Rahul Rajbhar vs State Of U.P.
2021 Latest Caselaw 10148 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                       A.F.R.
 
Reserved On :- 28.07.2021
 
                                                                    Delivered On :-12.08.2021
 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 3872 of 2015
 
Appellant :- Rahul Rajbhar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shiv Dayal Tiwari,Deepak Kumar Srivastava,Ganesh Shanker Srivastava,Sabhapati Tiwar,Santosh Kumar Pandey,Saurabh Tripathi
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Tyagi,J.

1. Heard learned counsel for the appellant and learned A.G.A. for the respondent.

2. This criminal appeal has been preferred against the impugned judgment and order dated 28.8.2015 passed by Additional Sessions Judge, Court No.5 Basti in S.T. No.63 of 2014 (State Vs. Rahul Rajbhar) arising out of Case Crime No.511 of 2013, under Sections 326-A I.P.C., Police Station Munderwa, District Basti convicting and sentencing the appellant for ten years rigorous imprisonment and Rs.20,000/- as fine under Section 326-A I.P.C. and further six months imprisonment in case of default of fine.

3. Relevant facts of this case are that on 10.05.2013 complainant Kanhaiya Lal son of Shivdas lodged an FIR in Police Station Munderwa, District Basti with the averments that on 10.05.2013 at about 4:30 AM his daughter Km. Pooja aged about 16 years was going to ease herself out with her mother Belmati and sister Km. Rinki; when she reached on the road in front of the village, accused Rahul Rajbhar who was sitting on the road, poured acid from a box upon his daughter Pooja, as a result of which, she sustained serious injuries on her face and other parts of the body. On account of raising alarm by his wife and daughter, accused fled away from the spot; many people of village had seen the occurrence.

4. Accused-appellant was charged and tried by learned trial court under Section 326-A I.P.C. and he was convicted and sentenced for that offence.

5. Learned counsel for the appellant has submitted that accused is innocent and he has falsely been implicated in the present case with delayed FIR. Injuries to the victim were of simple in nature and case was not proved by prosecution evidence; while on the other hand learned A.G.A. submitted that in this case P.W.-1 Pooja is the star witness; she has supported the prosecution case; her statement before the learned trial court is corroborated with medical evidence which is well proved by the doctor who conducted the medical examination of the victim. Km. Pooja remained admitted for 14 days in hospital and accused has been rightly convicted by the learned trial court.

6. In detailed arguments learned counsel for the appellant first of all argued that in this case there is a delay in lodging the FIR. It is submitted that as per the prosecution case, occurrence has taken place at about 4:30 AM while FIR was lodged at 6:00 PM. Statement of the victim under Section 161 Cr.P.C. was recorded by Investigating Officer after 12 days of occurrence but perusal of the record shows that occurrence is said to have taken place at about 4:30 AM on 10.05.2013 and First Information Report was lodged at 6:40 AM that is near about after two hours of the occurrence. The argument of learned counsel for the appellant that FIR was lodged at 6:00 PM is against the record. Perusal of Chick F.I.R. Exb. KA-4 also shows that it was lodged at 6:40 AM; P.W.-6 constable Jang Bahadur Bharti also said in his statement that F.I.R. was lodged at 6:40. Moreover, there is an entry in general diary, Exb. Ka-5 of registration of case at 6:40 and giving Majrubi Chhithi to Km. Pooja for medical examination; medical examination report at the back of the Majrubi Chhithi Exb. KA-2 shows the time of medical examination as 10:55 AM. Hence, argument of learned counsel for the appellant that F.I.R. was lodged at 6 PM is totally against the record. Hence, it is obvious that there was no delay in lodging the FIR.

7. Learned counsel for the appellant further submitted that P.W.-1 Km. Pooja has said in her cross examination that her sister Rinki and she are not from the same mother but are step-sisters. Smt. Belmati who was said to be with the victim at the time of said occurrence, is her step-mother who used to rebuke the victim whenever any mistake was committed by her. On 10.05.2013 at 8 O' clock in the night, victim's parents thrashed victim and her step-sister due to their going out from home.

8. Learned counsel for the appellant has submitted that due to being step-mother, Smt. Belmati used to beat her and due to that Km. Pooja was burnt by her step-mother and accused has been falsely implicated in this case for settling the scores.

9. Learned counsel for the appellant further argued that there was no motive for the accused to throw acid on Km. Pooja, although it is said by P.W.-1 Km. Pooja in her statement that before the said occurrence, appellant Rahul Rajbhar tried to molest her many times after which, she stopped him and told that she will complain about this to her father. On account of that, accused committed offence of throwing acid upon her. Learned counsel for the appellant has submitted that above statement is given by P.W.-1 Km. Pooja but there is nothing on record to show that any F.I.R. or complaint for molestation has been filed by Km. Pooja or her father, hence, motive told by P.W.-1, Km. Pooja in her statement fails and it is proved that accused-appellant had no motive to commit the crime.

10. It is a case of direct evidence as P.W.-1 Km. Pooja and P.W.-2 Km. Rinki are the eye witnesses of the incident; in case of direct evidence, motive has no relevancy. Motive is important. In case of circumstantial evidence. Although in this case, P.W.-1 Km. Pooja has stated about the motive behind the crime that she was molested by accused-appellant on several occasions before the present occurrence and every time she stopped him. In my opinion since prosecution has produced P.W.-1 Km. Pooja and P.W.-2 Km. Rinki as eye witnesses of the occurrence, motive has no importance in this case. Moreover, it was not necessary for Km. Pooja/victim or by her father to lodge F.I.R. against the accused for molestation of earlier occasions. It was enough if Km. Pooja complained to her father about molestation as stated by her in her statement, hence the argument of learned counsel for the appellant regarding motive is not tenable.

11. It was also argued by learned counsel for the appellant that as per the First Information Report many people of the village gathered at the place of occurrence, if it was so then how the accused fled away from the scene as he would have been caught by the people but the same does not hold good ground because F.I.R. clearly states that people of the village came on the spot after listening to the noise made by the victim and her sister and mother. It was also submitted by learned counsel for the appellant that prosecution could not fix and prove the place of occurrence; P.W.-1 Km. Pooja could not tell the boundaries of the place of occurrence, hence on this ground alone, the prosecution case fails.

12. Perusal of cross examination of P.W.-1 Km. Pooja reveals that regarding place of occurrence she just said that she does not know the name of the house owners in the north. Apart from it she had stated that in south, there is a house of Munnu Chaudhari and in east and west there is a road. Knowing the names of owners of the house nearby the place of occurrence, in my opinion, is not necessary because they have settled there by coming from distant places. Moreover, the Investigating Officer, P.W.-7 proved the site plan Exb. KA-6; hence, place of occurrence is very well established by the prosecution.

13. It was submitted by learned counsel for the applicant that according to the prosecution case, accused poured the acid from the box but no such box was produced before the learned trial court by the prosecution. In my opinion, if above said box is not produced by the prosecution, it does not in any way weakens the prosecution case because if there are procedural latches of prosecution or Investigating Officer, its benefits cannot be given to the accused as held by Hon'ble Apex Court in Ram Bali Vs. State of U.P. 2004 Vol. 47 ACC 453. It is also held in Paras Yadav Vs. State of Bihar, 1999 (2) SCC 126, it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of the officials alone should not stand on the way of evaluating the courts in finding out the truth, if the materials on record are credible and truthful, otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party and in the process to the community at large.

14. As was observed in Ram Bihari Yadav v. State of Bihar and others, J.T. (1998) 3 SC if primacy is given to such designed or negligent investigation to the omission or lapse by per-functionary investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice.

15. Hence, if there is any shortcoming on the part of prosecution that the tin box containing acid at the time of occurrence was not produced before the learned trial court, it alone does not weaken the prosecution case because evidence of witnesses of fact is otherwise reliable on the point of throwing the acid by the appellant-accused on Km. Pooja and Km. Rinki.

16. Regarding the injuries sustained by Km. Pooja and Km. Rinki, learned counsel for the appellant argued that injuries to the victim are superficial and simple in nature; hence, the offence may fall maximum in the ambit of Section 323 I.P.C.

17. Learned counsel for the appellant referred the injuries of Km. Rinki (sister of Km. Pooja) and argued that P.W.-5, Dr. Ramji Soni who conducted the medical examination of Km. Rinki also said that injuries to her were superficial and simple in nature. It is also said by doctor that such type of injuries may also come with hydroelectric acid, sulfuric acid, nitric acid etc. but he could not tell as to what type of acid was found on the body of the victim and also it cannot be said that by above acid there could be disfigurement or disability; doctor also did not mention the degree of the injuries but learned counsel for the appellant did not refer to the injuries of main victim Km. Pooja. For ready reference Section 326-A I.P.C. is being reproduced as under:-

"Section 326-A. Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine;

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim;

Provided further that any fine imposed under this section shall be paid to the victim."

18. I carefully perused the injury reports of Km. Pooja and Km. Rinki. Medical examination of Km. Pooja was conducted by P.W.-4, Dr. Vinay Kumar Srivastava. In medical report prepared by the said doctor Exb. KA-2, following injuries were found on the body of Km. Pooja:-

Superficial to deep seated corrosive burn spread in patches over whole face both side and both side of forehead, front and left side of neck, upper chest both side, left arm, left forearm, right arm front, right forearm front, right lower thigh front, front of left lower thigh, left upper leg and left knee.

19. In this report, it is opined by the doctor that injuries were superficial to deep seated corrosive burn involving the area as described above, covering about 33 per cent of total body surface area. Doctor has opined that these injuries were grievous in nature duration of which was about fresh.

20. In his statement as P.W.-4, Dr. Vinay Kumar Srivastava has well proved the above injury report as Exb. KA-2 and corroborated these medical report with the statement made before the trial court. Hence, this case falls within the ambit of Section 326-A of I.P.C. Medical examination of Km. Rinki was conducted by P.W.-5 Dr. Ramji Soni who prepared her medical report which is proved by him as Exb. KA-3 in which five injuries are recorded in Exb. KA-3 which were mainly on her shoulder and arms; her above injuries were simple in nature; in fact Km. Rinki sustained burn injuries at the time when acid was thrown mainly on Km. Pooja and since Km. Rinki was with her at that time, hence she also got sprinkles of acid on her body.

21. In this case, P.W.-1 Km Pooja is main injured witness and star witness of prosecution as she has stated that on 10.05.2013 at about 4:30 AM in the morning she was going to ease herself out with her sister and her mother and when she reached on the road, the accused who was already there, threw acid from a box in his hand on her due to which she sustained serious burn injuries. In her cross-examination there was nothing which could weaken the statement made by her; in fact in cross-examination, two different suggestions were given to Km. Pooja; one suggestion is given that her mother threw the acid on her body taken out from the battery before her father and second suggestion was given that at the time of occurrence it was night and nobody identified the accused. So these are contradictory suggestions, so prosecution has failed to put his defence properly.

22. P.W.-2 Km. Rinki was also cross-examined at length but there were no discrepancy in her statement which could adversely affect the prosecution case. One suggestion given to P.W.-2 Km. Rinki is that being step-mother, Smt. Belmati used to beat Km. Pooja due to which she herself poured inflammable substance upon her. The prosecution has failed to put its defence case. Eye witnesses P.W.-1, Km Pooja is the main injured in this case and her testimony carries much weight.

23. In Balwan and others Vs. State of Haryana, passed in Criminal Appeal No.1842 of 2014 Hon'ble Apex Court held that "normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. It is trite law that evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injuries to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished."

24. P.W.-1 Km. Pooja and P.W.-2 Km. Rinki have fully supported the prosecution case in their respective statements and their statements were fully corroborated by medical evidence as discussed above, and prosecution has succeeded to prove its case against the accused beyond reasonable doubt.

25. No other point was raised from the side of accused-appellant.

26. Hence, in my opinion, prosecution version is consistent and the conviction and sentence recorded by the learned trial court below is correct and it has rightly convicted the accused-appellant which does not call for any interference, as a result, the appeal is liable to be dismissed.

27. The appeal is accordingly, dismissed.

Order Date :- 12.8.2021

P.S.Parihar