Judgment :- 1 The appellants herein were tired as accused 1 to 4 in S.C.No.154 of 2001 by the VIII Additional District and Sessions Judge (FTC) Visakhapatnam for the offences punishable under Sections 449, 302, 302 r/w 34, 307 and 307 r/w 34 of IPC. The trial Court having considered the oral and documentary evidence available on record, found them guilty and accordingly sentenced all the appellants to undergo rigorous imprisonment for two years and to pay a fine of Rs.200/- each, in default, S.I. for a period of two months each, for the offence punishable under Section 450 of IPC. Further, the first appellant was sentenced to suffer rigorous imprisonment for a period of 10 years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for a period of three months for the offence punishable under Section 304 Part I of IPC, and was further sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.300/-, in default, simple imprisonment for two months for the offence punishable under Section 326 of IPC and the appellants 2 to 4 were further sentenced to suffer rigorous imprisonment for a period of 10 years and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of three months for the offence punishable under Section 304 Part I r/w 34 of IPC and they were further sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.300/- each, in default, to suffer simple imprisonment for a period of two months for the offence punishable under Section 326 r/w 34 of IPC. However, all the substantive sentences of imprisonment were ordered to run concurrently. 2 The gravamen of the charge against the appellants is that on the intervening night of 24/25.01.2001, all of them in furtherance of their common intention, trespassed into the house of Lagudu Kondababu-P.W.3 and the first appellant caused the death of his daughter Lagadu Kumari (hereinafter called as 'the deceased') by pouring acid on her. In the course of the same transaction, the other appellants attempted to cause the death of Lagudu Papa-P.W.1 and Gavireddy Ammaji-P.W.2. In the course of the same transaction, the other appellants attempted to cause the death of Lagudu Papa-P.W.1 and Gavireddy Ammaji-P.W.2. 3 The case of the prosecution, as culled out during the course of trial, in brief, is as follows: 4 P.Ws.1 and 3 are parents and P.W.2 is the cousin of the deceased and P.W.1 is eking out her livelihood by running a tea stall. The father of the second appellant had a site adjacent to the house of P.W.3 and he occupied three cents of the said site and laid a pipe to drain the used water into the site and on account of which there were disputes between them. It is the further case of the prosecution that P.W.7 who is the nephew of P.W.3 used to tease the sister of the second appellant and on that premise appellants 1 and 2 beat him. When the same was questioned by P.W.3, there was an altercation between the appellants and P.W.3. Afterwards the father of the second appellant filed a case against P.W.3 and his two sons and P.W.7. Be that as it may, on 24.01.2001 while P.W.1 was sleeping in front of the tea stall of the thatched hut, at about 12.00 midnight, all the appellants trespassed into the hut and poured liquid substance on the deceased and P.W.2 and as the said liquid happened to be acid, the deceased received severe burn injuries and so she raised hue and cry and on that P.W.1 woke up and requested the appellants not to harm her. Without heeding to her request, appellants 2 to 4 caught hold of P.Ws.1's legs and the first appellant poured acid on her and ran away. Immediately thereafter all the injured went to the house of P.W.3 and on requisition, P.W.11 who is a practicing doctor, visited them, gave first aid and advised them to go to the Government Hospital at Narsipatnam and accordingly all the injured were taken to the Government Hospital where P.W.12 examined them and issued wound certificates which were marked as Exs.P6 and P7 respectively. On intimation, the Judicial Magistrate of I Class, Narsipatnam, who was examined as D.W.1, visited the hospital and recorded the dying declaration of the deceased on 25.01.2001. On intimation from the hospital, the Assistant Sub Inspector of Police, Narsipatnam visited the hospital and recorded the statement of P.W.1, which was marked as Ex.P.1. On intimation, the Judicial Magistrate of I Class, Narsipatnam, who was examined as D.W.1, visited the hospital and recorded the dying declaration of the deceased on 25.01.2001. On intimation from the hospital, the Assistant Sub Inspector of Police, Narsipatnam visited the hospital and recorded the statement of P.W.1, which was marked as Ex.P.1. Thereafter on a reference made by him, the Station House Officer, K.D. Peta, who has jurisdiction, registered the same as a case in Crime No.3 of 2001 for the offence punishable under section 307 r/w 34 of IPC and issued F.I.R, which was marked as Ex.P.20, to all the concerned. The Sub Inspector of Police, K.D. Peta who was examined as P.W.19 took up investigation, visited the scene of offence at 11.00 pm and seized the relevant material objects i.e. M.Os.1 to 6 in the presence of P.W.10 under the cover of Ex.P.4 scene observation report. P.W.19 also prepared a rough sketch of the scene of offence, which was marked as Ex.P.22 and got the scene of offence photographed by P.W.15. Later he proceeded to the house of P.W.3 where he seized M.Os.7 to 18 and he also examined P.Ws.3, 5, 6 and 15 and recorded their statements. P.W.19 visited the hospital and examined P.Ws.1, 2 and the deceased on 28.01.2001. As there was a prima face proof, P.W.19 arrested the appellants 1 to 4 and produced them before the Magistrate concerned and the appellants were remanded to judicial custody. The material objects that were seized at the scene of offence were sent to the Regional Forensic Science Laboratory and the report issued by the said laboratory was marked as Ex.P.14. As the deceased died on account of the burn injuries, P.W.19 altered the section of law to 302 of IPC and issued the altered F.I.R, which was marked as Ex.P.25. The Inspector of Police, who was examined as P.W.20, took up further investigation in the case, held inquest over the dead body of the deceased in the presence of P.W.6 under the cover of Ex.P.3 Inquest report. On a requisition received from P.W.20, P.W.14 the Professor, Forensic Medicine in Andhra Medical College, Visakhapatnam, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to septic and toxic complications due to infected burns and issue Post Mortem examination report to that effect, which was marked as Ex.P.13. On a requisition received from P.W.20, P.W.14 the Professor, Forensic Medicine in Andhra Medical College, Visakhapatnam, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to septic and toxic complications due to infected burns and issue Post Mortem examination report to that effect, which was marked as Ex.P.13. After completion of the entire investigation, P.W.21 filed the charge sheet. The learned Judicial Magistrate of I Class, Narsipatnam who took cognizance of the offences, registered the case as P.R.C.19 of 2001 on his file and committed the same to the Court of Sessions, Visakhapatnam, which was subsequently numbered as S.C.No.154 of 2001 before the trial Court where all the appellants were tried. 5 To bring home the guilt of the appellants, the prosecution examined 21 witnesses and got marked Exs.P.1 to P.29 and M.Os.1 to 18. As the Judicial Magistrate of I Class, who recorded the dying declaration of the deceased, was not examined by the prosecution, the appellants got examined him as D.W.1. On an analysis of the entire evidence, both oral and documentary, available on record, the trail Court convicted all the appellants as stated supra. Assailing the said conviction and sentence imposed on them, the accused preferred this appeal. 6 The learned senior counsel Mr.C. Padmanabha Reddy appearing for the appellants strenuously contended before this Court that there is absolutely no role attributed to the appellants 2 to 4 and they were falsely implicated in the case. According to him, a perusal of Ex.P.1 i.e. the earliest report of P.W.1 on the basis of which the law is set in motion, Ex.P.27 the statement of P.W.1 recorded by the Magistrate and also the statement of P.W.2 marked as Ex.P.29 go to show that nothing is mentioned about the participation or role of the appellants 2 to 4 and he further contended that even as per the dying declaration of the deceased marked as Ex.P.28 also, it is clear that there is absolutely nothing to establish the guilt of the appellants 2 to 4. According to the learned senior counsel in Ex.P.29 the statement of P.W.2 and the dying declaration of the deceased i.e. Ex.P.28 what was stated is that some body poured acid whereas it is only in Ex.P.27 the statement of P.W.1, the role of the first appellant was spoken to. According to the learned senior counsel in Ex.P.29 the statement of P.W.2 and the dying declaration of the deceased i.e. Ex.P.28 what was stated is that some body poured acid whereas it is only in Ex.P.27 the statement of P.W.1, the role of the first appellant was spoken to. When once the said evidence does not lay any emphasis to hold the appellants 2 to 4 guilty, the trial court instead of acquitting them ordered their conviction. The learned senior counsel further contended that the offence, if any, allegedly committed by the first appellant, at best, could be an offence punishable under Section 326 of IPC only, but by any stretch of imagination, it cannot be said that it is an offence falling under section 304 Part I or Part II of IPC. 7 Per contra, the learned Additional Public Prosecutor, while opposing the said contentions, submitted that the appellants intentionally trespassed into the house of the deceased, P.Ws.1 and 2 and poured acid on them, which amounts to an offence punishable either under Section 302 of Under section 307 of IPC and as the prosecution has successfully established the mens ria of the appellants that is required, the trial court rightly held the appellants guilty of the offences charged against them and as such the said judgment needs no interference. 8 In the light of the said submissions, it is necessary to refer to Ex.P.1 the report and Ex.P.27 the statement of P.W.1, Ex.P.29 the statement of P.W.2 and Ex.P.28 the dying declaration of the deceased. 9 Ex.P.1 dated 25.01.2001 is the genesis for registration of the case on hand and the same was given at 5.00 am i.e. within hours of the alleged incident. In the said report, according to P.W.1, by the time she reached and witnessed, the first appellant was present there at the scene of offence with a bottle in his hand. Immediately thereafter he put out the lamp and poured the liquid in the bottle on her face on account of which she received burn injuries. There is absolutely nothing to discredit the said statement. As per the said statement, it is only the first appellant who poured acid on P.W.1. As her condition was critical, P.W.17 recorded her statement in the presence of the Civil Assistant Surgeon-P.W.12. There is absolutely nothing to discredit the said statement. As per the said statement, it is only the first appellant who poured acid on P.W.1. As her condition was critical, P.W.17 recorded her statement in the presence of the Civil Assistant Surgeon-P.W.12. According to the doctor, the patient was conscious and was in fit condition to give the statement and when questioned by P.W.16, P.W.1 stated that Komanapalli Audinarayana @ Dharalu came and poured acid on her face. Pursuant to the said pouring, there emanated heat on the face. In the earliest statement of P.W.1 recorded by the Magistrate which was marked as Ex.P.27, P.W.1 did not state anything about the participation of the appellants 2 to 4. Immediately after recording the statement of P.W.1, the learned Magistrate recorded the statement of P.W.3 i.e. Ex.P.29. According to the said statement of P.W.3, during the night when she was sleeping along with P.W.1 and the deceased on cots in front of the hotel, some body came and poured acid on them. P.W.3 could not give the names of the assailants and according to her some strangers poured acid on them. When the said statement of P.W.3 is read together with the statement and report of P.W.1, the only conclusion to which the court can arrive at is that the appellants poured acid on P.Ws.1, 2 and the deceased. 10 The other most important piece of evidence in this case is the dying declaration of the deceased marked as Ex.P.28. The statements of all the injured were recorded at one point of time i.e. at 4.40 a.m. on 25.01.2001. In Ex.P.28 dying declaration also the deceased stated that some body came and poured acid on her face and she has not witnessed them. She further stated that she cannot say who poured the said acid. If the statement of P.W.2 marked as Ex.P.29 and the dying declaration of the deceased marked as Ex.P.28 are to be accepted, there is absolutely no case against any of the appellants. But it shall be remembered that P.W.1 has categorically stated that it was the first appellant who trespassed into the house and poured acid on them. Ex.P.1, as stated supra, is the earliest in point of time in which P.W.1 has clearly mentioned the name of the first appellant and thereafter also in Ex.P.27 she clearly attributed the alleged offence to the first appellant. Ex.P.1, as stated supra, is the earliest in point of time in which P.W.1 has clearly mentioned the name of the first appellant and thereafter also in Ex.P.27 she clearly attributed the alleged offence to the first appellant. The dying declaration i.e. Ex.P.28 and the statement of P.W.2 i.e. Ex.P.29 shall be read conjointly and they should not be read in an isolated manner. If Exs.P.27 to P.29 are read together, it is clear that it is only the first appellant who poured acid on the victims but not the other appellants. Of course, these witnesses, for the first time, during the course of evidence in the court hall, have stated in so many words about the participation, role etc., of all the accused. If really it is a fact that all the appellants have poured acid on the faces of P.Ws.1, 3 and the deceased, nothing prevented them from making a mention about their participation also in the earliest statements i.e. Exs.P.1, P.27, P.28 and P.29. There is a possibility for the witnesses to forget all that had happened at later stage, but everything would be in their mind immediately after the incident and there cannot be scope for them to forget the things that had happened just immediately after the incident. So, if really the appellants 2 to 4 have also participated in the commission of the offence, definitely their names would have been revealed in Exs.P.1, P.27, P.28 and P.29. When the victims do not make a mention in those reports, which were recorded immediately after the commission of the offence, it is highly improbable to believe that all the appellants have participated in the offence by virtue of the evidence of P.Ws.1 and 2, which was recorded after about 2 1/2 years from the date of offence i.e. on 03.06.2003. Implication of the appellants 2 to 4 also cannot be ruled out in view of the previous enmity between the victims and the appellants. So from the above it is clear that the prosecution tried to exaggerate the case. In the light of the above discussion, this Court is thoroughly satisfied that the trial Court erred in convicting the appellants 2 to 4 for the offences punishable under Sections 450, 304 Part I r/w 34 and under section 326 r/w 34 of IPC and they are accordingly entitled to be acquitted of the said charges. In the light of the above discussion, this Court is thoroughly satisfied that the trial Court erred in convicting the appellants 2 to 4 for the offences punishable under Sections 450, 304 Part I r/w 34 and under section 326 r/w 34 of IPC and they are accordingly entitled to be acquitted of the said charges. 11 Now what is to be seen is as to whether the first appellant has committed the offence punishable under Section 304 Part I of IPC as held by the trial Court. From Ex.P.1 and P.27 i.e. the report and statement of P.W.1 it is clear that the first appellant entered the house and poured acid on the victims on account of which P.Ws.1 and 2 received burn injuries whereas the deceased died. From the said act, can this court come to the conclusion that the first appellant has committed the offence punishable under section 304 Part I of IPC or some other offence? 12 According to Section 299 of IPC, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide and if either of the ingredients as defined under section 299 IPC are satisfied, then it is a case falling either under section 304 Part I or under Section 304 Part II of IPC. Hence the requirement in this case is to see as to whether the first appellant had the required intention of causing death or causing such bodily injury as is likely to cause death or the required knowledge that it is likely to cause death of the deceased. As stated supra, it is only in Exs.P.1 and P.27 report and statement of P.W1 the role of pouring acid is attributed to the first appellant. Apparently from the evidence as well as the exhibits, it is clear that there are disputes between the first appellant and P.Ws.1 to 3 and that was the reason for the entire episode. If the intention of the first appellant was to cause the death of the deceased and P.Ws.1 and 2, he, in the normal circumstances, would not go to the scene of offence with an acid bottle and come out immediately after pouring acid. If the intention of the first appellant was to cause the death of the deceased and P.Ws.1 and 2, he, in the normal circumstances, would not go to the scene of offence with an acid bottle and come out immediately after pouring acid. From the circumstances what is to be inferred is that the first appellant has the intention to cause grievous hurt and in the given circumstances, it cannot be said that he had the required intention to cause the death of the deceased or knowledge that on account of the said pouring of acid the deceased would die of burn injuries. As stated supra, his intention must be to cause grievous hurt to the victims. As there is cogent and clinching evidence that P.Ws.1 and 2 received burn injuries on account of pouring of acid and the deceased died on account of the very same burn injuries, it can definitely be held that the first appellant is guilty of the offence punishable under Section 326 of IPC. 13 In the light of the above discussion this court is thoroughly convinced that the trial Court grossly erred in convicting the appellants 2 to 4 for the offences for which they were tried and accordingly the said sentences of imprisonment awarded by the trial Court against the appellants 2 to 4 are set aside. 14 Further in the light of the above discussion, this court is of the view that the first appellant had neither the required intention to cause the death of the deceased nor had knowledge that the said act of pouring acid would cause the death of the deceased, but, however, as he had an intention to cause grievous hurt to the victims, he can as well be convicted for the offence punishable under Section 326 of IPC instead of 304 Part I of IPC. 15 However, as the offence allegedly took place about 8 years back and the first appellant was aged 25 years by that time, this Court, instead of maintaining the sentence of imprisonment of five years, as awarded by the trial Court, by taking a lenient view, imposes sentence of three years. 15 However, as the offence allegedly took place about 8 years back and the first appellant was aged 25 years by that time, this Court, instead of maintaining the sentence of imprisonment of five years, as awarded by the trial Court, by taking a lenient view, imposes sentence of three years. Further, as the presence of the first appellant at the time of commission of offence was established, and as the substantive sentences of imprisonment can be ordered to run concurrently, this Court does not wish to interfere with the conviction and sentence of two years as imposed by the trial court against the first appellant for the offence punishable under Section 450 of IPC. 16 In the result, the Criminal Appeal is partly allowed. The conviction and sentence, in respect of all the offences for which the appellants 2 to 4 were tried, are hereby set aside. However, insofar as the first appellant is concerned, he is found not guilty of the offence punishable under Section 304 Part I of IPC, but is found guilty of the offence punishable under Section 326 IPC and is sentenced to undergo rigorous imprisonment for three years. The remand period of the first appellant, which he has already undergone, is given set off U/s.428 of Cr.P.C and he is directed to be taken into custody to serve the remaining period of sentence. The substantive sentences of imprisonment shall run concurrently.