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2003 DIGILAW 658 (JHR)

Emlen Henry v. State Of Bihar

2003-06-16

HARI SHANKAR PRASAD

body2003
JUDGMENT Hari Shankar Prasad, J. 1. This criminal appeal is directed against the judgment dated 7.12.1996 and order of sentence dated 10.12.1996 passed in Session Trial No. 34/86 whereby the learned 1st Additional Sessions Judge, Dhanbad has been pleased to convict the appellant No. 1 Emlen Henry under Section 324, IPC and Appellant No. 2 Ramchandra Prasad under Section 324 read with Section 34, IPC and sentenced them to undergo RI for two years. 2. The prosecution case in brief is thai informant alleged that his wife Emlen Henry was having illicit relationship with appellant Ram Chandra Prasad, a clerk in the hospital. At about 12 noon the inform-ant learnt that his wife was eloping with Appellant No. 1 Ram Chandra Prasad. The informant followed them on motorcycle and when they reached near Guhi Bandh, he saw his wife and Appellant No. 2 Ram Chandra Prasad going on a rickshaw towards Katras. The informant stopped rickshaw whereupon his wife took out a wire hunter from her waist and tried to assault the informant. Soon thereafter the Appellant No. 2 Ram Chandra Prasad gave one bottle containing acid to Emlen Henry who sprinkled the same on his person due to which he received burn injuries on his eyes, head, face, right hand and shoulder. In the meantime, many persons assembled and sprinkled water and saved the life of the informant. The informant has further alleged that in the meantime he disclosed the occurrence to his brother-in-law Santosh Kumar Das, Sister Enula Bibha Das and their neighbour Miss April Horo; they brought the informant to his residence where his wife also followed and again she poured acid on his person. On his hulla, neighbours came and brought him to Kilatand Hospital and from there he was referred to Central Hospital, Dhanbad for treatment and there his statement was recorded by S.I.S.S. Prasad at Katras P.S. on 14.5.1983 at about 4.00 p.m. On the basis of fardbeyan of the informant, FIR was drawn up and this case was instituted and investigation was done and after investigation charge sheet was submitted against the accused persons and cognizance was taken in the case and case was committed by the Court of Judicial Magistrate, Chas and subsequently the case was committed to the Court of sessions and charges were framed and trial proceeded. In course of trial, witnesses were examined and on the basis of oral and documentary evidence of both the sides, learned Court below came to a finding that the appellants are guilty and accordingly convicted them and sentenced them to undergo RI as aforesaid. 3. The judgment dated 7.12.1996 has been assailed on the ground that prosecution case is based on the fact that Appellant No. 1 Emlen Henry was having illicit relationship with Appellant No. 2 Ram Chandra Prasad whereas PW 1 who is sister of the informant has stated that there was harmonious relationship between both husband and wife, informant and Appellant No. 1 respectively. The judgment has further been assailed on the ground that PW 1, PW 2 and PW 3 have been found to be eye-witness by the learned Court below, but from the FIR it will appear that they had not seen the occurrence; there has been inordinate delay in lodging of the FIR which by itself makes the prosecution case doubtful. The judgment has further been assailed on the ground that Appellant No. 1 on 13.5.1983 at about 7.00 p.m. lodged an FIR and after 22 hours of the lodging of the FIR the instant FIR has been lodged by the informant of this case and so the instant case is a counter-blast to the case lodged by the Appellant No. 1. Statement of Santosh Kumar Das (PW 2) is hit by Section 162, Cr PC as he says that his evidence has been recorded by IO on the same day of occurrence and statement of PW 2 recorded on the same day, has not been treated as FIR. Not a single eye-witness is there and those who have given statement before police having claimed themselves to be eye-witnesses. 4. PW 1 is Smt. Enula Bibha Das, she is sister of the informant and she has supported the prosecution case. PW 2 is Santosh Kumar Das, who is brother-in-law of the informant and husband of PW 1. PW 3 is April Horo. PW 4 is Bilasi Barla, who is maid servant in the house of the informant, PW 5 informant himself and PW 6 is doctor Mrs. Urmila Rani Sexena. She has examined A.J. Henry, the informant (PW 5) on 13.5.1983 at Regional Hospital, Bharat Coking Coal Limited, Katras. PW 7 is Dr. PW 3 is April Horo. PW 4 is Bilasi Barla, who is maid servant in the house of the informant, PW 5 informant himself and PW 6 is doctor Mrs. Urmila Rani Sexena. She has examined A.J. Henry, the informant (PW 5) on 13.5.1983 at Regional Hospital, Bharat Coking Coal Limited, Katras. PW 7 is Dr. I.A. Khan, who has stated that informant (PW 5) was admitted in the Central Hospital, Dhanbad on 13.5.1983 and was discharged on 6.6.1983. He had not examined the informant. PW 8 is formal witness who has proved the prescription of Dr. Urmila Rani Sexena and Dr. Bidya Bhushan Prasad as well as the prescription of Dr. Rajendra Prasad. 5. I have gone through the evidence of all these witnesses and they have supported the case that Appellant No. 1 Emlen Henry assaulted the informant with belt and poured acid on his body and bottle of acid was provided by the Appellant No. 2 Ram Chandra Prasad. Doctor has also found the injuries on his person. Ext.-1 is a signature of PW 5 on fardbeyan, Ext.-2 to 2/1 are two injuries reports dated 13.5.1983 and 18.5.1983 respectively, Ext.-3 is discharge certificate by, which informant A.J. Henry (PW 5) was discharged on 6.6.1983, Ext.-4/1 is certified copy of the decree in divorce Suit No. 77/82, Ext./-5 is certified copy of the judgment in first appeal 107/85 of High Court, Ext.-6 is certified copy of the order sheet of matrimonial Suit No. 1/88, Ext.-7 is certified copy of final report in G.R. Case No. 445/83, Ext.-8 is four prescriptions and Ext.-9 to 9/1 are deposition of Emlen Henry and Ram Chandra Prasad in G.R. Case No. 445/83. 6. 6. On a careful scrutiny of the facts and circumstances of the case and also of the deposition of the witnesses and of documentary evidence, it appears that appellants were going by rickshaw to a different place from the hospital and informant namely, A.J. Henry, inquired about the Appellant No. 1 Emlen Henry who was his wife and when he came to know that she has gone with Appellant No. 2 Ram Chandra Prasad, then he followed them and in course of following them, he took lift from the motorcyclist and reached near them and tried to stop their rickshaw and evidence has come to the effect that Appellant No. 1 Emeln Henry was provided a bottle containing acid by Appellant No. 2 Ram Chandra Prasad and she sprinkled that acid on the face of the informant. The question is that the Appellant No. 1 Emlen Henry had no grudge against her husband and she was going with Appellant No. 2 Ram Chandra Prasad and it was informant who was dissatisfied with the conduct of the Appellant No. 1 Emlen Henry who was his wife and, therefore, it appears that this is informant who being disgusted with the conduct of the Appellant No. 1 Emlen Henry wanted to teach a lesson and it is he who brought the bottle containing acid with him because normally conduct of a person in the facts and circumstances could be like this. Appellants were going by rickshaw and there was no occasion for them to carry bottle and belt because they were not going in search of informant, therefore, there was no occasion for them to be armed with these weapons but it is the informant who had grievance against his wife. These facts are clear from the fact that the Appellant No. 1 Emlen Henry filed a divorce suit, which was contested by the informant and ultimately Appellant No. 1 Emlen Henry lost the divorce suit. The Appellant No. 1 Emlen Henry filed a criminal case immediately after the occurrence but in that case. Final Form was submitted and the informant lodged an FIR after some delay of two days but he maneuvered the things otherwise and got the things in his favour. Most of the witnesses are near relatives of the informant such as PW 1 is his sister and PW 2 is his brother-in-law. Final Form was submitted and the informant lodged an FIR after some delay of two days but he maneuvered the things otherwise and got the things in his favour. Most of the witnesses are near relatives of the informant such as PW 1 is his sister and PW 2 is his brother-in-law. PW 4 is his maid servant and PW 5 is informant himself and PW 6 and PW 7 are doctors who are not eye-witnesses to the occurrence. PW 8 is a formal witness. So on the basis of these piece of evidence, both the appellants have been held guilty under Section 324; IPC and convicted and sentenced to undergo RI as above. On the other hand, Ext.-7. which is a certified copy of the final report in G.R. Case No. 445/83 and Ext.-9 to 9/1 are deposition of Appellant No. 1 Emlen Henry and Ramu Mahto in G.R. Case No. 445/83. These facts go to show that immediately after the occurrence she lodged, FIR against her husband. In her deposition, which has been filed on behalf of the prosecution marked as Ext.-9, she has stated that her husband assaulted her and her husband sprinkled acid on her face and she sustained injuries by acid thrown by her husband. 7. From the perusal of Ext.-A it appears that injury report and case sheet of the Appellant No. 1 Emlen Henry who was described as accused in Criminal Case 34/86 was not traceable in the hospital but on perusal of Ext.-B which is certified copy of order sheet dated 18.5.1983 and 19.5.1983 and from perusal of order sheet dated 19.5.1983 it appears that the Appellant No. 1 Emlen Henry was arrested by IO and forwarded to the Court and from the perusal of the order sheet of that date it appears that she had some injury on her person. It also became clear from the perusal of Ext.-A that there is no denial that Appellant No. 1 Emlen Henry was never admitted in the hospital but there is a report that injury report and the case sheet is not available in the hospital and, therefore, in the facts and circumstances of the case, it appears that it is actually informant who out of annoyance did the occurrence, manufactured the evidence in his favour and tried to suppress the evidence that could have been available in favour of the appellants. In the facts and circumstances of the case, I have no doubt in my mind that from the facts as alleged in the FIR and from the facts as per evidence of witness given in the case, this cannot be the act of the appellants that Appellant No. 2 Ram Chandra Prasad gave bottle containing acid to Appellant No. 1 Emlen Henry for sprinkling the same on the informant and that she assaulted the informant. 8. In that view of the matter, this appeal is allowed and both the appellants, namely, Emlen Henry and Ram Chandra Prasad are acquitted of the charges levelled against them. They are also discharged from liability of the bail bonds if any.