JUDGMENT : Oral Judgment: (B.H. Marlapalle, J.) 1. Both these Appeals arise from the order of conviction and sentence passed in Sessions Case No. 92/1993 by the learned Additional Sessions Judge, Greater Mumbai and by the said order accused Nos.1 to 3 came to be convicted and sentenced for an offence punishable under Section 302 r.w. 34 of the Indian Penal Code. Criminal Appeal No.1080/2002 has been filed by the accused No.1 and Criminal Appeal No.1106/2002 has been filed by accused Nos.2 and 3. Though they were on bail during the trial, on admission of these Appeals their bail applications came to be rejected and, therefore, as of now they are undergoing the life sentence. 2. Criminal Application No.633/2008 was filed in Criminal Appeal No.1106/2002 by accused No.3 contending that on the date of the incident he was a juvenile and therefore, was entitled for protection under the Juvenile Justice (Care and Protection of Children) Act, 2000. The said application came to be rejected. However, on 19th December, 2008 this Court passed a fresh order on the application received from accused No.3 along with certain documents viz. Photostat copy of the School Certificate and the passing certificate of the Junior High School examination. This Court directed the State authorities to conduct an enquiry as to the genuineness of the said documents and any other related documents and determining the age of the accused No.3 as per rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000. The said enquiry is still pending and we have been assured by the learned A.P.P that it will be concluded as early as possible. 3. The prosecution case could be set out in short as under: The complainant Smt. Kalimumbi Abdul (P.W.5) along with her husband Shri Abdul Nabi was residing at Unisbhai Chawl, Patkar Compound, Sadabahar Mohalla, Dongri, Andheri along with their children. In the night of 9th August, 1992 and after the family had dinner, Abdul Nabi was invited by the accused No.1 and 2 for the drinks party in the room of the brother of accused No.2. Some time around the midnight P.W.5 heard the shouts of her husband and some of the accused were saying “Bhaago Bhaago” and therefore, she came out of her house and saw that her husband was lying in a pool of blood with number of injuries. Some time around the midnight P.W.5 heard the shouts of her husband and some of the accused were saying “Bhaago Bhaago” and therefore, she came out of her house and saw that her husband was lying in a pool of blood with number of injuries. She tried to ask him as to who had assaulted him, but there was no response and she came out of the house and called for help. She went from door to door to ask for help, but none came forward and she returned to her husband and noticed that he was motionless. She went to the D.N.Nagar Police Station, Andheri and recorded the complaint at about 1.25 hours (Exhibit-18). The police arrived at the scene along with the complainant at around 2 a.m and noticed that Abdul Nabi was dead. Spot-cum-inquest panchanama (Exhibit-15) was drawn with P.W.4 Shamim Khan as one of the panch witnesses. Accused No.1 was seen by P.W.6 Jurav Mantero, P.S.I who was on night patrolling duty around 12 midnight and accused No.1 had sustained burn injuries. He was taken to Cooper Hospital and remained hospitalised for 2 days. He was arrested on 12th August, 1992. Accused Nos.2 and 3 came to be arrested on 14th August, 1992. On 20th August, 1992 all the 3 accused were sent to Cooper Hospital and P.W.8 Dr. Ramesh Dyawarkonda had examined accused Nos.2 and 3. The clothes of the accused were seized/recovered after their arrest and P.W.2 Vijay Pande and P.W.3 Anil Shitap were the panch witnesses for these recoveries. On 10th August, 1992 the dead body of Abudul Nabi was sent for Post Mortem and Dr. Vasant Vanmore (P.W.9) conducted autopsy and submitted Post Mortem Report at Exhibit-27. On 18th August, 1992 all the 3 accused were taken to the police hospital at Nagpada for medical examination, which was conducted by Dr. Shivaji Daund (P.W.11) and medical certificates about the injuries were also obtained. Dashrath Rathod, Police Constable (P.W. 12) had seized the clothes of the deceased. All the clothes as well as the articles recovered from the spot were sent for chemical analysis and/or about 13th September, 1992. C.A. Reports were received. The clothes of the accused and deceased were detected to have sulphuric acid marks. The weapons recovered from the spot were seen smeared with blood (axe and razor). On completion of investigation charge-sheet was filed on 6th November, 1992. C.A. Reports were received. The clothes of the accused and deceased were detected to have sulphuric acid marks. The weapons recovered from the spot were seen smeared with blood (axe and razor). On completion of investigation charge-sheet was filed on 6th November, 1992. As the case was triable by the Sessions Court, it was committed on 6th January, 1993 and charge was framed on 7th March, 2002 (Exhibit-2). 4. P.W.13 Khrishna Gawade was the Investigating Officer and in all 13 witnesses came to be examined by the prosecution. P.W.1 Sheikh Yunus Abbas, P.W. 2 Vijay Pande and P.W.7 Fatima Lalsab Sayyed were declared hostile. Statements under Section 313 of the Code of Criminal Procedure of all the 3 accused were recorded, after recording the oral evidence. All the accused denied their involvement and contended that they were falsely implicated in the offence. However, they admitted that they were taken for medical examination to the Nagpada Police Hospital on 18th August, 1992 and Cooper Hospital on 20th August, 1992 (accused Nos.2 and 3 only). 5. The learned Sessions Judge held that the prosecution proved the incident that had taken place at or around 1.25 a.m. (mid night) of 9th August, 1992 leading to 10th August, 1992, at temporary tin shed situated at Patkar Compound Sadabahar Mohalla, Gaodevi Dongari, Andheri (W), Mumbai causing death of Abdul Nabi Mohammed Issaque by use of weapons like axe and razor and he had sustained acid burn injuries on his face, neck and chest etc. He further held that accused Nos.1, 2 and 3 had committed the murder of the said Abdul Nabi Mohammed Issaque in the said incident, therefore, he sentenced them to life imprisonment and fine of Rs.500/- in default to undergo 15 days Rigorous Imprisonment in addition. 6. Ms. Gonsalvez, the learned Counsel for the accused No.1 submitted that even as per the trial Court the case of the prosecution was based on circumstantial evidence, as the trial Court disbelieved P.W.5 as the eye witness and the chain of circumstances could not be completed and in fact it remained broken on account of various lapses, therefore, the conviction of accused No.1 is unsustainable. She also pointed out that even in the last seen theory as alleged by P.W.5, the accused No.3 did not figure except her statement that when she reached the door, she had seen all the 3 accused and one more person running away from the said room/hut. She also pointed out by referring to the oral testimony of P.W.6 that in the absence of the medical record from Cooper hospital regarding the hospitalisation and medical treatment allegedly received by the accused No.1 on 10th and 11th August 1992, the testimony of P.W.6 could not be relied upon. As per her the prosecution could not explain as to how accused No.1 came to be arrested on 12th August, 1992 and there was no evidence to reasonably believe that he had sustained burn injuries in the alleged incident, more so when P.W. 2 Vijay Pande who was the panch witness for the seizure of the under-garments of the accused No.1, had turned hostile. The medical certificate issued by P.W.11 about the alleged burn injuries could not be accepted to establish the link of accused No.1 with the incident causing the murder of the Abdul Nabi. She has relied upon a number of decisions before us in support of her contentions that the prosecution miserably failed to establish its case beyond reasonable doubt and on the basis of the circumstantial evidence regarding the complicity of accused No.1 in the incident. It was also pointed out that the accused No.1 was alleged to have assaulted the deceased with the wooden plank (Article No.1) and as per the opinion of P.W.9 Dr. Vasant Vanmore, the injuries sustained by the deceased on his head and resulted in his death could not have been caused by the said wooden plank and thus the case of the prosecution against the accused No.1 could not be proved even on the basis of the medical evidence. 7. Mr. Memon, the learned Counsel appearing for accused Nos.2 and 3 while adopting the arguments advanced by Ms. Gonsalves submitted that the police had implicated the accused without any basis and in fact the prosecution could not adduce reliable evidence so as to establish the chain of circumstantial evidence unerringly proving to implicate all the accused in the murder of Abdul Nabi in the night of 9th August, 1992. Gonsalves submitted that the police had implicated the accused without any basis and in fact the prosecution could not adduce reliable evidence so as to establish the chain of circumstantial evidence unerringly proving to implicate all the accused in the murder of Abdul Nabi in the night of 9th August, 1992. He submitted that the last seen theory has not been proved because of the self contradictions in the evidence of the concerned witnesses and the injuries allegedly found on the person of the accused could not be, with certainty, linked with the murder of Abdul Nabi and simply because as per the Post Mortem Report the deceased had also received burn injuries. The learned Counsel also submitted that the investigation was lethargic, the alleged recovery of clothes could not be proved, the panch witnesses turned hostile and/or the recovery was from places which were amenable to one and all and at the same time even the C.A.Reports did not show the presence of finger prints of accused on any of the weapon (articles seized and recovered). The medical Certificates by themselves could not be relied upon to support the prosecution unless there is any other corroborative evidence and no such corroborative evidence was adduced by the prosecution. He urged that the benefit of doubt must go in favour of the accused and they ought to be acquitted. 8. P.W.5 Kalimumbi Abdul, the wife of the deceased stated in her complaint (Exhibit-15) that on 9th August, 1992 at about 22 hours her husband had taken dinner and was standing in front of her room. Accused No.1 who was staying close to her house, requested Abdul Nabi to come to the room of the brother of accused No.2 and they went to the said room where some other persons who were the brothers and relatives of accused No.2 were present. They requested her husband to have drinks, but he declined. They insisted on him to take the drinks and they all started drinking liquor. She was able to listen/hear their talk as there was only a partition between her room and the room where the drinks party was going on and as there were holes in the tin partition, she was able to see what was going on in the next room. She was able to listen/hear their talk as there was only a partition between her room and the room where the drinks party was going on and as there were holes in the tin partition, she was able to see what was going on in the next room. While they were consuming liquor they started quarreling and shouting and she heard the voice of accused No.3 saying “Maaro re Maaro” and “Bhaago re Bhaago”, she came running out of her room to see what was happening in the neighbouring room, which was attached to her room and when she reached the door she saw all the accused running away and her husband was lying in a pool of blood near the door, but inside the neighbouring room and he was gasping. She asked him, but he could not speak. She shouted for help, but nobody responded. She then went from door to door requesting for help, but no one came forward. She went back to see her husband’s condition and noticed that he was dead. 9. In her substantial evidence before the trial Court P.W.5 came out with a different version. She stated the incident had taken place at around 12 midnight while she was present in her house. Her husband had gone along with accused No.2 Shamshad Ali whose hut/room was adjacent to her hut. Both of them went to the said hut. Accused No.1 asked her husband for a party, but her husband replied that he had already taken dinner and, therefore, would not like to have drinks. However her husband went to the hut of accused NO.2 and took some drinks with accused Nos.1 to 3. She also stated that all the accused had taken her husband with them and therefore, she could state that her husband had taken drinks with all the accused. She could see through the zinc sheets what was going on in the next room belonging to the brother of accused No.2. Accused Nos.1 to 3 then assaulted her husband and as per her accused No.2 assaulted him by an axe, accused No.1 Mohammed Hussain assaulted by wooden plank and accused No.3 Tamsen assaulted by knife. All of them had thrown acid on her deceased husband and he had fallen down. The clothes of her husband were burnt because of acid and had sustained injuries on his forhead and cheek. All of them had thrown acid on her deceased husband and he had fallen down. The clothes of her husband were burnt because of acid and had sustained injuries on his forhead and cheek. On the issue of motive she had stated in the complaint that accused No.1 was in love with her sister-in-law by name zarina (wife of brother of the deceased) and this was not liked by the deceased and therefore, on that count the relations were strained. 10. The actual assault attributed to each of the accused and as stated in her depositions, did not find place in her complaint lodged to the police. Similarly in the complaint she had stated that it was accused No.1 who invited and took Abdul Nabi to the room of the brother of accused No.2, but in her evidence before the Court she stated that her husband had gone along with accused No.2 and the accused No.1 had asked about the party. In her cross examination she admitted that Ibrahim and Basheer were having enmity with her husband and they were after his life. Basheer is the father of Zarina whereas Ibrahim is her brother. She also stated that accused Nos.1 to 3 were the only persons and there was no one else who had come to call her husband. P.W.13 Khrishna Gawade who recorded the complaint of P.W.5 stated in his evidence that the complaint was recorded as was told by P.W.5. We have noted that in the complaint (Exhibit-15), the complainant had stated that all the accused and the deceased were having liquor party in the adjoining room, after consuming liquor they started quarreling and shouting and she had heard accused No.3 saying “Maaro re Maaro” and “Bhaagore Bhaago”. She had also seen all the accused running away from the room where the party was going on. She did not attribute any assault or she did not claim that she had seen any of the accused assaulting her husband when her complaint was recorded at the first instance. However in her substantial evidence before the Court she assigned individual role of assault. 10.A. Circumstances accepted by the trial Court while passing the order of conviction and sentence are as under:-a) The homicidal death of Abdul Nabi in the midnight of 9th August, 1992. b) Accused last seen by the P.W.5. However in her substantial evidence before the Court she assigned individual role of assault. 10.A. Circumstances accepted by the trial Court while passing the order of conviction and sentence are as under:-a) The homicidal death of Abdul Nabi in the midnight of 9th August, 1992. b) Accused last seen by the P.W.5. c) P.W.5 had seen her husband in injured condition as well as dead soon after the incident. d) Spot/inquest panchanama about the seizure of acid bottle and weapons. e) C.A report of bloodstains on the weapons, presence of sulphuric acid on the clothes of the accused as well as the deceased and presence of sulphuric acid in the bottle. f) Recovery of clothes of the accused and acid found on them. g) Presence of the accused at the spot. h) Evidence of P.W.6 stating that the accused No. 1 was seen past midnight with burn injuries on his person and was, therefore, admitted in Cooper hospital. i) Burn injuries on the person of all the accused as well as the deceased, as per the evidence of P.W.8 and P.W.11. j) Medical Certificates issued by Nagpada Police Hospita at Exhibit-43 (colly) as well as the medical certificates issued by the Cooper Hospital in respect of accused Nos.2 and 3 at Exhibit-23 & 25. 11. The P.M.Report at Exhbit-27 was admitted by the defence and it could not be disputed that Abdul Nabi, the husband of the complainant died a homicidal death. As per P.W.9 Dr. Vasant Vanmore the injuries sustained by the deceased and noted by him were mentioned in Clause 17 at serial Nos.1 to 8 in the P.M. Report and those injuries were possible by a sharp edged weapon like chopper, knife, sword and axe etc. He further stated that injury No.9 was possible by throwing acid on the face of the person. As per the said report the death was unnatural due to shock and hemorrhage. He further stated that injury No. 9 recorded in coloumn No.17 of P.M. Report could be possible by articles 4 and 6 axe and knife. He also admitted in his cross examination that injury Nos. 1 to 8 could not have been caused by the wooden plank Article-29. Thus the death of Abdul Nabi was on account of the injuries caused by sharp edged weapon and he had died on the spot. 12. He also admitted in his cross examination that injury Nos. 1 to 8 could not have been caused by the wooden plank Article-29. Thus the death of Abdul Nabi was on account of the injuries caused by sharp edged weapon and he had died on the spot. 12. The evidence of P.W. 5, complainant has been considered by the trial Court and has been discarded as an eye witness. We do not find any error in the said finding. Under these circumstances the admissible evidence of P.W.5 went to show that on 9th August, 1992 after her husband had taken dinner he was invited for drinks party in the neighbourhood and he proceeded towards the room belonging to the brother of accused No.2. After some time she had heard some shouts “Maaro re Maaro” and “Bhaago re Bhaago”, therefore she had come out of her room and went to the room where she saw her husband lying in injured condition. She could not get any help despite her call for the same and subsequently, she noticed that her husband is dead. Thus there is no eye witness to the incident as has been rightly held by the trial Court. To examine the circumstances as considered by the trial Court, the evidence of the prosecution starts with P.W.6 Jurav Mantero. He has stated before the Court that he was P.S.I on patrolling duty between 1.00 p.m on 9th August, 1992 to 8.00 a.m on 10th August, 1992 and while he was at Gilbert Hill area along with Mobile Van at about 12 midnight, accused No.1 arrived there with burn injuries and on enquiry he stated that he had sustained those injuries in a quarrel that had taken place between him and the deceased. He further stated that the accused No.1 had told him that he as well as Abdul Nabi had sustained injuries in the said quarrel and that he had taken injured Abdul Nabi to Cooper hospital. He had reported the said incident to the Control Room. Though this witness had taken the name of Abdul Nabi as the person taken to Cooper hospital, he pointed out the accused No.1 present in the Court and he stated that he was the same person whom he had taken to the Cooper hospital. He had reported the said incident to the Control Room. Though this witness had taken the name of Abdul Nabi as the person taken to Cooper hospital, he pointed out the accused No.1 present in the Court and he stated that he was the same person whom he had taken to the Cooper hospital. It would be therefore, appropriate to clarify that the injured person taken was not Abdul Nabi who was found dead on the spot of offence as per prosecution case. In his cross examination this witness has admitted that there was no panchanama drawn about the accused No.1 coming to the mobile van in an injured condition. 13. P.W.13 Khrishna Gawade in his deposition admitted that there was no record with the Control Room about P.W.6 taking the accused No.1 to the Cooper hospital and also the treatment given to the said accused, while he was admitted in the said hospital for 2 days. No efforts were taken by the prosecution to bring on record and prove any such evidence before the trial Court. Hence, the prosecution case that P.W.6 was the witness to link the accused No.1 with the incident or to show his complicity / participation in the same or his presence at the spot of incident could not be established beyond reasonable doubt. 14. So far as the recovery of the weapons is concerned, the C.A. Report at Exhibit-33 indicates that blood was found only on the axe and there was no blood detected on the knife. The C.A. Report does not state that human blood was detected on the axe. The C.A. Report could not determine the blood group of the deceased though it found that the blood group of accused No.1 was “A” and that of accused Nos. 2 and 3 was “B”. Ms. Gonsalvez, the learned Counsel for the accused No.1 rightly pointed out that to connect these weapons with any of the accused, though it was the prosecution case that the accused No.1 had assaulted the deceased with wooden plank, their finger prints ought to have been taken and this was not done. In the absence of the finger prints report, there is no acceptable evidence, which could go to show that these weapons or any other weapons were used either by accused No.2 or 3. In the absence of the finger prints report, there is no acceptable evidence, which could go to show that these weapons or any other weapons were used either by accused No.2 or 3. As per the evidence of P.W.9 one injury out of injury Nos.1 to 8 was so hard hit that the brain of the deceased was exposed. It was also the prosecution case that the axe was tucked with some human hair, but the C.A. Report has not indicated anything, but only hair. Thus assault by an axe could not be linked to either of the accused. The learned Judge of the trial Court has not considered this aspect. In the case of Shantabai & Ors. Vs. State of Maharashtra, A.I.R. 2008 SC, 1 to 9. Their Lordships of the Supreme Court in paragraph 20 observed, as below:- “20. According to the opinion of the Doctor, the cause of death was because of shock due to cardio respiratory failure caused by injury to brain and brain hemorrhage. The Chemical Analyser’s report would reveal that ethyl alcohol was found in the viscera contents of the deceased. We may point out that the Investigating Officer has not cared to collect the finger prints appeared on the stones and axe, the alleged weapons of offence, at the time of seizure of the articles nor he had taken the finger prints of the appellants for comparison with the finger prints, if any, detected on the alleged weapons of offence.....” 15. The Supreme Court concluded that the prosecution could not establish beyond reasonable doubt that the accused had used the said weapons for the offence committed. 16. The next circumstance is regarding the recovery of clothes and presence of sulphuric acid on them. The recovery of under-garments of accused No.1 was sought to be proved through the evidence of P.W.2 Vijay Pande and he turned hostile. At the same time even as per the prosecution the alleged recovered under-garments were handed over to the police by the mother of the accused No.1 and it was not recovered from his person while he was in custody. Similarly the alleged recovery of clothes of accused Nos.2 and 3 was based on the evidence of P.W.3 Anil Shitap. At the same time even as per the prosecution the alleged recovered under-garments were handed over to the police by the mother of the accused No.1 and it was not recovered from his person while he was in custody. Similarly the alleged recovery of clothes of accused Nos.2 and 3 was based on the evidence of P.W.3 Anil Shitap. This witness has supported the prosecution case and stated before the trial Court that on 15th August, 1992 he had acted as a witness and in his presence the accused had made a voluntary statement to show the place where they had dumped their clothes and they led the police to the Gilbert Hill area, Patkar compound near the house which is under repair/renovation and belonging to one Saidunnisa Shaikh, there was one iron tub and the clothes were recovered from the said place. Even if this is accepted, it has come in the evidence of P.W.13 Krishna Gawade that these clothes were sent to the C.A as late as on 13th September, 1992. In his evidence before the trial Court he has not given any justification or any circumstances which could support this delay. Under such circumstances it may be unsafe to rely upon the C.A report regarding the presence of sulphuric acid on the clothes of the accused, so as to connect with the offence on the basis that the empty bottle on the spot with chemical was found present and also on the clothes of the deceased spots of sulphuric acid were found. 17. In the instant case, even as per the complaint (Exhibit-18), in the room of the brother of accused No.2 where husband had gone for the party, there were some more persons present, other than all the accused. Hence, the prosecution case that the accused had assaulted the deceased by the axe and knife, could not be accepted in the absence of some other reliable evidence. As per the trial Court, the incident had taken place at 1.25 a.m on 10th August, 1992, but as the evidence of P.W.6, the accused No.1 had met him in injured condition at 12 midnight on 9th August, 1992. The investigation, in our considered view, suffered from serious lapses, and the investigation was conducted in equally casual, tardy and negligent manner. The investigation, in our considered view, suffered from serious lapses, and the investigation was conducted in equally casual, tardy and negligent manner. Both these aspects have resulted in the failure of the prosecution to bring on record clinching evidence to prove, beyond reasonable doubt, that the accused or any one of them had in fact caused the murder of the deceased, in or after the midnight on 9th August, 1992, at the place where he was seen injured and dead or somewhere else. Thus the benefit of doubt must favour the accused so far as the charge of murder is concerned. The trial Court was in gross error to hold that the accused were the authors of the murder of Abdul Nabi. The reasoning set out by the trial Court is erroneous and is not supported by the evidence on record brought by the prosecution. The chain of circumstances was broken, on more than one counts. Consequently the accused deserve to be acquitted from the charge punishable under Section 302 read with Section 34 of the Indian Penal Code. 18. Now coming to the medical certificates of all the accused issued by the Nagpada Police Hospital and the certificates issued for accused Nos.2 and 3 by Cooper Hospital, it is required to be noted that in their statements recorded under Section 313 of the Code of Criminal Procedure all of them admitted that they were examined at these hospitals on 18th August, 1992 and 20th August, 1992 respectively. The Medical Certificates indicated that the accused had sustained injuries which can be caused by acid burns. P.W.8 Dr. Ramesh Dyawarkonda and P.W.11 Dr. Shivaji Daund stated that such injuries could be caused, if the person tries to throw acid on some one else. The injuries were infected and Scab was formed. The Medical certificates at Exhibits-32,34 and 36 were brought on record and as per the same following injuries were noticed on the person of the concerned accused:- A) Accused No.1 1. Acid burns on right upper arm and shoulder upto wrist anterior and posterior aspect, scab formed with infection in right cubical fossa. 2. Acid burns on chest at multiple sites. Vertical and multiple spots on complete chest and upper left part of abdomen. 3. Acid burns in right mid Axillary line 15 m. below Axilla scape form. 4. Acid burns on right upper arm and shoulder upto wrist anterior and posterior aspect, scab formed with infection in right cubical fossa. 2. Acid burns on chest at multiple sites. Vertical and multiple spots on complete chest and upper left part of abdomen. 3. Acid burns in right mid Axillary line 15 m. below Axilla scape form. 4. Multiple acid burns on right leg from above knee joint to ankle joint Lateral aspect. 5. Acid burns on postero lateral aspect of right thigh two in numbers. 6. Acid burns multiple numbers on left leg posterior aspect complete below knee joint. Scab formed object acid. Age of injuries consistent with history of incident that the incidence took place on 9.8.1992. B) Accused No.2. 1. Acid burns on left dorsum of hand 6cm.x5cm scab formed and fallen at the edges of wound multiple small spots of acid burns around the wound. 2. Acid burns on right wrist lateral aspect 2cmx1cm. incised verticle. 3. One spot of acid burn on right wrist center-medical aspect 0.5cm round shape scab formed. 4. Multiple spots and acid burns on left side chest in the mid axilly portion. 5. Multiple spots of acid burns on or left upper arm lateral aspect. 6. Grazed abrasion on right side chest verticle, 4cmx3cm. Below and medical to right breast. 7. Grazed abrasion on left side chest 3cm. Below left breast and the size 4cmx3cm oblique. 8. Grazed abrasion on left side scapula region two in no. One above the other 3cmx1cm each. 9. Multiple acid burns on post aspect of left thigh. 10. Multiple acid burns on left leg on lateral and posterior aspect from knee joint to Ankle joint. 11. Acid burns on dorsum and left foot complete. Object-Acid. Age of the injuries were consistent with the history of incident. C) Accused No.3 1. Acid burns on right four arm lower 1/3 portion, dorsal aspect 7 cmx5cm scab formed, object-acid. 2. The age of injury was consistent with the history of incidence. All these injuries were certified to be of nine days old which implied the accused had suffered these injuries on 9th August 1992. 19. The Prosecution, therefore, established that the accused had sustained injuries on their person and the injuries were caused by sulphuric acid. 2. The age of injury was consistent with the history of incidence. All these injuries were certified to be of nine days old which implied the accused had suffered these injuries on 9th August 1992. 19. The Prosecution, therefore, established that the accused had sustained injuries on their person and the injuries were caused by sulphuric acid. The cause of injuries was within the personal knowledge of the accused and they did not explain as to how and where they sustained the injuries, though they admitted before the Doctor, while recording medical history that they had suffered these injuries. As noted earlier at the spot of incident an empty bottle of sulphuric acid was recovered and the deceased had also sustained acid injuries on his face and chest. On the person of accused No.1, there are 6 acid burn injuries noticed with multiple numbers on different parts of the body. On the person of accused No.2 11 acid burn injuries were noticed. In their statement recorded under Section 313 of the Code of Criminal Procedure all the accused stated that they did not receive any such injuries. Mrs. Deshmukh, the learned A.P.P referred to the decision in the case of Geeta Vs. State of Karnataka (2000) 10 S.C.C. 72 and submitted that failure of the appellants to explain at what place and in which incident, they had sustained the injuries and the incident which assumes importance and would supply the missing link in the chain of circumstances. She further submitted that the injuries sustained by the appellants connected with the evidence that the empty bottle recovered from the spot of incident which had sulphuric acid and the injuries sustained by the deceased, would go to show that there was a scuffle between the accused and the deceased while they were in the drinks party. She also pointed out that the evidence of P.W.5 complainant could be relied upon, at the least, to the extent that she had seen the deceased last in the company of accused Nos.1 and 2 irrespective of the fact as to whether accused No.1 or accused No.2 had invited her husband or vice-a-versa. These arguments deserves to be accepted and therefore, the prosecution has established and proved that the accused have committed an offence punishable under Section 326 of the Indian Penal Code, though such a charge was not framed by the trial Court. 20. These arguments deserves to be accepted and therefore, the prosecution has established and proved that the accused have committed an offence punishable under Section 326 of the Indian Penal Code, though such a charge was not framed by the trial Court. 20. On the point of sentence the learned Counsel for the appellants submitted that the peculiar circumstances of this case deserve to be taken into consideration while deciding the period of sentence by referring to the depositions of P.W.5. It was pointed out that there was a drinks party and there is nothing to show that it was a preplanned attempt. There were reasonable circumstances to believe that after consuming some liquor there was some scuffle or the acid bottle available at the spot was opened and sulphuric acid was thrown on the person of the deceased, due to which he sustained acid burn injuries on his face and chest. The criminal record of the deceased was also referred to, in this regard. It was also pointed out that the place of occurrence and its ownership was not proved by the prosecution. These submissions are well merited. 21. We, therefore, allow these Appeals partly and we quash and set aside the impugned order of conviction and sentence. Instead we hold that the accused are guilty of an offence punishable under Section 326 read with Section 34 of the Indian Penal Code for voluntarily causing grievous hurt to the deceased by throwing acid on his person on 9th August, 1992 by inviting him for the drinks party. Each one of them is hereby sentenced to suffer R.I for 7 years and a fine of Rs.500/- i/d thereof to undergo 15 days more R.I. 22. Undoubtedly they shall be entitled to set off under Section 428 of the Code of Criminal Procedure.