Sudip Ahluwalia, J.@mdashThis appeal is directed against the Judgment and Order passed by the Learned Additional Sessions Judge, 6th Court at Barasat North 24-Parganas on 14.01.2009 in ST Case No. 2(7)2008/Sessions Case No. 1(7)2007 of his Court. The background of the case is that one Md. Hakim Biswas lodged an FIR at Deganga P.S. within district North 24 Parganas to the effect that his wife Mst. Anoara Bibi had gone to reside in her father''s house at village Gobindapur. During her stay there, the Appellant Nazrul Islam, a neighbour of her father''s village made some illicit proposal to her, which she refused to accept. Out of grudge on account of such refusal, the said Nazrul Islam accompanied by the other two convicts namely Md. Manirul Islam and Md. Anar Ali, also of village Gobindapur, on 25.08.06 at about 9 p.m. with the common object of teaching her a lesson, threw acid on her face, when she was lying on a cot in the verandah. While she started to clamour, the inmates of the house of the complainant reached there and took her to Barasat Sadar Hospital for treatment. Because of such throwing of acid upon the victim Anoara, she sustained severe injuries and the right portion of her face was severely burnt.
2. On the basis of the above allegations, Deganga P.S. case No. 134/06 dated 28.08.06 u/s. 326/307/34 of I.P.C. was started against the aforesaid three accused persons Nazrul Islam. Md. Manirul Islam and Md. Anar Ali.
3. All those three accused were thereafter tried and convicted by the Trial Court of the Offences under sections 326/307/34 of the IPC. They were sentenced to suffer Rigorous Imprisonment for Seven (7) years each for the offences under sections 326 and 307 of the IPC separately, apart from being directed to pay a fine of Rs. 10,000/- each and 5,000/- each for the aforesaid offences, in default of which payments they were sentenced to suffer further Rigorous Imprisonment for One (1) year and Six (6) months respectively.
4. This Court has heard the extensive submissions of Ld. Advocates for the Appellants, particularly the Appellant No. 2 ''Md. Monirul Islam'', Ld. Advocate for the said Appellant has drawn attention of this Court to no less than Eleven (11) aspects in the matter, which according to him, constitute major contradictions and infirmities in the Prosecution case, and consequently the conviction of his client, who was allegedly implicated falsely in the case just to harass him unnecessarily, is therefore liable to be quashed.
5. Before proceeding to consider the merits in such contentions, this Court is inclined to first take note of those Eleven (11) aspects mentioned in the Written Arguments filed behalf of the Appellant No. 2 on 29.11.2013, which are reproduced as follows:--
(I) As per statement of the P.W.-1, Nazrul Islam, the Appellant No. 1 alone used to give ugly proposal to his wife Anoara Bibi (Victim). But Anoara Bibi (as P.W-2) implicated three Appellants.
(II) The FIR was lodged on 28.08.2006 by the P.W-1 but the incident occurred on 25.08.2006. The Delay in filing the FIR is not properly explained.
(III) It appears that they (the three Appellants) threw acid with help of a coconut shell and said acid sprinkled on the face of the P.W-2 (victim). But how can it be possible to throw one coconut shell by 3 Appellants?
(IV) According to the statement of the husband of the Victim (PW-1) the Appellant No. 2, Manirul Islam had accompanied him, when he went to the hospital to admit the victim.
(V) That the incident had occurred on 25.08.2006 at 9 P.M. But there is contradiction that the PW-2 (victim) stated in her deposition that there was electricity in that village. In view of that she saw the accused persons. On the other hand others deposed that there was moon light and D.W.-2 also stated that there was no electricity in the said village.
(VI) There is no eye witness in the said incident including the victim herself.
(VII) As per statement of PW-1 (husband of the victim) that when he went there (to the P.O.) he found that 100 to 150 villagers were present. But those villagers who are spot witness and by-standers were not examined in this case. This caused an adverse inference on the evidence of others.
(VIII) Out of the eight witnesses named in the Charge Sheet only two, namely Abdul Rashid and Samir Das were examined. On the other hand six witnesses from out-side, whose names did not appear in the Charge-sheet were examined, which is gross violation of the statutory provisions. That amounts to carrying out extra judicial activity.
(IX) The Recorded statement of the victim on 16.10.2006 u/s. 164 Cr.P.C. corroborates the claim that the Appellant No. 2, Manirul Islam had taken her to hospital.
(X) As per statement of the P.W-6, Dr. Subhash Chandra Haider, the injury of P.W-2 is not fatal as examined; That the patient had a history of burn injury. On the other hand it appears that Police authority had not sent the PW-2 (victim) to the Doctor, PW-6, since he is an expert of E.N.T. The Doctor who neither exhibited the original record "but identified the copies thereof, whether it is Secondary Evidence....Injury report is defective because of non mentioning the name of the injured person.
(XI) As per statement of the P.W-7 doctor that the injuries is not fatal. The Doctor deposed that the patient was operated on 01.10.2007 and she was discharged on 15.10.2007 but in discharge certificate the date of admission was not mentioned.
6. The relative merits of each of the aforesaid 11 points urged on behalf of the Appellant No. 2 are now taken up for consideration in the succeeding paragraphs.
7. Item No. (I)--On perusal of the original complaint lodged by P.W-1 (Md. Hakim Biswas), husband of the victim in the P.S (Exhibit-1) it is verified that the allegation of making indecent/illicit proposals to the victim Anoara Bibi has been attributed to accused Nazural Islam alone, and not to the other two appellants. To that extent the submission covered in this first item is found to be correct. But that in itself cannot be treated as being sufficient enough to hold that the other two convicts were not involved in the alleged occurrence of throwing acid upon the victim at night, which act is altogether different and distinct from the allegations of her being approached with illicit proposals earlier, whether by just one accused or more. The fact of the matter is that even without stating that the accused Md. Manirul Islam and Md. Anar Ali have not been alleged to have made any indecent proposal to the victim in the F.I.R., still they have been specifically named as being involved in the subsequent occurrence of throwing acid upon her along with Nazural Islam. Furthermore, any deficiency in this regard as contained in the F.I.R. lodged by the victim''s husband is more than adequately covered up by the deposition of the victim Anoara Bibi as P.W-2 herself since she has stated in her evidence "...Those 3 accused persons (earlier named and identified in Court) used to give me ugly proposal. I did not agree with their proposal...."
8. Item No. (II)--Admittedly the F.I.R. was lodged by the victim''s husband in the night of 28.08.2006 i.e. three days after the occurrence which took place on the night of 25.08.2006. But the complainant has specifically explained this delay by stating in his deposition as P.W-1, "...I lodged the said complaint on 28.08.2006, since my wife was undergoing treatment and her condition was so serious that I had to take care of her treatment, as such a few days delay was committed in lodging the said F.I.R....." Besides, it is also clear from the evidence that immediately after acid was thrown on the victim at night, she cried out after which members of her family rushed and took her to the Barasat Sadar Hospital where she was admitted and administered treatment over the following several days. In the given circumstances, the delay of three days in the lodging to the F.I.R. would not appear to be very and unreasonable since undoubtedly the victim had already been admitted into the Hospital where she remained for several days. The severe burn injuries sustained by her particularly on her face would also indicate a very natural difficulty in narrating the occurrence to other persons including her own husband, since she certainly could not have been in a position to talk naturally for quite sometime after the occurrence.
9. Item No. (III)--It is correct that according to the prosecution case, acid with the help of a coconut shell was sprinkled on the face of the P.W.2. From the record it is seen that such coconut shell was apparently produced before the Trial Court and marked Mat. Exhibit-II on 30.08.2008. It is certainly true that sprinkling of acid from one single coconut shell cannot be easily done by three persons together. But such physical inability by itself does not automatically lead to any conclusion that the other two (2) accused persons were also not present along with whoever might have been the sole culprit involved in the physical act of sprinkling acid.
10. Item Nos. (IV. & IX)--These two items are being taken up for consideration together since they both seek to draw attention to the fact that the Appellant Manirul Islam had accompanied the Victim and her husband to the Hospital shortly after the occurrence, thereby implying that it is most unlikely that he could have been personally involved.
It is correct that in his cross-examination, the victim''s husband i.e. the complainant Md. Hakim Biswas as P.W-1 has admitted, "...while I went to Hospital Omer Ali, one of the accused Md. Manirul Islam, my mother-in-law were with us at that time...." To that extent there is certainly some force in the argument made on behalf of the said appellant Manirul Islam, that the question of his being involved in the occurrence is preposterous, since in the normal course he ought to have fled away from tie P.O. instead of accompanying the victim and her husband to the Hospital in order to have her admitted. But in this regard it is noteworthy that on 16.10.2006 the victim Anoara Bibi had given a statement before Shri Ratan Kumar Gupta, Ld, Judicial Magistrate 1st Class, First Court at Barasat. The Magistrate gave evidence as P.W-5 from the Prosecution side, and formally proved the Victim''s statement recorded by him u/s 164(5) of the Cr.P.C. which was accordingly marked Exhibit-3 in the case. It is noteworthy that in the statement the victim had stated, "...They (i.e. the appellants) poured acid on my body breaking the thatch. Suddenly my eyes opened and I saw. When local people gathered, they again joint gathering to save themselves. Thereafter they fled away therefrom...."
From this statement of the victim which is on record in Exhibit-3, there is at least some semblance of an explanation indicating how or why the Appellant No. 2 Manirul Islam might have chosen to accompany the victim and her husband along with others to the Hospital, after having been involved in the occurrence as alleged. Of course, this rather Preemptive type of an explanation does not necessarily make the Prosecution case Fool-proof, especially against the Appellant No. 2 Md. Manirul Islam, who by the specific admission of the complainant (P.W.1), had accompanied him and the victim to Hospital shortly after the occurrence.
But the further implications and ramifications of this admitted fact would be further considered at an appropriate stage later in this Judgment.
11. Item No. (V)--The bottom-line is that the victim claims to have seen the accused persons personally as being the culprits involved in the occurrence. She had stated in her deposition as P.W-2, "...It was a moonlit night. There is electricity in our village. At the time of incident on that day, there was electricity and lights were burning...." The Appellants'' side now seeks to discredit these statements of the victim by asserting that it has transpired from the evidence of D.W.-2 that there was no electricity in the said village. This assertion is however altogether incorrect since it is verified from the entire deposition of D.W.-2, namely, Shri Motaleb Golder that he did not say anything whatsoever regarding the existence of a moonlit night or electricity in the village, either in his examination in-chief or even the cross-examination itself. In fact the entire text of this witnesses deposition as D.W.-2 happens to be-
...About a year ago while I was taking meal at that time I heard a hue and cry and went to the house of injured Anoara Bibi and found that she was surrounded by villagers and she had injuries, on seeing the same I returned to home.
XX Exam:--I came to know from the people assembled there that Anoara sustained injury due to throwing of acid upon her who is a victim in this case.
It is a fact that the incident about one and half years ago. The incident took place during the night at 9 p.m....
On the other hand, there is ample material available to indicate that not only it was moonlit night at the relevant time, but that there was electricity in the village as well. The Complainant (P.W-1) in his Cross- Examination has stated, "...It was a moonlit night." In addition the P.W.3, namely Abdul Rashid in his cross-examination has also stated,"...On the date of incident it was moon lit night. In area, there is electricity and during the time of incident electricity was also there...." As such there is clearly no such contradiction whatsoever in the prosecution evidence as might give raise to the suggestion that the victim could not have been able to see or identify the culprits who throw acid upon her, due to of dearth of light at the relevant time.
12. Item No. (VI)--Again, admittedly there is no other direct eyewitness to the incident, barring the victim herself. It is unclear what the Appellants'' side means by a stating, "There is no eye witness to the incident including the victim herself." But it needs to be remembered that the occurrence took place at night time when the victim was stated to be sleeping in the verandah of her father''s house. It is only natural that no one else ought to be present near the P.O. at that time when it was night, and certainly the culprits would not have chosen to willfully go to the P.O. within the sight or vision of other persons or witnesses, before throwing acid on the victim. So the assertion that there is no other eye-witness to the incident apart from the victim herself does not help the appellants to any substantial extent.
13. Item No. (VII)--It is well settled that the outcome of any Trial cannot be dependent merely on the number of witnesses examined to support the Prosecution case. What needs to be considered is the quality, and not simply the number of depositions coming on record. Admittedly none of the villagers had actually seen the incident involving throwing of acid on the victims face directly at night time. So the omission to cite all or many of the 100 to 150 villagers who allegedly gathered at the P.O. later on is clearly not a sufficient reason automatically detract from the credibility of the prosecution case.
14. Item No. (VIII)--This point urged on behalf of the Appellant''s side is just not in conformity with the position on Record. It has been asserted that only two (2) witnesses, namely, Abdul Rashid and Samir Das, out of the Eight (8) persons cited as Witnesses in the Charge Sheet have been examined from the Prosecution side, while the other six witnesses are those whose names had not been mentioned in the C.S. But it has been verified from the Trial Court''s record that even P.W-3 namely, A.S.I. Siburam Mondal was also named as a witness (Serial No. 6) in the charge-sheet. Incidentally S.I. Samir Das happens to be none other than the I.O. himself who had submitted the Charge-Sheet. Of the other unexamined witnesses originally cited, as many as four (4) were only Police personnel namely Constable 1078 Krishnapado Mazumdar, Home Guard 137 Moula Bux Mondal, Constable 1793 Baltu Das, and Home Guard 729 Haru Dutta, all of the Deganga P.S who undoubtedly could not have had any personal knowledge of the occurrence. So their non examination cannot be said to be fatal to the prosecution case. On the other hand P.Ws.1 and 2 are the de-facto complainant Md. Hakim Biswas and his victim wife Anwara Bibi respectively. Their names have been specifically mentioned in the relevant columns 9(A) and 17 of the said charge-sheet. They are undoubtedly the most vital witnesses from the Prosecution side, and the mere clerical error by not specifically mentioning their names in the Witnesses'' Column No. 14 of the charge-sheet can by no means be a reason to hold that they are "outsider" witnesses or that taking their evidence in the case amounts to "carrying but any extra judicial activity", as urged on behalf of the appellant No. 2. It may be further observed that the remaining three witnesses deposing from the Prosecution side are all official witnesses being the Ld. Judicial Magistrate Shri Ratan Kumar Gupta (P.W-5), and the Doctors who treated the victim after the occurrence namely, Dr. Subhas Chandra Haider (P.W-6), and Dr. Rup Narayan Bhattacharjee (P.W-7).
15. Items Nos. (X & XI)--These two items are also being taken up for consideration together, since they both touch and upon the alleged infirmities in the medical evidence led from the prosecution side.
This Court has carefully scanned the entire deposition of P.W-6 Dr. Subhas Chandra Haider, the ENT expert who treated the victim (P.W-2) as she had injuries on her ear, throat and nose. It is seen that the said Doctor (P.W-6) has made no statement anywhere to the effect that the injury of P.W-2 was not fatal on examination. On the contrary the statement of the next witness namely, Dr. Rup Narayan Bhattacharjee (P.W-7) who in his capacity as an Assistant Professor in the Department of Plastic Surgery had treated the victim, did actually state in his deposition, "..The patient had the fatal injuries which could have cause death to her." The Court is therefore unable to comprehend exactly what is sought to be emphasized in Item No. 10 in the light of non-existence of any statement by P.W-6 in relation to the nature of the victim''s injuries.
The Appellants'' side has also chosen to discredit the Injury Reports by emphasizing that the original records were not produced and since the name of the victim has not been mentioned in the Injury Reports, so the same is defective. Again, in Item No. 11 it has been emphasized that the date of the victim''s admission was not mentioned in her Discharge Certificate. But this contention is found to be unconvincing on seeing the composite Medical documents comprising of the Daily Clinical Notes and Bed-Head Ticket marked Exhibit-4 in the case. The same clearly go to show that the victim was admitted on 25.08.2006. So any omission regarding her date of original admission in her Discharge Certificate issued later on would clearly be covered up from the contents of Exhibit-4. Suffice it to say, the various Medical documents led from the Prosecution, side being the Victim''s OPD Ticket (Exhibit-5), the Discharge Certificate (Exhibit-6), the Second OPD Ticket (Exhibit-7) and the subsequent two (2) OPD Certificates issued by the Plastic Surgery Department of the R.G. Kar Medical College 8b Hospital (Exhibits 8 & 9) go on to establish with convincing consistency the entire medical history of the victim starting from the date of occurrence itself.
16. On the face of it therefore, the points urged on behalf of the appellants would not appear tenable for the purpose of holding that their conviction for the offences under sections 307/302/34 of the IPC is altogether wrong or unsustainable. The Court derives this conclusion from the settled law on the point that the victim/injured witness in any given occurrence must have to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. In the case of "State of U.P. v. Naresh & Ors." (CRIMINAL APPEAL No. 674 of 2006, On 8 March, 2011) the Apex Court has held, "The evidence of an injured witness must be given due weightage being a stamped witness, 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 [Vide:
17. In the present case where the victim lady has virtually suffered major disfiguration of her face for the rest of her life, it is similarly hard to belief that she would falsely implicate anyone else and shielded the actual offender(s).
18. From the cross-examination of the victim (P.W.2) and the complainant (P.W.1), somewhat shocking suggestions are seen to have been made to them on behalf of the Appellants Manirual Islam and Md. Anar Ali. It was put to them that Victim''s husband i.e. the complainant stays separate with his first wife Romicha Bibi in village Arjullapur; that the victim had a strained relation with the said Romicha Bibi; that she was threatened by Romicha Bibi that some measure would be taken to liquidate her; that under the influence of the said Romicha Bibi (his first wife) the Victim''s husband i.e. the complainant Md. Hakim Biswas himself threw acid of her face and other parts of the body; and that, she falsely deposed against the accused persons in order to hold them guilty. Of course, all such suggestions had been denied by the victim (P.W.2) and the complainant (P.W.1), in their cross-examinations. But even academically accepting such outlandish suggestions to be of some credibility, the Court is at a lost to understand why the victim would have shielded her husband and falsely named the appellants if he had actually thrown acid on her.
19. Therefore the proposition that neither of the appellants were actually involved in the occurrence or that it was actually the complainant Md. Hakim Biswas himself who under, the alleged influence of his first wife Romicha Bibi had actual thrown/sprinkled acid on the victim Anoara Bibi who admittedly was also his wife, is found to be altogether unconvincing. Nevertheless, as earlier noted in Para No. 11 above, there are certain finer aspects and ramifications in relation to the Appellant Md. Manirul Islam specifically, which do put him at a somewhat different pedestal from the other two, particularly the first accused Nazrul Islam.
20. As already taken note of earlier, neither of the other two Appellants apart from Nazrul Islam had been named in the original F.I.R. as the persons who also used to give ugly/indecent proposals to the victim. Furthermore, it has also transpired from the admission of the complainant (P.W-1) that the Appellant Manirul Islam had accompanied him when the victim was taken to the Barasat Sadar Hospital after the occurrence. Of course, in a rather general manner, the victim in her earlier statement u/s 164 Cr.P.C. before the Ld. Judicial Magistrate had mentioned that after committing the offences, the accused persons had mingled themselves in the crowd that gathered, in order to save themselves. But there is no statement whatsoever of any witness made directly in the Trial Court later on to indicate that any of the other two convicts apart from the Appellant Md. Manirul Islam was present near the P.O. or had accompanied the victim or the complainant when she was taken to the Hospital for treatment. In such circumstances, a serious doubt arises as to whether this particular Appellant could have been actually involved in the occurrence at all. The Court takes this view since it has transpired from another statement given by the complainant (P.W.1) in his cross-examination that he had taken his wife to Hospital in a ''TATA SUMO'' vehicle. In this view of the matter it is certainly inconceivable that had the accused Manirul Islam been actually involved in the occurrence and had been seen by the Victim, then he would have had the temerity to get so close to her and her husband immediately thereafter, as to have accompanied them to the Hospital for treatment in the same private vehicle in which only two other persons namely, Md. Anar Ali and the complainant mother-in-law were present, apart from the driver. Therefore even assuming that the culpability of this particular Appellant in the occurrence might not be altogether ruled out, still he would appear to be placed on an entirely different pedestal in comparison to the other two Convicts.
21. It is a matter of record that all three appellants have been found guilty of the offences under sections 307 and 326/34 of the IPC, and have been awarded Rigorous Imprisonment terms of Seven (7) years for each of the two substantive Offences apart from fine. They have already served out their respective sentences for almost Five years after having been finally convicted on 15-1-2009.
22. So in the opinion of this Court, the Appellant No. 2 Md. Manirul Islam, who stands on a slightly different footing from the other two convicts, may be granted some remission in the matter. As such, while upholding his conviction, his sentence may be reduced to the term already under gone by him which is almost Five years by now, and he may also be exempted from payment of the Fine imposed. The other two Appellants shall serve out their Full Sentences as awarded by the learned Trial Court, and rest of their sentences for payment of fines shall also be sustained.
23. With the above observations the instant appeal is disposed of by reducing the sentence of Appellant No. 2 Manirul Islam for the period already under gone by him, and by affirming the rest of the Judgment of Conviction and Sentencing of the three appellants as passed by the learned Court below. A copy of this Judgment along with the L.C.R. be sent to the learned Trial Court for its information and appropriate action.
