Chattisgarh High Court
Abdul Kayum S/O Mohammad Aayub vs State Of Chhattisgarh on 8 February, 2024
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 327 of 2016
• Abdul Kayum S/o Mohammad Aayub S/o Mohammad Aayub
Aged About 36 Years Caste Musalman, Occupation
Business, R/o Mauharpara Manendragarh, P.S. And Tahsil
Manendragarh, Distt. Korea Chhattisgarh. , Chhattisgarh
---- Revisioner
Versus
• State of Chhattisgarh Through P.S. Manendragarh, Distt.
Korea Chhattisgarh.
---- Respondent
For Revisioner : Mrs. Usha Chandrakar, Advocate For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer SB: Hon'ble Mr. Justice Parth Prateem Sahu Order on Board 08.02.2024
1. This criminal revision is filed against the the judgment dated 29.3.2016 passed in Criminal Appeal No.30/2009 whereby learned 2nd Additional Sessions Judge, Manendragarh dismissed appeal of revisioner and affirmed the judgment of conviction and order of sentence dated 28.12.1999 passed by the Judicial Magistrate 1st Class Manendragarh in Criminal Case No.621/1997 convicting applicant under Section 326 of the Indian Penal Code, 1860 (for short 'IPC') and sentencing him to undergo RI for 03 years with fine of Rs.500/-, in default to undergo RI for 06 months.
2. Facts of the case, in brief, are that on 03.11.1997 at about 10:15 p.m. in night, the complainant was going to his house 2 after closing his shop. When complainant reached near temple of Chanwari-daand, revisioner appeared and threw acid upon him. Complainant caught hold of revisioner by his hands for some time, however, revisioner managed to flee from there. Complainant was taken to the hospital and thereafter report of incident was lodged in concerned police station. Due to acid throwing, complainant suffered burn injuries on his chest, ear, cheek, left eye, lips, neck etc. Based on said complaint, offence under Section 326 of iPC was registered against revisioner and he was arrested. After completion of investigation, charge sheet was filed by police against revisioner, followed by framing of charge against him by the Court below under Section 326 of IPC. Revisioner abjured his guilt and sought for trial.
3. So as to prove complicity of accused/revisioner in the crime in question, prosecution has examined as many as six witnesses. Statement of accused/revisioner was recorded under Section 313 of the Code of Criminal Procedure, 1973 in which he pleaded innocence and false implication in the case.
4. After hearing the parties and going through material available in record including evidence of witnesses, learned Judicial Magistrate, convicted the revisioner under Section 326 of IPC and sentenced him in the manner as described in Paragraph No.1 of this order. Revisioner preferred criminal appeal before the Court of Sessions challenging his conviction, 3 which was also dismissed by the impugned judgment.
5. Learned counsel for revisioner submits that the impugned judgements suffer from perversity and illegality for the reason that both the Courts below have failed to appreciate the circumstances brought on record which have rendered testimony of injured complainant (PW-1) untrustworthy and unreliable. As per case of prosecution, the incident occurred on the road at about 10:15 p.m. in the night of 03.11.1997 and at the time of incident, assailant had covered himself from blanket. Thus it is clear that the place of incident was dark, in FIR or statement of complainant there is no mention of any source of light on the spot. Since it was totally dark and there was no source of light on spot, it was not possible for the complainant to recognize the assailant. In such a situation, possibility of someone else throwing acid on the complainant cannot be ruled out and therefore, sole testimony of PW-1 could not have been made basis to hold that revisioner was responsible for the acid burns sustained by complainant (PW-1). He further submits that the complainant has borrowed money from revisioner and in order to avoid repayment of borrowed money, the complainant has falsely implicated the revisioner in instant offence. He also contended that the doctor, who examined the complainant (PW-1), has opined in his report Ex.P-4 that the injuries noticed on complainant were simple in nature. Since no grievous injury is suffered by complainant, the trial 4 Court erred in holding revisioner guilty for the offence under Section 326 IPC
6. In alternate, learned counsel for revisioner submits that if this Court comes to conclusion that there is no perversity in the finding of guilt recorded by trial Court and affirmed by the appellate Court, then considering that revisioner is the first offender, incident is of the year 1997, he remained in custody for some days, the sentence imposed upon revisioner be reduced to the period which he has already undergone.
7. On the other hand, counsel appearing on behalf of the State supports the impugned judgements and submits that on the basis of evidence adduced by the prosecution, the revisioner has been held guilty by two Courts below for commission of offence punishable under Section 326 IPC. He further submitted that it is well settled that in case of acid attacks, the Courts should not show any leniency towards accused, therefore, the sentence imposed upon revisioner deserves to be affirmed.
8. I have heard learned counsel for the parties and perused the record carefully.
9. Perusal of the evidence of injured complainant (PW-1) indicates that on the date of incident, accused/revisioner threw acid upon him causing burn injuries on his neck, shoulder, ear and other parts of body. Injured caught hold of accused by his hands, however, accused managed to flee from his clutches. He has further stated that 2-3 days prior to 5 incident, accused threw a fire ball on his house regarding which he lodged report in police station. Dr. P.K. Banerjee (PW-4) is the doctor who examined the acid burn injuries of complainant and opined that injuries suffered by injured are grievous injuries and may result in permanent dis-figuration. Jakir Hussain (PW-2) and Sanjay Kumar (PW-3) are independent witnesses and they have stated that upon hearing cries of complainant (PW-1) when they reached the spot, the complainant told them that acid has been thrown at him. Thereafter, they took him to police station on scooter and report of incident was lodged. Both the aforementioned witnesses have stated that acid burn injuries were present on left side of face, ear and neck of complainant (PW-1). From the above unchallenged oral and medical evidence, it is clear that while the complainant (PW-1) was returning home from his shop, on the way acid was thrown on him and he suffered grievous acid burn injuries. Thus, presence of acid burns, which were grievous in nature, on PW-1 has been established beyond reasonable doubt from the material available in record.
10. True it is that the incident occurred on 3.11.1997 at about 10:15 p.m. when it was dark. However, from perusal of record it transpires that revisioner and complainant were residents of same village and both were well-known to each other. It has also come in the evidence of PW-1 that on throwing acid upon him, he caught hold of accused by his hands for some 6 time. This shows that the complainant had sufficient opportunity to identify the assailant and that is why he had mentioned name of revisioner as the assailant in the promptly lodged FIR. In cross-examination by defence, injured (PW-1) though admitted that there was darkness but denied the suggestion that he could not identify revisioner due to darkness. It is common practice of human behaviour that well acquainted people may be recognized and identified by their voice and physique even in dark night. In the case of Krishnan v. State of Kerala, reported in (1996) 10 SCC 508, it was observed as follows :-
"11... So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying a known person from a close distance....."
11. In case of Kedar Singh & ors vs. State of Bihar, reported in 1999 SCC (Criminal) 907, Hon'ble Supreme Court has held as under:-
"(3).....It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. Identification possible by voice too......"
12. In the matter of State of UP vs. Babu, reported in AIR 2003 SC 3408, Hon'ble Supreme Court has held that when the persons are known, identification is possible, even in dark light or where light is dim, from the physique, gesture of movement, manner of walking etc., gesticulating and special 7 features of a person like the physical attributes. Likewise in case of Ram Gulam Chaudhary v. State of Bihar, reported in (2001) 8 SCC 311, it was observed:-
"34....It must be remembered that the incident had taken place in a village. As has been held by this Court in the case of Kalika Tiwari v. State of Bihar the visibility capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. It has been held that the visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. Also the appellants were from the same village and were known to PW 3 and PW 4."
13. In the case of Dalbir Singh v. State of Haryana, reported in (2008) 11 SCC 425, it has been observed that "in a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gaits, physique and voice identification is possible."
14. From the above decisions it is clear that the persons can identify persons known to them even in the moonlight or dark night from the physique, gesture of movement, manner of walking etc.. In case at hand, the revisioner is known to the complainant from before and according to injured (PW-1), at the time of incident he caught hold of accused by his hands for some time. In the aforementioned facts of case, I do not find any reason to doubt identification of revisioner by the 8 injured complainant as his assailant. The Courts below have rightly accepted the evidence of injured regarding identification of revisioner.
15. As regards the plea of false implication, it is a mere plea with no supportive evidence. There is nothing on record indicating that from the time of incident till lodging of F.I.R., there was any opportunity for injured (PW-1), victim of acid attack, to cook-up a story and lodge a false F.I.R. naming revisioner as his assailant. Even for the sake of argument, it is taken to be true that there was some money related dispute between the complainant and the revisioner, then also it is quite improbable to believe that the injured would let go real culprit who threw acid on him and inculpate revisioner in his place. Hence, I am of the considered view that the plea of false implication is not of much avail for the revisioner.
16. It is well-settled that testimony of the victim of a crime is not required to be corroborated by other evidences, if the evidence of such injured witness inspires confidence of the Court. Sole testimony of such witness can be the basis for recording conviction. The reason being, presence of victim of an attack/assault on the spot cannot be doubted and a victim of an assault would seldom let go the real culprit who injured him and inculpate innocent person in his place. In case of State of Uttar Pradesh Vs Naresh & Ors., reported in (2011) 4 SCC 324, it was held thus :
"27. The evidence of an injured witness must be given due weightage being a stamped witness, 9 thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
In the case on hand, PW-1, who is the victim of acid attack, had ample opportunity to identify the assailant, he has identified the accused as assailant who threw acid on him and in the absence of any circumstances which would discredit his testimony, the trial Court was justified in placing reliance on his testimony.
17. The trial Court after evaluating the evidence of PW-1 and the medical evidence adduced, found the revisioner guilty under Section 326 of IPC and the same has been affirmed by the appellate Court. For interference in concurrent findings of fact in revision, it has to be shown that the findings recorded by the Courts below are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the materials. In case of Malkeet Singh Gill vs. State of CG & ors, reported in (2022) 8 SCC 204, the Hon'ble Supreme Court on the scope of Section 397 CrPC, has observed that if the Courts below 10 have recorded the finding of fact, the question of re- appreciation of evidence by the third Court does not arise unless it is found to be totally perverse. Para-11 of the said decision is reproduced herein below:-
"11. This Court in the case of Manju Ram Kalita v. State of Assam, reported in (2009) 13 SCC 330, while dealing with the scope of re-appreciation of evidence by higher Court in criminal revision, observed in paragraphs 9, 10 and 11 of the judgment as under
"9. So far as Issue 1 is concerned i.e. as to whether the appellant got married with Smt Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by re-appreciating the evidence.
10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.
"9. ....The position may undoubtedly be different if the inference is one of 11 law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure."
11. Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with."
18. In case at hand, learned counsel for revisioner has not been able to bring to notice of this Court, any circumstance indicating that concurrent findings of the Courts below is perverse or incorrect in any manner. Therefore, I am satisfied that the Courts below correctly appreciated the evidence available on record and rightly came to the conclusion that revisioner committed the offence punishable under Section 326 of IPC. This being the position, I find no reason to interfere with concurrent findings of the Courts below holding revisioner guilty for the offence punishable under Section 326 of IPC.
19. As regards quantum of sentence, considering the fact that 12 incident is of the year 1997, now more than 25 years have expired and by this time, revisioner would be more than 60 years of age, he has already remained in jail for about 21 days, revisioner is facing rigor of criminal trial for the last more than 25 years, therefore, it would be unjust to send him again behind the bars at this belated stage. Hence, I am inclined to take lenient view in the matter of sentence and in my opinion, ends of justice shall meet if the revisioner is sentenced to the period already undergone by him in place of RI for 03 years as imposed by the Court below.
20. In the result, the revision petition is partly allowed. While maintaining conviction of applicant under Section 326 of IPC, he is sentenced to the period already undergone by him instead of RI for 3 years as was imposed by trial Court. However, sentence of fine imposed upon revisioner with default stipulation shall remain intact.
Sd/-
(Parth Prateem Sahu) Judge roshan/-