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2018 DIGILAW 424 (ALL)

RAMAKANT v. STATE OF U. P.

2018-02-16

A.P.SAHI, RAJEEV MISRA

body2018
JUDGMENT : Amreshwar Pratap Sahi and Rajeev Misra, JJ. Heard Sri Mangla Prasad Rai, learned counsel for the appellant and Sri Saghir Ahmad, the A.G.A. for the State. 2. The present appeal has been filed against the judgment of conviction and sentence of the appellant by the learned Additional Session Judge/Special Judge (SC/ST Act), Fatehpur in Session Trial No. 62 of 2003 under Section 304/324 I.P.C. and section 3 (2) (v) SC/ST Act arising out of Case Crime No. 109 of 2002, whereby the appellant has been convicted and sentenced to undergo 10 years R.I., with the additional fine of Rs. 3,000/- and in default thereof to undergo one years further imprisonment. 3. In view of the provisions of section 3 (2) (v) of the SC/ST Act, the offence has been found to be proved by the learned trial court and the conviction and sentence of the appellant has been awarded under the said provision enhancing the sentence to life imprisonment together with fine of Rs. 1,000/- and in default thereof to undergo three months further imprisonment. 4. The genesis of this case as disclosed from the first information report up to the stage of recording of the statement of the accused indicates a deplorable state of affairs with regard to the manner in which investigation proceeded and has ultimately culminated in the conviction of the appellant. 5. At the very outset, it is brought to the notice of the Court that the first informant, Jag Mohan, who has been examined as P.W.-1 and is the husband of the deceased Smt. Sampata Pasi admittedly lodged two written reports on the same day, that is, on 11th April, 2002 about the incident, which is alleged to have taken placed on 2nd April, 2002 between 4.30 PM and 5.00 PM. The incident as described took place on the occasion of post Holi celebrations at the Primary Health Centre, Haswa, Fatehpur, Police Station Thariyaon, District-Fatehpur. The description of the incident is that while the celebrations were going on, one Pharmacist of the same Primary Health Center, Ashok Kr. Patel exhorted the appellant Ramakant Tiwari, who is working as a peon in the same Primary Health Centre, Fatehpur and handed him a container, which is alleged to be containing a coloured liquid mixed with acid for throwing at the deceased Sampata, that led to the burn injuries of the deceased. Patel exhorted the appellant Ramakant Tiwari, who is working as a peon in the same Primary Health Centre, Fatehpur and handed him a container, which is alleged to be containing a coloured liquid mixed with acid for throwing at the deceased Sampata, that led to the burn injuries of the deceased. It is alleged in the F.I.R. that this was proceeded by misbehaviour by the appellant and Ashok Kumar Patel with the deceased who had resisted them. Dr. Ram Autar Katiyar, who has been examined as a court witness, C.W.-1 was the first to be informed about the said injuries by the deceased herself, who had advised her to apply some ointment, where after the deceased went away. It may be noted at this stage that there is no evidence of any medical treatment having been either offered or treatment having been carried out at the Primary Health Centre, Haswa. It may also be noted at this stage that the incident is stated to have taken place at 4.30 PM. but no information either to the police or to any other authorities about the occurrence of any such incident was tendered either by the deceased, her husband or even her sister who has been produced as P.W.-4, Smt. Ram Dulari. Consequently, no F.I.R. or police report or any information was ever tendered in respect of the said incident of acid throwing on the deceased. It is stated that the deceased was admitted to a private hospital Ashok Nursing Home and when later on the deceased developed complications, she was admitted in Haswa Primary Health Center, Fatehpur on 8th April, 2002 and then she was referred to the District Hospital, Fatehpur on the same day where she was admitted at about 9.50 AM. 6. The admission at Primary Health Centre, Haswa and reference is not supported by any documentary evidence but her admission at the District Hospital, Fatehpur has been proved by Paper No. Ka-13, that has been exhibited and where the description is that she had suffered burn injuries that were six days old and no urine passed for one day as a result there was a diagnosis of renal failure as well. She under went treatment for about one day but ultimately, she succumbed to the injuries on 9th April, 2002. 7. She under went treatment for about one day but ultimately, she succumbed to the injuries on 9th April, 2002. 7. The inquest report was prepared on 9th April, 2002 after being conducted in the presence of the police and a written report is stated to have been moved by the husband of the deceased informing about the said death of the deceased. The postmortem examination was carried out on the same day, i.e., on 9th April, 2002 by Dr. A. P. Tripathi, who had been examined as P.W.-5 and the cause of death shown in the postmortem examination report was shock and hemorrhage due to ante-mortem burn injuries. 8. The two first information reports were registered on 11th April, 2002, where after, the investigation commenced and a charge-sheet was submitted only against the appellant Ramakant Tiwari in spite of the fact that the first information report indicated the involvement of Ashok Kumar Patel having committed the offence by handing over the liquid container with acid inside it that was alleged to have been thrown on the deceased by the appellant and also the same having been witnessed by Dr. Ram Autar Katiyar. Nonetheless, the charge-sheet indicted only the appellant and the trial proceeded thereafter. 9. Thus, at the very stage of investigation, in spite of the fact that the first information report nominated three persons, the prosecution case was substantially diluted by not charging any of the other two persons named in the first information report. The case took a turn when all the six prosecution witnesses, namely, P.Ws.1 to 6 came to be examined, out of which P.W.-1, the husband of the deceased Jagmohan turned hostile and similarly the other witness of fact, namely, P.W. 2 followed suit. However, the sister of the deceased Smt. Ram Dulari, who was examined as P.W. 4, has supported the prosecution version. The postmortem report was explained by P.W.-5, Dr. A. P. Tripathi but during cross-examination, he admitted that the extent of burn injuries were not mentioned or recited in detail except that the injuries were three in number and were superficial burn injuries. The postmortem report was exhibited as Ka-7 and the same was proved in the manner aforesaid by P.W.-5. 10. A. P. Tripathi but during cross-examination, he admitted that the extent of burn injuries were not mentioned or recited in detail except that the injuries were three in number and were superficial burn injuries. The postmortem report was exhibited as Ka-7 and the same was proved in the manner aforesaid by P.W.-5. 10. The Investigating Officer, who was the Circle Officer during trial had died and therefore, he could not be produced and in his place, the recorder of the first information report constable Kamarjosh Singh, P.W.-6 was introduced as a witness, who corroborated the lodging of the first information report and nothing beyond that. 11. It is worth-noting that the first information report as well as the statement of witnesses of the fact, namely, P.W.-4, who had supported the prosecution version mentioning the name of one Ram Bahori, who is stated to be present at the time of incident and had allegedly received injuries, was produced and examined as a court witness, C.W.-2. He denied the entire prosecution story of the incident relating to the offence and turned hostile. To the same effect, Banwari Lal, who had been produced and examined as C.W.-3, did not support the prosecution version. Dr. Ram Autar Katiyar, C.W.-1, further admitted that he had advised the deceased to apply ointment on the burn injuries, which according to him was superficial in nature, for treatment. 12. There is one more interesting fact, which deserves to be noticed in this case, namely, that when P.W.-1 was deposing before the court and his examination-in-chief was still undergoing and was in process, the prosecution at that stage moved an application under Section 319 Cr.P.C., 1973 for summoning the other nominated persons as accused in the first information report. 13. The trial as it appears from the order-sheet, thereafter came to a stand still and ultimately, according to the order as is evident from the original records dated 29th June, 2006, the above-mentioned application moved on behalf of the prosecution was got dismissed as not pressed. Thus, the attempt of the prosecution in order to bring home the guilt by calling upon the other suspects was ultimately eliminated by not pressing the application under Section 319 Cr.P.C., 1973 The examination in chief of P.W.-1 Jagmohan had been recorded in 2005 but he was produced for cross-examination after three years, i.e., on 6th May, 2008. Thus, the attempt of the prosecution in order to bring home the guilt by calling upon the other suspects was ultimately eliminated by not pressing the application under Section 319 Cr.P.C., 1973 The examination in chief of P.W.-1 Jagmohan had been recorded in 2005 but he was produced for cross-examination after three years, i.e., on 6th May, 2008. By that time, the prosecution witnesses, who were being examined, particularly P.W.-1 and P.W.-2, who were the witnesses of the fact, turned hostile. However, the prosecution tried to save the entire process and was partially successful with the deposition of P.W.-4, Smt. Ram Dulari, the sister of the deceased. She deposed that she was a witness to the incident and that she had seen the occurrence herself from a distance of 7 or 8 hands away on the date when the deceased received her injury during the celebration of Holi on 2nd April, 2002. The suggestions that were put forth and the statement recorded under Section 161 Cr.P.C., 1973 that was put to her for explanation, was answered by her in almost an unfailing manner by supporting the case of the prosecution. 14. Dr. A.P. Tripathi, who was produced as prosecution witness P.W.-5, supported the postmortem report but categorically stated that he had neither recorded the percentage of the burn injuries nor was he able to tell at the time of deposition as to what was the status of injury. Regarding the statements of the court witnesses, out of whom C.W.-1 and C.W.-4 were those, who had been named in the first information report, it transpires that the entire prosecution story was such that it did not support the prosecution in any way. 15. The statement of the appellant was recorded under Section 313 Cr.P.C., 1973 who while answering question no. 2 only indicated that P.W.-4, Smt. Ram Dulari at the time of examination, was working in Sipsa Scheme at the same Primary Health Center, Haswa, where the incident took place. 16. 15. The statement of the appellant was recorded under Section 313 Cr.P.C., 1973 who while answering question no. 2 only indicated that P.W.-4, Smt. Ram Dulari at the time of examination, was working in Sipsa Scheme at the same Primary Health Center, Haswa, where the incident took place. 16. The learned trial court after having assessed the entire evidence, relying on the medical evidence that was produced and corroborating it with the statement of the witnesses of that particularly P.W.-4, Smt. Ram Dulari, came to the conclusion that the date, time, place and the occurrence of the incident stood established and further came to the conclusion that the involvement of the appellant on the strength of ocular testimony was also proved particularly relying on the testimony of P.W.-4. It is in this back ground that the learned counsel for the appellant has advanced his submissions. 17. It is urged by the learned counsel for the appellant that the oral testimony led on behalf of the prosecution has utterly failed to establish the guilt of the appellant beyond reasonable doubt including his participation; The prosecution witnesses, namely, P.W.-1 and P.W.-2 had clearly turned hostile whereas the testimony of P.W.-4, Smt. Ram Dulari is absolutely untrustworthy inasmuch as her presence at the time of the incident is also not established. It is urged that P.W.-4 did claim herself to be employed at the hospital where the incident took place but she failed to certify and support her presence by getting her presence recorded by way of attendance at the Primary Health Center, Haswa on the date and time of the incident. He further submits that the very fact that no F.I.R. or information to the police was given on the date of incident or even thereafter, is sufficient to presume the false implication of the appellant and even otherwise, the husband of the deceased Jagmohan, who has turned hostile, has clearly denied the commission of any such offence involving the appellant. 18. Coming to the testimony of the formal witnesses, it is urged that the Doctor, who carried out the postmortem, namely, P.W.-5, Dr. A. P. Tripathi, has clearly stood that he had not recorded the extent of burn injuries in order to establish as to whether they were fatal or not. 18. Coming to the testimony of the formal witnesses, it is urged that the Doctor, who carried out the postmortem, namely, P.W.-5, Dr. A. P. Tripathi, has clearly stood that he had not recorded the extent of burn injuries in order to establish as to whether they were fatal or not. It is further pointed out that the testimony further records that on a specific question during cross-examination as to whether the alleged injuries said to have been sustained by the deceased was sufficient to cause serious injuries resulting in death, the said witness clearly deposed that he could not give any opinion about the same. 19. It is thus urged that the postmortem report was not fully corroborated by the testimony of the Doctor himself and therefore, this doubt should be read in favour of the accused and even otherwise, if the postmortem report is taken on its face value, then in that event, the offence cannot travel beyond the description as contained in the provisions of Section 326 I.P.C. keeping in view the nature of superficial burn injury indicated in the postmortem report. 20. He then submits that there is complete lack of evidence in order to establish that there was any intention on the part of the appellant to commit the offence of murder and for that he submits that there is a clear variation in the description made in the first information report as against the testimony of P.W.-4, inasmuch as, the first information report indicates that a bottle of acid was handed over by one Ashok Kumar Patel to the appellant, which was thrown by appellant on the deceased whereas P.W.-4, Smt. Ram Dulari in her testimony, has stated that the appellant went inside a room and mixed acid in a coloured substance, which he himself threw on the deceased. He submits that this variation clearly suggests strong motive on the part of P.W.-4, who being the real sister of the deceased, has clearly altered the story of the prosecution by introducing the manner of administering the acid, which is in complete contradiction to the version of the F.I.R. that was proved by P.W.-1, Jag Mohan, who is the husband of the deceased. He submits that this contradiction makes the presence of P.W.-4 doubtful, inasmuch as, the first information report that was lodged by the husband nowhere mentions that P.W.-4 was also present at the time of incident. He therefore contends that the testimony of P.W.-4 is absolutely untrustworthy and at least for the purpose of gathering any intention, her statement to the effect that the acid had been mixed up in a coloured substance inside a room was a complete afterthought and contrary to the prosecution version itself. 21. The submission therefore is that the evidence did not support the original story of the prosecution and even thereafter the absence of evidence of medical examination at the Primary Health Center and administering of any treatment clearly raises a serious doubt about the nature and the depth of the injuries either to gather the intention of the appellant or even otherwise the impact caused by the injuries so as to convict the appellant. 22. The learned counsel therefore submits that on the evidence on record, the conviction could not be brought home but even assuming for the sake of argument that the injuries were caused by throwing of the acid, then there is complete lack of evidence of any intention on the part of the appellant to have caused the injuries so as to result in the death of the deceased so as to bring it within the fold of the definition of murder. It is therefore urged that if the injury was such that deceased sustained it for almost same days, and if she died due to lack of treatment, then such cause of death cannot be attributed to the appellant and at the best, the injuries could be attributed being grievous injuries so as to bring about a conviction under Section 326 of the I.P.C. He therefore submits that the trial court has committed a manifest error in construing the evidence which has been misread by it and has also been omitted so as to sustain the judgment, consequently, the judgment of the trial court deserves to be reversed. 23. In spite of the incident resulting into the injury, no statement of the deceased was recorded either by the police or official much less a dying declaration. 24. 23. In spite of the incident resulting into the injury, no statement of the deceased was recorded either by the police or official much less a dying declaration. 24. The learned A.G.A. on the other hand submits that the trial court after having assessed the entire evidence rightly believed the testimony and evidence of the hostile witnesses to the extent of the date, time and place of incident and also the presence of the appellant on the occasion. It is further submitted that so far as the ocular testimony is concerned, the same supports at least the occasion and the incident and more particularly the court witness Dr. Ram Autar Katiyar, C.W.-1 in his examination-in-chief accepted the happening of the incident including the receipt of injuries by the deceased. 25. He submits that even though the witnesses have denied the actual involvement of the appellant or having seen him having committed the crime, yet the testimony has to be believed and has been rightly accepted by trial court to the extent of the deceased having been injured and sustained the injuries and thereafter having succumbed to it. 26. The learned counsel submits that the explanation, which is sought to be afforded by the defence about complete non-involvement of the appellant, has to be construed in the light of the fact that post Holi celebrations are admitted and are established on record and the use of colour being sprinkled at each other in a gathering of 10 to 12 persons is evident. According to the learned counsel, if the incident did occur, then it is not understandable that if the colour, which was being sprinkled, had some poisonous substance in it, then why the said substance reacted only on the body of deceased and none of the other persons present, who were participating in the celebrations. 27. He submits that in this background, the contention of the appellant cannot be accepted and the trial court has not committed any error in believing the version as narrated by P.W.-4 Smt. Ram Dulari. 27. He submits that in this background, the contention of the appellant cannot be accepted and the trial court has not committed any error in believing the version as narrated by P.W.-4 Smt. Ram Dulari. He contends that any negligence on the part of the Doctor to offer treatment or actual treatment having been carried out, cannot take away the impact of the nature of the injuries sustained by the deceased and therefore, the injuries cannot be treated to be such so as to accept the argument of the appellant for bringing home the conviction under Section 326 I.P.C. He submits that the nature of injuries caused by acid burns are not only grievous in nature but are of a permanent aggravated nature that are not only painful, but also if the victim survives, it entails a life-long painful existence and apart from this, it also involves a massive and extensive medical treatment. 28. Keeping in view the substance used in the crime, the learned A.G.A. submits that no leniency should be shown in such circumstances where it is not necessary to further establish the intention of the offender, who utilized such a substance for the purpose of causing injuries to the victim. It is in this background, he submits that the prosecution has been able to establish the guilt on the appellant, whose presence and involvement is nowhere doubtful and the prosecution version even as contained in the first information report nominates the appellant as a person, who has committed the offence. He further submits that the appellant does not deserve any form leniency from this Court and the judgment of the trial court should be affirmed. , 29. We have considered the submissions and have perused the records. What we find is that the victim admittedly as per the prosecution version did sustain injuries. The two persons apart from the appellant, who were nominated in the first information report, were produced as court witnesses. Out of these two, Dr. Ram Autar Katiyar-C.W.- 1 has admitted the fact of injuries having been sustained by the deceased but he does not appear to have offered any treatment except for the advise given to the deceased for applying some ointment. To this extent, the testimony of the court witness, who was also nominated in the F.I.R. establishes the presence of the deceased on the occasion and having received acid burn injuries. To this extent, the testimony of the court witness, who was also nominated in the F.I.R. establishes the presence of the deceased on the occasion and having received acid burn injuries. The evidence and ocular testimony of even those who turned hostile as noted above coupled with the testimony of P.W.-4 also indicates that the appellant was present in the said celebrations. No alibi was claimed by him. This link having been established, we are unable to find any error in the conclusion drawn by the trial court about the presence of the appellant on the occasion. 30. The Court then has the task of assessing the credence of throwing of the acid and the appellant's involvement in the same. The version in the F.I.R. categorically states that the bottle of acid was handed over by one Ashok Kumar Patel to the appellant after the appellant and Ashok Kumar Patel had misbehaved with the deceased who had resisted them. It is also stated in the F.I.R. that it was the appellant, who threw the acid but the attribution of insulting the deceased with abusive words and imputing caste remarks was attributed to Ashok Kumar Patel. This testimony as against that of P.W.-4, who had supported the version of the prosecution, if compared, would indicate that P.W.-4 has categorically stated that the appellant went inside a room and then came out with a coloured substance mixed with acid that was thrown by him on the deceased. This fact was witnessed by her while standing at 7 to 8 hands away from her sister. During his cross-examination, the defence tried to demolish her presence by introducing the theory of her presence at Verma Crossing at Fatehpur at the time of incident, which was categorically denied by her and she when confronted with the statements under Section 161 Cr.P.C., 1973 categorically and constantly maintained the stand of her presence. The doubt, which is sought to be expressed about her presence, is on the strength that her name is not mentioned in the F.I.R. and that she was not even referred to in the statement of other witnesses including the husband of the deceased so as to establish her presence. A doubt does arise that if she was present, and was an eye-witness, then why did she not inform the police either on the date of the incident or even thereafter. A doubt does arise that if she was present, and was an eye-witness, then why did she not inform the police either on the date of the incident or even thereafter. Added to this is the fact that neither any dying declaration or ever a simple statement of the deceased was recorded as is established from the testimony of Subhash Chand Singh, C.W.-5 and Bhola Ram, C.W.-7. There is no recovery of acid being stored or found during investigation from the scene of occurrence. 31. What is to be noted is that P.Ws. 1 and 2, who are witnesses of fact, have virtually turned hostile and so have the two other nominated persons, who were examined as court witnesses, namely, C.W.-1 and C.W.-4. The other court witnesses Banwari and Ram Bahori, who is stated to have received the injury due to acid throwing, have totally denied the incident. 32. We have examined the same and we are of the opinion that even two the witnesses of fact have turned hostile, then the sole testimony of one of the witnesses of the fact, namely, P.W.-4 could not be successfully dislodged during cross-examination by the defence. The sustenance of the injuries by the deceased due to acid burns as recorded in the postmortem report are clearly corroborated by this testimony. In such circumstances, there is direct evidence to the effect that the deceased sustained injuries due to acid burn that was contained in the bottle that was thrown at her by the appellant. As noted above, the appellant has not even set up an alibi presumably because he is a Peon at the centre and must have been present on duly. 33. The trial court therefore, in our opinion, after having summarized the entire evidence on this score has rightly arrived to this conclusion, which we accordingly affirm. 34. The question now is as to what are the extent of the injuries so as to gather the intention of the appellant in the entire episode. It is evident that the first information report which was lodged by the P.W.-1, husband of the deceased, nominated two persons as accomplices other than the appellant, who were produced as C.W.-1 and C.W.-4, but they were not charge-sheeted. It is evident that the first information report which was lodged by the P.W.-1, husband of the deceased, nominated two persons as accomplices other than the appellant, who were produced as C.W.-1 and C.W.-4, but they were not charge-sheeted. To the contrary when the evidence came to be recorded and P.W.-1 was examined on 30th July, 2005, he proceeded in his examination-in-chief to support the prosecution version but immediately thereafter a turn took place with the moving an application under Section 319 Cr.P.C., 1973 by the prosecution so as to summon the other co-accused as nominated in the F.I.R. 35. We have already noted herein above that the said application was not pressed by the prosecution itself for reasons beyond explanation and consequently, none of the other nominated accused were charge-sheeted or tried. It is thereafter that P.W.-1 in his cross-examination turned hostile on 6th May, 2008 and P.W.-2 followed suit in a similar fashion who is also a witness of fact. It was only P.W.4, who supported the cause and ultimately, the prosecution could not lead any further sustainable evidence to establish that there was any premeditation or any intention to construe that the intent on the part of the appellant to throw the acid was an outcome of any planned thought to commit murder. The injuries that were sustained were initially reported to be superficial and as per the testimony of C.W.-1, the deceased herself had come to P.W. 5, who had advised her to apply some ointment. From the evidence it appears that the deceased was admitted to some Ashok Nursing Home, which is a private hospital but no material was brought on record to support the medical treatment in order to construe as to what were the nature of injuries and its depth so as to construe that they were bound to cause death. Secondly, the postmortem report was conspicuously absent with any specific to be fatal description of the nature of the burn injuries including the percentage and the degree of the burn injuries that could be construed as likely to cause death. In the aforesaid circumstances, the injury which was caused on the date of incident that is 2nd April, 2002 was not indicated of such a nature so as to connect it with the opinion given in the postmortem report that the death had occurred solely on account of such ante-mortem burn injuries. In the aforesaid circumstances, the injury which was caused on the date of incident that is 2nd April, 2002 was not indicated of such a nature so as to connect it with the opinion given in the postmortem report that the death had occurred solely on account of such ante-mortem burn injuries. We find this doubt to be substantiated by the Bed Head Ticket that was filed as exhibit Ka-13 and was proved by C.W.-6, Pharmacist Sri Subash Chand Singh which records burn injuries as well as renal failure. The said bed head ticket also records that there was no passage of urine for the past one day. The bed head ticket was prepared in the hospital on admission of the deceased at 9.50 am on 8th April, 2002. Subhas Chand Singh appearing as C.W.-5 produced the original bed head ticket. It is therefore evident that the renal failure had occurred a day earlier, i.e., 7th April, 2002 according to the document Ex. Ka.-13. 36. It is at this stage that the testimony of P.W.-5, who had carried out the postmortem report deserves mentioned. The Examination in chief of the said witness records that the death might have been caused due to ante-mortem injuries but on cross-examination on specific question as to whether the injury caused on 2nd April, 2002, could have caused death of the deceased, the said witness stated that he could not give any opinion on the same. He also admitted not having recorded the degree of burn injuries in the postmortem report nor he could inform its depth so as to construe that death had been caused only on account of ante-mortem burn injuries sustained by the deceased. The aforesaid medical evidence coupled with the manner in which the prosecution has led evidence establishes that as a matter of fact, had the nature of injury been so serious so as to be fatal, a medico legal case was the first necessity to have been registered. To this extent, it appears that the deceased did not receive any medical treatment so as to construe that the injuries were such that it was considered necessary to be reportable to the police and as is evident from the facts on record, neither any report was made nor any first information report was lodged on the date of the incident till the death of the deceased after one week. 37. 37. The delayed death of the deceased upon any treatment having been administered to her also does not indicate the presence of medical evidence to construe that her injuries were fatal enough as on the date when the incident took place. 38. What appears is that inadequate medical treatment also appears to have intervened in between and there is no evidence to indicate that her treatment had been carried out with due deligence and her death may have been also on account of such negligence of treatment that ought to have been administered to her. Nonetheless, the court has to proceed only on the basis of evidence, which has been led. What we find is that the trial court has not addressed itself in the light of these facts that were on record to arrive at the conclusion so as to construe an intention on the part of the appellant to commit the murder of the deceased. We therefore find support to this extent from the evidence on record that as a matter of fact, the injuries sustained by the deceased were indicated as superficial at the initial stage when the incident had taken place but thereafter complications did develop including renal failure resulting in the death of the deceased. 39. In such a situation where medical negligence may have attributed to the cause of death, the Apex Court in the Case of Tuka Ram and others v. State of Maharastra reported on 2011 (14) SCC 250 has arrived at the conclusion that the offence can be construed to bring out the conviction under Section 326 I.P.C. Having said so, we find that the trial court while proceeding to convict the appellant did not dwell into the ingredients of Section 326 I.P.C., which appears to be clearly attracted on the facts of the present case. 40. We accordingly hold that the appellant was liable to be convicted on account of his conduct as indicated above for having voluntarily caused grievous hurt through dangerous means as defined under Section 326 I.P.C. The case of having committed murder punishable under Section 302 could not be proved by the prosecution beyond reasonable doubt. 41. 40. We accordingly hold that the appellant was liable to be convicted on account of his conduct as indicated above for having voluntarily caused grievous hurt through dangerous means as defined under Section 326 I.P.C. The case of having committed murder punishable under Section 302 could not be proved by the prosecution beyond reasonable doubt. 41. Coming to the second part of the conviction relating to that of under section 3 (2) (v) of the SC/ST Act, the prosecution initiated the trial and charge-sheeted the appellant under the said section on the strength of the version contained in the F.I.R.. The F.I.R. states that before the throwing of acid, the appellant along with Ashok Kumar Patel attempted to misbehave with the deceased who resisted the same where upon Ashok Kumar Patel picked up a bottle of acid and exhorted the appellant to throw the acid on her and while asking him to do so addressed the deceased imputing her with abusive language and also mentioning her caste. 42. When the trial proceeded as indicated above the other witnesses of fact have turned hostile and none of them supported this part of story of the first information report. So far as P.W.-4 is concerned, she supported the prosecution version but did not either in her examination-in-chief or in her cross-examination remotely mention about the use of such language as depicted in the F.I.R. There is also nothing in the evidence to indicate that the appellant himself had uttered any such abuse or caste related words and the allegation in the F.I.R. was upon Ashok Kumar Patel, who was not even charge-sheeted. The application under Section 319 Cr.P.C., 1973 Ended in a fiasco as has been noted by us herein above. 43. It is thus clear that firstly there was no allegation directly against the appellant of having used or intended to have used any derogatory language or gesture and secondly, there is nothing in the entire evidence that the appellant had with the knowledge of the deceased being a scheduled caste witnessed any such utterances to intimidate or demean her. What we have to construe is as to whether the appellant could be held guilty on such evidence for the said offence or not. What we have to construe is as to whether the appellant could be held guilty on such evidence for the said offence or not. In this regard, one has to keep in mind that the offence is of the year 2002 whereas the amendment in the SC/St Act were brought in the year 2016. This difference between the gathering of any such intention under the unamended provision and after its amendment has been dealt with succinctly and very neatly in the recent decision of the Apex Court in the Case of Asharfi v. State of U.P. decided on 8th December, 2017. The Apex Court while explaining the said distinction has held as under:- "1. This appeal arises out of the judgment of the Allahabad High Court in Criminal Appeal No. 8270 of 2007 dated 29.01.2013 in and by which the High Court affirmed the conviction and sentence of the appellant awarded by the trial court. The trial court vide its judgment dated 30.11.2007 convicted the appellant for the offences under Sections 450, 376(2)(g), 323 IPC and under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short 'the SC/ST Prevention of Atrocities Act]. For conviction under Section 376(2)(g) IPC, the appellant was sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 8,000/- with default clause and for conviction under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant was sentenced to undergo life imprisonment with fine of Rs. 10,000/- with default clause. The appellant was also imposed sentence of imprisonment for other offences under Indian Penal Code. 2. Case of the prosecution is that on the intervening night of 8/9.12.1995, appellant Asharfi and one Udai Bhan are alleged to have forcibly opened the door and entered inside the house of PW-3-Phoola Devi and PW-4-Brij Lal and said to have committed rape on PW-3 Phoola Devi. PW-4-Brij Lal was kept away on the point of pistol. On raising alarm, neighbours (PW-1-Rassu and PW-2-Baghraj) came there and on seeing them, the accused persons ran away threatening the witnesses. Based on the complaint lodged by the complainant Brij Lal, FIR was registered in Case Crime No.76 of 1996 under Sections 376/452/323/506 IPC and under section 3(1) 12 SC/ST Act against appellant and one Udai Bhan. On raising alarm, neighbours (PW-1-Rassu and PW-2-Baghraj) came there and on seeing them, the accused persons ran away threatening the witnesses. Based on the complaint lodged by the complainant Brij Lal, FIR was registered in Case Crime No.76 of 1996 under Sections 376/452/323/506 IPC and under section 3(1) 12 SC/ST Act against appellant and one Udai Bhan. After completion of investigation, charge-sheet was filed against the appellant and the said Udai Bhan for the abovesaid offences. As noted above, the appellant and Udai Bhan were convicted for various offences by the trial court. In the appeal preferred by the appellant before the High Court, the High Court affirmed the conviction of the appellant and the said Udai Bhan. 3. We have heard the learned amicus curiae appearing for the appellant. None appeared on behalf of the respondent. We have carefully perused the impugned judgment and materials on record. 4. So far as the conviction under Section 376(2)(g) IPC is concerned, based upon the evidence of PW-3-Phoola Devi and PW-4 Brij Lal and the medical evidence, both the courts below recorded concurrent findings that the charge of rape has been proved. We are not inclined to interfere with the same and also the sentence of ten years of imprisonment imposed upon him. We also find no perversity with respect to the conviction and sentence of the appellant with respect to other offences under Indian Penal Code. 5. In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprisonment. The gravamen of Section 3(2) (v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe". 6. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. 6. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act. 7. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2) (v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community. 8. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained. 9. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained. 9. In the result, the conviction of the appellant under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence of life imprisonment imposed upon him are set aside and the appeal is partly allowed. 10. So far as the conviction of the appellant under Section 376(2)(g) IPC and other offences and sentence of imprisonment imposed upon him are confirmed. As the appellant had already undergone more than ten years, the appellant is ordered to be released forthwith unless he is required in any other case." 44. Keeping in view the ratio of the aforesaid decision and the evidence as on the facts of the present case, the judgment applies squarely herein, consequently, the conviction of the appellant under the provisions of section 3 (2) (v) of the SC/ST Act is absolutely unsustainable and to that extent, the judgment deserves to be set aside. We accordingly partly allowed the present appeal. We set aside the conviction of the appellant under Section 304 I.P.C. and convert the same to be an offence punishable under Section 326 I.P.C. The conviction of the appellant under the provision of section 3 (2) (V) of the SC/ST Act is set aside. 45. The appellant is in jail from the date of the judgment of the trial court i.e 3rd of March 2012 and must have been for a few days before he had been bailed out during trial. However, in view of the period of incarceration already suffered by the appellant, which is to the extent of more than 5 years and 11 months, in the present case we find it to be sufficient punishment for the appellant and we therefore set aside the sentence awarded by the learned trial court and substitute the same by the period of sentence already undergone by the appellant till today. 46. The appellant shall be set at liberty forthwith provided that the appellant is not wanted in any other case. 47. A copy of this judgment be sent to the trial court for further action.