1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.919 of 2001 Old No. 1182 of 1999 Babu Lal …Appellant State of U.P. (Now Uttarakhand) and others …Respondents Sri Pradeep Hariya, learned counsel for the appellant. Sri Nandan Arya, learned A.G.A. for the State/respondent No. 1. Sri Anil Dabaral, learned counsel for the respondent Nos. 2 & 3. Dated 11th June, 2010 Hon’ble Nirmal Yadav, J. This appeal has been preferred by appellant/complainant Babu Lal against the judgment and order dated 10.02.1993 passed by Munsif Magistrate, Rishikesh District Dehradun whereby respondents Sharvan Kumar and Shivdhar have been acquitted for the charges punishable under section 326 read with section 120-B of the Indian Penal Code, 1860 (for short “I.P.C.”). The facts in brief are that appellant/complainant Babu Lal filed a criminal complaint in the court of Munsif Magistrate, Rishikesh District Dehradun on 07.07.1989 against respondents Sharvan Kumar and Shivdhar by which it is submitted that Rambhilor father of the appellant was working in the Irrigation Department and was residing in quarter no. D-57 Bairaj Colony, Rishikesh and both the respondents were also residing in the adjoining quarters. Respondents were having grudge with the father of the 2 complainant as he advised the respondents with regard to the visit of antisocial elements in the house of Sharvan Kumar. Even five months prior to the present occurrence, both the accused/respondents had come with the intention to kill my father but he was saved with the intervention of the neighbours. The accused however, threatened his father with dire consequences. During the night intervening 29/30.04.1989 at about 1.30 a.m. Babu Lal complainant was sleeping on the roof and his father Rambhilor (PW-2) was sleeping in the courtyard of his house. Accused/respondents Sharvan Kumar and Shivdhar threw the acid on the face and head of his father. On hearing the shrieks of his father, complainant came and saw that Sharvan Kumar and Shivdhar were running towards their houses. Condition of his father was serious therefore, complainant removed him to Civil Hospital. While lifting his father, complainant had also received burn injuries (Acid burn) on his hand and chest. Thereafter he reached Police Station, Rishikesh to report the matter but he was informed that the report could be lodged at Police Station, I.D.P.L. and thereafter he got the report scribed by Ramarav and submitted the same in the police station I.D.P.L. He further averred that complainant is an illiterate person and he does not know how to read and write, he only knows how to put his signature. Later on he came to know that Ramarav had connived with the accused persons, thus he did not mention the correct facts in the report. According to the complainant, he submitted the report alongwith medico-legal report of his father in the police station, I.D.P.L. He further averred that Ramarav in connivance with the accused persons got the signature of the complainant on the some plain papers. Thereafter complainant came to know that accused persons were released by the police. Accused/respondents did not 3 give any expenses for the treatment of his father. Though accused/respondents had promised in the presence of Ramarav to reimburse the expenses incurred for the treatment of his father to him. According to the complainant, right eye of his father was totally damaged. He also received grievous serious injuries on the head. He also stated that both the accused with conspiracy had caused such injuries to his father, which could result in his death and he would not interfere in their antisocial activities. It is thus, pleaded that accused/respondents be convicted under sections 326/307/34 and 120-B IPC. Complainant made the statement under section 200 Cr.P.C. and accordingly, both the accused/respondents were summoned under sections 326 and 120-B I.P.C. In order to prove its case, the complainant appeared himself as PW-1 and produced injured Rambhilor, father of the complainant as PW-2, Dr. S.N. Chandel as PW-3 and Head Constable Bir Singh Bisht as PW4. On the other hand accused/respondents Shivdhar appeared as DW1 and Sharvan Kumar appeared as DW2. The accused/respondents were examined under sections 313 Cr.P.C. and they denied the entire allegations levelled against them and it is stated that they have been falsely implicated on the basis of suspicion only. After taking into consideration the entire evidence available on record, learned trial court came to the conclusion that the complainant has not been able to prove 4 the allegations against the accused persons beyond doubt. Learned trial court further came to the conclusion that the testimonies of PW1 Babu lal and PW2 Rambhilor are contradictory to each other as well as there are material contradiction in the statement of complainant before the court and in the report submitted to the police. A reference has been made to the compromise (paper no.Kha-1) entered between the complainant and accused persons where in para no.2, it has been categorically stated that the names of the accused persons were mentioned in the first information report on the basis of suspicion. This fact has been admitted by PW1 Babu Lal in his cross examination also. It has further been mentioned in the compromise that some unknown persons had thrown acid on Rambhilor (PW-2). However, accused/respondents were asked to pay Rs.2000/- for the treatment of Rambhilor as names of the accused/respondent were mentioned in the First Information Report on the basis of suspicion and to avoid any further litigation in future. It has further been observed that there is no evidence on record except the statement of PW1 complainant that accused persons had thrown the acid on Rambhilor (PW-2). Heard Sri Pradeep Hariya, learned counsel for the appellant, Sri Anil Dabral, learned counsel for the respondent Nos. 2 & 3 and Sri Nandan Arya, learned A.G.A. for the State/respondent no.1 and perused the material available on record. Learned counsel for the appellant submitted that the statement of the appellant before the court below is fully supported and also corroborated by the statement of injured 5 Rambhilor (PW2) and medical evidence. He further argued that one eye of (PW2) Rambhilor (father of the complainant) was totally damaged and he received injuries on his head and ears also. Learned trial court has acquitted the accused persons merely on the basis of minor contradiction. On the other hand, learned counsel for the accused/respondents submitted that from the statement of PW-1 Babu Lal and PW-2 Rambhilor, it is evident that they were inimically disposed towards the accused persons and therefore, they have been falsely implicated. On the careful consideration of the rival submissions made by the learned counsel for the parties and evidence available on record, this Court is of the view that no ground for interference with the judgment and order dated 10.02.1983 passed by the trial court is made out. Learned counsel for the appellant could not point out any perversity or illegality in the conclusion arrived at by the learned trial court. Admittedly, the occurrence took place in the dead of the night and the complainant was sleeping on the roof while injured was sleeping in the courtyard of his house. As per the complainant, he woke up on hearing the shrieks of his father and thereafter he saw Sharvan Kumar and Shivdhar accused/respondents running towards their houses. However, this fact does not find mention in the first information report submitted by complainant before the police nor this fact finds mentioned in the compromise (paper Kha-1) entered between the parties. Complainant Babu Lal (PW-1) also admitted in his cross examination that compromise (paper Kha-1) was signed by him and thumb impression was put by his father also. It has been clearly 6 mentioned in the compromise (paper no.Kha-1) that some unknown persons had thrown acid on Rambhilor (PW-2), but the names of the accused persons were mentioned in the F.I.R. on the basis of suspicion and due to this reason accused/respondents had agreed to pay Rs.2000/- for the treatment of injured Rambhilor (PW-2) to the complainant to avoid any further litigation. From the perusal of the entire evidence on record, I am of the view that complainant has failed to prove the allegations levelled against accused persons beyond reasonable doubt. Rather there is no evidence on record to connect the accused persons with the alleged occurrence. Accordingly, I find no merit in the appeal and the same is dismissed. (Nirmal Yadav, J.) 11.06.2010 JKJ 7