Allowed

Abbu @ Sharaft Ali v. State

Rajasthan HC15 Oct 2024CRLA/113/1989

Case brief

AI extract

What is this about?

The High Court allowed the appeal, quashing the trial court's conviction for using acid under Section 326 IPC. The Court held the prosecution failed to prove the case beyond reasonable doubt due to hostile witnesses, a planted witness, uncorroborated injury testimony, and serious flaws in the investigation and evidence seizure chain.

What did the court decide?

Impugned judgement dated 29.03.1989 quashed; appellant acquitted of charges under Section 326 IPC; bail bonds discharged and appellant set at liberty.

Abbu @ Sharaft Ali Vs State — Murder and Culpable Homicide | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal No. 113/1989

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Abbu @ Sharaft Ali, son of Rahmat Ali, resident of Jhalawar. (At present in District Jail, Jhalawar)

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----Appellant

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Versus

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The State of Rajasthan

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----Respondent

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For Appellant(s) : Shri Rinesh Gupta with Shri Saurabh Pratap Singh Shri Gaurav Sharma Shri Sarwat Alam For Respondent(s) : Shri Naresh Gupta, P.P.

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

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Judgment / Order

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Judgement reserved on : : 20/09/2024 Judgement pronounced on : : 15/10/2024

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This criminal appeal is directed against the judgement dated 29.03.1989 passed by learned Additional Sessions Judge, Jhalawar (for brevity-the learned trial court') in Sessions Case No.19/87 whereby, while convicting the accused-appellant (for brevity-the appellant') under Section 326 IPC, he has been sentenced as under:

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"Section 326 IPC : 5 years rigorous imprisonment and Rs.2000 fine, in default whereof; six months rigorous imprisonment."

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The relevant facts in brief are that on the parcha bayan (Ex.P1) of the injured Prakash Chand Chawadiya dated 21.9.1986, an FIR No.17/1986 (Ex.P14) came to be registered at Police Station Jhalawar against the appellant and co-accused persons

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namely; Abrar and Salim under Section 307/34 IPC. It was alleged in the FIR that on that very day at about 6 pm, when he was going from New Cloth Market to his home on a bicycle, in front of Narayan Hotel, the appellant threw acid upon him resulting into burn injuries. After investigation, charge sheet was filed against the appellant and the co-accused persons. Charge under Section 307 IPC was framed against the appellant whereas, charge under Section 307 read with Section 34 IPC was framed against the coaccused. The accused pleaded not guilty and demanded trial.

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After conducting trial, while, co-accused persons were acquitted from the charge under Section 307/34 IPC, acquitting the appellant under Section 307 IPC, he has been convicted under Section 326 IPC and sentenced as stated hereinabove by the learned trial court vide judgement dated 29.3.1989.

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Assailing the judgement impugned dated 29.3.1989, Shri Rinesh Gupta, learned counsel for the appellant submits that the so called eye witnesses to the incident, i.e., S/Shri Ganesh Lal (PW-3) and Tilak Raj (PW-5) have turned hostile and have not supported the prosecution case. He submits that the learned trial court erred in relying upon the testimony of Shri Rajendra Shanker Sharma (PW-2) who was a planted witness ignoring that his testimony did not inspire confidence as to its genuineness. Learned counsel further submits that the prosecution has come out with a false and concocted story inasmuch as they have suppressed the true genesis of the case. Inviting attention of this Court towards the FIR (Ex.P14), he submits that it contains an endorsement that the first information was received on that day at about 8.15 pm which was recorded at Sr. No.808 in the daily diary

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(rojnamcha). Learned counsel asserts that the prosecution has neither produced the daily diary to reflect in what manner they received the information at about 8.15 pm nor, it could explain that if it received the information for the first time at about 8.15 pm, how the statement of the victim came to be recorded at about 7.30 pm by a police officer? He further submits that in the FIR, it was alleged that acid was thrown by the appellant from a jug whereas, a mug has been recovered used allegedly in commission of the offence. Referring to the cross-examination of the injured (PW-1), learned counsel submits that he has categorically admitted that the recovered mug is not the jug which was used in commission of the offence.

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Advancing his submissions, Shri Rinesh contends that the prosecution has not been able to prove the site plan (Ex.P3). He submits that while, one of the attesting witnesses to it namely Shri Ganesh Lal (PW-3) has turned hostile, the prosecution has failed to examine the remaining attesting witness Shri Chandu Lal. Learned counsel further submits that the investigation in the present case was tainted which is reflected from the fact that Ex.P16-copy of the malkhana register produced by the prosecution reflects entry of articles received on different dates i.e., 22.01.1986, 28.01.1986 and 24.05.1986 on the same page without any serial number. Shri Gupta submits that the learned trial Court erred in recording a finding of his conviction based on mis-appreciation of evidence, ignoring and overlooking the material evidence in his favour and on assumptions and presumptions. He, therefore, prays that the appeal be allowed, the judgement impugned dated 29.03.1989 be quashed and set aside

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and he be acquitted from the charge levelled against him. He, in support of his submissions, relies upon following judgements:-

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(i) Mahmood Vs. State of UP: AIR 1976 SC 69

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(ii) Sher Singh Vs. State of Rajasthan: 1987 RLW (Raj) 454 Learned Public Prosecutor, opposing the appeal, supported the impugned judgement and prayed for dismissal of the appeal. Heard. Considered.

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From the evidence on record, it is established that the injured Prakash Chand has received grievous burn injuries from the sulphuric acid. The moot question for consideration of this Court is as to whether the prosecution has been able to establish beyond reasonable doubt that the appellant is guilty of acid attack?

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While, the injured as PW-1 has levelled allegation against the appellant of throwing acid upon him from a plastic jug, the allegation is not supported and corroborated by the eye witnesses. The injured has reflected presence of S/Shri Rajendra Shanker @ Tinnu and Tilak Raj at the time of incident. While, Shri Tilak Raj (PW-5) has turned hostile and has not supported the prosecution story, from the testimony of Shri Rajendra Shanker Sharma (PW2), it is apparent that he is a planted witness and is not trustworthy at all. Although, he has stated in his examination-inchief that the Ex.P2- the seizure memo of the cloths worn by the injured at the time of incident, bears his signature at "A to B"; however, the Ex.P2 does not reflect him to be an attesting witness to it. There are two attesting witnesses to the Ex.P2, namely S/Shri Rajendra Singh and Rajesh Sharma S/o Shri Janki Lal Sharma whereas, the PW-2 is Rajendra Shanker Sharma S/o Shri

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Yogendra Shanker Sharma. In view thereof, it is apparent that the PW-2 is falsely claiming himself to be an attesting witness to the seizure memo and is not a creditworthy witness. There is another important aspect of the matter. While, the injured says in his cross-examination that S/Shri Tilak Raj and Rajendra Shanker Sharma remained with him in the hospital during the night of the date of incident, Shri Rajendra Shanker as PW-2 has stated in his cross-examination that he and Tilak Raj, after remaining for about 10-15 minutes at the place of incident, left for their home and after dinner, he and Tilak Raj were called in the police station and Shri Tilak Raj (PW-5) is completely silent in his deposition where was he after the incident. The other prosecution witnesses, who were present in the vicinity of the place of incident, have also not supported the prosecution story of the acid attack by the appellant. Both, Shri Ganesh Lal (PW-3), whose shop is situated adjacent to the place of incident as is shown in the site plan (Ex.P3) as also Shri Om Prakash (PW-8) who, as per the deposition of the injured Prakash Chand, took him to hospital, have turned hostile. From the aforesaid prosecution evidence, it is apparent that except the injured himself, none has alleged that the appellant attacked him with acid and, therefore, his deposition is required to be examined very carefully. The injured has deposed as PW-1 that he remained hospitalized at Jhalawar from the date of incident till 29th and thereafter, he was referred to Hospital at Jaipur where he remained hospitalized for a period of about 11 days. However, the prosecution has failed to lead any evidence to substantiate the aforesaid averments. He further states that cloths worn by him at the time of incident were seized by the police; but,

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as per Ex.P6, his injury report, the same were seized and sealed by the medical jurist and the jerkin which, as per Shri Om Prakash (PW-8), was thrown by the injured at the place of incident, was handed over by his mother to the police station on 22.01.1986 and the prosecution is completely silent as to how the jerkin reached the hands of injured's mother.

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About motive, the injured has stated that since, he has deposed against Anwar, a friend of the appellant in a criminal case with allegation of inflicting stab wound to his friend Rajendra, the appellant had animosity with him resulting into acid attack. He avers in his cross-examination about this incident being four years old. The remoteness of the animosity qua relationship of the persons involved in the incident as well as qua the time raises a reasonable suspicion about it being the motive behind the alleged incident. At the cost of repetition it is worthwhile to mention here that while, one of the eye witnesses named by the injured has turned hostile, the another eye witness has been found to be a planted witness. In these circumstances, it was not safe to rely upon injured's sole testimony to return a finding of conviction of the appellant.

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There are some other important aspects of the matter which require consideration. As per the FIR (Ex.P14), the information about the incident for the first time was received in the police station on the date of its occurrence at about 8.15 pm which was recorded in the daily diary at Sr.No.808. However, neither the relevant daily diary was produced nor, any evidence was led by the prosecution to establish that the information for the first time was received in the police station at the time mentioned in the FIR

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and the manner in which it was received. Further, the FIR has been lodged based on the parcha bayan (Ex.P1) of the injured which was recorded by Shri Ratti Ram (PW-11) at about 7.30 pm. While, Shri Ratti Ram deposed that on 21.01.1986, the SHO of the Police Station Jhalawar received a telephonic information about the incident whereupon, he was instructed by the SHO to proceed to the hospital, the then SHO-Shri Vijay Singh (PW-7) has not uttered a single word in his deposition about receipt of the telephonic information of the incident and has remained silent as to its source. As per Dr. Rameshwar Vijay (PW-4), he has informed the SHO Jhalawar on suspicion of commission of offence with the injured vide Ex.P9 which is timed 7 pm; however, the prosecution is completely silent either as to the manner it was sent to the police station or, the time when it was received there or, whether it was ever sent/received in the police station. In view of the aforesaid evidence, it is apparent that the prosecution has suppressed the true genesis of the case.

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Further, the cloths worn by the injured at the time of incident were seized and sealed by the medical jurist on 21.01.1986 vide Ex.P6. The jerkin worn by the injured at the time of incident was seized and sealed on 22.01.1986 vide Ex.P2. On the same date, the acid stains from the place of incident were collected and sealed vide Ex.P4. The plastic container used allegedly by the appellant in commission of the offence was recovered and sealed on 24.5.1986 vide Ex.P10. Thus, it is apparent that the various articles were seized and sealed on different dates; but, as per the malkhana register (Ex.P16), these were deposited in the malkhana with their entry on the same page without any serial no. assigned

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to the entries. As per statement of malkhana in-charge Shri Ram Prasad (PW-9), three packets were deposited with him on 22.01.1986; two packets on 28.01.1986 and one packet on 25.05.1986. In view thereof, entry of the seized articles on different dates spreading from 22.01.1986 to 25.05.1986 on the one and same page raises a serious doubt about the veracity of the seizure, seal being intact and their safe custody from the date of seizure till the same were sent for FSL Examination. Further, a perusal of the Ex.P16 from naked eye establishes beyond a pale of doubt that all the entries have been made on one date in the same handwriting with the same stroke of pen.

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Moreover, the material on record does not reveal that the seal impressions with which the packets sent for FSL examination were sealed, were forwarded to the FSL. In the case of Sher Singh (supra), a division bench of this Court has held as under:

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"36. The evidence relating to the recovery of the weapons and their evidentiary value has been rightly not taken into account in assessing the guilt of the appellants. The learned Sessions Judge was correct that since the seal impression, with which the packets of the weapons are sealed, was not forwarded to the Forensic Science Laboratory, the findings of the Forensic Science Laboratory mentioned in report Ex.P31 could not be read against the appellants"

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Further, in the case of Mahmood (supra), their Lordships have held as under:

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"15. Further, the investigator did not take all the necessary precaution which could be taken to eliminate the possibility of fabrication of this evidence, or to dispel suspicion as to its genuineness. Admittedly, he sealed the box with his own seal which thereafter remained with him throughout. He did not

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take the signatures of the witnesses on the parcel containing the gandasa. He did not after sealing the parcel entrust his seal to the Sarpanch or any other respectable of the village. According to the prosecution the finger-prints found on the gandasa could possibly be blood-prints and that the blade of the gandasa was all smeared with human blood. But this gandasa was never sent to the Chemical Examiner or the Serologist. No explanation of the same is forthcoming. This being the case, the contention of Mr. R K. Garg at the bar, that the gandasa, Ex. 1, or smear of the alleged blood on it was not sent to the Chemical Examiner for fear of the fabrication being detected and exposed, cannot be rejected outright."

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A perusal of the judgement impugned dated 29.3.1989 does not reveal consideration of the aforesaid aspects of the matter which have important bearing on the question of involvement of the appellant in the alleged offence in the backdrop of the aforesaid precedential law.

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Further, as per Shri Laxmi Narayan, LC (PW-6), a Constable posted in the Police Station Jhalawar, he received six packets from the police station and brought these to the SP Office and after preparation of the requisite papers in the SP Office, deposited the same in the FSL, Jaipur. However, as per Ex.P16, the malkhana register and the deposition of Ram Prasad (PW-9)-the Malkhana Incharge, the packets were received by Shri Laxmi Narayan on 19.06.1986 whereas, the SP letter to the FSL Jaipur (Ex.P13) is dated 18.06.1986, i.e., the paper in the SP Office Jhalawar was prepared prior to receipt of the articles by Shri Laxmi Narayan, contrary to his deposition as PW6.

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There is one more important aspect of the matter. While, the incident is dated 21.1.1986, the appellant was arrested on 14.5.1986, information under Section 27 of the Evidence Act was

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given on 20.5.1986 (Ex.P19), the plastic container used in commission of offence was recovered on 24.5.1986 which, upon chemical examination by the FSL, gave positive test for the presence of sulphuric acid whereas, the injured (PW1) himself has stated very emphatically in his cross examination that the police has recovered article-2, a mug in place of real jug which was not recovered from the accused. Contrary to the aforesaid prosecution story, Shri Tilak Raj (PW5) deposes that the jug was recovered by the police from a place near to Narayan Hotel about 5-7 days after the date of incident vide Ex.P10 which bears his signatures at "A to B". In the backdrop of the aforesaid prosecution evidence, presence of the sulphuric acid in the jug recovered allegedly at the instance of the appellant, which, even as per the injured himself, was not used in commission of offence, raises a serious doubt about veracity of the prosecution case.

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In the aforesaid circumstances, it is apparent that the investigation in the instant case was conducted in most perfunctory manner and was botched up.

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Further, while recording the conviction of the appellant, the suggestion made to the injured during the course of his cross examination as to presence of the appellant and other persons at the time of incident, has been given undue importance by the learned trial court ignoring and overlooking that it was not the defence case that the appellant acted in exercise of his right of private defence. Their Lordships have, in the case of Balu Sudam Khalde & Anr. vs. State of Maharashtra-AIR 2023 SC 1736, held as under:

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"40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond

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reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case."

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Since, in the instant case, as already observed, except the deposition of the injured himself, there is no other cogent evidence against appellant connecting him with the alleged offence and as discussed hereinabove, his deposition is not much creditworthy. In view of this, it was not safe to record conviction of the appellant based on suggestion made to the injured as PW1 during his cross examination suggesting presence of the accused

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at the place of incident especially, in absence of it being a case of version/cross version or the plea of private defence in the backdrop of the aforesaid precedential law.

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Further, while recording the finding of conviction, the learned trial court has erred in drawing an inference, relying upon deposition of Shri Tilak Raj (PW5) wherein, he has stated that the injured was lying on the ground and was crying "Abbu-Abbu", to the effect that the appellant has thrown acid upon the victim ignoring and overlooking that in his further cross examination, he has admitted that this averment is absent from his statement recorded under Section 161 Cr.P.C. (Ex.P11). This material omission raises a serious doubt about the veracity of this statement.

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The learned trial court has also relied upon the burn marks found on the person of the appellant at the time of his arrest to connect him with the offence. It was held that as per arrest memo (Ex.P17), there were old burn marks on his right hand which were on account of acid attack by him on the injured ignoring and overlooking that as per Shri Umeda Singh (PW10), the SHO Police Station Jhalawar, who had effected arrest of the appellant, he had only guessed the burn marks to be from the incident. The learned trial court further failed to appreciate that Dr. Rameshwar Vijay (PW12), who after examination of the appellant has prepared the report (Ex.P18), did not say that these marks were on account of acid burn. In view of the aforesaid evidence, the presumption drawn by the learned trial court as to the burn marks being on account of acid, is not sustainable. In this regard, the learned trial court has further failed to appreciate that the victim has also

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admitted during his cross examination that at the time of incident, i.e., 7-7.30 PM, there was no electricity for about 2-5 minutes. It is noteworthy that the incident is of January, i.e, the peak winter season when, it gets quite dark by 7-7.30 PM. In view thereof, a possibility of mistaken identity cannot be ruled out.

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Upshot of the aforesaid discussion is that in the considered opinion of this Court, the prosecution has not been able to establish beyond reasonable doubt that the appellant was involved in commission of offence and is guilty of acid attack.

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Resultantly, this criminal appeal is allowed. The impugned judgement dated 29.03.1989 is quashed and set aside and the appellant is acquitted of the charges for the offence under Section 326 of IPC. He is on bail, therefore, his bail bonds are discharged. He need not surrender and is set at liberty forthwith.

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In view of the provisions of Section 481 BNSS, appellant is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount before the Registrar (Judicial) of this Court which shall be effective for a period of six months undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

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(MAHENDAR KUMAR GOYAL),J

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RAVI SHARMA /C1

Abbu @ Sharaft Ali v. State

Case brief

What is this about?

What did the court decide?

Abbu @ Sharaft Ali v. State

Case brief

What is this about?

What did the court decide?

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