R. M. BAPAT, J. ( 1 ) CRIMINAL Appeal No. 126 of 2003 is filed by the State of Andhra Pradesh represented by the Public Prosecutor aggrieved by the order of acquittal recorded against A-2. Referred Trial Case Mo. 4 of 2002 is a reference under made by the learned VI Additional district and Sessions Judge, Fast Track Court, krishna at Machilipatnam for confirmation of death sentence under Section 366 Cr. P. C. and whereas Criminal Appeal No. 1406 of 2002 is filed by A-1 aggrieved by the order of death sentence imposed upon him. Since all the three matters arise out of Sessions Case no. 262 of 2000, which has been decided by the learned VI Additional District and Sessions judge, Krishna at Machilipatnam, they are disposed of by a common judgment. ( 2 ) ORIGINALLY A-1 and A-2 were tried by the learned Sessions Judge for the offence punishable under Section 302 read with section 34 IPC. The learned Judge found a-1 guilty of the offence punishable under section 302 IPC and therefore sentenced him to death and also to pay a fine of Rs. 1,000/ -. A-2, against whom the State of Andhra pradesh has filed an appeal/ was not found guilty and therefore he was acquitted of the said charge. A-1 was further tried for an offence punishable under Section 326 IPC. He was found guilty under the said charge and therefore he was convicted and sentenced to suffer imprisonment for life and also to pay a fine of Rs. 1000/ -. He was further sentenced to undergo R. I. for three years of the offence punishable under Section 324 ipc. All the substantive sentences imposed upon the accused were made to run concurrently. ( 3 ) THE substance of the charge against the accused was that on 1-2-2000 at about 12. 30 p. m. at the shop of Mulakalapalli ankeswara Rao situated in the Main Road of nandigama, the accused caused the death of the said Mulakalapalli Ankeswara Rao by pouring acid on him. He further alleged to have caused grievous hurt to P. Ws. 1 to 4 and 13. ( 4 ) THE prosecution story can briefly be narrated as follows: P. W. 5 happened to be the father of the deceased. A-1 and A-2 are brothers and they are maternal uncles of the deceased. He further alleged to have caused grievous hurt to P. Ws. 1 to 4 and 13. ( 4 ) THE prosecution story can briefly be narrated as follows: P. W. 5 happened to be the father of the deceased. A-1 and A-2 are brothers and they are maternal uncles of the deceased. P. W. 13 was working as a Clerk in the shop of the deceased. The deceased and his father P. W. 5 used to do business in seeds at Nandigama and they were running a shop under the name and style "sri Ayyappa seeds. " They were also having one more shop at Khairunam. Both the accused are younger brothers of the mother of the deceased and they were residents of Magallu village. The father of the accused borrowed money from one allamneni Satyanarayana of Gollamudi. As he did not discharge the debt, the creditor filed a suit against him and obtained a decree and brought his property for sale through court auction. In the said auction P. W. 5 purchased the said property. Since then, his father-in-law and the accused become hostile towards him. One day his father-in-law asked p. W. 5 to give his daughter in marriage to a-2 but he did not agree for the said proposal. Since then they bore grudge against P. W. 5 and his family. P. W. 5 grew teakwood trees in his land and engaged a couple one Nuni srinivas and his wife Devakaruna to watch the field. After about one month prior to the date of incident A-1 went to the fields of p. W. 5 and beat Devakaruna in the absence of her husband. Therefore, they gave a report against A-1 at Nandigama Police Station. A case was registered against him in which he was convicted and sentenced to suffer imprisonment for two years. A-1 was telling in the village that a police report was lodged against him at the instance of P. W. 5 and the deceased. About one week prior to the date of incident, P. W. 6, an elder of Magallu, tried to mediate in between A-1 and P. W. 5 with regard to the criminal case filed against A-1. While they were talking, A-1 grew wild and abused P. W. 5 in vulgar language and caught hold of his collar and challenged him that he would kill him and his son. While they were talking, A-1 grew wild and abused P. W. 5 in vulgar language and caught hold of his collar and challenged him that he would kill him and his son. However, the elders interfered and admonished A-1. On 31-1-2000 P. W. 5 went to his shop at khammam. On the date of the incident at about 11-00 a. m. P. W. 11 saw the accused talking to each other near Sangamesh Photo studio. He further saw A-1 was holding a bucket. On 1-2-2000 at about 12-00 noon P. Ws. 1 to 4 were at the shop of the deceased. At that time while P. W. 1 was talking to the deceased, a-1 came to the shop and asked the deceased to give him 100 grams of lady finger seeds and gave him hundred rupee note. On which the deceased asked P. W. 13 to pack up the seeds. In the meanwhile A-2 also came there with a plastic bucket and placed it by the side of P. W. 4. When the deceased was about to give the balance of Rs. 80/- to A-1, a-1 picked up the bucket and poured the contents in it over the deceased, which fell over the body of the deceased. Some acid was also fell on the almyrah and also on p. Ws. 2 to 4 and 13, who were present there. Then A-1 further threw the left over acid in the bucket on P. W. 1. Thereafter A-1 and a-2 left the bucket there and went away. Unable to bear the burning of the body due to acid, P. W. 1 came out from the shop and removed his clothes and applied wet mud all over the body and took a lungi from a dhobi, who was ironing nearby on a four-wheeler. The deceased also removed his clothes and informed them that his maternal uncle did so due to previous enmity. P. Ws. 7 and 9 were the shop owners, whose shops were situated nearby the shop of P. W. 1. On hearing the cries/ they came out and saw six persons i. e. , P. Ws. 1 to 4,13 and the deceased whose clothes were burning. Then all of them went to the Government Hospital, Nandigama where one Dr. S. V. Chalapathi Rao treated them and issued wound certificates in respect of the injuries caused to them, marked as ex. On hearing the cries/ they came out and saw six persons i. e. , P. Ws. 1 to 4,13 and the deceased whose clothes were burning. Then all of them went to the Government Hospital, Nandigama where one Dr. S. V. Chalapathi Rao treated them and issued wound certificates in respect of the injuries caused to them, marked as ex. P-24 to P-29 respectively. On 1-2-2000 at about 1. 20 p. m. P. W. 18, junior Civil Judge, Nandigama, received a requisition Ex. P-11 from the Government hospital, Nandigama. On the basis of which he went to the Hospital and recorded the statementof the deceased and P. W. 1, marked as Exs. P-2 and P-13 respectively. On the basis of the hospital intimation ex. P-30 from the Government Hospital, nandigama, with regard to the admission of the injured person in the hospital, P. W. 22 the then S. I. of Police, Nandigama, immediately rushed to the hospital between 1-00 p. m. and 1-30 p. m. and recorded the statement of the deceased, which was certified by the Doctor that the patient was conscious and coherent at the time of recording the statement. The said statement is marked as Ex. P-31. Then he returned to the police Station and found A-1 was present. On the basis of the hospital intimation and the statement of the deceased, he registered the case in Cr. No. 22 of 2000 against the accused under Sections 324 and 307 IPC and issued the copies of FIR to all concerned. Then he again visited the hospital where he was informed by the Doctor that the condition of the deceased and P. W. 1 was serious. Therefore, they were shifted to the government General Hospital, Vijayawada for better treatment. He then examined p. Ws. 2 to 4 and 13, recorded their statements and seized their burnt clothes in the presence of P. W. 4 under the cover of panchanama ex. P-3. Then on the advice of the Doctor, p. Ws. 2 to 4 and 13 were also shifted to U. G. Hospital, Vijayawada. The Doctor P. W. 19, consultant Plastic Surgery, who issued wound certificates Exs. P-14 to P-17 respectively, treated them. P. W. 1 was discharged on the same day on the request that he wanted to take to Hyderabad for better treatment. 2 to 4 and 13 were also shifted to U. G. Hospital, Vijayawada. The Doctor P. W. 19, consultant Plastic Surgery, who issued wound certificates Exs. P-14 to P-17 respectively, treated them. P. W. 1 was discharged on the same day on the request that he wanted to take to Hyderabad for better treatment. P. W. 19 found 20% of acid burns on the body of P. W. 2, which was grievous in nature and he was discharged from the hospital on 17-2-2000. His wound certificate is marked as Ex. P-15. On P. W. 3 he found 25% acid burns, which were grievous in nature. He was discharged on 7-2-2000. His wound certificate is produced on record as Ex. P-16. On P. W. 4 he found 10% acid burns, which were grievous in nature. He was discharged on 3-2-2000. His wound certificate is marked as Ex. P-17. On 1-2-2000 at about 4. 45 p. m. P. W. 21 visited the scene of offence and conducted the panchanama of the same in the presence of P. W. 14. He seized M. Os. 3,10 to 13 under the panchanama Ex. P-4. Thereafter P. W. 21 drew the rough sketch of the scene of of fence, marked as Ex. P-33. Thereafter he returned back to the Police Station and interrogated a-1, who confessed the offence that he also received acid burns. He produced his acid burnt lungi and shirt, which were seized under thepanchanama Ex. P-6 in the presence of P. W. 14. Then P. W. 21 arrested him and sent him to the Government Hospital for treatment where he was examined by Dr. S. V. Chalapathi Rao, who issued wound certificate, which now produced on record as Ex. P-29. P. W. 22 then again visited the government Hospital where he was informed that the injured persons were shifted to a private hospital at Vijayawada. Therefore, he went to that hospital and recorded the statements of P. W. 1 and the deceased. Ex. P-34 is the statement of the deceased. As the condition of P. W. 1 and the deceased was serious, they were asked to be shifted to Appollo hospital, Hyderabad. But on the way near Jaggayyapet, the deceased died. On 2-2-2000 at about 10. 00 a. m. on the basisof the death intimation Ex. Ex. P-34 is the statement of the deceased. As the condition of P. W. 1 and the deceased was serious, they were asked to be shifted to Appollo hospital, Hyderabad. But on the way near Jaggayyapet, the deceased died. On 2-2-2000 at about 10. 00 a. m. on the basisof the death intimation Ex. P-35,p. W. 22 altered the section of law to 302 IPC and issued copies of FIR to all concerned. Thereafter P. W. 23, the C. I. of Police, nandigama took up further investigation, verified the investigation made by P. W. 22, then he proceeded to Jaggayyapet government Hospital and conducted inquest over the dead body of the deceased in the presence of P. W. 14, marked as Ex. P-7. After the inquest, he made arrangements to send the dead body to the hospital for post-mortem examination. On 2-2-2000 on a requisition from the inspector of Police, Nandigama, P. W. 17, the then Deputy Civil Surgeon, Government hospital, Jaggayyapet, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to acid burns and its complications. Ex. P-10 is the post-mortem certificate. During the course of investigation, p. W. 23 recorded the statements of P. Ws. 4,5, 11 to 13 and 19. Then he went to Magallu and surprised the house of the accused and found a-2 was absconding. On 10-2-2000 on receipt of reliable information, he arrested A-2 at the cross-roads junction at Nandigama at about 8-00 p. m. in the presence of P. W. 16 under the panchanama Ex. P-8. A-2 alleged to have made a statement whereby he discovered a plastic can MO. 30, which was recovered from the bushes and seized the same under the cover of panchanama Ex. P-9. On 16-2-2000 he filed a petition before the magistrate, Jaggayyapet to conduct identification parade of both the accused. On 16-2-2000 on a requisition Ex. P-18 from the Inspector of Police, Nandigama, p. W. 20, the then judicial Magistrate of First class, Jaggayyapet, conducted test identification parade on 26-2-2000 at the Sub jail premises, Nandigama where P. Ws. 3 and 4 identified two suspects as A-1 and a-2. Ex. P-19istheidentification proceedings. Again on the requisitions Exs. P-20 and P-22 dated 27-3-2000 and 7-4-2000 P. W. 20 conducted identification parade on 1-4-2000 and 15-4-2000 wherein P. W. 2 identified the accused. Ex. P-21 is the identification proceedings. 3 and 4 identified two suspects as A-1 and a-2. Ex. P-19istheidentification proceedings. Again on the requisitions Exs. P-20 and P-22 dated 27-3-2000 and 7-4-2000 P. W. 20 conducted identification parade on 1-4-2000 and 15-4-2000 wherein P. W. 2 identified the accused. Ex. P-21 is the identification proceedings. P. W. 1 identified A-2. Ex. P-23 is the said proceedings. On 18-2-2000 P. W. 23 forwarded all the material objects, which were seized, to the forensic Science Laboratory. Ex. P-39 is the f. S. L. report. After collecting all the relevant documents and on completing the investigation, he filed the charge-sheet. ( 5 ) THE defence of the accused is of total denial. It is also suggested by way of defence that they have been falsely implicated in this case. ( 6 ) IN order to connect the accused with the crime, the prosecution examined in all 23 witnesses i. e. , P. Ws. 1 to 23 inclusive of doctors and Investigating Officers. Certain documents produced and proved by them were marked as Ex. P-1 to P-39. The defence did not examine any defence witnesses but certain contradictions and omissions were brought on record any they were marked as ex. D-1 to D-l0. Outof the witnesses examined by the prosecution, P. Ws. 8 and 12 did not support the prosecution and they were declared hostile. ( 7 ) IN order to prove that the deceased died homicidal death, the prosecution relied upon the evidence of P. W. 23, who happened to be the C. I. of Police attached to the Police Station, nandigama. He had conducted inquest over the dead body of the deceased in the presence of P. W. 14, who had acted as inquest panch. Inquest panchanama is produced on record as Ex. P-7. After the inquest was over, the dead body was sent to P. W. 17, the Deputy Civil Surgeon, government Hospital, Jaggayyapet. He conducted autopsy over the dead body of the deceased on receipt of a requisition from the Inspector of Police. He noticed the following injuries on the dead body of the deceased. "acid burns were seen Black, yellowish. Appearance as follows: Head, face, cheeks, skin more on left side, both shoulders, both upper limbs, chest, abdomen, pelvis including sexual parts (sciotum, penis) back of the thorax, neck, abdomen, pelvis, both thighs, right leg and including left leg. Skin is completely destroyed. "acid burns were seen Black, yellowish. Appearance as follows: Head, face, cheeks, skin more on left side, both shoulders, both upper limbs, chest, abdomen, pelvis including sexual parts (sciotum, penis) back of the thorax, neck, abdomen, pelvis, both thighs, right leg and including left leg. Skin is completely destroyed. Muscles are exposed on right thigh and left arm. The burns are antemortem in nature. All visceral parts are congested. Hyoid bone intact. "he issued post-mortem certificate, which is produced on record as Ex,p-10. According to his opinion, the deceased died due to acid burns and they were sufficient in the ordinary course of nature to cause the death of the deceased. Considering the evidence led by the prosecution on the point of homicidal death, we do hold that the deceased did die homicidal death. ( 8 ) IN order to connect the accused with the crime, the prosecution examined P. Ws. 1 to 23. Out of the witnesses examined, P. Ws. 8 and 12 did not support the prosecution and therefore they were declared hostile. P. W. 1 happened to be the Sales Officer in amareswar Agri-Tech. He was present in the shop of the deceased and he himself was injured and was also an eye-witness to the incident. P. W. 2 happened to be the Field assistant in Nagarjuna Fertilisers. He was the injured person and was also an eyewitness to the incident. P. Ws. 3 and 4 were farmers. They had visited the shop of the deceased for buying seeds and they were also injured. They were also an eye-witnesses to the incident. P. W. 5 happened to be the father of the deceased. He was not an eyewitness to the incident but he has spoken about the earlier incident. P. W. 6 happened to be the village elder. He also speaks about the earlier incident. P. Ws. 7 to 9 are the shop owners, who were having shops nearby the shop of the deceased. Out of these three witnesses, P. W. 8 did not support the prosecution and he was declared hostile. P. Ws. 7 and 9 did not identify the accused but they speak about the injuries caused to the deceased. P. W. 10 happened to be the brother-in-law of P. W. 5. According to his version, the deceased made an oral dying declaration. He took the injured deceased to the hospital at Vijayawada. P. Ws. 7 and 9 did not identify the accused but they speak about the injuries caused to the deceased. P. W. 10 happened to be the brother-in-law of P. W. 5. According to his version, the deceased made an oral dying declaration. He took the injured deceased to the hospital at Vijayawada. P. W. 11 is a person, who alleged to have seen A-1 and a-2 talking to each other lightly prior to the incident. P. W, 12 is a person to whom the accused alleged to have made enquiries regarding the availability of acid, but p. W, 12 did not support the prosecution. P. W. 13 is the employee working in the shop of the deceased. He was also injured and he was an eye-witness to the incident. P. W. 14 is a panch witness. He attested the panchanamas Exs. P-3 and P-4. P. W. 15 is a photographer, who has taken the photographs of the scene of offence. M. Os. 16 to P-22 are the positive photographs whereas M. Os. 23 to 29 are the negatives of m. Os. 16 to 22. P. W. 16 is the panch witness. According to him, A-2 discovered M. O. 30; the plastic can, which was seized under the panchanama Ex. P-29. P. W. 17 is the Doctor, who had conducted autopsy over the dead body of the deceased, which was produced onrecordas Ex. P-lo. P. W. l8 is the Magistrate, who had recorded dying declaration ex. P-12. P. W. 19 is also a Doctor, who had examined P. Ws, 1 to 4 and issued wound certificates. They were produced on record as Exs. P-14 to P-17. P. W. 20 is the Magistrate, who had conducted test identification parade on different dates and filed the proceedings into the court and marked as Exs. P-19, P-21 and P-23. Under Ex. P-19 proceedings, p. Ws. 3 and 4 were made to identify the accused and they were able to identify them. Under Ex. P-21 proceedings, P. W. 2 was made to identify the accused and he did identify the accused. Under Ex. P-23 proceedings, p. W. 1 was made to identify the accused and he did identify the accused. Thus, P. Ws. 2,3 and 4 were able to identify the accused. P. W 21 is a Doctor, who has identified the signature of Dr. Under Ex. P-23 proceedings, p. W. 1 was made to identify the accused and he did identify the accused. Thus, P. Ws. 2,3 and 4 were able to identify the accused. P. W 21 is a Doctor, who has identified the signature of Dr. S. V. Chalapathi Rao on the dying declaration of the deceased, and who has examined P. Ws. 1 to 4 and 13 issued wound certificates Exs. P-24 to P-28. P. W. 22 is the S. I. of Police, Nandigama. He had recorded the dying declaration-cum-first information on the strength of which the offence was registered, which was produced on record as Ex. P-31. After recording the dying declaration and after registering the case against the accused, P. W. 22 had once again recorded the statement of the deceased under Section 161 Cr. P. C. , marked as ex. P-34. Thus, the statements recorded under exs. P-31 and P-34 are the statements of the deceased. Though the second statement ex. P-34 was recorded under Section 161 cr. P. C. , it achieves the importance as a dying declaration on the death of the deceased. P. W. 23 is the C. I. of Police, Nandigama. He had conducted the inquest over the dead body of the deceased. He had also conducted the entire investigation and had filed the charge-sheet. ( 9 ) BY looking to the entire evidence, which is brought on record, it can be seen that we have mainly two sets of evidence firstly in the form of dying declarations and secondly in the form of the version of eye-witnesses to the incident. Thus, P. Ws. 1 to 4 and 13 are eye-witnesses to the incident. We proceed to scrutinize their evidence so as to ascertain whether the prosecution was able to connect the accused with the crime. As stated earlier, P. W. 1 happened to be working as Sales Officer in Amareswari Agri Tech. He was in-charge of Krishna and khammam Districts. The deceased was the distributor for Agri-Tech. In connection with the business transaction, P. W. 1 had visited the shop of the deceased at the time of the incident. According to his version, A-1 and a-2 came to the shop of the deceased with a pretext to by lady finger seeds. A-1 alleged to have told the deceased to give him 100 grams of lady-finger seeds. In connection with the business transaction, P. W. 1 had visited the shop of the deceased at the time of the incident. According to his version, A-1 and a-2 came to the shop of the deceased with a pretext to by lady finger seeds. A-1 alleged to have told the deceased to give him 100 grams of lady-finger seeds. Accordingly the deceased alleged to have instructed his employee P. W. 13 to pack up the seeds. A-1 gave hundred-rupee note and the deceased was trying to return him Rs. 80/ -. At that time according to the version of P. Ws. 1 A-2 came there with a plastic bucket in his hand and placed by the side of P. W. 4. The deceased was allowed to give Rs. 80/- to A-1. At that time A-1 lifted the acid bucket and threw on the person of the deceased. While doing so, some acid spilled over the persons of p. Ws. 1 to 4 and 13, who were present in the shop and they had also sustained the burn injuries. While commenting upon the evidence of p. W. 1, the learned counsel Mr. C. Padmanabha reddy appearing on behalf of the accusedappellant herein submitted that, as a matter of fact, some role was attributed to A-2 and his presence was spoken to by P. W. 1 and other witnesses for the first time in the Court. The statements of P. Ws. 1 to 4 and 13 were recorded by the Investigating Officer under section 161 Cr. P. C. While giving the statements, no role was attributed to A-2 by these eye-witnesses at any point of time and therefore this is an improvement made at the time of giving evidence. The involvement of a-2 by these witnesses at the earliest point of time is totally absent and such omission has been proved by the defence in the cross- examination of these witnesses. The contradictions and omissions of these witnesses were brought on record and they were marked as Exs. D-1 to D-10. We are in agreement with the submission made by the learned counsel for A-2. We hold that A-2 had no role to play in the commission of the offence and therefore we are convinced that it is for the first time the prosecution witnesses are trying to improve their story so as to involve A-2 in the offence. We are in agreement with the submission made by the learned counsel for A-2. We hold that A-2 had no role to play in the commission of the offence and therefore we are convinced that it is for the first time the prosecution witnesses are trying to improve their story so as to involve A-2 in the offence. The evidence of P. W. 1 further shows that the deceased had sustained acid burn injuries all over the body. He had also sustained burn injuries on his body. The injuries were burning and therefore he came out of the shop, removed his clothes and applied wet mud all over the body. He took one lungi from a Dhobi, who was ironing clothes nearby the shop of the deceased. Similarly the deceased also came out of the shop. He also removed the clothes and all the injured persons including the deceased and himself went to the Government Hospital, nandigama, which was very close to the shop of the deceased and they were given some treatment. At about 1-00 p. m. the S. I, of police, Nandigama came there and recorded the statement of the deceased and obtained thumb impression on it and went away to the Police Station. Thereafter, the Magistrate came to the hospital and recorded the statement of the deceased. According to the version of P. W. 1, the Police also recorded his statement. The evidence of P. W. 1 further discloses that he had participated in the identification parade held by the Magistrate in which he was able to identify the accused at the first instance. The evidence of P. W. 2, who was also an eye-witness to the incident, goes to show that he was working as Field Assistant in nagarjuna Fertilisers. He had also visited the shop of the deceased in connection with the business. According to his version also both the accused came to the shop of the deceased. A-2 was carrying a plastic bucket with lid and he placed it by the side of two customers there and A-1 was asked to give 100 grains of lady finger seeds. The deceased told P. W. 13 to pack up the same. A-1 gave a currency note of Rs. l00/-and after deducting rs. 20/-, the price of the seeds, the deceased wanted to return Rs. 80/ -. The deceased told P. W. 13 to pack up the same. A-1 gave a currency note of Rs. l00/-and after deducting rs. 20/-, the price of the seeds, the deceased wanted to return Rs. 80/ -. At that juncture, a-1 alleged to have thrown the acid on the person of deceased causing burn injuries, which split on the persons of P. Ws. 1 to 4 and 13 and they also received the burn injuries. The rest of the story of going to the hospital and other things need not be repeated here once again. The learned counsel Mr. C. Padmanabha reddy appearing on behalf of the accusedappellant herein brought to our notice that p. W. 2 has also made improvement in his version for the first time while giving evidence and involving A-2 in the commission of the offence. It was so brought to our notice that the statement of P. W. 2 under Section 161 Cr. P. C. recorded by the investigating Officer in which he had not attributed any role to A-2. The said omission was brought on record through the mouth of all the eye-witnesses and they were marked as Exs. D-1 to D-10. Looking to the evidence of P. W. 2, we are also convinced that no role was attributed to a-2 at the first instance by P. W. 2 and it is for the first time P. W. 2 had attributed some role to A-2 in his evidence. The evidence of P. Ws. 3,4 and 13 is on the same lines. Therefore, we do not wish to read their evidence but suffice it to say mat they have corroborated the evidence of P. W. 1 making and involving A-2 in the commission of the offence and therefore we are convinced that A-2 was unnecessarily involved in the commission of the offence. The learned counsel Mr. C. Padmanabha reddy drew our attention to the evidence of the Investigating Officer P. W. 22. In the crossexamination p. W. 22 has categorically stated that"my investigation does disclose that only one person went to the shop of the deceased with a plastic bucket and committed the offence. "he has further categorically stated that p. W. 2 did not state before him that A-2 also came to the shop of the deceased with a plastic bucket and that he identified him as a-2. "he has further categorically stated that p. W. 2 did not state before him that A-2 also came to the shop of the deceased with a plastic bucket and that he identified him as a-2. Considering the evidence of eyewitnesses to the incident coupled with the evidence of Investigating Officer, we can definitely say that A-2 had no role to play in the commission of the offence. The learned Public Prosecutor appearing on behalf of the State pointed out the dying declaration of the deceased recorded by the magistrate, which was produced on record as Ex. P-12, in which the deceased alleged to have narrated the following story. "my maternal uncle Pothuraju Srinivasa rao has poured acid. Pothuraju Srinivasa rao is responsible, again the patient stated like this: Pothuraju Srinivasa Rao, pothuraju Narasimha Rao both of them poured acid on me. "therefore, it was submitted by the learned public Prosecutor that A-2 had also a role to play in the commission of the offence. We are not in agreement with the submission made by the learned Public Prosecutor. It may be a fact that A-2 might have been present there. The deceased had sustained lot of burn injuries and probably he might have thought that A-2 is also responsible for pouring acid on his person and therefore he has involved a-2. This role was not attributed by the eyewitnesses in their earlier version. Therefore, we are of the considered view that A-2 had no role to play in the commission of the offence. By looking to the evidence of eyewitnesses, i. e. , ocular evidence we are convinced that A-1 was alone responsible for causing the death of the deceased and the grievous injuries to P. Ws. 1 to 4 and 13. The second set of evidence consists of dying declarations are alleged to have been made by the deceased. The first dying declaration is alleged to have been made by p. W. 10, who happened to be the brother-in law of P. W. 5. According to his version, he went to the deceased and asked him as to how he sustained burn injuries. Thereupon he is alleged to have told him that A-1 pour acid on his person. P. W. 10 took the injured to the hospital at Vijayawada for treatment. This is a dying declaration orally given to p. W. 10 by the deceased. Thereupon he is alleged to have told him that A-1 pour acid on his person. P. W. 10 took the injured to the hospital at Vijayawada for treatment. This is a dying declaration orally given to p. W. 10 by the deceased. Apart from this dying declaration, there are in all three dying declarations. The first dying declaration was recorded by P. W. 22, who happened to be the S. I. of Police, nandigama. On getting hospital information, he went to the hospital at Nandigama and recorded the statement of the deceased, which is now produced on record as Ex. P-31 and on the strength of Ex. P-31, P. W. 22 had registered the case against the accused in which the deceased has not involved A-2 in the commission of the offence. But he has categorically stated that because of earlier enmity, A-1 had bore grudge against him and he poured acid on him. P. W. 22, after registering the case, again went to the hospital, recorded the 161 Cr. P. C. statement of the deceased on his death. It achieves the importance of a dying declaration, which is marked as Ex. P-34 in which the deceased involved A-1 in the commission of the offence but he has not involved A-2 in the Commission of the offence. The 3rd dying declaration, as stated earlier later point of time, which was recorded by the Magistrate P. W. 18 in which he had involved A-2 having committed the offence along, with A-1. As far as the involvement of a-2 in the said dying declaration recorded by the Magistrate is concerned, we can safely say that it is an improvement made by the deceased. Therefore, the evidence to that extent is hereby rejected. Considering the entire evidence as brought on record, we are convinced that a-2 had no role to play A-1 alone was responsible for causing the death of the deceased. ( 10 ) AS stated earlier, A-1 was sentenced to be hanged to death by the learned Sessions judge and therefore the learned Sessions judge had made a reference under Sec. 366 cr. P. C. for confirmation of the death sentence. ( 11 ) NOW the point arises for our consideration as to what sentence should be adequate in the present set of facts. The learned counsel Mr. P. C. for confirmation of the death sentence. ( 11 ) NOW the point arises for our consideration as to what sentence should be adequate in the present set of facts. The learned counsel Mr. C. Padmanabha reddy appearing on behalf of the accusedappellant herein submitted that it is not a fit case wherein the death sentence is called for. The learned counsel further submitted that it must be concluded that it is not a rarest of rare case with reference to the ruling of the apex Court reported in Om Prakash v. State of han/ana. In paras 7,8 and 9 their Lordships were pleased to observe as under;"7. It is true that court must respond to the cry of the society and to settle what would be deterrent punishment for abominable crime. It is equally true that large number of criminals go unpunished thereby increasing criminals in the society and law-loosing it deterrent effect. It is also truism as observed in the case of state of M. P. v. Shyamsundar Trivedi and others reported in (1955) 4 SCC 262 at page 273 that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i. e. ,death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. 8. Dealing with this aspect in the case of shankar v. State of Tamil Nadu - (1994) 4 scc 478 (para 50) this Court has observed as under: the choice as to which of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of the case and the Court has to exercise its discretion judicially and on a well recognized principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime, which renders sentence of imprisonment of life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate. The sentence of death should be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstances. What circumstances bring a particular case under the category of rarest of rare cases vary from case to case depending upon the nature of the crime, weapons used and the manner in which it is perpetrated etc. 9. In the aforesaid case, the Court referred to an earlier Full Bench decision of this court rendered in the case of Bachan singh v. State of Punjab, (1980) 2 SCC 684 , wherein the Court after referring to aggravating circumstances (para 202), the Court held that following mitigating circumstances (para 206) are undoubtedly relevant circumstances and must be given weightage in determination of sentence:- (1) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (2) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (3) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (4) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (5) That the accused acted under the duress or domination of another person. (6) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. The Court further observed ( AIR 1980 sc 898 at p. 945 ). There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. (6) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. The Court further observed ( AIR 1980 sc 898 at p. 945 ). There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society, nonetheless, it cannot be overemphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accordance with the sentencing policy writ large in Section 354 (3 ). Ludges should neveri be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of india, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function to evermore scrupulous care and humane concern, directed along with the high road of legislative policy outlined in section 354 (3) viz. , that for (persons convicted of murder, life imprisonment is the rule and death sentence) an exception. "the learned counsel further relied upon a ruling reported in Vashram Narshibhai rajapara v. State of Gujarat: at Para 9 their lordships were pleased to observe as under: 9. As for the quantum of sentence, we have given our careful consideration in the light of the submissions of the counsel on either side. As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yard sticks as a ready reckoner can be formulated. As for the quantum of sentence, we have given our careful consideration in the light of the submissions of the counsel on either side. As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yard sticks as a ready reckoner can be formulated. In Panchhi and others v. State of U. P. (1998) 7 SCC 177 ) it has been observedthat the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the "rarest of rare cases" as indicated in bachen Singh v. State of Punjab (1980) 2 scc 684 ) and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor. In Om Prakash v. State of Haryana (1999) 3scc 19)dealing with a case of murder of seven persons, some totally innocent too, over a dispute relating to a small house in a village, this court observed that the particular and peculiar facts and circumstances of each case should be properly balanced and noticing the mentally depressed condition of the accused, held the case to be not one of those rarest of rare cases where the lesser sentence of life imprisonment could not be said to be adequate, despite the fact that the accused was guilty of committing a gruesome act of a premeditated and well thought out murder. While striking as contrast with such of those cases where the extreme punishment of death is warranted, it was also observed that the one dealt with therein was neither a crime committed because of lust for wealth or women (neither for money such as extortion), dacoity or robbery nor even for lust and rape) or an anti-social act involving kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fiber of the society and kills a number of persons nor was committed for power or political activities. No doubt those cannot be said to be exhaustive of such category but merely enumerative of the criminal intent of the worst type, destructive of the basic orderliness fundamental to the very existence of a welfare oriented society. "considering the ratio laid down by their lordships of the Supreme Court, we are convinced that it is not a rarest of rare case. After considering circumstances placed before us, we disagree with the reasons given by Session Judge. Therefore we hold that the death sentence is not called for when prosecution fails to prove that he is threat to society and not amenable for reformation and imprisonment for life willbe appropriate sentence in the present set of facts, Therefore, we pass the following order: criminal Appeal No. 126 of 2003 filed by the State of Andhra Pradesh against the order of acquittal of A-2 by the learned VI additional District and Sessions Judge, Fast track Court, Krishna at Machilipatnam in sessions Case No. 262 of 2000 against A-2 is hereby dismissed. Referred Trial Case No. 4 of 2002 referred by the learned VI Additional District and sessions Judge, Fast Track Court, Krishna at machilipatnam under Section 366 Cr. P. C. in sessions Case No. 262 of 2000 is hereby rejected. Criminal Appeal No. 1406 of 2002 filed by the A-1 (appellant herein) is partly allowed converting the death sentence into one which is punishable for imprisonment of life. The accused-appellant herein was also convicted and sentenced by the learned Judge for the offences punishable under different sections for causing grievous injuries to the prosecution witnesses. The said order of conviction and sentence imposed upon the accused-appellant herein is hereby confirmed and it is made to run concurrently along with the imprisonment for life.