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2014 DIGILAW 2862 (ALL)

IMTIYAZ v. STATE OF U. P.

2014-09-15

RANJANA PANDYA

body2014
Hon'ble Mrs. Ranjana Pandya,J. This revision has been preferred against the Judgment and order dated 11.5.2010 passed by the Additional Sessions Judge, Court No.1, Mahoba in Criminal Appeal No. 9 of 2010, Imtyaz Vs. State of U.P. and others, confirming the Judgment and order dated 22.3.2010 passed by the C.J.M. Mahoba in Criminal Case No. 2094 of 2008, State Vs. Imtyaz, under Sections 326, 452 I.P.C., Police Station Kotwali, District Mahoba whereby the revisionist as convicted under Section 326/452 I.P.C. and sentenced to undergo seven years' rigorous imprisonment and to pay fine of Rs.1,00,000/- and four years' rigorous imprisonment and to pay fine of Rs.20,000/- respectively with default stipulation. Out of the amount of fine, compensation was also awarded to three victims. 2. The prosecution case in brief is that the accused Imtyaz is son-in-law of complainant Rehana and Rosy is daughter of the complainant. Rosy was married to Imtyaz. On 3.8.2008 when the complainant Rehana, her daughter Rosy, niece Nikki and Rosy's daughter Alshifa along with other members of the family were sleeping, all of a sudden at about 12 a.m., accused Imtyaz entered the house of the complainant and threw acid on the daughter of the complainant Rosy, her niece Nikki and Rosy's daughter Alshifa and on their hue and cry the accused fled away from the house. As regards the motive for the offence is concerned, it has been mentioned in the first information report that a case under Section 125 Cr.P.C. was pending between Rosy and the accused and the accused had threatened Rosy that if she would not compromise in the petition under Section 125 Cr.P.C., he would not spare her. 3. After lodging of the F.I.R. investigation ensued and culminated into charge sheet under sections 452, 326 I.P.C. against the accused. Charges were framed against the accused under Sections 452, 326 I.P.C. who pleaded not guilty and claimed trial. 4. The prosecution had examined complainant Rehana (P.W.1), her injured daughter Rosy (P.W.2), Dr. R.B. Arya (P.W.3), Retired S.I. Har Narain (P.W. 4), Constable Ajay Singh ( P.W. 5) and injured Nikki (P.W. 6). 5. The accused was examined under Section 313 Cr.P.C. who denied all the incriminating circumstances appearing against him in the prosecution evidence and pleaded false implication. The accused examined D.W. 1 Kallu in defence. 6. R.B. Arya (P.W.3), Retired S.I. Har Narain (P.W. 4), Constable Ajay Singh ( P.W. 5) and injured Nikki (P.W. 6). 5. The accused was examined under Section 313 Cr.P.C. who denied all the incriminating circumstances appearing against him in the prosecution evidence and pleaded false implication. The accused examined D.W. 1 Kallu in defence. 6. The trial court, after hearing both the sides as also assessment of the oral and documentary evidence, vide Judgment dated 22.3.2010, convicted and sentenced the revisionist as noted in para-1 of the judgment above. 7. Aggrieved the accused filed Criminal Appeal No. 9 of 2010, which was dismissed on 11.5.2010 and its judgment is under challenge in the present revision before this Court. 8. I have heard the learned counsel for the revisionist, learned A.G.A. and perused the record. 9. It is settled principle of law that the revisional jurisdiction is not as wide as the appellate jurisdiction and under the former jurisdiction, the High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not disclose any offence. As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely. 10. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraise the evidence. The Hon'ble the Apex Court in A.I.R. 1999 SC 981 State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done". 11. In the case of Jagannath Chaudhary Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done". 11. In the case of Jagannath Chaudhary Vs. Ramayan Singh A.I.R. 2002 SC 2229, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly in Munni Devi Vs. State of Rajasthan and others A.I.R. 2002 SC 107 it was held by the Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do". 12. In another case of State of Karnataka Vs. Appa Balu Ingale and others, A.I.R. 1993 SC 1126 it has been held by the Hon'ble Apex Court that " generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or unless there is any perversity." 13. As far as the F.I.R. is concerned, a perusal of the lower court record shows that the occurrence took place on 3.8.2008 at 12 O'clock in the night whereas the report was lodged on 4.8.2008 at .30 a.m., the distance of the police station from the place of occurrence being 1 km. It will not be out of place to mention here that there were three persons, who had sustained acid burns. Thus, the crime was promptly reported to the police which rules out chances of embellishment or concoction. 14. As regards motive, it is well settled principle of law that if there is direct evidence of the crime, motive looses its value. It is not possible to measure the extent of feelings, sentiments and reactions of someone, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a give circumstance. It is not possible to measure the extent of feelings, sentiments and reactions of someone, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a give circumstance. The Hon'ble Apex Court in the case of Ranganayaki vs. State, (2004) 12 SCC 521 , has held as under: " The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered." 15. In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant: "There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved." 16. Referring to the case of Nanhoon and others vs State of U.P.2012 (77) ACC 125, learned counsel for the revisionist has argued that if the motive for crime is not established or the motive is very week it may be of no importance. However the Hon'ble Apex Court in Mangaru and others vs. State of U.P., 2008 (62) ACC 40, has laid down that motive may be of importance in the cases of circumstantial evidence and it is well settled principle of law that in the case of direct evidence, motive looses its value. 17. In the instant case right from the inception of the F.IR. the complainant has specifically stated that an application under Section 125 Cr.P.C. was filed by her daughter Rosy, which was pending against the accused Imtyaz in which he had asked her for compromise else he would throw acid on Rosy. 17. In the instant case right from the inception of the F.IR. the complainant has specifically stated that an application under Section 125 Cr.P.C. was filed by her daughter Rosy, which was pending against the accused Imtyaz in which he had asked her for compromise else he would throw acid on Rosy. Coming to the oral evidence on this point, Rehana (P.W.1) has specifically stated that the accused had threatened Rosy either to compromise in the case she had filed for maintenance otherwise he would throw acid on her. In cross-examination, fishing inquiries have been made but the statement of this witness with regard to the real incident is consistent, cogent, clear and reliable. 18. The motive for the crime has been duly proved by P.W.-2 Rosy, who being the wife of the accused was his main target and was badly injured in the incident. She has specifically stated that the accused had threatened her to compromise in the petition under Section 125 Cr.P.C. otherwise he would throw acid on her. Thus, the motive set forth in the F.I.R. has been proved by the prosecution. 19. It has been argued on behalf of the revisionist that all the witnesses are related and interested witnesses, therefore, their evidence cannot be relied upon. It is not the law that the testimony of related or interested witness should be thrown out of board, rather they would be the last person to screen the real offender and falsely rope in an innocent person in the case. In the instance case the witnesses of fact including the complainant are not only interse related with each other but each of them is equally closely related with the accused-revisionist. The prosecution has examined two injured witnesses out of the three, namely Rosy PW-2 (wife of the revisionist) and Nikki PW-6 (niece of the complainant i.e. sister-in-law of the revisionist). Thus, they had apparently no animus to falsely depose against the revisionist. However, it is trite law that testimony of related and interested witness should be closely scrutinized with care and caution. 20. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. 20. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it is not permissible for the Court to discard the statements of such related or friendly witnesses. 21. Law on the subject is thus, clear that in reference to appreciation of evidence of interested witnesses, version of interested witness cannot be thrown out but the same has to be examined carefully before accepting the same. 22. Keeping the above principles in mind, the statement of witnesses are being examined. 23. The injured witnesses, namely, Rosy, Nikki, and eye witness Rehana have categorically stated that the accused poured acid on all the three injured, i.e., Rosy, Nikki, Alshifa. As far as the evidence of P.W.1 Rehana, P.W. 2 Rosy and P.W. 3 Nikki are concerned, their evidence cannot be disbelieved because considering the time and place of the incident, in fact they are natural witnesses as their presence inside the house cannot be doubted and the presence of any outsider at the dead hour of night is totally ruled out. Besides this, being the injured witness, presence of of Rosy PW-2 and Nikki PW-6 cannot be questioned. All the three lady injured namely Nikki, Rosy and Alshifa were medically examined by the doctor, who had unequivocally opined that they have suffered acid burn injuries. 24. I have carefully examined the medical reports of all the injured which have been duly proved by Dr. Arya PW-3. I need not burden this judgment by reproducing the injury reports, as they have been noted by the Courts below in their respective judgments. The injuries found on the person of the injured fully corroborate the prosecution story as contained in the FIR and in the statements of witnesses of fact namely PW-1, PW-2 and PW-6. Thus the direct evidence of the crime is fully corroborated by the medical evidence and there is no inconsistency therein, rather they compliment each other. 25. The injuries found on the person of the injured fully corroborate the prosecution story as contained in the FIR and in the statements of witnesses of fact namely PW-1, PW-2 and PW-6. Thus the direct evidence of the crime is fully corroborated by the medical evidence and there is no inconsistency therein, rather they compliment each other. 25. On close scrutiny of testimony of both the witnesses, namely Rosy PW-2 and Nikki PW-6, it transpires that there are no material contradictions therein. They are victims of acid attack and they including the complainant had ample opportunity to identify the revisionist, who was not a stranger to them. Thus, in the absence of any adverse circumstance or material contradiction in the testimony of witnesses of fact, the courts below have not at all erred in placing reliance on their testimony. 26. The counsel for the revisionist has placed reliance upon evidence of D.W.1 Kallu Khan, who has tried to give negative evidence. In my opinion such evidence is of little value as compared to the positive evidence of Rosy, Rehana and Nikki. In cross-examination D.W.1 Kallu has admitted that he came to know from the neighbours that Imtyaz had thrown acid on Rosy but, in the next breadth trying to mend himself, he stated that Imtyaz must have thrown acid on Rosy. He had also deposed that he had heard that Rosy was burnt due to acid. Thus, this witness has virtually supported the prosecution case. 27. Lastly the learned counsel for the revisionist has argued that the accused is in jail since the time of his arrest in the trial Court and has served major part of the sentence, so he may be released on sentence already undergone by him. I have seriously taken into consideration the submissions made by learned counsel for the revisionist in this behalf. 28. As far as reduction of sentence is concerned, the imposition of appropriate punishment is the manner in which the Court responds to the society's call for justice against the criminal. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. In the case of Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujarat (2009) 7 SCC 254 , a three-Judge Bench of the Apex Court has observed as follows: "99....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong." In this case, the court further goes to state that meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of society. 29. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734 , while discussing the concept of appropriate sentence, this Court expressed that: "It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. 29. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734 , while discussing the concept of appropriate sentence, this Court expressed that: "It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored." 30. Recently, the Apex Court in the case of Gopal Singh Vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:- "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence............" 31. Reverting back to the medical reports of Nikki, Rosy and Alshifa, it would be very important to note that Nikki was a fifteen year old young girl at the time of incident and she had sustained acid injury on the neck, right arm & forearm and right thigh. Rosy, the wife of the accused had suffered acid burn injuries on her face, scalp, left side of neck to right side chest, left arm & forearm and right arm & forearm, back and right thigh. Innocent Alshifa, who was only eleven months old at the time of incident, was the infant daughter of the accused and Rosy. What was her fault that the accused did not spare her also in as much as her face, chest, lower limbs and multiple places over the left and right limbs anterior aspect were also burnt by acid. The conduct of the accused and the way in which the offence was committed in predetermined manner disentitles the accused-revisionist for any sympathy or leniency from the court. The learned Magistrate has directed that out of the fine of Rs.1,00,000/-, injured Rosy was to be paid Rs.60,000/- while Alshifa and Nikki were to get Rs.10,000/- (each). Thus, there is absolutely no ground to reduce the sentence of imprisonment or the fine imposed on the accused. 32. The learned Magistrate has directed that out of the fine of Rs.1,00,000/-, injured Rosy was to be paid Rs.60,000/- while Alshifa and Nikki were to get Rs.10,000/- (each). Thus, there is absolutely no ground to reduce the sentence of imprisonment or the fine imposed on the accused. 32. Thus, in view of what has been stated above, there is no ground to interfere with the impugned judgment and orders passed by both the Courts below and this revision is liable to be dismissed. 33. Accordingly, the revision is hereby dismissed. The revisionist is in jail, as he has not been enlarged on bail during the pendency of the revision by this Court. He will serve out the remaining part of his sentence of imprisonment and would also pay fine as directed by the trial Court. 34. Let certified copy of the Judgment be sent to the trial court for ensuring compliance which should be reported to the court within eight weeks. ——————