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Judgment
This appeal by the sole appellant is directed against the judgment dated 04.12.2006, passed by First Additional Sessions Judge, Hoshangabad in S.T.
No. 252/2005, whereby appellant has been found guilty for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to life imprisonment and fine of Rs.25,000/- and in default of payment of fine, to further suffer rigorous imprisonment for two years.
It is an undisputed and admitted fact that injured Hemlata (P.W.-3) and appellant knew each other since 1999 and were in constant contact and used to long conversation on phone. Injured Hemlata has been tying Rakhi to the appellant and they treated each other as brother and sister. It is also not disputed that the appellant not only gave a computer to the injured for her own use but also taught her computer.
According to the prosecution, on 10.04.2005, appellant invited Hemlata (P.W.-3) to Palash Restaurant around 2-3 O'Clock in the afternoon, on the pretext of giving her the admit card, however, when she reached the hotel, he insisted and pressurized her to marry him. When his proposal for marriage was resisted and not accepted by Hemlata (P.W.-3), he poured acid on her face and body and ran
away. It has been further alleged that injured Hemlata ran out of the cabin and collided with waiter Ramdas, who in this process also received some acid burns.
Someone from the restaurant had informed the police.
Sudhir Arjariya (P.W.-12), A.S.I., on receiving information rushed to the place of incident, where he found injured lying half conscious on the floor and immediately took her to the district hospital, Hoshangabad, where she was examined by Dr. Sudhir Vijayvargiya (P.W.-1) and referred to Hameedia Hospital, Bhopal and thereafter admitted in LBS Hospital, Bhopal for further treatment, where she was treated by Dr. Anand Kale (P.W.-6).
Dr. Sudhir Vijayvargiya (P.W.-1) and Dr. Anand Kale (P.W.-6) had indicated that the injured suffered total 45% burn injuries caused by acid, which were sufficient to cause death, if not attended by medical aid at appropriate time. Acid burns has caused disfigurement to the face and body of the injured and she had to undergo several corrective and curative surgeries for her treatment.
Dehati Nalishi was recorded at the district Hospital, Hoshangabad at about 4.00 P.M., on the basis of the information supplied by the injured Hemlata (P.W.-3). On the basis of Dehati Nalishi (Ex.P-3),
criminal law was set in motion. After completion of the investigation, the accused was charged for committing offences under Sections 326 and 307 of the Indian Penal code. The appellant pleaded not guilty and was tried for aforementioned offences. There were 12 witnesses examined on behalf of the prosecution.
Pradeep Vishwas (P.W.-5), who was witnessed to the seizure has turned hostile.
The stand taken by the accused during the trial was that he had always helped Hemlata (P.W.-3) with computer and in getting a job and due to this reason, Hemlata (P.W.-3) developed feeling for him. He has further stated that she did not like her fiance and wanted to marry him. When appellant refused her advances and proposal, she threatened to pour acid on herself. Appellant tried to stop her from doing so, and in the scuffle, acid accidentally fell on her and some got sprinkled on accused and the waiter Ramdas, who also tried to take away the glass of acid from her. He had examined four witnesses in his defence.
The trial Court after analysing the oral and documentary evidence on record, has recorded a finding against the appellant and sentenced him as mentioned hereinabove. The trial Court has discarded the evidence of the defence witnesses and has relied only on the evidence of injured Hemlata (P.W.-3), who was the victim of the acid pouring. The fact which weighed heavily with the trial Court was the disfigurement and pain suffered by the injured P.W.-3.
The reasoning for not believing the defence version was that if P.W.-3 had wanted to die, she would be considered a less painful and alternate method for taking her life.
The learned counsel appearing for the appellant submits that there is much contradictions and omissions in the evidence of injured witness and as such, ought not to have been relied upon by the trial Court.
The learned counsel appearing for the appellant, by taking this Court through the evidence of P.W.-3 and P.W.-4 and their 161 statements, has pointed out various omissions and contradictions in the statement of these witnesses. It is submitted that initially P.W.-3 has denied the fact that appellant had gifted her the computer and giving her regular tuition, whereas her mother Savitribai (P.W.-4) has admitted in para 12 of her cross-examination that accused/ appellant used to come every day at 7 O'Clock to teach computer to Hemlata (P.W.-3). It is pointed out that though P.W.-3 had denied having regular phone conversation with the accused but the call details available on record, reflects otherwise.
Learned counsel further submits that the prosecution has failed to examine the key witness, Vibha Choure and waiter Ramdas, who also suffered burn injuries in the incident and who could have thrown light on the genesis of the incident and thus has failed to prove the case beyond reasonable doubt.
Per contra, Shri Vaibhav Tiwari, the learned
Govt. Advocate for the respondent/State has submitted that the Court below on the basis of analysis of evidence of injured witness P.W.-3, as well as keeping in mind the disfigurement suffered by P.W.-3, has rightly held the appellant guilty of offence under Section 307 of the I.P.C.
We have heard the learned counsel for the parties at length and carefully and meticulously perused the record of the trial Court and the evidence adduced by the parties.
It is clear from the case diary statement (Ex.D-1) of Hemlata (P.W.-3) that on 09.04.2005, somebody called her fiance on his mobile to warn him against her and she had doubt that it could only be the appellant. On the same day, appellant informed her that he had taken her admit card from the College and asked her to come to Palash Restaurant to collect it, which she refused and instead asked the accused to deliver the admit card at her residence.
However, in the statement made in the Court, Hemlata (P.W.-3) has stated that on 10.04.2005, her friend Vibha Choure called her at 8 O'Clock in the morning and asked her to go to Palash Restaurant to meet the accused. She has further stated that though, she had first refused to meet the accused, but however, on the insistence of Vibha Choure, she went to meet him at the restaurant. As per her own version, she had sat in the restaurant for more than one and a half hour, where, in between that time the appellant went out of the restaurant twice. According to P.W.-3, first time when the accused came back, he insisted and pressurized her to marry him and threatened her with knife and theremocol cutter. However, on her asking, he gave the knife and theremocol cutter to her.
Thereafter, he went out again. After some time, when he returned, he was hiding something in his hand and asked her to go with him to one Pramod Tiwari's house, and on her refusal, he threw acid on her.
It is evident from the evidence of P.W.-3 that she was extensively cross-examined on her relationship with the appellant and his conduct and behaviour. She has very consistently stated that prior to the incident, behaviour of the appellant towards the injured was brotherly and he had never given her any reason for concern or alarm. She has also admitted that earlier also 3-4 times, she had sat with the appellant in the same cabin of Palash Restaurant, but appellant never misbehaved or displayed his feelings with her.
From analysis of the the evidence and the case diary statement of injured P.W.-3, it is clear that prior to the date of incident, behaviour of the appellant towards P.W.-3 was brotherly and respectful and he had never given her any reason for alarm or concern. It is also evident that appellant was a regular visitor to the house of Hemlata (P.W.-3), and taught her computer, which is also corroborated by Savitribai (P.W.-4), her mother in her cross-examination, wherein she has stated that appellant comes every day at 7 O'Clock to teach computer to P.W.-3. Therefore, there was no reason for the accused to call Hemlata (P.W.-3) at Palash Restaurant for giving her the admit card, as alleged, as he could have given it to the injured at her residence, as asked.
Apart from this, once, when on 09.04.2005, Hemlata (P.W.-3) has told the appellant to deliver the admit card at her residence, there was no reason for her to go to the restaurant on 10.04.2005 to collect the same from the appellant. There also, she sat for more than one and half hour, during which time, he not only insisted and pressurized her to marry him but also threatened to harm her with knife and thermocol cutter. According to P.W.-3, appellant went out of the restaurant twice but despite being threatened and despite having ample opportunity to leave the place, she admittedly kept sitting in the cabin and did not raise any hue or cry for help, nor called anyone for help, for the reasons best known to herself.
From the aforediscussed facts and the conduct of the injured P.W.-3, it is clear that injured Hemlata (P.W.-3) has not come out with whole truth and concealed and suppressed the material facts. The knife and the thermocol cutter used by the appellant to threaten the injured P.W.-3, was not recovered from the place of incident, but was seized from the injured herself on 29.05.2005 at LBS hospital, Bhopal. As per crime detail form (Ex. P-91), pieces of her clothes and sandals were recovered from the place of incident, but surprisingly she had kept the knife and thermocol cutter with her all this time, even when she was admitted in District Hospital, Hoshangabad and even when she was shifted from Hoshangabad to Hameedia Hospital and then to LBS Hospital, Bhopal.
Deepak Sontake (D.W.-1), who knew both, appellant and injured Hemlata, has claimed to be an eye witness and supported the story of appellant.
According to him, he was sitting in the restaurant, when Hemlata came and sat in the cabin and thereafter appellant came. He heard them arguing.
According to this witness, P.W.-3 was pressurizing the appellant to marry her and threatened to kill him.
When he refused, she took out a bottle from her purse and poured it in a glass and tried to pour it on herself.
Appellant and one waiter Ramdas who was serving, tried to stop her and snatched the glass from her and in this scuffle, some of the acid got sprinkled on them also.
As per prosecution, P.W.-12 Sudhir Arjariya (ASI), took the injured to the District Hospital, Hoshangabad and recorded Dehati Nalishi (Ex. P-3) at
4 P.M., whereas, Dr. Sudhir Vijayvargiya (P.W.-1), who has treated the injured (P.W.-3) has stated that Hemlata was brought to the hospital at 4.30 P.M. by one Murdidhar Hasani. P.W.-1 had stated that Murlidhar Hasani and other persons, who had come with Hemlata had informed him that Hemlata got burned due to pouring of acid. This Muralidhar Hasani has also not been examined by the prosecution. Apart from this, P.W.-5 Pradeep Vishwas, witness of the seizure memo has denied that the articles were seized before him.
From a perusal of record, it is clear that the prosecution has not examined the material witnesses, who could have unfolded the genesis of the prosecution case. Vibha Choure, who allegedly rang
up P.W.-3 Hemlata and forced her to go to the restaurant to meet the accused was not examined.
Likewise, Ramdas, the injured waiter was not brought before the Court. Though, it has come on record that he was taken to the hospital for medical examination by one Savita Ganjam (P.W.-10) for MLC. His shirt (Article F) having acid marks and perforation, was sent for examination to FSL, Sagar and was found having acid stains on it. Apart from this, there must be other persons present in the restaurant, who must have see the incident, as it is unlikely that this activity would have gone unnoticed by the persons present in the restaurant and who took the injured to the hospital, but none of them have been examined by the prosecution.
On examination of the oral and documentary evidence produced on record, it could not be said with certainity, as to what were the circumstances or the exact facts of the incident, but it is doubtful that the incident took place in the manner suggested by the injured (P.W.-3). The discrepancies, omissions and contradictions in the evidence of injured Hemlata (P.W.-3), in no circumstances are minor in nature and is vital for disbelieving and discrediting her evidence.
On account of the aforesaid contradictions and omissions, we are of the considered opinion that the statement of injured witness (P.W.-3) is not of unimpeachable quality and in view of the several lacunaes pointed out by us and the serious omission and contradictions in the case diary statement and the statements made before the Court and the case put up by the prosecution, the story put up by the defence sounds more plausible, contrary to the evidence of injured witness, the benefit of doubt thereof must go to the accused, considering the fact that he instead of running away had immediately surrendered himself in the police station as is evident from para 3 of Bhupendra Singh (P.W.-11), S.I.
In the case of Rajiv Singh Vs. State of Bihar (2015) 16 SCC 369, the Supreme Court has held:
It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In unmistakeable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.
The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh Vs. State of Rajasthan (2013) 5 SCC 722 as succinctly summarized in para 21 as hereunder :
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
In supplementation, it was held in affirmation of the view taken in Kali Ram vs. State of H.P . (1973) 2 SCC 808 that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
In view of the aforesaid facts and circumstances of the case, we are of the considered opinion that the impugned judgment dated 04.12.2006 passed in S.T. No. 252/2005 by the First Additional Sessions Judge, Hoshangabad, cannot be sustained
and deserves to be and is hereby set aside. Giving benefit of doubt, the accused/appellant is acquitted of the alleged offence punishable under Section 307 of the Indian Penal Code.
The appeal filed by the appellant is allowed.
The appellant be accordingly set free forthwith, if not required in connection with any other case.