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2025 DIGILAW 1064 (RAJ)

Saleem S/o Ramjan Khan v. State of Rajasthan

2025-04-09

MAHENDAR KUMAR GOYAL

body2025
Judgment : MAHENDAR KUMAR GOYAL, J. 1. These criminal appeals are directed against the judgment dated 31.03.1989 passed by the learned Additional Sessions Judge No.5, Jaipur City, Jaipur (for brevity, “learned trial Court”) in Criminal (Sessions) Case No.61/1987 whereby, while convicting the accused-appellant (for brevity, “appellant”) under Section 326 IPC, he has been sentenced as under: “Two years and six months’ rigorous imprisonment and imprisonment?. 2. The relevant facts in brief are that on a written report dated 13.07.1987 (Ex.P2) lodged by Shri Khan Mohammed with the Police Station Manak Chowk, Jaipur, an FIR dated 13.07.1987 (Ex. P3) under Sections 307 and 324 IPC came to be registered wherein, it was alleged that in the night at about 1:00-1:30 am, some unknown person threw acid on the body of his brother-Phool Mohammed and Saleem also informed him that an unidentified person has attacked him as also Shri Phool Mohammed with acid. 3. After investigation, charge-sheet was filed against the appellant under Sections 324, 326 and 307 IPC. However, charge only under Section 307 IPC was framed. The appellant pleaded not guilty and demanded trial. 4. After trial, the learned trial Court has, while acquitting the appellant from the charge under Section 307 IPC, convicted and sentenced him, vide judgment impugned dated 31.03.1989, in the manner stated hereinabove. 5. The appeal no.133/1989 has been preferred by the appellant challenging his conviction whereas, the appeal no.216/1989 has been preferred by the State for enhancement of the sentence awarded to him. 6. Assailing the impugned judgment, learned counsel for the appellant submitted that findings of the learned trial Court are based on presumptions and assumptions. He submitted that while convicting him, the learned trial Court did not appreciate that there was no legally admissible evidence available on record to connect him with the alleged offence. Learned counsel submitted that although, the alleged eyewitnesses S/Shri Mangu Singh (PW8) and Ratan Lal (PW15) are Constables; still, they neither apprehended the appellant at the place of incident nor, they lodged the FIR after the incident which raises a serious doubt about veracity of their statement. He, therefore, prayed that the appeal be allowed, the judgment impugned dated 31.03.1989 be quashed and set aside and the appellant be acquitted from the charge. 7. He, therefore, prayed that the appeal be allowed, the judgment impugned dated 31.03.1989 be quashed and set aside and the appellant be acquitted from the charge. 7. Opposing the prayer, learned Public Prosecutor submitted that findings of the learned trial Court, while recording conviction of the appellant, are based on cogent material on record which warrant no interference. He, therefore, prays for dismissal of the appeal. 8. Advancing the prayer made in the appeal no.216/1989 preferred by the State, learned Public Prosecutor submitted that since, it is a case of acid attack wherein, the victim has suffered grievous injuries, looking to the gravity of the offence, the sentence awarded to the appellant by the learned trial Court is on very low side which requires to be enhanced suitably. Heard. Considered. 9. Insofar as the acid attack on the victim-Shri Phool Mohammed is concerned, from the evidence available on record in the shape of testimony of Shri P.C. Vyas (PW14) who has examined the victim and has prepared the injury report (Ex. P19) and from the statement of the appellant recorded under Section 313 CrPC, it is established beyond doubt that he suffered injuries on account of it. 10. Now, the moot question for consideration of this Court is whether the prosecution has been able to establish beyond reasonable doubt that the appellant is guilty of the aforesaid acid attack. 11. The injured-Shri Phool Mohammed has stated as PW10 that in the midnight of 12-13 July, 1987, when he was sleeping at about 1:00-1:30 pm at his cycle shop in Chaura Rasta, Jaipur, he felt burning sensation and found the appellant standing before him when he woke up. He has alleged that acid was thrown upon him by the appellant. In his cross-examination, he states that he did not inform any person reaching the spot that the appellant has attacked him with acid. He has also averred that he has informed his elder brother-Khan Mohammad that the appellant has thrown acid upon him but, feigned ignorance when confronted as to why it was absent in his statement recorded under Section 161 CrPC (Ex. D3). He has also admitted in his cross-examination that when the acid was thrown upon him, he was in deep slumber. 12. D3). He has also admitted in his cross-examination that when the acid was thrown upon him, he was in deep slumber. 12. From the aforesaid testimony, it is apparent that the victim has not seen the appellant throwing acid upon him; rather, found him standing in front of him immediately after it. 13. The learned trial Court has relied upon testimony of two eye witnesses to record conviction of the appellant namely; S/Shri Mangu Singh (PW8) and Ratan Lal (PW15). Both the witnesses are Police Constables and were on night duty at the relevant time in Chaura Rasta, Jaipur, the place of incident. In view of the statement of Shri Madan Lal (PW5), a Constable who has exhibited and proved the daily diary (rapat rojnamcha) (Ex. P10), it is established that both these Police Constables were on duty around the place of incident at the relevant time. The question is whether they have seen the appellant attacking the victim with acid, as claimed. While, Shri Mangu Singh has deposed that he saw the appellant throwing acid from a bottle upon the victim, Shri Ratan Lal has stated that he saw the appellant throwing something upon Phool Mohammed. However, as per their testimony and from the other evidence available on record, it is evident that neither they apprehended the appellant despite him being an accused of acid attack nor, either of them lodged the First Information Report nor, they have lodged the report/even reported the ghastly crime when they reached the police station after completion of their night duty as is established from the Ex. D1, the rapat rojnamcha dated 13.07.1987 prepared at 4:00 am as also from the testimony of Shri Madan Lal (PW5), a Constable in the Police Station Manak Chowk, who stated in his cross-examination that after their return, both the Constables (PW8) and (PW15) did not lodge any report. It also falsifies their statement made during their cross examination that on their return, they have reported the matter which was recorded in the rapat rojnamcha (Ex.D1). It was highly unnatural conduct on the part of these two Constables. 14. It also falsifies their statement made during their cross examination that on their return, they have reported the matter which was recorded in the rapat rojnamcha (Ex.D1). It was highly unnatural conduct on the part of these two Constables. 14. Shri Mangu Singh has further stated in his cross-examination that they did not send anybody to the police station to lodge the report; but, the SHO himself had arrived at the place of incident at about 1:30 am and when they left the place of incident for police station (at about 4:00 am), two Constables were left behind by the SHO out of whom one was Shri Hanuman Singh. He has further stated that they had informed the SHO about the incident. On the contrary, Shri Ratan Lal (PW15) has stated in his cross examination that the SHO came to the place of incident at dawn and on investigation, they had informed him that Salim has thrown something on Phool Mohammed. However, as per his statement recorded under Section 161 Cr.P.C. (Ex.D1) and other evidence available on record, it is evident that they had already returned to the Police Station at 4.00 am i.e. before dawn. 15. Interestingly, the SHO Shri Vinit Kumar has made not a whisper of averment about the aforesaid happenings during his deposition as PW2 wherein, he simply says that the written report (Ex.P2) was submitted before him whereupon, the FIR (Ex.P3) was lodged, investigation was handed over to Shri K.C. Chand, S.I. and he filed charge sheet against the appellant. 16. Further, the incident has happened in the intervening night of12-13 th July, 1987, as per the prosecution case, in presence of S/Shri Mangu Singh and Ratan Lal, the Police Constables of the jurisdictional Police Station. They both have returned to the Police Station in the morning of 13.8.1987 at about 4 am after completion of their night duty. The site plan (Ex.P16) was prepared by the Investigating Officer in presence of and on identification by Shri Mangu Singh and as per the cross examination of Shri Ratan Lal (PW15), he was also present at that time and had informed the SHO about the place from where they have witnessed the incident; however, Shri Kesri Chand (PW17), the investigating officer says that till preparation of the site plan, he was unaware as to whether there was any eyewitness to the incident. Further, statement of S/Shri Mangu Singh and Ratan Lal under Section 161 Cr.P.C. (Ex.D2) and (Ex.D6) respectively, were recorded not on 13.7.1987 but, on next date, i.e., dated 14.7.1987. Although, the Investigating Officer has attempted to offer an explanation for this delay during his cross examination as PW17 that he was busy in another duty; but, he has conducted a substantial part of the investigation on 13.7.1987 as is apparent from the site plan and other documents available on record and exhibited by the prosecution. Therefore, the prosecution has failed to offer any plausible explanation as to why statement of the only two eye witnesses was not recorded promptly which was imperative looking to the gravity of the offence. 17. There is one more important aspect of the matter. Although, both these witnesses have claimed to have seen the appellant throwing acid upon the victim; but, as per their deposition, they have sent both; the complainant as well as the accused, in the same Auto-rickshaw to the hospital without any person accompanying them. When confronted during the course of cross examination as to why the victim was sent to the hospital along with the appellant, no explanation was offered by them. 18. In view of the aforesaid evidence, especially the highly unnatural conduct of these two prosecution witnesses, as discussed hereinabove which raises a serious doubt about the veracity of their statement, in the considered opinion of this court, it was not safe to record conviction of the appellant merely on their testimony. 19. Further, the learned trial Court has relied upon the deposition of S/Shri Ashok Kumar (PW11) and Bal Bahadur (PW13) as they have reached the place of incident soon after/ alongwith S/Shri Mangu Singh and Ratan Lal. From their testimony, it is established that although, S/Shri Ashok Kumar and Bal Bahadur have reached the place of incident immediately after the acid attack; but, have not seen the appellant throwing acid upon the victim. In view thereof, their testimony also is not of much help to the prosecution as none of them has, indisputably, seen the appellant throwing the acid upon the victim. They merely corroborate that the appellant was present at the place of incident, a fact admitted even by the appellant himself. However, its implication would be considered later on. In view thereof, their testimony also is not of much help to the prosecution as none of them has, indisputably, seen the appellant throwing the acid upon the victim. They merely corroborate that the appellant was present at the place of incident, a fact admitted even by the appellant himself. However, its implication would be considered later on. Therefore, the learned trial Court has erred in relying upon their testimony on the premise that they are independent witnesses having no interest in the victim Phool Mohammed and no enmity with the appellant. 20. So far as testimony of Shri Babu (PW16) is concerned, from his deposition, a possibility cannot be ruled out that he is a planted witness. He states in his examination-in-chief that at about 7:00 pm on 12.07.1987, the appellant visited him and demanded colour for his brother (a painter who used to purchase paint from the witness) as also sulfuric acid whereupon, he gave to the appellant alongwith the colour, 250 grams of sulfuric acid in a wide opened white bottle. From his cross-examination, it is revealed that it was not for the first time that the appellant has purchased the colour/acid from him. Conspicuously, his statement was recorded on 01.08.1988 i.e. after more than a year from the date of incident and in view thereof, the vivid description about the precise time, the date, the exact quantity of the acid and the explicit details of the bottle in which it was sold, raises a serious doubt about the genuineness of the statement and he appears to be, as already observed, a planted witness by the prosecution. Moreover, the leaned trial Court has held that the prosecution has failed to establish that the glass bottle recovered by it from the place of incident was used by the appellant in commission of the offence. In view thereof, the learned trial court erred in relying upon his testimony in recording conviction of the appellant. 21. The remaining prosecution witnesses are either formal witnesses or did not depose any material evidence to connect the appellant with the alleged offence. 22. In view thereof, the learned trial court erred in relying upon his testimony in recording conviction of the appellant. 21. The remaining prosecution witnesses are either formal witnesses or did not depose any material evidence to connect the appellant with the alleged offence. 22. A perusal of the judgment impugned dated 31.03.1989 reveals that much emphasis has been given by the learned trial Court to the fact that the appellant has failed to establish his plea recorded under Section 313 Cr.P.C. wherein, he has stated that at the time of incident, when he was returning after watching a movie, his cycle did not have air in it and when he was standing on the footpath to fill in the air, an unknown person threw acid upon him as also on the victim Shri Phool Mohammed whereupon, he called for S/Shri Mohan and Ashok who sent them to the hospital. It was held by the learned trial Court that since the appellant has failed to establish that some unknown person had thrown acid upon him as also on the victim, an adverse inference was liable to be drawn against him. In the considered opinion of this Court, this approach is not tenable. As already observed, the prosecution has not been able to establish, beyond reasonable doubt, that the appellant attacked the victim with acid. Further, from the evidence available on record, the plea taken by the appellant could not have been brushed aside in a cursory manner. Shri Mangu Singh (PW8) has stated in his examination-in-chief that when they found the appellant sitting near the place of incident at about 1:00 am, on asking, he said that the air was to be filled in the cycle. Further, during his cross-examination, he has admitted that before throwing acid, the appellant has picked up the pump to fill in the air and while, he was filling in the air, the witness did not see any bottle in his hand. Shri Bal Bahadur has also said during his cross-examination as PW13 that he has seen that an air pressure pump was attached to tyre of the cycle at the place of incident at the relevant time. Shri Ratan Lal has also deposed as PW15 that on asking, the appellant informed that he had gone to watch a movie and the air was to be filled in the cycle. Shri Ratan Lal has also deposed as PW15 that on asking, the appellant informed that he had gone to watch a movie and the air was to be filled in the cycle. This part of the plea of the appellant is corroborated from the site plan (Ex. P16) which reflects that at place “B”, there was a cycle with pump attached to its rear tyre. This is also corroborated from the photograph (Ex.7) submitted by the prosecution. Shri Prem Narain Sharma (PW1), the Sub-Inspector and finger print expert, has also stated in his deposition that there were acid marks on the cycles and air pressure pump. Moreover, in the First Information Report (Ex. P3) based on the written report (Ex. P2) lodged by brother of the victim immediately after the incident, it is categorically stated that the appellant informed that when he was filling in the air in the cycle after watching a movie, an unknown person attacked him as also the victim with acid whereupon, he called S/Shri Ashok and Mohan. The appellant has also stated in his plea recorded under Section 313 Cr.P.C. that after the acid attack, he called for S/Shri Mohan and Ashok. While, Shri Mohan was not examined as a prosecution witness, Shri Ashok has categorically stated during his examination-in-chief as PW11 that while he was sleeping on the roof of his house at about 1:00-2:00 am, he heard somebody crying his and his elder brother’s name. Shri Phool Mohammed (PW10), the victim, does not say that he cried for S/Shri Ashok and Mohan. As per the first version available on record, it was the appellant who cried for their name immediately after acid attack which lends credentials to his statement. Thus, the substantial part of the plea of the appellant recorded under Section 313 Cr.P.C. stands substantiated from the evidence on record. Merely because the appellant has not been able to establish his remaining part of the plea that some unknown person threw acid, it could not have been presumed that his plea was totally imaginary and unacceptable in view of the evidence discussed hereinabove. Further, the aforesaid evidence casts a shadow of doubt on the veracity of the prosecution evidence. Merely because the appellant has not been able to establish his remaining part of the plea that some unknown person threw acid, it could not have been presumed that his plea was totally imaginary and unacceptable in view of the evidence discussed hereinabove. Further, the aforesaid evidence casts a shadow of doubt on the veracity of the prosecution evidence. In this regard, the learned trial court has erred in drawing an inference that since the appellant has failed to establish his plea that some unknown person threw acid upon the victim, it is the appellant who has done so ignoring the settled principle of law that the prosecution has to prove its case beyond reasonable doubt to warrant conviction and reverse burden is not upon the accused. 23. Further, neither it is case of the prosecution that the appellant fled from the place of incident after the acid attack nor, it is revealed from the evidence on record. Rather, both; the appellant as also the victim, had gone to the hospital in the same auto-rickshaw without any other person accompanying them. Even after reaching the hospital, the appellant did not flee as, the complainant Shri Khan Mohammad (PW2) has stated in his written report (Ex.P2) that the appellant informed him that an unidentified person has attacked both. The appellant does not have any criminal antecedent and is not a hardened criminal and in view thereof, had the appellant committed the heinous crime of throwing acid upon the victim, the natural instinct would have impelled him to flee from the place of incident. 24. From the conspectus of the aforesaid discussion, this Court is not convinced that the prosecution has been able to prove beyond reasonable doubt that the appellant threw acid upon the victim resulting into grievous injuries. Accordingly, the appeal no.133/1989 preferred by the appellant is allowed, the judgement impugned dated 31.03.1989 passed by the Additional Sessions Judge No.5, Jaipur City, Jaipur is quashed and set aside and the appellant is acquitted from the charge under Section 326 IPC. His sentence is already suspended since 13.04.1989 and, therefore, his bail bonds are discharged. He need not surrender. The appeal no.216/1989 preferred by the State for enhancement of the sentence stands, consequently, dismissed. 25. His sentence is already suspended since 13.04.1989 and, therefore, his bail bonds are discharged. He need not surrender. The appeal no.216/1989 preferred by the State for enhancement of the sentence stands, consequently, dismissed. 25. In view of the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant namely Saleem S/o Ramjan Khan is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount before the Registrar (Judicial) of this Court which shall be effective for a period of six months with the stipulation that in the event of Special Leave Petition being filed against the judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.