CRIMINAL APPEAL 61/1987 on 31 March 1989

Judgment

Judgement Reserved on: :25/03/2025Judgement Pronounced on: :09/04/2025

These criminal appeals are directed against the judgmentdated 31.03.1989 passed by the learned Additional SessionsJudge No.5, Jaipur City, Jaipur (for brevity, “learned trial Court”) inCriminal (Sessions) Case No.61/1987 whereby, while convictingthe accused-appellant (for brevity, “appellant”) under Section 326IPC, he has been sentenced as under:

“Two years and six months’ rigorous imprisonment andRs.200/- fine; in default whereof, six months simpleimprisonment”.

The relevant facts in brief are that on a written reportdated 13.07.1987 (Ex.P2) lodged by Shri Khan Mohammed withthe Police Station Manak Chowk, Jaipur, an FIR dated 13.07.1987(Ex. P3) under Sections 307 and 324 IPC came to be registeredwherein, it was alleged that in the night at about 1:00-1:30 am,some unknown person threw acid on the body of his brother-PhoolMohammed and Saleem also informed him that an unidentifiedperson has attacked him as also Shri Phool Mohammed with acid.

After investigation, charge-sheet was filed against theappellant under Sections 324, 326 and 307 IPC. However, chargeonly under Section 307 IPC was framed. The appellant pleaded notguilty and demanded trial.

After trial, the learned trial Court has, while acquitting theappellant from the charge under Section 307 IPC, convicted andsentenced him, vide judgment impugned dated 31.03.1989, in themanner stated hereinabove.

The appeal no.133/1989 has been preferred by the appellantchallenging his conviction whereas, the appeal no.216/1989 hasbeen preferred by the State for enhancement of the sentenceawarded to him.

Assailing the impugned judgment, learned counsel for theappellant submitted that findings of the learned trial Court arebased on presumptions and assumptions. He submitted that whileconvicting him, the learned trial Court did not appreciate thatthere was no legally admissible evidence available on record toconnect him with the alleged offence. Learned counsel submittedthat although, the alleged eyewitnesses S/Shri Mangu Singh(PW8) and Ratan Lal (PW15) are Constables; still, they neitherapprehended the appellant at the place of incident nor, they lodged the FIR after the incident which raises a serious doubtabout veracity of their statement. He, therefore, prayed that theappeal be allowed, the judgment impugned dated 31.03.1989 bequashed and set aside and the appellant be acquitted from thecharge.

Opposing the prayer, learned Public Prosecutor submittedthat findings of the learned trial Court, while recording convictionof the appellant, are based on cogent material on record whichwarrant no interference. He, therefore, prays for dismissal of theappeal.

Advancing the prayer made in the appeal no.216/1989preferred by the State, learned Public Prosecutor submitted thatsince, it is a case of acid attack wherein, the victim has sufferedgrievous injuries, looking to the gravity of the offence, thesentence awarded to the appellant by the learned trial Court is onvery low side which requires to be enhanced suitably.

Heard. Considered.

Insofar as the acid attack on the victim-Shri PhoolMohammed is concerned, from the evidence available on record inthe shape of testimony of Shri P.C. Vyas (PW14) who hasexamined the victim and has prepared the injury report (Ex. P19)and from the statement of the appellant recorded under Section313 CrPC, it is established beyond doubt that he suffered injurieson account of it.

Now, the moot question for consideration of this Court iswhether the prosecution has been able to establish beyondreasonable doubt that the appellant is guilty of the aforesaid acidattack.

The injured-Shri Phool Mohammed has stated as PW10 thatin the midnight of 12-13 July, 1987, when he was sleeping atabout 1:00-1:30 pm at his cycle shop in Chaura Rasta, Jaipur, hefelt burning sensation and found the appellant standing before himwhen he woke up. He has alleged that acid was thrown upon himby the appellant. In his cross-examination, he states that he didnot inform any person reaching the spot that the appellant hasattacked him with acid. He has also averred that he has informedhis elder brother-Khan Mohammad that the appellant has thrownacid upon him but, feigned ignorance when confronted as to why itwas absent in his statement recorded under Section 161 CrPC (Ex.D3). He has also admitted in his cross-examination that when theacid was thrown upon him, he was in deep slumber.

From the aforesaid testimony, it is apparent that the victimhas not seen the appellant throwing acid upon him; rather, foundhim standing in front of him immediately after it.

The learned trial Court has relied upon testimony of two eyewitnesses to record conviction of the appellant namely; S/ShriMangu Singh (PW8) and Ratan Lal (PW15). Both the witnesses arePolice Constables and were on night duty at the relevant time inChaura Rasta, Jaipur, the place of incident. In view of thestatement of Shri Madan Lal (PW5), a Constable who has exhibitedand proved the daily diary (rapat rojnamcha) (Ex. P10), it isestablished that both these Police Constables were on duty aroundthe place of incident at the relevant time. The question is whetherthey have seen the appellant attacking the victim with acid, asclaimed. While, Shri Mangu Singh has deposed that he saw theappellant throwing acid from a bottle upon the victim, Shri RatanLal has stated that he saw the appellant throwing something upon Phool Mohammed. However, as per their testimony and from theother evidence available on record, it is evident that neither theyapprehended the appellant despite him being an accused of acidattack nor, either of them lodged the First Information Report nor,they have lodged the report/even reported the ghastly crime whenthey reached the police station after completion of their night dutyas is established from the Ex. D1, the rapat rojnamcha dated13.07.1987 prepared at 4:00 am as also from the testimony ofShri Madan Lal (PW5), a Constable in the Police Station ManakChowk, who stated in his cross-examination that after theirreturn, both the Constables (PW8) and (PW15) did not lodge anyreport. It also falsifies their statement made during their crossexamination that on their return, they have reported the matterwhich was recorded in the rapat rojnamcha (Ex.D1). It was highlyunnatural conduct on the part of these two Constables.

Shri Mangu Singh has further stated in his cross-examinationthat they did not send anybody to the police station to lodge thereport; but, the SHO himself had arrived at the place of incident atabout 1:30 am and when they left the place of incident for policestation (at about 4:00 am), two Constables were left behind bythe SHO out of whom one was Shri Hanuman Singh. He hasfurther stated that they had informed the SHO about the incident.On the contrary, Shri Ratan Lal (PW15) has stated in his crossexamination that the SHO came to the place of incident at dawnand on investigation, they had informed him that Salim hasthrown something on Phool Mohammed. However, as per hisstatement recorded under Section 161 Cr.P.C. (Ex.D1) and otherevidence available on record, it is evident that they had alreadyreturned to the Police Station at 4.00 am i.e. before dawn.

Interestingly, the SHO Shri Vinit Kumar has made not a whisper ofaverment about the aforesaid happenings during his deposition asPW2 wherein, he simply says that the written report (Ex.P2) wassubmitted before him whereupon, the FIR (Ex.P3) was lodged,investigation was handed over to Shri K.C. Chand, S.I. and hefiled charge sheet against the appellant.

Further, the incident has happened in the intervening night of 12-13[th] July, 1987, as per the prosecution case, in presence ofS/Shri Mangu Singh and Ratan Lal, the Police Constables of thejurisdictional Police Station. They both have returned to the PoliceStation in the morning of 13.8.1987 at about 4 am aftercompletion of their night duty. The site plan (Ex.P16) wasprepared by the Investigating Officer in presence of and onidentification by Shri Mangu Singh and as per the crossexamination of Shri Ratan Lal (PW15), he was also present at thattime and had informed the SHO about the place from where theyhave witnessed the incident; however, Shri Kesri Chand (PW17),the investigating officer says that till preparation of the site plan,he was unaware as to whether there was any eyewitness to theincident. Further, statement of S/Shri Mangu Singh and Ratan Lalunder Section 161 Cr.P.C. (Ex.D2) and (Ex.D6) respectively, wererecorded not on 13.7.1987 but, on next date, i.e., dated14.7.1987. Although, the Investigating Officer has attempted tooffer an explanation for this delay during his cross examination asPW17 that he was busy in another duty; but, he has conducted asubstantial part of the investigation on 13.7.1987 as is apparentfrom the site plan and other documents available on record andexhibited by the prosecution. Therefore, the prosecution has failedto offer any plausible explanation as to why statement of the only two eye witnesses was not recorded promptly which wasimperative looking to the gravity of the offence.

There is one more important aspect of the matter. Although,both these witnesses have claimed to have seen the appellantthrowing acid upon the victim; but, as per their deposition, theyhave sent both; the complainant as well as the accused, in thesame Auto-rickshaw to the hospital without any personaccompanying them. When confronted during the course of crossexamination as to why the victim was sent to the hospital alongwith the appellant, no explanation was offered by them.

In view of the aforesaid evidence, especially the highlyunnatural conduct of these two prosecution witnesses, asdiscussed hereinabove which raises a serious doubt about theveracity of their statement, in the considered opinion of this court,it was not safe to record conviction of the appellant merely ontheir testimony.

Further, the learned trial Court has relied upon the depositionof S/Shri Ashok Kumar (PW11) and Bal Bahadur (PW13) as theyhave reached the place of incident soon after/ alongwith S/ShriMangu Singh and Ratan Lal. From their testimony, it is establishedthat although, S/Shri Ashok Kumar and Bal Bahadur have reachedthe place of incident immediately after the acid attack; but, havenot seen the appellant throwing acid upon the victim. In viewthereof, their testimony also is not of much help to theprosecution as none of them has, indisputably, seen the appellantthrowing the acid upon the victim. They merely corroborate thatthe appellant was present at the place of incident, a fact admittedeven by the appellant himself. However, its implication would beconsidered later on. Therefore, the learned trial Court has erred in relying upon their testimony on the premise that they areindependent witnesses having no interest in the victim PhoolMohammed and no enmity with the appellant.

So far as testimony of Shri Babu (PW16) is concerned, fromhis deposition, a possibility cannot be ruled out that he is aplanted witness. He states in his examination-in-chief that atabout 7:00 pm on 12.07.1987, the appellant visited him anddemanded colour for his brother (a painter who used to purchasepaint from the witness) as also sulfuric acid whereupon, he gaveto the appellant alongwith the colour, 250 grams of sulfuric acid ina wide opened white bottle. From his cross-examination, it isrevealed that it was not for the first time that the appellant haspurchased the colour/acid from him. Conspicuously, his statementwas recorded on 01.08.1988 i.e. after more than a year from thedate of incident and in view thereof, the vivid description aboutthe precise time, the date, the exact quantity of the acid and theexplicit details of the bottle in which it was sold, raises a seriousdoubt about the genuineness of the statement and he appears tobe, as already observed, a planted witness by the prosecution.Moreover, the leaned trial Court has held that the prosecution hasfailed to establish that the glass bottle recovered by it from theplace of incident was used by the appellant in commission of theoffence. In view thereof, the learned trial court erred in relyingupon his testimony in recording conviction of the appellant.

The remaining prosecution witnesses are either formalwitnesses or did not depose any material evidence to connect theappellant with the alleged offence.

A perusal of the judgment impugned dated 31.03.1989reveals that much emphasis has been given by the learned trial

Court to the fact that the appellant has failed to establish his plearecorded under Section 313 Cr.P.C. wherein, he has stated that atthe time of incident, when he was returning after watching amovie, his cycle did not have air in it and when he was standingon the footpath to fill in the air, an unknown person threw acidupon him as also on the victim Shri Phool Mohammed whereupon,he called for S/Shri Mohan and Ashok who sent them to thehospital. It was held by the learned trial Court that since theappellant has failed to establish that some unknown person hadthrown acid upon him as also on the victim, an adverse inferencewas liable to be drawn against him. In the considered opinion ofthis Court, this approach is not tenable. As already observed, theprosecution has not been able to establish, beyond reasonabledoubt, that the appellant attacked the victim with acid. Further,from the evidence available on record, the plea taken by theappellant could not have been brushed aside in a cursory manner.Shri Mangu Singh (PW8) has stated in his examination-in-chiefthat when they found the appellant sitting near the place ofincident at about 1:00 am, on asking, he said that the air was tobe filled in the cycle. Further, during his cross-examination, he hasadmitted that before throwing acid, the appellant has picked upthe pump to fill in the air and while, he was filling in the air, thewitness did not see any bottle in his hand. Shri Bal Bahadur hasalso said during his cross-examination as PW13 that he has seenthat an air pressure pump was attached to tyre of the cycle at theplace of incident at the relevant time. Shri Ratan Lal has alsodeposed as PW15 that on asking, the appellant informed that hehad gone to watch a movie and the air was to be filled in thecycle. This part of the plea of the appellant is corroborated from the site plan (Ex. P16) which reflects that at place “B”, there was acycle with pump attached to its rear tyre. This is also corroboratedfrom the photograph (Ex.7) submitted by the prosecution. ShriPrem Narain Sharma (PW1), the Sub-Inspector and finger printexpert, has also stated in his deposition that there were acidmarks on the cycles and air pressure pump. Moreover, in the FirstInformation Report (Ex. P3) based on the written report (Ex. P2)lodged by brother of the victim immediately after the incident, it iscategorically stated that the appellant informed that when he wasfilling in the air in the cycle after watching a movie, an unknownperson attacked him as also the victim with acid whereupon, hecalled S/Shri Ashok and Mohan. The appellant has also stated inhis plea recorded under Section 313 Cr.P.C. that after the acidattack, he called for S/Shri Mohan and Ashok. While, Shri Mohanwas not examined as a prosecution witness, Shri Ashok hascategorically stated during his examination-in-chief as PW11 thatwhile he was sleeping on the roof of his house at about 1:00-2:00am, he heard somebody crying his and his elder brother’s name.Shri Phool Mohammed (PW10), the victim, does not say that hecried for S/Shri Ashok and Mohan. As per the first versionavailable on record, it was the appellant who cried for their nameimmediately after acid attack which lends credentials to hisstatement. Thus, the substantial part of the plea of the appellantrecorded under Section 313 Cr.P.C. stands substantiated from theevidence on record. Merely because the appellant has not beenable to establish his remaining part of the plea that someunknown person threw acid, it could not have been presumed thathis plea was totally imaginary and unacceptable in view of theevidence discussed hereinabove. Further, the aforesaid evidence

casts a shadow of doubt on the veracity of the prosecutionevidence. In this regard, the learned trial court has erred indrawing an inference that since the appellant has failed toestablish his plea that some unknown person threw acid upon thevictim, it is the appellant who has done so ignoring the settledprinciple of law that the prosecution has to prove its case beyondreasonable doubt to warrant conviction and reverse burden is notupon the accused.

Further, neither it is case of the prosecution that theappellant fled from the place of incident after the acid attack nor,it is revealed from the evidence on record. Rather, both; theappellant as also the victim, had gone to the hospital in the sameauto-rickshaw without any other person accompanying them. Evenafter reaching the hospital, the appellant did not flee as, thecomplainant Shri Khan Mohammad (PW2) has stated in hiswritten report (Ex.P2) that the appellant informed him that anunidentified person has attacked both. The appellant does nothave any criminal antecedent and is not a hardened criminal andin view thereof, had the appellant committed the heinous crime ofthrowing acid upon the victim, the natural instinct would haveimpelled him to flee from the place of incident.

From the conspectus of the aforesaid discussion, this Court isnot convinced that the prosecution has been able to prove beyondreasonable doubt that the appellant threw acid upon the victimresulting into grievous injuries. Accordingly, the appealno.133/1989 preferred by the appellant is allowed, the judgementimpugned dated 31.03.1989 passed by the Additional SessionsJudge No.5, Jaipur City, Jaipur is quashed and set aside and theappellant is acquitted from the charge under Section 326 IPC. His sentence is already suspended since 13.04.1989 and, therefore,his bail bonds are discharged. He need not surrender. The appealno.216/1989 preferred by the State for enhancement of thesentence stands, consequently, dismissed.

In view of the provisions of Section 481 of the BharatiyaNagarik Suraksha Sanhita, 2023, the appellant namely Saleem S/oRamjan Khan is directed to furnish a personal bond in the sum of₹25,000/-, and a surety in the like amount before the Registrar(Judicial) of this Court which shall be effective for a period of sixmonths with the stipulation that in the event of Special LeavePetition being filed against the judgment or on grant of leave, theappellant aforesaid, on receipt of notice thereof, shall appear beforethe Hon’ble Supreme Court.

(MAHENDAR KUMAR GOYAL),J

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