Judgment :- M. CHOCKALINGAM, J. 1. This appeal challenges a judgment of the Principal Sessions Division, Vellore, in S.C.No.273 of 2004 whereby the appellants three in number, stood charged, tried and found guilty as follows: TABLE 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the brothers wife of the deceased Ekambaram. Ekambaram was a bachelor. The accused were also residing in the same colony where P.W.1 and her family members were residing. They were relatives. P.W.1s husband used to go to the house of the accused. The deceased was asking A-2 to give his daughter Lavanya for marriage. But A-2 was refusing. In that there arose strained relationship. On the date of occurrence that was on 24. 2003, pursuant to the quarrel between the accused and the deceased, A-2 caught hold of the hair of P.W.1, while A-3 caught hold of the deceased Ekambaram. A-1 brought acid and poured the same on P.W.1 and also Ekambaram by saying "You die. You should not think of any other girl". P.W.1 sustained burn injuries on her face, chest, right hand shoulder and other parts of the body, while Ekambaram also sustained severe burn injuries. P.Ws.2 and 3 who were standing nearby, witnessed the entire occurrence. They took both P.W.1 and Ekambaram to Vellore Christian Medical College Hospital. (b) P.W.6, the Assistant Surgeon, attached to the Government Hospital, Vellore, was on duty on 24. 2003. At about 12.05 hours, P.W.1 was admitted. He examined her, and the injuries are noted in the accident register copy, Ex.P7. On the very day, P.W.6 examined A-1 at about 12.30 hours, and the injuries were noted in the accident register copy Ex.P8. (c) P.W.7, the Assistant Professor in the Government Hospital, Vellore, at about 4.45 P.M. On 24. 2003, examined A-2. On examination, he found acid injuries at the back and right fore arm and A-2 was treated as out-patient. Ex.P10 is the accident register copy in that regard. At about 4.50 P.M., he gave treatment to A-3, found acid burn injuries on the face and back and issued Ex.P11 the accident register copy. (d) P.W.15, the Sub Inspector of Police, attached to the respondent police station, at about 4.00 A.M. on 24. 2003, on intimation went to the Government Hospital, Vellore, and recorded the statement of P.W.1 marked as Ex.P1. (d) P.W.15, the Sub Inspector of Police, attached to the respondent police station, at about 4.00 A.M. on 24. 2003, on intimation went to the Government Hospital, Vellore, and recorded the statement of P.W.1 marked as Ex.P1. On the strength of the same, a case in Crime No.100 of 2003 under Sec.307 of IPC was registered. Ex.P18, the printed FIR, was despatched to the Court along with Ex.P1. (e) P.W.18, the Inspector of Police, on receipt of the copy of the FIR, took up the case for investigation. He proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P12, and a rough sketch, Ex.P22. Then he proceeded to the place of occurrence where he took the photographs through P.W.10, the photographer. The photographs and negatives are also marked as Ex.P15 series. P.W.18 proceeded to the Government Hospital and recorded the statement of the witnesses. On the same day at about 2.00 P.M., he arrested A-1 to A-3. They gave their confessional statements voluntarily, which were also recorded. Further, all the documents were sent to the Court. (f) On 5. 2003, despite treatment, Ekambaram died, and an intimation was sent to the respondent Police Station. The case was amended to Sec.302 IPC. The express report, Ex.P23, was despatched to the Court. Then, the inquest was conducted by the Investigating Officer in the presence of witnesses and panchayatdars, and he prepared an inquest report, Ex.P24. Thereafter, a requisition was given to the hospital authorities for the purpose of autopsy. (g) P.W.5, the Doctor, attached to the Government Hospital, Vellore, on receipt of the requisition, conducted autopsy on the dead body of Ekambaram and has given his final opinion under Ex.P5, the postmortem certificate, that the deceased would have died of septicemia due to acid burns about 9 to 11 hours prior to autopsy. (h) All the material objects were sent for analysis. Ex.P3 is the chemical report. P.W.18 examined all other witnesses and recorded their statements and thereafter, filed the final report under Sections 341, 326, 302 r/w 34 IPC as against A-1 and under Sections 341, 302, 326 r/w 109 IPC as against A-2 and A-3. 3. The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 18 witnesses and also relied on 24 exhibits and 4 material objects. 3. The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 18 witnesses and also relied on 24 exhibits and 4 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence, D.Ws.1 and 2 were examined, and also one exhibit was marked. On completion of evidence on both sides, the trial Court heard the arguments advanced and found the appellants guilty and awarded punishment as referred to above. Hence this appeal at the instance of the appellants. 4. Advancing arguments on behalf of the appellants, the learned Counsel Mr.R.Sankarasubbu would submit that the prosecution has miserably failed to prove its case; that the prosecution rested its case apart from the evidence of P.W.1, an injured, on the evidence of P.Ws.2 and 3; that the lower Court was not ready to believe and accept the evidence of P.Ws.2 and 3 and rejected the same, and thus the only evidence that was available for the prosecution was P.W.1; that P.W.1 was actually the brothers wife of the deceased; that the occurrence even as per the prosecution case, has taken place before a temple where number of persons were also available at that time; that according to the prosecution, the motive was that the deceased Ekambaram wanted to marry the daughter of A-2 and A-3, who is also the sister of A-1, to which they were not amenable, and he got aggrieved, and thus they were on inimical terms; that the occurrence, according to the prosecution, has taken place at 10.30 P.M. on 24. 2003; that it is pertinent to point out that the occurrence has not taken place in the house of the prosecution witnesses which is situated abutting the house of the accused, and thus it would be quite clear that P.W.1 and the deceased were the aggressors; that even at that time, according to the prosecution, there was actually a quarrel, and in that quarrel, A-1 just got into the house and brought the acid can, and A-2 caught hold of P.W.1, and A-3 caught hold of the deceased, and in that, the acid was poured on the deceased, and at that time, acid was poured on P.W.1 also by A-1; that charges have also been levelled against; but, the prosecution has miserably failed in that regard since P.Ws.2 and 3 have given inconsistent version; and that the prosecution further could not prove the overt acts committed by A-2 and A-3. 5. The learned Counsel would further submit that actually there was a free melee, and fight was going on pursuant to the quarrel even as per the available evidence; that as far as accused are concerned, in order to prove the defence plea, D.Ws.1 and 2 were examined; that from the evidence of D.Ws.1 and 2, it would be quite clear that it was the deceased who came with the can filled with kerosene, and it was he who actually poured kerosene on the accused; that further in the instant case, P.Ws.1 and 3 have categorically admitted that they first went to the police station and thereafter to the hospital, and thus they should have given the complaint to the respondent police at the earliest; and that the said complaint has been suppressed for the reasons known to the prosecution. 6. 6. Added further the learned Counsel that it was actually the accused who sustained acid injuries; that the accident register copies have also been produced; that on different parts of the body, they sustained injuries; that acid was actually thrown; that all would go to show the act of the deceased; that apart from that, immediately the deceased was taken to the CMC Hospital, Vellore; that his conditions were actually recorded by the Doctor and the statement of the person who took him, was also recorded in the accident register originally; but that accident register was actually suppressed or not actually produced before the Court; that he was taken to the hospital on 24. 2003; that he was under treatment till 5. 2003 when he died; that the case diary pertaining to the treatment till the time was not filed; that even from the Doctors evidence, it would be quite clear that septicemia was also developed; that in the instant case, as far as A-2 and A-3 are concerned, there is nothing to show that they had got any common intention to share; that in their regard, the evidence was not only feeble, but also weak; that it can be well stated that there was bereft of evidence; and that under the circumstances, they are entitled for acquittal. 7. Added further the learned Counsel that in view of the free fight, so far as A-1 is concerned, even assuming that the prosecution has proved the factual position, the act of A-1 would not attract the penal provision of murder, and this legal position has got to be considered by this Court. 8. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that one Ekambaram, following an incident that took place at 10.30 P.M. On 24. 2003, was taken to CMC Hospital, Vellore, and he was given treatment. Despite treatment, he died on 5. 2003, and the medical opinion has also been canvassed. The above factual position was not disputed by the appellants before the trial Court. 10. 2003, was taken to CMC Hospital, Vellore, and he was given treatment. Despite treatment, he died on 5. 2003, and the medical opinion has also been canvassed. The above factual position was not disputed by the appellants before the trial Court. 10. The gist of the case of the prosecution was that Ekambaram wanted to marry the daughter of A-2 and A-3, who is also the sister of A-1, to which they were not amenable, and in that strained relationship prevailed; that at the time of occurrence namely 10.30 P.M., on 24. 2003, both P.W.1 and Ekambaram were just in front of the temple; that A1 went inside the house and brought a can filled with acid, and A-2 caught hold of P.W.1 and A-3 caught hold of the deceased, and at that juncture, A-1 poured acid both on P.W.1 and also the deceased. In order to substantiate the above accusation, three witnesses were examined by the prosecution. P.W.1 is the brothers wife of the deceased Ekambaram. The evidence of P.Ws.2 and 3 were not accepted by the trial Court for the reason that there were lot of inconsistencies in their evidence which led for rejection of their evidence. So far as P.W.1 was concerned, it is true that she actually sustained injuries, and she was taken to the hospital. She has given statement, and the accident register copy is marked as Ex.P.7, which would clearly indicate that such an occurrence has taken place at 10.30 P.M. on 24. 2003. At this juncture, it is pertinent to point out that the only witness available for the prosecution regarding the act of A-2 and A-3, is P.W.1. The earliest document which has come into existence is the accident register copy. Thereafter a Magistrate was called to record her dying declaration. Since she is alive, the document could not be taken as a dying declaration and could not even be attached with some evidentiary value; but, it could be treated as statement under Sec.161 Cr.P.C. But, at the same time, it has been marked as Ex.P.2. A perusal of the same would clearly indicate that she was actually caught hold of by A-3; but, the prosecution case is otherwise. A perusal of the same would clearly indicate that she was actually caught hold of by A-3; but, the prosecution case is otherwise. According to the prosecution, it was A-2 who caught hold of her, and thus, the benefit of this inconsistency between the document and the prosecution case as put forth before the trial Court, must go to the accused. 11. Apart from the above, as could be seen from the available evidence and circumstances shown, when A-1 actually threw acid on P.W.1 and the deceased Ekambaram, A-2 and A-3 who were actually by the side, would have intervened to pacify the situation, and in that process, the acid sprang on them, and they have sustained injuries; but, the trial Court has taken a view that the fact that A-2 and A-3 have sustained injuries at the time of the transaction would be pointing to their presence at the time of occurrence and also their involvement. In the considered opinion of this Court, the fact that A-2 and A-3 sustained injuries has to be taken that they sustained injuries in that process when they intervened to pacify the situation, and there is also nothing to show that they have shared the common intention with A-1. All put together would go to show that it is highly doubtful whether A-2 and A-3 could have got any involvement in the transaction, and thus the benefit should go to A-2 and A-3. They are entitled for acquittal in the hands of this Court. 12. As far as A-1 is concerned, the lower Court has rightly accepted the evidence of P.W.1. Needless to say in a given case like this, when one of the eyewitnesses happened to be an injured witness, the evidence of such witness should not be discarded or rejected unless and until a strong circumstance is noticed or reason is brought about. In the instant case, P.W.1 has given categorical evidence. Apart from that, there was also motive when Ekambaram wanted to marry the daughter of A-2 and A-3, who is also the sister of A-1, and they refused. Thus they were on inimical terms. A-1 poured acid at the time of occurrence not only on the deceased but also on P.W.1. The evidence of P.W.1 has inspired the confidence of the Court. Thus they were on inimical terms. A-1 poured acid at the time of occurrence not only on the deceased but also on P.W.1. The evidence of P.W.1 has inspired the confidence of the Court. It would be quite clear that it was A-1 who poured acid both on the deceased and also on P.W.1. This has been clearly proved by the prosecution by sufficient evidence. 13. As far as the second line of argument that the act of A-1 would not attract the penal provision of murder is concerned, this Court is able to see sufficient force. In the instant case, it is true that A-1 has poured acid on the deceased and also on P.W.1 at the time of occurrence. It is to be pointed out that he was taken to CMC Hospital, Vellore, on 24. 2003, and he was admitted there. He has been in the hospital as inpatient till 5. 2003. Immediately, when he was admitted in the hospital, whether he was oriented, whether he was conscious and whether he was actually in a position to speak, no evidence is available. All these conditions should have been recorded in the accident register; but, the accident register was not filed, or the original has not been summoned. No reasons are brought to the notice of the Court by the prosecution. Apart from this, the deceased was under treatment from 24. 2003 till 5. 2003. From the evidence of Doctor, it would be quite clear that Ekambaram also developed septicemia. Under such circumstances, a duty is cast upon the prosecution to produce the case diary pertaining to the treatment, but it has failed to do so. Thus, all these circumstances have got to be taken into account. As far as the nature of the act of A-1 is concerned, this Court is of the considered opinion that the act of A-1 would not attract the penal provision of murder, but would attract the provisions under Sec.304 (Part I) of IPC and awarding punishment of seven years Rigorous Imprisonment would meet the ends of justice. 14. Accordingly, the conviction and sentence imposed by the trial Court on A-1 under Sec.302 of IPC are set aside, and instead A-1 is convicted under Sec.304 (Part I) of IPC and is directed to suffer seven years Rigorous Imprisonment. The fine amount awarded by the trial Court will hold good. 14. Accordingly, the conviction and sentence imposed by the trial Court on A-1 under Sec.302 of IPC are set aside, and instead A-1 is convicted under Sec.304 (Part I) of IPC and is directed to suffer seven years Rigorous Imprisonment. The fine amount awarded by the trial Court will hold good. The period already undergone by A-1 shall be given set off. 15. As far as the conviction of A-1 by the trial Court under Sec.326 of IPC is concerned, this Court is of the view that the same has got to be sustained. Accordingly, it is sustained. But, the life imprisonment awarded by the trial Court is modified, and A-1 is directed to undergo five years Rigorous Imprisonment under Sec.326 IPC. 16. As regards the conviction and sentence imposed by the trial Court on A-1 under Sec.341 read with 34 of IPC, the same are set aside, and A-1 is acquitted of that charge. 17. In the result, this criminal appeal is partly allowed setting aside the judgment of conviction and sentence passed by the lower Court in respect of A-2 and A-3. A-2 and A-3 are acquitted of the charges levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them will be refunded to them. It is reported that A-1 is on bail. Hence the Sessions Judge will take steps to commit A-1 to prison to undergo the remaining period of sentence. Both the sentences imposed on A-1 are to run concurrently.