Judgment :- Karpagavinayagam, J. The appellant was the accused in S.C. No.45 of 1987 on the file of the 11th Additional Sessions Judge Madras. He was convicted for the offence under Sec.302,‘I.P.C. and sentenced to undergo life imprisonment. 2. The case against the appellant is that, on 27. 1986, at about 8.30 p.m., at No.23, Melpadi Muthu Naicken Street, Nungambakkam, Madras-34, the appellant threw acid on the face of one Ramani Ammal, as a result of which she died on 8. 1986 at 4.30 p.m. at Kilpauk Government Hospital. The brief facts are as follows: (a) The deceased Ramani Ammal is the mother of P.W.4 Ramesh Babu. She married one Ramadoss in the Year 1964. She got divorce from her husband in the year 1975 and shifted her residence from Purasawalkam to Nungambakkam. She stayed at No.24, New Street, Nungambakkam along with her son P.W.4. She purchased the house alongwith the vacant site in the year 1975. P.W.1 Janaki Ammal was the tenant under the deceased for three years prior to the date of occurrence. (b) The deceased wanted to construct a new building after demolishing the old house. So, she sold 1/2 portion of the land and approached P.W.3 Parthasarathy who is a building contractor for the purpose of demolition of her old house and reconstruction. Out of the sake amount she also discharged some loan indebted to P.W.3. P.W.3 by way of helping the deceased undertook the work of demolition and re-construction and finished the construction of the ground floor and the 1st floor with the available amount with the deceased. From 1980, P.W.3 Parthasarathy developed illicit intimacy with the deceased. So, out of his own money he was constructing second floor of the same building. (c) P.W.3 already married and his wife is one Prabavathi whose younger brother is the appellant Ganesan. On knowing the illicit intimacy between P.W.3 and the deceased Ramani Ammal, Prabavathi, the wife of P.W.3 objected to the con-duct of P.W.3 and complained to her brother, the appellant herein. Though he was questioned by his wife, P.W.3 did not mend his ways and continue to have the illegal affairs with the deceased. On knowing the illicit intimacy between P.W.3 and the deceased Ramani Ammal, Prabavathi, the wife of P.W.3 objected to the con-duct of P.W.3 and complained to her brother, the appellant herein. Though he was questioned by his wife, P.W.3 did not mend his ways and continue to have the illegal affairs with the deceased. The appellant and P.W.3’s wife, on hearing the news that P.W.3 spent a lot of money for the construction of the building for the sake of the deceased, the appellant get angry over this and took Prabavathi to P.W.8 Radha who is the elder sister of P.W.3. When both of them complained to P.W.8, P.W.8 informed them that she would settle the problem after the construction work is over. She also requested the appellant not to have any quarrel with P.W.3 or the deceased till then. However appellant challenged that he would however, finish the life of both P.W.3 and the deceased within 20 days. Then he left along with his sister Prabavathi. Thereafter, Prabavathi also left from the matrimonial home and joined with her brother, the appellant herein. (d) On 27. 86, at about 8.15 p.m., P.W.4 Ramesh Babu and the deceased were inside the house. At that time, the appellant Ganesan came there and informed the deceased that he was the person who was sent by P.W.3 to fix the electricity meter inside the house. The deceased suspected him since the electricity meter had already been fixed by another person. So, the deceased asked him to go away telling that the work of fixing the meter was already over. However, on suspecting the appellant, she went to the house of P.W.1 Janaki Ammal who is in the adjacent road, for the purpose of phoning up to P.W.3 for verification. P.W.7 Natarajan was the mason employed by P.W.3 for doing the construction work in the house of deceased. At that time, P.W.7 was about to leave the place after finishing him work at about 8.15 p.m. After conveying this to P.W.4 and P.W.7, the deceased went to the house of P.W.1 for phoning up to P.W.3. (e) P.W.1’s husband is doing wholesale textile business. She would also help her husband by selling the textiles on instalment basis to the women whoever come for purchase in her house. She is having a telephone in her house. (e) P.W.1’s husband is doing wholesale textile business. She would also help her husband by selling the textiles on instalment basis to the women whoever come for purchase in her house. She is having a telephone in her house. Since for some time earlier P.W.1 was tenant under the deceased, she would allow the deceased to use her telephone whenever she required. On 27. 1986 at about 8.15 p.m., the deceased entered into the house of P.W. 1 and was ringing up to P.W.3. P.W.1 at that time came out and was talking with one Bhanumathiammal, her customer. After sending her off, at about 8.30 p.m. she was about to enter into the house. At that time, she heard a cry from the deceased shouting as, and she also found that the victim deceased came out of the house emitting smoke from her saree. On hearing the noise, P.W.4 and P.W.7 also rushed to the scene. Both of them found the accused running from the place. P. W.2 one Subramani is having a tinkering shop which is situated opposite to the house of P.W.1. When P.W.2 and others who were inside the shop on hearing the sound rushed to the house of P.W.1 along with others. Immediately thereafter, P. W.2 and P.W.4 took the victim in an auto and admitted her in the Kilpauk Medical College Hospital. (f) P.W.5 Doctor Abdul Rahim attached to the Kilpauk Medical College Hospital examined the victim at about 8.40 p.m. When she was questioned the victim told him that one unknown person caused injury on her by throwing acid bottle. He found burn injuries on her face, right shoulder, on both hands, chest and abdomen portion and thighs. Then she was sent to the emergency ward. Ex.P-1 is the Accident Register. P.W.6 Dr.Sudhakar Prasad was in the Emergency Ward on 27. 1986 and at about 8.45 p.m. he examined the victim and gave treatment. The victim told him also that on 27. 1986, at about 7.45 p.m. while she was talking in telephone, an unknown person threw acid bottle and caused the burn injuries all over her body. Ex.P-2 is the case sheet which was prepared by Dr.Manohar who was also assisting P.W.6. The victim told him also that on 27. 1986, at about 7.45 p.m. while she was talking in telephone, an unknown person threw acid bottle and caused the burn injuries all over her body. Ex.P-2 is the case sheet which was prepared by Dr.Manohar who was also assisting P.W.6. (g) P.W.14 Head Constable attached to the Nungambakkam Police Station received the intimation from the Kilpauk Medical College Hospital at 10.00 p.m. informing that the victim Ramani was admitted in the hospital with burn injuries. He went to the hospital and examined her. She gave a statement which was reduced to writing by P.W.14 and thumb impression was contained thereon. Ex.P-15 is the complaint. He, then came to the police station and registered a case in Crime No.1136 of 1986 for the offences under Secs.448 and 307, I.P.C. Ex.P-16 is the printed F.I.R. He despatched the documents to the court as well as to the senior officials. P.W.15 Inspector of Police, on receipt of message at 10.30 p.m. came to the police station and took up the investigation. He went to the Hospital and recorded a statement from the victim which is Ex.P-17. He also recovered M.Os.2 to 4 the clothes worn by the deceased in the presence of P.W.9 under Ex.P-4 mahazar. (h) In the meantime P.W.15 examined P.Ws.3,4 and 5. He also sent a requisition to the Magistrate requesting him to record dying declaration from the victim. Thereafter, he went to the spot and prepared Ex.P-5 observation mahazar and recovered broken bottle (M.O.5) with glass pieces under Ex.P-6. He also drew the rough sketch Ex.P-18. Then he examined P.W.1 Janaki, P.W.2 Subramanian and one Kuppusamy. (i) In the meantime P.W.10 Magistrate received the requisition at about 1.05 a.m. on 27. 1986 and came to the Kilpauk Medical College Hospital and there he recorded statement from the victim between 1.30 a.m. and 2.00 a.m. After reading over the same to her, he obtained her thumb impression, on her admitting that the contents therein are true. P.W.10 also obtained a certificate from Doctor Manohar who was present then. The said statement and the certificate is Ex.P-8. On 27. 1986 at about 9.00 a.m. P.W.3 Parthasarathy came to the Police Station and gave the photograph of the appellant, since he is the suspect involved in the crime. He showed the same to P.W.4, son of the deceased. P.W.10 also obtained a certificate from Doctor Manohar who was present then. The said statement and the certificate is Ex.P-8. On 27. 1986 at about 9.00 a.m. P.W.3 Parthasarathy came to the Police Station and gave the photograph of the appellant, since he is the suspect involved in the crime. He showed the same to P.W.4, son of the deceased. On seeing the photo, P.W.4 said that he was the person who came to the house of the deceased on the pretext of fixing the electric meter in the house. On 27. 1986, P.W.15 went to the Kilpauk Medical College Hospital and showed the photograph of the appellant to the victim/ deceased who identified that the person in the photograph was the culprit. He also recorded a statement from the deceased which is Ex.P-19. (j) P.W.16 Murugavel, the successor of P.W.15 took up charge as Inspector of Police of Nungambakkam Police Station on 8. 1986 and continued the investigation in this case. On 8. 1986, in spite of the treatment given by the doctors, the deceased died. So from the hospital, death intimation was sent to the concerned police, which is marked as Ex.P-3. On receipt of this intimation P.W. 16, altered the case into Sec.302, I.P.C. and sent express report Ex.P-20 to the court, as well as to the senior officials, he went to the Kilpauk Medical College Hospital and held inquest over the dead body of the deceased on 8. 1986 between 9.00 a.m. and 11.15 a.m. He conducted inquest in the presence of the Panchayatdars and examined P.W.3, P.W.4, P.W.8 and others. He prepared Ex.P-21 inquest report. He sent requisition Ex.P-9 to the doctor P.W. 12 for post-mortem. P.W.12 doctor Ankayarkanni, on receipt of the requisition commenced the postmortem on 8. 1986 at about 12.30 p.m. and found the following injuries: 1. In facted deep acid burns over the face, neck, anterior half of the scalp, anterior aspect of both the upper limbs, upper medial quadrant of the right breast, upper half of the left breast, an area of 4 cms. in breadth, to a length of 6 cm. over the centre of the abdomen anterior aspect of the middle third of the right thigh, lateral aspect of the middle 3rd of left thigh and centre of the back of gluteal region amounting to 30% of surface area of the body. in breadth, to a length of 6 cm. over the centre of the abdomen anterior aspect of the middle third of the right thigh, lateral aspect of the middle 3rd of left thigh and centre of the back of gluteal region amounting to 30% of surface area of the body. In some of the areas the margins of the burnt areas appeared black and leathery in consistency. She also found her chambers empty, stomach empty and all other internal organs were found congested. She was of the opinion that the deceased would appear to have died of shock due to delayed complications of acid burns. (k) On 20.8.1986, at about 4.30 p.m., P.W.16 Inspector of Police arrested the accused. He found some burn injuries on his hand. On interrogation, he gave a statement that he sustained injuries on 27. 86 and that on the next day 27. 1986 he went and took treatment from doctor P.W.11. He also took P.W.16 to the St.John Hospital at Teachers colony in Erukkancheri and identified P.W.11 doctor. P.W.11 doctor Bhushan Raj gave a statement to P.W.16 that on 27. 1986 at about 7.30 p.m., the appellant came to him and took treatment for the injuries sustained on the hands due to acid. He also produced the registers to the police officer to show that the appellant came to the hospital and took treatment for the said injury, where his patient No. is noted as 8302 in page No.521. Thereafter, P.W.16 arranged to sent the accused for further examination through another doctor P.W. 12. (l) P.W12 doctor Angayarkanni, examined the accused and found the burn injuries on the right hand. He gave certificate Ex.P-11. Thereafter he arranged to sent the M.Os along with the requisition P-12 to the court for causing them to be examined in the forensic Laboratory. P.W.13 court clerk sent these M.Os. with the covering letter of the Magistrate which is marked as Ex.P-13 for their chemical analysis. Ex.P-14 is the Chemical analyst’s report received by the court. After completing the investigation, on 211. 1986, P.W.16 filed charge sheet against the appellant under Sec.302, I.P.C. 3. On committal, the trial court framed charges based on record and questioned the accused. The accused pleaded not guilty and wanted to face the trial. 4. Ex.P-14 is the Chemical analyst’s report received by the court. After completing the investigation, on 211. 1986, P.W.16 filed charge sheet against the appellant under Sec.302, I.P.C. 3. On committal, the trial court framed charges based on record and questioned the accused. The accused pleaded not guilty and wanted to face the trial. 4. In order to prove the charges, the prosecution examined P.Ws.1 to P.W.16 and filed Exs.P-1 to P-21 and produced M.Os.l to 5. 5. After the evidence was over, the accused was questioned with reference to the incriminating materials found in the evidence brought on record. The appellant chose to deny his complicity in the commission of crime and would however admit that he was treated by P.W. 12 for the burn injuries sustained on his hands. But, he denied having gone to P.W.11 for taking treatment. He further stated that on 27. 1986 at about 8.15 p.m., he was in the house of P.W.3 alongwith him, that at that time on receiving some telephonic call, P.W.3 called him to accompany him since Ramani Ammal is in danger and they went to the Kilpauk Medical College Hospital and saw the injured with burn injuries, that her son Ramesh was also there and that the next day P.W.3 came to his house and informed him that police had suspected him and so he applied some medicine on his body stating that if any trouble comes to him from police, he would save him from the case and that then he made arrangement to book him in this case through the Inspector of Police. However, no evidence was adduced on the side of the accused. 6. On appraisal and appreciation of the evidence let in by the prosecution and the statement given by the appellant under Sec.313, Crl.P.C, the trial court found the appellant guilty for the offence under Sec.302, I.P.C. and dealt with him as referred to earlier. Learned counsel for the appellant took us through the entire evidence contended that there is no eyewitness and the circumstantial evidence let in by the prosecution also would not clinchingly connect the accused with the commission of the crime and therefore, he contended that the prosecution has failed to prove its case as there are many missing links and so, the appellant has to be acquitted by giving the benefit of doubt. Per contra, the Additional Public Prosecutor pointed out several portions of the evidence which are incriminating and submitted that the verdict given by the trial court was correct and proper reasonings have been given for the conviction imposed upon the accused. 7. The following are the various piece of materials quoted by the prosecution in order to prove the guilt of the appellant: (1) 20 days prior to the occurrence, the appellant along with the wife of P.W.3 went and challenged to P.W.8, sister of P.W.3 that he would kill both the victim Ramani Ammal and P.W.3 who was helping the victim in the work of construction and also since he developed intimacy with her, by leaving his wife in the lunch. .(2) P.W.4 son of the deceased and P.W.7 mason saw the accused near the place of occurrence at or about the time of the incident. .(3) Ex.P-15 the complaint given by the victim/ deceased to P.W. 14 constable, Ex.P-17 the statement recorded from the victim by P.W.15 Inspector of Police, Ex.P-19 the statement of the deceased given to P.W.15 pointing out the identity of the culprit by showing the photo. .(4) Ex.P-8 dying declaration recorded by P.W.10 Magistrate. .(5) The evidence of P.W.11 to the effect that he gave treatment to the accused for the burn injuries which was on his hands on the next day of the occurrence, i.e., on 27. 1986, and .(6) the evidence of P.W. 12 doctor who examined the accused after arrest on 28. 86 gave opinion in Ex.P-11 that the injuries would have been occurred two weeks prior to the date of examination. 8. The motive in this case as put forward by the prosecution case is that P.W.3 had illicit intimacy with the deceased from 1980 to 1986 and the intimacy had gone to the extent of P.W.3 helping the deceased by spending his huge money for constructing the second floor of her house. That was objected to by the wife of P.W.3. Even then, P.W.3 did not stop his connection with the deceased. Therefore, both the appellant and his sister, i.e., the wife of P.W.3 went and complained to P.W.8. P.W.8 sister of P.W.3 instead of solving the problem then and there, pacified the appellant stating that she would try to settle this problem after the construction was over. Even then, P.W.3 did not stop his connection with the deceased. Therefore, both the appellant and his sister, i.e., the wife of P.W.3 went and complained to P.W.8. P.W.8 sister of P.W.3 instead of solving the problem then and there, pacified the appellant stating that she would try to settle this problem after the construction was over. Therefore, the appellant challenged that he would kill both the victim and P.W.3 within 20 days. This aspect of evidence is spoken to by P.W.3 and P.W.8. 9. Regarding the occurrence, as pointed out by the learned counsel for the appellant, there is no eye witness. The Apex Court in the decision reported in Gambhir v. State of Maharashtra, A.I.R. 1982 S.C. 1157 held as follows: "The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) these circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilty of the accused but should be inconsistent with his innocence." 10. In the light of the legal position as referred to above, about the circumstantial evidence, we have to endeavour to analyse the materials available in this case whether the circumstantial evidence in the instant case satisfies the requirements of law. It is submitted by the learned counsel for the appellant that P.W.4 could not have seen the accused near the place of occurrence on that particular date. According to P.W.4, he already knew the accused since he happened to see him previously along with P.W.3. If he had actually seen him he would have mentioned this to P.W.3 or to the deceased about the said fact. In that event, even in the F.I.R. itself this particulars about the accused should have been given by the deceased. According to P.W.4, he already knew the accused since he happened to see him previously along with P.W.3. If he had actually seen him he would have mentioned this to P.W.3 or to the deceased about the said fact. In that event, even in the F.I.R. itself this particulars about the accused should have been given by the deceased. The evidence of P.W.3 would make it clear that till next day morning, they were not able to find out the identify of the real culprit and only after identifying the photo of accused by the deceased, they came to know that this appellant alone had committed this offence. So in such circumstances, as pointed out by the counsel for the appellant, we are unable to place any reliance on the evidence of P.W.4. But, however, there are other available materials which are in our view, are sufficient to impose conviction. As already referred, the motive aspect has been established through the evidence of P.W.3 and P.W.8. The dying declaration given by the deceased on the very same night to the Magistrate and to the Head Constable in P-15 and the Ex.P-19 statement given to P.W.1 6 Inspector of Police would as well shown the consistency about the manner of occurrence which had taken place inside the house of P.W.1. The more important incriminating circumstance is the statement of the deceased Ex.P-19 which has been given to P.W.15 by showing the identify of the person from the photo. The another vital piece of circumstance is the accused went to P.W.11 doctor on the next day of the date of occurrence and get treatment for the burn injuries sustained by him on his hand. Of course, he was arrested by P.W.16 only on 28. 1986 however we cannot forget the fact that P.W.11 doctor was traced only at the instance of the accused who identified P.W.11 also. P.W.16 Inspector of Police obtained a statement from P.W.11 to the effect that he treated the accused for burn injuries on the next day to the date of occurrence. Again, at the request of P.W. 16 Inspector the injuries on the accused which also would corroborate the evidence of P.W.11. P.W.16 Inspector of Police obtained a statement from P.W.11 to the effect that he treated the accused for burn injuries on the next day to the date of occurrence. Again, at the request of P.W. 16 Inspector the injuries on the accused which also would corroborate the evidence of P.W.11. No doubt it is true that it is only for the prosecution to establish the case of the prosecution by standing on its own legs and it cannot take advantage of the inconsistent defence taken by the accused at various stages. But, in the case of circumstantial evidence, the statement of the accused also plays an important role in the appreciation of the the totality of the circumstance. In this case, the accused/ appellant under Sec.313, Crl.P.C. statement admitted that he was taken to P.W. 12 doctor by P.W.16 Inspector of Police and treatment was given to him. But, he denied having gone to P.W.11 for taking treatment on the next day of the occurrence. The another important factor is that he gave a statement under Sec.313, Crl.P.C. that P.W.3 applied some medicine on his hand and gave assurance that if he was booked in the case he would save him by his influence. Such statement is not only artificial but also reflects the falsity of the defence in view of the overwhelming materials available in the form of various piece of circumstances as referred to above, which would go to show that the appellant and the appellant alone is the cause for the death of the deceased by throwing acid on the body of the person. So we are of the definite view that the materials collected and produced before the court, even if the evidence of P.W.4 is eschewed would reveal that these materials are consistent to point out the guilt of the accused and inconsistent for his innocence. So, we have no hesitation in holding that the prosecution and established its case beyond doubt with reference to the manner of occurrence and the participation of the appellant in the commission of the crime. 11. So, we have no hesitation in holding that the prosecution and established its case beyond doubt with reference to the manner of occurrence and the participation of the appellant in the commission of the crime. 11. Regarding the nature of the offence, learned counsel for the appellant argued that as per the opinion of the doctor the death was not the direct result of said injuries and due to some other complications and that therefore the offence would fall only under Sec.304, Part II and not under Sec.302, I.P.C. In order to substantiate his submission, he relied on the decision reported in Ganga Dass v. State of Haryana, 1994 Crl.L.J. 237, wherein it has been held as follows: “Learned counsel for the appellant submits that even if the entire prosecution case is to be accepted, an offence punishable under Sec.302, is not made out. We find considerable force in this submission. As stated above the occurrence took place on 111. 1988 and the deceased died 18 days later on 12. 88 due to septicemia and other complications.....Under these circumstances, we set aside the conviction of the appellant under Sec.302, I.P.C. and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Sec.304, Part II, I.P.C. and sentence him to undergo six years R.I. Accordingly the appeal is partly allowed.” 12.Per contra, learned Additional Public Prosecutor brought to our notice the decision reported in the case of State of Haryana v. Pala, 1996 Crl.L.J. 1872, in which it was held that even in spite of the fact that there is septicaemia there cannot be ground for bringing the offence under Sec.304, Part II of I.P.C. This judgment will not be applicable to the present case for the following observation in the citation which is as follows: “Though the learned counsel had not read the later part of the opinion, the medical evidence on record clearly establish that septicaemia is not the primary cause and the death was due to injuries caused to the deceased and they are sufficient to cause death in the ordinary course of nature. Septicaemia would, therefore, not be taken into account.... Septicaemia would, therefore, not be taken into account.... in this case, the supervening even of septicaemia is not of any consequences as pointed by the doctor as the death was only on account of head injuries and other injuries caused to the deceased.” But, in the instant case, the evidence of Doctor P.W.12 who conducted the post mortem is to the effect that death was due to septicaemia. The relevant portion of the evidence is as follows: So, when there is direct evidence with reference to the cause of death, from P.W.12, it cannot be said that the burn injuries had directly resulted in the death, whereas the supervening circumstances in this case is only septicaemia. So, in view of the above discussion, we are of the view that the offence would come under Sec.304, Part II, I.P.C. in view of the decision referred to above in 1994 Crl.L.J. 237. 13. Therefore, we set aside the conviction under Sec.302, I.P.C. and instead we convict the appellant/ accused for the offence under Sec.304, Part II, I.P.C. and sentenced him to undergo 5 years R.I. With this modification this appeal is allowed partly. It is brought to our notice that the appellant is on bail. So the appellant is directed to surrender before the judicial authority to undergo the remaining period of sentence. Bail bond if executed, is cancelled.