Calcutta High Court (Appellete Side)
Rakesh Mondal vs The State Of West Bengal & Another on 13 March, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble JUSTICE JOYMALYA BAGCHI
And
The Hon'ble JUSTICE SUVRA GHOSH
CRA 49 of 2018
Rakesh Mondal
- VERSUS -
The State of West Bengal & Another
With
CRA 37 of 2018
Chandan Pal
-Versus-
The State of West & Another
For the Appellant in CRA 49 of 2018: Ms. Minoti Gomes, Adv.
For the Appellant in CRA 37 of 2018: Mr. Mrityunjoy Chatterjee, Adv.,
Mr. Amanul Islam, Adv.
For the State: Mr. Arun Kr. Maity, APP
Mr. Tarun Kumar Chatterjee, Adv.,
Ms. Trina Mitra, Adv.
Heard on: 27.02.2020
Date: 13.03.2020
SUVRA GHOSH, J. :-
1.Both the appeals are directed against judgment and order of conviction and sentence dated 20-12-2017 and 21-12-2017 passed by 2 the Additional Sessions Judge, 1st Fast Track Court, Berhampore, Murshidabad in Sessions Trial No. 04(07)/2017. By the said judgment, the Learned Trial Judge convicted appellant Rakesh Mondal for offence punishable under Section 326A I.P.C and Section 341 IPC and sentenced him to suffer rigorous imprisonment for ten years and pay fine of Rs. 1,00,000/-, in default to suffer simple imprisonment for another two years for offence punishable under Section 326A of the I.P.C. and to suffer simple imprisonment for one month and pay fine of Rs. 500/-, in default to suffer simple imprisonment for 3 days for offence punishable under Section 341 of the I.P.C. The learned Court convicted appellant Chandan Pal for offence punishable under Section 326A of the I.P.C. read with Section 109 of the I.P.C. and sentenced him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,00,000/-, in default to suffer simple imprisonment for another two years. He was further convicted for offence punishable under Section 6(b) of the Poison Act, 1919 and was sentenced to suffer imprisonment for three months and pay fine of Rs. 500/-,
2. Ayesha Khatoon, the ill-fated victim suffered acid burn injuries which led to registration of the present complaint. On 18-08-2016, the victim's father Yeanoch Mondal lodged written complaint before Nowda Police Station to the effect that on the same day at about 10:30 A.M. when Ayesha was proceeding towards Chandpur Gram Panchayat Office from her house to collect a certificate, Rakesh 3 Mondal stalked her. As the Panchayat Pradhan was not present in the office, Ayesha started on her way back home. At that time at about 11:00 A.M. Rakesh threw acid aiming her eyes and face resulting in severe burn injuries and pain on her person. She fell on the ground writhing in pain and was taken to Amtala hospital by local people. The miscreant fled away.
3. On receipt of the complaint, Nowda Police Station Case No. 235/2016 dated 18-08-2016 under Section 341/326A/307 of the I.P.C. was started. On completion of investigation charge sheet was submitted against the appellants under Section 341/326A/307/109 of the I.P.C. read with Section 6(b) of the Poison Act, 1919. The case was committed to the Court of learned Sessions Judge, Murshidabad and subsequently transferred to the Learned Additional Sessions Judge, 1st Fast Track Court, Berhampore, Murshidabad for trial.
4. On the basis of material on record, charge was framed against appellant Rakesh Mondal under Section 341/326A/307 of the I.P.C. and against appellant Chandan Pal under Section 326A read with Section 109/307 of the I.P.C. Charges were read over and explained to accused persons to which they pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 11 witnesses in support of its case and several documents/material were marked as Exhibits 1-22 and Material Exhibits I-III/1 on its side.
5. The appellants refrained from adducing any evidence in support of their defence and their plea, as appears from the cross-examination 4 of witnesses as well as examination of the appellants under section 313 of the Cr.P.C., is that of innocence and false implication.
6. Learned advocates for the appellants has drawn the attention of the Court to the short comings and contradictions in the evidence led by the prosecution and have submitted that appellant Rakesh Mondal was not named by the victim before the doctor and there is no eye- witness to the alleged incident. The version of the prosecution witnesses is at variance with each other. The First Information Report states that the accused fled away after the incident whereas PW-4 (the victim) stated that he was intercepted by local people and handed over to the Police. The victim's friend Sumita (PW-3) did not see the miscreant when she returned to the spot. The assailant was referred to by the victim before the doctor as Rakibul and not as Rakesh. The injuries of the victim were stated to be simple in the medical document. The wearing apparel of the victim or the bicycle which she was riding at the relevant time was not seized.
7. Speaking for appellant Chandan Pal, learned advocate has submitted that this appellant has no connection whatsoever with either Rakesh or the alleged incident. There is no document on record which suggests that the shop "Chandan Hardwares" was owned or run by this appellant at the material time. Besides alleged seizure of some bottles of acid, there is no other evidence against the appellant suggesting his involvement in the offence. Learned advocates for both the appellants have finally submitted that the evidence on record is far 5 from sufficient to substantiate the charges against the appellants and the appellants are entitled to the benefit of doubt and should be favoured with an order of acquittal.
8. Learned advocate for the State has supported the judgment impugned and has submitted that the acid attack upon the victim has been sufficiently and adequately proved by the victim herself, her friend Sumita and other witnesses who rescued her. The injury reports of the victim suggest acid burn injuries over the right side of the face, forehead, throat, neck, shoulder, and a portion of the chest and right arm of the victim and the substance used to inflict such injury is corrosive acid. The witnesses have withstood the rigours of cross-examination and their evidence alongwith the medical documents substantiate the charges against the appellants. Learned advocate has prayed for dismissal of both the appeals and affirmation of the judgment and order impugned.
9. In order to determine the guilt or otherwise of the appellants, it is necessary to scan, weigh and discuss the evidence led by the prosecution. The prosecution has examined as many as 11 witnesses in support of its case. PW-1 Yeanoch Mondal who is the defacto complainant stated that on 18-08-2016 his daughter Ayesha Khatoon went to the Panchayat office to collect certificate and started returning home without the certificate as the Pradhan was not present in the office. On her way back, accused Rakesh Mondal threw acid on her face resulting in pain and burning sensation on her face. She was 6 rescued by local people and taken to the hospital where she disclosed to her father (PW-1) that Rakesh Mondal had thrown acid on her face. PW-1 did not visit the place of occurrence. He stated that the acid was in a small glass bottle and Ayesha was wearing a churidaar at that time which was spoilt and burnt due to spilling of acid.
10. PW-2 Parimal Adhikary scribed the written complaint and has no personal knowledge about the incident.
11. PW-3 Sumita Khatoon had accompanied the victim on her way home from the Gram Panchayat office and stated that the miscreant whom she knew but could not recollect his name, obstructed their path by holding the bicycle of Ayesha. She left the place leaving Ayesha alone and heard that the miscreant had thrown acid on Ayesha. On returning to the place of occurrence, she found Ayesha lying on the ground writhing in pain and covering her face with her hands and she found fume emanating from the right side of her face. She did not see the miscreant at the spot and heard from the people present there that Rakesh was the miscreant who proposed to marry the victim and was refused. Ayesha was taken to Amtala Rural Hospital.
12. PW-4 Ayesha Khatoon (the victim) narrated the entire incident and added that when she was returning from the Panchayat office with her friend Sumita Khatoon, Rakesh Mondal obstructed her path with a marriage proposal and on her denial, he threw acid on her face from a plastic container that he was carrying. Sumita left her to seek 7 help and the persons who gathered there caught hold of Rakesh and handed him over to the Police, when a Police jeep came to the place of occurrence about 5-6 minutes after the incident. The victim was taken to the Amtala Rural Hospital by one Robiul and was later treated at Murshidabad Medical College and Hospital. She was also treated at NRS Hospital, Kolkata.
13. PW-5 Dr. Pritam Hazra treated the victim at Amtala Rural Hospital and found "excoriation on right side of the face, right armpit and right side of the neck. There were also superficial blisters over the aforesaid three regions." The doctor opined that the injury was caused due to a corrosive acid and advised the patient for further treatment at Murshidabad Medical College and Hospital. The victim did not name her assailant before this doctor.
14. PW-6 Tarun Pal and PW-7 Asit Kumar Pal are seizure witnesses and have not been of any aid to the prosecution case.
15. PW-8 Dr. Mohammed Nefaur Rahaman treated the victim at Murshidabad Medical College and Hospital and found acid burns over the right half of the face and scalp and part of neck of the victim girl. The victim appeared before the Medical Board comprising three specialist doctors of Murshidabad Medical College and Hospital and she was referred to NRS Medical College for plastic surgery.
16. PW-9 Nirmal Das is the Investigating Officer who investigated the case and submitted charge sheet against the appellants. 8
17. PW-10 Manirul Mondal who was standing in front of the Panchayat office at the relevant time heard a hue and cry that somebody had thrown acid at a girl. He found the accused running away towards the field. The accused was apprehended and this witness saw the victim writhing in pain and rubbing away the acid from her face and neck with her scarf. A Police van arrived at the spot within twenty-five minutes and this witness signed on the seizure list prepared by the Police. He also identified the plastic container seized by the Police from the spot. This witness happens to be the uncle of the defacto complainant.
18. PW-11 Tinku Malitha owned a mobile repairing and photo shop at the material time and assisted the Investigating Officer in printing eleven photographs of the victim through data cable.
19. That the victim suffered acid burn injuries on her person is substantiated by the injury reports issued by Amtala Rural Hospital, Murshidabad Medical College and Hospital, and NRS Hospital. The incident occurred on 18-08-2016 at about 10:30 and 11:00 A.M. and the victim was taken to the Amtala Rural Hospital on the same day by Robiul Mondal and medically examined at about 12:40 as reflected in the injury report (Exhibit-3). The victim (PW-4) stated that she was taken to the hospital by Robiul immediately after the incident. She also stated that she returned home from Amtala Rural Hospital in the evening. The F.I.R. was lodged by the victim's father at about 19:30 hours on the same date. It is fact that there was a delay of eight 9 hours in lodging the F.I.R. though the appellant was apprehended by the Police from the place of occurrence soon after the incident as stated by the witnesses. But the Court should not lose sight of the fact such an incident of acid attack upon the victim in broad day light would have had a serious impact on the defacto complainant who is the father of the victim and he took some time to gather himself to lodge the complaint after securing adequate medical assistance for his daughter and ensuring her physical and mental stability. Such negligible delay in lodging the complaint can very well be ignored and any kind of exaggeration, concoction or falsehood in the version of the complaint can be safely ruled out.
20. The defacto complainant did not witness the incident and was informed by the victim that appellant Rakesh had thrown acid on her face. PW-3 Sumita had accompanied the victim on her way home from the Panchayat office and both of them were obstructed by Rakesh who wanted to speak to them. Though Sumita left the place when Rakesh sprinkled acid on the victim, she returned soon thereafter and saw the injured victim. She also heard that Rakesh had poured acid on the victim. PW-10 appears to have been present near the place of occurrence at the material time and saw Rakesh running away towards the field. He also saw Rakesh being intercepted by a few people soon after the incident. He found the victim at the spot writhing in pain due to acid burn injuries and she was rubbing away the acid with her scarf. This witness spoke in tune 10 with the victim to the effect that the Police arrived at the spot after some time and Rakesh was handed over to the Police. This confirms presence of Rakesh at the place of occurrence when the incident occurred. According to the victim, Rakesh was carrying a plastic container which contained the acid which was thrown on her. The plastic container was recovered by the investigating agency on the date of occurrence at 21:50 hours from Chandpur village by the side of Chandpur Gram Panchayat office as shown by Rakesh. Though the defacto complainant stated that the acid was kept in a glass bottle, his statement cannot be given much credence as he was not present at the place of occurrence at the relevant time. Therefore it can be inferred that the acid kept in the plastic bottle recovered by the Police was thrown on the victim which caused burn injuries on her person.
21. True, though the evidence on record suggests presence of several persons soon after the incident which occurred in a public place, none of the said persons has been examined by the prosecution. Nevertheless, the evidence of the victim herself coupled with the evidence of PW-3 and PW-10 who although did not witness the throwing of acid by Rakesh, reached the spot soon after the incident and saw the acid burn injuries of the victim, is sufficient and adequate to come to a definite conclusion regarding the guilt and involvement of appellant Rakesh in connection with the alleged incident. PW-3 saw Rakesh just before the incident occurred and PW- 10 saw him fleeing away soon after the incident.
11
22. PW-10 appears to be related to the defacto complainant. But the version of such related witness cannot be discarded merely on account of his relation with the defacto complainant. It is trite law that evidence of such witness ought to be tested on the touchstone of truth and credibility. In the present case, as it is not the case of the appellant that PW-10 was previously known to Rakesh or had any animosity with him which would prompt him to falsely implicate the appellant, his evidence can be safely relied upon, more so, as it is corroborated by other ocular as well as documentary evidence on record and therefore, inspires confidence of the Court.
23. It has been pointed out by learned advocate for appellant Rakesh Mondal that the victim named one Rakibul and not Rakesh as the assailant before the doctor. It transpires from the injury reports of the victim that the victim did not name the assailant before any doctor except at NRS Medical College and Hospital. She named the assailant as Rakibul before the doctor at NRS Medical College and Hospital on 03-09-2016. The incident occurred on 18-08-2016 and it is not disputed that the appellant was not known to or acquainted with the victim prior to the incident. F.I.R. registered on 18-08-2016 discloses name of the assailant as Rakesh as told by the victim. Therefore it is likely that the name of the assailant had been mistakenly recorded as Rakibul in the medical records on 03-09-2016. Existence of any person named Rakibul is also not found within the four corners of the record. Therefore such error in recording the name of the assailant in 12 the medical records is inadvertent and does not affect the prosecution case adversely. Also, the presence and culpability of Rakesh were proved by ocular evidence on record.
24. The wearing apparel and bicycle of the victim were not seized in course of investigation. Such conduct of the investigating agency can at best be termed as a lapse on their part and does not strike at the root of the prosecution case. The entire prosecution case cannot be discarded on such score as the case has been otherwise substantiated by the evidence on record.
25. The chain of circumstances unerringly point towards the guilt of this appellant and is adequate, sufficient and convincing enough to prove beyond reasonable doubt that the appellant and none else was guilty of wrongfully restraining the victim and throwing acid on her person, thereby causing acid burn injuries. In the said backdrop, it can be concluded that conviction and sentence of appellant Rakesh Mondal under section 341/326A of the I.P.C. should be upheld.
26. With regard to appellant Chandan Pal, it is the case of the prosecution that Rakesh procured the acid from the shop of Chandan Pal who runs business of selling acid without valid licence. This appellant was convicted for offence punishable under section 326A read with section 109 of the I.P.C. and under section 6(b) of the Poison Act.
27. It appears from the seizure list dated 22-08-2016 (Exhibit- 4/2) 13 that five sealed bottles of acid were seized from Chandan Pal in his shop "Chandan Hardwares". No document was seized by the Investigating Officer to prove that the said shop was owned or occupied by this appellant or that he carried on business of acid from the said shop. Besides obtaining the signature of the appellant in the seizure list, there is not a scrap of paper collected by the Investigating Officer suggesting nexus of the appellant with sale of the acid or the alleged incident. The Investigating Officer admitted that he did not mention the name of the owner of the shop, nor did he seize any sale memo, voucher or any other document which suggest that this appellant sold acid from the said shop. Though he stated that pursuant to leading statement of Rakesh he went to the shop of Chandan Pal and seized five bottles of acid therefrom, the said purported statement of Rakesh was not produced before this Court. In fact, the Investigating Officer admitted that there was no endorsement in the statement of appellant Rakesh recorded under section 161 of the Cr.P.C. that the appellant had agreed to show the shop from which he had purchased the acid. No statement of Chandan Pal was also recorded under section 161 of the Cr.P.C. Samples of acid allegedly thrown on the victim and that collected from the shop were sent for forensic examination. The reports of the Central Forensic Science Laboratory (Exhibits - 21-22) reveal that the acid thrown on the victim was nitric acid whereas the acid seized from the shop was hydrochloric acid, the chemical composition of both the acids being poles apart. This snaps the link between appellant 14 Chandan Pal and the incident. By no stretch of imagination can it be held that this appellant had any link whatsoever with either Rakesh or the occurrence or that he was involved in any business of selling acid or sold the same to Rakesh. In the result, he cannot be held guilty of offence punishable under section 326A/109 of the I.P.C. and should be acquitted from the said charge.
28. It is pertinent to refer to section 6(b) of the Poison Act, 1919 which is set out:
"6. Penalty for unlawful importation, etc- (1) whoever-
(a) ..................................................., or
(b) imports without a licence into India across a customs frontier defined by the Central Government any poison the importation of which is for the time being restricted under section 3,or
(c) ..................................................... shall be punishable,-
(i) on a first conviction, with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both, and
(ii) on a second or subsequent conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
29. In the case in hand, the prosecution has miserably failed to bring home evidence connecting this appellant to importation of any restricted poison as required to constitute an offence under section 6(b) of the Poisons Act. Therefore conviction of the appellant on that score too has too weak a leg to stand upon and is required to be set aside.
30. In the light of my aforementioned discussion as well as material on record, I have no impediment to hold that conviction and sentence 15 of appellant Rakesh Mondal should be upheld and that of appellant Chandan Pal should be set aside.
31. Accordingly, CRA 49 of 2018 is dismissed.
32. The judgment and order of conviction and sentence of appellant Rakesh Mondal dated 20-12-2017 and 21-12-2017 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Berhampore, Murshidabad in Sessions Trial No. 04(07)/2017 is affirmed.
33. CRA 37 of 2018 is allowed.
34. The judgment and order of conviction and sentence of appellant Chandan Pal is set aside.
35. The appellant be set at liberty at once and be discharged from his bail bond.
36. Copy of the judgment along with L.C.R. be sent down to the trial Court at once.
37. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.
I agree.
(Joymalya Bagchi, J.) (Suvra Ghosh, J)