JUDGMENT : 1. Heard Sri. M.J. Akhtar, learned counsel for the appellant no.4, Sri G.P. Singh, learned A.G.A. and perused the record 2. This appeal has been preferred against the judgment and order dated 04.04.1985 passed by 5th Additional and Sessions Judge, Ghaziabad in S.T. No. 413 of 1983 (State vs. Jabbar and others) whereby the accused Peeru, Jabbar, Shabban have been found guilty under section 148 and 326 IPC and they have been convicted. The accused Gaffar and Nanva have been found guilty under section 147 and 326 IPC read with section 149 IPC and they have been convicted. The accused Peeru, Jabbar and Shabban have been sentenced under section 148 IPC with one year R.I. each; under section 326 IPC five years R.I. each, Accused Gaffar, Nanva have been sentenced one year R.I. each under section 147 IPC and three years R.I. each under section 326 read with 149 IPC. All the sentences are directed to run concurrently. 3. Out of the above accused-appellants, accused-appellant no.1, Peeru, accused-appellant no.2 Jabbar, accused-appellant no.3 Shabban and accused appellant no. 5 Nanva have died and their appeals have been abated vide order dated 11.07.2019. Therefore, the appeal of accused-appellant no.4 Gaffar remains for consideration of this Court. 4. The prosecution case as per FIR is that on 20.9.1983 at about 2.30 P.M. when informant Abdul Waheed had gone to see cinema in Jaina Talkies Hapur with Shahabuddin @ Sabu (PW1) and was sitting in the class chargeable with Rs.4.00, beside them other persons were also sitting. The news reel was going on. Light was also on. All of a sudden, the accused-appellants, who belonged to the Mohalla of Shahabuddin @ Sabu, out of whom appellants, Peeru, Jabbar and Shabban were having container in their hands, rest of them were empty handed. Nanva and Gaffar instructed “Tejab Dalo Sabu aur Waheed Par”. Throw acid on Sabu and Waheed. They should not be left alive. On this instigation, all the three co-accused Peeru, Jabbar and Shabban had thrown acid from the container upon the informant and Shahabuddin @ Sabu with an intention to kill them. The said acid also fell upon Mohd. Yunus, Munshi of an Advocate Devendra Kumar Tyagi, who was sitting by the side of Shahabuddin @ Sabu. By this episode, stampede followed and one of the containers fell on the spot. Jabbar and others fled from hall. The said acid also fell upon Mohd. Yunus, Munshi of an Advocate Devendra Kumar Tyagi, who was sitting by the side of Shahabuddin @ Sabu. By this episode, stampede followed and one of the containers fell on the spot. Jabbar and others fled from hall. The said occurrence was seen by informant, Abdul Waheed (PW3), Shahabuddin @ Sabu (PW1) (injured), Mohd. Yunus, Pavva son of Ishaq Haneef and many other persons, who were sitting in the hall. By falling of the said acid, Shahabuddin @ Sabu and Mohd. Yunus became seriously injured and the condition of Shahabuddin @ Sabu became critical. The accused Jabbar wanted to marry forcibly with the sister of Shahabuddin @ Sabu regarding which a complaint was also given by him (Sabu) at the police station. About 4-5 months prior to this occurrence, the informant and Shahabuddin @ Sabu were also beaten by accused Jabbar, Gaffar and Peeru regarding which report was lodged by the informant at police station Hapur. Thereafter about 2 ½ months ago, Shahabuddin @ Sabu was also beaten by Shabban, Nanva, Jabbar and Gaffar in Ghaziabad also. Regarding which, Shahabuddin @ Sabu had lodged report at police station Sihani Gate. Because of this enmity, Jabbar and others had given effect to the present occurrence. From the place of incident, empty container was collected and after taking it, Shahabuddin @ Sabu, Mohd. Yunus and informant went to the police station to lodge FIR. 5. On the written report (Exhibit Ka-3), chik FIR (Exhibit Ka-9) was prepared at police station, Hapur on 20.9.1983 at 3.35 P.M. After registering, the case crime no.515 of 1983 under sections 147, 148, 307 and 326 IPC against the accused-applicants, entry of which was made in G.D. on the same date, which is Exhibit Ka-10, the investigation was handed over to S.I. Mulayam Singh (PW5), who conducted investigation in this case and prepared site plan at the instance of the informant, which is Exhibit Ka-6 and submitted charge-sheet (Exhibit Ka-7) against the accused applicants. 6. 6. On the basis of evidence on record, charge was framed against the accused-appellants Gaffar and Nanva on 15.2.1984 under sections 147, 307 read with 149, 326 read with 149 IPC and on the same day charge under sections 148, 307 read with 149 and 326 read with 149 IPC were framed against the accused Peeru, Jabbar and Shabban to which all the accused pleaded not guilty and claimed to be tried. 7. Thereafter from the side of the prosecution injured Shahabuddin @ Sabu as PW-1, Dr. R.D. Gupta as PW-2, Abdul Waheed as PW-3, Dr. N.K. Sharma, as PW-4, S.I. Mulayam Singh as PW-5, Dr. D.P. Agarwal as PW-6, Constable Mahipal as PW-7 and Mohd. Yunus as CW-1 have been examined. Thereafter, the evidence of prosecution was closed and the statements of accused were recorded under section 313 Cr.P.C. in which plea of false implication has been taken and in defence Jai Bhagwan Sharma as DW1 has been examined. 8. The court below after having considered the entire evidence on record has convicted the accused-appellants and awarded punishment as mentioned above. 9. Learned counsel for the appellant no. 4 has argued that the appellant no. 4 had no direct role in giving effect to the occurrence because he has been assigned the role of only instigation, actually main role has been assigned to co-accused namely, Jabbar, Peeru and Shabban, who were carrying container full of acid which is said to have been thrown at the instigation of co-accused Jabbar and co-accused Nanva. The said allegation of even instigation is false as no such instigation was ever given nor there is any evidence on record and yet Gaffar has been convicted under the abovementioned sections, therefore, he should be acquitted. 10. In order to appreciate the argument of both the parties, the evidence of witnesses, which have been adduced from the side of prosecution need to be scrutinized. 11. Shahabuddin @ Sabu who is injured in this case has stated in examination in chief that about 11 months ago, he had gone to Jaina Talkies, Hapur with Abdul Waheed (PW3) at about 2.30 p.m. and was sitting in the hall. Amar Akbar Anthony film was going on. At about 2.30 to 3.00 p.m. accused Jabbar, Peeru, Shabban were having containers full with acid while Nanva and Gaffar (appellant no.4) were empty handed. Amar Akbar Anthony film was going on. At about 2.30 to 3.00 p.m. accused Jabbar, Peeru, Shabban were having containers full with acid while Nanva and Gaffar (appellant no.4) were empty handed. Gaffar and Nanva instructed the accused Jabbar, Peeru and Shabban that they should throw acid upon Abdul Waheed and Shahabuddin @ Sabu. They should not be left alive and then Jabbar, Peeru, Shabban had thrown acid upon PW1 and Abdul Waheed (PW3). Thereafter, the informant after making him sit on a Rikshaw, had taken him to police station and there Abdul Waheed had lodged report and thereafter PW1 was referred to Hapur Medical College and from there doctor had referred him to Meerut Medical College. He was not given any treatment at Hapur. He very well recognized all the accused-appellants from before. This offence was committed because accused Jabbar wanted to marry his sister for which PW1 had declined. This led to the annoyance of the accused. He had lost his eye sight absolutely. 12. In cross examination this witness has stated that Nanva and Shabban are real brothers. He does know whether accused Peeru had lodged any report prior to this occurrence against PW1 in respect of an occurrence given effect to by knife. But further he has stated that at his complaint, he had got himself bailed out and Shabban and Nanva were witness in that report. Jabbar, Gaffar (appellant) and Peeru are three real brothers, who lived in his Mohalla. On the date of occurrence, first show started at 11.30 p.m. and it used to finish at about 2.00 to 2.30 p.m. They had entered the hall before 4-5 minutes of this occurrence. Abdul Waheed (PW3) was sitting to the left of him. He had heard after reaching the hospital that acid was also thrown upon a Munshi of an advocate. His name was Yunus and he came to know about his name subsequently. About 2-3 minutes after the acid was thrown upon him, he went to the police station. The whole body was burning although he had not fainted. He stayed at police station for about 10 minutes. He did not go inside the police station after alighting from Rikshaw rather remained stayed on the gate of the police station. Abdul Waheed has lodged the report from outside the gate of the police station in his presence. The whole body was burning although he had not fainted. He stayed at police station for about 10 minutes. He did not go inside the police station after alighting from Rikshaw rather remained stayed on the gate of the police station. Abdul Waheed has lodged the report from outside the gate of the police station in his presence. He came to know at the police station that the constable had come out because he was not in a position to see them and due to this reason, he could not tell as to who had written the report. No one had interrogated him. After lodging the report, he was taken to Hapur hospital where he was not given treatment and had stayed there hardly 2-4 minutes. His father had taken him to Merrut and with him some police personnel were also there and had reached there at about 4.00 p.m. When he reached inside the cinema hall, advertisements were going on and when the accused came very close, then he saw them. The accused had come to the seats, which was ahead of the seat of PW1 and after coming there, Jabbar and Nanva had thrown the acid upon him. His statement was recorded by the Investigating Officer about 8-10 days after the occurrence, to whom he had stated that accused were sitting in the next row and when he saw them, immediately the accused had stood up. He had not seen them coming but he had not told the Investigating Officer that right then all of a sudden Peeru, Nanva, Jabbar, Gaffar, appellant and Shabban of his Mohalla came to cinema hall and entered in the same class, in the next row of which the PW1 was sitting. He had not told him that they were having containers in their hands. Further he has stated that all the accused had come in the row of seats which was in front and all of them had stood in a line. Gaffar, Appellant and Nanva were sitting to the left of him and rest of the three were to the right of him in standing position. When he had seen all the accused sitting in front row, he did not feel that he was having any fear but when they stood up, then he felt that there was some danger. Gaffar, Appellant and Nanva were sitting to the left of him and rest of the three were to the right of him in standing position. When he had seen all the accused sitting in front row, he did not feel that he was having any fear but when they stood up, then he felt that there was some danger. He could not defend himself before the acid was thrown upon him. When acid fell upon him, he was sitting on the seat but cannot tell whether the acid had fallen on the seat or not. The constable remains on duty in picture hall, he does not know. There was also one gate keeper on the gate in the hall. It is wrong to say that picture was going on and somebody else had thrown acid upon him and he could not recognize them and was making false statement. His clothes were also taken at the police station. There were people sitting behind his row also. He did not pay attention to the people coming inside the hall. As soon as he sat inside the hall advertisement and news reel had started. First of all Jabbar had thrown acid upon his face and the said acid also fell in front row as well as upon him and soon thereafter he stood up. Thereafter, who had thrown acid, he could not know but the acid was thrown by the rest of the two accused but he could not see because his vision has gone. When the people in the hall started raising alarm ‘Pakro Pakro” all people stood up and stampede followed, this commotion started by the persons sitting about 5-7 feet away from him. 13. The statement of this witness have very emphatically come on record to the effect that it was Jabbar, who was the main culprit who had thrown acid upon him and rest of the two accused Peeru and Shabban are also stated to have thrown acid upon him and Abdul Waheed but he has rightly stated that he could not see the other two accused by then his vision has gone due to acid falling upon him, therefore, the statement of this witness is truthful in regard to throwing acid by Jabbar. The statement of this witness that the said occurrence was given effect to at the instance of Nanva and Gaffar, appellant is found to be correct since all the accused were close to each other. Nanva and Jabbar are said to be brother while Gaffar and Peeru are also said to be brother of each other, it could be possible that the name of Gaffar, appellant and Peeru would have been taken in order to implicate all of them but the occurrence was committed only by Jabbar as per this witness. 14. The other injured witness of this case is Abdul Waheed who has been examined as PW3. The said witness has stated in examination-in-chief that he had accompanied Shahabuddin @ Sabu to cinema hall where news reel was going on, soon after five persons came to the place where they were sitting to the front first row namely, Gaffar, appellant, Peeru, Jabbar and Shabban, who are present in Court. Nanva and Gaffar, appellant were empty hands while Jabbar, Peeru and Shabban were having containers in their hands. Gaffar, appellant and Nanva told the other three accused, pointing towards Waheed and Sabu that they were sitting and that acid be thrown upon them. They should not be allowed to escape. Thereafter, Peeru, Jabbar and Shabban had thrown acid from their containers which fell upon Shahabuddin @ Sabu and PW3. Beside PW3, one Munshi of an Advocate namely, Yunus was sitting and acid also fell on him. At that time, lights were on of the hall but there were curtains on the gate. Accused person who had thrown acid upon them had fled from there. Thereafter, PW3 and his companion Shahabuddin @ Sabu also came out and went to police station. When they reached outside the gate of Tehsil, there was huge crowd assembled. He asked one gentleman to scribe report who had written the report and the same was thereafter signed by him, which is Exhibit Ka-3. He has gone to police station to lodge the report. Tehsil and police station are located in the same boundary, thereafter police personnel had taken them to hospital where he was medically examined while Shahabuddin @ Sabu was referred to Hapur forthwith and from there to Meerut. 15. He has gone to police station to lodge the report. Tehsil and police station are located in the same boundary, thereafter police personnel had taken them to hospital where he was medically examined while Shahabuddin @ Sabu was referred to Hapur forthwith and from there to Meerut. 15. In cross-examination, this witness has stated that Peeru had lodged a report against him regarding assaulting upon him with knife, which occurrence took place about 4-5 months ago. He does not know whether Nanva was a witness against him and whether hearing in this case had begun in the Court. This occurrence had taken place after 5-6 minutes of their entering the hall. They had sat on the opposite side from where they had entered the hall and were sitting on the second row. They were sitting almost in the middle of the hall. The door of the side from where people were entering after purchasing the ticket was open while the door on the other side was closed. Till the time this occurrence took place, people were still coming inside the hall. In the hall, one gate keeper was there. First of all, when he saw the accused, then they had said to throw acid. When they said to throw acid then they were standing in the next row ahead in bent condition. He was sitting after leaving two seats from gallery. Shahabuddin @ Sabu was sitting to the right side of him and Mian Munad was sitting on the left side but he does not recollect whether Mian Munad was sitting there from before or had sat there after his coming in the hall. In the front row ahead of the row in which he was sitting, the accused Jabbar, thereafter Shabban, thereafter Peeru were sitting. They were sitting to his left side and Peeru, thereafter Nanva and thereafter Gaffar and appellants were sitting and all of them had thrown together acid upon them. 16. In front of PW3 was Shabban. Acid fell upon his face, legs and neck, thereafter accused fled towards the curtain but he could not see from which gate, they fled. The accused had aluminum container in which amul milk for children is kept. 16. In front of PW3 was Shabban. Acid fell upon his face, legs and neck, thereafter accused fled towards the curtain but he could not see from which gate, they fled. The accused had aluminum container in which amul milk for children is kept. Soon after having thrown the acid, he and Shahabuddin @ Sabu came to the rear gate of the hall together holding hands of each other and from there they went to police station on a rickshaw. After throwing acid upon him till reaching the police station, he did not tell about this occurrence to anyone. After purchasing ticket till entering the hall, he had not seen any of the accused and after having sat there for 6-7 minutes, he saw the accused person. All the three accused had thrown acid simultaneously. Acid certainly must have fallen on the seat but he could not see it. Soon after throwing of acid, he had raised alarm which led to stampede, since the PW3 was not in full control of his sense. 17. It is right to say that Peeru had lodged a case against him under section 107/16 Cr.P.C. in which action was taken. 18. The said statement of the witness clearly indicates that main emphasis is that there were three accused who had together thrown acid upon him and Shahabuddin @ Sabu by which they had suffered injuries though this witness has tried to communicate that the other two accused Nanva and Gaffar also were accompanied by the other three accused namely, Jabbar, Peeru and Shabban who are said to have thrown acid together from the container taken in their hands but I find that his testimony is not very confidence inspiring with respect to Nanva and Gaffar, appellant. He has admitted about enmity between two sides and including enmity of his own with one of the accused Peeru as one case was lodged by Peeru against him for assaulting him by knife, therefore, it could be possible that due to said enmity the name of Gaffar and other appellants would also have been taken by this witness so that all the accused were implicated in this case. The evidence appears to be on record only against three accused namely, Jabbar, Peeru and Shabban who had actually thrown acid upon him and co-injured Shahab Uddin. 19. The evidence appears to be on record only against three accused namely, Jabbar, Peeru and Shabban who had actually thrown acid upon him and co-injured Shahab Uddin. 19. The statements of these two witnesses were found to be in corroboration with the statement of Dr. R.D. Gupta, PW2 and Dr. N.K. Gupta, PW4. The genuineness of the medical examination report of the two injured namely, Shahabuddin @ Sabu and Abdul Waheed have been admitted from the side of the accused which are Exhibit Ka-1 and Exhibit Ka-2 and therefore no detailed examination-in-chief has been recorded of this witness. This witness has stated that the injuries which have been received by them could be caused on 20.09.1983 at 2.30 p.m. 20. In cross-examination, this witness has stated that the acid was of the kind which could cause burn injury. The burns suffered by the injured were deep burn. This witness has been cross examined at length by the defence but nothing such has been said by this witness which would make it possible to disbelieve his statement given in examination-in-chief. The injury memos which have been proved by this doctor, show that Abdul Waheed had suffered as many as 14 injuries on his person which were caused to him by acid (Exhibit Ka2). Mohd. Yunus who also was injured in this case, has suffered as many as nine acid injuries (Exhibit Ka-1). The other doctor which has been examined from the side of the prosecution is Dr. T.P. Agarwal, who has stated in examination-in-chief as PW6 that he had examined the injured Shahabuddin @ Sabu on 27.9.1983 and had found that the skin over and below the right eye was burnt. Vision of the right eye had absolutely gone as he was not able to count fingers and has proved medical examination report Exhibit Ka-8 prepared by him. This witness has proved that vision of right eye had been totally destroyed by this assault. 21. In view of the statement of these two witnesses i.e. PW-2 and PW-6 have proved beyond doubt that it was the injuries caused by Jabbar, Peeru and Shabban but these injuries were caused by throwing acid upon them, which has resulted in serious injuries so-much-so that vision of Shahabuddin @ Sabu has absolutely gone, therefore, prosecution has succeeded in proving the case against the main accused Jabbar and Shabban. 22. 22. Investigating Officer, S.I. Mulayam Singh PW-4 has proved the site plan as well as charge sheet, clothes and other things of the injured which were taken in possession in pursuance to the occurrence. His testimony does not cast any doubt on the truthfulness of his statement. His evidence is absolutely believable with regard to three accused namely, Jabbar, Peeru and Shabban. 23. PW-7 Constable Mahipal is formal witness who has simply prepared chik and G.D. and has proved them, therefore, no detailed analysis is required of his statement. 24. After having scanned entire fact of the case as well as evidence on record, I am of the opinion that the prosecution has been able to prove the case against the accused Jabbar, Peeru and Shabban only who were directly responsible for causing acid burn injuries to Shahabuddin @ Sabu PW-1, Abdul Waheed, PW3 and one Munshi of an Advocate Yunus but so far as the appellant Gaffar, co-accused Nanva are concerned, it appears that they have been falsely implicated because of enmity as there is no role assigned to them except that of instigating the main accused named-above to throw acid upon the injured. 25. In view of analysis, I find that the co-accused Gaffar, appellant, whose case is being considered by this Court as he is the only accused alive, whereas all of them have already died, is not found guilty of charges under sections 147 and 326 IPC read with section 149 IPC, P.S. Hapur, District Hapur, accordingly, he stands acquitted of the said charges. 26. Appeal stands allowed. 27. Let a copy of this judgment be transmitted to the trial court along with lower court record promptly for immediate compliance.