Vimal Kumar Maurya vs State Of U.P.
2023 Latest Caselaw 571 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on : 22.11.2022
 
                                            Judgment Delivered on : 06.01.2023                 
 

 
Case :- CRIMINAL APPEAL No. - 4053 of 2014
 

 
Appellant :- Vimal Kumar Maurya
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajiv Lochan Shukla,Chandra Bhan Dubey
 
Counsel for Respondent :- Govt.Advocate,Ishwar Chandra Srivastava,Kamal Srivastava,Kaushlendra
 

 
Hon'ble Pritinker Diwaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per : Nalin Kumar Srivastava, J.)

1. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellant and Sri Amit Sinha, learned A.G.A. for the State.

2. The Court of Additional Sessions Judge, Court No.4, Jaunpur convicted the appellant Vimal Kumar Maurya under Section 326-A IPC in Sessions Trial No.507 of 2013 arising out of Crime No.846 of 2013, Police Station Badlapur, District Jaunpur and sentenced him for life imprisonment and fine of Rs.1 lakh with default sentence vide judgment and order dated 22.09.2014, feeling aggrieved of which the present criminal appeal has been filed.

3. The prosecution case, in brief, is as under.

On 07.11.2013 at about 12:00 at night when the informant and her family members were sleeping in their house and injured Champa Devi, the mother-in-law and Madhuri, the sister-in-law (nand) of the informant were also sleeping in a room situated in the Usahra (baramda) in front of the window, some unknown person threw acid (tejab) from the window and caused grievous hurt and deformity on their faces. The injured ladies were taken to Government Hospital, but they were referred to Janpur and subsequently to Varanasi for further treatment.

4. First information report was lodged on the basis of written report of the informant on 08.11.2013 at 6:20 A.M. and investigation started in pursuance of the said first information report.

5. The investigating officer recorded the statement of the injured witnesses, informant and other witnesses, inspected the place of occurrence and prepared site plan. He also seized acid burnt pillow, towel, dupatta and lantern from the place of occurrence and memo was prepared. During investigation, the name of present convict-appellant Vimal Kumar Maurya came into light and he was arrested by the police. Two other accused persons Sonu @ Santosh Kumar and Ved Prakash Yadav were also arrested, but subsequently final report was submitted in their favour. On the pointing out of present convict-appellant, the investigating officer also seized the pieces of bottle wherein acid was kept, the rest of the acid and acid stained soil and also a tube of gum and seizure memos were prepared. One steel glass was also recovered on the pointing out of the convict-appellant. Photographs of the injured Madhuri and mobile phone of the accused alongwith other mobile phones given by the accused to the victim were also recovered and seizure memos were prepared.

6. After completing the investigation, charge-sheet was submitted against the present convict-appellant.

7. The matter, being exclusively triable by the Sessions Court, was committed to the Court of Sessions for trial.

8. Charge under Section 326-A IPC was framed on 06.11.2014. The convict-appellant pleaded not guilty and claimed to be tried.

9. To bring home the charge, the prosecution relied upon the oral as well as documentary evidence.

10. In oral evidence, P.W.1 Suman Devi, the informant, P.W.2 Madhuri, the injured, P.W.3 Champa Devi, the injured, P.W.4 Dr. Ratnesh Dwivedi, P.W.5 Prakash Chand Rao, Chief Pharmacist, P.W.6 Dr. Saif Hussain Khan, P.W.7 Samar Bahadur Yadav, the scribe, P.W.8 Dr. Mohd. Rafeeq, P.W.9 S.I. Acchey Lal, the investigating officer and P.W.10 H.M. Amar Nath Kushwaha, scribe of first information report were examined.

11. In documentary evidence, written report Ex.Ka.-1, Medical Certificates Ex.Ka.-2 and Ka.-3, B.H.T. of injured Madhuri Ex.Ka.-4, Injury Report of injured Madhuri Ex.Ka.-5, Site Plan Ex.Ka.-6, Seizure Memo of Pillow, Towel and Dupatta Ex.Ka.-7, Seizure Memo of Lantern Ex.Ka.-8, Seizure Memo of Pieces of Acid Bottle & acid stained Soil Ex.Ka.-9, Seizure Memo of Gum Tube Ex.Ka.-10, Seizure Memo of Steel Glass Ex.Ka.-11, Seizure Memo of Mobile Phone Ex.Ka.-12 & 13, Seizure Memo of Four Photographs of injured Madhuri Ex.Ka.-14, Charge-sheet Ex.Ka.-15, Chik F.I.R. Ex.Ka.-16 and G.D. Ex.Ka.-17 have been proved.

12. On the basis of oral and documentary evidence and after hearing the parties at length and also analysing the evidence of the defence, vide judgment and order dated 22.09.2014, the learned trial court recorded the conviction of the accused-appellant under Section 326-A of IPC and sentenced him as here-in-above mentioned.

13. Sri Rajiv Lochan Shukla, learned counsel appearing for the appellant has vehemently submitted that the conviction of the appellant is bad in the eyes of law and the learned trial court, without analyzing the evidence on record in an illegal and improper manner, has recorded the conviction of the appellant, which is not sustainable in the eyes of law. There was no evidence on record to prove that it was the appellant who was the author of the crime. He has not been identified on spot and all the recoveries relating to the incident are false and fabricated. Prosecution case does not find support from the medical evidence. Even the injured witnesses are incapable to prove the prosecution case, as their evidence is shaky and full of contradictions. The place of occurrence is not defined and investigation is bitterly faulty. It is a case of false implication of the appellant and on the basis of entire evidence on record, no guilt against the appellant is established and proved. Learned counsel for the appellant further submitted that the learned lower court has neglected the defence evidence in an arbitrary manner. The findings recorded by the trial court in the impugned judgment and order are adverse to law and perverse warranting interference by the Appellate Court. Motive of the offence is also not proved.

14. On the other hand, Sri Amit Sinha, learned A.G.A. submitted that the learned trial court has made a proper and legal analysis of the evidence on record and the appellant has been rightly convicted. There is no illegality or infirmity in the impugned judgment and as such the same does not warrant any interference by the Appellate Court and the appeal is liable to be dismissed.

15. We have considered the arguments advanced by the learned counsel appearing for the parties and perused the record.

16. The arguments advanced by the parties take us through the statement of the prosecution witnesses and also the defence witnesses and at the same time through the documentary evidence adduced by the parties.

17. P.W.1, P.W.2 and P.W.3 are the witnesses of fact.

18. P.W.1 is the informant. However, she is not the eyewitness of the incident. In her statement, she has stated that on the shrieks of two injured, her mother-in-law Champa Devi and sister-in-law (nand) Madhuri, she reached the spot and found that acid (tejab) was thrown on the faces of the two injured, who were crying for pain. They were taken to the hospital. The written report was written on her dictation by Samar Bahadur Yadav, Gram Pradhan and read over to her and then he made a signature over it. She visited the hospital after four days of the occurrence where injured Madhuri told her that the appellant used to tease her and she had slapped him. She has also explained that the engagement of her Nand (injured Madhuri) was to take place one day after the incident, but 2 - 3 days before, the appellant had threatened her to cause deformity to her face in case she does not marry him. In her cross-examination, she had made a statement that when Renu Devi and she herself reached the place of incident, they found both the injured crying that something has been thrown on their faces. She also stated that she did not name anyone before the investigating officer as to who had thrown the acid. She has further stated that the name of the accused was also not told to her by her sister-in-law, rather she had told it to her husband, which was overheard by her in the hospital. She had also made a contradictory statement as to whether the injured Madhuri had ever told her that the convict-appellant used to tease her.

19. P.W.2 Madhuri Prajapati is the injured of the case, who, in her examination-in-chief, corroborating the prosecution version, has stated that the convict-appellant was willing to find her favour and proposed her for marriage, to which she denied. Her engagement was to take place on 08.11.2013 and 2 - 4 days before it, the accused had threatened her to cause deformity to her face and to ruin her if she denies to marry with him. At the time of the incident, she had gone to bed alongwith her mother in Usahra (baramda) where lantern was burning and one door of the window was broken. The accused moved the curtain of the window and peeped inside, then she recognized him, but he threw acid by some white metal lota (a small container for water round in shape, usually of brass or copper) whereby she and her mother got injured and they began shouting. The family members came over there and they were sent to hospital at Badlapur and from there to District Hospital, Jaunpur and subsequently to Pragya Hospital, Varanasi where she was admitted for 13 days. On 28.11.2013, her statement was recorded by the investigating officer. The burn signs are still present over her face. This witness has identified the convict-appellant as the author of the crime before the court during the course of her deposition and has stated that in the light of lantern, she had identified him. In her cross-examination, she has stated that her statement was recorded on 28.11.2013 by the investigating officer only once and no statement was recorded on 08.11.2013. She has also stated that tejab was thrown by lota and she had stated before the investigating officer that the acid was thrown by a white metal pot. She had made a significant statement further in her cross-examination that her sister Renu or sister-in-law (Bhabhi) Suman did not ask her as to who had thrown the acid nor she told anything about it because she was not in a position to speak. She has also explained that the convict-appellant remained with her during her treatment right from her house to Varanasi and during that period, she did not tell anyone as to who had thrown the acid.

20. P.W.3 Champa Devi is also the injured and the mother of other injured Madhuri. She, in her examination-in-chief, has stated that in the night of the incident at about 12:00, the convict-appellant threw acid over her and her daughter through the window and they got injuries over their faces. Lantern was burning in the room, in the light of which she had seen the convict-appellant throwing the acid by a glass. She had identified the accused before the court during her deposition and has stated that she does not know as to why the acid was thrown by the accused. In her cross-examination, she has stated that she remained hospitalized at Varanasi for about 12 - 13 days alongwith Madhuri. She had denied her statement given to the investigating officer that Sonu Pal and Ved Prakash Yadav had caused deformity to her daughter by throwing acid over her face. She has made some contradictory statements in her cross-examination as to by which pot the acid was thrown. One more significant statement has been made by this witness that at the time of the incident, she and her daughter had shouted that Vimal Kumar is fleeing away after throwing acid over them, which was heard by her family members, her daughter Renu and her daughter-in-law Suman also.

21. P.W.4 to P.W.10 are the formal witness.

22. P.W.4 Dr. Ratnesh Dwivedi had treated both the injured at Pragya Hospital, Varanasi. In his examination-in-chief, he has stated that the acid injury was found on the face, neck and right hand of both the injured ladies, however, Champa Devi had got acid injury over her face only. They were treated by Dr. S.J. Singh. He has proved the medical certificates of both the injured ladies as Ex.Ka.2 & 3. However, in his cross-examination, he has admitted that Ex.Ka.2 & 3 are not the injury reports rather they are medical certificates having caption of "Not for medico legal purpose". No signature or thumb impression of either of the injured ladies finds place over the aforesaid certificates. Also no reference has been mentioned in the aforesaid certificates and it has also not been mentioned at to by whom they were brought. The description of acid burn injuries are also not mentioned in Ex.Ka.-2 & 3.

23. P.W.5 Prakash Chand Rao has produced B.H.T. relating to injured Madhuri of District Hospital, Jaunpur before the court, which has been prepared on 08.11.2013 at 3:00 A.M. by E.M.O. Dr. Saif Hussain Khan.

24. P.W.6 Dr. Saif Hussain Khan, E.M.O., District Hospital, Jaunpur has stated that he had treated the injured Madhuri, who was referred from C.H.C., Badlapur having burn injuries over her face and neck. Her general condition was not very good and she was referred at 3:45 A.M. for higher centre. The B.H.T. relating to injured Madhuri has been proved as Ex.Ka.-4 by this witness. However, in his cross-examination, he has admitted that he has not prepared any medical prescription or supplementary injury report of injured Madhuri rather she was not medically examined in the Sadar Hospital, Jaunpur. He is a general surgeon and not an expert of acid burn and is unable to explain as to which acid was used in the occurrence.

25. P.W.7 Samar Bahadur Yadav is the scribe, who has narrated in his examination-in-chief that 08.11.2013, in the morning, when he got information of the incident, he reached the house of the injured. This witness is the husband of Gram Pradhan, Machhli. He has stated that on the dictation of the informant, he had written the tehreer, which was read over to the informant. He has identified his signature over Ex.Ka.-1 and also over seizure memo of towel and dupatta.

26. P.W.8 Dr. Mohd. Rafeeq had treated injured Madhuri at C.H.C., Badlapur. He has stated that on 08.11.2013 at 1:40 A.M., he medically examined injured Madhuri and found signs of burn and blisters over her face and neck. Her general condition was not very good. He gave first aid to her. The injuries appear to be acid burn injuries and fresh. The accidental medical register has been produced by this witness before the court and was proved as Ex.Ka.-5. According to this witness, after 30 - 40 minutes, the injured was referred to District Hospital, Jaunpur for better treatment. In his cross-examination, he has admitted that blisters were present only over the whole face of the injured and not over the neck. He has also admitted that he did not advice for the x-ray and no supplementary report was prepared by him and he is not sure whether the injuries were acid burn injuries or not.

27. P.W.9 S.I. Acchey Lal is the investigating officer of the case, who has proved the proceedings of the investigation and the site plan Ex.Ka.-6 and seizure memos Ex.Ka.-7, 8, 9, 10, 11, 12, 13 and 14. In his cross-examination, he has admitted some omissions in the preparation of the site plan. However, no case property has been produced before this witness. He has also admitted that the bottle, acid, acid stained soil and also the acid burnt clothes, pillow and dupatta were not sent to C.F.L. Contrary to the vicitm Madhuri, this witness has deposed that her statement was recorded on 08.11.2013 wherein she had stated that Sonu @ Santosh Pal and Ved Prakash Yadav had thrown acid over her. Another injured Champa Devi, the mother of the victim Madhuri had also corroborated the aforesaid statement of injured Madhuri and accordingly Sonu @ Santosh Pal and Ved Prakash Yadav both were sent to jail. He has also admitted that he made no investigation on the point as to in whose name the SIM of the mobile phone, collected by him, was allotted. He has also stated that the acid was thrown by a glass and not by lota and no lota as such was recovered by him. Further he has stated that injured Champa Devi in her statement recorded on 08.11.2013 had also named Sonu @ Santosh Pal and Ved Prakash Yadav as the authors of the crime. This witness has been recalled for re-examination under Section 311 Cr.P.C. wherein he has proved the case properties seized by him during the course of investigation as Material Ex.-1 to 8. He has also proved G.D. Ex.Ka.-15. He has also stated that no case property was ever identified by the victim.

28. P.W.10 H.M. Amar Nath Kushwaha is the scribe of the F.I.R., who had proved Chik F.I.R. Ex.Ka.-16 and G.D. Ex.Ka.-17 and has stated that on the basis of written report of the informant Suman Devi, the F.I.R. was lodged and prepared by him in his own handwriting and signature and the G.D. of the case as well.

29. In his statement under Section 313 Cr.P.C., when incriminating evidence and circumstances were put to the accused, he has taken a plea of false implication and has stated that the case was registered against him due to enmity and also pleaded for defence evidence.

30. A written submission has also been made by the accused stating therein that the accused was arrested without any cogent and reliable evidence and the two accused persons Sonu @ Santosh Pal and Ved Prakash Yadav, whose name came into light during the course of investigation particularly on the basis of the statement of both the injured ladies, were not charge-sheeted by the investigating officer rather a final report was submitted favouring them. No injured mentioned the name of the accused before the police and his name also does not find place in the F.I.R. itself. He was not identified at the time of occurrence and the prosecution case is not supported by the medical evidence.

31. D.W.1 Prem Chand Gupta and D.W.2 Rajendra Singh Sengar have been examined as defence witnesses.

32. D.W.1 Prem Chand Gupta is working as Incharge Principal in Sindhi Laskar Primary School, Badlapur, Jaunpur and he has stated that the convict-appellant Vimal Kumar Maurya had been working as Shiksha Mitra in his school. On 12.11.2013, when he was present at the school, the police took him for inquiry at 11:30 A.M. but he did not inform to higher authorities. He has proved the original log book of the school as Ex.Kha.-1 and also the Attendance Register as Ex.Kha.-2.

33. D.W.2 Rajendra Singh Sengar, Additional City Magistrate-I, Varanasi has stated that on 11.11.2013, he was working as S.D.M., Pindra and had recorded the statement of injured Madhuri in Pragya Hospital, Harhua, Varanasi at about 7:00 P.M. The said statement has been proved as Ex.Kha.-3 by this witness and he has made categorical statement that the injured Madhuri did not name any accused who had thrown acid over her in her statement given to him. At the time of statement, Dr. V.K. Dubey had executed a certificate that the injured is fully conscious and in fit mental state at the time of the recording of the statement.

34. On the basis of the aforesaid evidence, the learned trial court passed the judgment and order of conviction against the appellant.

35. The submissions made by the learned counsel for the appellant are to be meet out on the basis of evidence on record.

36. The first objection relates to the fixation of place of occurrence. It has been argued that the place of occurrence in this case is not certain. There is no definite evidence on the point as to what was the specific place where both the injured were sleeping. A perusal of the impugned judgment shows that this issue has been discussed by the learned trial court also. The court finds some minor contradictions between the statement of the informant and injured persons over this issue. The site plan Ex.Ka.6 shows that at place ''A' both the injured were sleeping. A window marked with letter ''B' has been shown in the western side of the place through which the acid is said to be thrown. The statement of P.W.9 shows that it was a room where both the injured were sleeping. However, P.W.1, the informant, has also stated that Champa Devi and Madhuri were sleeping in the room. P.W.2 Madhuri, the injured states that she alongwith her mother was lying in the Usahra. However, further in her cross-examination, she states that she was sleeping in a room and she has also explained the width of that room. Further she states that the incident happened in a room which has a door in the northern side and window in the western side. P.W.3 the injured Champa Devi also states that "मैं व मेरी लड़की उसेहरा वाले कमरे में लेटे थे।" She has further stated that she has a kaccha house which is dilapidated and only usahra (baramda) is remaining.

37. We have to keep in mind that the present is the case wherein the incident has occurred in a village. In the villages, the usahra is a room type place surrounded by walls and normally having no fix door and in the local term generally usahra (baramda) in a village is taken as a room. Hence, we find no contradiction on this point as to whether the injured ladies were sleeping in a room or usahra. In the site plan Ex.Ka.-6, the place of occurrence has been marked by letter ''A', which has a window in the western side and exit in the northern side which corroborates the version of the prosecution witnesses of fact. In Ex.Ka.-6, it has also been shown that the informant was sleeping at place ''C', which is the place just adjacent to that where the injured ladies were sleeping and that is why first of all the informant reached the place of incident after hearing the shrieks of the injured ladies. Hence, we find no discrepancy in the prosecution version so far as the fixation of place of occurrence is concerned.

38. The medical evidence adduced by the prosecution has been vehemently assailed by the learned counsel for the appellant. We cannot ignore this fact that the medical evidence has always a great corroborative value as it proves not only the injuries which are said to be caused in the incident, but also the manner alleged. The case of the prosecution, as the one we have in hand, is mandatorily to be corroborated by way of medical evidence, which is always very crucial for the prosecution also for corroboration of its case and that is why the evidentiary value of a medical witness can never be ignored.

39. The learned counsel for the appellant has vehemently argued that Ex.Ka.-2 and Ex.Ka.-3, the certificates issued by Pragya Multi Speciality Hospital & Research Centre Pvt. Ltd., Varanasi cannot be termed as injury reports of the injured ladies. A perusal of the contents of the aforesaid documents issued on 11.11.2013 shows that they are only certificates to the effect that the injured persons were admitted in the hospital on 08.11.2013 as a case of homicidal acid burn and they are still under treatment. Nowhere it is mentioned therein as to what injuries were found on the face and body of the injured persons and what treatment was going on. It was also argued that on the basis of medical reports, it cannot be certainly concluded that it was a acid burn case.

40. The learned A.G.A., per contra, has submitted that according to the prosecution evidence both the injured ladies were firstly took to C.H.C. Badlapur, then Government Hospital, Jaunpur and thereafter they were referred to District Varanasi and the documents relating to that duly proved in evidence, are available on record.

41. We have gone through the medical papers Ex.Ka.-4 & Ex.Ka.-5. Dr. Mohd. Rafeeq, P.W.8 has proved the medical report relating to C.H.C., Badlapur and he has appeared before the court with the original register and the medical report of injured Madhuri has been proved by him as Ex.Ka.-5 wherein the doctor has found blister formed all over face and burnt skin on face. The injury was kept under observation and the injured was referred to District Hospital, Jaunpur. The injury was caused due to any burning material and was fresh. The B.H.T. of District Hospital, Jaunpur has been proved by P.W.4 Dr. Saif Hussain Khan as Ex.Ka.-4, who has affirmed this fact that the injured Madhuri was brought to the District Hospital, Jaunpur being referred from C.H.C., Badlapur and he had found acid burn injuries on the face and neck of the injured. She was admitted into the hospital and treatment was started. The general condition of the patient was not very good and she was referred to higher centre for better treatment. Subsequently, she was brought to Pragya Hospital, Varanasi. The learned A.G.A. has contended that even if the injury reports relating to Pragya Hospital are not available on record, it cannot be said that it was not an acid burn case. P.W.4 has affirmed this fact that injured Madhuri and Champa Devi both were having acid burn injuries. They were admitted into the hospital. This witness has appeared before the court alongwith original papers regarding the treatment of both the patients.

42. In the aforesaid circumstances, we also find that the circumstances regarding the treatment of acid burn injuries of both the injured ladies are fully established. Initially, the medical report of C.H.C., Badlapur and then of District Hospital, Jaunpur clearly show that it was acid burn case and the injuries were not normal. In that way the prosecution version finds corroboration from the medical evidence also and it is established that the injuries attributed on both the injured were caused by acid.

43. The other circumstances relating to the occurrence have been put into question by the learned counsel for the appellant. It has been argued that the prosecution evidence is self-contradictory on the point as to by which means acid was thrown over the injured ladies. Both the injured ladies in their respective depositions have made contradictory statements in this regard and so is the case of deposition of the investigating officer of the case.

44. From the perusal of the evidence of injured ladies P.W.2 and P.W.3 and also of the investigating officer P.W.9, we find some contradictory statements as to by which pot the acid was thrown. It is relevant to note that one steel glass has been recovered on the pointing out of the accused. Injured Madhuri P.W.2 in her statement has stated that the acid was thrown by any white metal pot, but further in her cross-examination, she has stated that the acid was thrown by a lota and the accused fled away with that lota. However, she has admitted that in her statement under Section 161 Cr.P.C. she had not stated that the acid was thrown by lota.

45. P.W.3, the other injured, in her examination-in-chief, has stated that acid was thrown by a glass. No doubt the evidence is not very much certain as to the acid was thrown by lota or glass, but in our view, this fact does not affect the prosecution case adversely. Both the injured were lying on cot and in the light of lantern, as they deposed, they had seen the incident of throwing the acid. The relevant is that acid was thrown. The acid bottle and the pieces of bottle and acid stained soil as well, have been seized by the investigating officer from outside the window from where the acid was thrown. The investigating officer has also seized acid spotted pillow cover, towel, dupatta, kathri and chadar. All the circumstances and evidence show that indubitably it is an acid burn case.

46. We are obliged to appreciate the circumstances of the case and if we take the oral and documentary evidence together, we can picturize the prosecution story in this way that the accused used to tease injured Madhuri and he wanted to marry with her, but she was not ready. The accused being annoyed to this, had threatened to cause deformity to her face and also to cause her grievous hurt. On the next day of the incident, the engagement of injured Madhuri was to take place. The accused, prior to the occurrence, had given mobile phone to the injured Madhuri to be in touch with her. His threatening note was also seized which was affixed by using gum tube and that was also seized by the investigating officer. Photographs of injured Madhuri were also recovered from the possession of the accused. The learned A.G.A. has vehemently argued that on the basis of the aforesaid evidence and circumstances, there is no shadow of doubt that the offence was committed by the accused only.

47. The learned counsel for the appellant has vehemently argued that even if it is assumed that both the injured ladies sustained injuries by acid thrown over their face and body, by no evidence it is proved beyond doubt that it was the accused only who was the author of the crime. To give force to his argument, he has referred the oral evidence of both the injured ladies and also pressed to peruse the evidence of P.W.9, the investigating officer and P.W.1, the informant. It has been further submitted that the conduct and deposition of P.W.2 injured Madhuri throws a shadow of doubt upon the indulgence of the present appellant into the matter, rather it goes to show that the appellant is being falsely implicated in this case. It has been further argued that in fact, the injured ladies did not identify any accused who threw acid over them and subsequently by a deliberate action, the appellant was implicated in this matter.

48. The contentions raised by the learned counsel for the appellant take us through the testimonies of P.W.1, P.W.2, P.W.3 and P.W.9.

49. P.W.1 is the first informant, who came on spot upon hearing the shrieks of both the injured ladies and found her mother-in-law Champa Devi and sister-in-law (Nand) Madhuri crying with pain, as acid was thrown upon their faces. Both the injured ladies were taken to the C.H.C., Badlapur and then to the District Hospital, Jaunpur. She has further stated that four days after the occurrence, she alongwith her husband went to the hospital to see the injured ladies where injured Madhuri told her regarding the criminal intention of the accused, who was slapped by Madhuri and thereafter made a threatening to cause deformity to her face in case she does not marry him. Here we find from the perusal of the F.I.R. that it has been lodged against unknown person in the morning of 08.11.2013 i.e. the next morning of the occurrence. P.W.1 has further stated that when she reached the spot, she saw both the injured ladies crying and saying that something has been thrown on their faces. It is significant to note here that P.W.1 nowhere states that on spot, just after the incident, the injured ladies were naming the accused as the assailant. It has been further stated by P.W.1, contrary to her earlier statement, that Madhuri did not tell her the name of the accused, who had thrown the acid, but she had told this fact to the husband of P.W.1, which she overheard.

50. P.W.2 injured Madhuri in her examination-in-chief has stated that the door of the window was broken and after sliding the curtain of the window, accused Vimal Kumar Maurya peeped through the window and she had identified him in the light of the lantern. Accused Vimal threw acid over her by some white metal pot. The investigating officer had recorded her statement on 28.11.2013 and she had disclosed the facts regarding the incident. In the court also, she has identified the accused and has clarified that in the light of lantern, she has identified the accused. It is pertinent to mention that P.W.2 has categorically denied the fact that her statement was ever recorded by the investigating officer on 08.11.2013. She was confronted to her statement given to the investigating officer as to the involvement of Sonu @ Santosh Kumar and Ved Prakash Yadav in the incident. She has also denied that she had ever given any statement to the investigating officer to the effect that Sonu @ Santosh Kumar and Ved Prakash Yadav had threatened her to cause deformity to her face in case she does not obey them. She has further stated that in her statement given to the investigating officer she had disclosed the fact that the ''accused persons' (मुल्जिमान) had threatened to ruin her and to cause deformity to her face if she does not marry them. The learned A.G.A. has submitted that the statements of P.W.2 are quite natural and innocent. The lantern, in the light of which she had identified the accused, has been seized by the investigating officer and this fact was also corroborated by another injured P.W.3. P.W.2 has further given a very relevant statement that "मुल्जिम विमल कुमार दवा इलाज में मेरे साथ अस्पताल में रहा। वह घर से लेकर बनारस तक मेरे साथ था। उस अवधि में मैंने किसी से भी नहीं बताया कि तेजाब किसने फेंका था।" This statement is very significant and we are of the considered view that it hits the very foundation of the prosecution case. The occurrence happened on 07.11.2013 and injured Madhuri is said to be admitted in the hospital till 19.11.2013. It is very strange that if the accused was identified by the injured Madhuri at the moment he was throwing acid over her, then how and under what circumstances, he accompanied her right from her house to the hospital at Varanasi throughout and during the whole aforesaid period, injured Madhuri never disclosed to anyone as to he was the person who had thrown acid over her. This is not the statement of P.W.2 anywhere that during that total aforesaid period on account of any threatening of the accused, she had not disclosed his name to anyone. Hence, her conduct is quite unnatural and improbable.

51. The learned A.G.A. has failed to explain as to why injured Madhuri stated before the investigating officer that she was threatened by ''accused persons' (मुल्जिमान) if she had seen only one accused i.e. the present appellant throwing acid over her and who alone had threatened her prior to the occurrence. The learned counsel for the appellant submits that the aforesaid statement shows that the offence was comitted by Sonu @ Santosh Kumar and Ved Prakash Yadav, the two accused persons and they have threatened the injured before the incident.

52. P.W.9, the investigating officer has stated that the name of accused Vimal Kumar was brought in the present matter on the basis of the statement of the injured Madhuri and also of his own confession. He has further stated that he has recorded the statement of injured Madhuri on 08.11.2013 wherein she had stated that the acid was thrown by Sonu @ Santosh Pal and Ved Prakash Yadav over her. This statement was recorded in Pragya Hospital, Varanasi and at the same time, he has also recorded the statement of injured Champa Devi and on the basis of their statements, Sonu @ Santosh Pal and Ved Prakash Yadav were again sent to jail. He has further stated that the statement of the victim was also recorded by Ranjana Sachan, Station Officer, Mahila Thana, which was also the ground for the arrest of accused Vimal Kumar. P.W.9 has admitted that a final report was sent to the Court in respect of the accused Sonu @ Santosh Kumar Pal and Ved Prakash Yadav. In the aforesaid circumstances, we find this fact very relevant as to why P.W.2, the injured is denying her statement recorded by the investigating officer on 08.11.2013 wherein she has named Sonu @ Santosh Kumar Pal and Ved Prakash Yadav as the authors of the crime and not the present accused whereas the investigating officer P.W.9 has categorically stated that on 08.11.2013, he had recorded the statement of Madhuri and Champa Devi and some other witnesses and this was the first statement of both the injured ladies given to the investigating officer after the incident.

53. Under these circumstances, when we sift the testimony of the main injured witness P.W.2, we find ourselves in a position to record out satisfaction that the arguments extended on behalf of the appellant carry force and the entire testimony of P.W.2 is found not credible and unnatural so far as the involvement of appellant in the alleged crime is concerned. The prosecution has utterly failed to explain as to under what circumstances, the injured P.W.2 permitted the convict-appellant to accompany her after the incident and even the guilt of the appellant was disclosed by her to the police after a long time. Her statements given to the investigating officer on this point are fluctuating and so is the position of deposition of P.W.3. The prosecution has miserably failed to explain the contradictions occurred in the statements given by P.W.2 and P.W.3 under Section 161 Cr.P.C. and their depositions recorded before the court as to under what circumstances, they named accused Sonu @ Santosh Kumar Pal and Ved Prakash Yadav as the assailants when they had already identified the present convict-appellant while throwing acid over them. The conduct of both the injured ladies creates a genuine doubt in ascertaining as to who was the author of the crime.

54. The learned A.G.A. has vehemently argued that P.W.2 and P.W.3 are the injured witnesses and their presence on the scene stands established in this case and it is also proved that they have suffered injuries during the said incident. In our view, the veracity of the evidence of an injured witness is never disputed and no doubt an injured witness falls into special category of witness and the discrepancies of trivial nature cannot form basis of rejecting evidence of an injured witness, but the testimony of an injured witness cannot be taken as gospel truth in all the circumstances.

55. In State of Haryana Vs. Krishan, A.I.R. 2017 Supreme Court 3125, it was held that deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The same view was reiterated in Laxman Singh Vs. State of Bihar, (2021) 9 SCC 191 by holding that deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. Evidence of injured witness is entitled to a great weight and very cogent and convincing grounds are required to discard his evidence.

56. In the light of the aforesaid observations made by the Hon'ble Apex Court and keeping in view the established legal principles in respect of the value of testimony of an eyewitness, when we sift the evidence of injured witnesses in this case, we find that the contradictions and unnatural statements of these witnesses make the whole prosecution story highly doubtful. The contradictions and omissions, as we have pointed out earlier, are very material in nature.

57. In Narayan Chetanram Chaudhary & Another Vs. State Of Maharashtra (2000) 8 SCC 457 while considering the issue of contradictions in the testimony in a criminal trial, it was held:

"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of P.W.2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."

58. If we translate the principle laid down in the above-mentioned case, we find that the contradictions and omissions finding place in the testimony of P.W.2 and P.W.3 are material and capable to discredit their evidence. That is why we certainly hesitate to affirm the conviction of the appellant on the basis of the evidence adduced by the prosecution particularly when we appreciate the evidence of injured witnesses in correct perspective. We find vital discrepancies and inconsistencies in their evidence coupled with their unnatural and improbable conduct, more particularly on the point as to who was the author of the crime and who threw acid upon the injured ladies and it makes their testimony unworthy of credence.

59. In Khema alias Khem Chandra etc. Vs. State of U.P., 2022 SCC OnLine SC 991, the Hon'ble Apex Court appreciating the whole oral and documentary evidence on record, and particularly scrutinizing the evidence of injured eyewitness, found that there were serious discrepancies and inconsistencies with regard to the time of the injuries sustained and time at which he was medically examined. Pointing out some other discrepancies, the Hon'ble Apex Court found that it was not safe to base the conviction on the sole testimony of injured eyewitness and the appellant was found entitled for benefit of doubt.

60. In the case in hand, no doubt the place and time of the occurrence, the manner alleged, the cause of injury, the medical evidence are the ingredients which stand in favour of the prosecution, but the most important aspect as to who was the assailant, is not proved beyond reasonable doubt on the basis of the oral and documentary evidence on record. Even if it is assumed that the convict-appellant wanted to marry with the injured P.W.2 and on earlier occasions he had also threatened her, it is not a proof of that degree which can be taken as capable of proving the prosecution case beyond reasonable doubt but remains a mere suspicion in the light of the evidence on record. In a catena of decisions, the legal position has been established that suspicion, howsoever strong, cannot take place of proof.

61. In Sheila Sebastian V. R. Jawaharaj 2018 (5) Supreme 239, it was held - "Law is well settled with regard to the fact that howsoever strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof."

62. The so called recovery of so many articles on the pointing out of the convict-appellant is not proved in the manner prescribed by the law. P.W.7, the independent witness of recovery of pillow and dupatta does not support the prosecution over this issue. He has stated that the police had obtained his signature over a plain paper when he was called at the police station. For the recovery evidence under Section 27 of the Evidence Act, the required conditions are propounded like this in Anter Singh Vs. State of Rajasthan, A.I.R. 2004 SC 2865 -

"The first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded."

63. P.W.9, in his entire testimony, as we find has not stated anywhere in clear terms that any disclosure statement was ever made by the appellant and he made discovery of a fact in consequence of the information, so received. It is the investigating officer P.W.9 who states regarding all the recoveries but as admitted by him, in his deposition, no map of any place of recovery has been prepared by him. Why the independent witnesses of recovery were not produced when they were available to the prosecution and their names also find place in the charge-sheet Ex.Ka.-15, is a dent in the prosecution case. The evidence of the investigating officer P.W.9 is also shaky and from the perusal of his deposition we find that proper investigation was not done in this case. The evidence of P.W.9 reflects that during investigation, at one place he found that the main culprits are Sonu @ Santosh Kumar Pal and Ved Prakash Yadav, but on another place he gives them clean chit and implicates the present convict-appellant, but when investigation proceeds, the involvement of the aforesaid two persons is again found in the crime, but subsequently a final report is submitted in their favour and charge-sheet against the present convict-appellant. The prosecution has utterly failed to explain that why the name of the convict-appellant was not disclosed by injured P.W.2 to anyone after so many days of the occurrence. If we accept the statement of P.W.1 that injured P.W.2 had named the present convict-appellant as assailant to her husband in the hospital, why the husband of P.W.1 was not produced in the court, is also a point not explained by the prosecution. Hence, at this juncture, the evidence of P.W.1 remains hearsay evidence only.

64. We also find force in the contention of learned counsel for the appellant that if the convict-appellant accompanied the injured P.W.2 throughout the period she remained in the hospital, as P.W.2 also admits, why the investigating officer did not arrest him. In all, if the facts and circumstances of the case and the evidence adduced are taken together, their cumulative effect creates a strong suspicion about the involvement and participation of the convict-appellant in the alleged crime and the judicial scrutiny and analysis of the matter takes us to the direction of benefit of doubt in favour of the convict-appellant.

65. In Mousam Singha Roy Vs. State of West Bengal, 2003 12 SCC 377, it was held that it is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.

66. In our assessment, the prosecution evidence in this case does not meet out the required degree of proof.

67. Upon careful analysis and consideration of the settled legal position in the backdrop of the facts and circumstances of the present case, we are of the considered opinion that the conclusion arrived at by the learned trial court in the impugned judgment is not in accordance with law and the evidence available on record. Thus, this Court is of the view that the prosecution has not been able to establish the guilt of the convict-appellant under Section 326-A IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court.

68. In Suchand Pal vs. Phani Pal, 2004 SCC (Cri) 220, the Hon'ble Supreme Court held that if from the evidence on record and in the facts and circumstances of the case two views are possible, one pointing to the innocence of the accused and other to the guilt of the accused, the view which favours the accused should be preferred.

69. The learned trial court has erred in scrutinizing and analysing the evidence on record and the finding in respect of the guilt of appellant is perverse and not according to law. Therefore, we are inclined to grant benefit of doubt to the convict-appellant on the ground of rule of caution.

70. Hence, the impugned judgment and order of conviction and sentence, which has been sought to be assailed, calls for and deserves interference. The criminal appeal is liable to be allowed and the same is accordingly allowed.

71. The impugned judgement and order dated 22.09.2014 is, accordingly, set aside. The convict-appellant is given benefit of doubt and accordingly is found not guilty for the offence punishable under Section 326-A IPC. He is acquitted from the charge. Convict-appellant is in jail. He shall be released forthwith, if not wanted in any other case.

72. Let a copy of this judgment along with trial court record be sent to the Court concerned for necessary compliance.

 
Order date :- 06.01.2023
 
ss
 

 
(N.K. Srivastava,J.)      (Pritinker Diwaker,J.)