evidence of P.Ws. 1 and 4 and the deceased Ramini in convicting the two Appellants. The evidence of P.W. 6 Hati Panda as to having seen Appellant Magikhia running away was not accepted by the learned Additional Sessions Judge. The learned Additional Sessions Judge, after a discussion of the evidence, mainly relied upon the evidence of P.Ws. 1 and 4 and the deceased Ramini in convicting the two Appellants. The evidence of P.W. 1 that he actually saw the three accused persons in the lamp tight arriving at the spot was not believed by the learned Additional Sessions Judge. The night was, according to the prosecution evidence, a dark night. The torch tight alleged to have been focussed by P.W. 4 is not seized. The learned Additional Sessions Judge came to a categorical finding that the story given by Gangadhar (P.W. 1) and Narayan (P.W. 4) cannot be swallowed as the whole truth. On that evidence which he did not believe, he convicted the Appellants saying that evidence was corroborated by the evidence of the deceased Ramini, The evidence of the deceased Ramini, as already shown, is inconsistent with the evidence of P.Ws. 1 and 4. The bed-head ticket shows that on several days the eye of Ramini was treated by saline washes and application of antibiotic ointments. This indicates that some acid must have entered the eye. If that were so, it is not probable that Ramini, the deceased could have seen the culprits or identified them. Further the night was admittedly a dark night, the lantern was put out and there was a Bakul tree near the Choutra where the deceased was sleeping. There are many discrepancies in the evidence of the prosecution witnesses as to the motive. The evidence also shows that there are many person inimically disposed towards Ramini. I am clearly of opinion, on a careful scrutiny of the evidence, that the learned Additional Sessions Judge is wrong in coming to a conclusion that the prosecution case is proved against the Appellants on the evidence of P.Ws. 1 and 4 coupled with that of the deceased Ramini. 10. The symptoms of burns by throwing nitric acid on a human body can very easily be detected. But It is surprising that in this case even the Medical Officer in charge of the Government Hospital at Pori could not give the description or the colour of the injuries or of the body near the injuries. 10. The symptoms of burns by throwing nitric acid on a human body can very easily be detected. But It is surprising that in this case even the Medical Officer in charge of the Government Hospital at Pori could not give the description or the colour of the injuries or of the body near the injuries. The bottle from which the acid is said to have been thrown was recovered at the spot containing some traces of acid. It also contained a thumb impression. It must have been the thumb impression of the person who held the bottle and threw the acid. The Investigating Officer admits that there was a thumb impression on the bottle at the time he seized the same. No attempt was made to get this thumb impression verified. No attempt was made by the Investigating Officer to get either the remnant of the acid on the bottle or the scrappings which he gathered, to be examined by an expert as to what acid was actually used. John Glaister in his book of Medical Jurisprudence and Toxicology, 9th Edition, at page 228 says, The diagnosis of lesions due to burning by corrosives depends upon the following points: (1) The character of the lesions; (2) the Marks of staining, due to chemical action; (5) the absence of signs produced by fire or scalding liquids j (4) the identity by analysis of the corrosive used. The lesions do not present the same variation in appearance as those by fire, or the characteristic vesication of scalding: The colour of the stains upon the skin or clothing may afford a guide to the nature of the corrosive. Nitric acid produces a yellowish stain, sulphuric acid and caustic alkalis leave reddish-brown or dirty-brown stains, while hydrochloric acid and carbolic acid cause whitish or grevish yellow stains on the skin and mucous membrane. Modi in his Medical Jurisprudence and Toxicology, 12th Edition, at page 460, in dealing with properties of Nitric Acid, says, The skin and cloth which come into direct contact with the acid are coloured yellow. These yellow stains turn to orange on the addition of ammonia water. Modi in his Medical Jurisprudence and Toxicology, 12th Edition, at page 460, in dealing with properties of Nitric Acid, says, The skin and cloth which come into direct contact with the acid are coloured yellow. These yellow stains turn to orange on the addition of ammonia water. In Taylor's Principles and Practice of Medical Jurisprudence Volume 1, 10th Edition, at page 506 it is stated, On such occasions proof of the corrosive nature of the liquid is required, and this is easily obtained by a chemical examination of a part of the clothing.... When some corrosive has been thrown at a persons and has reached either the skin or clothing, chemical evidence of the nature of the liquid thrown is of very great importance. The colour of the injured part may help. Thus sulphuric acid has a tendency to char tissues, and so may leave a dark or even black mark; nitric acid produces yellow stains on the clothing, and hydrochloric stains is; whitish or grey. On the clothing, nitric acid frequently makes a yellowish red stain, whereas sulphoric usually causes destruction of the material... If enough of the Quid still remains on the skin or clothing to admit of extraction and analysis, such should be made. 11. In the face of these definite statements made by the authorities on Medical Jurisprudence, it is lamentable that the Medical Officer in charge of the hospital never cared to note down any of these symptoms and the Investigating Officer never cared fo get the expert's opinion though he seized the bottle and the clothing of the deceased Ramini as also some scrappings of the acid thrown. According to the evidence of P.W. 2, the Professor of Pilei College to whom the Investigating Officer took the scrappings for test, he (I. O.) informed him that he would be sending it for chemical examination, he was not at an serious about the test and that he did not give any written opinion as the examination was done informally without any requisition through proper channel. The bottle had also a mark of thumb impression outside It. The Investigating Officer admitted so in his evidence. P.W. 10 clearly stated that there was a clear thumb impression on the bottle. The bottle had also a mark of thumb impression outside It. The Investigating Officer admitted so in his evidence. P.W. 10 clearly stated that there was a clear thumb impression on the bottle. Yet in this case no attempt seems to have been made to get the expert's opinion about the thumb impression which, if obtained, could have enabled the Court to find out the culprit. It is lamentable that in this age of space travel even these elementary tests are not made by the Investigating Officers. In my opinion, the investigation in this case is, to say the least, an irresponsible investigation. The learned Counsel submitted that there is a suggestion by the defence that in this occurrence some influential and rich persons Were Involved and it is on this account that the Investigation as well as the reports of the Medical Officers were not as they ought to be. But there is no evidence on record that such was the case. It was only a suggestion. 12. I am, therefore, of opinion that the learned Additional Sessions Judge is wrong in convicting the Appellants u/s 826, I.P.C. It is not proved beyond all possibility of reasonable doubt that the Appellants caused grievous hurt to Ramini Mohapatra by any corrosive substance. Their conviction and sentence are set aside, the appeal is all owed and the Appellants are acquitted of the offence u/s 326, I.P.C. Their bail bonds are cancelled. Appeal allowed. Final Result : Allowed