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2012 DIGILAW 331 (CHH)

SHESNATH v. STATE OF C. G.

2012-12-13

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 20.4.2011 passed by Additional Sessions Judge, Janjgir Champa, in Sessions Trial No. 125/2010 convicting the accused/appellant under Sections 324 and 304 (part II) I.P.C. and sentencing him to undergo rigorous imprisonment for two years with fine of Rs.2000/- u/s 324 and rigorous imprisonment for four years with fine of Rs.10,000/- u/s 304 (Part-II) IPC, plus default stipulations. 2. Facts of the case in brief are that on 1.3.2010 FIR Ex. P-8 was lodged by Bhagwat Prasad Kashyap (PW-6) alleging that on that day it was Holi festival and at about 12 noon when his brother Umesh (since deceased), Manoj (PW-7) and other persons were dancing near a temple, accused/appellant who was standing there carrying something in his hand, first abused his brother and other persons who were dancing and threatened them saying as to why they were creating nuisance. Thereafter, he threw acid at Umesh and his friends on account of which his brother and other persons started shouting that accused/ appellant had thrown acid on them. It is alleged that the incident was witnessed by himself, Damru Chandrapal Kahyap, Firatram Ratre and others. It is alleged that bum injuries were caused on the head, face, chest and stomach of deceased Umesh and injured Manoj. Thereafter, both of them were taken to hospital and then the report was lodged. Based on this FIR, offences under Sections 294, 506, 324 and 326 IPC were registered against the accused/appellant. Umesh was medically examined on the same day by Dr. N. Prasad (PW-4) at Sheorinarayan hospital vide report Ex. P-4. Manoj (PW-7) was also examined on the same day and by the same doctor and the medical report in respect of him is Ex.P-5. Looking to the serious condition of Umesh he was shifted to CIMS, BilasiJur and then to Raipur where he was admitted in Life Worth Hospital on 6.3.2010. In the hospital at Raipur he was medically examined by Dr. Jawahar Agrawal (PW -10) and complete record of the said hospital is Ex.P-15. On 10.3.2010 Umesh succumbed to the injuries sustained by him and information to this effect was sent to police station, vide Ex.P-16. Post mortem examination on the dead body of Umesh was conducted on 11.3.2010 by Dr. Jawahar Agrawal (PW -10) and complete record of the said hospital is Ex.P-15. On 10.3.2010 Umesh succumbed to the injuries sustained by him and information to this effect was sent to police station, vide Ex.P-16. Post mortem examination on the dead body of Umesh was conducted on 11.3.2010 by Dr. Ullhas Ganade (PW-3) and according to him cause of death was cardio respiratory arrest due to bum injuries and its complications. After investigation, charge sheet was filed on 16.8.2010 under Sections 294, 506, 324, 326 and 302 IPC. Court below however framed the charge against him under Section 294, 307 and 302 IPC. 3. In support of its case, prosecution has examined 16 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, accused/appellant also examined himself as (DW-1) in support of his case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that there is interpolation in the FIR and that the same is ante dated. He submits that offence under Section 326 IPC has been added against the accused/appellant subsequently and the copy of FIR was not forwarded to the nearest Magistrate immediately and it was forwarded on 5.10.2010. He further submits that Manoj (PW -7) has not supported the case of the prosecution and statement of Bhagwat Prasad Kashyap (PW-6) being brother of deceased Umesh and as such an interested witness, requires close scrutiny. According to the counsel for the accused/ appellant, statement of Bhagwat Prasad Kashyap (PW-6) has not been supported by any independent witness and as such it loses its reliability. He further submits that there is no evidence on record to show as to from where the acid was brought by the accused/appellant and no seizure of the same has been made by the prosecution and thus in the absence of this important evidence, accused/ appellant cannot be convicted. Counsel for the accused/appellant further submits that there was no motive on the part of the accused/appellant to throw acid at Umesh and Manoj and he has been falsely implicated in the case. Counsel for the accused/appellant further submits that there was no motive on the part of the accused/appellant to throw acid at Umesh and Manoj and he has been falsely implicated in the case. He further submits that though the incident had taken place in broad day light, no independent witness has supported the case of the prosecution. He submits that accused/ appellant was though available in the village itself, he was arrested only on 26.5.2010 and this inordinate delay in making arrest has not been properly explained by the prosecution. He submits that if the accused/appellant was absconding, the proceedings under sections 82 and 83 of the Code of Criminal Procedure should have been initiated against him. According to him, at the time of filing of challan this fact was not mentioned by the police that the accused/ appellant was absconding. Counsel for the accused/appellant submits that the injuries sustained by deceased Umesh were simple in nature and therefore at the most accused/appellant can be convicted under Section 323 IPC and as he is in jail since 25.5.20 10 he may be set free by reducing the sentence to the period already undergone by him. He further submits that material witness like Patwari has not been examined to prove whether from the place of incident the eyewitness could have seen the occurrence. According to the counsel for the accused/appellant, though according to the case of prosecution, deceased Umesh was hospitalised in CIMS, no such medical papers have been produced by the prosecution. He submits that there are other technical flaws where crime number has not been mentioned in documents of Ex. P-24, P-25 and other relevant documents. Most importantly, according to him, the accused/appellant by now is aged about 79 years and therefore further keeping him in jail would adversely affect his life and the prosecution is not going to gain anything. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that Bhagwat Prasad Kashyap (PW-6) has duly supported the case of the prosecution. He submits that this witness cannot be ignored simply because he is the brother of the deceased Umesh and as such an interested witness. He further submits that to some extent Manoj (PW-7) has also supported the case of the prosecution. He submits that this witness cannot be ignored simply because he is the brother of the deceased Umesh and as such an interested witness. He further submits that to some extent Manoj (PW-7) has also supported the case of the prosecution. According to the State counsel, during trial an attempt was made by the defence to get Manoj (PW-7) declared hostile and his affidavit Ex.D-1 was obtained but he has categorically stated that no such affidavit was given by him. Other discrepancies allegedly pointed out by the defence, according to the State counsel, are of no help to the accused/appellant because no prejudice has been caused to him. According to him, most importantly, deceased was subjected to acid attack, statement of Bhagwat Prasad Kashyap (PW-6) has been-duly supported by the medical report. He submits that learned Court below has already taken a lenient view while convicting the accused/appellant u/s 304 (part-II) IPC and therefore the judgment impugned calls for no interference. 7. Heard counsel for the parties and perused the material available on record. 8. Bijendra Kumar Kashyap (PW-1) - a child witness aged about 15 years has stated that he was not aware as to how the incident had taken place and thus he has been declared hostile. Firat Ram Ratre (PW-2) has also not supported the case of the prosecution and has been declared hostile. Dr. Ullhas Ganade (PW-3) is the witness who conducted post mortem examination on the body of deceased Umesh and gave his report Ex. P-3 stating that he found number of burn injuries on his body and that cause of death was cardio respiratory arrest due to burn injuries and its complications. Dr. N. Prasad (PW4) is the witness who medically examined the deceased at Shivrinarayan Hospital on 1.3.2010 and gave his report Ex. P-4 opining that he had succumbed burn injuries up to the extent of 50%. He also examined Manoj vide Ex. P-5 and found burn injuries at five places. Umend Ram Kashyap (PW-5) is the witness who registered merg Ex. P-7. Bhagwat Prasad Kashyap (PW-6) the eyewitness to the incident has stated that on 1.3.2010 when he was near Radha Krishna Temple, number of persons were celebrating Holi and playing colours. Accused/appellant was carrying acid in a bottle and at that time dance was being performed in which Manoj and others were also participating. P-7. Bhagwat Prasad Kashyap (PW-6) the eyewitness to the incident has stated that on 1.3.2010 when he was near Radha Krishna Temple, number of persons were celebrating Holi and playing colours. Accused/appellant was carrying acid in a bottle and at that time dance was being performed in which Manoj and others were also participating. Accused/appellant asked them as to why they were creating nuisance and saying so threw acid at deceased Umesh and his friend Manoj (PW-7) as a result of which they sustained burn injuries on various parts of their body. They were shifted to police station, then to hospital at Shivrinarayan and then to CIMS Bilaspur but considering the serious condition of Umesh he was taken to Raipur where he succumbed to the injuries sustained by him on 10.3.2010. Thereafter, FIR Ex. P-8 was lodged, seizure of burnt pant of the deceased was made vide Ex. P-9. In the lengthy cross-examination, this witness remained firm to what he has stated in his examination-in-chief. Manoj Kumar Kashyap (PW7) has stated that he knew deceased Umesh and that on the date of incident when he was dancing with the deceased and other friends near Radha Krishna Temple, someone had thrown acid at them but he could not see him. On account of the acid being thrown, he, his friend Umesh (since deceased) and one boy Shiva sustained injuries and at that time Bhagwat (PW-6), Damaru, Chandrika, Chandrapal and other persons were also there. He has stated that as they were performing dance, someone had thrown acid at them and later when there was commotion he came to know that it was the accused/appellant who had thrown acid. Thereafter, he was taken to the police station and then to hospital. Subsequently, according to this witness, Umesh succumbed to the injuries sustained by him. Police seized a burnt full pant, T shirt, handkerchief from him under Ex. P-10 and spot map was prepared by the police vide Ex.P-11. He has admitted his signature on affidavit Ex. D-1 and when a question was put to him by the Court, he has admitted that affidavit Ex. D-1 was prepared by the accused/appellant. Then he has stated that he was not aware as to by whom it was prepared. On further being questioned by the Court, this witness has stated that the incident had taken place but not as mentioned in Ex. D-1. Affidavit Ex. D-1 was prepared by the accused/appellant. Then he has stated that he was not aware as to by whom it was prepared. On further being questioned by the Court, this witness has stated that the incident had taken place but not as mentioned in Ex. D-1. Affidavit Ex. D-1 reveals that deceased Umesh and one Chandrapal were having some round-shaped object containing something like colour and while accused/appellant was breaking open the door, it got burst and fell over his body as well as that of Umesh. It further reveals that on account of something like acid being mixed with the colour, the incident had taken place which was totally accidental and there was no fault on the part of accused/appellant and that he has been falsely implicated by Bhagwat (PW-6) on account of enmity. Damarudhar Maina (PW -8) another eyewitness has though admitted the incident of acid having been thrown and that Umesh and others suffered burn injuries, has not stated that he had seen the person throwing acid. According to him, he came to know subsequently that it is the accused/appellant who had thrown acid but he himself did not see him throwing acid. He is also the witness to seizure of burnt clothes vide Ex. P-9 and P-10. Chandrika Prasad Tiwari (PW-9) is the witness to seizure of bottle, glass and burnt clothes made under Ex. P-9, P-10 and P-13 as well as memorandum of accused/appellant Ex. P-14. Dr. Jawahar Agrawal (PW-10) is the Director of Life Worth Hospital Raipur who has stated that on 6.10.2010 deceased Umesh was admitted in the hospital after being referred due to his serious condition and that number of burn injuries were found on his body which he succumbed to on 10.3.2010. This witness has also proved the documents vide Ex. P-15 and then information to the police was given vide Ex. P-16. Ram Chandra Kashyap (PW-11) has not supported the case of the prosecution and has been declared hostile. Chandra Pal Kaushik alias Chandu (PW-12) has stated that on the date of incident when he was at his home, elder brother of Umesh namely Janak came there and took his motorcycle saying that someone had thrown acid on Umesh. Then he and Janak along with some other persons shifted Umesh to hospital. At this stage, this witness also turned hostile and has not supported the case of the prosecution. Then he and Janak along with some other persons shifted Umesh to hospital. At this stage, this witness also turned hostile and has not supported the case of the prosecution. M.D. Anant (PW-13) is the witness who made seizure of clothes vide Ex.P-10 and recorded statement of some of the witnesses under Section 161 of the Code of Criminal Procedure. Janak Ram Kashyap (PW-14) is the witness who has proved notice of inquest Ex. P-17 and inquest Ex. P-18. R.K. Shukla (PW-15) is the investigating officer who has duly supported the case of the prosecution. Hiralal Ekka (PW-16) is the witness who recorded FIR Ex. P-8, forwarded the information to the Magistrate vide Ex. P-23 and referred Umesh for medical examination vide Ex. P-24 and Manoj vide Ex. P-25. He has stated that FIR was immediately forwarded to Magistrate but he cannot say why it reached there on 3.3.2010. Accused/appellant has examined himself as DW-1 and stated that he has been falsely implicated in the case and that earlier also he was threatened by Bhagwat and his brothers. 9. Minute examination of the material available on record, evidence of Bhagwat (PW-6) and injured Manoj (PW-7) as well as the medical report go to show that it is the accused/appellant herein who threw acid on the deceased and injured Manoj as a result of which they received number of injuries on various parts of their body such as head, face, chest and stomach of deceased Umesh and Manoj. Evidence of the witnesses also shows that looking the serious condition of Umesh he was shifted to CIMS, Bilaspur and then to Life Worth hospital at Raipur on 6.3.2010 where he died on 10.3.2010. The affidavit sworn by injured Manoj marked as Ex. D-1 stating that due to animosity accused/ appellant has been falsely implicated in the case by Bhagwat (PW-6) is of no help to the accused/appellant because in the incident Umesh has already succumbed to the bum injuries sustained by him as a result of acid attack made by the accused/appellant. Moreover, record goes to show that when a question was put to him by the Court, he has admitted that affidavit Ex. D-1 was prepared by the accused/appellant. He has further stated that he was not aware as to by whom it was prepared. Moreover, record goes to show that when a question was put to him by the Court, he has admitted that affidavit Ex. D-1 was prepared by the accused/appellant. He has further stated that he was not aware as to by whom it was prepared. On further being questioned by the Court, this witness has stated that the incident had taken place but not as mentioned in Ex. D-1. There is no force in the argument of the counsel for the accused/appellant that the statement of Bhagwat (PW-6) being brother of Umesh (since deceased) cannot be made a basis for conviction, for the reason that normally the close relatives of the deceased or injured as the case may be, should not be considered as interested witnesses and if their testimony is supportive of prosecution version it can always be given due weightage to arrive at a particular conclusion. Since in the case in hand witness Bhatwat (PW-6) who was the brother of Umesh has supported the case of the prosecution in categorical terms, his testimony cannot be discarded merely on account of his being the brother of the deceased. Other arguments on technical points such as non availability of the record of CIMS Bilaspur where deceased Umesh was shifted for treatment and that the accused was not arrested on the same day though he was in the village itself, also have no force because if on material particular there is sufficient evidence on record, such minor technicalities should not create a roadblock and have to be ignored. Further, there is no force in the argument of the counsel for the appellant that by now the accused/appellant is in his advanced age and therefore a lenient view may be taken against him because in such a gruesome acid attack by the accused/appellant causing severe burn injuries to deceased Umesh and injured Manoj on various parts of their body, his convicting under Section 304 (Part-II) by the Court below itself is indicative of leniency having been extended to him and therefore, the submission for taking a further lenient view against him being unacceptable is turned down. Though there are so many judicial pronouncements to the effect that sentence should always be commensurate to the act having been committed by the accused yet the Court below has imposed the sentence of only four year imprisonment U/S 304 (part-II) which, sorry to say, is extremely inadequate. However, since there is no appeal for enhancement of the sentence, this Court finds itself helpless to go ahead. 10. In view of the aforesaid discussion, this Court is of the considered opinion that the conviction of the accused/appellant as described above is based on the cogent and clinching evidence of the witnesses and therefore calls for no interference in this appeal. Appeal being without merit is liable to be dismissed and is dismissed as such. Appellant is already in jail and therefore no order regarding his surrender etc. is required. Appeal Dismissed.