JUDGMENT 1. - Jagdish and Smt. Sampati, (appellants herein) who are husband and wife, were put to trial before learned Additional Sessions Judge (Fast Track) Gangapur City, for having committed murder of Bharti by pouring acid on him. Learned Judge vide judgment dated March 15, 2002 convicted and 5 sentenced them under section 302 IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. 2. Herbeji (Pw.1) wife of Bharti put her thumb impression on a written report (Ex.P-1) and submitted it at police station Gangapur City on July 3, 2001 at 12.45 AM. It was inter alia stated in the report that Jagdish and his o wife Sampati poured acid on her husband with the intention to kill him. On that report a case under sections 324 and 307 IPC was registered and investigation commenced. In the course of investigation Bharti succumbed to his injuries and section 302 IPC was added. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were 5 recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Gangapur City. Charge under section 302 IPC was framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Injuries sustained by Bharti were examined while he was alive vide Injury Report (Ex.P-11). Bharti received following injuries : Superficial burn on Rt. side face, forehead, nose & cheek Rt. side, tongue white coated & buccal mucosa white coated, whole chest & 1 upper part of her (his) abdomen, burn area white coated at places, forearm popenomedly Rt. upper limb whole Ant. laterally Lt. leg Anteriorly Rt. leg upper part of back upper ⅔ Rt. cornea. However after his death the dead body was brought to autopsy and as per Post Mortem Report (Ex.P-21) the cause of death was septicemic shock 1 due to chemical burn. 4. At this juncture injuries sustained by the appellants in the same incident may also be noticed. leg Anteriorly Rt. leg upper part of back upper ⅔ Rt. cornea. However after his death the dead body was brought to autopsy and as per Post Mortem Report (Ex.P-21) the cause of death was septicemic shock 1 due to chemical burn. 4. At this juncture injuries sustained by the appellants in the same incident may also be noticed. Appellant Sampati vide Injury Report (Ex.P-12) received following injuries : Multiple septic ulcers of various size & dimensions pathnolateral surface Rt. forearm, Rt. breast, Rt. umbilical region of abdomen, Lt. forearm Pornolateral surface & dorsal and anterior part of Lt. forearm, Lower and medial surface Rt. finger & Rt. ankle ,joint. anteriorly Lt. ankle joint anteriorly 1/2 x 1/2on It. side face. 5. Appellant Jagdish vide injury report (Ex.P-13) received following injuries : . "Septic ulcer 3" x 2" on medial right leg." 6. The prosecution case rests on the testimony of Harbeji (Pw.1) and Rajesh (Pw.3) who were examined as eye witnesses of the occurrence. Harbheji is the wife of the deceased, whereas Rajesh is her minor son. These witnesses categorically stated that appellants poured acid on the person of Bharti. Curiously despite their presence near Bharti, they did not receive burn injuries. On examining their testimony from the point of view of trustworthiness, we find them highly unreliable witnesses. 7. Harbheji is the wife of the deceased, whereas Rajesh is her minor son. These witnesses categorically stated that appellants poured acid on the person of Bharti. Curiously despite their presence near Bharti, they did not receive burn injuries. On examining their testimony from the point of view of trustworthiness, we find them highly unreliable witnesses. 7. In order to find out the truth it is necessary to advert to the statements of Smt. Sampati recorded under section 313 CrPC, which reads as under : " eSa esjs firk ds vdsyh yM+dh gwaA esjs firk ds esjs vykok vkSj dksbZ ugha gSA esjs firk ds ikl xzke xkoM+h esa 30 ch?kk tehu gSA esjs ekrk&firk nksuksa gh 80 lky ls mij ds gSaA eSa gh [ksrhckM+h dh lkjlaHkky djrh gwaA et:c Hkjrh o fdjksM+h S/o feB;k eh.kk fu0 xkaoM+h dh esjs firk dh tehu ij fu;r fcxM+ xbZ rFkk og tehu ij dCtk djuk pkgrs Fks rFkk esjk ifr dke dk ugha gS blfy, Hkjrh o fdjksM+h eh.kk esjs lkFk cqjk dke djuk pkgrs Fks rFkk voS/k lEcU/k cukuk pkgrs FksA bl ckcr mUgksusa eq>s dbZ ckj Mjk;k /kedk;kA et:c Hkjrh ?kVuk ds djc 10 fnu igys tc esa pkjikbZ ij ysVh gqbZ Fkh] rc esjs ikl vk;k rFkk cqjk dke djus dh dksf'k'k dh rFkk ?kVuk ds fnu et:c Hkjrh o fdjksM+h nksuksa vk;sA eSa esjs firk ewM;k dh cSBd ds lgkjs Nijs esa HkSal dks pkjk Mky jg Fkh] esjh mUgksaus ckFk Hkjyh o cqjk dke djus dh dksf'k'k dh rFkk eSaus fojks/k fd;k rks Hkjrh us fdjksM+ ls rstkc dh cksry eaxokbZA esjs mij Mkyus dh dksf'k'k dj] ftlls eSaus mlls Nhuk&>iVh dh rks rstkc esjs mij o Hkjrh ds mij fxj x;kA eSaus viuk MkDVj eqvk;uk djk;k rFkk esjs yM+ds ls eqdnek djk;k ftldh i=koyh esa 'kkfey gSA ftldh FIR dh izekf.kr izfrfyfi i=koyh esa is'k dj j[kh gS tks Ex. D-3 gSA geus Hkjrh ij dksbZ rstkc ugha Mkyk gSA xokgku lHkh ,d gh ifjokj ds gSa rFkk gedksa xkWao ls fudkyuk pkgrs gSa blfy, gesa >wBk Qwalk;k gSA " 8. From the statements of Smt. Sampati it is evident that her husband Jagdish was incapable to commit sexual intercourse with her and this possibility cannot be ruled out that she developed physical relations with Bharti. Her husband Jagdish could not tolerate this relationship and he decided to take revenge from them. From the statements of Smt. Sampati it is evident that her husband Jagdish was incapable to commit sexual intercourse with her and this possibility cannot be ruled out that she developed physical relations with Bharti. Her husband Jagdish could not tolerate this relationship and he decided to take revenge from them. On the date of incident while Smt. Sampati and Bharti were making love, Jagdish poured acid on both of them. Few drops of acid also caused septic ulcer on his medial right leg. 9. Finding Bharti injured his wife Harbheji consulted her relatives and implicated Smt. Sampati and Jagdish both. 10. Jagdish who was sexually impotent, lost his self control finding his wife making love with Bharti and he poured acid on the person of both of ,them. Thus provisions contained in Exception I to Section 300 IPC are attracted. Charge against Smt. Sampati however could not be proved beyond reasonable doubt. 11. For these reasons, we dispose of instant matter in the following terms : (i) We allow the appeal of appellant Sampati and acquit her of the charge under section 302 IPC. Appellant Sampati, who is in jail, shall be set at liberty forthwith, if she is not required to be detained in any other case. (ii) We partly allow the appeal of appellant Jagdish and instead of section 302 we convict him under section 304 Part 11 IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than six years and three months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Jagdish, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal of S allowed. *******