HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NOs. 808 AND 1110 OF 2001 DATED: 29.07.2010 Crl.A.No.808 of 2001 BETWEEN: Molleti Ramana .. Petitioner And State of A.P Rep.by Public Prosecutor .. Respondent Crl.A.No.1110 of 2001 BETWEEN: Yeddu Atchibabu .. Petitioner And State of A.P Rep.by Public Prosecutor .. Respondent HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NOs. 808 AND 1110 OF 2001 COMMON JUDGMENT: These two criminal appeals are filed by A.1 and A6, directed against the judgment dated 08.06.2001 passed by the Assistant Sessions Judge, Narsipatnam in S.C.No.138 of 2000, whereby and whereunder the appellants-A1 and A6 were convicted for the offences punishable under Section 307 IPC and sentenced to undergo rigorous imprisonment for a period of eight years each and also to pay a fine of Rs.500/- each for the offence punishable under Section 307 IPC, in default of payment of fine amount both the accused further sentenced to undergo simple imprisonment for a period of two years. Heard Sri C.Vasundhara Reddy, learned counsel appearing for the appellants and the learned Public Prosecutor appearing for the State. In all six accused were tried for the offences punishable under Section 307 read with 34 IPC. Ultimately, A2 to A5 were acquitted by the learned trial Court and A1 and A6 who are the appellants herein were convicted for the offence punishable under Section 307 IPC and were imposed punishment as mentioned above. Challenging the said order of conviction and sentence the appellants (A1 in Crl.A.No.1110 of 2001 and A.6 in Crl.A.No.808 of 2001) filed the present appeal. The prosecution in order to establish the guilt of the appellants and other accused before the trial Court, examined PWs.1 to 7, marked Exs.P.1 to P.16 and MOs1 to 9. No evidence was adduced on behalf of the accused. The learned trial Court on consideration of entire material on record acquitted A2 to A5 and convicted A1 andA6 for the offence punishable under Section 307 read with 34 IPC and sentenced to imprisonment as mentioned above. The prosecution case is like this: The marriage of one Jyothi (LW5), who is the sister’s daughter of PW.2-Malleshwara Rao was performed with the first appellant-A1 in February, 1999. 20 days after performance of the marriage, misunderstandings arose between the A1 and Jyothi as well as the family members of A1 in regard to the payment of dowry amount and other articles which lead to the separation of the couple and thereafter A1 was living in Kothakota, whereas his wife-LW.5 was living in Tatipale Village. It is said that the appellants and the other accused were suspecting that PW.2 had illicit intimacy with LW.5-Jyothi and on account of the same the disputes were not settled between the spouses. In this back drop, the family members of LW.5-Jyothi developed grudge against PW.2. While so, on 10.05.1999 night PW.2 and his wife-PW.1 after having dinner slept on a cot in the back yard of the house, at about 2.15 AM the appellants and the other accused came there with acid tin, A2 caught hold of the legs of PW.2, A3 caught hold of his hands, A1 and A6 poured acid on her. PW.2 woke up, raised cries and caught hold of the hand of A1, and they also poured acid on PW.1-Kantham and thereafter all the accused fled away from the place of occurrence. On hearing the cries of PWs.1 and 2, the neighbours came there and found them with injuries and shifted them to Government Hospital, Narsipatnam. Some of the neighbours were examined as witnesses. On receipt of medical intimation sent by PW.4-medical officer, PW.7- S.I of police, Makavarapalem Police Station rushed to the hospital, recorded the statement of PW.1 and later that of PW.2 and investigated into the offence and filed charge sheet. The evidence basing on which the learned trial Court recorded conviction against the appellants-A1 and A6 is mainly that of PWs.1 and 2, who are injured and PW.4-doctor, who examined them and wound certificate. PW.3 is a witness who arrived at the place of occurrence only after hearing the cries of PWs.1 and 2 and she is not a direct witness to the incident and her evidence is based on what all stated by PWs.1 and 2. Now the point for determination in these appeals is whether the order of conviction and sentence passed against A1 and A5 by the trial Court can be sustained. PWs.1 and 2 have spoken to the fact of the differences between A1 and his wife-Jyothi (LW5), their separation, and the family members of the accused developing grudge against PW.2 on the ground that he was responsible for the differences between the spouses. PW.1 deposed in her evidence that she and her husband was sleeping on a cot covering themselves with a woolen blanket, acid was poured on them, they woke up, they raised crises and PW2 caught hold of the hand of A1. She also found two persons sitting on the sluice situated nearby the house. In the chief examination itself she gave contradictory version that four persons including A1 was present at the cot and they are A4 to A6 and A1. Whereas, PW.2 stated in his evidence that at about 2.00 AM on 10.05.1999 while he and PW.1 were sleeping on the cot on the backyard of their house, A1 and A6 came there and opened the rug, A2 caught hold of his legs, A3 caught hold of his hands, A4 and A5 were standing on the sluice situated near his house. He also deposed that A1 and A6 poured acid against him, when he raised cries PW1 woke up and then A1 and A6 also poured acid on PW.1 and both of them sustained burn injuries on various parts of their body. PW.4-R.Susheela, who examined PEWs.1 and 2 noticed the following injuries: PW.1 injuries: 1. Deep burns of the face and neck 8% 2. Deep burns of the part of the chest and abdomen 5% 3. Deep burns of the right upper arm 6% 4. Deep burns of the right thigh and part of the right leg 8% 5. Deep burns of the part of back of chest 2%. PW.2 injuries: 1. Deep burns of the face and neck 9% 2. Deep burns of the front of the chest and abdomen 18% 3. Deep burns of part of left upper limb 4% 4. Deep burns of part of right upper limb 2% 5. Deep burns of part of right thigh 3% 6. Deep burns of back of the chest 16% She issued Ex.P.2 and P.3-wound certificates. Perusal of Ex.P.1- statement of PW.1 recorded basing on which the first information report-Ex.P.13 is registered reveals PW.1 stated therein that she saw A1 pouring acid on her and PW.2 and some other persons were also present near him and subsequently the accused and the remaining persons fled away. She did not speak about the presence of A6 at all in her statement made to PW.7. The learned trial Court acquitted A2 to A5, but convicted A1 and A6. The learned trial Court appears to have been led away by the evidence of PWs.1 and 2 given during the trial about participation of A6. The learned counsel appearing for the appellants would submit that the incident occurred during night time and there was no possibility for PWs.1 and 2 for identifying the assailants. This contention cannot be acceded to for the reason that it is in the evidence of PWs.1 and 2 that there is a streetlight which was glowing at relevant point of time and could identify the assailants. Even otherwise A1 and A6 are the persons known to PWs.1 and 2 and even in the absence of any such streetlight it is not much difficult for them to identify the assailants. However, if we examine the evidence of PWs.1 and 2 before the Court, it would appear that except as to the participation of A6, the entire version is totally improved and it consists of material inconsistencies and discrepancies. The learned trial court rightly discarded the evidence of PWs.1 and 2 insofar as A2 to A5 are concerned, but without assigning any convincing reason convicted A6 basing on the same evidence. It has to be noticed that PW.1 stated in her evidence that A6 is known to her by name. If really she saw A1 and A6 pouring acid, it could not have been much difficult for her to identify A6 also and in such an event, she should have mentioned the name of A6 also in the first information report (her statement recorded by PW.7 in the hospital). Therefore, in my considered view, the learned trial Court is not justified in recording conviction against A6 and the conviction and sentence passed against A6 are liable to be set aside in Crl.A.No. 808 of 2001. As regards A1, from the evidence available on record the commission of offence of pouring acid on PWs.1 and 2 has been proved beyond reasonable doubt by the prosecution and the trial Court rightly convicted A1. However, from the evidence of PWs.1 and 2, it cannot be inferred that A1 poured acid over them with an intention to kill them. PW.6-doctor, who examined PWs.1 and 2 opined that the injuries received by PWs.1 and 2 are grievous in nature. The conviction ought to have been under Section 326 IPC. Therefore, the conviction recorded by the learned trial Court for the offence punishable under Section 307 IPC against A1 is altered to one under Section 326 IPC. As regards the sentence, taking into consideration the fact that the offence took place a decade ago and considering the mental condition of A1 on account of separation with his wife (LW5) and viewing that A1 might have committed the offence while in a disparate condition, the sentence of rigorous imprisonment of eight years passed by the trial Court is reduced to rigorous imprisonment of three years while maintaining the fine amount imposed by the trial Court. In the result, Crl.A.No.808 of 2001 is allowed. The conviction and sentence passed against the appellant/A-6 in Crl.A.No.808 of 2001/A6 is set aside and he is acquitted for the offence punishable under Section 307 IPC and the fine amount, if any, paid shall be refunded to him. In the result, the Criminal Appeal No.1110 of 2001 is partly allowed. The conviction recorded against the appellant/A-1 in Cr.A.No.1110 of 2001 is modified from Section 307 IPC to 326 IPC and the sentence of rigorous imprisonment is reduced to three years from eight years while confirming the fine amount imposed by the trial Court. The period of detention, if any, which the appellant had undergone shall be given set off. ___________________ R.KANTHA RAO,J Dated: 29.07.2010 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NOs. 808 AND 1110 OF 2001 DATED: 29.07.2010