Full Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.414 of 2011 ======================================================= Santosh Kumar Sharma S/O Jagdish Sharma, R/O Village- Basawan Rai Tola, Police Station-Piro, District Bhojpur. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s ======================================================= Appearance : For the Appellant : Mr. Rana Pratap Singh, Sr. Advocate Mr. Ravindra Kumar, Advocate For the Informant : Mr. Sarveshwar Tiwary, Advocate For the State : Mr. S.N. Prasad, Additional Public Prosecutor Mr. Sujit Kumar Singh, Additional Public Prosecutor ======================================================= CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA C.A.V. JUDGMENT
Date:
12. -09-2013 Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.
2. The solitary appellant has preferred this appeal against his conviction for the offence under section 341, 307 and 326 of the Indian Penal Code and respectively sentence to undergo simple imprisonment for one month and rigorous imprisonment for ten years with fine of Rs. 1,00,000/- and in default, further to undergo rigorous imprisonment for two years, but no separate sentence was awarded for the offence under section 326 of the Indian Penal Code, however, both the sentences were to run concurrently, as awarded vide judgment dated 29th March 2011 by learned IInd Additional Sessions Judge, Bhojpur at Ara, in Session Trial No. 141/04 arising out of Piro P.S. Case No. 202 of 2001, G.R. No”
2793. 2001.
3. The prosecution case in short as reveal from the fard-e-beyan (Exhibit - 1/1) of Saryu Prasad Singh (P.W.
5) recorded on 02.12.2001 at about 10.00 a.m. at his village by the Officer Incharge of Piro Police Station is that yesterday evening (01.12.2001) at about 7.30 a.m. while his daughter- in-law Dharam Devi (P.W.7), grand daughter (P.W.6) the victim Indu Devi and his wife Ramjharo Devi (not examined) while returning after meeting with natural call arrived near the house of one Kashi Nath Sharma (not examined) where the appellant got himself concealed and suddenly threw acid kept in a mug upon the informant and started fleeing from there but could be identified by all the ladies in moon light and on their cry he along with others arrived at the place of occurrence found the victim restless due to injury caused on her face, eyes, hands and shawl was also burnt and immediately his son Raj Kishore Singh (P.W.4) and Ravindra Kumar Singh (P.W.1) took the informant to Arrah Hospital and motive behind the occurrence as stated is roughly two years ago the appellant with intend to commit theft had trespassed in dalan caught red handed and was assaulted but under pressure of villagers no case was instituted. The above fard-e-beyan was recorded in presence of co-villager Yogendra Singh (not examined). The police instituted the case during investigation also received fard-e-beyan of the victim 3 (exhibit -
1) recorded at P.M.C.H. Rajendra Surgical Block, R.S. Ward, Bed No. 56 at 12.15 hours on 22.12.2001 by A.S.I. R. Singh (not examined) of Pirbahore Police Station, Patna, who not only stated the facts as narrated in Exhibit - 1/1, but added that she is aged about 18 years recently married in same year but had not gone to her in-laws house she also included with her companion one Bhagmati Devi (chacheri Chachi P.W.8) and apart from the appellant his grand mother was also there and at the instigation of grand mother Fulbaso Devi (an accused summoned under section 319 Cr.P.C. but ultimately acquitted), she further stated that the appellant had also threatened to shot at her if she cries and had also shown pistol to her, and immediately thereafter from Ara she was referred to P.M.C.H. Patna, where she is under treatment and was unable to speak so. Earlier no statement could be recorded and she put her L.T.I. since she is not in a position to see from her eyes. This statement was recorded in presence of Raj Kishore Singh (P.W.4) and Kameshwar Singh (not examined). Police after concluding the investigation submitted charge-sheet initially against appellant and subsequently exonerated Fulbaso Devi finding no material against her.
4. However, after taking cognizance, charge under section 341, 327 and 326 of the Indian Penal Code was framed and commenced on 6th October 2004, wherein initially 4 five witnesses P.W.1 Ravindra Kumar Yadav examined on 27.12.2004, P.W.2 Heera Lal examined on 7.12.2005, P.W.3 Sanjeev Kumar examined on 23.02.2005, P.W.4 Indu Devi examined on 03.06.2005 and P.W.5 Md. Sallauddin examined on 28.06.2005 who declared hostile.
5. Thereafter on prayer of prosecution made under section 319 Cr.P.C. appellant’s grand mother Fulbaso Devi was also summoned. Charge for the offence under section 341, 307/34 and 326/34 of the Indian Penal Code on 7th October 2005 was framed against her, thereafter prosecution examined altogether ten witnesses including P.W.1 to P.W.4 earlier examined and discharged except Md. Sallauddin who was earlier declared hostile. P.W.1 Ravindra Prasad Singh (earlier examined as P.W.1), P.W.2 Sanjeev Kumar (earlier examined as P.W.3), P.W.3 Heera Lal Yadav (earlier examined as P.W.2), P.W.4 Raj Kishore Singh, P.W.5 Surya Prasad Singh (informant), P.W.6 Indu Devi, the victim (earlier examined as P.W.4), P.W.7 Dharam Devi, P.W.8 Bhagmati Devi, P.W.9 Ravindra Kumar Singh, Investigating Officer and P.W.10 Dr. Umesh Prasad Sinha, and also produced following documents :- Exhibit - 1 Fardbeyan of Indu Kumari Exhibit - 2 Signature of Suraj Pd. Singh on Fardbeyan Exhibit - 1/1 Farebeyan of Suraj Pd. Singh Exhibit - 3 Injury Exhibit - 4 Prescription of Bilas Netralaya of 5 Indu Devi dtd. 10.1.02. Exhibit - 4/1 O.P.D. Card of Indu Devi AIIMS 6 After close of prosecution case, on behalf of defence, four witnesses were examined, they are D.W.1 Bihari Singh, D.W.2 Chetan Sharma, D.W.3 Ram Raj Sharma, and D.W.4 Sunil Kumar, and also produced documents exhibited which are as follows: - Exhibit - A - Prescription of Dr. S. Baleshi of 19.1.2000 Exhibit - A/1 - Medical certificate of Dr. S. Baleshi dtd. 13.04.04. Exhibit - B - Prescription of Dr. H. K. Singh dtd. 13.06.03 in favour of Smt. Phulbaso Devi. Exhibit - C - Prescription of Dr. Manoj Kumar Ranjan of Phulbaso Devi - two page. Exhibit - D - Admission & Discharge certificate of Gurunanak Hospital, Ranchi, of Phulbaso Devi. Exhibit - E - Prescription of Dr. Mangtoo Ram dtd. 19.09.05.
7. And on consideration of the materials available on record the trial court while acquitting the female accused i.e. grand mother of the appellant and finding the appellant guilty convicted and sentenced him in the manner aforestated giving rise to present appeal.
8. It is contended on behalf of the appellant that apart from the victim two female witnesses P.Ws. 7 and 8, have for the first time been examined in court, they were never examined by the police for reasons best known to the 6 investigating officer. In the earliest statement the informant who is none else than grand father of the victim has not named the female accused and introduced P.W.8 Bhagmati Devi, but, subsequently she has also been introduced by the victim just to increase number of alleged eye witnesses of the occurrence. No sign of acid throwing etc. was found at the place of occurrence. No shawl or other wearing apparels of the victim were produced either before police or during trial and there is also no explanation for the delay in lodging the F.I.R. The learned counsel for the appellant however fairly conceded that though the testimony of the witnesses examined prior to summoning female accused could have been considered against the appellant and only for added accused their fresh examination was required, but in fact, there is practically no difference in their testimonies. Hence, the learned counsel did not intend to make any submission on their earlier statements during trial and further the defence (oral and documentary) both are only in relation to female accused who had already been acquitted. Hence, now there is no relevancy of such material so far appellant is concerned.
9. On the other hand learned counsel representing the informant and Additional Public Prosecutor both while supporting the findings of the court below submitted that the victim has suffered a lot, lost her one eye completely another 7 is badly weaken and further in her youth she has been deserted by newly husband and in-laws, it is more torturous than death, so there should be no leniency towards the appellant.
10. Out of ten prosecution witnesses P.W.1 Ravindra Prasad Singh states about his arrival at the place of occurrence on alarm raised by the females found the victim restless and Dharam Devi (P.W.7), Ramjharo Devi (not examined), Bhagmati Devi (P.W.8) were crying and they said and Dharam Devi intimated that at the instigation of female accused the appellant threw acid upon the victim causing burns on her face, right wrist, left eye and right eye also badly affected, further, shawl and Sweater etc. of the victim was also burnt. He is nothing but a hearsay witness on the point of occurrence got information from Dharam Devi, further states on cries of females. Prior to him Surya Prasad Singh, informant (P.W.5) and Heera Lal Yadav (P.W.3) only had arrived. Further, he states having no talk with the victim Indu Devi rather getting details of occurrence only from her mother Dharam Devi (P.W.7), and also found ditch on left eye. He expressed his inability whether anyone immediately rushed to police station with village chowkidar, he is also unable to state whether mother of the victim was examined by police or not but he also stated for a substantial period with the victim at P.M.C.H. and denied the suggestion that she was not 8 admitted and stayed at P.M.C.H. for more than 21 to 22 days.
11. P.W.2 Sanjeev Kumar, brother of the victim also arrived on alarm and could see the injuries sustained by the victim and details of occurrence he could know from her mother P.W.7 Dharam Devi. His father and Ravindra Singh (P.W.1) brought her to hospital at Arrah, from where she was referred to P.M.C.H. where since there was no proper medication his father shifted the victim to one private nursing home, from where she was referred to Delhi. He further states complete loss of left eye and major loss of sight in right eye and her desertion by husband and in-laws. In spite of lengthy cross examination there is nothing to challenge loss of one eye and loss of sight of another. He expressed his inability whether apparels of victim could be produced before police or not or whether other females were examined or not. He further states about earlier occurrence of unsuccessful attempt of committing theft by appellant and assault etc. About treatment of the victim also he got information from his father and grand father.
12. P.W.3 is Heera Lal Singh who has also stated what earlier witnesses have said. In cross examination states about the details of place of occurrence and nearby land where the females used to go to meet their natural calls as per routine.
13. P.W. 4 is Raj Kishore Singh, father of the 9 victim has stated the version recorded in Exhibit - 1, but getting information about the occurrence after arrival on alarm finding his daughter restless through his wife Dharam Devi, brought her to Sadar Hospital, Arrah, where finding gravity of situation immediately victim was referred to P.M.C.H. where she was brought through Ambulance roughly after months treatment when condition was not satisfactorily improved. He consulted other doctors and got her examined by a private doctor Mangtu Ram, from where she was referred to AIIMS at Delhi where also she was treated for about a month during which left eye was taken off, only thereafter there could be any improvement in right eye. He further states about her desertion by husband and in-laws due to such injuries and dephasing of face. In cross examination, he has given details of the manner in which she was brought to Arrah and P.M.C.H. after two or three days. He came back to his village to manage money and his father, the informant, had returned from Arrah to village by same Jeep, whereon they came to Arrah. In para 8 he says that front portion of full sweater, woolen shawl was also burnt, but inner apparels such as blouse was not affected, consequently a bit sweater and chadar etc. were taken of at Patna. He further says such garments were shown to police but no paper was prepared. In cross examination, para 10, he asserts entire face was affected by the acid and during treatment gradually burns 10 were cured. In para 13 he says about his stay at Delhi during the course of treatment for about a month and further he admits the doctor at P.M.C.H. were not permitting to get her examined by another doctor so just by informing the doctor he brought the victim to private clinic. He was further re- examined and proved exhibit - 4 the prescription of Dr. Mangtu Ram and AIIMS at Delhi at Exhibit - 4/1. In cross examination he says the victim remained at P.M.C.H. till 2nd January 2002. He brought her since there was no proper treatment and at AIIMS she was treated in O.P.D. where one eye was taken of. He further denied filing of xerox copy of the certificate said to be issued by AIIMS, hence it was marked as Exhibit - X for identification. But he asserts himself as Electro Homeopathic Practitioner and denied the suggestion that none of the doctors found complete loss of sight rather doctor Mangtu Ram at Patna prescribed opticals and at AIIMS she was referred only for repairs of eye lid and the certificate issued from there indicates loss of sight only for 30%.
14. P.W.5 is Surya Prasad Singh the informant, a hearsay witness, as regard to occurrence proved his signature (Exhibit -
2) on fard-e-beyan and in cross examination, he admits could not see females of his family going outside to meet natural calls but arrived at the place of occurrence only on their alarm and states getting information from his daughter in law Dharam Devi (P.W.7). Further in para 5 he 11 states sweater and Shawl of the victim was there on her body and within ten to fifteen minutes of the occurrence they proceeded for her treatment. He accompanied till Arrah hospital where they could reach within around 2½ and within ½ hours, thereafter she was referred to P.M.C.H. through returned to village. He has further stated about earlier incident. This witness has explained alleged delay of few hours in lodging the information before the police. It is quite natural for the family to first get the victim treated only thereafter in the natural course one may think about lodging the case on taking the offender at task.
15. All these five witnesses discussed above are undisputedly hearsay witnesses so far manner of the occurrence is concerned, and they are also consistent about getting the information in detail through Dharam Devi (P.W.7) who at the same time was not examined by police under section 161 of Cr.P.C., but she has said nothing more than what the victim has stated in her Fard-e-beyan (Exhibit - 1), and in deposition during trial either as P.W.4 or as P.W.6 after joining the female accused in trial. Though, in cross examination, she states getting her statement before the investigating officer, but why he has not mentioned the same in the case diary, naturally she is unable to explain. Here one thing may be stated that right from earliest statement of the informant she is named as one of the eye witness and the 12 person giving information about the occurrence to the informant and others. It was incumbent upon the investigating officer to record her statement and if he failed to discharge his duty prosecution cannot suffer.
16. By placing reliance upon the decision in Rotash vs. State of Rajasthan, 2006(13) SCALE 18 and Acharaparambath Pradeepan and Anr. vs. State of Kerala, 2006(13) SCALE 600 the Apex Court in a case of Mahendra Singh vs. State of M.P. reported in 2007(3) PLJR 2 SC has clearly observed in para 12 which reads as such:
12. ………………..it is also well-known that deficiency in investigation shall not stand in the way of the court in arriving at a finding of guilt if it is otherwise found to have been proved.
17. In the case of Manoj Singh vs. State of Bihar reported in 2008(1) PLJR 5 also a bench of this court has stated in para 15 which reads as such:
15.