Dileep Kumar vs State Of U.P. And Another
2022 Latest Caselaw 22184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 13.12.2022
 
Delivered on 21.12.2022
 
Court No. - 91
 

 
Case :- CRIMINAL REVISION No. - 2082 of 2022
 
Revisionist :- Dileep Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Syed Mohammad Abbas Abdy,Om Prakash
 
Counsel for Opposite Party :- G.A.,Radhe Shyam Gupta
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri S.M.A. Abdy and Sri Om Prakash, learned counsel for the revisionist, Sri Radhe Shyam Gupta, learned counsel for the opposite party no. 2 and Sri O.P. Mishra, learned AGA for the State.

2. This criminal revision has been filed challenging the impugned judgment and order dated 13.05.2022 passed by the Additional Session Judge, Court No. 6, Varanasi in Session Trial No. 994 of 2021 arising out of Case Crime No. 98 of 2021, under Section 326A IPC, Police Station-Jaitpura, District Varanasi.

3. Facts leading to filing of this revision is that on the basis of 'tahrir' given by the informant Anita Jaiswal, FIR Case Crime No. 0098 of 2021 was registered on 25.05.2021 at about 16:36 hours with the allegations that one Dileep Srivastava and his wife Nisha Srivastava, who used to reside in a flat just above the residential flat of the informant, threw acid from above which fell on neck, chest and back of Ram Saran Jaiswal-husband of the informant, who were at that time, brushing their teeth in their courtyard; the incident occurred on 25.05.2021 at about 05:30 am; it is stated in the FIR that they made a noise and dialled on 112; the police came and got her husband hospitalized; it is also stated in the FIR that Chowki Incharge, Chaukaghat pressurized them not to lodge an FIR lest they shall face serious consequences and that her two kids will be entangled in false case; after medical examination and recording of statement under Section 161 Cr.P.C., chargesheet was submitted; the cognizance was taken. Before the court, an application on behalf of the accused under Section 227 was moved which came to be dismissed. Now, the accused has come before this court in revision challenging the order declining his prayer for discharge.

4. The contentions of the revisionist are that a day before lodging of the FIR of present case, an FIR from the side of the accused/revisionist, Case Crime No. 0097 of 2021 under Sections 354A IPC and Sections 7/8 POCSO Act was filed that his daughter Subhi Srivastava faced an indecent exposure from Ashwani Jaiswal S/o Ram Saran Jaiswal (the alleged injured in the instant case). A few months before filing of these two FIRs, another FIR Case Crime No. 213 of 2020 under Sections 354A, 506 IPC came to be lodged by Manisha SrivastavaW/o Dileep against Sumit and Micky sons of Ram Saran Jaiswal. In the backdrop of above facts and litigations between the two sides, a false story was cooked up and FIR lodged against the revisionist. It is contended that no acid injury was found on his person, however, the chargesheet was submitted in collusion with the police officials. The court below did not consider the medical report and the report of the Medical Board and ordered for framing of charge under Section 326A IPC without having any material before it for making out such charge even prima facie.

5. The allegations in brief are that accused Dileep Kumar, the present revisionist and his wife threw acid on Ram Saran Jaiswal from upper storey of the building; the acid fell on his neck, chest and back. He was examined at Sri Shiv Prasad Gupta Mandaliya Zila Chikitsalaya, Varanasi. The medical examination was done on 25.05.2021 at about 06:30 pm, showing only burning sensation and no sign of acid injury. The burning sensation cannot be equated with the acid injury, therefore, no case is made out, hence, he deserves to be discharged.

6. I went through the impugned order. The revisional court referred to the judgment of Apex Court in Sheoraj Singh Ahlawat and Others vs. State of U.P. and Another; 2013 ACC 988 SC and quoted from the aforesaid judgment that the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence and that the probative value of the material on record is not to be considered. Thereafter, the revisional court referred to another judgment of Apex Court in State of Orissa vs. Debendra Nath Pandhi; (2005) 1 SCC 568, to support its view that acceptance of contentions of the accused would mean permitting the defence side to adduce evidence at the stage of framing of charge. The revisional court also put reliance on another judgment of the Supreme Court in Sajjan Kumar vs. C.B.I.; (2010) 9 SCC 368, wherein while exercising jurisdiction under Sections 227 and 228 of the Code, the Apex Court gave an opinion that broad probabilities of the case have to be seen and if two views are possible then one of them giving rise to suspicion only as distinguished from grave suspicion, the trial judge will be empowered to discharge the accused at that stage.

7. The revisional court highlighted the statement given under Section 161 Cr.P.C. by the injured, his wife and his two kids and also the statement of medical officer, in which, he said that it was a suspected acid attack.

Section 326A IPC is as below:-

"Whoever causes permanent or partial damage or deformity to, or burns 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."

8. The kind of injury which are covered by this section include permanent or partial damage or deformity or burns or maiming or dis-figuration or disability or grievous hurt. The second requirement is medium employed which can be acid only. The third requirement is by throwing or by administering or by any other means but the same should be with the intention of causing or with the knowledge of that he is likely to cause such injury or hurt. In other words, it punishes throwing/administering acid or application by any other means when the intention is to cause or there is knowledge that likely effect shall be causing such injury or hurt. The oral evidence as given by the witnesses under Section 161 Cr.P.C., say that it was acid, which was thrown. Section 326A IPC seems to have a wider scope as far as the nature of injuries are concerned and it includes burns as well.

9. It may be noted that admittedly both the sides do not have a normal relations and they are engaged in criminal litigations arising out of FIRs lodged by both the sides against each other. These facts indicate probable motive. It may be noted that for the purposes of Section 326A IPC, the term acid includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars. From evidence collected by the investigation officer, this probability cannot be ruled out that any liquid of corrosive character was used bringing the case within the definition of Section 326A IPC. As far as the medical evidence is concerned, it shall be appropriate that the credibility and probative value of such evidence is assessed at appropriate stage and no final conclusion is drawn at this stage. The Court has to form an opinion on the available material for the purpose of framing charge and no more.

10. In view of the above, I am not inclined to interfere in the conclusions drawn by the trial court, using revisional powers of this Court, therefore, the revision is dismissed.

Order Date :- 21.12.2022

Vik/-