Jamat Sk vs The State Of West Bengal
2022 Latest Caselaw 8577 Cal

           IN THE HIGH COURT AT CALCUTTA
                  Criminal Application
                       Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
                And
The Hon'ble Justice Md. Shabbar Rashidi


                      CRA 227 of 2020

                         Jamat Sk

                            Versus

                The State of West Bengal


For the appellant : Mr. Manas Kr. Das, Adv.


For the State    : Mr. Partha Pratim Das, Adv.
                 : Ms. Manasi Roy, Adv.



Hearing concluded on : 08th December, 2022

Judgment on             : 21st December, 2022




                        1
 Md. Shabbar Rashidi, J.:

      1.

The Appeal is directed against the judgment of

conviction and order of sentence dated July 14, 2020,

passed by Learned Additional Sessions Judge, Kandi,

Murshidabad in connection with Sessions Trial No. 02 (10)

of 2019 arising out of Sessions Case No. 151 of 2019,

convicting the appellant for the offence punishable under

Section 326A of the Indian Penal Code, 1860.

2. The facts giving rise to the instant appeal in a

nutshell is that on July 07, 2019 at about 6.00 pm one

Mila Khatun aged about 18 years, the daughter of the de-

facto complainant was cooking in her kitchen. At the

relevant time, the appellant Jamat Sk. called her and

threw acid on her face through the window. Upon hearing

the screams of Mila Khatun, her mother Selina Bibi

rushed to her and found her daughter crying. She was

taken to Bharatpur Hospital with the help of local people

from where she was referred to Kandi SD Hospital. Mila

Khatun sustained acid burn injuries on her face and

throat.

3. Over the incident, Dalim Sk. the father of the Victim

Mila Khatun lodged a written complaint with Bharatpur

Police Station on July 07, 2019 at 22.40 hrs. On the basis

of such written complaint, Bharatpur Police Station Case

No. 175/19 dated 07.07.2019 under section 326A of the

Indian Penal Code was started against the appellant.

4. The police took up investigation and on completion

of investigation, submitted charge sheet under the

aforesaid section against the appellant.

5. Subsequently, on the basis of materials in the case

diary, charge under section 326A of the Indian Penal Code

was framed against the appellant, which was duly read

over and explained to him to which, he pleaded not guilty

and claimed to be tried. Accordingly, the appellant was put

on trial.

6. In order to substantiate the charge, prosecution

examined nine witnesses. In addition, prosecution also

adduced documentary evidences as well.

7. The de-facto complainant himself deposed as PW 1.

He has stated that on 07.07.2019 at about 6.00/6.30 pm,

his daughter Mila went inside the kitchen to keep the

jackfruit given by Sonai Bibi. The accused Jamat Sk.

threw acid upon her, through the window of the kitchen,

causing acid burn injuries. He came to know about the

incident from his daughter and others. PW 1 also stated

that he lodged a written complaint over the incident which

was scribed as per his instructions and the same was read

over and explained to him. He further stated that his

daughter was first treated at Bharatpur BPHC and

thereafter, she was moved to Kandi SD Hospital. The

police visited his house and seized acid soaked soil and

brick in his presence and he put his thumb impression on

the seizure list. He also put his left thumb impression (LTI

on the Zimmanama through which the Admit Card issued

by West Bengal Board of Madrasah Education of his

daughter supplied by him was returned to him. Nothing

favorable could be wrested by the defense upon cross

examination of PW 1.

8. The victim deposed as PW 2. She stated that on

07.07.2019 at about 6.30 pm, she went inside her kitchen

to keep the jajackfruit given by her aunt Sonai Bibi. The

accused threw acid upon her through the hole of the

kitchen causing burn injuries on her face and frontal side

upper portion of her chest. She shouted and reported the

incident to her mother whereupon on the screams raised

by her mother, local people assembled. She was taken to

Bharatpur BPHC wherefrom she was referred to Kandi SD

Hospital for better treatment. She also informed the

incident to her father, local people and the police. She was

interrogated by police in connection with the case and also

recorded her statement under section 164 of the Code of

Criminal Procedure before learned Magistrate which she

tendered in her examination (Exhibit 1). She also proved

photograph of the walls of her kitchen (Exhibit 2). In her

cross examination, PW 2 stated that she remained

admitted in the Hospital for 22 days. She sustained acid

burn injuries on her right eye due to which her eyesight

went blurred.

9. The Medical Officer of Bharatpur BPHC was

examined as PW 3. He stated that on 07.07.2019 one

patient Mila Khatun was brought to the Hospital by her

father Dalim Sk. with a history of physical assault by

throwing corrosive or acid on her face at 6.30 pm on the

said date as reported by the victim and her father. On

medical examination, he found that the patient was

conscious but in respiratory distress. He also found

acid/corrosive burn on the patient's facial region and

some parts of neck region. She was in blurred vision in

both her eyes. PW 3 provided primary treatment and as

there was no burn unit in the Hospital, the patient was

referred to Kandi SD Hospital for treatment by surgeon

and ophthalmologist. He tendered and proved the injury

report prepared in his pen (Exhibit 3).

10. Mother of the victim deposed as PW 4. She stated

that about 4 months ago (from 26.11.19) at about 6/6.30

pm Mila went inside the verandah used as kitchen to keep

jackfruit provided by the sister of PW4, namely Sonai Bibi.

She was outside feeding hens and ducks. Suddenly, PW4

heard shouting of her daughter and rushed inside. She

was reported by her daughter that Jamat Sk. threw acid

through the holes of kitchen wall due to which her

daughter sustained severe burn injuries on right side of

her face and neck and scattered injuries on the right side.

She took her daughter to Bharatpur Hospital wherefrom

she was transferred to Kandi SD Hospital. She also stated

that police seized acid stained soil and some portion of

brick from her house in her presence. She proved her

signature on the seizure list (Exhibit 4/1). In her cross

examination, she stated that she was interrogated by

police in connection with the incident on the date of

occurrence itself.

11. PW5 is the aunt of the victim. She stated that at

about 6/6.30 p.m. about four months ago (From

26.11.2019) she handed over jackfruit to the victim Mila.

She went to keep the jackfruit in the Veranda used as

kitchen. Suddenly, PW5 heard shouting of Mila and

rushed inside. She was reported by the victim that she

was called by the person who threw acid through the holes

of the kitchen wall due to which she sustained injuries on

her face and neck. She identified the appellant. This

witness was declared hostile by the prosecution and she

admitted in her cross-examination by the prosecution that

she did not make a statement before the police that Mila

came out of her kitchen shouting that Jamat fled away

after throwing acid upon her or that Jamat Sk wanted to

marry Mila but she did not agree for which he threw acid.

12. Eye surgeon of Kandi SD Hospital deposed as PW6.

He stated that on 07.07.2019, he examined one Mila

Khatun in the hospital as indoor patient. She was

admitted in the hospital with the history of acid burn over

the face and upper chest. On examination, he found that

right eye conjunctiva was congested i.e. red. PW6 also

observed that her eye sight in the right eye diminished.

The patient was referred to Murshidabad Medical College

and Hospital on 11.07.2019. He proved the report (Exhibit

5).

13. PW7 is the scribe of the written complaint. He

scribed the written complaint as per the instructions of

the complainant. It was read over and explained to the

complainant. Being satisfied, the complainant put his LTI

on the complaint. PW7 also signed on the complaint as

scribe. He proved the written complaint (Exhibit 6).

14. Investigating officer deposed as PW8. He stated that

on 07.07.2019, ASI B. Bhadra received a complaint from

the informant of endorsing as receipt on the complaint

itself (Exhibit 6/1) and started Bharatpur Police Station

Case No. 175 of 2019 dated 07.07.2019 under section 326

of the Indian Penal Code. ASI B. Bhadra filled up the

formal FIR (Exhibit 7).

15. Being entrusted with the investigation by the

officer-in-charge, PW8 took up the investigation. He visited

the place of occurrence and prepared rough sketch map

with index (Exhibit 8). He also recorded the statement of

witnesses under section 161 Cr. PC in course of

investigation. He also seized some acid on 07.07.2019 at

about 23.55 hour from the house of the complainant i.e.

the place of occurrence in presence of witnesses. PW8

proved the said seizure list (Exhibit 4). He also seized

some photocopies of the victim having acid burns on her

face and that of the kitchen wall. The seizure was made on

18.08.2019 at Bharatpur Police Station and was produced

by the photographer Sanjay Saha. Such seizure list was

proved by PW8 under exhibit 9. The investigting officer

also arrested the accused and sought for his police

custody. During such custody period, one empty bottle of

acid was recovered as the leading statement of the

accused. The said seizure list was tendered and proved by

PW8 (Exhibit 10). The investigating officer also seized the

wearing apparels of the victim stained with acid under a

seizure list on 17.07.2019(Exhibit 11). By separate seizure

list, the admit card of the victim issued by West Bengal

Board, Madrasa Education was seized on 15.07.2019

(exhibit-12). The said admit card was handed over to the

father of the victim on a zimmabond (Exhibit 13). The

medical report issued by Murshidabad Medical College

and Hospital was collected and tendered by PW8 (exhibit

14). PW8 also collected the FSL report with regard to the

seized soil, wearing apparels of the victim and acid bottle.

He tendered such report during trial (Exhibit 15). The

seized articles received back from the Forensic Science

Laboratory, Kolkata under sealed packets were identified

by PW8 as MAT Exhibit-I, I/I, II, II/I, III, III/I and IV

respectively). On completion of investigation, PW8

submitted charge sheet being no. 240 of 2019 dated

27.08.2019 under section 326A of the Indian Penal Code

against the appellant. In his cross-examination, PW8

stated that the eastern side of the Veranda was used as

kitchen which contained window made of bricks with

gaps.

16. PW9 is the Senior Scientific Officer of Forensic

Science Laboratory, Belgachia. He stated that on

04.08.2019, the laboratory received four covers marked

Exhibit A,B,C, and D in connection with Bharatpur Police

Station case no. 175 of 2019 dated 07.07.2019 through

the Additional Chief Judicial Magistrate. He further stated

that the packet marked 'A' contained approximate fifty

grams reddish coloured dusty and sandy substance 'said

to contain some soil with acid stains'. The cover marked

'B' contained a portion of a brick bearing blackish stains

'said to contain acid stains'. The cover marked 'c'

contained a glass phial of capacity on approximate 100ml

(One hundred Ml.) fitted with a metallic cap with holes. A

paper label stating PHENOL (CARBOLIC ACID) I.P.

pasted on it and the glass phial was found empty. The

cover marked 'D' contained a multi coloured printed short

sleeved kamiz/frock. The upper black portion bore greyish

stains at places bearing smell like of phenol. It was said to

contain 'one printed churidar with acid stains'. On

examination, it was opined that the presence of any acid

substance could not be detected in the contents of Exhibit

marked 'c'. Presence of coercive carbolic acid (phenol) was

detected in the contents of Exhibits 'A', 'B' and 'D'. PW 9

also stated that it was further opined that collection of

carbolic acid (phenol) on human body could be a danger

for life. PW9 proved the report prepared under his

instructions and signature (Exhibit 15).

17. Upon closure of the evidence adduced on behalf of

the prosecution, the appellant was examined under

section 313 of the Code of Criminal Procedure. The

evidence and circumstances against the appellant as

evident from the evidence adduced on behalf of the

prosecution were explained to the appellant during such

examination. The accused claimed the allegations against

him as false and pleaded his innocence. He however

declined to adduce any defence witness.

18. At the conclusion of trial upon consideration of the

evidence on record and the examination of accused under

section 313 of the Code of Criminal Procedure, by the

impugned judgment of conviction, the appellant was

convicted. By the impugned order of sentence, the

appellant was sentenced to suffer imprisonment for ten

years and to pay a fine of Rs. 10,000/-(Rupees Ten

Thousand Only) for the offence punishable under section

326A of the Indian Penal Code. In default of payment of

fine, the appellant was directed to undergo further

imprisonment for six months.

19. The aforesaid judgment of conviction and order of

sentence has been challenged in the present appeal. The

appellant seeks to assail the impugned judgment and

order on the ground that as the appellant threw acid using

the Khupris (Holes of any wall) of the kitchen, it was not

possible to identify the perpetrator. It was also contended

that the occurrence took place in the evening and there

were houses beside the kitchen or the place of occurrence,

it was not possible on the part of the victim to identify the

appellant. It has further been argued that none of the

witnesses examined on behalf of the prosecution for

having seen the occurrence and none of them have

claimed having seen the appellant fleeing away.

20. The appellant has also assailed the impugned

judgment on the ground that the prosecution has not

proved that there was sufficient daylight at the relevant

time i.e. 6.30 pm enough to identify the appellant. None of

the witnesses saw the accused fleeing away from the place

of occurrence. No independent witness has been examined

by the prosecution. As such, according to the appellant,

the prosecution has not been able to prove the case

beyond all reasonable doubts and therefore, the appellant

is entitled to be acquitted.

21. On the other hand, it is the contended on behalf of

learned Advocate for the State that the testimonies of the

ocular evidence together with that of the supporting

documentary and other evidence, the prosecution has

proved that the appellant and appellant alone threw the

acid causing acid burn injuries on the person of the

victim. Hence, the impugned judgment and order does not

warrant any interference and the same is liable to be

affirmed.

22. The appellant is charged with voluntarily causing

hurt to the victim with acid. It is the case of the

prosecution that on the relevant date and time i.e. on

07.07.2019 at about 6/6.30 pm, when the victim went

inside her kitchen, the appellant threw acid causing

injuries on her face and chest.

23. It is fact, none of the witnesses examined on behalf

of the prosecution, except the victim (PW2), claimed

having seen the appellant throwing acid upon the victim or

fleeing away just after the incident. However, the victim

herself (PW 2), without any kind of ambiguity has named

the appellant as the perpetrator. She clearly stated that

when she went inside the kitchen to keep the jackfruit, the

appellant threw acid through the 'Khupris' (perforations)

in the wall of kitchen. Such story has been adequately

supported by other witnesses. The de-facto complainant

i.e. the father of the victim, though, not present at the

relevant time, has narrated the self same story derived

from PW1 and his wife PW4. PW5 has further stated that

she was reported by the victim that when the victim inside

to keep the jackfruit, she was called by the appellant.

24. PW4, the mother of the victim narrated the same

story by stating that her daughter went inside the

verandah used as kitchen to keep the jackfruit given by

her sister Sonai Bibi. Suddenly, she heard shouting and

going inside, she was informed by her victim daughter that

Jamat Sk. the appellant threw acid upon her. The said

Sonai Bibi (PW5) also supported the case of the

prosecution. She testified that she gave a jackfruit to the

victim which she went inside to keep it in the 'varandah'

used as kitchen. She suddenly heard the shouting of the

victim. Going there, she was informed that the appellant

Jamat Sk. called the victim and threw acid through the

holes of the kitchen wall.

25. PW2 has also stated in her examination that the

incident took place in the evening when it was about to

become dark meaning thereby that there was sufficient

daylight to things. Therefore, in view of such evidence on

record, the contention on the part of the appellant that the

witnesses could not have identified the appellant due to

insufficient light cannot sustain. On the contrary, there is

overwhelming evidence that the appellant was in fact,

sufficiently and unerringly identified at the time of

commission of the offence.

26. There appears no divergence in the story of the

prosecution in so far as all of them have supported the

versions outspread by the victim PW 2 to the effect that

the victim went inside the kitchen to keep the jackfruit

given by her aunt PW5 and the appellant threw acid upon

her through the perforated wall of the kitchen. The case of

the prosecution that the victim sustained acid burn

injuries on her face and neck is also not shaken. All the

witnesses have narrated the self same story

monotonously. Therefore, there appears nothing to

disbelieve such conjoint narration of the prosecution

witnesses.

27. Moreover, the incident is consistently said to have

taken place in the evening of 07.07.2019 at about 6/6.30

pm. It is unswerving statement of all the witnesses that

the victim was taken to Bharatpur BPHC after the

incident. PW 3, one of the doctors of Bharatpur BPHC has

stated that he examined the victim at 6.50 pm on

07.07.2019. The victim was referred by Bharatpur BPHC

to Kandi SD Hospital and she was examined by one of the

doctors, of Kandi SD Hospital, PW 6, on that very day i.e.

07.07.2019. The incident was then reported to Bharatpur

Police Station on 07.07.2019 itself at about 22.40 pm. The

time gap between these incidents and the expected time

taken in the medical treatment of the victim apparently

rules out any possibility of deliberation and afterthoughts

to implicate the appellant.

28. It has come out from the evidence on record that

victim sustained acid burn injuries on the face, neck and

chest. PW2, the victim stated that she sustained injuries

on her face and upper portion of her chest. PW 4, the

mother of the victim and PW 5, her aunt, stated in their

deposition that the victim sustained injuries by the acid

on her face and neck. The doctor who first examined the

victim in Bharatpur BPHC has stated, with reference to

the injury report prepared by him (Exhibit 3) that on

examination, he found acid/corrosive burn on the facial

region and some parts of neck region. According to him

the patient was in respiratory distress and blurred vision.

One of the doctors of Kandi SD Hospital who treated the

victim as ophthalmologist (PW 6) has stated that the

victim was admitted in Kandi SD Hospital with history of

acid burn over face and upper chest which were taken

care of by general surgeon. She was referred to him for eye

complains and on examination, he found the eyesight in

the right eye of the victim diminished with reference to the

injury report prepared by him (Exhibit 5). She was referred

to Murshidabad Medical College & Hospital.

29. Therefore, as it transpires, the account of injuries

evident from the medical evidence seems to be in quite

consonance with the testimony of ocular evidence led at

the trial.

30. It is well settled principle of law that where oral

evidence is convincing, reliable and trustworthy motive

behind the occurrence loses its relevance.

31. In the light of afore-gone discussions, we do feel

that the impugned judgment of conviction and order of

sentence are well founded on the basis of unshaken

testimony of ocular as well as documentary evidence and

deserve no interference. As such, the impugned judgment

of conviction and order of sentence dated July 14, 2020,

passed by Learned Additional Sessions Judge, Kandi,

Murshidabad in connection with Sessions Trial No. 02 (10)

of 2019 is hereby affirmed.

32. Accordingly, the instant appeal being Criminal

Appeal No. 227 of 2020 stands dismissed.

33. Period of detention suffered by the appellant during

investigation, enquiry and trial shall be set off from the

substantive sentence imposed upon the appellant in terms

of Section 428 of the Code of Criminal

Procedure.

34. Connected applications, if any, shall stand disposed

of.

35. Copy of the judgment along with Trial Court

Records be sent down to the appropriate court at once for

necessary compliance.

36. Urgent Photostat Certified copy of this order, if

applied for, be supplied expeditiously after complying all

necessary legal formalities.

[MD. SHABBAR RASHIDI, J.]

37. I agree.

[DEBANGSU BASAK, J.]