Allahabad High Court
Narendra Prasad vs State Of U.P. on 18 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 499
Author: Subhash Chand
Bench: Subhash Chand
HIGH COURT OF JUDICATURE AT ALLAHABAD
A F R
[RESERVED]
On 25.1.2021
Delivered on 18.2.2021
Court No. 86
Case :- CRIMINAL APPEAL No. - 4031 of 2019
Appellant :- Narendra Prasad
Respondent :- State of U.P.
Counsel for Appellant :- Kedar Nath Mishra
Counsel for Respondent :- G.A.
Hon'ble Subhash Chand,J.
1. The instant Criminal Appeal is against the judgment and order dated 30.3.2019 in Sessions Trial No. 104 of 2015 (State vs. Narendra Prasad) arising out of Case Crime No. 1426 of 2014 under sections 326-A,504 and 506 of IPC, P.S. Gauri Bazar, District Deoria passed by IV Additional Sessions Judge (Essential Commodities Act) Deoria whereby the accused Narendra Prasad was held guilty and was punished for the offence under Sections 326-A of IPC with rigorous imprisonment of 10 years and a fine of Rs. 20,000/- in default of payment of fine, the additional rigorous imprisonment of 4 months was to be undergone; for the offence under section 504 of IPC was punished with rigorous imprisonment of one year and fine of Rs. 500/- in default of payment of fine, 10 days additional imprisonment was to be undergone; and for the offence under section 506 of IPC was punished with rigorous imprisonment of one year and fine of Rs. 500/- in default of payment of fine, 10 days additional imprisonment was to be undergone. All these sentences were directed to run concurrently and the amount of Rs. 15,000/- out of the imposed amount of fine was to be paid to the victim.
2. The brief facts of the prosecution case are that the informant Smt. Neeraj Devi moved a written information with the police station concerned with these allegations that she was married with Narendra Prasad resident of village Patharhat, District Deoria four years ago. At present she had been residing at the parental house Village Chariaon Bujurg, P.S. Gauriganj, District Deoria. Her husband Narendra Prasad had thrown acid on her body and face on 22.10.2014 at 10, O clock of night while she was asleep whereby she was bitterly scorched. After having thrown acid on her and hurling filthy abuses her husband fled away extending life threat. Her husband had not permitted her to reside in the matrimonial house and had also criminally intimidated to her and her children. She was rushed to the hospital for treatment. After getting some relief this report was given to the police station concerned. It was written by Sanjay Kumar, son of Chandra Bhan, resident of village Chariaon Bujurg, P.S. Gauriganj, District Deoria and same was singed by the informant Smt. Neeraj Devi. On this written information Case Crime No. 247 of 2014 was registered against Narendra Prasad under sections 326-A, 504 and 506 of IPC with the Police Station Gauriganj, District Deoria on 26.10.2014.The Investing Officer after having concluded investigation filed charge sheet against the accused Narendra Prasad to the court of Chief Judicial Magistrate, Deoria, who took cognizance on the charge sheet and committed the same for trial to the court of Sessions.
3. The trial court framed the charge against the accused Narendra Prasad under sections 326-A, 504 and 506 of IPC. The charge was read over and explained to the accused who denied the charge and claimed to be tried.
4. On behalf of the prosecution to prove the charge against the accused in documentary evidence filed the written information Exb.Ka-1, site plan of the place of occurrence Exb.Ka-2, Charge-sheet Exb. Ka-3, injury report of victim Exb.Ka-4, GD entry in regard to registering the case crime Exb. Ka-5, recovery memo of taking into possession cloth of victim & Laltain Exb. Ka-6 and check FIR Exb. Ka-7.
5. In ocular evidence on behalf of prosecution the following witnesses were examined; PW-1 Smt. Neeraj Devi, PW-2 Smt. Subhawati Devi, PW-3 Chandra Bhan, PW-4 SI Vinay Kumar Singh, PW-5 Dr. Indra Dev Gaur and PW-6 H.C. Ram Chandra Yadav, PW-7 Yogendra Singh and CW-1 H.C. Brahma Nand Chaudhary.
6. The statement of accused Narenda Prasad under section 313 of Cr.P.C., was recorded in which he denied the incriminating circumstances in the evidence against him and stated that on the date of occurrence he was in Delhi where he had been residing since 2013 and he had been falsely implicated in this case due to enmity. On behalf of accused in defence evidence examined DW-1 Ram Kishan and DW-2 Ram Surat.
7. The trial court after hearing the submissions of learned counsel for the rival parties passed judgment on 30.3.2019 and convicted accused Narendra Prasad for the aforesaid offence and punished as stated above.
8. Aggrieved by the impugned judgment of conviction and sentence this criminal appeal has been preferred on behalf of the appellant Narendra Prasad on the ground that the impugned judgment is illegal and is based on perverse finding. The trial court did not appreciate the evidence on record in proper perspective. The prosecution story is not supported with the prosecution witnesses. On the date of occurrence appellant was in Delhi who had been residing Delhi which is at the distance of 1000 kms, from the place of occurrence. The appellant came to know in regard to occurrence at Delhi and reached Deoria. Thereafter, surrendered himself before the court on 23.1.2015 and since then has been languishing in jail but the court below did not believe in the defence evidence and convicted the appellant on the wrong appreciation of the evidence. Accordingly, prayed to allow this criminal appeal and set-aside the conviction and sentence passed by the court below.
9. Heard Sri Kedar Nath Mishra, learned counsel for the appellant and Sri Ashish Mani Tripathi, learned AGA for the State and perused the lower court record.
10. On behalf of prosecution, to prove the prosecution case in ocular evidence, adduced PW-1 Smt. Neeraj Devi who is victim of the occurrence, PW-2 Smt. Subhawati Devi who is mother of the victim and PW-3 Chandra Bhan, father of victim and PW-7 Yogendra Singh as a witness of fact.
11. PW-1 Smt. Neeraj Devi in her statement says that the occurrence is of 22.10.2014 at 10.00-O Clock of night. She was at her parental house in village Chariaon Bujurg. Her husband Narendra Prasad reached to her parental house at 10, O Clock of night. She was lying on the cot along with her child in the thatched roof-house. Her husband hurling abuses and extending life threat threw acid on her body whereby she was burnt bitterly. Her husband fled away from there. Her brother and father both made effort to catch hold of her husband. This occurrence was also seen by her mother, father and uncle Ram Sewak. She rushed to the hospital of Gauri Bazar. After getting some relief, the FIR was lodged and signed by her is Exb. Ka-1.
Again on 1.3.2016 this witness was further cross examined and says that on the date of occurrence she was sleeping in the room. On throwing acid she cried, her family members attracted there. She could not know who had thrown acid on her and also could not know who hurled abuses and criminally intimidated to her and she lodged FIR at the behest of others. This witness was declared hostile by the prosecution and was cross examined on behalf of prosecution and further says that the report was written by her brother Sanjay Kumar and she put her signature thereon. Her husband had illicit relation with other women and with this reason he usually beat her and ousted her from matrimonial house. This witness was also cross examined by the court below and further says that accused Narendra Prasad is her husband and he had thrown acid on her. He never wanted to keep her with him in the in-laws house with this reason she had lodged the FIR.
12. PW-2 Smt. Subhawati Devi in her statement says that at the time of occurrence Laltain was being lit. Accused Narendra Prasad came at 10, O Clock in night and threw acid on the body of her daughter. In the light of Laltain she identified Narendra and family members also made effort to catch hold him. He fled away hurling abuses and extending life threat. In cross examination this witness also further says that Narendra Prasad had told to the Aunti of Smt. Neeraj Devi that he wanted to disfigure the face of Smt. Neeraj Devi and Aunti of Smt. Neeraj Devi also told her in regard to the same. Smt. Neeraj Devi remained in hospital over night and next day she was brought to the house. Due to financial duress no further treatment was taken.
13. PW-3 Chandra Bhan in his statement says that relation between Smt. Neeraj and her husband was strained with this reason, acid was thrown by Narendra Prasad on the body of her daughter Smt. Neeraj Devi. Her face, chest, eyes were burnt. On her screaming, he attracted there and made effort to catch Narendra Prasad but he fled away. This witness in his cross examination says that he awoke on her screaming. He did not see throwing acid. His son-in-law resided in Delhi and he wants to get his daughter married with some other person because of poverty of Narendra Prasad.
14. PW-7 Yogendra Singh is the witness of fact. This witness in his cross examination says that he came to know in regard to occurrence from the people of the village who had told him that the daughter of Chandra Bhan was burnt due to acid throwing. He also reached to see Smt. Neeraj Devi. Acid burnt injuries were also on her body. He could not know by whom the acid was thrown and this witness also declared hostile by the prosecution and denied to the statement given to the Investing Officer under section 161 Cr.P.C.
15. On behalf of prosecution to prove the case with medical evidence also examined PW-5 Indra Dev Gaur. This witness medically examined Smt. Neeraj Devi and proved the injury report Exb.Ka-4 on 23.10.2014 at 2.10 p.m., and in examination he found the following injures:-
(1) Blue and black colour blisters were present on both sides of face, chin, both eyelids, front and left side of the neck, left chest region, left shoulder, left arm pit, left side of arm and occasional small blisters were also present on the upper lip and complaint was of pain and itching; and (2) Complaint of diminishing eye vision. In his opinion these injuries were acid burnt. It was 15% and were likely to be caused at 10, O clock of night on 22.10.2014.
In cross examination this witness further says that after throwing acid the mark of injury will initially be red and blue and after six hours it will turn blue, black.
16. Learned counsel for the appellant submitted that the FIR of this was lodged belated of which there is no cogent explanation on behalf of prosecution and same makes the prosecution story dubious.
From the perusal of the FIR Exb. Ka-4 it transpires that the occurrence is of 22.10.2014 at 10, O clock and the FIR was lodged on 26.10.2014 at 10:30 hours with the police station Gauri Bazar and the distance of the police station from the place of occurrence is 8 kms. The FIR version itself explains the delay. It is noteworthy that this FIR was lodged by the victim herself and she says that due to acid burn injury she was rushed to the hospital and after getting relief from the burn injuries, she moved the written information with the police station concerned.
PW-2 Smt. Subhawati Devi in her statement says that her daughter remained in hospital over night and next day she was brought to her house. No further treatment was given to her due to financial duress and on the next day from the date of occurrence I.e. on 23.10.2014 the medical examination of her injuries was conducted by PW-5 Doctor Indra Dev Gaur and the FIR was lodged by the victim Smt. Neeraj Devi on 26.10.2014, 4 days belated from the date of occurrence which was also written by the brother of informant Sanjay Kumar who was also present at the house on the date of occurrence. None of the family members did lodge the FIR on the very day of medical examination of victim. The delay of 4 days from the date of occurrence seems to be after thought and same casts doubt on the prosecution story.
17. Learned counsel for the appellant also submitted that testimony of PW-1 Smt. Neeraj Devi who is the victim is tainted. There is contradiction in her statement. During examination before the trial court the statement of PW-2 Smt. Subhawati Devi and PW-3 Chandra Bhan who are the parents of the victim also did not corroborate the statement of victim. These three witnesses are interested witnesses and their testimony can not be relied upon. Moreover, the relations between the accused and his wife being strained also proves animosity and a ground for false implication of the appellant.
18. Learned AGA opposed the submissions made by learned counsel for the appellant and also submitted that the testimony of witness has to be read as a whole. Minor contradictions in the statement are natural due to back-ground of the witness in which he resides and also time gap between the date of examination of the witness and also the date of occurrence.
19. It is settled law that the testimony of witness has to be read as a whole. The court can not draw the inference of any single sentence uttered by the witness. In her statement PW-1 Smt. Neeraj Devi who is the victim of the occurrence accused her husband. This witness in her statement admits that the relations between her and her husband were strained. Her husband did not permit her to reside with him. So she had been residing at her parental house and on the date of occurrence she was also at her parental house. Although in examination-in-chief this witness supports the FIR case, yet in her cross examination this witness also says that due to throwing acid on her she cried, her family members also attracted there. She could not know by whom the acid was thrown and abuses were hurled and who had extended threat also. In cross examination by the court this witness also says that the acid was thrown by her husband but her husband did not want to keep her with him and used to beat her. With this reason she has lodged FIR, as such the statement of this witness bearing contradiction in itself becomes tainted and can not be said to be trustworthy.
So far as the statement of PW-3 Chandra Bhan is concerned, in examination-in-chief this witness supports the prosecution case but in cross examination this witness also says that he woke up on hearing the screaming of her daughter. He did not see any one throwing acid as it was dark night he could see nothing. He did not give statement to Darogaji. His son-in-law resided in Delhi and he wants to get his daughter married with some other person because of poverty of Narendra Prasad.
As such, the statement of this witness also is tainted and same can not be said to be trustworthy.
So far as the statement of PW-2 Smt. Subhawati Devi is concerned, this witness supports the prosecution version and in cross examination also says due to throwing acid Smt. Neeraj Devi cried. Hearing her screaming she, her dewar Ram Kishun and her husband Chandra Bhan attracted there. First of all, she, her husband Chandra Bhan and Ram Kishun attracted there. Besides them, Yogendra and Ram Sewak also reached there. None could catch Narendra Prasad. Narendra Prasad hurled abuses and criminally intimidated. She can not tell the reason why report was not lodged immediately after the occurrence.
20. So far as the medical evidence is concerned, PW-5 Dr. Indra Dev Gaur has proved the injury report of victim Exb. Ka-4 and says that blue and back colour blisters were present on the face, chin,eyelid, neck, chest region, shoulder, arm pit and complaint of diminishing vision was made by the victim and she was referred to expert opinion. Victim was 15% acid burn.
21. In this context the provision of section 326-A of I.P.C may be relevant to consider which reads as under:-
"Section 326-A Voluntarily causing grievous hurt by use of acid, etc. Whosoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or cause grievous hurt by throwing acid or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than 10 years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:
Provided further that any fine imposed under this section shall be paid to the victim."
22. To attract the provisions of Section 326-A of IPC it is not necessary that the injury caused due to acid throwing should be grievous only as is mentioned in the heading of this section. In Section 326-A of IPC there are shown eight kinds of injuries, first seven injuries may be simple or grievous in nature.
The Hon'ble Apex Court held in para 7 of the Criminal Appeal No. 1143 of 2019 arising out of SLP (Criminal) No. 7158 of 2019 Maqbool Vs. U.P. And another vide judgment September 7, 2018.
"The first seven of the injuries referred to in the Sections are classified based on the normal aftereffect of acid attack whereas the eighth one is on the gravity of the effect. Under section 326-A and 326-B grievous hurt is only one among the eight injuries. In view of the explanation under Section 326-B, the resultant damage or deformity under 326-A, Section 326-A or 326B is not required to be irreversible. The other seven injuries may be either simple or grievous. The nature of injury being simple or grievous, is irrelevant for distinguishing between Section 323 and Section 326-A of IPC or between Section 326-A and Section 326-A of IPC. If the injury referred to under Section 326-A or 326-B is one among the specified eight injuries, whether the seven of them be simple or grievous, the special provisions are attracted."
Therefore, even if the injuries caused due to acid throwing are simple in nature; but the same come within the periphery of the offence of 326-A of IPC. As such, from the medical evidence the offence of 326-A of IPC is made out; but who is the perpetrator of this offence, same is not proved beyond reasonable doubt from the statement of victim PW-1 Smt. Neeraj Devi herself and also from the statement of PW-3 Chandra Bhan and PW-2 Smt. Subhawati Devi.
23. Learned counsel for the appellant also submitted that the plea of alibi was also not considered by the trial court; while this defence was also taken by the appellant/convict in his statement under section 313 Cr.P.C and also adduced the defence witness who have deposed that the appellant had been residing in Delhi and was not present at the place of occurrence. The appellant in his statement under section 313 Cr.P.C., says that he had been residing in Delhi since 2013 and due to enmity he had been falsely implicated.
DW-1 Ram Kishan who is the defence witness and also the brother of PW-3 Chandra Bhan who is the father of victim in his statement says that on the date of occurrence Smt. Neeraj Devi was sleeping in her room. They are four brothers, Chandra Bhan is also his second brother. His house is adjoining to the house of Chandra Bhan who is the father of Smt. Neeraj Devi. He awoke on hearing the screaming due to throwing acid on Smt. Neeraj Devi. Narendra Prasad had been residing in Delhi. No one saw throwing acid on Smt. Neeraj Devi and also hurling abuses and criminally intimidating her.
DW-2 Ram Sewak in his statement says that he is the younger brother of Narendra prasad and on the date of occurrence Narendra Prasad was in Delhi but at the behest of the police they called Narendra Prasad from Delhi and on account of this case Narendra Prasad surrendered before the court. When the police came to his house in search of Narendra Prasad, at that time Narendra Prasad had been in Delhi.
24. The plea of alibi means presence at elsewhere. It is based on the physical impossibility of participation in the crime by the accused.
Here, it is also noteworthy that the plea of alibi is the plea of defence. Burden of proving the same shifts upon the accused; if the prosecution succeeds in proving the case beyond reasonable doubt.
The Hon'ble Apex Court held in Jayanti Bhai Bhanyankar Bhai Vs. State of Gujrat AIR 2002 SC 3569 once the prosecution succeeds in discharging its burden, it is incumbent upon the accused taking plea of alibi to prove it with certainty so as to exclude the possibility of presence at the place and time of occurrence.
25. In the present case, since the prosecution has failed to prove its case beyond reasonable doubt, therefore, even if the plea of alibi which is taken by the accused, the burden of proving the same can not be shifted upon the accused.
26. In view of re-appreciation of the evidence in this appeal the finding given by the trial court holding guilty to the appellant is perverse and bears infirmity.
27. Accordingly, this appeal deserved to be allowed.
28. The appeal is allowed and the judgment and order dated 30.3.2019 passed by IV Additional Sessions Judge(Essential Commodities Act) Deoria in Sessions Trial No. 104 of 2015 (State Vs. Narendra Prasad) arising out of Case Crime No. 1426 of 2014 under sections 326-A,504 and 506 of IPC, P.S. Gauri Bazar, District Deoria is set-aside. The appellant is in jail. He be released forthwith, if he is not wanted in some other case provided the bail bonds are furnished on his behalf before the trial court in compliance of section 437-A of Cr.P.C., to the satisfaction of the court concerned.
29. Let the copy of the judgment/order be certified to the court concerned for necessary information and follow up action.
Dated:18.2.2021 SKS