Allahabad High Court
Sunil Prajapati vs State Of U.P. on 12 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2502
Author: Anil Kumar Ojha
Bench: Anil Kumar Ojha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. In Chamber Case :- JAIL APPEAL No. - 377 of 2018 Appellant :- Sunil Prajapati Respondent :- State of U.P. Counsel for Appellant :- From Jail,Prashant Vyas,Rajesh Kumar Dubey Counsel for Respondent :- A.G.A. Hon'ble Anil Kumar Ojha,J.
Heard Sri Rajesh Kumar Dubey, learned counsel for the appellant, learned A.G.A. for the State and perused the records.
2. Challenge in this Jail Appeal is the judgment and order dated 13.02.2018 passed by Additional Sessions Judge/Special Judge, S.C./S.T. Act, Gautam Budh Nagar in S.T. No. 750 of 2014 (State v. Sunil Prajapati) arising out of Case Crime No. 992 of 2014, under Section 326Ka, 324, 323, 353, 332 & 308 of I.P.C., P.S. Sector 39 Noida, District Gautam Budh Nagar whereby the Learned Additional Sessions Judge/Special Judge, S.C./S.T. Act has convicted and sentenced the appellant under Section 308 I.P.C. four years rigorous imprisonment and Rs. 2000/- fine in default of payment three months additional simple imprisonment; under Section 324 I.P.C. two years of rigorous imprisonment and Rs. 1000/- fine and in default of fine one month simple imprisonment; under Section 326A I.P.C. 10 years rigorous imprisonment and Rs. 10,000/- fine and in default six months additional simple imprisonment; under Section 332 I.P.C. two years rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine of Rs. 2000/- one month simple imprisonment; under Section 353 I.P.C. one year rigorous imprisonment and Rs. 1000 fine and in default of payment of fine of Rs. 1000/- one month additional simple imprisonment. All the sentences have been ordered to run concurrently.
3. Shorn of unnecessary details, the prosecution case is that the complainant Anil Kumar Sharma lodged an F.I.R. on 20.09.2014 at 16:30 hours against appellant Sunil Prajapati at P.S. Sector 39 Noida, District Gautam Budh Nagar, stating therein that on 20.09.2014 at 11:00 hours, appellant Sunil Prajapati came to the office of the complainant having one plastic jug filled with inflammable substance and poured the same on the injured Jitendra Shandilya and took him out of the office and assaulted on his head several times by brick and iron rod. In the incident, injured Jitendra Shandilya sustained grievous injuries on his head. After beating the Anil Kumar, J.E. and Mithun Operator, appellant fled from there. The appellant has obstructed the government work. Jitendra Shandilya was taken to the Kailash hospital, Sec-27 where he could not be treated properly and then he was brought to Fortis hospital, Sec-62 and was admitted in I.C.U. ward. He received 22 stitches in his head and both eyes were injured and burnt also.
4. On the written report submitted by Anil Kumar Sharma, S.D.O. Electricity Office, a case was registered against the appellant Sunil Prajapati at P.S. Sector 39 Noida, District Gautam Budh Nagar in Case Crime no. 992 of 2014, under Section 326Ka, 324, 323, 353, 332, 308 of I.P.C., P.S. Sector 39 Noida, District Gautam Budh Nagar.
5. Police started investigation, prepared recovery memo of plastic jug and inflammable substance lying on the floor and collected the evidence. Statement of witnesses under Section 161 Cr.P.C. was recorded. After completion of investigation, charge sheet was submitted against the appellant Sunil Prajapati in Case Crime No. 992 of 2014, under Section 326Ka, 324, 323, 353, 332 of I.P.C., P.S. Sector 39 Noida, District Gautam Budh Nagar.
6. The then Chief Judicial Magistrate, Gautam Budh Nagar, on 26.11.2014 committed the case of appellant to the Sessions Court for trial. The Additional Sessions Judge/Special Judge, S.C./S.T. Act on 14.05.2015 charged the appellant under Sections 323, 324, 326Ka, 308, 353 & 332 of I.P.C. Appellant Sunil Prajapati denied the charges and claimed trial.
7. Prosecution was called upon to adduce evidence. Evidence of PW1 Anil Kumar Sharma complainant/informant, PW2 injured Jitendra Shandilya, PW3 J.E. Anil Kumar, PW4 Dr. Amit Saxena, PW5 Dr. Surjeet Singh , PW6 S.O. Shiv Prakash Singh, PW7 Avadhesh Kumar Awasthi, PW8 Naresh Kumar were recorded.
8. Statement of appellant Sunil Prajapati was recorded under Section 313 Cr.P.C., appellant denied the evidence and said he has been prosecuted due to enmity.
9. After hearing learned counsel for the prosecution and defence, the then Additional Sessions Judge/Special Judge, S.C./S.T. Act, Gautam Budh Nagar convicted and sentenced the appellant as above.
10. Learned counsel for the appellant submitted that there is no motive to commit the aforesaid crime, prosecution has not adduced any independent witness to substantiate prosecution version, there is no enmity between the appellant and the injured Jitendra Shandilya. Evidence of the prosecution witnesses is unworthy of credence. It is a case of simple injury. Further submitted that offence under Section 326Ka I.P.C. is not made out against the appellant. There are no criminal antecedents of the appellant, therefore, appellant should be acquitted of the charges leveled against him.
11. Per contra, learned A.G.A. opposed the above submissions put forward by learned counsel for the appellant and contended that the evidence of witnesses of fact is reliable and trustworthy. There is no contradiction between ocular testimony and medical evidence. There is no motive of false implication. The prosecution has proved its case beyond reasonable doubt against the appellant. There is no merit in the appeal and hence, it should be dismissed.
12. PW1 Anil Kumar Sharma is S.D.O. of the Electricity Office situated at 33/11KV, Vidyut Upkhand, Sector-39 Noida, Gautam Budh Nagar. He has supported the prosecution case and has proved the First Information Report Ex. Ka-1. In the cross-examination at page no. 21 of the paper book, this witness has specifically stated that the appellant Sunil Prajapati committed marpit with injured Jitendra Shandilya before him in his office. He saved the injured Jitendra Shandilya from the clutches of the appellant Sunil Prajapati, and he did not sustain injury in the alleged incident. The appellant Sunil Prajapati committed marpit in the cabin and on the ground also. At page no. 19 of the paper book, this witness has deposed that the appellant Sunil Prajapati beaten the injured Jitendra by brick and iron rod.
Learned counsel for the appellant drew the attention of this Court of some inconsistencies in the statement of PW1 Anil Kumar Sharma, which are of trivial nature. The alleged incident is said to have taken place in the office of this witness at 11:00AM in broad day light, during office hours. Remaining present in the office during office hours is quite natural.
In view of the above, it is held that this witness was present in the office at the time of alleged incident, he witnessed the incident through his own eyes. The evidence of PW1 is probable and reliable.
13. PW2 Injured Jitendra Shandilya is the injured witness. He sustained injuries in this case. He has stated in his examination-in-chief at page no. 26 of the paper book that the appellant poured acid over his body and thereafter beaten him by bricks and iron rod. In the alleged incident, he sustained injuries over his head and in his eyes. Thereafter, threatening to kill this witness, appellant ran away from there. At page no. 28 of the paper book in his cross-examination this witness has stated that it is true that there was no enmity between him and appellant. On the day of alleged incident also no altercation took place between him and appellant. This witness is the Government servant. He was present in his office at the time of this incident, appellant came there, quarreled with him and beaten him and poured acid over his body. Remaining present in the office during office hours is quite natural. The evidence of PW2 credible and trustworthy.
14. PW3 J.E. Anil Kumar is an employee of the office where the incident took place. In the examination-in-chief at page no. 29 of the paper book, this witness supporting the prosecution case has stated that appellant poured acid over Jitendra Shandilya due to which he started crying, thereafter the appellant beaten him by bricks and iron rod. In the incident, the injured Jitendra Shandilya sustained injuries over his head and in his eyes. This witness has further deposed that when he endeavored to save the injured, appellant Sunil Prajapati beaten him also by kicks and fists. In the cross-examination at page no. 30 of the paper book, this witness has stated that incident took place in the office at 11:00 hours. In cross-examination also nothing prejudicial to prosecution case could be extracted by the defence. Like other two witnesses, remaining present during office hours in the office is natural conduct of this witness. The evidence of PW3 is reliable and worthy of credence.
15. PW4 Dr. Amit Saxena has proved the medical report Ex. Ka-2 of the injured Jitendra Shandilya. This witness found following injuries on the person of the injured:
(1) Lacerated wound on occipital region of approx 7cm X 0.5cm X 0.5cm;
(2) complaint of burn sensation in eyes and upper part of body;
(3) Lacerated wound on head of approx 1cm X 0.5cm X 0.05cm.
This witness has deposed that he kept the injured under observation. Learned counsel for the defence cross-examined this witness extensively, but there is no major contradiction in the evidence of this witness.
16. PW5 Dr. Sarjeet Singh Guglani prepared the discharge card and proved the same as Ex. K-3. He has also prepared supplementary report Ex. Ka-9. He has specifically stated in his evidence at page no. 36 of the paper book that due to acid both eyes were injured and there was injury on his head also. Due to acid there was burn over face, stomach and legs. There were sufficient burn in the red side of the cornea. All the injuries were of grievous nature. The eyes of the injured can be saved owing to timely treatment but injuries of the eyes were grievous in nature.
17. Prosecution case is that appellant Sunil Prajapati came to the office of injured at 11:00AM on 20.09.2014 and poured inflammable substance over his body, beaten him by brick and iron rod several times. In the alleged incident injured Jitendra Shandilya sustained grievous injuries. His head was lacerated at several places. Appellant committed marpit with other employees of the office. Injured was taken to hospital for treatment. PW4 Dr. Amit Saxena & PW5 Dr. Sarjeet Singh Guglani corroborated the evidence of injured and eye witnesses. There was acid injury in the eyes and body of the injured. There was lacerated wound over the head of the injured which can be caused by hard and blunt object like iron rod and bricks. Thus, there is no contradiction between the medical and oral evidence. Evidence of injured is corroborated by the evidence of eye witnesses and medical evidence.
18. Learned counsel for the appellant submitted that the appellant has no motive to cause injuries to the injured Jitendra Shandilya so case of the prosecution is doubtful.
I do not agree with the above contention of the learned counsel for the appellant because it is settled principal of law that to establish an offence by an accused motive is not required to be proved when case is based on eye witness account.
In Thaman Kumar v. State of Union Territory of Chandigarh 2003 (3) SCR 1190, the Hon'ble Apex Court has held as follows:
"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. In State of Himachal Pradesh v. Jeet Singh, [1999] 4 SCC 370 it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unreveal the full dimension of the mental disposition of an offender towards the person whom he offended. In Nathuni Yadav and Ors. v. State of Bihar and Anr:, [1998] 9 SCC 238 it was held that motive for doing a criminal act is generally a difficult area of prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused."
Following other authorities of the Hon'ble Apex Court may be also be referred on the above point.
Saddik v. State of Gujarat, (2016) 10 SCC 663; Nagaraj v. State, (2015) 4 SCC 739; Sanaullah Khan v. State of Bihar, 2013 (81) ACC 302 (SC); Subal Ghorai v. State of W.B., (2013) 4 SCC 607; Deepak Verma v. State of HP, 2012 (76) ACC 794(SC).
The argument of learned counsel for the appellant that prosecution has not proved the motive, hence, prosecution case is doubtful, is accordingly rejected.
19. Learned counsel for the appellant submitted that prosecution has not produced any independent witness in support of its case, hence, prosecution case is doubtful, I am unable to agree with the above contention of the learned counsel for the appellant. Non examination of the independent witness is not a ground to doubt the prosecution case.
The Hon'ble Apex Court has held that the prosecution case cannot be doubted on the ground of non examination of independent witnesses.
In Sadhu Saran Singh v. State of U.P. & Ors. (2016) 4 SCC 357, the Hon'ble Apex Court has held as follows:
"As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy".
Following authorities of the Hon'ble Apex Court may be also be referred on the above point: Mukesh v. State for NCT of Delhi & Ors. AIR 2017 SC 2161, Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537, Babu Ram v. State of U.P. 2002 (2) JIC 649 (SC).
20. Learned counsel for the appellant further submitted that learned trial court has wrongly convicted the appellant under Section 326 A IPC. He submitted that in this case, there is no grievous injury so appellant could not have been convicted under Section 326A I.P.C. He placed reliance on the judgment and order passed by Hon'ble Apex Court in Maqbool v. State of U.P. and another AIR 2018 SC 5101, relevant para of which is quoted hereinbelow:
16. As we have already discussed above, it is not the percentage or gravity of injury, which makes the difference. Be it simple or grievous, if the injury falls under the specified types under Section 326A on account of use of acid, the offence under Section 326A is attracted. Section 326B could be attracted in case the requirements specified are met on an attempted acid attack. Therefore, both the High Court of Rajasthan in Laddu Ram (supra) and High Court of Madras in M. Siluvai Murugan @ Murugan (supra)do not lay down the correct position of law and they are overruled.
I have gone through the above paragraph. From the judgment cited by learned counsel for the appellant, it is clear that it is not the percentage or gravity of injury which makes the difference, be it simple or grievous, if the injury falls under the specified types under Section 326A on account of use of acid, the offence 326A I.P.C. is attracted. Section 326B I.P.C. can be attracted in a case the requirements specified are met on an attempted acid attack. Now it would be useful to refer the provisions of Section 326A of I.P.C. which is quoted hereinbelow:
"326. Voluntarily causing grievous hurt by use of acid, etc.--Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid1 on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim."
From the perusal of the aforesaid provision of Section 326A I.P.C., it is clear that if a person causes burns by throwing acid, the offence is covered under Section 326A I.P.C. So far as the facts of the present case are concerned, PW2 injured Jitendra Shandilya has specifically stated in his examination-in-chief at page no. 26 of the paper book that appellant poured acid over the body of injured Jitendra Shandilya and beaten him by bricks and iron rod. In the incident, he sutained injuries over his head, due to acid right eye of this witness was injured. PW5 Dr. Sarjeet Singh Guglani has stated in his examination in chief at page no. 36 of the paper book that there was acid burn over the face, stomach and legs of the injured. The right eye cornea was also burnt. As per the supplementary report, the injury of the injured was grievous in nature. Thus, from the evidence of PW2 Jitendra Shandilya, PW5 Dr. Sarjeet Singh Guglani offence under Section 326A I.P.C. is clearly established.
21. Learned counsel for the appellant further submitted that there was no enmity between the appellant and the injured. As there was no enmity between the appellant and injured, so possibility of false implication is also ruled out.
22. Learned counsel for the appellant lastly submitted that appellant is in jail since 21.09.2014 so lenient view should be taken in the matter.
I am unable to agree with the above contention of the learned counsel for the appellant because from the evidence, it is established that the appellant forcibly entered into the office of complainant and beaten Jitendra Shandilya and poured acid over his body without any reason, the appellant committed marpit with other employees of the office. It was a government office where the alleged incident took place, therefore, the appellant also created obstruction in discharging the duties by the government employees.
23. Upshot of the above discussion is that prosecution has established charges under Sections Section 326Ka, 324, 323, 353, 332 & 308 of I.P.C., against the appellant beyond reasonable doubt. Appeal lacks merit and deserves to be dismissed.
24. Accordingly, this appeal is dismissed.
25. Copy of this judgment be certified to the court below for compliance. Lower court record be transmitted to the District Court, concerned.
Order Date :- 12.8.2021 VPS