Delhi District Court
State vs Anil@ Monu on 18 September, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08, WEST
DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-000247-2014
SC No.56135/2016
FIR No. 294/2013
PS Punjabi Bagh
U/s 326-A/34 IPC
In the matter of:
State
Versus
1. Anil @ Monu
S/o Sadan Lal
R/o D-160, Raghubir Nagar,
25 Yards, New Delhi.
2. Johny
S/o late Sh. Baldev
R/o H. No. 224, Raghubir Nagar,
West, Delhi.
3. Sanjeev Kumar @ Sonu
S/o Sadan Lal
R/o D-160, Raghubir Nagar,
West Delhi.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 1/45
4. Ajay @ Sanoj Kumar
S/o late Sh. Ram Prasad
R/o 19A, DDA Flats,
Shivaji Enclave, New Delhi.
..........Accused persons
Date of Institution of case : 12-02-2015
Date of reserving Judgment : 13-08-2024
Date of pronouncement of judgment: 18-09-2024
Appearance:
For the State :Mr. Himanshu Garg, Ld. Additional
Public Prosecutor.
For all accused persons : Mr. Ateeq Ahmed, Ld. Counsel.
JUDGMENT
1. The accused persons namely Anil @ Monu, Johny, Sanjeev Kumar @ Sonu and Ajay @ Sanoj Kumar faced a trial for the offences u/s 326A/34 IPC upon a chargesheet filed against them by SHO PS Punjabi Bagh.
The case of the prosecution:
2. The facts of the prosecution case are that on receipt of an information about the alleged offence in this case, SI Sandeep Kumar, on 14.07.2013 reached at SGM hospital, Mangol Puri. In the hospital, he found complainant Suresh Yadav admitted. Complainant Suresh Yadav examined as PW-3, got recorded his statement Ex. PW-3/A to the effect that on 14.07.2013, at about State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 2/45 6.30 p.m, she was going to Jawala Heri market, Paschim Vihar in a rickshaw. She alighted from the rickshaw at road no. 29 and she was afoot to the market. At that time two scooties of grey and white colour came there. Four boys namely Sanjeev @ Sonu, his brother Monu, their Jija Johny and their companion Sanoj were on the scooty. One scooty was being driven by Monu and Johny was the pillion rider. Other scooty was being driven by Sanoj and Sanjeev @ Sonu was the pillion rider. She recognized all of them as they were residents of Shiv Properties, Shivaji Enclave Extension, Khyala, which was near to her former residence. They stopped her. Johny and Sanjeev had half bottles (addha) of glass. Accused Monu and Sanoj simultaneously told them to throw the acid on her and accordingly, Johny and Sanoj threw acid on her from the half glass bottle ( addha )held by them. She suffered burn injuries on her hands, back and hips. When she cried out of pain, they all saying bad words and threatening to her, ran from there on their scooties.
3. On her statement, PW-12 SI Sunil Kumar prepared rukka Ex.PW-12/A, and sent to police station through Ct. Ajay for registration of the FIR. Accordingly, FIR Ex.PW-1/B was registered. Investigation was undertaken. The site plan was prepared. The witnesses were examined. The burnt clothes of the complainant were taken into possession. The accused persons were arrested. The scooties used in the commission of the offence were also seized. After the completion of the investigation, the chargesheet was filed against the accused persons for the offeneces u/s 326A/34 IPC submitting that the FSL result would State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 3/45 be filed by way of supplementary chargesheet. During the trial on 09.09.2015, the FSL result was filed on record.
4. The Ld. Magistrate committed the case to the Court of Sessions after compliance of the relevant provisions.
The charge against the accused persons :-
5. The accused persons namely Anil @ Monu, Johny, Sanjeev Kumar @ Sonu and Ajay @ Sanoj did not plead guilty to the charge framed against them for the offence u/s 326A/34 IPC.
The evidence by prosecution:
6. To prove the afore-mentioned charge against the accused persons, the prosecution got examined 13 witnesses in all. For the sake of convenience, a brief description of the testimonies of all the prosecution witnesses in tabular form is as under: -
(Oral evidence):
PW-1 ASI Ghisa He recorded FIR in the present case on the Ram basis of rukka received from IO SI Kuldeep Singh and proved the same in the court. PW-2 Ct. Ajay He joined the investigation with the IO and deposed about the same in the court.
PW-3 Smt. She deposed about the incident of acid attack Suresh Yadav happened with her on 14.07.2013. (victim/ injured) PW-4 Dr. Manoj He proved the MLC no. 13014 dated Dhingra, SGMH 14.07.2013 of injured Smt. Suresh Yadav. PW-5 HC He joined the investigation with the IO and Narender Kumar deposed about the same in the court.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 4/45 PW-6 Ct. Rajesh On the instructions of IO, he deposited the Kumar Exhibits pertaining to the present case in the FSL.
PW-7 Ct. Shashi He joined the investigation with the IO and deposed about the same in the court.
PW-8 HC Sohan Being the MHC(M) he proved the certain Pal entries in respect of deposition of case
properties in the Malkhana on relevant dates. PW-9 Dr. P.C He proved MLC no. 13014 dated 14.07.2013 Prabhakar, of injured on behalf of Dr. Brijesh Singh. SGMH PW-10 Ct. Lalit He proved DD no. 48 PP dated 14.07.2013 regarding admission of injured in the hospital. PW-11 Dr. Nishi He proved MLC no. 13014 dated 14.07.2013 Gupta , SGMH of injured on behalf of Dr. Nitin Rastogi. PW-12 Inspector The Investigating Officer, who deposed about Kuldeep the investigation conducted by him in the case. PW-13 Dr. Kanak She proved FSL report prepared by her in the Lata Verma present case.
(Assistant Director (Chemistry), FSL (Documentary evidence):
Ex.PW-1/A Endorsement of ASI Ghisa Ram on the rukka Ex. PW-1/B Computerized copy of FIR No. 294/13 PS Punjabi Bagh Ex.PW-2/A Seizure memo of Acid burnt clothes of victim/injured.
Ex.PW-3/A Statement of injured / victim Smt. Suresh
Yadav
Ex.PW-3/B Site plan
Ex.PW-4/A Opinion of Dr. Manoj Dhingra on the MLC
Ex. PW-4/A
Ex.PW-5/A Arrest memo of accused Sanjeev
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 5/45 Ex.PW-5/B Personal search memo of accused Sanjeev Ex.PW-5/C Disclosure statement of accused Sanjeev Ex.PW-5/D Pointing out memo of place of occurrence by accused Sanjeev.
Ex. PW-5/D Arrest memo of accused Ajay @ Sanoj.
Ex. PW-5/E Personal search memo of accused Ajay @
Sanoj
Ex. PW-5/F Disclosure statement of accused Ajay@ Sanoj
Ex.PW-5/G Arrest memo of accused Johny
Ex. PW-5/H Personal search memo of accused Johny
Ex. PW-5/J Disclosure statement of accused Johny
Ex. PW-5/K Seizure memo of scooty bearing no. DL13SL
4186
Ex. PW-5/P1 to Photographs of scooty bearing no. DL13SL
Ex. PW-5/P2 4186
Ex. PW-7/A Arrest memo of accused Anil @ Monu
Ex. PW-7/B Personal search memo of accused Anil @
Monu
Ex. PW-7/C Disclosure statement of accused Anil @ Monu
Ex. PW-8/A RC no. 117/21/13
Ex. PW-8/B Entry at sl. no. 3494 in register no. 19
Ex. PW-8/C Entry at sl. no. 3824 in register no. 19
Ex. PW-9/A MLC no. 13014 of Suresh Yadav
Ex. PW-10/A Copy of DD No. 48 PP dated 14.07.2013
Ex. PW-12/A Rukka
Ex. PW-12/B Pointing out memo at the instance of accused
Anil @ Monu
Ex. PW-12/C Pointing out memo at the instance of accused
Jhony
Ex.PW-13/A FSL report no. 2013/C-8279
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 6/45
7. At this stage, it would be appropriate to discuss the testimonies of the important witnesses for the prosecution.
8. PW-3 Smt. Suresh Yadav is the complainant / victim / sole eye witness of the incident. She is the star witness for the prosecution. She deposed and corroborated her version in complaint Ex.PW-3/A. She narrated the manner of the incident and the involvement of the accused in the same. However, in addition to her version in the complaint, she further deposed that after the incident, one Sardarji and his wife removed her in their Maruti Van near to a PCR at little distance. She further deposed that the reason for the acid attack on her was that one or two months prior to this incident, somebody poured acid on the sister of accused Sonu and some drops of acid had fallen on her. At that time, she stated that if somebody had thrown acid then only 3-4 drops would not have fallen only on her hands. Hearing the same, Smt. Anita, mother of accused Sonu had told that "jab tere muh pe padega tab pata chalega". She also correctly identified the accused persons in the court.
In her cross-examination, she stated that she did not receive any telephonic call from her son Vikas between the time she left her house and the incident. She was confronted with statement Ex.PW-3/A wherein it was not recorded that one Sardarji and his wife removed her in their van near to a PCR. She was also confronted with statement that she told the police that mother of accused Sonu told her that "jab tere muh pe padega tab pata chalega". She did not make any telephonic call to 100 number despite she had the mobile phone with her. She State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 7/45 admitted that one Amit s/o Sh. Jeet Singh had accompanied her to the court on the day of her examination. She also admitted that Amit is the brother-in-law (Jija) of accused Sonu and Monu. She admitted that Amit and Kamini, his wife and sister of accused Sonu and Monu, had matrimonial disputes between them. She further stated that one Leelaram was known to her. Her sons were Sonu, Monu and Pawan. She also admitted that one Veer Singh is the brother of Leelaram. She further admitted that Leelaram, Veer Singh, Sonu and Monu were in custody in a case lodged by Kamini.
9. She was again recalled for cross-examination on 24.11.2016. She stated that site plan Ex. PW-3/B was prepared in her presence at about 6.30 p.m. She admitted that in the photographs collectively marked as Mark PW-3/DA show her image and she was standing at the house of Leelaram. She stated that she came to know about the fact Leelaram had thrown acid on Kamini and thus, a gathering was present at his house and she was also there. She further admitted that after 14.07.2013, she had visited Leelaram in the jail. She also admitted that she had moved an application for cancellation of bail of the accused persons. She denied that in order to pressurize Kamini to compromise her case with Leelaram, she in connivance with them had lodged the present case. On 24.11.2016, her testimony could not be completed as it was deferred as the accused wanted to show her some photographs.
10. Vide order dated 12.09.2018, the further opportunity to cross-examine PW-3 was closed. However, on 08.02.2019, on an State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 8/45 application of accused u/s 311 Cr.P.C, further opportunity was granted to accused persons subject to cost of Rs. 4000/-. The said order was challenged by the complainant in the Hon'ble High Court and the Hon'ble High Court vide order dated 04.07.2019 in W.P (CRL) no. 1387/2019 set aside the order dated 08.02.2019. Thus, the order dated 12.09.2018 closing the opportunity of the accused to cross-examine PW-3, became final. Thus, it is clear that the testimony of PW-3 is complete.
11. PW-4 Dr. Manoj Dhingra had given the opinion on the MLC of PW-3 Smt. Suresh Yadav. He deposed that he had not seen any mark over face/neck and head. He opined the injuries to be 'simple'. He proved his opinion as Ex.PW-4/A. He was not cross-examined by the accused.
12. PW-6 Ct. Rajesh Kumar deposed that on 29.10.2013, he collected the Exhibits of this case from the MHC(M) vide RC no. 117/21/13 and he deposited the same at the FSL in intact condition.
13. PW-8 HC Sohan Pal was the MHC(M) who deposed that on 14.07.2013, SI Kuldeep Singh deposited on sealed pullanda sealed with the seal of 'KS' stating to be the burnt clothes. He sent the same to the FSL through Ct. Rajesh on 29.10.2013. He also deposed about the deposit of Activa Scooty and proved the relevant documents thereto.
14. PW-11 is Dr. Nishi Gupta who deposed on behalf of Dr. Nitin Rastogi. She deposed that as per the MLC, Dr. Rastogi observed a superficial burnt present near patchy area over right State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 9/45 forearm, right side of lower and upper back and on right hip of the patient Ms. Suresh Yadav.
15. PW-12 is IO Inspector Kuldeep Singh. He deposed about the investigation conducted by him and proved the relevant documents prepared by him. He deposed that after he prepared the rukka in the hospital, the complainant PW-3 Suresh Yadav was discharged from the hospital and she along with her reached at the spot where he prepared the site plan. He also deposed that when he was present at the spot along with the complainant, her relatives reached at the spot and the complainant produced the acid burnt clothes i.e. black colour kurta having red and brown colour design (Kadai) and one multi coloured stripped salwar worn by her at the time of incident.
In his cross-examination, he stated that he had reached the spot along with the complainant at about 9.45 p.m and at about 10 p.m, few of her relatives including her son also reached there. He further stated that after reaching the spot at about 9.45 p.m, he remained there for about two hours. He could not find any acid mark on the road as well as the footpath near the road of incident. He further stated that complainant never told him that she was lifted from the spot to the PCR by a Sikh family in their car. He admitted that he did not record the statement of the aforesaid PCR van officials. He voluntarily stated that the complainant could not state anything to the PCR officials due to pain and PCR simply got admitted the complainant in the hospital and therefore, he did not record the statement of the PCR officials. Nor did he note down the name, number and designation of the State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 10/45 PCR officials. He further stated that he did not find any acid mark on the scooty seized by him. He did not verify the fact that earlier the complainant and the accused were the neighbours despite the complainant telling him. He further stated that he attended the hearing of anticipatory bail and regular bail and he filed the reply thereto as well. He further stated that the accused as well as the complainant had filed complaints and representations to several higher authorities and the same were also received in the police station. He admitted that accused Sanoj claimed to be at the office of Sh. Mir Akhtar Hussain, his counsel at Green Park on the date and time of the incident along with his brother Dharmender and his family members in relation to one case. Voluntarily he stated that he checked the CCTV footage of the advocate's office but he found a variation of half an hour and he did not seize the CCTV footage.
He further stated that the clothes of the complainant were not seized by the doctor and they were seized by him at the spot. When the complainant came at the spot with him, she was wearing the same clothes and she gave them to him on his request by changing in a house situated near the spot of incident. He denied the suggestion that he did not carry out a fair investigation.
16. PW-13 Dr. Kanak Lata Verma, Assistant Director (Chemistry, FSL) proved her report Ex.PW-13/A. She deposed that on the FSL examination, she found that Ex.1A, Ex.1B and Ex.PW1C contained mineral acid: Sulfuric Acid. In the cross- examination, she admitted that if sulfuric acid falls on ground on State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 11/45 surface or on metal, it would leave stains. However, she stated that she did not conduct any examination to ascertain if the mineral detected in the Exhibits were diluted Sulfuric acid or concentrated Sulfuric Acid as it was not her mandate.
The statement of accused persons u/s 313 Cr.P.C:
17. The statements of the accused u/s 313 Cr.P.C were recorded. The incriminating circumstances appearing in evidence against the accused persons were brought to their notice and their explanations were sought. All accused stated that they were innocent and present case had been registered against them at the behest of Leela Ram and his family as an FIR was lodged against them on the complaint of Kamini, who is sister of accused Anil @ Monu and Sanjeev Kumar @ Sonu. The complainant, in connivance with Leela Ram and his family, in order to pressurize Kamini to change her statement, falsely implicated the accused persons in this case. All accused wished to lead defence evidence.
Defence Evidence:
18. In defence, accused persons got examined six witnesses. The brief description of defence witnesses are as under:-
(Oral evidence):
DW-1 Sh. Jitender The brother in law of accused Sanoj Kumar Kumar who deposed about the fact that on the day of incident i.e. 14.07.2013 he alongwith his mother and accused Sanoj Kumar was present in the office of an State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 12/45 advocate namely Sh. Mir Akhtar Hussain at Green Park.
DW-2 Sh. Ravi Malik Brother in law of accused Sanjeev Kumar who deposed that since on the date of incident i.e. 14.07.2013, it was birthday of his daughter, accused had come to his house and remained there till 11 p.m. DW-3 Sh. Mir Akhtar He deposed that on 14.07.2013, one Jitender alongwith his mother Ganga Hussain Devi and his brother in law namely Sanoj Kumar had come to his office in respect of one murder case bearing FIR No. 136/13 PS Khyala.
DW-4 Sh. Harbans She deposed about the affair of her son Amit with Rakhi, niece of Leelaram.
Kaur DW-5 Ms. Preeti @ She deposed about the fact that in May, 2013 she had seen complainant outside Barkha the house of Leelaram when she alongwith other neighbour went to his house after the acid attack on Kamini, the wife of Amit.
DW-6 Ms. Kamini She is the wife of Amit and deposed regarding the previous FIRs and and acid attack upon her by Leelaram and other accused persons in the said FIR.
Documentary evidence:
Ex.DW-1/A to The photographs showing the presence of Ex.DW-1/F accused, DW2 jitender Kumar and his mother in the office at Green Park of advocate Sh. Mir Akhtar Hussain Ex.DW-2A & Ex. DW- The photographs showing the accused 2/B Sanjeev Kumar attending the birthday of daughter of DW-2 Ravi Malik.
Ex. DW-3/1 Certified copy of bail application no.1317/2013
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 13/45 Mark DW-4/1 Complaint to the Commissioner of Police against Amit by his mother i.e. DW-4 Harbans Kaur.
Mark DX-1 Copy of FIR No. 198 dated 27.05.2013 u/s 354/326B/34 IPC PS Khyala Ex. DW-6/DA Copy of birth certificate Nancy, the daughter of DW-2 Ravi Malik Mark DX-2 Photograph showing the birthday party of Nancy on 14.07.2013 Mark DX-3 Copy of FIR No. 267/13 u/s 498A/406 IPC PS Khyala Mark DX-4 The complaint given to the police by DW-6 Smt. Kamini
19. Let us discuss the testimonies DWs in brief. DW-1 Jitender Kumar is the brother-in-law of accused Sanoj. He deposed about the fact that accused Sanoj, his mother-in-law and he attended a conference with DW-3 Sh. Mir Akhtar Hussain at his Green Park Office on 14.07.2013. He was cross-examined by the Ld. Prosecutor.
20. DW-2 is Sh. Ravi Malik who is the brother-in-law (Saala) of accused Sanjeev Kumar. He deposed that accused Sanjeev on the date of incident was present at his house from 4 p.m to 11 p.m. He was cross-examined by the Ld. Prosecutor.
21. DW-3 Sh. Mir Akhtar Hussain is an advocate who deposed that on the date of incident, DW-1, his mother Ganga Devi and accused Sanoj had attended a conference in respect of a murder case in FIR No. 136/13 PS Khyala in which one Dharmender alogn with accused Sanoj were accused. He deposed that they all remained in his office from 4.15 p.m to 5.36 p.m. He State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 14/45 filed the photographs showing their presence in his office from CCTV cameras installed at his office. He further deposed that he filed the photographs along with an anticipatory bail application in the Hon'ble High Court and proved the same as Ex.DW-3/1. He was cross-examined by the Ld. Prosecutor.
22. DW-4 Smt. Harbans Kaur is the mother of Amit, husband of Kamini, the sister of accused Sonu and Monu. She deposed that her son had affair with Rakhi, niece of one Leelaram due to which there were quarrels between her son and Kamini. In the year 2013, she had seen complainant Suresh Yadav having a bottle with yellow liquid and when she asked her son about the same, her son did not answer. She was cross-examined by the Ld. Prosecutor.
23. DW-5 Smt. Preeti is the sister of Kamini. She deposed about the incident of throwing acid on Kamini by Leelaram and other in May, 2013 and further that when they reached at the house of Leelaram, complainant Suresh Yadav did not allow them to enter into his house. She was cross-examined by the Ld. Prosecutor.
24. DW-6 Ms. Kamini is the wife of sister of accused Sonu and Monu. She deposed about her turbulent relationship with her husband as he had an extra marital affair with Rakhi and also about acid attack upon her by Leelaram and other persons. She was cross-examined by the Ld. Prosecutor.
25. The Ld. Prosecutor and the Ld. Counsel for the accused persons advanced the final arguments.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 15/45 Submissions by Ld. Prosecutor:
26. Ld. Prosecutor duly assisted by the Ld. Counsel for the complainant, while relying upon the oral and documentary evidence on the record argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt. He argued that PW-3 complainant Smt. Suresh Yadav has corroborated the initial version given by her to the police and she withstood the test of cross-examination. Ld. Prosecutor argued that the testimony of the complainant PW-3 is of sterling nature and is reliable. He further argued that the FSL report Ex. PW- 13/A as proved by PW-13 Dr. Kanak Lata Verma, clearly has shown the presence of sulfuric acid on the clothes of the complainant PW-3, which she was wearing at the time of incident. He further argued that the MLC of the victim Ex. PW- 9/A, which was prepared instantaneously shows the burn injuries on her person. He concluded that the prosecution has proved the case against the accused beyond reasonable doubt.
Submissions by Ld. Counsel for accused persons :
27. On the other hand, Ld. counsel for the accused persons argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He contended that there was no motive on the part of the accused persons to throw acid upon PW-3 and she has filed the present FIR at the behest of Leelaram. He further argued that there is no independent eye witness of the incident despite the spot being a public place, which creates a doubt in the prosecution case. He further argued State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 16/45 that there are several material contradictions and infirmities in the prosecution case which cast a serious doubt in it and, accordingly, the accused persons cannot be convicted on the oral and documentary evidence led by the prosecution. He also argued that the accused persons have led sufficient defence evidence which has demolished the prosecution case. Lastly, he concluded that prosecution has miserably failed to prove the case against the accused persons beyond reasonable doubt.
28. I have heard the arguments advanced by the parties and perused the record carefully.
Analysis
29. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
30. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 17/45 must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions."
Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
31. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent.
Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 :
1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 18/45 trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
32. Let me deal with the respective submissions of the Ld. Prosecutor and the Ld. Counsel for accused.
Submissions of Ld. Counsel for accused persons
33. I shall deal the contention of the accused persons first. The first contention of the Ld. Counsel for the accused is that there was no independent public person of the incident and therefore, there is no corroboration to the testimony of PW-3 Smt. Suresh Yadav and thus, on her uncorroborated testimony, finding of conviction cannot be entailed against the accused. What would be the effect the absence of the independent public witnesses has been considered by the Hon'ble Supreme Court in the landmark judgment of Appabhai and Another Vs. State of Gujarat, AIR 1980 SC 696. In para 11 of the said judgment, it was observed here as under:
".................................. It is no doubt true that the prosecution has not been able to produce any State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 19/45 independent witnesses to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not themselves. This kind of apathy of the general public is indeed unfortunate, but is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the independent case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of the truth with due regard to probability,if any, suggested by the accused.............................."
34. The rationale of the aforesaid proposition is that normally, the general public persons are not willing to join the investigation in a criminal case and they think that a crime is a personal dispute between the offender and the victim and thus, they do not come forward to be the witness of the crime. The police investigation is hampered by the said fact and accordingly, the investigation of the police cannot be doubted on this ground alone and the court has to see the broad spectrum of the case as to what is the effect of the absence of the independent public witness. Thus, it is held that the prosecution case cannot be faulted merely no independent public witness has been joined in the investigation. The court has to see the entire facts and circumstances of the case to see the effect of non-joining of the independent public witnesses in the investigation.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 20/45
35. The next point vehemently raised by the Ld. Defence Counsel is that there are material contradictions in the testimony of the prosecution witnesses. But here the question which assumes importance is that what would amount to the material contradictions and what would not. In State of Rajasthan Vs. Kalki (1981)2 SCC 752 the Hon'ble Supreme Court was pleased to held that as under:-
"normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however hones and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
36. The settled position of law in this regard is that when a witness is examined in the court and that too after a fairly long period of time, the memory of the witness fades and he is not expected to remember the vivid details of the occurrence which might have been fresh in his memory after a reasonable period of time. Therefore, some normal discrepancies are bound to happen in his testimony which may relate to the trivial details of the incident. However, if there are discrepancies which are so important and attached to the occurrence that a normal person is not expected to forget the same and they have the lasting image on the memory of the witness, such discrepancies are considered as material discrepancies. I will discuss in the later part of this State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 21/45 judgment whether there are material contradictions in this case or not.
PW-3 being the solitary witness for prosecution:
37. Ld. Counsel has further argued that PW-3 Victim Suresh Yadav who is the solitary witness of the prosecution case and her testimony therefore, cannot be relied upon in order to convict the accused. In this regard, it can be stated that section 134 of The Indian Evidence Act provides that no particular number of the witnesses shall be required to prove any fact. The same is based on the maxim that it is the quality of the evidence and not the quantity which shall be taken into consideration by the Courts. While relying upon the judgment of Vadivelu Thevar V/s State of Madras, AIR 1957 SC 614, the Hon'ble Supreme Court in the judgment of Jagdish Prasad V/s State of M.P., AIR 1994 SC 1251, held that as a general view a Court can and may act on the testimony of a single witness though uncorroborated, provided that the testimony of that single witness is found entirely reliable. In that case, there will be no legal impediment for recording the conviction but if the evidence is open to doubt or suspicion, the Court will require sufficient corroboration. The witnesses were further classified as (i) wholly reliable (ii) wholly unreliable and
(iii) neither wholly reliable nor wholly unreliable. It was observed that in first two categories it is not difficult to come to any conclusion either accepting or rejecting the testimony but it is in the third category of cases only, the Court should look for corroboration in material particulars by reliable testimony either State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 22/45 direct or circumstances. The similar view has been expressed and adopted in Sunil Kumar V/s State (Govt. of NCT of Delhi), 2003 (11) SCC 367, Food Inspector V/s G. Satyanarayana, 2004 (13) SCC 72, Vinay Kumar Singh V/s State of Bihar, 1997 (1) SCC 283.
38. Therefore, from the aforesaid judgments, it is clear that it is not the quantity of the witnesses but it is the quality of the witnesses which assumes importance. Even if the witness is a solitary witness, he still can be a reliable witness if his testimony is found to be truthful. I shall be discussing the testimony of PW- 3 in this regard in the later part of this judgment.
Submissions of Ld. Prosecutor PW-3 Smt. Suresh Yadav, complainant is a sterling witness:
39. Ld. Prosecutor has further argued that though PW-3 Smt. Suresh Yadav is the only eye witness, but her testimony would reveal that her testimony is of 'sterling nature' and thus, the same can be relied upon to bring home the guilt of the accused. What is the effect of testimony of a 'sterling witness' has come into consideration of the Hon'ble Apex Court in several judgments. In the judgment of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Hon'ble Supreme Court discussed as to how the testimony of sterling witness should be considered. The relevant part is reproduced as under: -
In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 23/45 for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
(emphasis supplied)
40. Thus, to fall in the category of 'sterling witness', a witness should be truthful and consistent from the point when the witness has made the initial statement and when he deposed before the State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 24/45 court. The witness must pass the test of cross-examination of any length and should not give any room for any doubt regarding the previous involvements and sequence thereto. The testimony of witness should be of such a nature that it can be compared to the witnesses in a case of circumstantial evidence where there is no missing link in the chain of circumstances. The oral and documentary evidence must be in consonance with the testimony of the witnesses. Thereafter only the testimony of a witness can be called as of sterling quality.
41. In view of the aforesaid propositions of law, let us discuss the initial version of the complainant and her deposition in the court and investigation including the documents prepared by the IO in this regard to determine whether the testimony of PW3 does inspire any confidence or not. From the complaint Ex.PW-3/A, it is amply clear that complainant Smt. Suresh Yadav did not mention anything about the fact that after the incident, she was taken near to the PCR by a Sardarji along with his family in his car. The initial complaint Ex.PW-3/A is silent in this regard. She was duly confronted by the accused persons in the cross-
examination. It is well settled principle of law that a witness not only can be contradicted with a previous statement made by him in writing, but also can be contradicted with the material omission of a fact, which he did not make in the previous statement. The fact that the complainant was taken from the spot to the PCR was so important that it had to be termed as 'material omission'. Thus, the credit of the witness gets impeached when a material omission is found between his previous statement in State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 25/45 writing or deposition made by the witness in the court. The truthfulness of this witness on this aspect also gets impeached by the deposition of the IO. PW-12 Inspector Kuldeep Singh has deposed that the complainant did not tell him about the fact that she was carried by a Sardarji in his car to a nearby PCR. Therefore, the version of PW-3, that from the spot, she was taken to near the PCR by a 'Sardarji' in his car becomes highly doubtful.
42. Similarly, a material improvement has been made by the complainant PW-3 regarding the motive of the accused persons to attack her with the acid. A careful perusal of her complaint Ex.PW-3/A would show that she did not mention at all the motive of the accused persons to attack her with the acid. She merely stated in complaint Ex. PW-3/A that all the accused persons were earlier residing at Janta Flat, Shivaji Extension, Khyala where she used to reside. Nowhere she had mentioned about the motive of the accused persons. However, in her cross-examination she stated that the accused persons attacked her as earlier one Leelaram along with other persons had thrown acid on one lady namely Kamini who is the sister of accused Sonu and Monu and after the acid attack on Kamini when people gathered at the house of Leelaram, she stated that Kamini was raising false allegations because if somebody wanted to throw acid upon her, he would not have dropped few drops of acid upon which mother of accused Sonu had told that "jab tere muh pe padega tab pata chalega". She was duly confronted with her previous statements. The same is also an important omission. Thus, the complainant State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 26/45 had remained silent regarding the motive in her complaint Ex. PW-3/A and for the very first time, she came up with this explanation in her deposition. Accordingly, the story of the complainant in this regard is shrouded with doubt and not free from embellishments.
43. Moreover, the initial version of the complainant is that the said Sardarji had dropped her from the spot to nearby PCR van and thereafter the PCR van had taken her to the hospital. Whether there was any PCR van which had actually taken her to the hospital is the next question which is to be considered now. The complainant in her deposition as PW-3 has deposed that at the time of incident, she was using a mobile phone, but she did not make any call to the police control Room. Even if for the sake of arguments, it is assumed that the complainant did not make any call to the PCR herself but it still bemuses the court as to why the PCR officials did not make any call to the police control room. The officials in the PCR van are well-trained and it is a known fact even to an ordinary man that as soon as an offence is committed, the immediate information to the PCR gives a chance to the police to look for the offenders and arrest them by cordoning off the area or areas where the presence of accused might be found after the offence. Furthermore, the IO in his deposition stated that the PCR van only got the complainant admitted in the hospital and therefore, he did not record the statement of any PCR official. This is a serious lapse in the investigation carried out by the IO as the statement of the PCR officials would have completed the link in the chain of State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 27/45 circumstances as required in a case of circumstantial evidence which is akin to the testimony of a 'Sterling Witness. For the reasons best known to the IO, he did not do so.
44. PW-13 Dr. Kanak Lata Verma from FSL proved the FSL report Ex. PW-13/A wherein it was found that the clothes worn by the complainant PW-3 had sulfuric acid. In her cross- examination, she stated that if sulfuric acid falls on the floor or metal, it would leave stains. Therefore, if the IO had examined the PCR van, it would have definitely had stains caused by the sulfuric acid in the PCR van as at that time the complainant was wearing the same clothes and some stains were bound to occur in the PCR van even though not to a large extent. The said fact also would have gone to complete the link in the chain of circumstances in the prosecution case.
45. Further, the MLC Ex.PW-9/A would show that she was brought in the hospital by one HC Mahavir No. 1143/West, but the identity of HC Mahavir and as to how he brought the complainant in the hospital, had not been explained by the IO as the IO has not examined him in this case. DD No. 48PP dated 14.07.2013 Ex.PW-10/A reveals that Ct. Vijay relayed the information to the police station that one Suresh Yadav was brought in the hospital in injured condition by HC Mahavir No. 1143/West, In-charge, QRT-75, Punjabi Bagh. Therefore, it is clear that it was HC Mahavir, who was in-charge of Quick Response Team, had brought the complainant to the hospital. Therefore, the identity of the person, who brought the complainant to the hospital has been established on record. Had State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 28/45 this witness been examined by the IO and had he deposed in the court, he would have given credence and corroborated the version of the complainant that one Sardarji had dropped her to a nearby PCR van, which took her to the hospital. By not examining HC Mahavir as a witness in the court, the prosecution case has suffered a serious lapse and at the cost of repetition, it can be said that he would have provided ample credibility to the series of event in the prosecution case and in the absence of the same the prosecution case thus, suffers from material infirmities.
46. Furthermore, it has come on record that two accused persons namely Sonu and Monu had a sister namely Ms. Kamini. She is married to one Amit. Amit is alleged to have a relationship with one girl namely Rakhi, who is niece of one Leelaram. Earlier to the offence in the present case, an FIR was registered against Leelaram and his accomplices at the instance of Kamini, who raised allegations that Leelaram and his accomplices had thrown acid upon her. PW-3 Smt. Suresh Yadav had also admitted that on the day of incident in the present case, Leelaram was in Tihar Jail and she had gone to meet him in the jail. The complainant further admitted that in the photographs Mark PW-3/DA (colly), she is seen and she further stated that after the alleged acid attack upon Kamini by Leelaram etc. a large gathering had gathered at the house of Leelaram and she was also there. Thus, it is clear that PW-3 complainant Ms. Suresh Yadav was aware of the inimical relations between the family of accused Sonu and Monu and Leelaram and an incident wherein Leelaram was involved in an acid attack case on Ms. Kamini. However, when she filed the State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 29/45 complaint Ex.PW-3/A, she did not utter a single word regarding the previous enmity between these two families. Thus, the conduct of PW-3 by not disclosing the hostile relations of the parties, creates a reasonable doubt in her trustworthiness and she cannot be termed as "Truthful Witness".
47. Another aspect of the case is that if we consider the testimony of PW-3 Smt. Suresh Yadav in view of the medical evidence on record, her testimony appears to be not believable. The MLC Ex.PW-9/A was prepared by Dr. Brijesh Singh. PW-9 Dr. P.C Prabhakar has deposed on behalf of Dr. Brijesh Singh. PW-11 Dr. Nishi Gupta has proved the handwriting of Dr. Nitin Rastogi of Surgery Department. Dr. Brijesh Singh on medical examination of the victim noted that there were superficial burns present over right forearm, right side of lower and upper back and on right hip. In the Surgery Department, Dr. Nitin Rastogi also noted superficial burns present on the body of the victim on the aforesaid place where Dr. Brijesh Singh noted the burns as well. Dr. Nitin advised the complainant for review in Surgery OPD after five days or emergency OPD if needed. PW-4 Dr. Manoj Dhingra on 16.09.2013 had given his opinion. He stated that there was no mark seen over the face, neck, head and according to him the nature of injury was 'simple', Thus, from the medical opinion, it is clear that there was no serious injury on the body of the complainant. PW-13 Dr. Kanak Lata Verma who proved the FSL report, deposed that on the clothes of the complainant examined by her in the FSL, were found to have sulfuric acid. It has also come in the testimony of PW-3 Smt. Suresh Yadav that she went State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 30/45 to the hospital in the same clothes and her clothes were not taken by the doctors at the hospital. As per the medical protocol, in a case of acid attack, the first and foremost thing which is required by the doctor is to remove the clothes worn by the victim so that the sulfuric acid does not remain on the body and causes further damage to the tissues. PW-13 Dr. Kanak Lata Verma has also deposed that the sulfuric acid if falls on the ground surface or on metal, it would leave stains. Thus, it is clear that the sulfuric acid is the highly corrosive substance and if falls or thrown upon human body, it is bound to cause immense pain on the body and mind of the victim. There was no plausible reason for Dr. Brijesh Singh and Dr. Nitin discharging the victim in the same clothes which the victim was wearing at the time of her examination by them and thus, taking a chance for more damage to the tissues. If they had thought that the condition of the victim was serious, they definitely would not have allowed the victim to leave the hospital and that too in the same clothes having the residues of the acid. It defies any logic that a well- trained doctor would do so.
48. IO Inspector Kuldeep PW-12 deposed further that the clothes of the victim were handed over to him when one of the relatives of the victim brought fresh clothes and victim had changed her clothes and handed over the burnt clothes to the IO at the spot. The IO has deposed that the clothes were changed by the victim in a house situated near the spot of incident. However, the IO has not examined the owner or occupant of the said house where the victim changed her clothes. The said owner or the State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 31/45 occupant of the said house was an important witness for the prosecution as it was not possible for a woman to change her clothes in an unknown house unless there is a safe place for the same or there is a woman in the house or there is a female police official along-with the victim. The conduct of the victim in this regard is highly unbelievable and the explanation by the IO is also not reliable. Furthermore, the IO has not examined the relative of the victim, who brought the clothes at the spot. The failure of the IO to examine the said relative has also affected the credibility of the prosecution case in this regard.
49. Thus, in view of the aforesaid discussions especially the fact that PW-3 did not mention about the Sardarji who brought her to the PCR, non-examination of PCR officials as well as PCR van, the absence of motive, the fact that there was already an acid attack at the instance of Ms. Kamini, sister of Sonu and Monu, the injury of the complainant being found 'simple', the fact that she was discharged from the hospital on the same day in the same clothes and the fact that she had changed her clothes in a nearby house cumulatively indicate that she has failed to pass the test of the sterling witness. By no stretch of imagination can she be termed as 'sterling witness'. Her initial version and her deposition in the court, if seen as a whole, does not inspire any confidence and thus, cannot be believed.
PW-3 Smt. Suresh Yadav, the victim would not falsely implicate the accused persons:-
50. Ld. Prosecutor also argued that PW3 is the victim and there is no reason as to why she would allow the real culprit to State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 32/45 escape and falsely implicate the innocent persons. Admittedly, there is no witness to the incident except the complainant/ victim PW-3 Smt Suresh Yadav. She is also an injured in this case. The prosecution case rests upon the oral testimony of PW-3. How the oral evidence in a case should be appreciated, has been considered by the Hon'ble Supreme Court in the case of Balu Sudam Khalde & Anr Vs The State of Maharashtra, CA No. 1910/2010 dated 29.03.2023. The relevant observations are reproduced hereasunder:-
APPRECIATION OF ORAL EVIDENCE "25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 33/45 IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 34/45 disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]"
51. In the aforesaid judgment of Balu Sudam Khalde (supra), the Hon'ble Supreme also dealt with the question as to how the testimony of any injured eye witness is to be appreciated. The relevant observations are reproduced here as under:-
"26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 35/45
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
52. The aforesaid observations in the case of Balu Sudam Khalde (supra) enunciate that there is no straight jacket formula to appreciate the ocular evidence. The testimony of the witness must inspire confidence if read as a whole. If the witness is examined at length, some minor discrepancies are bound to occur and minor discrepancies not touching the root of the matter should not be given importance by the court by adopting a hyper- technical approach. It was further laid down that to appreciate the testimony of a victim, eye witness, his presence at the spot should not be doubted and it should be presumed that unless it is established otherwise by evidence, the injured witness would not allow the real culprit to escape and falsely implicate the accused. The court must assess that whether in the circumstance of the case it is possible to believe their presence at the spot and such State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 36/45 situation which make it possible for them to witness the facts deposed by them. Another aspect is that whether there is anything inherently improbable or unreliable in their evidence. The court will have to consider the same from the statement of the witness or from other evidence read in this regard. In case of evasive denial by the accused, the court has to see the evidence of the prosecution. In case of specific plea of the accused inconsistent with the prosecution case, the court should see the nature of such plea or case and the probabilities while appreciating the evidence of prosecution witnesses.
53. Now, let us consider the facts and evidence in the case in view of the aforesaid observations of the Hon'ble Supreme Court in the case of Balu Sudam Khalde (supra). The case of the accused is not of evasive denial rather the accused persons have come up with a specific case that there was a motive on the part of PW-3 because of certain disputes between Ms. Kamini, sister of accused Monu and Sonu and her husband Amit, who had an illicit relationship with one Rakhi, niece of Leelaram. An FIR for acid attack had already been lodged by Ms. Kamini against Leelaram and other persons. In her evidence, PW-3 admitted that she was known to Leelaram and the accused persons as she used to reside in their neighbourhood. She also admitted that after 14.07.2013 i.e. the date of incident in this case, she had met Leelaram in the jail, which shows that Leelaram was in the jail on the date when the offence took place in this case. She also admitted that Amit S/o Sh. Jeet Singh had accompanied her to the court when her further cross-examination took place on State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 37/45 30.05.2016. DW-4 Smt. Harbans Kaur is the wife of Jeet Singh. Therefore, it is clear that it is Amit, husband of Kamini, who accompanied PW-3 in the court. DW-1 Sh. Jitender Kumar and DW-3 Sh. Mir Akhtar Hussain have deposed that accused Sanoj attended a conference with DW-3. IO PW-12 had also admitted that he checked the CCTV footage, but did not seize the footage on the reason that there was a variation of time of half an hour in the same. DW-4 Smt. Harbans Kaur is the mother of Amit. She deposed that her son had affair with Rakhi, niece of Leelaram due to which there had been disputes between him and Kamini. She further deposed that she had filed a complaint against her son Amit Mark DW-4/1 addressed to the Commissioner of Police. DW-6 Kamini deposed about the affair between Rakhi and her husband Amit as well as an FIR no. 198/ 2013 against Leelaram and other persons. Thus, the defence witnesses have deposed regarding the history of enmity between the parties. The other facts which I have already discussed would show that although the complainant PW-3 is the injured and eye witness of the case, but she has the motive to falsely implicate the accused persons in this case.
54. Considering the testimony of PW-3 Smt. Suresh Yadav on the yardstick of her being a 'sterling witness' for the prosecution case as well as her testimony keeping in mind the fact that she was the injured / victim in this case, this court finds that both the grounds, the testimony of PW-3 as 'sterling witness' as well as injured- witness, does not inspire the confidence of the court due to afore-mentioned discussions in the proceeding paragraph.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 38/45 Therefore, this court does not have any reason to believe the testimony of PW-3 Smt. Suresh Yadav.
55. A careful perusal of the material available on record would show that there are serious lapses in the investigation and IO either has not conducted the investigation in a professional manner or has deliberately not brought the true facts before the court. The court has failed to understands that as to why the IO has not called the crime team at the spot. No reason or explanation has been furnished by the IO for the same. The crime team of the police department is equipped with all the necessary basic equipment / apparatus and it has the requisite know-how as to how forensic evidence from the scene of crime is to be collected. In view of the testimony of PW-13, it is clear that sulfuric acid is bound to leave stains when it falls on the ground or in metal. Had the crime team been called at the spot; it definitely would have collected the evidence from the spot. The FSL report would have shown the presence of sulfuric acid on the spot as well. By not calling the crime team at the spot and collecting the evidence from the spot, the IO has left a big gaping hole in the evidence. Thus, a reasonable doubt has occasioned in the story of the prosecution.
56. Another lapse in investigation is that the accused Sanjeev had taken a plea of alibi that at the time of the incident, he was not present at the spot rather he was attending a conference with his advocate DW-3 Sh. Mir Akhtar Hussain at his Green Park office. In the cross-examination, IO admitted that he received the complaint from accused Sanjeev regarding his presence at the State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 39/45 office of his advocate. He stated that he looked the CCTV footage of the office of Sh. Mir Akhtar Hussain, but he found a time variation of about half an hour in the same. He also admitted that he attended the hearing of anticipatory and regular bail applications of all the accused persons and filed replies. DW-3 Sh. Hussain, Advocate has deposed that he filed the photographs and the CCTV footage along with certificate u/s 65 B IEA along with the bail application in the Hon'ble High Court. He proved the certified copy of the bail application as Ex. DW-3/1 (colly) along with the copy of the photographs and the CD dated 14.07.2013 showing the timing of 4 p.m to 5.36 p.m as Annexure P-9.
57. Thus, the IO was well aware about the claim of accused Sanjeev and the fact of his presence at the office of his advocate, but despite that he did not seize the said CCTV footage. The fact whether the CCTV footage at the office of advocate Sh. Mir Akhtar Hussain, actually had a variation of half an hour or not, could have easily been verified by the FSL. But the IO did not seize the CCTV footage and by not doing so there is no doubt that the IO did not conduct a fair investigation in this case. Had the said CCTV footage been seized and examined by the FSL, it would have gone a long way to decide the course of investigation. Therefore, in the opinion of the court, the IO did not do justice to his professional duties and committed a grave mistake.
58. There is another aspect which raised a reasonable doubt in the prosecution case. The incident had happened on 14.07.2013.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 40/45 The complainant had handed over her clothes to the IO PW-12 on the same day at the spot. PW-8 HC Sohan Pal was the MHC(M) in the police station. He deposed that on 14.07.2013, IO SI Kuldeep had deposited one sealed pullanda stating to contain burnt clothes. However, the said pullanda was sent to FSL through Ct. Rajesh in the intact sealed condition vide RC (road certificate) proved as Ex.PW-8/A. PW-13 Dr. Kanak Lata Verma deposed that she received the sealed pullanda with the seal of KS on 29.10.2013. Thus, there was a delay of almost three and half months in sending the pullanda to the FSL. The fact remains that the burnt clothes of the complainant remained in the police station for such a long period. The seal always remained with the IO. The samples remained in the police station. There was no reason as to why the samples would remain in the police station for such a longer period of time. The MHC(M) is the subordinate of the SHO. In such scenario, the manipulation in the police station, cannot be ruled out and there was every possibility that the clothes were infused with the sulfuric acid in the police station and thereafter they were sent to the FSL. The same gets proablised in view of the fact that the complainant did not have any serious injury and her injury was opined as simple and she was also discharged by the doctor from the hospital as well as the fact that the doctors in the casualty did not deem it proper to remove her clothes in the hospital. Thus, it appeared that the sulfuric acid was poured into the clothes in the police station only and thereafter, they were sent to the FSL.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 41/45
59. Thus, the aforesaid lapses and defects in the investigation, as discussed hereinabove, leave no doubt in the mind of the court that the IO has not carried out the investigation in the professional manner and failed to keep the sanctity of law intact. The duty of IO is not only to collect the evidence which is favourable to the prosecution but it is also his solemn duty to collect all the evidence favourable to the accused also. The IO despite knowing the previous inimical history between the parties having received different complaints, after filing replies to the bail applications wherein DW-3 Sh. Mir Ahktar Hussain filed the CCTV footage and attending the hearings of the bail applications, but not collecting the same and sending the CCTV footage to the FSL cast serious aspersions on his conduct as investigating officer of the case. IO has utterly failed to discharge his statutory obligations. The lapses and the defects in the investigation coupled with the oral and documentary evidence show that there are reasonable doubts in the prosecution case extending the benefit of doubt to the accused persons.
60. Now, let me consider the submissions of Ld. Counsel for the accused that there are material contradictions in the prosecution case. Ld counsel has further argued that the testimony of PW-3 cannot be believed for the want of corroboration. I have already discussed in detail in the earlier parts of the judgment, the various contradictions and improvements in the evidence. The testimony of PW3 shows that in her initial version she did not mention several important details of the case but it is in her deposition only she deposed State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 42/45 about the same. The same were not trivial matters but important details and they were the material discrepancies. Therefore, I accept the contentions of the Ld. Counsel that indeed there are material contradictions in the case.
I also do not have hesitation in holding that PW-3 was not a 'sterling witness' as there were several shortcomings in her testimony and thus, she is not a wholly reliable witness and, for the want of corroboration to her testimony, she is not a believable witness so as to bring home the guilt of the accused persons.
61. In conclusion, it can be held that the accused persons deserves the benefit of doubt due to following reasons:-
a. The complainant PW-3 did not divulge the previous inimical history between the accused persons and one Leelaram at the very first instance.
b. The complainant also did not spell out at the first instance regarding one Sardarji, who took her to PCR. c. There are various material contradictions in the case of the prosecution.
d. The simple injury on the person of PW-3 discredited her regarding attack on her as she alleged that she was injured by a highly corrosive substance like sulfuric acid. e. The complainant was discharged from the hospital in the same clothes which she was wearing at the time of acid attack on her, which was improbable as she would not have been discharged on the same day and that too in the same clothes.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 43/45 f. The IO did not call any Crime Team at the spot, which resulted in losing the forensic evidence from the spot. g. The IO for the reasons best known to him did not examine HC Mahavir, in-charge of QRT who allegedly brought the victim in the hospital.
h. The IO did not examine the house owner in whose house the complainant allegedly changed her clothes.
i. The IO despite knowing the fact during the investigation that one of the accused alleged that he was attending a conference with his advocate at a distant place from the spot, still did not carry out investigation in this regard which casts a doubt on his bonafide intention. J. The IO despite checking the CCTV footage of the said advocate's office, did not seize the same.
k. The defence witnesses have clearly proved the inimical history and previous case of another acid attack on Ms. Kamini, sister of accused Sonu and Monu and DW-4 Smt. Harbans Kaur deposed that her son Amit had an illicit relationship with one Rakhi, niece of Leelaram. l. PW-13 Dr. Kanak Lata Verma, the FSL expert stated that the sulfuric acid, if falls on the floor or the metal would leave stains, but still no forensic evidence was collected by the IO.
m. The delay in sending the burnt clothes of the injured PW-3 to the FSL after a period of 3 ½ months has raised serious concern and raises serious doubt in the case of prosecution.
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 44/45 Conclusion:
62. In view of the aforesaid discussions, I am of the opinion that the aforesaid circumstances cumulatively indicate that there is a reasonable doubt in the story of the prosecution, which makes the accused persons entitled for the benefit of doubt. Hence, all the accused persons namely Anil @ Monu, Johny, Sanjeev Kumar @ Sonu and Ajay @ Sanoj Kumar stand acquitted from the offence u/s 326A/34 IPC.
63. Earlier Bail bonds of accused persons stand discharged. The original documents of their previous respective sureties, if any be returned to them after cancellation of endorsement and upon the identification of the sureties.
64. The bail bonds furnished u/s 437 A Cr.P.C of accused persons are extended for a period of six months for the purpose of Section 437A Cr.P.C. After the expiry of six months, their bail bonds shall stand cancelled and surety bonds discharged. Original documents of their respective sureties, if any be returned to them after cancellation of endorsement and upon the identification of the sureties after the expiry of six months. Case property, if any be destroyed after the expiry of period of appeal.
65. File be consigned to Record Room.
Digitally
signed by
HEM HEM RAJ
Date:
Pronounced in the open RAJ 2024.09.18
16:14:59
+0530
Court on 18-09-2024. (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Anil @ Monu & Ors SC No. 56135/2016 FIR No.294/2013 45/45