Court No. - 49 Judgment Reserved on 14.08.2018 Judgment Delivered on 23.08.2018
Case :- CRIMINAL APPEAL No. - 1393 of 2013
Appellant :- Sonu
Respondent :- State Of U.P.
Counsel for Appellant :- Ramanand Gupta,Imran Mabood Khan,Jitendra Kumar Shishodia
Counsel for Respondent :- Govt. Advocate
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Imran Mabood Khan, learned counsel for the appellant and Sri Ankit Srivastava, learned AGA for the State.
The present criminal appeal arises from the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge (Ex-Cadre), Court No. 2, Saharanpur dated 12.02.2013. The learned Court below has convicted the appellant Sonu under Sections 452 and 326 IPC. He has been awarded sentence :-
(i) rigorous imprisonment for four years, for offence committed under Section 452 IPC, together with fine Rs. 5,000/- and;
(ii) rigorous imprisonment for ten years, for offence committed under Sections 326 IPC, together with fine Rs. 30,000/-.
In the event of the aforesaid fine of Rs. 5,000/- and Rs. 30,000/- being not paid, the appellant would have to suffer further sentence/s, in lieu thereof, of one year and/or two years respectively, as the case may be.
The appellant was not granted bail during trial and his bail application filed in the present appeal was rejected by order dated 09.10.2014. Thus, he is in jail for more than seven years since his arrest, upon the FIR being lodged on 23.09.2010.
According to the FIR lodged by P.W. 2 - Smt. Soran / the mother of the victim-hereinafter referred to as 'A', she reported, while the informant's husband was at Karnal, in Haryana in connection with tailoring work, on the intervening night of 22/23.09.2010, at about 2:00 a.m., the informant was at her home, along with her two daughters. The informant was sleeping in one room along with her younger daughter Shefali while her elder daughter who is the victim-'A', a student of class 12, was sleeping alone, in the adjoining room.
It was then disclosed that at that time, the victim called out to the informant and thus informed that Sonu (the appellant) had entered their house from the terrace. The informant ran up to the victim's room where she saw the accused pouring out acid, from a plastic container, over the face of 'A' who was sitting on her bed. As soon as the victim stood up, the appellant poured more acid over the victim's head and uttered words to the effect that now her 'ghamand' (pride) would be destroyed. The informant and her younger daughter Shefali, tried to catch hold of the appellant. However, he escaped through the entrance door, throwing the plastic container outside the informant's room. The accused escaped along with his accomplice who was waiting outside the informant's house, on a motorcycle. Also, it was disclosed that the informant's neighbour Sanjay Kumar Gupta S/o of Prem Chandra also saw the appellant escape from the place of occurrence and he also saw the victim in that state.
The recovery memo prepared at the house of the victim, on the next day, describes that the following items were recovered there from, namely, (i) one suit with acid burns at various places, (ii) a blazer with acid burns at various places (iii) a ladies salvar with acid burns at various places and (iv) a plastic container (from which the acid was poured out). All pieces of clothing were described to have skin tissue attached to them, at many places. The forensic report in respect of the clothing items confirmed the use of acid and presence of skin tissue on them. However, there is a discrepancy inasmuch as though the recovery memo describes one item of clothing as 'blazer', the forensic report had not been submitted with reference to that item. In fact, the forensic report is with respect to a 'bra' (i.e. brassiere) with acid burns and skin tissue attached to it.
The injury report of 'A' clearly supports the prosecution allegation of extensive burn injuries suffered by her all over her face, back, neck, chest, back of chest, abdomen, hip, upper arm and hair. Thus there is no dispute as to the nature, extent or cause of injuries suffered by the victim.
At the police station Gangoh, the first G.D. entry is of date 23.9.2010 at 2.35 a.m. The F.I.R. had also been recorded on that date and at that time. There is description of the 'majroohi chhithhi' having been issued at that time for conduct of the medical examination of the injured. The medical examination of the victim was first conducted at the District Hospital, Saharanpur on 23.9.2010 at 3.55 a.m. and according to that medical report, the injured was disclosed to have been taken to the hospital by Constable Jag Pal Singh.
The police carried out the investigation and charged the appellant as also Raju Kumar, Rajesh and Sanjay with commission of offence under Sections 452, 307, 120-B IPC. Initially, by order dated 23.2.2011, learned trial court framed two charges. First, the accused were charged with committing offence under Section 452 I.P.C. Second, they were charged for offence under Section 307 I.P.C. By another order dated 14.10.2011, an additional charge was framed against the present appellant for commission of offence under Section 326 I.P.C. read with Section 34 I.P.C.
The victim/P.W.-1 during her examination (in-chief) stated that the appellant Sonu entered her house at about 2:00 a.m., and walked down the stairs from the terrace, to reach her room when the foot-steps of the appellant alerted the victim and she sat up on her bed. In the light of a light bulb, she saw the appellant carrying a plastic container that had already been opened. The appellant poured out the acid from that container over her face. As soon as she stood up, the appellant poured out more acid on the right side of her head. Then, the appellant uttered words to the effect, that now the 'ghammand' / pride of her beauty had been destroyed. 'A' then stated that she along with her mother and younger sister tried to catch hold of the appellant but he threw away the plastic container inside the house and escaped through the front entrance door of the house, alongwith the other accused.
During her cross-examination by the appellant, 'A' admitted that the father of the present appellant Jaipal and his brothers Rakesh, Neelkamal and Praveen had a shop at Mohalla Takan, let out by the Ravidas Temple committee. She described the temple to be 50-60 metres from her residence. Also, she stated that the said shop was vacated by the appellant's father, after the incident. She denied knowledge of the fact whether such shop had been attempted to be got vacated earlier.
Further, she stated, she used to walk past the house of the accused, on her way school, everyday. However, she also stated, she had never met the appellant; she did not know the family members of the appellant; she had neither ever gone to his house nor he had ever come to her house before. She thus stated that "Iss Ghatna Se Pehle Mulzim Sonu Mujhe Kabhi Nahin Mila". The victim further stated neither there was any animosity between the families of the victim and the appellant nor the incident was preceded by any dispute or altercation with the accused.
'A' also stated, she had been studying on the fateful night and had gone to sleep at about 11:00 p.m., due to power outage and that the power had been restored at the time of the incident. As to the time of the incident, she specifically stated that it was 2:00 p.m. - may be 10 minutes before or 10 minutes after that time. She had also stated that at the time of the occurrence she was using a blanket and that her blanket, bed sheet, mattress and pillow had also got burned by acid.
The Smt. Soran Devi, the informant/mother of the victim was also extensively examined during the trial as P.W.2. Besides supporting the prosecution case, that witness further stated, four to five months prior to the incident, on one occasion, the appellant had threatened to kill the victim. It had prompted the informant to complain to the family of the appellant. However, she could not explain why she had not lodged an official complaint in that regard and why such fact was not recorded in her statement recorded under section 161 Cr.P.C. As to the date and time of the F.I.R. being lodged, that witness first stated she had taken the victim to the Police Station (Gangoh), alongwith Umesh, Satish and Satpal where the report was made. She then stated, before taking the victim to the Police Station, she had taken her to the Government Hospital, Saharanpur. Thereafter, she also stated having gone to the Police Station to lodge the F.I.R. on the day (following), after the victim had been taken to the hospital.
Shefali the younger sister of the victim who is also the scribe of the F.I.R. was also examined during the trial, as P.W. 4. She also supported the prosecution case. However, with respect to the time of the F.I.R. being lodged, she did state that part F.I.R. had been prepared while she (alongwith others) was at the hospital, attending to the victim and that it was completed the next day, at her home, after she returned from the hospital and that her mother then took it to the Police Station in the afternoon.
Other than these witness, formal witness had been examined, to prove the medical report, recovery memo, forensic report, G.D. entries, registration of F.I.R., conduct of investigation and factual aspects related to the same. However, no submission has been advanced on the basis of or with reference to those statements or aspects.
The learned Session Judge has upon consideration of such evidence and upon hearing the parties, convicted the appellant for offence under Section 452 and 326 IPC.
Learned counsel for the appellant submits that there is gross inconsistency and falsity in the prosecution case. First, the prosecution version that the F.I.R. had been lodged at 2.35 a.m. is false. Though the FIR is disclosed to have been lodged at 2:35 a.m. i.e. within 35 minutes of the alleged incident, it was not possible to be done within such a short span of time. According to the prosecution narrative, the incident took place at 2 a.m. or there about. Time would have been consumed to react to the incident; to attend to the victim; to organize transport and also; in travelling, to take the victim to the police station and then to the hospital, that too in a private goods transport vehicle. Much time would have been consumed in that process and the informant could not have reached the police station to lodge the F.I.R. at 2.35 a.m.
Then, it is further stated that P.W. 2 / mother of the victim / the informant in her examination-in-chief had specifically stated that the victim had been taken to the hospital first, before being taken to the Police Station. Further, she stated she had gone to the Police Station on the next day at about 2.30 p.m. to lodge the F.I.R. Also, reliance has been placed on the statement of the scribe of the F.I.R. namely Shefali / the younger daughter of the informant / P.W. 4. She stated that on the morning following the incident (which cannot be earlier than 23.9.2010), she had prepared the part draft of the F.I.R. while at the hospital at Saharanpur, at the dictation of her mother and she had completed the same later, during the same day, after returning to her home, from the hospital. Thereafter, the informant took it to the Police Station.
It is further stated that no 'majroohi chhithi' was ever written at the relevant time, as it does not mention the name of the constable who is claimed to have taken 'A' for her medical examination. In such facts, it is submitted that the informant first took 'A' to the hospital where she was examined at 3.55 a.m. Much thereafter, by way of a well thought out plan, the F.I.R. was drafted, falsely accusing the applicant with the acid attack, though such attack had taken place outside the house of the informant, by someone other than the appellant and that the appellant. The appellant has been falsely implicated in the ante-dated F.I.R. owing to existing tenancy dispute of the family members and friends of the informant's family with the family of the appellant, over a shop that was thus got vacated, by making allegations against the applicant.
Second, it has been submitted, admittedly, the victim did not know the appellant from before. She took a categorical stand during her cross-examination that the appellant had never met her; she did not know anything about the appellant; she did not know the family members of the appellant; she had never visited the appellant's house neither did the appellant ever visit the victim's house; the families of the victim and the appellant were not known to each other; the appellant had not studied with the victim and the appellant had never met the victim before. Therefore, the appellant could have no reason or motive to commit an acid attack on an unknown person, that too, inside her home.
Third, it has been submitted that according to the prosecution case, at the time of the incident, in the month of September, the victim was sleeping in her house, at night, wearing a blazer, covered with a blanket. Also, the blanket, bed sheet, mattress and pillow were claimed to have been burnt by acid. However, no item of bedding was recovered by the police and no such item was exhibited during trial. It is further submitted, since the incident occurred in the month of September, it could not have been so cold as may have required the victim to wear a blazer and also be covered with a blanket, while sleeping at her home. In absence of recovery of any item of bedding, it is submitted, the victim was assaulted outside her home by someone other than the appellant and that the latter has been falsely implicated owing to the fact that the family members and relatives of the victim who were in the Committee of Management of the Ravidas Mandir wanted the shop under tenancy of the appellant's father to be vacated.
In this light, it has been submitted, the fact that the informant and the scribe of the F.I.R., both disproved the date and time of the FIR and also the fact that neither the blanket not the bed sheet nor the mattress nor the pillow were recovered, coupled with the fact that the victim claimed to be wearing a blazer clearly proves that the acid attack had taken place out side the house of the victim and not in the manner narrated by the prosecution. The prosecution story is false and motivated and in any case more than reasonable doubt exists in that story and therefore the appellant may be acquitted.
Learned AGA on the other hand submits that in the instant case, minor inconsistencies apart, there is consistent testimony of the three prosecution eye witness to prove the prosecution story. He submits, the reason or motive was neither required to be established by the prosecution and the lack of it, if at all, cannot be urged by the defence in view of an otherwise consistent case having been proven.
Coming to the allegation of ante-dating of the F.I.R, he submits there is no discrepancy in the date and time of the FIR. Though the first informant / mother of the victim / P.W. 2 did state during her cross examination that she had gone to the police station on the next day, to lodge the F.I.R. at about 2:30 p.m. after visiting the hospital, however, such discrepancy is minor in as much as first, admittedly the evidence was recorded during trial one and a half year after the incident, due to which some discrepancies are bound to arise due to limitations of human mind to recall with exactness, events of the past. Second, such discrepancy does not falsify the F.I.R. allegations if her statement is read in entirety. The informant had thus stated, upon the incident having occurred, she had first taken the victim to the police station. This fact is stated to be wholly corroborated from the G.D. entry which clearly records the presence of the informant at the Police Station at 2.35 am on 23.9.2010. The report had been written and thereafter the victim had taken to the government hospital at Saharanpur from the police station. This fact, is stated to be further corroborated and verified both from the G.D. entries wherein the 'majroohi chhithi' is also shown to have been issued at that time. Third, the name of the police constable Jag Pal Singh who had taken the victim to the hospital and got her examined at 3.55 a.m is found recorded both in the G.D. and also the injury report. It clearly proves, that the victim had in fact been first taken to the police station and from there to the hospital and not otherwise. Thereafter, the informant had stated that she had gone to the police station on the next date at about 2:30 p.m. to lodge the report. This sentence appearing in the later part of the entire statement of the informant cannot be read in isolation or out of context. Read in its entirety, the statement clearly establishes that though the informant had first taken the victim to the police station and thereafter to the hospital, immediately after the incident, she again visited the Police Station on the next date at about 2:30 p.m. which visit she had, in her own way, described to have been made in connection with lodging the report.
It has been submitted that the statement of the informant cannot be stretched and and it cannot be read out of context and an inconsistency in such statement is being tried to be inferred by artificial reasoning, though no such inconsistency really exists. The learned A.G.A. would submit, there is no challenge raised to the genuineness of the G.D. entries and the Injury Report or as to the correctness of the contents thereof. Similar response has been offered to the argument advanced by learned counsel for the appellant, on the basis of the statement of Shefali, the younger sister of the victim. He submits, the G.D. entries having remained unquestioned during the trial and no cross-examination of the police authorities having been carried out on this vital aspect, doubt if any is only a minor doubt and not a reasonable doubt as may prove the entire prosecution story false.
He therefore submits, the challenge being raised to the date and time of the F.I.R. being registered is unfounded. In this regard, reliance has been placed on a division bench decision of this court in Rupa and Ors. Vs State of U.P. and Ors., Criminal Appeal No. 148 of 2004, decided on 11.1.2017, wherein the division bench held that the F.I.R. cannot be held to be ante-timed since the G.D. entries remained unquestioned and no suggestion had been made during the long drawn cross-examination of the witness, that he had not lodged the F.I.R. at the time recorded in the G.D.
Alternatively, it has been submitted, even if it may be assumed, purely for the sake of argument, that there was some inconsistency with respect to the time of registration of the F.I.R., the same would be inconsequential in view of the otherwise consistent prosecution story. Reliance has been placed on a decision of the Supreme Court in State of M.P. Vs Mansingh and Others, (2003) 10 SCC 414 wherein it has been held, if the date and time of the FIR is suspicious, the prosecution version is not rendered vulnerable but the Court is required to make a careful analysis of the evidence in support of the prosecution case. Thus, it has been submitted, the G.D. entries being unquestioned and there existing an otherwise consistent prosecution testimony as to the acid attack having been carried out by the appellant, the argument of ante-timing of the F.I.R. does not survive and/or looses its relevance.
Further, reliance has been placed on another decision of the Supreme Court in the case of Rajesh Singh and Others Versus State of U.P., (2011) 11 SCC 444 to submit, in absence of any significant cross-examination of the 'panch' witness and the police officials, particularly, on the aspect of alleged ante-timing of the F.I.R., the entire prosecution story cannot be thrown out, when the same had been proved by an eye witness. To that end reliance has also been placed on another decision of the Supreme Court in the case of Balwan Versus State of Haryana, 2014 (87) ACC 697 wherein delay in lodging the F.I.R. was ignored in reaching the conclusion of guilt, arrived on the basis of reliable testimony of eye witness.
Then as to the plea set up by learned counsel for the appellant that no item of bedding had been recovered it has been submitted that such fact cannot lead to an inference that the incident had not taken place inside the house, in view of the other cogent, consistent and unshaken evidence available on record to establish that the incident had in fact taken place inside the house. The fact that the victim may have been wearing a blazer, it has been submitted, is again not of any vital importance, in light of the otherwise credible evidence available that the victim had been assaulted at her home, inside her room. In any case the victim had categorically stated she was studying up to 11:00 p.m. in the night when due to power outage she went to sleep.
As to the submission advanced by learned counsel for the appellant that there could have been no motive or reason or occasion for the appellant to have assaulted the victim with acid, that too inside her house, it has been submitted that motive has been attributed by the victim upon her categorical statement that after pouring acid only the victim who had stated words to the effect that now (after the acid attack), her 'ghammand'/pride would be destroyed. Also, reference has been made to the statement made by the mother of the victim wherein she did disclose an earlier incident where the applicant had threatened to kill the victim. It led the mother of the victim to lodge a complain to the family of the appellant. It is thus stated that the appellant had deliberately assaulted the victim with acid.
Having considered the argument so advanced by learned counsel for the parties, in the first place, there does not exist any reasonable doubt as to the timing of the F.I.R. on the basis of the testimony of the informant and the scribe of the F.I.R. Those testimonies have to be read in entirety and alongwith the other unrebutted evidence in the shape of G.D. entries as also the 'majroohi chhithi'. It being proven from the G.D. entries that the informant reached the police station that was only 1.5 kilometer (as per the F.I.R.) from the place of occurrence, along with the injured and it being further proven that the 'majroohi chhithi' had been produced before the doctor at the time of medical examination of the injured, does prove that the incident had been reported to the police at the relevant time. Thus, the prosecution had sufficiently proved the fact that the injured had been first taken to the police station by the informant and she had thereafter been taken to the Hospital for treatment. The alleged inconsistency that may exist with respect to the actual lodging of the F.I.R., in the background of aforesaid proven facts, looses its impact. It is the other evidence led by the prosecution, that would have to be examined to determine whether the prosecution story had been proven beyond reasonable doubt.
Then, it appears, in such circumstance, there is nothing to doubt the statement of 'A' that before falling asleep, she had been studying upto 11 p.m. on 22.09.2010, when the lights went out due to power outage and she went to sleep. Therefore, since the victim had fallen asleep in the midst of the night, while studying, due to sudden power outage, it cannot be said that the incident must have taken place outside of the house, merely because the victim may have been wearing a blazer while studying (leaving aside the doubt whether it was a 'blazer' or a 'bra' that had been recovered).
In any case it was not the case of the prosecution that the victim was wearing a blazer and had also covered herself with a blanket as she went of to sleep. The victim never stated that she had actually covered herself with a blanket while sleeping. No cross-examination was carried out on that aspect or how the blanket got burnt with acid. Neither the extent of burns or acid on the blanket was examined or proved, as may allow for any argument to be made on that count. Therefore, that argument does not survive.
The reason as to why the investigating agency did not recover the items of bedding during the investigation, it is seen, it may be an error in the investigation. However, in any case, in absence of any substantial cross examination having been conducted on that count either, no reasonable doubt arises that the attack did not take place inside the house. The argument, though attractive, does not have the limbs to stand, in absence of such cross examination on vital aspects. Consequently, there is no reason to doubt the prosecution story on that count.
As to the alleged lack of motive, it is seen that the prosecution was not burdened to prove existence of motive. It is not a necessary ingredient of the offence for which the appellant has been held guilty. Second, the three eye witness who were examined during trial categorically and consistently testified against the appellant. In fact, on this vital aspect, the prosecution story is throughout consistent and admits of no doubt. There is less than a trivial discrepancy in the F.I.R. narration and evidence led during trial. All three witness proved that the appellant entered the house from the back side, came down the terrace using the stairs, poured acid on the victim from a plastic can, threw the near empty can outside the door of the informant's room and escaped through the front door of the house after pushing away the informant and her daughters who tried to catch hold of him. Despite extensive cross examination, no inconsistency emerged in that narration of facts. Thus there is no reason to doubt the presence of the appellant at the scene of crime or of his involvement in the crime. The incident being of late night and the place of occurrence being inside a house, such consistent testimony has to be given due weight. Since no other eye witness could be expected to be present, in face of such direct evidence, the aspect of motive, in any case loses its relevance.
Also, the acid attack being an undoubtable fact, in any case the victim would have no reason to falsely implicate any person. The suggestion offered by the defence, of the appellant having been named on account of a tenancy dispute, is too far fetched, unbelievable and weak. In any case, upon going through the entire material on record, including all statements that were recorded soon after the incident, it appears the appellant was named by the accused promptly, naturally and truthfully and not by way of an after thought.
The learned court below has considered and appraised the evidence and has thereafter reached a firm conclusion of guilt of the appellant on valid reasoning that does not admit of any doubt.
As noted above, even in this appeal, there is no reason to doubt the prosecution story as may warrant any interference in the conviction and/or sentence awarded to the appellant. The criminal appeal lacks merit and is dismissed. The appellant shall serve out his remaining sentence.
Order Date :- 23.08.2018 Lbm/-