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Sasidharan Nambiar,J.

Appellants are accused 1 and 3 in S.C.622/2005 on the file of Additional Sessions Court, Thalassery. They were convicted and sentenced to imprisonment for life and fine of Rs.10,000/- and in default simple imprisonment for six months for the offence under Section 302 and rigorous imprisonment for three years and a fine of Rs.3,000/- and in default simple imprisonment for one month each for the offence under Section 452 and simple imprisonment for one month each for the offence under Section 341 and rigorous imprisonment for one year each for the offence under Section 324 of Indian Penal Code. Accused 2 and 4 who were convicted and sentenced only for the offences under Sections 452, 341 and 324 of Indian Penal Code, did not file an appeal. The prosecution case is that on 25/12/2001 at about 9 p.m the four accused in furtherance of their common intention trespassed into house No.AP-IX-389 of 110 colony at Chathirur of Aralam village and wrongfully restrained deceased Meenakshi, when deceased Meenakshi along with PW4 got into the house. It is the case that the accused threw stones at them when Meenakshi objected the accused consuming liquor in front of their house. Then Meenakshi got into the house. The accused in furtherance of their common intention poured kerosene on the body of Meenakshi and set fire and caused her death. They also inflicted injuries on Pws.1 and 8, by throwing stones at them and thereby committed the offences under Sections 452, 341, 324 and 302 read with Section 34 of Indian Penal Code. According to the prosecution after the accused set fire on deceased Meenakshi, PW1 Sujatha her sister poured water and changed the dresses worn by Meenakshi. Meenakshi sustained severe burns. She was immediately taken to Government Hospital, Kannur from where PW11 Dr.Vinod Kumar examined Meenakshi and prepared Ext.P7 wound certificate and admitted her as an inpatient. PW11 also examined PW1 Sujatha and prepared Ext.P6 wound certificate. PW11 also examined PW8 Madhu and prepared Ext.P5 wound certificate. PW1 furnished Ext.P1 FI statement, recorded by PW5 the head Constable, who reached General Hospital on getting information. Based on Ext.P1 FI statement, PW6 Assistant Sub Inspector prepared Ext.P1(a) FIR and registered crime No.125/2001 of Aralam police station for the offences under Sections 452, 341, 324 and 307 read with Section 34 of Indian Penal Code. While Meenakshi was undergoing treatment as an inpatient, on the requisition submitted by the police, PW12 Smt.Mridula, Judicial First Class Magistrate-II, Kannur recorded Ext.P9 dying declaration, after getting the fitness of Meenakshi to give dying declaration certified by Dr.Deepa. Meenakshi succumbed to injuries on 2/1/2002. The offence was therefore, altered to Section 302 of Indian Penal Code. PW13 Sub Inspector of Police prepared Ext.P4 scene mahazar and arrested the accused and produced them before the Magistrate. After incorporation of the offence under Section 302 of Indian Penal Code, PW14 Dy.S.P conducted inquest and prepared Ext.P15 inquest report and continued the investigation. MO.1 can allegedly used for pouring kerosene on the body of Meenakshi, MO.2 piece of churidar, MO.3 match box, MO.4 match sticks, MO.5 stone and Mo.6 hairs were recovered and produced in Court. Dr.Mohammed Musthaque who was not available for examination, conducted autopsy on 3/1/2012 and prepared Ext.P8 postmortem certificate stating that death was caused due to burns sustained by Meenakshi. Ext.P16 forwarding note was submitted to sent the material objects to chemical examiner's laboratory and obtained Ext.P17 report. After completing the investigation PW16 laid the charge before Judicial First Class Magistrate, Mattannur who committed the case to the Sessions Court, Thalassery. Learned Sessions Judge made over the case to Additional Sessions Court for trial. When learned Sessions Judge framed charges for the offences under Sections 452, 341, 324 and 302 read with Section 34 of Indian Penal Code, all the accused pleaded not guilty. The prosecution examined 6 witnesses and marked 18 exhibits and identified six material objects. After closing the prosecution evidence accused were questioned under Section 313 of Code of Criminal Procedure. The accused denied all the incriminating evidence put to them and contended that they are innocent. Learned Sessions Judge though called upon the accused to enter on their defence and adduce defence evidence, they did not adduce any evidence. Learned Additional Sessions Judge based on the evidence found accused 1 and 3 guilty of the offence under Section 302 read with Section 34 of Indian Penal Code and all the accused guilty of the offences under Sections 452, 341 and 324 read with Section 34 of Indian Penal Code. After hearing the accused they were sentenced as stated earlier. The conviction and sentence are challenged by accused 1 and 3 in this appeal.

4. Learned Public Prosecutor submitted that even in the remand report it was specifically stated that the first accused is known as Kumaran and therefore, the disclosure in Ext.P9 that Kumaran poured kerosene and set fire, will not go against the prosecution case, as the first accused is known as Kumaran. Learned Public Prosecutor argued that evidence of PW11 shows that name of one of the assailants mentioned in Exts.P5 to P7 is Kannan and not Kumaran and in such circumstances, based on Ext.P9, appellants are not entitled to contend that, they are not involved in the incident. Learned Public Prosecutor also argued that evidence of PW11 shows that Meenakshi was under sedation and not capable of giving rational answers and in such circumstances, her statement in Ext.P9 cannot be given much weight as against the evidence of PW1, PW4 and PW7. Learned Public prosecutor also argued that there is no material contradiction in the evidence of PW1, PW4 and PW8 and considering the fact that they belong to Paniya community and rustic illiterate witnesses, the minor contradictions cannot be taken as a ground to disbelieve their evidence and learned Sessions Judge rightly appreciated the evidence and found that first accused poured kerosene and set fire on deceased Meenakshi and caused her death and therefore, conviction of the appellants for the offence under Section 302 of Indian Penal Code is perfectly correct. Learned Public Prosecutor also submitted that the evidence of Pws.1,4 and 7 establish that the accused were consuming liquor in front of the house of Pws.1,4, 7 and Meenakshi on the night of 25/12/2001 and when Meenakshi objected to it, they pelted stones and caused hurt to PW1, evidenced by Ext.P6 wound certificate and also to PW8 Madhu who reached there, evidenced by Ext.P5 wound certificate, and in such circumstances, conviction of the appellants for the offence under Sections 452, 341 and 324 read with Section 34 of Indian Penal Code is also perfectly correct and warrants no interference.

9. Evidence of PW1, PW4 and PW7 establish that on the night of 25/12/2001 they were sitting on the varandha of their house, in 110 colony. Accused started consuming liquor in front of their house. It was objected to by Meenakshi. Though PW1, PW4 and PW7 were cross examined on this aspect, we find no material contradictions in their evidence. Their evidence that accused then started pelting stones on Meenakshi and others, is also trust worthy and reliable. Exts.P5 to P7 wound certificates with the evidence of PW11 corroborates the evidence of Pws.1,4 and 7 that appellants along with the remaining accused trespassed into the house. But their evidence that first accused poured kerosene on the deceased and third accused set fire by lighting a match stick is not trustworthy, in the light of the statement of Meenakshi in Ext.P9. On the evidence we find no reason to disbelieve the evidence of PW1, PW4 and PW7 that appellants committed house trespass on that night. The evidence establish that appellants committed the offences under Sections 452 and 324 read with Section 34 of Indian Penal Code. As there is no acceptable evidence to prove that appellants wrongfully restrained Meenakshi or poured kerosene on her and set fire, the conviction of the appellants for the offence under Section 302 read with Section 34 and Section 341 read with Section 34 of Indian Penal Code, cannot be sustained. Appellants can only be convicted for the offences under Sections 452 and 324 read with Section 34 of Indian Penal Code.

10. Then the question is regarding the sentence. Learned Sessions Judge sentenced appellants for the said offence to rigorous imprisonment for three years and one year respectively and a fine of Rs.3,000/- and in default rigorous imprisonment for one month. We find no reason to interfere with the sentence also.

Appeal is allowed in part. Conviction and sentence of the appellants for the offences under Sections 302 read with Section 34 and 341 read with Section 34 of Indian Penal Code by Additional Sessions Judge, Thalssery in S.C.622/2005 is set aside. They are acquitted of the offences. Their conviction and sentence for the offences under Sections 452 read with Section 34 and 324 read with Section 34 of Indian Penal Code is confirmed. If the period of imprisonment for the said offences is already over and the fine is also paid, appellants shall be released from prison forthwith.