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Vishnu Narayan Shivpuri vs State Of U.P. on 16 August, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR Reserved.

CRIMINAL APPEAL No. – 1248 of 2014

Vishnu Narayan Shivpuri, son of Late Pratap Narayan Shivpuri, resident of 6/3, Papermil Colony, Police Station Mahanagar, District Lucknow.

………………. Appellant/ Accused (in Jail).

Versus

State of U.P. …………………. Opposite Party

Counsel for Appellant :- Indra Pratap Singh,Avdhesh Kumar Singh Yadav,Gaurav Saxena,Juhi Saxena,Lalla Chauhan,Neeraj Kumar,Rajni Saxena,Ravindra Nath Pandey,Rishi Saxena,Seena Saxena,Shobhit Kant

Counsel for Respondent :- Govt. Advocate,Rajiu Raman Srivastava

Hon’ble Anil Kumar Srivastava-II,J.

1. Instant appeal has arisen against the judgment and order dated 25.8.2014, passed by learned Additional Sessions Judge/ Special Judge (Anti Corruption), Lucknow in Session Trial No.214 of 2014 arising out of the Case Crime No.293 of 2013, Police Station Mahanagar, District Lucknow whereby the learned trial court was convicted and sentenced the accused-appellant under Section 326B IPC for seven years rigorous imprisonment and fine of Rs.1,00,000/- with default stipulation of one year simple imprisonment.

2. According to the prosecution version, first information report was lodged by complainant Pooja Bhatia on 6.8.2013 at 12.25 at Police Station Mahanagar, District Lucknow, which was registered at Case Crime No.293 of 2013, under Sections 342, 326B, 506 IPC stating that on 6.8.2013 at about 7.30AM, she went to the Hanuman Temple for Darshan along with her brother and one family friend. When she was returning to her car, which was parked on the back of Hanuman Temple, one person came on a bike and threw acid upon her. It was sprinkled at number of places but she was saved. Assailant was the accused- Vishnu Narayan Shivpuri who is a resident of Lucknow. He was blackmailing and mentally torturing her for the last about five years and putting a false claim that the complainant is his wife. The burnt T-shirt along with written report was brought to the police station. After lodging the first information report, investigation was handed over to S.I. Santosh Kumar Tiwari. Complainant was medically examined on 6.8.2013 at about 2.30 PM at BRD Hospital, Mahanagar, Lucknow wherein no external mark of injury was found on her body. Burnt T.Shirt was taken into custody by the Constable Gyan Singh of Police Station Mahanagar.

3. During investigation, investigating officer prepared the site plan. T.shirt was sent for Forensic Science Laboratory wherein smell of Sulphuric Acid was found.

4. After completing investigation, charge-sheet was submitted against the accused-appellant.

5. Accused-appellant was charged under Section 326B IPC who denied the charges and claimed trial.

6. In order to prove its case prosecution has produced P.W.1 Pooja Bhatia (complainant), P.W.2 Achal Bhatia (brother of the complainant), P.W.3 Dr. Vinod Kumar Verma, P.W.4 S.I. Santosh Kumar Tiwari (Investigating Officer) and P.W.5 Head constable Ran Vijay Singh.

7. In the statement under section 313 Cr.P.C. accused has stated that he has been falsely implicated.

8. A written statement under Section 313 Cr.P.C. was submitted by the accused on 13.8.2014 wherein it is stated that the complainant is married to the accused. She lived with him for sometime. They were at Lucknow. She expressed her desire for further studies. Accused started efforts for her admission. P.W.2 Achal Bhatia was not happy with the marriage. He was misusing the credit card of his father at the address of Punjab Keshari News Paper Dehradun. On the directions of the complainant as well as her father. Accused moved an application for cancellation. When complainant was residing at Lucknow, one day mother of Achal Bhatia made a call that Achal Bhatia is coming to Lucknow with bad intention. Pooja should be shifted somewhere else. Accused put her separately. Next day, Achal Bhatia came to Lucknow and had quarrel with the accused and forcibly took Pooja to Dehradun. Thereafter, under the pressure of her brother, Pooja told the accused that she will not come back to Lucknow. A case under section 9 of the Hindu Marriage Act was filed by the accused at Lucknow, which was decided ex parte. When the notice of Family Court was sent, Achal Bhatia got a frivolous case registered against accused at Dehradun which was quashed by Uttrakhand High Court Nainital on 3.7.2013. Thereafter, Achal Bhatia has concocted a false story and registered the FIR.

9. After appreciating the evidence on record, learned trial court recorded finding of guilt against the accused-appellant. Accordingly, accused was convicted and sentenced.

10. I have heard the learned counsel for the appellant, learned counsel for the complainant as well as learned AGA.

11. Learned counsel for the appellant submits that the prosecution has utterly failed to prove the case against the accused beyond reasonable doubt. It is submitted that the first information report is delayed. It was an after thought. Report was lodged after due deliberations. It is further submitted that the day of incident was Tuesday wherein at the Lord Hanuman Temple, Hanuman Setu, Lucknow, huge devotees remain present since morning but no public witness was produced to support the prosecution version. At the same time, it is also submitted that although statement of injured witness itself is sufficient to prove the guilt of the accused, but in the present case, complainant Pooja Bhatia has not suffered any injury. So, she cannot be an injured witness.

12. It is further submitted that the T.shirt was not produced in the Court and no plausible explanation has been offered for non production of the T.shirt. An adverse inference should be drawn against the prosecution. It is further submitted that presence of accused-appellant at the scene of incident is also not proved. It is further submitted that report of the Forensic Science Laboratory was neither exhibited nor put to the accused in his statement under Section 313 Cr.P.C. It is further submitted that P.W.2 Achal Bhatia is brother of the complainant who is an interested witness and his testimony is not reliable. One family friend was also present along with complainant and her brother but he too was not examined.

13. It is further submitted that according to P.W.1 Pooja Bhatia taxi was hired by her with effect from 5.8.2013 to 7.8.2013. In the same taxi she went to the temple. The incident occurred near the taxi, while she was coming back from the temple. The taxi driver would have been the best person to state the whole story but he too was not examined. The investigation is also doubtful. It is further submitted that the burden lies upon the prosecution to prove the charges against the accused beyond reasonable doubt. A suspicion, howsoever strong it may be, cannot take the place of proof. Learned trial court has not appreciated the evidence in accordance with law, rather, against the settled principle of law.

14. Learned counsel for the complainant as well as learned AGA submits that the prosecution has proved the charges against accused beyond reasonable doubt. There was a strong motive for the accused as he was torturing and blackmailing the complainant for the last so many years. Accused-appellant has thrown the acid upon the complainant. But she did not received any bodily injury, rather her T.shirt got burnt.

15. It has been held in the case of Yogesh Singh vs. Mahabeer Singh and others reported in (2017)11 Supreme Court Cases 195:

16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa Ors. Vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].

16. Incident relates to 6.8.2013 at about 7.30 AM at Hanuman Setu Temple, Lucknow. FIR of the incident was lodged at Police Station Mahanagar, Lucknow on 6.8.2013 at 12.25 PM while the medico legal examination of the injured P.W.1 Pooja Bhatia was done by P.W.3 Dr. Vinod Kumar Verma on 6.8.2013 at 2.30 PM wherein no external mark of injury was found on the body of injured. Learned counsel for the appellant submits that this is a case of throwing acid upon complainant as well as informant P.W.1 Pooja Bhatia wherein the appellant has been charge-sheeted under Section 326B IPC. Section 326B IPC reads as under:

326B. Voluntarily throwing or attempting to throw acid.- Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity of burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years, but which may extent to seven years, and also be liable to fine.

Explanation 1.- For the purposes of section 326A and this section, “acid” includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.

Explanation 2.- For the purposes of section 326 A and this section, permanent or partial damage or deformity shall not be required to be irreversible.’

17. The purpose or intention of throwing or attempting to throw acid on any person is to cause permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous heart to that person. At this stage, it would be relevant that according to P.W.3 Dr. Vinod Kumar Verma, no external injury was found on body of the informant, Pooja Bhatia P.W.1. This fact is also admitted by P. W. 1 Pooja Bhatia that no bodily injury was caused to her. Rather, the acid thrown by the accused-appellant damaged the T-shirt, which she was wearing.

18. Now it is a case of attempt only and this court has to appreciate as to whether the prosecution has been able to prove the charges against the accused beyond reasonable doubt ?

19. First information report was lodged at 12.25 PM. It is admitted by P.W.1 Pooja Bhatia as well as P.W.2 Achal Bhatia, who is the real brother of P.W.1 Pooja Bhatia, that after the incident they went to their place of stay in the Cantonment Area, Lucknow. It is admitted by both of them that they were residing at District Dehradun. They arrived at Lucknow by train in the morning of 5.8.2013. Purpose for coming to Lucknow was to contact their lawyer in the family court matter, which was pending at Lucknow. The Guest House was hired by them wherein they were staying. At the time of incident, their family friend, namely, Sunil Kumar Verma was also present. P.W.1 Pooja Bhatia as well as P.W. 2 Achal Bhatia have stated that they came to their Guest House by Taxi which was hired by them on 5.8.2013. The same taxi remained with them till 7.8.2013. After the incident, they came to Guest House, they consulted each other. Deliberations took place. Thereafter, they went to Police Station Mahanagar, Lucknow wherein the written report was scribed by P.W.1 Pooja Bhatia while sitting in the car. While going from Hanuman Setu to the Cantonment Area, Lucknow in between a police outpost as well as Police Station Hazratganj are on the way but they were not prompted to lodge the report at the said police station. Rather, they went to the Guest House for deliberation. This fact attains importance keeping in view the fact that the accused was known to them who had attempted to disfigure the complainant. Accused was riding a motorcycle but in spite of all these facts, the report was not promptly lodged. No straight jacket formula can be fixed to determine the delay in lodging the FIR. In some matters delay of even more than 12 hours or so may not be considered as undue delay while in some other matters delay of five hours may also be considered as undue delay. It depends upon the facts and circumstances of each case. In the present case, both P.W.1 Pooja Bhatia, P.W.2 Achal Bhatia as well as their family friend Sunil Kumar Verma were educated people. They were knowing the intricacy of law as well as the impact there on. They were also possessing mobile sets at the time of incident. But no effort was made to immediately inform the police. This fact further attains importance when P.W.1 Pooja Bhatia and P.W.2 Achal Bhatia state that on 5.8.2013 they met Mr. Navneet Sikera, DIG, Police, Lucknow and handed over a written report against the accused. P.W.1 Pooja Bhatia has further stated that she knows the accused-appellant for the last about five years as he was harassing and torturing her during this period. It is also admitted that a petition under Section 9 Hindu Marriage Act, alleging Pooja Bhatia to be the wife of accused, was preferred by the accused at Lucknow Courts which was decided ex parte. At the same time, first information report was also lodged by Pooja Bhatia at Dehradun, which was, subsequently, on a petition filed by accused appellant quashed by the Uttrakhand High Court. With this background P.W.1 Pooja Bhatia as well as P.W.2 Achal Bhatia were knowing the accused quite well before the date of incident. But after the incident, instead of lodging a quick FIR, they went to the guest house. They had deliberations. Thereafter, they lodged first information report, at Police Station Mahanagar at 12.25 PM. The delay in lodging the first information report cannot be duly explained by the prosecution which creates doubt about the prosecution story.

20. P.W. 1 Pooja Bhatia alongwith P.W.2 Achal Bhatia arrived at Lucknow in the morning of 5.8.2013 alongwith their family friend Sunil Kumar Verma. The purpose of coming to Lucknow was to meet Mr. Manu Dixit, Advocate in relation to the dispute pending before the Family Court, Lucknow. It is categorically admitted by P.W.1 Pooja Bhatia and P.W.2 Achal Bhatia that their programme for coming to Lucknow was not known to anyone else except Mr. Manu Dixit. At the same time, they arrived on 5.8.2013. 6.8.2013 was Tuesday. They went to the Hanuman Setu Temple in the morning at 7.00 AM, which is located on a busy road. Hanuman Setu Temple has its own importance wherein the devotees starts offering prayers early in the morning. Outside the temple gate, some beggars also used to sit. There are flower vendors as well as sweet shops. This fact is admitted to the prosecution that on 6.8.2013, all of a sudden, in the morning, the injured alongwith her brother as well as family friend left for Hanuman Setu Temple by the taxi hired by them on 5.8.2013. At Hanuman Setu Temple, they parked the vehicle on the side of the main gate. They went inside the temple. They offered prayers. When they were coming out of the temple, P.W.2 Achal Bhatia was carrying Prasad while P.W.1 Pooja Bhatia was few steps ahead of Achal Bhatia. At that time accused appeared there and threw acid upon P.W.1 Pooja Bhatia. After throwing acid he escaped from the place of incident.

21. At that time, driver of the taxi alongwith devotees, flower vendors were present at the spot but none of them has been produced before the Court as a witness nor examined by the investigating officer. Although, it is true that if the statement of the injured inspires confidence couped with the medical report then there is no need for an independent witness as has been held in State of Uttar Pradesh vs. Naresh and others reported in (2011)4 Supreme Court Cases 324

“27. 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 on 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.” (emphosis applied)

22. Statement of injured coupled with medical evidence is sufficient to hold the accused guilty but the position in this case is slightly different. Admittedly, P.W.1 Pooja Bhatia did not sustain any external injury. It is admitted by P.W.3 Dr. Vinod Kumar Verma that no external injury was found on body of the injured. P.W.3 Dr. Vinod Kumar Verma has prepared the medical report narrating the same facts. In such circumstance, since P.W.1 did not sustain any external injury and when independent witnesses were present at the spot then their statement would be material and relevant to prove the prosecution case.

23. It has been held in Govindaraju @ Govinda vs. State of Sriramapuram Police Station and another, reported in (2012) 4 SCC 722

“64. In this regard, we may refer to the judgment of this Court in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. [(2001) 6 SCC 145] wherein this Court held as under:-

“19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise……..”

45. The applicability of the principle of ”adverse inference’ presupposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution.”

24. Although, P.W. 2 Achal Bhatia has been examined but he is an interested witness who is the real brother of P.W. 1 Pooja Bhatia. It was held in Mano Dutt and Anr. vs. State of Uttar Pradesh (2012) 4 SCC 79, para (33) :-

“33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the court would not fall in error of law in relying upon the statement of such witness. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in Anil Phukan v. State of Assam (1993) 3 SCC 282.”

25. At the same time, the facts and circumstances of the case should irresistibly conclude that the testimony of injured coupled with medical evidence is sufficient to prove the guilt against the accused. In the absence of such a situation, the testimony of interested witness has to be carefully examined by the Courts. P.W.2 Achal Bhatia is the real brother of P.W.1 Pooja Bhatia, who also stated that he was accompanying the informant at the time of incident. It is also admitted by him that the plan of going to temple or of their arrival at Lucknow was not known to anyone else. How accused came to know that P.W.1 Pooja Bhatia would be going to the temple in the morning at 7.00 AM? It is not the case of prosecution that the accused was following her. It is also not the prosecution case that the accused ever contacted her personally or through someone to know her schedule, then how accused came to know that Pooja Bhatia would be going to the temple in the morning at 7.00 AM? This fact is very relevant which could have been duly explained and proved by the prosecution, but the prosecution has failed to prove the same. It creates a doubt about the veracity of prosecution case.

26. The most important feature of this case is that according to P.W.1 Pooja Bhatia and P.W. 2 Achal Bhatia, burnt T-shirt of Pooja Bhatia was handed over at the Police Station, Mahanagar which was sent to Forensic Science Laboratory on 5.9.2013 wherein a report was received that presence of Sulphuric acid was found on the T.shirt. A recovery memo was prepared by constable Gyan Singh at Police Station Mahanagar wherein P.W.5 Head Constable Ran Vijay Singh was a witness of recovery. This memo nowhere bears the signatures of either Pooja Bhatia or Achal Bhatia. Further it is mentioned in the G.D. that the T-shirt was to be handed over by the employees of T.G.6 to the investigating officer. The investigating officer P.W.4 has stated that he had not taken possession of T.shirt, rather, it was directly sent to the Forensic Science Laboratory from the Malkhana of the Police Station but in the parcha no.5 dated 5.9.2013, a reference is made in the case diary that T.shirt is being sent to the Forensic Science Laboratory but the receipt of report is nowhere mentioned in the case diary. How the report was received? There are two most glaring features (i) the T.shirt was not produced before the learned trial court. (ii) The report of the Forensic Science Laboratory was not put to the accused in his statement under section 313 Cr.P.C.

27. The whole story revolves around the T-shirt which got burnt sign. The T.shirt was the material exhibit, which should have been produced before the learned trial court and the same should have been proved by Pooja Bhatia. It is not the prosecution case that T.shirt was not received back from the Forensic Science Laboratory. In report of the Forensic Science Laboratory dated 28.9.2013, it was reported that the semi burnt T.shirt had the presence of Sulphuric acid. The report was received back by C.O. Mahanagar Lucknow but no explanation is given as to why T.shirt was not produced before the learned trial court.

28. At every place it is stated that accused was riding a motorcycle and he threw the acid upon Pooja Bhatia from a small bottle but, magically, not a single drop touched her body, but the T.shirt got burnt about 50%. The whole story is highly improbable. Keeping in view the fact that the T.shirt has not been produced before the Court. If the T.shirt had been produced before the Court, it could have been seen at what place it is burnt? What was the extent of burns? Whether the burns were such which could have touched body of Pooja Bhatia which was covered by the T.shirt? Whether the T.shirt was half sleeved? Whether any sign of burns were found on the sleeved or acid was thrown at backside of the T.shirt? All these facts could only have been ascertained when the T.shirt could have been produced before the learned trial court. Even no explanation is given as to why the T.shirt was not produced. In such circumstances, non production of T.shirt itself raises a serious doubt about the prosecution version.

29. The report of Forensic Science Laboratory was not put to the accused in his statement under section 313 Cr.P.C. which caused a serious prejudice to the accused appellant. It has been held by the Supreme Court in Nar Singh vs. State of Haryana reported in (2015)1 Supreme Court Cases 496.

“9. The power to examine the accused is provided in Section 313 Cr.P.C. which reads as under:-

“313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2). No oath shall be administered to the accused when he is examined under sub- section (1). (3). The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5). The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”

11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.

12. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), it was held:

“22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.” (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700.

13. In Basava R. Patil Ors. v. State of Karnataka Ors., (2000) 8 SCC 740, Supreme Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) it was held :-

“18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”. In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

“21. ……The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word “may” in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.”

17. So far as Section 313 Cr.P.C. is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so. A three-Judge Bench of Supreme Court in Wasim Khan v. The State of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh Anr. v. State of Punjab, AIR 1974 SC 1256 held that every error or omission in compliance of the provisions of Section 342 of the old Cr.P.C. does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.

18. Observing that omission to put any material circumstance to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him, Supreme Court in Santosh Kumar Singh v State through CBI, (2010) 9 SCC 747 (Para 92), has held as under:

“92… the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him…”

19. In Paramjeet Singh alias Pamma v State of 14 Page 15 Uttarakhand (supra), this Court has held as under:-

“30.Thus, it is evident from the above that the provisions of Section 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead, he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.”

20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused. ”

30. Report of the forensic science laboratory was neither exhibit by the learned trial court nor put to the accused-appellant under Section 313 Cr.P.C.. It was a most important piece of evidence against the accused-appellant. This report was also relied upon and read in evidence by the learned trial court. No opportunity was afforded to the accused to make out a defence. Accused has suffered serious prejudice which has occasioned failure of justice to the accused. It was obligatory upon the learned trial court to question the accused on the report of Forensic Science Laboratory. A right of defence has been snatched from the accused by not putting the report to the accused.

31. Learned trial court has committed a serious irregularity or illegality in not putting the report of Forensic Science Laboratory to the accused in his statement under Section 313 Cr.P.C. whereby a valuable right of defence could not be availed by the accused-appellant.

32. P.W.1 Pooja Bhatia and P.W. 2 Achal Bhatia have stated that when the acid was thrown upon the victim Pooja Bhatia she fell down and sustained injuries. She was medically examined by P.W.3 Dr. Vinod Kumar Verma, who has stated that no external mark of injury was found on body of the injured P.W. 1 Pooja Bhatia. Had P.W.1 Pooja Bhatia fell down and sustained injuries then why the injuries were not found on her body in the medical examination of her conducted on the same day? It creates a serious doubt about the genuineness of the prosecution story. Testimony of P.W.1 Pooja Bhatia and P.W.2 Achal Bhatia is wholly unreliable and untrustworthy, no reliance can be placed to convict the accused-appellant.

33. Learned trial court has seriously erred in appreciating the evidence on record, rather, it mis-appreciated the evidence on record resulting in recording the finding of conviction against the accused.

34. Having considered the submissions and on the basis of discussion made above, I am of the considered view that the prosecution has totally failed to prove the charges against the accused beyond reasonable doubt. Accordingly, the appeal is liable to be allowed.

35. Accordingly, the appeal is allowed. Judgment and order dated 25.8.2014 passed by learned trial court is hereby set aside. Accused-appellant is acquitted of the charges under Section 326B IPC. He is in jail. He should be set free forthwith, if not wanted in any other case. Fine of Rs.1,00,000/- if paid, shall be refunded to the accused-appellant.

36. Office is directed to certify this judgment to the learned trial court forthwith to ensure compliance.

Order Date :-16.8.2018 [ Justice Anil Kumar Srivastava-II.]

Subodh/-

 

 

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