Alauddin Sk. & Ors @APPELLANT@Hash State of West Bengal & Ors

Shivakant Prasad, J.

Being aggrieved by the judgment and order dated 25th February, 2016 passed by the learned Additional Sessions Judge, Bolpur, Birbhum in Criminal

Appeal No. 02 of 2016, the petitioners have preferred this revisional application under Section 397/401 read with Section 482 of the Code of Criminal

Procedure. Shorn of unnecessary details, the prosecution case leading to the instant revision is that on 11.9.1999 at about 20.05 hours one Salehar Bibi

wife of late Sk. Gaju of Uchkaran Gram Panchayat lodged one written complaint before the Officer-in-charge of Nanoor P.S. alleging inter alia that

on 09.9.1999 at about 7.00 P.M. when her son Sk. Mukto was taking Muri in her house one Alima Bibi D/o. Sk. Alauddin came to her house and

asked her son that Alima’s “ABBAâ€​ was calling him.

Accordingly, Sk. Makto went to the house of Alima. Her father, mother, sister and chachi (aunt) gave proposal to Sk. Mukto to marry Alima and

when Sk. Mukto refused to marry Alima and was about to leave the place, her father forcefully restrained him and Alima threw acid on the face of

Sk. Mukto. Some villagers took Mukto to local police station and made arrangements for his treatment. On the basis of written complaint Nanoor P.S.

Case No. 56 of 1999 dated 01.9.2011 under Sections 341/325/326/34 IPC was started and after investigation. I.O. submitted charge-sheet against the

accused persons (hereinafter called as the petitioners) under Sections 341/325/326/34 IPC.

The petitioners were placed on trial for charges under Sections 341/325/326/34 IPC before the Court of ACJM, Bolpur, Birbhum on 13.6.2008 to

which they abjured the guilt and claimed to be tried. Prosecution to substantiate charges against the petitioners, examined as many as witnesses

including the injured. After closure of prosecution evidence petitioners were examined under Section 313 Cr.P.C. Defence is one of denial of charges

levelled against the petitioners which emerged from the cross-examination of the prosecution witnesses and so also from the answers given by the

petitioners in their statement under Section 313 Cr.P.C.

Now, the point for decision is whether the prosecution has been able to substantiate the charges against the petitioners. After hearing the prosecution

and the defence, Additional Chief Judicial Magistrate, Bolpur, Birbhum by the judgment dated 19.12.2015, found the petitioners namely, Alauddin Sk.,

Alima Bibi and Nursuba Bibi guilty of offence under Sections 341/325/326/34 IPC and convicted thereunder and on giving them an opportunity of

being heard on the question of sentence, they were sentenced to suffer simple imprisonment for one month and fine of Rs. 500/- in default to simple

imprisonment for seven days more for the offence under Section 341/34 IPC, simple imprisonment for two years and fine of Rs. 20,000/-, in default to

suffer simple imprisonment for further six months for the offence under Section 325/34 IPC and simple imprisonment for four years and fine of Rs.

40,000/-, in default to suffer simple imprisonment for one year for the offence committed under Section 326/34 IPC.

The sentences under the said three heads of charges were to run concurrently with direction for payment of 50% of fine if paid by the convicts to the

victim of crime as compensation. This judgment of the learned Magistrate was challenged by the petitioners as the appellants in Criminal Appeal No.

02 of 2016 before the learned Additional Sessions Judge, Bolpur, Birbhum which was allowed in part by altering the conviction and sentence to the

effect that instead of conviction of the appellants for the offence under Sections 325/326/341/34 IPC, they were found guilty for committing offence

under Sections 341/324/34 IPC and sentence to suffer simple imprisonment for one month and to pay fine of Rs. 500/- each for charge under Section

341 IPC and to suffer imprisonment for three years for charge under Section 324 IPC and to pay fine of Rs. 50,000/- each in default, to suffer simple

imprisonment for three months with direction that sentence shall run concurrently subject to provision of Section 428 Cr.P.C. by the impugned

judgment dated 25.02.2016.

At the outset, Mr. Avik Dutta appearing for the petitioners has contended that there has been delay in lodging the FIR to argue that the FIR is after

thought. It appears from the formal FIR that incident occurred on 09.9.1999 whereas the information was received at police station on 11.09.1999 on

the basis of which Nanoor P.S. Case No. 56/99 dated 11.09.1999 under Sections 341/325/326/34 IPC was started. The reasons for delay in reporting

the incident was due to arrangement made for the treatment of the injured because Salehar Bibi was busy with the treatment of her son in the

hospital. So, in my view the FIR cannot be considered as embellished one, lodged after thought. It is a settled position of law that delay in lodging the

FIR is not fatal to the prosecution when the delay has been explained.

Mr. Dutta further submitted that place of occurrence has been displaced and there has been variance in the statements of the witnesses since the

common theme from the deposition of the witnesses was that Sk. Mukto was found from the water of doba where he was thrown on to the bank of

the pond and none of the neighbour corroborated the prosecution case as placed by the prosecution. It may be noted that the case is based on the

ocular testimony of the victim himself as perceived by him. It is also submitted that Alima had thrown acid out of the bowl on the face of Sk. Mukto,

the injured, then the whole of the face of the injured would have suffered due to acid burn whereas the evidence reflects that only eyes were injured

to argue that it was the injured himself who inflicted such injury as he was having one sided love with Alima as the latter had married someone else. It

is submitted that there are major contradiction in the testimony of P.W.-3, P.W.-4 and P.W.-5 and the Appeal Court failed to appraise the testimony

of the victim which is at variance with the testimony of doctor P.W.-7. It is also pointed out that the Medical Board Report in respect of the victim

with regard to his infirmity due to the injury should not have been accepted in evidence and in doing so the Appeal Court below has caused prejudice

to the petitioners.

Now, this Court is called upon to appraise the evidence on record to find as to whether there is material contradiction and variance in the statements

of the prosecution witnesses. P.W.-1 Saleha Bibi, mother of the victim P.W.-6 has stated in clear crystal term that her son had disclosed to her that it

was Alima who attacked him by throwing acid on his eyes. P.W.-1 has proved the written complaint ascribed by one Pintu Chaudhury at her

institution which finds corroboration by her being maker of the FIR pointing out that Alima had called her son Mukto Sk. to visit the house of her

father Alauddin Sk. who had proposed him to marry his daughter Alima but when he refused to accept the proposal to marry her and tried to leave the

house, said Alauddin Sk. restrained him and Alima threw acid on his face. Admittedly, P.W.-1 was not in her house at the material point of time and

the villagers took her injured son to Police Station wherefrom he was sent to Hospital at Sian for treatment.

According to P.W.-2, at the instruction of P.W.-1 he wrote the complaint and after contents of the complaint was read over and explained to her, she

put her LTI proved as an Exhibit-1. Investigation culminated in Charge-sheet No. 85 dated 28.12.1999 under Sections 341/325/326/34 IPC against the

petitioners namely Alauddin Sk., Alima Bibi and Nursuba Bibi to face trial in open Court. According to Md. Ismail P.W.-3, when he along with others

were sitting at Baithak khana, he heard a screaming noise and rushed to the spot and found Sk. Mukto lying ground near the house of Alauddin. P.W.-

3 along with others took him to Nanoor Hospital. He had seen blood oozing out from his face and on being asked the victim had disclosed that Alima

threw acid on his face. P.W.-3 admitted the fact that the marriage of Alima had taken place prior to the incident and testified the fact that Rejaul soon

after the marriage had left for Delhi for his livelihood. I find minor contradiction to the effect that he along with other persons were sitting on the

northern side of Mokam pond but they were not at Baithak Khana. Such minor contradiction elicited by defence during cross-examination does not go

to the root of the case. Admittedly, P.W.-3 saw Mukto Sk. lying outside the pond towards North Western corner of the pond and many co-villagers

rushed to the place of occurrence. Mukto was moving rapidly for help.

According to P.W.-4 a co-villager heard that Alima threw acid on the face of Sk. Mukto. P.W.-5 another co-villager has corroborated the P.Ws. 3

and 4 by saying that Alima threw acid on the face of the victim P.W.-6. Though there are minor contradictions but those are not material

contradictions to shake the root of the prosecution because the victim disclosed to him that Alima had thrown acid on his face. The testimony of P.W.-

5 is unimpeachable. It is principle of law though the judgment may be confronted with discrepancies in evidence on minor counts but they do not

necessarily spell inveracity and tostored technicalities do not necessarily upset conviction, when the Court has had a perspicacious, sensitive and

correctly oriented view of the evidence and probabilities to reach conclusion.

Sk. Mukto the victim P.W.-6 is the first eye witness to the occurrence. In unequivocal term he deposed that on the day of incident when he was in his

house Alima Bibi came to call him saying that her father had called him and then and there he accompanied her to her house and her father Alauddin

Sk. asked him to be seated and proposed him to marry his daughter Alima but the victim declined to accept the proposal by saying that Alima had fled

away with Rejaul. When he tried to leave his house, Alauddin and his wife caught hold of his hand and Alima came with the bowl of acid and threw

on his face and eyes and he started shouting and then he was pushed out from the western side door of the house and he fell near a pond. One person

came and rescued him and placed him on the embankment of the pond and the villagers namely, Sk. Kader, Sk. Rejaul, Md. Ismail asked him about

the incident then he disclosed to them that it was Alima who threw acid on his face and eyes causing injury to him. He was taken to Nanoor Hospital

and from there he was taken to police station and then shifted to Sian Hospital and from Sian Hospital he was sent to Burdwan Medical College &

Hospital for better treatment on the following day where he was under treatment as indoor patient. After his discharge from Burdwan Medical

College & Hospital, he was taken to Chennai Sankara Nethralaya.

P.W.-6 stood the test of cross-examination by the defence and his ocular testimony goes unimpeached, save and except defensive suggestion put to

him that he was in love with Alima and had liking for her and willingness to marry her but she did not agree to marry him and for that he had no ire

against her. Such a suggestion appears to have been made to the P.W.-6 as a defensive plea to argue that Mukto Sk. being unsuccessful to marry her,

he attempted to injure himself by pouring acid on his face due to infatuation.

It is also argued that acid bowl was not seized by the police. I am of the view that the non-seizure of the acid bowl is not fatal to the prosecution case

on the contrary, the ocular testimony of victim P.W.-6 finds corroboration by the medical evidence of Dr. Naresh Banerjee P.W.-7 who had examined

him and found blackish colour over the right side of face including right upper eye lid and nose, both eyes swollen, lower lips swollen and also interior

aspect of the tongue. Brownish spot also present over left side of the upper face and right shoulder region. In the opinion of the doctor the injury was

recent one and it was caused by corrosive agent. This testimony of the doctor also finds corroboration by the injury report Exhibit-2.

Dr. Sanatan Banerjee P.W.-8 was posted in Burdwan Medical College & Hospital. According to him, no document was produced before him at the

trial to show that he had examined the patient. However, it is axiomatic from the Medical Report Exhibit- 4 and Record in-patient Exhibit- 5 that

Mukto Sk. was admitted on 09.9.1999 at 11.30 P.M. with acid burn injury on being referred from Nanoor P.H.C. under Dr. D. Das and thereafter he

was referred from Bolpur S.D. Hospital and admitted on 12.9.1999 in Burdwan Medical and College & Hospital and was discharged on 29.9.1999 for

having suffered acid burn injury on his face, neck and both eyes as per Discharge Certificate Exhibit-6.

Ms. Ameena Kabir learned Advocate for the de facto complainant and the victim and Mr. Ayan Basu learned Advocate for the State have argued

that the victim underwent treatment for 17 days in Burdwan Medical and College & Hospital and prior to that he was under treatment for 03 days in

Nanoor PHC, S.D. Hospital, Bolpur, Birbhum and also in Kandi Hospital Murshidabad and he was treated in Sankara Nethralaya. Thus, he was under

treatment for more than 20 days which squarely falls under Section 320 of the Indian Penal Code which defines grievous heart and further argued that

P.W.-6 suffered permanent deprivation of eye sight. It is also pointed out that injured lost his eye sight as would be evident from Disability Certificate

Exhibit-7. It is contended that the learned Appeal Court below failed to consider the outdoor ticket and bed-head ticket simply because the attending

doctor could not be examined thereby modifying the conviction from 325 and 326 to Section 324 of the IPC, though, Investigating Officer proved the

said documents and argued that those documents are admissible in evidence in view of the provision of Section 35 and 74 of Evidence Act and

referred to a decision in case of Ramani Bala Devi vs. Kanai Lal Malakar reported in AIR 1965 Tripura 17 relying on observation made in paragraph

24 and 25 which are reproduced for better appreciation thusâ€

“24. The learned Counsel for the appellant further urged that the Outdoor ticket and the two discharged certificates are inadmissible in evidence, so

the Magistrate should not have admitted them in evidence. By admitting them in evidence he erred and hence he came to an erroneous finding.

The learned Counsel for the respondents in order to rebut this argument contended that they are the public documents and admissible In evidence

on the combined effect of Sections 35 and 74 of the Evidence Act. I too feel that there is no force in the contention of the learned Counsel for the

appellant. These documents have been produced to show the entries in the Official Register made by a public servant in the discharge of his official

duties, therefore they are admissible in evidence.â€​

Reference is also made in case of Prithi Chand v. State of Himachal Pradesh reported in AIR 1989 Supreme Court Cases 702 in which case, learned

Advocate for the appellant’s contention was that the carbon copy of the medical certificate was inadmissible in evidence since the prosecution

had failed to produce the original certificate. It was observed that Section 32 of the Evidence Act provides that when a statement, written or verbal, is

made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and

admissible in evidence. Besides, since one carbon copy was made by one uniform process the same was primary evidence within the meaning of

Explanation 2 to Section 62 of the Evidence Act. Therefore, the medical certificate was admissible in evidence.

P.W.-9 is the Investigating Officer who has proved the case of the prosecution for having conducted the investigation and submitted Charge-sheet on

the basis of Bolpur P.S. Case No. 56/99 dated 11.09.1999 under Sections 341/325/326/34 IPC vide Exhibit-3.

In consideration of ocular testimony of P.W.-6, the injured, the Injury Report Exhibit-2, Medical Report Exhibit- 4 and Record in-patient Exhibit- 5 duly

proved by the doctor P.W.-7 taken together with the oral testimonies of P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5, I am unable to agree with the

contention raised by Mr. Dutta that the injury was self-inflicted by the injured himself as he was in one side of love affair with Alima.

As regards Disability Certificate of the victim Exhibit-7 proved by the P.W.-1, it is argued by Mr. Dutta that none of the members of the Medical

Board was examined by the Court in proof of the Disability Certificate and therefore, the said Certificate cannot be accepted. It is also pointed out

that Exhibit-7 is in respect of one Manirul Sk. whereas the victim name is Mukto Sk. The learned Additional Sessions Judge while scrutinizing the

Exhibit-7 was of the opinion that the Certificate of Disability was issued by the Government of West Bengal, therefore, it is a public document within

the meaning of Section 74 of Evidence Act, 1872 and to proof the same the Register was produced by Clerk of the Department, though it could not be

possible for the Chairman, or the other members of the Board to be brought to the Court.

In the opinion of the trial Court Exhibit-7 is itself an authenticated document of proof of 100% disability of vision of the patient and from the very

inception of the case, de facto complainant stated that her son had totally become blind due to the incident. It is argued that the Disability Certificate is

not that of the victim Mukto Sk. To dispel the misgiving in the mind of the learned Judge, the prosecution produced the original Ration Card and EPIC

Card of the victim on affidavit declaring that victim Mukto Sk. is also known by the name Minarul Sk. The learned Appeal Court was of the opinion

that since the doctor or any other member of the Board was not examined and even if for the argument shake it is assumed that Exhibit-7 can be

admitted in evidence as a relevant document having probative value, it can lead to the conclusion that victim is visually impaired person but it cannot be

said that the victim had lost his eye sight due to acid burn injury sustained by him. However, taking into consideration EPIC Card, Ration Card bearing

the name of father of the victim and the address of both Minarul Sk. and Sk. Mukto being the same, it was held that the Disability Certificate is that of

the injured who lost his eye sight permanently according to Trial Magistrate.

Therefore, I am unable to accept the said findings of fact not proved on evidence as it may be prejudicial to the petitioners/accused persons, however,

considering the ocular testimony of P.W.-6 victim being the first eye witness to the occurrence and other prosecution witnesses, it cannot be said that

the victim has falsely implicated the petitioners/accused persons by leaving out the culprits by falsely implicating the innocent.

I am also of the view that learned Judge was not right in concluding that Minarul Sk. and Sk. Mukto is the self same person. It was imperative for the

learned Trial Court below being the court of facts to have re-examined Sk. Mukto P.W.-6, mother de facto complainant P.W.-1 and his father on oath

for coming to the said conclusion that Minarula Sk. and Mukto Sk. is the self-same person.

On the point of sentence, Ms. Ameena Kabir, learned Advocate for the victim submitted that mitigation of punishment is not possible in the given

case. There should be no mercy for acid attack on the convict and fortified her argument by placing reliance in case of Ravada Sasikala v. State of

Andhra Pradesh and another reported in (2017) 2 Supreme Court Cases (Cri.) 436 : (2017) 4 Supreme Court Cases 546 on the observation in

paragraph 20 to argue that punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from

repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole and

that in case of acid attack and the circumstances having been brought home by cogent evidence and the conviction was given the stamp of approval,

there was no justification to reduce the sentence by the judgment impugned and further submitted that the learned Judge was guided by some

unknown notion of mercy and thus relied on the observation in paragraph 23 of the judgment which is reproduced hereunderâ€

“23. In view of what we have stated, the approach of the High Court shocks us and we have no hesitation in saying so. When there is medical

evidence that there was an acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given

the stamp of approval, there was no justification to reduce the sentence to the period already undergone. We are at a loss to understand whether the

learned Judge has been guided by some unknown notion of mercy or remaining oblivious of the precedents relating to sentence or for that matter, not

careful about the expectation of the collective from the court, for the society at large eagerly waits for justice to be done in accordance with law, has

reduced the sentence. When a substantive sentence of thirty days is imposed, in the crime of present nature, that is, acid attack on a young girl, the

sense of justice, if we allow ourselves to say so, is not only ostracized, but also is unceremoniously sent to “Vanaprasthaâ€. It is wholly

impermissible.â€​

In respectful consideration of the observation in the cited decision, although, there may not be a full proof case of 100% blindness of the victim due to

failure to proof the Disability Certificate of the victim by the prosecution, nevertheless, I am of the considered view that the learned Appeal Court

below dealt with the petitioners/accused persons with lenity in the matter of awarding sentence. It might be that unknown notion of mercy was due to

old age of the accused persons namely, Alauddin Sk. father and Nursuba Bibi mother of the principle accused Alima Bibi which prevailed in the

judicial mind of the learned Appeal Court below.

Therefore, taking cue from the decision in case of Ravada Sasikala (supra), the conviction and sentence reduced to punishment for the charge under

Section 324/34 IPC and to suffer imprisonment for three years and to pay fine of Rs. 50,000/- in default to simple imprisonment for three months

thereunder instead of conviction under Sections 325/326/341/34 IPC by the impugned judgment of the Appeal Court below is hereby set aside.

The judgment of conviction and sentence passed by the learned ACJM, Bolpur, Birbhum dated 19.12.2015 in GR case no. 348/1999 for the substantial

charge under Section 326 IPC with the sentence to suffer simple imprisonment for 4 (four) years and fine of Rs. 40,000/-, in default to simple

imprisonment for 1 (one) year as against the petitioner/accused Alima Bibi, who had splashed acid on the face and eyes of the victim is revived.

However, the conviction and sentence for the charge under Section 326/34 IPC is hereby set aside as against the petitioners/accused persons namely,

Alauddin Sk. and Nursuba Bibi. But the conviction and sentence for the charges under Section 341/34 and Section 325/34 IPC against the said

Alauddin Sk. and Nursuba Bibi remains unchanged.

Petitioners/accused persons are directed to surrender before the learned Additional Chief Judicial Magistrate, Bolpur, Birbhum within thirty days from

the date hereof to serve out the sentence. Accordingly, the revisional application being CRR 1697 of 2016 is dismissed. A copy of this judgment along

with LCR be sent down to the learned Court below forthwith. Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties

upon compliance with all requisite formalities.