State vs Karthik Mahadevappa

N. Ananda, J.—The State has filed this appeal against the judgment, of acquittal of Respondent (hereinafter referred to as ''accused'') for offences punishable under Sections 458 and 326 IPC in Criminal Appeal No. 49/2004 dated 07.04.2006, on the file of III Addl. Sessions Judge at Mysore. The learned I-appellate Judge has reversed the judgment of conviction made in C.C. No. 4158/1995, on the file of III Addl. Civil Judge (Sr. Dn.) and C.J.M. at Mysore.

We have heard Sri H.S. Chandramouli learned State Public Prosecutor for Stale and Sri Sanjay A. Patil, learned Counsel for accused, We have been taken through evidence and judgments of the courts below.

The case of prosecution in brief and the findings of the courts below are as follows:

Kumari Shalini (PW2) is the eldest of the two daughters of PW1-K.S. Suresh Babu and PW3-Shamala. During the year 1993-94, PW2 was studying In IX Standard in DMS School at Mysore. PW1 was working as the Superintendent, of Police at Mysore and later he was working as the Director of Police Academy at Mysore. PW1 to PW3 were staying in the official quarters of PW1 in Jalapuri at Mysore. The accused was also a student of DMS School at Mysore. The accused was one year senior to PW2-Shalini During the year 1993-94. PW2-Shalini was studying in IX Standard and, accused was studying in X Standard. The accused was enamoured by the beauty of PW2-Shalini. The accused had made frantic attempts to win her heart, but his attempts were (sic) PW2-Shalini did not respond to the attempts made by the accused. PW2-Shalini had rebuked the accused by calling him as ''stupid'' when he had made phone calls to her to know her date of birth. PW2-Shalini had bluntly refused to give her autograph to accused during the end of academic year of 1993-94. Therefore, the accused developed hatred and ill-will against PW2-Shalini.

The accused after completing SSLC joined I Year PUC in JSS College, even thereafter he continued, to haunt PW2-Shalini by regularly going to DMS School, but there

was no response from PW2 which perpetuated the hatred and ill-will developed by the accused. The accused had felt that PW2 was very proud of her beauty. Therefore, the accused decided to wreck, vengeance against her.

During the intervening night, of 3/4.09.1994 accused lurked house-trespass by night after preparation for causing hurt to PW2-Shalini, however she woke up and warded off accused by assaulting nun with her elbow joint. However, PW2-Shalini could not make out that it was the accused. PW2-Shalini woke up her parents they made frantic search but they were not able to know the person who had lurked into their house PW1 noticed the person who had lurked into their house had brought a pen torch, a bottle of chloroform and a plastic water jet. PW 1 orally informed the incident to the Station House Officer of Devaraja Police. But the report was not probed.

Oil 05.09.1994 at about 7.30 p.m.. when PW2-Shalini was returning to her house, after meeting her friend namely Anureethi some stranger hiding in a bush by the side of road suddenly sprung and splashed acid on her face and body, PW2 rised hue and cry, PW3-Shamala, PW7-Devamma, Anureethi (friend of PW2) and her father Chikkerur rushed to the place and found that acid had been splashed on PW2 and she was suffering from severe pain and burning sensation. They look PW2 to PW20-Dr. Leela Prasad, who on examination of PW2 had found that she had suffered burn injuries. As advised by PW20-Dr. Leela Prasad. PW2 was shifted and admitted in B.M. Hospital at. Mysore. After receiving MLC intimation from B.M. Hospital, PW29-Mahadevaiah, Police Inspector of jurisdictional police station visited B.M. Hospital to record the statement of PW2-Shalini, but he could not record her statement as she was in a state of shock and suffering from miserable pain.

On the following day, i.e., on 06.09.1994 at about 11 a.m., PW1 K.S. Suresh Babu lodged first information as per Ex.P. 1, against an Unknown person PW29 registered Crime No. 194/1994 against an unknown person for an offence punishable u/s 326 IPC and prepared first information and submitted the same to jurisdictional Magistrate. The investigating Officer visited, the place of incident and also seized clothes of PW2 Shalini, which had acid burn marks. On 20.09.1994, PW1 produced a pen torch (M.O.1), a bottle (M.O.2) and a plastic water jet (M.O.3), which were found in his house after the incident of lurking house-trespass during midnight of 3/4.09.1994. The investigating Officer recorded statements of several students of D.M.S. School and suspected involvement of accused-Karthik. The accused was arrested. On the information volunteered by accused, incriminating articles such as a lid, an empty bottle and clothes of accused, which had acid burn marks, were recovered. The test identification parade was held, wherein PW2 identified the accused by his voice. The incriminating, articles were sent to Forensic Science Laboratory. On receipt, of FSL report, charge sheet was submitted, against the accused. The accused was tried for offences punishable under Sections 458 and 326 IPC.

During trial, prosecution examined PW1 to PW32 and produced documents as per Ex.P. 1 to Ex.P.22 and material objects as per M.O.1 to M.O.13.

The learned trial Judge accepting the evidence adduced by prosecution, convicted the accused for offences punishable u/s 458 and 328 IPC.

The learned trial Judge accepted the evidence, of prosecution in proof of the following:

I. The accused had motive, to commit the offence.

II. The. accused had made preparations to commit the offence.

III. The conduct of accused before and subsequent, to the incident of acid attack was not consistent with the conduct of an innocent person.

IV. The information volunteered by accused led to recovery of incriminating articles viz a lid, an empty bottle of acid, clothes of accused having acid burn marks.

The learned trial Judge accepting the evidence adduced by prosecution has held that accused, had procured acid from J.C. Engineering College, Mysore, wherein the father of accused was working as the Professor and Head of the Department of Chemistry. The learned trial Judge accepted the evidence of PW2 relating to test identification parade held by the Tahsildar and identification of accused by his voice.

The learned I-appellate Judge has assigned the following reasons to reverse the judgment of conviction:

I. In the first information, age of culprit is shown as 40-50 years.

II. The conduct of PW1 in not taking, any action for lurking house-trespass committed during night of 03/04.09.1994.

III. The evidence of PW2 relating to identification of accused by his voice in the test identification parade is not credible.

IV. The evidence in proof of recovery of incriminating articles on the information volunteered by accused, does not inspire confidence.

V. The evidence adduced by prosecution in proof of motive lacks credibility.

VI. The Investigation was influenced by the fact, that PW2 is the daughter of a high, ranking Police Officer.

Therefore, the learned I-appellate Judge reversed the judgment of conviction.

As the findings recorded by the I-appellate court are contrary to the findings recorded by the trial court, we have to re-appreciate the entire evidence to record a finding on, guilt or otherwise of accused.

The first circumstance put forth by prosecution is motive. It is not in dispute that accused and PW2-Shalini were studying in DMS School and accused was one year senior to PW2-Shalini.

The evidence of PW2-Shalini and her mother (PW3) would reveal that PW2 was receiving some mischievous phone calls to the telephone of their house.

PW2-Shalini has deposed; accused and others used to sit near entrance of the school and PW2 had seen them; accused and his friends used to watch PW2 and other classmates, schoolmates playing volleyball, throw ball and they used to clap; PW2 was receiving mischievous phone calls; caller used to speak in a female voice and used to mention the name of friends of PW2 whenever mother of PW2 (PW3) attended the calls and when receiver was given to PW2, she was hearing the voice of a boy; PW2 used to immediately put down receiver; PW2 had received such calls on many occasions; one day PW2 received a phone call and the caller told PW2 that his name-was Karthik and he wanted to know her date of birth; PW2 refused to give her date of birth by saying that he had nothing to do with her date of birth and called him ''stupid'' and put down the receiver. Thereafter she did not receive mischievous calls. PW2 recognised the voice of accused; PW2 had heard his voice in school and when she had received mischievous phone calls.

PW11-Bharath Ram Rai has deposed; he was studying in IX Standard in DMS School, at that time accused was studying in X Standard; PW2-Shalini was studying in ''B'' section and she was a beautiful girl; during the end of academic year 1993-94 (during March 1994), accused requested PW11 to get the autograph of PW2; PW11 refused; accused scolded PW11 and hit on his face, as a result PW11 suffered bleeding injuries; thereafter accused gave autograph hook to PW14-Umesh, his classmate and asked him to get the autograph of PW2; when PW14 took autograph book and asked PW2 to subscribe her autograph. PW2 refused to subscribe her autograph; therefore, PW14 came back and informed the matter to accused; accused became wild and told that PW2 is very proud of her beauty and she is arrogant; so saying accused took the autograph book from PW14 and tore into pieces. After completing X Standard, accused joined I PUC in JSS College; even thereafter the accused was visiting DMS School to observe the girls.

PW14 Umesha has given evidence, which would substantially corroborate the evidence of PW11. PW14 has deposed; when PW11 refused to get the autograph of PW2, accused became wild and fisted on the face of PW11; thereafter PW14 was asked to get the autograph of PW2; PW14 approached PW2 for her autograph and told her that accused wanted her autograph; PW2 refused to subscribe her autograph; accordingly, PW14 informed the same to accused and accused became wild and informed PW14 that he knew what to do with PW2 and tore autograph book into piece.

During cross-examination, the evidence of PW11 was sought to be discredited on the ground that PW11 had not informed the matter to school authorities regarding incident of assault and reasons for such assault and also for not informing the police.

During cross-examination of PW14, his evidence was sought to be discredited on (he ground that he had not complained about the acts of accused to the Principal of DMS School.

PW11 and PW14 were the friends of accused. They had not taken the matter seriously to complain against accused. Therefore, the lenient attitude of PW11 and PW14 towards accused cannot be a ground to discredit their evidence.

The learned Counsel for accused has submitted that statements of PW11 and PW14 u/s 161 Code of Criminal Procedure were recorded on 09.11.1994 and on 11.11.1994 whereas the incident of acid attack had taken place on 05.09.1994. Therefore, there was inordinate delay in recording the statements of PW11 and PW14. The learned Counsel for accused has also submitted that PW11 and P.W.14 were taken to police station and they were kneed to give their statements u/s 161 Code of Criminal Procedure.

This submission cannot be accepted for the following reasons:

PW11 and PW14 have denied suggestion that they were coerced by police. The first information had been lodged against an unknown person and the crime had been registered against an unknown person. In the first information, PW1 has stated that he had suspected some youngsters, who had access to chemicals been behind the incident. It is also possible that culprit is a relative to a doctor or a student of science, who had access to chemicals. PW1 had not suspected the involvement of accused. The Investigating Officer did not have clue about the culprit. Therefore, the Investigating Officer had to examine several students of DMS School to eliminate their involvement. It is not a case where investigation was proceeding against known, culprit. Therefore, it is not possible to hold that statements of PW11 and PW14 were belatedly recorded to give a definite shape to the case of prosecution or to implicate the accused.

PW9-Prashanth has deposed, he was a schoolmate of accused; the accused was senior to him by one year; accused was teasing girls; PW9 after completing IX Standard left DMS School, and got admitted in Sharada Vilas School; even thereafter PW9 was meeting accused; on a certain day, PW9 had met accused near DMS School : at that time, a girl was getting into a blue colour gypsy : accused told PW9 that girl is the daughter of Superintendent of Police namely Suresh Babu and her name is Shalini; he had fallen in love with her and he wanted to go world with her, PW9 had gone to DMS School to get his cumulative record; at that time, accused told PW9 that he had provided cigarettes and bottles to driver of gypsy that would help him to love Shalini and get closer to her; accused informed PW9 that Shalini used to wish, him, however to the knowledge of PW9, PW2 had not wished the accused on any occasion; after few days, accused came to the house of PW9 and requested PW9 to get new telephone number and address of PW2, PW9 told accused that accused was in love with PW2 and it was his business to get her phone number. PW9 has deposed; accused also approached one Dharmesh and requested the same favour from him : but said Dharmesh did not heed to the request of accused; after few days, accused met PW9 and told him that he was able to secure telephone number of PW2 and he used to call upon her in the name of her classmates. During August 1994, PW9 was going to Bangalore. PW9 met accused; accused was not in a good mood; when PW9 questioned, accused; accused told PW9 that he had made a phone call to PW2; PW2 abruptly disconnected telephone and therefore he was not in a good mood; accused had borrowed a sum of Rs. 5/- from PW9 for bus fare : PW9 after returning from Bangalore had gone to the house of accused to get back his walkman : at that time accused informed PW9 that PW2 has been suspended from DMS School : on verification. PW9 learnt that PW2 had not been suspended from school and accused was making mispropaganda against PW2.

During cross-examination, PW9 has denied the suggestion that he had been taken by police and he was coerced by police when his statement was recorded u/s 161 Code of Criminal Procedure and he has deposed against the accused due to pressure exerted by police.

During cross-examination by the learned Counsel for accused, PW9 has deposed that accused had teased one of his teachers by name Mohini and accused had been warned. Thus, we find the accused had also teased one of his teachers regardless of the holy relationship between teachers and students.

The learned Counsel for accused referring to the evidence of PW9 would submit that evidence of PW9 on material, aspects is brought on record as omission. PW9 was frightened by police to give evidence against accused.

On careful consideration of evidence of PW9, we find that PW9 had no grudge or ill-will against accused nor PW9 had any favour to seek from police. Therefore, criticism levelled against evidence of PW9 cannot be accepted.

PW10 Srinivasa was a student of Sharada Vilas School. The house of PW10 was situate near the house of accused, therefore they became friends. PW10 after completing SSLC joined Government Diploma College at Chamarajanagar When accused was studying in DMS School, he had told PW10 that he had fallen in love with PW2.

During cross-examination, PW10 has deposed; he had not informed Others about what, he had learnt from accused. Apart from this, nothing has been elicited to discard the evidence of PW10.

PW12-Deepak was also a student of DMS School and a classmate of accused. PW 12 has deposed; accused was studying in X Standard and PW2 was studying in IX Standard; PW2 was a beautiful girl; accused was praising her hairstyle; accused was teasing her; accused used to go near her to tease her; accused used to visit the ground when she was playing volley ball to encourage her; accused was got himself acquainted with the jeep driver of PW2 to become nearer to PW2; accused used to go to Madhu Video Shop situate near his house to make phone calls to the house of PW2 by taking out the names of classmates of PW2; on a certain day, accused was smoking a cigarette in a shop in front of his house; on enquiry, accused informed PW12 that he was not in good mood; accused told PW12 that when he called PW2, she abused him as ''stupid''; so saying, accused nibbed the cigarette and crushed the cigarette butt under his foot. PW12 has deposed, about unsuccessful attempts made by accused to get autograph of PW2 through PW11-Bharathram Rai. PW12 has deposed about accused assaulting PW11 when he refused to get autograph of PW2. PW12 has deposed about mispropaganda made by accused that PW2 had been, suspended from DMS School. When PW 12 questioned accused as to why he was making mispropaganda against PW2, accused gave evasive answers.

PW14-Umesha was also a classmate of the accused in DMS School; during the year 1993-94, accused and PW14 were studying in DMS School; PW14 has deposed; during March 1994, accused told PW11 to secure autograph of PW2; PW11 refused to do so; accused became wild and assaulted PW11; thereafter, accused sent the autograph book through PW14; PW14 came back and told accused that PW2 refused to subscribe her autograph accused became wild and told that he knew what he should do with PW2 and tore autograph book into pieces.

During cross examination, PW14 has deposed that he was not, acquainted with PW2, but he knew that PW2 was studying, in DMS School and she was junior to him by one year During cross-examination, PW14 has denied suggestion that he had given false evidence to help police.

The learned Counsel for accused referring to the evidence of PW14 would submit that the evidence given by PW14 on material aspects is brought on record as omission.

On careful consideration of evidence of PW14, we do not find any material omissions or contradictions in the evidence of PW14. Therefore, we have no reasons to disbelieve the evidence of PW14.

Thus from the evidence of these witnesses, we find that accused was very much enamored by the beauty of PW2 and he had fallen in love with her. The accused had made attempts to win her heart and accused had made phone calls to her house by taking out names of her friends, but there was no response from PW2. She had refused to subscribe her autograph. She had called the accused as ''stupid'' when he had called on her to get her date of birth. Thereafter, accused developed ill-will and hatred against PW2. Accused had developed a feeling that PW2 was very proud of her beauty and she was a very arrogant girl. The accused became a dejected lover and developed desperate attitude towards PW2. The accused was not only hating PW2, but also he was hating her beauty as he had felt her beauty was the cause for her pride which had snubbed the attempts made by accused to win her heart and become close to her.

The prosecution has relied on the circumstance of preparations made by accused to commit the offence.

The evidence adduced by prosecution that accused is the son of Mahadevappa, who was then working as the Professor and the Head of the Department of Chemistry in J.C. Engineering College at Mysore has not been disputed. It is the case of prosecution that accused had secured acid with the help of PW16-Srinivasa, who was then working as an attender in the Chemistry Department of J.C. Engineering College at Mysore.

In a decision reported in Shivaji Genu Mohite Vs. The State of Maharashtra, the Supreme Court has held:

Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case.

PW16-Srinivasa has deposed; he knew accused; the father of accused namely Mahadevappa was the head of the department of Chemistry in. J.C. Engineering College at Mysore; accused had not approached him to procure acid from the laboratory, however the father of accused had taken. 100 ml. of sulphuric acid and hydrochloric acid to his house, but he was not aware of the purpose for which he had taken aforesaid quantity of acid to his house.

PW16 was declared as a hostile witness for resiling from his statement recorded u/s 161 Code of Criminal Procedure PW16 has deposed that he has given statement u/s 161 Code of Criminal Procedure marked as Ex. P.2, as he had been frightened by the police.

During, cross examination by the learned Public Prosecutor, PW16 has admitted that he knows reading and writing Kannada. PW16 has admitted that a slip pasted on M.O.8 indicating the words "sulphuric acid 98%" are in his handwriting. However, PW16 has tried to explain his evidence by stating that the police had forced him to write the words "sulphuric acid 98%" on the slip pasted to bottle marked as M.O.8.

During cross-examination by learned Counsel for accused, it is not brought on evidence that slip pasted to M.O.8 had been recently pasted or writing found on the slip pasted to M.O.8 was of recent origin. PW 16 has not denied M.O.8 (empty acid bottle) was not that of J.C. Engineering College.

It is obvious from the evidence of PW16 that accused had procured acid from laboratory of Chemistry Department of J.C. Engineering College through PW16. PW16 in order to help the accused and to cover up illegal acts committed by PW16 has come out with a story that father of accused had taken acid to his house. When confronted with the slip pasted on M.O.8, PW16 has tried to wriggle out of situation by deposing that he had written words "Sulphuric acid 98%" on the slip pasted to M.O.8 due to pressure exerted by police. Even otherwise from the evidence of PW16 that the father of accused had taken sulphuric acid and hydrochloric acid of 100 ml. to his house, we can safely infer that aforestated quantity of acid was available to accused.

The evidence adduced by prosecution, regarding recovery of M.O.8 will be discussed in a later part of this judgment.

The evidence adduced by the prosecution in proof of the conduct of accused before the incident would reflect state of his mind. The efforts made by accused to win the heart of PW2 were futile. He became a dejected lover and developed hatred and ill-will against PW2 and her beauty.

The accused was stodying in I Year PUC. The conduct of accused procuring sulphuric acid and hydrochloric acid through PW16 would reflect the conduct of accused. The accused has not explained the purpose for which he had procured acid from PW16.

Now adverting to the incident of acid attack, we have the evidence of PW2 (victim of acid attack) and the evidence of post-occurrence witnesses and the medical evidence.

The defence has not disputed that on 05.09.1994 at 7.30 p.m., acid was splashed on PW2 and she had suffered burn injuries. The medical evidence relating to this aspect is given by PW26-Pundareeka Herale.

PW26-Dr.Pundareeka Herale has deposed; on 05.09.1994 at about. 8 p.m., a girl by name Shalini aged about 14 years was brought to B.M. Hospital; she had suffered acid burn injuries on her face; neck, back of her neck, on her hands and on her eye lids and eye lashes. PW2 was. admitted in B.M. Hospital : PW2 was treated till 02.11.1994; thereafter she was, taking treatment as an outpatient for a period of two months. The evidence of PW26 has not been controverted.

PW24 Dr. Rajagopala Rao V.L. was also working as doctor in B.M. Hospital at Mysore. The evidence of PW24 is more or less similar to evidence of PW26. Ex.P.6 is the wound certificate issued by PW24.

PW24 has deposed; injuries suffered on the face of PW2 were permanent in nature; there was disfiguration of face of PW2. PW24 has deposed that when injured was brought to the hospital, she was accompanied by her parents; they did not give history of injuries.

The evidence given by PW1 and PW2 and immediate treatment given to PW2 by PW26 and PW24 in B.M. Hospital does not suffer from any discrepancies.

The learned Counsel, for accused referring to the contents of first information lodged by PW1 would submit that there was inordinate delay in lodging first information. In the first information, age of culprit is shown as 40-50 years. Therefore, the evidence of PW1 is not credible and consistent. The implication of accused is an after thought.

PW1-K.S. Suresh Babu has deposed that immediately after acid attack, his daughter had suffered injuries to her mouth, she was not able to speak, she could hardly speak, therefore, he had misheard the age of culprit as 40-50 years instead of 14-15 years.

The wound certificate and the medical, evidence given by; PW26 and PW24 would clearly indicate that condition of PW2 after acid attack was miserable : she was suffering from pain. The Investigating Officer was not allowed to record the statement of PW2 as she was not in a condition to give her statement. Therefore, on the basis of first information lodged by PW1, the evidence of PW1 cannot be discredited. PW2-Shalini, the daughter of PW1 was the victim of acid attack. In the circumstances, it was but natural that PW1 had given more attention to provide treatment to PW2 in hospital than to give a complaint to police. Therefore, delay in lodging first information cannot be a ground to discard the evidence of PW1. It cannot be a ground to hold that accused was falsely implicated. Above all, in the first information; PW1 had not given the name of culprit. PW1 had not even, suspected the involvement of accused in the crime. In the circumstances, it cannot be said that first information was concocted to falsely implicate the accused.

The evidence of PW2 discloses that the incident of acid attack took place under the cover of darkness, the culprit had covered his lace with a monkey cap. However, PW2 has. deposed that before acid was splashed on her face, culprit cried as "yee oho". PW2 has deposed about test identification parade conducted by PW25-H.D. Chandrashekar, the then Taluka Executive Magistrate of Mysore Taluk PW2 has deposed that she was able to identify the accused by his voice.

Ex.P.9 is the contemporaneous record prepared by PW25, which disc-loses at the time of test identification parade, accused along with other persons were lined up and they were not visible to PW2. PW2 identified the accused by his voice.

The evidence of PW2 explicitly makes it clear that there was no interference by the police in the test identification parade conducted by PW25. PW25 had submitted, a report that PW2 had identified accused by his voice.

The learned Counsel for accused would submit that accused was known to PW2. PW2 had read in newspaper about the arrest, of accused before test identification parade was held. Therefore, evidence of PW2 regarding identification of accused by voice is feeble.

The prosecution has adduced evidence to prove that PW2 had seen the accused near her school. PW2 had heard the voice of accused when he had spoken to her over telephone, asking her date of birth. The prosecution has laid emphasis on the evidence of PW2 regarding identification of accused by his voice and not on the identification of accused by his physical Features.

In a decision reported in Kirpal Singh Vs. State of Uttar Pradesh, the Supreme Court has held:

(4) It is true that the evidence about identification of a person, by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person, recognised may be somewhat risky in a criminal trial. But the Appellant was intimately known to Rakkha Singh and for more than a fortnight, before the date of the offence he had met the Appellant on several occasions in connection with the dispute the sugarcane crop, Rakkha Singh had heard the Appellant and his brothers calling Karam Singh to come out of the hut and had also heard the Appellant, as a prelude to the shooting referring to the dispute about sugarcane. In the examination-in-chief Rakkha Singh has deposed as if he had seen the actual assault by the Appellant, but in cross-examination he stated that he had not seen the face of the assailant of Karam Singh. He asserted however that, he was able to recognize the Appellant and his two brothers from their ''gait and voice''. It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the Appellant and accepted the testimony.

In the ease on hand, accused was known to PW2. PW2 had seen the accused and had heard his voice on several occasions. PW2 had also heard voice of culprit before acid was splashed on her. In the circumstances, there are no reasons to disbelieve the evidence of PW2 that she identified the accused, by his voice. Above all, neither PW2 nor her parents bore grudge or ill-will against accused to falsely implicate him.

The prosecution, has relied on evidence of seizure of incriminating articles on the information volunteered by accused and also on evidence of PW29 regarding FSL report.

PW31.-K.S. Thimmaiah, the Investigating Officer has deposed; on 12.10.1994, he took-up further investigation of case from PW29-Mahadevaiah, the then Inspector of Nazarbad Police Station at Mysore.

PW31. has deposed; he suspected involvement of Karthik (accused) in commission of offence, he deputed PC-75 Gangadhareshwara and PC-1540 Omprakash to trace the accused and produce before him; on 05.12.1994 at 4 p.m., the said police constables produced the accused before PW31 : PW31 arrested the accused. PW31 has deposed; accused gave a voluntary statement (relevant and admissible portion of this statement is marked as Ex.P.21). PW31 secured panchas to the place of incident. The accused led the Investigating Officer and the panchas to a fence near, the place of incident and removed a. plastic lid from a bush. That plastic lid had pungent smell, and it was seized under a mahazar as per Ex.P. 11. The accused searched in the fence and removed a brown coloured bottle. The bottle was 4 inches in height and had circumference of 4� inches. On that bottle, there was a white label containing the words "concentrated (sic) acid" in English and the same was seized under a mahazar as per Ex.P. 11. Thereafter, accused led the Investigating Officer and panchas to his house at Saraswathipuram and took them to his room in upstairs and produced one cotton check shirt, one lungi and one monkey cap; there were dark, holes and burn, marks on the clothes. The Investigating Officer, seized the same under a mahazar as per Ex.P. 12. The accused had shown Luna bearing No. KA-09-H-4638. The headlight and footrest of Luna, were damaged. The Luna was seized under a mahazar as per Ex.P. 12. The incriminating articles were separately packed and sealed. On 09.12.1994, PW31 sent the Incriminating articles to Forensic Science Laboratory.

PW27-Narayana Singh has deposed : he had attested Ex.P, 11 to Ex.P. 13, which, were, prepared near J.C.O. quarters in the year 1994; at that time, police seized a torch, a bottle lid, a Luna, a monkey cap, a lungi and a shirt. PW27 has given vague evidence regarding seizure of incriminating articles on the information volunteered by accused.

The learned Counsel for accused would submit that reliance cannot be placed on the investigation made by PW31, who was interested in the success of prosecution, more particularly whet, the victim is the daughter of a high ranking police officer.

It is true that evidence given by PW27 is vague, however, that cannot be a ground to discard the evidence of PW31 Investigating Officer. The accused was arrested on 05.12.1994. The accused gave a voluntary statement on the same day. Pursuant to voluntary statement given by accused, the incriminating articles were recovered on 05.12.1994. If PW1 by misusing the position held by him ever wanted to implicate the accused, he would have directed the Investigating Officer to proceed against the accused forthwith. The incident of acid attack took place 05.09.1994. The Investigating Officer arrested the accused on 05.12.1994, which would ensure neither PW1 nor the Investigating Officer was zealous to implicate the accused. If PW1 and the Investigating Officer of wanted to plant incriminating articles to implicate the accused they would not have wailed till 05.12.1994 to arrest the accused. In our considered opinion investigation lad proceeded without being influenced by the position held by PW1. It looks improbable that investigating Officer had planted incriminating articles and had made a farce of recovery to implicate the accused.

PW28-L. Prakash was the Assistant Director of Forensic Science Laboratory at Bangalore. On 05.10.1994, PW28 examined clothes of victim marked as M.O.4 to M.O.7. On examination, PW28 found that there were sulphuric acid marks on these objects. PW28 issued report as per Ex.P. 14.

On 12.12.1994, PW28 examined a lid (M.O.9), a bottle (M.O.8), a. cotton shirt (M.O.11), and a lungi (M.O 12) and, found presence of sulphuric acid burns on these objects. PW28 had issued the report as per Ex.P. 16.

Thus, the prosecution has proved that incriminating articles such as clothes of accused viz a lungi and a shirt had acid burns. The prosecution has proved on the information volunteered by accused, a lid and a. bottle were recovered from a fence near the place of incident.

The prosecution examined PW17-Md. Siddiqui Khan to prove that on the date of incident at 7 p.m., accused was riding a Luna at a high speed on Geetha Mandir Road. However, the prosecution, has not adduced evidence to prove that accused had reached the place of incident from Geetha Mandir. This evidence has no relevance.

The prosecution has relied on the conduct of accused, subsequent to the incident of acid attack. PW9-Prashanth was the classmate of accused in DMS School. PW9 has deposed : on 07.09.1994, he came to know that some one had splashed acid on PW2; they went to DM Hospital to see PW2; the police did not allow them to enter the hospital; thereafter, PW9 had gone to the house of accused; PWS informed the accused that some one had splashed. acid, on PW2; accused told PW9 that, he had gone to hospital and he had seen acid had been splashed on left side of face of PW2; accused told PW9 that some students from J.C. College might have splashed acid on PW2; if the-accused comes to know of them, he would break their limbs; accused'' told PW9 that PW2 was very, proud of her beauty'' the accused justified what, had happened to PW2; on the following day, PW9 and one Dharmesha came near the house of accused, then also accused reiterated that PW2 was very proud of her beauty and she had met with proper consequences; accused had told PW9 that PW2 had met with consequences for being proud of her beauty. The accused had told PW9 that some one had taught a proper lesson to PW2.

During cross-examination, it was suggested to PW9 that he was taken to police station and kept in the police station, for 15 days. PW9 has denied the suggestion. It was suggested to PW9 that he had not seen accused. PW9, has denied the suggestion. It was suggested to PW9 that he was threatened by police to give false evidence against accused.

PW9 has denied the said suggestion.

PW9 has deposed : about details of accused and activities of accused. If PW9 was not a friend of accused, he would not have given the details, of accused and activities of accused in the school. There is nothing, on record to show that PW9 bore grudge or ill-will against accused.

PW12-Deepak has deposed; he was a classmate of accused in DMS School; after the incident, PW12 had met the accused and informed him that some one had splashed, acid on PW2; accused told PW12 "that let it happen, I loved her with great difficulty since she came, but she did not love me and God has given her good punishment".

PW12 was subjected to lengthy cross-examination, however nothing has been brought on record to discredit his evidence. PW12 has denied suggestion that he had given false evidence under the influence of police, PW12 was the classmate of accused. This fact has not been denied by defence. PW12 did not have, grudge or enmity against accused to falsely depose against him.

Thus we find the subsequent conduct of accused and words uttered by him about PW2 would clearly prove that accused was very much happy for what had happened to PW2. The accused did not. feel sorry for the plight of PW2 for acid attack, on the contrary, the accused was very happy. The accused had gone to the extent of saying "God has given her good punishment". The. subsequent conduct of accused would clearly demonstrate his state of mind and he had sense of fulfillment of his cruel mind.

The learned Counsel for accused submits that accused had gone to see PW2 in the hospital. Therefore, the conduct of accused, is consistent with the conduct of an innocent person. The accused had informed PW12 that he had gone to see PW2. The evidence on record does not disclose that accused had visited hospital. On the other hand, the evidence of other classmates of accused would reveal that they were not. allowed to see PW2 in the hospital. Therefore, it is the self-serving statement made by accused.

The learned Counsel for accused would submit that PW1 was a high-ranking police officer. PW31 Investigating Officer was at the command of PW1. The accused was taken to custody one month before 05.12.1994. The witnesses namely PW9 to PW14 had also been detained in the police station. The prosecution witnesses namely PW9 to PW14 had been threatened by the Investigating Officer to give false evidence against accused. Therefore. The prosecution witnesses had deposed against accused due to threats held out by the police. The learned Counsel would submit not only the investigation but also the prosecution was under the influence of PW1.

The learned Counsel for accused would submit that PW1 had punished sub-ordinate police officials, who were working under him and PW1 as the Superintendent of Police had incurred wrath of many persons. Therefore, possibility of one of such persons splashing acid on the face of PW2 to wreck vengeance against PW1 cannot be ruled out.

At the time of incident, the father of accused namely Mahadevappa was the Professor and Head of the Department of Chemistry in J.C. Engineering College at Mysore. If accused had been, detained in police station for a period of one month, his father (Mahadevappa) would not have kept quite without taking action against die police.

The accused when examined u/s 313 Code of Criminal Procedure has not stated that he was arrested one month prior to 05.12.1994 and he had been detained in the police station for a period of one month.

In the discussion made supra, we have held that investigation was not under the influence of PW1. On the other hand, investigation was slow and tardy. The Investigating Officer has examined several students to eliminate the innocent. PW1 to PW3 did not have grudge or ill-will to implicate the accused. If PW1 had evinced any interest in the investigation, accused would not have been allowed to be at large till 05.12.1994. PW31 was working as the Superintendent of Police. At the time of incident, PW31 was the Director of Police Academy at Mysore PW31, was holding a responsible post. If defence had any specific knowledge of persons, who had suffered at the hands of PW1 or about sub-ordinate police officials, who-had,, suffered due to disciplinary action taken by PWI, there should have been reference to specific instanced and names of persons who had been victimised by PW1. Therefore, the oblique motives attributed to PW1 by the defence have no basis.

The prosecution, from the above evidence has proved the following circumstances:

The accused had fallen in love with PW2. The accused had made frantic efforts to win her heart and become close to her. PW2 had rebuked accused. The accused became furious and wild and developed hatred against PW2 and her beauty. The accused had a strong feeling that PW2 was very much proud of her beauty and had determined to teach a proper lesson to her. The accused had procured acid through the assistance of PW16. The accused who was closely observing the movements of PW2 had splashed acid at 7.30 p.m. on 05.09.1994 on PW2 when PW2 was returning to her house from the neighbouring house other friend. After the incident, accused had expressed his happiness for what had happened to PW2. After the arrest accused had given voluntary statement which led to seizure of incriminating articles such as an empty acid bottle, its lid, a T-shirt and a lungi, which bore arid burns. PW2 had identified the accused by his voice in the test identification parade held by PW25. Therefore, we hold that the learned trial Judge was justified in holding the accused guilty of an offence punishable u/s 326 IPC.

The learned Judge of I-appellate court has unnecessarily found fault with the contents of first information and also suspected the conduct of PW1 for delay in lodging first information, without taking into consideration the ground realities after the incident of acid attack and also miserable plight of PW1 and PW3, whose beautiful daughter (PW2) was rendered, ugly for no fault of her. The learned Judge of I-appellate court has lost sight of the fact that PW1 to PW3 did not have grudge against accused to falsely implicate him. The learned Judge of I-appellate court has brushed aside the evidence led by prosecution in proof of the conduct of accused prior and subsequent, to the incident on the ground that no disciplinary action had been initiated against accused by DMS School authorities. The learned Judge of I-appellate court has held that entire investigation was tainted as PW2 is the daughter of a high ranking police officer. The learned Judge of I-appellate court has unnecessarily found fault with evidence of PW2, who did not bear any ill-will or enmity against accused. The learned Judge, of I-appellate court has failed to consider totality of circumstances, the background of occurrence, relative position of accused with reference to PW1 to PW3 The learned Judge of I-appellate court has found fault with the evidence of Investigating Officer by assigning untenable reasons. Therefore finding of I-appellate court that the prosecution has foiled to prove that accused splashed acid on PW2 at 7.30 p.m. on 05.09.1994 near her residence cannot be sustained.

Now adverting to the incident that took place on 3/4.09.1994, we find the prosecution, has adduced evidence to prove possession of chloroform bottle, a pen torch by accused and the source of such, possession. In our considered opinion, this circumstance alone is riot sufficient to hold that accused guilty of lurking house-trespass. PW1 had not given any complaint about the incident of lurking house trespass. He had not taken any-action for the lapse of security. The evidence of PW2 is not of conclusive nature to prove that accused, had committed lurking of house-trespass during the intervening night of 3/4.09.1994. The evidence adduced by prosecution, to prove incident of lurking house-trespass during intervening night of 03/04.09.1994 may lead to a strong suspicion, of involvement of accused, however such suspicion cannot take the place of proof. Therefore, the accused cannot be held guilty of an offence punishable u/s 458 IPC.

In the result, we pass the following:

ORDER

The appeal is accepted in part. The judgment of I-appellate court in Criminal Appeal No. 49/2004, on the file of III Addl. Sessions Judge at Mysore, as it relates to acquittal of accused for an offence punishable u/s 326 IPC is set aside. The judgment of I-appellate court as it relates to acquittal of accused for an offence punishable u/s 458 IPC is confirmed. Therefore, the judgment of trial court made in C.C. No. 4158/1995 on the file of III Additional Senior Civil Judge and Chief Judicial Magistrate at Mysore as it relates to conviction and sentence of the accused for an offence punishable u/s 326 IPC is confirmed and restored. The learned trial Judge shall secure the accused to implement the sentence for an offence punishable u/s 326 IPC. Office is directed to send back records along with a copy of this judgment.