IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 122 of 2007. Judgement reserved on: 14.12.2007 Date of decision: 25.2.2008. Navin Lain …….Appellants Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Pankaj Sharma, Advocate. For the Respondent : Mr. M.L. Chauhan, Addl. Advocate General. Kuldip Singh, Judge. This appeal is directed against the judgment dated 18.4.2007 passed by learned Addl. Sessions Judge-II Kangra at Dharamshala in Sessions Case No.29-N/VII/2003 whereby appellant has been convicted and sentenced under Section 326 IPC and has been ordered to undergo rigorous imprisonment for five years and fine of Rs.10,000/- and in default of payment of fine to undergo further rigorous imprisonment for one month. The fine if realized is ordered to be awarded to complainant Amit Kumar under Section 357 Cr.P.C. 2. The prosecution case in brief is that on 23.10.2002 at about 9.15 A.M. a telephonic information was received at Police Post, Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Rehan informing the police that some person had thrown acid over one person, necessary information was made in the daily diary. PW- 18 ASI Sher Singh recorded statement under Section 154 Cr.P.C. of PW-3 Amit Kumar and there upon FIR Ex,.PW13/A came to be registered at Police Station, Nurpur on 23.10.2002 under Section 307 IPC. 3. The further case is that PW-3 was accompanying the bus bearing registration No.HP-54-3765 as conductor from Jassur to Dhameta and when bus reached near Raja-Ka-Talab, it was stopped there and many passengers alighted from the bus. The complainant also came out from the bus and was standing on the road, the accused came there and threw acid over the face of the complainant from a small bottle which he was carrying in his hand with the intention to disfigure the face of the complainant and to kill him. The complainant tried to save him but still some acid fell over his face. The complainant was taken from the spot to the hospital by some people. The accused used to travel in the bus of complainant from Talara to Raja-Ka-Talab without paying fare and thereby the accused had enmity with the complainant. The complainant was medically examined. During investigation shirt of the complainant was taken into possession along with small empty bottle of acid lying on the spot. The police also recovered another plastic bottle, the report from the Forensic Science Laboratory (FSL) was taken. After completion of the investigation challan was put up against the accused under Section 307 IPC and he was accordingly charged to which accused pleaded not guilty and claimed …3… trial. The prosecution examined 19 witnesses, the statement of accused was recorded under Section 313 Cr.P.C. he denied the prosecution case. The accused examined two witnesses in defence. After conclusion of the trial, learned Addl. Sessions Judge convicted and sentenced the accused under Section 326 IPC as noticed above, hence this appeal. 4. I have heard Mr. Pankaj Sharma, Advocate appearing on behalf of the appellant and learned Addl. Advocate General for the State and gone through the record. It has been submitted on behalf of the appellant that the prosecution has miserably failed to prove the case. The prosecution has also failed to prove the case by examining independent witnesses. There are material contradictions in the prosecution case. The learned Addl. Sessions Judge has not properly appreciated the material on record and has erred in convicting and sentencing the appellant-accused under Section 326 IPC. The learned Addl. Advocate General has supported the impugned judgment and has also submitted that the prosecution has proved the case against the appellant-accused. He has submitted that the learned Addl. Sessions Judge has rightly convicted and sentenced the appellant-accused. 5. PW-1 Dr. Raman Sharma has stated that he examined Amit Kumar on 23.10.2002 at about 1.30 p.m.. According to him there was a chemical superficial and deep burns over face and front of neck. Skin was reddened and bluish in colour, the burns were 3 to 4 percent. Amit Kumar was examined on different dates. The …4… disfigurement on the face and forehead was permanent, injury no.1 was grievous in nature. He issued MLC Ex.PW-1/A which bears his signature. Probable duration of injury was within six hours and poison/acid was used. He gave final opinion Ex.PW-1/B which also bears his signature. PW-2 Dr. R.K. Sharma, Lecturer Deptt. Of Ophthalmology has stated that on 28.10.2002 Amit Kumar was referred for right eye injury opinion. On examination he gave his opinion Ex.PW-2/A, the nature of injury was simple. In cross- examination he has stated that injury in the eye could be due to any infection or chemical like hot diesel etc. 6. PW-3 Amit Kumar has stated that on 23.10.2003 he was working as conductor on bus No. HP-54-3765 and was going on route Jassur to Dhameta. At Raja-Ka-Talab some passengers alighted from the bus. He also came out of the bus and was standing on the road. The accused was sitting in the bus. He demanded bus fare from the accused but he refused. The accused was carrying small glass bottle in his hand in which acid was put and he threw the acid on his face, forehead with the intention to disfigure and kill him. He became unconscious. He was taken to civil hospital, Nurpur and was examined there on 25.10.2003 vide MLC Ex.PW-1/A. The police came to the hospital and recorded his statement Ex.PW-3/A. The police took in possession his shirt Ex.P-1 vide seizure memo Ex.PW- 3/B which also bears his signature. In cross-examination he has stated that half litre of acid was thrown on him. The accused was apprehended on the spot with a bottle in his hand. The shirt was …5… taken into possession on 25.10.2002. He reiterated that the police came to the hospital on 25.10.2002 for the first time and recorded his statement. He was confronted with his statement Ex.PW-3/A under Section 154 Cr.P.C. where it was not recorded that accused was travelling in the bus on the date of occurrence. He was also confronted with the statement Ex.PW-3/A where there is no reference of demand of fare from the accused and his refusal to pay the fare, as a result of which the accused picked up quarrel with him. He has stated that he has no enmity with the accused. 7. PW-4 Suresh Kumar has stated that on 23.10.2002 at about 9.15 A.M. he was working as driver on bus No.HP-54-3765at Raja-Ka-Talab, some passengers alighted from the bus. He heard noise from the back side of the bus and on hearing the noise he went out of the bus and saw that Amit Kumar was having acid on his face. He was saying that accused had thrown acid on his f ace. In cross- examination he has stated that he does not know how occurrence had taken place, since it has not happened in his presence. The bus was full of passengers. PW-5 Bhuri Singh has stated that on 23.10.2002 he was going in Chambial bus which stopped at Raja-Ka- Talab. At about 9.45 A.M. some passengers and conductor came out of the bus and the conductor was standing behind the bus, the accused threw acid on the face of the conductor. He had seen small bottle in the hand of the accused. The injured was taken to Nurpur hospital. In cross-examination he has stated that he had not seen the accused in the bus. Pawan Kumar is the owner of the bus. The acid …6… fell on the forehead and cheeks of the injured. The bottle was not half litre and was less than 250 Ml. The accused was not in the bus. He had not observed any altercation between conductor and accused in the bus. He was on the second last seat. There were 10-15 persons around the accused when he threw acid. He was caught hold by those persons. He denied the suggestion that he was not on the spot. 8. PW-6 Rakesh Kumar did not support the prosecution and was declared hostile. He was cross-examined by the prosecution. He denied that on 25.10.2002 accused in his presence as well as in presence of Ashwani Kumar identified the bottle containing the acid. He denied that police took into possession bottle in their presence. In cross-examination on behalf of the accused he has stated that he had heard that Amit Kumar conductor sustained injuries on his face accidentally. PW-7 Ashwani Kumar has stated that in his presence police recovered one bottle from the lab. He did not support the prosecution and was cross-examined. However, prosecution could not elicit anything favourable in the cross- examination. PW-8 Sanjiv Kumar did not support the prosecution and was declared hostile. In cross-examination he has denied that on 23.10.2002 police took into possession one bottle which was lying on the road. In cross-examination on behalf of the accused he has stated that he met Amit Kumar in the hospital where in his presence on the asking of Pawan Kumar he told that some boys were quarrelling in the bus and he fell down on a seat on a bag and …7… received the injury. PW-9 Pawan Kumar is the owner of bus No. HP-54-3765. He did not support the prosecution and was declared hostile. He denied that on 23.10.2002 one bottle which was lying on the road was taken into possession by police in his presence. In cross-examination by the prosecution he has stated that he has three buses. In cross-examination on behalf of the accused he has stated that on that day he travelled from Raja-Ka-Talab to Rehan at 9 A.M. and Bhuri Singh son of Salig Ram also travelled in that bus. He got down at Rehan. Bus No.HP-54-3765 in which Amit Kumar was conductor was following the bus in which he was travelling. He came to know at Rehan that some boys had quarreled at Raja-Ka-Talab. He went to Raja-Ka-Talab and came to know that the injured was shifted to Nurpur. He met the injured in Nurpur hospital. Amit Kumar told him that he sustained injuries on his face from some chemical by accident by falling on a seat. PW-10 Yashpal did not support the prosecution and was declared hostile. He was cross-examined and nothing favourable to the prosecution was extracted in his cross- examination. In the cross-examination conducted on behalf of the accused he has stated that at Nurpur he came to know that Amit Kumar was injured in some accident. PW-11 HHC Surjit Singh has proved Rapat Ex.PW-11/A. PW-12 constable Surinder Kumar is a formal witness, PW-13 SI Karam Chand has proved FIR Ex.PW- 13/A. PW 14 to PW-16 are formal witnesses. PW-17 R.P. Jaswal has stated that after receipt of report from FSL Junga Ex.PW-17/A he prepared the challan. PW-18 ASI Sher Singh is the Investigating …8… Officer. He has stated that on 23.10.2002 a telephonic information was received at Police Station, Nurpur which was recorded in the daily diary. He went to the spot and recorded the statement Ex.PW- 3/A under Section 154 Cr.P.C. of PW-3 Amit Kumar and there upon FIR Ex.PW-13/A was registered. He took into possession one small empty bottle Ex.P-2 vide seizure memo Ex.PW-18/C which was signed by Sanjeev Kumar and Pawan Kumar. He prepared the site plan Ex.PW-18/H. He also recovered plastic bottle Ex.P-3 containing small quantity of acid from the Lab belonging to the brother of the accused at Raja-Ka-Talab. In cross-examination he has denied that bottle Ex.P-2 was not recovered from the spot. He had shown his ignorance that Bhuri Singh is a cousin of the injured and was called by him from Rehan. This witness was re-examined and in re- examination he has proved application Ex.PW-18/K for medical examination of the injured over which the Medical Officer certified in encircled portion Ex.PW-18/L that the injured was capable of making the statement. PW-19 Sanjay Kumar has proved photographs. In cross-examination he has stated that the small bottle shown in photograph Ex.PW-19/B was taken out by the police from their pocket and then he was asked to get it photographed. 9. In his statement under Section 313 Cr.P.C. accused has denied the prosecution case. He has stated that at Raja-Ka-Talab some passengers started quarreling with each other and exchanged fist blows. They started pushing and pulling each other and some boys gave push to conductor Amit Kumar who fell on his Lap and he …9… struck against bag containing bottles and with the fall of conductor on his lap 2-3 bottles were broken and some chemical came out of the bag which smeared the forehead of Amit Kumar accidentally. DW-1 Tilak Raj has stated that on 23.10.2002 he travelled from Jassur to Rehan in the Chambial bus and Bhuri Singh was also travelling with him in that bus. The owner of the bus was also travelling in that bus. Bhuri Singh told him that he would go to Raja-Ka-Talab as he came to know that his friend Amit Kumar conductor has met with an accident. DW-2 Kishori Lal has stated that on 23.10.2002 he was travelling in Chambial bus from Jassur, the accused was also sitting with him and was holding a bag in his lap. At Raja-Ka-Talab some boys were quarrelling in the bus and the conductor of the bus was pushed and fell on the lap of the accused and thereby conductor sustained injuries over his forehead. A small bottle was broken which caused injuries to the conductor as some chemical from the broken bottle came in contact with the conductor. 10. PW-3 Amit Kumar has stated that he was standing on the road, accused came there and had thrown acid on his face. He has also stated that the accused was sitting in the bus. He demanded bus fare from the accused but he refused. The accused has not denied that he was not travelling in the bus. The defence of the accused is that some quarrel took place inside the bus and some passengers started pushing one another and in that process conductor fell down and his face struck against the bag having bottles filled with some chemical due to which one bottle was broken …10… and chemical spread on his face. It is the case of the accused that he has been falsely implicated in the case. The question is about the prosecution story and the commission of the offence in the manner alleged by the prosecution. 11. PW-3 Amit Kumar got recorded his statement Ex.PW- 3/A under Section 154 Cr.P.C.. In the statement he has stated that he was standing on the road and all of sudden accused came over there and threw acid on his face. He has stated that the accused many times had travelled in his bus from Talara to Raja-Ka-Talab without paying the fare and he had thrown the acid as the accused had enmity with him because of non-payment of fare. In statement Ex.PW-3/A PW-3 has no where stated that the accused was travelling in the bus, he demanded the fare from him and accused did not pay the fare despite demand. He has improved his statement in the Court by stating that the accused was travelling in the bus on that date and on demand he did not pay the fare. PW-3 Amit has stated that police came to the hospital first time on 25.10.2002 and on that date he made the statement. This he has repeated in cross- examination also, therefore, suspicion has been created about the making of the statement Ex.PW-3/A under Section 154 Cr.P.C. by PW-3 on 23.10.2002. PW-5 Bhuri Singh has stated that accused threw acid on the face of the conductor . In his cross-examination he has stated that he has not observed altercation between the accused and the Amit in the bus whereas PW-3 has stated that despite demand of fare the accused refused to pay the fare and he picked up …11… the quarrel with him. PW-5 has also stated that accused was not in the bus again said that he has not seen him, it means PW-5 is not sure about the presence of the accused in the bus. This create suspicion about the very presence of PW-5 at the time of occurrence PW-18 ASI Sher Singh does not know whether PW-5 Bhuri Singh is cousin of the injured . PW-9 Pawan Kumar owner of bus No.HP-54- 3765 has stated that in October, 2002 he had three buses. He travelled from Raja-Ka-Talab to Rehan at 9 A.M. on the date of occurrence. Bhuri Singh had also travelled with him in that bus. He got down from the bus at Rehan. Bus No.HP-54-3765 was following the bus in which he was travelling. In other words PW-9 Pawan Kumar has stated that he and Bhuri Singh were travelling in one bus and PW-3 Amit Kumar conductor was in another bus. Bhuri Singh got down at Rehan. There is no reason to disbelieve the statement of PW-9 owner of the bus in which complainant Amit Kumar was the conductor. The statement of PW-9 has been supported by DW-1 Tilak Raj. PW-5 Bhuri Singh has stated that there were 10-15 persons around the accused when the accused threw acid on the conductor. He was caught hold by those persons but surprisingly no such person was examined by the prosecution. The presence of Bhuri Singh at the place of occurrence is doubtful, therefore, his testimony cannot be relied. 12. PW-4 Suresh Kumar driver of the bus in his examination in chief has stated that Amit Kumar was saying that accused has thrown acid but in cross-examination he has stated that he does not …12… know how the occurrence has taken place, since it did not happen in his presence. Therefore, prosecution cannot take much help from PW-4 . PW-1 Dr. Raman Sharma has stated that the probable duration of the injuries was within six hours and the poison/acid was used. The doctor has not given clear opinion regarding cause of injuries as to whether the injury was due to some poison or acid. The prosecution case is that Amit Kumar sustained injuries on his face due to acid. The recovery of bottle Ex.P-2 from the place of occurrence is also doubtful. PW-3 Amit Kumar has stated that the accused was apprehended on the spot with a bottle in his hand. The prosecution has come forward with the story that bottle Ex.P-2 was taken into possession vide recovery memo Ex.PW-18/B in presence of PW-8 Sanjiv Kumar amd PW-9 Pawan Kumar. Both these witnesses Sanjiv Kumar and Pawan Kumar have denied that police took into possession a bottle from the road side. PW-19 Sanjay Kumar has stated that a small bottle shown in photograph Ex.PW19/B was taken out by the police from their pocket and then he was asked to get it photographed. This proves that the bottle Ex.P-2 which was allegedly containing acid and was used by the accused for throwing acid on the face of the complainant was not recovered from the road side as alleged by the prosecution. The prosecution has not examined any independent witness though the bus was full of passengers. The statement of PW-5 Bhuri Singh does not inspire confidence. The statement of injured PW-3 Amit Kumar cannot be believed as he has made improvement in his statement …13… Ex.PW-3/A. He has reiterated that he made statement Ex.PW-3/A on 25.10.2002 whereas prosecution case is that he made such statement on 23.10.2002. He has stated in his statement that he has no enmity with the accused. The prosecution has failed to prove the case beyond reasonable doubt. The learned Addl. Sessions Judge has not properly appreciated the material on record. He has not drawn proper inference from the evidence. Accordingly, impugned judgment of conviction and sentence is liable to be set aside. 13. The result of the above discussion, the appeal is allowed, judgment dated 18.4.2007 of learned Addl. Sessions Judge(II) Kangra at Dharamshala passed in Sessions Case No.29- N/VII/2/2003, convicting and sentencing the appellant-accused is set aside. The appellant-accused is acquitted of the charge. He be released forthwith, if not required in any other case. ( Kuldip singh) Judge 25th February, 2008 (sks)